Bangalore District Court
M.G.Ramamurthy vs Smt.Pushpa on 2 September, 2015
IN THE COURT OF THE XII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH.No.27), AT BANGALORE.
PRESENT:SRI.BHAIRAPPA SHIVALING NAIK, B.Com.,LL.B.(Spl),
XII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
DATED: THIS THE 2ND DAY OF SEPTEMBER 2015
O.S.No.8025/2009
Plaintiff:- M.G.Ramamurthy,
S/o. late Sri.M.Ganganarasaiah,
Aged about 58 years,
No.426 'B', New No.56/1,
9th Main Road, Vijayanagar,
Bangalore-560 040.
(By M/s.Sundareswar and
Ramdas Advocates)
-VS-
Defendants:- Smt.Pushpa,
Wife of Shivanna,
(Since Dead represented by
Her Legal Representatives)
(a) R.Shivanna,
Aged about 68 years,
Father's name not known
to plaintiff & husband of
deceased defendant
2 O.S.No.8025/2009
(b) S.Nagaraj,
Aged about 42 years,
Son of Sri.R.Shivanna,
(c) S.Dayashankar,
Aged about 41 years,
Son of Sri.R.Shivanna,
(d) Smt.N.Nalini,
Major in age
Wife of S.Nagaraj,
(e) Smt.V.Kavitha,
Major in age,
Wife of S.Dayashankar,
All the defendants
(a) to (e) are
Residing at No.316,
5th Main, Pipeline,
Srinagar,
Bangalore-560 050.
( Defts.(a) to (e)
Exparte Advocate)
Date of Institution of the suit : 16/11/2009
Nature of the suit : Ejectment
Date of commencement of
recording of the evidence : 08/11/2011
Date on which the Judgment was
pronounced : 02/09/2015
3 O.S.No.8025/2009
Total Duration Years Months Days
: 05 09 17
(BHAIRAPPA SHIVALING NAIK)
XII Addl. City Civil & Sessions Judge,
Bangalore
J U D G M E N T
This is a suit filed by the plaintiff for ejectment and recovery of arrears of rent and mesne profits against the defendant.
2. The case of the plaintiff is that the plaintiff is the owner of immovable non-residential premises bearing No.426- B, new No.56/1, 9th Main Road, Vijayanagar, Bengaluru - 560040. The said property consists of various portions divided into shops/office spaces. The defendant being desirous of taking on Lease a portion of the aforesaid property for her business had approached the father of the plaintiff for the same and the plaintiffs' father late Sri.Gagnanarasaiah acceded to the defendants' request and leased out about 480 Sq.ft. (carpet area) shop No.FF-1, 1st floor of the aforesaid building for the purpose of carrying 4 O.S.No.8025/2009 business of gifts and greetings card. The portion leased to the defendant is more fully described in the schedule annexed to the plaint and the same is referred as schedule premises in this suit.
3. The plaintiff has further stated that the Lease commenced from June 2002 on a monthly rent of Rs.3000/- There was no fixed period or term of Lease. The parties had agreed that rent was to be enhanced at the rate of 15% every 3 years over and above the then existing rent. Then after demise of the father of the plaintiff on 26.4.2003 the defendants attorned tenancy under the plaintiff and paid rent after few months thereafter. Subsequently the defendant has not paid the rent to the plaintiff inspite of repeated requests. The tenancy is from month to month as per English Calendar. The plaintiff not being desirous of continuing the monthly tenancy in favour of the defendant, issued a notice dated.10.7.2009 through counsel terminating the tenancy with effect from 31.7.2009 and called upon the defendants to vacate the schedule premises to the plaintiff on 1.8.2009. The defendant has not complied with the demand made by the plaintiff inspite of due service of that 5 O.S.No.8025/2009 notice. The defendants continued occupation of the schedule premises unauthorisedly and unlawfully.
