Patna High Court
Banarshi Lal Laroiya vs Jatadhari Das And Anr. on 20 March, 1969
Equivalent citations: AIR1971PAT110, 1969(17)BLJR965, AIR 1971 PATNA 110, 1970 PATLJR 312, ILR 48 PAT 454, 1969 BLJR 965, 1969 RENCR 771, 1969 RENCJ 587
JUDGMENT Tarkeshwar Nath, J.
1. This appeal by defendant No. 1 arises out of a suit for eviction of defendants 1 to 3 from a portion of the premises described in Schedule B of the plaint and also for arrears of rent of Rs. 252 for the period commencing from January 1958 to December, 1960 at the rate of Rs. 7 per month and Rs. 12 as interest.
2. The case of the plaintiffs was that they along with their cosharers (pro forma defendants 4 to 8) were the owners of the premises described in Schedule A of the plaint, but by mutual partition of the said premises consisting of two rooms with two varandahs described in Schedule B along with other parts and properties fell to the exclusive share of the plaintiffs. Defendants 1 to 3 were the tenants of the plaintiffs in respect of the premises described in Schedule B on a monthly rent of Rs. 7. Defendants 1 to 3 neither paid nor remitted the rent since the month of October, 1955 in spite of repeated demands, but as the rent due for the previous period was barred by limitation, the plaintiffs claimed rent for the period commencing from January, 1958 only and the account thereof was mentioned in Schedule C of the plaint. The condition of the building in question had materially deteriorated owing to acts of waste and negligence of defendants 1 to 3, as they did not repair the said building. Those defendants had thus committed a breach of the terms of the tenancy. The plaintiffs thus instituted the suit giving rise to this appeal for the reliefs indicated above.
3. Defendant No. 1 contested the suit on grounds, inter alia, that there was no relationship of landlord and tenant between the plaintiffs and himself and as such the question of payment of rent or any default did not at all arise. The condition of the building in question has not deteriorated and, there being no tenancy at all, it was absolutely false to allege that defendants 1 to 3 had committed any breach of the terms of the tenancy. Defendant No. 1 further alleged that the premises in question belonged to one Parbati Dasi, widow of Panchanan Das, who had sold the same to Ishwar Das Laroi-ya, father of Defendants 1 to 3, by a sale deed dated 15-7-1944 for a sum of Rs. 500. In this manner, the father of those defendants came in possession of the said premises and, after his death in December, 1947, the defendants came in possession in their own rights.
4. The learned Additional Munsif held that defendants 1 to 3 were the tenants of the plaintiffs and they had defaulted in the payment of the rent, as alleged by the plaintiffs. He further found that the condition of the portion of the building from which eviction was sought for had deteriorated by acts of waste and negligence, and as such they were liable to be evicted under Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act. He further accepted the case of the plaintiffs that they were entitled to a decree for the house-rent as claimed. In view of these findings, he decreed the suit in part and directed defendants 1 to 3 to vacate the suit premises within thirty days of the judgment and to give vacant possession thereof to the plaintiffs. He allowed the claim for rent to the extent of Rs. 252.
5. Defendant No. 1 being aggrieved by the said decree, filed an appeal, but he was unsuccessful and the appeal was dismissed. Hence, he has filed this second appeal.
6. Learned Counsel for the appellant submitted that the tenancy in question not having been determined by giving a notice under Section 106 of the Transfer of Property Act, the plaintiffs had no cause of action for this suit, so far as eviction was concerned, and that relief ought not to have been granted to the plaintiffs in the present case. To support this contention, he referred to Niranjan Pal v. Chaitanyalal Ghosh, AIR 1964 Pat 401 (FB). It was held in that case that the lease must be determined before the landlord could maintain an action for the eviction of a tenant under Section 11 of the aforesaid (Control) Act and it was 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 was required to give under Rule 1 of Order VII of the Code of Civil Procedure. Moreover, the plaintiff-landlord had to prove that fact, and if he had not done that it was manifest that the defendant could take the point regarding non-determination of the tenancy for the first time in second appeal.
In the present case, it is clear that notice under Section 106 of the Transfer of Property Act was not given before the institution of the present suit for eviction; in other words, the tenancy was not determined and, therefore, there was no occasion at all to mention in the plaint that such a notice was given and the tenancy was determined in that manner. The position thus is that, according to the decision of the Full Bench, the suit for eviction is premature. The learned Additional District Judge, however, took the view, relying on Abdul Rahim v. Md. Azimuddin, AIR 1965 Pat 156, that defendant No. 1 having denied in his written statement the relationship of landlord and tenant between the plaintiffs on one hand and himself on the other, no defence on the ground of absence of notice for termination or determination of the lease was available to him during the trial. In other words, he held that defendant No. 1 could not be allowed to raise that plea in the appeal before him. He thus held that the suit giving rise to the appeal was maintainable. Learned counsel for the appellant submitted that the facts in the case of Abdul Rahim, AIR 1965 Pat 156 were entirely different and the suit there was filed on the ground of forfeiture of the tenancy, and hence it was held that the notice under Section 106 of the Transfer of Property Act was not at all required to be given.
