1 sa 165.92 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 165 OF 1992 Dasrao S/o Ramrao Bokil, since deceased through his legal heirs. 1-A Arvind S/o Dasrao Bokil, Age : 62 Years, Occu. : Agril., and business, 1-B Murlidhar S/o Dasrao Bokil, Age : 56 Years, Occu. : Legal practitioner and agril., 1-C Uday S/o Dasrao Bokil, Age : 50 Years, Occu. : Business and agril. 1-D Sunil S/o Dasrao Bokil, Age : 48 Years, Occu.: Service and Agril., 1-E Smt. Vijaya W/o Vilasrao Deshpande, Age : 60 Years, Occu. : Pensioner, 1-F Dr. Pramila W/o Suresh Subhedar, Age : 58 Years, Occu. : Medical Practitioner, 2 sa 165.92 1-G Sow. Minakshi W/o Madhavrao Sathe, Age : 54 Years, Occu. : Household, 1-H Sow. Mangala w/o Gautamrao Patil, Age : 52 Years, Occu. : Household, All R/o Vidya Nagar, Signal Camp, Latur, Tq. & Dist. Latur. .. Appellants (Orig. Plaintiffs) VERSUS Ganpat S/o Valhoba Ghisadi, Since deceased through his legal heirs 1-A Radhabai W/o Ganpat Ghisadi, Age : Major, Occu. : Household, 1-B Subhash S/o Ganpat Ghisadi, Age : Major, Occu. : Business, 1-C Suryakant S/o Ganpat Ghisadi, Age : Major, Occu. : Business, Died through his legal heirs 1C1 Sunil S/o Suryakant Ghisade/Salunke, Age : 28 Years, Occu. : Business, 1C2 Ravi S/o Suryakant Ghisade/Salunke, Age : 25 Years, Occu. : Business, 3 sa 165.92 1C3 Vishnu S/o Suryakant Ghisade/Salunke, Age : 23 Years, Occu. : Business, 1C4 Sachin S/o Suryakant Ghisade/Salunke, Age : 22 Years, Occu. : Business, Respondent Nos. 1-C-1 to 1-C-4 all R/o House No. R-9/160/6, Ring Road, Latur. 1-D Ramesh S/o Ganpat Ghisadi, Age : Major, Occu. : Business, 1-E Indu D/o Ganpat Ghisadi, Age : Major, Occu. : Household, 1-F Sindhu D/o Ganpat Ghisadi, Age : Major, Occu. : Household, The Respondent Nos. 1-A, 1-B and 1-D to 1-F all R/o Opposite to Kishorilal Babulal Petrol Pump, Gunj Golai, Latur. .. Respondents (Orig. Defendants) Shri Jayant Chitnis and Shri S. P. Deshmukh, Advocates for Appellants. Shri S. V. Chandole, Advocate for Respondents. CORAM : S. V. GANGAPURWALA, J. DATE : 17TH MARCH, 2011. 4 sa 165.92 JUDGMENT : . The original plaintiff is the present appellant. The plaintiff instituted a suit bearing R.C.S. No. 10/1976 before the Civil Judge Junior Division, Latur for possession of 1/4th vacant plot bearing No. 27/42 at Latur and for recovery of arrears of rent. The plaintiff contended that the defendant had taken a vacant plot on rent at the time of Diwali 1968, on monthly rent of Rs. 17/- for a period of one year i. e. up to Diwali 1969. The said agreement was oral. The defendant even after lapse of one year continued in possession of the said vacant site but was irregular in payment of rent. The plaintiff as such issued notice demanding arrears of rent of Rs. 350/- and terminating his tenancy vide notice dated 10.12.1973. Inspite of service of said notice the defendant did not pay the amount of rent. The plaintiff thereafter again issued notice calling upon the defendant to pay the arrears of rent of Rs. 368/- and again terminated the tenancy. It was further contended that at the time of Diwali 1975 the defendant approached the plaintiff and promised to vacate the suit plot. Relying on his promise the plaintiff has rented the suit plot at Rs. 40/- per month. Thereafter, the plaintiff again issued 5 sa 165.92 a demand notice dated 20th November, 1975 calling upon the defendant to pay arrears of rent of Rs. 568/- and to vacate the premises terminating his tenancy. 02. The defendant vide his written statement admitted the ownership of plaintiff over the suit site. The defendant contended that it was a yearly tenancy. The rent was Rs. 120/- per year. False notices were issued by the plaintiff. The defendant denied that he was in arrears. The defendant also contended that the notice terminating the tenancy is improper and not inconsonance with law and as such, the tenancy is not properly determined. The defendant further contended that the suit plot is not a vacant plot, but godown building is situated on said plot and is a house within the definition of Hyderabad Houses (Rent, Eviction and Lease) Control Act 1954 (hereinafter referred to as the "said Act of 1954" for the sake of brevity). The Trial Court dismissed the suit holding that the defendant is not a defaulter. The lease is a yearly lease and the notice terminating the tenancy is not proper as it does not terminate the tenancy with the end of tenancy month. The Trial Court further observed that none of the parties requested the 6 sa 165.92 Court to frame issue regarding jurisdiction of the Court in respect of relief of possession of the suit premises, vis-a-vis applicability of the provisions of the Said Act of 1954. 03. The plaintiff being aggrieved by the dismissal of his suit preferred regular civil appeal bearing No. 174/1984 to the District Court, Latur. The learned District Judge, Latur dismissed the appeal on the ground that the tenancy in question is yearly tenancy and the defendant is yearly tenant. The notice sent by the plaintiff terminating the tenancy is not legal and proper and that the defendant is not in arrears of rent. The lower Appellate Court, however, held that, "open plot" was leased and not a house. 