Research › Browse › Judgment

Gauhati High Court · body

1978 DIGILAW 16 (GAU)

Promode Das and another v. Dharmadutta Sarma

1978-04-20

K.LAHIRI

body1978
Judgement This is an appeal against an appellate decree by the plaintiff-landlord, dismissing his suit for ejectment. 2. The plaintiff being the owner of the suit land had granted a lease in favour of the defendant for one year commencing from 7-12-1959 to 6-12-1960 on the stipulation that the defendant would pay rent @ Rs. 40 for the period. The land falls within the Urban Area of Gauhati. The lease was for residential purpose. The terms of the lease had expired but notwithstanding repeated requests made by the plaintiff the tenant had not vacated the land by removing the temporary structures made by the defendant; the plaintiff required the land for his own use and hence the suit. 3. The defendant contested the suit mainly on the grounds (1) that duration of the tenancy was from year to year reserving a yearly rent; (2) that the plaintiff had accepted rent in respect of the suit land up to 1964 and he was not a defaulter; and (3) that there was no valid quit notice. 4. The trial Court decreed the suit. On appeal the decree was set aside and the suit dismissed. 5. Mr. J. N. Sarma, the learned counsel for the appellants submits that the findings of the appeal Court (a) that the lease was "virtually a lease from year to year" reserving a yearly rent; (b) that the lease deed required registration under S. 49 of the Registration Act, are erroneous and liable to be set aside. 6. The findings are reversible on the face of the records. The lease deed Ext. I (quoted in the judgment of the appeal Court) inter alia reads as under:- "This agreement will remain effective for one year from 7-12-1959 to 6-12-1960. On the expiry of this term if you do not require the land I (the lessee) want to remain in occupation of it, you will be in a position to resettle it with me, fresh agreement. Otherwise I will be bound to deliver khas possession of the land to you on the expiry of the term by removing the houses etc. there from at my own cost," (Emphasis supplied) 7. It is manifest that the lease was only for one year. There was a provision of a fresh settlement, naturally it meant creation of a new tenancy. there from at my own cost," (Emphasis supplied) 7. It is manifest that the lease was only for one year. There was a provision of a fresh settlement, naturally it meant creation of a new tenancy. As such, the combined effect of the above factors unmistakably leads me to conclude unhesitatingly that it was a lease for a fixed term, namely, for one year only. Contracts governing the question of notice must be construed in a reasonable way. The cardinal rule of interpretation of such documents must invariably be to find out the intention of the parties as they appear on the face of the documents and not to put some terms by implication. The learned Judge fell into error in assuming some term and staggered and wavered and held that "it was virtually a lease from year to year......" A finding must be firm and not wavering or qualified. For the reasons set forth above I hold that the lease was only for a fixed period of one year and not a tenancy from year to year. 8. Was it a tenancy reserving a yearly rent? The expression reserving yearly rent shows that the duration of the lease must invariably be over one year. If the lease is limited to one year only it cannot be a lease "reserving a yearly rent" as contemplated under S. 107 of the T. P. Act, 1882. 9. A tenant from year to year is one who holds land for a span which may be determined on the expiry of the first or any subsequent year of the tenancy by the lessor or by the lessee by a legally valid quit notice. But, where the period of tenancy is specified and under the agreement between the parties, the tenant has to vacate without notice after the efflux of the period specified, it cannot be regarded as a lease from year to year. If a lease is not from year to year, the question of reservation of yearly rent cannot arise being unnecessary and meaningless. 10. Stipulation in a lease specifying a tentative rent to be fixed in the event of creation of a fresh lease on the expiry of the duration of the original lease does not come within the fold of the expressions "reserving a yearly rent" as contemplated under S. 107 of the T. P. Act. 10. Stipulation in a lease specifying a tentative rent to be fixed in the event of creation of a fresh lease on the expiry of the duration of the original lease does not come within the fold of the expressions "reserving a yearly rent" as contemplated under S. 107 of the T. P. Act. Reservation of annual rent is requisite only in a lease from year to year or for an indefinite term. When the nature of the lease is not from year to year or for an indefinite term, reference of yearly rent in the lease does not change its character to a lease reserving a yearly rent. 11. In view of the foregoing conclusions I am constrained to hold that the finding that the deed of lease (Ext. 1) was compulsorily registrable under Section 49 (sic. S. 17 (1) (d)) of the Registration Act read with S. 107 of the T. P. Act must be set aside. 12. In spite of the above findings in favour of the appellants the appeal must fail for want of notice to determine the new tenancy created by virtue of the operation of S. 116 of the Tenancy Act. The concurrent findings are that the appellant, on the expiry of the duration of the original tenancy by efflux of time, had accepted rent from the defendant whereupon a new tenancy was created under S. 116 of the T. P. Act. By accepting rent from the lessee the lessor created a tenancy and in the absence of any agreement to the contrary, the renewal was from month to month, according to the purpose for which the property was leased, namely, for residential purpose. As such, in the absence of valid notices required under S. 111 (h) of the T. P. Act and under S. 11 of the Assam Non-Agricultural Urban Areas Tenancy Act the plaintiffs suit must fail. It is indubitable that no notice was served on the defendant and as such it must be held that the suit was not maintainable. 13. In the result the appeal stands dismissed without costs. Appeal dismissed.