Karnataka High Court
Smt. B.V Sudhamani D/O Late Sri V V ... vs Sri. K. Ramesh Shetty on 3 April, 2013
Author: Huluvadi G.Ramesh
Bench: Huluvadi G Ramesh
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 3rd day of April, 2013
Before
THE HON'BLE MR JUSTICE HULUVADI G RAMESH
Regular First Appeals 89 / 2011 c/w 85 / 2011
Between
In RFA 89 / 2011
Smt B V Sudhamani, 65 yrs
D/o late V V Arasappa Setty
W/o B S Venkatachalapathy
R/a # 13, I Main Road, Kempanna Layout
Palace Guttahalli, Bangalore 20
By her GPA holder, husband
Sri B S Venkatachalapathy Appellant
(By Sri K V Narasimhan, Adv.)
And
Sri K Ramesh Shetty S/o late K Narayana Shetty
Proprietor - M/s Sri Suchindra Cafe
# 165, Arcot Srinivasachar Street
Bangalore 53 Respondent
(By Sri S Shaker Shetty, Sr.Adv.)
In RFA 85 / 2011
K Ramesh Shetty, 56 yrs
2
S/o late K Narayana Shetty
Proprietor - M/s Sri Suchindra Cafe
# 165, Arcot Srinivasachar Street
Bangalore Appellant
(By Sri S Shaker Setty, Sr.ADv.)
And
Smt B V Sudhamani, 65 yrs
D/o late V V Arasappa Setty
W/o B S Venkatachalapathy
R/a # 13, I Main Road, Kempanna Layout
Palace Guttahalli, Bangalore 20
By her GPA holder, husband
Sri B S Venkatachalapathy Respondent
(By Sri K V Narasimhan, Adv.)
First Appeals are filed under S.96 of the Code of Civil Procedure
praying to modify the judgment and decree in OS 2290/2003 by the III
Addl. City Civil Judge, Bangalore on 5.10.2010; to set aside the order in
OS 2290/2003.
Appeals having been reserved for orders on 20 th February, 2013, the
Court delivered the following:
JUDGMENT
These two appeals are filed by the plaintiff as also by the defendant against the judgment and decree passed by the III Additional City Civil Judge, Bangalore on 5.10.2010 in OS 2290/2003.
3
RFA 89/2011 is filed by the plaintiff seeking modification of the judgment in OS 2290/2003 by granting the relief of damages claimed in the suit and for a direction for damages/mesne profits from the date of suit.
RFA 85/2011 is filed by the defendant in the suit praying to set aside the judgment and decree passed in the said suit and to allow the appeal with costs throughout.
Suit in OS 2290/2003 was filed by the plaintiff seeking for ejectment of the defendant and to deliver vacant possession of the suit property, to pay a sum of Rs.1,23,759/- to the plaintiff being the arrears of rents and amenities from 23.3.2000 to 22.6.2002 and also to pay interest on the said sum at the rate of 10% p.a. From 23.3.2000 amounting Rs.13,561 and to appoint a Commissioner or a qualified engineer to assess and estimate the damage caused to the suit property.
