Research › Search › Judgment

Andhra High Court · body

2007 DIGILAW 523 (AP)

V. Muralidhar v. S. Anjaiah Goud

2007-06-06

C.Y.SOMAYAJULU

body2007
Judgment :- 1. Plaintiff in a suit for declaration that he has a permanent right of occupancy to keep his hoardings in a space admeasuring 2325 Sq.ft on the terrace of plot No.5, Piaga colony, Secunderabad (hereinafter referred to as the suit space) under three agreements dated 09-03-1998, executed by Smt. Shakuntala, the mother of the respondents, and for the consequential relief of perpetual injunction restraining the respondents and their men from interfering with its possession and enjoyment of the hoardings erected and installed by it in the suit space is the appellant in this second appeal. 2. The case, in brief, of the appellant, who is the proprietor of M/s. Frontline Advertisers, is that he is carrying on business in outdoor advertising and that he had obtained the suit space on permanent lease from the mother of the respondents for installation of four hoardings of different sizes on an annual rent of Rs.45,000/- for the first four years which has to be enhanced at the rate of 25% for a block period of 4 fours years in future, and as the mother of the respondents died on 22.11.2000, he has been, at their request, paying rents to the respondents regularly till 31.03.2002 and as the respondents refused to receive the rents for the further period he contacted over telephone regarding payment of rent when they abused him in filthy language and threatened to dispossess him by force from the suit space. 3. The case, in brief, of the respondents is that permanent lease of the suit space alleged by the appellant is not true and as the appellant is not in possession of the suit space on the date of filing of the suit, and as he had parted with possession of the hoardings to M/s. Ad Age Advertisers, he is not entitled to the reliefs sought. 4. In support of his case the appellant examined himself as P.W1 and marked Exs.A1 to A75. In support of their case, respondents examined one witness as D.W1 but did not adduce any documentary evidence on their behalf. 4. In support of his case the appellant examined himself as P.W1 and marked Exs.A1 to A75. In support of their case, respondents examined one witness as D.W1 but did not adduce any documentary evidence on their behalf. The trial Court, on the ground that the lease deeds relied on by the appellant are not registered, held that the appellant is not entitled to the declaration sought, and observing that inasmuch as the appellant admitted that he is not in possession of the suit space by the date of filing of the suit, held that as he is not in possession of the suit space by the date of filing of the suit, appellant is not entitled to the injunction sought and dismissed the suit. The first appellate Court, on the same grounds dismissed the appeal preferred by the appellant. Hence this second appeal. 5. This second appeal was admitted by a learned Judge on the following substantial question of law, “Whether the adjudication by the Courts below did not suffer from a serious infirmity inasmuch as a crucial portion of the deposition was omitted and the same constituted the whole basis for dismissal of the suit as well as the appeal.” 6. Since the lease deeds relied on by the appellant, admittedly, are not registered and since the two Courts below concurrently, on that ground, held that the appellant is not entitled to the relief of declaration that he is a permanent lessee of the suit space, the said finding, in view of Section 107 of the Transfer of Property Act, 1882 read with Section 17(d) of the Registration Act, 1908 which mandate any lease for a period exceeding one year can be made only through a registered document needs no interference in this appeal for the relief of the declaration sought by the appellant in respect of the nature of lease of the suit space granted to him by the mother of the respondents. 7. Coming to the relief of injunction sought by the appellant, both the courts below seriously erred in observing that the appellant, as P.W1, admitted that he is not in possession of the suit space by the date of filing of the suit. In para 17 of its judgment the trial Court extracted a portion of the deposition of P.W1 as under “I am the proprietor of M/s. Frontline Advertisers. In para 17 of its judgment the trial Court extracted a portion of the deposition of P.W1 as under “I am the proprietor of M/s. Frontline Advertisers. I am not connected with Ad-Age advertisers. Witness adds: Ad-age advertising agency is one of the agencies like frontline advertisers. It is true Ad-age advertisements and Frontline Advertisers are two different advertising agencies. Exs.P1 to P3 do not authorize me to sub-lease the hoardings to third parties. It is true M/s. Ad-age advertisers are displaying upon the hoardings ever since April 2002............ I am not in possession and only Ad-age is in possession of the hoardings.” In view thereof the first appellate Court also held that inasmuch as there is a specific categorical admission by P.W1 that he is not in possession of the suit space ever since April 2002, it confirmed the finding of the trial Court that the appellant is not entitled to the injunction sought. 