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2016 DIGILAW 3605 (ALL)

Hamid Ali Khan v. Krishna Kumar Maheshwari

2016-10-27

VINOD KUMAR MISRA

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JUDGMENT Vinod Kumar Misra, J. -- This second appeal has been filed by the appellants, Hamid Ali Khan and Jahid Ali Khan against Kumar Maheswari, respondent assailing the judgment and decree dated 30.8.2014 passed by Additional District Judge, Court No. 5, Bulandshahar in Civil Appeal No. 117 of 2013 arising out of judgment and decree dated 26.7.2013 passed by Additional Civil Judge (Senior Division), Court No. 1, Bulandshahar in Original Suit No. 230 of 2008. 2. On 15.3.2016 this appeal had been admitted by this Court on following substantial question of law: (1) Whether the learned appellate court had committed error in giving direction to parties to negotiate the terms of another lease deed when there has been specific finding that lessor was not willing to extend the lease. If so, its effect? (2) Whether the respondent/defendant was liable to be evicted from disputed property after expiry of terms of lease deed in question on the basis of which he was continuing in possession? If so, its effect? 3. I have heard learned counsel for the appellant and respondent. I have also perused the impugned judgment of the learned first appellate court as well as of the learned trial court and also perused the original record of this case. 4. Substantial question of law No. 1 is : Whether the learned appellate court had committed error in giving direction to parties to negotiate the terms of another lease deed when there has been specific finding that lessor was not willing to extend the lease. If so, its effect? With regard to this question from the perusal of the record it is crystal clear that it is an admitted position that respondents were given the disputed property by the appellant's predecessor on 15.1.1966 for a period of 15 years and registered lease deed was executed on 15.1.1966 between both the parties. There was extension clause in the lease dated 15.1.1966, which is hereunder: "Mazkura vala rakva kirayedar ko 15 saal ke liye lease par diya ja raha hai. 15 saal ke baad yadi kirayadar agar aagay ke liyai bhi lease ki muddat ko badana chahay to agay kai liyai bhi badhaee ja sakti hai bashartai ki hamay kiraydar sai koi shikayat na ho. Badvatay wakt kiraydar sai nai siray se muhayada hoga" 5. The period of lease deed was expired on 14.1.1981 even after respondent remained in possession of disputed property. Badvatay wakt kiraydar sai nai siray se muhayada hoga" 5. The period of lease deed was expired on 14.1.1981 even after respondent remained in possession of disputed property. In the meantime original lessor died and his two sons, Hamid Ali Khan and Jahid Ali Khan executed a lease deed in favour of Krishna Kumar Maheswari on 24.1.1983 whereby the lease of the earlier leased property was extended for a further period of 12 years with effect from January, 1981. In the second lease deed there was also a renewal clause in the following term: "Yeh ki baat khatm honay muddat kiraydari kai agar fareek abbal rajamand hongay to naee kiraydari phir sai shuroo ki ja sakti hai magar wah kiraydari kisee tehreeri dastavaj ki binah par hogi jubani hargij bhi nai hogee" 6. The period of second lease also expired on 31.12.1993. The lessors of the second lease deed further leased out the disputed property to the lessee by third lease deed dated 16.8.1993 and extended lease from January, 1993 to 31.12.2007. In the third lease deed there was also a clause for renewal of lease deed in the following term: "Yeh ki baat khatm honay muddat kiraydari kai agar fareek doyam rajamand hongai to nai kiraydari phir sai shuroo ke ja sakti hai magar wah kiraydari kisee tehreeri dastavej kee vinah par hogee jubani hargij bhi nai hogi" 7. The period of third lease deed expired on 31.12.2007. Further lease deed was not extended and lessor filed Original Suit No.230 of 2008 in the court of Additional Civil Judge (Senior Division), Court No. 1, Bulandshahar against the lessee with the averments that the lessee had not paid rent since 1.5.2005 and had not vacated the disputed property while the lease deed expired on 31.12.2007 and notice had already been served on 12.12.2007. Defendant contested the suit and filed written statement and learned trial court vide judgment dated 26.7.2013 decreed the suit for possession and arrears of rent. 8. Defendant assailed the judgment of the learned trial court by preferring a civil appeal no. Defendant contested the suit and filed written statement and learned trial court vide judgment dated 26.7.2013 decreed the suit for possession and arrears of rent. 8. Defendant assailed the judgment of the learned trial court by preferring a civil appeal no. 117 of 2013 and learned first appellate court vide judgment dated 30.8.2014 partly allowed the appeal and set aside the judgment of the learned trial court, so far as decree of eviction of defendant was concerned, the court modified the decree in the fashion that the plaintiffs shall be entitled to take back the possession of the disputed property immediately after 31.12.2022 and the defendant is directed to vacate the suit property immediately after 31/12/2022, in the meantime the parties shall negotiate terms of the fourth and final lease deed more particularly rate of rent and the defendant shall continue to pay provisional lease rent at the rate of Rs. 5000/- per month from 01/01/2008. If the parties do not agree to the terms and conditions of the fourth lease deed, they can take recourse of court to settle the terms and conditions of the same. The decree for arrears of rent passed by learned trial court is hereby upheld. In the facts and circumstances of the case, the parties shall bear their coasts throughout. 