- (1.) SHIV Charan, J. This second appeal has been instituted against the judgment and decree dated 31. 3. 1998 passed by the then Xth Addl. District Judge. Meerut in C. A. No. 1 of 1995 (Bharat Petroleum Corporation Ltd. v. Smt. Phool Wati and others ). By the impugned judgment and decree the learned appellate Court dismissed the appeal alongwith cross-objection filed by respon dents. Arid the judgment and decree of the trial Court dated 16. 12. 1994 was confirmed. Although the present appeal has not been admitted till date for hearing after formulating the substantial question of law. But on 19. 5. 1998 stay was granted by this Court to the effect that execution of the impugned judgment and decree of the two Courts below shall remain, stayed. Although application was moved on behalf of the respondent for vacating the stay order granted in this case. Hence under these circumstance both the Counsels for the parties in joint statement stated that this appeal be finally disposed of. Under these circumstance the above mentioned appeal shall be disposed of finally after considering the sub stantial question of law involved in this case.
(2.) THE original record of the Courts below has also been summoned and is available for perusal and from the perusal of the original record it is evident that respondents/plaintiff instituted O. S. No. 1221 of 1986 (Smt. Phool wait and others v. M/s Bharat Petroleum Corporation Ltd.) in the Court of City Munsif, Meerut for recovery of possession of the property in dispute fully described at the foot of the plaint alongwith recovery of arrears of rent and expenses for use and occupation at the rate of Rs. 6,000/- per month. It has also been stated in the plaint that the plaintiffs respondents are the owner and landlord of the property measuring 100x100 feet situated at Hapur, Bulandshahr Road. That this land was let out by the predecessor-in-interest of the plaintiffs to M/s Burmah Shell Oil Storage and Distribut ing Company of India Ltd. , the predecessor-in-interest of the present defendant/appellant i. e. M/s Bharat Petroleum Corporation Ltd. For a period of 15 years at a monthly rent of Rs. 95 by a registered lease deed dated 15. 7. 1957. And in view of clause No. 8 of the lease deed it was also stipulated that if the lessees shall be desirous of renewing this present lease then such desire shall be expressed to the lessor not less than three months' notice in writing prior to the expiration. THE lease was for a fixed period of 15 years w. e. f. 23. 8. 1956. And the lease thus expired by efflux of time on 22. 8. 1971. Notwithstanding the renewal clause the said lease deed was never expressly renewed. But the predecessor-in-interest of the defendant continued to hold and enjoy the said plot on the same terms and conditions contained to the lease deed dated 15. 7. 1957. Hence after expiration of the period of lease the tenancy was created holding over in view of Section 116 of the T. P. Act. A letter was written by the predecessor-in-interest of the defendant in the year 1971 expressing the desire for renewal of the licence with a specific condition that the lease deed shall be renewed contain a clause that a fresh lease deed shall also be renewed after expiry of 15 years. Where as it was against the Spirit of lease deed dated 15. 7. 1957. That the defendant corporation without knowl edge and consent of the plaintiffs sub let the property to Mr. Chand Kapoor who is in actual physical possession of the property in dispute. But he is unauthorised occupant. A notice was served on 4. 10. 1986, inter alia, of termination of tenancy. But inspite of receipt of the notice and after expiry of 30 days the property in dispute was not vacated. That in any case the agreement in favour of the, defendant Corporation has expired firstly by efflux of time and secondly by the notice. That the plaintiffs is also entitled for damages at the rate of Rs. 200/- per day. The suit was contested by the appellant/defendant and written statement was filed and the allegations of the plaint were partly denied. However, the execu tion of the lease deed in the year 1957 was admitted. And it has also been admitted-that the lease was executed for a period of 15 years. And the option was exercised by the predecessor-in-interest of appellant for second term of lease for a period of 15 years. Under the original lease deed there was a condition that the predecessor-in-interest shall be entitled to utilize the premises by sub letting solely for the purpose for which property was let out and hence there was no violation of the lease deed by sub letting. From the very inception of the tenancy Petrol Pump in the property was installed and is being used by a sub lessee or a dealer with the knowledge of the plaintiffs. That the appellant has opted before expiry of two terms lease for further renewal of lease and in view of Section 5 (2) read with Section 7 (2) of the Act No. II of 1976 (Parliament ). And in view of this provision the defendant is continuing to be the tenant of the property. That the notice was also illegal. After the enactment of the Act in view of Section 5 (2) read with Section 7 (2) the Burmah Shell (Acquisition of Undertaking in India) Act 1976 the property in dispute vest with the appellant. That the tenancy of the appellant is also protected under Section 29-A of U. P. Act No. 13 of 1972. That with the consent of the landlord defendant erected permanent structure and incurred interest with construction. That the defendant/appellant is not liable to make any damages. That the learned trial Court framed as many as 8 issues for the deci sion of the suit and on the basis of the findings on issue Nos. 1, 4, 6, 7, 2 and 3 the suit was decreed for ejectment of the appellant from the property in dispute. The suit was also decreed for recovery of arrears of rent and expenses of use and occupation and future damages were also awarded at the rate of Rs. 95/- per month. On being aggrieved from the judgment and decree of the trial Court appellant instituted C. A. No. 1 of 1995. And this appeal was also dismissed by the appellate Court vide judgment and decree dated 31. 3. 1998 and the judgment and decree of the trial Court was confirmed. And after being aggrieved from the judg ment and decree of the appellate Court this second appeal has been instituted in the year 1998. I have heard Sri Murlidhar Senior Advocate assisted by Sri Satyendra Nath Srivastava learned Counsel for the appellant and Sri. P. K. Jain, Senior Advocate assisted by Sri Rajesh Kumar Gupta for the respondents and perused the judg ment of the Courts below and pleadings of the parties and evidence oral as well as documentary present on the record.
