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IN THE COURT OF THE I JUNIOR CIVIL JUDGE,
CITY CIVIL COURT, AT SECUNDERABAD
PRESENT: SMT. M.INDIRRA PRIYADARSINI
I JUNIOR CIVIL JUDGE
DATED THIS THE 29th DAY OF DECEMBER, 2018
O.S. No. 31 OF 2015
Between:
1. Smt. N.Suguna D/o late R.Krishna, W/o N.Srinivas, aged 43 years, Occ: Housewife/Landlady
2. Smt. M.Sunitha, D/o late R.Krishna, W/o late M.Ramesh aged 40 years, Occ: Housewife
3. Miss R.Prema D/o late R.Krishna, aged 34 years, Occ: Household/landlady Plaintiffs 1 to 3 are R/o H.No. 1-8-32/60/A, Ist floor, Prenderghast Road, Bapubagh Colony, Secunderabad
4. Smt. V.Rajini, W/o Mr. V.Brian aged 47 years, Occ: Business R/o G2, Anusri Building, Vivekananda Nagar Colony, Kukatpally, Hyderabad.
(plaintiff No.4 impleaded as per orders
in IA No. 466 of 2016, dt. 6.2.2017)....Plaintiffs
AND
J.K.Mehta, S/o Sri M.J.Mehta, Aged 60 years Occ: Prop. M/s. Hi Fashion, (Rock Bottom) D.No. 1-8-32/60/A, (Mulgi No.1), Bapu Bagh Colony,
Prenderghast Road, Secunderabad ...Defendant
This suit is coming on this day before me for final hearing in the presence ofSri M.Shiva Shekar, Advocate for plaintiff and Sri Imran Mahmood, Advocate for Defendant, and the matter having been heard and stood over for consideration till today, this Court delivered the following:-
J U D G M E N T
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This suit is filed for eviction directing the defendnat and thier person/s and agents claiming through or under him to vacate and handover vacant and peaceful physical possession of the plaint scheudle property to the plaintiff No.4 i.e. all that portion of non residential shop / mulgi No.1, in premises bearing municipal D.No. 1-8-32/60/A, on Plot No. 60/A, in the ground floor, with built up area of 400 sq.ft (525.5 sq.ft) approximately, situated at Bapubagh, Prenderghat
Road, Secunderabad.
2.The brief averments of the plaint are as follows:-
The plaintiffs 1 to 3 are the joint owners and possessors and landlords of suit schedule property having acquired the same from its original owner and plaintiffs 1 to 3 grand mother late Smt. Bommannaboina Sakkubai, W/o ltae
B.Gangaiah, under registered gift settlement deed document No. 2403/2006, dt.
22.11.2006 and since then they are in possession and enjoyment of the aforesaid property as absolute owners and prior to the execution of aforesaid gift settlement deed, plaintiffs grand mother during her life time leased out the suit schedule property and defendant obtained from the grand mother of the plaintiffs 1 to 3 for carrying readymade garments business under registered lease deed document No. 124/2002, dt. 5.2.2002 for a period of 12 years commencing from 1.2.2002 on a monthly rent of Rs. 2000/- per month with enhancement of monthly rent @ 20% once for every three years on the existing rent, exclusive of electricity charges and defendant became the tenant of plaint schedule property and the monthly rent was payable on or before 5th of every month, defendant used to pay monthly rent by cash and there is a practice of issuing rental receipts for the rents by the defendant. Plaintiffs further submitted that in view of the gift settlement deed executed by grand mother of plaintiffs 1 to 3 i.e. original landlady, the defendant tenancy has been attorned in favour of plaintiffs 1 to 3 3 after her demise and plaintiffs 1 to 3 used to look after the welfare of their grandmother and further as the lease deed was subsisting and to avoid disputes the grandmother of plaintiffs 1 to 3, used to receive the monthly rents from the defendant and used to spend the same for plaintiffs 1 to 3 only and the defendant used to pay the monthly rents to the grandmother of plaintiffs 1 to 3 till her demise i.e. on 7.10.2010, thereafter, the defendant used to pay monthly rents to the plaintiffs 1 to 3 jointly, accordingly the plaintiffs 1 to 3 used to issue rental receipts for the rents tendered by the defendant in respect of plaint schedule property and that the original monthly rent has been enhanced from time to time and last paid rent by the defendant is @ Rs. 3,744/- per month exclusive of electricity charges. The plaintiffs submit that plaintiff No.1 and her husband are carrying milk business and plaintiff No.2 husband died leaving behind plaintiff
