Rajendra Mohan Ghosh v. Smt. Kaushalla Devi .

Sinha, J.:— This is a defendant's appeal against the judgment and decree dated the 29th May, 1971, passed by the learned Second Additional Subordinate Judge, Bhagalpur, in Title Appeal No. 9 of 1968/47 of 1968 affirming the judgment and decree passed by the learned Second Munsif, Bhagalpur. The suit was for eviction of the defendant appellant from the northern portion of a house situated in holding No. 60 (old), 58 (new). Ward No. 3, Circle No. 5, Mahalla Mosakchak within Bhagalpur Municipality on two grounds, namely, (11 personal necessity of the plaintiff and (2) breach of the terms of tenancy by defaulting payment of rent and of making alterations to the let out portion.

2. This case has had rather a chequered career because it appears that even on an earlier occasion the matter had to come before this court in Second Appeal No. 61 of 1963 which was disposed of on the 1st May, 1964, the suit for eviction having been dismissed on a certain technical legal ground. Be that as it may, the relevant facts for the instant appeal are that the plaintiff purchased the said holding under a registered deed of sale on the 6th of July, 1956. Even before the plaintiff had purchased this holding, the defendant-appellant used to reside in a portion of the building as a tenant. After the purchase by the plaintiff, the tenancy of the defendant continued. As it appears from the facts stated in the plaint that same sort of tenancy was created between the plaintiff and the defendant. Initially when the defendant was a tenant under the erstwhile land-lord, he was paying a monthly rental of Rs. 45/-. When the new tenancy started, the rent was reduced to Rs. 41/3/- per month.

3. Now, the case put forth by the plaintiff, so far as her personal necessity was concerned, was that even after making certain further additions to the existing construction in the house, it was not sufficient to accommodate all the members of the family. According to the plaintiff, the only bed-room in her possession was occupied by her and her younger son and her two daughters. In the newly constructed portion, one of the rooms on the ground floor was allotted to the private tutor and the other to the servants. One room of the newly constructed portion on the first floor was occupied by the plaintiff's father-in-law. The remaining rooms were, however, insufficient to accommodate five other sons of the plaintiff who had since grown up and required separate bedrooms for themselves. In fact, it was stated by the plaintiff that although two of her sons had become of marriageable age, but their marriages where postponed just due to the dearth of rooms.

4. On the question of default, it was stated that the defendant had paid rent up to March, 1958, but thereafter in spite of repeated demands had not paid any rent. This was the case which was presented in the suit out of which this appeal arises. The suit, it may be stated, was instituted on the 5th March, 1965. Prior to the filing of the suit, however, a notice under Section 106 of the Transfer of Property Act dated the 9th Dec. 1964 (Ext. 1) had been served on the defendant, by which the defendant had been asked to vacate the tenanted portion of the house and to give vacant possession by the 1st Jan. 1965. The defence put forth by the defendant-appellant was that he had not defaulted in payment of rent and that the plaintiff did not require the tenanted portion of the house for reasonable and bona fide use. One further ground taken in the suit was that the notice under Section 106 of the Transfer of Property Act was not a valid notice.

5. The courts below have decided all the three questions in favour of the plaintiff and against the defendant. Hence, this appeal.

6. This appeal was first heard by a learned single Judge of this Court who, by his order dated the 4th July, 1975, has referred it to a Division Bench.

7. Mr. Ghose, appearing for the defendant-appellant, submitted that the judgment and decree passed by the courts below was illegal and invalid, firstly, because the notice under Section 106 of the Transfer of Property Act was not a valid notice in the eye of law; secondly, because the findings of the courts below about the existence of personal necessity of the plaintiff were vitiated because of non-consideration of the Commissioner's report and the map (Exts. N and G respectively) and also because the courts below had failed to apply the true criteria for determining the reasonable and bona fide requirement of the plaintiff; and thirdly because the courts below had committed an error of record in holding that the defendant was a defaulter.

