Patna High Court
Adit Prasad vs Chhaganlal And Anr. on 10 May, 1967
Equivalent citations: AIR1968PAT26, 1968(16)BLJR131, AIR 1968 PATNA 26
JUDGMENT G.N. Prasad, J.
1. This appeal has been preferred by defendant No. 2 In a suit instituted by the plaintiffs for eviction of the defendants from the shop premises comprised in Holding No. 50, in Ward No. 11 of Gaya Municipality and for a declaration that the order dated 22-11-1958 passed by the House Controller fixing Rs. 15.50 as the fair rent for the said premises Is illegal and without jurisdiction.
2. The case put forward by the plaintiffs is as follows: Sometime in 1946, two rooms of the house in question were let out to the defendants on a monthly rental of Rs. 69/- and Rs. 52.50 respectively. Subsequently, the two rooms were amalgamated into one by breaking the intervening wall and a new tenancy in respect of the same was created with effect from the 20th September 1952 on a consolidated rent of Rs. 121.50 per month. The transaction was incorporated in a Kirayanama for a term of three years which was executed by the defendant No. 2 as the Karta of his joint family. On 29-10-1953. however, defendant No. 1, who is the brother of defendant No. 2, applied to the House Controller for fixation of fair rent for the premises and House Rent Control case No. 119 of 1953 was accordingly registered. Only a week thereafter, namely, on 5-11-1953, the plaintiffs also put in an application before the controller for eviction of the defendants and House Rent Control Case No. 120 of 1953 was accordingly registered. On 18-11-1954, the Controller allowed the plaintiffs' petition for eviction without fixing a fair rent. Thereupon defendant No. 2 preferred an appeal before the Collector, who by his order dated 31-3-1956 upheld the order of eviction, but remanded the case for fixation of fair rent. But the order of the Collector was set aside in revision by the Commissioner by his order dated the 9th November, 1956, holding that there could be no default in payment of rent as fair rent had not yet been fixed. Against the order of the Commissioner, the plaintiffs filed a writ petition before this court, but that was rejected on 25-8-1958 as not tenable. Ultimately, on 22-11-1958, the Controller fixed Rs. 15.50 as the fair rent for the premises with effect from 29-10-1953, which was the date of defendant No. 1's application. This order of the controller is under challenge in the present suit which was instituted in 1959. The plaintiffs sought eviction of the defendants on three grounds; (i) default in the payment of rent, (ii) expiry of the period for which the tenancy was created, and (iii) personal necessity
3. The defendants put forward various picas in defence. According to them, the Kirayanama mentioning Rs. 121.50 as the monthly rent had been taken from defendant No. 2 under undue influence and the consolidated rental agreed upon by the parties was Rs. 60/-. The allegations of the plaintiffs relating to default in the payment of rent and personal necessity were denied as false. The defendants further pleaded that the tenancy was from month to month, and not for a fixed term of three years, as alleged by the plaintiffs
4. Both the courts have held that the controller's order dated 22-11-1958 fixing Rs. 15.50 as the fair rent for the premises is not without jurisdiction and hence the plaintiffs are not entitled to a declaration to that effect. Both the courts, however, have decreed the suit as a suit for eviction of the defendants on the ground that there was default in the payment of rent before the fixation of fair rent by the Controller.
5. The courts below have, however, recorded divergent finding on two points; (i) the trial court accepted the plaintiffs' case of personal necessity, but the lower appellate court did not accept it, and, (ii) according to the trial court, the tenancy was a month to month tenancy, but according to the lower appellate court, it was for a term of three years and had come to an end by efflux of time
6. Against the decree for eviction, defendant No. 2 has preferred this appeal, in which the plaintiffs have filed a cross-objection in respect of the Controller's order of fixation of fair rent which they had challenged as without jurisdiction.
