Karnataka High Court
M/S D N L Enterprises vs Miss Chitralekha Thumboochetty on 28 June, 2013
1
IN THE HIGH COURT OF KARNATAKA, AT BANGALORE
DATED THIS THE 28th DAY OF JUNE 2013
BEFORE
THE HON'BLE MR.JUSTICE H.BILLAPPA
RFA.No.596/2008 c/w. RFA.No.1308/2008
RFA No.596/08
BETWEEN:
1. M/s.D.N.L.Enterprises,
79/80, Mahatma Gandhi Road,
Shrungar Shopping Complex,
Bangalore - 560 001.
Represented by its Partner
Sri.Shankar Tambre.
2. Shri.D.L.Shivanna,
Managing Partner,
79/80, Mahatma Gandhi Road,
Shrungar Shopping Complex,
Bangalore - 560 001.
And residing at No.24,
Lower Palace Orchards,
Bangalore - 560 003.
3. Smt.Asha Nanjaraj,
W/o.Sri.D.L.Nanjaraj,
Major,
No.10, Appajappa Agrahara,
Chamarajpet,
Bangalore - 560 018.
2
4. Sri.M.G.Thambre,
Aged about 89 years,
Officers Wear Depot,
M.G.Road,
Bangalore - 560 001.
5. Smt.Ambabai Thambre,
W/o.Sri.R.G.Thambre,
Aged about 75 years,
Officers Jewellery House,
M.G.Road,
Bangalore - 560 001.
6. Smt.Indirabai Thambre,
W/o.Sri.H.G.Thambre,
Aged about 70 years,
City Officers Wear Depot,
Gupt Market,
K.G.Road,
Bangalore - 560 009.
7. Sri.V.Chandrashekar,
S/o.Sri.Y.Venkataramaiah,
Aged about 54 years.
13th Cross, Kumara Park,
Bangalore - 560 020.
8. Smt.Chandini,
D/o.Sri.N.Chandappa,
Aged about 50 years,
No.10, Appajappa Agrahara,
Chamarajpet,
Bangalore - 560 018.
9. Smt.Nandini,
D/o.Sri.N.Chandappa,
3
Aged about 46 years,
No.10, Appajappa Agrahara,
Chamarajpet,
Bangalore - 560 018.
10. Smt.Sheela,
D/o.Sri.N.Krishnamurthy,
Aged about 44 years,
No.10, Appajappa Agrahara,
Chamarajpet,
Bangalore - 560 018.
11. Smt.Mallika,
D/o.Sri.N.Krishnamurthy,
Aged about 41 years,
No.10, Appajappa Agrahara,
Chamarajpet,
Bangalore - 560 018.
12. Smt.Brunda Sathyaprakash,
Aged 53 years,
W/o.Sri.S.N.Sathyaprakash,
R/at.No.669, 3rd Block,
Rajajinagar,
Bangalore - 560 010.
13. Sri.S.G.Puttaraju,
Aged about 53 years,
S/o.S.C.Gopalappa,
No.88, H.B.Samaj Road,
Basavagudi,
Bangalore - 560 004.
14. Sri.Shankar,
S/o.Sri.H.G.Thambre,
Aged about 52 years,
4
M/s.Thambre Textile,
Majestic Circle,
Kempegowda Road,
Bangalore - 560 009.
15. Sri.S.G.Babu,
Aged 51 years,
S/o.Sri.S.C.Gopalappa,
No.88, H.B.Samaj Road,
Basavanagudi,
Bangalore - 560 004. ...Appellants
(By Sri.P.H.Ramalingam, Adv.,)
AND:
1. Miss Chitralekha Thumboochetty,
Aged about 62 years,
D/o.Late F.Thumboochetty,
Residing at No.17, Promenade Road,
Frazer Town,
Bangalore - 560 005.
2. Mr.John Ravikantha Thumboochetty,
Aged about 59 years,
S/o.Late E.Thumboochetty,
Residing at No.17,
Promenade Road,
Frazer Town,
Bangalore - 560 005.
3. Mrs.Mary Geethajali Thummboochetty,
D/o.Late F.Thumboochetty,
Aged about 58 years,
Residing at No.13/4, Beale Street,
Liverpool,
5
New South Wales,
Australia.
4. Mr.Bernard Vikram Thumboochetty,
Aged about 53 years,
Son of Late F.Thumboochetty,
Residing at No.16,
Promenade Road,
Frazer Town,
Bangalore - 560 005.
5. Smt.Sumana,
D/o.Smt.Satyaprema,
Aged about 41 years,
No.10, Appajappa Agrahara,
Chamarajapet,
Bangalore - 560 018.
6. Smt.Jayashree,
Aged about 46 years,
W/o.Jayant Balakrishna,
No.14-1-53, Main Road,
Mettupalayam - 641 301.
Tamil Nadu. ...Respondents
(By Sri.Santosh Gogi, Adv., for
M/s.Holla & Holla Assts., for R1 to 4
Sri.K.Suman, Adv., for R-5
Sri.R.Nataraj, Adv., for M/s.Just Law Advs., for R6)
*******
This RSA is filed under section 96 of CPC against the
judgment and decree dated 27.03.2008 passed in
O.S.No.1848/2000 on the file of the XI Addl. City Civil
Judge, Bangalore (CCH No.8) decreeing the suit for
recovery of possession and mesne profits.
6
RFA No.1308/2008
BETWEEN:
State Bank of Mysore,
M.G.Road Branch,
Bangalore.
Rep. by its Chief Manager
Sri.M.S.Shibanidas. ...Appellant
(By Sri.B.L.Acharya, Adv.,)
AND:
1. Miss.Chitralekha Thumboochetty,
Aged 62 years,
D/o.Late F.Thumboochetty,
Residing at No.17,
Promenande road,
Frazer Town,
Bangalore 560 005.
Represented by her court
guardian the 2nd respondent.
2. Mr.John Ravikanth Thumboochetty,
Aged about 59 years,
S/o Late F Thumboochetty,
R/at No.17,Promenade Road,
Frazer Town,
Bangalore 560 005.
3. Mrs.Mary Geethanjali Thumboochetty,
(Now Mrs.Geetha Thomas)
D/o.F.Thumboochetty,
Residing at 13/4, Beale
Street ,Liverpool, New South Wales,
7
Australia,
Rep. by her PA holder the 2nd Respondent.
4. Mr.Bermard Vikram Thumboochetty,
Aged about 53 years,
S/o.F.Thumboochetty,
Residing at No.16,
Promenade Road,
Frazer Town,
Bangalore 560 005.
5. M/s.D N L Enterprises,
79/80, Mahatma Gandhi Road,
Shrungar Shopping Complex,
Rep. by its partner
Sri.Shankar Tambre.
6. Shri.D.L.Shivanna,
Managing Partner, 79/80,
Mahatma Gandhi Road,
Shrungar Shopping complex,
Bangalore 560 001.
