JUDGMENT
H.N. Sarma, J.
1. This revision petition arises an interesting question for consideration as to whether on the tone of finding of the courts below to the effect that the suit premises is required to the plaintiff-landlord for her bona fide use and occupation, the relief for recovery of khas possession by ejecting the defendant-tenant could be refused by operation of Article 67 of the Limitation Act.
The plaintiff-petitioners, as landlord, filed the Title Suit No. 69 of 1989 on 23.9.1989 in the court of learned Munsiff, Tinsukia impleading the present respondent as the sole defendant praying for following relief’s:
(i) A judgment and decree against the defendant for the ejectment along with his dependents and belonging from the suit premises and for delivery of khas-possession thereof unto the plaintiff.
(ii) A decree for recovery of Rs. 1,800
(iii) Future compensation @ Rs. 50 per month till the date of eviction,
(iv) Cost of the suit
(v) Any other relief, under law equity and justice.
2. The pleaded case of the plaintiff, inter alia, is that the suit house was leased out to the defendant on monthly rent of Rs. 50 for a period of 2(two) years, since January 1974. After expiry of the said period, in spite of demand made by the plaintiff the suit premises was not vacated and the defendant also failed to pay the necessary monthly rent and accordingly, characterized himself as a defaulter. Further case of the plaintiff is that the suit premise is necessary for the bona fide use and occupation of the plaintiff in Order to provide an accommodation for the business of his son. The plaintiff having been refused to vacate the suit premises and to pay arrears of rent, the plaintiff filed the Suit with the aforesaid relief. Summons of the Suit having been served, defendant appeared and contested the Suit by filing his written statement denying the allegations made in the plaint. It is pleaded in the written statement that the defendant paid the monthly rent till June 1985 and on refusal of the plaintiff to accept the rent from the month of July 1985, the defendant was depositing the same duly in the Court. The requirement of suit premises for the bona fide use and occupation of the plaintiff was not denied by the defendant. Upon pleadings, following issues are framed by the learned Trial court:
1. Whether suit is maintainable ?
2. Whether there is cause of action for the suit ?
3. Whether defendant spent the sum of Rs. 2,000 for repairing the same. If so,
4. Whether the defendant is defaulter ?
5. Whether the suit premises is bona fide required by plaintiff ?
6. Whether the plaintiff is entitled to a decree as prayed for ?
7. To what reliefs the parties are entitled to ?
3. During the course of trial both the parties adduced one witness each and exhibited some documents. The learned trial court, upon consideration of the materials and evidences available on record determined the issue No. 4 which relates to defaulter holding, inter alia, that the defendant is not a defaulter and he duly paid the rent to ” the plaintiff up to June 1984 and thereafter deposited in the Court on refusal of the plaintiff to receive the same.
4. Determining the issue relating to bona fide requirement of suit premises, the learned trial court has held that the requirement of suit house for his use and occupation by the plaintiff landlord is genuine, the suit premises is required by the plaintiff bona fide for her own use and occupation. Although the learned trial court held that the suit premises is necessary for the plaintiff landlord for the use and occupation, the relief of recovery of khas possession of the suit premises was not granted to the plaintiff inasmuch as the Suit was time barred as it was not filed within 12 years from the date of determination of tenancy, within the ambit of Article 67 of the Limitation Act vide judgment and Order dated 14.8.1996 passed in Title Suit No. 69 of 1989. Challenging the judgment and decree passed by the learned trial court, the plaintiff/petitioner filed Title Appeal No. 9 of 1996 in the Court of Civil Judge, Senior Division, Tinsukia. The learned Appellate Court also vide judgment and Order dated 14.9.2001 confirmed the findings relating to defaulter as well as bona fide requirement of the suit premises by the plaintiff/petitioner.
