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Babu ShahbuduIn Vs. Ghisa Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 230D of 1963
Judge
Reported inILR1972Delhi21
ActsCode of Civil Procedure (CPC), 1908 - Order12, Rule 4; Limitation Act, 1908; Transfer of Property Act, 1882 - Sections 106
AppellantBabu Shahbuduin
RespondentGhisa Ram and ors.
Advocates: D.D. Chawla and; N.D. Bali, Advs
Cases ReferredChandrika Prasada v. Bombay Baroda and Central Indian Railway Co.
Excerpt:
.....not done in that manner, the document cannot be said to be exhibited in accordance with law. this proposition is well established by the cases reported in a. all the conditions of the lease make it perfectly obvious that this was a usual monthly lease and the tenancy could be determined by giving a notice of 15 days. this proposition is well established by the dictum of their lordship of the privy council in in re :chandrika prasada v......senior subordinate judge, delhi. the first appellate court held on the basis of the aforesaid rent-note that the relationship of landlord and tenant existed between the appellant and the respondents; that the respondents had become owners of the houses by adverse possession and that there was no evidence to prove that the respondents had paid any rent to the appellant either till 1948 as claimed in the plaint or till 1950 as stated by the appellant in his statement in court. on these findings, the appeal was dismissed and the first appellants court did not go into the question whether the respondents were liable to ejectment.(7) the first question that arises in this case is whether the said rent-note has been duly proved as held by the first appellate court. mr. bali for the.....
Judgment:

S.N. Andley, J.

(1) In this second appeal, the main question is whether the suit for' ejectment and arrears of rent etc. filed by the appellant against the, respondent is barred by time.

(2) The two houses in dispute are Nos. XIV/4122-23 in Gali Barna, Sadar Bazar. Delhi. The respondents had sold these two houses to the appellant by a registered sale deed (Exhibit PA/I) dated January 22. 1937. The sale deed contained a covenant whereby the respondents were given the right to repurchase these two houses on the terms contained in the sale deed. Subsequently by a deed of release dated February 3. 1942. the respondents abandoned their right to repurchase these houses and on this very date executed a lent deed (Exhibit 'RB' also marked 'A') whereby the respondents agreed to remain tenants under the appellant. Thereafter, there were some proceedings between the parties before the Custodian of Evacuee Property with respect to the houses in dispute. By order dated September 14, 1954, the Custodian held the appellant to be the owner of these two houses. It may here be mentioned that these two houses were never notified as evacuee property By notice dated May 28, 1956 (Exhibit Public Witness . 7/1), the appellant demanded eviction of the respondents from the two houses on the grounds of arrears of rent; personal bona fide requirement and reconstruction. On non-compliance with the notice, the appellant, on December 14. 1956. filed the suit which has given rise to this appeal. The suit was filed in the Civil Court for ejectment of the respondents on the aforesaid grounds under the Delhi and Ajmer Rent Control Act, 1952.

(3) The case of the appellant was that he was the owner and the landlord of the aforesaid two houses wherein the respondents were tenants at a monthly rent Rs. 13.00 and that the respondents had not paid any rent from April 1, 1948 to the date of the suit.

(4) In the written statement, the respondents asserted that the two houses were their ancestral property but in saying so no reference was made either to the aforesaid sale deed or the aforesaid deed of release which had been executed by them in favor of the appellant. Alternatively, the respondents pleaded that even if they are not held to be the owners of the two houses, they had been in continuous possession therein for more than 15 years as owners to the exclusion of all others and had thereby acquired rights of ownership by prescription. The acts in support of the alleged adverse possession were not mentioned.

(5) On the pleadings of the parties, the learned Subordinate Judge framed the followings Issues :-

1. Is the plaintiff owner landlord of the premises ?

2. If so, is not the defendants liable to ejectment ?

3. Are the defendants owners of the premises by adverse possession ?

4. Is the suit within time ?

5. Relief.

The trial Court decided all the Issues against the appellant and dismissed the suit with costs-

(6) The appellant filed an appeal which was decided on May 3, 1963 by the Additional Senior Subordinate Judge, Delhi. The first appellate Court held on the basis of the aforesaid rent-note that the relationship of landlord and tenant existed between the appellant and the respondents; that the respondents had become owners of the houses by adverse possession and that there was no evidence to prove that the respondents had paid any rent to the appellant either till 1948 as claimed in the plaint or till 1950 as stated by the appellant in his statement in Court. On these findings, the appeal was dismissed and the first appellants Court did not go into the question whether the respondents were liable to ejectment.

