Dambrun Paulin Rep. by Power Agent, Mangeny Balasubramanian vs Rollendo Joseph

I. David Christian, J.—Appeal against the Judgment and decree made in A.S. No. 25 of 1984, on the file of I Additional District Judge,

Pondicherry dated 22.12.1987 reversing the judgment and decree granted in favour of the plaintiff in O.S. No. 945 of 1982, on the file of I

Additional District Munsif, Pondicherry dated 11.11.1983 The plaintiff who succeeded before the trial Court, but lost before the first appellate

court is the appellant in this Second Appeal.

The Plaintiff filed the suit alleging that he is the absolute owner of the suit property, that the suit property is a vacant site with a compound wall

on all four sides, that it is situated in the junction of Kandappa Mudali Street and Mission Street at Pondicherry, that there is a garage on the North

Western corner of the suit property, that the plaintiff has let out the garage and the site surrounding the same, that the plaintiff rented out the

portion, namely the garage to various persons and lastly to one Kannappan, who has since vacated and handed over possession to the plaintiff,

that the present suit property is a vacant site surrounding the said garage which is also encircled by all four sides by compound wall, that the

defendant is in possession and enjoyment of the same as a lessee having executed a lease deed in favour of the plaintiff on 8.7.1959, that the

defendant has subsequently executed a lease deed in favour of the plaintiff on 7.6.1971, that the defendant is paying a sum of Rs. 20/- as rent per

month payable on or before 10th of every month, that the defendant was a habitual defaulter in payment of rent, that the plaintiff issued a notice on

14.3.1979 alleging arrears of rent from July 1978, that thereafter the defendant sent arrears of rent for seven months, that subsequently the plaintiff

filed three applications before the Rent Controller, Pondicherry in HRCOP. Nos. 62, 63 and 90 of 1979 praying for eviction of the defendant on

the ground of wilful default in payment of rent, demolition and reconstruction and on the ground that the premises is being used by the tenant

contrary to the purpose for which it was being let out, that the defendant contested the said proceedings by stating that the Rent Control Act is not

applicable since the property is let out to him is only a vacant site and does not include any building, that upholding the contentions raised by the

defendant, the petitions were all dismissed by the Rent Controller, that the appeals preferred by the plaintiff were also dismissed, that the defendant

is acting contrary to the terms of the lease agreement, that he has fallen in arrears in payment of rent, that the premises was taken for residential

purpose, but he is conducting a workshop without authorisation from the plaintiff, that the contractual period of contract is already over, that the

premises in question is required for the purpose of constructing a building for which the plaintiff has also obtained permission from the Town

Planning Department, that the plaintiff contemplates pushing up a two storeyed residential building in the suit site, that the defendant has no right to

continue in occupation, that the plaintiff has issued a notice dated 27.7.1982 and the defendant has replied raising false contentions, that therefore

the plaintiff is constrained to file the suit for recovery of the suit property from the defendant.

The defendant contested the claim of the plaintiff by contending that the suit is not properly valued, that proper court fee has not been paid, that

the court has no jurisdiction, that the defendant took vacant Manai for lease from the plaintiff''s sister 35 years ago, that he has put up a compound

wall, that he has also put up a shed for conducting workshop, that he has also put up a house in the remaining portion for his residence, that the

shed was subsequently surrendered to the plaintiff''s sister since she required the same for parking her vehicle, that the defendant has put up a shed

where he is running his workshop, that the plaintiffs sister has allowed the defendant to put up the shed for which the defendant has spent

considerable amount, that the plaintiff is entitled to claim only a monthly rent of Rs. 20/- that the defendant has spent Rs. 6,000/- in 1946 itself for

putting up the shed and the wall, that therefore, the plaintiff has agreed to demand only a sum of Rs. 20/- as monthly rent for ever, that the plaintiff

has suppressed that said oral agreement between the defendant and the plaintiff''s sister Lourdhmary, that the plaintiff has been receiving a rent of

