JUDGMENT V.R. Kingaonkar, J.
1. This appeal arises out of concurrent findings and judgments of 3rd Joint Civil Judge (J.D.) and Additional District Judge, Nanded. By the impugned judgment, rendered in First Appeal (R.C.A. No. 255/1982) the Additional District Judge confirmed judgment of the trial Court, whereby the suit for recovery of possession filed by the present appellant was dismissed.
2. It is common ground that Respondent No. 1/defendant No. 1 is owner of a plot No. 13, admeasuring 150 ft. south-north in length by 70 ft. east-west in breadth. Admittedly, by virtue of a registered sale deed dated 20.12.1952 he leased out the said plot to the deceased Appellant/Plaintiff and Respondent No. 4 -Adinath. It was a joint lease created for benefit of both the lessees. They were inducted in possession of the plot. They had put up a barbed wire fencing around boundaries of the plot. The agreed rent (Nuzul) was Rs. 10/- p.a. It was permanent lease without any particular tenure fixed. The Respondent No. 1 was entitled to recover the rent and on failure to pay the same, to recover the possession in accordance with law.
3. The deceased appellant filed suit (R.C.S. No. 288/1981) for recovery of possession of the plot No. 13. His case was that he and the defendant No. 4 - Adinath were in joint possession of plot No. 13 as lessees. They paid amount of Rs. 1,500/-(Rupees One thousand five hundred) as Nazrana (gift) to the defendant No. 1 at the relevant time. The defendant No. 1, however, leased out eastern half portion of the said plot to the defendant Nos. 2 and 3. That lease agreement is illegal. The defendant Nos. 2 and 3 illegally occupied eastern half portion of the plot No. 13 in or about March 1981. The defendant No. 4 has made collusion with the other defendants.
Consequently, he is entitled to recover possession of the entire plot No. 13 inasmuch as his tenancy rights are subsisting.
4. Assertions of the defendants were that the plaintiff/appellant failed to pay the agreed rent. It was informed to the defendant No. 1/landlord by the defendant No. 4 that the plot No. 13 was equally divided between the lessees and the plaintiff was allotted eastern portion, whereas western portion was retained by him. The defendant No. 4 further informed the landlord to collect rental amount from the plaintiff to the extent of the eastern half portion.
The defendant No. 4 had paid the rent of Rs. 50/-for period of 10 years between 1971 to 1980. The landlord i.e. defendant No. 1 demanded the rental arrears from the plaintiff under a demand notice dated 17.12.1974. The plaintiff did not comply with the demand nor gave reply to the notice. The specific case of the defendant No. 1 is that in or about 3rd week of January 1975 he visited village Palsa, where the deceased plaintiff used to reside, and requested him to pay the rental arrears. At that time, the deceased plaintiff told him that the eastern half portion was of no use to him and as such the latter may take possession thereof. Accordingly, he took possession of the eastern half portion of plot No. 13 as the lease was deemed ineffective due to surrender made by the plaintiff. Though the defendant No. 1 demanded written consent of the plaintiff yet, it was not insisted upon when the plaintiff told him that the lease was willingly cancelled. The case of the defendants further was that after such surrender of the lease by the plaintiff, the eastern half portion was let out to the defendant Nos. 2 and 3 by virtue of a registered lease deed on 24th October 1980. They are in actual possession of the same. On these premises, the defendants/respondents sought dismissal of the suit.
5. The trial Court framed following issues for determination:
1. Whether defendant prove that the Plaintiff has surrendered right of lease to the extent of 1/2 eastern plot in the month of January 1975.
2. Whether they prove that the Defendant No. 1 has put in possession of eastern plot by Plaintiff in the month of January 1975.
3. Is he entitled to future mesne profits.?
4. What order ? What decree ?
6. The trial Court held that the deceased plaintiff had surrendered his tenancy rights to the extent of half eastern portion of the plot in the month of January 1975 and delivered possession thereof to the defendant No. 1/landlord. On the basis of such findings, the suit came to be dismissed. The first appellate Court raised a single point as to whether the plaintiff is entilted to the recovery of possession of suit plot. The first appellate Court recorded negative finding on this point and dismissed the appeal. Feeling aggrieved, this Second Appeal is preferred by the unsuccessful plaintiff.
