1999(4) ALL MR 604
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.M. LODHA, J.
Shri Narottamdas Trikamdas Toprani & Ors. Vs. The Trustees Of The Port Of Bombay
First Appeal No.1050 of 1987
2nd September, 1999
Petitioner Counsel: MR. G.N. PANDIT for M/s .PANDIT & GHOSH
Respondent Counsel: MR. U.J. MAKHIJA
(A) Transfer of Property Act (1882), S.106 - Notice to quit Validity - Leased premises consisting of both land and buildings- Notice need not separately and specifically describe land and buildings.
(B) Civil P.C. (1908), S.96 - First Appeal - Plea that notice to quit was ambiguous not raised in W.S. or during trial - Plea of defect in notice cannot be raised for first time in appeal. (Para 6)
(C) Transfer of Property Act (1882), S.105 - Perpectual lease - Merely because lessee permitted to construct buildings, subiet or assign the leased premises - Does not render lease as perpectual. (Para 9)
Sakharampant Laxmanrao v. K.L. Lodhi , AIR 1953 Nagpur 265 [Para 5]
Alphanso Pinto v. Thukru Hengsu, AIR 1955, Madras 206 [Para 5]
Duabhai Lalji Kalidas v. Ramniklal Somchand Mehta., AIR 1975 Gujrat, 213 [Para 5]
Board of trustees of port of Bombay v. Corn Products Company (India) Ltd, 1995(2) Mh. L.J. 449 [Para 5,7]
Sivayogeswara Cotton Press Devangere and ors. v. M. Panchksharappa and another, (1962)3 SCR 876 [Para 9]
JUDGMENT :- The original defendant have come up in first appeal filed under section 96 of the Code of Civil Procedure aggrieved by the judgment and decree dated October 27. 1987 passed by the Bombay City civil Court at Bombay in Short Cause suit No.612 of 1969 whereby the said court decreed plaintiffs suit and directed defendants to deliver possession of the suit premises within one month therefrom and the ancillary order for enquiry into the future mesne profits i.e. from the date of filing of the suit till possession was delivered.
2. The Trustees of the Port of Bombay (for short 'plaintiffs') filed the suit on 21.1.69 against Narottamdas Trimbakdas Toprani. Devidas Ramchand, Menabai Trimbakdas and Khatau Khimji Poonja (for short 'defendants'). It was prayed therein that the defendants be ordered and decreed to deliver to the plaintiffs vacant and peaceful possession of the premised described in Exhibit "A" annexed to the plaint and that the defendants be further ordered and decreed to pay to the plaintiffs the sum of Rs.229.62 being arrears of compensation for the use and occupation of the said premises from 1st November, 1968 to 31st December, 1968 at the rate of Rs. 114.81 per month and further compensation at the same rate from 1st January, 1969 till delivery of vacant and peaceful possession of the said premises. The plaintiffs also prayed for decree against the defendants to pay property taxes and costs. In the plaint, the plaintiffs set up a case that they are the owners of the piece of land bearing old R.R.No. 1322 admeasuring 344 and 4/9 square yards on the Mody Bay Estate. The detailed description of the property was given in Exhibits "A" to the plaint. The plaintiffs demised the premises as described in Exhibit "A" to Gokuldas Doongarsy, Hansraj Hari and Herkisondas Jadawjee Vora Jointly by a deed of lease dated 1st June, 1937 on the terms and conditions set out therein. The said lease was for a period of 30 years commencing from 1st April, 1936. It is the case of the plaintiffs that the suit premises came to be transferred to the present defendants by deed of appointment and transfer dated 21.4.47, 13.1.50 and 26.12.57,. The lease expired on 31st March. 1966 and thereafter, the defendants continued to remain in occupation of the said premises from 1st April, 1966 as monthly tenants of the plaintiffs and the defendants were paying rent in respect of the said premises to plaintiffs at the rate of Rs.114.81 and they also paid compensation upto and for the month of October, 1968 from the same rate. By a notice dated 15th September, 1966, the plaintiffs terminated the tenancy of the said premises and called upon the defendants to quit vacate and deliver the vacant and peaceful possession of the said premises on the expiration of the period of said notice. The defendants,however, failed and neglected to deliver vacant and peaceful possession of the said premises to plaintiffs necessitating the filing of the present suit.
