Bangalore District Court
Mr.Mohammed Ayaz vs Mr.Fazal Ahmed Khan on 29 November, 2016
IN THE COURT OF THE XIX ADDL. CITY CIVIL &
SESSIONS JUDGE AT BANGALORE CITY: (CCH.18)
Dated this 29th day of November, 2016.
Present
SMT.K.B.GEETHA, M.A., LL.B.,
XIX ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
O.S.NO.9404/2015
PLAINTIFF: Mr.Mohammed Ayaz
Aged about 52 years,
S/o Late Mr.G.M.Hussain,
Residing at No.1, Bore Bank Road,
Benson Town, Bangalore-560 046.
(By Sri.Sujatha Ahmed. - Advocate)
-VS-
DEFENDANTS: 1. Mr.Fazal Ahmed Khan,
Aged major,
S/o Late Mr.Ahmed Khan,
2.Ms.Tabasum,
Aged major,
D/o Late Mr.Ahmed Khan,
3.Mrs.Fahmida Begum,
Aged major,
W/o Late Mr.Ahmed Khan,
R/o Flat No.G-7, Ground Floor,
No.226,Ameena Beau Fort Apartment,
Nawab Hyder Ali Road,
Kalasipalyam, Bangalore-560 002.
4. Ms.Husna Khanum,
Aged major
D/o Late Mr.Ahmed Khan,
2 OS.No.9404/2015
5.Ms.Nusrath Khanum,
Aged major,
D/o Late Mr.Ahmed khan,
All Residing at Flat No.G-7
Ground Floor,
No.226,Ameena Beau Fort Apartment,
Nawab Hyder Ali Road,
Kalasipalyam, Bangalore-560 002.
(By Sri. Ahamed.S.N.-Advocate )
Date of Institution of the suit : 18-11-2015
Nature of the Suit : Ejectment
Date of commencement of recording
of evidence : 05/08/2016
Date on which the Judgment was
pronounced : 29/11/2016
Year/s Month/s Day/s
Total Duration : 01 00 11
JUDGMENT
The plaintiff has filed this suit for eviction of defendants from suit schedule property i.e., for issuance of direction to defendants to quit, vacate and hand over vacant possession of suit schedule property to plaintiff in good condition; for recovery of Rs.2,29,775/-with interest at 18% p.a. towards arrears of rent and maintenance 3 OS.No.9404/2015 charges and to pay damages of Rs.45,000/- per month from the date of suit till handing over vacant possession of suit schedule property and for such other reliefs.
2. The case of plaintiff in nutshell is that the plaintiff is the absolute owner of suit schedule property bearing No. G-7 situated at Ground floor, No.226, Ameena Beau Fort Apartment, Nawab Hyder Ali Road, Kalasipalyam, Bangalore. Plaintiff has leased suit schedule property to one Ahmed Khan under rent agreement dated 25.06.2010, wherein Ahmed Khan agreed to pay rent at Rs.8,500/- and maintenance charges at Rs.1,500 per month and he also paid advance refundable amount of Rs.1,10,000/-. The said lease agreement was period of 11 months, with clause for renewal of the agreement at 5% enhancement for every 11 months. Rent was periodically increased by 5% at the end of every 11 months as stipulated under agreement dated 25.6.2010. The rent was increased at Rs.8,925/- from 05.05.2011; increased to Rs.9,371/- from 05.05.2012 along with maintenance charges at Rs.1,500/- per month. Ahmed Khan paid rents and maintenance 4 OS.No.9404/2015 charges up to April, 2013 but when plaintiff told Ahmed Khan that rent enhanced at 5% amounting to Rs.9,839/- from 05.05.2013, Ahmed Khan expressed his inability to pay the same due to his ill-health & financial difficulties and requested plaintiff to deduct all the subsequent rent and maintenance charges from advance amount of Rs.1,10,000/-. Plaintiff feeling sympathetic towards the state of affairs of Ahmed Khan, agreed to deduct the enhanced rent of Rs.9,839/- and maintenance charges of Rs.1,500/- per month from advance amount; with specific understanding that once the entire advance amount is deducted towards rents and maintenance charges, Ahmed Khan should paid regularly rent and maintenance charges without falling in default and also should paid the entire refundable security deposit of Rs.1,10,000/- at the earliest. As per specific instruction of Ahmed Khan, the arrears of rents and maintenance charges were periodically deducted from advance amount up to February 2014. From March 2014 onwards, Ahmed Khan defaulted in paying subsequent rent and maintenance charges. At that time, Ahmed Khan expressed his ill- 5 OS.No.9404/2015 health and financial difficulties and assured plaintiff that he will vacate the suit schedule property at the earliest and will clear all his dues before vacating the property. Plaintiff agreed for it considering the plight of Ahmed Khan. Accordingly, rent is to be enhanced at Rs.10,331/- from 05.05.2014 onwards. It was informed to Ahmed Khan and he also agreed to pay said amount. However, due