- (1.) THIS appeal has been filed against the judgment and decree dated 30-11-1989 passed by Sri S. K. Mishra the then District Judge, Pauri Garhwal in Civil Appeal No. 11/1988 dismissing the appeal arising out of judgment and decree dated 25-9-1988 passed by Sri D. P Garola in Civil Suit No. 1/1986 decreeing the suit of the plaintiff.
(2.) BRIEF facts of the case are that the plaintiff/respondent filed a suit for possession and ejectment of the appel lants/defendant from the disputed shop on the ground that premises were given to one-Pratap Singh (defendant) on rent @ Rs. 300/- per month for the fixed period of five years w. e. f. 01-07-1980 by virtue of a lease deed dated 01-07-1980. The electric and water charges had to be paid by the tenant in addition to the rent. After taking the shop on rent, Pratap Singh joined the services in GRIEF (B. R. O.) and sub-let the said shop to Dinesh Chandra Khanna. But, after expiry of the lease deed of five years Pratap Singh did not vacate the shop. Thereafter, the plain tiff/respondent filed a suit against Pratap Singh. Pratap Singh died during the pendency of the suit. The suit was contested by the legal representatives of Pratap Singh and it was alleged in the written statement that it was not agreed in the agreement deed that if the de fendant No. 1 - Pratap Singh would be re-employed, he would have to vacate the shop. It was further pleaded that defendant No. 1 Pratap Singh was never re-employed and due to his illness he had obtained the services of defendant No. 2-Dinesh Chandra Khanna and he was employed as a manager to look after the said shop. Pratap Singh did not sub-let it to Dinesh Chandra Khanna. The defendant has also pleaded that as per the agreement he used to pay the rent to the plaintiff's chaukidar and the chaukidar used to take it only after two - three months. When plaintiff refused to take the said rent, the rent was sent through money order which was also refused by the plaintiff. It was also alleged in the writ ten statement that Pratap Singh applied for extension of term of the tenancy period, but it was not extended and as such the tenancy was determined by notice. It was further pleaded that three months prior notice was not given to the defendant before vacation of shop. The learned Munsif framed the necessary issues in the said suit. After framing the issues and after apprecia tion of evidence, the suit was decreed. Feeling aggrieved by this, the defend ant/appellants preferred an appeal be fore the District Judge and the learned District Judge maintained the decree and judgment of the trial Court. Both-the courts below had held that the plaintiff/respondent adduced the evi dence of PW1-Jag Mohan Singh, who has stated before the court that the tenancy deed was executed for a period of five years. Both the courts below relied upon the evidence of the plaintiff. The trial court has further held that the defendant also sent a letter to the plain tiff on 13-6-1985 to extend the lease deed for further period of five years from the date of expiry of earlier deed. The said request of the defendant/ap pellant was rejected by the plaintiff/re spondent on 19-6-1995. Both the courts below had relied upon the said agreement in which it was admitted that the tenancy was only for a fixed period of five years. Both the courts below had also held that the agreement was executed in between the parties, which clearly reveals that the tenancy deed was executed for a period of five years. The learned trial court as well as the appellate court had also held that the said building was sub-let to Dinesh Chandra Khanna. Both the courts be low had relied upon the evidence of the plaintiff and had also relied upon the written reply of the notice sent by Dinesh Chandra Khanna in which he has stated as follows : @ HINDi The averments made in the said notice clearly reveal that the said shop was sub-let to Dinesh Chandra Khanna. The learned court below had also re lied upon the evidence of plaintiff and also found that the evidence of the de fendant/appellants is not reliable. Both the courts below had held that the ten ancy was to be determined by efflux of time. As such, the notice was not re quired. Both the courts below had given a concurrent finding and this Court cannot enter into the re-appre ciation of evidence at this stage.
(3.) IN view of the concurrent find ings, the following questions of substan tial law were framed by this Court. First substantial question :- "1. Whether on the present facts and circumstances of the case the suit of the plaintiff/respondent is legally maintainable in the absence of ter mination of the tenancy of the de fendants in accordance with the agreement after serving three months prior notice. " It was contended on behalf of the appellant that the learned trial court failed to appreciate the fact that no no tice for termination of the tenancy had been given to the defendant/appellants. It was further contended that according to the conditions of the lease deed, the defendant/appellants would have to be terminated after serving three months' prior notice. But, in fact the notice of termination of the tenancy was not ever served upon the defendant/tenant and as such the court below has committed manifest illegality and material irregu larity while holding that no notice is re quired. The learned counsel for the re spondent contended that the present suit had been filed after the expiry of five years and there was an agreement between the parties that the defendant would vacate the premises after a fixed period of five years i. e. 01-07-1985. The tenancy was determined due to ef flux of time under section 111 of the Transfer of Property Act and there was no need to serve or to give any notice to the defendant. It was pointed out by the learned counsel for the plaintiff/re spondent that when the tenancy is for a fixed period the notice is not re quired. It is equally clear as provided by section 111 of the Transfer of Prop erty Act that the lease of immovable property determines by various modes therein prescribed. The lease of immov able property determines by efflux of time. The agreement arrived at be tween the parties only indicates that if the parties determine the lease during the subsistence of the said agreement, they will give a notice of three months to the other party. After the expiry of the agreement, it was the duty of the defendant/appellants to vacate the premises and comply with the condi tions of the agreement arrived in be tween the parties. In view of the above, there was no need to give three months' prior notice. Second Substantial Question :- "2. Whether on the facts and circum stances of the case the judgment and decree passed by the courts below is legally justified when no notice of demand and notice termi nating the tenancy under section 106/111 of the Transfer of Property Act was not served on the defend ant/appellant. ";