7. During the pendency of the appeal, the appellant died. His legal representatives were brought on record. The original defendant No. 1/respondent No. 1 also died during pendency of the appeal. His legal representatives were taken on record. So also, the original defendant No. 4 died during pendency of the appeal. His legal representatives are also brought on the record.
8. Heard learned Counsel for the contesting parties.
9. Mr. Totala, learned Counsel appearing for the L.Rs. of the deceased appellant, would submit that the alleged surrender of lease is not proved by the defendants. He would submit that permanent lease could not be forfeited in the manner as claimed by the defendants. He contended that when the lease was created under a registered document then so-called oral surrender could not extinguish the rights of the lessee. He further contended that the defendant Nos. 1 to 3 caused illegal dispossession of the plaintiff (tenant) and hence the possession ought to have been restored to him alongwith the mesne profits. He would submit that findings of both the Courts in respect of so-called dispossession of the tenant due to their illegal acts could not have been ratified by the first appellate Court. He submitted that cancellation of the lease could occur only in the manner known to the law. Hence, he urged to allow the appeal and decree the suit. On the other hand, learned Counsel Mr. Deshpande, appearing for Respondent Nos. 2 and 3 supported the findings of both the Courts below. He pointed out that the defendant No. 4, who is a co tenant, did not support case of the plaintiff. He urged, therefore, to dismiss the Second Appeal.
10. The substantial question of law involved in the Second Appeal is:
Whether the permanent lease in question could be terminated or cancelled only by verbal assertion of the landlord that he was asked to recover possession of the eastern half portion by the deceased plaintiff and that such surrender of lease could be validly recognised.?
11. The evidence on record would show that a registered lease deed was executed by the deceased defendant No. 1 on 20.12.1952. The entire plot No. 13 was leased out to the deceased plaintiff and the deceased defendant No. 4. They were inducted in the possession thereof. That was annual lease created for joint benefit of the lessees. Copy of the registered lease deed (Exh.49) alongwith the translation thereof) is placed on record. The terms of the lease deed do not show that the landlord was entitled to recover possession immediately due to the defaults of the payment of rent. The terms of the contract of lease do not show that oral surrender of the tenancy rights was agreed to be the mode of determination of the leasehold rights. The document of lease would show that it was "permanent lease" of the plot in question. A "Kabuliyatnama" was executed by the deceased plaintiff -Dwarkadas and deceased defendant No. 4 Adinath on the same day. The Kabuliyatnama purports to show that the possession of the plot could be recovered as provided under the law, in case of defaults committed by the lessees in making payment of the rent. Needless to say, the terms of the lease deed do not provide for any other mode of surrender or cancellation of the lease deed except as permissible under the law. It is in this background that oral evidence of the defendants will have to be scrutinised.
12. The version of D.W.1 Kazi Mohd. Mubazaruddin Kazi Muniruddin purports to show that after 1970 the defendant No. 4 had refused to give the lease amount of the plaintiffs share on account of internal partition. He deposed that a demand notice dated 17.12.1974 was issued to the plaintiff and it was served on him. The demand notice (Exh.46) reveals that the rent at the rate of Rs. 10/- was demanded for the relevant period from 1970 to 1974. It was informed to the deceased plaintiff that his half share would be leased out to anybody else if the demand was not complied with within one week of the notice. It appears that the demand notice was not replied by the deceased plaintiff. According to D.W. Kazi Mohd. Mubazaruddin, after about one month of giving of such notice, he went to the house of the deceased plaintiff -Dwarkadas at village Palsa and met him personally. Then the deceased plaintiff - Dwarkadas told him that he was not concerned with the half portion of the plot and further asked him to take over possession thereof. So he took possession of that half portion. He deposed that in the year 1980 he leased that eastern half portion of the plot to the defendant Nos. 2 and 3. He denied that any amount of Nazrana was paid to him by the deceased plaintiff - Dwarkadas and deceased defendant No. 4 -Adinath. His cross-examination revealed that deceased defendant No. 4 Adinath used to pay the lease amount for himself and the plaintiff and such payment was made up till 1970. Admittedly, deceased defendant No. 4 was inhabitant of village Barad and the deceased plaintiff -Dwarkadas was