Patna High Court
Sanker Ram And Ors. vs Tulshi Bhagat And Anr. on 6 January, 1921
Equivalent citations: 61IND. CAS.976, AIR 1921 PATNA 307
JUDGMENT Jwala Prasad, J.
1. This is an appeal against the decision of the Subordinate Judge of Gaya, dated the 20th March 1918, decreeing the plaintiffs suit for ejectment and compensation. The defendants are the appellants. They were tenants of the plaintiffs in respect of a house situate in Mahalla Purani Godown, Sahebgunj, in the city of Gaya. The plaintiffs served the defendants with a notice to vacate the because at the end of the month Asarh 1324 F.N. or such date of the month on which the defendants thought their monthly tenancy ended. The notice was served on the 7th Asarh, The defendants did not comply with the notice and continued to occupy the house, with the result that the plaintiffs instituted the suit, out of which this appeal has arisen, for ejecting the defendants and for compensation at the rate of Rs. 50 per month from the date of the expiry of the notice till the date of the defendants vacating the house in question. Both the Courts below have decreed the plaintiffs suit. The defendants challenge the decision of the said decree on the following grounds:
(1) That they were entitled to a six months notice, and not 15 days notice as has been served in the present case, their tenancy being an annual one (2) That the notice is invalid and illegal; and (3) That the damages awarded are excessive.
2. The Courts below have held that the defendants tenancy was a monthly one, commenting from the first of each month and ending on the 30th of the month. It has also been found that the tenancy in question is covered by the Transfer of Property Act. The plea of the defendants that the tenancy was in existence before the Transfer of Property Act name into operation has been overruled.
3. The learned Vakil on behalf of the appellant, however, contends that in much as the rent payable is annual and not monthly, 15 days notice was not sufficient. The finding of the Court below has been against the contention of the defendants. Even assuming, for the sake of argument, that the rent was payable annually, the defendants have failed to show that there was any contract between the parties overriding the statutory provisions of Section 106 of the Transfer of Property Act.
4. That section enacts that In the absence of a contract or local law or usage to the contrary, a lease of immoveable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable...by six months notice expiring with the end of a year of the tenancy, and a lease of immoveable...property shall be deemed to be a lease from month to month, terminable on the part of either the lesson or lessee by 15 days notice expiring at the end of a month of the tenancy.
5. The learned Vakil contends that from the uniform payment of annual rent for a number of years, it must be presumed that there was a contract between the parties originally that the tenancy should be an annual one, This contention is not available in as much as there is no written and registered lease filed in support of this, and consequently there could not be a valid contract of lease in the face of Section 107 of the Transfer of Property Act, which requires that a lease of snob a nature must be by means of a registered document. Even if there was any contrast at the inception, such a contract cannot be proved under the law and must be deemed to be "noesse," Therefore, the provisions of Section 106 apply, whereby the tenancy being not agricultural or manufacture, but for dwelling purposes is terminable on a fortnight's notice expiring at the end of the monthly tenancy. The learned Vakil cited a number of authorities in support of his contention, Kishori Mohun Roy v. Nund Kumar 24 C. 720 : 12 Ind. Dec. (N.S.) 1149, Hemangini Chowdhrani v. Srigobinda Chowdhury 29 C. 203 : 6 C.W.N. 69. None of those authorities apply, in as much as the tenancies in those oases were not governed by the Transfer of Property Act, and the question was what should be deemed to be a reasonable notice for ejecting the tenant. On the other hand, the case of Debendra Nath Bhowmik v. Syama Prosanna Bhowmik 11 C.W.N. 1124 seems to apply to the facts of the present case. The point in question has been dealt with and decided by the Calcutta High Court in the case of Aklu v. Emaman 33 Ind. Cas. 899 : 44 C. 403 : 20 C.W.N. 1005. The learned Chief Justice has clearly shown in that case that in the absence of any written and registered lease, a tenancy other than manufactural or agricultural would be deemed to be a monthly tenancy and be governed by Section 106 of the Transfer of Property Act. That decision is based on a consideration of the decision in Durgi Nikarini v. Goberdhan Bose 24 Ind. Cas. 183 : 20 C.L.J. 448 at p. 454 : 19 C.W.N. 525 as well as upon the English authorities quoted therein. I need, therefore, hardly discuss the matter again. I entirely agree with the view taken by the learned Chief Justice in that case, and I accordingly overrule the contention.
6. The second contention also seems to be unsubstantial, in as much as the notice has given more than 15 days time to quit and further has given the defendants option to quit on a later date, in case the defendants thought that their monthly tenancy ended on such a date. The notice is not at all uncertain, for the date for vacating the house has been clearly and definitely fixed in the notice by the plaintiff. It is only to avoid any doubt or dispute that an option of the nature set forth in the notice was given to the defendants. It was for their benefit. They cannot dispute the notice on the sects of uncertainty. This contiinfcion also must be overruled.
7. The last contention relates to compensation, and is concluded by the finding of the Court below that the plaintiffs suffered loss of about Rs. 60 a month on account of the defendants not having vated the house, as required by the notice. There is evidence to support the finding and are not competent to go behind it.
8. The result is that all the contentions fail and the appeal is dismissed with costs.
Ross. J.
9. I agree.