Hushang Adi Vakil vs Hindustan Petroleum Corporation Limited

CNR No : HCBM010105492023

2026:BHC-AS:45352
Renuka Thakur 901-SA-228-2023 (2).docx

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 228 OF 2023
Hushang Adi Vakil ...Appellant
V/s.
Hindustan Petroleum Corporation Ltd. ...Respondent
________________
Mr. Pradeep J. Thorat with Ms. Aditi S. Naikare, Mr. Aniesh S. Jadhav and
Mr. Rushikesh S. Kekane for Appellant.
Mr. Javeed Hussein with Mr. Mubashir Hussein, Mr. Munzir Hussein,
Munibah Iram, Mr. Jay Patel, Ms. Alvina Shaikh and Samreen Ansari i/b
Hussein and Co., for Respondent.
________________
CORAM: SANDEEP V. MARNE, J.
RESERVED ON: 29 OCTOBER 2026
PRONOUNCED ON: 5 NOVEMBER 2026.
JUDGMENT:
1) The Appellant has filed this Second Appeal challenging the
judgment and decree dated 25 November 2022 passed by the District
Court at Palghar allowing Regular Civil Appeal No. 56 of 2018 and setting
aside the judgment and decree dated 27 August 2018 passed by the Joint
Civil Judge Junior Division in Regular Civil Suit No. 32 of 1999. The Trial
Court has decreed the Suit filed by the Appellant/Plaintiff and had
directed Defendant to handover possession of the suit land to the
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Plaintiff in addition to direction for payment of arrears of rent and for
conduct of inquiry into mesne profits.
2) Briefly stated, facts of the case, as pleaded in the Plaint, are
that Plaintiff is the owner of land situated at Village-Vadkun Lonipada
Tq. Dahanu, District- Palghar bearing old survey No. 67, Hissa No. 1 and
now bearing No. 117(part). The land originally belonged to Plaintiff's
mother Mani Adi alias Ardeshir Vakil, who had let out portion of land
admeasuring 155 ft. X 155 ft. total 24025 sq. ft. (suit land) to M/s Esso
Standard Eastern Inc. (Esso ). The interest of Esso devolved upon
Hindustan Petroleum Corporation Ltd. (HPCL) who continued in
possession of the suit land in pursuance of lease created in favour of
Esso. According to Plaintiff after expiry of the lease, Defendants started
paying monthly rent in respect of the suit land at the rate of Rs. 4100 per
month. Mani Adi alias Ardeshir Vakil passed away on 31 May 1995
leaving behind her last will and testament dated 18 October 1993
bequeathing all her immovable and movable properties including the
suit land to the Plaintiff. This is how, Plaintiff claims ownership in
respect of the suit land. Plaintiff gave information of his title in the suit
land to the Defendant by letter dated 24 August 1998 and called upon the
Defendant to pay arrears of rent as well as future rent.
3) According to the Plaintiff, Defendant was using the suit land
for operation of a Petrol Pump and its agent Eclipse Distributing Agency
was operating the Petrol Pump and constructed a structure admeasuring
20 ft. X 20 ft on the suit land.
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4) Plaintiff claims that Defendant was in arrears of rent and
therefore notice dated 24 August 1998 was served on the Defendant
calling it upon pay the arrears of rent. Plaintiff also terminated the
tenancy of Defendant by notice dated 19 November 1998 with effect from
31 December 1998 and called upon Defendant to handover vacant and
peaceful possession of the suit. Since Defendant did not act in terms of
the notice, Plaintiff filed Regular Civil Suit No. 32 of 1999 in the Court of
Civil Judge Junior Division, Dahanu seeking possession of the suit
premises from the Defendant as well as recovery of arrears of rent of Rs.
49,200/-. The suit was resisted by Defendant-HPCL by filing a written
statement. Based on pleadings, the Trial Court framed issues, Plaintiff
examined himself as PW-1, and the witnesses Mr. Eraj Barjor Zhaiwala
and Selvan Victor Dyanabranam. Defendant examined Mr. Chandraraj
Misrimal Bothra as DW-1, Mr. Balkrishna Mahadev Khelya as DW-2. Both
the parties relied on several documents.
5) After considering the pleadings, documentary and oral
evidence, the Trial Court proceeded to decree the suit by judgment and
order dated 27 August 2018. The Trial Court directed Defendant to
deliver peaceful and vacant possession of the suit land to the Plaintiff
within three months. The Trial Court directed Defendant to pay arrears
of rent of Rs. 49,200/-, the Trial Court also directed separate inquiry into
mesne profit under Order XX Rule 12(c) of the Code of Civil Procedure,
1908 ( Code ).