to his ill-health, Ahmed Khan died on 14.06.2014 leaving behind defendants as his legal heirs. Defendants continued to reside in the suit schedule property even after death of Ahmed Khan. When plaintiff approached defendants to pay arrears of rent and maintenance charges, they expressed their difficulty to pay the same and assured plaintiff that they will vacate the suit schedule property and pay all arrears of rent and other maintenance charges within two months. On 01.09.2014, again plaintiff visited the suit schedule property and requested them to pay arrears of rent and to vacate the premises. But defendants pleaded to grant some more time and give written undertaking to vacate premises on or before 1.12.2014 without fail. In anticipation that defendants 6 OS.No.9404/2015 would vacate premises within 3 months, plaintiff agreed to grant time till 1.12.2014. Again on 1.12.2014 defendants requested plaintiff to give one more month's time; plaintiff granted one month time. On 5.1.2015, plaintiff visited the suit schedule property and demanded for arrears for rent and vacant possession of schedule property; instead of clearing the arrears of rent, defendants started quarrel with plaintiff and abused him and also threatened that they would file false criminal case of molestation against plaintiff. Plaintiff being continuously threatened by defendants was compelled to file complaint against them before jurisdictional police on 03.02.2015. Instead of handing over physical possession, with an intention to harass plaintiff, defendants field O.S.No.10184/2014 before this court seeking for the relief of permanent injunction. Plaintiff is law abiding citizen and never exerted any pressure of whatsoever nature to illegally evict the defendants as alleged in the said suit. Thus, plaintiff was constrained to issue legal notice dated 6.1.2015 to defendants and thereby terminated the lease agreement and defendants were called upon to quit, 7 OS.No.9404/2015 vacate and handover the vacant possession of the suit schedule property by the end of 31.01.2015. The said notice was duly served upon defendant No.2 but defendant No.2 did not give reply to it. During March, 2015 when plaintiff was making efforts to file the suit against defendants for eviction, defendants requested plaintiff to finally grant 6 months time to look for alternative accommodation and undertook to pay arrears of rent and vacate premises on or before 01.09.2015 and they also assured plaintiff that they will withdraw the suit filed by them. In anticipation of their above request, plaintiff granted 6 months time. But even after 01.09.2015, defendants have not vacated the suit schedule property and they are in the habit of dodging the plaintiff by misleading him. The defendants have neither paid the arrears of rent nor maintenance charges nor handed over vacant possession of the suit schedule premises to plaintiff. Defendants failed to pay the maintenance charges to the apartment association and are consuming water and using all other common facilities of the apartment. Further, they caused lot of nuisance in the 8 OS.No.9404/2015 apartment and enter into petty quarrels with other residents of the apartments which caused lot of embarrassment to plaintiff. In September, 2015, when plaintiff approached the defendants; they adamantly refused to pay arrears of rent and vacated the property. On the other hand, demanded a sum of Rs.2,00,000/- from plaintiff to handover vacant possession of the property. Defendants are due a sum of Rs.2,29,775/- up to September, 2015. Plaintiff requires suit schedule property for his personal use and occupation. Thus, again plaintiff issued the termination notice on 16.9.2015 to defendants and thereby terminated the tenancy. This notice was served upon all the defendants, defendants have given common reply dated 28.10.2015 by making frivolous allegations. Suit schedule property is located in the central area and fetching rent of Rs.45,000/- per month for similar premises of 2 BHK house. Defendants ceased to be tenants subsequent to issuance of termination notice. Hence, defendants have no right to continue in possession and they are liable to pay damages 9 OS.No.9404/2015 of Rs.45,000/- per month for their illegal and unauthorized occupation. Hence, the suit for appropriate reliefs.
