Karnataka High Court
R.Ramprasad vs M.R.Nagendra on 16 November, 2021
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
REGULAR FIRST APPEAL No.60 OF 2017 (SP)
BETWEEN:
R.Ramprasad,
S/o Rajaram Gupta,
Aged about 68 years,
No.34, Fort 'A' Street, K.R.Road,
Opposite Vanivilas Hospital,
Bengaluru - 560 002. ...Appellant
(By Sri Sridhar.G., &
Smt.Ashvini Patil, Advocates)
AND:
1. M.R.Nagendra,
S/o M.R.Rajanna,
Aged about 50 years,
No.22, Fort 'A' Street, K.R.Road,
Bengaluru - 560 002.
2. M.R.Rama,
D/o M.R.Rajanna,
Aged Major,
No.22, Fort 'A' Street, K.R.Road,
Bengaluru - 560 002.
3. M.R.Sudhindra,
S/o M.R.Rajanna,
Aged Major,
No.22, Fort 'A' Street, K.R.Road,
Bengaluru - 560 002.
RFA No.60/2017
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Since dead, represented by } amended as per
his legal representative, } order dated 28.02.2020
Respondent No.1.
.. Respondents
(By Sri N.Jagadish Baliga, Advocate for R1;
Sri U.Panduranga Nayak, Advocate for R2;
Sri C.A.Ajith, Advocate for R3)
This Regular First Appeal filed under Section 96 of CPC
against the judgment and decree dated 11.11.2016 passed in
O.S.No.6916/2007 on the file of the LIX Additional City Civil and
Sessions Judge and C/C of Additional City Civil and Sessions
Judge, Bengaluru City, dismissing the suit for specific
performance.
This Regular First Appeal coming on for Hearing, through
Physical Hearing/Video Conferencing Hearing, this day, the
Court delivered the following:
JUDGMENT
This is a plaintiff's appeal. The present appellant as a plaintiff has filed the original suit against the present respondents arraigning them as defendants No.2, 3 and 4 respectively in O.S.No.6916 of 2007 in the Court of the LIX Additional City Civil and Sessions Judge and C/c of X Additional City Civil and Sessions Judge, Bengaluru City - CCH No.26 (hereinafter for brevity referred to as the `Trial Court'), for the relief of specific performance of an agreement. RFA No.60/2017 3
One Smt.Padmavathi was the defendant No.1 in the said suit. However, during the pendency of the said suit, she was reported to be dead and defendants No.2 to 4 were shown to be her legal representatives. As such, the suit in the Trial Court has continued as against defendants No.2, 3 and 4 only who are respondents No.1, 2 and 3 herein.
2. The summary of the case of the plaintiff in the Trial Court was that the property bearing No.22, "Sneha Sadana", 4th 'A' Street, K.R.Road, Benglauru City, which is the suit schedule property belong to the defendants along with late Smt.M.R.Banumathi and late M.R.Ramprasad. The said late Smt.M.R.Banumathi and late M.R.Ramprasad remained unmarried at their death and the defendants claimed to be their legal representatives. In the year 1976, the defendants, late Smt.M.R.Banumathi and late M.R.Ramprasad wished to lease out the suit schedule property for a period of thirty years and also to sell the suit schedule property. Accordingly, they approached the plaintiff. The parties entered into an agreement in that regard on 10.06.1976. However, due to certain legal requirements, which were yet to be met with, the registered document could not be executed between them. One of the RFA No.60/2017 4 terms of the agreement under Clause No.9 was to sell the schedule property along with the construction thereon, on expiry of the lease for a consideration of `25,000/- to the lessee himself. On 21.03.1977, a registered lease deed was executed in favour of the plaintiff by the defendants and late Smt.M.R.Banumathi and late M.R.Ramprasad with respect to the suit schedule property. Accordingly, the plaintiff was put in possession of the suit schedule property as a lessee and also in part performance of the agreement to lease cum sale dated 10.06.1976. The plaintiff has remained in possession of the suit schedule property ever since.
It is further in the plaint averments that in view of the fact that the suit property was with it a dilapidated house, the same was required to be demolished and new construction has to be put up. The plaintiff demolished the-then existing construction and put up an RCC building as agreed to between the parties and as agreed under the agreement. The lease came to an end on 20.03.2007. Though the plaintiff was under an impression that the defendants would sell the schedule property to him in fulfillment of their obligation and as per Clause No.9 of the agreement, however, he was shocked to receive a legal notice RFA No.60/2017 5 dated 26.03.2007 issued to him on behalf of the defendants, claiming that the lease had come to an end on 20.03.2007 and he was squatting on the schedule property as a trespasser. As such, he was required to vacate and hand over physical possession of the schedule property to the defendants. The plaintiff sent a reply to the notice bringing to the notice of the defendants that he was under no obligation to vacate and hand over the physical possession of the suit schedule property. On the other hand, the defendants had to execute a registered Sale Deed in his favour, to get the said Sale Deed executed in his favour, he was always ready and willing to perform his part of the promise. Since the defendants failed to execute any registered Sale Deed in his favour, he was constrained to initiate a suit for the specific performance.
