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RFA No. 08 of 2016

Bharat Sanchar Nigam Limited v. Radhika Chettri

2017 SCC OnLine Sikk 65 : (2017) 176 AIC 850 : AIR 2018 (NOC 285) 101

In the High Court of Sikkim: Gangtok

(Civil Appellate Jurisdiction)
Single Bench
(BEFORE MEENAKSHI MADAN RAI, J.)

The General Manager, Bharat Sanchar Nigam Limited (BSNL),

Balwakhani, P.O. & P.S. Gangtok, East Sikkim .…. Appellant
v.
Smt. Radhika Chettri W/o Late Bhakta Bahadur Chettri, R/o
Soreng Bazar, P.O. & P.S. Soreng, West Sikkim .…. Respondent
RFA No. 08 of 2016
Decided on May 20, 2017
Appearance:
Mr. K.T. Tamang, Advocate for the Appellant.
Mr. N. Rai, Senior Advocate with Ms. Tamanna Chhetri, Ms. Malati Sharma and Mr.
Suraj Chhetri, Advocates for the Respondent.
The Judgment of the Court was delivered by
MEENAKSHI MADAN RAI, J.:— This Appeal assails the Judgment and Decree, dated
19-04-2014, of the Learned District Judge, West Sikkim, at Gyalshing, in Eviction Suit
No. 02 of 2014, vide which the Learned Trial Court ordered as follows;
(i) That, the Plaintiff is entitled to a recovery of the arrears rent (sic) from the
Defendant from the month of January, 2013 till the date of disposal of this case.
However, in the interest of justice, there are no orders with regard to interest
payable thereupon by the Defendant.
(ii) That, the Plaintiff is entitled to an amount of Rs. 2,50,000/- (Rupees two lakhs
and fifty thousand) only, for the damage caused. Defendant is accordingly
directed to vacate the suit premises by taking the heavy machine (sic) after
paying the arrears of rent and amount of damages as mentioned above within
one month from the date of this Judgment.
2. The primary ground pressed in Appeal was that, the Learned Trial Court failed to
appreciate that in the absence of a valid tenancy between the Appellant and the
Respondent after 31-12-2012 and the surrender of the suit property by the Appellant,
they were not liable to pay any rent and, therefore, no arrears of rent accrued. The
next argument pivoted around the order of the Learned Trial Court directing the
Defendant (hereinafter “the Appellant”), to pay a sum of Rs. 2,50,000/- (Rupees two
lakhs and fifty thousand) only, for causing damages to the suit property, without
assessing the actual extent of the damage or ascertaining the real cause of the alleged
damage to the suit property of the Plaintiff, (hereinafter “the Respondent”).
3. In order to appreciate the matter in its correct perspective, I deem it essential to
advert to the facts of the case.
4. The Respondent is the absolute owner of a flat, measuring 1141.60 sq.ft., in a
three storied RCC building situated at Soreng, West Sikkim, the property having been
kept as ‘Jewni’ (property for lifetime), by herself and her husband, Late Bhakta
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Bahadur Chettri, consequent to a family partition dated 05-12-1993. In 1993, the said
property was leased out to the Appellant for a monthly rent of Rs. 2,665/- (Rupees
two thousand, six hundred and sixty five) only, for a period of five years from 13-04-
1993, in terms of Exhibit 3, the Lease Deed document. A Clause existed in the Lease
Deed that the Lessee shall have the option of renewing the Lease of the said premises
for further periods, on giving Notice of such intention, to the Lessor at least three
months prior to expiration of the Lease. The Lessee, however, failed to take necessary
steps as provided, hence on expiry of the lease period the Respondent's husband vide
letter, marked Document ‘X’ (before the Learned Trial Court), requested the Appellant
to either increase the house rent by 30% or to vacate the occupied premises. This