Rs. 20/- without any demur, that this defendant signed the lease deeds since he believed the plaintiff that he will abide by the oral agreement, that

this defendant has been paying the rent regularly as and when it became due, that in fact the plaintiff has refused to receive the rent when he sent it

by Money Orders, that the rent due has been deposited before the Rent Controller, that he has not defaulted in payment of rent, that it is false to

state that the defendant is using the Manai for a purpose which has not been agreed to by the plaintiff, that the plaintiff filed HRCOPs which have

been dismissed, that the appeals were also dismissed, that the plaintiff has become a permanent resident of France, that he is having a bungalow at

France, that the plaintiff is having number of houses at Pondicherry, that his request is not genuine or bona fide, that it is not true to say that the

contract period of tenancy is over, that the plaintiff is not entitled for eviction of the defendant, that the defendant has made improvements in the suit

Manai, that therefore the plaintiff is not entitled to claim vacant possession, that the plaintiff has failed to give notice u/s 106 of the Transfer of

Property Act, that the suit is bad in law and that therefore, liable to be dismissed.

On the above pleadings, the learned District Munsif has framed issues as to whether the suit is under-valued for the purpose of court fee,

whether the court has got jurisdiction to try the suit, whether the plaintiff is entitled to eject the defendant from the suit property and whether the

plaintiff is entitled to any reliefs.

The plaintiff''s power agent Balasubramanian was examined as P.W.1 through whom Exs.A-1 to A-B documents were filed. The defendant

examined himself as D.W.1 and has filed Ex.B-1 document on his side.

On consideration of the evidence, oral and documentary, the learned District Munsif held that valuation of the suit property for the purpose of

the suit is correct, that the court has got jurisdiction to try the suit, that the defendant has committed wilful default in payment of rent, that the

property is required for the use of the plaintiff, that the defendant is not entitled to any value of improvements made because they were not

authorised by the plaintiff and therefore, decreed the suit as prayed for ordering eviction and recovery of possession from the defendant.

Aggrieved at the said findings and the decree granted by the trial Court, the defendant has preferred appeal in A.S. No. 25 of 1984. Learned

Additional District Judge concurred with the findings of the lower court with regard to question of court fee, jurisdiction and requirement of the

property by the plaintiff, but, however, dismissed the suit holding that proper notice u/s 106 of the Transfer of Property Act has not been issued.

Aggrieved at the said findings and the decree, the plaintiff has come with this Second Appeal.

At the time of admission of the appeal, this Court has formulated the following substantial questions of law as arising for consideration:-

(1) Whether termination of lease u/s 111(a) is proper?

(2) Whether notice u/s 106 of the Transfer of Property Act is required to the subject matter?

(3) Is not the respondent a tenant by sufferance?

(4) Has not the respondent waived the benefits of Section 106 of Transfer of Property Act by not raising the plea in the written statement and in

the first appeal?

The points:-It is not in dispute that the plaintiff is the absolute owner of the suit property and the defendant has taken possession of the same as

a lessee agreeing to pay a monthly rent which was initially Rs. 12/- per month and subsequently raised to Rs. 20/- a month under Ex.A-2 dated

1.6.1971. The defendant has admitted the execution of Ex.-8 lease deed on 8.7.1959 and also the subsequent lease deed dated 1.6.1971. The

defendant has not denied the execution of these two lease deeds in favour of the plaintiff and his possession also is only by virtue of these lease

deeds. In fact white admitting that he has executed Ex.A-2 and A-8 lease deeds, he would state that prior to the execution of the second lease in

