Unknown vs Ranu Sen And Others
2024 Latest Caselaw 16993 Ori

Orissa High Court

Unknown vs Ranu Sen And Others on 22 November, 2024

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                             RSA No.340 of 2017

         (From the judgment and decree dated 18.7.2017 and
         28.7.2017 respectively passed by learned District Judge,
         Balasore in R.F.A. No.49/115 of 2009/2006, allowing the
         same and in the process setting aside the judgment and
         decree dated 29.7.2006 and 5.8.2006 passed by learned
         Civil Judge (Jr. Division), Balasore in T.S. No.486/1997)


A.F.R.
           Sanatan Bardhan (since dead)
           Represented through her L.Rs
           Mana Mohini Bardhan and others

                                                   ...            Appellants


                                       -versus-

           Ranu Sen and others                       ...            Respondents


          Advocates appeared in the case through hybrid mode:

            For Appellants                   :    Mr.S.K.Mishra,
                                                  Sr.Advocate
                                                  Mr.J. Pradhan, Adv.

                                        -versus-
            For Respondents
                                               : Mr. R.K.Nayak, Advocate.
            ---------------------------------------------------------------------------
                                      CORAM:
                      JUSTICE SASHIKANTA MISHRA

                                   JUDGMENT

22.11.2024.

Sashikanta Mishra,J. This is a Defendant's appeal against a

reversing judgment. The judgment passed by learned

Addl. District, Balasore on 18.7.2017 followed by

decree in R.F.A. No.49/115 of 2009/2006 is under

challenge whereby the judgment dtd.29.7.2006

followed by decree passed by learned Civil Judge

(Jr. Division), Balasore, in T.S. No.486 of 1997-I was

reversed.

2. For convenience, the parties are referred to as

per their respective status in the trial Court.

3. The suit in question was filed by the Plaintiff-

respondents for eviction of the defendant from the suit

house. The facts of the case, relevant for deciding the

present appeal are that the suit house belongs to late

Sisir Ch. Sen, the predecessor of the plaintiffs. He

inducted the defendant as a monthly tenant for one

year @ Rs.300/-. The defendant paid the house rent

to said Sisir till his death whereafter, the plaintiffs

having succeeded to the property accepted rent from

him. The defendant was asked by the plaintiffs to pay

enhanced rent @ Rs.800/- per month as per the

prevailing market rate but he did not pay the same nor

cleared the arrear dues. As such, on 9.12.1996 the

plaintiffs served Advocate's Notice on the defendant

but the same was not responded to. On 15.12.1996,

the suit house was found in a dilapidated condition

needing urgent repair for which the plaintiffs asked the

defendant to vacate the same but he did not vacate the

house and continued to default in paying the enhanced

rent from the month of October, 1995. Hence, the suit.

4. The defendant contested the suit by filing

written statement challenging its maintainability. It is

his case that no valid notice as per the provision under

Section 106 of the Transfer of Property Act had ever

been served upon him. Further, he was paying rent

regularly to the plaintiffs for which receipts were

issued by them. Initially the rent was Rs.300/- but

since October, 1989, he paid the same @ Rs.330/-

which was enhanced to Rs.360/- from October, 1992.

On 06.10.1995, when he went to the house of the

Plaintiffs to pay the rent, they asked him to come later

as they were busy in the funeral ceremony of Sisir.

Again on 31.10.1995, when the defendant approached

the plaintiffs, he was told that the old rent receipt book

could not be traced out. The defendant remitted a sum

of Rs.720/- for the months of September and October,

1995 through money order to Plaintiff No.1, which was

duly acknowledged. Since then he has been remitting

the house rent every month by money order to the

Plaintiff No.1. However, on 27.11.1995 Plaintiff No.6

served a legal notice through his Advocate for

enhancement of the house rent to Rs.600/-, to which

the defendant replied on 14.12.1995. Again after one

year he was served with a legal notice enhancing the

rent to Rs.800/- per month. The defendant submitted

his reply through his Advocate. It is further pleaded by

the defendant that all the Plaintiffs are carrying out

different businesses and none of them has bonafide

requirement of the suit house but filed the suit only to

evict him there from.