Subsequent to filing of the original suit, the plaintiff got amended his plaint by incorporating two paragraphs as paragraph No.9(a) and a(b). The summary of which was that the second defendant in the suit had filed a suit for ejectment against the plaintiff, which was numbered as O.S.No.6916 of 2007. One S.M.Rama, the defendant No.3 who is the sister of defendants No.2 and 4 had acquired 1/3rd share in the suit RFA No.60/2017 6 schedule property by virtue of inheritance and she was also one of the signatories to the agreement dated 10.06.1976. The said Rama had sold her share in the property to the plaintiff for enhanced consideration of `25,000/- under a registered sale deed dated 30.10.2010. As such, the plaintiff has become one of the co-owners of the suit schedule property. With this, the plaintiff has prayed for a direction to the defendants to execute a sale deed in his favour with respect to the suit schedule property.
3. In response to the suit summons served upon them, the defendants appeared through their counsel and filed their written statement. In their written statement, the defendants denied the very existence of the alleged lease agreement dated 10.06.1976 and their alleged liability to execute the sale deed in favour of the plaintiff after receiving a consideration of a sum of `25,000/-. However, they admitted the execution of a lease deed dated 21.03.1977 in favour of the plaintiff and all the terms and conditions of the said lease deed dated 21.03.1977. According to the defendants, the plaintiff who was permitted to put up a construction on the suit schedule property in the form of a building was required to hand over the possession of the RFA No.60/2017 7 entire property to the defendants after the lease period of thirty years. Despite the same, the plaintiff did not hand over the possession of the suit schedule property in its entirety to the plaintiff. Therefore, the suit came to be filed against the plaintiff in O.S.No.5586 of 2007 for the possession of the ground floor, which was in his possession. As a counter blast of the same, the plaintiff had filed the present suit.
4. Based on the pleadings of the parties, the Trial Court framed the following issues:
1. Whether the plaintiff proves that the defendants entered into a lease agreement in respect of the schedule property on 10.06.1976 and subsequently executed a registered lease deed on 21.03.1977 and it was agreed under the lease agreements that plaintiff was to demolish the existing construction and put up ground floor and first floor and lease out the first floor to the defendant for 30 years and thereafter, the defendants have to sell the suit property for Rs.25,000/-?
2. Whether plaintiff proves that he was always ready and willing to perform his part of the obligations under the lease agreement?RFA No.60/2017
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3. Whether plaintiff proves that he is entitled for a direction to the defendants to execute a sale deed in favour of the plaintiff in respect of the suit property?
4. Whether suit as brought is maintainable?
5. To what Order or Decree?
5. In order to prove their case, the plaintiff got himself examined as PW-1 and got marked the documents from Exs.P1 to P3. The defendant No.2 got himself examined as DW-1 and got marked the documents from Exs.D1 to D10. After hearing both side, the Trial Court by its impugned judgment and decree dated 11.11.2016 while answering Issue No.1 'partly in affirmative; Issue No.2 in the 'affirmative' and Issues No.3 and 4 in the 'negative' dismissed the suit of the plaintiff. Aggrieved by the same, the plaintiff has preferred the present appeal.
6. In response to the notice, the respondents are being represented by their counsel.
7. The Trial Court records are called for and the same are placed before this Court.
8. Heard the arguments of the learned counsel for the appellant and Respondent No.1. No arguments was addressed RFA No.60/2017 9 from the learned counsel for Respondent No.2, who has remained absent.
Since during the pendency of this appeal, the death of Respondent No.3 was reported and Respondent No.1 alone was shown as the legal representative of Respondent No.3, no separate arguments for Respondent No.3 was addressed in the matter.
9. Perused the materials placed before this Court including the impugned judgment and the Trial Court records.
10. After hearing both side and perusing the materials placed before this Court, the points that arise for my consideration in this appeal are:
i) Whether by virtue of execution of the registered lease deed dated 21.03.1977, the lease agreement dated 10.06.1979 ceases in its existence and enforceability?
ii) Whether the impugned judgment and decree under appeal warrants any interference at the hands of this Court?