3. The defendants filed written statement jointly and averred that the suit as prayed was not maintainable in as much as suit has been filed against the defendants in the personal capacity whereas in fact, the defendants are the trustees of the registered trust Hansraj Damodar Trust and the lesses of the plaintiffs are the trustees of the said trust. They also pleaded that the suit discloses no cause of action for eviction of the lessees under the lease deed between the plaintiffs and the trustees of the said Hansraj Damodar Trust and on that count also, the suit was liable to be dismissed. The defendants set up the plea that notice terminating the lease between the plaintiffs and the said trustees of Hansraj Damodar Trust is bad and illegal in law in as much as the said notice has been served by the Assistant Estate Manager who has no power in law to terminate the said lease since he cannot be considered to be the lessor under the relevant terms and conditions of the lease deed. The defendants admitted that by deed of lease dated 1st June, 1937, the plaintiffs demised the said premises to Hansraj Damodar Trust for 30 years. According to them,after expiry of the said lease on 31st March, 1966, it was mutually agreed and understood between the plaintiffs and the present trustees of the sid trust as lessees to continue to remain in occupation of the leased premises from 1st April,1966 as the permanent monthly tenants so long as the said trustee of Hansraj Damodar Trust continued to pay regularly the monthly rent of said premises as agreed under the lease deed which by efflux of time stood determine. The defendants thus averred that they have been accepted as permanent monthly tenants so long as they go on paying regularly the monthly rent of the said premises. The defendants admitted that by notice dated 15th September, 1966, the plaintiffs purported to terminate the tenancy and called upon the defendants to vacate and deliver peaceful possession of the suit premises. However, the defendants stated that in the said notice reasons for the said termination were not stated inspite of oral agreement of permanent tenancy. The defendants, therefore, pleaded that notice terminating tenancy was illegal and improper. According to defendants, they have paid rent upto February, 1969 and taxes upto March, 1969. Accordingly, the defendants prayed that suit be dismissed with costs.
4. The trial court, in the light of the pleading of the parties, framed six issues in all and after recoding the evidence held that plaintiffs were able to prove that the tenancy of defendants was legally and validly terminated and that plaintiffs were entitled to possession. The trial court negatived the stand of the defendants that they were permanent lessees of the suit premises. The trial court also held that defendants have not been able to prove that plaintiffs waived their notice to quit in view of its findings aforesaid, the trial court decreed plaintiffs' suit for possession.
5. Mr. G.N. Pandit, learned counsel appearing for appellants-defendants firstly contended that notice to quit dated 15.9.66 was bad-in-law-. According to him, the leased premises were land and building and by notice to quit dated 15.9.66 (Exhibit "B") the lessors only terminated the lease for plot of land alone and not for the building. The contention of the learned counsel is that it is not open to the lessor to split the tenancy and since by notice to quit the tenancy in respect of building has not been terminated, there is no valid termination of the entire leased premises. In support of his contention, the learned counsel relied upon Sakharampant Laxmanrao v. K.L. Lodhi and another, AIR 1953 Nagpur 265. On the other hand Mr. U.J. Makhija, learned counsel appearing for the respondents plaintiffs urged that the notice dated 15.9.66 validly terminates the lease of the entire premises. According to him in the notice the description of the leased property as per lease deed description of the leased property as per lease deed has been given and therefore the lease of the entire premises stands terminated by the notice. He submitted that while giving the notice under section 106 of the Transfer of Property Act, it is not required to terminate the tenancy of the land and the building separately by specific words when the entire description of the property in question as per lease has been stated in the notice. The learned counsel for respondents-plaintiffs also urged that the word 'land' sued in the notice obviously includes the superstructure standing thereon which was also leased out to the defendants. Mr. Makhija would also urge that since under the lease deed it was open to the lessee to remove the structure standing on the land during the last three months of the lease period, it was not incumbent upon the lessor to specifically mention the word 'building' in the notice to quit. In support of his submissions Mr. Makhija relied upon the decision of Madras High Court in Alphanso Pinto v. Thukru Hengsu and another,AIR 1955, Madras, page 206, Duabhai Lalji Kalidas v. Ramniklal Somchand Mehta. AIR 1975 Gujrat, 213 and the judgment of this court in Board of trustees of port of Bombay v. Corn Products Company (India) Ltd., 1995(2) Mh. L.J. page 449. The learned counsel also referred to the meaning of the word 'land' as described in Broom's Legal Maxims (10th Edition). page 259.