4. The plaintiff has computed the arrears of rent from July 2003 till the date of termination of tenancy as reproduced below:-
(a) For the period July 2003 till
May 2005 at the rate of
Rs.3000 p.m.(23 months) 69,000.00
(b) For the period June 2005 till
May 2008 at the rate of
Rs.3,450 p.m.(24 months) 8,2,800.00
(c)
For the period June 2008 till
September 2009 at the rate of 63,480.00 Rs.3,967.50 p.m.(16 months) TOTAL 2,11,312.50
5. In view of law of limitation, the plaintiff is limiting her claim for arrears of rent for the period September 2007 till September 2009 amounting to Rs.94530/- (nine months) at the rate of Rs.3,450/- p.m. and 16 months at the rate of Rs.3,967.50 p.m. The defendant is also liable to pay mesne profits/damages for her unauthorised occupation of the schedule premises from 1.8.2009 till the date of delivery of vacant possession of the same to the plaintiff. The location 6 O.S.No.8025/2009 of the said premises enhances the value and the commercial usufruct for the schedule property. The prevailing rate of rate for similar property in the vicinity of the area is atleast Rs.20 Sq. foot and the defendant is liable to pay mesne profits at the rate of Rs.9,600/- p.m from 1.8.2009 to the date of delivery of possession of the schedule premises. The defendant is also liable to make good the same along with interest thereon at 18% p.a. accruing thereon month after month till the date of payment. The plaintiff undertakes to pay the difference in Court Fees if any on the sum mesne profits. Hence the plaintiff is constrained to file the suit to direct the defendant to quit, vacate and deliver the schedule premises and to pay a sum of Rs.94,530/- towards arrears of rent along with interest at the rate of 18% p.a. accruing thereon month after month till the date of payment and also sought for awarding mesne profits at the rate of Rs.9600/- p.m. from 1.8.2009 onwards till the date of payment along with interest at the rate of 18% accruing thereon month after month or in the alternative, direct an enquiry under Order.XX, Rule 12 of CPC to enquire and quantify the amount of mesne profits damages payable by the defendant for her 7 O.S.No.8025/2009 unauthorised occupation of the schedule premises from the date of suit, to the date of delivery of vacant possession of the same to the plaintiff.
6. In response to the suit summons, the defendant has appeared and filed her written statement wherein the defendant has denied each and every allegations made in the plaint as false. In turn, it is submitted that the suit is not maintainable. The suit not properly valued. There is no cause of action to file the suit. The plaintiff has no right to terminate the tenancy. In turn, the defendant has submitted that M.Ganganarasaiah entered into Lease Deed dated.29.5.2002 in respect of the schedule premises with the defendant herein. Under the said Lease Deed the schedule premises was let out to the defendant to carry out the business under the name and style "Greeting World". Subsequent to the Lease Deed, the defendant herein set up her business in the schedule premises and she being unable to manage the said business due to her old age ailments, authorised Smt.Nalini.N by executing a General Power of Attorney dated.10.2.2003 who is none other than her daughter-in-law to look after the said business and to do all 8 O.S.No.8025/2009 acts, deeds and things in respect of the same. Thereafter Smt.Nalini.N the power of attorney holder of the defendant started to manage the business set up by the defendant in the suit schedule premises. When such is the case, M.Ganganarasaiah entered into a fresh Lease Deed on 11.03.2003 in respect of the schedule premises with the defendant wherein the defendant in the Lease Deed dated.11.03.2003 has been represented by her power of attorney holder Smt.Nalini.N.
7. The defendant has further submitted that under the Lease Deed dated.11.3.2003, M.Ganganarasaiah received a sum of Rs.18,00,000/- and let out the premises to be enjoyed by the defendants to turn the business in the name and style of Greeting World without rent for a period of 25 years. The defendant agreed to not to charge any interest on the Lease amount and the Lease Deed entered between the plaintiff and defendant has cancelled. That apart M.Ganganarasaiah also permitted the use of the premises by Nalini.N the General Power of Attorney holder of the defendant and her husband Nagaraju.S to carry out the 9 O.S.No.8025/2009 business in the schedule premises on behalf of the defendant.
8. The defendant has further pleaded that the Lease Deed dated.11.03.2003 is for a period of 25 years and that Lease is a perpetual Lease. Under the said circumstances, the plaintiff has no right to terminate the tenancy and that apart the plaintiff has no right to terminate the tenancy without refunding the Lease amount of Rs.18/- Lakhs at 18% interest p.a. The notice issued by the plaintiff is not in consonance with the provisions of Sec.106 of the Transfer of Property Act. The defendant was suitably replied the legal notice dated.10.7.2009 issued by the plaintiff through reply notice dated.25.7.2009. The 25 years Lease period expires on 10.3.2028. Hence the Lease was in force when the legal notice was issued and there was no cause of action. The suit was premature as the Lease period was subsisting and accordingly the tenancy is not lawfully determined which itself disentitles the plaintiff form seeking the relief of possession at the hands of this court. The plaintiff is an utter stranger to the suit schedule property and also the defendant. The plaintiff is not the 10 O.S.No.8025/2009 owner of the immovable non-residential premises as described in the schedule. The plaintiff has no legal right to seek arrears of rent. The question of payment of arrears of rent by the defendant does not arise by virtue of terms and conditions under the Lease Deed dated.11.03.2003.
