Machincherry Pocker v. V Kammu — 1989 DIGILAW 171 (KER)

JUDGMENT K.A. Nayar, J. 1. The defendant in O. S.139 of 1984 on the file of the Munsiff's Court, Tirur is the appellant. The appeal is against the judgment in A.S. No 36 of 1986 of the Court of the Subordinate Judge. Tirur. The suit is for eviction of the defendant from the plaint schedule shop room. The suit was decreed and the defendant was directed to surrender vacant possession of the plaint schedule shop building to the plaintiff within 3 months from the date of the judgment which was on 22-2-1986. The lower appellate court dismissed the appeal filed by the defendant as A. S.36/1986, with costs and the defendant was granted 6 months time to surrender the plaint schedule shop room to the plaintiff. It is thereafter the second appeal is filed raising the following questions of law : A) Whether it is mandatory to plead and prove the date of commencement of the tenancy in a suit for eviction of tenant in order to determine the tenancy by notice under S.106 of the Transfer of Property Act 1882 ? B) Is the notice under S.106 of the T. P. Act terminating the tenancy is proper and valid when the date of commencement of the tenancy is not at all pleaded or proved by the plaintiff in a suit for eviction filed by the landlord even though there is an alternate clause giving option to the tenant for determining the date of termination of the tenancy? C) Whether the hotel business is within the definition of manufacturing purposes for the purpose of quit notice under S.106 of the Transfer of Property Act, 1882? D) Are not the courts below bound to come to specific conclusions on merits about the contentions raised by the plaintiff landlord in a suit for eviction of a tenant about the bona fide requirement for getting the surrender of the vacant possession of the lease hold premises where the provisions of the Kerala Buildings (Lease and Rent Control) Act are not applicable? E) Whether it is proper and legal on the part of the Trial Court to come to the conclusion that the tenant is not entitled for value of improvements for want of evidence after dismissing the application filed by the tenant for .the issue of a commission for ascertaining the value of improvements of the plaint schedule building? E) Whether it is proper and legal on the part of the Trial Court to come to the conclusion that the tenant is not entitled for value of improvements for want of evidence after dismissing the application filed by the tenant for .the issue of a commission for ascertaining the value of improvements of the plaint schedule building? The plaint schedule property belongs to the plaintiff as per the assignment deed of 1976. At the time of the assignment the defendant was doing hotel business in the shop building after obtaining lease from the original owner. The defendant thereafter attorned to the plaintiff and the shop room was reentrusted renewing the rent at the rate of Rs. 135/- per month with effect from 2-4-1981. The building was required for bona fide use of the plaintiff for doing hotel business and therefore he demanded the defendant to surrender vacant possession of the building. Since the defendant has not done so, the plaintiff sent a lawyer notice terminating the tenancy and demanding surrender of vacant possession of the building. In the notice dated 2-7-84, terminating the lease with effect from 2nd August 1984, it is stated that if the defendant has any dispute regarding the date of termination, the notice can be treated as terminating the lease from that date which falls due after the expiry of 15 days from the date of receipt of the notice. The defendant sent a reply notice raising untenable contentions. Hence the suit was filed for vacant possession. Regarding the validity of the notice the Trial Court observed that even though the defendant in his written statement contended that the notice issued by the plaintiff terminating the lease is not proper he had no such case when he was given evidence as DW1. It was also admitted that the entrustment was on 2-4-1981. The notice was issued on 2-7-1984 terminating the tenancy on 2-8-1984. The contention of the counsel for the defendant was that the notice was not proper, since the date of termination was 2-8-1984. On a perusal of Ext. Al notice, it is seen that there is an alternative clause in the notice giving option to the defendant. Therefore, following the decision reported in Kunhambu v. Kunhayissumma-1917 KLT 206, it was found that the notice was proper and valid. On a perusal of Ext. Al notice, it is seen that there is an alternative clause in the notice giving option to the defendant. Therefore, following the decision reported in Kunhambu v. Kunhayissumma-1917 KLT 206, it was found that the notice was proper and valid. In the appeal only two contentions were raised before the lower appellate court, the first was regarding the validity of the notice and the second was regarding the value of improvements. The lower appellate court found that the quit notice sent by the plaintiff was proper and valid. Regarding the contention relating to value of improvements the appellate court found that the defendant was not entitled to the value of improvements even if he has effected improvements in the shop room, as the same has been done without written consent of the landlord. 