It is the plaintiff's case, she is the only daughter and legal heir of late Sri V V Arasappa Setty and Smt Lakshmi Kanthamma and her father was 4 the absolute owner of the suit property. He died on 8.5.1984 leaving behind him the plaintiff and her mother and the suit property and other properties and that he had made a Will on 17.12.1983 . After the death of the plaintiff's father, her mother managed the suit property and they both were jointly collecting rents from the father of the defendant i.e., K K Shetty who was inducted as a tenant in the suit property in the year 1962 under a registered lease deed dated 11.1.1962 and the said K K Shetty continued to be the tenant of the suit property till his death and he died on 9.1.1992. It is stated, after the death of plaintiff's father, her mother had filed a suit for partition and separate possession of her share in the properties against the plaintiff in OS 4747/1991 and it was declared that plaintiff and her mother were entitled to half share each in the properties left by her father - V V Arasappa Setty. Against the said order, plaintiff filed an appeal in RFA 287/1994 before this Court and during pendency of the appeal, her mother died on 30.1.1997. Thus, by virtue of the Will dated 17.12.1983 by the plaintiff's father and the order in RFA 287/1994, plaintiff became the absolute owner of all the properties including the suit property. Meanwhile, after the death of the plaintiff's father, the defendant had approached the 5 plaintiff's mother and requested her to continue him as a tenant in the suit property and her mother had consented to continue the defendant as the successor in interest to the lease hold rights of his father in the suit property under a registered lease deed dated 23.6.1992 for a period of ten years which was executed by the defendant. It is stated, during the subsistence of the lease, the defendant has caused extensive damage to the suit property and has put up un-authorised construction which was brought to the notice of the Corporation authorities and, as on 20.5.2002, the defendant was due in a sum of Rs.2,05,175/- towards arrears of rent and Rs.67,504/- towards amenities, in all a sum of Rs.2,72,683/- and that plaintiff has restricted her claim to Rs.1,23,759/-. Plaintiff issued a legal notice on 20.5.2002 to the defendant to which the defendant has replied stating, the suit property belongs to a Trust alleged to have been created by her mother and the tenancy has expired by efflux of time and that he is only liable to pay a sum of Rs.30,000/- p.m. By way of damages from 23.6.2002. Hence, the suit.
Defendant, in his defense, though has admitted the exchange of notices and the pendency of the suit between the plaintiff and her mother, 6 has denied the other averments of the plaint. It is stated, there is no relationship of landlady and tenant between the plaintiff and himself. The mother of the plaintiff Smt Kanthamma has created a registered Trust Deed leaving all her properties in favour of the Trust known as Smt V Lakshmi Kanthamma and Sri Vemale Venkata Arasappa Setty Charitable Trust and she has also executed a registered Will on 7.5.1993 and as such, plaintiff has no locus standi to file the suit and she is a stranger to the suit property. The defendant has also contended that the suit is bad for non-joinder of necessary party i.e., the Trust which ought to have been impleaded as a party to the suit. He has denied that the plaintiff is the sole legal heir of Smt Kanthamma. It is stated, after the death of the original tenant K K Shetty, he has been impleaded as legal representative in HRC 972/1989 filed against the previous tenant. The defendant has contended, he has paid Rs.58,047/- towards property tax after deducting the accrued rental and excess rental paid to Smt Kanthamma and that he is entitled to a sum of Rupees five and a half lakhs and that he is also entitled to deduct the same out of the future rentals payable. It is also his contention, the fact that the plaintiff has become the owner of the suit property is yet to be declared and 7 accordingly, prayed to dismiss the suit with costs.
Based on the pleadings, the trial court framed the following issues:
• Whether plaintiff proves that she is the absolute owner of the suit schedule property.
• Whether plaintiff further proves the existing relationship of landlord and tenant between her and the defendant in respect of the suit schedule property.
• Whether plaintiff legally terminated the tenancy of the defendant.
• Whether plaintiff further proves that V V Arasappa Shetty during his lifetime executed a Will dated 17.2.1983 in favour of plaintiff and his widow late Smt. V Lakshmikanthamma.
• Whether plaintiff further proves that late K K Shetty was the tenant of the suit schedule property under V V Arasappa Shetty by virtue of registered lease deed dated 10.1.1962.
• Whether plaintiff further proves that the defendant executed a registered lease deed in respect of suit schedule property on 23.6.1992.
• Whether plaintiff has no locus standi to file the suit as contended in para 5 of the written statement.
• Whether suit is bad for non-joinder of necessary parties as contended in para 6 of the written statement.
• Whether defendant proves that late Smt Kanthamma during her life time created a registered Trust Deed leaving all her property in 8 favour of the Trust known as Smt V Lakshmikantamma and Sri Vemale Venkata Arasapa Setty Charitable Trust and has executed a registered Will dated 7.5.1993 in favour of the said Trust. • Whether plaintiff is entitled to recover Rs.1,23,759/- from the defendant towards arrears of rent and amenities charges from 23.3.2000 to 22.6.2002 with interest at 10% amounting to Rs.13,561/-.
