Karnataka High Court
Smt P R Shantha vs Sri D Chail Singh on 13 December, 2023
Author: K. Natarajan
Bench: K. Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
REGULAR FIRST APPEAL NO.546 OF 2017
BETWEEN:
SMT. P.R. SHANTHA
AGED ABOUT 41 YEARS,
W/O C.V. MURALI KRISHNA,
R/AT NO.117, CHILAMAKORI,
100 FEET ROAD, ITTAMADU LAYOUT,
BANASHANKARI III STAGE, III PHASE,
BENGALURU - 560 085.
...APPELLANT
(BY SRI. BHADRINATH. R., ADVOCATE)
AND:
1. SRI. D. CHAIL SINGH
AGED ABOUT 50 YEARS,
S/O LATE DEEP SINGH,
R/AT NO.1 & 2,
SRI. KRISHNA BUILDING,
AVENUE ROAD,
BENGALURU - 560 002.
2. SRI. B. RAJENDRA KUMAR
AGED ABOUT 53 YEARS,
S/O LATE A. BUDMAL,
R/AT NO.10/1, III FLOOR,
RAJDOOT COMPLEX, AVENUE ROAD,
BENGALURU - 560 002.
2
3. SRI. M.R.PRAKASH
AGED ABOUT 70 YEARS,
S/O LATE M.RANGAPPA,
R/AT NO.102/A, BRIGADE MAJESTIC,
I MAIN ROAD, GANDHINAGAR,
BENGALURU - 560 009.
4. SRI. R.VINAYA KUMAR
AGED ABOUT 37 YEARS,
S/O LATE M.RAMAMURTHY,
R/AT NO.102/A, BRIGADE MAJESTIC,
I MAIN ROAD, GANDHINAGAR,
BENGALURU - 560 009.
5. SRI. B.KANTILAL
AGED ABOUT 52 YEARS,
S/O LATE A.BUDMAL,
R/AT NO.28/22, KALAPPA BLOCK,
SRINAGAR, BENGALURU - 560 050.
6. SRI. B PRAKASH CHAND
AGED ABOUT 60 YEARS,
S/O LATE A.BUDMAL
R/AT NO.711, I 'C' MAIN,
8TH BLOCK, JAYANAGAR,
BENGALURU - 560 011.
7. SMT. K.R.MEENA
AGED ABOUT 40 YEARS,
W/O K.RAGHU, R/AT NO.112/1,
SRI. SHIVA KRUPA,
7TH MAIN ROAD, III BLOCK,
THYAGARAJA NAGAR,
BENGALURU - 560 028.
..RESPONDENTS
(BY SRI. GOPAL SINGH, ADVOCATE FOR C/R1;
NOTICE TO R2, R5, R6 ARE SERVED,
VIDE ORDER DATED 25/04/2019, NOTICE TO R3,
R4 AND R7 IS HELD SUFFICIENT)
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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
CPC, PRAYING TO CALL FOR RECORDS ON THE FILE OF XII-
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-27) AT
BENGALURU CITY AND TO SET ASIDE THE JUDGMENT AND DECREE
DATED 10.02.2017 IN O.S.NO.2964 OF 2010 PASSED BY XII-
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-27) AT
BENGALURU CITY TO DISMISS THE SUIT OF PLAINTIFF/RESPONDENT
NO.1 AND CONSEQUENTLY, TO ALLOW THIS APPEAL WITH COSTS.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 15.09.2023, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant/defendant No.4 under Section 96 of Civil Code of Procedure for setting aside the judgment and decree dated 10.02.2017 passed by the XII-Additional City Civil and Sessions Judge, Bengaluru, in O.S.No.2964/2010 for having decreed the suit of respondent No.1-plaintiff.
2. Heard the learned counsel appearing for the appellant and learned counsel for respondent No.1. 4
3. The appellant is defendant No.4, respondent No.1 is the plaintiff and respondent Nos.2 to 7 are defendant Nos.1 to 3, 6, 7 and 5. The rank of the parties before the trial Court is retained for convenience.
