Research › Search › Judgment

Madras High Court · body

2005 DIGILAW 1255 (MAD)

K. Kuppusamy v. Sri Vembuli Amman Temple

2005-08-03

R.BANUMATHI

body2005
Judgment :- This second appeal arises out of the concurrent Judgment and Decree of the Courts below - Principal District Judge, Vellore, made in A.S.No.24/2001, dated 28.09.2001, confirming the Judgment and Decree made in O.S.No.1023/1985 by the Principal District Munsif, Vellore dated 30.03.2001. Unsuccessful Defendant is the Appellant. 2. Plaintiff is a temple – Sri Vembuliamman Temple. Case of the Plaintiff Temple is that the suit premises – Shop bearing D.No.157, Long Bazaar, Vellore was let out to the Defendant for a monthly rent of Rs.225/-. The Defendant has been running a flour mill shop therein. Tenancy between the Plaintiff temple and the Defendant is an oral tenancy. For insufficiency of space, for keeping articles including the temple Vaganam, the Plaintiff Temple requires the suit premises for own use and occupation. The Plaintiff temple issued the statutory notice under Section 106 of the Transfer of Property Act, on 29.04.1985. The said notice was issued to the Defendant giving clear fifteen days' notice. The Defendant received the notice and issued a reply on 04.05.1985, containing false allegations. The registered notice subsequently was returned unserved on 08.05.1985. The tenancy was terminated by giving fifteen days' clear notice ending with English Calendar month 31.05.1985. Since the Defendant received the said notice before 04.05.1985, the Defendant is bound to hand over vacant possession of the demised premises to the Plaintiff on 01.06.1985. Since the Defendant failed to vacate the premises, the Plaintiff has filed the suit for eviction. The Plaintiff being a temple, the provisions of Rent Control Act does not apply to the tenancy. 3. Opposing the suit for eviction, the tenant - Defendant filed the Written Statement contending that originally suit premises was old and was in dilapidated condition without any roof and unfit for occupation. After being let out, the Defendant had put up new construction and the present superstructure does not belong to the Plaintiff temple. The Defendant is entitled to claim the benefits under the Madras City Tenants Protection Act. The Defendant is also willing to pay market price of the suit property to the Plaintiff Temple. The Defendant is now paying rent of a sum of Rs.225/- per month. The Defendant is earning his livelihood only from the suit property. The requirement of the Plaintiff temple is not bonafide. Notice to quit is not in accordance with law. The Defendant is also willing to pay market price of the suit property to the Plaintiff Temple. The Defendant is now paying rent of a sum of Rs.225/- per month. The Defendant is earning his livelihood only from the suit property. The requirement of the Plaintiff temple is not bonafide. Notice to quit is not in accordance with law. Since the premises was let out for manufacturing purpose, in law, six months' notice ought to have been given. For want of proper notice, the suit is liable to be dismissed. Since the Defendant is doing business in the premises, if he is evicted, it would cause him irreparable loss. Since there is no bonafide requirement, the suit is liable to be dismissed with cost. 4. To substantiate their case, on behalf of the Plaintiff, PW-1, a Clerk attached to the Plaintiff Temple was examined. Exs.A-1 to A-14 were marked. On behalf of the Defendants, D.W.s 1 and 2 were examined. Exs.C-1 and C-2 were marked. Upon consideration of the evidence, the trial court referring to the rental receipts Exs.A-5, A-6 and A-11 and a number of other decisions, held that the lease is from month to month. The trial court had also found that the temple had let out the premises including the building and hence the provisions of the Madras City Tenant's Protection Act is not applicable. Finding that the building belongs to the suit Temple, administered by the Hindu Religious and Charitable Endowments, the trial court found that the demised premises is required for keeping the articles of the temple and Vaganam and ordered eviction. 5. Confirming the findings of the trial court, the learned District Judge referring to Exs.A-5, A-6, A-11 and A-14 held that those documents clearly establish that the tenancy is only on monthly basis. Pointing out to Exs.A-11 to A-14, (wherein the Appellant himself has admitted his readiness to pay the rent on monthly wise), the learned District Judge negatived the plea of the Appellant that the tenancy was a yearly tenancy. The contention raised by the Appellant that the requirement of Section 106 of the Transfer of Property Act has not been complied with was negatived by the First Appellate Court also. The First Appellate Court has also relied upon AIR 1995 SC 2482 . 