7. Learned counsel for the plaintiff-respondents supported the view taken by the learned Additional District Judge and pointed out that the plaintiffs in this case as well had alleged in their plaint that the defendants had committed a breach of the terms of the tenancy and hence they were liable to be evicted. Before considering the various averments in the plaint it is essential to refer to the case of Abdul Rahim, AIR 1965 Pat 156. Mahapatra, J., who delivered the leading judgment in that case himself observed as follows:
"The present suit, though for eviction of the defendant, was on the ground of forfeiture of the lease and not merely for default in payment of rent. The plaintiff stated the relevant conditions of the lease, breach of which involved forfeiture of the tenancy. Reading the plaint as a whole, it has to be taken as a suit for realisation of arrears of rent and for eviction of the tenant on the ground of forfeiture. On forfeiture, the right to possession accrued to the plaintiff. But that did not give him the right to recover possession from the defendant. There is a difference between those two rights. In some cases they may accrue at one and the same time but in other cases at different times. On account of Section 11 of the Bihar Buildings Control Act, the right to recover possession could accrue to the plaintiff only when a decree for eviction is passed against the defendant. The cause of action for the suit was the accrual of the right to possess the suit premises on forfeiture."
Therefore, his Lordship referred to the provisions of Section 111 of the Transfer of Property Act and held that the suit for possession giving rise to that appeal having been based upon forfeiture, and both the parlies as well as the Courts below having treated the suit to be of that nature, there was no necessity for the plaintiff to state categorically about the performance of the conditions precedent for the forfeiture, inasmuch as those conditions should be implied in his pleading, in accordance with the provisions of Rule 6 of Order VI of the Civil Procedure Code. The Full Bench decision of this Court in the case of Niranjan Pal, AIR 1964 Pat 401 was referred to by His Lordship, and then there was an observation by him that if in a case of ejectment the defendant set up his own title as against that of the lessor and contested the suit, no defence on the ground of absence of notice for termination or determination of the lease was available to him during the trial, and he could much less be allowed to raise that plea in a second appeal. The suit there for eviction of the defendant being on the ground of forfeiture of the lease and not merely for default in the payment of rent, it was hardly necessary to consider the effect of not giving the notice under. Section 106 of the Transfer of Property Act; and with great respect I may say that the decision with regard to the non-availability of the plea regarding the absence of notice in the event of the defendant denying the title of the plaintiff-landlord in the written statement filed by him in the suit was in the nature of obiter.
I had occasion to consider these observations of Mahaparra, J., in Ramayan Prasad v. Mt. Gulabo Kuer, AIR 1967 Pat 35 and I pointed out that in the case of Abdul Rahim, AIR 1965 Pat 156 relief for eviction had been sought for on the ground of forfeiture and the necessary facts indicating forfeiture were stated in the plaint of that suit. As regards the denial by the defendant in the written statement itself about the title of the plaintiff-landlord, I took the view that if the title of tie landlord had been denied by the tenant in the suit for ejectment, that could not avoid the necessity of the notice under Section 106 of the Transfer of Property Act. I would refer once again to the case of Unhamma Devi v. Vaikunta Hegde, (1894) ILR 17 Mad 218, and the relevant observations in that case were as follows:
"Nor is there any doubt that the tenant forfeits this right to notice by denying the landlord's title prior to suit. It is also settled law that the denial of title for the first time in the suit does not disentitle the tenant to notice for the reason that the plaintiff is bound to show that at the time of suit he had a complete cause of action; and a subsequent denial of title, even if false, does not release the landlord from proving his case or amount to a waiver by the defendant of his right to notice, Subba v. Nagappa, (1889) ILR 12 Mad 353."
I have to reiterate the conclusion arrived at in that case that the denial of the relationship of landlord and tenant in the writ-ten statement itself for the first time could not relieve the plaintiff-landlord from the obligation of giving the notice under Section 106 of Transfer of Property Act before the institution of the suit for eviction. This view can be supported in the following manner. According to the decision of the Full Bench in the case of Niranjan Pal, AIR 1964 Pat 401, it is necessary to determine the lease before the institution of the suit by giving a notice under Section 106 of the said Act. It is only when the lease had been determined in that manner that the plaintiff gets a cause of action for the suit for eviction. If the said notice has been given, then the plaintiff has to state that fact in the suit and he has to prove it. In case there was no denial of the relationship of landlord and tenant before the institution of the suit for eviction, the landlord has to comply with the requirements of Section 106 of the Transfer of Property Act and then only he can institute a suit for eviction.
