KUHAHAMMED Vs. UNNIMODEENKUTTY

JUDGEMENT

(1.) THE substantial questions of lawarising fora decision are whetherthe termination of the lease for manufacturing purpose by fifteen days' notice is valid and whether, amendment to S. 106 of the Transfer of Property Act, 1882 (for short, "the Act")introduced by thetransfer of Property (Amendment) Act, 2002 (Act 3 of 2003) applied to pending suits and proceedings.

(2.) RESPONDENT/plaintiff (he died pending this appeal - Additional respondents are his legal representatives) claimed that the schedule property which was allotted to his share as per Ext. A3, partition deed No. 1348 of 1964 was leased to the appellant as per an agreement dated 16. 1. 1982 for a period of five years for construction of small boats and stipulating payment of rent at the rate of Rs. 300/- per month. Respondent received Rs. 3,600/- as advance as security for the due observance of the terms and conditions of the agreement. Appellant had agreed to pay the monthly rent each month and surrenderthe land on theexpiry of the period of lease. Appellant paid the rent only for 38 months since the date of entrustment. The period of lease expired by 15. 1. 1987. Respondent issued Ext. A1, notice on 28. 10. 1987 terminating the tenancy by 15. 11. 1987 and demanding vacant possession. Appellant did not comply. Hence the suit for recovery of possession, realisation of rent arrears and damages for use and occupation from 16. 11. 1. 987 onwards. Appellant resisted the suit contending that the respondent and his elder brother had granted to him the land referred to in the plaint schedule on 15. 9. 1962 under an oral lease for manufacturing purpose (construction of small boats) stipulating the monthly rent payable by him at Rs. 25/- per month and receiving Rs. 100/- by way of advance. Pursuant to that lease he constructed a shed in the said land and has been using it for construction of small boats. Later, as insisted by the respondent an agreement was executed in the year 1982 stipulating the rent payable at Rs. 300/- per month. He is a commercial lessee of the land entitled to the protection of S. 106 of the Kerala Land reforms Act. He also contended that Ext. A1, notice terminating the tenancy is not in accordance with the law. Accepting the request of the appellant, the issue regarding commercial lease was referred to the Land Tribunal for decision. The Land tribunal found that no commercial lease is involved and answered the reference accordingly (Ext. 61 is the order of the Land Tribunal ). Learned Munsiff accepted the finding, rejected the other contentions raised by the appellant and decreed the suit as prayed for. Appellant preferred A. S. No. 128 of 1994 before the learned District judge. The contentions raised by the appellant before the learned District Judge did not succeed. The appeal was dismissed. Hence, this Second Appeal.

(3.) THOUGH, in the courts below appellant had sought protection under S. 106 of the Kerala Land Reforms Act, that contention is not pressed before me. Learned counsel forappellant contends that Ext. A1,notice dated 28. 10. 1987 terminating the tenancy with 15 days notice by 15. 11. 1987 is invalid as it does not conform to the requirement of S. 106 (1) of the Act. According to the learned counsel it is the admitted case of the respondent as seen from the averment in the plaint that the lease is for five years for manufacturing purpose and hence the lease could be validly terminated only by six months' notice expiring with the end of the year of the tenancy. Even if it is assumed that appellant is a tenant holding over the premises, it is contended that since the lease is for manufacturing purpose and no contract to the contrary is pleaded or proved by the respondent, the lease must be deemed to be from year to year, terminable only as aforesaid. In response, learned counsel for the additional respondents contended that in the absence of specific contention in the written statement as to how the notice is invalid, appellant cannot challenge the validity of ext. A1. notice. It is also contended that since the agreement of lease though reduced into writing is unregistered, that instrument cannot create a lease for five years. But it is admitted by the appellant that he has been put in possession of the premises on agreement to pay monthly rent. According to the learned counsel, appellant is a tenant holding over. Theagreementto pay monthly rent and its payment every month till 15. 3. 1985 amounted to a contract to the contrary as stated in S. 106 (1) of the act. Hence the lease must be deemed to be from month to month terminable by fifteen days' notice expiring with the end of the month of tenancy. The lease was created on 16. 1. 1982. Hence it is contended that Ext. A1, notice dated 28. 10. 1987 terminating the lease by 15. 11. 1987 is valid.