Yashawant vs Vijay Rajaram Daiv and Others

B. Veerappa, J.—This is the defendants second appeal against the judgment and decree dated 28.07.2011 made in R.A. No. 48/2007 on the file of the FTC-I, Chikkodi, dismissing the appeal with costs of Rs. 10,000/- confirming the judgment and decree dated 22.08.2007 made in O.S. No. 5/2005 on the file of the Civil Judge (Jr. Dm), Nipani dismissing the suit in part directing to pay a sum of Rs. 5,000/- as damages for a period of 12 months from the date of suit till delivery of the possession of the suit property to the plaintiffs.

The plaintiffs - respondents filed suit against the defendant for recovery of possession of suit property from the defendant and also damages of Rs. 8,000/- for a period of 12 months contending that the suit property consists of business premises measuring 19 feet East-West and 11 feet South-North on Easter side and 10 Feet South-North on Western side out of property bearing CMC No. 103/180/93 which totally measures 85 feet East West on Southern side and 77 feet East-West on Northern side and 64 feet 9 inches South-North on Eastern side and 52 feet South-North on Western side situated within the limits of city Municipal, Nipani. They are the owners of the property in question and it is their ancestral property. The defendant is in occupation as a monthly tenant at the rate of Rs. 8,000/- for 12 months and the said property was leased to the father of the defendant in the year 1960 running business of cold drinks. The father of the defendant after taking the suit property on lease started business of cold drinks under individual partnership named and styled as Apsara Cold Drinks and said business was continued by the defendant by having necessary licence and certificates from the labour office of Government of Karnataka and he was paying rents to the plaintiffs at Rs. 8,000/- till the end of April 2004 etc. Therefore, sought for possession.

The defendant filed written statement and denied the plaint averments and contended that suit filed by the plaintiff is not maintainable and admitted the relationship of landlord and tenant, contending that he was paying rent Rs. 3,000/- per year and not Rs. 8,000/- per year as contended by the plaintiff and admitted contents of para 4 of the plaint etc.

Based on the pleadings, the Trial Court framed the following issues:

"1. Whether plaintiffs prove that defendant is in monthly rent tenant for running his cold drink business in suit property and already he paid Rs. 8,000/- 12 months rent till the month of April 2004?

Whether the plaintiffs prove that they have given a statutory notice to the defendant for vacating the possession of suit property for their personal use and defendant monthly tenancy is terminated in the month of November 2004?

Whether plaintiffs prove that they are entitled to the vacant possession of property?

Whether defendant proves that suit of the plaintiff is not maintainable since subject matter of suit in dispute comes in the purview of Section 2(e) II of K.R.C. Act, 1999?

Whether defendant proves that he is in yearly tenant of suit property for Rs. 3,000/- per year and same is given to plaintiff No. 5 Dilip for this year and his tenancy ends in the month of March 2005?

Whether defendant proves that suit property is in his possession from the period of his father lifetime and he has no alternative building for running his "Apsara Cold Drinks" business if it is vacated irreparable loss will be caused to him?

Whether defendant proves that suit of the plaintiff is not maintainable for non-joinder of necessary parties to the suit?

Whether defendant proves that suit of the plaintiffs is deserves to be dismissed since plaintiffs have not given six months prior statutory notice to him before claiming the suit property?

Whether plaintiffs prove that they are entitled to the suit reliefs as claimed for?

What order or decree?"

In order to establish, the plaintiff No. 1 examined as P.W.1 and marked documents as Ex. P1 to Ex. P-4. Defendants examined as D.W.1 and marked documents as Ex. D-1 to Ex. D-24. After considering the entire material on record, the Trial Court decreed the suit holding that plaintiffs proved that the defendant was a monthly tenant for running cold drink business of the suit property and he has already paid Rs. 8,000/- for 12 months till the month of April 2014. Accordingly, decreed the suit and directed the defendants to vacate the schedule premises within three months from the date of judgment and also directed to pay Rs. 5,000/- as damages for a period of 12 months from the suit till the date of delivery of the possession of the suit property to the plaintiffs. Against the said judgment and decree of the Trial Court, the appellant filed appeal in R.A. No. 48/2007 before the FTC I Chikkodi who after hearing both the parties has dismissed the appeal confirming the judgment of the Trial Court with cost of Rs. 10,000/-. Against the said judgment and decree of the Courts below, the present appeal is filed.

