Bitta Devi vs Bimal Kumar

Gopi Nath, J.

This is a plaintiff''s appeal arising out of money by way of arrears of rent, damages and Bhumi Bhawan Kar and other taxes The suit property is on the ground floor of premises No. 10/174 Khalasi Line Kanpur with open space by the side of the room and some space on the first floor of the premises. The case so far as ejectment concerned is confined to by its side. The plaintiff''s case was that the defendant was a tenant of the room in question at a monthly rent of Rs. 10/ per month and that he had defaulted in the payment of rent since 26121969. As regards the space by the side of the room it was alleged that the defendant had unauthorisedly taken possession and encroached upon a space 6''X8'' on the open varandah by the side of the room and was using it as a kitchen, without the permission of the plaintiff which was an illegal and unauthorised act on his part for which he was liable to pay damages and was also liable to eviction therefrom. As regards the space on the first floor it was alleged that the defendant was using it in collusion with one Sunder Lal Nishad, who was its occupier. The plaintiff claimed damages for use of this part of the accommodation also. This part of the case was not canvassed before us in second appeal so we shall confine ourselves to the claim for ejectment of the defendant from the room and the open space by its side, and for the arrears of rent and damages and recovery of certain taxes claimed. The plaintiff''s case was that the defendant was liable to pay Bhumi Bhawan Kar and other taxes of the accommodation which he had not paid. He was alleged to be in arrears of rent for the room leased out to him since 26th December, 1969. As regards the encroachment made, the plaintiff''s case was that he had paid no damages for use and occupation and that he was liable to pay the same at the rate of Rs. 20 per month. He was also alleged to be liable to pay Bhumi Bhawan Kar and the Excess water charges.

By a notice dated 10th October, 1970 the plaintiff required the defendant to pay the arrears of rent and the amounts claimed thereunder by way of damages for use and occupation and the Bhumi Bhawan Kar and the excess water charges within a month of the receipt of that notice and to vacate the premises thereafter. This notice was served on the defendant on 13th December, 1970. The plaintiff''s case was that the defendant had despite the service of the notice not paid the arrears due nor had he vacated the premises as required of him. Hence the suit.

The defence delivered was that the defendant was a tenant of the room as well as the open space by its side which he was alleged to be using as a kitchen and that he was not an unauthorised occupant thereof. It was further pleaded that the defendant had paid the rent due by a money order which the plaintiff had refused hence the same was deposited in court under section 7C of Act No. III of 1947 and the defendant was not a defaulter in the payment of Rent. The agreed rent of Rs. 10 per month was alleged to be inclusive of the Bhumi Bhavan Kar and hence the defendant was not liable to pay anything in addition to the rent agreed. As regards the water charges it was alleged that the defendant was not liable to pay the same.

The trial court decreed the suit for ejectment and the arrears claimed on the finding that the defendant was a tenant of the room in question as also the space by its side; that since he had defaulted in the payment of rent for a period over three months and had not paid the same inspite of the demand notice he was liable to ejectment and to pay the arrears claimed. The agreed rent of Rs. 10 was not found inclusive of the Bhumi Bhawan Kar hence the dependant was liable to pay the same also in addition to the arrears of rent. The defendant''s plea that he had tendered the rent to the plaintiff was not found proved and the deposit under section 7C of U. P. (Temporary) Control of rent and Eviction Act was not found valid.

Aggrieved, the defendant went up in appeal. The lower appellate Court maintained the decree for the recovery of arrears claimed but dismissed the suit for ejectment on the ground that the defendant being a tenant of the room as well as of the open space by the side of the room alleged to have been encroached upon by him he was not liable to eviction from the accommodation, without termination of his entire tenancy by a valid notice under section 106 of the Transfer of Property Act. The court below came to the conclusion that the notice dated 10th of October, 1970 terminated the defendant''s tenancy only with respect to the room and did not terminate his tenancy with respect to the other portion in his occupation as a tenant, hence the tenancy was only partly terminated and the suit for ejectment could not be maintained on its basis. It held that so far as the space by the side of the room was concerned the plaintiff specifically alleged that the defendant was a trespasser and his occupation of it was unauthorised and he was required to vacate it within a month. This according to the learned Judge did not fulfil the requirement of Section 106 of the Transfer of Property Act the defendant accordingly could not be ejected from the premises in persuance of the notice.

Aggrieved by the dismissal of the claim for ejectment, the plaintiff has come up in appeal to this Court. The only question requiring consideration is whether the claim for ejectment could be decreed in the circumstances and on the allegations made by the plaintiff. The learned counsel for the plaintiffappellant urged that even though the defendant was alleged to be a trespasser in respect of a portion of the accommodation in dispute, the notice dated 10th October, 1970 was valid and the suit for ejectment could be maintained on its basis. We shall refer to the contents of the notice and the allegations made in the plaint with a view to finding out whether the instant suit for ejectment was maintainable, in respect of the accommodation in dispute. Both the courts below hate found the defendant to be a tenant of the space by the side of the room. The plaint further stated that the defendant was a tenant of only the room and not the space by its side which was used as a kitchen. As regards that portion of the accommodation was alleged in paragraph 6 of the plaint" that the defendant had illegally and without any permission from the plaintiff encroached upon the covered space 6''X8'' upon varandah of ground floor towards the west of courtyard, which he was using as a kitchen". The defendant was thus not treated as tenant of this part of the accommodation. Paragraph 3 of the notice dated 10th October, 1970 recite as fallows:

''That you have illegally without any permission from my clientess encroached upon the covered space 6''X8'' upon varandah on ground floor towards west of courtyard and are using it as a kitchen.........You are liable to pay damages as compensation for its use and occupation at Rs. 20 per month hence forward till you actually stopped using the same under intimation of my clientess and deliver its possession......".

