G.L. Oza, J.
1. This second appeal has been filed by the plaintiff-appellant against judgment and decree passed by Additional District Judge, Gwalior, in Civil Appeal No. 89-A of 1969 confirming the judgment and decree passed by Civil Judge Class II, Gwalior in Civil Suit No. 145 of 1965 dismissing the plaintiff-appellants' suit for eviction,
2. The facts giving rise to the present appeal are that the plaintiff-appellant filed a suit for arrears of rent and eviction on the grounds covered by Section 12 (1) (a), (c), (e) and (i) of the M. P. Accommodation Control Act, 1961 against the defendant-respondent. TheCourts below dismissed the claim as fareviction is concerned.
3. The respondent-defendant is in occupation of two rooms on the ground floor in house No. 2/1884 situate at Lohiya Bazar. Lashkar. At one time, the whole house vested in the management of the Managing Officer-cum-Cus-todian. Gwalior, as this house was declared as an evacuee property. The respondent-defendant was inducted in the suit accommodation as a tenant on monthly rent of Rs. 3/- per month and the rent note was executed by her in favour of the Custodian. Evacuee Property. This house was purchased by the plaintiff-appellants in an auction-sale held on 24-6-1960 and at that time besides the defendant-respondent, other tenants were also in occupation of portions of the house. One of the tenants vacated the premises on 9-12-1965 and thereafter the plaintiff-appellant has occupied this accommodation before filing of this suit.
4. Plaintiff-appellants served a notice dated 14-11-1962 (Ex. P-4) on the defendant terminating his tenancy by the end of the next month and also demanded the arrears of rent. This was replied by Ex. P-3 dated 22-11-1962. A sale certificate in respect of this house was issued on 30-12-1964, which is Ex. P-6. The defendant-respondent after the service of writ of summons within the stipulated time deposited the arrears of rent and further subsequent monthly rent. According to the plaintiff after the auction sale on 20-4-1960 (sic) provisional possession of the house to the plaintiff was given on 18-4-1961 and a written order to that effect (Ex. P-4) was issued by the Competent Officer in the name of the plaintiff. The tenants in occupation were intimated to pay rent to the plaintiff from 1st of May 1961 and onwards. According to the plaintiff, therefore, he became the landlord of the suit accommodation and the defendant-respondent committed default in payment of rent to him. It is also alleged that the house was purchased by the plaintiff for genuine requirement as the plaintiff had no other accommodation within the Municipal limits of Gwalior. The plaintiff also sought eviction an the grounds under Sections 12 (1) (i) and 12 (1) (c) of the M. P. Accommodation Control Act.
5. The learned lower appellate courtheld that the grounds under Section 12 (1) (a)and 12 (1) (e) are made out, but thelearned Judge of the lower appellate Court maintained the dismissal of the suit for eviction on the ground that as the suit was filed within two years of the certificate of sale issued in favour of the plaintiff-appellant, the suit is barred under Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. The learned lower appellate Court also held that as plaintiff has failed to prove that the tenancy commenced from 1st of every month, the notice for termination of tenancy is bad and, therefore, the suit for eviction could not be decreed.
6. Learned counsel appearing for the appellant contended that although the sale certificate was issued on 30-4-1964, (sic) but possession was given to the plaintiff-appellant and the tenants were informed to pay rent to the appellant from 1st of May, 1961 and in pursuance of this as a notice for payment of arrears of rent was served on the defendant-respondent and admittedly she did not pay rent within the prescribed time, the objection under Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 will not be available as provided for in proviso to Sub-clause (a) of Clause (1) of Section 29 ibid.
7. Learned counsel for the appellantalso contended that the learned Court below has found that the plaintiff has failed to prove that the tenancy commenced from 1st of every month and therefore, held that the notice to quit is invalid. But the learned Court below failed to consider that the defendant-respondent pleaded that the tenancy commences from 10th of every month, but she has also failed to prove it and in such a situation, the learned Court below should have held that in absence of any evidence about commencement of the tenancy it should be deemed to have commenced from 1st of very calendar month and this also finds support in the circumstance that the tenants were informed, after the provisional possession was given to pay rent from 1st of May 1961 and in this view of the matter, therefore, the notice served on the defendant could not be said to be invalid.
8. Learned counsel appearing for the respondent contended that the notice issued before the sale certificate itself is invalid as held in the decision reported in Sadashiv Balkrishna v. Jagdish Chandra (1967 Jab LJ 117). Therefore, the failure of the tenant to pay the arrearsin response to the notice cannot be used in order to attract the proviso of Section 29. Learned counsel, therefore, contended that the suit is apparently barred by Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act. As regards the validity of notice, learned counsel contended that the defendant in her statement has categorically stated that the tenancy commences from 10th of every month and the finding arrived at by the learned lower appellate court that plaintiff has failed to prove that the tenancy commences from 1st is a finding of fact, which could not be interfered with in second appeal,
9. The first question raised in this appeal, therefore, is as to whether the period of two years will start from the day provisional possession was given to the appellant, or it will start running from the day on which the sale certificate was issued. Learned counsel for the appellant placed reliance on the decision reported in Jaimal Singh v. Smt. Gini Devi (AIR 1964 Punj 99) whereas learned counsel for the respondent placed reliance on the decisions reported in Motandas v. Gopaldas Basarmal (AIR 1962 Madh Pra 307), Bombay Salt and Chemical Industries v. L. J. Johnson (AIR 1958 SC 289) and Sadashiv Balkrishna v. Jagdish Chandra (1967 Jab LJ 117).
