IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.04.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.Nos.871 and 1009 of 2006 Alagappan .. Appellant in S.A.No.871 of 2006 G.Thabovanam Sri Gnanananda Trust Yercaud rep.by its Trustee Alagappa Chettiar, Yercaud .. Appellant in S.A.No.1009 of 2006 vs. 1. P.J.Ramesh Singh .. 1st Respondent in S.A.No.871/2006
and Respondent in S.A.No.
1009 of 2006
2. Kanagasabapathi
3. The Secretary
Sadguru Swami Sri Gnanananda Giri
Memorial Trust
Sri Gnanananda Ashram, Tapovanam
Tapovanam Post
Villupuram 605 756. … Respondents 2 and 3 in S.A.No.871 of 2006
These two second appeals have been filed against the common judgement and decrees dated 23.02.2005 passed by the learned Additional Subordinate Judge, Salem in A.S.Nos.70 of 2004 and 58 of 2004 reversing the common judgement and decrees dated 07.06.2004 passed by the learned II Additional District Munsif, Salem in O.S.No.40 of 2000 and O.S.No.208 of 2001 respectively.
For Appellant : Mrs.Bhawatharini in both the appeals For Respondents : Mr.S.Kalyana Raman for R1 in S.A.No.871 and 1009 of 2006 Mr.S.V.Subramaniam for RR2 and 3 in S.A.No.871 of 2006 COMMON JUDGMENT
These two second appeals have been preferred by the landlord/Trust inveighing the common judgement and decrees dated 23.02.2005 passed by the learned Additional Subordinate Judge, Salem in A.S.Nos.70 of 2004 and 58 of 2004 reversing the common judgment and decrees dated 07.06.2004 passed by the learned II Additional District Munsif, Salem in O.S.No.40 of 2000 and O.S.No.208 of 2001 respectively.
2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court.
3. A recapitulation and resume of the relevant facts, absolutely necessary and germane for the disposal of these two second appeals would run thus:
a. The plaintiff, viz., G.Thabovanam Sri Gnanananda Trust, Yercaud rep.by its Trustee, Alagappa Chettiar, Yercaud filed the suit O.S.No.208 of 2001 seeking the following reliefs:
– to direct the defendant to vacate Meera Illam let on rent to the defendant and deliver vacant possession to the plaintiff ,
and for costs
(extracted as such)
b. Whereas earlier, the defendant in O.S.No.208 of 2001, viz., Ramesh Singh filed the suit O.S.No.40 of 2000 seeking the following reliefs:
– to grant a permanent injunction restraining the defendants and their men from in any way interfering with the plaintiff’s lawful possession and enjoyment of the suit house property until he is evicted under the due process of law,
– and for costs.
(extracted as such)
b. The respective defendants filed the written statement resisting the suits.
c. Whereupon issues were framed and joint trial was conducted. On the Trust side (landlord’s side), one Kanagasabapathi was examined as P.W1 and Alagappan was examined as PW2 and Exs.A1 to A11 were marked. On the side of Ramesh Singh, the tenant, he examined himself as DW1 and marked Exs.B1 to B14 and the Court documents Exs.C1 to C3 were also marked.
d. Ultimately, the trial court dismissed the suit filed by Ramesh Singh and decreed the suit filed by the Trust/landlord viz.O.S.No.208 of 2001 for eviction. As against the common judgment and decrees of the trial court, the tenant/Ramesh Singh preferred the two appeals. Whereupon the appellate court reversed the common judgment and decrees of the trial court and ultimately dismissed the suit filed by the landlord and decreed the suit filed by the tenant.
e. Challenging and impugning the common judgment and decrees of the first appellate court, these two second appeals have been preferred by the landlord/Trust more or less on the same grounds and and also suggesting the following substantial questions of law:
1. Whether the landlord is not liable to prove any reason for determining the tenancy under Sec.III(h) of Transfer of Property Act?
2. Whether the mere issue of valid notice to quit will determine tenancy and whether the tenant is liable to surrender the possession of leased out property?
3. Whether the nuisance committed by the tenant can be proved only by examination of neighbours?
4. Whether the suit for possession by landlord against erstwhile tenant after issuing valid notice to quit can be dismissed without giving a finding that notice to quit is not valid and that there is no determination of lease?
(extracted as such)
4. Whereas my learned predecessor, while admitting the second appeals, formulated the following substantial question of law:
“1. Whether the lower appellate court has erred in law in reversing the judgments and decrees of the trial court, without recording a finding regarding the validity of the notice issued under Section 106 of the Transfer of Property Act?”