04. The plaintiff being aggrieved by the dismissal of appeal has filed the present second appeal. The second appeal is admitted by this Court on 03.04.1992 on following substantial questions of law. i) The finding on Issue No. 2 is contrary to the provisions of Section 106 of the Transfer of Property Act. The lower Court committed error in law in holding that the tenancy of the defendant is a yearly 7 sa 165.92 tenancy in as much as the lease is not for agriculture or manufacturing purposes ? ii) The Court below ignored the presumption under section 106 of the Transfer of Property Act that every tenancy other than the one for agriculture or manufacturing purposes, shall be deemed to be monthly tenancy, terminable on 15 days notice expiring with the end of a month of the tenancy ? iii) The lower Court also committed an error of law in interpreting notice of termination dated 20.11.1975, which is at Exhibit 74 ? 05. Shri S. P. Deshmukh, learned counsel for the appellant/plaintiff and Shri S. V. Chandole, learned counsel for the respondent/defendant eruditely canvassed their submissions. 06. Shri S. P. Deshmukh, learned counsel for the appellant during the course of his lucid arguments put forth following propositions : a) The tenancy was a monthly tenancy. The rent was payable monthly. The tenancy was not for a manufacturing or 8 sa 165.92 agricultural purpose, as such the said lease cannot be deemed to be a lease from year to year. b) As per Section 107 of the Transfer of Property Act a lease of immovable property from year to year or for term exceeding a year can be made only by registered instrument, otherwise the said lease would be deemed to be a monthly lease terminable by 15 days notice. For the said purpose the learned counsel relies on the judgment of the Apex Court in case of Samir Mukherjee Vs. Davinder K. Bajaj reported in 2001 AIR (SC) 1696. c) The Court below committed an error in interpreting notice of termination dated 20th November, 1975 (Exhibit 74). The said notice is legal and proper and prescribes determination of tenancy at the end of the month. d) Even otherwise in view of amendment to Sec. 106, only 15 days clear notice is sufficient to determine the tenancy and it need not determine the tenancy with the end of the tenancy month. e) The lower Appellate Court has categorically held that open piece of land was leased. The defendant has not assailed the said 9 sa 165.92 finding and as such, now it is not open for the defendant to contend in the second appeal filed by the plaintiff that the suit plot leased was a house within the definition of the said Act. The defendant/respondent cannot be permitted to canvas such argument. 07. Even if the arguments in respect of nature of the plot is to be considered then still it cannot be held that the house was given on rent. Even in the written statement more particularly in para 8 it was pleaded by the defendant that, "area in occupation of the defendant is a part of the plot on which there is a godown building and thus a ground of the building separately let out." As such, the defendant also contends that the subject matter of tenancy was ground of building separately let out and not the building. Even otherwise as per the defendant, there was a structure of loose foundation and loose tin and he obtained permission and made it habitable. So such a structure where there is no fixed foundation would not come within the meaning of the term house as defined under the said Act. 08. Shri S. V. Chandole, learned counsel for the respondent with all the persuasive skill at his command put forth following propositions. 10 sa 165.92 a) The lease in question was a yearly lease and the tenancy could have been terminated only by six months notice. As the same is not determined by six month notice it cannot be said that the tenancy has been validly determined. The provisions of Sec. 106 of the Transfer of Property Act would apply not only to express lease of uncertain duration, but also to leases implied by law which may be inferred from possession and acceptance of rent. For the said purpose learned counsel for the respondent relies on the judgment of the Apex Court in a case of Ram Kumar Das v Jagdish Chandra Deo, reported in AIR 1952 S.C. 23. b) The twin requirement of a valid notice are that (i) it should be of 15 days in case of monthly tenancy and six months in case of yearly Tenancy and (ii) notice shall expire with end of the month of tenancy. For the said purpose, the learned counsel relies on the judgment of the Apex Court in case of Dharam Pal Vs. Harbans Singh reported in 2006 (9) SCC 216. c) The Courts below have arrived at concurrent finding that the notice determining the lease is not valid. The said finding is as per the factual matrix and the position of law. As such, no 11 sa 165.92 interference is called for. d) The respondent/defendant can agitate the finding given against the respondent by the lower Appellate Court in the second appeal filed by the plaintiff in view of the provisions of Order 42 Rule 1 of the Code of Civil Procedure and for the said purpose the respondent need not to file a cross objection under Order 41 Rule 22 and he can assail the said finding even in the second appeal. The learned counsel relies on the judgment of the learned Single Judge of Kerala High Court in a case of Palasseri Velayudhan Vs. Palasseri Ithayi reported in 1994 AIR (Kerala) page 267. 