Bangalore District Court
B A Madhu vs R Subash on 31 January, 2024
C.R.P.67] Government of Karnataka
Form No.9
(Civil) Title Sheet for
Judgement in
Suits
KABC020122242017
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF SMALL CAUSES, (SCCH-16)
AT BENGALURU
Present: Sri. Ganapati Bhat,
B.Sc., LL.B. (Spl.). L.L.M.
X Addl. Judge, Court of Small Causes
Bengaluru.
Date: on this the 31st January 2024
S.C. No.1788/2017
Plaintif Sri B.A. Madhu,
S/o D.S. Anjaneyalu,
Aged about 60 years,
Residing at No.S-12A,
Palace Garden Apartment,
Palace Cross Road,
Bengaluru - 560 020.
(Sri M.N. Balakrishna, Advocate)
Vs.
Defendants 1. Sri R. Subash,
S/o Rangappa,
Aged about 36 years,
Residing at No.22,
1st Cross, S.C. Road,
Bengaluru - 560 009.
(Sri S. Venugopala, Advocate)
2 (SCCH16) S.C. 1788/2017
2. Sri V. Mukesh,
S/o Vasudeva,
Aged about 36 years,
Residing at No.43,
2nd Cross, 1st Stage,
Okalipuram, Bengaluru - 560 021.
(Exparte)
3. Sri D. Rajagopal,
S/o Late Dasappa,
Aged about 48 years,
Residing at No.51,
1st Main Road,
Sheshadripuram,
Bengaluru - 560 020.
(Sri S. Venugopala, Advocate)
4. Sri D.Cheluvaraj,
S/o Dasegowda,
Aged about 56 years,
Residing at No.84,
South End road,
Basavanagudi,
Bengaluru - 560 004.
(Sri S. Venugopala, Advocate)
Date of Institution of suit: : 24-11-2017
Nature of the suit: : Ejectment
Date of commencement :
of recording of the 03-04-2018
evidence
The date of : 31-01-2024
pronouncement of
Judgment
Total duration : Year/s Month/s Day/s
06 02 07
3 (SCCH16) S.C. 1788/2017
JUDGMENT
This suit is filed by the plaintif against the defendants seeking the relief of ejectment directing the defendants to quit, vacate and handover the vacant possession of the suit scheduled property and directing the defendants to pay sum of Rs.36,000/- as arrears of rent.
2. The facts in brief stated in the plaint are as under:
The plaintif is the owner of property bearing No.22, first floor portion, PID No.27-5-22, 4th Cross, 5th Main, Gandhinagar, Bengaluru, measuring east to west 45 feet and north to south 70 feet with an area of 3150 sq. feet which is more fully described in the schedule of the property. The plaintif has inducted the defendant as lessee in respect of suit property on a monthly rent of Rs.1,000/- for a period of 3 years with efect from 01-05-2010 by entering into the registered deed dated 28-05-2010 vide registered lease agreement. The plaintif has received sum of 4 (SCCH16) S.C. 1788/2017 Rs.24,00,000/- as interest free advance deposit amount and fixed the nominal rent of Rs.1,000/- per month. The original registered lease deed was taken by the defendants and Xerox copies of the registered deed was given to the plaintif. Therefore, he has produced the certified copy of the registered lease deed. Under the registered lease deed, the defendants were agreed to pay the monthly rents regularly. It was agreed that in case of default of rent for 3 consecutive months, the plaintif is entitled to determine and terminate the lease by giving 15 days notice and to take the possession of the suit schedule property.
3. The defendant have agreed to pay the electricity bills, water charges, etc., and other Taxes. The defendants have jointly occupied the suit premise on 01-05-2010. There was money transactions between the third defendant and plaintif during the year 2009. The plaintif has borrowed a sum of Rs.25,00,000/- from the third 5 (SCCH16) S.C. 1788/2017 defendant for specific business purpose and had executed 2 blank promissory notes for sum of Rs.10,00,000/- each. He has also issued 3 blank cheques bearing No.937318, 939223 and 939224 for sum of Rs.5,00,000/-, Rs.10,00,000/- and Rs.10,00,000/-, respectively, agreeing to pay interest at 1.5% per month. The plaintif has paid interest till May 2010. In the mid week of April 2010, the defendant No.3 came along with defendants No.1, 2 and 4 and have proposed to take the scheduled premise on lease by ofering to pay Rs.24,00,000/-, out of Rs.25,00,000/- which was paid by the third defendant as loan to the plaintif, as advance deposit amount and agreed to pay rent of Rs.1,000/- per month for a period of 3 years. The plaintif has accepted the ofer. He has executed a registered lease deed and also refunded Rs.1,00,000/- to the defendant No.3.