6) Aggrieved by the Trial Court's decree dated 27 August 2018,
Defendant-HPCL filed Regular Civil Appeal No. 56 of 2018 before the
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District Court at Palghar. By judgment and order dated 25 November
2022, the District Court has allowed the Appeal preferred by the
Defendant-HPCL and has set aside the judgment and decree dated 27
August 2018 passed by the Trial Court in R.C.S. No. 32 of 1999. Plaintiff
has filed the present Second Appeal challenging the decree of the
Appellate Court dated 25 November 2022.
7) By order dated 17 January 2024, this Court has admitted the
Second Appeal on following three substantial questions of law:-
i) Whether the tenancy of the Tenant holding over after
expiry of the period of lease can be held to be a yearly lease
determinable only by issuing a six months’ notice?
ii) Whether the Lower Appellate Court is justified in
discarding the documentary evidence in the form of
unrealized cheques ExhibitS-31 to 34 dated January 1995,
March 1995, April 1995 and June 1995 respectively which
were issued for an amount of Rs.4100 on the ground that the
same were not encashed and hence the same have no value ?
iii) Whether yearly lease executed for a period of 10 years
which has expired by efflux of time in the year 1974 can be
deemed to be continued till the year 1999 in order to hold
that the said Lease is determinable by issuing a 6 months
Notice ?
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8) By a separate order passed on 17 January 2024, this Court
has injuncted HPCL from creating any third-party rights or parting with
possession of the suit land with flexibility to change the dealer. The
Second Appeal is taken up for final hearing.
9) Mr. Thorat, the learned counsel appearing for the
Appellant/Plaintiff submits that the first Appellate Court has grossly
erred in reversing a well-considered decision of the Trial Court. He
submits that the Appellate Court has erroneously arrived at a conclusion
that the lease held by Defendant is a yearly lease which required issuance
of notice of six months. That Defendant's case that the land is let out for
agricultural purposes is already rejected by both the Courts. That upon
expiry of the contractual lease, the same automatically stands converted
into a month-to-month tenancy by virtue of the provisions of Sections
106, 107, 111 and 116 of the Transfer of Property Act, 1882. Since the
Defendant is a lessee holding over in the absence of a written contract,
the purpose of the lease would determine whether the tenancy is on a
yearly or monthly basis. Further, since the original lease itself was not
created through a registered instrument, the tenancy would be deemed
to be on a month-to-month basis. He relies on judgment of the Apex
Court in Burmah Shell Oil Distributing now known as Bharat
1
Petroleum Corporation ltd. V/s Khaja Midhat Noor and Ors .
10) Mr. Thorat further submits that the Plaintiff had produced
cheques below Exhibits 31 to 34 issued by the Defendant to demonstrate
that monthly rent was paid by HPCL. That issuance of cheques is not
1 (1988) 3 SCC 44.
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disputed. That the Appellant also relies on his own letter dated 24
August 1998 demanding monthly rent. That there was no dispute on the
part of the Defendant about payment of monthly rent. That the Trial
Court had rightly arrived at a conclusion that there was monthly tenancy
upon expiry of the contractual lease. That the first Appellate Court has
erroneously reversed the said finding of the Trial Court.
11) Mr. Thorat further submits that lease Agreement executed
by predecessor of the Appellant on 1 January 1964 for ten years is not
renewed by any registered agreement. That therefore Defendant can be
regarded as a tenant holding over under Section 116 of the Transfer of
Property Act. Therefore, in absence of any written contract between the
parties, the Appellate Court was not justified in holding that even after
termination of the lease, the same would be a yearly lease requiring six
months’ notice. On above broad submissions, Mr. Thorat prays for setting
aside the impugned decree of the First Appellate Court.
12) Mr. Hussein, the learned counsel appearing for Respondent-
HPCL opposes the Appeal submitting that the first Appellate Court has
properly considered the entire material on record for arriving at a
conclusion that yearly lease exists between the parties. That though the
lease Agreement is not registered, stamp duty is paid thereon and
therefore the same can be read in evidence for co-lateral purpose. He
submits that the Agreement itself records at several places that the lease
is granted on yearly rent. He submits that Plaintiff gave express
admission of renewal of lease "on same terms" after expiry of the initial
tenure. That since lease is renewed on same terms, the renewed lease
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will be obviously on yearly basis. That since there is no valid termination
of lease, the Appellate Court has rightly set aside the erroneous decree
passed by the Trial Court.
