Jeevan Singh Rajpurohit vs Tatti Sridhar and Others

B.V. Nagarathna, J.—1. Defendant in O.S. No. 264/2014 (old No. 54/2010) has preferred this second appeal, assailing judgment and decree passed in R.A. No. 1535/2014 dated 13.01.2016 by the III Additional District & Sessions Judge, Ballari (sitting at Hosapete) by which, judgment and decree passed in O.S. No. 264/2014 dated 27.08.2014 by the Principal Civil Judge (Sr. Dn.) and J.M.F.C, Hosapete, has been confirmed.

For the sake of convenience, the parties shall be referred to, in terms of their status before the trial Court.

The respondent-plaintiffs filed a suit for eviction. In other words, they were seeking possession of the suit schedule property, they are door numbers 387 and 386, which are shops. Door No. 387 was let out to the defendant in the year 1992 on monthly rent of Rs. 800/- while door number 386 was let out in the year 1998 on a monthly rent of Rs. 2,500/-. It was agreed that there would have been 5% escalation after the period of 11 months. Plaintiffs intended to demolish the suit schedule property and put up a new commercial complex thereon. Therefore, a letter was issued to the defendants on 21.08.2009 informing the defendant that he should seek accommodation in the new building after vacating the existing building. The defendant postponed handing over of possession for one reason or the other which compelled the plaintiffs to issue a legal notice terminating the tenancy on 31.12.2009. They demanded vacant possession of the suit shops but the defendant did not comply with the terms of the notice. Hence, they filed the suit seeking eviction of the defendant from the suit shops.

On receipt of suit summons and Court notices from the trial Court, defendant appeared and filed his written statement admitting the jural relationship between the parties. But, he contended that termination of tenancy by a single notice was not in accordance with law. Two separate premises were let out at different points of time. The lease agreement never provided for termination of tenancy. It was a perpetual lease, that the schedule mentioned in the plaint was incorrect. The Court had no jurisdiction to try and decide the dispute as one of the premises was less than 14 sq.mts. Accordingly, Karnataka Rent Act, 1999 was applicable as he was a protected tenant. Therefore, the defendants sought for dismissal of the suit.

On the basis of the above pleadings the trial Court framed the following issues and additional issues for its consideration.

"ISSUES

1) Whether the plaintiffs prove that, they had issued a quit notice dated 08.12.2009 in accordance with law and had validity terminated the tenancy of the defendants in respect of schedule property?

2) Whether the plaintiffs are entitled for the relief of possession of the suit schedule property?

3) Whether the plaintiffs are entitled for the relief of mesne profits for use and occupation of the schedule premises from the date of termination of tenancy till the date of handing over the schedule premises?

4) What order or decree?

Additional issue No. 1:

Whether the suit of plaintiff is not maintainable as the suit is hit by the provisions of Karnataka Rent Act, as contended by the defendant in para-8(k) of the written statement?"

In support of their case the plaintiffs examined themselves as P.W.1 and 2. They produced 10 documents, which were marked as Exs. P.1 to 10. The defendant let in his evidence as D.W.1. He produced 84 documents, which were marked as Ex. D.1 to 84. The Court Commissioner''s report was marked through Court Commissioner who was examined as C.W.1. He produced six documents, which were marked as Exs. C.1 to 6. The Commission report was marked as Ex. C.5. On the basis of the said evidence the trial Court answered issue Nos. 1 and 2 in the affirmative, and issue No. 3 and additional issue No. 1 in the negative and decreed the suit of the plaintiffs directing the defendant to quit and deliver vacant physical possession of the suit property to the plaintiff within two months from the date of order. The suit was decreed with costs by judgment and decree dated 27.08.2014. Being aggrieved by the judgment and decree of the trial Court the defendant preferred R.A. No. 5035/2014 before the first appellate Court, which, on hearing the respective parties framed the following point for its consideration.

POINT

Whether the impugned Judgment and Decree of trial Court suffers from legality and that the appeal is fit to be allowed?

It answered the above point in the negative and dismissed the appeal by confirming judgment and decree of the trial Court.

Being aggrieved by the judgment and decree of the first appellate Court dated 13.01.2016, the defendant has preferred this second appeal.

I have heard learned counsel for the appellant. He submitted that there were two independent leases in respect of door Nos. 387 and 386, which were made in favour of the defendant. In respect of door No. 387 the lease deed was executed in the year 1992 on a monthly rent of Rs. 800/- while in respect of door No. 386 lease commenced in the year 1998 on a monthly rent of Rs. 2,500/-. In so far as door No. 387 is concerned, the extent of tenancy measured less than 14 sq.mt. Therefore, the plaintiffs could not have filed a suit seeking possession of that area. The Karnataka Rent Act, 1999 applied. But both the Courts erred in considering two suit premises as one unit and have reckoned them to be over and above 14 sq.mt. and have granted a decree to the plaintiff, that the said decree is passed without the trial court having jurisdiction. On that short ground alone the suit of the plaintiffs had to be dismissed. The first appellate Court has also not appreciated this aspect of the matter and it has simply confirmed judgment and decree of the trial Court. He contended that the trial Court was not right in holding two extents of tenancy had merged and it was being used as one unit and therefore the suit was maintainable. He further contended that this appeal gives rise to substantial questions of law and therefore the appeal may be admitted for a detailed hearing.

Having heard learned counsel for the appellant and on perusal of the material on record it is noted that the defendant was the tenant of the plaintiffs in respect of door No. 387 and 386. No doubt, the said premises were taken on lease at different points of time. The monthly rent fixed was also different but what had happened subsequently was that, two extents of tenancy were merged and they were being used as a single unit. The defendant is running a stationery shop in the said premises. The defendant though contended that in respect of door No. 387 extent of premises is less than 14 sq.mt. and therefore the Karnataka Rent Act, 1999 applied and the suit was not maintainable and therefore raise a jurisdictional issue, he could not make good that contention by producing any rent agreement or lease deed. In the absence of there being any documentary evidence to the effect that what was let out to defendant was less than 14 sq.mt. in respect of door No. 387. The trial Court as well as the first appellate Court did not give credence to the contentions regarding jurisdiction raised by the defendant.

That apart, the Courts below have considered the substance of the matter and although there were two separate tenancies, which may have been created at one point of time, in the absence of there being any documents to that effect produced by the defendant and keeping in mind the fact that defendant has used two separate tenancies as a single unit by having a stationery business in the name and style "Padmavathi Stationery Mart", the Courts below concluded that there was merger of the tenancies and hence question of jurisdiction that the trial Court did not arise.

The defendant though raised the question of jurisdiction but failed to make good that contention, by not producing any deed of agreement or lease deed or any rent agreement in respect of two separate units. That apart, in the written statement the defendant had categorically stated that he was ready and willing to vacate the premises if three years'' time was given. That was when the suit was filed in the year 2010. But, even after lapse of six years the defendant is pursuing this second appeal which is filed against concurrent findings of the Courts below. Therefore, the appellant has not been fair by not complying with what he had stated in the written statement. The Courts below have taken note that aspect of the matter also and have concurrently held that the plaintiffs were entitled to possession of the suit schedule shops.

Having regard to the concurrent findings arrived at by the Courts below, I do not find any substantial question of law which would arise in the appeal. The appeal being devoid of merit is dismissed.

In view of the dismissal of the appeal, I.A. No. 1/2016 is also dismissed.