4. The case of the plaintiff before the Trial Court is that the plaintiff filed suit against the defendants directing them to put the plaintiff in possession of the schedule premises for occupation as a tenant by ejecting the fourth and fifth defendants who are in illegal occupation of the schedule premises.
5. It is alleged by the plaintiff in the plaint that he is a businessman running the business in the name of M/s. Reliance Stationery World. With intention to expand his business, as early as in the month of February 2010, he had come across a premises measuring 4,750 sq., ft., in the ground floor of the premises in a building next to his establishment. The said building was leasehold premises of 5 a late Sri.A.Budmal and others. The plaintiff was directed by the other tenant in the building to the first defendant- Rajendra Kumar who is having office in the third floor and the first defendant disclosed that his father Late Budmal, himself, Dhirajmal and Ashok Kumar had taken leasehold rights of the then vacant area of the property bearing Nos.8, 9, 10 and 10/1 situated at Avenue Road. The said property was obtained on lease from one Rangappa, Ramamurthy and M.R.Prakash for a term of 33 years commencing from 04.09.1978 to 03.09.2011.
6. It is further alleged that the first defendant and the lessees had constructed the building and thereafter, Dhirajmal and Ashok Kumar have released their rights in favour of first defendant's father and as such, the constitution of share was 75% to Budmal and 25% to the first defendant on the leasehold property. It was told that Budmal has died intestate on 28.12.2009 leaving behind first defendant's mother and six children of which the first 6 defendant is one of such legal heir having 1/7th share of late Budmal. The first defendant represented that he has 35.7% controlling stake in the leasehold property and he is the deciding factor in the affairs of the management of the leasehold property. Having satisfied with the representation of the first defendant and after the negotiation, a lease agreement was held between the plaintiff and the first defendant on 23.02.2010 in respect of property measuring 4,750 sq., ft., on ground floor which is shown as schedule premises. It is further stated that the plaintiff had agreed to pay rent of Rs.60,000/- per month to the first defendant under the agreement. It was agreed to deliver the property after attending the repairs and white wash. The first defendant agreed to deliver the possession within fifteen days of completion of white wash and repairs. After making the agreement, the first defendant has disputed with his brothers Kanti Lal and B.Prakash Chand, though they have a limited right of 10.7% each but they were placing higher 7 demand of share of rents. This dispute started when the brothers of the first defendant's came to the know that the schedule premises has been let out to the plaintiff. The said Kantilal and his brother Prakash Chand came to the plaintiff and insisted to pay rent to them otherwise, they will create problem. The first defendant clarified that they do not have any lawful claim except their share of rent 10.7% each. That on 05.03.2010 at 2.00 p.m. some persons broke opened the lock put to the closed shutters of suit premises and tried forcibly entry which was prevented by the first defendant with the help of Police. It is further alleged that the Kantilal and Prakash Chand intimidated the plaintiff and the first defendant for rescinding the lease agreement dated 23.02.2010. When the plaintiff refused for the same, a threat was made. That on 09.03.2010, the husbands of fourth and fifth defendants along with rowdy elements forcibly broke opened the lock and occupied the schedule premises illegally. Thereafter, the plaintiff has come across the fact that Kanti 8 Lal and Prakash Chand had made parallel lease agreement dated 25.02.2010, after the lease agreement was made in favour of the plaintiff and the said agreement was made in favour of fourth and fifth defendants. On the strength of the above lease agreement, the fourth and fifth defendants were in illegal occupation of the schedule premises. The said agreement was made on the strength of the GPA executed by Budmal in favour of Kanti Lal and Prakash Chand which has no force since Budmal died on 28.12.2009. The first defendant's brother Kanti Lal and Prakash Chand and other local gunda elements occupied the schedule premises which caused loss to the plaintiff. The first defendant stated that he has safeguarded the interest of the plaintiff and that the second and third defendants have been authorized to put the plaintiff in possession of the schedule premises. The plaintiff contacted the second and third defendants, but it is of no use. Since the first defendant has transferred his right to the second and third defendants, they were placed favorably 9 with the fourth and fifth defendants. Hence, the fourth and fifth defendants illegally occupied the premises. Therefore, the plaintiff was constrained to file the suit.
