Bangalore District Court
Sri Sukesh Manjunath vs Sri Dheeraj Singh on 19 October, 2019
IN THE COURT OF THE LIX ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE CITY (CCH-60)
Dated this the 19th day of October, 2019
PRESENT
************
Sri B. B. Jakati, B.A., LL.M.,
LIX ADDL.CITY CIVIL & SESSIONS JUDGE
BANGALORE CITY
O.S.No.8625/2017
PLAINTIFF: Sri Sukesh Manjunath
Prabhakar,
Aged about 42 years,
S/o Sri S. Prabhakar,
R/at No.22, Old No.515,
Anjaneya Temple Street,
V.V. Puram,
Bengaluru - 04.
(By Sri K. Surya Prakash Rao,
Advocate)
[ V/s.
DEFENDANTS: Sri Dheeraj Singh,
Aged about 43 years,
S/o Sri O.P. Singh
R/at No.99/104, 2nd Floor
15th cross,
Gayathri Devi Park Extension,
Vyalikaval,
Bengaluru - 560 003.
(Rep. by Sri E.K.K.., Advocate)
Date of institution of the : 14.12.2017
suit
2 O.S.No.8625/2017
Nature of the suit : Ejectment Suit
Date of commencement of : 04.08.2018
recording of the evidence
Date on which the : 19.10.2019
Judgment was
pronounced.
: Year/s Month/s Day/s
Total duration
01 10 05
(B.B. Jakati)
LIX ACC & SJ
B'LORE.
JUDGMENT
The plaintiff has filed this suit for ejectment. He has pleaded that N.V. Raman, S/o N.N. Vradarajan was the owner of the schedule premises and from him the plaintiff purchased the schedule premises on 15.02.2006 through registered sale deed. Prior to purchase the vendor of the plaintiff inducted the defendant as tenant under lease agreement dated 17.07.2005 for a period of three years. The lease amount was Rs.4,00,000/- and the defendant paid lease amount of Rs.3,00,000/- to N.V. Raman. The defendant 3 O.S.No.8625/2017 not paid the remaining lease amount of Rs.1,00,000/- to the vendor of the plaintiff. Even after purchase of the schedule premises the defendant not paid such remaining lease amount to the plaintiff inspite of demand. After lapse of three years the plaintiff requested the defendant to vacate the premises and the defendant not vacated. On the other hand, he has filed O.S.No.2869/2016 for permanent injunction against the plaintiff, which was dismissed for non- prosecution. The plaintiff has issued legal notice to the defendant on 04.09.2017 terminating the tenancy and it was un-served. The plaintiff requested the defendant to vacate the premises and when the defendant has refused, the plaintiff was constrained to file the present suit for ejectment.
2. The defendant in the written-statement denied the ownership of plaintiff including the sale deed dated 15.02.2006. He has admitted that N.V. Raman is his landlord including the lease for a period of three years. He has contended that he has paid Rs.3,00,000/- 4 O.S.No.8625/2017 to the landlord towards lease amount and spent an amount of Rs.1,00,000/- for repair of the schedule premises and such amount has been adjusted towards lease amount. He has denied the receipt of legal notice issued by the plaintiff. He has contended that the plaintiff is stranger to the schedule premises and he has no right to file the suit for ejectment. On these grounds he prayed to dismiss the suit.
3. On the rival pleadings of the parties, the following issues have been framed:
(1) Whether the plaintiff proves the jural relationship of lessor and lessee between himself and the defendant?
(2) Whether the plaintiff proves the termination of lease of the defendant in accordance with law?
(3) Whether the plaintiff is entitled for possession?
4. To prove the claim, the plaintiff examined himself as P.W.1 and got marked the documents at 5 O.S.No.8625/2017 Ex.P.1 to P.5. To substantiate the defence, the defendant examined himself as D.W.1.
5. The learned counsel for the plaintiff has argued that the sale deed of the plaintiff has been produced, which has not been denied by the defendant and the property stands in the name of the plaintiff. The plaintiff adduced his evidence to show that transfer of property was intimated to the defendant and the defendant continued the tenancy under the plaintiff and hence, there is deemed attornment. The plaintiff has issued legal notice and the defendant has not claimed such notice and hence, presumption of service has to be raised. Such presumption is to be rebutted by the defendant and the defendant not adduced any rebuttal evidence and hence, there is a deemed service. In support of this argument he placed reliance on the decision reported in (2017) 5 SCC 737 {N. Parameshwaran Unni V/s. G. Kannan and Another} and LAWS (MAD) 2012 7 421 {Muniraj V/s. T. Viswanath}. He has further argued that the lease was for three 6 O.S.No.8625/2017 years commencing from 17.07.2005 and such lease terminated by reflux of time in the year 2008 itself and therefore, even the notice under Section 106 of T.P.Act is not at all required. In support of this argument he placed reliance on the decision reported in AIR 2019 SC 2664 {Sevoke properties Ltd., V/s. West Bengal State Electricity Distribution Company Ltd.,}. On these main grounds, he prayed to decree the suit.