10. In fact, in view of the decisionreported in AIR 1958 SC 289, there appears to be no controversy; but in the peculiar facts of this case, in my opinion, it is not even necessary to go into that question, even assuming that the period under Section 29 shall commence from the date of sale certificate. It is clear, in view of the proviso to Sub-clause (1) of this section that in the present case the protection under this section will not be available to the respondent. Section 29, Displaced Persons (Compensation and Rehabilitation) Act, 1954, runs as follows :--
'29. Special protection from ejectment to certain classes of persons.-- (1) Where any person to whom the provisions of this section apply, is in lawful possession of any immovable property of the class notified under Sub-section (2), which is transferred to another person under the provisions of this Act, then, notwithstanding anything contained in any other law, such person shall, without prejudice to any other right which he may have in the property, be deemed to be a tenant of the transferee on thesame terms and conditions as to payment of rent or otherwise on which he held the property immediately before the transfer :
Provided that notwithstanding anything contained in any such terms and conditions, no such person shall be liable to be ejected from the property during such period not exceeding two years as may be prescribed in respect of that class of property, except on any of the following grounds, namely: --
(a) that he has neither paid nor tendered the whole amount of arrears of rent due after the date of the transfer within one month of the date on which a notice of demand has been served on him by the transferee in the manner provided in Section 106 of the Transfer of Property Act, 1882;
(b) x x x x
(c) x x x x
(2) The Central Government may......'
It is clear and it is found by the Courts below that the respondent-tenant neither paid nor tendered the whole amount of arrears of rent due after the date of transfer within one month of the date on which the notice of demand had been served on her by the transferee in the manner provided in Section 106 of the T. P. Act, 1882.
11. Learned counsel for the respondent contended that before the sale certificate even the notice issued by the appellant could not be a good notice and the tenant-respondent is not expected to comply and in absence of such a notice, Sub-clause (a) of the proviso to Section 29(1) will not come into play and the learned counsel placed reliance for this proposition on the decision reported in 1967 Jab LJ 117. This decision, no doubt, holds that a suit by the purchaser could not be filed in absence of a certificate issued by the authorities, placing reliance on the decision reported in Motandas v. Gopaldas, 1961 Jab LJ 1191 : (AIR 1962 Madh Pra 307). It is also held in this case that period of two years mentioned in proviso to Section 29(1) of the Act will have to be counted from the date of the sale certificate and not from the date of the provisional transfer or provisional delivery of possession. But, this case does not lay down that before a sale certificate is issued a notice could not be given. The suit in that case was filed before the certificate was issued and in that context it was observed
'Therefore, the notice of demand cannot be considered to be a valid notice of demand for the purposes of Section 4-A of the M. P. Accommodation Control Act, 1955. It could certainly be a valid notice of demand, if the suit in the Civil Court had been tenable;' Apparently, therefore, this decision instead of helping the respondents supports the case of the appellant. In the suit from which that second appeal arose the observations of which have been quoted above, the suit was filed before the certificate was issued. This is not the situation in the present case, Admittedly, the certificate has been issued in favour of the plaintiff-appellant. It cannot be doubted that the right of a landlord under the Accommodation Control Act to recover rent is different from acquisition of title in the property. It is not disputed that when the Authority informs the tenants that they were to pay rent from 1st of May 1961 to the appellant, the appellant is entitled to recover rent from that day. It is also not in dispute that after this intimation for purposes of M. P. Accommodation Control Act, the appellant became the landlord, although even if the contention of the respondent is accepted, complete title did not pass in favour of the appellant unless the certificate was issued. Still it could not be doubted that as the appellant became landlord within the meaning of the definition of 'Landlord' under the M. P. Accommodation Control Act and it is not in dispute that he is entitled to recover rent from 1st of May, 1961, the appellant could give a valid notice of demand asking the defendant-respondent the arrears of rent. In this view of the matter, therefore, it cannot be disputed that the respondent-tenant did not comply with the notice of demand and did not pay all the arrears within one month of the service of notice as provided in Sub-clause (a) of the proviso to Sub-section (1) of Section 29 of the Displaced persons (Compensation and Rehabilitation) Act, 1954. Consequently, the objection to the suit of the plaintiff-appellant under proviso to Section 29 could not be raised in the present second appeal, and, therefore, the learned Court below committed an error of law in holding that the suit could not be decreed because of Section 29 of the Displaced Persons (C & R) Act, 1954.
