Code of Civil Procedure, 1908 – Section 100
Second Appeal – Scope – Concurrent findings
High Court, while exercising jurisdiction under Section 100 CPC, cannot re-appreciate evidence or interfere with concurrent findings of fact recorded by the courts below unless such findings are perverse, based on inadmissible evidence, or recorded by ignoring material evidence. Existence of a substantial question of law is a sine qua non.
(Paras 31–32)
Transfer of Property Act, 1882 – Section 106
Notice to quit – Sufficiency
Filing of eviction proceedings and issuance of notice demanding vacation of premises clearly demonstrate intention of landlord to terminate tenancy. Eviction suit itself constitutes sufficient notice to quit.
(Paras 17–18)
Tenant holding over – Tenant at sufferance – Distinction
Transfer of Property Act, 1882 – Sections 116 & 111
A tenant continuing in possession after expiry of lease without consent of landlord is a tenant at sufferance and not a tenant holding over. Acceptance of rent after expiry of lease is sine qua non to claim tenancy by holding over.
(Paras 18–23)
Landlord and Tenant – Default in payment of rent
Where documentary evidence establishes persistent default in payment of rent and refusal of landlord to accept rent on account of default, tenant cannot claim protection as tenant holding over.
(Paras 15–16, 23)
Eviction suit – Non-joinder of parties – Co-owners
One of the co-owners or legal representatives of the deceased landlord is competent to maintain a suit for eviction against the tenant. Non-joinder of other co-owners or legal heirs is not fatal in the absence of objection from them.
(Paras 26–29)
Damages / Mesne profits – Fixation
Assessment of damages for unauthorised occupation, based on evidence on record and concurrent findings of courts below, does not warrant interference in second appeal in the absence of illegality.
(Paras 24–25)
Additional evidence – Order XLI Rule 27 CPC
Rejection of application to receive additional evidence by the appellate court after assigning reasons does not warrant interference in second appeal.
(Para 29)
Second Appeal – Dismissal
Where no substantial question of law arises from concurrent findings based on appreciation of oral and documentary evidence, second appeal is liable to be dismissed.
(Paras 31–33)
ANALYSIS (ISSUE-WISE)
1. Nature of the litigation
The suit was filed by the landlord seeking eviction of the defendant-tenant and recovery of damages. The Trial Court decreed eviction and damages. The First Appellate Court, being the final fact-finding court, confirmed the decree. The defendant invoked Section 100 CPC.
(Paras 1–8)
2. Relationship of landlord and tenant
The landlord-tenant relationship was admitted. The tenancy originated under an unregistered lease deed dated 26-04-2001 for 11 months, with subsequent continuation and enhancement of rent.
(Paras 3, 5, 13)
3. Default in payment of rent
The Trial Court and Appellate Court relied on documentary evidence (Exs.A7 to A9) and admissions to conclude that the defendant committed default in payment of rent. These findings were concurrent and based on evidence.
(Paras 15–16)
4. Notice under Section 106 TPA
The High Court held that:
-
filing of eviction proceedings itself manifests intention to terminate tenancy, and
-
issuance of Ex.A3 legal notice further establishes termination.
Hence, the plea of invalid notice under Section 106 TPA was rejected.
(Paras 17–18)
5. Tenant holding over vs tenant at sufferance
The Court elaborated the distinction:
-
absence of acceptance of rent after expiry of lease negates tenancy by holding over;
-
defendant, having defaulted and whose rent was not accepted, was only a tenant at sufferance.
(Paras 18–23)
6. Non-joinder of necessary parties
The Court reiterated settled law that one co-owner or legal representative can maintain eviction proceedings. The death of the original landlord and substitution by his son did not render the suit defective.
(Paras 26–29)
7. Damages
The fixation of damages at Rs.5,000/- per month was based on evidence and admissions. The High Court found no illegality or perversity warranting interference.
(Paras 24–25)
8. Scope of interference under Section 100 CPC
Re-emphasising settled jurisprudence, the Court held that it cannot re-appreciate evidence or disturb concurrent findings in the absence of a substantial question of law. None arose in the present case.
(Paras 31–32)
9. Final outcome
The second appeal was dismissed without costs, and all pending miscellaneous petitions were closed.
(Para 33)
RATIO DECIDENDI
-
A tenant continuing in possession after expiry of lease without acceptance of rent by the landlord is a tenant at sufferance and not a tenant holding over under Section 116 of the Transfer of Property Act.
-
Filing of eviction proceedings and issuance of notice demanding vacation constitute sufficient notice to quit under Section 106 of the Transfer of Property Act.
-
One co-owner or legal representative of a deceased landlord is competent to maintain a suit for eviction; non-joinder of other co-owners or heirs is not fatal unless prejudice is shown.
-
Concurrent findings on default in payment of rent and fixation of damages, based on appreciation of evidence, are not open to interference in second appeal in the absence of perversity or illegality.
-
Jurisdiction under Section 100 CPC can be exercised only when a substantial question of law arises; re-appreciation of evidence is impermissible.
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