No.2, her two minor children. Plaintiff No.3 is unmarried and that the plaintiffs 1 to 3 are not in possession and so also they are not owning any other non residential premises in the twin cities of Secunderabd and Hyderabad except the plaint schedule property and the only source of income for plaintiffs 1 to3 family is by way of selling milk and milk products and in view of expiry of defendant's agreed period of lease / tenancy of 12 years under aforesaid registered lease deed document, the plaintiffs 1 to 3 informed the defendant that they are not willing to renew the tenancy/lease of defendant and further requested the defendant to vacate and handover the plaint schedule property, so as to enable the plaintiffs 1 to 3 to carry aforesaid business, as the plaintiffs 1 to 3 inspite of expiry of lease period, have not executed any fresh rental agreement as per the clause No. 4 of the lease deed, as the defendant failed to vacate the plaint schedule property, the plaintiffs 1 to 3 refused to receive the monthly rents after expiry of lease, for which the defendant with dishonest intention sent monthly rents i.e. enhanced rent of Rs. 3,744/- per month, under three different cheques 4 in the names of plaintiff 1 to 3, contrary to the practice of paying the monthly rents by cash under single receipt, which the defendant is not entitled to do so, later the defendant approached the plaintiffs 1 to 3 and requested them to grant six months time to vacate the plaint schedule property, for which even though lease period was already expired by 31.1.2014 to avoid the dispute or litigation, plaintiffs 1 to 3 obliged the request of the defendant, thus in view of expiry of agreed lease period, the defendant tenancy from 1.2.2014 became month to month tenancy commencing from 1st day of every month ending with the last day of the said month. Further the plaintiffs averred that after expiry of lease period, the defendant failed to vacate and handover vacant possession of the plaint schedule property to plaintiffs a such the plaintiffs 1 to 3 got issued termination notice dt. 2.12.2014 terminating the tenancy of the defendant immediately after expiry of 15 days from the date of receipt of termination notice and further demanded the defendant to vacate and deliver the vacant physical possession of plaint schedule property, the defendant received the termination notice and failed to vacate and handover the vacant possession of plaint schedule property and sent a reply notice, dt. 10.2.2014 denying to vacate the plaint schedule property falsely alleging that the defendant has right to continue the tenancy for further period of 12 years by virtue of oral agreement which is totally false and they denied the same and the plaintiffs further contended that, the defendant falsely contended in his reply notice that there is a rival claim made by one Ms. Rajini (plaintiff No.4) against plaintiffs 1 to 3 which is not true and denied the same and the plaintiffs 1 to 3 initiated legal proceedings vide OS No. 1/2010 on the file
Hon'ble I Addl. Chief Judge, City Civil Court, Secunderabad against plaintiff No.4
and the defendant is also very well aware about the said proceedings since 2010 onwards and so also about said plaintiff No.4 who fradulently obtained alleged agreement of sale cum GPA from plaintiffs 1 to 3 and the defendant having keep 5 quiet all these days since 2010 onwards and when the plaintiffs 1 to 3 demanded the defendant to vacate the plaint schedule property, the defendant is trying to protract the litigation to avoid eviction, for which he is not entitled. The plaintiffs 1 to 3 further submitted that the defendant lastly paid the monthly rent @ Rs.
3744/- by way of cash to the plaintiffs 1 to 3 for the month of October, 2014 on 8.11.2014 by way of cash to the plaintiffs 1 to 3 for the month of October, 2014 on 8.11.2014, the plaintiffs issued rental receipt, dt.8.11.2014 to the defendant and defendant also signed the counter foil of the said rental receipt, but the defendant failed to pay the monthly rents for the month of November 2014 onwards, thus the defendant is due and liable to pay monthly rent for the month of November 2014 and admitted mesne profits for the month of December 2014 in all amounting to Rs.7,488/-, as the present rental value in the plaint schedule locality is more than Rs. 15,000/- as such the defendnat, who failed to vacate after expiry of agreed period of tenancy and so also on termination of tenancy is liable to pay the mesne profits or damages @ Rs. 15,000/- per month and plaintiff undertakes to pay the court fee on mesne profits from at the time of execution of decree for realisation of mesne profits. Hence the suit.