6. The demised premises as per the lease deed dated 1st June, 1957 are piece of land situated on the Mody Bay Estate described in the lease deed as piece or parcel of land admeasuring 344 square yards and 49 of another square yard of thereabouts and bounded on/or towards North by land belonging to plaintiffs partly leased to Ardeshir Framji Ghaswalla, on or towards South by Goa Street, on or towards East by land belonging to plaintiffs and leased to Holland and Company and on or towards the West by land belonging to plaintiffs.the said premises are registered in the Books of Collector of Land Revenue, Bombay under Gadastral Survey No.1192 (Fort Division). Alongwith the lease deed, the plan is annexed depicting the demised premises in pink colour. In the notice dated 15th September, 1966 sent by plaintiffs to defendants, the defendants have been called upon to quit ,vacate and deliver vacant and peaceful possession of plot bearing old R.R. No. 1322 admeasuring 344 and 4/9 square yards, situate at Mody Bay Estate. The description of the premises in the notice was given as bounded on or towards the North by the trustees (plaintiffs' land) leased to Shankar Achut bounded on or towards East by the Trustees (plaintiffs land) leased to Rey. Father Francis Apolinaris Mascarenhas Vicar and trustees of St. John Evangelist Church and bounded on or towards West by the trustees (plaintiffs land) leased to Tayab Haji Hasham and others. Upon comparison of the demised premises as per lease deed and the notice to quit, it cannot be said there is any discrepancy in the description of the demised premises. In the notice to quit, the defendants were called upon to vacate and deliver vacant and peaceful possession of the plot as per description. Obviously, by this notice to quit, the defendants understood that they have been called upon to quit, vacant and deliver the entire leased premises which included the land and building thereon and it was because of this reason that in the entire written statement, not a whisper is raised by the defendants that the notice to quit only related to and was issued in respect of the land alone and not the entire premises comprising land and building. The defendants did understand the expression "The plot bearing old R.R. No. 1322, admeasuring 344 and 4/9 square yards on the Mody Bay Estate, now in your occupation (and which premises are more particularly described hereinunder)" to mean the demised premises as per lease viz. the piece of land and building standing thereon. At the time of filing of the written statement or during the trial, the defendants found no ambiguity as regards the description of demised premises in the notice to quit and neither such plea was raised nor evidence was led in that regard. The question whether the whole of the premises occupied by the lessee is included in the notice or not is a question of fact and it for the party challenging the validity if notice to quit to raise specifically in the written statement that by description given in notice to quit which does not relate to whole of demised premises, the lease does not stand determined so that such question of fact can be determined by the court in trial. In the absence of any plea having been raised in the written statement that in notice to quit the whole of leased premised has not been described, the lessees cannot be permitted to raise for the first time in appeal that notice to quit was defective after all notice to quit is required to be considered liberally by the court and not with a view of finding fault. The defendant has challenged in the written statement the legality and impropriety of the notice to quit on the grounds that no reasons for the termination of tenancy inspite of the oral agreement of permanent tenancy have been given and that the constituted attorney of the plaintiffs has no power in law to terminate the tenancy. There is not a semblance of pleading in the entire written statement that by notice to quit dated 15.9.66 the tenancy of entire leased premises was not terminated. there is no evidence to that effect either. In the circumstances, the contention of the learned counsel for appellants for the first time in appeal that notice to quit dated 15.9.66 was bad since by the said notice the whole of the leased premises were not terminated cannot be accepted.
7. Besides that, on facts I have already noted above that the description of the leased premises given in the lease deed and the description of the property in notice to quit do not differ and it is clear that by notice to quit dated 15.9.66, the plaintiffs terminated the tenancy in respect of the entire demised premises and not of the land alone excluding building standing thereon. Similar question came up for consideration before this court in Board of Trustees of Port of Bombay v. Corn Products Company (India) Ltd., 1995(2) Mh.L.J. 449 and the learned Single Judge of this court in paras 10.11.12 and 13 of the report held thus.
