Mohommed Sadruddin Khan vs Gulam Mohiuddin

A. Srinivasachari, J.—This appeal arises in a suit filed by the Respondent for ejectment of the Appellant alleging that he took the Chabutra on a lease from the Respondent. Among the various defences that were raised the most important defence was that subsequent to the issuing of the notice by the landlord to the tenant to vacate the premises the landlord accepted rent from the tenant and, therefore, this conduct of the landlord amounts to waiver in-law and therefore, it could not be regarded as though the tenancy is terminated. The other objection was that the notice that was given to the tenant did not expire at the end of the month as required by the Transfer of Property Act and therefore, the notice was bad, The third objection was that the landlord executed an agreement in favour of the tenant stating that he would allow the tenant to continue to be in possession of the Chabutra and further that if at any time the landlord sought to eject the tenant, any additions that the tenant might have mads or any construction that he might have built on the Chabutra, he would. be entitled to compensation for the constructions; and additions. The first court decreed the Plaintiff''s suit. On appeal by the Defendant to the lower appellate court, the lower appellate court accepting the plea of waiver held that in as much as landlord had accepted the rent after he had given notice it amounted; to waiver within the meaning of Section 130, T. P. Act. The present appeal is by the landlord.

So far as this question of waiver is concerned I am of opinion that no question of waiver can arise for this reason that the mere fact that rent is accepted after a notice of ejectment is given would not amount in law to a waiver of the right of the landlord to eject a tenant. There ought to be an express intention on the part of the landlord to waive his right to eject a tenant. Acceptance of rent subsequent to the date of sending of the notice does not necessarily amount to waiver if there is no evidence with regard to the same. This view of mine is supported by a decision of the Bombay High Court reported in � ''Navneeth lal Chunilal v. Bapulal AIR 1952 Bom 132 and also by a decision of this Court reported in �''40, Deccan LR 385''. If the tenancy is taken to have terminated, the amount that the landlord accepts would be treated as damages for use and occupation from a tenant holding over. So this plea of waiver has no force.

I should have allowed the appeal having differed from the lower appellate court on the question of waiver. But it was brought to my notice by the advocate for the Respondent that the trial court was wrong in not allowing the Respondent to lead evidence with regard to an agreement that was executed by the landlord in his favour. This agreement, it would appear, is of the same date as the rental agreement executed by the tenant in favour of the landlord. The trial court forbade the leading of evidence with regard to this document on the ground that it was not registered as required by law. As regards this question I am of opinion that the trial court was wrong because Section 53 A, T. P. Act, enables the Defendant who has been put in possession of a property in pursuance of an agreement or in other words where there has been a part performance of the agreement by the Defendant having been put in possession of the same, it would be open to the Defendant to use the possession as a defence in any suit that might be brought to eject him or disturb his possession. A doubt had arisen as to whether Section 53 A would come into operation only when there is a transfer of immovable property because the words of Section 53 A are

where any person contracts to transfer for consideration any immovable property....and the transferee has in part performance of the contract taken possession of the property....then notwithstanding that the contract, though required to be registered, has not been registered....the transferor or any person claiming under him shall be debarred from enforcing against the transferee any right in respect of the property.

The doubt that arose in this case was whether these provisions would apply to a lease in immovable property or whether it was necessary that in order to invoke the provisions of Section 53 A there ought to be a transfer of immovable property itself. The trend of decisions of all High Courts is to the effect that this would apply to a lease also. The Supreme Court in the case of � Sheth Maneklal Mansukhbhai Vs. Hormusji Jamshedji Ginwalla and Sons, held "where in an action to eject the lessee on the ground that he had not registered the deed of lease....the Defendant lessee takes the plea of part performance....the Defendant is entitled to retain possession in spite of absence of a registered deed". Having regard to this decision of the Supreme Court I am of opinion that evidence should be allowed to be led with regard to Ex. A 1 the agreement alleged to have been executed by the landlord Plaintiff in favour of the Defendant. The result of this will be that the case will go back to the trial court and the Defendant will be permitted to lead evidence with regard to Ex. A1. The trial court will also consider the legal effect of the execution of both the documents, one by the landlord in favour of the tenant and another by the tenant in favour of the landlord. After giving an opportunity to both the parties to lead evidence in support of and by way of rebuttal With regard to the document Ex. A 1, the court will decide the case according to law. The judgment of the trial court would no longer stand but this case will again become sub judice. Having regard to the circumstances of case I make no order as to costs of this appeal Costs Will abide the result.