9. The defendant has further pleaded that the suit schedule property is the subject matter of O.S.No.1848/2007 pending on the file of the Addl.City Civil Judge, Bengaluru wherein the plaintiff is also one of the party in that suit. This fact has been deliberately suppressed by the plaintiff for the best reasons known to him.
10. The defendant has got amended the written statement and incorporated para-14(a) stating that Smt.Hemavathi wife of plaintiff's brother has filed a suit for partition in O.S.No.1848/2007 pending on the file of City Civil Court, Bengaluru in respect of joint family properties as against the plaintiff and her sister-in-law. The suit schedule premises is also the subject-matter of the said suit. the defendant herein has not been made as party in the said suit. 11 O.S.No.8025/2009 In view of the pendency of the aforesaid suit and having regards to the fact that the suit schedule premises is the subject-matter of the said suit, the plaintiff has no legal right to determine the tenancy of the defendant and thereby to institute a suit claming for possession. The right and ownership of the plaintiff and his share in respect of the suit schedule premises is yet to be decided and demarcated. The right to sue if any to the plaintiff has not been matured as on the date of institution of the suit. The plaintiff is making attempt to dispossess the plaintiff from the suit schedule property forcibly by hiring goondas and rowdy elements which is unlawful and the same is uncalled for during the pendency of this proceedings. Therefore, the defendant has prayed to dismiss the suit with exemplory costs.
11. On the basis of the pleadings the following issues have been formulated on 10.01.2011:-
ISSUES
1. Whether the plaintiff proves the jural relationship of landlord and tenant?12 O.S.No.8025/2009
2. Whether the plaintiff proves that the defendant is due in arrears of rent?
3. Whether the notice of termination is valid?
4. Whether the defendant proves that the Lease is a perpetual Lease for the reasons shown in para No.9 of written statement?
5. Whether the plaintiff is entitled for mesne profits at the rate of Rs.9,600/- per month?
6. What order or decree?
12. In order to substantiate his claim, the plaintiff was examined as P.W.1 and adduced documentary evidence from Ex.P1 to Ex.P5. Meanwhile, the General Power of Attorney holder of the defendant i.e., the defendant (b) (son of deceased defendant) was examined as D.W.1 on 11.10.2012. It is relevant to note that at the stage of further examination-in-chief of D.W.1, the defendant was expired. 13 O.S.No.8025/2009 The plaintiff has taken steps against the legal representatives of the deceased defendant i.e., defendant
(a) to (e). Inspite of repeated issue of notice and substitute service of notice, none of the legal representatives has come forward to appear. Due to default on the part of the legal representative of the defendant, incomplete evidence of D.W.1 on record is ordered to be expunged.
13. I have heard the counsel for the plaintiff. Perused the evidence on record.
14. My findings on the above said issues are as under:
Issue No.1: In the Affirmative
Issue No.2: In the Affirmative
Issue No.3: In the Affirmative
Issue No.4: In the Negative
Issue No.5: Partly in the Affirmative
Issue No.6: As per final order
for the following:-
/REASONS/
15. Issues No.1 to 4:- Since these issues are interlinked with each other, in order to avoid repetition of discussions, are taken up together for consideration. 14 O.S.No.8025/2009
16. The plaintiff has filed the suit for ejectment, recovery of arrears of rent and mesne profits as the suit schedule premises was let out by the father of the plaintiff on monthly rent of Rs.3000/- p.m. and there was no fixed term of Lease/tenancy between the parties. The parties had agreed that rent was to be enhanced at the rate of 15% every three years over and above the then existing rent. According to plaintiff, there is no subsisting written Lease Agreement/Deed entered in between the parties. After the demise of father on 26.4.2003, the defendant attorned the tenancy under the plaintiff and paid rent for a period of few months, but subsequently failed to pay the rent. The plaintiff not being desirous of continuing the monthly tenancy in favour of the defendant, issued a notice dated.10.7.2009 through counsel, terminating the tenancy of the defendant with effect from 31.07.2009 and called upon the defendant to quit and deliver vacant possession of the schedule property to the plaintiff on 01.08.2009. The plaintiff is claiming arrears of rent at enhanced rate as computed in para-5 of the plaint for the period from September 2007 to September 2009 of Rs.94,530/- and also 15 O.S.No.8025/2009 claimed future mesne profits on the prevailing rate of rent for similar property in the vicinity of the area at the rate of Rs.9,600/- p.m. from 1.08.2009 to the date of delivery of possession with interest at the rate of 18% p.a. accruing thereon month after month till date of payment.
