In view of the above, it is clear that notice under section 106 of
the TP Act was given due to the agreement of the monthly tenancy and
local custom or usage. Section 106 of the TP Act reads thus:
106. Duration of certain leases in absence of written contract
or local usage.—
(1) In the absence of a contract or local law or usage to the
contrary, a lease of immovable property for agricultural or
manufacturing purposes shall be deemed to be a lease from year to
year, terminable, on the part of either lessor or lessee, by six
months' notice; and a lease of immovable property for any other
purpose shall be deemed to be a lease from month to month,
terminable, on the part of either lessor or lessee, by fifteen days'
notice.
(2) Notwithstanding anything contained in any other law for the
time being in force, the period mentioned in subsection (1) shall
commence from the date of receipt of notice.
(3) A notice under subsection (1) shall not be deemed to be invalid
merely because the period mentioned therein falls short of the
period specified under that subsection, where a suit or proceeding
is filed after the expiry of the period mentioned in that subsection.
8.
(4) Every notice under subsection (1) must be in writing, signed by
or on behalf of the person giving it, and either be sent by post to the
party who is intended to be bound by it or be tendered or delivered
personally to such party, or to one of his family or servants at his
residence, or (if such tender or delivery is not practicable) affixed to
a conspicuous part of the property.
Perusal of the said section clearly shows that it opens with the
words “in the absence of a contract or local law or usage to the
contrary......” It is thus clear that in the present case, the contract and
usage was clearly proved and therefore, even if the lease was for
bakery, the same was treated as monthly tenancy. That apart, as
already held, there was neither any pleading nor record to show that
the agreement was for leasing out the suit property for running a
manufacturing unit. Merely because the word bakery is used, it is not
necessary that the lower Appellate Court could have jumped to a
conclusion that the “bakery” necessarily means manufacturing unit in
absence of actual or specific evidence to that effect. On the contrary,
the written statement and the evidence of the Defendant is totally silent
as to the argument of tenancy on that aspect nor the Defendant
deposed that he was manufacturing any products in socalled bakery.
Thus, the finding recorded by the lower Appellate Court is clearly
illegal and based on an imagination.
SECOND APPEAL NO.111 OF 1993
WITH
CIVIL APPLICATION NO.335 OF 2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
Abdul Rehman Adamji Shaikh
V/s.
Bhura Bashir subzi farosh
CORAM:
A. B. CHAUDHARI, J.
Dated;SEPTEMBER 26, 2014
Citation;2014(6) ALLMR 881
Being aggrieved by the judgment and decree dated 24 th June
1992 passed by the 8th Additional District Judge, Thane in Regular Civil
Appeal No.142 of 1991 by which the lower Appellate Court reversed
the judgment and decree dated 11 th April 1991 passed by the Trial
Court in Regular Civil Suit No. 56 of 1989 and dismissed the suit that
was decreed by the Trial Court.
2.
In support of the appeal, the learned counsel for the Appellant
landlord submitted that the provisions of the Bombay Rent Act do not
have any application to the suit premises and therefore the Appellant
landlord had issued a notice to the Respondent Defendant under
section 106 of the Transfer of Property Act, 1882 (TP Act) terminating
the tenancy of the Respondent and then since the premises were not
vacated, the suit was brought by the Appellant Plaintiff. The learned
Trial Judge held that the Appellant Plaintiff was entitled to possession
of the suit property and also that rent was due from 1989 till
possession. He submitted that the Trial Judge decreed the suit and
held that the notice under section 106 of the TP Act that was issued by
the Plaintiff Appellant was legal and valid and accordingly directed the
delivery of vacant and peaceful possession of the suit property to the
Appellant Plaintiff so also the decree for rent was made. The lower
Appellate Court, however, according to the learned counsel for the
Appellant, wrongly held that the notice under section 106 of the TP Act
was not legal and that the Trial Court was wrong in passing the decree
for possession. The lower Appellate Court also wrongly held that the
Defendant was not using the premises for last two years before filing of
the suit. The only reason why the lower Appellate Court held the
notice under section 106 of the TP Act as illegal is that the premises
were given for a bakery and that by mere use of the word “bakery”
means manufacturing unit and therefore there is necessity of six
months notice for termination of tenancy. According to him even if
monthly rent was being paid during the tenancy, the same was subject
to the provisions of law. The learned counsel for the Appellant then
submitted that as per the local usage, the tenancy, even if for bakery,
was a monthly tenancy and that is admitted and proved and there was
no reason for the lower Appellate Court to assume that the lease was
for manufacturing purpose in the absence of any specific details or
evidence. He, therefore submitted that the decree passed by the Trial
Judge is required to be restored by reversing the judgment and decree
passed by the lower Appellate Court.
Per contra, the learned counsel for the Respondent tenant
3.
supported the impugned judgment and decree made by the lower
Appellate Court and submitted that the Appellant Plaintiff himself
pleaded that the premises were given for a bakery and therefore,
“bakery” necessarily means a manufacturing unit and if that is so, the
lower Appellate Court was right in holding that the provisions of
section 106 of the TP Act in relation to the manufacturing purpose
prevail over the agreement or conduct of the parties, if any. He, then,
submitted that therefore, the suit was rightly dismissed by the lower
Appellate Court. In the alternative, he prayed for some period to
4.
vacate the suit premises.
