ABRAR HUSAIN Vs. ABDUL RAHIM

JUDGEMENT

(1.) THIS is a plaintiff's appeal against the judgment and decree dated 25-7-1968 passed by II Temporary Civil and Sessions Judge, Meerut. The plaintiff-appellant brought suit for ejectment and damages for use and occupation alleging that the defendant-respondent was his tenant of the land at Rs. 6/- per month, under a registered lease deed dated 1-2-1958. The ejectment was sought on two grounds: (1) The respondent had made pucca constructions in violation of condition no. 3 of the lease deed: and (2). The respondent had not paid rent for more than two years and as such his tenancy was determined by means of a notice under section 106, Transfer of Property Act. The main plea of the respondent was that he was not a lessee of the appellant and that he was a licensee of the appellant and that the licence was irrevocable. Both the Courts below did not find substance in the contention of the respondent. The trial Court decreed the appellant's suit for all the reliefs claimed by him. But the first appellate Court dismissed the suit on the ground that no notice under section 111 (g), Transfer of Property Act, forfeiting tenancy was given by the appellant. Consequently, the amount of rent/damages for use and occupation was modified. Sri L. P. Naithani, learned counsel for the appellant contended that the appellant had two remedies: (I) To forfeit the tenancy by giving notice under section 111 (g) for violating condition no. 2 of the lease deed because instead of temporary thatched kuohcha kotha the respondent had made pucca cons tructions ; and (2) by terminating tenancy in the ordinary manner provided under section 106 of the Transfer of Property Act for not paying rent for more than two years. Condition no. 4 of the lease deed says that if rent for two years fell in arrears, the appellant would be entitled to eject the respondent and to take possession of the Malwa of the respondent without paying any compensation. The appellant simply gave notice under section 106, Transfer of Property Act. A perusal of the plaint shows that the appellant claimed possession by ejectment of the respondent. He did not claim possession on the Malwa of the respondent. It means that he was not enforcing condition no. 4 as a whole. Therefore, for the violation of the condition no. 4, it was not neces sary for the appellant to have forfeited tenancy by giving notice under section 111 (g). It is well known that under the present law governing the relation ship of landlord and tenant, if the tenant falls in arrears of rent for more than four months, the landlord can eject him. In this case, he has simply to give + a notice under section 106, Transfer of Property Act. THIS position is analo gous to the position appearing in the instant case. Therefore, the appellant could terminate his tenancy by a simple notice under section 106 Transfer of Property Act. As the appellant chose this remedy it was not necessary for him to have adopted the other remedy of forfeiting tenancy for the violation of condition no. 2 of the lease deed. Therefore, the first appellate court fell in legal error in dismissing the appellant's suit for ejectment of the respondent on the ground that the appellant should have given notice under section 111 (g) of Transfer of Property Act. THIS legal error has gone to the root of the case and as such this Court would be justified in interfering with the decree passed by the first appellate court. The position that follows is that the decree of the first appellate court cannot be maintained and that the decree of the trial court has to be restored. Appeal is accordingly allowed and the decree dated 25-7-1968, passed by the IInd Temporary Civil and Sessions Judge, Meerut, is set aside and the dec ree dated 2-12-1967 passed by the trial court is restored. Appellant will get costs on ex parte scale, of this Court from the respon dent for no appearance was put in on his behalf.