Madras High Court
Rajangam (Died) And 5 Ors. vs Clara Ammal And 3 Ors. on 5 November, 1996
ORDER Raju, J.
1. The above Second Appeal has been filed by the defendant in O.S.No. 383 of 1981 on the file of the District Munsif's Court, Nagapattinam. Defendant - Appellant died during the pendency of the appeal and his legal representative have been brought on record to prosecute the appeal. Respondents filed the suit for recovery of possession of the suit property after removing the superstructure put up on the land and for recovery of the rental arrears of a sum of Rs. 360 for 18 months from 15.2.1980 to 15.8.1981.
2. The case of the plaintiffs before the trial Court was that the property belonged to them, that as per the agreement dated 15.12.1968, the defendant became a tenant and he put up a hut with his expenses on the undertaking to pay Rs. 20 per month towards rent on the first of every English Calendar month, that he failed to pay the rent as undertaken from 15.2.1980 onwards, that the property is also required for the use of the plaintiffs, that the defendant has also encroached upon other portions of the property and that a notice dated 15.7.1981 has been issued calling upon the defendant to deliver vacant possession of the property.
3. The defendant filed a written statement in which though there is no dispute about the title or ownership of the property of the plaintiffs, it was contended that there are two huts, in one of which the son of the defendant by name Nagappan is living and he should have been a necessary and property party to the suit, that an extent larger than the one specified in the agreement was also in the possession of the defendant, that the notice calling upon the defendant to hand over possession on 16.8.1981 is illegal and that if the plaintiffs prove that Amalorpavam is the duly constituted agent of the plaintiffs, the defendant is always ready to pay the rental arrears. On the above claims, the defendant prayed that the suit had to be dismissed.
4. The suit has been tried and during trial both parties adduced oral and documentary evidence. The learned trial Judge by his Judgment and decree dated 27.4.1983 decreed the suit for recovery of vacant site of an extent of 40 feet north-south and 25 feet east-west, after removing the superstructure at the expenses of the defendant. The claim for recovery of rent for 18 months in a sum of Rs.360 was also allowed and in respect of further mesne profits, the parties have been relegated to proceedings under Order 20, Rule 12 of the Code of Civil Procedure. Aggrieved, the defendant filed A.S.No. 18 of 1983 before Sub-Court, Nagapattinam. The learned first appellate Judge also concurred with the findings and conclusions recorded by the learned trial Judge and dismissed the appeal. Hence, the above Second Appeal.
5. The learned counsel appearing for the appellants, while elaborating the substantial questions of law formulated at the time of admission of the Second Appeal, contended that the plaintiffs cannot split up the tenancy and seek recovery of possession of a lesser extent, when admittedly the defendant is in possession of a larger extent and that the Courts below committed an error in coming to the conclusion that the tenancy has been validly terminated under the provisions of Section 106 of the Transfer of Property Act. The learned counsel for the appellants placed reliance upon the decisions in D.G. Mehta v. R.D. Chudasaka, , Pardati v. Manasi Devi, and Datt Chpant v. Vithalrao, in support of the submissions as above. Per contra, learned counsel for the respondents adopted the reasons assigned by the Courts below and contended that the conclusions arrived at by the Courts below concurrently are in accordance with law and do not suffer from any infirmity warranting interference-by this Court. To justify his claim that the notice of termination of tenancy was in accordance with law and that the Courts below were right in coming to such conclusion, reliance has been placed by the learned counsel on the decisions in Bhagabandas Agarwalla v. Bhagwandas Kanu, and Kallappa Achari v. R. Ramdoss Rao, 1974 TLNJ 263. The learned counsel appearing on either side invited my attention to the relevant findings in the Judgments of the Courts below to justify their respective standpoint.
6. I have carefully considered the submissions of the learned counsel appearing on either side. In my view, there are no merits in the above no merits in the above Second Appeal. The decisions in D.G. Metha's case, and Parbat's case, cannot be of any assistance to the learned counsel for the appellant, in the teeth of the subsequent developments of law, to which a reference will be made hereinafter. In the decision of Dattchpant's case, , the apex Court has observed that without termination of the contractual tenancy by a valid notice or other mode set out in Section 111, T.P. Act, it was not open to the landlord to treat the appellant as a statutory tenant and seek his eviction without service of a notice to quit. At the same time, it was categorically declared in the very same decision that no notice is necessary if a lessee of immovable property determined under Clause (a) of Section 111 of the Transfer of Property Act by efflux of the time limited, thereby. In Bhagabandas Agarwalla's case, , the apex Court dealt with a challenge to a notice of termination and the approach and manner of consideration to be adopted in interpreting the notice to quit and the determination of the validity of the same, it was observed therein that the notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be contrued at res nagis valeat quam perest and that the validity of a notice to quit ought not to turn on the splitting of a straw and it must not be read in a hypercritical manner, nor must its interpretation be affected by pedagogic pandantism or over refined subtlety but it must be construed in a common sense way. The notice to quit must expire as provided for in Section 106 of the Transfer of Property Act with the end of the month of the tenancy or from the expiration of the month of the tenancy. It is, therefore, necessary in this case to see in the light of the above, whether the Courts below could be held to have committed any error, warranting interference by this Court.
7. In Kallappa Achari's case, 1974 TLNJ 263, a learned single Judge of this Court has held that a notice calling upon the tenant to vacate on a particular date, though without mentioning specifically that the tenancy as such was determined, would amount to determination of the tenancy as contemplated under Section 106 of the Transfer of Property Act. So far as the facts and circumstances of this case are concerned, there can be no doubt over the position that the tenancy agreement was from 15.12.1968 and having regard to the nature of the land, it is to be construed to be a monthly tenancy. The plaintiffs have treated apparently by virtue of the agreement between the parties the tenancy month in this case being from 15.12.1968 periodically. The fact that mere was a provision for payment of rent on the first of every English calendar month is no justification to treat it as a monthly tenancy with effect from the first of English Calendar month. The courts below, in my view, was right in holding that the notice of termination of tenancy giving 15 days' time ending with the tenancy month viz., by 15.8.1981 and calling upon the defendant to surrender vacant possession of the site on 16.8.1981 is quite in accordance with the stipulation contained in Section 106 of the Transfer of Property Act. The contentions to the contrary are of no merit and the Courts below cannot be said to have committed any error in rejecting the objections of the defendant in this regard, warranting interference of this Court in the Second Appeal.
8. As for the other plea that the plaintiffs cannot seek recovery of possession of a lesser extent, when admittedly the defendant is in possession of a larger extent, it needs a mere reference only to reject such a plea. Though the termination was of the entire tenancy, nothing precludes the landlord from seeking recovery of a lesser extent and there is no legal impediment for the plaintiffs to get such relief. The objection in this regard has also been, in my view, rightly rejected and there is no infirmity on this ground as claimed for by the appellants. The Second Appeal, therefore, fails and shall stand dismissed. There will be no order as to costs.