IMPORTANT POINT
A lease of immovable property from year to year or for term exceeding a year to year or for term exceeding a year can be made only by registered instrument, otherwise said lease deemed to be a monthly lease terminable by 15 days clear notice.

S.V. Gangapurwala, J. — The original plaintiff is the present appellant. The plaintiff

instituted a suit bearing R.C.S. No.10/1976 before the Civil Judge Junior Division, Latur for possession of 1/4th vacant plot bearing No.27/42 at Latur and for recovery of arrears of rent.

The plaintiff contended that the defendant had taken a vacant plot on rent at the time of Diwali 1968, on monthly rent of Rs.17 for a period of one year i.e. up to Diwali 1969. The said agreement was oral. The defendant even after lapse of one year continued in possession of the said vacant site but was irregular in payment of rent. The plaintiff as such issued notice demanding arrears of rent of Rs.350 and terminating his tenancy vide notice dated 10.12.1973. In spite of service of said notice the defendant did not pay the amount of rent. The plaintiff thereafter again issued notice calling upon the defendant to pay the arrears of rent of Rs.368/and again terminated the tenancy. It was further contended that at the time of Diwali 1975 the defendant approached the plaintiff and promised to vacate the suit plot. Relying on his promise the plaintiff has rented the suit plot at Rs. 40 per month. Thereafter, the plaintiff again issued a demand notice dated 20th November, 1975 calling upon the defendant to pay arrears of rent of Rs.568 and to vacate the premises terminating his tenancy.

2. The defendant vide his written statement admitted the ownership of plaintiff over the suit site. The defendant contended that it was a yearly tenancy. The rent was Rs. 120 per year. False notices were issued by the plaintiff. The defendant denied that he was in arrears. The defendant also contended that the notice terminating the tenancy is improper and not inconsonance with law and as such, the tenancy is not properly determined. The defendant further contended that the suit plot is not a vacant plot, but godown building is situated on said plot and is a house within the definition of Hyderabad Houses (Rent, Eviction and Lease) Control Act 1954 (hereinafter referred to as the “said Act of 1954” for the sake of brevity).

The Trial Court dismissed the suit holding that the defendant is not a defaulter. The lease is a yearly lease and the notice terminating the tenancy is not proper as it does not terminate the tenancy with the end of tenancy month. The Trial Court further observed that none of the parties requested the Court to frame issue regarding jurisdiction of the Court in respect of relief of possession of the suit premises, vis-a-vis applicability of the provisions of the Said Act of 1954.

3. The plaintiff being aggrieved by the dismissal of his suit preferred regular civil appeal bearing No.174/1984 to the District Court, Latur. The learned District Judge, Latur dismissed the appeal on the ground that the tenancy in question is yearly tenancy and the defendant is yearly tenant. The notice sent by the plaintiff terminating the tenancy is not legal and proper and that the defendant is not in arrears of rent. The lower Appellate Court, however, held that, “open plot” was leased and not a house.

4. The plaintiff being aggrieved by the dismissal of appeal has filed the present second appeal. The second appeal is admitted by this Court on 3.4.1992 on following substantial questions of law.

(i) The finding on Issue No.2 is contrary to the provisions of Section 106 of the Transfer of Property Act. The lower Court committed error in law in holding that the tenancy of the defendant is a yearly tenancy in as much as the lease is not for agriculture or manufacturing purposes?

(ii) The Court below ignored the presumption under Section 106 of the Transfer of Property Act that every tenancy other than the one for agriculture or manufacturing purposes, shall be deemed to be monthly tenancy, terminable on 15 days notice expiring with the end of a month of the tenancy?

(iii) The lower Court also committed an error of law in interpreting notice of termination dated 20.1