5. Basing on the rival pleadings, the Trial Court

framed the following issues for determination;

(1) Is the suit maintainable?

(2) Is there any cause of action to file this suit?

(3) Whether any notice is required to be served on the defendant for evicting him from the suit house, if so whether any notice was duly served on the defendant as per law?

(4)Are the plaintiffs entitled to a decree for evicting the defendant from their suit house?

(5) To what other relief(s), the plaintiffs are entitled?

6. Taking up Issue No.3 for consideration at the

outset, the trial court posed two questions for

determination namely, whether any notice is required

to be served on the defendant for evicting him from

the suit house and whether any notice was duly served

on him as per law. Analyzing the oral and documentary

evidence, the trial court found that Sisir Ch Sen and

after him, the plaintiffs were the landlords and that

defendant was a tenant under Sisir and after him, the

plaintiffs. It was held that there is no contract at all by

which more parties are bound and therefore, the

tenancy would be treated as tenancy at will. Holding

so, it was held that notice under Section 106 is

required to be served on the defendant for evicting him

from the suit house.

7. Coming to the second question, the trial Court

found that initially the Plaintiff No.6 had served a legal

notice, but the same being only on behalf of one of the

co-owners cannot be treated as a valid notice. As

regards the subsequent notice served on behalf of all

the co-owners, the Trial Court found that only 7 days

time had been granted to vacate the suit house, which

is not in consonance with the provision of Section 106

of the T.P. Act. The issue was thus answered against

the plaintiffs. The remaining issues were also

accordingly answered against the plaintiffs and the

suit was dismissed.

8. Being aggrieved, the plaintiffs carried the matter

in appeal. After analyzing the provision under Section

106 of the T.P.Act and the oral and documentary

evidence on record, the First Appellate Court found

that the lease agreement executed between the original

owner and the defendant is an unregistered agreement

executed on 29.12.1987 for a period of one year i.e. up

to 28.12.1988. Thereafter the tenancy continued

without any agreement. As per Section 17 of the Indian

Registration Act, any tenancy created for term

exceeding one year requires compulsory registration.

Since the defendant continued beyond the period of

one year on the basis of the unregistered lease

agreement he became a tenant from month to month

and therefore, no notice terminating his tenancy was

necessary in view of Section 111(a) of the Act. Since

the defendant continued in possession in absence of

an assent by the lessor, he would be a tenant by

sufferance and can be sued for ejectment at any time

without any previous notice or demand of possession.

Further, being a trespasser and not a tenant

holding over, no notice is necessary. On such finding,

the appeal was allowed and the defendant was directed

to give vacant possession of the suit house to the

plaintiffs along with the arrear house rent.

9. Being further aggrieved, the defendant has

preferred the present Second Appeal, which was

admitted on the following substantial questions of law;

"Whether the finding of the First Appellate Court that no notice under Section 106 of the Transfer of Property Act (TOP Act) is required to be served upon the Defendant-Respondents asking him to vacate the tenanted shop house within the time as prescribed/stipulated is legally sustainable."

10. Heard Mr. S.K.Mishra, learned Senior counsel

assisted by Mr. J. Pradhan, for the defendant-

appellants and Mr. R.K. Nayak, learned counsel

appearing for the Plaintiff-Respondents.

11. Assailing the impugned judgment Mr. Mishra

would argue that the First Appellate Court fell into

error in treating the defendant as a tenant by

sufferance completely ignoring the evidence on record

that the defendant continued to posses the suit house

long after expiry of the period stipulated in the original

lease, but with full consent of the plaintiffs. According

to Mr.Mishra, the defendant becomes a tenant holding

over for which notice under Section 106 of the T.P.Act

has to be mandatorily served upon him for eviction. In

the case at hand, as rightly held by the trial Court, no

valid notice was issued and therefore, the suit was

dismissed.

