Ramalinga Chettiar v. Srinivasa Chettiar — 1996 DIGILAW 616 (MAD)

Judgment :- 1. The defendant is the appellant herein. The plaintiff filed O.S. No. 170/78 on the file of District Munsif, Court at Chidambaram, for possession after removal of superstructure in the suit property and for past mesne profits. The case of the plaintiff is as under: 2. The suit property belongs to the plaintiff. The defendant became a tenant of the property under the plaintiff on 30.4.1996 on a monthly rent of Rs. 4/-. The rent is payable on or before the 30th of every month. If there is any default in payment of rent before the 30th of every month, the defendant is bound to pay Rs. 5/-. The tenancy was for a period of three years. The rental agreement was executed between the plaintiff and the defendant on 30.4.1966 incorporating the abovesaid clause. Even after the expiry of the lease period, the tenant has been in possession of the suit property as a tenant holding over. He was irregular in payment of rent. After May 1978, a sum of Rs. 321/- is due and payable by the defendant towards the arrears of rent. The plaintiff sent a notice on 19.10.1977 to the defendant terminating the tenancy with the expiry of 29.11.1977 and demanding him to surrender the possession of the property on 30.11.1977 with arrears of rent of Rs. 281/- due upto 30.9.1977. The tenant sent a reply notice on 26.10.977, refusing to vacate. In the reply notice, the tenant alleged that the rent is only Rs. 3/- per month and not Rs. 4/- per month as stated by the plaintiff. On 12.12.1978 the defendant sent again a notice to the plaintiff calling upon the plaintiff to specify a bank to deposit the rent. Thereafter, the plaintiff sent another notice dated 24.10.1978 terminating the tenancy with effect from 31.3.1978, and also requiring the defendant to surrender vacant possession of the suit land. The defendant is not entitled to the rights under the Tamil Nadu City Tenants Protection Act or under the Tamil Nadu Buildings (Lease and Rent Control) Act. Hence the suit. 3. The case of the defendant is as under: The defendant is in occupation of 50 ft. “51 ft of vacant land on a monthly rent of Rs. 4/- from 1.5.1966 onwards. Rent per month was fixed at Rs. 3/- with effect from January, 1967. Hence the suit. 3. The case of the defendant is as under: The defendant is in occupation of 50 ft. “51 ft of vacant land on a monthly rent of Rs. 4/- from 1.5.1966 onwards. Rent per month was fixed at Rs. 3/- with effect from January, 1967. The defendant has obtained the plaintiffs signature in Katchayat book kept with him as evidence for payment of rent. The defendant is not in arrears of rent as alleged by the plaintiff. The plaintiff used to come to the suit land and collect the rent from the defendant. Since the plaintiff refused to receive the rent, the defendant sent a money order on 26.10.1977 towards the rent due upto 30.10.1977 which the plaintiff refused to receive. In the month of October, 1977, the plaintiff, demanded rent from the tenant at the rate of Rs. 15/- per month. The plaintiff also demanded the defendant to sell his adjacent land to the suit property to the plaintiff. The defendant refused to pay the higher rent and also refused to sell his land to the plaintiff. Because of that, the plaintiff came forward with the present suit. The defendant erected a superstructure in the leasehold land, wherein the defendant is carrying on his business of oil seed crushing and selling the oil. The defendant put up a thatched shed and installed a country oil crusher in the suit land. Therefore, the plaintiff is not the owner of the superstructure. The defendant is entitled to the benefits under the Tamil Nadu City Tenants Protection Act. The notice issued by the plaintiff is not valid. Therefore the suit is liable to be dismissed. 4. The plaintiff examined himself as PW. 1 The defendant examined himself as DW. 1. One Muthukumaraswamy Pillai was examined as DW. 2. The plaintiff filed 9 documents. The defendant filed 24 document. 5. Considering the facts arising in this case the trial court held that the defendant was in arrears of rent amounting to Rs. 102/- and the defendant is not entitled to the benefits of the Tamil Nadu City Tenants Protection Act since the said Act was not made applicable to the suit town. The trial court decreed the suit but declined to pass a decree for recovery of possession. However the trial court granted decree to recover the arrears of rent. 6. 102/- and the defendant is not entitled to the benefits of the Tamil Nadu City Tenants Protection Act since the said Act was not made applicable to the suit town. The trial court decreed the suit but declined to pass a decree for recovery of possession. However the trial court granted decree to recover the arrears of rent. 6. On appeal, the first appellate court appraising the facts arising in this case, set aside the judgment and decree of the trial court and granted a decree in the following terms: “The defendant shall pay Rs. 45/- as arrears of rent upto May, 1978. The defendant is directed to remove the superstructure and put the plaintiff in vacant possession of the suit property. The defendant shall pay future mesne profits from June, 1978 at the rate of Rs. 3/- per month till recovery of possession. The plaintiff is entitled to his costs in the suit. There will be no order as to costs in this appeal.” It is against this judgment and decree the defendant is in appeal before this court. 