The plaintiff filed the suit OS No. 44 of 1988 for the relief of specific performance of the oral agreement dated 1-5-1988. It is true that oral agreements are not prohibited in law. However, whenver
19. In this case, the plaintiff was the tenant of the 1st defendant as on the date of the alleged agreement of sale. The plaintiff did not plead or establish that the mutual confidence between them and the 1st defendant was such that they paid to or received from the 1st defendant amounts without insisting upon receipts prior to 1-5-1988. If there was such a relationship between the parties, spread over for a substantial period, it would not have been difficult to accept the plea of the plaintiff that by reposing confidence in the 1st defendant, he paid substantial amounts. On the other hand, the evidence on record reveals that between 5-5-1987 and 22-4-1988, the plaintiff is said to have paid about eleventh or twelve thousand rupees in the form of rent was well as loans to the 1st defendant. For this amount, about 18 receipts were taken by the plaintiff. The receipts cover the amounts varying from Rs.169/-(Ex.A4 dated 12-3-1988,), Rs.300/- towards rent (Exs.A1 dated 5-5-1987, A2 dated 21-6-1987, A3 dated 31-8-1987) to Rs.1,600/-on 25-10-1987 (Ex.A4 is a bunch of 15 receipts for various amounts). When such was the conduct and state of affairs between the parties, it is next to impossible to imagine that the plaintiff paid an amount of Rs.50,000/- on 1-5-1988 and another Rs.50,000/- on 6-5-1988 without there being either an agreement of sale or formal receipts.
IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD
AS No. 2862 of 1996 and Cross-objections and 40 of 1999 and CMP No. 21122 of 2001 and Cross-objections
Decided On: 20.02.2002
Appellants: Yelamati Veera Venkata Jaganadha Gupta and Anr.
Respondent: Vejju Venkateswara Rao and Ors.
Respondent: Vejju Venkateswara Rao and Ors.
L.N. Reddy, J.
L.N. Reddy, J.
(i) Property - intimation of termination - Section 106 of Transfer of Property Act, 1882 - allegation by defendant for plaintiffs failure to comply with Section 106 of Act - question of non-observance of provision never agitated by defendant prior to institution of suit or in his reply to plaint - held, defendant be presumed to have waived objection to non-compliance of Section 106.
(ii) Tenancy by holding over - Sections 106 and 111 (h) of Transfer of Property Act, 1882 - endorsement made by tenant on rent receipt agreeing to surrender property within year - can tenant insist on notice under Section 106 of Act - held, by undertaking to vacate property within year tenancy became tenancy by holding over and landlord bound to give notice as contemplated in Section 111 (h).
(iii) Eviction - Section 10 of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 - remedy available to alienee from landlord to take possession of property subject to lease - held, in such circumstances alienee had to file petition for eviction as contemplated under Section 10.
1. These two appeals arise out of a common judgment of the Court of Subordinate Judge, Tadepalligudem, rendered in OS Nos.44 and 158 of 1988. Hence, they are disposed of together. The parties to both the suits as well as the appeals are common. AS No. 40 of 1999 is filed by the plaintiff in OS No. 44 of 1988. For the sake of convenience, the parties are referred to as arrayed in OS No. 44 of 1988.
2. The plaintiff filed the suit seeking relief of specific performance of an oral agreement said to have taken place on 1-5-1988 between the plaintiff and the 1st defendant. It was the case of the plaintiff that it is the tenant in respect of the suit schedule property (ground floor) from 1973 onwards, the 1st defendant was taking hand loans of various amounts from time to time from the plaintiff, on 1-5-1988 the 1st defendant approached them offering to sell the property for a consideration of Rs.2-00 lakhs, on that day itself they paid an advance of Rs. 50,000/-, the balance of Rs. 1.50 lakhs was payable on or before 11-5-1988, on the request of the 1st defendant they paid another amount of Rs. 50,000/- on 6-5-1988 and were ready and willing to pay the balance on 11-5-1988. In the meanwhile, they came to know about the attempts of the 1st defendant to sell the suit scheduled property to defendants 2 and 3 and accordingly got a telegram issued on 10-5-1988 and thereafter they got issued notices through the advocate. However, the 1st defendant executed sale deeds in favour of defendants 2 and 3 conveying the suit schedule property to them. Therefore, the plaintiff approached the Court to grant a decree for specific performance.
