Research › Search › Judgment

Karnataka High Court · body

2023 DIGILAW 859 (KAR)

Mahboob Sab v. Peersab

2023-07-07

C.M.JOSHI

body2023
JUDGMENT 1. This second appeal is directed against the concurrent findings by the learned Principal Civil Judge (Jr.Dn), Sindhanur, in OS No.89/2008 dtd. 7/4/2010 and the learned Senior Civil Judge and JMFC, Lingasugur, in RA No.5/2010 dtd. 30/6/2011, whereby, the suit filed by the plaintiff came to be dismissed. 2. The parties would be referred to as per their ranks before the Trial Court for the sake of convenience. 3. Brief facts are as below: The appellant/plaintiff filed a suit for possession of the suit schedule property contending that the Paradi No.8/4 measuring 06 guntas at Ward No.6, Katebase Lane of Sindhanur, is the property belonging to him on the basis of a Gift Deed dtd. 3/9/1981. He contended that originally, the suit schedule property belonged to his maternal grand father Jalalsab and after his demise it devolved upon his son Abdul Karim Sab. He had no issues and therefore, he adopted the plaintiff as his son and the plaintiff was looking after him. Out of love and affection, Abdul Karim Sab, executed the Gift Deed on 3/9/1981 in favour of the plaintiff and since then he is the owner in title of the suit property. Accordingly, his name appears in the municipal records. In a portion of the said property measuring 06 guntas, he has put up a shed measuring 30 feet North-South and 30 feet EastWest for his residence. The defendant No.1 was residing at Javalagera and having no work at Javalagera village he returned to Sindhanur. He requested the plaintiff to help him and therefore, the plaintiff gave a portion of the said shed measuring East-West 30 feet and North-South 15 feet for his residence. The defendant No.1 had agreed to pay the rent for his residence in the said shed and agreed to vacate the same whenever the plaintiff demands. The plaintiff further contended that the defendant No.1 was staying in the said shed along with defendant Nos. 2 and 3 and defendants did not pay the rent and therefore, the plaintiff requested the defendants to pay the rent and to vacate the shed. When they did not heed to the request, a panchayat was held, who advised the defendants but it went in vain. Therefore, the plaintiff got issued a legal notice to the defendants on 11/2/2008 calling upon them to vacate the said shed which they did not comply despite receiving the notice. When they did not heed to the request, a panchayat was held, who advised the defendants but it went in vain. Therefore, the plaintiff got issued a legal notice to the defendants on 11/2/2008 calling upon them to vacate the said shed which they did not comply despite receiving the notice. Therefore, it is contended that the defendants be directed to handover the possession of the suit property i.e. the shed occupied by the defendants. 4. In response to the summons, the defendants appeared through their counsel and filed the written statement contending that the suit of the plaintiff is misconceived and the suit is not maintainable. They contended that the entire Paradi No.8/4 is only in respect of the portion held by the plaintiff and not the entire 06 guntas of land. They admitted that the property held by Jalalsab had devolved upon his son Abdul Karim Sab. They also admitted that Abdul Kareem Sab had no issues and they pleaded ignorance about the alleged adoption of the plaintiff by Abdul Karim sab. They contended that the Abdul Karim Sab was also residing with the plaintiff as well as the defendant No.1 and denied that Abdul Karim Sab had executed the Gift Deed in favour of the plaintiff. They contended that if at all any such Gift Deed is executed, it is fraudulent and without the knowledge of the defendant No.1 and is intended to knock down the entire property by himself. Thus, they contended that the alleged Gift Deed is not binding on them. It is contended that TMC Number shown in the plaint pertains to the extent in possession and enjoyment of the plaintiff which is to the extent of 90 feet x 120 feet only and it do not include the portion in which the defendant Nos. 1 and 2 are in possession which is measuring 20 feet x 60 feet. They contended that a portion of the property occupied by the plaintiff was assigned in favour of his wife. It is contended that the defendant Nos. 1 and 2 were regularly paying tax over the extent of land held by them since the year 1968 and there was an oral partition of the properties between the plaintiff, defendant No.1 and another brother Mehamood. It is contended that the defendant Nos. 1 and 2 were regularly paying tax over the extent of land held by them since the year 1968 and there was an oral partition of the properties between the plaintiff, defendant No.1 and another brother Mehamood. The defendants denied that they were the tenants or in permissive possession of the suit schedule property and they had never agreed to vacate the suit schedule property at any time, much less, before the panchas. Hence, they contended that when there was no such rental agreement/lease, the question of payment of rent do not arise. They contended that the defendant Nos. 1 and 3 being not in station and the defendant No.2 being illiterate, the postal covers were not received by them and the authorities had returned the same as 'refused'. 5. They contended that in the year 1968, the suit property was partitioned between the plaintiff, defendant No.1 and another brother Mehamood. In the said partition, the house property in Sindhanur in Paradi No.8/4 was allotted to the plaintiff and the defendant No.1 and out of it, on the northern side plaintiff was allotted his share and on the other southern side defendant No.1 was allotted his share. The written statement narrates the manner in which the division took place and contend that the municipal entries were entered accordingly. 