- (1.) THE present second appeal filed by the appellant ­ plaintiff is directed against the judgment and decree dated 15.2.2012 of learned Additional District Judge, Sumerpur in Civil Appeal No.54/2010 ­ Moola Ram vs. Meghraj reversing the judgment and decree dated 20.11.2010 of learned Civil Judge (Jr.Division), Sumerpur in Civil Original Suit No.5/04 ­ Meghraj vs. Moola Ram for ejectment and arrears of rent in respect of suit premises ­ a shop situated at Municipality Road, Sumerpur. The suit was filed on 23.01.2004 and notice under Section 106 of the Transfer of Property Act terminating the lease was given on
(2.) 12.2003. 2. The controversy involved in the present second appeal is squarely covered by a decision of this Court in the case of Vipin Jain & anr. vs. Bhagwandas & ors. (S.B. 07th Civil First Appeal No.41/2010) decided on September, 2012, in which this Court held as under: "6. Both the learned counsels for the parties fairly agreed that the amended provisions of Section 106 of the Transfer of Property of Act, 1882, have not been noticed by the learned court below. The provision of Section 106 (Amended by the Act 3 2003 w.e.f. 31.12.2002) reads as under: - "106. Duration of certain leases in absence of written contract or local usage- (1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice. (2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice. (3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where as suit or proceedings is filed after the expiry of the period mentioned in that sub-section. (4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property." 7. As per the clear provisions under sub-Section (3) of Section 106 of the T.P. Act, 1882, after its amendment, the question of validity cannot be raised and such notice shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section (1) of Section 106 of the T.P. Act, where a suit or proceedings is filed after the expiry of the period mentioned in sub-section (1). Since, in the present case, the suit was filed on 09.07.2004, after one month of the notice dated 31.05.2004, which notice, however, same was received back on 08.06.2004 with the postal remark that 'refused to accept', the question of validity could not have been decided against the plaintiffs-appellants in the present case. In the present case also, the appellate court below has reversed the decree of learned trial court below ignoring the provisions of Section 106(3) of the Transfer of Property Act and has held that notice of one month was required to be given as per the Agreement between the parties, therefore, the decree of the appellate court cannot be sustained.
(3.) CONSEQUENTLY , on this short question alone, the present appeal of the plaintiff - landlord is liable to be allowed and the same is accordingly allowed and the impugned judgment and decree of the learned court below dated 15.02.2012 is set aside and eviction decree dated 20.11.2010 of the trial court is restored and the defendant-tenant is directed to hand over the peaceful and vacant possession of the suit premises within one year from today.;