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PETITIONER: DATTONPANT GOPALVARAO DEVAKATE

       Vs.

RESPONDENT: VITHABRAO MARUTHIRAO JANAGAVAI,

DATE OF JUDGMENT03/04/1975

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. KRISHNAIYER, V.R.

CITATION:  1975 AIR 1111            1975 SCR   67  1975 SCC  (2) 246  CITATOR INFO :  O          1979 SC1745  (16)  RF         1980 SC1253  (3)  R          1980 SC1422  (7)  RF         1991 SC 744  (10)  RF         1992 SC1696  (5)

ACT: Transfer of Property Act (4 of 1882), Sections 106, 110  and 111-Scope of.

HEADNOTE: The appellant was tenant under the respondent’s  predecessor for  a period of one year tenancy commencing from  April  9, 1945.  The respondent purchased the property in August, 1968 and  the appellant became his tenant. On November  19,  1968 the respondent gave notice to the appellant terminating  his tenancy  and asking him to deliver possession by December  8 1968.   Thereafter he filed an application for  eviction  of the appellant under the Mysore Rent Control Act, 1961.   The trial   court  dismissed  the  application  but  the   first appellate  court  allowed  the appeal  and  the  High  Court confirmed the order in revision. In  appeal to this Court it was contended, inter alia,  that there was no valid notice terminating the tenancy. Allowing the appeal to this Court, HELD : (1) There are no grounds justifying the  interference with  the findings of fact recorded by the  first  appellate court  and the High Court that the respondent  required  the premises   reasonably  and  bona  fide  for   his   personal occupation,  and  that no hardship would be  caused  to  the tenant by passing the decree. (2)  The  lease was not for a manufacturing purpose and  the holding over by the appellant under s. 1 1 6 of the Transfer of  Property Act created a monthto-month tenancy  terminable by 15 days notice ending with the tenancy month given  under s. 106 of the Transfer of Property Act. [70B]. (3)Under  s.  110  of  the  Transfer  of  Property  Act,  in computing the period of one year the date of commencement of the  tenancy,  that is, April 9, 1945, had to  be  excluded. Therefore,  the one year’s tenancy ended on April  9,  1946. By holding over the tenancy from month-to-month started from April 10, 1946 ending on the 9th day of the following month.

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Therefore,  the view taken by the first appellate court  and by  the High Court that the one year’s tenancy ended on  the 8th April, 1946 and hence the monthly’ tenancy started  from the  9th  day  of the month ending on the  8th  day  of  the following month is clearly erroneous in law.  That being  so there was no valid and legal termination of the  contractual tenancy. [70 E, F & H]. Benoy  Krishna Das and others v. Salsiccioni and others  59, Indian Appeals, 414, applied. (4)The  appellant  was a contractual tenant who  would  have become a statutory tenant within the meaning of s. 2 (r)  of the  Mysore  Act if he would have  continued  in  possession after the termination of the tenancy in his  favour. Without termination  of  the contractual tenancy by a  valid  notice or   other  mode  set  out  in s. Ill  of  the  Transfer  of Property Act, it was not open  to the landlord to treat  the appellant  as  a  statutory tenant  and  seek  his  eviction without service of a valid notice to quit. [71 D]. Ganga Dutt Murarka v. Kartik Chandra Das and others [1961] 3 S.C.R.813  and Pooran Chand v. Motilal and others  [1963]  2 Suppl.  S.C.R. 906, referred to. 68

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1180(N) of 1974. Appeal  by special leave from the judgment and  order  dated the 29th March, 1974 of the Karnataka High Court in C. Revn. Petn.  No. 1054 of 1973. V.   S. Desai and R. B. Datar for the appellant Y.   S.  Chitale,  P. C. Kapur and Y. N.  Ganpule,  for  the respondent. The Judgment of the Court was delivered by UNTWALIA,  J.-The  defendant-appellant  in  this  appeal  by special leave was a tenant of the suit premises situated  in the  town of Hubli when the plaintiffs-respondent  purchased the  property  from the original owners by  two  sale  deeds executed in August, 1968.  The appellant thereafter became a tenant  under  the  respondent.  The latter  gave  a  notice purporting to terminate the former’s tenancy and  thereafter filed an application under section 21(1) (a) and (h) of  the Mysore Rent Control Act, 1961-hereinafter referred to as the Act,  for his eviction from the suit premises consisting  of two  shops.   The  appellant resisted  the  application  for eviction  on several grounds.  The Trial Court dismissed  it but on appeal by the landlord the District Judge allowed the application  for eviction.  The tenant filed an  application in  revision  under section 50 of the Act in  the  Karnataka High   Court.   The  High  Court  dismissed   the   revision application.  Hence this appeal. The  issue as to the appellant’s liability to be evicted  on the  ground  mentioned in clause (a) of sub-section  (1)  of section  21 of the Act was not pursued and eventually  given up.  The learned Additional Munsif who tried the application in  the  first instance held against the respondent  on  the question  of  the  premises being  reasonably  and  bonafide required  by the landlord within the meaning of clause  (b). He also held that having regard to all the circumstances  of the  case  greater’ hardship would be caused  by  passing  a decree  for eviction than by refusing to pass it.   In  that view  of the matter also as provided in sub-section  (4)  of section  21, the Trial Court refused to pass a  decree.   It further held that the lease was for a manufacturing    purpose

