Research › Search › Judgment

Karnataka High Court · body

2005 DIGILAW 787 (KAR)

Motwane Pvt. Ltd. v. Mohammad Asif (D) by LRs.

2005-11-30

AJIT J.GUNJAL

body2005
ORDER 1. Even though the matter is listed for admission, with consent it is taken up for final disposal. 2. During the course of this order, the parties will be referred to as per their ranking in the trial Court. 3. The plaintiff since deceased, now represented by the legal representatives, initiated proceedings for ejectment in SC No. 16181/2002. The learned trial Judge notwithstanding serious defence taken by defendant, has decreed the suit and granted an order for ejectment. 4. Few facts are necessary to be stated to appreciate the controversy in question. The property in question originally bore the No. 9 of N. R. Road, Bangalore consisting of four separate and distinct portions bearing Nos. 9, 9/1, 9/2 and 9/3 of N.R. Road. So far as the present controversy is concerned, it is for a portion of premises No. 9 admeasuring 20 feet east to west and 60 feet north to south. It appears the suit property in its entirety consisting of ground floor and first floor, belong to one Gul Mohammed Sait. It appears there was a decree for partition in OS No. 1/1970 on 29-8-1971 under which the western first floor portion which is in occupation of the defendant corresponding in size and dimensions to the ground floor portion No. 2 in occupation of the other tenant fell to the share of the plaintiffs mother. After the death of plaintiffs mother, four sharers succeeded to four portions of the said first floor. Pursuant to the decree obtained in OS No. 1/1970, the entire first floor was bifurcated, as stated earlier into No. 9., 9/1, 9/2 and 9/3 and the original plaintiff was given the portion ad measuring 20 feet east to west and 60 feet north to south. The defendant has been carrying on his business in the suit schedule property since 1940. The rent payable in respect of the entire first floor was Rs. 200/- p.m. and it was divided into four equal shares of which the original plaintiff was paid a sum of Rs. 50/-. According to the original plaintiff, he being one of the co-owners, issued a notice terminating tenancy of the defendant under the Transfer of Property Act. The said notice was duly served on the defendant and the present suit is filed for ejectment. 50/-. According to the original plaintiff, he being one of the co-owners, issued a notice terminating tenancy of the defendant under the Transfer of Property Act. The said notice was duly served on the defendant and the present suit is filed for ejectment. The prayer in the suit is for a judgment and decree seeking direction to the defendant to quit and deliver vacant possession of the suit schedule property and for costs etc. It is significant to note that other than this relief, no other relief is sought for by the plaintiff. 5. The defendant pursuant to the summons issued, entered appearance and filed his objections. Apart from taking up the contention that the notice issued u/S. 106 of the T.P. Act is not valid, he also took a contention that the quit notice itself is bad in law, inasmuch as, after the death of the mother of the original plaintiff, the entire property got divided into four shares. The other three sharers having not consented for eviction, the quit notice in its entirety is not in confirmity with S. 106 of the Transfer of Property Act. According to the defendant, the quit notice in respect of the suit property in question ought to have been issued by all the sharers. He would also generally deny that the original plaintiff is not entitled for a decree of ejectment. Another main contention raised by the defendant in the written statement is that no division has taken place in respect of the entire first floor, without their being any clear demarcation in respect of the suit schedule property, possession thereof in respect of the premises bearing No. 9/3 ad measuring 20 feet east to west and 60 feet north to south is not at all maintainable. The defendant would further contend that in the absence of any clear identity of the suit property, a decree for ejectment cannot be granted. 6. On the basis of these pleadings, the learned trial Judge has framed the following points for determination : 1. Whether termination of tenancy is proper? 2. Whether suit is bad for non-joinder of necessary parties? 3. What order? 6. On the basis of these pleadings, the learned trial Judge has framed the following points for determination : 1. Whether termination of tenancy is proper? 2. Whether suit is bad for non-joinder of necessary parties? 3. What order? The learned trial Judge on consideration of the material on record was of the opinion that the notice terminating tenancy is in confirmity with the Transfer of Property Act and the suit is not bad for non-joinder of the necessary parties and was of the opinion that the plaintiff is entitled for an order of ejectment. 7. In support of their rival contentions in the trial Court, the original plaintiff examined himself as P.W. 1. Mr. K. Surya Kumar, the representative of the defendant-company was examined as D.W. 1. In support of plaintiffs case, Exh. P1 to 14 were marked. The defendant of course did not get any documents marked. 8. In sofaras the documents produced by plaintiff are concerned, Exhs. P3 to 5 are the notices issued u/S. 106 of the T.P. Act; Exh. P6 is also a notice issued under Certificate of Posting, Exhs. P7 to 9 are the acknowledgment receipts and Exhs. P10 to 14 are the other related documents. Exh. P12 is a letter regarding payment of rent to the original plaintiff. 9. Mr. Jayadeva, learned counsel appearing for the defendant would strenuously put across two contentions. One is that a suit for ejectment is not maintainable under the Small Causes Court Act and the other contention raised by him would be that the quit notice is not issued on behalf of other co-sharers, the same is bad in law. In support of his contention, he relied on a judgment of Gujarat High Court in AIR 1973 Guj 131 in the case of Nanalal Girdharlal v. Gulamnabi Jamalbhai Motorwala judgment of the Apex Court in AIR 1976 SC 2335 in the case of Sri Ram Pasricha v. Jagannath. 