Sunder Lal vs Yaqoob Ali

V.K. Mehrotra, J.—This appeal is by the Plaintiff'' who unsuccessfully sued the Defendant for ejectment from the premises in dispute. The suit had been brought after serving a notice purporting to be u/s 3(1)(a) of U.P. Act No. III of 1947 read with Section 106 of the Transfer of Property Act. It was alleged in the notice that there was arrears due against the Defendant and the same should be paid within a period of one month to the Appellant else after remaining in possession for 30 days after the service of the notice, the shop may be vacated and possession thereof handed over to the Plaintiff. The notice was type-written in which the word "Aur apani kirayedari ko khatma samjhe" were added in ink by hand. Both the courts below have come to the conclusion that these words were an interpolation.

One of the defences put-forward by the Defendant-Respondent was that the notice did not validly terminate the tenancy and he could not, therefore, be ejected. The trial court as also lower appellate court accepted this plea and dismissed the suit giving rise to the present appeal.

Appearing before me on behalf of the Appellant Sri Dhan Prakash has urged that the finding that the hand written words quoted above were interpolated subsequently in the notice is not correct. The finding of the two courts below in this respect is a pure finding of fact which does not call for interference in the second appeal.

The next submission of Sri Dhan Prakash is that even assuming that there are no words in the body of the notice indicating any intention on the part of the Plaintiff-appellant terminating the tenancy of the Defendant-Respondent, yet, inasmuch as. it was mentioned in the body of the notice that it was being given to the Defendant-Respondent in accordance with Section 3(1)(a) of U.P. Act No. III of 1947 and Section 106 of the Transfer of Property Act, it should be presumed that is was a notice which intended to terminate the tenancy of the Respondent. I fail to see any force in this submission. Section 106 of the Transfer of Property Act, in its application to U.P. only lays down that a lease from month to month will be terminable on the part either of the lessor or lessee by thirty days'' notice. It further lays down that every notice under the provision must be in writing signed by or on behalf of the person giving it and sent either by post to the person who is intended to be bound by it or tendered or delivered personally to such party or to one of his family or servants at his residence or else affixed to a conspicuous part of the property. On its language, the provision does not obviate the necessity of terminating the tenancy either in express or implied terms. The mere mention, therefore, of Section 106 of the Transfer of Property Act in the notice would not amount to termination of tenancy.

The decision in the case of Ram Swarup and Others Vs. Brij Nandan Prasad and Another, , upon which reliance has been placed by the learned Counsel for the Appellant is not an authority for the proposition that a mere mention of Section 106 of the Transfer of Property Act in the notice without there being a recital express or implied terminating the tenancy of the person to whom the notice is addressed, is sufficient in law to bring about the termination of tenancy. The learned Single Judge, who decided that case, himself observed that: "the nature and purpose of the notice must be gathered by reading the document as a whole and not from any words read out of context or from any omission to use the formal language of a solicitor". The learned Judge, on interpreting the words used in the notice which was before him in that case, concluded that it validly terminated the tenancy of the Defendant and then observed that the words "legal notice" used therein could only refer to a notice u/s 106 of the Transfer of Property Act.

The notice in the instant case, when read as a whole, does not terminate the tenancy of the Defendant-Respondent expressly or by necessary implication. In my opinion, the courts below were right in dismissing the suit.

The appeal has no merit and is dismissed but without any orders as to costs.