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Permanand and anr. Vs. Smt. Anandi Bai and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberCivil Regular Second Appeal No. 521 of 1972
Judge
Reported inAIR1974Raj65; 1973()WLN643
ActsRajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 13; Code of Civil Procedure (CPC) , 1908 - Sections 21 and 100; Transfer of Property Act, 1882 - Sections 106
AppellantPermanand and anr.
RespondentSmt. Anandi Bai and ors.
Appellant Advocate R.R. Vyas, Adv.
Respondent Advocate S.C. Bhandari, Adv.
DispositionAppeal dismissed
Cases ReferredHarihar Banerji v. Ramshashi Roy
Excerpt:
.....tenancy had been split up both for the purposes of termination as well as for the filing of the suit.;the notice ex. 4 is not bad on the ground that it relates only to a portion of the property nor is the suit defective on this score. - - the learned munsif, on consideration of the evidence, decreed the suit both for eviction as well as for arrears of rent amounting to rs. but inthe first place, according to learnedcounsel, the plaintiff has failed to proveby reliable evidence that permanand wasthe person who received the notice andin the alternative it was submitted thateven if permanand can be held to havereceived the notice such a receipt by himwould not be valid in the eye of law, asaccording to plaintiff's evidence. 4 related only to a part of the tenanted premises and was..........by the plaintiff by a notice dated 25-1-67. it may be mentioned that during the pendency of the suit dharamdas died and his legal representatives permanand and jhamandas were brought on record in his place.3. the defendant-tenant contested the suit. it was averred by him that he was in occupation of the suit premises on the second floor of the house together with the veranda on the third floor of the house since 1948. he claimed that -he was allotted the property by the custodian of evacuee property as he happened to be a displaced person from pakistan. it was denied that the plaintiff needed the property for [her own residence or that her need was bona fide and reasonable. he further denied that he was a defaulter in the payment of rent. the validity of the notice was also denied.4......
Judgment:

Kan Singh, J.

1. This is a defendants' second appeal arising out of, a suit for eviction from certain premises described in para-1 of the plaint.

2. Smt. Anandi Bai, the plaintiff-respondent, 'had purchased the property in question from one Govind Ram on 4-8-66. Defendant Dharamdas was the tenant of Govind Ram and In consequence of the purchase of the property by Smt. Anandi Bai he became her tenant. The plaintiff sued the defendant Dharamdas and sought the relief of eviction on two grounds' (1) 'that of default and (2) that the property was bona fide and reasonably required by the plaintiff for residence. Prior to the filing of the suit the tenancy was terminated by the plaintiff by a notice dated 25-1-67. It may be mentioned that during the pendency of the suit Dharamdas died and his legal representatives Permanand and Jhamandas were brought on record in his place.

3. The defendant-tenant contested the suit. It was averred by him that he was in occupation of the suit premises on the second floor of the house together with the veranda on the third floor of the house since 1948. He claimed that -he was allotted the property by the Custodian of Evacuee Property as he happened to be a displaced person from Pakistan. It was denied that the plaintiff needed the property for [her own residence or that her need was bona fide and reasonable. He further denied that he was a defaulter in the payment of rent. The validity of the notice was also denied.

4. The learned Munsif, Aimer City (West), in whose court the suit, was filed, framed as many as 13 issues. Both the parties led their evidence. The learned Munsif, on consideration of the evidence, decreed the suit both for eviction as well as for arrears of rent amounting to Rs. 102/-. He further awarded Rs. !16/- as damages for the use and occupation of the premises from the date of the suit.

5. Aggrieved by the judgment and decree of the learned Munsif the defendant-tenant went up in appeal to the court of the District Judge, Ajmer. The learned District Judge assigned the appeal to the Additional District Judge, Ajmer. The learned Additional District Judge, by and large, accepted the conclusion reached by the learned Munsif and accordingly dismissed the appeal.

