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Judgment
A. Ramamurthi, J.—The unsuccessful defendants 1 to 3 in both the Courts below are the appellants. The case in brief is as follows:- The plaintiff Matam filed a suit for eviction of defendants from the suit buildings bearing Door No. 128/1,128/2, 128/3,128/4 and 128/5 in T.S.R. Big Street, in T.S. No. 1995 of Kumbakonam Municipal Town. The plaintiff is a public Trust owning the building and they leased the same to the father of the first defendant by name Rathinam for non-residential use. He was carrying goldsmith profession. After the death of Rathinam, his son the first defendant continues to posses the property as a lessee on a monthly rent of Rs. 75/-. The rent is to be paid on or before the first of every English calendar month. The first defendant is working in Bank of Thanjavur in various places. He subleased the property to defendants 2 to 4 and now, it is in a dilapidated condition and required for demolition and reconstruction. Hence, the suit.
The first defendant resisted the suit stating that the plaintiff Matam is not a public Trust; but is only a private Trust. The defendants are entitled to claim benefits under the Tamil Nadu Buildings (Lease and Rent Control) Act ( hereinafter referred to as ''the Act''). The suit filed in the Civil Court is not maintainable. There is no valid notice to quit. He admitted that he is working in Bank of Thanjavur, but continued the goldsmith pattarai business of his father and defendants 2 to 4 are employed under him. They are not the sub-lessees. The building is in a good condition and no demolition is necessary.
Defendants 2 to 4 stated that the; are not sub tenants and in fact, the son of the first defendant is looking after the goldsmith business. They are unnecessary parties to the suit.
The trial Court framed 7 issues and on behalf of the plaintiff, P.Ws.1 and 2 were examined and Exs. A-1 to A-9 were marked. On the side of the defendants, P.Ws. 1 and 2 were examined and no document was marked. The trial Court decreed the suit and granted two month, time to deliver possession and aggrieved against this, defendants 1 to 4 preferred A.S. No. 68 of 1986 on the file of Sub Court, Kumbakonam and the learned Judge after hearing the parties, dismissed the appeal and aggrieved against this, defendants 1 to 3 have come forward with the present Second Appeal.
At the time of admission of the Second Appeal this Court framed the following substantial questions of law for consideration.
1) Whether the suit for ejectment in the Civil Court not maintainable since the defendant is the tenant of the building entitled to the benefits of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960?
2) Whether the plaintiff is a private trust and hence was not exempt from the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act?
3) Whether Ex. A-1 was a proper and valid notice?
Heard the learned counsel of both sides.
It is admitted that the plaintiff Matam is the owner of the property in question. The suit building was leased out to the father of the first defendant for running the goldsmith business. After the demise of Rathinam, the father of the first defendant, he continued to possess the property as a lessee on a monthly rent of Rs. 75/-. Admittedly, the first defendant is working in the Bank of Thanjavur and according to the plaintiff, the property has been sub leased to defendants 2 to 4. The plaintiff sent a notice under Ex.A-1 dated 11.9.1981 terminating the tenancy and called upon them to deliver possession. Exs. A-2 to A-5 are the served acknowledgments. Exs.A-6 and A-7 are the replies sent by the defendants.
The Trial Court as well as the lower appellate Court decreed the suit filed by the plaintiff and rejected the contentions of the appellants. Learned counsel for the appellants/defendants 1 to 3 contended that the Courts below ought to have come to the conclusion that the plaintiff is a private Trust and, as such, the defendants are entitled to claim benefit under the provisions of the Act. Though P.W.1 admitted that there are documents to show that the plaintiff is a Public Trust, no document had been filed. The first defendant is a tenant of the building and the suit for recovery of possession does not lie. The Civil Court has no jurisdiction to entertain the suit. The notice to quit Ex. A-1 is not valid and proper under law. Defendants 2 to 4 are members of the family of the first defendant and assisted him in the work of goldsmith.
