IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE SECOND DAY OF AUGUST TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR APPEAL SUIT No.2809 of 2001 BETWEEN Khaja Abdul Qadeer and another. …APPELLANTS AND Mohammed Allauddin (died) per LR’s. …RESPONDENTS Counsel for the Appellants: Mr. MOHD. ILYAS Counsel for the Respondents: Mr. M. RAJAMALLA REDDY The Court made the following: - JUDGMENT: This is an appeal by the plaintiffs against the dismissal of their suit O.S.No.3 of 1999 for eviction of the respondents together with decree for arrears of rent and future mesne profits. The said suit was resisted by the respondents and the Court below dismissed the same under the impugned judgment dated 31.08.2001. 2. For the sake of convenience, the appellants are referred to as plaintiffs and the respondents are referred to as defendants, as they are arrayed in the suit. 3. The facts, in brief, are as follows: (a) The plaintiffs are the admitted owners of the suit schedule property, which bears Municipal No.3-4-59/1 at Sajidpura Street, Karimnagar Road, Siddipet Town, Medak District. The said property was leased out to the defendants under oral lease dated 25.01.1992. According to the plaintiffs, it was leased for the purpose of godown for the business of the defendants in Steel and Iron Depot. According to the plaintiffs the rent agreed to was Rs.3,000/- per month exclusive of electricity charges and there was also an agreement for enhancement of rent after every three years by 50% over and above the existing rent. The said quantum of rent is disputed by the defendants and according to them, the rent was only Rs.1,400/- per month and in view of subsequent events, the defendants allege that there was an agreement of sale in favour of the defendants for about 53 sq. yards of tenanted premises, the monthly rent thereby got reduced to half. The aforesaid case of the defendants is, however, disputed by the plaintiffs. (b) The plaintiffs allege that the defendants have been irregular in payment of rent and the last rent paid by them was up to 24.01.1999 and thereafter, there have been arrears of rent as well as electricity charges. The plaintiffs, therefore, gave notice Ex.A1 dated 26.06.1995 terminating the tenancy and demanding arrears of rent from the defendants. The said notice was replied to by the defendants under Ex.A19 dated 06.07.1995 disputing the quantum of rent and the arrears and claimed adjustment on the ground that the defendants had supplied construction material. Thereafter, there was further exchange of notices when the plaintiffs issued second legal notice Ex.A2 dated 09.11.1998, which was replied to by the defendants under Ex.A3 dated 04.12.1998, this was followed by a third notice Ex.A4 on behalf of the plaintiffs dated 02.01.1999 again there was a reply by the defendants under Ex.B16 dated 22.01.1999. In all the notices on behalf of the plaintiffs, the allegations made, as above, regarding non-payment of first initial rent at Rs.3,000/- per month and subsequent enhanced rent at the end of every three years was made and after giving adjustment to the amounts paid by the defendants, the balance was demanded. The defendants in their reply notices disputed the rate of rent, as claimed by the plaintiffs and it was further claimed that the defendants supplied construction material for which the plaintiffs have to pay or adjust the same. It was also claimed by the defendants in the reply notices that there was agreement of sale dated 29.11.1992 relating to 53 sq. yards belonging to the plaintiffs, which was not part of the tenanted premises and advance was paid by the defendants under the said agreement. The defendants also asserted another agreement of sale dated 30.11.1992 for another 53 sq. yards, which is part of the tenanted premises and it was claimed that in spite of defendants being ready to pay the balance consideration amount, the plaintiffs have avoided to execute the sale deed. The defendants also claimed that in view of the said agreements, the rent, which was Rs.1,400/- per month, got reduced to half at Rs.700/- per month. The last of the notices dated 02.01.1999 terminating the lease is followed by the present suit for possession. The defendants filed the written statement in conformity with their stand in the reply notices, as referred to above. (c) The trial Court framed the issues as follows: 1. Whether the plan filed by the plaintiffs along with the plaint is correct? 2. Whether the plaintiff is entitled for recovery of possession of plaint schedule? 3. Whether the defendants violated lease terms? 4. Whether the plaintiffs are entitled arrears of rent and electricity charges of Rs.71,916/-? 5. Whether the plaintiffs are entitled for damages at the rate of Rs.10,000/-? 6. Whether the defendants entitled exemplary costs? 