KRISHNAN SERVAI Vs. ARULMIGHU KALIAMMAN TEMPLEBATLAGUNDU

JUDGEMENT

(1.) The defendant in O. S. No. 38 of 1976 on the file of the district Munsif of Dindigul is the appellant in this second appeal. The respondent herein is the plaintiff in the suit. The plaintiff laid the suit for recovery of possession and for damages from 1-8-1975. There is no dispute that the defendant was a tenant of the suit property. There is no document of lease exhibited in the case. Admittedly, the tenancy was not either for agricultural or for manufacturing purposes. Normally, in such a case, the tenancy will have to be determined by fifteen days' notice expiring with the end of a month of the tenancy. In the instant case, what happened is, the defendant on 10-7-1975, in the account books of the plaintiff, in unequivocal terms, agreed to vacate the suit property by 1-8-1975. He did not adhere to this promise but wanted a further extension of fifteen days' time under Ex. A-2 dated 2-8-1975.. Obviously, this was not acceptable to the plaintiff and the plaintiff issued a notice on 11-8-1975, under the original of Ex. A-3, calling upon the defendant to deliver possession by 178-1975. The main question that arose on the contest by the defendant in the litigation was as to whether there should have been a further termination of tenancy within the meaning of S. 106 of the Transfer of Property Act (IV of 1882) hereinafter referred to as the `Act'. It is true that the first court held that there was no termination of tenancy as contemplated under S. 106 of the Act, and in this view dismissed the suit of the plaintiff for recovery of possession and granted a decree in favour of the plaintiff for a sum of Rs. 1,585 towards arrears of rent till the end of 15-12-1975. The plaintiff appealed and the lower appellate court took the view that Ex A-6 itself would amount to termination of tenancy, hence chose to reverse the judgment and decree of the first court, allowed the appeal and awarded damages at the rate of Rs. 75 per month to the plaintiff from 1-8-1975 with proportionate cost. Hence this second appeal.

(2.) At the time of the admission of this second appeal, the following substantial question of law were mooted out for consideration:-

(3.) Whether the lower appellate court erred in granting the decree for damages for use and occupation from 1-8-1975 when the plaintiff himself admitted that he has permitted the appellant to occupy the building up to 15-8-1975 as per the request of the plaintiff under Ex. A-2."