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Gordhan Vs. Ali Bux - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 432 of 1973
Judge
Reported inAIR1981Raj206; 1981()WLN156
ActsCode of Civil Procedure (CPC) , 1908 - Sections 96 and 107 - Order 2, Rule 2 - Order 6, Rule 2; Code of Criminal Procedure (CrPC) , 1947 - Sections 386; Transfer of Property Act, 1882 - Sections 106, 107, 111 and 116; Registration Act, 1908 - Sections 2(7) and 17
AppellantGordhan
RespondentAli Bux
Appellant Advocate Rajendra Mehta, Adv.
Respondent Advocate M.L. Shrimali, Adv.
DispositionAppeal allowed
Cases ReferredIn Bhawanji v. Himatlal
Excerpt:
.....transfer of property act - sections 106, 107 & 116--tenant--tenancy for a fixed term of one year--tenant holding over after fixed period--held, he is a tenant at sufferance and no notice under section 106 was required--demand for possession was sufficient.;no notice under section 106 of the transfer of property act was required to be given in the present case, as the tenancy was for the fixed term of one year and after the expiry of the period of one year, the position of the defendant was merely that of a tenant at sufferance.;the defendant in the present case did not become a tenant holding over within the meaning of section 116 of the transfer of property act, but he was merely a tenant at sufferance and a mere demand for possession or intimation to him to hand over possession..........the rate of rs. 25/- per month from april 1, 1967.5. the defendant filed am appeal and the learned civil judge went into the question of title, which was neither made the subject-matter of an issue between the parties nor was relevant in a suit for recovery of arrears at rent and for ejectment of a tenant. the first appellate court, holding that the defendant was himself the owner of the property in dispute, allowed the appeal and dismissed the plaintiff's suit.6. in this appeal, the finding of the first appellate court in respect of issue no. 1 has been challenged and it has been argued by the learned counsel for the appellant that the question of title was foreign to the suit and should not have been taken into consideration, as there was neither any issue nor evidence was led by the.....
Judgment:

Dwarka Prasad, J.

1. This is a second appeal in a suit for ejectment and for recovery at arrears of rent which was decreed by the trial Court but was dismissed by the first appellate Court.

2. The plaintiff came to the Court with the allegation and that premises in dispute, which are situated at Marwar-Mundwa, were given on rent by the plaintiff to the defendant Ali Bux under an oral lease for one year on March 2, 1966 and Rs. 300/- per year was the rent fixed between the parties. It was alleged that the Tenancy came to an end on the expiry of the period of one year but the defendant did not vacate the premises. A notice was given by the plaintiff on Match 16, 1967 asking the defendant-tenant to vacate the premises up to March 31, 1967.

3. The defendant's case was that the property in dispute belonged to Hindustan Iron and Steel Works and the defendant was the owner of the aforesaid firm as also of the property in dispute. According to the defendant, he was m occupation of the disputed premises for the last 15 years and that he bad made constructions on the open land after obtaining a 'sanad' on June 22, 1965. The notice given by the plaintiff was alleged to be illegal. Thus in substance, the case of the defendant was that there was no relationship of landlord and tenant between the parties.

4. The rent note or 'kabuliyat' executed by the defendant in favour of the plaintiff has been, produced and was marked as Exhibit 1 and was held to be proved by the trial Court The trial Court, therefore, came to the conclusion that the relationship of landlord and tenant was proved and as the tenancy was for a period of one year, no notice to quit was necessary because after the expiry of the aforesaid period of one year, the defendant remained only as a tenant at sufferance. The plaintiffs suit was accordingly decreed for ejectment of the tenant and for recovery of Rs. 9/- towards arrears of rent and for future mesne profits at the rate of Rs. 25/- per month from April 1, 1967.

5. The defendant filed am appeal and the learned Civil Judge went into the question of title, which was neither made the subject-matter of an issue between the parties nor was relevant in a suit for recovery of arrears at rent and for ejectment of a tenant. The first appellate Court, holding that the defendant was himself the owner of the property in dispute, allowed the appeal and dismissed the plaintiff's suit.

6. In this appeal, the finding of the first appellate Court in respect of issue No. 1 has been challenged and it has been argued by the learned counsel for the appellant that the question of title was foreign to the suit and should not have been taken into consideration, as there was neither any issue nor evidence was led by the parties in respect thereof. It was also argued that the relationship of landlord and tenant was proved by the evidence on record, including the 'kabuliyat' Ext. 1.