13) Mr. Hussein further submits that the Appellate Court has
rightly discarded the unrealized cheques relied upon by Plaintiff in
support of plea of monthly tenancy. He submits that when Plaintiff did
not encash the cheques, he cannot be permitted to raise a plea of
monthly tenancy. That Plaintiff did not produce any evidence as to how
rent was paid for several years after expiry of the tenure of lease. That
Plaintiff withheld vital information and documents from the Court and
the Appellate Court is justified in drawl of adverse inference against the
Plaintiff. He therefore prays for dismissal of the Appeal.
14) Rival contentions urged on behalf of the parties, now fall for
my consideration.
15) Plaintiff is the lesssor in respect of the suit lands and his
mother had granted lease of the suit lands in favour of Esso. Defendant-
HPCL took over the activities of Esso and continued occupation of the
suit land from where it has been operating the Petrol Pump through
various dealers. Plaintiff terminated the tenancy by notice dated 19
November 1998 inter alia on the ground of arrears of rent of Rs. 49,200/-.
According to Plaintiff, the monthly rent payable in respect of suit
premises was Rs. 4,100/- Plaintiff accordingly filed a suit seeking eviction
of the Defendant from the suit land. In the written statement filed by the
Defendant-HPCL, defence was raised that the termination notice was
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invalid since there exists yearly tenancy between the parties. Defendant
also denied arrears of rent and contended that several cheques of rent
were sent by the Defendant, which were deliberately not encashed by the
Plaintiff.
16) In the light of above position, one of the main issues before
the Trial Court was whether the tenancy in favour of the Defendant was
yearly or monthly. The issue assumes importance since the tenancy was
sought to be terminated by issuing 15 days’ notice under Section 106 of
the Transfer of Property Act. If tenancy is monthly, it is terminable by
issuing 15 days’ notice under Section 106. On the other hand, if the
tenancy is yearly, the same requires service of notice of six months under
Section 106.
17) As observed above, the Trial Court decreed the suit holding
that there was monthly tenancy between the parties and termination
notice was valid. This finding of the Trial Court is reversed by the
Appellate Court by holding that the tenancy was on yearly basis. In the
present Appeal, it is the endeavour of the Appellant to demonstrate
before this Court that the tenancy at the time of termination was
monthly tenancy and that therefore the termination notice was valid. I
accordingly proceed to answer the three questions framed at the time of
admission of the Appeal on 17 January 2024.
Question No.1
i) Whether the tenancy of the Tenant holding over after expiry
of the period of lease can be held to be a yearly lease
determinable only by issuing a six months notice?
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18) To answer question No. 1, it would be necessary to refer to
the provisions of Transfer of Property Act. Chapter 5 of the Act deals with
leases of immovable property. Section 106 of the Act deals with duration
of leases in absence of written contract or local usage and provides thus:
106. Duration of certain leases in absence of written contract or
local usage.—
(1) In the absence of a contract or local law or usage to the contrary,
a lease of immovable property for agricultural or manufacturing
purposes shall be deemed to be a lease from year to year, terminable, on
the part of either lessor or lessee, by six months' notice; and a lease of
immovable property for any other purpose shall be deemed to be a lease
from month to month, terminable, on the part of either lessor or lessee,
by fifteen days' notice.
(2) Notwithstanding anything contained in any other law for the
time being in force, the period mentioned in sub-section (1) shall
commence from the date of receipt of notice.
(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.
(4) Every notice under sub-section (1) must be in writing, signed by
or on behalf of the person giving it, and either be sent by post to the
party who is intended to be bound by it or be tendered or delivered
personally to such 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.
19) Thus, under Section 106 of the Transfer of Property Act,
1882, a lease of an immovable property for agricultural or manufacturing
purposes is deemed to be a lease from year to year, terminable by the
lessor by giving six months' notice. In the case of a lease of immovable
property for any other purpose, the same is deemed to be a lease from
month to month, terminable by either party by giving fifteen days'
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notice. However, the aforesaid provisions are subject to any contract to
the contrary between the parties.