17. On the other hand, the defendant has not only denied the claim of the plaintiff made in respect of the suit schedule premises against her, but also set up a defence that the father of the plaintiff M.Ganganarasaiah entered into Lease Deed dated.29.5.2002 in respect of the schedule premises. Under the said Lease Deed, now the General Power of Attorney holder and daughter-in-law of defendant by name Nalini is running business under the name and style "Greetings World". Besides, M.Ganganarasaiah entered into a fresh Lease Deed dated.11.03.2003 in respect of the suit schedule premises that the defendant through her said power of attorney holder under the said Lease Deed M.Ganganarasaiah received a sum of Rs.18 Lakhs as Lease amount and let out the premises to run the business of the defendant without rent for a period of 25 years. The 16 O.S.No.8025/2009 defendant agreed not to charge any interest on the amount of Rs.18 lakhs. As such, the Lease is a perpetual Lease and the plaintiff has no right to terminate the tenancy without refunding the amount of Rs.18 Lakhs with interest at the rate of 18% p.a. The lease was in force when the legal notice was issued. There was no cause of action and the suit was prematured as the Lease period was subsisting. The plaintiff is not only a stranger to the suit schedule property, but also to the defendant. The plaintiff is not the owner of the immovable non-residential premises as described in the schedule. The plaintiff has no legal right to seek arrears of rent. Besides, the suit schedule property is the subject-matter of O.S.No.1848/2007 pending on the file of Addl. City Civil Judge, Bengaluru. The plaintiff has been deliberately suppressed this fact before the court. The defendant has not been made as a party to the said partition suit filed by Smt.Hemavathi, wife of plaintiff's brother. The suit of the plaintiff is not maintainable.
18. The plaintiff is relying on his oral evidence coupled with documentary evidence on record in support of 17 O.S.No.8025/2009 his claim. P.W.1 has reiterated the averments made in the plaint in the course of his examination-in-chief by way of an affidavit. It is established from the cross-examination of P.W.1 that the father of the plaintiff had four children including the plaintiff. The plaintiff has not produced the Lease Agreement which commences from June 2002 on monthly rent of Rs.3000/-. P.W.1 does not know whether his father had executed a Lease Deed dated.29.5.2002 in favour of the defendant. However P.W.1 has admitted that his father was looking after all the affairs of their family including the rental transaction. P.W.1 has admitted that the wife of his brother had field a suit for partition against the other children and his father including the suit property and the same is pending. Neither the plaintiff nor his father was issuing rent receipts to the defendants. P.W.1 has also shown ignorance about the fact that his father had received Rs.3,25,000/- on 29.5.2002 and issued a receipt. P.W.1 has stoutly denied that on 11.3.2003 his father had executed a Lease Deed in favour of Smt.Nalini and received Rs.18 Lakhs and the duration of Lease was for 25 years and in view of 18 O.S.No.8025/2009 receipt of Rs.18 Lakhs, the defendant was not paying any rentals to them.
19. It is evident from the further cross-examination of P.W.1 that, plaintiff has not shown measurement of the premises in the schedule. The counsel for the defendant has confronted the certified copy of order sheet, plaint valuation slip, written statement Annexure - A to G and valuation slip filed by the 1st defendant in OS.No.1848/2007 and P.W.1 has admitted the same and the said documents are marked as Ex.D1 to Ex.D6 respectively. It is an admitted fact that the said suit for partition among the plaintiff and his family members is still pending. As admitted by P.W.1, he is paying taxes in the name of his father. P.W.1 has identified the signature of his father on the receipt confronted to him by the counsel for the defendant and the same is got marked as Ex.D7. However, P.W.1 could not identify the alleged signature of his father on the alleged Lease Deed dated.11.03.2003 when confronted to him by the counsel for the defendant. Besides, P.W.1 has denied the execution of Lease Deed dated.29.5.2002 by his father. P.W.1 has also 19 O.S.No.8025/2009 stoutly denied that as per the Lease Deed dated.11.3.2003, the duration of the Lease period was for 25 years and his father had received Rs.18 lakhs as Lease amount and there was no rent for 25 years in view of the alleged receipt of Rs.18 lakhs. P.W.1 has clearly admitted that the wife and children of his deceased brother and his two sisters and himself are the co-owners of the suit schedule shop.
20. As noted supra, during the lifetime of defendant her General Power of Attorney holder was got examined partly, but after the death of the defendant, none of her legal representatives has appeared and adduced evidence in support of their defence. Infact, the General Power of Attorney holder is nothing but defendant-1(b) now on record. But for the reasons best known to him, he did not care to adduce evidence. As such, the incomplete evidence of D.W.1 cannot be looked into. Except the cross-examination of P.W.1, nothing is placed on record to disbelieve the evidence adduced by the plaintiff.
