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2014 DIGILAW 421 (GAU)

Gopika Ranjan Paul v. Rabindra Kr. Dhar

2014-04-09

A.M.SAPRE

body2014
JUDGMENT Abhay Manohar Sapre, J. 1. This is a second appeal filed by the plaintiff under Section 100 of the Code of Civil Procedure against the judgment and decree dated 17.12.2004 passed by Civil Judge (Sr. Division) Karimganj in Title Appeal No. 59 of 2003 which in turn arise out of judgment/decree dated 9.6.2003 passed by Civil Judge (Jr. Division) No. 1, Karimganj in Title Suit No. 82 of 2002. By impugned judgment/decree, the first appellate court dismissed the appeal filed by the plaintiff and in consequence thereof confirmed the judgment/decree of the trial court which had dismissed the plaintiff's suit and decreed the counter claim filed by the defendant against the plaintiff in relation to suit accommodation which had resulted in passing eviction decree against the plaintiff from the suit accommodation. 2. This second appeal was admitted for final hearing on following two substantial questions of law: 1. Whether the tenancy of the appellant can be determined/terminated without service of notice u/s. 106 of the Transfer of Property Act 2. Whether the lease Ext. 'D' can accepted without expert opinion as per provisions of Section 45 of the Indian Evidence Act and other substantial question of law which should be required for effective decision of the present second appeal at the time of hearing. 3. Facts of the case need mention in brief infra. They lie in a narrow compass. 4. The appellant is the plaintiff whereas the respondent is the defendant. The appellant is the tenant whereas the respondent is the owner/landlord of the suit accommodation. 5. The respondent let out the suit accommodation to the appellant as his tenant. The tenancy was non-residential and the appellant was running his shop in the suit accommodation. According to the respondent, he let out the suit shop to the appellant initially by tenancy agreement dated 3.11.98 on a monthly rent at the rate of Rs. 700 and then executed another tenancy/lease agreement dated 17.7.2000 (Ext. D-1) for a period of one year up to 13.4.2001 on a enhanced monthly rent of Rs. 825. 6. The appellant i.e. tenant however filed a suit out of which this appeal arises against the respondent - landlord for a declaration that he be declared as the monthly tenant of the respondent. He also sought other consequential reliefs against the respondent including some interim reliefs. 7. 825. 6. The appellant i.e. tenant however filed a suit out of which this appeal arises against the respondent - landlord for a declaration that he be declared as the monthly tenant of the respondent. He also sought other consequential reliefs against the respondent including some interim reliefs. 7. The respondent filed his written statement denying the plaintiff's claim and also filed counter claim against the appellant seeking his eviction from the suit accommodation. According to the respondent, the tenancy being for a fixed period as per lease deed Ex-D-1, it came to an end by efflux of time on 13.4.2001 and hence appellant's possession in the suit accommodation became that of the trespasser from that date. It was also averred that respondent by quit notice dated 10.6.2001 called upon the appellant to vacate the suit accommodation because according to respondent, it had become dilapidated and needed extensive repairs. The respondent also claimed damages at the rate of Rs. 100 per day from the appellant for wrongful use of the suit accommodation after the expiry of the lease period. 8. The trial court framed several issues. Parties went to trial and adduced evidence. The Trial Court by judgment/decree dated 9.6.2003 dismissed the plaintiff's suit whereas it decreed the defendant's counter claim and accordingly passed the eviction decree against the appellant in relation to the suit accommodation. It was held that appellant is the monthly tenant of the respondent, that lease being for a fixed period by virtue of lease agreement Ext.-D it expired on the due date - 13.4.2001 specified in the lease deed, that appellant had duly signed Ext.-D that no quit notice was required to be given by the respondent to appellant under Section 106 of the Transfer of property Act before filing suit for eviction because the case in question was governed by the provisions of Section 111(a)of the Act and lastly since the Assam Rent Control Act did not apply to the place where the suit accommodation was situated and further since the tenancy was for a fixed period which expired by efflux of time, the respondent (defendant/landlord) became entitled to claim decree for eviction against the appellant (plaintiff/tenant) in relation to the suit accommodation. With these findings, the trial court passed the decree of eviction against the appellant decreeing respondent's counter claim in relation to suit accommodation. 9. With these findings, the trial court passed the decree of eviction against the appellant decreeing respondent's counter claim in relation to suit accommodation. 9. The appellant felt aggrieved filed first appeal against the said eviction decree. By impugned judgment/decree, the first appellate court dismissed plaintiff's appeal and affirmed the judgment/decree of the trial court. Al the findings recorded by the trial court were confirmed. It is against this judgment/decree of the appellate court; the plaintiff/tenant felt aggrieved and filed the second appeal. 10. Having heard the learned counsel for the parties and on perusal of the record of the case, I find no merit in this appeal. 11. In my considered view, both the courts below were justified in dismissing plaintiff's suit and were justified in decreeing counter claim of the defendant against the appellant by passing a decree for appellant's eviction from the suit accommodation. 12. Coming first to the question No. 1, in my considered view, this question has to be answered against the appellant. It was for the reason that it remains no longer res integra and stand decided by several decisions of the Supreme Court reported in (1981) 2 SCC 199 (Smt. Shanti Devi v. Amal Kumar Banerjee), AIR (36) 1949 Federal Court 124 (Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirijibhoy Warden & Anr.) and (1997) 11 SCC 358 (M. Vijayalaxmi v. G. Goverdhan Reddy). 