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1980 DIGILAW 725 (ALL)

Suresh Chand Sinha v. Jwala Devi Vidya Mandir

1980-08-06

S.J.HYDER

body1980
JUDGMENT : S.J. HYDER, J. 1. One Sri K.G. Sinha was the tenant of the accommodation in dispute. The monthly rent payable by him was Rs. 12/-. Shri K.G. Sinha died in or about the year 1962. He was survived by five sons, four daughters and a widow. One of the surviving sons of the deceased tenant was Shri S.C. Sinha. 2. The Plaintiff-Respondent made an application to the Rent Control and Eviction Officer, who was vested with the powers of the District Magistrate under U.P. Act III of 1947, for permission to file a suit for ejectment against the heirs of the deceased tenant. It appears that the Plaintiff was not aware of the fact that Sri S.C. Sinha is also one of the heirs of the deceased tenant. Whatever may be the reason, Sri S.C. Sinha was not impleaded as a party to the said application. The Rent Control & Eviction Officer granted permission to the Plaintiff-Respondent to file a suit for ejectment against the Defendant-Appellants. This order was passed on December 31, 1963. 3. Thereafter, the Plaintiff-Respondent served a notice of ejectment against all the heirs of late Sri K.G. Sinha except his son Sri S.C. Sinha. The period of 30 days prescribed under the said notice having expired, the Plaintiff-Respondent instituted a suit for ejectment against the heirs of Sri K.G. Sinha. 4. The suit was contested by the Defendants-Appellants on various grounds. They, inter alia, stated that the suit was bad for non-service of notice u/s 106 of the Transfer of Property Act on Sri S.C. Sinha. They also challenged the validity of the permission granted by the Rent Control and Eviction Officer on the same ground. 5. Both the courts below have repelled the contentions advanced on behalf of the Defendants-Appellants. In consequence, the suit of the Plaintiff-Respondent was decreed by the trial court. The said decree had been maintained by the first court of appeal. 6. Learned Counsel appearing for the Defendant Appellants repeated the two contentions which had been raised before the two courts below. He invited my attention to a Division Bench decision of this Court in Budh Sen Vs. Sheel Chandra Agarwal and Others, AIR 1978 All 88 . The said decree had been maintained by the first court of appeal. 6. Learned Counsel appearing for the Defendant Appellants repeated the two contentions which had been raised before the two courts below. He invited my attention to a Division Bench decision of this Court in Budh Sen Vs. Sheel Chandra Agarwal and Others, AIR 1978 All 88 . In the said decision, it has been, inter alia, held that when a tenant dies and his interest devolves upon his heirs, then in such case, the landlord must serve notice on all the heirs of the deceased tenant. If such a notice is not served on any one of the heirs, the notice u/s 106 of the Transfer of Property Act would be invalid. Budh Sen's case overrules the Single Judge decision of this Court in Smt. Shafiqa v. Maqbool Ahmed 1970 AWR 100 . On the other hand, it approves the decision of H.N. Seth, J. in Smt. Vishnawati Vs. Bhagwat Vithu Chowdhry, AIR 1970 All 389 . If the matters had stood where they had been placed by the Division Bench of this Court in Budh Sen's case (supra), there could have been no difficulty in giving a verdict in favour of the Defendants-Appellants particularly because the decision of the single Judge of this Court in Shafiqa's case (supra) which was the corner stone of the judgment of the trial court had been disapproved by the Division Bench. However, the force of the arguments of the counsel of the Appellants has been completely obliterated by a seven Judge Bench of the Supreme Court in the case of V. Dhanapal Chettiar Vs. Yesodai Ammal, AIR 1979 SC 1745 . Untwalia, J. speaking for the court observed at page 1750: It is true that the Rent Act is intended to restrict the right which the landlord possessed either for charging excessive rents or for eviction of tenant. But if within the ambit of those restricted rights, he makes out his case, it is a mere empty formality to ask him to determine the contractual tenancy before the institution of the suit for eviction. As we have pointed out above, this was necessary under the Transfer of Property Act, as mere termination of the lease entitled the landlord to recover possession. As we have pointed out above, this was necessary under the Transfer of Property Act, as mere termination of the lease entitled the landlord to recover possession. But under the Rent Control Acts it becomes an unnecessary technicality to insist that the landlord must determine the contractual tenancy. It is of no practical use after