Yuvaraj and Others vs Naveenkumar

B. Veerappa, J—The tenants have filed the above revision petition against the judgment and decree dated 25.4.2015 made in SCC. 1/2012 on the file of the Principal Senior Civil Judge, Bagalkot, decreeing the suit of the respondent-plaintiff and directed the defendants 1 and 2 to quit and deliver vacant possession of the suit schedule property bearing CTS No. 429 measuring 20'' x 25'' which is shown as ABCDEFGH, situated at Ward No. 9 of Bagalkot, within three months from the date of the order and also reserved liberty to the plaintiff to get possession of the suit property under due process of law.

It is the case of the respondent-plaintiff that the suit schedule property, more fully described in the plaint, was given to the plaintiff, his mother and brothers and therefore, the plaintiff and his family members are the absolute owners of suit property and it is stated in the plaint that the suit is filed by the plaintiff on behalf of his mother, sisters and brothers. The defendants in the suit schedule property to an extent of 20 feet East-West and 25 feet North-South are in possession from the ancestors of the plaintiff on rental basis. After the ancestors of the defendants, the defendants continued in possession of the suit schedule property on rental basis. The suit schedule property is described as ''WXYZ'' in the sketch enclosed along with the plaint. The ancestors of the plaintiff have given the above said property on rental basis to the ancestors of the defendants about 40 years ago fixing the monthly rent. The suit property is a small shop in which defendants are running ''Sardar Hotel'' and ancestors of defendants were being paying paid rent fixed. After the death of ancestors of defendants, mother of the defendants by name Chandraprabha Dalavi and thereafter the defendants also continued in possession of the aforesaid property on rental basis orally. In the year 2001, the plaintiff has become owner of the suit property and defendants continued their relationship with the plaintiff as tenants and plaintiff as landlord. However, there was no written document or mortgage deed executed in between the ancestors of plaintiff and defendants. Therefore, the defendants are being paid rent as orally fixed for every month. Then the defendants and their mother colluding with other persons who are in inimical terms with the plaintiff, got filed O.S. No. 24/2008 against the plaintiff and his brother Praveenkumar Andaneppa Wali for permanent injunction and the in the said suit, on 20.6.08 the defendants obtained permanent injunction. In the meanwhile before disposing said O.S. 24/08, the defendants in the name of the plaintiff, his mother and another brother got executed a false agreement dated 2.2.2008. The said false agreement is not binding on the plaintiff as it is created by defendants behind the back of the plaintiff, their mother and brother.

It is also contended by the plaintiff that there was no legal document executed in between the plaintiff and defendants in respect of the suit property, still the defendants are in possession of the suit property as tenants by paying monthly rent orally fixed and therefore, the defendants used to give the rent for every calendar month of first day and last date of the month. From 1.2.2008 the defendants are being paid Rs. 1,000/- as rent but the defendants have not paid totally Rs. 47,000/- as arrears of 48 months. It is also specifically contended that plaintiff himself and his brother Praveenkumar are intended to start a new business in the suit property which is in possession of the defendants stating that the said property is very much necessary for starting new business by the plaintiff and his brothers. Therefore, the plaintiff and his brother voluntarily requested defendants to hand-over the possession of the suit property by paying arrears of rent. But the defendants neither handed over possession of the suit property nor paid arrears of rent of Rs. 48,000/-. Therefore, plaintiff issued legal notice to the defendants on 12.12.2011 requesting to vacate the suit schedule property and hand over possession of the suit property. The defendants have not replied the said notice nor paid the arrears of rent, and therefore the plaintiff constrained to file the suit for possession and also for claiming damages, etc.

