Bangalore District Court
Mr. D.Syed Noorul Hasan vs Mr. V.P.K. Haji on 13 January, 2021
SCCH-21 SC-15344/18
IN THE COURT OF THE XVII ADDL. JUDGE, COURT OF
SMALL CAUSES &
ADDL. CHIEF METROPOLITAN MAGISTRATE,
MAYO HALL UNIT, BENGALURU (SCCH21).
Dated: This the 13th Day of January 2021
PRESENT: Smt. VANI A. SHETTY, B.A. Law L.L.B,
XVII ADDL. JUDGE, Court of Small Causes
& ACMM, Bengaluru.
S.C. No.15344/2018
PLAINTIFF/S : 1. Mr. D.Syed Noorul Hasan,
Aged 67 years,
S/o. Late Mr. D. Syed Abbas,
2. Mrs. Mallika Begum,
Aged Major,
W/o. Late Mr. D. Syed Abbas,
Both residing at
No.168, Armstrong Road,
Shivajinagar, Bangalore1.
(By Sri. Meheter M. Azzam, Advocate)
V/s.
DEFENDANT/S : 1. Mr. V.P.K. Haji,
Aged 83 years,
S/o. Late Mr. V.P.P.Haji (Deleted)
2. Mr. Mohammed Ali,
Aged 50 years,
S/o. Late Mr.K. Fareed Haji,
No.177, Dharma Raja Koil Street,
Bangalore - 1.
(By Sri. Abdul Salam N.K., Advocate)
SCCH-21 2 S.C. No.15344/18
Date of institution of the : 07.12.2018
suit
Nature of the suit : Ejectment, arrears of rent and
damages
Date of commencement of : 08.04.2019
recording of the evidence
Date on which the : 13.01.2021
Judgment
was pronounced
Duration of the suit Year/s Month/s A Day/s
02 01 05
JUDGEMENT
The present suit is filed by the plaintiffs for ejectment, for arrears of rent amounting to Rs.57,600/ and for recovery of damages in respect of suit schedule property.
2. The case of the plaintiff in brief as follows:
The plaintiffs are the owners of the suit schedule property i.e., consisting of a shop measuring 10 x 11 feet in the property bearing No.177, situated at Dharma Raja Koil Street, Bengaluru1 and defendants are the joint tenants under them in respect of the suit schedule property on a monthly rent of Rs.4,100/. It is stated that the defendants not remitted the rents from September 2017. The plaintiffs have further stated that they were intended to renovate the suit schedule property and hence, requested the defendants several times to vacate the same. As the defendants not vacated the suit schedule property, the plaintiffs got issued legal notice on 14.03.2018 terminating the tenancy. But, the SCCH-21 3 S.C. No.15344/18 defendants issued untenable reply and not vacated the suit schedule property. The defendants are in due of arrears of rent of Rs.28,800/ from 25.09.2017 to 24.04.2018. The plaintiffs have further stated that after the termination of tenancy, defendants are in unlawful possession of the suit schedule property and hence, liable to pay damages @ Rs. 60,000/ per month from the date of the suit till its recovery. Hence, the plaintiffs have filed the present suit.
3. On service of summons, defendant No.2 entered his appearance through his learned counsel and filed his written statement. Learned counsel appearing for the plaintiffs filed a memo on 19.02.2019 and sought for deletion of the first defendant from the suit as he was dead and accordingly, first defendant was deleted from the suit.
4. In the written statement, defendant No.2 has admitted that he is the tenant in the respect of the suit schedule property on paying monthly rent of Rs.4,100/. But, he has denied the ownership of the the plaintiffs in respect of the suit schedule property. He has contended that after the expiry of lease agreement dated 25.01.1998, it has not been renewed and hence, the termination of tenancy does not arise. It is his contention that instead of bringing the legal representatives of the first defendant on record, deleting him from the suit is not proper and correct. It is further contended that he has sent D.D. in favor of the first plaintiff for Rs.24,600/ and the plaintiffs have returned the said D.D. and therefore, he is not liable to pay the arrears of rent.
SCCH-21 4 S.C. No.15344/18Hence on all these grounds, he sought for dismissal of the suit.
5. In order to prove the case, first plaintiff got examined himself as PW.1 and got marked Ex.P1 to Ex.P7 documents. On the other hand, defendant No.2 got examined himself as DW.1 and got examined one witness as DW.2 and got marked Ex.D1 to D7 documents.
6. Heard the arguments.
7. The points that arise for my consideration are;
1) Whether the plaintiffs in the capacity as a landlords can maintain a suit for ejectment without title?