09. Before adverting to the rival contentions raised by the respective counsel for the appellant and respondent, it would be appropriate to refer to the relevant provisions necessary for determination of present lis. Transfer of Property Act, 1882 1. ..................... 2. .................... [106. Duration of certain leases in absence of written contract or local usage.--(1) In the absence of a contract or local law or usage to the 12 sa 165.92 contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease for year to year, terminable, on the part of either lessor or lessee, by six months' notice; 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. (2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice. (3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. (4) Every notice under sub-section (1) 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 once 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.] Section 106 of the Transfer of Property Act prior to Amendment : 13 sa 165.92 ["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 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."] 107. Leases how made.-- A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. [All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. [Where a lease of immovable property is made by a registered instrument, such instrument or, 14 sa 165.92 where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee:] Provided that the State Government may from time to time, by notification in the official Gazette, direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.] The Code of Civil Procedure. Order XLII Rule 1 :- 1. Procedure.-- The rules of Order XLI shall apply, so far as may be to appeals from appellate decree. Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954. Preamble :- WHEREAS it is expedient to make provision for the better control of the rent of houses and to prevent unreasonable eviction of tenants therefrom and to regulate the leasing of houses in certain areas of the State of Hyderabad. Definition : 1. ........... 15 sa 165.92 2. (a) ................. (b) "House" means any building or hut or part of a building or hut let or to be let separately for residential or non-residential purpose and includes : (i) the garden, grounds, garages, and out- houses, if any, appurtenant to such building or hut or part of such building or hut and or to let or to be let along with such building or hut or part thereof. (ii) any furniture supplied or any fittings affixed by the landlord for use in such building or hut provided but the expression does not include a room in a hotel or boarding house; 10. The fact that the defendant was inducted on the suit property by the plaintiff as a tenant is undisputed. The dispute is about the nature of the tenancy i. e. yearly or monthly tenancy. It is nobodies case that there was written contract between the parties regarding the said lease. The plaintiff and defendant are unanimous in one aspect that the tenancy was oral. Bare perusal of Sec. 106, it is manifest that except lease of a immovable property for agricultural or manufacturing purpose, the lease for any other purpose would be deemed to be monthly lease. As such by deeming fiction unless contract to the contrary is proved the lease for an immovable property for any purpose would be presumed to be monthly lease. Further Sec. 107 of the 16 sa 165.92 Transfer of Property Act mandates that a lease of immovable property from year to year or for any term exceeding a year, or reserving a yearly rent, can be made only by a registered instrument. In view of the clear unambiguous provision contained in Sec. 107 of the Transfer of Property Act a lease not commenced or continued pursuant to registered instrument can never be considered as a lease from year to year or yearly tenancy. The said proposition is no longer res-integra in view of catena of decisions of the Apex Court. The learned counsel for the appellant rightly relied on the judgment of the Apex Court in cae of Samir Mukherjee Vs. Davinder K. Bajaj referred supra. The Courts below have tried to refer to the evidence to conclude that the tenancy was yearly tenancy but have totally lost sight of the provisions of the statute i. e. Section 107 of the Transfer of Property Act which states that creation of a yearly tenancy has to be by registered instrument. In absence of registered instrument of lease it will have to be held that the tenancy in question is a monthly tenancy. 