Bangalore District Court
Sri.Bathala Nagarjuna vs Sri.T.R.Raghavendra @ Raghu on 11 November, 2021
Form No.9 (Civil)
Title Sheet for
Judgments in
Suits (R.P.91)
KABC010124642015
IN THE COURT OF THE XX ADDL. CITY CIVIL
SESSIONS JUDGE(CCH-32), BANGALORE CITY
Dated this the 11th day of November 2021
Present:
Sri.Ningouda B.Patil, B.Sc., LL.M.,
XX Addl. City Civil & Sessions Judge,
Bengaluru.
O.S No.4904/2015
Plaintiff: Sri.Bathala Nagarjuna,
S/o. Late Dr.B.Doreswamy Naidu,
Aged about 38 years,
Presently residing at No.17-493,
Dr.Pathy Street, Old Bus Stand,
Chittoor, A.P.
Now come to Bengaluru.
(By Sri.Harish H.V.,
Advocate.)
/vs/
Defendant: Sri.T.R.Raghavendra @ Raghu,
S/o.Sri.T.K.Ramana,
Aged about 38 years,
M/s.Sai Auto World,
No.833, 24th Main Road,
J.P.Nagar II Phase,
Bengaluru.
(By Sri.A.Ramesh Gowda,
Advocate.)
2 O.S.No.4904/2015
Date of Institution of the
suit: 06.06.2015
Nature of suit: Ejectment
Date of commencement of
recording of evidence: 25.11.2016
Date on which Judgment
pronounced: 11.11.2021
Total Duration: Years Months Days
06 05 05
J UD GM E N T
Plaintiff instituted this suit against defendant for
ejectment, mesne profits and for recovery of arrears of rent
in respect of suit premise.
2. The suit premise is (hereinafter called as 'schedule
property') that all the piece and parcel of property bearing
No.833, measuring east-west 36.20 metre and south-north
20.10 metres, situated at 24th Main Road, J.P.Nagar, 2nd
Phase, Bengaluru having definite boundaries. Plaintiff
described the schedule property in the schedule of his
plaint.
3. The case of the plaintiff is that, his father was the
owner of schedule property; the said his father purchased
the schedule property on 13.11.1997; the said his father
donated schedule property to him by executing registered
gift deed dated 10.12.2010; thereafter he got transferred
the Khatha of the schedule property in his name; his sister
confirmed his ownership over schedule property by
executing Release deed; thus, he is the full and absolute
owner of schedule property.
3 O.S.No.4904/2015
4. Plaintiff pleaded that, his sister Shobha Rani
knowing the fact of Gift deed dated 10.12.2010,
mischievously created documents in respect of schedule
property and donated the same in favour of her son
Prashanth; he persuaded his sister and her son by
appraising his right, title and interest over schedule
property; on such persuation and at the instance of well
wishers his sister and her son agreed to cancel the
mischievous Gift deed; accordingly a cancellation deed was
came to be executed; his sister also executed a release deed
dated 28.11.2014 in his favour confirming his right of
ownership over the schedule property.
5. Plaintiff further pleaded that, defendant inducted
as tenant to the schedule property by his father on monthly
rent of Rs.70,000/-; his sister and her son mischievously
executed rental agreement in favour of defendant; however,
on the settlement of matter between himself and his sister,
he requested defendant for payment of rent to him; but
defendant postponed the same for one or other pretext;
hence, he requested defendant to vacate and to deliver the
vacant possession of schedule property; defendant initially
agreed for the same, but on the instance of his sister and
her son, defendant blown hot and cold; as such, he issued
legal notice dated 5.5.2015 to the defendant terminating
the tenancy with effect from 31.5.2015; thus, from
31.5.2015 defendant is not having right to continue in
possession of the schedule property; in spite of service of
termination notice defendant neither vacated nor delivered
vacant possession of schedule property to him; therefore,
4 O.S.No.4904/2015
defendant is liable to pay the arrears of rent at the rate of
Rs.70,000/- p.m. from the month of December 2014, which
as on the date of the suit amounts to Rs.4,20,000/-;
defendant running commercial business in the schedule
property and he not paid the arrears of rent; therefore,
defendant is liable to pay the arrears of rent with interest at
the rate of 24% p.a..
