Bangalore District Court
Girijamba G. N vs Anand P. S on 6 January, 2025
1
O.S. No.2953/2011
KABC010148302011
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XL ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY : (CCH-41)
::Present::
Smt. Veena N., B.A.L. L.L.B.,
XL Addl. City Civil & Sessions Judge,
Bengaluru City.
Dated this 06th day of January, 2025.
O.S. No.2953/2011
PLAINTIFFS :: 1. Smt. G.N.Girijamba, Since deceased by
her LRs.
:: (a) Ms. G.R.Parvati, Aged about 58 years,
D/o. Late. G.N.Girijamba No.2203/G, 23 rd
Cross, Banashankari II Stage, Bengaluru -
560 070.
:: (b) Mr. Nagabhushan Gubbi, Aged about 55
years, S/o. Late. Girijamba, B-12, Motvert
Tranquille, Sy. No.181/182, Wakad-
Chinchwad Road, Wakad, Pune - 411 027.
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O.S. No.2953/2011
:: (c) Mr. Gangadhar Gubbi, Aged about 53
years, S/o. Late. G.N.Girijamba, C-8,
Motvert Tranquille, Sy. No.181/182, Wakad-
Chinchwad Road, Wakad, Pune - 411 027.
:: (d) Mr. Nataraj Gubbi, Aged about 50 years,
S/o. Late. G.N.Girijamba, Branch Manager,
Himachal Gramin Bank Mandi, Himachal
Pradesh.
:: (e) Mrs. Anuradha Ramaswamiah Ganguly,
Aged about 40 years, W/o. Dabashish
Ganguly,
:: (f) Mr. Sathyajit Gubbi, Aged about 42
years, S/o. Late. G.N.Girijamba,
Sl. No.1(e) & (f) R/at: No.2203/G, 23rd
Cross, Banashankari II Stage, Bengaluru -
560 070.
(By Sri. Abhinav R., Advocate)
V/s.
DEFENDANT :: Sri. P.S.Anand, Aged about 71 years,
S/o. Late. P.Subbarayan Setty, No.532,
Sampige Road, Malleswaram, Bengaluru -
560 003.
(By Sri. Praveen Hegde, Advocate)
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O.S. No.2953/2011
Date of Institution of the :: 20-04-2011
Suit
Nature of the Suit :: EJECTMENT
Date of commencement of :: 01-07-2024
recording of evidence
Date on which the :: 06-01-2025
Judgment was pronounced
Total Duration :: Year/s Month/s Day/s
13 08 17
(VEENA N.)
XL Addl. City Civil & Sessions Judge,
Bengaluru City.
JUDGMENT
Suit is one for ejectment directing the defendant to quit, vacate and hand over the vacant possession of the suit schedule property and for damages of Rs.3,50,000/- for the period 09.03.2011 to 08.04.2011 with interest at the rate of 12% p.a. and damages at the rate of Rs.3,50,000/- p.m. from the date of suit till delivery of possession of the schedule property.
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2. Case of the plaintiffs in brief is as hereunder:-
The plaintiff is the absolute owner of the suit schedule property. The defendant was inducted into the schedule property as a lessee by the father of the plaintiff Sri. G.S.Nanjundaiah under lease deed dated 08.02.1971 for a fixed period of 35 years and lease deed was duly registered and the lease period stipulated under the lease deed expired on 08.02.2006. There has been no renewal or extension of the lease in respect of the schedule property.
The defendant instituted a suit in O.S. No.2692/1981 on the file of 11th Additional City Civil & Sessions Judge, Bengaluru for the relief of specific performance of agreement of sale dated 29.11.1979. The said suit was contested by the parties. During the pendency of the said suit Sri. G.S.Nanjundaiah passed away and in his place his legal heir Smt. G.N.Girijamba i.e. the plaintiff was brought on record. The said suit came to be decreed on 19.08.2000.
As against the judgment and decree, the plaintiff preferred 5 O.S. No.2953/2011 RFA. No.821/2000 and the appeal came to be allowed and the judgment and decree of the trial Court was set aside and the plaintiff was directed to pay sum of Rs.13,500/-
with interest. The plaintiff has deposited the amount as per the direction issued by the Hon'ble High Court and thereby, she has complied the directions given in the judgment dated 16.12.2010. As against the judgment and decree, the defendant preferred Special Leave Petition before the Hon'ble Supreme Court. It is stated that the defendant who was inducted as a tenant in respect of schedule property has not delivered vacant possession even after the expiry of the lease period as contemplated under registered lease deed 18.08.1971. Though the lease stands determined automatically by efflux of time and there is an obligation on the part of the defendant to quit, vacate and deliver vacant possession, the plaintiff continues to be in unauthorized occupation as a tenant at sufferance. The plaintiff issued legal notice dated 14.02.2011 calling upon the defendant to 6 O.S. No.2953/2011 quit, vacate and deliver vacant possession of the schedule property and it was also brought to the notice of defendant that he shall be liable to pay damages at the rate of not less than Rs.3,50,000/- p.m. The said notice was duly served upon the defendant and the defendant has not sent any reply. Despite of determination of lease, the defendant has not surrendered the vacant possession of the schedule property and hence, cause of action arose to file the suit and the present suit is filed.
