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Judgment
I. Mahanty, J.—The present appeal has been filed by the Appellant-Allahabad Bank u/s 96 of the CPC seeking to challenging the Judgment & decree dated 10.8.2006 passed by the First Addl. Civil Judge (Senior Division), Cuttack in Civil Suit No. 116 of 2003 whereby, the Trial Court decreed the suit in favour of the Plaintiff & directed eviction of the Defendants (Appellant herein) & further directed payment of arrear & current house rent as well as damages in favour of the Plaintiffs.
Shorn of unnecessary details based on the pleadings of the respective parties, the Trial Court framed the following issues:
(i) Whether the suit is maintainable under law?
(ii) Whether there is any cause of action to bring this suit?
(iii) Whether the suit is barred by law of limitation?
(iv) Whether the Plaintiff is a co-sharer landlord of the suit premises?
(v) Whether the Plaintiff is entitled to realize the arrear & current rent & damage as claimed?
(vi) Whether the notice u/s 106 of the T.P. Act is valid an applicable against the present Defendants?
(vii) Whether the Defendant-Bank is to be evicted from the suit premises?
(viii) To what other relieves the Plaintiff is entitled?
The Trial Court considered the aforesaid issues & reached the findings based on the pleadings, documents as well as the oral testimonies & answered all the issues in favour of the Plaintiffs & against the tenant (Appellant-Bank). Hence the present appeal.
Sri S.K. Padhi, Learned Senior Counsel appearing for the Appellant-Bank raised the following contentions at the time of hearing for consideration:
(a) There can be no transfer of any right, title & interest on an ancestral property in favour of any other person, except valid registration documents & the Plaintiff herein had no right, title & interest over the property into which the Appellant-Bank had been inducted as tenant-lessee.
(b) The Trial Court had erred in law by accepting the collusive decree, obtained in a partition suit in T.S. No. 99 of 1995 & hence, the Plaintiff had no locus standi to maintain the suit against the Bank.
(c) Since the Plaintiff had no locus standi to prosecute a suit either for eviction or for the claim for rent/damages, consequently, the Plaintiff had no right u/s 106 of the Transfer of the Property Act (in short the ''Act'').
(d) He further contended that in any event the direction issued by the Trial Court to pay damages equal to that of the rent, is wholly illegal since the Trial Court had also directed payment of rent for the entire period for which the Appellant-Bank was in possession of the suit schedule property & until handing over of vacant possession in terms of the decree.
Sri B.K. Mohanty, Senior Advocate for the Defendants, on the other hand, submitted that all the aforesaid contentions raised by the Appellants-Bank had been dealt with by the Trial Court, on its own merits & the Trial Court had come to a conclusion after discussing the necessary legal provisions as well as the case laws. Therefore, there was no merit whatsoever in the contentions raised by the Bank. He advanced various arguments opposing the contentions raised by the Appellans- Bank & further submitted that, in the facts of the present case even if the contention of the Bank that it had a right to continue in possession, the same would be at best be based on an agreement signed between the parties on 30.9.1999 only (without admitting) & since the said period has already come to an end, there is no legal basis on the Appellants-Bank to continue in possession of the premises.
In view of the submissions/contentions as advanced by the Learned Counsel appearing for the rival parties, the undisputed facts leading up to the filing of the suit by the Plaintiff (Respondent herein) are narrated hereunder:
A. On 15.2.1988, an agreement was entered into between Defendant No. 4 in C.S. No. 116 of 2003 (Landlord) & the Appellant-Bank for tenancy of the single storied building situated over the suit land measuring 2753 square feet on a monthly rent at the rate of Rs. 2.50 paisa per square feet.
B. On 15.3.1991, the Bank approached the Defendant No. 4 for construction of the first floor of the building so that banking transaction can be shifted to the first floor & the bank can utilize the ground floor for its currency chest & other allied purposes.
C. Defendant No. 4 wrote a letter to the Appellant-Bank expressing willingness to construct the currency chest in the ground floor as well as the additional construction on the first floor as per the drawing provided by the Bank, indicating that the minimum rent of the ground floor would be Rs. 5.33 paisa per square feet out of which Rs. 2.08 paisa would be deducted towards the repayment of advance sought from the Bank for carry out the necessary modification/construction & balance Rs. 2.25 paisa per square feet would be paid to the landlord- Defendant No. 4.
D. Defendant No. 4 carried out the necessary modification/construction in anticipation of the acceptance of the proposal made by him. No final decision thereto could be taken by the Bank in spite of several visits by Defendant No. 4.
