Parshotam Lal vs Kalayan Singh and another

(1) This second appeal is directed against the judgment and the decree of the learned DistrictJudge, Jammu, dated 24th Oct. 1969, decreeing the

plaintiff's suit for ejectment from a shop after reversing, the Judgment of the trial c urt, being the Munsiff, Judicial Magistrate, Jammu, dated 22nd

May, 1969, whereby, he had dismissed the plaintiff's suit.

(2) The suit was filed on 2566, for ejectment of the defendant, Parshotam Lai, from a shop situated at Parade ground, in the Gity of Jammu, on the

ground of personal necessity within the meaning of Section 11 of the Jammu and Kashmir Tenancy (Stay of ejectment proceeding) Act, 1966, Act

No"". XXXIII of 1960 referred to hereafter as the Act.

(3) The plaintiff has a number of sons in service and some sons reading in school at JammuJ He has his residence at Jammu, but he has been

carying on business of grocery (Kerana) at Qazikund near Srinagar, for the preceding ten years. It was alleged that as he was not keeping

physically fit at Qazikund, he wanted to shift his business to Jammu and therfore he required this shop for his personal business. Several issues

were raised before the trial court. One of them was issue No. 5, whether the defendant was served with any valid notice for vacating the shop.

Other issue was issue No. 4, to the effect, whether the plaintiff reasonably required the shop arid if his requirement was more than that of the

plaintifs.

(4) It was urged on the defendant's behalf that he had no other source of income, except the business, which he has been carrying on in this shop

and in the event of his ejectment, his family, consisting of 4 children and his wife would be thrown on the street.

(5) The learned Munsiff, decided both these issues No. 4 and 5 in favour of the defendant, against the plaintiff.

(6) The learned Munsiff on issue No 5 has found that a notice was necessary but no notice was proved to have been served on the defendant.

Referring to a postcard, which was on the record, bearing an endorsement, presumably of post office 'refused'. The learned Munsiff has held that

the plaintiff took no steps to prove it, not did he in his own evidence make any claim of having given any notice to the defendant.

(7) As regards issue No. 4, the learned Munsiff, after referring to the evidence adduced on behalf of parties, regarding the requirement of the shop

and comparing the urgency of the comparative necessity of the two, he had held ""the defendant's requirement of the shop in dispute is more than

that of the plaintiff, and therefore he decided it in favour of the defendant.

(8) On appeal the learned District Judge, in his judgment, while dealing with issue No. 4, has observed.

In case the landlord reasonably requires the house or shop for his own use he will be entitled to a decree for ejectment irrespective of any amount

of inconvenience to the tenant. When the court comes to a conclusion that the suit premises are reasonably required by the landlord for his

existence and not for expansionist designs, the decree for ejectment cannot be refused to him on the consideration it would cause hardship to the

tenant.

(9) In support of his observations, he has referred to certain decisions of different High Courts including AIR 1967 J&K, 141 which is a decision

of a single Judge of this court. After making the above observations, the learned District Judge, has concluded that :

''When the plaintiff appellant is earnest to shift his business to Jammu he reasonably requires the suit shop for his need. In such a case the

inconvenienc3 of the defendant respondent cannot stand in his way to get a decree for ejectment. Finding of the lower court with regard to issue

No. 5 (which is a mistake for issue No. 4) is, therefore, reversed and it is held that the suit shop is required by the plaintiff for his own use even

when looked from the comparative advantages and disadvantages of the parties.

(10) It is however, relevant to mention that the conclusions arrived at by the learned District. Judge, as to a reasonable requirement of the shop by

the plaintiff and the comparative disadvantages of the defendant do not appear to be based on any discussion of the evidence particularly that of

the defendant. As a final court of fact all the evidence should have been weighted by him. A decision on fact without due consideration of evidence

is no decision in the eye of law.

(11) As to the view of law, he has rather put it too wide that the landlord is entitled to a decree, if he only requires the shop for his own use

''irrespective of the amount of inconvenience to the tenant."" He should not have set aside the findings of learned trial court, without referring to the

evidence, adduced on behalf of the parties.

