SC: Art.65 inapplicable in suit for possession on determination of tenancy

The Hon’ble Supreme Court, on 19th March 2020, in the matter of Nand Ram (D) Through Lrs. & Ors. v. Jagdish Prasad (D) Through Lrs. observed that a suit for possession on the basis of determination of tenancy, is governed by Article 67 alone. It would not be covered by Article 65 since there is a specific article i.e. Article 67 dealing with right of the lessor to claim possession after determination of tenancy.

The Hon’ble Supreme Court observed that:

Which matters are directly in issue and which are only collaterally or incidentally in issue, must be determined on the facts of each case. A material test to be applied is whether the court considers the adjudication of the issue material and essential for its decision. (Para 20)

A finding returned in the award of the Reference Court for a limited purpose cannot be binding on the parties in a suit for possession based on title or as a lessor against a lessee. (This inference has been drawn on the basis of Para 27)

If the issue before the Reference Court was apportionment of compensation and such issue having been decided against the defendant-tenant, the reference to notice for termination of tenancy does not operate as res judicata. (This inference has been drawn on the basis of Para 27)

Section 116 of the Transfer of Property Act, 1882 confers the status of a tenant holding over on a yearly or monthly basis keeping in view the purpose of the lease, only if the lessor accepts the payment of lease money. If the lessor does not accept the lease money, the status of the lessee would be that of tenant at sufferance. (Para 29)

Lease would be renewed as a tenant holding over only if the lessor accepts the payment of rent after the expiry of lease period. (Para 29)

Mere non-payment of rent does not amount to forfeiture of tenancy. It only confers a right on the landlord to seek possession. (Para 38)

A suit for possession on the basis of determination of tenancy, is governed by Article 67 alone. It would not be covered by Article 65 since there is a specific article i.e. Article 67 dealing with right of the lessor to claim possession after determination of tenancy. (Para 38 and 39)

The question of adverse possession without admitting the title of the real owner is not tenable. (Para 41)

Copy of judgement: Judgement_19-Mar-2020

-Adv. Tushar Kaushik

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