Sunday, 14 December 2014

Whether lease can be treated as monthly tenancy even though it is for bakery?



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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