Patna High Court
Abdul Sattar Mian vs Kailash Prasad on 26 July, 1965
Equivalent citations: AIR1966PAT93, AIR 1966 PATNA 93
JUDGMENT Kamla Sahai, J.
1. This appeal by the defendant is directed against a judgment of reversal.
2. Very shortly stated, the plaintiff's case is that he took settlement of holding No. 130A in Mina Bazar of Motihari town from Bettiah Raj, and built a tiled shop on it. On the 1st February, 1954, he let the shop to the defendant for a term of five years on a monthly rental of Rs. 8-8-0 under an unregistered kirayanama (exhibit 8). The period of lease has expired, and besides he gave notice to the defendant to quit. The defendant has also not paid rent for the period from January, 1958, to April, 1959. On these allegations, he prayed for a decree for eviction against the defendant and also for recovery of arrears of rent for the period mentioned above.
3. Briefly stated, the defendant denied the relationship of landlord and tenant. He also denies having executed the Kirayanama (Exhibit 8). His case further is that he took settlement of the holding in question from the Land Reforms Department of the Government of Bihar after the zamindari of Bettiah Raj vested in the Slate and that he built the shop on it.
4. The learned Munsif, who tried the suit dismissed it. The plaintiff's appeal was heard by the 2nd Additional Subordinate Judge of Motihari. He has arrived at the following findings:
(i) The plaintiff inducted the defendant as a tenant on the holding in question on the 1st February, 1954 and there is a relationship of landlord and tenant between them.
(ii) Having been inducted upon the land by the plaintiff, the defendant is estopped from challenging the plaintiff's title.
(iii) The allegation that the defendant took settlement of the holding in question from the State of Bihar is wrong because the Collector of Champaran, by his order dated the 4th February, 1959, definitely disallowed the defendant's prayer for settlement of the holding with him,
(iv) Notices (exhibits 1 dated the 6th April, 1959, and 1(a) dated the 14th February, 1959), given by the plaintiff to the defendant to quit are invalid.
(v) The period of lease having expired, the plaintiff is entitled to a decree for eviction against the defendant, in spite of non-service of a valid notice under Section 106 of the Transfer of Property Act.
(vi) By denying the title of the plaintiff, the defendant has incurred forfeiture under Section 111(g) of the Transfer of Property Act. In view of this ground also the plaintiff is entitled to a decree for eviction against the defendant.
5. On the above findings the learned Subordinate Judge has allowed the appeal, and decreed the suit.
6. In an attempt to challenge findings Nos. (i), (ii) and (iii) as enumerated above, the appellant filed an application in this Court to take the copy of a deed of lease executed by the Collector of Champaran in favour of the General Manager of the Bettiah Raj as additional evidence. For reasons which I have given separately, I have held that the document is irrelevant as its subject-matter has not been shown to be the same as Mina Bazar where the holding in dispute is situated. Mr. A. C. Roy, who has appeared on behalf of the appellant, has not urged any other point against these three findings. They must, therefore, be accepted.
7. Mr. Gupteshwar Prasad, who has appeared on behalf of the plaintiff-respondent, has not challenged finding No. (iv) above, and has not advanced any argument to induce me to hold that the notices (exhibits 1 and 1(a) ) were valid notices. This finding of the learned Subordinate Judge must also, therefore, be accepted.
8. Mr. Roy has challenged findings Nos. (v) and (vi) above, and has argued that the learned Subordinate Judge erred in passing a decree for eviction against the defendant-appellant. In my judgment, there is substance in this point. A Full Bench of this Court has held in Niranjan Pal v. Chaitanyalal Ghosh, AIR 1964 Pat 401 (FB) that the determination of a tenancy is necessary before a landlord can take action under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, for actual eviction of the tenant. It has also been held in that case that the tenancy has to be determined in accordance with Section 111 of the Transfer of Property Act. That section lays down several methods by which a tenancy can be determined. One method is "(a) by efflux of the time limited thereby". The learned Subordinate Judge has expressed the view that, since the lease was for a period of five years and since that period has expired, the lease has terminated by efflux of time. The legal position is not, in my opinion, so simple. Under Section 107 of the Transfer of Property Act, a lease of immoveable property for any terra extending one year has to be made by a registered instrument. The kirayanama (exhibit 8) is, as I have already said, not a registered instrument. It could not, therefore, be admitted in evidence. As has been held by a Full Bench of this Court in Bastacolla Colliery Co. Ltd. v. Bandhu Beldar, AIR 1960 Pat 344 (FB) an unregistered kabuliyat or Kirayanama is not admissible in evidence. It has also been held therein that "the possession of a lessee becomes wrongful from the time of his entry on the basis of a void or invalid lease; but, if he pays rent, which is accepted by the lessor, his possession ceases to be adverse to the lessor, and a relationship of landlord and tenant comes into existence". In so far as the duration of the tenancy is concerned, it has been held in that case that, since the document itself is invalid, the duration can be implied in accordance with Section 106 of the Transfer of Property Act. That section provides that a lease for any purpose other than agricultural or manufacturing purposes is to be deemed to be a lease from month to month which can be terminated by the lessor or the lessee by fifteen days' notice expiring with the end of the month of the tenancy. Thus, the duration in this case cannot be determined on the basis of the period of lease which is given in the kirayanama, which is an inadmissible document, but on the basis of Section 106. That being so, the lease in question in this case cannot be said to have been terminated by efflux of five years' time. It must be held instead to he a case of month to month tenancy which could be terminated by fifteen days' notice expiring with the month. The plaintiff gave two such notices (exhibits 1 and 1(a)); but, as I have already mentioned, they have been held by the learned Subordinate Judge to be invalid.
Mr. Gupteshwar Prasad has argued that the Kirayanama (exhibit 8) can he taken in. evidence, and can be read in this case in view of the provisions of Section 53A of the Transfer of Property Act on the basis of the doctrine of part performance. In my opinion, this argument cannot be accepted. Section 53A refers to a contract entered into by the transferor" by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty"; but there is no such document in this case. The kirayanama does not bear the signature of the lessor or any one on his behalf. It is a unilateral document, and it purports to have been executed only by the defendant. Hence, Section 53A cannot have any application in this case. There is, therefore no escape from the conclusion that the lease in question in this case cannot be held to have been determined under Section 111(a) of the Transfer of Property Act.
9. The next question which I have to examine is whether the lease has terminated under Section 111 (g). That clause provides for determination of a lease by forfeiture. The clause, however, is to the effect that, in the case of forfeiture the lessor or his transferee has to give notice in writing to the lessee of his intention to determine the lease. In the present case, the plaintiff never gave any notice to the defendant, saying that he had incurred forfeiture by denying the title of the plaintiff as his landlord, and he (the plaintiff) intended to determine the lease. That being so, it cannot be held that the lease has been legally terminated by reason of forfeiture.
10. For the reasons which I have given above, I hold that findings Nos. (V) and (VI) of the learned Subordinate Judge are erroneous. The lease in question in this case has not been determined either in accordance with Clause (a) or in accordance with Clause (g) of Section 111. I further hold that the lease has not been legally determined at all. It follows, therefore, that the suit for eviction under Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act is premature.
11. In the result, I hold that the decree passed against the defendant which directs his eviction cannot be upheld, and must be set aside. I allow the appeal, and dismiss the suit in so far as the prayer for the defendant's eviction is concerned.
12. The learned Subordinate Judge has not considered the question whether the plaintiff is entitled to a decree for arrears of rent. That question has to be considered. The appeal is, therefore, sent back to the Subordinate Judge's court for determination of this question in accordance with law.
13. The parties will bear their own costs throughout upto this stage.