3. The 1st defendant filed a written statement accepting the tenancy of the plaintiff in respect of the suit schedule property, but denied the alleged oral agreement of sale. It was his case that plaintiff was very irregular in payment of rents, he never approached them with an offer to sell the property and the so called oral agreement of sale, payment of Rs.50,000/- each of 1-5-1988 and 6-5-1988 are utter falsehood and a deliberate attempt to grab the property. He has also narrated the factum and manner of selling the property in favour of defendants 2 and 3. Almost to the same effect were the contentions of defendants 2 and 3.
4. On the basis of the pleadings in the suit, the trial Court framed the following issues:
"1. Whether the oral agreement of sale deed dated 1-5-1988 is true, valid and binding on defendants?
2. Whether the alleged payments said to have been made by the plaintiff to 1st defendant are true?
3. Whether the plaintiff is entitled to specific performance?
4. Whether the defendants 2 to 5 are bona fide purchasers for valuable consideration?
5. To what relief?"
5. So far as OS No. 158 of 1988 is concerned, the same is filed by defendants 2 and 3 against the plaintiff was as the 1st defendant in OS No. 44 of 1988. In this suit, they sought for a decree for possession of the suit schedule property in view of the purchase of the same from the 1st defendant and eviction of the plaintiff from the same. They have also prayed for a decree for Rs.7,280/-representing the arrears of rent from the date of their purchase to the date of filing of the suit and also for determination of future profits under Order XX, Rule 12 of CPC.
6. The broad averments in the plaint were that they entered into an agreement of sale dated 13-3-1988 with the 1st defendant to purchase the suit schedule property for a consideration of Rs. 1,95 lakhs. They paid an amount of Rs.50,000/- towards advance on the same day, the balance of consideration was payable on or before 22-5-1988 and in pursuance of the said agreement of sale, the 1st defendant executed sale deed dated 11-5-1988 in favour of the 2nd defendant transferring the 'B' Schedule property and executed another sale deed dated 12-5-1988 transferring the 'C' Schedule in favour of 3rd defendant (B and C schedule properties constitute the 'A' schedule property). It was also their case that the 1st defendant has also sold the 'B' schedule property jointly in favour of the wives of defendants 2 and 3, after receiving the entire sale consideration. It was their case that by September, 1987, the rents of the premises was Rs. 1,300/-, having paid the rent of Rs. 1,300/- to the 1st defendant, the plaintiff stopped paying the rents thereafter. The defendants 2 and 3 got issued notices under Section 106 of the Transfer of Property Act calling upon the plaintiff to vacate the premises and since the plaintiff failed to comply with the request, they filed this suit for the reliefs referred to above.
7. The defence of the plaintiff was that the sale in favour of defendants 2 and 3 was unsustainable in law, the plaintiff disputed the existence of relationship of land lord and tenant or lessor and lessee between itself on one hand and defendants 2 and 3 on the other. They also disputed the quantum of rent and put the plea that the suit is not maintainable and if at all defendants 2 and 3 wanted eviction of the plaintiff, they were to have initiated proceedings under the A.P Buildings (Lease, Rent and Eviction) Control Act, 1960 (hereinafter referred to as the Rent Control Act).
8. On the basis of these pleadings, the trial Court framed the following issues in this suit:
"1. Whether the agreement of sale dated 13-3-1988 and the sale deeds dated 11-5-1988 and 12-5-1988 are true, valid and binding on the defendants 1 and 2?
2. Whether the oral agreement of sale said to have been entered into between 3rd defendant and defendants 1 and 2 is true, valid and binding?
3. Whether the suit is bad for non-joinder for proper and necessary parties to the suit?
4. Whether the plaintiff is entitled to possession of the plaint V schedule property?
5. To what past profits to damages for use and occupation if any is the plaintiff entitled?
6. Whether the plaintiff are entitled to any mesne profits if so, what rate?
7. To what relief?"
9. Having regard to the inter-relation of the causes of action as well as the similarity of the parties, the Court below tried the suits together, recorded the evidence in common, PWs. 1 to 4 were examined on behalf of the plaintiff and Exs.A1 to A25 were marked, DWs. 1 to 7 were examined on behalf of the defendants and Exs.B1 to B26 were marked.
