Telangana High Court
V Srinivasa Babu vs Ranga Sandhya 5 Others on 20 December, 2019
Author: Shameem Akther
Bench: Shameem Akther
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
CITY CIVIL COURT APPEAL No.131 of 2016
JUDGMENT:
This City Civil Court Appeal, under Section 96 and Order XLI Rules 1 and 2 of the Code of Civil Procedure, 1908, is filed by the appellant/defendant No.6, challenging the judgment dated 22.03.2016, passed in O.S.No.107 of 2012, by the VII Senior Civil Judge, City Civil Court, Hyderabad, whereby, the suit filed by the 1st respondent herein/plaintiff against the appellant herein/ defendant No.6 and other defendants for eviction and mesne profits was decreed with costs, directing the defendants to vacate the suit schedule property and deliver vacant possession of the same to the respondent No.1/plaintiff within three months from the date of the said decree and further directing the defendants to pay a sum of Rs.5,82,960/- towards difference of mesne profits and damages for use and occupation of the premises from 31.03.2010 till the date of filing of the suit and future mesne profits @ Rs.40,000/- per month from the date of the suit till the vacant possession of the suit schedule premises is delivered to the 1st respondent/plaintiff by the defendants.
2) Heard Sri K.V.Bhanu Prasad, learned counsel for the appellant/defendant No.6, Sri P.Rama Chandran, learned counsel for the respondent No.1/plaintiff and perused the record.
3) The appellant herein is the defendant No.6, the respondent No.1 herein is the plaintiff and the respondents 2 to 6 herein are 2 Dr.SA, J CCCA No.131/2016 the defendants 1 to 5 before the trial Court. The parties will be hereinafter referred to as per their array before the trial Court.
4) The plaintiff filed the suit for eviction of the defendants from the suit schedule property and for the recovery of a sum of Rs.5,82,960/- towards difference of mesne profits and damages for use and occupation of the premises from 31.03.2010 till the date of filing of the suit and for future mesne profits at Rs.40,000/- per month from the date of the suit till realization, contending as follows:
"The plaintiff is the absolute owner of the premises bearing municipal No.16-11-477/3/2/A, consisting of cellar and ground floors, situated at Dilsukhnagar, Hyderabad (hereinafter referred to as "the suit schedule property"). The first defendant obtained the suit property on lease for a period of three years from 01.04.2003 to run his business on a monthly rent of Rs.7,500/-, excluding electricity charges and municipal taxes as per the terms and conditions of the Lease Deed, dated 01.04.2004. Since inception of the lease, the first defendant was acting contrary to the terms of the lease and was deliberately flouting the same. The cellar was provided to the first defendant to be used exclusively for parking and storage of goods (godown). But contrary to the same, the first defendant, without the consent of the plaintiff, erected a shutter to the same and made some material alterations and started using the same as additional shop for his business. The plaintiff, on many occasions, demanded the first defendant through her husband to vacate the suit schedule property, but the first defendant gave a deaf ear to the
3 Dr.SA, J CCCA No.131/2016 same and postponed vacating of the suit schedule property on one pretext or the other. The first defendant not only converted the cellar portion as an additional shop, but also changed the entrance of the cellar portion from west to south and further erected the shutter in the ground floor, restraining the common ingress and egress through the western side common passage, without the consent of the plaintiff. Aggrieved by the said alteration made by the first defendant, the plaintiff wanted to acquire the suit property from the first defendant for setting up business by her son namely Nikhil and accordingly, demanded the first defendant in the month of December, 2009, to vacate from the suit schedule property by 31.01.2010. But the first defendant did not choose to vacate the suit schedule property. Finally, the plaintiff got issued a legal notice, dated 04.02.2010, to the first defendant by terminating the tenancy of the first defendant and further calling upon the first defendant to vacate the suit schedule property and to deliver the vacant possession of the same to the plaintiff by 31.03.2010. The first defendant, having received the said notice, got issued a reply notice, dated 15.02.2010, with false allegations without vacating the suit schedule property. The first defendant, instead of vacating the suit schedule property, sent a sum of Rs.12,600/- through a cheque on 04.05.2010, and later he sent another sum of Rs.12,600/- to the plaintiff till March, 2011, and thereafter from April, 2011 to November, 2011, the first defendant sent a sum of Rs.13,230/- per month and the said amounts were received by the plaintiff as part of mesne profits. Under these circumstances, 4 Dr.SA, J CCCA No.131/2016 the plaintiff is constrained to file the suit for eviction and mesne profits.
