PHOLL CHAND Vs. JAGDISH PRASAD AND OTHERS

JUDGEMENT

(1.) This is an appeal by the defendant -tenant. A suit was tiled for ejectment, recovery of rent and mesne profits by the landlord on the ground that the appellant had made material alterations in the accommodation and had failed to pay rent inspite of a notice of demand which he had refused to accept. The contention of the landlord has been accepted by both the courts and the suit decreed. Counsel for, the appellant has urged that the notice terminating his tenancy was invalid inasmuch as it sought to terminate the tenancy with effect from the date of notice, and further that there was no service of the notice on the defendant, and in any event the rent had been adjusted by agreement between the landlord and the appellant and as such there was no default. The last two contentions raised by the appellant in effect challenge, findings of fact recorded by the lower appellate court that the notice of demand was tendered to the appellant but that he had refused to accept it and that the agreement of adjustment set up in defence was not proved. These findings have been recorded on an appreciation of the entire oral and documentary evidence and no such infirmity exists in these findings as to warrant interference in a second appeal. Counsel for the appellant has urged that the entire approach of the courts below to the evidence in respect of these matters was erroneous and as such these findings are vitiated. I have not been able to discover any such error in the approach of the courts below as to vitiate these findings. These contentions must, therefore fail.

(2.) Coming now to the first contention of the appellant it will be useful to quote that portion of the notice which, according to the appellant, does not comply with the requirements of S. 106 of the Transfer of Property Act:

(3.) It is contended that inasmuch as the notice sought to terminate the tenancy in present with effect from the date of the notice, the notice was invalid. Reliance has been placed upon a decision of Asthana, J. in the case of Hakim Ziaul Islam v/s. Mohd. Rafi alias Rafi Ahmad ( : 1971 AWR 121). The notice in that case sought to terminate the tenancy with effect from the date of the notice and as a result it was held that that notice is invalid. This is not the case here. All that the notice purports to do is to bring about the termination of the tenancy and make a demand for arrears of rent and requires the tenant to quit within 30 days. The intention in giving the notice was not to terminate the tenancy forthwith but to effect a termination on the expiry of 30 days. A notice in somewhat similar terms has been held by a Division Bench in the case of Ahmad Ali v/s. Mohd. Jamal Uddin ( : 1963 AWR 490) as not effecting termination of a tenancy from the date of the notice, but after the expiry of a period of 30 days. Even if it be assumed that the notice seeks to bring about the termination of the tenancy immediately the notice is valid as it can also be treated as a notice to quit u/S. 111(h) of the Transfer of Property Act which will also effectively determine the tenancy. I am supported in the view that I am taking by the decision of a Division Bench in the case of Ram Chandra v/s. Lala Dulichand ( : AIR 1958 Alld. 729). Counsel for the appellant has, however, urged that this Division Bench case doss not apply to a case where the tenancy has not been validly terminated u/S. 106 of the Transfer of Property Act and for this proposition has relied mainly upon the decision of Asthana, J. in the case of Hakim Ziaul Islam (supra). The Division Bench decision in : AIR 1958 All. 729 (supra) was distinguished by Asthana, J. on the ground that a termination of tenancy had been effected in that case by an earlier notice while, in the case in which he decided there was no termination of tenancy at all and as such the Division Bench case (supra) was not applicable to the facts of the case which were before him. With due respects it seems that Hon. Asthana, J. overlooked a passage on p. 730 of the Division Bench case (supra) where it was clearly stated that the first notice did not terminate the tenancy, and reliance was placed in that case only on the second notice as having terminated the tenancy. Thus the decision in the case of Ram Chandra (supra) could not be distinguished on the ground referred to in the case of : 1971 AWR 121 (supra). In fact on p. 731 of the Division Bench case it was held that even the second notice did not terminate the lease as required by S. 106 of the TP Act but was a notice to quit which brought about a termination of the tenancy u/S. 111(h) of the Transfer of Property Act. The Division Bench case of Ram Chandra (supra) is fully applicable to the facts of the present case. Even if it be held that the notice sought to terminate the tenancy in present and as such did not satisfy the requirements of S. 106 of the Transfer of Property Act, it effectively determined the tenancy as it was a notice to quit. The appeal fails and is dismissed with costs. The decree for ejectment shall, however, not be executed for a period of six months provided that the appellant deposits the entire decretal amount as also arrears of rent due upto the 31st March, 1971, by the 1st of May, 1971 and deposits the mesne profits for the aforesaid period of six months by the 15th May, 1971. In case of default the decree holder shall be entitled to execute the decree forthwith. The stay order is vacated subject to the above.