Sheo Ram vs Rameshwarlal and another

Nigam, J.C.

Rameshwarlal and another filed Civil Suit No. 1109 of 1949 against Sheo Ram claiming a decree for Rs. 320/- on account of arrear of rent and also a decree for ejectment. The suit was contested and the learned Second Additional Subordinate Judge, Aimer, decreed the suit both for arrears of rent and for ejectment. The defendant appealed to the District Judge. The appeal was dismissed by the learned District Judge and now the defendant has come up in second appeal. I have heard the learned counsel for the parties.

The plaintiff''s case was that defendant was their tenant at Rs. 20/- per month and that a sum of Rs. 320/- on account of rent was due for the period July 1948 to October 1949 which had not been paid despite demand and a reminder. The plaintiffs also claimed that they required the house for their bona fide personal use and that the defendant was liable to ejectment for nonpayment of rent. The defendant alleged that he was in possession of the property not as tenant but as owner in pursuance of an agreement of sale in his favour and that he had received no notice nor had refused any such notice. The defendant pleaded that on the plaintiffs'' insistence, he had occupied the house in 1943 free of rent and kept his poultry there, but occupied it personally from November, 1944. He commenced paying rent of the house from July 1945. The defendant wanted to vacate the suit premises when the plaintiffs agreed to sell the house to the defendant for Rs. 10,000/-, out of which Rs. 8050/-had been paid to the plaintiffs. It was suggested that the suit was filed in order to back out the agreement to sell.

The first question for my consideration in this appeal is whether the relationship of landlord and tenant existed between the parties. I have considered the case on merits as it is urged by the learned counsel for the appellant that the finding of fact recorded by the learned District Judge is vitiated inasmuch as he overlooked and, ignored certain evidence.

The appellant''s case is that he is in possession since 23-10-1946 in pursuance of an oral agreement between the parties for the sale of the house which is evidenced by receipt Ex. A for a sum of Rs. 2,900/- which was paid as an advance. The learned District Judge did not admit Ex. A in evidence. He was of opinion that it was an agreement which should have been engrossed on a stamp of -/8/- and was not a receipt which could have been executed on -/1/- revenue stamp. The contention of the learned counsel for the appellant is that this view is incorrect and that Ex. A is actually a receipt. The learned counsel has referred me to the last sentence of the receipt which is an acknowledgment of money received as earnest money.

I am, however, unable to agree with the learned counsel. In order to determine the character of the document, the whole document has to be looked at and not merely one part of it. There is some disagreement as to the precise meaning of the statements made in this document. But there can be no disagreement that the document does mention several other things. It clearly mentions that the house is to be sold for Rs. 10,000''-. It also mentions the payment of Rs. 2900/- through two cheques. It further states that the balance of the money may be paid within three years at the convenience of the appellant and there is an undertaking that a registered sale-deed would be executed. There is also the statement that the registration expenses will have to be borne by the appellant. There is also reference to the fact that the appellant is already in possession of the house.

The learned counsel for the appellant has referred me to -- '' 1952 AMLJ 57 (A)''. In that case, the document under consideration was held to be a receipt. The document stated that one house has been sold for Rs. 8,000/- out of which after deducting the sum of Rs. 6562/13/- payable, the balance of Rs. 1337/3/- had been received. My learned predecessor held that that document was a receipt. I have already pointed out above that Ex. A contains many particulars which should find mention only in an agreement to sell. I am, therefore, of opinion that having regard to all the contents of the document, Ex. A must be held to be an agreement to sell and not merely a receipt for the sum of Rs. 2900/- and it, therefore, should have been scribed on a stamp of Re. -/8/-. I may here point out that the defendant throughout pleaded that Ex. A was an agreement to sell. This was his case in the written statement and also in his statement before the trial court. He stated then gave him a cheque for Rs. 2500/-and an agreement for sale was got executed showing the earnest money as Rs. 2,900/-". I am therefore, of opinion that the learned District Judge rightly excluded Ex. A from consideration.

5-9. (The Judicial Commissioner after examining the other evidence stated :). Considering the evidence as a whole, I do not find sufficient evidence in support of the defendant''s contention that there was an agreement of sale and that the sum of Rs. 8050/- was paid as part price. It is admitted by the defendant that prior to 23-10-1946 he was the tenant of the house in suit. As such, even though there is contradiction in the plaintiffs'' evidence as to the date of the commencement of the tenancy, it must be held that the defendant was and still is the plaintiffs'' tenant of the house in suit.

The next question for my consideration is whether the plaintiffs were entitled to a decree for ejectment. The question whether the plaintiffs required the house for their bona fide personal use was decided against them. The plaintiffs would be entitled to a decree for ejectment only if they proved that the defendant had failed to pay up the arrears of rent despite service of notice. The plaintiff''s case is that the demand was made through notice Ex. 5. This notice never reached the defendant and a note on the envelope shows that this registered notice was refused on 8-9-1949. The learned counsel for the appellant has urged that no postal peon was examined to prove the tender of the notice to the defendant and its refusal by him. On this point I have been referred to -- ''Indar v. Mt. Rao'', 11 Ind Cas 35 (Lah) (B) and -- ''Louis Dreyfus & Co. v. Chi-mandas Vishindas & Co.'', AIR 1919 Sind 66 (2) (C). Both these rulings, however, concern notices and summons other than notices under S. 106 of the Transfer of Property Act. The learned counsel for the appellant has referred me to -- ''Gobinda Chandra v. Dwarka Nath'', AIR 1915 Cal 313 (p) and -- ''Raja Udram v. Khanbeg Amirbeg'', AIR 1918 Nag 202 (E). I am of opinion that evidence indicating the actual tender of the letter to the defendant and its refusal by him should have been adduced. As the letter was actually returned to the sender, there could be no presumption of its having been received by the addressee. Accordingly, I am of opinion that the defendant was not liable to ejectment.

No other point has been pressed before me.

I, therefore, uphold the decree for arrears of rent, but direct that the suit for ejectment be dismissed. This appeal is accepted in part. The amount deposited by the defendant towards arrears of rent and current rent would be payable to the plaintiffs. In view of the fact, that parties have succeeded in part, I direct that they will bear their own costs throughout.