Andhra HC (Pre-Telangana)
Farahat Ali (Died) Per L.Rs. vs Sajid Ali And Ors. on 1 October, 1997
Equivalent citations: 1998(1)ALT521
JUDGMENT S.V. Maruthi, J.
1. Second Appeal No. 290 of 1993 is filed against the Judgment in A.S. No. 14 of 1991. A.S. No. 14 of 1991 is filed against O.S. No. 952 of 1982. O.S. No. 952 of 1982 is filed by the plaintiff one Md. Sajid Ali for eviction of the defendant from the plaint schedule property by dispossessing him and for recovery of rents of Rs. 1800/- for a period of three years commencing from 1-11-1979 to the end of November, 1982 and for future rent at the rate of Rs. 50/- per month from 1-12-1982 till the actual delivery of the suit site to the plaintiff with costs. The learned District Munsif dismissed the suit with costs. On appeal, the learned I Additional District Judge, Karimnagar, decreed the suit and set aside the judgment of the learned District Munsif. Aggrieved by the same, Second Appeal No. 290 of 1993 is filed.
2. Second Appeal No. 291 of 1993 is filed against the judgment in A.S. No. 29 of 1990. A.S. No. 29 of 1990 is filed against the judgment in O.S. No. 1203 of 1980. The plaintiff in O.S. No. 952 of 1982 in the first defendant in O.S. No. 1203 of 1980 and the defendant in O.S. No. 952 of 1982 is the plaintiff in O.S. No. 1203 of 1980. O.S. No. 1203 of 1980 is filed for perpetual injunction restraining the defendants from interfering with the rights, possession and enjoyment of the plaintiff over the suit properties and from pulling down or demolishing the suit properties described in the plaint schedule.
3. The brief averments in O.S. No. 952 of 1982 are as follows:-
The plaintiff is the owner of the plaint schedule land shown in red colour which is part and parcel of the ancestral house gifted by the father of the plaintiff in his favour under a registered gift deed dt. 21-6-1954, The defendant had taken the land shown in red colour on lease for a period of ten months commencing from 1-8-1977 to the end of June, 1978 on a monthly rent of Rs. 50/- and the lease deed was executed on 2-9-1977. The lease period has expired and the tenancy was terminated by efflux of time by the end of June, 1978. However, the defendant is holding over the suit land beyond the period of lease. The defendant has managed to get patta certificate issued for the suit site and filed a suit in O.S. No. 1203 of 1980 for injunction against the plaintiff. The patta certificate was bogus and the Tahsildar informed the plaintiff on a copy of application being made to him that no such patta certificate or assignment is in existence in file No. A5/17898/79,dt.29-12-1980. The plaintiff preferred an appeal to the Joint Collector who had observed that no such patta certificate was issued. In view of the denial of title of the plaintiff over the suit site and in view of the fact that the lease is terminated and the defendant is liable to be evicted and the defendant is due to pay the rent of the suit site to the plaintiff from 1-7-1979 upto the date of judgment in order to bring the suit for recovery of rent within limitation, the plaintiff is claiming rent from 1-11-1979 to the end of November, 1982 at Rs. 50/- per month in total Rs. 1800/-. The defendants have filed their written statement. The defendants denied that the plaintiff is the owner of the suit land and that the land is not part and parcel of ancestral house gifted to the plaintiff by his father and the father of the plaintiff had no rights in the suit land and had no rights to gift it away to the plaintiff. The defendant is the owner and possessor of the suit land. No notice terminating the lease of the suit land to the defendant had been issued by the plaintiff as per law. The plaintiff is not entitled to evict the defendant and is not entitled to recover any rents from him.
4. The plaintiff in support of his case examined P.Ws.1 to 3 and the first defendant examined himself as D.W.I. The plaintiff marked Exs. A-1 to A-3 and no documentary evidence is marked for the defendant. On the basis of pleadings and the evidence, both oral and documentary, the learned District Munsif held that the suit land is not part and parcel of the ancestral house which was gifted by the father of the plaintiff in his favour under a registered gift deed (Ex.A-1) dt. 21-6-1954 and consequently, he is not entitled to any decree for eviction from the suit site and also not entitled to recover Rs. 1800/- being rents prayed for. He also held that the defendant is the owner and possessor of the suit land. Accordingly, he dismissed the suit of the plaintiff.
