- (1.) HEARD learned counsel for the parties.
(2.) THE defendant-tenant has challenged the decree of eviction granted by the two courts below in respect of a shop situated at Opposite Bhattad Market, Station Road, Tehsil- Phalodi, District Jodhpur. The shop in question was purchased by the plaintiffs- respondents, namely, Shri Gopal S/o Paramsukh and Smt. Bhagwati W/o Shri Gopal from the predecessor in title, Smt. Indra Devi, by a registered sale-deed dated 05.09.1998; and by the notice (Exhibit-4) dated 30.09.2004 sent by registered post by the plaintiffs to defendant- Rawal Chand S/o Keshuji, lease was determined by the plaintiffs and tenant was asked to handover the possession of the shop in question on 31.10.2004. In the said notice, the plaintiffs not only claimed arrear of rent of Rs.17000 and odd after the date of purchase 05.09.1998 till the date of notice, but it was also stated that the shop in question was required for the needs of the plaintiffs- landlord. The said notice was duly replied by the lessee (defendant- appellant) demanding the proof of purchase by the plaintiffs, however, no rent for the said period, as claimed, was paid by the tenant-defendant. The learned trial court after hearing the parties, vide the judgment and decree 05.07.2008 in Civil Suit No.23/05- Shri Gopal and Smt. Bhagwati Vs. Rawal Chand, decreed the suit for eviction and also asked the defendant-tenant to deposit of sum of Rs.17,100/- as due rent for the aforesaid period to the plaintiffs. Being aggrieved by the said decree of eviction passed by the learned trial court, the defendant-tenant approached the first lower appellate court by way of filing appeal being Civil Appeal No.2/2008- Rawal Chand Vs. Shri Gopal & Anr., which too came to be dismissed on 29.10.2009 and decree of the eviction was confirmed by the first appellate court. Being aggrieved by the concurrent judgments and decrees passed by the courts below, the defendant is before this Court in the present second appeal under Section 100 of CPC. Learned counsel for the appellant-defendant, Mr. Ashok Chhangani, vehemently submitted that no notice prior to Exhibit-4 notice dated 30.09.2004 was ever received by the defendant and in the absence of any notice, he could not be expected to deposit the rent with the plaintiffs-respondents and the tenant had only paid rent of the aforesaid period to the predecessor in title, Smt. Indra Devi, who was never produced before the court below in support of averments made in the plaint that rent up to 30.04.2009 was not paid by the defendant-tenant. He further submitted that the alleged notice given by Smt. Indra Devi to the defendant-tenant, allegedly sent by UPC (Under Postal Certificate), which notice, however, was never actually received by him and, therefore, no presumption of service could be drawn against the defendant. In support of above contention, he relied upon a MP High Court decision in the case of B. L. Shrivastava Vs. M.M.L. Shridhar & Ors. reported in AIR 1975 Madhya Pradesh 21, and submitted that the learned courts below have erred in passing the decree of eviction on this ground and, particularly, on the ground of default in payment of rent to the present plaintiffs and, hence, substantial question of law arises in the present second appeal. He also submitted that in view of payment of rent, the lessee was entitled to protection under Section 114 of the Transfer of Property Act, 1882, (for short, hereinafter referred to as 'Act of 1882').
(3.) ON the other hand, Mr. R.K. Thanvi, Sr. Advocate assisted by Mr. Narendra Thanvi, learned counsel for the plaintiffs- respondents urged that lease was determined under Section 106 of the Act of 1882 by serving a notice dated 30.09.2004 (Exhibit-4) and Section 114 of the Act of 1882 is not attracted in the present case because there was no evidence on record to show the payment of arrear of rent of the shop to the plaintiffs. Therefore, relief against the forfeiture of rent as envisaged under Section 114 of the Act of 1882 cannot be given to the defendant-tenant. He also urged that lease is determined by the notice (Exhibit-4) dated 30.09.2004, which notice was admittedly received by the defendant as is evident from his own reply dated 21.10.2004 to the same vide Exhibit- 1/A, therefore, the capacity of the defendant-tenant becomes that of a trespasser and he is not entitled to retain the possession of the suit shop. He further submits that attornment of landlord is automatic and that apart the registered sale-deed was also produced before the trial court as Exhibit-1 and consequently, in the absence of denial of title by the defendant-tenant and valid notice having been served upon him vide Exhibit-4 dated 30.09.2004, the decree of eviction is perfectly justified and since the same is not under Rent Control Act, 1950, the grounds of default or need of the landlord, are not relevant in the present case. He further submitted that issues No.1 and 2 in this regard have rightly been determined by the courts below in favour of respondents-plaintiffs and no substantial question of law arises in the present second appeal of the defendant. Having heard learned counsel for the parties at length and upon perusal of impugned judgments and decrees of the courts below, this Court is satisfied that no substantial questions of law arise in the present second appeal. The determination of the lease in accordance of provisions of Section 106 of the Act of 1882 by notice is sufficient to result into a decree of eviction and the defence possible for the defendant is only that proper notice has not been served upon him for determination of such lease. The ground of eviction specified in the Rent Control Act, 1950 or even the new enactment of 2001 Act, are not at all relevant for the cases filed for eviction under the provisions of Transfer of Property Act, 1882. The relief against the forfeiture of non-payment of rent provided under Section 114 of the Act of 1882 is possible only if the entire arrear of rent is tendered to the lessor together with interest thereon and on full cost of suits or the defendant furnishes such security, as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred. However, in the present case, the issue with regard to title and serving of notice for determination of lease are duly proved by the plaintiffs and concurrently accepted by the two courts below. These findings are not perverse in any manner so as to give rise to any substantial question of law. The alleged payment of rent made by the defendant-tenant to the previous owner, who however refused to accept the same, having not impleaded in the present suit or not produced as a witness by the plaintiffs in the present suit, is of little avail and consequence, as far as the ejectment decree in the present is concerned. The decree of eviction/ejectment under the provisions of Act of 1882 solely depends upon the title and proper service of the notice determining the lease, which admittedly has been proved in the present case. Consequently, the present second appeal of the defendant is found to be devoid of any merit and the same is hereby dismissed. No costs. ;