Patna High Court
Brijendra Kumar Sinha vs Akhileshwar Prasad And Ors. on 21 May, 1991
Equivalent citations: 1992(1)BLJR165
JUDGMENT S.B. Sanyal, J.
1. This is a defendant's second appeal arising out of a suit for eviction and recovery of possession of a piece and parcel of land measuring 2580 square feet, situate in Mauza Prithivipur within the limits of Patna Municipal Corporation and to restore vacant possession of the land to the plaintiffs after removal of structures standing thereupon.
2. The trial Court dismissed the suit on three grounds; (a) the lessor could not have conferred title on the plaintiffs to enforce the been of lease executed by her in favour of the defendent-appellant by virue of a deed of relinquishment, (b) the lease is not for a fixed period, but a permanent lease ; and (c) the suit was barred by estoppel in view of the assurance given by the time of construction of pucca structures upon the disputed land.
3. The plaintiffs appealed against the judgment and decree of the trial Court, The lower appellate Court held that the lease was for a fixed period and it was determined in the mode prescribed under Section 111 of the Transfer of Property Act, 1882, and the landlord can exercise the right of eviction. It also held that pursuant to the deed of relinquishment by the lessor in favour of the plaintiffs and the rent having been paid by the defendant-appellant and accepted by the plaintiffs, the former cannot challenge the title of the latter with respect to the suit land. Further, on interpretetion of paragraph 9 of the deed of lease (Ext. 1) which reads:
That the term 'Lessor' and 'Lestee' means and includes her/his respective heirs, successors, legal representatives and assigns.
It was contended that the plaintiffs being the sons of the lessor, can enforce the deed of lease in the lifetime of their mother Sint. Binda Devi, the lessor. It further held that in view of the terms in the deed of lease, the question of estoppel by assurance does not arise, even though the lessor has constructed pucca structures with knowledge or without interference by the lessor did not import a permanent lease or the doctrine of estoppel by acquiescence. With above observation, the judgment of the trial Court was set aside and the plaintiffs' suit was decreed with costs, with further direction to give vacant possession of the suit premises within sixty days.
4. The High Court, at the time of hearing this appeal under Order XLI, Rule 11 of the Code of Civil Procedure farmed the substantial question of law is the following terms on 31-10-1990:
One of the substantial question of law involved in this second appeal is as to whether a legal notice was served on the appellants before institution of the suit in question to which it appears that the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982, do not apply?
FACTS
5. Shrimati Binda Devi defendant second set, mother of the plaintiffs 1 and 2, executed a deed of lease for a vacant plot of land, as stated in the Schedule of the plaint, for a period of ten years from 1st May, 1970, and ending on the 30th April, 1980, in favour of the defendant-appellant on an annual rental of Rs. 1,800 to set up a firm known as M/s. Grand Auto Service and Repairing Shop. The lease-deed was duly registered on 11-5-1970. It is said that Shrimati Binda Devi, the lessor, relinquished the lease-hold premises In favour of the two plaintiffs by a registered deed on 28-10-1971 (Ext. 2) and notice thereof was served on the lessee. On expiration of the lease on 30th of April, 1980, a notice under registered cover was sent to the defendant-appellant on 22-3-1980 (Ext. 3) requesting the defendant-appellant to vacate the suit permises after the expiry of 30th April, 1980, Ext. 3/5 shows that as the notice could not be served, the plaintffs again sent a notice on 21-4-1980, demanding possession after removal of the structures on expiry of 30th April, 1980, but this notice also was returned as "addressee not met". It has been pleaded that since the lease was for a fixed period, on expiry of 30th April, 1980, the defendant-appellant is in illegal possession of the premises in question and, therefore, the defendant-appellant is liable to be evicted. On this pleading, a decree for eviction of the defendant-appellant was sought after removal of the structures standing upon the vacant land.