4. The third defendant has not returned 3 cheques and pro-notes. On the very next day the 6 (SCCH16) S.C. 1788/2017 defendants have approached the plaintif and requested him to execute an agreement of sale for the reason that advance security deposit amount was paid by third defendant in the year 2009 as loan and lease agreement came to be entered in the year 2010 without paying the security deposit amount. Therefore, there is a problem for the defendant No.3 in paying the Income Tax returns. Hence, they have requested the plaintif to execute nominal agreement of sale deed. The plaintif gas executed the nominal agreement of sale in favour of the defendants. Thereafter, the defendants have not paid the agreed rent amount. When the demand is made by the plaintif, the defendants have given evasive reply that the rental amount can be adjusted out of the security deposit amount. They have prolonged to pay the rent. The plaintif has demanded the arrears of rent and to vacate the premise by receiving the balance security deposit amount, after deducting the arrears of rent. The defendants have filed a suit for 7 (SCCH16) S.C. 1788/2017 specific performance of contract which has numbered as O.S. No.3962/2015 pending on the file of Additional City Civil Judge at Bengaluru i.e., CCH No.27 based on the nominal sale agreement obtained by them from the plaintif without paying any consideration. The plaintif has decided to terminate the tenancy of the defendants. The defendants have to pay the arrears of rent since 01- 09-2010 and an amount of Rs.90,000/- as arrears of rent is due from the defendants. The defendants are not ready to vacate the suit premise inspite of repeated request to vacate the same. The plaintif has issued legal notice on 26-09-2017 and the defendants have replied to the said notice on 23-10- 2017. Thereafter, they have started to occupy the suit premise, unauthorizedly. Hence, they are liable to pay the damages at the rate of Rs.75/- per square feet till surrender of the schedule property. The defendants have not quit, vacate and handover the 8 (SCCH16) S.C. 1788/2017 possession. Hence, the plaintif has filed the present suit.
5. In response to the summons, the defendants No.1, 3 and 4 have appeared through their counsel and they have filed the written statement. Inspite of service of summons, the defendant No.2 remained absent,hence, he was placed as ex-parte.
The facts in brief stated in the written statement of defendants No.1, 3 and 4 are as follows :
They have denied the allegations made in the plaint. They have admitted the ownership of the plaintif over the suit property. They have further admitted the lease agreement dated 28-05-2010.
They have further stated that the plaintif has agreed to sell the entire first floor of the premise bearing No.22 BID No.27-5-2022 in 4th Cross, 5th Main Road, Gandhinagar together with staircase, right to ingress and egress and other facilities to the suit property including water and electric supply measuring east- 9 (SCCH16) S.C. 1788/2017 west 45 feet and north-south 70 feet with an area of 3150 square feet of which ½ undivided share 1757 square feet together with 650 square feet building on the first floor and passage bounded by east house bearing No.3, west house bearing No.5, north 4 th cross road, south premise No.7 for agreed consideration of Rs.55,00,000/-. He has further agreed that defendants have to pay a sum of Rs.55,00,000/- towards sale consideration. It is further agreed that interest free deposit of Rs.24,00,000/- which was paid by the defendant to the plaintif has to be adjusted towards the sale consideration and remaining balance to be paid by the each of the defendants to the extent of Rs.6,50,000/-. The defendants have paid Rs.50,00,000/- to the plaintif. It was agreed that the plaintif has to repay the said amount within 36 months from the date of agreement of sale and only by paying the said amount he can cancel the said agreement of sale. The plaintif did not pay the said 10 (SCCH16) S.C. 1788/2017 amount as agreed. The defendants have approached the plaintif to execute the sale deed by receiving remaining amount of Rs.5,00,000/-. They have got issued the legal notice dated 19-03-2015 to the plaintif calling upon him to execute the sale deed in their favour.
The plaintif has neglected and failed to comply the notice. Hence, they have filed a suit in O.S. No.3962/2015 on the file of Additional City Civil Judge, CCH-27, Bengaluru for the specific performance of the said agreement of sale. They have further stated that if the plaintif failed to repay Rs.50,00,000/- and agreement of sale is cancelled, then defendants are not continued as lessees and they are entitled to specific performance of contract by paying the balance consideration amount. The suit filed by the defendant is pending for adjudication. In the said suit, the court has passed temporary injunction restraining the plaintif from alienating the suit property. The said suit is pending 11 (SCCH16) S.C. 1788/2017 for adjudication. The plaintif has not extended the period of lease. The plaintif and defendant are not the lesser and lessee as per the Clause 5 of the agreement of sale. They have further stated that after agreement of sale, the lesser and lessee relationship between the plaintif and defendants became ended. They have denied that the agreement of sale is not nominal and ostensible. They have denied the fact of executing the 3 cheques and 2 pro-notes. They have further denied the alleged loan transaction between defendant No.3 and plaintif. They have stated that they have ofered to purchase the suit property by making highest bid and they have paid the consideration amount. Now, the plaintif has come up with cock and bull story. They have further stated that there is no due of arrears of rent. They have further stated that after agreement of sale dated 25-09-2010, the relationship of the plaintif and defendant became ended. They have further stated that the plaintif is liable to 12 (SCCH16) S.C. 1788/2017 execute the sale deed in favour of the defendants in terms of agreement of sale. They have further stated that there is no cause of action for this suit and the alleged cause of action is imaginary. Hence, they have prayed to dismiss the suit.
6. After considering the materials available on record, the following points wound arise for my consideration as follows:
POINTS FOR CONSIDERATION
1. Whether the plaintif proves that the defendants are tenants under him as per the register lease deed dated 28-05-
2010 and they have agreed to pay rent of Rs.1000/- per month and paid security deposit of Rs.24,00,000/- and there exist jural relationship of landlord and tenant between the plaintif and defendant?
2. Whether the defendants proves that the jural relationship between them and plaintif was ceased to exists due to subsequent agreement of sale dated 29- 5-2010?
3. Whether the plaintif proves that the tenancy between the plaintif and defendant is validly terminated?
4. Whether the plaintif proves that it is entitled to the vacant possession of the suit premises from the defendant?
13 (SCCH16) S.C. 1788/2017
5. Whether the plaintif proves that it is entitled to the damages as sought for?
6. What order or decree?
7. In support of his case, the plaintif society entered into the witness box and examined as PW1 and got marked 16 documents as Ex.P1 to Ex.P16. On the other hand, the defendant No.3 has entered into the witness box and examined as DW1 and got marked 7 documents.
