LUXMI DEVI Vs. SNEH LATA

JUDGEMENT

(1.) THE second appeal is at the instance of the defendants who have been directed to be ejected from the property. The suit was filed by the plaintiff against the defendant who was wife of the plaintiff's brother on a plea that the property at the ground floor had been let out at the rate of Rs. 5,000/ - per month. The plaintiff had sought for ejectment after issuance of notice under the Transfer of Property At terminating the tenancy. The defendant's contention was that there was no form of tenancy and the defendant was herself a joint owner with the plaintiff, having contributed in equal measure to the price of the property at the time of purchase in name of the plaintiff. There was also a contention that there was no valid notice and that the suit filed for ejectment on that basis cannot be sustained.

(2.) THE trial Court dismissed the suit holding that the tenancy was not established and the appellate court reversed the finding and directed ejectment holding that the institution of suit itself constituted notice and there was no requirement to terminate the tenancy prior to the suit under any of the provisions of the Transfer of Property Act.

(3.) IF the plaintiff's contention was that the defendant was tenant, there was nothing inherently artificial in a situation of oral tenancy between close relatives such as brother's wife. If it were to be contended that the tenancy was not true then the possession could have been in the capacity as a co -owner as claimed by the defendant or by mere license. If it was a case of license the issue of filing of suit for recovery of possession was itself sufficient to secure a decree for ejectment. If it was a case of joint ownership, the onus of proof was very much on the defendant and it has been found by both the courts below that there was no such proof. On the other hand, there was weighty evidence placed by the plaintiff through witnesses about the acquisition of property and her absolute ownership. If the tenancy had been admitted it would be competent for a defendant to plead that the notice terminating tenancy was not in accordance with law. If the plea was that she was not a tenant she would be barred from contending that there was any defect in notice. The provisions of Transfer of Property Act is not applicable strictly in such situation and a suit filed for recovery of possession itself is sufficient notice and accords with equity and conscience. The decree passed by the appellate court ought to be sustained on the claim by the plaintiff as a owner and failure of the defendant to succeed in the defence that there was a joint ownership. The principle that the plaintiff will succeed on the basis of pleadings must be understood in the context of plaintiff seeking for possession in accordance with law. The institution of the suit was one such mode of securing lawful possession. There is no substantial question of law involved for admission and consideration of the same in appeal.