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E. Keshavayya Vs. R. Narasima Prabhu and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 2542 of 1974
Judge
Reported inAIR1976Kant41; 1975(2)KarLJ232
ActsTransfer of Property Act, 1982 - Sections 116
AppellantE. Keshavayya
RespondentR. Narasima Prabhu and ors.
Appellant AdvocatePadubidri Raghavendra Rao, Adv.
Respondent AdvocateTukaram S. Pai, Adv.
Excerpt:
- karnataka land reforms act, 1961.[k.a. no. 10/1962]. section 48a: [h.v.g. ramesh, j] grant of occupancy right - rejection of form no.7 finding of the land tribunal that the land is not a tenanted land petitioner cultivating the land originally as a tenant and thereafter by virtue of the registered sale deed as owner of the land - as on 1.3.1974 or immediately prior to it the land was a tenanted land, vested with the government held, even if the sale in favour of the petitioners husband is held to be invalid, originally it was tenanted land and the land was vested with the government. the land tribunal has to consider the application for grant of occupancy rights to the petitioner as he was holding the land as a tenant prior to and as on 1.3.1974. .....did not ask the tenant to vacate the premises. he was allowed to remain in possession as a tenant holding over. on 15th october, 1965 the tenant agreed to pay rent at the rate of rs. 125/- per year. accordingly, an endorsement was made on the lease deed ext. p-3. ever since then he was paying that rate of rent. on 11th may, 1969 the landlord issued a notice to the tenant asking him to surrender vacant possession of the premises after six months. the notice was served on the tenant on 19th may, 1969. the six months period allowed to the tenant came to an end on 19th november, 1969. the tenant refused to surrender the premises. the landlord, therefore, brought an action for eviction under the provisions of the karnataka rent control act. 1961 stating that the premises are.....
Judgment:
ORDER

1. This revision petition is under section 50 of the Karnataka Rent Control Act, 1961. It is essentially concerned with the validity of the notice to quit issued by the landlord to his tenant. From the facts I select those necessary for my decision.

2. By Ext. P-3 the lease deed dated 15th October, 1948, the premises belonging to the petitioner ('the landlord') were leased to respondent 1 ('the tenant') for a period of 10 years on an annual rent at Rs. 100/- payable by the 15th of October every year. It was agreed there under that the tenant could use the premises for the purpose of his timber trade with liberty to put up any temporary shed or building in connection with that trade; but after the period of lease he should remove the construction at his own cost and surrender the vacant premises. The lease contained a stipulation regarding the notice. It stated that if the landlord wanted the premises after 5 years from the date of the lease for the purpose of constructing a house for his own use. he could ask for the premises, after giving the tenant six months' notice. That occasion, however, did not arise for the landlord. The lease, therefore, continued for a fall term of 10 years and it came to an end on 15th October, 1958. The landlord did not ask the tenant to vacate the premises. He was allowed to remain in possession as a tenant holding over. On 15th October, 1965 the tenant agreed to pay rent at the rate of Rs. 125/- per year. Accordingly, an endorsement was made on the lease deed Ext. P-3. Ever since then he was paying that rate of rent. On 11th May, 1969 the landlord issued a notice to the tenant asking him to surrender vacant possession of the premises after six months. The notice was served on the tenant on 19th May, 1969. The six months period allowed to the tenant came to an end on 19th November, 1969. The tenant refused to surrender the premises. The landlord, therefore, brought an action for eviction under the provisions of the Karnataka Rent Control Act. 1961 stating that the premises are reasonably and bona fide required by him for his personal use and occupation. The Munsiff's Court before whom the action was brought, held in favour of the landlord and made an order of eviction against the tenant.

3. Upon appeal preferred by the tenant, the learned District Judge reversed the order of eviction. He did not consider the merits of the appeal. He rested his conclusion only on the validity of the quit notice. He held that the notice issued on 11th May, 1969 asking the tenant to surrender possession of the premises within six months thereafter did not end with the year of tenancy and therefore was invalid under Section 106 of the T. P. Act.

4. The correctness and validity of that finding is assailed in this revision petition.

5. The question before me is not whether the quit notice was in accordance with the provisions of Section 106 of the T. P. Act. Mr. Raghavendra Rao rightly did not canvass that question, as evidently the notice did not determine the tenancy at the end of the year of tenancy. He confined his arguments to prove that the notice was in accordance with the terms of the lease.

6. Let me now examine the question. The answer to the question, to my mind, is two fold. Firstly, the notice is not in accordance with the terms of the lease. The lease, as I have said in the beginning, provided that if the landlord wanted possession of the premises after 5 years from the date of the lease, he could call upon the tenant to surrender the premises after the notice of six months. The lease did not provide that such a notice was a must, even after the expiry of the period of lease, that is, after the period of 10 years. The intention of the parties, as it appears to me, was that the tenant could occupy the premises for the first five years without interference from the landlord and if thereafter the landlord wanted the premises for the specific purpose of constructing a house of his own, he could demand possession by giving the tenant a notice of six months at any time after the period of 5 years from the commencement of the lease. The option thus reserved, was not exercised by the landlord. The landlord did not even ask the tenant to surrender the premises immediately after the expiry of the lease. In these circumstances, it cannot be held that the notice issued by the landlord determining the tenancy was a notice in accordance with the terms of the lease.

7. Now, I come to the other obstacle against the landlord. Assuming that the notice was in accordance with the terms of the lease, I must say that the stipulation as to the notice could not continue to be a condition governing the tenant holding over. The tenant was a contractual tenant under the terms of the written lease. After the expiry of the lease, the tenant held over under Section 116 of the Transfer of Property Act subject to the condition that he should pay an enhanced rent of Rs. 125/- per year from 1965 onwards. But the stipulation as to the notice thereunder would not continue to be a term of holding over. This was the view taken by the Calcutta High Court in Dasarathi Kumar v. Sarat Chandra Ghose : AIR1934Cal135 . The Bench of the Calcutta High Court relying upon the earlier decision of the same Court in Trolakya Nath Roy v. Sarat Chandra, ((1905) ILR 32 Cal 123) observed that a stipulation in the original lease that the lessee should give up possession without notice, could not be imported into the new tenancy created by holding over. The principle of that decision was followed by the Madras High Court in Bapayya v. Venkataratnam : AIR1953Mad884 , where in Venkatarama Aiyar, J., speaking for the Bench observed that having regard to the authorities it must be held that the terms as to notice contained in an expired lease should not be held to be terms of the lease arising by holding over under Section 116 of the T. P. Act.

I am in respectful agreement with the above view and therefore, it is unnecessary to discuss the question in detail further. The matter is really governed by Section 116 of the T. P. Act. It provides :

'116. If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or underlessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106.'

The words 'in the absence to an agreement to the contrary' in Section 116 must mean an agreement as to the terms of the holding over renewed from year to year, or month to month according to the purpose for which the property is leased as specified in Section 106. (See Dasarathi Kumar v. Sarat Chandra Ghose : AIR1934Cal135 ) and the liability to give notice incorporated in the written lease, cannot be a term of holding over. The necessary consequence would be that the notice issued by the landlord was invalid. This revision could therefore, be dismissed on the above line of reasoning, if not on the view taken by the learned District Judge.

8. Before parting with the case, I must make it clear that I express no opinion as to whether the tenant was holding over month to month or year to year after the expiry of the original lease.

9. In the result, the revision petition fails and is dismissed, but I make no order as to costs.

10. Petition dismissed.


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