Bangalore District Court
Smt.S.N.Swathi vs ) Sri.J.Somasunder on 7 December, 2020
IN THE COURT OF THE XXI & XI ADDL. SMALL
CAUSES AND ADDL. MACT., BANGALORE, (SCCH-23)
Present: Smt.Ashwini M.Hattiholi
B.Com., LL.B.,
XXI Addl. Small Causes Judge & ACMM,
Court of Small Causes,
Bengaluru.
DATED THIS THE 7th DAY OF DECEMBER 2020
S.C No.1678/2018
PLAINTIFF/S: Smt.S.N.Swathi,
W/o Sri.H.S.Shankarnag,
Aged about 32 years,
R/at No.1162, 13th main,
8th cross, BTM 1st stage,
Bengaluru - 560029.
(By Sri. C.Gangadhar, Adv.,)
Vs.
DEFENDANT/S: 1) Sri.J.Somasunder,
S/o M.Jayaramaiah,
Aged about 55 years,
Shop No.15/18, Ground floor,
32nd cross, II main,
Jayanagar 7th block,
Bengaluru560082.
(By Sri. C.G.Gopalaswamy Adv.,)
2 SC No.1678/2018
SCCH-23
Date of Institution of the suit : 28.11.2018
Nature of the suit (suit on pronote, : Ejectment
Suit for declaration and possession
Suit for junction, etc.):
Date of commencement of : 15.3.2019
recording of the evidence
Date on which the Judgment : 7.12.2020
was pronounced
Total Duration Years Month/s Days
02 00 09
XXI ADDL. SCJ & ACMM
MemberMACT,Bengaluru
JUDGMENT
This suit is filed for Ejectment and damages.
2. The brief facts of the plaintiff's case are as follows: The plaintiff is the absolute owner in possession of the suit schedule property by virtue of registered Gift deed dated 9.3.2017 executed by her mother in her favour. Thereafter the Khatha has been transferred in her name 3 SC No.1678/2018 SCCH-23 and she has paid the taxes upto date. Prior to the execution of the Gift deed, the defendant was a tenant under the Plaintiff's mother. Now the defendant has been continuing as a tenant under the Plaintiff. The rent has been increased from time to time and the present rent is Rs.4,840/ p.m. The defendant had taken the premises for running an Electrical shop under the name & style M/s.Electro Service. But the defendant has not displayed any board as mentioned in the agreement. Further he is always late in making the payment of rent in respect of the shop premises. The Plaintiff intends to start a business in the suit premises which is at present under the occupancy of the defendant. The said fact was brought to the knowledge of the defendant and she requested him to vacate the premises on several occasions. Though initially the defendant agreed, but he went on postponing the same on one of another pretext. Finally the plaintiff issued a legal notice dated 10.9.2018 to the defendant by 4 SC No.1678/2018 SCCH-23 terminating his tenancy in respect of the Schedule premises. The defendant has received the notice and acknowledged the same. In spite of termination of the tenancy the defendant has failed to hand over the vacant possession of the schedule premises. Hence the occupation of the defendant in respect of the schedule premises is an illegal one. Therefore the defendant is liable to pay damages @ Rs.10,000/ p.m till he vacates and hands over the vacant possession of the suit schedule premises.
3. After service of suit summons, the defendant appeared through his counsel and resisted the suit contending that there is no jural relationship of landlord and tenant between the plaintiff and himself. The ownership of the plaintiff over the suit schedule premises is also denied. Further he specifically claimed that he is not a tenant of the premises described in the schedule to the plaint. He is only in occupation of the premises bearing No.15/18, Ground floor, 32nd cross, 2nd main, 7th block, 5 SC No.1678/2018 SCCH-23 Jayanagar, Bengaluru560082, measuring 7 X 8 ft bounded on East by: 2nd main road; West by: staircase in the property bearing No.15; North by: Sri.Mustaka's property & South by: a tenement RK Studio (earlier Bakery) in the property bearing No.15. That the defendant was a tenant under Sri.S.Sriramshetty, later to Sri.S.Narayanshetty and then to Smt.S.N.Lakshmi. Stating that her mother Smt.S.N.Lakshmi is suffering from age old ailments and thereby unable to collect rents from him and contending that she is her mother's Attorney, the plaintiff pressurized the defendant to issue rent to her. Therefore from the past 68 months the defendant has been paying rents in the name of plaintiff through cheques. In fact he has never been a defaulter at any point of time and has been paying the rents regularly. Only with an intention to extract higher rents, to which the defendant did not consent, plaintiff has approached this Court with malafide suit. The defendant has not received any intimation as to 6 SC No.1678/2018 SCCH-23 the alleged business intended to be started by the plaintiff in the schedule premises. Further he has also not received any letter/notice from the plaintiff as to the change of ownership and Attornment of tenancy in respect of the Schedule premises. There has not been any valid termination of tenancy. Hence the suit is not maintainable. Moreover the plaintiff is accepting rents even after 30.9.2018. As such she has waived her rights of the alleged termination and is prevented by the Doctrine of Estoppel. The schedule premises is not required for the self occupation of the plaintiff as alleged. On these grounds prayed for dismissal of the suit on the exemplary costs.