6. It is In these circumstances that the tenant has come in second appeal to this Court.

7. Learned counsel for the defendant-appellant has raised a number of grounds, but some of them will not survive for consideration. It is to be noted that Dharamdas, the original tenant died during the pendency of the suit. If his tenancy can he said to have been terminated by a valid notice, then his position will be that of a statutory tenant and consequently the protection against eviction that could be claimed by a statutory tenant under Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter referred to as the Act', cannot be claimed after the death of such statutory tenant by his legal representatives and, therefore, the principal question that was first argued by learned counsel for the appellant waswhether the tenancy had been terminated by a valid notice.

8. The notice that is alleged tohave been served by the landlord onDharamdas is Ex. 4 on record and it isdated 25-1-67. Learned counsel submitted that this notice had not been servedon Dharamdas. It purports to have beensigned by Permanand, one of the legalrepresentatives of Dharamdas. But inthe first place, according to learnedcounsel, the plaintiff has failed to proveby reliable evidence that Permanand wasthe person who received the notice andin the alternative it was submitted thateven if Permanand can be held to havereceived the notice such a receipt by himwould not be valid in the eye of law, asaccording to plaintiff's evidence., thenotice Ex. 4 was receivedby Permanand not at the housewhere Dharamdas resided, but at anotherplace namely, at the shop of Permanandin another locality. Such a service, according to learned counsel, was not validaccording to the provisions of Section 106of the Transfer of Property Act. It wasnext submitted that the notice Ex. 4 related only to a part of the tenanted premises and was consequently bad, as thetenancy could not be split up. It has beenpointed out that the notice was only inrespect of the second floor, but it is established by documentary evidence thatbesides the apartment on the secondfloor the tenant was having in his lawful occupation the third floor as wellwhich consisted of a covered verandah.On the same ground it is urged that thesuit for eviction from the part of the premises was not maintainable. Learnedcounsel cited Manmatha Pal v. SaradaProsad AIR 1939 Cal 651 in support ofhis contention. As regards the mode ofservice of notice, learned counsel invited attention to Harihar Banerji v. Ramshashi Roy AIR 1913 PC 102, Learnedcounsel for the appellant further argued that issue No. 7 relating to thejurisdiction of the court Was wronglydecided in that the notification definingthe jurisdictions of the court of MunsifCity (West) and Munsif City (East) wasnot correctly applied According to learned counsel, the learned Munsif, who triedthe suit, had no territorial jurisdictionin the matter. Learned counsel furthersought to challenge the findings of thelearned Additional District Judge bothregarding the default in the payment ofrent as well as about the bona fidepersonal necessity of the landlord.

9. As I have already observed, the question just mentioned would not arise in the event of the notice regarding termination of the tenancy being found valid. Now so far as the service of the notice terminating the tenancy is concerned it is a question of fact Whether the notice was received by Permanand and in token of it he signed the postal receipt Ex. 2. Kanhaiyalal P. W. 1, the Postman was examined on this point. Both the courts have believed his statement., It is, therefore, not open to learned counsel for the appellant to question the correctness of this finding. Even so when the statement was read over to me. I did not find anything improbable in what Kanhaiyalal had stated. It is true in his examination-in-chief Kanhaiyalal stated that he went to Dharamadas's house where his son Permanand was also there and as the hands of Dharamdas were shaking the notice was accepted by Permanand and In this cross-examination he stated that the notice was accepted by Permanand at his shop. It is remarkable that the attention of the witness was not drawn to this apparent contradiction in his statement which ought to have been done. Any way, it may be due to Kanhaiyalal's forgetfulness that the discrepancy in the two portions of the statement has crept in. Be that as it may. there is no reason to discard the testimony of Kanhaiyalal regarding the fact that the acknowledgment receipt Ex-2 bears the signatures of Permanand. Permanand had not denied his signatures in his examination-in-chief but when cross-examined by the plaintiff he had denied his signatures on Ex.-2. Nevertheless he has not examined any handwriting expert for showing that Ex.-2 did not bear the signatures of Permanand. In the circumstances the finding of fact cannot be said to be vitiated by any error of law.

10. The next question that calls for consideration is whether the notice could have been delivered to Pormanand, Dharamdas's son instead of Dharamdas himself and that too at Permanand's shop and not at the house of Dharamdas. Section 106 of the Transfer of Property Act reads as follows:--

'Section 106. Duration of certain leases in absence of written contract, or local usage. In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes 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.

