Karnataka High Court
Sri Rama Temple Committee vs M/S Veerashaiva Cooperative Society on 18 October, 2022
C.R.P.No.608/2015
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF OCTOBER 2022
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CIVIL REVISION PETITION No.608/2015
BETWEEN:
1. SRI RAMA TEMPLE COMMITTEE
GANDHINAGAR, BENGALURU - 560 009
REP. BY PRESIDENT
SMT.MEERA S
2. SRI R.S.NAIDU
PRESIDENT
SRI RAMA TEMPLE COMMITTEE
BENGALURU
(DIED DURING THE
PENDENCY OF THE CASE)
SMT.MEERA S
AGED ABOUT 62 YEARS
W/O LATE R.S.NAIDU
PRESIDENT
SRI RAMA TEMPLE COMMITTEE
GANDHINAGAR, BENGALURU - 560 009
3. SRI S.UPENDRA
SECRETARY
AGED ABOUT 54 YEARS
SRI RAMA TEMPLE COMMITTEE
GANDHINAGAR, BENGALURU - 560 009
4. SRI Y.M.S.SHARMA
AGED ABOUT 82 YEARS
TREASURER
SRI RAMA TEMPLE COMMITTEE
GANDHINAGAR, BENGALURU - 560 009
5. SRI VASANTHA KUMAR
AGED ABOUT 75 YEARS
4TH CROSS, GANDHINAGAR
BENGALURU - 560 009 ...PETITIONERS
(BY SRI V.RAMESHA BABU, ADVOCATE)
C.R.P.No.608/2015
2
AND:
1. M/S VEERASHAIVA CO. OPERATIVE SOCIETY
APARNA COMPLEX, 1ST FLOOR, S.C.ROAD
BENGALURU - 560 009
A SOCIETY REGISTERED
UNDER CO-OPERATIVE SOCIETIES ACT
REP. BY ITS SECRETARY
2. M/S. SEABIRD TOURIST CENTRE
NO.26. 2ND CROSS
SRI RAMA TEMPLE BUILDING
NEXT TO SANGLI BANK
GANDHINAGAR, BENGALURU-560 009 ...RESPONDENTS
(BY SRI MOHAN.S & SRI RANGASWAMY T R, ADVOCATE FOR R1
SRI P D SURANA, ADVOCATE FOR R2)
THIS CIVIL REVISION PETITION IS FILED UNDER
SECTION 18 OF THE SMALL CAUSES COURT ACT PRAYING TO
SET ASIDE THE JUDGMENT DATED 04.08.2015 PASSED BY THE
COURT OF THE XXIII ADDITIONAL SMALL CAUSES JUDGE AT
BANGALORE (SCCH-25) IN S.C.NO.1355/2012.
THIS CIVIL REVISION PETITION HAVING BEEN HEARD
AND RESERVED ON 23.09.2022 COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
"In dismissing the petitioners' suit for ejectment, whether the trial Court committed illegality?" is the question involved in this case.
2. The petitioners initially filed O.S.No.2387/2005 before the X Additional City Civil Judge, Bangalore against respondent No.1 seeking decree for ejectment. Subsequently, respondent No.2 was impleaded in the case C.R.P.No.608/2015 3 with allegations that respondent No.1 has sub-let the suit property to respondent No.2.
3. The X Additional City Civil Judge, Bangalore by order dated 23.07.2012 referring to the judgment of this Court in CRP No.541/2007 [Abdul Wajid v. A.S.Omkarappa] held that Small Causes Court has jurisdiction to try the suit, therefore transferred the suit to the Small Causes Court. On such transfer, the case was renumbered as S.C.No.1355/2012 before the Small Causes Court, and assigned to VII Additional Small Causes Judge and XXXII Additional Chief Metropolitan Magistrate, Bangalore.
4. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the trial Court.