6. Plaintiff further also pleaded that, defendant
squatting on the schedule property without making
payment of rent; therefore, he is liable to pay the damages
of Rs.2,00,000/- p.m. for unauthorised use and occupation
of schedule property commencing from 1.6.2015; as
defendant failed in vacating and delivering the vacant
possession of schedule property to him and also failed in
making payment of arrears of rent, he without any
alternative approached this court with suit claims.
7. Plaintiff furthermore pleaded that, the cause of
action for suit arose on 6.5.2015 when defendant not
vacated the schedule property even after receiving the legal
notice and also on 31.5.2015 when the tenancy of
defendant was terminated, within the jurisdiction of this
court. Therefore, this court has got jurisdiction to try and
entertain the suit. Accordingly, plaintiff prayed to decree
the suit as prayed for.
8. This court issued the summons to the defendant.
The said summons was served on defendant and he made
his appearance through his counsel and defended the suit
by filing written statement.
5 O.S.No.4904/2015
9.Defendant in his written statement contended that
suit of the plaintiff is not maintainable either in law or on
facts; there is no jural relationship between himself and
plaintiff as landlord and tenant; he never the tenant to the
schedule property under the plaintiff along with his
partner; himself and his partner were the tenants to the
schedule property under Shobha Rani i.e. sister of plaintiff;
plaintiff filed the suit on forged and fabricated documents
and making a false claim against him; therefore, suit of the
plaintiff is liable for dismissal in limine.
10. Defendant contended that, it is false to state that,
plaintiff is the owner of schedule property; it is false to state
that the father of plaintiff donated the schedule property to
him by executing Gift deed dated 10.12.2010; it is false to
state that plaintiff got transferred the Khatha of the
schedule property to his name by virtue of the Gift deed; it
is false to state that, the sister of plaintiff with her son
committed mischief and created mischievous documents; it
is false to state that, plaintiff persuaded his sister; it is false
to state that, as per the said persuasion, the matter
between plaintiff and his sister was settled; it is false to
state as per settlement the sister of plaintiff executed
release deed in favour of plaintiff; plaintiff and her sister
created documents to defeat his rights over the schedule
property; plaintiff clandestinely instituted the suit to take
away his rights and rights of his partner over the schedule
property; therefore, suit of the plaintiff is not maintainable
and the same is liable for dismissal.
6 O.S.No.4904/2015
11. Defendant further contended that, it is false to
state that he was inducted as tenant by the father of
plaintiff on the monthly rent of Rs.70,000/-; it is false to
state that, the sister of plaintiff along with her son executed
rental agreement mischievously in his favour; in fact,
plaintiff is no way concerned to the schedule property; he
inducted as tenant to the schedule property by the sister of
plaintiff in the year 2011; the sister of plaintiff executed
lease agreement in his favour by receiving a security
deposit of Rs.10,00,000/-; the rate of rent was fixed at
Rs.25,000/- p.m.; thus, the say of the plaintiff that, he is a
tenant to the schedule property on the rent of Rs.70,000/-
p.m. is baseless and false; therefore, the claim of plaintiff is
not tenable.
12. Defendant further also contended that, the sister
of plaintiff abandoned her rights from collecting the rents;
she executed an agreement of sale in his favour and in
favour of his partners and agreed to sell the schedule
property to them; the sister of plaintiff agreed to sell the
schedule property for Rs. 4 Crores; she also availed loan to
an extent of Rs.45 Lakhs from him and from his partners;
she postponed payment of the said loan amount; however,
in the month of June 2013 the said sister of plaintiff
approached him and his partners and sought for further
loan amount of Rs.30,00,000/-; himself and partners
apprehended for the payment of said loan as already they
were paid more than Rs.45,00,000/-; the said sister of
plaintiff offered to sell schedule property to them and to
treat the amount already paid including the advance
7 O.S.No.4904/2015
deposit as advance sale consideration; accordingly, the said
sister of plaintiff on 18.7.2013 executed agreement of sale
in respect of schedule property in his favour and in favour
of his partners; on the day of agreement of sale, they paid
Rs.30,00,000/-; thus, in all they paid Rs.75,00,000/- as
advance sale consideration to the sister of plaintiff; the
sister of plaintiff agreed to execute sale deed within six
months, obtaining consent of family members and also
obtaining the required documents; the sister of plaintiff by
virtue of agreement of sale permitted them to carry their
business in the schedule property without rent; since the
day of agreement, they are in possession of schedule
property in their own rights.
