RADHAMOHAN KHONTLA Vs. DEENABANDHU PANIGRAHI

JUDGEMENT

(1.) THIS is a Plaintiffs' second appeal against the judgment and decree D/10 -8 -1951 of Sri P.C. De, Subordinate Judge of Berhampur, modifying the decree passed by the trial court and rejecting the Plaintiff's prayer for ejectment. The Plaintiff's case is that the Defendant was a tenant of the suit house for a period one year commencing on 12 -9 -1947 agreeing to pay rent at the rate of Rs. 10/ - per month payable at the end of every month. The Defendant paid rent up to 12 -9 -1948 and he was in arrears since then. The Plaintiff served a notice on Defendant to quit the suit -house by one week from the date of service that is, from 9 -12 -1949. The Defendant however replied on 16 -12 -1948 agreeing to vacate the house within three months. The Defendant has not vacated the house on the expiry of three months. The Plaintiff therefore sues for ejectment of the Defendant and for recovery of arrears of rent which is Rs. 90/ -.

(2.) THE Defendant however denied any arrears of rent and took the further plea that the suit was not maintainable in the absence of the permission under the House Rent Control Order. The Defendant also resisted the claim of the Plaintiff for ejectment.

(3.) THERE was a lease -deed executed for one year on 12.9.1947. There cannot be any dispute over the position that according to the provisions of Section 107 of the Transfer of Property Act, a lease can be created either by a registered document or by delivery of possession. This document not being registered is inadmissible in evidence. But nevertheless it is the admitted case of both parties that possession was delivered in favour of the Defendant and the Defendant was the tenant in respect of the suit -house. The document lease also has not been executed by both parties as required under Section 107. In a case of this nature where the document is inadmissible and invalid on account of non -compliance of the provisions of Section 107 if is the settled law that if the tenancy will be covered by the provisions of Section 106 of the Transfer of Property Act, Vide Ramkumar v. Jagadish Chandra, A.I.R. 1952 S.C. 32. As this tenancy is for residential purposes, it will be deemed to be a monthly tenancy terminable only by a clear notice of fifteen days expiring with the end of a month of the tenancy. In the case before us, the notice served upon the Defendant to quit the house within one week is clearly therefore invalid on account of the non -compliance of the provisions of Section 106 of the Act. But there is one other important aspect of the case on account of which different consideration should prevail and the case is taken out of the mischief of the provisions of Section 106. The Defendant in reply to the notice sent by the Plaintiff sent a letter D/16.12.1948. The clear averments in the reply are to the effect "But however since your client is the immediate landlord and my client having executed a rent -deed in his favour, my client is magnanimous enough to offer half of the portion of the said house if your client is prepared to take the same. If, however, your client wants the complete house he will have to wait till three months hence by which time my client will remove his business to another house and leave the house in question to your client's possession." These terms clearly indicate that the Defendant sent an offer to the Plaintiff to vacate the house within three months and leave the house in Plaintiff's possession. The Plaintiff has preserved this document and filed and got it exhibited as Ex. 1. He also avers in the plaint that in spite of the Defendant promising to vacate within three months he is still continuing in possession and so he has prayed for ejectment. In our opinion, the Plaintiff has also clearly accepted this reasonable offer of the Defendant and in fact waited till 11.7.1949 to file the suit. This amounts to a contract between the parties that the Defendant would vacate the house on the expiry of the three months from the date of his reply, that is, from 16.12.1948. As is clear from a mere perusal of Section 106 of the T.P. Act, the provisions are always subject to any contract between the parties and we have no doubt In our mind to come to the conclusion that this contract between the parties takes the present case out of the mischief of the provisions of the section demanding a clear notice of fifteen days to terminate the tenancy. On this simple ground, therefore, the Plaintiff is entitled to the relief of ejectment as prayed for.