6. Aggrieved over the concurrent findings of the Courts below, the Appellant Tenant has preferred this second appeal. The First Appellate Court has also relied upon AIR 1995 SC 2482 . 6. Aggrieved over the concurrent findings of the Courts below, the Appellant Tenant has preferred this second appeal. The Second Appeal was admitted on the following substantial questions of law: - 1. When the Courts below having found the admitted case that lease of the property being immovable and also for manufacturing purposes which under Section 106 of the Transfer of Property Act, shall be deemed to be lease from year to year terminable on the part of Lessor or Lessee by six months notice, whether the reasoning and conclusion of the Court below that the lease is to be considered as monthly tenancy and hence Sec.106 of Transfer of Property Act is not applicable, is sustainable in law? 2. When the Courts below has seen Sec.106 of T.P. Act which contain three main ingredients i.e. a. In the absence of a contract to the contrary; b. Lease of immovable property; and c. lease for manufacturing purposes; and When all these conditions are satisfied under Section 106 of Transfer of Property Act, the Courts below should have held the six months notice is absolutely necessary and not fifteen days notice? 3. In the facts and circumstances of the case and the decision cited under Section 106 T.P. Act, whether the notice issued under Ex.A-1 dated 29.04.1985 is valid in law? 7. The learned counsel for the Appellant Tenant has contended that the tenancy being for manufacturing purpose, which is from year to year terminable only by six months' notice. The learned counsel for the Appellant further contended that there is no proper compliance of Section 106 of the Transfer of Property Act and contended that Ex.A-1 is not a valid Notice. Reiterating that the lease had been for manufacturing purpose, it is submitted that in the absence of contract to the contrary, as per section 106 of the Transfer of Property Act, six months notice for termination of the tenancy is necessary. In this regard, reliance has been placed upon AIR 1971 Mysore 365 and 1998 1 CTC 517 . It is the contention of the Appellant that when the lease is of immovable property, let out for manufacturing purposes, the Courts below erred in saying that Ex.A-1 satisfies the conditions under Section 106 of the T.P. Act. 8. In this regard, reliance has been placed upon AIR 1971 Mysore 365 and 1998 1 CTC 517 . It is the contention of the Appellant that when the lease is of immovable property, let out for manufacturing purposes, the Courts below erred in saying that Ex.A-1 satisfies the conditions under Section 106 of the T.P. Act. 8. Placing reliance upon JT 1995 SC 185, the learned counsel for the Respondent/Plaintiff Temple has contended that if the lease is not from year to year, the termination of lease does not require six months notice. Drawing the attention of the Court to the findings of the Courts below, the learned counsel for the Respondent/Plaintiff Temple has submitted that the Courts below have rightly referred to the records and on that basis, rightly found that the lease is only on a monthly basis and that Ex.A-1 - Notice is valid under law. It is further submitted that when the concurrent findings of the Courts below is that the lease is from month to month and that six months time of notice is not required, that concurrent finding does not suffer from serious error of law calling for interference. 9. The suit property is the shop premises in Vellore, Long Bazaar, bearing Door No.157. The shop was let out to the Defendant on an oral lease. Rent was steadily enhanced and at the time of termination of the lease, the rent was Rs.225/- per month. Case of the Defendant was that he had put up new construction and the superstructure does not belong to the Plaintiff Temple. According to him, he is entitled to the benefits of the Madras City Tenants Protection Act. In his evidence, PW-1 – Clerk of the Plaintiff Temple has stated that the premises with the superstructure was let out to the Defendant. The Defendant has not produced any document showing that he has put up the superstructure. Exs.A-6 and A-7 are the receipts for property tax for the demised property for 1968 and 1974-75I for D.No.157 evidence showing that the assessment is levied in the name of Plaintiff Temple by its Executive Officer is the assessee for D.No.157. The Plaintiff's Temple had been issued Ex.A-8, Special Notice Of Property Tax New