And residing at No.24,
Lower Palace Orchards,
Bangalore-560 003.
7. Smt.Asha Nanjaraj
W/o.Sri.D.L.Nanjaraj
Major,
No.10, Appajappa Agrahara,
Chamarajapet,
Bangalore 560 018.
8. Sri.M.G.Thambre,
Aged about 89 years,
Officers Wear Depot,
8
M.G.Road,
Bangalore 560 001.
9. Smt.Ambabai Tahmbre,
W/o.Sri.R.G.Thambre,
Aged about 75 years,
Officer Jewellery House,
M.G.Road,
Bangalore 560 001.
10. Smt.Indirabai Tahmbre,
W/o.Sri.H.G.Thambre,
Aged about 70 years,
City Officers Wear Depot,
Gupt Market,
K.G.Road,
Bangalore 560 020.
11. Sri.V.Chandrashekar,
S/o.Sri.Y.Venkataramaiah,
Aged about 54 years,
13th cross, Kumara Park,
Bangalore 560 020.
12. Smt.Sumana,
D/o.Smt.Satyaprema,
Aged about 41 years,
No.10. Appajappa Agrahara,
Chamarajapet,
Bangalore 560 018.
13. Smt.Chandini,
D/o.Sri.N.Chandappa,
Aged about 50 years,
No.10, Appajappa Agrahara,
Chamarajapet,
Bangalore 560 018.
9
14. Smt.Nandini,
D/o.Sri.N.Chandappa,
Aged about 46 years,
No.10, Appajappa Agrahara,
Chamarajapet,
Bangalore 560 018.
15. Smt.Sheela,
D/o.Sri.N.Krishnaswamy,
Aged about 44 years,
No.10, Appajappa Agrahara,
Chamarajapet,
Bangalore 560 018.
16. Smt.Mallika,
D/o.Sri.N.Krishnaswamy,
Aged about 41 years,
No.10, Appajappa Agrahara,
Chamarajapet,
Bangalore 560 018.
17. Smt.Brunda Sathyaprakash,
W/o.Sri.S.N.Sathyprakash,
Aged about 53 years,
R/at No.669, 3rd Block,
Rajajinagar,
Bangalore 560 010.
18. Sri.S.G.Puttaraju,
Aged about 53 years,
S/o.S.C.Gopalappa,
No.88, H.B.Samaj Road,
Basavagudi,
Bangalore 560 004.
19. Smt.Jayashree,
W/o.Jayant Balakrishna,
10
No.14-1-53, Main Road,
Mettupalayam 641 301,
Tamil Nadu.
20. Sri.Shankar,
S/o.Sri.H.G.Thambre,
Aged about 52 years,
M/s.Thambre textile,
Majesteic Circle,
Kempegowda Road,
Bangalore 560 009.
21. Sri.S.G.Babu,
Aged about 51 years,
S/o.Sri.S.C.Gopalappa,
No.88, H.B.Samaj road,
Basavanagudi,
Bangalore 560 004. ...Respondents
(By Sri.Santosh Gogi, Adv., for
M/s.Holla & Holla, Assts., for R1-4
Sri.P.H.Ramalingam, Adv., for R5-21)
*****
This RSA is filed under section 96 of CPC against the
judgment and decree dated 27.03.2008 passed in
O.S.No.1848/2000 on the file of the XI Addl. City Civil
Judge, Bangalore, (CCH.8), decreeing the suit for recovery
of vacant possession.
These RFAs coming on for pronouncement of
judgment, this day the Court delivered the following:
11
JUDGMENT
These two appeals are directed against the judgment and decree, dated 27.03.2008, passed by the XI Addl. City Civil Judge, Bangalore City, in O.S.No.1848/2000.
2. By the impugned judgment and decree, the Trial Court has decreed the suit of the plaintiffs and has directed the defendants to vacate and hand over actual possession of the suit schedule property to the plaintiffs within one month. The enquiry regarding mesne profits also has been ordered.
3. Aggrieved by that, the appellants-defendants 1 to 7, 9 to 14, 16 and 17 have filed RFA.No.596/2008. RFA.No.1308/2008 has been filed by the State Bank of Mysore which is not a party to the proceedings.
4. The appellants in RFA No.596/2008 are the defendants 1 to 7, 9 to 14, 16 and 17, the respondents 1 to 12 4 are the plaintiffs and the respondents 5 and 6 are the defendants 8 and 15 before the Trial Court.
5. The parties will be referred to with reference to their rank in the original suit O.S.No.1848/2000.
6. Briefly stated the facts are:
The respondents 1 to 4 i.e., the plaintiffs filed suit in O.S.No.1848/2000 for recovery of possession of the schedule property from the defendants and for mesne profits and interest on mesne profits. The case of the plaintiffs was that the plaintiffs are the joint owners of the suit schedule property bearing No.79 and 80 (old Nos.12 and 12A), Mahatma Gandhi Road, Bangalore. The plaintiffs leased out the suit schedule property in favour of the first defendant through registered lease-deed dated 3.7.1969. The period of lease was 32 years commencing from 14.3.1968. The first defendant is a registered partnership firm. The defendants 2 to 12, Smt.Sundarbai Thambre, 13 Sri.S.N.Nanjundaiah and Sri.S.C.Gopalappa were the original partners. Before filing the suit, the plaintiffs obtained a copy of the Register of Firms. It shows that the first defendant -Firm is registered as No.571/1969-70 on 22.8.1969. Fourteen persons i.e., the defendants 2 to 12, Smt.Sundarbai Thambre, Sri.S.N.Nanjundaiah and Sri.S.C.Gopalappa are shown as partners.
7. It is stated, the first defendant filed a false and fraudulent suit in O.S.No.1641/2000 and obtained an order of exparte injunction. The counsel for the plaintiffs in O.S.No.1641/2000 informed the fourth plaintiff in this case regarding filing of the suit and sent a copy of the plaint and other papers. From the plaint and other documents sent, the plaintiffs find that the first defendant -Firm was reconstituted under a deed dated 24.5.1995 and three new partners have been added. They are defendants 13 to 15. The plaintiffs are not admitting that the defendants 13 to 15 are partners. The plaintiffs have impleaded the 14 defendants 16 and 17 as parties as their names were found in the extract of the Register of Firms as having joined the first defendant -Firm on 1.4.1977. The plaintiffs have not impleaded Smt.Sundarbai Thambre, Sri.S.N.Nanjundaiah and Sri.S.C.Gopalappa as it is stated that Smt.Sundarbai Thambre is retired and Sri.S.N.Nanjundaiah and Sri.S.C.Gopalappa are stated to have been dead.
