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Judgment
B. Veerappa, J.—The unsuccessful defendants/appellants has filed this regular second appeal against the judgment and decree dated 12.09.2013 made in R.A. No. 76/2013 on the file of the III Addl. Senior Civil Judge and Addl. MACT, Belgaum, confirming the judgment and decree dated 11.03.2013 made in O.S. No. 407/2010 on the file of the Principal Civil Judge and JMFC, Belgaum, decreeing the suit of the landlord and directing the defendants/appellants to vacate and hand-over actual vacant possession of the suit schedule property in favour of plaintiffs within three months from the date of the judgment and further directed the defendants to pay arrears of Rs. 3,30,000/- to the plaintiffs and also directed to file separate proceedings under Order 20 Rule 12 of Code of Civil Procedure for mesne profits.
It is the case of respondents/plaintiffs that the suit schedule property is a part and parcel of non-residential premises measuring 3000 square feet consisting of hall, store room, kitchen, lavatory along with all required furniture situated in the ground floor portion of the building located towards South-West corner of property out of CTS. No. 10699 situated at Nehru Nagar, Old P.B. Road, Belgaum, and the said property is shown by letters ''ABCD'' in the sketch annexed to the plaint and the said property owned and possessed by the partnership Firm by name ''Hotel Nataraj''. The plaintiff purchased all the rights of partnership firm under registered sale deed dated 12.10.1998 for valuable consideration and acquired right, title and interest over the property and the name of plaintiff alone is appearing in the revenue records as owner and plaintiff has constructed commercial building and making use of the same for the purpose of carrying on business of lodging and boarding under the name and style of ''Hotel Hanuman''. and on the hind side portion of main building the plaintiff has got constructed one storied RCC type of building and now the plaintiff is paying tax regularly. It is further contended that in the year 2003, the defendants approached the plaintiff and requested to let out the suit property to them and after mutual negotiations, the plaintiff accepted the offer of defendants and agreed to let out the suit property to them on rental of Rs. 10,000/- per month and interest free deposit of Rs. 2 lakhs and defendants also agreed to pay separate electricity bill and water consumption charges etc., and as per agreed terms of the lease, the plaintiff delivered actual possession of the suit schedule property to the defendants along with required furniture and defendants are making use of the suit property for the purpose of carrying on their business of Bar and Restaurant in the name and style "Raghav Palace" and the lease period commence from 1st day of month and expires on the last day of same month as per British calendar. After the lease plaintiff noticed that the defendants are not paying rents regularly and they are due in arrears of rent from 1.12.2006 at the rate of Rs. 10,000/- per month. Therefore, they requested defendants to pay arrears of rent and in response to the said request defendants handed over the cheques dated 4.8.2009, 1.09.2009, 5.10.2009 and 7.11.2009 each amounting to Rs. 10,000/- drawn on Syndicate Bank towards part payment of loan and requested the plaintiff to adjust the said amount in the arrears of rent of Rs. 40,000/- and even after adjustment also defendants fell due in arrears from 1.4.2007 to 31.12.2009 amounting to Rs. 3,30,000/- and defendants for all these days prevented the plaintiff to enjoy the said amount and hence, defendants are liable to pay interest at 12% p.a. It is also the case of the plaintiff that during subsistence of lease period, defendants have acquired alternative premises bearing CTS No. 10620 and got constructed a multistoried RCC type of building and carrying on business of Bar and Restaurant in the said building under the name and style of "Rakshit International Hotel". Thus, the defendants having acquired new premises and carrying on similar business in newly acquired premises but they are avoiding to clear off entire arrears of rent and plaintiff is also required the said suit property for establishment of restaurant and hence, he has requested the defendants to vacate and pay arrears of rent. The defendants assured to pay arrears of rent and handover the possession by the end of November, 2009, but thereafter, started giving evasive reply and hence, plaintiff terminated the tenancy of defendants by issuing notice dated 13.12.2009 and the same was duly served upon the defendants and defendants have issued false reply on 24.12.2009 claiming that one Sanjay Laxmanrao Jugnikar is carrying on the business and once again the plaintiff issued another notice by terminating the lease on 16.2.2010 to the defendants and the same was served upon the defendants and again the defendants issued a false reply on 26.02.2010, but did not vacate the suit property. Therefore, the plaintiff was constrained to file the suit.
