When sub tenant has failed to prove that he has become direct tenant of original landlord?
Karnataka High CourtMrs. Fahima Irfan Patel vs Mr. Troop Basheer Ahmed on 9 April, 2018
The plaintiff in O.S. 16617/2003 on the file of the Additional City Civil Judge (CH.20) has preferred this appeal challenging the judgment dated 31.10.2014 dismissing the said suit.
2. For the sake of convenience, the parties are referred with respect to their position in the suit throughout the discussion. The pleadings in a nutshell are as follows : -
The suit property is premises bearing No. 86/2, Wheelers Road, Cox Town, Bengaluru, as described in the plaint schedule. One Mr.Eshwar and Mr.Mukund are the owners of this premises. They leased thispremises to the plaintiff who in turn leased it to the defendant. The defendant was chronic defaulter in paying the rents at the rate of Rs.11,000/- per month and fell in due of a sum of Rs.1,54,000/- from May 2002 to June 2003. After adjusting the arrears from the advance of the rent amount, the defendant was still found due in a sum of Rs.64,000/-. Therefore, the plaintiff got issued a legal notice to the defendant on 9.7.2003 and demanded the vacant possession of the suit property from him. The defendant received this notice on 11.7.2003. On 1.8.2003 at about 7.00 PM, the original owners Mukund and Eshwar and other well wishers intervened and as a result, a compromise was arrived at. The defendant was given six months time to pay arrears of rent of Rs.64,000/- on or before February 2004 and the defendant agreed to quit and deliver vacant possession of the suit premises to the plaintiff on or before 31.10.2003. Thus, the defendant became a licencee after this compromise. On 17.10.2003 the plaintiff terminated the licence of the plaintiff by issuing a legal notice. On 1.11.2003 when the plaintiff wanted to take possession of the suit premises, the defendant and his supporters prevented her from taking possession of the suit premises and other articles given to the defendant by the plaintiff for the purpose of running a restaurant. The police also declined to interfere when she contacted them. Therefore, in these premises the plaintiff filed the suit seeking ejectment of the defendant from the suit premises and damages @ Rs.1,000/- per day, besides licence fee of Rs.22,000/-.
3. In the written statement, the defendant denies all the averments of the plaint and his specific contention is that on 4.2.1994 the defendant was inducted as sub-tenant by the plaintiff in respect of the suit premises and that the plaintiff promised to regularize the lease by getting the owners of the suit premises executing a lease agreement directly in his favour. Accordingly, in the month of May 2002, the plaintiff surrendered her leasehold rights over the suit premises to the owners. A fresh lease agreement came into existence between the owners and the defendant and that the latter started paying rents directly to the owners. Therefore, there does not exist relationship of landlord and tenant between the plaintiff and the defendant. The defendant also contended that he was not due to pay any amount to the plaintiff towards rent. He denied that he obstructed the plaintiff from taking the suit premises. Another specific plea taken by the defendant is that plaintiff is a foreign national and therefore she is prevented from holding any rights over immovable property in accordance with the provisions of FEMA Act.
4. The trial court framed the following issues :-
"1. Does plaintiff prove the defendant is her tenant under the lease agreement dated 07/12/1998 in respect of plaint schedule premises?
2. Does plaintiff further prove the defendant is liable to pay arrears of license fee amounting to Rs.22,000/-?
3. Does plaintiff further prove the defendant is liable to pay damages at the rate of Rs.1,000/- per day from the date of filing of this suit?
4. Does defendant prove the suit of the plaintiff is not maintainable, because the plaintiff is a foreign national and is prevented under the provisions of FEMA Act from holding any rights over immovable property in India?
5. Whether the court fee paid by plaintiff is sufficient?
6. Whether the plaintiff is entitled for relief claimed?
7. What order or decree?"
5. Two witnesses P.Ws 1 and 2 adduced evidence from the plaintiff's side and got marked four documents Exs.P1 to P4. Two witnesses D.Ws 1 and 2 adduced evidence from defendant's side and did not produce any document. The trial court appreciated the evidence and came to conclusion that suit would deserve dismissal. Hence, this appeal by the plaintiff.
6. Heard the arguments of the appellant/plaintiff's counsel and the respondent/defendant's counsel. I have perused the pleadings, the evidence, both oral and documentary, and the judgment of the trial court. The points urged by the learned counsel would be referred during discussion. The following points arise for discussion :-
i. Whether the findings of the trial court judge that he sub-lease between the plaintiff and the defendant has not been proved are correct?
ii. Has the learned trial court judge correctly held that the suit is maintainable? iii. Should the trial court have granted a decree for ejectment of the defendant from the suit premises?
iv. What order? POINT NO.1:
7. The learned trial court judge has answered issue No.1 in negative. The error appears to have crept in while framing issues. The learned counsel for appellant /plaintiff argued that the trial court judge has missed the point that the defendant does not dispute the fact of suit premises being sub-leased to them.
