Andhra Pradesh High Court - Amravati
M/S. Natraj Electricals, Vijayawada vs P. Venkateswara Sarma on 23 November, 2022
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
SECOND APPEAL No.1197 of 2013
JUDGMENT:
A tenant is grief-stricken as it has been ordered to vacate the demised premises by both the Courts below and therefore, it appeals to this Court under Section 100 C.P.C.
2. A learned judge of this Court, on 13.12.2013 admitted the second appeal on the following substantial questions of law:
A. Whether the suit could have been filed by the plaintiff who is one of the sons of the land lady (Durga Suseelamma) during her lifetime without pleading in the plaint as to how the plaintiff has become the owner and whether the defendant/tenant can be evicted from the demised premises at the instance of the plaintiff in the absence of quit notice by land lady and consequently whether the decree and judgment of trial Court and appellate Court are liable to be set aside?
B. Whether payment of rent to the plaintiff as agent of the land lady can confer any right to sue the defendant for eviction?
C. Assuming that the quit notice issued by the plaintiff is valid, whether the acceptance of monthly rents for 7 months after issuance of quit notice would not amount to waiver and whether institution of suit subsequently is permissible under law?
D. Whether the Partition List marked as Ex.A.21 would entitle the plaintiff to institute the suit, when it is 2 Dr. VRKS, J S.A.No.1197 of 2013 unregistered and not proved by examination of other members of the family and the attestors mentioned therein?
E. Whether the Courts below are justified in decreeing the suit, which was filed basing on the quit notice under Section 106 of T.P. Act, when the said notice is defective and not valid in the eye of law, as the plaintiff received rents even after issuance of quit notice without any protest which leads waiver of said notice?
F. Whether the findings of the Courts below are perverse, as they have not properly appreciated the evidence on record and the said findings are more improbable and contra to the evidence on record?
3. Respondent in this appeal is the plaintiff. The demised premises is ground floor of the portion situated at Door No.11- 25-79, Samarangam Chowk, Vijayawada being bounded by East : Property under the occupation of plaintiff West : Main Road, Samarangam Chowk.
North : Sri Vijaya Durga Towers.
South : Property of late Patiballa Ramakrishna Rao
4. On 01.12.2009 plaintiff filed O.S.No.1430 of 2009 before learned III Additional Senior Civil Judge, Vijayawada seeking for eviction of the defendant from the plaint schedule premises and claimed damages at the rate of Rs.40,000/- per month till the 3 Dr. VRKS, J S.A.No.1197 of 2013 time the premises is handed over. In the plaint, it is claimed that the plaintiff owns the plaint schedule property and it was leased out to the defendant for the purpose of business of the defendant and the tenancy is month to month and by the time the suit was laid, the rent per month was Rs.11,600/-. It is averred that defendant informed the plaintiff that they were shifting their business to another premises and they would vacate the suit schedule property by the end of September, 2009. Despite that, they did not vacate the premises and the plaintiff had come to know that in fact defendant purchased new premises also. In those circumstances, plaintiff issued a notice under Section 106 of the Transfer of Property Act, 1882 terminating the tenancy by 30.11.2009. Defendant received it. On 21.11.2009 it got issued a reply notice with false allegations. It is in these circumstances this suit.
5. It is to be seen that defendant is a partnership firm and in the cause tile of the plaint, it is mentioned that this partnership firm is represented by a partner by name Smt. P.Jhansi Rani.
6. The said Smt. P.Jhansi Rani filed a written statement for defendant, whereunder it denied the ownership claimed by the plaintiff and stated that the plaintiff's mother Smt. P.Durga 4 Dr. VRKS, J S.A.No.1197 of 2013 Suseelamma is the owner of the property and it is from her they obtained the demised premises on lease and the lease is for 30 years and at the inception rent per month was Rs.2,125/- and it has been raised periodically and now the rent is Rs.11,600/- by its latest enhancement in July, 2009. The notice issued terminating the tenancy is invalid since it was not issued by the landlady. Smt. P.Jhansi Rani is not the one who is looking after the business, but it is Sri M.Krishana Mohan Rao who is another partner who is looking after the business of the defendant partnership firm and no notice was served on him and therefore, the suit is invalid. Issuing a quit notice subsequent to enhancement of rent speaks of mala fides. At the request of the landlady, rents are being paid to the plaintiff. Plaintiff having developed eyesore filed this false suit. For these reasons, the defendant/tenant prayed for dismissal of the suit with costs. On these rival pleadings, the learned Senior Civil Judge framed the following issues and additional issues for trial:
"1. Whether the quit notice dt. 04.11.2009 is valid quit notice?