E. In T.S. No. 99 of 1995, family partition suit between the Plaintiff-wife & Defendant No. 4-husband decreed on compromise jointly allotting the said property in favour of the Plaintiff as well as Defendant No. 4 as 50:50.
F. In 28.7.1995, the Appellant-Bank informed about the decree in T.S. No. 99 of 1995 &-about equal share between the Plaintiff & Defendant No. 4 w.e.f. 1995-96. Defendant No,4-husband admits such claim of the Plaintiff & has addressed a letter to the Appellant- Bank under Exhibit-5. Plaintiff also addressed a similar letter under Exhibit-6 to the Appellant-Bank & under Exhibit-9 issued by the Appellant-Bank, the Bank admits joint ownership of the Plaintiff & Defendant No. 4-husband, Accordingly, joint account was opened in the Appellant-Bank itself between the Plaintiff & Defendant No. 4 for which all rents due to the landlord were admittedly deposited by the Appellant.
G. On 1.10.1994, the provisional lease agreement was executed by the Appellant-Bank entered into between the Appellant-Bank & Defendant No. 4 (Respondent No. 2 herein).
H. On 30.3.1999, the Plaintiff in view of the escalation of the building materials & labour charges requested the Bank to increase the rent to Rs. 9.00 per square feet & also requested to convey the Bank''s acceptance at the earliest. The Defendant No. 4 repeatedly assured by the Bank Officers that their offer would be accepted by the Head Office & suggested taking into provisional agreement subject to final acceptance by the Bank''s Head office.
I. On 8.11.2001 that the Appellant-Bank did not finalise the provisional lease agreement dated 1.10.1 994 & since in the mean time the Plaintiff''s right to 50% of the property (tenanted to the Appellant) was declared in T.S. No. 99 of 1995 & the same was accepted by the Bank. A meeting was held, attended by the Plaintiff, Defendant No. 4 & the Manager of the Defendant-Bank as well as other officers of the Bank including the legal Manager, it was agreed at the said meeting that the rent for the ground floor which was agreed between the parties as follows:
Period Floor
1.10.1994 to 30.9.1999 : Ground Floor- Rs. 7.50 Paisa per Sq. feet First floor - 5.50 Paisa per Sq. feet 1.10.2004 to 30.9.2009 25 % escalation on aforesaid rent 1.10.2004 to 30.9.2009 25 % escalation on aforesaid rent
50 % of the arrear rent shall be adjusted towards the loan account & the said agreement was made subject to the approval of the Appellant''s head office.
It is most important to note herein that a minutes of the said meeting was duly signed by both the Plaintiff-wife as well as Defendant No. 4-husband apart from the various officers of the Appellant-Bank.
J. On 26.5.2002, the Appellant-Bank not accepting the terms arrived at the meeting on 8.11.2001 & suggesting reduction of the rent & also seeking alterations of various conditions agreed to at the said meeting.
K. On 30.7.2002, since the Plaintiff did not agree to the suggestion of the Bank contained in its letter dated 26.5.2002, on instruction of the Bank, the Plaintiff''s advocate sent notice u/s 106 of the Act terminating the tenancy w.e.f. the end of September, 2002 & seeking vacation of the suit premises as well as the arrear rent & damages.
In the aforesaid factual matrix, it is now essential to deal with the contentions raised by the Learned Counsel for the Appellants. The first contention raised by the Appellant has been dealt with by the Trial Court while dealing with the Issue No. 4 relating to the issue as to whether the Plaintiff is a co-lessor of the suit property. In this respect, the Trial Court took into consideration in the decree passed in the Partition Suit i.e., T.S. No. 99 of 1995,where the Plaintiff became the owner of 50% of the suit schedule property. On perusal of the oral evidence as well as the documentary evidence, available on record, vide Judgment & decree passed by the Learned Civil Judge (Sr. Division), First Court, Cuttack in T.S. No. 99 of 1995, the said premises (tenanted premises) was allotted in favour of the Plaintiff & her husband-Defendant No. 4 (Respondent No. 2). There is no dispute that the Appellant-Bank was duly informed by the Plaintiff as well as Defendant No. 4, vide letter dated 28.7.1995 informing to the Appellant-Bank about the decree passed in T.S. No. 99 of 1995 that both of them had equally share in the tenanted premises. Accordingly, the Bank was also requested to release the rent to both the Plaintiff & her husband-Defendant No. 4 "equally" with effect from beginning of the financial year 1995-96. Defendant No. 4-husband (Respondent No. 2 herein) was examined as D.W.1 & admitted such claims of the Plaintiff. The suit i.e. T.S. No. 99 of 1995 was disposed of on 24.7.1995 on compromise under Exhibit.4. Under cover of the letter under Exhibit-5, Defendant No. 4 intimated the Bank of ,the outcome in T.S. No. 99 of 1995. The Plaintiff under cover of her letter Under Exhibit-6 also informed the Appellant-Bank about the share allotted in her favour in the aforesaid partition suit. In fact, by letter in Exhibit-9 issued by the Appellant-Bank, the Bank has clearly admitted the joint ownership of the tenanted premises by the Plaintiff. Even the minutes of the meeting dated 8.11.2001 (Exhibit-10) clearly discloses that the Bank accepted the Plaintiff as co-lesser in respect of the suit premises & on the contrary, the Appellant-Bank has not brought on record any oral or testamentary evidence challenging or even questing the claim of ownership of 50% of the tenanted premises by the Plaintiff. Instead, the documentary evidence on record, clearly indicates the acceptance by the Appellant- Bank of the status of the Plaintiff as 50% owner of the tenanted premises as well as co-lesser.