3. In pursuance to the summons issued the defendant caused appearance and filed his written statement wherein which it is contended that the possession of the defendant over the suit schedule property is legal and secured under a legal contract in as much as the predecessor in title of the plaintiff have delivered possession in terms of lease deed and subsequently, executed an agreement to sell dated 7 O.S. No.2953/2011 29.11.1979 agreeing to sell the premises in favour of the defendant and thereby, the possession taken by the defendant has culminated into a possession taken under an agreement to sell and is construed as possession delivered in part performance of an agreement to sell. Even after the expiry of the lease period, the occupation of defendant is not illegal and is not terminated automatically as alleged, but it would continue with defendant as an agreement holder in continuation of the said agreement to sell. Thus, no right vests with the plaintiff to eject the defendant until the right of the defendant is decided by the Hon'ble Supreme Court in the Special Leave Petition filed against the plaintiff. It is stated that the plaintiff is debarred from prosecuting the suit and she has no right to continue the proceedings in the light of the order of status-quo being granted by the Hon'ble Supreme Court directing both the parties to keep the nature, title and possession of the suit property subject to condition that the defendant continues 8 O.S. No.2953/2011 to pay to the plaintiff an amount of Rs.10,000/- p.m. towards user charges. So the plaintiff is bound by the interim order and at the same time, the defendant is paying user charges of Rs.10,000/- p.m. regularly to the account of legal heirs of the plaintiff. It is further contended that if the Hon'ble Supreme Court grants relief in favour of the defendant, then the judgment and decree that may be granted in favour of the plaintiff herein in the present suit will not be executable and the entire exercise of the trial will become futile leading to waste of public time. The plaintiff cannot maintain legal action which may lead to contradict or defeat the judgment and decree that may be granted by the Hon'ble Apex Court. It is further contended that the present suit is filed to compel this defendant and to nullify the ultimate benefit of the verdict that may be passed in favour of the defendant and therefore, on this ground the suit is liable to be dismissed as barred under law and is not maintainable. Further it is established principle of law that 9 O.S. No.2953/2011 no two parallel proceedings can be maintained which possibly lead to contradictory judgments and therefore, on this ground the suit is not maintainable. It is stated that as per the interim order passed by the Hon'ble Supreme Court, the right of the defendant as a lessee is merged with the agreement to sell and possession taken by him as a tenant enured to the benefit of the defendant as an agreement holder and there is no liability on the part of defendant to deliver back the possession of schedule property until disposal of SLP. The right of the plaintiff to recover possession from the defendant is depending upon the result of the said SLP filed by the defendant and in the event the defendant succeeds in SLP, he will be entitled to get a registered sale deed either from the plaintiffs or from the Court as per law. It is stated that there is no question of extension of lease period as alleged as the lease holder rights of the defendant is merged with agreement to sell, whereby the defendant is deemed to have taken 10 O.S. No.2953/2011 possession in part performance of the agreement to sell. Thus, the defendant has no obligation to quit and deliver the vacant possession of the suit schedule property to the plaintiff and the defendant is not an unauthorized occupant or a tenant at sufferance. It is admitted that the plaintiff issued legal notice on 14.02.2011 and it is stated that the defendant could not reply to the same in view of the pendency of the SLP before the Hon'ble High Court of Karnataka. However, the defendant did not accept the right of the plaintiff to eject him from the schedule property. Further, this defendant is not liable to pay any damages or mesne profits as sought for by the plaintiffs as he is not an illegal occupant. The tenancy of the defendant is not terminated in accordance with law in as much as the notice of alleged termination does not survive in the eye of law and also on facts and hence, the suit is liable to be dismissed.
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O.S. No.2953/2011
4. In order to discharge the burden, the plaintiff No.1(a) and got examined herself as P.W.1 and relied upon 14 documents marked at Ex.P.1 to Ex.P.14 and closed the evidence.
5. The defendant got examined as D.W.1 and relied upon one document marked at Ex.D.1 and closed the evidence.
6. Heard learned counsel for the plaintiffs and defendant and perused the records.
7. The aforesaid pleadings have occasioned following:-
ISSUES
1. Whether the plaintiff proves that defendant was inducted into the suit schedule property as a lessee under lease deed dtd:08.02.1971 for a fixed period of 35 years ?12
O.S. No.2953/2011
2. Whether the plaintiff proves the determination of the lease by efflux of time ?
3. Whether the plaintiff proves that the defendant has continued to be in unauthorized occupation as a tenant at sufferance ?
4. Whether the defendant proves that he is in lawful possession of suit property as agreement holder as per agreement of sale dtd:29.11.1979 ?
5. Whether the plaintiff is entitled for vacant possession of suit property ?
6. Whether the plaintiff is entitled for damages and mesne profits as claimed ?
7. What order or decree ?
8. My answers to the above issues are as follows:
ISSUE No.1 :: In the Affirmative
ISSUE No.2 :: In the Affirmative
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O.S. No.2953/2011
ISSUE No.3 :: In the Affirmative
ISSUE No.4 :: In the Negative
ISSUE No.5 :: In the Affirmative
ISSUE No.6 :: Partly in the Affirmative
ISSUE No.7 :: As per final order for the
following;
REASONS
9. ISSUES NO.1 TO 5 :: All these issues are
taken up collectively for common discussion to avoid repetition of facts and also for convenience of the Court.
Suit is one for ejectment directing the defendant to quit, vacate and hand over the vacant possession of the suit schedule property and for damages of Rs.3,50,000/- for the period 09.03.2011 to 08.04.2011 with interest at the rate of 12% p.a. and damages at the rate of Rs.3,50,000/- p.m. from the date of suit till delivery of possession of the schedule property.
Before adverting to the controversy involved in the suit, it is considered necessary to take note of the undisputed facts of the case which can be culled out from 14 O.S. No.2953/2011 the pleadings and the documents placed on record. The description of the suit schedule property involved in the present suit is as follows :
SCHEDULE All that property consisting built on site No.541, present Door No.532 situated in Second Main Road, Sampige Road, Malleswaram, Bengaluru measuring East to West - 130 ft; and North to South - 30 ft; and bounded on the East by - Corporation Conservancy Lane, West by - Sampige Road, North by - Property No.531 belonging to Narayan Rao and South by - Property No.533 belonging to Krishnaji Rao.
10. It is an undisputed fact that one Sri. Nanjundaiah was the absolute owner of the suit schedule property and the defendant was inducted as a tenant in respect of the schedule property under registered lease deed dated 08.02.1971 for a period of 35 years and the term of the lease expired on 08.02.2006.15
O.S. No.2953/2011
11. The defendant relying on the agreement to sell alleged to have been executed by Sri. G.S.Nanjundaiah dated 29.11.1979, has a raised a specific defense that though he was inducted into the schedule property as a tenant in terms of lease deed, subsequently, by virtue of the execution of agreement to sell dated 29.11.1979 the possession of the defendant as a tenant, has culminated into a possession taken under an agreement to sell and is construed as, possession delivered in part performance of an agreement to sell and even after, expiry of the lease period he has continued to be in possession as an agreement holder and thus, no right vests with the plaintiff to eject the defendant.