8. The main contention of the learned counsel for the appellant is that the trial Court, while extracting a portion of the deposition of the appellant, had, for reasons not known to the appellant, put dots in the place of “It is not true to say” and extracted the subsequent portion, to given an impression that he admitted about his not being in possession of the hoardings. The original deposition of P.W.1 is recorded by a Commissioner in hand writing. The relevant portion thereof reads “I have made efforts to deposit the rents from April 2002 till date. I have not deposited those amounts in the Court. I am not connected with Ad-age advertisers. Witness adds: Ad-age advertisers agency is one of the agencies like frontline advertisers. It is true Ad-age advertisements and Frontline Advertisers are two different advertising agencies. Ex.P1 to P3 do not authorize me to sub-lease the hoardings to third parties. It is true M/s. Ad-age advertisers are displaying upon the hoardings ever since April 2002. It is not true to say that as on date I am not in possession and only Ad-age is in possession of the hoardings. I have been paying the necessary charges for display of hoardings to the cantonment Board.” (Underlining mine) I wonder why the trial Court omitted the important words ‘it is not true to say’ and put dots in place of those words. I have been paying the necessary charges for display of hoardings to the cantonment Board.” (Underlining mine) I wonder why the trial Court omitted the important words ‘it is not true to say’ and put dots in place of those words. So it is clear that the trial Court truncated the deposition of P.W1 by omitting the important words ‘It is not true to say,’ for holding that the appellant admitted that he is not in possession, when he in fact denied the suggestion that he was not in possession of the hoardings by the date of the suit. In fact he asserted that he is paying necessary charges to the Cantonment Board for displaying advertisements on the hoardings. Significantly, that part of the deposition of P.W.1 was also not extracted by the trial Court in its judgment. 9. Here it should be stated that the specific contention of the learned counsel for the appellant is that the appellant erects hoardings and leases them out to advertising agencies for display of advertisements and so merely because Ad age Out Door Advertising Private Limited (Ad age) is displaying their advertisements, the same does not amount to sub-lease. The contention of the learned counsel for the respondents is that after the injunction in favour of the appellant in the trial Court stood vacated due to the dismissal of the suit and before the first appellant Court granted an injunction, Ad age advertisers, the sub-tenants of the appellant, surrendered the lease in favour of the respondents and thus the respondents came into possession of the suit space and so the suit became in fructuous. He relied on Ex.A27 dated 02-05-2002, addressed by Ad-age to the appellant and contended that inasmuch as that letter clearly shows that it is Ad-age, but not the appellant that was in possession of the suit space by the date of suit, it is clear that the appellant sub let the suit space, and as the sub-lessee surrendered possession to the respondents and as the appellant is not in possession of the suit space, concurrent finding of fact can not be interfered with in a second appeal. In reply, the contention of the learned counsel for the appellant is that since it is not the case of the respondents that the appellant surrendered possession of the suit space and since it is the appellant that is in possession of the suit space, he gave a police report when the respondents high-handedly tried to interfere with his possession of the suit space, and in any event since the alleged surrender of the suit space by the Ad-age is not a valid and since a tenant in possession is entitled to injunction against forcible dispossession as held in Mogilipuvvu Annapurnaiah Vs. Malampati Narsimha Rao and another (1982 (1) ALT 188), Sri Balaji Trading Company Vs. Veeraswamy Srinivasan (1980 (1) AWR 28) and Acme Tiles & Building Products Vs. B.Sudarshan and others ( 1993(3) ALT 359 ), the Courts below were in error in dismissing the suit. He also relied on M.C.Chockalingam and others Vs. V.Manickavasagam and others ( AIR 1974 SC 104 ), Badrilal Vs. Municipal Corporation of Indore ( AIR 1973 SC 508 ), Bhawanji Lakhamshi and others Vs. Himatlal Jamnadas Dani and others ( AIR 1972 SC 819 ) and Ganga Dutt Murarka Vs. Kartik Chandra Das and others ( AIR 1961 SC 1067 ) in support of his contention that inasmuch as the possession of a tenant after efflux of time is not unlawful he cannot be dispossessed from the property otherwise than by taking recourse to due process of law. It is his contention that the respondents who issued Exs.A.61 to A.63 notices to quit dated 11-07-2002 through their counsel, can recover possession of the suit space only through due process of law but cannot high handedly dispossess the appellant there from more so because even by 11-07-2002, i.e the date when the respondents got issued the notices to quit also appellant only is in possession of the suit space. He relied on the photographs of the hoardings, produced by the respondents along with SAMP No.140 of 2007 i.e. petition to vacate the interim injunction granted in SAMP No.3040 of 2006, which contain the name of Frontline Advertisers, i.e. the name in which the appellant is carrying on business, in support of the said contention. 10. He relied on the photographs of the hoardings, produced by the respondents along with SAMP No.140 of 2007 i.e. petition to vacate the interim injunction granted in SAMP No.3040 of 2006, which contain the name of Frontline Advertisers, i.e. the name in which the appellant is carrying on business, in support of the said contention. 10. There appears to be force in the contention of the learned counsel for the appellant that authorizing others to make use of the hoardings set up by the appellant to display their advertisements may not amount to sub-lease, because the specific case of the appellant is that he took the suit space on lease for erecting hoardings thereon. The demised premises in this case is the suit space but not the hoardings. It is not the case of any of the parties that hoardings to be erected by the appellant should be used by him only but not others. In my opinion it is not really necessary to go into the question whether the appellant sub let the suit space to Ad-age or not for deciding this second appeal, because even assuming that the appellant sublet the suit space to Ad-age, since a landlord cannot forcibly dispossess his tenant merely on the ground that he sub let it, question whether the appellant is entitled to the injunction sought or not has to be decided. 