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Md. Ismail Khan Vs. Md. Mahboob Ali - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 693 of 1975
Judge
Reported inAIR1977AP363
ActsTransfer of Property Act, 1882 - Sections 106; Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 - Sections 2(1)
AppellantMd. Ismail Khan
RespondentMd. Mahboob Ali
Appellant AdvocateM.B. Rama Sarma, Adv.
Respondent AdvocateP.M. Gopal Rao and ;P. Satyanarayana Reddy, Advs.
Excerpt:
.....suit for eviction and mesne profits - defendant pleaded that notice was defective - notice to quit not defective as lease was from month to month - held, suit decreed in favour of plaintiff. - - sarma, the learned counsel for the defendant- appellants contends that the lease in question is an agricultural lease and that the notice giving only 15 days' time is therefore bad. the question whether dairy farming is agricultural or not, does not at all arise in this case, in so far as section 2(1)(a) of the act clearly provides that agriculture includes dairy farming. a-2) dated 2-3-73 demanding the defendant to vacate the premises by the end of 31-3-1973 is valid and whether the suit for eviction is bad in so far as the notice did not comply with section 106 of the transfer of..........to the first question, sri sarma contends that the defendant took the land on lease only for dairy farming, that dairy farming is agriculture and that therefore the lease is agricultural in nature. in support of his submission, he relies on the definitions of 'agriculture' and 'agricultural land', in section 2(1)(a) and section 2(1)(c) of the andhra pradesh (telangana area) tenancy and agricultural lands act, 1950, which will hereinafter be referred to as the tenancy act. 'agriculture' as defined in section 2(1)(a) of the tenancy act includes dairy framing. 'agricultural land' as defined in section 2(1)(c) of the tenancy act means land which is used or is capable of being used for agriculture including the sites of dwelling houses occupied by agriculturists, agricultural labourers.....
Judgment:

1. This Second Appeal is directed against the judgment and decree of the learned Additional Chief Judge, City Civil Court, Hyderabad in A. S. No. 20 of 75 on the file of his Court, confirming the judgment and decree of the learned IV Assistant Judge, City Civil Court, Hyderabad in O. S. 1105 of 73 on the file of his Court. The appellants is the defendant against whom a decree was passed for eviction from the suit land and for mesne profits.

2. The dispute between the parties relates to a piece of land measuring about 151 sq. yards and situate within the municipal limits of Hyderabad. The land is appurtenant to the house bearing No. 17-5-114. The land belongs to the plaintiff who inducted the defendant into the possession of the same on 1-9-1965 as a tenant on a monthly rent of Rs. 10. The plaintiff gave a notice dated 2-3-73 to the defendant determining the tenancy by 31-3-73 and later instituted the suit for eviction and mesne profits. The defendant pleaded that the lease was permanent and thus not liable to be determined. The plea of the defendant was disbelieved by the trial Court and the suit accordingly was decreed in plaintiff's favour. In the first Appellate Court the defendant gave up the plea of permanent tenancy but pleaded that the notice issued under Section 106 of the Transfer of Property Act is defective since the tenancy is not one for month to month. The case of the defendant is that the lease is an agricultural lease for conducting dairy farm business and that therefore the notice ought to have given six months' time for vacation from the land. The first Appellate Court rejected the plea and held that the tenancy between the plaintiff and the defendant was only a monthly tenancy and that the notice to quit was not defective.

3. Sri M. B. R. Sarma, the learned counsel for the defendant- appellants contends that the lease in question is an agricultural lease and that the notice giving only 15 days' time is therefore bad. Sri Gopala Rao, the learned counsel for the plaintiff- respondent on the other hand contends that the lease in question is a monthly one and that at any rate the notice to quit issued in the instant case is valid.

4. The two questions that arise for determination in this appeal therefore are:

(1) Whether the lease of the land between the plaintiff and the defendant is an agricultural lease ?

(2) If so, is the notice to quit issued under Ex. A-2 valid

5. With regard to the first question, Sri Sarma contends that the defendant took the land on lease only for dairy farming, that dairy farming is agriculture and that therefore the lease is agricultural in nature. In support of his submission, he relies on the definitions of 'Agriculture' and 'Agricultural land', in Section 2(1)(a) and Section 2(1)(c) of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950, which will hereinafter be referred to as the Tenancy Act. 'Agriculture' as defined in Section 2(1)(a) of the Tenancy Act includes dairy framing. 'Agricultural land' as defined in Section 2(1)(c) of the Tenancy Act means land which is used or is capable of being used for agriculture including the sites of dwelling houses occupied by agriculturists, agricultural labourers or Artisans and land appurtenant to such dwelling houses. According to Sri Sarma, the defendant took the land on lease for dairy farming. Sri Gopala Rao on the other hand contends that the defendant took a small shed and vacant site on monthly lease and was carrying on milk business at that place by selling milk to his customers.

