Bangalore District Court
Mr.Sharan Raja Shivakumar vs Mr.Hasrath Haji Ilyas on 3 February, 2020
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THE COURT OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE
AT BANGALORE CITY - CCH NO.23.
DATED THIS THE 3 rd DAY OF FEBRUARY, 2020.
PRESIDING OFFICER
PRESENT : Sri.Sadananda M.Doddamani,
B.A., L.LB.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
O.S.No.5135/2016
PLAINTIFF/S: 1. Mr.Sharan Raja Shivakumar,
shortly called R.S.Sharan,
S/o Late R.Shivakumar,
Aged about 27 years,
Residing at No. 517,
Diagonal road,
Jayanagar 3 rd block,
Bengaluru - 560 011.
(By Sri.VBS, Advocate)
Vs.
DEFENDANT/S: 1. Mr.Hasrath Haji Ilyas,
S/o Haji Ilyas,
No. 25, Old Pension Mohalla,
Mysore road,
Bengaluru - 560 018.
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Also at:
Mr.Hasrath Haji Ilyas,
S/o Haji Ilyas,
tenant in occupation of shop
premises in property
No. 71/1, 2 nd main road,
New Tharagupet,
Bengaluru - 560 002.
(By Sri.GS, Advocate)
* * * * *
Date of institution of suit : 15.07.2016
Nature of suit : Ejectment
Date of commencement
of recording of evidence : 14.08.2018
Date on which the judgment
was pronounced : 03.02.2020
Duration of the suit :Year/s Month/s Day/s
03 06 19
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JUDGMENT
1. This is a suit filed by the plaintiff to direct the defendant tenant to quit, vacate and deliver vacant physical possession of the suit schedule property and for mesne profits.
2. In brief the case of the plaintiff is as under:
That the suit schedule property was owned and possessed by the plaintiff along with his grand father Raja Sathya Narayana Shetty. During his life time rents were received and thereafter on such gift deed being executed rents were accounted in the name of the plaintiff. The suit schedule property is gifted to the plaintiff and the revenue documents entered in his name in respect of the suit schedule property. It is further contended that the defendant is a tenant occupying commercial schedule premises and has 4 deposited interest pay refundable amount of Rs.7,00,000/- and initially has been paying rent at Rs.15,000/- per month on occupation of the premises.
The present rate of rent is Rs.29,298/-. It is further contended that the defendant is a chronic defaulter in the matter of payment of rents. The defendant keeps on withholding payment of rents in respect of the premises which has been taken on rent by him under unregistered agreement to lease which unregistered agreement of lease indicates month to month tenancy commencing from the first of each calender month and ending on the last date thereof.
3. It is further contended that the defendant being a tenant is liable to be evicted by issuing a months' notice. The plaintiff on 24.8.2015 terminated the tenancy of the defendant by issuing legal notice. The said legal notice has been served on schedule non- 5 residential premises. It is further contended that the plaintiff has legally and lawfully terminated the tenancy of the defendant. The rents that were indicated to be paid are accounted as damages / mesne profits for it being adjudicated after handing over possession of the premises. Therefore whatever amount that is received and that which has been sent by the defendant as rent is being received "under protest". It is further contended that the plaintiff has received the amount of Rs.29,298/- after the death of his grand father. The plaintiff on 22.9.2015 accepted the rent and it indicates that it will be treated towards damages. The plaintiff having legally and lawfully terminated the tenancy of the defendant, the defendant has no locus standi to continue to occupy the premises. It is further contended that the premises in occupation of the defendant in the area fetches a rental income of 6 more than Rs.50,000/- whereas the defendant is only paying a paltry sum of Rs.15,000/- as rent. That amount would not even meet payment of taxes and maintenance of the properties. Therefore there is valid termination for securing possession of the premises. So the plaintiff has come up with the present suit. In view of the above contentions and other contentions taken in the plaint he prays for to decree the suit.
4. The suit summons sent by this court was duly served upon the defendant and he has appeared before the court through his counsel and filed his detailed written statement by denying all the plaint averments.
5. The defendant in his written statement contended that the suit filed by the plaintiff is not maintainable either in law or on facts and the same is liable to be dismissed in limine. The perusal of the written 7 statement of the defendant would show that he has admitted that the grand father of the plaintiff Raja Sathya Narayana Shetty died and also admitted that he is a tenant in respect of the suit schedule premises but he has denied the factum that he is a tenant under the plaintiff. So also he admitted with regard to the deposit of interest free refundable amount of Rs.7,00,000/- and initially he was paying rent at the rate of Rs.15,000/- per month. He further contended that the above said amounts were not paid to the plaintiff treating him as landlord or owner of the property at any point of time. There is no relationship of landlord and tenant between the plaintiff and the defendant. It is further contended that the documents produced and relied upon by the plaintiff are false, forged and fabricated. The plaintiff has no right to issue notice terminating the tenancy of the defendant 8 as there is no relationship of landlord and tenant between the defendant and the plaintiff. The plaintiff has no right to treat any payment as damages or mesne profits at his whims and fancies. The defendant admitted that he is a tenant in respect of the suit schedule property under Raja Sathya Narayana Shetty and the tenancy is month the month tenancy commencing from the first of each calender month and ending on the last date thereof. There is no valid termination of tenancy and the plaintiff is not entitled for possession of the premises. It is further contended that no notice is served on the defendant as claimed by the plaintiff.
