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Ayisabeevi and anr. Vs. Aboobacker - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. 712 of 1970
Judge
Reported inAIR1971Ker231
ActsKeralal Buildings (Lease and Rent Control) Act, 1965 - Sections 11(4); Evidence Act, 1872 - Sections 114; General Clauses Act, 1897 - Sections 27
AppellantAyisabeevi and anr.
RespondentAboobacker
Appellant Advocate S. Narayanan Potti, Adv.
Respondent Advocate P.K. Shamsuddin, Adv.
DispositionRevision allowed
Cases ReferredAhammad Kanna v. Muhammed Haneel
Excerpt:
.....by compelling the persons who have occasioned the difficulty, to make good out of what may be considered to lie in the nature of a common fund, that portion of it which belongs to another. ..it has been long settled, and that law is not now to be unhinged, that a tenant contracts among other obligations resulting from that relation, to keep distinct from his own property during his tenancy, and to leave clearly distinct at the end of it, his landlord's property, not in any way confounded with his own. a-l, i should think, has satisfied this requirement. a liberal construction is therefore put upon a notice to quit in order that it should not be defeated by inaccuracies either hi the description of the premises, or the name of the tenant or the date of expiry of the notice. the privy..........has been obliterated with the result that the shop building is now tagged on to the godown of the western property, belonging to a different person which also has been taken on rent by the present tenant. the owner of the western plot is one krishna menon. the western property, which lies contiguously with the eastern property which is the subject-matter of the present proceedings, has been taken on lease by the present tenant and there a godown has been erected by him. he has now put up a corridor, marked o. p. e. f. in the plan, in between the two plots in such a way that the space west of the western wall of the shop building which forms part of the property of the petitioners has been brought under the roof of the corridor and the roof itself touches the western wall of the shop.....
Judgment:
ORDER

Sadasivan, J.

1. The landlords are the revision petitioners. They applied in the Court of the Rent Controller at Calicut for eviction of the respondent from the shop building rented out to him for a monthly rent. The petition was filed under Section 11(4) of Act 16 of 1959 now replaced by the Kerala Buildings (Lease and Rent Control) Act--Act 2 of 1965 (shortly stated the Act); (arrears of rent and bona fide requirement for own occupation were also put forward by the landlord as grounds for eviction; but they have been found against by both the Controller and the appellate authority; the grounds falling under Section 11 (4) (ii) alone was pressed). The ground under Section 11 (4) was also found against by the Controller; but on appeal, the learned Subordinate Judge reversed that finding and ordered eviction, on the around that the tenant used the building in such a manner as to destroy or reduce its value materially and permanently. But in revision the learned District Judge has reversed the judgment of the appellate authority and dismissed the petition. Before the District Judge, mainly two contentions were raised by the tenant and they are:--

(i) that the tenancy has not been terminated by a notice under Section 106 of the Transfer of Property Act and hence the Court has no jurisdiction to order eviction; and

(ii) that the tenant has not used the building in such a manner as to reduce its value materially and permanently.

These contentions seem to have found favour with the learned District Judge. On a review of the position in all its relevant aspects I am led to the view that the learned District Judge, in revision has gone wrong in his finding that the tenant has not used the building in such a manner as to destroy or reduce its value materially and permanently and also that there was no proper notice to quit as contemplated under Section 106 of the Transfer of Property Act.

2. On the second point, viz.. whether the tenant has used the building in such a manner as to destroy or reduce its value materially and permanently, the contention of the landlord is that the western boundary of the property where the building stands has been obliterated with the result that the shop building is now tagged on to the godown of the western property, belonging to a different person which also has been taken on rent by the present tenant. The owner of the western plot is one Krishna Menon. The western property, which lies contiguously with the eastern property which is the subject-matter of the present proceedings, has been taken on lease by the present tenant and there a godown has been erected by him. He has now put up a corridor, marked O. P. E. F. in the plan, in between the two plots in such a way that the space west of the western wall of the shop building which forms part of the property of the petitioners has been brought under the roof of the corridor and the roof itself touches the western wall of the shop building and the eastern wall of the godown. By virtue of the corridor the shop building and the godown have been locked up together so as to form one building for all outward purposes. The fact that the property of the petitioners extends further to the western wall of the building is not disputed. The learned District Judge himself has noticed this fact as is clear from his observation in the order that:--

'It is now admitted that the boundary line between the two properties lies somewhere along that vacant space.'

