Karnataka High Court
Amar Transport Company vs Smt. Muthu Ganapathy on 23 May, 2005
Equivalent citations: ILR2005KAR4115, 2005(6)KARLJ252, AIR 2005 (NOC) 529 (KAR), 2005 A I H C 3868, (2005) 6 KANT LJ 252, (2005) 4 RECCIVR 340, (2006) 1 CIVLJ 268, (2005) 34 ALLINDCAS 906 (KAR), (2006) 1 CURCC 54, 2005 AIR - KANT. H. C. R. 1991, (2005) 2 RENCR 430, (2005) 4 ICC 667, (2005) 3 KCCR 2078
Author: Manjula Chellur
Bench: Manjula Chellur
JUDGMENT Manjula Chellur, J.
1. This appeal is filed against the judgment and decree in O.S. 5610/01 dated 18.08.2004. The appellant herein was a defendant before the Trial Court against whom the respondent herein filed a suit for delivery of vacant possession of suit schedule premises and also a direction for the payment of Rs. 10,000/- towards the arrears of rent apart from damages from the date of suit till date of possession etc.
2. The case of the plaintiff before the Trial Court was, the appellant herein became a tenant under a lease deed dated 1.12.99 on a monthly rent of Rs. 2000/-. Eviction petition No. 922/90 was filed for eviction of the appellant on the ground of bonafide use and occupation of the premises. But, however, said suit was dismissed as not maintainable. Right from the beginning, the appellant did not pay the rents and as on the date of filing of the suit, he was due in a sum of Rs. 40,000/- towards arrears of rent and after adjusting the arrears of rent from the advance paid by the tenant, still, the defendant/appellant was due in a sum of Rs. 10,000/- as on the date of filing of the suit. With these averments, he sought eviction of the tenant. Before filing the suit, a notice dated 20.2.01 was also issued to the defendant which was not replied.
3. As against this, the defendant, inter alia, appeared and contended that the suit itself was not maintainable as the plaintiff has suppressed the material facts. For many decades, he is carrying on the business in the suit schedule property as a tenant. All the rents with periodical enhancements as and when demanded by the respondent/ plaintiff was paid right from the time of predecessors in title of the plaintiff. The termination of tenancy is not in accordance with law and after expiryof lease period as per agreement dt. 1.12.99, the defendant continued to be in possession of the premises. For the best reason known to the plaintiff, two lease deeds came to be taken in respect of the entire premises and the appellant did not object for the same in order to maintain cordial relationship between the parties. A sum of Rs. 50,000/- was paid as advance and the appellant was to deduct a sum of Rs. 1000/- per month from January 2001 onwards out of the monthly rent of Rs. 2000/- till such time a sum of Rs. 30,000/- is adjusted towards the rent out of the advance amount, leaving balance of Rs. 20,000/- as security deposit. This would believe the claim of the plaintiff that the lease was only for a period of 11 months. The suit is premature, therefore, it deserves to be dismissed.
4. On the basis of the above pleadings, the following issues were framed:
a) Whether the plaintiff proves the termination of tenancy in accordance with law?
b) Whether the plaintiff is entitled for ejectment of suit property?
c) Whether the defendants prove that the suit is not maintainable as contended in written statement?
d) Whether the plaintiff proves that the defendant is in arrears of rent and damages of Rs. 10,000/- from the date of suit till the date of vacation of the suit premises?
e) To what decree/order?
5. On behalf of the plaintiffs and so also defendants, the parties were examined as PW-1 and DW-1 and several documents came to be marked as Ex.P. 1 to P.6 and Exs. D. 1 and D.2 respectively.
