BOMISETTI RAMACHANDRA RAO Vs. N R MANIKAYA RAO

JUDGEMENT

(1.) The defendant in O. S. No. 302/1967 on the file of the court of the District Munsif, Bapatla is the appellant in this Second Appeal. He took on lease a vacant site in the town of Bapatla belonging to the plaintiff for a period of five years from 1954 on a monthly rent of Rs. 35.00. The lease expired but was renewed in 1960 for a period of six years from 20-5-1960 on a monthly rent of Rs. 45/0. The period of lease expired on 19-5-1966. According to the plaintiff the defendant failed to delivery possession of the site in spite of repeated demands and the was, therefore, compelled to file the suit. The defendant pleaded that there was a further agreement to renew the lease for a period of six years from 19-5-1966. Alternatively the defendant pleaded that there was no proper notice to quite. The trial Court found that the case of the defendant that there was an agreement to extend the lease by another six years from 19-5-1966 was not true. The trial Court found that the defendant was a tenant holding over, but held that there was no need for giving any notice to quit as the deed of lease, Ex. A-11 expressly provided that no notice to quite would be necessary and that the tenancy would stand determined on the expiry of the period of lease. On those findings the learned District Munsif decreed the suit. The lower appellate Court confirmed the finding of the trial Court that the agreement to renew the lease for another period of six years, set up by the defendant, was not true. The lower appellate Court did not give any finding whether the defendant was a tenant holding over but held that in view of the express provision in Ex. A-11 the defendant was not entitled to any notice to quit. The defendant has preferred this Second Appeal.

(2.) It was urged by Sri Ramalingeswara Rao, learned counsel for the appellant that the findings of the trial Court that the defendant was a tenant holding over was not disturbed by the lower appellate Court and that the admitted facts also showed that he was a tenant holding over. He submitted that if the defendant was a tenant holding over he was entitled to a proper notice to quit in accordance with the provisions of the Transfer of Property Act notwithstanding the express provisions in the original deed of lease. In support of his submission he relied upon the decision of the Madras High Court in Bapayya v. Venkataratnam (AIR 1953 Mad 884). This decision undoubtedly lays down that a stipulation in the original lease that at the expiration of the term, and lessee should give up possession without notice, could not be imported into the new tenancy created by holding over and the acceptance of rent. The question, therefore, is whether in the present case the defendant can be said to be a tenant holding over so as to attract the benefits of Section 116 of the Transfer of Property Act. Section 116 says:

(3.) Section 116 of the Transfer of Property Act was constructed by their Lordships of the Supreme Court in Karnani Industrial Bank Ltd. v. Province of Bengal (AIR 1951 SC 285). It may be mentioned here that Fazl Ali J., and Mukherjea J., who were parties to the majority judgment of the Federal Court in 1949 FCR 262 = (AIR 1949 FC 124), were also two of the Judges that decided this case. The opinion was in fact delivered by Fazl. Ali. J. The case of 1949 FCR 262 = (AIR 1949 FC 124), was distinguished on the ground that the acceptance of rent was after the expiration of the tenancy in that case while in the case before them the amount was accepted long before the expiration of the tenancy. But the learned Judge interpreted Section 116 and stated.