Second Appeal No.92 of 1993

16th April, 2010

Petitioner Counsel: Shri. ROHIT DEO
Respondent Counsel: Shri. ANJAN DE

Cases Cited:
Raghuram Rao Vs. Eric P. Mathias, 2002(2) ALL MR 962 (S.C.)=(2002)2 SCC 624 [Para 8]
Sivayogeswara Cotton Press, Devangere Vs. M. Panchaksharappa, AIR 1962 SC 413 [Para 11]
Bejoy Gopal Mukherji Vs. Praful Chandra Ghose, A.I.R. 1953 S.C. 153 [Para 11]

JUDGMENT

JUDGMENT :- This is an appeal by the defendants feeling aggrieved by the decree of attachment passed against them by trial Court and confirmed by the appellant Court. The parties shall hereinafter be referred to as plaintiff and defendants.

2. The facts giving rise to the appeal are as follows :

Plaintiff is a Municipal Council at Saoner. The plaintiff is the owner of the said suit property which is plot no.531 admeasuring 1.40 acres. The said plot was let out by the Municipal Council to one Dosabhai Rustomji Patel for a period of 30 years. The lease commenced from 15.05.1943 and was to come to an end on 14.05.1973. The said plot of land was given to the said Dosabhai Patel for the purpose of running Ginning and Pressing Factory. Said Dosabhai had executed a registered deed of lease in favour of the Municipal Council. Dosabhai had transferred the lease in favour of defendant no.2. Lease has come to an end by efflux of time. Defendants have failed to vacate the plot, hence the plaintiffs instituted the suit.

3. Defendants do not dispute that the suit property belongs to the plaintiff. They also do not dispute that the suit property was let out to Dosabhai Patel for running a Ginning and Pressing Factory. They also do not dispute that in lease deed period of lease was fixed for 30 years. However, the defendants contended that the intention of the parties was one of permanent lease and the lease in question according to defendants is a permanent lease. They contend that defendants were granted permission to make construction of a permanent nature on the said plot and this itself suggests that lease is perpetual lease. The defendants further contend that the said lease hold right was transferred by said Dosabhai Patel in favour of defendant No.2 Dayaram Saoji and defendant no.2 Dayaram's legal representatives have not been brought on record and therefore the suit has abated.

4. On these pleadings of the parties the learned Judge of the trial Court framed issues. He found that the lease has come to an end by efflux of time. It was not a permanent lease and the suit was not governed by the provisions of C.P. & Berar Letting of Houses and Rent Control Order. Holding so he passed a decree for possession. In appeal said findings were confirmed by the appellate Court, hence this Second Appeal.

5. Second Appeal was admitted on the following two substantial questions of law :

1] Whether the lease deed dated 16.12.1930 at Exh.100 and lease deed dated 27.07.1943 are coupled with grant as contemplated under Section 52 of the Indian Easement Act and is irrevocable under Section 60 of the Indian Easement Act ?

2] Whether the lease is perpetual one in the event of satisfying following conditions:

A] the lease is for permanent structure,

B] the absence of delivery clause of the land after the expiry of the lease period mentioned in the lease deed.

C] the lease is transferable.

D] there is no mention as to the structure after the expiry of the lease period i.e. removal of structure.

E] there is fixed rent for 30 years.

F] there is entry in the sale register of the plaintiff in respect of the lease land.

G] the leasee is in possession for very long period.

6. I have heard the learned counsel for the appellant and the respondents.

7. Although appeal is admitted on the above two substantial questions of law no argument was advanced on question no.1. I, therefore, take it that this ground is given up.

8. Learned counsel for the appellants urged that the defendant no.2 Dayaram died during pendency of the suit and his heirs were not brought on record and therefore the suit was not maintainable. This question was raised as one of the grounds of appeal. This Court did not find it necessary to admit the appeal on that count. As such the same ground cannot be urged now. Party no doubt has a right to urge any other ground which was not raised in the grounds of appeal and the Court can consider such a ground. But since such a ground was raised and the Court did not find it to be worth for admitting the same on the same grounds, the same cannot be agitated now. I, therefore, need not consider that ground at all. In the circumstances I need not consider the decision cited by Shri. Deo in a case reported in Raghuram Rao And Others Vs. Eric P. Mathias And Others, (2002)2 Supreme Court Cases 624 : [2002(2) ALL MR 962 (S.C.)].