2. I heard counsel on behalf of the appellant. There is no lease of land involved in the case. The tenant of a building is not entitled to make any improvements without the consent of the landlord. There is no evidence to show that the defendant has made any improvements. The lessee is also not entitled to make permanent structures without consent of the owner and there is no case that the landlord has permitted to make such improvements. Counsel for the appellant referred to the decision in Narayani Amma v. Parukutty Amma - 1980 KLT 26 to show that the appellant is entitled to compensation under the Kerala Compensation for Tenant Improvements Act 29/1958. But that decision will apply only to tenant of a land as defined in that Act and has no application to the facts in question i.e. of a building lease. Therefore the courts below rightly denied the claim for improvements. 3. Regarding the validity of notice three contentions are raised before me. S.106 of the Transfer of Property Act provides for termination of lease. A lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year terminable by six months' notice expiring with the end of the year of tenancy by either side and a lease of immovable property for any other purpose shall be deemed to be a lease for month to month terminable on the part of either lessor or lessee by fifteen days notice expiring with the end of the month of the tenancy. Counsel argued that the lease in question was for manufacturing purpose. The argument is ingenious but there was no pleadings or foundation for such an argument. Appellant also had no such case before the Trial Court or even in the lower appellate court. Whether the lease in question is a lease for manufacturing purpose will depend upon the facts of the case which has to be pleaded and evidence to be adduced. The onus of proving that the lease is only for manufacturing purposes is on the tenant. Such a question cannot be allowed to be raised for the first time in the second appeal. Therefore the contention of the appellant that the lease in question is one for manufacturing purposes terminable with six months notice expiring with year of tenancy should fail because the original lease or the subsequent terms of entrustment are not in evidence. 4. The more important question raised is that even if it be held that, lease is for a month to month the notice in question is invalid in so far as the same does not give 15 days notice expiring with the end of a month of the tenancy and also does not disclose the date of commencement of the notice. The only contention of the appellant regarding the invalidity of the notice appears to be that the notice was issued on 2-7-1984 terminating the tenancy on 2-8-1984, and not with the end of the month of tenancy which had to be ascertained with respect to the original lease. Both the courts below proceeded that the date of tenancy was on 2-4-81 for the Trial Court stated that 'admittedly the entrustment was on 2-4-1981'. The lower appellate court also found that the entrustment was on 2-4-1981. Since the courts below concurrently found that the entrustment was on 2-4-1981 the contention based on the invalidity of the notice on the ground of not specifying date which according to the tenant is not 2-4-81 cannot also succeed. 5. That leaves the question whether the notice is invalid on the ground that the said notice dated 2-7-1984 is issued terminating the tenancy on 2-8-1984. 5. That leaves the question whether the notice is invalid on the ground that the said notice dated 2-7-1984 is issued terminating the tenancy on 2-8-1984. It is undisputable that under S.106 of the Transfer of Property Act the notice to quit must expire with the end of the month of the tenancy or in other words it must terminate the tenancy with effect from the expiration of the month of tenancy. If it terminates the tenancy with effect from an earlier date it would be clearly invalid (See Bhagabandas Agarwalla v. Bhagwandas Kanu - 1977 SC 1120) The Supreme Court has also referred to the decision of the Privy Council in Harihar Banerji v, Ramshashi Roy - 1918 PC 102 and has held that notice to quit must be construed not with a desire to find fault with it which would render it defective but it must be construed ut res magis valeat quam pereat. Since there is an alternative clause in Ext. Al notice giving an option to the defendant to deem the tenancy terminated on that day falling after the lapse of 15 clear days it cannot be invalid. Defendant had 15 days clear notice expiring with the month of tenancy. But in addition an option also is given. In the light of the reasoning of the decision in Kunhambu v. Kunhayissumma - 1977 KLT 206 the notice cannot be held invalid. 6. The tenant understood the purpose of the notice. The notice need not be worded with the accuracy of a plea. Notice to quit being a technical rule how it should be construed is laid down by Varghese Kalliath J. following the decision of Supreme Court in Bharat Petro Corporation Limited v, Khaja Midhat Noor - 1988 (3) SCJ 228 in the decision reported in Jacob v. Saleem - 1989 (1) KLT 248 , which I respectfully follow. Before parting with this case I am compelled to add that the words "expiring with the end of the year of tenancy" and "expiring with the end of a month of tenancy" occurring in S.106 of the Transfer of Property Act have only lead to more unwanted litigation and therefore time has come for amending the section by deleting these words. In the light of the above discussion, I hold that no case is made out to interfere with the judgments of the courts below. In the light of the above discussion, I hold that no case is made out to interfere with the judgments of the courts below. The questions of law raised do not arise in the case. The Second Appeal is dismissed.