20 O.S.No.8025/2009
21. The plaintiff has not produced any other documentary evidence except the legal notice issued to the defendant and reply notice of the defendant at Ex.P1 and Ex.P3 in support of his claim. Ex.D4- Ration card and Ex.D5 Identity Card issued by Election Commission of India disclose that M.Ganganarasaiah is the father of plaintiff. The plaintiff, his father and other family members were living together at No.426/B, 9th Main, Vijayanagar, Bengaluru.
22. It is an admitted fact that one Hemavathi and her children have filed O.S.No.1848/2007 against the plaintiff herein and others for partition in respect of their joint family properties including the suit schedule premises on 02.03.2007 and the said suit was at the stage of evidence on behalf of the plaintiff on 7.3.2011 as it is evident from the order sheet in the said suit. The plaintiff herein as 1st defendant in that suit has filed his written statement by setting up a counter claim and prayed to pass a preliminary decree as prayed in the written statement by way of counter claim in respect of the suit schedule property as described in the plaint, as not only claimed item No.1 and 2, but also 21 O.S.No.8025/2009 sought for rendering true and proper accounts for the monies received by the plaintiff, defendant No.2 and defendant No.3 and utilized from out of joint family corpus and alternatively to grant set off or adjustment for the said sums of money towards their respective shares in the asset of late Sri. M.Ganganarasaiah. According to defendant, the plaintiff herein as 1st defendant in the said suit has sought for counter-claim/set-off in respect of the expenses incurred by him towards the joint family fixed deposits in the name of his father as well as rent received from the item No.1 of property consisting of ground floor and 1st floor and rent received from the item No.2 of property as per Annexure-A to G together got marked as Ex.D5 in the course of cross-examination of P.W.1 by the counsel for the defendant. Accordingly Annexure-F denotes that the defendant herein is the tenant in the portion of premises in the 1st floor. No rent was fixed for that premises under the occupation of the defendant. The column showing rent received from the party is kept blank so far the schedule premises in possession of the defendant are concerned. It can be inferred from the Annexure-F that neither the rent 22 O.S.No.8025/2009 was fixed nor received by the plaintiff from the defendant. P.W.1 has only admitted the signature of his father on receipt at Ex.D7. When the plaintiff has denied the receipt of Rs.3,25,000/- under the said receipt and then the burden was upon the defendant to prove due execution of that receipt so as to take into consideration. The said receipt at Ex.D7 discloses that the said amount of Rs.3,25,000/- was received by M.Ganganarasaiah from defendant without any interest towards the deposit for his building which was given for rent from 29.5.2002.
23. On scrutinising the evidence on record, it is proved before the court that the father of the plaintiff M.Ganganarasaiah was the owner of the non-residential premises baring No.426-B, new No.556/1, 9th Main Road, Vijayanagar, Bengaluru- 40 which consists of various portions divided into shops/office spaces. The father of the plaintiff leased out the suit schedule premises to the defendant for running her business and the Lease commenced from June 2002. According to plaintiff, neither the Lease Agreement nor Lease Deed was entered into in between the father of 23 O.S.No.8025/2009 the plaintiff and defendant. As per the oral Agreement, monthly rent was Rs.3000/- at the time of commencement of the tenancy and the rent was enhanced at the rate of 15% every 3 years over and above the then existing rent as computed by the plaintiff in his plaint. The father of the plaintiff died on 24.06.2003. Thereafter the defendant was paid rent for a few months, but committed default in paying the rent due to which, the plaintiff was constrained to terminate the tenancy by issuing a notice dated.10.7.2009. Whereas the defendant has taken up a mere defence that the father of the plaintiff entered into a Lease Agreement dated.29.5.2002 in respect of the schedule premises with the defendant. The defendant has not produced the said Lease Deed so as to take into consideration. Further the defendant has merely set up defence that she authorised her daughter-in-law Smt.Nalini.N by executing General Power of Attorney dated.10.2.2003 for running the said business etc., But that power of attorney is also not produced before the court. According to the defendant, the father of the plaintiff entered into a fresh Lease Deed on 11.3.2003 in respect of the schedule premises with the defendant 24 O.S.No.8025/2009 through her said power of attorney. The defendant has produced the unregistered Lease Deed dated.11.03.2003 purported to have been executed by M.Ganganarasaiah in favour of General Power of Attorney holder of defendant. Infact, the defendant has been very much relying on the alleged terms stipulated in the unregistered Lease Deed dated.11.3.2003 in support of her defence so as to falsify the claim of the plaintiff made in respect of the suit schedule premises as against her. As per the terms of alleged unregistered Lease Deed dated.11.3.2003, the tenancy period was commenced from 11.03.2003 for a period of 25 years and the defendant paid Lease amount of Rs.18 Lakhs subject to various condition recited therein as averred in the written statement. The defendant has purposely and deliberately not at all tendered the unregistered Lease Deed dated.11.3.2003 for the reasons best known to her. The said unregistered Lease Deed executed for a period of 25 years would required not only to be registered under Sc.17(1)(b) of Indian Registration Act, but also required to be impounded after collecting the deficit duty with penalty as provided U/s. 33 and 34 of the Karnataka Stamp Act. Looking from 25 O.S.No.8025/2009 any angle, the unregistered Lease Deed dated.11.3.2003 for a period of 25 years is inadmissible in evidence and it cannot be looked into. It is a fit case to draw an adverse inference against the defendant for with-holding the vital documents pertaining to the Lease between created between the father of the plaintiff and defendant.