12. It is also undisputed that the defendant herein filed O.S. No.2692/1981 on the file of 11 th Additional City Civil & Sessions Judge, Bengaluru seeking relief of specific performance of agreement to sell dated 29.11.1979 and the 16 O.S. No.2953/2011 Court decreed the suit and being aggrieved by the judgment and decree passed, G.S.Nanjundaiah preferred RFA. No.821/2000 before Hon'ble High Court. During the pendency of the appeal proceedings, G.S.Nanjundaiah died and his only daughter Smt. G.N.Girijamba who represented his estate was brought on record as his legal heir and the the Hon'ble High Court vide judgment dated 16.12.2010 has allowed the appeal and the judgment and decree passed in O.S. No.2692/1981 is set aside. However, the suit of the plaintiff is decreed directing the defendant to pay Rs.13,500/- together with interest at the rate of 12% p.a. from the date of suit till its realization. The Hon'ble High Court in para No.14 of its judgment has observed as hereunder:
14. The agreement of sale was dated 29.11.1979. Now we are in 2010. Under the agreement of sale the plaintiff had only paid an advance amount of Rs.10,000/-. The schedule property is situated in the heart of 17 O.S. No.2953/2011 Bengaluru city. It is not in dispute that there is continuous raise in the value of landed properties in Bengaluru city by several times.
At this length of time granting decree of specific performance would be inequitable and results in great hardship to the defendant. In identical circumstances the Supreme Court in the case of Manohar Lal alias Manohar Singh Vs. Maya AIR 2003 SC 2362 held that directing of refund of advance money with reasonable interest instead of passing a decree of specific performance will meet the ends of justice. Further the Supreme Court in the case of P.V.Joseph's Son Mathew Vs. N.Kuruvila's Son and others. AIR 1987 SC 2328 held that the Court should see the litigation is not used as an instrument of oppression to have an unfair advantage to the plaintiff. In the circumstances grant of decree of specific performance in favour of the plaintiff in the instant case will be an unfair advantage to him and it will be inequitable to the defendant. The Trial Court failed to consider 18 O.S. No.2953/2011 this aspect of the matter and the reasoning is contrary to the law laid down by the Apex Court and also the material on record.
13. As against the judgment and decree, the defendant preferred Civil Appeal No.8317/2011 and the Hon'ble Apex Court vide order dated 02.01.2024 has dismissed the petition and the observation of the Hon'ble Apex Court reads as hereunder:
The appeal is taken on board.
Heard learned counsel for the parties. We find no merit in this appeal. The appeal is, accordingly, dismissed.
14. Further, the counsel for the plaintiff has filed memo along with the copy of the order passed by the Hon'ble Apex Court in Review Petition (Civil) No.467/2024 in Civil Appeal No.8317/2011 which shows the defendant herein has preferred review petition as against the order passed by the Hon'ble Apex Court and the Hon'ble Apex 19 O.S. No.2953/2011 Court vide its order dated 16.04.2024 has dismissed the Review Petition and the observation of the Hon'ble Apex Court reads as hereunder:
I.A. No.28318/2024, which is an application seeking open Court hearing of the review petition, is rejected.
We have gone through the review petition as well as the grounds in support thereof. We do not find any error, much less apparent, in the order impugned, warranting its reconsideration.
15. So by this, the contention raised by the defendant that the possession taken by the defendant as a tenant has culminated into a possession taken under an agreement to sell and is construed as possession delivered in part performance of an agreement to sell and is in possession as an agreement holder stands negated.
16. Now the only point that requires to be considered by this Court is as to whether the lease is 20 O.S. No.2953/2011 terminated by efflux of time and the possession of the defendant over the suit schedule property is unauthorized and as to whether the plaintiff is entitled for vacant possession of the schedule property.
17. The learned counsel for the plaintiff in his arguments submits that the execution of lease deed dated 08.02.1971 is undisputed and it was for a limited period of 35 years and it has come to an end on 08.02.2006 and further, the plaintiff has terminated the lease by issuing notice as per Ex.P.2 and it is admitted by the defendant in his written statement that he has not given reply to the notice and there is no dispute about the jural relationship of landlord and tenant and this fact is admitted by the defendant in his written statement and the said lease deed is also produced which is marked as Ex.P.1 and the defendant has though relied upon the agreement of sale, the said document itself is not produced before the Court 21 O.S. No.2953/2011 and hence an adverse inference has to be drawn against the defendant and in view of the order passed by the Hon'ble Apex Court the defendant has no defense at all. It is further submitted that since the lease expired on 08.02.2006 by efflux of time as contemplated under Section 111 of the Transfer of Property Act the lease is terminated and the possession of defendant over the suit schedule property is unauthorized and is liable to be evicted. It is further submitted that since the tenancy is admitted it is not necessary for the plaintiff to file suit for possession and suit for eviction is maintainable. It is further argued that, since the relationship between the deceased plaintiff and the present plaintiff is admitted and also since the defendant has admitted the ownership of the original owner in respect of the suit schedule property, he cannot dispute the jural relationship and by virtue of Sec.116 of the Evidence Act R/w. Sec.111(g) of Transfer of Property Act he is estopped from denying the title of the plaintiff. Further it is admitted 22 O.S. No.2953/2011 that the entry of the defendant is as a lessee and it is corroborated by the terms of contract as per lease deed placed on record and there is no extension of tenancy and the agreement of sale do not create any right in favour of defendant under Section 54 of the Transfer of Property Act and added to this, the defendant has not produced the agreement of sale and he has not produced any document to show the jural relationship has come to an end and as the agreement to sell is not produced, adverse inference has to be drawn against the defendant.
