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Saligram Rai Chunilal Bahadur and Co. Vs. Abdul Gani and ors. - Court Judgment

LegalCrystal Citation
Subject;Property
CourtGuwahati High Court
Decided On
Case NumberSecond Appeal No. 90 of 1950
Judge
ActsTransfer of Property Act, 1882 - Sections 106; General Clauses Act, 1897 - Sections 27; Code of Civil Procedure (CPC) , 1908 - Sections 100 - Order 30, Rule 1
AppellantSaligram Rai Chunilal Bahadur and Co.
RespondentAbdul Gani and ors.
Appellant AdvocateS.M. Lahiri, S.K. Ghose and K.P. Bhattacharjee, Advs.
Respondent AdvocateK.R. Barooah, N.M. Dam and D.K. Sarma , Advs. (Guardian-ad-litem)
DispositionAppeal allowed
Excerpt:
.....1-6-1922 on 5-2-1947, the plaintiff firm, through its advocate, served a notice of eviction upon abdul gani and salamat ali requiring them to vacate the land at the end of february 1947. on their failure to comply with the terms of the notice, the plaintiff firm brought the present suit. (1) whether the suit is bad for non-joinder of all the heirs of late salamat ali as defendants? ' 5. on the first issue, the trial court held that the heirs of late salamat ali were joined during the pendency of the suit and that, the question, therefore, of the suit being bad for non-joinder of parties, does not arise. barua for the respondents, contended that notwithstanding the fact that the learned munsiff has decided this issue against the respondents, the suit nevertheless must be regarded as bad..........gani and salamat ali for delivery of khas possession by ejectment. during the pendency of the suit, salamat ali died and his legal representatives, namely, defendants 2-5, were brought on the record.3. it was the case of the plaintiff firm that in july, 1922 abdul gani and the deceased salamat ali occupied the land without any settlement, but later came to an arrangement by which they became the tenants of the plaintiff firm by promising to pay rent with effect from 1-6-1922 on 5-2-1947, the plaintiff firm, through its advocate, served a notice of eviction upon abdul gani and salamat ali requiring them to vacate the land at the end of february 1947. on their failure to comply with the terms of the notice, the plaintiff firm brought the present suit. in their written statements,.....
Judgment:

Thadani, C.J.

1. This is a second appeal from the judgment and decree of the Additional Subordinate Judge, U. A. D., dated 5-8-1950, by which he affirmed the judgment and decree of the trial Court which had dismissed the plaintiff's suit with costs.

2. The plaintiff firm, called Messrs. Saligram Rai Chunilal Bahadur & Co., brought a suit against one Abdul Gani and Salamat Ali for delivery of khas possession by ejectment. During the pendency of the suit, Salamat Ali died and his legal representatives, namely, defendants 2-5, Were brought on the record.

3. It was the case of the plaintiff firm that in July, 1922 Abdul Gani and the deceased Salamat Ali occupied the land without any settlement, but later came to an arrangement by which they became the tenants of the plaintiff firm by promising to pay rent with effect from 1-6-1922 On 5-2-1947, the plaintiff firm, through its advocate, served a notice of eviction upon Abdul Gani and Salamat Ali requiring them to vacate the land at the end of February 1947. On their failure to comply with the terms of the notice, the plaintiff firm brought the present suit. In their written statements, defendants 4 and 5 put the plaintiff to proof as regards the allegations contained in para. 2 of the plaint. None of the defendants denied that the plaintiff firm was the lessor. The defendants further contended that the suit was barred by reason of the provisions of Section 59, Indian Partnership Act read with Section 58 of the same Act. They also denied that they received any notice of eviction.

4. On the pleadings, the trial Court framed the following issues:

' (1) Whether the suit is bad for non-joinder of all the heirs of late Salamat Ali as defendants?

(2) Whether legally valid notice of ejectment was served on the defendants?

(3) Whether the plaintiffs are entitled to eject the defendants from the suit land and to recover rent and compensation claimed in the suit?

(4) To what amount of compensation, if any, are the defendants entitled in case of ejectment?

(5) To what relief are the parties entitled?'

5. On the first issue, the trial Court held that the heirs of late Salamat Ali were joined during the pendency of the suit and that, the question, therefore, of the suit being bad for non-joinder of parties, does not arise. Mr. Barua for the respondents, contended that notwithstanding the fact that the learned Munsiff has decided this issue against the respondents, the suit nevertheless must be regarded as bad for non-joinder of the heirs of late Salamat Ali, because they were joined beyond the time allowed by law. This point, however, was not raised either before the trial Court or the Appellate Court. The question whether the legal representatives of a dead party were joined within time, is a question of fact and cannot be raised for the first time in second appeal. The lower Appellate Court has not disagreed with the finding of the learned Munsiff on this issue.