24. It is proved from the cross-examination of P.W.1 that the father of the plaintiff died leaving behind his children the plaintiff, M.G.Gangambika, late M.G.Narasimharaju, M.G.Dakshayani and the said M.G.Narasimharaju pre-deceased the father of the plaintiff. It is a fact that O.S.No.1848/2007 is filed by the wife and children of late M.G.Narasimharaju against the plaintiff herein and his sisters for partition and serrate possession in respect of joint family properties including the suit schedule premises. It is also the fact that defendant herein is not a party to the said suit still pending for adjudication. The plaintiff being male member in the Hindu-Undivided family is filed this suit in respect of co-parcenary property in the occupation of the defendant based on the tenancy/Lease 26 O.S.No.8025/2009 created during the life-time of his father with the defendant.
25. It is an undisputed fact that the plaintiff, his sisters, wife and children of his deceased brother have inherited the properties left by his father. Immediately after the death of father, the plaintiff along with other legal representatives of deceased M.Ganganarasaiah have stepped into the shoes of lessor so far the tenancy created by his father with the defendant. It is settled principle of law that in the case of joint lessors, the notice by one co-lessor is sufficient to determine the tenancy as to all. As such, the notice of termination of tenancy issued by the plaintiff to the enures for the benefit of the successor-in-title of the lessor includes the person in whom reversion is vested . A co-landlord who is receiving the rent for the time being is landlord; as such the plaintiff is entitled to sue the defendant for eviction.
26. The defendant has not at all denied or disputed the Lease created between the father of the plaintiff and herself. Even an attornment of tenancy after the death of 27 O.S.No.8025/2009 father of the plaintiff by the defendant is also not challenged by the defendant. It is very much relevant to note here that the plaintiff got issued legal notice as per Ex.P1 thereby brought to the notice of defendant about the tenancy created between the father of the plaintiff and defendant as well as the monthly rent and other terms of the tenancy in respect of the schedule premises. It reflects from the reply notice dated.25.7.2009 issued by the defendant to the counsel for the plaintiff at Ex.P3, it does not disclose the material fact as disclosed in her written statement. The defendant has merely denied each and every allegation made in the notice of termination of tenancy issued by the counsel for the plaintiff. Besides, the defendant has stated that she is the tenant under M.Ganganarasaiah and that apart, there is valid written Agreement between them. It can be inferred from the inconsistent pleading of The reply notice does not disclose the unregistered Lease Deed dated.11.03.2003 or the receipt at Ex.D7 in her reply notice so as to take into consideration. The defendant in her written statement has set up imaginary terms of Lease Deed after thought. In the 28 O.S.No.8025/2009 absence of cogent and convincing evidence, the baseless defence so set up by the defendant cannot be believed. When the defendant was admittedly lessee or tenant under the father of the plaintiff during his lifetime and the tenancy of the defendant in respect of the suit schedule premises has been continued with the consent of plaintiff and other co-lessors and then the defendant became tenant at sufferance from the date of termination of tenancy by servicing mandatory notice as required u/s.106 of Transfer of Property Act.
