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2001 DIGILAW 640 (ALL)

NASIRULLAH ALIAS CHIKHURI v. MOHD. MURTAZA

2001-07-06

U.S.TRIPATHI

body2001
U. S. TRIPATHL, J. ( 1 ) THE defeated defendant has preferred this second appeal against the Judgment and decree dated 31. 3. 1980 passed by Sri R. Singh, the then learned IInd Additional District Judge, Ballia in civil Appeal No. 224 of 1978 allowing the appeal, setting aside the judgment and decree of the trial court dated 27. 7. 1978 In Original Suit No. 12 of 1978 by which the trial court had dismissed the suit. ( 2 ) THE respondent (hereinafter called the plaintiff), filed Suit No. 12 of 1978 against the appellant (hereinafter call the defendant) his real brother, for ejectment of the defendant from the premises in suit and for recovery of arrears of rent amounting to Rs. 50 and pendente lite and further damages at the rate of Rs. 15 per month. The case of the plaintiff, in brief, was that he was owner landlord of room shown in Schedule b of the plaint and defendant was its tenant on monthly rental of Rs. 15. The defendant fell in arrears of rent from 1. 4. 1977 to 31. 7. 1977 which he did not pay despite the service of composite notice of demand and termination of tenancy dated 11. 8. 1977 and also failed to vacate the premises in question ; hence the suit. ( 3 ) THE defendant contested the suit denying the relationship of landlord and tenant between the parties and contending that he was real brother of the plaintiff and house in question of which one room is subject-matter of suit was ancestral property of the parties. His father Fateh mohammad had two wives. The plaintiff and defendant were born from the first wife and four sons were also born from the second wife. After the death of father of the parties, their step-mother and her sons got half share in the northern portion of house and remaining half portion in southern side came in the share of plaintiff and defendant. The southern half portion was further divided between the plaintiff and defendant and room in question came in the share of defendant. The defendant was occupying the above room as owner. The defendant also denied service of notice and raised other legal pleas. The southern half portion was further divided between the plaintiff and defendant and room in question came in the share of defendant. The defendant was occupying the above room as owner. The defendant also denied service of notice and raised other legal pleas. ( 4 ) THE trial court framed necessary issues arising out of above pleadings of the parties and on considering the evidence of the parties held that no relationship of landlord and tenant existed between the parties and the defendant was occupying the house as its owner. The notice was invalid and plaintiff was not entitled to any relief. With these findings, it dismissed the suit, vide judgment and decree dated 27. 7. 1978. ( 5 ) AGGRIEVED with the above judgment and decree, the plaintiff filed Civil Appeal No. 224 of 1978. The lower appellate court reversing the finding of the trial court held that defendant was tenant of the premises in question on monthly rental of Rs. 15 and defendant was also served with the notice under Section 106 of Transfer of Property Act and Section 20 of U. P. Act No. 13 of 1972 by refusal. With these findings, it allowed the appeal and set aside the Judgment and decree of trial court and decreed the suit for ejectment of the defendant from the premises in suit, for recovery of Rs. 81 as arrears of rent and pendents life and future damages at the rate of Rs. 15 per month. ( 6 ) THE above judgment and decree of lower appellate court has been challenged by the defendant in this second appeal. ( 7 ) THE second appeal was admitted on the following substantial questions of law : (1) Whether the finding of the lower appellate court that defendant-appellant was the plaintiff-respondents tenant is vitiated in law? (2) Whether the tenancy, if any, was terminated in accordance with law before the institution of the suit? findings ( 8 ) POINT No. 1 : The contention of the plaintiff was that he was owner/ landlord of the premises in question and defendant was its tenant on monthly rental of Rs. 15 and the tenancy started since January, 1977. The tenanted portion is one Kothari. The defendant denied the relationship of landlord and tenant and contended that house in suit was ancestral property and plaintiff and defendant in partition got southern half portion of it. 15 and the tenancy started since January, 1977. The tenanted portion is one Kothari. The defendant denied the relationship of landlord and tenant and contended that house in suit was ancestral property and plaintiff and defendant in partition got southern half portion of it. which was further divided between the plaintiff and defendant and each of them got one room. The trial court disbelieved the evidence of plaintiff adduced in support of tenancy by discussing it in detail and also pointed out the inherent weaknesses in the statement of the plaintiff and his witnesses on the above point. The trial court has also taken into consideration the situation of the houses in suit and the portion occupied by step mother of the parties and her sons as well as portion occupied by the parties. The lower appellate court simply observed that P. W. 3 Mohammad Shafiq proved the tenancy an minor contradiction in the statement of the plaintiff and P. W. 3 were not sufficient to throw away the case of the plaintiff. ( 9 ) HE further criticised the evidence of defendant and his witnesses and also had taken into consideration some other facts, which were not proved and only suggestion was given to that effect. The following observations of the lower appellate court are worth quoting : the