(7) The first question that arises in this case is whether the said rent-note has been duly proved as held by the first appellate Court. Mr. Bali for the respondents challenges the finding of the first appellate Court as to the due execution of this rent note as being a finding without evidence. On this question, the first appellate Court has relied upon the statement of Usman Ahmed (Public Witness . 6) that this document was executed by the respondents. It has also relied upon the endorsement on the stamp paper dated January 18, 1942, showing that the stamp paper was purchased by Ghisa Ram, one of the respondents, at a time when there was no question of any dispute between the parties. The jurisdiction of this Court, sitting in second appeal, as to findings of fact arrived at by the first appellate Court is extremely limited. Such a finding can be interfered with only if it is a finding without evidence or perverse. The reliance upon the aforesaid two facts by the first appellate Court to come to the conclusion that the rent note was duly executed by the respondents cannot be said to be either perverse or without evidence. have, thereforee, to proceed on the footing that the rent note was duly executed by the respondents.

(8) The next point raised by Mr. Bali for the respondents is that the rent note has not been exhibited in accordance with law. Now. the rent note on its back contains the stamp of the Court with the particulars required by rule 4 of Order 13 of the Code of Civil Procedure and, infer alia, it states that the exhibit marked on this document is 'Exhibit A'. Mr. Bali contends that the signatures of the Presiding Officer on this stamp could not have been placed on this document during the course of the testimony of any witness. It is true as held in 1969 (71 ) P.L.R. 177 in re : Prithi Raj v. Hans Raj (1) that when a document is exhibited, the particulars mentioned in rule 4 of Order 13 of the Code of Civil Procedure have to be endorsed on the said document and that where it is not done in that manner, the document cannot be said to be exhibited in accordance with law. No such point appears to have been raised by the respondents before the first appellate Court and it is not possible for this Court, in second appeal, to determine the question of fact as to whether the entries on the stamp on this document were or were not made in accordance with law and, thereforee, the document has to be taken to have been proved and exhibited in accordance with law as held by the first appellate Court.

(9) Before slating the points raised by the appellant in this appeal, it is necessary to state the relevant parts of the rent note. In the opening. part, it is stated that the respondents have taken the property in suit on a rental ut Rs. 10.00 per month inclusive of house tax with effect from 1st Muharram, 1361 Hijri according to Hiri months; that the rent is payable month by month; that the respondents will themselves reside in the property in suit and that upon intimation received from the landlord, the respondents will, within one month of the intimation, vacate the property without any objection. There is a sentence in the last part of the rent note after all the recitals staling :-

'LIHAZA yeh kiraya nama miyadi kam az ek sal likh diya.'

Translated, the above quoted sentence means that this rent note for a term of less than one year has been written.

(10) The date of this rent note is February 3, 1942 and, thereforee, it would expire before the expiry of one year. The exact period of the lease is not stated and the expression employed is, to say the least, ambiguous.

(11) The first contention of the appellant is that even if the rent note is construed as being for a fixed term, the period of limitation prescribed by Article 139 of the First Schedule to the Indian Limitation Act, 1908, will not commence to run unless the tenancy is terminated or determined by notice and until this is done, the relationship of landlord and tenant between the parties would continue. There is no substance in this contention. If the rent note can be taken to be for a fixed term, the term will expire by the efflux of time under section 111(a) of the Transfer of Property Act, 1882 and it would not be necessary to serve a notice for determination of t.he tenancy. This proposition is well established by the cases reported in A.I R. 1922 P C 184 in re: Mohunt Bhagwant Rumanuj v. Ramkrishna Bose and another(2) and A.I.R. 1940 Lah 410 in re : Banwari Lal v. Mt. Hussaini and another .(3) In the latter case. it has been stated :-

'THERE is a distinction between a tenancy-at-will. and a tenancy lor a fixed term. In the former case the tenancy does not determine until notice to quit has been served on the tenant or he has denied the landlord's title. In the latter case, the tenancy is determined automatically at the expiry of the term of the lease, and after that date the relationship of landlord and tenant does not subsist, unless it is proved that there was a novation of contract, express or implied and the tenancy has been converted into a tenancy-at-will or a tenancy from year to year.'

