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2006 DIGILAW 524 (MP)

Shantabai v. Ramesh Chanda

2006-04-13

S.K.GANGELE

body2006
Judgment ( 1. ) THE defendants/appellants have filed this appeal against the judgment and decree passed in Civil Appeal No. 15-A/03 affirming the judgment and decree of eviction passed in Civil Suit No. 21-A/98. ( 2. ) THE appeal was admitted for hearing by this Court vide order dated 3-5-2005 on the following substantial questions of law: (i) Whether the appellants had become the tenants in the suit property by holding over ? (ii) Whether the suit was maintainable without issuing a fresh quit notice when undisputedly the respondent had accepted rent till August, 1997 ? ( 3. ) THE plaintiff which is a Trust filed a suit for eviction against the defendants. The plaintiff pleaded that the father of the defendant Nos. 2,3 and 4 and husband of the defendant No. 1 Tekchand was the original tenant of the plaintiff. After his death the defendants became the tenant on a monthly rent of Rs. 35 per month. The tenancy was oral. the plaintiff wants to reconstruct the Dharmshala which is in dilapidated condition and defendants also sub-let the suit premises. On 30-8-96 a notice to quit was issued to the defendants mentioning the fact that their tenancy had been terminated w. e. f. 30-10-96. It has further been stated in the plaint that the plaintiff accepted the rent upto July, 1997. Thereafter the rent was not accepted and the tenancy was terminated. The defendants in their reply accepted the fact that tenancy was oral and they are the tenants of the plaintiff. They denied the fact that the premises was sublet to other persons. They further submitted that they deposited the rent upto November, 1999. They further pleaded in special pleadings that they are ready to vacate the premises if they be provided an alternative accommodation. The written statement was filed on 17-11-99 and the suit was filed on 11-8-98. ( 4. ) THE plaintiff filed a copy of notices to quit dated 30-8-96 as Exhibits P-7 and P-8. It is specifically stated in the notice to quit that the accommodation was needed for bonafide purpose and the tenancy has been terminated w. e. f. 31-10-96. The defendants in their reply, copy of which has been filed as Exhibit P-9 admitted the fact that they are the tenant and paid the rent upto August, 1997. It is specifically stated in the notice to quit that the accommodation was needed for bonafide purpose and the tenancy has been terminated w. e. f. 31-10-96. The defendants in their reply, copy of which has been filed as Exhibit P-9 admitted the fact that they are the tenant and paid the rent upto August, 1997. It has further been stated in the reply that another Dharmshala was constructed by the Samaj and if a shop be allotted in the aforesaid premises then the defendants are ready to vacate the premises. ( 5. ) THE plaintiff in support of the case examined one Ramesh Chand who was the President of the Trust. He clearly stated that Samaj wants to take possession of the premises and from August, 1997 the rent has not been accepted from the defendants and rent upto July, 1997 was received. The suit premises was needed for the bonafide purpose and for reconstruction of Dharmshala. The Counsel for the defendants did not ask any question from the witness that tenancy of defendants has been renewed after 31-10-96, when it was terminated vide Exhibit P-7. Another witness has been examined as Gendalal P. W. 2 who stated the same facts and Kishorilal P. W. 3 who also stated the same facts. The defendants on their behalf examined Shantabai as D. W. 1, she stated the fact that her husband was the tenant of the shop and after his death she became the tenant of the plaintiff Trust. She also denied the fact that the Trust is a registered Public Trust and the plaintiff is an elected President of the Trust. She stated in Para 6 that her tenancy has not been terminated orally. The another witness examined by the defendants is Sonu Punjabi he also stated the fact that his tenancy has not been terminated, other witnesses who have been examined are Natwarsingh Pawar and Anil. They stated that sons of Shantabai have been doing the business in their shops of watch repairing. ( 6. ) ON the basis of the above evidence documentary and oral, the Trial Court decreed the suit. The Trial Court has specifically held that there was no intention of the landlord Trust to renew the tenancy. Hence, it cannot be presumed that the tenancy was renewed merely on the basis of acceptance of rent. ( 6. ) ON the basis of the above evidence documentary and oral, the Trial Court decreed the suit. The Trial Court has specifically held that there was no intention of the landlord Trust to renew the tenancy. Hence, it cannot be presumed that the tenancy was renewed merely on the basis of acceptance of rent. The same fact has been recorded by the Appellate Court and the Appellate Court dismissed the appeal. ( 7. ) THE learned Counsel for the appellants has submitted that plaintiff accepted the rent after termination of tenancy as mentioned in the notice to quite. Hence, the defendants became holding over and it be presumed that the notice to quit has been waived. In such a circumstances the eviction decree passed against the defendants is illegal. In support of his contention, learned Counsel relied on the judgment of