7. To what relief? (d) The first plaintiff examined himself as P.W.1 and P.Ws.2 and 3 are said to be witnesses to the said transaction of oral lease. The plaintiffs also examined P.Ws.4 and 5, who spoke of prevailing rents in the locality. The plaintiffs also marked Exs.A1 to A24. The first defendant examined himself as D.W.1; D.W.2 is said to be a witness at the time of transaction of oral lease and D.Ws.3 and 4 were also examined, who spoke about agreements of sale between the parties. The defendant marked Exs.B1 to B16. (e) The Court below on consideration of the evidence came to the conclusion that the plaintiffs failed to prove the determination of lease by failing to establish the breach on the part of the defendants and as such, under Section 111(g) of the Transfer of Property Act, 1882 (for short ‘the Act’), the plaintiffs having failed to establish that there was default on the part of the defendants, the same is not proved. The Court below also held that as per evidence of D.Ws.1 and 2 the lease period being for 25 years, the plaintiff having failed to establish that the defendants have violated the terms, the Court below did not consider the quit notice and its effect and decided the first issue against the plaintiffs. The Court below also held that out of the plaint schedule property 53 sq. yards were agreed to be sold to the defendants and that the plaintiffs are not entitled to damages, as claimed. The arrears of rent were also denied to the plaintiffs in view of evidence that the defendants supplied cash as well as material and on the probabilities, the defendants’ case was accepted and the suit was dismissed. 4. In this appeal, learned counsel for the appellants/plaintiffs contends that findings of the Court below are absolutely erroneous and are not based on any evidence. Learned counsel states that the lease being oral, the Court below committed error in thinking that it is a lease for 25 years. Learned counsel has also drawn the attention of the Court to the fact that the agreements of sale pleaded by the defendants are dated 29.11.1992 and 30.11.1992 but the defendants have not taken any steps to enforce the alleged agreements and the claim based on the said agreements is barred by limitation. Learned counsel also has submitted that there is no evidence on the part of the defendants to establish that the rent was Rs.1,400/- per month initially and that the same was reduced to half after the agreements. Learned counsel states that the parties are very closely related, as there is a matrimonial relationship i.e. daughter of one of the plaintiffs is married to son of one of the defendants, on account whereof there were three notices exchanged before ultimately filing the suit. Learned counsel points out from written statement of the defendants where it is stated that the defendants are ready to pay the rents but, admittedly, no rents are paid as is evident from the statement of D.W.1 where he admits that he has not paid rent till this day – ‘I have not paid rent till this day’ – and submits that right from termination of tenancy and during pendency of this litigation no rents whatsoever are paid by the defendants. Learned counsel relies upon Section 106 read with Sections 105 and 107 of the Act to contend that the Court below seriously erred in accepting that the lease was for 25 years without there being a registered document. 5. Learned counsel for the defendants, on the contrary, submits that the three reply notices beginning with Ex.A19 clearly and categorically have asserted the rate of rent, agreements of sale, the admitted supply of construction material by the defendants to the plaintiffs and adjustment of the amounts covered by the said purchase as well as the cash paid by the defendants, would show that there are no arrears of rent whatsoever. He relies upon the said reply notices as well as the written statement and evidence of P.W.1 to contend that the plaintiffs admitted that apart from the suit schedule premises of 550 sq. yards the defendants are in possession of 106 sq. yards, which is covered by agreements of sale and that 53 sq. yards in possession of defendants is not subject matter of the plaint schedule and that the accounts shown by the defendants under their reply notice Ex.A19 is the basis for claim for arrears. He specifically points out the admissions of P.W.1 that 106 sq. yards were sold to the defendants under agreements of sale and submits that under Section 53-A of the Act, the defendants are entitled to protect their possession even if they have not filed any proceedings for specific performance of the said agreements of sale. 6. In support of his contentions, the learned counsel has relied upon the following decisions: a decision of the Madras High Court in CHINNA THEVAR v. GNANAPRAKASI AMMAL [1] to contend that the defence available under Section 53-A of the Act to a tenant is a valid defence to the suit for possession; SHRIMANT SHAMRAO SURVANSHI v. PRALHAD BHAIROBA SURYAVANSHI[2] is relied upon for the proposition that person in possession of the property in part performance of an agreement of sale can defend his possession in a suit for recovery of possession; to the same effect are other decisions of the Supreme Court in SUNKARA VENKATA RAO v. K. VENKATA RAO[3] a n d MAHADEVA v. TANABAI[4]; a decision of this Court in MOGILIPUVVU ANNAPURNAIAH v. MALAMPATI NARASIMHA RAO[5] is relied upon to show that continuation of the tenant after termination of lease is juridical possession by tenant as