- (1.) THE second appeal before me which is by a tenant and arises out of a suit for eviction raises a question about the applicability of clause (f) of sub-sec. (1) of see. 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter referred to as the "act", that is, the non-availability of protection under the section on the tenant's renouncing his character as a tenant or by denying the title of the landlord.
(2.) THE subject matter of the suit was a shop situated at Karauli. THE plaintiffs Isharwarlal and Bajranglal who were brothers, had purchased this shop from one Rama Kishan Babulal by a registered sale deed dated 16. 10. 68. THE defendants Moolchand and his son Radhey Shyam were said to be the tenants of the transferor Ramakishan Babulal on a monthly rent of Rs. 1. 25 paise. THE transferor gave notice of the sale of the property to the defendant-tenants intimating that the shop had been sold to the plaintiffs Ishwarlal and Bajranglal and thereafter the tenants should pay rent to them. THEn the plaintiffs served a notice on 13-9-68 on the defendants terminating the tenancy in accordance with see. 106 Transfer of Property Act and then filed a suit for arrears of rent and eviction on 23-12-68. THE eviction of the defendants was sought on two grounds namely, default in payment of rent and bona fide personal necessity of the landlords. On 20-3-62, however, the plaintiffs filed an amendment application seeking permission of the court for taking an additional ground for ejectment namely, that the defendants having repudiated the title of their landlords by their notice Ex. 4 dated 30-10 68 served through Shri Basant Kishore Bhargava, Advocate, they were liable to be evicted. The defendants admitted that they were the tenants of the plaintiffs, but they denied that they were in default in paying the rent or that the landlords had the personal necessity for the suit shop. They also denied that the notice Ex. 4 had been served by Basant Kishore Advocate under their instructions. The learned Munsif formed the following issues: 1 vk;k izfroknhx. k dh fdjk;snkjh eklhd u gksdj LFkk;h Vsusulh gs vksj oknhx. k nqdku [kkyh djkus dk vf/kdkjh ugha gs\ 2 vk;k oknhx. k dks okn xzlr nqdku dh ;qf;q rfkk oklrfod futh vko';drk gs\ 3 vk;k oknhx. k }kjk fn;k uksfvl bfu[kykq vos/k gs\ 4 vk;k izfroknhx. k ds firk us nqdku eqruktk cukus esa ,d gtkj :i;s [kpz fd, vksj oknhx. k fcuk ,d gtkj :i;s fn, nqdku [kkyh ls ,lvkim estopped gs\ 5 vk;k izfroknh us fdjk;snkjh ls budkj fd;k gs\ 6 vk;k izfroknh us vius nkf;ro ls budkj djrs gq, fdjk;k tek djk gs] vr% og fmqkwyvj gs\ 7 vuqrks"k\ Both the parties adduced their evidence. The learned Munsif, however, dismissed the suit holding that neither there was any default in the payment of rent nor were the plaintiffs able to prove their bona fide personal necessity and further it has not been shown that the defendants had repudiated the title of the landlords to the suit property. Aggrieved by the decree of the learned Munsif the plaintiffs went up in appeal to the court of Additional District Judge, Gangapur City. Learned counsel for the plaintiffs pressed only one point and it was that the defendants having repudiated the title of the landlords and having set up their own title in the suit property had disentitled themselves from the protection claimable under sec. 13 of the Act. The learned Judge put reliance on the testimony of Shri Basant Kishore. Advocate in this regard. He observed that although Shri Basant Kishore could not say as to which of the defendants had approached him for giving a reply to the notice of the transferor landlords there was no reason to believe that notice was given by Shri Basant Kishore without the defendants' instructions. Apart from this the learned Additional District Judge referred to two entries from the Municipal records relating to house-tax which has been proved by the testimony of P. W. 4 Ranjit Pal. He stated that the entries Exs. 6 and 7 had been made by him according to what the defendants had stated. One was an entry of 1961 and, according to Ranjit Pal, it was Mathura who stated that the shop belonged to him. The other entry was of the year 1968 which was made at the instance of Mool Chand. Accordingly, the learned Judge came to the conclusion that the defendants had repudiated the title of their landlords by setting up a title in themselves and had consequently disentitled themselves from the protection under the Act. In the result, the learned Judge set aside the decree of the learned Munsif and passed a decree of eviction in favour of the plaintiffs and against the defendants. It is in these circumstances that the defendants have come in appeal to this Court. Learned counsel for the appellants has argued, in the first place, that the court below was in error in holding that the