6. As could be gathered from the pleadings, the contention of the appellant is that the very termination of tenancy is not in accordance with law and as such the suit is not maintainable. For this contention, he advances arguments on several grounds. The first and foremost contention was of single premises and there cannot be two suits as it amounts to severance of the tenancy. Therefore, single suit ought to have been filed by the plaintiff. The next contention was Ex.D.1 the receipt for having received Rs. 50,000/- as advance would indicate that out of rent of Rs. 2000/- payable every month, a sum of Rs. 1000/- (out of advance amount of Rs. 50,000/-) has to be deducted till such time the balance of security deposit remain to be Rs. 20,000/- only. In other words, for 30 months, at the rate of Rs. 1000/- had to be deducted from the advance amount towards the payment of Rs. 2000/- rent per month and the other Rs. 1000/- had to be paid by the appellant/defendant. This adjustment of Rs. 1000/ - would continue for 2 1/2 years from 1.12.1999 till Rs. 30,000/- is adjusted, therefore, the lease was not for a period of 11 months as contended by the plaintiff. He further contends there is waiver of notice by acceptance of the rents subsequent to the notice of termination and therefore, the appellant becomes a tenant holding over. Learned Counsel for the appellant further places reliance on:
a) B.K. Narayana Iyengar v. H. V. Subba Rao and Anr., AIR 1958 Mysore 113
b) Ranjit Chandra Chowdhury (Dead) By His Legal Representatives v. Mohitosh Mukherjee (Dead) By His Legal Representative, C) Kapur Chand v. Kanjp, D) R. V. Bhupal Prasad v. State of A.P. and Ors., E) Ram Kumar Das v. Jagdish Chandra Deo, Dhabal Deb and Anr.,
7. The gist of the above decisions is as under:
There can be waiver of notice to quit Under Section 113 of T.P. Act if both the parties, i.e., who had issued the notice and the party who received the notice intentionally agree to waive the notice. One of the modes of proof of such agreement to treat the lease as subsisting would be payment of rent by the tenant and the acceptance of the same by the landlord. The consent or intention to treat the lease as subsisting on the part of both the parties to the lease could be either express or implied and acceptance of rent impliedly connotes such consent or intention. Even where the tenant sets up permanent tenancy or a lease for a particular period and is not able to establish it, he would not be debarred from putting forward the plea of waiver if he can establish that the landlord accepts rent subsequent to the expiration of period of tenancy.
8. The above decisions also refer to Section 106 of Transfer of Property Act. It was held in the case of Ram Kumar Das v. Jagadish Chandra Deo, Dhabal Deb and Anr. (supra) wherein rule of construction was to be considered i.e. it has to be applied when there is no period agreed upon between the parties. In such cases, the duration has to be determined by reference to the object or purpose for which the tenancy is created. Such rule applies not only to express lease of uncertain duration but also to leases implied by law which may be inferred from possession and acceptance of rent and other circumstances. It is further held in that case the tenancy was not for manufacturing or agricultural purposes. The object was to enable the lessee to build structures upon the land. In these circumstances, it could be regarded as a tenancy from month to month, unless there was a contract to the contrary. The question now is, whether there was a contract to the contrary in the present case? Mr. Setalvad relies very strongly upon the fact that the rent paid here was an annual rent and he argues that from this fact it can fairly be inferred that the agreement between the parties was certainly not to create a monthly tenancy. It is not disputed that the contract to the contrary as contemplated by Section 106 of T. P. Act need not be an express contract, it may be implied, but it certainly should be a valid contract. If it is no contract in law, the section will be operative and regulate the duration of the lease. It has no doubt been recognized in several cases that the mode in which a rent is expressed to be payable affords a presumption that the tenancy is of a character corresponding thereto. Consequently, when the rent reserved is an annual rent, the presumption would arise that the tenancy was an annual tenancy unless there is something to rebut the presumption. But the difficulty in applying this rule to the present case arises from the fact that a tenancy from year to year or reserving a yearly rent can be made only by registered instrument, as laid down in Section 107 T.P. Act, The Kabuliyat in the case before us is undoubtedly a registered document, but ex concesis it is not an operative document at all and cannot consequently fulfil the requirement of Section 107, T.P. Act.
9. In a case where originally tenant came into possession of the property in a lawful manner, but lease was determined by efflux of time, lessee continuing in possession thereafter in contravention of terms of lease and despite absence of acquiescence by lessor, such possession by the lessee neither legal nor lawful but he is only a tenant at sufferance. The assent of the landlord to the continuance of the tenancy after determination of tenancy would create a new tenancy. The possession of a tenant who is ceased to be a tenant is protected by law, although he may not have a right to continue in possession after termination of tenancy. His possession is juridical. It is nothing but a tenant at sufferance who wrongfully continues in possession after extinction of lawful title. The tenancy at sufferance does not create the relationship of landlord and tenant. Therefore, distinction must be drawn between a tenant continuing in possession after determination of lease without the consent of the landlord and the tenant doing so with the landlord's consent. Therefore, the tenant who continues in possession after determination of the lease without the assent of the landlord is a tenant by sufferance which is nothing but a tenancy at will by the assent of the landlord. But the relationship of landlord and tenant is not established until the rent was paid and accepted. The lessee holding over with the consent of a lessor is in a better position than a mere tenant at will.
