Patna High Court
Ramayan Saran vs The Patna Improvement Trust on 23 December, 1970
Equivalent citations: AIR1972PAT7, AIR 1972 PATNA 7
JUDGMENT B.D. Singh, J.
1. These two appeals are directed against the judgment and decree passed in Title Suit No. 62 of 1962. First Appeal No. 360 of 1964 is at the instance or Ramayan Saran, Principal and Secretary, Patna Public School, who was defendant in the suit, being aggrieved by the order of the Court below directing eviction of the defendant from the ten stalls (Nos. 55 to 64) owned by the Patna Improvement Trust and located in Block No, 4 at Rajendra Nagar, in which the defendant was running the school. First Appeal No. 418 of 1964 is at the instance of the Patna Improvement Trust through its Chairman, who was plaintiff in the suit since the Court below refused to grant a decree for arrears of rent amounting to Rs. 17,580-89 P. as claimed by the plaintiff against the defendant. Both these appeals have been heard together since they arise out of the same judgment and decree and this common judgment will govern both of them.
2. The plaintiff instituted the suit on the 3rd July, 1962, alleging, inter alia, that on the 29th December, 1960, the defendant approached the plaintiff for fifteen vacant rooms in the Central Market No. 4 at Rajendra Nagar for holding classes of his school for one year, and the plaintiff agreed to allot ten stalls numbering 55 to 64 along with the side rooms, meant for shop-cum-building, in Block No. 4, described under Schedule III of the plaint. On the 30th of December, I960, the defendant was inducted into the said stalls at the rates of rents and taxes as per statement given in Schedule I of the plaint. In spite of demand, the defendant did not pay any rent or taxes amounting to Rupees 17,580-89 P. as per details given in Schedule II of the plaint. The defendant also refused to vacate the stalls although the period of one year expired on the 31st December, 1961, the plaintiff further alleged that the stalls were let out to the defendant for the purpose of holding classes of the school, but the defendant began to convert them into hostel and for messing arrangement which was clearly a breach of the terms and conditions of the tenancy and claimed, mainly, two reliefs: (1) a decree directing the defendant to deliver vacant possession of the stalls described in Schedule III, and (2) a decree for Rs. 17,580-89 P. as detailed under Schedule II.
3. The defendant contested the suit and also filed written statement alleging, inter alia, therein that the suit as framed was not maintainable and the plaintiff had no cause of action. He further alleged that no rent whatsoever was fixed for the stalls in question at the time of allotment and it was agreed that rent would be fixed later on in due course. He also stated in the written statement that the defendant was surprised to receive all of a sud-
den the letter of the plaintiff, dated the 3rd July, 1961, along with a copy of the resolution dated the 31st May, 1961, showing that the rent of the stalls had been fixed at Rs. 1034-17 P. per month. He alleged that the said rate of rent was fixed behind his back and he had never agreed to pay rent at the said rate.
4. On the pleadings of the parties, the following issues were framed by the Court below:
1. Has the plaintiff got any valid cause of action for the suit?
2. Is the suit as framed maintainable?
3. Was there any legal rent fixed for the stall in question?
4. Is the defendant a defaulter within the meaning of the B.B.C. Act?
5. Is plaintiff entitled to evict the defendant from the stalls in question?
6. To what relief or reliefs is the plaintiff entitled?
The parties adduced both oral and documentary evidence. On a consideration of the evidence on record, the Court below held that the plaintiff had a valid cause of action for eviction of the defendant on the ground of the expiration of the period of the lease, but it found that the plaintiff was not entitled to any arrear of rent.
5. Mr. Kaushal Kishore Sinha, learned counsel appearing on behalf of Ramayan Saran, Principal of the School, supported the finding of the Court below holding that the plaintiff was not entitled to any decree for rent but he vehemently attacked its finding regarding eviction of the defendant from the suit land. Mr. Ray Paras Nath, learned counsel appearing on behalf of the Patna Improvement, on the other hand, supported the order of eviction but contended that the Court below has grossly erred in not granting any decree for rent as claimed by the plaintiff.
