Karnataka High Court
Associated Traders And Engineers ... vs J. Nagaraj And Ors. on 5 July, 2005
Equivalent citations: ILR2005KAR3383, 2005(5)KARLJ78
Author: V. Gopala Gowda
Bench: V. Gopala Gowda
JUDGMENT V. Gopala Gowda, J.
1. The Appellants were defendants and respondents were plaintiffs in the Trial Court. For the sake of convenience they are referred to as such.
2. The plaintiffs filed suit in O.S. No. 876/2004 against the defendants for ejectment and for future mesne profits. The defendants opposed the suit, denied the plaint averments and prayed for dismissal of the suit. The suit went for trial. Parties adduced evidence and produced documents in support of their respective case. Upon appreciation of the material placed on record, the trial Court by its judgment under appeal decreed the suit directing the defendants to vacate and deliver vacant possession of the suit schedule premises and directing enquiry regarding future mesne profits. Questioning the legality and correctness of the same, the defendants have filed this appeal.
3. The defendants took a stand on the basis of admission of PW-1 that they are not the owners but their mother is given life interest under the Will executed by their father in respect of the suit schedule premises. Therefore, it was contended that plaintiffs have no locus standi either to issue the quit notice or file the suit for ejectment. It is also contended that plaintiffs mother has not issued legal notice terminating the tenancy as required under Section 106 of Transfer of Property Act. This is a legal point which can be raised in the appeal. In this regard, learned counsel for the defendants relied upon the decisions reported in J.C. Chatterjee v. Shrisrikishan Tandon, and Ram Charan Mowar v. Ved Prakash, . The stand taken by the defendants is wholly untenable and liable to be rejected. The reason is, in the judgment of the trial Court at paragraph 7 the stand taken by the defendants in the written statement is referred to as under:
"...It is the case of the defendants in their written statement that originally they were the tenants under the father of the plaintiffs in respect of the suit schedule property and after his death, the plaintiffs have succeeded to the suit schedule property and a fresh lease deed came to be entered between the plaintiffs and the defendants in the year 1989 and finally under the lease deed dated 10.8.2001...."
Considering the above stand of the defendants, the trial Court held as under:
"... from the facts and circumstances of the case and by the conduct of the plaintiffs in receiving rent after the death of their father from the defendants and renewing the lease from time to time, and in view of the clear admission of the defendants in their written statement that after the death of the father of the plaintiffs, the plaintiffs succeeded to the suit schedule property and that they renewed the lease by executing lease deed, it has to be held that there is no dispute between the plaintiffs and the defendants that the defendants are the tenants under the plaintiffs in respect of the suit schedule property...."
In view of this clear finding of fact recorded by the trial Court, the decisions pressed into service by the learned counsel for the defendants are of no assistance to them and they are inapplicable to the fact situation. Therefore, the stand taken by the defendants in this regard is rejected.
4. In view of the law laid down in , , , and the contention urged by the defendants counsel that without impleading plaintiffs mother and she having got issued termination notice to the defendants, the suit is not maintainable is wholly unjustified in law. Hence the contention urged is rejected.
5. The further stand taken by the defendants is that their admission as tenants under the plaintiffs is not conclusive and the weakness of the defendants cannot be used as trump card by the plaintiffs. In this regard, the learned counsel for the defendants cited the decision reported in K. Gopala Reddy v. Suryanarayana, 2004(1) KCCR 662. This contention is also liable to be rejected.
6. The defendants cannot retract from their admission. They have paid rents to the plaintiffs. They have even not cared to reply to the legal notice issued by the plaintiffs. Obviously, they knew that plaintiffs are the owners or co-owners.
The Trial Court in paragraph 3 of the judgment has stated as under:
"... In the written statement they have admitted the relationship of landlord and tenant between the plaintiff require the suit schedule property for their bonafide use and occupation. It is contended further that their tenancy is still subsisting...."
Therefore, the defendants are estoped from taking contrary pleas against admitted position. The decision of the Apex Court relied upon by them in this regard is mis-placed.
7. The plaintiffs have validly terminated the tenancy of the defendants by issuing legal notice as per Ex.P-1 dated 22-12-2003. Exs. P2 and P3 are the postal acknowledgments for having served the notices. The defendants neither replied to the notice nor compiled with the demand made. Therefore, the trial Court has rightly held that the possession of the defendants is illegal and unauthorized. Consequently, mesne profits was ordered. The judgment of the Trial Court is supported by valid and cogent reasons. Learned Counsel for the defendants is unable to point-out that the same warrants interference. The appeal is devoid of merit and liable to be dismissed.
8. Accordingly, the appeal is dismissed. The defendants are granted six months time to vacate and deliver vacant possession of the suit schedule premises to the plaintiffs. Time is granted subject to the condition that defendants shall file an Affidavit undertaking to pay the occupancy charges regularly; the same will have to be deducted out of mesne profits that would be awarded; that they will not induct any other person into the premises and that they will vacate and deliver possession voluntarily before the stipulated period.