[1] This appeal under Section 100 of the Civil Procedure Code is preferred by the appellant – original plaintiff against the judgment and order dated 09.09.1992 passed by the learned Assistant Judge, Bharuch in Regular Civil Appeal No.115 of 1989 whereby learned Appellate Judge has dismissed the the appeal and confirmed the judgment and decree passed by the learned trial Judge in Regular Civil Suit No.150 of 1987.
[2] The appellant had filed the aforesaid suit against the respondents for the recovery of the possession of the suit property. It was the case of the appellant in the suit that father of the appellant was tenant of the suit property, that he died in the year 1974 and the appellant became the tenant of the suit property, that along with the appellant, his brother and wife of his brother both were also residing in the suit property, but after the death of the father of the appellant, the wife of the elder brother of the appellant, who was defendant No.2 purchased the suit property, but neither the original owner nor the defendant No.2 informed the appellant about such purchase. However, the appellant, his elder brother and wife of his elder brother all continued to reside together in the suit premises. On 09.06.1987, when the appellant was at his shop, the respondents took out the household articles belongings to the appellant from the suit premise and took away the possession of the suit premises and, therefore, the suit came to be filed for recovery of the possession of the suit premises.
[3] The suit was resisted by the respondents mainly on the ground that the appellant had already shifted to another place before about six years and the respondents continued to be in possession of the suit premises and thereafter, in the year 1982, the respondent No.2 – original defendant No.2 had purchased the suit premises from the original owner and thus, they have continued in possession of the suit premises, that there was no question of termination of tenancy because the appellant had already left the suit premises as he had already acquired another premises and, therefore, the suit was also barred by law of limitation. On the basis of the evidence available on record, the learned trial Judge recorded the finding to the effect that the appellant had already left the suit premises and started residing in the property at Chauta Bazar, Surat city for last many years and the suit came to be filed after a period of more than 5 to 7 years. The learned trial Judge thus dismissed the suit by judgment and decree dated 27.10.1989.
[4] Being aggrieved by the judgment and decree passed by the learned trial Judge, the appellant preferred Regular Civil Appeal No.115 of 1989 in the Court of learned Assistant Judge, Bharuch. The learned Appellate Judge considered the documentary evidence available at Ex.31, 48 and evidence of two witnesses on the side of the appellant at Ex.65 and 66. On appreciation of the evidence, the learned Appellate Judge came to the conclusion that the appellant had already left the premises on 04.10.1989 as per the panchnama drawn in the suit which was filed against the appellant of the shop wherein the appellant had started residing after leaving the suit premises and also came to the conclusion that the appellant did not take any action from 1982 to 1987 and, therefore, cumulative effect of the evidence available on record could be only that the appellant had surrendered his tenancy right in favour of the respondents and, therefore, there was no need to interfere with the finding recorded by the learned trial Judge. Thus, on appreciation of the evidence, the learned Appellate Judge recorded the finding of fact that the appellant after having surrendered his tenancy right by leaving the premises to stay at another premises was not entitled to get any relief and, therefore, learned Appellate Judge dismissed the appeal vide judgment and order dated 09.09.1992. It is against this judgment and order, the appellant has filed this Second Appeal.
[5] The only substantial question of law framed for consideration of this Court while admitting the appeal is as under:-
“Can the tenancy right in a property orally be relinquished?”
