Abdulahed Moulvi Abdulsamad and ors Vs Gulamahmed Gulamnabi Bardoliwala and ors - Citation 736622 - Court Judgment

Judgment:
ORDER

1. This revision application is directed against the judgment and decree of the learned Assistant Judge, Surat dismissing regular civil appeal No. 5 of 1967 with costs.

2. The petitioners in the instant case -are the original plaintiffs while the opponents are the original defendants. I will, therefore, refer to the parties as plaintiffs and defendants for the sake of convenience so far as this revision application is concerned.

3. The facts giving rise to this revision application briefly stated are that the plaintiffs own open land enclosed by a compound wall admeasuring 969 sq. yds. bearing Nondh No. 2033 in ward No, 12 at Surat, The suit property was originally let out to me Gulamnabi Vajirbhal Bardoliwal.a. who was the father of defendants Nos. 1 to 10 and 12 and the husband of defendant No, 11. at the monthly rent of Rs.40. A rent note was executed on behalf of Gulamnabi by defendant No. 3. The suit land was taken on rent for the purpose of manufacturing cotton chords or cotton strings from cotton yarn. According to the plaintiffs, Gulamnabi was prohibited from making any construction thereon or using the said Property for any purpose other than the purpose of manufacturing cotton chords, However, Gulemnabi constructed a hut thereon and after stopping the. business of cotton yam, busimess of selling fuel wood was started by him and sometime the property was also used for the Purpose of Poultry farm. According to the plaintiffs. the defendants were bound by the terms and, conditions of the rent note and that as they had contravened some of the terms of the rent note by erecting structures thereon and by using the property for a purpose other than that for which it was let and also by sub-letting the Property, the plaintiff had become entitled to recover possession from the defendants. The plaintiffs, therefore, served the defendants Nos. 1 to 11 with a notice asking them to hand over Possession. As the defendants failed to do so, the plaintiffs filed the suit to recover possession on the ground that the suit property was sub-let by the defendants and that they had contravened the terms of the tenancy. The plaintiffs also stated that they required the suit land bona fide and reasonably for the purpose of their business. 'The defendants by their written. statements, Exs. 12, 13 and 16 denied various averments made in the Plaint, They denied that any rent note was executed by Gulainnabi on 14-6-1951 as alleged by the plaintiffs. They elso denied that the suit land was taken on rent for the purpose of manufacturing cotton chords only. They alleged that the said rent note was bogus and therefore. the defendants were not bound by the terms ,and conditions thereof, They. further, contended that the suit for eviction was not maintainable as no notice was served upon defendant No. 12 who was one of the heirs of Gulamnabi, They denied that they had sub-let the suit premises to different persons or that they had started the business of selling fuel wood or that it was used for a poultry farm. They contended that Gulamnabi had taken the suit land for the purpose of erecting structures thereon and the structures were to be so erected for the Purpose of doing business. They further contended that in the beginning they did the business of manufacturing cotton chords and subsequently for the last several years they were doing the business of selling fuel wood in the suit land and that the plaintiffs and their father were aware of the same. In fact. they had taken permission of the Plaintiffs' father for starting such business. They, therefore, denied that they had violated the terms of the rent note as alleged.

4. From the pleadings of the Duties, the learned trial Judge framed issues at Ex, 17, He held that deceased Gulamnab! had got the rent note executed through his son defendant No. 3, on 14-619 51 as alleged. He also held that Gulamnabi and after is, his Heirs were bound -by the terms and, conditions of the Ant note. He held that the suit land was used by the defendants for the purpose of doing business of fuel wood and thereby they had contravened the terms and conditions of the rent note. He also held that the defendants had unauthorisedly raised structures on the suit land in violation of the terms of the rent note. The learned trial Judge, however held that the defendants were the contractual tenants of the suit land and as no notice for eviction was served on defendant No. 12, the said notice served up other defendants was not sufficient to terminate the joint tenancy of the defendants. He negatived the allegation of the plaintiffs that the defendants had sub-let certain Portion of the suit land. He also negative the -plaintiffs' submission that they required the possession of the suit land for their personal occupation. He also negatived the contention of the plaintiffs that the acts of waste were committed by the defendants. He, however, did not pass a decree for eviction in favour of the Plaintiffs on the ground that no notice was given to defendant No. 12. He, therefore, dismissed the suit with costs. Against the said judgment and decree, an appeal was preferred in the District Court, Surat which was heard by the learned Assistant Judge. At the time of the hearing, it was further urged by the defendants that the -plaintiffs were not- entitled to get Possession as their suit was barred by acquiescence. The learned Judge agreed with the findings recorded by the learned trial Judge and also held that the plaintiffs' suit was barred by acquiescence. He also held that the terms and conditions contained in the rent note Ex. 72 seemed to have been substituted by the terms and conditions incorporated in the receipt, Ex. 87 and hence the present suit could, not be governed by the terms and conditions of the rent note Ex. 72. He, therefore, dismissed the appeal. Against the said judgment and decree of the learned Assistant Judge, the original plaintiffs have preferred the present revision application.

5. Mr. K. S, Nanavatv, learned Advocate for the petitioners raised the following Points-

1. As Gulamnabi was inducted upon the land under the rent note, Ex. 72, Gularrinabi and after his demise the present defendants were bound by the terms and conditions of the said rent note and as they had committed a breach of the said terms and conditions as contained in Ex. 72, the plaintiffs were entitled to a decree for eviction.

2. The learned Assistant Judge erred in law in coming to the conclusion that a fresh contract of tenancy on terms and conditions different from those contained in Ex. 72 came into existence by reason of Ex. 87.

3. The learned Assistant Judge had erred in law in holding that the Plaintiffs' suit was barred by acquiescence.

In support of his submissions, Mr. Nanavaty urged that under the provisions of the Transfer of Property Act, if the lease was for a period of one year or less, it was not necessary to execute it by a registered document signed by the lessor and the lessee -as contemplate d in Section 107 of the said Act. In the instant case, he urged that the lease was for a period of one year. Therefore, it was not necessary to execute the said lease by any instrument whatsoever. Such a lease could be made even orally. Mr. Nanavaty invited my attention to the evidence of plaintiff No. A wherein he had categorically stated that the terms of the lease were agreed upon 8 days prior to the execution of the rent note by Gulamnabi and therefore, even assuming for the sake of argument that the rent note executed by Gulamnabi did not create any interest in the and, as there was no transfer of interest of the lessor in the absence of execution of any deed by him. even then, if the lessor had orally agreed to give the suit -property on lease and if in pursuance of the said agreement, the defendants in fact entered into possession of the land and Gulamnabi executed a rent note, the terms and conditions mentioned in the rent note would be binding on the defendants. He, therefore, urged that if the rent note clearly stated that the property was to be used only for the purpose of manufacturing cotton chords and that it shall not be used for any other purpose, the defendants were bound by the terms and conditions thereof and if they contravened any terms of the said rent note, the plaintiffs were entitled to recover possession as contemplated in Section 13(1)(a) of the Rent Control Act. He further urged that once it is found that the defendants had not complied with the terms of the tenancy, the defendants would lose the protection of the Rent Control Act and the -plaintiffs would be entitled to a decree under the general law. Mr. Nanavaty made a grievance that even though there was no issue about acquiescence. the learned Judge had wrongfully permitted the defendants to argue this point orally and decided it ,against them. He submitted that it was not the case of the defendants in their evidence before the court that the -plaintiff had Permitted them to use the property for a purpose other than what was mentioned in the rent note Ex. 72. He also urged that the lower court was in error in holding that the terms and conditions in the rent note Ex. 72 were substituted by the terms end conditions of receipt Ex. 87 and that as a result thereof, a fresh tenancy had come into existence. Mr. kanavaty, therefore, urged that in case from the evidence on record, this court was inclined to consider the question about the acquiescence or fresh tenancy having come into existence as a re suit of Ex. 87, the matter should be remanded to the learned Assistant- Judge for deciding this case after framing issues and after permitting the parties to lead .additional evidence therein.