3. Defendant No.1 filed his written statement, which is adopted by defendants No.2 to 5. In the written statement, defendant No.1 denied the plaint averments in toto. He further contended that rent was fixed only at Rs.8,500/- plus Rs.1,500/- maintenance charges and it was never enhanced. He further contended that the father of this defendant i.e., Ahmed Khan was hale and healthy till his death. He paid the monthly rent regularly till his death. There were no arrears of rent and maintenance charges and his father never pleaded his inability till his death. After death of their father, defendants are paying the rent and maintenance charges regularly to plaintiff. He further contended that there was illegal demand of rent at 24,000/- per month by plaintiff, which was refused by defendants and because of the interference from plaintiff, he has filed O.S.No.10184/2014 against plaintiff. He denied the contention that on 1.9.2015, they agreed to vacate the suit schedule property 10 OS.No.9404/2015 by the end of 1.12.2014 by executing undertaking in that regard. He also denied that during March, 2015, they have prayed for 6 months time to vacate the property, etc. He further contended that tenancy is not terminated as per provisions of Transfer of Property Act. Rent is not at 45,000/- for 2 BHK in congested area where suit schedule property is situated. Hence, prayed for dismissal of the suit with exemplary costs.
4. From the above facts, the following issues were framed:-
1. Whether plaintiff proves that defendants are being legal heirs of deceased Ahmed Khan continued to be tenants under plaintiff?
2.Whether plaintiff further proves that defendants are in arrears of rent from May, 2013 onwards totally amounting to Rs.2,20,775/-
3. Whether plaintiff has validly terminated the tenancy of defendants?
4. Whether plaintiff is entitled for relief of ejectment of defendants from suit schedule property?11 OS.No.9404/2015
5. Whether plaintiff is entitled for interest at 18% p.a as prayed in the plaint?
6. Whether plaintiff is entitled for mesne profits as prayed in the plaint?
7. What order or decree?
5. On behalf of plaintiff, plaintiff is examined as P.W.1, got marked Ex.P.1 to P.12 and closed his side. On behalf of defendants, 1st defendant is examined as D.W.1, got marked Ex.D.1 and closed his side.
6. Heard arguments of defendant's counsel
7. Findings of this court on the above issues are:-
Issue No.1:- In the Affirmative;
Issue No.2:- Partly in the Affirmative;
Issue No.3:- In the Affirmative;
Issue No.4:- In the Affirmative;
Issue No.5:- Partly in the Affirmative;
Issue No.6:- Partly in the Affirmative Issue No.7:- As per the final order for the following:-12 OS.No.9404/2015
REASONS ISSUE No.1
8. The admitted facts of the case are that plaintiff is the absolute owner of suit schedule property bearing No. G-7 situated at Ground floor, No.226, Ameena Beau Fort Apartment, Nawab Hyder Ali Road, Kalasipalyam, Bangalore. Plaintiff has leased suit schedule property to one Mr.Ahmed Khan under lease agreement dated 25-06- 2010 for a period of 11 months.
9. Plaintiff has produced the original lease agreement as per Ex.P.1. As it was insufficiently stamped plaintiff, has paid duty and penalty on it. This lese agreement is only for a period of 11 months. Hence, it need not be registered. There is no dispute between parties that plaintiff is the owner of suit schedule property and he leased it to Ahmed Khan. Moreover, plaintiff has produced the lease agreement as per Ex.P.1. Thus, recitals of this document could be looked into.
13 OS.No.9404/2015
10. Defendants No.1, 2, 4 & 5 are children and defendant No.3 is the wife of deceased Ahmed Khan. It is not in dispute that Ahmed Khan died on 14.06.2014 leaving behind defendants as his legal heirs.
11. Earlier, plaintiff has filed suit against defendant No.3 naming her as Zubeda Khanum, wife of late Ahmed Khan. After defendants No.1, 2, 4 & 5 appeared in this suit and filed their written statement; then plaintiff struck out the name of Zubeda Khanaum and substituted in her place as Mrs. Fahmida Begum wife of late Ahmed Khan. Afterwards defendant No.3 also appeared through the counsel who is appearing for other defendants and filed memo adopting written statement of other defendants. Thus, it is not in dispute that the present defendant No.3 is the wife of late Ahmed Khan and other defendants are his children.