request was communicated by the concerned Divisional Engineer of the Appellant's
Company to the Executive Engineer at Siliguri, West Bengal, in vain. That, the
premises thereafter continued to be in the occupation of the Appellant at the
previously fixed monthly rent of Rs. 2,665/- (Rupees two thousand, six hundred and
sixty five) only, duly collected by the Respondent allegedly on the belief that the Lease
Deed would be renewed and rent revised. On the demise of the Respondent's husband
on 04-04-2008, the rent was sent in the name of the Respondent's daughter, Tara
Devi Chettri, who continued to collect it till August 2012, after which no house rent
was forthcoming. The Appellant, vide letter dated 27-09-2012 intimated the
Respondent that the suit property would be handed over on 31-12-2012 and the said
letter be treated as ‘Notice’ of three months. That, on checking the suit premises it
was found to be in a dilapidated condition which the Appellant was bound to repair
before handing over. The prayers of the Appellant were for enhanced rent from the
period February 1998, to August 2012, @ Rs. 10,000/- (Rupees ten thousand) only,
per month, duly deducting Rs. 2,665/- (Rupees two thousand, six hundred and sixty
five) only, per month, as already paid by the Appellant. Enhanced rent from
September 2012, to November 2014, amounting to Rs. 2,60,000/- (Rupees two lakhs
and sixty thousand) only, pendente lite and future interest @ 4% per month on the
principal amount, till recovery of the said amount, Compensation for damages caused
to the building amounting to Rs. 2,00,000/- (Rupees two lakhs) only.
5. The Appellant, filed their Written Statement before the Learned Trial Court
denying and disputing the contentions raised by the Respondent and, inter alia, held
that the Suit had not been valued correctly in terms of Section 7 of the Court Fees Act,
1870. That, the claim for enhanced rent is bad in Law and untenable, the Lease Deed
being unregistered thereby attracting the provisions of Section 116 read with Sections
106 and 107 of the Transfer of Property Act, 1882 (hereinafter “T.P. Act”). That apart,
the Suit is bad for non-joinder of necessary parties, the sons of the Respondent having
not been impleaded, on the demise of her late husband. It was also contended that
although the Appellant, through its letter dated 27-09-2012, requested the
Respondent to take over the possession of the leased property, she failed to do so.
Simultaneously, she restrained the Appellant from taking the equipment from the suit
property. That, the “Banda Patra” being unregistered, the Respondent cannot be said
to be the sole owner of the suit property. On the aforesaid counts, it was urged that
the Suit be dismissed.
6. The Learned Trial Court after hearing the parties settled the following Issues for
determination;
(i) Whether the Plaintiff is entitled for a decree of eviction against the Defendant?
Onus on Plaintiff.
(ii) Whether the Defendant is liable to pay an enhanced rent after the expiry of
Lease Deed dated 13-04-1993? Onus on Defendant.
(iii) Whether the Lease of the suit property was month to month basis lease? Onus
on Defendant.
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(iv) Whether the Plaintiff is the absolute and sole owner of the suit property and
whether the present Suit is untenable/not maintainable for non-joinder of
necessary party? Onus on Plaintiff.
(v) Whether the Defendant caused material alternation/damages to the suit
property and the Plaintiff is entitled to damages and arrear of rent? Onus on
Plaintiff.
(vi) Relief.
