TMI Blog2020 (3) TMI 1247X X X X Extracts X X X X X X X X Extracts X X X X ..... the Reference Court was apportionment of compensation and such issue having been decided against the defendant, the reference to notice for termination of tenancy does not operate as res judicata. Therefore, the finding recorded by the High Court that the order of the Reference Court operates as res judicata was clearly not sustainable. The first substantial question of law has been, thus, wrongly decided. If the first question is answered in the negative, whether the suit filed by the Respondent for possession is barred by time? - HELD THAT:- In terms of Section 62 of the Evidence Act, primary evidence means a document itself produced for inspection by the Court. Section 64 of the Evidence Act stipulates that documents must be proved by primary evidence except in certain cases when secondary evidence can be led. The defendant has not led any evidence, including secondary evidence of the alleged notice said to be served by the plaintiffs. In the absence of primary or secondary evidence available in the suit for possession, the reference to such notice as the starting point of limitation is clearly erroneous and not sustainable. The suit of the plaintiffs filed within 12 ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Biswas out of Khasra No. 9/19 and 16 Biswas out of Khasra No. 9/20/2, in total measuring 2 Bighas 15 Biswas was taken on lease for 20 years commencing from 23 rd September, 1954 till 22nd September, 1974 on payment of ₹ 235/per year by Jagdish Prasad, the defendant. It was agreed between the parties that it will not be open to the plaintiff-lessor to seek ejectment of the defendant-lessee from the leased premises, however, if the rent for one year remained in arrear, then the lessor would have the right to eject the lessee. The relevant conditions read as under: 7. Before the expiry of said lease it shall not be within the rights of the lessor i.e., party of the First Part to seek ejectment of party of the second part from the leased premises. xx xx xx 9. If rent for one year remains in arrears, then in that eventuality the lessor i.e., party of the First Part will have the right to eject the lessee i.e., party of the Second Part from the property leased and the party of the Second Part will remove all his malba from the land leased and deliver vacant possession to the party of the First Part. 4. The entire leased land was acquired pursuant to the notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21st October, 1961 (Ex.PW1/12), held that the respondent had not paid rent for more than 12 months and, thus, in accordance with clause 9 of the lease deed, the lease had come to an end. Therefore, the defendant had no right to claim a share in the compensation payable for the land leased to them. The Reference Court held as under: 8. Jagdish Chand as R.W.4 has admitted that he did not pay any rent to Nand Ram and Bhagwan after the receipt of the notice for acquisition of the land. Nand Ram as A.W.2 has state rent has not been paid to him for two years and that he served a notice also on the lessee. Under clause 9 of the lease deed Ex.A/15, the lease is to come to an end in case rent is not paid for 12 months. From the evidence on the record it is proved that Ram Chand and Jagdish have not paid rent for more than 12 months and thus in accordance with clause 9 of the lease deed their lease had come to an end and therefore they have no right to claim a share in the compensation payable for the land leased out to them. I decide this issue against Jagdish Prasad and Ram Chand. 7. It may be stated that a part of the land acquired, comprising in Khasra No.9/19 was de-notified vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admissions by the defendant that the plaintiffs are owners of the suit land and that the defendant was a lessee of the same under a registered lease deed dt.22.9.54 under Nand Ram and Bhagwana. Thus, issue No. 3 is decided in favour of the plaintiff and it is hereby held that the land in suit falls in Khasra No.9/19 Village Tatarpur, Delhi and that the plaintiffs are the owners of the same, as mere receipt of compensation for acquisition of land which has been denotified from acquisition does not in any manner make the plaintiff any less the owners of the land in suit. In any event the plaintiffs are certainly the landlords of the land in suit in terms of Ex.PW1/14 the lease deed, executed between Bhagwana and Nand Ram, and the defendant, and execution thereof having been admitted in the claim of the defendant in Ex.PW5/1. 10. In appeal against the said judgment and decree, the defendant moved an application under Order VI Rule 17 of the Civil Procedure Code, 19082 to amend his written statement and asserted that the suit was barred by limitation under Article 66 of the Schedule to the Limitation Act, 19633. The defendant asserted that the lease had come to an end when a not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no dispute to this factual submission which is even otherwise a part of the record. In these circumstances, it cannot be said that this finding Ex.PW1/12 was only an incidental or obiter observation made by the Land Acquisition Court/ADJ which is not binding on the parties. Ex.PW1/12 had while adverting to the notice dated 13.9.1960 categorically held that lease between the parties stood determined in terms of clause 9. 14. The High Court further held that period of limitation under Article 67 of the Limitation Act is 12 years, the period for which commences from the date when the tenancy is determined. Since the tenancy was determined on 23th September, 1960, the suit filed on 13th March, 1981 was beyond the period of limitation. 15. Mr. Vishwanathan, learned senior counsel for the appellants raised two-fold arguments. First, that Harpal Singh, one of the plaintiffs, died on 4th December, 1997 during the pendency of the appeal before the First Appellate Court. Since his legal representatives were not brought on record, the appeal stood abated. Consequently, the High Court could not have entertained the second appeal and reversed the judgment and decree passed by the F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lease stood determined. The reliance is placed upon the findings recorded by the High Court that the tenancy stood terminated vide notice dated 13th September, 1960 (sic 23rd September, 1960). Therefore, the period of limitation commenced from the date of the notice terminating the lease or in any case from the date of the award of the Reference Court, thus, the suit filed by the plaintiffs was barred by limitation. 