[6] Learned advocate Mr.S. S. Belsare for the appellant submitted that though both the Courts below have recorded the findings that the appellant had left the premises, still the question would remain to be considered as to whether there was surrender of tenancy right in the eyes of law by the appellant. He submitted that simply because a tenant of a particular premises left the suit premises and started staying at another premise would not be a ground without there being any document of surrender of tenancy rights to believe that such tenant has surrendered his tenancy right. He submitted that the evidence on record has neither, at all, disclosed nor has proved that appellant had ever given in writing either to the original owner who was the landlord or even to the respondents who became the owner subsequently about surrendering his right as tenant. He submitted that if this being not the case and if the appellant had already examined two witnesses before the trial Court to prove his possession over the suit premises, the Courts below ought not to have recorded findings to the effect that the appellant had surrendered his tenancy rights. Learned advocate for the appellant further submitted that the suit was also within the time limit and both the Courts below have committed serious error in coming to the conclusion that the suit was filed after a period of limitation. He submitted that it was continuous cause of action for the appellant to protect his tenancy right. Learned advocate for the appellant pointed out that the aspect of delay for filing the suit was wrongly considered by both the Courts below, also by taking help of panchnama drawn in the proceedings filed against the appellant for another premises wherein he was found staying and his household articles were also found. Learned advocate for the appellant submitted that such document of panchnama for another suit could not be said to be evidence for the purpose of deciding the issue involved in the suit filed by the appellant. He, therefore, submitted that since there was no cogent evidence adduced by the respondents about surrender of tenancy right by the appellant, the judgment and decree passed by both the Courts below suffers from serious and substantial error of law and, the same are required to be quashed and set aside by exercising powers under Section 100 of the Civil Procedure Code.
[7] Nobody has appeared on behalf of the respondents.
[8] Having heard learned advocate for the appellant and having perused the Record & Proceedings available with the Court as well as copies of the judgment and decree passed by both the Courts below, I find that the Courts below have considered two important aspects on the basis of the documentary evidence available on record; one is that the appellant had left the premises on his own to occupy another premises wherefrom he was also doing his business by residing there. This fact came to be proved and supported by the panchnama drawn in the proceedings of Regular Civil Suit No.393 of 1991 which was at Ex.14 and it cannot be ignored that the said suit was filed against the appellant in respect of the premises occupied by the appellant after vacating the property in question and the panchnama which was drawn in the above said suit clearly reveals that the appellant was found residing in the premises which was subject matter of the above said suit. Coupled with this aspect of the matter, both the Courts also considered the conduct on the part of the appellant inasmuch as in 1981 after the appellant left the premises for more than six years, the appellant did not take any action. If the appellant had not surrendered his tenancy and had not vacated the suit premises, the appellant would have immediately as a prudent man filed the suit for the purpose of protecting his tenancy right. The Courts recorded the finding of fact that from 1982 to 1987, the appellant did not take any action.
[9] It is required to be noted that the respondents against whom the appellant preferred the suit are his elder brother and wife of the elder brother respectively. The suit is not against the original owner of whom the appellant and his elder brother both were tenant in the suit premises. The respondent No.2 purchased the suit premises in the year 1982 i.e. after the appellant left the suit premises. Therefore, when the suit premises was purchased by the respondents, the appellant was not there in the suit premises at all and had no grievance till 1987. This conduct on the part of the appellant would speak volumes about his taking action as regards his tenancy rights for the purpose of which the appellant was knowing very well. Therefore, the evidence on record as also the conduct of the appellant go to suggest that there was concious surrender of tenancy by the appellant. It is not necessary that the tenancy right can be surrendered only by giving writing to the landlord. If a tenant leaves premises absolutely with no intention to come back to the original premises and does not take any action for protecting his tenancy right for long time, for all purpose, such action of leaving the premises and not taking action for long time, though there was no writing executed by the appellant for surrender of the tenancy right, could be taken as surrender of the tenancy right. Therefore, in my view, there cannot be any absolute proposition that the tenancy right in the property could not be relinquished orally, it always depends upon the facts and circumstances of each case. Since, as discussed above, both the Courts have found from appreciation of the evidence that the appellant had already surrendered the tenancy rights by leaving the premises and by not taking action for long time, I do not find any error in such findings recorded by both the Courts below.
[10] In the result, the appeal is therefore devoid of any merits and the same is dismissed.
[11] Record & Proceedings be sent back to the concerned Trial Court, forthwith.
[ C. L. SONI, J. ] vijay