Maharashtra Rajya Veej Vitaran Company, through Executive Engineer and Another Vs. Manoj Abarao Deshmukh and Another - Court Judgment

Oral Judgment:

1. This appeal under Section 100 of the Code of Civil Procedure takes exception to the judgment passed by the first appellate Court dismissing the appeal preferred by the original defendants and affirming the decree passed by the trial Court directing the defendants to handover vacant possession of the suit property to the plaintiffs.

2. The plaintiffs are the owners of plot bearing No. 3/8 situated at Malkapur, district Buldhana. According to plaintiffs the suit property was leased out to the Malkapur Electric Supply Company on annual rent of Rs. 275/- for a period of 50 years from 10.04.1938. There were various terms and conditions agreed between the parties as per the said lease deed. With passage of time, Malkapur Electric Supply Company merged in Maharashtra State Electricity Board and continued in occupation of the premises. According to plaintiffs rent was paid upto 1984-85. The period of lease came to an end on 09.04.1988 after which there was no extension. By issuing notice under Section 106 of the Transfer of Property Act (for short the said Act) the tenancy came to be terminated and suit was filed for possession of the suit premises.

3. The defendants admitted the lease agreement. They however took the stand that they were not in arrears of rent and that the suit was barred by limitation.

4. The trial Court held that the plaintiffs had terminated the lease by issuing notice under Section 106 of the said Act. It further held that the suit as filed was within limitation as it was filed before expiry of 12 years from issuance of notice dated 23.12.1992. It, therefore, decreed the suit for possession and also directed the defendants to pay damages to the tune of Rs. 25,000/- per year till delivery of possession. The first appellate Court after reappreciating the evidence on record affirmed the findings recorded by the trial Court and maintained the decree for possession.

5. Shri S. V. Purohit, learned counsel appearing for the appellants submitted that the suit as filed was beyond the period of limitation. He submitted that the lease came to an end by efflux of time on 09.04.1988. In such situation there was no necessity of issuing any notice under Section 106 of the said Act. He submitted that in terms of provisions of Article 67 of the Limitation Act, 1963 the suit was required to be filed within a period of 12 years from 10.04.1988. As the suit was filed on 11.07.2003 the same was barred by limitation. He also submitted that there was no need to issue notice under Section 106 of the Act as the tenancy came to an end by efflux of time. In support of said submission learned counsel placed reliance on decisions of the Supreme Court in Shanti Devi Vs. Amal Kumar Banerjee AIR 1981 Supreme Court 1550 and Raptakos Brett and Co. Ltd. Vs. Ganesh Property (1998) 7 Supreme Court Cases 184.

6. Shri A. A. Naik, learned counsel appearing for the respondents opposed aforesaid submissions. He submitted that as the appellants continued in possession even after 09.04.1988, it was necessary to issue notice under Section 106 of the said Act. He submitted that even if the lease came to an end on 09.04.1988, the respondents were required to obtain permission of the Rent Controller under provisions of C. P. and Berar Letting of Premises and Rent Control Order, 1949. Said Rent Control Order was repealed and Maharashtra Rent Control Act came into force on 01.03.2000. Hence, according to the learned counsel the period of limitation would commence from 01.03.2000 and therefore the suit for possession was filed within limitation. In support of said submission reliance was placed on the decision of the Calcutta High Court in (Khatemey) Chhaikuddin Choudharty and another Vs. Ram Narayan Ghose and others AIR 1926 Calcutta 364(2). He further submitted that both the Courts had rightly held that the suit was filed within limitation and the second appeal as filed did not give rise to any substantial question of law.

On hearing the learned counsel the following substantial questions of law arise in the Second Appeal:

1] Whether it is necessary to issue notice under Section 106 of the said Act to a tenant at sufferance?

2] Whether the suit is filed within limitation as prescribed by Article 67 of the Limitation Act, 1963?

Hence, Admit on said substantial questions of law. Heard finally with the consent of learned counsel for the parties.

7. The factual aspects of the matter are not in dispute. The lease that was granted for a period of 50 years came to an end by efflux of time on 09.04.1988. The defendants had paid rent upto 198384 after which no rent was paid to the plaintiffs. On 23.12.1992 the plaintiffs had issued a notice to the defendants terminating the lease and had demanded possession of the suit property. Said notice was replied on 06.04.1994. Thereafter on 27.02.2002, another notice terminating the lease was issued and on 11.07.2003 present suit for possession came to be filed.

