Patna High Court
Rambaran Paswan vs Smt. Kalo Dei And Anr. on 14 September, 1973
Equivalent citations: AIR1974PAT333, AIR 1974 PATNA 333
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT S.K. Jha, J.
1. Leave to appeal under Clause 10 of the Letters Patent having been granted by a learned single Judge of this Court, this appeal is directed against the judgment and decree passed by him in Second Appeal No. 413 of 1966. The defendant tenant who is the appellant here was also the appellant in the second appeal aforesaid.
2. The plaintiffs-landlords instituted a suit for eviction against the defendant who was the predecessor-in-interest being the father of the present appellant and who died during the pendency of the second appeal before this Court. The subject-matter of the suit was a small house within the Mokameh Notified Area Committee, with regard to which the plaintiffs-respondents claimed to be the owners and landlords. Their further case was that they had let out the house in question to the appellant's father, the original tenant, on a monthly rental of Rs. 3/- and that he having made a default in payment of two consecutive months' rent and the plaintiffs having required the house in question for their own, personal necessity, a decree should be passed against the defendant. It was further pleaded in paragraph 8 of the plaint that notice determining the tenancy was sent to the defendant on the 27th November, 1961 but the defendant not being inclined to comply with the terms of the notice, the plaintiffs were compelled to institute this suit. Shorn of all details, the main defence, inter alia, was that the suit was not maintainable in view of the non-compliance with the mandatory provisions of Section 106 of the Transfer of Property Act. 1882 (hereinafter to be referred to as the Act), since the time stipulated in the notice (Ext. A) fell short of the time prescribed for such notice determining the tenancy under the provisions of the said Act.
3. The plaintiffs failed before the trial Court mainly on merits. But in appeal before the first appellate Court as well as in the second appeal in this Court before the learned Single Judge, the plaintiffs succeeded and the suit for eviction against the appellant's father and the appellant, respectively, was decreed. In course of the hearing of the second appeal, when the point with regard to the illegality and invalidity of the notice under Section 106 of the Act was raised on behalf of the appellant, the same was repelled by the learned single Judge on the ground that the appellant had denied the relationship of landlord and tenant in his defence in the written statement filed in the suit as well at in his reply to the notice sent to him by the plaintiffs, which reply was Ext. 4, and it was not open to the appellant to raise the plea of illegality of notice, as contemplated by Section 106 of the Act. In so deciding the point against the appellant, the learned, single Judge relied upon a Division Bench decision of this Court in Abdul Rahim v. Md. Azimuddin, AIR 1965 Pat 156.
4. Before dealing with the question of law raised in this appeal, it is necessary for me to state that the observation of the learned single Judge in paragraph 7 of his judgment that-
"in the instant case, by the reply, Ext. 4, the defendant denied the relationship of the landlord and tenant between himself and the plaintiffs and in the written statement, he further disputed the title of the plaintiffs to the bouse in suit."
does not seem to be quite correct. So fan as the first part of the sentence is concerned, we have looked into original exhibit 4 and we find that there is no denial of the relationship of landlord and tenant with regard t" the premises in question in Ext, 4 by the defendant, predecessor-in-interest of the present appellant. Therefore, we have to proceed upon the footing that the denial of relationship of landlord and tenant was for the first time set up in the written statement by way of a defence to the present suit. That being the position, I will now refer to the Division Bench decision on which the learned single Judge has relied to see whether that is of any avail to the present respondents. In the case of Abdul Rahim, the facts were entirely different. There the cause of action pleaded was forfeiture of tenancy under Section 111 (g) of the Act. There was no question of any notice under Section 106 of the Act and the point with regard to the service of notice under Section 111 (g) was raised for the first time in course of argument in the second appeal in that case. In such circumstances, their Lordships held that such a plea was not open to the defendant to be raised at the second appellate stage, and it was further held that it should be all the more necessary as it would cause prejudice to the plaintiff landlord in so far as the necessary facts to be pleaded and proved in that regard had not been so done at their proper time nor had the plaintiff landlord any opportunity of showing that any such defence on facts was not correct. That is how the decision in Abdul Rahim's case was construed by a learned single Judge of this Court in the case of Ramayan Prasad V. Mt. Gulab Kuer, AIR 1967 Jat 35. In a later Division Bench decision in the case of Banarshi Lal v. Jatadhari Das, AIR 1971 Pat 110: Tarkeshwar Nath, J., with whom K. K. Dutta. J., agreed, while considering the case of Abdul Rahim, observed as follows:--
"...... in the case of Abdul Rahim AIR 1965 Pat 156 relief for eviction had been sought for on the ground of forfeiture and the necessary facts indicating forfeiture were slated in the plaint of that suit. As regards the denial by the defendant in the written statement itself about the title of the plaintiff landlord, I took the view that if the title of the landlord had been denied by the tenant in the suit for ejectment, that could not avoid the necessity of the notice under Section 106 of the Transfer of Property Act."
These were the essential distinguishing features. I am, with great respect, in complete agreement with the observation aforesaid in AIR 1971 Pat 110 with regard to the true meaning and purport of the Division Bench decision of this Court in Abdul Rahim's case .
5. In my view, the consensus of judicial decision is this. If a cause of action pleaded in the plaint includes the determination of the tenancy by virtue of a notice under Section 106 of the Act then it is incumbent on the plaintiff landlord to prove legal and valid notice within the meaning of the provisions thereof in case a plea as to validity of the existence of any such notice is raised by way of defence. Another settled principle of law is that if a suit for eviction is based upon a relationship of landlord and tenant between the plaintiff and the defendant, and if there is no averment in the plaint that notice under Section 106 of the Act determining the tenancy has been duly served then the plaint is fit to be rejected outright under the provisions of Order 7, Rule 11 of the Code of Civil Procedure. The present case, however, comes within the first category of cases mentioned above. The pleading with regard to notice under Section 106 of the Act is there. But it is plain that such a notice was not inconsonance with the provisions of that section. And, the learned single Judge has proceeded upon the assumption that such a notice was not in such consonance. Learned lawyer for the respondents has not been able to show to us anything from which an inference can be drawn that the notice (Ext. A) was legal and valid.
6. For the reasons aforesaid, I think, the appellant must succeed. I, 'therefore, allow this Letters Patent appeal, set aside the judgment and decree passed by the learned single Judge of "this court as well as the first appellate court and. restore that of the trial Court. The appellant will be entitled to his cost of this Letters Patent Appeal only.
Untwalia, C.J.
7. I agree.