2. Whether the plaintiff is entitled to evict the defendant from the plaint schedule property as prayed for?5
Dr. VRKS, J S.A.No.1197 of 2013
3. Whether the plaintiff is entitled for damages as prayed for?
4. To what relief?
Additional issues:
1. Whether the plaintiff got locus standi to file this suit?
2. Whether this suit is bad for non-joinder of necessary parties?
3. Whether this plaintiff waived his right to evict the defendant from the plaint schedule property?"
7. At the trial, plaintiff testified as PW.1 and got marked Exs.A.1 to A.21. One of the partners of the defendant partnership firm DW.1/Sri M.Krishna Mohan Rao testified and got marked Exs.B.1 to B.16.
8. On considering the evidence on record and the submissions made by both sides, learned trial Court found truth in the case of the plaintiff and it granted eviction and gave liberty to plaintiff to move separate application for assessment of future damages in the following terms:
"9. In the result, the suit is decreed with costs directing the defendant to vacate the premises within three months from the date of order failing which the plaintiff is at liberty to evict the defendant under due process of law by 6 Dr. VRKS, J S.A.No.1197 of 2013 filing of execution petition. The plaintiff is at liberty to file separate application for ascertainment of future damages from the date of filing of the suit till the date of eviction."
9. The dissatisfied tenant exercised the statutory right of first appeal in A.S.No.9 of 2012 impugning the trial Court's judgment. Learned XIII Additional District Judge, Vijayawada heard this appeal and framed the following points for its consideration:
1. Whether the plaintiff is the owner of suit schedule premises?
2. Whether the plaintiff let out the suit schedule premises to defendant or his mother Durga Suseelamma?
3. Whether plaintiff is having locus standi to file the present suit?
4. Whether the lease of plaint schedule premises is month to month or otherwise?
5. Whether the defendant paid advance amount of Rs.1,50,000/- as goodwill to landlady or plaintiff?
6. Whether the quit notice dt.4.11.2009 issued by plaintiff is valid under law?
7. Whether the suit of plaintiff is bad for non joinder of necessary parties?
8. Whether the plaintiff waived the quit notice dt.4.11.2009?7
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9. Whether dismissal of I.A.1141 of 2011 by trial Court on 15.09.2011 is justifiable?
10. Whether defendant is liable for eviction from suit schedule premises?
11. Whether plaintiff is entitled for damages for use and occupation of suit schedule property after quit notice?
12. Whether there are grounds to interfere with findings of trial Court?
13. To what is the result?
10. After a detailed assessment of the evidence and after complete analysis of arguments on both sides and after citing law and precedent, the learned first appellate Court concurred with the findings and conclusions reached by the trial Court and confirmed the impugned judgment and dismissed the first appeal with costs. It is thereafter, the tenant has come up with this second appeal.
11. Learned counsel on both sides submitted arguments.
12. Learned counsel for respondent/landlord/plaintiff filed written arguments and cited legal authorities.
13. Before adverting to the grounds in this second appeal, a few aspects need to be noted here. The pleadings and evidence on both sides indicated that for commercial purpose, the 8 Dr. VRKS, J S.A.No.1197 of 2013 demised premises is being used by the tenant. The tenant is a registered partnership firm evidenced by Ex.B.16 and it consists of two partners. One is Smt. P.Jhansi Rani and the other is Sri M.Krishna Mohan Rao/DW.1. The lease seems to have commenced somewhere in the year 1987 or 1988 (both sides did not put forth the accurate date of commencement of lease). That it being an oral lease and a lease is not by a written lease deed, it is deemed to have been a lease from month to month. The first appellate Court, in this regard gave a definite finding after quoting the law laid down in Food Corporation of India v. Babulal Agarwal1. By 2017 or 2018 even the claimed 30 years of lease expired. As against these aspects, no contentions are raised in this second appeal. The tenant is admittedly a registered partnership firm and notice of termination of tenancy was issued to the defendant and was received by one of the partners Smt. P.Jhansi Rani and a reply notice was also sent. On the question of receipt of notice of termination under Section 106 of the Transfer of Property Act, both the Courts below gave appropriate finding and that is not challenged in this appeal. Learned first appellate Court stated that suing the partnership 1 (2004) 2 SCC 712 9 Dr. VRKS, J S.A.No.1197 of 2013 firm is suing all the partners and showing all the partners in the cause title is not required under law as per the ratio in Shew Karan Agarwalla v. Satyanarain Manshinka2. On this aspect of the matter also, no further contentions are raised in this appeal.
14. Learned Senior Counsel appearing for the appellant/ tenant submits that termination of tenancy is normally sought for by the landlords when there is default in payment of rent, when there is unauthorized subtenancy, when the tenant indulges in acts of waste, when the landlord finds the need to obtain the premises for personal use and occupation etc. But in the case at hand, none of them is there and the landlord had taken a curious plea that the tenant obtained another premises and therefore, he should vacate the premises.