12. Defendants contended in their written statement that after death of Mr.Ahmed Khan, they continued to reside in suit schedule property as tenants. Plaintiff also not disputed this fact in his plaint. It is thus clear that defendants being legal heirs of deceased Ahmed Khan 14 OS.No.9404/2015 continued to be tenants of suit schedule property under plaintiff after death of Ahmed Khan. Accordingly, Issue No.1 is answered in the Affirmative.
Issue No.2
13. Plaintiff contended that defendants are in arrears of rents and maintenance charges from May, 2013 onwards totally amounting Rs.2,29,775/- as on September, 2015.
14. Defendants emphatically denied that they are in arrears of rent from May, 2013 and arrears of rent is Rs.2,29,775/- as alleged in the plaint.
15. Plaintiff and defendants admitted the due execution of Ex.P.1-rent agreement between parties. The copy of Ex.P.1 was confronted to D.W.1 in his cross-examination and it was marked Ex.P.12.
16. In the cross-examination, D.W.1 categorically admitted that there is a clause in Ex.P.12 that rent shall be enhanced at 5% per every 11 months and he also admitted that they have not paid rentals at enhanced rate as per said agreement. He has also admitted the 15 OS.No.9404/2015 signature of his father on the rent agreement as per Ex.P.1 and it was marked as Ex.P.1(a).
17. The above evidence of D.W.1 coupled with his admission regarding rent agreement and oral evidence of plaintiff clearly establish that the rent agreement was came into existence between plaintiff and Ahmed Khan who is the father of defendant No.1,2, 4 & 5 and husband of defendant No.3 pertaining to suit schedule property. The rate of rent was agreed for Rs.8,500/- per month and Ahmed Khan was also liable to pay maintenance charges of Rs.1,500/- per month. Under this agreement, plaintiff had received Rs.1,10,000/- as advance amount by way of cash from Ahmed Khan. As per clause (7) of the agreement, the rent agreement is for a period of 11 month, commencing from 25.06.2010 and it could be extended further if tenant and owner agreed to with their mutual consent. As per clause(12), the lease period shall be 11 months from the date of execution of the agreement, with mutual consent, period could be extended; then lessee agreed and shall pay enhanced rent 16 OS.No.9404/2015 of 5% on every subsequent lease period. Thus, coupled pleading of clause No.7 & 12 of the agreement made it clear that the rent shall be enhanced at 5% per every 11 months, if Ahmed Khan continued his tenancy in the suit schedule property after 11 months from 25.06.2010. There is no dispute that Ahmed Khan continued his possession after 25.5.2011; thus he ought to have paid the rent at enhanced rate of 5 %.
18. It is specific case of plaintiff that Ahmed Khan paid rent at enhanced the rate from 2011 till 2013 April i.e., at Rs.8,925/- from 05.05.2011 to 05.05.2012; at Rs.9,371/- from 05.05.2012 to 05.05.2013 but from 05.05.2013 onwards Ahmed Khan expressed his inability to pay rent and maintenance charges and requested plaintiff to deduct the same from his advance amount and thus plaintiff deducted the enhanced rent of Rs.9,839/- and maintenance charges of Rs.1,500/- up to February, 2015.
19. It is to be noted here that both plaintiff and defendants in their pleading and also in the evidence of P.W.1 and D.W.1 have categorically deposed that plaintiff 17 OS.No.9404/2015 was not issuing rent receipts either to Ahmed Khan or after his death to defendants at any point of time and defendants or Ahmed Khan have never demanded rent receipts from plaintiff. Hence, as it is, there is no documentary evidence to show that till what date, defendants or Ahmed Khan have paid rentals to plaintiff.
20. Defendants dispute that Ahmed Khan having health problem and had financial difficulties and requested plaintiff to adjust rent amount plus maintenance charges from security deposit. However, D.W.1 in his cross- examination admitted that Ahmed Khan was suffering from kidney problem and had required regular dialysis.
21. To substantiate that plaintiff has deducted the said of rent and maintenance charges from advance amount, plaintiff mainly relied upon his oral evidence, his pleading and also as demanded in legal notice.
