MOHANLAL CHUNILAL LOTWALA Vs. KESHARIMAL MOTILAL JAIN

JUDGEMENT

(1.) THE petitioners are original defendants nos.2 to 4 and by this writ petition challenge the order dated 6.3.1979 of the 2nd Joint Civil Judge(J.D.), Jalgaon, in Regular Civil Suit No.263/1969 decreeing the suit of the plaintiff-landlord for possession and arrears of rent and the order dated 10.12.1980 of Extra Assistant Judge, Jalgaon, in Civil Appeal No.110/1979 dismissing the appeal and confirming the decree for possession and arrears of rent.

(2.) THE property involved in the litigation is 11670 sq.yards i.e.2 Acres and 38 Gunthas of C.T.S.No.2702/1 - Survey No.298/A/1 situated at Jalgaon, Dist. Jalgaon. It originally belonged to one Vithal Pardeshi and he leased it out on 31.4.1945 to one Maganlal for 15 years at the rate of Rs.750/- per year (Exh.114). THE lessee was to bear the agricultural and N.A.assessment charges as well as the Municipal taxes and the property was taken on lease for erecting a Flour & Pulse Mill. It stood terminated on 31.3.1960 by expiry of the period and Maganlal died before the expiry and original defendant no.1-Chunilal occupied the suit property as his heir. Defendant nos. 2 to 4 (the present petitioners) and 7 are the heirs of Chunilal who died during the pendency of the suit. THEre was no contractual tenancy between the parties after the expiry of the period of the original lease, but on account of the provisions of the Bombay Rent Act, the defendants continued with the property as tenants at the monthly rate of Rs.62.50 and the N. A. assessment charges. THE plaintiff terminated the tenancy of the defendant by notice dated 27.3.1963 on the grounds of arrears of rent from 1.4.1961 onwards and also for reasonable and bona-fide need and requirement of the plaintiff to occupy these premises. Prior to the said termination, the plaintiff had filed Suit No.222/65 for possession on both these grounds, but restricted his claim only to the recovery of arrears of rent and on obtaining the liberty to file a fresh suit on the same cause of action, instituted present Regular Civil Suit No.263/1969 claiming the possession of the rented lease premises for default in payment of rent and for the reasonable and bona-fide need u/ss.12(3)(a) and 13(1)(g) of the Bombay Rent Act, 1947. THE plaintiff claimed total amount of Rs.6114.74 from the defendant towards the arrears and other charges. Defendant nos.5 & 6 - Kikabhai and Jayantilal (respondent nos.2 & 3 to this writ petition) had filed Special Suit No.10/1964 against defendant nos.2 to 4 for claiming ownership over the structures on the suit land and as such they were joined as defendants in the present suit.

(3.) SHRI Mandalik, the learned counsel for the petitioners-tenants, firstly assailed decrees on the ground of legality of the suit notice and argued that the original lease-deed - Exh.114, was for year to year and for the purpose of manufacturing and as such is governed by Section 106 of the Transfer of Property Act. It is therefore, submitted that the suit notice dated 18.3.1968 is not proper and valid inasmuch as the tenancy is not terminated by giving six months notice. Both the Courts below, on appreciation of evidence on record, have held the defendants as monthly tenants. It is no doubt true that the original deed (Exh.114) was for year to year and the lease was further renewed by Exhibits 163 to 165, however, it is material to note that Exhibit 163 is not a document extending the lease period, but is a receipt acknowledging the payment by the tenant to the landlord and the payment was for a period of one year i. e. upto end of 31.3.1961. The further documents Exhs.164 and 165 are also the receipts in respect of payments made by the tenants to the landlords. There is admittedly no document to show that after the expiry of the period of the original lease on 31.3.1961, the tenancy was agreed for year to year. Exhibit 165 - the receipt acknowledges the payment of Rs.345/- and it was for the period of 5 and half months. Therefore, after 27.3.1961, the then landlord did not extend the lease from year to year. Further it is to be noted that the amount of Rs.345/- mentioned in Exhibit 165 was arrived on calculating the monthly rent at the rate of Rs.62.50. Therefore, when the original lease was determined on 31.3.1960 by efflux of time, the defendants were in possession of the property when the Bombay Rent Act, 1947, came into force and became the statutory tenants by virtue of Section 5(11)(b) of the said Act. It is not in dispute that after 11.9.1961, no rent has been paid by the defendants to the plaintiff. Both the Courts, in view of this evidence on record, have, therefore, been justified in holding the defendants as monthly tenants and as such the suit notice terminating the monthly tenancy as required by Section 12(2) of the Bombay Rent Act as valid.