5. On appeal, the learned I Additional District Judge held that relying on Ex.A-1, gift deed and the pleadings of the plaintiff that the suit schedule property is part of the land covered by Ex.A-1, gift deed situated towards extreme eastern side abutting to western road and that under Ex.A-1 the appellant got title to the suit property and he opined that the finding of the learned District Munsif that the appellant failed to prove that he got suit schedule property through Ex.A-1, gift deed, is not correct. On the question of tenancy between the appellant and defendant he held that relying on the evidence of P.Ws.2 and 3, attestors of Ex.A-2, lease deed, that the appellant executed a lease deed in favour of the respondent in respect of the plaint schedule property. Therefore, the appellant leased out the suit land to the respondent and the possession of the respondent is that of a tenant in respect of plaint schedule property. He also found that the respondent in the appeal has failed to establish that the land is a Government poramboke land. Since the respondent in A.S. No. 29 of 1990 is the tenant and since the lease was for a specific period of ten moths from 1-8-1977, and the lease expired by efflux of time and therefore there is no need to terminate the tenancy by a notice. He also observed that the status of the respondent in the appeal is that of trespasser and therefore no notice is necessary under the Transfer of Property Act (for short 'the Act') for eviction and holding as above, he decreed the suit of the plaintiff. Aggrieved by the same, the Second Appeal No. 290 of 1993 is filed by the defendant.
6. The suit O.S. No. 1203 of 1980 is filed, as pointed out earlier, for an injunction and the averments made in the plaint and written statement are more or less similar to the averments made in the plaint and written statement filed in O.S. No. 952 of 1982. Therefore, the pleadings are not separately referred in this Second Appeal No. 291 of 1993. The gist of the averments in the plaint is that the plaintiff is the owner of the plaint schedule property and that a patta was given to him and that the land was assigned to him by the Tahsildar vide certificate No.A5/17898/79 dt. 15-8-1980 and the plaintiff is carrying on the fire wood business in the land described as schedule-B under licence issued by the Municipality and the plaintiff is paying tax for the suit properties. The plaintiff has got electric supply to the suit properties and paying the consumption charges. Defendant Nos. 1 to 3 have tried to occupy the suit property and removed some of the tiles of the suit house on 21-12-1980 and hence the suit. The defendants filed a written statement contending that the suit schedule property is part and parcel of the backyard of the house bearing No. 2-9-8 situated a Mukarampura, Karimnagar and that the plaint schedule land taken on lease and agreed to pay Rs. 50/- per month with effect from 1-8-1977 to the end of June, 1978 for a period often months. The other averments are similar or more or less similar to the averments made in the plaint in OS. No. 952 of 1982.
7. The learned Munsif in view of his finding in O.S. No. 952 of 1982 granted injunction restraining the defendants from interfering with his possession. Aggrieved by the same A.S. No. 14 of 1991 has been filed by the respondent- appellant.
8. The learned I Additional District Judge by a common Judgment in A.S. Nos. 29 of 1990 and 14 of 1991 dismissed the suit O.S. No. 1203 of 1980 on the ground that the appellant in A.S. No. 14 of 1991 is a trespasser and that the respondent is the owner of the property. Aggrieved by the same, the defendant therein filed Second Appeal No. 291 of 1993.
9. I have already referred the findings of the learned I Additional District Judge. According to him, the plaintiff established his title to the property under Ex.A-1, gift deed, executed by the grand-father of the respondent. He also found that, relying on the evidence of P.Ws.2 and 3, attestors of the lease deed, that the status of the appellant is that of a tenant. He also found that the lease is for a specific term, namely, ten months commencing from 1-8-1977 to till the end of June, 1978. This finding of fact based on evidence and I do not see any reason to disturb, as it is supported by evidence.
10. When once the status of the appellant is found to be that of a tenant, and that the tenancy is for a specific period, the tenancy expires by efflux of time by the end of June, 1978, as held by the learned Judge, no notice is necessary before the suit for eviction is filed, as tenancy is expired by efflux of time.