11. The hoardings erected or set up by the appellant on the suit space are the additions made by the appellant on the property taken on lease by him i.e. the suit space. So as per Section 108 (h) of the Transfer of Property Act he has a right to remove them before he vacates the demised premises, unless there is a contract to the contrary. The sub-lease connotes delivery of possession of demised property to a third party. The demised property is the suit space on which the appellant erected the hoardings. Appellant permitted Ad-age to make use of the ‘hoardings’ and did not part with the possession of the suit space. So appellant authorizing Ad-age to use the hoardings to display of advertisements may not amount to sub-lease of the demised premises because possession of the space taken on lease by the appellant is not parted with by him. 12. Appellant permitted Ad-age to make use of the ‘hoardings’ and did not part with the possession of the suit space. So appellant authorizing Ad-age to use the hoardings to display of advertisements may not amount to sub-lease of the demised premises because possession of the space taken on lease by the appellant is not parted with by him. 12. Now the important point to be decided is whether the alleged surrender by Ad-age to the respondents during the interregnum period of the date of dismissal of suit and the first appellate Court granting injunction would make the suit in fructuous. 13. It is well known that sub lease is a contract between the lessee and the sub-lessee and as the original landlord is not a party thereto to the sub lease, there would be no privity of contract between the sub-lessee and the landlord. At page 869 of Mulla on the Transfer of Property Act, 1882, (18th edition) it is stated “A sublease is an assignment of a lesser term and accordingly there is no privity of estate between the lessor and the sub lessee and this is so in Indian law although the sublease is for the whole residue of the term. A sublease which specifies no term is construed as one for the whole residue of the term. Sub-letting postulates two distinct persons – the head tenant and sub-tenant parting of the premises but only an arrangement for management of the business of the tenant on fixed monthly payments the Supreme Court held that this could not be construed as an agreement of sub-tenancy.” At page 921 of the same book it is stated “A surrender is an yielding up of the term of the lessee’s interest to him who has the immediate reversion or the lessor’s interest....The lessee cannot therefore surrender, unless the term is vested in him and the surrender must be to a person in whom the immediate reversion expectant on the term is vested.” At pages 148 and 149 of The Law of Landlord & Tenant by Ranajit Sinha (2nd edition) it is stated “The surrender must be in favour of the person who has the next immediate greater estate; that is to say; there must be privity of estate between the two parties. To quote an illustration if A let to B for ten years who lets to C for five years, C cannot surrender to A by reason of the intermediate interest of B; but in such case B may surrender to A, and afterwards C likewise; because then his lease for five years is become immediate to the reversion of A. The surrender consists in the yielding up of the term to him who has the immediate estate in reversion in order that the term may, by mutual agreement, merge in the reversion. Hence the parties to the surrender must be the owner of the term and the owner of the immediate reversion expectant on the term.” The apex Court in para 19 of Shah Mathura Das Maganlal and Company Vs. Nagappa Shankarappa Malage ( AIR 1976 SC 1565 ) held “A surrender under clauses (e) and (f) of Section 111 of the Transfer of Property Act, is an yielding up of the term of the lessee’s interest to him who has the immediate reversion of the lessor’s interest. It takes effect like a contract by mutual consent on the lessor’s acceptance of the act of the lessee. The lessee cannot, therefore, surrender unless the term is vested in him; and the surrender must be to a person in whom the immediate reversion expectant on the term is vested.” (Underlining mine) So, even assuming that Ad-age is the sub-tenant of the appellant, it can surrender the sub lease to the appellant only, and question of Ad-age surrendering the sub lease to respondents who are the landlords of the appellant, but not the landlords of the Ad-age, does not arise. So I hold that the alleged surrender by Ad-age to the respondents is not binding on the appellant. 14. So I hold that the alleged surrender by Ad-age to the respondents is not binding on the appellant. 14. Since there is nothing on record to show that the appellant surrendered possession of the suit space to the respondents and since the evidence on record establishes that respondents are trying to interfere with the possession of the appellant over the suit space, and since a landlord cannot high-handedly evict the tenant and recover possession of the property without following due process of law, as held in Mogilipuvvu Annapurnaiah case (1 supra), Sri Balaji Trading Company case (2 supra), and Acme Tiles case (3 supra), appellant is entitled to an injunction restraining the respondents from evicting him from the suit space otherwise than in accordance with due process of law. The point is answered accordingly. 15. In view of the finding on the point for consideration, the appeal is allowed in part and the judgment of the first appellate Court dismissing the suit for declaration sought by the appellant is confirmed. There shall be an injunction restraining the respondents from interfering with the possession of the appellant over the suit space otherwise than in accordance with due process of law, i.e. respondents can evict the appellant only by taking recourse to due process of law. Appellant is entitled to proportionate costs throughout. The rest of the claim of the appellant is dismissed without costs.