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Jamir Ahmad Vs. Madhawanand and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2340 of 1971
Judge
Reported inAIR1979All104
ActsTransfer of Property Act, 1882 - Sections 106; Uttar Pradesh (Temporary) Control Rent and Eviction Act, 1947
AppellantJamir Ahmad
RespondentMadhawanand and ors.
Appellant AdvocateK.C. Dhuliya, Adv.
Respondent AdvocateS.K. Tewari, Adv.
DispositionAppeal partly allowed
Excerpt:
property - ejectment and arrears of rent - section 106 of transfer of property act, 1882 - notice for ejectment and arrears of rent demanded - no evidence to show notice was on behalf of all lessors - notice not as required - does not terminate the lease - ejectment cannot be demanded - arrears of rent can be realized. - - act it described the two plaintiff-respondents as the owner-land lords of the shops in question and it was mentioned therein that the defendant-appellant was in arrears of rent for the last several months which he had failed to pay in spite of repeated demands......aggrieved by the decree directing his ejectment from the shops in dispute as also for recovery of arrears of rent and damages passed by the trial court and affirmed by the lower appellate court.2. the learned counsel for the appellant has challenged the decree of the courts below only in so far as it relates to the ejectment of the appellant. his submission in this regard is that the notice (ext 1) which was a combined notice demanding arrears of rent and terminating the tenancy of the defendant-appellant, was given only by two out of three lessors and could not, consequently, validly terminate his tenancy. as such, no decree for his ejectment from the shops could be passed.3. ext. 1 was sent by sri h.d. sharma, advocate, nainital to the defendant-appellant on instruction by madhava.....
Judgment:

V.K. Mehrotra, J.

1. This is a defendant's appeal, who is aggrieved by the decree directing his ejectment from the shops in dispute as also for recovery of arrears of rent and damages passed by the trial court and affirmed by the lower appellate court.

2. The learned counsel for the appellant has challenged the decree of the courts below only in so far as it relates to the ejectment of the appellant. His submission in this regard is that the notice (Ext 1) which was a combined notice demanding arrears of rent and terminating the tenancy of the defendant-appellant, was given only by two out of three lessors and could not, consequently, validly terminate his tenancy. As such, no decree for his ejectment from the shops could be passed.

3. Ext. 1 was sent by Sri H.D. Sharma, Advocate, Nainital to the defendant-appellant on instruction by Madhava Nand and Parma Nand Chhimwal (plaintiff-respondents Nos. 1 and 2). It was a notice under Section 3 of U. P. Act No. III of 1947 and Section 106 of the T. P. Act It described the two plaintiff-respondents as the owner-land lords of the shops in question and it was mentioned therein that the defendant-appellant was in arrears of rent for the last several months which he had failed to pay in spite of repeated demands. It also mentioned that the clients (namely, Madhwa Nand and Parmanand) did not want to continue the tenancy of the defendant any more and it was being terminated from the expiry of thirty days of the receipt of the notice.

4. The suit giving rise to the present appeal was filed after the notice aforesaid had been served and all the three respondents were arrayed as plaintiffs therein. In para 4 of the plaint, it was alleged that the plaintiffs through a registered A/D notice called upon the defendant to pay arrears of rent due from him and simultaneously terminated his tenancy under Section 106 of the T. P. Act. The contents of the plaint including those of the aforesaid paragraph were verified to be true on personal knowledge by the three plaintiff-respondents who signed the plaint. At the trial Parma Nand examined himself as the solitary witness on behalf of the plaintiffs. In his examination-in-chief, he stated that he was the owner of shops Nos. 126 and 127 and that he got the notice served demanding arrears of rent and terminating the tenancy of the defendant-appellant by his counsel. He also stated that he terminated the tenancy of the defendant-appellant through the notice (Ext. 1). In the cross-examination he reiterated that he was the owner of the shops since the year 1945 and that the defendant-appellant was his tenant for about 8 or 10 years. He did not, however, state a word about there being any other co-lessor with him or about his having instructed the counsel to send the notice under Section 106 on behalf of himself and other co-lessors. It is obvious, in these circumstances, that the notice (Ext. 1) neither purported to be nor was sent on behalf of all the co-owners. Such a notice cannot validly bring about the termination of the tenancy of the defendant-appellant. In Prayag Sdnar v. Motar Singh (AIR 1914 All 160) a learned single Judge of this Court took the view that one of the co-lessors could not by himself determine the lease. This view was also taken by a Division Bench of the Assam High Court in Arun Chandra Dowerah v. Panchu Modok (AIR 1957 Assam 70).

5. In Sri Ram v. Gopal Dass, (AIR 1955 NUC (All) 2699), a learned Single Judge of this Court deciding a case at Lucknow took the view that where the names of 8 out of 9 co-owners of a house were only mentioned in the notice sent by a lawyer under Section 106 of the T. P. Act determining the tenancy and the 9th co-owner joined in the array of plaintiffs, the notice terminating the tenancy was valid. In that case the 9th owner, apart from joining in the array of the plaintiffs also entered the witness box to prove that the notice sent by the lawyer was sent on his instruction and was on his behalf also. In Misri Lal v. Ram Gopal (1965 All WR (HC) 753: (1966 All LJ 35), S.S. Dhavan J. upheld the validity of a notice which was signed by one of the landlords whereas it should have been on behalf of both. In that case, the notice purported to be on behalf of both the landlords though signed by only one of them. Added to it was the circumstance that both the landlords had signed the plaint and there was a joint statement therein that they had served on the defendant a notice terminating his tenancy. To quote the words of the learned Judge:

'Where a notice of termination though signed by one of the joint owners, says that it was being sent on behalf of all of them, and subsequently, all of them state, in the plaint in the suit for ejectment, that they sent a notice of termination, it will be presumed that the statement in the notice is correct, and the onus will be on the tenant to prove that the notice was not on behalf of all the joint owners.'

6. In the present case, the notice does not purport to be on behalf of all the co-owners. Parmananad, one of the persons who instructed the counsel to serve the defendant-appellant with a notice under Section 106 of the T. P. Act alone has entered the witness box. He does not state a word about all the co-lessors having instruced the counsel to serve the notice. In these circumstances, it must be held that the notice was not served upon the defendant-appellant on behalf of all the three plaintiff-respondents. Consequently, it must also be held that the tenancy of the defendant-appellant was not validly terminated.

7. Learned counsel for the plaintiff-respondents has, however, urged that inasmuch as two plaintiff-respondents on whose behalf the notice was sent, were landlords within the meaning of that term in U. P. Act No. III of 1947, the notice of demand and termination of tenancy of their behalf alone was sufficient to validly terminate the tenancy of the appellant. As far as the demand for the arrears of rent is concerned, the submission could be valid. However, a notice under Section 106 of the T. P. Act has to be on behalf of the entire body of lessors. The validity of the notice in the instant case may be upheld only in so far as it relates to the demand of the arrears of rent but as far as it proceeds also to terminate the tenancy of the defendant-appellant, it cannot be sustained.

8. In the result, the appeal succeeds in part and the decree relating to ejectment of the defendant-appellant from the premises in question is set aside. The suit in regard to the relief of ejectment of the defendant-appellant from the shops in question is dismissed. In other respects, the decree of the courts below is upheld. The parties shall, however, bear, their own costs.


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