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2015 DIGILAW 712 (HP)

Bansi Lal Thakur v. Ram Saran Thakur

2015-06-18

RAJIV SHARMA

body2015
Rajiv Sharma, J. 1. This regular second appeal is directed against the judgment and decree dated 8.7.2014 rendered by the learned District Judge, Shimla, H.P., in Civil Appeal No. 3-S/13 of 2014. 2. Key facts, necessary for the adjudication of this second appeal are that the respondent-plaintiff (hereinafter referred to as the plaintiff, for the convenience sake) has filed a suit for possession against the appellant defendant(hereinafter referred to as the defendant, for the convenience sake) with the averments that the plaintiff is owner of five storyed buildingknown as Saw Mill Building at village Banuti, Tehsil and Distt. Shimla,H.P., situated over Kh. No. 960/434/638, comprised in Khewat No. 78,Khatauni No. 124, as per jamabandi for the year 2001-02. The defendant approached the plaintiff in the month of March, 2009 for renting out oneshop comprising of two rooms on rent i.e. 4th floor of the building for running medical store known as M/S Rakesh Medicine Centre for a period of one year on a rent of Rs. 20,000/- per annum. An agreement was executed on 23.3.2009. The tenancy of the shop premises commenced from 1.4.2009 till 31.3.2010. Legal notice was served upon the defendant dated 6.3.2012 terminating the tenancy rights qua the tenanted shopasking the defendant to vacate and hand over the possession on or before30.4.2012 and to pay use and occupation charges. 3. The suit was contested by the defendant. According to him, agreement dated 23.3.2009 was extended twice impliedly by plaintiff in favour of the defendant. The plaintiff has accepted the rent w.e.f. 1.4.2010 to 31.3.2011 and thereafter w.e.f. 1.4.2012 to 31.3.2012. The legal notice dated 6.3.2012 was neither delivered nor has ever been received by him. The tenancy was never terminated and has denied that he is liable to pay the use and occupation charges at the rate of Rs. 300/- per day. 4. The plaintiff filed the replication. The issues were framed by the learned trial Court on 30.10.2012. The learned trial Court, decreed the suit on 28.12.2013. The defendant preferred an appeal against the judgment and decree dated 28.12.2013 before the learned District Judge, Shimla, H.P. The learned District Judge, Shimla, dismissed the same on 8.7.2014, hence this regular second appeal. 5. Mr. J.R.Poswal, Advocate, on the basis of the substantial questions of law framed, has vehemently argued that notice Ext. PW-1/B was never served upon the defendant. 5. Mr. J.R.Poswal, Advocate, on the basis of the substantial questions of law framed, has vehemently argued that notice Ext. PW-1/B was never served upon the defendant. No separate findings were given by the Courts below on all the issues. The learned courts below have misread and misconstrued the oral as well as documentary evidence on record. The provisions of Section 106 and 107 of the Transfer of Property Act, have not been correctly appreciated by the learned courts below. On the other hand, Mr. G.D.Verma, learned Sr. Advocate, has supported the judgments and decrees passed by both the Courts below. 6. I have heard the learned Advocates for both the sides and gone through the records of the case carefully. 7. The plaintiff has appeared as PW-1. According to him, he had given one shop comprising of two rooms in the fourth floor of the building on rent at the rate of Rs. 20,000/- per annum to the defendant. The defendant had agreed to vacate the shop by 31.3.2010. The agreement was never renewed. The defendant has paid the use and occupation charges to him upto 31.3.2012. He had given notice dated 6.3.2012 through registered AD Ext. PW-1/B to the defendant vide postal receipt Ext. PW- 1/C. The same was duly received and acknowledged vide Ext. PW-1/D. The shop was not vacated despite the notice. The defendant was liable to pay arrears of rent. He has proved rough plan of the premises vide Ext. PW-1/E. 8. The defendant has appeared as DW-1. He has admitted that he has taken shop on rent from the plaintiff vide agreement Mark X on yearly rent of Rs. 20,000/-. He has made all the payments for the year 2010-11 and 2011-12 through cheque. He has not received any legal notice for the vacation of the shop. He has denied his signatures on acknowledgement Ext. PW-1/D. He has admitted that he runs a shop in the name and style of Rakesh Medical Shop in the disputed premises. 