8. As the tenants discontinued paying rent even prior to 09.04.1988 when the lease came to an end by efflux of time, it cannot be said that after the period of lease, they continued as tenants holding over in terms of Section 116 of the said Act. The fact that the plaintiff had claimed arrears of rent from 1984-85 onwards itself indicates that rent was not paid for said period till 09.04.1988. Even for the subsequent period, no rent was paid. In Raptakos Brett (supra) the Supreme Court in para 13 has observed as under:

“13. In view of the aforesaid settled legal position, it must be held that on the expiry of the period of lease, the erstwhile lessee continues in possession because of the law of the land, namely that the original landlord cannot physically throw out such an erstwhile tenant by force. He must get his claim for possession adjudicated by a competent court as per the relevant provisions of law. The status of an erstwhile tenant has to be treated as a tenant at sufferance akin to a trespasser having no independent right to continue in possession.”

It is, therefore, clear that the status of the appellants was that of a tenant at sufferance. The legal position is well settled that where lease is for a definite term and it expires by efflux of time by virtue of provision of Section 111(a) of the said Act, there is no necessity of issuing notice under Section 106 of the said Act. Reference in that regard can be made to the decision in Shanti Devi (supra) relied upon by the learned counsel for the appellants. It is therefore clear that issuance of notice by the plaintiffs on 23.12.1992 and 27.02.2002 is of no legal consequence in as much as lease in question came to be determined by efflux of time on 10.04.1988. Accordingly, the first substantial question is answered by holding that there was no necessity of issuing any notice under Section 106 of the said Act to the defendants.

9. As regards the period of limitation, under Article 67 of the Limitation Act, 1963 suit for possession is required to be filed within a period of 12 years when the tenancy is determined. As observed herein above the tenancy came to be determined by efflux of time on 09.04.1988. It was, therefore, necessary to have filed the suit for possession within a period of 12 years from said date. The suit as filed on 11.07.2003 was therefore barred by limitation. Both the Courts have proceeded to adjudicate the aspect of limitation by taking into consideration the notice dated 27.02.2002 issued by the plaintiffs. As observed herein above, there was no legal requirement of issuing any notice under Section 106 of the said Act for determining the tenancy. Hence, both the Courts misdirected themselves while considering the issue of limitation.

10. As regards the decision relied upon by the learned counsel for the respondents in (Khatemay) Chhaikuddin (supra), it has been observed therein that if the landlord does not have an immediate right of reentry, any assertion by the tenant would not make time run against the landlord as the landlord cannot seek immediate redress. It has been further observed that the real circumstance which makes the law of limitation run against the landlord is that he is entitled for possession. The submission of the learned counsel for the respondents that by virtue of provisions of Rent Control Order the plaintiffs were precluded from determining the lease without obtaining due permission and hence the right to possession accrued on 01.03.2000 when the Maharashtra Rent Control Act, 1999 came into force therefore cannot be accepted. Though the right to determine the lease was available under the provisions of Clause 13(1)(b) of the Rent Control Order, the plaintiffs did not choose to take recourse to proceedings under the Rent Control Order. The right to possession accrued immediately after the lease was determined by efflux of time and hence it was necessary to have filed suit for possession within a period of 12 years from said date. It is, therefore, clear that the suit as filed was barred by limitation. The second substantial question of law stands answered accordingly.

11. In view of aforesaid observations the following order is passed:

The judgment passed by the first appellate Court in Regular Civil Appeal No. 42 of 2012 confirming the decree for possession passed in Regular Civil Suit No. 47 of 2003 on 27.07.2006 is set aside. The suit for possession as filed is held to be barred by limitation. It would be open for the plaintiffs to seek possession of the suit premises in accordance with law. It would also be open for the plaintiffs to seek damages for occupation of the suit premises from the defendants as permissible in law. It is clarified that amounts already paid by the defendants towards rent shall not be recovered from the plaintiffs. The Second Appeal is accordingly allowed with no order as to costs.