ANANDAVALLI AMMA Vs. AMMUKUTTI AMMA

JUDGEMENT

(1.) This is an appeal by defendants 1 to 3, against a decree for the recovery of possession of a building with arrears of rent. The first contention, that the defendants had not been given sufficient opportunity to adduce their evidence, has not been substantiated, and is overruled.

(2.) The second contention, which was pressed before me, was, that there is no averment in the plaint, that a notice to quit as prescribed by S.106 of the Transfer of Property Act was issued, and therefore the decree for the recovery of possession cannot be sustained. This objection to the suit was not pleaded in the written statement, but was pressed in appeal from the decree before the District Judge and was overruled by him, on the ground, that the defendants having agreed in the course of the execution proceedings to surrender possession of the building after a specified period, and time having been granted to them for the purpose, they are estopped from taking this objection. This reasoning of the learned Judge is unsustainable, because the right of the defendants to appeal against the decree cannot be affected thereby, though they may be precluded from objecting to the delivery of possession in the course of execution.

(3.) The tenancy, though denied by the defendants, was found to be proved by the two courts below, and may be deemed to be a tenancy from month to month. S.106 of the Transfer of Property Act provides, that in the absence of a contract to the contrary, fifteen days' notice to quit is necessary to determine the tenancy. It is indisputable, that in a suit for the eviction of a tenant, the plaintiff has to set up and prove, first, that there is a tenancy, and secondly, that the tenancy had been determined in some manner known to law. In the present case, there is no question that a tenancy was set up and proved by the plaintiff. The determination of the tenancy is conditioned primarily by the terms of the tenancy. In the first paragraph of the plaint, it was alleged, that the contract between the parties was, that in the event of default in the payment of rent for one month, the lessor is entitled to enter possession of the building; in paragraph 2, default in the payment of rent for several months was set up. When demand was made for the payment of arrears, the second defendant also agreed to the original terms of the tenancy, and to be made liable in the event of default. In paragraph 4 of the plaint, it was stated, that the defendants had committed default in the payment of rent from the 1st of December, 1957, and paragraph 5 wound up the allegations, stating, that on account of default in the payment of rent, the plaintiff called upon the defendants to surrender possession, but that they did not comply with the demand. The question is, whether these averments do not amount to a plea, that the tenancy had been determined. The relevant part of S.111 of the Transfer of Property Act reads as follows : "A lease of immovable property determines :