5. However, the learned Appellate Court also on the same considerations that is, it was not filed within the period of 12 years from the date of determining the tenancy, refused to grant relief to the plaintiff to recover khas possession of the suit house on bona fide requirement vide judgment and Order dated 14.9.2001 in Title Appeal No. 9/96. Challenging the aforesaid judgment the plaintiff landlord has filed this petition.
6. I have heard Mr. A.K. Goswami, learned senior counsel appearing for the petitioner and Mr. T.C. Khatri, learned senior counsel appearing for the respondent.
7. Mr. Goswami, learned senior counsel, in support of the petition submitted that both the learned courts below committed manifest error f of law in not granting the relief for recovery of the khas possession of the suit premises by applying Article 67 of the Limitation Act inasmuch as the present suit is not regulated and guided under the provisions of Transfer of Properties Act but under the State Rent Control Act. Referring to the provisions under the Assam Urban Areas Rent Control Act, 1972, it is further submitted that once the learned courts below finds that the plaintiff’s bona fide requires the suit premises for their own use and occupation, there is no other alternative to pass the decree for recovery of khas possession in terms of Section 5 of the Assam Urban Area Rent Control Act and the same cannot be rebutted attracting Article, 67 of the Limitation Act.
8. Mr. Khatri, learned senior counsel, on the other hand submitted that the suit of the plaintiff is barred under Article 67 of the Limitation Act inasmuch as the plaintiff has not initiated action by showing the law for ejectment within a period of 12 years from the; date of determination of tenancy in terms of the said Article and the said provision is very much applicable in the facts and circumstances of the present case.
9. In support of his argument Mr. Goswami has referred to the decisions a rendered by the Apex Court reported in AIR 1979 SC 245 V. Dhanapal Chettiar v. Yesodai Ammal. Contrary to this, Mr. Khatri relied on the decisions rendered by the Apex Court in Shakuntala v. Hem Chand reported in AIR 1987 SC 118.
10. I have considered the rival submissions made by the learned Counsels b for the parties and perused the materials available on record. The undisputed findings of the learned courts below in this case is that the tenant respondent is not defaulter and he paid the rent till July 1985 and thereafter, the rent was deposited in the Court on refusal to accept the same by the landlord. Accordingly, the concurrent findings of the c learned courts below are that the tenant respondent is not a defaulter. It is also the concurrent findings of the learned courts below that the suit house is necessary for the plaintiff/petitioner for their bona fide use and occupation but relief for recovery of khas possession was not granted in view of provisions of Article 67 of the Limitation Act.
11. It is an admitted position that there is no written agreement of tenancy between the parties and intact, there is no specific determination of the tenancy by the landlord. The materials of the case record discloses that in pursuance to notice dated 30.1.1987 asking the predecessor in the interest of the plaintiff-landlord of making necessary repairing of the suit house the plaintiff’s reply, vide exhibit-2 was issued on behalf of the plaintiff-landlord. By the said reply dated 2.3.1987, the plaintiff demanded vacant possession of the suit premises within 31.3.1987 failing which, it was stated therein that necessary legal action would be taken for evicting the defendant-respondent. There is no specific statement made in the deposition of the parties that on which date the tenancy has been determined. Accordingly, the date of demand of vacant possession of the tenancy is to be accepted to be the date of determination of relationship between the landlord and tenant demanded by the landlord on 2.3.1987 otherwise without such determination of the final relationship of landlord and tenant, vacant possession thereof cannot be demanded.
12. In the case of V. Dhanapal Chettiar (supra), the Apex Court at para 6 has, held, inter alia, that under Section 111 deals with the question of determination of a lease and in various Clauses (a) to (h) methods of determination of a lease of immovable property are provided. Clause (g) deals with the forfeiture of lease under certain circumstances and at the end are added the words “and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease”. The notice spoken of in Clause (g) is a different kind of notice and event without the State Rent Acts different views have been expressed as to whether such a notice in all cases is necessary or not. We only observe here that when the State Rent Acts provide under what circumstances and on what grounds a tenant can be evicted, it does provide that a tenant forfeits his right to continue in occupation of the property and makes himself liable to be evicted on fulfilment of those conditions. Only in those State Acts where a specific provision has been made for the giving of any notice requiring the tenant either to pay the arrears of rent within the specified period or to do any other thing, such as the Bombay Rent Act or the West Bengal Rent Act, no notice in accordance with Clause (g) is necessary. A lease of immovable property determines under Clause (h):
On the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.