15. As against this, learned counsel for respondent/landlord submits that in a suit for ejectment existence of a valid quit notice is enough and the reasons for issuing a quit notice and the purpose for which the landlord desired the premises is unnecessary.
2 AIR 1978 Cal 495 10 Dr. VRKS, J S.A.No.1197 of 2013
16. In support of the substantial questions of law raised in this appeal, both sides put forth their arguments. They shall be considered now one after one.
17. Point Nos.A to F:
Learned Senior Counsel for appellant submits that respondent/plaintiff is not the landlord but his mother is the landlady from whom the premises was obtained and with whom the tenancy was entered into. Therefore, it is she who was competent to sue but not her son/respondent. As against this, learned counsel for respondent submits that it is the respondent who has been the landlord and that is to the knowledge of the tenant and the plea put forth is against facts on record and is against the evidence and is against the findings of Courts below.
18. Having gone through the entire material on record, one would notice that originally this property came to be owned by Sri P.Satyanarayana Murthy under the original of Ex.A.20 registered sale deed dated 30.01.1961. The evidence is that he died survived by his wife and a few children including the respondent/plaintiff. To this extent there is evidence and 11 Dr. VRKS, J S.A.No.1197 of 2013 findings of the Courts below as over which never there has been no contest raised by the tenant all throughout. If the matter stands there, one point that comes up from the facts is that the property was taken on lease by the appellant and that according to the tenant, it was obtained from one of the sharers i.e., the mother of the plaintiff. Now that the deceased person's son, who is one of the co-sharers, sued the tenant for eviction. DW.1 in his cross-examination stated that he had seen the written acknowledgments of siblings of plaintiff stating that plaintiff is the owner of this property. Now on these aspects when there is no dispute, the question is whether one of the co-owners or co- landlords is capable of suing for eviction of a tenant. In Kanta Goel v. B.P.Pathak3, the Hon'ble Supreme Court of India held that the law has been beyond doubt that the absence of some of the co-owners does not in the least disentitle another co-owner from suing and succeeding in proceeding for the eviction of a tenant. Therefore, even if the entire case set up by the tenant is correct that it obtained the lease from the mother of the plaintiff, the legal efficacy of the plaintiff being one of the admitted co-owners/co-landlords the maintainability of the suit 3 AIR 1977 SC 1599 12 Dr. VRKS, J S.A.No.1197 of 2013 is in accordance with law. Therefore, the Courts below on considering the legal eligibility of the plaintiff allowed his prayer and that cannot be found fault with. However, it has to be stated that on the above proposition, there were no arguments advanced in the Courts below or here. But the aspect is argued in the light of some more facts that were brought on record. Plaintiff filed Ex.A.21 which is a copy of partition list dated 27.05.1986. On evidence both the Courts below stated that there was an earlier partition and in pursuance of that earlier oral partition, this partition list was made and as per that partition and the partition list the demised premises fell to the share of the plaintiff. It was on such factual observations, both the Courts below held that plaintiff was the landlord. It is this plaintiff, who got issued Ex.A.1 quit notice dated 04.11.2009, whereunder he terminated the oral tenancy between the parties which was to come into effect by 30.11.2009 and since by that last date tenant did not vacate the premises, the landlord sued the tenant on the next date which was 01.12.2009. Both the Courts below held that the tenant having pleaded that Smt. Durga Suseelamma is the owner of the property failed to produce any cogent evidence. Both the Courts below further 13 Dr. VRKS, J S.A.No.1197 of 2013 referred to the evidence of the tenant/DW.1 and stated that even by tenant's own showing in the form of Exs.B.2 to B.15 ledger extracts the tenant has been paying rents by way of cheques to this very plaintiff. It is on this evidence the Courts below negatived the tenant's contentions. Thus, the findings were recorded based on appreciation of evidence and the findings were made only based on evidence and not on consideration of anything that was not part of the record. The first appellate Court is the final arbiter of facts. Unless any perversity is shown, this Court sitting in second appeal is not permitted to disturb those findings. The tenant continuing its submissions that Smt. Durga Suseelamma is the landlady really cannot be considered since the facts were found against such contention. Even otherwise on a careful reading of the entire material on record one could easily say that the tenant has assumed that Smt. Durga Suseelamma is the landlady. The evidence does not indicate that the tenant made any enquiries to know who was the owner of the premises by the time it occupied the premises as a tenant. The evidence of PW.1 and the evidence of DW.1 would only show that the discussions for tenancy took place with the eldest of the family members by 14 Dr. VRKS, J S.A.No.1197 of 2013 name Smt. Durga Suseelamma while this plaintiff was by the side of his own mother when those discussions took place. Now that one would have to see whether a tenant by merely having discussion with a woman could conclude that it is that woman who is the landlady. For its presupposition there should have been some reasonable cause and