Jeet Lal & Other vs Bank Of Maharashtra & Others
2000 Latest Caselaw 184 Del

ORDER

K.S. Gupta, J.

1. In the amended plaint it is alleged that the plaintiffs were the owners of property No. 29-B, Connaught Place, New Delhi, alongwith defendants 2 to 6. Shops on the ground floor of the property has been in occupation of the plaintiffs as tenants for the last many years. Defendant No.1 approached the plaintiffs and said defendants for purchase of the said property for Rs. 8,25,000/- through Narinder Anand, property broker. Plaintiffs told the defendants that they were ready to sell the property subject to the specific condition that they would remain as tenants in the respective shops in their occupation for ever and after their death their respective heirs would become tenants in their place on the same terms and conditions. Defendant No.1 agreed to purchase the property subject to the said specific condition. It is further alleged that at the time of entering into the agreement of sale dated 26th February, 1973 the agreements of tenancies were also simultaneously executed on 26th February, 1973 by the plaintiffs. Later on sale-deed was executed and registered with the Sub Registrar, New Delhi on 5th June, 1974. The possession of said property excepting the shops on ground floor was delivered to defendant No.1 on 26th February, 1973. Defendant No.1 inspite of having purchased the property subject to the aforesaid specific condition, has initiated proceedings for eviction against the plaintiffs under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. It is stated that initiation of the eviction proceedingsby defendant No.1 is a clear breach of thesaidspecific condition.Sale of the property in favour of defendant No.1 is, therefore, liable to be declared as null and void. Defendants 2 to 6 have been imp leaded as formal parties being the venders of said property alongwith the plaintiffs. It was prayed that decree for declaration may be passed that the sale deed dated 6th February 1974 (registered on 5th June, 1974) is null and void. Possession of said property 29-B excepting the shops on ground floor be delivered to the plaintiffs. In the alternative decree for declaration that the plaintiffs are entitled to remain in occupation of the shops on ground floor forever as tenant and after their deaths their respective legal heirs would become tenants in their places on the same terms and conditions on which they are holding the shops under defendant No.1, may be passed.

2.Defendant No. 6 was proceeded ex parte on 26th September, 1977 while defendant No. 3 on 15th November,1977. Defendants 2 & 5 were proceeded ex parte on 3rd February 1978 while defendant No.4 on 13th September, 1978.

3.Defendant No.1 contested the suit. In the written statement filed to the amended plaint by way of preliminary objections it is alleged that the suit is barred by limitation, suit as framed is not maintainable, plaint does not disclose cause of action, jurisdiction of this court is barred under Section 15 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and the court fee paid is inadequate. On merits, it is pleaded that there were some disputes between the plaintiffs and defendants 2 to 6 and in the suit it was ordered by this Court that as it was not possible to physically partition the property, the same will be sold in auction. Property was put to auction twice but without any results. Answering defendant was approached by the plaintiffs and efendants 2 to 6 through Narinder Anand, property broker, for purchase of property and after negotiations defendant agreed to purchase the property for a sum of Rs. 8,25,000/-. On 26th February, 1973 an agreement of sale was executed between the parties and a sum of Rs. 5,01,000/- paid to the plaintiffs and defendants 2 to 6. Balance amount was agreed to be paid at the time of execution and registration of the sale deed. Answering defendant was put in possession of the property excepting the shops on ground floor which were in occupation of the plaintiffs as tenants. Tenancy agreements were separately executed by the plaintiffs in respect of the shops in their occupation for a period of 11 months which have since expired. Sale deed was thereafter executed on 6th February, 1974. It is denied that the answering defendant approached the plaintiffs and defendants 2 to 6 for purchased of said property as alleged. It is further denied that the plaintiffs told the answering defendant that they would sell the property only subject to the specific condition that they would remain tenants for ever in the tenanted shops and the tenancy would be heritable as alleged. It is stated that after the expiry of period of 11 months for which agreements of tenancy were executed, no notice was given by any of the plaintiffs for exercising the option for renewal of lease. After terminating the tenancies of the plaintiffs validly the eviction proceedings have been initiated against them under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and the proceedings are pending before an Estate Officer. It is emphatically denied that the tenancies of plaintiffs are either permanent or heritable as alleged. Even otherwise, the plaintiffs had committed breach of the covenants of the Head lease and have thus made their tenancies liable to forfeiture. It is denied that the sale of property in favour of defendant No.1 is liable to be declared as null and void as alleged. It is stated that the value of the property is more than Rs. 20 lakhs as admitted by the plaintiffs as is evidence from reply/objection filed by plaintiff No. 2 in the eviction proceedings before the Estate Officer.

4.In the replication the plaintiffs have controverted the averments made in the amended written statement besides reaffirming those made in the plaint.

5.On the pleadings of the parties the following issues were framed:-

1. Whether the suit is barred by time?

2.Whether the suit as laid is maintainable?

3.Whether the plaint does not disclose a cause of action?

4.Whether the sale of the property was subject to the condition that the plaintiffs would remain tenants of the shops on theground floor in perpetuity and the tenancy would be heritable bytheir legal heirs?

