MAHAVIR JAIN Vs. DARGAH COMMITTEE

JUDGEMENT

(1.) THIS is defendant's second appeal against judgment and decree dated 18.10.2006 passed by learned Additional District Judge No. 2, Ajmer, whereby the judgment and decree passed by learned Civil Judge (Junior Division) South, Ajmer, was upheld. The learned court below decreed the suit for eviction filed by the plaintiff -respondent against the defendant -appellant. Plaintiff -respondent filed a suit asserting that shop in question was let out to defendant on rent at the rate of Rs. 275/ - per month. The rent was to be paid on 1st of every month. The tenancy commenced from 1st of every month. The rent -note dated 21.08.1992 was executed for eleven month. Even after expiry of that period, the defendant remained in possession of the suit premises as tenant, but he was habitual in making default in payment of rent. A total of Rs. 6600/ - became due towards rent. The plaintiff served a notice under Section 106 of the Transfer of Properties Act, 1882, on the defendant on 17.09.2001 and determined the tenancy, therefore, it was prayed that the decree of eviction may be passed.

(2.) THE defendant contested the suit and filed written statement. Though he admitted his status as that of a tenant of the plaintiff but denied execution of rent -note. It was averred that father of the defendant was in possession of one shop and on 'nohra' even prior to 1980 as tenant. That shop was in tenancy of his brother. The defendant has asserted that he sent the rent by money order till January, 2002. He sent cheque of rent also but the plaintiff did not deliberately accept the payment by cheque. The plaintiff themselves were responsible for the delay. The learned trial court framed issues. Issue No. 1 was whether the plaintiff is a cooperative society, which has been constituted under the Dargah Khwaja Saheb Act, 1955 and the disputed property is exempt under the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short, 'the Act of 1950'). Issue No. 2 was whether the plaintiff has terminated the tenancy vide notice dated 17.09.2001 in accordance with the law. Issue No. 3 was whether the roof is included in the disputed premises. Issue No. 4 was whether the suit is liable to be dismissed as the plaintiff is not liable to any relief except the relief mentioned in para No. 8 of the written statement. Issue No. 5 was as to what is the effect of the rent -note executed between both the parties dated 21.08.1992, on the suit. Issue No. 6 is about the relief.

(3.) LEARNED counsel for appellant has argued that these documents are very important because the appellant has paid the rent of Rs. 6050/ - by aforesaid Cheque, which was for the period from 01.12.1999 to 30.09.2001 and sent the same by registered post on 14.09.2001. The notice for determination of tenancy was therefore based on unfolded premises. Therefore, the documents be considered and the suit be dismissed. It was argued that both the courts below have erred in law in deciding the issue No. 1 against the defendant -appellant that the suit property was exempt from applicability of the Act of 1950. Service of notice could not be proved only by way of obtaining a letter from the post office. They failed to appreciate that defendant was in possession of the disputed premises and therefore the said clause would not apply for tenancy which started prior to Dargah Khwaja Saheb Act, 1955 was enforced. The plaintiff failed to produce AD receipt and therefore the finding recorded by the learned trial court that the notice under Section 106 of the Act was served upon the defendant, was wholly perverse. The rent was in fact paid to the plaintiff. If deliberately they did not get the Cheque encashed, it cannot be said that the defendant was at fault. The postman was not examined to prove the receipt and no permission was sought to lead secondary evidence.