• Whether the plaintiff is entitled to mesne profits from the date of the suit till delivery of vacant possession of the suit schedule property. • Whether plaintiff is entitled to the relief as sought. The power of attorney holder of the plaintiff i.e., her husband himself examined as PW 1 and other two witnesses - PWs 2 and 3 and got marked exhibits P1 to 34. After inquiry and after hearing the parties to the suit, while answering the issues raised accordingly, the trial judge decreed the suit of the plaintiff in part with proportionate cost against the defendant directing him to vacate and hand over vacant possession of the suit property to the plaintiff within six months from the date of the order and also ordered that plaintiff is entitled for recovery of Rs.1,23,759/- being the arrears of rents and charges of amenities from 23.3.2000 to 22.6.2002 from the defendant. Against the said order, both the parties are before this 9 Court with the prayer as stated above.
Heard Sri K V Narasimhan, counsel representing the plaintiff and Sri Shaker Shetty, Sr. counsel representing the defendant.
According to the appellant/defendant's counsel, V L Kanthamma, mother of the plaintiff had bequeathed a will dated 17.12.1983 in favour of the trust bequeathing all her properties including the suit property and there were several cases pending between the plaintiff and her mother and he also has denied the execution of the Will by the father of the plaintiff on 17.12.1983 in favour of the mother of the plaintiff and plaintiff and also he has challenged the execution of the will by the father in favour of the mother for a life time and after her death, in favour of the plaintiff and also the bequeathing of remaining half share in favour of the plaintiff as per Will at Ex.P34. According to the defendant's counsel, Will has been concocted by the plaintiff. Further, it is also the argument of the counsel that the property was bequeathed by V L Kanthamma in favour of the Trust and so also regarding creating a Trust and that the Trust is not a party to the suit as 10 such, suit is not maintainable; suit property is also part of the trust deed in favour of the Trust and accordingly, in the absence of necessary parties, suit is not maintainable.
It is also further contended, unless plaintiff establishes title over the suit property, she cannot claim the rents. Further, learned counsel also stated, the Trust also filed a suit for declaration The suit filed for mesne profits is not maintainable as separate inquiry has to be held, the Court has discretionary power to pass a decree directing an inquiry into future mesne profits and separate court fee has to be paid. Further, it is contended that defendant is paying the corporation tax, also has executed a bank guarantee as such, question of paying damages does not arise. Even who is the legatee under the Will has not been established Lease executed has expired by efflux of time. Tax to the tune of 2.71 lakhs has been paid and also bank guarantee for Rs.2 lakhs has been executed. Raising several grounds, it is contended that the suit itself was not maintainable before the civil court in the absence of proof of title and also when property has been bequeathed by the mother of the plaintiff in favour of Smt V Laksmi Kanthamma & Sri 11 Vemale Venkata Arasappa Charitable Trust, suit property also formed property registered in favour of the Trust and the suit filed by the Trust also is yet to be decided. Accordingly, relying upon the decisions of the Apex Court, he tried to contend that the judgment and decree passed by the trial court in passing an order of eviction is not tenable and a co-owner cannot maintain the suit for ejectment unless consent is there by the other co- owner. In support of the contention, he has relied upon the case of Nanalal Girdharlal & Anr Vs Gulamnabi Jamalbhai Motorwala & Ors - AIR 1973 Gujarat 131. Counsel has also relied upon the Apex Court decision in the case of D Satyanarayana Vs P Jagadish - (1987) 4 SCC 424 to contend that eviction order cannot be passed where there is no finding regarding bonafides of dispute as to title and where the sub-tenant is regularly paying rent to the landlord. He also relied upon the case of Sheik Abdul Kayum & Ors Vs Mulla Alibhai & Ors - AIR 1963 SC 309 to contend that trustees cannot renounce and delegate all their functions. He has also relied on the decision in M/s Karnataka Trader, Hubli Vs Hiren Shamji Karamsey & Anr - AIR 1987 KAR 204 to contend that when the trust property is managed by co-trustee, the property leased by only one 12 trustee who is not a managing trustee to the exclusion of the co-trustee, such transfer is illegal. In the decision reported in V Dhanapal Chettiar Vs Yesodai Ammal - AIR 1979 SC 1745, the Apex Court has observed, in order to get a decree or order for eviction against a tenant, it is not necessary to give notice under S.106 of the Transfer of Property Act as it is