6. On the various contentions advanced on behalf of the parties, the following two main questions emerged for consideration in both the appeals:
I. Whether any relationship of landlord and tenant existed between the parties giving rise to a right of tenancy even in the absence of payment of any rent by the defendant to the plaintiff and/or in the absence of fixation of any rent for the stalls in question?
II. Whether the plaintiff was entitled to a decree for rent?
7. It would be convenient to consider point I first. Mr. Sinha referred to the various correspondence between the parties in order to show that a right of tenancy had accrued to the defendant. On the 29th of December, 1960, Ramayan Saran filed an application to the Chairman of the Trust and on the same application the Chairman passed an order which was marked as exhibit 1, The relevant portion of the application reads thus:
"In continuation of my previous applications to you for the accommodation of Patna Public School at Rajendra Nagar I request you kindly to allow me to use the fifteen vacant rooms meant for shops along With the side rooms in the central market No. 4 at Rajendra Nagar for holding classes for one year. I am prepared to pay reasonable rent."
The order of the Chairman which is addressed to the Executive Officer of the Trust reads as follows:
"It was informally discussed in the last meeting of the Board.
The decision was that the scheme submitted by Prof. Ramayan Saran may be further examined and then brought before the Board. In the meantime Shri Saran may be allowed a few rooms temporarily for a year at the most, on a rent which might be concessional, as I. the school will cease to function when the Trust starts its own schools.
II. The school will meet the genuine requirements of the area. Kindly take further necessary action. Shri Saran should be given 10 shops. Some modifications will also be necessary for which proposals may be put up. Immediate action is necessary as the school reopens on 3-1-61."
Learned counsel drew our attention to exhibit 2 which is a copy of the letter of allotment of the stalls to the Principal of the said Public School, issued by the Executive Officer of the Trust, dated the 30th December, 1960. The relevant portion of the letter is to the following effect:
"With reference to your application dated the 29th December, 1960, on the subject noted above, I am to say that the Chairman has been pleased to allot you ten stalls numbering 55 to 64 in Block No. 4 of ABCD shop-cum-building at Rajendra (Nagar) Patna on monthly rental basis for Patna Public School temporarily for a year. Some modifications that may be required in the existing stalls to suit the school will be taken up only after the cost has been approved by the Chairman.
XX XX XX The terms and conditions of letting out these stalls and also the monthly rental to be fixed by the Trust will be intimated to you in due course."
Learned counsel also referred to exhibit 3, dated the 30th December, 1960, which is the occupancy report submitted by the Section Officer. In the said report the terms of occupation mentioned is 'Rent' and under the columns 'Rent per month' and 'Security deposit' no amount has been mentioned. Learned counsel then ' placed before us exhibit 3 (Ka), dated the 19th July, 1981, which is the revised occupancy report issued by the Section Officer. In this revised report also the terms of occupation is 'Rent' and under the columns 'Rent per month' and 'Security, deposit' no amount has been mentioned. Learned counsel further refer-
red to exhibit 6 which is a letter from the Executive Officer of the Trust to the Principal of the Public School, dated 17/20th March, 1961. In this letter also it is reiterated that the Chairman had been pleased to allot to the Principal on his application dated the 29th Dec., 1960, stalls for holding classes of the said school. Further, in this letter, the Executive Officer has complained to the Principal for having converted some of the rooms into a full-fledged hostel and for providing the messing arrangement which was contrary to the rules of the Trust as the stalls were never meant for hostel or for messing purposes. Besides, it was contrary to the terms of allotment and the stalls were allotted only for holding of classes. In this letter the Executive Officer mentioned that he was directed by the Chairman to inform him (the Principal) that the running of the hostel and the mess must be stopped at once. In reply to the above letter (exhibit 6) the Principal wrote a letter, dated the 21st March, 1961, exhibit 6 (Ka), to the Executive Officer wherein he stated that due to ignorance of the Trust Rules he utilised some of the rooms at the rear for hostel purposes and since the students were small children and they had come from distant places, it would take some time in sending them to their homes. Therefore, the Principal requested the Executive Officer of the Trust to allow him two months' more time to run the hostel and that he would stop running the same from the 2nd of May, 1961.