13. Defendant further also contended that, the sister
of plaintiff not executed sale deed as agreed even after lapse
of six months; himself and his partners were always ready
and willing to perform their part of agreement; however, the
sister of plaintiff postponed the execution of sale deed in
one or other reason; being the facts as stated, he received
legal notice from the plaintiff for eviction; immediately he
and his partners contacted the sister of plaintiff; the said
sister of plaintiff assured them to sort out the issue as far
as early; however, she did not come forward and executed
the sale deed; till this day she is making false promise of
sorting out the issue with her brother and postponing the
execution of sale deed; himself and his patterns came to
know that plaintiff in collusion with his sister and with her
son created documents only to deny his legitimate claim
over the schedule property; plaintiff and his sister cheated
8 O.S.No.4904/2015
him and his partners from deriving their lawful rights over
schedule property through agreement of sale; himself and
his partners issued notice to sister of plaintiff for necessary
legal action; under the circumstances, plaintiff filed the suit
conspiring with his family members; therefore, suit of the
plaintiff is liable for dismissal. Accordingly, defendant
prayed to dismiss the suit with exemplary costs to meet the
ends of justice.
14. In the light of the above said rival pleadings of
both parties this court framed the following issues:
1. Whether the plaintiff proves that, he is the
absolute owner of suit schedule property?
2. Whether the plaintiff further proves that,
there is a contractual relationship of
landlord and tenant between himself and
defendant?
3. Whether the plaintiff further proves that,
he terminated the tenancy of defendant
towards suit property?
4. Whether the defendant proves that, he and
his partner holding valid agreement of
sale?
5. Whether the plaintiff is entitle for the suit
claims?
6. What order or decree?
15. The burden of proving of Issue No.1, 2 and 3 is on
plaintiff and in order to discharge the said burden, plaintiff
resorted to both oral evidence and documentary evidence.
Plaintiff examined himself as P.W.1 and got marked the
documents at Ex.P.1 to P.17.
9 O.S.No.4904/2015
16. Ex.P.1 is the Legal notice dated 6.5.2015,
Ex.P.1(a) is the Postal receipt, Ex.P.1(b) is the Postal
acknowledgment, Ex.P.2 and P.3 are the certified copies of
the Gift Deeds dated 10.12.2010 and 16.9.2013
respectively, Ex.P.4 is the certified copy of the Rectification
Deed dated 15.10.2013, Ex.P.5 is the Cancellation of Gift
Deed dated 28.11.2014, Ex.P.6 is the Cancellation of
Rectification Deed dated 28.11.2014, Ex.P.7 and P.8 are the
Release Deeds dated 28.11.2014 and 4.5.2016 respectively,
Ex.P.9 is the Encumbrance Certificate, Ex.P.10 is the
certified copy of the order sheet, Ex.P.11 is the certified
copy of the Compromise Petition, Ex.P.12 is certified copy of
the Decree, Ex.P.13 is the "Uttara pathra" dated 16.3.2018,
Ex.P-14 and 15 are 2 tax paid receipts, Ex.P-16 is the 5
photo copies and Ex.P-17 is the CD.
17. The burden of proving of issue No.4 is on
defendant. Defendant neither cross-examined P.W.1 nor
adduced oral evidence or produced the documentary
evidence to discharge his burden.
18. During the proceedings, I.A.No.I to I.A.No.XI are
filed and the same are disposed off in accordance with law.
19. Heard the arguments of learned counsel
appearing for plaintiff. Defendant not advanced argument
even providing sufficient time.
20. I carefully perused the plaint averments, contents
of written statement, documents available on record and
evidence adduced.
10 O.S.No.4904/2015
21. My answers and findings to the above issues are as
follows:
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 the order passed for the following:
REASONINGS
22. ISSUE NO.1: Plaintiff in his plaint para No.3 and
4 pleaded that, his father being the owner of schedule
property donated the same to him by executing registered
Gift deed dated 10.12.2010. By virtue of the said Gift deed,
he acquired the ownership over the schedule property,
subsequently his sister confirmed his ownership over the
schedule property. He also got transferred the khatha of
schedule property in his name.