(12) The next contention on behalf of the appellant is that the rent note in this case cannot be construed as creating a tenancy for a fixed term by using the words that the rent note is for a period of less than one- year. I find substance in this contention. The entire document proceeds on the basis as if it is a tenancy from month to month terminable by one month's notice. The aforesaid words used at the end of the rent note have been used merely to avoid registration of the rent note as a lease as required by section 107 of the Transfer of Property Act, 1882.

(13) A similar document was construed by a Division Bench of the Lahore High Court (Harries C.J. and Abdul Rashid J.) in the case reported in 1943 (45) P.L.R. 455, in re: Bhagat Ram and another v. Amar Nath(4). The rent deed in this case ran as follows :-

'MAKAN mazkur bataqarar kiraya mabligh barah rupiya mahwar az ibtadai 10th June 1918 miad kam az yak sal waste rihaish khud kiraya par liya hai.'

The above quoted words when translated mean :-

'AFORESAID house has been taken on rent at the rate of Rs. 12.00 per month as from 10th June, 1918, period less than one year for personal residence.'

The rent deed in this case also contained a number of other conditions which were found to be such as are to be found in monthly tenancies : the rent was to be paid by the tenant at the end of every month and ha was liable to ejectment if he did not pay the rent regularly- In case the landlord desired to eject the tenant he was to give 15 days' notice. The terms of the document in the case before me are, thereforee, almost identical with the terms of the document in the aforesaid Division Bench authority. Construing the rent deed in that case, the learned Judges held,-

'THE words 'miad kam az yak sal' do not connote that this is a lease for a fixed period; for instance, this lease cannot be determined by efflux of the time fixed by the lease. The lease fixes no time at all. The present rent deed cannot be construed to mean that the tenant would occupy the house for any specified period which happens to be less than one year. In order that this document (Exhibit P. 4) may be construed as a lease for a fixed period the lower courts have taken it as if it is a lease for a period of one year certain. It cannot be said that a period of less than one year 'is a definite period'. It has been observed in a judgment of the Allahabad High Court in the case of Nangal Puri v. Baldeo Puri : AIR1938All304 that a lease for less than one year means a lease for some specified period which is less than twelve months. In the present case there is no specified period at all. The lease in the present case cannot, thereforee, be regarded as a lease for any specified period at all whether more or less than one year.

After consideration of the rent deed I am of the opinion that the words 'miad kam aa yak sal' are so uncertain and ambiguous that they must be disregarded altogether. All the conditions of the lease make it perfectly obvious that this was a usual monthly lease and the tenancy could be determined by giving a notice of 15 days.'

In my view the words used in the rent deed in the present case 'Myadi kam az ek sal' have to be disregarded altogether, being uncertain and ambiguous and not creating a tenancy for a fixed period. On this conclusion, it necessarily follows, that the respondents were month to month tenants and the relationship of landlord and tenant will continue even after February 3, 1943, until its determination by notice. It would not make any difference if the tenants do not pay rent because a tenant cannot dispute his Lesser's title so long as he remains in possession under an agreement which he has made with him. This proposition is well established by the dictum of their Lordship of the Privy Council in in re : Chandrika Prasada v. Bombay Baroda and Central Indian Railway Co. (5) The notice in the present case was served upon the respondents only in May, 1956, shortly before the suit.

(14) Article 139 of the First Schedule to the Indian Limitation Act, 1908 is a special Article for a landlord to recover possession from a tenant. It prescribes a period of 12 years from the time when the tenancy is determined. If a period of 12 years from the determination of the tenancy has expired, then under section 28 of the said Act, the right of the plaintiff to the property in suit shall be extinguished.

(15) In view of the fact that the tenancy was not determined until the aforesaid notice was served in 1956, there is no question of the present suit being barred by time by reason of Article 139.

(16) The appeal is, thereforee, allowed with costs. Since the first appelate Court has not considered the other questions in the case, particularly the question whether the appellant is entitled to an order of eviction, the case is remanded to the first appellate Court for decision on the other questions in the case. Parties are directed to appear before the first appellate Court on December 4. 1971, for taking further steps.


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