8. On the basis of those letters, learned counsel urged that the Trust had always treated the Principal of the school as a tenant of the stalls allotted to him, even in the plaint which was filed on behalf of the Trust, Ramayan Saran, the Principal, had been treated as a tenant. Thus, a monthly tenancy was created between the parties and they were bound by the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 --hereinafter referred to as the Buildings Control Act. He submitted that Exhibits 1 and 2 being unregistered documents could not constitute a valid lease for one year under Section 107 of the Transfer of Property Act. He, therefore, argued that the suit for eviction of the defendant was not maintainable in the absence of a notice as contemplated under Section 106 of the Transfer of Property Act-- hereinafter referred to as the Act. In order to substantiate his contention that it should be presumed to be a monthly tenancy, learned counsel relied on the decision in Ram Kumar Das v. Jagdish Chandra Deo, AIR 1952 SC 23. In that case the defendant had executed a registered kabuliat, dated the 8th December, 1924, in favour of the Receiver who was in charge of the plaintiff's estate, by which he purported to take a settlement of the land in suit for building purposes for a period of ten years at an annual rent. The first payment of annual rent was made on 8-3-25 and the second payment was made on 16-3-26. Since then no further payments were made. The kabuliat not being an operative document under Section 107 of the Transfer of Property Act, the question was whether the tenancy created by implication of law was a monthly tenancy under Section 106 of the Act. Their Lordships held that the tenancy created by implication of law in favour of the defendant should be held to be from month to month since its inception in 1924. The tenancy not being for manufacturing or agricultural purposes, it could be regard-ed as a tenancy from month to month under Section 106, unless there was a contract to the contrary. The stipulation as to payment of annual rent would no doubt raise a presumption that the tenancy was from year to year but being contained in an inoperative document could not come in the way of raising a presumption under Section 106.
9. In my judgment, the above observation of their Lordships is not applicable to the facts of the instant case. It may be noted that their Lordships were considering a case in which rent was paid and the relationship of landlord and tenant existed. In the present case no rent was paid at all by the defendant for the stalls in question. In Ariff v. Jadunath Majumdar, 58 Ind App 91 = (AIR 1931 PC 79) the appellant having verbally agreed in 1913 with the respondent to grant him a permanent lease of a plot of land at Rs. 80 per month let him into possession. Shortly afterwards, the respondent with the knowledge and approval of the appellant erected a structure on the land at a cost of over Rs. 10.000. In December, 1918, the appellant definitely refused to grant the respondent the agreed lease and in 1923 sued to eject him. It was held that there being no lease made by a registered document as required under Section 107 of the Transfer of Property Act, the appellant was entitled to eject the respondent with liberty to him to apply to remove the structures. In this connection reference may also be made to Bastacolla Colliery Co. Ltd. v. Bandhu Beldar, AIR 1960 Pat 344 (FB), where a Full Bench of this Court had occasion to consider the effect of the possession of a lessee under a void lease. Their Lordships (at page 348) held:
"The possession of a lessee becomes wrongful from the time of his entry on the basis of a void or invalid lease, but if he pays rent which is accepted by the lessor, his possession ceases to be adverse to the lessor and a relationship of landlord and tenant comes into existence, in other words, he no longer remains a trespasser but becomes a tenant."
In the case which their Lordships were considering the lessee had subsequently paid rent and, therefore, he became a tenant. In the present case, as mentioned earlier, the defendant never paid rent to the plaintiff. Therefore, his possession was wrongful.