"10. In the Trial Court, the Appellant, it appears, had at some stage tried to argue that what was leased to the respondent was only the land and no structure was the subject matter of the lease. therefore the notice to quit, as is given in the present case, is perfectly a valid notice even though it does not in so many words terminate the tenancy of the Respondent in respect of the structure for no structure was the subject matter of the demise. This argument was obviously fallacious and before me at the time of hearing of this appeal Mr. Makhija fairly conceded that looking to the overall facts and circumstances of the case, it has got to be said that when the Respondent was inducted as a tenant on the property, the property consisted not only of land but also of some structures. Mr.sakhardande, the learned advocate for the Respondent also canvasses for that proposition. therefore whatever be the case of the Respondent in the trial Court, before me, it was a common ground that when the Respondent was included on it, the property consisted of some land and buildings. The question is ,in such a situation is a landlord while giving a notice under section 106 of the Transfer of Property Act, required to terminate the tenancy of the land and the building separately and specifically or whether the termination in one breath of the lease of the premises, as is done in the premises, as is done in the present case, would be proper and legal.
11. The notice under section 106 of the Transfer of Property Act in the present case, insofar as is material reads as follows:
"On behalf of the Trustees of the Port of Bombay. I have to give you this notice to call upon you to quit, vacate and deliver vacant and peaceful possession of Old R.R.No. 1727 admeasuring 2079 B/9 sq. yds. or 1739.05 sq. mtrs. on Sassoon Dock Estate, now in your occupation (and which premises are more particularly described overleaf at the expiration of the month next following the current month of your tenancy i.e. on the 28th day of February 1969)."
On the reverse of the front page of the notice the description of the premises is given as follows:
"Bounded on or towards the North East by a road belonging to the said Trustees.
Bounded on or towards the South East by other land of the said Trustees.
Bounded on or towards the North West by other land of the said Trustees.
Bonded on or towards the South West by compound wall belonging to the said Trustees and beyond that by Dumayne."
12. The lease deed under which the Respondent was inducted as a tenant defines various words and expressions as used in the document. the expression "the said" is defined to mean as all the land demised under the deed. "Building" has been defined to mean any building from time to time stand\ing on the said land. the expression "said premises" has been defined to mean and include the said land, the buildings, the works and everything comprised therein or enjoyed therewith and shall be construed in the widest sense . A reference to the said land, building or works or to the said premises is to include any part thereof. The title of the deed is as follows:
"Lease of a piece of land and building on the Sassoon Dock Estate containing an area of 2.079 8/9 square yards for the purpose of a printing press and godown."
8. I find myself in full agreement with the view taken by the learned Single judge of this court in the case cited above and I am of the view that in the facts and circumstances of the present case also by using expression 'plot' and giving detailed description of the said plot in the notice, the tenancy of the entire demised premises was validity terminated and that in the fact situation, it was not incument upon plaintiffs to describe the land and building separately while terminating the tenancy in the notice under section 106 of Transfer of Property Act. The judgment in Sakharampanth Laxmanrao (supra) relied upon by the learned counsel for defendants-appellants has no application and that only lays down a general proposition that rent controller cannot split up tenancy and give permission to landlord to serve quit notice regarding partion of tenancy only which is not the case in hand.
