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2015 DIGILAW 1176 (KAR)

SURENDRA DARAPPA SHETTY v. MOHAMMAD ALI

2015-10-09

B.VEERAPPA

body2015
JUDGMENT : This is an unsuccessful 1st defendant’s Regular Second Appeal against the judgment and decree dated 25.08.2014 made in R.A. No.36/2009 on the file of the III Addl. Senior Civil Judge, Dharwad, confirming the judgment and decree dated 01.04.2009 made in O.S. No.131/2006 on the file of the II Addl. Civil Judge (Jr. Dn.) & JMFC II, Dharwad decreeing the suit of the plaintiff in part with costs, directing the defendants to hand over the suit property to the plaintiff within one month from the date of the order and as far as the question of arrears of rent and mesne profits is concerned, requires separate enquiry as contemplated under Order XX Rule 12 of the Code of Civil Procedure. 2. The brief facts of the case are as under: The present respondent was the plaintiff in the Trial Court filed suit for recovery of possession and arrears of rent contending that originally the suit schedule property belongs to one M.A. Contractor, who leased out the entire suit property to K.M.Shetti and C.K.Shetti and they were running vegetarian restaurant by name “Hotel Manorama” and defendant No.1 was working as a Manager in the said restaurant and after sometime, the said K.M.Shetti and C.K.Shetti left the suit premises and defendant No.1 remained and continued the business and the lease between original owner and defendant No.1 used to commence on first day of each month and used to end on the last day of the month. The said original owner M.A.Contractor has sold the property in favour of the plaintiff and his mother under a registered sale deed dated 14.09.1987 for valuable consideration of Rs.1,60,000/by delivering the possession of the said property to the plaintiff on the same day. From the date of execution of the sale deed, the defendant No.1 continued to be tenant under the plaintiff and tenancy used to commence on first day of each month and used to end on last day of the month. Plaintiff’s mother expired in the year 1990 and after her death plaintiff continued to be the sole owner of the suit property. Thereafter, the plaintiff went to Saudi Arabia and hence, he executed power of attorney in favour of one K.M.Mulla to look after the suit property. Thereafter, defendant No.1 without consent of the plaintiff has subleased the suit premises to defendant Nos.2 and 3 in the year 1998. Thereafter, the plaintiff went to Saudi Arabia and hence, he executed power of attorney in favour of one K.M.Mulla to look after the suit property. Thereafter, defendant No.1 without consent of the plaintiff has subleased the suit premises to defendant Nos.2 and 3 in the year 1998. Defendant No.2 was running a vegetarian khanavali by name “Basaveshwara Khanavali”. Defendant No.3 was running a non-vegetarian khanavali by name “Hotel Bismilla”. Defendant No.1 was collecting a rent of Rs.450/per day and Rs.100/per day from defendant Nos.2 and 3 and same has not been paid to the plaintiff by defendant No.1 and further contended that defendant No.1 unauthorisedly and illegally extended the building on right side and in the front side of the suit property. The said extension was demolished by the (Hubli Dharwad Muncipal Corporation) Authorities in “Operation Footh Path” which has resulted in severe loss and damage to the suit premises and consequently, the suit property is in dilapidated condition. When the GPA holder of the plaintiff tried to stop defendant No.1 from all those acts by requesting him, defendant No.1 filed suit O.S. No.261/2005 against the power of attorney holder before Civil Court seeking the relief of permanent injunction and the hotel was running by the 1st defendant named as M/s. Manorama under the license of Labour Department was in force up to 31.12.1997 and thereafter, the defendant No.1 was not in possession of the suit premises and he was not running any restaurant. On the other hand, he had subleased it to defendant Nos.2 and 3 unauthorisedly, who are running the hotels and they are in illegal occupation of the suit premises and further contended that the suit schedule property required by the plaintiff for his own bona fide use and occupation and therefore, requested the defendants to vacate the premises, but defendants did not heed to the request of the plaintiff. Ultimately, the plaintiff had issued a legal notice to the defendants dated 05.12.2005 terminating the tenancy of the defendants from the last day of December 2005. Despite issuance of notice, the defendants continued to be in illegal possession and enjoyment of the suit property. Therefore, he filed the suit for ejectment/possession. 3. In pursuance of the summons issued, the defendant Nos.1 to 3 have appeared through advocate, but despite several opportunities they did not file written statement. Despite issuance of notice, the defendants continued to be in illegal possession and enjoyment of the suit property. Therefore, he filed the suit for ejectment/possession. 3. In pursuance of the summons issued, the defendant Nos.1 to 3 have appeared through advocate, but despite several opportunities they did not file written statement. Hence, the written statement of defendant Nos.1 to 3 was taken as not filed and subsequently they filed application for permission to file written statement by condoning the delay and the same was rejected and defendants 1 to 3 filed Writ Petition No.31399/2008 before this Court against rejection and the said writ petition came to be dismissed on 27.11.2008 and the said order is final and conclusive. 