18. We have heard the learned counsel for the parties. The question that is required to be examined is as to which Article of the Limitation Act would be applicable in the present case i.e. Article 65, as asserted by the appellants or Articles 66 or 67, as asserted by the respondent and that from which date the period of limitation would commence. For convenience, the Articles are reproduced hereunder: Description of Suit Period of Time from which limitation period begins to run 65. For possession of immovable Twelve When the possession property or any interest therein years of the defendant based on title. becomes adverse to the plaintiff. 66. For possession of immovable Twelve When the forfeiture is property when the plaintiff has years incurred or th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of each case. A material test to be applied is whether the court considers the adjudication of the issue material and essential for its decision. 21. This Court in Sajjadanashin Sayed approved a decision by the Privy Council reported as Run Bahadur Singh v. Lucho Koer ILR (1885) 11 Cal 301 : 12 IA 23 (PC) wherein claim of rent from a tenant on the basis survivorship of Joint Hindu Family property was raised by c brother of the deceased. Two issues were framed in such suit ( 1) whether the deceased alone received the whole rent of the property in his lifetime, or whether the rent was received by him jointly with his brother C; (2) whether any rent was due and if so, how much was due from B. The finding on the first issue was that the deceased alone received the whole rent in his lifetime. Subsequently, C sued the widow for declaration that he and his brother were joint, and he claimed the property by right of survivorship. The question arose whether the deceased and C were joint or separate. The earlier finding was held not res judicata inasmuch as the matter was not directly and substantially in issue in the earlier suit. It was in issue in the earlier suit only collatera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the controversy. In holding that a matter ought to have been taken as a ground of attack or defence in the earlier proceedings, the court is indicating that the matter is of such a nature and character and bears such a connection with the controversy in the earlier case that the failure to raise it in that proceeding would debar the party from agitating it in the future. (emphasis supplied) 23. The issue in the proceedings under Section 30 of the Act, before the Reference Court was restricted to the apportionment of compensation, consequent to the acquisition of the leased land. The argument was raised that the lessee had another 14 years of the lease period, therefore, the lessee claimed compensation in lieu of the unexpired lease period. The issue was restricted to the payment of compensation on account of the unexpired period of lease. The issue in question was not the title of the appellants or the eviction of the respondent. Still further, the finding of the Reference Court, as reproduced above, is that the respondent had no right to claim a share in the compensation. The entitlement of the appellants to claim possession from the tenant was not an issue in the previous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim of right from its very nature depends upon proof of facts and application of the relevant law thereto. A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue. When it is said that a previous decision is res judicata, it is meant that the right claimed has been adjudicated upon and cannot again be placed in contest between the same parties. A previous decision of a competent Court on facts which are the foundation of the right and the relevant law applicable to the determination of the transaction which is the source of the right is res judicata. A previous decision on a matter in issue is a composite decision: the decision on law cannot be dissociated from the decision on facts on which the right is founded. A decision on an issue of law will be as res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a period of 20 years. The lease period expired on 23 rd September, 1974. Even if the lessee had not paid rent, the status of the lessee would not change during the continuation of the period of lease. The lessor had a right to seek possession in terms of clause 9 of the lease deed. The mere fact that the lessor had not chosen to exercise that right will not foreclose the rights of the lessor as owner of the property leased. After the expiry of lease period, and in the absence of payment of rent by the lessee, the status of the lessee will be that of tenant at sufferance and not a tenant holding over. Section 116 of the TP Act confers the status of a tenant holding over on a yearly or monthly basis keeping in view the purpose of the lease, only if the lessor accepts the payment of lease money. If the lessor does not accept the lease money, the status of the lessee would be that of tenant at sufferance. This Court in the judgments reported as Bhawanji Lakhamshi and Others v. Himatlal Jamnadas Dani and Others(1972) 1 SCC 388, Badrilal v. Municipal Corpn. of Indore (1973) 2 SCC 388 and R.V. Bhupal Prasad v. State of A.P and Others (1995) 5 SCC 698 and also a judgment in Sevoke Prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him and a trespasser. In Mulla's Transfer of Property Act (7th Edn.) at page 633, the position of tenancy at sufferance has been stated thus: A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has been determined, without the consent of the person entitled. A tenancy at sufferance does not create the relationship of landlord and tenant. At page 769, it is stated regarding the right of a tenant holding over thus: The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. If the lessee remains in possession after the determination of the term, the common law rule is that he is a tenant on sufferance. The expression holding over is used