Sheela Rajashekharayya Hiremath vs Somanathsa Yallappa Katve

B. Veerappa, J.—This is an unsuccessful tenants regular second appeal against the judgment and decree dated 18th November, 2014 made in R.A. No. 25/2013 on the file of the II Additional Senior Civil Judge, Hubballi confirming the judgment and decree dated 9.1.2013 made in O.S. No. 68/2012 on the file of the I Additional Civil Judge, Hubballi decreeing the suit of the respondent/landlord by directing the defendant to vacate and hand over the vacant possession of the suit property in favour of the plaintiff.

The respondent/landlord filed a suit against the defendant/tenant for vacant possession of the suit property contending the he is the absolute owner of the residential property comprised in CTS No. 3502B measuring 40.4/9 sq. yards situated in CTS Ward No. 1, CBT Killa, Hubli and the suit property was given on rent to the defendant on 1.10.2000 for a monthly rent of Rs. 4,000/-. It was his contention that the defendant was regularly paying the rent to him till 30.12.2009 and thereafter, she started to pay the rent irregularly and also postponed the same. Hence, she became the chronic defaulter in payment of rent, since she had not paid the rent from 1.1.2010 in spite of several requests made by him. Therefore, he was constrained to issue a legal notice on 7.12.2011 with a clear 15 days termination of tenancy of the defendant calling upon her to vacate and hand over the vacant and actual possession of the suit schedule property by the end of the said month, but the defendant on 19.12.2001 had evasively replied to the said notice. Therefore, the plaintiff/respondent had filed a suit.

The defendant filed her written statement denying the relationship of landlord and tenant contending that the plaintiff had agreed to mortgage the suit property for a sum of Rs. 2,50,000/- for a period of 3 years to her and accordingly, on 11.5.2009, the plaintiff executed an agreement of mortgage in her favour. That she was always being ready and willing to abide by the terms of the agreement of mortgage. She had also paid a sum of Rs. 1,155/- towards the transfer of property in the name of the plaintiffs, property tax of the suit property for the year 2011-12 including arrears of Rs. 5,549/- and arrears of Water bill to the tune of Rs. 9,090/- and that she had also fixed a water meter to the property in question at her costs of Rs. 855/-. Thus in all she had paid a sum of Rs. 16,649/- to HDMC and that the plaintiff is bound to reimburse the same to her. She further submitted that the plaintiff approached her and threatened to vacate and hand over the peaceful possession of the suit property by the end of May, 2012 without refunding mortgage debt of Rs. 2,50,000/-. Therefore, she prayed for dismissal of the suit.

The trial Court based on the pleadings framed the following issues:

"1. Whether the plaintiff proves that defendant is monthly tenant of suit schedule property under the plaintiff on monthly rent of Rs. 4,000/-?

Whether plaintiff properly terminated the tenancy of the defendant?

Whether the plaintiff is entitled for the relief as sought?

What order or decree?"

In order to establish the case, the plaintiff examined himself as P.W. 1 and got marked the documents Exs. P. 1 to 3. On the other hand, the defendant neither examined any witness nor produced any documents.

After considering the entire material on record, the trial Court recorded a finding that the plaintiff proved that the defendant is a monthly tenant of the suit property under the plaintiff on a monthly rent of Rs. 4,000/- and that the plaintiff has properly terminated the tenancy of the defendants. Accordingly, the suit came to be decreed directing the defendant to vacate and hand over the vacant possession of the suit schedule property in favour of the plaintiff.

Aggrieved by the said judgment and decree, the tenant preferred an appeal in R.A. No. 25/2013 before the II Additional Senior Civil Judge, Hubballi, who after hearing both parties by the impugned judgment and decree dated 18th November, 2014 dismissed the appeal confirming the judgment and decree of the trial Court. Against the said concurrent finding of fact, the present regular second appeal is preferred by the tenant.

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

Sri Naveen Chatrad, learned Counsel appearing on behalf of Sri Mahesh Wodeyar for the appellant contended that the impugned judgment and decree passed by the Courts below is illegal, erroneous, perverse and is not sustainable and that they have not given an opportunity to the appellant to lead any evidence and therefore, he sought for setting aside of the impugned judgment and decree of the Courts below.

Per contra, Sri S.B. Patil, learned Counsel appearing on behalf of Sri Prakash K. Jawalkar for the caveator/respondent/landlord sought to justify the impugned judgment and decree of the trial Court by specifically contending that in view of the judgment and decree passed by the Courts below directing the tenant to vacate and hand over the vacant possession of the suit property, the appellant/tenant has already handed over the vacant possession of the suit property in favour of the plaintiff/respondent herein who is landlord and to that effect he is also filing a memo before this Court, which is placed on record. In response to the above, learned Counsel for the appellant states that he has no instructions from his client.

