KAILASH CHAND PAREEK Vs. GOPAL LAL

JUDGEMENT

(1.) THIS second appeal under Section 100 CPC has been filed against the judgment and decree dated 09.02.2009, passed by the Civil Judge (S.D.), Kishangarh, District Ajmer as upheld by the first appellate Court i.e. the Additional District & Sessions Judge (F.T.) No. 3, Ajmer Camp, Kishangarh, under its judgment and decree dated 13.10.2010. The facts of the case are that the plaintiff -respondent (hereinafter 'the plaintiff) filed a suit for eviction before the Civil Judge (S.D.), Kishangarh, District Ajmer seeking eviction of the defendant -appellant (hereinafter 'the defendant') from the suit property consisting of six rooms on the ground floor and five rooms on the first floor with a kitchen, bathroom & latrine situate in Tulsi Marg, Oswali Mohalla, Madanganj, Kishangarh, District Ajmer. Stating himself to be the landlord, the plaintiff averred that the tenancy of the defendant had been terminated under a notice sent on 10.12.2004 with reference to Section 106 of the Transfer of Property Act, 1882 (hereinafter 'the Act of 1882'). The registered AD of the said notice was received back on 23.12.2004. Consequently the tenancy stood terminated in accordance with the notice. Yet the defendant had not vacated the tenanted premises and continued to occupy it as a trespasser. It was stated that consequently, the eviction suit had to be filed and a decree of eviction against the defendant be passed. Arrears of rent for over five years were stated to be outstanding but a claim only for 36 months prior to the filing of the suit was made @ Rs. 644/ - p.m. in view of the limitation Act, 1963. A decree was also sought on this count.

(2.) ON service of notice in the suit, the defendant filed a written statement of denial. He stated that the notice dated 10.12.2004 was contrary to the requirement of Section 106 of the Act of 1882 as it attributed to the defendant's tenancy eleven rooms, when the defendant in fact was a tenant only in respect of one room and a kitchen with latrine and bathroom. The other rooms in the suit property were stated to be independently in possession of the other children of Banshi Lal, the defendant's father who was stated to be the actual erstwhile tenant. It was also stated that the rental of the premises was not Rs. 644/ - p.m., but only Rs. 125/ - p.m. and the defendant was ready and willing to pay the agreed rent both due and future for the tenanted premises.

(3.) ON the second appeal under Section 100 CPC coming up before this Court on 09.12.2011, this Court had admitted the appeal and framed the following questions of law: