MAHENDRA BHUSHAN, J. - (1.) THIS is a Civil Second appeal by the plaintiff in an eviction suit, which was decreed by the learned trial court, but the first appeal of the defendant respondents, legal representatives of the original tenant Lalita Prasad was allowed and the suit was dismissed.
(2.) THE suit property, which is described in para 8 of the plaint and is part of house bearing Municipal No. 762, described in para 3 of the plaint, is situated in Rasta Dariba-Pan, Chowkri Ramchandraji. One Kishanlal Pandya son of Ganeshlal Pandya was the owner of the house described in para 3 of the plaint. Under a registered will dated i 1. 9. 42, the said Kishanlal Pandya beque-sthed the entire rental income of the house for the worship of Mandir Shri Vijay Ramji Pandya situated at Jaipur (hereinafter referred to as the Mandir), and directed his adopted son Prabhulal to recover the income and to spend it over the worship of the aforesaid 'mandir' and one temple situated at Govind- garh. It was also directed under the Will (Ex. 13) that the rental income from the house was also to be utilised in doing necessary maintenance of the house. THE appellant Panchayat Shri Digambar Jain Mandir Parshwanathji (soniyan), Jaipur (hereinafter referred to as the Panchayat Jain Mandir) is a registered society under the Rajasthan Society Registration Act. Prabhulal adopted son of Kishanlal and other managers of the 'mandir' gave the management of the 'mandir' to Panchayat Digambar Jain' under their letter dated May 22, 1957, and the 'panchayat Digambar Jain' in its meeting dt. 28. 7. 57 accepted the same. THEreafter, under a registered gift deed dated 21. 3. 59 (Ex. 3) Prabhulal adopted son of Kishanlal Pandya gave the suit house to the Mandir and the gift was accepted by the Secretary of 'panchayat Digambar Jain' under whom the administration of the 'mandir' had already vested. 'panchayat Digambar Jain' filed a suit for eviction against Lalita Prasad, the original tenant, interalia on the grounds that the suit house was required reasonably and bona fide by it for running a school 'gyan Bal Niketan Sanstha (in short Bal Niketan), that the tenant has committed defaults in paying the rent. The suit was contested by Lalita Prasad, who, in the written statement, raised various pleas including a plea that Prabhulal was not the adopted son of Kishanlal and that he had no right to transfer in any manner the property vesting in the 'mandir'; that the suit house was not reasonably and bona fide required to run 'bal Niketan'; that he had spent a sum of Rs. 87/- over the repairs of the suit house with the permission of the landlord. The learned trial court on the pleadings of the parties framed as many as 5 issues and after trial decreed the suit for eviction. Lalita Prasad filed an appeal in the court of the learned District Judge, Jaipur City, and the appeal was later on transferred to the Court of Senior Civil Judge, (1), Jaipur City, who, under his judgment and decree dated 31. 7. 68, allowed the appeal only on the ground that the notice terminating the tenancy of Lalita Prasad was invalid. It may be stated here that during the pendency of the appeal before the learned Senior Civil Judge, Jaipur City, Lalita Prasad died, and his legal representatives, the respondents, were brought on record. 'panchayat Digambar Jain' filed a second appeal in this court and during the pendency of the appeal the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the Act) amended by Ordinance No. 26 of 1975 came into force with effect from 29. 9 75, and was later on replaced by an Act. As the suit was based on default, and an application under section 13- A of the Act for determination of the arrears of rent etc. within 90 days of the coming into force of the Ordinance had been filed, and because the suit was also based on reasonable and bona fide necessity, in view of the provisions of section 14 (2) of the Act, this court vide its order dated April 1, 1976 framed an additional issue on the comparative hardships of the plaintiff and the respondent, and remitted the issue to the trial court under order 41, rule 25, C. P. C. for trial, and to return the evidence alongwith its finding to this court within a period of three months. This court also sent the application under section 13- A of the Act as it stood after the amendment by the Ordinance to the trial court for determining the arrears of rent in accordance with law and pass suitable orders. The trial court determined the arrears of rent, and after recording the evidence of the parties on the additional issue vide its order dated 8. 12. 76 recorded a finding in favour of the 'panchayat Digambar Jain' appellant to the effect that in case a decree for eviction is not passed, greater hardship would be caused to the 'panchayat Digambar-Jain' (Plaintiff) than to the tenants. A look at the judgment of the first appellate court will show that only two points on behalf of the respondent tenants had been agitated before it, namely, (1) that the notice was invalid in as much as it did not expire with the month of tenancy; (2) that the transfer by Prabhulal by way of gift was not valid and, therefore, the plaintiff had no right to file the suit. So far as the second point is concerned, the learned first appellate court held that the question of title cannot be decided in case of tenancy, and because it has been proved that the original landlord Prabhulal has transferred his right as landlord to the plaintiff, and the defendant was informed of the transfer, it is sufficient to create a relationship of landlord and tenant between the parties. Taking up the first point, it was held by the first appellate court that March 21, 1959 alleged to be the date of tenancy cannot be deemed to be the date of tenancy and in the absence of any other date, first of every month will be considered as the date of commencing of the tenancy. The notice given by the landlord, which expired on 21st of the month, which was the date of transfer, was invalid.
