SBCFIRST APPEAL NO.156/2011-DHARAM NARAYAN V/S DIGVIJAY SINGH
: JUDGMENT DTD. 25.5.2011
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. CIVIL FIRST APPEAL NO.156/2011
Dharam Narayan
versus
Digvijay Singh
PRESENT
HON'BLE Dr.JUSTICE VINEET KOTHARI
Mr.K.N. Vyas, for the appellant.
Mr. Sandeep Sarupria, for the respondent.
DATE OF JUDGMENT : 25th May, 2011.
JUDGMENT
1. This first appeal has been filed by the defendant – tenant
aggrieved by the findings of eviction on the ground of default in
payment of rent.
2. The learned counsel for the appellant submitted that the
relationship of landlord and tenant between the son of landlord,
namely, Sh. Digvijay Singh and him were not established and he
referred to Ex.A/1 written by the father of Digvijay Singh, namely Sh.
Chandraveer Singh in which he stated that the rent for the shop in
question may not be paid to anybody else and upon his return from
the village Bijolia, he may be paid the said rent, therefore, he
SBCFIRST APPEAL NO.156/2011-DHARAM NARAYAN V/S DIGVIJAY SINGH
: JUDGMENT DTD. 25.5.2011
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submitted that the plaintiff Digvijay Singh S/o Chandraveer Singh
could not file the suit for possession after terminating the tenancy
under Section 106 of the Transfer of Property Act.
3. As against this, the learned counsel for the respondents –
plaintiff drew the attention of the Court towards para 26 of the
impugned judgment and decree in which referring to Ex.5 and 6, he
stated that the said defendant himself had admitted in the previous
suit filed by him against the present plaintiff and father that the rent
for the shop in question was paid to present plaintiff Digvijay Singh
and in view of own admission of the defendant, relationship of
landlord and tenant was established on that basis, therefore, the suit
filed by the plaintiff has rightly been decreed with direction to the
defendant to pay arrears of rent of Rs.64,400/- and monthly mesne
profit of Rs.400/- per month.
4. Having heard the learned counsel, this Court is of the
opinion that upon appreciation of evidence, the learned Court below
has rightly come to the conclusion that the lease was determined and
terminated according to law as per the provisions of Section 106 of
the Transfer of Property Act and the defendant appellant was liable to
handover the vacant possession of the shop in question and was also
liable to pay arrears of rent and mesne profit. No proof of payment of
rent even to father Chandraveer Singh has been adduced before the
SBCFIRST APPEAL NO.156/2011-DHARAM NARAYAN V/S DIGVIJAY SINGH
: JUDGMENT DTD. 25.5.2011
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learned trial Court. Therefore, the decree of eviction has been rightly
passed.
5. The present first appeal being devoid of merit is liable to
be dismissed and the same is accordingly dismissed. The appellant
shall hand over peaceful and vacant possession of the suit premises
to the decree holder within a period of two months from today. The
appellant will not cause any further obstruction or put anybody else
in possession of the said suit shop till he hands over vacant and
peaceful possession to the respondent – decree holder. The
appellants shall also pay mesne profit as already directed by the
learned Court below per month. If the vacant and peaceful possession
is not handed over to the decree holder within a period of two
months, the respondent – decree holder shall not only be entitled to
execute the decree forthwith and the learned trial Court is directed to
execute the said decree forthwith and secure vacant possession from
anybody who is found in possession of the said suit premises and the
respondent – decree holder shall also be at liberty to approach this
Court by way of contempt petition if such vacant and peaceful
possession is not handed over to the respondents or mesne profit is
not paid to him within a period of two months. No order as to costs.
(Dr.VINEET KOTHARI)J.
ITEM NO.14
Ss/-