3.The defendant caused his appearance and filed written statement. The main averments of the written statement is as follows:
The defendant mainly averred that the present suit is not maintainable as the notice is defective and that he is a statutory tenant governed by the
Provisions of the Rent Control Act and that the present suit is liable to be dismissed for non joinder of proper and necessary parties and that the plaintiffs have hypothecated the entire plaint schedule building of plaint schedule property is a part of it to one Smt.Rajini by virtue of a registered mortgage deed and a suit for redemption is also been pending before the Hon'ble I Addl. Chief Judge, CCC, 6 at Secunderabd and that the defendant has always been regular in payment of rents at the rate of Rs. 1,248/- to each of the plaintiffs per month which is exclusive of electricity consumption charges and the rents are tendered through cheques vide covering letter wherein the said cheques have not been presented by the plaintiffs into their respective accounts for reasons best known to the plaintiffs and that the rents were tendered through money orders also when it is returned by the plaintiffs as refused, as such the plaintiffs are habituated in making false and reckless allegations as regards the alleged default, the plaintiffs are called upon to produce their statement of account of the rents received from the defendant. The defendant further submitted that the plaintiffs 1 to 3 have entered into a registered lease agreement for a period of 12 years commencing from 2002 which was obtained by him from grandmother of plaintiffs namely Smt.
Bommaboina Sakku Bai, on demise of Sakku Bai, the plaintiffs have been receiving the rents as per the registered lease deed between Smt. B.Sakkubai and the defendant, as such the defendant further entitled for an extension of lease for a further period of 12 years, the plaintiffs despite the fact had expressed his desire to extend the lease, the plaintiffs to pressurize the defendant and to extract money filed the present suit, the present suit itself is premature in view of extension, which the defendant is entitled and moreover, the defendant is a statutory tenant and the rent is below statutory limit of Rs.3500/- per month, that apart there have been a rival claim for rent as the plaintiffs have executed a mortgage deed in favour of Smt.Rajini wherein as per the recitals of the said lease deed, possession is also been handed over to said Smt. Rajini who has been harassing the defendant as she has filed a suit before the Additional Chief Judge,
Secunderabad for redemption of Mortgage and the said Rajini is a proper and necessary party to the said suit as such the suit is also liable to be dismissed on this count also and the defendant further submitted that there has been a series 7 of correspondence between plaintiffs and defendant wherein the defendant has always made his stand clear that the present suit is untenable in view of numerous defect in the notices issued by the plaintiffs and the said notices issued and the replies issued by the defendant be treated as part and parcel of the written statement to avoid repetition. The defendant further submitted that as the plaintiffs have no right whatsoever to file the suit, the present suit is a speculative suit which is totally devoid of merits, untenable in law and as such liable to be dismissed with exemplary costs. Hence, he request the court to dismiss the suit.
4.After the Plaintiff No.4 impleaded as a party to the suit proceedings vide orders dt.6.2.2017 In I.A.No. 466/2016, the amendment of plaint is filed and the plaintiff No.4 sought for reliefs in her favour and the defendant got filed the
additional written statement and the main averments of his additional written
statement is as follows:
5.The defendant mainly contended that there is no jural relationship with plaintiff No.4 and that the plaintiffs 1 to 3 have actively colluded with the plaintiff
No.4 as such notice of termination issued by the plaintiffs 1 to 3 dated 2.12.2014 is bad in law, as it does not specify the name of the plaintiff No.4 or the plaintiff
No.4 is party to the said notice of termination as such based upon the said deficiency the notice under section 106 of Transfer of Property Act is not a valid notice and the plaintiff No.4 has not issued any notice of termination nor there is any privity of contract between the plaintiff and the defendant as such the present suit is misconceived, devoid of merits, untenable in law and as such liable to be dismissed.
6.Basing on the above pleadings, my learned predecessor in office has framed the following issues for trial.
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1. Whether the quit notice is true and valid?
2. Whether the plaintiff is entitled for eviction?
3. Whether the plaintiff is entitled for arrears of rents?
4. Whether the plaintiff is entitled for mesne profits?
5. To what relief?
7.Heard on both sides and perused the records.
8.On behalf of the plaintiffs, Pws.1 and 2 are examined. The plaintiff No.3 is examined as Pw1 and got marked Exs.A1 to A8 and B1 to B4. On behalf of defendant, he examined as DW1 and got marked Exs.B5 to B9.
9.ISSUE NO.1
Whether the quit notice is true and valid?