On consideration of the aforesaid facts, the Trial Court came to a conclusion that the Plaintiff had become a "co-lessor" with effect from 24.7.1 995 & of the suit premises while confirming the aforesaid conclusion reached by the Trial Court, we are left with no other option, other than to reject the Appellant-Bank''s contention as noted hereinabove.
In so far as the second contention is concerned, the same is directly covered by the facts dealt with while dealing with the first contention. No question of collusive suit was ever raised by the Appellant Bank & for the first time was raised as a defence by the Bank while filing its written statement. Therefore, the Appellant-Bank had no locus-standi vis-a-vis the determination of rights in the said partition suit & in the facts of the present case, the Plaintiff''s locus standi having been accepted by the Bank, by the act of the Bank participating in the meeting with her under Exhibit-10 dated 8.11.2001, the Appellant cannot be permitted to raise such a contention at the present stage. In other words, the Bank cannot be permitted to reprobate & approbate at the same time. The facts of the present case clearly indicates that since 1995,the Bank accepted the Plaintiff, as part owner of the suit property & permitted the opening of a joint bank account in the Plaintiff & Defendant No. 4 in their own bank. Further, the Appellant-Bank deposited the rental due for the tenanted premises in such a joint account. Apart from the above, the Bank accepted the Plaintiff as a party at its Meeting held on 8.11.2001. Even though the terms of agreement entered into between the parties including the Plaintiff on 8.11.2001, was ultimately found not to be acceptable by the Head Office on 30.7.2002, at no earlier point of time, the Bank has ever questioned the locus standi of the Plaintiff, except in the present suit while filing its written statement. In this respect, reliance was also to be placed on the Judgment of the Hon''ble Supreme Court in the case of Mohar Singh (Dead) by Lrs. Vs. Devi Charan and Others, & the relevant paragraph is quoted hereinbelow:
Though a landlord cannot split the unity & integrity of the tenancy & recover possession of a part of the demised premises from the tenant, but Section 109 of the Transfer of Property Act provides a statutory exception to this rule. It enables an assignee of a part of the reversion to exercise all the rights of the landlord in respect of the portion respecting which the reversion is so assigned subject, of course, to the other covenant running with the land. This is the true effect of the words "shall possess all the rights...of the lessor as to the property or part transferred...." occurring in Section 109. There is no need for a consensual attornment, The attornment is brought about by operation of law. The limitation on the right of the landlord against splitting up of the integrity of the tenancy, inhering in the inhibitions of his own contract, does not visit the assignee of the part of the reversion. There is no need for the consent of the tenant for the severance of the reversion & the assignment of the part so severed. This proposition is too well settled to require any further elucidation or reiteration.
With the aforesaid reasons as well as the case law noted hereinabove, we find no merit whatsoever in the second contention raised by the Appellants as well &, therefore, reject the same.
In so far as the third contention raised by the Learned Counsel for the Appellant is concerned, the same is indirectly linked with the first & second contentions, dealt with by us hereinabove. In this respect reference needs to be made to the findings arrived at the Trial Court in so far as Issue Nos. 5, 6 & 7 are concerned. In this respect the Trial Court took into consideration Exhibits 3, 10 & 13 as well as the Judgment of the Hon''ble Supreme Court in the case of Biswabani Pvt. Ltd. Vs. Santosh Kumar Dutta and Others, & come to hold that, in view of the provision of the Transfer of Property Act, the "tenancy" in question was to be treated as from "month to month". While there was no doubt that the Appellant-Bank had been in possession of the suit property for more than 15 years (by now more than 22 years) since the tenancy was held to be one from "month to month" such lessee/tenancy could be terminated after giving 15 days notice, expiring with the end of the month of the tenancy either by the landlord or by the tenant. Such a notice was essential to bring to an end, the relationship between the landlord & tenant. It is well settled that the landlord is permitted to seek eviction of the tenant & seek vacant possession of the premises, only after a notice u/s 106 of the Act is issued. Exhibit-14, notice dated 30:7.2002 sent by the advocate for the Plaintiff & Defendant No. 4 to the Appellant-Bank satisfies the requirements of Section 106 of the Act.