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or at least the dominant purpose was a manufacturing one, it was   a  yearly  lease  and  could  not  be  terminated   by less than 6  months notice or in any view of the matter  the notice given even   treating the tenancy to be a monthly one was illegal and invalid. The  learned District Judge in appeal has reversed  all  the findings of the Trial Court.  He has held that the  landlord required the premises reasonably and bonafide for occupation by  himself  and  that no hardship would be  caused  to  the tenant by passing a decree for eviction.  He also held  that the  lease was not for a manufacturing purpose nor a  yearly one.   The notice terminating the monthly tenancy  was  good and valid.  The High Court in revision has affirmed the view of the Appellate Court on all the controversial issues.                              69 Mr.  V.  S. Desai, learned counsel for the  appellant  urged three points in support of this appeal :               (1)   That the findings of the lower Appellate               Court  and  the High Court in  regard  to  the               reasonable  and  bonafide requirement  of  the               suit  premises for occupation by the  landlord               are vitiated in law.               (2)   The   finding   on   the   question   of               comparative  hardship of the landlord and  the               tenant has been recorded by committing  errors               of law.               (3)   That the notice terminating the  tenancy               was invalid because the lease was a yearly one               being for a manufacturing purpose and even  if the t enancy be a monthly one, the notice  was               not in accordance with law. Mr.  Y.  V. Chitaley controverted the  submissions  made  on behalf  of the appellant and added in the  alternative  that the appellant was a statutory tenant and hence no notice was required  to be given before seeking a decree  for  eviction against him. The  appellant  had taken the suit premises on  rent  for  a period  of  one year from the  respondent’s  predecessors-in interest  by  a written document Ext.  P-12  dt.  15-6-1945. The   tenancy  commenced  from  9-4-1945.   The   respondent purchased the property in August, 1968 and gave a notice  on 19-11-1968  which was served on the appellant on  21-11-1968 terminating his tenancy and asking him to deliver possession by  the 8th December, 1968.  We have been taken through  the portions of the judgments of all the three courts below  and the relevant pieces of documentary and oral evidence adduced by  the  par-ties.   On  the  question  of  the   respondent requiring the suit premises reasonably and bonafide for  his personal  occupation  as also on the  point  of  comparative hardship  two  views were possible on the materials  in  the record  of  this case.  A view in favour of the  tenant  was taken  by the Trial Court but against him by  the  Appellate Court.  The findings of fact recorded by the Appellate Court were  not found to be such by the High Court as  to  justify the exercise of its revisional power under section 50 of the Act.  It is true that the power conferred on the High  Court under  section 50 is not as ,narrow as the revisional  power of  the High Court under section 115 ,.of the Code of  Civil Procedure.   But at the same time it is not wide  enough  to make  the High Court a second court of first appeal.  We  do not think that there are such pressing grounds in this  case which  would  justify our upsetting the views  of  the  High Court confirming those of the lower Appellate Court.  It  is not  necessary  to discuss the first two  points  urged  on behalf of the petitioner in any detail and we reject them on

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the short ground mentioned above. Coming  to the question of notice we would like to state  at the outset that on the basis of the evidence in the case the Appellate  Court took the view that the lease was not for  a manufacturing  purpose.   The lease was for one  year  which expired on 9-4-1946.  The tenant held over under section 116 of  the  Transfer  of Property Act.   ’Ext.   P-12  did  not mention the purpose of the lease.  The learned 70 District Judge was of the opinion that the appellant started manufacturing  Soda  in  a small  portion  of  the  demised, premises  after  the lease for one year was taken.   In  any view of the matter the dominant purpose of the lease was not a manufacturing one but was the sale of aerated water.   The High Court has affirmed this finding in revision.  We do not feel inclined to upset the findings of the two courts  below in  this  regard.   If the purpose of the lease  was  not  a manufacturing  one, then the holding over under section  116 of  the  Transfer of Property Act created  a  month-to-month tenancy terminable by 15 days notice ending with the tenancy month given under-section 106 of the said Act. The appellant, however, must succeed on the last  submission made on his behalf that even so, the notice was invalid.  As already stated the notice purported to terminate the tenancy by  the 8th December, 1968 treating the month of tenancy  as commencing  from the 9th day of a month and ending.  on  the 8th day of the month following.  The requisite period of  15 days was given but the defect in the notice was that it  did not  expire with the end of the month of the  tenancy.   The end of the month of the tenancy was the 9th day and not  the 8th day as wrongly held by the High Court affirming the view of the lower Appellate Court. Under Ext.  P-12 the appellant agreed to pay Rs. 600 as rent for   one  year  from  9-4-1945.   The  tenancy   obviously, therefore,  commenced from that date.  That being so,  under section.,110  of the Transfer of Property Act  in  computing the  period of one year the date of commencing i.e. the  9th day of April, 1945 had to be excluded.  The    one    year’s tenancy ended on the 9th April, 1946.It is clearly mentioned to be so in Ext.  P-12 in these words :               "I  shall make use and enjoyment of  the  said               shops as a               tenant for one year and deliver your shops  to               you without objections on 9-4-1946". By holding over the tenancy from month-to-month started from the 10th April, 1946 ending on the 9th day of the  following month  This view finds support from the Rent  Receipts  Ext. D-1 and D-I(a)The evidence on behalf of the respondent  that there was a mistake in those receipts is not correct as  the said  receipts  are in conformity with Ext.  P-12.   On  the other hand Ext.  P-13 and P-14, the other two Rent Receipts, being not in accord with Ext.  P-12 could not be relied  on. In  Ext.  P. 16 the Controller by his order dated  29-9-1963 while  fixing  the  fair rent of the suit  premises  at  Rs. 10501-  per  year had fixed it with effect  from  10-4-1963. That also shows that the: tenancy month commenced from  10th day  of  a month and ended on the 9th day of  the  following month. The view taken by the learned District Judge as,also by  the High  Court  that the one year’s tenancy ended  on  the  8th April, 1946 when the tenant agreed to deliver possession  on the 9th April and hence the monthly tenancy started from the 9th day of the month ending on the 8th day of the  following month is clearly erroneous in law-                              71

