B. Manohar, J. - Appellant being the defendant has filed this appeal challenging the judgment and decree dated 20th March, 2013 made in
R.A.No.4 of 2009 on the file of the Additional Senior Civil Judge, Udupi dismissing the appeal and confirming the judgment and decree dated 29th
November, 2008 made in O.S.No.215 of 2002 passed by the Principal Civil Judge (Jr.Dn.), Udupi decreeing the suit filed by the plaintiff directing
the defendant to vacate and hand over the vacant possession of the plaint schedule property and arrears of rent and mesne profits.
2. For the sake of convenience and better understanding of the case, the parties are referred to as plaintiff and defendants as arrayed before the
trial Court.
3. The first respondent-Jamia Maszid in this appeal had filed a suit seeking for eviction of the defendants and also sought for vacant possession of
the suit schedule property. In the plaint, it was contended that the first defendant was the monthly building tenant under the plaintiff in respect of a
non-residential shop premises bearing Municipal D.No. 10-4-36 (hereinafter referred to as �the suit schedule property�) on an agreed rent of
Rs.600/- p.m. and electricity charges. The tenancy of the first defendant is a oral tenancy, which commences on the 1st day of each calendar
month and expires on the last day of each calendar month. The first defendant was carrying on Gujari, firewood and coal business in the said
premises for last over forty years and using the vacant space appurtenant to the plaint schedule premises to store firewood and gujari articles with
the permission of the plaintiff though it was not leased to him. The first defendant got retired from his business and he was residing in his native
place at Kasaragod, but he unlawfully sub-let the suit schedule premises to the second defendant without the permission of the plaintiff. At present
the second defendant is running the similar business and he is in possession of the plaint schedule premises and paying higher rent to the first
defendant. The first defendant is in arrears of rent from 1-9-2001 to 28-2-2002 aggregating Rs.3,600/-. In view of that, the plaintiff issued a quit
notice on 12-07-2002 terminating the tenancy, calling upon the first defendant to surrender the vacant possession of the plaint schedule premises
on 31-08-2002 free from sub-tenancy created in favour of the second defendant. The quit notice was served to the first defendant at his
Kasaragod address and the second defendant was served at the suit schedule premises. Immediately after receipt of the quit notice, the first
defendant approached the plaintiff and requested to continue his tenancy in respect of suit schedule premises on a higher rent. But, he has denied
creation of sub-tenancy in favour of the second defendant. However, the plaintiff has not agreed for the same. Subsequently, the first defendant
issued reply notice on 27-08-2002 denying the several contentions taken in the quit notice. Further contended that Sri.B.K.Abdul Khader, ad hoc
managing committee has no power to terminate the tenancy. Further he has not sub-let the suit schedule premises whereas the second defendant
working under him as a Manager and he had taken the premises initially for doing the scrap business, and he is continuing the very same business.
Further, though the first defendant offered the rent, the plaintiff has not received the same and hence sought for dropping of the proceedings.
Further it was contended that the plaintiff-Maszid is a religious institution as defined under Section 2(3)(a)(ii) of Karnataka Rent Act, 1999
(Karnataka Act No.34 of 2001) and none of the provisions of the said Act are attracted to the lease. Hence the plaintiff filed the suit with the
above prayer.
4. In response to the notice issued by the trial Court, the defendants 1 and 2 entered appearance through their advocates. However, the first
defendant alone filed written statement denying some of the averments made in the plaint. In the written statement, the first defendant has denied
that the plaintiff Jamia Maszid is a religious institution. The President of adhoc committee has no power to issue quit notice and terminate the
tenancy. The quit notice is not in accordance with the provisions of the Act. However, it was admitted that he was a building tenant of non-
residential shop premises. The premises was taken for doing gujari, firewood and coal business. Further appurtenant land measuring about 4 cents
was also leased in favour of the first defendant. The said land is being used to store the firewood, coal and gujari articles. The tenancy is a monthly
tenant. He has not sub-let the premises to the second defendant. The second defendant is a Manager working under him and he is paying salary to
him at Rs.2,500/- p.m. Though he was residing at Kasaragod he was frequently visiting Udupi and taking care of the business. The plaintiff refused
to accept the arrears of rent from 1-9-2001 to 28-2-2002 amounting to Rs.3,600/-and sought for dismissal of the suit.
