Virupakshaiah @ Veeraiah Vs. Shivaputrappa Basappa Golappanavar - Court Judgment

Excerpt:
transfer of property act, 1882 (central act no. 4 of 1882) - section 106 - lease not made by registered instrument : cannot be taken to be annual lease, but only monthly lease - 'manufacturing purpose': connotation - to be understood in popular sense as per dictionary meaning - mere running of printing press not process of manufacturing.; (i) under section 107 of the act, it has been provided that a lease of immoveabte property from year to year or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument. in view of this statutory provision, it was mandatory to execute a registered instrument if the tenancy was contemplated to be annual in nature. in the present case, since admittedly it was not made by a registered instrument, the lease cannot be taken to be an annual lease. therefore, necessarily it has to be taken as a monthly lease for the purpose of section 106 of the act.; (ii) the expression 'manufacturing purpose' as used in section 106 has to be understood in a popular sense in accordance with the meaning given in the dictionaries. according to the dictionary meaning, the word 'manufacture' implies a change. but every change is not manufacture. for identifying a given change in an article as manufacturing, there must be a transformation, a new and different article must emerge having distinctive name, character or use... mere running of a printing press cannot tantamount to an engagement in any process of manufacturing though the process of printing results in some change on the paper surface over which the printing is done. - order 6, rule 17: [a.n.venugopala gowda, j] karnataka public premises (eviction of unauthorised occupants) act, (32 of 1974), sections 2(e)(5),16 - application for amendment of written statement on account of amendment of section 2 of act registered wakf falls within definition of public premises and thereby bars jurisdiction of civil court under section 16 of the act to entertain suits relating to eviction of public premises order of civil court for eviction of appellant and awarding damages challenged in appeal - since act was amended during pendency of appeal it is necessary to determine tenability of suit for eviction of public premises before, civil court . no new facts sought to be introduced in written statement. application for amendment of written statement should be allowed. order 41, rule 33: [a.n.vengopala gowda,j] karnataka public premises eviction of unauthorised occupants act (32 of 1974), section 2 powers of appellate court -amendment of section 2 of the act during pendency of appeal effect held, amendment by way of substitution, deemed to have been always part of said act has retrospective effect and should be considered by appellate court. h. abdul rasheed v madras-e-araba [r.s.a.no. 678/2003, dd 16.10.2008]. - 200/-.it has also been found on facts that the defendants are using the demised premises for dwelling as well as for running of a printing press. so far as this part of the contention is concerned it has been found as a matter of fact that the premises is being used by the defendants for dwelling of their family members as well as for running a printing press. therefore, the said expression cannot be construed keeping in view the special definition set out to those expressions in special statutes like factories act as sought to be put forth by the learned counsel for the defendant. a lease of premises for mixed or multipurpose like dwelling purposes and for setting up a printing press and for ordinary business purpose, is not a lease for 'manufacturing purpose' within the meaning of section 106 but is within the meaning of the words for 'any other purpose' used in that section.bharuka, j1. the present appeal arises out of an ejectment suit. the defendant having lost in both the courts below, has preferred this second appeal.2. the suit property had been acquired by the plaintiff pursuant to a decree for specific performance dated 16.8.1959 in o.s.no. 15/1975 subject to the tenancy rights of the defendant. the plaintiff served a notice on the defendant on 31.5.1980 terminating the tenancy and seeking possession by the midnight of 30.6.1980. the factum of tenancy is not in dispute. it is also admitted that the defendant had been paying an annual rent of rs. 200/-. it has also been found on facts that the defendants are using the demised premises for dwelling as well as for running of a printing press. defendant resisted the ejectment on the ground that the premises in question was being used for manufacturing purpose and as such, serving of six months' notice was mandatory in view of section 106 of the transfer of property act, 1882 (in short the act). but such notice not having been served, no decree for ejectment as claimed could have been granted. both the courts below, on consideration of the pleadings of the parties and evidence brought on record, came to the conclusion that on the facts of the present case, the tenancy being of month to month and not for manufacturing purpose, the notice as served was sufficient. accordingly, the suit for ejectment was decreed.3. this appeal was admitted for considering the following substantial question of law:-'whether the defendant was a monthly tenant and whether the notice issued by the plaintiff under section 106 of the transfer of property act is valid in law in the facts and circumstances of the case?'4. learned counsel for the defendant submits that since in the plaint itself it has been admitted by the plaintiff that the tenancy is annual in nature, it was not competent on the part of the courts below to record a contrary finding. in support of his submission, he relies on para 2 of the plaint. the relevant portion