10. On an appreciation of the oral and documentary evidence, the trial Court, through its common judgment dated 4-10-19%, dismissed OS No. 44 of 1988 and decreed OS No. 158 of 1988. The mesne profits were awarded at the rate of Rs.300/- per month and not at the rate of Rs.1,300/- per month. AS No. 2862/96 is filed by the plaintiff against the judgment and decree in OS No. 158 of 1988. Feeling aggrieved by the quantum of mesne profits the defendants 2 and 3 filed Cross Objections. The plaintiff also preferred AS No. 40 of 1999 against the judgment and decree in OS No. 44/88. The plaintiff also filed CMP.No.23122 of 2001 under Order 41 Rule 27 CPC with a prayer to receive certain documents as additional evidence.
11. On behalf of the plaintiff, the learned Counsel Sri G. Krishna Murthy and SC Rangappa, made submissions. It is their case mat that the plaintiff had proved and established the oral agreement, the payment of Rs.50,000/- each on 1-5-1988 and 6-5-1988 and, as such, the suit ought to have been decreed. It is their case that the 1st defendant has committed breach of contract and had illegally transferred the property in favour of defendants 2 and 3. According to them, on the basis of the evidence on record, the trial Court ought to have decreed the suit for specific performance. So far as the suit filed by defendants 2 and 3 is concerned, it is their case there is nothing on record to show that the rent for the premises for the month of September, 1987 was Rs.1,300/- per month. It was not in dispute that the rent up to the month of August, 1987 was Rs.300/- per month and that being so, the civil Court did not have the jurisdiction to entertain the suit for eviction of a tenant and the only course open to defendants 2 and 3 was to institute proceedings under the Rent Control Act. They further pleaded that the Cross-Objections are not at all maintainable. They submit that the plaintiff could not file certain documents, which will have bearing on the subject-matter of the suit during the trial and wanted the documents filed along with CMP No. 21122 of 2001 to be taken on record as additional evidence.
12. Sri N.V. Swyanarayana Murthy, the learned senior Counsel appearing for the defendants submits that the plaintiff has miserably failed to establish the existence of any oral agreement dated 1-5-1988, much less, the factum of payment of Rs.50,000/-each on 1-5-1988 and 6-5-1999. So far as the quantum of rent is concerned, the learned Counsel submits that there is clear documentary evidence supported by admissions on the part of the plaintiff itself to the effect that the rent for month of September, 1997 was Rs.1,300/- and the rent being more than Rs.1,000/- per month, the suit as instituted was permissible in law. It is his further contention that the trial Court had filed to take into account the actual rents payable for the period prior to the filing of the suit and the decree ought to have been for the amount prayed for and, as such, the Cross Objections are liable to be allowed. He opposes the application for receiving additional evidence.
13. Before undertaking discussion on the appeals, I propose to deal with the application filed under Order 41 Rule 27 CPC. In this CMP, the plaintiff wants three documents to be taken on record. They are, (1) the Income Tax Return filed by the plaintiff for the year 1988-89; (2) the Income Tax Return filed by the 1st defendant for the year 1988-89; and (3) A post card said to have been addressed by the 1st defendant to one B. Konda Janardhan Rao.
14. It should be borne in mind that receiving of additional evidence under Order 41, Rule 27 of CPC is not a matter of course. The party who wants the Court to receive additional evidence in the appeal has to satisfactorily explain as to how he was prevented from producing the same during the trial. The reason behind such an insistence is not too far to seek. Cases are decided on the basis of evidence that is placed before the trial Court. If certain additional evidence is to be received, the parameters of adjudication get materially altered. In a way, receiving of additional evidence will enable the party who lost the litigation in the trial, to fill up the gaps or to provide the missing links. At the same time, technicalities should not be permitted to defeat the cause of justice. It is for this reason that the burden is heavily on the party to show as to what steps he has taken to procure such documents during the trial and he was incapacitated from doing so. It is in this background that the matter needs to be examined.