The vacant space referred to is the space lying in between the western wall of the shop building and the eastern wall of the godown. That the boundary line which runs along this vacant space has been obliterated by means of the roofed corridor is also conceded; but the contention of the tenant is that from that circumstance it is not possible to argue that the value and utility of the petitioners' building has been destroyed or reduced materially and permanently. I do not think this is a tenable contention. The fact cannot be disputed that the western boundary of the schedule property has completely been obliterated and confused by the putting up of the corridor. The corridor itself, as observed already, is partly in the western plot and partly in the eastern plot. The Commissioner has pointed out that the corridor is in the nature of a connecting link connecting the godown and the shop building.

The confusion created by the erection of the corridor is bound to lead to further complications in future and create difficulties for the reversioner or remainder-man in redeeming the property, and the intending purchaser would think twice before entering into a transaction of sale because of this obstruction. The tenant in putting up such a structure has abused his privilege as a tenant and it would now be difficult for him to restore the petitioners' premises in its original condition without the co-operation or concurrence of Krishna Menon, who is the owner of the western plot. The value of the holding has undoubtedly been impaired by the construction in Question. Attorney-General v. Stephens. ((1855) 6 DE GM & G 111 = 43 ER 1172) and Spike v. Harding ((1878) 7 Ch D 871) are authorities cited in support of the above position. The following observations appearing in the first cited case. (1855) 6 DE GM & G 111 = (43 ER 1172) are instructive in this connection:--

'Where a tenant of land for life or for years or at will has lands of his own adjoining to that which he so holds as tenant, it is his duty to keep the boundaries between them clear and distinct, .so that at the expiration of the tenancy the reversioner or remainder-man may be able without difficulty to resume possession of what belongs to him, and if the person having such partial interest neglects this duty, and suffers the boundaries to be confused so that the reversioner of remainder-man cannot tell to what lands he is entitled, this Court will give relief by compelling the persons who have occasioned the difficulty, to make good out of what may be considered to lie in the nature of a common fund, that portion of it which belongs to another.'

In the same strain are the observations in the case second cited, (1878) 7 Ch D 871. The observations are:--

'The duty of the tenant of land, immediately adjoining other land of his own, is not merely to leave the boundary between his own land and his landlord's distinct at the expiration of his term, but to keep it distinct during the term. The Court has, therefore, jurisdiction during the term to ascertain the boundary if the tenant has confused it.........It has been long settled, and that law is not now to be unhinged, that a tenant contracts among other obligations resulting from that relation, to keep distinct from his own property during his tenancy, and to leave clearly distinct at the end of it, his landlord's property, not in any way confounded with his own.'

In the light of the above principles, which are on all fours in the present case, it must be held that the utility and value of the property have materially and permanently been reduced by the action 3f the tenant and is accordingly liable to be vacated under Section 11(4)(ii) of the Act. Learned counsel for the other side argued on the basis of Govindaswami Naidu v. Pushpammal. (AIR 1952 Mad 181), that every act of waste by the tenant will not entitle the landlord to obtain an order of eviction under the provisions of the Madras Buildings (Lease and Rent Control) Act. In that case the act of waste alleged was the demolition of the wall. The learned Judges observed in that case that:--

'It cannot be laid down as a rule of law that a demolition of any wall in a building must necessarily be deemed to be an act of waste which is likely to impair materially the value or utility of the building. A finding on this point is a finding which must be based upon the particular facts as emerge from the evidence that is adduced in the case.'

The pulling down of a wall might or might not amount to waste and the question will depend upon the purpose for which the wall was pulled down. But in the case on hand the position is materially different. We are here confronted with an act on the part of the tenant resulting in the obliteration of the boundary line and the tagging on of the property to the adjoining property through the medium of a corridor. Ahammad Kanna v. Muhammed Haneel (1967 Ker LT 841), which was also relied on by the respondent is to the same effect as AIR 1952 Mad 181 (sited supra). There also the act of waste alleged was the demolition of a wall and the learned Judge held that :--

'It cannot be laid down as a rule of law that demolition of any wall in a building must necessarily be deemed to be an act of waste which is likely to impair materially the value and utility of the building.'