11. The plaintiff who got examined as PW-1 in his examination-in-chief has reiterated his contentions taken up by RFA No.60/2017 10 him in the plaint. In order to substantiate his contentions, he got produced a certified copy of his reply notice said to have been sent to the defendants in response to their notice asking him to vacate from the schedule property and got it marked at Ex.P1. The certified copy of the sale agreement dated 10.06.1976 was got marked as Ex.P2. The certified copy of the sale deed shown to have been executed by DW-3 in his favour which document is dated 30.10.2010 was marked as Ex.P3.
DW-1 also in his examination-in-chief in the form of evidence-affidavit has reiterated the contentions taken up by him in his written statement. However, he has further stated that by virtue of the execution of the registered lease deed dated 21.03.1977, the agreement of lease dated 10.06.1976 ceases to be in its existence by virtue of novation. He produced a copy of the legal notice dated 26.03.2007 sent by them to the plaintiff asking him to vacate the suit schedule premises at Ex.D1. The certified copy of the reply notice by the plaintiff, which is an identical copy of Ex.P1 as Ex.D2. The certified copy of the legal notice, which was the rejoinder to the reply by the defendants dated 29.05.2007 as Ex.D3. The certified copy of the registered lease deed dated 21.03.1977 at Ex.D4. The death certificate of RFA No.60/2017 11 Smt.M.R.Banumathi and Sri M.R.Ramprasad are at Ex.D5 and Ex.D6 respectively. He also produced the certified copy of the order passed by this Court in W.P.No.26549 of 2012 dated 26.02.2013 at Ex.D7. The certified copy of the order dated 29.11.2010 passed by this Court in W.P.No.33270 of 2010 at Ex.D8, a copy of the judgment passed in O.S.No.5586 of 2007 at Ex.D9 and a copy of the judgment passed in R.F.A.No.379 of 2014 by this Court on 05.04.2014 at Ex.D10.
12. Even though the defendants in their written statement have taken a specific contention that there was no agreement dated 10.06.1976 and that the agreement between the parties, which requires for consideration is the registered lease deed dated 21.03.1977, however, the Trial Court in its finding has observed that the parties to the suit had earlier entered into an agreement of lease dated 10.06.1976. However, subsequently, between the same parties, a registered lease deed came to be executed on 21.03.1977, which documents were marked at Ex.P2 and Ex.D4 respectively. As such, the said finding of the Trial Court about the parties to the suit entering into a agreement of lease at the first instance on 10.06.1976 has remained to be a finding of a fact which has not been disputed RFA No.60/2017 12 or denied by either side. Similarly, the finding of the Trial Court on Issue No.3 that the plaintiff has proved that he is always been ready and willing to perform his part of the obligation under the lease agreement, also has not been denied or disputed. As such, this Court need not look into those points of the parties entering into an agreement dated 10.06.1976 and the finding of the Trial Court on the alleged readiness and willingness of the plaintiff to perform his part of the obligation. It was in the said background, the only question that remained as a bone of contention between the parties was about the existence and enforceability of Clause No.9 of the lease agreement dated 10.06.1976 particularly in the light of the very same parties, subsequently entering into a registered lease deed dated 21.03.1977, which is at Ex.D4.
It is in this regard, learned counsel for the appellant in his argument submitted that the agreement dated 10.06.1976 would not come to an end by virtue of execution of registered lease deed dated 21.03.1977. As such, both the documents survives and subsists. He further submitted that the contention of the novation, which was upheld by the Trial Court for dismissing the suit has never been pleaded by the defendants in the written statement and for the first RFA No.60/2017 13 time, in their evidence, the concept was brought in. As such, the Trial Court was not justified in applying the principle of novation though there is no novation in the case on hand. Sating that there was no necessity for the parties to specifically mention in the lease deed dated 21.03.1977 about the earlier lease agreement dated 10.06.1976 and that the non-mentioning of the same would not put an end to the existence of the agreement of lease dated 10.06.1976, the learned counsel relied upon the judgments of the Hon'ble Apex Court in BABU RAM ALIAS DURGA PRASAD VS. INDRA PAL SINGH (DEAD) BY LRS. reported in (1998)6 SCC 358 and also the judgment in BACHHAJ NAHAR VS. NILIMA MANDAL AND ANOTHER reported in (2008) 17 SCC 491.