6. The defendant appellant pleaded that even though he had been inducted on the suit premises on the basis of a registered deed of lease (Ext. 1) for a period of ten years for manufacturing purpose and to instal machines and ramps and build construction for repairing and servicing heavy vehicles. After taking lease from the Industry Department, defendant No. 2, Mosst. Bindia Devi permitted the appellant the construction of pucca structures with assurance that the defendant-appellant will not be disturbed so long the lessee keeps on paying the rent and monthly taxes regularly. The defendant-appellant never accepted the plaintiffs as the owner on any occasion, even though the monthly rent was paid by the defendant-appellant to the plaintiffs. According to the defendant-appellant, the plaintiffs have no locus standi to maintain the suit nor any cause of action arose and the deed of relinquishment executed in favour of the plaintiffs did not confer any right, title and interest over the lease-hold property and/or lessees since the same cannot be treated to be a deed of transfer inasmuch as the deed of relinquishment (Ext. 2) cannot be treated as a deed of transfer. It has also been pleaded that the notices issued are invalid and did not sub-serve the requirement of Section 106 of the Transfer of Property Act.
7. Mr. Sukumar Sinha appearing on behalf of the appellant at the very outset contended that in this appeal he would raise two substantial questions of law; one of notice already formulated, and the other that the plaintiffs have no right to enforce the lease on the strenght of the deed of relinquishment, He submitted that this Court while admitting this appeal has impliedly given him leave to do so, inasmuch as the opening words of the order dated 31-10-1990 passed by this Court are "One of the substantial question of law involved", which postulates involvement of other substantial questions of law as well. Mr. Dwivedi, appearing on behalf of the respondents, relying on a decision of this Court in Zafar Alam v. Md. Nizam and Ors. 1986 PLJR 333 submitted that the present appeal should be heard only on the question formulated, and not on other question. It is true, ordinarily appeal has to be confined on the question of law formulated, but Section 100(5) of the Code of Civil Procedure does not take away the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated, if the Court is satisfied that the case involves such question. In the instant case, the Court while admitting the appeal did realise involvement of more than one substantial question of law and it was left to the Court hearing the appeal to appraise and formulate the point for disposal of the appeal.
8. I am satisfied that on the facts of this case, another substantial question of law which has been urged and argued at length by both the parties is, whether the plaintiffs have locus standi to institute the suit as lessor by virtue of the deed of relinquishment executed by defendant No. 2 in their favour and a decree of eviction can follow.
9. So far as the first point of absence of notice under Section 106 of the Transfer of Property Act is concerned, on perusal of the deed of registered lease, it is manitest that in is a fixed term lease. It is also clear that it was for a manufacturing purpose. The trial Court was not at all justified in varying the terms of the lease by resort to oral evidence and alleged conduct of the lessor. The lease terms being for a fixed period, the lease has been determined under Section 111(a) of the Transfer of Property Act by efflux of the time limited by the deed of lease. The consequence of determination of the lease by efflux of time is not far to seek and the statute provides for the same. Section 108(m) of the Transfer of Property Act provides for the same, i.e., on the termination of the lease, the lessee must restore the property in good condition as it was at the time when he was put in possession. I do not find substance in the argument of Mr. Sinha that the lease deed having not provided for restoration of possession on expiration of the term of the lease, either the lease term is automatically extended and/or the liability to restore possession is acquiesced.
10. There are different modes of determination of lease as also the duration of the term of notice Section 111 of the Transfer of Property Act provides various modes, which include also a notice under Section 106, as would be evident from the wordings of Section 111(h). Section 108 speaks about righ and liabilities of the lessor and lessee both during the period of continuance of the lease as also on its expiration. In a fixed term period of lease, the notice to quit is inbuilt, that is, the day when the lease expires and no notice under Section l08 of the Transfer of Property Act is required and the duty of the lessee is to restore possession as contemplated under Section 108(m). The view taken by me is in consonance with the law laid down by the Supreme Court in the case of Pooran Chand v. Moti Lal and Ors. and Smt. Shanni Devi v. Amal Kumar Banerjee AIR 1981 SC 1550.
