Dattonpant Gopalvarao Devakate Vs.
Vithabrao Maruthirao Janagavai, [1975] INSC 88 (3 April 1975)
UNTWALIA, N.L.
UNTWALIA, N.L.
KRISHNAIYER, V.R.
CITATION: 1975 AIR 1111 1975 SCR 67 1975 SCC
(2) 246
CITATOR INFO :
O 1979 SC1745 (16) RF 1980 SC1253 (3) R 1980
SC1422 (7) RF 1991 SC 744 (10) RF 1992 SC1696 (5)
ACT:
Transfer of Property Act (4 of 1882),
Sections 106, 110 and 111-Scope of.
HEADNOTE:
The appellant was tenant under the
respondent's predecessor for a period of one year tenancy commencing from April
9, 1945. The respondent purchased the property in August, 1968 and the
appellant became his tenant. On November 19, 1968 the respondent gave notice to
the appellant terminating his tenancy and asking him to deliver possession by
December 8 1968. Thereafter he filed an application for eviction of the
appellant under the Mysore Rent Control Act, 1961. The trial court dismissed
the application but the first appellate court allowed the appeal and the High
Court confirmed the order in revision.
In appeal to this Court it was contended,
inter alia, that there was no valid notice terminating the tenancy.
Allowing the appeal to this Court,
HELD : (1) There are no grounds justifying
the interference with the findings of fact recorded by the first appellate
court and the High Court that the respondent required the premises reasonably
and bona fide for his personal occupation, and that no hardship would be caused
to the tenant by passing the decree.
(2) The lease was not for a manufacturing
purpose and the holding over by the appellant under s. 1 1 6 of the Transfer of
Property Act created a month to-month tenancy terminable by 15 days notice
ending with the tenancy month given under s. 106 of the Transfer of Property
Act. [70B].
(3)Under s. 110 of the Transfer of Property
Act, in computing the period of one year the date of commencement of the
tenancy, that is, April 9, 1945, had to be excluded.
Therefore, the one year's tenancy ended on
April 9, 1946.
By holding over the tenancy from
month-to-month started from April 10, 1946 ending on the 9th day of the
following month.
Therefore, the view taken by the first
appellate court and by the High Court that the one year's tenancy ended on the
8th April, 1946 and hence the monthly' tenancy started from the 9th day of the
month ending on the 8th day of the following month is clearly erroneous in law.
That being so there was no valid and legal termination of the contractual
tenancy. [70 E, F & H].
Benoy Krishna Das and others v. Salsiccioni
and others 59, Indian Appeals, 414, applied.
(4)The appellant was a contractual tenant who
would have become a statutory tenant within the meaning of s. 2 (r) of the
Mysore Act if he would have continued in possession after the termination of
the tenancy in his favour. Without termination of the contractual tenancy by a
valid notice or other mode set out in s. Ill of the Transfer of Property Act,
it was not open to the landlord to treat the appellant as a statutory tenant
and seek his eviction without service of a valid notice to quit. [71 D].
Ganga Dutt Murarka v. Kartik Chandra Das and
others [1961] 3 S.C.R.813 and Pooran Chand v. Motilal and others [1963] 2
Suppl. S.C.R. 906, referred to.
68
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1180(N) of 1974.
Appeal by special leave from the judgment and
order dated the 29th March, 1974 of the Karnataka High Court in C. Revn.
Petn. No. 1054 of 1973.
V. S. Desai and R. B. Datar for the appellant
Y. S. Chitale, P. C. Kapur and Y. N. Ganpule, for the respondent.
The Judgment of the Court was delivered by
UNTWALIA, J.-The defendant-appellant in this appeal by special leave was a
tenant of the suit premises situated in the town of Hubli when the
plaintiffs-respondent purchased the property from the original owners by two
sale deeds executed in August, 1968. The appellant thereafter became a tenant
under the respondent. The latter gave a notice purporting to terminate the
former's tenancy and thereafter filed an application under section 21(1) (a)
and (h) of the Mysore Rent Control Act, 1961-hereinafter referred to as the
Act, for his eviction from the suit premises consisting of two shops. The
appellant resisted the application for eviction on several grounds. The Trial
Court dismissed it but on appeal by the landlord the District Judge allowed the
application for eviction. The tenant filed an application in revision under
section 50 of the Act in the Karnataka High Court. The High Court dismissed the
revision application. Hence this appeal.
The issue as to the appellant's liability to
be evicted on the ground mentioned in clause (a) of sub-section (1) of section
21 of the Act was not pursued and eventually given up. The learned Additional
Munsif who tried the application in the first instance held against the
respondent on the question of the premises being reasonably and bonafide
required by the landlord within the meaning of clause (b).
