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Dr. Harumal and ors. Vs. Smt. Sahjadi Bibi - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 138 of 1965 and Second Appeal No. 160 of 1967
Judge
Reported in1969()WLN429
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100; Transfer of Property Act, 1882 - Sections 106 and 109; Administration of Evacuee Property Act, 1950 - Sections 4(2), 9, 12 and 56(2); Administration of Evacuee Property Rules - Rule 14(2) and 14(4)
AppellantDr. Harumal and ors.
RespondentSmt. Sahjadi Bibi
Appellant Advocate H.C. Jain, Adv.
Respondent Advocate K.K.D. Badgel, Adv.
DispositionAppeals allowed
Cases ReferredSmt. Chhoti Dei v. Gangadhar Misra
Excerpt:
.....the lessor as to the property or part transferred. thus there is no force in the contention of the learned counsel for the respondent that because his client purchased the property in question on 26-9-53, therefore, the appellants' tenancy must also be deemed to commence from 26-9-53. i am clearly of the opinion that the date of the commencement of the tenancy of the appellants will be considered to be that date on which the appellants were admitted as truants by the custodian of evacuee property. there is no dispute between the parties that the appellants were admitted as tenants by the custodian of evacuee property on 28th january, 1948. the notice given by the respondent to the appellants thus did not expire with the end of the month of tenancy as required under section 106 of the..........judgment.2. dr. harumal and the deceased sugnomal were admitted as tenants by the custodian of evacuee property on 28-1-48 in the second and third storeys respectively of the house in question. the rent settled with dr. haru mal was rs. 3 per month and that with sugnomal rs. 6/8/- per month. the plaintiff sahjadi bibi purchased this property from the competent officer, ajmer., on 26-9-53, and, thereafter on 18-11-53 she gave notices to both the tenants to vacate the property as the same was required by her for personal use and occupation. by these notices, the tenancy was terminated from the midnight of 25th december, 1953. since the tenants failed to quit, the respondent filed the suits against both of them for ejectment and arrears of rent in the court of the munsif, ajmer.the.....
Judgment:

C.M. Lodha, J.

1. These are two connected appeals arising out of two suits for ejectment instituted by the landlord Smt. Sahiadi Bibi against Dr. Harumal and Sugnomal (deceased) respectively. It appears that Sugnornal died during the pendency of the suit and is now represented by his heirs, Sita Devi and others. The facts and the questions of law involved in both the appeals are identical and, therefore, it would be convenient to decide them by a common judgment.

2. Dr. Harumal and the deceased Sugnomal were admitted as tenants by the Custodian of Evacuee Property on 28-1-48 in the Second and third storeys respectively of the house in question. The rent settled with Dr. Haru Mal was Rs. 3 per month and that with Sugnomal Rs. 6/8/- per month. The plaintiff Sahjadi Bibi purchased this property from the Competent Officer, Ajmer., on 26-9-53, and, thereafter on 18-11-53 she gave notices to both the tenants to vacate the property as the same was required by her for personal use and occupation. By these notices, the tenancy was terminated from the midnight of 25th December, 1953. Since the tenants failed to quit, the respondent filed the suits against both of them for ejectment and arrears of rent in the court of the Munsif, Ajmer.

The tenants resisted the plaintiffs suit inter alia on the ground that notice of termination of tenancy was not in order as it did not expire with the end of the month of the tenancy. This objection found favour with the Munsif, Ajmer and accordingly the suits for ejectment were dismissed. The plaintiff filed appeals in the court of District Judge, Ajmer, in both the cases. The appeals were transferred in the court of Civil Judge, Ajmer, who held that the notices for ejectment were valid. Consequently the appeals were allowed and the suits for ejectment were decreed. It may be relevant here to state that all the issues in both the cases, except issue No. 5, refer to the question of property having been damaged by the tenants and issue No. 6 regarding the validity of the notices, were decided in favour of the plaintiff by the trial court and the suit for ejectment was dismissed only on the ground of bad notice. In the first appellate court only the question of validity of notice was argued and so also before me. The only point, therefore, I am called upon to decide is whether the notice given by the plaintiff landlord in each of the two cases terminating the tenancy from the midnight of 25th December, 1953, is valid.