6. Miss V. P. Shah, learned Advocate appearing for Mr. N. R. Oza, for the opponents-defendants. on the other hand, urged that under Section 105 read with Section 107 of the Transfer of Property Act, a valid lease could only be created by a lessor. The lessor was not the owner of the property and the interest in the property could not be transferred by unilateral act of a lessee by executing a Kabulivat or rent note in favour of the lessor. She submitted that after the amendment made in Section 107 of the Transfer of Property Act in 1929, an instrument of lease must be executed by both lessor and lessee and if such an instrument was not executed by both of them, the rent note executed by the lessee alone would not be a valid lease and therefore no interest would pass to the lessee under the said rent note. In such a case, Miss Shah urged that, it would not be open to the court to refer to the terms and conditions of the rent note particularly for the purpose of finding out the duration of the lease. Thus, if the court could not go into the question of duration of the lease by reference to the terms and conditions contained in the rent note, Ex. 72, the court could only spell out the duration of the lease by reference to Section 106 of the Transfer of Property Act. In that case, Miss Shah urged that, as the property was used for the purpose of manufacturing cotton chords, an annual lease could be presumed and in that case, the defendants would be entitled to six months' notice and one month's notice. She submitted that the defendants who had entered into the property under the contract would be deemed to be tenants by holding over and in that case, the notice given to defendants Nos. 1 to 11 only could not be said to be a valid notice as no notice was served on defendant No. 12. She urged that it was a joint tenancy in favour of all the heirs of Gulamnabi -and therefore if a notice is not given to defendant No. 12A who was also one of the heirs, the whole suit was liable to be dismissed. She, therefore, urged that both the courts were right in negativing the plaintiffs' claim. She also supported the decree of the learned Assistant Judge on the ground of acquiescence and fresh terms of tenancy having come into existence. She invited my attention to the written state merit wherein it was clearly stated that to the knowledge of the Plaintiffs and by express permission, the defendants were using the property for the purpose of their fuel wood business. Under the circumstance, Miss Shah urged that 'he plaintiffs' suit would be barred by acquiescence also.

7. In order to appreciate the rival contentions of the parties, it will be worthwhile first to refer to the evidence of the Plaintiffs. The say of the plaintiffs was that the suit land was given on lease to the defendants for a period of one year under the rent note Ex. 72. The evidence of plaintiff No. 4 Abdul Rashid Ex. 71 shows that his father was the original owner of the suit property. It was let out on hire during his lifetime to Gulamnabi Vajirbhai Bardoliwala. He' was present with his father when the negotiation took place regarding letting out. The negotiation took place between Gulamnabi and defendant No. 3. The terms of tenancy were settled between Gulamnabi and defendant No. 3 on one hand and his father and himself on the other hand. The stamp for making the rent note was brought by Abdul Rahim, the brother of Gulamnabi and they got the rent note prepared thereon. It was prepared on the terms agreed by them. The execution of the rent note was at his house where he was present. In crossexamination. also, he has clearly stated that he was present when the terms were settled and the rent note was executed. His father, Gulamnabi, defendant No. 3 and he, were the only persons Present at that time. The terms of tenancy were settled about 8 days before the rent note was executed. All the terms of tenancy were settled and draft was prepared. It was prepared in the hands of his father. It may be noted that during the very long and searching cross-examination of this witness, nothing has been brought out to suggest that the terms and conditions of the rent note were not previously agreed upon between the parties as stated by him, prior to the execution of the rent note Ex. 72. No doubt, it was suggested to him that there was no condition to the effect that no structure should' be made upon the land and that no business other than that mentioned in the rent note would be done in the suit premises. It was also suggested to him that the suit premises were let for the purpose of business only and that it was not let for a specific purpose of manufacturing cotton chords. Both these suggestions were denied by plaintiff No. 4. From the evidence on record, execution of the rent note Ex. 72 is relied upon by both the courts below. There is no controversy about it now. The learned Advocate for the opponents has not challenged the execution of the said rent note before me. For the purpose of this revision application therefore. I will assume that the rent note Ex. 72 is genuine and that it was got executed by Gulaninabi through defendant No. 3. The question, therefore, which would arise for my consideration is whether the rent note, Ex. 72 by itself created a valid lease. In other words, whether the rent note Ex. 72 created any interest in the Property in favour of the lessee without the lessor having joined in the said document? 'Lease' is defined in Section 105 of the Transfer of Property Act. It says-

'A lease of immovable property is a transfer of a right to enjoy such property made for a certain time, express or Implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value to be rendered Periodically or on specified occasions to the transferor by the transferee who accepts the transfer on such terms.

The transferor is called the lessor, the transferee is called the lessee, the price is called the premium and the money, share, service or other thing to be so rendered is called the rent.'

Section 107 of the said Act says-

'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.

All other leases of immovable -property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.

Where a lease of immovable property is made by a registered instrument such in tegument or, where there are more instance than one, each such instrument shall be executed by both the lessor and the lessee:'

Thus, reading Sections 105 and 107 together, it is clear that if a lease of an immovable property from year to year or, for any term exceeding one year or reserving a yearly rent is to be made, it can only be made by a registered instrument executed by both the lessor and lessee. All other leases of immovable property can be made either by a registered instrument or by oral agreement accompanied by delivery of -Possession- If other lease of immovable property is made by a registered instrument, then it should be executed by both the lessor and lessee The combined effect of these sections is that a lease of immovable property which is for a period of one year or less, that is if a lease does not exceed the period of one year. it could be executed by oral agreement accompanied by delivery of -possession. The evidence of plaintiff No. 1 referred to above shows that the agreement of lease regarding the suit property was made between his father and deceased Gulamnabi. The terms were settled about 8 days prior to the execution of the rent note . Ex. 72. The evidence shows that possession of the suit property was handed over to Gulamnabi under the agreement of lease entered into between them. It was nobody's case in both the courts below that initially the lease was for a term exceeding me year. Under the circumstances, if the. lease was not for a term exceeding one year, or if the lease was not to be from year to year or yearly rent was not to be recovered. Section 107 of the Transfer of Property Act could not come into Play at all. A lease other than the lease of immovable property mentioned above could be made by an oral agreement accompanied by delivery of possession. It cannot, therefore, be said that the lease in question in the instant case was not a valid lease. It is not the case of the plaintiffs that the -agreement of lease came into existence for the first time by execution of the rent note Ex. 72 by the lessee. Even if the rent note is executed by the lessee giving rise to the lease of immovable property for a period of one year or less and if it is not registered, law does not require that it should be executed by both the lessor and lessee. Only when a property is leased for a period exceeding me year or where annual rent is reserved or, where the property is leased from year, to year, it is incumbent to execute a registered instrument of lease signed by both the lessor and lessee. The other leases of immovable property may be made by a registered instrument. But if it is not made by a registered instrument but if there is an oral agreement accompanied by delivery of possession or if the lease is evidenced by a document of rent executed by the lessee only, which is not registered, in such a case, in my opinion. S. 107 of the Transfer of Property Act does not apply and a reference to the rent note executed by the lessee could be made. it may be that a mere unilateral act of the lessee executing a rent note by itself, may not create any interest in favour of the lessee and no valid lease could be said to have come into existence. But if Pursuant to the rent note executed by the lessee, he is put in possession of the land by the lessor, there will be a valid transfer of interest in his favour and it could be said that a valid lease was made by the lessor in favour of the lessee.

8. Miss Shah referred to the case of Ram Kumar Das v. Jagdish Chandra Deo, : [1952]1SCR269 . On the facts to which I will -presently refer. the Supreme 'Court held that-

'the tenancy created by implication of law in favour of the defendant should be held to be from month to month since its inception in 1924. The tenancy not being for manufacturing or agricultural purposes it could be regarded as a tenancy from month to month under Section 106 unless there was a. contract to the contrary. The stipulation as to payment of annual rent would no doubt raise a presumption that the tenancy was from year to year but being contained in an inoperative document could not come in the way of raising a presumption under Section 106. A lease for one year certain could not be inferred from the payment of annual rent because to do so would be to substitute a new agreement for the parties which they never intended to do.'