7. Issue Nos. (i), (ii) and (iii) were decided against the Respondent, while Issue
Nos. (iv), (v) and (vi) were decided in her favour.
8. The arguments advanced by Learned Counsel for the Appellant before this Court
were that the Respondent had been informed of their intention to vacate the premises
by their correspondence dated 27-09-2012, consequent thereupon, no valid tenancy
existed between the parties. A tenancy would not be created merely because the
machinery of the Appellant was unilaterally retained by the Respondent in the
scheduled premises. On this ground, Learned Counsel referred to the decision of Raja
1
Laxman Singh v. State of Rajasthan . That, the Learned Trial Court failed to arrive at
the finding as to how the Appellant was a tenant after December 2012, and, therefore,
the question of payment of arrears in rent to the Respondent as ordered by the
Learned Trial Court, does not arise. It was next contended that the Learned Trial Court
arbitrarily arrived at the amount of compensation to be paid by the Appellant, while
assessment as per the Appellant was in terms of Exhibit ‘E’, duly proved by D.W.1
being a sum of Rs. 1,26,051/- (Rupees one lakh, twenty six thousand and fifty one)
only, from the date they vacated the suit premises, till the date of Judgment. That,
although the Respondent assessed the damages at Rs. 6,54,000/- (Rupees six lakhs
and fifty four thousand) only, in terms of Exhibit 6, but failed to prove its contents.
Hence, the Judgment of the Learned Trial Court be set aside.
9. Per contra, it was canvassed by Learned Senior Counsel for the Respondent that
the husband of the Respondent died in 2008 and the relevant Notice was issued to the
daughter of the Respondent, Tara Devi Chettri, who is not the owner of the property,
thereby raising a question as to its validity. It is denied that the Respondent
restrained the Appellant from taking the equipment from the suit premises. Referring
to Exhibit ‘E’ of the Appellant's document, it was contended that the assessment of
Rs. 1,26,051/- (Rupees one lakh, twenty six thousand and fifty one) only, was arrived
at without basis by the Appellant, while the Respondent remained unrepresented at
the inspection, therefore, the assessment is at best opaque with no clarity on the
estimate arrived at. While drawing the attention of this Court to Document ‘Z’ issued
by the Appellant to Tara Devi Chettri, dated 27-09-2012, wherein it is stated that the
building is ready for handing over on 31-12-2012, it was argued that to the contrary
Exhibit ‘E’, dated 23-02-2016, indicated that the Appellant found some damages in
the building, clearly revealing that the premises were not ready for handing over in
December 2012. That, the photographs exhibited by the Respondent reveal the extent
of damages to the scheduled premises then in the occupation of the Appellant. As the
suit premises were not handed over to the Respondent, the Appellant continued to be
the tenants, till the decision of the Suit. The Appellant sought to rely on Venkita Pathi
Naidu v. Sethu Udayar2 and Puttegowda v. State of Karnataka3. That, as the assailed
Judgment of the Learned Trial Court warrants no interference, the Appeal be
dismissed.
10. Learned Counsel for the parties were heard at length and due consideration
given to their rival contentions. I have also carefully perused the entire evidence and
meticulously examined the documents on record as also the impugned Judgment.
11. The points that arise for determination by this Court are;
(a) Whether a jural relationship existed between the parties consequent upon
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issuance of Notice dated 27-09-2012 by the Appellant?

