Nagendra Gopal Bachulkar vs Dastagir and Others

B. Veerappa, J.—The above regular second appeal is filed by the tenant/defendant against the judgment and decree dated 17.12.2011 made in RA No. 75/2011 on the file of the Additional Senior Civil Judge, Belagavi, confirming the judgment and decree dated 06.04.2011 made in OS No. 906/2008 on the file of the II Additional Civil Judge (Jr.Dn.), decreeing the suit filed by the plaintiff/landlord and directed the defendants to deliver the actual vacant possession of the suit schedule property to the plaintiff within three months from the date of the judgment and decree.

The brief facts of the case are:

"The plaintiff filed the suit for possession/ejectment contending that he is the owner in respect of the suit schedule property, purchased under registered transfer of Cantonment Code Lease Deed dated 29.06.2007 for valuable consideration of Rs. 12,00,000/- and the defendants are in possession of the part of the property as tenants and after the purchase, the plaintiff issued a notice on 30.06.2008 to the defendants requesting them to attorn their tenancy and vacate the premises. The said notice was served on the defendants, and inspite of which, they have not vacated the suit premises. The defendants are carrying on their business of furniture sale in the suit property for the last more than 45 years. The suit schedule property is required for the plaintiff for their bona fide use and occupation."

The defendants 1 and 3 remained absent and hence, they are placed exparte. Defendant No. 2 filed written statement and denied the relationship of landlord and tenants, and contended that the plaintiff has no right to file the present suit, since the land belongs to Ministry of Defence, Central Government, who is the owner of the suit property, etc.

Based on the pleadings, the trial court framed the following issues and additional issues:

"(i) Whether the plaintiff proves that he is the owner of the suit schedule property?

(ii) Whether the plaintiff proves that tenancy of the defendant has been legally terminated?

(iii) Whether the plaintiff is entitled to the possession of the suit schedule property?

(iv) Whether the plaintiff is entitled to mesne profits? If so, at what rate?"

In order to establish plaintiff''s case, plaintiff examined himself as PW-1 and got marked 12 documents at Exs. P-1 to 12. On the other hand, the defendants did not choose to lead any evidence nor produced any documents.

After considering the entire material on record, the trial court recorded a finding that the plaintiff has proved that he is the owner of the suit schedule property and plaintiff also proved that tenancy of the defendants has been legally terminated and held that the plaintiff is entitled to the possession of the suit schedule property. Accordingly, the suit came to be decreed granting three months'' time to the defendants/tenants to vacate and deliver the vacant possession of the suit schedule property to the plaintiff.

Aggrieved by the said judgment and decree of the trial court, the defendant No. 2 filed an appeal in RA No. 75/2011 before the II Addl. Senior Civil Judge, Belagavi, who after hearing both the parties, by the impugned judgment and decree, dated 17.12.2011, dismissed the appeal and confirmed the judgment and decree of the trial court. Against the said judgment and decree of the courts below, the present appeal is filed by the defendant No. 2.

I have heard the learned counsel for the parties to the lis.

Sri. Basavarj M. Mekki, learned counsel for the appellant, has contended that both the courts below have committed an error in decreeing the suit, even though there is no relationship of landlord and tenants between the plaintiff and defendants and in fact, the defendant No. 2 has admitted in the cross-examination that there is no lease agreement between him and the defendants. Therefore, he sought to set side the impugned judgment and decree of the courts below.

Per contra, Sri. Vivek C. Gramopadhya, learned counsel for the respondents, sought to justify the impugned judgment and decree of the trial court and also contended that both the courts below have concurrently held that there is relationship of landlord and tenants and the landlord proved that the suit schedule property is required for his bona fide use and occupation. Therefore, such a finding of fact cannot be interfered with by this Court under the provisions of Section 100 of Code of Civil Procedure. Therefore, he sought to dismiss the second appeal.

I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record.

The plaintiff filed the suit for ejection/recovery of possession based on the registered transfer of Cantonment Code Lease Deed dated 29.06.2007 for valuable consideration of Rs. 12,00,000/- and, the plaintiff issued notice to the defendants on 30.06.2008 requesting them to attorn their tenancy and to vacate the premises. The defendants denied the very relationship and contended that the land belongs to the Ministry of Defence, Central Government and not the plaintiff. In order to prove the ownership, the plaintiff/landlord has produced Ex. P-1/GAL Register, Ex. P-2/Lease deed, Ex. P-3/Office copy of the notice, Exs. P-4 to 6/Postal receipt, Ex. P-7/Acknowledgment, Ex. P-8/copy of notice, Exs. P-9 to 11/Acknowledgment, Ex. P-12/application. The said documents clearly depicts that the plaintiff''s name is shown in column No. 9 as the holder of occupancy and the suit property was transferred to the plaintiff through transfer of Cantonment Code Lease Deed registered before the Sub-Registrar, Belagavi, as per Ex. P-2. The said document clearly indicates that the plaintiff has purchased the suit schedule property from one Abdul Kahlique Bapusaheb Bepari and others, under registered transfer of Cantonment Code Lease Deed for valuable consideration of Rs. 12,00,000/- and the recitals of the said document discloses that the transferors conveyed the transferee by way of sale of suit property for valuable consideration amount and transferee was put in actual physical possession of the suit property. In support of his claim, the plaintiff/PW-1 has stated on oath that he is the owner and purchased the suit property under the registered document. The defendant has not adduced any evidence to disprove the sale deed nor produced any contra document.