5. The subject matter of the suit as described in the plaint is premise bearing No.61, II Cross, Gandhinagar, Bangalore with the following boundaries:
East : I Cross
West : Open yard belonging to the plaintiff
C.R.P.No.608/2015
4
North : Property belonging to the plaintiff
South : Conservancy lane
6. The case of plaintiffs in brief is as follows:
Defendant No.1 was tenant of the suit property under the plaintiffs on rent of Rs.225/- per month. The tenancy was monthly tenancy commencing from first of each calendar month. Since the area of the suit premise exceeds 14 square meters and is commercial premises, the Karnataka Rent Act, 1999 is not applicable. Defendant No.1 sub-let the suit premises to defendant No.2 without the knowledge or consent of the plaintiffs. The suit property is required for the plaintiffs' own use and occupation. Therefore the plaintiffs terminated the tenancy of defendant No.1 by notice dated 04.11.2002 calling upon to deliver the vacant possession of the suit property. The notice was served on defendant No.1 on 08.11.2002.
Defendant No.1 is liable to pay the damages at the rate of Rs.8,000/- per month. Thus they sought for decree of ejectment, payment of arrears of rent and damages at the rate of Rs.8,000/- per month from 01.12.2002 till 31.03.2003 and future mesne profits.C.R.P.No.608/2015 5
7. Defendant No.1 though filed written statement did not contest the matter. Defence of defendant No.1 is as follows:
The jural relationship between the plaintiffs and defendant No.1 was admitted. But defendant No.1 vacated the suit property long back and delivered the possession to then office bearers of the plaintiffs' trust. The present office bearers of defendant No.1 have no knowledge of service of termination notice. Defendant No.1 was running fair price shop in the schedule premises. Due to loss, the same was handed over to the Food Department, the shop was closed and the possession was delivered to the trust.
The allegations of sub-letting the property to defendant No.2 were denied. The plaintiffs have to prove the service of termination notice. The liability of defendant No.1 to deliver the possession of the property by paying arrears of rent, damages and future mesne profits was denied. If defendant No.2 is in possession of the property, it is open to the plaintiffs to proceed against him to recover the possession. The suit is not maintainable.C.R.P.No.608/2015 6
8. Defence of defendant No.2 was as follows:
The allegations that defendant No.1 was tenant of the suit property under the plaintiffs was denied. No termination notice was served on defendant No.2. Plaintiff No.1 is the trust. The trustees are not made parties to the suit. Trust is not represented by competent person, therefore the suit was not maintainable. Plaintiff Nos.2 to 5 cannot maintain the suit in personal capacity though they claim to be the office bearers of plaintiff No.1 trust.
Without impleading the proprietor of defendant No.2 the suit is not maintainable. The correctness of schedule property was denied. Defendant No.1 vacated the suit property long back and thereafter the premise was let out to defendant No.2. The plaintiffs have accepted defendant No.2 as tenant. Therefore the suit claiming the possession only for defendant No.1 is erroneous and not liable to pay the mesne profits or damages. He has no other alternative premises for his business. Hence sought for dismissal of the suit.C.R.P.No.608/2015 7
9. On the basis of the aforesaid pleadings, the trial Court framed the following issues and additional issues:
1. Whether the plaintiff proves that the existence of jural relationship as against the defendant on the date of notice?
2. Whether there is lawful termination of tenancy?
3. Whether the plaintiff is entitled for recovery of vacant possession of the schedule property from the defendant?
4. Whether the defendant is entitled for the arrears of rent of Rs.225/- for the month of Nov. 2002?
5. Whether the plaintiff is entitled for damages at the rate of Rs.8,000/- for the period 1.12.2002 to 31.3.2003?
6. What order?
Additional issues framed on 01.02.2010
1. Whether the suit as brought without disclosing the legal character of the first plaintiff of which plaintiffs 2 to 4 are described as President, Secretary and Treasurer is maintainable?
2. Whether plaintiff proves that first defendant has sublet the suit premises to second defendant?
3. Whether second defendant proves that after first defendant vacated, it has become tenant under plaintiff and plaintiff has accepted its tenancy?
4. Whether second defendant proves that suit as brought by plaintiff against it for its ejectment without issuing statutory notice to it is not maintainable?
C.R.P.No.608/20158
10. In support of the case of the plaintiffs, plaintiff No.2 was examined as PW.1 and Exs.P1 to P11 were marked. Defendant No.1 did not lead any evidence. One H.C.Nagarajaiah, the Proprietor of defendant No.2 was examined as DW.1 and on his behalf, Exs.D1 to D56 were marked.