3. Learned counsel for the appellant has submitted that the tenancy in each case commenced from 28th January, 1948 and, therefore, the notice should have expired with the end of the month of the tenancy that is on 28th. The suits were instituted on 28th December, 1953. It is urged that the plaintiffs case in the plaint was that the defendant was admitted as a tenant from 28-1-48 and consequently the tenancy should have been terminated with the end of the month of the tenancy. On the other hand learned counsel for the respondent has supported the judgment of the lower appellate court and has urged that the tenancy was at will and it was not necessary to serve a notice expiring with the end of the month of the tenancy. In the alternative it is argued that the tenancy between the plaintiff and the defendants was created only when the plaintiff purchased the property from the Competent Officer on 26-9-53 and looked at from that point of view, the notice is valid.

4. I may observe here that the learned counsel for the respondent also raised a preliminary objection that no second appeal lay in these cases, but subsequently gave it up when the learned counsel for the appellant drew his attention to the following decisions of this Court:--

(1) Anand Singh v. Chandmal, 1960 Raj LW 676;

(2) Balchand v. Smt. Dhan Kanwar, 1960 Raj L W 670;

(3) Shivkumar v. Ballabhdass, 1957 Rai LW 497; and

(4) Gordhan Lal v. Nathu Lal, 1955 Rai LW 520.

5. The only point, therefore, which I am called upon to decide is whether the notice of termination of tenancy, which is exactly the same in both the cases is valid and proper.

6. The learned Civil Judge, Ajmer, has held that the Custodian of Evacuee Property was not bound to serve a notice under Section 106 of the Transfer of Property Act iq view of the provisions of Section 4 Sub-section (2), Section 9 and Section 12 of the Administration of Evacuee Property Act, 1950 (which will hereinafter be called the Act), It has been held by the learned Civil Judge that the appellant was a tenant at will and his tenancy was not a monthly tenancy and consequently it was not necessary for the plaintiff who purchased the property from the Custodian Department to have complied with all the formalities of notice under Section 106 of the Transfer of Property Act. In this view of the matter the learned Civil Judge, decreed the plaintiffs suit for ejectment also.

7. I may first deal with the alternative argument advanced by the learned counsel for the respondent that the tenancy between the appellants and the respondent commenced on 26-9-53 when the plaintiff-respondent purchased the property in question from the Competent Officer and therefore the notice expiring on 26th December, 1953, was valid. In support of his argument learned counsel for the respondent has relied upon Kartar Singh v. Barkat Ram, (1965) 67 Pun LR 243. In my opinion this decision does not help the respondent at all. There was no question involved in this case as to the commencement of the tenancy. It was simply observed in that case that on the date of the purchase of the property by the respondent, the appellant became his tenant. This does not mean that the tenancy of the tenant will also be deemed to commence from the date of the purchase of the property by the respondent.

On the other hand learned counsel for the appellants has relied upon Baburam v. Narayan Dass, 1959 Eaj LW 81. In Baburam's case, 1959 Raj LW 81 the plaintiff Narayan Dass purchased the property occupied by the defendant as a tenant on 4-7-50 from Mangilal Ballabhdas and thereafter gave notice dated 23-12-54 for ejectment under Section 106 of the Transfer of Property Act. According to the defendant tenant the tenancy between him and Mangilal Ballabhdas commenced from the first of the month according to the Gregorian Calendar. It was observed that 'if the tenancy between Babulal and Mangilal Ballabhdas commenced on the first of the calendar month, a new tenancy in favour of Narayan Dass could not be created on 4-7-50 simply because the property was transferred to him on that date.' It was further observed that 'if Narayan Dass wanted to terminate the tenancy, he should have given a notice expiring with the end of the month of the tenancy according to the contract between Mangilal Ballabhdas on the one hand and Baburam on the other.' Thus this casa clearly supports the contention of the counsel for the appellants.

In this connection I may also refer to Section 109 of the Transfer of Property Act, which clearly lays down that if the lessor transfers the property leased, or any part of interest therein, the transferee, in the absence of contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred. It further lays down that the lessor shall not, by reason only of such transfer, cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him. It is thus quite clear from the provisions of this section that the plaintiff after the transfer of property in her favour possesses only those rights which were possessed earlier by the Custodian of Evacuee Property and was subject to all those liabilities to which the Custodian of Evacuee Property was subject before the transfer. Therefore, if the plaintiff wanted to terminate the tenancy, she should have given the notice according to the contract between the Custodian of Evacuee Property on the one hand and the appellants-defendants on the other. Thus there is no force in the contention of the learned counsel for the respondent that because his client purchased the property in question on 26-9-53, therefore, the appellants' tenancy must also be deemed to commence from 26-9-53. I am clearly of the opinion that the date of the commencement of the tenancy of the appellants will be considered to be that date on which the appellants were admitted as truants by the Custodian of Evacuee Property.