7. The learned counsel appearing for the defendant/appellant submitted as under: The appellant herein is the tenant in respect of the suit land. The tenant put up a structure on the vacant land wherein he is conducting his oil seed crushing and selling the oil. The defendant has also installed a country oil seed crusher in the suit property. Therefore the plaintiff-respondent is not the owner of the superstructure. According to the appellant, he is entitled to the protection under the Tamil Nadu City Tenants Protection Act. The respondent issued 15 days notice for terminating the tenancy. The notice issued by the respondent is bad in law. The appellant is carrying on manufacturing activities in the suit land. Hence it is a manufacturing lease. Therefore, he is entitled to six months notice as contemplated under Section 106 of the Transfer of Property Act. Tamil Nadu City Tenants Protection Act was also extended to Parangipettai town. In the notice, the respondent has not offered to pay compensation for the superstructure put up by the tenant. Even though there was a lease deed that was not filed by the respondent herein. There is no evidence on recorded to show that the tenancy is on monthly basis. In the notice, the respondent has not offered to pay compensation for the superstructure put up by the tenant. Even though there was a lease deed that was not filed by the respondent herein. There is no evidence on recorded to show that the tenancy is on monthly basis. In the reply notice in the written statement and in the oral evidence, the appellant herein clearly stated that he installed a country oil crusher and he is doing the oil business. The respondent also admitted that the appellant installed a country oil crusher in the suit land. Even in the lease deed it is stated that the land was rented out for oil seed crushing, that is why the lease deed was not filed by the respondent herein. It was therefore pleaded that the judgment and decree rendered by the first appellate court are liable to be set aside. 8. On the other hand, the learned counsel appearing for the plaintiff/respondent submitted as under: According to the appellant, he is carrying on manufacturing activities in the suit land and therefore he required six months notice under Sec. 106 of the Transfer of Property Act, but this point was not taken by the appellant herein before the courts below. The Tamil Nadu City Tenants Protection Act is not applicable to Porto Novo village. The appellant is in arrears of rent. The appellant put up a small hut in the suit land. The appellate court permitted the appellant to remove the hut and hand over the possession of vacant land to the respondent. The appellant is not entitled to any compensation as prayed for. Fifteen days notice issued by the respondent ending with the month is perfectly valid. The appellant denied the title of the respondent to the suit property. Under Sec. 116 of the Indian Evidence Act, no tenant of immovable property during the continuance of the tenancy will be permitted to deny the title of the landlord. Therefore, in as much as the appellant herein denied the title of respondent with regard to the suit property, his tenancy right is forfeited. Even in Ground No. 4, in the Memorandum of grounds, the appellant denied the title of the respondent with regard to the suit property. Therefore, in as much as the appellant herein denied the title of respondent with regard to the suit property, his tenancy right is forfeited. Even in Ground No. 4, in the Memorandum of grounds, the appellant denied the title of the respondent with regard to the suit property. Under Sec. 111(g) of the Transfer of Property Act, if the tenant denies the title of the landlord, then the tenancy got automatically terminated and the landlord is having the right to re-enter the leasehold property. Further when the title was denied and the tenancy is forfeited no notice under Sec. 106 of the Transfer of Property Act is necessary. For all these reasons, it was submitted that the first appellate court was correct in directing the appellant herein to deliver the possession of the suit land after removing the superstructure. 9. I have heard the rival submissions. 10. The appellant herein is the defendant in the suit. The plaintiff let out vacant land on a monthly rent of Rs. 4/- to the defendant. According to the plaintiff there is a written lease deed. But the said lease deed was not produced. In the oral evidence the plaintiff stated that the suit land was leased to the defendant. The defendant put up a superstructure and doing oil crusher business with the help of a country oil crusher. Therefore according to the defendant the lease is a manufacturing lease and he is entitled to six months notice as contemplated under Sec. 106 of the Transfer of Property Act. The landlord/plaintiff sent a notice terminating the tenancy with 15 days time ending with the month. Therefore, according to the defendant the notice issued by the landlord is not valid. Further it was stated that the tenant is entitled to the benefit under the City Tenants Protection Act and hence he cannot be evicted. But no petition under Sec. 19 of the said Act was filed by the tenant. According to the plaintiff, the City Tenants Protection Act is not extended to Porto Novo But according to the tenant defendant, the said Act is extending to Porto Novo. But no petition under Sec. 19 of the said Act was filed by the tenant. According to the plaintiff, the City Tenants Protection Act is not extended to Porto Novo But according to the tenant defendant, the said Act is extending to Porto Novo. According to the plaintiff the defendant denied the title of the landlord in para 4 of the Memorandum of grounds and the tenancy is forfeited under Sec. 111(g) of the Transfer of Property Act, and hence notice under S. 106 of the Transfer of Property Act need not be issued. 