BRIJ MOHAN DAS GOYAL Vs. NIDHI BAI

JUDGEMENT

(1.) THIS second appeal arised out of a suit for the defendant's eviction on the ground that the latter's tenancy in the suit accommodation, was determined by the plaintiff -landlord and after such determination the defendants were liable to be evicted from the said accommodation. The plaintiff also claimed arrears of rent and damages for illegal use and occupation etc. The brief facts are these: "The plaintiff claimed to be the Karta of his joint family. House No. 261/262, Sadar Bazar, Allahabad, was claimed to belong to the joint family. The defendants were alleged to be the tenants on a monthly rent of Rs.15/ -. It was alleged that the tenants did not pay the arrears of rent due from them for the period from August, 1961, to September, 1963. After adjustment of two months' rent towards repair, a net sum of Rs.360/ - was thus due from them to the plaintiff as arrears of rent for the said period. By a notice dated 3rd October, 1963, the plaintiff asked the defendants to pay the arrears and the tenancy was also determined. However, the defen dants neither paid the arrears of rent nor did they vacate the suit accommodation in their tenancy. Hence the suit." The defendants contested the suit. Their contention was that the house was originally taken on rent by their brother Nebhan Das from Banwari Lal the father of the plaintiff. Both of them subsequently -died. The defendants continued to reside in the house as tenants there of. On Banwari Lal's death, one Prag Das who happened to be a cousin of the plaintiff, approached the defendants alleging that there had been an agreement in the landlord's family where under different co -sharers were allowed to manage and realise the rent of different houses allotted to the different co -sharers. Prag Das claimed that house no. 261/262 was allotted to him. Hence he was entitled to realise the rent of the same. On this representation, formerly Nebhan Das and thereafter the defendants used to pay the rent to Prag Das and such rent was paid up to September, 1963. The plaintiff never objected to the said payment of rent to Prag Das. The defendants further asserted that there was no joint family of the plaintiff and the plain - tiff was not the Karta of any joint family. There had been disruption and so the different co -owners became co -lessors of the property. Hence the plaintiff could not sue the defendants. The suit was said to be bad for non -joinder of necessary parties. The notice dated 3rd October, 1963, was said to be bad and illegal. The trial court framed the necessary issues and dismissed the suit. The plaintiff went up in appeal to the lower appellate court and the appeal was allowed and the case was remanded to the trial court for framing additional issues relating to the pleas of joint family and parti tion. The trial court thereafter framed the additional issues and after trial again dismissed the suit. The plaintiff again went in appeal to the lower appellate court but the same was dismissed. The plaintiff has now come up in the instant second appeal and in support therefore, I have heard his learned counsel Sri G.N. Kunzru. In opposition, Sri S.J. Hydern, learned counsel for the defendants -respondents, has made his submissions. Learned counsel for the plaintiff -appellant expressed a grievance that the lower appellate court did not give its findings on all the issues involved in the suit. He emphasised that the remand order passed earlier by the lower appellate court had become final and it was not open to the said court in the subsequent appeal to question earlier remand order. In terms of the said order, the trial court had framed additional issues and the lower appellate court could not take exception to the framing of such additional issues in compliance with the earlier remand order. In my opinion, the lower appellate court, despite the use of phraseology suggesting to the contrary, really never questioned the earlier remand order. Its point of view was that in a suit between landlord and tenant, if the existence of the said relationship is not proved, then the suit has to fail -forgetting for the time being that such suits can in certain circumstances be decreed on the basis of title vide Abdul Ghani v. Musammat Babni I.L.R. 25 Alld. 256 (F.B.) and Balmakimd v. Dalu I.L.R. 25 Alld. 498 (F.B.). Both the courts below have concurrently held that the plaintiff's allegation that a joint family was in existence of which he was the Karta was incorrect. The former joint family stood disrupted and as a result of such disruption, the house in question came to be owned by the members of the former joint family as co -owners and as tenants in common. It was, therefore, held that the plaintiff as one of the several co -owners could not sue the defendants for ejectment and for arrears of rent and damages. The trial court and the lower appellate court differed on the consequence of the rent being paid by the defendants to Prag Das. The trial court held that the defendants had paid rent up to September, 1963 to Prag Das and that discharged the tenants; liability up to the said period. It was for the plaintiff and the other landlords to settle their account. The lower appellate court, however, held that the rent should have been paid to the entire body of co -owners and "by paying rent to only one co -sharer, the defendants cannot absolve themselves of the liability." I think that this controversy should not be decided in the instant appeal. A decision on this point should be given only when the entire body of co -owners is before the court. In the instant litigation, all the co -owners owing the property are not before the court and, there fore; this question will be left open. The lower appellate court also held that the notice dated 3rd October, 1963, was a bad one on the ground that "the tenancy in question was with respect to a manufactur ing concern and not for residential purposes and so one month's notice was illegal." It may be mentioned that this point was never canvassed before the trial court and no such point was raised by the defendants in their written statement. In my view, when a defendant does not ques tion the validity of a notice explicitly on the ground that he was entitled to a six months' notice in view of the nature of his tenancy, then it is not open to a court at the appellate stage to allow the said question to be raised. It is true that in the written statement, the notice was alleged to be bad and illegal but no ground