20) Thus, the effect of provisions of Section 106 (1) of the
Transfer of Property Act is such that either the ‘contract’ governing the
lease or the ‘purpose’ of grant of lease determines whether it is year to
year lease or month to month lease. If lease is for agricultural or
manufacturing purpose, the same is presumed to be a year-to-year lease
unless parties contract otherwise. On the other hand, in absence of
contract to the contrary, every lease for all other purposes is presumed to
be a month-to-month lease. However, in a given case, where the lease is
not for agricultural or manufacturing purposes, the parties can still
agree/contract that the lease would be on year-to-year basis. To illustrate
when a house is let out, it is open for parties to enter into contract and
agree that lease would be on year-to-year basis. If there is no such
contract, law presumes that lease for residential purposes is on month-
to-month basis.
21) The nature of the lease assumes significance in determining
the manner in which the tenancy may be terminated. In the case of a
year-to-year lease, it is mandatory to issue a notice of six months for
termination, whereas a month-to-month tenancy may be terminated by
serving a notice of fifteen days.
22) Section 107 of Transfer of Property Act deals with the
manner of making of leases. Every lease of immovable property either
from year to year or for any term exceeding one year or reserving a yearly
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rent can only be made by a registered instrument. All other leases may be
made either by a registered instrument or even by oral agreement
accompanied by delivery of possession. Section 107 of the Transfer of
Property Act provides thus:
107. Leases how made
A lease of immovable 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 immovable property may be made either by a
registered instrument or by oral agreement accompanied by delivery of
possession.
Where a lease of immovable 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 immovable
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.
23) Section 111 of the Transfer of Property Act, 1882, deals with
determination of lease. It provides that a lease of immovable property
may be determined by the efflux of the time limited thereby or upon the
expiration of a notice to determine the lease. It further enumerates
various other circumstances under which a lease may be determined.
Section 111 of the Act provides thus:
111. Determination of lease.—
A lease of immoveable property determines—
(a)by efflux of the time limited thereby;
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(b)where such time is limited conditionally on the happening of some
event—by the happening of such event;
(c)where the interest of the lessor in the property terminates on, or his
power to dispose of the same extends only to, the happening of any
event—by the happening of such event;
(d)in case the interests of the lessee and the lessor in the whole of the
property become vested at the same time in one person in the same
right;
(e)by express surrender; that is to say, in case the lessee yields up his
interest under the lease to the lessor, by mutual agreement between
them;
(f)by implied surrender;
(g)by forfeiture; that is to say, (1) in case the lessee breaks an express
condition which provides that, on breach thereof, the lessor may re-
enter; or (2) in case the lessee renounces his character as such by
setting up a title in a third person or by claiming title in himself; or (3)
the lessee is adjudicated an insolvent and the lease provides that the
lessor may re-enter on the happening of such event; and in any of these
cases the lessor or his transferee gives notice in writing to the lessee of
his intention to determine the lease;
(h) on the expiration of a notice to determine the lease, or to quit, or of
intention to quit, the property leased, duly given by one party to the
other.
Illustration to clause (f)
A lessee accepts from his lessor a new lease of the property leased, to
take effect during the continuance of the existing lease. This is an
implied surrender of the former lease, and such lease determines
thereupon.
24) Section 116 of the Transfer of Property Act deals with the
effect of ‘holding over’ and provides that if a lessee of property remains
in possession thereof after determination of lease and the lessor accepts
rent from the lessee or otherwise assents to his continuing in possession,
in absence of agreement to the contrary, the lease is renewed from year
to year or from month to month, according to the purpose for which the
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property is leased, as specified in Section 106. Section 116 of the Act
provides thus:
116. Effect of holding over.—
If a lessee or under-lessee of property remains in possession thereof
after the determination of the lease granted to the lessee, and the lessor
or his legal representative accepts rent from the lessee or under-lessee,
or otherwise assents to his continuing in possession, the lease is, in the
absence of an agreement to the contrary, renewed from year to year, or
from month to month, according to the purpose for which the property
is leased, as specified in section 106.
Illustrations
(a) A lets a house to B for five years. B underlets the house to C at a
monthly rent of Rs. 100. The five years expire, but C continues in
possession of the house and pays the rent to A. C’s lease is renewed
from month to month.
(b) A lets a farm to B for the life of C. C dies, but B continues in
possession with A’s assent. B’s lease is renewed from year to year.
