LAXMI NARAIN Vs. SMT. SARASWATI DEVI MANTRI

JUDGEMENT

(1.) THIS is defendant's second appeal directed against judgment and decree dated 11.02.2013 of learned Additional District Judge No. 2, Ajmer, whereby judgment and decree dated 16.09.2008 of learned Civil Judge (Senior Division), Ajmer, decreeing the suit of the plaintiff for eviction and arrears of rent, has been affirmed. Plaintiff -respondent filed a suit for possession, injunction and recovery of arrears of rent/mesne profits against defendant -appellant stating therein that defendant -appellant is tenant in his north facing shop on the ground floor of the property situated at House No. 183/1 in Chhoti Basti, near Barah Ghat, Pushkar, on monthly rent of Rs. 300/ -. The disputed property was purchased by plaintiff -respondent through registered sale deed on 10.07.2003 from one Ravi Kumar. Plaintiff served a notice on the defendant to vacate the shop. Defendant after receiving the notice declared himself as owner of the suit premise and sent a reply to the notice to plaintiff on 18.09.2000. It was alleged that the defendant started damaging the suit premise and had also broken the roof stones. There is an apprehension of alienation of the disputed premise by the defendant. A sum of Rs. 26,600/ - was claimed as mesne profit, damages and legal fee for the Advocate. In the plaint, prayer was made that the defendant be restrained by decree of injunction and the vacant possession of the disputed premises be handed over to the plaintiff.

(2.) DEFENDANT -appellant contested the suit by filing written statement. It was pleaded that Beni Gopal, elder brother of defendant, was tenant of Swaroop Narain Agarwal and the tenancy of the disputed premises commenced from Hindi calendar month instead of 1st of each English calendar month. Prior to Beni Gopal, his father Gordhan Ji was the tenant in the disputed premise. Beni Gopal merely used to assist Gordhan Ji. In the written statement it was pleaded that tenancy does not commence on the 1st of Hindi calendar month. In fact, it is as per the Hindi calendar. Beni Gopal, elder brother of defendant, was the original tenant in the shop in dispute. Gordhan Ji, father of defendant, was tenant prior to him. Defendant Laxmi Narain started sitting in the shop with his father Gordhan Ji and also with his brother Beni Gopal to assist them. Plaintiff purchased the shop from its erstwhile owner, whereas the defendant was in possession of disputed shop for last more than 12 years, without making payment of any rent, thus he acquired title by way of adverse possession. It was denied that plaintiff has acquired the right by alleged sale -deed. As regards the notice under Section 106 of the Transfer of Property Act, 1882, dated 15.07.2003, it is contended that the said notice was in fact issued to defendant -appellant on 26.08.2003, hence the defendant replied to the aforesaid notice on 18.09.2003 through his counsel. In the additional pleas, it was stated that late Gordhan Ji was tenant in the suit premise and thereafter Shri Beni Gopal became tenant of the suit premise. Defendant -appellant used to work with Shri Gordhan Ji, during his lifetime. The last rent of the premise was paid to late Swaroop Narain on 11.12.1974 and thereafter no rent was paid to any person.

(3.) SHRI R.K. Agarwal, learned Senior Advocate, opposed the appeal and submitted that the suit premise is situated at Pushkar, where the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 is not applicable. Once the defendant had served the notice under Section 106 of the Transfer of Property Act, his status as tenant comes to an end. In alternative pleas, it was stated that fact of adverse possession has not been proved by any evidence. There is concurrent finding by both the courts on all the issues. The appeal does not raise any substantial question of law therefore it is prayed that the same be dismissed.