SOHANSINGH BHARATSINGH Vs. NARHAR NARAYAN GODBOLE

JUDGEMENT

(1.) THIS Special Civil application arises out of the proceedings under the Bombay Rent Act instituted by respondent No. 1 plaintiff landlord against petitioner - defendant No. 1 and respondent No. 2 (defendant No. 2 ). The premises in dispute appear to be an open and with some structures thereon situate at City Survey No. 366, Sadashiv Peth, Poona City. Originally the premises were let out to one Sevaksingh Makhansingh on a rent of Rs. 25/- per month. The said Sevakshingh assigned his tenancy rights in favour of defendant No. 2. Defendant No. 2 then started paying rent at the rate of Rs. 30/- to plaintiff - landlord. On 12-2-1963 defendant NO. 2 assigned his interest in the premises to defendant NO. 1. It appears that defendant No. 2 through his lawyer Redkar informed the fact of this assignment to the landlord and asked him to accept the rent from defendant No. 1. In reply thereto the landlord gave notice on 20-3-1963 calling upon defendants Nos. 1 and 2 to vacate the premises for various reasons, including that the same were reasonably and bona fide required by him for his own occupation. Copies of this notice addressed to the lawyer Redkar were endorsed to defendants Nos. 1 and 2. After some time the present proceedings were instituted for possession against both the defendants by the landlord on various grounds, including the one that he required the premises for his own occupation, where he wanted to construct a house for himself. Defendants denied the various averments made in the plaint. By judgment and decree dated 7-8-1964 in Civil Suit No. 3396 of 1963 the trial Court decreed the suit on the ground of the landlord requiring the premises bona fide and reasonably for his own occupation under Section 13 (1) (g) of the Bombay Rent Act. On appeal by the tenant to the District Court, the decree has been affirmed by the judgment and decree dated 12th April 1966 in Civil Appeal No. 696 of 1964. The learned Third Extra Assistant Judge, Poona, however, granted the decree for possession under Section 13 (1) (i) of the Rent Act. This decree is challenged in this Special Civil application by defendant No. 1. Defendant No. 2 naturally supports his case.

(2.) MR. Sharad Manohar, the learned Advocate appearing for the petitioner, contends that the quit notice is invalid for two reasons. He firstly contends that notice addressed to a lawyer, cannot be effective for terminating tenancy where lawyer is not shown to have authority to receive the same. He secondly contends that the notice does not in terms give 15 days time as required under Section 106 of the Transfer of Property Act. There is hardly any substance in either of these contentions of the learned Advocate. Admittedly copies of the notice addressed to the lawyer were served on both the defendants indicating that the tenancy was sought to be terminated thereby. Without going into the question as to whether the lawyer to whom the notice was mainly addressed was authorised to receive this notice or not, the implications of such copies also simultaneously being received by both the defendants are too plain. I have not been to appreciate in the face of these admitted facts how notice ceases to be effective merely because original of the same was addressed to a lawyer, assuming that notice to defendant No. 1 was also necessary. Secondly, the said notice also calls upon the defendants to vacate the premises and deliver peaceful possession thereof to the landlord "by the end of the month of tenancy commencing after receipt of this notice". It is not suggested that, after the receipt of this notice, less than 15 days were left with the tenant before the expiry of the period of the tenancy. All that is suggested is that the notice itself was given on 20th March, 1963. The whole foundation for this submission is based on the wording of the notice saying that he was "giving this notice extinguishing the rights. . . . . . . . . . hereby". This wording cannot be construed to mean that, tenancy was being extinguished with effect from the date of notice. These words only, notify that the tenancy rights were being extinguished by virtue of this notice dated 20th March, 1963, and obviously the tenancy was contemplated to be terminated "by the end of the month of tenancy commencing next after receipt of this notice. " There is thus no force in the first contention raised by Mr. Sharad Manohar.

(3.) MR. Sharad Manohar then contends that in either case the decree for possession under Section 13 (1) (i) is not warranted by the facts of the case. Premises assumed by the Assistant Judge, says the Counsel, themselves have no foundation in facts. The learned Assistant Judge, no doubt, assumes that the structure on the land in dispute belonged to the tenant and it is on this basis that the decree for possession is passed by him under Section 13 (1) (i) of the Rent Act. This assumption, according to Mr. Sharad Manohar, is not only not borne out by any evidence, but is contrary to the case pleaded by the landlord himself in his plaint. He drew my attention to the recitals in the plaint. Paragraph 1 of the plaint describes the suit premises to mean land at C. T. S. No. 367 admeasuring about 756 sq. feet with temporary shed thereon. In paragraph 2 of the plaint, the plaintiff in terms says that the property and the premises described in paragraph 1 belong to the plaintiff as full and absolute owner. The plain implication of this averment is that the plaintiff claims the ownership not only of the land but also of the temporary shed standing thereon. Paragraph 3 recites that the premises consist only of vacant lands and temporary shed thereon. This is not denied by the tenants. Evidence also was led by the parties on the basis of these averments. It is thus clear that, even according to the plaintiff's own case, the temporary shed or the structures on the land belonged to himself. There is thus no basis for the assumption that, it belonged to the tenant.