18. In support of his argument, learned counsel for plaintiff has relied upon the judgment of the Hon'ble Apex Court in case of Sheela and Others V/s. Firm Prahlad Rai Prem Prakash reported in (2002) 3 SCC 375 wherein it is held that:
E. Evidence Act, 1872- S.116 - If tenant is apprised of transfer of title of landlord and he acknowledges title of transferee, 23 O.S. No.2953/2011 expressly or by paying rent to him, held, rule of estoppel would come into operation - It would not be fair to permit tenant to approbate and reprobate in such a situation
- Approbate and Reprobate - Tenant and transferee landlord relationship.
Section 116 of the Evidence Act embodies therein a rule of estoppel. No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. This estoppel so long as it binds the tenant excludes the tenant from raising a plea disputing the title of his landlord at the commencement of the tenancy. It flows as a corollary therefrom that the proof of landlord-tenant relationship tantamounts during the continuance of tenancy to proof of ownership of landlord over the tenancy premises at the beginning of the tenancy so far as the tenant is concerned. It is significant to note that on 24 O.S. No.2953/2011 the phraseology of Section 116 of the Evidence Act the rule of estoppel applies so long as the tenancy is not terminated and the rule estops the tenant from laying challenge to the ownership of the landlord at the commencement of the tenancy. But the rule of estoppel as incorporated in Section 116 is not exhaustive and it may be extended or suitably modified in its application to other situations as well, retaining the basic feature of the rule.
Clause (g) of Section 111 of the Transfer of Property Act, insofar as relevant for our purpose, provides that a lease of immovable property determines by forfeiture in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself.
19. Learned counsel has further relied upon the judgment of the Hon'ble Apex Court reported in (2019) 4 SCC 153 in the case of H.K.Sharma V/s. Ram Lal wherein it is held as hereunder;
25
O.S. No.2953/2011 A. Property Law - Transfer of Property Act, 1882 - Ss.111(e), 111(f) and 105 to 117 -
Lessor-Lessee Relationship - Non-
termination of, ipso facto on execution of an agreement to sell tenanted premises to tenant - Intention to surrender the existing lease/tenancy - Necessity of, for such termination - Terms/clauses of the agreement to sell - Relevance of, for inferring such intention.
20. On the contrary, the learned counsel for defendant in his arguments submits that, admittedly the defendant was inducted into the suit property as a tenant and thereafter, by virtue of execution of agreement of sale his initial possession as tenant, is later merged as agreement holder and further, there is no attornment of tenancy in favour of plaintiff and since the possession is as an agreement holder suit for ejectment is not maintainable and the plaintiffs ought to have sought for possession and in view of the possession of defendant as an agreement 26 O.S. No.2953/2011 holder there arises no question of determination of tenancy and even after expiry of the lease the defendant continued to be in possession as agreement holder and hence, the suit for ejectment is not maintainable.
21. In support of his arguments, he has relied upon the judgment reported of our Hon'ble High Court reported in 2017(1) Kar. L.J.74 in case of D.S.Manjunath V/s. M.Krishnaiah Setty (Since deceased) By his Lrs. wherein it is held as hereunder:
Relief of specific performance of sale agreement - Fiscal statute - Requirement of strict construction - Held, once a tenant enters into sale agreement, he would continue to be in possession of premises - Relationship of parties would not be between landlord and tenant - On the other hand, on account of implied surrender of rights of a party as tenant, the relationship of landlord and tenant - would cease from date of agreement and replaced by new relationship of intending purchaser and seller.27
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22. Learned counsel has further relied upon judgment of the Hon'ble High Court reported in 2009 (3) Kar. L.J.319 in case of B.Paramashivaiah and Another V/s. M.K.Shankar Prasad and Another wherein it is held as hereunder:
Respondent-landlord agreed to sell
schedule premises to petitioners for
valuable consideration - Whether jural relationship of landlord and tenant changed on account of agreements entered into between parties ? - Apparent on agreement that a portion of sale consideration was paid and sale transaction to be completed only in event of respondents producing documents of title. An implied surrender of schedule premises by petitioner - tenants to respondents and that relationship of landlord and tenant ceased and new jural relationship of purchaser and seller commenced from date of agreements -
Provisions of Karnataka Rent Act could not have been invoked by respondents so as to 28 O.S. No.2953/2011 seek eviction of petitioners - Point No.(1) answered in negative - Section 53-A of the Transfer of Property Act enables petitioners in possession of premises by virtue of agreement to defend his possession -
Respondents-landlords had no right to evict petitioners by virtue of provisions of Karnataka Rent Act - Order passed by Trial Court set aside - Revision petitions allowed.
23. Having heard the arguments putforth by the both counsels and having considered the aforesaid judgments, this Court proceeds to analyse as to whether the execution of agreement of sale dated 29.11.1979 would ipso facto result in determination of lease and sever the relationship of lessor and lessee in relation to the leased property and whether the intention of the parties was to surrender the lease on execution of such agreement of sale in relation to the leased premises.
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24. The plaintiff in order to establish her claim and discharge the burden got examined herself as P.W.1 and she has in her evidence deposed that the original plaintiff is her mother and plaintiff No.1(b) to (f) are her siblings and her mother passed away, during the pendency of the suit. It is stated that her mother Girijamba was the absolute owner of the property and the defendant was a lessee in respect of the schedule property having been let out to him by her grandfather G.S.Nanjundaiah under lease deed dated 08.02.1971 for a fixed period of 35 years and the lease expired on 08.02.2006 and thereafter, there has been no renewal or extension of lease in respect of suit property. During the subsistence of the lease her grandfather passed away on 25.01.1983 and the tenancy stood attorned in favour of his only daughter i.e. the deceased plaintiff. The defendant has not delivered vacant possession even after expiry of lease period and the lease being determined by efflux of time, the lease stands determined automatically by 30 O.S. No.2953/2011 efflux of time and the defendant continues to be in unauthorized occupation as a tenant at sufferance. However, as a matter of abundant precaution, the plaintiff got issued legal notice on 14.02.2011 calling upon the defendant to quit, vacate and deliver vacant possession of the suit property and to pay damages at the rate of not less than Rs.3,50,000/- p.m. from March 2011 and the notice is duly served upon the defendant and he has not sent any reply to the notice. Further it is stated that despite of determination of lease, the defendant has not surrendered vacant possession of the schedule property and hence, the present suit is filed for eviction and for damages.
