G.R. Majithia, J. - (1.) THE unsuccessful Defendant has come up in second appeal against the judgment and decree of the first appellate Court affirming on appeal those of the trial Judge whereby the suit of the Plaintiff for possession by ejectment of the Defendant was decreed.
(2.) FACTS first: Dm Dayal was the original owner of the shop in dispute, He leased out the same to the Defendant on monthly rent of Rs. 250. He sold the same to his real brother Chattar Pal (Plaintiff) by sale deed dated 24th November, 1977. The Defendant became a tenant under the Plaintiff by operation of law. The Plaintiff served a notice on the Defendant under Section 106 of the Transfer of Property Act (for short the Act) calling upon him to vacate the demised premises' ted also clear the arrears of rent. On his failure to do so the instant suit giving rise to this appeal was filed. The Defendant admitted that he was inducted as a tenant in shop by the original owner Din Dayal. A rent deed dated 24th September 1977 was executed under which the Defendant was allowed to remain in possession of the demised premises for 20 years commencing from 1st March, 1978. It was further pleaded that the Defendant entered into possession pursuant to the rent note and was entitled to protection of Section 53 -A. of the Act and he could not be evicted before expiry of 20 years.
(3.) THE trial Judge framed the following issues arising out of the pleadings of the parties: 1. Whether the Plaintiff is the owner of the shop in dispute?; OPP. 1 -A. Whether the demised premises were taken on rent by the Defendant from Din Dayal the previous owner of the same through a rent note dated 29th September, 1977 and if so to what effect ? OPD. (Framed subsequently). 2. Whether a notice under Section 106 of the Transfer of Property Act was served upon the Defendant? OPP. 3. Whether the sale deed dated 24th November, 1977 was obtained by fraud etc. as alleged by the Defendant ? OPD 4. Whether the suit is not maintainable in the present form as alleged in the additional plea No. 2 and preliminary; objection No. 2 of the written statement? OPD.;