JUDGMENT
N.D. Patnaik, J.
1. This Appeal is filed by the defendant in O.S. No. 121 of 1985 in the Court of the II Additional Subordinate Judge, Visakhapatnam. The respondent, who is the owner of the house situate at Visakhapatnam and which is let out to the defendant, filed the suit for eviction and for recovery of past profits.
2. The Plaintiff’s case is that the defendant had taken the house on lease from 1-12-1981 for a period of 11 months renewable periodically upto 3 years and so the tenancy came to an end by efflux of time on 30-11-1984.
3. The defendant contends that the tenancy is for a period of 5 years renewable by 2 more years. He further contends that since there is tenancy holding over, there should be a valid notice under Section 106 of the Transfer of Property Act and as there is no such notice the suit must fail on that ground.
4. The lower Court held that the tenancy was determined by efflux of time and so there is no need to give a notice under Section 106 of the Transfer of Property Act. It held that the notice – Ex.A-7 given by the plaintiff does not strictly satisfy the requirements of Section 106 of the Transfer of Property Act and it is not a valid notice. In view of the finding that the tenancy had determined by efflux of time the lower Court decreed the suit.
5. In this appeal, the learned Counsel for the appellant (defendant) Sri Mangu Venkata Rao contends that if the lease is for a period of one year or more it has got to be created by a registered document, as provided under Section 107 of the Transfer of Property Act, and as there is no such registered document the tenancy is continued from month to month in which case a valid notice under Section 106 of the Transfer of Property Act is necessary. Alternatively, he contended that even if it is treated as lease for 3 years, as contended by the plaintiff, which had come to an end by 30-11-1984; since the defendant was continuing as lessee of the premises and had also paid the rents by crediting it to the joint account of the plaintiff and her husband in the Bank, he becomes a tenant holding over, in which case also a notice to quit is required.
6. The learned Counsel for the appellant has relied upon a decision of the Supreme Court, in Satish Chand v. Govardhan Das, . In that case the property was leased out for a period of 5 years. After the expiry of that period the parties entered into an agreement to renew the monthly lease for a further period of 9 years, which was reduced in writing but not registered. Based upon the plea taken in the Written Statement that there was a renewal of lease for a period of 9 years, the High Court as well as the Courts below held that the lease was determined by efflux of time under Section 111(a) of the Transfer of Property Act and no notice was required under Section 106 of the Transfer of Property Act for determination of the lease. The Supreme Court has pointed out:-
“Where a person holds over under an unregistered lease and continues in possession by paying the monthly rent, the holding over must be held as a tenancy from month to month: Mulla’s Transfer of Property Act, 5th Edition, p.762. It was definitely wrong on the part of the High Court to have proceeded on the assumption that the lease Was for a specific term of nine years and therefore the lease stood determined by efflux of time under Section 111(a) of the Transfer of Property Act, and that the defendants were tenants at sufferance and no quit notice was required. It is no doubt true, that where the lease is for a definite term, it stands determined by efflux of time under Section 111(a) of the Transfer of Property Act, and the erstwhile tenant becomes a tenant at sufferance, but that is not the case here. The legal position is not contested and it was fairly conceded that the defendants were holding over under Section 116 of the Transfer of Property Act as tenants from month to month, and further that no notice as required by Section 106 was served on them. That being so, the plaintiffs suit for ejectment as framed was not maintainable.”
7. Mr. Vilas Afzulpurkar, the learned Counsel for the respondent has distinguished the decision on the ground that it does not apply to the facts of the present case. His contention is that from the pleadings of this case it can be seen that the lease is only for a period of 11 months, renewable from time to time, ultimately it was determined by 30-11-1984 and, therefore, it is not a lease which is required to be registered under Section 107 of the Transfer of Property Act, therefore he contends that the defendant is not a tenant holding over merely because he continues in possession after 30-11-1984. He has also relied upon a decision of the Division Bench of the Karnataka High Court in M/s. Sudarshan Trading Co. Ltd., v. L.D’ Souza, . In that case the premises was let out for a period of 3 years after an earlier lease for 3 years came to an end. After the period of 3 years the land-lord issued a notice informing the tenant that he did not desire to renew the lease and the tenancy is to be terminated and called upon the tenant to quit and deliver vacant possession and later on the suit was filed. One of the points considered in that case was where there is a month to month tenancy by holding over after the expiry of the term under the lease deed, it was held that:- “if, after the expiry of the period of lease or after its determination, a tenant merely holds over without the landlords’ consent there is no tenancy of any kind at all. If in such case, the tenant continues in possession without landlord’s consent he becomes what in English law is called a ‘tenant by sufferance’. This is really no tenancy at all in the strict sense and requires no notice to determine it, the expression being merely a fiction to avoid the continuance of possession operating as a trespass. It is different from the concept of a tenancy at will which arises by implication of law in certain cases of permissive possession. No notice is necessary to terminate tenancy at sufferance. But the case of tenancy by holding-over is different and is governed by the provisions of Section 116 of Transfer of Property Act. Tenancy by holding-over is a creature of a bilateral, consensual act and does not come into existence by a mere unilateral intendment or declaration of one of the parties.”
