Naveen Kumar vs Ashok Vaidhya

Dr. Vineet Kothari, J.—Plaintiff-appellant Naveen Kumar is aggrieved by the reversal of the eviction decree by the first appellate court of ADJ, Phalodi in appeal no. 5/2009 filed by the defendant Ashok son Askaran on 9/2/2010 reversing the decree dated 17/4/2009 passed by the learned trial court in civil suit no. 10/2006-Naveen Kumar vs. Ashok.

The eviction suit was filed in respect of suit shop situated at Phalodi, Jodhpur by terminating the lease by registered notice of the plaintiff dated 15/2/2006 and for handing over the possession of the suit shop in question to the plaintiff and for payment of arrears of rent from 1.9.2005 to March, 2006. The suit was contested by the defendant but the same was decreed by the learned trial court on 17/4/2009 in favour of the plaintiff.

The first appellate court, however, allowed the appeal of the defendant on 9/2/2010 mainly on the ground that the plaintiff-Naveen Kumar failed to establish the relationship of landlord and tenant on the basis of rent receipts and the notice terminating the lease under Section 106 of the Transfer of Property Act, since the Rent Control law did not apply to Phalodi, the place where the suit shop is situated, and since the rent note was executed by his father Jai Prakash, who in his statement said that the tenancy was created by his other son Lal Chand, therefore, in the absence of the factum of relationship of landlord and tenant having been established by the plaintiff Naveen Kumar, he was not entitled to the eviction decree.

In the present appeal, the coordinate bench of this Court framed the following substantial questions of law while admitting the appeal on 5/4/2010:-

"(1) That whether the learned lower Appellate Court was right in reversing the findings of the learned Trial Court on issue Nos. 1 and 5 and in holding that no relationship of landlord and tenant existed between the parties despite the fact that the appellant is the owner of the premises?

(2) That whether the findings arrived at by the learned lower Appellate Court on various issues are vitiated on account of mis-reading, non-reading and reading the material and evidence available on record in between the lines?

(3) That whether the findings of the learned lower Appellate Court on issue nos. 2 and 7 are liable to be quashed and set aside being based on misconception of facts & law?

(4) That whether the first Appellate Court was right in discarding the rent receipts by which the respondent-defendant has paid the rent to the appellant-plaintiff?"

Learned counsel for the appellant-plaintiff, Mr. R.K. Thanvi, Sr. Advocate submitted that the notice Ex. 1 dated 15/2/2006 terminating the lease was duly served by the plaintiff-Naveen Kumar at the address of the defendant-tenant and Ex. 2-postal receipts and Ex. 3-A.D. receipts were also placed on record of the learned trial court but since the receipt of said notice was denied by the defendant, the learned appellate court has unnecessarily gone into the question of title of the suit shop in question on the basis of rent receipts, which were always in the name of plaintiff-Naveen Kumar, who was the owner of the shop in question and even if sometime rent receipts were signed by his father Jai Prakash and other brother-Lal Chand that did not mean that right of lessor Naveen Kumar to terminate the tenancy was denied by them in any manner. Both the plaintiff Naveen Kumar and his father Jai Prakash were examined as P.W. 1 and P.W. 2 by the learned trial court and there is no contradiction in their statements, still the learned appellate court drawing the adverse inference against the plaintiff held that the relationship of landlord and tenant is not established between the parties. He, therefore, submitted that the decree of eviction was rightly granted by the learned trial court and the same has been reversed by the learned appellate court without any valid rhyme & reason and, therefore, the present second appeal deserves to be allowed, answering the questions framed above by this Court in favour of the plaintiff-appellant.

On the other hand, Mr. H.R. Soni, learned counsel appearing for the respondent-defendant-tenant relying upon the following judgments in support of his contentions urged that the finding of the appellate court that the relationship of the landlord and tenant was not established is a finding of fact based on relevant material and since on the basis of rent receipts alone the lease could not be established, the defendant-tenant was under no obligation to handover the possession of the suit shop in question to the person, who was not the lessor in the eye of law and since the lease was given by the father Jai Prakash and the notice terminating the lease was given by Naveen Kumar, which notice was not even received by the defendant and father Jai Prakash stated before the trial court that the tenancy was created by his other son Lal Chand, therefore, in the absence of any valid notice terminating the lease, the learned appellate court was justified in allowing the appeal of the defendant-tenant.

