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2012 DIGILAW 536 (ORI)

Narayan Kedia v. Prasanta Kumar Pattnaik

2012-12-11

M.M.DAS

body2012
JUDGMENT M.M. Das, J. 1. This second appeal has been preferred against the judgment and decree passed by the learned Addl. Civil Judge (Senior Division), Dhenkanal in C.S. No. 123/106 of 2003 which was confirmed by the learned District Judge, Dhenkanal in his judgment dated 21.11.2006 passed in R.F.A. No. 10 of 2004 with certain modifications in regard to the quantum of damages decreed by the lower appellate court. The substantial questions of law on which the second appeal has been admitted are as follows: 1. Whether the suit for eviction is defective and not maintainable in the absence of the four sisters of the respondent as parties when they have got common/joint interest in the property, which is conflicting with that of the respondent? 2. Whether non-impletion of other co-tenants of the appellant renders the decree in-executable and ineffective? 3. Whether the notice under Section 106 of the T.P. Act terminating the tenancy is defective for want of 15 clear days notice ending in a month? 4. Whether the plaintiff alone was competent to issue notice under Section 106 of the T.P. Act when the other co-owners and co-sharers have not given consent either expressly or impliedly and have conflict of interest? 2. In order to decide the above questions, it would be appropriate to state the facts of the case in gist, which are as follows: The sole respondent filed a suit for eviction of the appellant from the suit premises and for damages. It was the case of the plaintiff-respondent that the deceased father of the plaintiff-respondent, namely, Ananta, let out the ancestral house consisting of two rooms with a Verandha in its rear side to late Hariram Kedia, father of the present appellant who was the defendant, in the year, 1965. The said house appertained to Holding No. 80 in Ward No. 2 of Dhenkanal Municipality corresponding to present Holding No. 158 in Ward No. 10. After death of the original tenant, the appellant-defendant came into possession of the suit house as the sole tenant. The original Landlord i.e. the father of the plaintiff, expired in the year 1982 whereas his mother has expired on 2.12.1997 at Kolkata. The plaintiff in December, 2001 requested the defendant to vacate the suit house within six months as he required the premises for use of his son. Previously an amount of Rs. The original Landlord i.e. the father of the plaintiff, expired in the year 1982 whereas his mother has expired on 2.12.1997 at Kolkata. The plaintiff in December, 2001 requested the defendant to vacate the suit house within six months as he required the premises for use of his son. Previously an amount of Rs. 1,20,000/-was paid by the defendant-appellant to the plaintiff as well as his mother for sale of the suit house in favour of the defendant. The said amount, however, was returned to the defendant on 18.11.2002. On 19.4.2003, the defendant sent an amount of Rs. 2100/-by way of draft along with a registered letter requesting him to accept the same towards rent of 15 months of his 7/15 share. As per the said letter, rest portion of the rent at the rate of Rs. 300/-per month was due to his four sisters. The plaintiff refused to receive the demand draft and also served a pleader’s notice on 8.5.2003 seeking the defendant to vacate the suit premises within 15 days of receipt of the same. As per the said notice, the plaintiff being the only son of his father badly needed the suit premises and failure to vacate the said premises within the stipulated period would make the defendant liable for payment of Rs. 200/-per day towards damages as trespasser. The notice also revealed that the rent of the suit premises was Rs. 300/-per month. It was further alleged by the plaintiff that in spite of the said notice, the appellant-defendant instead of vacating the premises replied through his Advocate revealing his intention not to vacate the suit premises as requirement of the plaintiff is not genuine. It was asserted by the plaintiff that the defendant is to be treated as trespasser. 3. The appellant-defendant in his written statement while pleading that the suit in the present form is not maintainable due to want of cause of action and bad for non-joinder of necessary parties and for indefiniteness, inter alia, stated that the plaintiff has suppressed that he has four sisters, namely, Dr. Jayashree Patnaik, Smt. Manjushree Das, Smt. Subhrasi Choudhury and Smt. Suvra Basu. The defendant admitted that his father was a tenant under the father of the present plaintiff in respect of the suit house, but disputed that the suit house consists of two rooms with Verandha to its rear side. Jayashree Patnaik, Smt. Manjushree Das, Smt. Subhrasi Choudhury and Smt. Suvra Basu. The defendant admitted that his father was a tenant under the father of the present plaintiff in respect of the suit house, but disputed that the suit house consists of two rooms with Verandha to its rear side. He further pleaded that the house in question was taken on lease by his father for commercial