6. The learned counsel for the defendant has argued that after purchase of schedule premises under the sale deed, the plaintiff has not issued attornment notice to the defendant. Therefore, there is no relationship between the plaintiff and the defendant as landlord and tenant. He has argued that notice sent to the defendant terminating the tenancy was returned to the plaintiff on the endorsement that "Door of the house of the defendant was locked". There is no proper service of notice on the defendant. The tenancy has not been terminated in accordance with law and hence, prayed to dismiss the suit with costs.
7 O.S.No.8625/2017
7. Perused the records.
8. My findings to the above Issues are as under :
Issue No.1 to 3 : In the Affirmative for the following:
REASONS
9. ISSUE NO.1 : - The plaintiff has produced the certified copy of sale deed dated 15.02.2006 at Ex.P.4, which shows that the plaintiff has purchased the schedule premises from N.V. Raman, S/o N.N. Varadaraju. Ex.P.2 is the Khatha certificate standing in the name of plaintiff, which shows that on the basis of Ex.P.4, the plaintiff got Khatha of the schedule premises. These documents are not disputed by the defendant. Therefore, Ex.P.2 and 4 are sufficient to hold that ownership of schedule premises has been transferred from N.V. Raman to the plaintiff legally. Apart from that, the defendant is not claiming any right over the schedule premises other than tenancy rights. Therefore, these two documents support the statement 8 O.S.No.8625/2017 of P.W.1 that he is the landlord/owner of the schedule premises.
10. The defendant in the pleading admitted that he was tenant of the schedule premises under N.V. Raman and he paid lease amount of Rs.3,00,000/- and spent an amount of Rs.1,00,000/- for repair of the schedule premises. Such fact has been spoken even in the evidence. Therefore, the defendant has admitted the fact that he is in possession of the schedule premises as tenant under N.V. Raman prior to sale deed at Ex.P.4. Such tenancy was commenced on 17.07.2005 and the ownership has been transferred on 05.02.2006.
11. The plaintiff has stated that he informed the defendant that he purchased the schedule property and he is the landlord. Such fact has been denied by the defendant. The evidence on record shows that fact of purchase of property / schedule premises by the plaintiff was known to the defendant who was the tenant. With such knowledge he continued his 9 O.S.No.8625/2017 possession over the schedule premises. Therefore, the evidence on record show that the defendant had deemed knowledge of attornment. Thus, now the defendant cannot contend that still he is tenant under the vendor of the plaintiff. Soon after execution of the sale deed by N.V. Raman, the defendant deemed to be the tenant under the plaintiff. Therefore, I hold that the defendant is the tenant and the plaintiff is the landlord of the schedule premises. Accordingly, I answer this issue in the Affirmative.
12. ISSUE NO.2 : - In order to terminate the tenancy from year to year, notice under Section 106 of T.P. Act is mandatory. Such notice has to be served upon the tenant in accordance with law. If the tenant did not vacate even after termination of tenancy, then only the suit for ejectment is maintainable. The plaintiff has produced the office copy of the notice of termination of tenancy at Ex.P.3 dated 04.09.2017. Under this notice, the plaintiff has stated that the 10 O.S.No.8625/2017 tenancy of the defendant is terminated w.e.f. 01.10.2017.
13. The service of notice is very important. The plaintiff in order to prove the service of notice has produced postal cover at Ex.P.5. This cover shows that the plaintiff dispatched the legal notice to the defendant under registered post. Such notice has been returned to the plaintiff on the ground that "Door of the house of the defendant was locked" on 06.09.2017 and 07.09.2017. On the top of the cover the postal authorities have mentioned as N/C / M.S. on 14.09.2017. These endorsements at Ex.P.5 are sufficient to hold that when the notice was sent to the house of defendant, the door of the house of the defendant was locked and therefore, postal authorities not at all served the notice or even not able to give the intimation of post.
14. The P.W.1 in the cross-examination has admitted that the notice of termination has not been served upon the defendant. He voluntarily stated that 11 O.S.No.8625/2017 the defendant has refused the notice. This voluntary statement is contrary to his admission and also the endorsement on Ex.P.5. He has admitted that after receipt of Ex.P.5, he has not issued any other notice.
15. The Hon'ble Supreme Court in the decision reported in (2017) 5 SCC 737 in Para No.13 to 15 held as under:
13. It is clear from Section 27 of the General Clauses Act, 1897 and Section 114 of the Indian Evidence Act, 1972, that once notice is sent by registered post by correctly addressing to the drawer of the cheque, the service of notice is deemed to have been effected. Then requirements under proviso (b) of Section 138 stands complied, if notice is sent in the prescribed manner. However, the drawer is at liberty to rebut this presumption.