7. The second and third defendants appeared and filed written statement by admitting the property was leasehold property and the agreement between the plaintiff and the first defendant in respect of the ground floor premises and further stated that second defendant is the sole legal heir of Rangappa and third defendant is the sole legal heir of Ramamurthy. The entire premises was leased out by their fathers in favour of Budmal in the year 1978 for 33 years and further admitted that Budmal had 75% of share in the leasehold rights and his son Rajendra Kumar, first defendant was having 25% of share in the leasehold rights. Budmal died leaving behind his wife and six children, each legal heir has 1/7th share out of 75% of the leasehold rights till 03.09.2011. The first defendant had independent right of 25% and 10.7% as the legal heir of his father Budmal who 10 has surrendered the leasehold rights to the second and third defendants on 17.03.2010. With the surrender, the second and third defendants are invested with ownership rights on the premises surrendered and also the other part of the building. The second and third defendants have admitted the dispute between the first defendant and the other legal heirs of Budmal. To defeat the lease created by the first defendant, who had major stake, in favour of the plaintiff, Kanti Lal and Prakash Chand and other legal heirs of Budmal had devised a circuitous route and they have made another lease on their own, two days later, after the lease of the plaintiff and with force supported by some rowdy elements. Thereby, the fourth and fifth defendants are in illegal occupation of the schedule premises.
8. It is further alleged that lease expired on 03.09.2011. The entire property has to be reverted to the second and third defendants without any liability. The lease agreement made by Kantilal and Prakash Chand in favour of 11 the fourth and fifth defendants is illegal and receipt of Rs.5,00,000/- as lease deposit, is also illegal. Hence, the fourth and fifth defendants are to be directed to deposit rents in the Court.
9. It is further stated that they have succeeded to the rights of the first defendant and it is their duty to put the plaintiff in possession of the suit premises and they further admit that the fourth and fifth defendants are in illegal occupation as the lease created by Prakash Chand and Kanti Lal are illegal. Hence, they prayed for passing the suitable order.
10. The fourth defendant appeared and filed written statement contending that the suit is not maintainable and denied all the allegations made by the plaintiff in paragraphs 2 to 4 as false. It was contended that on 23.11.2009 a Memorandum of Understanding was entered into between Budmal and his power of attorney holders Prakash Chand 12 and Kanti Lal and possession of the suit property was given to fourth and fifth defendants for doing business. There was lot of damages in the premises and repair work was taken and subsequently, Lease Deed was executed by canceling the MOU by a shara. Therefore, the plaintiff searching the property and entering into the lease wit the first defendant does not arise. The plaintiff has created the Lease Deed dated 23.02.2010 to create pressure on the this defendant.
11. It is further alleged that the first defendant has created lot of problem and interfering with the defendant in doing business. The fourth and fifth defendants have filed civil suit against Prakash Chand, Kanti Lal and Rajendra Kumar and an injunction order was operating against them in O.S.No.1676/2010. Now the plaintiff came up with the false case by putting pressure on the fourth and fifth defendants. Hence, the suit is not maintainable and prayed for dismissal of the suit.