23. Defendant denied the ownership of plaintiff over
the schedule property. Hence, in order to prove his
ownership over the schedule property, plaintiff produced
documentary evidence and also adduced oral evidence.
Plaintiff adduced oral evidence by examining himself as
P.W.1. He also produced the documentary evidence marked
under Exs.P.2, P.7, P.8, P.11 and P.13 to 15.
11 O.S.No.4904/2015
24. The documentary evidence marked under Ex.P.2 is
a certified copy of registered Gift deed dated 10.12.2010.
The said document discloses that, father of plaintiff being
the owner of schedule property donated the same to
plaintiff. Defendant in his written statement contended that,
the sister of plaintiff was the owner of the schedule property.
But the documentary evidence produced at Ex.P.7 and P.8
and P.11 discloses that the sister of plaintiff lost her rights
towards schedule property. The documentary evidence
produced at Ex.P.7 and P.8 are the certified copies of release
deed dated 28.11.2014 and 4.5.2016. The said documentary
evidence reveals that, the sister of plaintiff given up her
rights in the schedule property in favour of plaintiff and
thereby confirmed his ownership over the said property.
The contents of the said release deeds are quite clear in this
regard. At para No.2 of page No.2 of the release deed dated
4.5.2016 marked under Ex.P.8 it is stated that,
"Whereas, the said Dr.Bathala Doraswamy Naidu
out of lave and affection having towards releasee,
as he is the only son, during his life time has
executed a registered gift deed dated 10.12.2010
as Doc No.CMP-1-02483-2010-11, stored in CD
No.CMPD23 Book No.1 in the office of sub-
registrar Chamarajapet, Bengaluru in fvour of the
releasee with respect of item No.1 and 2 of the
schedule properties and he has accepted the said
gift and the releasee is the absolute owner in
possession and enjoyment of the same and the
12 O.S.No.4904/2015
releasor has no objections for releasee to enjoy the
same as absolute owner".
The item No.1 property in the said Gift deed is a schedule
property of this suit.
Thus, as per the above said contents of Ex.P.8,
plaintiff became absolute owner of schedule property. The
contents of release deed dated 28.11.2014 marked under
Ex.P.7 are also states about the said fact.
25. Further, the documentary evidence marked under
Ex.P.11 makes it quite clear that plaintiff is the absolute
owner of the schedule property. The said documentary
evidence is a certified copy of compromise petition recorded
in O.S.No.4398/2015. The contents of para No.4 of said
compromise petition says how plaintiff became the owner of
schedule property. The court also accepted the said
compromise petition and accordingly the said suit has been
decreed in terms of the said compromise petition. The
certified copy of said decree is at Ex.P.12.
26. The documentary evidence produced at Ex.P.13 to
P.15 are the certification of Khatha and tax paid receipts,
which discloses that, the Gift deed dated 10.12.2010 under
Ex.P.2, release deeds under Ex.P.7 and P.8 and compromise
decree under Ex.P.12 acted upon and also confirmed the
ownership of plaintiff over the schedule property.
13 O.S.No.4904/2015
27. Plaintiff in order to prove his ownership over the
schedule property not only relied upon the above said
documentary evidence, but also resorted to oral evidence.
Plaintiff who examined as P.W.1 in para No.2 of his affidavit
of examination-in-chief dated 25.11.2016 clearly and
categorically stated that, he is the absolute owner of the
schedule property and he acquired the ownership through
Gift deed dated 10.12.2010 executed by his father.
28. Defendant though denied the ownership of
plaintiff over the schedule property, but failed in challenging
the evidence led by plaintiff. Defendant not disputed the
above said documentary evidence and also not challenged
the oral evidence of P.W.1 by cross-examining. Thus, there
is no alternative for this court to disbelieve the evidence led
by the plaintiff regarding proving of his ownership over the
schedule property. Therefore, it can be held that plaintiff by
producing documentary evidence marked at Ex.P.2, P.7, P.8,
P.11 to P.15 and also by adducing oral evidence proved that,
he is the absolute owner of schedule property. Accordingly,
my answer to Issue No.1 is in Affirmative.