Every notice under this section must be in writing signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.' There are two modes in which a notice terminating the tenancy can be served; the first one is that of sending it to the party by post and the second mode is by tendering or delivering personally to such party or to one of his family or servants at his residence or if such tender or delivery is not possible, affixing to a conspicuous part of the property. In other word according to the plain language of this section it may be sent by post to the party or may be tendered or delivered personally in the manner indicated in the section. It is not right in mv opinion to read the requirements of the second mode into the first mode of sending the notice by post. The section does not lay down how the postman is to deliver the notice to the addressee. That is a matter that will be governed by the relevant rules of the Post Office as to how letters or registered letters are to be delivered by the postman. Any way, from the statement of Kanhaiyalal it is clear that he first went to the house of Dharamdas and offered the registered letter to him and it was at the behest of none other than Dharamdas that he carried the registered letter to his son Pormanand at his shop and the same was delivered to Permanand. Therefore, in such a case it cannot be held that the notice was not sent by post to Dharamdas or for that matter not tendered to him by the postman. It was undoubtedly tendered to him by the postman, but the actual delivery was made by the postman to Dharamdas's son on his request. There is, therefore, no flaw in the mode of service of notice through post Even in AIR 1918 PC 102 their Lordships inter alia, observed:--

'But it is an entire mistake to suppose that the addressee must sign the receipt for a registered letter himself or that he cannot do so by the band of another person, or that if another person does sign it on the addressee's behalf the presumption is thai it never was delivered to the addresser himself mediately of immediately For instance', if a servant in the addressee's house saw a notice handed in by the postman carried to the addressee, and handed to him that servant could certify that it was delivered to his master and could, if requested by the master, sign the receipt on the letter's behalf, though he was no the agent of the master authorised to take delivery on his. the master's behalf.'

In view of the above observations when the registered letter was first tendered to Dharamdas and at his behest was carried to Permanand and then it was accepted by him the letter shall be deemed to have been deliverd to Dharamdas. Learned counsel wanted to rely on the following observations in this judgment--

'The personal tender 'or delivery of the notice may take place anywhere; the vicarious tender or delivery must take place at the residence of the person intended to be bound by the notice.'

These observations, in my humble view,relate to the second mode of servicenamely, that of personal delivery throughmeans other than that of sending thenotice by post. In the present case asthe registered notice was sent by postat the correct address of Dharamdas andwas eventually delivered to this sonPermanand and which was, as per thepostman, according to the behest ofDharamdas the service of the notice wasgood.

11. I may next turn to the other argument whether the notice is bad because it related to only a part of the premises let out to the tenant or for that matter the suit could not have been filed only for a part of the premises let out There is no manner of doubt that the whole of the subject-matter of the tenancy is to be included in the notice terminating the tenancy as also in the suit for ejectment vide AIR 1939 Cal 651 but whether this was so is a question of fact. In the present case the learned Additional District Judge came to the conclusion, on consideration of the several documents, that as the third floor consisted only of a covered verandah and an open roof the defect cannot be considered fatal to the plaintiff's case and the plaintiff will be taken to have sued the defendant in respect of the tenancy existing between the parties. The learned Judge also referred to the defendant's stand that the third floor was also included in his tenancy and observed that in the circumstances the decree can be passed in respect of whole of the premises comprised in the tenancy. In the present case, there was no written indenture or any rent note executed by the tenant in favour of the landlord. Present is a case of a tenancy being created by operation of law. Dharamdas was a displaced person from Pakistan and was allotted a portion of an evacuee property by the Custodian of Evacuee Property in Rajasthan. The property has been later sold by the Govt. of India, This could be done after the legal ownership of the evacuee in the property was terminated with the acquisition of the property by the Government of India in accordance with the provisions of the Displaced Persons Compensation and Rehabilitation Act, 1954. In accordance with that Act, on a sale of the 'property' to a person other than the displaced person who was allotted the property tine allottee would become the tenant of the vendee. The order of allotment in favour of the defendant 'has not been produced by him. There is no doubt the report of occupation Ex. A/1, but one cannot say whether the lady really took possession of the portion of the premises allotted to her or of something more. It appears that subsequently Govind Ram the vendee had filed a suit against Dharamdas alleging that he had taken unlawful possession of the third floor. A copy of the judgment in the case has been placed on record and It is Ex. A/10. Perusal of that judgment only shows that Dharamdas was not in unlawful possession of the third storey, but it does not establish that he was in possession as an allottee or a tenant. This judgment, at any rate, shows one thing viz: that Govind Ram, the predecessor in title of the plaintiff was not regarding Dharamdas as a tenant, but as a trespasser. The other documents to which reference be made are receipts Exs. 5 and 6. They are again foils of the receipts passed by the landlord Govind Ram in favour of Dharamdas when he paid the rent for the premises. The counter-foils are signed by Dharamdas as well. These receipts show that Dharamdas1 was paying rent for the second floor and thus by operation of law as well as by attornment by paying the rent. Dharamdas was the tenant of Govind Ram in respect of the second storey.