The 1st defendant filed written statement and 2nd defendant has adopted the same. They have denied the relationship between plaintiff and defendants as landlord and tenants and also denied the ownership of plaintiff over suit schedule property. It is also denied that brother, sister and mother of the plaintiff have given oral consent to the plaintiff to file the present suit. It is not admitted by the defendants that schedule shown in the plaint in respect of suit property is not correct. But it is admitted that earlier Baburao Kokate was the tenant in the suit property. Later mother of plaintiff, after death of Baburao Kokate became the tenant. After death of Chandraprabha Dalavi, the defendants are residing as tenants. But the defendants submit that they are not the tenants under the plaintiff as claimed by plaintiff. It is admitted that the defendants are running hotel in the name and style "Sardar Hotel". The ancestors of defendants were paying rent to the owner who is residing at Athani who is claiming to be true owner. It is also denied by defendants that they are paying rent to the plaintiff as per oral agreement between the parties. It is also not admitted that the plaintiff has become owner in the year 2001 but however, it is admitted by defendants that there is no agreement regarding tenancy between the plaintiff and defendants. Further it is admitted that mother of the defendants had filed O.S. 24/08 before the Principal Civil Judge (Jr. Dn) against the plaintiff. The said suit rightly decreed but the plaintiff has not preferred any appeal and the permanent injunction granted in the said suit is binding on the plaintiff and his men till today, etc. On these grounds the defendants sought for dismissal of the suit.

In order to establish their case the plaintiff examined himself as P.W. 1 and produced documents Ex. P. 1 to Ex. P. 9. Defendants have not examined any witnesses nor produced any documents. Considering the entire oral and documentary evidence, the Trial Court by the impugned judgment and decree dated 25.4.2015 decreed the suit and directed the defendants to quit and deliver the vacate possession of the suit schedule property to plaintiff within three months from the date of the order.

Against the said order, the present revision petition is filed by the defendants.

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

Sri Sanjay B. Channal, learned Counsel for petitioners has contended that the impugned judgment and decree passed by the court below is contrary to the law and the trial court before passing the impugned judgment and decree has not given opportunity to lead evidence to the petitioners and under those circumstances, the impugned judgment and decree passed by the trial court is liable to be set aside. It is also contended by the petitioners that the plaintiff is not the owner of the property in question. Therefore, the question of decreeing the suit does not arise as there is no relationship of landlord and tenant between petitioners and respondents. Therefore, the impugned judgment and decree passed by the court below is erroneous, contrary to law and is liable to be set aside.

Per contra, Sri. Sangram S. Kulkarni, learned Counsel for respondents has strenuously contended that the defendants are tenants under the plaintiff and plaintiff, his mother and brothers and on behalf of joint family the suit was filed for their bona fide use and occupation and admittedly, the defendants have not replied the legal notice issued by the plaintiff and no evidence is adduced. Therefore, he sought to justify the impugned judgment and decree passed by the courts below.

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 trial court considering the oral and documentary evidence and the documents Ex. P. 1 to P. 9 has categorically recorded a finding that the P.W. 1 has stated on oath that earlier one Baburao Kokate was tenant in the suit property and after his death, Smt. Chandraprabha Dalawi, who is mother of defendants and defendants are residing as tenants. Therefore, the defendants and their ancestors were residing in the suit property as tenants and there are no any written documents in respect of rent fixed and also stated that, after the death of defendants'' father, the mother and defendants were residing in the said hotel on only oral tenant agreement and ancestors of defendants were being paid rent to the plaintiffs. After 2001, the plaintiff became the owner and defendants are tenants running business in the suit property under the name and style as "Sardar Hotel" on oral tenant agreement. There are no any documents in respect of rent fixed and there is no any registered document. Therefore, the defendants who are paid rent on oral agreement running business as tenants and plaintiff is the landlord. P.W. 1 also stated that his brother Praveenkumar is having business and he wanted to start the business in the suit property and there is no any alternative shop available to him and suit property is required to start his business.

P.W. 1 was cross examined by the defendant. In the cross examination of P.W. 1, it is proved that, there is a relationship of landlord and tenants in between the plaintiff and defendants. But P.W. 1 categorically denied that, the defendants are residing in the suit property on rented basis since 50 years. So also P.W. 1 has not admitted suggestion of the defendants that, original owner of "Sardar Hotel" is residing at Athani taluka. Herein the cross-examination of P.W. 1 he has admitted that there are no any documents regarding the agreement of rent in between the plaintiff and defendants.

