ORISSA HIGH COURT: CUTTACK. R.S.A. No. 218 OF 2002 From a judgment and decree dated 16.9.2002 and 24.9.2002 respectively passed by Shri P.K. Panigrahi, learned Ad hoc Additional District Judge, Cuttack passed in Title Appeal No. 84 of 1999 reversing the judgment and decree dated 13.8.1999 and 31.8.1999 respectively passed by Shri M.D. Pradhan, learned Civil Judge ( Junior Division), Cuttack in Title Suit No. 69 of 1997. ----------- Harekrushna Sahoo …… Appellant -Versus- Brahmananda Sahoo (dead), after him, his L.Rs Sumitra Sahoo and six others. …… Respondents For appellant : M/s. B.H.Mohanty, R.K.Nayak, B.Das, J.K.Bastia, D.P.Mohanty and S.Burma. For respondents: M/s. S.C.Samantaray, N.K. Sahoo, U.N. Sahoo and D. Mohanty. ------------------------------------ Date of Judgment: 28 .09.2011 ------------------------------------ PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J. This Second Appeal has been admitted on the following substantial questions of law:- (A) If the learned lower appellate court has correctly understood the provisions of Section 116 of the Transfer of Property Act and the effects of the tenancy by holding over, while coming to a conclusion that the notice under section 106 T.P. Act is a defective one ? (B) If the learned lower appellate court is correct in its appreciation of the provisions of section 106, Transfer of Property Act, while interpreting the words “end of month of tenancy” and coming to a conclusion that the notice under section 106, T.P. Act is a defective one ? (C) If the judgment of the learned lower appellate court lacks probity and good conscience, the same not having referred to the decision cited by the counsel for the present appellant reported in 90 (2000) CLT 384 (Andhra Pradesh Handloom Weavers Cooperative Society Ltd. Hyderabad v. Venkateswar Rao and another) ? 2. The appellant as plaintiff filed T.S. No. 69 of 1997 for ejectment of the defendant – Brahmananda Sahoo (since deceased) . During the pendency of the Second Appeal, the said original respondent – defendant having expired, his legal heirs have been substituted. 3. Though the question raised in this appeal lies within a small compass, but the litigation has a long history for which, it is necessary to refer to the facts of the case in brief which are as follows:- The mother of the present appellant, namely, Kanika Sahoo, who was the sole owner of the disputed shop room, gave the same on rent to the father of the original defendant, late Brahmananda Sahoo in the year 1972 on a monthly rent of Rs. 37/-. It is admitted by the parties that there was a written agreement of tenancy executed between the said late Kanika Sahoo and the father of the original defendant. Late Kanika Sahoo, to evict the father of the original defendant, filed H.R.C. Case No. 19 of 1983 under the Orissa House Rent Control Act which was then in force but ultimately failed in the said proceeding before this Court in O.J.C. No. 172 of 1987. 2 Thereafter, plaintiff filed Title Suit No. 138 of 1992 for eviction of the original defendant which was dismissed as the notice under section 106 of the Transfer of Property Act was found to be defective. The plaintiff alleged that his mother late Kanika Sahoo expired and thereafter he (plaintiff) became the absolute owner of the property by succession. Ultimately, the plaintiff issued a notice under section 106 of the T.P. Act on 14.1.1997 asking the original defendant to vacate the premises by 1.4.1997. As he did not vacate the premises, the plaintiff filed the present suit, being T.S. No. 69 of 1997. The suit was decreed by the learned trial court, against which, the original defendant preferred Title Appeal No. 84 of 1999 and the learned Ad hoc Addl. District Judge, FTC No. I, Cuttack by his judgment dated 16.9.2002 allowed the said appeal by setting aside the judgment and decree passed by the learned trial court and dismissing the suit of the plaintiff – appellant. The present Second Appeal has been preferred against the said judgment of the learned first appellate court. 4. The learned appellate court considered the sole question with regard to validity of the notice under section 106 of the T.P. Act and referring to the said section, by taking “29.9.1972” to be the date of commencement of the tenancy came to the conclusion that the appellant was asked to vacate on the expiry of the month of March, 1997 when another month of tenancy had already begun, as the month of tenancy actually expires by 28th. He, therefore, 3 concluded that, to that extent the notice in question becomes invalid in law. For the above conclusion, he relied upon the decisions in the cases of Calcutta Landing and Shipping Co. Ltd. v. Victor Oil Company Ltd., AIR 1944 Calcutta 84 and Bimalendu Bhusan Das v. Firm Mitra and Ghosh, AIR 1973 Calcutta 515. 5. The agreement alleged to have been executed on 29.9.1972 was admittedly an agreement executed between the deceased mother of the appellant Kanika Sahoo and the deceased father of the original defendant, i.e., late Bhagaban Sahoo. After the death of the parties to the said agreement, the original defendant admittedly continued as a tenant under the plaintiff and the rent was enhanced to Rs. 70/- per month. There were no subsequent agreements of tenancy executed between the parties. The tenancy, therefore, could not have been held to have commenced from 29.9.1972 under the agreement executed between the predecessors of the parties, which agreement lost its force after the death of the parties thereto. Accepting this position, it would be clear that the tenancy of the original defendant over the disputed shop room assumes the character of a “tenancy at will”. The learned lower appellate court, therefore, was incorrect in accepting the commencement of tenancy as 29.9.1972 which is the alleged date of execution of the agreement between the predecessors of the parties, for computing the period under the notice issued under section 106 of the T.P. Act by the plaintiff to the original defendant. Even otherwise, 4 by Act 3 of 2003, section 106 of the T.P. Act has undergone exhaustive amendment . The amended section 106 of the T.P. Act reads as follows:- “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 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; 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 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)”. 6. In Act 3 of 2003 which is the amending Act, it has been provided under the heading “Transitory provision” that the provisions of section 106 of the Principal Act as amended by section 2 of the Amending Act to (a) all notices in pursuance of which any suit or proceeding is pending at the commencement of the said Amending Act, and (b) all notices which have been issued before commencement of the Amending Act, but where no suit or proceeding has been filed before such amendment. When the Amending Act came into 5 operation, the matter was pending before the first appellate court. It is a settled position of law that an appeal is a continuation of the suit. Therefore, the above transitory provision in the Amending Act (Act 3 of 2003) applies to the notice issued by the plaintiff under section 106 of the T.P. Act. 7. In view of such amendment, the ratio of the decisions relied upon by the learned lower appellate court clearly had no application to the facts of the case. This Court, therefore, finds that the learned lower appellate court was not correct in holding that the notice issued by the plaintiff under section 106 of the T. P. Act to the original defendant was defective and, therefore, the learned lower appellate court has acted contrary to law in setting aside the judgment and decree of the learned trial court and dismissing the suit. 8. For the reasons indicated above, the judgment and decree passed by the learned lower appellate court in T.A. No. 89 of 1999 is set aside and the judgment and the decree passed by the learned trial court in T.S. No. 69 of 1997 is restored. 9. The Second Appeal is accordingly allowed, but in the circumstances without costs. …………………… M.M. Das, J. Orissa High Court,Cuttack September 28th ,2011/Biswal. 6 7