1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 9/3/2010 C O R A M THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN S.A.(MD)No.183 of 2010 and M.P.No.1 of 2010 P.Chinniasamy Asari ... Appellant/Defendant vs. Arulmigu Hanumar Kovil Thathaneri, Madurai, through its Executive Officer Arulmigu Dhandayuthapanisami Temple, Nethaji Road, Madurai. ... Respondent/ Plaintiff PRAYER: Second Appeal has been filed under Section 100 of the Civil Procedure Code to allow the second appeal and set aside the Judgement and Decree dated 16.4.2009 passed in As.No.13 of 2008 on the file of the First Additional Subordinate Judge, Madurai in confirming the Judgement and Decree dated 30.8.2006 passed in O.S.No.357 of 2003 on the file of the District Munsif, Madurai Taluk. For Appellant ... Mr. C.A.Ganapathi For Respondent .. Mr. S.Manohar Caveator JUDGMENT The appellant is the defendant in the suit in O.S.No.357 of 2003. 2. The respondent filed the suit for ejectment. Admittedly, the suit property belongs to the respondent and according to the case of the appellant, the appellant was put in possession of the property as a tenant and the lease was for a period of two years from 1.4.1991 to 31.3.1993. The rent fixed for the property is Rs.50/- per month. It is the case of the respondent/plaintiff that the tenant/ appellant was not paying rent regularly and therefore notice was issued on 11.8.1997 to the tenant/appellant for terminating the tenancy and the appellant was requested to hand over the vacant possession of the property by 1.9.1997. Even at the time of issuance of notice the tenant was in rental arrears of Rs.2500. The suit was https://hcservices.ecourts.gov.in/hcservices/ 2 filed for eviction and for arrears of rent. The appellant/ tenant disputed that he is in arrears in payment of rent and he is not liable to be vacated as he is paying the rent regularly. 3. The trial Court namely the District Munsif Court, Madurai Taluk on the basis of evidence and pleading held that the notice of termination was valid and the tenant is not in arrears of rent and decreed the suit for eviction. The First Appellate Court also concurred with the findings of the lower Court and held that proper notice to quit was given as per the provisions of Transfer of Property Act and therefore the decree passed by the lower Court is proper. Aggrieved by the same, this Second Appeal is filed by the appellant/ tenant. 4. It is submitted by Mr. C.A.Ganapathi, the learned counsel for the appellant that as per Section 114 of Transfer of Property Act, when the tenant pays or tenders to the lessor the rent in arrear, together with interest thereon he can not be evicted and in this case both the Courts have held that there is no arrears of rent payable by the appellant and therefore the Courts below erred in ordering eviction. In the second appeal he has also framed the substantial question of law as to whether the Courts below was right in rejecting the prayer of the appellant to give him the benefit contemplated in Section 114 of Transfer of Property Act. 5. According to me, Section 114 of the Transfer of Property Act may not be applicable to the facts of the case. As per Section 111 of Transfer of Property Act can be determined in the following circumstances: " 111. Determination of lease:- A lease of immovable 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 dispose 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 become 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; https://hcservices.ecourts.gov.in/hcservices/ 3 (g) by forfeiture; that is to say, (1) in case the lessee breaks an 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 claiming title in himself; (or (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. " 6. Section 114 of Transfer of Property Act will come into operation only when lease is determined by forfeiture as stated therein. In this case, though it is stated that the tenant has committed default of payment of rent, by giving proper notice under Section 106, the tenant was asked to vacate and hand over possession. Further, it is also proved that the lease period has already expired and hence the lease is determined by efflux of time as per Section 111 of Transfer of Property Act. To attract Section 114 of Transfer of Property Act a lease must be subsisting and the tenant must have committed wilful default and in the circumstances if the landlord forfeited the tenancy for non-payment of rent, by tendering the rent, the tenant can requested the landlord to permit him to be in possession. But in this case the lease has already been terminated by efflux of time and tenant is only a tenant holding over and proper notice was also given and therefore Section 114 of Transfer of Property Act cannot be made applicable to the facts of the case. 7. Therefore, the substantial question of law raised by the appellant that he is entitled to the benefits of Section 114 of Transfer of Property Act cannot be applied to the facts of the case. The other substantial questions of law raised by the appellant are not substantial questions of law in the real sense and the only substantial question of law that arises for consideration in this case is whether the tenant is entitled to invoke Section 114 of Transfer of Property Act. I have already stated that Section 114 of Transfer of Property Act cannot be made applicable to the facts of the case as the tenancy has already been terminated and the appellant is only a tenant holding over and proper notice was given. Therefore, Section 114 of Transfer of Property Act cannot be made applicable to the facts of the case. 8. Hence, I do not find any reason to interfere with the Judgement and Decree of the lower Courts and the Second Appeal is dismised. However, the appellant/ tenant is granted three months https://hcservices.ecourts.gov.in/hcservices/ 4 time to vacate and hand over vacant possession of the property to the respondent/ landlord. It is submitted by the learned counsel for the appellant that the appellant has paid more than the amount payable by him towards rent. If the appellant is able to satisfy the respondent that he has paid more than the rent due and payable by him, the respondent shall refund the rent paid any excess by the appellant. With the above direction, the Second Appeal is dismissed. No costs. Consequently, the connected M.P.No.1 of 2010 is also closed. SD/- Assistant Registrar(T&P) /True copy/ Sub Assistant Registrar To 1. The I Additional Subordinate Judge, Madurai. 2.The District Munsif, Madurai Taluk. +1 CC TO MR.S.MANOHAR, ADVOCATE S.R NO. 9185 S.A.(MD)No.183 of 2010 and M.P.No.1 of 2010 09.03.2010 kr PAM 06.05.2010/4C/4P https://hcservices.ecourts.gov.in/hcservices/