27. The counsel for the plaintiff has placed his reliance on a decision reported in AIR 1972 SC 819 in Bhawanji Lakhamshi and Otrs. Vs. Himatlal Jamnadas Dani and others wherein the Hon'ble Supreme Court of India has held that:
"The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term with the 29 O.S.No.8025/2009 consent of the landlord and a tenant doing so without his consent. The former is a tenant at sufferance in English Law and the latter a tenant holding over or a tenant at will. In view of the concluding words of Section 116 of the Transfer of property Act, a lessee holding over is in a better position than a tenant at will. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplated is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise. In Kai Khushroo Benzonjee Capadia v. Baj Jerbai Hirjibhoy Warden, 1949 FCR 262 = (AIR 1949 FC 124), the Federal Court had occasion to consider the question of the nature of the tenancy created under Section 116 of the Transfer of Property Act and Mukherjea.J. speaking for the majority said, that the tenancy which is created by the "holding over" of a lessee or under-lessee is a new tenancy in law even though many of the terms of the old lease might be continued in it, by implication; and that to bring a new tenancy into existence, there must be a bilateral act. It was further held that the assent of the landlord which is founded on 30 O.S.No.8025/2009 acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it. Patanjali Sastri.J., in his dissenting judgement, has substantially agreed with the majority as regards the nature of the tenancy created by Section 116 of the Transfer of Property Act, and that is evident from the following observations:-
"Turning now to the main point, it will be seen that the section postulates the lessee remaining in possession after the determination of the lease which is conduct indicative, in ordinary circumstances, of his desire to continue as a tenant under the lessor and implies a tacit offer to take a new tenancy from the expiration of the old on the same terms so far as they are applicable to the new situation, and when the lessor assents to the lessee so continuing in possession, he tacitly accepts the latter's offer and a fresh tenancy results by the implied agreement of the parties. When, further, the lessee in that situation tenders rent and the lessor accepts it, their conduct raises more readily and clearly the implication of an agreement between the parties to create a fresh tenancy."
Mere acceptance of amounts equivalent to rent by a landlord from a tenant in possession after a lease had been determined, either by efflux of time or by notice to quit and who enjoys statutory immunity from eviction except on well defined grounds as in the Act, 31 O.S.No.8025/2009 cannot be regarded as evidence of a new agreement of tenancy.
28. In AIR (39) 1952 SC 23 in Ram Kumar Das Vs. Jagdish Chandra Deo Dhabal Deb and another the Hon'ble Supreme Court has held as under:-
"that the tenancy created by implication of law in favour of the defendant should be held to be from month to month since its inception in 1924. The tenancy not being for manufacturing or agricultural purpose it would be regarded as a tenancy from month to month under S.106, unless there was a contract to the contrary. The stipulation as to payment of annual rent would no doubt raise a presumption that the tenancy was from year to year but being contained in an inoperative document could not come in the way of raising a presumption under S.106. A Lease for one year certain could not be inferred from the payment of annual rent because to do so would be to substitute a new Agreement for the parties which they have intended to do.
29. It is settled principle of law that a Lease is void in a case where registration is compulsory u/s.107 of the Transfer of Property Act. If registration of a Lease is compulsory, the Lease can only be made by registered 32 O.S.No.8025/2009 instrument, and if not so made is void altogether. IF the tenant is in possession under an unregistered Lease and the landlord recognises his right by acceptance of rent, there is a presumption of a Lease under Sec.106, and a notice to quite before eviction is necessary. But though the unregistered Lease is void as a Lease the person in possession under such a document may put it in evidence to protect his possession under Sec.53A. Though unregistered Lease is void as a permanent Lease, it can be deemed to be a monthly Lease terminable by 15 days notice as has been done in the instant case. Sec.106 enacts a rule for the duration of Leases in cases not governed by local law, contract or usage and applies to a case where no period is agreed between the parties and where the lease being unregistered cannot be looked as to ascertain the agreed period. The presumption as to the period is not rebutted by the fact that the rent is paid at different periods. Sec.106 applies when the tenant is in possession without evidence of the terms of the letting and also in cases of an implied demise where entry creates a tenancy at will, converted by payment of rent into a tenancy from year to year or month to month according to the nature 33 O.S.No.8025/2009 of the holding and such tenancy is terminable by 15 days notice. A stipulation that the rent would be payable monthly would raise a presumption that the tenancy was from month to month. Where a tenancy is created and the lessees enter into possession on payment of rent to the lessors, and the purpose of the tenancy is neither agricultural nor manufacturing, such Lease may be taken to be a Lease from month to month.
30. Looking from any angle from the unchallenged evidence adduced by the plaintiff, it is proved before the court that the plaintiff is the co-lessors and the defendant is tenant under the legal representatives of deceased tenant. The said partition suit in O.S.No. 1848/2007 is nothing to do with the instant suit filed by the plaintiff for and on behalf of co-owners for ejectment and arrears of rent as against the defendant. In the absence of rebuttal evidence, the arrears of rent as computed by the plaintiff being quite reasonable it to be awarded. The plaintiff has duly terminated the tenancy of defendant in respect of the suit schedule property by issuing a notice in accordance with 34 O.S.No.8025/2009 provisions as contemplated u/s.106 of Transfer of Property Act. I do not find any force in the baseless plea of the defendant that the Lease is a perpetual Lease. If the defendant would have entered into a registered Lease Deed with the father of the plaintiff in respect of the suit schedule premises, then the matter would have been different. The alleged unregistered Lease Deed being inadmissible in evidence, cannot be gain any sort of effect so far imaginary defence of the defendant. Hence without much discussion, I answer Issue Nos.1 to 3 in the Affirmative and Issue No.4 in the Negative.