11. The learned Counsel appearing for the appellants contended that the suit is filed for eviction on the ground that the appellants (L.Rs. of the original tenant) are tenants and the lease commenced from 1-8-1977 and even after the expiry of the lease, i.e. by the end of June, 1978, the appellants were allowed to continue in possession and therefore the status of the appellants is that of tenants holding over and hence it is obligatory under Section 106 of the Transfer of Property Act to issue a notice terminating the tenancy, in the absence of a notice terminating tenancy the suit is liable to be dismissed. Hence, the learned I Additional District Judge is not right in decreeing the suit of the plaintiff (O.S. No. 952/82). In support of his contention, he relied on Satish Chand v. Govardhan Das, and Golkonda Real Estate and Financial Corporation v. CR.S.R. Somayajulu, .
12. In the alternative, the learned Counsel submitted that the plaintiff therein is claiming recovery of possession on the ground that there is denial of title and in the case of denial of title under Section 111 (g) of the Act, it is obligatory to give a notice before terminating the tenancy. Since there is no notice terminating the tenancy, the suit is liable to be dismissed.
13. On the other hand, the learned Counsel appearing for the respondent submitted that it is a case where the lease is for a specific period and on the expiry of the said period, by efflux of time, it is not necessary to issue a notice and therefore the suit is maintainable even without notice. In support of his contention, he relied on two judgments of the Supreme Court in Shanti Devi v. Amal Kumar, AIR 1981 SC 1550 and M. Subba Rao v. P.V.K. Krishna Rao, .
14. I have already referred to the finding of the lower Court that the lease is for a specific period of ten months and on expiry of the period of lease the tenancy comes to an end by efflux of time and it is not necessary to give notice before terminating the tenancy.
15. The argument of the learned Counsel for the appellants is that notwithstanding the expiry of lease by efflux of time since he continued in possession, his status is that of a tenant holding over and therefore it is mandatory that a notice under Section 106 of the Act has to be issued. The contention of the learned Counsel cannot be sustained for the simple reason that in Shanti Devi's case the principle was settled by the Supreme Court. It was a case where the lease was for a specific period of ten years and after expiry of lease without any notice a suit was filed for recovery of possession. The Courts below proceeded on the assumption that there was no valid quit notice and, therefore, the plaintiff's suit for ejectment was not maintainable. The matter went up to the Supreme Court, and it held:
"Where a lease is for a definite term it expires by efflux of time by reason of Section 111 (a). Hence, service of a notice under Section 106 is not necessary for determination of lease.
The parties could not by their pleadings alter the intrinsic character of the lease or bring about a change of the rights and obligations flowing therefrom. The lease was a lease for a denifite term and, therefore, expired by efflux of time by reason of Section 111 (a) of the Transfer of Property Act. That being so, the service of a notice under Section 106 of the Transfer of Property Act was not necessary."
It is further held, "Undoubtedly, Section 111 (a) of the Transfer of Property Act, which deals with determination of a lease by efflux of time, has to be read with Section 116 of the Act. But in the present case there is no allegation by the defendant that he was a tenant holding over within the meaning of Section 116 of the Act. Now, in order that a lease should be deemed to have been continued in favour of the defendant it was necessary to show that he remained in possession of the premises demised after the determination of the lease granted to him and the plaintiff had expressly or by necessary implication assented to his continued possession. There being no such plea of holding over, the matter falls to be governed by Section 111 (a) of the Transfer of Property Act. If the period of lease had expired on January 10, 1970, the relationship of landlord and tenant ceased and the defendant became a trespasser. In the present case, the respondent who was the defendant in Ground No. 6 of his memorandum of appeal before the High Court urged that the Courts below should have held on the basis of the plaintiffs case read with the lease deed that the lease would expire on January, 10, 1970. There was therefore, no question of service of any notice under Section 106 of the Transfer of Property Act."