purpose situated in Ward No. 11 under Holding No. 158. He did not admit that the plaintiff expressed his intention in the month of December, 2001 that his son would settle in the suit house to look after the ancestral property as pleaded in the plaint. He further contended that the suit house cannot be used for residential purpose. He also pleaded that Rs. 1,20,000/-was paid towards part consideration to the plaintiff and his mother to alienate the suit premises in his favour, who instead of executing the sale deed in his favour returned the advance amount on which he is entitled for damages at the rate of 18% per annum. He further contended that the sisters of the plaintiff intimated him in writing for sale of the suit land as per the terms of the agreement dated 27.3.1991 and further intimated him in letters dated 15.12.2002 and 5.1.2003 claiming their shares from out of the house rent. He asserted that sending the amount of Rs. 2100/-towards share of the plaintiff for 15 months’ rent was legal and proper. It was further asserted by him that the plaintiff cannot claim to be the sole owner of the suit property and he is not a trespasser. He denied the claim for damages as made out by the plaintiff. 4. The trial court on the pleadings of the parties framed as many as eight issues and came to the following findings on scrutinizing the evidence on record: 1. The suit property is the ancestral residential house-cum-commercial shop house of the plaintiff. 2. The suit is not bad for non-joinder of necessary parties. 3. The plaintiff is entitled to evict the defendant from the suit house. 4. The plaintiff is entitled for damages as claimed for and is entitled to get such damages till the actual date of recovery of possession of the suit house from the defendant. 5. The suit is not bad for indefiniteness of the suit property. 6. 3. The plaintiff is entitled to evict the defendant from the suit house. 4. The plaintiff is entitled for damages as claimed for and is entitled to get such damages till the actual date of recovery of possession of the suit house from the defendant. 5. The suit is not bad for indefiniteness of the suit property. 6. There is a cause of action for the plaintiff to institute the suit and the plaintiff is entitled for eviction of the defendant as well as for damages along with cost. 5. With the above findings, the trial court decreed the suit on contest against the defendant with cost directing the defendant to give vacant possession of the suit premises to the plaintiff within one month hence and pay damages at the rate of Rs. 200/-per day from 20.6.2003 till the actual date of recovery failing which the plaintiff is to recover the vacant possession of the suit house along with damages through process of law. 6. The defendant being aggrieved by the judgment of the trial court preferred RFA No. 10 of 2004 before the learned District Judge, Dhenkanal. The learned District Judge, Dhenkanal by his judgment, referring to various case laws confirmed the findings of the trial court, but, however, with regard to the quantum of damages, he held that the trial court has adopted a course of its own in assessing the damages per day which is not permissible under law. The house rent per month being Rs. 300/-in the absence of any cogent evidence relating to the present market rent for such house in that particular area, the damages decreed by the trial court is disproportionate and excessive and as such, he reduced the damages to Rs. 20/-per day. With the above modification with regard to the quantum of damages decreed by the trial court, the lower appellate court confirmed the said decree for eviction and damages. Being aggrieved, the appellant-defendant has preferred the present second appeal, which has been admitted on the substantial questions of law as enumerated above. 7. 20/-per day. With the above modification with regard to the quantum of damages decreed by the trial court, the lower appellate court confirmed the said decree for eviction and damages. Being aggrieved, the appellant-defendant has preferred the present second appeal, which has been admitted on the substantial questions of law as enumerated above. 7. Upon hearing learned counsel for the respective parties, this Court finds that learned counsel for the appellant has not raised any contention with regard to the substantial question of law as to whether the notice under Section 106 of the T.P. Act terminating the tenancy is defective for want of 15 clear days notice ending in a month inasmuch as Section 106 of the T.P. Act has been amended in the meanwhile and in view of the amended provision, the above question no more survives determination in the second appeal. 