B. Krishnamoorthy and Others vs Kamalambal and Others

R.S. Ramanathan, J.—The Appellants are the legal representatives of the Defendant in O.S. No. 264 of 1993 and Plaintiff in O.S. No. 140 of 1990 on the file of the Sub Court, Pudukottai.

The Respondents filed O.S. No. 264 of 1993 for recovery of possession of the suit property. The case of the Respondents/Plaintiffs in O.S. No. 264 of 1993 was that B and C schedule properties form part of A schedule property and the same was originally owned by Narayanasami and Nagammal and they are the legal representatives of Narayanasami and Nagammal and the B schedule property was given on lease to the Defendant by name Balasubramanian who is the predecessor in title of the Appellants herein and the lease was renewed and finally a lease deed was executed on 15.3.1979 for a period of nine years and that lease period expired on 8.7.1988 and thereafter, the Plaintiffs issued notice to the lessee K. Balasubramanian asking him to vacate and hand over possession and as the lessee did not hand over possession, the suit was filed for recovery of possession of the properties. In the suit, three schedules were stated and A schedule comprises of B and C schedules and B schedule is having an extent of 46 cents wherein a cinema theatre was constructed by the Defendant and the C schedule property is a vacant site.

The Defendant contended that as per the lease agreement, he is entitled to the lease for a further period of nine years and he is also entitled to the benefits of the Tamil Nadu City Tenants Protection Act and he has constructed a building on the site which was given to him on lease and the notice of termination is not valid in the eye of law and the Respondents/Plaintiffs also received rent after issuance of notice to quit and therefore, the Defendant continues to be the tenant by holding over and therefore, the Plaintiffs are not entitled to any relief claimed for.

Earlier, the said Balasubramanian, who was the Defendant in O.S. No. 264 of 1993 filed O.S. No. 140 of 1990 against the Respondents herein for mandatory injunction to remove the construction put up by the Respondents over the C schedule property viz, the vacant site, for permanent injunction restraining the Respondents from interfering with his possession and enjoyment of the cinema theatre and also for damages. The Defendants in O.S. No. 140 of 1990 are the Plaintiffs in O.S. No. 264 of 1993 and reiterated the same allegations made in the plaint and contested that the Plaintiff in O.S. No. 140 of 1993 viz., Balasubramanian is not entitled to the relief prayed for.

Both the suits were tried together and a common judgment was passed and the Trial Court dismissed the suit in O.S. No. 264 of 1993 filed by the Respondents herein and dismissed the relief of mandatory injunction sought for by the Plaintiff in O.S. No. 140 of 1990 and decreed the suit in respect of permanent prohibitory injunction. Aggrieved by the same, the Plaintiffs in O.S. No. 264 of 1993 filed A.S. No. 215 of 1995 on the file of the District Court, Pudukottai and also filed A.S. No. 214 of 1995 against the decree in O.S. No. 140 of 1990 and the Plaintiff in O.S. No. 140 of 1993 viz., Balasubramanian also filed Cross Appeal against the rejection of the relief of mandatory injunction.

Both the Appeals and the Cross Appeal were heard together and the lower appellate court allowed both the Appeals and dismissed the Cross Appeal filed by the Respondents. Aggrieved by the same, these two second appeals are filed.

Though the Appellants raised five substantial questions of law in the grounds of appeal, on going through the judgments of the court below, according to me, only the following substantial questions of law arise between the parties in these two second appeals:

Whether the decree and judgment of the lower appellate court is not vitiated for non-compliance of Order 41 Rule 31 of the CPC vide 1997/1 LW.

Whether the suit in ejectment is maintainable when admittedly the Respondents received rent even after the issuance of notice of termination.

Whether the notice to quit in respect of the entire property is invalid u/s 106 of Transfer of Property Act.

It is seen from the judgment of the Trial Court that the Appellants herein have not pressed the plea of benefits under the Tamil Nadu City Tenants Protection Act as admittedly, the Act has not been extended to the place where the property is situate.

Learned Counsel for the Appellants Mr. R. Subramanian submitted that the lower appellate court failed to follow the procedure contemplated under Order XLI Rule 31 of the CPC while deciding the appeal and without framing any points for determination, the lower appellate court allowed the appeals and it is a clear violation of the provisions of Order XLI Rule 31 of the CPC and therefore, the second appeals are to be allowed and the matter has to be remanded to the first appellate court for fresh disposal after framing necessary points for determination. The learned Counsel Mr. R. Subramanian appearing for the Appellant further submitted that admittedly, notice of termination of tenancy was defective in nature and it was not issued as per the provisions of Section 106 of the Transfer of Property Act and if the notice is defective, no suit will lie for recovery of possession and therefore, the lower appellate court, without considering the provisions of Section 106, erred in allowing the appeals. He further submitted that the Respondents have received rent even after the termination of tenancy as per the notice issued by them and therefore, they deemed to have waived the notice and accepted the rent from the Appellants and the Appellants are only tenants by holding over and hence, they are not entitled to be evicted without due process of law.

On the other hand, Mr. Balasundaram, learned Counsel for the Respondents submitted that even though the lower appellate court has not framed points for determination, it has dealt with all the points raised by the parties and answered all the issues and therefore, the non-framing of points for consideration cannot be a ground for allowing the appeal and the lower appellate court has substantially complied with the provisions of Order XLI Rule 31 of the CPC by dealing with all the issues raised by the parties.

