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2001 DIGILAW 1238 (MAD)

R. Govindan (died) v. Karapaga Vinyagar Temple

2001-10-15

A.RAMAMURTHI

body2001
Judgment : 1. Theunsuccessful defendant in both the courts below is the appellant. 2. Thecase in brief is as follows:- The plaintiff filed a suit for recovery of possession and arrears of rent past and future. The plaintiff is the owner of the property and the same was rented out to the defendant on 27.9.1975 on a monthly rent of Rs.55. The rent is to be paid on the 10th of every English calendar month and the lease is for a period of three years. However, the defendant continued to occupy the property and from June 1980, the monthly rent was Rs.l00. The defendant is in arrears of rent from September 1982 to June 1994 amounting to Rs.2200. Since the defendant is a trespasser, he is liable to pay at the rate of Rs.l25 per month. 3. The defendant admitted the tenancy on a monthly rent of Rs.50 from 1.5.1967. He had paid a sum of Rs.l00 by way of advance and later, the monthly rent was increased to Rs.55. He never agreed to pay Rs.l00 per month and he is not liable to pay Rs.2200 towards arrears. The claim of Rs.l25 per month is also not proper and correct. 4. The trial court framed 6 issues and on behalf of the plaintiff, P.Ws.l and 2 were examined and Exs.A-1 to A-8 were marked. On the side of the defendant, he was examined as D-W.l and Exs.B-1 and B-2 were marked. The trial court directed the defendant to deliver possession in a period of two months and to pay the arrears of Rs.1650. The future rent was left open to separate proceedings. Aggrieved against this, the defendant preferred A.S.No.37 of 1989 on the file of Sub Court, Kumbakonam and the learned Judge after hearing the parties, dismissed the appeal and aggrieved against this, the present second appeal is filed. 5. At the time of admission of the second appeal, this court framed the following substantial questions of law for consideration. 1) Whether the notice issued by the landlord is a valid notice under section 106 of the Transfer of Property Act ? 5. At the time of admission of the second appeal, this court framed the following substantial questions of law for consideration. 1) Whether the notice issued by the landlord is a valid notice under section 106 of the Transfer of Property Act ? 2) Is it not the duty of the plaintiff temple when the plaintiff temple claiming exemption as per G-O.Ms.No.2000/Home dated 16.8.1976 to prove by letting in evidence that it is a public temple and therefore it is a public religious Trust entitled to the benefits of the Government order ? 6. Heard the learned counsel of both sides. 7. The plaintiff Trust is admittedly the owner of the property and the defendant is occupying the property as a tenant. The trial court fixed the monthly rent of Rs.80 per month and passed the decree for arrears of rent as well as delivery of possession. It was upheld by the lower appellate court also. The learned counsel for the defendant / appellant mainly contended that there is no valid notice to quit under section 106 of Transfer of Property Act. Ex.A-2 notice did not terminate the relationship between the parties as there is no termination of tenancy. The plaintiff is a denominational temple and is not exempted from the purview of the Tamil Nadu Buildings (Lease and Rent Control) Act. The appellant is not in arrears of rent. The courts below erred in assuming that the tenancy has been determined as on 30.06.1984 when there is absolutely no such averment in Ex.A-2 notice. 8. Learned counsel for the appellant although raised number of grounds, he confined his contention on two grounds. The first ground urged by him is that there is no valid notice to quit under section 106 of Transfer of Property Act and there is no cause of action to file the suit. The second ground urged is that even under notice Ex.A-2, the tenancy has been determined and, as such, it is not construed as a valid notice under section 106. Perusal of Ex-A2 indicated that the plaintiff has called upon the defendant to pay the arrears of rent. It is further stated that the property is required for demolition and reconstruction of a Kalyana Mandapam. The defendant was called upon to pay the arrears and deliver possession on or before l.7.l984. Ex.A-2 notice was issued on 24.5.1984. Perusal of Ex-A2 indicated that the plaintiff has called upon the defendant to pay the arrears of rent. It is further stated that the property is required for demolition and reconstruction of a Kalyana Mandapam. The defendant was called upon to pay the arrears and deliver possession on or before l.7.l984. Ex.A-2 notice was issued on 24.5.1984. It is therefore evidently clear that sufficient time has been granted to the defendant as provided under section 106 of Transfer of Property Act. Although there is no specific averment that the tenancy has been determined, yet a careful reading of the entire averments would clearly indicate that the tenancy has been determined and thereafter only, the defendant was called upon to deliver possession and to pay the arrears and time was granted till 1.7.1984. 9. Learned counsel for the appellant relied on the decision reported in Bradley v. Atkison, 1885 All. 990 (FB) that it is doubtful whether the document above mentioned was a notice to quit at all. A notice to quit must be certain, at all events in respect of the date of the determination of the tenancy; in other words, there must be a clear and explicit intimation to the tenant as to the date after which he will. If he remains in occupation of the premises, become a trespasser. 10. Learned counsel for the appellant also relied on the decision reported in Ahmed Ali v. Jamal Uddin, AIR 1963 All. 581 that a notice terminating the tenancy may include a demand for possession but a notice only demanding possession cannot be interpreted as a notice terminating the tenancy. 11. Learned counsel for the respondent / plaintiff relied on the decision reported in Bhaganandas v. Bhagnandas, AIR 1977 SC 1120 , wherein it is observed as follows: "A notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed ut res magis valeat quam pereat ........ a valid notice which effectively determined the tenancy of the tenants with effect from the midnight of 31st October, 1962". 12. It has also been held in Baidyanath v. Radheshyam, AIR 1979 Cal. a valid notice which effectively determined the tenancy of the tenants with effect from the midnight of 31st October, 1962". 12. It has also been held in Baidyanath v. Radheshyam, AIR 1979 Cal. 97 that "the notice to quit directed the tenant to deliver up possession on the expiry of the 1st day of Kartick, 1376 or alternatively, at the end of the month of the tenancy which would expire next from the date of service of the notice. Held, the notice was valid . 13. It is, therefore, clear from the aforesaid decisions and discussion that it is a valid notice under section 106 of Transfer of property Act. There is a clear averment that the property is required for demolition and putting up a Kalyana Mandapam and unless the tenancy is determined, there is no possibility of getting possession and after demolition, putting up fresh construction. The intention of the parties can be gathered by reading the document as a whole, and under the circumstance, both the courts below have rightly come to the conclusion and decreed the suit filed by the plaintiff. Moreover, there is no plea in the written statement also relating to the validity of the notice and in the absence of any such plea, it would amount to waiver and it is not open to the appellant to raise at this belated stage also. There is a concurrent finding by the courts below and as there is no illegality or infirmity in the judgments, no interference is called for. 14. For the reasons stated above, the second appeal fails and is dismissed. No costs. Time two months.