6. On the basis of the above pleadings, the following issues were framed and they were answered by the Trial Court as below: 7. In the process, the plaintiff was examined as PW1 and Exs.P1 to P22 were marked and defendant No.1 was examined as DW1 and Exs.D1 to D23 were marked and one witness was examined on their behalf as DW2. 8. After hearing the arguments, the Trial court dismissed the suit on the ground that the notice of termination of the tenancy was not proper and it failed to adhere to the mandatory requirements of law. 9. Aggrieved by the dismissal of the suit by the Trial Court, the plaintiff approached the First Appellate Court in RA No.5/2010. After hearing both the sides, the First Appellate Court framed following points for consideration and answering them against the plaintiff, dismissed the appeal: 10. Aggrieved by the concurrent findings, the plaintiff has approached this Court in second appeal. 11. Aggrieved by the dismissal of the suit by the Trial Court, the plaintiff approached the First Appellate Court in RA No.5/2010. After hearing both the sides, the First Appellate Court framed following points for consideration and answering them against the plaintiff, dismissed the appeal: 10. Aggrieved by the concurrent findings, the plaintiff has approached this Court in second appeal. 11. The appellant/plaintiff contends that both the Courts below have failed to notice the fact that a legal notice was issued on 11/2/2008 as per Ex.P17 calling upon the defendants to handover the vacant possession of the suit property. Therefore, there was sufficient compliance of Sec. 106 of Transfer of Property Act, (hereinafter referred to as 'T.P. Act for brevity). Merely because the word 'termination' is not used in the said notice, the relief of possession cannot be denied. It is further contended that when the defendants have set up title themselves and denied the title of the plaintiff, it is not necessary to issue notice terminating the tenancy. Therefore, the judgment and decree of both the Courts below are unsustainable under law. 12. At the time of admission, the following substantial question of law was framed by this Court: "Whether the Court below were justified in dismissing plaintiff's suit on the ground that Ex.P-17 notice was not in accordance with Sec. 106 of the Transfer of Property Act, in as much as there was no express termination of tenancy by the appellant - plaintiff, by ignoring Sec. 111(h) of the said Act?" 13. On issuance of notice, respondents have appeared through their counsel. 14. During the pendency of this appeal, the appellant as well as respondent No.1 died and their legal representatives were brought on record. 15. The arguments by learned counsel for both the sides are heard. 16. The learned counsel appearing for the appellants submitted that Ex.P17 complies all the requirements of notice of termination of the tenancy. He contends that the intention of the plaintiff is very well decipherable from a bare reading of Ex.P17. Both the Courts below have dismissed the suit only on the ground that Ex.P17 is faulty. Hence, he submitted that the view taken by both the Courts below is not sustainable under law and as such, the suit deserves to be decreed. 17. Both the Courts below have dismissed the suit only on the ground that Ex.P17 is faulty. Hence, he submitted that the view taken by both the Courts below is not sustainable under law and as such, the suit deserves to be decreed. 17. Per contra, the learned counsel for the respondents/defendants submit that the Trial Court as well as the First Appellate Court have properly appreciated Ex.P17 and they have given sufficient reasons to hold that the termination was not proper. Therefore, he contends that the dismissal of the suit by both the Courts is proper and no interference is required. 18. The Trial Court while appreciating the evidence on record has held that Paradi No.8/4 in which the suit shed is situated, was acquired by the plaintiff under the Gift Deed executed by Abdul Karim Sab and the said Gift Deed is at Ex.P2. When the defendants had not produced any cogent evidence which would rebut the Ex.P2 and when they have only contended that they are not in the knowledge of Ex.P2, the title in respect of Paradi No.8/4 vests with the plaintiff. Further, the Trial Court came to the conclusion that the plaintiff had proved that he has let out the suit property to the defendant No.1 on lease. This finding of the Trial Court was not agitated before the First Appellate Court by the defendants. The judgment of the First Appellate Court shows that it has not specifically dealt with the issues framed and answered by the Trial Court. However, it came to the conclusion that no interference is required in impugned judgment. 