MUFTI MOHAMMAD ASHFAQ Vs. RASHKEY JAHAN

JUDGEMENT

(1.) THESE are two connected appeals against the judgment of the lower appellate Court which also decided the two appeals pending before it by a common judgment. Suit No. 433 of 1963 was filed by the plaintiff Mufti Mohammad Ashfaq for the ejectment of the defendants after the removal of their Malwa from the land in suit. The plaintiff also claimed mesne profits. His case was that the father of defendants 1 to 4 took the land in suit from the plaintiff's farther on the monthly rent of Rs. 4.00 through a lease deed of 1933. The father of the plaintiff and the father of defendants 1 to 4 subsequently died and hence the defendants Nos. 1 to 4 came to be in possession as tenants on the same terms. It was contended that under the terms of the lease, the tenants were liable to be ejected whenever the plaintiff himself required the land. Therefore, a notice was served on the defendants Nos. 1 to 4 calling upon them to vacate the same as the land was needed by the plaintiff. Despite the said notice, however, the defendants Nos. 1 to 4 failed to vacate, the land. Two sets of written statements were filed one by defendants Nos. 1 to 4 jointly, the other by defendant No. 5 who happened to be the transferee from the defendant No. 1 during the pendency of the suit. The pleas raised in defence are common. It is not necessary to examine all the pleas and the same have not been pressed before me also save one namely, that the lease deed was incorrectly interpreted by the lower appellate Court. The trial Court, on the interpretation of Clause 6 of the said document, held that the plaintiff was entitled to evict the defendants even before the expiry of the period of 99 years mentioned in the preamble of the deed. The lower appellate Court, however, disagreed with the trial Court's interpretation and held that Clause 6 could not curtail the period laid down in the preamble of the document. Sri. Santosh Kumar, learned counsel for the plaintiff-appellant, has contended before me that the trial Court's interpretation is the correct one. It may be mentioned that after the suit was decreed by the trial Court against all the defendants, two appeals were filed in the lower appellate Court, one by the first set of defendants and another by the transferee defendant No. 5. As stated above, both the appeals were disposed of by one common judgment by the lower appellate Court as the point in issue was common. In both the appeals, the point was about the interpretation of Clause 6 read with the preamble of the lease deed. The two appeals filed by the plaintiff in this Court have arisen from the two separate appeals filed before the lower appellate Court but as there, the point in controversy here also is only one, namely what is the correct interpretation of Clause 6 read conjointly with the preamble of the lease deed dated 8th March, 1933. In the preamble it is laid down that the lease was taken for a period of 99 years for the purpose of erecting a house. In Clause 6, it is laid down that if the land was at any time needed by the lessor, then the lessee would vacate the same and would either sell the Malwa or would remove the same. The lower appellate Court has placed reliance on Sahabzada Mohd. Kamgarh Shah v. Jagdish Chandra Deo Dhaval Deo (AIR 1960 SC 953) where it is laid down as under:-

(2.) IN my view, the lower appellate Court did not properly interpret the document. The ratio of the Supreme Court case does not apply because here there do not seem to be any contradictory provisions. It cannot be said that we have a situation where the two clauses cannot co-exist inasmuch as there is some textual inconsistency between the two. The Supreme Court ratio will be applicable only when that kind of situation prevails. Very often despite the fixed term of the lease, provision is made for an earlier determination of the same on certain grounds specified in the document itself. Even in the document at hand, there is a clear provision in Clause 4 where it is laid down that in case of default in payment of rent, it will be possible for the lessor to determine the lease earlier than the period of 99 years set out in the preamble of the document. In Clause 6 it is laid down that the lessor, if he seeks to get a vacant possession of the land, then he can get the same and the lessee will have the right to sell the Malwa or to remake the same. In my opinion, the fixed period mentioned in the preamble had to be read subject to the condition laid down in Clause 6. Learned counsel has also placed reliance on Section 110 of the Transfer of Property Act in the third paragraph whereof is laid down as under :-

(3.) IT is true that the lease was granted for the purpose of setting up permanent structure and that is a valid consideration in interpreting the question of the period of the lease and its determination by the parties to the document. However, despite this fact, if there is an express covenant which clearly entitles the lessor to determine the lease expressly laying down that it can be done at any time, I do not think that the effect of such an express covenant can be nullified by a consideration of the fact that the lease was obtained for the purpose of setting up permanent structure. Moreover, it has also to be emphasised that the term of the lease is not mentioned in the operative part of the document where the terms and covenants of the document are set out. It is mentioned only in the preamble of the document and I do not think that the recitals in a preamble can be allowed to control the express terms and covenants laid down in the operative part of the document. Under these considerations, I am of the opinion that the trial Court's interpretation of the document is to be preferred to the interpretation placed by the lower appellate Court.