7. I must observe, before proceeding to consider the merits of the case, that the learned Civil Judge has referred to the trial Court viz. Munsiff, Nagaur in extremely derogatory terms, which is something unfamiliar in judicial pronouncements. The presiding officers of judicial Courts are expected to be sober and dignified in their expression, even in the criticism of orders passed by subordinate judicial officers. To say that 'the learned Munsiff does not understand even the bare broad ABC of law' or 'such method of disposal of cases is reprehensible' cannot be said to be either proper or discreet expressions while referring to a fellow judicial officer, even though subordinate. It must be emphasised that judicial pronouncements must be couched in rather dignified and respectful language, even while referring to inferior or subordinate Courts. Though disagreement may be expressed firmly, freely and without fear, yet it should not exhibit any lack of decency. The Code of Conduct which should invariably be adhered to by persons adorning high judicial offices, includes the maintenance of high traditions and the expression of mutual respect, tolerance, and proper appreciation of the point of view of the other officer of the Court, may he be a lawyer or a judicial officer of subordinate or equal rank. What I fail to understand is whether it was not possible for the learned Civil Judge to express his disagreement with the view taken by the learned Munsiff, without condemning the subordinate officer in a most undignified manner. The learned Civil Judge appears to be in the habit of using superlative terms in expressing himself, even while condemning the manner in which the learned Munsiff dealt with the case. However, merely because the learned Civil Judge disagreed with the finding arrived at by the learned Munsiff on Issue No. 1, the first appellate Court should not have proceeded to impute motives to or express lack of bona fides in the subordinate judicial officer by observing that 'he has deliberately thought to somehow pass a decree in the teeth of all weight and force of probability, in an arbitrary manner', and 'that the learned Munsiff does not at all make any efforts required of his office in the secred and serious discharge of his official duties'. Disagreement with the finding of subordinate Court should be based more on law and reason rather than on personal denunciation of the presiding officer of the inferior Court. An appellate Court is competent to find fault with the finding arrived at by the lower Court, but there is no authority vested in it nor there is any justification for its denouncing the presiding officer of the subordinate Court as a person.

8. After reading the judgments of the two Courts below, I must confess that the trial Court has written a better and a well-reasoned judgment while the first appellate Court has given expression to sporadic fits of anger, for which apparently there appears no plausible basis. There is no doubt that in the instant case there was no document evidencing the contract of lease, within the meaning of Section 107 of the Transfer of Property Act, because such a document must be a bilateral one, executed by both the lessor and the lessee and the lease must be made by a registered instrument The lease alleged by the plaintiff in the present case was for a period of one year, the same could be entered into by an oral agreement accompanied by delivery of possession, as provided in Section 107 of the Transfer of Property Act, which runs as under:

'107. A lease of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.

All other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.

Where a lease of immoveable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee.'

9. The alleged lease, in the present case, was neither from year to year nor it was for a term exceeding one year nor it was a contract of lease reserving yearly rent, as rent was payable on the expiry of three months. Thus the lease in the present case clearly fell under the second paragraph of Section 107 of the Transfer of Property Act, within the expression 'all other leases' and thus could be entered into by oral agreement accompanied by delivery of possession. It is because of this reason that in the plaint the lease has been described as oral. I fail to understand as to how the learned Civil Judge tried to find fault with the plaintiffs case merely because he alleged that the tenancy was oral and yet he produced a document which is a 'kabuliyat' or a rent note, as it has been unilaterally executed by the lessee only. Perhaps the learned Civil Judge did not properly comprehend the nature of the document produced by the plaintiff. A bare reading of the document Ext. 1 shows that it is a unilateral document executed by the transferee alone and not by the transferor, and as such it cannot be put in the same category as a lease. Section 2(7) of the Indian Registration Act, 1908 includes a counterpart, 'kabuliyat', an undertaking to cultivate or occupy, and an agreement to lease within the definition of 'lease', applicable to that Act. Thus a 'kabuliyat', evidencing a lease from year to year or for any term exceeding one year or reserving an yearly rent, though a unilateral document, yet it would be compulsorily registerable under Section 17 of the Registration Act, although such a document is not required to be registered under Section 107 of the Transfer of Property Act. However, in the present case, as the 'kabuliyat' Ext. 1 evidencing the oral agreement of lease between the parties, is not in respect of a lease from year to year or for any term exceeding one year or reserving an yearly rent, as such it is not required to be registered, more so because the 'kabuliyat' or the rent note is unilateral document and does not fall within the third clause of Section 107 of the Transfer of Property Act. Thus the rent note or the 'kabuliyat' is not an instrument answering the description of 'lease', as contained in Section 107 of the Transfer of Property Act. Nonetheless it may require registration if it is executed for a period or is of the nature stated in Section 17(1)(d) of the Registration Act, as it would then be a 'lease' for the purposes of the Registration Act, by virtue of the definition contained in Section 2(7) of the said Act. Merely because a rent note executed by the lessee alone has been produced in the case, the same is not in any manner contradictory of the description of the contract of tenancy between the parties as oral. It is unfortunate that the learned Civil Judge failed to consider the provisions of Section 107 of the Transfer of Property Act, which would have made it abundantly clear that there is no conflict in describing the lease as oral and at the same time producing a 'kabuliyat' or a rent note executed by the lessee alone, in support of the alleged oral contract of lease. Another criticism levelled by the learned Civil Judge was that the written document was not referred to in the plaint and that there was variation between the pleading and the evidence or proof relied upon by the plaintiff. The learned Civil Judge failed to take the trouble of discovering that the rent note Ext. 1 was produced by the plaintiff in the trial Court on April 29, 1967 along with the plaint. The documents which the plaintiff produces along with the plaint form the basis of the plaintiff's case and the mere absence of reference to the alleged rent note Ext. 1 in the plaint, while the same was produced in the trial Court along with the plaint on the very day of the institution of the suit, would not constitute any variation between pleading and proof. The rent note Ext. 1 was on the record of the suit from the very beginning and the defendant must have been fully aware of its presence and he was entitled to lead whatever evidence he might have in his possession or power, to disprove the same.