25) Thus, when lease is determined under Section 111 of the
Act, but lessee continues to remain in possession of the property and the
lessor accepts rent, the lease is deemed to have continued. However, in
such case, renewal of lease either on year-to-year basis or month-to-
month basis depends on the ‘purpose’ for which the property is leased. In
case, the property is leased for agricultural or manufacturing purpose,
the renewal of lease under Section 116 would be on year-to-year basis. In
all other cases, the renewal would only be from month-to-month basis.
26) Upon application of the above provisions of the Transfer of
Property Act to the facts of the present case, it is clear that the parties
initially created lease on year-to-year basis. This is clear from the lease
Agreement produced at Exh-5, which was created by Mani Adi alias
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Ardeshir Vakil in favour of Esso on 1 January 1964. The lease Agreement
clearly provides for payment of yearly lease rent of Rs. 4,100/-. The lease
was for period of ten years.
27) Though, the Defendant-HPCL raised a plea that the lease
was granted for manufacturing purposes, the said plea is rejected
concurrently by Trial and the First Appellate Court. Even otherwise grant
of lease for operation of retail fuel outlet by an oil marketing company
cannot be treated as the one granted for manufacturing purposes. No
manufacturing activity can be carried out by an oil marketing company
on the land on which a retail outlet/petrol pump is operated by it or by
its dealer. I am therefore, in agreement with concurrent findings
recorded by both the Courts that the lease was not made for
manufacturing purpose. Therefore, the lease would ordinarily partake a
character of month-to-month lease. However, there is express contract
between the parties to have the lease on year-to-year basis. As observe
above, Section 106 (1) of the Transfer of Property Act makes an exception
where parties agree to the contrary in which case presumption of month-
to-month lease does not arise even though the lease is granted for
purpose other than agricultural and manufacturing. Therefore, the lease
was on year-to-year basis during the tenure of the Agreement dated 1
January 1964.
28) There is nothing on record to indicate that the tenure of
lease was extended after expiry of period of ten years. However, there is
evidence to show that Defendant paid and Plaintiff accepted rent even
after expiry of tenure of lease. This converted the status of Defendant-
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HPCL from contractual lessee to that of ‘lessee holding over’ under
Section 116 of the Transfer of Property Act. However, upon change of
status of Defendant from a contractual lessee to that of lessee holding
over, the nature of lease got converted from year-to-year lease to that of
month-to-month lease. This is because the exception of "contract to the
contrary" does not apply in relation to a lessee holding over. The very
concept of lessee holding over applies when contract of lease expires and
the lease is determined under Section 111(a) of the Act. Once the
contract vanishes but lessee continues to hold over on account of the act
of lessor in accepting the rent, the ‘purpose’ for which lease is granted
becomes the only determinative factor for deciding nature of lease. In
the present case, since lease was not granted for agricultural or
manufacturing purpose, the same got converted to month-to-month
lease upon expiration of the Lease Agreement. Thus, Section 116 of the
Transfer of Property Act converted the nature of lease of Defendant-
HPCL from year-to-year lease during currency of contract to month-to-
month lease once it became the lessee holding over.
29) In my view, therefore, by pure operation of law, the
tenancy/lease of Defendant-HPCL was on month-to-month basis at the
time when termination notice dated 19 November 1998 was served by
the Plaintiff. Therefore, there was no need for service of six months’
notice. Under Section 106(1) of the Transfer of Property Act the monthly
tenancy of Defendant-HPCL was determinable by issuance of 15 days’
notice.
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30) Question No. 1 is answered accordingly by holding that
tenancy of a tenant holding over after expiry of period of lease (
when
lease is not for agricultural or manufacturing purpose ) becomes monthly
tenancy which does not require issuance of six months’ notice.
Question No.2
ii) Whether the Lower Appellate Court is justified in discarding
the documentary evidence in the form of unrealized cheques
Exhibit-31 to 34 dated January 1995, March 1995, April 1995
and June 1995 respectively which were issued for an amount of
Rs.4100 on the ground that the same were not encashed and
hence the same have no value ?
31) Answer to this issue is not even necessary in the light of the
discussion above while answering Question No. 1. However, it is seen
that the Defendant in the present case, had paid/offered rent to the
Plaintiff on monthly basis. The cheques at Exhibits 31 to 34 from January
1995 to June 1995 clearly establish payment of monthly rent of Rs.
