Orissa High Court
A. Rajeswari vs Brundaban Mohapatra on 2 August, 2002
Equivalent citations: AIR 2003 (NOC) 104 (ORI), 2002 A I H C 3858, (2002) 94 CUT LT 212, (2002) 3 CIVILCOURTC 426, (2003) 2 RECCIVR 14, (2002) 4 CIVLJ 291
Author: L. Mohapatra
Bench: L. Mohapatra
JUDGMENT L. Mohapatra, J.
1. Defendant is the appellant before this Court against a confirming judgment.
2. Plaintiff-respondent filed a suit for eviction of the defendant and for restoration of possession and for recovery of damages amounting Rs. 8,960/- along with future damages till delivery of possession of the shop room to the plaintiff.
Case of the plaintiff is that he is the owner of the suit shop room and defendant had taken it on monthly rent in the year 1989 to open a bangle shop. From July, 1989 defendant ran into huge debts and her business was almost closed. In September, 89 she requested the plaintiff to give her in writing that she would be occupying the suit shop room for five years so as to create confidence in the minds of others and also get financial assistance. Out of pity the plaintiff gave in writing to the plaintiff that she would be allowed to continue as tenant for five years. Since the aforesaid agreement was executed in a plain paper which is not valid under law, another agreement was executed for a period of one year commencing from 1.11.1989 and the said agreement was executed on 23.10.1989 superseding the earlier agreement. As per the agreement dated 23.10.89 the defendant was required to pay rent by 5th of each succeeding month and she was required to vacate the shop room on 1.11.1990. Though defendant had agreed to vacate the premises by 1.11.90, notice being served on her, she vacated the shop room on 3.11.90 and the plaintiff took possession thereafter. However, the defendant on the next date lodged a false complaint at Bolagarh police station against son of the plaintiff and though the plaintiff had kept sand and stones for repair of the suit shop , on 2.12.1990 defendant attempted to take possession of the shop room forcibly, as a result of which a constable was posted to keep watch. Thereafter the plaintiff filed Title Suit No. 66/90 praying for permanent injunction to restrain the defendant from entering into the suit room and in the suit a pleader commission was deputed for local inspection. However, during pendency of the said suit the defendant forcibly entered into the shop room and took possession thereof and in view of the changed circumstances prayer for amendment of the plaint was sought for. Said prayer having been rejected the present suit was filed for eviction. According to the plaintiff the defendant forcibly took possession of the shop room on 24.11.92 and having attempted to take possession on 2.12.1990 she is liable to pay damages to the plaintiff for the entire period of unauthorised occupation @ 280/- per month.
3. Defendant filed written statement stating that towards middle part of 1989 the plaintiff on his own gave in writing and executed agreement on a plain paper stating therein that she would occupy the suit room on monthly rental basis for a period of five years. The Defendant denied to have entered into any agreement with the plaintiff on 23.10.89 for a period of one year commencing from 1.11.89. The defendant further denied to have .received any notice from the plaintiff to surrender possession of the suit room on 1.11.90. Her positive assertion is that she has not give off possession of the suit premises to the plaintiff. She further stated in the written statement that the suit filed by the plaintiff vide Title Suit No. 66/ 90 for permanent injunction was dismissed after contest and she has been paying rent regularly. Her further stand in the written statement is that no notice under Section 106 of the Transfer of Property Act, has been served on her terminating tenancy and as such the suit room was not maintainable.
4. Trial Court on consideration of the pleadings prayer framed as many as six issues and while answering Issue Nos. 3 and 4 held that the defendant's claim of continuous possession over the suit premises without surrendering the same to the plaintiff at point of time cannot be believed and that the defendant forcibly entered into the suit room on 24.11.92 after surrendering possession thereof in favour of the plaintiff on 3.11.90. Trial Court also held the agreement dated 23.10.89 to be valid one and also held that earlier plain paper agreement vide Ext. A is not valid one. Trial Court also found that the agreement vide Ext. d2 is for a period of one year and in view of the terms of agreement (Ext. 2), no notice under Section 106 of the Transfer of Property Act was necessary for termination of the tenancy. So far as damages are concerned, trial Court directed for recovery of damages for the amount claimed by the plaintiff and also further directed that the future damages @ 280/-per month shall be recovered.