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12. The sixth and seventh defendants have filed separate written statements by admitting that the entire leasehold premises right was for 33 years. The first defendant had 25% share of leasehold rights and Budmal had 75% share of leasehold rights. They also admitted that Dhirajmal and Ashok Kumar were removed from leasehold right with the execution of the Release Deed in favour of Budmal who died on 28.12.2009 by leaving behind the first defendant, five other children including sixth and seventh defendants and Kanchan Bai, the mother of the defendants as legal heirs. It is further contended that they were not aware about the tenancy rights created by the first defendant in favour of the plaintiff on 23.02.2010, but they admitted that they have executed Lease Deed in favour of the fourth and fifth defendants on 25.02.2010. Further, they admit that Rajendra Kumar-first defendant has surrendered the leasehold rights including the share which he would get under the legatee from his father in favour of the second and 14 third defendants under the registered Surrender Deed dated 17.03.2010. Thereafter, some negotiations and meetings were held and the other legal heirs of Budmal were agreed to surrender remaining leasehold rights to the second and third defendants. Thereby, the second and third defendants became absolute owner of the entire property. The tenancy created by the sixth and seventh defendants is disputed by the plaintiff, the second defendant, third defendant and the first defendant in respect of the schedule premises. It is further contended that these defendants did not have any right, title over the schedule premises as all the rights are reverted to second and third defendants. Hence, they prayed for passing the suitable orders.
13. Based upon the pleadings of the parties, the Trial Court framed five issues which reads as under:
ISSUES i. Whether plaintiff is entitled for possession of the suit property as a lessee of the first defendant?15
ii. Whether the plaintiff proves that the defendants 4 and 5 are to be evicted from the suit property as they are in illegal occupation?
iii. Whether defendants 4 and 5 prove that the plaintiff has created an antidated lease deed dated 23.02.2010 and as such he is not entitled for any reliefs?
iv. Whether the suit is bad for non-joinder of Mr. B. Prakash Chand and Kanthilal?
v. What order or decree?
14. On behalf of the plaintiff, plaintiff examined himself as PW.1 and got marked three documents and on behalf of the defendants, GPA holder of fourth defendant examined as DW.1 and got marked eight documents. After hearing the arguments, the Trial Court answered issue Nos.1 and 2 in the affirmative and issue No.3 in the negative and 16 held that issue No.4 does not arise for consideration and finally, decreed the suit.
15. Being aggrieved by the judgment and decree passed by the Trial Court, the fourth defendant has filed this appeal.
16. The learned counsel for the appellant has contended that the judgment and decree passed by the Trial Court is not sustainable under the law, which is illegal, perverse and bad in law. Further contended that the impugned judgment is highly arbitrary in nature. The suit of the plaintiff is not maintainable. The Trial Court failed to appreciate the evidence led by both the parties both oral as well documentary. The plaintiff based upon the invalid documents and rental agreement dated 23.02.2010, has created the Ex.P.1 and Ex.P.3, which are not at all valid in the eye of law. Though, the DW.1 produced the documents that is the judgment and decree in O.S.No.1676/2010 17 marked as Exs.D.6 and D7 and the rental agreement dated 25.09.2014, executed by the second and third defendants in favour of the appellant, which was marked as Ex.D.8, but the Trial Court has not properly appreciated the same and passed the impugned judgment, which is not correct.
17. It is further contended that the Trial Court has failed to consider that the first defendant has lost his right over the scheduled property under the Surrender Deed dated 17.03.2010 in favour of second and third defendants.
Consequently, the rental agreement dated 23.02.2010 executed by the first defendant in favour of the plaintiff is automatically canceled. The rental agreement dated 23.02.2010 is invalid in the eye of law. Therefore, the plaintiff has no locus standi to pursue the matter and he has no right to evict the fourth and fifth defendants. It is further contended that the lease agreement dated 04.09.1978 executed by the father of the second and third defendants in favour of Budmal is only for 33 years, which expires on 18 03.09.2011. The property was reverted back to the second and third defendants, who become the absolute owners, wherein they have executed rental agreement in favour the appellant on 25.09.2014 as per Ex.D.8. The appellant is carrying on the business which is legal and valid. The Trial Court has failed to consider that the father of the second and third defendants executed Lease Deed only for 33 years in favour of Budmal, who died on 28.12.2009, leaving behind his wife, 04 sons and 02 daughters as legal heirs. At the time of his death, he had 75% share in the leasehold rights and first defendant had 25% in the leasehold rights. Under these circumstances, the first defendant who is one of his sons, could not have executed the lease deed in favour of the plaintiff, without having any authority from other legal heirs of Budmall, and the same is invalid. The Trial Court failed to appreciate the cross-examination and the Surrender Deed executed in favour of the original owners. Ex.D.5 is not appreciated by the Trial Court. Therefore, the judgment and 19 decree passed by the Trial Court in favour of the plaintiff is liable to be set-aside. Hence, prayed for allowing the appeal.