(b) Whether damages have been assessed correctly by the Learned Trial Court?
12. Before proceeding further, it would be appropriate to recapitulate here that
although the Learned Trial Court while determining Issue Nos. (ii) and (iii) together
found that the Respondent was not entitled to enhancement of monthly rent till
December 2012 and ultimately ordered that arrears of rent be paid by the Appellant
from January 2013, till disposal of the Suit @ Rs. 2,665/- (Rupees two thousand, six
hundred and sixty five) only, per month, it failed to spell out the relationship between
the parties during the said period. In fact, no discussions have ensued on the legal
position in terms of the T.P. Act. Instead of skirting the issue, it could well have been
decided under Issue No. (ii), but unfortunately was not.
13. That having been said, I now turn to address the points for determination.
Taking up point (a) for discussion, Exhibit 3 is the Lease Deed Document between the
parties which indicates that it was executed on 13-04-1993, with the Lease period
commencing from 11-01-1993, for five years, viz; 10-01-1998, rent being fixed @ Rs.
2,665/- (Rupees two thousand, six hundred and sixty five) only, per month.
Undisputedly the Lease Deed is unregistered. As rightly contended by the Appellant, a
Lease Deed is required to be registered in terms of Section 107 of the T.P. Act. The
Section provides that a lease of immovable property from year to year or any term
exceeding one year or reserving a yearly rent can be made only by a registered
instrument. The said provision is extracted hereunder for convenience;
“107. Leases how made.— A lease of immoveable property from year to year,
or for any term exceeding one year or reserving a yearly rent, can be made only by
a registered instrument.
All other leases of immoveable property may be made either by a registered
instrument or by oral agreement accompanied by delivery of possession.
Where a lease of immoveable property is made by a registered instrument, such
instrument or, where there are more instruments than one, each such instrument
shall be executed by both the lessor and the lessee:
Provided that the State Government may from time to time, by notification in the
Official Gazette, direct that leases of immoveable property, other than leases from
year to year, or for any term exceeding one year, or reserving a yearly rent, or any
class of such leases, may be made by unregistered instrument or by oral agreement
without delivery of possession.”
14. When a Lease Deed is not registered as envisaged under the above provision,
Section 106 of the T.P. Act comes into play, which provides that in the absence of a
contract to the contrary, the lease of immovable property other than for agricultural or
manufacturing purposes, shall be deemed to be a lease from month to month,
terminable on the part of either Lessor or Lessee by fifteen days' notice. In Punjab
4
National Bank v. Ganga Narain Kapur it was held that if any person claims to the
contrary that the lease was for a fixed term or to be a yearly lease instead of a month
to month lease, he has to prove so by legal, valid and reliable evidence.
15. In the Suit at hand, upon determination of the Lease Deed in January 1998, the
Appellant continued to pay rent @ Rs. 2,665/- (Rupees two thousand, six hundred and
sixty five) only, till August, 2012, which was accepted by the Respondent. As the
Lease Deed was unregistered, the provisions of Section 106 of the T.P. Act falls into
place and, therefore, the tenancy would be a month to month tenancy right from its
inception.
16. We may now refer to Section 116 of the T.P. Act which deals with the “Effect of
holding over”. The expression “holding over” means that the relationship of the
landlord and the tenant is allowed to continue after the determination of the lease,
with the consent of both parties. The Lessee remains in possession and tenders the
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rent payable while the Lessor or his legal representative accepts it, when infact it was
open to the Lessor to recover possession from the Lessee or file a Suit for eviction on
his refusal to vacate. Where a person holds over under an unregistered lease and
continues in possession by paying the monthly rent, the holding over must be
considered as a tenancy from month to month in view of Section 106 of the T.P. Act.
The rent payable during such a tenancy would be the same as the previous lease [The
State of U.P. v. Zahoor Ahmad: (1973) 2 SCC 547] and the assent of the landlord to
the continuance of the tenancy after the determination of the tenancy would create a
new right. In the matter at hand the Appellant continued to pay rent from January
1998, to December 2012, while the Respondent accepted it. From the conduct of the
parties it is conclusive that from January 1998, to December 2012, a tenancy was
created between the parties by holding over, which was a new tenancy in law, by
implication.
17. That, having been settled, it would be appropriate to draw a distinction
between a “tenant by holding over” and “a tenant by sufferance”, the latter being one
that continues after determination of the lease, without the consent of the landlord.
This is really no tenancy stricto sensu and requires no notice to determine it, as the