in the sense of retaining possession. A distinction should be drawn between a tenant continuing in possession after the determination of the lease, without the consent of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession thereafter. The suit was filed on 18 th June, 1919 i.e. after the expiry of 12 years from the determination of the lease. The High Court considered Article 139 of the First Schedule of the Limitation Act, 1908 which is now equivalent to Article 67 of the First Schedule of the Limitation Act. The Court held as under: It seems to me on the facts of this case that the tenancy was determined on the 19th of July, 1895. It has not been proved that any new tenancy was created. By holding over without paying rent, it seems to me that the defendants became what is known as tenants by sufferance. Their position in English law has been summed up in Addison's Law of Contract, 10th edition, page 618 in the following words:- The difference, therefore, between a tenancy-at-will and what is called a tenancy by sufferance is that in the one case the tenant holds by right and has an estate or term in the land, precarious though it may be, and the relationship of lessor and lessee subsists between the parties; in the other, the tenant holds wrongfully and against the will and permission of the lord and has no estate at all in the occupied premises. When the tenancy at sufferanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that defendants were indicted as tenants except to the effect that the vendor of the plaintiff has executed a rent note and that the defendants have denied the title of the plaintiff, therefore, they are liable for ejectment. The Court held that in terms of Section 108(q) of the TP Act, the lessee had a duty to put the lessor into possession of the property. If he did not do so, he was merely a tenant whose lease had expired and who had continued to remain in wrongful possession of the property on the expiry of the lease. It was open to the landlord to regularise the position by giving his assent to the continuance of possession and in that situation, provisions of Section 116 of the TP Act would apply. The Court held as under: 10. Taking up the third point first, on the expiry of a lease for a period, Section 108(q) of the Transfer of Property Act imposes a duty on the lessee to put the lessor into possession of the property. Sahib Dayal, therefore, on the expiry of the period of one year fixed under the lease was bound to put Sri Krishna Das in possession of the property in accordance with the provisions of Section 108(q) of the Transfer of Property Act. If he did not do so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased as specified in S. 106. 36. The Full Bench of Bombay High Court in a judgment reported as Sidram Lachmaya, heir and legal representative of deceased Lachmaya Shivram Madur, heir of Original Plaintiff v. Mallaya Lingaya Chilaka ILR 1949 Bom 135 (FB) : 1948 SCC OnLine Bom 4 rightly held that it is a well recognised construction of the Limitation Act that when there is a specific article dealing with a specific subject, that article is to be applied in preference to a general and residuary article . The Full Bench was examining the question as to whether the possession of the tenant is adverse to the landlord upon the expiration of the tenancy period merely because the tenant has not paid rent. The second question examined was whether in a suit based upon title by a landlord against his ex-tenant, whether Article 139 or Article 144 is applicable. In such suit filed by the tenant, the claim was that the title of his landlord had extinguished under Section 28 of the Limitation Act, 1908. The Court held as under: Now, there can be no doub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lt. Col. Inder Maira Ors. 80 (1999) Delhi Law Times 679, it has been held that in terms of Section 108(q) of the TP Act, a lessee continues to be liable to the lessor till possession has been actually restored to the lessor. The continuing in possession of the lessee is expressive of his continuing stand that the tenancy, in whatever form, continues. It was held as under: 40. Section 108(q) thus ensures that a lessee continues to be liable to the lessor till possession has been actually restored to the lessor and a semblance of relationship subsists till that contingency takes place. His continuing in possession is expressive of his continuing stand that the tenancy, in whatever form, continues. It is said that he does not hold it adversely to the landlord only till he has unequivocally renounced his status as a tenant and asserted hostile title, but even that appears to be doubtful, for in law his possession remains permissive till it has been actually restored to the landlord. 41. In law there is presumption in favour of the continuity of the tenancy and against the possession of the tenant becoming adverse. Furthermore, the doctrine of tenant estoppel, which continues ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear) and in either of the aforesaid two contingencies, a notice to quit is served, then on the expiry of the period, his status becomes of a tenant at sufferance. Waiver of that notice, or assent in any form to continuation restores to him his status as a tenant from month-to-month, but capable, of once again being terminated with the expiry of any ensuing tenancy month. 38. Thus, the suit of the plaintiffs filed within 12 years of the determination of the tenancy by efflux of time is within the period of limitation. The defendant has not proved forfeiture of tenancy prior to the expiry of lease period. Mere non-payment of rent does not amount to forfeiture of tenancy. It only confers a right on the landlord to seek possession. The plaintiffs have filed a suit for possession against the defendant on the basis of determination of tenancy, such suit is governed by Article 67 alone. 39. In view of the above, the suit for possession would not be covered by Article 65 since there is a specific article i.e. Article 67 dealing with right of the lessor to claim possession after determination of tenancy. The appellants-plaintiffs have claimed possession from the defendant alleging hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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