In the present case, there was no such denial prior to the institution of the suit and the denial came for the first time in the written statement of defendant No. 1. This denial however, is of no consequence, inasmuch as the plaintiffs had no cause of action for this suit. It is incumbent on the plaintiff in such cases to show that on the date of the suit he had a complete cause of action. In Maharaja of Jeypore v. Rukmani Pattamahadevi, AIR 1919 PC 1, it was observed that the denial in the suit would not work a forfeiture of which advantage could be taken in that suit, because the forfeiture must have accrued before the suit was instituted. In that case, there was no denial by matter of record before the institution of the suit giving rise to that appeal.
8. Learned Counsel for the plaintiff-respondents submitted that, on examining the various statements made in the plaint of the present suit, it was clear that the plaintiffs had alleged that there was a forfeiture of the tenancy. It is true that the plaintiffs alleged in paragraph 5 of their plaint that the condition of the said building had been materially deteriorated owing to acts of waste and negligence of the principal defendants 1 to 3, as they had not taken up the repairs that they were bound to do, and in paragraph 6 they alleged that those defendants had themselves committed breach of the terms of the tenancy. But they have not alleged at all that there was any agreement between the plaintiffs and defendants 1 to 3 that if the defendants did not take up the repairs, the plaintiffs would have the right of re-entry.
Section 111 (g) no doubt provides For determination of a lease of immoveable property on the ground of forfeiture and there can be forfeiture in case the lessee breaks an express condition which provides that on breach thereof, the lessor may re-enter, but the plaintiff-landlord or the plaintiff-lessor has to allege that there was an express condition that in case of breach of the terms of the tenancy, he could have the right of reentry. This fact has not been at all alleged in the plaint, and as such the defendant was not called upon or could not be called upon to meet such a case. Learned Counsel, however, relied on the findings arrived at by the trial Court and the lower appellate Court. He pointed out that the trial Court came to a definite conclusion that the defendants were liable to eviction under Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act on the ground of non-payment of rent and also for materially deteriorating the condition of the building by acts of waste and negligence.
The lower Appellate Court observed that the finding of the trial Court about defendant No. 1 "having indulged in acts which had resulted in deterioration of the portion occupied by him" had not been challenged, and as such that Court held that the suit had rightly been decreed by the trial Court. It is quite correct that it has been found by the Courts below that the condition of the building had deteriorated by acts of waste and negligence, but there is no finding that it was one of the terms of the tenancy that if the condition of the building deteriorated on account of the negligence of defendants 1 to 8, the plaintiffs would have the right of reentry. There was no occasion even for such a finding, inasmuch as the plaintiffs did not make out that case in their plaint.
In this connection, it is necessary to point out that even under Section 11 (1) (b) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, a tenant is liable to be evicted from a building if the condition of that building materially deteriorated owing to acts of waste by or negligence or default of, the tenant. Reading paragraphs 5 and 6 of the plaint, I am of the view that material deterioration in the condition of the building was alleged, as envisaged in Section 11 (1) (b) of the said Act, and the plaintiffs did not make out a case of forfeiture of the tenancy, as contemplated by Section 111 (1) (g) of the Transfer of Property Act. In fact, the finding of the trial Court, already referred to above, was in terms of Section 11 (1) (b) itself. It is thus quite clear that the plaintiffs in the present case cannot take any assistance from the decision in Abdul Rahim's case, AIR 1965 Pat 156.
9. While I was proceeding with the Judgment, learned Counsel for the appellant drew our attention to the case of Deo Saran Sahu v. Ram Das Sahu, 1967 BLJR 574 (575) in support of his contention that the notice for determination of the tenancy was not necessary. But it appears from the facts of the case relied upon by him that on the default of the defendants in payment of the rent the plaintiff there at first gave a notice on 11-8-1954 and in reply to the same the defendants challenged the title of the plaintiff on 26th August, 1954, as landlord of the house, and they claimed that they were the co-owners of the same. In view of that disclaimer the plaintiff did not think it necessary to give any further notice to determine the lease and instituted the suit giving rise to that appeal for eviction, recovery of ar-rear of rent and damages.
