SATISH CHAND MAKHAN Vs. GOVARDHAN DAS

JUDGEMENT

(1.) This appeal by special leave is directed against a judgment of the Andhra Pradesh High Court dated July 5, 1983 upholding the judgment and decree of the Civil Judge, City Civil Court, Hyderabad dated Dec. 31, 1982 and those of the Third Assistant Judge, City Civil Court, Hyderabad dated March 5, 1982 and decreeing the plaintiffs' suit for possession of open land described in the plaint schedule and more mesne profits thereof.

(2.) Put very shortly, the essential facts are these. By a registered indenture of lease dated Jan. 8, 1965 Exh. A-3, the father of the plaintiffs damaged a piece of open land admeasuring 84 ft. X 22 ft. situate at Basheerbagh, Hyderabad, more fully described in the plan annexed to the lease deed, to the defendant No. 1 for a period of five years. The rent stipulated in the lease deed was Rs. 311/- per month. Acting upon the grant, the defendant No. 1 put up a superstucture worth more than rupees one lakh and carrried on the business of running a hotel from the demised premises. After the expiry of the period of five years, the parties entered into an agreement to renew the monthly lease for a further period of nine years w. e. f. June 1, 1971, the terms whereof were reduced to writing in the form of the draft lease agreement Exh. B-2, which remained to be registered as required under Section 17 (1) (d) of the Registration Act, 1908. Clause 9 of the agreement provided that the defendant No. 1 shall restore possession of the demised premises to the plaintiffs'. father after removing all the super-structure built upon the land. It further stipulated that on his failure to complying with the said condition, the plaintiffs' father would be entitled to recover possession of the aforesaid plot, of land together with mesne profits @ Rs. 700/- per month. The plaintiffs served a notice dated Feb. 1, 1976 upon the defendants determining the tenancy on the ground of forfeiture under Section 111 (g) of the Act complaining of breach of the terms of the lease. On March 27, 1976 the plaintiffs brought the suit for ejectment and mesne, profits. The defendants contested the claim of the plaintiffs and pleaded inter alia that they were tenants holding over as tenants from month to month under Section 116 of the Transfer, of Property Act and since there had been no determination of the lease by service of a notice under Section 106 of the Act, the suit as framed was not maintainable. They further pleaded that the unregistered draft lease agreement Exh. B-2 was inadmissible for want of registration under Section 49 of the Registration Act and that in any event the period of the lease as stipulated for between the parties was for a further period of nine years w. e. f. June 1, 1971 with an option for further extension of the same by three years and therefore they were entitled to continue in possession of the demised premises.

(3.) Upon these facts, the High Court as well as the Courts below following the decision of this Court in Pasupuleti Venkateswarlu v. Motor and General Traders, (1975) 3 SCR 958 and that of the Andhra Pradesh High Court in Syed Jeleel Zane v. P. Venkata Murlidhar, AIR 1981 Andh Pra 328 held that the plaintiffs were entitled to the reliefs claimed for upon the basis of the plea taken by the defendants in their written statement that there was a renewal of the initial lease for five years by a further term of nine years on the altered circumstances i. e. upon the expiry of the said period of nine years on May 31, 1980. They hold that it was incumbent on the Court under VII, R. 7 of the Civil P. C., 1908 to take notice of the altered circumstances since the institution of the suit and mould the relief accordingly in order to shorten the litigation and to do complete justice between the parties. Upon this basis, they held that the lease was determined by efflux of time under Section III (a) of the Transfer of Property Act, 1882 and no notice was required under Section 106 of the Act for determination of the lease.