4. Plaintiff examined herself as PW.1 and got marked Ex.P1 to 10. On the other hand the defendant was examined as DW.1. Ex.D1 was marked on his behalf.
5. Heard Arguments addressed on both sides. 7 SC No.1678/2018
SCCH-23
6. On the basis of the aforesaid pleadings, the following points are raised for consideration :
1. Whether the plaintiff proves the existence of jural relationship between herself and the defendant?
2. Whether the plaintiff further proves that the tenancy is legally terminated?
3. What order or decree?
7. My findings on the above points are as under:
Point No.1 : In the Affirmative
Point No.2 : In the Affirmative
Point No.3 : As per final order for the
following:
REASONS
8. Points No.1 & 2: As these points are
interrelated each other and require common discussion they are taken up together for consideration.
9. It is an undisputed fact that entire commercial property bearing Site No.15, situated at 32 nd cross, 2nd 8 SC No.1678/2018 SCCH-23 main road, Jayanagar, Bengaluru560032 (present BBMP New No.18/2A, Now called 32nd cross road, 7th block, Jayanagar, Bengaluru, New BBMP Ward No.59, with property I.D No.599218/2A), situated within the limits of Bruhat Bengaluru Mahanagar Palike, Bengaluru, was originally held by Smt.S.N.Lakshmi. It is also not in dispute that the suit premises bearing Shop No.15/18, Ground floor, 32nd cross, 2nd main, 7th block, Jayanagar, Bengaluru560082, (present BBMP New No.18/2A, Now called 32nd cross road, 7th block, Jayanagar, Bengaluru, New BBMP Ward No.59, with property I.D No.599218/2 A) consisting of a portion of ground floor shops and bounded on East by: 2nd main road; West by:
B.R.Krishnamurthy's property; North by: Annappa Reddy's property and South by 32nd cross, totally measuring 60 sq.ft (approximately), is one of the Shops situated in the aforesaid building and the defendant was inducted as a tenant in it by Smt.S.N.Lakshmi.9 SC No.1678/2018
SCCH-23
10. It is the specific contention of the defendant that Plaintiff alleging herself to be the attorney of her mother, pressurised him to issue rents to her. Therefore from the past 68 months he has been paying rents in the name of Plaintiff through cheques. The jural relationship of landlord & tenant between plaintiff & himself, Attornment of tenancy in respect of schedule premises and the valid termination of tenancy is vehemently denied by the defendant.
11. The contents of Ex.P1 go to show that out of love & affection, the plaintiff's mother viz., Smt.S.N.Lakshmi gifted the property mentioned in the schedule of Ex.P1 to the plaintiff. Ex's.P2 to 6 i.e., Encumbrance certificate, Khatha certificate, Khatha extract, Tax paid receipt and Uttara Patra reveal that after the execution of Ex.P1Gift deed, the title documents pertaining to the said property were recorded in the name of plaintiff and thereafter she is paying taxes in respect of it to the concerned authority. 10 SC No.1678/2018
SCCH-23 Thus Ex'sP.1 to 6 fortify the acquisition and ownership of the plaintiff over the suit schedule property.
12. In the course of his cross examination it was elicited from DW.1's mouth that " ನನನನ ಬನಡಗಗಯನನನ ವನದಗಗ ಕಗಕಡನತತದಗದದನಗ ಎಎದರಗ ನಜ. ಯನವ ಆಧನರದ ಮದಲಗ ವನದಗಗ ಬನಡಗಗ ಕಗಕಡನತತದದದರನ ಎನನನವ ಪಪಶಗನಗಗ ಸನಕಕಯನ ವನದಯ ತನಯ ಆಕಗಗಗ ಬರಲನ ಆಗನವವದಲಲ ಎಎದನ ಹಗದಳದದರಎದ ನನನನ ವನದಗಗ ಬನಡಗಗ ಕಗಕಡನತತದಗದದನಗ ಎನನನತನತರಗ . ನ.ಪ.7, ನನನನ ವನದಗಗ ಬನಡಗಗ ಕಟನಟತತರನವ ಬಗಗಗ ಬನಬಎಕಕಸಗಟದಟಗಟಎಟಕಆಗದಗ ಎಎದರಗ ನಜ." Be for whatever reason it may be, it is an admitted fact that after the execution of Gift deed, defendant was initially paying rent to the plaintiff through cheques and then he started directly crediting it to her account. This indicates that the defendant was very much aware of the passing of title of the suit property to the plaintiff from her mother and so he accepted the plaintiff to be his Landlord. Once it is said that through Ex.P1, plaintiff acquired the whole property mentioned in the schedule therein, of which the suit property is a portion thereof, now the next question would 11 SC No.1678/2018 SCCH-23 be whether Attornment of tenancy was a precondition to create jural relationship of Landlord & tenant between the Plaintiff and Defendant. It is true that there is no such exchange of written notice between the parties attorning the tenancy. But the point that merits consideration is that 'Whether such Attornment is necessary, that too in explicit terms to constitute a jural relationship' ? In this regard reliance is placed upon a decision reported in 2004 (4) KCCR 2855 between Silva Uddin @ Salahuddin V/s Nagaraju, wherein at Headnote B, our Hon'ble High Court held that in our Country there is no necessity to attorn the tenancy. In the said decision it is also held that u/s 109 of T.P Act, when an immovable property is transferred from one person to another, Attornment takes place automatically as it is a fiction created by the statute.