15. In the affidavit filed in support of the CMP, the only explanation offered by the plaintiff in relation to the first documents, is an under:
"Copies of the said returns could not be produced by me in the suit as the same were not furnished to me by the Income Tax Authorities at the time of trial. I could obtain the Certified Copies of the Income Tax returns only few days ago."
The 2nd document is the income tax return said to have been filed by the 1st defendant for the year 1988-89. As regards this document, no reasons whatsoever are submitted as to why the same could not be filed and marked during the trial. The 3rd document is the post card said to have been addressed by the 1st defendant to one Konda Janardhana Rao, which speak about the alleged acknowledgment of receipt of amount of advance from the plaintiff. The reason put forth by the plaintiff to explain his failure to file the same during the trial is that he could get that letter only a few days back. The reasons put forth by the plaintiff to satisfy the Court to receive the documents are hardly satisfactory.
16. Without standing on technicalities, let us consider the relevancy of the said documents to the subject-matter of the appeals. Nothing is evident from the income tax returns of the plaintiff and the 1st defendant that the 1st defendant had acknowledged receipt of any amount from the plaintiff. It is too difficult to accept that the plaintiff, who was so meticulous about the maintenance of accounts and who insisted on receipts for payments of even small and meagre amount paid to the 1st defendant either towards rents or certain alleged advances, paid Rs.50,000/- each on two occasions without insisting for a receipt. The income tax return of the plaintiff is a self-serving document. In the return of the 1st defendant there is no recital or entry to the effect that he received the said amounts from the plaintiff. The post card, which is said to have been written by the 1st defendant, is the one that does not even deserve the initial attention of the Court. It is said to have been addressed by the 1st defendant, who is a resident of Tadepalligudem, to a person by name B. Janardhana Rao, who is also said to be the resident of Tadepalligudem. It is as unnatural as it could be. This only indicates the desperate attempt on the part of the plaintiff. Therefore, the application filed under Order 41, Rule 27 of CPC is rejected.
17. In this appeal, two questions arise for consideration, viz.,
(1) Whether the plaintiff has proved the existence of oral agreement between them and the 1st defendant and whether they are entitled for a decree of specific performance of the same?
(2) Whether the suit filed by defendants 2 and 3 for eviction of the plaintiff from the schedule premises was maintainable?
18. The plaintiff filed the suit OS No. 44 of 1988 for the relief of specific performance of the oral agreement dated 1-5-1988. It is true that oral agreements are not prohibited in law. However, whenver the very existence of such an oral agreement is disputed by one fo the parties, heavy burden lies upon the party who pleads of such an oral agreement, to establish its existence as well as the conditions thereof with the support of clinching and admissible evidence. The nature and extent of proof in this regard varies from case to case. It depends upon the proximity or otherwise of the parties, nature of the transactions existing between them in the past, the conduct and various steps undertaken by the parties after the alleged agreement of sale etc,
19. In this case, the plaintiff was the tenant of the 1st defendant as on the date of the alleged agreement of sale. The plaintiff did not plead or establish that the mutual confidence between them and the 1st defendant was such that they paid to or received from the 1st defendant amounts without insisting upon receipts prior to 1-5-1988. If there was such a relationship between the parties, spread over for a substantial period, it would not have been difficult to accept the plea of the plaintiff that by reposing confidence in the 1st defendant, lie paid substantial amounts. On the other hand, the evidence on record reveals that between 5-5-1987 and 22-4-1988, the plaintiff is said to have paid about eleventh or twelve thousand rupees in the form of rent was well as loans to the 1st defendant. For this amount, about 18 receipts were taken by the plaintiff. The receipts cover the amounts varying from Rs.169/-(Ex.A4 dated 12-3-1988,), Rs.300/- towards rent (Exs.A1 dated 5-5-1987, A2 dated 21-6-1987, A3 dated 31-8-1987) to Rs.1,600/-on 25-10-1987 (Ex.A4 is a bunch of 15 receipts for various amounts). When such was the conduct and state of affairs between the parties, it is next to impossible to imagine that the plaintiff paid an amount of Rs.50,000/- on 1-5-1988 and another Rs.50,000/- on 6-5-1988 without there being either an agreement of sale or formal receipts.