The learned Counsel for the respondent had also referred to another point that was decided in that case that in view of the circumstances that even the lease as set up by the defendant has come to an end, the Court can take into account the subsequent event and affirm the decree for ejectment. At paragraph 19 of the said decision (2 supra) it is stated that:-
“Where plaintiff bringing a suit for ejectment on the allegations that the lease in favour of the defendant has either expired or is determined; but the defendant sets up a different lease it will be permissible for the Court to grant relief to the plaintiff on the basis of the admitted case of the defendant, if with reference to the case so admitted, no reasonable defence is available to the defendant and an order granting possession appears justified. The Court could grant such relief on the principle that if such an alternative relief could possibly have been sought for by the Plaintiff, it should be allowed to him to the same extent as if it had been specifically asked for.”
8. In view of these conflicting contentions, it, therefore, becomes necessary to examine the case of both parties as set out in the relevant pleadings. In para 3(c) of the plaint it is stated that the plaintiff’s husband suggested the condition, viz., that the period of lease is 11 months in the first instance. After expiry of 11 months the defendant has got an option for renewal for a period of three years by renewing the original lease periodically for 11 months. If a lease deed is required for a period of three years at a stretch, the same is to be executed on a stamp and got it registered at the expenses of the defendant. In para 3(f) of the plaint it is stated that as per the correspondence between the plaintiff and the defendant the lease period would expire by 30-11-1984. The defendant is continuing in the building on a monthly tenancy. In para 3 of the Written Statement it is stated that the defendant negotiated once again with the husband of the plaintiff in November, 1981 and, consequently, it was agreed that the lease is to be for 5 years with an option to the lessee to renew the lease for two more years and, accordingly, an agreement was entered into between the defendant and the plaintiff’s husband incorporating the terms. In para 4 of the Written Statement the defendant contended that the plaintiff’s case that the lease expired on 30-11-1984 is untenable and that the further contention that he is continuing in the lease-hold premises on a monthly tenancy is incorrect and equally untenable. In para 7 of the Written Statement he says that even accepting the contention of the plaintiff that the tenancy is not for a period of 5 years initially, he being a tenant holding over, the quit notice issued by the plaintiff is not valid as the defendant has allowed to continue in the premises after expiry of the original stipulated period.
9. Therefore, it can be seen that while the plaintiff had contended in the suit that the period of lease is only 11 months, in the first instances, renewable periodically for 11 months, ultimately for three years, the defendant had contended that the lease is for 5 years renwable for 2 more years. Admittedly, there is no lease deed executed between the parties and the terms are decided only by exchange of correspondence. Ex. A-l is a letter, dated 4-10-1981 written by the defendant to the plaintiffs husband requesting him to let out the building for opening the Nursing Home and also asking him to inform the terms and conditions. Ex.A-2 is a letter, dated 10-10-1981 addressed by the plaintiff’s husband to the defendant, in which it is stated that he intends to let out the building under the terms stipulated therein. One of the terms is that the lease is for a period of 11 months in the first instance and after the expiry of 11 months the defendant is entitled to ask for renewal for another 11 months, likewise for a period of 3 years by renewing the same periodically for every 11 months, and if he wants to have a lease at a stretch for three years he will have to get the lease registered at his expenses. Ex.A-3 is a letter, dated 15-10-1981 from the defendant to the plaintiff’s husband in response to his letter, dated 1010-1981 (Ex.A-2), in which he accepted the terms and conditions set out in the said letter and stated that the lease is to begin from 1-12-1981. Ex.A-4 is another letter, dated 3-11-1981 from the defendant to the plaintiff’s husband, in which he referred to the terms and conditions orally agreed between them and wanted confirmation. One of the conditions was that the period of lease is for five years, which is subject to renewal for a further period of five years after the expiry of the original period. There is another letter, dated 7-11-1981 – Ex.A-5 from the defendant to the plaintiff’s husband, in which he promised to meet him and finalise the deed to be written after returning from Hyderabad and he agrees upto a period of three years instead of the lawyer’s note as five years. There is no letter on record subsequently from the plaintiff’s husband in response to Exs.A-4 and A-5. Therefore, it can be seen from the correspondence that originally the plaintiff’s husband proposed lease for 11 months renewable periodically upto three years, which was accepted by the defendant, but, subsequently, there appears to be a proposal to have the lease for five years. Though the plaintiff’s husband was examined as P.W.1 on behalf of the plaintiff, neither the defendant nor anybody on behalf of the defendant were examined.