8. The first defendant -Firm was constituted for carrying on the business of taking on lease the suit schedule property and the term of the partnership is co- terminus with the period of lease. The lease-deed entitled the first defendant -Firm to demolish the existing building and to put up such structure as they deem fit which shall not be less than 40,000 sq.ft. in area. At the end of lease period, the first defendant shall hand over the suit schedule property to the plaintiffs together with all buildings, fittings, fixtures etc., without any compensation. The lease-deed entitles the first defendant to grant sub-leases of the 15 building either wholly or in part in favour of the third parties subject to the condition that the period of lease/sub-lease shall not extend beyond the period of lease i.e., 32 years from 14.3.1968. The first defendant alone is answerable to the plaintiffs. It is stated, the first defendant demolished the existing structures and put up a commercial building known as "Shrungar Shopping Centre". The first defendant has been making illegal attempts to create rights in favour of third parties. Therefore, the plaintiffs have filed suit in O.S.No.4935/1998 for permanent injunction and temporary injunction has been granted and it is subsisting.
9. The plaintiffs issued legal notice dated 20.12.1999 informing the defendants that the period of lease expires on 13.3.2000 and calling upon the defendants to surrender vacant possession of the suit schedule property to the plaintiffs on or before 13.3.2000. The defendants 1, 2, 4, 5, 7 and 15 were served. The notices sent to the other defendants have been returned unserved. 16 The lease period of 32 years has come to an end on 13.3.2000. The defendants are liable to vacate and handover vacant possession of the suit schedule property to the plaintiffs. The first defendant gave false and untenable reply stating that the father of the plaintiffs had agreed to extend the lease by ten years. It is stated, the plaintiff's father had no right, title or interest in the suit schedule property. Therefore, he was not competent to create any right in the suit schedule property in favour of the defendant. The father of the plaintiffs did not agree for extension of lease. The suit schedule property originally belonged to Mrs.Philomena Thumboochetty, the mother of the plaintiffs and she settled the property in favour of the plaintiffs through registered settlement deed dated 1.2.1968.
10. The defendants claiming that the plaintiffs father had agreed to extend the lease by ten years have filed suit in O.S.No.1641/2000 for declaration that the lease stands 17 extended for a period of ten years, for specific performance and permanent injunction. The defendants have obtained exparte interim order. The suit in O.S.No.1641/2000 is false and frivolous.
11. The first defendant and its partners have failed to comply with the demand to vacate the premises. They are continuing in possession without any right. The defendants are required to handover vacant possession of the suit schedule property with the existing structures, fittings and fixtures. The continuation of possession of the suit schedule property by the defendants after determination of the lease is without authority of law. Therefore, the defendants are liable to pay mesne profits for use and occupation of the suit schedule property. The suit schedule property is a commercial property located in a prime locality. The present market rent for the suit schedule property would be more than `.25,00,000/- per month. The plaintiffs are confining their claim to 18 `.25,00,000/- per month. Therefore, the plaintiffs have prayed for decree directing the defendants to vacate and hand over vacant possession of the suit schedule property to the plaintiffs and to pay mesne profits with interest.
12. The first defendant has filed its written statement contending that the suit is not maintainable. The first defendant is a registered partnership firm constituted on 17.5.1968 and registered on 22.8.1969. The nature of business of the first defendant is taking properties on lease, purchase or acquire immovable properties and to demolish, alter, improve or reconstruct the property for letting, hiring or selling to the best advantage of the firm. The main place of business is at No.80/1, Mahatma Gandhi Road, Bangalore, i.e., the suit schedule property.
13. The suit schedule property originally consisted of an old building with some vacant land. The plaintiffs and their father being owners approached the first defendant for 19 development of the property. There were negotiations between the plaintiffs and the first defendant. Thereafter, a long term lease-cum-development project by putting up a modern commercial complex was resolved. Accordingly, negotiations resulted in lease agreement dated 3.7.1969. Though the document is called as lease-deed, the intention of the parties was to enter into lease-cum-development agreement.
14. The agreement was for a period of 32 years commencing from 14.3.1968 as provided in clause 2. There was also an assurance by the first lessor Francis who died in 1989 to continue the tenure even thereafter.
15. In clause 5 of the lease deed it is provided that the lessees shall be at liberty to demolish the existing old building and to put up a construction to a minimum area of 40000 sq.ft. The first defendant has constructed shopping- cum-commercial complex called Shrungar Complex to the 20 extent of about 85,000 sq.ft. which is more than what was agreed.
16. It is stated, during 1983, on 1.9.1983, the father of the plaintiffs wrote a letter to the first defendant asking for loan of `.50,000/- without interest and stating that the same may be recovered at the rate of `.2,000/- per month in 25 installments. Based on that, the partners of the first defendant resolved that the first defendant shall pay a sum of `.35,000/- without any recovery from monthly rentals, but with the specific understanding that the lease shall be extended by ten years on mutual terms which can benefit both the parties. The father of the plaintiffs was informed that he shall encash the cheques only on the condition that the lease period shall be extended by ten years. Accordingly, the first defendant issued two cheques, one for `.25,000/- and another for `.10,000/- dated 30.9.1983. The cheques were duly encashed by the father of the plaintiffs and expressly agreed for extension of lease by ten 21 years. It is stated, by act of the parties, the lease agreement stands extended by ten years. The total period is 42 years from 14.3.1968. It is stated, the first defendant approached the Civil Court in O.S.No.1641/2000 for declaration that the lease-deed dated 3.7.1969 stands extended by ten years and for specific performance and injunction. It is stated in O.S.No.1641/2000, interim order of injunction has been granted and it is confirmed later.
17. It is denied that the plaintiffs are the joint owners of the suit schedule property and lease is granted only to the firm. It is stated that the suit is not maintainable in view of O.S.No.1641/2000. The plaintiffs have admitted that their father Francis Thumboochetty had entered into lease with the defendants, but they do not want to honour the commitment of their father for extension of lease. If the lease has come to an end, certain adjustments should have been made. The plaintiffs did not choose to accept the commitment of their father 22 and they have raised this issue after the death of their father.
18. It is stated, if the plaintiffs do not want to accept the words of their father, they must abandon the whole contract as sham and cannot rely upon the same. The contract has been entered on behalf of the unsound person suffering from serious mental disorder and it is vitiated. If the lease has to come to an end the advance amount should have been adjusted towards the rent payable towards last six months. It has not been done. It indicates that the plaintiffs were aware that the lease has been extended. There was considerable delay in the tenants vacating and delivering vacant possession of the premises to enable the defendants to put up constructions. Thereafter, the father of the plaintiffs has permitted the defendants to put up more construction than what was agreed. The original contract has been varied and 23 therefore, the father of the plaintiffs permitted the defendants to continue in the suit schedule property.
19. It is stated, the plaintiffs are estopped from claiming that their father had no right over the suit schedule property. The defendants were dealing with Francis Thumboochetty who was close associate of some of the family members of the defendants. Therefore, there was no room to disbelieve the words of Thumboochetty.
20. It is stated, the notice issued by the plaintiffs is bad in law. Notice was not issued to all the concerned persons. The defendants have invested huge amount. They have let out the premises for lower rents. The plaintiffs are trying to prejudice the mind of the Court.
