Karnataka High Court
Jodharam, S/O Ranaji Ramji vs Smt. Jagnmathamma, W/O Late S. ... on 29 November, 2006
Equivalent citations: ILR2007KAR379, AIR 2007 (NOC) 718 (KAR.) = 2007 (1) AIR KAR R 663, 2007 (1) AIR KAR R 663, 2007 A I H C 1378, (2007) 1 RENCR 335, (2007) 2 CURCC 159, (2007) 2 KANT LJ 216, (2007) 3 CIVLJ 140, (2007) 2 CIVILCOURTC 77, (2007) 3 ICC 302
Author: K. Bhakthavatsala
Bench: K. Bhakthavatsala
JUDGMENT K. Bhakthavatsala, J.
Page 0358
1. This is defendant's Appeal directed against judgment and decree dated 4.11.2003 made in RA No. 49/02 on the file of the Civil Judge (Sr. Divn.) at Hospet.
2. The brief facts of the case leading to the filing of the Appeal may he stated as under:
The respondent/plaintiff-widow fifed a Suit in OS No. 136/1999 against the appellant/defendant contending that after the demise of her husband-Sharana Basaiah, she became absolute owner of the suit premises and the defendant is the tenant in occupation of the suit premises on a monthly rent of Rs. 1,600/- and running a business in the name and style of M/s. Ramdev Fancy Stores. Initially, an agreement of tenancy for 11 months was entered in the year 1995-96. After the expiry of the said period, the plaintiff requested the defendant to vacate and deliver vacant possession of the suit premises. The defendant promised the plaintiff that he would vacate the suit premises after shifting his business to his own premises, but he failed to do so. The defendant kept on promising to vacate the same. Making false allegations, the defendant filed a Suit against the plaintiff in OS No. 223/1997 for injunction. The plaintiff filed a Suit in OS No. 55/1999 for recovery of arrears of rent from the defendant. The plaintiff got issued quit notice dated 27.3.1999, through an advocate, terminating the tenancy of the defendant, by RAPD as well as Under Certificate of Posting, calling upon him to vacate the suit schedule premises. The RPAD was returned with an endorsement that he was absent Hence, she filed a Suit for possession of the suit schedule premises.
The defendant entered appearance and filed written statement on 31.8.1999. The defendant has got his written statement amended twice and filed Page 0359 amended written statement on 3.1.2001 and 4.7.2002. The defendant has admitted rate of rent and tenancy. The contention of the defendant is that there is other co-owners viz., children of the plaintiff and they are also proper and necessary parties to the Suit and therefore the Suit is bad for non-joinder of necessary parties. It is averred that the defendant is using the front side small portion of the suit premises for business and the major portion is used for residential purpose. Since, standard rent is less than Rs. 100/- and the plinth area is less than 14 sq. meters in view of the Rent Act, 1999 (which came into force on 31.12.2001), the Suit for possession is not maintainable. It is contended that the notice of termination of tenancy was not served on the defendant. Further, the defendant never agreed to vacate the suit schedule premises. But, when the plaintiff attempted to dispossess the defendant forcibly, he filed a Suit in OS No. 223/1997. In so far as Suit in OS No. 55/1999 filed by the plaintiff for recovery of arrears of rent the defendant has contended that the plaintiff refused to receive the rents.
In view of the pleadings on record, the trial Court has framed as many as six issues and one additional issue as under.
(i) Whether the plaintiff proves that the Rent Karar is lapsed and the tenancy is terminated?
(ii) Whether the defendant proves that the suit premises is not for commercial purpose and suit is not maintainable?
(iii) Whether the defendant further proves that he has purchased the premises under an agreement of sale?
(iv) Whether the suit of plaintiff is hit by non-joinder of necessary party?
(v) Whether the plaintiff is entitled for relief of recovery of possession?
(vi) What decree or order?
Additional issue:
Does the defendant prove that there is no proper notice of termination of the tenancy and as such, the suit is not maintainable on that score?
In support of the case of the plaintiff, she got her examined as P.W-1 and got marked Exs.P-1 to P-18. During the course of cross-examination of P.W-1 the defendant got marked Ex.D-1. The Court Commissioner-K Jambanna has been examined as P.W-2 and marked Exs.P-19 to P-21. In rebuttal, the defendant has got him examined as D.W-1 besides examining two other witnesses.
The trial Court answered issue Nos. (i) to (v) in the negative and the additional issue in the affirmative and dismissed the Suit.
Feeling aggrieved of the judgment and decree of the trial Court, the plaintiff filed Appeal in RA No. 49/2002 on the file of Civil Judge (Sr. Divn.) at Hospet. After hearing arguments, the learned Judge of the lower Appellate Court formulated the following points for his consideration:
(i) Whether there is a proper termination of tenancy?
(ii) Whether suit is bad for non-joinder of necessary parties?
(iii) Whether impugned judgment and decree requires any interference?
(iv) What order?
Page 0360 The lower Appellate answered points Nos. (i) to (iii) in the affirmative in favour of the plaintiff and allowed the appeal and decreed the Suit in OS No. 136/1999 directing the defendant to hand over vacant possession of the suit premises to the plaintiff. This is impugned in this appeal.