thereof reads as follows:-'the defendant set up an annual tenancy on a rental of rs. 200/-in collusion with the original owner. the plaintiff had fifed a suit o.s.no. 15/75 on the file of civil judge, bagalkot for specific performance of agreement and obtained a decree on 16.8.1979 in that suit against the owner subject to the tenancy rights of the defendant since the owner had set up the defendant as the tenant in occupation.'this submission has been denied by the learned counsel for the plaintiff by relying on section 107 of the act as also the facts stated in the said paragraph of the plaint termed as admission by the defendant.5. under section 107 of the act, it has been provided that a lease of immovable property from year to year or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. in view of this statutory provision, it was mandatory to execute a registered instrument if the tenancy was contemplated to be annual in nature. in the present case, since admittedly it was not made by a registered instrument, the lease cannot be taken to be an annual lease, therefore, necessarily it has to be taken as a monthly lease for the purpose of section 106 of the act.6. coming to the alleged admission of the plaintiff in the plaint as noticed above, what has been stated by the plaintiff is that the defendant had set up an annual tenancy in collusion with the original owner. therefore, the plaintiff instead of admitting any annual tenancy having been granted to the defendant has made an allegation that such a plea of tenancy had been set up by the defendant in collusion with the original owner, against whom the plaintiff had to file a suit for specific performance of agreement of sale of the present premises. even otherwise, as rightly pointed out on behalf of the plaintiff, the reading of the relevant part of paragraph 2 of the plaint, as quoted above, cannot tantamount to any admission. accordingly, it is held that the tenancy in question was a month to month tenancy.7. the second plea raised on behalf of the defendants is that since the premises was being used also for running a printing press, the tenancy should be deemed to be for manufacturing purpose. so far as this part of the contention is concerned it has been found as a matter of fact that the premises is being used by the defendants for dwelling of their family members as well as for running a printing press. therefore, the user of the premises is composite in nature. no evidence has been led on behalf of the defendants to show as to for what purpose, the premises was taken on lease at its inception. the evidence is only with regard to its user at the time of leading of the oral evidence,8. in the case of allenbury engineers pvt. ltd. v. shri ram krishna dalmia : [1973]2scr257 , their lordships were pleased to observe as under;'the expression 'manufacturing purposes' in section 106 is used in its popular and dictionary meaning, the transfer of property act not having supplied any dictionary of its own for that expression. the burden of proving that the lease was for manufacturing purposes, must for the purpose of section 106 of the transfer of property act, lie on the party who claims it to be so, in the present case, the appellant-company. that burden is to establish that the exclusive or at least the dominant purpose of the lease was the manufacturing purpose (see c. mackertich v. steuart and co. ltd. : (1972)illj99sc ).the word 'manufacture' according to its dictionary meaning, is the making of articles or material (now on a large scale) by physical labour or mechanical power. (shorter oxford english dictionary vol.i.1203). according to the permanent edition of words and phrases vol.26 'manufacture' implies change but every change is not manufacture and yet every change in an article is the result of treatment, labour and manipulation. but something more is necessary and there must be transformation, a new and different article must emerge having distinctive name, character or use.'from the same dictum of the supreme court, two things are apparent viz., the expression 'manufacturing purpose' as used in section 106 has to be understood in a popular sense in accordance with the meaning given in the dictionaries. therefore, the said expression cannot be construed keeping in view the special definition set out to those expressions in special statutes like factories act as sought to be put forth by the learned counsel for the defendant. according to the dictionary meaning, the word 'manufacture' implies a change. but every change is not manufacture. for identifying a given change in an article as manufacturing, there must be a transformation, a new and different article must emerge having distinctive name, character or use.9. keeping in view the facts of the present case, mere running of a printing press cannot tantamount to an engagement in any process of manufacturing though the process of printing results in some change on the paper surface over which the printing is done.10. in similar circumstances, the rajasthan high court in the case of kunj behari v. acharya hari and anr. , has held thus:'a lease of premises for mixed or multipurpose like dwelling purposes and for setting up a printing press and for ordinary business purpose, is not a lease for 'manufacturing purpose' within the meaning of section 106 but is within the meaning of the words for 'any other purpose' used in that section.'11. for the said reasons, in my opinion, it has to be held that on the facts of the present case, the tenancy being of month to month and for non-manufacturing purposes, the notice as served in the present case was in due compliance with the provisions of section 106 of the act.12. accordingly, i find no merits in the appeal and is therefore, dismissed with costs.