Source: High Court of Orissa

Why in News? 

A bench of Justice Sashikanta Mishra held that where the tenancy is tenancy by holding over a minimum 15 days notice must be given before seeking to evict him.          

• The High Court of Orissa held this in the case of Sanatan Bardhan (since dead) through her LRs v. Ranu Sen and others. 

What was the Background of Sanatan Bardhan (since dead) through her LRs v. Ranu Sen and others. Case?  

• The suit was filed by the Plaintiff-respondents for eviction of defendant from the suit property. 
• The suit property belonged to Sisir Ch. Sen (predecessor of the plaintiffs) who inducted defendant as a monthly tenant for one year at Rs. 300. 
• The defendant paid house rent to Sisir till his death whereafter the plaintiffs having succeeded to the property accepted rent from him   
• The defendants were asked by the plaintiffs to pay enhanced rent of Rs 800 per month. 
• However, he did not pay the same nor cleared the arrears due. 
• On 15th December 1996 the suit house was found in a dilapidated condition for which the plaintiffs asked the defendants to vacate but he did not vacate the house and continued to default in paying the enhanced rent from October 1995. 
• Hence, the suit was filed. 
• It is the case of the defendant that no valid notice was issued under Section 106 of the Transfer of Property Act, 1882 (TPA). 
• The defendant detailed his attempts to pay rent. He contested the subsequent legal notices for rent enhancement. 
• The Trial Court held that the tenancy here would be treated as tenancy at will and it was held that notice under Section 106 is required to served on the defendant for evicting him from the suit house. Hence, the suit was dismissed by the Trial Court. 
• The appeal was filed in the First Appellate Court wherein the Court held the following: 
  • The lease agreement was unregistered and valid only for a year hence, it was deemed to be a month-to-month tenancy as per Section 17 of the Indian Registration Act, 1908. 
  • It was further held that the defendant has become a tenant by sufferance and under Section 111 (a) of TPA no notice was required to terminate the tenancy. 
  • Hence, the Court in this case allowed the appeal of the plaintiff and directed the defendant to vacate the suit property.  
• The defendant preferred the second appeal where the following substantial question of law was posed “Whether the finding of the Appellate Court that no notice was required under Section 106 of TPA is required to be served upon the defendant asking him to vacate the house is legally sustainable?”

What were the Court’s Observations?  

• The Court observed that it is admitted that the lease was for one year and therefore, the lease stood automatically determined at the expiry of one year by the virtue of Section 111 (a) of TPA. 
• The Court made a distinction between “tenant by holding over” and “tenant by sufferance”. 
• When the possession of the lessee is after the expiry of the lease is with the assent of the lessor he would be “tenant by holding over” but if the continuance is not by the assent of the lessor, he is merely a “tenant at sufferance”. 
• The Court held that the provision under Section 106 of the TPA requires the notice of 15 days’ and the same cannot be done away with. 
• The Court held that the First Appellate committed an error by treating the defendant as tenant at sufferance and not a tenant holding over. 
• Thus, the Court held that the First Appellate Court committed an illegality by holding that no notice under Section 106 of TPA is necessary. 
• Thus, the Court held that in the present facts the appeal has succeeded.

What is Section 106 of TPA?

• Section 106 of TPA provides for duration of certain leases in absence of written contract or local usage. 
• Section 106 (1) of TPA provides that: 
  • When the lease is for agricultural and manufacturing purposes: 
    • It will be considered year to year lease by default. 
    • Either lessor or lessee can terminate the lease. 
    • Termination requires a six- month notice. 
  • When lease is for other purposes: 
    • It will be considered a month to month lease by default. 
    • Either lessor or lessee can terminate the lease. 
    • Termination requires a fifteen-day notice
• As per Section 106 (2) the period mentioned in sub section (1) shall commence from the date of receipt of notice. 
• As per Section 106 (3) a notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. 
• As per Section 106 (4) provides for the pre requisites of a notice: 
  • The notice must be in writing, signed by or on behalf of the person giving it 
  • It must be sent : 
    • By post to the party  
    • Or delivered personally to the party or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.

Who is “Tenant by Holding Over” and “Tenant by Sufferance”?  

• Where the possession of the lessee after the expiry of the lease is with the assent of the lessor, he is tenant by holding over. 
• Where the possession of the lessee after the expiry of the lease is without the assent of the lessor, he is tenant by sufferance. 
• Section 116 of TPA lays down the effect of holding over. It provides: 
  • If a lessee continues to occupy a property after their original lease has ended and the lessor accepts rent or otherwise consents to their continued possession, the lease is automatically considered renewed. 
  • The renewal of the lease occurs by default from year to year or month to month, depending on the original purpose of the property leasing, as specified in the previous Section 106. 
  • This renewal mechanism applies in the absence of any contrary agreement between the lessor and lessee, effectively providing a default mechanism for lease continuation when both parties continue to act as if the original lease is still in effect. 
• In the case of Raj Kishore Biswal and others v. Bimbadhar Biswal and others (1992) the Court observed regarding tenant holding over and tenant at sufferance as follows: 
  • “Tenant at sufferance” is an expression which is merely a fiction to distinguish him from a trespasser. 
  • A trespasser's possession is wrongful both in its inception as well as in its continuance whereas in case of "tenant at sufferance" his possession was rightful in its inception, but became wrongful in its continuance after termination of tenancy. 
  • There exists no relationship between a 'landlord' and 'tenant at sufferance' as lessor and lessee and a suit for his eviction was not necessary to be preceded by a notice u/s. 106 of the TPA. 
  • A tenancy at sufferance comes to an end by the demand for possession or by entry by the landlord without notice or by the tenant's quitting.