13. Sec.109 of T.P Act, creates a statutory Attornment which substitutes and has the same effect as 12 SC No.1678/2018 SCCH-23 contractual attornment, so that because of a transfer of a leased property or part thereof, the transferee ipso facto acquires all the rights of the lessor and a new relationship is created between the transferee and the lessee. Letter of Attornment is not necessary to complete title to the assignee of the reversion u/s 109. Title of the assignee is complete on the execution of the deed of assignment and it is not postponed till the notice of the assignment. Accordingly as per the Sec.109 of T.P Act, the Law does not contemplate a written notice for attornment of tenancy.
14. Further the defendant's contention that plaintiff is only a rent collector and not the landlord of the suit premises, cannot be accepted for the simple reason that as per Sec.105 of the T.P Act, which defines the terms 'Lessor' & 'Lessee'; to constitute a valid lease, payment of premium or rent from the Lessee to the Lessor for enjoyment of a property is enough. In support of this proposition of law it 13 SC No.1678/2018 SCCH-23 is essential to note the decision reported in ILR 2013 KAR 3255 (M/s.Kothari Inter Group Ltd V/s M/s.Vinayaka Enterprises).
15. In the case on hand as per the own say of the defendant he has paid rent to the plaintiff for enjoying the suit premises. Hence this would be enough to demonstrate the acceptance of jural relationship between the plaintiff & the defendant. At the cost of repetition, it is noteworthy to state that as per Sec.105 of the T.P Act, it is not requisite that the Lessor must be the absolute owner of the suit schedule property. During the cross examination of the plaintiff several questions were put to her questioning her title to the suit premises and nonexistence of the lease deed between her and the defendant etc. All the admissions extracted in that aspect serve no useful purpose, in view of the undisputed fact that the defendant accepted the plaintiff as his landlord from 9.3.2017 and not 14 SC No.1678/2018 SCCH-23 only paid her rent over a considerable period of time but also continued paying the same during the pendency of the suit. Since the tenant /defendant paid rent to the plaintiff, the plaintiff will be a termed as a landlord u/s 109 of T.P Act. Such being the case, just in order to contest the suit and prolong the matter as much as possible, it appears that the defendant took up certain defences without any substance in them.
16. The Attornment of Tenancy in favour of the plaintiff was not a requirement for conferring validity to the Transfer of title in favour of the plaintiff. A notice issued u/s 106 of T.P Act, 1882, in terms of the earlier lease by the landlord would be proper. Ex.P8 is the office copy of legal notice dated 10.9.2018 issued by the Plaintiff to the defendant stating that his tenancy has been terminated and thereby calling upon him to vacate and deliver the vacant possession of the suit property to her, immediately within 15 days from the receipt of the notice. Ex.P9 is the 15 SC No.1678/2018 SCCH-23 postal receipt and Ex.P10 is the postal acknowledgment duly signed by the defendant. The receipt of Ex.P10notice is also admitted by the defendant in the course of his cross examination. Accordingly plaintiff has validly terminated the tenancy.
17. According to me even causing of notice u/s 106 of T.P Act is not required in the given facts of the case because no lease deed is subsisting between the plaintiff and the defendant. Further the lease deed that was executed by Plaintiff's mother in favour of defendant on 19.7.2002 (which was in existence for 11 months only), having been expired long back, as contemplated u/s 108 (B) (q) of T.P Act, which deals with the liability of the Lessee, on determination of lease, the Lessee is bound to put the lessor into possession of said property. The defendant having omitted the performance of his legal obligation cannot contend that there is no valid termination of tenancy. In this regard reliance is placed on the Division 16 SC No.1678/2018 SCCH-23 Bench Judgment of our Hon'ble High Court reported at ILR 2006 Kar 4584 (M.C Mohammad V/s Gowramma & others). In the said case referring to Sec.106 & 111 of T.P Act, it was held that a tenant who continues as a Statutory tenant after the expiry of a contractual period, does not require another notice of termination of his tenancy. It was further held that on expiry of lease period by efflux of time, no further termination arises as no subsisting contract remains after the lease period is over.