for the said contention was set out. In para 18 of the written statement it was simply said that the notice is bad and illegal, in the eye of law and no suit can be filed on its basis. In such a situation, it was incumbent on the part of the trial court to have got the pleadings clarified under the provisions of order X Rule 1 C.P.C. However, the trial court failed to do so. From the judgment of the trial court, it seems that before the said court, the notice was contended to be bad on the ground that it was given by the plaintiff alone and not by the entire body of co -owners of the property. As the trial court had held that there was no joint family in existence on the material date and the plaintiff was not the Karta, therefore, the notice was necessarily a bad one as being not on behalf of the entire body of co -owners but only on behalf of one of such co -owners The second point on which the notice was held to be bad was that the rents were really not in arrears inasmuch as they had been paid to one of the co -owners, namely, Prag Das. From the judgment, therefore, it is clear that no point was raised before the trial court that the notice was bad on the ground that it had to be six months' notice. The lower appellate court, however, gave a finding that Ext. 1 which was the lease deed by which the tenancy was alleged to be created in 1954 shows that the pre mises had been let out for running a flour mill etc. Therefore, it was held that it was a tenancy for manufacturing purposes and hence six months' notice was required. In my view, the lower appellate court was not entitled to hold the notice to be bad on the said ground when the defendants had not questioned it on the said ground in their written statement and the parties had not gone to trial on the said question and the controversy was never raised before the trial court. Apart from the said consideration, I think that the lower appellate court was wrong in holding that a six months' notice was required in the facts of the case. In para 1 of the plaint, it was alleged as follows: - "Yeh ki muddai ka khandan mushtarka hai aur wuh apne khandan ka karta hai aur muddalehum uske makan no. 261/262 Sadar Bazar, Allahabad me beadaye keraya mubligh 15/ - rupiya mahwar muqeem hai aur Kerayadari bar mah ke yakum tareekh ko shuru hoti hai." The clear allegation in the said paragraph was that it was a monthly tenancy and the month of tenancy commenced from the first day of each English calendar mouth. In para 1 of the written statement, it was stated "that in para 1 of the plaint, occupying house nos. 261 and 262, Sadar Bazar at a monthly rent of Rs.15/ - and tenancy beginning from first is admitted." It is obvious that the defendants admitted the plaintiff's case that it was a case of monthly tenancy which started on the first day of each English calendar month. THIS admission will be wholly inconsistent with a case of yearly tenancy, where six months' notice is required. Section 106 of the Transfer of Property Act lays down as under: - "In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable on the part of either lessor or lessee, by six months' notice and a lease of immovable property for any other purpose shall be deemed to be d lease from month to month, terminable, on the part of either lessor or lessee, by thirty days' notice. Every notice under this Section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property." In view of the aforesaid admission of the defendants in the written statement, it was not open to the court to come to a finding that it was a case of yearly tenancy requiring six month's notice. Even if the tenancy be for manufacturing purposes, it is open to the parties to contract that the tenancy will be a monthly one. The presumption referred to in section 106 would come into play only when there is no contract to the contrary between the parties. In the instant case, when the defendants themselves were admitting in reply to the plaintiff's allegation that it was a case of monthly tenancy, then it should have been held that the -parties had entered into such a contract stipulating for a monthly tenancy and not for an yearly tenancy even though by the terms of the contract it was open to the lessee to carry on manufacturing activity also. More over, the interpretation of relevant document by the lower appellate court is not correct. In fact the said court has, by mistake, referred to Ext. 1 which is the lease deed dated 8th January, 1949, and not the Sarkhat of 1954. The document of 1954 is a lease deed dated 5 -3 - 1954 executed by both the lessor and the lessee. It is this document which the lower appellate court had in view but by mistake the said court men tioned Ext. 1. It is stated in this document that the lessee was for the time being running a four mill but it was open to him to use the tenanted accommodation for running an oil crusher or a fodder cutting machine or for running any other business. I shall hereafter consider the im plication of the said term but I may point out that in the opening part of the lease deed, it is clearly stated that the lessee was occupying the tenanted accommodation as a monthly tenant "bataur kirayedar mahana." In view of this clear statement that the lease was a monthly one, it was not open to the lower appellate court to seek to consider the nature of the tenancy on the basis of the purpose or the user of the tenanted accom modation for manufacturing purposes or non -manufacturing purposes. Irrespective of whether the user was for manufacturing purpose or for other purpose, if the parties clearly agreed that the tenancy was to be a monthly one, there was no scope for invoking any presumption under Section 106 of the Transfer of Property Act because the Section itself opens with the words "in the absence of a contract or local law or usage to the contrary." In view of what I have stated above, it is really not necessary for me to consider whether the tenanted accommodation was meant to be used for manufacturing purpose or for other purpose. However, as the lower appellate court has alluded to the said purpose on the basis of the recital in the lease deed and as the learned counsel for the parties have also addressed long arguments on this controversy, I shall briefly deal with the same. Sri Kunzru placed reliance on the following cases: - 1. Sati Prasanna v. Md. Fazel, A.I.R. 1952 Calcutta 320.

(2.) BENOY Kumar v. I.T. Commissioner, A.I.R. 1954 Calcutta 224.

(3.) UMRAO Mai v. Heera Lal, A.I.R. 1973 Rajasthan 337.