18. Per contra, the learned counsel for the first respondent/plaintiff has supported the judgment and decree passed by the Trial Court and contended that the plaintiff has entered into lease agreement with the first defendant, who is having 35.7% share of leasehold rights prior to the lease agreement of the first defendant, which creates subsequent lease agreement of the plaintiff. As per the agreement, the possession should be delivered within 15 days after repairing of the premises, but the fourth and fifth defendants with the gunda elements entered into the premises and illegally occupied. Therefore, they have to be evicted from the premises. The plaintiff being the lease holder is entitled for the premises. Therefore, he has supported the judgment of the Trial Court. Hence, prayed for dismissing the appeal. 20
19. The counsel for the appellant filed I.A.No.1/2023 under Order 41 Rule 27 of CPC, seeking permission to adduce the additional evidence by producing the copy of the 03 documents viz., i. Copy of the registered lease deed dated 04.09.1978 between Rangappa, M.R.Ramamurthy and M.R.Prakash in favour of A.Budmal, Rajendra Kumar, Ashok Kumar and Dhirajmal, ii. Copy of Release deed dated 20.10.2001 between B.Rajendra Kumar in favour of A.Budmal, and iii. Copy of the registered Surrender deed dated 17.03.2010 by B.Rajendra Kumar in favour of M.R.Prakash and R.Vinay Kumar.
20. It is contended that the first respondent-plaintiff filed the suit and got the decree. At the time of presenting the appeal, it is pointed out by the learned counsel that the surrender deed dated 17.03.2010 was misplaced. The other two documents are the admitted documents and these documents are necessary for adjudication of the case. Hence, prayed for allowing the application.
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21. The first respondent-plaintiff has also filed a similar application under Order 41 Rule 27 of CPC seeking permission to produce the copies of 09 documents which are as under:-
i. The surrender lease dated 17.03.2010 made by Rajendra Kumar in favour of M.R.Prakash and Vinay Kumar, ii. The surrender lease dated 28.03.2011 made by Smt.Kanchan Bai and others in favour of M.R.Prakash and R.Vinay Kumar.
iii. The registered lease deed dated 05.06.2010 made by M.R.Prakash and R.Vinay Kumar in favour of Smt.Leeladevi and D.Chail Singh for a period of 20 years.
iv. The lease deed dated 30.03.2004 made by A.Budmal and Rajendra Kumar B., in favour of South Indian Bank Limited.
v. The certificate issued by South Indian Bank Limited dated 29.06.2006.
vi. The certificate from Syndicate Bank dated 12.05.2009.
vii. The certificate from Syndicate Bank dated 05.03.2010.
22viii. The Deed of lease dated 05.05.2009 by A.Budmal and Rajendra Kumar B., in favour of Syndicate Bank.
ix. The Encumbrance Certificate for the period from 01.04.2009 to 29.03.2011.
22. The first respondent has contended that these documents were necessary documents which were not produced and most the documents were admitted documents by the parties. Therefore, prayed for allowing the application.
23. Having heard the arguments of the learned counsel for the parties and on perusal of the records, the following points that would arise for consideration are as under:-
i. Whether the plaintiff proves that he has entered into lease agreement with the first defendant, thereby he is entitled for possession of the suit property as a lessee? 23 ii. Whether fourth and fifth defendants shall be evicted from the scheduled premises, as they are in illegal possession.?
iii. Whether the fourth and fifth defendants prove that the plaintiff created a false antidated lease deed dated 23.02.2010.?
iv. Whether the appellant as well as the first
respondent have made out sufficient
grounds for production of additional
documents as additional evidence under
Order 41 Rule 27 of CPC?
v. Whether the judgment of the Trial Court
calls for interference.?
