Karnataka High Court
Mohammed Musa Sait Wakf vs Chetana Bharati Trust on 20 December, 2023
Author: P.S. Dinesh Kumar
Bench: P.S. Dinesh Kumar
R.F.A No.593/2016
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR
AND
THE HON'BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA
R.F.A NO.593 OF 2016 (RES)
BETWEEN:
MOHAMMED MUSA SAIT WAKF
HAVING ITS OFFICE AT NO.22
MODEL SCHOOL ROAD
CHENNAI-600 006
REPRESENTED BY ITS MUTHAVALLI
MR. M. MUNEER SAIT
AGED ABOUT 74 YEARS
RESIDING AT NO.4
SHAFEE MOHAMMED ROAD
CHENNAI-600 006 ....APPELLANT
(BY SHRI. C.K. NANDAKUMAR, SENIOR ADVOCATE FOR
SHRI. RAGHURAM CADAMBI, ADVOCATE)
AND:
1. CHETANA BHARATI TRUST
NO.34, CUNNINGHAM ROAD
BANGALORE-560 052
REPRESENTED BY ITS TRUSTEE
MRS. NEERA TILAK HEGDE
2. MRS. NAMITA SHETTY
W/O MR. SITARAM SHETTY
RESIDING AT NO.34
CUNNINGHAM ROAD
BANGALORE-560 052
R.F.A No.593/2016
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3. SITARAM SHETTY
S/O MR. NARAYANA SHETTY
RESIDING AT NO.34
CUNNINGHAM ROAD
BANGALORE-560 052 ...RESPONDENTS
(BY SHRI. V. SRINIVASAN RAGHAVAN, SENIOR ADVOCATE FOR
SMT. KALIGOTLA NITYA, ADVOCATE FOR R1 TO R3)
THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF
CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED 11.02.2016
PASSED IN OS NO.6943/2009 ON THE FILE OF THE XII ADDL. CITY CIVIL
AND SESSIONS JUDGE, BENGALURU, DISMISSING THE SUIT FOR
ARREARS OF RENT AND MESNE PROFITS.
THIS RFA, HAVING BEEN HEARD AND RESERVED FOR JUDGMENT
ON 26.09.2023 COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, P.S. DINESH KUMAR, J., PRONOUNCED THE FOLLOWING:-
JUDGMENT
This appeal by the plaintiff is directed against the judgment and decree dated February 11, 2016 in O.S No. 6943/2009 passed by the XII Addl. City Civil and Sessions Judge, Bangalore, dismissing the suit for ejectment.
2. For the sake of convenience, parties shall be referred as per their status before the Trial Court. R.F.A No.593/2016 3
3. We have heard Shri. C.K.Nandakumar, learned Senior Advocate for the plaintiff and Shri. Srinivasan Raghavan, learned Senior Advocate for the defendants.
4. Plaintiff's (hereinafter referred to as 'Wakf') case is, Wakf is the owner of the suit property. A lease deed was executed between the Wakf and one Shri. ABV Gowda, for lease of various properties, including the suit property for a term of 56 years. The legal representatives of ABV Gowda had sub-leased the suit property to one M/s. Ganesh Mansion Trust, which further executed an Assignment Deed in favour of Chetana Bharati Trust/defendant No.1 (hereinafter referred to as 'Trust').
5. The Wakf issued a notice dated 11.01.1990 to all its tenants including the Trust, terminating and forfeiting the lease deed granted in favour of late ABV Gowda, which expressly stated that the original Lease Deed with ABV Gowda was determined and the sub-lessees would be treated as tenants directly under the Wakf.
R.F.A No.593/20164
6. Subsequently, an agreement to lease was executed on 21.03.1995 between the Wakf and two trustees of the Trust, under which the trustees had agreed to give 1500 sq.ft. of constructed area in the commercial complex put up in property No. 145, Infantry Road on or before 23.03.2000. Legal representatives of ABV Gowda issued a notice to the Trust, calling upon it to deliver the possession of the suit property by 31.07.1995 and pay the arrears of rent. The Trust replied stating that the Wakf is the owner and that the Trust was answerable only to the Wakf w.e.f. 01.02.1990. It was further stated that the Trust had been paying the rents to the Wakf.