25. In support of her evidence, she has relied upon Ex.P.1 which is deed of lease dated 08.02.1971 which shows the said lease is executed in between the erstwhile owner who is the grandfather of the plaintiff Sri. G.S.Nanjundaiah and in favour of the defendant which 31 O.S. No.2953/2011 shows the term of the lease is for 35 years at the first instance and it also stipulates the quantum of rent to be paid and the periodical enhancement of the rent and it shows that the lease commences from 01.02.1971 and the defendant has paid lease amount of Rs.12,500/- at the commencement of lease. So this lease deed is executed subject to the various terms and conditions stipulated therein and clause No.11 and 14 of the lease deed reads as hereunder:
(11) The Lessee hereby agrees to deliver the possession of the schedule premises to the Lessor including any addition alteration and improvements made by him on the expiry of the lease period of 35 years without demanding any price or compensation in regard to the addition and or alterations made during the period of lease.
(14) It is hereby agreed by both the parties that the rents will be paid either to the Lessor or Smt. G.N.Girijamba daughter of Sri. 32 O.S. No.2953/2011 G.S.Nanjundayya (the Lessor) wife of Sri. G.N.Ramaswamy, Supt. Engineer, Hameerpur, Himachala Pradesh, on the first of every month.26. The sum and substance of clause No.18 to 20
of the lease deed shows that the lessor has assured that he will not alienate or create encumbrance over the lease property and if the lessor intends to sell the property, first option to purchase will be given to the lessee in writing and the lessor has handed over the original documents of title related to the schedule premises to the lessee and it is agreed that the original documents shall be in the custody of the lessee i.e. the defendant herein till the expiry of the lease period.
27. Ex.P.2 is the legal notice dated 14.02.2011 which shows the plaintiff has issued the notice terminating the tenancy and in the said notice the defendant is required 33 O.S. No.2953/2011 to handover the vacant possession over the schedule property as the lease has expired by efflux of time and has also sought to pay damages at the rate of Rs.3,50,000/- p.m. from March 2011. Ex.P.3 to Ex.P.5 are the postal receipt, acknowledgment and COP receipt which proves the factum of issuance and service of notice on the defendant.
28. So these documents coupled with the oral testimony of P.W.1 establishes that, the defendant was inducted into the suit premises as per Ex.P.1 as a tenant for a fixed period of 35 years subject to the terms and conditions stipulated therein and his entry into the schedule property is as a tenant and all the original documents i.e. title deed pertaining to the schedule property is in possession of the defendant and there is a clear recital which shows that the defendant has agreed to pay rents either to the lessor i.e. Sri. Nanjundaiah or his only 34 O.S. No.2953/2011 daughter Smt. Girijamba i.e. the deceased plaintiff. So this shows the defendant has in clear terms admitted the title of the owner Nanjundaiah and his daughter i.e. deceased plaintiff.
29. During cross-examination of P.W.1, it is admitted that subsequent to execution of lease deed, her grandfather has executed sale agreement in favour of the defendant and her grandfather had received consideration amount in lieu of the sale agreement. P.W.1 pleads ignorance to the suggestion putforth that the possession of defendant over the suit property is not as a lessee but as an agreement holder. P.W.1 says that the defendant paid rent upto the year 2006 and thereafter, he has not paid the rent. P.W.1 says, she do not know whether her mother issued legal notice to the defendant after demise of her grandfather and do not know as to whether there is attornment of tenancy in favour of her mother after the 35 O.S. No.2953/2011 death of her grandfather and do not know whether the tenancy was attorned in favour of her mother and denies the suggestion that since there is no attornment of tenancy there exists no jural relationship of landlord and tenant between her mother and the defendant. But P.W.1 volunteers that even after death of her grandfather defendant paid rent to her mother. Further P.W.1 also pleads ignorance to the suggestion that as per the clause in the lease agreement it is agreed between the parties to continue tenancy with consent even after expiry of 35 years. She admits that as per clause 14 of the lease deed, the defendant paid rent to her mother and the suggestion putforth that the defendant paid rent to her mother in her capacity as owner of the suit property is denied. But it is necessary to note that just because, the plaintiff has denied the suggestion, that would not enure to the benefit of the defendant for the reason that, Ex.P.1 makes it manifestly clear that, the defendant has agreed to pay the either to the 36 O.S. No.2953/2011 original owner Nanjundaiah or to his only daughter Girijamba. So deceased plaintiff being the only daughter of Nanjundaiah has succeeded to his estate and she has inherited the property. So under such circumstances, the right has devolved upon her as an owner and the defendant cannot take advantage of a vague denial of the plaintiff about the ownership of deceased plaintiff. There is an admission that the suit property since 1971 is in possession of the defendant and she has not visited the property and it is under the complete care and custody of the defendant and he is maintaining the property out of his own cost and without any bonafide requirements the plaintiff is seeking for eviction. The suggestion putforth that even after the efflux of time i.e. after the year 2006, the defendant has been regularly paying rent to her mother is denied by P.W.1. She pleads ignorance to the suggestions that initially the defendant has maintained the suit property as a lessee and thereafter, he has been maintaining the 37 O.S. No.2953/2011 suit property as an agreement holder. Though P.W.1 pleads ignorance as to whether her mother has terminated the tenancy, Ex.P.2 speaks about the termination of tenancy. So all the efforts made to elicit that the possession of the defendant over the suit property was though initially as a lessee it thereafter, merged as an agreement holder turned futile.