13. Learned counsel for the respondent in his brief arguments submitted that the prayer in the plaint is vague and that no prayer is made with respect of granting alternate relief as no alternate prayer is sought for. No prayer is made as an alternate prayer for specific performance in the plaint. He further submitted that Section 20 of the Specific Relief Act being a discretionary relief, the Trial Court did not find it reasonable to exercise the discretion in favour of the plaintiff. However, he RFA No.60/2017 14 did not fail to mention that the Trial Court exercising such a discretion in favour of the plaintiff would have arisen, had the Trial Court answered Issue No.1 fully in affirmative in favour of the plaintiff holding that agreement dated 10.06.1976 was also subsisting and enforceable. Further, submitting that this Court in Regular First Appeal No.379 of 2014 in its judgment dated 05.04.2014 has made an observation that by virtue of execution of the registered lease deed dated 21.03.1997, the earlier agreement of lease dated 10.06.1976 has culminated in its subsequent document. He relied upon the judgment in MANOJ ROY AND OTHERS VS. GUNENDRA ROY reported in AIR 2007 GAUHATI 172.
14. A perusal of the prayer portion of the plaint would go to show that the plaintiff has made the following prayer in his plaint:
1. Directing the defendant 2 and 4 to execute a Sale deed in favour of the plaintiff in respect of the schedule property.
2. Grant costs of the suit,
3. Grant such other relief/s as this Hon'ble Court deems fit in the circumstances of the case.RFA No.60/2017
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15. No doubt, the said prayer though prays for a decree in favour of the plaintiff directing the defendants to execute the sale deed, but it does not give any details as to execution of a sale deed is with respect to which particular agreement was made. However by that itself, the prayer cannot be called as too vague making the Court not understanding as to what exactly the plaintiff wanted to seek from the Court. A revision of the plaint averments makes it very clear that the plaintiff has prayed the Trial Court for a direction to the defendants to execute a lease deed in pursuance of Clause No.9 of the agreement of lease dated 10.06.1976. Without seeking specific performance of the said Clause of the said agreement, the suit was filed by the plaintiff in the Trial Court. As such, the argument of the learned counsel for Respondent No.1 that the prayer in the plaint is vague, as such, the Trial Court ought not to have entertained the plaint is not acceptable.
16. The bone of contention of the dispute between the parties is on the point of the alleged existence of Clause No.9 of the agreement of lease dated 10.06.1976 subsequent to execution of a registered lease deed dated 21.03.1977 between the same parties and with respect of the very same property. A RFA No.60/2017 16 perusal of both these documents would go to show that both these documents are entered into between the same parties with respect to the very same property. The first of them being the document at Ex.P2, which is dated 10.06.1976, the nomenclature of the said document is the 'Agreement to Lease'. The other document, which is a registered lease deed dated 21.03.1977 is at Ex.D4 and its nomenclature is 'Lease Deed'.
A reading of Ex.P2 would go to show that the lessors in the said document, which includes the present respondents have specifically mentioned that due to the possession and dimension of the suit schedule property and also by virtue of construction of a house adjoining the schedule property on the west has worsened the situation in the sense that the schedule house, which is already shaking has been rendered un-inhabitable. Therefore, they are constrained to lease out the said house or make alternate use of the schedule property. With the said objective, they have set out the terms of the 'Agreement of Lease'. Among the terms of the lease, which are eleven in numbers, apart from giving right to the lessee for demolition of the existing construction on the schedule property and put up new construction on the very said property consisting of RFA No.60/2017 17 ground floor and at lease one floor above the ground floor. The parties have mentioned one more term as Clause (9) of the Agreement, which is reproduced here below:
"(9) By the expiry of this lease hereof and in the end of such extended period the Lessors shall sell all his rights, title and interest of the total property of this lease as standing thus to the lessee for money consideration of Rs.25,000-00 (Rs.Twenty five thousands only).
17. Admittedly, the subsequent registered lease deed, which is at Ex.D4 does not mention about the lease agreement, which is dated 10.06.1976. Further, admittedly, Ex.D4 also does not refer to Clause (9) of the agreement dated 10.06.1976. However, Ex.D4, which is the registered lease deed incorporates remaining of terms and conditions of the lease, which were the part and parcel of Ex.P2. Thus, relying upon this aspect, the learned counsel for the respondent submitted that the objective of the parties entering into Ex.P2 was fulfilled by execution of the subsequent registered lease deed at Ex.D4. As such, once Ex.D4, which is a registered lease deed was entered into, Ex.P2 has lost its existence and identity. As such, it is only Ex.D4, which has to be considered. Since there is no clause of sale of RFA No.60/2017 18 the suit schedule property in favour of the lessee under Ex.D4, the plaintiffs are not entitled for the relief of specific performance. It is in that regard, the learned counsel relied upon the judgment in Manoj Roy's case (supra).
In the Manoj Roy's case (supra), the question involved was about the enforceability of previous lease agreement in the background of there existing two lease agreements of two different dates. It is in that background and Section 9 and Section 105 of the Transfer of Property Act, a Single Bench of Gauhati High Court has held that even though the subject matter of the property under both the lease agreements are one and the same since by virtue of dissolution of firm with the lessor though which is in the same premises alone would hold good. As such, the first lease deed stands superseded or annulled or cancelled by virtue of the subsequent lease deed.