9. Learned first appellate court on the basis of renewal clause in the lease deed gave finding that plaintiff, landlord was not entitled to terminate the tenancy of the defendant during the subsistence of the lease period and without negotiating the terms and conditions with the defendant for further renewal eviction could not be ordered. Learned first appellate court found that extension clause as mentioned in the earlier first lease dated 15.1966 shall remain in force in the third lease and landlord unilaterally cannot terminate the lease without negotiation with tenant. Learned first appellate court also quoted the judgment passed in Sudhir Kumar Vs. Baldev Krishna Thapar: 1970 (2) SCJ . The factual aspects of the cited case were altogether different. In cited case lessee also purchased share in the demise property and there was partition between the parties. Hon'ble Apex Court interpreted the compromise decree with earlier lease deed and earlier lease deed clause was read in the clause with compromise decree. 10. Baldev Krishna Thapar: 1970 (2) SCJ . The factual aspects of the cited case were altogether different. In cited case lessee also purchased share in the demise property and there was partition between the parties. Hon'ble Apex Court interpreted the compromise decree with earlier lease deed and earlier lease deed clause was read in the clause with compromise decree. 10. Moreover, terms and conditions of the lease deed discussed in the cited case law were also not similar to the terms and conditions of the lease deed discussed in the present case. First thing that the learned first appellate court extended the extension clause of the lease deed of the year, 1966 in the third lease deed while it was not incorporated in the third lease, which cannot be said legal. Court cannot put any clause in a written document which has been executed by the parties with their free will and deed is a registered one. The language employed in the renewal clause of the third lease deed between the parties is in the following term: "Yeh ki baat khatm honay muddat kiraydari kai agar fareek doyam rajamand hongai to nai kiraydari phir sai shuroo ke ja sakti hai magar wah kiraydari kisee tehreeri dastavej kee vinah par hogee jubani hargij bhi nai hogi" 11. The tenure of the above renewal clause expressly indicates that fresh lease after expiry of the term of the third lease deed would be started if the lessors agree. The first appellate court did not properly interpret this renewal clause and treated this clause conferring an absolute right in the tenant to get the lease deed renewed despite unwillingness of the lessors while it depends upon the intention of the parties whether they want the renewal of the lease deed or not. The language employed in clause 12 of the lease deed specifically mentions that fresh lease deed would be started only if the lessors would agree. So lease would be renewed only if the lessor was willing to renew it and tenant was also ready for taking further lease. 12. The language employed in clause 12 of the lease deed specifically mentions that fresh lease deed would be started only if the lessors would agree. So lease would be renewed only if the lessor was willing to renew it and tenant was also ready for taking further lease. 12. In a situation where lessor was not willing to renew the lease and tenant was willing to get the renewal of the lease deed then the language employed in the renewal clause 12 of the lease deed gives the answer to the problem because language used in the clause gives upper hand to the lessor for renewal of the lease. So, in my opinion in this regard the approach of the trial court was according to law while learned first appellate court mis-interpreted the renewal clause and wrongly gave direction to the parties to negotiate the terms of another lease deed when lessor was not willing to do so. 13. Consequently, learned first appellate court had committed an error in giving direction to the parties to negotiate the terms of another lease when there was specific finding that lessor was not willing to extend the lease and learned first appellate court was not entitled to give such type of direction because he cannot step into shoes of lessor. 14. Consequently, substantial question of law no. 1 is, accordingly, answered in favour of appellants and against the respondent. 15. Substantial question of law (2) is: Whether the respondent/defendant was liable to be evicted from disputed property after expiry of terms of lease deed in question on the basis of which he was continuing in possession? If so, its effect? So far as this substantial question of law is concerned, learned trial court has given the finding that tenancy of the respondent- defendant has come to an end by efflux of time, as the period of lease deed has expired and tenancy of the defendant has been terminated by notice. Therefore, the defendant/ respondent could not remain in possession of the disputed property, as plaintiff/landlord did not renew the lease any further and there is no vested right for the tenant as per clause 12 of the lease deed to get the renewal of lease deed unilaterally without the willingness of the plaintiff/landlord. Therefore, the defendant/ respondent could not remain in possession of the disputed property, as plaintiff/landlord did not renew the lease any further and there is no vested right for the tenant as per clause 12 of the lease deed to get the renewal of lease deed unilaterally without the willingness of the plaintiff/landlord. So in these circumstances the appellate court was not justified in extending the tenancy of the defendant in the disputed property till 31.12.2022. Consequently, the respondent is liable to be evicted from the disputed land as per the finding of the learned trial court . 16. Consequently, substantial question of law no. 2 is, accordingly, answered in favour of appellants and against the respondent. 17. The appeal is, accordingly, allowed and judgment dated 30.8.2014 passed by learned first appellate court is set aside and judgment dated 26.7.2013 of the learned trial court is restored. 18. The record of the court below along with the copy of this order be transmitted to the courts below concerned for compliance.