5) The first defendant died during the pendency of the suit. The defendant Nos.2 to 4 remained ex parte. The defendant Nos.5 and 6, who are mother and son respectively, filed separate written statements with similar pleadings. They contended as follows:
"The plaintiff is not the owner of the suit schedule property bearing municipal No.16-11-447/3/2/A consisting of cellar and ground floor situated at Dilsukhnagar, Hyderabad. The plaintiff, claiming to be the owner of the mulgi admeasuring 400 square feet in the ground floor of the suit schedule property, leased out the same to the first defendant, which is evident from rental agreement and other correspondence between the parties. In fact, the plaintiff is not the owner of the cellar portion bearing municipal No.16-11-477/3/2/1, admeasuring 6000 square feet and that she has nothing to do with the said cellar portion of the suit schedule property. One T.Ramesh, son of Mr.Bala Veeraiah and Smt.Sailaja, W/o T.Ramesh, are the joint owners of the said cellar portion of the suit schedule property and that the said persons leased out a part of the cellar admeasuring 1440 square feet out of 6000 square feet to the sixth defendant-V.Srinivas proprietor of Poornima & Company, who is the younger son of the fifth defendant, on 01.04.2003, on a monthly rent of Rs.10,000/-, which was enhanced from time to time and now, he is paying the rent for the said premises at Rs.17,380/- per month. The said
5 Dr.SA, J CCCA No.131/2016 owners leased out the remaining part of the cellar to a college to establish their laboratory. Originally, the first defendant, who is the eldest son of the fifth defendant obtained a mulgi admeasuring 400 square feet in the ground floor, on lease, on 01.04.2003, for a period of 11 months for the purpose of running the business, on a monthly rent of Rs.7,500/-. The said tenancy was extended from time to time and the rent was enhanced from time to time and the present rent payable for the said premises is Rs.13,892/- per month. The cellar portion bearing municipal No.16-11-477/3/2/1 admeasuring 1440 square feet was obtained on lease by the younger son of the fifth defendant i.e., sixth defendant herein, on 01.04.2003, from its lawful owner T.Ramesh and Smt.T. Sailaja, who are none other than the brother and sister-in-law of the plaintiff. In the suit schedule premises, the sixth defendant is carrying on business under the name and style of 'Poornima & Company' as its proprietor, by paying monthly rent of Rs.17,380/-. The plaintiff is not entitled to any relief under the quit notice, as it is bad in law. The suit is not maintainable. The defendants further contended that the plaintiff extended the tenancy of the first defendant for an enhanced rent by mutual agreement and accordingly, the first defendant used to pay the rents to the plaintiff and she accepted the same and that the plaintiff with a malafide intention and to cause trouble to the first defendant to extract more rent, claimed that the rents paid by the first defendant were adjusted as mesne profits. The tenancy is subsisting and the plaintiff is not entitled to claim any mesne profits. There is no basis for the plaintiff for fanciful claim and 6 Dr.SA, J CCCA No.131/2016 that the plaintiff has no cause of action to file the suit. The defendants further contend that the present suit was initially filed against the first defendant. The first defendant died on 19.02.2012, leaving behind the defendants 2 to 5 as his legal heirs, but the plaintiff filed an application to bring defendants 1 to 4 only as defendants to the suit as legal representatives of the deceased first defendant. The plaintiff, knowing fully well that the fifth defendant is also the legal heir of the first defendant, ignored her to add as a defendant. After the death of her elder son i.e., the first defendant, the fifth defendant is running the business in the mugli obtained on lease from the plaintiff with the help of her younger son i.e., the sixth defendant herein. The said business is the only source of livelihood for the entire family and that the defendants 2 to 4 are well-off and they have sufficient income from other sources to maintain themselves. Since the death of the first defendant, the fifth defendant is paying the rents to the plaintiff regularly. Hence, the suit is liable to be dismissed."