4,100/- by the Defendant-HPCL. To put any controversy at rest the letter
of Defendant at Exhibit 35 dated 9 June 1995 specifically contained an
admission that Defendant-HPCL was paying ‘monthly rent’. Letter dated
9 June 1995 reads thus:
प्रि य महोदय ,
इस पत्र के साथ हम जून 1995 महीने के प्रिकराए के भुगतान के लि ए बैन्क
ऑफ इंडि$या , बम्बई शाखा के नाम लि खा प्रिदनांक १ /6/1995 का रू 4.100.00 का
चेक क्रं 133045 सं ग्न कर रहे है I
(emphasis added)
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32) The first Appellate Court has erroneously discarded the
documentary evidence in the form of cheques at Exhibits 31 to 34 merely
because the same were not encashed by the Plaintiff. What is relevant
here is the conduct of the Defendant in paying the rent by issuance of
the cheques, which is relevant for the purpose of determining whether
the tenancy was on year-to-year basis or month to month basis. Whether
the rent offered was accepted and whether the cheques were encashed
becomes an irrelevant factor. In the light of tendering of monthly rent,
the Defendant was estopped from raising the plea of yearly tenancy. In
my view, the first Appellate Court has grossly erred in discarding the
documentary evidence of payment of monthly rent by the Defendant-
HPCL only on account of failure on the part of the Plaintiff to encash the
same. If Plaintiff was to encash the cheques, the same would have
continued the lease of the Defendant as holding over. The cheques are
therefore rightly not encashed by the Plaintiff. In any case, what is
material and relevant is the act of Defendant and not that of Plaintiff.
The rent was tendered on monthly basis and this is the only relevant
factor. Question No. 2 is answered accordingly.
Question No.3
iii) Whether yearly lease executed for a period of 10 years which
has expired by efflux of time in the year 1974 can be deemed to
be continued till the year 1999 in order to hold that the said
Lease is determinable by issuing a 6 months Notice ?
33) This question is also partly answered while answering
Question No.1. Even though the lease executed on 1 January 1964 had
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expired in the year 1974, the Plaintiff accepted the rent from the
Defendant and accordingly Defendant acquired the status of ‘lessee
holding over’ under Section 116 of the Transfer of Property Act. Since the
Defendant had acquired the status of a lessee holding over, it was
incumbent upon the Plaintiff to serve a notice under Section 106 of the
Transfer of Property Act, 1882 for determination of the lease, particularly
if the Plaintiff did not intend to accept rent from the Defendant-HPCL. In
the absence of such a notice, the lease could not be treated as having
been determined merely by efflux of time under Clause (a) of Section 111
of the said Act. This is because there is no contract in case of a lessee
holding over and therefore there is no question of tenure of lease
expiring with efflux of time. Such lease holding over needs to be
determined by a positive notice under Section 106 of the Act. However,
the law raises a presumption of continuation of the lease where the
lessor accepts rent even after the expiry of the lease by efflux of time. In
the present case, therefore, the lease in favour of Defendant-HPCL
continued by virtue of it’s acquiring the status of a lessee holding over.
34) Having held that service of notice is necessary for the
determination of the lease of a lessee holding over, the next issue that
arises for consideration is the period of notice required to be given for
such determination. This is already answered while answering question
No. 1. Here the ‘purpose’ for which lease was granted becomes the only
determinative factor for deciding whether the renewed lease is year to
year lease or month to month lease. Since the lease was not granted for
agricultural or manufacturing purpose, the renewed lease was on month-
to-month basis. Such month-to-month lease was terminable was serving
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by 15 days’ notice under Section 106 of the Transfer of Property Act. The
lease has been validly terminated by service of notice dated 19 November
1998. Question No. 3 is answered accordingly.
35) In view of the above discussion, the impugned judgment and
decree dated 25 November 2022 passed by the first Appellate Court is
unsustainable and liable to be set aside. Second Appeal accordingly
succeeds and I proceed to pass the following order:
(i) Judgment and order dated 25 November 2022 passed
by the District Court, Palghar in Regular Civil Appeal No.
56 of 2018 is set aside.
Judgment and decree dated 27 August 2018 passed by
(ii)
the Civil Judge Junior Division, Dahanu in Regular Civil
Suit No. 32 of 1999 is confirmed.
(iii) Defendant shall handover possession of suit land to
the Plaintiff within a period of three months.
36) Second Appeal is in above terms with costs.
allowed
RENUKA
SHANKARSINHA
THAKUR
[SANDEEP V. MARNE, J.]
Digitally signed by
RENUKA
SHANKARSINHA
THAKUR
Date: 2026.11.05
21:15:18 +0530
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