Ex. P. 1 which is certified copy of the property extract bearing CTS. No. 429/67-C and at page No. 2 of Ex. P. 1, it discloses that, as per A.C. order, father of plaintiff i.e. Andaneppa Nagappa Wali became owner of the suit property and after his death, the plaintiff, his mother and brothers have become owners of the suit property. On perusing Ex. P. 1 it is confirmed that, the plaintiff is the landlord and defendants are tenants under the landlord-ship of plaintiff. So, Ex. P. 2 notice got issued on 12.12.2011 Section 106 of Transfer of Property Act for termination of tenancy of defendants, which is received by the defendants as per Ex. P. 4 to P. 9, which are postal receipts, postal acknowledgements and courier acknowledgment. So all these documents goes to show that notice issued as per Ex. P. 2 duly served to the defendants on 13.12.2011. Therefore, even though after the receipt of notice, the defendants did not chosen to quit and deliver the vacant possession of the suit property. So, though the oral evidence of P.W. 1 it is clear that, tenancy has been terminated. Even then the defendants continued their possession illegally over the suit property. Therefore, from the cross-examination of P.W. 1, it is proved that, tenancy has been terminated by issuing quit notice as per Ex. P. 2. Under such circumstances, the defendants have to get vacate the suit property, which requires for starting the new business for the plaintiff''s brother Praveenkumar in the suit property.

The Trial Court further recorded a finding that, even though the defendants filed written statement, but they have not chosen to contest the proceedings by adducing the oral and documentary evidence. Therefore, from oral evidence of P.W. 1 and in support of the document Ex. P. 1 proved that, the plaintiff is the owner of the suit property. In the written statement, defendants categorically admitted the fact that, plaintiff is the owner of the suit property and they are running business in the name and style of "Sardar Hotel" under the landlordship of plaintiff on monthly rent of Rs. 1,000/-, which clearly goes to show that, defendants are tenants under the landlordship of plaintiff in the suit property and they are running business in the name and style as "Sardar Hotel" in the suit property.

Admittedly, defendants have not replied to the legal notice issued by the plaintiff under Section 106 of Transfer of Property Act, which is marked as Ex. P. 2. The legal notice discloses that, on the oral lease, defendants came in possession of the suit property on monthly rent of Rs. 1,000/-. This clearly proves that, tenancy of defendants in the suit property is oral tenancy and there was no written lease agreement in between them. Considering the entire material on record and even though the defendants have filed written statement denying plaint averments, but they did not step into the witness box for adducing their oral and documentary evidence. Therefore, the trial court recorded a specific finding that plaintiff proves that he has terminated the tenancy of defendants by issuing statutory notice and under Section 106 of Transfer of Property Act, and held that the plaintiff is entitled to recovery of suit property and permitted plaintiff to initiate separate enquiry under the process of law with regard to damages. Accordingly, the trial court decreed the suit and granted 3 months time to defendants to quit and deliver the vacant possession of the suit property bearing CTS. No. 429 measuring 20 x 25 feet, failing which reserved liberty to the plaintiff to get possession of the property under the process of law.

The said judgment and decree passed by the Court below is based on the sound legal principles and based on oral and documentary evidence on record and petitioner has not produced any material contra evidence. Therefore, the impugned judgment is a well crafted judgment and no interference is called for in the revision while exercising powers under Section 115 of CPC.

Accordingly, the revision petition is dismissed However, in the interest of justice to accommodate defendants to vacate the suit property, eight months time is granted and the defendants shall quit and deliver vacant possession of the suit premises in favour of plaintiff without on or before 21.03.2016, without driving the plaintiff/landlord to initiate further legal proceedings.

The defendants shall file an undertaking affidavit before this Court in the above terms within three weeks from today. The defendants shall pay the rent as agreed and shall go on paying the rent till they vacate the premises without any default and in case of committing default for a period of 2 months, the landlord is at liberty to execute the decree.

In view of disposal of revision petition, I.A. 1/15 for Stay does not survive for consideration and it is accordingly disposed of.