18. Learned counsel for the appellant relied upon Babu Ram alias Durga Prasad's case (supra) in his support wherein the question involved was whether by virtue of execution of a sale deed at a subsequent date after the earlier agreement, the Clause in the earlier agreement of re-conveyance in favour of the original vendor has stood obsolete and the original RFA No.60/2017 19 agreement has stood novated under Section 62 of the Contract Act. The Hon'ble Apex Court has discussed the principle of novation under Section 62 of the Indian Contract Act and was pleased to observe at paragraph No.15 of its judgment that "Novation under Section 62 of the Contract Act requires a clear plea, issue and evidence. Such a question cannot be raised or accepted under Section 100 CPC for the first time in second appeal. There was no such issue in the courts below and the defendant's evidence was contrary to such a theory". It was further held in the very same case by the Hon'ble Apex Court that unless there is a detailed plea and also evidence that before execution of the sale deed there was novation and the parties expressly agreed to give a go-by to the agreement of re- conveyance, no inference could be drawn that the agreement of re-conveyance contained in the agreement of sale dated 19.11.1963 which preceded the sale deed was given a go-by.
It is discussing these aspects, the Hon'ble Apex Court held that when the original agreement entered into between the parties, two aspects has to be performed by the parties, one is execution of the sale deed and second one is execution of the re-conveyance deed, provided, the vendor under the sale deed RFA No.60/2017 20 pays back the money to the original mortgagee and seeks re- conveyance of the property. The Hon'ble Apex Court observed that though it is a formal practice to mention re-conveyance clause the non-mentioning of the same would not take away the right of the party under the agreement to seek re-conveyance where such a clause is incorporated in the original agreement, which is still in subsistence.
It is relying upon the said judgment, the learned counsel for the appellant vehemently submitted that even though there is no mentioning about the plaintiff's (lessee's) right and entitlement for purchase of the property at the end of the lease period of thirty years, but Clause (9) of the Agreement dated 10.06.1976, which is at Ex.P2 still subsists. He submitted that the Trial Court without considering this aspect and misleading and misinterpreting Clause (11) of Ex.P2 has erroneously held that by virtue of execution of Ex.D4, the earlier agreement, which is at Ex.P2 has stood novated though there was no specific pleading in that regard.
19. None of the defendants have taken a plea of novation in their written statement. However, they have taken a contention that the document, which is subsisting between the RFA No.60/2017 21 parties to the suit as on the date of filing of the suit was only a document dated 21.03.1977, which is the registered lease deed. They have stated, there exists no agreement between the parties dated 10.06.1976 as on the date of the suit. Therefore, their only contention is that since the lease deed, which is the only document subsisting between the parties, which is at Ex.D4 does not mention about the lessees/plaintiff's right to purchase the property, he cannot maintain the suit for specific performance.
However, defendant No.2 in his evidence has stated that by virtue of the registered sale deed dated 21.03.1977, there comes novation of the earlier agreement including Clause (9), as such, the plaintiff gets no right to seek specific performance.
It is in the above background, the case on hand is required to be analysed regarding the subsistence of the lease agreement dated 10.06.1976 (Ex.P2) from the date of the execution of the registered lease deed dated 21.03.1977 (Ex.D4).
20. The plaintiff at several places in his plaint as well in his evidence has referred to Ex.P2 as Agreement of Lease and Sale. At the thresh-old itself, it is made clear that Ex.P2 is RFA No.60/2017 22 nomenclatured and titled as only "Agreement to Lease" and nowhere, the said document has been described as "Agreement to Lease" as well for "sale" though according to the plaintiff, Clause (9) in the said agreement entitled him to purchase the suit schedule property.