(3.) BECAUSE the finding of the learned trial court that the suit premises are reasonably and bona fide required by Panchayat Digambar Jain9 for running its school 'bal Niketan' was not challenged before the first appellate court, and, therefore, this finding of fact has become final. That apart,'bal Niketan' is being run in the premises of 'digambar Jain Mandir", and looking to the number of students, which has been increasing from year to year, those premises are not sufficient for the school Bal Niketan', and, therefore, the finding of fact that the suit premises are reasonably and bona fide required for 'bal Niketan' cannot be disturbed in the second appeal. It is a requirement of law under section 14 (2) of the Act that notwithstanding the finding of fact that the suit premises are reasonably and bona fide required by the landlord, the court can only decree a suit for eviction, if it is satisfied whether having regard to all the circumstances of the case including the question whether any other reasonable accommodation is available to the landlord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it. As stated earlier, this court had framed an additional issue and had remitted it for trial to the first appellate court. The first appellate court has recorded a finding in favour of 'panchayat Digambar Jain'. The lower appellate court had itself inspected the premises of 'digambar Jain Mandir' where presently 'bat Niketan school is being run. It has observed that there is only a 'baradari' which is in the shape of a hall and the others are verandahs. The accommodation is so short for the school that some classes have to be held in the open on the roofs. It has also observed that 'panchayat Digambar Jain' now wants to run the school in a separate building than as presently. Therefore taking into consideration the material, which has been brought on record before the lower appellate court, I am of the opinion that the finding of the lower appellate court that greater hardship shall be caused to 'panchayat Digambar Jain' in case a decree for eviction is not passed than to the respondents does not call for any interference. So far as the finding of the lower appellate court that the notice of eviction is invalid, it may be observed that this point now stands settled by a reported decision of their Lordships of the Supreme Court in V. Dhannapal Chettiar V. Yesodai Ammal (1 ). It has been held by their Lordships that no notice under section 106 of the Transfer of Property Act determining the tenancy is necessary in case of suits for eviction under the various State Rent Control Acts. It has been contended by the learned Advocate for the respondents that the provisions of the Act are supplementary to the provisions of the Transfer of Property Act, and, therefore, so far as the Act is concerned, before a decree for eviction is passed on any of the grounds mentioned in section 13 (1) of the Act, a notice determining the tenancy under section 106 of the Transfer of Property Act is necessary. The contention of the learned Advocate is that their Lordships in Chettiar's case (Supra) were to called upon to consider section 28 of the Act, which clearly provides that the provisions of the Act shall be in addition to and not derogatory of any other law on the subject for the time being in force in the whole or in part of Rajasthan According to the learned Advocate, because the aforesaid section of the Act as provides the applicability of the provisions? of the Transfer of Property Act, it can be said that by necessary implication a notice under section 106 of the Transfer of Property Act determining the tenancy is necessary before a suit for eviction based on any of the grounds under section 13 (1) of the Act can be decreed. But, to my mind, in Chettiar's case (supra) their Lordships have intended to lay down and have laid down the law concerning eviction in all states under the various Rent Acts. The following observations of their Lordships lend support to this view:- " Such a clivage of opinion cropped up in the various High Courts because of some observations of this court in some decisions, which erroneous assumption, if we may say so with great respect that the difference in the phraseology of the different State Rent Acts justifies this difference of view. In out considered judgment on the question of requirement of notice under section 106 of the Transfer of Property Act there is no scope for taking different views on the basis of the difference in the phraseology of the various Rent Acts. In this regard, bring about any distinction. In all the States, the law should be uniform, Vi. , that either a notice is necessary or it is not. It was high time, therefore, that this larger Bench was constituted to lay down a uniform law for governance of the whole country and to permit the unjustified different trend of decisions to continue. " Their Lordships also considered Shambhu Ram V. Mangal Singh (2), wherein this court had taken a view that a notice under section 106 of the Transfer of Property Act was necessary. Therefore, to my mind, the observations of their Lordships of the Supreme court in Chettiar's case (supra), extracted above, leave no manner of doubt that their Lordships intended to lay down the law also so far as the eviction cases under the Act are concerned, and in suits for eviction on any of the grounds under section 13 (1) of the Act, to my mind, it is not necessary to determine the tenancy by giving a notice under section 106 (1) the Transfer of Property Act. I will like to add that even if valid notice under section 106 of the Transfer of Property Act is given, the suit still cannot be decreed unless a ground for eviction is set out under the various clauses of sub-section (1) of section 13 of the Act is made out. Their Lordships have observed in the aforesaid Chettiar's case that the giving of notice is mere surplusage. I am, therefore, of the opinion that the view of the learned lower appellate court that the notice was not valid cannot be upheld. Under the law, no notice under section 106 of the Transfer of Property Act was necessary in case of an eviction suit based on the grounds mentioned in various clauses of section 13 (1) of the Act. I may make a reference to Sarjun Singh V. Ramchandra Kothari (S. B. Civil Second Appeal No. 278/80) decided by me on October 30, 1980. ;