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High Court of Judicature at Madras
THE HONOURABLE MRS. JUSTICE ARUNA JAGADEESAN
Arulmighu Agastheeswarasamy Koil Velipalayam by its Executive Officer
Versus
A.S.M. Jainnulabudeen
SA.No.194 of 2001
Decided On :Decided on : 01-11-2010
Lease Termination - Transfer of Property Act - Section 106, Section 111(a) - The court held that the notice to quit under Section 106 of the Transfer of Property Act was not necessary as the lease expired by efflux of time. The court also emphasized that the notice should be construed broadly and not defeated by inaccuracies. The appellant's suit was decreed in its entirety.
Fact of the Case:
The plaintiff filed a suit to obtain possession of a property leased to the defendant, claiming that the lease had expired and the defendant had made unauthorized constructions.
Finding of the Court:
The court found that the notice to quit under Section 106 of the Transfer of Property Act was not necessary as the lease had expired by efflux of time. The court also held that the notice should be construed broadly and not defeated by inaccuracies. As a result, the appellant's suit was decreed in its entirety.
Issues: The issues revolved around the validity of the notice to quit, the expiration of the lease, and the unauthorized constructions made by the defendant.
Ratio Decidendi: The court's decision was based on the interpretation of Section 106 and Section 111(a) of the Transfer of Property Act, emphasizing that the notice to quit was not necessary as the lease had expired by efflux of time. The court also highlighted the broad construction of the notice and the principle of ut res magis valeat quam pereat.
Final Decision: The Second Appeal was allowed, the judgment and decree of the lower courts were set aside, and the suit was decreed in its entirety.
The appellant herein/plaintiff has filed the suit in OS.No.209/95 to pass a judgement and decree, directing the respondent herein/defendant to put the appellant in possession of the suit property, after removing the superstructures constructed by the defendant and directing the respondent to pay Rs.2310/-towards the arrears of paguthi and directing him to pay the future profits from the date of the plaint till the delivery of possession and for costs.
2. The case of the Plaintiff as set out in the plaint is as follows:-a. The suit property absolutely belonged to the plaintiff Temple. Originally 600 sq.ft. and 1800 sq.ft. from the entire extent of the suit property were respectively leased out in favour of one Sundaramohan and N.V.Durairaj for enjoying the same by constructing only temporary thatched huts and they transferred the same in favour of the defendant. On the request of the defendant, the Commissioner of HR&CE passed an order on 6.9.1991 in his favour granting lease for the said total extent of 2400 sq.ft. for the period from 1.7.1991 to 30.6.1994 on a monthly rent of Rs.110/-. In the said order, a condition was also imposed that the defendant should not make any permanent construction in the demised premises. The defendant, who was put in possession of the said 2400 sq.ft. of land as a lessee, subsequently annexed 4000 sq.ft. of land in the same survey number and thus, he is in possession and enjoyment of 6400 sq.ft. of land. When he was questioned, he agreed to pay rent for the same and applied for the grant of lease for 4000 sq.ft. annexed by him, but the same was under the consideration of the Commissioner of HR&CE, Madras. In view of Section 106(d) of the Transfer of Property Act, the defendant should surrender possession of the said annexed 4000 sq.ft. along with the demised land. b. The tenancy for the property is only monthly tenancy and the rent is Rs.100/-p.m. the defendant has not paid the rent from 1.11.1993 and the defendant acted against the terms of the lease and against the interest of the Temple. Hence, a notice to quit dated 2.7.1995 terminating his tenancy was issued to the defendant, for which there was no reply from him and even after the said notice, the defendant has not paid the arrears of rent and hence, he should deliver possession of the suit property by removing the superstructure put up therein by him and pay the arrears of rent of Rs.2310/-together with damages for the use and occupation from the date of the plaint. Hence, the the suit has been filed.
3. In the Written Statement filed by the Defendant, it is averred as follows:-a. The defendant is entitled to the benefit under the City Tenants Protection Act, for which he preferred an application. The suit filed by the Executive Officer without the trustees is not maintainable. Since, the trustees of the Temple gave consent to the defendant for raising permanent construction, he is entitled to construct buildings in the suit property. Further, the property was leased out for raising permanent construction. b. The allegation that the building was constructed against the terms of the lease is not correct. The leasehold right cannot be cancelled and possession could not be sought for on the ground of raising such a construction. The allegation that the tenancy is a monthly tenancy is not correct. The suit property has not been properly and correctly described and the arrears of paguthi has been wrongly mentioned. The plaintiff was aware of the pucca construction put up by the defendant by spending many more lakhs. Hence, on the principle of estoppel, the defendants is not entitled to seek removal of the said construction and to seek possession of the suit property. The defendants is ready to purchase the suit property on the market value. In such circumstances, the suit is not maintainable either in law and on facts and liable to be dismissed.
4. Before the Trial Court, on the side of the Plaintiff, Ex.A1 to A9 were marked and the
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