S. 106 TP Act | 15 Days' Notice To 'Tenant Holding Over' A Must Before Eviction: Orissa High Court

The Orissa High Court has reiterated that the lessor is required to give a minimum 15-days-notice to the lessee in the nature of 'tenant holding over', as prescribed under Section 106 of the Transfer of Property Act, before seeking to evict him from his immoveable property.While deciding a regular second appeal, the Single Bench of Justice Sashikanta Mishra explained the vital differences between 'tenant holding over', 'tenant at sufferance' and 'trespasser' and observed –“…it is clear that when the possession of the lessee after expiry of the lease is with the assent of the lessor, he would be a 'tenant holding over' but if his continuance is not by the assent of the lessor, he is merely a 'tenant at sufferance', the expression being a fiction to distinguish him from a rank trespasser.”Factual BackgroundA suit was filed by the present respondents for eviction of the appellant from the suit house. The predecessor of the respondents had inducted the appellant as a monthly tenant for one year at the agreed rent of Rs. 300/-. The appellant paid the rent to the predecessor till his death and after that, he paid the same to the present respondents, being his successors. Subsequently, the appellant was asked to pay an enhanced rent of Rs. 800/- per mensem but he defaulted in paying the same and did not clear the arrear dues. Therefore, the respondents served an Advocate's notice on him, to which he did not respond. He was thereafter asked to vacate the property but he did not do the same and continued to default in paying the enhanced rent.The respondents, thus, filed a suit praying for eviction of the appellant from the suit property. The appellant filed his written statement challenging the maintainability of suit on the ground that no valid notice was served upon him under Section 106 of the Transfer of Property Act before seeking his eviction. After analysing the evidence on record, the trial Court found that the appellant was tenant under the predecessor of the respondents and after his death, under the respondents. Though an agreement for rent was made for one year, it was not renewed thereafter and the appellant remained in possession of the property at the will of the landlords. Thus, it held that a notice under Section 106 was required to be served upon him before seeking eviction.Being aggrieved, the respondents filed first appeal in which the first appellate Court held that as the appellant continued beyond the period of one year on the basis of an unregistered lease agreement, he became a tenant from month to month and hence, no notice terminating his tenancy was necessary in view of Section 111(a) of the Act. It further held that since the defendant continued in possession in absence of assent by the lessor, he would be a 'tenant by sufferance' and can be sued for ejectment at any time without any previous notice or demand of possession.Impugning the findings of the first appellate Court, the legal representatives of the appellant filed this regular second appeal before the High Court.Court's ObservationsThe Court admitted the second appeal upon framing the substantial question as to whether the finding of the first appellate Court that no notice under Section 106 is required to be served upon the appellant asking him to vacate the tenanted shop house within the time as prescribed/stipulated is legally sustainable.It was noted that the appellant was inducted as a tenant by the predecessor of the respondents by executing a lease agreement on 29.12.1987 and the recitals of the agreement made it clear that the lease was for one year i.e. from 29.12.1987 to 28.12.1988. Therefore, the lease stood automatically determined on 28.12.1988 in view of the provision under Section 111(a).Further, the appellant did not vacate the property after expiry of the lease agreement, rather continued the possession. The appellant kept on paying rent to the predecessor of the respondents and after his death, he paid the rent to the respondents for which receipts were also issued. Furthermore, the respondents did not produce any evidence to show that they had ever taken steps for making the appellant vacate the suit property, rather it came to light that they had demanded enhanced rent from the appellant in September 1995, which was defaulted. Therefore, taking all the above circumstances conjointly, the Court opined that the appellant had continued in the suit house with consent of the respondents.Against this backdrop, the Bench went on examine the nature of tenancy of the appellant i.e. 'tenant at sufferance' or 'tenant holding over'. It referred to an earlier judgment of the Court in Raj Kishore Biswal & Ors. v. Bimbadhar Biswal & Ors., wherein it was held as follows:“Under the general law, if a lessee governed by the Transfer of Property Act more often called a tenant, continues in possession of the lease-hold, after the tenancy is terminated, he may be called a 'tenant holding over', if the lessor or his legal...

S. 106 TP Act | 15 Days' Notice To 'Tenant Holding Over' A Must Before Eviction: Orissa High Court

Jyoti Prakash Dutta

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