THE HON’BLE SRI JUSTICE T.SUNIL CHOWDARY SECOND APPEAL No.176 of 2005 January 24, 2014 Between:
Mohd. Gouse, S/o.Hussain Saheb AND Mohd. Iliyas, S/o.Abbas And others … Appellant/ Respondent/Plaintiff … Respondents/ Appellants/Defendants THE HON’BLE SRI JUSTICE T.SUNIL CHOWDARY SECOND APPEAL No.176 of 2005 JUDGMENT:
This second appeal is preferred by plaintiff challenging the decree and judgment dated 18.8.2004 in A.S.No.49 of 2003 on the file of IV Additional District Judge (Fast Track Court No.III), Khammam, reversing the decree and judgment dated 04.9.2002 in O.S. No.100 of 1998 on the file of II Additional Junior Civil Judge Court, Khammam (old O.S.No.246 of 1996 on the file of Principal Junior Civil Judge Court, Khammam). For the sake of convenience, the parties are hereinafter referred to as they are arrayed in the suit.
2. The case of the plaintiff is that he is owner of a suit schedule shop viz., Suraj Battery Builder, situated at Quthub Shahi Mazeed Complex, Gandhi Chowk, Khammam (hereafter referred to as, Mazeed). In the year 1982, plaintiff requested one Md. Abdul Subhur, who is Pesh-Imam (Pujari) to permit him to establish a shop in Mazeed complex in an extent of 4 X 9 Sq.feet. Plaintiff constructed suit schedule shop in the width of 4 X 9 Sq.feet. The plaintiff is a battery builder by occupation and earning Rs.40/- to Rs.50/- per day. Plaintiff paid rent to Md. Abdul Subhur up to April, 1996. Plaintiff had received notice dated 20.5.1997 from defendant No.2 directing him to pay rent at Rs.175/- in stead of Rs.100/- per month. It is mentioned in the notice that plaintiff owe an amount of Rs.3,000/- towards arrears of rent. On 04.6.1992, defendant Nos.1 and 2 came to plaintiff’s shop, collected an amount of Rs.100/- towards rent and issued receipt bearing No.107. Defendant Nos.1 and 2 directed plaintiff to pay rent to them regularly. On 05.6.1996, one Sk.Rajab Ali and 5 others came to plaintiff’s shop and directed him not to pay rent to defendants. On 07.6.1996, defendant Nos.1 and 2 came to the shop of plaintiff and directed him not to follow the instructions of Sk.Rajab Ali. Plaintiff came to know that there were some disputes between the defendants. The defendants are trying to evict the plaintiff from suit schedule property. Hence the suit.
3. Defendant No.1 filed written statement inter alia contending that he has been discharging the duties as President since more than 15 years and defendant No.2 is the Secretary of the Managing Committee. The suit schedule mulgi (shop) along with other mulgis were constructed by defendant No.1 with the funds of the Mazeed. Thereafter the suit schedule mulgi was given on rent to various persons and subsequently plaintiff has occupied it as a tenant on a monthly rent of Rs.75/-, which was enhanced to Rs.100/-. The rent of suit schedule mulgi was finally enhanced to Rs.175/- per month, as per the decision of the Managing Committee. Plaintiff is irregular in payment of rent and the rent due from him is Rs.3,000/-. Defendant Nos.1 and 2 never tried to evict plaintiff from suit schedule mulgi.
4. The defendant No.3 filed written statement inter alia stating that plaintiff is tenant of suit schedule shop since 1982. Plaintiff is paying the rent to defendant No.3 after passing of the orders of Hon’ble Court vide I.A.No.411 of 1996. Prior to that orders, plaintiff has not paid any amount of rent to defendant No.3. The District Wakf Board or the State Wakf Board has not constituted any Managing Committee for the Mazeed and also not given any authorization to maintain Mazeed activities. The District Wakf Board is competent authority to maintain all Wakf properties under the Wakf Act, 1995 and the so-called Managing Committee is not an authorized body to collect rents from the tenants of Mazeed complex. Hence the suit may be dismissed against defendant No.3.
5. Defendant No.2 filed memo adopting the written statement filed by defendant No.1. The suit against defendant No.4 was dismissed for non-payment of process.
6. Basing on the above pleadings, the trial court framed following issues:
1. Whether the plaintiff is entitled to permanent injunction as prayed for?
2. To what relief the plaintiff is entitled to?
7. After analyzing the oral, documentary evidence and other material available on record, the trial court decreed the suit. Feeling aggrieved, defendant Nos.1 and 2 filed appeal and the same was allowed setting aside the decree and judgment of the trial court. Aggrieved by the same, the plaintiff preferred this second appeal.
8. The substantial question of law urged in this appeal is as follows.
Whether the First Appellate Court is justified in allowing the appeal on presumptions and surmises, ignoring the well considered judgment and decree of the trial court?
9. Heard Sri V.Sambasiva Rao, learned counsel for the appellant/plaintiff and Sri Mounin Asidi, Advocate representing Sri Mir Masood Khan, learned Standing Counsel for respondent No.4/defendant No.4. No representation on behalf of respondent Nos.1 to 3/defendant Nos.1 to 3.