11. The trial Court on hearing the parties by the impugned judgment and decree dismissed the suit on the following grounds:
(i) The plaintiffs' documents do not show that plaintiff Temple is registered under the Hindu Religious Institutions and Charitable Endowments Acts, 1997 ('the Act' for short) as amended by Act 2012.
(ii) There is nothing on record to show that plaintiff No.2 was the Chairman of the Temple Committee and plaintiff Nos.3 to 5 were Secretary, Treasurer and Member of the Temple Committee.
(iii) After death of plaintiff No.2, other trustees were not made parties to the suit. Plaintiff Nos.2 to 5 failed to establish that they are the members of the C.R.P.No.608/2015 9 Executive Committee of plaintiff No.1 temple as required under Sections 23, 24, 24A, 25, 25A and 53 of the Act.
(iv) Since there is dispute with regard to ownership of the property of plaintiff No.1 temple, the Small Causes Court has no jurisdiction to entertain and decide the issue of title of plaintiffs to the suit property. The plaintiffs have failed to prove the measurement of the suit property.
(v) Despite defendant No.2 claiming that Archaka of the temple has let out the property to him in the year 2002, the said Archaka was not examined. The plaintiffs claim that the suit property is No.61, defendant No.2 claims that the property let out to him is property No.27.
The plaintiffs have failed to prove the identity of the property.
(vi) Plaintiff Nos.3 to 5 shall approach the competent Court to establish their status and title over the suit property.
Submissions of Sri V.Ramesha Babu, learned Counsel for the plaintiffs:
12. Section 53 of the Act is applicable only to the institutions notified under Section 23 of the Act. The C.R.P.No.608/2015 10 Commissioner has not notified the plaintiffs' temple. Similarly, Sections 24, 24A, 25, 25A of the Act applies only to the institutions notified under Section 23 of the Act. Since the plaintiff No.1 is not notified institution, the trial Court committed error in dismissing the petition for non-compliance of the provisions of the Act. In the written statement, defendant No.2 gave unequivocal admissions of he being tenant of the property under plaintiff No.1 temple. Therefore Section 116 of the Indian Evidence Act, 1872 ('the Evidence Act' for short) bars the defendants from questioning the title of the plaintiffs. It was the defendants who in collusion with each other entered into sub-tenancy agreement. Therefore it was for defendant No.2 to examine defendant No.1 to prove when and to whom defendant No.1 handed over the possession of the property. Though defendant No.2 claimed that he was inducted by priest of the temple and has paid rent to such priest, he did not examine the said priest though he took summons to the said priest. Therefore he being tenant of the property independently was not proved and adverse inference has to be drawn against him for not examining C.R.P.No.608/2015 11 the said priest. The documents produced by him as rent receipts were not the rent receipts, they are only receipts for having paid the amount for performing pooja. Section 105 of the Transfer of Property Act, 1882 ('T.P.Act' for short) requires issuance of notice to the tenant and not sub-tenant. Under the above said circumstances, the trial Court committed jurisdictional error in holding that there is dispute with regard to ownership of the property and the same cannot be adjudicated by Small Causes Court for ejectment suit. On death of plaintiff No.2 suit does not abate, other co-owners can continue the suit. Therefore the impugned judgment and decree is liable to be set aside.
13. In support of his submission, he relied on the following judgments:
(i) The Mineral Development Ltd. Calcutta v. The Union of India (UOI)1
(ii) Ram Pasricha v. Jagannath2
(iii) Associated Traders and Engineers Limited. v.
J.Nagaraj3 1 AIR 1960 SC 1373 2 AIR 1976 SC 2335 3 ILR 2005 KAR 3383 C.R.P.No.608/2015 12
(iv) Jadiyappa Parappa Jabin v.
