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Hira Lal and ors. Vs. Shiv Shankar Lal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1491 of 1970
Judge
Reported inAIR1980All401
ActsTransfer of Property Act, 1882 - Sections 106, 114 and 114A; Uttar Pradesh Urban Area Zamindari Abolition & Land Reforms Act, 1964
AppellantHira Lal and ors.
RespondentShiv Shankar Lal
Appellant AdvocateB. Dayal, Adv.
Respondent AdvocateP.N. Pandey and ;P.D. Kaushik, Advs.
DispositionAppeal dismissed
Excerpt:
.....also shows that these provisions would apply only in a case where the lease was determined by forfeiture on breach of an express term of the lease and for this it is necessary that the lessor himself should serve the notice in writing specifying the particular breach complained of and if the breach was capable of remedy, requires the lessee to remedy the breach and after the failure of the lessee within reasonable time of the service of the notice for remedying the breach, then only the suit for ejectment by the lessor could lie. that was an additional reason for holding that at the worst the assertion was not unequivocal as to entail the forfeiture of the tenancy. 7 and 18 of the written statement, as i have already observed above, the defendant has very clearly stated that the..........property, be deemed to be an assertion unequivocal in nature of absolute ownership sufficient to entitle a forfeiture of a permanent tenancy of this nature. the reference to the consent of the government to such an enjoyment would be wholly inappropriate if the assertions were understood to be as an absolute owner in derogation of the rights of the government as landlord. the consent would have relevance only if the government had any interest in the property. that was an additional reason for holding that at the worst the assertion was not unequivocal as to entail the forfeiture of the tenancy. therefore, the terms of the lease in the case which was being considered by the supreme court were quite different trom the assertions with which we have to deal with in this case. 7. in paras. 7.....
Judgment:

N.N. Mithal, J.

1. This is a defendant's second appeal in a suit for possession over an open piece of land which was let out to the defendant by a registered lease deed dated 15th Aug., 1928. The defendant had claimed title to this on the basis of certain rights alleged to have been bestowed on him under the U. P. Urban Area Zamindari Abolition and Land Reforms Act, 1964 and had also claimed that the amount of the rent had since been paid and, therefore, the benefit of Sections 114 and 114-A of the T. P. Act should be granted to the defendant. Both the trial court and the lower appellate court rejected the plea of the defendant and have refused to grant any benefit under Ss. 114 and 114-A of the T. P. Act. This is how the defendant has come up before this Court in second appeal.

2. I have heard the learned counsel for the parties. The short point that has been argued in this appeal is about the applicability of Ss. 114 and 114-A of the T. P Act to the facts of the present case. Before entering into the controversy it will be appropriate to look into the relevant provisions of T, P. Act.

2A. Section 111(g) of the T. P. Act, while dealing with various modes in which a tenancy may come to an end, reads as under:

'By forfeiture: that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or, (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event, and in any of these cases the lessor or his transferee gives a notice in writing to the lessee of his intention to determine the lease.'

3. In the present case, what has happened is that the defendant was let out an open piece of land in the year 1920 under the lease in question and one of the conditions in the lease was that if the tenant failed to pay the rent of two years, he would be liable to ejectment. When the defendant failed to pay the rent of more than two years, a notice purporting to be under Section 106 of T. P. Act was served on him determining his tenancy. In this notice the plaintiff relied upon the aforementioned condition in the lease deed regarding non-payment of rent and also on the ground that the defendant, in violation of the terms of the lease deed had raised Pakka construction on the land. It was a 30 days' notice to the defendant which purported to be under Section 106 of the T. P. Act. The defendant, in reply to this notice, vide Ex-7 stated that the land had been taken by the defendants at the rate of Rs. 3.00 per year for constructing the house and that under the provisions of the U. P. Urban Area Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act), the land has become the Bhumidari of the defendant and the plaintiff was left with no title to the said property and that he was not liable to pay any rent also. The plaintiff, thereafter, filed a suit and in paragraphs Nos. 7 and 18 of the written statement the defendant again asserted that the plaintiff's right had come to an end under the Act and that the defendant had become the owner of the land and as such was not liable to be ejected.