The facts before the Supreme Court were as under:-

'The defendant executed a registered kabuliyat dated 8-12-1924 in favour of the Receiver who was in charge of the plaintiff's estate by which he purported to take a settlement of land in suit for building purposes for a period of 10 years at an annual rent. The first payment of annual rent wag made on B-3-1925 and the second payment was made on 16-31926. Since then no further payments were made. The kabulivat not being an operative document under Section 107, T. P. Act, the question was whether the tenancy created by implication of law was a monthly tenancy under Section 106, T. P. Act.'

In the light of these facts, the Supreme Court has held as mentioned above. In fact, the Supreme Court did not make any observations regarding the question whether a registered instrument signed by the landlord was necessary to create a valid lease for ten years. At page 26, it was observed as under:-

'So far as the first point is concerned the courts below have proceeded on the view that a registered instrument signed by the landlord was necessary to create a valid lease for ten years. That view was not questioned before us and we express no opinion on this point. Proceeding, therefore, on the assumption that even though the parties might have intended to create a lease for 10 years, no operative lease came into existence, the only facts admitted are that the defendants remained in possession of the land belonging to the plaintiff with the -permission of the Receiver who represented the plaintiff's estate, and paid rent to the latter. From these facts a tenancy could be fairly presumed and the point for determination is, what was the duration of the tenancy that was created in the -present case?'

After considering the implication of Section 106 of the Transfer of Property Act, it was further observed-

'It is not disputed that the contract to the contrary, as contemplated by Section 106, T. P. Act, need not be an express contract; it may be implied, but it certainly should be a valid contract. If it is no contract in law, the section will be operative and regulate the duration of the lease. It has no doubt been recognize in several cases that the mode in which a rent is expressed to be Payable affords a presumption that the tenancy is of a character corresponding thereto. Consequently, when the rent reserved is an annual rent, the presumption would arise that the tenancy was an annual tenancy unless there is something to rebut the presumption. But the difficulty in applying this rule to the present case arises from the fact that a tenancy from year to year or reserving a yearly rent can be made only by registered instrument, as laid down in Section 107, T. P. Act. The kabuliyat in the case before us is undoubtedly a registered instrument but ex concesis it is not an operative docu-. ment at all and cannot consequently fulfil the requirements of S. 107, T. P. Act.''

It will thus be seen that the Supreme Court considered the Kabuliyat in questions inoperative in law and no~ a valid document because it was a Kabuliyat executed by the lessee only in which the duration of the lease was for a period of 10 years. Such a lease could only be created by a registered instrument executed by the lessor and lessee as contemplated in Section 107 of the Transfer of Property Act. Thus, even though the Kabuliyat in question was registered, as it was not executed by the lessor, the Supreme Court was of the view that it was hit by Section 107 and therefore, it was not operative. In other words, it was not a valid lease. Therefore, the Supreme Court in order to consider the nature of the lease which had come into existence as a result of the lessee being found in possession of the land and the rent being accepted by the respondent, relied upon the provisions of Section 106 of the Transfer of Property Act, and held that the tenancy was from month to month. In my opinion, therefore, this case could not help the opponents at all. In the case before us, the tenancy was for a Period of one year only. Such a lease of immovable property was not required to be made by a registered instrument signed by both the lessor and lessee. Such a lease could be made by an oral agreement accompanied by delivery of possession. In the instant case, the evidence of plaintiff No. 4 clearly shows that 8 days prior to the execution of the rent note, Ex. 72, the terms of the lease were orally agreed upon by the father of Plaintiff No, 4 and by Gulamnabi and defendant No. 3. In such a case, if an oral agreement was accompanied by delivery of possession in favour of the lessee, a valid lease could easily be inferred. In such a case, in order .to ascertain what were the terms of the lease orally agreed upon between the trties. the rent note executed by the ilessee could be considered as a corroboIrative Piece of evidence. The said rent in not being registered is not hit by S. 107 of the Transfer of Property Act. In the case of Ram Nath v. Neta, : AIR1962All604 , it was observed-

'But I do not find anything in any of the decisions cited by the learned counsel for the respondent to suggest that a qabuliat cannot be looked into as corroborative evidence of a lease for a Period of less than a year. Such a lease is permitted by Section 107 to be made by oral agreement, and it does not violate the principle of Transfer of Property Act or the Evidence Act to look into a qabuliat as corroborative evidence of an oral lease which is otherwise in accordance with law.'

Miss Shah, however, referred to the case of Bastacolla Colliery Co. Ltd. v. Bandhu Beldar, : AIR1960Pat344 , wherein the Full Bench of the Patna High Court observed that-

'Kabuliyat executed by the lessee cannot be looked into as evidence of showing that the lessee asserted at any time that he was a permanent tenant because the kabuliyat cannot be treated as embodying any contract between the parties. The mere assertion in the kabuliyat by the alleged lessee is not of much consequence because the alleged lessor cannot be saddled with knowledge of such section.. The tenancy by payment and acceptance of rent comes into existence afterwards, and the assertion of a claim to hold as a Perm-anent tenant must be range openly and to the knowledge of the landlord as a continuous course of conduct from the very time of his entry into possession before it can be held that the teriant has acquired the limited right of a permanent tenant by adverse -possession or that the landlord's right to recover is barred by limitation. While, therefore, the statement made by the lessee in the kabulivats in question, relating to the duration of the lease may be taken into consideration merely as his assertion, his subsequent conduct and assertions must be looked into in order to find out whether he has discharged the onus of proving that he prescribed for permanent tenancy.'

There can be no controversy about the principle laid down by the Patna High Court in the case referred to above and with respect, I am in agreement therewith. But even as observed by the Patna High Court, the court could look into the kabulivat executed by the lessee in order to find out what was his assertion therein. Even in that case before the Patna High Court, the kabuliv.at was held to be invalid because from that kabuliyat, the parties wanted to assert a permanent lease. Now as already observed earlier the lease of immovable Pipoperty for period exceeding one year could only be created by a registered instrument signed by the lessor and lessee as provided in Section 107, T. P. Act. Thus, if under a kabuliyat executed by the lessee, the lessee came out with a case that he was a permanent tenant, such kabulivat could not create a valid transfer in his favour as a permanent tenant. But that does not mean that the court could not consider the question regarding the period or duration of the lease mentioned in the said rent note, particularly when the period of lease was for a year or not less than one year. Similarly, the case of Taj Din v. Abdul Rahim, AIR 1939 Lah 423 relied upon by Miss Shah cannot help her at all. In that case, it was observed-

'The essential feature of a lease is that it is transfer of a right to enjoy immovable property. It would therefore follow that the transfer can only be made by the person who owns the interest to be transferred. A rent deed which is executed by the transferee of the interest to be conveyed by the lease and reciting that the transferee had taken the premises from the transferor and the transferee merely agrees by the terms of the deed to -pay a certain rent for a certain period cannot be considered to be a 'lease' within the definition given in Section 105, T. P. Act. Hence, it would not as a rent deed for less than a year require registration under the Registration Act. It would consequently be admissible in evidence, though unregistered.'

It was further observed that-

'Where oral lease accompanied by possession has been established the deed of rent can be used as a corroborative piece of evidence to support the terms of the lease.'

I fail to understand how this case would help the opponents at all. This case on the contrary clearly supported the view which I take that where an oral agreement accompanied by delivery of possession is established, the deed of rent could be used as a corroborative piece of evidence to support the terms of the lease. In fact, this view is in harmony with the view taken by the Allahabad High Court in the case of Ram Nath, : AIR1962All604 (supra). This case was referred to by the Full Bench of the Lahore High Court in the case of Mohan Lal v. Ganda Singh, AIR 1943 Lah 127 (FB), wherein it was held that-

'A rent deed (not compulsorily registrable under the Registration Act) executed by a tenant in favour of a landlord, if not registered, can be relied upon to establish the relationship existing between the parties. For, it contains an admission or an acknowledgment by the person attempted to be made liable and should be the very best evidence that me can possibly have as to the oral agreement of a lease and a court is not prevented from looking into it for this purpose.'