8. Heard the arguments of the learned advocate for the plaintif and the learned advocate for the defendants. The learned counsel for the plaintif has argued that the plaintif is the landlord of the suit property and defendants are the tenants under registered lease deed dated 28-5-2010. He has further argued that the alleged agreement of sale dated 28-05-2010 is a nominal and sham one. He has further argued that the Hon'ble City Civil Court (CCH-
27) in O.S. No.3962/2015 has held that the agreement of sale is not intended for selling the suit 14 (SCCH16) S.C. 1788/2017 premise. He has further argued that the lease period is already completed. He has further argued that he has issued the legal notice calling the defendants to quit the possession over the suit property and to handover the vacant possession of the suit property. He has further argued that the defendants have neither handover the vacant possession nor paid the rent. Hence, he has prayed to decree the suit.
9. Per contra the learned counsel for the defendants has argued that after registered lease deed, the plaintif has executed agreement of sale dated 28-05-2010. The said agreement of sale was acted upon and the defendants have paid the part consideration amount on the basis of it. He has further argued that the landlord and tenant relationship between the plaintif and defendants ceased to exists after execution of the agreement of sale. Hence, there is no revival of the relationship of landlord and tenant between the plaintif and defendants. He has further argued that the 15 (SCCH16) S.C. 1788/2017 defendants are in the possession of the suit property as purchasers of the suit property not as tenants. He has further argued that since there is no landlord and tenant relationship between the plaintif and defendants, hence the suit for ejectment of such suit property is not maintainable before this court. He has relied upon the following judgments;
1) In R. Kanthimathi and other vs. Mrs. Beatrice Xavier, AIR 2003 SC 4149.
2) Shri Kathal Sab vs. Shri Ponnappa and others, RSA No.100696/2014 dated 29-10- 2014, Hon'ble High Court of Karnataka. He has prayed to dismiss the suit.
10. After perusing the material available on record and hearing the arguments, the findings on the points are as under:
Point No.1 : In the Affirmative Point No.2 : In the Negative Point No.3 : In the Affirmative Point No.4 : In the Affirmative Point No.5 : In the Negative Point No.6 : As per final order for the following:
16 (SCCH16) S.C. 1788/2017 REASONS
11. POINT No.1 AND 2 : Since these points are interlinked, they are discussed together to avoid repetition facts. It is the case of the plaintif that plaintif is the owner of the suit premises and on 28- 05-2010 he has entered into a registered lease deed with efect from 01-05-2010. It is further contended by the plaintif that he has received an amount of Rs.24,00,000/- towards advance security deposit and fixed nominal rent of Rs.1,000/- per month by executing the said lease deed. It is further contended by the plaintif that thereafter, the defendants have jointly and punctually paid the rent amount. It is the further case of the plaintif that defendants have agreed to the condition that in case they have not paid rent of 3 consecutive months, then plaintif is entitled to terminate the lease by giving 15 days notice and to take the possession of the suit premises. It is further contended by the plaintif that he had some money transaction with the defendant 17 (SCCH16) S.C. 1788/2017 No.3. It is stated by the plaintif that he has borrowed a sum of Rs.25,00,000/- from the defendant No.3. It is further contended by the plaintif that in the mid week of April 2010, the defendant No.3 along with other defendants approached and proposed for taking the suit premises for lease amount of Rs.24,00,000/- and Rs.1,000/- monthly rent adjusting the Rs.25,00,000/- amount received by him. It is the further case of the plaintif that both parties have agreed to that condition and arrived to the lease agreement duly registered in the office of Sub Registrar. It is further contended by the plaintif that on the next day, defendants again approached him and requested him to execute a nominal agreement of sale for security deposit amount purely for the reason of Income Tax purposes and he has executed the agreement of sale accordingly. It is further stated that later, the defendants have changed their stand and filed the suit for specific performance on the basis of said nominal agreement of sale, but the City 18 (SCCH16) S.C. 1788/2017 Civil Court granted only refund of earnest money. It is further contention of the plaintif that he intended to recover the possession of the suit premise from the defendants.
12. The main defence of the defendants is that the plaintif has executed the agreement of sale dated 29-05-2010 after execution of lease deed dated 28-05-2010. They have further contended that the agreement of sale is not nominal and it is intended for purchase of the suit property and other property for consideration of Rs.55,00,000/-. The amount of advanced amount paid in sale deed was adjusted with the sale consideration amount and the balance of Rs.26,00,000/- was paid by the defendants equally contributing Rs.6,50,000/- each. It is further stated by the defendants that they are ready and willing to pay balance sale consideration of Rs.5,00,000/-. They have further contended that the agreement of sale was acted upon and they have started to be reside in the suit property as purchaser 19 (SCCH16) S.C. 1788/2017 under the agreement of sale. They have further stated that they have filed the Original Suit No.3962/2015 based on the said agreement of sale seeking specific performance of the contract. It is further contention of the defendants that they are no more tenants and they are purchasers of the suit property. They have further stated that the agreement of sale is not held as null and void by the City Civil Court in Original Suit but it has ordered to return the earnest money under the agreement of sale by refusing the relief of specific performance of contract. Therefore, the main defence of the defendants is that there is no landlord and tenant relationship between the plaintif and themselves. They have resisted the suit on the ground of jural relationship of landlord and tenant between themselves and the plaintif.