4. Based on the plaint averments, the Trial Court framed the following issues: “i. Whether the plaintiff proves that there exists a landlord and tenant relationship between him and the defendants? ii. Whether the termination of tenancy is in accordance with law? iii. Whether the plaintiff is entitled for vacant possession of suit schedule property and for arrears of rent as claimed in the plaint? iv. What order or decree?” 5. The plaintiff examined himself as P.W.1, marked documents Exs.P1 to P19. Defendants have not lead any evidence. 6. After considering the plaint averments and both oral and material documents, the Trial Court recorded a finding that the plaintiff proved that there exists a landlord and tenant relationship between him and defendants and proved that termination of tenancy was made in accordance with law and plaintiff is entitled for vacant possession of suit schedule properties reserving liberty to file a separate enquiry for mesne profits. 7. Against the said judgment and decree, the 1st defendant alone filed R.A. No.36/2009 before the III Additional Senior Civil Judge, Dharwad, who after hearing both the parties by his impugned judgment and decree dated 25.08.2014 dismissed the appeal and confirmed the judgment and decree of the Trial Court. 8. Against the concurrent findings of fact recorded by the Courts below did not deter the 1st defendant in preferring this Regular Second Appeal as a last ditch attempt. 9. I have heard the learned counsel for the parties to the lis. 10. 8. Against the concurrent findings of fact recorded by the Courts below did not deter the 1st defendant in preferring this Regular Second Appeal as a last ditch attempt. 9. I have heard the learned counsel for the parties to the lis. 10. Smt. Shaila S. Bellikatti, learned counsel for the appellant strenuously contended that there is no relationship between the landlord and the tenant and the plaintiff has not produced any material document to prove the relationship and no opportunity was given to the defendant before the Courts below. The judgment and decree of the Courts below decreeing the suit is erroneous, contrary to law and therefore, she sought to set aside the judgment and decree of the Courts below. 11. Per contra, Shri K.L.Patil, learned counsel for the caveator sought to justify the impugned judgment and decree of the Courts below. 12. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties to the lis and perused the entire material on record. 13. The substance of the plaintiff – landlord case before the Trial Court was that the suit schedule property originally belongs to M.A. Contractor and the same was purchased by the plaintiff under a registered sale deed dated 14.09.1987 and the 1st defendant was the tenant under him and he continued to be the tenant and defendant No. 1 sublet the same to defendant 2 to 3 and has not paid any rents and the suit schedule property is dilapidated condition and required for his bona fide use and occupation. 14. Though the defendants have served and represented by their learned counsel before the Trial Court, in spite of sufficient opportunity given, they have not filed any written statement nor adduced any evidence except cross-examination of P.W.1. 15. 14. Though the defendants have served and represented by their learned counsel before the Trial Court, in spite of sufficient opportunity given, they have not filed any written statement nor adduced any evidence except cross-examination of P.W.1. 15. The Trial Court considering the entire material, both oral and documentary evidence on record i.e., evidence of P.W.1 material document Exs.P1 to P19 has come to the definite conclusion that the plaintiff is the owner of the property in question especially in pursuance of the registered sale deed dated 14.09.1987 as per Ex.P2 and also held that the landlord has complied the provisions of Section 106 of the Transfer of Property Act, 1882 by issuing legal notice as per Ex.P9 and postal receipts are having sent through registered post as Exs.P9(a) to (c) and postal acknowledgments Exs.P9(d) to (f) and recorded a finding that the present defendant who was the plaintiff in O.S. No.261/2005 in his evidence admitted the relationship of landlord and tenant. But has not denied the title of the present plaintiff over the suit property and the present plaintiff in the crossexamination specifically stated that after he purchased the suit property has informed the occupants/defendants that he has purchased the same and they should pay rent to him and admittedly defendant No.1 is in possession. Then if he claims that he is not tenant under P.W.1, then question arises in what capacity it continues to be in possession of suit property. Admittedly, if he has not trespassed and he has deposed as PW 1 in O.S. No.261/2005 that he is on yearly tenant in the suit property since 40 years. In the crossexamination he has categorically stated that he has document to show that he has taken suit property on lease and he has paid rent. However, he has stated that he has not produced the same before the Court. The admission on the part of the 1st defendant clearly show that he has been in possession of the suit property as tenant. Further, the defendants are tenants of the suit property which is clear from the notice issued by the plaintiff under Ex.P9 and accordingly, the plaintiff has complied the provisions of Section 106 of the Transfer of Property Act, 1882. Therefore, the Trial Court opined that from 01.01.2006 the occupation of the tenants/defendant Nos.1 to 3 in the plaint schedule is against law. Therefore, the Trial Court opined that from 01.01.2006 the occupation of the tenants/defendant Nos.1 to 3 in the plaint schedule is against law. Plaintiff has issued notice requesting the defendants to vacate the premises, but they have not vacated. Thus, the possession of the defendants after issuance of termination of notice is illegal and they have not replied. Therefore, it goes to show that the defendants have accepted the claim of the plaintiff with respect of ownership and arrears of rent. Therefore, the defendants are liable to hand over vacant possession of the suit property to the plaintiff. Accordingly, the suit came to be decreed granting one month’s time to defendants to vacate and hand over vacant possession of the suit property to the plaintiff. 