16. From the above it is clear that in a case of lease for a specific period the tenancy comes to an end by efflux of time and if the tenant is continuing in possession as a tenant holding over, there should be a specific plea that he is continuing as tenant holding over within the meaning of Section 116 of the Act and therefore, the notice under Section 106 of the Act is necessary. On the basis of the pleadings in both the suits extracted above, it is clear that the appellants have set up the title in the plaint schedule property. They have not taken any plea that they are tenants holding over and therefore a notice under Section 106 of the Act is necessary. It is no doubt true that a sentence is added stating that no notice was issued terminating the tenancy in the written statement. It is true that the respondent stated that the appellant is continuing as a tenant. The fact that the respondent in the plaint has stated that the appellant is continuing as a tenant does not automatically give him the benefit of the rights as tenant holding over. He should approach the Court with a specific plea and there should be an issue on the plea and the appellant should adduce evidence in support of the said plea. Since there is no specific plea, the contention of the learned Counsel that notwithstanding the efflux of time, he is entitled for the status of a tenant holding over, therefore, a notice is necessary cannot be sustained. The Judgment cited by the learned Counsel appearing for the appellants i.e. Satish Chand's case (supra) is distinguishable on facts. That is a case where the lease was granted to the defendant and the rent stipulated was Rs. 311 /- per month. Acting upon the grant, the defendant No, 1 put up a superstructure worth more than rupees one lakh and carried on the business of running a hotel from the demised premises. After the expiry of the period of five years, the parties entered into an agreement to renew the monthly lease for a further period of nine years with effect from June 1, 1971, the terms whereof were reduced to writing in the form of the draft lease agreement Ex. B-2. The said lease deed was not registered. Under Clause 9 of the agreement it is provided that the defendant No. 1 shall restore possession of the demised premises to the plaintiffs' father after removing all the super- structure built upon the land. It is also provided that in the event of failure on the part of the defendant to remove the super-structure, the plaintiffs' father would be entitled for recovery of the possession of the aforesaid part together with mesne profits. The plaintiffs served a notice upon the defendants determining the tenancy on the ground of forfeiture under Section 111 (g) of the Act, complaining of breach of the terms of the lease and a suit was filed for ejectment. The defendants contested the claim of the plaintiffs and pleaded inter alia that they were tenants holding over as tenants from month to month under Section 116 of the Transfer of Property Act and since there had been no determination of the lease by service of a notice under Section 106 of the Act, the suit as framed was not maintainable. Therefore, it was necessary for the plaintiffs to serve a notice under Section 106 of the Act. The said contention was accepted and the suit was held to be not maintainable. As pointed out in the earlier paragraphs there was a specific plea by the defendants in the written statement that the tenancy is a tenancy holding over and therefore a notice under Section 106 of the Act is necessary. As pointed out, the judgment cited above (supra 1) is distinguishable on facts as in the present case the appellants did not set up a specific plea claiming the status of tenant holding over.
17. The next Judgment on which the learned Counsel relied upon is Golkonda Real Estate and Financial Corporation's case (supra 2). It is a case where tenant is holding over after the expiry of the lease, the rents tendered by the tenant subsequent to the quit notice were accepted by the landlord. Under those circumstances, it was held, "The conduct of the appellants-plaintiffs in accepting the rents tendered by the respondent-defendant for the period subsequent to the quit notice without any reservations clearly leads to the inference that they were treating the lease as subsisting and therefore it must be held that they waived the notice and accordingly the Court agrees with the view of the learned Single Judge that the respondent-defendant became a tenant holding over and so a fresh quit notice is a mandatory requirement."
18. However, the above judgment is not applicable to the facts of the present case as there was no acceptance of rents by the landlord from the tenant and on the other hand the suit itself is for recovery of the rents.
19. It is next contended by the learned Counsel for the appellant that since the plea of the respondent that there is denial of title, it is mandatory to issue a notice under Section 106 of the Act, and in the absence of the same the suit is not maintainable. But, it is not necessary to consider this ground as the suit is filed on two grounds, one is for recovery of possession on the ground that there was expiry of tenancy by efflux of time and two, that there was denial of title.
20. If the respondent succeeds on the first ground that there is efflux of time and that the tenancy was terminated consequently, he is entitled for recovery of possession of the property and hence, he need not press the other ground, namely, denial of title.
21. In the result, Second Appeal No. 290 of 1993 is dismissed with costs. As regards Second Appeal No. 291 of 1993, in view of the findings in the Second Appeal No. 290 of 1993 holding that the appellants are the tenants and the respondent is the owner of the property, the appellants are not entitled for any injunction restraining the respondent from interfering with possession. Hence, Second Appeal No. 291 of 1993 is also dismissed with costs.