AKSHAY SOOD Vs. SANTOSH SHARMA

JUDGEMENT

(1.) THIS Regular Second Appeal has been directed against the judgment and decree dated 1.6.1998 passed by the learned District Judge, Shimla in Civil Appeal No. 18 -S/13 of 1996.

(2.) BRIEF facts necessary for the adjudication of this Regular Second Appeal are that the appellants -plaintiffs (hereinafter referred to as ˜the plaintiffs for convenience sake) filed a suit for possession of shop situated in Khasra No. 416/415/375/5 measuring 2 Biswas in Mauza Gawahee, Pargana, Gawalathi, Tehsil Theog, District Shimla, H.P. from the predecessor -in -interest of the respondents -defendants (hereinafter referred to as ˜the defendant for convenience sake). The shop was rented to defendant Sh. Om Prakash. He was doing the business of Halwai in the shop. The premises were required bonafidely by the plaintiffs for doing their own business. The plaintiffs had issued a notice to the defendant terminating the tenancy on 13.5.1991. He did not vacate the shop despite notice and he was thus according to the plaintiffs was in illegal possession. The plaintiffs have claimed Rs. 240/ - as use and occupation charges from 3.5.1991 to 23.9.1992. The defendant contested the suit and inter alia averred that the tenancy was created 35 years back and the notice issued is invalid. He has further contended that the notice did not terminate the tenancy and according to him, the tenancy was permanent and irrevocable. The plaintiffs filed the replication to the written statement filed by the defendant. The trial Court on the basis of the evidence led by the parties decreed the suit. The defendant feeling aggrieved by the judgment and decree passed by the trial Court preferred an appeal before the learned District Judge, Shimla. The learned District Judge, Shimla accepted the appeal on 1.6.1998. This Regular Second Appeal has been directed against the judgment and decree dated 1.6.1998. This Regular Second Appeal was admitted on the following substntial questions of law framed with the memorandum of appeal :

(3.) MR . G.D. Verma, Senior Advocate has argued that his client was carrying manufacturing process while preparing the sweets and thus notice of six months was required under Section 106 of the Transfer of Property Act, 1882. He also contended that from the language of the notice, it is clear that the tenancy has not been terminated. He lastly contended that since his client was in possession as tenant for more than 35 years, it was not required to be registered since the provisions of Sections 54, 107 and 123 of the Transfer of Property Act, 1882 had been made applicable to the State of Himachal Pradesh with effect from 6.1.1971.