It is this Clause which brings into operation the requirement of Section 106 of the Transfer of Properties Act.
13. In the case of Shakuntala (supra) the Apex Court in interpreting the provisions of Bombay Rents, Hotel, and Lodging House Rates Control Act inter alia, held that “therefore, notice under Section 106, T.P. Act terminating the tenancy is no longer necessary. At page 353 of the said report (1980) 1 SCR: (at pp. 1754-55 of 1979 AIR) the Court was of the view that making out a case under the Rent Act for eviction of the tenant by itself was sufficient and it was not obligatory to base the proceeding on the basis of the determination of the lease by issue of a notice in accordance with Section 106, T.P. Act.”
14. On conjoint reading the ratio laid down by the Apex Court in the above cited cases it is seen that in Order to determine the relationship between the landlord and the tenant under the State Rent Act no notice as provided in Section 106 of the Transfer of Properties Act is necessary. As per Shakuntala (supra) on the facts of the said case, the Apex Court held that 12 years limitation under Article 67 would run from the date of determination of the tenancy.
15. In the instant case, the suit was filed on 23.9.1989 and the tenancy was determined by issuing reply notice dated 2.3.1987 by which the vacant possession of the suit premises was demanded. In that view of such undisputed fact, borne out of record, the suit in question was filed within the period of 12 years from the date of determination of the tenancy even assuming the said Article 67 is applicable in the instant case. On such consideration, I do not find that the findings arrived at by the learned courts below refusing to grant the relief for recovery of vacant possession after holding that the suit house is necessary for the plaintiff for bona fide use and occupation, as the suit was barred under Article 67 of the Limitation Act is justifiable one.
Accordingly, the submissions of Mr. Khatri in support of impugned judgment and decree in view of the undisputed factual situation of the case is not acceptable.
16. In view of the aforesaid discussions I hold that the learned courts below acted illegally and with material irregularity in refusing to grant otherwise justifiable relief for recovery of khas possession of the suit premises by evicting the defendant tenant under Section 5 of the Assam Urban Area Rent Control Act on the face of the proved facts in form of bona fide requirement of the suit premises by the landlord-petitioner and hence, impugned judgment and decree are set aside. Consequently this revision petition stands allowed and the suit of the plaintiff for eviction from the suit premises stands decreed.
No Order as to costs.
At this stage, Mr. Khatri, learned Counsel for the tenant-respondent has prayed for 6 (six) months time to vacate the suit premises. Mr. Goswami, learned Counsel for the landlord-petitioner has not objected the said prayer subject to certain conditions that might, be imposed for effective compliance of the judgment and Order of this Court. Accordingly, upon hearing the learned Counsel for the parties, the defendant-respondent (tenant) is granted 6 (six) month’s time from today for vacating the suit premises subject to the following terms and conditions:
(1) That the defendant-respondent (tenant) shall, within a period of 2 (two) weeks from today shall file an undertaking before the learned trial court agreeing to deliver vacant possession of the suit premises to the landlord/petitioners within 6 (six) months from today.
(2) That the defendant-respondent (tenant) shall continue to pay the current rent to the plaintiff-petitioner (landlord) for this period of 6(six) months and if any arrear of rent is payable, the same may also be paid within this period.
(3) If any of these terms and conditions is violated, the defendant would be evicted by putting the decree into execution for recovery of the khas possession of the suit premises.
The aforesaid undertaking shall be accompanied by an affidavit.