10. Mr. Dayananda Kumar, learned counsel appearing for the original plaintiff would contend that a heading of S. 8 r/w Schedule 4 of the Karnataka Small Causes Court Act, 1964 would give a clear indication that in a suit of this nature, the jurisdiction of the Small Causes Court Act is not excluded. He would also refer me to certain portion of the evidence of the original plaintiff. He would also refer me to certain portion of the evidence of the original plaintiff. Insofar as the notice of termination is concerned, he submits that original plaintiff being the owner, the notice of termination is valid. In any case the tenant cannot question the title of landlord. 11. It is noticed that the original plaintiff died during the course of the proceedings and his legal representatives are brought on record. I have given my anxious consideration to the rival submissions of both the counsel. Two questions fall for determination in this petition. They are : 1) Whether the Small Causes Court has jurisdiction in a case of this nature; 2) Whether the quit notice issued is in confirmity with S. 106 of the T.P. Act? Insofar as the first contention raised by Mr. Jayadeva is concerned, it is to be noticed that jurisdiction of the Small Causes Court and cognizance thereof is dealt with under S. 8 of the Act. Sub-section (1) of S. 8 would deal with certain cases wherein the Small Causes Court does not have cognizance of the suits specified in the schedule as it is beyond its jurisdiction. Sub-section (2) would deal with exceptions to the schedule. It would also deal with all suits of a civil nature of which the value does not exceed Rs. 25,000/-. This takes us to schedule. Schedule 4 would exclude a suit for possession of immoveable property or recovery of an interest in such property. But however, there is an exception which would necessarily include a suit for ejectment. The suit for ejectment would contain three aspects which is to be found in schedule. They are : (a) The property has been let under a lease or permitted to be occupied, by a written instrument or orally; and (b) The Court of Small Causes would be competent to take cognizance of a suit for the rent of the property; and (c) The only substantial issue arising for the decision is as to whether the lease has been determined by efflux of the time limited thereby or has been determined by a notice in accordance with the law for the time being in force in respect of such lease, or the permission to occupy has been withdrawn. Schedule 4(a) would deal with a suit for ejectment where the property has been let under a lease or permitted to be occupied by a written instrument or orally. Schedule 4(b) would deal with competence of the Court to take cognizance for the rent of the property and Schedule 49(c) would necessarily deal with termination of tenancy by efflux of time or as determined by notice in accordance with law for the time being in force or for that matter, permission to occupy has been withdrawn. A contention is raised before me that all the three ingredients (a), (b) and (c) are to be satisfied conjointly to initiate proceedings under the Small Causes Court. The fact that a conjunction is used in the nature of and by itself does not give a indication that all the three reliefs must be satisfied to invoke the jurisdiction of the Court of Small Causes. Apparently, Schedule-4 will have to be read with O. 2, R. 2, sub-rule (1), C.P.C. wherein it is clearly stated that plaintiff may also relinquish any of the reliefs to bring the suit within the jurisdiction of any Court. In the circumstances, if claim for the arrears of rent is not asked for, it does not necessarily mean that the Small Causes Court is ousted of its jurisdiction. In the circumstances, I am of the considered view that the suit for ejectment simpliciter when all the three ingredients as contemplated under S. 4(a) to (c) are satisfied, the suit in the present form is certainly maintainable. Schedule 4(c) also contemplates issuance of notice determining the tenancy in accordance with law which would be once again under S.106 of the Transfer of Property Act. That exercise has already been done by the plaintiff. 12. This takes us to the next question of Mr. Jayadeva where notice issued by the original plaintiff without their being, according to him, express or implied consent of other co-owner, suit is not maintainable. In this regard it is necessary to refer to the notice issued by the original plaintiff. Exh. P6 is a notice issued u/S. 106 of the T.P. Act send Under Certificate of Posting. Jayadeva where notice issued by the original plaintiff without their being, according to him, express or implied consent of other co-owner, suit is not maintainable. In this regard it is necessary to refer to the notice issued by the original plaintiff. Exh. P6 is a notice issued u/S. 106 of the T.P. Act send Under Certificate of Posting. In the said notice it is clearly and distinctly stated that the premises in question is distinct i.e., No. 9/3 situate over and above and corresponding in length and breath to the ground floor in occupation of M/s. Rajagopal and Company. The notice would also indicate regarding the rent payable to each of the sharers, which would also indicate that the original plaintiff was managing the suit property and he was representing the heirs of late Zainab Bi. Of course it would deal with as to when the tenancy commenced and when it ends. The notice also deals with the exclusive portion with measurement of premises No. 9/3 (westernmost ¼th of the first floor). This fact is further reiterated in Exh. P8 which is another notice sent under RPAD. Exh. P3 is a communication sent by the defendant to the original plaintiff regarding payment of rent. This would clearly indicate that a sum of Rs. 50/- is sent to the original plaintiff which would necessarily mean that a division had taken