Patna High Court
Pritilata Devi And Ors. vs Banke Bihari Lal And Ors. on 18 May, 1962
Equivalent citations: AIR1962PAT446, AIR 1962 PATNA 446, 1962 BLJR 906 ILR 42 PAT 674, ILR 42 PAT 674
JUDGMENT Ramratna Singh, J.
1. This appeal by the plaintiffs arises out of a suit for ejectment and for recovery of arrears of rent and damages, which was decreed in part by an Additional Subordinate Judge of Muzaffarpur.
2. The facts are admitted. An area of 14 kathas and odd with a dilapidated construction situated in the town of MUzaffarpur was given to the defendants under a registered deed of lease dated the 5th October 1942. The period of lease was extended through another registered deed of lease dated the 25th July 1946 for a period of five years from the 16th October 1945 to the 15th October 1950. The first deed was executed by the plaintiffs in favour of defendant No. 1, Banke Bihari Lal, on a monthly rent of Rs. 60/- only, The second lease was executed by the plaintiffs in favour of defendant No. 2, son of Banke Bihari; and the monthly rent was Rs. 90 only. The leases were for industrial purposes; and the defendants made some constructions and set up mills on the demised land for the purpose of their business. On the expiry of the second term, the plaintiffs, after service of a notice on the defendants to vacate the demised land and to remove the construction and the mills, made an application to the house Controller under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, for the eviction of the defendants. The house Controller granted the prayer of the plaintiffs; but the higher authorities constituted under the Act rejected the prayer, holding, that this Act did not apply to the lease of a vacant piece of land. Hence, the suit.
3. The plaintiffs alleged that the defendants were members of a joint Hindu family of which defendant No. 1 was originally the karta and subsequently defendant No. 2 became the karta; and the defendants were sued in their representative capacity. In addition to the claim for eviction, the plaintiffs claimed in Schedule II to the plaint arrears of rent from October 1950 at the rate of Rs. 90 per month and compensation, from November 1950 to July 1954 at the rate of Rs. 125 per month besides interest at 1 per cent per month.
4. The defendants asserted that they had acquired tenancy right under the Bihar Tenancy Act, it was further asserted that, though the joint family of the defendants consisted also of Musammat Lachhmi Devi and her three minor sons, they had not been impleaded in the suit; and, therefore, it was bad for defect of parties. It was then asserted that a civil suit did not lie after the decision under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. The last plea was that the suit could not be maintained for want of notice either under the Bihar Tenancy Act or under the Transfer of Property Act.
5. The learned Additional Subordinate Judge dismissed the claim for ejectment on the ground that the defendants had been holding over after the expiry of the lease, in as much as the plaintiffs had assented to the defendants continuing in possession by their delay in taking action in going to court for ejectment of the defendants and by claiming rent for the whole of the month of October, 1959 in Schedule II to the plaint; and, therefore, in the absence of a notice under Section 106 of the Transfer of Property Act, a suit for ejectment does not lie. He also found that the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act 1947, are applicable to this tenancy and the civil court has no jurisdiction in the matter. He rejected, however, the plea of the defendants that the provisions of the Bihar Tenancy Act applied to this case. Lastly, he found that even if Lachhmi Devi and her sons were also interested in the business carried on the demised premises, the suit would not fail in as much as Baldeo (defendant No. 1) represented the family. Ultimately, he allowed a decree for rent only in terms of the lease and refused the claim for ejectment, interest or compensation. Hence, the appeal.
6. In view of the decision in Smt. Jugal Kishori Devi v. Ashok Mills and Foundries, AIR 1961 Pat 330, it was conceded at the bar that the provisions of the Transfer of Property Act, not the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, apply to this case: It was also conceded that the provisions of the Bihar Tenancy Act cannot apply to this case.
7. The first question, therefore, to consider is whether the defendants or the lessees of the demised premises would be deemed to have been holding over within the meaning of the expression in Section 116 of the Transfer of Property Act in the circumstances of the present case. The learned Additional Subordinate Judge has observed that the plaintiffs kept silent for about eight months after the termination of the tenancy by virtue of the lease; and he has taken this fact as one of the grounds for deciding the question in favour of the defendants. But it was held in Digambar Narain Chaudhary v. Commissioner of Tirhut Division, AIR 1959 Pat 1 (FB), that delay in institution of an action for eviction after expiry of the term of the lease is not sufficient to bar a landlord's claim for eviction and such a delay does not raise a presumption in favour of the landlord having allowed the tenant to hold over. It was further held by their Lordships that the renewal of a tenancy by application of Section 116 of the Transfer of Property Act takes place only when there is no agreement to the contrary; and, if there is an agreement, the acceptance of rent after the determination of the lease will not give rise to a renewal of the tenancy, as laid down in Section 116.