10. As against this, the learned Counsel for the defendant/plaintiff refuting all the contentions of the appellant contends that the tenancy was split up in respect of entire premises into two parts at the instance of the lessee for his convenience sake as said at para 8 of Ex. P.2. He further submits there is no bar to split up tenancy, therefore, in view of two tenancies under two agreements, two receipts, two notices terminating the tenancy came to be issued and consequently, two suits are filed against the defendant/apellant. According to the learned Counsel, waiver of notice to quit cannot be raised at this point of time as there was no such contention before the Trial Court. Even if such contention is to be considered, in the absence of the appellant/tenant, establishing the waiver of notice as contemplated under law, the same cannot be considered. According to the learned Counsel Ex. D.1 and P.2 are contemporaneous documents and therefore, in view of express terms and conditions narrated at Ex. P.2, Ex. D. 1 cannot alter the situation. Further contends, if Ex. D.1 needs to be considered as contended by the appellant, it requires compulsory registration as it would contemplate lease for a period more than one year according to the appellant, therefore, Ex. D. 1 cannot be relied upon. He also relies upon Section 109 of T.P. Act regarding severance of tenancy and relies upon two judgments reported in Sardarilal v. Naryanlal, and Mohar Singh (Dead By Lrs) v. Devi Charan and Ors.,
11. The gist of these two cases is as under:
Though a landlord cannot split the unity and integrity of tenancy and recover possession of part of the demised premises of the tenant, Section 109 of T.P. Act provides a statutory exception to this rule and enables an assignee of the part of the reversion to exercise all the rights of the landlord in respect of the portion respecting which the reversion is so assigned subject, of course, to other covenants running with the land. Therefore, in a case where under a partition the co-owner and consequently his transfere became the exclusive owner of one of the shops, which came to the share of co-owner, question of splitting up the integrity and unity of the tenancy does not arise. Therefore, Section 109 applies when the lessor transfers the property leased or any part thereof or any part of his interest therein. When the transfer is in respect of the entire property leased, there is no difficulty, because transfere acquires all the rights of the lessor including the right to terminate the tenancy. Consequently, no difficulty would arise when a lessor transfer a part of his interest in the property leased.
12. With these arguments, let us proceed to consider the contentions of the parties.
13. Admittedly apart from this suit in question, one more suit in O.S. 5611/01 came to be filed against the very appellant by the respondent in respect of other half portion of the property. The subject matter in RFA 1257/04 (O.S. 5611/01) as per Ex. P.2 in measuring: East to West: 20 ft an North-South: 26 ft. in premises bearing No. 38 New No. 26/2, II Cross, Kalasipalyam New Extension, Bangalore-2 with the following boundaries:
E : Property in occupation of lessee (appellant) W: Private property.
N : 2nd Cross Road S : Property of Sri N.K. Bopiah, in occupation of M/s Vijayananda Roadlines.
14. The subject matter of property in R.F.A. 1256/04 in O.S. 5610/01 as per Ex.P2 is measuring: East to West: 20ft and North-Sourth : 26 ft. in premises bearing No. 38 New No. 26/2, II Cross, Kalasipalyam New Extension, Bangalore-2 with the following boundaries:
E : 2nd Main Road W: property of lessor in occupation of lessee (applt).
N : 2nd Cross Road S : Property of Sri N.K. Bopiah, in occupation of M/s Vijayananda Roadlines.
15. As a matter of fact, during the evidence of the appellant as DW-1, in cross-examination, he admits and accepts that two lease deeds were entered into between himself and the plaintiff and the lease period was only for 11 months. But now, according to him, it is one single tenancy and therefore, the landlord cannot split up the unity and integrity of the tenancy. With the knowledge of appellant, Ex. P.2 came into existence and he has signed the same being fully aware of the terms and conditions. There are two receipts marked as Ex.D1 in both the matters. It is also not denied by the appellant that he gave two separate advances under two separate receipts and two lease documents came to be executed which are marked at Ex.P.2 in both the matters. Similar defence is taken up in both the matters by the appellant that there was an agreement for adjustment of Rs. 1000/-every month out rent of Rs. 2000/- till a sum of Rs. 30,000/- came to be adjusted. In other words, this understanding of adjustment was in respect of both the portions taken on lease by the appellant and the adjustments are individual and independent. As a matter of fact, prior to the filing of the suits, eviction petitions came to be filed under H.R.C. proceedings and the same were disposed of as not maintainable in view of Section 31 of the Rent Control Act.