6. The admitted lease between the parties is not evidenced by any document containing any recitals in regard to the purpose of the lease. As D. W. 1 the defendant stated that the lease was negotiated through D. W. 2, that he took the suit plot on a monthly rent of Rs. 10 and that after spending about Rs. 4,000 to Rs. 5,000 he has been using the plot for dairy farming. D. W. 2, stated that even before the lease was finalised, he informed the plaintiff that the suit plot was being taken by the defendant for running a dairy farm. Ex. A-7 is a true copy of the written statement filed by the defendant in O. S. 753 of 68 on the file of the Chief Judge, City Civil Court, Hyderabad. In this written statement, dated 25-11-68 the defendant stated: 'The open land was rented out for the purpose of carrying milk business and keeping the buffaloes there. In Ex. A-8 dated 31-7-68 which is a reply notice given on behalf of the defendant to the plaintiff it was stated: 'As a matter of fact only the open land was leased out for keeping buffaloes and running milk business.' In Ex. A-9 dated 26-12-68 which is a counter filed by the defendant in Case No. 455/EV/1968 in the Court of the Rent Controller, Hyderabad it was again stated as follows: 'The open land was taken by the respondent for carrying his milk business and for keeping the buffaloes there'. On an examination of the evidence, the lower Appellate Court found that the defendant was keeping about 30 buffaloes in the suit plot and was selling milk at that place to his customers. In the light of the recitals in Exs. A-7, A-8 and A-9 and the finding of the lower Appellate Court there can be no doubt whatever that the defendant took the premises on lease for the purpose of carrying on his milk business and for tethering his buffaloes in the premises. The question is whether such keeping of the buffaloes on the premises and carrying on milk business at the premises constitutes dairy farming ?

7. Drawing the attention of the Court to the observations of their Lordships of the Supreme Court in I.-T Commissioner v. Benoy Kumar, : [1957]32ITR466(SC) , Sri Gopala Rao, the learned counsel for the respondent contends that using a land for agriculture should be understood as using the land for producing some king of product or the other from out of the land and that the mere fact that an activity has some connection with or in some way defendant on land is not sufficient to construe that the land is used for agriculture. In Para 99 (Page 789) of the judgment Bhagawati, J., speaking for the Court pointed out as follows:

'The term 'Agriculture' cannot be dissociated from the primary significance thereof which is that of cultivation of the land and even though it can be extended in the manner we have stated before both in regard to the process of agriculture and the products which are raised upon the land, there is no 'warrant at all for extending it to all activities which have relation to the land or the in any way connected with the land. The use of the word agriculture in regard to such activities would certainly be a distortion of the term.'

8. In the case relied on the question was whether the income derived from the sale of Sal and Piyasal trees in the assessee's forest was agricultural income within the meaning of Section 2(1) of the Income-tax Act. The question whether dairy farming is agricultural or not, does not at all arise in this case, in so far as Section 2(1)(a) of the Act clearly provides that agriculture includes dairy farming.

9. Sri Gopala Rao contends that the acts of merely keeping some she-buffaloes on the site, milking them daily and then selling the milk do not constitute dairy farming. What exactly is the dairy farming is not defined in the Act. The ordinary dictionary meaning of 'dairy' as found in the Concise Oxford Dictionary is, 'room or building for keeping milk and cream and making butter etc. the milk department is farming; shop for milk etc., cows of a farm.' In Stroud's Judicial Dictionary, IV Edition, it is stated that a 'dairyman' includes any cowkeeper, purveyor of milk or occupier of a dairy. In the Reader's Digest Great Encyclopedia Dictionary. Volume. 1, the meaning of 'Dairy' is given as the same in the Concise Oxford Dictionary. The meaning of a 'dairy farm' is given as 'farm producing chiefly milk, butter etc.' In the Corpus Juris Secundum it is stated as follows:

'Dairy: The place, room, or house where milk is kept and converted into butter or cheese; the department of farming or of a farm that is concerned with the production of milk, butter, and cheese; any farm, farmhouse, cowshed, milk store, milk shop, or other place from which milk is supplied, or in which milk is kept for purposes of sale; an establishment for the sale or distribution of milk or milk products.'

