Validity of sale deed and termination notice under Section 106 of the Transfer of Property Act

R. Hemalatha, J.

No representation for the respondent.

2. The appellant is the defendant in O.S.No.252 of 1999 on the file of the District Munsif, Nagapattinam. The respondent/Plaintiff filed the above said suit for recovery of possession of the suit property which is a shop bearing door No.23, Thittachery from the appellant/defendant.

3. The case of the respondent/plaintiff is that the appellant/defendant took the suit property on rent from one Mr. Rajesh, previous owner of the suit property for a period of 11 months from 01.03.1995 and that the monthly rent was fixed at Rs. 100/-.

4. According to the respondent/plaintiff, he purchased the suit property from the said Rajesh, through a sale deed dated 04.01.1996 (Ex.A.1) and that the appellant/defendant failed to pay monthly rents to him. He therefore, issued a notice (Ex.A.2) dated 21.05.1999, calling upon the appellant/defendant to vacate the suit premises. The appellant/defendant after receiving the said notice, sent a reply (Ex.A3), which according to the respondent/plaintiff, contained false allegations. He therefore, filed a suit for recovery of possession from the appellant/defendant.

5. The appellant/defendant filed a written statement contending that though the previous owner of the suit property had given an oral undertaking to him, to sell the suit property in his favour, he did not honour his commitment and on the contrary had sold the suit property in favour of the plaintiff. According to him, the sale deed (Ex.A.2) executed in favour of the respondent/plaintiff is not valid. He therefore, prayed for dismissal of the suit.

6. In the trial Court the following issues were framed:

1. Whether the plaintiff is entitled to recovery of possession as prayed by him?

2. Whether the plaintiff is entitled for future mense profits as prayed by him?

3. What relief the plaintiff is entitled to?

7. In the trial Court, the respondent/plaintiff examined himself and two other witnesses and marked Exs.A1 to Ex.A4. The appellant/defendant examined himself and marked Ex.B.1 and Ex.B.2. After full contest, the learned District Munsif, Nagpattinam decreed the suit and directed the appellant/defendant to vacate the suit premises, within a period of three months from the date of the decree.

8. Aggrieved over the same, the appellant/defendant filed an appeal in A.S.No.44 of 2001 before the Principal District Judge, Nagapattinam The learned Principal District Judge, after analysing the evidence on record upheld the findings of the learned District Munsif, Nagapattinam.

9. Now, the defendant has filed the present second appeal. The following substantial questions of law arise for consideration:-

(i) Whether the judgment of the Courts below are valid in the absence of any valid attornment of tenancy in favour of the respondent?

(ii) Whether the undated termination notice terminating the tenancy is valid under Section 106 of the Transfer of Property Act?

(iii) In the absence of any valid notice, when there is dispute over the nature of tenancy as to whether it is monthly or annual, whether the plaintiff is entitled to recover the possession without seeking ejectment or eviction from the premises?

10. At the outset, it may be observed that the appellant admitted that he is a tenant in the suit premises. He in fact entered into a tenancy agreement with one Rajesh, the previous owner of the suit premises on a monthly rent of Rs. 100/-. The appellant was running a tea stall in the suit property. The specific contention of the appellant/defendant is that though Mr. Rajesh promised to sell the suit property in his favour, he did not keep up the promise and sold the suit property in favour of the respondent/plaintiff. He had therefore, contended that the sale deed executed by Mr. Rajesh in favour of the plaintiff is not valid.

11. Mr. C. Selvaraju, the learned counsel appearing for the appellant would contend that the undertaking given by the previous owner Mr. Rajesh was not in writing and it was an oral