so many restrictions of his right to evict the tenants have been put. The restricted area under the various State Rent Acts has done away to a large extent with the requirement of the law of contract and the Transfer of Property Act. If this be so, why unnecessarily, illogically and unjustifiably, should be insisted upon? 7. It may be pointed out that a Constitution Bench of the Supreme Court consisting of-five Judges in the case of Vora Abbasbhai Alimahomed Vs. Haji Gulamnabi Haji Safibhai, AIR 1964 SC 1341 stated the law in these terms: The Accommodation Act does not in any way abrogate Chapter 5 of the Transfer of Property Act which deals with lease of Immovable property. The requirement of Section 106 of the Transfer of Property Act is that a lease from month to month can be terminated only after giving 15 days notice expiring with the end of a month of the tenancy either by the landlord to the tenant or by the tenant to the landlord. Such a notice is essential for bringing to an end the relationship of landlord and tenant. Unless the relationship is validly terminated, the landlord does not get the right to obtain possession of the premises by evicting the tenant Section 106 of the Transfer of Property Act does not provide for the satisfaction of any additional requirements. But then Section 4 of the Accommodation Act steps in and provides that unless one of the several grounds set out therein is established or exists, the landlord cannot evict the tenant. 8. The case of Mangilal (supra) was concerned with Section 4 of the Madhya Pradesh Accommodation Control Act, 1955 which is identical in terms of Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act III of 1947. 8. The case of Mangilal (supra) was concerned with Section 4 of the Madhya Pradesh Accommodation Control Act, 1955 which is identical in terms of Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act III of 1947. The misfortune of the Defendant-Appellant is that while referring to the judgment in the said case, the seven Judge Bench of the Supreme Court in V. Dhanapal Chettiar's case (supra) has observed as under: We say with utmost respect that on the point of requirement of a notice u/s 106 of the Transfer of Property Act Mangi Lal's case was not correctly decided. 9. The ratio of the judgment in V. Dhanapal Chettiar's case is that the different Rent Control Acts passed by the various States encroached upon the freedom of contract and Section 106 of the Transfer of Property Act contains a mode in which the contract of tenancy can be determined. In the opinion of the Supreme Court, if contract itself is now regulated by various Rent Control enactments, it is wholly futile to fall back on the general law contained in Section 106 of the Transfer of Property Act. In respectful agreement with the Supreme Court, I am of the opinion that it was not at all necessary for the Plaintiff-Respondent to have served any notice of ejectment on the heirs of Sri K.G. Sinha. If that be so, want of service of notice of ejectment on one of the heirs will make no difference. The first submission urged on behalf of the Defendant-Appellants therefore, fails. 10. Learned Counsel next submitted that no permission had been obtained by the Plaintiff-Respondent against Sri S.C. Sinha who was also a tenant of the accommodation in dispute along with the other heirs of late Sri K.G. Sinha. This submission is wholly futile. It was held as far back as the year 1958 in Janardan Swarup v. Devi Prasad 1958 AWR 675 that if an application is made by one of the co-sharers to eject a tenant, the permission is valid and endures for the benefit of the entire body of the co-owners. On a parity of reasoning, the same would be the position with regard to the permission obtained by a landlord against some of the heirs of a deceased tenant. In such circumstances the landlord can avail of the benefit of the permission obtained against some of the co-tenants. On a parity of reasoning, the same would be the position with regard to the permission obtained by a landlord against some of the heirs of a deceased tenant. In such circumstances the landlord can avail of the benefit of the permission obtained against some of the co-tenants. The question which was to be remembered is that the interest of the tenant is effectively represented in the proceedings before the Rent Control and Eviction Officer and they had adequate opportunity to contest the application made by the landlord for permission to eject the tenants. I am, therefore, unable to accept the second contention urged on behalf of the Defendant-Appellants. 11. No other point has been urged in support of this second appeal. The result is that this second appeal fails and is hereby dismissed with costs.