5.If the above issue is found in favour of the plaintiff, thenwhat is its effect?

6.Whether the suit is properly valued for purposes of court fees?

7.Relief.

The following additional issue was further framed on 27th January, 1986 :-

"Whether the suit is barred under Section 15 of the Public Premises (Eviction of Unauthorised Occupants) Act,1971"

ISSUES 4 & 5:

6.These being the main issues I propose to decide them together first. It is admitted case of the parties that property No.29-B, Connaught Place was jointly owned by the plaintiffs and defendants 2 to 6 and under an agreement of sale dated 26th February, 1973 (copy Ex. P-5) they agreed to sell it to defendant No.1 for a sum of Rs. 8.25 lakhs and on receipt of Rs. 5,01,000/- out of that amount, the possession of said property excepting the shops on ground floor in occupation of the plaintiffs as tenants, was handed over to defendant No.1 bank on 26th February, 1973. It is also the admitted case of the parties that simultaneously with the execution of said agreement of sale the plaintiffs individually executed agreements of tenancy in respect of respective shops in their occupation on 26th February, 1973 and later on sale deed was also executed by the plaintiffs and defendants 2 to 6 in favour of defendant No.1 on receipt of the balance amount of sale consideration on 6th February, 1974. It is further not in dispute that defendant No.1 bank terminated the tenancies of plaintiff No.1 by the notice dated 28th September 1976(copy Ex. D-14), plaintiff No. 2 by the notice dated 14th October 1976 (copy Ex. D-13), plaintiff No. 3 by the notice dated 25th September, 1976 (copy Ex.D-15) and plaintiff No. 4 by the notice dated 28th September, 1976 (copy Ex.D-12).

7.Submission advanced by Sh. Pramod Seth appearing for the plaintiffs was three fold - (a) that defendant No.1 purchased the said property subject to specific condition that the plaintiffs will remain the tenants in the respective shops in their occupation for ever and even after their deaths, their legal heirs would become the tenants on same terms under defendant No.1 bank; (b) that on defendant No.1 bank having violated that specific condition the sale of property in their favour has become null and void and (c) that the mezzanine floor constructed in the tenanted shops was in existence much before the property was sold to defendant No.1 and, therefore, the tenancies of the plaintiffs in terms of said notices could not have been validly terminated by defendant No.1 on the ground of their having constructed the mezzanine floor. Reliance was placed on the decisions in Bai Sona Vs. Bai Hiragavri ; Srimati Nayan Munjari Dasi Vs. Khagendra Nath Das and Others AIR 1927 116, Mangalam Pillai and Others Vs. C.S. Appavoo Udayar AIR 1976 Mad 360 and A.C. Boyd Vs. A. Kreij, 1890 (XVII) ILR 548.

8.The agreement of sale Ex. P-5 and the sale deed Ex.P-6 are absolutely silent in regard to the nature of tenancies of the plaintiffs either being permanent or otherwise. Para No.5 of the agreement of sale Ex. P-5 says that the possession of the shops on ground floor shall remain with the present tenants and they shall enter into fresh agreements of tenancy with the vendee simultaneously with the execution of sale agreement on the terms and conditions to be mutually agreed upon. Ex. P-7 is the agreement of tenancy jointly executed by plaintiffs No.3 and 4 while Ex. P-8 executed by plaintiff No.1 in favour of defendant No.1 bank. Similar agreement of tenancy is stated to have been executed on 26th February, 1973 by plaintiff No. 2 in favour of defendant No.1. Clauses 1,4,6 and 10 of Ex.P-7 which are relevant read thus:-

"1. This agreement will come into force only on completion ofthe sale.

4.That the said shop has been let out to the tenants for thepurposes of business only. The tenants can do any business in thesaid shop as they like under any name. The tenancy will be heritable i.e. after the death of the tenants their respective legalheirs will become the tenants in place of the tenants on the same rights and conditions but shall not be entitled to claim physicalpartition or sub division of the premises into separate portionsaccording to their respective shares.

6.That this agreement is for a period of 11 months from the date of execution of this agreement but thereafter the tenantscan extend the tenancies for any period at their will on the sameterms and conditions.

10. The bank shall be entitled to close down the doors of the ground floor shop and/or mezzanine floor leading towards thestaircase of first floor and the tenants shall not be entitled touse staircase doors."