unnecessary and a mere surplusage because landlord cannot get eviction of tenant even after such determination. The tenant continues to be so even thereafter. Counsel has also relied on the case of Gopalakrishna Pillai & Ors Vs Meenakshi Ayal & Ors - AIR 1967 SC 155 wherein referring to O 20 R 12, CPC, it is held that court has discretionary power to pass a decree directing an inquiry into future mesne profits by paying the court fee. Reliance is also placed on the decision in Hardeo Rai Vs Shakuntala Devi & Ors - AIR 2008 SC 2489 to contend that in the case of hindu co- parcenary property, by virtue of partition, share of each of co-parcenar becomes clear. Once share of a co-parcenar is determined it ceases to be a co-parcenary property. In such an event, party would not possess property as joint tenants but as tenants in common. Counsel has also relied on the case of Madhukar & Ors Vs Sangram & Ors - 2001 (4) SCC 756, 13 wherein referring to S.96, CPC, it is observed it is the duty of the appellate court to record it s finding only after dealing with all the issues of law as well as fact with the evidence lead by parties, both documentary and oral and also the decision in Arundathi @ Harshana Vs Iranna @ Veerendra - 2008 (3) KCCR 1287 to a similar effect. Learned counsel has cited an unreported decision in WP 19135 decided on 4.11.2006 filed by the plaintiff to contend that respondent is disputing the relationship of landlord and tenant and he had been directed to deposit the amount before the court towards rent payable. Learned counsel places reliance on the case of Vidhyadhar Vs Mankikrao & Anr - AIR 1999 SC 1441 to contend that in a suit for possession, defendant can raise all pleas available to him to defeat the suit of the plaintiff. He has also relied upon the decision in Janki Vashdeo Bhojwani & Anr Vs Indusind Bank Ltd & Ors - AIR 2005 SC 439 to contend that power of attorney holder cannot depose in the place and in stead of the principal. Relying upon the case of Devi Das Vs MohanLal
- AIR 1982 SC 1213 regarding eviction by purchaser of building, it is contended the tenant could not challenge the validity of the sale deed executed in favour of the purchaser because tenant was not a party to it. 14
Learned counsel for the plaintiff respondent has contended that the tax was paid in the name of the landlord by the tenant. Trust is concocted. Even otherwise it has nothing to do with the property in question. Defendant failed to establish by documentary evidence any such inter se dispute between plaintiff and the Trust. Trust is created by the mother of the plaintiff in the name of her husband It is is a family trust Defendant cannot take this as a ground stating that Trust is not a party in the eviction proceedings It is further submitted, from the date of termination, apart from what is being claimed as damages till the filing of the suit, till the date of eviction, the defendant has to pay damages of Rs.2,17,000/- and also prayed for to hand over Rs.2 lakhs guarantee to the plaintiff since the defendant is due in a sum of Rs.3,58,000/- as balance even after deducting 2.71 lakhs towards taxes. Lease executed has also terminated by efflux of time. It is submitted, in RFA 287/1994 decided on 29.8.1994, the mother of the plaintiff has stated that after her death property goes to the daughter. It is also stated, there is no other legal representative except the plaintiff left behind by Lakshmi Kanthamma. Even though a decree is passed in partition suit, during pendency of the appeal since her mother has died, the 15 plaintiff gets the property by succession and plaintiff is the sole owner on the death of Lakshmi Kanthamma and also submitted, as per Ex.P26, this defendant has admitted that after the death of Lakshmi Kanthamma, Sudhamani is the landlord as such, on that score, it is the plaintiff who is the legal representative of Lakshmi Kanthamma who is the owner of the property and the suit is maintainable. Even taxes are also paid by the tenant in the name of Sudhamani. Further application filed on 19.4.2006 by the Trust came to be dismissed as per Ex.P33. As against which, no appeal was preferred and even the Trust is not a necessary party and there was a separate arrangement made between the plaintiff and the Trust of which the tenant cannot challenge to contend plaintiff has no right to maintain the suit. Even it is submitted, OS 6510/1997 a suit filed by the Trust claiming rent, is dismissed. No trust deed or Will is produced by the defendant to confront the same and to establish. Counsel has also relied upon the decision of the Apex Court in the case of Pal Singh Vs Sunder Singh (dead) by Lrs & Ors -AIR 1989 SC 758 to contend that when the co-owner did not object to the eviction, one co-owner could maintain an action for eviction even in the absence of the other co-owner. And also to contend that 16 the rent had all along been collected by the landlord/plaintiff from the tenant.