24. Having heard the arguments on the Interlocutory Applications filed by both the appellant as well as first respondent under Order 41 Rule 27 of CPC, these documents appear to be relevant documents and admitted documents by the parties. Therefore, the additional documents produced by the parties shall have to be permitted to produce. 24
25. On careful reading of the pleadings of the plaintiff, defendants and their oral evidence including the documents, some of the admitted facts of both the parties are as under:
i. It is an admitted fact that the schedule premise was previously a vacant land belongs to one M.Rangappa, M.R.Ramamurthy and M.R.Prakash and the said three persons leased out the land to Budmal and his son Rajendra Kumar-the first defendant, his brothers Ashok Kumar and one Dhirajmal vide lease deed dated 04.09.1978 for 33 years expiring on 03.09.2011. They were permitted to construct building and leased out to tenants and on or before expiry of the lease period, they have to surrender the schedule premise to the lessor.
ii. It is an admitted fact that the second and third defendants are the legal heirs of original owners of the land.
iii. It is also an admitted fact that Budmal and above three persons shared 25% of share each. During the lifetime of Budmal, Ashok Kumar one of the son of Budmal and Dhirjamal, relinquished their right of 25% of their share in favour of Budmal.
Thereby, Budmal became 75% shareholder in the leasehold rights and the first 25 defendant-Rajendra Kumar continued to hold 25% of share in the leased property.
iv. It is an admitted fact that previously, the premises was let out to South Indian Bank on 30.03.2004 by Budmal and the first defendant and Budmal was receiving 75% of the rent and the first defendant-
Rajendra Kumar was receiving 25% of the rent which is available in the additional documents produced by the plaintiff. The plaintiff has also produced the certificate issued by the South Indian Bank for paying 25% of the rent to the first defendant-
Rajendra Kumar. Subsequently, the South Indian Bank vacated the premises. Later, it was leased out to Syndicate Bank vide Lease Deed dated 05.05.2008, both Budmal and the first defendant were receiving rent from the Syndicate Bank.
Later, the Syndicate bank also vacated the premises and the said premises fell vacant. v. It is also an admitted fact that the said Budmal died on 28.12.2009 and prior to that, he had executed GPA in favour of sixth and seventh defendants who are his children.
vi. It is an admitted fact that after the death of Budmal, 75% share of the deceased-
Budmal was succeeded by seven legal heirs including the first defendant. Thereby, each legal heir of Budmal gets 10.7% share and the first defendant is having major share i.e., 10.7% as a legal heir of Budmal and 26 25% of his own share. Thereby, the first defendant is having 35.7% of share in the leasehold rights.
26. It is revealed from the records that the first defendant-Rajendra Kumar leased out the premises to the plaintiff on 23.02.2010. Ex.P2 is the Lease Agreement entered into between the plaintiff and the first defendant- Rajendra Kumar. The same is under challenge.
27. The case of the fourth defendant/appellant is that the children of Budmal, sixth and seventh defendants being GPA holder of Budmal entered into a lease agreement with the fourth and fifth defendants for letting out the premises on 25.02.2010 and during the dispute, the fourth defendant already entered into the premises and occupied the disputed property. Whereas, the plaintiff claims that he has entered into agreement with the first defendant who is having 35.7% share holding rights and subsequently, the first defendant has surrendered the leasehold rights to the second and third 27 defendants on 17.03.2010. The plaintiff further contended that after the surrender of leasehold rights, there was lease agreement entered into between the plaintiff and the original owners-the second and third defendants on 05.06.2010. Thereby, the plaintiff is entitled for the possession of the property. It is further contended that the sixth and seventh defendants who are the GPA holders of Budmal will not get any right over the property as after the death of Budmal, GPA also extinguishes and dies along with the executor. Therefore, the sixth and seventh defendants have no right to lease out the property to the fourth defendant. Thereby, fourth defendant is not entitled for the suit schedule property. To prove the said contention, the plaintiff has produced the agreement entered into between the first defendant and the plaintiff under Ex.P2. The additional documents produced by the plaintiff reveals that the said Rajendra Kumar-first defendant, after executing the lease in favour of the plaintiff, has surrendered his leasehold rights to 28 the original owners-second and third defendants on 17.03.2010. The Deed of Surrender of Lease dated 17.03.2010 clearly reveals that the share of Rajendra Kumar including 10.7% as a legal heir of Budmal and 25% of his share was surrendered to the original owners i.e., second and third defendants. Admittedly, the original Lease Deed entered into between Budmal and the original owners expired on 03.09.2011.