9. Miss Shah next relied on the case of Ramsing Harising v. Bai Dyanba, AIR 19,25 Born 512, wherein it was observed-

'The mere execution of rent note, unaccompanied by transfer of possession does not transfer interest in the property.'

There can be no quarrel with the principle enunciated therein and with respect, I am in agreement therewith. Section 107 of the T. P. Act says that 'All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession'. Thus, if the oral agreement is not accompanied by delivery of possession, a mere rent note executed by a tenant would not confer any interest in him. But in the instant case the matter does not rest with the execution of the rent note only. The evidence shows that there was -an oral agreement between the parties under which the terms of lease were settled. Thereafter rent note ex. 72 was executed by the tenant. The tenant is already put in possession of the land. The tenant has been regularly paying rent which has been accepted by the landlord. Under the circumstances, it is difficult to agree with the submission made by Miss Shah that there was no valid lease in the instant case and that the rent note ex. 72 could not be taken into consideration for the purpose of finding out the duration of the lease or other terms contained therein. Miss Shah lastly relied on two unreported decisions of this court. In Civil Revn. Appln. No. 203 of 1967, decided on 19-9-1967 (Gui.), J. B. Mehta, J. after considering the effect of Section 107. T. P. Act, and particularly the effect of the amendment made therein in 1929, observed as under:-

'The effect of this amendment is clearly to settle the conflict of decisions as to whether the rent note signed by the lessee is a lease at all. Such a rent note which is signed only by the lessee could not operate as a lease, although it may operate as an agreement to lease, if it creates a present demise.'

The case of Ram Kumar Das. : [1952]1SCR269 (supra) is also relied upon by Mehte, J. In this case, the rent note in question was considered for the purpose of finding out whether it was a lease for a fixed period or whether it was a tenancy at will. After considering the relevant clauses in the rent note. Mehta, J. held that it was a lease for a period of one year. Thus, this case does not in any way support the submissions of Miss Shah that the rent note executed by the tenant could not be taken into consideration at all even if the duration of the period mentioned in the rent note is for a year or less than a year.

10. The next case relied upon by Miss Shah is- Spl. Civil Applns Nos. 566 and 567 of 1964 decided on 6/7-2-1969 ,(Guj.) by D. A. Desai, J. In this case, while considering the question whether the lease in respect of survey number 123 was covered by the exemption contained in Section 43-A(1)(b) of the Tenancy Act, it was observed.

'In order to attract the exemption contained in Section 43-A, it must be shown that there is a lease of land and that the lease was granted for the purpose of growing fruits or flowers. Before the authorities under the Tenancy Act the respondents landlords produced Ex. 2/J which is the certified copy of the Kabuliyat executed by Gandabhai Morarbhai the grandfather of the present -petitioners in favour of an administrator of the estate of the landlords. The terms of the lease were sought to be culled out from Ex. 2/J. A serious controversy was raised for the first time in this court whether Ex. 2/J is a lease and whether the terms of the lease between the original lessor and lessee could be culled out from Ex. 2/J. Miss Shah and Mr. N. R. Oza both of whom appeared for respondents landlords very strenuously urged that Ex. 2/J is not a lease. If Ex. 2/J is not a lease, further question will arise for determination whether there was any deed of lease or the lease was an oral one. That would raise an interesting, question whether initially the lease was an oral lease for a period of one year and Kabulivat was executed unilaterally by the tenant Gandabbai Morarbhai not evidencing the terms of the lease but the liabilities undertaken by him as a tenant.'

After considering the effect of Sections 105 and 107 of the T. P. Act, Desai, J. further observed-

'But in order to effectuate a lease a primary condition is that the lessor must transfer his right to enjoy the property in favour of the lessee. Some act on his part would be necessary evidencing the transfer of his right to enjoy such property in favour of a transferee who would be the lessee. It may be that such transfer can be effected by oral agreement arrived at between the parties. If it is for a Period exceeding one year or from year to year it can only be brought about by a registered instrument and it must be executed both by lessor and the lessee...If, therefore, the document only purports to be kabuliyat executed . purports to be a kabuliv by the lessee alone in favour of the lessor and which is not executed by the lessor also the question would be whether it evidences a contract of lease. If the lessor (It should be lessee) unilaterally executes a Kabulivat in my opinion, no operative lease would come into existence end the Kabuliyat would not provide by itself the terms of the lease. If the parties Proceeded to enter into a contract of lease for a period of 10 years such a contract must be in writing and must be registered. If the valid contract is not entered in to by a proper document and if on the other hand the lessee executed a Kabuliyat in favour of the lessor that document would not become a lease deed and it would not furnish evidence of the terms of the lease. No doubt as the Kabuliyat is executed at or about the time when the contract of lease was entered into that document may -provide a corroborative evidence as to on what terms the Parties entered into a contract of lease. If at any subsequent stage the status of the lessee as tenant is in dispute or denied, a Kabulivat would provide evidence of the nature of his possession and status as a tenatit.'

After considering the case law on this point. it was further observed-

'It thus appears well settled that it is impossible to look into a Kabulivat for the purpose of ascertaining env contract or consensus of the lessor as to the terms of the lease In my opinion, this Kabuliyat Ex. 2/1 is not a lease deed nor does it evidence the terms of the contract of lease and therefore in order to ascertain as to what were the terms of the lease other evidence on record will have to be taken into consideration. While taking that evidence into consideration, the Kabulivat may be referred to for the limited purpose of showing as to what the lessee had agreed to while executing the Kabuliyat.'

It will thus be seen that even D. A. Desai, J, was of the opinion that a Kabuliyat may be referred to for the limited purpose of showing as to what the lessee had agreed to while executing the Kabuliyat. Thus, this is not the case in point for the purpose of showing that a Kabulivat or the rent nate if it is not hit bv the provisions of Section 107, T. P. Act, could not be taken into consideration at all for the purpose of ascertaining the terms and conditions of the lease. In any case, such a Kabuliyat or rent note could be taken into consideration to find out as to what was intended by the lessee when he agreed to execute a Kabulivat or a rent note. In the case before D. A. Desai. J. the Kabuliyat in question was for a period exceeding one year. It is, therefore, natural that such a Kabuliyat could not create a valid lease. If it was not a valid lease and if it was the only document showing the terms of the lease, it may be argued that such a Kabuliyat should not be taken into consideration for the Purpose of ascertaining the terms and conditions of the lease. But so far as the facts in the case before me are concerned, as already observed earlier. there was an oral lease between the parties under which the suit land was agreed to be let for a period of one year. Pursuant to the said oral agreement, Possession of the land was -already Parted by the lessor. The lessee had already entered into possession of the land. The lessee in turn had executed a rent note wherein the terms and conditions agreed upon by him were entered. As there was an oral agreement accompanied by delivery of possession and as the duration of the lease was for a period of one Year that is to Bay -did not exceed one year, it was not hit by Section 107 of the T. P. Act, and therefore, there was a valid lease. If there was a valid oral agreement of lease and if the rent note containing the terms and conditions of the lease are embodied in the rent note, by no stretch of argument it could be said that such a rent note could not be looked into in order to spell out the terms -and conditions of the agreement entered into between the parties. In My opinion, the rent note Ex. 72 though by itself did not create or transfer interest in favour of the lessee, it could be used as a corroborative piece of evidence in order to find out the terms Of the oral lease which were agreed upon between the parties. 1, therefore, do not agree with Miss Shah that such a document is invalid and could not be looked into for the purpose of finding out the duration of the lease. I do not agree with her that such an agreement could only be used for a limited purpose of showing the nature of possession of the lessee and no more. Once it is proved that there was an oral agreement of lease accompanied by possession, it would be open to the court to take into consideration any Kabulivat or rent note executed by the lessee in order to ascertain the terms and conditions of the lease,