7. The main question which arises for determination in the appeal is what was the character of the tenancy that had been created in respect of the premises in question. According to the plaintiffs, it was a tenancy for a period of three years with effect from 20-9-1952 on a monthly rental of Rs. 121.30 as specified in the Kirayanama (Ext 3); but Ext. 3 is an un-registered document and as such it cannot be relied upon for proving the transaction which had been entered into between the parties. Besides, it is insufficient to create a valid lease having regard to the provision of Section 107 of the Transfer of Property Act. Under that section, there can be no oral lease from year to year, or for a term exceeding one year, because the first paragraph of Section 107 lays down in clear terms mat such leases can only be made by a registered instrument. The law is also well settled that where a document requires registration, but has not been registered, it would be inadmissible in evidence under Section 49 of the Registration Act, and oral evidence as to its terms will be precluded under Section 91 of the Evidence Act. It is, therefore, manifest that the Kirayanama (Ext. 3), even though it was not vitiated by undue influence, as found by the court below, is wholly insufficient to prove that the tenancy that was created in September 1952 was for a term of three years.
8. What then was the true nature or duration of the tenancy so created. The answer to this question will be found in the decision of their Lordships of the Supreme Court in Ram Kumar Das v. Jagdish Chandra Deo, AIR 1952 SC 23. That was a case where a tenancy for a term of ten years was sought to be proved by a Kabuliyat which, however, was not an operative document, since, it had not been executed in accordance with the requirements of Section 107 of the Transfer of Property Act. The defendant relied upon the circumstance that the rent paid by him was an annual rent, and as such the presumption would rise that the tenancy was an annual tenancy. But this contention was repelled by their Lordships by pointing out that a tenancy from year to year or reserving an annual rent can only be made by a registered instrument as laid down in Section 107 of the Transfer of Property Act. In the case before their Lordships, the Kabuliyat was a registered instrument, but even then it was not an operative document as it did not fulfil the requirements of Section 107 of the Act. Their Lordships referred to Section 106 of the Act and pointed out that it lays down a rule of construction which is to be applied when there is no period agreed upon between the parties and held that in such cases, the duration of the tenancy has to be determined by reference to the object or purpose for which the tenancy is created. If the tenancy is for agricultural or manufacturing purposes, it shall be deemed to be a lease from year to year, but a lease of immovable property for any other purpose shall be deemed to be a lease from month to month terminable by fifteen day's notice on either side expiring with the end of a month of the tenancy. In the present case, the tenancy is undoubtedly not for agricultural or manufacturing purposes and the duration of the tenancy cannot be proved by the Kirayanama (Ext. 3), which is an unregistered document. There is also no evidence of a contract or local law or usage to the contrary within the meaning of Section 106 of the Transfer of Property Act. In the light of the decision of the Supreme Court in Ram Kumar Das's case, AIR 1952 SC 28 it must, therefore, be held that the tenancy in question is a month to month tenancy, and as such terminable by fifteen days' notice expiring with the end of a month of the tenancy. It follows that the lower appellate court was in error in holding that the tenancy was for a term of three years and that it came to an end by efflux of time.
9. Relying upon certain earlier decisions of this court, Mr. Kailash Roy for the plaintiffs-respondents contended that even though the kirayanama (Ext. 3) does not prove a tenancy for a term exceeding one year, having regard to the provisions of Section 107 of the Transfer of Property Act, it proves a tenancy for a term of one year. I am, however, unable to accept this contention. It will be noticed that a similar contention was raised before the Supreme Court in Ram Kumar Das' case, AIR 1952 SC 23, but their Lordships repelled the contention by observing as follows:
"We are not unmindful of the fact that in certain reported cases, such inference has been drawn. One such case has been referred to by Reuben, J. in his Judgment Aziz Ahmad v. Alauddin Ahmad, AIR 1933 Patna 485 where reliance was placed upon an earlier decision of the Calcutta High Court Md. Moosa v. Jaganund, 20 Ind Cas 715. A similar view seems to have been taken also in Matilal v. Darjeeling Municipality, 17 Cal LJ 167.
