M/S. Natraj Electricals, ... vs P. Venkateswara Sarma
2022 Latest Caselaw 8944 AP

      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

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

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

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?

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

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?

Dr. VRKS, J S.A.No.1197 of 2013

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

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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

(2004) 2 SCC 712

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.

AIR 1978 Cal 495

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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

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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

AIR 1977 SC 1599

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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

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

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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

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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

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

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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.

Dr. VRKS, J S.A.No.1197 of 2013

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

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