22. It is to be noted here that at first plaintiff has issued legal notice to defendants terminating their tenancy with effect from 01.02.2015 by issuing legal notice dated 06.01.2015 wherein he stated that the tenancy come to an 18 OS.No.9404/2015 end to 31.01.2015. Plaintiff has not produced office copy of said legal notice but it was confronted to P.W.1 at para- 26 of his cross-examination and he admitted said document in his cross-examination and thus it was marked Ex.D.1.
23. In the cross-examination at para-22, P.W.1 has deposed that he has not issued rent receipts to Ahmed Khan but there was mutual understanding between him and Ahmed Khan. He has deposed that defendants have not paid any rental to him at any point of time and thus there is no question of issuing rent receipts to them. He has deposed that said understanding between him and Ahmed Khan was oral and hence there is no document in that regard. It was suggested to P.W.1 that there is no such understanding, but P.W.1 denied said suggestion. It is to be noted here that D.W.1 also in his evidence at para-8 deposed that his father had not received rent receipts for having paid rentals. He has not demanded plaintiff to furnish rent receipts and his father also had not demanded plaintiff to furnish rentals. He volunteered that 19 OS.No.9404/2015 there was mutual understanding between his father and plaintiff and without obtaining rent receipt his father has paying rents. He also deposed that his father has did not demand rent receipts and plaintiff has not issued them. The above overall evidence of P.W.1 and D.W.1 made it very clear that plaintiff was not in the habit of issuing rent receipts and it is was not disputed either by defendants or by original tenant-Ahmed Khan.
24. P.W.1 admitted that there is a recital in Ex.P.1 that Ahmed Khan paid rentals and maintenance charges up to September 2013. P.W.1 deposed that there is a mistake in Ex.D.1 on this point and hence second notice was issued; but there is no mention in second notice that there was such mistake committed in Ex.D.1. It is to be noted here that in Ex.P.4-legal notice dated 16.09.2015, plaintiff specifically stated that rent was enhanced by 5% from 05.05.2011 to Rs.8,925/-; by 5% from 05.05.2012 to Rs.9,371/- by 5% to Rs.9,839/- from 05.05.2013. However, in Ex.D.1 i.e., in the earlier notice it is only mentioned that the there is a condition in the lease 20 OS.No.9404/2015 agreement that if tenant continues in occupation of the leased premises after 11 months, he has to pay enhanced rent of 5% for every lease period of 11 months. However, it is not stated in Ex.D.1 that whether Ahmed Khan paid rentals at enhanced rate or at original rate. This notice is silent on this point. But this point is elucidated in subsequent notice as per Ex.P.4. In this Ex.P.4, there is specific mention that Ahmed Khan paid rentals at enhanced rate as and when the rent was enhanced.
25. As discussed above when there are no documents between parties to say exactly what was the rent paid Ahmed Khan, the court has to hold that Ahmed Khan had paid the rentals at enhanced rate because there is specific clause in the agreement as per Ex.P.1 between plaintiff and Ahmed Khan regarding enhancement of rent as discussed earlier.
26. As per section 92 of the Evidence Act, when such terms of contract are reduced into a document and when it is proved that document is properly executed by both the parties; then no evidence shall be given that there is 21 OS.No.9404/2015 an oral agreement or statement which is contradicting, varying, adding or subtracting from the original terms of the agreement.
27. Under these circumstances, this court holds that the recitals in Ex.P.1 which is an admitted document between plaintiff and Ahmed Khan are acted upon between them. Thus, it is to be held that Ahmed Khan had paid rentals at enhanced rate as per the clause No.7 and 12 of Ex.P.1.
28. According to these clauses of Ex.P.1, the rent is to be enhanced from 25.05.2011 at Rs.8,925/-; from 25.04.2012 at Rs.9,371/- and from 25.03.2013 at Rs.9,839/-. However, though there is a clause that rent shall be enhanced for every 11 months, plaintiff pleaded in the plaint and also in his legal notice as per Ex.P.4 that he enhanced the rate of 5% as per every year and not for every 11 months. Hence, when plaintiff himself agreed for it, it is to be held that rent was enhanced at every year and not at every 11 months.
