RSA No.43 of 1993 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.43 of 1993 Date of Decision: 20.3.2009 Ved Parkash & Ors. ..Appellants Vs. Ram Bilas Gupta & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.H.S.Hooda, Sr.Advocate, with Mr.Amandeep Singh, Advocate, for the appellants. Mr.Sachin Mittal, Advocate, for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) This is a defendants' appeal against the judgment and decree dated 30.11.1992 passed by the learned lower appellate court vide which suit for possession by way of ejectment and recovery of rent of Rs.360/- RSA No.43 of 1993 2 filed by respondent stands decreed. The plaintiffs claimed themselves to be the owners of Ahata consisting of one cemented shed and a chowk situated in Mohalla Gazi Khan Ki Chaupal within the abadi of village Badshahpur as shown in the site plan attached with the plaint. Narain Dass, Kihsori Lal, the other co- owners of the property in question were said to have died whereas, Arjun Dass, plaintiff No.2 is the legal representative of Narain Dass and Ghansham Dass and Bimal Parshad plaintiffs No.3 and 4 are the legal representatives of Lal who claimed ownership on the basis of inheritance. The case set up by the plaintiff-respondents was that the suit property was taken by Tala Ram predecessor- in-interest of the defendants on rent at the rate of Rs.10/-per month vide rent note dated 9.7.1973 from Rambilas, Narain Dass, Lal and Amar Singh for the purpose of his residence. After the death of Tala Ram, the appellant/defendants inherited his tenancy rights in the suit property under the respondent/plaintiffs. The plaintiffs claimed that the defendants have been defaulters in payment of rent for the last about 4 years and have also violated the terms of the tenancy by making unauthorized construction in the shape of tin shed on the suit land without prior permission of the plaintiffs. A notice under section 106 of the Transfer of Property Act (for short the Act) was issued on 28.5.1985 to terminate the tenancy right of the defendants. As the defendants failed to hand over the vacant possession, the plaintiffs filed the suit for possession and recovery of rent. On notice, the defendants appeared and contested the suit. They denied being tenants. It was claimed that the defendant-appellants were RSA No.43 of 1993 3 residing in the property in their own right since the time of their ancestors. The execution of rent note dated 9.7.1973 was denied alleging it to be the outcome of fraud and misrepresentation. The construction was said to have been made as of right. In the alternative, the ownership was claimed by way of adverse possession. On the pleadings of the parties, learned trial court framed the following issues:- 1. Whether relationship of landlord and tenant exist between the parties? OPP. 2. If issue No.1 is above is proved in the affirmative, whether tenancy of the defendants was duly terminated? OPP. 3. Whether plaintiffs are estopped by their act, conduct acquiescence, commission and latches from filing the present suit? OPD. 4. Whether suit is not maintainable in the present form? OPD. 5. Whether suit has not been valued properly for the purpose of court fee and jurisdiction and if so what is the correct valuation? OPD. 6. Whether suit is bad for misjoinder and non- joinder of the parties and cause of action? OPD. 7. Whether defendants have become owner by way of adverse possessions? OPD. 8. Relief. RSA No.43 of 1993 4 Learned trial court decided issue No.1 against the plaintiff- respondents and held that there does not exist any relationship of landlord and tenant. Document Ex.P-2 was discarded on the appreciation of evidence on record. Issue No.2 was also answered against the plaintiff/respondents in view of the finding on Issue No.1 whereas issues No.3, 4 and 5 were taken up together and decided against the defendants being not pressed. Issue No.6 was held to be redundant in view of the fact that necessary parties were impleaded. Issue No.7 was decided in favour of the defendant/appellants and it was held that they had perfected their title by way of adverse possession. In view of the findings referred to above, the suit was dismissed. The plaintiff/respondents preferred an appeal against the judgment and decree passed by the learned trial court. Learned lower appellate court came to the conclusion that it was not necessary for the landlord to prove ownership. Learned lower appellate court also held that in the present case, there was no evidence from either of the parties to prove their ownership over the suit property. However, the point which was taken into consideration was that the appellant-defendants denied the execution of rent notes PW2/1 and Ex.PW4/1 by deceased Tala Ram their predecessor-in-interest. Learned lower appellate court came to the conclusion that the documents Ex.PW2/1 and Ex.PW4/1 were required to be proved by examining the persons who knew the attesting witnesses and identify their signatures, as the attesting RSA No.43 of 1993 5 witnesses had expired. Learned lower appellate court also held that PW Ram Bilas one of the plaintiff/respondents duly proved the due execution of the rent note which was said to have been executed in his presence, he had also deposed that it was scribed by petition writer Ram Kumar after its contents were read over to the executant-Tala Ram. PW-3 Om Parkash also identified the signatures of Sullar Mal Jain who was the attesting witness. His presence at the time of execution stands accepted by the learned lower appellate Court, who identified the signatures of his father on rent note Ex.PW2/1. Similarly, reliance was placed on the statement of PW-5 Narain Dass, in coming to the conclusion that rent note was duly executed by the predecessor-in-interest of