sufferance; another decision of this Court in PARASA RANGA RAO v. MATHE SANJEEVA RAO[6] is relied upon for the proposition that when the defendants claim to protect their possession under Section 53-A of the T.P. Act and when they are ready and willing to perform their part of the contract, the Court should have directed the defendants to pay the balance amount in stead of evicting them; another decision of the Supreme Court in SMT. CHANDER KALI BAIL v. JAGDISH SINGH TAHAKUR [7] is relied upon to claim that till the decree of eviction is passed, the possession by the tenant is not wrongful. The aforesaid decision, however, arises under Madhya Pradesh Accommodation Control Act, which is not relevant for the present case. 7. In the light of the above, the following points arise for consideration: 1. Whether the plaintiffs are entitled for a decree of eviction on the basis of termination of tenancy under last of the legal notices Ex.A4 dated 02.01.1999? 2. Whether the defendants are entitled to claim benefit under Section 53-A of the Transfer of Property Act, 1882, with respect to agreements of sale, as claimed by them? 3. Whether the plaintiffs are entitled to arrears of rent, as claimed? 4. Whether the plaintiffs are entitled to mesne profits, as claimed? 8. Before considering the aforesaid points, it is useful to extract Sections 105, 106 and 107 of the Act. “105. Lease defined A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. Lessor, lessee, premium and rent defined: The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent. 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.] 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 immoveable property is made by a registered instrument, such instrument or, 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 immoveable 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.” POINT No.1: 9. At the outset, a conjoint reading of the Sections 105, 106 and 107 of the Act would show that a lease of duration of more than one year has to be under a registered document. In the present case, admittedly, the lease is claimed to be an oral one. It is, therefore, well settled that unless there is a registered document, a lease of a duration of more than one year cannot be claimed by the parties, as in the absence of registered document the lease has to be construed as only a month-to-month lease beginning on the first day of the month and ending on the last day of the month. The said monthly lease, undoubtedly, can be terminated by a 15 days notice as provided under Section 106 of the Act. In view of amendment to Section 106 of the Act under Transfer of Property (Amendment) Act, 2002, a notice of 15 days, as contemplated, is required to be very liberally construed and in view of transitory provisions under the aforesaid Amendment Act, the provisions of amended Section 106 of the Act apply to pending suits as well and in view of the said retrospective effect to the Amendment Act, the lease, as in the present case, has to be treated as a monthly lease terminable by 15 days notice. All three notices issued by the plaintiffs viz. Exs.A1, A2 and A4, therefore, satisfy the requirement of Section 106 of the Act and the termination has to be held as valid. It is also not in controversy nor there is any plea of waiver on the part of the defendants and the evidence of D.W.1 shows that they have not paid the rents and as such, the question of waiver of notice also does not arise on the facts of this case. Subject to the decision on point No.2, as hereinafter, the first point has to be answered in favour of the plaintiffs and the suit based on oral lease and its termination under Section 106 of the Act could not have been dismissed by the trial Court in view of settled legal position. POINT No.2: 10. Though very elaborate submissions were made by the learned counsel for the respondents/defendants based on Section 53-A of the Act and relying upon the two agreements of sale for 53 sq. yards dated 29.11.1992 and 30.11.1992 respectively, the defendants are not entitled to any relief with respect thereto for the following principal reasons: 1. Neither of the agreements of sale is produced and marked in the suit; 2. Since the said documents were agreements in writing no oral evidence relating thereto can be allowed or considered by the Court under Sections 91 and 92 of the Evidence Act; 3. For claiming benefit under Section 53-A of the Act, the defendants have to establish that there is a written agreement and that they are in possession of the property in part performance thereof and that the transferee has performed or is willing to perform his part of the contract. The above aspect is clearly covered by one of the decisions cited by the learned counsel for the defendants himself viz. SHRIMANT SHAMRAO SURVANSHI’s case (2 supra) wherein under para 16, the Supreme Court has laid down compliance of conditions for claiming protection under Section 53-A of the Act. For the sake of convenience, para 16 is extracted as hereunder: “16. But there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of the Act. The necessary conditions are: (1) there must be a contract to transfer for