status of the tenant is akin to a trespasser, though not exactly a trespasser being
rightful in its inception, but wrongful in its continuance. A Lessee holding over with the
consent of the Lessor is in a better position than a tenant at sufferance. In the case of
a tenant at sufferance the liability arises ex delicto, i.e., from a transgression and he
will be liable for damages in the form of mesne profit and not payment of rent.
18. We may now examine the relationship of the parties pursuant to December
2012. The Notice being ‘Document Z’ was issued by the Appellant on 27-09-2012, to
the Respondent's daughter, the relevant portion of which is as follows;
“……………………………………………………………………………….
Dated at NBZ the 27-09-2012
Subject: Notice for Termination of Hiring your Building.
As per the instruction from higher authority it is to (sic) intimated you that the
rented accommodation by BSNL is to be handed over to your end after 3 months
(sic) i.e. on 31-12-2012. The Building is ready for hand over. The letter may be
treated as Prior notice. Your kind co-operation during the lease period is highly
appreciated.
…………………………………………………………..………………….”
19. This Notice was followed by a “Handing over and Taking over memo of rented
accommodation” which is dated 04-12-2012, Exhibit ‘C’. Vide this Memo, the
Respondent's daughter is informed as follows;
“……………………………………………………………………….
No: SDE(P)/NBZ/VACATING/OLD T.E. BLDG/12-13/02 Dated: 04-12-12
Madam,
As per the direction of DGM(CFA) Gangtok, it is to inform you that GMT BSNL
Gangtok had decided to hand over the entire rented portion of the old Soreng T.E.-1
accommodation by 31-12-12. Accordingly the said rented portion is ready for
handover to your end.
Hence you are requested to take over the same on 31-12-12.
…………………………..………………………………………………….”
20. Apart from the Memo being dated 04-12-2012, it bears the following details;
“1) Hand over by (sic): Sri. Arun Roy
(SDE (P)/Nayabazar.)
BSNL, Sikkim.
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On 31.12.12
Sd/- 19-12-2012.
(Sig of Sri. Arun Roy with seal)
Sub-Divisional Engineer (Phones)
BSNL, Nayabazar, (Jarethang)
South Sikkim
2) Taken over by: Smt. Tara Devi chhetri Vill-soreng Dara Bazar P.O-Soreng Dist-
Gayzing West-Sikkim-737121
(Sig of Smt. Tara Devi Chhetri)”
21. The anomalies that stand out in this document are that; although dated 04-12-
2012 it is signed by the concerned Officer of the Appellant on 19-12-2012, and
purports to hand over the premises on 31-12-2012. The signature of the Respondent's
daughter does not appear on the document on any of the aforementioned dates.
Clearly the shortcomings in the document are indicative of the fact that the Appellant
continued to retain the Appellant. Merely because Notice was issued of intent to vacate
is no proof of such. There is no indication of acceptance by the Respondent, the
document being bereft of her signature or for that matter her daughter's. No
independent witnesses are found to be present.
22. Pursuant to this Memo, Exhibit ‘C’ dated 04-12-2012, the Respondent on 08-12
-2012 issued a Legal Notice claiming enhanced rent and arrears of rent as found in the
prayers to the Plaint and Rs. 2,00,000/- (Rupees two lakhs) only, for renovation of the
premises which was found to be in a dilapidated condition before handing over the
premises on 31-12-2012 or to pay a sum of Rs. 2,00,000/- (Rupees two lakhs) only, in
lieu thereof. Records do not bear any response to this communication of the
Respondent from the Appellant. Instead, the Appellant rather belatedly after the efflux
of several years in the month of February, 2016, constituted a Committee to inspect
and assess the damages in the scheduled premises therein during their occupation,
and vide Exhibit ‘E’ concluded that the damages to the building was to the extent of
Rs. 1,26,051/- (Rupees one lakh, twenty six thousand and fifty one) only. The
inspection was carried out sans the Respondent or her representative. In the interim,
the machinery belonging to the Appellant remained in the premises, it is thus
axiomatic that the Appellant continued to be in the occupation of the premises. In
view of the foregoing discussions, I have to hold that the Appellant was a tenant at
sufferance from January 2013, considering their inaction, despite their purported
Notice dated 27-09-2012, followed by the Memo dated 04-12-2012 and legal notice of
the Respondent dated 08-12-2012. The anomalies that presented in the handing over
Memo dated 04-12-2012 are not being reiterated to prevent verbosity.
23. That, having been said, I may now turn my attention to the provisions of
Section 108 of the T.P. Act which lays down the rights and liabilities of Lessor and
Lessee. In Section 108(h), (m) and (q) of the T.P. Act reads as follows;
“108. Rights and liabilities of lessor and lessee.—………………………………..
……………………………………….…
(h) the lessee may even after the determination of the lease remove, at any
time whilst he is in possession of the property leased but not afterwards all
things which he has attached to the earth; provided he leaves the property in the
state in, which he received it;
……………………………………………………………………..
(m) the lessee is bound to keep, and on the termination of the lease to
restore, the property in as good condition as it was in at the time when he was
put in possession, subject only to the changes caused by reasonable wear and