There is no dispute between the parties that the appellants were admitted as tenants by the Custodian of Evacuee Property on 28th January, 1948. The notice given by the respondent to the appellants thus did not expire with the end of the month of tenancy as required under Section 106 of the Transfer of Property Act and consequently if Section 106 of the Transfer of Property Act applies to the present case, there is no escape from the conclusion that the notice given by the plaintiff-respondent for terminating the tenancy was bad and the suits for ejectment must fail on that account.

8. The learned Civil Judge, as already pointed above, has held that the appellants were tenants at will of the Custodian of Evacuee Property and, therefore, it was not necessary for the Custodian to give notice as required by Section 106 of the Transfer of Property Act. If this is so, then the plaintiff is also not required to give a notice strictly according to Section 106 of the Transfer of Property Act as she has only stepped into the shoes of the previous landlord, viz. the Custodian. It is, therefore, necessary to determine as to what was the nature of tenancy of the appellants qua the Custodian of Evacuee Property.

9. Learned counsel for the appellants has argued that there is nothing on the record to show that the appellants were tenants at will of the Custodian of Evacuee Property. It is urged that a tenancy at will is terminable by either party and the demand by the landlord for possession is sufficient. It was held in Ramnarain v. Kishorelal, AIR 1964 Raj 79 that where the tenants undertake to give vacant possession of the premises whenever the landlords may desire them to do so the tenancy so created is a tenancy-at-will. In a case like that, no notice within the meaning of Section 106 of the Transfer of Property Act is at all necessary to terminate the tenancy.

It would, therefore, be necessary to find out as to what was the contract between the parties in this respect, that is, whether the appellants had undertaken to give vacant possession of the premises to the Custodian of Evacuee Property whenever the latter may have desired them to do so? I may state at once that there is not an iota of evidence from either side as to what was the contract in this respect. In the notice itself in each of the two cases the defendants were not taken to be tenants-at-will. It was alleged that they were tenants from 28-1-48 and paying monthly rent. There are exactly the same allegations in the plaint also.

Learned counsel for the appellants has argued that the plaintiff's allegation is that monthly rent was paid and no case of tenancy-at-will was ever alleged by her and, therefore. Section 106 of the Transfer of Property Act comes into operation. In support of his contention learned counsel for the appellants has relied on Smt. Chhoti Dei v. Gangadhar Misra, AIR 1953 Orissa 245. The only answer which (he learned counsel for the respondent furnished was that irrespective of the question of any contract, the Custodian of Evacuee Property by virtue of the powers conferred upon him by the Administration of Evacuee Property Act, was competent to terminate the tenancy of the appellants whenever he desired to do so, and, therefore, the appellants must he deemed to be tenants-at-will. The same is more or less the reasoning of the first appellate court, which has referred to Section 4(2), Section 9 and Section 12 of the Act in this connection.

10. For a proper appreciation of the argument of the learned counsel for the respondent, it would be necessary to examine the relevant provisions of the Administration of Evacuee Property Act. Section 4 reads as below:--

'4. Act to override other laws.-- (1) The provisions of this Act and of the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law.

(2) For the removal of doubts, it is hereby declared that nothing in any other law controlling the rents of, or eviction from, any property shall apply, or be deemed ever to have applied, to evacuee property.'

11. Then we come to Section 9, which reads as under:--

'9. Power of Custodian to take possession of evacuee property vested in him.-- If any person in possession of any evacuee property refuses or fails on demand to surrender possession thereof to the Custodian or to any person duly authorised by him in this behalf, the Custodian may use or cause to be used such force as may be necessary for taking possession of such property and may, for this purpose, after giving reasonable warning and facility to any women not appearing in public to withdraw, remove or break open any lock, bolt or any door or to do any other act necessary for the said purpose.'

12. Section 12 on which great deal of reliance has been placed by the learned counsel for the respondent prescribes the powers of the Custodian to vary or cancel leases or allotments of evacuee property. It may be reproduced here:--

'12. Power to vary or cancel leases or allotments of evacuee property.-- (11) Notwithstanding anything contained in any other law for the time being in force the Custodian may cancel any allotment or terminate any lease or amend the terms of any lease or arrangement under which any evacuee property is held or occupied by a person, whether such allotment, lease or arrangement was granted or entered into before or after the commencement of this Act.