21. The plaintiffs have pleaded that they are the exclusive owners of the suit schedule property by virtue of the settlement deed dated 1.2.1968. In the year 1969, the plaintiffs father has entered into lease deed which is the 24 subject matter of this suit. The lease deed is not challenged anywhere. The plaintiffs are claiming that as per the lease-deed, the defendants are liable to vacate and hand over the suit schedule property. Very surprisingly, the plaintiffs have contended that their father had no right over the suit schedule property. If that is so, the plaintiffs cannot compel the defendants to perform the terms of the lease deed. The suit is liable to be dismissed for non- joinder and mis-joinder of parties. The plaintiff No.1 is insane and no permission is sought to represent her. It is, therefore, the first defendant has prayed for dismissal of the suit.
22. The Trial court has framed the following issues:
1. Whether the suit is not maintainable in view of O.S.No.1641/2000?
2. Whether the termination of tenancy is as per law?
3. Whether the plaintiff is entitled to damages as claimed as mesne profits?25
4. Whether the plaintiff is entitled to possession?
5. So what relief?
23. The Trial Court has answered issue Nos.1 to 4 in favour of the plaintiffs and consequently, the suit has been decreed. The defendants have been directed to vacate and hand over actual possession of the suit schedule property to the plaintiffs within one month.
24. Aggrieved by that, the appellants-defendants 1 to 7, 9 to 14, 16 and 17 have filed RFA.No.596/2008. The State Bank of Mysore which is not a party to the proceedings has filed RFA.No.1308/2008.
25. The learned counsel for the appellants contended that the impugned judgment and decree cannot be sustained in law. He also submitted that the Trial Court has failed to consider the evidence on record in proper perspective. Further he submitted that the Trust continues even after the death of the Trustee. The suit should have 26 been filed in the name of the trust. The suit is not maintainable. The lease-deed is executed by the Trustee. There is no identifiable property which has vested in any one of the plaintiffs. Khatha of the properties stands in the name of the first defendant. The application under Section 10 of CPC has been rejected. The lease is by the Trust and the plaintiffs are not the lessors. There is no relationship of landlord and tenants between the plaintiffs and the defendants. O.S.No.1641/2000 has been filed by the defendants for declaration, specific performance and injunction. Ex.D5 is the letter written by the father of the plaintiffs requesting for loan of `.50,000/-. Ex.D6 is the letter addressed to the plaintiffs father stating that the partners have resolved to pay additional deposit of `.35,000/- subject to the condition that the plaintiffs father is agreeable for extension of lease by ten years. The cheques have been encashed. Therefore, the lease stands extended by 10 years. Further he submitted that 27 O.S.No.1641/2000 and O.S.No.1848/2000 should have been tried together. There is a procedural impropriety which is a mistake by the Court. He also submitted that the wills have not been produced and therefore, adverse inference has to be drawn. Further he submitted that Ex.D6 is wrongly considered. Inviting my attention to Section 51 of the T.P. Act, the learned counsel for the appellant submitted that no relief is granted for excess of construction put up.
26. Placing reliance on the decision of the Hon'ble Supreme Court reported in AIR 1988 SC page 1531, the learned counsel for the appellants submitted that the act of the Court should harm none. In the present case, both the suits should have been tried together.
27. Placing reliance on the decision of the Hon'ble Supreme Court reported in AIR 1968 SC page 1413, the learned counsel for the appellants submitted that the Wills 28 have not been produced and therefore, adverse inference has to be drawn.
28. Placing reliance on the decision of the Hon'ble Supreme Court reported in (2004) 8 SCC page 706, the learned counsel for the appellants submitted that sub- tenants are necessary and proper parties to the proceedings.
29. Placing reliance on the decision of the Hon'ble Supreme Court reported in (2007) 1 SCC page 202, the learned counsel for the appellants submitted that independent right has been conferred on the sub-tenants and they would not be affected by the eviction decree.
30. Placing reliance on the decision of the Hon'ble Supreme Court reported in (1989) 2 SCC page 505, the learned counsel for the appellants submitted that the re-entry of lessor after the expiry or termination of lease can be only by a judicial process.
29
31. Placing reliance on the decision of the Hon'ble Supreme Court reported in (1987) I SCC page 712, the learned counsel for the appellants submitted that the rights of the sub-tenants are not affected and sub-tenants are not bound to deliver possession.
32. Placing reliance on the decision of the Hon'ble Supreme Court reported in AIR 1964 S.C. page 1305, the learned counsel for the appellants submitted that sub-tenant cannot be ejected.
33. Further placing reliance on the decision of the Hon'ble Supreme Court reported in ILR 1985 KAR page 3662, the learned counsel for the appellants submitted that execution of lease on behalf of a person of unsound mind is without legal authority and lease is invalid.
34. Placing reliance on the decision of the Bombay High Court reported in AIR 1973 Bombay page 276, the learned counsel for the appellants submitted that in a suit 30 filed by a person of unsound mind, it is the duty of the court to hold an inquiry.
35. Placing reliance on the decision of the Hon'ble Supreme Court reported in ILR 1991 KAR page 1256, the learned counsel for the appellants submitted that a lawful sub-tenant is deemed to be a tenant if interest of tenant is determined. Eviction of tenant on any ground personal to tenant does not render sub-tenant liable for eviction.
36. Placing reliance on the decision reported in ILR 1975 Karnataka page 1604 and ILR 2006 KAR page 2561, the learned counsel for the appellants submitted that the valuation for the purpose of suit cannot be made on the basis of rent of the vacant land. Separate valuation for buildings must be given.
37. Placing reliance on the decision of the Hon'ble Supreme Court reported in AIR 1960 SC page 941 and AIR 1964 SC page 993, the learned counsel for the 31 appellants submitted that no finality can be imparted to interlocutory order and it does not operate as res judicata. It can be challenged in the appeal.
38. Placing reliance on the decision reported in ILR 2012 Karnataka page 5474, AIR 1984 NOC page 274 (Kant) and 1977 (1) KLJ page 270 the learned counsel for the appellants submitted that the appellants have built on the land leased to them, therefore by virtue of the doctrine of dual ownership, if the appellants have let out the building, it would not amount to sub-letting of the lease-hold property.
