GOKUL CHAND Vs. SHIB CHARAN

JUDGEMENT

(1.) THIS was a suit by the (sic) respondent for the ejectment of the appell (sic) from the southern portion of a shop (sic) in the town of Moradabad. The (sic) originally the joint property of (sic) and the appellant. The (sic) in 1900 sued for partition of the shot separate possession of his share of it. (sic) suit terminated in a compromise, according to which the shop was divided between the parties, the respondent getting the southern portion, and the appellant the northern portion of it. But it was agreed that the respondent should give to the appellant a lease of the southern portion for eight years. It was part of the compromise that the respondent should give the appellant a registered lease. No lease was ever given but the appellant occupied the southern portion of the shop as the tenant of the respondent and it has been found by the Courts below that the term of eight years for which the appellant was to hold possession as tenant terminated on the 20th September 1908. Immediately after the expiry of the term, the respondent endeavoured to get the appellant to vacate the southern portion of the house. But the appellant resisted all efforts to dislodge him. Ultimately, on the 21st February 1910, the respondent brought the present suit. The appellant resisted the suit in the Court of first instance on the ground that the respondent s next friend agreed to allow the appellant to remain in possession of the respondent s share of the house until the respondent attained majority. That defence failed. In appeal to the District Judge, the appellant took two points neither of which has been discussed before me. At the hearing he was allowed to raise a third point, namely, that the respondent was not entitled to maintain the suit as no notice to quit, as required by Section 106 of the Transfer of Property Act, had been served on the appellant. The lower Appellate Court called on the Court of first instance for a finding on the question whether any notice to quit had been given by the respondent to the appellant. The first Court then found that the tenancy terminated on the 20th of the month and that due notice to quit on the 20fch of February 1910 had been given to the appellant through the post. That finding was affirmed by the lower Appellate Court. In second appeal to this Court it is contended (sic) at the notice which was given does not (sic) ply with Section 106 of the Transfer of (sic) Act, because it was not given (sic) to the appellant or to any (sic) or servant at his residence, or a conspicuous part of the house. (sic) that the notice was sent by post (sic) taken by the postal peon to the shop (sic) in question. The appellant says that lie does not reside in-the shop. THIS point does not seem to have been taken in the lower Appellate Court, but there is good reason for thinking that the appellant does not reside in the shop, for the respondent himself described the appellant in the plaint as resident of another part of Moradabad. It seems to me that it must be held that the notice does not comply with Section 106 of the Transfer of Property Act. The respondent, however, contends that Section 106 has no application to the present case. The relevant portion of that Section is as follows: In the absence of a contract, a local law or usage to the contrary, a lease of immoveable property for any other purpose (which includes a lease of the kind now in question) shall be deemed to be a lease from month to month terminable on the part of either lessor or lessee by fifteen days notice expiring with the end of the month of tenancy. It is quite clear that between 1900 and September 1908 this was not a lease from month to month. It was a lease for eight years by virtue of the compromise, notwithstanding that the parties intended that there should be a registered document, for the compromise was incorporated in a decree. It is contended that the appellant remained in possession after the 20th September 1908 and from that date was a tenant from month to month. But the evidence shows that the respondent endeavoured to get the appellant out of the house as soon as the lease terminated. There is no ground for holding that the appellant remained in possession with the consent of the respondent. The appellant retained possession in defiance of the respondent and was not entitled to any notice to quit before the suit was brought. In my opinion, Section 106 of the Transfer of Property Act does not apply to this case. Therefore, the respondent was entitled to a decree for possession of the southern portion of the shop, notwithstanding that the notice to quit does not comply with Section 106. The appeal is dismissed with, costs.