The evidence of PW1, PW2 and DW1 in brief as follows:
PW1 reiterated the averments of plaint in her chief affidavit and got marked Exs.A1 to A8. Ex.A1 is the office copy of termination notice, dt. 2.12.2014,
Ex.A2 is the registered postal receipt, dt. 2.12.2014, Ex.A3 is acknowledgment card, dt. 3.12.2014, Ex.A4 is reply notice with postal cover, dt. 10.12.2014, Ex.A5 is certified copy of lease deed vide document No. 124/2002, Ex.A6 are rental receipt book, Ex.A7 is certified copy of the registered gift settlement deed vide document No. 2403/2006 and Ex.A8 is certified copy of registered sale deed vide document No. 479/2016, dt. 16.3.2016. In cross examination of PW1, Exs.B1 to
B4 are marked. Ex.B1 is Returned postal cover, dt. 17.8.2017, Ex.B2 is Returned postal cover, dt. 22.4.2017, Ex.B3 is another Returned postal cover, dt. 16.6.2017 and Ex.B4 is another Returned postal cover, dt. 25.5.2017. In cross examination she denied that after executing the Ex.A8 herself and other plaintiffs have no share in the suit schedule property and deposed that she filed Ex.A8 for eviction 9 of the suit schedule property and Ex.A8 is not the document which was executed by their grandmother and Ex.A7 is the document executed by their grandmother and she admitted that Ex.A7 was executed in the year 2006. She denied that her grandmother had executed an attornment letter to the defendant asking him to pay the rents to the plaintiffs after executing Ex.A7 from 2006 onwards and she admitted that the defendant was in possession of the suit schedule property as a tenant prior to executing Ex.A7 under a registered lease deed executed by their grandmother in favour of the defendant and it was expired in the year 2014, immediately, she added that her grandmother expired in the year 2010 and no fresh lease deed was executed by them after expiry of the previous lease deed in the year 2014 and she admitted that the defendant used to remit the rents to them till expiry of the lease period upto 2014. She further deposed that they have not received the rents after 2014 i.e. expiry of the lease period from the defendant and no account is maintained by them and she do not recollect that when they have issued the rental receipt lastly to the defendant and she also do not recollect that whether they have filed a petition for depositing of the rents into the court and that it was allowed. She further denied the suggestion that when the defendant was sending three money orders separately for each plaintiff they have directed him to sent a single money order and that they did not give any attornment letter to the defedant. She admitted that the name of the plaintiff
No.4 was not mentioned in Ex.A1 and further admitted that in her chief affidavit in para No.4 that the defendant tenancy has been attorned in their favour by their grandmother and in para No.8 in her chief affidavit that the defendant falsely alleged in his reply notice that there is a rival claim made by the plaintiff No.4 against them whcih is not true and denied and that she know the details of
O.SNo.1/2010 on the file of Hon'ble I ACJ, City Civil Court, Secunderabad and the
said suit was ended in compromise and the plaintiff No.4 has taken the property 10 which was mortgaged in her favour and executed a registered sale deed in favour of plaintiff No.4 on 16.3.2016 in respect of schedule property in O.S.No. 1/2010 and they did not sent any notice to the defendant intimating him about the registration of the said property and attornment of property in favour of plaintiff
No.4. Further the postal covers confronted to PW.1 she deposed that it is bearing address of H.No.1-8-32/60/A 1st floor, Prenderghast Raod, Bapubagh Colony,
Secunderabad and it was endorsed in the postal cover as unclaimed and that she did not receive any legal notice sent by defendant dt. 26.9.2017 stating
O.S.No.31/2015 is pending and as the money ordres were not receiving the
defendant is inclined to file a petition before the court for deposit of the rents and she is not aware about the documents confronted to her, which are found to be lease deed and partnership deed and agreement. She further deposed that her grandmother during her lifetime executed lease deed in favour of the defendant and she informed her that said lease deed is in the custody of the defendant. She denied that she do not know any terms and conditions mentioned in registered lease deed executed by her grandmother in favour of defendant and that at the inception of the tenancy, the rent was of Rs. 2000/- per month and for every three years the rent has to be enhanced upto 20% to the existing rent. She denied that even after termination of the tenancy by them they accepted the enhanced rents from the defendant and she is not aware of the security deposit amount given by the defendant at the time of inducting him into the suit schedule property and she is not aware about the defendant handing over a cheque of Rs. 2 lakhs to her grandmother towards security deposit amount. She denied that the tenancy is being continuing as per the terms and conditions of registered lease deed between her grandmother and defendant and no fresh lease deed was executed after the lease deed executed by her grandmother and she admitted in Ex.A8, it is not mentioned about the occupation of defendant as a tenant in the suit schedule 11 mulgi.
