RAM AUTAR Vs. SAVITRI DEVI

JUDGEMENT

(1.) THIS is a defendant's appeal and it arises out of a suit brought by the plaintiff-respondent for possession by ejectment of the defendant from eight quarters situated in Aliganj, Ward Hassanganj, boundaries of which were given in para. 1 of the plaint together with Rupees 720.00 as arrears of rent as well as for damages for use and occupation at the rate of Rs. 20.00 per month, on which the plaintiff was prepared to pay additional court-fees. The sum and substance of the plaint was that initially defendant-appellant owned the property in question. He had, however, sold the same to the plaintiff on the basis of a registered sale-deed dated 28th May, 1962. He had, however, taken a Theka of the aforesaid property from the plaintiff on a rent of Rs. 20.00 per mensem and one of the terms of the Theka was that if rent for more than 6 months remained unpaid, the plaintiff would have a right to terminate the Theka and take back possession. The defendant had not paid rent from 23rd April, 1963 and in this way Rs. 1070.00 had remained due to the plaintiff, but she was confining her claim to Rs. 720.00 only so as to bring it within limitation. A notice demanding the arrears of rent as well as terminating the lease was sent to the defendant on 19th August, 1967, but the same was refused on 23rd August, 1967. On these grounds suit for ejectment and arrears of rent as well as damages for use and occupation, as noted above, was filed. The defendant contested the suit alleging that the property was sold subject to a condition of re- purchase and actually it was only a mortgage. The defendant had agreed to pay Rs. 20.00 p. m. as interest of Rs 2000.00 and there was no question of Theka. Receipt of notice was denied. It was also alleged that suit for specific performance was filed by the defendant and as such the present suit was liable to be stayed under Section 10 of the Code of Civil Procedure. The trial court found all the issues in favour of the plaintiff and, therefore, decreed the suit for ejectment as well as for recovery of Rs. 720.00 as arrears of rent together with damages future pendente lite at the rate of Rs. 20.00 per month subject to payment of additional court fees. The defendant went in appeal but remained unsuccessful. He has now come up in second appeal to this Court.

(2.) I have heard this appeal with the assistance of the learned counsel for the appellant. No one has turned up from the side of the respondent in spite of sufficient notice. It was submitted before me by the learned counsel for the appellant that no suit for ejectment lies inasmuch as no lease was granted to the defendant. At best the defendant who was holding the property could be termed as trespasser and, therefore, a suit on the basis of title could have been filed. In the alternative it was alleged that actually it was a licence and not a lease and the licence was irrevocable. The second point was that notice was not proved and in any case it was not a valid notice.

(3.) IN the case before me a perusal of Ext.4 leaves no room for doubt that it was a lease, though termed loosely as a Theka and as such the relationship between the plaintiff and the defendant was that of a landlord and a tenant. Such a tenancy under Section 106 of the Transfer of Property Act could be terminated on one month's notice. The only condition was that there was a contract between the parties inasmuch as in Ext.4 it was mentioned that only when there was a default of 6 months in the payment of rent, it would be open to the lessor to terminate the lease and take back possession. In the case before me the rent in default has been of much more titan six months and, therefore, even though there was a contract to the contrary mentioned in Ext.4 regarding termination of tenancy on the basis of one month's notice, this condition was fulfilled inasmuch there was a default of more than six months in the payment of rent. The point No. 1 has, therefore, no substance.