29. ISSUE NO.2: Plaintiff in his plaint para No.7
and 8 pleaded that, defendant was a tenant of schedule
property and he is running his Auto business in the said
property. He further pleaded that, his sister mischievously
created some documents and executed rental agreement in
favour of defendant in respect of schedule property.
According to plaintiff his father inducted defendant as
14 O.S.No.4904/2015
tenant to the schedule property and after acquisition of
ownership, the defendant became tenant under him. Hence,
there is a contractual relationship as landlord and tenant
between himself and defendant.
30. Defendant denied that, he is a tenant to the
schedule property under the plaintiff. According to him,
plaintiff is not at all the owner of schedule property and
there was no any jural relation between himself and
plaintiff. The defense of defendant is that, there is no any
relation as landlord and tenant between himself and
plaintiff. However, defendant in his written statement
admitted that, he inducted to the schedule property as a
tenant, but not under plaintiff.
31. Plaintiff in order to establish the jural relation ship
between himself and defendant in respect of schedule
property produced the documentary evidence marked at
Ex.P.1. The said documentary evidence is a office copy of
legal notice dated 6.5.2015 issued to the defendant. In the
said legal notice plaintiff contended that, he is the absolute
owner of the schedule property and defendant is the tenant
of said property. The said notice further reveals that
defendant was put in possession of schedule property on
rental base by the sister of plaintiff as a tenant and
subsequently the said sister confirmed his ownership over
the schedule property with the execution of the release deed
dated 28.11.2014. Thus, according to plaintiff upon
acquisition of ownership over the schedule property he
became the landlord and defendant became his tenant. The
15 O.S.No.4904/2015
said notice was served on defendant and the documentary
evidence produced at Ex.P.1(b) confirms it. Defendant in his
written statement contended that, he replied the said notice,
but he not produced any document/material which shows
that he replied the said notice. On the other hand, the
documentary evidence produced at Ex.P.2, P.7 to P.11 and
P.13 to P.15 discloses that plaintiff acquired the ownership
over the schedule property. Defendant admitted that, he
had been inducted as a tenant to the schedule property.
Thus, any how defendant is a tenant to the schedule
property. The documentary evidence as aforesaid discloses
that, plaintiff acquired the ownership over the schedule
property and subsequently the acts of his sister makes him
absolute owner of schedule property.
32. Plaintiff apart from the above said documentary
evidence also led the oral evidence to show that there are
contractual relationship as landlord and tenant between
himself and defendant. Plaintiff himself examined as P.W.1
and in para No.7 and 8 of his affidavit of examination-in-
chief dated 25.11.2016 he unequivocally stated that,
defendant is a tenant to the schedule property under him.
Defendant neither challenged the above said documentary
evidence nor the oral evidence adduced by the plaintiff.
Though there is no documentary evidence to show the jural
relationship between plaintiff and defendant, but the oral
evidence adduced makes it clear that defendant is the
tenant under plaintiff. It well settled principle of law that in
a civil proceedings a fact may be proved either by producing
the documentary evidence or by adducing the oral evidence.
16 O.S.No.4904/2015
The oral evidence adduced in this case by the plaintiff
discloses that, defendant is a tenant to the schedule
property under him.
33. Though there is no any relation directly between
plaintiff and defendant but the subsequent events makes
them and binds in a contractual relationship. Section 109
of Transfer of Property Act, 1882 provides that,
Section 109: Rights of lessor's transferee: If the
lessor transfers the property leased, or any part
thereof, or any part of his interest therein, the
transferee, in the absence of a contract to the
contrary, shall possess all the rights, and, if the
lessee so elects, be subject to all the liabilities of the
lessor as to the property or part transferred so long
as he is the owner of it; but the lessor shall not, by
reason only of such transfer cease to be subject to
any of the liabilities imposed upon him by the lease,
unless the lessee elects to treat the transferee as
the person liable to him:
Provided that the transferee is not entitled to
arrears of rent due before the transfer, and that, if
the lessee, not having reason to believe that such
transfer has been made, pays rent to the lessor, the
lessee shall not be liable to pay such rent over
again to the transferee.