12. The other connected question is whether the verandah or apartment on the third floor can be taken to have been included in the tenancy. It can be so taken to have been included in the tenancy if it is established that the verandah on the third floor is part and parcel of What to said to be the second storey. In other words, if it can be reached only through the apartments in the possession of the defendant in the second floor then it will be part and parcel of the second floor. On the other hand, if for reaching the verandah on the third floor one is not required to go through the apartments in occupation of the defendant in the second floor then the verandah may or may not be the part of the tenancy. Then it will be a question of fact whether in fact it was part of the tenancy. This question was not investigated from this angle. The evidence is conflicting on this point. According to the plaint in suit No. 553/56 in the court of Sub Judge First Class. Ajmer which was filed by Govind Ram against Dharamdas for fixation of standard rent (Ex. A/9 on record Govind Ram had stated thus:

'That the defendant was the custodian allottee in respect of a portion of the entire second floor consisting of one main hall, one room and one verandah and too floor consisting of one room and open compound.'

In para-3 of that plaint Govind Ram had averred that the defendant became the plaintiff's (Govind Ram) tenant by virtue of the purchase of the property by the plaintiff from the Regional Settlement Commissioner. Ajmer. The judgment Ex. A/10 delivered in the second suit goes to show that the plaintiff (Govind Ram) had himself taken the defendant No. 1. Dharamdas, to be the tenant in respect of the entire premises of the second floor with top floor. The plaintiff's predecessor-in-interest Govind Ram however, has taken somersault and alleged Dharamdas to be a trespasser on the third floor. Then even P. W.3 Ram Rakh, the husband of the plaintiff Sent. Anandi Bai, had stated that the above storey, that is what was above floor No. 2, had not been let out to Dharamdas and it was being used by all the tenants. Likewise. Govind Ram, the vendee from the Government of India, had stated as P. W. 5 that when he purchased the house the third floor was not with the defendant. In view of this conflicting evidence it cannot be held that the defendant Dharamdas was a tenant also of the third floor. How he was in possession of the third floor is a matter which may be examined elsewhere, but so far as the notice Ex. 4 is concerned it being in respect of the premises in the second floor and also the suit is in respect of the second floor it cannot be held that the tenancy had been split up both for the purposes of termination as well as for the filing of the suit.

13. With these observations I affirm the conclusion reached by the courts below that the notice Ex. 4 is not bad on the ground that it relates only to a portion of the property nor is the suit defective on this score.

14. The last point regarding want of territorial jurisdiction in court need not detain me. At the appellate stage this point has no substance whatsoever. Both the courts of Munsiff City. Aimer (West) as well as Munsif City, Ajmer (East) had inherent jurisdiction to deal with suits under the Act and therefore, lack of territorial jurisdiction in one or the other cannot be said to have resulted in any miscarriage of justice. This point is devoid of any force.

15. The appeal has thus no force and it is consequently hereby dismissed with costs. Three months' time is allowed to the tenant to vacate the suit premises, but this shall be subject to the condition that ho pays all the arrears of rent, if any, within one month from today and then further goes on paying compensation at the rate of rent month by month by the 15th of the following month till he vacates the suit premises.

16. Learned counsel orally prayed for grant of leave to appeal under Section 18 of the Rajasthan High Court Ordinance. 1949, but in the circumstances of the case the leave to appeal is refused.


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