10. Considering the exchange of correspondence referred to above, I have no hesitation in coming to the conclusion that the parties have agreed that the lease is, initially, to be for 11 months renewable periodically up to a maximum of three years. The defendant did not produce any evidence to show that there was another agreement, whereby the lease was stipulated for five years renewable for two years. The total period of three years came to an end on 30-11-1984. Ex.A-7 is a notice, dated 5-7-1984 issued by the plaintiff’s advocate to the defendant, whereby the defendant was informed that the term of three years will expire by 30-11-1984 and that the plaintiff does not want the tenancy to continue after the expiry of the lease. The defendant was also informed to make alternative arrangements to run his Nursing Home elsewhere and vacate the building on or before 1-12-1984. I, therefore, agree with the finding of the lower Court that the tenancy was determined by efflux of time on 30-11-1984 because the periodical renewals have come to an end and no further renewal was made thereafter.
11. Mr. M. Venkata Rao, the learned Counsel for the appellant has pointed outthatanamountofRs.10,000/-was kept as deposit with the plaintiff towards advance of rent when the tenancy had commenced, that the defendant deposited some amounts towards rent in the joint account of the plaintiff and her husband in the bank, which were withdrawn either by the plaintiff or her husband and, therefore, the plaintiff had allowed the defendant to continue as tenant of the premises even after the lease was determined on 30-11-1994 and so the defendant is a tenant holding-over and without a valid notice to quit he cannot be evicted. The suit was filed in February, 1985. The defendaht deposited an amount of Rs. 3,500/- on 4-2-1985; Rs. 4,500/- on 1-3-1985; another sum of Rs. 4,500/- on 6-7-1985 and lastly Rs. 4,500/- on 6-8-1985 in the account of the plaintiff and her husband in State Bank of India, Dwarakanagar Branch, Visakhapatnam, as could be seen from the counter-affidavit filed by the plaintiff in C.M.P. No. 16735 of 1990. The plaintiff further stated in her affidavit that the deposits were made without informing her and without her knowledge.
12. Mr. Vilas Afzalpukar, the learned Counsel for the respondent has contended that there is no evidence on the side of the defendant to show that the plaintiff agreed to receive the rent after the tenancy was determined on 30-111984 and if the defendant happens to deposit some amount in the bank to the credit of the plaintiff without her knowledge it cannot be said that he is a tenant holding-over. Section 116 of the Transfer of Property Act reads that:-
“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 underlessee, or others 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 under Section 106.”
13. In M/s. Sudarshan Trading Co. Ltd. v. L.D’ Souza (2 supra) it was pointed out that tenancy by holding-over is a creature of bilateral, consensual act and does not come into existence by a mere unilateral intendment or declaration of one of the parties. In the absence of any evidence that the plaintiff or her husband have agreed to receive the rent after the expiry of the lease on 30-11-1984, the fact that the defendant had credited some amounts to the plaintiff’s bank account unilaterally does not create a tenancy by holding-over. Like-wise, I am unable to agree with the contention of Mr. M. Venkatarao, the learned Counsel for the appellant that because the respondent-plaintiff has not returned some amount, which was paid as advance towards rent at the time when the premises was taken on lease, alongwith notice Ex. A-7, that amounts to the plaintiff accepting the defendant as a tenant holding-over. If the defendant had paid any amount towards advance of rent, that can be refunded to the defendant after adjusting it towards the amount if any due to the plaintiff.
14. In view of my finding that the tenancy had come to an end on 30-11-1984 by efflux of time and that the defendant is not continuing as tenant holding-over there are no grounds to interfere with the Judgment and Decree passed by the lower Court. Hence, the appeal is dismissed without costs.
15. Sri M. Venkata Rao, learned Counsel for the appellant has requested that as the defendant is a Doctor running a Nursing Home in the premises; some reasonable time may be granted to him for vacating the premises. Having regard to the facts and circumstances of the case, I feel that it will be reasonable to grant him four months time from to-day for vacating the premises on the condition that he shall deposit the arrears of rent, as determined by the lower Court, by 15th June, 1994 and also continue to pay the rent for the four months regularly.