The defendants filed written statement denying the plaint averments and also denied the relationship of landlord and tenant and also payment of arrears of rent and further contended that they have constructed a multistoried RCC type building and carrying on business of Bar and Restaurant in the suit property under the name & style of "Rakshit International Hotel". Therefore, question of his occupying the suit property for carrying their business and payment of any rent to the plaintiff does not arise, and they are not liable to pay any arrears of rent as well as mesne profit as claimed by the plaintiff, etc. Therefore, they sought for dismissal of the suit.
Based on the pleadings, the trial court framed the following issues and additional issues:
Whether the plaintiffs prove that, the defendants are tenants under them on the monthly rental of Rs. 10,000/- in respect of suit schedule property?
Whether the plaintiffs prove that, the defendants are in arrears of rental from 01.04.2007 to 31.12.2009 amounting to Rs. 3,30,000/-?
Whether the plaintiffs prove that, by issuing a legal notice dated 13.12.2009 terminated the tenancy of the defendants in respect of suit schedule property?
Whether the plaintiffs are entitled for a relief of possession as prayed for?
Whether the plaintiffs are entitled for arrears of rentals of Rs. 3,30,000/- with interest at the rate of 1% p.a. from the date of arrears to till payment of entire amount?
Whether the plaintiffs are entitled for mesne profit as prayed for?
What order?
Additional Issues:
Whether defendants prove that suit is not maintainable?
Whether defendants prove that suit is bad for non-joinder of necessary party?
The plaintiffs in order to establish their case examined plaintiff 1(b) as PW.1 and marked documents as Ex.P.1 to P.22. The 1st defendant was examined as DW.1 and examined witnesses as DWs.2 to 4 and produced documents as Ex.D.1 to D.5.
After considering both oral and documentary on record, the trial court recorded a finding that the plaintiffs have proved that the defendants are tenants under them on a monthly rent of Rs. 10,000/- in respect of the suit schedule property and the defendants are in arrears of rent from 1.4.2007 to 31.12.2009 amounting to Rs. 3,30,000/- and also proved that by issuing legal notice dated 13.12.2009 plaintiffs terminated the tenancy of defendants in respect of the suit schedule property and also held that plaintiffs are entitled for arrears of rentals of Rs. 3,30,000/- with interest at the rate of 1% p.a. from the date of arrears till the payment of entire arrears and accordingly, the suit came to be decreed granting three months time to the defendants to vacate and hand over actual vacant possession of the suit schedule property to the plaintiffs. Against the said judgment and decree, the defendants/appellants filed R.A. No. 76/2013 on the file of the III Addl. Senior Civil Judge and Addl. MACT, Belgaum, who after hearing both the parties by his impugned judgment and decree dated 12.09.2013 dismissed the appeal and affirmed the judgment and decree of the trial court.
Against the said concurrent finding of fact by both the courts below, the present appeal is filed.
I have heard the learned Counsel for the parties to the lis.
Sri. A.P. Murari, learned Counsel for appellants has contended that the appellants are not the tenants under the respondents and there is no relationship of landlord and tenant and therefore, the question of eviction does not arise. He also contended that one Sanjay Laxman Jugnikar is running the hotel in the suit property and not the defendant. Therefore, he sought to set aside the judgment and decree of the courts below.
Per contra, Smt. Hemalekha K.S., learned Counsel for respondents contended that in view of the categorical admission made by the defendants and in view of the oral agreements that the defendants are the tenants and inspite of their own building in CTS No. 10620 under the name and style as "Rakshit International Hotel", the defendants are not vacating nor paying rent to the landlord and also contended that the defendants have also inducted a third party by name Sanjay Laxman Jugnikar in the property. Therefore, she sought to sustain the impugned judgment and decree of the courts below.
I have given my thoughtful consideration to the arguments advanced by the learned Counsel parties to the lis and perused the entire material on record.