I have heard the learned counsel for the appellant.

Sri. Sharad V. Magdum, learned counsel for the appellant, has contended that both the courts below have erred in decreeing the suit without considering the fact that the 5th plaintiff is the only person who receiving the rent. Therefore, the impugned judgment and decree of the courts below are liable to be set aside and also contended that the courts below ought to have considered the fact that the suit filed by the plaintiffs is not maintainable in view of the provisions of the Karnataka Rent Act came into force. Therefore, he sought to set aside the judgment and decree of the Courts below.

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

The trial court, considering the evidence of PW-1 and DW-1, documents Exs. P-1 to 4 and Exs. D1 to 24, has recorded a finding that the plaintiffs proved that the defendant is the tenant on monthly rent for running his cold drink business in the suit property and already he paid Rs. 8,000/- twelve months rent, till the month of April 2004 and the plaintiffs also proved that they have given a statutory notice to the defendant for vacating the possession of suit property for their personal use and defendant monthly tenancy is terminated in the month of November 2004 and the plaintiffs are entitled to the vacant possession of property and also recorded a finding that the defendant failed to prove that he is in yearly tenant of suit property for Rs. 3,000/- per year and same is given to plaintiff No. 5 Dilip for the year 2005 and his tenancy ends in the month of March 2005. The defendant failed to prove that suit property is in his possession from the period of his father lifetime and he has no alternative building for running his "Apsara Cold Drinks" business if it is vacated irreparable loss will be caused to him and the defendant also failed to prove that suit of the plaintiff is not maintainable for non-joinder of necessary parties to the suit and also recorded a finding that the defendant failed to prove that suit of the plaintiffs is deserves to be dismissed since plaintiffs have not given six months prior statutory notice to him before claiming the suit property and ultimately, held that the plaintiffs are entitled for possession.

Considering the entire material on record and the law laid down by the Hon''ble Supreme Court, in the case of Samir Mukherjee Vs. Davinder K. Bajaj and Others, , the trial court has held that the plaintiffs are entitled for the possession, holding that the relationship of the landlord and tenant has been proved. The bona fide use and occupation as pleaded by the landlord has been held to be proved and the provisions of Section 106 of the Transfer of Property Act has been followed. Accordingly, the suit came to be decreed.

On re-appreciation, the entire material on record, the lower appellate court framed an issue that "Whether the impugned judgments and decrees require interference of this Court and that the appeals are fit to be allowed?" Considering both oral and documentary evidence on record, the lower appellate court has recorded that the material documents produced shows the ownership of the plaintiffs and possession of defendant over the suit schedule property and relationship of landlord and tenant is not in dispute. The claim of defendant is also not supported with the written lease agreement. The hand-sketch map shown in the reply notice regarding the description of the suit property is not helpful to the defendant in the absence of written lease agreement. It is also held that the parties have gone in trial knowing fully well about these aspects and there is no written lease deed produced by the defendant and receipts of payment of rental is also forthcoming and the area of suit premises is more than 145 sq.ft. and the trial court has already answered about the maintainability of the suit on the preliminary issue. Under the circumstances, the suit premises in which the commercial shops are located are not hit under the provisions of Section 2(e)(n) of the Karnataka Rent act, 1999 and the provisions of Section 106 of the Transfer of Property Act is applicable. Therefore, the appellate court held that in the absence of written lease agreement, it can be gathered that tenancy is monthly tenancy and issue of 15 days statutory notice as per Ex. P-2 is sufficient and further, it is very much clear that the said notice is served upon the defendant. The record shows that the tenancy is of the year 1960 and the defendant as well as his father have sufficiently enjoyed the suit premises and even then, they have not vacated the suit premises and not handed over the possession to the plaintiffs. Thus, they are liable to pay the compensatory cost to the plaintiffs. Accordingly, confirmed the judgment and decree of the trial court. Therefore, the contention raised by the learned counsel for the appellant in the present appeal is not tenable. Both the courts below have concurrently held that the plaintiffs have proved the bona fide use and occupation, and the defendant is a tenant under him and the defendant and his fathers were in possession of the suit premises for more then 55 years and admittedly, the landlord has proved bona fide and use and occupation.

The judgment and decree of the courts below is based on the cogent, legal evidence on record. No substantial questions of law involved in the present case. Accordingly, the regular second appeal is dismissed by confirming the judgment and decree of the courts below, at the stage of admission.