7. The Trust did not pay any rent to the Wakf. Wakf issued a termination notice calling upon the Trust to deliver the possession and to pay arrears of rent. The Trust did not comply with the demand made in the notice and the Wakf has brought the instant suit.
R.F.A No.593/20165
8. The defendants resisted the suit by filing common written statement denying the plaint averments and contending inter alia that after Wakf issued termination notice to ABV Gowda, no lease agreement has been entered into either with the Wakf or ABV Gowda. Attempt to execute a new lease deed with the Wakf did not materialize. The issues relating to the existence or otherwise of the lease in favour of ABV Gowda, the recognition of the Trust as sub lessee under the heirs of ABV Gowda, the validity of the termination notice and recognizing the Trust as direct lessee under the Wakf, were all subject matter in O.S.Nos.15507/2000 and 2055/2001. In the light of the pendency of the suits, the Wakf had no right to issue notice of termination in the absence of a clear finding as regards the status of the Trust.
9. Based on the pleadings, the Trial Court has framed following five issues and four additional issues: R.F.A No.593/2016 6
1. Whether plaintiff proves that the defendants are its tenants with effect from 1.2.1990 on a monthly rent of Rs.1 Lakh?
2. Whether the notice of termination is valid?
3. Whether the plaintiff proves that the defendants are due in arrears of rent in a sum of Rs.36 Lakhs?
4. Whether the plaintiff proves that is is entitled for mesne profits at the rate of Rs.20,00,000/- per month from the date of suit till handing over vacant possession?
5. Whether the suit is in time?
6. What order or decree?
Addl. issues framed on 09.06.2014
1. Whether the valuation of the suit schedule property is proper and Court Fee paid therein is sufficient?
2. Whether the suit of the plaintiff is bad for mis-joinder of parties as contended by the defendants?
3. There is effect of earlier suits in O.S.No.15507/2000 and O.S.No.2055/2001 on this subsequent suit?
4. Whether the plaintiff is entitled to be put in possession of 1500 sq.ft. area in the suit schedule property?
10. On behalf of plaintiff, one witness was examined as P.W.1 and Exs. P1 to P21 marked. On behalf of defendants, two witnesses were examined but no documents marked. R.F.A No.593/2016 7 Answering issues No. 1 to 4, and additional issues No 2 and 4 in the negative and additional issue No.1 in the affirmative, the Trial Court has dismissed the suit.
11. Assailing the impugned judgment and decree, Shri. Nandakumar, for the plaintiff, mainly contended that:
once, main lease is forfeited, sub lease also stands forfeited. Thus, once the lease with ABV Gowda stood terminated, the rights of the Trust, which is the sub-lessee also stood automatically terminated;
the Trust has admitted in its reply notice that it is a tenant directly under the Wakf and therefore, the Trust is liable to vacate;
the Trust has not let in any evidence to prove its averments that it is not liable to pay arrears of rent and to vacate the suit property.R.F.A No.593/2016
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12. Shri. Raghavan, for the Trust, mainly contended that:
the Trust continues to remain in possession of the suit property as per the terms of Sub-Lease between the ABV Gowda and the Trust;
as Wakf claims to have terminated tenancy with ABV Gowda and called upon the Trust to become a direct tenant under the Wakf Deed, the Wakf has acquiesced to the fact that it has stepped into the shoes of ABV Gowda. On this principal, the Trust is entitled to continue in possession in terms of the sub-lease between ABV Gowda and the Trust;
the Wakf has accepted the Trust as its direct tenant;
rents are being paid to the Wakf as per agreement with ABV Gowda and there is no material on record to show that the Trust is liable to pay rent of Rs.1,00,000/- per month ; R.F.A No.593/2016 9
in substance, the Wakf has stepped into the shoes of ABV Gowda and there is no separate agreement between the Wakf and the Trust.
13. We have carefully considered rival contentions and perused the records.
14. In the light of the material on record, the following points arise for our consideration:
(i) Whether the Trust is liable to pay rents to the Wakf and vacate the suit property?
(ii) If the above question is answered in the affirmative, then what is the amount of rent the Trust is liable to pay?
(iii) Whether the impugned judgment and decree calls for any interference?