4 Shivabasanagouda 5 (v) Parul Das Roy v. Anath Das 6 (vi) Vidhaydhar v. Manikrao
Submissions of Sri P.D.Surana, learned Counsel for the defendants:
14. The temple is covered under Section 2(17) of the Act. Therefore Section 53 of the Act relates to unnotified institutions also. Section 42 of the Act relates to declared institutions, in other cases Section 53 of the Act applies. The plaintiffs did not produce any record in proof of their locus standi to maintain the suit. The plaintiffs do not state about their authorization to file the suit nor they claimed that they are the trustees. No termination notice was issued to defendant No.2. On that count only the suit was liable to be dismissed. After impleading defendant No.2 the plaint was not amended to seek relief against him. Therefore the suit against defendant No.2 was bad. There was collusion between plaintiffs and defendant No.1. In Ex.P6 the Commissioner's name was not shown. Ex.P7 4 2011 (4) KCCR 2898 5 AIR 1991 Cal 1 6 (1999) 3 SCC 573 C.R.P.No.608/2015 13 does not show that defendant No.1 paid rents. Exs.D55 and D56 were secured by defendant No.2 under the Right to Information Act, 2005. They do not disclose that the plaintiffs were the owners of the property. Ex.P5 addressed by defendant No.1 had no correlation to the Committee or the property in dispute. The plaintiffs ought to have examined Archaka of the temple to prove that the plaintiffs' committee exists. The admission of defendant No.1 regarding title of the plaintiffs does not bind defendant No.2. The description of the suit property does not match with Ex.D55 or Ex.P2. In view of Exs.D55 and D56, the admissions of defendants in the written statement regarding identity of the property have to be ignored. Section 14 of the Act covers Religious Institutions including unnotified temples. The judgments cited by learned Counsel for the plaintiffs are not applicable.
15. In support of his submissions, he relied on the following judgments:
(i) Late Siddalingamma & Ors. vs. Siddalingaiah Setty. Rep by LRs. & Ors7
(ii) Smt.Krishnawati v. Shri Hans Raj8 7 RFA No.1067/2002 C/w RFA No.1066/2002 DD 02.11.2009 8 AIR 1974 SC 280 C.R.P.No.608/2015 14
(iii) Shehla Burney v. Syed Ali Mossa Raza9 Reg. Applicability of Act:
16. It was argued that plaintiff No.1 temple is governed by the Act and the same is not registered as required under Section 53 of the Act or declared under Section 42 of the Act, therefore it cannot maintain the suit. To consider whether in the absence of such declaration or registration, the suit can be maintained, it is necessary to have a glance at the provisions of the said Act.
17. The Statement of Objects and Reasons of the Act indicates that since different acts namely the Karnataka Religious and Charitable Institutions Act, 1927, the Madras Hindu Religious and Charitable Endowment Act, 1951, the Bombay Public Trust Act, 1950, the Hyderabad Endowment Act, Regulations 2349F and the Coorg Temple Funds Management Act, 1956 were governing different parts of Karnataka, a need was found to bring about uniform law to provide for the regulation of 9 (2011) 6 SCC 529 C.R.P.No.608/2015 15 all Charitable Endowments and Hindu Religious Institutions in the State of Karnataka.
18. Clause 1 of the Statement of Objects and Reasons indicates that the legislature intended to make the law applicable generally to the Hindu Religious Institutions, Temples, etc. who were managed or being managed on the grants of the State Government or other temples even if they are not under the management of the State Government, if required to be regulated by the State Government by reasons of mismanagement by notifying them as declared institutions.
19. Section 1(4) of the Act reads as follows:
"1. Short title, extent, commencement and applications.-........................................................................
(4) It shall apply to, all religious institutions or charitable endowments notified under section 23.
Section 53 and Chapter VIII shall apply to all religious institutions or charitable endowments other than those notified under section 23:
................................................................................................"
20. No doubt Section 2(17) of the Act says that Religious Institution means a temple or any endowment. But by reading of Section 1 (4) it becomes clear that the C.R.P.No.608/2015 16 Act shall apply only to the institutions notified under Section 23 of the Act. The other exception is that Section 53 and Chapter VIII shall apply to the Religious Institutions or Charitable endowments other than the one notified under Section 23 of the Act.
21. In the light of the above provisions the Court has to see whether plaintiff No.1 is governed by the Act. Section 23 of the Act reads as follows:
"23. Notified Institutions.- The State Government shall as soon as may be after the commencement of this Act publish by notification in respect of each revenue district, a list of;
(a) all Charitable Institutions and Hindu Religious Institutions which on the date of commencement of this Act are in the sole charge of the State Government or for the benefit of which.
(i) any monthly or annual grant in perpetuity is made from public revenues: or
(ii) tasdik allowance under section 19 of Mysore Religious and Charitable Inams Abolition Act, 1955 is paid.
