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Sappa Suryanarayana and ors. Vs. S. Rama Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 63 of 1977
Judge
Reported inAIR1980Ori197; 49(1980)CLT562
ActsTransfer of Property Act, 1882 - Sections 105 and 108; Orissa House Rent Control Act, 1968 - Sections 2(5)
AppellantSappa Suryanarayana and ors.
RespondentS. Rama Rao and ors.
Appellant AdvocateN.V. Ramdas, Adv.
Respondent AdvocateS.S. Basu, Adv.
DispositionAppeal dismissed
Cases ReferredMohan Lal Goela v. Siri Krishan
Excerpt:
.....not good law]. - 4 is not a valid notice determining the contractual tenancy, plaintiff's suit must fail and in case the lower appellate court holds that the tenancy was determined by ext. basu, therefore, contends that the earlier judgments are good law and should be followed as binding precedents. his next contention is that at the time of remand, this court had clearly indicated that if the contractual tenancy had been determined and lakshmana murty was found to be a statutory tenant, the defendants were evictabie. anandji kalyanji's pedhi, air 1965 sc 414, the majority of the judges clearly laid down that a statutory tenant does not acquire rights of a tenant and has right of occupation during his lifetime. happy homes (private) ltd. , air 1968 sc 471, clearly indicated in para..........was withdrawn and the suit was filed for eviction of the defendants on the allegation that lakshmana murty, the original tenant was a statutory tenant and his heirs had no heritable right. 3. defendants 2, 3 and 4 alone entered contest. they filed a joint written statement and while admitting that lakshmana murty, the original tenant, died on 5-7-1970 maintained that they had heritable right in the property and they were tenants entitled to protection against eviction. they pleaded that the civil court had no jurisdiction and the suit was, therefore, liable to be thrown out. 4. the trial court held that with the death of lakshmana murty, the tenancy terminated and the defendants had acquired no right in the holding. it accordingly decreed eviction as also arrears of rent at the.....
Judgment:

R.N. Misra, J.

1. Defendants 2, 3 and 4 are in appeal challenging the affirming decree of the learned Subordinate Judge of Berhampur in a suit for their eviction from a shop house at Berhampur and recovery of arrears of rent and damages.

2. Plaintiff came to court on the allegation that the house belonged to one Yasodamma and father of the defendants was a tenant under her. Plaintiff inherited the property and the defendants' father continued as a tenant under him. The disputed property is actually a part of the residential house of the plaintiff and being in need of the same he applied for eviction of the tenant in House Rent Control Case No. 5 of 1968. The proceeding terminated against him before the Controller as also the appellate authority. Plaintiff had filed a writ application in this Court and during its pendency, the original tenant died on 5-7-1970. The writ application was withdrawn and the suit was filed for eviction of the defendants on the allegation that Lakshmana Murty, the original tenant was a statutory tenant and his heirs had no heritable right.

3. Defendants 2, 3 and 4 alone entered contest. They filed a joint written statement and while admitting that Lakshmana Murty, the original tenant, died on 5-7-1970 maintained that they had heritable right in the property and they were tenants entitled to protection against eviction. They pleaded that the Civil Court had no jurisdiction and the suit was, therefore, liable to be thrown out.

4. The trial court held that with the death of Lakshmana Murty, the tenancy terminated and the defendants had acquired no right in the holding. It accordingly decreed eviction as also arrears of rent at the rate of Rs. 60 per month. In appeal, the decree of the trial court was upheld.

5. Defendants carried Second Appeal No. 138 of 1973 before this Court and it was held here:--

'In the present case there is a clear admission that Lakshmana Murty was a monthly tenant. I have already indicated that the interests of a monthly tenant are heritable. It would, therefore, follow that defendants did not become trespassers but must be taken to be also monthly tenants, having the same status as Lakshmana Murty had. As Lakshmana Murty was not a statutory tenant, with his death the tenancy cannot be terminated. The principle indicated in the case reported in AIR 1961 SC 1067, has no application. The lower appellate court went wrong in law in assuming that with Lakshmana Murty's death, the tenancy came to an end and defendants became rank trespassers.

