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B.S Sadananda v. K.S Chinnappa
Structured Summary of the Opinion
Factual and Procedural Background
The plaintiff filed O.S. 56/94 seeking ejectment of the defendants and recovery of arrears of rent (Rs. 5,400 for April 1991 to March 1994 at Rs.150/month), future rents from April 1994 at Rs.150/month, and costs. The plaintiff alleged he purchased the suit property (0.15 acres with a tiled house in Survey No.1/33 of Nagaroor Village) by registered sale deed dated 7-2-1983 from Josephin Rodrigs and others and that the 1st defendant was a tenant under the vendor. According to the plaint, the plaintiff issued a notice dated 21-5-1983 calling upon the 1st defendant and his mother to pay rent to him; they did not comply. The 1st defendant replied with what the plaint describes as untenable allegations. The plaint further alleged that in November 1993 the 1st defendant sublet the property to the 2nd defendant at Rs.150/month without permission. The plaintiff issued a further notice dated 15-2-1994 calling the defendants to vacate and hand over possession and to pay rent arrears.
The defendants filed a common written statement admitting the plaintiff's ownership but denying issuance of the plaintiff's notice, asserting the 1st defendant perfected title by adverse possession, claiming earlier tenancy existed at Rs.15/month prior to May 1979 and that from June 1979 the 1st defendant and his mother lived with intention to own, and asserting the suit was barred by time and termination of tenancy invalid.
At trial, issues were framed. The plaintiff examined himself as PW 1 and produced exhibits P1–P9. The defendants examined the 1st defendant as DW1 and produced exhibits D1–D3. The trial Court (Munsiff, Somwarpet) by judgment and decree dated 21-3-1996 decreed the plaintiff's suit for ejectment, directed defendants to vacate and deliver possession within a month, held tenancy was duly terminated and the suit was in time, awarded arrears of rent against the 1st defendant, and left future rent claims to a separate suit.
The defendants appealed (R.A. 15/96) to the Civil Judge (Senior Divn.), Madikeri; the first appellate Court by judgment and decree dated 9-10-2003 dismissed the appeal and confirmed the trial Court's judgment. The defendants then preferred the present appeal, which was admitted on 29-6-2005 on the substantial question of law stated below.
Legal Issues Presented
- Whether the judgment and decree passed by the first appellate Court is perverse and arbitrary for non-consideration of oral and documentary evidence on record and contrary to law?
Arguments of the Parties
Appellant's Arguments
- The courts below erred in holding the suit was not barred by time; the earlier notice dated 21-5-1983 determined the tenancy and, consequently, the suit filed thereafter was beyond 12 years and barred by limitation.
- The issuance of the later notice dated 15-2-1994 did not amount to a waiver of the earlier notice; therefore the cause of action arose from the earlier notice and the suit is time-barred.
- The first appellate Court failed to consider the oral and documentary evidence on record and did not consider other points that arose for determination.
- Reliance was placed on Punjab High Court authority (AIR 1953 Punjab 243 — Basheshrnath v. Delhi Improvement Trust) for the proposition that a subsequent notice to quit is of no effect unless a new tenancy can be inferred, and on Supreme Court authority (AIR 2001 SC 2171 — Madhukar v. Sangram) and this Court's decision (ILR 1996 Kant 2156 — Puttegowda v. Puttaswamygowda) for the principle that the first appellate Court should/has power to consider oral and documentary evidence.
