1968 Supreme(Pat) 148

PATNA HIGH COURT
S.C.Misra and B.D.Singh JJ.
Bhagwati Devi
Versus
Surendrajit Singh
Appeal From Appellate Decree No. 989 of 1965 ;
Decided On : AUGUST 19, 1968

A tenant who denies the relationship of landlord and tenant cannot take a plea of non-service of a valid notice under Sec.106 of the Transfer of Property Act.

Headnote:

TRANSFER OF PROPERTY ACT - Section 106 - Notice to quit - Denial of relationship of landlord and tenant - Estoppel - Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Act 3 of 1947) - Section 11.

Fact of the Case:

The plaintiff, Smt. Sushila Devi, filed a suit for eviction of the defendants from the premises bearing holding No. 229 old plots Nos. 668 and 669, ward No. 3, situated at Chaibasa Road, Ranchi. The plaintiff's case was that on 20-12-58 the said premises were transferred to her by her father Suraj Prasad by way of gift. On 12-3-64 Smt. Sushila Devi sold the said premises to Smt. Bhagwati Devi. Therefore, during the pendency of the appeal before the lower appellate court the appellant filed a petition on 25-5-1964 in the said court for being added as a respondent, stating that she had purchased the said premises. Her petition was also supported by Smt. Sushila Devi and she also prayed that she should be added as a co-respondent. In the said premises one Shri Bir Singh was inducted as a tenant by the original owner Shri Suraj Prasad Singh. Sardar Beyanat Singh, who was defendant No. 1, is the grandson of Shri Bir Singh and the other four defendants who were impleaded in the suit are the sub-lessees inducted by the aforesaid Shri Bir Singh without the consent of the landlord in breach of tenancy. There was default in payment of rent. Therefore, a notice (Ext. 9) dated 9-2-59 was sent to defendant No. 1 to quit the premises. On 20-2-59 a reply (Ext. 10) to the said notice was sent by the defendant. The default of payment of rent continued throughout, but the suit was instituted, as stated above, on 5-10-61. The defence, in short, is the denial of the title of the landlord, repudiation of any relationship of landlord and tenant, denial of subletting by defendant No. 1 and assertions by defendants 2, 4 and 6 that they are in possession in their own rights and have right in the said premises by prescription, whereas defendant No. 3 did not appear at all in the suit.

Finding of the Court:

The trial court decreed the suit on a finding in favour of the plaintiff in respect of her title as well as default in payment of rent by the defendant No. 1, and on a finding of subletting by defendant No. 1 in breach of condition of the tenancy. And an ex parte decree was passed against defendant No. 3. On appeal filed by all the defendants except defendant No. 3, against the aforesaid judgment and decree of the trial court, the lower appellate court after considering the evidence on the record held that (1) the plaintiff has title, (2) the contesting defendants 2, 4 and 5 have been inducted as sub-lessees by defendant No. 1 and (3) there has been default in payment of rent to the landlord; but it dismissed the suit on a finding that a notice as required under Sec.106 of the Transfer of Property Act, 1882 (hereinafter referred to as the Act) to quit the premises had not been properly served. Therefore, it held that the plaintiff ought to be non-suited.

Issues: 1. Whether the defendants can take a plea of non-service of a valid notice under Sec.106 of the Act in view of their denial of the relationship of landlord and tenant? 2. Whether the plaintiff has served notice on the defendant as required under Sec.106 of the Transfer of Property Act?

Ratio Decidendi: 1. The court held that the defendants cannot take a plea of non-service of a valid notice under Sec.106 of the Act in view of their denial of the relationship of landlord and tenant. The court relied on Sec.111 (g) of the T. P. Act which provides that a lease of immoveable property determines by forfeiture in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself. The court also relied on a bench decision of the Patna High Court in Abdul Rahim V/s. Md. Azimuddin, AIR 1965 Pat 156 wherein it was held that a plea about the absence of notice under Sec.106 of the Transfer of Property Act terminating a month to month lease can be raised in appeal. The court further relied on a decision of the Privy Council in Maharaja of Jeypore V/s. Rukmini Pattamahdevi. 46 Ind App 109 : (AIR 1919 PC 1), wherein it was held that no forfeiture was incurred since there was no denial of title by matter of record before the suit, and the service refused was a subsidiary consideration and, on the evidence, of a merely ceremonial character. 2. The court held that the plaintiff has served notice on the defendant as required under Sec.106 of the Transfer of Property Act. The court relied on the notice (Ext. 9) dated 9-2-59 sent by the plaintiff to the defendant and the reply thereto (Ext. 10) sent by the defendant. The court held that the notice (Ext. 9) was properly served on the defendant on 10-2-59 or on 12-2-59 at the latest as evidenced by the postal seal. The court also held that the contents of Ext. 9 are according to the provisions contained under Sec.106 of the Transfer of Property Act.

Final Decision: The appeal was allowed with costs. The judgment and decree of the lower appellate court were set aside and those of the trial court were restored.