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2009 DIGILAW 844 (ORI)

Bajaranglal Lacha v. Maniklal Bhattar

2009-10-29

M.M.DAS

body2009
ORDER 29.10.2009 — Heard Mr. P.R.Barik learned counsel for the appellant. 2. This Second Appeal has been filed against the confirming judgment in a suit filed by the respondents 1, 2 and 3. The suit was filed for evicting the appellant from the disputed shop room, where the appellant was admittedly a tenant. 3. Two questions are raised by Mr. Barik, as substantial questions of law, one being that the notice under Section 106 of the T.P.Act was not a valid notice and the second being that the shop room in question is the joint property of the plaintiffs and the proforma defendants, where the plaintiffs have claimed exclusive title to the said shop room. On the question with regard to the validity of notice under Section 106 of T.P.Act, Mr. Barik submits that as the notice was given under the said Section 106 prior to its amendment in the year 2003, the learned Courts below have acted contrary to law in relying upon the amended provisions of Section 106 of the T.P.Act. Further, since the notice was issued on 19.8.1998 determining the tenancy from end of August, 1998, 15 clear days notice was not issued as contemplated under the un-amended Section 106 of the T.P.Act. However, this position with regard to interpretation of Section 106 of the T.P.Act is no more res integra. 4. In the case of Bhagabandas Agarwalla v. Bhagabandas Kanu and others, AIR 1977 SC 1120 , the Supreme Court, while considering the validity of the notice under Section 106 of the T.P.Act, laid down that the notice to quit must be construed not with a desire to find faults in it which would render it defective, but it must be construed "ut res magis valeat quam pareat". It has been further held that the notice to quit requiring the tenant to vacate the premises "within the month of October, 1962 otherwise he would be treated as trespasser from 1st November, 1962" made the intention of the authors of the notice clear that they were terminating the tenancy only with effect from the end of the month of October, 1962 and not with effect from any earlier point of time during the currency of that month. The tenancy was, therefore, sought to be determined by end of October, 1962 and not earlier and the notice to quit expired with the end of the month of tenancy as required by Section 106. In the circumstances of the said case, the Supreme Court held that the notice was a valid one which effectively determined the tenancy of the tenants with effect from the mid-night of 31st October, 1962. 5. In the instant case also, the fact finding Courts taking into consideration the validity of the notice under Section 106 of T.P.Act though have applied the amended provisions of Section 106 of T.P.Act, but have concluded that the notice was valid. I also find that the said notice terminated the tenancy from the end of August, where the tenancy was from month to month. Thus, the said question raised by the learned counsel for the appellant cannot be construed to be a substantial question of law. 6. The second question raised by the appellant is that the suit was not maintainable by the plaintiffs, when the Courts have found that the plaintiffs did not have exclusive right over the suit shop room. As a matter of fact, the learned Courts below have found that the property is joint property of the plaintiffs and the proforma defendants and there was no prior partition, but the case of the plaintiffs is that they were receiving the rent from the defendants has not been negatived. The plaintiffs being the co-sharers of the suit property, they were competent to maintain the suit even though they claimed exclusive title. Further, the plaintiffs being the joint landlords, the appellant-defendant being admittedly a tenant, is estopped from challenging the title of the landlords. 7. I, therefore, find that there is no substantial question of law involved in this Second Appeal to be determined and the same is accordingly dismissed. The interim order passed earlier with regard to stay of further proceedings in Execution Case No. 23 of 2005 pending before the learned Civil Judge (Senior Division), Baripada stands vacated. Urgent certified copy of this order be granted as per rules. Appeal dismissed.