Their specific contention is that the plaintiff had promised the defendant that she would get the lease regularized by getting a lease deed executed by the original owners in his favour and accordingly in May, 2002, the plaintiff surrendered her lease hold rights to original owners and that the defendant started paying rent to the owners. It is his argument therefore that the trial court should not have required the plaintiff to prove the sub-lease between the plaintiff and the defendant.
8. The learned counsel for the defendant argued that issue No.1 was properly framed and the trial court's findings on this issue are correct. He argued that the initial burden was on the plaintiff to prove that the defendant was her sub-tenant.
9. The trial court has held that neither PW-1 nor PW-2 has produced any document to prove that Eshwar Prasad and Mukund Das leased the suit property to him on 04.02.1994. There is no evidence to prove that suit property was leased to her for life, and therefore sub- lease by plaintiff in favour of defendant does not get established at all.
10. The above findings are undoubtedly incorrect, and this is due to placing the burden of proof on the plaintiff. The very stand taken by the defendant in the written statement shows that he admits to have taken the suit premises on sublease from the plaintiff. And his specific plea is that he became a direct tenant under the original owners. In the light of the pleading of the defendant, the issue should have been framed in such a way as requiring proof by the defendant regarding surrender of lease by plaintiff and his becoming a direct tenant of the original owners. Section 103 of the Indian Evidence Act is applicable here. The defendant wishes the court to believe that he became direct tenant of the original owner and therefore he must prove it. If he fails to prove, obviously plaintiff succeeds. The trial court has missed to notice this aspect.
11. Even otherwise, if the evidence is analyzed, it can be seen that suggestions are given to PW-1 and PW- 2 that there was surrender of lease by the plaintiff in the year 2002 and that the original owners executed a lease deed on 07.05.2002 in favour of defendant. These suggestions are of course denied by PW-1 and PW-2, but they bind the defendant, in that the defendant admits the existence of lease between owners and the plaintiff. DW-2 is one of the owners; in his examination- in-chief itself he has stated that on 04.02.1994, he and his brother executed a lease deed in favour of plaintiff for a period of 8 years, and after lapse of three years term, it was extended periodically under mutual agreement. Therefore this being the actual evidence, the findings of the trial court on issue No.1 is incorrect.
12. Now what needs to be further examined is whether the defendant has been able to prove his specific plea. Defendant who has adduced evidence as DW-1 has produced the lease deed dated 07.05.2002 as per Ex.D.1. Firstly this lease deed cannot be looked into as it is an unregistered instrument; since the duration of lease is three years, it should have been registered. Secondly, even if it can be looked into for collateral purpose of surrender of lease by the plaintiff, that aspect does not get established. In Ex.D1, there is a clear reference to suit premises being leased to plaintiff and the defendant being inducted as sub- tenant by the plaintiff. There is a recital that the erstwhile lessee requested the lessor i.e., the original owners to execute the lease agreement in favour of defendant. If this were to be the agreement reached among the original owners, the plaintiff and the defendant, the plaintiff should have been a party to Ex.D.1. She is not a party to the said document. Therefore the defendant cannot say that by virtue of Ex.D.1 he became a direct tenant under the original owners.
13. To prove that he is a tenant under the original owners, the defendant has produced rent paid receipts which are collectively marked as Ex.D.2. These receipts are purported to be signed by one of the original owners viz., Eshwar Prasad. The learned counsel for the plaintiff argued that these receipts are all created at a time by the defendant to show that he is a tenant under the original owners. In some of the receipts the amount has not been mentioned. In Ex.D.1 there is a clause or stipulation that provides for enhancement of rent by 10%. But these receipts are for the period 2002 to 2012; there was no enhancement of rent at all. So all these aspects make these receipts unbelievable. On the other hand the learned counsel for the defendant argued that theses receipts were issued by one of the owners, i.e., DW-2 - Eshwar Prasad. Merely for the reason that there was no enhancement of rent, the receipts cannot be rejected.
14. As rightly argued by the learned counsel for the appellant, these receipts are difficult to be relied upon to accept the defendant's contention that he became direct tenant under the owners. Apart from the reasons pointed out by the learned counsel for the appellant/plaintiff, there are two more reasons which make these receipts unbelievable. When the defendant adduced evidence for the first time and got marked the lease deed as per Ex.D.1 on 18.11.2011, he did not produce these rent receipts. After the cross- examination of DW.1 was over, on 21.06.2013 he produced 115 rent receipts at a time and all these documents were marked as Ex.D.2. If he had these receipts with him when he adduced evidence and got marked Ex.D.1, he could have produced these documents at that time itself. More than this the defendant examined in his support Eshwar Prasad, one of the original owners of the suit premises as DW-2. DW.1 has stated that these receipts bear the signature of Eshwar Prasad. But when DW.2 was examined these receipts were not shown to him. It was necessary that these receipts should have been shown to him and he should have affirmed his signature on those receipts if really they were issued by him. Therefore these rent receipts do not help the defendant and consequently the inference to be drawn is that there was no surrender of tenancy by the plaintiff and that the defendant was inducted as a sub-tenant by the plaintiff.