5. On the basis of pleadings of the parties, the trial Court framed necessary issues.
1. Whether the plaintiff proves that the 1st defendant is residing at Kasargod by subletting the suit premises to the 2nd defendant without his
consent?
2. Whether the 1st defendant proves that the 2nd defendant is his employee and he did not sublet the plaint premises to him and therefore the 2nd
defendant is not a necessary party?
3. Whether the 1st defendant proves that along with the plaint premises vacant land appurtenant to plaint premises is also let out to him by the
plaintiff and it is a part and parcel of the plaint premises?
4. Whether the plaintiff has validely terminated the tenancy of the first defendant?
5. Whether the plaintiff is entitled to arrears of rent and mesne profits as sought for?
6. Whether the plaintiff is entitled to vacant possession of the plaint schedule premises?
7. What order or decree?
6. The plaintiff in order to prove their case, examined the Administrator of the plaintiff as P.W. 1 and got marked the documents as Ex.P1 to
Ex.P10. On behalf of the defendants, the first defendant got examined himself as D. W. 1 and got marked the documents as Ex.D1 to Ex.D3.
7. The trial Court, after appreciating the oral and documentary evidence let in by the parties taking into consideration Ex.P3 quit notice dated 12-
07-2002 and other relevant records held issue Nos. 1, 4, 5, and 6 in the affirmative and issue Nos. 2 and 3 in the negative, consequently by its
judgment and decree dated 29-11 -2008 decreed the suit filed by the plaintiff directing the first defendant to vacate and hand over the vacant
possession of the suit schedule premises including the vacant land surrounding the plaint schedule premises within six months from the date of the
order. Further directed to pay the arrears of rent of Rs.3,600/- and also to pay mesne profit at the rate of Rs. 1,000/- p.m. from 1-9-2002 with
interest at 6% p.a. The defendant being aggrieved by the judgment and decree passed by the trial Court, preferred R.A.No.4 of 2009 taking
various contentions. The Lower Appellate Court, after considering the arguments addressed by the parties framed the following points for
consideration:
VERNACULAR MATTER
8. The Lower Appellate Court on re-appreciating the oral and documentary evidence held that there is no infirmity or irregularity in decreeing the
suit filed by the plaintiff. The first defendant has sub-let the suit schedule premises to the second defendant without the permission of the plaintiff.
Further only the suit schedule premises has been leased however appurtenant land has not been leased to the first defendant. Further, the
defendant is in arrears of rent and ordering mesne profits is in accordance with law and no ground is made out to interfere with the judgment and
decree passed by the trial Court. Accordingly the dismissed the appeal. Being aggrieved by the said judgment and decree passed by the Courts
below, this regular second appeal has been filed.
9. Sri. K. Chandranath Ariga, learned counsel appearing for the appellant contended that the judgment and decree passed by the courts below are
contrary to law. The finding of the Courts below that the first defendant has sublet the plaint schedule premises along with the business to the
second defendant is contrary to law. Though the first defendant was residing at Kasaragod, he can run the business at Udupi by engaging the
Manager under his supervision. The specific case of the appellant is that he had appointed the second defendant as Manager and paying salary of
Rs.2,500/- p.m., frequently, he or his sons were visiting Udupi and supervising the business. Hence at no stretch of imagination the second
defendant can be treated as sub-tenant of the appellant. Initially the premises was taken to do the scrap business and he had obtained the licence
on 22-7-2008 for running the scrap business. The entry made with regard to the occupier of the premises in the Tax register extract of the City
Municipality Udupi is made at the instance of the plaintiff. No value can be attached to the same. Further, the quit notice was issued in the
individual capacity of Haji B. K. Abdul Khader. He has no competency to issue the quit notice. The quit notice is defective. Hence, the tenancy
cannot be terminated and the judgment and decree passed by the courts below is contrary to law. The concurrent finding recorded by the Courts
below can be interfered with by this Court, if it is a perverse finding. In support of his contention, the learned counsel for the appellant relied upon
the judgment reported in AIR 1992 SC 1604 in the case of Jagadish Singh v. Nattbu Singh and sought for allowing the appeal by setting
aside the judgment and decree passed by the trial Court.