28. It is also found in the documents produced by the plaintiff-first respondent that a Deed of Surrender of Lease is executed by all the legal heirs of Budmal in favour of the original owners i.e., second and third defendants on 28.03.2011. Thereby, the entire leased property has been surrendered by Budmal's legal heirs and one of the lessee i.e., first defendant in favour of the original owners prior to expiry of the leasehold rights which expires on 03.09.2011. Thereby, the lands or schedule premises were reverted back to the second and third defendants and thereby, all the legal 29 heirs of Budmal and first defendant have lost their leasehold rights.
29. However, prior to the surrendering of the leasehold rights by the first defendant, he has already entered into lease agreement with the plaintiff on 23.02.2010 under Ex.P2 and subsequently, on 25.02.2010, the sixth and seventh defendants executed another lease agreement in favour of the fourth and fifth defendants under Ex.D3. The dispute is mainly on the ground that whether the sixth and seventh defendants have any leasehold rights for entering into agreement with the fourth and fifth defendants under Ex.D3 as on 25.02.2010. The fourth defendant has also produced Ex.P5, Memorandum of Understanding dated 23.11.2009 entered into between the sixth and seventh defendants as GPA holders of Budmal in favour of Shantha and Meena. The fourth defendant has also relied upon Exs.D6 and D7-Judgment and decree passed by the City Civil Court in the suit filed by the fourth and fifth defendants 30 against the sixth and seventh defendants wherein decree is granted directing not to interfere with the schedule premises.
30. As stated above, the sixth and seventh defendants executed the lease agreement in favour of the fourth and fifth defendants under Ex.D3 on 25.02.2010. It is pertinent to note that the sixth and seventh defendants are claiming share as GPA holders of Budmal. The said Budmal after executing the GPA in favour of sixth and seventh defendants as per Ex.D2 on 11.11.2008, he died on 28.12.2009. Once Budmal dies, the execution of the GPA in favour of the sixth and seventh defendants also extinguishes and no right will continue in favour of the sixth and seventh defendants under Ex.D2 and Ex.D2 has no legal value. Therefore, the sixth and seventh defendants have no right to execute any lease agreement in favour of the fourth defendant and the fourth defendant will not get any right from the sixth and seventh defendants which is based upon the GPA which has no value in the eye of law.
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31. That apart, as per the document produced by the plaintiff, all the legal heirs of Budmal including the sixth and seventh defendants, other than the first defendant have surrendered the leasehold rights in favour of the original owners i.e., the second and third defendants on 28.03.2011. Thereby, even though the sixth and seventh defendants have executed the lease agreement as a GPA holders, it has no value and even otherwise, as legal heirs of Budmal, if they are having any share i.e., 10.7% each is also surrendered to the original owners. Thereby, the fourth defendant will not derive any leasehold right from the sixth and seventh defendants. After surrendering the leasehold rights by the legal heirs of Budmal, there is no agreement entered into between the fourth defendant and the second and third defendants who are original owners.