(b) all institutions registered under the Book of Endowments under the Hyderabad Endowment Regulations, 1349 F;C.R.P.No.608/2015 17
(c) all institutions governed by the then Madras Hindu Religious and Charitable Endowments Act, 1951;
(d) all institutions in Kodagu District which are governed by the Coorg Temple Funds Management Act, 1956;
(e) All Hindu Religious Institutions registered under the Bombay Public Trust Act, 1950;
(ee) All Hindu Religious Institutions which are in receipt of any monthly or annual grant from public revenues or any amount under the Karnataka Certain Inams (Abolition) Act, 1977;
(f) Sri Renuka Yellamma Temple, Saundatti, governed under the Renuka Yellamma Devasthana (Administration) Act, 1974;"
22. Reading of the above provision shows that to make the Act applicable the temple should be notified one. It is not even the case of the defendants that the temple is notified by the State Government under Section 23 of the Act.
23. Section 42 of the Act which was relied on by learned Counsel for the defendant No.2 reads as follows:
"42. Declared Institutions.- The State Government may, where it is satisfied on a report of the Commissioner under section 43 or otherwise that any Hindu Religious Institution, whether or not governed by a settled scheme, is being C.R.P.No.608/2015 18 mismanaged, declare such institution to be subject to the regulation of this chapter.
Provided no such declaration shall be made without following the procedure hereinafter specified."
24. Reading of the above provision shows that the State Government can declare under Section 42 of the Act any institution on the report of the Commissioner that the same is being mismanaged. The declaration shall be to the effect that such institution/temple is governed by Chapter VIII.
25. Sections 43 to 48 of Chapter VIII of the Act deal with procedure for declaration after giving right of hearing and for declaration that the Committee of the Management of the Institution is dissolved and vesting administration of such institution, appointment of Executive Officer, term of office and duties of Executive Officer etc.
26. In this case the State Government has not passed any such declaration. Therefore there is no merit in the contention that Section 43 of Chapter VIII of the Act applies to plaintiff No.1.
C.R.P.No.608/201519
27. Section 53(1) of the Act which is relevant for the purpose of this case reads as follows:
"53. Registration of temples.-(1) The Trustee, the manager or any other person in charge of the Management of any temple, endowment other than temples notified under section 23 of the Act shall within ninety days from the date of commencement of the Karnataka Hindu Religious and Charitable Endowments (Amendment) Act, 2011 make an application for its registration to the Assistant Commissioner within whose jurisdiction such temple is situated.
Provided that the Assistant Commissioner may for sufficient reasons to be recorded, extend time for making application."
28. No doubt Section 53(1) of the Act requires the Management of the Temple, within 90 days from the date of commencement of the Act to make an application for registration to the Assistant Commissioner. However that itself does not bar the plaintiffs from filing the suit. If at all if there is any lapse on the part of the plaintiffs in filing such application, it is for the concerned Authorities to take action which it deems fit. Apparently, in this case, no such action is taken.
C.R.P.No.608/201520
29. Moreover, the said Act was struck down by this Court in Sahasra Lingeshwara Temple's case which was questioned before the Hon'ble Supreme Court and there is interim stay. Therefore the trial Court's finding that the suit was not maintainable for non registration of plaintiff No.1's temple under the Act is grossly erroneous and unsustainable.
Reg. jural relationship and identity of the property:
30. There is no dispute that prior to defendant No.2 occupying the property, defendant No.1 was the tenant of the property. Defendant No.1 though claimed that he vacated and delivered possession to the earlier office bearers of the temple, he did not lead any evidence nor he cross-examined PW.1 to prove the same. He did not even reveal the names or other particulars of the persons to whom possession was allegedly delivered. Defendant No.2 also did not choose to examine defendant No.1. On such failure of defendant No.1 or defendant No.2, adverse inference has to be drawn for suppressing such material evidence.
C.R.P.No.608/201521
31. The Hon'ble Supreme Court in para 17 of the judgment in Vidhaydhar's case referred to supra held that for suppression of any material fact or not leading evidence with regard to the same an adverse inference has to be drawn against such parties.