the Honble Supreme Court reported in AIR 2000 SC Page 2796. Contrary to this learned Counsel for the respondent/plaintiff stated that there was no intention of the parties to renew the lease, after termination of the lease. Hence, the notice to quit is valid and the eviction decree passed by both the Courts is as per law. In support of the contention the learned Counsel for the appellants relied on the judgment of this Court reported in 1998 Volume 1 MP Weekly Note 113 and 1973 MPLJ Page 1. ( 8. ) FROM the facts stated above, it is clear that the plaintiff in the plaint has clearly stated that the tenancy was oral and the aforesaid fact has been admitted by the defendants also and in their written statement, vide notices Exhibits P-7 and P-8, dated 30-8-96, the tenancy of the defendants have been terminated w. e. f. 31-10-96. The plaintiff admitted in the plaint and also in the evidence that rent from the defendants was received upto July, 1997 and thereafter the rent was not accepted. The suit was filed on 11-8-98. The defendants in their written statement have only stated the fact that they deposited the rent upto November, 1999. The defendants further stated in the written statement that they were ready to vacate the premises if they be provided the alternative accommodation, as provided to other persons. The suit was filed on 11-8-98. The defendants in their written statement have only stated the fact that they deposited the rent upto November, 1999. The defendants further stated in the written statement that they were ready to vacate the premises if they be provided the alternative accommodation, as provided to other persons. It has further been stated in Para C of special pleadings in the written statement that the aforesaid request was made to the plaintiff and it was turned down. In the aforesaid written statement no where it is pleaded by the defendants that their tenancy has been renewed by the plaintiff or they became the tenant holding over. Contrary to this, the defendants themselves pleaded that they contacted President of the plaintiff for providing alternative accommodation as had been provided to other persons and the request was turned down. The Counsel for the defendants did not ask any question from the witnesses of the plaintiff and P. W. 1, plaintiff himself that the tenancy of the defendants was not extended or renewed after 31-10-96. Only in the evidence D. W. 1, D. W. 2 have stated that the rent was accepted by the plaintiff after 31-10-96 upto July, 1997. Hence, their tenancy have been extended. ( 9. ) SECTION 116 of the Transfer of Property Act prescribes with regard to holding over as under: 116. Effect of holding over.- If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106. ( 10. ) THE Honble Supreme Court in Bhawanji Lakhamshi and Ors. v. Himatlal Jamana Das Dani and Ors. reported in AIR 1972 Page 819, held as under with regard to holding over after the expiry of the term: The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former is a tenant at sufferance in English Law and the latter a tenant holding over or a tenant at will. In view of the concluding words of Section 116 of the Transfer of Property Act, a lessee holding over is in a better position that a tenant at will. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplated is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise. ( 11. ) THE Honble Supreme Court in Shanti Prasad Dev and Anr. v. Shankar Mahto and Ors. reported in AIR2005 SC 2905 , 2005 (4 )ALD116 (SC ), 2005 (3 )AWC2537 (SC ), 2005 (2 )BLJR1608 , (SCSuppl )2005 (4 )CHN119 , 2005 (3 )CTC550 , JT2005 (6 )SC 6 , 2005 (II )OLR (SC )431 , (2005 )5 SCC543 , 2005 (2 )UJ902 (SC ), has held as under with regard to holding over in the circumstances of acceptance of rent after termination of tenancy: The lessor in the present case had neither expressly nor impliedly agreed for renewal. The renewal as provided in the original contract was required to be obtained by following a specified procedure, i. e. , on mutually agreed terms or in the alternative through the mediation of Mukhias and prescribing a particular period and mode of renewal which was "an agreement to the contrary" within the meaning of Section 116 of the Transfer of Property Act. In the face of specific Clauses (7) and (9) for seeking renewal there could be no implied renewal by "holding over" on mere acceptance of the rent offered by the lessee. In the face of specific Clauses (7) and (9) for seeking renewal there could be no implied renewal by "holding over" on mere acceptance of the rent offered by the lessee. In the instant case, option of renewal was exercised not in accordance with the terms of renewal clause that is before the expiry of lease. It was exercised after expiry of lease and the lessee continued to remain in use and occupation of the leased premises. The rent offered was accepted by the lessor for the period the lessee overstayed on the leased premises. The lessee, in the above circumstances, could not claim that he was "holding over: as a lessee within the meaning of Section 116 of the Transfer of Property Act. ( 12. ) THE Honble Supreme Court in C. Albert Morris v. K. Chandrasekaran and Ors. reported in 2006 (1 )ALD106 (SC ), 2006 (1 )AWC229 (SC ), JT2005 (9 )SC 127 , (2006 )1 SCC228 , has held as under: The consensus of the judicial opinion is that a mere