that is completely absent as is evident from the omission of necessary averments in the written statement and necessary evidence coming forth from DW.1. Thus, raising the same contention even in the second appeal despite the well considered findings of the Courts below is nothing less than vexatious. The plaintiff having claimed in the plaint that he is the landlord was forced to establish his title by production of Ex.A.20 sale deed of his father and Ex.A.21 partition list and then filed Exs.A.5 to A.18, which include mutation of entries and tax payments and filing of income tax returns by the plaintiff indicating receipt of rents from the tenant. It is in these circumstances, this Court finds that when the plaintiff got issued Ex.A.1 quit notice, it is valid as he got issued it in his own authority as a landlord. He being a landlord when he was receiving rents in his own status and not as an agent of his mother, the suit being instituted on the next 15 Dr. VRKS, J S.A.No.1197 of 2013 day after the expiry of period granted in the quit notice, the lease stood validly terminated by 30.11.2009. A dutiful tenant ought to have vacated the premises, but it did not do so and it hung on to the possession. After filing of the suit, as per the evidence of PW.1 and DW.1, the tenant paid money and the landlord received it. By his quit notice and by filing the suit, the landlord made crystal clear his intention to seek eviction of the tenant. Merely because he received rents after filing of the suit does not mean that he waived his rights. Evidence of PW.1 is that he received rents under protest. That was disputed before the Courts below but both the Courts below held that whatever payment that was received by plaintiff could not disentitle him from pursuing his legal remedy. It has to be noted that the tenant even by its own showing through its ledgers and through the sworn evidence of DW.1 showed that it was not paying rents to its supposed landlady Smt. Durga Suseelamma and it was paying rents to a person/plaintiff, is who according to it is not a landlord. If matter is viewed in that perspective whatever paid to plaintiff by the defendant cannot be called as rent since according to the own line of defence plaintiff was not the person to receive the rents as he was not the landlord according to the 16 Dr. VRKS, J S.A.No.1197 of 2013 tenant. In other words, tenant is paying rents for nine years to plaintiff and when the plaintiff asks to vacate the premises it speaks otherwise. If really the tenant was in confusion as to who was the landlord, it ought to have pursued an interpleader suit but it did not do so. DW.1 admitted that he never issued a notice to its supposed landlady Smt. Durga Suseelamma informing her about the quit notice it received not from her but from her son. It does nothing and raises all frivolous pleas here. Learned Senior Counsel for appellant submits that Smt. Durga Suseelamma is an important witness and plaintiff did not examine her and therefore, suppressed material evidence. This argument holds no strength since Smt. Durga Suseelamma is never the landlady by the time of suit, according to the plaintiff. Law does not expect the plaintiff to examine everybody else in the world to say that they are not the owners of the property. As long as the plaintiff was able to show truth of his own contention of ownership through various documents his burden was discharged. Therefore, there is no legal occasion to say that the plaintiff withheld any relevant evidence. In fact in the trial Court the tenant while arguing the matter halted there and sought summons to examine Smt. Durga Suseelamma as 17 Dr. VRKS, J S.A.No.1197 of 2013 witness on his behalf and that was turned down by the trial Court and in the revision filed by the tenant it met the defeat by the orders of this Court in C.R.P.No.4266 of 2011 dated 20.10.2011. In the light of these facts and circumstances, the contention of the learned Senior Counsel about plaintiff withholding material evidence is incorrect. About non- registration of Ex.A.21 though a ground is urged, the same is not pursued by the learned Senior Counsel on realizing the fact that learned first appellate Court gave elaborate reasons as to why it did not require registration vide page No.7.
19. In the light of the above discussion, the various legal authorities cited by the respondent/landlord in its written arguments about res judicata about Section 105 C.P.C. do not call for any more discussion. For the reasons stated above, this Court finds that on appreciation of evidence appropriate findings were arrived at and proper conclusions were reached by both the Courts below and strictly speaking no substantial question of law has arisen between the parties in the given facts. For this reason, all the above points are answered against the appellant.
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20. For the reasons stated above, this Second Appeal is dismissed confirming the judgment dated 24.09.2013 of learned XIII Additional District Judge, Krishna at Vijayawada in A.S.No.9 of 2012. Considering the fact that the demised premises is being used for running business and also considering the fact that since 2009 starting from the trial Court this litigation has come to its termination at this Court in the year 2022, the tenant is granted time to vacate the leasehold premises on or before 31.12.2022. Appellant shall bear its own costs and shall pay the costs to the respondent in this appeal.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 23.11.2022 Ivd 19 Dr. VRKS, J S.A.No.1197 of 2013 THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR SECOND APPEAL No.1197 of 2013 Date: 23.11.2022 Ivd