- (1.) THE present second appeal of the defendant-appellant Mohan Lal S/o Lakmi Chand Seth, is directed against the concurrent decree of two courts below directing his eviction from the suit shop in question, situated at Vallabh Nagar, District Udaipur, which initially was let-out to the defendant-tenant on 28.02.1976 at a monthly rent of Rs.50/-.
(2.) THE learned trial court of Civil Judge, Vallabh Nagar, District Udaipur decreed the eviction suit vide the judgment and decree dated 31.03.1994 decreeing the plaintiff's Civil Suit No.189/1986-Nana Lal Vs. Mohan Lal. THE appellant-defendant's first appeal being Civil Appeal No.2/1994- Nana Lal Vs. Mohan Lal came to be dismissed by the learned lower appellate court of Additional District Judge, No.2, Udaipur vide the judgment and decree dated 11.02.1999. The present second appeal was filed by the appellant- defendant-tenant in this Court on 07.04.1999 and a coordinate bench of this Court while admitting the present second appeal vide order dated 02.08.1999 framed following substantial question of law and in the meanwhile the execution of the decree under appeal and dispossession of the defendant-tenant was stayed. "Whether notice Ex.3 and Ex.4 purported to have been given under Sec. 106 of the Transfer of Property Act by the plaintiff-respondent are not valid notices within the meaning of the aforesaid section, therefore, both the courts below have committed a substantial error of law in passing the decree under appeal." Briefly stated, the facts of the case are that the plaintiff- respondent Nana Lal S/o Kesrimal Chordia (now represented by his legal representatives) filed suit seeking permanent and mandatory injunction and, so also, eviction of the defendant-tenant from the suit shop on the ground of default in payment of rent. Initially, the suit shop was given on rent to the appellant-defendant on 28.02.1976 at a monthly rent of Rs.50/-. In the plaint, it was averred by the plaintiff- respondent that the defendant had also made certain encroachment on the Government land, adjacent to the suit shop in question, therefore, same also asked to be removed by a decree of permanent and mandatory injunction. The plaintiff-respondent, Nana Lal served a notice under Section 106 of the Transfer of Property Act, 1882 (for short, hereinafter referred to as 'Act of 1882') vide Ex.4 dated 02.12.1985 terminating the tenancy/lease, which notice was received by the defendant-tenant on 07.12.1985. In the notice Ex.4 dated 02.12.1985, the plaintiff-landlord averred that rent from 01.02.1976 to 31.10.1985 (117 months) comes to the tune of Rs.5,580/- and the defendant-tenant has paid only Rs.4,700/-, therefore, from 01.02.1976, a sum of Rs.1,300/- towards the rent, has not been paid by the defendant-tenant. The plaintiff-respondent thereafter again served a second notice Ex.3 dated 06.01.1986 after about 26 days of the previous notice asking the defendant to remove the encroachment made by him on the Government land, adjacent to the suit shop, however, in that notice Ex.3, there was clear mention of earlier notice Ex.4 dated 02.12.1985 terminating the lease of the defendant. Thereafter, by filing the present suit on 18.02.1986 the plaintiff, Nanalal, sought eviction of the defendant, Mohan Lal from the suit shop and, so also, also sought direction against the defendant to remove the encroachment made by him. The learned trial court although decreed the suit for eviction, however, refused to grant the injunction as prayed for by the plaintiff-respondent vide its decree dated 31.03.1994. Mr. Sajjan Singh, learned counsel for the appellant- defendant, Mohan Lal raised the contention that initial notice given u/s 106 of the Act of 1882 terminating the tenancy/lease vide notice Ex.4 dated 02.12.1985 (The Exhibit number is 4 but date of notice prior than Ex.3) which the defendant received on 07.12.1985 which was followed by another second notice Ex.3 dated 06.01.1986 asking him (defendant) to remove the encroachment made by him on some Government land. He further submitted that since in the subsequent notice, there was no stipulation of terminating the lease, the first notice u/s 106 of the Act of 1882 stood waived by the plaintiff-landlord and first notice stood merged in the second notice. He, therefore, submitted that there was no termination of the lease in the present case by the second notice Ex.3 dated 06.01.1986, the courts below have grossly erred in decreeing the eviction suit and consequently, the substantial question of law framed as above, deserves to be answered in favour of defendant-appellant. On the other hand, Mr. Deelip Kawadia, learned counsel for the plaintiff-respondent, Nana Lal (now represented by his legal representatives) relying upon a decision of M.P. High Court in the case of Pannalal Biraji Vs. Kalyanmal Nainchand & Ors. reported in AIR 1961 MP 232 submitted that a bare perusal of these two notices, viz. first notice Ex.4 dated 02.12.1985 and second notice Ex.3 dated 06.01.1986 would reveal that while the lease in question was terminated by serving the first notice u/s 106 of the Act of 1882 as the defendant-tenant failed to make payment of monthly rent for a long period from 01.02.1976 till 01.11.1985 for 117 months, which came to Rs.5580/- against which, the defendant had paid only Rs.4700/- and thus the balance amount of Rs.1300/- was not paid by the defendant-tenant despite demand, therefore, the landlord terminated the said lease vide clause 5 of the said first notice giving fifteen days notice to lessee/tenant. In clause (5) of the notice Ex.4 dated 02.12.1985, it was clearly stipulated that the tenancy will be treated as terminated from 28.12.1985 if the tenant treats the monthly tenancy from month to month and such month commenced from 28th day of the month since originally the tenancy was commenced on 28.02.1976, otherwise the tenancy shall stand terminated on 31.01.1986 and the vacant possession of the suit shop may be handed over to the plaintiff otherwise, the landlord-lessor will have to file suit for eviction.
(3.) SO far as second notice Ex.3 dated 06.01.1986 is concerned, the learned counsel for the plaintiff-respondents, Mr. Deelip Kawadia, submitted that a perusal of the second notice Ex.3 abundantly makes it clear that since the defendant, Mohan Lal had encroached on the part of public land, adjacent to the disputed suit shop in question, therefore, the plaintiff, Nanalal notified the defendant by this second notice that in case he does not remove the encroachment from the public land, for which a decree was also granted in another suit being Civil Suit No.91/79 filed by one Khuman Singh S/o Anoop Singh, and which was decreed in favour of plaintiffs treating the said portion of land as a public land, the said encroachment may also be removed by the defendant-tenant otherwise, a mandatory injunction would also be sought in the same suit, if it is required to be filed. Mr. Deelip Kawadia, learned counsel for the plaintiff- respondents, therefore, submitted that there was neither any waiver of first notice Ex.4 dated 02.12.1985, nor any merger of the same with the second notice Ex.3 dated 06.01.1986. He further pointed out that since the suit for eviction was filed after about 11-12 months of the service of first notice on 07.12.1985 and the suit was filed on 18.12.1986 after about one year, the purpose of notice was achieved and with the termination of the tenancy, the status of the lessee/tenant (defendant-appellant) had become that of 'encroachee' or 'trespasser' and, therefore, the eviction decree passed by the learned trial court against the defendant, Mohan Lal and upheld by the learned lower appellate court, are not required to be interfered with in the present second appeal. He, therefore, submitted that the substantial question of law, as framed above, deserves to be answered in favour of plaintiff-respondents. Having heard learned counsel for the appellant- defendant and learned counsel for the plaintiff-respondent and upon perusal of the reasons given in the impugned judgments of both the courts below, this Court finds no merit in the present second appeal of the defendant and same deserves to be dismissed. ;