The Orissa High Court stated that a notice giving 7 days for a tenant to leave a property is not enough under Section 106 of the Transfer of Property Act. A notice period of 15 days is necessary.
The Orissa High Court stated that the requirement for a 15-day notice under Section 106 of the Transfer of Property Act must be followed. A notice given by all co-owners that allowed only 7 days for the ‘tenant holding over’ to leave the property does not meet the Section 106 requirement. The High Court reviewed an appeal from the Defendant against a previous ruling. This ruling by the Additional District Judge overturned a decree made by the Civil Judge (Jr. Division). Justice Sashikanta Mishra, in a Single-Judge Bench, noted that since the defendant was recognized as a tenant holding over and no valid notice was served before the lawsuit, the case was not valid and was correctly dismissed by the trial court.
Senior Advocate S.K. Mishra represented the Appellants, while Advocate R.K. Nayak represented the Respondents. The lawsuit was initiated by the Plaintiff-respondents to evict the defendant from the property, which belonged to the late Sisir Ch. Sen, the plaintiffs’ predecessor. He had rented the property to the defendant for one year at a rate of Rs. 300 per month. The defendant paid rent to Sisir until his death, after which the plaintiffs took over the property and continued to accept rent. The plaintiffs requested the defendant to increase the rent to Rs. 800 per month, but he failed to pay this amount or settle any overdue payments. The plaintiffs sent a notice through their lawyer, but the defendant did not respond. On December 15, 1996, the property was found in poor condition and needed urgent repairs, prompting the plaintiffs to ask the defendant to vacate. However, he did not leave and continued to default on the increased rent since October 1995.
The defendant challenged the lawsuit by submitting a written statement questioning its validity. He argued that he had never received a proper notice as required by Section 106 of the Transfer of Property Act. The Trial Court found that although Plaintiff No. 6 had sent a legal notice, it was only on behalf of one co-owner and therefore not a valid notice. When the plaintiffs appealed, the court ruled in their favor, ordering the defendant to vacate the house and pay overdue rent. The defendant then filed a Second Appeal. The main question for the Bench was whether a notice under Section 106 of the T.P. Act was necessary for the defendant’s eviction.
Upon reviewing the agreement details, the Bench noted that the lease was for one year and automatically ended on December 28, 1988, according to Section 111(a). The Bench stated, “There is no evidence to show that before the legal notice dated November 20, 1995, the plaintiffs attempted to have the defendant leave the house,” adding, “These facts clearly indicate that the defendant remained in the house with the plaintiffs’ consent.” The Bench also referenced the case of Raj Kishore Biswal vs. Bimbadhar Biswal and concluded, “It is evident that if a lessee remains after the lease ends with the lessor’s consent, he is a ‘tenant holding over’; if not, he is merely a ‘tenant at sufferance,’ a term used to differentiate him from a trespasser.”
Reliance was placed on section 116, which states that if a lessee or under-lessee stays in possession of a property after the lease ends, and the lessor or their legal representative accepts rent or agrees to their continued possession, the lease is renewed from year to year or month to month, unless there is a different agreement, as outlined in Section 106. The legal position indicates that the requirement for a 15-day notice under Section 106 cannot be ignored. The trial Court correctly noted that the first notice under Ext.4, issued by only one landlord, was invalid. Additionally, the second notice, which was sent on behalf of all co-owners, only allowed 7 days for the defendant to vacate, failing to meet the Section 106 requirement of the T.P. Act.
After reviewing the facts, law, and arguments from both sides, this Court believes the First Appellate Court erred in stating that no notice under Section 106 was needed, making the impugned judgment unsustainable. Since the Court found that the defendant was a tenant holding over and no valid notice was served before the suit was filed, the suit was not maintainable and was rightly dismissed by the trial Court. Therefore, the Appeal is allowed, and the judgment of the trial Court in dismissing the suit is confirmed.
Cause Title: Sanatan Bardhan (since dead) Represented through her L.Rs Mana Mohini Bardhan and others v. Ranu Sen and others [Case No.- RSA No.340 of 2017]
Appearance:
Appellants: Senior Advocate S.K.Mishra, Advocate J. Pradhan
Respondents: Advocate R.K.Nayak