Upon hearing the learned counsel for the rival parties, I frame
the following substantial questions of law:
Question :
a)
Whether it is proved that the agreement of tenancy of the
suit premises was for running a manufacturing unit, namely
bakery ?
b)
Whether the lower Appellate Court committed an error in
not finding that the Appellant Plaintiff had specifically pleaded a
case of usage as contemplated under section 106 of the TP Act
providing for monthly lease duly agreed between the parties as
per usage and consequently the notice of termination of tenancy
was legal and valid ?
c)
What order?
Answer:
b) Yes.
c)
5.
No.
Second Appeal is allowed.
a)
I have perused the plaint averments. Paragraph 1 of the plaint
states that the suit shed was given to the Respondent Defendant by the
Plaintiff as a monthly tenant as per the agreement and local usage and
that the rent fixed was Rs.100/ p.m. at village Kelve, Tq. Palghar, Dist.
Thane. In paragraph 2, it is stated that the Defendant was using the
said premises for a bakery and that for the last two years, he has closed
the premises and was neither paying the rent nor vacating the suit
premises. Hence, the notice under section 106 was served on him on
4th April 1989 terminating his tenancy w.e.f. 30th April 1989 but there
was no compliance. Therefore the suit was filed.
6.
I have perused the written statement filed by the Defendant. In
the written statement, the Respondent Defendant denied that he was
not running bakery for last two years. In reply to paragraph 1, he gave
evasive reply and therefore as per the settled legal position, the
averments made in paragraph 1 are deemed to have been accepted by
him. In the entire written statement, he nowhere stated that the
premises was obtained on tenancy for manufacturing purpose of bakery
but he merely stated that he was running a bakery in the suit premises.
He did not even deny that the tenancy was monthly. In the evidence,
the Appellant entered into witness box and stated that as per the
tradition and custom and usage in the village, the premises was let out
on monthly basis. He then stated about the non payment of rent etc.
and submitted that he had terminated the tenancy of Respondent
Defendant who did not give possession. In the crossexamination, not
even a single suggestion was given that the tenancy was for a
manufacturing purpose and therefore the notice for six months rather
than one month was required. Even the evidence of the tradition and
custom or usage was not challenged in the crossexamination. At this
stage, it would be appropriate to quote the finding from the judgment
of the Trial Court in paragraph 24 in answering to issue Nos.3 and 4
which read thus:
“24. The Defendant admitted that he is monthly tenant in the
premises and Ex.20 to 45 also speaks that Defendant was
monthly tenant and Plaintiff terminated the tenancy of the
Defendant by Notice Exh.18. No Rent Control Act is applicable
to the village Kelve. The Plaintiff stated that he has 6 married
children residing in the another room. His family is growing
family and Plaintiff therefore in need of suit premises. The
Defendant in his crossexamination also admitted that Plaintiff
and his all the sons are residing in the one house and their family
is growing family.”
7.
In view of the above, it is clear that notice under section 106 of
the TP Act was given due to the agreement of the monthly tenancy and
local custom or usage. Section 106 of the TP Act reads thus:
106. Duration of certain leases in absence of written contract
or local usage.—
(1) In the absence of a contract or local law or usage to the
contrary, a lease of immovable property for agricultural or
manufacturing purposes shall be deemed to be a lease from year to
year, terminable, on the part of either lessor or lessee, by six
months' notice; and a lease of immovable property for any other
purpose shall be deemed to be a lease from month to month,
terminable, on the part of either lessor or lessee, by fifteen days'
notice.
(2) Notwithstanding anything contained in any other law for the
time being in force, the period mentioned in subsection (1) shall
commence from the date of receipt of notice.
(3) A notice under subsection (1) shall not be deemed to be invalid
merely because the period mentioned therein falls short of the
period specified under that subsection, where a suit or proceeding
is filed after the expiry of the period mentioned in that subsection.
8.
(4) Every notice under subsection (1) must be in writing, signed by
or on behalf of the person giving it, and either be sent by post to the
party who is intended to be bound by it or be tendered or delivered
personally to such party, or to one of his family or servants at his
residence, or (if such tender or delivery is not practicable) affixed to
a conspicuous part of the property.
Perusal of the said section clearly shows that it opens with the
words “in the absence of a contract or local law or usage to the
contrary......” It is thus clear that in the present case, the contract and
usage was clearly proved and therefore, even if the lease was for
bakery, the same was treated as monthly tenancy. That apart, as
already held, there was neither any pleading nor record to show that
the agreement was for leasing out the suit property for running a
manufacturing unit. Merely because the word bakery is used, it is not
necessary that the lower Appellate Court could have jumped to a
conclusion that the “bakery” necessarily means manufacturing unit in
absence of actual or specific evidence to that effect. On the contrary,
the written statement and the evidence of the Defendant is totally silent
as to the argument of tenancy on that aspect nor the Defendant
deposed that he was manufacturing any products in socalled bakery.
Thus, the finding recorded by the lower Appellate Court is clearly
9.
illegal and based on an imagination.
To sum up, both the questions in the light of the above discussion
will have to be answered accordingly. Hence, question No.1 answered
in the negative and question No.2 in the affirmative. In the result, I
make the following order.
ORDER
a)
Second Appeal No.111 of 1993 is allowed with costs
throughout.
b)
The impugned judgment and decree passed in RCA No.142
of 1991 dated 24th June 1992 by 8th Additional District Judge,
Thane is set aside.
c)
The judgment and decree dated 11 th April 1991 passed in
Regular Civil Suit No.56 of 1989 by the Civil Judge, Junior
division is restored.
e)
In view of disposal of the second, Civil Application
No.335 of 2012 does not survive. Same stands dismissed as
infructuous.
d)
The Respondent shall vacate the suit premises within a
period of three months from today.
(A. B. CHAUDHARI, J.)
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