C.M. Lodha, J.
1. This is a plaintiff's second appeal arising out of a suit for ejectment and mesne profits.
2. The plaintiff's case is that be rented cut the premises in question situated at Kala Bagh, Ajmer to the deferent on a monthly rent of Rs. 32/8 and that since he required the premises in the question for his own use he served a notice of ejectment, dated 26-6-1962 en the defendant calling upon the latter to vacate the premises en or before 31-7-1962. The defendant while admitting the tenancy and receipt of notice resisted the plaintiff's suit on the ground that the plaintiff had no reasonable and bonafide need for the premises. It was also pleaded that the defendant used to send the monthly rent Rs. 31 50 paisa after deducting the money order charges even though the standard rent had been fixed at Rs. 32/8.
3. After recording the evidence produced by the parties the trial court decreed the plaintiff's suit. On appeal by the defendant the learned Senior Civil Judge, Ajmer by his judgment dated 23-4-1965 held that the plaintiff had failed to prove his reasonable and bonafide necessity for the premises in question and consequently set aside the judgment and decree by the trial court and dismissed the plaintiff's suit. Consequently, the plaintiff has come in second appeal to this Court.
4. At the outset learned Counsel for the appellant submitted that the tenant-defendant Shri B.N. Chatterjee died during the pendency of this appeal and consequently his legal heirs are not entitled to take the protection afforded to the tenants under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. In support of his contention he has relied upon a Bench Decision of this Court: Damodardas v. Badri Narain and Ors. decided on 7-4-1966.
5. Learned Counsel for the respondent, on the other hand, submitted that the principle laid down in Damodardas' case has no application to the facts and circumstances of the present case in as much as the contractual tenancy between the plaintiff and the deceased defendant Chatterjee had not been terminated according to law, and, therefore, the contractual tenancy originally entered into between the plaintiff and the deceased defendant Chatterjee must be taken to have devolved on the legal heirs of Chatterjee also who are entitled to the protection granted under the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950.
6. It may be observed that in para No. 4 of the plaint the plaintiff alleged that he had served a notice dated 26-6-1962 upon the defendant calling upon the latter to vacate the premises on or before 31-7-1962. The service of notice was not denied by the defendant, but he pleaded that the aforesaid notice was waived as the plaintiff accepted rent after service thereof. It was further pleaded that the notice was invalid as the rate of rent and the amount of rent claimed therein were not correct. No issue was however framed regarding the validity of the notice, nor there is a finding of any one of the two courts below on the question of validity of notice. However, the objection regarding the validity of the notice taken by the defendant in para No. 4 of the written statement is purely a legal one and therefore I allowed the learned Counsel for the respondent to argue it. The only two grounds urged by the learned Counsel in respect of the notice being invalid are that in the first place it had been waived by the plaintiff by acceptance of rent after the service of notice and that the rate of rent and the amount claimed therein were not correct.
7. It may be pointed out that their Lordships of the Supreme Court in Ganga Dutt v. Kartik Chandra Das : 3SCR813 have laid down that,
Where a contractual tenancy to which the rent control legislation applies has expired by efflux of time or by determination by notice to quit and the tenant continues in possession of the premises by virtue of statutory protection, acceptance of rent from the tenant by the landlord after the expiration or determination of the contractual tenancy will not afford ground for holding that the landlord has assented to a new contractual tenancy.
Thus in view of the aforesaid dictum of their Lordships (there is no room for argument that the notice was waived by acceptance of rent and a contractual tenancy carne into existence, the defendant Chatterjee and after his death his legal heirs therefore must be deemed to continue in possession of the property in question not as contractual renants but as statutory tenants.
8. As regards the second, objection to the invalidity of the notice, ely, that the rate of rent & amount claimed therein were incorrect it is sufficient to point out that in the first place the rate of rent claimed therein is not incorrect. But assuming it to be so that is no ground for striking down the notice as invalid so long it is not hit by the provisions of Section 106 of the Transfer of Property Act or any Other term pf the contract of tenancy. I am, therefore, unable to accede to the submission made on behalf of the respondents that the notice of ejectment was bad and did not terminate the tenancy.
9. The position then is that the contractual tenancy between the plaintiff and the deceased Chatterjee was terminated by a valid notice to quit and the deceased. Chatteejee continued to occupy the premises in question not as a contractual tenant but ass as statutory tenant. It has been laid dawn in Damodardas case that as the law stands in Rajasthan the surviving members of a tenant's family who were living with him cannot come in the category of a tenant for the purpose of getting protection against eviction under the Act on the death of the tenant. Their Lordships pointed out that it is for the legislature to see to what extent it should go in effectuating the police underlying the Act in giving protection to members of family of a deceased tenant. Thus the decision in Damodardas' case applies with full force to the facts and circumstances of the present case and since the respondent who are the heirs of the deceased tenant Chatterjee cannot claim the protection provided under Section 13 of the Act of 1950, the plaintiffs' suit has to be decreed. In this view of the matter, it is not necessary to go into the question of bonafide and reasonable personal necessity of the landlord as that is only a protection provided to the tenant under Section 18 of the Act of 1950.
10. The result is that I allow this appeal, set aside the judgment and decree by the Senior Civil and Additional Sessions Judge, Ajmer Dt. 23-4-1965 and decree the plaintiffs' suit for ejectment. In the circumstances of the case, I leave the parties to bear their own costs throughout.
11. Learned Counsel for the respondents prays for some time to enable his clients to hand over the vacant possession of the premises in question. Two months' time is allowed.
12. Learned Counsel for the respondent also prays for leave to appeal to Division Bench. However, I do not consider it a fit case for grant of leave. Leave is refused.