Assessment Or Amendment for 1993-94/2. Exs.A-6 and A-7 are the receipts for property tax for the demised property for 1968 and 1974-75I for D.No.157 evidence showing that the assessment is levied in the name of Plaintiff Temple by its Executive Officer is the assessee for D.No.157. The Plaintiff's Temple had been issued Ex.A-8, Special Notice Of Property Tax New Assessment Or Amendment for 1993-94/2. If really the Defendant had put up the superstructure, the Defendant would have certainly raised objection for the levy of house tax and for issuance of revised property Tax Assessment in the name of the Plaintiff Temple. The conduct of the Defendant falsifies his contention that he has put up the superstructure. 10. In Exs.A-4, A-11 and A-14 representations to the Executive Officer of the Plaintiff Temple, the Plaintiff has clearly stated that he had only repaired the superstructure. In those representations he has stated, "mJt[k; Xl;L fl;olk; jhd;/ vdnt fl;olj;ij vdJ brhe;j brytpy; fl;o ,Uf;fpnwd;/" When the Defendant himself has stated that he has only renovated the superstructure, his contention that he has put up the superstructure for running rice mill has no basis. 11. Demonstrably, the Plaintiff Temple is the owner of the superstructure. When the Defendant has not put up the superstructure, the Defendant cannot claim benefits under the Madras City Tenants Protection Act. Amendment Act 2 of 1996 has excluded the lands owned by Religious Institutions and Religious Charities belonging to Hindu, Muslim, Christian and other Religious Institutions. The Amendment Act takes away the benefit of Section 3, claiming the compensation and benefit of Section 9 – Right to purchase the site. The Constitutional validity of Act 2 of 1996 has been upheld by the Full Bench of this Court reported in 2003 (2) CTC 129 (N.Sreedharan Nair Vs. Mottaipatti Chinna Pallivasal Muslim Jamath by its Managing Trustee). Rightly, the Courts below have recorded the concurrent finding that the Defendant is not entitled to the benefits of the Madras City Tenants Protection Act. Rightly, that concurrent finding is not assailed by the Appellant/Defendant. 12. The main contention put forth is that Ex.A-1 – Notice issued is not in accordance with Sec. 106, T.P. Act and is not valid. Before instituting the suit for eviction, the Plaintiff Temple issued Ex.A-1 - Notice (dated 29.04.1985), terminating the tenancy by giving the Defendant fifteen days' notice ending with English Calendar month i.e. 31.05.1985. 12. The main contention put forth is that Ex.A-1 – Notice issued is not in accordance with Sec. 106, T.P. Act and is not valid. Before instituting the suit for eviction, the Plaintiff Temple issued Ex.A-1 - Notice (dated 29.04.1985), terminating the tenancy by giving the Defendant fifteen days' notice ending with English Calendar month i.e. 31.05.1985. The Defendant was called upon to evict the premises on 31.05.1985 and hand over vacant possession of the same to the Plaintiff Temple on 01.06.1985. Ex.A-1 Notice was returned. Though the notice was returned, the Plaintiff had sent Ex.A-4 - Reply (Dated 4.5.1985). Thus Ex.A-1 Notice issued on 29.04.1985 terminates the tenancy with the English Calendar Month ending with 31.05.1985. Issuance of fifteen days' notice for terminating the tenancy is mainly objected on the ground that the lease had been for manufacturing purposes – for running the flour mill. According to the Defendant, the lease was for manufacturing purposes and under Section 106 of Transfer of Property Act, the tenancy shall be deemed to be from year to year and six months' clear notice is required for terminating the tenancy. 13. In support of the contention that in a lease for manufacturing purpose, notice for terminating tenancy is to be of six months duration, the learned counsel for the Appellant/Tenant has relied upon AIR 1971 Mysore 365, [John Augustine Peter Mirande and another Vs. Datha Naik] wherein the Court has held: "Where the tenant was carrying on bakery business and subsequently installed a saw mill in the premises with the consent of the landlord the lease must be held to be one for a manufacturing purpose and notice for terminating such lease must be of six months duration and not of fifteen days duration." 