12. Per contra, Mr. R.K.Nayak, learned counsel for

the Petitioner submits that the lease in question was

admittedly for a period of one year and expired on

28.12.1988. Since this is a case of a lease expiring by

efflux of time as per Section 111(a) of the T.P. Act, no

notice is required to be served on the defendant for his

eviction. Shri Nayak has cited the judgment of the

Supreme Court in the case of K.M.Manjunath vs.

Erappa G (dead) through L.Rs.1; and argues that if

the lease is for a fixed term, it is not open to the

defendants to plead anything further to determine the

nature of the lease nor can he alter the intrinsic

character of the lease.

2022 SCC Online S.C. 2316

13. From the rival contentions as noted above and in

view of the substantial question of law framed, it is

evident that the only question that is required to be

determined is, whether any notice under Section 106

of the T.P.Act was required to be served upon the

defendant for his eviction from the suit house.

Admittedly, the defendant was inducted as a tenant by

the predecessor of the plaintiffs namely, Sisir Ch. Sen

by executing a lease agreement on 29.12.1987. The

lease deed was admitted into evidence as Ext.3. The

recitals of the agreement would make it clear that the

lease was for one year i.e. from 29.12.1987 to

28.12.1988. Therefore, the lease stood automatically

determined on 28.12.1988 in view of the provision

under Section 111(a) of the T.P.Act, which is quoted

herein below;

"111(a) by efflux of the time limited thereby".

14. Further admittedly, the defendant did not vacate

the suit house upon expiry of the lease but continued

to possess the same. The original landlord died on

1.10.1995 as averred in paragraph-4 of the plaint.

The defendant continued to possess the suit house and

paid rent as per the expired lease deed. Even after the

death of the original land lord, the defendant

continued to possess the suit house and paid rent to

them under receipts issued by them. Several such

receipts have been admitted to evidence as Exts.A, C,

C/1, C/2 etc. There is no evidence whatsoever to show

that prior to issuance of the legal notice

dtd.20.11.1995 (Ext.4), there was any move by

plaintiffs to have the defendant vacate the suit house.

Even reading of Ext.4 would show that there was a

demand for enhancement of the rent purportedly as

per a settlement in the month of September, 1995,

which the defendant allegedly defaulted. Said notice

was issued by Shri N. Panda, Advocate on behalf of

only the Plaintiff No.1 namely, Sanatan Bardhan. As

has been rightly held by the trial Court, said Sanatan

Bardhan could not have issued the notice on his own

in relation to the suit house as he is merely one of the

co-owners. The subsequent notice issued by all the co-

owners (Plaintiffs) on 9.12.1996 again speaks of non-

payment of agreed enhanced rent of Rs.800/- per

month w.e.f. 01.11.1995. All the above facts taken

conjointly would make it manifestly clear that

defendant had continued in the suit house with

consent of the plaintiffs.

15. Keeping the above finding of this Court in the

perspective, a reading of the impugned judgment

reveals that the First Appellate Court, by holding that

the lease had been determined by efflux of time limited

in the agreement as per Section 111(a) of the T.P. Act,

further held that no notice was necessary as after

expiry of such term the lessee (defendant) would be a

tenant by sufferance and therefore, a trespasser but

not a tenant holding over. On such finding, it was held

that no notice is necessary.

16. The distinction between a tenant holding over

and 'tenant at sufferance' has been discussed in

several judgments. This Court, in the case of Raj

Kishore Biswal and others vs. Bimbadhar Biswal

and others; Vol.34 (1992) O.J.D. 499 (Civil) held as

follows;