32. Once the original legal heirs of Budmal have surrendered the leasehold rights to the second and third 32 defendants on 28.03.2011, the leasehold rights comes to an end. Even otherwise, the fifth and sixth defendants are claiming rights through power of attorney executed by Budmal, in view of the death of Budmal, the power of attorney loses its power and the sixth and seventh defendants lose legal right under the said power of attorney. In other words, on both count, the sixth and seventh defendants have lost leasehold right as a legal heir of Budmal as well as GPA holder of Budmal in view of surrendering of leasehold rights to the original owners and the death of Budmal. Therefore, Ex.D2-Power of Attorney will not come to the aid of appellant/fourth defendant and the fourth defendant cannot claim any leasehold right under Ex.D3 which was executed by the sixth and seventh defendants.
33. On the other hand, Exs.D6 and D7 is a copy of judgment and decree obtained by the fourth and fifth defendants by filing suit against the sixth and seventh 33 defendants and making the first defendant as party. It is nothing but the judgment between lessee against lessor based upon Ex.D3 which has no value in view of losing legal right by the sixth and seventh defendants due to the death of Budmal and surrendering of the leasehold rights to the second and third defendants. Therefore, Ex.D6 will not come to the aid of the fourth defendant and the plaintiff was not party to the said suit.
34. Though appellant's counsel has produced the Deed of Surrender of Lease said to be executed by the first defendant surrendering the leasehold rights to Budmal on 20.10.2001, but in view of the Certificate issued by the Syndicate Bank as well as South Indian Bank, the first defendant continued to receive 25% of the rent upto 2009 from the said two banks who are the lessees. Therefore, the documents dated 20.10.2001 produced by the appellant is not useful to the appellant's case.
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35. On the other hand, the plaintiff is successful in proving that he has entered into agreement with the first defendant on 23.02.2010 and subsequently, on 17.03.2010 he has surrendered the leasehold right to the second and third defendants. In the Deed of Surrender of Lease there is a recital at paragraph-10 which is as under:
"That a premises measuring about 4750 square feet on the ground floor has been let to Sri.Chail Singh of Reliance Stationery World having business at No.20, Krishna Building, Avenue Road, Bangalore-560 002, under a lease agreement dated 23/02/2010, after the death of the father of the first party Sri.A.Budmal and all the rights created under the lease agreement dated 23/02/2010 in favour of Sri.Chail Singh are herewith passed on to the second party."
36. On perusal of the above recital in the Deed of Surrender of Lease executed by the first defendant in favour of the second and third defendants, it is clearly mentioned that he is passing the lease agreement entered into between himself (first defendant) and the plaintiff to the original owners viz., M.R.Prakash and R.Vinaykumar, second and 35 third defendants. Therefore, the plaintiff entered into agreement with the first defendant and subsequently, it was agreed by the second and third defendants who have taken over the said lease agreement from the first defendant, the plaintiff continued to be lease agreement holder of the original owners i.e., the second and third defendants. Therefore, I am of the view that the plaintiff is successful in proving that he has entered into lease agreement with the original owners under Ex.P2 and thereby, he is entitled for the possession of the said premises. On the other hand, the fourth defendant has forcibly entered into the premises based upon Ex.D3-Lease Agreement entered with sixth and seventh defendants which has no legal value. Therefore, the suit of the plaintiff is required to be decreed and the fourth and fifth defendants shall vacate the premises and hand over the vacant possession to the plaintiff.
36
37. Therefore, I answer Point Nos.i and ii in favour of the first respondent/plaintiff and Point No.iii in negative against the appellant.
38. Interlocutory Applications filed by both the parties for production of additional documents are taken on record. The said Interlocutory Applications are accordingly allowed. Point No.iv is answered accordingly.
39. In view of the above findings, the Trial Court has rightly decreed the suit based upon the evidence and there is no error committed by the Trial Court which calls for interference by this Court. Therefore, the appeal filed by the fourth defendant deserves to be dismissed.
40. Accordingly, the appeal filed by the fourth defendant is hereby dismissed.
Pending I.As., if any, do not survive for consideration and accordingly, the same stand disposed of.
Sd/-
JUDGE NB/KJJ CT: SI