13. In order to prove his case, the plaintif has produced as many as 16 documents. They are marked as Ex.P1 to Ex.P16. Out of the said 20 (SCCH16) S.C. 1788/2017 documents, Ex.P1 is the office copy of the legal notice, Ex.P2 to Ex.P5 are the courier receipts, Ex.P6 to Ex.P9 are the postal receipts, Ex.P10 is the reply notice, Ex.P11 is the postal envelope, Ex.P12 is the certified copy of the plaint of O.S. No.3962/2015, Ex.P13 is the certified copy of rent agreement, Ex.P14 is the certified copy of chief and cross- examination in O.S. No.3962/2015, Ex.P15 and Ex.P16 are the certified copy of order sheet and judgment in O.S. No.3962/2015.
14. The execution of the lease deed is admitted by the both parties. It is a registered lease deed between the plaintif and defendants. The receipt of the rent amount and lease amount is also admitted. The defendants did not dispute the entry of the suit premise under the lease deed. Ex.D1 is the document confronted to the PW1 in his cross- examination. PW1 is none other than the plaintif of this case and got examined as PW1 in this case. He has re-iterated the contents of the plaint in his 21 (SCCH16) S.C. 1788/2017 examination in chief affidavit. Ex.D1 is the title deed of the plaintif which is marked on confrontation. In the cross-examination, Advocate for defendants has suggested that the plaintif has borrowed the loan amount from defendant No.3 and as a surety to the said loan, he had mortgaged the suit property to the defendant No.3. The both parties have admitted the execution of lease deed and the relationship of the tenant and landlord between plaintif and defendants. Ex.D2 is the deed of mortgage and Ex.D3 is the deed of discharge which are entered between plaintif and defendants and same were confronted to PW1 and marked on confrontation. These mortgage deed and discharge deed are entered between plaintif and defendants. This transaction would substantiate the contention of the plaintif that the property was mortgaged and loan transactions were between plaintif and defendant No.3.
22 (SCCH16) S.C. 1788/2017
15. The parties have admitted the terms of the lease deed and its execution on 28-05-2010. The learned counsel for the defendants cross-examined PW.1. The relevant portion of the cross-examination reads as follows:
"It is true that in the year 2010 I agreed to let out the suit premises to the 3rd defendant for a period of 36 months. Witness volunteers that at his request only the suit property was let out. It is false to suggest that, I myself approached this defendant to let out the suit property as I was in need of the money. It is false to suggest that when I ofered to let out the suit property, the 3rd defendant told me that he alone cannot take this property on lease as he did not have sufficient amount. It is false to suggest that then I told this defendant that I would return the lease amount within 36 months and therefore, you could take the suit property for lease involving other persons. It is false to suggest that I had assured this defendant that in case I failed to return the lease amount within 36 months, I would sell the suit property to you It is false to suggest that thereafter, all the 4 defendants approached me in the 2nd week of May 2010. It is true to suggest that each defendant paid Rs.6,00,000/- amounting to Rs.24,00,000/- to me. It is true that on 28.05.2010 I executed Registered Lease Deed in favour of the defendant No.1 to 4".
23 (SCCH16) S.C. 1788/2017
16. These suggestions to the PW1 would reveal that there is registered lease deed between the Plaintif and the defendants. The execution of the lease deed and acting upon the lease deed is admitted by the parties. The copy of the said lease deed is marked as Ex.P13. It is pertinent to note that the date of the registered lease deed i.e., 28-05- 2010. In the further cross-examination, the agreement of sale dated 29-05-2010 was confronted to the PW1 and same was marked as Ex.D4 through confrontation.
17. It is relevant to refer the further cross- examination of the PW.1 reads as follows:
"It is true that as per Ex.D2 I has obtained Rs.10,00,000/- from D. Rajagopal. It is false to suggest that the contents of paragraph No.6 of my affidavit are all false. It is false to suggest that I had not obtained Rs.25,00,000/- from Rajagopal during 2009 and had given three blank cheques in his favour to repay this amount. It is false to suggest that I had not paid interest at the rate of 1.5% till May-2010. It is false to suggest that except the mortgage transaction, I had not entered into any other money transaction with Rajagopal It is false to suggest that as Rs.10,00,000/- 24 (SCCH16) S.C. 1788/2017 obtained under mortgage deed was not sufficient to me, I entered into lease agreement dated 28-05-2010 with the defendants. It is false to suggest that on the next day of lease agreement, I entered into sale agreement wit the defendants to sell the suit property in their favour for a sum of Rs.55,00,000/-. It is false to suggest that as per sale agreement, the defendants have paid a sum of Rs.6,50,000/- each totally amounting to Rs.26,00,000/- to me. It is false to suggest that I had agreed to repay Rs.50,00,000/- to the defendants within 36 months. It is false to suggest that I had agreed to execute registered sale deed, if Rs.50,00,000/- was not repaid by me within 36 months after receiving balance of Rs.5,00,000/-.
It is false to suggest that the defendants are in possession of the suit property as per clause 5 of Ex.D4, and not as tenants. It is false to suggest that the defendants were regular in paying the rents and therefore, I did not take any action as per clause 3 (ii) and 4 (ii) of lease agreement. It is false to suggest that since the defendants are in possession of the suit property as prospective purchasers and not as tenants, I cannot seek their eviction. It is false to suggest that the defendants are not liable to pay any rent. It is false to suggest that I have collected all the rents from them".
In this part of cross-examination the learned counsel for the defendants has cross-examined the plaintif on the fact of the transaction of 25 (SCCH16) S.C. 1788/2017 advancement of Rs.10,00,000/- between the plaintif and defendant No.3 which is stated by the plaintif in his plaint. PW1 has denied the suggestion of execution of the agreement of sale for consideration of Rs.50,00,000/-. Ex.P13 is the copy of the registered lease deed between plaintif and defendants. The said lease deed is for the period of 3 years from 28- 05-2010. The said deed was registered in the sub- registrar office on the same day. In Ex.P13, it is stated that the defendants came into the possession of the suit property as tenants. Therefore, from these documents and oral testimony it is clear that on 28- 05-2010, the plaintif has executed registered lease deed in favour of the defendants.