(12) Explanation to Section II, of the Act is quite a speaking one. The material portions :

The court.........and in determining reasonableness of requirement for occupation shall have regard to the comparative advantage and disadvantage

of the landlord or the person for whose benefit the house or shop is held and of the tenant.'1

(13) The case referred to by the learned District Judge, have not recorded any discordant note to this proviso. It has rather been endorsed also in

some other cases of this court as well. Cases of other High Courts, having no similar provision as in the above explanation, have no application to

this State.

(14) In 1968 J&K Page 59, in para 24 at page 64, a Division Bench of this Court, Bhat and Mukerjee JJ had laid emphasis on the above proviso

by saying that it ""enjoins upon the courts to bear in mind the respective advantages and disadvantages accruing from the proposed order to the

respective persons competing for the occupation of the premises namely the landlord and the tenant.''

(15) The proviso has been interpreted also in 1363 K.L J, page 38, wherein, it has been emphasised that the Courts have to go into comparative

advantages and disadvantages of the landlord, and that of the tenant. I would put it in other words, as comparative convenience and inconvenience

to the landlord, and the tenant in the matter of requirement of the house or the shop as the case may be. Even 1967 J&K 141, on which the

learned District Judge, has relied, has not taken contrary view. It has only explained that the requirement of a landlord should be in an objective

sense, and not the whimsical, and duplicitous desires of landlord.

(16) The question of requirement will always differ from the case to case, depending on the facts of its own. The advantages and disadvantages of

the parties have to be balanced The landlord may be reasonably requiring the shop for his use, bur with a view to Judge a comparative

disadvantage to the tenant, It may have to be ascertained, if the requirement of the landlord is reasonably imperative, and a pressing one, if he

cannot manage otherwise, and if he cannot differ it till any reasonable time during which the tenant can arrange to shift, etc. The learned District

Judge in his judgement as I have already indicated has not discussed the evidence, keeping in view, the comparative advantage and disadvantages

of the parties. His judgment, is, therefore, bad in law, in this regard, and must be set aside.

(17) Now, coming to issue No. 5, the learned District Judge, appears to be of the view that a notice under section 106 of the T.P. Act was, of

course, necessary, but he has found on the record a postcard with an endorsement on its back as 'refused' as also an acknowledgement or,

bearing some postal seals. He has considered this to be sufficient notice to the defendant on the authority of severa1 decisions he has quoted and

provision of Section 27, of the General Clause, Act, read with Section 114 of the Evidence Act. The learned District Judge, seems to have

misdirected himself in relying on this postcard was addressed to ""Shri Boim Sain S/O Sunder Dass Khatri, shop no 21 near parade ground Jammu

It is dated 321966. Below address column, there is an endorsement in English ""absconded/refused 152"" The acknowledgement or lying by the side

of the postcard bears the same address as the post card.

(18) It would appear from the plaint that there were two defendants, the present appellant Parshotam Lal, defendant No 1 and his brother Bhim

Singh, defendant No 2 The averment in the plaint is that it was Parshotam Lal, dependent No 1 the present appellant, who had taken the shop on

rent through his brother Bhim Singh, defendant No 2 with effect from 391969, on executing a rent deed for a period of 11 months. The tenant o£

the shop, according to the plaint itself, was Parshotam Lal, defendant No 1, and it does not make any claim that Bhim Singh defendant No 2 was

also a tenant alongwith defendant No 1. But the postcard, referred to above, was addressed to Bhim Singh alone. Thus, there vas absolutely no

notice to Parshotam Lal, defendant No 1 even if it were to be supposed that the postcard, in due course of the business of the post office, had

reached the addressee being defendant No 2, who refused to acknowledge it. Any notice to defendant No 2, was no notice to tenant, defendant

No 1.