19. The only issue which was answered against the plaintiff by the Trial Court was in respect of the requirement of contents of notice under Sec. 106 of the T.P. Act. In para 22 of the impugned judgment, the Trial Court considered the requirement of Sec. 106 of Transfer of Property Act. It observes as below: "..................... But the reasons best known to him has not issued any notice to the defendant No.1 by terminating his tenancy. In the absence of the notice the plaintiff is not entitled the possession from the defendant for non-compliance of mandatory provisions. It observes as below: "..................... But the reasons best known to him has not issued any notice to the defendant No.1 by terminating his tenancy. In the absence of the notice the plaintiff is not entitled the possession from the defendant for non-compliance of mandatory provisions. Merely on the ground that the plaintiff is the absolute owner of the suit schedule property, it does not mean that the plaintiff is entitled for the possession from the defendant No.1 or the defendants without complying the provision as stated above. Even the plaintiff in his plaint has not at all stated the monthly rent, due for arrears of rent by the defendant No.1. In the absence of the pleadings in the plaint it is very difficult to grant the relief as prayed in the plaint for lack of pleadings and the materials on record. It is an admitted fact that the plaintiff has got issued a legal notice to the defendants prior to filing of the suit and the said postal articles have returned with an endorsement that the defendants were absent for seven days and returned to sender that itself goes to show that the notices which were issued by the plaintiff are not served on the defendants. Moreover the Ex.P-17 is not issued U/Sec. 106 of Transfer of Property Act. The contents of the Ex.P-17 no where disclosed that the plaintiff has got issued a legal notice to the defendants by terminating their tenancy. ...............". 20. It is this observation of the Trial Court which called for framing of the above substantial question of law. 21. The Apex Court in the case of Burmah Shell Oil Distributing now known as Bharat Petroleum Corporation Ltd., Vs. Khaja Midhat Noor and others, (1988)3 SCC 44 . observes in para 9 as below: "9. The question is whether there was a valid notice. The High Court held that in the facts of this case, there was a valid notice of termination and after the valid notice of termination of the lease to the lessee, there was no need to give a fresh notice to the sub-lessee. Notice must be read in the context of the facts of each particular case having regard to the situation of the parties to whom it is addressed. Notice must be read in the context of the facts of each particular case having regard to the situation of the parties to whom it is addressed. In Harihar Banerji v. Ramasashi Roy at page 225, the Judicial Committee observed as follows: "................that notices to quit, though not strictly accurate or consistent in the statements embodied in them, may still be good and effective in law; that the test of their sufficiency is not what they would mean to a stranger ignorant of all the facts and circumstances touching the holding to which they purport to refer, but what they would mean to tenants, presumably conversant with all these facts and circumstances; and, further, that they are to be construed, not with a desire to find faults in them which would render them defective, but to be construed ut res magis valeat quam pereat." 22. In the case of Hiranand Vs. Umaid Raj, AIR 1973 Rajasthan 120= 1972 SCC online Rajasthan 42. precisely the question as to whether the notice of termination of tenancy was invalid was considered at length. In para-12 it was observed as below: "12. I have read these cases carefully. The underlying principle is that by the notice the landlord must manifest his intention to the tenant that from a certain date the relationship of landlord and tenant shall come to an end. Whether this was the intention or not by the giving of a particular notice will by and large, depend on the tenor of the notice. In Motilal vs. Pooranchand (5), Modi J. observed as follows:- "Where a notice of ejectment can be read in more ways than one, then the proper way to interpret it is to preserve its validity rather than to destroy it. In Motilal vs. Pooranchand (5), Modi J. observed as follows:- "Where a notice of ejectment can be read in more ways than one, then the proper way to interpret it is to preserve its validity rather than to destroy it. The provision as to notice being of a highly technical character the dictates of substantial justice, for which purpose, after all, the Courts exist, will hardly be served if notices of ejectment are to be read in a hyper-critical spirit and to find faults in them on every conceivable ground." Under our system of law, by words we are governed; we must be governed and ought to be governed by words but it has to be remembered that words divorced from the underlying idea which they are designed to convey will be empty vehicles and in order to gather the meaning of words we have to view them as a whole in a particular context. A word in one context may mean one thing and in another context it may mean a different thins. By and large they take their hue from the background. The purpose of interpreting a document is to reach the underlying intent of the author. The notice Ex. A/2 is no doubt not artistically worded. For example in the earlier Allahabad case (4) the notice was pronounced bad as it did not come up to the requisite standard. Here, to my mind, the intention is crystal clear that the landlord wanted to Put an end to the tenancy by a certain date .................." 23. The decision of the Delhi High Court in the case of Sky Land International Pvt.Ltd., Vs. Kavita P. Lalwani, RFA No.697/2010 DD 25/5/2012. chronicles various decisions of the Apex Court and other High Courts and culls out the position of law as below: "26. Summary of the principles of law From the analysis of the above decisions and the provisions with which we are concerned, the following principles emerge:- 26.1 Upon expiry of the term of the lease or on termination of the monthly lease by a notice to quit, the lessee must vacate the property on his own and not wait for the lessor to bring a suit where he can raise all kinds of contests in order to profit from Court delays. 