2) Whether plaintiffs have proved that the defendant No.2 is tenant under them in respect of suit schedule property?
3) Whether the defendant No.2 has proved that after the death of Mr. V.P.K. Haji, along with him the legal representatives of said V.P.K. Haji are also tenants in respect of the suit schedule property?
4) Whether the plaintiffs proved that the defendant No.2 is liable to pay arrears of rent amounting to Rs.57,600/ in respect of suit schedule property?
5) Whether the plaintiffs proved the termination of tenancy in respect of suit schedule property?
SCCH-21 5 S.C. No.15344/186) Whether the plaintiffs are entitled for mesne profits @ Rs.60,000/ per month from the date of the suit till handing over of the vacant possession of suit schedule property?
7) Whether the plaintiffs are entitled for the delivery of vacant possession of the suit schedule property?
8) What order or decree?
8. My answer to the above points is:
Point No.1 : In the Affirmative, Point No.2 : In the Affirmative, Point No.3 : In the Negative, Point No.4 : In the Affirmative, Point No.5 : In the Affirmative, Point No.6 : Partly in the Affirmative, Point No.7 : In the Affirmative, Point No.8 : As per the final order for the following:
REASONS
9. POINTS NO.1 and 2: The plaintiffs have instituted the suit stating that they are the owners and also landlords in respect of suit schedule property and they have let out the suit schedule property to the defendants as joint tenants for rent of Rs.4,100/ p.m. The defendant No.2 has admitted that he is tenant in respect of suit schedule property under the plaintiffs by paying monthly rent of Rs.4,100/. But, he has denied the title of the plaintiffs in respect of suit schedule property.
SCCH-21 6 S.C. No.15344/1810. In the present case, the plaintiffs have not sought for the declaration of the title of the suit schedule property. The relief sought is only for ejectment, recovery of arrears of rent and mesne profits. Therefore, the question for determination is, if the plaintiffs are able to prove that they are the landlords of the suit schedule property, they can maintain a suit for the reliefs sought by them.
11. The word landlord is not defined in the Transfer of Property Act. When the meaning of a word is not defined in particular Act, the court can ascertain the meaning of that word by definition provided to that word in other similar Acts. The Karnataka Rent Act, 1999 is a state act enacted to protect the interest of some category of tenants. Section 3(e) of the Karnataka Rent Act, 1999, defines the word landlord as hereunder:
"Landlord" means a person who for the time being is receiving or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of or for the benefit of any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or to be entitled to receive the rent, if the premises were let to a tenant.
As per the above definition, the landlord need not be a owner and he must be a person who for the time being is entitle to receive the rent. The meaning of the word landlord has also come up for consideration before the Hon'ble Supreme Court before the constitution bench of Hon'ble Supreme Court rendered in M/s. Raval and company Vs K.G.Ramachandran and others (AIR 1974 SC 818). In the SCCH-21 7 S.C. No.15344/18 said decision, the Hon'ble Supreme Court referring to its earlier judicial pronouncements held that the word landlord shall be interpreted in a limited sense to refer only to a landlord who has terminated the tenancy of the tenant and does not include a contractual landlord. Therefore, the landlord need not be the titleholder of the tenanted property.
12. Section 5 of the Specific Relief Act, 1963, provides for source of power to recover the immovable property. As per section 5 of the Specific Relief Act, 1963, a person entitled to the possession of specific immovable property can recover it. Therefore, even as per section 5 of the Specific relief Act, 1963, the person who is entitled to possession can recover the same. Said section also does not contemplate that only the owner is entitled to recover the possession. Section 6 of the said Act recognizes the right of a person who is dispossessed from the immovable property without his consent. It also does not say that a person without title cannot recover the immovable property. Article 64 of Limitation Act, 1963 also recognizes the right of a person to recover the possession of immovable property even without the title. The word ejectment is not defined either in the Transfer of Property Act, 1882, or in any other Act. The dictionary meaning of the word ejectment is the mixed action at common law to recover the possession of land, damages and costs for the wrongful withholding of the land. Therefore, on survey of all the existing laws on the subject makes it clear that the landlord need not be the owner of the property. If he is entitled for the possession of immovable property either on the basis of the previous possession or in the SCCH-21 8 S.C. No.15344/18 capacity of the landlord can recover the possession from the tenant.