inhabitant of village Palsa. It was the version of the landlord - D.W. Kazi Mohd.Mubazaruddin that when he had gone to village Palsa, he sought writing from the plaintiff - Dwarkadas in respect of the surrender but said Dwarkadas refused to give the same for the reason that the original lease deed was not available. In other words, deceased plaintiff Dwarkadas had not given anything in writing although, it was so demanded. It does not stand to reason that deceased Dwarkadas had orally asked the landlord to take over possession of the eastern half portion. Apart from the bald version of D.W.Kazi Mohd.Mubazaruddin, there is nothing else on record to substantiate such story of oral surrender. Moreover, his version, in this context is vague. The pleadings of the deceased defendant No. 1 are at variance with his testimony in respect of demand of surrender in writing. Therefore, so-called story of oral surrender made by the deceased plaintiff - Dwarkadas could not have been believed and relied upon by the trial Court as well as the appellate Court. There is yet another reason to dislodge his version in this context. If he was orally asked to take over possession of the eastern half portion of the plot No. 13, in or about January 1975 then he would have, in the natural course of human conduct, immediately leased out that portion to any third party. He leased out that portion to the defendant Nos. 2 and 3 in 1980 i.e. after about 5 years. He would not have allowed the property to remain idle without earning any income by way of rent.
13. There is evidence of D.W. Munjaji, who deposed on behalf of the defendant Nos. 2 and 3, and evidence of D.W.Adinath (deceased defendant No. 4). Their versions are of no much avail on the question of alleged surrender of the tenancy rights by the deceased plaintiff - Dwarkadas. It was version of D.W. Adinath that in 1971 the plot No. 13 was divided between himself and the deceased plaintiff. He claims to have received the western half portion thereof. There is no written agreement regarding such kind of division interse the lessees. As against this, P.W. 1 Dwarkadas deposed that he and the defendant No. 4 had paid Nuzul to the defendant No. 1. He further deposed that the plot was never partitioned between himself and the defendant No. 4 Adinath. According to P.W. Dwarkadas, in the month of March 1981 he came to know about induction of defendant Nos. 2 and 3 over the suit plot. He admitted recitals of Kabuliyatnama (Exh.44).
He admitted that in the year 1970 the defendant No. 4 Adinath asked him to pay Nuzul to the extent of his portion and hence, their relations were strained. He further admitted that he did not possess any document to show payment of the Nuzul (rent) after 1970. He denied that he had asked the defendant No. 1 to take back possession of his portion.
14. The facts which emerge from the record are that there was default committed by the plaintiff -Dwarkadas and defendant No. 4 -Adinath in the payment of rent. They were tossing liability to each other. The landlord ultimately gave a demand notice in writing and claimed the amount of rent arrears from the plaintiff - Dwarkadas. It appears that on account of his failure to pay rental amount, the landlord took over possession of the half portion of the plot. It appears that there was no oral surrender of the tenancy rights by the deceased plaintiff - Dwarkadas. The first appellate Court did not discuss the relevant aspects regarding validity of the surrender in question. What the first appellate Court has observed, in this context is that since the plaintiff -Dwarkadas was not in possession of plot No. 13, he had lost the tenancy rights. The first appellate Court held:
Thus, the Plaintiff is not in possession of any portion of the suit plot. The right of the plaintiff to claim possession of the suit plot was at the foot of the lease. I for myself believe that once the tenant of an open plot is dispossessed from the open plot, for one reason or the other, by the landlord, the tenancy will be determined, and no right to recover possession of such a plot rests with the tenant. On this line of reasoning, I am of the view that the suit for the recovery of possession is not at all maintainable and is liable to be dismssed.
I find it difficult to appreciate such finding of the first appellate Court. It is difficult to countenance that once the possession is lost, for one reason or the another, the tenant will not be entitled to recover possession and such suit is "not at all maintainable and is liable to be dismissed" as held by the first appellate Court. If such a view is accepted then it will open a flood gate for weeding out the tenants by use of extra judicial methods. They will not be able to protect the tenancy rights even if the dispossession is effected without any recourse to the law. The first appellate Court committed patent error while holding that the tenancy was determined because the plaintiff - Dwarkadas had lost possession.