32. During the arguments at a later stage of the case an attempt was made to deny the identity of the property or the rights of the plaintiffs over the suit property. Defendant No.2 in paras 3, 4 and 5 of the written statement clearly admitted that plaintiff No.1 is trust and claimed that all trustees are not made parties. In para 10 of the written statement it was contended that after defendant No.1 vacating the suit property, the property was let out to defendant No.2. It was further pleaded that plaintiff No.1 has accepted defendant No.2 as tenant. In para 11 of the written statement defendant No.2 says that he is the tenant of the property. Having made such clear admissions in the written statement, only at later stage, by way of amendment a dispute was attempted to be raised regarding identity and ownership of the property. C.R.P.No.608/2015 22
33. Defendant No.2 himself in para 14 of the cross-examination of PW.1 suggests that defendant No.2 is in occupation of suit property as tenant on permission of the plaintiff Committee. He further suggests that defendant No.2 was remitting rent by cheque to the bank account of the plaintiff Committee. He claimed that suit is bad for not issuing termination notice to him. In page 15 of the cross-examination of PW.1, defendant No.2 suggests that on defendant No.1 vacating the suit property, the plaintiffs let out that to defendant No.2 and defendant No.2 is paying the rents.
34. Such being the admissions in the pleadings and cross-examination of PW.1, for the first time in his affidavit dated 20.07.2013 by way of examination-in-chief after eight years of filing of the suit, defendant No.2 denies the ownership of the property and locus-standi of the plaintiff to file the suit. In para 6 of his affidavit, DW.1/defendant No.2 claims that he became the tenant of the temple represented by one Ramamurthy Bhat the priest of the temple. He claims that he was inducted by Ramamurthy Bhat the priest and the said Ramamurthy C.R.P.No.608/2015 23 Bhat was maintaining the affairs of the temple. Therefore burden was on him to prove that he was inducted by said Ramamurthy Bhat. But he did not chose to examine the said priest, despite he taking steps to summon the said priest. Exs.D1 to D53 which he relied as rent receipts are the receipts for having paid the charges for performance of pooja and they are not the rent receipts.
35. DW.1 in his cross-examination in page 5 states that since 10 years he is tenant in the suit property, but he claims that he has not paid the rent to the plaintiff. Again he says that he has not taken the property on rent from the priest, but he was an Assistant to him. In his cross- examination DW.1 admits that regarding payment of rent to his landlords, balance sheet is maintained in his office. He further admits that in that balance sheet, the landlords name is mentioned. But he does not choose to produce those balance sheets. He states that he does not know if the revenue records of the suit property stand in the name of the plaintiffs.
36. It is settled law that the admissions in the pleadings carry greater significance and relevance. Once C.R.P.No.608/2015 24 the jural relationship is admitted by the defendant/tenant, Section 116 of the Evidence Act estopps him from denying the title of the landlord. The said Section reads as follows:
"116. Estoppel of tenant; and of licensee of person in possession.--No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given."
37. This Court in para-6 of the judgment in Associated Traders and Engineers Ltd.'s case referred to supra held that defendants cannot retract from their admissions. That goes to show that the admissions made in the pleadings cannot be retracted at a later stage.
38. The Hon'ble Supreme Court in para 5 of the judgment in The Mineral Development Ltd.'s case referred to supra while referring to Section 105 of the TP Act held that, once the relationship of lessor and lessee is admitted, how the lessor got the title to make the lease is immaterial C.R.P.No.608/2015 25 so long as the transaction is of the nature defined in Section 105 of the TP Act. Para 5 of the said judgment reads as follows:
"5. There is no specific mention of a sub- lease in it. But if one takes the plain meaning of the words used in s.3(d), it is clear that the term 'mining lease' means any kind of lease granted for the purpose of searching for, winning, working, getting, making merchantable, carrying away or disposing of minerals or for purposes connected therewith. It is significant that the definition does not require that the lessor must be the proprietor; and so on a fair reading it would include a lease executed by the proprietor as much as a lease executed by the lessee from such a proprietor. If we turn to the definition of 'lease' in s. 105 of the Transfer of Property Act, we find that a lease of immovable property is a transfer of a right to enjoy such property made for a certain time, express or implied or in perpetuity in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value to be rendered periodically or on specified occasions to the transferor by the transferee who accepts the transfer on such terms. What a lease therefore requires is a transferor and a transferee and a transfer of immovable property on the terms and conditions mentioned in s. 105. How the transferor gets his title to make a lease is immaterial so long as the