SA/121/2023
2023 Latest Caselaw 2780 UK

                Office Notes,
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                                  SA No.121 of 2023
                                  Hon'ble Vivek Bharti Sharma, J.

Present Mr. T.A. Khan, senior counsel assisted by Mr. Mohd. Shafy, counsel for the appellant/defendant.

2. Present Ms. Monika Pant, counsel for the respondents/plaintiffs.

3. Learned senior counsel for the appellant/tenant would submit that the respondent/landlord had filed the rent deed executed between the parties wherein it is specifically stated that the tenancy was created for four months i.e. upto August, 1974 only, however, the suit was filed in the year 2016.

He would further submit that as per Article 67 of the Indian Limitation Act, the limitation to file the application/suit to recover the possession from the tenant is 12 years from the date of the determination of the tenancy. He would further submit that as the tenancy had already got terminated by afflux of time as stated in the rent deed filed by the respondent/landlord the suit could have been filed till August, 1986 only, therefore, the suit filed by the respondent/landlord in the year 2016 for eviction and arrears of rent and damages against the appellant/tenant was not maintainable.

4. Counsel for the respondent/landlord would submit that the appellant/tenant continued to pay the rent till 2015 and when he started committing default in payment of rent then a notice under Section 106 of The Transfer of Property Act was served upon him; that, in his written statement the appellant/tenant did not take any objection of limitation.

5. In view of the above submissions of the learned counsel for the respective parties, appeal is admitted on the following substantial questions of law:-

(i) Whether the suit was barred by the limitation since it was not filed within a period of 12 years from the date of termination of tenancy?

(ii) Whether after expiry of a fixed term tenancy of four month since 15.04.1974 the tenancy was terminated automatically on 16.08.1974?

(iii) Whether there was any "Holding Over"

as provided under section 116 of the Transfer of Property Act, in the absence of payment of rent and in the absence of acceptance of rent after automatic termination of tenancy on 16.08.1974?

6. Put up on 28.12.2023.

7. Till the next date of hearing, the effect and operation of the impugned judgment/decree dated 17.07.2023 passed by second Addl. District Judge, Kashipur, District Udham Singh Nagar in Civil appeal No.49 of 2021 and the judgment/decree dated 12.11.2021 passed by 1st Additional Civil Judge (Junior Division), Kashipur in Civil Suit No.15/2016 shall remain stayed.

8. Stay application (IA No.1 of 2023) stands disposed of.

(Vivek Bharti Sharma, J.) 20.09.2023 BS