MADALSA DEVI Vs. MRIDULA CHANDRA

JUDGEMENT

(1.) These two-appeals which have been heard together and are being disposed of jointly arise out of a -common judgment by the first appellate Court in the following circumstances.

(2.) The plaintiff-respondent instituted a suit for eviction of the defendant from the suit premises, in addition, arrears of rent and damages or unauthorised occupation were also claimed. The trial Court disallowed .the reliefs of eviction and damages for unauthorised occupation. It, however, allowed the suit only in respect of the claim for the arrears of rent. The plaintiff filed an appeal against the trial Court's judgment. The defendant also went in appeal. These two appeals were heard and disposed of by the Ist appellate Court by a common judgment whereby it dismissed the defendants appeal and allowed the plaintiffs appeal decreeing the suit in whole. This necessitated filing of these two separate appeals before this Court which have been heard together and are being disposed of by this judgment.

(3.) The facts of this case are very brief and can be stated as follows : Admittedly the defendant was inducted into the suit premises on, the basis of a registered deed of lease executed by the mother of the plaintiff on 2-9-1948, in favour of the defendant. This deed was for a period of 65 years commencing from 8-8-1948. As the judgment proceeds this deed will come in for a closer examination. The plaintiff claimed that after the death of her mother on 13-6-1967 and his father on 25-6-1458-and on the basis of two partitions in the family she became the exclusive owner of the suit property and the defendant also recognised her as the landlord by tendering to her, for a while, the monthly rent for the suit premsies. The defendant denied that she was the exclusive owner of the suit property and resisted the suit also on the ground of non-joinder of the other co-sharers, namely, the plaintiffs sister and the plaintiffs grand mother. This objection of the defendant however, stands concluded by the findings of the two Courts below. The plaintiff further stated and the defendant did not deny that the defendant had defaulted in payment of the monthly rent from August 1970 to March, 1971. The defendant sought to explain that the rent for those months could not be paid as no one from the side of the plaintiff came to collect them. It was further stated in this regard that the rent for the months of August to December, 1970 was later remitted to the plaintiff by money order which she refused to accept unreasonably and unjustifibly. The plaintiff also said that as a consequence of the default in payment of rent she gave a notice under Section 106 of the Transfer of Property Act determining the tenancy of the defendant and asking her to hand over vacant possession of the suit premises to the plaintiff. The defendant however, refused to oblige. The defendant admitted the service of the notice under Section 106 of the Transfer of Property Act but maintained that it was wholly misconceived and irrelevant. The defendant being a lessee for a fixed term the lease could not be terminated by a notice under Section 106 of the Transfer of Property Act but could only be determined in terms of Section 111 of the Act. On the basis of the admitted default in payment of the monthly rent the plaintiff sought eviction of the defendant in terms of Section 11(i)(d) of the Bihar Buildings (Lease Rent and Eviction) Control Act (hereinafter referred to as 'the Rent Act'). The defendant claimed that on the facts and in the circumstances of this case the Rent Act had no application and her rights and obligation were governed by the provision of the Transfer of Property Act. The defendant pleaded that she was in occupation of the suit premises on the basis of a lease for 65 years. She further stated that what was leased out to her was not any building but vacant land with the right to make constructions therein. In furtherance of her right under the lease agreement she had made constructions over the land at considerable expense. It was further pointed out that there was no forfeiture clause in the lease and any default in payment of the monthly rent would not lead to the forfeiture of the lease but would only attract interest on the unpaid rent at the rate of 1 per cent per annum. It was also pointed that contrary to a forfeiture clause there was a clause in the lease which made the lessor power less to terminate the lease before the expiry of the stipulated period.