1971 there was an oral agreement between plaintiff''s sister and the defendant as per which he has been permitted to make improvements in the

suit property and it was also agreed that he would be allowed to continue perpetually for the same rent at Rs. 20/- per month. The trial court after

discussing various documents and oral evidence has concluded correctly for the reasons stated in the judgment that the oral agreement is false and

the defendant is in possession only as a lessee first under Ex.A-8 in the year 1959 and thereafter under Ex.A-2 in 1971. When execution of these

documents was not disputed by the defendant, the lower appellate court has erroneously failed to accept Ex.A-2 lease deed stating it is only a

photocopy and original is not produced. At the time of marking Ex.A-2 and even during the evidence of D.W.1, the defendant never raised any

dispute with regard to execution of two lease deeds Exs.A-8 and A-2, one in 1959 and later in 1971 respectively. Therefore, the lower appellate

court was definitely wrong in not accepting Ex.A-2 only because it is a photocopy. The defendant also has not questioned the genuineness of

Ex.A-2 copy and the plaintiff has also not spoken to or given any explanation as to why he was not able to file the original. Anyhow the oral

agreement contrary to the terms of Exs.A-8 and A-2 has been correctly rejected by both the courts below.

The only question that survives for our consideration in this Second Appeal is whether there has been proper termination of tenancy by the

defendant as required u/s 106 of the Transfer of Property Act. Before ever going into the question of notice u/s 106 of the Transfer of Property

Act, even though an additional statement was filed by the defendant at a later stage making a bald statement that the suit is bad for want of S.106

notice, obviously the defendant did not press the point and therefore, no issue was framed at the time of trial. Parties have joined issue and have

adduced evidence and the defendant never urged before the court during the time of trial that the issue with regard to notice u/s 106 of the Transfer

of Property Act has been raised. For the first time such a stand has been taken up during the first appeal and the learned District Judge also agreed

with the contention raised by the defendant in this aspect and held that there has been no proper termination of tenancy even though issuance of

Ex.A-5 notice has been proved. Learned District Judge has held that there is no specific averment in the notice with regard to termination of

tenancy and the notice also has not been given in accordance with Section 106 of the Transfer of Property Act.

Ex.A-5 is a notice issued by the plaintiff to the defendant and it is dated 27.7.1982. Receipt of this notice by the defendant is acknowledged

by him under Ex.A-6. In Ex.A-5 it has been stated clearly by the plaintiff that the defendant has come into possession of the suit property as a

lessee first by executing a lease deed dated 8.7.1959 and subsequently another lease deed dated 1.6.1971. The agreed rent was Rs. 20/- per

month payable on or before 10th of every month. The plaintiff also has referred to his earlier filing HRCOPs against the defendant for eviction on

three grounds stated therein and dismissal of the petitions and appeals filed thereafter wherein it was held that Rent Control Act is not applicable to

the case because the property let out to the defendant is only a vacant site. It is only thereafter in paragraph-4 of Ex.A-5, the plaintiff has clearly

stated that he is therefore, issuing the notice pointing out that the defendant has violated the contract of tenancy by not regularly paying the rent and

for using the premises for running his workshop, which is not the purpose for which the property was let out.

It is stated by the plaintiff in this paragraph that the landlord, namely the plaintiff contemplates putting up new construction for which he has

already obtained permission from the concerned Town Planning Authority. In paragraph-5, the plaintiff has called upon the defendant by this notice

to vacate and hand over possession by 1.9.1982. It is also further stated in paragraph-5 that no notice u/s 106 is required because tenancy is

determined by efflux of time and because of violation of the terms of the contract. But by way of abundant caution, the plaintiff has given 15 days

notice and demanded vacant possession by 1.9.1982. Notice is dated 27.7.1982. It is not correct to state as observed by the learned District

Judge that proper termination of tenancy has not been made in this notice. The plaintiff has made his intention very clear by stating that even though

tenancy already is terminated by efflux of time, by abundant caution he is issuing this notice making his intention very clear of terminating tenancy of

the defendant. Therefore, it can never be stated that notice Ex.A-5 does not satisfy the requirements of Section 106 of Transfer of Property Act.