15. So far as legal position is concerned, it may be gathered from the terms of the lease agreement that the right available to the landlord was only to get the lease determined as per the law. The determination of lease Under Section 111 of the Transfer of Property Act could be effected by giving appropriate quit notice Under Section 106 of the said Act. That was not done. The only plea raised is of oral surrender which may fall within the ambit of Section 111(f) of the T.P.Act. There is no express surrender of the lease. As stated earlier, the evidence of the defendants is too inadequate and unreliable to reach conclusion that deceased Dwarkadas had orally surrendered the leasehold rights.
16. Mr. Totala, learned Counsel for the appellant seeks to rely on Modern Hotel Gudur represented by M.N. Narayanan v. K.Radhakrishnaiah and Ors. .
It is held in the given case that in absence of forfeiture clause the contractual tenancy would be subsisting under the provisions of the Act and eviction during subsistence of the lease was not permissible. He also seeks to rely on State of U.P. and Ors. v. Maharaja Dharmander Prasad Singh etc. .
It is held in the given case that lessor can resume possession only in a manner known or recognised by law. The Apex Court observed:
A lessor, with the best of title, has no right to resume possession extrajudicially by use of force, from a lessee, even after the expiry or earlier termination of the lease by forfeiture or otherwise. The use of the expression "reentry" in the lease deed does not authorise extrajudicial methods to resume possession. Under law, the possession of a lessee, even after the expiry or its earlier termination is juridical possession and forcible dispossession is prohibited; a lessee cannot be dispossessed otherwise than in due course of law.
17. Mr. Totala, learned Counsel further seeks to rely on certain observations in Raptakos Brett & Co. Ltd. v. Ganesh Property . The facts of the given case are on different footing and hence, the observations regarding interpretation of Section 111(d) of the Transfer of Property Act, are of no much help in the present case. In S.A. Wali Quadri v. Sadar Anjuman-e-Islamia A.I.R. 2000 Andhra Pradesh 417.
Somewhat identical question was considered by the learned Single Judge of the Andhra Pradesh High Court. It is held that in the absence of clear evidence to the effect that the possession of the premises was taken by the lessor pursuant to the implied surrender, no valid implied surrender can be inferred. It is observed that mere abandonment of possession by the tenant does not ipso facto amount to surrender unless accompanied by the acceptance on the part of the lessor. The necessary intention of surrender must be present. It is held:
The burden of proof lies on the respondent-landlord to prove the doctrine of surrender. Both the lessor and lessee must be parties to any arrangement from which the implied surrender can be culled out.
18. The theory of implied surrender is being assailed by the learned Counsel Mr. Totala. It is well settled that the tenancy could be determined in accordance with Section 111 of the T.P. Act. The specific plea taken by the landlord, in the context of the oral surrender by the deceased tenant - Dwarkadas is without any substratum. The inescapable conclusion would be that the tenancy rights of the deceased plaintiff remained unabated irrespective of his illegal dispossession at the hands of the deceased Respondent No. 1 and the defendants Nos. 2 and 3. He was entitled to recover possession of plot No. 13 from them. The suit ought to have been, therefore, decreed.
19. In the result, the Second Appeal is allowed. The suit for recovery of possession is decreed. The legal representatives of the deceased appellant are entitled for restoration of possession over the plot No. 13. The Legal representatives of deceased defendant No. 1 and defendant Nos. 2 and 3 shall vacate the plot No. 13 and hand over possession thereof to the legal representatives of the plaintiff within a period of two months. They shall also remove the construction raised on the said plot and deliver vacant possession thereof. An inquiry into the mesne profits shall be held and the legal representatives of the deceased plaintiff would be entitled to recover the mesne profits as will be determined, from the date of the suit, as permissible under the law. The defendants shall bear their own costs and shall pay costs of the suit and of both the appeals to the legal representatives of the deceased plaintiff.