14. It is well settled that interpretation of a Statute should be based on the object which the intended legislation sought to achieve. "It is a recognized rule of interpretation of 12 O.S.No.8625/2017 statutes that expressions used therein should ordinarily be understood in a sense in which they best harmonize with the object of the statute, and which effectuate the object of the Legislature.
If an expression is susceptible of a narrow or technical meaning, as well as a popular meaning, the Court would be justified in assuming that the Legislature used the expression in the sense which would carry out its object and reject that which renders the exercise of its power invalid".
15. This Court in catena of cases has held that when a notice is sent by registered post and is returned with postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed.
16. In the present case as already stated the notice returned has not been claimed and door locked. The notice has been sent to proper address of the defendant. Therefore, presumption of service of notice 13 O.S.No.8625/2017 has to be raised by resorting to Sec.27of the General Clauses Act, 1897 and Sec.114 of the Evidence Act, 1872. Such presumption is rebuttable presumption. The defendant is required to rebut the presumption. The defendant has not produced any material to show that the endorsement made by the postal authorities either in-correct of created. Therefore, based on the principles laid by the Hon'ble Supreme Court, I hold that there was deemed service of notice of termination of tenancy, which was sent through Ex.P.5.
17. The other question of law is whether notice of termination under Sec.106 of T.P. Act in the facts and circumstance of the case is mandatory or not is to be looked into. The Hon'ble Supreme Court in the decision reported in AIR 2019 SC 2664 in Para No.15 held as under:
"Under Section 111(a), a lease of immovable property determines by efflux of time limited thereby. Once this be the position, there can be no manner of doubt that the position of the respondent 14 O.S.No.8625/2017 on the expiration of the lease was of a tenant at sufferance. In the circumstances, there was no necessity of a notice for the termination of the lease under the provisions of Section 106.
The respondent having squarely admitted in its written statement that it was in occupation for a term of fifteen years, that term having expired, the lease stood determined by efflux of time. Once the lease stood determined by efflux of time, there was no necessity for a notice of termination under Section
106."
18. The defendant herein in Para NO.13 of the Written Statement has admitted that he was inducted in the schedule premises as a tenant under the lease agreement dtd.07.07.20015 for a period of three years and lease commenced from 01.08.2005 and it lapsed on 01.08.2008. It is not the case of the defendant that such lease has been extended either by N.B. Raman or the plaintiff. Therefore, there is clear admission by the defendant that his lease over the schedule premises 15 O.S.No.8625/2017 came to an end on 01.08.2008. The suit was filed on 14.12.2017 after lapse of lease period. It can be safely held that lease of the defendant over the schedule premises terminated under Sec.111(a) of T.P.Act by efflux of time. When the lease has been terminated under Sec.111(a) of T.P.Act, there is no necessity to issue notice of termination under Sec.106 of T.P.Act. Therefore, I hold that even if it is held that notice of termination of lease through notice at Ex.P.5 is not served on the defendant, then also it will not come in the way of the plaintiff to seek the decree for eviction of defendant from the schedule property. For these reasons, I hold this issue in the Affirmative.
19. ISSUE NO.3 : - The plaintiff has established that he is the landlord and the defendant is the tenant over the schedule premises. The plaintiff has also established that the lease of defendant was terminated under Sec.111(a) of T.P.Act. Further, the plaintiff has proved the deemed service of notice of termination of lease. Hence, the plaintiff being the landlord of the 16 O.S.No.8625/2017 schedule premises is entitled for decree of eviction against the defendant. Accordingly, I answer this Issue in the Affirmative and proceed to pass the following:
ORDER The suit of the plaintiff is decreed with costs.
The defendant is hereby
directed to handover the
vacant possession of the
schedule premises to the
plaintiff within three months
from today. In default, the
plaintiff is at liberty to evict
the defendant from the
schedule premises in
accordance with law.
Draw decree accordingly.
[Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me, in the Open Court on this the 19th day of October, 2019].
(B.B. Jakati) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.
ANNEXURE List of witnesses examined on behalf of the Plaintiff:17 O.S.No.8625/2017
PW.1 Sri Sukesh Manjunath Prabhakar List of witnesses examined on behalf of the Defendant:
D.W.1 Sri Dheeraj Singh List of documents marked on behalf of the Plaintiff:
Ex.P.1 - Certified copy of plaint in O.S.No.2869/2016 Ex.P.2 - Khatha certificate Ex.P.3 - Legal notice Ex.P.4 - certified copy of sale deed Ex.P.5 - Postal cover List of documents marked on behalf of the Defendant:-
NIL (B. B. JAKATI) LIX ADDL. C.C. & SESSIONS JUDGE, BENGALURU CITY.18 O.S.No.8625/2017
02.11.2018:
Judgment pronounced in the Open Court (Vide separate detailed judgment) ORDER (B.B. Jakati) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.19 O.S.No.8625/2017