18. The defendant No.1 entered into the witness box and got examined as DW1. He has re-iterated the contents of the written statement in his examination in chief affidavit. He has admitted in the cross- examination that the original lease deed is with him. He has further admitted that they obtained the 26 (SCCH16) S.C. 1788/2017 possession of the suit property on the basis of the said registered lease deed. He has further admitted that the said lease deed was acted upon by the parties. Therefore, from the documentary and oral evidence and admissions of the parties, it is clear that the plaintif has executed lease deed in favour of defendants. It shows their relationship as landlord and tenant as on 28-05-2010.
19. The main defence of the defendants is that the plaintif has executed an agreement of sale dated 29-05-2010 agreeing to sell the property to the defendants for sale consideration of Rs.55,00,000/-. They have stated that the said agreement of sale pertains to the sale of the suit premise and other property. The defendants have produced and got marked the said agreement of sale dated 29-05-2010 through confrontation.
20. From Ex.D4, it is clear that the agreement of sale is an agreement of sale without possession. The contention of the plaintif in this regard is that the 27 (SCCH16) S.C. 1788/2017 said agreement of sale is not intended for selling the suit property and it is only a document for Income Tax purposes of the defendants. The defendants have stated that the said document is an agreement of sale and same is executed for selling the suit property for valuable consideration to them. It is pertinent to note that Ex.D4 is alleged to have been executed 1 day after the execution of registered lease deed. As per the lease deed, the possession was handed over to the defendants and therefore, the possession of the defendants after execution of lease deed became possession of a tenant. It is the contention of the defendants that if the agreement of sale is executed after the lease deed and the seller has accepted the sale consideration as per the agreement of sale, then the relationship under the lease deed would be ceased to exists and they became seller and purchaser. They have further stated that the earlier relationship of the landlord and 28 (SCCH16) S.C. 1788/2017 tenant cannot be revived, even on cancellation of agreement of sale.
21. In this connection, the learned counsel for the defendants has relied upon by the judgment of Hon'ble Supreme Court of India reported 1) in AIR 2003 SC 4149 and 2) the Judgment of Hon'ble High Court of Karnataka in RSA No.100696/2014.
22. In the first ruling relied upon by the advocate for the defendants, it is held as follows:
This decision clearly spells out that once there is agreement of sale between a landlord and a tenant, the old relationship as such comes to an end. It goes on to record that even after the cancellation of such agreement of sale the status of tenant is not restored as such. In other words, on the date of execution of the aforesaid agreement of sale their status as that of landlord and tenant changed into a new status as that of a purchaser and a seller.
8. Thus within this legal premises, the submission by learned counsel for the respondent of revival of their old relationship of landlord and tenant when she repudiates this agreement by sending back to the 29 (SCCH16) S.C. 1788/2017 tenant Rs.20,000/- through a cheque, (which according to the appellant was not encashed) cannot be accepted.
23. In this finding, it is held that when the agreement of sale is executed between the landlord and tenant, the old relationship of the landlord and tenant would be ended and the new relationship of seller and purchaser would be started. It is further held in the said ruling that ones the relationship of landlord and tenant ceased to exists, then same cannot be revived. In the second ruling relied by the advocate for defendants, the Hon'ble High Court of Karnataka has held in para No.9 as follows:
9. The contention re. jurisdiction urged in this appeal was also urged before the first Appellate Court and it has been considered in detail by the first Appellate Court in the light of the Full Bench decision of this Court in Abdul Wajid (ILR 2011 KAR 229). It is relevant to refer to the following reasoning of the first Appellate Court re.jurisdiction:
" 18. ............................... In view of the principle laid down in 2011(4) KLJ 414(FB) (Abdul Wajid vs. A.S.Onkarappa), normally the case of this nature comes within the jurisdiction of Small Cause Court. But the defendants have denied the 30 (SCCH16) S.C. 1788/2017 relationship of landlord and tenant and have pleaded the oral agreement of sale and even reply notice demanded for execution of the sale deed. The denial of the relationship is not a mere denial. The learned counsel for the appellant has also relied on the above referred judgment 2011(4) KLJ 414 (FB) and has contended that the suit of the plaintif comes within the jurisdiction of Small Cause court. In para 98 of the above said judgment it is held as under:
"There is one other aspect which requires to be clarified. In couple of decisions it has been observed that though the general principle is that the jurisdiction of the court shall be determined by the averment in the plaint, Article 4 of KSCC Act makes a departure from this general principle and the jurisdiction of the Court of Small Causes to try the suit for ejectment is made dependent on the contentions raised in the written statement and at the Will of the defendant and in the written statement if the defendant were to deny the relationship of landlord and tenant, denies the title or take any other plea which gives raise to issue other than the one mentioned in clause (c) of Article 4, the Small Causes Court has to return the plaint for presentation before the Civil Court for adjudication. No doubt, as per clause (c) of Article 4 the only substantial issue to be considered is whether the lease has been determined by efflux of time or has 31 (SCCH16) S.C. 1788/2017 been determined by a notice, or the permission to occupy has been withdrawn. If the right of a plaintif and the relief claimed by him in a Court of Small Causes depend upon the proof or disproof of title to immovable property or other title in the light of the contentions raised by the defendant in his written statement, certainly the court acting under Section 16 of the KSCC Act has to order return of plaint for presentation to proper Court. However, mere denial of jural relationship of landlord and tenant by the defendant in his written statement though the lease is evidenced by document, by itself cannot be a ground to hold that the Court of Small Causes has no jurisdiction. In such event, as an incidental question the Court has to find out whether the property had been let under lease or permitted to be occupied by a written instrument or orally as stated in clause (a) and for that purpose the plaintif has to be aforded opportunity to place evidence."