Secondly, Ex.P2 in all its preliminary recitals mentions the said document as only a document for lease, apart from describing the parties to the said document as the lessor and lessee respectively. As observed above, the parties entering into lease have stated in the very same document that the house, which was the existing construction on the subject property as on the date of the agreement of lease being a very old structure of more than 90 or 100 years and in a dilapidated condition, it was required for them to lease it out to have a new construction on the said building. It is for the said purpose, they are entering into an agreement with the lessee though giving him a right to put up a construction of involving not less than a ground floor and a first floor and to use a portion of the building for his occupation. It is noteworthy that under the same agreement, it was also mentioned that the first floor of the said construction, which was required to be put up RFA No.60/2017 23 by the lessee (plaintiff) was required to be given to the lessor for their use and occupation. However, in Clause (9) of the said document, it was mentioned as one of the covenant of the agreement that by expiry of the lease and in the end of such extended period, the lessor shall sell all his rights, title and interest of the total property of the lease as standing, thus to the lessee for money consideration of `25,000/-. Had the Clause of the agreement at Ex.P2 stopped there. Probably, the plaintiff's contention as well the argument of his learned counsel in this appeal that the Clause (9) of the agreement is the enforceable Clause and plaintiff is entitled for specific performance would have gained some weight. However, Clause (9) in Ex.P2 cannot be isolated and read separately and it has to be read in consonance with Clause (11) of the agreement, which reads as below:
"11. Since the legal requirements are not yet completed for a registered lease deed, this agreement to let-out the property mentioned in the schedule is entered into. A Pucca Lease deed shall be executed immediately after the legal requirements are satisfied and the expenses connected with the stamps and registration of the lease deed shall be paid and borne by the lessee".RFA No.60/2017
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A reading of the above Clause would go to show that the very purpose of entering into agreement of lease dated 10.06.1976 was for the reason that certain legal requirements are not yet completed to register the sale deed. That means the intention of the parties was to enter to a lease deed and due to certain non-compliance of legal requirements, they could not do that as on the date 10.06.1976, As such, they entered into a lease agreement anticipating the execution of the registered lease deed at a later date. Accordingly, Ex.D4 came into existence by the parties, which admittedly is only a lease deed but not a document of lease cum sale. Admittedly, no recital much less a recital akin to Clause (9) of Ex.P2 has been incorporated in the lease deed, which is at Ex.D4. Therefore, prima-facie one could draw a tentative inference that had really the intention of the parties been that the lessee apart from having a right to enjoy the property for about thirty years, was also to be given a preemptive right to purchase the said property for a pre-determined sale consideration of `25,000/-, the parties would have incorporated or re-produced either Clause (9) of Ex.P2 in Ex.D4 or added a similar Clause as that of in Ex.P2 even in Ex.D4. Admittedly, the said exercise RFA No.60/2017 25 has not been done by the parties. The plaintiff, as a lessee was required to be more diligent in ensuring that such a Clause is incorporated in Ex.D4. However, by virtue of the observation made by the Hon'ble Apex Court in Babu Ram's case (supra) in certain cases, it is not necessary that such a Clause should invariably to be reflected or re-produced in the subsequent document also. But the said observation of the Hon'ble Apex Court cannot be taken as a precedent applicable in all types of cases. Hence, it has to be seen as to resemblance of facts and circumstances of the case on hand and Babu Ram's case (supra).
21. In Babu Ram's case (supra), the earlier agreement entered into between the parties was an agreement, where the right to re-conveyance had been specifically reserved in favour of the executant of the said document. Further more, the original/ earlier document itself had shown that the parties are required to discharge two obligations and thus to do two tasks, one is of executing a registered sale deed, another if the borrower refunds the entire amount of `7,000/-, the original purchase in whose favour the sale deed has been executed to execute a re- conveyance deed in favour of the original borrower. Thus, two events, which are un-separable and should necessarily follow RFA No.60/2017 26 one after another were decided and reflected in the original agreement. As such, the Hon'ble Apex Court was pleased to held in the case before it that, the non-mentioning the aspect of re-conveyance in the subsequent sale deed would not by itself ipso facto annulled the agreement in so far as the re- conveyance is concerned.
Whereas, in the case on hand, as observed above, the intention of the parties as reflected in Ex.P2 throughout is only to lease the property, as such, the documents in its entirety was identified and mentioned as an agreement to lease only and nothing more. The objective of entering into that agreement was specifically mentioned as for maintaining and developing the property, which obviously was for the benefit of the lessors. Had they intended to put up a construction by removing the dilapidated building and allowing the lessee to reside there and also after thirty years, if were decided to give away the entire property to the lessee for a consideration, which was decided thirty years prior to the date of the commencement of lease the same would definitely go to create a doubt in the mind of the Court as to why should the lessors to fix 30 years term as lease and at the end sell away the property for a meager amount to the lessee, without enjoying the construction for themselves. It is however clear by the second portion of the very same recital of the Clause (11) in Ex.P2 RFA No.60/2017 27 where it is clearly stated and agreed to between the parties that the lessee to keep the construction in good condition attending to its maintenance in order that the schedule property construction shall be made available to the lessor after modenation of the lease. This is one among the recital and last recital in the lease agreement which, thus clarifies that the very purpose of leasing out the property to the lessee for a period of thirty years is only to enable him to make some investment upon the property and put up a construction and enjoy it for a period of thirty years and then to hand it over back to the lessors. Otherwise, there was no need to lease out the property for a period of thirty years. This is also because, since a consideration, which is shown as `25,000/- was also shown to have been agreed between the parties as per Clause (9), the lessors need not had to worry about the maintenance and condition of the structure to be put up by the lessee during the tenure of lease period of thirty years because they were sure to getting `25,000/- irrespective of the condition of the building if they really intended to sell it. On the other hand, even though Clause (9) is mentioned in Ex.P2 as one of the Clause but thereafter, RFA No.60/2017 28 specifically mentioning Clause (11) and more particularly, the second half of Clause (11) that the lessee should maintain the building in a good condition so that he should return the building to the lessor in a good condition, makes it clear that the intention of the lessor in Ex.P2 was not selling away the property after the period of thirty years but it was only to enable the lessor to put up a construction and enjoy the property for thirty years and to return its possession to the lessors in a good condition.
