Karnataka High Court
Sri G Bhaskar vs Sri Shivamani on 12 March, 2020
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12th DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
REGULAR FIRST APPEAL No.1819/2013 (EJE)
BETWEEN:
SRI G.BHASKAR
S/O V.GOVINDAN,
AGED ABOUT 51 YEARS,
R/AT No.98, 1ST 'A' CROSS,
CHOLURPALYA,
MAGADI ROAD,
BANGALORE-560 023.
...APPELLANT
(BY SRI B.SHANKAR LINGAPPA, ADV., FOR
SRI NAGARAJ S., ADV.,)
AND:
1. SRI SHIVAMANI
S/O LATE T.KRISHNAIAH SHETTY,
SINCE DECEASED BY LRS
1(a) SMT. ANUSUYA,
W/O LATE SHIVAMANI,
AGED ABOUT 56 YEARS,
1(b) SRI S.KAMALESH
S/O LATE SHIVAMANI,
AGED ABOUT 33 YEARS,
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1(c) SRI S.OMPRAKASH
S/O LATE SHIVAMANI,
AGED ABOUT 29 YEARS,
1(d) SMT. BHANU
D/O LATE SHIVAMANI,
AGED ABOUT 24 YEARS,
ALL ARE RESIDING AT
No.14, 2ND CROSS,
MANJUNATH NAGAR,
MAGADI ROAD,
BANGALORE-560 023.
...RESPONDENTS
(BY SMT. ANNAPURNA V.W., ADV., FOR
SMT. S.M.USHA, ADV.,)
THIS RFA IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED
13.08.2013 PASSED IN O.S.7776/2007 ON THE FILE OF
THE XLIV ADDL. CITY CIVIL AND SESSIONS JUDGE,
BENGALURU, DECREEING THE SUIT FOR EJECTMENT.
THIS RFA COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Appeal is directed against the judgment and decree dated 13.08.2013 passed in O.S.No.7776/2007 by XLIV Additional City Civil and Sessions Judge, 3 Bengaluru, wherein the suit of the plaintiffs came to be decreed and the defendant was directed to vacate and hand over the schedule premises to the plaintiffs within a period of three months.
2. In order to avoid confusion and overlapping, the parties herein are referred to in accordance with their rankings as held by them before the trial Court.
3. The appellant is defendant/tenant and respondents are plaintiffs/landlord.
4. The substance of the case of the plaintiffs is that being the sole and absolute owner of the schedule premises, which was leased to the defendant on 26.04.2003, wherein the possession was delivered in the capacity of lease under the security deposit of Rs.1,60,000/- and as per the terms of lease agreement, there was no rental to the schedule premises. Thus, the mutual understanding between the parties go to show 4 that the plaintiffs/landlord was not under the obligation of paying interest and deposited the amount with a reciprocal. As per the mutual understanding between the parties, there was no obligation on the defendant to pay rentals to the schedule premises during the subsistence of the lease period. Such being the state of affairs, because of difference of opinion between the parties, OS.No.4126/2006 came to be filed. The said suit came to be disposed of. There was a compromise on 05.09.2006, wherein the defendant agreed to pay Rs.2,000/- as monthly rentals from July, 2007, but he did not comply with the same. Since, the defendant is using the schedule premises unauthorizedly and he is liable to pay damages of Rs.1,50,000/-, which is calculated at the rate of Rs.15,000/- per month for ten months.
5. The defendant resisted the suit by filing the written statement. However, it is admitted by the 5 defendant that the plaintiffs are the owner of the schedule premises. The contention of the defendant is that the possession of the schedule premises was delivered under the mortgage deed. Thus, the possession of the schedule premises by the defendant being a lawful one, he is not liable to pay any rent or damages. Further the contention of the defendant is that he was a mortgagee in possession. Hence, the claim of the plaintiffs that the defendant required to pay damages of Rs.1,50,000/-, which is calculated at the rate of Rs.15,000/- per month for ten months does not arise.
6. The trial Court framed the issues on the claim of the plaintiffs regarding tenancy, termination and arrears of rent and the relief of eviction.
7. The learned trial judge was accommodated with the oral evidence of P.Ws.1 and 2-Sri Shivamani and Sri S.K.Kamalesh and marked Exs.P.1 to P.8 as 6 documentary evidence on behalf of plaintiffs and oral evidence of defendant - G.Bhaskar as D.W.1 and marked Exs.D.1 to D.3 on behalf of the defendant. The parties in the evidence reiterated the contentions in their respective pleadings. The said suit came to be decreed and it is challenged by the defendant in this appeal.
8. Sri S.Nagaraj, learned counsel for the appellant/defendant submits that there is a bar to the suit at threshold, in view of the absence of jural relationship. The place of the defendant is a mortgagee in possession. The other alternative available to the plaintiffs is to go for redemption by tendering the mortgage money. It is submitted that the defendant executed the mortgage deed on 26.04.2003. In the circumstances, only in order to harass and to obtain the eviction order, the plaintiff has filed a suit in O.S.No.7776/2007.
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9. Smt. Annapurna, learned counsel for the respondents/plaintiffs submits that the defendant has been squatting over the property since 2006. He is inclined only to harass the plaintiffs.
10. Hence, it is necessary to make a mention to Section 106 of Transfer of Property Act, 1882, regarding termination of tenancy, which reads as under:
"106. Duration of certain leases in absence of written contract or local usage.--
(1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice.
(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice.
(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the 8 period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.
(4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property."
11. Further the scope of mortgage as contended by the learned counsel for the appellant/defendant is that the amount of Rs.1,60,000/- was lent at the request of the plaintiff. Thus, the deed was executed by receiving amount as a security for redemption of debt. Though, it is not specifically stated the point which the learned counsel for the appellant/defendant wanted to drive that deed itself is the mortgage, where there is no need or requirement for the appellant/defendant to pay rent and enjoy the schedule premises. The period 9 mentioned under the deed is three years and it is dated 26.04.2003.
12. The suit was filed on 01.10.2007. Before that, it is necessary to take an account of OS.No.4126/2006 filed by the defendant on 08.05.2006 against the plaintiff for the relief of permanent injunction in respect of the schedule property.
13. The defendant/appellant herein had asserted in the said suit (in the capacity of plaintiff) that he was the tenant in possession over the schedule property and the landlord (plaintiff herein) was trying to dispossess him illegally. The said suit came to be decreed in favour of plaintiff (defendant herein) on 26.02.2009. There is a mention of the same in the plaint connecting to the present suit. The present suit is filed for the ejection of the defendant from the suit schedule property which is through legal course. 10
14. It is necessary to place on record that the present suit is filed by the plaintiffs seeking eviction of the defendant on the ground of termination of deed dated 26.04.2003, which is the lease agreement. However, because of change of circumstance or development, the defendant makes U-turn and wants to take the schedule premises by taking advantage of mortgage.
15. It is quite usual that the transaction of such type come into existence, wherein the parties enter into a contract by agreeing that interest will not be paid for the amount of deposit and rent will not be paid by the tenant.
16. The key factor in the mortgage is the existence of debt and approach is made by the borrower as contemplated under Section 58 of the Transfer of Property Act. It is the transfer of immovable property as a security for redemption of debt or for the purpose of 11 an obligation, which gives right to pecuniary obligation. Thus, the trust to be terminated. In case, if approach is made by the party who is in need of money and borrows it as a security for the redemption of debt, the deed has to be executed reducing the execution into a writing. However, if a person who is in need of money offers immovable property as a security for redemption of debt, in such case, the lease is a legal action as contemplated under the provisions governing the Law of Mortgage under the Transfer of Property Act. Thus, whether the intention between the parties is to pay money as it is deposited.
17. More particularly, the defendant cannot blow both hot and cold at the same time having filed a suit for injunction by claiming that he is 100% tenant cannot dilute his claim by taking U-turn by proclaiming interest to that of a mortgage. Thus, the learned counsel 12 for the appellant/defendant submitted that there is no termination of tenancy in respect of schedule premises.
18. It is necessary to make a mention that the termination of tenancy or lease would take place only when the tenancy is in existence and notice is ordered, because of violation by either of the parties and revoke the same. However, Ex.P.4 is the legal notice issued by the plaintiff to the defendant. In this connection, the trust at the end what to be reduced is the relationship between the land lord and tenant. The plaintiff filed a suit for eviction. The documents produced also fails by virtue of the mandatory provision under the Stamp Act and the Registration Act. Therefore, I do not find any infirmity or illegality and perversity in the judgment of the trial Court. Hence, the appeal is liable to be dismissed with cost. Accordingly, it is dismissed. 13
The appellant/defendant is directed to vacate and hand over the possession of the schedule premises to the respondents/plaintiffs within a period of three months.
Sd/-
JUDGE PB