K. Raju vs M. Raju and Another

Abdul Hadi, J.—The plain tiff is the appellant in this second appeal against the reversing judgment in A.S. No. 13 of 1981 on the file of the

Subordinate Judge, Tiruppur. According to the plaintiff, he was the tenant for five years from 20.1.1974 under the 1st defendant-1st respondent,

of the suit land and has put up the superstructure thereon and the 2nd defendant-2nd respondent was looking after the tea stall run by the plaintiff

therein, but the 1st defendant unlawfully dispossessed him by getting back possession from the 2nd defendant on 21.3.1978. Hence he sought for

re-delivery in the suit O.S. No. 185 of 1978.

According to the 1st defendant, there was no lease for five years, the plaintiff was only a monthly tenant, and since the plaintiff had sub-leased

the premises to the 2nd defendant, the plaintiff ceased to be a tenant and the 2nd defendant had voluntarily delivered possession to the 1st

defendant. According to the 2nd defendant, he was lessee under the plaintiff, on 21.3.1978 when he returned from his native place, he found that

the 1st defendant had locked the premises and subsequently the 1st defendant refused to open it.

The trial Court found that the 2nd defendant was the sub-lessee and that he did not voluntarily surrender possession to the 1st defendant. So

holding, the trial Court, decreed the suit and granted redelivery of the suit property ""in the same condition in which it was at the time when he was

unlawfully dispossessed along with the articles kept therein"".

But, on appeal by the 1st defendant, the lower appellate Court has held that the alleged lease for five years, being not registered and

consequently hit by Section 107 of the Transfer of Property Act, was not valid and that the plaintiff cannot claim any right of possession and that

hence the relief prayed for cannot be granted. It was also held that though the 1st defendant had not taken possession from the proper person, viz.,

the plaintiff, his taking possession should be taken as peaceful and not wrongful. So holding, the lower appellate Court dismissed the suit. Hence,

the second appeal by the plaintiff.

The submissions of the learned Counsel for the appellant are: Though the lease for five years may be invalid in view of Section 107 of the

Transfer of Property, there is atleast a monthly tenancy. The lower appellate Court erred in holding that the taking of possession by the 1st

defendant from the 2nd defendant was not wrongful, particularly when it has also held that forcible possession was taken.

The 2nd respondent-2nd defendant remains unrepresented.

The learned Counsel for the 1st respondent reiterates that the reasoning of the lower appellate Court is right.

I have considered the rival submissions. It is quite clear that the lower appellate court grossly erred; even though the lease for five years would

be certainly invalid since there is no registered lease deed, that cannot be a bar in holding that there was at least a monthly tenancy in favour of the

plaintiff in the present case. In fact, even according to the written statement of the 1st defendant, the plaintiff was his lessee. His written statement

pleaded only thus:

The plaintiff has taken the premises for rent at Rs. 40 per mensem payable on every English calendar month.... The plaintiff is not entitled to sub

lease the premises to the 2nd defendant, which had been leased out to him. The plaintiff ceases to be a tenant immediately when he had sub-let the

same to the 2nd defendant.... Rent is due for 6 months amounting to Rs. 240 due upto January, 1978.

Thus, once it is pleaded that the rent is due upto January, 1978, it is clear that the plaintiff was tenant at least upto January, 1978, right from

20.1.1974. In Ex.A-7 dated 29.1.1978, the notice issued by the 1st defendant''s counsel to the plaintiff and the 2nd defendant also it is stated that

the plaintiff became the tenant from 20.1.1974, of the suit site.

Even according to law, there is at least a monthly tenancy in the present case. The Supreme Court has also held thus in Biswabani Pvt. Ltd. Vs.