10.At this stage,the counsel for defendant put a question to PW1 that as she pleaded ignorance about filing of an Interlocutory Application for depositing of rents into Court, how can she has mentioned in para No. 10 of her chief affidavit that orders passed by this court in I.A.No. 38/2015, dt. 27.8.2015 to sent the admitted mesne profits of Rs. 3744/- under three different cheques, for which, the
PW1 answered that she mentioned in her chief affidavit about the orders in IA No.
39/2015 by this court and sending of amounts through three differenet cheques by the defendant and denied the suggestions that they have filed a false case against defendant.
11.The Plaintiff No.4 examined as PW.2 and in her chief-evidence reiterated the averments of plaint and in cross examination, she deposed that she has go through the contents of the plaint in the year 2016 and there was a dispute between herself and the plaintiffs 1 to 3 and she added that they have compromised the said suit and have filed the compromise deed before this court and she again said that she has not filed said deed before this court. She admitted that the defendant never paid rents to her at any point of time and she denied that there is no jural relationship of landlord and tenant between herself and defendant. She admitted that she has not addressed any letter to the defendant intimating that she purchased the premises and that she do not know whether the plaintiffs 1 to 3 never informed to the defendant about sold out the property to her in the year 2016 and she is aware that plaintiff No.3 gave evidence before this court. She further deposed that she has not gone through the written statement filed by the defendant prior to her impleading in this suit.
She admitted that the plaintiffs 1 to 3 filed the petition for impleading her but she has not filed any petition on her behalf. She admitted that she has not gone 12 through the additional written statement filed by the defendant after she was impleaded in this suit. She denied that plaintiff No.3 has been receiving rents from defendant upto March, 2018 and one of the plaintiffs receiving the rents from defendant and she is not aware that the rents were tendered to plaintiff No.3 through registered post covered with acknowledgement card and that she cannot identify the signature of plaintiff No.3 and she cannot identify the signatures of plaintiff Nos.1 to 3 and she has not filed the original sale deed before this court and she is not a party to the notice issued by plaintiff Nos.1 to 3 to the defendant and she has not issued the notice to the defendant after purchased the property by her and that that she has given instructions to prepare her chief affidavit. She admitted that she deposed before this court that she has not gone through the written statement and additional written statement of the defendant and she mentioned in para No.9 of her chief-affidavit that the contents of the written statement and additional written statement are all false on the basis of the oral discussion held with the defendant. She admitted that she has not mentioned in her affidavit about the oral discussion held with the defendant in the year 2015.
She admitted that her sale deed executed in the year 2016 and she did not register valid title document by the year 2015. She denied that she is falsely deposing that she had oral discussion with the defendant because that was not mentioned in the chief affidavit filed by her. She further deposed that Srinivas
Yadav is the husband of one of the owners of the suit premises, who is present in the court hall at the time of her deposing of evidence. She further deposed that she enquired with the plaintiffs 1 to 3 that till what period they were being receiving the rents from the defendant for which they have told that upto 2015 they received rents. She denied that upto March, 2018 the plaintiffs 1 to 3 were received the rents with due acknowledgement and the disputes started between her and plaintiffs No.1 to 3 in the year 2009 but she was unable to recollect by 13 which year they were settled the disputes and the plaintiffs 1 to 3 filed the suit against her in the year 2010 and the above suit was filed for recovery of money.
PW2 again says that they filed the suit for cancellation of Agreement of sale cum
GPA. She admitted that said Agreement of sale cum GPAand also copy of compromise decree are in her possession and she can file certified copies of those documents before this court by next date of adjournment. She denied that the original sale deeds pertaining to the demise property is mortgaged with the bank and obtained loan, the witness added that the original sale deed is in her custody and that she has to take permission from her husband to file the same as the said documents are in his custody. Counsel for defendant put a question to PW2 that as an NRI had she taken permission from RBI to purchase of the demise property, for which the PW2 answered that as she is Indian and holding Indian Pass Port as such she need not obtain permission from RBI to purchase of said property. The witness further deposed that she doesn't know whether the NRIs will have to obtain permission from RBI to invest any money in India. She further deposed that she has not verified with her landlady that whether there was any valid attornment of tenancy with the defendant and that she did not inform to the defendant about her purchase of the suit schedule property after executing the registered sale deed in her favour and that she did not verify from PW1 whether the defendant paid rents upto March, 2018 and that she did not furnish copy of sale deed to the defendant and she is not aware about the defendant incurring huge expenditure in developing the suit schedule property and made it more habitable. She denied that herself and the plaintiffs actively colluded with each other to defeat the valid right of the defendant and filed false suit and the notice is defective one and that certified copies of the documents were already filed
before this court in the present suit.