Accordingly, counsel has sought for decreeing the suit in entirety and justified the order of the trial court passed in eviction, however, contended that the plaintiff is entitled for mesne profits from the date of termination of tenancy till suit is filed and thereafter, till the handing over possession by way of damages and that it is the discretion of the court to fix damages and thee need not be a separate inquiry be held in this regard as pr O 20, R 12, CPC.
In the light of the arguments advanced, the points that arise for consideration are -
Whether the trial court is justified in holding that there exists a landlord and tenant relationship between the plaintiff and the defendant. Whether the trial court is justified in holding that the tenancy has been legally terminated by the plaintiff.
Whether the trial court is justified in holding that one K K Shetty was the 17 tenant of the suit schedule property under the father of the plaintiff as per lease deed date 10.1.1962 and plaintiff is able to prove the same. Whether the trial court is justified in holding the plaintiff has got locus standi to file the suit and that the suit is bad for non-joinder of necessary parties.
Whether the trial court is justified in holding that the issue relating to creation of Trust by Lakshmi Kanthamma during her lifetime and bequeathing all her property in favour of the Trust in the name of her husband and herself is not necessary to give a finding.
Whether the trial court is justified in holding that plaintiff is entitled for vacant possession of suit property and for recovery of arrears of rent amount to Rs.1,23,759/-
Whether the trial court is justified in refusing to award damages and mesne profits holding that plaintiff can seek such a relief i.e., for mesne profits and damages in a separate forum.
As per the finding of the trial court and also as it transpires, plaintiff is the daughter of Arasappa Shetty and Lakshmi Kanthamma. It is seen that there is a lease deed created in favour of K K Shetty by the father of the 18 plaintiff way back in the year 1960. It is also not in dispute the father of the plaintiff was the absolute owner of the suit schedule property who died on 8.5.1984 leaving behind the plaintiff and her mother and also he executed a Will, as per the plaint, dated 17.12.1983. The plaintiff and her mother were managing the property after the death of father of the plaintiff and that the plaintiff and her mother were jointly collecting rents from the father of the defendant viz., K K Shetty who was inducted as a tenant in 1962. Even after expiry of the lease period till his death in January 1992, K K Shetty continued to be the tenant After the death of plaintiff's father, mother of plaintiff filed a suit for partition and separate possession in OS 4747/1991 That suit was decreed holing that both plaintiff and her mother wee entitled for half share each. Against the said judgment, plaintiff preferred an appeal in RFA 287/1994. During pendency of the appeal, mother of the plaintiff died on 30.1.1997 According to the plaintiff, as per Will dated 17.12.1983 left by her father, and also by virtue of the order in RFA 287/1994, plaintiff has become the absolute owner of all the properties including suit schedule property. According to the plaintiff, after the death of her father, defendant having approached mother of the plaintiff, requested her to continue him as 19 a tenant in the suit schedule property. Once again lease deed was executed on 23.6.1992 for a period of ten years by the defendant. According to plaintiff, defendant has caused extensive damage and also he was due in a sum of 2,05,175/- towards arrears of rent and another 67,504 towards amenity charges out of which plaintiff restricted the claim to 1,23,759/- and a legal notice was caused on 20.5.2002 for which defendant has replied denying the title contending that property belongs to Trust created by her mother.