10. Mr. Sinha contended that even if the defendant's possession was unlawful, since the plaintiff framed its suit for eviction of the defendant under Section 11 of the Buildings Control Act, it was not maintainable in the absence of a notice as contemplated under Section 106 of the Act. Learned counsel placed reliance on a Full Bench decision of this Court in Niranjan Pal v. Chaitanyalal Ghosh, AIR 1964 Pat 401 where their Lordships observed that in the case of contractual tenancy the lease must be determined before the landlord can maintain an action for the tenant's eviction under Section 11 of the Buildings Control Act. It is for the plaintiff to mention in his plaint the fact of determination of the lease as one of the facts constituting the cause of action which he is required to give under Rule 1 of Order 7 of the Code of Civil Procedure. He has also to prove the fact. Where the plaintiff did not determine the tenancy by giving a notice under Section 106 of the Transfer of Property Act, his action under Section 11 of the Buildings Control Act is premature.
11. In my view, the above observation of their Lordships is of no avail on the facts of the present case. In the case which their Lordships were considering, rent was fixed. The two parts of the house in that case were separately let out to the defendant on a rental of Rs. 50/- per month for each part and since the defendant had defaulted, the suit was instituted but without serving a notice as contemplated under Section 106 of the Act. Therefore, their Lordships observed that in the absence of the notice action under Section 11 of the Buildings Control Act was premature. In the instant case the parties had not agreed upon the rate of rent for the stalls in question nor the defendant paid any rent to the plaintiff. In such circumstances, in my opinion, it is difficult to conceive that the relationship of landlord and tenant existed between the parties. Although the defendant was permitted to occupy the stalls for a term of one year, yet no valid lease was constituted by a registered document. That apart, for creation of a lease for a building payment of rent is essential. In the absence of payment of rent, no valid right of tenancy accrued to the defendant. Reference may be made to Section 105 of the Act which defines a lease:
"105. A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent."
From the above, it is apparent that without consideration of a price paid or promised etc., a lease cannot be created.
12. Even the various provisions of the Buildings Control Act indicate that rent is an essential ingredient for creation of a tenancy. Section 2 (f) of the Buildings Control Act defines 'tenant' to mean any person by whom, or on whose account, rent is payable for a building. However, it includes a person continuing in possession after the termination of tenancy in his favour. The latter portion of the definition is not applicable to the present case, because it is admitted case of the parties that from the very beginning the defendant did not pay any rent to the plaintiff. Reference may be made to Section 5 of the Buildings Control Act:
"5. Determination of fair rent of buildings in occupation of tenants-- (1) When, on application by the landlord or by the tenant in possession of a building or otherwise, the Controller has reason to believe that the rent of that building is low or excessive, he shall hold a summary inquiry and record a finding: (2) If, on a consideration of all the circumstances of the case, including any amount paid by the tenant by way of premium or any other like sum in addition to the rent the Controller is satisfied that the rent of the building is low or excessive, he shall determine the fair rent for such building."
The provision of the above section is attracted only when some rent is paid, which may be either excessive or low. It is not attracted when no rent is paid at all. It may be useful to refer to Section 6 also of the Buildings Control Act which is to the following effect:
"6. Determination of fair rent of buildings not in occupation of tenants-- The Controller may, on his own motion, and shall, on the application of the landlord or a prospective tenant and after making such inquiry as he thinks fit, determine the fair rent for any building not in the occupation of a tenant."
The above provision is applicable to those cases where the buildings are not in occupation of the tenants. Before occupying the stalls, the defendant could have approached the Controller for fixation of fair rent, if he so desired. If he would have got a fair rent fixed and if he would have paid rent accordingly, the right of tenancy could have been created in his favour, but the defendant never utilised the provisions contained either under Section 5 or Section 6 of the Buildings Control Act.