Re. Point No.(i):
15. Undisputed facts of the case are, Wakf is the owner of the suit property. The Wakf had leased the suit property to ABV Gowda. The legal representatives of Shri. ABV Gowda had sub-leased the suit property to one M/s. Ganesh Mansion, R.F.A No.593/2016 10 which further executed an Assignment Deed in favour of the Trust. On 11.01.1990, the Wakf, vide legal notice has terminated the tenancy of ABV Gowda.
16. We have perused the said legal notice marked as Ex.P8. The relevant portion of the notice reads as follows:
"3. Under the terms of the lease the same is liable to be terminated, determined and forfeited if the lessee fails to comply with, perform and observe any of the covenants terms and conditions of lease and thereupon to exercise right of re-entry.
Late Sri.ABV Gowda and thereafter the first three of you, had violated and failed to perform, observe and honour almost all the main and material terms, conditions and covenants of lease and consequently rendered the lease liable to be termined, determined and forfeited by my clients.
Please take notice that being left with no other alternative and compelled by circumstances, my clients hereby terminate, determine and forfeit the lease granted in favour of Late Sri.ABV Gowda under registered lease deed dated 31.07.74."
"11. You are therefore hereby notified that for the reasons and grounds set out supra my client hereby determined, terminated and forfeited the lease originally granted in favour of late ABV Gowda as aforesaid with effect from 31-1-1990 and No.4 to and No.13 of you, who are in possession of the different properties aforesaid even before the lease in favour of late ABV Gowda was granted which being treated and dealt with effect R.F.A No.593/2016 11 from 1-2-89 as tenant directly under my clients i.e. M/s. Musa Sait Wakf for all purposes including for purposes of lease, eviction and such other purposes and not to pay any rent or arrears of rent as 1 to 1 to 3 of you."
17. Thus, it is clear that the Wakf intended to terminate the tenancy with ABV Gowda and treated the Trust as its direct tenant.
18. One of the main contentions of the Trust is that O.S.No.15507/2000 is a dispute between legal heirs of ABV Gowda and the Wakf, wherein the validity of the termination notice is under challenge. The said suit has been decreed and pending in an appeal. The O.S. No. 2055/2001 is a suit between ABV Gowda and the Trust, wherein the sub-tenancy is in question. Till those matters are adjudicated, this case cannot be decided.
19. In O.S. No. 2055/2001, while cross-examining the legal heirs of ABV Gowda, the Trust has suggested that the agreement between ABV Gowda and the Wakf had been R.F.A No.593/2016 12 terminated and that the Trust had become the direct tenant under the Wakf.
20. We may record that in the reply notice to the legal heirs of ABV Gowda dated 04.07.1995 marked as Ex.P7, the Trust has admitted that the tenancy between ABV Gowda and the Wakf had been terminated and the Trust had become a direct tenant under the Wakf. This unambiguous stand taken by the Trust coupled with the suggestions given during the cross-examination by the Trust to the ABV Gowda's heirs, clearly shows that the Trust had accepted the termination of lease between the Wakf and ABV Gowda and it had identified itself as a direct tenant under the Wakf.
21. The Trust declines to pay rent to ABV Gowda on the ground that it is a direct tenant under the Wakf. In the instant case, the Trust is declining to pay rents to the Wakf too. The Trust, in the view of the pending litigations is trying to evade its duty of paying the rents.
R.F.A No.593/201613
22. Once, the Trust has admitted that it is a direct tenant under the Wakf, Wakf has the right to terminate the tenancy. The Wakf has issued a notice dated 11.06.2009 terminating the tenancy with the Trust. By the same notice, the Wakf also sought for re-delivery of possession and arrears of rent.
23. In its notice, the Wakf has demanded a damage of Rs.1,00,000/- p.m. from the Trust with effect from 01.02.1990. The Trust has resisted this demand, by contending that there is no separate lease agreement between the Trust and the Wakf. The Wakf had also treated the Trust as its direct tenant. According to Shri.Raghavan, recognition of Trust as its tenant by the Wakf should be construed as the Wakf substituting itself as the Lessor in place of ABV Gowda. Therefore, the Trust is entitled for all the privileges available under the lease between ABV Gowda and the Trust. According to Shri. Raghavan, the sub-lease agreement executed by ABV Gowda permitted the Trust to continue as tenant for a period of 49 years with a renewal option. This contention is untenable because it is settled that R.F.A No.593/2016 14 once tenancy is terminated, sub-tenancy gets automatically terminated (See: Yusuf Vs. Jyotishchandra Banerji1). Further, once the Trust has admitted that the tenancy between ABV Gowda and the Wakf had stood terminated and it had become tenant directly under the Wakf, the benefits or privileges under the lease agreement with ABV Gowda shall not be available. This amounts to approbation and reprobation.