8. Mr. Prem Lall, appearing for the plaintiff, briefly stated that all the three points urged on behalf of the defendant-appellant had no merit, because there was neither invalidity nor illegality attached to the notice under Section 106 of the Transfer of Property Act; nor was there any non-consideration of the materials on the record for arriving at the finding with regard to existence of reasonable and bona fide personal necessity of the plaintiff; nor was there any error of record committed in holding the defendant to be in default in payment of rent. Mr. Prem Lall, therefore, submitted that the appeal should be dismissed.

9. I will take up each of the questions raised on behalf of the appellant seriatim. I will first take up the question about the validity or otherwise of the notice under Section 106 of the Transfer of Property Act. This notice, which is dated the 9th Dec. 1964, after stating the various facts as to why the plaintiff required the defendant to vacate the tenanted portion, states that.

“Hence notice is hereby given to you under Section 106 of the Transfer of Property Act terminating your tenancy with the end of the month of Dec. 1964. You are to vacate the same and give vacant possession to my client by 1st Jan. 1965, failing which proper steps will be taken against you for vacating the premises within your tenancy and you shall also be liable for costs and damages.”

10. The argument on behalf of the defendant is that in terms of Section 106 of the Transfer of Property Act, a lease of immovable property for a purpose other than agricultural or manufacturing purpose was a lease from month to month terminable on the part of either lessor or lessee by fifteen days' notice expiring with the end of the month of the tenancy. In other words, therefore, the notice must terminate the tenancy with the end of the month of the tenancy. It cannot be earlier or later. In the instant case, however, it was submitted that the tenancy starts when the plaintiff purchased the holding on the 6th July, 1956. Therefore, each tenancy month would get completed on the 5th day of the next month. Now, since the notice under Section 106 of the Transfer of Property Act purported to terminate the tenancy by the end of the month of December, that is to say, by the end of a calendar month, the notice was not valid in law. According to Mr. Ghosh, the month to month tenancy in the case of the defendant would either start from the date on which the plaintiff purchased the holding and thereby a new tenancy was created on and from that date between the plaintiff and the defendant or it could be from the date on which the defendant was first inducted as a tenant in the said holding, that is, from 3rd Sept. 1955. In either case, according to Mr. Ghose, the last day of the tenancy month could not be the last day of a calendar month. It would be either the and of the next following month, if the tenancy was said to commence from the 3rd of Sept. 1955, or, the 5th of the following month if the tenancy was taken to start from the 6th July, 1956 and as such, according to Mr. Ghosh, the notice under Section 106 of the Transfer of Property Act did not terminate the tenancy at the point of time as provided under law.

11. There can be ho dispute on the proposition that under Section 106 of the Transfer of Property Act, the notice to quit served on the tenant must expire with the end of the month of the tenancy. If the tenancy is terminated with effect from an earlier date, it would be clearly invalid. No authority is needed on this point, because the language of the section is itself clear and unambiguous. It however, any authority is needed, the discussion at Para No. 4 in the case of Bhagaban Das v. Bhagwandas Kanu ((1977) 2 SCC 646 : AIR 1977 SC 1120) may be seen.

12. Now the question in the instant case is - Does the notice under Section 106 of the Transfer of Property Act terminate the tenancy at the end of the last day of the month of the tenancy? It must be frankly stated that if the tenancy started from the 6th of July, 1956 or 3rd of Sept. 1955, the notice to quit did not terminate the tenancy as required under the law. The question as to what is the period of tenancy of a month to month tenant is purely a question of fact. Now, in the instant case, the plaintiff as also the defendant are both agreed that the tenancy was a month to month tenancy. The fact as to when the tenancy started is, however, neither specifically stated in the plaint nor in the written statement. The only fact stated in the plaint is that in April, 1958, the plaintiffs' husband had told the defendant that he would require the entire holding for the residence of the plaintiff with the children, and, as such, the defendant should vacate the portion of the holding let out to him and under his occupation by the 31st May, 1958, thereby giving an inkling in the plaint that the month to month tenancy corresponded to the calendar month. That the defendant was a month to month tenant has been admitted by the defendant in Paragraph No. 35 of his written statement. What was the understanding between the plaintiff and the defendant about the month to month tenancy is however ascertainable from the evidence on the record itself.