Provided that in the case of any lease granted before the 4th day of August, 1947, the Custodian shall not exercise any of the powers conferred upon him under this subsection unless he is satisfied that the lessee--

(a) has sublet, assigned or otherwise parted with the possession of the whole or any part of the property leased to him; or

(b) has used or is using such property for a purpose other than that for which it was leased to him; or

(c) has failed to pay rent in accordance with the terms of the lease.

Explanation.-- In this Sub-section 'lease' includes a lease granted by the Custodian and 'agreement' includes an agreement entered into by the Custodian.

(2) Where by reason of any action taken under Sub-section (1) any person has ceased to be entitled to possession of any evacuee property, he shall on demand by the Custodian surrender possession of such property, to the Custodian or to any person duly authorised bv him in this behalf.

(3) If any person fails to surrender possession of any property on demand under Sub-section (2), the Custodian may notwithstanding to the contrary contained in any olher law for the time being in force, eject such person and take possession of such property in the manner provided in Section 9.'

13. In view of the aforesaid provisions the learned Civil Judge has come to the conclusion that it was not necessary for the Custodian to give notice under Section 106 of the Transfer of Property Act before varying or cancelling the lease. It may, however, be stated here that even the Custodian has not been given an unrestricted power to cancel any allotment or terminate any lease at his sweet will but is required to follow the procedure prescribed in the Rules made under Section 56(2) of the Act, which reads as under :--

'56. Power to make rules.-- (2) In particular, and without prejudice to the generality of the foregoing power such rules may provide for all or any of the following matters namely:--

(i) the circumstances in which leases and allotment may be cancelled or terminated or the terms of any lease or arrangement varied;'

Sub-rules (2) and (4) of Rule 14 of the Administration of Evacuee Property Rules further provide that in case of a lease of allotment granted by the Custodian himself, the Custodian may evict a person on any ground justifying eviction of a tenant under any law relating to the Control of Rents for the time being in force in the State concerned, or for any violation of the conditions of lease or allotment. But before cancelling, or varying the terms of a lease and before evicting a lessee the Custodian shall serve the person or persons concerned with a notice to show cause against the order proposed to be made and shall afford him a reasonable opportunity of being heard.

14. From the aforesaid provisions of the Act as well as the Rules made thereunder, it would be amply clear that certain statutory powers have been conferred upon the Custodian of Evacuee Property for management of the property, which also include power of terminating, cancelling or otherwise amending the terms of the tenancy. I find myself unable to accept the contention of the learned counsel for the respondent that all these powers with respect to the property in question, which the Custodian was competent to exercise stood transferred to the purchaser that is the plaintiff. These are administrative powers vested in the Custodian by virtue of his office and from the provisions referred to above, it cannot be concluded that there was a contract between the Custodian of the Evacuee Property on the one hand and the defendants-appellants on the other that the latter undertook to give vacant possession of the premises whenever the former may desire them to do so. It is noteworthy that even the Custodian is bound to serve the lessees concerned with a notice to show cause against the order of eviction proposed to be made by him and to give them an opportunity of hearing. It is idle to argue that these powers stood transferred to the plaintiff also when she purchased the property.

15. After a careful consideration of the rival contentions advanced on behalf of both the parties, I am clearly of opinion that the appellants are not tenants-at-will and, therefore, a notice of ejectment as required by Section 106 of the Transfer of Property Act was necessary. The notices in both the cases admittedly did not expire with the end of the month of the tenancy. The tenancy has been terminated from the midnight of 25th whereas it should have been from the midnight of 28th. To my mind it appears that the respondent or whosoever was his adviser laboured under a misapprehension that since she had purchased the property on 26th September, 1953, the tenancy of the appellant shall also be deemed to be commenced from that date. This position, as I have already stated above, is incorrect. Thus there is no escape from the conclusion that the notices served by the respondent on the appellants were not according to Section 106 of the Transfer of Property Act and were, therefore, illegal and void. The learned Civil Judge was, therefore, in error in decreeing the plaintiff's suit for ejectment.

16. I, therefore, allow both the appeals, set aside the judgments and decrees passed in both cases by the learned Civil Judge, Ajmer, and restore the judgments and decrees of the Munsif Ajmer, District Ajmer, and thereby dismiss the plaintiff's suits for ejectment against the appellants. Since the appeals have succeeded on a technical point I hereby direct that both the parties shall bear their own costs throughout.


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