20. To prove his contention the plaintiff examined PWs,l to 4. PW1 is the proprietor of the plaintiff-Company. He stated that the 1st defendant came to him on 1-5-1988 and offered to sell the premises and on the same day he paid an advance of Rs.50,000/- in the presence of PWs.2 and 3. In his chief examination, he has stated as under:--
"D1 informed me about the proposal for sale of the building as I am the tenant for the same since several years, I agreed to purchase the same. The bargain was settled in the presence of Yelamarthi Jaya Nageswara Rao (PW2) and S. Hanumantha Raju (PW3), for an amount of Rs. 2,00,000/-. On 1-5-1988, I paid an amount of Rs.50,000/- in the presence of the above said two mediators. Dl informed me that I would pay the balance of sale consideration of Rs. 1,50,000/- by 11-8-1988 and the sale deed. I have accepted."
As regards payment of Rs. 50,000/- for the 2nd time, he stated as under:
"The D-1 again came to me on 5-5-1988 and asked me to pay Rs.50,000/-. I informed the Dl that I will pay that amount to him after withdrawing same from the bank. My father and mother have got an an FOR for Rs.25,000/- in Bank of India, Tadepalligudem for a period of 5 years. 1 requested my father for money who promised to pay. On the next day my parents have cancelled the FDR and withdrew the amount from the bank and paid that amount to me. My parents paid me Rs. 34,700/-. I paid Rs.50,000/- to the Dl adding the balance from my business. Sanmuka Hanumantha Raju and Yelmarti Jaya Nageswara Rao were present when I paid the amount of Rs.50,000/-on 6-5-1988."
However, the version of PW2 in this context is as under:--
"Dl told PW1 that he intend to sell away his building as PW1 is carrying on business since 25 years and asked him whether he is willing to take. PW1 accepted to purchase the same. Myself and one Hanumantha Raju (PW3) went to the D-1 to bargain and the bargain was settled at Rs.2,00,000/- on 1-5-1988. Myself and Hanumantha Raju paid Rs.50,000/- Dl as advance and the said amount was given by PW1 to us".
While it was the case of the plaintiff that he got cancelled the FDR of his parents for the payment of 2nd instalment of Rs.50,000/-, the evidence of PW2 is totally different. It indicates that the so-called cancellation of FDR was for the purpose of 1st instalment. Following is the relevant portion: --
"PW1 and Dl agreed to the terms of the sale. My grand parents were having a fixed deposit in Bank of India, Tadepalligudem and they delivered the amount to PW1 after cancelling the FDR and receiving the amount from the bank. PW1 paid that amount to me and Hamtmantharaju and requested to pay that amount to Dl towards the sale consideration."
PW3 has altogether a different story to tell. According to him, on 1-5-1988, the brother of PW1 came to him and requested to make a bargain with PW1 for the same. This witness also says that the 1st defendant told that another instalement of Rs.50,000/- is to be made by 6-5-1988. This was neither pleaded nor spoken to by the plaintiff.
21. Another aspect of the matter is that according to PW1, the 2nd instalment was paid by himself on 6-5-1988 and he does not say that any person including PW2 and 3 were present. PW3 states that himself and PW2 went to the house of D1 on 6-5-1988 and paid Rs.50,000/-(2nd instalment) to Dl. The relevant portion reads as under :--
"On 1-5-1988, PWs 1 brother came to me and informed me that the Dl offered the schedule property where PW1 is staying as a tenant for sale and requested me to come for to make a bargain. Myself and PW2 went to the house of Dl at about 8-00 or 9-00 p.m. The bargain was settled for Rs.2,00,000/-. The Dl told us that an amount of Rs.50,000/-is to be paid on the same day before evening. Myself and PW2 Informed PW1 about the settlement and also about the demand of payment. Again myself and PW2 went to the house of Dl at about 4-00 p.m., and paid Rs.50,000/- to the Dl with a condition that another Rs.50,000/- is to be paid by 6th May, 1988.....Again myself and PW2 went to the house of Dl on 6-5-1988 and paid Rs.50,000/- to the D1."
22. PW4 is the father of PW1. He speaks to the fact of cancellation of the FDR and payment of Rs.34,700/- to PW1. He has categorically admitted that he did not have any documentary evidence of show that the amount he got under the FDR was given to PW1. It is his further case that as on 6-5-1988, his son owed an amount of Rs.98,625-06 ps., to him.