9. Mr. Pandit learned counsel for appellants then contended that lease in question is in fact lease in perpetuity because under the lease deed, the defendants were permitted to construct building and give the premises on subletting. In this connection, he extensively read the terms of lease deed and relied upon the judgment of the Apex Court in Sivayogeswara Cotton Press Devangere and ors. v. M. Panchksharappa and another, (1962)3 SCR page 876. This contention of the learned counsel is also devoid of any substance and merit. Firstly, it would be seen that it was not the case of the defendants in the written statement that under the lease deed dated 1st June. 1937, it was intended to grant lease to the defendants in perpetuity though it was initially for a period of 30 years. Rather, the specific case to an end. If the lease dated 1.6.37 was lease in perpetuity, on expiry of 30 years though 1966, as it was mutually agreed and understood between the present trustees of the said trust and the plaintiffs, the plaintiffs would allow the said trust as lessees to continue to remain in the occupation of the said lease premises from 1st April, 1966 as the permanent monthly tenants so long as the said trustees of the said trust continue to pay regularly the monthly rent of the said premises as agreed under the lease deed which by effiux of time had been determined. This stand taken by the defendants in the written statement clearly belies the stand of the defendants now sought to be raised in appeal that the lease of the premises under the lease deed dated 1.6.37 was in perpectuity. The defendants even otherwise cannot be said to have been granted lease in perpectuity under the lease dated 1.6.37 merely because the lessees were permitted to raise construction or alter the leased premises after obtaining necessary permission from plaintiffs or to subiet or assign the lease premises after obtaining necessary permission from the plaintiffs. What has been provided in the lease deed is: " lessees do hereby jointly and severably covenant....... and will at the expenses of the said lessees in all respects forthwith put the said building into good and, substantial repair both inside an out to the satisfaction in all respects of the said trustees and will nor add to or alter the said building and conveniences or the construction thereof after the same shall have been repaired as aforesaid without the consent in writing the trustees which consent may either be withhold or may be given by the said trustees on such terms including the payment of enhanced rent or of a fine of premium by the said lesses as the said trustees shall in their discretion think fit.......and the said lessees shall not during this demise mortage the said premises by way of under lease and shall not assign the demised premises without the consent in writing of the said trustees first obtained ........ and it is hereby agreed and declared that the said trustees may carry out any works empowered under their act and also carry on or permit their lessees or tenants to carry on any business connected with or incidental to the trade of the city or Port of Bombay or the manufactories or commerce thereof and erect any buildings in connection therewith or any other works notwithstanding that by reason of any of the matters above referred to or any nuisance or annoyance arising therefrom the light and air or the view or prospect or the convenience or comfort now or hereafter to be enjoyed by the said lessees in respect of the premises hereby demised or the buildings now or hereafter erected thereon may be affected ......." By no stretch of imagination, the said covenant can be construed to infer the intention of the parties that lease was granted to defendants in perpetuity. The intention of the parties obviously, have to be gathered from the document itself and not from any extraneous material. On the proper construction of the terms of lease deed already referred to hereinabove, it is very difficult to hold that the intention between the parties was to grant the lease of the demised premises to the defendants in perpetuity though it was for a specific period of 30 years. The strong reliance was placed by the learned counsel on the judgment of the Apex court in Sivayogeswara Cotton Press, Devangare and ors. (supra), in the said judgment, the Supreme Court was dealing with the terms and conditions of the lease deed which read thus-
"For the 1st period of 20 (twenty) years commencing from the 1st October, 1914, and ending on the 30th day of September, 1934, you shall pay to me Rs.350/- (three hundred and fifty_ rupees being the annual rent reserved every year in advance and obtain proper receipts of the payment from me. If before the expiration of the said period of 20 (twenty) years you will remove your factory from the said land hereby leased you are bound to pay me annually the rent of Rs.350/- (three hundred and fifty rupees) for the (torn) 20 (twenty) years but you are entitled to retain in possession of and the road till the 30th September, 1934.
After the expiration of the said period of 20 (twenty) years mentioned in the 1st clause hereby you shall be at liberty to continues the lease of the said land and the said road and keep the said land and the said road in your possession as long as you thus continuing the lease of the said land and the said road you shall pay to me annually the sum of Rs.100/-(four hundred rupees) as rent of the said land and the said road of r 1st ten years beginning from the 1st October, 1934, and ending on the 30th September, 1944, and after the expiration of the period of ten years the annual rent payable by you for the said land and the said road will be Rs.500/- (five hundred rupees) per annum but you shall always be at full liberty to give up the said land the said read and terminate this lease at any time you may desire so to do after the 1st October, 1934, and the rent payable in respect of the said land and the said read shall cease to be paid by you from the time you may give up the said land and the asid road after the 1st October, 1934. But i agree and bind myself not to call upon you at any time to give up the possession of the said land and the said road as long as you desire to keep the same for your purposes observing the terms of this agreement.
You are at full liberty to erect, as many buildings, godowns, factories, bunglows and other structures etc. as you may desire on the land hereby leased and to pull down, re-erect and make any alteration in the same\me as you may desire. I shall not raise any objection to your erecting any such structures on the land or to your use and enjoyment of the land in any way for any purpose as you may desire.