Point:
10. Learned counsel for the appellant submitted that the findings of the first appellate court are perverse and contrary to law. Learned counsel for the fourth respondent submitted that the plaintiff is not entitled to continue in the suit schedule shop in view of the default committed by him in payment of rent.
11. To substantiate his case, in the trial court, plaintiff examined himself as P.W.1 and got marked Exs.A1 and A2. To dislodge the case of plaintiff, first defendant examined himself as D.W.1 and no documents were marked.
12. As seen from the testimony of P.W.1, Md. Abdul Subhur, who is Pesh Imam (Pujari) of Mazeed, permitted him to construct a shop in an extent of 4 X 9 Sq.feet in Mazeed complex. The testimony of P.W.1 reveals that he constructed suit schedule shop in the year 1982 and carrying on business in the name and style of Suraj Battery Builder. In the chief-examination itself, D.W.1 in unequivocal terms deposed that the plaintiff has been running battery shop in Mazeed complex since 1985 onwards. As seen from the testimony of P.W.1 and D.W.1 initially the plaintiff used to pay rent of Rs.75/- per month, which was enhanced from time to time. As on the date of filing of the suit, plaintiff is paying rent of Rs.175/- per month. In their written statements also, defendant Nos.1 and 3 categorically admitted that the plaintiff has been in possession and enjoyment of suit schedule shop as a tenant. A perusal of Ex.A1 clearly reveals that on 20.5.1996, the Secretary of Mazeed committee issued a notice to plaintiff enhancing the rent from Rs.100/- to Rs.175/- per month. As per the recitals of Ex.A1, the plaintiff owe an amount of Rs.3,100/- to Mazeed towards arrears of rent. A perusal of Ex.A2 clearly reveals that plaintiff paid Rs.100/- towards rent on 04.6.1996. The oral testimony of P.W.1 and D.W.1 coupled with Exs.A1 and A2 clearly reveals that the plaintiff has been in possession of suit schedule shop as a tenant. It is settled principle of law that admitted facts need not be proved. The defendant Nos.1 and 3 in their respective written statements categorically admitted that the plaintiff has been in possession and enjoyment of suit schedule shop as a tenant.
13. As per the averments in the written statements and the testimony of P.W.1, there was a dispute among the defendants with regard to management of Mazeed including collection of rent from tenants. It is not out of place to extract relevant portion in para – 4 of the written statement of third defendant.
“… … That the plaintiff is paying rents to this defendant after passing of the orders of the Hon’ble court vide I.A.No.411/1996. … …”
As per the averments in the written statement of third defendant, plaintiff has been paying the rents as directed by the trial court. The trial court, after taking into consideration the material available on record, arrived at a conclusion that the plaintiff is entitled for permanent injunction.
14. The first appellate court reversed the judgment of the trial court on the ground that plaintiff failed to prove his title over the suit schedule shop. It is not the case of the plaintiff that he is the owner of suit schedule shop. Even assuming, but not admitting, that the plaintiff committed default in payment of rent, the remedy available to the defendants is to evict plaintiff from the suit schedule shop by following due process of law. The material placed before the court clinchingly proved the jural relationship of landlord and tenant between the third defendant and plaintiff. Simply because the plaintiff closed the shop for some period, by itself is not a sufficient ground to dismiss the suit. The first appellate court made an observation that the plaintiff has not filed third party affidavit regarding allotment of shop to him. When the defendants themselves admitted that the plaintiff has been in possession and enjoyment of suit schedule shop, the question of filing third party affidavit does not arise. The finding of the first appellate court that the plaintiff has to establish his title in order to grant the relief of permanent injunction is contrary to the settled principles of law.
15. The findings recorded by the first appellate court are contrary to the oral and documentary evidence adduced by both parties. The court cannot travel beyond the pleadings, oral and documentary evidence adduced by the parties. It is a settled principle of law that the landlord is not entitled to evict the tenant by force. The apprehension of the plaintiff that the defendants are trying to evict him from suit schedule shop, is fully supported by the material available on record. Viewed from any angle, the findings recorded by the first appellate court are perverse and contrary to the settled principles of law. On the other hand, the trial court has assigned cogent and valid reasons to its findings. It is a fit case to interfere with the decree and judgment of the first appellate court.
15. In the light of foregoing discussion, I have no hesitation to hold that plaintiff is entitled for the relief of permanent injunction in respect of suit schedule shop. There is substantial question of law in this appeal.
16. The second appeal is allowed setting aside the decree and judgment dated 18.8.2004 in A.S.No.49 of 2003 on the file of IV Additional District Judge (Fast Track Court No.III), Khammam, and consequently confirming the decree and judgment dated 04.9.2002 in O.S. No.100 of 1998 on the file of II Additional Junior Civil Judge Court, Khammam (old O.S.No.246 of 1996 on the file of Principal Junior Civil Judge Court, Khammam). There shall be no order as to costs.
17. The miscellaneous petitions if any pending in this second appeal shall stand closed.
(T.SUNIL CHOWDARY, J) 24th January, 2014.
YS