Ordinarily with the reversal of the aforesaid position, the second appeal should have been allowed. Counsel for plaintiff-respondent No. 1, however, claimed that there was material on record to show that the contractual tenancy had been determined and he relied upon a notice (Ext. 4) purporting to be under Section 106 of the Transfer of Property Act, and Ext. 4/a said to be the acknowledgement due. The notice is dated 12-12-1967 and requires possession to be made over on the last day of the month on which tenancy terminates. Unfortunately the courts below have not dealt with this notice to find out whether there was a determination of the contractual tenancy because they assumed the legal position to be different. I would have concluded the matter by examining sufficiency of the notice, but there seems to be dispute as to whether the tenancy was according to the English calendar or as pleaded by defendants in para 4 of their written statement i.e. 16th of a month. It is, therefore, necessary to determine as a fact on the basis of the evidence as to whether Ext, 4 is an appropriate notice as required under Section 106 of the T. P. Act. The matter must go back to the lower appellate court for determination of that fact. If Ext. 4 is not a valid notice determining the contractual tenancy, plaintiff's suit must fail and in case the lower appellate court holds that the tenancy was determined by Ext. 4, plaintiff must have a decree for eviction on the footing that the contractual tenancy had come to an end and Lakshmana Murty was only a statutory tenant until death.

I would accordingly allow the appeal, set aside the judgment of the lower appellate court and remit the Title Appeal for a fresh disposal according to law and in terms of the directions contained above.......'

After remand, the learned Appellate Judge came to hold that Ext. 4 brought about determination of the tenancy in accordance with law and as a fact the tenancy stood determined on 31-12-1967. Accordingly, the suit was decreed. The present appeal in the circumstances is directed against the confirming decree of the appellate court.

6. Mr. Ramdas in support of the appeal now contends relying on the decision of the Supreme Court in the case of Damadilal v. Parashram, AIR 1976 SC 2229, that the statutory tenant has a heritable interest and, therefore, defendants were entitled to claim the protection available under, the statute. Thus they would not be evictabie without an order from the Controller and a suit for their eviction is not maintainable,

7. Mr. Basu on the other hand contends that the decision in Damadilal's case (supra) has to be confined to its own facts and the interpretation of the particular provision in the Madhya Pradesh Accommodation Control Act. According to Mr. Basu, there are three earlier decisions of the Supreme Court, two of Co-ordinate Benches and the other of a Bench of two Judges. In Damadilal's case, reference was made to two of them in paras 9 and 12 of the judgment but there was no clear indication of overruling them. Mr. Basu, therefore, contends that the earlier judgments are good law and should be followed as binding precedents. His next contention is that at the time of remand, this Court had clearly indicated that if the contractual tenancy had been determined and Lakshmana Murty was found to be a statutory tenant, the defendants were evictabie. This has concluded the legal position and is not open to challenge at this stage.

8. In the case of Anand Nivas Private Ltd. v. Anandji Kalyanji's Pedhi, AIR 1965 SC 414, the majority of the Judges clearly laid down that a statutory tenant does not acquire rights of a tenant and has right of occupation during his lifetime. A Bench of three Judges in the case of Calcutta Credit Corporation Ltd. v. Happy Homes (Private) Ltd., AIR 1968 SC 471, clearly indicated in para 15 of the judgment:--

'......... In our view, since a statutory tenant has merely a personal right to protect his possession, and has no estate or interest in the premises occupied by him, he cannot convey an estate or interest which he does not possess. A statutory tenant by parting with possession forfeits the protection of the Act, and unless the statute expressly provides or clearly implies otherwise, the person inducted by him cannot claim the protection of the Act.........'

In the case of J.C Chatterjee v. Shri Sri Kishan Tandon, AIR 1972 SC 2526, two learned Judges of the Supreme Court followed the rule indicated in the decision reported in AIR 1965 SC 414 (supra). In Damadilal's case (AIR 1976 SC 2229) two earlier precedents-- AIR 1965 SC 414 and AIR 1972 SC 2526-- were noticed but no reference was made to the decision reported in AIR 1968 SC 471 (supra), The discussion in Damadilal's case goes to show that the special provisions contained in the Madhya Pradesh Accommodation Control Act were being considered and the conclusion reached was with reference to those provisions. The Court did not intend to make a departure from the law declared earlier by Co-ordinate Benches. A learned single Judge of the Delhi High Court in the case of Mohan Lal Goela v. Siri Krishan, AIR 1978 Delhi 92, has also taken the same view. I am inclined to agree with Mr. Basu that after Lakshmana Murty, the appellants did not have any right to be protected.

There is also force in the submission of Mr. Basu that the finding given by this Court on the legal aspect at the time of remand became final and the direction to the lower appellate court being that in case it was found that the contractual tenancy had been determined, with the death of Lakshmana Murty, the tenancy would come to an end, became conclusive and at this stage cannot be varied.

9. There is no merit in the appeal and the same is, therefore, dismissed. There would be no order for costs.


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