30. So by this, the plaintiff has discharged the initial burden of proving the existence of jural relationship between the deceased plaintiff and the defendant and that the possession of the plaintiff over the suit schedule property is as an unauthorized occupant in view of the termination of lease by efflux of time. Now the onus shifts on the defendant to establish that his possession over the suit property is in his capacity as an agreement holder in view of the agreement of sale dated 29.11.1979 and his possession is not as a lessee and as such the suit for ejectment is not maintainable.
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31. In order to discharge the onus the defendant got examined through his Special Power of Attorney holder as D.W.1 and he has in his evidence deposed that his father i.e. defendant entered into an agreement of lease with Sri. G.S.Nanjundaiah under lease deed dated 08.02.1971 who was sole and absolute owner of the suit schedule property with the lease to commence from 01.02.1971 and at the time of entering into the lease the period was fixed for a initial period of 35 years with a refundable deposit of Rs.12,500/- with agreed rents therein. Having been inducted as a tenant the defendant developed the schedule property to suit his business needs and till this day the building is maintained by the defendant by carrying on business and the entire building is maintained with the cost of the defendant. The defendant was never due in terms of agreed rents and he was regularly paying the rents. During the subsistence of lease, Sri. G.S.Nanjundaiah was intending to sell the suit schedule 39 O.S. No.2953/2011 property and as per the terms of clause 18 of the lease he entered into agreement of sale dated 29.11.1979 agreeing to sell the schedule property in favour of the defendant. Under the circumstances, the defendant continued to be in possession as an agreement holder. Thus, the execution of the lease deed and agreement of sale are undisputed and this plaintiff is also a consenting witness to the agreement of sale dated 29.11.1979. Since the defendant failed to execute the sale deed, the defendant initiated proceedings in accordance with law by filing suit for specific performance and the matter went upto the Hon'ble Apex Court and as per the direction issued by the Hon'ble Apex Court the defendant is paying a sum of Rs.10,000/- as user charges which is paid till day. It is stated that at no point of time this plaintiff has communicated to the defendant that she is the owner of suit schedule property. With the defendant being in possession as per the agreement of sale, even after the order passed by the Hon'ble Apex 40 O.S. No.2953/2011 Court there is no attornment of tenancy. Under such circumstances, there exists no relationship of landlord and tenant between the plaintiff and defendant and till this day the plaintiff has not communicated to the defendant that she is the landlord as per law and the plaintiffs have waived their rights of attornment of tenancy. With the tenancy not being attorned mere claim of the plaintiff that she is the owner and the suit for ejectment is not maintainable. The defendant being in possession of the schedule property has maintained and developed the suit property and hence, the claim of the plaintiffs for damages is unsustainable. The defendant is having an established business carrying on since for more than 40 years in the suit property and he would be put to grave hardship in terms of reputation of the business and hence, the suit is not maintainable and the plaintiff is not required of the property for any bonafide reasons and thus, sought for dismissal suit with exemplary costs.
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32. Ex.D.1 is the Special Power of Attorney executed by defendant in favour of D.W.1. That apart the defendant has not produced the agreement to sell dated 29.11.1979 based on which his entire defense is raised. During his cross-examination he admits that he was 11-12 years old when the agreement to sell came to be executed. So he was 4 years old when the lease deed came to be executed and 11-12 years when the agreement to sell the came to be executed. So under such circumstances, the evidence of defendant No.1 that he is a consenting witness to the agreement of sale holds no substance. He admits that the lease period was for a fixed period of 35 years and after expiry of the fixed term there was no fresh lease deed between the parties and he volunteers that since the matter was pending before the Hon'ble Apex Court, lease deed was not renewed. He admits that he has not paid rent to the plaintiff, but has only paid user charges of Rs.10,000/- as per the direction issued by the Hon'ble Apex Court. 42
O.S. No.2953/2011 There is an admission about the relationship of the deceased plaintiff with the original lessor Sri. G.S.Nanjundaiah and he admits that the original lessor and the owner of the property was one Sri. G.S.Nanjundaiah and the deceased plaintiff Smt. Girijamba was the only daughter and as per clause 14 of Ex.P.1 the rent was supposed to be paid to Sri. G.S.Nanjundaiah or his daughter Girijamba and also admits that as per clause 19 all the original title deeds are in the custody of the defendant and to the question as to why the original title deeds were not handed over to the owner, it is his answer, that the matter was pending before the Hon'ble Apex Court and hence the original title deeds were not handed over to the original owner or to the plaintiff. Further there is an clear admission that, after demise of Sri. G.S.Nanjundaiah the deceased plaintiff represented Sri. G.S.Nanjundaiah in the matters before the Hon'ble High Court and the Hon'ble Apex Court and after her demise the plaintiffs represented 43 O.S. No.2953/2011 Girijamba in the matter before the Hon'ble High Court. But he denies that there is no attornment of tenancy in favour of the plaintiff and that the lease is determined by issuing legal notice.
33. At this point of time it is necessary to note that it is well-settled proposition of law that, the evidence should be confined to pleadings and any amount of evidence beyond pleadings cannot be considered. But in the instant case, the defendant in his written statement has denied the jural relationship and as to the attornment of tenancy and has raised the specific defense about the agreement to sell. But the evidence of D.W.1 shows his evidence is beyond the pleadings and hence, as per the judgment relied upon by the learned counsel for plaintiff reported in (1) 2024 SCC OnLine SC 226 in case of Srinivas Raghavendrarao Desai (Dead) by LRs. V/s. Kumar Vamanrao alias Alok and Others.
44
O.S. No.2953/2011 (2) MFA. No.1101149/2018(FC) C/W. MFA. No.100784/2018 of Hon'ble High Court of Karnataka (Dharwad Bench) in case of Smt. Geetha V/s. Shri. Kalyankumar (3) (2008) 17 SCC 491 in case of Bachhaj Nahar V/s. Nilima Mandal and Another (4) (2020) 10 SCC 729 in case of Biraji Alias Brijraji and Another V/s. Surya Pratap and Others.