place between the co-sharers in respect of the entire property bearing No. 9 and the original plaintiff was entitled for his share of Rs. 50/- as rent. It would necessarily mean that defendant had acknowledged the original plaintiff as their landlord to the extent of which ejectment is sought. Exh. P4 is another communication sent by the defendant to the original plaintiff. So also is Exh. P5. All these communication which are at Exhs. P3 to 8 are signed by one Mr. Suryakumar, who is representing the defendant-company in all these proceedings. Now this takes us to the original evidence of original plaintiff. It is no doubt true that certain suggestions are made by the defendant during the course of cross-examination regarding the consent of other co-owners before issuing the quit notice. All these questions put in the cross-examination is denied by the original plaintiff. It is useful to extract a portion of the cross-examination : . . . . . . . . All these questions put in the cross-examination is denied by the original plaintiff. It is useful to extract a portion of the cross-examination : . . . . . . . . .It is false to suggest that other co-owners never intended to evict this defendant. It is false to suggest that other co-owners have not authorised me to terminate the tenancy of this defendant. It is false to suggest that the defendant has not recognised me alone as a landlord of this schedule property.. . . . . . . . This would give a clear indication that assuming notice ought to have been issued on behalf of all the co-sharers, there is implied consent. Even otherwise Exhs. P3 to 5 which are communications sent to the original plaintiff regarding payment of rent is another pointer to the fact that they have recognised the original plaintiff as their landlord and they were sending him rent. 13. Identical question fell for consideration before the Gujarat High Court in AIR 1973 Guj 131 wherein while considering the scope of notice u/S. 106 of the T.P. Act viz-a-viz notice determining the lease, whether it could be issued by a co-owner on behalf of other co-owners. Para 9 of the said judgment deals with this aspect of the matter. It reads as under : Where two or more co-owners have granted a periodic tenancy, it can be determined only by a notice to quit given by all co-owners. This would be so, irrespective whether the co-owners are joint tenants or tenants-in-common and whether the periodic nature of the tenancy is agreed upon between the parties or, in the absence of a contract to the contrary, is implied by S.106. Of course, if the contract between the parties provides that any one of the co-owners may give notice to quit determining the tenancy, the contract would prevail and notice to quit given in accordance with the contract would effectively put an end to the tenancy. Now when we say that the notice to quit must be given by all co-owners, it is not necessary that it should be signed by all co-owners. It is sufficient if it is given by someone acting as agent on behalf of the co-owners. The agent may be one of the co-owners himself or he may be a third person such as for example, a solicitor or an advocate. It is sufficient if it is given by someone acting as agent on behalf of the co-owners. The agent may be one of the co-owners himself or he may be a third person such as for example, a solicitor or an advocate. Such an agency may be express or implied. So long as the agency is established, notice to quit given by the agent would be a valid notice determining the tenancy. But the authority of the agent, express or implied, must exist at the date when the notice to quit is given; subsequent ratification of the notice to quit by the co-owners would not be sufficient to determine the interest of the tenant. In fact this decision fell for consideration in the case of Sri Ram Pasricha v. Jagannath, reported in AIR 1976 SC 2335 . The Apex Court while dealing with the said issue, has ruled that under the general law, in a suit between landlord and tenant the question of title to the leased property is irrelevant. The tenant in such a suit is estopped from questioning the title of the landlord under S. 116 of the Evidence Act. In fact a reading of the said judgment would clearly indicate that u/S. 116 of the Evidence Act, in a suit for ejectment, the tenant is estopped from questioning the title to the suit property. 14. The other contention of Mr. Jayadeva is that if a decree for ejectment is confirmed, he would have no access to the remaining portion of the first floor. This contention also fails. In the cross-examination the defendant would clearly admit that there is a separate entrance through winding stair case to the remaining portion of the suit property. Apparently a reading of this evidence would clearly disclose that there are two access to the first floor, one by winding stair case and there is another one entrance. When that is the case, it cannot be said that there cannot be a eviction of the suit schedule property. 15. For the foregoing reasons I am of the considered view that the judgment and decree passed by the learned trial Judge does not call for interference. The revision petition stands dismissed. No other contention is urged. 16. Mr. Jayadeva, learned counsel appearing for the defendant prays for some time to quit and deliver vacant possession. Mr. 15. For the foregoing reasons I am of the considered view that the judgment and decree passed by the learned trial Judge does not call for interference. The revision petition stands dismissed. No other contention is urged. 16. Mr. Jayadeva, learned counsel appearing for the defendant prays for some time to quit and deliver vacant possession. Mr. Dayananda Kumar, learned counsel appearing for the plaintiffs submits that pursuant to Execution Petition No. 15479/05, plaintiffs have taken possession of the suit schedule property. If possession is not already taken, time is granted till end of January, 2006 to quit and deliver vacant possession of the suit property. 17. Petition dismissed.