AKBARALLI HASAN ALLI Vs. RAMCHANDRA NARAYAN KARANDE

JUDGEMENT

(1.) This letters patent appeal is directed against the decision of the learned Single Judge of this Court, dismissing the plaintiffs suit for possession of the suit premises which are a Gala measuring 25x7 in a building which admittedly belonged to the then Thana Borough Municipality. The plaintiff was a tenant in respect of the suit premises and by a registered agreement which according to the plaintiff, was of leave and licence dated the 18th April, 1959, he had inducted the defendant in the same for a period of three years which was to expire on the 17th April, 1962. By his notice dated the 4th February, 1962, the plaintiff revoked the licence with effect from the expiry of the agreement dated the 17th April, 1962. The defendant by his reply dated the 7th March, 1962 contended that what was granted to him was a lease and not a leave and licence. The second notice given by the plaintiff on the 11th March, 1962 asking the defendant to hand over the possession of the suit premises after the expiry of the alleged licence period also met with the same reply from the defendant on the 27th March, 1962. According to the plaintiff, however, on the expiry of the said agreement on the 17th April, 1962, the suit premises were actually handed over by the defendant to him and, thereafter there was a second agreement, namely of the 14th May, 1962 again creating a licence in favour of the defendant for a further period of three years beginning from the 1st May, 1962. This agreement was not registered. Since this agreement was to expire on the 30th April, 1965, the plaintiff gave another notice dated the 20th February, 1965 calling upon the defendant to quit and hand over the possession of the suit premises after the 30th April, 1965. This notice was not replied to, and, therefore, second notice was given by the plaintiff on the 6th April, 1965. Since the defendant did not comply with this notice, the present suit was filed on the 21st June, 1965. The suit was resisted by the defendant contending, firstly, that he was a tenant in respect of the suit premises, and, therefore, he was protected by the Rent Control Act. He also contended that the Civil Court had no jurisdiction to entertain the suit since the jurisdiction vested exclusively in the Rent Court. His last contention was that since he was a tenant his tenancy could be terminated only by a notice under section 106 of the Transfer of Property Act. The notice given by the plaintiff landlord terminated his tenancy with effect from the 30th April, 1965. The month of tenancy, however, was from 18th of the last month to the 17th of the current month. Since the period of notice did not coincide with the month of the tenancy, the notice was invalid in view of the provisions of the said section 106.

(2.) On the basis of this pleading and the evidence led, the trial Court came to the conclusion that the defendant was a tenant in respect of the suit premises. The trial Court, further held that there was a valid notice terminating the tenancy and the provisions of the Rent Control Act did not apply to the suit premises. The trial Court, therefore, decreed the suit of the plaintiff. Against the said decision the defendant preferred an appeal to this Court and the learned Single Judge who heard the appeal dismissed the suit on the ground that there was no valid termination of tenancy as per the provision of section 106 of the said Act. It appears that there was no other contention raised before the learned Judge since we do not find any discussion on the same. It is against the said decision of the learned Single Judge that the present appeal has been preferred.

(3.) Although as stated above no other contention was raised before the learned Single Judge, Mr. Dalvi appearing for the plaintiff-appellant has raised two contentions other than the contention with regard to the validity of the notice. His first contention is that the finding recorded by the trial Court that the defendant was a tenant and not a licensee, was both factually and legally incorrect. His second contention was that the second agreement dated the 14th May, 1962, which created a licence in favour of the defendant, did not require registration as held by the two courts below and in any case the same could be looked into for a collateral purpose. His last contention was that the notice was valid and the finding recorded by the Court below on that issue is incorrect.