9.Similar clauses are contained in Ex. P-8 excepting that in clause 10 the words 'and/or mezanine' in between the words 'on ground floor shop' and 'leading towards the staircase' are missing. It may be noticed that the aforesaid clauses 4 & 6 are inconsistent in as much as according to clause 4 the tenancies of plaintiffs are to be permanent while as per clause 6 the tenancies were to be for a period of 11 months with effect from 26th February 1973 with the option to the plaintiffs to further get it extended for any period on their will on similar terms and conditions. Much stress was laid on behalf of the plaintiffs on aforesaid clause 4 which has the effect of making the tenancies of plaintiffs permanent which could only be made by registered instrument u/s 107 T.P.Act. It is not in dispute that said tenancy agreements Ex.P-7 and P-8 as also executed by plaintiff No.1 on 26th February, 1973 were not got registered. In the absence of registration the leases in favour of plaintiffs created under the said agreements of tenancy shall be deemed to be the leases from month to month. I am fortified in this view of mine by a decision of the Supreme Court in Burmah Shell Oil Distributing now known as Bharat Petroleum Corporation Ltd. Vs. Khaja Midhat Noor and Others, . It will not be out of place to state that the plaintiffs did not exercise option within the meaning of aforesaid clause 6 for extension of their tenancies after the expiry of period of 11 months commencing from 26th February, 1973. Mere payments of rent by the plaintiffs to defendant No.1 bank prior to the date(s) the termination of the tenancies were to be effective, cannot tentamount to exercise of discretion within the meaning of said renewal clause 6. In the decision in Bai Sona (supra) the terms of the lease deed provided that so long as the lessee went on paying rent to the lessor, the lessor would not be entitled to get the leased premises vacated and considering that term of the lease deed it was held that it was a permanent lease and did not determine on the death of the lessee. In Smt. Nayan (supra) while interpreting the terms of compromise arrived at between landlord and tenants it was held that the lease was binding so long as the tenants were contend to pay the prevailing rate of rent. Obviously, in both these decisions the question of registration of the lease deed as required by section 107 T.P. Act was not involved. That being so, said decisions are not of any help in this case. Ratio in the decision in A.C. Boyd's case is that a lease for one year containing the option of renewal for a period of one year, is not a lease for a term exceeding one year within the meaning of clause (d), Section 17 of the Registration Act, so as to render registration thereof compulsory. As no such point is involved in this case, this decision too has no applicability. Mangalam Pillai's case (supra) was rendered on the facts of that case and it too has no applicability to the facts of this case. The holding over tenancies of the plaintiffs being month to month and there being no covenant regarding the plaintiffs' tenancies being permanent in the sale deed Ex. P-6 the aforementioned submission at (a) and (b) deserve to be repelled being without any merit.

10. This brings me to yet another submission at (c) above. Indisputably, the tenanted shops being owned by defendant No.1 bank are the public premises to which the provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 applies. In the decision in Jiwan Das Vs. Life Insurance Corporation of India, RLR (SC) 189 submission advanced on behalf of the petitioner-tenant was that the notice under Section 106 T.P.Act issued to the petitioner did not assign any reason for terminating tenancy and for that reason initiation of action under Section 5 of the said Act against him was bad in law. While dealing with that submission the Supreme Court held :-

"Sec. 106 of the T.P. Act does indicate that the landlord isentitled to terminate the tenancy by giving 15 days notice, if IT is a premises occupied on monthly tenancy and by giving a month'snotice if the premises are occupied for agricultural or manufacturing purposes, and on expiry thereof proceedings could beinitiated. Sec. 106 of the T.P. Act does not contemplate of giving any reason for terminating the tenancy. Equally the definition of the public premises 'unauthorised occupation' u/s. 2(g) of the Act, postulates that the tenancy "has been determined for anyreason whatsoever". When the statute has advisedly given widepower to the Public Authorities under the Act to determine the tenancy, it is not permissible to cut down the width of the powerby reading into it the reasonable and justifiable grounds forinitiating action for terminating the tenancy u/s. 106 of theT.P.Act. If it is so read Sec. 106 of T.P. Act and Section 2(g) of the Act would become ultra vires."

11. So, the ground of the mezzanine floor having been allegedly constructed by the plaintiffs as given in the notices Ex. D-12 to D-15 has no relevance in the matter of terminating their tenancies under Section 106 T.P. Act nor that ground has any relevance whatsoever as regards the reliefs of declarations and possession claimed in the suit.

12. Issues 4 and 5 are answered accordingly.

ISSUES 2 & 3:

13. These issues essentially are covered by issue No. 4 and no separate findings need be recorded on them.

ISSUE NO.1:

14. Cause of action to file the suit arose to the plaintiffs only after the eviction proceedings were initiated against them under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 by defendant No. 1 bank. Although the exact date (s) of initiation of those proceedings are not available on record but the same must have been started only after the execution of sale deed and registration thereof in favour of defendant No.1 bank. Those dates being in February/June 1974 the suit filed on 11th July ,1977 was within limitation.

ISSUE NO. 6:

15. There is no cogent evidence to show as to what was the value barring the portion on the ground floor of said property 29-B on the date the plaintiffs sought the recovery of possession of the portion in occupation of defendant No.1 bank by seeking amendment in the plaint. In the absence of evidence to that effect, suit must be held to have been valued properly for the purpose of court fees as regards relief of possession.

ADDITIONAL ISSUE:

16. Reliefs for declarations and possession as claimed in the amended plaint could not be granted to the plaintiffs under the provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1971. Therefore, the present suit cannot be held to be barred under Section 15 of that Act.

17. In view of the findings particularly on said issue No. 4, the suit deserves to be dismissed.

18. Accordingly, the suit is dismissed with costs.