26.2 Expiry of lease by efflux of time results in the determination of the relationship between the lessor and the lessee and no notice of determination of the lease is required. Mere acceptance of rent by the landlord from the tenant in possession after the lease has been determined either by efflux of time or by notice to quit would not create a tenancy so as to confer on the erstwhile tenant the status of a tenant or a right to be in possession. 26.3 Notice of termination of lease under Sec. 106 of the Transfer of Property Act sent by registered post to the tenant is deemed to be served under Sec. 27 of the General Clauses Act, 1897 and Sec. 114 of the Indian Evidence Act, 1872. 26.4 The object of the termination notice under Sec. 106 of the Transfer of Property Act is to communicate the intention of the landlord that he wants the premises back and to give 15 days" time to vacate. Such notice is not a pleading but a mere communication of the intention of the recipient. Such notice is to be liberally construed as the tenant's only right is to get notice of 15 days to vacate. The tenant is under a statutory obligation to vacate the subject property on the expiry of 15 days of the notice." 24. In the light of the above observations by the Apex Court and the other High Courts, it is clear that a notice of termination of tenancy need not specifically mention the word 'terminated'. It would suffice if the intention of the landlord to terminate the tenancy is expressed in the words known to the parties. The landlord, if express that he would not consider the tenant no more a tenant and calls upon him to vacate and handover the possession of the leased property, it would sufficiently comply with the requirement of law under Sec. 106 of T.P. Act. It is the intention of the parties which plays a pivotal role in interpreting a notice which is issued to the tenant. 25. It is the intention of the parties which plays a pivotal role in interpreting a notice which is issued to the tenant. 25. When we examine the Ex.P17 in the light of the expositions in the above decisions, it is clear that the plaintiff had asserted his right over the suit property as the owner and had brought to the notice of the defendants that he had acquired the title over the property on the bases of the registered gift deed executed by Abdul Karimsab; and the defendants had requested him to reside in the portion of the property as tenants and accordingly he had permitted the defendants to occupy; and that there was no written agreement; and that thereafter there was a criminal case which was registered and as such made his intention clear that the defendants should vacate the premises. In categorical words, the plaintiff had called upon the defendants to handover the possession of the property. There was no such ambiguity which the Trial Court and the First Appellate Court felt to come to the conclusion that the notice was not in conformity with the requirements of law under Sec. 106 of T.P.Act. Therefore, this Court comes to the conclusion that the Courts below were not justified in dismissing the suit of the plaintiff on the ground that Ex.P17 was not in accordance with Sec. 106 of T.P. Act. The notice need not have mentioned the word 'the termination of tenancy'. 26. Yet another aspect which is of relevance is, Sec. 111(h) of the T.P. Act, which reads as below: "111. Determination of lease.-A lease of immoveable property determines- xxxxxxx (h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other." 27. It is evident that there was no need for the plaintiff to mention the word 'termination' in the Legal Notice, but a mention to quit or of intention to quit the property leased would determine any such lease. Therefore, it is evident that the Trial Court as well as the First Appellate Court did not bestow their attention on the requirement of Sec. 106 of T.P.Act, coupled with Sec. 111(h) of the T.P.Act. Therefore, it is evident that the Trial Court as well as the First Appellate Court did not bestow their attention on the requirement of Sec. 106 of T.P.Act, coupled with Sec. 111(h) of the T.P.Act. Hence, the substantial question of law having been answered in the negative and in favour of the plaintiff, the findings of the Trial Court as well as the First Appellate Court regarding termination of the tenancy are not sustainable under law. 28. The other issues are held in favour of the plaintiff. The defendants admit that the property was owned by Abdul Karim Sab. He died subsequent to the Gift in the year 1981. Therefore, the alleged partition claimed by the defendants in the year 1968 and their claim on the title of the property has no basis. The Trial Court as well as the First Appellate Court after assessing the oral evidence available on record and the documents have come to the conclusion that the property was owned by the plaintiff. At any stretch of imagination, the claim of the defendants is not probable. Consequently, the suit deserves to be decreed. 29. In view of the aforesaid discussion and the finding on the substantial question of law, the suit deserves to be decreed and the appeal deserves to be allowed. Hence, the following: ORDER (i) The appeal is allowed. (ii) The judgment of the Trial Court in OS No. 89/2008 dtd. 7/4/2010 as well as the judgment of the First Appellate Court in RA No.5/2010 dtd. 30/6/2011 are set aside. (iii) The suit of the plaintiff (now represented by his legal representatives) is decreed directing the defendants to vacate and handover the possession of the suit schedule property to the plaintiff within a period of four months. (iv) Having regard to the relationship between the parties, the costs made easy