3. The next question is as to whether a notice to quit under Section 106 of the Transfer of Property Act was issued to the tenant in time. Section 106 of the Transfer of Property Act provides that:

'In the absence of a contract or local law or usage to the contrary, a lease of immoveable property for agricultural or manufacturing purpose shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months notice expiring with the end of a year of the tenancy; and a lease of immoveable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy.'

For the present purpose, we are concerned only with the latter part of the above section, viz., 'lease from month to month terminable by fifteen days' notice expiring with the end of a month'. Such a notice is claimed to have been issued in the present case by registered post and to evidence the sending of the notice the landlord has produced a copy of the notice together with the postal receipt, marked Ex. A-l in the case. The notice was sent as is seen from the postal receipt, on 11-2-61. It must normally have reached the addressee on the 3rd day and the 15th days calculated from that day would take us to the 28th of February, which is the last day of the month. Thus according to the landlord, the requirement of the section has duly been complied with.

'If a letter properly directed, containing a notice to quit, is proved to have been put into the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office and was received by the person to whom it was addressed. The posting in due course of a letter raises a presumption that it has reached the addressee. A post office seal on an envelope which has been posted may be presumed to be genuine, at any rate where its genuineness is not expressly questioned. If the postmark be taken as genuine, it is evidence that the cover bearing it was stamped on the date the impression bears. The postmark is evidence that the place or office mentioned therein was actually the place where it was affixed. The presumption is that the notice was served at the time when it would be delivered in the ordinary course of post.' (vide Woodroffs Ameer Ali's Law of Evidence, llth Edn. Vol. 3, p. 2248).

On the strength of Ex. A-l postal receipt, it is argued on behalf of the landlord that he should Ret the benefit of the presumption both under Section 114 of the Evidence Act and Section 27 of the General Clauses Act that the notice was posted in the post office and it reached its destination. I think the position contended for is correct and must be accepted.

4. Learned counsel for the tenant would, on the other hand, argue that the presumption can be availed of by the landlord, only if he proves that the letter was correctly addressed and from the postal receipt it is not possible to say that it was posted in the correct address of the tenant. A letter correctly addressed and posted, if not received back through the dead letter office must be presumed to have reached the addressee. In the postal receipt, normally the whole address of the addressee is not given only his name and the name of the post office to which the letter is addressed will be shown. So, from the postal receipt it cannot be argued that the letter was not sent in the proper address. The copy of the notice filed along with the postal receipt shows that it was sent in the correct address of the tenant (Mulleri-manathil Aboobacker merchant. Midayl Street. Kozhikode). As the letter was not received back, it has to be presumed, in the circumstances, that it duly reached the addressee and was received by him.

Then the learned counsel for the res pondent stated that even if it is conceded that the notice was issued, the landlord must further show that the notice is one strictly in accordance with Section 106 of the Transfer of Property Act. Under normal' circumstances a valid notice to quit under Section 106 of the Transfer of Property Act should determine the tenancy by 15 days' time expiring with the end of a month of the tenancy. Ext. A-l, I should think, has satisfied this requirement. Clear intimation was given by Ex, A-l that the tenancy would terminate by the end of 15 days, that is, by the end of February, 1961. Even if the notice is not strictly in accordance with the section, law insists that where the recipient of the notice is not likely to be misled as to the Intention of the sender of the notice. It must be taken that the requirement of the section has been complied with.

'The rule has been to make lame and Inaccurate notices sensible where the recipient cannot have been misled as to the intention of the giver. A liberal construction is therefore put upon a notice to quit in order that it should not be defeated by inaccuracies either hi the description of the premises, or the name of the tenant or the date of expiry of the notice. The Privy Council has said that these English authorities are applicable to cases arising In India and that 'they establish that notices to quit, though not strictly accurate or consistent in the statements embodied in them, may still be good and effective in law; that the test of their sufficiency is not what they would mean to a stranger Ignorant of all the facts and circumstances touching the holding to which they purport to refer, but what they would mean to tenants presumably conversant with all those facts and circumstances; and further, that they are to be construed, not with a desire to find faults in them which would render them defective, but to be construed to res magis valeat quam pareat.' (Vide Mulla's Transfer of Property, 5th Edn. p. 666).

Thus in any view of the matter it must be held that the requirement of Section 106 of the Transfer of Property Act has fully been complied with in the present case.

5. The result is that the revision petition is allowed and the order of the learned District Judge is set aside. The landlord's petition for eviction R. C. O. P. 192/61 is allowed under Section 11(4)(ii) of the Act.


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