39. Placing reliance on the decision of the Supreme Court reported in (2002) 2 SCC page 656, the learned counsel for the appellants submitted that in a decree passed against the appellants, the sub-tenants cannot be physically dispossessed. He therefore submitted that the impugned judgment and decree cannot be sustained in law. 32
40. As against this, the learned counsel for the respondents 1 to 4 submitted that the impugned judgment and decree does not call for interference. He also submitted that the Trial Court on proper consideration of the material on record has rightly decreed the suit and therefore, the impugned judgment and decree does not call for interference. Further he submitted that all the partners are made parties. The lease deed was dated 3.7.1969. The lease has expired on 13.3.2000. The plaintiffs have issued legal notice dated 20.12.1999 calling upon the defendants to hand over vacant possession of the suit schedule property. Thereafter, the suit has been filed. In paras 5 and 6 of the written statement it is stated that the plaintiffs are the owners and they have participated in the negotiations. He also submitted that there was no order to club the cases together. There was a direction by this Court to dispose of the matter. Accordingly, the matter has been disposed of. Further he submitted that 33 O.S.No.1641/2000 has been filed for declaration that the lease stands extended by ten years, which is already over. The Trial Court has disposed of the matter pursuant to the direction of this Court in MFA.No.9694/2005. Therefore, the defendants are not prejudiced in any way.
41. Further he submitted that there is no plea in the written statement regarding Trust or the suit should have been filed in the name of the Trust. It is raised for the first time in the appeal. The property has been settled through the settlement-deed dated 1.2.1968. It provides that when the plaintiffs 2 to 4 attain majority, 1/4th share each should be made over to the plaintiffs 2 to 4. The plaintiffs 2 to 4 have attained majority. They are co-owners. The first plaintiff is represented by a guardian appointed by the court in a separate proceedings. He also submitted that Ex.D5 letter has been written by the plaintiff's father asking for loan. Ex.D6 is a concocted document. There is no plea or material on record to show that Ex.D.6 was sent by post 34 or delivered to the plaintiffs father. DW.1 has not stated regarding the extension of lease. There is nothing on record to show that there was an extension of lease by ten years and it was accepted by the father of the plaintiffs. Dw1 in his cross-examination has stated that the amount was paid towards loan and not for extension of lease. The partnership has been reconstituted as per Ex.D4 for the remaining period of five years only. There is no plea regarding Trust in O.S.No.1641/2005. It is filed against the plaintiffs for extension of lease. Inviting my attention to section 59 of the Mental Health Act, 1987, the learned counsel for the respondents submitted that the Manager appointed under the Mental Health Act has power to manage the property of the mentally ill person.
42. Placing reliance on the decision reported in ILR 2005 Kar page 4730, the learned counsel for the respondents 1 to 4 submitted that when the relationship of land-lord and tenant is not disputed before the Trial Court, 35 it is not open to the tenant to dispute the ownership before the appellate court.
43. Placing reliance on the decision of the Hon'ble Supreme Court reported in (2005) 1 SCC page 705, the learned counsel for the respondents 1 to 4 submitted that once the tenancy comes to an end by determination of lease, the right of the tenant to continue in possession comes to an end. For any occupation of the premises thereafter, the tenant becomes liable to pay the damages at the rate at which the landlord could have let out the premises on being vacated by the tenant.
44. Placing reliance on the decision reported in AIR 1991 SC page 1966, the learned counsel for the respondents 1 to 4 submitted that a co-owner can file a suit. A co-owner is as much an owner of the entire property as the sole owner of the property. 36
45. Placing reliance on the decisions of the Hon'ble Supreme Court reported in AIR 1964 SC 1889 and (1988) 3 SCC page 44 the learned counsel for the respondents 1 to 4 submitted that law does not require that the sub-lessee be made a party to the ejectment suit against the lessee if there is valid termination of lease.
46. Placing reliance on the decision reported in (2004) 8 SCC page 706, the learned counsel for the respondents 1 to 4 submitted that in a suit for possession by the land-lord against the tenant, sub-tenant is not a necessary party.
47. Placing reliance on the decision reported in AIR 2004 SC page 4377, the learned counsel for the respondents 1 to 4 submitted that the sub-tenants are not necessary parties to the proceedings. It is not necessary to join the sub-tenants as parties to the proceedings. Non- 37 joinder of sub-tenants will not make the decree a nullity or in-executable.
48. Placing reliance on the decision of the Supreme Court reported in AIR 1986 Calcutta page 403, the learned counsel for the respondents 1 to 4 submitted that option of renewal of lease for a further period cannot be exercised by a letter. It must be by a registered instrument.
49. Placing reliance on the decision of the Hon'ble Supreme Court reported in 1993 (4) SCC page 6, the learned counsel for the respondents 1 to 4 submitted that when there is no denial in the written statement, the allegation is deemed to be admitted.
50. Further placing reliance on the decision of the Supreme Court reported in 2005 (11) SCC page 314, the learned counsel for the respondents 1 to 4 submitted that 38 admissions in the pleadings and judicial admissions can be made foundations of rights of parties.
51. Placing reliance on the decision reported in AIR 1984 Karnataka page 214, the learned counsel for the respondent submitted that the tenant contends that there was an agreement for extension of lease by ten years. During the pendency of the suit, ten years period has expired. In such an event, the decree for possession is valid as the period of lease set up by the tenant has expired.
52. Placing reliance on the decision reported in 1979 (2) KLJ page 8, the learned counsel for the respondents submitted that the court can take into consideration the subsequent event and the lease period has expired by efflux of time.
53. Placing reliance on the decisions reported in (2004) 5 SCC page 222 and (1976) 4 SCC page 52 the 39 learned counsel for the respondents 1 to 4 submitted that if there are conflicting views the opinion of the larger bench prevails.
54. He, therefore, submitted that the Trial Court on proper consideration of the material on record has rightly decreed the suit and therefore, the impugned judgment and decree does not call for interference.
55. In reply, the learned counsel for the appellant submitted that the first plaintiff is disabled and the suit is not maintainable. The Guardian and Wards Act is not applicable. The proceedings are vitiated.
56. The learned counsel for the appellant in RFA.No.1308/2008 contended that the appellant is not a party to the suit. The appellant is a tenant since 1942. The suit is bad for non-joinder of necessary parties. On determination of the lease, the appellant becomes direct tenant under the plaintiffs. Therefore, the decree does not 40 bind the appellant. The appellant cannot be thrown out without making the appellant as a party. He also invited my attention to section 116 and 108(J) of the T.P. Act.
57. Placing reliance on the decision reported in AIR 1964 SC page 1305, the learned counsel for the appellant submitted that the sub-lessee can maintain the appeal.
58. Placing reliance on the decision reported in AIR 1987 SC page 770, the learned counsel for the appellant submitted that the land-lord cannot seek possession from the sub-tenant without making the sub-tenant as a party to the proceedings.
59. Placing reliance on the decision reported in (2007) 1 SCC page 202, the learned counsel for the appellant submitted that the appellant was lawfully inducted as tenant even prior to the lease deed and therefore, the decree does not bind the appellant.
41
60. Placing reliance on the decision reported in AIR 1989 SC page 997, the learned counsel for the appellant submitted that the lessor can resume possession only in the manner recognized by law. He therefore, submitted that the appeal may be allowed.