16. As a matter of fact, at Clause 8 of the agreement at Ex.P.2, it specifically says "lessee for his personal reasons requested the lessor to execute two lease deeds, although, for one godown premises in existence without partition having one rolling shutters". This would rather indicate both the parties understood when they entered into agreement of lease that two agreements must come into existence in respect of one premises though it has one entrance with one rolling shutter. In law, there is no bar or prohibition to give lease of one permises to different tenants. It is not a case where there is only one tenancy and landlord is splitting up the unity and integrity of the tenancy. The tenancy was split up at the very beginnig of the tenancy. In other words, if there were two tenants in respect of two different portions of the same premises, it would not be a bar to enter into such agreement of lease. Just because, the very same tenant is a tenant of two portions of the same premises, it will not result in splitting up the unity and integrity of tenancy. In the decisions referred to above relied upon by the learned Counsel for the respondent, even in respect of a portion of the premises which has fallen to the share of a co-owner who transfers the same to a transfore, the Apex Court held that the transferee of the share of co-owner can very well maintain litigation against the tenant seeking possession of that part of the premises. Therefore, Section 109 of the T.P. Act which is a statutory exception to the General Rule that unity and integrity of the tenancy cannot be split up, comes to the aid of the respondent. Strictly speaking, even assistance from this Section need not be taken as at the instance of the appellant herein two different lease deeds in respect of the same premises (two portions) came to be executed. Having demanded and understood that there has to be two lease agreements is respect of two portions of the same premises, it does not lie in the mouth of the appellant now to contend that filing of the two suits in respect of the same premises is not permissible. Therefore, the two suits filed by the respondent/plaintiff are maintainable and there is no splitting up of unity and integrity of the tenancy.
17. Coming to the question of termination of tenancy, the dispute between the parties is whether the tenancy is for 11 months as contended by the respondent or 2 1/2 years as contended by the appellant/defendant? Appellant relies on Ex.D.1 and the respondent relies on Ex. P.2. Section 107 of the T.P. Act reads as under:
Sec. 107: Leases how made:- A lease of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.
"All other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.
Where a lease of immoveable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee;
Provided that the State Government may, from time to time, by notification in the Official Gazette, direct that leases of immoveable property, other than leases from year to year or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession."
18. By reading this Section and also Section 17(d) of the Registration Act, if the lease is for a period exceeding one year, the document need to be compulsorily registered. Apparently, Ex.D.1 is not a registered document and no proper stamp duty is paid on the same. Ex.D1 and Ex. P.2 are dated 1.12.1999. Both have come into existence on the very same day. Execution of these two documents on the same day is not denied. As a matter of fact, Ex.D.1 is executed only by the plaintiff and whereas Ex.P.2 is executed by both the parties i.e. the plaintiff and defendant/tenant. The title of Ex.P.2 is agreement of lease and the title of Ex. D1 is Security Deposit receipt. The contents of Ex.D.1 do not refer to any other terms and conditions which are generally reduced to writing in an agreement of lease. It only referes to payment of advance and the adjustment of Rs. 30,000/ - from this advance towards monthly rent of Rs. 2000/- and the adjustment is Rs. 1000/- per month from the rent of Rs. 2000/-. It would come to 30 months i.e. 2 1/2 years. Except the understanding the adjustment of advance amount towards the payment of rent, nothing else is said in this document with regard to the terms and conditions of lease.
19. When we look into Ex.P.2 it enumerates the necessary terms and conditions of agreement of lease i.e. the duration of lease, how water and electricity charges are paid, restrictions on the sub-letting, user of the premises for a particular purpose and alterations to the structure of the premises. These conditions at Ex.P.2 would establish the fact that Ex.P.2 was intened to be an agreement of lease reducing the terms and conditions agreed between the parties when they entered into said agreement. At Clause No. 2 of this document, it reads as under:
The lessee have agreed to take on lease, on a monthly rent of Rs. 2000/- (Two thousand only) payable on or before 5th of every English calendar month regularly. The lease is for a period of 11 months only commencing from 1.12.1999.
20. This document Ex.P.2 does not refere to payment of Rs. 50,000/- as advance and so also the mutual understanding of adjustment of Rs. 1000/- per month towards the rent of Rs. 2000/-from the advance amount till the advance amount becomes Rs. 20,000/ - from Rs. 50,000/-. Therefore, Ex.D.1 must have come into existence to evidence the payment of advance of Rs. 50,000/-. and adjustment of rent i.e. Rs. 1000/- per month from advance amount. Ultimately it says what would be the security deposit that would be refunded at the time of vacating the godown premises, i.e. Rs. 20,000/-. At any stretch of imagination, this document cannot be understood to have enumerated any clause with regard to the duration or term of lease. Probably, in the absence of Ex.P.2 such a defence could have been raised by the appellant, but, for want of registration of the document, the same would not be considered. The fact remains, on the very same day. i.e., 1.12.99, Ex. P.2 also came into existence written on a stamp paper, signed by both the parties to the agreement. In this document, there is specific reference to the duration or term of lease i.e. 11 months. These two doeuments have to be read together. As a matter of fact, when the termination notice was sent, no reply was sent by the appellant/tenant. There is no clause as such for continuation of lease under Ex.P.2. Learned Counsel for the respondent has rightly argued that Ex.P.2 and Ex.D.1 are contemporaneous documents and in the light of the appellant accepting and admitting the execution and contents of Ex.P.2, Ex.D.l do not survive to read the term or the duration of the lease except with regard to the adjustment of rents. At any stretch of imagination, Clause 2 of Ex.P.2 cannot be altered with the existence of Ex.D.1.
