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2007 DIGILAW 410 (ORI)

MAHESWAR SINGH v. RADHAMADHAB JEW THAKUR

2007-06-18

A.K.PARICHHA

body2007
( 1 ) THIS appeal is directed against the judgment and decree dated 15-9-2005 and 29-9-2005 respectively passed by the learned District Judge, Cuttack in rfa No. 132 of 2004 confirming the judgment dated 21 -9-2004 passed by the learned civil Judge (Junior Division), Second Court, cuttack in Title Suit No. 164 of 2001. ( 2 ) THE present respondent, as plalntiff, filed the above noted suit for eviction of the present appellant from the suit house and for recovery of arrear rent. The plaintiffs case in essence is that the defendant was inducted as a tenant in the suit house as monthly tenant on the basis of the agreement dated 24-4-1969, but even after ex-piry of the period of tenancy contemplated in the agreement, defendant did not give vacant possession of the house for which a notice wilder Section 106 of the T. P. Act was served and the suit for eviction and arrear rent was filed. Defendant in his written statement took the plea that the lease agreement dated 24-4-1969 was for a period of 60 years and accordingly, he is running a mill on the premises and therefore, the period of lease has not expired. He took a further plea that statutory notice under Section 106 of the t. P. Act was not served on him and therefore, the suit for eviction was not maintainable. The learned trial Court framed four issues and on consideration of the evidence produced by the parties, came to hold that the period of tenancy as per the agreement was for 10 years and the said period has expired, that the notice under Section 106 of the T. P. Act was served on the defendant and accordingly decreed the suit for the plalntiff. The defendant challenging the said judgment and decree carried the matter before the learned District Judge, Cuttack in the above noted appeal. The said appeal having been dismissed and the findings of the learned trial Court having been confirmed, the present appeal has been filed. ( 3 ) THE following substantial questions of law were formulated for consideration in this appeal. (i) Whether the Courts below are justified in holding that the notice under Section 106 of the T. P. Act terminating the tenancy of the defendant is not necessary in the present case? ( 3 ) THE following substantial questions of law were formulated for consideration in this appeal. (i) Whether the Courts below are justified in holding that the notice under Section 106 of the T. P. Act terminating the tenancy of the defendant is not necessary in the present case? (ii) When the tenancy was started on 24-4-1969 and notice under Section 106 of the t. P. Act was issued on 11-12-1997 terminating the tenancy with effect from 31-12-1997, whether the notice was a valid one as per the provisions of Section 106 of the T. P. Act? ( 4 ) MR. D. P. Mohanty, learned counsel for the appellant submits that when the appellant is continuing in possession of the suit premises, even after expiry of the period of tenancy, he continues to be a tenant by holding over as per the provisions of Section 116 of the T. P. Act and therefore, notice under Section 106 of the T. P. Act was mandatory. He states that no notice under section 106 of the T. P. Act having been served, the suit for eviction was not maintainable. He cites the cases of Satish Ch. Makhan and others v. Govardhan Das Byas and others, AIR 1984 SC 143 in support of his continuation. ( 5 ) MR. S. Samantaray, learned counsel for the respondent, on the other hand submits that in view of Section 111 of the T. P. Act, once the period of tenancy expires, the tenant is liable for eviction and no notice under Section 106 of the T. P. Act is necessary. He submits that even if no notice is necessary in the present case, service of notice under Section 106 of the T. P. Act on the defendant-appellant was clearly proved and therefore, the Courts below had every justification of saying that the suit was maintainable and not hit under Section 106 of the T. P. Act. He cites the cases of Shanti prasad Devi and another v. Shankar Mahto and others, AIR 2005 SC 2905 and A. Rajeswari v. Brundaban Mohapatra, 94 (2002) CLT 212 : AIR 2003 (NOC) 104 (Ori. ). ( 6 ) BEFORE delving into the merit of the rival contentions of learned counsel for both the parties, it will be appropriate to quote the relevant provisions of T. P. Act involved in the present case. "106. ). ( 6 ) BEFORE delving into the merit of the rival contentions of learned counsel for both the parties, it will be appropriate to quote the relevant provisions of T. P. Act involved in the present case. "106. Duration of certain leases in absence of written contract or local usage (1) 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 fifteen days' notice. (2) Notwithstanding anything contained in any other law for the time being in force the period mentioned in sub-section (1) shall commence from the date of receipt of notice. (3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, here a suit or proceeding is filed after the expiry of the period mentioned in that subsection. (4) Every notice under sub-section (1)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. 