KAMAL KISHORE CHITLAGIYA Vs. RAMKAWARI DEVI JHAWAR

JUDGEMENT

(1.) The defendant-appellant has preferred this civil second appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 22.5.2012 passed by the Additional District Judge, Kishangarh (District Ajmer) in Civil Regular Appeal No.24/2009 whereby the learned appellate Court has upheld and affirmed the judgment and decree dated 29.7.2009 passed by the trial Court i.e. Civil Judge (Junior Division), Kishangarh (District Ajmer) in Civil Suit No.134/2004 whereby the learned trial Court decreed the suit for eviction filed by the plaintiff-respondent.

(2.) In the present appeal the following important question of law has been raised:-

(3.) Brief relevant facts for the disposal of this question are that the plaintiff-respondent filed a suit for eviction under the provisions of the Transfer of Property Act, 1882 (hereinafter to be referred as "the Act") against the defendant-appellant in respect of the suit shop situated at Kishangarh, a Municipal Town, with the averment that tenancy of the appellant has been terminated by reason of a notice dated 10.7.2004 issued under Section 106 of the Act. Although, in the written statement filed by the appellant no such objection was taken that the suit filed under Section 106 of the Act is not maintainable by the reason that with effect from 1.4.2003, the Rajasthan Rent Control Act, 2001 (hereinafter to be referred as "the New Act) has been made applicable or that even after the repeal of the Old Act, the provisions of the same are still applicable to those Municipal towns of the State of Rajasthan which do not comprise the District Headquarters and the suit should have been filed under the provisions of the new Act or in the alternative under the provisions of the Old Act but during trial a specific objection was raised on behalf of the appellant that the suit is not maintainable under the provisions of the Act as provisions of New Act are applicable to the Municipal Town of Kishangarh also. The objection so raised was considered and rejected by the trial Court. Ultimately, the suit was decreed by the Court by finding that the tenancy of the appellant has been validly terminated. Feeling aggrieved, the appellant filed appeal under Section 96 CPC and the same was dismissed by the appellate Court vide judgment and decree dated 22.5.2012.The learned appellate Court upheld and affirmed each and every finding of the trial Court including the finding that provisions of the New Act have not been made applicable to those municipal areas of the State of Rajasthan which do not comprise District Headquarters and the suit has been validly filed under the provisions of the Act. It is pertinent to note that no such question was raised by the appellant before both the Courts below that even after repeal of the Old Act, the provisions of the same are still applicable to the Municipal Towns other than the Municipal areas which are comprising the District Headquarters and a suit for eviction is required to be filed under the provisions of the Old Act. It is for the first time in this second appeal a question has been raised on behalf of the appellant that the premises situated in the Municipal Town of Kishangarh are governed by the provisions of the Old Act.