SHYAM MAHATMA Vs. BABU KHAN

JUDGEMENT

(1.) THIS second appeal has been filed by defendant -tenant under Section 100 CPC being aggrieved by the judgment and decree of eviction passed by the first appellate court on 4/7/2008 while allowing the appeal No. 79/2005 of plaintiff landlord as the learned trial court had dismissed the suit filed by plaintiff landlord seeking eviction on 4/2/2005.

(2.) THE plaintiff respondent sought the eviction of the suit shop on the ground of default in payment of rent as well as personal bonaflde need of the plaintiff for his son - Mohdv Sharif for carrying on his business of sale of cattle feed as the market has shops of such nature and defendant himself was carrying on the business of cattle feed.

(3.) THE first appellate court, however, reversed these findings and held that there was no yearly lease in favour of the defendant tenant as the yearly lease of immovable property could not be there as per Section 107 of Transfer of Property Act without such contract or such lease being registered with the competent authority. The appellate Court for the said finding relied upon the decision of Hon'ble Supreme court in the case of Samir Mukherjee v. : [2001]3SCR88 and two other judgments of Allahabad High Court and Kerala High Court respectively in para No. 10 of its judgment. The first appellate Court, therefore, held that the tenancy was on month to month basis and since the rent was not paid by the appellant defendant after 1.4.199ft upto the date when the present suit was filed on 9/4/1997, a default of more than six months had occurred and since during the pendency of suit the second default had also occurred, the defendant was not entitled to protection of first default as provided under Section 13(6) of the Act. The learned appellate Court also noticed that on 23/7/2004 the trial court had struck off the defence of defendant upon an application under Section 13(5) of the Act filed by the plaintiff landlord and said order dated 23/7/2004 was not challenged by the defendant and, therefore, the eviction decree was liable to be passed on the ground of default.