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Ghasi Ram and ors. Vs. Jagat NaraIn and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 393 of 1968
Judge
Reported inAIR1976All221
ActsTransfer of Property Act, 1882 - Sections 106 and 111
AppellantGhasi Ram and ors.
RespondentJagat NaraIn and ors.
Appellant AdvocateB.D. Srivastava, Adv.
Respondent AdvocateD.K. Trivedi, Adv.
DispositionAppeal partly allowed
Excerpt:
property - tenancy - sections 106 and 111(h) of transfer of property act, 1882 - notice for eviction only in respect of part of property leased and not whole property leased - splitting of tenancy not permissible by unilateral act of tenant - held, notice not valid and tenant can not be asked to vacate premises leased. - - act was bad because it was not given to the lessee, who according to them was the partnership firm and not the partners, and also because it was not in respect of the entire premises that were the subject-matter of the tenancy. as the notice to terminate the tenancy was bad the decree for ejectment could not have been passed......which the landlord admitted to be in the tenancy of the defendants; it cannot be deemed to be a notice in respect of the portion of the building which according to the plaintiffs was occupied by the defendants not as tenants but as trespassers. both the courts below have recorded the finding that the entire building and not only a portion thereof was in the tenancy of the defendants. they have found that the defendants were the tenants of the entire building and not trespassers in any portion thereof.6. learned counsel for the respondents contends that even though the notice may terminate the tenancy of a portion of a property leased, it would be sufficient to determine the relationship if the tenant is required to vacate the entire premises even though he is not admitted to be the.....
Judgment:

Hari Sarup, J.

1. This is a defendants' appeal arising out of a suit for ejectment, arrears of rent and damages for use and occupation. Plaintiffs instituted the suit on the allegation that the defendants were tenants of a portion of the building and were trespassers in respect of the remaining portion, and that they were liable to be ejected from the portion they were occupying as trespassers and also from the portion they were occupying as tenants because they had defaulted in paying arrears of rent and had made material alterations in the building which had affected adversely the utility of the building.

2. The case of defendants was that they were not the tenants of a portion of the building but of the entire building and the plea that they were trespassers was not a correct plea. The defendants also contended that the notice under Section 106 of the T. P. Act was bad because it was not given to the lessee, who according to them was the partnership firm and not the partners, and also because it was not in respect of the entire premises that were the subject-matter of the tenancy. It was also their case that they had committed no default in payment of rent and had made no material alterations as to make them liable to ejectment.

3. The trial court held that the notice issued to the defendants was a valid notice and the bar of Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act was not operative as the defendants were defaulters in payment of rent and had made unauthorised material alterations. On these findings the trial court decreed the suit for ejectment and also for recovery of arrears of rent of Rs. 3300/- and damages for use and occupation upto the date of the institution of the suit.

4. Defendants filed an appeal against the trial court's decree and the plaintiffs filed cross-objection claiming compensation for the period during which the defendants may continue to remain In possession. The lower appellate court agreed with the findings given by the trial court and dismissed the appeal. It allowed the cross-objection and directed the compensation to be paid till the date of ejectment. The defendants have now come to this court challenging the decree of the courts below.

5. Learned counsel for the appellants has challenged the correctness of all the findings recorded by the courts below. It is, however, not necessary to go into the merits of all the objections as the notice under Section 106 of the Transfer ' of Property Act itself does not appear to be valid. In the notice given by the landlord he had mentioned that a portion of the building was in the tenancy of the defendants and the remaining portion was in their occupation as trespassers. Descriptions of portions were also given in the notice. In the end, while describing the property it was mentioned that only the specified portion of the building was in the tenancy. The notice does not purport to terminate the tenancy in respect of the entire building. The notice is in respect of the portion of the building which the landlord admitted to be In the tenancy of the defendants; it cannot be deemed to be a notice in respect of the portion of the building which according to the plaintiffs was occupied by the defendants not as tenants but as trespassers. Both the courts below have recorded the finding that the entire building and not only a portion thereof was in the tenancy of the defendants. They have found that the defendants were the tenants of the entire building and not trespassers in any portion thereof.

6. Learned counsel for the respondents contends that even though the notice may terminate the tenancy of a portion of a property leased, it would be sufficient to determine the relationship if the tenant is required to vacate the entire premises even though he is not admitted to be the tenant thereof. No authority has been cited in respect of this contention. The contention is contrary to the plain wordings of Section 111(h) of the T. P. Act. Learned counsel relied, on the case of Secy. of State v. Madhu Sudan : AIR1933Cal260 . That case is based on entirely different facts. The question there was about the status of the person holding over the property after the tenancy had come to an end and the occupation was being claimed by him by virtue of Section 116 of the Transfer of Property Act. The observation on which the learned counsel relies is-

'The giver of a notice is not bound to admit the person to whom it is given as a tenant, a notice is given notwithstanding that the addressee is described therein as a trespasser'

That was a case in which the question was about the legal status of a person qua the entire property and not & portion of the property leased. In the present case the question is about the interpretation of the words 'property leased' in Section 111(h) of the T. P. Act This was not the question in the case of Secy. of State v, Madhu Sudan.

7. A tenancy can be terminated in any one of the manners prescribed in Section 111 of the T. P. Act, Clause (h) of Section 111 runs as under.

'A lease of immovable property determines-

(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.'

The relevant words are 'porperty leased', Notice must be in respect of the property leased. On the findings reached by the courts below the notice is not in respect of the 'property leased' but in respect of only a portion of the 'property leased'. Splitting up of tenancy is not permissible by the unilateral act of the landlord; tenancy can be terminated only in its entirety and not partially. Unless the notice under Section 106 of the T. P, Act intends and purports to terminate the entire tenancy, it cannot be a valid notice and the tenant cannot be asked to vacate the premises leased. AS the notice to terminate the tenancy was bad the decree for ejectment could not have been passed.

8. So far as the decree for money is concerned, the landlord is certainly entitled to get the rent; the decree passed by the trial court and confirmed by the lower appellate court for arrears of rent is accordingly confirmed. The decree for damages or compensation for use and occupation cannot be sustained as the defendants' tenancy has not come to an end.

9. An interim order was passed by this Court staying the execution of the decree on condition that the defendants paid the entire decretal amount and continued to pay the monthly rent. Learned counsel for the appellants has made a statement at the bar that the entire amount has been deposited. If that is so, it will be paid over to the plaintiff-landlord.

10. In the result the appeal is allowed in part. The decree for ejectment and also for damages or compensation for use and occupation is set aside and the suit in respect thereof is dismissed. The decree for arrears of rent as claimed by the plaintiff is maintained. Parties shall bear their own costs.


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