JUDGMENT N.K. Mehrotra, J.
1. This is second appeal against the judgment dated 19.4.1979 passed by IVth Additional District Judge, Lucknow in Regular Civil Appeal No. 130/1979: Ram Avtar v. Ram Kishore Seth and Ors. allowing the appeal and setting aside the judgment and decree dated 5.4.1977 passed by Munsif South, Lucknow in Regular Suit No. 784/68: Ram Kishore Seth v. Smt Godawari Devi.
2. In this appeal, I heard Shri S.K. Mehrotra, Advocate, for the defendant-appellant. In spite of the best efforts, the learned Counsel for the respondents did not appear to argue the appeal. Firstly, the matter was adjourned on the request of Shri B.K. Saxena, Advocate, Counsel for the respondents and then a notice was also sent to Shri B.K. Saxena, Advocate by the registry for 15.9.2004 when this appeal was listed for hearing. On 15.9.2004, also Shri B.K. Saxena did not appear. Therefore, the appeal was heard finally.
3. The case of the plaintiff-appellant is that Plot No. 120 measuring 2480 sq. ft. situated at Paliganj Ward, Hussainganj, Lucknow was let out to the late Shri Ramakant, husband of the respondent No. 2 Godawari Devi and father of the other respondents, on a monthly rent of Rs. 35/- for a period of four years in the year 1958 and this period of four years expired on 17.6.1962 and thereafter the defendants were tenant by holding over. The plaintiff-appellant determined the tenancy of the respondents on 29.2.1968 by serving a notice under Section 106 of the Transfer of Property Act. In spite of the service of notice, the defendants failed to vacate the land in suit. The plaintiff claimed Rs. 40.83 as rent and mesne profits for the period from 1.3.1968 to 5.4.1968 and Rs. 2 per day from 6.4.1968 to 14.10.1968 amounting to Rs. 384/-. In all, the plaintiff claimed the amount of Rs. 424.83/- alongwith the relief of ejectment.
4. The case of the defendants-respondents was that the plot in question was given to them on licence on a premium of Rs. 35/- per month for manufacturing purpose. It is alleged by the respondents that the father of the plaintiff-appellant took a registered agreement from the defendants in the name of the plaintiff by way of a licence allowing the defendants to make construction of a temporary nature for manufacturing purpose of breaking pulses for a period of four years on 19.6.1954. After the expiry of the period of four years on 19.6.1958, a fresh agreement was got executed. After the expiry of this period of four years, again in the year 1962, a fresh agreement came into existence and therefore, the defendants cannot be considered to be the tenant by holding over and since there is no breach of the conditions of the agreement, the defendants are not liable to be evicted.
5. The trial Court decreed the suit by holding that the defendants were essee of plots in question and not the licensee; that the defendants were tenants by holding over and were liable to ejectment; that the notice under Section 106 of the Transfer of Property Act was valid and there was no need of sending six months' notice; that the principles of estoppel does not apply; that the plaintiff was entitled to recover the amount of rent and mesne profits; that agreement in question was not the outcome of any misrepresentation or fraud; that there exists relationship of landlord and tenant between the parties and the plaintiff was entitled to the reliefs claimed.
6. The defendants preferred an appeal and the appellate Court held that lease in question was for manufacturing purpose of breaking pulses and it will be deemed to be a lease from year to year as provided under Section 106 of the Transfer of Property Act. A six months' notice for the determination of the tenancy of the defendants was necessary. It was also held that since six months' notice was not given, the notice was invalid. It was also held that the document which was required to be registered and which has not been registered, cannot be received in evidence as provided under Section 49 of the Registration Act. After recording these findings, the appellant was allowed and the suit was dismissed.
7. The plaintiff has preferred this second appeal and the following substantial question of law has been formulated:
"Whether the tenancy for the manufacturing purpose, which is tenancy on monthly rent as per agreement, can be determined only by a six months' notice under Section 106 of the Transfer of Property Act as held by the appellate Court. If not, whether notice under Section 106 of Transfer of Property Act is valid."