The above analysis further gains strength for the reason that as already observed above, throughout the document at Ex.P2, the parties have referred the said document as an agreement of lease only but not for an agreement of lease cum sale.
Further, the reason of entering into a lease agreement instead of a lease deed directly has also been mentioned by the parties vividly in the very same document at Ex.P2 stating that certain legal requirements are not yet completed for executing a registered lease deed, as such, they are entering into an agreement of lease. It is for the said reason, the lease deed came to be executed at a later date. Probably, when a registered lease deed came to be entered into, the parties must have known that when the intention of the lessor of the property was to get the property back and only to lease the property to the lessee to enjoy the property for a period of thirty years, in RFA No.60/2017 29 return of his investment for putting up the construction in the said property, they did not carry over Clause (9) of Ex.P2 in Ex.D4. It is for the said reason, once Ex.D4 came into existence, the defendants who are the original lessors concluded that Ex.P2 no more exists and Ex.D4 alone, has come into existence and was prevailing between the parties. As such, in their written statement, they have denied the existence of Ex.P2 as on the date, of the suit and contended that the document existing between them was only Ex.D4, which is a lease deed dated 21.03.1977. However, DW-1 instead of putting the matter in such a simple manner has used terminology of the word "novation" in his evidence for the first time. It cannot be forgotten that his evidence was an affidavit-evidence, which was pre-prepared by his counsel and signed by him. Still, by stating that there is novation, what he has made clear in the very same paragraph of his affidavit-evidence is that by virtue of execution of Ex.D4 dated 21.03.1977, the alleged agreement of lease dated 10.06.1976 failed to subsist. Thus, he has shown that Ex.D4 in a manner has acted as substitution in the place of Ex.P2. The Trial Court, which was required to appreciate the said fact in this angle has without analysing the evidence in detail has only applied the principle of novation and stated that RFA No.60/2017 30 there is novation as such, Ex.P2 has stood substituted with Ex.D4, though, infact it has acted as a novation but in a strict sense, it cannot be called as 'novation' as such. Since these facts of the case on hand varies a lot from Babu Ram's case (supra), the finding of the Hon'ble Apex Court in Babu Ram's case (supra) that even in the absence of mentioning of right of re-conveyance in the sale deed would not take away the enforceability of the clause pertaining to re-conveyance in the original agreement is not applicable in the case on hand. As such, I am not agreeable to the argument of the learned counsel for the appellant that Ex.D4 has in no way taken away the existence and enforceability of Clause (9) of Ex.P2. In that regard, the judgment relied upon by the learned counsel for the appellant in Bachhaj Nahar's case (supra) that for applying the principle of novation, there have to be specific pleadings, is not of much avail to the appellant in the case on hand.
A couple of sentence can also be added to the effect that the concept of novation in this case though was strictly not the one applicable, still was not brought before the Trial Court for the first time in the arguments stage. No doubt, there was no specific pleading in the written statement mentioning the RFA No.60/2017 31 "novation" in it. As already observed above, that is what the defendants meant by their pleading and evidence about non- existence of the earlier agreement at Ex.P2 by virtue of entering into a subsequent registered lease document, at Ex.D4. Further, the said aspect of novation was stated by DW-1 in his examination-in-chief. As such, the plaintiff had an opportunity to cross-examine him in extensively, which infact they have done.