6. On the 2nd issue, the learned Munsiff held that the notice was a valid notice. He came to the conclusion that the tenancy was a monthly tenancy commencing from the 1st of a calendar month, and that as a registered notice was sent by the plaintiff firm, on 5-2-1947, requiring the defendants to vacate the premises at the end of February 1947, the notice was a valid notice as between 5-2-1947 and the end of February, there were more than 15 days. The lower Appellate Court, however, stated:

'Besides this, the service of the notice has not been properly proved. The notices were sent under registered covers through the Post Office. Shri D.C. Mitra (P. W. 1) received back the acknowledgement receipts which have been marked Exs. 2 and 3. But the post peons were not called to prove the services of notices or Abdul Gani, defendant 1, and late Salamat Ali the predecessor-in-interest of defendants 2 to 5. Further the notice addressed to Abdul Gani, defendant 1, was sent to Markongselek in Sadiya Frontier, and not be his residence at Dibrugarh town.'

There is no obligation upon a lessor to prove service of notice upon the lessee if he sends a notice by registered post properly addressed.

The meaning of the expression 'service by 'post' is given in Section 27, General Clauses Act (10 of 1897), which says:

'Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression 'serve' or either of the expressions 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the

letter would be delivered in the ordinary course of post.'

It is not disputed that the notices were sent by registered post; all that is disputed is that the defendants did not receive the letter but this is belied by the acknowledgment filed. Moreover, in virtue of Section 27, General Clauses Act, the presumption is that, when a letter is properly addressed, prepaid and posted by registered post, and it contains the document, namely, the notice, service was effected at a time when the letter would be delivered in the ordinary course of post. The letter containing the notice was despatched from Dibrugarh to Markonselek in Sadiya where, in the ordinary course, a letter would take a couple of days to reach. The lower Appellate Court was, therefore, in error in saying that because the post peons were not called to prove the service of notices, the notices were not sent to the defendants.

The lower Appallate Court was also in error when it said that the letter addressed to Abdul Gani was sent to Markongselek in Sadiya, whereas his residence was at Dibrugarh. 'Abdul Gani did not elect to give evidence. None of the defendants elected to examine themselves. The learned Judge, therefore, had no justification for saying that Abdul Gani lived at Dibrugarh, and not in Sadiya. The learned Judge has referred to another aspect of the case bearing on the question of notice. According to him--to quote his words:

'The law requires that in case of joint landlords, one of the members cannot give notice to quit without the consent of other joint owners.'

A whole page of his judgment is devoted to the so-called joint ownership. If the learned Judge had turned to Section 106, T. P. Act, he would have found that the two parties with which a Court is concerned in suits for eviction based on tenancy, are the lessor and the lessee. A firm is an entity recognised by the Indian Partnership Act. In Section 4 of the Act, 'partnership' is defined as

'the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all'. 'Persons who have entered into partnership with one another are called individually 'partners' and collectively 'a firm', and the name under which their business is carried on is called the 'firm name'.'

The partners collectively, that is to say, as a firm, are not debarred from entering into a contract of lease. If they do, then they are the landlords and the firm is the lessor,--each partner acting as the agent of the other in law. It is not necessary that the identity of the partners should be disclosed either in the notice or in the suit unless the lessor or lessee makes a demand in accordance with the provisions of Order 30, Civil P. C. In the present case, neither did the defendants deny that the plaintiff firm was the lessor, nor did they call up the plaintiff firm to disclose the names of the partners. The learned Judge, therefore, was clearly in error in saying that as the partners of the firm have not been joined as parties and the notice was not served upon the defendants on behalf of the partners individually, the suit was not competent. It may be, as Mr. Barooah for the respondents has contended, that the plaintiff-firm was registered only in 1947, some 25 years later, and that in 1947 the same partners who let the premises in 1922 may not be in existence at the time of the registration of the firm in 1947. As we have stated, we are not concerned with the identity of the partners in a firm. The defendants have

not disputed that the plaintiff firm was their lessor, once the relationship of landlord and tenant was established between the plaintiff firm and the defendants, then whatever may have been the changes in the composition of the plaintiff firm, if indeed there were any, the defendants continued to be tenants of the plaintiff firm.

7. The trial Court non-suited the plaintiff because it came to the conclusion that the individual partners of the plaintiff firm should have sued, and not the firm itself, and that the notice also should have been sent on behalf of the individual partners, and not on behalf of the firm. It, therefore, decided against the plaintiff firm on the third and the fourth issues. The lower Appellate Court did likewise. Mr. Lahiri for the appellant firm urges that it is not necessary to remand the appeal to the lower Appellate Court for a finding on the 3rd and the 4th issues, for the appellant firm agrees to give up the claim of Rs. 50/- as compensation.

8. Mr. Barooah for the respondents finally contended that the plaintiff firm has admitted in its evidence that the premises were let for manufacturing purposes, and that the notice of 15 days was, therefore, bad in law. But the evidence led on behalf of the plaintiff firm also shows that the tenancy was a monthly tenancy. This evidence has not been rebutted by the defendants who, as we have said in the earlier part of our judgment, did not elect to lead any evidence.

9. The result is that there will be a decree in favour of the plaintiff firm for ejectment, as prayed for, and for undisputed arrears of rent amounting to Rs. 6/-.

10. The appeal is allowed with costs, throughout, against the respondents.

11. Mr. Barooah urges that the respondents be given 6 months' time to vacate the premises. We do not think we will be justified in allowing the respondents another six months to vacate the land. We, however, order that the decree for eviction in this case will not be executed for another two months, from to-day.

Deka, J.

12. I agree.


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