He also held that having regard to all the
circumstances of the case greater' hardship would be caused by passing a decree
for eviction than by refusing to pass it. In that view of the matter also as
provided in sub-section (4) of section 21, the Trial Court refused to pass a
decree. It further held that the lease was for a manufacturing purpose or at
least the dominant purpose was a manufacturing one, it was a yearly lease and
could not be terminated by less than 6 months notice or in any view of the
matter the notice given even treating the tenancy to be a monthly one was
illegal and invalid.
The learned District Judge in appeal has
reversed all the findings of the Trial Court. He has held that the landlord
required the premises reasonably and bonafide for occupation by himself and
that no hardship would be caused to the tenant by passing a decree for
eviction. He also held that the lease was not for a manufacturing purpose nor a
yearly one. The notice terminating the monthly tenancy was good and valid. The
High Court in revision has affirmed the view of the Appellate Court on all the
controversial issues.
69 Mr. V. S. Desai, learned counsel for the
appellant urged three points in support of this appeal :
(1) That the findings of the lower Appellate
Court and the High Court in regard to the reasonable and bonafide requirement
of the suit premises for occupation by the landlord are vitiated in law.
(2) The finding on the question of
comparative hardship of the landlord and the tenant has been recorded by
committing errors of law.
(3) That the notice terminating the tenancy
was invalid because the lease was a yearly one being for a manufacturing purpose
and even if the tenancy be a monthly one, the notice was not in accordance with
law.
Mr. Y. V. Chitaley controverted the
submissions made on behalf of the appellant and added in the alternative that
the appellant was a statutory tenant and hence no notice was required to be
given before seeking a decree for eviction against him.
The appellant had taken the suit premises on
rent for a period of one year from the respondent's predecessors-in interest by
a written document Ext. P-12 dt. 15-6-1945.
The tenancy commenced from 9-4-1945. The
respondent purchased the property in August, 1968 and gave a notice on
19-11-1968 which was served on the appellant on 21-11-1968 terminating his
tenancy and asking him to deliver possession by the 8th December, 1968. We have
been taken through the portions of the judgments of all the three courts below
and the relevant pieces of documentary and oral evidence adduced by the
par-ties. On the question of the respondent requiring the suit premises
reasonably and bonafide for his personal occupation as also on the point of
comparative hardship two views were possible on the materials in the record of
this case. A view in favour of the tenant was taken by the Trial Court but
against him by the Appellate Court. The findings of fact recorded by the
Appellate Court were not found to be such by the High Court as to justify the
exercise of its revisional power under section 50 of the Act. It is true that
the power conferred on the High Court under section 50 is not as ,narrow as the
revisional power of the High Court under section 115 ,.of the Code of Civil
Procedure. But at the same time it is not wide enough to make the High Court a
second court of first appeal. We do not think that there are such pressing
grounds in this case which would justify our upsetting the views of the High
Court confirming those of the lower Appellate Court. It is not necessary to
discuss the first two points urged on behalf of the petitioner in any detail
and we reject them on the short ground mentioned above.
Coming to the question of notice we would
like to state at the outset that on the basis of the evidence in the case the
Appellate Court took the view that the lease was not for a manufacturing
purpose. The lease was for one year which expired on 9-4-1946. The tenant held
over under section 116 of the Transfer of Property Act. 'Ext. P-12 did not
mention the purpose of the lease. The learned 70 District Judge was of the
opinion that the appellant started manufacturing Soda in a small portion of the
demised, premises after the lease for one year was taken. In any view of the
matter the dominant purpose of the lease was not a manufacturing one but was
the sale of aerated water. The High Court has affirmed this finding in
revision. We do not feel inclined to upset the findings of the two courts below
in this regard. If the purpose of the lease was not a manufacturing one, then
the holding over under section 116 of the Transfer of Property Act created a
month-to-month tenancy terminable by 15 days notice ending with the tenancy
month given under-section 106 of the said Act.
The appellant, however, must succeed on the
last submission made on his behalf that even so, the notice was invalid. As
already stated the notice purported to terminate the tenancy by the 8th
December, 1968 treating the month of tenancy as commencing from the 9th day of
a month and ending. on the 8th day of the month following. The requisite period
of 15 days was given but the defect in the notice was that it did not expire
with the end of the month of the tenancy. The end of the month of the tenancy
was the 9th day and not the 8th day as wrongly held by the High Court affirming
the view of the lower Appellate Court.