13. In the instant case, no tenancy at all was created. The defendant's possession over the stalls for a period of one year was merely permissive and thereafter he became a trespasser. Therefore, in my opinion, the suit for eviction of defendant was maintainable even in the absence of notices required under Section 106 of the Act. In Jiwan Rani Nai v. Mahabir Nai, Second Appeal No. 637 of 1963, D/-13-5-1968 (Pat), a Bench of this Court had occasion to consider a case in which the plaintiff had brought a suit for eviction of the defendants from a portion of a house on the ground that the defendants had defaulted to pay two months' rent, where as the case of the defendants was that they were not occupying the portion of the house as tenants, but they had occupied it in their own right and they had not paid any rent. The trial Court found that the suit was maintainable and the plaintiff's case was true that the house belonged to him. In spite of the said finding, the suit was dismissed on the ground that the relationship of landlord and tenant was not established between the parties, and there was nothing to show that the defendants were inducted into the house as tenants or they stipulated to pay any monthly rent. It was also held that no notice under Section 106 of the Transfer of Property Act was at all issued and as such the suit under the Bihar Buildings (Lease, Rent and Eviction) Control Act would not be maintainable. On appeal, the Additional District Judge affirmed the finding of the trial Court with certain modifications. Thereafter the plaintiff brought the second appeal to this Court. Their Lordships after reviewing various decisions including that of Niranjan Pal, AIR 1964 Pat 401 (FB) (supra), held that the suit was maintainable even in the absence of a notice under Section 106 of the Transfer of Property Act as there was no relationship of landlord and tenant existing between the parties and the possession of the defendants over the portion of the house was a permissive one.
14. After considering the various decisions referred to above, and those evidence on the record which were placed before us by learned Counsel for the parties, I find no reason to interfere with the finding of the Court below ordering eviction of the defendant from the stalls in question. Thus, there is no merit in the appeal which has been filed by Ramayan Saran.
15. Now I advert to consider point No. II which arises out of the appeal at the instance of the Patna Improvement Trust, Mr. Ray Paras Nath appearing for the appellant contended that the Court below ought to have decreed the arrears of rent as claimed by the plaintiff. He referred to Exhibit 1, the application filed by the defendant, in which it has been mentioned that the defendant was prepared to Day reasonable rent. He then invited our attention to Exhibit 2, the letter sent by the Executive Officer to the defendant, in which it was noted that the terms and conditions of letting out the stalls and also the monthly rental to be fixed by the Trust would be intimated to the defendant in due course. He submitted that from the said letter it was clear that the defendant left the matter of fixation of rent entirely in the hands of the plaintiff. Accordingly, the plaintiff by Resolution No. 143/61, dated the 31st May, 1961, fixed the rent including taxes of the stalls allotted to the defendant at the rate of Rs. 1034.17-P per month and the same was intimated to the defendant by letter (Exhibit 2 Ka) dated the 3rd July, 1961, which contained also a copy of the above resolution. By the said letter a demand of Rs. 5170.85-P was also made by the plaintiff from the defendant as being the total amount of rent due up to the 31st May, 1961, as per details mentioned therein. Learned Counsel submitted that it was clear from Exhibit 2, (Ka) that the rent was fixed at 50% less than the standard rate, because the Chairman had passed orders on Exhibit 1 that rent may be fixed at the concessional rate. He also referred in this connection to the evidence of Santjiv Jha (P.W. 1) who was examined as the sole witness on behalf of the plaintiff. He is the head clerk of the Patna Improvement Trust. He stated that by the said resolution the Trust fixed the rate of rent at 50% less than the standard rate. According to that resolution rent was calculated at the rate of 1034.17-P per month. He further deposed that till the date of institution of the suit the defendant did not pay towards rent a single farthing. He also referred to the evidence of Ramayan Saran (D. W. 1), the sole defendant himself. D. W. 1 stated in cross-examination that the Trust by a resolution fixed the rent at the rate of 50% of the standard rate and gave him information to that effect and he occupied the stalls on the 30th of December, 1960, and was in occupation of those stalls till the date of his deposition. In the circumstances, learned Counsel urged that there was no reason for the Court below in refusing to pass a decree for rent of the stalls which was occupied by the defendant, as per details given in Schedule II of the plaint.