Mr. B.K. Mohanty, Learned Counsel for the Respondents strenuously urged that the damages were due & payable to the Plaintiff since the Appellant-Bank had not acted in terms of the notice issued to it u/s 106 of the Act & the continuation of the possession by the Appellant-Bank of the suit scheduled premises, beyond the date stipulated in the notice u/s 106 of the Act, being held to be totally unlawful, no argument against levy of damages should be entertained. He also submitted that the market rent for the premises, is far above the rent payable/fixed by the Trial Court & consequently, the directions to pay damages to the Appellant-Bank is in effect compensation to the Plaintiff for the apparent loss of house rent, which may otherwise have been available to the Plaintiff.
In so far as the fourth contention raised by the Appellant-Bank is concerned, we have perused the impugned Judgment. The Trial Court after reaching a conclusion, insofar as, the issues are concerned, came to determine the amount of rent to be payable to the Plaintiff, as well as, whether the Plaintiff is entitled to its claim for damages or not. this respect, the trial ,Court considered Exhibit -13 & the various amounts originally agreed to between the parties, as well as Exhibit-10 vis-a-vis the rent agreed to between the parties, subject to the approval of the Head Office & thereafter, came to hold that since Exhibit-10 contained a clause that the said agreement was subject to the approval of the hither authorities of the Bank, the same could not be accepted as "agreed rent" between the parties for the suit premises.
However, after scrutiny of the oral & documentary evidence on record, the Trial Court came to a conclusion that, as the Bank did not agree to the enhanced rent as per Exhibit-10 but had agreed to the rent as suggested by it under Exhibit-13, fixed the rent until 31.8.2002 (i.e. the date for eviction as per notice) in terms of the rent suggested by the Bank under Exhibit-13 & from 1.9.2002 directed payment of rent at the enhanced calculated amount in terms of Exhibit-10. Of course, further to the aforesaid direction & taking into consideration the fact, the Appellant-Bank''s possession of the suit scheduled property was held to be unlawful with effect from 1.9.2002, the Trial Court, therefore, also directed payment of damages for such unlawful possession equal to that of the rent of the building.
It is our considered view that, once the Trial Court had directed the Appellant-Bank to hand over the possession of the suit premises to the Plaintiff within two months from the date of the order & since the Appellant-Bank was held liable to pay rent at the enhanced rate to be calculated as per Exhibit-10 from 1.9.2002 onwards (obviously till handing over of the vacant possession), we are of the considered view that there was no justification in directing further payment of damages in addition to the enhanced rent payable by the Appellant-Bank in terms of the decree. In other words the Trial Court had already awarded damages to the Plaintiff by directing payment for the period of possession beyond 1.9.2002 only to be computed on the basis of the "enhanced rent" on the basis of Ext. 10 &, therefore, insofar as the said contention relating to payment of damages by the. Bank is concerned, we are in respectful disagreement with the finding reached at by the Trial Court & set aside that part of the Judgment & decree directing payment of damages. We make it clear that while no damages shall be payable by the Bank in terms of the aforesaid Judgment & decree, yet, the Appellant-Bank shall be liable to pay rent at the enhanced rate as per Exhibit-10 to be calculated from 1.9.2002 until handing over of possession of the property of the Plaintiff.
Therefore, in conclusion, we are of the considered view that all the finding arrived at by the Trial Court, in the impugned Judgment/decree are in consonance with law & do not merit any interference, apart from, the direction relating to the payment of "damages" (as referred hereinabove). Hence, the appeal stands disposed of by affirming the Judgment of the Trial Court but modify to the extent as indicated hereinabove insofar as the direction to pay damages is concerned.
Accordingly the Appellant-Bank is directed to hand over the vacant possession of the suit scheduled properties to the Plaintiffs (Defendants herein) by 30.6.2010 & compute & pay the rental dues in terms of the directions of the Trial Court modified to the extent hereinabove, by 31.8.2010.
L. Mohapatra, J.
I agree.