JUDGMENT Kharche S.T., J.
1. Invoking the jurisdiction of this Court under Section 100 of the Code of Civil Procedure, the original defendant has filed this second appeal taking an exception to the judgment dated 20-5-1989 and decree passed by the learned Additional District Judge in Regular Civil Appeal No. 17 of 1986 whereby the appeal has been dismissed and the judgment dated 13-1-1986 and decree passed by the learned Civil Judge, Jr. Dn., in Regular Civil Suit No. 130 of 1982 was confirmed by which the defendant was directed to hand over the possession of the suit premises to the plaintiff with direction to pay arrears of rent of Rs. 234.50 and Rs. 25/- as damages with further enquiry under Order 20, Rule 12 of the Code of Civil Procedure.
2. The respondent/original plaintiff purchased the house bearing Nos. 352 and 353 along with plot having area 20 x 18 feet at Patanbori from one Laxinanrao Narlawar for a consideration of Rs. 23,000/- by registered sale-deed dated 13-4-1982 and the defendant has been in possession of one tin shed of area of 10 x 10 feet situated on the North East corner of the said plot. The case of the defendant is that he was occupying the suit premises as the monthly tenant of the original owner Laxmanrao and the agreed rent was Rs. 33.50 per month. The defendant was running his tailoring shop in the suit premises. The tenancy was monthly and the month of tenancy used to commence on the first day, i.e. on Pratipada and used to end on Amavashya of each month as per Hindu calendar. There was an agreement to pay one month's rent in advance in each month. After the purchase of the house, the defendant was informed regarding the purchase of the house and the defendant also attorned the tenancy with a contention that the tenancy was yearly tenancy. The tenancy was determined by the notice dated 26-10-1982 which was served on the defendant on 29-10-1982 by giving clear 15 days' notice. The defendant was called upon to vacate the suit premises as he did not pay the rent though demanded. He did not vacate the suit premises and therefore the plaintiff filed suit for possession.
3. The defendant contended that he had taken the premises on lease and it was yearly lease. He was carrying on the business of tailoring in that premises and, thereof, his tenancy has not been legally terminated by the notice.
4. The learned Counsel for the defendant contended that the tenancy was yearly tenancy and the premises was let out for manufacturing purposes and therefore six months' notice was necessary as is required under Section 106 of the Transfer of Property Act, 1882 (for short the Act). He contended that the defendant was engaged in manufacturing process as he used to stitch clothes and supply the finished products to the owners of the cloth. He contended that the process of tailoring is not a manufacturing process and, therefore, the notice dated 26-10-1982 served on the defendant is not a legal and valid notice. He contended that the substantial question of law involved in this appeal is whether the process of tailoring is a manufacturing process? And if so, whether notice of six months under Section 106 of the Transfer of Property Act is necessary? In support of these submissions, he relied on the decision of the Apex Court in the case of Ujagar Prints and Ors. v. Union of India and Ors., .
5. The learned Counsel for the plaintiff contended that both the courts below have recorded concurrent findings of facts that the tenancy of the defendant was a monthly tenancy and not a yearly tenancy. He contended that in 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 purposes shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice. The learned Counsel contended that the lease of the defendant is not yearly because as per the provision of Section 107 of the Act a lease of immovable property from year to year or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument. He contended that the contention of the defendant that he is lessee and lease is from year to year has been rightly negatived by the courts below and no substantial question of law is involved in this appeal which is liable to be dismissed.
6. This Court has given thoughtful consideration to the contentions canvassed by the learned Counsel for the appellant. Sub-section (1) of Section 106 of the Act contemplates as under :
"106(1) in 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 month's 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."
Section 107 of the Act contemplates as under :
"107. Lease how made.: A lease of immovable property from year to year or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument.
(All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.
(Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee;) Provided that the State Government may from time to time, by notification in the Official Gazette, direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such lease, may be made by unregistered instrument or by oral agreement without delivery of possession.)
7. In the present case, it is not disputed that the plaintiff is the owner of the houses having a plot admeasuring 20 x 18 feet and the defendant is in possession of the tin shed of the area of 10 feet x 10 feet situated on the North-East corner of the plaintiff's plot. It is also not disputed that defendant is occupying a portion of the plot as a lessee and his original landlord was Laxman. The plaintiff had inducted the defendant as his tenant and he was running his tailoring shop in the premises. The defendant was served with a notice to which he had given reply wherein he raised contention that the tenancy was yearly tenancy. But in the sale-deed it is clearly mentioned that the tenancy is monthly and the rent per month was Rs. 33.50 and the sale-deed was executed by the previous landlord of the defendant. The defendant has not examined his previous landlord, namely Laxman who had inducted him as a tenant. The defendant cannot be allowed to lead oral evidence contrary to the recitals mentioned in the sale-deed wherein it has been clearly stated that the defendant was a monthly tenant. Though the rent of Rs. 400/- was to be paid for the year, it cannot be said that the tenancy was a yearly tenancy. The parties can very well agree even in the case of monthly tenancy to pay yearly rent but that does not mean that it was a yearly tenancy.
8. One more glaring circumstance is that the contention of the defendant's Counsel that there was a yearly tenancy cannot be accepted for the simple reason that a lease of immovable property from year to year is required to be registered in view of Section 107 of the Act and, therefore, it follows that the tenancy of the defendant was a monthly tenancy.