(19) Besides, the mere presence of the postcard, and the acknowledgement from with certain postal seal and an endorsement there on, will not,

lead to any presumption that this postcard was addressed by or on behalf of the plaintiff to the addressee, and its acknowledgement was by the

letter. It is not a public document. It was required to be duly proved by calling the writer of the postcard or one who was conversant with his

writing or at least the person who had posted it, and also by calling the postman, who may have made the endorsement of refusal, when the

acknowledgement of the postcard is denied by the defendant. It was so held in AIR 1918 Nagpur 202. The principle of proving a notice by calling

competent person or persons is well settled Any presumption of any correspondence sent through post, having reached the addressee can arise

only when proper posting is provided and, similarly refusal by an addressee can be presumed, when an endorsement to that effect by the postal

peon is proved by calling him, or some ore to prove his handwriting.

(20) For all these reasons it must be held that there was no notice served on the appellant to quit the shop.

(21) The learned counsel appearing for the respondent, has however: raised a point that no notice was necessary to be served on the defendant, to

quit the shop, with in the meaning of Section 106 of the P.T, Act. It was urged that the provision 106 of the P. T Act, has no application since after

the introduction of the Act, giving certain protections to the tenants in respect of their premises, the defendant became a statutory tenant after the

period of his tenancy expired in September, 1960,

(22) In support of this contention he has relied upon a decision of the Supreme . Court in Ganga Dutt Muraka Vs. Kartik Chandra Dass and

others AIR 1961 SC 1067. In that case the contractual tenancy was determined by efflux of time on 1561967 and ever since the tenant had

continued in possession of the premises without any fresh contract of the tenancy. The tenant continued in possession by virtue of the protection

afforded in certain Rent Control Legislation. Interpretting Section 116 of the Transfer of Property Act it was held that:

''Where a contractual tenancy to which the rent control legislation applies has expired by efflux of time or by determination by notice to quit and the

tenant continues in possession of the premises by virtue of statutory protection, acceptance of rent from the tenant by the landlord after the

expiration or determination of the contractual tenancy will not afford ground for holding that the landlord has assented to a new contractual

tenancy.'1

(23) It was also held in that case that:

Apart from an express contract, conduct of the parties may undoubtedly justify an inference that determination of the contractural tenancy, the

landlord had entered into a fresh contract with the tenant, but whether the conduct justifies such an inference must always depend upon the facts of

each case.

(24) In short, the ratio dicendi of the case was that because the tenant failed to prove that he was holding overt his tenancy within the meaning of

Section 116 of the T.P. Act, no notice under Section 106 of the Act was necessary.

(25) Reliance has been placed on behalf of the plaintifflandlord also on a Division Bench of this court in Baga Begum and others Vs. Abdul Ahad

Khan and others reported in 1968 Jammu and Kashmir, 58, to say that no notice is necessary, but in that case, no rent was accepted by the

landlord after the tenancy expired by efflux of time.

(26) The crux of the question, however, is whether in the circumstances of the present case, the tenant defendant can be deemed' to have been

holding over the tenancy within the meaning of Section 116 of the Transfer of property Act after the tenancy was determined on the expiry of the

covenanted period of 11 months from commencement of the tenancy from 3rd September, 1959. It is not disputed that the tenant continued in

possession of the shop on the same terms till the date of the suit, and the plaintiff landlord went on accepting the same rent from him. The plaintiff

unlike the case of Ganga Dutt Murarka, never cried to obtain possession of the shop. In Ganga Dutt Murarka's case the landlord had made atleast

two attempts by service of notice to quit, but the tenant could not be ejected because of the protection afforded under the Rent Control

Legislation: In the present case, it cannot be said that the tenancy was being continued only by the protection of the Rent Legislation, though, he

has had the protection of the Rent control Legislation as well.

(27) The lease deed of the tenant defendant provides for one month's notice to vacate, and if the defendant is found to have been holding over his

tenancy he is entitled to notice under the lease as well.

(28) On behalf of the defendant reliance has been placed upon the following cases.

Bhaiya Punjalal Bhagwanddin V. Dave Bhagwacprasad Prabhtprasad and others reported in 1993.S C. page 120.

Mangilal V. Sugan Chand Rathi (deceased) and after him, his heirs and legal representatives and other: reported in 1965 C S. 101.

Manujendra Dutt Vs Purnedu Prasad Roy Chowdhury and others, reported in 1967 S C page 1419.