11. In para 4 of the Memorandum of grounds the appellant/defendant stated that “whether the possession of the additional documents filed in the above Second Appeal by way of additional evidence, the plaintiff has a right to institute the suit in his name”. When the defendant/appellant has not filed a petition under Sec. 9 of the Tamil Nadu City Tenants Protection Act within 30 days from the date of receipt of summons in the suit, the tenant defendant is not entitled to claim the benefit under the said Act under Sec. 9. Therefore, the claim of the benefit under Sec. 9 of the Tamil Nadu City Tenants Protection Act cannot be taken into consideration in this Second Appeal. 12. Now the only point that remains for consideration is whether the notice issued by the plaintiff landlord dated 24.10.1978 to terminating the tenancy with effect from 30.3.1978 is a valid notice, under, under Sec. 106 of the Transfer of Property Act. Only in the grounds of Second Appeal the defendant/tenant raised a doubt with regard to the authority of the landlord in filing a suit on the basis of the additional document. This ground was not raised earlier. 13. In the ground No. 4 of Memorandum of grounds in the Second Appeal the tenant merely asked whether in the present of additional documents the landlord can file the present suit in his own name. This would not amount to denial of title. Merely putting the landlord to proof of his title may not amount to disclaimer of the landlords title where the tenant has not repudiated the tenancy. This would not amount to denial of title. Merely putting the landlord to proof of his title may not amount to disclaimer of the landlords title where the tenant has not repudiated the tenancy. Where the tenant does not set up the title of another nor does he claim title in himself but requires further information before he pays the rent to anybody and knowledge him to be the tenant and his readiness and willingness to pay the rent to the right person, there is no disclaiming. To constitute a disclaimer, there must be distinct and unequal renunciation of the entire tenancy. In any case since there must be a distinct and unequivocal renunciation of the tenancy to constitute a disclaimer the application of the doctrine of disclaimer cannot be extended to cases where the tenant merely questions the extent of the interest of the plaintiff and his title to receive the rent. The disclaimer of title of the lessor or the renunciation of the character of the lessee must be clear and unambiguous, it must be unequivocal and absolutely definite. The law leans strongly against forfeiture. Therefore the forfeiture clause must be strictly constructed against the person who tries to take advantage of it. 14. When facts are already on record new legal plea can be raised at any stage. In the reply notice Ex. A.6 dated 26.7.1977 it was stated that the land is used for crushing oil seeds. P.W. 11 plaintiff and DW. 2 stated that the defendant was using the land for crushing oil seed by installing a country oil crusher. Therefore the lease is a manufacturing lease, since crushing of oil seed and extracting oil is a manufacturing activity. If that is so, six months notice under Sec. 106 of Transfer of Property Act is necessary. In as much as there is no denial of title in this case, the additional ground raised, pleading estoppel against the tenant, under Sec. 116 of the Evidence Act is rejected since ground No. 4 in the Grounds of Appeal in the Second Appeal does not amount to denial of title. All the arguments raised with regard to forfeiture of tenancy on the ground of denial of title are rejected. The finding that the lease is a manufacturing lease is arrived at on the basis of the deposition given by the landlord. All the arguments raised with regard to forfeiture of tenancy on the ground of denial of title are rejected. The finding that the lease is a manufacturing lease is arrived at on the basis of the deposition given by the landlord. According to the landlord there is a lease deed. But the lease deed was not filed. The appellant attempted to file additional documents like Registration copy of lease deed, etc. But at this stage the appellant is not entitled to file additional documents and therefore C.M.P. No. 6942 of 1982 stands dismissed. 15. Since the defendant is doing manufacturing activity in crushing oil in the suit land with country oil crusher as accepted by the landlord/plaintiff, the lease is a manufacturing lease and defendant/appellant is entitled to six months notice under Sec. 106 of the Transfer of Property Act. The notice issued dated 24-10-1978 terminating the tenancy from 31-3-1978 is not valid notice under S. 106 of the Transfer of Property Act. Therefore the first appellate court is not entitled to direct the defendant to quit and deliver possession. Accordingly, the judgment and decree of the first appellate court are set aside and the judgment and decree of the trial court are restored. 16. In the result, the Second Appeal is allowed with costs.