TATA IRON AND STEEL CO LTD Vs. ABDUL AHAD

JUDGEMENT

(1.) The chequered history of this case demonstrates how the contesting defendant No. 2 has succeeded in remaining upon the suit land even beyond the period of 30 years mentioned in the original Indenture of Lease, The facts are these. The Tata Iron and Steel Co. Ltd. (hereinafter called the Company), the plaintiff appellant in this second appeal granted a lease to its employee, one Abdul Gani, of the suit land which measures 0.93 acre. The Indenture of Lease (Ext. 7) was executed on the 30th of March, 1937. The lease was for a period of 30 years commencing from the 1st of December, 1935, It expired on the 1st of December, 1965. The purpose of the lease was to allow the said employee to build upon it and he was to pay a nominal ground rent of Rs. 2/13/- per month. In April, 1947 Abdul Gani applied for permission to sell the leasehold property, which could not be transferred in any manner without the written permission of the lessor, namely, the plaintiff Company. Permission was refused. On the 17th of November, 1948 Abdul Gani applied again for permission to mortgage the leasehold interest for a sum of Rs. 50,000 to Shri Ananga Brjoy Mitra, a Pleader practising in the town of Jam-shedpur, who is defendant No. 2 in the action and respondent No. 13 in the appeal. The permission was refused as communicated to Abdul Gani by Ext. 14, a letter written by the Land Officer of the Company on the 25th of February, 1949. In spite of that, Abdul Gani executed a mortgage for Rs. 50,000 in favour of defendant No. 2 on the 12th of March, 1949. The Company filed Title Suit 209 of 1949, but due to there being a formal defect, it applied for permission to withdraw the suit with liberty to institute another. The permission was granted with the liberty as asked for. After the withdrawal of the suit, Abdul Gani died on the 10th of April, 1952 leaving behind a number of heirs, namely, his two widows, some sons and some daughters both married and unmarried. According to the case of the plaintiff Company, two sets of notices were issued and served on the heirs of Abdul Gani, who had come to inherit his leasehold interest. One set of notices was to ask them to remedy the breach committed by Abdul Gani as he had transferred the property by mortgage without the written consent of the lessor. The other set of notices was to determine the lease on the ground of forfeiture. The present suit giving rise to this appeal was filed on the 7th of November, 1952.

(2.) The contesting defendant. No. 2 raised a number of pleas and, if I may say so, all sorts of pleas, whether they had any substance or not. I need not enumerate all those pleas as it is not necessary to do so since most of them have been rejected and rejected rightly by the courts 'below. I may, however, refer to two out of them. They are--(i) that the lease was not determined as the contesting defendant did not accept that a valid notice determining the lease on the ground of forfeiture was served on the heirs of Abdul Gani and put the plaintiff to strict proof thereof and (ii) that Abdul Gani had transferred the property by a usufructuary mortgage to defendant No. 2 after having obtained the permission of the Land Officer on the 15th of February, 1949.

(3.) The learned Munsif who tried the suit held that the letter (Ext. H) said to have been written by the Land Officer granting permission to Abdul Gani was not a genuine letter, no permission had been ever granted by the plaintiff Company to him for transferring the leasehold property. It, however, held against the plaintiff on the question of service of notice because it found that the notice determining the tenancy was not validly served on all the heirs of Abdul Gani. The plaintiff Company went up in appeal before the lower appellate court. Defendant No. 2 filed a cross-objection. In the first instance, on the 25th of August, 1958 the lower appellate Court dismissed the appeal and allowed the cross-objection. It affirmed the finding of the trial Court on the question of notice but reversed it on the question of permission and held Ext. H to be genuine. The plaintiff Company filed Second Appeal 1260 of 1958 in this Court. The appeal was allowed on the 14th of March, 1963 and the case was remanded to the lower appellate Court for fresh decision. This time the lower appellate Court by its judgment dated the 16th of October, 1963 has dismissed both the appeal and the cross-objection. It has held that the notice determining the tenancy was not served separately on all the heirs. It was served on Abdul Ahad, one of the heirs of Abdul Gani. It also held that it was served on some other heirs when the same kind of notice determining the tenancy was served on them by registered post, but yet it was not served on all. Since the principal defendants, namely, the heirs and legal representatives of Abdul Gani, who are defendants 1 series, namely, defendants 1(a) to 1(1) were tenants in common and not joint tenants, service on one or some of them was not sufficient to determine the tenancy. This time the lower appellate Court has held in agreement with the finding of the trial Court that Ext. H, the alleged letter of permission said to have been written on behalf of the Company has not been proved to be genuine. The plaintiff Company has come up in second appeal again.