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2001 Supreme(AP) 805
Andhra Pradesh High Court
Judges : C.Y.SOMAYAJULU, MOTILAL B.NAIK
R.V.Bhupal Prasad - Appellant
Versus
Saleha Begum alias Shehensha begum - Respondent
Decided On : 08-03-01
Headnote:a) Transfer of Property Act, 1882 - Section 116 - Tenant by Holding over - Mere use of word rent in lease deed, not makes a person tenant or tenant by holding over .
Held : In para 14 of the plaint 1st respondent limited her claim to Rs. 100. 00 per day or Rs. 3,000. 00 per month from 1-1-1984 to 30-11-1985, as per clause 22 of ex. A-1 and claimed higher amount as damages from the date of suit. Therefore, the mere use of the word rent in para 21 of the plaint, by itself does not establish that 1st respondent treated the appellant as her tenant after expiry of the stipulated period in Ex. A-1.
The fact that 1st respondent who was pursuing her remedy under the Rent Control Act, and filed petitions seeking a direction to deposit arrears of rent under Section 11 of the Rent Control Act, does not amount to acceptance or demanding rent as contemplated in Section 116 of the T. P. Act, to create right in favour of the appellant to claim fresh tenancy. In fact in this case appellant, before filing his additional written statement, did not make any assertion that he became a tenant holding over because of the 1st respondent filing a petition seeking a direction to the appellant to deposit rent.
The said section applies to cases of termination of tenancy covered by 111 (h) of the Transfer of Property Act i. e. , by issuing a notice to quit. It does not deal with cases covered by clause (a) of Section 111 of transfer of Property Act which deals with cases of termination of tenancy by efflux of time. For that reason alone the defence of waiver set up by the appellant is liable to be rejected. Even otherwise there seems to be no merit in the said contention for the reasons to be mentioned below. Illustration (a) to Section 113 of Transfer of property Act does not apply to this case. Appellant is relying only on illustration (b) of the said Section.
Neither in Ex. B-4 nor in any other proceedings subsequent to the institution of the suit did the 1st respondent treat the lease as subsisting. In fact in ex. B-4,1st respondent after expressing her anguish and lamenting that inspite of expiry of period of lease, and her initiating several proceedings they did not vacate the suit property demanded the appellant and his co-tenants to vacate the suit property after paying damages at the rate of rs. 100/- per day as stipulated in Ex. A-1.
Therefore, for the reason that the appellant denied the title of the 1st respondent to the suit property the appellant is liable to be evicted from the suit property.
The above evidence of appellant as D.W. 1 is contrary to clause 22 of Ex. A-1 which was extracted above. Under the said clause the lessees undertook to deliver possession of the premises to the lessor including the furniture installed by the lessees and other "improvements, alterations, constructions, reconstructions and additions effected by the lessees, if any, in good condition" (Emphasis supplied).
Accession made to the demised premises as per the contract as per Section 108 (d) of transfer of Property Act would form part of the demised premises and as per section 110 (q) of the Transfer of Property act on determination of the lease the lessee is bound to put the lessor into possession of the said property.
Therefore additions made to the demised property, which under clause 22 of Ex. A-1 are agreed to be treated as a part and parcel of the demised premises, and also as per Section 108 (d) of the Transfer of Property Act became part of the demised premises.
As stated above in any event since the property which is adjacent to the demised premises said to have been purchased by the appellant or his co-tenants was made a part and parcel of the demised premises for its beneficial enjoyment thereof and became an inseparable part of navarang Theatre formerly known as shehansha Mahal , as per Clause 22 of ex. A-1 1st respondent is entitled to recover the entire Navarang theatre premises with all its annexures from the appellant, and the appellant can not raise any objection therefor.
For the above reasons, it is held that no notice to quit was necessary for the 1st respondent before filing the suit for ejectment of appellant and the contention of the appellant that by virtue of Ex. B-4 there was a waiver of the earlier notice to quit, has no merit and so 1st respondent is entitled to recover possession.