(3.) FROM the pleadings of the parties as well as from the submission of the learned Counsel for the parties there are certain admitted facts. It is undisputed fact that a registered lease deed was executed in between the parties on 15. 7. 1957. The paper No. 32-A is the original lease deed executed in between the predecessor-in-interest of the plaintiffs and predecessor-in-interest of defendant/appellant. It was also agreed in the lease deed that this lease deed shall be effective for a term of 15 years w. e. f 23. 8. 1957. It is also undisputed fact that the period of 15 years expired on 22. 8. 1971. In view of this lease deed it was provided that if the lessee shall be desirous for renewal this present lease and such desire shall have to be given to the lessor not less than 3 months notice in writing prior to the expiration thereof. The lessor was given notice for renewal of lease deed for a further period of 15 years. Whereas the period commencing after the date of expiry shall be on same rent and same terms and conditions. It is also an undis puted fact that Burmah Shell the predecessor-in-interest of appellant sent no tice in writing to the respondent Smt. Phool wait on 1971 expressing the desire for extension of the period of lease for a further period of 15 years w. e. f. 23. 8. 1971 on the same terms and conditions. But it was also provided in this letter paper No. 14-A "we would like to add a renewal clause similar to the one existing in the current agreement. " Whereas in the original lease deed in para No. 8 it was provided : "if the lessees shall be desirous of renewing this present lease and of such desire shall have given to the Lessor not less than three months' notice in writing prior to the expiration thereof the Lessor shall granted to them a renewed lease of the said premises for a further period of fifteen years to commence from the date of expiry hereof at the same rent and upon the same terms and condi tions in all respects as are reserved and contained herein (excluding only this present covenant for renewal)" It was argued on behalf of the respondent that as the letter No. 14-A was against the condition No. 8 of the original lease deed providing renewal clause similar to the one existing in the current agreement. Hence the lease deed was not extended and it is also an undisputed fact that the lease deed contained this condition and it is also undisputed fact that after the letter dated 6. 5. 1971 the lease deed was not extended beyond 22. 8. 1971. It is also an undisputed fact that in the year 1971 the Burmah Shell (Acquisition of Undertaking in India) Act, 1976 was passed by the Parliament and this Company Burmah Shell was acquired by the Central Government by this enactment. And hence after the enforcement of this Act the defendant/appellant stepped in the shoes of Burmah Shell. Further reliance has also been placed by learned Counsel for the appellant on Section 5 (2) read with Section 7 (2) the Burmah Shell (Acquisition of Undertaking in India) Act, 1976 (hereinafter called as Act No. 2 of 1976 ). And after the enforcement of this Act and presuming tenant of the lease according to terms of the lease deed. A written notice was served by M/s Bharat Petroleum Corporation Ltd. on 5. 8. 1986 expressing the desire for extension of further period of 15 years w. e. f. 23. 8. 1986 with the renewal option of another 15 years. And on the basis of this notice and Act No. 2 of 1976, the learned Counsel for the appellant argued that under these circumstances the lease was deemed to be renewed for further period of 15 years on the same terms and conditions which are mentioned in the earlier lease deed. And it has also been argued that under the provision of Act No. 2 of 1976 the lease was continuing. Hence the notice served for termination of tenancy is ille gal. It has further been argued that no formal execution of the lease deed was required in the circumstance of the case and the renewal was automatic only after showing the desire for further extension of 15 years. And by implementation of the law the lease was extended for further period of 15 years. It has also been argued that in any case otherwise also the construction was raised in the prop erty in dispute with the consent of the plaintiff/respondents and under these cir cumstances the appellant is entitled for the protection of Section 29-A of U. P. Act No. 13 of 1972. Learned Counsel argued that the findings recorded by the Courts below are perverse. And when the findings of the Courts below are perverse then it is immaterial that the Courts below recorded a concurrent finding of fact. That the substantial question of law is involved in the present case.;