16. In my view, the contention of learned Counsel cannot be accepted. P. W. 1 has stated in cross-examination that the rent was not fixed in the presence of Ramayan Saran. In Para 5 of the written statement filed by the defendant, it is clearly stated that the resolution of the Trust, dated the 31st May, 1961, was passed without any reference to the defendant and behind his back. He had no opportunity of placing his point of view in the matter and the rent was fixed ex parte. From the evidence of D.W. 1, in examination in chief, also it appears that he had not agreed to the rate of rent which was fixed by the said resolution. From exhibit Ka it appears that after the receipt of the letter Exhibit 2 (Ka) the Board of governors of the school held a meeting and it was unanimously decided to request the Patna Improvement Trust to reconsider its decision regarding the rent of the stalls allotted to the defendant. It is thus clear that at no stage the defendant had agreed to pay the rent so fixed by the resolution of the Board of the Trust. In the absence of agreement regarding the rate of rent, the plaintiff had no right to claim rent at the rate mentioned in Schedule II of the plaint. The plaintiff could have got the fair rent fixed under Sections 5 and 6 of the Buildings Control Act, but it never did so. No doubt, the plaintiff could have claimed damages or compensation from the defendant for being in unlawful occupation of the stalls, but it has not done so, instead it has claimed rent from the defendant. After considering all the evidence and the points urged on behalf of the appellant, in my judgment, the Court below has rightly refused to pass a decree for arrears of rent. I find no reason to hold otherwise.
17. In the result, the judgment and decree of the Court below are upheld and both the appeals are dismissed. In the circumstances of the case, both parties will bear their own costs of this Court.
B.N. Jha, J.
18. I agree that the two appeals should be dismissed but I like to add a few words. Rent is an essential ingredient of a lease under the Transfer of Property Act. This is a consideration for allowing the lessee to enjoy the property for the period of the lease. The parties may contract for the payment of rent but the amount of rent so contracted must be fixed and certain. Rent of premises, if governed by the Bihar Buildings (Lease, Rent and Eviction) Control Act, can also be fixed under Section 5 or 6 of the said Act, as the case may be. If the tenant is in possession of the building, application may be filed by the landlord or by the tenant before the controller for fixation of a fair rent for the building. The controller is also vested with the power under Section 6 of the Act to fix a fair rent for that building suo motu or on the application of the landlord or a prospective tenant if the building is not in possession of a tenant. In the present case, on the evidence adduced, it is not established that the parties themselves fixed any rent by contract for the premises in occupation of the defendant nor was any fair rent fixed by the controller under Sections 5 and 6 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. The defendant was allowed to take possession of the premises subject to fixation of rent in future by mutual agreement. No such agreement was ever arrived at. In such circumstances, it cannot be said that any rent as contemplated under Section 105 of the Transfer of Property Act was ever fixed. Therefore, there could not be a lease of the premises in favour of the defendant.
19. Apart from this, the matter could be considered from another point of view as well. The lease in the present case, purported to be granted, was for a period of one year. No registered document was ever executed between the parties as is provided under Section 107 of the Transfer of Property Act. It is true, as was held in AIR 1960 Pat 344 (FB), that when a registered document is required for the creation of a valid lease for a period of one year and more than one year and no such document is registered, a lease from month to month may be presumed to have come into existence, but it is subject to this that the lessee should have come in possession of the leasehold and paid rent for it. The defendant never paid any rent and, as such, no valid lease, even for month to month, came into existence. Therefore, in my opinion, no tenancy came into being and consequently there was no relationship of landlord and tenant between the parties. The possession of the defendant in respect of the suit premises remained only permissive.
20. The plaintiff has come with the story that the defendant was inducted into the premises on a monthly rental of Rupees 1034.17 Paise inclusive of taxes. This case has failed. Hence the plaintiff is not entitled to any decree for rent. Learned counsel for the plaintiff-appellant contended that the defendant was in possession of the premises and, as such, he is liable to pay compensation for the use and occupation. No such alternative case has been made out and no evidence as to the amount of compensation was ever adduced. Therefore, the plaintiff cannot be allowed to raise a new plea which has no foundation to stand. As the possession of the defendant is only permissive, no question of termination of the tenancy, as is contemplated under Section 106 of the Transfer of Property Act, arises in the present case and the plaintiff is entitled to oust the defendant from the premises in question. Therefore, the judgment and decree passed by the Court below have got to be upheld.