JAMANA DAS GOYAL Vs. PRAKASH CHAND BANSAL

JUDGEMENT

(1.) THIS civil misc. appeal challenges the order dated 18.12.2013, passed by the Additional District Judge, Bari, District Dholpur whereby the appellate court in an appeal under Section 96 CPC against an judgment and decree dated 15.05.2013, passed by the Civil Judge, Jr. Division, Bari in Civil Suit No. 59/2004 has set aside the judgment and decree and remanded the matter to the trial court for reconsideration and retrial.

(2.) THE brief facts of the case are that the plaintiff -appellant (hereinafter the plaintiff) filed a suit for eviction/possession and arrears of rent against the defendant -respondent (hereinafter 'the defendant') based on Section 106 of the Transfer of Property Act, 1882 (hereinafter 'the Act of 1882') - -the Rajasthan Rent Control Act, 2001 not being operative at least at the relevant time in Bari, District Dholpur. It was averred that the defendant was a tenant in the suit shop @ Rs. 50 p.m. and was in arrears for the last several months immediately prior to the filing of the suit. It was stated that the plaintiff, a Doctor earlier in the employment of Government of Rajasthan, had superannuated effective 31.01.2004 and required the suit shop of which the defendant was the tenant for his own personal use. It was stated that a legal notice as required under Section 106 of the Act of 1882 was served on the defendant terminating his tenancy effective 05.03.2004. Yet even subsequent to the termination of the tenancy, the defendant continued to unauthorisedly occupy the suit shop and was not vacating it. It was stated that the defendant had been rendered a mere trespasser in the suit shop pursuant to the termination of his tenancy under notice under Section 106 of the Act of 1882 and therefore he be evicted from suit shop and possession thereof be handed over to the plaintiff. A decree of rent for the period prior to the termination of tenancy and thereafter subsequent to termination for mesne profits was also prayed for. The defendant filed his written statement of denial. However in para 1 of the written statement the defendant admitted to the factum of his tenancy with the plaintiff as the landlord of the suit shop. It was however prayed for defences otherwise taken that the suit was liable to be dismissed.

(3.) THE trial court subsequent to the remand by the lower appellate court reconsidered the matter, conducted a retrial as directed and again passed judgment and decree dated 15.05.2013 for the plaintiff and directed the defendant to handover the peaceful possession of the suit shop to the plaintiff within a period of two months from the date of decree as also pay to the plaintiff arrears of rent @ Rs. 50/ - p.m. for the period commencing 03.08.2001 to 05.03.2004 and thereafter w.e.f. 05.03.2004 mesne profit at the same rate till the date of handing over the possession of the suit shop to the plaintiff.