It further appears that the learned Counsel appearing for the appellants in that case had fairly conceded that notice to quit under Section 106 of the Transfer of Property Act was not necessary when the tenant had denied the landlord's title before the institution of the suit. The position can be summarised in the following manner. If the disclaimer is before the institution of the suit for eviction by denial of the plaintiff's title as landlord, then the question of notice under Section 106 would hardly arise. But in the present case there was no denial of title of the plaintiffs as landlords before the institution of the present suit which has given rise to this appeal, and hence it was necessary to determine the tenancy by giving the said notice. I am thus of the view that the decision relied upon cannot improve the case of the plaintiff-landlords.
10. Learned counsel for the appellant drew our attention to Abdul Sattar Mian v. Kailash Prasad, AIR 1966 Pat 93 in which Sahai, J., following the decision of the Full Bench in Niranjan Pal's case, AIR 1964 Pat 401 held that the lease in that case not having been legally determined, the suit for eviction under Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act was premature. For the reasons given above, the suit for eviction must be held to be premature and that relief cannot be allowed to the plaintiffs. The plaintiffs were however, entitled to a decree for rent, as claimed. It appears that plaintiff No. 2, who was respondent No. 2, died during the pendency of this appeal but his heirs have been substituted in his place.
11. In the result, the appeal is allowed in part and the judgments and decrees of the Courts below are modified to this extent that the claim for eviction of defendants 1 to 3 is refused and plaintiff No. 1 and the substituted heirs of plaintiff No. 2 will be entitled to the costs of the trial Court and the lower appellate Court, as against defendant No. 1 so far as the claim for arrears of rent was concerned. The judgments and decrees are affirmed in other respects.
12. Parries will bear their own costs so far as this appeal is concerned.
Dutta, J.
13. I agree. I would like to add a few words. A lessor as such is not entitled to bring a suit for eviction as against a lessee so long as the lease subsists and has not terminated. Clauses (a) to (h) of Section 111 of the Transfer of Property Act provides the various ways and the various circumstances in which a lease of immovable property is determined. Under Clause (h), a lease can be determined on the expiration of a notice to determine the same or to quit, or of intention to quit, the property leased, duly given by either party to the lease. Under this clause, both the lessor and the lessee have a right to determine the lease by giving a notice in accordance with the provisions of Section 106 of the Act, but there has been some curtailment of this right in view of the provisions of Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. Mere failure to pay rent or merely causing deterioration of the building does not ipso facto entitle the landlord to bring a suit for eviction, unless the lease has been determined in accordance with the provisions of Section 111 of the Transfer of Property Act.
When there is either non-payment of rent or any material deterioration of the leasehold, the landlord may determine the lease by following the procedure laid down in Clause (h) of Section 111 by issuing a notice in accordance with law. In certain cases such nonpayment or causing material deterioration of the leasehold may also result in forfeiture of the tenancy in accordance with the provisions of Clause (g) of Section 111. Under this clause, a tenancy is determined by forfeiture in case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter, or in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself, or the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event. Hence, if there is an express term in the contract that on non-payment of rent or on causing any material deterioration of the building the lessor would be entitled to re-enter, such non-payment of rent or causing of material deterioration of the building may result in forfeiture of the tenancy.
This clause is however subject to the provision that in any such case the lessor or his transferee must give notice in writing to the lessee of his intention to determine the lease. It would follow, therefore, that in a case where an ejectment of the lessee is claimed on the ground of forfeiture, there can be no question of issue of a notice under Section 106 of the Transfer of Property Act, but where the ejectment is claimed not on the ground of forfeiture nor on any of the grounds mentioned in Clauses (a) to (f) of Section 111, the landlord will be entitled to bring a suit for ejectment only when the lease is determined under Clause (h), i.e., on the expiry of a notice in accordance with Section 106 of the Transfer of Property Act. Hence, in cases not governed by Clauses (a) to (g), the cause of action for the landlord in bringing a suit for ejectment must be on the basis of determination of the tenancy by issue of the required notice under Section 106, and the mere fact that there has been non-payment of the rent or any material deterioration of the building by the lessee does not entitle the landlord to institute any such suit.
That being the position, the mere fact that the defendant had raised a plea denying the landlord's title does not cure the defect regarding the maintainability of the suit on the ground that there has been no determination of the tenancy itself by issue of proper notice under Section 106 of the Transfer of Property Act. In the circumstances, the mere fact that the defendant did not take any specific plea in the written statement about non-service of the notice under Section 106 and had merely raised a plea denying the title of the plaintiffs and setting up his own title to the property did not debar him from disputing the maintainability of the suit itself on the ground that the facts as mentioned in the plaint do not show that there has been any determination of the tenancy by issue of a notice under Section 106 of the Transfer of Property Act. I, therefore, agree with my learned brother that the contention that it is not open to the defendant to raise the plea that there has been no determination of the tenancy on account of the non-service of notice under Section 106 is quite untenable.