As could be seen from Ex.D9, the defendant No.2 herein had instituted a suit against the present appellant (plaintiff) in O.S.No.5586/2007 in the Court of the X Additional City Civil and Sessions Judge, Bengaluru (CCH-26) for the relief of ejectment and damages. After contest, the said suit came to be decreed in favour of the plaintiff by the judgment dated 03.01.2014. The present appellant herein who was the defendant in the said suit challenged the said judgment and decree before the Co-ordinate Bench of this Court by filing an appeal under Section 96 of CPC in R.F.A. No.379/2014 (Res) (Ex.D-10). By the time, the said R.F.A. RFA No.60/2017 32 came for its final disposal and pronouncement of its judgment, the suit in O.S.No.6916/2007 was pending. As such, the said R.F.A. came to be disposed of though by upholding the decree of the suit directing the appellant to hand over the vacant possession of the suit schedule premises to the respondent (defendant) herein, but it was held that the same was subject to the outcome of O.S.No.6916/2007. While disposing of the said matter with the said observation, this Court in Paragraph No.20 of the judgment has also made an observation as below:
" In the lease deed, dated 21.03.2007 there is no reference to the agreement to lease and sale, dated 10.06.1976. It is to be held that the earlier document Ex.D3, dated 10.06.1976 has culminated in the later document, dated 21.03.1997 (Ex.P1); Ex.P1 has brought to an end Ex.D3. Therefore, the Trial Court's non-reliance on Ex.D3 is upholdable and particularly in the light of the Gauhati High Court's decision in Manoj Roy's case (supra).RFA No.60/2017
33 Lastly, it also cannot be ignored of the fact that undisputedly, the respondents (lessors) herein are the actual owners of the suit schedule property. Even according to Ex.P2, upon which, the appellant (lessee) relies upon, the lessors have agreed to transfer the possession of the property of the lessee for its development by putting up a construction in not less than a ground floor and a first floor therein and enjoying the property for not less than thirty years. Admittedly, for the said period of thirty years, the lessors were not entitled for any consideration except of their being accommodated in the first floor portion of the property. Thus, for the investment made by the lessee (appellant herein), he enjoyed the said property for thirty years without paying any rent to the lessor on the said property. As such, at the end of the thirty years after the expiry of the lease period, the lessors wanted the possession of the said property back to them, as such, they incorporated Clause (11) in the very same agreement at Ex.P2 with a mandate that the lessee should maintain the building in a good condition so that they deliver the same to the lessor at the end of thirty years.
Even it cannot be ignored of the fact that as per Clause (9) of Ex.P2, the amount shown to be payable by the lessee to RFA No.60/2017 34 the lessor for getting the sale deed executed in his favour was only a sum of `25,000/- that means thirty years in advance, the parties were shown to have decided the quantum of consideration payable by the lessee to the lessor, without even describing the nature of the said consideration as to whether it is a sale consideration or any other. However, even according to the plaintiffs (lessees) when defendant No.3 is said to have executed a registered sale deed in favour of the plaintiff in respect of her 1/3rd undivided share, the original alleged consideration was not considered as a valid consideration and acted upon. On the other hand, the plaintiff as a purchaser paid eight times more than the total consideration shown to have been agreed in Clause (9) thirty years ago.
Further more, in the very same sale deed shown to have been executed by the defendant No.3, which is marked by the plaintiff at Ex.P3 though a mention is made with respect to agreement dated 10.06.1976, the seller has stated that she was entitled to sell her undivided right and interest for the property, as such, she has volunteered to sell the property. However, RFA No.60/2017 35 since by the time the said sale deed came to be executed, the plaintiff has already instituted the present suit, he also ensured that a Clause was also inserted in the said document by defendant No.3 that she is executing the said document also in recognition of Clause (9) of the agreement dated 10.06.1976. But a reading of Ex.P3 in its entirety makes it very clear that irrespective of the existence of the Clause (9) in Ex.P2, defendant No.3 had decided to give away her right and interest in the property in the form of sale for a valuable consideration. As such, she has sold her undivided right and interest in the property in favour of the plaintiff for a good consideration of an amount of `2,00,000/-. This also helps in understanding the intention of the parties in executing Ex.P2 and the purpose for which Ex.P2 was entered into. Therefore, when it is clear that the intention of the lessors under Ex.P2 was not permanently to give away the suit schedule property to the lessee therein, either immediately or even after the expiry of the lease period of thirty years and when their intention was clearly to take back the property after the expiry of lease period of thirty years and also when accordingly, the alleged right to purchase that property by the lessee has not been carried over or reflected in Ex.D4, it is clear that there is no clause for the RFA No.60/2017 36 plaintiff to specifically enforce by instituting a suit for specific performance. Though with some different reasoning, the Trial Court has arrived at the same reasoning, I do not find any reason to interfere with the findings given by the Trial Court, which ultimately resulted in dismissal of the suit. Accordingly, I proceed to pass the following:
ORDER The appeal stands dismissed as devoid of merits. The Registry to transmit a copy of this judgment along with Trial Court records to the concerned Trial Court without delay.
Sd/-
JUDGE DH