The learned Counsel further pleaded that there is no question of defect in issuing the notice as the lease expired by efflux of time and there is no need to issue notice and also relied upon the judgment reported in (1997) 11 SCC 358 . He further submitted that it cannot be construed that the Appellants are in possession of the suit property as tenants by holding over and the Respondents have not received any rent as alleged by the Appellants and it has been clearly found by the lower appellate court that a sum of Rs. 2000/= was not received as rent and the amount was received even prior to the expiry of the lease period and therefore, even assuming that the amount was received towards rent, it cannot be contended that the Appellants are tenants by holding over and therefore, the Appellants are not entitled to the relief prayed for.

Order XLI Rule 31 postulates that the judgment of the appellate court shall state the points for determination, the decision thereon and the reasons for the decision. No doubt, the lower appellate court has not framed various points for determination as per Order XLI Rule 31 of the Code of Civil Procedure. Nevertheless, the lower appellate court dealt with each and every issue raised by both the parties in the judgment and therefore, according to me, the lower appellate court has substantially complied with the provisions of Order XLI Rule 31 and non-framing of points for determination cannot be a ground for allowing the second appeal. As a matter of fact, it has been held in the judgment reported inT.Muniappa v. Permiah AIR 2002 Madras 90 where the appellate court has not merely confirmed the lower court''s finding, but has recorded its own conclusion after consideration of materials available on record, Rule 31 was held complied with.

In the present case, as stated supra, the lower appellate court substantially complied with Order XLI Rule 31 by referring various issues raid by the parties. As a matter of fact, the lower appellate court dealt with the notice issued by the Respondents and held that the notice was properly issued and the Appellants herein are not entitled to remain in possession after the termination of the lease and relied upon Section 111(A) and held that there is no need to issue notice of termination as the lease expired by efflux of time. The lower appellate court further discussed the case of the Appellants about receipt of Rs. 2000/= towards rent and also held that the amount was received prior to the expiry of the lease period and the amount was received only as a loan and not as a rent and the amount was not given as rent. The lower appellate court, therefore, held that the Appellants herein cannot be construed as tenants by holding over. Therefore, when the lower appellate court has dealt in detail various issues raised by parties, the appeal cannot be allowed only on the ground that the lower appellate court has not framed the points for determination and hence, the first substantial question of law is answered against the Appellants.

The case of the Appellants is that the notice to quit is defective and without proper notice, they cannot file a suit for recovery of possession. It is admitted that as per Ex.B4, the lease agreement expired on 8.7.1979. It is also admitted that the parties entered into another lease agreement and as per the said agreement dated 15.3.1979, Ex.A1, the lease period expired on 8.7.1988. No doubt, as per the said lease deed, Ex.A1, the parties have agreed to renew the lease deed by mutual consent. It is further stated that if the parties agree to renew the lease period, they must enter into another lease agreement and register the same. Even though the Appellants claim that they are in possession of the property after the expiry of the lease deed and the Respondents have accepted the rent, the lower appellate court clearly held that the receipt of Rs. 2000/= was not towards rent but towards loan amount and it was received prior to the expiry of the lease period and therefore, it cannot be construed that the amount was received as rent and by receipt of the said amount, the Appellants cannot claim to be the tenants by holding over.

Further, it is admitted that the Appellants were not permitted to run the cinema theatre in the premises on the ground that lease was not renewed. The lower appellate court also held that the lease expired by efflux of time and therefore, there is no need to issue a notice to quit as per Section 106 of the Transfer of Property Act. In the judgment reported in (1997) 11 SCC 358 , the Honourable Supreme Court has held that when the lease expired by efflux of time, even though the notice to quit was not valid, the lesson was entitled to recovery possession of the property and the suit filed by the lesson is maintainable.

In this case, there is a clear finding by the lower appellate court that the lease expired by efflux of time and it is also seen from Ex.A1 that the lease is for a period of nine years and it expired on 8.7.1988. Therefore, when the lease expired by efflux of time, the lease is determined as per the provisions of Section 111 of the Transfer of Property Act and there is no need to give notice to quit as held by the Honourable Supreme Court, even if the notice to quit given by the Respondent was not a valid notice as per Section 111 of the Transfer of Property Act, it can be regarded as notice indicating that the tenancy comes to an end. Therefore, the finding of the lower appellate court that the Appellants are not entitled to raise the plea of defective notice is correct and the Appellants are not entitled to be in possession of the property after expiry of the period of lease.

Further, it is the admitted case that the cinema theatre was constructed in the B schedule property and C schedule property is a vacant site. It is also admitted that the Respondents have vacant possession of C schedule property and they have put up some construction. Admittedly, the Respondents are the owners of the suit properties. As they have vacant possession of the C schedule property, the Appellants cannot ask for a mandatory injunction directing them to remove the construction. As the Appellants were lessee and have put up construction in the B schedule property, the Trial Court erred in awarding damages to the Appellants. Therefore, the finding of the Trial Court regarding the grant of damages was rightly reversed by the first appellate court and I do not find any reason to interfere with the finding of the first appellate court. Therefore, the second and third substantial questions of law are also answered against the Appellants.

In the result, the second appeals are dismissed and the judgment of the first appellate court is confirmed. No costs. The connected miscellaneous petition is also dismissed.