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Judgment
The Hon''ble Mr. Justice Huluvadi G. Ramesh
Appeal is by the Defendants/tenants challenging the order parsed by the XXVI Addl. City Civil Judge, Mayo Hall, Bangalore in OS 15278/2004 in a suit filed for ejectment.
According to the Plaintiff, one Ramakrishna Raju who is the original landlord had let out the premises to the father of the Defendants on a monthly rent under an unregistered) lease deed of 1987 and rent was enhanced from time to time and they were paying Rs. 3,000/- p.m. After the death of the original landlord, Plaintiff is collecting the rents in the alternative being one of the sons of Ramakrishna Raju. It is also the case of the Plaintiff, on the death of the Defendants'' father, his children also continued in possession. After issuing notice of ejectment terminating the tenancy, suit came to be filed. The matter was contested contending that there exists no relationship of landlord and tenant. There is a dispute among the brothers and also the suit is filed by them based on the Will executed. The Will has also been contested. Another suit is also filed by other Plaintiffs seeking for ejectment as such, the suit is not maintainable and also contended that there is a genuine dispute as to relationship of landlord and tenant. The trial court, based on the pleadings, raised as many as four issues for consideration. After inquiry, the trial court while ordering for ejectment, ordered to pay damages of Rs. 200/- per day from the date of the suit till handing over possession as against which, this appeal on various grounds.
Heard the counsel representing the parties.
Learned Senior Counsel has referred to the decision of the Supreme Court in the case of D. Satyanarayana Vs. P. Jagadish, to contend that rule of estoppels does not apply to the case on hand as the property was not originally let out by the Plaintiff and also to contend that as per Section 116 of the Evidence Act, estoppels does not apply when the tenant is under the threat of eviction by a person claiming title. Learned Counsel has also relied on the decision in the case of Subhash Chandra Vs. Mohammad Sharif and Others, , once again on the issue of estoppels.
It is the contention of the learned senior Counsel that two sets of persons are fighting for possession by filing suits - one is disposed of and another is pending. Based on the Will alleged to have been executed by the original landlord Ramakrishna Raju, parties are at loggerheads claiming possession. Notice issued for ejectment is improper and she order of the trial court cannot be accepted as there is no termination of tenancy and when there is a genuine dispute as to relationship of landlord and tenant and the title of the Plaintiffs themselves has not been established.
Counsel for the Respondent submitted, the trial court has rightly considered the case of the Plaintiff that he is a co-owner and has got a right to file the suit. After issuing legal notice when tenancy is terminated, rightly the trial court has passed an order of ejectment which does not call for interference. Further according to him, it is not in dispute that the Plaintiff is a co-owner either in this suit or the other suit pending and accordingly contended that suit is maintainable and Appellants cannot dispute the title. Though the Plaintiffs may or may not succeed in the Will, but ultimately being the children of Ramakrishna Raju, they are co-owners and admittedly they are also collecting rent and are entitled to maintain the suit.
In the light of the arguments advanced the points for consideration are -
Whether the trial court is justified in passing an order of ejectment; Whether the trial court committed an error in holding that suit is maintainable by the Plaintiffs as co-owners and,
What order.
Might be the suits were filed by the parties based on the alleged Will. Whether they filed or not, what remains is, they are born to Ramakrishna Raju and there is some differences amongst the brothers. What is not in dispute is, the rent is being collected by the Plaintiff for some time and also by the other Plaintiffs and there exists a relationship of landlord and tenant as rightly held by the trial court. So far as title is concerned, it is also settled principle that to seek possession, any co-owner can maintain the suit. If there is any dispute inter se, that would be a separate issue to be dealt else where. As far as payment of rental is concerned, as per Order 20 Rule 12, Code of Civil Procedure, manse profits has to be calculated. Further, by the impugned order of February 2008, three months time was granted to the Defendants to vacate and hand over possession to the Plaintiff. The Appellants had also sufficient time i.e., nearly 3 1/2 years from the time the order of ejectment was passed in the suit. In the circumstances, even on examining the admitted facts by the Appellants/Defendants themselves and when it is their case since 1956 they are there and though they have denied any agreement during 1987 or so, but the fact is, they admitted the relationship of landlord and tenant with Ramakrishna Raju, father of the Plaintiffs. Such being the case and when there is termination of tenancy, the tenants being third parties to the original ownership, to intervene in the dispute amongst the brothers inter se seeking, right over the property either by enhancement or otherwise, their right is only restricted. The trial court having held that there is due termination of tenancy, rightly has passed an order of eviction which does not call for interference.
Appeal is dismissed. Six months time is granted to the Appellants to vacate and hand over vacant possession of the premises subject to filing an undertaking to this effect. The undertaking shall be filed within four weeks before the trial court. There shall also be an undertaking to pay all arrears of rental at the rate of Rs. 200/- per day from the date of suit till deposit. Further, if the Defendants are not inclined to pay me amount, the same shall be deposited in court deposit and the Plaintiff herein and his brothers who have filed the other suit can very well claim the amount/apportionment, according to law. Parties to bear their own costs.