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2003 DIGILAW 1178 (ALL)

Subodh Kumar v. Zila Parishad, Bulandshahr

2003-05-14

B.K.RATHI

body2003
JUDGMENT B. K. Rathi, J.—This is an appeal against the judgment and decree dated 8.2.1980, passed by Additional District Judge, Bulandshahr in Civil Appeal No. 341 of 1970 arising out of a judgment and decree of Suit No. 115 of 1975. 2. The above suit was filed by the present appellant for eviction of the respondents from the disputed land area 802 sq. yard situated in plot No. 1345. It is admitted that Lala Jamuna Prasad and Ganga Sahai predecessors-in-title of the appellant were Zamindars of the said plot. In the year 1882, it was let out to the Crown. The Civil Surgeon, Bulandshahr A.G. Bilcock executed a registered lease deed in their favour agreeing to pay Rs. 12 per year as rent and that the land shall be used for women’s hospital only. 3. It is alleged by the plaintiff that the women’s hospital has been shifted to another building. That in the building constructed in the disputed land there is veterinary hospital, library and few residences. It is also alleged that the rent had not been paid since 31.3.1952, hence the suit was filed. 4. The respondent contested the suit. However, the fact that the defendant is the tenant of the land and the ownership of the same of the appellant has not been denied. It has been pleaded that tenancy has not been forfeited as there was no clause for forfeiture. That the notice is not valid. That the suit is bad for want of notice under Sections 106, 111 and 114A of the Transfer of Property Act (hereinafter referred to as the T. P. Act) and that the suit is also barred by time. The trial court framed necessary issues and decreed the suit with costs for eviction as well as for recovery of rent. Aggrieved by it the defendant-respondent preferred Civil Appeal No. 341 of 1978 which has been allowed solely on the ground that the notice of termination of tenancy is invalid and tenancy has not been terminated in accordance with law and provisions of Sections 111 (g) and 114A of the T. P. Act have not been complied with. Therefore, this second appeal was filed by the plaintiff. 5. Therefore, this second appeal was filed by the plaintiff. 5. This second appeal was admitted on 10.3.1981, on the substantial questions of law firstly, whether the respondent was a lessee or a licensee of the disputed land and secondly, whether the defendant has done any thing on the land such as to enable the plaintiff to determine the licensee or the lessee as the case may be. 6. I have heard Shri R. B. Singhal, learned counsel for the appellant. None appeared for the respondent and, therefore, could not be heard. However, I have gone through the record. 7. Regarding the first question framed at the time of admission of appeal, it is not disputed that the respondent was a lessee of the disputed premises and the registered lease deed was executed on behalf of the crown by the Civil Surgeon. The said deed is (Ex. I). The lease is not for any fixed period nor it is perpetual lease. Therefore, the lease could be terminated at any time by a notice under Section 106 of the T. P. Act. This lease is only regarding the open land, therefore, the question whether the lease is stood forfeited or not is not very material. The lease has been terminated by the notice as it was not perpetual lease. 8. It may also be mentioned that the lease was executed by the Civil Surgeon and it is specifically mentioned that the land has been taken only for the women’s hospital. Now the property is not being used for the women’s hospital and, therefore, the lease also stood forfeited. 9. The next and the main question that arise for decision is whether the notice of termination of lease deed is invalid. The notice is (Ex. 4). It is clearly mentioned in the notice that the defendant was lessee at the rate of Rs. 12 per year. The intention to terminate the lease and to get the vacant possession of the land has been clearly expressed. However, the appellate court has held that the notice is invalid because two months time have been given to vacate the premises. 10. According to Section 106, T. P. Act, one month’s notice only is required as a lease was not for agricultural or manufacturing purposes. The question is whether the notice is invalid because two months’ time has been granted. 10. According to Section 106, T. P. Act, one month’s notice only is required as a lease was not for agricultural or manufacturing purposes. The question is whether the notice is invalid because two months’ time has been granted. The learned counsel for the appellant has referred to two decisions on this point ; the first is of the case between Rama Kant Gupta v. State of U. P. and another, 1983 (2) ARC 158. In this case a combined notice under Sections 80, C.P.C. and 106, T. P. Act was served and two months’ time was given to vacate the premises. The notice was held to be valid. It has been argued by Shri R. B. Singhal that in the present case two months’ notice was also required to the Zila Parishad and therefore, two months’ time was given to vacate the premises. The other case referred to by the learned counsel for the appellant is the decision of this Court in Sylvania and Luxman Ltd. v. Raminder Singh and another, 1997 (2) ARC 656 . In this case, it was observed by the Court that the Court should be liberal in the interpretation of the notice. 11. I have carefully gone through the notice (Ex. 4). An unequivocal intention to terminate the tenancy has been expressed. However, in place of one month, two months’ time has been given. Therefore, more time was given than required under the law. Therefore, no prejudice has been caused to the defendant. Under the circumstances, the notice cannot be said to be invalid. 12. Accordingly, I find that the first appellate court has erred in finding that the notice is invalid. The appeal is therefore, fit to be allowed. 13. The appeal is allowed with costs and the judgment and decree of the appellate court are quashed and that of the trial court are restored.