- The appellant originally advanced a contention of adverse possession but, before the first appellate Court, that contention was given up and only limitation was pressed.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| AIR 1953 Punjab 243 (Basheshrnath v. Delhi Improvement Trust) | Where a notice to quit has been given, a subsequent notice to quit is of no effect unless it can be inferred that a new tenancy was treated after expiry of the first notice; a subsequent notice does not waive the first notice in absence of proof. | The appellant relied on this authority to argue that the second notice did not waive the first. The Court held this decision was not helpful to the appellant in the present facts and did not accept the submission that the second notice did not waive the first. |
| AIR 2001 SC 2171 (Madhukar v. Sangram) | Reinforces that the first appellate Court should consider oral and documentary evidence on record and is final on questions of fact. | The appellant relied on this authority to contend the first appellate Court failed to consider evidence. The Court considered the reliance but found that, as the appellant had confined his case to limitation at the first appeal (having given up adverse possession), the question of failing to consider oral and documentary evidence did not arise. |
| ILR 1996 Kant 2156 (Puttegowda v. Puttaswamygowda) | Holds that the first appellate Court has power to go into both oral and documentary evidence and that overlooking oral evidence may require setting aside for a fresh hearing. | The appellant relied on this decision. The Court noted the principle but concluded it was not helpful because the appellant had limited his first appeal to the question of limitation, and the appellate Court had adjudicated that question. |
| AIR 1971 SC 102 (Tayabali Jaferbhai Tankiwala v. Asha & Co.) | Interpreting Section 113 of the Transfer of Property Act: where a first notice to quit expires and the tenant remains, and the landlord issues a second notice demanding rent for the period between first and second notice, the first notice is waived and tenancy treated as subsisting. | The first appellate Court relied on this authority and Section 113 (illustration (b)) to hold that issuance of the second notice (dated 15-2-1994) amounted to waiver of the earlier notice and, therefore, the suit filed on 20-4-1994 was within the period stipulated by Article 67 of the Limitation Act. The present Court accepted that application and found no merit in the appellant's contrary contention. |
Court's Reasoning and Analysis
The Court heard the learned counsel for the appellant on the substantial question of law. The analysis proceeded in the following steps, as recorded in the opinion:
- The Court noted that before the first appellate Court the appellant's counsel had abandoned the contention of perfection of title by adverse possession and confined arguments solely to the question of limitation.
- The first appellate Court had considered Section 113 of the Transfer of Property Act (specifically illustration (b)) and the Supreme Court decision in AIR 1971 SC 102 (Tayabali Jaferbhai Tankiwala v. Asha & Co.), concluding that issuance of the second notice dated 15-2-1994 amounted to a waiver of the earlier notice, thereby treating the tenancy as subsisting.
- Given the waiver effected by the second notice, the Court observed the suit filed on 20-4-1994 fell within the period prescribed by Article 67 of the Limitation Act and was therefore in time.
- The Court considered the authorities relied upon by the appellant (Punjab High Court AIR 1953 and other precedents relating to appellate consideration of evidence) but found them not helpful to the appellant on the facts before it because the waiver analysis controlled and because the appellant had limited his appeal to the limitation issue on first appeal.
- The Court reiterated that the first appellate Court is conclusive on questions of fact; it is not obliged to restate the trial Court's reasoning fully when confirming the trial Court's decision. As the appellant had conceded away the adverse possession point at first appeal, the complaint that the appellate Court did not consider oral and documentary evidence did not arise in the Court's view.
- On these bases, the Court answered the substantial question of law in the negative and proceeded to dismiss the appeal.
Holding and Implications
Holding:
Appeal dismissed.
Implications and direct consequences:
- The judgment and decree dated 9-10-2003 of the Civil Court (Senior Division), Madikeri in R.A. 15/96 (which dismissed the appeal and confirmed the judgment and decree of the Court of Munsiff, Somwarpet in O.S. 56/94 dated 21-3-1996) are confirmed.
- The appellant (1st defendant) is granted six months from the date of the present order to quit and hand over vacant possession of the schedule premises to the plaintiff-respondent.
- There shall be no order as to costs.
- The opinion does not purport to set or establish any new legal precedent beyond application of existing statutory provision (Section 113, Transfer of Property Act) and established case law; the decision confirms the application of those authorities to the facts of this case.
This appeal by the 1st defendant is directed against the judgment and decree passed by the Court of Civil Judge (Senior Divn.), Madikeri, in R.A 15/96 dated 9-10-2003, dismissing the appeal and confirming the judgment and decree passed by the Court of Munsiff, Somwarpet, in O.S 56/94 dated 21-3-1996, decreeing the suit of the plaintiff for ejectment of the defendants.