11. I would like to state here that both parties agree that the Bihar Buildings (Lease, Rent and Eviction) Control Act is not applicable to the facts of the present case and the case is governed under the Transfer of Property Act, since, what was leased out was a vacant plot of land. I may further point out that notices (Exts. 3 and 5 series) served for determination of the lease do not fulfil the requirement of Section 106 of the Transfer of Property Act I further hold that the averment made in paragraphs 7 and 8 of the lease-deed (Ext. 1) is not a contract in lieu of notice under Section 106 of the Transfer of Property Act as it relates to determination of the lease for breach of the conditions of the terms of the lease during the currency of the lease. In the instant case, however, as held earlier, there is no need of any notice under Section 106 of the Transfer of Property Act because the determination of the lease is by efflux of the time limited by the lease-deed.
12. The deed of relinquishment has been marked as Ext. 2. In this deed, there is no whisper about the present lease. It simply avers that the lease-hold property is actuality belonged to the lessor's son, the plaintiff. The deed of relinquishment has been executed on non-judicial stamp of Rs. 12.00. It is now well-settled by catena of decisions that a deed of surrender or relinquishment cannot affect the title of the releasor in favour of the releasee. There is no extinguishment of the title of the owner of the property, not there could be any transfer of title from one person to the other by resort to the execution of a deed of release See : Mossomat Samrathi Devi v. Parsuram and Ors. and Indrasan Prasad Singh and Anr. v. Raghubans Rout and Ors. 1957 BLJR 373. Further, under the Benatni Transaction Prohibition Act (Act 45 of 1988), the plaintiff cannot claim title) on the basis that his mother, namely, the lessor was ostensible owner of the property, but the property really belonged to him. In the case of Mithilesh Kumar and Anr. v. Prem Behari Khare , it was held that Act 45 of 1988 will apply to pending appeal as well because it is a prohibitory legislation and will apply both where right is sought to be established as well as where right is resisted on the ground of Bsnatni. It is, therefore, manifest that the plaintiff is debarred from contending that the real title vests in him and he is the real lessor and his mother was an ostensible owner of the property and a mere name lender who executed the deed of lease in favour of the defendant appellant.
13. The Court of appeal has approached this question in two ways: (a) the defendant having paid rent to the plaintiffs and the lessor having intimated the lessee about the deed of relinquishment, it will be deemed that the defendant has attorned to the plaintiffs as their tenant under the lease, and (b) the averments in paragraph 9 of the deed of lease (Ext. 1) include plaintiff as a lessor, which reads:
That the term 'Lessor' and 'Lessee' means and includes her/his respective heirs, successors, legal representatives and assigns.
14. In my opinion, the Court below has completely misdirected itself in law in answering this question. Firstly because an attronment is only legal and valid when the lessor transfers the property leased or any part of his or her interest in the lease-hold property. Section 109 of the Transfer of Property Act postulates an attornment where the lessor transfers the property leased. Similarly, reliance on paragraph 9 of the lease-deed (Ext. 1) is also misplaced and misconceived merely because the word "lessor" includes heirs, successors, legal representatives and assigns. It is manifest that the son of the lessor is not entitled to enforce the terms of the lease during the lifetime of the lessor. The provision is for an eventuality on amongst others, where the lessor or lessee dies or have parted with the property. Mr. Dwivedi, however, tried to submit that the deed of relinquishment (Ext. 2) may be treated as a deed of assignment of the lease, but unfortunately for him, there is no whisper of the deed of lease or even reference to the lessee in the said document, so much so, even on liberal construction of the deed of relinquishment (Ext. 2), an assignment of the lease cannot be culled out I, therefore, Sad that the second point raised by Mr. Sinha is not only a substantial question of law, but there is substance in his submission as well.
15. For the view that I have taken, the suit to enforce the lease was not maintainable at the instance of the plaintiffs, the lessor being alive. The appeal for the reasons aforesaid succeeds and the judgment and decree of the Court of appeal below is set aside and that of the trial Court is restored. There will be no order as to costs.