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12.The defendant himself is examined as DW1 and reiterated the averments of written statement in chief-affidavit and got marked Exs.B5 to B9.
Ex.B5 is Office copy of notice, dt. 17.2.2018 along with postal receipt
dt. 19.2.2018, Ex.B6 is returned postal cover along with acknowledgment card,
Ex.B7 is office coy of notice, dt. 19.3.2018 along with postal receipt and acknowledgment card, Ex.B8 is notice, dt. 15.6.2018 along with postal receipt, dt.
19.6.2018 and Ex.B9 is 3 return postal covers along with acknowledgment card.
13.In cross examination, DW.1 deposed that he is the tenant of the suit schedule property and that Sakkubai is the original owner of the suit schedule property, who is grandmother of plaintiffs 1 to 3 and that Ex.A5 is the registered lease deed for period of 12 years commencing from 1.2.2002 and that the 5th day of every succeeding month of English calendar the rent of the previous month will be payable and that there is a practice of issuing of receipt after paying of rent and the Ex.A6 rental receipt contain his signature and that after enhancement of rent from time to time, he lastly paid Rs.3,744/- rent for the month of October, 2014 and in view of convenience of the plaintiffs, he used to pay the rents in lumpsum and not separately. He admitted that there is no written agreement to pay the rent individually to the plaintiffs and as per Ex.A5 lease deed, the agreement period of lease will expired by 31.01.2014 and that there is no written agreement for renewal of Ex.A5 lease deed, but the plaintiffs orally permitted him to continue in the suit premises as a tenant. He denied that on his request, the plaintiffs orally given time for 6 months to him to vacate from the suit premises but he failed to do so and he also avoided to pay the rents to them and that he did not pay the rents for the month of November and December, 2014 by way of cash but he paid through cheques @ Rs.3,744/- p.m. and that he received legal notice in Ex.A1 and also gave reply under Ex.A4. He denied that from January, 2015 to 30.09.2018 he did not paid rents to the plaintiffs which is amounting to 15
Rs.1,67,480/- and that he did not file his bank statement to substantiate his contention that he have paid rents through cheques from November, 2014 to
September, 2018. The DW1 admitted that vide IA.38/2015 order dt.27.8.2015 this court directed him to pay the rents to plaintiffs in lumpsum. He voluntarily deposed that he has paid the rents, as per the directions of this Hon’ble court in the above said Interlocutory application. He denied that he did not pay the rents as per the directions of this Hon’ble court in IA.38/15. He denied that Exs.B1 to
B9 do not reveal that he has paid rents to the plaintiffs and he do not know whether the plaintiffs sold away the suit schedule property to plaintiff No.4 under
Ex.A8 after filing the above suit and after seeing her in the court, he came to know that the plaintiff No.4 is impleaded as party to the suit proceedings. He denied that the plaintiff No.4 demanded him to pay rents to her and that after filing above suit, he never paid rents either to plaintiffs No.1 to 3 or to the plaintiff
No.4. He is not aware whether plaintiff No.4 is the owner of the suit property. He denied the suggestion that knowing fully well that the plaintiff No.4 is the owner of the suit property after her purchase from plaintiff Nos.1 to 3 and in order to avoid payment of rents and arrears of rents, he is deposing false and he further added that he has no instructions from owners to pay rents to plaintiff No.4. He denied that the plaintiffs Nos.1 to 3 instructed him to pay rents to plaintiff No.4 since they have sold away the suit premises to plaintiff No.4. He further denied that the plaintiffs were terminated his tenancy under Ex.A1 as per law.
14.The plaintiffs 1 to 3 initially contended that as the defendant avoided to vacate the suit schedule property inspite of their demand, after his failure to pay rents from November 2014, they issued termination notice dt. 02.12.2014. The defendant contended that the notice issued by plaintiffs 1 to 3 is defective and that the schedule property was hypothecated to Smt.Rajini and she is a necessary 16 party to the suit. The Rajini was impleaded as 4th plaintiff to the suit after she had purchased the property during pendency of suit and she ammended the plaint seeking reliefs in her favour. In the additional written statement, the defendant contended that as plaintiff No.4 is not a party to the quit notice and notice is not valid.