Fifteen days clear notice is also given because the notice is dated 27.7.1982 and the vacant possession is demanded from the defendant on

1.9.1982. Observation of the learned District Judge that on 1.9.1982, a fresh tenancy has been commenced and therefore notice is not valid, is not

warranted.

Section 106 of the Transfer of Property Act reads as follows:-

... and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month terminable on the part of either

lessor lessee, by fifteen days'' notice expiring with the end of a month of the tenancy"".

The tenancy has commenced from the beginning of English calendar month and as per the lease agreement, rent is payable on or before 10th of

every month. As already seen, Ex.A-5 notice has been given fifteen days clear notice for the defendant to surrender vacant possession. Learned

counsel for the respondent relies upon a ruling reported in Madhavan Vydiar Vs. Janaki, wherein it was held that termination of tenancy has to be

for the end of the tenancy and vacant possession must be demanded for the next day.

As already pointed out, the controversy in respect of Section 106 notice was not raised during the time of trial and there is no denial of

averment made in the plaint that tenancy commences from the first of English calendar month and the rent is payable on or before 10th of every

month. There is no evidence with regard to period of tenancy and no doubt even after expiry of the period of lease, the defendant has been

permitted to continue in occupation and rent also was accepted by the landlord. There-fore, the defendant is a tenant holding over and therefore

the tenancy can be terminated only in the manner enjoined as per Section 106 of the Transfer of Property Act. It is also admitted that lease was

not for agricultural or for manufacturing purposes. Therefore, the tenancy is only a month to month tenancy.

A Division Bench of Karnataka High Court in Sudarshan Trading Company Limited Vs. L. D''Sauza, has held as follows:-

If after the expiry of the period of lease or after its determination, a tenant merely holds over without the landlord''s consent, there is no tenancy of

any kind at all. If in such case, the tenant continues in possession without landlord''s consent, he becomes what in English law is called a ""tenant by

sufferance"". This is really no tenancy at all in the strict sense and requires no notice to determine it, the expression being merely a fiction to avoid

the continuance of possession operating as trespass, No notice is necessary to terminate a tenancy at sufferance. But the case of tenancy by

holding-over is different and is governed by the provisions of Section 116, T.P. Act, Tenancy by holding-over is a creature of a bilateral

consensual act and does not come into existence by a mere unilateral intendment or declaration of one of the parties...If there is no fresh contract

of tenancy between the parties and such contract cannot come into existence without the consent of both - the position is that the case clearly falls

u/s 111 (a) and no notice u/s 106 becomes necessary as there is no month to month tenancy by holding over. This would be so notwithstanding the

unilateral assertions of the landlord in the plaint that there was a month to month tenancy.

In Smt. Shanti Devi Vs. Amal Kumar Banerjee, Supreme Court held that before going into the question of validity of a notice u/s 106 , T.P.

Act, it was necessary for the Court to decide first whether Section 106 was at all attracted; and that parties could not by their pleadings alter the

intrinsic character of the lease or bring about a change of the rights and obligations flowing therefrom. But in the present case, there is no allegation

by the defendant, that he was a tenant holding over within the meaning of Section 116 of the Act. Now, in order that a lease should be deemed to

have been continued in favour of the defendant it was necessary to show that he remained in possession of the premises demised after the

determination of the lease granted to him and the plaintiff had expressly or by necessary implication assented to his continued possession. There

was, therefore, no question of service of any notice u/s 106 of T.P. Act.

In Bhawanji Lakhamshi and Others Vs. Himatlal Jamnadas Dani and Others, the Supreme Court has stressed the need for consent of both

parties for a tenancy by holding over u/s 116:

Learned Counsel for the appellants argued that whenever rent is accepted by a landlord from a tenant whose tenancy has been determined, but

who continues in possession, a tenancy by holding over is created. The argument was that the assent of the lessor alone and not that of the lessee

was material for the purposes of Section 116. We are not inclined to accept this contention"".

