- (1.) THE appellant-defendant, Mancha Ram S/o Taraji, has filed the present first appeal under Section 96 of the Code of Civil Procedure, 1908, against the judgment and eviction decree dated 14.02.2012 passed by learned District Judge, Sirohi in Civil Original Suit No.67/2011- Dinesh Kumar & Anr. Vs. Mancha Ram in respect of suit shop, situated in Sheoganj, where the Rent Control Law does not apply.
(2.) THE respondents-plaintiffs, gave a notice under Section 106 of the Transfer of Property Act determining and terminating the lease in respect of suit shop in question, which the plaintiffs, Dinesh Kumar and Smt. Nirmala, had purchased from Kishore Kumar S/o Gyan Chand Gandhi on 01.05.2002 under a registered sale-deed Ex.1 on record. The plaintiffs came the case that after purchase of the said property, including the residential house, which was possessed by the plaintiffs themselves and the shop was in the lease in favour of defendant- Mancha Ram by the predecessor in interest, they needed the suit shop for his own purpose and, therefore, the lease was determined. The notice Ex.2 dated 27.10.2009 was given to the defendant, Mancha Ram by the advocate of the plaintiff Mancha Ram, Mr. Ashwin Kumar Mardia, which was duly replied by the advocate of the defendant, Mr. Nagendra Kumar Mertia vide Ex.4 dated 09.11.2009. The reply Ex.4 dated 09.11.2009 sent by the defendant was responded back by the plaintiff through his advocate Mr. Ashwin Kumar Mardia vide Ex.5 dated 30.11.2009. The exhibits 6, 7, 8 9, 10, 11, 12 and 13 are the rent receipts showing payment of rent by the defendant- Mancha Ram to the plaintiff Dinesh Kumar Magan Raj, as "Karta" of HUF in respect of various periods commencing from 01.07.2003 to 31.03.2009. Vide Ex.14, the defendant sent a Cheuqe No.012791 for Rs.4,025/- in the year 2009 to the predecessor in interest, Sh. Gyan Chand Padam Raj, which was returned back by the said predecessor in interest, Sh. Gyan Chand under letter Ex.16 saying that since the property has already been sold to the present plaintiff, Dinesh Kumar and the tenant was already paying rent to him, there was no justification for sending the cheque to the predecessor-in-interest, Sh. Gyan Chand and, therefore, the said cheque was returned by registered post Ex.17 and AD receipt Ex.15. After determination of the lease since the possession was not handed over to the plaintiffs, they filed the present suit in the court of learned District Judge, Sirohi, which after recording the evidence, came to be decreed by the learned District Judge, Sirohi on 14.02.2012. Mr . Girishi Sankhala, learned counsel for the appellant- defendant-lessee, Mancha Ram, submitted that the defendant was never put to notice about the partition in the family of Gyan Chand Padam Chand, under which the title of the suit premises was vested with the seller Kishore Kumar S/o Gyan Chand, nor any notice of sale in favour of present plaintiff, Dinesh Kumar was ever given to him. He further submitted that since the Gyan Chand and the present plaintiff, Dinesh Kumar were close relatives, the rent was paid to Dinesh Kumar on behalf of Gyan Chand and, therefore, the defendant, Mancha Ram, continued to remain lessee of the said Gyan Chand. He, therefore, submitted that the lease in question could not be determined and terminated by the present plaintiff, Dinesh Kumar by serving the notice under Section 106 of the Transfer of Property Act vide Ex.2 dated 27.10.2009. Thus, he submitted that the learned court below has wrongly passed the ejectment decree against the defendant-appellant and, therefore, the present first appeal filed by the appellant deserves to be allowed. On the other hand, Mr. Sandeep Shah, learned counsel for the respondents-plaintiffs submitted that it is well settled that attornment of the lessor and landlord is automatic and since the suit property was purchased by the registered sale-deed by the present plaintiffs under Ex.1 dated 01.05.2002. The plaintiffs needing the suit shop in question for their own personal need, determined and terminated the said lease through advocate's notice Ex.2 dated 27.10.2009 under Section 106 of the Transfer of Property Act since the Rent Control & Eviction Act, 1950 or the Act of 2001 did not apply to Sheoganj, the area where the suit shop is situated. The validity of said notice was questioned by the defendant- Mancha Ram and his reply to the said notice was duly replied by the advocate of the plaintiffs under Ex.5. He also submitted that question of validity of the said notice cannot be raised in view of Section 106 (3) of the Transfer of Property Act. Refuting the contentions of the learned counsel for the appellant-defendant, he urged that the defendant- Mancha Ram had acquiesced with transfer of the property in favour of plaintiff, Dinesh Kumar by continuously paying rent since 2003 till 2009 under Ex.6 to Ex.13 rent receipts and, therefore, he cannot be permitted to go back on this question, raising the question of title in the present first appeal or even before the learned trial court. He, therefore, submitted that the learned trial court has rightly decreed the suit in favour of plaintiffs-respondents and the judgment under appeal require no interference by this Court. Having heard learned counsel for the parties, and upon perusal of the evidence on record and impugned judgment and decree of the court below, this Court is of the opinion that the present first appeal has no force and the same deserves to be dismissed. The reasons are as follows.