defendant said that he has been separate from both his sons for the last 10 years. He said that his sons had also beaten him. He was given a suggestion that since he was turned out of his sons, he began to live in the rental house given to him by his brother Murtaza. There appears to be truth in the suggestion that the defendant was homeless when he was turned out by his sons after beating. The tenancy between plaintiff and defendant who are real brothers had been settled with the intervention of some persons. There is no reason to disbelieve the same. " ( 10 ) THE above observation of the lower appellate court is based on guess and surmises and suffers from perversity. The trial court has scrutinised the evidence of the parties, their inter se relationship and the occupation of the house by stepmother of the parties and their stepbrothers for which the plaintiff had no explanation. " ( 10 ) THE above observation of the lower appellate court is based on guess and surmises and suffers from perversity. The trial court has scrutinised the evidence of the parties, their inter se relationship and the occupation of the house by stepmother of the parties and their stepbrothers for which the plaintiff had no explanation. Thus, the finding of fact recorded by the trial court was wrongly set aside by the lower appellate court purely on guess and surmises. It was not a case where on the evidence of the parties, two views were possible and the lower appellate court preferred to take one view. In fact, the finding of the lower appellate court is based on no evidence and suffers from perversity and, therefore, the above finding of lower appellate court cannot be sustained. There was also no cogent reason for the lower appellate court to set aside the findings of the trial court on this point. As such, the above finding of the lower appellate court is vitiated in law and cannot be sustained and that of trial court that there existed no relationship of landlord and tenant between the parties is to be restored. Point No. 1 is answered in the affirmative. ( 11 ) POINT No. 2 : The trial court held that the alleged notice was not served on the defendant. It further observed that admittedly, the above notice was not signed either by the plaintiff or by his counsel and therefore, it was invalid. The lower appellate court set aside above finding of the trial court by following observation : "the notice given to the defendant is dated 9. 8. 1977. Through this, he had determined the tenancy. This notice has been refused and has been proved by the plaintiff. No doubt, the notice has not been signed by the plaintiff, but he did prove that notice and said that he had sent this notice. The plaintiff has also filed the envelop in which it has been recorded that "refusal" by the defendant. Therefore, the plaintiff sufficiently proved that the defendant was served with the notice under Section 106 of the Transfer of Property Act and Section 20 of Act No. XIII of 1972. The finding of the learned Munsif on this issue is set aside". Therefore, the plaintiff sufficiently proved that the defendant was served with the notice under Section 106 of the Transfer of Property Act and Section 20 of Act No. XIII of 1972. The finding of the learned Munsif on this issue is set aside". ( 12 ) FROM the above finding of lower appellate court, it is clear that the lower appellate court has observed that there was sufficient service by refusal. But there is no finding regarding validity of the notice. ( 13 ) SECTION 106 of Transfer of Property Act as amended in U. P. by U. P. Act No, 24 of 1954 reads as under : "in the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months notice and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by thirty days notice. Every notice under this section must be in writing signed by or on behalf of the person giving it and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants, at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property. " ( 14 ) THE wordings of the above section show that signing of notice by or on behalf of the person giving it is one of the paramount essential condition to hold a notice valid. it is not disputed that impugned notice did not bear the signature or thumb impression of the plaintiff or of his counsel or any agent authorized on his behalf and an unsigned notice only bearing the typed name of landlord at the end is invalid, as it does not fulfil the requirement of Section 106, Transfer of property Act. it is not disputed that impugned notice did not bear the signature or thumb impression of the plaintiff or of his counsel or any agent authorized on his behalf and an unsigned notice only bearing the typed name of landlord at the end is invalid, as it does not fulfil the requirement of Section 106, Transfer of property Act. The trial court has held on the above ground that the notice is invalid, but the lower appellate court totally escaped the omission of signature and simply relieved its responsibility by observing that notice was served and therefore, the finding of trial court was liable to be set aside and it did not consider the validity of the notice. The notice was thus invalid for want of signature of the plaintiff or his counsel or agent. The finding of lower appellate court contrary to it cannot be sustained. Since, the notice is invalid, the tenancy of-the defendant, if any. was not terminable in accordance with law before the institution of the suit. Point is answered accordingly. ( 15 ) IN view of the findings on above points, the appeal succeeds. The second appeal is accordingly, allowed. The judgment and decree of the lower appellate court are set aside and that of trial court are restored. Accordingly, the suit of plaintiff stands dismissed with costs throughout. .