E V Parvathy Ammal v. S Viswanathan — 1970 DIGILAW 115 (KER)

ORDER E.K. Moidu, J. 1. Aggrieved by the order of eviction passed against the petitioner out of his residential building at the hands of all the 3 lower authorities (Rent Controller, Appellate authority and revisional authority), under section 11 (3) of the Kerala Buildings (Lease and Rent Control) Act 2 of 1965 (which will hereinafter be referred to as the Act) the Revision Petition is filed by him under section 115 C.P.C. challenging the eviction on the ground that notice to quit is not proper and that he is not liable to be evicted by virtue of the provisions of sub-section (7) of section 11 of the Act. 2. The building in question belonged originally to the Puthiya Kovilagam of Kozhikode. In a suit for partition the building was set apart to the share of one Kunhambatty Thamburatti who was a member of the Kovilagam. She assigned the building to one Gupthan Namboodiripad, who in his turn assigned the same to the present respondent on 1st July 1963. While the partition suit was pending, all the properties of the Kovilagam were under the management of a court Receiver from 1939 to 1945. The respondent purchased the property for his own occupation. So, the respondent sent Ext. B-24 notice dated 19th August 1963 to the petitioner, who is in possession of the building as a lessee to vacate the premises as he required the building for his own occupation. The petitioner did hot vacate even after notice. Therefore the respondent again sent Ext. B-28 notice dated 8th October 1964 terminating the lease directing her to vacate the building within 15 days from the receipt of the notice. As the petitioner did not vacate as required, the respondent filed the petition before the Rent Controller, Kozhikode on 16th November 1964 for eviction of the petitioner from the building under section 11 (3) of the Act. The Rent Controller passed the order of eviction which was confirmed in appeal by the appellate authority (Subordinate Judge). The Revisional authority the District Judge, Kozhikode, also confirmed the order under revision, which was exercised by him on the strength of the provisions contained in section 20 of the Act. It is against that order of revision that the present Civil Revision Petition is filed to this court. 3. Two contentions have been raised in this revision petition. The Revisional authority the District Judge, Kozhikode, also confirmed the order under revision, which was exercised by him on the strength of the provisions contained in section 20 of the Act. It is against that order of revision that the present Civil Revision Petition is filed to this court. 3. Two contentions have been raised in this revision petition. One contention is that the notice to quit is not proper. The next contention is that the petitioner being in possession of the building since June, 1939, he is not liable to be evicted on account of the prohibition contained in sub-section (9) of section 11 of the Act. These two questions more or less arise out of the same set of facts and they will, therefore, be decided accordingly. 4. The case of the petitioner is that she has been in possession of the building since June, 1939, whereas the case of the respondent is that the oral lease was originally granted by the Kovilagom to the petitioner's brother one Venkiteswara Iyer and that the petitioner has been in possession on the strength of the original lease. The respondent set up the alleged oral lease beginning from 25th February 1944 in his notice Ext. B-28. With regard to the commencement of the lease, there is absolutely no reliable evidence on the petitioner's side. Section 11 (7) omitting the irrelevant portion reads as follows: "A tenant, who has been in continuous occupation of a building from 1st April 1940 as a tenant shall not be liable to be evicted for bona fide occupation of the landlord or of the occupation by any member of his family depending on him." 5. The onus is on the tenant to prove that he has been in possession in continuous occupation from 1st April 1940. As I have already stated, on this aspect, the evidence is only that of the petitioner examined as P.W. 1. On the other hand, we have the evidence not only of P.W. 1 but also of P.W. 2 an agent of the Receiver, who was in charge of the building under the partition suit. The petitioner produced Ext. B-1 rent receipt which would show that rent for a period had been paid on 14th May 1945. Ext. On the other hand, we have the evidence not only of P.W. 1 but also of P.W. 2 an agent of the Receiver, who was in charge of the building under the partition suit. The petitioner produced Ext. B-1 rent receipt which would show that rent for a period had been paid on 14th May 1945. Ext. B-1 itself is a proof positive to establish that the oral lease was commenced on 25th February 1944 and the rent paid under it covering for a period of one year beginning from 25th February 1944 to 25th February 1945. The respondent's case is that Ext. B-1 rent receipt was issued to the petitioner's brother Venkiteswara Iyer. But, the portion where the name of the tenant was written had been cut and removed out of the top portion of Ext. B-1. It is seen from Ext. B-1 that some one had tampered with the top portion of the receipt. There is also evidence that the building was originally leased to Venkiteswara Iyer. Ext. X-3 is a rent roll maintained in the Kovilagam and continued to be kept by the Receiver. The rent roll No. 11 in Ext. X-3 showed that the building in question was in the possession of other tenants before 25th February 1944 and that Venkiteswara Iyer was put in possession as an oral lessee only on 25th February 1944. The case of the petitioner that she would have been in possession prior to 25th February 1944 is not proved by any other evidence. The evidence on the respondent's side conclusively established that the petitioner's predecessor came into possession of the building under an oral lease of 25th February 1944. Therefore, the petitioner cannot claim the benefit under sub-section (7) of section 11 of the Act. 6. The next question for consideration