13. In view of the above discussion, though the plaintiffs have averred in the plaint that they are the owner of the suit schedule property, the reliefs sought by them were not on the basis of the title, but on the basis of their status as a landlord. The recovery of possession on the basis of the title is recognized in the Article 65 of Limitation Act, 1963. The plaintiffs have not pressed their claim on the title and therefore, title of the plaintiffs is inconsequential in the present suit and the relief sought by the plaintiffs does not fall under Article 65 of Limitation Act, 1963. The claim of the plaintiffs is purely based as a landlord and hence, the title is insignificant in the present proceedings. Therefore, I answer Points No.1 and 2 in the Affirmative.
14. POINT NO. 3: The defendant No.2 has contended that he along with Mr. V.P.K.Haji were joint tenants in respect of suit schedule property and after the death of said V.P.K.Haji, he along with his legal representatives are the tenants in respect of the suit schedule property. It is to be noted that the suit schedule property was let out in the year 1998 in favour of defendant No.2 and one Sri. V.P.K. Haji as per Ex.D7. It is brought on record that said V.P.K Haji died in the year 2002. The tenancy was a monthly tenancy. Admittedly, the tenancy was not continued thereafter by a fresh agreement. It is important to note that though the plaintiffs have not brought the legal representatives of the deceased V.P.K.Haji, the defendant No.2 himself examined SCCH-21 9 S.C. No.15344/18 the son of V.P.K.Haji as DW2. Though in his chief examination, he has taken up a contention that even now he and defendant No.2 are carrying out business jointly in the suit schedule property, in the cross examination, he has stated that his employee is working along with defendant No.2 in the suit schedule property. The relevant portion of cross of D.W2 is reproduced hereunder for ready reference:
ವದಯರರ ಕಳರಹಸದ ನನನಟಸಗ ಪ ಪತತ ರತತರವನರ
ನ
ನನಡರರವದಲ. 2 ನನ ಪ ಪತವದ ಮತ ತ ದವ ಸಸತತನಲ ವತಪರ
ಲ
ಮಡರತತದರರದರ ಸರಯಲಲ. ಸಕಯರ ನನನ ಸಸಪ 2 ನನ
ನ ತತರ.
ಪ ಪತವದಯರದಗ ದವ ಸಸತತನಲ ಕಲಸ ಮಡರತತದರ ಎನರ
15. The above elicitation made in the cross
examination indicates that legal representatives of V.P.K Haji are neither continued as tenants nor jointly carrying out the business in the suit schedule property. It is also important to note that though the son of V.P.K.Haji is fully aware of the suit and given evidence as DW.2, at no point of time, he sought for his impleadment as a party in the suit. The evidence of DW.2 itself shows that he is not interested to contest the suit or to claim the tenancy right in respect of suit schedule property. If he had continued as tenant along with defendant No.2 in respect of suit schedule property, certainly he would have requested the court to array him as a party to enable him to contest the case.
16. As pointed above, Mr.V.P.K.Haji died in the year 2002. There is no materials on record to show that the legal representatives of V.P.K.Haji exercised tenancy rights in anyway. It is relevant to refer Sec.5 of Karnataka Rent Act, SCCH-21 10 S.C. No.15344/18 1999, which prescribes in the event of death of a tenant, the right of tenancy shall devolve for a period of 5 years from the death of original tenant to his successors. The specific portion of Sec.5 of said Act is reproduced for ready reference.
"In the event of death of a tenant, the right of tenancy shall devolve for a period of five years from the date of his death to his successors"
On this ground also, the legal representatives of V.P.K,Haji cannot claim the tenancy right over suit schedule property. Therefore, defendant No.2 cannot take up a contention that after the death of Mr. V.P.K.Haji, he along with the legal representatives of said V.P.K.Haji are joint tenants in respect of suit schedule property. Accordingly, I answer Point No.3 in the Negative.
17. POINT NO. 4: The plaintiffs have submitted that defendant No.2 is in due of arrears of rent of Rs.57,600/ from 25.09.2017 till filing of the suit. On the other hand, the 2nd defendant has contended that he has sent a D.D of Rs.24,600/ towards the arrears of rent from 25.09.2017 to 24.03.2018 to the plaintiffs. But, the plaintiffs have not taken the said D.D. and returned the same to him and therefore, he is not liable to pay the arrears of rent. Merely because the plaintiffs have not accepted the D.D., the payment of arrears of rent has nothing to do with the right of the plaintiffs to evict the tenant. The present suit is filed for the purpose of ejectment. As admitted by the 2nd defendant, he is in due towards arrears of rent from 25.09.2017. Therefore, the plaintiffs are entitled for arrears of rent of Rs.57,600/ in SCCH-21 11 S.C. No.15344/18 respect of suit schedule property. Hence, I answer Point No.4 in the Affirmative.