Where in it is held that no amount of evidence can be looked into which was never put-forward in the pleadings and a Court cannot make out a case not pleaded and the Court should confine its decision to the question raised in the pleading and cannot grant any relief which is not claimed and which does not flow from the facts and cause of action narrated in the suit.
34. So in view of the aforesaid proposition of law, the evidence of D.W.1 can be accepted only to the extent of defense raised in the written statement and his evidence 45 O.S. No.2953/2011 that, he has developed the suit property as per the agreed terms and the possession being in accordance with law the plaintiff cannot initiate suit for ejectment and can only seek for possession and hence, the suit is not maintainable and the evidence to the effect that the defendant has an established business since from more than 40 years and he would be put to great hardship in terms of reputation of the business in case suit is decreed and the plaintiff does not require the possession for any bonafide reasons cannot be taken into consideration.
35. So the evidence of D.W.1 clearly shows that there is a clear admission that he has not paid rent to the deceased plaintiff and only as per the direction of the Hon'ble Apex Court he has paid user charges of Rs.10,000/- p.m. and he also admits that as per clause 14 the rent was supposed to be paid to Nanjundaiah or to his only daughter and after the death of Nanjundaiah and 46 O.S. No.2953/2011 deceased plaintiff, the legal heirs represented the matters before the Hon'ble High Court and the Hon'ble Apex Court. So all these circumstances, leads to inference that the defendant has admitted the title of the plaintiff over the suit schedule property. It is necessary to note that it is an admitted fact that Nanjundaiah was the sole and absolute owner of the suit schedule property and it is also admitted that deceased plaintiff was the only daughter who inherited the property after his demise. Further after the demise Smt. Girijamba, the plaintiffs have succeeded to her estate being her children and so they have inherited the property. Another important aspect to be taken note of is that the defendant has not produced the agreement of sale to show that the intention of the parties was to end up the tenancy and the possession was continued by the defendant in his capacity as an agreement holder. When the defendant has laid his entire defense based on the agreement of sale it was obligatory on his part to produce the said document 47 O.S. No.2953/2011 before the Court. So in the absence of the document, an adverse inference can be drawn that, the execution of agreement of sale dated 29.11.1979 has not ipso facto resulted in determination of lease and severed the relationship of lessor and lessee in relation to the leased property and that there was no intention of the parties to surrender the lease on execution of such agreement of sale in relation to the leased premises.
36. Be that as it may, as discussed earlier by virtue of the order passed by the Hon'ble Apex Court the claim of the defendant over the suit property based on the agreement of sale is nullified. So as rightly argued by learned counsel for plaintiff, the non-production of agreement of sale by the defendant leads to an adverse inference against him. So in the absence of the agreement of sale, the Court cannot assume that the intention of the parties to the agreement of sale was to surrender the 48 O.S. No.2953/2011 tenancy rights and to continue the possession as agreement holder in the schedule property. So in the absence of any document, the defense raised by D.W.1 to this effect stands not proved.
37. Now so far as the title of the plaintiffs over the suit schedule property is concerned, the judgment relied upon by learned counsel for the plaintiff reported in (2002) 3 SCC which is discussed herein before is applicable to the case on hand. As per Sec.116 of the Evidence Act the defendant being tenant of the suit schedule property is estopped from disputing the title of the landlord in the said property. When the defendant being a tenant admits that the title of the original lessor Sri. Nanjundaiah he is estopped from raising a plea disputing the title of his legal heirs over the suit schedule property.
38. In view of the order passed by Hon'ble Court it can be held that the possession of defendant over suit 49 O.S. No.2953/2011 property is as a tenant and not as an agreement holder. So as per Sec.116 of the Evidence Act so far as the tenant is an occupation of the premises and so long as the tenancy is not terminated, he is estopped from denying the ownership of the landlord. Hence, defense raised by the defendant that the plaintiffs are not landlord and there is no attornment of tenancy cannot be accepted. Since the rights over the suit schedule property is devolved upon the plaintiffs by operation of law the tenancy is attorned in favour of the plaintiff by operation of law as per Sec.109 of the Transfer of Property Act.
39. Thus on analysis of the entire evidence placed on record, the plaintiff has successfully established that the defendant is in possession of the suit premises as a tenant and there has been termination of tenancy by issuing legal notice as per Ex.P.2 and also the lease is determined by efflux of time and also by issuing notice of termination on 50 O.S. No.2953/2011 09.03.2011 and so the possession of the plaintiff, since 09.03.2011 is unauthorized. On the other hand, the defendant has failed to establish that he is in possession of the suit property in his capacity as an agreement holder and accordingly, this Court proceeds to answer issues No.1 to 3 and 5 in the Affirmative and issue No.4 in the Negative.
40. ISSUE NO.6 :: PW 1 in order to establish the quantum of damages to which she is entitled has in her evidence deposed that the suit schedule property is in one of the prime locations at Bengaluru within 300 mtrs. of Mantri Mall, Sampige Theater, GRT Jewellers etc., and is situated between the commercial hub of Malleshwaram and the total extent of property is measuring 3900 sq. ft. P.W.1 relying on Ex.P.10 and Ex.P.11 which is the lease deeds dated 27.11.2017 and 25.05.2023 pertaining to the property situated in the same vicinity has stated that as per Ex.P.10 the prevailing rate of rent is Rs.75/- per sq. ft. with 51 O.S. No.2953/2011 enhancement at the rate of 5% and as per Ex.P.11 the prevailing rent is at the rate of Rs.83/- per sq. ft. with enhancement at the rate of 5% p.a. and sought to fix the damages at the rate of Rs.83/- per sq. ft.