9. The only ground that I need to consider is whether the lease is said to be perpetual one. Before that it would be necessary to narrate few admitted facts. Land in question belongs to the plaintiff/Municipal Council. It was for the first time let out to one Persian Ginning Factory from 15.05.1928 for a period of 15 years. This lease came to an end on 15.05.1943. This lease was given for establishing and running a Ginning and Pressing Factory. The second lease i.e. the lease in question was given to Dosabhai Patel on 27.07.1943 for a period of 30 years. The rent was Rs.200/- P.A. payable in advance every year. The lease was also for running Ginning and Pressing Factory.

10. This takes me to consider the question if the lease can be treated as a perpetual one ?

Shri. Deo learned counsel for the appellants submits that there are many circumstances including conditions in the lease which would suggest that it is a perpetual lease. He submits that the initial lease was for a period of 15 years and it was again renewed for the same purpose. The lease was for running a factory and bungalow was allowed to be constructed. He submits that the fact that structure of permanent nature was allowed to be constructed itself suggests that the lease is perpetual one. He invites my attention to condition No.3 which says that the leasee shall use the land for running a Ginning and Pressing Factory and may erect a bungalow for the said factory.

11. There is no doubt that the lease permits construction of bungalow and a Ginning and Pressing Factory. There is also no doubt that bungalow and factory could be called construction of permanent nature. Yet that would alone be not the determining factor. Law is well settled that the nature of the lease has to be decided by construing the terms of the lease itself. It is so held in Sivayogeswara Cotton Press, Devangere and Others Vs. M. Panchaksharappa and Another, AIR 1962 Supreme Court 413. In Bejoy Gopal Mukherji Vs. Praful Chandra Ghose, A.I.R. 1953 Supreme Court 153, Supreme Court held that mere possession for generations at uniform rate of rent, nor construction of permanent nature by itself is conclusive proof but cumulative effect of such fact coupled with several other facts may lead to inference of lease being permanent. Supreme Court in Sivayogesware Cotton Press i.e. AIR 1962 Supreme Court 413 approves the following observations of the Bombay High Court :

"The forms in which tenancy rights are created in India are not uniform and they do not conform to precedents known to conveyancing; sometimes the words used are not precise and it is not easy to understand from the said words the intention of the parties in executing the documents. Leases are often executed without legal assistance and the aid that the parties obtain from professional scribes does not always contribute to make the terms clear or precise. The nature of the tenancy created by any document must nevertheless be determined by construing the document as a whole. If the tenancy is for a building purpose, prima facie it maybe arguable that it is intended for the life time of the lessee or may in certain cases be even a permanent lease. Prima facie such a lease if not intended to be tenancy at will. But whether it is a tenancy for life or a permanent tenancy must ultimately depend upon the terms of the contract itself. And in construing the terms of such contracts the courts must look at the substance of the matter and decide what the parties really intended to do."

Most important factor that should weigh is that lease is for the period of fixed period of 30 years with no option for renewal at all. When a lease is of fixed period with no option for renewal no inference except that it was for a fixed period can be drawn. The right to construct bungalow was granted for the better management of the factory. The condition is very clear to that effect. The construction that is allowed to be made can only be said to be ancillary to the factory. If the parties intended to create permanent lease the lease period would not have been fixed at all. Further the defendants had written a letter to the plaintiff on 03.02.1973 that the lease is expiring and the lease be renewed. This letter itself further suggests that the defendants were aware that the lease was for a fixed period of 30 years and it was required to be renewed. Even in sale deed by which the present defendants purchased the suit property along with lease hold right from original leasee, it is clearly mentioned that the lease is for a term of 30 years with effect from 15.05.1943. These circumstances to my mind would suggest that the lease is not permanent. The Courts below have rightly held on the basis of evidence that lease is for period of 30 years. There is no reason to interfere with this finding.

12. The next question to be considered is whether notice of termination was necessary. The lease was for fixed period of 30 years. Lease came to an end by efflux of time in 1973. Notice under Section 106 of the Transfer of Property Act would in such cases be not necessary unless it is shown that the tenant was holding over. The suit cannot therefore be said to be bad for not issuing a notice of termination. In the circumstances, I find no substance in the appeal. The same is dismissed with costs. The defendants-appellants are in occupation of the premises for last more than 60 years. In the circumstances it would be desirable to grant one month's time to the appellants to vacate the suit premises.

Ordered accordingly.