Challenging the said judgment of the trial Court the defendant preferred an appeal before the Addl. District Judge, Khurda. The learned Addl. District Judge while confirming the finding of the trial Court modified the decree so iar as damages are concerned and directed that the plaintiff shall be entitled to damages for a period of 8 years and 7 months @ 280/- per month commencing from July 1993. However, the lower appellate Court agreed with the trial Court so far as future damages are concerned and directed that the future damages at the same rate of Rs. 280/- per month till date of recovery of possession shall be allowed.
5. This Court at the time of admission of the Second Appeal formulated the following substantial question of law.
"Whether notice under Section 106 of the Transfer of Property Act was required in the facts and circumstances of the present case and what was the nature of the tenancy, i.e. whether the appellant was/is a monthly tenant or a tenant for a fixed term ?"
6. In reference to the substantial question of law on which the appeal has been admitted, Shri S. Mishra-2, learned counsel appearing for the appellant drew the attention of the Court to Ext. A as well as Ext. 2. It is submitted by Sri Mishra that Ext. A is not an agreement and it is a promise on the part of the plaintiff not to evict the defendant for a period of five years. Referring to the said document Sri Mishra further submitted that as admitted in the said document, the defendant was inducted as tenant in the shop room sometime in the year 1987 and the said document was executed on 21.9.89 wherein promise was made by the plaintiff not to evict the defendant for a period of five years. Shri Mishra further submitted that plain reading of the said document would clearly indicate that the tenancy is a monthly tenancy and not for fixed term. According to Sri Mishra of Ext. A is accepted as valid document Ext. 2 has no meaning and no benefit can be claimed out of Ext. 2 by the plaintiff. He further submitted that if Ext. 2 was executed between the parties in view of the terms of the said agreement, defendant was required to deliver possession of the suit room on 1.11.90. Plaintiff having received rent for the month of November, 1990 it can be said that the agreement vide Ext. 2 was not acted upon. Referring to the evidence on record Shri Mishra further submitted that there is clear evidence to show that the plaintiff had received rent for the month of November, 1990 and therefore cannot derive any benefit from Ext. 2.
7. Shri Mukherji, learned senior counsel appearing for the plaintiff-respondent supported the findings of courts below and submitted that Ext. A even if accepted as an undertaking is superseded by Ext. 2 and after execution of Ext. 2. The defendant cannot derive any benefit from Ext. A. He further submitted that there is no evidence at all on record worth credence to accept contention of Sri Mishra that the rent for the month of November, 1990 was accepted by the plaintiff. On the other hand, specific case of the plaintiff is that the defendant was liable to pay damages for the said month also.
8. Keeping in mind the submissions made by the learned counsel appearing for both parties, I feel it necessary to refer to both the exhibits vide Ext. A and Ext. 2. Ext. A appears to be a document executed by the plaintiff on 21.9.89. First line of the document starts with the word "agreement". The document indicates that the plaintiff had agreed to allow the defendant to occupy the suit room for a period of five years. Said document also indicates that the plaintiff admitted tenancy in favour of the defendant two years prior to execution of the said document. Therefore if this admission is taken into consideration the defendant was inducted as a tenant sometime in September 1987 and the five years as per the said document should expired in September, 1992. Since the document is executed on a plain paper and has not been registered and the period of tenancy is for more than one year it appears that the parties decided to execute a fresh agreement in accordance with law and Ext. 2 was executed. Ext. 2 is an agreement between both the parties dated 23.10.89. Contents of the said agreement indicate that the parties had earlier executed a document on a plain paper where it was stated that the shop room shall be occupied by the defendant as a tenant for a period of five years. Since under law the document was not a valid one in accordance with law, the parties decided to cancel the same and enter into a fresh agreement, i.e. Ext. 2. Though execution of Ext. 2 was denied by the defendant in the written statement Sri Mishra, learned Counsel appearing for the defendant-appellant did not dispute execution of said document in course of argument. Contents of tl e said document further shows that the tenancy was created for'a period of one year i.e. with effect from 1.11.89 till 31.10.90 and the plaintiff was required to vacate the premises with effect from 1.11.90. Since execution of the document vide Ext. 2 has not only been accepted by both the Courts, but also not disputed by the defendant before this Court, I have no hesitation to held that the said agreement (Ext. 2) supersedes the earlier agreement / undertaking vide Ext. A. The agreement vide Ext. 2 being a valid document superseding the earlier agreement vide Ext. A, it can safely be said that the parties are bound by the agreement vide Ext. 2. Contents of the agreement further indicate without any ambiguity that the tenancy was granted for a period of one year i.e. from 1.11.89 to 31.10.90.