consideration of any immovable property; (2) the contract must be in writing, signed by the transferor, or by someone on his behalf; (3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained; (4) the transferee must in part-performance of the contract take possession of the property, or of any part thereof; (5) the transferee must have done some act in furtherance of the contract; and (6) the transferee must have performed or be willing to perform his part of the contract.” As mentioned above, the agreements were not before the trial Court nor they are produced in this appeal. The defendants even otherwise have not laid any evidence of compliance any of the pre-conditions necessary for claiming the said protection. The evidence on record shows that except advance payment on the date of agreements no further payments were made or offered. 4. The said agreements being of November 1992, their enforceability under law has ceased long long back and in the absence of any steps taken by the defendants to enforce the said agreements their defence based on the said agreements could not have been accepted by the trial Court. 5. One of the said agreements alone relates to 53 sq. yards, which is part of the tenanted premises, as is evident from the admitted case of the defendants themselves whereas the suit schedule property is said to comprise of much larger extent of about 550 sq. yards. 11. The decision in CHINNA THEVAR’s case (1 supra) cited by the learned counsel for the defendants is, therefore, not relevant and not applicable on the facts and circumstances of this case. Similarly, the decision of the Supreme Court in SHRIMANT SHAMRAO SURVANSHI’s case (2 supra) is already referred to above and to the same effect are the two decisions of the Supreme Court in SUNKARA VENKATA RAO’s case (3 supra) and MAHADEVA’s case (4 supra). So far as the Division Bench judgment of this Court in MOGILIPUVVU ANNAPURNAIAH’s case (5 supra) is concerned, the proposition therein regarding juridical possession of the tenant after termination of lease is also not in controversy, as only a decree for eviction would terminate the said juridical possession of the tenant. To my mind, therefore, once the tenancy is terminated, the tenant continues in possession as tenant holding-over till he is evicted under a decree for eviction by a competent Court. The decision of this Court in PARASA RANGA RAO’s case (6 supra) is clearly distinguishable on the facts of the case and the present case is not a case where the entire suit schedule property is covered by agreements of sale as pleaded by the defendants. The protection under Section 53-A of the Act is, therefore, clearly not available to the defendants. The said point, therefore, deserves to be answered in favour of the plaintiffs and against the defendants. POINT No.3: 12. The next aspect relating to arrears of rent is concerned, it is the consistent case of the plaintiffs that the rent was agreed to be Rs.3,000/- per month initially subject to enhancement at 50% on the existing rent every three years. While the defendants consistently claim that agreed rent was Rs.1,400/- and that it got reduced to half i.e. Rs.700/- per month after the agreements of sale alleged by them. So far as the plaintiffs’ claim for Rs.3,000/- is concerned, the oral evidence of P.W.1 supported by that of P.Ws.2 and 3, who were present at the time of the said oral transaction of lease, consistently shows that the rent agreed was Rs.3,000/- per month. Though in the cross-examination of P.W.1, the defendants have suggested based on the statement in the reply notices that the rent was actually Rs.1,400/- and later reduced to Rs.700/-, no suggestion was given to either P.W.2 or P.W.3 in that respect. Both the said witnesses stated that the rent was agreed at Rs.3,000/- per month and in the cross-examination of either of the said witnesses no questions are asked with respect to rate of rent. P.W.2 was an aged person of 70 years and he states that he was called by the first plaintiff and the first defendant for the purpose of settling the lease transaction. P.W.2, therefore, appears to be a confidant of both sides and his statement that the rent was Rs.3,000/- per month was not controverted in the cross- examination. Similarly, P.W.3 also confirmed the presence of P.W.1, the first defendant, the second defendant and P.W.2 at the time of the said lease transaction, which relates to about 600 sq. yards on plaintiffs’ site. He specifically speaks of rent agreed to being Rs.3,000/- per month. The cross- examination of this witness also is mainly concentrated upon the agreements of sale and the area covered therein and the previous partition suit between the families arising out of O.S.No.218 of 1984. There was no cross-examination of this witness also on the rate of rent as spoken to by him and nothing is suggested to discredit the evidence of the said witness. 13. Coupled with the aforesaid evidence we have the evidence of D.W.1, who is defendant No.1, whereas D.W.2 is the brother-in-law of the plaintiffs and the defendants are his own brothers. He, however, appears to be a witness to the two agreements of sale, as claimed