9. The bone of contention of the learned Counsel for the defendant is that the defendant was carrying on the business of tailoring in the suit premises and as such in view of Section 106 of the Act since the lease was for manufacturing purpose, it shall be deemed to be a lease from year to year, terminable either on the part of the lessor or lessee by six months' notice and, therefore, 15 days' notice served on the defendant is neither legal nor valid. In support of these submissions, he relied on the decision of the Apex Court in the case of Ujagar Prints and Ors. v. Union of India and Ors., wherein the Apex Court was considering the scope of Section 2(f) of Central Excises and Salt Act, 1954 and the appeals were concerning the validity of the levy of duties of excise under Tariff Items 19 and 22 of the Schedule to the Central Excises and Salt Act, 1944 ("Central Excise Act") as amended by the Central Excises and Salt Additional Duties Excise (Amendment) Act, 1980 ("Amending Act") treating as "Manufacture" the process of bleaching, dying, printing, sizing mercerising, water-proofing, rubberising, shrink-proofing, organdie, process etc. done by the processors who carry out these operations in their factories on job work basis in respect of 'cotton fabric' and 'manmade fabric' belonging to their customers.
10. Such is not the present case. There was no occasion for the Apex Court to consider the scope of Sections 106 and 107 of the Act and, therefore, the decision in the aforesaid case has no bearing on the facts and circumstances of the present case.
11. What is significant to note is that the defendant has filed written statement and clearly admitted that the rent was to be paid in advance regularly in the beginning of the month as per the agreement and in such a situation, the courts below have held that the tenancy of the defendant was monthly tenancy. There is no reason for this Court to disturb this finding of fact recorded by the 1st Appellate Court which is a final Court for the facts finding.
12. The learned Counsel for the plaintiff rightly relied on the decision of this Court in Ruprao Nagorao Mahulkar v. Murlidhar Dagdueseth Dabhade, 1982 Mh.L.J. 104, wherein this Court has considered the scope of Section 106 of the Act and held as under :
"The word "manufacture" in its ordinary acceptation or popular meaning means the change or transformation so that a new and different article emerges acquiring a distinct and different character or complexion. In view of the word "manufacturing purpose" the applicable definition would be to make by means of a machinery and also may be by hand but now as is common by machinery and on a large scale, the activity of producing repetitively a number of articles of the same type in quantities. If that is the normal and dictionary meaning of the word "manufacture" and therefore of manufacturing purpose it would mean being engaged in the process of turning out or producing similar articles in a repetitive process. The activity in which the lessee was engaged was not a manufacturing purpose and the lease cannot be said to have been acquired for manufacturing purpose when it was first obtained. Merely because on occasions and as a consequence of orders placed, the defendant was also sometimes required to manufacture and produce parts for the purpose of that order, applying the popular meaning and connotation to the expression 'manufacture', he could not be said to be engaged in the process of producing any article in quantity by a repetitive process for his own purpose. The lessee was not producing any articles, and not engaged in producing a number of them which could be said to be his 'manufacturing' that article. Even where the defendant used his machines like the lathe, the drill and other machines, it was not in every case that the original character or form, and even shape of the article after it underwent the process at the lessee's workshop, changed its original character. Merely because the surface of an article is ground to a fine polish, merely because the article is turned and polished, because holes are drilled into it, it does not change its original shape or form. It does not become a different article. Only certain operations with regard to that article and upon that article are carried out by the lease. If the lessee's main activity was to engage in carrying out the orders and functions prescribed by is customers, making changes in the article or bringing them to a certain required standard of specifications or form by doing some act thereto, it does not mean thereby that he was engaged in the "manufacture" so as to transform that article from one into another. It would continue to be the same where for instance casting after it is formed, is polished, cleaned and ground as well as holes drilled into it as specified. It still remains a casting like in the case of an axle or the body of an engine. These activities may be carried out in a workshop, but they can hardly be described as a manufacturing process or a manufacturing activity. The circumstance that the lessee was engaged at a given time in fabricating or producing an article had no significance, because he was not engaged in doing so for himself, but for somebody else. The purpose, thereof, cannot be described to be a manufacturing purpose. It can only be to carry out with the help of the machines and his expertise the jobs of others. The lease, therefore, was not entitled to the advantage of six months' notice under Section 106 of the Transfer of Property Act on the ground that the lease was for a manufacturing purpose."
13. I am in respectful agreement with the view taken by this Court in the above cited case and what this Court finds is that the defendant was working as tailor but not on a large scale and he was not manufacturing hosiery. He was supposed to stitch the clothes on receiving them from various customers and after stitching them would return to the customers. He was not purchasing the clothes for preparing the garments on a large scale and selling them in the open market. He was not engaged in any manufacturing activities but was stitching the clothes of the customers in the premises which was taken on lease by him. He carried on the business of tailoring which was essentially used for doing the job work of stitching of clothes in accordance with the orders of the customers and, as such, it is not possible to accept that the defendant was engaged in any manufacturing activity and the premises was being used by him for any manufacturing purpose. Consequently, this Court is of the considered opinion that no substantial question of law is involved in this appeal and the same is dismissed. The defendant shall vacate the premises within three months from today and deliver the possession to the plaintiff.