OLIVE MAY DUTT Vs. KRISHAN KUMAR BHARGAV

JUDGEMENT

(1.) This Regular Second Appeal is directed against the judgment and decree dated 15.01.2010, passed by the learned Additional District Judge, Fast Track Court, Kullu, H.P. in Civil Appeal No. 49 of 2009.

(2.) Material facts necessary for adjudication of this Regular Second Appeal, are that respondent-plaintiff, Krishan Kumar Bhargav (hereinafter referred to as "the plaintiff" for convenience sake) had filed a suit for possession against the appellant-defendant, namely, Ms. Olive May Dutt (hereinafter referred to as "the defendant" for brevity sake). According to the plaintiff, Shri Bankey Lal was owner of the suit land/property, measuring 1 bigha, 2 biswa, comprised in Khasra No. 53 min Khata/Khatauni No. 71/107. He had constructed one and half storeyed house consisting of two rooms, one kitchen, one Veranda and one attic and on the remaining suit land, he had raised orchard. The suit house was rented out by late Shri Bankey Lal to one Madan Mohan Dutt, British National at the annual rent of 1700/- in the year 1975. Defendant also started residing with said Madan Mohan Dutt and claimed herself to be his wife. Plaintiff and performa defendants inherited the suit property being legal representatives of Shri Bankey Lal Bhargav. Shri Madan Mohan Dutt kept on paying rent to the plaintiff and performa defendants. Shri Madan Mohan Dutt shifted somewhere else, however, the defendant continued paying rent to the plaintiff and performa defendants uptill 1994. She stopped paying rent after 1994. According to the plaintiff, the defendant was not inducted as tenant directly. However, she was holding the property and had been claiming herself to be the tenant of the suit property. According to the averments contained in the plaint, the plaintiff and performa defendants did not own any other house and property in Manali. They wanted suit property for their bonafide personal use and asked defendant to vacate the suit property. She refused to vacate the same. Thereafter, a notice was issued under Section 106 of the Transfer of Property Act, terminating her tenancy over the suit property and calling upon her to vacate the suit property. A suit was also instituted by the plaintiff and performa defendant No. 2 bearing Civil Suit No. 45 of 2000 against defendant No. 1, which was partly decreed by the learned Sub Judge Ist Class, Manali. Defendant preferred an appeal before the learned District Judge, Kullu. He allowed the appeal and dismissed the suit, holding that notice to terminate the tenancy should have allowed the period of 6 months to vacate the suit property. Thereafter, fresh notice was issued to the defendant on 30.05.2002 under Section 106 of the Transfer of Property Act, vide which tenancy of the defendant was to be terminated by the end of December, 2002. The defendant was called upon to vacate the suit property and hand-over the possession of the same by 1st January, 2003. However, the defendant has not vacated the suit property. The defendant has not paid the rent after 1994. According to the plaintiff, he and performa defendants are entitled to mesne profits @ 10,000/- per year w.e.f. 1994 to 2003 till the vacation of the suit property.

(3.) Plaintiff has not filed any replication. The issues were framed on 13.05.2005. The learned Civil Judge (Junior Division) Manali, District Kullu decreed the suit on 27.07.2007. Defendant preferred an appeal before the learned Additional District Judge, Fast Track Court. The same was dismissed on 15.01.2010. Hence, this Regular Second Appeal.