6) The plaintiff filed the rejoinder to the written statement filed by the fifth defendant reiterating the pleadings in the plaint. The plaintiff further contended as follows:
"The second son of the fifth defendant intended to squat on the suit schedule premises on meagre rent by raising false pleas. The second son of the fifth defendant has no knowledge of the terms of the lease, which the first defendant only settled with the plaintiff through her husband. The fifth defendant does not know what property is leased out to the first defendant by the plaintiff.
7 Dr.SA, J CCCA No.131/2016 The plaintiff has a right over a portion admeasuring 365 square feet of cellar, which is leased out to the deceased first defendant along with mulgi. The plaintiff is the owner of the cellar portion, which is leased out to the first defendant and that the brother of the plaintiff-Mr.T.Ramesh and his wife T.Sailaja are the joint owners of a portion admeasuring 2500 square feet of cellar and not of 6000 square feet, as alleged and the same was leased out to Vamsadhara Educational Society. The notice of termination of tenancy is a valid notice. The suit, as framed and filed, is proper and legally maintainable against the legal heirs of the first defendant among which, the fifth defendant claims to be the mother of the first defendant and hence, the plaintiff properly terminated the tenancy. Since the said notice is valid and legal, the defendants are liable to be evicted from the suit schedule property.
7) Basing on the above pleadings, the trial Court framed the following issues for trial:
1. Whether there is valid legal notice terminating the tenancy, according to Section 106 of the Transfer of Property Act?
2. Whether the plaintiff is entitled for the relief of eviction of the defendants from the suit schedule property?
3. Whether the plaintiff is entitled for recovery of a sum of Rs.5,82,960/- towards difference of mesne profits and damages for use and occupation of the suit schedule premises from 31.03.2010 till the date of filing of the suit?
4. Whether the plaintiff is entitled for future mesne profits at Rs.40,000/- per month from the date of filing of the suit?
5. To what relief?
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8) During trial, on behalf of the plaintiff, P.W.1 was examined and Exs.A.1 to A.16 were marked. On behalf of the defendants, D.W.1 was examined and Exs.B.1 to B.14 were marked.
9) The Court below, on appreciation of both oral and documentary evidence on record, decreed the suit as prayed for with costs, as indicated above. Aggrieved by the same, the defendant No.6 preferred this appeal.
10) The learned counsel for the appellant/defendant No.6 would contend that the impugned judgment and decree passed by the Court below is erroneous in law and on facts of the case. There is no valid notice terminating the tenancy under Section 106 of the Transfer of Property Act, 1882 (for short "T.P.Act"). It is also contended that there is no violation of terms and conditions of Ex.A.1-rental agreement dated 01.04.2004. The respondent No.1/ plaintiff is not the owner of cellar portion of the suit schedule property. There is a tenancy in between the parties with regard to the mulgi situated at ground floor of the suit schedule property. The cellar portion, which is the subject matter of the suit, belongs to the brother and sister-in-law of the respondent No.1/plaintiff and the appellant/defendant No.6 is paying monthly rent to them. Though there are documents to substantiate the same, the Court below erroneously ordered for eviction of the suit schedule property. The Court below is unjustified in grating mesne profits @ Rs.40,000/- per month. Ex.A.2-legal notice dated 04.02.2010, shows only one mulgi and there is no mention about cellar portion. The respondent 9 Dr.SA, J CCCA No.131/2016 No.1/plaintiff has no title over the cellar portion of the suit schedule property and ultimately prayed to set aside the impugned judgment and decree by allowing the appeal.
11) On the other hand, learned counsel appearing for the respondent No.1/plaintiff would contend that Ex.A.1-rental agreement dated 01.04.2004, reveals the ownership and possession of the respondent No.1/plaintiff over the suit schedule property consisting of cellar portion and ground floor of the suit schedule property. A false claim has been setup by the appellant/defendant No.6 that the cellar portion is owned by the brother and sister-in-law of the respondent No.1/plaintiff. There is no single document to substantiate the same. Having considered the submissions made on behalf of both sides, the Court below is justified in passing the impugned judgment and decree. The findings recorded by the Court below are based on oral and documentary evidence on record. There is nothing to take a different view and ultimately prayed to dismiss the appeal.
12) In view of the submissions made by both sides, the following points have come up for determination in this appeal:
1) Whether the respondent/plaintiff is entitled for eviction of the defendants from the suit schedule property?
2) Whether there was valid legal notice terminating the tenancy in terms of Section 106 of T.P Act?
3) Whether the Court below is justified in granting Rs.5,82,960/- towards difference of mesne profits and damages for use and occupation of the suit
10 Dr.SA, J CCCA No.131/2016 schedule property for the period between 31.03.2010 and till the date of filing of the suit and future mesne profits @ Rs.40,000/- per month from the date of suit till the vacant possession of the suit schedule property is delivered to the respondent No.1/plaintiff?
4) Whether the impugned and judgment decree dated 22.03.2016 passed in O.S.No.107 of 2012 by the VII Senior Civil Judge, City Civil Court, Hyderabad, is liable to be set aside?
13) POINT Nos.1 and 2: As seen from the record, Ex.A.1-rental agreement dated 01.04.2004 is entered in between the plaintiff and the deceased-defendant No.1. Ex.A.1 demonstrates that the suit schedule property consisting of the cellar and ground floor premises bearing municipal No.16-11-477/3/2/A, situated at Dilsukhnagar, Hyderabad, was let out to the defendant No.1. On behalf of the plaintiff, her husband deposed as PW.1. PW.1 has a valid General Power of Attorney under Ex.A.16 to prosecute the suit. The evidence of PW.1 corroborated with Ex.A.1-rental agreement dated 01.04.2004, as well as the averments made in the plaint. After the death of defendant No.1, the defendants 2 to 4 were brought on record as L.Rs. Thereafter, the defendant Nos.5 and 6 were brought on record as per orders in I.A.No.719 of 2012 dated 03.09.2012 and I.A.No.802 of 2013 dated 28.10.2013. Except defendant No.5 and the appellant/defendant No.6, no other defendant has contested the suit. DW.1 (defendant No.6) has deposed contrary to the contents of Ex.A.1. Neither defendant No.5 nor defendant No.6 were present, when Ex.A.1 was executed. Though it has been contended that the cellar 11 Dr.SA, J CCCA No.131/2016 portion in occupation of the appellant/defendant No.6 and defendant No.5 said to have been let out by T.Ramesh and Sailaja W/o.T.Ramesh, there is no single document to substantiate their ownership over the said cellar portion. Furthermore, there is no document to show the tenancy in between them and the deceased-defendant No.1, as contended by the appellant. Ex.A.2- legal notice dated 04.02.2010 reveals issuance of notice by the plaintiff under Section 106 of T.P. Act to the defendant No.1, terminating the tenancy in respect of the suit schedule property, calling upon the defendant No.1 to vacate and deliver vacant possession of the same by 31.03.2010. Ex.A.3-postal receipt, dated 04.02.2010, Ex.A.4-certificate of posting, Ex.A.5-courier receipt and Ex.A.6-courier tracking receipt dated 20.02.2010 shows service of Ex.A.2-notice on the defendant No.1. Ex.A.7 is the reply dated 15.02.2010 given by the defendant No.1, wherein a false defence has been setup by the defendant No.1 during his lifetime. Ex.A.8 is the letter dated 04.05.2010 issued by the defendant No.1. Ex.A.9 is the reply dated 08.05.2010 issued by the plaintiff. Ex.A.10 is the postal receipt dated 08.05.2010. Ex.A.11 is the courier receipt dated 08.05.2010. Ex.A.12 is the certificate of posting and Ex.A.13 is the postal acknowledgment dated 11.05.2010. All these documents reveal the correspondence between the plaintiff and the defendant No.1. Ex.A.14 is the certified copy of plaint in O.S.No.1563 of 2007 dated 01.08.2007 and Ex.A.15 is the certified copy of written statement in O.S.No.1563 of 2007 dated 16.11.2007. Ex.A.16 is the General Power of Attorney dated 26.07.2000 issued by the plaintiff in 12 Dr.SA, J CCCA No.131/2016 favour of Sri R.Sudhakar. On the other hand, Exs.B.1 to B.14 were marked. Ex.B.1 is the certified copy of gift deed dated 29.08.1992. Exs.B.2 to B.5 are the legal notices issued by the plaintiff. Ex.B.6 is the reply notice issued by the defendant. Exs.B.7 to B.12 are the property tax receipts. Ex.B.13 is the sales tax licence dated 16.01.2009 and Ex.B.14 is the trade licence dated 28.05.2001. The above documents do not substantiate the contentions as well as the defence putforth by the appellant/ defendant No.6 that T.Ramesh and T.Sailaja are the alleged owners of the cellar portion. There is evidence of PW.1 that cellar portion was let out for parking and it was misused by the defendant No.1 and thereafter by appellant/defendant No.6 and defendant No.5. The oral evidence adduced on behalf of the respondent No.1/plaintiff establishes the ownership of the plaintiff over the suit schedule property and letting out the same to defendant No.1 under Ex.A.1-rental agreement dated 01.04.2004 and other correspondence made in between the parties to the litigation establishes the termination of tenancy. The status of the appellant/defendant No.6 is a trespasser. Section 106 of the T.P. Act contemplates issuance of fifteen (15) days quit notice to deliver possession by the tenant to the landlord. Many years have been passed after the issuance of valid termination notice under Ex.A.2 dated 04.02.2010, seeking possession of the suit schedule property by the landlord. Unsustainable contentions are raised by the appellant/defendant No.6 denying the ownership of the respondent No.1/plaintiff over the cellar portion of the suit schedule property.
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14) Under these circumstances, the Court below while dealing with the above aspects, considered the oral and documentary evidence adduced by both sides and arrived at a just conclusion. For the aforementioned reasons, both the points are answered against the appellant/defendant No.6 and in favour of the respondent No.1/plaintiff.
15) POINT Nos.3 and 4: There is a valid termination of tenancy under Ex.A.2-legal notice dated 04.02.2010 to deliver possession of the suit schedule property consisting of cellar and ground floor premises by 31.03.2010. The respondent No.1/ plaintiff claimed total mesne profits of Rs.8,40,000/- from the defendants for the unauthorised use and occupation of the subject premises from 01.04.2010 till the filing of the suit @ Rs.40,000/- per month. The Court below while calculating the mesne profits, considered the payment of Rs.1,51,000/- and Rs.1,05,840/- made by the defendant No.1 to the plaintiff and was pleased to award an amount of Rs.5,82,960/- towards mesne profits and damages to the respondent No.1/plaintiff and future mesne profits @ Rs.40,000/- per month from the date of suit till the date of eviction of the suit premises. Since the suit schedule property is located in a commercial area and is in unauthorised occupation of the appellant/defendant No.6 and defendant No.5, the Court below is justified in awarding the difference of mesne profits, damages and future mesne profits as indicated in the impugned judgment and decree.
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16) In view of the facts and circumstances of the case, the Court below is justified in passing the impugned judgment and decree. The findings recorded by the Court below are based on oral and documentary evidence on record. There is nothing to take a different view. The appeal is devoid of merits and is liable to be dismissed.
17) In the result, the appeal is dismissed, confirming the judgment and decree dated 22.03.2016 passed in O.S.No.107 of 2012 by the VII Senior Civil Judge, City Civil Court, Hyderabad. No order as to costs.
Miscellaneous Petitions, if any, pending in this Appeal shall stand closed.
___________________ Dr. SHAMEEM AKTHER,J Date: 20th December, 2019 scs