3. The learned Single Judge of this Court has admitted the Appeal to consider the following substantial questions of law:
(i) Whether the 1st Appellate Court was justified in reversing the finding of the trial Court and granting an order of ejectment by giving a finding that the tenancy had been terminated, in accordance with law. Having regard to the contents of Ex.P-8, the notice sent by registered post, which has been returned with an endorsement "addressee continuously absent for 7 days"? and
(ii) Whether the judgment and decree passed by the 1st Appellate Court is perverse and arbitrary, being contrary to the material on record and for non-consideration of the reasons given by the trial Court?
4. Sri Jayavittal Rao Kolar, learned Senior Counsel, appearing for the appellant/defendant submitted that:
(i) the quit notice sent by RPAD was returned un-served and therefore there was no service of notice;
(ii) the quit notice sent under certificate of posting does not evidence the fact of delivery of postal article to the addressee even though the address given on the postal article is correct;
(iii) the plaintiff was not entitled to seek possession of the suit premises as the co-owners were not made parties to the Suit, and thus the Suit was liable to be dismissed for non-joinder of necessary parties.
He cited a decision reported in 1995 AIHC 4395 (Chandrappa v. K. Subramanya and Anr.) on the point that certificate of posting merely evidences the fact of posting of a postal article but it does not evidence the fact of delivery of postal article to the addressee even though the address given on the postal article is correct. Another decision cited by him is (Nanalal Girdharlal and Anr. v. Gulamnabi Jamalbhai Motorwala and Ors.) on the point that a tenant can be evicted only by an action taken by all co-owners.
5. On the other hand Sri C.B. Srinivasan, learned Senior Counsel, appearing for the respondent/plaintiff, submitted that when the plaintiff filed a suit for recovery of arrears of rent the defendant did not raise his little finger as to the right of the plaintiff for recovery of rents and there is no illegality or infirmity in the impugned judgment.
6. In so far as the decisions cited by the learned Counsel for the appellant is concerned, he submitted that both the decisions cited by the learned Counsel for the appellant have no force in view of the law laid down by the Apex Court in the following cases:
(i) (Karnataka Public Service Commission v. P.S. Ramakrishna) on the point that the notice returned with endorsement Page 0361 'Not present. Hence returned to sender', is deemed to have been served.
(ii) 1999 SCC (Cri) 1284 (K. Bhaskaran v. Sankaran Vaidhyan Balan and Anr.) on the point when a notice is returned by the sendee as unclaimed such date would be the commencing date in reckoning the period of 15 days contemplated in Clause (c) to the proviso of Section 138 of the Act, without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address (vide paragraph No. 25).
(iii) (Basant Singh and Anr. v. Roman Catholic Mission) on the point where the summons are properly addressed, prepaid and duty sent by registered post with acknowledgment due, notwithstanding the fact that the acknowledgment having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of the issue of the summons, the Court shall presume that notice is duty served.
(iv) (Smt. Kanta Goel v. B.P. Pathak and Ors.), on the point that one co-heir of deceased landlord can sue for eviction in the absence of other coheirs who have no objection;
7. The first contention that there was no service of quit notice is concerned, it is necessary to refer to Ex.P-7/copy of quit notice dated 21.3.1998 sent under certificate of posting dated 24.3.1998 and under RPAD bearing No. 1073 (Ex.P8), which was returned un-served. The RPAD bears the address of the defendant as No. 260, 10th Ward, Main Bazar, Hospet. The RPAD cover (Ex.P-17) sent by the Court Commissioner/Advocate to the defendant also bears the same address. Ex.P-17 has been returned with an endorsement "addresee continuously absent for 7 days, hence returned to the sender". In nutshell, the address mentioned in Ex.P-8 and Ex.P-17 (Court Commissioner's RPAD cover) is one and the same.
8. The requirement under Section 106 of the Transfer of Property Act is that the quit notice has to be sent either by post to the party or delivered personally to such party. In the instant case, the plaintiff has discharged her obligation under Section 106 of Transfer of Property Act by sending the quit notice simultaneously on the same day and time by RPAD as well as under certificate of posting. If the defendant wantonly has not claimed RPAD, the plaintiff cannot be blamed.
9. In so far as the contention of non-joinder of parties is concerned, the Hon'ble Supreme Court, while dealing with the Delhi Rent Control Act 1958, in Smt. Kanta Goel's case vide , supra, has held that one co-heir of the deceased landlord can sue for eviction in the absence of other co-heirs, who have no objection. In the above said case the Apex Court had followed the ratio laid down in the case of Sri Ram Pasriha v. Jagannath, Page 0362 that "a co-owner is as much as owner of the entire property as any sole owner of the property is". The ratio laid down is applicable on all the fours to a suit for possession under Transfer of Property Act. The Allahabad High Court in the decision (Girraj Kishore v. Dr. Trilokinath Vimal), followed the decision , supra, and held that one of the co-owners is competent to serve notice terminating tenancy and competent to maintain a Suit under Section 106 of the Transfer of Property Act Hence, the second contention of the appellant also falls to the ground.
10. I see no illegality or infirmity in the impugned judgment. The decisions cited by the learned senior counsel for the appellant are of no avail. On the other hand, the decisions cited by learned senior counsel for the respondent/plaintiff support the case of the plaintiff. The substantial questions of law are answered in favour of the plaintiff and against the appellant/defendant.
11. In the result, the Appeal fails and the same is hereby dismissed with costs. The appellant/defendant is directed to vacate and deliver vacant possession of the suit schedule premises to the respondent/plaintiff, within 2 months from today.