This case was ultimately decided under the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947; but their Lordships also discussed the effect of Section 116 of the Transfer of Property Act where the former Act did not apply. They said that, before a new tenancy comes into operation by application of Section 116, two conditions must be satisfied, (1) that the tenant must continue in possession after the termination of the tenancy and (2) that the lessor accepts rent from the lessee which is only one of the ways of signifying his assent, or otherwise assents to his continuing in possession. In the present case, it is admitted that the plaintiffs did not accept any rent after the termination of the tenancy under the second lease. Sri Lalnarain Sinha, learned advocate appearing for the respondents, however, contended that the claim for rent for the whole of the month of October, 1950, in Schedule II to the plaint, though the term of the lease expired on the 15th October, 1950, amounted to an assent on the part of the landlord to continue the tenancy; but this contention is not valid.
8. In Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden, AIR 1949 FC 124, their Lordships observed with reference to the requirements of Section 116 of the Transfer of Property Act:-
"What creates the new relationship of landlord and tenant after the determination of the previous lease is not the acceptance of rent by itself, but the 'assent' of the lessor which may be proved by such acceptance or 'otherwise', the assent of the lessee to the fresh arrangement being already there implicit in his continuing in possession or tendering of rent. In other words, the conduct of the parties, in such circumstances, implied an offer by the person holding over to take a new tenancy on the terms of the old and acceptance of that offer by the owner. That the section is based on an implied or presumed contractual, and not a statutory, relationship is also made clear by the reference to 'an agreement to the contrary' excluding the operation of the rule, for if it were the intention of the Legislature to bring into existence an arrangement by force of the statute and independently of the consensus of the parties as under the recent rent control legislation, one would expect that it would not be made liable to be displaced by an agreement between the parties. In my opinion, the principle underlying Section 116 is implied contract, and the test of renewal is the consensus between the lessor and the lessee or under lessee holding over and not an option exercisable by the lessor alone".
The principles laid down in this decision were approved by the Supreme Court in Karnani Industrial Bank Ltd. v. Province of Bengal, AIR 1951 SC 285 and Ganga Dut Murarka v. Kartik Chandra Das, AIR 1961 SC 1067. In the first case, a lease in respect of the land for manufacture of bricks was for a term of ten years, the lease was to commence from the 24th September, 1928, and a year's rent was payable in advance. Subsequently, the payment used to be made by the lessee according to the financial year, that is, from the 1st April, to the 31st March. On the 5th April, 1937, the tenant remitted rent for a complete year from the 1st April, 1937, to the 31st March, 1938, and the landlord accepted it. Their Lordships of the Supreme Court said that, inasmuch as the rent had been accepted before expiry of the terms of the lease, the acceptance did not amount to assent on the part of the landlord and, if it at all amounted to assent, the assent was for continuance of the tenancy up to the 31st March, 1938, only. It was further held that the landlord was entitled to re-enter after the 31st March, 1938, and no notice under Section 106 of the Transfer of Property Act was necessary. In the other case, their Lordships quoted with approval the following passage from the above decision:
"On the determination of a lease, it is the duty of the lessee to deliver up possession of the demised premises to the lessor. If the lessee or a sub-lessee under him continues in possession even after the determination of the lease, the landlord undoubtedly has the right to eject him forthwith; but if he does not, and there is neither assent or dissent on his part to the continuance of occupation of such person, the latter becomes in the language of English law a tenant on sufferance who has no lawful title to the land but holds it merely through the laches of the landlord. If now the landlord accepts rent from such person or otherwise expressed assent to the continuance of his possession a new tenancy comes into existence as is contemplated by Section 116, Transfer of Property Act, and unless there is an agreement to the contrary, such tenancy would be regarded as one from year to year or from month to month in accordance with tile provisions of Section 106 of the Act."
9. It is clear from the aforesaid observation that mere delay in instituting an action for ejectment by the landlord does not amount to his assent to the continuance of the tenant's possession and a new tenancy as contemplated by Section 116 of the Transfer of Property Act does not come into existence. It is admitted in the present case that the plaintiffs never accepted any rent after the expiry of the term of the second lease. It is also remarkable that the defendants never asserted any claim of holding over. They did not even plead 'holding over' in the written statement, and consequently no issue was raised on this point and no evidence was adduced by the parties. The mere fact that in Schedule II to the plaint, the rent for the whole of October, 1950, was claimed cannot, an my opinion, amount to holding over on the part of the tenant under Section 116 of the Transfer of Property Act. Schedules II and III contain only the account of the rent and damages claimed in paragraph 20 of the plaint. Schedule II has to be read with paragraph 15 of the plaint in which it is stated:
"...... the defendants are liable to pay compensation at the rate of Rs. 125/- per month to the plaintiffs for the period of their occupation since after the expiry of the terms of the lease, in as much as their liability for compensation is ex delicto, i.e., based on their liability for tort".
