RAJA RAM Vs. MANOHAR LAL

JUDGEMENT

(1.) THIS miscellaneous civil second appeal is directed against the judgment dated April 6, 1971 of the District Judge, Jammu, affirming the judgment and order dated March 15, 1971 of the Munsiff Jammu.

(2.) THE facts leading to this appeal are: Shri Manohar Lal, respondent, herein obtained an ex parte decree from the Munsiff Jammu on February 20, 1964, for eviction of the appellant from a house situate at Talab Tillo, Jammu, The respondent took out execution of the decree but on an objection taken by the appellant the executing court acting under the provisions of the Indian Soldiers (Litigation) Act 1925, stayed the execution vide its order dated March 25, 1964. The respondent thereupon took the matter in appeal but was unsuccessful. After the termination of emergency the respondent filed another application for execution of the decree on August 13, 1968. This application was also resisted by the appellant inter -alia on the grounds that the execution could not proceed in view of the provisions of the Indian Soldiers (Litigation) Act and renewal of the tenancy due to the acceptance of the rent and admission of the appellant as a tenant by the respondent. The objection based on the provisions of the Indian Soldiers (Litigation) Act, was overruled and a warrant for eviction of the appellant was issued by the executing court on March 17, 1969. The appellant thereupon filed an appeal to the District Judge, who remanded the case to the executing court with the direction that the other objections raised by the appellant regarding the inexecutability of the decree should also be decided. Pursuant to the directions of the District Judge the executing court gave the parties an opportunity of adducing evidence and after recording and considering the same over -ruled the objection of the appellant vide its order dated March 15, 1971, and again issued a warrant of eviction against the appellant. On appeal the order of the executing court was up -held by the District Judge, vide his judgment dated April 6, 1971. It is against this judgment that the present appeal has been filed.

(3.) THE short question that arises for determination in this appeal is whether the decree has become inexecutable in consequence of the withdrawal by the decree -holder respondent of the amounts deposited from time to time by the appellant in the office of the Rent Controller before filing the last execution application on August 13, 1968. For a proper decision of this question it is necessary to refer to Section 116 of the Transfer of Property Act, which runs as under: - "If a lessee or under -lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under -lessee, or otherwise assents to his continuing in possession the lease is, in the absence of an agreement to the contrary, renewed from year to year or from month to month, according to the purpose for which the property is leased, as specified in Section 106." A close scrutiny of the section would show that it envisages on one side an offer taking a renewed or fresh demise evidenced by the lessees or sub -lessees continuance in occupation of the property after his interest has ceased, and on the other side a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise.