Karnataka High Court
A.M.R. Reddy vs C. V. Jayaram on 22 June, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC:22820
RFA No. 1524 of 2023
C/W RFA No. 1799 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR FIRST APPEAL NO. 1524 OF 2023 (RES)
C/W
REGULAR FIRST APPEAL NO. 1799 OF 2023 (EJE)
IN RFA NO.1524 OF 2023
BETWEEN:
SHRI. C. V. JAYARAM
S/O LATE VENKATACHALAIAH,
AGED ABOUT 61 YEARS,
R/AT NO.162/2,
TANK BUND ROAD,
BENGALURU - 560 002.
...APPELLANT
Digitally signed by
SUMITHRA R
Location: HIGH (BY SMT. G.R. VEDAVENKAMAMBA ADVOCATE FOR
COURT OF
KARNATAKA SRI. V B SHIVA KUMAR, ADVOCATE)
AND:
AMR REDDY
SINCE DECEASED BY HIS LR
SMT. ADHILAKSHMI
W/O LATE A M R REDDY,
AGED ABOUT 67 YEARS,
R/AT NO.1345,
NANDA DEEPA NILAYA,
1ST MAIN ROAD,
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NC: 2024:KHC:22820
RFA No. 1524 of 2023
C/W RFA No. 1799 of 2023
BEHIND RAGHU MEDICALS,
YESHWANTHAPURA,
BENGALURU - 560 022.
...RESPONDENT
(BY SRI. GIREESHA KODAGI, ADVOCATE)
THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 14. 06. 2023 PASSED IN
OS. No. 25706/2015 ON THE FILE OF THE LXXIV ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT,
BANGALORE (CCH -75) DECREEING THE APPEAL SUIT
EJECTMENT AND FOR ARREARS OF RENT.
IN RFA NO. 1799 OF 2023
BETWEEN:
A.M.R. REDDY
SINCE DEAD BY LRS
SMT. ADHILAKSHMI,
W/O LATE A.M.R. REDDY,
AGED ABOUT 59 YEARS,
R/AT NO.1345, "NANDA DEEPA NILAYA",
1ST MAIN ROAD, BEHIND RAGHU MEDICALS,
BENGALURU NORTH, YESHWANTHAPURA,
BENGALURU - 560 022.
REPRESENTED BY HIS GPA HOLDER,
SRI SURYAPRASAD,
S/O LATE NANJAPPA,
AGED ABOUT 64 YEARS,
R/AT NO.39/2,
MAVALLI TANK BUND ROAD,
BANGALORE - 560 002
...APPELLANT
(BY SRI. GIREESHA KODGI.,ADVOCATE)
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NC: 2024:KHC:22820
RFA No. 1524 of 2023
C/W RFA No. 1799 of 2023
AND:
1. C. V. JAYARAM
AGED ABOUT 61 YEARS,
S/O LATE VENKATACHALLAIAH,
VENKATESHWARA GEN SET,
JOURNALIST COLONY,
NO.162/2,
TANK BUND ROAD,
BANGALORE - 560 002
...RESPONDENT
(BY SMT. G.R. VEDAVENKAMAMBA ADVOCATE FOR
SRI. V B SHIVA KUMAR, ADVOCATE)
THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE
1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED
14.06.2023 PASSED IN OS NO.25706/2015 ON THE FILE OF
LXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU., (CCH-75), DECREEING THE SUIT FOR
EJECTMENT.
THESE APPEALS, COMING ON FOR DICTATING
JUDGMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
RFA.No.1524/2023 is filed by the defendant challenging the judgment and decree dated 14.06.2023 passed in O.S.No.25706/2015 by LXXIV Addl. City Civil and Sessions Judge, Mayohall Unit, Bengalluru (CCH-75). The said suit filed for ejectment was decreed. -4-
NC: 2024:KHC:22820 RFA No. 1524 of 2023 C/W RFA No. 1799 of 2023 RFA.No.1799/2023 is filed by the plaintiff challenging the aforesaid judgment and decree for enhancement of damages/mesne profit.
2. The ranks of the parties, is as stated before the trial Court for easy reference and convenience.
3. The brief facts of the case is that:
It is the case of the plaintiff that he is the owner of the suit property and has acquired the same under two registered sale deeds dated 02.04.2005. Consequently, katha was effected in the name of the plaintiff and he has been paying tax to the BBMP. The defendant on the basis of the rent agreement dated 21.06.1997 executed by the plaintiff's vendor, defendant is in possession of the suit property as a tenant. The rent agreement dated 21.06.1997 is for ten months. Therefore, due to efflux of time, tenancy expired. Therefore, the plaintiff being purchaser of the suit property issued notice terminating the tenancy of the defendant.-5-
NC: 2024:KHC:22820 RFA No. 1524 of 2023 C/W RFA No. 1799 of 2023
4. Upon issuing notice to the defendant asking to vacate and handover possession of the suit property and also to pay further arrears of rent amount of Rs.1,08,000/- for a period of 36 months, but the defendant has not vacated the premises. Hence, the plaintiff has filed the suit for ejectment.
5. The defendant has filed the written statement denying all the averments made in the plaint except admitting that M.Bhadrachalapathy Rao was the original owner and he put the defendant in possession of the suit property as tenant by executing rent agreement dated 21.06.1997. The defendant has denied that M.Bhadrachalapathy Rao had sold the suit property to the plaintiff. Further it is the case of the defendant that M.Bhadrachalapathy Rao died without having any issue. Therefore, the suit property became evacuee vest with the State Government.
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6. Further it is the case of the defendant that the plaintiff has filed the suit in SC.No.15021/2015 against the defendant and the said suit was dismissed as not maintainable holding that the relationship of landlord and tenant is in doubt. It is the further case of the defendant that since the plaintiff does not have any title and interest over the suit property and the plaintiff started interference with the possession of the defendant, therefore, the defendant filed the suit in O.S.No.8698/2006 for the relief of permanent injunction and the trial Court has decreed the suit. Therefore, it is the contention of the defendant that there is no relationship of landlord and tenant between the plaintiff and defendant. Hence, the suit for ejectment is not maintainable.
7. Based on the pleading, the trial Court has framed the following issues on 17.04.2017 and 17.11.2017, but later on 21.01.2023 the issues were recasted as below:
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NC: 2024:KHC:22820 RFA No. 1524 of 2023 C/W RFA No. 1799 of 2023 ISSUES dt: 17.04.2017 "1. Whether the plaintiff proves that the defendant has violated the terms and conditions of the rent agreement and duly issued a termination notice to the defendant?
2. Whether the defendant proves that he has paid the rent upto date therefore, the suit of the plaintiff deserves to be dismissed as contended in the written statement?
3. Whether the plaintiff proves that he is entitled for the arrears of rent and future damages and penalty as prayed for?
4. Whether the plaintiff proves that he is entitled for the vacant possession of the suit schedule property as per the registered document filed by the plaintiff?
5. What order or decree?
ADDITIONAL ISSUES dt: 17.11.2017
1. Whether the plaintiff proves that he is entitled for the vacant possession of the suit schedule property as per the registered document filed by the plaintiff?
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2. Whether defendant proves that the plaintiff is a fictitious person and playing fraud before this court and filed the present suit by abusing the process of law?
7. Subsequently on 21.1.2023 the aforementioned issues were recasted as follows:
1. Whether the plaintiff proves that the defendant is in possession of the suit property as tenant under him?
2. Whether plaintiff proves that defendant is liable to pay of arrears of rent of Rs. 1,08,000/-?
3. Whether plaintiff proves that she validly terminated the tenancy of defendant by issuing termination notice?
4. Whether defendant proves that after the death of M. Bhadrachalapathy Rao, the suit property became evacuee property?
5. Whether the defendant proves that the suit is bad for non-joinder of party?
6. Whether the plaintiff is entitled for the relief of mesne profits/damages? If entitled, what would be the quantum?
7. What Order or Decree?
8. Initially, the plaintiff himself was examined as P.W.1, but without facing cross-examination, the plaintiff -9- NC: 2024:KHC:22820 RFA No. 1524 of 2023 C/W RFA No. 1799 of 2023 died. Then, the wife of plaintiff was brought on record as legal representative of the deceased plaintiff and she executed General Power of Attorney to P.W.2 and P.W.2 was examined and produced the documentary evidence as Ex.P.1 to Ex.P.14. The defendant was examined as D.W.1 and examined the documentary evidence as Ex.D.1 to Ex.D-20.
9. The trial Court upon appreciating the evidence on record has decreed the suit by directing the defendant to vacate and handover possession of the suit property to the plaintiff and also decreed the suit directing the defendant to pay arrears of rent amount of Rs.1,08,000/-
and damages/mesne profit of Rs.3,000/- p.m., from the date of suit till handing over the vacant possession of the property to the plaintiff on the reason that the plaintiff has proved that the defendant is in possession over the suit property as tenant and as per Section 109 of the Transfer of Property Act (hereinafter referred to as "TP Act" for
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NC: 2024:KHC:22820 RFA No. 1524 of 2023 C/W RFA No. 1799 of 2023 short), the plaintiff has entered into shoe of his vendor M.Bhadrachalapathy Rao and upon issuing notice, terminated tenancy. Further, the trial Court has calculated the arrears of rent amount at Rs.3,000/- p.m., and decreed the suit for damages.
10. Learned counsel for the appellant submitted that there is no jural relationship of landlord and tenant between the plaintiff and defendant and thus, the suit for ejectment is not maintainable. The defendant has stopped paying rent to the plaintiff on 02.04.2005 itself on the ground that the defendant is not tenant under the plaintiff. Therefore, the suit for ejectment is not maintainable. Further, the suit is barred by limitation as per Article 113 of the Limitation Act, but the trial Court has wrongly held that Article 65 of the Limitation Act is applicable. Further submitted that when the defendant is terminated in the year 2005, if the defendant's possession has become unlawful according to the plaintiff, then the plaintiff ought
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NC: 2024:KHC:22820 RFA No. 1524 of 2023 C/W RFA No. 1799 of 2023 to have filed the suit for possession, but not for ejectment, but, for the best reasons known to the plaintiff, he has not filed the suit for possession, therefore, submitted that title of the plaintiff is in doubtful circumstances. Therefore, the plaintiff has not filed the suit for possession, at the same time, the suit filed for ejectment is not maintainable as there is no jural relationship of landlord and tenant between the plaintiff and defendant. Therefore, on all these grounds, prays to allow the appeal in RFA No.1524/2023 and consequently, dismiss the appeal in RFA No.1799/2023.
11. On the other hand, learned counsel for the respondent has also filed the appeal in RFA No.1799/2023 justifying the judgment and decree passed for eviction is correct as there is no jural relationship of landlord and tenant is proved. Further, submitted that the rent amount is Rs.6,000/- p.m., but the trial Court has not considered the same and accordingly, decreed for lesser amount of
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NC: 2024:KHC:22820 RFA No. 1524 of 2023 C/W RFA No. 1799 of 2023 rent amount and damages. Therefore, for enhancement of arrears of rent amount and damages, the appeal is filed by the plaintiff. Hence, prays to allow the appeal and dismiss the appeal filed by the defendant.
12. Upon hearing the learned counsel appearing for the parties, the following points arise for consideration:
i. Whether, under the facts and circumstances involved in the case, the suit filed for ejectment is not maintainable as contended by the defendant that there is no relationship of landlord and tenant?
ii. Whether, under the facts and circumstances involved in the case, tenancy was termintated on 02.04.2005 itself and the defendant became unlawful, under such circumstances, the suit for ejectment is maintainable?
iii. Whether the judgment and decree passed by the trial Court decreeing the suit filed by the plaintiff requires interference/modification by this Court?
13. One M.Bhadrachalapathy Rao was the owner of the suit property (erstwhile owner). The erstwhile owner
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NC: 2024:KHC:22820 RFA No. 1524 of 2023 C/W RFA No. 1799 of 2023 has inducted the defendant as tenant over the suit property by agreement of rent dated 21.06.1997 and therefore, the defendant is in possession since 1997 and the same is not disputed by the defendant. The erstwhile owner has sold the suit property in favour of the plaintiff- A.M.R Reddy through the registered sale deed dated 02.04.2005. Ex.P.2 and Ex.P.3 are the khatha certificate and tax paid receipts, Ex.P.5 is the rent agreement dated 21.06.1997, Ex.P-6 is the legal notice dated 09.03.2009 issued under Section 106 of TP Act directing the defendant to vacate and handover possession of the suit property.
14. Upon considering the evidence of P.W.2 and documentary evidence, it is proved that the erstwhile owner by name M.Bhadrachalapathy Rao has sold the property to the plaintiff and the plaintiff has become the owner and title holder of the suit property and consequently, the name of plaintiff appeared in the revenue assessment records including khatha.
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NC: 2024:KHC:22820 RFA No. 1524 of 2023 C/W RFA No. 1799 of 2023
15. It is the submission made by the learned counsel for the defendant that the plaintiff is not in any way concerned to the suit property and cannot claim right over the property. Therefore, Section 109 of TP Act is not applicable. Further, it is the argument of learned counsel for the appellant/defendant that there is no jural relationship of landlord and tenant between the plaintiff and defendant. Further, submitted that the defendant is in possession. Therefore, the suit for ejectment is not maintainable, since the defendant has sought for payment of rent to the plaintiff. Therefore, the suit filed for ejectment is not maintainable. Further, the suit is barred by limitation as per Article 113 of the TP Act.
16. Upon considering all these averments along with the evidence placed by the plaintiff and defendant and Ex.D.2 to Ex.D.9 which are the documents pertaining to the suit filed by the plaintiff in O.S.No.8698/2006 filed for permanent injunction, in the said suit, the defendant
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NC: 2024:KHC:22820 RFA No. 1524 of 2023 C/W RFA No. 1799 of 2023 has contended that he is in possession of the suit property by virtue of rent agreement dated 21.06.1997 executed between erstwhile owner M.Bhadrachalapathy Rao and defendant, but defendant has denied the tenancy under the plaintiff.
17. Ex.P.6 is the legal notice dated 09.03.2009 issued by the plaintiff A.M.R Reddy terminating the tenancy of defendant over the suit property by giving 15 days time asking the defendant to vacate and handover the possession of the suit property to the plaintiff. The defendant is denying that he is the tenant under the plaintiff. During the subsistence of rent agreement between erstwhile owner and defendant, the plaintiff has purchased the suit property from M.Bhadrachalapathy Rao on 02.04.2005. Therefore, the plaintiff as per Section 109 of the TP Act the transferee will get right of lessor of defendant. The defendant has not denied the execution of rent agreement dated 21.06.1997 and tenant under the erstwhile owner. When this being the fact when erstwhile
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NC: 2024:KHC:22820 RFA No. 1524 of 2023 C/W RFA No. 1799 of 2023 owner sold the property to the plaintiff and then the plaintiff acquired all the right and interest over the property, thus tenancy is continued with the plaintiff. Therefore, the possession of the defendant is in the capacity of tenant over the property as the plaintiff's rights are transferred as per Section 109 of TP Act. When the defendant has stopped payment of rent to the plaintiff denying the ownership of the plaintiff that does not cease to be the tenant over the suit property. When the defendant has contended that he stopped payment of rent to the plaintiff, the possession of the defendant has become unlawful but tenancy is not ceased. Therefore, the defendant cannot be termed as trespasser, but the possession of the defendant has become unlawful because of non-payment of rent amount, but the tenancy is continued as right is created in favour of the plaintiff as per Section 109 of TP Act.
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NC: 2024:KHC:22820 RFA No. 1524 of 2023 C/W RFA No. 1799 of 2023
18. The plaintiff being successor in the interest whether acquires these rights and the rights acquired by the lessor would enure to the benefit of plaintiff is the question to be considered here. In this regard, the Hon'ble Supreme Court in the case of Vasantkumar Radhakisan Vora (dead) by his LRs Vs. Board of Trustees of the Port of Bombay and Another reported in (1991) 1 SCC 761, their Lordship was pleased to observe at paragraph Nos.6, 7, 8, 9, 10 and 11 as follows:
"6. Undoubtedly, by issuance of notice to quit automatically the right created thereunder, namely, cessation of the lease, does not become effective till the period prescribed in the notice or in the statute i.e. Section 106 expires. On expiry thereof the lease become inoperative and the lessor acquires right to have the tenant ejected. When he fails to deliver vacant possession, the lessor would be entitled to have the tenant ejected and to take possession in due process of law. The successor in interest whether acquires these rights and the rights acquired by lessor would enure for his benefit is the crucial question.
7. Halsbury's Laws of England (4th edn., Vol. 27, paragraph 193) is discussed the right accrued to the transferee of the benefit of the notice to quit issued by the predecessor in title thus:
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NC: 2024:KHC:22820 RFA No. 1524 of 2023 C/W RFA No. 1799 of 2023 "The notice when once given enures for the benefit of the successors in title of the landlord or tenant giving it."
8. Hill and Redman in Law of Landlord and Tenant (17th edn., Vol. I, at page 488, paragraph
405) have stated to the similar fact thus:
"The notice when once given enures for the benefit of the successor in title of the landlord or tenant giving it."
9. In Mulla's commentary on the Transfer of Property Act (6th edn., at page 676) it is also stated thus:
"Notice enures for the benefit of the successor in title of the lessor or lessee giving it."
10. In Chitaley's Transfer of Property Act (4th edn., 1969, Vol. III, Note 35) it is stated thus:
"Where the lessor gives notice to quit and then assigns his interest to another the assignee can take advantage of the notice."
11. In N.P.K. Raman Menon v. Collector of Malabar [AIR 1924 Mad 904, 905 : 20 MLW 433 :
82 IC 956] a Division Bench of the Madras High Court held that:
"...English cases recognise that the person who is the landlord and entitled to possession, on the date of the notice to quit, is the proper person to give the notice and that an assignee within the currency of that notice can take advantage of the notice sent by his assignor and rely upon it, when he brings a suit for recovering possession."
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19. In Ex.D.3 the defendant has filed the suit for injunction by stating that he is the tenant of erstwhile owner M.Bhadrachalapathy Rao by virtue of rent agreement dated 21.06.1997. In the said suit, the plaintiff was also defendant No.1 as party purchased the property on 02.04.2005. The appellant/defendant has continued to pay rent amount till 20.06.2006 and also the plaintiff admitted that the rent amount was enhanced from Rs.3,000/- pm., to Rs.3,600/- pm. It is the case of the appellant in the said O.S.No.8698/2006 that after June, 2006 whereabouts of erstwhile owner M.Bhadrachalapathy Rao was not known. Therefore, he did not continue to pay the rent amount. It is the case of the appellant in the said suit that since the plaintiff has locked the premises, therefore, he was constrained to file a complaint before the police. Therefore, at that point of time, the defendant herein knew the plaintiff has become owner of property. Therefore, just because the appellant/defendant discontinued to pay the rent amount that cannot be
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NC: 2024:KHC:22820 RFA No. 1524 of 2023 C/W RFA No. 1799 of 2023 doubted the relationship of landlord and tenant as the plaintiff acquired the right as a transferee of the erstwhile owner as per Section 109 of TP Act. Therefore, in this regard, it cannot be said that the defendant is the trespasser, but by virtue of non-payment of rent amount, the possession of the defendant has become unlawful. Therefore, the suit filed by the plaintiff for ejectment is maintainable. Accordingly, I answer issue No.1 in the Negative , issue No. 2 in affirmative and issue No. 3 in the Negative.
20. Here when it is held that the defendant is the tenant, therefore, Article 65 of Limitation Act is applicable, but not Article 113 of the Limitation Act. In this regard, upon issuance of notice as per Ex.P.6, the suit filed for ejectment is within the period of limitation as per Article 65 of the Limitation Act. Therefore, the suit filed for ejectment is within the period of limitation.
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NC: 2024:KHC:22820 RFA No. 1524 of 2023 C/W RFA No. 1799 of 2023
21. The trial court has decreed the suit of the plaintiff by directing the defendant to pay a sum of Rs.1,08,000/- by calculating the rent amount of Rs.3,000/- pm., for three years, but the defendant has admitted that the rent amount is increased to Rs.3,600/- pm., in the suit in O.S.No.8698/2006. Therefore, calculating arrears of rent amount at Rs.3,000/- pm., requires modification by holding that the plaintiff is entitled for arrears of rent amount at Rs.3,600/- pm., for 36 months and likewise the damages/mesne profit granted at Rs.3,000/- pm., is also required to be enhanced to Rs.3,600/- pm., from the date of suit till handing over the vacant possession of the suit property to the plaintiff. Therefore, the appeal filed by defendant in RFA.No.1524/2023 is found to be devoid of merits, hence, it is liable to be dismissed.The appeal filed by the plaintiff in RFA.No.1799/2023 is liable to be allowed. The plaintiff is entitled for arrears of rent amount at Rs.3,600/- pm., for 36 months and damages/mesne profit is to be awarded at Rs.3,600/- pm., from the date of suit till handing over
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NC: 2024:KHC:22820 RFA No. 1524 of 2023 C/W RFA No. 1799 of 2023 the vacant possession of the suit property to the plaintiff. Hence, the judgment and decree passed by the trial Court is liable to be modified to the extent of modifying the arrears of rent amount and damages/mesne profit as above discussed.
22. Accordingly, I proceed to pass the following ORDER i. RFA.No.1524/2023 is dismissed and RFA.No.1799/2023 is allowed.
ii. The impugned judgment and decree dated 14.06.2023 passed in O.S.No.25706/2015 by LXXIV Addl. City Civil and Sessions Judge, Mayohall Unit, Bengalluru (CCH-75), is modified to the extent that the plaintiff is entitled for arrears of rent amount at Rs.3,600/- pm., for 36 months and damages/mesne profit is to be awarded at Rs.3,600/- pm., from the date of suit till handing over the vacant possession of the suit property to the plaintiff.
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NC: 2024:KHC:22820 RFA No. 1524 of 2023 C/W RFA No. 1799 of 2023 iii. The defendant is directed to vacate and handover the vacant possession of the suit property to the plaintiff is hereby confirmed.
iv. The defendant has given time for a period of three months to vacate the premises from today, subject to deposit of arrears of rent amount and damages/mesne profit within a period of one month from the date of this order.
v. No order as to costs.
vi. Registry is directed to transmit the TCR to the trial
Court forthwith.
vii. Draw decree accordingly.
Sd/-
JUDGE
PB
List No.: 1 Sl No.: 16