Kailash Chandra and Others vs Rekha and Others

Prakash Tatia, J.—Heard Learned Counsel for the parties.

The brief facts of the case are that the plaintiffs-appellants filed the suit for eviction against the defendant-respondent, who expired during the pendency of this appeal on 26th Sept., 1977 for getting decree for eviction on the ground that the suit premises was let out to the defendant for which rent deed was executed on 2nd Aug., 1976 wherein it was agreed that rent of premises wills tart from 8th Nov., 1976. The defendant did not pay the rent of the premises, therefore, the landlords served a registered notice terminating the tenancy of the defendant and requested defendant to hand over the possession of the premises upon which the possession of the part of the premises was delivered to the landlords and the defendant requested that he may be given some time for vacating the rest of the portion of the rented premises. According to the plaintiffs, the defendant did not vacate the rest of the premises, therefore, the plaintiffs are entitled for the decree for eviction as well as or arrears of the rent. The trial Court framed various issues. The defendant produced three witnesses whereas no witness was examined by the defendant. The trial Court decreed the suit of the plaintiffs on 27th Jan., 1979. The said decree was challenged by the defendant by filing appeal before the Court of District Judge, Jalore. The learned District Judge, Jalore allowed the appeal of the tenant-defendant by judgment and decree dated 26th Oct., 1979. It is relevant to mention here that in appeal, the decree was challenged only on the ground of not serving a notice u/s 106 of the Transfer of Property Act and it was submitted that the plaintiffs were entitled only for the arrears of rent, but were not entitled for the future rent. The first appellate court dismissed the suit of the plaintiffs so far as it relates to the relief of possession on the ground of not serving notice u/s 106 of the Transfer of Property Act. The first appellate Court also modified the decree relating to the claim of the rent of the plaintiffs holding that the plaintiffs are entitled for rent upto the date of filing of the suit amounting to Rs.337/- only.

This Court while admitted the appeal on 26th Nov., 1979 framed following issue:-

Whether a notice u/s 106 of the Transfer of Property Act was required in view of the judgment of the trial Court that the tenancy between the appellant and respondent was tenancy at will.

Admit. Issue notice.

Learned counsel for the appellants submits that in view of the proved rent deed (Ex.1), there was no necessity of giving notice u/s 106 of the Transfer of Property Act by the landlord to the tenant. Learned counsel for the appellants relied upon the judgments of this Court delivered in the case of AIR 1974 (Raj.) 74, RLR 1999 (Raj.) 31, Uda Ram Vs. Tej Karan and Others, & Gordhan Vs. Ali Bux, which say that if there is a contract and when the term is available in the lease deed itself for termination of the tenancy, then there is no need to give notice u/s 106 of the Transfer of Property Act before filing the suit.

Learned counsel for the respondents submits that such a plea was not taken by the plaintiffs before the Courts below and therefore, cannot be relied upon this proposition particularly in view of the fact that according to the plaintiff''s themselves, they issued a notice terminating tenancy of the defendant, which impliedly means that there was no condition dispensing with the notice u/s 106 of the Transfer of Property Act.

It is relevant to mention here that the plaintiffs produced the rent deed and even defendant did not appear to rebut the allegations of the plaintiffs and the rent deed. It is not in dispute that rent deed contained the condition that whenever plaintiffs will demand possession of the property, then the tenant will hand over the vacant possession. It is not in dispute that there is a specific relinquishment of right of the tenant of benefit from the Section 106 of the Transfer of Property Act. Therefore, in view of the law laid down by this Court in the above mentioned cases, the first appellate Court committed serious illegality in allowing the appeal of the tenant-respondent and dismissing the suit of the plaintiffs. The first appellate Court also committed illegality in denying the relief of the future rent without there being any reason for doing so.

In view of the above reasons and as the controversy is covered by the judgment of this Court, this appeal deserves to be allowed. Hence, allowed and the judgment and decree of the first appellate court dated 26th Oct., 1979 is set aside and the decree passed by the trial Court is restored.