I hold myself liable to pay always the annual assessment of the land hereby leased to Government you shall not be liable for such land assessment. But you shall be liable to pay all fines and other taxes which the Government will hereafter impose for having converted the arable or cultivable land into land for factories and building purposes.
You shall be always entitled and have full liberty to subiet or re-let the said land together with the sid road for any purpose to any other person or persons on any conditions you like but without affecting in the least any of the conditions or terms of this lease.
This lease is binding on me, my heirs, executors, administrators, successors and assigns as well as on your heirs, executors, administrator, successors and assigns. I have hereby by this writing granted you this lease by my own time will and in my full senses and I bind myself to abide by its terms and conditions mentioned above.
"The lessee with a view to raise a substantial structure by way of factory premises, residential quarters and other appurtenant buildings took a lease of extensive land, about 4 1/2 acres in area those lands, at the time of the transaction in question, were being used for agricultural purposes with the permission of the Government who were the ultimate owners. IT character could be changed with the permission of the Government on payment of certain prescribed fees and charges. the parties could not be certain of obtaining the necessary Government Sanction to the conversion of the tenancy from agricultural of building purposes. Therefore, the stipulation was clearly made that in the event of the Government refusing to sanction the conversion, the lease will be deemed to have come to an end. If the permission were forthcoming, and if the lessee but up substantial structures, it would be in his interest to continue in possession of the premises demised by the lease as long as he found it worth his while, but the lessee may have apprehended that circumstances might supervene necessitating his walking out of the venture. He therefore had to make provision i the lease entitling him to surrender the lease so as to avoid the liability for payment of future rent. But the lessor on his part would be equally anxious to conserve his rights and therefore he insisted upon the payment of rent for at lease 20 years irrespective of the consideration whether or not the tenant continued to occupy the premises. Thereafter, the lessor stipulated for enhanced rent of Rs. 400/- per annum for the first ten years aforesaid, and Rs. 500/- thereafter for all times that the lessee continued to occupy the premises. It could not therefore have been in the contemplation of the parties that the lease should be only for the life of the grantee or for an idenfinite period which could be terminated at the will of the lessor. In order to ensure that the lessor should nor eject the lessee at his sweet will, the term was specifically included in the lesas that it will not be open to the lessor to do so."
11. In the Backdrop of the aforesaid facts wherein the lessor agreed and made himself bound to not to call upon the lessee at any time to give up the possession of the demises premises so long as the lessee desired to keep the same and observed the terms and conditions of the agreement, though the lease was initially for a period of 20 years on a fixed rent of Rs.550/- every year renewed thereafter for 10 years for annual rent of Rs. 500/-, the Apex Court held that the lessee was permanent lessee. In the present lease, there is no such skriputation that lessor shall not call upon the lessee at any time to give up the possession of the demised premiser after 30 years so long as the lessee continued to comply with the terms and conditions of lease. In the facts and circumstances of the case,therefore, it cannot be held that under the lease deed dated i.e.37. the parties intended the lease granted to defendants would be the lease in perpectuity.
12. The plea set up by the defendants in the written statement that there was oral agreement between the parties after the expiry of the lease on 31st March, 1966 that lessees could be permitted to continue to remain in occupation of leased premises from 1st April, 1966 a permanent monthly tenants has not at all been proved. The learned counsel for appellants could not show nor did he argued that by the oral agreement between the parties, on expiry of lease, the defendants were permitted to remain in occupation of the leased premises as permanent monthly tenants.
13. Lastly, the learned counsel for the appellants argued that notice to quit was issued to the four persons individually though the premises were taken on lease by them as trustees of the trust Hansraj Damodar Trust. The lease deed is between the trustees of the Port of Bombay of the one part and Gokuldas Doongarsey, Hansraj Hari and Herkisondas Jadawiee Vora, the trustees of the estate of Hansraj Damodar Toprani deceased. In the plaint itself,it has been stated that by the deeds of appointment and transfer dated 21.4.47, 31.1.50 and 26.12.57,the premises were transferred to the present defendants as trustees of the estate of deceased Hansraj Damodar Toprani. The notice to quit has been addressed to all the four trustees as joint tenants and therefore, such notice cannot be faulted.
Certified copy expedited.