13. It appears that the plaintiff and the defendant having come to the point of litigation, latter started sending the rent through postal money order. The postal money order receipts and coupons have been produced in evidence in the rent as Exts. M series and B series respectively. They clearly indicate that the rent which was remitted through the postal money orders was remitted for each calendar month. Thus, for example Ext. B/7, one of the money order coupons, shows that the rent that was remitted was for the months of August to Nov. 1964. There is yet another document on the record which also shows that the calendar month was the month of tenancy.

14. It appears from Ext. K/7 which is an order passed by the House Controller, Bhagalpur, in case No. 58 of 1958 fixing the fair rent of the disputed portion of the house in question at the instance of the defendant at Rs. 15/- per month and that the said rent at the rate of Rs. 15/- per month “will come into effect from 1-11-63”, that is to say, the rent was payable according to the calendar month starting from the 1st Nov. 1963. In view of this evidence coupled with the fact that there has been no dispute on the question as to what was to be understood by the term “month to month tenancy”, it cannot but be held that the courts below were justified in holding that there was ‘no difficulty in accepting the notice under Section 106 of the Transfer of Property Act as a valid notice to quit. It is of some significance to note that although the question has been so vehemently urged on behalf of the appellant before this court it was not at all raised before the trial court or even before the appellate court. As a matter of fact, looking to the points urged for decision before the appellate court, which have been formulated in para No. 11 of the appellate court's judgment, there is no point concerning the illegality of the notice under Section 106 of the Transfer of Property Act. The appellate court after having discussed all those points has further clearly stated in the order that “no other points were pressed before me”, which, obviously, means that no question relating to the invalidity of the notice under Section 106 of the Transfer of Property Act was raised either before the appellate court or before the trial court.

15. As observed by me earlier, the question as to what was the period of month for which the tenancy existed being a question of fact and the question as to whether the notice under Section 106 of the Transfer of Property Act was valid or invalid being dependant upon such fact, it would be rather difficult for this Court to determine that issue in isolation of the facts. It is settled law that in a second appeal this Court cannot go into the facts for itself. The basic facts relating to the point regarding the validity or otherwise of the notice under Section 106 of the Transfer of Property Act being absent, the question cannot be entertained. That question is, therefore, left at that.

16. The next question relates to the existence of the personal necessity of the plaintiff, requiring the premises for her own use reasonably and bona fide. In this connection, as stated earlier, learned Counsel for the appellant has submitted that the findings of the courts below were vitiated because of the non-consideration of the Commissioner's report and the map (Exts. N and G respectively). A further argument is that the court while assessing the reasonable and bona fide necessity of the plaintiff has failed to take into consideration facts which arose after the filing of the suit. One of those facts, as has been stated by the learned Counsel for the appellant, is that no more space is required for the plaintiff's father-in-law and mother-in-law, who are now dead and further some of the children of the plaintiff, having taken jobs elsewhere, were not required to stay in the house in question.

17. In terms of Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter referred to as ‘the Act’), where the building is reasonably and in good faith required by the landlord for his own occupation or for occupation of any person for whose benefit the building is held by the landlord, the order for evicting the tenant may be passed. The proviso added to the said section however, is that:

“Provided that where the court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the building and allowing the tenant to continue occupation of the rest and the tenant agrees to such occupation, the Court shall pass a decree accordingly.”

18. The question, therefore, then arises as to what is to be understood by the expression “reasonable and bona fide requirement of the landlord”. Obviously, it cannot be constant. It is bound to vary from case to case, depending upon so many factors, such as, the standard of living, the number of persons required to be accommodated, the habits of the inmates of the house, etc. Now, in the instant case, the question with regard to the reasonable and bona fide necessity of the plaintiff has not been considered in any other light except in the bare personal necessity of the inmates, required to be accommodated in the house. It was in that connection that at the instance of the defendant the appellate court had directed the commissioner to submit a report about the number of rooms in the holding in question and their dimensions. The commissioner made his report and also submitted a map showing the constructed area.

