Y.Davidson (Died) vs Nagercoil Home Church Csi
2023 Latest Caselaw 14035 Mad

                                                                               S.A.No.1665 of 2003



                        BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED :    19.10.2023

                                                    CORAM

                                    THE HONOURABLE MRS.JUSTICE R.KALAIMATHI

                                               S.A.No.1665 of 2003

                     1.Y.Davidson (died)
                     2.D.Rajadhas
                     3.D.Vijila                                ...Appellants
                                                         vs.

                     1.Nagercoil Home Church CSI,
                      Rep. by its Secretary S.Euztace Nayagom
                      Son of A.Samuel,
                      7/A Louisammal St.,
                      Nagercoil Village,
                      Agasteeswaram Taluk,
                      Kanyakumari District.

                     2.J.S.Chandrasan
                     3.E.G.M.Johnson
                     4.P.Syed Mohamed                             ... Respondents


                     (A2 and A3 are brought on record as LRs of the deceased sole
                     appellant vide Court order dated 24.01.2020 in C.M.P.(MD)No.
                     9146 of 2019 in S.A.No.1665 of 2003)




                     Page 1 of 15
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                                                                                   S.A.No.1665 of 2003



                     Prayer: Second Appeal filed under Section 100 of the Code of Civil
                     Procedure against the Judgment and Decree dated 03.09.2003 in
                     A.S.No.68 of 2002 on the file of the District Judge, Kanyakumari at
                     Nagercoil confirming the Judgment and Decree dated 22.02.2002
                     in O.S.No.845 of 1987 on the file of the Principal District Munsif,
                     Nagercoil.


                     For Appellants                :     Mr.P.Thiyagarajan

                     For Respondents               :     No appearance


                                                       JUDGMENT

Being aggrieved by the Judgment of the First Appellate Court

namely District Court, Kanyakumari at Nagercoil in A.S.No.68 of

2002 dated 03.09.2003, the first defendant, Y.Davidson has

preferred this Second Appeal.

2. For the sake of convenience, parties are referred to as per

their litigative status before the Trial Court.

3. On behalf of Nagercoil Home Church CSI, a suit was laid

against Davidson, Syed Mohamed, Daniel and Chelladurai for

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recovery of possession of plaint schedule properties - non

residential building bearing Door Nos.679 and 680 from the

defendants 1, 2 and 4 and for permanent injunction restraining the

first defendant from evicting the third defendant from the plaintiff's

shop No.681 as per the Judgment in O.S.No.527 of 1984 and for

future mesne profits.

4. According to the plaintiff, the lease has expired on

27.10.1986 by efflux of time. It was further claimed that notice

was issued to the first defendant on 19.02.1987 terminating the

lease in his favour by 27.03.1987 and requesting him to surrender

the vacant possession of the leasehold buildings by 28.03.1987. It

was further claimed that though the first defendant received the

notice on 21.02.1987, he has not surrendered the leasehold

buildings.

5. Counteracting to the plaint details, per contra, it was

claimed by the first defendant that the tenancy was commenced in

the year 1969 for a period of 11 years and 9 months. Thereafter, it

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was extended for five years from 28.10.1980. From 18.10.1985,

for an year, lease was further extended. It was further claimed

that though, thereafter, lease was not extended, he continue to be

a lessee and has been paying rent to the plaintiff as lessee holding

over. Evenafter the issuance of notice dated 19.02.1987, the

plaintiff continues to receive rent from the first defendant accepting

his status as lessee. Therefore, the possession of the first

defendant is legal and as there is no cause of action arose to file

the suit and the suit has to be dismissed.

6. The Trial Court framed relevant issues. At trial, PW1 and

PW2 have been examined. Exs.A1 to A20 were marked. On the

side of the defendants, DW1 and DW2 were examined. Exs.B1 to

B11 were marked. Two Documents have been marked as Exs.X1

and X2.

7. After hearing both sides and upon considering the oral

and documentary evidence, Trial Court decreed the suit, against

which, the first defendant Y.Davidson preferred the First Appeal in

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A.S.No.68 of 2002, which was allowed in part by modifying the

Judgment of the Trial Court as follows.

(i) The suit is decreed for recovery of plaint schedule

properties except shop No.681.

(ii) The quantum of mesne profits will be decided in separate

proceedings.

(iii) Time for eviction is one month.

(iv) The suit is dismissed regarding the prayer for injunction

without costs.

8. Aggrieved by the said Judgment, the first defendant has

preferred this Second Appeal on various grounds besides

suggesting some substantial questions of law.

9. Pending Second Appeal, the appellant, namely,

Y.Davidson has passed away and therefore, his LRs are brought

on record as appellants 2 and 3 in this appeal.

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10. The learned counsel appearing for the appellants would

vehemently argue that the notice which was issued by the plaintiff

on 19.02.1987 was received by the first defendant on 21.02.1987.

As the rent was being paid continuously by the first defendant, it

has to be taken that the first defendant was continuing as a tenant

holding over. He would stress upon the fact that after the receipt

of the notice, as the plaintiff has been receiving rents from the first

defendant and his men, the first defendant is entitled to be

protected under Section 116 of the Transfer of Property Act. To

buttress his arguments, the following Judgments were referred to.

(i) Sri Kayaroganaswamy Neelayadhatchi Amman

Devasthanam represented by its Executive Officer vs.

Nagapattinam Co-operative Housing Society Limited represented

by its Secretary reported in 2012 2 LW 633.