9. The copy of jamabandi is Ext. PW-1/A. According to this jamabandi, the shop is situated on Kh. No. 960/434/638. The suit premises were given on rent to the defendant on 1.4.2009. The plaintiff has served a notice upon the defendant vide Ext. PW-1/B. The postal receipt is Ext. 9. The copy of jamabandi is Ext. PW-1/A. According to this jamabandi, the shop is situated on Kh. No. 960/434/638. The suit premises were given on rent to the defendant on 1.4.2009. The plaintiff has served a notice upon the defendant vide Ext. PW-1/B. The postal receipt is Ext. PW-1/C. The address in the notice was of the store/agency run by the defendant situated at The Mall Road, Shimla. Thus, there is no merit in the contention of Mr. J.R.Poswal, Advocate that the address mentioned in the notice Ext. PW-1/B as well as postal receipt Ext. PW-1/C and acknowledgement Ext. PW-1/D is wrong. The only requirement of the law is that the address mentioned in the notice should be correct so that the addressee could receive the same. Moreover, the presumption under Section 3 (C) of the Postal Act is that if the correct address is mentioned upon the envelope/post card, the addressee has received the same. There is also presumption under the General Clauses Act, 1897. The defendant has admitted that he is running medical store/agency on the Mall Road. Mr. J.R.Poswal, Advocate has vehemently argued that the plaintiff has received the rent after 31.3.2010. The plaintiff has served defendant with notice Ext. PW-1/B on 6.3.2012. The plaintiff has not received any rent after 6.3.2012. 10. Their lordships of the Hon’ble Supreme Court in the case of Shanti Prasad Devi and another vrs. Shankar Mahto and others, reported in AIR 2005 SC 2905 have held that mere acceptance of rent for the subsequent months in which the lessee continued to occupy the leased premises cannot be said to be conduct signifying assent to the continuance of the lessee even after expiry of lease period. Their lordships have held as under: “17. We fully agree with the High Court and the first appellate court below that on expiry of period of lease, mere acceptance of rent for the subsequent months in which the lessee continued to occupy the lease premises cannot be said to be a conduct signifying 'assent' to the continuance of the lessee even after expiry of lease period. To the legal notice seeking renewal of lease, the lessor gave no reply. To the legal notice seeking renewal of lease, the lessor gave no reply. The agreement of renewal contained in clause (7) read with clause (9) required fulfillment of two conditions; first the exercise of option of renewal by the lessee before the expiry of original period of lease and second, fixation of terms and conditions for the renewed period of lease by mutual consent and in absence thereof through the mediation of local Mukhia or Panchas of the village. The aforesaid renewal clauses (7) & (9) in the agreement of lease clearly fell within the expression 'agreement to the contrary' used in Section 116 of the Transfer of Property Act Under the aforesaid clauses option to seek renewal was to be exercised before expiry of the lease and on specified conditions. 18. 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 Panchas. In the instant case, there is a renewal clause in the contract 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) & (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. 22. As the leased premises were in use for running a petrol pump, we grant the appellant a reasonable period of two months from the date of this order to deliver possession of the leased premises after removing her installations and other movables.” 11. 22. As the leased premises were in use for running a petrol pump, we grant the appellant a reasonable period of two months from the date of this order to deliver possession of the leased premises after removing her installations and other movables.” 11. In the instant case, the defendant is continuing in possession after notice Ext. PW-1/B without the consent of the landlord. This possession cannot be termed to be possession of tenant with the consent of the landlord. The learned Courts below have correctly appreciated the provisions of Section 106 and 107 of the Transfer of Property Act. Once the tenancy of the defendant has been terminated, thereafter he has no right to remain in the premises. The issues were inter-linked and thus they have been decided together. The Courts below have correctly appreciated the oral as well as documentary evidence on record. The substantial questions of law are answered accordingly. 12. Consequently, there is no merit in this regular second appeal, the same is dismissed. No costs.