"14. Under the general law, if a lessee governed by the Transfer of Property Act more often called a tenant, continues in possession of the lease-hold, after the tenancy is terminated, he may be called a 'tenant holding over', if the lessor or his legal representative accepts rent from him or otherwise assents to his continuing in possession. But if it is not so i.e, if his continuance is not by the assent of the lessor, he is merely a "tenant at sufferance", which expression is merely a fiction to distinguish him from a trespasser. A trespasser's possession is wrongful both in its inception as well as in its continuance whereas in case of "tenant at sufferance" his possession was rightful in its inception, but became wrongful in its continuance after termination of tenancy. There exists no relationship between a 'landlord' and 'tenant at sufferance' as lessor and lessee and a suit for his eviction was not necessary to be preceded by a notice u/s. 106 of the Transfer of Property Act. A lease of immoveable property validly created under law can come to an end by various modes as enumerated under Section 111 of the aforesaid Act. Thus "tenancy at sufferance" is not a right at all. Continuance of possession of a "tenant at sufferance" though wrongful, such possession by itself does not become adverse to the lessor. His character of possession the past no doubt was that of a lessee, but not after determination of the lease by any of the modes given in Sec. 111 of the Transfer of Property Act. Continuance of possession with the assent of the landlord could make him a "tenant holding over" but without landlord's assent his attributable to the inaction of the lessor in taking steps for his eviction. In such a position the landlord at any time is entitled to enter upon the land without notice to him and put an end to his continuance in

possession. Therefore, a tenant at sufferance must establish some overt act in defiance of the title of the landlord, so as to change the character of his possession to the possession of a trespasser to enable him to prescribe title against his landlord. That is why, a tenancy at sufferance comes to an end by the demand for possession or by entry by the landlord without notice or by the tenant's quitting. If the landlord demands and the tenant instead of giving up possession still continues to possess his possession thereafter may be sufficient to be categoried as adverse to the landlord."

From a bare reading of the aforequoted

observations, it is clear that when the possession of

the lessee after expiry of the lease is with the assent of

the lessor, he would be a 'tenant holding over' but if

his continuance is not by the assent of the lessor, he is

merely a 'tenant at sufferance', the expression being a

fiction to distinguish him from a rank trespasser.

17. In view of the evidence particularly, the legal

notices(Exts.4 and 5), it would be manifestly clear that

continuance in possession of the defendant after expiry

of the period stipulated in the lease agreement was

entirely with the assent of his landlords (plaintiffs).

Further, there being no express agreement executed

between the lessor and the lessee after expiry of the

original lease, the tenancy would be treated as a

monthly tenancy. In this context, the provision of

Section 116 of the Act would be relevant, which is

quoted herein below;

"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."

18. Such being the legal position, the provision

under Section 106 of the Act requiring 15 days' notice,

cannot be done away with. As has been held and

rightly so by the trial Court, the first notice under

Ext.4 being issued by only one of the landlords is not a

valid notice. The second notice (Ext.5), though issued

on behalf of all the co-owners granted only 7 days' time

to the defendant to vacate the suit house. It goes

without saying that such notice cannot be held to have

fulfilled the requirement of Section 106 of the T.P. Act.

Evidently, the First Appellate Court has fallen into

error in treating, the defendant as a tenant at

sufferance and not a tenant holding over. For the

reasons indicated above, it has to be held that the First

Appellate court committed an error of law. As regards

the case law cited by Shri Nayak, in the facts and

circumstances of the present case narrated above, the

same is not applicable for the reason that in the said

case the Supreme Court held that on expiry of the term

fixed under the deed the tenant would not be entitled

to statutory notice under Section 106 of the T.P. Act.

The facts obtaining in the present case and entirely

different.

19. Thus, from a conspectus of the analysis of facts

and law and the contentions raised by the parties, this

Court is of the considered view that the First Appellate

Court committed an illegality in holding that no notice

under Section 106 is necessary for which the

impugned judgment cannot be sustained in the eye of

law. Since this Court has found that the defendant was

a tenant holding over, there being admittedly no valid

notice served upon him before filing of the suit, the

same was not maintainable and therefore, rightly

dismissed by the trial Court.

20. In the result, the appeal succeeds and is

therefore, allowed. The impugned judgment passed by

the First Appellate Court is hereby set aside. The

judgment passed by the trial Court in dismissing the

suit is confirmed.

.................................. Sashikanta Mishra, Judge

Ashok Kumar Behera

Designation: A.D.R.-cum-Addl. Principal Secretary

Location: High Court of Orissa, Cuttack Date: 25-Nov-2024 11:20:15