2. The essential facts of the case leading up to this appeal with reference to the rank of the parties before the trial Court are as follows:
Plaintiff filed O.S 56/94 against the defendants seeking for a judgment and decree to vacate and hand over possession of the schedule property including the house and for arrears of rent of Rs. 5,400/- for the past 3 years at the rate of Rs. 150/- p.m from April 1991 to March 1994, future rents at the rate of Rs. 150/- p.m from April 1994 onwards and for costs. It is averred in the plaint that the plaintiff purchased 0.15 acres of house site along with a tiled house in survey No. 1/33 of Nagaroor Village from Josephin Rodrigs and others under a registered sale deed dated 7-2-1983; the 1st defendant was a tenant under the vendor. Immediately after purchase, plaintiff issued a notice dated 21-5-1983 to the 1st defendant and his mother calling upon them to pay rents to him, but they did not comply with it. The 1st defendant issued a reply putting some untenable allegations. It is further averred that the father of 1st defendant became a tenant under the plaintiff's vendor; 1st defendant has not paid rents since the date of purchase. In the month of November 1993, the 1st defendant illegally sublet the schedule property including the house to the 2nd defendant on a monthly rent of Rs. 150/- without the plaintiffs permission; plaintiff caused a notice dated 15-2-1994 to the defendants calling upon them to vacate and hand over vacant possession of the schedule property to him and to pay the arrears of rent, but the 1st defendant replied by putting some untenable averments. The 2nd defendant has also replied with home untenable allegations.
The suit was resisted by the defendants by filing common written statement admitting ownership of the plaintiff over the schedule property, but denying the 1st defendant got issued reply to the notice of the plaintiff; the 1st defendant has perfected his title over the suit property by adverse possession and wherefore the plaintiff is not entitled to claim possession as the original owner of the property, he has leased it to the 2nd defendant; 1st defendant was tenant under the predecessors in-title of the plaintiff on a monthly rent of Rs. 15/- prior to May 1979 and from June 1979, himself and his mother started living there with an intention of owing the same; the suit is barred by time as the termination of tenancy is not valid and wherefore the suit is liable to be dismissed.
3. The trial Court framed issues on the basis of the pleadings of the parties. On behalf of the plaintiff, the plaintiff was examined as PW 1 and got marked Exs. P1 to P9. On behalf of the defendants, 1st defendant was examined as DW1 and Exs. D1 to D3 were got marked. The trial Court after considering the contentions of the parties and the material on record, held that the tenancy had been duly terminated, the suit was in time and accordingly decreed the suit of the plaintiff by judgment and decree dated 21-3-1996 and directed the defendants to vacate and deliver vacant possession of the schedule property to the plaintiff within a month from that date. It was further held that the 1st defendant shall pay arrears of rent to the plaintiff and the plaintiff was at liberty to claim future rents by filing a separate suit. Being aggrieved by the said judgment and decree, the defendants preferred R.A 15/96 on the file of Civil Judge (Senior Divn.), Madikeri. The first appellate Court by judgment and decree dated 9-10-2003, dismissed the appeal, confirming the judgment and decree passed by the trial Court. Being aggrieved by the said judgment and decree, the defendants have preferred this appeal which has been admitted on 29-6-2005 for consideration of the following substantial question of law:
Whether the judgment and decree passed by the first appellate Court is perverse and arbitrary for non consideration of oral and documentary evidence on record and contrary to law?