15.The plaintiffs 1 to 3 have clearly mentioned in the plaint that the contents in the reply notice of the defendant that there is rival claim of plaintiff
No.4 is not true and that they themselves have initiated the legal proceedings vide OS No. 1/2010 against said Rajini, who fradulently obtained alleged agreement of sale cum GPA from plaintiffs 1 to 3 and knowing well about said suit the defendant kept quite and only when the plaintiffs 1 to 3 demanded him to vacate the property, he put the plea of rival claim.
16.PW1 deposed in her cross examination that the suit OS No. 1/2010 is compromised and they sold the property to plaintiff No.4, after she had paid the balance of amount. She denied that Ex.A1 is not a valid notice. PW2 who is the plaintiff No.4 also denied that the notice is defective. DW1 asserted that he has received Ex.A1 legal notice and issued a reply notice, Ex.A1 is the legal notice dt.02.12.2014 issued by the plaintiffs 1 to 3 to the defendant herein, wherein they informed him that they are vacating the tenancy and called upon him to vacate the property and to pay the damages for use and occupation.
17.Ex.A2 is the postal receipt and Ex.A3 is the postal acknowledgment card, it was signed by third person on behalf of defendant. Since the defendant had admitted the receiving of the said notice, it can be considered. Ex.A4 is the reply legal notice dt. 10.12.2014 got issued by the defendant, wherein, he contended 17 that at the behest of Rajini the notice was issued and the notice is not in accordance with law. Ex.A5 is the true copy of the lease deed executed between the defendant and grandmother of plaintiffs 1 to 3. Ex.A6 is the rental receipt book which show that the defendant had paid rents up to October 2014 at
Rs.3,744/- per month. The defendant did not explain as to how the notice under
Ex.A1 is not valid under law. He admitted that the lease expired by 31.01.2014 and there is no specific lease deed renewing the lease, so the tenancy will be month to month and as such the notice issued granting 15 days time will be a valid notice as per Section 106 of Transfer of Property Act.
18.The defendant had contended that the plaintiffs 1 to 3 mortgaged the property to plaintiff No.4 and a suit for redemption is filed and there is a rival claim as per the averments in written statement. But in the reply notice in Ex.A4 it is stated that Smt. Rajini is claiming by way of registered agreement of sale cum GPA holder with possession vide document dt. 13.05.2009 and she had called upon him to pay rents to him. It is clear that even after issuance of said legal notice by Rajani i.e. the plaintiff No.4, the defendant continued to pay the rents to plaintiffs 1 to 3. Now the said Rajini had impleaded herself as plaintiff
No.4 after purchasing the property during pendency of suit. When once she purchased the property under sale deed and came on record as plaintiff No.4 and stepped into the shoes of the plaintiffs 1 to 3, she can take the benefit of the quit notice issued under Ex.A1 by plaintiffs 1 to 3 as it is a valid notice and there is no need for plaintiff No.4 to issue a fresh notice to defendant under section 106 of
Transfer of Property Act. Since even by filing of the present suit the defendant is aware of her claim. So this court is of the opinion that the legal notice in Ex.A1 is true and valid u/s. 106 of Transfer of Property Act and it can be enforced even by the plaintiff No.4, who has stepped into the shoes of plaintiffs 1 to 3 by purchase 18 the property under sale deed, dt. 16.03.2016 under Ex.A8. Hence, the issue is answered in favour of the plaintiffs.
19. Issue Nos. 2 to 4:
For the sake of convenient discussion, all the Issues are discussed together in order to avoid repetition.
2. Whether the plaintiff is entitled for eviction?
3. Whether the plaintiff is entitled for arrears of rents?
4. Whether the plaintiff is entitled for mense profits?
The plaintiffs 1 to 3 contended that the defendant is doing business in various premises and that they require the plaint schedule property for selling milk and milk products by doing dairy business for eking out their livelihood. They demanded to vacate the property and issued termination notice but the defendant issued a reply with false averments and the defendant paid rents up to
October 2014 and fell due from November 2014 and the property fetches
Rs. 15,000/- per month at present and mesne profits may be awarded accordingly.
20.With regard to the defendant doing business in different premises, the
PW1 was not cross examined. Even with respect to the necessity and bonafide requirementalso PW1 was not cross-examined. So also the PW2 was not cross- examined regarding the necessity or her requirement of plaint schedule property.
