KESARDEO Vs. BHOORIDEVI

JUDGEMENT

(1.) THIS is a second appeal by plaintiff appellant Kesardeo filed against the judgment and decree, dated April 24, 1972 of the learned Additional District Judge. Churu, in Civil First Appeal No. 7 of 1971 by which, the judgment and decree for ejectment passed by the learned Munsif Magistrate, Churu was reversed.

(2.) THE facts relevant to the disposal of this appeal are these. The defendants respondents were the tenants of the suit -house situated in Churu under a rent -note dated March 28, 1945. The tenancy was monthly and rent was payable at Rs. 40/ - per annum yearly. On 21 -4 -66, the plaintiff -appellant purchased the suit house from the original owner and land -lord for a sum of Rs. 5,700/ under a registered sale -deed. On 25 -6 -66, the plaintiff -appellant gave notice to the defendant for terminating their tenancy with effect from July 27, 1966 or in the alternative, with effect from any date between 20 -7 -66 to 17 -8 -66, on which date, the tenancy expired according to them. On 18 -10 -66, the plaintiff filed a suit for ejectment and far a sum of Rs. 120/ - as a(sic)ncare of rent for the last 3 years i.e. from 28 -8 -63 to 27 -8 -66. The ejectment was sought on the ground of personal necessity and default in payment of rent by the defendants. The suit was resisted on various grounds and it was alleged that the plaintiff had no right to recover the arrears of rent before the date of sale of the suit premises in his favour and, therefore, the defendants were not defaulters in payment of rent. In the alternative, it was pleaded that rent upto 26 -3 -66 was paid to previous landlord Chiranjilal. The house was not required by the plaintiff for his reasonable and bonafide necessity. The legality of notice was also challenged and it was asserted that the tenancy was yearly. The learned Munsif held that the tenancy was monthly though the mode of payment of rent was yearly. It was further held by him that the plaintiff had no right to recover the arrears of rent from the defendants due in respect of the period before 21 -4 -66, the date on which, he purchased the suit premises from the previous landlord Chiranjilal. However, it was found that the defendants were defaulter in payment of rent for more than 3 years to Chiranjilal and, therefore, the plaintiff was entitled to get a decree for ejectment. In this view of the matter, the learned Munsif Magistrate granted a decree for ejectment in favour of the plaintiff. The learned appellate court, in appeal held that the tenancy was yearly because of the judgment of the Civil Judge, dated April 24, 1970, Ex. 2 between the previous landlord Chiranjilal and the defendants. This finding was res judicate between the present parties. Therefore, notice Ex. 9 was invalid. The learned appellate court also agreed with the findings of learned Munsif that the suit premises was not required by the plaintiff reasonable and bonafide for his personal use and occupation. It was further held that the plaintiff could not recover Rs. 120/ - the arrears of rent due to Chiranjilal because this right was not given to him by the previous landlord though the finding of the learned Munsif was not disturbed on the fact that this rent was due from the defendants. It was further held that the plaintiff purchased this suit property on 21 -4 -66 and be filed a suit on 18 -10 -66. Since, the tenancy was yearly, the defendants were not defaulters in payment of rent to the plaintiff as he bad no right to recover the arrears of rent due to the previous landlord. As such, the plaintiff could not pet the decree for ejectment on the ground of default in payment of rent for 3 years to the previous landlord.

(3.) IT was argued by the learned Counsel for the appellant that the question of the validity of notice is of little importance in this appeal because as held by their Lordships of the Supreme Court, the notice under Section 106 of the Transfer of Property Act to the tenant was not necessary before filing of a suit for ejectment on any of the grounds available under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act'). I am inclined to agree with this contention that no notice is necessary under Section 106 of the Transfer of Property Act determining the tenancy before the filing a suit for eviction by the landlord against the tenant. It was thus observed in Dhanapal Chettiar v. Yesodal Ammal : [1980]1SCR334 . In order to get a decree or order for eviction against a tenant under any State Rent Control Act it is not necessary to give notice under Section 106 T.P. Act. Determination of a lease in accordance with the Transfer of Property -Act is unnecessary and a mere surplusage became the landlord cannot get eviction of the tenant even after such determination The tenant continues to be so even thereafter. That being so, making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease by issue of notice in accordance with Section 106 of the T.P. Act. On the question of requirement of such a notice under Section 106 T.P. Act the difference in the language of various State Rent Acts does not bring about any distinction. It is not correct to say that Section 106 of the TP Act merely providing for termination of a lease either by the leasor or the lessee by giving the requisite notice it an extra protection against eviction. The purpose of this provision is is merely to terminate the contract which the overriding Rent Acts do not permit to be terminated.