KAILASH CHANDRA Vs. REKHA

JUDGEMENT

(1.) HEARD learned counsel for the parties.

(2.) THE brief facts of the case are that the plaintiffs-appellants filed the suit for eviction against the defendant-respondent, who expired during the pendency of this appeal on 26th Sept., 1977 for getting decree for eviction on the grounds that the suit premises was let out to the defendant for which rent deed was executed on 2nd Aug., 1976 wherein it was agreed that rent of the premises will start from 8th Nov., 1976. The defendant did not pay the rent of the premises, therefore, the landlords served a registered notice terminating the tenancy of the defendant and requested defendant to hand over the possession of the premises upon which the possession of the part of the premises was delivered to the landlords and the defendant requested that he may be given some time for vacating the rest of the portion of the rented premises. According to the plaintiffs, the defendant did not vacate the rest of the premises, therefore, the plaintiffs are entitled for the decree for eviction as well as for arrears of the rent. The trial court framed various issues. The defendant produced three witnesses whereas no witness was examined by the defendant. The trial court decreed the suit of the plaintiffs on 27th Jan., 1979. The said decree was challenged by the defendant by filing appeal before the Court of District Judge, Jalore. The learned District Judge, Jalore allowed the appeal of the tenant-defendant by judgment and decree dated 26th Oct., 1979. It is relevant to mention here that in appeal, the decree was challenged only on the ground of not serving a notice under Section 106 of the Transfer of Property Act and it was submitted that the plaintiffs were entitled only for the arrears of rent, but were not entitled for the future rent. The first appellate court dismissed the suit of the plaintiffs so far as it relates to the relief of possession on the ground of not serving notice under Section 106 of the Transfer of Property Act. The first appellate Court also modified the decree relating to the claim of the rent of the plaintiffs holding that the plaintiffs are entitled for rent upto the date of filing of the suit amounting of Rs. 337/- only. 2. This Court while admitting the appeal on 26th Nov., 1979 framed following issue :-

(3.) LEARNED counsel for the respondents submits that such a plea was not taken by the plaintiffs before the Courts below and therefore, cannot relied upon this proposition particularly in view of the fact that according to the plaintiffs themselves, they issued a notice terminating tenancy of the defendant, which impliedly means that there was no condition dispensing with the notice under Section 106 of the Transfer of Property Act.