continuance in occupation of the demised premises after the expiry of the lease, notwithstanding the receipt of an amount by the quondam landlord, would not create a tenancy so as to confer on the erstwhile tenant the status of tenant or a right to be in possession. In the present case, the notice sent by the landlord to the tenant mentioned that since on the date specified therein the lease period had expired and since, by an earlier notice delivery of possession had been demanded by the landlord, the erstwhile tenants possession was that of a trespasser. The notice added that the amounts paid by the erstwhile tenant to the landlord would be treated as compensation and not amounting to consent. Therefore, it is held that mere acceptance of rent by the landlord, the first respondent herein, from the tenant in possession after the lease has been determined either by efflux of time or by notice to quit would not create a tenancy so as to confer on the erstwhile tenant the status of a tenant or a right to be in possession. ( 13. ) FROM the above judgments of the Honble Supreme Court it is clear that merely by acceptance of rent, a tenant cannot get the status of holding over tenant "in view of Section 116 of the Transfer of Property Act. ( 13. ) FROM the above judgments of the Honble Supreme Court it is clear that merely by acceptance of rent, a tenant cannot get the status of holding over tenant "in view of Section 116 of the Transfer of Property Act. The acceptance of rent can only be one factor in construing the fact of holding over. The Court has to arrive at a conclusion after analysing all the evidence on record that there must be a definite consent by the landlord expressed by acceptance of rent or otherwise". In the present case, the defendants themselves have pleaded that they approached the plaintiff with a suggestion that if they be allotted new shops which were constructed by the plaintiff they were willing to vacate the suit premises and that request was turned down. It clearly shows that plaintiff has never consented to continue the possession of the defendants after the termination of the tenancy by notice to quit. Another fact which has to be seen in the present case, that as per the defendants themselves they deposited the rent upto November, 1999 but after July, 1997 the rent was not accepted by the plaintiff. ( 14. ) IT is the duty of the defendants to plead and prove that the appellant in agreed to continue the possession of the defendants over the suit premises after termination of tenancy and they became the tenant as holding over. In the present case, there is no pleading in the written statement by the defendants neither the witness of the plaintiff had been cross-examined on this point by the Counsel of the defendants. Merely two witnesses of the defendants D. W. 1 and D. W. 2 deposed that after notice to quit the rent was accepted by the plaintiff, hence their tenancy has been continued. The tenancy was oral hence, it could not be inferred that tenancy continued after termination. ( 15. ) THE judgment cited by learned Counsel for the appellant in Bhuneshwar Prasad and Anr. v. United Commercial Bank and Ors. reported in AIR 2000 SC 2796 , is distinguishable in the aforesaid judgment. The initial lease period was from 1st April, 1981 to 31st March, 1986. ( 15. ) THE judgment cited by learned Counsel for the appellant in Bhuneshwar Prasad and Anr. v. United Commercial Bank and Ors. reported in AIR 2000 SC 2796 , is distinguishable in the aforesaid judgment. The initial lease period was from 1st April, 1981 to 31st March, 1986. Thereafter there was a renewal clause and subsequently, the lease was renewed from 1st April, 1986 to 31-3-1991 and thereafter the Bank did not exercise the option for renewal of the lease and the Bank was asked to vacate the premises by 31-5-91 and thereafter the Bank requested the renewal of lease and that was turned down and the Bank thereafter used to deposit the rent in the account of the plaintiff and the rent was accepted. In these circumstances the Honble Supreme Court has held as under: In the present case, the bank from the conduct of the owners has established that the acceptance of increased rent was in token of owners assent to the bank continuing in possession after expiry of the lease, thereby creating lease from month to month within the meaning of Section 116 of the Transfer of Property Act, 1882. But in the present case, the lease was oral, there was no written contract and as per the pleadings of the defendants they requested the plaintiff to provide an alternative accommodation that request was turned down. From the above conduct, it is clear that plaintiff had never agreed to continue the defendants in possession after the period mentioned in the notice to quit. It is further dear from another fact, that after July, 1997 even though the rent was deposited by the defendants upto November, 1999 but the plaintiff did not accept the rent after July, 1997. In such circumstances the defendants cannot be termed a tenant of holding over and it cannot be inferred that the plaintiff waived the notice. In my opinion, in such circumstances, the suit was maintainable. Consequently, I answer the substantial questions of law against the appellants in favour of the respondent. The appeal filed by the appellants is hereby dismissed. No order as to cost.