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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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