need help urgently
puja
(Querist) 11 September 2008
This query is : Resolved
hi all
my client has a property which he has given on rent to students. aportion (IInd floor of the same was let out to an advocate comprising of 1 bed room, 1 kitchen and W.C. RENT rs 4000.
now when my client ask to vacate the teneant he refuses. a little argument held b/w them. now that tenant filed an injunction suit against my client and in court my client has given the statament that he will vacate him withdue process of law.
now the client came to me on this stage after all this things. and ask for eviction of this tenant.i suggest that we will first send him a notice under sec. 106 TPA.
plz help if i am right. can anybody help me in telling the contents ofnotice under sec. 106 TPA.
if need more facts plz msg me
KamalNayanSaxena
(Expert) 11 September 2008
Puja
what's the very conept of S. 106 shoul be clarified.
Under S. 107 parties have an option to enter into a lease in respect of an immovable property either for a term less than a year or from year to year, for any term exceeding one year or reserving a yearly rent, such a lease has to be only by a registered instrument. In absence of a registered instrument no valid lease from year to year or for a term exceeding one year or reserving a yearly rent can be created. If the lease is not a valid lease within the meaning of the opening words of S. 106 the rule of construction embodied therein would not be attracted.
S. 106 lays down a rule of construction which is to be applied when the parties have not specifically agreed upon as to whether the lease is yearly or monthly. What this section does is to prescribe the duration of the period of different kinds of leases by legal fiction - leases for agricultural or manufacturing purposes shall be deemed to be lease from year to year and all other leases shall be deemed to be from month to month. Existence of a valid lease is a pre-requisite to invoke the rule of construction embodied in S. 106 of Transfer of Property Act.
In your case notice under S.106 is not required. You may serve a simple notice for eviction of premises.
Rajesh Kumar
(Expert) 11 September 2008
Actually if you see the problem from the angle of "possession", you can take possession only by following the due process of law, undertaking of your client notwithstanding.
Look at the issue from the angle of tresspass. Merely bacause you allow a person to use your property for certain time, it does not mean he gets possession of the property. Possession may still be with you. You go to guest house and take on rent a room- you cant say you have possession of the room. Possession in fact and possession in law are two different concept.
Once you can make a prima facie case of tresspass, criminal law will help you. You can also claim compensation.