Under Ext. P-12 the appellant agreed to pay
Rs. 600 as rent for one year from 9-4-1945. The tenancy obviously, therefore,
commenced from that date. That being so, under section.,110 of the Transfer of
Property Act in computing the period of one year the date of commencing i.e.
the 9th day of April, 1945 had to be excluded. The one year's tenancy ended on
the 9th April, 1946.It is clearly mentioned to be so in Ext. P-12 in these words:
"I shall make use and enjoyment of the
said shops as a tenant for one year and deliver your shops to you without
objections on 9-4-1946".
By holding over the tenancy from
month-to-month started from the 10th April, 1946 ending on the 9th day of the
following month This view finds support from the Rent Receipts Ext.
D-1 and D-I(a)The evidence on behalf of the
respondent that there was a mistake in those receipts is not correct as the
said receipts are in conformity with Ext. P-12. On the other hand Ext. P-13 and
P-14, the other two Rent Receipts, being not in accord with Ext. P-12 could not
be relied on.
In Ext. P. 16 the Controller by his order dated
29-9-1963 while fixing the fair rent of the suit premises at Rs. 10501- per
year had fixed it with effect from 10-4-1963.
That also shows that the: tenancy month
commenced from 10th day of a month and ended on the 9th day of the following
month.
The view taken by the learned District Judge
as, also by the High Court that the one year's tenancy ended on the 8th April,
1946 when the tenant agreed to deliver possession on the 9th April and hence
the monthly tenancy started from the 9th day of the month ending on the 8th day
of the following month is clearly erroneous in law- 71 That being so there was
no valid and legal termination of the contractual tanancy.
In Benoy Krishna Das and others v.
Salsiccioni and others(1) on the facts of that case Lord Tomlin delivering the
judgment of the judicial Committee of the Privy Council held the notice to be
valid. A lease for residential purposes of certain property in Calcutta was
expressed to be front June 1, 1921, for the ensuing four years. The tenant held
over.
The monthly tenancy was sought to be
terminated by the lessee stating therein that possession would be given up on
March 1. The landlord's contention that the notice ended on February 29, 1928
was not accepted. The four years lease was held to have ended on midnight of
June 1, 1925. The monthly tenancy began on the 2nd of the month ending on the
1st and so the notice was held to be valid.
We do not think that the alternative argument
put forward by Mr. Chitaley that no notice was necessary in this case is
correct. The appellant was a contractual tenant who would have become a
statutory tenant within the meaning of clause (r) of section 2 of the Act if he
would have continued in possession after the termination of the tenancy in his
favour. Otherwise not. Without termination of the contractual tenancy by a
valid notice or other mode set out in Sec. II I T. P. Act it was not open to
the landlord to treat the appellant a,,; a statutory tenant and seek his
eviction without service of a notice to quit.
In support of his contention Mr. Chitaley
placed reliance on two decisions of this Court namely Ganga Dutt Murarka v. Kartik
Chandra Das and others(2) and in Pooran Chand v. Motilal & others(,').
Neither of these supports his contention. In the case of Ganga Dutt Murarka a
passage from the decision of the Federal Court in the case of Kai Khushroo
Bezonee Capadia v. Bai Jerbai Hirjibhoy Warden and another(1) was quoted with
approval. A portion of it may be usefully quoted here also. It runs thus :
"In such circumstance, acceptance of
rent by the landlord from a statutory tenant whose lease has already expired
could not be regarded as evidence of a new agreement of tenancy, and it would
not be open to such a tenant to urge, by way of defence, in a suit for ejectment
brought against him, under the provision of Rent Restriction Act that by
acceptance of rent a fresh tenancy was created which had to be determined by a
fresh notice to quit.
The tenancy of the appellant in the above
case was found to have been determined by efflux of time and subsequent
occupation was not in pursuance of any contract, express or implied but by
virtue of the protection given by successive statutes. In the case of (1) 59,
Indian Appeals, 414, (2) [1961](3) S.C.R. 813.
(3) [1963] (2) Suppl. S.C.R. 906.
(4) [1949] Federal Court Reports, 262.
10 SC/75-6 72 Pooran Chand, Subba Rao, J. as
he then was, said at 912, when a similar argument was advanced before him : -
"It is not necessary in this appeal to express our opinion on the validity
of this contention, for we are satisfied that the term of the tenancy had
expired by efflux of time;
and, therefore, no question of statutory
notice would arise." No notice is necessary if a lease of immovable
property determined under clause (a) of section 111 of the Transfer of Property
Act by efflux of the time limited thereby.
In the result we allow this appeal and set
aside the decree of eviction passed against the appellant and in favour of the
respondent by the lower Appellate Court as affirmed by the High Court. In the
circumstances we shall make no order as to costs.
Appeal allowed. V.P.S.
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