14. Contending that flour mill is a manufacturing purpose, for which six month clear notice is necessary, on behalf of the Defendant, reliance is also placed upon AIR 1982 SC 127 . Explaining the ingredients of "manufacturing purposes", the Supreme Court has held that running flour mill is a manufacturing purpose and in the absence of contract to the contrary, the lease was one from year to year, that could be terminated only by giving six months notice under Section 106 of the Transfer of Property Act. Explaining the ingredients of "manufacturing purposes", the Supreme Court has held that running flour mill is a manufacturing purpose and in the absence of contract to the contrary, the lease was one from year to year, that could be terminated only by giving six months notice under Section 106 of the Transfer of Property Act. The decision of the Supreme Court is as under: "The tests for determining whether a lease is granted for purpose of "manufacturing process" are as follows:- 1. That it must be proved that a certain commodity was produced; 2. That the process of production must involve either labour or machinery; 3. That the end product which comes into existence after the manufacturing process is complete, should have a different name and should be put into a different use. In other words, the commodity should be so transformed so as to lose its original character. AIR 1973 SC 425 ; AIR 1968 SC 922 and AIR 1963 SC 791 , Rel. on AIR 1946 Cal 317 and AIR 1971 Mys.365. In the instant case what happened was that wheat Written Statement transformed, by the manufacturing process which involved both labour and machinery into flour. Thus in the instant case all the three tests have been fully satisfied and thus the lease was one for manufacturing process and could be terminated only by giving six months notice under Section 106 of the T.P. Act." For the similar proposition, reliance is also placed upon 1998 1 CTC 517 [S.S.K.S.Baskaran (died) and 4 others Vs. N.Thiruganansundaram Pillai] wherein D.Raju, J. has held that in the absence of rental agreement between the parties, the suit property let out for running saw mill is the lease from year to year. 15. In the light of the contentions and the above decision, what is required to be considered is whether the lease in the present case was a lease for manufacturing purpose and whether the lease was a oral or monthly lease as per the terms of the oral lease. 15. In the light of the contentions and the above decision, what is required to be considered is whether the lease in the present case was a lease for manufacturing purpose and whether the lease was a oral or monthly lease as per the terms of the oral lease. To appreciate the contentious points urged, it is necessary to extract Section 106 of Transfer of Property Act: "106.Duration of certain leases in absence of written contract or local usage: 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 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 fifteen days' notice." 16. Section 106 of Transfer of Property Act would be applicable only in the absence of a contract. Emphasis is on the words, "in the absence of a contract to the contrary". Only if there is no contract, or no lease agreement between the parties, the lease for immovable property or manufacturing purpose shall be deemed to be lease from year to year (as per Sec.106 of T.P. Act). Overwhelming evidence is available showing that the lease is monthly lease. Let us elaborate the same. 17. Admittedly, the tenancy is a oral one. In Ex.A-1 Notice, it is clearly stated that the tenancy is a oral one and according to the English Calendar month, in Ex.A-4 - Reply Notice, Defendant has not denied the tenancy of English Calendar Month. In Ex.A-4 Notice, the Defendant has also stated that the rent is payable per month. Contending that the present rent of Rs.225/- is very high, the Defendant has stated :: "The original rent of Rs.25/- per mensem was gradually increased to Rs.100/- in 1975. Thereafter, after exchange of notices the present rent is Rs.225/- which is very high." Thus the Defendant himself has admitted that the tenancy is a monthly tenancy and the rent is payable per month. Thereafter, after exchange of notices the present rent is Rs.225/- which is very high." Thus the Defendant himself has admitted that the tenancy is a monthly tenancy and the rent is payable per month. Likewise, in Exs.A-11 and A-14, representations to the Executive Officer, the Defendant has clearly stated about the monthly rent payable : "khjk; 1f;F Kd; thlif U:/100- ,Ug;gij nky; bfhz;L U:/50- nrh;j;J khjk; 1f;F U:/150- xU E}w;W Ik;gJ tPjk; 1.4.1980 Vg;uy; Kjy; ehd; bfhLf;f rk;kjpf;fpnwd;/ ///////// khjk; 1f;F Kd; thlif U:/175- ,Ug;gij nky; bfhz;L U:/50- nrh;j;J khjk; 1f;F U:/225- ,U E}w;wp ,Ug;j;jp Ie;J tPjk; 1.1.1984 $dthp Kjy; ehd; bfhLf;f rk;kjpf;fpnwd;/"0 18. Thus the statement of the Defendant in Exs.A—11 and A-14 clearly show that the lease is a monthly lease. When there is clear contract/lease agreement between the parties for the monthly lease, it is not open to the Defendant to invoke the deeming provision of Section 106 T.P. Act, contending that lease is for manufacturing purpose and that notice for termination of such lease must be of six months' duration, that contention has been rightly negatived by the Courts below. 