The lessor, the transferee and the lessee may
determine what proportion of the premium or rent
17 O.S.No.4904/2015
reserved by the lease is payable in respect of the
part so transferred, and, in case they disagree,
such determination may be made by any Court
having jurisdiction to entertain a suit for the
possession of the property leased".
In this case, defendant not produced any material
which is repugnant to the above said provision of law.
34. Plaintiff pleaded that he became the owner of
schedule property vide Gift deed dated 10.12.2010 executed
by his father and subsequently the his ownership was
confirmed by his sister with the execution of Release deed
dated 28.11.2014 marked under Ex.P.7. In a reported case
in AIR 2015 SC 2459 in the matter of Ambika Prasad -Vs-
Md. Alam, it has been held that,
"From perusal of Section 109 of T.P.Act, 1882, it is
manifest that after the transfer of lessor's right in
favour of the transferee, the latter gets all rights and
liabilities of the lessor in respect of subsisting
tenancy. The section does not insist that transfer will
take effect only when the tenants attorns. It is well-
settled that a transferee of the landlord's right steps
into the shoes of the landlord with all the rights and
liabilities of the transferor landlord in respect of the
subsisting tenancy. The section does not require that
the transfer of the right of the landlord can take effect
only if the tenant attorns to him. Attornment by the
tenant is not necessary to confer validity of the
transfer of the landlord's rights. Since attornment by
18 O.S.No.4904/2015
the tenant is not required, a notice under Section 106
in terms of the old terms of lease by the transferor
landlord would be proper and so also the suit for
ejectment".
Thus, as per the above said authority, plaintiff steps
into the shoes of his sister, hence, though even it is assumed
that, defendant is a tenant under sister of plaintiff, his
contractual relations takes effect with plaintiff upon
execution of Release deed.
35. The counsel for plaintiff argued that, the
subsequent confirmation of ownership of plaintiff makes
him transfer of all the rights of lessor. Thus, when there is
no any material which restrains the rights of plaintiff though
defendant was not tenant to the schedule property directly
from plaintiff, but as per the above said provisions and
dictum laid down, the subsequent confirmation of the right
of ownership of plaintiff over the schedule property
builds/makes the contractual relationship between plaintiff
and defendant. Therefore, it can be held that, there are
contractual relationship as landlord and tenant between
plaintiff and defendant. Thus, my answer to Issue No.2 is
in Affirmative.
36. ISSUE NO.3: Plaintiff in para No.9 of his plaint
pleaded that, the tenancy of a defendant has been
terminated by means of legal notice with effect from
31.5.2015. Defendant contended that, plaintiff is not at all
the owner of the schedule property and therefore, he cannot
terminate his tenancy to the schedule property. He further
contended that, he has replied the legal notice issued to him
19 O.S.No.4904/2015
by the plaintiff. Plaintiff produced the office copy of legal
notice and the same is marked as Ex.P.1. The said
documentary evidence discloses that plaintiff being the
owner of schedule property terminated the tenancy of
defendant to schedule property with effect from 31.5.2015.
Plaintiff also in para No.9 of his affidavit of examination-in-
chief stated that, he terminated the tenancy of defendant
through a legal notice with effect from 31.5.2015.
Defendant not challenged the said evidence by conducting
the cross-examination. The said evidence is corroborates
with documentary evidence produced at Ex.P.1. Section
111 of Transfer of Property Act, 1882 provides that,
Section 111: Determination of lease.--A lease
of immovable property determines--
(a) by efflux of the time limited thereby;
(b) where such time is limited conditionally on
the happening of some event--by the happening
of such event;
(c) where the interest of the lessor in the
property terminates on, or his power to dispose
of the same extends only to, the happening of
any event--by the happening of such event;
(d) in case the interests of the lessee and the
lessor in the whole of the property become
vested at the same time in one person in the
same right;
(e) by express surrender; that is to say, in case
the lessee yields up his interest under the lease
to the lessor, by mutual agreement between
them;
(f) by implied surrender;
(g) by forfeiture; that is to say, (1) in case the
lessee breaks an express condition which
20 O.S.No.4904/2015
provides that, on breach thereof, the lessor may
re-enter; or (2) in case the lessee renounces his
character as such by setting up a title in a third
person or by claiming title in himself; or (3) the
lessee is adjudicated an insolvent and the lease
provides that the lessor may re-enter on the
happening of such event]; and in [any of these
cases] the lessor or his transferee [gives notice
in writing to the lessee of] his intention to
determine the lease;
(h) on the expiration of a notice to determine the
lease, or to quit, or of intention to quit, the
property leased, duly given by one party to the
other. Illustration to clause (f) A lessee accepts
from his lessor a new lease of the property
leased, to take effect during the continuance of
the existing lease. This is an implied surrender
of the former lease, and such lease determines
thereupon".