It is further stated that 'dairying' is the occupation or business of dairy-farmer or dairyman. It has been held to be included in 'agriculture', in the broad use of that term. In Halsbury's Laws of England. Third Edition, Volume. 17, it was mentioned as follows at page 530:

'A dairy farm is any premises (being a dairy) on which milk is produced from cows, but does not include any part of any such premises on which milk is manufactured into other products, unless the milk produced on the premises forms a substantial part of the milk so manufactured ........................................................................ A dairy farmer is a dairyman who produces milk from cows.'

Under the circumstances, there can be little doubt that the defendant is carrying on dairy farming on the suit premises and that the suit premises was therefore leased out to the defendant for agricultural purpose.

10. The next question is whether the notice to quit (Ex. A-2) dated 2-3-73 demanding the defendant to vacate the premises by the end of 31-3-1973 is valid and whether the suit for eviction is bad in so far as the notice did not comply with Section 106 of the Transfer of Property Act.

11. Section 106 of the T. P. Act to the extent it is relevant reads as follows:

'In the absence of a contract or local law or usage to the contrary, a lease of immoveable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy; and a lease of immoveable property for any other purpose 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 a month of the tenancy.'

The very opening words of the Section make it abundantly clear that if there is a contract to the contrary, an agricultural lease need not be deemed to be a lease from year to year. Agricultural lease will be deemed to be leases from year to year only if there is no contract or local law or usage to the contrary. The presumption in regard to the duration of the leases contained in Section 106 of the Transfer of Property Act arises only in cases where the parties did not specify the duration of the lease by a contract or if there is no local law or usage to the contrary. In all the previous proceedings between the parties including the suit from which this Second Appeal arises, the defendant was simply pleading a permanent lease in his favour and did not state at any stage that it was an yearly lease. For the first time before the first Appellate Court he raised the plea of the lease being an agricultural lease. Even there he did not state that it was a lease from year to year. What all he pleaded before the first Appellate Court is that the lease is for an agricultural purpose and so he should have been given six months' time under the notice to quit. The lease between the plaintiff and the defendant is not reduced into writing. The rule of construction embodied in Section 106 of the T. P. Act applies not only to written lease of uncertain duration but also to oral leases or even leases implied by law. Though the lease has not been reduced into writing, it is admitted by both the plaintiff and the defendant that under the terms of the lease the rent was payable monthly and not annually. The stipulation that rent should be paid monthly, in the absence of an express understanding between the parties in regard to the duration of the lease, raises a presumption that the parties agreed to the tenancy being from month to month. In Ram Kumar Das v. Jagdish Chandra Deo, : [1952]1SCR269 the Supreme Court pointed out as follows at page. 819 (of SCJ) : (at page. 27 of AIR):

'It is not disputed that the contract to the contrary, as contemplated by Section 106 of the T. P. Act., need not be an express contract; it may be implied, but it certainly should be a valid contract. If it is no contract in law, the Section will be operative and regulate the duration of the lease. It has no doubt been recognised in several cases that the mode in which a rent is expressed to be payable affords a presumption that the tenancy is of a character corresponding thereto. Consequently, when the rent reserved is an annual rent, the presumption would arise that the tenancy was an annual tenancy unless there is something to rebut the presumption.'

Quoting the above cited observations of the Supreme Court, a Division Bench of the Assam High Court held in Jewansing v. Mandalal, AIR 1955 Assam 102 that the mode in which rent is expressly payable affords a presumption that the tenancy is of a character corresponding to the nature of the monthly or the annual payment. Under the circumstances, I have no hesitation to find that even though the lease between the plaintiff and the defendant is for the agricultural purpose of dairy farming, it was only a lease from month to month and not from year to year. The notice to quit issued by the plaintiff, which is otherwise valid, cannot be deemed to be defective on the ground of its not giving six months' time to the defendant. The suit instituted by the plaintiff for eviction and mesne profits is therefore not bad for want of a valid notice to quit. The decree passed by the trial Court in plaintiffs favour has been rightly confirmed by the Appellate Court. This Second Appeal is therefore dismissed, but under the circumstances, without costs.

12. Appeal dismissed.


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