23. The discussion undertaken above as to the method of payment of even the rents by the plaintiff to Dl, the inconsistencies pointed out in the evidence of PWs. 1 to 4, that too from the depositions in chief, would clinchingly establish that the plaintiff has failed to prove the existence of any oral agreement with the 1st defendant and the so-called payments of advance of Rs.50,000/- each on 1-5-1988 and 6-5-1988. Therefore, the trial Court had rightly refused the relief of specific performance.
24. Now remains the question as to the maintainability of the suit filed by defendants 2 and 3 for eviction of the plaintiff. This question has two facets, viz.,
(i) Whether the proceedings are barred by the Rent Control Act?
(ii) And, if the suit is otherwise maintainable, whether there was compliance with Section 106 of the Transfer of Property Act?
25. Defendants 2 and 3 filed OS No. 158 of 1988 for eviction of the plaintiff from the suit schedule property. It was their case that they purchased the suit scheduled property under documents Ex.B4 dated 11-5-1988 and Ex.B5 dated 12-5-1988 from the 1st defendant. They got issued a notice calling upon the plaintiff to vacate the premises and on the refusal of the plaintiff, they filed the suit for eviction of the plaintiff from the suit schedule property, for a sum of Rs.7,280/-with interest at 12% from the date of the suit till payment towards rent and for damages subsequent to the date of filing of the suit.
26. The plaintiff raised an objection in the written statement stating that since the rent for the premises was Rs.300/-per month, the suit as framed was not maintainable and barred by the provisions of the Rent Control Act. The trial Court took the view that that wherever suits for recovery of possession of certain properties is filed together with the ancillary relief of recovery of rents, etc., such suits are maintainable even if barred by any special enactments. In support of this view, it had relied upon the judgment reported in Swamulavaru v. Gunnayya 1981 (2) An.WR 290, which arose under the A.P. (Andhra Area) Tenancy Act, 1956 and Estate Sri Lakshmiji Maharaj Temple v. A Narsing Rao1989 (1) ALT 141, which arose under the A.P. Charitable and Hindu Religions Institutions and Endowments Act, 1956. I have my own doubts as to whether such an approach is compatible with the Scheme and Object underlying the Rent Control Act. On this issue. I agree with the leaned Counsel for the appellants that if certain premises are amenable to the provisions of the Rent Control Act, suits are not at all maintainable however camouflaged they may be either by inclusion of ancillary relief or otherwise.
27. However, the basic question would be as to how much was the rent for the premises so that the question of jurisdiction can be decided. While the specific case of the defendants is that the rent for the premises from September, 1987 onwards was Rs.1,300/- per month, it is the case of the plaintiff that the rent was Rs.300/- per month. If the defendants are able to establish that the rent was not Rs.300/- per month from September, 1987, the suit will be maintainable. On the other hand, if the rent is found to be Rs.300/- per month, the suit ceases to be maintained.
28. The 1st defendant relied upon Ex.B2, in support of their contention that the rent for the premises was Rs.1,300/- per month. Ex.B2 is a receipt issued by the 1st defendant and signed PW1. In this receipt, it is stated that PW1 paid an amount of Rs.1,300/- towards the rent for September, 1987. This document was put to PW1, during the evidence on behalf of the plaintiff. In his cross-examination, PW1 stated in this regard as under:
"The signature in Ex.B2 is that of mine in receipt No. 1/5 dated 22-4-1988. It is true that it is mentioned in Ex.B2 that the rent for September was paid as per the receipt No. 1/5 dated 22-4-1988. As per Ex.B2 the rent for the month of September is Rs.1.300/-."
This was the statement made by him on 24-11-1994. Thereafter, the same witness called on 13-12-1994 and 22-5-1995. Obviously having realised the impact of his admission as to Ex.B2 in his re-examination on 22-2-1995, has stated as under:--
"I never paid Rs.1,300/- towards rent for a month in any month for the plaint schedule property. The signature on Ex.B2 is not mine."
The witness was cross-examined on this aspect, wherein he stated as under:
"The signature on Ex.B2 is appeared to me and hence 1 admitted previously."