19. As per the principle laid down in the above decision in general, the jurisdiction of the court shall be determined by considering the averment in the plaint, but Article 4 of Karnataka Small Cause Courts Act makes a departure from this general principle and the jurisdiction of the court the Small Cause to try the suit for ejectment made depending on the contention raised in the written statement and at the will of the defendant. 32 (SCCH16) S.C. 1788/2017 If the defendants have denied the relationship of landlord and tenant and denied the title or take any other plea, which plea give rise the issue, other than one mentioned in Clause (c) Article 4 of Small Cause Court, the Small Cause court has to return the plaint for presentation before the Civil court for adjudication. Here, in this case, the lease alleged by the plaintif is oral lease. The defendant has denied the relationship of landlord and tenant. Though denial of the title of the plaintif is mere denial for the sake of denial, considering the fact that the defendants admit that once they were put in possession as a tenant under the father of the plaintifs, the denial of the plaintifs title is untenable. But denial of the relationship of landlord and tenant by the defendants is not a mere denial. They have set up the plea that they are in possession of the suit property on the basis of the oral agreement of sale. The oral agreement of sale is recognized under law. When the defendant has taken such plea of oral agreement of sale, that plea should have been adjudicated by the civil court, adjudication of such a plea is beyond the jurisdiction of Small Cause Court.
24. From the ratio laid down in this case and the referred cases therein, it is clear that when there is no landlord and tenant relationship, then the suit for ejectment before the Small Causes Court is not 33 (SCCH16) S.C. 1788/2017 maintainable. The defendants have not shown any defective title or no title of the plaintif. They are not entitled to dispute the same in this suit as they have entered into the possession of the suit property as lessees. In this case, the defendants have not disputed the title of the plaintif. Their contention is that after execution of the agreement of sale their relationship of landlord and tenants ceased to exists. In this case, the City Civil Court has already decided the issue relating to agreement of sale. It has held that agreement of sale is not intended to sell the property. According to section 116 of the Indian Evidence Act, the tenant has no authority to deny the title of his landlord at the beginning of the tenancy. This rule of estoppel clearly prohibits to dispute the title of landlord at the beginning of the tenancy. According to this rule of Estoppel, the defendant is debarred to deny the title of the plaintif. 34 (SCCH16) S.C. 1788/2017
25. In S. Thangappan v. P. Padmavathy ruling reported in AIR 1999 SC 3584 Hon'ble Supreme Court has held as follows:
"The rule of estoppel embodied under Section 116 of the Evidence Act is that, a tenant who has been let into possession cannot deny his landlords title, however defective it may be. This section puts an embargo on a tenant of an immovable property, during the continuance of his tenancy to deny the title of his landlord at the beginning of his tenancy. The significant words under it are "at the beginning of the tenancy." "This is indicative of the sphere of the operation of this section. So a tenant once inducted as a tenant by a landlord, later he cannot deny his landlord's title. Thus, this principle of estoppel debars a tenant from denying the title of his landlord from the beginning of his tenancy. However defective the title of such landlord, could (sic may) be, such tenant cannot deny his title."
26. In Ram Parischa vs Jagannath ruling reported in (1976)4 SCC 184 Hon'ble Supreme Court has held as follows:-
"The relation between the parties being that of landlord and tenant, only the landlord could terminate the tenancy and institute the suit for 35 (SCCH16) S.C. 1788/2017 eviction. The tenant in such a suit is estopped from questioning the title of the landlord under Section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a suit between landlord and tenant the question of title to the leased property is irrelevant. It is, therefore, inconceivable to throw out the suit on account of non-pleading of other co- owners as such."
27. As discussed above the Plaintif has established the relationship of landlord and tenant as per the registered lease deed. Hence, ratio laid down in this ruling is applicable to the case on hand.
28. Now the point for consideration is whether the alleged agreement of sale was really intended to sell the property and if so, whether the agreement of sale ceases the relationship of plaintif and defendants as landlord and tenant. Admittedly, the Defendants herein has filed the original suit bearing No.3962/2015 before the City Civil Court, Bengaluru. The said suit was filed by the defendants seeking the relief of specific performance of the 36 (SCCH16) S.C. 1788/2017 contract/agreement of sale which is alleged to have been executed by the plaintif in favour of the defendants agreeing to sell the suit premises and other property for a sale consideration of Rs.55,00,000/- on 29-05-2010. The said agreement of sale is marked as Ex.D2 in this suit. The Hon'ble CCH-27 Court after full pledged trial directed the plaintif herein, i.e., the defendant therein to refund Rs.50,00,000/- along with interest at the rate of 18% per annum from 29-05-2013 until realization. In the said suit, the plaintif herein is the defendant and defendants herein are the plaintifs. In the said judgment, the Hon'ble City Civil Court, Bengaluru has held as follows:
"20. The next question is very important, whether the Ex.P1 was with intent to sell or it is a mere a security to the loan document? If the approach of the plaintifs and the terms of the Ex.P1 documents are considered, the tenor of the agreement sensed, in all manner it has the flavor that the said document is a document executed for the security for the amount mentioned therein. And, in any sense that doesn't make intense sense that the same is solely for the purpose of the sale of the suit property. If at
37 (SCCH16) S.C. 1788/2017 all the plaintifs have intentions to purchase the same for an amount of Rs.55,00,000/-, by paying substantial amount for mere payment of Rs.5,00,000/- alone they would not have deferred the date of execution for the sale deed for a period of 36 months. And if at all, the plaintifs have intention to purchase the same, the conditions such as, if the defendant repaid the advance amount of Rs.50,00,000/- within 36 months, the agreement stands canceled would not been incorporated. And that apart, in the event of failure to pay the advance amount within 36 months, within three months from the date of expiry of 36 months, the plaintifs have to by paying Rs.5,00,000/- ought to get the sale deed, but they have issued Ex.P4 notice only after lapse of 1 year 10 months. Thus, this court has no hesitation to hold that, intention behind the execution of the Ex.P1 was for the security for the sale of the suit property. As the defendant neither paid the amount nor shown any interest, the plaintifs would wants to safe guard their interest, in initiated this suit to fire in all angle against the defendant to test their luck, as any relief does not put the plaintifs into the loosing side".