the appellants-defendants to reverse the findings of the learned trial court. Learned lower appellate court also upheld the termination of the tenancy by notice of 15 days as envisaged under Section 106 of the Transfer of Property Act. The learned lower appellate court held that notice Ex.PY dated 28.5.1989 was valid and the tenancy of the appellant- defendants stood terminated. The findings of learned trial court on issue Nos. 1 and 7 were ordered to be reversed. Similarly, on issue No.2 it was held that that tenancy was validly terminated. Findings on issue No.6 were affirmed. In view of the reversal of findings of the trial court, the suit filed by the plaintiff/appellants was ordered to be decreed. RSA No.43 of 1993 6 Learned counsel for the appellants submits that this appeal raises the following substantial question of law:- Whether the finding of the learned lower appellate court on issue No.2 is the outcome of misreading of provisions of law and thus perverse? In support of the substantial question of law referred to above, learned senior counsel for the appellants contended that as per the rent note on record, it was stipulated that the tenancy could be terminated by giving 30 days' notice but notice of only 15 days was issued, the tenancy, thus, was not validly terminated, to maintain the suit. The plea of the defendant-appellants was rejected by the learned lower appellate court by invoking the provisions of section 111 of the Transfer of Property Act to hold that the tenancy stood terminated by efflux of time and further that as per law only 15 days' notice was required to be issued for terminating the tenancy. Learned senior counsel for the appellants, however, contends that the findings of the learned lower appellate court in rejecting the challenge to invalidity of notice is perverse on the face of it. In support reliance has been placed on the provisions of section 106 of the Transfer of Property Act which read as under:- “106. Duration of certain leases in absence of written contract or local usage.--In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor RSA No.43 of 1993 7 or lessee, by six months' notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy. Every notice under this section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.” It would be seen that under section 106 of Act the parties can stipulate more time for termination of tenancy than 15 days as stipulated in section 106 of the Act. Notice of 15 days can be issued to terminate the tenancy only when the parties by agreement do not stipulate any period for termination of tenancy. There is force in the contention raised by the learned senior counsel for the appellants. Once the parties by agreement agreed that the tenancy could be terminated by notice of 30 days then the period stipulated under section 106 of the Act could not be taken to be the notice period for termination of tenancy, so as to maintain the suit for possession. This view finds support from the judgment of Hon'ble Supreme Court in the case of Satish Chand Makhan & Ors. Vs. Govardhan Das RSA No.43 of 1993 8 Byas & Ors AIR 1984 SC 143. The finding of learned lower appellate court that the tenancy stood determined by efflux of time can not be sustained as the lease deed was not for any specified period. In case said plea was to be accepted then the document itself could not be read into evidence for want of registration as lease of property for a period of more than 11 months is required to be by registered document. Mr.Sahcin Mittal, learned counsel for the respondent/plaintiffs, however, contends that though the notice of 15 days was issued, however, suit was filed after the expiry of one month i.e. the period stipulated in the lease deed and therefore, no fault can be found with the findings recorded by the learned lower appellate court. In support of this contention learned counsel for the respondents has placed reliance on the judgment of Hon'ble Delhi High Court in the case of HarbhajanSingh Vs. Lt.Col. P.N.Chopra 1977 (1) RCR (Rent) 266, wherein Hon'ble Delhi High Court was pleased to lay down as under:- “27. Section 106 of the Transfer of Property Act cannot apply where a lease is expressed to be determinable by notice but the notice is not of the kind required by this section. The parties may provide for a longer or shorter notice than that required under this section for determination of the lease. In either case, section 106 will go out completely. 28. As I have stated earlier, section 106 is merely a deeming provision and artificial period as to duration of lease and its RSA No.43 of 1993 9 determination. Since the notice given is in accordance with the contract, it is perfectly valid even if it did not end with the end of the month of the tenancy.” However, the reading of the judgment would show that it cannot be used in support the contention raised by the learned counsel for the respondents. In the case of Harbhajan Singh Vs. Lt.Col. P.N.Chopra (supra), the court merely held that the notice given in terms of the contract was a valid notice. In the present case admittedly notice issues was not as per the contract. Learned counsel for the respondents also placed reliance on the judgment of Hon'ble Supreme Court in the case of Jaswant Raj Soni Vs. Prakash Mal 2005 (8) SCC 38, wherein the Hon'ble Supreme Court has been pleased to lay down as under:- “3. In Jaswant Raj Soni's case, in fact, a notice dated 9th October, 1991 was admittedly received by the tenant. The notice terminates the tenancy with effect from 31st October, 1991, and calls upon the tenant to vacate the premises after the said date and also calls upon the tenant to pay double the rent for the period after termination of tenancy till vacation of the premises. This notice shows