Santosh Kumar Dutta and Others, :

The Privy Council in AIR 1931 79 (Privy Council) in terms held that if an indenture of lease is compulsorily registrable u/s 107 of the Transfer of

Property Act, such a lease can only be made by a registered instrument and if not so made, is void altogether. However, if from such a person in

possession under a void lease the landlord accepts rent as held in Ram Kumar Das Vs. Jagadish Chandra Deb Dhabal Deb and Another, . an

inference of tenancy would follow. Mulla in Transfer of Property Act'', 6th Edn., at P.680 has observed that an oral agreement accompanied by

delivery of possession, if for more than one year is valid, by delivery of possession, for the first year, and thereafter, the lessee continuing in

possession with the assent of the lessor becomes a tenant by holding over u/s 116 of the Transfer of Property Act. Such a lease being created by

operation of law is binding even though the provisions of Section 107 have not been complied with. It is also noted in P.681, that though an

unregistered lease is void as a permanent lease, it can be deemed to be a monthly lease terminable by 15 days'' notice.

In the present case, it is clear from the above extracted averment in the written statement of the 1st defendant that at least upto the period, viz., six

months prior to January, 1978, the 1st defendant was accepting rents from the plaintiff. So, there can be no difficulty in holding that the plaintiff was

at least under a monthly tenancy of the suit site. If so, the possession taken by the 1st defendant from the 2nd defendant, a sub-lessee, with whom

the 1st defendant has no privity of contract, cannot be taken as lawful, particularly when the lower appellate Court has also held that the 1st

defendant took possession forcibly from the 2nd defendant, though it has strangely held that such possession taken was peaceful. The 1st

defendant can take possession only from the plaintiff and that too by recourse to law, if the plaintiff is not willing to give possession. So, if the

possession taken by the 1st defendant is unlawful, he has to redeliver possession to the plaintiff.

The learned Counsel for the appellant also relies on the decision of Ramanujam, J. in Ramakrishnan, M.R.S. v. The Assistant Director of

E.S.W., Etc., Board 95 L.W. 450. There it has been held thus:

Thus, the preponderance of the Judicial opinion is that the tenant in possession of the leasehold property after the termination of the lease cannot be

dispossessed by force except under due authority of law and the position is not different in the case of a tenancy under the Government; that even

if forcible possession had been taken by the Government as a quandom lessor, the quandom tenant is entitled to get back possession of the

property u/s 9 of the Specific Relief Act.

No doubt that was not a case where redelivery was actually sought. That was actually a case where, the remedy sought for by the lessee, was for

restraining the respondents-lessors from taking possession of the premises. (No doubt the remedy was sought for under Article 226 of the

Constitution of India seeking for a mandamus to the above effect.) In the said case, this Court found as a fact that possession was still with the

lessee on the date of the writ petition, and so it granted the abovesaid mandamus sought for. But, it also observed as follows:

It is no doubt true, if on the date of the filing of the petition the petitioner has been thrown out of the premises even by force, then the petitioner

cannot seek restoration of possession in these proceedings by getting a writ of mandamus as prayed for by him and his remedy is only to claim

damages or other reliefs in other appropriate forums.

Then, let me see whether this observation could be correct.

In the present case, admittedly, the plaintiff is out of possession and seeks the relief of redelivery of possession. Then, the question is whether

redelivery could be ordered. No doubt, if the contractual lease has not come to an end, the plaintiff can certainly seek redelivery. Even as on the

date when the suit was filed, viz., 28.4.1978, he cannot rely on the alleged five years lease from 20.1.1974 since admittedly there was no such

registered lease deed for five years at all in the present case. I have already held that the plaintiff could be taken only as a monthly tenant. I also

find that Ex.A-7, dated 29.1.1978, the lawyer notice, was sent by the 1st defendant to the plaintiff terminating the tenancy and demanding

possession as on 1st April, 1978. Therefore, it has to be concluded that the tenancy has been lawfully terminated by the end of March, 1978.