16. On re-appreciation of the entire material on record, the lower Appellate Court concurred with the findings of fact recorded by the Trial Court, recorded a finding that during the course of cross-examination, P.W.1 on behalf of defendants a suggestion was made that he is neither the owner nor the landlord of the suit property. P.W.1 has specifically denied the said suggestion. It is pertinent to note that it is well established principles of law that a suit for eviction the tenant is estopped from questioning title of the land lord. Further the plaintiff purchased the suit property by operation of law become the landlord of the defendant. The oral and documentary evidence adduced by the plaintiff clearly established that after he become owner of the suit property, defendant become the tenant under him with respect of the suit property and defendant No.1 has subleased the suit property in favour of defendant Nos.2 and 3. The notice issued by the plaintiff under Ex.P9 served on the defendants as per Exs.P9(a) to (f). In the cross-examination of P.W.1 defendants have not denied issuance of notice Ex.P9 of termination of tenancy and service of notice on them. The plaintiff has specifically pleaded in the plaint and stated in his evidence that the tenancy of defendant No.1 commence on first day of every month and ends in the last day of the month. In nutshell, it is the case of the plaintiff that tenancy of the 1st defendants is monthly tenancy. The defendant has not produced any material document to show that he was yearly tenant under the earlier owner of the suit property. In nutshell, it is the case of the plaintiff that tenancy of the 1st defendants is monthly tenancy. The defendant has not produced any material document to show that he was yearly tenant under the earlier owner of the suit property. Under the provisions of Section 106 of the Transfer of Property Act, 1882 in the absence of written contract of a lease immovable property for agricultural or manufacturing purposes shall be deemed to be leased from year to year terminable by six months. A lease of immovable property by any other purpose shall be deemed to be a lease from month to month terminable by giving 15 days notice. 17. In the instant case, there was no written contract between the plaintiff, earlier owner of the suit property and the defendant No.1. Therefore, second part of Section 106 of the Transfer of Property Act, 1882 is applicable to the case on hand. Plaintiff by issuing clear 15 days notice, has terminated tenancy of the defendants. Thought defendant Nos.2 and 3 are not tenants of the plaintiff, defendant No.1 has sublet the suit property to them. Therefore, the plaintiff has caused notice of termination of tenancy to them. The plaintiff has terminated the tenancy of defendants validly under the provisions of Section 106 of the Transfer of Property Act, 1882. Accordingly, the lower Appellate Court dismissed the appeal. 18. It is not in dispute that the 1st defendant who was tenant under original owner M.A.Contractor and it is also not in dispute that the 1st defendant filed earlier O.S. No.261/2005 for permanent injunction against the plaintiff who was the P.A.Holder M.A.Mulla in para 3 of the deposition as P.W.1 in O.S. No.261/2005 the present 1st defendant has specifically stated as under: “3. I stated that I took the premises on lease from M.A.Contractor on earlier rent of Rs.1,000/. Further I stated that I am in occupation vahivat and lawful possession and enjoyment of suit property as a tenant since more than 40 years.” 19. It is also not in dispute the earlier suit filed by the 1st defendant in O.S. No.261/2005 for perpetual injunction. The Trial Court dismissed the suit. Aggrieved the said judgment and decree, the present defendant filed R.A. No.36/2009. The said appeal came to be dismissed which is final and conclusive. 20. It is also not in dispute the earlier suit filed by the 1st defendant in O.S. No.261/2005 for perpetual injunction. The Trial Court dismissed the suit. Aggrieved the said judgment and decree, the present defendant filed R.A. No.36/2009. The said appeal came to be dismissed which is final and conclusive. 