The trial court considering the entire material on record, has recorded a finding that certified copy of ration card, it shows Kamalaksha Govardhan Nayak was a owner of suit property by virtue of sale deed as per except Ex.P.1, certified copy of the sale deed executed by previous vendor of the plaintiff in favour of Kamalaksha Govardhan Nayak which is marked as Ex.P.6. The plaintiffs have produced copy of legal notice issued to the defendants on 13.12.2009 and the postal acknowledgement for receipt of legal notice and reply notice issued by the defendants on 24.12.2009. Ex.P.2 to P.15 clearly indicates that the defendants have remitted the rents towards the suit property in the account of the plaintiff through cheque. Ex.P.19 and 19(a) to 19(g) are also relating to the rent sent to the plaintiffs. The statement of bank accounts extract of M/s. Hotel Raghav Palace issued by the Syndicate Bank and copy of the Income Tax Returns relating to Raghav Palace and audit report of Raghav Palace for the year 2010-2011 and the said documents are confronted at the time of cross-examination of DW.1 which are marked as Ex.P.21 to Ex.P.22.
The defendants have produced the copy of No Objection Letter claiming that plaintiffs have given NOC to run bar and restaurant in the name of Sanjay Laxmanrao Jugnikar and license issued by the Excise Department. The trial court also recorded a finding that there is no written lease agreement between plaintiff and defendants produced by the plaintiffs, plaintiff No. 1 Kamalaksha Govardhan Nayak is the absolute owner of the suit schedule property and after the death of plaintiff No. 1 his LRs i.e. plaintiff Nos. 1(a) to 1(e) are the owners of the suit property. Ex.P.7 is the reply notice issued by defendants wherein the defendants themselves admitted that they have paid rent to the plaintiffs since the date of occupying the premises upto to December, 2009 and also admitted that they have paid rent through cheques on 4.8.2009, 1.9.2009, 5.10.2009, 7.11.2009 and 23.12.2009 each for Rs. 10,000/- and in the reply it is specifically stated by the defendants that, "prior to that, your client used to receive the amount of rent from my clients every month by hard cash. But, recently the behaviour of your client is changed and because of that, my clients started issuing the rent through cheques. If at all my clients were in default much earlier your client would have been issued notice to my clients. Hence, my clients fell in arrears of Rs. 3,30,000/- is all false and your client has issued false information to you to this effect. But, it is submitted that, the premises of your client leased in favour of Sanjay Laxmanrao Juganikar who is relative of my clients."
On careful perusal of the reply issued by the defendants they have admitted that they are tenants and they have also admitted that they have taken on lease the suit property and they have regularly paid upto December 2009. Further, they have stated that the premises has been leased in favour of Sanjay Laxmanrao Juganikar who is the relative of defendants. Ex.D.1 to D.2 which were confronted at the time of cross examination of PW.1 by the plaintiff counsel speaks that defendant-2 Smt. Anjana wife of Rajshekhar Kalal and one Sanjay Laxman Juganikar are the partners relating to hotel of "Raghav Palace". When defendant No. 2 is one of the partner as per audit report for the year 2010 to 2011 how the contention of defendants can be accepted that defendants 1 and 2 are not the tenants under the plaintiffs relating to the suit schedule property itself is not explained. When the defendants themselves have admitted in the reply that they have paid rents regularly to the plaintiffs from the date of occupation of the suit property and the same has been corroborated in the written statement of the defendants as well as statement of bank account extract and when the defendants themselves have admitted regarding payment of rent to the plaintiffs in their reply notice, which itself suffice it to say that the defendants being tenants have paid rent to the plaintiffs and plaintiffs have received rent from the defendants relating to suit schedule property.