10. Learned Civil Judge further went on to observe that the signatures purported to be that of the defendant on the rent note Ext. 1 did not tally with any of the admitted signatures of the defendant on the record. This bald and sweeping statement cannot be accepted after a careful perusal of the record. I must observe that the signatures which purport to be that of the defendant on the rent note Ext. 1 tally considerably with the signatures of the defendant on the Vakalatnamas filed in the trial Court. Learned Civil Judge has failed to refer to any document on record with which he compared the signatures, purporting to be that of the defendant on the rent note Ext. 1. As a matter of fact, there are two Vakalatnamas filed by the defendant which are on the record of the trial Court: one in favour of Shri Damodardas Acharya, Advocate, which was filed on March 27. 1968 and another in favour of Shri Madanlal, Advocate which bears the date March 28, 1968. The signatures of the defendant on both these Vakalatnamas favourably agree with the alleged signatures of the defendant on the rent note Ext. 1. I may also draw attention to the signatures of the defendant on the application dated March 28, 1968 under Order 9, Rule 13, Code of Civil Procedure, and the affidavit filed by the defendant in support of the aforesaid application, which appears at page B/26/3 of the record. This affidavit contains the signatures of the defendant at three places and the application referred to above, which is at page B/26/1 contains the signatures of the defendant on the second page. All these four signatures are very similar to the signatures purporting to be those of the defendant on the rent note Ext. 1. If the signatures of the defendant on the rent note Ext. 1 and the documents referred to above and on some other documents, including the list of witnesses tiled by the defendant on Sep. 18, 1969 and affidavit of the defendant of the same date, his application dated May 30, 1972 and the affidavit dated May 30, 1972, are taken into consideration, I must observe that there is a strong and striking resemblance between the signatures of the defendant on the documents referred to above and those appearing at the foot of the rent deed Ext. 1. I am, therefore, unable to agree with the learned Civil Judge on this question.

11. Then the learned Civil Judge proceeded to observe that the trial Court had distorted and misread the evidence. The criticism on this score is also without any foundation. Ram Prasad, according to the defendant, was a stranger and the observation of the learned trial Court that Ram Prasad had no animus against the defendant appears to be justified, as there is nothing on the record to show that there was any il!-wi!l or bad feeling between the defendant and Ram Prasad. There is no doubt that the rent note Ext. 1 bears the seal of the defendant's firm and the defendant has signed as proprietor of the firm at two places on the back of rent note Ext. 1, It is difficult to understand as to why the learned Civil Judge thought that parting of the seal was of no consequence. To get a forged seal prepared and then to forge the signatures of the defendant not at one but at two places on the rent note Ext. 1, is rather an unbelievable story. The trial Court was justified in placing reliance on the testimony of the plaintiff and his witness Ram Prasad in support of the allegation that the rent note Ext. 1 was duly executed by the defendant. The criticism of the plaintiff and his witness Ram Prasad by the learned Civil Judge is baseless and without any reason and the manner in which the evidence of these two witnesses has been dealt with by the learned Civil Judge cannot be upheld as no reasonable person can come to the conclusion arrived at by him on the basis of the aforesaid evidence. The consideration of the entire material on record by the learned Civil lodge is clearly perverse and is vitiated on this ground.