5. After hearing both sides, I have thought fit to frame the following additional substantial question of law also as under:
“2. Whether there is any perversity or illegality in the common judgement of the first appellate court and that too in view of the first appellate court having dealt with various facts, which are not backed by the pleadings?”
6. Heard both sides on the aforesaid points.
7. Both the points are taken together for discussion as they are inter-linked and inter-woven with one another.
8. Admittedly or at least undeniably, the facts would run thus:
The Trust, leased out the suit property in favour of one Ramesh Singh for residential as well as non-residential purpose. The tenant Ramesh Singh filed the suit O.S.No.40 of 2000 apprehending that there might be unlawful eviction of him at the instance of the landlord Trust. Whereupon, the Trust while resisting the suit, issued Ex.A1 statutory notice under Section 106 of the Transfer of Property Act terminating the tenancy of Ramesh Singh by the end of February 2001. The said notice was received by Ramesh Singh even on 09.02.2001. As such, there was more than 15 days’ time for the tenant to vacate the premises as contemplated under Section 106 of the Transfer of Property Act and the first appellate court also based on the deposition of the tenant, as DW1 as under:
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gave a finding that there is no manufacturing process is going on in the premises. However, the first appellate court without any rhyme or reason simply, jumped to the conclusion as though the said termination notice as contained in Ex.A1 was invalid. He also, without application of mind, held as though Ex.A1 was issued during the pendency of the suit, even though after Ex.A1, only during March 2001, the O.S.No.208 of 2001 for eviction was filed by the landlord/Trust.
9. I am at a loss to understand as to how the first appellate Judge can venture to give such a finding. No doubt, earlier the suit O.S.No.40 of 2000 was filed by the tenant on the sole ground that he should not be evicted from the premises, illegally or unlawfully by the Trust and in such a case, during the pendency of such suit, the landlord thought fit to resort to legal action in legally evicting the tenant for which, Ex.A1 emerged and in such a case, the first appellate court was wrong in discording Ex.A1 as though it emerged during the pendency of the suit and that it was invalid. The landlord is having the right to take legal action to get its tenant evicted.
10. In this case, the earlier suit filed by the tenant is not an embargo for the landlord to take action for eviction. Here, the landlord issued the statutory notice under Section 106 of the Transfer of Property Act and it was also received by the tenant.
11. I would like to extract here under the relevant Section 106 of the Transfer of Property Act:
“106. Duration of certain leases in absence of written contract or local usage:- 1. In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months’ notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days’ notice.
2. Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub section(1) shall commence from the date of receipt of notice.
3. A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.
4. Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants, at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property).”
It is therefore clear that if all the tenancy was for agricultural or for manufacturing purpose, six months’ notice is contemplated otherwise, 15 days’ notice as correctly issued by the landlord as per Ex.A1 would be sufficient.
12. Here, to the risk of repetition and pleonasm, but without being tautologous, I would like to point out that Ex.A1 was received as early as on 09.02.2001 itself by the tenant and he was given time to vacate the suit property by the end of February 2001. As such, he had more than 15 days’ time as contemplated under Section 106 of the Transfer of Property Act.
13. Wherefore, I am of the view that the Ex.A1 statutory notice issued by the landlord to the tenant can never be dubbed or labelled as something illegal or insufficient as per Section106 of the Transfer of Property Act.
14. As such, the substantial question of law No.1 is decided to the effect that the first appellate court erred in reversing the judgment and decrees of the trial court without properly and legally recording a finding regarding the validity of the notice issued under Section 106 of the Transfer of Property Act.
15. I recollect and call up the maxim:
judicis est judicare secundum allegata et probata It is the proper role of a judge to decide according to the allegations and proofs.
Any amount of evidence without the back up of the pleadings should be eschewed.
16. The first appellate court meandered and dilated very much on various points, which are not having the back up of the pleadings in the written statement and there is no reference to any facts, which the first appellate court dealt with in para No.21 of its judgment relating to sale of the suit property earlier by the ancestor of the defendant.
17. As such, it is crystal clear that even by phantasmagorical thoughts, the first appellate court was not justified in reversing the reasoned common judgment and decrees of the trial court, warranting interference in the second appeal and to say the least, the common judgment and decrees of the first appellate court are fraught with perversities and illegalities and they are liable to be set aside and accordingly, they are set aside and the common judgment and decrees of the trial court are restored.
18. Accordingly, the additional substantial question of law is also decided in favour of the Trust/Landlord.
19. In the result, both these second appeals are allowed. However, there shall be no order as to costs.
vj2 09.04.2011 Index: Yes Internet: yes To 1. The Additional Subordinate Judge, Salem 2. The II Additional District Munsif, Salem G.RAJASURIA,J. vj2 S.A.Nos.871 and 1009 of 2006 09.04.2011