61. The learned counsel for the respondents 1 to 4 in RFA.1308/2008 submitted that the appellant was not a party to the proceedings before the Trial Court. The appellant has become a tenant under DLN Enterprises as tenancy was attorned. The appellant was aware of the proceedings, but did not to choose to implead itself as a party to the proceedings. The appellant being a sub-lessee is not a necessary party to the proceedings and cannot contend that the decree does not bind the appellant. The appellant is a tenant under the DLN Enterprises. The lease period has expired. The decree passed against the defendants binds the appellant also. Therefore, the appeal may be dismissed.
42
62. Placing reliance on the decisions reported in (2004)8 SCC page 706 and (1988) 3 SCC page 44, the learned counsel for the respondents 1 to 4 submitted that the sub-lessee is not a necessary party. The decree binds the sub-tenant. In the present case, the lease has expired and the Trial Court has rightly decreed the suit. Therefore, the impugned judgment and decree does not call for interference.
63. Placing reliance on the decisions reported in (2004) 5 SCC page 222 and (1976) 4 SCC page 52, the learned counsel for the respondents 1 to 4 submitted that if there are conflicting views the opinion of the larger bench prevails.
64. I have carefully considered the submissions made by the learned counsel for the parties.
65. The points that arise for my consideration are:
(1) Whether the suit was maintainable?
43(2) Whether the suit in O.S.No.1641/2000 and suit in O.S.No.1848/2000 should have been tried together?
(3) Whether the plaintiffs are entitled for possession?
(4) Whether the judgment and decree passed in O.S.No.1848/2000 binds the appellant in RFA.No.1308/2008?
(5) Whether the impugned judgment and decree calls for interference?
POINT No.1:
66. The suit in O.S.No.1848/2000 has been filed by the plaintiffs for recovery of possession, mesne profits and interest on mesne profits. It is contended by the defendants that the suit was not maintainable. The suit should have been filed in the name of the Trust. The Trust continues even after the death of the Trustee. 44
67. The appellants/defendants have not raised any plea in the written statement regarding the Trust or the suit should have been filed in the name of the Trust. In the absence of specific plea, the defendants cannot contend in the appeal that the suit should have been filed in the name of the Trust. In the written statement, in paras 5 and 6, it is stated that the plaintiffs and their father being owners, approached the 1st defendant and there were negotiations between the plaintiffs and the first defendant. The suit schedule property has been settled in favour of the plaintiffs by their mother through Ex.P4 -settlement deed. The plaintiffs' father has been appointed as the trustee. The settlement deed provides that as and when the plaintiffs 2 to 4 attain the age of 18 years the trustee shall make over a fourth of the properties belonging to the Trust along with the balance of the profits or income at the credit of the plaintiffs 2 to 4. With regard to the first plaintiff the settlement deed provides that she shall be entitled for life 45 interest in the remaining 1/4th share. The trustee shall hold 1/4th share of the first plaintiff for the duration of her life and on her death 1/4th share along with accumulated profit shall be made over equally to the plaintiffs 2 to 4. The Trustee can appoint one or more persons to act as Trustee jointly with him or he can nominate one or more persons to act in his place as Trustee on his death. The Trustee has not nominated any person as provided in the settlement deed. The father of the plaintiffs is no more. No person has been nominated to act in the place of the Trustee. Therefore, the Guardian/Manager has been appointed by the court in Misc.No.10099/97 under sections 50 and 52 of the Mental Health Act, 1987 to look after the first plaintiff and manage her movable and immovable properties. The first plaintiff is represented by her guardian Sri.John Ravi Thumboochetty appointed under the Mental Health Act. The plaintiffs have attained majority. The plaintiffs 2 to 4 are entitled for 1/4th share each in the suit schedule 46 property on attaining 18 years of age as per the terms of the settlement deed. The trustee has not nominated any person to act in his place for the first plaintiff. Guardian/Manager has been appointed by the court under the Mental Health Act. He represents the first plaintiff in the suit. The property is still joint. It is not made over to the plaintiffs 2 to 4 in terms of the settlement deed. On attaining majority, the plaintiffs 2 to 4 have become co- owners. As co-owners, they can maintain the suit. The suit is filed by the plaintiffs as co-owners. In paras 5 and 6 of the written statement, it is stated that the plaintiffs and their father being owners approached the first defendant and there were negotiations between the plaintiffs and the first defendant. There is no plea in the written statement that the suit should have been filed in the name of the Trust. O.S.No.1641/2000 has been filed by the defendants for declaration, specific performance and permanent injunction against the plaintiffs. The contention of the 47 defendants that the suit should have been filed in the name of the Trust cannot be accepted. The plaintiffs 2 to 4 being co-owners and the 1st plaintiff having life interest can maintain the suit.
68. It is contended by the defendants that the first plaintiff is mentally unsound and guardian cannot be appointed under the provisions Guardian and Wards Act. The Trust-deed Ex.P4 provides that the trustee shall hold 1/4th share of the 1st plaintiff during her life time. Thereafter, it shall go to the other plaintiffs in equal share. The trust-deed also provides that the trustee can nominate a person or persons to act in his place after his death. The trustee has not nominated any person to act in his place after his death. In the proceedings under the Mental Health Act, a guardian/Manager has been appointed for the first plaintiff. The first plaintiff is represented by her guardian/Manager appointed under the provisions of the 48 Mental Health Act. Therefore, there is no merit in the contention that the suit is not maintainable.
69. Ex.P4 is the settlement deed. The father of the plaintiffs has been appointed as trustee to manage the affairs of the property. The plaintiffs have attained majority. Under the terms of the settlement deed, the plaintiffs 2 to 4 are entitled to 1/4th share each on attaining majority. The property is not made over to plaintiffs 2 to 4 in terms of the settlement deed. The plaintiffs father has not nominated or appointed any person to act in his place for the first plaintiff. On attaining majority, the plaintiffs 2 to 4 have become co-owners. The first plaintiff is represented by a guardian/Manager appointed under the provisions of the Mental Health Act. Therefore, the plaintiffs 2 to 4 being co-owners and the first plaintiff having life interest can maintain the suit. In AIR 1991 SC page 1996, it has been held that co-owners can maintain the suit. In the present case, the plaintiffs 2 to 4 are the 49 co-owners and the first plaintiff has life interest and she is represented by a guardian appointed by the Court under the Mental Health Act. Therefore, the plaintiffs can maintain the suit.
70. The lease-deed is executed by the father of the plaintiffs as Trustee and one of the plaintiffs. The plaintiffs 2 to 4 have become co-owners on attaining majority. The plaintiffs have issued legal notice dated 20.12.1999 as per exhibit P3 calling upon the defendants to vacate and hand over vacant possession of the suit schedule property. The defendants have replied the legal notice as per Ex.D12 asking the plaintiffs to co-operate in the execution of the formal document extending lease by another ten years. The suit has been filed by the defendants in O.S.No.1641/2000 for declaration, specific performance and injunction against the plaintiffs. Therefore, it cannot be said that there is no relationship of landlord and tenants between the plaintiffs and the defendants. Point No.1 50 answered accordingly. The suit is maintainable. The plaintiffs being co-owners can maintain the suit.