20. It is an admitted fact in the present case that, in spite of sufficient opportunity given to the defendants though represented by learned counsel, have not filed any written statement nor adduced any evidence except cross-examination of P.W.1 and there is no suggestion to deny the tenancy to the P.W1. It is also not in dispute that in the present suit defendant 1 to 3 have filed application for permission to file written statement and the Trial Court by an order dated 21.10.2008 has rejected the application I.A. No.7 for permission to condone the delay and to file written statement. The said order was subject matter before this Court in Writ Petition No.31399/2008. This Court after hearing both the parties by its order dated 27.11.2008 has dismissed the writ petition and specifically held in para 6 as follows: “6. From the material on record, it is clear the defendant was not diligent in prosecuting the matter. He engages a counsel. He does not come to the Court. His counsel was cross-examines the plaintiff. It is after the close of the cross-examination of the plaintiff and when he was not permitted to adduce evidence on the ground, no written statement was filed, wakes up and files written statement along with an application to condone the delay. The cause shown is that he was not attending the Court regularly as he went out of station for business purpose and he could not instruct his lawyer. From the material on record, it is clear that the defendant is trying to be too smart and wanted to delay and drag on the suit for ejectment and unfortunately, he has not been successful. This is precisely the reason why CPC is amended by the Apex Court to condone the delay beyond 90 days only in exceptional circumstances where the bone fides is established on the part of the party. This is precisely the reason why CPC is amended by the Apex Court to condone the delay beyond 90 days only in exceptional circumstances where the bone fides is established on the part of the party. In a case where the defendant has acted smartly and wants to drag on the proceedings and when he proceeds to crossexamine, it means he does not want to file the statement and he knew fully the consequences. He cannot be permitted to file written statement. The Trial Court was fully justified in rejecting such an application. Hence, no grounds dismissed.” The said order passed by this Court is final and conclusive. 21. In view of the aforesaid admitted facts and in view of the specific statement made by the defendant No.1 in OS 261/2005 as P.W.1 which clearly indicates that there exists the relationship of landlord and tenant between the plaintiff and 1st defendant. Therefore, the contentions of the learned counsel for the appellant that there is no relationship of landlord and tenant cannot be accepted. There exists relationship of landlord and tenant between the plaintiff and 1st defendant. In the very suit filed by the defendant on earlier occasion in O.S.No.261/2005, has admitted that he was tenant under the original owner for more than 40 years. When he admitted the ownership of earlier owner and not disputed the purchase of the suit schedule property by the plaintiff under registered sale deed dated 14.09.1987 from the previous owner under Ex.P.2, he cannot dispute the title of the plaintiff. 22. The provisions of Section 109 of Transfer of Property indicates that a transferee of the landlord’s rights steps into the shoes of the landlord with all the rights and liabilities of the transferor landlord in respect of the subsisting tenancy and the said provision does not require the transfer of right of the landlord can take effect only if the tenant attorns to him. Attornment by the tenant is not necessary to confer validity of transfer of the landlords rights. Since the attornment by the tenant is not required a notice under Section 106 of the Act would proper. My view is fortified by the Hon’ble Supreme Court in the case of Achal Misra vs. Ramashanker Singh and others, reported in (2005)5 SCC 531 . So also in the case of Mahendra Raghunath Das Gupta Vs. Since the attornment by the tenant is not required a notice under Section 106 of the Act would proper. My view is fortified by the Hon’ble Supreme Court in the case of Achal Misra vs. Ramashanker Singh and others, reported in (2005)5 SCC 531 . So also in the case of Mahendra Raghunath Das Gupta Vs. Vishwanath Bhikagi Mogul, reported in (1997) 5 SCC 329 . Therefore, the contention of the learned Counsel for the appellant that the landlord has not produced any material documents to prove the relationship also cannot be accepted. 23. It is most unfortunate that, the appellant claiming tenancy under the original owner M.A. Contractor denied the relationship of the present plaintiff who purchased the property under registered sale deed dated 14.09.1987 and the plaintiff has issued notice under Section 106 of the Transfer of Property Act as per Ex.P.9. Admittedly, the notice was served to all the defendants and they have not replied. Mere denying the relationship of the plaintiff, the present defendant has dragged the proceedings from the year 2005 till today successfully without paying any rent. Such a conduct of the tenant cannot be encouraged. The conduct of defendant-tenant is nothing but a daring ride on Court by abusing the process of the court and obstructing the administration of justice. 24. Both the courts below based on the oral and documentary evidence on record has concurrently held that the plaintiff has proved that there exists relationship of landlord and tenant between him and the defendants and notice issued under Section 106 of the Transfer of Property Act is in accordance with law and plaintiff is entitled for vacant possession of the suit schedule property within one month and also observed that there must be enquiry for arrears of rent under the provisions of Section 20 Rule 12 of Code of Civil Procedure. The said findings of fact cannot be interfered with by this Court exercising powers under the provisions of Section 100 of Code of Civil Procedure. No Substantial question of law is involved in the present Regular Second Appeal. Accordingly, the Regular Second Appeal is dismissed with costs of Rs.5,000/.