MOIDEEN HAJI Vs. MOOSA HAJI

JUDGEMENT

(1.) The respondent sued the 8th defendant - appellant and others, for arrears of rent and for eviction, alleging that the first defendant had executed Ext. A 1 marupat dated the 2nd March, 1945, for a term of 10 years on his behalf and on behalf of defendants 2 to 7, that it expired on the 1st March, 1955, and that thereafter defendants 1 to 7 had no more an interest in the leasehold, but that by way of abundant caution he had given them notice to quit on the 13th November, 1955, and impleading the appellant as a person who came into possession after the date of that notice. The appellant came into possession on taking Ext. B 1, a deed of assignment from defendants 1 and 3 to 7 on the 7th May, 1957. It was also the respondents case, that the original lease was of a commercial site and that he was entitled to evict the respondent and others. The suit was resisted by the appellant and others. The two courts have concurrently found, that the original lease was of a commercial site. Though learned counsel for the appellant made an attempt to reopen these findings, I am satisfied, that there is nothing in the case which warrants interference with them.

(2.) Learned counsel then relied on S.106 of Act 1 of 1964 for contending, that the prior lessees having constructed a building on the property for a commercial and industrial purpose before the 18th December, 1957, the appellant cannot be evicted. At the outset, it must be stated, that this is a benefit conferred on the lessee of a holding and not on any other, not even on a tenant under the Act who is not a lessee. The definition of the word tenant in the Act includes several categories of persons. A person who may be deemed to be a tenant under S.7 may be a tenant within the definition, but is not necessarily a lessee. In order that S.106 might apply, a subsisting lease has to be predicated. In the present case, it was averred in the plaint, that the lease expired on the date aforesaid, that there has subsequently been no assent to the continuance in possession of defendants 1 to 7, by the acceptance of rent or otherwise, and that thus their interest had come to an end on the expiry of the term of the lease. It was not averred by the appellant or for that matter by defendants 1 to 7, that there has been acceptance of rent by the respondent subsequently or that he had assented to their continuance in possession in any other manner. By the application of S.116, Transfer of Property Act it has to be held that after the date aforesaid, defendants 1 to 7 were tenants at sufferance, and could pass only such interest, if it can be called an interest, to the appellant.

(3.) But learned counsel contended that the suit as framed is on the lease Ext. A1, and is expressly stated to be for arrears of rent and for eviction, and court fee was paid as for eviction, under S.43(2) of the Madras Court fees and Suits Valuation Act, 1955 (Act XIV of 1955). In the light of the specific averments in the plaint, to which advertence has been made above, and upon which it cannot be doubted, that the lease had come to an end, such loose expressions, as lease and pattam, as may be found in other parts of the plaint or even in the deposition of Pw. 1, are not conclusive. The payment of court fee under S.43(2) for recovery of possession or for ejectment as for a lease, is also not decisive. Had the objection been taken, the defect if any, could have been cured. Moreover, decided cases are not wanting in which a similar provision as to court fee was held to be applicable to recovery of possession, even where the tenant continued to be in possession, after the tenancy had been determined. See Ram Lal Sahu v. Nt Bibi Sahra AIR 1935 Patna 90, Vithaldas v. Gulam Ahmad AIR 1927 Nag. 156 and Gobindakumar Sur v. Mohinimohan Sen ILR 57 Cal. 349. It is not necessary to pronounce upon this, except to state that the payment of court fee is not a test as to intention of the respondent who sued or as to substance of the suit.