Niranjan Pal and another V. Chaitanyalal Ghosh and another reported in AIR 1964 Patna

(29) Referring to the provisions of Section 12 of the Rent Control Legislation in case of Bhaiya Punjalal, it has been pointed out that the provision

of the Rent Control ""will operate against the landlord after the determination of the tenancy by any of the modes referred to in S. 111 of the

Transfer of the property Act.......Where a tenant is in possession under S. 12, if his tenancy has not been determined already. It follows that

whenever a tenant acts in a way which would remove the bar on the landlord's right to evict him, it is necessary for the landlord to serve him with a

notice determining his tenancy and also serve him with a notice under subsec (2) of Section 12 of the Act.

(30) In this State, however, the Rent Control Legislation in question have made no provision for service of any notice for the determination of the

tenancy either than the conditions which have been laid crown for eviction of the tenant under Section 11, but as will appear from the decision in

the above case of Bhaiya Punjilal, a notice under Section 106 of the T.P. Act is necessary, if the contractual tenancy continued in as it must be held

to have continued in the present case.

(31) In the case of Mangilal, the landlord had filed the Suit for eviction of the tenant on the ground of personal necessity amongst others as

provided in Section 4 of the M. P. Accommodation Control Act and it was held by the Supreme Court.

The provisions of S. 4 of the Accommodation Act are in addition to those of the Transfer of property Act and that before a tenant can be evicted

by a landlord, he. must comply both with the provisions of S. 106 of the Transfer of property Act and those of S. 4 of the Accommodation Act.

(32) It was further held referring to notice under Section 106 of the T. P. Act, that :

Such a notice is essential for bringing to an end the relationship of landlord and tenant. Unless the relationship is validly 'terminated the landlord

does not get the right to obtain possession of the premises by evicting the tenant.

(33) It has further been explained in para 8 of the judgment : .

The Character of the tenancy as one from month to month remains but to it is added a condition that the unfettered right to terminate the tenancy

conferred by S. 106 will be exercisable only, if one of the grounds set out in S. 4 of the Accommodation Act is shown to exist.

(34) The view taken in the case of Mangilal was repealed in the case of Manujendra Dutt with an observation that the provision of Rent Control

Legislation ''where in addition to that of the T. P. Act and therefore before a tenant could be evicted by a landlord he must comply with both the

provisions of Section 106 of the Transfer of property Act and those of Section 4."" In that case it was also made clear. It is well settled that

statutory tenancy normally arises when a tenant under a lease holds over, that is, he remains in possession after the expiry or determination of the

contractual tenancy. A statutory tenancy therefore comes into existence where a contractual tenant retains possession after the contract has been

determined.

(35) The majority view of the Full Bench in Patna case was similar that a landlord cannot maintain an action for eviction of a tenant under Sec. 11

of the Bihar Buildings Control Act unless the lease was determined in accordance with the methods provided by Section 111 of the TP Act.

(36) Rent control legislations, referred to in cases mentioned above, were similar to the provision of Section 11 of our Act. It would appear that

the provision of Section 11 of the Act is in no way inconsistent or repugnant to the relevant provisions of the TP Act, providing for the

determination of a monthly tenancy, but for the Rent Control Legislation a landlord could terminate a tenancy by giving a requisite notice to the

tenant. Now under the Rent Control Legislation, a further protection is given to the tenant providing conditions for determining a tenancy. The

conditions in the two Acts are not mutually derogatory, complimentary and supplementary of each other. The conditions of both have to be

satisfied The statutory tenancy does not wipe off the privileges accruing to a tenant under his contractual tenancy, but it gives an added protection

to the tenant. Both the requirements, therefore, have, to be fulfilled by a landlord before he can eject a tenant.

(37) I have shown above that there was no notice served on the defendant as required under Section 106 of the TP Act. Hence the suit is

incompetent and must be dismissed.

(33) In the result, the appeal is allowed with costs. The Judgment and decree of the learned court of appeal below are set aside and those of the

learned trial court dismissing the suit isrestored, In another words, the suit is dismissed.