24. Shri. Raghavan submitted that there is attornment of tenancy and the sub-lease continues to exist by placing reliance on Uppalapati Veera Venkata Satyanarayanaraju and Anr Vs. Josyula Hanumayamma and Anr.2 This contention also does not merit any consideration for more than one reason:
firstly because, the Trust has not urged its defence with regard to attornment in the written statement. Shri. Nandakumar strongly urged this point, and in our opinion rightly so;
secondly because, the Trust having taken a categorical stand that it had become a direct 1 AIR 1932 Cal 241 2 AIR 1967 SC 174 R.F.A No.593/2016 15 tenant under the Wakf, cannot be heard to contend that the terms of sub-lease between ABV Gowda and the Trust are applicable;
thirdly because, in Uppalapati, the issue was dependent upon the Will and in the case on hand, the Trust had initially entered into an express sub-lease with ABV Gowda and subsequently, identified itself as direct tenant under the Wakf. Hence, Uppalapati does not lend any support to the Trust.
25. In view of the undisputed facts recorded hereinabove, we hold that the Trust is a direct tenant under the Wakf and accordingly, answer point No.(i) in the affirmative and in favour of the Wakf.
Re. Point No.(ii):
26. In the absence of any written lease agreement between the Wakf and the Trust, the tenancy must be treated as month to month tenancy. The Wakf is entitled to recover the admitted rent and damages commensurate with the R.F.A No.593/2016 16 rentals existing in the locality. This requires a determination in an enquiry under Order XX Rule 12 of the Code of Civil Procedure, 1908.
Re. point No.(iii)
27. The learned Trial Judge in para 58 of the impugned judgment has held as follows:
"58. The plaintiff has sued defendants No.2 and 3 only in pursuance to the supplementary agreement. But there is no lease agreement so as to recognize the defendants No.2 and 3 as tenants under the plaintiff or previous assignee. However, the suit in O.S.No.15507/2000 and O.S.No.2055/2001 are between the same parties in respect of same subject matter. The issues arising out of the pleadings of parties to previous suits as well as the instant suit are similar in nature. The first defendant is claiming under the original lessee as per the terms of Lease Deed dated 31.7.1974. Though the defendants have not adduced oral or documentary evidence, yet the evidence adduced by the plaintiff has been duly rebutted/falsified by the counsel for the defendants in the course of cross-examination of P.W.1. The plaintiff has failed to prove that the defendants No.2 and 3 are in possession of 1,500 Sq. ft area in the suit schedule property and agreed to hand over the possession of constructed building as alleged in the plaint to the plaintiff. Looking from any angle, this suit subjudice (sic- subject) the previous suit O.S.No.2055/2001 and R.F.A pending before the Hon'ble High Court of Karnataka. The parties to the suit R.F.A No.593/2016 17 will be bound by the final decision passed in previous suits in respect of suit schedule property so far as the plaintiff -Wakfs concerned. Hence, I answer additional issues No.2 to 4 accordingly."
(Emphasis Supplied)
28. With the above finding, the learned Trial Judge has dismissed the suit. We have held that the Wakf is the owner and the lessor and the tenancy is month to month tenancy. Therefore, the impugned judgment and decree calls for interference. The point No. (iii) is accordingly answered in the affirmative.
29. In the result, the following:
ORDER
(i) Appeal is allowed in part with cost;
(ii) Judgment and decree dated February 11, 2016 in O.S.No.6943/2009 is set-aside and the suit is decreed in part holding that the Trust is tenant under the Wakf and the lease is month to month;R.F.A No.593/2016
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(iii) Defendant No.1/the Trust shall vacate and handover the vacant possession of the suit schedule property to plaintiff/Wakf within three months from today; and
(iv) There shall be an enquiry under Order XX Rule 12 of the Code of Civil Procedure, with regard to the damages claimed by plaintiff/Wakf.
Sd/-
JUDGE Sd/-
JUDGE SPS