9. Now question that arises for consideration is as to whether any notice under Section 106 of the Transfer of Property Act was required to be served terminating tenancy prior to filing of suit for eviction. Section 106 of the Transfer of Property Act runs as follows :
"In the absence of a contract or local law or usage to the contrary, a lease of.immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year terminable, on the part of either lessor or lessee, 'six months' notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by 'fifteen days' notice expiring with the end of a month of the tenancy.
Every notice under this section must be in writing, signed by or on behalf of the person giving, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such property, or to one of his family or servants at his residence, or if such fender or delivery is not practicable affixed to a conspicuous part of the property."
Requirement of service of notice under the said Section is therefore only when tendered or delivered personally to such party, or to one of his family or servants at his residence, or if such tender or delivery is not practicable affixed to a conspicuous part of lease of immovable property is not covered by contract or local law or usages to the contrary. In the present case, Ext. 2 is a contract/agreement between the parties specifying the period of tenancy and therefore, in my view, no notice under Section 106 of the Act is required to be served prior to filing of the suit for eviction. On the other hand, Section 111 of the Act prescribes that a lease of immovable property is determined by efflux of time limited thereby. In view of Section 111 of the Act tenancy automatically terminates with effect from 1.11.90 and there is no requirement of serving any notice on the tenant under Section 106 of the Act.
10. Coming to the next question with regard to payment of rent it appears that the agreement vide Ext. 2 makes a specific provision for that. The.agreement provides that the tenant shal| pay Rs. 280/- per month for occupy the said shop room and shall obtain receipt in support of such payment. In absence of receipt the tenant shall not be entitled to claim payment of rent. Admittedly, there is no receipt available on record, which can indicate payment of rent for the month of November 1990. Reference is made to the evidence of defendant wherein she has stated that since December 1990 the plaintiff has not received rent from her though it was sent by money order. Referring to the said statement, Shri Mishra submitted that payment of rent for the month of November 1990 was admitted by the plaintiff. I am unable to accept such contention in view of the fact that neither there is any positive statement with regard to payment of rent for the month of November, 1990 nor is there any document in form of receipt showing payment of rent for the said month. Rather agreement in Ext. 2 clearly indicates that rent for the month shall be paid by 5th of next month and submission of Shri Mukherji that the rent for the month of November, 1990 was payable in the month of December, 1990 and accordingly damages were claimed from December, 1990, appears to be acceptable. I, therefore, agree with the Courts below that the defendant had not paid any rent for the month of November 1990. Both the Courts below found that the defendant had vacated the premises voluntarily on 3.11.90 and again forcibly entered into possession thereof on 24.12.92. Though this finding of the Courts below was also challenged by Sri Mishra on the ground of non-appreciation of evidence, I have declined to interfere with the same since both the Courts have concurrently found to the above effect. .
11. So far as damages are concerned, l,find from the order passed by the lower appellate Court that he has disallowed the damages from December, 1990 till date of defendant forcibly entered into the shop room in the year 1992. No cross appeal has been filed challenging the said part of the order. I a|so find that the lower appellate Court was justified in passing the said order. I, therefore, do not propose to make any change in the order of the lower appellate Court so far as payment of damages are concerned.
12. I do not find merit in the appeal and accordingly the same stands dismissed.