In paragraph 14 of the plaint the plaintiffs asserted that the lease determined on the expiry of the term for which it had been granted and the defendants were liable to be ejected without any notice under Section 106 of the Transfer of Property Act. If Schedule II containing the account of arrears of rent and Schedule III containing the account for compensation are read with paragraphs 14 and 15 of the plaint, the only inference is that a bona fide mistake was committed in claiming rent in Schedule II for the whole of the month of October, 1950. The correct account ought to have been to claim rent at the rate of Rs. 90 per month for the first half of October, 1950, and to claim compensation at the rate of Rs. 125 per month with effect from the 16th October, 1950. But on account of a bona fide error, rent for the whole of October was calculated in Schedule II and compensation was claimed in Schedule III from November, 1950. Sri Lalnarain Sinha argued that the trial Court had passed a decree for rent for the whole of October 1950, and the effect of this decree cannot be effaced upon the plea of bona fide error or mistake, in as much as there is no appeal against the decree for rent. But in the grounds of appeal, the plaintiffs-appellants have clearly asserted that the Court below was wrong in its finding that there was 'holding over' within the meaning of Section 116 of the Transfer of Property Act and it was wrong in refusing to grant a decree for rent and compensation with interest as specified in the plaint. In my opinion, these two grounds are sufficient to show that the plaintiffs-appellants never accepted the decree of the trial Court for rent for the whole of October, 1950, as amounting to an assent on their behalf to the defendants holding over within the meaning of Section 116 of the Transfer of Property Act.
10. Sri Lalnarain Sinha relied on the decisions in Jogeshuri Chowdhrain v. Mohamed Ebrahim, ILR 14 Cal 33, Kalanand Singh v. Gunput Singh, 16 Cal WN 104 and Midnapore Zamindari Co., Ltd. v. Joyram Santal, 1 Pat LJ 185 : (AIR 1916 Pat 409). These decisions were in respect of Agricultural tenancies and were based on the provisions of the tenancy law. Under the relevant provisions of the tenancy law, the tenancy in each case was to expire at the end of the agricultural year and thereafter the landlord was entitled to eject the tenant; but he either accepted the rent or sued for rent of some period subsequent to the last day of the agricultural year; and, therefore, in view of the relevant provision of the tenancy law, it was held that this conduct on the part of the landlord amounted to waiver of his right to eject the tenant on the expiry of the preceding agricultural year. These decisions do not, therefore, apply to the present case. Sri Lalnarain Sinha relied also on Kristonath Koondoo v. T.F. Brown, ILR 14 Cal 176, Abdul Rashid Khan v. Safar Ali, 42 Ind Cas 614 : (AIR 1918 Cal 552 (2)), Ram Kumar Das v. Jagdish Chandra Deo, AIR 1952 SC 23 and Bastacolla Colliery Co., Ltd. v. Bandhu Beldar, AIR 1960 Pat 344 (FB).
The facts of all these cases are, however distinguishable. In Kristo Nath Koondoo's case, there was no question of the interpretation of any provision of the Transfer of Property Act. In Abdul Rashid Khan's case, the plaintiff had claimed in the suit for ejectment also rent for periods subsequent to the default in payment of rent which gave him the cause of action for ejectment; and, therefore, it was held that by making such a claim the plaintiff must be taken to have waived the forfeiture under Section 112 of the Transfer of Property Act. In Ram Kumar Das's case, the tenant alone had executed a registered kabuliat and the landlord was not an executant thereof. Consequently, it was held that the kabuliat was not operative under Section 107 of the Transfer of Property Act. The question then arose whether a tenancy was created by implication of law; and it was held that, in as much as the landlord had accepted rent from time to time, a tenancy from month to month was created under Section 106 of the Transfer of Property Act. A similar view was taken in Bastacolla Colliery Co., Ltd.'s case, and it was held that owing to the admitted payment and acceptance of rent the relationship of landlord and tenant came into existence. In the present case, however, the facts are absolutely different. No rent was paid or accepted after the expiry of the lease; and, as found earlier the claim for rent for the whole of October, 1950, in Schedule II to the plaint was included on account of a bona fide mistake.