29. In the plaint and also in Ex.P.4-legal notice, plaintiff pleaded that from April, 2013 onwards, Ahmed Khan has 22 OS.No.9404/2015 not paid rents and maintenance charges but requested to deduct the same from advance amount. But in Ex.D.1, it is pleaded that up to September, 2013 Ahmed Khan paid the rentals and afterwards he requested to deduct the same from advance amount. Thus, according to Ex.D.1, rent due is from October, 2013 whereas according to Ex.P.4, the rent due is from May, 2013. Defendants dispute factum of arrears of rent and maintenance charges hence it is the burden of plaintiff to establish that there is arrears of rent and maintenance charges.
30. The conduct of parties is to be looked into to decide this aspect, as there is no written document between parties to prove the payment of rentals or arrears of rent because admittedly rent receipts were not issued.
31. Admittedly, plaintiff issued legal notice as per Ex.D.1 on 06.01.2015 calling upon defendants to pay arrears of rent and to vacate the suit schedule property; he terminated the tenancy after 31.01.2015. It is not in dispute that even before issuance of this notice, defendant No.1 has filed OS.No.10184/2014 against present plaintiff 23 OS.No.9404/2015 in the month of December, 2014 alleging that plaintiff is claiming rent at 24,000/- per month and trying to evict him illegally. Even after filing of the said suit in December, 2014 or even after issuance of this legal notice during January, 2015 or even after issuance of subsequent legal notice as per Ex.P.4 on 16.09.2015, defendants have not made any efforts to pay admitted rate of rent or maintenance charges to plaintiff before court.
32. Plaintiff's counsel has filed I.A.No.4 on 25.04.2016 in this suit U/S.151 CPC praying for issuance of direction to defendants to deposit rent in the court. It is stated in the affidavit annexed to I.A.No.4 that defendants continued to reside in the suit schedule premises but not paying the arrears of rent and maintenance charges and causing lot of nuisance in the Apartment. But they have falsely alleged in the written statement for they are paying arrears of rent, maintenance charges. Till date, defendants have not paid any amount towards rent and maintenance charges. Hence prayed for issuance of 24 OS.No.9404/2015 directions to defendants to deposit the rent or damages in the court.
33. Even after filing of this I.A.No.4, defendants have not made any efforts to deposit at least subsequent rent before court; on the other hand, they have filed objections to this I.A.No.4 stating that plaintiff has not stated that at what rate of rent or damages to be deposited in the court, as plaintiff prayed for damages at Rs.45,000/-. They contended that they are being paid Rs.10,000/- per month to plaintiff and plaintiff filed this suit with malafide intention.
34. At least from the date of filing of the suit by defendants or at least from the date of receipt of legal notice by plaintiff, defendants have to make payment of rent to plaintiff in the court or by receiving any document in that regard from the plaintiff. At least they could have made payment through cheques. Hence, without doing so, by merely saying that they are making payments of rent to plaintiff is not believable thing. Always, positive act is to be proved and not the negative act. The 25 OS.No.9404/2015 contention of defendants that they are paying rent is the positive act and hence it is their burden to establish that they have been making payment of rent at least from the date of filing of the suit by them. But there is no such payment by defendants. Hence, this court holds that defendants have not paid arrears of rents and maintenance charges.
35. As there is an averment in the earliest legal notice of plaintiff that Ahmed Khan paid rent and maintenance charges up to September 2013 and he is due from October, 2013, it is be held that the said averment is right and proper and not the averment in Ex.P.4 and this plaint that Ahmed Khan paid rentals up to April 2013 only.
36. In all above notices and plaint, there is a statement that Ahmed Khan requested plaintiff to deduct the rentals and maintenance charges from advance amount from October, 2013 or from May, 2013 onwards. The said deduction from the advance amount could be adjusted for arrears of rent and maintenance charges for a period of 10 months. Hence, plaintiff has adjusted it up to July 2014. 26 OS.No.9404/2015 Hence, it is to be held that from August 2014 onwards, defendants have not made payment of rent and maintenance charges. This fact is further substantiated from the say of defendants that since from 4 months prior to filing of the suit in O.S.No.10184/2014, plaintiff is demanding enhanced rent. It is to be held that as from August 2014 onwards advance amount is also closed, definitely plaintiff made demand for payment of rent and maintenance charges. That demand itself was considered by defendants as illegal demand and they have filed the suit in December 2014. Hence, viewed from any angle, this court holds that defendants are in arrears of rent and maintenance charges from August 2014 onwards.