Although learned counsel for the appellants / defendants 1 to 3 raised a plea that the plaintiff Matam is not a Public Trust, but only a Private Trust, it was not seriously disputed. In fact, both the Courts below on the evidence as well as the documents, came to the conclusion that it is a public Trust. In view of the concurrent finding given by the Courts below, it is not necessary to go into the question at this stage whether it is a public Trust or a Private Trust. When once it is proved that it is a public Trust, then naturally the plaintiff is entitled to file only a suit for recovery of possession since the defendants are not entitled to claim benefit under the Act.
Learned counsel for the appellants mainly contended that the notice Ex.A-1 is not a valid one u/s 106 of Transfer of Property Act and on this ground, the suit is liable to be dismissed. Ex. A-1 was issued on 11.9.1981 and it was served on the first defendant only on 19.9.1981. Because of this learned counsel for the appellants contended that there is no clear 15 days notice as provided u/s 106 of the Transfer of Property Act and under the circumstance. it cannot be construed as a valid notice and. as such the suit is liable to be dismissed. In support of his contention, he relied upon the decision reported in Mangilal Vs. Suganchand Rathi, where in it is stated as follows: -
Notice u/s 106 is essential to bring to an end the relationship of landlord and tenant and unless the relationship is validly terminated by giving notice of 15 clear days as provided by S.106, the landlord does not get the right to obtain possession of the premises by evicting the tenant.
There is no dispute about this principle and the applicability of the same depends upon the facts and circumstances in each case.
Learned Senior Counsel for the respondent Matam relied upon Section 27 of the General Clauses Act to emphasize his contention that if and when the landlord entrusts the notice to the post office, his job will be over. It is not necessary to comply Section 106 of Transfer of Property Act that there should be actual delivery of notice. It is just and proper that the notice has to be sent to the proper and correct address of the party concerned. He also placed reliance upon M/s. Green View Radio Service Vs. Laxmibai Ramji and another, that " the service is complete when the notices sent by post. The presumption of service of a letter sent by registered post can be rebutted by the addressee by appearing as witness and stating that he never received such letter". To reiterate his position, he also relied on M/s. Madan and Co. Vs. Wazir Jaivir Chand, Learned Senior counsel also placed much reliance in C. Palchand v. N. Abdul Hameed ( 1974 T.L.N.J. 84), wherein it is observed that admittedly the notice had been posted even on 12.8.1970 which called upon the tenant to vacate by 31.8.1970. Though the notice had been served on the tenant only on 17.8.1970, the relevant date is the date of the posting of the notice. Therefore, the tenant''s grievance, that there has been no notice to quit, is also not available". This analogy can be made applicable to the present case also. Simply because the defendants received the notice much later in point of time and there was any shortage of 15 days, this would not affect the case of the plaintiff and it is not proper to come to the conclusion that the notice is not valid u/s 106 of Transfer of Property Act. A plain reading of Section 106 itself clearly indicates that there should be 15 days notice ending with the month of the tenancy. Nowhere it is stated that there should be a clear 15 days notice from the date of issue and from the date of the service. If that be so, Ex.A-1 was issued on 11.9.1981 and there is a direction that he should deliver possession on 1.10.1981 and the tenancy was terminated on 30.9.1981. In my view, both the Courts below have rightly appreciated the legal position and it cannot be said to be an erroneous appreciation of law, calling for interference.
Learned counsel for the appellant also raised a plea that the date of service has to be excluded and there should be clear 15 days of notice. I am unable to agree with the present contention because if it is accepted. it will lead to dangerous consequences and no one can effectively give a notice u/s 106 of Transfer of property Act. For instance, if there are number of defendants in a particular suit and notice is sent u/s 106, there is every possibility for some of the defendants to delay the same in collecting it and thereby create a situation that Section 106 was not complied with. Certainly, it was not the intention of the legislature that there should be a clear 15 days notice is contemplated. Even in the present case, each of the defendants has received the notice on different date and by this, one cannot rush to the conclusion that the notice is invalid. Now. the notice has been given on 11.9.1981 and the tenancy was terminated ending with the month of tenancy and as such, there is sufficient and substantial compliance of the provisions of Section 106 of transfer of property Act and I find no reason to take a different view. For the reasons stated above, the Second Appeal fails and is dismissed. No costs. Time two months.