Suit is filed on the ground that period of lease expired by efflux of time, which falls under Section 111 (a) of the transfer of Property Act. Therefore, the fact that 1st respondent filed petitions in the r. C. A. and C. R. P. seeking a direction to the appellant to deposit arrears of rent is not a ground for holding that the 1st respondent recognized the status of the appellant as a tenant in respect of the suit property, more so because in Ganga Datt Murarka v. Karik chandra Das it was held that acceptance of amounts from a tenant in respect of a building covered by the Rent Control Act does not amount to acceptance of rent from a lessee within the meaning of Sec. 116 of the Transfer of Property Act. Therefore, The fact that 1st respondent who was pursuing her remedy under the Rent Control Act, and filed petitions seeking a direction to deposit arrears of rent under Section 11 of the Rent Control Act, does not amount to acceptance or demanding rent as contemplated in Section 116 of the T. P. Act, to create right in favour of the appellant to claim fresh tenancy. In fact in this case appellant, before filing his additional written statement, did not make any assertion that he became a tenant holding over because of the 1st respondent filing a petition seeking a direction to the appellant to deposit rent.
b) Words and phrases - Rent - word rent is payment for use of land or building and in narrower sense it is payment by a tenant to a landlord.
( 1 ) FIRST defendant in O. S. 538 of 1985 on the file of the Court of the III Additional Senior civil Judge, Vijayawada is the appellant in this appeal.
( 2 ) FIRST respondent filed the suit against the appellant and respondents 2 to 18 for recovery of possession of Navarang Theatre at Congress Office Road, Governorpet, vijayawada, hereinafter called the suit property, and for damages and mesne profits, on the ground that the agreed period of lease in respect of suit property between her, the appellant and respondents 2 to 18 under Ex. A-1 lease deed came to an end due to efflux of time. Appellant contested the suit contending that respondents 2 to 18 have no interest in the suit property, and that 1st respondent having initiated proceedings under the Rent control Act cannot invoke the jurisdiction of the Civil Court for eviction. During the fag end of the proceedings before the trial court, he filed two additional written statements on 13-9-1997 and 4-2-1999 contending that first respondent (plaintiff) did not acquire title to the suit property and that he cannot be evicted in view of clause 22 of Ex. A-1 lease deed, and that the suit is not maintainable in view of Ex,b-4 notice dated 20-5-1989 issued by the 1st respondent. Defendants 2 and 4 who filed separate written statements, did not participate in the trial of the suit.
( 3 ) 1st respondent examined one witness on her behalf as P. W. I and marked Exs. A-1 to A-108. Appellant examined himself only as R. W. 1 and marked Exs. B-1 to B-11 on his behalf. The learned Trial Judge, by his judgment dated 30-4-1999 passed a decree of eviction against appellant and respondents 2 to 18 and a decree for recovery of Rs. 40,250. 00 towards arrears of rent from 1-1-1984 to 30-11-1985, and for an amount at the rate of Rs. 100. 00 per day from 1-12-1995 till date of delivery of possession of the suit property to the 1st respondent against the appellant only. Respondents 2 to 18 did not prefer an appeal against the decree of eviction passed against them. So the decree of eviction passed against them by the trial Court became final as against them. Aggrieved by the decree of eviction and recovery of money passed against him appellant filed A. S. No. 1620 of 1999, and aggrieved by the non-awarding of mesne profits subsequent to the filing of the suit at the market rate 1st respondent filed a. S. 1917 of 1999 in this Court, The learned single Judge by a common judgment dated 29-12-2000 disposed of both the appeals, dismissing the appeal filed by the appellant and confirming the order of eviction passed against him by the trial Court and allowed the appeal preferred by the 1st respondent, and granted a decree for mesne profits from m-1984 till date of delivery of possession to be determined on a separate application. Hence this Letter Patent Appeal by the 1st defendant.
( 4 ) THE points for consideration in this appeal are: (1) Whether the 1st respondent is entitled to seek eviction of the appellant and (2) To what amount of rent or damages is the 1st respondent entitled to? point No. l:
( 5 ) THE main contention of Sri Muvva chandra Sekhar Rao, learned Counsel for the appellant is that the trial Court, and the learned Single Judge also, did not properly appreciate the contention of the appellant that after the expiry of the stipulated period of lease of 20 years, by virtue of Clause 22 of ex. A-l the appellant became a permanent lessee at the rate of Rs. 3,000. 00 per month. Relying on the observation of the Supreme court in Taynbali v. Ahsan and Co. he contended that since 1st respondent in para 21 of the plaint claimed "arrears of rent for the period from 1-1-1984 to 30-11-1985 at rs. 3,000/- per month" and "future profits" for the subsequent period, it should be taken that 1st respondent knows the difference between rent and damages and so it is clear that 1st respondent treated the appellant as her tenant and claimed rent from him from 1-1-1984 to 30-11-198
