MOHAMMED INDRIS MIAN Vs. DOMAN SAH

JUDGEMENT

(1.) Defendant is the appellant in this second appeal. The plaintiff-respondent filed a suit for eviction of the appellant from a house in which the appellant was a monthly tenant at a rental of Rs. 25/-. According to the plaintiff, the defendant had agreed to pay the aforesaid amount in the first week of the month following for which the rent became due. but later he defaulted in the payment of rent, and, as such, he was liable for eviction. A notice under Section 106 of the T. P. Act (hereinafter to be referred to as the Act) was sent by the plaintiff as the karta of the family to the defendant through registered cover, but the defendant refused to receive the same on 13-6-1969. In that notice, the plaintiff had asked the defendant to vacate the house by 30th June, 1969. When the defendant did not vacate the house in question by that date, the plaintiff filed the suit in question in the Court of learned Munsif. Arrah for eviction of defendant. The defendant appeared and his defence, inter alia, was that he was owner of a portion of the house in question, and, as such, there was no question of the house being in his possession as a tenant or the defendant having defaulted the payment of rent.

(2.) Learned Munsif, on a consideration of materials on record, came to the finding that there was relationship of landlord and tenant between the plaintiff and the defendant. He also held that the notice under Section 106 of the Act was validly sewed on the defendant and as the defendant had not paid rent to the plaintiff, he was liable to be evicted. The appeal filed on behalf of the defendant was dismissed by the learned Subordinate Judge affirming the findings of the learned Munsif; hence, this second appeal.

(3.) Learned counsel appearing for the appellant submitted that in the facts and circumstances of the present case, the tenancy in question was never terminated in accordance with the provision of Section 106 of the Act so as to give cause of action to the plaintiff for filing the suit in question. In this connection, learned counsel has drawn our attention to the notice under Section 106 of the Act (Ext. 2). That notice is in Hindi addressed to the defendant saying that the house in question had been given to the defendant at a rent of Rs. 25/- per month and as the defendant was not paying the said rent since Jan.. 1967 and also as the house was required for the personal use of the plaintiff, the notice was being given to the defendant to vacate the house in question by 30th June, 1869 so that the plaintiff may occupy the same by 1-7-1969. It has been also mentioned that if the defendant did not vacate the house in question by the date given therein, then the plaintiff will be forced to take legal steps. Learned counsel appearing for the appellant has pointed out that nowhere in the notice it has been stated that the monthly tenancy was being terminated by that notice which is a must for a notice under Section 106 of the Act. Learned counsel has submitted that Section 106 requires the lease to be terminated by a notice contemplated under that section and it cannot be terminated merely by asking the defendant to vacate the premises in question. It is now almost settled that before a suit for eviction can be filed against a lessee or a tenant, the lease has to be terminated. If the contention of the learned counsel appearing for the appellant is accepted that when a notice simply asks the lessee or a tenant to vacate the premises in question, there is no termination of the lease then the necessary corollary thereof will be that the suit of the plaintiff was not maintainable. This leads to the question as to whether in a notice under Section 106 of the Act it has to be specifically stated that the lease was being terminated, in cases of yearly lease by the end of a year of the tenancy and in cases of monthly lease with the end of the month of the tenancy. Learned counsel in support of this proposition has drawn our attention to certain decisions of the Allahabad High Court. The earliest decision, which is on the point and has been referred to, is a Full Bench decision, Bradley v. Atkinson ((1885) ILR 7 All 899) (FB). In that case the landlord had given a notice to the tenant saying that the rooms in question were in his possession and if those rooms were not vacated within a month from that date, he would file a suit against him for ejectment as well as for recovery of rent. Thereafter, the suit in question was filed. It was held therein with reference to the terms of Section 106 of the Act it was not a notice as required by law inasmuch as it was not a notice of the lessor's intention to terminate the contract at the end of the month of tenancy. Straight, J., observed that it was merely a demand for possession of the premises. For the purpose of holding that notice was invalid, certain other circumstances were also pointed out including that no date was specified, which was a must in view of the provisions of Section 106 of the Act. Again, in the case of Ahmad Ali v. Jamal Uddin (AIR 1963 All 581), a Bench of the Allahabad Hieh Court, after referring the aforesaid Full Bench decision ((1885) ILR 7 All 899) (FB), observed:-- "A notice terminating the tenancy may include a demand for possession but a notice only demanding possession cannot be interpreted as a notice terminating the tenancy." However, in that case, on proper construction of the notice it was held that the tenancy had been terminated. In the case of Hakim Ziaul Islam v. Mohd. Rafi (AIR 1971 All 302) a learned single Judge declared a notice under Section 106 to be invalid because the landlord had determined the tenancy in question with effect from the date of notice and had asked the tenant to deliver possession within a month from the date of receipt of the notice. It was held that as the tenancy was purported to be terminated on the date of notice, it was invalid under Section 106 of the Act. Learned counsel has also referred to another decision of Allahabad High Court in the case of Farooq Ahmad v. Muneshwar Bux Singh (AIR 1972 All 155) where a learned single Judge held a notice to be invalid in which the landlord had called upon the tenant to deliver possession on a particular date after receipt of the notice holding that the tenancy had not been terminated. Apparently, these cases help the contention raised on behalf of the appellant, but I shall immediately indicate that on proper consideration it cannot be accepted.