21. Then coming to the waiver of notice, according to the plaintiff, the tenancy for 11 months commenced from 1.12.1999 till 1.11.2000. According to the plaintiff, right from the beginning of the lease i.e. 1.12.1999. the appellant did not pay the rent, therefore, they have claimed Rs. 10,000/- towards arrears of rent as the appellant was due in a sum of Rs. 40,000/- at the rate of Rs. 2000/- per months as on the date of filing of the suit. As a matter of fact, the contention of waiver of notice to quit was not at all raised by the appellant before the Trial Court, however, it is a legal plea, therefore, the same is taken into consideration. In order to raise such plea, the tenant must be able to establish that there was either express or implied consent or intention on both the parties to continue the tenancy subsequent to the termination of tenancy i.e. quit notice which is marked at Ex. P.3 dated 20.2.2001. Even as per the contention of the appellant, in terms of Ex.D.1, Rs. 1000/- is to be adjusted from the advance amount towards the rent of Rs. 2000/- per month. This would mean, the tenant has to pay Rs. 1000/- per month as rent in order to make the rent Rs. 2000/ - per month. The tenant is not able to establish such implied continuation of tenancy so as to waive the notice to quit subsequent to Ex.P.3. Reply notice was also not sent to Ex.P.3. Therefore, one has to presume that he accepted the averments mentioned at Ex.P.3. He contested the matter only by appearing in the suit as a defendant. That being the case, now, it not open to him to contend that there is waiver of notice to quit and therefore, termination is not in accordance with law.
22. In the above situation, the status of the appellant is not a tenant holding over who has better status than the tenant at sufferance. When once the tenancy is terminated by quit notice at Ex.P.3, as the tenancy is month to month, for a period of 11 months as per Ex.P.2, the notice of termination is in accordance with law. As a matter of fact, the suit is filed nearly 4 or 5 months after the quit notice. The appellant is not even definite whether he has replied the termination notice or not. The contents of Ex.P.3 are very much in accordance with provisions of Section 106 of the T.P.Act.
23. Under these circumstances, the Trial Court was justified in stating that termination of tenancy was in accordance with law and that the suit was maintainable.
24. As the tenancy was only for a period of 11 months, by efflux of time, the tenancy came to an end. There is no material whatsoever forthcoming on behalf of defendant as to why he did not even pay the admitted rent in order to hold that the tenancy continued. When once the tenancy comes to an end and if the notice of termination is in accordance with law. I do not find any good ground why the plaintiff's suit for ejectment need not be allowed. The Trial Court after assessing the documentary and oral evidence on record, has rightly come to conclusion that in the absence of continuation of tenancy after expiry of lease period under Ex.P.2, the plaintiff was entitled for possession of the suit property.
25. There is nothing on record to show, apart from paying Rs. 50,000/- as advance which is not denied by the plaintiff, rents were regularly paid at the rate of Rs. 2000/- per month. The plaintiff, both in his notice and plaint, has sought for arrears of rent and payment of damages @ Rs. 2000/- per month till the date of suit. Right from 1.12.1999 onwards, no rent was paid by the appellant/tenant. As on the date of filing of the suit, after deducting the arrears of rent of Rs. 40,000/- out of the advance amount, the defendant was due Rs. 10,000/- towards arrears of rent and the Trial Court has rightly held the said Rs. 10000/- is payable. So also with regard to damages, the Trial Court has rightly held that Rs. 2000/- per month from the date of suit till the date of delivery of vacant possession of the property, the plaintiff would be entitled as damages from the appellant/tenant.
26. Viewed from any angle, the reasoning given by the trial court does not warrant any interference by this Court with the judgment and decree of the Trial Court. Accordingly, the appeal is dismissed with costs throughout.
27. The appellant/tenant shall deliver vacant possession of the property within two months from today.