31. Issue No.5:- The plaintiff has claimed mesne profits on account of unauthorised occupation of the defendant of the schedule premises since 1.8.2009 till the date of delivery of vacant possession of the schedule premises to the plaintiff. The location of the said premises enhanced the value on the commercial usurp of the schedule property. The prevailing rate of rent of the similar property in the vicinity of the area is at Rs.20 per square foot and the defendant is liable to pay rent at the rate of 35 O.S.No.8025/2009 Rs.9600/- p.m. with interest thereon at the rate of 18% p.a. The defendant has merely denied the claim of the plaintiff either ejectment or arrears of rent or mesne profits as the plaintiff is a stranger to the suit property as well as the defendant and the plaintiff has no right to seek any relief in respect of the suit schedule premises against the defendant. P.W.1 has reiterated the averments made in the plaint in the course of his examination-in-chief. Nothing has been elicited from the oral evidence of P.W.1 so far determination/assessment of mesne profits. On taking into consideration the rate of rent as per oral Agreement, the mesne profits as claimed by the plaintiff is exorbitant. In the absence of material evidence, it is not proper to award mesne profits as claimed by the plaintiff. However the plaintiff is entitled for mesne profits from the date of suit, to the date of delivery of vacant possession of the schedule premises from the defendant at reasonable rate which requires to be adjudicated by a separate enquiry under Order. XX, Rule 12 of CPC. Hence I answer Issue No.5 partly in the Affirmative.
36 O.S.No.8025/2009
32. Issue No.6:- In view of my findings on the issues No.1 to 3 and the reasons stated therein, in the result, I proceed to pass the following:-
ORDER The suit of the plaintiff is decreed partly with costs as under:-
The defendant is directed to quit and deliver vacant possession of the suit schedule premises to the plaintiff within three months from the date of this order.
Further the defendant is liable to pay a sum of Rs.94,530/- towards the arrears of rent along with interest at the rate of 12% p.a. accruing thereon month after month till the date of payment.
There shall be a separate enquiry under Or.XX, Rule 12 of CPC 1908 for determining the mesne profits/damages payable by the defendant for her unauthorised occupation of suit schedule premises from the date of suit, to the date of delivery of vacant possession of the same to the plaintiff.37 O.S.No.8025/2009
Draw up a decree accordingly.
(Dictated to the Judgment Writer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 2nd day of September 2015.) (BHAIRAPPA SHIVALING NAIK) XII Addl. City Civil & Sessions Judge, Bangalore A N N E X U R E I. List of witnesses examined on behalf of:
(a) Plaintiff' side :
P.W.1: Sri.M.G.Ramamurthy
(b) Defendant's side :
D.W.1: Sri.Nagaraj
II. List of documents exhibited on behalf of :
(a) Plaintiff' side :
Ex.P1: Legal notice dated.10.7.2009
Ex.P2: Postal acknowledgment
Ex.P3: Reply dated.27.7.2009
Ex.P4: Ration card
Ex.P5: Voter I.D.
38 O.S.No.8025/2009
(b) For defendant's side:-
Ex.D1: Certified copy of order sheet in O.S.No.1848/2007 Ex.D2: Certified copy of plaint filed in O.S.No.1848/2007 Ex.D3: Certified copy of valuation slip in O.S.No.1848/2007 Ex.D4: Certified copy of counter claim filed in O.S.No.1848/2007 Ex.D5: Certified copy of Annexure-A filed in O.S.No.1848/2007 Ex.D6: Certified copy of valuation slip filed in O.S.No.1848/2007 Ex.D7: Receipt Ex.D8: Lease Deed dated.11.03.2003 (BHAIRAPPA SHIVALING NAIK) XII Addl. City Civil & Sessions Judge, Bangalore 39 O.S.No.8025/2009 (Judgment pronounced in open court) The suit of the plaintiff is decreed partly with costs as under:-
The defendant is directed to quit and deliver vacant possession of the suit schedule premises to the plaintiff within three months from the date of this order.
Further the defendant is liable to pay a sum of Rs.94,530/- towards the arrears of rent along with interest at the rate of 12% p.a. accruing thereon month after month till the date of payment.
There shall be a separate enquiry under Or.XX, Rule 12 of CPC 1908 for determining the mesne profits/damages payable by the defendant for her unauthorised occupation of suit schedule premises from the date of suit, to the date of delivery of vacant possession of the same to the plaintiff.
Draw up a decree accordingly. (vide Judgment passed) XII ACCJ;Bangalore