The trial court has noted the status of the parties viz., the plaintiff, that her father Arasappa Shetty is the absolute owner of the property who had also executed a Will both in favour of the plaintiff and her mother, the mother had only life interest and on the death of mother, property vests with the daughter i.e., plaintiff. Even in the suit filed by the mother against the plaintiff (daughter) though it was decreed against which there was an appeal filed, during pendency of the appeal, the mother died. As per the Will of Arasappa Shetty, plaintiff becomes the absolute owner of the suit schedule property.
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It appears, even though as per the legal position, tenant can agitate the maintainability of ejectment suit, etc., in the case on hand, having regard to the genuineness of the Will executed by Arasappa Shetty, the defendant being a stranger and third party, cannot question the right of the plaintiff. More so, when the plaintiff is the daughter of Arasappa Shetty and Lakshmi Kanthamma. As such, suit itself is maintainable. Even assuming that the Trust is created by V Lakshmi Kanthamma, still for the remaining half of the properties, the plaintiff becomes the absolute owner and also a co-owner as such, the suit filed by her for ejectment cannot be held to be bad for want of non-joinder of necessary parties. Even in the background of the Will executed by Arasappa Shetty in favour of the plaintiff by way of absolute right, on the death of mother of the plaintiff, i.e., mother had been given only life estate and on her death, the property becomes absolute in favour of the plaintiff. Even assuming that there is a Trust created, it is nothing but a family Trust. Further, if there is any dispute between the plaintiff and the alleged Trust, if any it is inter se between the plaintiff and the Trust and the Trust has not come forward in this suit and also plaintiff being a co-owner, as per the legal position, a co-owner can file a suit, 21 accordingly, even in the absence of the Trust, suit can be very well be maintained. More over, defendant has not made any attempt to produce the Trust Deed. In that view of the matter and also when the defendant is said to have paid the corporation tax in the name of the plaintiff, then necessarily the defendant himself has recognized the plaintiff as the landlord and further, the very conduct of the tenant is in recognizing the right of the landlord and the documents, the circumstances and the approach of the tenant is recognizing the status of the plaintiff, as such there exists a landlord tenant relationship between the plaintiff and the defendant. As such, the trial court is justified in holding that there is a relationship.
Even so far as the termination of tenancy is concerned, the legal notice dated 2.5.2002 is issued by the plaintiff terminating the tenancy and Ex.P4 is the reply notice by the defendant. Further Ex.P6 is the lease between the defendant and the mother of the plaintiff for a period of ten years expired by efflux of time on 22.6.2002. As such, rightly the trial court referring to the documents on record, has formed a clear opinion that there is termination of tenancy both by efflux of time and by issuance of notice. 22
So far as the execution of Will by Arasappa Shetty in favour of plaintiff and her mother is concerned, at the outset, it is seen that the plaintiff is not a stranger to the testator rather, she is the sole daughter. Even tenant cannot question or try to contend Will is not genuine when no person other than the tenant has come out with a plea of genuineness of Will. In the circumstances, it is too much on the part of the tenant to raise all frivolous contentions having enjoyed the property for more than 40 years on term lease basis having derived substantial benefit during the lease period.
It is seen, there was a lease deed executed by the father of the plaintiff in favour of the father of the defendant/tenant in respect of the suit property. It is a registered sale deed dated 11.1.1962. Even Ex.P29 - 15 rental receipts also do depict that father of the defendant K K Shetty was paying rent to both plaintiff and her mother. Further lease deed is executed by the mother of the plaintiff on 23.6.1992 in favour of the defendant as per Ex.P6. Thus, this defendant has continued to be tenant under the plaintiff and her mother doing boarding, lodging and restaurant business in the suit 23 schedule property on a monthly rent of Rs.2,500/- and Rs.750/- towards amenities. There is also a clause provided for enhancement at the rate of 15% every three years. The trial court has taken note of the fact that there is no suggestion made to PW 1 with regard to the factual position regarding tenancy and other averments in Ex.P6 - lease deed.