19. It is relevant to note that the contention of the Defendant that the lease could be terminated only by notice of six months' duration is neither put forth in Ex.A-4 - Reply Notice nor during the trial. In his evidence, PW-1 – Clerk of the Plaintiff Temple has stated that "me;j mwptpg;gpy; gpujpthjpf;F rl;lg; g{h;tkhd fhyk; 15 ehl;fSf;f nkw;bfhz;Lk; bfhLf;fg;gl;Ls;sJ/" On this aspect, PW-1 was not cross-examined that the tenancy is only an annual lease and for terminating the same, notice of six months duration is necessary. He was neither cross examined nor suggestions were put to him on that aspect. In fact, as discussed earlier, the monthly lease was admitted by the Defendant. During the entire cross-examination of PW-1, the only suggestion was that the Defendant was entitled to the benefit of the Madras City Tenants Protection Act. Referring to Exs.A-4, A-11 and A-14, the Courts below have rightly held that the tenancy is only monthly tenancy. In view of the lease agreement between the parties, the deeming provision of Sec.106 Transfer of Property Act cannot be invoked. 20. When the lease is from month to month, the deeming provision of Sec.106 T.P. Act cannot be invoked. In JT 1995 (7) SC 105, [Shri Janki Devi Bhagat Trust, Agra Vs. In view of the lease agreement between the parties, the deeming provision of Sec.106 Transfer of Property Act cannot be invoked. 20. When the lease is from month to month, the deeming provision of Sec.106 T.P. Act cannot be invoked. In JT 1995 (7) SC 105, [Shri Janki Devi Bhagat Trust, Agra Vs. Ram Swarup Jain (dead by Lrs.], the Supreme Court has held: "In the present case there is a clear finding to the effect that the lease in question was not from year to year or for a period exceeding one year. Therefore, even though the lease may be for a manufacturing purpose, since the lease was not from year to year, six months' notice was not required. A manufacturing lease which is not from year to year does not require six months' notice of termination. It will fall in the second half of Sec.106, requiring fifteen days' notice of termination. A lease from month to month or a lease other than a lease from year to year is terminable by fifteen days' notice. Hence the notice in the present case is valid notice to quit. The High Court, having come to the conclusion that the lease was not for a period exceeding one year, and was not a lease from year to year erred in holding that six months' notice to quit was required. Such a notice is required, provided there is no contract to the contrary, only when a manufacturing lease is, or is deemed to be, from year to year. This not being the case, the lease is terminable by fifteen days' notice even if the lease is a manufacturing lease" (underlining added). The above principle squarely applies to the case in hand. 21. The lease between the Plaintiff temple and the Defendant has been only on monthly basis. The lease was terminated by issuance of Ex.A-1 notice dated 29.04.1996, giving fifteen days' clear notice terminating the tenancy by the end of May 1995. Fifteen days' clear notice was given for terminating the tenancy. Hence Ex.A-1 is well in accordance with Sec.106 T.P. Act. No valid objection could be raised that the notice issued is in accordance with Sec.106 T.P. Act. 22. The Courts below have rightly appreciated the evidence and recorded well balanced reasoning’s. There is no serious or substantial error either in the assessment of evidence or the approach of the trial court. No valid objection could be raised that the notice issued is in accordance with Sec.106 T.P. Act. 22. The Courts below have rightly appreciated the evidence and recorded well balanced reasoning’s. There is no serious or substantial error either in the assessment of evidence or the approach of the trial court. The concurrent findings of the Courts below do not suffer from any serious error warranting interference. This second appeal has no merits and is bound to fail. 23. Therefore, Judgment and Decree passed by the Principal District Judge, Vellore, in A.S.No.24/2001, dated 28.09.2001, confirming the Judgment and Decree made in O.S.No.1023/1985 by the Principal District Munsif, Vellore Dated 30.03.2001 are confirmed and this second appeal is dismissed with the cost of the Plaintiff Temple. Two months time is granted to the Appellant/Defendant to deliver vacant possession of the Plaintiff Temple.