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Sunday, August 8, 2010

Transfer of Property Act, 1882, S.106

2010(3) LAW HERALD (P&H) 2009
The Hon’ble Mr. Justice Vinod K. Sharma
RSA No.2578 of 2002
M/s Ram Murti & Sons & Anr.
Punjab Wakf Board & Ors.
{Decided on 28/05/2010}
For the Appellants: Mr.M.L.Sarin Sr.Advocate, Advocate, with Mr.Nitin Sarin, Advocate.
For the Respondents No.1: Mr. S.K. Pipat Sr., Advocate, with Mr. Manoj Kumar, Advocate.
For the Respondent No. 3: Mr. K.S. Dadwal, Advocate.
(A) Transfer of Property Act, 1882, S.106--Punjab Wakf Act, 1995, S. 56--Possession--Whether Section 56 of Punjab Wakf Act, could have retrospective effect to determine lease executed in 1978--NO--Held, that provisions of Section 56 of Punjab Wakf Act, were not applicable to lease executed in favour of defendants/appellants in 1978 nor it was governed by Section 56 of Act, but by terms of lease deed as Section 36 of 1954 Act was not enforced. (Para 50 & 55)
(B) Transfer of Property Act, 1882, S.106--Possession--Whether there was any violation of provisions by Secretary of Board in granting sanction for construction or in alternative whether acts of Secretary stood rectified by necessary implication as defendants were allowed to continue in his possession on payment of enhanced rent--Lease deed in favour of defendants/appellants was not void, as after execution of lease deed defendants/appellants were allowed to raise construction and Board accepted rent at revised rate till 1985 i.e. after expiry of lease period--There was thus, implied consent of Board to lease executed by secretary to Board, action of secretary stood rectified. (Para 50 & 56)
(C) Transfer of Property Act, 1882, S.106--Possession--It is always open to courts to grant lesser relief than claimed, in facts and circumstances of case--Decree of learned lower appellate court, cannot be said to be bad merely because in a suit for possession along with superstructure, learned lower appellate court had decreed suit for possession by directing defendants/appellants to hand over possession of plot leased out, after removing malba which belonged to defendants/appellants. (Para 50 & 74)
(D) Transfer of Property Act, 1882, S.106--Possession--Notice--Notice of termination of lease, cannot be said to be bad in law as by raising additional construction over and above shops and stair qua which permission was given, defendants-appellants violated specific terms of lease deed--Furthermore, as per amended law, defendants/appellants could not be allowed to continue even though amended law was not retrospective in operation, but by way of specific term, defendants/appellants had agreed to abide by any change in law--Notice cannot be said to be invalid so as to hold that lease deed continued to subsist--Owner under general law is competent to seek eviction of lessee by issuing notice of termination of lease--Appeal dismissed. (Para 50, 75 & 76)