The defendant contended that the plaintiff No.3 received rents till March 2014 which is evident by the acknowledgment due cards and covering letter. But in the cross examination, he deposed that he had no instructions from the owners, to pay rents to plaintiff No.4 and that he had not paid arrears of rents from July 2015 to 30.9.2018 and that he had paid rents for November and December 2014 by way of cheque. In the cross examination of PW1, Exs.B1 to B4 were marked, which are unserved covers. The defendant did not explain to what the said covers 19 pertained. Moreover, they were all issued during pendency of the suit. So the claim of the defendant that he had paid arrears of rents to the plaintiff No.3 is not proved. Though plaintiffs 1 to 3 is requires the premises for their personal use for carrying business as they sold property and as plaintiff No.4 has come on record asserting ownership rights, the defendant cannot question her right to evict him.
When he himself did not pay the rents as claimed in his written statement and became a defaulter in paying rents. So, on the ground of default in payment of rents the defendant will be liable to be evicted from the suit premises. Though he has admitted that he was directed to pay the rents in lumpsum he had paid as per the directions, but he did not produce any proof of same except Exs.B5 to B8.
Ex.B5 is the postal receipt with letter, Ex.B6 is unserved cover, Ex.B7 is the letter with acknowledgement and Ex.B8 is the letter. But the defendant did not produce any bank statement to show that the said cheques were realizedby the plaintiff
No.3. In fact he had pleaded at one stage that the plaintiffs did not present the cheques for the reasons best known to them. So, the plea of the defendant that he had paid entire rents cannot be believed.
21.It is clear that the defendant is in possession of the properties even after termination of lease under Ex.A1. So he is liable to pay mense profits or damages for use and occupation of the same. Though the plaintiffs contended that the rental value is Rs. 15,000/- at present, they did not produce any proof to show the same. Hence, this court is of the opinion that the defendant is liable to pay damages or mense profits at monthly rent of Rs. 3,744/- per month with periodical enhancements as per law from the date of suit till date of eviction. Hence, issues 2 and 4 are answered in favour of the plaintiffs.
22.Issue No.5:
To what relief:- 20
Since the plaintiff No.4 is the present owner and the entire relief portion was amended seeking reliefs in favour of plaintiff No.4 alone, it can be said that the plaintiff No.4 is entitled for suit reliefs as prayed for.
In the result, the suit is decreed with costs directing the defendant and his men to vacate the plaint schedule property and to deliver its vacant possession to the plaintiff No.4 within three months from this day, failing which the plaintiff No.4 will be at liberty to get the same done through the process of law and the defendant is also directed to pay arrears of rents at Rs.7,488/- to the plaintiff No.4 within three months, failing which the plaintiff is at liberty to recover the same through process of law and the defendant is also directed to pay future mense profits at Rs.3,744/- per month with periodical enhancements as per law from the date of filing of the suit till the date of vacant possession of the suit property to the plaintiff No.4.
(Typed to my dictation, corrected and pronounced by me in Open Court, on this the 29th day of December, 2018.
I JUNIOR CIVIL JUDGE,
CITY CIVIL COURT, SECUNDERABAD.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For the plaintiff: For the defendant: PW1: R.PremaDW1: K.Mehta PW2: V.Rajini
EXHIBITS MARKED
For the plaintiff:
Ex.A1 - Office copy of termination notice, dt. 2.12.2014, Ex.A2 - Registered postal receipt, dt. 2.12.2014, Ex.A3 - Acknowledgment card, dt. 3.12.2014, Ex.A4 - Reply notice with postal cover, dt. 10.12.2014, Ex.A5 - Certified copy of lease deed vide document No. 124/2002, Ex.A6 - Rental receipt book, Ex.A7 - Certified copy of the registered gift settlement deed vide document No. 2403/2006, dt. 22.12.2006 Ex.A8 - Certified copy of registered sale deed vide document No. 479/2016,
dt. 16.3.2016.
For the defendant:
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Ex.B1- Returned postal cover, dt. 17.8.2017 Ex.B2- Returned postal cover, dt. 22.4.2017 Ex.B3- Another Returned postal cover, dt. 16.6.2017 Ex.B4- Another Returned postal cover, dt. 25.5.2017 Ex.B5- Office copy of notice, dt. 17.2.2018 along with postal receipt, dt. 19.2.2018 Ex.B6- Returned postal cover along with acknowledgment card Ex.B7- Office copy of notice, dt. 19.3.2018 along with postal receipt and acknowledgment card Ex.B8- Notice, dt. 15.6.2018 along with postal receipt, dt. 19.6.2018 Ex.B9- 3 return postal covers along with acknowledgment card.
I JUNIOR CIVIL JUDGE,
CITY CIVIL COURT, SECUNDERABAD.
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