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

Though the substance of the case of the plaintiff is that he is the owner of the suit property and the appellant/defendant is the tenant under him on a monthly rent of Rs. 4,000/- per month with effect from 1.10.2000 and she has paid rents up to 30.12.2009 and subsequently, she did not pay the rent since 1.1.2010 and therefore, he issued a legal notice dated 7.12.2011 under Section 106 of the Transfer of Property Act with a clear 15 days time for terminating the tenancy, the defendant has denied the entire plaint averments contending that there was a mortgage deed executed by the plaintiff on 11.5.2009 by receiving a sum of Rs. 2,50,000/-. Except the averments in the written statement, the defendant has not produced any material documents, nor has adduced any evidence that there was any mortgage, but the plaintiff has adduced evidence specifically stating that the defendant is a tenant, who was paying the monthly rent and also produced the material documents - Exs. P. 1 to 3.

The trial Court considering the entire material on record, recorded a finding that plaintiff has produced the termination notice as per Ex. P. 2 and a reply notice issued - Ex. P. 3. It has held that after careful perusal of Ex. P. 3, it appears that the defendant has contended that she has been in possession of the suit property by virtue of the alleged mortgage deed dated 11.5.2009 and that too when she comes before the Court with this specific defence, the burden of proof is upon her to establish the said case by producing oral as well as documentary evidence. Further it has held that in that absence of any evidence from the defendant''s side, it can be easily accepted the unshaken testimony of P.W. 1 since his testimony is coupled with the documentary evidence. Any how, the fact that the plaintiff is the owner of the suit property is not in dispute. Further the defendant at one breath contended that she has been introduced by virtue of the mortgage deed in the suit property and at another breath, she has stated that she has been in possession of the suit property by virtue of the agreement of sale. Hence, in the light of the inconsistent defence of the defendant, she is not sure of her defence. Therefore, the trial Court was of the opinion that the plaintiff has given the suit property to the defendant on monthly rent basis and the tenancy has been terminated by issuing the legal notice Ex. P.2 under the provisions of Section 106 of the Transfer of Property Act. Accordingly, the suit came to be decreed.

On re-appreciation of the entire material on record, the lower Appellate Court concurred with the finding of fact recorded by the trial Court holding that the judgment and decree passed by the Court below is in accordance with law and that the appellant has not made out any case for interfere with the finding of fact recorded by the trial Court and also that it is significant to note that the defendant has not produced any alleged agreement of sale on which she is relying on and also not produced any agreement of mortgage deed on which she is relying. Further that though she has set up a defence that the plaintiff in O.S. No. 68/2012 has executed an agreement of sale and mortgage deed in her favour, she has not chosen to produce those documents for the reasons best known to her. When she has admitted the ownership of the plaintiff over the suit property and when she has set up a defence that she was put into possession of the suit property by virtue of the alleged agreement of sale and alleged mortgage deed, the primary burden is upon her to produce those documents and to prove the execution of those documents in accordance with law. But she has not chosen to produce those documents for the reasons best known to her. She has neither stepped into the witness box nor disputed the ownership of the plaintiff''s. When she is claiming that she has been put in possession of the suit property by virtue of the agreement of sale and by virtue of the mortgage deed, she has not discharged her primary burden and also not produced any satisfactory and convincing oral or documentary evidence. Therefore, it is too difficult for the Lower Appellate Court to believe her contention. On the other hand, the documents produced by the plaintiff - Exs. P. 1 and P. 2 strengthen the case of the plaintiff''s that she is the owner and defendant is the tenant. Nothing has been elicited from his mouth to disbelieve his contention. Therefore, the Lower Appellate Court dismissed the appeal confirming the judgment and decree of the trial Court.

The ownership of the respondent/landlord is not disputed by the defendant. Though an attempt was made in the written statement denying her ownership, ultimately contended that the plaintiff has executed an agreement of sale and mortgage deed admitting the ownership of the plaintiff. She has not produced any documentary evidence to prove the agreement of sale or alleged mortgage deed. Both oral and documentary evidence produced by the plaintiff clearly established that the plaintiff is the owner of the property and that the defendant is the monthly tenant of the suit property under the plaintiff for a monthly rent of Rs. 4,000/- per month. The plaintiff further proved that the defendant''s tenancy has been properly terminated by issuing notice - Ex. P. 2 under Section 106 of the Transfer of Property Act. Both the Courts below have concurrently held that the plaintiff has proved his ownership and termination was made in accordance with the provisions of Section 106 of the Transfer of Property Act and ultimately decreed the suit directing the defendant to vacate the suit property. Such a finding is based on the cogent legal evidence on record and the same is in accordance with law. The appellant has not made out any prima facie case so as to interfere with the concurrent findings of fact recorded by the Courts below under the provisions of Section 100 of the Code of Civil Procedure. No substantial question of law is involved in this appeal.

Apart from the said concurrent findings recorded by the Courts below, it is brought to the notice of this Court by the learned Counsel for the respondent that the appellant/defendant has already vacated and handed over the vacant possession of the suit property to the plaintiff/landlord and a memo to that effect filed is also placed on record.

Accordingly, the regular second appeal is dismissed.