10. On the other hand, Sri. Anantha Mandagi, learned Senior counsel appearing for Sri. S Jagan Babu argued in support of the judgment and
decree passed by the trial Court and contended that there is no infirmity or irregularity in the judgment and decree passed by the courts below. Sri.
B.K. Abdul Khader, the President of the Managing Committee of Jamia Maszid is competent to issue quit notice. After following the procedure
prescribed under Section 106 of the Transfer of Property Act the quit notice has been issued and tenancy was terminated. Without the permission
of the Committee of Jamia Maszid, the first defendant had sub-let the suit schedule premises to the second defendant for the years 2002-03,
2003-04, 2004-05. The name of second defendant was shown as occupier of the suit schedule premises in the property tax register extract
maintained by the City Municipality. In fact, the quit notice issued to the first defendant has been served at the address at Kasaragod, whereas the
quit notice issued to the second defendant is at the suit schedule premises. That itself shows that the first defendant is not doing the business at the
suit schedule premises and he has sub-let the premises to the second defendant and he is continuing the business. The first defendant is in arrears of
rent from 1-9-2001 to 28-02-2002. The first defendant has not disputed the said aspect of the matter. Under Section 106 of the Transfer of
Property Act, the monthly tenancy can be terminated by issuing 15 days quit notice. Hence, the appellant has no right to continue in the premises
after terminating the tenancy. There is no infirmity or irregularity in the judgment and decree passed by both the Courts below. The finding
recorded by the lower appellate court is purely a question of fact and there is no substantial question of law to be decided in this appeal and sought
for dismissal of the appeal. In support of his contention, he relied upon the judgment reported in (2016) 3 SCC 78 in the case of Damodar Lai
v. Sohan Devi and others.
11. While admitting the appeal, this court has framed the following substantial question of law:
Whether both the courts were justified in ignoring the admission of PW.l regarding Ex.P.3 in accepting defendant No.2 as subtenant ?
12. I have carefully considered the arguments addressed by the learned counsel for the parties, perused the judgment and decree passed by the
courts below and oral and documentary evidence.
13. The records clearly disclose that the first defendant was the tenant of the premises door No. 10-4-36 belonging to the plaintiff-Jamia Maszid.
About 40 years back, the said premises was leased to the first defendant for running scrap, firewood and coal business. The appurtenant land is
also being used to store the gujari, firewood and coal. The first defendant was paying rent of Rs.600/- p.m. The said business is being carried on
by the second defendant in the said premises. In the Municipal register, name of the second respondent has been entered as occupier of the said
premises for the years 2002-2003 to 2004-2005. The allegation is that the first defendant is collecting more rent from the second defendant and
paying only a sum of Rs.600/- p.m., to the Jamia Maszid. The Managing Committee of the Jamia Maszid after noticing the same, issued quit notice
terminating the tenancy calling upon the appellant to hand over the vacant possession to pay the arrears of rent and also mesne profits. However,
the defendant denied the same.