Even though the defendant went to the extent of contending that the power of attorney holder's evidence is of no value, etc., the conduct of the tenant itself goes to show that he never stepped into the witness box to take such a stand. Apart from that, the decision in Janki Vashdeo Bhojwani's case cited supra is with regard to evidentiary value of power of attorney holder, that the Power of attorney holder will not be having personal knowledge of the transaction of plaintiff's properties, in the case on hand, PW 1 who is the power of attorney holder is none other than the husband of the plaintiff. As such, he has got all personal knowledge of the properties of the plaintiff and also about her family. In that view of the matter, when defendant himself has not stepped into the witness box to deny the stand of the plaintiff, the case of the plaintiff has to be accepted in entirety. 24
Ex.P9 and 10 are the katha extracts of the suit property which has been mutated in the name of the plaintiff. Further more, the Will executed by Arasappa Shetty has also been considered and acted upon by the authorities concerned in recognising the right of the plaintiff as the sole owner. Even assuming that there is a alleged Trust Deed executed by the plaintiff's mother, it is nothing but a family Trust and inter se understanding between the plaintiff and the alleged Trust, if any. The defendant has no right to raise a dispute on the ground that the trust is not made a party, etc. With regard to the several citations relied upon by the defendant, though the legal position is made clear, but in the facts and circumstances of the case, the defendant himself has not made out a case to stand by his contention. More over the very approach of the defendant even in not entering into the witness box, depicts the conduct of the defendant that only to harass the plaintiff, all such frivolous contentions are taken. In the judgment of the Apex Court relied upon by the counsel for the plaintiff in Pal Singh's case cited above, it is held, the law is that the estoppel of a 25 tenant under S.116 of the Evidence Act was a recognition and statutory assimilation of the equitable principles underlying the estoppel in relation to tenants. Further, in the said judgment it is also held when the other co- owner did not object to the eviction, one co-owner could maintain an action for eviction even in the absence of the other co-owner. It is also to be noted, the rent had all along been collected by the party from the tenant, the conduct of the tenant paying taxes in the name of the plaintiff also speaks to the fact of recognizing the right of the plaintiff. As such, there is no scope for interference as to the finding given by the trial court regarding existence of the landlord and tenant relationship between the plaintiff and the defendant. Further, in the case of Vinod Kumar Arora Vs Surjit Kurnar
- (1987) 3 SCC 711, the Apex Court held that plaintiff co-owner is entitled to maintain eviction petition alone having made out the grounds for eviction.
While answering all the points raised accordingly, it is held, appeal filed by the defendant tenant fails.
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So far as the finding of the trail court with respect to mesne profits is concerned, as noted above, it is the discretionary right of the court to hold an independent inquiry under O 20 R 12, CPC and further, as regards the claim of the plaintiff for the recovery of rentals with interest is concerned, of course, the plaintiff is entitled for recovery of amount of Rs.1,23,759/- which was the amount due to her from the date of the notice till the filing of the suit. Of course, so far as interest is concerned, since the court fee has to be paid on interest also, it is for the plaintiff to pay the court fee on interest also. On such payment of court fee, the plaintiff would be entitled for 10% interest though it is not a loan transaction. Further, the bank guarantee which has been executed by the defendant, if any be released in favour of the plaintiff. Further, for the difference amount, as observed by the trial court, with respect of mesne profits and damages is concerned, the plaintiff can seek for an independent inquiry as per O 20 R 12, CPC having regard to the profits derived by the tenant from the date of termination of tenancy till possession is taken. The plaintiff is also given liberty to take an independent stand as to what exactly is the quantum of damages suffered by her till possession is taken.
27
During the course of argument is is submitted, plaintiff has taken possession of the suit property since there was no stay during pendency of the matter before this Court. Rightly the possession has been taken over by the plaintiff from the defendant. In that view of the matter, the order of the trial court has been partly executed in taking possession which cannot be faulted.
In view of the overall discussion made above, the appeal filed by the tenant defendant is dismissed. Appeal filed by the plaintiff is disposed of accordingly.
Sd/-
Judge an