8. With regard to the first substantial question of law “whether the suit for eviction is defective and not maintainable in the absence of the four sisters of the plaintiff being impleaded as parties?”, it is seen that the said question was raised before the lower appellate court and was negatived. It is not disputed that Ananta Charan Patnaik, father of the appellant-defendant, let out the suit house to the father of the respondent. After his death, his widow (since deceased), the respondent (son) and his four sisters succeeded to the said property. It is a well settled proposition of law that a suit for eviction of a tenant by a co-owner without impleading the other co-owners will not be maintainable, is not an universal rule but it is to be decided in the facts and circumstances of each case and the evidence led by the parties as to whether the co-owner filing the suit can be said to have assumed the character of the sole Landlord. In the case of Sri Ram Pasricha v. Jagannath and others, AIR 1976 SC 2335 , the Supreme Court dealing with a case under West Bengal Premises Tenancy Act (12 of 1956) laid down that jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the provisions of the aforesaid Act. It is not necessary for him to establish that he is the only owner of the property for the purpose of the said Act so long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants. (Emphasis supplied). At this juncture, it may be stated that as a finding of fact, the courts below found that the appellant after death of the father of the respondent has accepted the respondent and his mother as his landlord and has admitted to be paying rent to either the respondent or his mother when she was alive for the suit premises. 9. It is a well settled proposition of law that one of the successors to the property while in jointness can always maintain a suit against the tenant for eviction from out of the joint property unless a conflict between the co-sharers is brought out on evidence. Such a case has not been established by the appellant. This Court, therefore, while answering the above substantial question of law finds that the courts below are right in holding that the suit for eviction is maintainable at the behest of the sole respondent-plaintiff. Further, the substantial question of law “whether the respondent was competent to issue notice under Section 106 of the T.P. Act without consent of the co-owners/co-sharers?”, no more remains to be decided as it being already held above that the suit was maintainable by the sole plaintiff who was one of the co-owners/co-sharers of the suit property. There can be no doubt that he having assumed the character of the sole landlord was competent to issue notice under Section 106 of the T.P. Act. 10. The only other substantial question of law remains to be dealt with whether non-impletion of the other co-tenants of the appellant renders the decree in-executable and ineffective. There can be no doubt that he having assumed the character of the sole landlord was competent to issue notice under Section 106 of the T.P. Act. 10. The only other substantial question of law remains to be dealt with whether non-impletion of the other co-tenants of the appellant renders the decree in-executable and ineffective. With regard to the above substantial question of law, it would be profitable to refer to the decisions in the case of H.C. Pandey –v-G.C. Pal, AIR 1989 SC 1470 and Karayadathil Kunhimoosa Manjerintha and another –v-Valiaparambath M.T. Kalliani (SMT) and others, 1995 Supp. (3) SCC 403, which were referred to by the lower appellate court in his judgment. In the case of H.C. Pandey (supra), the Supreme Court dealt with the question as to whether the notice addressed to the respondent alone in the said case is a valid notice or not. With regard to the same, the Supreme Court in para-4 of the judgment held as follows: “It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefor. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants. In the present case, it appears that the respondent acted on behalf of the tenants, that he paid rent on behalf of all and he accepted notice also on behalf of all. In the circumstances, the notice served on the respondent was sufficient. It seems to us that the view taken in Ramesh Chand Bose ( AIR 1977 All 38 ) (supra) is erroneous where the High Court lays down that the heirs of the deceased tenant succeed as tenants in common. In the circumstances, the notice served on the respondent was sufficient. It seems to us that the view taken in Ramesh Chand Bose ( AIR 1977 All 38 ) (supra) is erroneous where the High Court lays down that the heirs of the deceased tenant succeed as tenants in common. In our opinion, the notice under S. 106 of the Transfer of Property Act served by the appellant on the respondent is a valid notice and therefore the suit must succeed.” This view has again reiterated in the case of Karayadathil Kunhimoosa Manjerintha and another v. Valiaparambath M.T. Kalliani (SMT) and others, 1995 Supp. (3) SCC 403 by the Apex Court. 11. In view of such position of law, it can be safely concluded that as notice to one of the co-tenants who succeeded to the tenancy after death of the original tenant, Section 106 of the Transfer of Property Act is to be construed as a valid notice in respect of all the co-tenants. There was no requirement for impleading all the co-tenants as parties to the suit. 12. In view of the above, this Court finds that the second appeal holds no merit. The second appeal is accordingly dismissed, but in the circumstances, without cost.