MANI RAM Vs. DUTTA RAM

JUDGEMENT

(1.) PLAINTIFF -appellant filed a suit for ejectment with respect to a shop situated in village Sanoj Tehsil Udhampur in the Court of Sub -Judge, Udhampur on 21.7.1975 alleging therein that the defendant -respondent who was his tenant was not entitled to the protection of the provisions of the Jammu and Kashmir Houses and Shops Rent Control Act and that he was liable to vacate the shop after the determination of the tenancy by afflux of time. It was submitted that the disputed shop was leased out to the defendant vide a duly executed rent deed dated 11th Sept. 1972 on a monthly rent of Rs. 20/ - and the tenancy commenced for a period of 11 months with effect from 1st Sept. 1972. After the expiry of the contractual period of tenancy the defendant -respondent did not vacate the premises and remained in occupation. The tenancy is alleged to have been thereafter determined by the service of notice in terms of section 106 of the Transfer of Property Act directing the defendant to vacate and handover the possession of the shop to the plaintiff before 30th June, 1975, and as the shop was not vacated the plaintiff -appellant filed a suit in the trial court. On the basis of the pleadings of the parties the trial court vide its order dated 10.11.1975 framed the following issues :

(2.) THE plaintiff examined Hari Bhagat clerk of his Advocate in addition to his own statement. Nobody appeared as witness on behalf of the defendant -respondent. Rent note was also placed on record along -with the postal acknowledgement receipt. The trial court vide its judgment dated 8.12.1976 held that, Section 116 of the Transfer of Property Act makes it abundantly clear that any such holding over would be a tenancy for month to month. Defendant has not proved his case as that of tenant by holding over and in, this state of affairs no notice termination the tenancy was required though the plaintiff has served a valid notice in this case. Issue No. 1 is decided in favour of the plaintiff,  and decreed the suit with costs.

(3.) IN appeal the learned District Judge vide the judgment impugned in this appeal set aside the judgment and decree of the trial court and dismissed the suit of the plaintiff by holding that the notice EXPA allegedly served upon the defendant was not a valid notice. Aggrieved by the judgment and decree of the learned District Judge, Udhampur this appeal has been filed on the grounds that the appellate court below has committed an error in holding that the defendant -respondent was a tenant holding over and that he was entitled to a notice under law. It is submitted that the District Judge has erred in holding that the tenancy in question was not a fixed term and that the defendant was entitled to a notice before the suit against him could the filed. It is submitted that the defendant has pot raised any allegation in the written statement that he had paid any rent to the plaintiff after period .of expiry of original period of tenancy and also in view of the fact that he had not led any evidence to establish his continuance in the premises in question with the consent of the plaintiff, it was not possible to hold that the defendant was a tenant holding over in the disputed premises. It is submitted that the notice served upon the defendant was legal and valid