11. In view of the foregoing discussions, it must be held that there was no holding over by the defendants in the present case within the meaning of Section 116 of the Transfer of Property Act; and, therefore, no notice under Section ro6 of that Act was necessary.
12. The next question is whether Musammat Lachmi Devi and her minor sons are necessary parties for the claim for ejectment. It is alleged in paragraph 2 of the plaint that the defendants are members of a joint Hindu family of which defendant No. 1, the executant of the first lease, was the karta then and thereafter defendant No. 2, the executant of the second lease, is the karta. In paragraph 8 of the written statement it was stated that the allegation in paragraph 3 of the plaint was not "admitted" and even on the respective dates of the commencement of the leases tha joint family of the defendants consisted of the defendants with their heirs and legal representatives and Musammat Lachhmi Devi and her three minor sons. The plaint was amended on the 17th January, 1955, and it was inserted in that paragraph that the plaintiffs and defendants were suing and were being sued in their representative capacities. Sri Lalnarain Sinha argued that, besides defendants 1 and 2, there are three other defendants, and therefore, all the five defendants could not have been sued in their representative capacities. Only defendant No. 1 is a party to the first lease and only defendant No. 2 is a party to the second lease.
There is nothing in any of the documents of lease to indicate that any other person was interested as lessee. Banke Bihari was the sole lessee in the first deed to lease and Baldeo Prasad was the sole lessee in the second deed. There is no evidence or admission that Lachhmi Devi and her minor sons were also interested in the lease. Certain documents of the Income-tax Department of a period subsequent to October 1950, show that Musammat Lachhmi Devi and her sons were separate from the defendants; and these documents also refer to an instrument of partnership dated the 12th October, 1948, which shows that a partition had taken place before that date. But they do not show that Musammat Lachhmi Devi and her sons were interested in the lease; rather rent receipts for 1944, 1946, and 1950 for the lease rent as well as money order coupons of 1950 and 1951, which were refused by the plaintiffs, show that Baldeo was the only tenant. Sri S.N. Dutta, therefore, argued that defendant Baldeo was the only person interested in the lease and it was sufficient for the purposes of the present suit to implead him as defendant and the names of other persons in the category of defendants are redundant. This argument of Sri Dutta is well founded; and I hold that Musammat Lachhmi Devi and her minor sons are not necessary parties to the suit. It may be stated incidentally that it is not necessary to decide in this suit whether Musammat Lachhmi Devi and her sons have or had any interest in the business carried on the leased premises.
13. The last point pressed by Sri Lalnarain Sinha was that the appeal has abated. Respondent No. 1 admittedly died during the pendency of the appeal. The appellants made an application for substitution of the widow of respondent No. 1 on the allegation that respondent No. 1 died on the 27th December, 1959. It was conceded by Sri Lalnarain Sinha that if that date were the correct date of death, then no question of abatement would arise. The respondents filed a counter-affidavit with a copy of the death register to show that respondent No. 1 died on the 19th December, 1959. Sri Lalnarain Sinha argued that the statements of the surviving respondents regarding the date of death should be preferred, as they were more competent to know about the same and, therefore, the appeal has abated. But order No. 13 dated the 22nd July, 1960, shows that the appellants and the respondents were allowed ten days' time to file a second copy of the substitution petition as also of the counter-affidavit and to serve a copy of the counter-affidavit on the other side failing which "the substitution petition and the counter-affidavit will stand rejected without further reference to a Bench". Order No. 15 dated the 20th August, 1960, show that the copy of the counter-affidavit had not been served on the appellants and the second copy of the same had not been filed by the respondents; and so the counter-affidavit stood rejected. Then by order No. 17 dated the 2nd September, 1960, the widow of deceased respondent No. 1 was substituted and appeal notice was ordered to be issued. A fresh counter-affidavit was, however, filed that day on behalf of the surviving respondents and the learned advocate for the respondents objected to the substitution of the widow. This fresh counter-affidavit was ordered merely to be kept on the record. Hence, the question of abatement does not arise after this order.
14. In view of the foregoing findings, the plaintiffs-appellants are entitled to a decree for ejectment. As there is no evidence to show that the plaintiffs suffered a loss of more than Rs. 90/-a month, they are entitled also to a decree for rent for the first half of October, 1950, and damages from the 16th October, 1950, to the 31st July, 1954, at the rate of RS. 90/- per month, without any interest.
15. In the result, the suit is decreed in part as indicated above, with interest pendente lite and future at six per cent per annum; and the appeal is accordingly allowed in part. The appellants will get corresponding costs of both the Courts.
Kanhaiya Singh, J.
16. I agree.