tear or irresistible force, and to allow the lessor and his agents, at all reasonable
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times during the term, to enter upon the property and inspect the condition
thereof and give or leave notice of any defect in such condition; and, when such
defect has been caused by any act or default on the part of the lessee, his
servants or agents, he is bound to make it good within three months after such
notice has been given or left;
………………………………………………………………..
(q) on the determination of the lease, the lessee is bound to put the lessor
into possession of the property.”
24. None of the aforesaid conditions have been fulfilled by the Appellant and there
is no evidence forthcoming to indicate that the Lessee put the Lessor into possession
of the property as required under Section 108(q) of the T.P. Act. Section 108(m) of
the T.P. Act requires that damages caused to the suit property be made good within
three months, which was not complied with in the instant case.
25. As the Appellant continued to hold the premises it could not be utilized by the
Respondent. The Privy Council in Girish Chunder Lahiri v. Shoshi Shikhareswar Roy5
has observed that mesne profits were in the nature of damages which the Court may
mould according to the justice of the case. The award of mesne profit is meant to
compensate a person who was deprived of rightful possession. According to Section 2
(12) of the Code of Civil Procedure, 1908 (for short “CPC”), the term “mesne profit”
includes not only the profits which the person in wrongful possession actually received,
but also those which he might have received with ordinary diligence, but does not
include profits due to improvements made by person in wrongful possession. Given a
wider connotation it would mean that which the Appellant has lost on account of the
wrongful act of the Respondent, in other words the amount the Respondent might
reasonably be expected to have made, had he been in possession. Hence, the
Respondent is entitled to mesne profits which are assessed at Rs. 1,43,910/- (Rupees
one lakh, forty three thousand, nine hundred and ten) only, with interest @ 4% per
annum, till full and final payment as it is fair to infer that had possession been with
the Respondent she would have obtained rent at the prevailing rate. Consequently, the
order of the Learned Trial Court on arrears of rent is set aside.
26. Now to address point (b), it is true that different assessments for damage to
the premises have been made by the Appellant and the Respondent both of which did
not appear to be reliable to the Learned Trial Court as the assessment of the Appellant
was sans the presence of the Respondent, while the Respondent failed to prove her
document. To obliterate any grievance the Learned Trial Court could have invoked the
provisions of Order 26 Rule 9 of the CPC to arrive at the assessment. Nevertheless,
after due consideration of all materials on record and the photographs filed by the
Respondent, I find that the damages assessed by the Learned Trial Court bears no
infirmity.
27. In this context, it would be relevant to point to the observation of the Hon'ble
6
Apex Court in Dalip Singh v. State of Uttar Pradesh , it was observed that “In last 40
years, a new creed of litigants has cropped up. Those who belong to this creed do not
have any respect for truth. They shamelessly resort to falsehood and unethical means
for achieving their goals. In order to meet the challenge posed by this new creed of
litigants, the courts have, from time to time, evolved new rules and it is now well-
established that a litigant, who attempts to pollute the stream of justice or who
touches the pure fountain of justice with tainted hands, is not entitled to any relief,
interim or final.” The above observation appears to be apt for the present purposes. In
Ramrameshwari Devi v. Nirmal Devi7, the Supreme Court has held that the Courts
have to take into consideration pragmatic realities and have to be realistic in imposing
the costs.
28. Hence, on consideration of the entire facts and circumstances and the
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observations of the Hon'ble Apex Court hereinabove, it is ordered as follows;

(a) The Appellant shall pay Rs. 1,43,910/- (Rupees one lakh, forty three thousand,
nine hundred and ten) only, as mesne profits with interest @ 4% per annum,
from January 2013, to June 2017.
(b) Rs. 2,50,000/- (Rupees two lakhs and fifty thousand) only, for damages caused
to the suit property.
29. The Judgment of the Learned Trial Court is modified to the extent detailed
hereinbefore and Appeal allowed to that extent.
30. Vacant possession of the suit premises be handed over by the Appellant to the
Respondent, on or before 30-06-2017, failing which the Appellant shall pay simple
interest @ 10% per annum, on both the above sums till possession is handed over.
31. No order as to costs.
32. Copy of this Judgment be sent to the Learned Trial Court for information.
33. Records of the Learned Trial Court be remitted forthwith.
———
1.
AIR 1998 Rajasthan 44
2.
AIR 1974 Kerala 132

3.
AIR 1980 Karnataka 102
4.
AIR 1994 All 221

5.
(1900) LR 27 IA 110, 27 MIA 110

6.
(2010) 2 SCC 114

7.
(2011) 8 SCC 249
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