POINT No.2:
71. The appellants/defendants have contended that the suit in O.S.No.1641/2000 and O.S.No.1848/2000 should have been tried together and there is procedural impropriety. Suit in O.S.No.1641/2000 has been filed by the appellants-defendants for declaration that the lease deed dated 3.7.1969 stands extended by ten years and to direct the plaintiffs to execute the renewal agreement. The suit in O.S.No.1848/2000 has been filed by the plaintiffs for recovery of possession, mesne profits and interest on mesne profits. The appellants have filed application under section 10 of CPC for stay of further proceedings. It has been rejected. In MFA.No.9694/2005, this Court has directed the Trial Court to dispose of the matter within a specified period. The defendants have participated in the proceedings. They have adduced evidence. The trial 51 court considering the material on record has decreed the suit. The suit in O.S.No.1641/2000 has been filed by the defendants for declaration that the lease deed dated
03.07.1969 stands extended by 10 years and for specific performance and injunction. The Trial Court has recorded a finding that there was no agreement for extension of lease by ten years. Apart from this, ten years period also has expired. Therefore, it cannot be said that the defendants are prejudiced in any way for not trying O.S.No.1641/2000 and O.S.No.1848/2000 together. The trail court has disposed of the matter as per the direction of this court. The appellants/defendants have effectively participated in the proceedings. Question of extension of lease also has been considered and a finding has been recorded that there was no agreement for extension of lease by 10 years. The said period of 10 years also has expired. Therefore, the appellants cannot have any grievance. Point No.2 answered, accordingly. 52
POINT No.3:
72. The lease deed Ex.P2 is dated 3.7.1969. The lease was for a period of 32 years. It has expired on 13.3.2000. The plaintiffs have issued legal notice dated 20.12.1999 as per Ex.P3 calling upon the defendants to hand over possession on or before 13.03.2000. The defendants have contended that the father of the plaintiffs had agreed for extension of lease by 10 years. There is no material on record to show that there was extension of lease by 10 years or the father of the plaintiff had agreed for extension of lease by 10 years. Ex.D5 is the letter dated 1.9.1983 addressed to the Secretary of D.L.N. Enterprises. The father of the plaintiffs has requested for loan of `.50,000/- to perform the marriage of one of his sons. Ex.D6 is the letter dated 30.9.1983 addressed to Thumboochetty and R.Thumboochetty, stating that the partners have agreed to pay additional deposit of `35,000/-
without any recovery from the monthly rentals. It is also 53 stated, the partners have sanctioned additional deposit with a specific understanding to extend the lease by another ten years on mutual terms which shall be beneficial to both the parties and two cheques have been sent. If the proposal is agreeable and acceptable, the cheques may be encashed. DW.1 in his cross examination at paras 40 and 41 has stated as follows:
During 1983 there was no secretary for 1st defendant. One Nanjaraj was the Manager. Ex.D5 is addressed to the secretary of the first defendant. In Ex.D5 Francis Thumboochetty has aksed for `.50,000/- for the marriage of one of his sons. In Ex.D5 it is stated that Franscis Thumboochetty has asked for loan of `.50,000/- for the marriage of his son. In Ex.D.5 Francis Thumboochetty has not stated anything regarding extending of lease period. A meeting was called within four or five days after receipt of Ex.D5. Thereafter, loan was advanced to Thumboochetty. Thumboochetty was looking after the properties as Trustee. He does not know whether Thumboochetty had no right in the property. 54 Though Thumboochetty had asked for a loan of `.50,000/- a sum of `.35,000/- was paid. ExD6 was written to Francis Thumboochetty and his son Ravikanth Thumboochetty. He does not know whether Ravikanth Thumboochetty had not asked for loan. He does not know whether Ex.D6 letter was given to Thumboochetty and his son. Normally, such letters are delivered in person. He does not know whether there are any documents to show that Ex.D6 letter was received by Thumboochetty and his son. He does not know whether any documents are produced to show that letter was received by Thumboochetty and his son. Two cheques were sent along with Ex.D6. He was not looking after the affairs of the first defendant. He does not know whether Ex.D6 was received by Thumboochetty. He does not know whether there are other documents except Ex.D6 to show that the lease period was extended.
73. It is clear from the evidence of DW.1 that he does not know whether Ex.D6 was served on Thumboochetty and his son. There is no evidence on 55 record to show that Ex.D6 was served on Thumboochetty or his son or Ex.D6 was sent to them through post. Ex.D5 shows that a loan of `.50,000/- was asked by Thumboochetty, the father of the plaintiffs to perform the marriage of one of his sons. Ex.D6 shows that the partners have resolved to pay additional deposit of `.35,000/-
subject to the condition that Thumboochetty agrees for extension of lease period. There is nothing on record to show that Ex.D6 was received by Thumboochetty or his son either in person or through post and they agreed for extension of lease by ten years. Therefore, it is difficult to believe that the father of the plaintiffs had agreed for extension of lease by ten years. Based on Ex.D6, it cannot be said that there was extension of lease by ten years. The claim of the appellants that there was extension of lease by ten years is baseless and unacceptable. Ex.D4 shows that the firm was reconstituted on 24.5.1995 for the remaining 56 period five years. It is clear, there was no extension of lease as contended by the appellants/defendants.
74. The lease deed is a registered document. Therefore, the renewal of lease can be only by a registered document. In AIR 1986 Calcutta page 403, it has been held that renewal of lease cannot be made by mere sending a letter. Based on Ex.D6, it cannot be said that there was extension of lease by ten years. There is no renewal or extension of lease. Through Ex.D4 dated 24.5.1995, the firm has been reconstituted for the remaining lease period of five years only. It indicates that the defendants were aware of the fact that the lease comes to an end by March 2000. Ex.P3 is the legal notice dated 20.12.1999 issued by the plaintiffs calling upon the defendants to deliver vacant possession on or before 13.3.2000. Ex.D12 is the reply to Ex.P3. In Ex.D12 it is stated, that there was an agreement for extension of lease by ten years and while discussing and negotiating extension with the defendants the plaintiffs 57 have issued legal notice. The defendants have called upon the plaintiffs to co-operate for the execution of formal document extending the lease by another ten years. There is nothing on record to show that the plaintiffs father or lessors ever agreed for extension of lease. The lease period has expired by 13.3.2000. The plaintiffs have asked the defendants to deliver possession. The defendants have not delivered possession. The defendants are bound to hand over vacant possession of the suit schedule property to the plaintiffs in terms of the lease deed Ex.P2.
75. It is contended by the appellants/defendants that sub-tenants are necessary parties. They cannot be evicted except by a judicial process. The decree does not bind the sub-tenants. They are not bound to deliver possession. Reliance was placed on the following decisions;
1. (2007) 1 SCC page 202.
2. (1989) 2 SCC page 505.
3. 1987 (1) SCC 712.