is whether Ext. B-28 notice is proper. This notice was issued terminating the lease of the petitioner. Section 106 of the Transfer of Property Act reads "15 days notice expiring with the end of a month of the tenancy" shall be issued to a tenant holding from month to month. We have to hold in the circumstances of this case that the petitioner is in possession of the building since 25th February 1944 on the basis of the oral lease. We have to hold in the circumstances of this case that the petitioner is in possession of the building since 25th February 1944 on the basis of the oral lease. So, the notice required to be sent to her must be one ending with the tenancy on the mid-night of 24th October 1964 in which case Ext. B-28 notice would be proper. The relevant portion of the notice reads as follows: "This is therefore to call upon you that unless you surrender the house for the residence of my client and his family and pay my client the rent of the house from 1st July 1963 onwards up to date with interest thereon as also pay a sum of Rs. 50.80 being the cost of this notice, within 15 days of the receipt of this notice, I have instructions to initiate legal proceedings against you for evicting you from the house and for recovery of arrears of rent." 7. The evidence of P.W. 1 is that Ext. B-28 notice was sent on 8th October 1964. That part of the evidence of P.W. 1 was not controverted. If notice was sent on that day, it could be presumed that the petitioner would have got it on the next day. If a period of 15 days were to be reckoned from 9th October 1964 it would expire on the mid-night of 24th October 1964. The wording of the notice that the tenant should quit the premises within 15 days of the receipt of the notice would tantamount to the termination of the lease with effect from the mid-night of 24th October 1964, which, in circumstances of the case, is a proper notice. 8. The Transfer of Property Act prescribes no form of notice, nor any particular words. The object of the notice under section 106 is to give the tenant sufficient time to vacate the premises and such a notice should be liberally construed. The real point in such cases is that the person on whom the notice is served should understand that his tenancy has been terminated and he is required to vacate at the end of the period of tenancy. If the tenant attacks the notice on the ground of language, he must show its defective language caused him to misunderstand its nature. If Ext. B-28 is viewed in the light of the above circumstances, I feel that Ext. If the tenant attacks the notice on the ground of language, he must show its defective language caused him to misunderstand its nature. If Ext. B-28 is viewed in the light of the above circumstances, I feel that Ext. B-28 is a proper notice. However, the learned counsel of the petitioner has relied upon a decision reported in Chottalal Othamchand v. Arakkaparambil Padmanabha Shenoi, A.I.R 1954 T.C.467 which was a case where the landlord wanted possession of the building at least by 5 p.m. on 31st August 1945, though the tenancy would only expire on the mid-night of that day. In that case it was held that the notice was not proper. But, there was no such time limit in the instant case during the period when the landlord was to take possession. Similarly, the decision reported in Devshankar Gangaram Mehta v. Bachubha Devsing Chudasama and others, A.I.R. 1956 Bom. 113 has also no application to the facts of the instant case. That was a case where notice was worded as follows: "You are to remember that if for any reason these fields have not been handed over to us before 31st March 1950, you are to hand over possession thereof to us for our personal cultivation before the above mentioned date. It was held that the expression "before the 31st March, 1950" coupled with "you are to hand over possession thereof to us for our personal cultivation before the above mentioned date" would amount to a demand to take possession of the property not on 31st March 1950, latitude being left to the landlord to choose his own time on that day even on any date before 31st March 1950 on the mid-night of which date the lease in the normal circumstance would expire. But, that case could be distinguished from the one on hand as the landlord in this case required the building within the period of 15 days ending with the last date of the tenancy. 9. But, that case could be distinguished from the one on hand as the landlord in this case required the building within the period of 15 days ending with the last date of the tenancy. 9. In a decision reported in Rochaldas Tikamchand v. Ratanchand Baghmal A.I.R. 1954 Nagpur 292 it is held that section 106 does not require that the exact date of the termination of the tenancy should be specified in the notice and so, if the tenancy is to expire at the end of a month according to the English calendar, it is enough if the landlord says in the notice that the tenant should vacate at the end of the month without mentioning any particular date. The Division Bench in the above case expressed the view on this aspect in paragraph 5 of the judgment. Hidayathulla J. as he then was, made the following observation: "The notice has not to he given with "all the particularity of a pleading. Naturally, therefore, it is not subject to strict interpretation. A liberal construction has to be put upon the notice so as to find out the true intention of the party giving the notice and whether the party served with the notice could understand it in the sense meant by the giver of the notice. Courts should give such construction as would not work a hardship on tenant and would not strain the language too much against the landlord." 10. On a consideration of all the aspects of the case, I am of the opinion that Ext. B-28 is a proper notice to quit and that the lease of the petitioner has been properly terminated. Having found these two points in favour of the respondent, the revision petition is not sustainable and as such it is dismissed, however, without costs. The petitioner is given 3 months time from this date to vacate the premises..