1. This is a tenant's petition under S. 26 of the Hyderabad Houses (Rent, Eviction and lease) Control Act, 1954. It is directed against an order in appeal made by the learned District Judge Raichur, in C M A No. 1/5 of 1965, on 30-10-1965. The said appeal had been preferred by the Respondent-landlord against an order of the Asst. Commissioner and Rent Controller, Koppal, in File No. 8/RC/58-59, made on 25-11-1964.
2. The petition for eviction was filed by the landlord on the ground of arrears of rent. The tenant, the petitioner before this Court, among other grounds, had raised the objection that there was no tenancy and, in fact, he was the owner of the premises in question. He has claimed ownership on the ground that be had purchased the property from the mother of the petitioner and that owing to subsequent differences an understanding was arrived at that he should relinquish his rights in favour of the vendor on her repaying him a sum of Rs. 300. Since this sum was not paid, he continued to be in possession. This is denied by the original petitioner. It is unnecessary to set out the other facts and circumstances alleged by the parties as they are not necessary for the purpose of disposal of the present petition.
3. The Controller dismissed the petition on the ground that tenancy alleged by the landlord had not been proved. In appeal, the learned District Judge, Raichur, came to the conclusion that the tenancy had been proved and consequently directed eviction by his order which is impugned herein. This finding of fact is not assailed before this Court by the petitioner.
4. Sri S. R. Kagalkar, the learned Counsel of the petitioner, urged only one contention relating to the right of the landlord to evict him pursuant to the provisions of the concerned Rent Control Act. He submitted that the petition for eviction would not be maintainable in the absence of a proper notice to quit under S. 106 of the Transfer of Property Act, thus determining the tenancy, in accordance with law. In support of his submission he relied on two decisions of this Court reported in Md. Abdul Rahaman v. Md. Osman Ali Saheb, 1964-2 Mys LJ 465 and Bipathumma v. Mariam Bibi, 1966-1 Mys LJ 162.
5. Before adverting to these decisions, one relevant fact has to be noticed. It is not disputed that no such notice determining the tenancy had been issued before lodging the petition for eviction. Sri V. H. Ron, appearing on behalf of the present respondent, submitted that the tenant could not be permitted to raise this objection at this highly belated stage, not having made it a ground in the objections filed by him before the Controller. But this objection is met by Sri Kagalkar by a reference to the case reported in 1964-2 Mys LJ 465. In that case also a similar objection was allowed to be taken by this Court for the first time in revision. Since it goes to the very root of the maintainability of the petition for eviction as his very right to obtain possession depends on the termination of tenancy in accordance with law, and in the facts and circumstances of the case, it may not be just or proper to prevent the petitioner from urging this ground. Hence, the argument of Sri Ron in this behalf cannot be accepted.
6. In Mohamed Abdul Rahman's case, 1964-2 Mys LJ 465 this Court was directly concerned with a case arising under the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954. It was held therein that an application for eviction under S. 10(1) of the Hyderabad Act could not be maintained before the tenancy has been determined by a notice to quit under S. 111(h) of the T. P. Act. The case of Bipathumma, 1966-1 Mys LJ 162 has reference to a case of eviction under S. 21 of the Mysore Rent Control Act. Here also it is held that before a landlord could initiate proceedings under S. 21 of the Act, it is necessary that the lease should have been determined either by notice or by other mode appropriate to the nature of the lease. Hence, in my opinion, these decisions clearly support the contention urged by Sri Kagalkar.
7. But, Sri V. H. Ron urged two contentions for consideration: (1) That the tenancy in question was in the nature of statutory tenancy and therefore no notice was necessary; (2) That, in any event, the tenant had set up title in himself and consequently has denied the title of the landlord and as such the lease stood determined by forfeiture under S. 111(g) of the T. P. Act and therefore the issue of notice under S. 106 of the T. P. Act would become unnecessary.
8. In support of the first contention he relied on a decision of the Supreme Court in Gangadutt Murarka v. Kartik Chandra Das, : 3SCR813 of the said decision their Lordships observe thus:
'It is however, well settled that where a contractual tenancy to which the rent control legislation applies has expired by efflux of time or by determination by notice to quit and the tenant continues in possession of the premises, acceptance of rent from the tenant by the landlord after the expiration or determination of the contractual tenancy will not afford ground for holding that the landlord has assented to a new contractual tenancy.'
Again at page 1070, it is observed as follows:
'Of course, there is no prohibition against a landlord entering into a fresh contract of tenancy with a tenant whose right of occupation is determined and who remains in occupation by virtue of the statutory immunity. Apart from an express contract, conduct of the parties may undoubtedly justify an inference that after determination of the contractual tenancy, the landlord had entered into a fresh contract with the tenant, but whether the conduct justifies such an inference must always depend upon the facts of each case.
