Alok Sharma, J. - (1.) THIS second appeal under Section 100 CPC has been filed against the judgment and decree dated 09.02.2009, passed by the Civil Judge (S.D.), Kishangarh, District Ajmer as upheld by the first appellate Court i.e. the Additional District & Sessions Judge (F.T.) No. 3, Ajmer Camp, Kishangarh, under its judgment and decree dated 13.10.2010. The facts of the case are that the plaintiff -respondent (hereinafter 'the plaintiff) filed a suit for eviction before the Civil Judge (S.D.), Kishangarh, District Ajmer seeking eviction of the defendant -appellant (hereinafter 'the defendant') from the suit property consisting of six rooms on the ground floor and five rooms on the first floor with a kitchen, bathroom & latrine situate in Tulsi Marg, Oswali Mohalla, Madanganj, Kishangarh, District Ajmer. Stating himself to be the landlord, the plaintiff averred that the tenancy of the defendant had been terminated under a notice sent on 10.12.2004 with reference to Section 106 of the Transfer of Property Act, 1882 (hereinafter 'the Act of 1882'). The registered AD of the said notice was received back on 23.12.2004. Consequently the tenancy stood terminated in accordance with the notice. Yet the defendant had not vacated the tenanted premises and continued to occupy it as a trespasser. It was stated that consequently, the eviction suit had to be filed and a decree of eviction against the defendant be passed. Arrears of rent for over five years were stated to be outstanding but a claim only for 36 months prior to the filing of the suit was made @ Rs. 644/ - p.m. in view of the limitation Act, 1963. A decree was also sought on this count.
(2.) ON service of notice in the suit, the defendant filed a written statement of denial. He stated that the notice dated 10.12.2004 was contrary to the requirement of Section 106 of the Act of 1882 as it attributed to the defendant's tenancy eleven rooms, when the defendant in fact was a tenant only in respect of one room and a kitchen with latrine and bathroom. The other rooms in the suit property were stated to be independently in possession of the other children of Banshi Lal, the defendant's father who was stated to be the actual erstwhile tenant. It was also stated that the rental of the premises was not Rs. 644/ - p.m., but only Rs. 125/ - p.m. and the defendant was ready and willing to pay the agreed rent both due and future for the tenanted premises. On the basis of the pleadings of the parties, the learned trial court framed four issues. On consideration of the matter, the learned trial court found that the tenancy of the defendant stood terminated in terms of the notice under Section 106 of the Act of 1882 which had been admitted to have been received by the defendant in his cross -examination. The trial court found that Ex -6 i.e. rent agreement, established the landlord -tenant relationship between the plaintiff and the defendant for the whole house, i.e. the suit property consisting of eleven rooms with latrine, bathroom and kitchen. In these circumstances, the learned trial court came to the conclusion that the tenancy having been terminated, the plaintiff was entitled to the eviction of the defendant and the possession of the suit property. On the issue of arrears of rent, the learned trial court however found that the agreed rent was only Rs. 125/ - p.m. and not Rs. 644/ - p.m. as claimed by the plaintiff and accordingly a decree for monthly rent for 36 months at the said rate prior to the filing of the suit was also passed. Aggrieved of the judgment and decree dated 09.02.2009, passed by the trial court, the inevitable first appeal under Section 96 CPC also followed. The learned first appellate court has concurred with the findings of the trial court under its judgment and decree dated 13.10.2010. Hence, this second appeal.
(3.) ON the second appeal under Section 100 CPC coming up before this Court on 09.12.2011, this Court had admitted the appeal and framed the following questions of law: (i) Whether notice under Section 106 of Transfer of Property Act is valid notice? (ii) Whether eviction suit can be decreed without impleading all the legal successors of actual tenant? (iii) Whether suit is maintainable against appellant if rented property is held to be HUF property? (iv) Whether the contradiction between Exhibit -6, Exhibit -A -1 is a material contradiction having bearing on the decree?;