11. It was next urged by Miss Shah that assuming that Ex. 72 could be looked into for the purpose of ascertaining the terms and conditions of the lease the terms and conditions contained in Ex. 72 were substituted by the terms and conditions of the receipt Ex. 87 and therefore a fresh tenancy had come into existence and therefore in order to find out the duration of the lease and the purpose for which the suit land was given on lease. to the lessee, Ex. 72 no longer could be taken into consideration. I am unable to agree with her. In this connection, it may be observed that the learned Assistant Judge was clearly in error in making out a new case which was not the case of the parties in the pleadings or in their evidence before the trial court. The case of the plaintiffs from the beginning was that there was a lease for a period of one year and that the suit land was leased to the defendants for a specific purpose of using it for manufacturing cotton chords and that according to the terms of the rent note Ex. 72, the defendants were prohibited from putting the Property to a use other than that mentioned in the rent note. The defendants merely denied to have executed any rent note. The defendants denied that they had taken the suit -premises for the purpose of manufacturing cotton chords only. Their case was that they had taken the land for the purpose of business. But it was not their case in any way that a fresh tenancy had come into existence by reason of the printed terms in receipt Ex. 87. In the absence of pleadings of the parties and in the absence of any evidence on record, the learned Judge below was not justified in going into this question at all. Ex. 87 is a counter-foil of the receipt given to the defendants. That counter-foil does not contain any conditions whatsoever. The learned Judge took into consideration the printed conditions found in the receipt book in order to find out whether a new tenancy had come into existence or not. The original receipts given to the tenant have not been produced. For ought we know, the printed conditions may have been struck off while giving the said receipts. In any case, when the parties were not at issue on this point, it is not open to the court to make out a new case which did not arise from the pleadings as well as from the evidence on record. The learned Judge was clearly in error in holding that a fresh contract of tenancy on terms and conditions different from those contained in Ex. 72 had come into existence by reason of Ex. 87. In my opinion, this finding is not warranted by pleadings of the defendants or the evidence on record and is absolutely redundant. In my opinion, from the evidence on record as it stands, there is nothing to show that a fresh contract of tenancy on terms and conditions different from those contained in Ex. 72 had come into existence.

12. The next important question which now arises for consideration is -whether the defendants had put the demised premises to on use contrary to the terms and conditions of the tenancy. I have already held that the suit Property was leased to the defendants for a period of one year for the purpose of manufacturing cotton chords, This is clear from the terms and conditions embodied in the rent note Ex. 72. From the evidence of the defendants, it is clearly established that they were using the suit premises for the purpose of doing their business in fuel wood. They have also admitted that for some time, they were using a portion of the premises for running a Poultry farm. Ex. 72 not only mentions that the suit premises were taken on lease for the purpose of manufacturing cotton chords but it is specifically undertaken by the lessee that the Property shall not be used for any Purpose other than that of manufacturing cotton chords. In view of this specific prohibition contained in the rent note Ex. 72, it is clear that the landlordsplaintiffs would be entitled to a decree for eviction as provided in Section 13(1)(a) of the Rent Control Act.

13. Mr. Nanavaty invited my attention to Section 12(1) of the Rent Act which gave protection to the tenant from eviction so long as he paid or was ready and willing to pay the standard rent and permitted increases if any and observed and Performed other conditions of the tenancy in so far as they were consistent with the provisions of the Act. Mr. Nanavaty urged that once it is found that the tenant had not observed and performed other conditions of the tenancy in so far as they were consistent with the provisions of the Act, he would not be entitled to Protection from eviction under the Act and in fact. the lessor would be at liberty to obtain a decree against him even under general law, and it will not be necessary for the lessor to fall back on Section 13(1)(a) of the Rent Control Act. It is true that if a tenant did not Pay rent regularly that is - if it was shown that he was not ready and willing to Day the rent regularly and failed to perform other conditions of the tenancy, provided they were consistent with the provisions of the Act, he would not be entitled to any protection from eviction. In the instant ewe, there is no question of non-payment of the standard rent or permitted increases. Therefore, this part of Section 12(1) does not arise. But the other part viz. observance and performance of other conditions of the tenancy does arise. As already stated earlier, the defendants had undertaken by Ex. 72 to use the suit prenses only for the purpose of manufacturing cotton chords. If contrary to the terms and conditions contained in the rent note ex. 72, the defendants used the suit property for the purpose of their business of fuel wood or for running a poultry farm they could certainly be said to have contravened the terms of tenancy. But it is difficult to say that the landlords would be entitled to a decree for eviction, under S. 12(1) of the Rent Act read with Sections 108(2) and 111(a) of the Transfer of Property Act irrespective of the provisions contained in Section 13(1) of the Rent Act. Miss Shah urged that even if it was established that the tenant had not observed and performed the conditions of the tenancy, if they were inconsistent with the provisions of the Act, they could not be evicted on the ground of non-performance of the conditions. She, therefore, urged that in order to entitle the lessor to obtain possession, he must bring his case within the purview of Section 13(1)(a) to (1) of the Act.

14. Mr. Nanavaty, however referred to the case of Ganga Dutt v. Kartik Chandra, AIR 1961 SC 1067, wherein it was observed-

'The statute protects his possession so long as the conditions which justify a lessor in obtaining an order of eviction against him do not exist. Once the prohibition against the exercise of jurisdiction by the court is removed, the right to obtain possession by the lessor under the ordinary law springs into action and the exercise of the lessor's right to evict the tenant will not, unless the statute provides otherwise, be conditioned.'

With respect, I am in agreement with the 'observations made therein. Mr. Nanavaty is right in submitting that once it is found that the tenant has failed and neglected to pay rent or has failed to perform the conditions of the lease he would not be entitled to any protection from being evicted by the provisions of the Rent Act. But in order that a tenant may lose his protection, it must be proved that he has ,ailed to perform the conditions of the tenancy which -are consistent with the provisions of the Act. Section 13(1) of the Act contains provisions under which 'he landlord would be entitled to recover possession of any premises, as mentioned n sub-clauses (a) to (1). Sub-clause (a) states-

'13 (1) - Notwithstanding anything contained in this Act (but subject to the provisions of Section 15), a landlord shall be entitled to recover possession of any premises if the court is satisfied.

(a) that the tenant has committed any act contrary to the provisions of clause (o) of Section 108 of the Transfer of Property Act, 1882;'

Thus, in order that the lessor may be entitled to recover possession of the demised premises on the ground of change of user of the premises, he must bring his case within sub-clause (a) of sub-section (1) of Section 13 of the Act. If he does not bring his case under Section 108(o) of the T. P. Act, regarding the change of user even if it is held that the tenant has committed a breach of the conditions, that would not automatically give a right to the lessor to obtain possession. The change of user must come within the four corners of Section 108(o) of the T. P. Act as stated in Section 13(1) of the Rent -Control Act. Section 108(o) states-

'The lessee may use the property and, its products (if any), as a person of ordinary prudence would use them if the were his own; but he must not use, or permit another to use the property for a purpose other than that for which it was leased, or fell or sell timber, pull down or damage building belonging to the lessor, or work mines or quarries not open when the lease was granted or commit any other -act which is destructive or permanently injurious thereto.'

Thus, the lessee is enjoined by the terms of sub-clause (o) to use the property -as a person of ordinary prudence would use if it were his own. But he is prohibited from using it for a purpose other than that for which it was leased. He is also prohibited from felling or selling timber or damaging the building or working mines etc. which were not open when the lease was granted. He is also prohibited from committing any other act not enumerated above which is destructive or permanently injurious thereto. From the Language used in sub-clause (o). it is clear that all these acts which are prohibited to the lessee are distinct by themselves and not inter-connected. In fact, all the clauses are disjunctive and not conjunctive. Miss Shah, however, urged that in order that sub-clause (o) may come into play, it is not enough to show that the tenant had made change of user but it must further be shown that the said change of user had resulted in the destruction or injury to the Property. If the change of user had not resulted into any destruction or injury to the property, Miss Shah urged that, mere change of user would not entitle the lessor to obtain a decree for eviction. She invited my ,attention to the case of Mahmad Umar Abdul Rahim v. Shah Manilal Gokaldas (a firm), (1968) 9 Guj LR 104 wherein it was observed-

'A close examination of the provisions of clause (o) of Section 108 of the Transfer of Property Act. therefore, indicates that they are intended to adopt in substance the principle of law under the English law to prohibit the tenant from committing what is known as voluntary waste. The fact that Section 108(o) which prohibits the lessee from using the property for a purpose other than that for which it was leased, has associated this prohibition with acts which are destructive or permanently injurious to Property or its product, indicating that the kind of change of user which is intended to be prohibited is the one which would be destructive or permanently injurious to property or its product.'