11-A. The next question that arises in this appeal is about the validity of the notice terminating the lease. According to the plaintiff-appellant the tenancy commenced from 1st of every month and, therefore, the notice was served on the defendant-respondent (Ex. P-2 (P-4 ?)) D/- 14-11-1962. In this notice the appellant stated that the tenancy commences from 1st of every month and it was, therefore, stated in this notice that the lease is terminated on 31st of December, 1962. A reply to this notice was sent by the respondent-tenant which is Ex. P-3 and in this reply the question of commencement of the tenancy was not disputed. Learned Court below came to the conclusion that the plaintiff-appellant has failed to prove that the tenancy commences from 1st of every month and it is contended that this is a finding of fact, which should not be interfered with.
12. It is pertinent to note that the Managing Officer of the Department of Rehabilitation, Gwalior, by his letter dated 20th April, 1961 intimated the tenants that they are supposed to pay rent from 1st of May 1961 onwards to the plaintiff-appellant. It is also not in dispute that the respondent-tenant, has failed to pay the rents, which were in arrears commencing from 1st May 1961. Learned Court below has found a case made out under Section 12 (1) (a) of the M.P. Accommodation Control Act. Although, the rent-note executed by the respondent in favour of the Custodian Evacuee Property (Ex. P-l) has not been proved but it cannot be disputed that the liability to pay rent to the appellant started from 1st of May 1961.
13. It is also clear from the finding arrived at by the Court below that the rent due from 1-5-1961 was not paid within two months from the receipt of notice and it is also significant that in reply to the notice (Ex. P-3) the tenant-respondent did specifically challenge the allegation made in Ex. P-2 that the tenancy commences from 1st of every month. In these circumstances it is no doubt true that the plaintiff having failed to prove the rent-note (Ex. P-1) has not been able to prove positively by his evidence that the tenancy commences from 1st of every month. It appears that the learned Judge of the lower appellate Court failed to consider these circumstances and also failed to consider that even the respondent's assertion in her statement that the tenancy commences from 10th of every month is not supported by her reply notice and she in her deposition even could not say whether the 10th of every month meansHindi month or English month. Apparently, therefore, the learned Court below has failed to consider the material documentary evidence while considering the question of the commencement of the tenancy.
14. The learned Court below has also failed to consider that in case either party fails to establish the date of the commencement of the tenancy, ordinarily, it should be held that it commences from 1st of every calendar month. But as indicated above, in this case it is not in dispute that the plaintiff-appellant became entitled to the rent of these premises from 1st of May, 1961. The terms of earlier contract, if any, have not been established and the plaintiff's assertion in the notice that the tenancy commences from 1st of every month has not been denied by the defendant-respondent and that the defendant-respondent in reply to the notice did not even allege that the tenancy commences from 10th of every month. It could not, therefore, be doubted that the conclusion arrived at by the learned Court below is not based on any evidence.
15. The learned Court below merely dilated at length about the admissibility of the certified copy of the rent-note executed by the respondent in favour of the Custodian Evacuee Property and holding that that could not be admitted in evidence, arrived at a conclusion that plaintiff has led no evidence to prove that the month of tenancy commences from 1st of every month and omitted to consider the material documents in the case viz., notice, reply to the notice, intimation to the tenants sent by the Managing Officer and the circumstance that the liability to pay rent from 1-5-1961 is not in dispute and, therefore, this finding arrived at by the learned Court below cannot be accepted. Consequently, in my opinion, the Court below was wrong in coming to the conclusion that plaintiff has failed to establish that the tenancy commences from 1st of every month. There is abundant evidence in the case to come to the conclusion that the tenancy commences from 1st of every month. Consequently, the conclusion that the notice terminating the tenancy is not valid also is bad and it is held that the tenancy was validly terminated by the notice given by the plaintiff-appellant.
16. No other question was raised in this appeal. There is already a finding that the plaintiff appellant is entitled toa decree on the ground under Sections 12 (1)(a) and 12 (1) (e) of the M. P. Accommodation Control Act. About Section 12 (1) (a), it appears that after the suit was filed, the arrears were deposited, still the plaintiff is entitled to a decree under Section 12 (1) (e) of M. P. Accommodation Control Act.
17. As the plaintiff-appellant is getting a decree for eviction for the first time in this Court, it would be reasonable that the respondent be given sometime to vacate the premises. She is, therefore, permitted to vacate within four months from the date of the decree of this Court.
18. Consequently, the appeal is allowed. The judgment and decree passed by the learned Court below is set aside. The plaintiff-appellant's suit for eviction and rent and mesne profits is decreed. The appellant shall be entitled to costs of this Court as well as of the Court below. It is, however, ordered that the appellant shall not execute the decree for eviction within four months of the passing of the decree by this Court.