D.W.1 in the cross examination admitted that D.W.2 is his wife and himself and Defendant-2 field written statement and they have signed vakalath and whatever stated in the written statement as true and correct. He has also admitted that the father of plaintiff is owner of suit property and their name is appearing in CTS extract. Further he has deposed that he has given Rs. 2 lakhs to his brother-in-law as hand-loan and the said amount has been given through cheque in the name of Ramanayak and it is given to his brother-in-law and he has signed the cheque relating to Syndicate Bank for the year 2003. The same was encashed by them and also came to know that the said cheque was encashed in the name of Ramanayaka. In view of the admission of DW.1 once it is clear that in the year 2003 he has issued a cheque for Rs. 2 lakhs relating to advance interest free deposit in favour of plaintiff relating to lease agreement of suit property, but he has contended that he has given hand-loan to Sanjay Laxman Juganikar. If at all the hand-loan given to his brother-in-law, where is the document to show the same. Why he has not pleaded in the written statement and not explained the reply notice. In the absence of pleadings mere DW.1 has deposed that Rs. 2,00,000/- given to Sanjay Juganikar as a hand-loan and thereafter, it was returned to him etc., cannot be accepted in the eye of law. Further, D.W.1 has deposed that he do not know whether he has issued cheque in the name of deceased Kamalaksha as loan and does not know who has given rent to Kamalaksha. But he has admitted suit property consisting of Bar and Restaurant in the name of "Raghav Palace".
DW.1 has further admitted in the cross-examination that: "it is true, plaintiff has issued legal notice on 13.12.2009. I have given reply to the said notice on 24-12-2009. It is true Ex.P.2 is legal notice issued by the plaintiff and Ex.P.5 and Ex.P.6 are postal acknowledgments, Ex.P.7 is reply addressed to the plaintiff. On my instruction only Ex.P.7 given to the plaintiff. Whatever the contents in Ex.P.7 is true and correct." When DW.1 has consistently and specifically admitted that whatever the facts narrated in the reply notice Ex.P.7 is true and correct and it is sufficient to hold that defendants are tenants under plaintiffs itself is not explained by the defendants. In addition to that defendant himself has admitted that:
The trial court also recorded a finding that the defendants have admitted the payment of rent and the said rent has been received by the landlord or accepted the rent from the tenant, itself is sufficient to hold that there is jural relationship of landlord and tenant between plaintiff and defendant. If there was no any relationship between plaintiff and defendants as landlord and tenant, what was the necessity to the defendant to pay the rent and interest free deposit of Rs. 2 lakhs to the plaintiff through cheques and why defendants themselves have admitted in the reply notice that from the date of occupation of premises they are very regular in payment of rent and they have cleared entire arrears of rent upto December 2009, and the trial court after considering the Ex.P.2, P.7, P.9, P.14 and the admission of PW.1 has come to the conclusion that the defendants are tenants and they are in arrears of rent of Rs. 3,30,000/- and the landlord has issued notice under Section 106 of the Transfer of Property Act and ultimately decreed the suit of the landlord directing the defendants to vacate the premises within three months and directed the defendants to pay arrears of rent of Rs. 3,30,000/- to the plaintiff
On re-appreciation of the entire oral and documentary evidence on record, the lower appellate Court concurring with the finding of fact recorded by the trial court has held that, the relationship of landlord and tenant has been proved and the trial court has not erred in holding their existence of relationship of landlord and tenant between the plaintiffs and defendants and the trial court has also not erred holding that there is due termination of tenancy of defendants and the defendants are in arrears of rent and also specifically held that the trial court has not erred in holding that the Sanjay Laxman Jugnikar is not a necessary party to the proceedings and the judgment and decree of the trial court does not call for any interference. Accordingly, the lower appellate court dismissed the appeal.
Both the courts below based on the evidence of PW.1 and DWs.1 to 4 and the material evidence Ex.P.1 to P.22 and Ex.D.1 to D.5 has concurrently held that, the plaintiffs have proved that the defendants are tenants on the monthly rental of Rs. 10,000/- in respect of suit schedule property and plaintiffs are in arrears of Rs. 3,30,000/- and proved that plaintiffs have issued legal notice on 13.12.2009 under Section 106 of Transfer of Property Act and terminated the tenancy of the defendants in respect of suit schedule property and the plaintiffs are entitled to recover possession as well as rent. Accordingly, decreed the suit and directed the defendants to vacate the suit schedule property within three months by paying rent of Rs. 3,30,000/- as arrears and also reserved liberty to the landlord to file a separate proceedings under Order XX rule 12 of Code of Civil Procedure, is based on the cogent legal evidence on record. The appellants have not made out any prima facie case to interfere with the findings of fact recorded by the courts below under provisions of Section 100 of Code of Civil Procedure. No substantial question of law involved in the present appeal.
Accordingly, the RSA is dismissed.