SMT. KOKA DEVI Vs. BUDHI PRAKASH

JUDGEMENT

(1.) This is a plaintiff's appeal against a decree of the learned Additional Civil Judge of Moradabad dismissing her appeal directed against the decree of the learned Munsif of Moradabad dismissing her suit as far as the relief for ejectment of the defendant from the house in dispute was concerned.

(2.) On the arguments raised by the learned counsel for the appellant only one question has to be considered and that is, whether the notice sent by the plaintiff to the defendant terminating the tenancy and asking him to vacate was a valid notice. It is not necessary, therefore, to set out all the facts. A notice dated 1-6-1960 was sent by the plaintiff which was received by the defendant on 7-6-1960. By this notice the plaintiff intimated the defendant that his tenancy stood terminated and he should vacate the premises within a period of one month from the date of the receipt of the notice. The defendant did not vacate the premises within the period specified in the notice, hence the suit. One of the defence pleas raised was that the tenancy being from year to year the notice dated 1-6-1960 did not, in law; terminate the tenancy as for terminating the tenancy in question six month's notice was required. The two courts below gave a concurrent finding that the tenancy in question was from year to year and the notice dated 1-6-1960 was invalid and ineffective.

(3.) The short question in this appeal is whether the notice dated 1-6-1960 was a valid and effective notice. It would be necessary, therefore, to determine whether the tenancy in question was a yearly tenancy. There is no document in writing evidencing the contract of tenancy or its terms. The two courts below have relied upon a decree which was passed in favour of the plaintiff landlord in a suit under Sec. 5 sub-Sec. 4 of the U.P. Rent Control and. Eviction Act. This decree shows that the annual rent at Rs. 100.00 was fixed which the landlord could realise at the rate of Rs. 8/4.00 per month. The view taken by the court below is that this decree though by itself did not create the tenancy but it proved that the tenancy between the parties was a yearly tenancy. The learned counsel for the appellant submitted that a tenancy from year to year could in law only be created by a document in writing duly registered and the court below is in error in relying upon the decree in the suit under Sec. 5(4) of the Rent Control and Eviction Act in spelling out a yearly tenancy. I think this submission of the learned counsel has some force. Firstly, the terms of the decree by themselves do not conclusively show that the lease in regard to which the rent was being fixed was a lease from year to year. It provides that the rent would be payable at the rate of Rs. 8/4.00 per month, though in its earlier part it provides for the yearly rate of rent. In the case of Chinti Kaharin Vs. Kripashankar Warrah, AIR 1941 Patna p. 488 it has been observed that a tenancy will be a monthly tenancy though the rent may be mentioned as so much per year. Moreover, the decree by itself cannot be made a foundation for the purpose of finding out the terms and conditions of the tenancy. Sec. 107 of the Transfer of Property Act lays down that a lease of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can only be made by a registered instrument. In the case of Sahu Ananda Sarup Vs. S. Hasan, AIR 1943 Allahabad 279 it has been held that it is not open to a court to infer a lease from the circumstances of the case on some terms other than those which can be inferred from the agreement to the lease because a lease can be created only in the manner set forth in the provisions of the T. P. Act.