It has further held as follows :
"Thus this court is of the opinion, as this court observed that, the Ex.P1 was not really for the sale of suit property, which prompted the plaintifs not put pressure on the defendant execute the sale deed".
It has further held as follows :
"And moreover, if the averments in the Ex.P1 agreement of sale are examined
38 (SCCH16) S.C. 1788/2017 carefully, they does not give any sense of seriousness stating that, in all possibility the plaintifs were having an intention to purchase the suit property under the Ex.P1 document".
It has further held as follows :
"For the reason that, the sale transactions of the defendant was completed two years after entering into an agreement of sale. There will be a significant changes in the real estate market on everyday, even there will be a changes in the guidelines value from time to time from the government. Thus, the contention of the plaintif that the defendant was also purchased the suit property for 54 lakhs, he has agreed to sell the same for Rs.55 lakhs, even high price than he purchased, thus sale price cannot be considered as lesser than the guidance and market value. But, this cannot be accepted as valid defence on the value of the property. In fact if the contents of the Ex.P17 is perused, the defendant to purchase the suit property entered into agreement of sale dated 05-10-2006 for an amount of Rs.54,00,000/-. It means to say the Rs.54,00,000/- was the value in the year 2006. If all these aspects are considered firstly, the plaintifs fails to prove their readiness and willingness. Secondly, they fails to prove that the Ex.p1 fails to show its intensity to show that it was for the purpose of purchasing of suit property. Thus the plaintifs are not entitled for the specific performance of contract and they deserves for only for the refund of advance amount paid under Ex.P1. However, while answering to the issue No.3 this court had come to the conclusion that, the plaintifs are entitle for
39 (SCCH16) S.C. 1788/2017 the alternative relief of refund of advance amount of Rs.50,00,000/-.
28. The next question would be does the plaintifs are entitled for the interest @ 18% per annum. Admittedly, under the Ex.P1 the parties have agreed that, if the plaintif does not wish to claim the relief of specific relief of performance of contract in that event that the plaintifs have the liberty to file the suit for recovery of amount with the interest @ 18% per annum even prior to this, the defendant had availed the loan from the plaintif No.3, and was paying the interest little higher than the interest agreed under the Ex.P1. Further, the defendant had availed loan prior to execution of Ex.P1 on the conditions to pay the interest @ 24% per annum as he himself suggested he was paying 1.5% rent per annum on Rs.10,00,000/-. Moreover, the interest at 18% per annum is a contractual interest agreed by the parties. In fact the defendant had availed amount, he is the beneficiary of the same, he enjoyed the money. I do not think there is a dispute on the point that the investment in the real estate would gives more returns than n any other investment, as the value of the money gets depletes due to inflation. If that aspects are considered, the plaintifs are entitled for the refund of Rs.50,00,000/- along with interest @ 18% from 29-05-2013 to till its realization. Thus, I answer the issue No.1 in partly affirmative, issue No.2 in negative and issue No.3 in partly affirmative".
29. In these concluding paras of the judgment, the Hon'ble City Civil Court has held that the 40 (SCCH16) S.C. 1788/2017 agreement of sale i.e., Ex.D4 was not intended to sell the suit property to the defendants herein. It is stated by the said court that the defendants herein have failed to show that it was executed for the sale of the suit property. The defendants have stated that they have challenged the judgment and decree of the said court before the Hon'ble High Court of Karnataka. But, the defendants herein have not produced any documents to show that the judgment and decree of the City Civil Court was set aside by the Hon'ble High Court of Karnataka. The observation and findings of the City Civil Court in original suit between the same parties and in respect of the same suit property is binding on this court and the parties. As per second ruling relied by the advocate for defendants, the decision of the City Civil Court regarding the agreement of sale binding on the Small Causes Court. Hence, in this suit it cannot be said that the plaintif herein has agreed to sell the property by executing Ex.D4.If the agreement of sale not intended to really 41 (SCCH16) S.C. 1788/2017 sell the property, then the relationship of parties to the agreement sale cannot be said as relationship of seller and purchaser. The Hon'ble City Civil Court in the said suit has held that the relationship between plaintif and defendants as seller and purchaser under agreement of sale is not established by the defendants herein. Therefore, the first ruling of the Hon'ble Supreme Court of India reported in AIR 2003 SC 4149 is also not applicable to the case on hand as there is no valid agreement of sale creating the relationship of seller and purchaser between the plaintif and defendants. Hence, the plaintif has proved landlord and tenant relationship between the himself and defendants. Hence, I answer Point No.1 in the affirmative and Point No.2 in the Negative.