19. Now, the grievance of the learned Counsel for the appellant is that the court of appeal below has given its finding on the question of personal necessity without taking into consideration the said report.

20. I do not think the criticism is a valid one. It is true that in so many words the Commissioner's report has not been recapitulated in the impugned judgment, but it is clear on reading the judgment itself that the court was conscious of the built up floor area and the persons required to be accommodated in such built up area. Point No. 2 of the appellate court's judgment relates to this question. The learned Subordinate Judge, while dealing with this question, has observed that the plaintiff's family consists of six sons, three daughters, her mother-in-law, her father-in-law and her husband. It was further been observed that although the husband of the plaintiff mostly stays in Calcutta, for the purpose of educating the children a private tutor has to be maintained and accommodated in the house besides the servant has also to be there. Having observed these facts, the learned Subordinate Judge came to the conclusion that,

“it is quite clear that the family of the plaintiff is quite a big one and her sons have attained marriageable age. I am, therefore, of opinion that the portion of the house in occupation of the plaintiff is not sufficient to accommodate such a big family. Therefore, it cannot be denied that the plaintiff genuinely requires separate rooms for the members of her family including the private tutor, the servant and the cook. All of them cannot be accommodated in the existing portion of the house in occupation of the plaintiff.”

21. The observation, quoted above, clearly indicates that although the commissioner's report has not been mentioned in so many words in the said judgment, yet the court was not oblivious of it as is obvious from the observation that the accommodation available in the house was not sufficient to accommodate the members of the plaintiff's family together with the defendant. This observation, it may be further observed, is clearly in keeping with the proviso of Section 11 of the Act in which the courts have been entrusted with the duty to find out the reasonable requirements of the landlord, and, if such reasonable requirement would be substantially satisfied by evicting the tenant from a part only of the building, he may allow the tenant to remain in occupation of the rest portion of the house. In the instant case, on the facts found by the courts below, particularly by the appellate court, it is amply clear that the reasonable and bona fide requirement of the plaintiff extended to having the whole house to her use.

22. In my opinion, therefore, the ground upon which the finding of personal necessity of the plaintiff is said to have got vitiated is not at all a valid ground.

23. Mr. Ghose, appearing for the appellant, referred me to certain decisions of the Supreme Court to emphasize the point that facts which arose after the lis should also be considered while ordering the eviction of the tenant. Such of those decisions are Pasupuleti Venkateswarlu v. Motor & General Traders ((1975) 1 SCC 770 : AIR 1975 SC 1409) and Damadi Lal v. Parashram ((1976) 4 SCC 855 : AIR 1976 SC 2229). In the former case, their Lordships have laid the ratio that facts arising after the lis should be considered in the ends of justice. In the latter case, their Lordships have laid the ratio that if the Courts below have ignored to consider the relevant evidence on the question touching the point as to the reasonable and bona fide necessity, the higher court can reconsider it and restore that finding which follows upon such consideration of the evidence. For this purpose, learned Counsel for the appellant has stated on affidavit certain facts to emphasise that the plaintiff did not require so much accommodation as had been decreed in her favour. The plaintiff respondent, on the other hand, has controverted all those averments by a counter-affidavit.

24. I must say, sitting in second appeal, I cannot go into this question of fact and more so on the basis of such evidence and counter-evidence. The question as to what was reasonable or bona fide necessity of the plaintiff cannot be decided on these controversial facts. Be that as it may, the fact remains, as has been the decision of the Supreme Court in the aforesaid decisions, that such facts as are relevant for the purpose of understanding the reasonable and bona fide necessity of the landlord, even though arising after the starting of the litigation, may still be considered by the court below for deciding the reasonable and bona fide necessity of the plaintiff. There can be no dispute to this proposition. In the instant case, however, all that appears is that although the father-in-law and the mother-in-law of the plaintiff have died, but the number of the inmates of the family has become larger than what it was during the lifetime of the father-in-law and the mother-in-law of the plaintiff, the children of the plaintiff having got married.