12. In a suit squarely based on the allegation of tenancy and the relationship of landlord and tenant, any considerations of ownership or title is foreign, unless such title is pleaded and is put into an issue, so that the parties may be able to lead evidence in respect thereof. In the present case, no issue about title was framed by the trial Court and the only substantial issue framed related to the question of tenancy. I may observe that a lawful and just case cannot be allowed to be defeated merely by denouncing the plaintiff and the trial Court and by using high sounding words of derogatory nature. Whether the plaintiff's case has been proved or not is a question requiring proper consideration of the evidence on record and merely using expressions such as 'it was tarred with black on the white pages', without advancing any plausible reason in support thereof, could not justify the throwing away of the plaintiffs claim. I, therefore, find myself in agreement with the decision of the learned Munsiff on issue No. 1 and set aside the finding recorded by the learned Civil Judge in respect of the said issue, as it is perverse, against the evidence on record and appears to have been recorded merely on the basis of some prejudice.

13. The other issue which has been raised in the present appeal relates to the validity of the notice. The tenancy, as alleged and proved by the plaintiff, was foe one year certain, and as such it came to an end on the expiry of the period of one year on March 1, 1967. No notice was, therefore, necessary to be given in the present case, as thereafter the defendant was merely a tenant at sufferance. A notice was, however, given by the plaintiff on March 16, 1967 which was served on the defendant on the next day and in which the defendant was required to vacate the premises up to March 31, 1967. The period of one year of the tenancy having expired, three courses were open to the plaintiff, either to get the premises vacated from the tenant; or to allow the lessee to continue as a tenant holding over; or to enter into a new contract of tenancy. Admittedly there was no new contract of tenancy entered into between the parties Section 116 of the Transfer of Property Act provides that if a lessee remains in possession of immovable property after the determination of the lease and the lessor or his legal representative accepts rent from the lessee or otherwise assents to his continuance in possession, the lease is renewed from year to year or from month to month, according to the purpose for which the property was leased, in the absence of any agreement to the contrary. In the present case, it is not alleged by the defendant that any rent was paid by him and was accepted by the lessor, the plaintiff in respect of any period after the expiry of the lease. There is also no evidence of the landlord having assented to the continuance of the defendant in possession of the premises after the expiry of the period of one year. Mere delay in taking steps to evict the tenant could not lead to an inference that the lessor assented to the continuance of the tenant nor a presumption of holding over could be drawn merely on account of service of notice to quit by the lessor, as giving of such notice does not constitute assent or recognition of tenancy.

14. It was argued by the learned counsel for the defendant that the notice given by the lessor was not valid as it did not terminate with the expiry of the month of tenancy, as required by Section 106 of the Transfer of Property Act. There can be no doubt that the notice received by the defendant on March 17, 1967 asking him to hand over possession before April I, 1967, that is, up to March 31, 1967 could not be said to be a proper notice in accordance with the provisions of Section 106 of the Transfer of Property Act, as it was neither a notice for a period of 15 days nor such a notice expired with the end of the month of tenancy. However, as I have already observed above, no notice under Section 106 of the Transfer of Property Act was required to be given in the present case, as the tenancy was for the fixed term of one year and after the expiry of the period of one year, the position of the defendant Was merely that of a tenant at sufferance.

15. In Bhawanji v. Himatlal, AIR 1972 SC 819, their Lordships of the Supreme Court clearly brought out the difference between a tenant at sufferance and a tenant holding over. It was observed in the aforesaid case as under (at p. 821):

'The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former is a tenant at sufferance in English Law and the latter a tenant holding over or a tenant at will. In view of the concluding words of Section 116 of the Transfer of Property Act, a lessee holding over is in a better position than a tenant at will. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplated is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his terra was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise.'

16. Thus it is amply clear that the defendant in the present case did not become a tenant holding over within the meaning of Section 116 of the Transfer of Property Act, but he was merely a tenant at sufferance and a mere demand for possession or intimation to him to hand over possession was sufficient, and no notice within the meaning of Section 106 of the Transfer of Property Act was required to be given to him, unless the tenancy was operative, as in the case of a tenant holding over.

17. In view of the aforesaid discussion, the appeal is allowed, the decree passed by the learned Civil Judge, Nagaur is set aside and that passed by the learned Munsiff, Nagaur is restored with costs of all the Courts.


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