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Sohan Lal Vs. Ram Dayal and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second Appeal No. 31/77
Judge
Reported in1977WLN549
AppellantSohan Lal
RespondentRam Dayal and anr.
DispositionAppeal dismissed
Cases ReferredVithaldas v. Gulam Ahmad and Anr.
Excerpt:
rajasthan court fees and suits valuation act - section 41(2)--expression 'tenant holding over' includes 'tenant at sufferance' in this provision--court fee is properly paid.;the expression 'tenant holding over' in sub-section (2) of section 41 of the act is not used in a restricted sense in which it is used in the english law. sub-section (2) of section 41 is applicable to the present suit. the two courts below have rightly held that the suit was properly valued and proper court fee was paid.;appeal dismissed with costs - - both the courts below decreed the suit for eviction as well as rent and damages holding that the valuation of the suit for the purposes of court fees was proper......of deceased kajore redeemed the mortgage on 18-1-1974. the plaintiff-respondents purchased the suit premises from pyare lal on 21.1.974 gulam abbas served a notice to the defendant informing him about the redemption of mortgage and sale of property in favour of the plaintiff-respondents vide registered notice dated 21-8-1974. the plaintiffs also served a notice to the defendant determining the tenancy. when the defendant appellant did not vacate the shop inspite of the notice, the plaintiff-respondents brought the suit against the defendant for the recovery of rs. 690/- as rent and damages and also prayed for his rejectment from the suit premises. the suit was filed in the court of munsif, bhilwara. the defendant-appellant contested the suit inter alia on the ground that the.....
Judgment:

S.N. Modi, J.

1. This is an appeal by the defendant against the judgment and decree of the District Judge. Bhilwara dated March 30, 1977 affirming the judgment and decree of the Munsif, Bhilwara.

2. The plaintiff respondents came with the case that the shop in dispute was originally owned by one Kajore who mortgaged it with Gulam Abbas on 12-11-56. The defendant was inducted as a tenant of the shop by Gulam Abbas on a monthly rent of Rs. 30/-. Pyare Lal Khateek who was legal representative of deceased Kajore redeemed the mortgage on 18-1-1974. The plaintiff-respondents purchased the suit premises from Pyare Lal on 21.1.974 Gulam Abbas served a notice to the defendant informing him about the redemption of mortgage and sale of property in favour of the plaintiff-respondents vide registered notice dated 21-8-1974. The plaintiffs also served a notice to the defendant determining the tenancy. When the defendant appellant did not vacate the shop inspite of the notice, the plaintiff-respondents brought the suit against the defendant for the recovery of Rs. 690/- as rent and damages and also prayed for his rejectment from the suit premises. The suit was filed in the court of Munsif, Bhilwara. The defendant-appellant contested the suit inter alia on the ground that the plaintiff should have paid court fee on the basis of the market value of the suit permises. I may pause to mention here that the plaintiffs paid court fees under sub Section (2) of Section 41 of the Rajasthan Court Fees and Suit Valuation Act (hereinafter referred to as the Act,) on the basis of annual rent. Both the courts below decreed the suit for eviction as well as rent and damages holding that the valuation of the suit for the purposes of court fees was proper. The defendant has now come up in second appeal in this court.

3. The only point which has been argued before me in this appeal is that the suit is not governed by sub Section (2) of Section 41 of the Act and the plaintiffs were required to pay ad valorem court fees on the market value of the shop. The said section is reproduced below for facility of reference:

Section 41 Suits between landlord and tenant (1). In the following suits between landlord and tenant in civil courts, namely:

(a)...

(b)...

(c)...

(d)...

(e)...

(2) In a suit for recovery of immovable property from a tenant including a tenant holding over after the termination of a tenancy, fee shall be computed on the premium, if any, and on the rent payable for the year next before the date of presenting the plaint.

Explanation-Rent includes also damages for use and occupation payable by a tenant holding over.

4. The learned Counsel for the defendant-appellant has urged that there is a distinction between a tenant at sufferance and a tenant holding over. According to him a tenant at sufferance is one who continues in possession of the premises after the termination of the tenancy against the wishes of the landlord, while a tenant holding over is one who continues in possession of the premises after the determination of the tenancy with the consent of the landlord. According to him Section 41(2) would be applicable to a tenant holding over but not to a tenant at sufferance. In support of his contention he has placed reliance on Gobinda Ram Agarwala v. Dulu Pada Dutta and Ors. : AIR1928Cal753 and Champat v. Balakdas AIR 1925 Nag 131.

5. It is common ground between the parties that since the defendant was the tenant of the mortgagee, his tenancy was determined as soon as the mortgage was redeemed The defendant however, continued in possession of the suit premises even after the redemption of the mortgage. The question arises whether after the determination of the tenancy the possession of the defendant was that of a tenant holding over within the meaning of sub Section (2) of Section 41 of the Act. It appears that the distinction between the tenant at sufferance and a tenant holding over is based on the English Law. The question however is whether we must import this distinction for the purpose of construing sub-Section (2) of Section 41 of the Act. The expression a tenant holding over used in Sub-section(2) of Section 41 of the Act has not been defined in the Act. Looking to the entire scheme of Section 41 of the Act it would appear that the expression has been used in a, wider sense so as to include as tenant at sufferance also 'In other words, it means a tenant who holds over the possession' and continues to be in Possession after, the termination of the tenancy. If had the tenant continued in possession of the premises after the termination of the tenancy with the consent of the, landlord no question of filing the suit for eviction would have arisen. In my opinion the expression tenant holding over in sub-Section (2) of Section 41 of the Act is not used in a restricted sense in Which it is used in the English, law, I, therefore hold that sub-Section (2) of Section 41 is applicable to the present suit. The two courts below have rightly held' that the suit was properly valued and proper court fee was paid. With great respect to the learned judges the law laid down in Govind Ram's case by the Calcutta. High Court in Champat's case by the Nagpur High Court is not correct. It appears that the view taken in Champat' s case was, over ruled in Vithaldas v. Gulam Ahmad and Anr. (3) In that case it Was held by the Division Bench that even though a notice ejectment is served on, a tenant, he, does not seize to be a tenant holding over for the purpose of Section 7(XI)(cc) of the Court Fees Act as the cause of action accrues on the date on which, the tenant refuse to quit in compliance with the notice.

6. No other point has been pressed before me 7. There is no force in this appeal and it is dismissed with costs. It is however ordered that the respondent shall not evict the defendant appellant upto 31st of January, 1978.


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