58
4. AIR 1964 SC page 1305.
5. ILR 1991 Kar page 1256.
6. (2004) 8 SCC page 706.
7. (2002) 2 SCC page 656.
76. The respondents 1 to 4 i.e., the plaintiffs contend that sub-tenants are not necessary parties. There is valid termination of lease. It is not necessary to join the sub-tenants as parties. Reliance was placed on the following decisions;
1. AIR 1964 SC page 1889.
2. 1988 (3) SCC page 44.
3. 2004 (8) SCC page 706.
4. AIR 2004 SC page 4377.
77. I do not find any merit in the contention of the learned counsel for the appellants/defendants. It is clear from the terms of the lease-deed that the lease was for a period of 32 years. It has expired on 13.3.2000. The lease 59 deed makes it very clear that the lessee cannot sub-lease any portion of the property beyond the period of lease i.e., 32 years. The lessee alone is answerable to the lessors during the entire period of lease. In AIR 2004 SC page 4377, AIR 1964 SC page 1889, (1988) 3 SCC page 44 and (2004) 8 SCC page 706, the Hon'ble Supreme Court has held that the sub-tenants are not necessary parties. In (2004) 8 SCC page 706, the three Judge bench of the Supreme Court has observed as follows at paras 27 and 28
27. In Importers and Manufactures Ltd., v Pheroze Framroze Taraporewala this Court held that in a suit for possession by a landlord against a tenant, the sub-tenant is merely a proper party and not a necessary party.
28. In Rupchand Gupta v. Raghuvanshi (P) Ltd. an ex parte decree was passed in favour of the landlord and against the tenant. An application for setting aside the decree was made by the sub-tenant by invoking the provisions of Order 9 Rule 13 of the Code of Civil 60 Procedure, 1908, inter alia contending that the decree was collusive inasmuch as the sub-tenant was not joined as the party-defendant. The decree was, therefore, liable to be set aside. Repelling the contention, this Court observed:
(SCR p.764) "(I)t is quite clear that the law does not require that the sub-lessee need be made a party. It has been rightly pointed out by the High Court that in all cases where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not implead the sub-lessee as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub-lessee. This may act harshly on the sub-lessee; but this is a position well understood by him when he took the sub-
lease. The law allows this and so the omission cannot be said to be an improper act."
61
78. It is clear from the terms of the lease-deed, the lessee cannot sub-lease the property beyond the period of lease. The lease period has expired. There is valid termination of lease. The decree binds the sub-tenants also. Therefore, the sub-tenants are not necessary parties to the proceedings. The decisions relied upon by the appellants will not help them in anyway, in view of the larger bench decision of the Hon'ble Supreme Court in (2004) 8 SCC page 706 and the fact situation of this case.
79. It is also contended by the defendants that they have built on the land leased to them. The khatha stands in the name of the first defendant. By virtue of dual ownership, if the defendants have let out the premises it does not amount to sub-letting. Reliance was placed on the decisions reported in ILR 2012 Kar page 5474, AIR 1984 NOC page 274 (Kar), 1977 (1) KLJ page 270. 62
80. It is clear from the terms of the lease-deed that the lease was for a period of 32 years. It is agreed that the defendants shall put up the construction and thereafter, after the expiry of 32 years, the defendants shall hand over possession of the structures, fittings, fixtures etc., The defendants shall not sub-lease any portion of the premises beyond the lease period of 32 years. Therefore, the defendants cannot contend that they are the owners by virtue of dual ownership and they have let out premises and it does not amount to sub-letting. By the terms of the lease-deed, the defendants are bound to hand over possession of the structures, fittings, fixtures etc., in the suit schedule property after the expiry of 32 years. The decisions relied upon by the appellants/defendants will not help them in any way in the fact situation of this case.
81. It is contended by the appellants/defendants that the suit is not properly valued and proper court fee is not paid. There is no specific plea or issue regarding court 63 fee. It is only in the appeal the appellants are making this submission and it cannot be permitted.
82. The learned counsel for the appellant contended that wills are not produced and therefore, adverse inference has to be drawn. The claim is not based on any will. There is no reference to any will in the pleadings. Therefore, there is no merit in the contention and accordingly, it is rejected.
83. It was contended that the appellants/defendants have put up more construction than what was agreed and no relief has been granted. It is clear from the terms of lease deed that the appellants/defendants have agreed to put up construction of not less than 40,000/- sq. ft. The maximum is not fixed. It is agreed that after the expiry of the lease period the lessees shall hand over possession of the structures, fittings, fixtures etc., The lessors from the date of handing over possession shall be absolutely entitled 64 to all the buildings, fittings, fixtures and improvements effected by the lessees without paying any compensation towards the costs. Therefore, there is no merit in the contention that no relief has been granted for excess of construction put up by defendants and accordingly, it is rejected.
84. The appellants/defendants are bound to deliver possession of structures, fittings, fixtures etc., in the schedule property to the plaintiffs in terms of the lease deed Ex.P2. Therefore, the plaintiffs are entitled for possession of the suit schedule property. Point No.3 answered accordingly.
POINT No.4:
85. The appellant in RFA.No.1308/2006 is not a party to the suit. The appellant contends that the appellant was a tenant since 1942. On determination of the lease, the appellant becomes the tenant under the plaintiffs. The 65 appellant cannot be thrown without making it a party. It is difficult to accept this contention. The tenancy has been attorned in favour of the first defendant. The appellant has become tenant under the first defendant. The decree passed in O.S.No.1848/2000 binds the appellant also. There is no merit in the contention that the appellant becomes tenant under plaintiffs on determination of the lease. In view of the attornment of tenancy, the appellant has become tenant under the DLN Enterprises. Therefore, the appellant is a sub-lessee. The Hon'ble Supreme Court in AIR 1964 SC page 1889, (1988) 3 SCC page 44 and (2004) 8 page 706 has held that sub-lessee is not a necessary party. The decree passed against tenant binds the sub-tenant also. Therefore, the decree passed in O.S.No.1848/2000 binds the appellant also. The appellant was aware of the proceedings and has not impleaded itself as a party. The appellant being a sub-lessee is not a necessary party. The decree passed in O.S.No.1848/2000 66 binds the appellant also. Therefore, the appeal in RFA.No.1308/2008 is liable to be dismissed. Point No.4 answered accordingly.
POINT No.5:
86. The Trial Court on proper consideration of the material on record has rightly decreed the suit. The lease has expired on 13.3.2000. There was no extension of lease as contended by the appellants/defendants. The defendants are bound to vacate and hand over vacant possession of the suit schedule property to the respondents/plaintiffs. Therefore, the impugned judgment and decree does not call for interference. There is no merit in these appeals and therefore, they are liable to be dismissed.
67
Accordingly, RFA.No.596/2008 and RFA.No.1308/2008 are hereby dismissed. The parties to bear their own costs in the appeal.
Sd/-
JUDGE Bss.