With utmost respect, it is difficult to agree with Vakil, J., in his interpretation of sub-clause (o) of Section 108, T. P. Act. As already observed earlier, the first part of Section 108(o) is independent from other parts. It enjoins on the lessee to use the property in the same manner as a prudent owner would use his own. But he could not use it for the purpose other than that for which it was leased. Therefore, even while using the property like ,a prudent owner, it would not be permissible to the lessee to use it for a purpose other than the one for which it was taken on lease. The other sub-clauses are disjunctive and not conjunctive as observed earlier. The last clause viz. 'the lessee must not commit any other act which is destructive or permanently injurious thereto' would go with the clause 'fell timber, pull down or damage building belonging to the lessor, or work mines or quarries not open when the lease was granted'. This sub-clause cannot be referred to in relation to the first clause where the lessee is enjoined not to use or permit another to use the property for a purpose other than for which it was leased. In my opinion, therefore, with utmost respect to Vakil, J., he has taken rather a very broad view of the section which is not permissible. In my opinion, once it is proved that the lessee was using or permitting another to use the property for a purpose other than that for which it was leased. there would be a breach of condition and it was not necessary in order to entitle the lessor to obtain possession to prove that such a breach had resulted in damage or waste to the property. Reliance was placed by Vakil, J. on t he case of U Po Naing v. Burma Oil Co. Ltd., AIR 1929 PC 108 in support of his view. In my opinion, the Privy Council has not decided anything on this point. What the Privy Council has decided is as under:

'A further argument was based upon the provisions of Section 108, sub-section (o), T. P. Act, 1882, which provides that the lessee of property must not use the property for a purpose other than that for which it was leased. In their Lordships' judgment it is not necessary exhaustively to discuss the limits of that provision, but there seems to be nothing inconsistent with its terms in the use of gas which is necessarily set free by reason of the sinking of the oil well for the respondents' own purposes without doing any damage or any injury to the Property leased.'

It was in this context that the Privy Council referred to the damage or injury to the property leased. The Privy Council has not Laid down as a Principle that unless the breach of condition resulted in damage or injury to the property leased, the lessee would not be entitled to recover possession on the ground of breach of the terms and conditions. In my opinion, therefore, this case cannot help the opponents. However, I would have referred this matter to a larger bench because of the abovementioned disagreement. But the case before Vakil J. could be distinguished from the facts in the instant case: not only it is mentioned in the lease that the property shall be used for the purpose of manufacturing cotton chords, but there is specific prohibition in the rent note itself which says that the property shall not be used for any purpose other than that for which it is leased. At page 113, Vakil J. observed-

'If there is a positive covenant in the lease that the lessee shall not use for any other purpose then as -a consequence of such a covenant the lessee may render himself liable to be deprived of all his rights under the lease. But here, this -provision does not contemplate such a situation.'

Thus it will be seen that even in view of Vakii, J. if there was a positive covenant prohibiting the lessee from using the property for a purpose other than that for which it was leased, it would be open to the lessor to recover possession from him on the ground of breach of the covenant. In my opinion, therefore, the ratio in Mahmad Umar, (1968) 9 Gui LR 104 (supra) cannot help the opponents. In the instant case. as the opponents had committed breach of the conditions of the rent note the lessors will be entitled to recover possession on that score. It is not necessary for the lessors to prove that any damage or injury was caused to the property as a result of the breach of the conditions, in view of the specific condition in the lease deed itself, prohibiting the lessee from using the -property for a purpose other than that for which it was leased. In such circumstances, I do not propose to refer this matter to a larger bench.

15. It was next urged by the learned Advocate for the opponents that the notice given by the petitioners was invalid because they had not served a notice on opponent No. 12 before filing the present suit. It was urged on behalf of the opponents that there was a joint tenancy in favour of all the 12 tenants and if no notice was given to defendant No. 12 before filing the suit, the suit itself will not be maintainable against opponent No. 12. In that view of the matter, Miss Shah urged that, this revision application should be dismissed.

16. Mr. Nanavaty on the other hand urged that here was a case of statutory tenancy after the expiry of the period of lease mentioned in the rent note. Thus, a statutory tenant would not be entitled to any notice at all from the lessors before the suit is filed, He urged that merely because the lessors. after the expiry of the period of tenancy did not file any suit to recover possession because of the existence of the Rent Control Act, it cannot be said that the lessors had consented to the lessees holding over the property and thereby accepted them as tenants by holding over as contemplated in Section 116 of the T. P. Act. In support of his submission, Mr. Nanavaty referred to the case of AIR 1961 SC 1067 wherein at page 1070, it was observed-

'The High Court was in our judgment right in holding that by merely accepting rent from the appellant and by failing to take action against him the appellant did not acquire the rights of a tenant holding over. it is true that in the notice dated October 10, 1950, the appellant is described as a monthly tenant, but that is not indicative of conduct justifying an inference that a fresh contractual tenancy had come into existence. Within the meaning of the West Bengal Premises Rent Control Act. 1950, the appellant was a tenant and by calling the appellant a tenant the respondents did not evince an intention to treat him as a contractual tenant. The use of the adjective monthly also was not indicative of a contractual relation. The tenancy of the appellant was determined by efflux of time and subsequent occupation by him was not in pursuance of any contract express or implied but was by virtue of the protection given by the successive statutes. This occupation did not confer any rights upon the appellant and was not required to be determined by a notice -prescribed by Section 106 of the Transfer of Property Act.'

With utmost respect. I arn in entire agreement with the principle of law laid down therein. The facts of the case before the Supreme Court are identical with the facts of the case before me. In the instant case, the lease was initially for a period of one year. On the expiry of the term of the lease, the tenant continued on the Premises and paid rent monthly which was accepted by the lessors. The lessors did not at any time convey their intention to continue the lessee as a contractual tenant either expressly or impliedly. Subsequently, when the lessee committed breach of the terms of the lease deed a notice was served on the lessee determining tenancy wherein the lessee was described as a monthly tenant. Relying on the description of the lessee as a monthly tenant in the notice served upon the opponents, it was very vehemently urged by Miss Shah that the petitioners by their own conduct and by the description given in the notice had accepted the lessee as a tenant and therefore a fresh tenancy by holding over as contemplated in Section 116, T. P. Act came into existence. In such a case, she urged that. as the lease was for the purpose of anufacturing cotton chords, the fresh lease by holding over would be annual lease and therefore six months' notice was required to be ,given to the tenants and if six months' notice was not given, the said notice would be invalid. She distinguished the Supreme Court case by stating that in the Supreme Court case. the lessor on expiry of the period of leasehad terminated the tenancy, but he could not file a suit be cause of the existence of the Rent Control Act. She, therefore, urged that, therefore, the lessor had clearly indicated his intention of not continuing the tenant as a lessee. Thus, the case before the Supreme Court could easily be distinguished from the facts before t his court. She relied on the unreported judgment in Civil Revn. Appln. No. 67 of 1965 with Special Civil Appln. No. 269 of 1965 with Special Civil Application No. 648 of 1,965 decided on 22-12-1967 (Gul.1 by N. G. Shelat, J. wherein the case of Ganga Dutt (supra) was distinguished. It was observed-

'It follows, therefore, clearly that the termination of tenancy had not taken place before the notice Ex. 4,8 and when that is so, in view of the statement of the plaintiffs in the notice as also in the plaint about the defendant continuing possession as a tenant of their vendors, it can be safely taken that the tenancy was continued on the same basis viz. the same rent of Rs. 20 per month. In the case relied upon by Mr. Vakil, there was termination of tenancy in between after the same was determined by efflux: of timeand that makes the case not applicable to the facts of the present case.'