25. In view of the above discussions, it must be held that the contention relating to the non-existence of bona fide and reasonable necessity or the requirement of the plaintiff, must be rejected.

26. The existence of reasonable and bona fide necessity of the landlord by itself is sufficient for sustaining the judgments and decrees passed by the courts below. I may, however, take up the question of default also, since that is one of the points which has been vehemently urged. According to the learned Counsel for the appellant, there was no default and the courts below in holding so have committed an error of record. Now, in this connection, it has been urged that having regard to the rent fixed by the House Controller (vide Ext. K/7) at Rs. 15/- per month, if the amounts of rent paid by the defendant were taken into account it would have been found that the defendant was not at all in arrears.

27. It is rather difficult for me to appreciate this contention. The default is alleged to be after March, 1958. The order of the House Controller, however, takes effect much after that date namely, from the 1st Nov., 1963, so that the past defaults do not get exonerated by the scaling down of the rate of rent.

28. In this connection, another limb of argument on behalf of the appellant is that there was no default, because the appellant had gone on sending the rent for each month by money order although the same had been refused by the plaintiff-landlord.

29. Here again, the difficulty in the way of the defendant is that remittance of rent by money order can be accepted as valid payment only if the remittance is of the full amount of rent in arrears. In the instant case, it appears that the amount of rent which was remitted could not be the amount of the rent due.

30. The evidence on the record shows that the defendant remitted rent of Rs. 41/3/- for the month of April, 1958, and, after the same was refused by the landlord, he remitted the same amount again for the next following month. Obviously, by the time rent for the next following month was paid, the amount of rent due would be Rs. 41/3/- for each month so that he had to remit an amount of Rs. 82/6/- to cover the full amount toward rent and arrears. Instead, as it clearly appears from the amount remitted that each month he went on sending only a sum of Rs. 41/3/-. In other words, he went on sending the same sum of Rs. 41/3/- each time. This, in my opinion, cannot be a valid payment of rent for each month.

31. An argument has been made on behalf of the appellant that subsequently when the rent was deposited in court, the plaintiff-landlord withdrew the same, and, therefore, it amounted to a waiver of the default.

32. I do not think the withdrawal of the amount under Court's order can amount to a waiver of the default. A question of identical nature arose for consideration in the case of Ganesh Lal v. Mohammad Ismail (AIR 1976 Pat 223) in which it was held that the principle of waiver would not apply to a case where the amount is withdrawn under an express order of the Court.

33. Learned Counsel for the appellant has drawn my attention to a Bench decision of this Court in Ranchhod Lodha… v. Madhabji Kanji…Opposite Party. (AIR 1974 Pat 211), about which the learned counsel states that it has not been noticed in the aforesaid decision reported in AIR 1976 Pat 229 (supra).

34. The ratio laid down in Ranchhod Lodha's case (AIR 1974 Pat 211) is not on the point which is being considered here. Here, we are considered as to whether the principle of waiver would apply to a case where the landlord under the express orders of the court has withdrawn the rent deposited by the tenant. We are not considering here a question as to whether the landlord's plea of striking out of the defence of the tenant under S. 11-A survives after the landlord has withdrawn the rent deposited by the tenant. The ratio laid down in the case of Ranchhod Lodha (AIR 1974 Pat 211) is on the latter aspect of the matter, namely, where the landlord had withdrawn the rent deposited by the tenant and after having done so required the court to strike out the defence of the tenant in terms of Section 11-A of the Act. In my opinion, this ratio has no application on the question at issue here.

35. Having regard to the discussions made above, I do not find any merit in this appeal which is, accordingly, dismissed; in the circumstances, however, without costs.

36. I would, however, observe that the decree for eviction will take effect only, after the 31st May, 1978.

37. Jha, J.:— I agree.

38. Appeal dismissed.