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That  being so there was no valid and legal  termination  of the contractual tanancv. In Benoy Krishna Das and others v. Salsiccioni and others(1) on  the  facts  of  that case  Lord  Tomlin  delivering  the judgment of the judicial Committee of the Privy Council held the notice to be valid.  A lease for residential purposes of certain property in Calcutta was expressed to be front  June 1, 1921, for the ensuing four years.  The tenant held  over. The  monthly  tenancy  was sought to be  terminated  by  the lessee stating therein that possession would be given up  on March 1. The landlord’s contention that the notice ended  on February  29, 1928 was not accepted.  The four  years  lease was  held  to have ended on midnight of June 1,  1925.   The monthly tenancy began on the 2nd of the month ending on  the 1st and so the notice was held to be valid. We do not think that the alternative argument put forward by Mr.  Chitaley that no notice was necessary in this  case  is correct.   The appellant was a contractual tenant who  would have become a statutory tenant within the meaning of  clause (r)  of section 2 of the Act if he would have  continued  in possession  after  the  termination of the  tenancy  in  his favour.    Otherwise  not.   Without  termination   of   the contractual tenancy by a valid notice or other mode set  out in  Sec. II I T. P. Act it was not open to the  landlord  to treat  the  appellant a,,; a statutory tenant and  seek  his eviction without service of a notice to quit. In support of his contention Mr. Chitaley placed reliance on two  decisions  of this Court namely Ganga Dutt  Murarka  v. Kartik  Chandra  Das and others(2) and in  Pooran  Chand  v. Motilal  &  others(,’).   Neither  of  these  supports   his contention.   In  the case of Ganga Dutt Murarka  a  passage from  the decision of the Federal Court in the case  of  Kai Khushroo Bezonee Capadia v. Bai Jerbai Hirjibhoy Warden  and another(1) was quoted with approval.  A portion of it may be usefully quoted here also.  It runs thus :               "In  such circumstance, acceptance of rent  by               the  landlord  from a statutory  tenant  whose               lease   has  already  expired  could  not   be               regarded  as  evidence of a new  agreement  of               tenancy,  and it would not be open to  such  a               tenant  to urge, by way of defence, in a  suit               for  ejectment brought against him, under  the               provision  of  Rent Restriction  Act  that  by               acceptance of rent a fresh tenancy was created               which  had to be determined by a fresh  notice               to quit. The tenancy of the appellant in the above case was found  to have  been  determined  by efflux  of  time  and  subsequent occupation was not in pursuance of any contract, express  or implied but by virtue of the protection given by  successive statutes.  In the case of (1)  59, Indian Appeals, 414, (2)  [1961](3) S.C.R. 813. (3)  [1963] (2) Suppl.  S.C.R. 906. (4)  [1949] Federal Court Reports, 262. 10 SC/75-6 72 Pooran  Chand,  Subba Rao, J. as he then was, said  at  912, when a similar argument was advanced before him : -               "It is not necessary in this appeal to express               our   opinion   on  the   validity   of   this               contention, for we are satisfied that the term               of the tenancy had expired by efflux of  time;               and,  therefore,  no  question  of   statutory               notice would arise."

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No  notice  is necessary if a lease  of  immovable  property determined  under clause (a) of section 111 of the  Transfer of Property Act by efflux of the time limited thereby. In the result we allow this appeal and set aside the  decree of  eviction passed against the appellant and in  favour  of the  respondent by the lower Appellate Court as affirmed  by the High Court.  In the circumstances we shall make no order as to costs. Appeal allowed.  V.P.S. 73