But one serious objection to this view seems to be that this would amount to making a new contract for the parties. The parties here cer-tainly did not intend to create a lease for one year. The lease was intended to be for a period exceeding one year, but as the intention was not expressed in the proper legal form, it could not be given effect to. It is one thing to say that in the absence of a valid agreement, the rights of the parlies would be regulated by law in the same manner as if no agreement existed at all; it is quite another thing to substitute a new agreement for the parties which is palpably contradicted by the admitted facts of the case,"
Having regard to these observations of their Lordships of the Supreme Court, I am unable to accept the contention of Mr. Roy, because the earlier decisions relied upon by him must be deemed to have been impliedly overruled by the observations of the Supreme Court quoted above. In the present case also, it is not the case of either party that the tenancy was for a term of one year and, therefore, to give effect to the argument of Mr. Roy would amount to making out a new agreement for the parties which the court is not entitled to do. It is manifest that in the absence of a valid lease, the duration of the tenancy must be determined by the provisions of Section 106 of the Transfer of Property Act and it must be held in the present case that the tenancy is a month to month tenancy which can only be determined by a notice of fifteen days as provided in that section.
10. The courts below have taken the view that the provisions of the Transfer of Property Act are not applicable to the present case which must be governed by the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, the latter being "a complete Act by itself, not dependant upon any other Act for the purpose of working out the provisions contained therein". It is true that an observation to that effect was made by a Bench of this court in Om Prakash Agarwala v, Additional Commissioner, Patna, 1956 BLJR 706 at p. 709: (AIR 1956 Pat 305 at pp. 306-307). Similar view was expressed by another Bench of this court in Neyazuddin v. Surya Deva Narain Verma, 1964 BLJR 701, wherein it was observed at page 711:
"No doubt according to Sections 106 and 111 of the Transfer of Property Act a monthly tenancy will not come to an end at the instance of the lessor unless there is a proper and valid notice and without that, the lessor cannot evict the lessee. But those provisions are overridden by Act 3 of 1947."
And further that:
"The impediments of Section 106 of the Transfer of Property Act will no longer control the operation of section 11 of the Bihar Buildings Control Act, 1947."
But these decisions are no longer good law in view of the subsequent Full Bench decision in Niranjan Pal v. Chaitanyalal Ghosh, 1964 BLJR 583 = (AIR 1964 Pat 401 (FB)). where it has been held that determination of the tenancy by a valid notice envisaged by Section 106 of the Transfer of Property Act on any of the grounds referred to in Section 11 of the Act is necessary before the landlord becomes entitled to the right of possession and to maintain a suit for eviction of the tenant tinder Section 11 of the Buildings Control Act. In view of this Full Bench decision, the plaintiffs' suit as a suit for eviction must fail as not maintainable in view of the undisputed fact that no notice contemplated by Section 106 of the Transfer of Property Act was served upon the defendants before the institution of the suit. Nor can the plaintiffs succeed on the footing that the tenancy has been determined by efflux of time under Clause (a) of Section 111 of the Act because it has been found that it is a month to month tenancy. The decree for eviction passed by the courts below must, accordingly, be set aside.
11. I now turn to the plaintiffs' cross-objection. Both the courts below have held that the Controller's order dated 22-11-1958 fixing Rs. 15.50 as the fair rent for the premises is not illegal or without jurisdiction. The grounds upon which the controller's order was challenged as without jurisdiction on behalf of the plaintiffs have been elaborately dealt with by both this courts below and nothing has been shown to us from which it can be held that the order of fixation of fair rent was illegal and without jurisdiction. Thus, there is no merit in the cross-objection .
12. In the result, the appeal succeeds and the cross-objection is dismissed. The decree for eviction passed by the courts below is set aside and the suit is dismissed. In the circumstances of this case, however, there will be no order as to costs.
Choudhary, J.
13. I agree.