18. POINT NO. 5: It is the contention of the plaintiffs that they have terminated the tenancy of the defendant in respect of suit schedule property. The plaintiffs have not produced the registered lease deed entered between the parties. Therefore, the tenancy of defendant in respect of suit schedule property shall be considered as monthly tenancy. Admittedly, the suit property was not let out for agricultural or manufacturing purpose. Therefore, as contemplated under section 106 of Transfer of property Act, the present lease was from month to month terminable by 15 days quit notice. In the present case, the plaintiffs have issued quit notice to the defendants on 14.03.2018. The present suit is filed by the plaintiffs on 07.12.2018. Hence, the plaintiffs have complied the legal requirements of quit notice as contemplated under section 106 of Transfer of property Act. Therefore, the termination of tenancy of the defendant is valid. Accordingly, I answer Point No.5 in the Affirmative.
19. POINT No.6: The plaintiffs have claimed mesne profit of Rs.60,000/ per month from the date of the suit till handing over of the vacant possession for the unauthorized occupation of the suit schedule property by the defendant No.2. While discussing Point No.5, I have already observed that tenancy of the defendant in respect of suit schedule property is terminated. After the termination of the tenancy, SCCH-21 12 S.C. No.15344/18 the possession of the defendant over the suit schedule property is wrongful possession. As per Sec.2(12) of Civil Procedure Code, 'Mesne Profits' means, those profits which a person in wrongful possession of such property has actually received or might with ordinary diligence have received there from together with interest on such profits. Therefore, failure of the defendant to deliver the vacant possession of suit schedule property makes him liable to pay the mesne profits. There are no materials on record for calculation of mesne profits at Rs.60,000/ per month. As pleaded by the plaintiffs, the monthly rent is fixed at Rs.4,100/. Therefore, the plaintiffs are entitled for mesne profits in respect of the suit schedule property @ Rs.4,100/ per month from 01.04.2018 till the delivery of its vacant possession. Accordingly, I answer Point No.6 partly in the Affirmative.
20. POINTS No.7 & 8: In view of above discussion, the plaintiffs are entitled for the delivery of vacant possession of the suit schedule property. Considering the prevailing situation, I deem it proper to grant a period of 90 days to the defendant to quit and deliver the vacant possession of the suit schedule property to the plaintiffs. Hence, I answer Point No.7 in the Affirmative and pass the following:
ORDER The suit is decreed in part with cost.
The defendant is directed to quit and deliver the vacant possession of the suit schedule property to the plaintiffs within 90 days from today.SCCH-21 13 S.C. No.15344/18
The plaintiffs are entitled for arrears of rent of Rs.57,600/ and mesne profits @ Rs.4,100/ per month from 01.04.2018 till the delivery of vacant possession of the suit schedule property.
On failure of the defendant to vacant and deliver the vacant possession of the suit schedule property, the plaintiffs are at liberty to get the vacant possession of the suit schedule property by the process of court.
Draw decree accordingly.
(Dictated to the Stenographer directly on computer, typed by her, corrected by me and then pronounced in the Open Court on this the 13th day of January 2021) (VANI A. SHETTY) XVII ADDL.JUDGE, COURT OF SMALL CAUSES, MAYO HALL UNIT, BENGALURU.
ANNEXURE List of witnesses examined on behalf of plaintiff:
PW.1: D. Syed Noorul Hasan List of documents marked on behalf of plaintiff:
Ex.P1 : Copy of demand notice
Ex.P2 : 2 postal receipts
Ex.P3 & 4 : 2 Tax paid receipts
Ex.P5 : Khatha Certificate
Ex.P6 : Khatha extract
Ex.P7 : 10 receipts
SCCH-21 14 S.C. No.15344/18
List of witnesses examined on behalf of defendant:
DW.1: Mohammed Ali DW.2: Usman
List of documents marked on behalf of defendant:
Ex.D1 : Postal receipt
Ex.D2 : EMO receipt
Ex.D3 : Letter dated 28.04.2018
Ex.D4 : Postal receipt
Ex.D5 : Notice dated 14.03.2018
Ex.D6 : Reply dated 07.05.2018
Ex.D7 : Agreement of lease
(VANI A. SHETTY)
XVII ADDL.JUDGE,
COURT OF SMALL CAUSES,
MAYO HALL UNIT, BENGALURU.
********
SCCH-21 15 S.C. No.15344/18