15. The learned trial judge has held that because lease between the original owners and the plaintiff has not been proved in view of non-production of lease agreement dated 04.02.1994, the subsequent sub-lease to the defendant also does not get established. He has ignored the admission found in the written statement and the testimonies of DW-1 and DW-2. The entire approach of the trial court is very rhetorical. Point No.1 is answered in negative.
16. Another contention taken by the defendant/respondent is that the plaintiff being of Pakistan origin cannot own and possess property in India. Since it is also contended in the written statement that the plaintiff is a foreign national and cannot hold property under the provisions of the FEMA Act, an issue with regard to maintainability of the suit is raised. The trial court has answered this issue in the negative giving a finding that defendant has failed to produce acceptable evidence in this regard.
17. The learned counsel for the defendant raises a new point by referring to the Enemy Property Act, 1968. His argument is that the plaintiff / appellant was born in Pakistan and in view of Enemy Property Act, 1968 and Enemy Property (Amendment and Validation) Act, 2017 and Foreign Exchange Management Act, she is barred from owning or holding any property in India and barred from prosecuting any case in relation to such property. The learned counsel for the appellant counters this argument by submitting that the plaintiff has acquired Indian citizenship. To make the provisions of Enemy Property Act, an enquiry must be held to ascertain whether the property belongs to enemy subject or not. If it is found that the property belongs to enemy subject a certificate must be issued and thereafter the property vests with the custodian. In this case no such enquiry was held. Moreover the actual owners of the suit premises are one Eshwar Prasad and Mukundan. PW.1 has clearly stated that he has not produced any document and therefore this contention of the defendant should fail.
18. It is elicited from the DW-1 in the cross examination that he has no documents to show that the plaintiff is a citizen of a foreign country. However PW-1 in the cross examination admits that by birth she is not an Indian, but she has also given an answer that she acquired Indian citizenship in the year 1989. If according to defendant plaintiff is a enemy subject, it is for him to prove firstly that she is from enemy country and that she is an enemy subject. No such proof is produced. Even if the case is examined in the light of the specific contention taken by the defendant, according to Section 5 (A) of the Enemy Property (Amendment and Validation) Act 2017, before a property vests with the custodian, he must hold an enquiry and thereafter declare that the property belongs to enemy or enemy subject. He must issue a certificate to this effect and thereafter the said property vests with the custodian. It is for the defendant to prove that there was vesting with the custodian. Therefore this contention of defendant should fail. This point is answered in affirmative.
19. The plaintiff has sought ejectment of the defendant. The trial court having answered issue No.1 in negative declined to grant the relief of ejectment of the defendant from suit premises. If the entire case is examined, it is found that defendant was inducted by the plaintiff as sub-tenant of the suit premises. By issuing notice as per Ex.P.1 dated 09.07.2003, the plaintiff terminated the lease of the defendant and called upon the latter to quit and deliver vacant possession of the suit premises to her. In the plaint it is stated after issuance of notice as per Ex.P.1, the defendant met the plaintiff on 01.08.2003 at 7.00 p.m. along with original owners and at that time a settlement was arrived at. It was agreed that entire arrears of rent should be adjusted from the advance amount and that the plaintiff and her husband permitted the defendant to remain in the suit premises till end of October, 2003. Therefore according to plaintiff, the defendant became a licensee under her in respect of the suit premises. Again on 17.10.2003 the plaintiff issued a notice to the defendant and terminated the license. 2nd notice is marked as Ex.P.4. For service of notice as per Ex.P.1 the plaintiff has produced the .postal receipt as per Ex.P.2 and the postal acknowledgement as per Ex.P.3. No document is produced in proof of service of notice as per Ex.P.4. DW.1 in the cross examination admits to have received the notice as per Ex.P.1. He also says that he replied to this notice but he has not produced the copy of the reply notice. If defendant had issued reply, the plaintiff would have produced it. Now from these two notices the inference that can be drawn is that after issuance of notice as per Ex.P.1, the lease was validly terminated by the plaintiff. In spite of the fact that no documentary proof is produced by the plaintiff for service of notice as per Ex.P.4 on the defendant, the first notice itself can be taken as sufficient to hold that tenancy was validly and legally terminated. Therefore the defendant had to quit the suit premises and deliver its vacant possession to the plaintiff. This point is answered in affirmative.
20. The above discussion takes me to conclude that the plaintiff is entitled to decree of ejectment. In addition, the plaintiff has claimed damages a the rate of Rs.1,000/- per day after termination of the lease. No document is produced as to on what basis the plaintiff can claim damages at this rate. Therefore enquiry according to Order 20 Rule 12 CPC can be ordered.
21. From the above discussion I come to conclusion that the impugned judgment is not sustainable. It needs to be interfered with. Hence the following:
ORDER i. Appeal is allowed with costs. ii. Judgment and decree dated 31.10.2014 in O.S.No.16617/2003 on the file of XXVI Addl. City Civil and Session Judge, Mayo Hall is set aside. The suit is decreed.
iii. Defendant is directed to vacate the suit premises and deliver its vacant possession to the plaintiff within three months from today. iv. Enquiry as regards damages claimed by the plaintiff is ordered according to Order 20 Rule 12 CPC.