It further refited that "you are required to comply with the requirements of this notice by paying the amount specified above and vacating and delivering the possession of the unauthorised space within a month hereof of the receipt of this notice." Since the notice was in respect of the room under the tenancy of the defendant it purported to determine the tenancy and required the defendant to vacate the same also. The notice accordingly further stated "your tenancy is hereby determined by the expiry of 30 days of the receipt of this notice and you are required to vacated and deliver possession of the accommodation in your occupation and pay all dues till then against receip to my clientess failing which bgal steps for your eviction, recovery of dues and costs shall be persued against you which please note".

Learned counsel for the appellant urged that since the notice terminated the tenacy of the defendant in respect of the accommodation in his occupation the same shall refer to the tenancy, if any, of the accommodation by the side of the room. It was submitted that the notice had to be construed liberally with a view to upholding its validity. Strong reliance was placed by the learned counsel on Balbir Singh and others v. Smt. Kalawati(1976 (2) A. L. R. 331.). In that case the plaintiff alleged that the defendant had wrongfully taken possestion of one Kothri which was not leased out to him, he was accordingly required to vacate the accommodation in possession which was tenanted as also the Kothri which he had wrongfully occupied on the basis of a notice which, inter alia, recited that the defendant''s tenancy shall stand terminated on the expiry of 30 days, in respect of the tenanted accommodation as also in respect of the Kothri in question, if he treated himself to be a tenant thereof. The notice stated that although the plaintiff considered the defendant to be a trespasser of the Kothri yet if according to the defendant it was a tenant thereof his tenancy to the same was also terminated by the notice. It was held by this Court in Balbir Singh case (supra) that there was no ambiguity in the notice and the plaintiff clearly communicated to the defendant No, 1 her intention that the tenancy will stand terminated on the expiry of 30 days if he treated himself to be the tenant of the Kothri ''N''. The requirement of section 106 of the Transfer of Property Act was found satisfied by the notice in question and it was held that although the plaintiff alleged the defendant to be a trespasser yet since the notice to quit was valid the defendant could be ejected on its basis when he was found to be a tenant of the Kothri ''N''.

The question in the instant case is not one relating to the validity of the notice under section 106 of the Transfer of I roperty but as to whether any notice under that section was given to the defendant terminating his tenancy in respect of the accommodation by the side by the room leased out. A notice under section 106 of the Transfer of Property Act is a condition precedent to a suit for eviction against a tenant. See Mangi Lal v. Sugan Chand Rathi(A. I. R. 1965 S. C. 101.) and Prem Lal and others v. Dr. Jagat Prakash(1966 A. L. J. 181.). In Pattan Din v. Sardar Koran Singh(1967 A. W. R. p. 445.) it was held that a notice by owner demanding possession from an opposite party treating him merely to be a licensee would not be a notice terminating the tenancy". The defendant in that case was alleged to be licensee and a demand for possession was made from him. The defendant was, however, found to be a tenant by the courts below and the suit was decreed on the basis that the claim for ejectment was sustainable on the basis of the notice in question. This Court held that the notice demanding possession from the defendant was not valid notice terminating his tenancy and the suit for ejectment could not be decreed without first terminating the defendant''s tenancy.

A mere demand for possession is no termination of tenancy. See Abdul Jalil v. Haji Abdul Jalil(A. I. R. 1974 Allahabad 402.) and without termination of tenancy a tenant cannot be evicted from accommodation under his lease. In the instant case the notice dated 10111970 (Ext. 1) only demanded possession from the defendant but did not terminate his tenancy with respect to the portion alleged to be unauthorisedly occupied by him. It said "You are required to comply with the requirement of this notice by paying the amount specified above and vacating and delivering the possession of the unauthorised space within a month hereof the receipt of this notice." This notice did not terminate the defendant''s tenancy of that portion of the accommodation, which according to him was included in lease though not admitted by the landlord. There was thus no termination of the defendants'' tenancy of the entire accommodation occupied by him as a tenant according to him. A tenancy cannot be split up. See Woodward v. Dud Lay (Earl)( 1954 (1) All England Report p. 559). The suit for ejectment from the accommodation in question which has now been found to be in the tenancy of the defendant could not be decreed without a valid notice terminating his tenancy in respect of the whole of it. Learned counsel for the appellant urged that the question of the validity of the notice had been waived by the defendant by not raising an objection to it in the written statement. The question of the validity of the notice was canvassed at great length before the court, below, and no objection was raised before it on the ground of waiver. The memo of appeal in this court also did not contain a ground of waiver. The question of notice has been canvassed before us also at great length. In these circumstances we are not inclined to allow an objection based one plea of waiver as regards of the validity of the notice.

The appeal accordingly fails and is dismissed but in the circumstances of the case we make co order as to costs.