18. Yet the plaintiff issued 15 days notice to the defendant which is evident from Ex.P8 (paragraph 4), wherein it is mentioned that the statutory notice is for 15 days from receipt of notice which expires with the end of tenancy month on 30.9.2018 and thereby the defendant was called upon to vacate and hand over the vacant possession of the suit premises.
19. Suggestions were made to PW.1 to the effect that the suit premises is not required for her use & occupation 17 SC No.1678/2018 SCCH-23 and that apart from the said property she owns other properties in the same area. These suggestions are of no help to the defendant because Sec.106 of T.P Act, does not contemplate giving any reason for terminating the tenancy.
20. In a suit for Eviction between a landlord & tenant, unless there is a contract to the contrary, all that is required to be proved by the landlord is that there exists the relationship of a landlord and tenant. Further that the tenancy has been validly terminated under the provisions of 'Transfer of Property Act'. On the basis of oral and documentary evidence placed on record, PW.1 has proved the landlord & tenant relationship and valid termination of tenancy by her. It is a settled law that a tenant on expiry of lease cannot be said to continue in the lawful possession of the schedule premises against the wishes of the landlord. Thus the plaintiff is entitled to the relief of Ejectment. In view of the valid termination of tenancy, the occupation of the defendant over the suit premises since 1.10.2018 is 18 SC No.1678/2018 SCCH-23 unauthorized one. As such the defendant is liable to pay the damages for the unauthorized use and occupation of the suit premises from the date of suit till the date of handing over possession of the suit premises. But the same cannot be determined in this suit and for ascertaining the damages a separate enquiry is necessary. Considering the facts & circumstances and in the light of the observations made above, there is a justifiable reason in the claim put forth by the plaintiff for the grant of the reliefs sought. Accordingly points No.1 & 2 are answered in the affirmative.
21. Point No.3: In view of the findings given to the above points, this Court proceeds to pass the following:
ORDER The suit of plaintiff is decreed with costs. The defendant is directed to quit and hand over the vacant possession of the suit schedule 19 SC No.1678/2018 SCCH-23 property in favour of the plaintiff within one month from the date of decree.
The plaintiff is entitled to claim damages to be determined by way of separate enquiry as contemplated under Order 20 Rule 12 of C.P.C.
Draw decree accordingly.
(Dictated to the stenographer, transcript thereof is corrected and then pronounced by me in the Open Court on this the 7th day of December 2020) (ASHWINI M. HATTIHOLI) XXI ADDL. SMALL CAUSES JUDGE BENGALURU ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PLAINTIFF/S:
PW1: Smt.S.N.Swathi LIST OF DOCUMENTS MARKED ON BEHALF OF THE PLAINTIFF/S:
Ex.P1: Gift deed
Ex.P2: Encumbrance certificate
Ex.P3: Khatha certificate
20 SC No.1678/2018
SCCH-23
Ex.P4: Khatha extract
Ex.P5: Tax paid receipt
Ex.P6: Uttara Pathra issued by BBMP
Ex.P7: Bank Statement pertaining to payment of rent to
the plaintiff upto February 2019
Ex.P8: Office copy of legal notice
Ex.P9: Postal receipt
Ex.P10: Postal acknowledgment
LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENDANT/S:
DW1: Sri.J.Somasunder LIST OF DOCUMENTS MARKED ON BEHALF OF THE DEFENDANT/S:
Ex.D1: Bank account extract
(ASHWINI M. HATTIHOLI)
XXI ADDL. SMALL CAUSES JUDGE
BENGALURU
SCHEDULE PROPERTY
All that piece and parcel of the portion of the commercial property bearing No.Shop No.15/18, Ground 21 SC No.1678/2018 SCCH-23 floor, 32nd cross, II main, Jayanagar 7th block, Bengaluru560082, Present BBMP New No.18/2A, now called 32nd cross road, 7th block, Jayanagar, Bengaluru, with PID No.599218/2A, New BBMP Ward 59, consisting a portion of Ground floor shop & bounded as follows:
East by : 2nd main road
West by : B.R.Krishnamurthy's Property
North by : Annappa Reddy's property
South by : 32nd cross.
(ASHWINI M. HATTIHOLI)
XXI ADDL. SMALL CAUSES JUDGE
BENGALURU