14. The Administrator of the Jamia Maszid was examined as P.W.1. In his evidence, he has clearly mentioned that the premises was leased to the
first defendant for doing scrap business. However, he retired from the said business and settled down at Kasaragod. Without permission of the
plaintiff, he leased out the said premises to the second defendant. The second defendant is doing the very same business and in the municipal
records, the name of the second defendant is mentioned as occupier of the suit schedule premises. As on the date of issuing quit notice, the adhoc
Managing committee was managing the Jamia Maszid, subsequently an Administrator was appointed. Being an administrator of the Jamia Maszid
he has given evidence. Nothing contrary has been elicited in the cross-examination. The first defendant in his evidence reiterated the averments
made in the written statement and denied sub-leasing the premises to the second defendant. In the cross-examination he has clearly admitted that
he is a resident of Kasaragod. After coming to Udupi, he has learnt Kannada. He has received the quit notice at his Kasaragod address. There is
no written lease deed, he was a monthly building tenant. The building is in dilapidated condition and he is using the appurtenant land for storage of
his gujari, firewood and coal with the permission of the plaintiff. For the last 15 years, his health condition is not good, hence he went to his native
place. The second defendant is his manager and he is paying him salary of Rs.2,500/- p.m. However he has no document to show that he is paying
salary of Rs.2,500/- p.m. to the second defendant. For the last 15 years, he is residing at Kasaragod. He has not maintained any register regarding
his business and also payment of salary to the second respondent. He admitted that in the Municipal records, name of the second respondent has
been shown as occupier. Hence it is clear that for the last 15 years, the first defendant is residing at Kasaragod and the business is being carried on
by the second defendant as a sub-lessee. Though the Jamia Maszid made an allegation that second defendant is occupying the suit schedule
premises as sub-lessee, the second defendant neither filed written statement nor stepped into the witness box to deny the allegation made against
him. If the second defendant is running the business as Manager, nothing prevented him to step into the witness box and dispel the contention of the
plaintiff that his occupation is as sub-tenant. Though the first defendant has taken the contention that the occupation of the second respondent of
the suit schedule premises is as a Manager, no document has been produced to establish the same. The first defendant is not doing any business at
Udupi and he has permanently settled down at Kasaragod, subsequently he died. That itself shows that the first defendant has sub-leased the suit
schedule premises to the second defendant and he is carrying on business of scrap, firewood and coal. The quit notice issued by the Managing
Committee of the Jamia Maszid is in accordance with law. In view of amendment to Section 106 of Transfer of Property Act in the year 2002,15
days clear notice is sufficient to terminate the tenancy since the first defendant is a monthly building tenant. The quit notice issued is in accordance
with law. The courts below, after appreciating the oral and documentary evidence concurrently held that the premises was sub-let to the second
defendant and he is doing business and his name has been depicted in the municipal records as occupier of the premises. Further there is arrears of
rent from 1-9-2001 to 28-2-2002. The defense taken by the first defendant is that the plaintiff refused to accept the rent. The facts clearly disclose
that the first defendant had offered the arrears of rent on subsequent dates which established that he is in arrears of rent.
15. The judgment relied upon by Sri. Chandranath Ariga reported in AIR 1992 SC 1604 (supra) is concerned, there is no dispute with regard to
proposition of law laid down by the Hon�ble Supreme Court that ""where the findings by the Court of facts is vitiated by non-consideration of
relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings."" In the
instant case, after issuing quit notice, the suit has been filed terminating tenancy. Admittedly, the first defendant is a monthly building tenant and it
was an oral lease. The tenancy starts from the 1st day of each calendar month and expires on the last day of each calendar month. The tenancy can
be terminated after issuing quit notice in terms of Section 106 of the Transfer of Property Act. In the instant case, both the Courts after
appreciating the oral and documentary evidence came to the conclusion that the first defendant has sub-let the premises to the second defendant
without the permission of the plaintiff and the first defendant is in arrears of rent. I find no infirmity or irregularity in the judgment and decree passed
by both the Courts below by appreciating the oral and documentary evidence. The Hon�ble Supreme Court in a judgment reported in (2016) 3
SCC 78 : (AIR 2016 SC 262) (supra) has clearly laid down a law that in second appeal, scope of interference in concurrent finding by the courts
below on pure question of fact is not permissible, unless such findings are based on no evidence or the finding is perverse. In the instant case, the
finding of the first appellate court is purely a question of act. There is no misreading of the evidence or on conjenctures or surmises. The finding has
been given by the courts below purely on appreciating the oral and documentary evidence. The appellant/first defendant has not made out a case
to interfere with the judgment and decree passed by the courts below. Accordingly, I pass the following:
ORDER
The appeal is dismissed.