Nevertheless, can it be said that though there is unlawful dispossession of the plaintiff from the demised property, the plaintiff cannot seek

redelivery since there is lawful termination of the tenancy? The answer to this question should only be in the negative. In other words, even in such

a situation, the plaintiff can seek redelivery. In K.K. Verma and Another Vs. Union of India and Another, ., Chagla, C.J. speaking for the Division

Bench of the Bombay High Court observed as follows:

Under the Indian Law, the possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue

in possession after the protected by statute. u/s 9 of the Specific Relief Act, a tenant who has ceased to be a tenant may sue for possession against

his landlord if the landlord deprives him of possession otherwise than in due course of law, but a trespasser who has been thrown out of possession

cannot go to Court u/s 9 and claim possession against the true owner. Therefore, our law makes a clear and sharp distinction between a trespasser

and an erstwhile tenant. Whereas the trespasser''s possession is never juridical and never protected by law, the possession of an erstwhile tenant is

juridical and is protected by law. Therefore, as far as the Indian Law is concerned, an erstwhile tenant can never become a trespasser. It may or

may not be that in English law in certain circumstances he can become a trespasser and it does seem that the landlord can enter the premises and

deprive the erstwhile tenant of his possession, but in India a landlord can only eject his erstwhile tenant by recourse to law and by obtaining a

decree for ejectment.

This decision has also been affirmed by the Supreme Court in Yeshwant Singh v. Jagdish Singh (1968)2 S.C.J. 244 : (1968)2 S.C.R. 208 :

AIR 1968 S.C. 620, (vide paragraphs 10 and 15 therein).

The Supreme Court in the said decision has also overruled the decision in W.B. State v. Birendra Nath AIR 1955 Cat. 601, relied on by the

lower appellate Court in the present case, thus:

Our attention was invited to the decision of the Calcutta High Court in State of West Bengal Vs. Birendra Nath Basunia and Others, . In that case

the High Court refused to issue an order under Article 226 of the Constitution prohibiting the Government from forcibly taking possession of lands

which had been validly resumed by Government. We are not concerned with that question here. But we do not agree with the conclusion of the

High Court that a lessor is entitled in India to use force to throw out his lessee.

The abovesaid K.K. Verma and Another Vs. Union of India and Another, . Yeshwant Singh v. Jagdish Singh (1968)2 S.C.J. 244 : (1968)2

S.C.R. 208 : AIR 1955. S.C. 620. were also relied on in the abovesaid Ramakrishnan, M.R.S. v. The Assistant Director of E.S.W., etc., Board

L.W. 450. by Ramanujam, J. In fact, Ramanujam, J. also relied on the decision in Chandra and Co. Vs. State of Rajasthan and Others, thus:

In Chandra and Co. Vs. State of Rajasthan and Others, in more or less similar circumstances as in this case it was held that the State is not free to

act in a high-handed manner as to dispossess a person in juridial possession, of a property otherwise than in due course of law, that a person is in

peaceful possession of property cannot be deprived of the possession of the same by the State or its officers, except in accordance with law, that

in a case where the State or its officers have dispossessed such a person of the property in his possession without any authority of law, it is open to

him to seek redress against the aforesaid unlawful action of the State and its officers by invoking the jurisdiction of the High Court under Article

226 of the Constitution and that the State as owner of property does not enjoy any higher rights than the citizen in the matter of taking possession

of its property.

In the light of this observation of Rajasthan High Court, which is approved by Ramanujam, J. it can be safely said, with due respect, that the

abovesaid other observation of Ramnujam, J. extracted above at Page 8 herein stating that if on the date of the petition, the petitioner had been

dispossessed, the petitioner cannot seek restitution of possession by writ of mandamus, but can claim damages or other reliefs in other appropriate

forums, may not be quite correct and, such a petitioner can seek restitution also.

In the result, the second appeal is allowed, the judgment and decree of the lower appellate Court are set aside. The judgment and decree of

the trial Court are restored subject to the following modification : The expression, ""in the same condition in which it was at the time when he was

unlawfully dispossessed alongwith the articles kept therein shall be deleted in the decree since there is no clear proof as to in what condition the suit

property was at the abovesaid time and about the abovesaid articles and since the trial Court has also not deals. with this question and given any

finding thereon. The learned Counsel for the appellant also did not advance any argument before me in this regard. In other respects, the decree of

the trial Court shall stand. In the circumstances of the case, there will be no order as to costs.

No doubt, it is needless to add that it is open to the 1st defendant to take appropriate steps in accordance with law to take possession from

the plaintiff after redelivery decreed herein.