defendants had renounced the landlords title. He submitted that the evidence of Shri Basant Kishore Bhargava was not at all sufficient for holding that he had given the notice Ex. 4 on instructions by the defendant. As regards the entries Exs. 6 and 7 as also regarding the testimony of P. W. 4 Ranjit Pal, learned counsel argued, that the entries or for that matter what Ranjit Pal stated did not amount to disclaimer. Apart from this, according to learned counsel as this was not brought to the notice of the landlords it was not at all sufficient for the purposes of entailing forfeiture of tenancy. In the second place, learned counsel contended that the provisions of clause (f) of sub-sec. (1) of sec. 13 of the Act were almost a reproduction of the provisions of sec. 111 (g) of the Transfer of Property Act. It was, therefore incumbent on the landlords to have issued notice of forfeiture of the tenancy on the ground of disclaimer of landlord's title. In this behalf learned counsel pointed out that the provisions of the Transfer of Property Act being in addition to the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (vide sec. 28 thereof) they were required to be complied with even if for arguments sake it were accepted that the tenant was not entitled to the protection under sec. 13 of the Act. Learned counsel placed reliance on a number of cases, such as, Ramgopal vs. Mangla (l), Ranumal vs. Municipal Council, Ajmer (2), State vs. S. S. Devi (3)", Laxmi S. & W. Mills vs. Mohammed Ibrahim (4), Chandra Nath vs. Chulai Pashi (5) & Raman Nair vs. Mariyamma (6 ). The main point that falls for consideration is whether to disentitle a tenant from the protection of sec. 13 of the Act on the ground of renouncement of his character as a tenant or denial of the title of the landlord in the property, it is incumbent on the landlord to serve the tenant with a notice under sec. 111 (g) of the Transfer of Property Act. The material portion of sec. 13 of the Act may be quoted : " S. 13. Eviction of tenant (1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied (f) that the tenant has renounced his character as such or denied the title of the landlord and the latter has not waived his right or condoned the conduct of the tenant; or " Sec. 28 of the Act provides that the provisions of this Act shall be in addition to and not in derogation of any other law on the subject for the time being in force in the whole or any part of Rajasthan. Learned counsel, therefore, emphasises that in order to secure eviction of the tenant the landlord must fulfil the conditions prescribed by the relevant provisions of the Transfer of Property Act. Sec. 106 of the Transfer of Property Act lays down how a lease may be determined. It provides that in the absence of any contract or local law or usage to the contrary, a lease of immoveable 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 immoveable 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 end of a month of the tenancy. The relevant portion of sec. 111 reads : " S. 111. Determination of leasea lease of immoveable property determines (g) by forfeiture ; that is to say (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may reenter ; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease. (h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other. " The reading together of see. 106 and sec. 111 (h) shows that with the service of a proper notice the lease shall stand determined on the expiration of the notice. Sub-sec. (g) of sec. 111 provides that in the case of the lessee renouncing his character as such by setting up a title irk a third person or by claiming title to himself the lease shall be determined by forfeiture, on the lessor or his transferee giving notice in writing to the lessee of his intention of determining the lease. In the present case the londlord has not determined the lease by forfeiture under clause (g) of sec. 111, but the lease has been determined under clause (h) of sec. 111 by serving a notice in accordance with sec. 106 of the Transfer of Property Act
(3.) IN this context the question arises, as already observed, whether the defendant cannot be disentitled from the protection of sec. 13 of the Act as long as a notice of forfeiture under clause (g) of sec. 111 of the Transfer of Property Act is not given by the landlord and the determination of the lease by a notice under sec. 106 Transfer of Property Act would not be enough. No direct authority which may help in solving this problem could be brought to my notice. The question has, therefore, to be decided in the light of the statutory provisions and the general principles. A person has a fundamental right to hold his property and this will include his right to derive benefits from his property. It cannot be gainsaid that the rent control