V.G. Sabhahit, J.
1. This appeal by the 1st defendant is directed against the judgment and decree passed by the Court of Civil Judge (Senior Division), Madikeri, in R.A. No. 15 of 1996, dated 9-10-2003, dismissing the appeal and confirming the judgment and decree passed by the Court of Munsiff, Somwarpet, in O.S. No. 56 of 1994, 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. No. 56 of 1994 against the defendants seeking for a judgment and decree to vacate and handover possession of the schedule property including the house and for arrears of rent of Rs. 5,4007- for the past 3 years at the rate of Rs. 150A 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 plaintiffs 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. 1507- without the plaintiffs permission; plaintiff caused a notice dated 15-2-1994 to the defendants calling upon them to vacate and handover 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 some 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 that 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 therewith an intention of owning 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 P.W. 1 and got marked Exs. P. 1 to P. 9. On behalf of the defendants, 1st defendant was examined as D.W. 1 and Exs. D. 1 to D. 3 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 an 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. No. 15 of 1996 on the file of Civil Judge (Senior Division), 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 above said 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 tenancy 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 evidence 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 in Bashesharnath v. Delhi Improvement , 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 created 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 in Madhukar and Ors. v. Sangram and Ors. : [2001]3SCR138 , 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 in Puttegowda v. Puttaswamygowda (since deceased) by L.R : ILR1996KAR2156 , 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 in Tayabali Jaferbhai Tankiwala v. Ahsan and Company and Ors. : [1970]2SCR554 , 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, 1963. It is clear from the provisions of Section 113 of the Transfer of Property Act, 1882, 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 Transfer of Property Act and illustration (b) came up for consideration before the Hon'ble Supreme Court in the case of Tayabali Jaferbhai Tankiwala. In the said case, the Hon'ble Supreme Court has laid down that in view of the provisions of Section 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 notices, 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. D. 1, 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 Division), Madikeri, in R.A. No. 15 of 1996 dismissing the appeal and confirming the judgment and decree passed by the Court of Munsiff, Somwarpet, in O.S. No. 56 of 1994, dated 21-3-1996 is confirmed. The appellant is however, granted six months time from today to quit and handover vacant possession of the Schedule premises to the plaintiff-respondent. There shall be no order as to costs.