With respect, I am unable to agree with the view taken by him. In the light of the categorical observations made by the Supreme Court, it is not open to this court to hold that a fresh tenancy would arise merely because rent was accepted from the tenant and he was described as tenant in the notice terminating his tenancy. In my opinion the facts of the case before the Supreme Court are not very distinct from what they are here. There, in spite of the Rent Control Act being in force, the lessor gave a notice terminating the tenancy of the lessee. After having terminated the tenancy of the lessee, if he accepted rent, it would be indicative perhaps of his mind that he had accepted him as a contractual tenant. Thus, in my opinion, determination of the tenancy by a notice prior to the said notice is not a factor in favour of the tenant. But it would be against him, if he accepted rent after determining the tenancy. Be that as it may, the fact remains that in spite of these facts, the Supreme Court clearly stated that when the lessee was continued as a tenant because of the existence of the Rent Control Act and if the rent was accepted from him that would not make him a contractual tenant by holding over. It was also stated that merely because in the notice he was described as a tenant on monthly basis, that would not be indicative of the fact that he was ,accepted as a contractual tenant after efflux of the period of the lease, With respect therefore to N. G. Shelat, J., in view of the Supreme Court decision, it is difficult to agree with him. In the instant case. there is no evidence to show that except the bare acceptance of rent by the lessor, the lessor had at any time accepted the lessee as a contractual tenant. It is not disputed that the Rent Control Act was in force since 1948. The rent note for the first time came to be executed in 1951 for a period of one year. Thus, it would not be possible for the lessors to claim possession from the tenant unless his case fell within one of the clauses of Section 13 of the Rent Control Act. In my opinion, therefore, merely because the lessors did not take any action against the lessee soon after the expiry of the period of the lease to take possession of ,the premises and in fact went on accepting rent would riot be a factor against the lessors. It would not be -indicative of the fact that they had accepted the opponents as contractual tenants.

17. Assuming for the sake of argument that the opponents have become tenants by holding over, it would not be necessary to serve notices on all the opponents. All the defendants were not the tenants of the lessors. The original lessee was Gulamnabi who died in 1960 and on his death, his heirs continued to occupy the suit premises. Thus, even if it is held that a contractual tenancy had come into existence, it was a joint tenancy in favour of all the opponents and if a notice is served on any one of them, it would be a good notice and it would not be necessary to serve all the opponents individually.

18. In the case of Kanii Manii v. Trustees of the Port of Bombay, : AIR1963SC468 , it was observed that once it is held that the tenancy was joint, a notice to one of the joint tenants was sufficient, and the suit for the same reason was also g6od. Mr. B. Sen, in arguing the case of the appellant, did not seek to urge the opposite. In our opin~on, the notice and the frame of the suit were, therefore, proper and this argument has no merit.'

In the instant case, as already observed above, the opponents were not the original lessees. The original lessee was one Gulamnabi and on his death, his heirs continued to occupy the suit premises. A notice was therefore served on them describing them as monthly tenants. Thus if at all any tenancy came into existence in their favour, it would be a joint tenancy and in such a case. it would, not be necessary to serve them all with a notice before filing the suit as observed by the Supreme Court above. In my opinion, therefore, the notice given by the present petitioners to defendants Nos. 1 to 11 was quite proper and it cannot be said that the notice was invalid because the name of defendant No, 12 was not mentioned in the said notice. Defendant No. 12 was already a Party in the suit and therefore appropriate relief could be given against him even though his name was not mentioned in the notice served on defendants Nos. 1 to 11.

19. It was then urged by Miss Shah that as the original lease was for manufacture of cotton chords, the tenancy which came into existence under Section 116 of the T. P. Act read with Section 106 thereof would be from year to year and in that case, six months' notice was necessary and not one month's notice. She, therefore, urged that the notice given by the plaintiffs would be invalid in case it was held that a contractual tenancy had come into existence by holding over. In my opinion, the submission made by Miss Shah will not help her. Section 116, T. P. Act states-

'116. 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 leased as specified in Section 106.'

Section 106 states-

'106. 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 expiring with the end of a year of the tenancy; 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' notice expiring with the en d of a month of the tenancy.'

Thus, in order that a lease of the immovable proDerty for agricultural or manufacturing purposes may be deemed to be a lease from year to year it should be proved that there was absence of a contract to the contrary. Execution of the rent note Ex. 72 is proved. I have already held above that this rent note could be used as a corroborative piece of evidence in order to find out as to what were the terms of the oral lease entered into between the parties. In-this document it is stated that the land was taken on lease for a period of one year at the rate of Rs.40 p.m. and that the rent was to be paid according to English calendar every month as and when it became due. It is thus clear that even though the purpose of the lease was manufacture of cotton chords, the parties intended to create a monthly lease, duration of which was one year in such a case, even if it were held that a fresh contractual tenancy had come into existence by the lessor accepting rent from the lessee, a lease from year to year would not come into existence as contemplated in Section 106, T. P. Act, merely because the purpose of the lease was manufacture of cotton chords. S 106 is subject to the contract to the contrary. If the parties intended that the lease was for a period of one year and that the rent was to be paid every month they intended for a monthly lease for a period of one year only and not a lease from year to Year. In such a case, therefore, only a month's notice would be necessary and not six months' notice as submitted by Miss Shah. The evidence shows that even after the expiry of the period of lease. when the opponents continued to remain in possession of the suit premises, they went on paying rent every month as the receipt Ex. 87. shows. I am supported in my view by the case of Kishanlal v. L,al Ram Chander, : AIR1952All634 , wherein it was observed-

'Where a person holds over, after an unregistered lease of a shop for a manufacturing purpose for one year, which fixes only monthly rent, the holding over cannot be from year to year as that would amount to negative the provisions of Section 107. The tenancy must be held to be from month to month, so far as the period of holding over is concerned.'

In the instant case, there was a provision in the lease deed for paying the rent monthly. The said provision of monthly rent is an agreement td the contrary within the meaning of Section 116, T. P. Act. Thus, even though the Property was taken on lease for the purpose of manufacturing cotton chords, the tenancy from year to year would not come into existence in view of the special condition mentioned in the rent note providing that the rent was to be paid from month to month. In my opinion, therefore, the notice given by the present petitioners to the opponents would be valid even if it were held that the contractual tenancy by holding over come into existence.

20. Mr. Nanavaty, learned Advocate for the petitioners submitted that the learned Assistant Judge had clearly erred in law in holding that the lessors had acquiesced in the breach of the conditions of the tenancy and, therefore they would be estopped from recovering possession of the suit premises from the lessees. He urged that the defendants had taken contradictory pleas in their written statements. At one stage, they denied the lease deed at all. At another stage, they denied that there was any such condition in the rent note prohibiting them from making use of the property for a purpose other than that of manufacturing cotton chords and lastly in the alternative, it was urged that the lessors had permitted them to use the property for other purpose and that to their knowledge they were using the property for the purpose of doing business in firewood. It may be noted that after taking these inconsistent pleas, none of the defendants stated a word in their evidence before the court that the plaintiff had -acquiesced in the use of the property for the purpose of selling firewood or poultry farm. It was not even suggested to any witnesses of the plaintiffs in cross-examination that to the knowledge of the plaintiffs, such use was made or that the plaintiffs had given their express or implied consent to such use of the property being made. There was no issue about the acquiescence framed by the trial court. Thus, when no issue was framed by the trial court and if there is no evidence worth the name showing that the plaintiffs had given their consent express or implied to the use of the property for the purpose of selling firewood or for running it -as a poultry farm, one fails to understand how the plaintiffs could be said to have acquiesced in such use. It was not open to the, learned Judge the absence of any evidence whatsoever to hold that the plaintiffs lied acquiesced in such use. In my opinion, with respect to the learned Assistant Judge, he has decided this point merely on imaginary grounds. The defendants no doubt had taken a plea that the plaintiffs had consented to such use and that to their knowledge, the property was being used. But it should be remembered that mere pleading is not proof. It was for the defendants to request the court to frame a specific issue on this point -and thereafter lead evidence on the said issue. Assuming that the trial court failed to frame such issue, if the deftridants had led any evidence in this connection it would be to the court to consider the evidence provided the parties knew that they- had gone on trial on the same pleadings. Here, there was no issue whatsoever regarding the acquiescence nor was there any evidence of the defendants suggesting that the plaintiffs had at any time acquiesced in the use of the property for the purpose of selling firewood or for the purpose of running a poultry farm. With respect to the learned, Assistant Judge. therefore, it was not proper on his part to make out a new case and hold that even though there was change of user, as the plaintiffs had acquiesced therein, they would be estopped from recovering possession of the suit premises from the opponents. it may be noted that both the courts below have not even appreciated the evidence in this connection. Both the courts below have recorded a finding that the opponents were using the property for the Purpose of selling firewood since 1951. One fails to understand how both the learned judges found that the use of the property for the purpose of selling firewood was made since 1951.