8. I have seen the record of the trial Court and the 1st Appellate Court. The record shows that the first agreement of lease was executed on 16.1.1954. It was for a period of four years. It was a registered document. After the expiry of this period of four years, another agreement of lease was executed on 17.6.1958. It was again for a period of four years. It was also registered. These two documents are Exhibit-5 and 6 on the record of the trial Court. Besides these two documents, there are receipts of monthly rent. Both the Courts below have recorded the findings that lease agreement was executed between the parties and the defendants were the tenants and there exists relationship of landlord and tenant between the parties. In the first agreement Exhibit-5, Clause (1) is as follows:
"That the lease will be for a period of four years commencing from 14.1.1954 on a monthly rent of Rs. 35/-.
9. The term of the second agreement expired in June, 1962. Admittedly, the defendants continued in possession as tenant on the disputed land. A perusal of the written statement of the defendants-respondents goes to show that the case of the defendants in Paragraph 9 of the written statement is that after expiry of four years period, Shri Dwarika Nath Seth constituting a Joint Hindu Family with his sons, permitted the answering defendants under a fresh agreement to execute work of permanent character for running a 'Dal and Teil' mill. The defendants acting as licensee, executed a work of permanent character and incurred heavy expenses in the execution of work. There is no such fresh written agreement on record. Whatever the agreements were there, they are Exhibit-5 and 6 which are the registered documents. Both the Courts below have rejected the theory of licence and recorded a finding that there was a relationship of landlord and tenant between the parties.
10. Learned trial Court has recorded a finding that the defendants are the tenant by holding over. The learned Appellate Court has referred Section, 116 of the Transfer of Property Act and has held that the defendants are continuing in possession after 16.6.1962 by holding over. Section 116 of the Transfer of Property Act is as, follows:
"116. Effect of holding over--If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106."
1. The phrase 'in the absence of an agreement to the contrary' used in Section 116 cited above, is very material.
12. Section 106(1) of the Transfer of Property Act is as follows:
"106 (1): In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee by fifteen days's notice."
13. The phrase 'in the absence of a contract or local law or usage to the contrary' is very material.
14. Now I come to the agreement between the parties. I have cited above, the relevant clauses of the lease agreement. The lease agreement goes to show that there was an agreement between the parties abut the payment of rent from month to month and the defendants were the tenant on a monthly rent of Rs. 35A. I may further refer Clause (c) of second lease agreement which is as follows:
"(c): That the lease has commenced from 16.1.1958 and shall run from month to month according to the English calendar year i.e. from 1st of each month and it is hereby agreed that the rent of each month shall be payable in advance regularly at the commencement of every month."
15. The aforesaid Clause (c) in the agreement makes it clear that it was a month to month tenancy as per the agreement between the parties.
16. In Smt. Ram Murti Devi v. Additional District Judge, Meerut and Ors., 1982 (2) Allahabad Rent Cases 403, this Court has held that 'though a tenancy may be for manufacturing purposes, the parties may agree that the tenancy would be from month to month, irrespective of the purpose of tenancy. Where there was an admission by the tenant that in regard to a manufacturing lease, monthly rent was payable, it would be a stronger case for holding that the tenancy was of monthly duration'. This Court has held that the mode of payment can be a ground for holding that a tenancy was a month to month tenancy. In the aforesaid case, this Court has referred the judgment of the Supreme Court in Ram Kumar v. Jagdish Chand, AIR 1952 SC 23, Binda Deen v. Smt. Ram Devi, 1968 ALJ 721. In this case, execution of the agreement between the parties is admitted. Therefore, it is established that there was an agreement between the parties to make the payment of rent on month to month basis. It is also established that it was a monthly tenancy under the agreement between the parties. Since both Sections 106 and 116 are subject to the agreement to the contrary between the parties and there is an agreement between the parties about the month to month tenancy, therefore, the finding recorded by the appellate Court that six month' notice was required in this case, is against the law and is to be set aside.
17. In view of the discussions above, I hold that even if the tenancy was for manufacturing purpose of breaking pulses, it is a monthly tenancy as per agreement between the parties and it can be determined only by a thirty days notice as is required in the case of monthly tenancy and the notice under Section 106 of the Transfer of Property Act is a valid notice in the instant case. The finding of the 1st Appellate Court about the invalidity of the notice, is quashed.
18. Second appeal is allowed. The impugned judgment dated 19.4.1979 passed by IVth Additional District Judge, Lucknow in Civil Appeal No. 130/77: Ram Avtar v. Ram Kishore and Ors., is set aside and the judgment of Munsif South, Lucknow is Regular Suit No. 784/68: Ram Kishore Seth v. Smt. Godawari Devi and Ors. is confirmed.