(ii) Arulmigu Vedaranyeswaraswamy Devasthanam vs.

A.Ibrahim Sahib reported in 2017 5 LW 772.

11. Despite service of notice, the respondents neither

appeared nor represented through counsel.

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12. The following substantial question of law arise for

consideration.

"After the issuance of notice, as the plaintiff has been receiving rents, whether the first defendant gets any protection under Section 116 of the Transfer of Property Act?"

13. The significant question which arises for consideration is

'whether notice under Section 106 of the Transfer of Property Act

is necessary for eviction against tenant under the Rent Control

Act'. The answer to the above question was already decided by

Seven Judges Bench of the Hon'ble Apex Court in the year 1979

in the case of V.Dhanapal Chettiar vs. Yesodai Ammal dated

23.08.1979 reported in 1979 AIR 1745. As per the Apex Court

decision, notice under Section 106 of the Transfer of Property Act

is not necessary. Issuance of notice is a mere technicality.

14. As per Section 111 of the Transfer of Property Act,

tenancy comes to end pursuant to the notice dated 19.02.1987

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issued on behalf of the plaintiff to the first defendant terminating

the lease by 27.03.1987, wherein, the first defendant was asked to

surrender the vacant possession of the leasehold buildings by the

next day. Section 111 of Transfer of Property Act is extracted

hereunder.

"111. Determination of lease.—A lease of immovable property determines—

(a) by efflux of the time limited thereby;

(b) where such time is limited conditionally on the happening of some event—by the happening of such event;

(c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event—by the happening of such event;

(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right;

(e) by express surrender; that is to say, in case the lessee yields up his interest under

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the lease to the lessor, by mutual agreement between them;

(f) by implied surrender;

(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease;

(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.

Therefore, by efflux of time, lease was expired on 27.10.1986 and

for subsequent periods of occupation, the first defendant is liable

to pay damages for the use and occupation.

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15. The learned counsel for the appellants would vehemently

contend that after receipt of notice, the first defendant has

continued to pay rent and it was also received by the plaintiff and

the same would amount to waiver under Section 113 of the

Transfer of Property Act. In order to determine whether the said

act of the plaintiff comes under 'waiver' or not, the details of notice

has to be gone into. Ex.A5 (Ex.B2) notice clearly reads that the

tenancy was terminated by 27.03.1987 and the first defendant was

directed to surrender vacant possession of the leasehold building

by 28.03.1987. Therefore, the intention of the plaintiff is so clear

in the pre-suit notice namely, Ex.A5 (Ex.B2). When that being the

case, though the rents were received by the plaintiff, the conduct

of accepting the rent does not amount to 'waiver' for the reasons

mentioned supra. The tenancy which runs after the termination is

not a tenancy afresh. Whether under these circumstances, the

first defendant gets protection under Section 116 of the Transfer of

Property Act or not is the pivot question. The Section 116 of the

Transfer of Property Act is extracted hereunder.

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"116. Effect of holding over— If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section

106."

16. In order to invoke Section 116 of the Transfer of Property

Act, it has to be read along with Section 111 (a) of the Transfer of

Property Act, which deals with the termination of tenancy by efflux

of time. In this situation, whether Section 116 would apply or not is

clarified by the Honourable Apex Court in the decision in

Gangadutt Muraka vs. Kartik Chandra Das reported in AIR 1961

SC 1067, wherein, it has been observed that where a contractual

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tenancy, to which rent control legislation applied, had expired by

efflux of time or be determination of notice to quit and the tenant

continued in possession of the premises, acceptance of rent from

the tenant by the landlord after the expiration or determination of

the contractual tenancy will not afford ground for holding that the

landlord had assented to a new contractual tenancy. It was further

held that acceptance by the landlord from the tenant, after

contractual tenancy had expired, of amounts equivalent to rent, of

amounts which were fixed as standard rent, did not amount to

acceptance of rent from a lessee within the meaning of Section

116 of the Transfer of Property Act. Therefore, when the act of

holding over is created after the expiration of the term, it does not

create a tenancy of any kind. There is a difference between a

tenant continuing in possession after the determination of the

lease with the consent of the landlord and the tenant continuing

without the landlord's consent. If at all the tenant continues with

the landlord's consent, he comes under the 'tenant holding over'.

Here, the tenant is called a 'tenant by sufferance'. So law is well

settled that where a tenant remains in possession after the expiry

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of the date on which he requires to deliver possession, he is not

entitled to take advantage under Section 116 though he has paid

rent for such period. Therefore, based on the aforesaid

discussions, the first defendant cannot seek protection under

Section 116 of the Transfer of Property Act. For the reasons

stated supra, the substantial question of law framed by this Court

is answered in favour of the plaintiff.

17. In the result, the Second Appeal stands dismissed and

the Judgment and Decree passed by the first Appellate Court is

set aside. The suit in O.S.No.845 of 1987 stands allowed. Time

for handing over the possession is four months from today. No

costs.

19.10.2023

NCC:Yes/No Index:Yes/No Speaking/Non-speaking order

mbi

https://www.mhc.tn.gov.in/judis S.A.No.1665 of 2003

To

1.The District Judge, Kanyakumari at Nagercoil

2.The Principal District Munsif, Nagercoil

3.The Section Officer, Vernacular Records Section, Madurai Bench of Madras High Court, Madurai.

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R.KALAIMATHI, J.

mbi

S.A.No.1665 of 2003

19.10.2023

https://www.mhc.tn.gov.in/judis