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2006 DIGILAW 3355 (MAD)

Thanapal v. Sakunthala

2006-12-06

M.CHOCKALINGAM

body2006
Judgment :- 1. When the matter is taken up for hearing, both the counsel request that the Second Appeal could be disposed of. Accordingly, the Second Appeal is taken up for hearing. 2. This Second Appeal has been brought forth by the plaintiff, whose claim for recovery of possession before both the Courts below was negatived. 3. The plaintiff put forth the claim of recovery of possession alleging that the property belonged to Mariamman Temple; that he is the exclusive owner of the same; that the property was leased out under Ex.A.5, agreement of lease, dated 25.7.1989 to the defendant; that the defendant should pay the monthly rent of Rs.3/-; that the defendant has been carrying on cycle shop; that Ex.A.5 is not a registered deed; that when a demand was made for vacating the premises by sending a notice under Ex.A.1, dated 8.5.1995, the defendant did not vacate the same; that he gave a reply notice with a false allegation; which compelled the plaintiff to file the Suit for recovery of possession. 4. The Suit was resisted by the defendant stating that the alleged property belonged to Mariamman Temple; that the plaintiff had no locus standi to file the Suit; that apart from that, it is mentioned in Ex.A.5 that the monthly rental of Rs.3/- is payable annually also; that the lease is terminable by giving 6 months notice; that he was given only 15 days time; that the notice was not a valid one and hence, the Suit was to be dismissed. 5. The Trial Court framed necessary issues, tried the suit and dismissed the same, accepting the defence plea and recording a finding that the notice was not valid. Aggrieved the plaintiff took it on appeal, but the Trial Court judgment was affirmed and hence, this Second Appeal has been brought forth at the instance of the plaintiff. 6. 5. The Trial Court framed necessary issues, tried the suit and dismissed the same, accepting the defence plea and recording a finding that the notice was not valid. Aggrieved the plaintiff took it on appeal, but the Trial Court judgment was affirmed and hence, this Second Appeal has been brought forth at the instance of the plaintiff. 6. The learned counsel for the appellant submits that in the instant case, it is an admitted position that the property belonged to Mariamman Temple and the plaintiff is the owner of the same; that there was a notice issued and there was a reply notice also; that the ownership of the property is not disputed; that apart from that, once the tenancy between the plaintiff and the defendant is an admitted position, the defendant is stopped from questioning the title of the plaintiff; that it is mentioned under Ex.A.5, deed that the monthly rent of Rs.3/- can be paid as annual rental of Rs.36/-; that in the case of agricultural lease or lease for manufacturing purpose, the tenancy is regarded as yearly tenancy, which is terminable by giving 6 months notice. The learned counsel relying o a decision of the Supreme Court reported in Ram Kumar Das v. Jadgish Chandra Deo Dhabal Dee and Another, AIR 1952 SC 23 submits that in a case where the lease is not for the purpose of agricultural or manufacturing purpose, it should be construed only as monthly rental; that in the instant case, Ex.A.5 was not registered; that in the instant case the lease is for the other purpose, except the one for manufacturing or agricultural purpose and under these circumstances, the said decision has got to be applied and it has got to be inferred that the lease is for monthly tenancy and the notice was issued by the plaintiff to the defendant was valid in the eye of law and that the Courts below have erroneously negatived the claim of the plaintiff and hence, it is a fit case where it has got to be ordered. 7. Heard the learned counsel for the respondent. 7. Heard the learned counsel for the respondent. According to him, it is a case where the rental of Rs.3/- per month is also payable annually for a sum of Rs.36/- towards the lease amount and it has been paid by the defendant on the request of the plaintiff annually and under these circumstances, the decision cited by the plaintiff is not applicable to the present facts of the case; that both the Courts below were perfectly correctly in recording a finding that the notice was not valid and hence, the Suit was to be dismissed. 8. After hearing the submissions of the learned counsel on either side, the Court is of the considered opinion that it is a fit case where decree should have been granted. It is not in dispute that the plaintiff is the owner of the property. The defendant has executed Ex.A.5, lease deed, dated 25.7.1989. It is also clearly mentioned in Ex.A.5 that the monthly rental of Rs.3/- is payable annually at the rate of Rs.36/-. The rental has been paid by the defendant and it has been receive so. It is true Ex.A.5 is not a registered one. But, at the same time, from the decision cited above, it is clearly found that even though in a deed, which remains unregistered, the lease amount is payable annually, if it is not for the purpose of agricultural or manufacturing, it should be construed only as monthly lease. Under these circumstances, applying the said principle, the Court feels no impediment to hold that the notice issued by the plaintiff to the defendant under Section 106 of the Transfer of Property Act giving 15 days, time is valid in the eye of law. Both the Courts below have negatived the relief only on the question of notice issued by the plaintiff under Section 106 of the Act. Applying the decision referred to above, the Court is of the considered opinion that the notice issued is valid in the eye of law and hence, there is no impediment in granting the relief to the plaintiff Accordingly, the judgments of both the Courts below are set aside. This Second Appeal is allowed. No costs. Consequently, connected C.M.P. is closed. 9. This Second Appeal is allowed. No costs. Consequently, connected C.M.P. is closed. 9. Considering the facts and circumstances of the case and the learned counsel for the respondent submits that reasonable time has got to be granted to vacate the premises, the Court is of the considered opinion that it is a fit case where one year time has got to be granted to the respondent to vacate the premises. Accordingly, one year time is granted to the respondent to vacate the premises and hand over the possession to the plaintiff, failing which, as per the decree passed, the plaintiff is entitled to file execution proceedings before the Trial Court in accordance with law.