37. As discussed earlier, the rent was enhanced to Rs.9,839/- as on August, 2014; hence from August, 2014 till filing of the suit in November, 2015; the rent and maintenance charges amounts to Rs.1,81,424/-. Thus, this court holds that plaintiff is proved that from August 2014 till filing of the suit, the defendants are in arrears of rent and maintenance charges totally amounting to 27 OS.No.9404/2015 Rs.1,81,424/-. Accordingly, Issue No.2 is answered partly in the affirmative.
Issue No.3
38. It is the specific contention of plaintiff that he has terminated the tenancy by issuance of legal notice dated 06.01.2015, but as requested by defendants, again he has given 6 months time to defendants; they have not vacated even after completion of said 6 months and hence he again issued legal notice dated 16.09.2015 as per Ex.P.4 to defendants calling upon them to quite, vacate and hand over vacant possession.
39. When tenancy is month to month tenancy, for a period of 11 months then as per Section 106 (1) of the Transfer of Property Act, the lease is terminable on the part of either lessor or lessee by 15 days' notice. Accordingly, through Ex.P.4 dated 16.09.2015, plaintiff terminated the rental agreement dated 25.06.2010. In this notice, plaintiff demanded to pay arrears of rent and maintenance charges with interest and also handover vacant physical possession of schedule premises within 15 28 OS.No.9404/2015 days from the date of receipt of the notice. Thus, plaintiff has validly terminated the tenancy by issuing this notice. This notice was issued to all the defendants. Plaintiff has produced postal receipts as per Ex.P.5. He has also produced postal acknowledgments as per Ex.P.6 to P.10 to prove that this notice was served upon defendants.
40. According section 106 (4) of Transfer of Property Act, every notice of termination must be in writing, signed by or on behalf of the person giving it, and it shall be either tendered or delivered personally to such party, or to one of his family or servants at his residents or affixed to a conspicuous part of the property.
41. As discussed above, plaintiff issued legal notice to one Zubedha Khanam and not to Fahmida Beguam (defendant No.3). But now the name of defendant No.3 is substituted as Fahmida Beguam. This notice issued to Zubeda Khan was received by one of the other defendants i.e., one of the daughter of defendant No.3. This fact is also admitted by D.W.1. in his cross-examination, that said person is one of the daughters of defendant No.3.
29 OS.No.9404/2015
42. In this regard plaintiff's counsel relied on the citation reported in AIR 1989 SC 1470 between H.C.Pandey And G.C.Paul. wherein their lordship held that heirs of deceased tenants called as joint tenants. Under those circumstances notice served on one of the heirs is sufficient.
In the above said citation their lordship held as follows:-
"4. It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefor. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants. In the present case it is appears that the respondent acted on behalf of the tenants, that he paid rent on behalf of all and he accepted notice also on behalf of all. In the circumstances, the notice served on the respondent was sufficient. It seems to us that the view taken in Ramesh Chand Bone 30 OS.No.9404/2015 (supra) is erroneous where the High Court lays down that the heirs of the deceased tenant succeeded as tenants in common. In our opinion, the notice under section 106 of the Transfer of property Act served by the appellant on the respondent is a valid notice and therefore the suit must succeed."
43. Relying on the above said citation, this court holds that in the instant case, after death of Ahmed Khan, tenancy devolves upon defendants as heirs and thus heirs succeeded to the tenancy as joint tenants. Hence, issuance of legal notice to other defendants and service of legal notice to other defendants is sufficient even against defendant No.3. Hence, this court holds that by serving this legal notice as per 16.9.2015, plaintiff has validly terminated the tenancy.
44. At first, plaintiff issued legal notice dated 06.01.2015 and terminated the tenancy but then allowed the defendants to continue for a period of 6 months and again issued notice dated 16.09.2015 and terminated the tenancy. Thus, plaintiff twice terminated the tenancy. In this regard learned counsel for the plaintiff relied on 31 OS.No.9404/2015 citation reported in AIR 1977 Cal 142 between K. Vasudeva Rao And Jadu Nandan Trivedi wherein their lordships held as follows:
" In the present case also after the expiration of the notice of 1965, the defendant remained in possession of the suit room. The plaintiff again gave a notice in 1967. The first notice was, therefore, waived. There is no illegality in the second notice given by the plaintiff and served upon the defendant in 1967."
