Dismissed

Smt. Kamla Devi and Ors. v. Rajendra and Ors.

Rajasthan HC14 May 2018CSA/332/2017

Case brief

AI extract

What is this about?

Second appeal against a decree ordering possession of a residential house. The court rejected the appeal, holding no substantial question of law arose. It dismissed a point on the power of attorney as not raised earlier, and upheld the trial court on the validity of the notice under Section 106 Transfer of Property Act.

What did the court decide?

The second appeal involving no substantial question of law is rejected.

Smt. Kamla Devi and Ors. Vs Rajendra and Ors. — Landlord and Tenant | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.

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S.B. Civil Second Appeal No. 332 / 2017

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Smt. Kamla Devi W/o Bhagirath, Aged About 87 Years, By Caste Pareek Bramhan

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Kailash Chandra S/o Bhagirath, Aged About 62 Years, By Caste Pareek Bramhan

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Rajendra S/o Bhagirath, Aged About 56 Years, By Caste Pareek Bramhan, All R/o Merta City Tehsil Merta, District Nagaur.

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----Appellants

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Versus

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Rajendra S/o Shikharmal, By Caste Oswal

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Naurat Kanwar W/o Shikharmal, By Caste Oswal

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Vijaylaxmi S/o Shikharmal, By Caste Oswal,

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Respondent No. 1-3 R/o Merta City Tehsil Merta District Nagaur.

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Sumermal S/o Shikharmal, By Caste Oswal, R/o Merta City Tehsil Merta District Nagaur Presenlty Residing At Coimbatore.

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Madhubala D/o Shikharmal W/o Rikhabhchand Kothari, By Caste Oswal, R/o Coimbatore.

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Laxmi D/o Bhagirath W/o Durgaprasad Pareek, By Caste Pareek Bramhan, R/o Nawan Tehsil District Nagaur Presently Residing At Jodhpur.

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(2 of 5)

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[CSA-332/2017]

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Saraswati Devi D/o Bhagirath W/o Satyanarayan, By Caste Pareek Brahman, R/o Jodhpur.

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Leela Devi D/o Bhagirath W/o Jhoomarlal Pareek, By Caste Pareek Bramhan, R/o Pali District Pali.

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Tulsiram S/o Kesrimal, By Caste Pareek Bramhan, R/o Merta City Tehsil Merta District Nagaur. (Deceased) (Appeal Abated Vide Order Dated 11.01.2017 of Learned First Appellate

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Court)

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----Respondents

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For Appellant(s) : Mr. Trilok Joshi. For Respondent(s) : Mr.Sajjan Singh. Mr. Salil Trivedi. Mr. Manish Bhunwal.

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JUSTICE DINESH MEHTA

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Judgment

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14/05/2018

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The preset appeal under Section 100 of the Code of Civil Procedure has been filed by the appellants-defendants against the judgment and decree dated 13.09.2017 passed by the learned Additional District Judge, Merta (hereinafter referred as the “Appellate Court”) in Civil Appeal Decree No. 57/2015, whereby the judgment and decree dated 20.11.2010 passed by the learned Civil Judge (Junior Division), Merta (hereinafter referred as the “Trial Court”) in Civil Original Suit No. 99/2003, decreeing the suit of the plaintiffs, has been affirmed.

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(3 of 5)

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[CSA-332/2017]

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The requisite facts for the purpose of deciding the present second appeal are that the plaintiffs (respondents No.1 to 3 herein) had filed the suit for taking possession of the residential house in question, after serving a notice under Section 106 of the Transfer of Property act.

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On the basis of the pleadings of the parties, the learned Trial Court had framed the following five issues:-

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¼3½ vk;k oknhx.k izfroknhx.k la_ 1 o 2 ls feu izksfQVl ds 2000@& :i;s izfrekg ls izkIr djus ds vf/kdkjh gS \

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After discussing the evidence, oral and ocular, in detail, the learned Trial Court decreed the suit of the plaintiffs, vide its judgment and decree dated 20.11.2010 and directed the defendants No. 1 to 6 to hand over the possession of the demised premise to the plaintiffs.

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The appellants-defendants filed an appeal against the judgment and decree dated 20.11.2010, which too, came to be

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(4 of 5)

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[CSA-332/2017]

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decided against the appellants-defendants by the learned Appellate Court, vide its judgment and decree dated 13.09.2017.

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Mr. Trilok Joshi, learned counsel for the appellantsdefendants, oppugning the judgments and decree under consideration, submitted that the notice under Section 106 of the Transfer of Property Act served by the plaintiffs was defective, inasmuch as the tenancy of the defendants was scheduled to complete on 26.07.2003; whereas, the plaintiffs had given the notice under Section 106 of the Transfer of Property Act, on 07.07.2003.

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In relation to the aforesaid contention, the Trial Court has considered the evidence of the parties and held that the notice under Section 106 of the Transfer of Property Act was not defective.

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Be that as it may, even if it is presumed that the tenancy in question was to be expired on 26.07.2003, the plaintiffs-landlord could very well terminate the tenancy way of serving a notice under Section 106 of the Transfer of Property Act, even before the time of the tenancy was over.

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In view of the above, no error of facts or law is found in the findings of the Courts below, while deciding the issue with regard to the Notice under Section 106 of the Transfer of Property Act.

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Mr. Joshi, learned counsel for the appellants further contended that the suit in question had been filed by three plaintiffs, namely, Rajendra, Sumermal and Madhubala; whereas, the plaintiff No.1 Rajednra had produced the power of attorney of other plaintiffs, namely, Sumermal and Madhubala, after the date

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(5 of 5)

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[CSA-332/2017]

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of filing of the suit. Learned counsel for the appellants contended that in view of the inconsistency narrated above, the suit, as filed and framed, was incompetent, on the date of filing.

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In response to the above argument, Mr. Salil Trivedi, learned counsel counsel for the respondents-plaintiffs contended that reason of filing the power of attorney at a later point of time, has been mentioned in para-2 of the plaint, which remained unrebutted and undisputed. He further argued that this question had neither been set up in the suit proceedings, nor had any issue been framed in this regard, hence, the question, as sought to be posed by Mr. Joshi, at the stage of second appeal, cannot be permitted to be raised, in view of the embargo contained under Order XLI Rule 2 of the Code of Civil Procedure.

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In considered opinion of this Court, the question, as proposed by Mr. Joshi, at the stage of second appeal, cannot be raised, when the same was never raised before the Courts below.

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In view of the aforesaid fact-situation, the present second appeal involving no substantial question of law, is rejected.

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No orders as to costs.

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/Mohan/65

Smt. Kamla Devi and Ors. v. Rajendra and Ors.

Case brief

What is this about?

What did the court decide?

Smt. Kamla Devi and Ors. v. Rajendra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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