41. Further P.W.1 has also relied upon Ex.P.12 to Ex.P.14 which are the printout copies of the postings, on 'No Broker' website which shows the rent quoted near the vicinity of the suit premises is Rs.78/- and Rs.89/-per sq.ft respectively. It is stated that the suit property is situated on the main road and the value of the property is much higher and in addition to the rents as mentioned earlier, huge amounts are deposited with the owner as security deposit and hence, sought damages of Rs.3,50,000/- p.m. for the period 09.03.2011 to 08.04.2011 with interest at the rate of 12% p.a. on the said amount from the date of suit till delivery of vacant possession of the suit schedule property. 52
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42. During her cross-examination she admits that the parties to Ex.P.10 and Ex.P.11 and the suit schedule properties are different and they are not related to the present suit and she also says that she do not know about the rent fixed to the properties mentioned in Ex.P.10 and Ex.P.11 in the year 1971.
43. It is necessary to note that there is an admission on the part of D.W.1 that he has not paid rent to the plaintiff since the year 2006 and he has only paid the user charges of Rs.10,000/- p.m. Further the defendant has not produced any document to show the expenses incurred towards its maintenance. Further Ex.P.8 and Ex.P.9 which are the statement of accounts for the period 01.04.2014 to 08.07.2024 which shows as per the interim order passed by the Hon'ble Apex Court dated 29.09.2011 the defendant is paying only user charges of Rs.10,000/- p.m. to the plaintiff and this is reflected in the account statement and in all he has paid Rs.14,40,000/-.
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44. As per my findings on aforesaid issues, it is established that possession of the defendant over the suit property since 2011 is as an unauthorized occupant. So under such circumstances the plaintiffs are entitled for damages. In the absence of any contrary evidence relying on Ex.P.10 and Ex.P.11 this Court proceeds to determine the damages claimed by the plaintiff. As per EX.P.10 the lease deed dated 27.12.2017, which is with respect to a shop which is about 5 to 6 properties from the schedule property on the very same road, wherein the rent fixed is Rs.1,27,500/- p.m. for 1700 sq. ft. In addition to that, as per EX.P.11 the very same property as on 25.05.2023, was rented out at Rs.1,40,000/- p.m. along with applicable GST under the registered lease deed dated 29.03.2023. The same is subject to enhancement at the rate of 5% p.a. As per the evidence of PW 1 and the documents relied upon her, the prevailing rate of rent in the said locality of the similarly situated properties is between Rs.75/- to Rs.90/- 54
O.S. No.2953/2011 per sq. ft. as on the year 2017 and 2023 respectively with enhancement at the rate of 5% every year. The property mentioned in Ex.P.10 and Ex.P.11 are within the same vicinity were the suit property is situated and hence, reliance is placed upon the said documents. As per Ex.P.10 and Ex.P.11, the rate of rent is fixed at Rs.75/- per sq. ft. and Rs.83/- per sq. ft. respectively for the period 2017- 2022 and 2023 - 2024 respectively for an total extent of Rs.1700/- per sq. ft. with 5% enhancement ever year. So the said area which is covered under Ex.P.10 and Ex.P.11 can be treated on par with the suit property in the matter for fixation of damages. The plaintiffs have not produced any document to prove the prevailing rent since 2011 o 2017. Hence relying on Ex.P.10 and Ex.P.11, this Court has determined damages on an average basis at the rate of Rs.65/- per sq. ft. from the period 2011 till delivery of vacant possession of suit property. Thus the plaintiff is entitled for the damages at the rate of Rs.65/- per sq. ft. 55
O.S. No.2953/2011 p.m. for the unauthorized use and occupation of the plaintiff from March 2011 till delivery of vacant possession of suit property. Further, the amount of Rs.14,40,000/- paid by the defendant towards user charges shall be deducted from the total damages to be paid to the plaintiff. Accordingly, this Court proceeds to answer Issue No.6 Partly in the Affirmative.
45. ISSUE NO.7 :: In view of my findings on issues No.1 to 6, this Court proceeds to pass the following;
ORDER The suit of the plaintiffs is decreed with costs.
The defendant is hereby directed to quit, vacate and handover the vacant possession of the suit property within two months from the date of decree.
Further the plaintiff is entitled for damages at the rate of Rs.65/- per sq. ft.
p.m. from March 2011 till delivery of
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vacant possession of suit property.
Further, the amount of Rs.14,40,000/- paid by the defendant towards user charges shall be deducted from the total damages to be paid to the plaintiff.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed by her, transcription corrected and then pronounced by me in the open Court on this 06 th day of January, 2025.) (VEENA N.) XL ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
ANNEXURE I. LIST OF WITNESSES EXAMINED ON BEHALF OF:
(A) PLAINTIFFS SIDE ::
P.W.1 :: G.R.Parvati
(B) DEFENDANT SIDE ::
D.W.1 :: Surendra P.A.
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II. LIST OF DOCUMENTS EXHIBITED ON BEHALF OF:
(A) PLAINTIFFS SIDE :
Ex.P.1 :: Certified copy of Lease Deed dated 08.02.1971 Ex.P.2 :: Office copy of the legal notice Ex.P.3 :: Postal receipt Ex.P.4 :: Postal acknowledgment Ex.P.5 :: COP receipt Ex.P.6 :: Certified copy of the judgment passed in RFA.
No.821/2000 Ex.P.7 :: Copy of the order passed by the Hon'ble Apex Court in C.A. No.8317/2011 Ex.P.8 :: Bank statement for the period from 01.04.2014 to 08.07.2024 Ex.P.9 :: Ledger statement of the payment made by the defendant from 16.07.2013 t 19.05.2024 Ex.P.10 :: Digitally certified copy of registered Lease Deed dated 27.12.2017 Ex.P.11 :: Digitally certified copy of registered Lease Deed dated 29.03.2023 Ex.P.12 :: Printout of the suit properties, which are similarly situated to the property along with google location together marked Ex.P.13 :: Printout of the google location and the suit schedule property together marked 58 O.S. No.2953/2011 Ex.P.14 :: Certificate U/s.65-B (B) DEFENDANT SIDE ::
Ex.D.1 :: Special Power of Attorney dated 14.10.2024 (VEENA N.) XL ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
Digitally
signed by
VEENA VEENA N
Date:
N 2025.01.10
12:01:37
+0530