The judgments relied upon by the learned counsel for the defendant-tenant, Mr. H.R. Soni, are as under:-

Banwarilal Sharma Vs. Ram Swaroop,

Vashu Deo Vs. Bal Kishan,

Smt. Jawari vs. Rama Kishan-S.B. Civil Revision Petition No. 148/94 decided on 22/8/1994.

Learned counsel for the defendant-tenant, Mr. H.R. Soni further submitted that since the notice served by Mr. Naveen Kumar was never received by the defendant, therefore, there was no valid termination of the lease and the eviction suit could not be decreed against the defendant. He also submitted that the suit shop in question was given by oral lease created by Jai Prakash, father of the plaintiff-Naveen Kumar, in favour of the defendant-tenant.

I have heard the learned counsels and perused the record and the judgments cited at the bar. This Court is of the clear opinion that the first appellate court has erred in reversing the eviction decree, which was rightly granted by the learned trial court. The question of title is not even relevant in the eviction matters and the first appellate court has unnecessarily tried to confuse the issue of ownership or lessor being the father Jai Prakash or his son Naveen Kumar, the present plaintiff or the other son Lal Chand. The defendant had set up a defense that oral lease created by the father Jai Prakash-P.W. 2, in his favour, who never affirmed this fact in his statement recorded by the learned trial court. All the rent receipts were either issued by the plaintiff Naveen Kumar himself on his letterhead sometimes by his father Jai Prakash and sometimes by his other brother Lal Chand. The issue of title being not relevant, the only issue was about the service of proper notice terminating the lease of the tenant. In his statement, the defendant has admitted that the address on which the said notice was sent was his own address but still he denied the receipt of such notice. The learned trial court rightly held on the basis of notice Ex. 1, which was sent by registered AD post & was duly received by the defendant, that the lease stood terminated on 31/3/2006, since the notice was sent by registered AD Post on 15/2/2006 giving him a month''s time. Once a proper notice is served upon the defendant-tenant terminating the lease under Section 106 of the Transfer of Property Act, he is bound to handover the possession of the suit shop in question to the lessor, who had served such notice. The defense set up by the defendant about oral lease granted by the father Jai Prakash was not at all tenable as the said fact has not been affirmed by P.W. 2, Jai Prakash himself. The issue of rent receipts by father and the other brother on certain occasions, besides most of the rent receipts issued by the lessor himself, is of little consequence and same cannot be said to be a fact established for denying the relationship of landlord and tenant in a case covered by the provisions of Transfer of Property Act.

The judgments relied upon by the learned counsel for the defendant-tenant are not applicable to the facts of the present case and do not advance the cause of the defendant-tenant in any manner. This Court is, therefore, of the considered opinion that reversal of the eviction decree by the first appellate court is not sustainable and the present second appeal of the plaintiff deserves to be allowed and the substantial questions of law framed above, deserve to be answered in favour of the plaintiff appellant and they are accordingly answered in favour of the plaintiff-appellant-landlord.

The present second appeal is accordingly allowed with no costs. The respondent-defendant tenant shall hand over the peaceful & vacant possession of the suit shop in question to the appellant-plaintiff-landlord within a period of six months from today i.e. on or before 15th June, 2015 and shall pay mesne profit @ Rs. 2,000/- per month from January, 2015 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the appellant-plaintiff and in case there is any default in payment of mesne profit, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The respondent-defendant-tenant shall also clear all the arrears of rent and mesne profit and pay the same to the plaintiff within two months from today, otherwise the same will bear interest @ 9% per annum. The respondent-tenant or person in possession shall also further not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same would be treated as void. The respondent-defendant-tenant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over to the appellant-landlord within a period of six months from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the appellant-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. A copy of this judgment be sent to both the learned courts below and both the parties