POINT NO.3 :
30. The plaintif has stated that he has issued notice to the defendants on 26-09-2017, same is served upon the defendants on 28-09-2017. The plaintif has produced the Ex.P1 to Ex.P9 to show that
42 (SCCH16) S.C. 1788/2017 he has issued the notice. Ex.P10 is the reply notice given by the defendants. Hence, the notice of the termination is served upon the defendants. The plaintif has shown that he has issued legal notice to the defendants seeking to quit possession of the suit property.
31. The lease deed was for the period of 3 years. The defendants have not produced any documents to show that the lease deed was continued thereafter. It is relevant to note that as per Section 114 of the Transfer of Property Act, the lease will be determined on various ground mentioned therein. One of the grounds mentioned therein is efflux of time. When the lease or agreement is determined due to efflux of time, then there is no necessity to issue notice as the terms of the lease would itself terminate the agreement.
32. In Raptakos Brett And Co. Ltd vs Ganesh Property ruling reported in AIR 1998 43 (SCCH16) S.C. 1788/2017 SC 3085, Hon'ble Supreme Court has held as follows:-
" So far as the law of the land is concerned, it is obviously the common law under which the erstwhile tenant on expiry of the lease has to hand over vacant possession to the erstwhile landlord. But that apart, the said obligation on the part of the erstwhile tenant is statutorily recognised by Section 108(q) read with 111(a) of the Property Act Section 111 Clause (a) reads as under :
"111. A lease of immovable property determines -
22. In the present case we are not concerned with any of the other clauses of Section 111. We confine the present decision only on the aforesaid mode of determination of lease of immovable property by efflux of time. It is obvious that such a lease gets determined by efflux of time. The determination is automatic and does not depend upon any Act either on the part of the landlord or on the part of the tenant."
33. Therefore, the plaintif has proved that the relationship between the landlord and tenant is determined. He has proved the valid termination of tenancy. Hence, I answer point No.3 in the affirmative.
44 (SCCH16) S.C. 1788/2017
34. POINT NO.4 AND 5: Since these points are interlinked, they are discussed together to avoid repetition facts. The plaintif has sought for arrears of rent of Rs.36,000/-. There are no authentic documents produced to show that the rent amount is due from the defendant. The plaintif has failed to prove the damages by adducing cogent evidence. The non-payment of rent is not supported by cogent evidence. Hence plaintif is not entitled to relief of arrears of rent.
35. As discussed above, the plaintif has proved the relationship between it and the defendant. He has proved the lease agreement between himself and the defendants. He has further proved that the tenancy is validly terminated. He has further proved that it is entitled to recover the suit premises. Hence, plaintif is entitled to possession of the suit property by quitting the existing possession of the defendant. Hence, I answer point No.4 in the affirmative and point No.5 in the negative.
45 (SCCH16) S.C. 1788/2017
36. POINT NO.6 : In the light of the discussion, reasons and findings under Points No.1 to 5, it is just and proper to pass the following:
ORDER The Suit of the plaintif against the defendants is hereby decreed with costs as follows:
The defendants are directed to quit, vacate the suit premises and deliver the vacant possession of the suit premises to the plaintif within two months from the date of this order.
Draw decree accordingly.
(Dictated to the stenographer, transcribed by him, corrected by me and then pronounced in the open court on this 31 st day of January 2024) (Ganapati Bhat), X Addl. Judge, Court of Small Causes, Bengaluru.
SCHEDULE OF THE PROPERTY All that piece and parcel of the property bearing No.22, first floor, PID No.27-5-22, situated at 4th Cross, 5th Main, Gandhinagar, Bengaluru with 46 (SCCH16) S.C. 1788/2017 staircase right to ingress and egress measuring east to west 45 feet and north to south 70 feet with an area of 3150 square feet and bounded on :
East by : House bearing No.3 West by : House bearing No.5 belonging to Krishnappa North by : 4th Cross road South by : Premises No.7, belonging to Lakshminarayana Setty ANNEXURE List of witnesses examined on behalf of plaintiff:
PW1 Sri B.A. Madhu List of documents exhibited on behalf of plaintiff:
Ex.P1 Office copy of the Legal Notice Ex.P2 to 4 Courier Receipts Ex.P5 Ex.P6 to 4 Postal Receipts Ex.P9 Ex.P10 Reply Notice Ex.P11 Postal Envelope Ex.P12 Certified copy of the plaint of OS No.3962/2015 Ex.P13 Certified copy of Rent Agreement Ex.P14 Certified copy of Chief and cross-
examination in OS No.3962/2015
Ex.P15 & Certified copy of Order Sheet and
Ex.P16 Judgment in OS 3962/2015
47 (SCCH16) S.C. 1788/2017
List of witnesses examined on behalf of
defendants:
DW1 Sri D. Rajgopal
List of documents exhibited on behalf of defendants:
Ex.D1 Certified copy of Registered Sale Deed dated 06-08-2008 Ex.D2 Certified copy of Registered Mortgage Deed dated 20-11-2008 Ex.D3 Certified copy of Deed of Discharge dated 29-05-2010 Ex.D4 Certified copy of Agreement of Sale dated 29-05-2010 Ex.D5 Income tax return acknowledgment and pendrive with memory card with certificate u/sec 65B(4) of Indian Evidence Act Ex.D6 Computation of income and balance sheet and income tax return verification form and pendrive with memory card with certificate u/sec 65B(4) of Indian Evidence Act Ex.D7 Copy of Chief and cross-examination of Ramakrishna, S/o Hanumaiah in OS No.3962/2015 (Ganapati Bhat), X Addl. Judge, Court of Small Causes, Bengaluru.