13. In Smt. Shanti Devi (supra), the question arose before the Supreme Court as to whether notice under Section 106 of the Act is necessary where tenancy is governed by Section 111(a) of the Act. Their lordship held that notice was not necessary, if the tenancy was governed by Section 111(a)ibid. 14. Learned Judge A.P. Sen, J. speaking for the bench in a case reported in Smt. Shanti Devi (supra) held as under:-- 4. The courts below have apparently been misled by the averments in para 3 of the plaint that because the defendant could not fulfil the condition regarding obtaining of a licence, the grant made by the indenture of lease did not and could not take effect, as also that in para 7 that the tenancy of lease was from month to month. The parties could not by their pleadings alter the intrinsic character of the lease or bring about a change of the rights and obligations flowing therefrom. The parties could not by their pleadings alter the intrinsic character of the lease or bring about a change of the rights and obligations flowing therefrom. The lease was a lease for a definite term and, therefore, expired by efflux of time by reason of Section 111(a) of the Transfer of Property Act. That being so, the service of a notice under Section106 of the Transfer of Property Act was not necessary. 5. Undoubtedly, Section 111(a) of the Transfer of Property Act, which deals with determination of a lease by efflux of time, has to be read with Section116 of the Act. But in the present case there is no allegation by the defendant that he was a tenant holding over within the meaning of Section116 of the Act. Now, in order that a lease should be deemed to have been continued in favour of the defendant it was necessary to show that he remained in possession of the premises demised after the determination of the lease granted to him and the plaintiff had expressly or by necessary implication assented to his continued possession. There being no such plea of holding over, the matter falls to be governed by Section 111(a) of the Transfer of Property Act. If the period of lease had expired on January 10, 1970, the relationship of landlord and tenant ceased and the defendant became a trespasser. In the present case, the respondent who was the defendant, in Ground 6 of his memorandum of appeal before the High Court urged that the courts below should have held on the basis of the plaintiff's case read with the lease deed that the lease would expire on January 10, 1970. There was, therefore, no question of service of any notice under Section 106 of the Transfer of Property Act. 15. This view was consistently taken by the Supreme Court in other decisions cited above. 16. Applying the aforesaid principle to the facts of the case, it was not disputed that the second tenancy agreement between the parties (Ext.-D) was for a fixed period which provided that the fresh tenancy created between the parties was monthly and secondly it was for fixed period. It was therefore governed by Section 111(a) ibid. 17. 16. Applying the aforesaid principle to the facts of the case, it was not disputed that the second tenancy agreement between the parties (Ext.-D) was for a fixed period which provided that the fresh tenancy created between the parties was monthly and secondly it was for fixed period. It was therefore governed by Section 111(a) ibid. 17. In the light of clear enunciation of law on this issue, both the courts below therefore rightly came to a conclusion that no quit notice under Section 106 of the Act was required to be served by the respondent (landlord) to the appellant (tenant) before seeking his eviction from the suit accommodation. 18. I entirely agree with the findings of the two courts on this issue which in my opinion is in conformity with the law laid down by the Supreme Court on the aforementioned decisions because as held supra, firstly the lease was for fixed period and secondly it expired by efflux of time. 19. Even otherwise, this question does not assume much significance because, in the case in hand, the respondent had served notice to the appellant on 10.6.2001. In a case of this nature where no notice was required and yet given, the respondent (landlord) ensured compliance of the legal formalities with abundant caution and hence he was entitled to seek appellant's eviction from the suit accommodation on the expiry of the lease agreement. Since it was also an admitted case, that provisions of the Assam Rent Act did not apply to the suit accommodation and hence it was not necessary for the respondent to have made out any ground under Section 5 of the Act for seeking appellant's eviction. 20. In the light of foregoing discussion, the question No. 1 has to be answered against the appellant and is accordingly answered against the appellant and in favour of the respondent. 21. Now coming to the question No. 2, the same also has to be answered against the appellant. It was for the reason that firstly: both the courts below held and indeed rightly that second lease agreement (Ext.-D) was duly signed by the appellant. This finding being pure finding of fact, in my view, was binding on the second appellate court. Secondly: there was enough evidence on record for coming to a conclusion that the lease agreement was signed by the appellant. This finding being pure finding of fact, in my view, was binding on the second appellate court. Secondly: there was enough evidence on record for coming to a conclusion that the lease agreement was signed by the appellant. Thirdly: on appreciation of oral and documentary evidence done by the two courts on this issue does not call for any interference and lastly: if the appellant was so keen in contending that Ext.-D does not contain his signature then burden was on him to prove which he could have done by filing the handwriting expert's report. He however did not choose to do so. In such circumstances, it was not necessary for the court to have called the handwriting expert's report of its own. That apart, when there was evidence on record for coming to a conclusion on the question as to whether Ext.-D contains appellant's signatures or not and the two courts below did come to a conclusion which went against the appellant, the appellant had no right to challenge such finding. It was binding on the second appellate court. 22. In view of foregoing discussion, I am of the considered opinion that in the facts of this case, it was not necessary to seek expert's report on the issue of signature of the appellant on Ext.-D and the courts below were right in coming to their respective conclusion on the basis of evidence adduced by the parties that the Ext.-D did bear the appellant's signature. 23. In the light of foregoing discussion, the question No. 2 is also answered against the appellant and in favour of the respondent. 24. In view of foregoing discussion, I find no merit in the appeal which fails and is accordingly dismissed. All interim orders are accordingly vacated. No cost.