(3.) ADMITTEDLY , the plaintiffs purchased the suit property including the shop in question under a registered sale-deed Ex.1 dated 01.05.2002. The said sale-deed has never been questioned and could not have been questioned by the defendant-lessee. There is presumption attached to the registered sale-deed in favour of plaintiffs. The mere fact that the defendant was paying rent after the said sale itself since 2003 to till 2009 under Ex.6 to Ex.13 to the plaintiff, Dinesh Kumar, is sufficient to prove his own admission that he accepted the attornment of the suit property in favour of present plaintiffs. Suddenly sending a cheque of Rs.4,025/- in the year 2009 to the predecessor-in-title, Gyan Chand, which cheque was, however, returned back by the predecessor in interest under letter Ex.16 dated 18.11.2009 cannot enure to the benefit of the defendant- Mancha Ram, nor the contention that such payment of rent to Dinesh Kumar was for and on behalf of Gyan Chand is of any worth. The PW.2 Gyan Chand has clearly stated in his cross- examination that the suit property in question was belonging to their joint family and the suit property was never his individual or self- acquired property, which upon partition which took place in the year 1978, the said property fell in the share of Kishore Kumar S/o Gyan Chand and after such partition only, the said premises was sold by his son Kishore Kumar to the present plaintiffs-respondents, Dinesh Kumar and Smt. Nirmala. The said PW.2 Gyan Chand has also averred that he was present at the time of execution of said sale- deed and registration thereof on 01.05.2002. In these circumstances, giving of notice under Section 106 of the Transfer of Property Act by the present plaintiff, Dinesh Kumar is beyond the pale of challenge by the defendant-appellant. It is well settled that after the lease being terminated, the occupation of the suit premises by the lessee is that of a trespasser and, therefore, the learned trial court was perfectly justified in decreeing the suit for ejectment by the impugned judgment and decree. There is no force in the present appeal of the appellant-defendant and the same is hereby dismissed with cost of Rs.5,000/-. The appellant-defendant Mancha Ram S/o Taraji shall hand over the peaceful and vacant possession of the suit shop to the respondent-plaintiff within a period of six months from today and shall pay cost aforesaid and the mesne profit @ Rs.5,000/- per month commencing from September, 2012 and will further continue to pay the mesne profits each month by 15th day of the next succeeding month or in advance to the respondents-plaintiffs till the vacant possession is handed over to the plaintiffs-respondents and in case there is any default in payment of mesne profit, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The appellant-defendant shall also clear all the arrears of the rent or mesne profit within six months from today, otherwise the amount shall bear interest @ 9% p.a. and executing Court may quantify such amount and recover the same as a money decree. The defendant-appellant shall also not sub-let, assign or part with the possession of the suit shop or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and, if so created, the same would be treated as void. The appellant-defendant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over or rent or mesne profits are not paid to the respondents-plaintiffs within a period of six months from today, besides expeditious execution of the decree in normal course, the respondents-plaintiffs shall also be entitled to invoke the contempt jurisdiction of this Court. Copy of this judgment be sent to the court below and parties concerned forthwith. ;