4. Under these circumstances, this Court is now required to decide as to whether the plaintiff was entitled to the benefit of Ss. 114 and 114-A of the T. P. Act. Section 114 of the T. P. Act reads as under:

'Whether a lease of immovable property has determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the court may, in lieu of making a decree, for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred.'

This section applies only in a case in which the forfeiture of toe tenancy has taken place on account of the non-payment of rent. If the forfeiture has taken place on account of the denial of the title or on account of the tenant's becoming insolvent, then the provisions of Section 114 would not apply. In this case, admittedly the tenant has paid the entire rent in the court and the notice served upon the tenant was not for the forfeiture of the tenancy on account of the non-payment of rent. Therefore, Section 114 will not he applicable. Section 114-A of the T. P. Act read as under:

'Where a lease of immovable property has determined by forfeiture for a breach ol an express condition which provides that on breach thereof the lessor may re-enter, no suit for ejectment shall lie unless And until the lessor has served on the lessee a notice in writing:--

(a) specifying the particular breach complained of; and

(b) if the breach is capable of remedy, requiring the lessee to remedy the breach; and the lessee fails, within a reasonable time from the date of the service of the notice, to remedy the breach, if it is capable of remedy.

Nothing in this section shall apply to an express condition against the assigning, under-letting, parting with the possession, or disposing of the property leased, or to an express condition relating to forfeiture in case of non-payment of rent'.

5. A reading of Section 114-A also shows that these provisions would apply only in a case where the lease was determined by forfeiture on breach of an express term of the lease and for this it is necessary that the lessor himself should serve the notice in writing specifying the particular breach complained of and if the breach was capable of remedy, requires the lessee to remedy the breach and after the failure of the lessee within reasonable time of the service of the notice for remedying the breach, then only the suit for ejectment by the lessor could lie. In the present case, this condition is also not applicable and on the face of it, the appellant would not be entitled to the benefit claimed by him. In any case even if for the sake of argument, it may be treated that these provisions would apply in the present case also because the forfeiture was also on account of the denial of the title of the plaintiff, then it has to be seen as to whether the defendant has in fact denied the title of the plaintiff or not.

6. The learned counsel for the appellant has relied upon the decision in Raja Mohammad Amir Ahmad Khan v. Municipal Board of Sitapur (AIR 1965 SC 1923) wherein the appellant was the tenant of the Nazul land and it was contended by him that he and his predecessors have been the owners of the land and have been exercising permanent, heritable and transferable right in the land openly and with the consent and knowledge of the Government. These words were interpreted by the Supreme Court as not amounting to clear denial of the title of the Municipal Board inasmuch as the question of the knowledge and consent of the Government was totally foreign to the concept of denial of title. It was held that though divorced from the context these words are capable of being construed as an assertion of absolute ownership, they cannot, in the setting in which they occur and bearing in mind the history of the enjoyment by the appellant and his predecessors of this property, be deemed to be an assertion unequivocal in nature of absolute ownership sufficient to entitle a forfeiture of a permanent tenancy of this nature. The reference to the consent of the Government to such an enjoyment would be wholly inappropriate if the assertions were understood to be as an absolute owner in derogation of the rights of the Government as landlord. The consent would have relevance only if the Government had any interest in the property. That was an additional reason for holding that at the worst the assertion was not unequivocal as to entail the forfeiture of the tenancy. Therefore, the terms of the lease in the case which was being considered by the Supreme Court were quite different trom the assertions with which we have to deal with in this case.

7. In Paras. 7 and 18 of the written statement, as I have already observed above, the defendant has very clearly stated that the plaintiff had no title to the property and that under the U. P. Urban Area Zamindari Abolition and Land Reforms Act, the defendant has become the owner of the land in question. These words are, in my opinion, quite unequivocal and amount to denial in absolute terms the title of the defendant (plaintiff) in the property demised. In view of the above it could not be said that the defendant made the assertion of the title under some misapprehension but in fact it is to be held that the defendant asserted a clear denial of title of the lessor and was, therefore, not entitled to the benefit of Section 114 or Section 114-A of the T. P. Act.

8. Since the defendant did deny the title of the plaintiff and there is nothing which may entitle him to be relied against ejectment I do not find any merit in the submission made by the learned counsel for the appellant. The appeal, therefore, fails and is accordingly dismissed with costs.


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