transaction is of the nature defined in s. 105. Applying therefore the plain words of s. 3(d) of the Act and the definition of lease as contained in s. 105 C.R.P.No.608/2015 26 of the Transfer of Property Act, it is perfectly clear that there is a transferor in this case, (namely, the appellant) and a transferee (namely, Bhagat Singh) who has accepted the transfer; the transaction is with respect to immovable property and creates a right to enjoy such property for a certain term and for consideration on the conditions mentioned in it. Though, therefore, the document may be termed a sub-lease in view of the fact that the transferor is not the owner of the property transferred but is itself a lessee, the transaction between the appellant and Bhagat Singh is nothing but a mining lease. The terms ' sub-lease', 'under-lease' and 'derivative lease' are used conveniently to indicate not only that the transfer is a lease but also that the transferor is not the owner of the property but is a lessee; but the transfer as between a lessee and a sub-lessee is nonetheless a lease provided it satisfies the definition of s. 105. We may add that Ch. V of the Transfer of Property Act, which deals with leases of immovable property has nowhere made any distinction between a lease and a sub-lease and all the provisions of that Chapter which apply to a lease also apply to a sublease. It is only when dealing with the rights and liabilities of the lessee that s. 108(j) of the Transfer of Property Act lays down that the lessee may transfer absolutely or by way of mortgage or sub- lease the whole or any part of his interest in the property, and that is whereon finds mention of a sub-lease, namely, that it is a lease by a person who is himself C.R.P.No.608/2015 27 a lessee. But the fact that the lessor is himself a lessee and the transaction between him and the person in whose favour he makes the transfer by way of lease is called a sub-lease does not in any way change the nature of the transfer as between them. Therefore on the plain words of s. 3(d) read with s. 105 of the Transfer of Property Act there can be no doubt that the term 'mining lease' includes a sub-lease."
(Emphasis supplied)
39. The Hon'ble Supreme Court in para 11 of the judgment in Ram Pasricha's case referred to supra while holding that the tenant cannot deny that the landlord had the title to the premises at the commencement of the tenancy held as follows:
"11. There are two reasons for our not being able to accept the above submission. Firstly, the plea pertains to the domain of the frame of the suit as if the suit is bad for non-joinder of other plaintiffs. Such a plea should have been raised, for what it is worth, at the earliest opportunity. It was not done. Secondly, the relation between the parties being that of landlord and tenant, only the landlord could terminate the tenancy and institute the suit for eviction. The tenant in such a suit is estopped from questioning the title of the landlord under section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the C.R.P.No.608/2015 28 commencement of the tenancy. Under the general law, in a suit between landlord and tenant the question of title to the leased property is irrelevant. It is, therefore, inconceivable to throw out the suit on account of non-pleading of other co-owners as such."
(Emphasis supplied)
40. In the light of the clear admissions of defendant No.2 referred to supra, judgments of the Hon'ble Supreme Court, Section 116 of the Evidence Act, and Section 105 of the TP Act, there is no merit in the contention of the defendants that the plaintiff No.1 is not the owner of the property or the suit property was not identifiable or the identity of the suit property was not proved.
41. Perusal of the judgment of this Court in Late Siddalingamma's case referred to supra shows that in the said case the plaintiff in the plaint itself had pleaded that the defendants are denying the plaintiff's title and setting up their own title. Therefore it was held that the plaintiff has to seek declaration of the title and the suit for ejectment simplicitor is not maintainable. The said judgment is not applicable to the facts of the present case. C.R.P.No.608/2015 29
42. The other contention was that on the death of plaintiff No.2 pending these proceedings, his legal representatives were not brought on record, therefore suit not maintainable. First of all owner of the property is plaintiff No.1. Plaintiffs 2 to 5 are only the office bearers of the first plaintiff. On death of plaintiff No.2 cause of action survives to the surviving plaintiffs.
43. The Hon'ble Supreme Court in Para 6 of the judgment in India Umbrella Manufacturing Co. & Others v. Bhagabandei Agarwalla10 while holding that one of the co- owners can maintain the suit for ejectment against the tenant held as follows:
"6. Having heard the learned counsel for the parties we are satisfied that the appeals are liable to be dismissed. It is well settled that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners. This principle is based on the doctrine of agency. One co-owner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other co-owners. The consent of other co-owners is assumed as taken unless it is shown that the other co-owners were 10 (2004) 3 SCC 178 C.R.P.No.608/2015 30 not agreeable to eject the tenant and the suit was filed in spite of their disagreement. ....."