Thus, relying on the above said citation, even in the present case, though plaintiff issued notices twice, the second notice survive and first notice became waived. Hence, notice as per Ex.P.4 is valid notice and plaintiff validly terminated the tenancy. Accordingly, Issue No.3 is answered in the affirmative.
Issue No.4
45. When plaintiff proved that he has validly terminated the tenancy, definitely plaintiff is entitled for ejectment of defendants from suit schedule property. Accordingly, Issue No.4 is answered in the affirmative. 32 OS.No.9404/2015
Issue No.5
46. Plaintiff prayed for interest at 18% on arrears of rent and maintenance amount. Admittedly, there is no clause for payment of interest in the lease agreement. However, even then, the rent amount and maintenance charges are legally recoverable amount to plaintiff. Even such amount was not paid to the plaintiff as and when it was due. If it was paid as and when due, plaintiff could have utilized said amount and he could have invested it. At least if plaintiff had kept said amount in FD in any of the nationalized Bank, definitely he could get interest at 10% p.a. on this amount. Hence, this court holds that plaintiff is entitled for interest at 10% p.a. on Rs.1,81,424/- from the date of the suit till realization. Accordingly, Issue No.5 is answered partly in the affirmative. [[[[[[ Issue No.6
47. Plaintiff claims Rs.45,000/- per month as damages from the date of suit till handover vacant possession of the suit schedule premises stating that said amount is the present rent in the surroundings of suit schedule property. 33 OS.No.9404/2015 However, to substantiate the same, plaintiff has not produced any iota of evidence. Even, D.W.1 denied the suggestion on this point in his cross-examination. However, as discussed earlier while discussing the above issues, this court already holds that Ahmed Khan had agreed to pay rent at enhanced rate of 5% per 11 months. If that is being calculated; as on the date of suit, plaintiff was entitled for Rs.10,331/-. It is an admitted fact that the rents are being enhanced in all the localities. Plaintiff has rightly terminated the tenancy. Hence, this court holds that plaintiff is entitled for mesne profits at Rs.10,500/- plus maintenance charges of Rs.1,500/- in all Rs.12,000/- per month from the date of suit till defendants handover the vacant possession of the suit schedule property to plaintiff. Accordingly, Issue No.6 is answered partly in the affirmative.
Issue No.7
48. In view of findings on issue Nos.1 to 6, this court proceeds to pass the following:
34 OS.No.9404/2015
ORDER Suit is partly decreed with costs against defendants. Defendants are hereby directed to quit, vacate and handover the vacant possession of the suit schedule property to plaintiff within 3 months from the date of this judgment.
Plaintiff is entitled for Rs.1,81,424/- as arrears of rent from October, 2013 till filing of suit with interest at 10% p.a. from date of suit till realization from defendants.
Defendants are jointly and severally liable to pay Rs.1,81,424/- with interest at 10% p.a. to plaintiff.
Draw decree accordingly.
(Dictated to the Stenographer transcribed and computerized by her, corrected and then pronounced by me in the open Court on this the 29th day of November, 2016).
(K.B.GEETHA) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - Mohammed Ayaz
b) Defendants' side :
D.W.1- Fazal Ahmed Khan 35 OS.No.9404/2015 II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Rental Agreement
Ex.P. 2 Undertaking agreement
Ex.P.3 Certified copy of the plaint in
O.S.No.10184/2014
Ex.P.4 Office copy of legal notice
Ex.P.5 Postal receipts
Ex.P.6 to 10 5 postal acknowledgments
II. List of documents exhibited on behalf of :
(b) Defendant's side :
Ex.D.1 Office copy of legal notice
(K.B.GEETHA)
XIX ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
36 OS.No.9404/2015
37 OS.No.9404/2015
29/11/2016
Judgment pronounced in open court
vide separate detailed judgment with the following operative portion:-
ORDER Suit is partly decreed with costs against defendants.
Defendants are hereby directed to quit, vacate and handover the vacant possession of the suit schedule property to plaintiff within 3 months from the date of this judgment.
Plaintiff is entitled for Rs.1,81,424/- as arrears of rent from October, 2013 till filing of suit with interest at 10% p.a. from date of suit till realization from defendants.
Defendants are jointly and severally liable to pay Rs.1,81,424/- with interest at 10% p.a. to plaintiff.
Draw decree accordingly.
(K.B.GEETHA) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.