Ex. P-2/a letter written by the 2nd defendant to the plaintiff requesting him to accept the rent of the suit property from 2007 to September 2008 and contended that the said letter discloses that the defendants are in possession of the suit schedule property as tenants and the 2nd defendant had sent rent of the suit property to the plaintiff by way of demand draft dated 08.09.2010 as per Ex. P-13, which itself clearly establishes that the 2nd defendant has accepted the ownership of the plaintiff in respect of the suit property. Therefore, the contention of the learned counsel for the appellant that there is no relationship of landlord and tenant and PW-1 has admitted in his evidence to that effect, cannot be accepted. In the presence of the documents, a stray admission made by PW-1 cannot be accepted. In view of the admission made by 2nd defendant vide Exs. P-12 and 13 acknowledging the ownership of the plaintiff, the defendants are estopped from denying the title of his landlord in view of the provisions of Section 116 of the Indian Evidence Act and in view of the law declared by the Hon''ble Supreme Court in the case of Vashu Deo Vs. Bal Kishan, , which reads as under:--

"The rule of estoppel between landlord and tenant enacted in Section 116 of the Evidence Act has three main features: (I) the tenant is stopped from disputing the title of his landlord over the tenancy premises at the beginning of the tenancy; (ii) such estoppel continues to operate so long as the tenancy continues and unless the tenant has surrendered possession to the landlord; and (Hi) Section 116 of the Evidence Act is not the whole law of estoppel between the landlord and tenant. The principles emerging from Section 116 can be extended in their application and also suitably adapted to suit the requirement of an individual case. Rule of estoppel which governs an owner of an immovable property and his tenant would also mutatis mutandis govern a tenant and his subtenant in their relationship inter se. The estoppel continues to operate so long as the tenant has not openly restored possession by surrender to his landlord. "

The fact that the defendants are tenants in the property in question for more than 45 years is not in dispute. The way in which the 2nd defendant has filed written statement denying the very relationship of the landlord is against his own admission made under Exs. P-12 and 13. The defendants did not step into the witness box to rebut the contention of the plaintiff, nor adduced any contra evidence. In the absence of any material produced and non adducing of any oral evidence to defend himself, an adverse inference has to be drawn against the defendants, under the provision of Section 114 of the Indian Evidence Act, 1872, in view of the dictum of the Hon''ble Supreme Court in the case of Vidhyadhar Vs. Manikrao and Another, , wherein the apex court has held that non-entering into witness box and abstaining of a party from presenting himself for cross-examination entitles the Court to draw adverse presumption against such party on the basis of principles contained in illustration (g) to Section 114 of the Indian Evidence Act.

It is the specific case of the plaintiff that the tenancy of the defendants being legally terminated by issuing notices on 18.02.2008 and 29.08.2008, as per Exs. P-7 and 8, the said notices were duly served and they clearly depict that the plaintiff has called upon the defendants to vacate and hand-over the vacant possession of the suit schedule property, within six months from the date of receipt of the notice dated 18.02.2008. Hence, the plaintiff has complied with the provisions of Section 106 of the Transfer of Property Act, by giving 15 days notice. Therefore, the plaintiff has proved that he is the owner of the suit schedule property and termination of lease was made in accordance with law. Accordingly, the trial court decreed the suit granting three months time to the defendants to deliver the actual vacant possession of the suit schedule property to the plaintiff.

On re-appreciation of the entire material on record, the lower appellate court dismissed the appeal, concurring with the finding recorded by the trial court.

During the course of arguments, it is also brought to the notice of this Court that in pursuance of the decree passed by the trial court, the defendants have already delivered the vacant possession of the building in favour of the plaintiff in the year 2012 itself and after taking the possession, the landlord has demolished the entire structure and reconstructed the building and now, he is in possession as on today in the suit schedule property. The said fact has not been disputed by the learned counsel for the appellant.

Even otherwise, both the courts have concurrently held that the landlord has proved that he is the owner of the suit schedule property and terminated the tenancy of the defendants legally and he is entitled for possession of the suit schedule property. The said finding of fact is based on the oral and documentary evidence on record. The impugned judgment and decree of the courts below are based on the cogent and legal evidence on record and the appellant has not made out any ground to interfere with the same in the present second appeal under Section 100 of the Code of Civil Procedure. No substantial question of law is involved in the present appeal. Accordingly, the regular second appeal is dismissed.