that though the tenancy was terminated by the end of the month, which did not allow a period of one month, yet the landlord informed the tenant that if he takes time in vacating the premises after the said date he would have to pay double the rent for the extra period. This means that tenant was being allowed to stay beyond 31st RSA No.43 of 1993 10 October, 1991. The eviction petition was, in fact, instituted on 20th February, 1992 which is more than a month after service of notice on the tenant. The requirement of service of notice even if it is to be read in the facts of the present case can only mean that a thirty days advance notice was required to be served on the tenant before he is asked to vacate the premises in his occupation.” This judgment also would have no application as that was a case of tenancy covered under the Rent Act where the provisions of section 106 of the Act are not applicable. Learned counsel for the respondents also placed reliance on the judgment of Hon'ble Supreme Court in the case of M/s Nopany Investments (P) Ltd. Vs. Santokh Singh (HUF) 2008 (1) RCR (Rent) 6 to contend that even under the general law no notice to quit was necessary under section 106 of the Act. Hon'ble Supreme Court in the case of M/s Nopany Investments (P) Ltd. Vs. Santokh Singh (HUF) (supra) has been pleased to lay down as under:- “12. In the present case, after serving a notice under Section 6A read with Section 8 of the Act, the protection of the tenant under the Act automatically ceased to exist as the rent of the tenanted premises exceeded Rs.3500/- and the bar of Section 3 (c) came into play. At the risk of repetition, since, in the present case, the increase of rent by 10% on the rent agreed upon between the appellant and the respondent brought the suit premises out of the purview of the Act in view of Section 3 (c) RSA No.43 of 1993 11 of the Act, it was not necessary to take leave of the rent controller and the suit, as noticed herein above, could be filed by the landlord under the general law. The landlord was only required to serve a notice on the tenant expressing his intention to make such increase. When the eviction petition was pending before the Additional Rent Controller and the order passed by him under Section 15 of the Act directing the appellant to deposit rent at the rate of Rs.3500/- was also subsisting, the notice dated 9th of January, 1992 was sent by the respondent to the appellant intimating him that he wished to increase the rent by 10 per cent. Subsequent to this notice,another notice dated 31st of March, 1992 was sent by the respondent intimating the appellant that by virtue of the notice dated 9th of January, 1992 and in view of Section 6A of the Act, the rent stood enhanced by 10 per cent i.e. from Rs.3500/- to Rs.3850/-. It is an admitted position that the tenancy of the appellant was terminated by a further notice dated 16/17th of July, 1992. Subsequent to this, the eviction petition No.432 of 1984 was withdrawn by the respondent on 20th of August, 1992 and the suit for eviction,out of which the present appeal has arisen, was filled on 6th of February, 1993. That being the factual position, it cannot at all be said that the suit could not be filed without the leave of the Additional Rent Controller when, admittedly, at the time of filing of the said suit, the eviction petition before the Additional Rent Controller had already been withdrawn nor can it be said RSA No.43 of 1993 12 that the notice of increase of rent and termination of tenancy could not be given simultaneously, when, in fact, the notice dated 16/17th of July, 1992 was also a notice to quit and the notice intending increase of rent in terms of Section 6A of the Act was earlier in date than the notice dated 16/17th of July, 1992. In any view of the matter, it is well settled that filing of an eviction suit under the general law itself is a notice to quit on the tenant. Therefore, we have no hesitation to hold that no notice to quit was necessary under section 106 of the Transfer of Property Act in order to enable the respondent to get a decree of eviction against the appellant. This view has also been expressed in the decision of this court in V.Dhanaapal Chettiar Vs. Yesodai Ammal AIR 1979 SC 1745.” It may be noticed that in the case of M/s Nopany Investments (P) Ltd. Vs. Santokh Singh (HUF) (supra) also notice was issued when the proceedings were initiated under a different Act. It was in that situation that the Hon'ble Supreme Court was pleased to hold that there was compliance of section 106 of the Transfer of Property Act. Even otherwise, judgment given on facts can be said to be precedent to construe a provision to negate the intention of Legislature. Section 106 of the Transfer of Property Act is clear that the tenancy can be terminated by issuance of notice of 15 days to terminate monthly tenancy in case there is no contract to the contrary, hence, it is stipulated under section 106 of the Transfer of Property Act that parties can stipulate different period, which would have statutory recognition. RSA No.43 of 1993 13 In this view, in the absence of notice of one month in terms of the rent note, the tenancy never came to an end and without termination of tenancy it was not open to the plaintiff/respondents to seek possession of the property. The substantial question of law raised is, thus, answered in favour of the appellant/defendants, and the finding on issue No.2 of the learned lower appellate court is reversed. Consequently, this appeal is allowed. The judgment and decree passed by the learned lower appellate court is set aside and the suit filed by the plaintiff/respondents is ordered to be dismissed for want of termination of tenancy but with no order as cots. 20.03.2009 (Vinod K.Sharma) rp Judge