Considering the evidence available in the present case, there is no fresh contract of tenancy between the parties and such contract cannot come

into existence without consent of both and this case comes clearly u/s 111 (a) of T.P. Act and no notice u/s 106 becomes necessary as there is no

month to month tenancy holding-over.

Moreover, belated raising the question of requirements and propriety of S.106 notice is not to be accepted and this has been held so by the

Supreme Court in Gauri Shanker Vs. Hindustan Trust (Pvt.) Ltd. and Others, ), the Supreme Court has observed as follows:-

...Ultimately when the suit for eviction was filed in 1959, it dragged on for several years. In the written statement which was originally filed, no plea

was taken that a valid notice to terminate the contractual tenancy had not been served and, therefore, the petition for eviction was not maintainable.

The respondent waited for 8 years before seeking an amendment to include a plea on the absence of such a notice. The trial Court did allow the

amendment but in our opinion no such amendment should have been allowed on account of the gross delay and laches on the part of the

respondent in raising such a plea. In such matters, it must be remembered that if a technical plea of the nature sought to be raised had been raised

at an earlier stage, the appellant could have withdrawn the petition for eviction with liberty to file another petition after serving the requisite notice.

By not raising that plea for nearly 8 years, a great deal of prejudice was caused to the appellant.

In our judgment, the course of the litigation between the parties had taken and the manner in which the plea was sought to be raised by an

amendment after eight years of the institution of the eviction petition and further the abandonment of any contention based on that plea before the

Rent Control Tribunal were more than sufficient to persuade the court that any argument based on the absence of a valid notice should not have

been allowed"".

Following the said decision of the Supreme Court, the Division Bench ultimately held that even on the assumption that there was a month to month

tenancy it would cause prejudice to the respondent, if appellant is permitted to raise this ground of invalidity of the notice at this distance of time

and the point was answered against the defendant-appellant-tenant.

So far as the present case in our hand is concerned, the defendant has not raised any plea with regard to termination of tenancy or his holding

over or propriety of notice u/s 106 of Transfer of Property Act, when he filed the written statement. Obviously, issues have been framed after the

defendant filed his written statement and since he has not raised any plea with regard to notice u/s 106 of the Transfer of Property Act, no specific

issue has been framed. Original written statement was filed by the defendant on 11.3.1983. An Additional written statement is purported to have

been filed in July 1983 which is practically a repetition of the original written statement which contain ten paragraphs. Only two small paragraphs

have been added in the additional written statement. It is merely stated that the plaintiff failed to give notice u/s 106 of the Transfer of Property Act

and the suit itself is bad in law. Parties have joined issues and adduced evidence and Ex.A-5 notice has been marked which is the notice given u/s

106 of Transfer of Property Act and no contention has been raised by the defendant before the trial Court and the suit was ultimately disposed of

in the year 1987.

For the first time in the appeal which came up for hearing in 1988, an argument was advanced that proper notice has not been issued, but there

is no plea that the defendant is a tenant holding over or any contra assertion with regard to commencement of tenancy other than what is averred in

the plaint. A reading of Ex.A-5 also would show that it is to satisfy the requirement of Sec. 106 of Transfer of Property Act. Moreover, following

the principles laid down in the rulings of the Supreme Court referred to above, at the belated stage, nearly after eight years, if this question has to

be considered with all its dimensions, it will prejudice the interest of the plaintiff and, therefore, on this point the prayer of the plaintiff cannot be

rejected.

For all these reasons, I hold that no notice is required and even if it is required Ex.A-5 satisfies all the requirements of Section 106 of Transfer

of Property Act and therefore, the lower appellate court was not correct in allowing the appeal and dismissing the suit on the ground of want of

notice u/s 106 of Transfer of Property Act. In the result, the appeal is allowed and the judgment and decree of the lower appellate court is set

aside and that of the trial Court is restored. However, there shall be no order as to costs.