Occupation of premises by a tenant whose tenancy is determined is by virtue of the protection granted by the statute and not because of any right arising from the contract which is determined. The statute protects his possession so long as the conditions which justify a lessor in obtaining an order of eviction against him do not exist. Once the prohibition against the exercise of jurisdiction by the Court is removed, the right to obtain possession by the lessor under the ordinary law springs into action and the exercise of the lessor's right to evict the tenant will not, unless the statute provides otherwise, be conditioned.'
9. This aspect of determination of tenancy and continuance of tenancy by virtue of statutory protection has not, it would seem, been directly dealt with in the two decisions of this Court relied on by Sri Kagalkar and referred to earlier. But the question still remains to be determined whether the present case falls under one or the other category referred to in the above decision of the Supreme Court. The case of the landlord in the instant case is that there was a month to month tenancy and the present petitioner was a tenant of the premises belonging to him. Hence, in my view, such a plea amounts to a case of subsisting contractual tenancy requiring a notice to quit to be issued under S. 106 of the T. P. Act. Thus, I am clearly of the opinion that this decision of the Supreme Court cannot be of much assistance to the respondent. In this context it may be useful to refer to two other decisions of the Supreme Court, touching the question of notice to quit for the purpose of determination of a lease.
10. In Punjalal Bhagwandin v. Bhagwatprasad Prabhuprasad, : 3SCR312 it is observed thus:
'... A tenant stood in no need of protection against eviction by the landlord so long as he had the necessary protection under the terms of the contract between him and his landlord. He could not be evicted till his tenancy was determined according to law and therefore there was no necessity for providing any further protection in the Act against his eviction so long as his tenancy continued to exist under the contract.'
Again in page 9 of the same page the following passage occurs:
'... Ordinarily, the landlord will have a right to recover possession from the tenant when the tenancy had determined. The provisions of this section therefore will operate against the landlord after the determination of the tenancy by any of the modes referred to in S. 111 of the Transfer of Property Act. What this section of the Act provides is that even after the determination of the tenancy, a landlord will not be entitled to recover possession, though a right to recover possession gets vested in him, so long as the tenant complies with what he is required to do by this section. It is this extra protection given by this section which will be useful to the tenant after his tenancy has determined....'
Further on in the same paragraph it is observed thus:
'We are, therefore of opinion that where a tenant is in possession under a lease from the landlord, he is not to be evicted for a cause which would give rise to a suit for recovery of possession under S. 12 if his tenancy has not been determined already. It follows that whenever a tenant acts in a way which would remove the bar on the landlord's right to evict him, it is necessary for the landlord to serve him with a notice determining his tenancy and also serve him with a notice under sub-section (2) of Section 12 of the Act.'
In Mangilal v. Suganchand, : 5SCR239 it is observed thus:
'...... The requirement of S. 106 of the Transfer of Property Act is that a lease from month to month can be terminated only after giving fifteen days' notice expiring with the end of a month of the tenancy either by the landlord to the tenant or by the tenant to the landlord. Such a notice is essential for bringing to an end the relationship of landlord and tenant. Unless the relationship is validly terminated the landlord does not get the right to obtain possession of the premises by evicting the tenant. S. 106 of the Transfer of Property Act does not provide for the satisfaction of any additional requirements....'
11. In view of the above enunciation of the position by the Supreme Court on the question of requirement of notice under S. 106 of the T.P. Act for the purpose of effectually terminating a tenancy for a landlord to earn the right to obtain possession of a leased premises, the contention of Sri Ron deserves to be rejected. As already observed the very case of landlord is based on a contractual tenancy and as such required to be determined by a notice to quit issued in accordance with the provisions of Section 106 of the T. P. Act.
12. The second contention of Sri Ron was that there was a denial of the title of the landlord by the tenant thus attracting the provisions of S. 111(g) of the T. P. Act, resulting in a termination of tenancy by operation of law. This section no doubt lays down, among other modes of determination of leases, that a lease of immovable property determines by forfeiture in case the lessee renounces his character as such by setting up title in a third person or by claiming title in himself. On a bare perusal of the section it will be seen that it is only one of two conditions prescribed therein for a forfeiture to be effective. The other condition clearly related to notice. It may be observed that under S. 111 of the T. P. Act the requirement regarding notice has not been imposed in case of conditions for determination of lease specified in clauses (a) to (g) of that section. It would therefore, be clear that such a conduct of claiming title in himself on the part of the lessee would not ipso facto put an end to the lease thus enabling the landlord to obtain possession. On the other hand, it would confer a right on the lessor, if he so elects, to determine the lease by a notice as required by S. 111(g) of the T. P. Act. Indeed, the section expressly lays this down as a condition for the forfeiture to be effective. Hence this contention of Sri V. H. Ron should also fail No other question was raised and argued by either party.
13. In the result, the petition succeeds. The original application for eviction, therefore, stands dismissed.
14. No costs.
15. Petition allowed.