legislation imposes a restriction on such a fundamental right. The restrictions are undoubtedly in the interest of the general public and there is do manner of doubt that they are reasonable, but it cannot be lost sight of that what is fundamental is the fundamental right and not the restrictions. The protective provisions contained in sec. 13 of the Act are with a view to help the tenants who have been considered a weaker section in society in comparison to the landlords. Nevertheless the restrictions or protection being made available only on fulfilling certain essential conditions, it shall be necessary for the party claiming the benefit of such restriction to show that his case is covered by such restrictions and that he has not done anything which disentitles him from the protection. Clause (f) of sub-sec. (1) of sec. 13 of the Act lays down a condition that would disentitle the tenant from claiming the protection of the Act. To my mind, the general law is that once a tenancy has been determined in accordance with the provisions of sec. 111 of the Transfer of Property Act the landlord is entitled to evict the tenant who after the determination of the tenancy is no longer a tenant. It is only the provisions of the Rent Control legislation that steps in on the determination of the tenancy and by fiction of law the tenant becomes a statutory tenant, but so far as the protection under sec. 13 is concerned, the tenant must fulfil the conditions thereof and should not be found to have done anything which disentitles him from the protection of sec. 13. Viewed in this light, I am afraid it was not necessary for the landlord to have served a notice of forfeiture under clause (g) of sec. 111 of the Transfer of Property Act on the tenant. Sec. 111 deals with determination of leases or tenancies whereas sec. 13 deals with the conditions under which protection against eviction can be claimed. If the lease were not determined in accordance with clause (h) of sec. 111 of the Transfer of Property Act by serving a notice under sec. 106 of that Act, then without there being a proper notice of forfeiture the landlord would not be able to evict the tenant, but once a lease has been determined by a notice under sec. 106 of the Transfer of Property Act and it is also found that the tenant has done something which disentitles him from claiming the protection of the Act, as in the present case, by renouncement of his character as a tenant and by denial of the landlord's title then I do not understand why a notice of forfeiture would still be required. The provisions of sec. 13 are not controlled or restricted by the provisions of the Transfer of Property Act. Though the provisions of the Act are in addition to and not in derogation of any other law on the subject, it cannot be overlooked that sec. 13 begins with a non-obstante clause and it has to prevail over other analogous provisions elsewhere. Sec. 28, to my mind, only means that the Act is in addition and not in derogation of any law on the subject namely, that its provisions do not amend, repeal, supersede or otherwise affect any other provisions, but inspite of that so far as the applicability of sec. 13 is concerned it will prevail over any other provision. I am, therefore, unable to accept the contention of the learned counsel that notice of forfeiture under sec. 111 (g) of the Transfer of Property Act was required when there was a determination of tenancy under clause (h) of sec. 111 by a notice under sec. 106 of the Act. 15. Learned counsel for the appellants further argued that after the determination of the tenancy the appellant-tenant has never renounced his character as a tenant or denied the title of the landlord and, therefore, he has not incurred the disqualification against the availability of the protection under sec. 13 of the Act. To my mind, clause (f) of sub-sec. (1) of sec. 13 of the Act shall take in even renouncements occurring prior to the determination of the tenancy as well as those after it. There are no words of limitation in the section to restrict the operation of this clause to renouncements occurring after the determination of tenancy only. I may now briefly refer to the cited cases. Ramgopal's case (l) deals with a case where tenancy was determined by forfeiture and it was pointed out that lessor was bound to give a notice in writing to the lessee of his intention to determine his lease and thus only the lease can be said to have been determined. This case, therefore, is not relevant for the present purpose. The same thing applies to Ranumal vs. Municipal Council, Ajmer (2 ). In State vs. S. S. Devi (3), it was pointed out that the notice contemplated by sec. 111 (g) is not one contemplated by sec. 106 of the Transfer of Property Act. This case too is thus not of any help. ;