29. The 1st defendant as DW1, who was the land lord in September, 1987 and from whose custody Ex.B2 came, stated in his examination that the rent was. Rs.1,300/- per month. The only suggestion put to him in the cross-examination as regards Ex.B20 was that there was correction as to month. The relevant portion reads as under:
"It is not true to say that the month in Ex.B2 is corrected, it is not true to say that PWl never paid rent at Rs.1,300/- by Ex.B2."
A reading of Ex.B2 shows that the month of September was written and not indicated with its figure. There are no corrections on it. PW1 has categorically admitted that he signed Ex.B2 and according to him, the rent for the month of September, 1987 was Rs.1,300/- per month. A feeble attempt was made to extricate himself from the admissions in the form of re-examination. Whatever little he could score in the re-examination, he lost immediately in the re-cross examination. No suggestion was made to DW1 that Ex.B2 does not contain the signature of PW1 or it does not relate to the month of September, 1987. It is not the case of the plaintiff that they paid any rent for the premises subsequent to September, 1987, which is less than Rs. 1,300/-, Under these circumstances, the irresistible conclusion is that the rent for the premises in question was Rs.1,300/- in September, 1987 and there is nothing to indicate that the rent was different for subsequent years. Therefore, the suit as filed was maintainable and the provisions of the Rent Control Act did not attract the premises.
30. Now remains the question as to compliance of Section 106 of the Transfer of Property Act.
31. Sri G. Krishna Murthy, the learned Counsel for the plaintiff submits that, firstly there is no agreement of tenancy between the plaintiff and defendants 2 and 3 and secondly the notice issued by them under Ex. Bl does not conform to Section 106 of the Transfer of Property Act.
32. As regards 1st contention it needs to be seen that once the tenancy of the said premises between the plaintiff the 1st defendant is not disputed, and once it emerged that the title to the property stood transferred from 1st defendant to defendants 2 and 3, absence of agreement of tenancy between the plaintiff on one hand and the defendants 2 and 3 on the other pales to insignificance.
33. In Ex-B10, defendants 1 and 2, after narrating the various circumstances, pategortcally stated that notice dated 14-5-1988 under Section 106 of the Transfer of Property Act is issued terminating the tenancy and required the plaintiff to vacate the premises by 31-5-1988. One of the ingredients of Section 106 is that for a valid termination, a notice of 15 days expiring with the end of the month of the tenancy is essential. In this case, the notice is dated 14-5-1988 and the plaintiff was required to vacate the premises by 31-5-1988. If we go by these dates, there is compliance. However, the learned Counsel for the plaintiff submits that it is the date of receipt of the notice that will be the starting point for calculating 15 days. In support of this contention, he relied upon various judgments, viz., Francis Jerone Fernandas v. Anthony Pedad Cardoza, MANU/KA/0207/1984 : AIR1984Kant226 , Shiv Narain v. Chandrika Prasad, MANU/UP/0054/1973 : AIR1973All155 , Mpsrt Corporation v. Indore Divn, Bus Association AIR 1987 MP 205, PSP Seshagiri Rao and v. Kalabai Rathi, MANU/AP/0202/1982 : AIR1982AP186 and Dattonpant v. Vithal Rao, MANU/SC/0396/1975 : AIR1975SC1111 .
34. Whether the notice issued is in conformity with the provisions of Section 106 of the Transfer of Property Act and the other subsidiary matters are mixed questions of facts and law. If only the necessary factual foundation is laid in the pleadings and established through evidence, the consequences provided for in law would follow. It becomes more significant having regard to the fact that non-compliance with any of the requirements under Section 106 would not make the notice and the consequential steps void. The Hon'ble Supreme Court in its decision in Calcutta Credit Corporation v. Happy Home, MANU/SC/0343/1967 : 2SCR20 , observed as under:
"A notice which complies with the requirements of Section 106 of the Transfer of Property Act operates to terminate the tenancy, whether or not the party served with the notice assents thereto. A notice which does not comply with the requirements of Section 106 of the Transfer of Property Act in that it dose not expire with the end of the month of the tenancy, or the end of the year of the tenancy, as the case may be, or of which duration is shorter than the duration contemplated by Section 106, may still be accepted by the party served with the notice........."