Thus, as per the provision of Section 111(g), it can be
stated that plaintiff terminated the tenancy of defendant
over the schedule property. Accordingly, my answer to
Issue No.3 is in Affirmative.
37. ISSUE NO.4: Defendant in para No.19 of his
written statement pleaded that, the sister of plaintiff
executed an agreement of sale dated 18.7.2013 in favour of
himself and his partners and thereby agreed to sell the
schedule property for Rs.4 Crores. It is his further case
that, the said sister of plaintiff availed hand loan of
Rs.45,00,000/- from him and from his partners. He also
pleaded that, on 18.7.2013 he paid an amount of
Rs.30,00,000/- in cash. Thus, in total they paid
Rs.75,00,000/- as advance sale consideration under the
said agreement of sale. He further also pleaded that, by
21 O.S.No.4904/2015
virtue of the said agreement of sale, his tenancy to the
schedule property was came to an end and he had been put
in possession of the schedule property as a prospective
purchaser. Thus, according to defendant he is in possession
of schedule property on his own rights. Assuming for a
moment an agreement of sale was executed by the sister of
plaintiff, defendant not pleaded why he and his partners not
enforced the said agreement of sale. Defendant not
produced any material to show that, such an agreement was
executed and he took the legal action for its enforcement.
The sister of plaintiff lost her all kinds of rights for the
schedule property with the execution of release deeds under
Ex.P.7 and P.8. The said fact can be get confirmed from the
documentary evidence produced at Ex.P.11 and P.12. The
documentary evidence at Ex.P.11 is a certified copy of
compromise petition recorded in O.S.No.4398/2015. The
said documentary evidence reveals that, plaintiff acquired
the ownership over the schedule property vide Gift deed
dated 10.12.2010 executed by his father and confirmed by
his sister. The court accepted the said compromise petition
and decreed the suit in terms of the said compromise
petition. Documentary evidence produced at Ex.P.12 makes
it very clear. Thus, the right of ownership of plaintiff over
the schedule property filtered and scrutinized by the court of
law. Under the circumstances, it is not possible to accept
the case of defendant that an agreement of sale dated
18.7.2013 was executed by sister of plaintiff in his favour
and the said agreement is a valid agreement. Apart from
that, defendant not chosen to enter into the witness box to
prove his case towards agreement of sale even providing
22 O.S.No.4904/2015
sufficient opportunities. He also not produced any
documentary evidence to prove his said case. When
defendant failed in proving his case by producing and
adducing cogent evidence, it cannot be stated that himself
and his partners holding a valid agreement of sale. Hence,
my answer to Issue No.4 is in Negative.
38. ISSUE NO.5: Plaintiff seeking eviction of
defendant from the schedule property. He also seeking
mesne profits along with arrears of rent to an extent of
Rs.4,20,000/- with interest at the rate of 24% p.a. from the
date of the suit till realization. This court while answering
issue No.1 and 3 held that, plaintiff being the owner of
schedule property validly terminated the tenancy of
defendant to the schedule property. Therefore, defendant is
liable to vacate the schedule property and also liable to put
the plaintiff in vacant possession of the same.
