Mir Liyaqat Ali vs Mohd. Yousuf

Immaneni Panduranga Rao, J.—These two appeals arise out of a common judgment disposing of two connected appeals A.S. No. 98/90 and A.S. No. 58/90 by the learned Additional Chief Judge, City Civil Court, Hyderabad.

Original Suit No. 1834/87 on the file of the Court of the Vth Assistant Judge City Civil Court, Hyderabad was filed for recovery of possession of the suit mulgi after terminating the tenancy of the defendant for arrears of rent at the rate of Rs. 350/- per month from 1-4-86 till the end of November 1986 and for recovery of mesne profits at the rate of Rs. 600/- per month. The trial Court decreed the suit with respect to the relief of recovery of possession and also decreed the arrears of rent for the period from 1-8-86 till the end of November 1986.

Challenging the dismissal of the suit with regard to disallowing of arrears of rent from 1-4-86 till the end of July 1986 and refusing to award mesne profits at the rate of Rs. 600/- per month as claimed in the plaint the plaintiff has preferred A.S. No. 98/90. The defendant filed A.S. No. 58/90 challenging the decree for recovery of possession. The learned appellate Judge on a consideration of the contentions put forth by both sides, has dismissed both the appeals.

The plaintiff preferred Second Appeal No. 748/91 challenging the dismissal of A.S. No. 98/90 whereas the defendant has filed Second Appeal No. 530/91 challenging the dismissal of A.S. No. 58/90.

The substantial questions of law on which Second Appeal No. 748/91 is admitted pertain to the arrears of rent from 1-4-86 to 31-7-86 and the mesne profits.

The only Substantial question of law on which the Second Appeal No. 530 / 91 is admitted is that the conversion of the old room into a shop without demolition and construction of fresh basement does not amount to a new construction, thereby attracting the exemption under G.O.Ms. No. 636 dated 29-12-83.

Both the courts below have arrived at a concurrent finding of fact that the rent stipulated for the suit premises is Rs. 350/- (Rupees three hundred and fifty only) per month and as such the plaintiff is entitled only for damages for use and occupation at Rs. 350/- per month. The courts did not accept the plaintiff''s contention that he is entitled for damages at Rs. 20 / - per day and held that the said claim is without any basis.

As regards Second Appeal No. 530 of 1991 it is contended that the civil court has no jurisdiction to entertain the suit because the demised premises is a part of old construction existing since 40 years prior to this suit. But the lower appellate court relying upon the recitals in Exs. A-5 to A-9 which are marked by way of additional evidence during the appeal held that the suit shop is a subsequent construction. Ex. A-5 shows that permission was sought for removal of roof covered by portions marked as ''A'' in that plan. Ex.A-8 sale deed of the year 1969 shows that the subject matter of that sale consisted of one verandah of 10 x 6 feet, one room measuring 12 x 8 feet, one store room measuring 8x6 feet and kitchen of 9 x 6 feet. But Ex.A-9 gift deed shows that four rooms and two shop rooms towards the road were gifted to the plaintiff and admittedly one of two shop premises is the subject matter of dispute. The above documentary evidence clearly supports the view taken by both the courts below that the shop premises which is the subject matter of suit was constructed subsequent to the demolition of the existing building. Whether that construction was made legally or illegally is not a relevant question here. Inasmuch as the construction of the demised premises is subsequent to the date of Ex.A-5, I hold that it is exempt under G.O.Ms. No. 636 dt. 29-12-83 and as such the civil suit is maintainable.

The learned counsel for the appellants in Second Appeal No. 530 of 1991 tried to argue that Ex. A-2 quit notice issued by the plaintiff is invalid and illegal and on that ground also the decree for possession granted by the courts below is not sustainable. At the very outset I must observe that this is not the substantial question of law on which the Second Appeal has been admitted. The learned Judge while admitting the Second Appeal on 25-10-91 has specified that the Second Appeal is admitted in view of the substantial question of law raised in paragraphs 2,3 and 4 of the memorandum of appeal which only pertain to the jurisdiction of the civil court to entertain the suit. Even otherwise the submission made by the learned counsel for the appellant in Second Appeal No. 530 of 1991 (the defendant) cannot be accepted because in Ex.A-2 the plaintiff has given option to the defendant either to treat the tenancy month as commencing from 2nd day of the month or to choose his own date for the commencement of tenancy and to vacate the premises. When such an option is given by the landlord suggesting alternative dates for termination of tenancy and giving option to the tenant to choose any one of those dates, it cannot be said that the notice is bad for uncertainty. The tenant might have occupied the premises on 20-8-82 but he has executed a fresh lease in favour of the plaintiff on 2-5-84. Therefore it is not open to the defendant to contend that the tenancy month commenced from 20-8-82 and as such Ex.A-2 notice issued treating the period of commencement of tenancy as 2nd of the month is improper and illegal.

Even otherwise since the landlord in the quit notice has suggested alternative dates and given option to the lessee to choose any one of those dates for termination of tenancy and to vacate the premises, I hold that it is sufficient compliance with Section 106 of Transfer of Property Act and the notice to quit issued by the plaintiff is perfectly correct.

From the above discussion, I dismiss both the Second Appeals confirming the decision of the learned Additional Chief Judge, City Civil Court, Hyderabad in A.S. Nos. 98 of 1990 and 58 of 1990. I direct each party to bear its own costs. The defendant is granted two months time for vacating the suit premises.