The Hon'ble Supreme Court was dealing with the case where the party which issued by notice sought to retreat from it on the ground that the notice was defective, though the party who received the notice did not raise any objection. The observation extracted above indicates that it is permissible in law for a party who received notice under Section 106 to waive any objection as to non-compliance of the notice under Section 106; because
"..............a tenancy is founded in contract, and it is always open to the parties thereto to agree that the tenancy shall be determined otherwise than by notice served in the manner provided by Section 106 of the Transfer of Property Act, or by a notice of a duration shorter than the period provided by the Act. (ibid)"
Such an agreement of the parties can either be express or can be implied from the conduct of the parties.
35. In this case, defendants 2 and 3 categorically stated in their notice in Ex.B10 as well as para 16 of the plaint that they got issued notice under Section 106 of the Transfer of Property Act. Neither in the reply issued by the plaintiff, which is marked as Ex.B12, nor in the written statement, the plaintiff had raised any objection as to the form or contents of the notice under Ex.B10. They were only describing the defendants as trespassers and disputing the very title. When there was no factual foundation in the pleadings or in the notice preceding it the evidence could not be expected to be otherwise. The result is that the plaintiff is deemed to have waived any objection as to the non-compliance of Section 106 of the Transfer of Property Act by defendants 1 and 2 when they issued Ex-B10. The various citations relied upon by the learned Counsel for the plaintiff would get attracted if only the plea was raised by the plaintiff in the pleadings. In the absence of the same, the contention cannot be accepted.
36. There is another aspect of the matter. It is not in dispute that after paying the rents for the months of June, July and August, 1987, PW1 made an endorsement on the reverse of the receipts stating that he; will vacate the premises . That endorsement is marked as Ex.A25 and it is dated 31-3-1987. The period of, one year provided for in Ex.A25 expired on 31-3-1988. Thereafter the plaintiff becomes tenant holding over. The requirement as to the notice to be issued in such cases as contemplated under Section 111(h) of the Transfer of Property Act are totally different and less vigorous as to point of time, duration of notice, etc. Once it is evident from Ex.A25 that the plaintiff has undertaken to vacate the premises from the date of Ex.Al, they became tenant holding over thereafter and it is not permissible to raise the plea as to non-compliance of Section 106 notice. Thus, viewed from any angle, the contention of the learned Counsel for the plaintiff cannot be accepted.
37. Therefore, the decree of the trial Court in OS No. 158 of 1988 is sustained for the reasons stated above.
Cross Objections in AS No. 2862 of 1996:
38. In the plaint in OS No. 158 of 1988 filed by the defendants 1 and 2, along with the relief of recovery of possession, they have also sought for a decree for recovery of an amount of Rs.7,280/- representing the rent for the premises from 12-5-1988 to 1-6-1988 at the rate of Rs.1,300/- per month. The trial Court granted a decree for the same calculating the rent at the rate of Rs.300/- per month. Having regard to the findings recorded in this appeal as to the rent of the premises on the basis of Ex.B2 and other relevant evidence to the effect that the rent of the premises is Rs.1,300/- per month, the decree of the trial Court, shall stand modified to the one for Rs.1,300/- per month.
39. In the result, the appeals are dismissed and the Cross-Objections are allowed. The decree of the trial Court in OS No. 44 of 1988 is affirmed and the decree in OS No. 168 of 1988 as regards eviction and other reliefs is affirmed. As regards the recovery of arrears of rent, it shall stand modified to the extent indicated above. The defendants shall be entitled to their costs.
40. After the judgment is pronounced, the learned Counsel for the defendants submitted that the question as to damages for use and occupation of the premises subsequent to the filing of the suit may be dealt with.
41. Heard the learned Counsel for the plaintiff as well as the defendants on this aspect. Instead of driving the parties to the trial Court as regards the adjudication of damages for use and occupation of the premises, it is deemed just and proper, having regard to the facts and circumstances of the case that the plaintiff in OS No. 44 of 1988 shall be liable to pay amount at the rate of Rs.1,300/-(Rupees One thousand three hundred only) per month towards damages for use and occupation of the suit schedule premises from the date of filing of the suit till the date of vacation of the premises. In realising the same from the plaintiff, the amount already deposited by him shall be given credit to.