39. Plaintiff pleaded that, defendant is liable to pay an
arrears of rent of Rs.4,28,000/- with interest at the rate of
24% p.a. from the date of suit till realization of entire
amount. Plaintiff reckoned the rate of rent to the schedule
property at Rs.70,000/- p.m. Plaintiff not produced any
document to show that, schedule property fetches a rent of
Rs.70,000/- p.m. as on the date of the suit. However, by the
pleadings of the defendant, it can be grasped that in the year
2011 the schedule property fetches the rent of Rs.25,000/-
p.m. If that rate of rent is taken into consideration, a figure
is available to reckon the rate of rent as on the date of suit
and also to calculate mesne profits/damages. It is normal
23 O.S.No.4904/2015
norm in the market that for every year 5% of the rent has to
be enhanced for the residential properties and 10% to the
commercial properties. In this case admittedly the schedule
property is a commercial property and therefore, base rate of
rent should be taken as Rs.25,000/- p.m.. The said rate was
for the year 2011. If that rate has been enhanced at the rate
of 10% for the year 2015, the same will comes to
Rs.37,000/- p.m. approximately. Therefore, plaintiff is
entitled to recover the arrears of rent at the rate of
Rs.37,000/- p.m. from the date of the suit till vacating the
schedule property with commercial rate of interest at the
rate of 18% p.a. till payment of the entire arrears of rent.
40. Plaintiff also seeking recovery of mesne profits. He
terminated the tenancy of defendant by issuing legal notice
dated 6.5.2015 commencing from 31.5.2015. But, defendant
not vacated schedule property. Therefore, it should be
construed that from 31.5.2015 the tenancy of defendant is
illegal and he is in unauthorized occupancy of schedule
property. Therefore, defendant is liable to pay the mesne
profits of the schedule property. Admittedly the schedule
property is a commercial property fetching a good rate of
rent per month. Therefore, the said rent rate would be the
base for calculation of mesne profits. But plaintiff claiming
Rs.2,00,000/- as mesne profit per month, which is not
acceptable. As on the date of the commencement of the suit,
this court considered Rs.37,000/- as rent for per month,
and hence, the said amount will be the mesne profit per
month. Hence, defendant is also liable to pay Rs.37,000/-
p.m. as mesne profits to the plaintiff from the date of the
24 O.S.No.4904/2015
suit with interest at the rate of 18% p.a. till vacating of the
schedule property. Accordingly, my answer to Issue No.5
is Partly in Affirmative.
41. ISSUE NO.6: In view of my observations/
answers to the issue No.1 to 5, I proceed to pass the
following
ORDER
Suit of the plaintiff is hereby partly decreed with costs.
Defendant is hereby directed to vacate the plaint schedule property and to deliver the vacant possession of the same to the plaintiff within one month from today.
Plaintiff is also entitled to recover arrears of rent of Rs.37,000/- p.m. with interest at the rate of 18% p.a. from the date of suit till realization of entire arrears of said rent amount.
Plaintiff is further also entitled to recover mesne profits at the rate of Rs.37,000/- p.m. with interest at the rate of 18% p.a. from 31.5.2015 till delivery of vacant possession of schedule property to him by the defendant.
Draw decree accordingly.
(Dictated to the Judgment Writer on computer, computerized by her, corrected and then pronounced by me in open court on the 11 th day of November, 2021.) (Ningouda B.Patil) 25 O.S.No.4904/2015 XX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
ANNEXURE List of witnesses examined for the Plaintiff:
PW.1 : Sri.Bathala Nagarjuna List of documents marked for the Plaintiff:
Ex.P.1 Legal notice. Ex.P.1(a) Postal receipt. Ex.P.1(b) Postal acknowledgment. Ex.P.2 & 3 Certified copies of the Gift Deeds. Ex.P.4 Certified copy of the Rectification Deed. Ex.P.5 Cancellation of Gift Deed. Ex.P.6 Cancellation of Rectification Deed. Ex.P.7 & 8 Release Deeds. Ex.P.9 Encumbrance Certificate. Ex.P.10 Certified copy of the order sheet. Ex.P.11 Certified copy of the Compromise Petition. Ex.P.12 Certified copy of the Decree. Ex.P.13 "Uttara pathra" dated 16.3.2018.
Ex.P.14 & 15 Tax paid receipts.
Ex.P.16 5 photo copies . Ex.P.17 CD.
List of Witnesses examined for the defendant:
Nil.
List of documents marked for the defendant:
Nil.
(Ningouda B.Patil) XX ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.26 O.S.No.4904/2015
27 O.S.No.4904/2015 28 O.S.No.4904/2015