11. The Courts below have held the notices to be invalid on two 17 sa 165.92 grounds. One that the notice determining tenancy should be of six months and as the notice terminating the tenancy in this case is not of six months, the same is invalid. Secondly, the notice dated 20th November, 1975 does not determine the tenancy with the end of tenancy month and it only says, after the statutory period is over, he should vacate the premises as he was terminating the tenancy at the end of the statutory period. The Courts held that the notice was issued on 20.11.1975. The statutory period would be of 15 days from 20.11.1975. It would be around 05th December, 1975 and so the tenancy would not be terminated with the end of tenancy month. The said proposition that the notice should determine the tenancy with the end of tenancy month would no longer hold good in view of the amendment to Section 106 of the Transfer of Property Act by the Transfer of Property (Amendment) Act, 2002 (3 of 2003) which lays down that only 15 days clear notice is required to be given. By virtue of Section 3 of amendment Act 2002, said amendment has been made applicable to pending proceedings. In the light of the said fact, even the said objection cannot be entertained. The reliance placed by Shri Chandole on the judgment of the Apex Court in case of Dharam Pal supra may not be relevant in the present case, as the same does not deal with the amended 18 sa 165.92 provisions of Section 106 of the Transfer of Property Act. In the said judgment the Apex Court held that, even no plea was taken by the defendant in the written statement and same could not be considered. 12. In fact, the substantial questions of law as framed by this Court at the time of admitting the second appeal deserves to be answered accordingly. The lower Court committed an error in holding the tenancy of the defendant as a yearly tenancy even in absence of any registered instrument of lease and that the notice of termination dated 20.11.1975 was not legal and valid. In view of the above conspectus of discussion it shall have to be held that lease is monthly lease and the notice terminating tenancy is legal and valid and as such the suit to the extent of possession has to be decreed. 13. The learned counsel for the respondent had strenuously assailed the finding given by the lower Appellate Court that the property leased was a "open plot" and not a "house". The District Court on appreciation of evidence and the pleadings of the parties had categorically concluded that the property leased was not a house, but an open plot. The said finding is a finding of fact based on evaluation of evidence and may not tantamount to 19 sa 165.92 substantial question of law. 14. Though Order 42 Rule 1 of the Civil Procedure Code lays down that the provisions of Order 41 shall apply so far as may be to the appeal from the appellate decrees. Still the same shall be subject to the restrictions and rigours imposed by Sec. 100 of the Code of Civil Procedure, unless and until the respondent makes out a substantial question of law, the respondent cannot take aid of Order 41 Rule 22 r/w Rule 33 of the C. P. C. The words "so far as may be" appearing in O 42 Rule 1 shall have its own significance. However as much arguments were advanced on interpretation of the term "House" and would deal with the same. 15. The correct approach is to construe the word in that sense which people conversant with the subject matter with which the statute is dealing would attribute to it. To ascertain the meaning of the word "house" one must understand the subject matter with respect to which it is used in order to arrive at the sense in which it is employed in a statute. The intention of legislature assimilates two aspects. In one 20 sa 165.92 aspect it carries the concept of 'meaning' i. e. what the words mean and in another aspect, it conveys the concept of purpose and object or the reason and spirit pervading through the statute. The process of construction therefore, combines both literal and purposive approaches. Each word, phrase or sentence is to be construed in the light of general purpose of the act itself. 16. The definition of "house" as envisaged in Section 2-b of the said Act is in the form "means and includes". When a definition is in the form "means and include", it will be considered as an exhaustive. In other words, the definition will embrace only what is comprised within the ordinary meaning of the "means" part together with what is mentioned in the "includes" part of the definition. 17. Generally the word house is a structure of a permanent character. A structure intended or used for human habitation. 18. The definition of the house as used in the Act is referable to any building or a part of a building or hut to be let separately for residential or non residential purpose. The essence of the definition of the word "house" is that the building should be let for a "residential" or "non residential" purpose, meaning thereby 21 sa 165.92 that it should be let for human habitation. 19. In the Websters New International Dictionary the term "building" is defined as, "That which is built as now generally used as fabric or edifice, framed or constructed, designed to stand more or less permanently and covering a space of land for use as a dwelling, store house,