21. Plaintiff No. 4 Abdul Rashid, Ex. 71 had stated that no use contrary to the terms of the tenancy was made of the suit property during the lifetime of Gulamnabi. According to him, Gulamnabi died in January 1960. In cross examination, he has stated that he did not know the name of Pavdi manufacturer but he was a carpenter. It was in 19,63 that he was introduced into the suit property. He further stated that business of firewood was of the defendants. It was carried on at the same time when the business of Pavdi was done. The business of firewood was stopped in 1965. The business of poultry farm was commenced in 1964. it thus be seen from his evidence that the business of Pavdi was started in 1963 by the defendants and at that very, time, business of firewood was started. Thus, the business of firewood came to be started in 1963 while the business of poultry farm was commenced in 1964.

22. Witness Abdul Salam, ex. 97 has stated that he had seen the defendants carrying op business of selling cotton chords. He also 'stated that the subtenant used to manufacture Pavdi and used to sell Achhola Owoo-den planks).

23. Witness Gorumiya Hasarimiya, ex. 98 also speaks about the purchase of goats from the defendants from the suit land.

24. Witness Abdulgoini Ahmiya, ex. 99 states that he had purchased a pair of Pavdi from a carpenter who was in the suit land. Upon his asking, he stated that he was a sub-tenant and was working there. The said Pavdi shop was conducted the-re for about 10 to 11 months. There was also firewood on the suit land and it was sold by the persons to whom the suit land was let for the purpose of manufacturing chord. The evidence of this witness was challenged in the ground that he was a co-trustee of a mosque along with plaintiff No. 4 and therefore, he was a partisan witness. In my opinion, merely because he was a co-trustee of a mosque along with plaintiff No. 4, it cannot be inferred that he had come out to give false evidence in support of the plaintiffs. He has clearly stated that he had seen 25 to 40 maunds of firewood on the suit land and the same was being sold to others. I have no reason to discard his evidence In this connection.

25. Similarly Ahmedmiya, ex, 100 has also stated that the firewood used to be kept in the open land as well as inside the hut which was constructed on the land. After the business of firewood was stopped, business of poultry farm was carried on and the business of selling goats was carried on. He had gone to the suit land for purchase of firewood for his son. He had paid Rs, 1.50 paise for it. Nothing has been brought out from the cross-examination of these witnesses that they were not telling the truth. In fact, both the courts have recorded a finding that the defendants were using the suit land for the purpose other than that for which it was taken on lease. Vierefore, the only question which reqpires cozisideration at my hands - is whether the plaintiffs had acquiesced in the act of the defendants in using the property for the purpose other, than that for which it taken on lease, As already stated earlier, the question of acquiescence does not arise at all. There was no issue to that effect and no questions were suggested to the plaintiffs and their witnesses in the cross-examination about it nor have the defendants so stated in there evidence before the court. Both the courts' below were clearly' in error in coming to the conclusion. that the new business was started since 1961 in fact, from the evidence of the plaintiffs and their witnesses, it has clearly come out that the new business of :firewood was started in 1963 and that of poultry farm in 19'.

26. As against the evidence of the plaintiffs, the defendants had examined Gulammohmed, ex. 114 and Abdul Latif, ex. 115. Abdul Latif is defendant No. 3 in the suit while Gulammohmed is defendant No. 2. The evidence of these persons cannot be relied upon because even they went to the extent of denying the rent note which was signed by defendant No. 3 on behalf of Gulamnabi. Their evidence also is contrary to the actual state of affairs. From the evidence on record, both the courts did not accept their word that they did not carry on any other business in the suit premises. As already stated earlier, both these witnesses Mve not spoken a word about the Plaintiffs having agreed to their use of this suit property for the purpose of firewood business and poultry farm business. On the contrary, defendant No. 2 in his evidence denied the fact of running the-business of firewood in the suit premises at all. He stated that the firewood which appears in the photograph were purchased by them for their domestic use. HL% stated that their family consisted of 54 members. They required 600 to 700 maunds of firewood every year. They did not sell any firewood to Abduhniya Rafiyuddin. This is clearly an afterthought. But in any case, what the defendants' say is that no firewood was sold and that no business of firewood was carried on in the suit land. Thus if the business of firewood was not carried on in the suit land according to the defendants, the question of acquiescence by the plaintiffs would not arise. With great respect to the learned Assistant Judge, he has failed to appreciate the evidence of the parties in its proper perspective, and that is why, he has made out a new case which was not the case of the defendants at all. In my opinion, the learned Assistant Judge was clearly in error when he came to the conclusion that the plaintiffs had acquiesced in the change of user by the defendants. There was no acquiescence on the part of the Dlaintiffs either expressly or impliedIv. The plaintiffs, therefore, as stated earlier, would be entitled to recovery of possession from the defendants under Section 13(1)(a) of the Bombay Rent Control Act read with the sub-clause ~(o) of S. 108 of the Transfer of Property Act.

27. Mr. Nanavaty urged that both the courts were wrong in holding that the plaintiffs did not require the suit premises for their -personal use bona fide and reasonably. He urged that if the plaintiffs stated that they wanted the suit land for the Purpose of running a poultry farms there was no reason to disbelieve their word. He, therefore, urged that the finding recorded by both the courts below is not borne out from the evidence on record and it would be open to this court to re-consider it as the finding whether the property was required bona fide and reasonably would be a mixed question of law and fact inferred from on the established facts. I am unable to agree with him. In the instant case, from the evidence on record, both the courts below have negatived the plaintiffs' contention that the suit land was required bona fide and reasonably for their personal use. The evidence shows that the plaintiffs are in Possession of open piece of land on which they could start the poultry farm. But for all these years, they have not done so. Under the circumstances, when both the courts have considered the evidence on record -and have recorded a finding that the suit land was not required 11v the plaintiffs for their personal use bona fide and reasonably, I see no reason to take a different view of the matter. However, as already stated earlier, the plaintiffs would be entitled to recovery of possession on the ground of change of user of the premises.

29. In the result, the revision application succeeds. The judgment and decree of the learned Assistant Judge, Surat confirming the decree of the trial court are hereby set aside and the plaintiffs' suit is decreed. In view of the facts of this case, parties to bear their own costs throughout.

30. Application allowed.

Subject	Tenancy
Court	Gujarat High Court
Decided On	Apr-09-1973
Case Number	Civil Revn. Appln. No. 985 of 1968
Judge	A.A. Dave, J.
Reported in	AIR1975Guj1
Acts	Transfer of Property Act, 1882 - Sections 105, 106, 107, 108 and 116; Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 13 and 13(1); ;Transfer of Property (Amendment) Act, 1892 - Sections 116; Code of Civil Procedure (CPC), 1908 - Order 6, Rule 2 - Order 41, Rule 2
Appellant	Abdulahed Moulvi Abdulsamad and ors.
Respondent	Gulamahmed Gulamnabi Bardoliwala and ors.
Appellant Advocate	K.S. Nanavati, Adv. for; I.M. Nanavati, Adv.
Respondent Advocate	V.P. Shah, Adv. for; N.R. Oza, Adv.
Cases Referred	Kanii Manii v. Trustees of

Abdulahed Moulvi Abdulsamad and ors. Vs. Gulamahmed Gulamnabi Bardoliwala and ors. - Court Judgment