(Emphasis supplied) Therefore, such contention deserves no merit.
44. The above facts and circumstances go to show that defendant No.2 though had no defence, just to prolong the proceedings went on changing his stance from pleadings to evidence and evidence to arguments. Such contentions were wholly vexatious. The trial Court ignored all such material admissions and the legal position on the point in holding that there was title dispute, therefore the Small Causes Court cannot adjudicate the matter. The said finding is liable to be set aside.
Reg. Statutory notice under Section 106 of the TP Act:
45. Defendant No.2 contended that the suit should be preceded by the statutory termination notice to him as required under Section 106 of the TP Act, therefore the suit against him was not maintainable. His other contention was that after impleading him in the suit, the plaintiffs did not amend the prayer column, therefore the suit was defective.
C.R.P.No.608/201531
46. It is already held that the plaintiffs claim that defendant No.2 is the sub-tenant is proved. Then the question is whether Section 106 of the TP Act contemplates compulsory service of notice on the sub-tenant. In this regard this Court in para 13 of the judgment in Jadiyappa Parappa Jabin's case referred to supra held that a sub- tenant claiming under tenant is not entitled to notice. Para 13 of the said judgment reads as follows:
"13. Further, the lower Appellate Court having held that the Plaintiff was obliged to issue a notice of termination to the alleged sub-tenant, Defendant No.2 and in the absence of the same, the proceedings were vitiated etc., is also incorrect - in the light of the admitted circumstance that any induction of new partners into the firm and the constitution of a different firm in a different firm name, which was admittedly in occupation of the suit property- was without the consent of the Plaintiff. A sub-tenant claiming under a tenant is not entitled to notice. The termination of the tenancy would, as a matter of course, affect the sub-lease as well. The finding of the lower Appellate Court in this regard, is hence, not in order. In any event, the lower Appellate Court has found that there was no sub- letting, and therefore the question is irrelevant, if adjustment can be sustained inspite of it."
(Emphasis supplied) C.R.P.No.608/2015 32
47. In the light of the aforesaid judgment, there is no merit in the contention that the suit was bad for non service of termination notice on him under Section 106 of the TP Act. In the light of the aforesaid judgment, the judgment in Shehla Burney's case referred to supra relied on by defendant No.2's Counsel is not applicable.
48. Exs.P1 to P11 which commenced from the year 1974 and continued till filing of the suit show that plaintiff No.1 is the owner of the property and its affairs were governed by the Committee. So far no body has taken any action against plaintiff Nos.2 to 4 on the ground that they are mismanaging the affairs of the committee or on the ground that they are not the validly appointed officer bearers of the committee. Therefore there is no merit in the contention that they had no locus-standi to file the suit, more particularly when defendant No.2 himself in the written statement in the first instance admitted that he was the tenant under the plaintiffs. On that count also the trial Court was not justified in holding that the suit before Small Causes Court was not maintainable and the question C.R.P.No.608/2015 33 of title is involved. Sofar as the damages from the date of termination notice, there was no evidence to show that at that relevant time the market rate of the rent was Rs.8,000/- per month. Therefore for the said period the plaintiffs are entitled only the agreed rent of Rs.225/- per month.
49. The facts and circumstances of the case go to show that defendant No.2 has dragged the matter for 17 years without even depositing any rent, much less the rent agreed by him. Therefore the petition deserves to be allowed with heavy compensatory costs. Hence the following:
ORDER The petition is allowed on payment of costs of Rs.1,00,000/-.
The impugned judgment and decree is hereby set aside. The suit in S.C.No.1355/2012 on the file of XXIII Additional Small Causes Judge, Bangalore is hereby partly decreed.C.R.P.No.608/2015 34
The defendants are hereby directed to quit and deliver the vacant possession of the suit schedule premises to the plaintiffs within 60 days from the date of this order.
Defendant No.2 is further directed to pay rent at the rate of Rs.225/- per month from November 2002 to till the date of filing of the suit.
There shall be an enquiry into future mesne profits from the date of the suit till the defendants handing over the vacant possession of the property.
Sd/-
JUDGE KSR