111. Determination of lease A lease of immoveable property determines (a) by efflux of the time limited thereby; (b) where such time is limited conditionally on the happening of some event by the happening of such event; (c) where the interest of the lessor in the property terminates on, or his power to dis -. 111. Determination of lease A lease of immoveable property determines (a) by efflux of the time limited thereby; (b) where such time is limited conditionally on the happening of some event by the happening of such event; (c) where the interest of the lessor in the property terminates on, or his power to dis -. pose of the same extends only to, the happening of any event by the happening of such event; (d) in case the interests of the lessee and the lessor in the whole of the property becomes vested at the same time in one person in the same right; (e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them; (f) by implied surrender; (g) by forfeiture; that is to say, (1) in case the lessee breaks on express condition which provides that, on breach thereof, the lessor may re-enter or (2) in case the lessee renounces his character as such by setting up a title in a third person or by clalming title in himself; (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease; (h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other, ( 7 ) SECTION 106 in essence says that a lease of immoveable property or other than agricultural or manufacturing process will be deemed to be a lease from month to month and in case of such monthly tenancy, fifteen days' notice is to be essentially served on the tenant before seeking his eviction. Section 111 (a) says that the lease of immovable properties automatically determines by efflux of time limited thereby. So, if a specific period is prescribed in the agreement for the lease/tenancy, then on expiry of such period, tenancy terminates and in such event as has been said in the case of a. Rajeswari (supra), no notice under Section 106 of the T. P. Act is necessary before the suit for eviction is brought. So, if a specific period is prescribed in the agreement for the lease/tenancy, then on expiry of such period, tenancy terminates and in such event as has been said in the case of a. Rajeswari (supra), no notice under Section 106 of the T. P. Act is necessary before the suit for eviction is brought. Section 116 of the T. P. Act, however, says that 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 would in the absence of an agreement to the contrary be 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. As has been clarified in the case of Shanti prasad Devi and another (supra) simple continuance of the tenant in the premises after the expiry of the lease period or simple acceptance of rent by the landlord would not amount to assent. However, once a tenancy continues under law by holding over, then automatically before seeking eviction, the tenant has to be informed through a notice that such tenancy is terminated. In other words, notice under Section 106 of the T. P. Act would be necessary in case of a tenant by holding over. This view finds support from the observation of the apex Court in the case of Satish Ch. Makhan (supra ). ( 8 ) IN the present case, the learned Courts below after considering the evidence have held that tenancy was for a fixed period and that period has expired, and so the tenancy has come to an end as per the provisions of section 111 (a) of the T. P. Act and that notice under Section 106, of the T. P. Act is not necessary. Learned Courts below have also come to the conclusion that even though notice under Section 106 is not necessary, yet the notice terminating the tenancy was served on the defendant-appellant. These findings are on factual aspects and have been recorded after considering the evidence on record. So this Court of second appeal cannot now re-analyse the evidence on such aspect and record its own finding. These findings are on factual aspects and have been recorded after considering the evidence on record. So this Court of second appeal cannot now re-analyse the evidence on such aspect and record its own finding. Be that as it may, the defendant-appellant in his written statement never took any plea that he is a tenant by holding over and is entitled to the benefits of Section 116 of the t. P. Act. On the contrary, his plea was that tenancy was for a period of 60 years and that he is not liable to pay anyfent and is also not paying any rent. That apart, there was also no evidence to show that the respondent accepted rent from the appellant even after the period of lease was over or that he assented to the continuance of the appellant as tenant in the suit premises. That being the pleading of the defendant-appellant and the evidence available, there is no scope to hold that the defendant-appellant is entitled to the protection of Section 116 of the T. P. Act. ( 9 ) REGARDING the second question of law, mr. Mohanty fairly concedes that after amendment of Section 106 of the T. P. Act, it is no more necessary for period of notice to end on the last date of the month and that only 15 days notice is necessary. The substantial questions of law are accordingly answered against the appellant. Consequently, the findings recorded by the learned courts below are confirmed and the appeal is dismissed on contest with cost. Appeal dismissed. .