STATE Vs. FAZAL BIBI

JUDGEMENT

(1.) Mst. Fazal Bibi, respondent-plaintiff filed suit in the Court of City Judge, Srinagar for ejectment of the appellant-defendant from a house situate at Batmaloo Dhobi Mohalla, Srinagar leased out for running a Girls Primary School and also claimed Rs.980/- as arrears of rent. The rent fixed was Rs.30/- per month but later on, on the representation made by the plaintiff it was raised to Rs.49/- per month with effect from 17-5-1969 but the plaintiff wanted enhanced rent of Rs.150/- per month and she made the same as basis for ejectment. The defendant State contested the suit on various counts and according to it, the amount of rent was to be fixed after getting the assessment made by the P.W.D. authorities and also the rent could not be increased because the plaintiff had forcibly occupied one room and one verandah of the premises.

(2.) On the pleadings of the parties, the trial Court raised the following issues:

(3.) Whether plaintiff is entitled to ejectment and recovery of Rs.980/- as arrears of rent from the State? O.P.D. 4 Whether plaintiff has occupied forcibly part of the leasehold and thereby disentitled herself to claim any rent for the tenement? O.P.D. 5. To what relief, if any, plaintiff is entitled? The plaintiff besides himself examined three witnesses but the defendant did not adduce any evidence. Learned City Judge after hearing both the sides, decreed the suit of the plaintiff regarding her claim for arrears of rent but dismissed her suit with regard to ejectment mainly on the ground that notice under Sec.106 of the Transfer of Property Act (T. P. Act, for short) had not been served upon the defendant. The plaintiff filed appeal against the said judgment and decree of the City Judge and the learned Second Additional District Judge, Srinagar, vide judgment dated 29-12-1978 accepted the appeal of the defendant and decreed her suit for ejectment as well. Aggrieved by this judgment and decree, the defendant-State has come up in second appeal before this Court. 3. Vide order of this Court dated 11-11-1980, the case was ordered to proceed ex parte against the respondent as she refused to accept the service.