4. I have heard the learned counsel for the appellant on the abovesaid substantial question of law.
5. The learned counsel for the appellant submitted that the courts below were not justified in holding that the suit filed by the plaintiff is not barred by time and there was no waiver of the earlier notice determining the tenancey by issue of fresh notice dated 15-2-1994. He submitted that in view of the fact that tenancy has been determined by issue of the earlier notice dated 21-5-1983, the suit filed is beyond 12 years from the termination of lease and therefore, barred by time; the first appellate Court has not considered the oral and documentary evidene on record and has failed to consider the other points that arose for determination before it. He relied on the decision of the Punjab High Court reported in AIR 1953 Punjab 243 (Basheshrnath v. Delhi Improvement Trust) wherein it has been held that:
“Where a notice to quit has been given, a subsequent notice to quit is of no effect unless it can be inferred from other circumstances that a new tenancy has been treated after the expiry of the first notice, nor does it amount to waiver of the first notice in the absence of any proof thereof.”
The learned counsel has also placed reliance on the decision of the Hon'ble Supreme Court reported in AIR 2001 SC 2171 : (2001 AIR Kant HCR 2672) (Madhukar v. Sangram) wherein it has been held that ‘the first appellate Court should consider the oral and documentary evidence on record as it is the final Court on the question of fact’. Reliance has also been placed on the decision of this Court reported in ILR 1996 Kant 2156 (Puttegowda v. Puttaswamygowda*) wherein it is held that ‘the first appellate Court has power to go into both oral and documentary evidence and where first appellate Court overlooked oral evidence, the judgment is liable to be set aside for a fresh hearing’.
6. I have considered the contentions of the learned counsel with reference to the principles laid down in the decisions cited by him regarding powers of the first appellate Court.
7. It is clear from the perusal of the judgment of the first appellate court that the learned counsel for the appellant gave up the contention regarding perfection of title by adverse possession and submitted arguments regarding limitation only. The first appellate Court having regard to the decision of the Supreme Court reported in AIR 1971 SC 102 has held that issuance of the second notice on 15-2-1994 would amount to waiver of the earlier notice and therefore the suit filed on 20-4-1994 within 12 years from the date of the second notice is in time in view of Article 67 of the Limitation Act. It is clear from the provisions of Section 113 of the Transfer of Property Act that notice given under Section 111(h) is waived with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting. Illustration (b) is as follows:
(a) ………..
(b) A, the lessor gives B the lessee, notice to quit the property leased. The notice expires and B remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived.
8. The provisions of Section 113 of the T.P Act and illustration (b) came up for consideration before the Hon'ble Supreme Court in a case reported in AIR 1971 SC 102 (Tayabali Jaferbhai Tankiwala v. Asha & Co. In the said case, the Hon'ble Supreme Court has laid down that in view of the provisions of Sec. 113 and illustration (b), when the first notice to quit is issued and the tenant has not vacated the premises, the second notice is issued after a year demanding rent for the period between the first and second notice, the first notice was waived and the landlord had treated the tenancy as subsisting. In the present case, there is no merit in the contention of the learned counsel for the appellant that of the issuance of Ex. D1, second notice does not waive the first notice and therefore, the suit is barred by time. In the circumstances, the decisions of the Hon'ble Supreme Court and Punjab High Court are not helpful to the appellant. Wherefore the finding of the Courts below that the suit filed by the plaintiff is in time is justified.
9. It cannot be disputed that the first appellate Court is the final Court on the question of fact and law. It is well settled that the appellate Court while confirming the judgment and decree passed by the trial Court need not reiterate the reasoning of the trial Court. Paragraph 7 of the judgment of the first appellate Court clearly shows that the learned counsel for the appellant conceded that he would not press his claim in respect of adverse possession and would argue only in regard to the question of limitation. Therefore, the question of considering the oral and documentary evidence on record does not arise as the issue of limitation has been gone into by the appellate Court. Accordingly, I answer the substantial question of law in the negative and proceed to pass the following order:
The appeal is dismissed. The judgment and decree dated 9-10-2003 passed by the Civil Court (Senior Divn.), Madikeri, in R.A 15/96 dismissing the appeal and confirming the judgment and decree passed by the Court of Munsif, Somwarpet, in O.S 56/94 dated 21-3-1996 is confirmed. The appellant is however, granted six months time from today to quit and hand over vacant possession of the schedule premises to the plaintiff-respondent. There shall be no order as to costs.
Appeal dismissed.
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