6. It is further contended that the defendant is a tenant under late Raja Sathya Narayana Shetty by virtue of deed of agreement of lease wherein the said Raja Sathya Narayana Shetty agreed to lease the 9 schedule property for a period of 15 years from 15.7.2006, which is valid and subsisting till 15.7.2021 subject to enhancing the rent at 25% once in every three years. The perusal of para No. 17 of the written statement would show that wherein he has stated the enhancement of rent at 25% once in every three years. It is further contended that the said late Raja Sathya Narayana Shetty himself had no right to terminate the tenancy of the defendant, therefore the plaintiff who claims the right, title and interest through the said Raja Sathya Narayana Shetty also do not have right to terminate the tenancy of the defendant. The plaintiff in order to suppress this fact has not produced the lease agreement which is the basis for determination of this case. In the circumstances stated above there is no question of either terminating the tenancy or paying fanciful damages by the defendant. It is further 10 contended that Raja Sathya Narayana Shetty had very cordial relationship with the defendant and in fact he was expressing his willingness to sell the suit schedule property to the defendant. It is further contended that the said Raja Sathya Narayana Shetty had several immovable properties running to several crores. It is further contended that the said Raja Sathya Narayana Shetty had very cordial friendly relationship not only with the defendant but also with several other tenants. Therefore Raja Sathya Narayana Shetty had agreed to sell several tenanted properties to the respective tenants only. In fact the defendant also agreed to purchase the suit schedule property from Raja Sathya Narayana Shetty. He had no intention of terminating the tenancy of the defendant nor did he have such rights, in view of the terms and conditions of lease agreement between Raja Sathya Narayana Shetty and 11 the defendant. It is further contended that during the last days of Raja Sathya Narayana Shetty he was not keeping good health. It is during this time the plaintiff has created certain documents without the knowledge and consent of the said Raja Sathya Narayana Shetty. The plaintiff has created the documents by playing fraud and he has his own team of witnesses in creating fabricated and concocted documents. It is further contended that one of the daughters of late Raja Sathya Narayana Shetty, Smt.Parijatha has filed suit against the plaintiff herein disputing the title of the document and is claiming all the properties of Raja Sathya Narayana Shetty. The said Parijatha also approached the defendant demanding rents claiming share in all the properties left by Raja Sathya Narayana Shetty. Therefore unless the rights, title claimed by the plaintiff and other legal 12 heirs of Raja Sathya Narayana Shetty is determined, the plaintiff alone has no right to terminate the tenancy of the defendant. So in view of his above contentions and other contentions taken in his written statement he prays for to dismiss the suit.
7. Heard the arguments of the learned counsel for the plaintiff and the learned counsel for the defendant.
8. The learned counsel for the plaintiff in support of his arguments has relied upon the following decisions:
(1) 2012(11) SCC page 405 (2) AIR 2015 SC page 2459 (3) ILR 2004 Kar page 4782 (4) ILR 2007 Kar 379 (5) AIR 2013 AP page 7 (6) AIR 1996 Delhi page 32 (7) AIR 1952 SC page 23 13 (8) AIR 1995 SC page 2482 (9) AIR 2006 Kar page 295
9. The learned counsel for the defendant in support of his arguments has relied upon the following decisions:
(1) LAWS (DLH)2012-2-29, High Court of Delhi (2) (2006)4 SP page 517
10. On the basis of the above rival pleadings of the parties this court has framed the following as many as 5 issues.
(1) Whether the defendant proves that there is no jural relationship of landlord and tenant in between himself and plaintiff ?
(2) Whether the plaintiff proves that he has validly and legally 14 terminated the tenancy of the defendant ?
(3) Whether the plaintiff is entitled for mesne profits ?
(4) Whether the plaintiff is entitled for the reliefs as sought by him ?
(5) What order or decree ?
11. The plaintiff in order to establish his case he himself got examined as PW1 and got marked 12 documents from Ex.P1 to Ex.P12 and closed his side evidence. The defendant in order to establish his case he himself got examined as DW1 and got marked 6 documents from Ex.D1 to Ex.D6 and closed his side evidence.
12. My findings to the above issues are as under:
Issue No.1 : In the Negative
Issue No.2 : In the Affirmative
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Issue No.3 : Shall be determined in
a separate enquiry under
Order 20 Rule 12 C.P.C.
Issue No.4 : In the Affirmative
Issue No.5 : As per the final order
for the following:
REASONS
13. Issue No. 1 and Issue No. 2 : Both these issues
are inter-connected, therefore they have been taken together for common consideration and discussions in order to avoid repetition of facts and also for the sake of convenience.
14. The plaintiff in order to establish his case he himself got examined as PW1 and filed his affidavit by way of examination-in-chief. The perusal of the affidavit evidence of PW1 it would show that it is nothing but replica of plaint averments. As such there 16 is no need to repeat the same facts herein. The plaintiff in order to establish his case got marked 12 documents from Ex.P1 to Ex.P12. In view of his oral and documentary evidence he prays for to decree the suit.
15. The defendant in order to establish his case he himself got examined as DW1 and filed his affidavit evidence by way of examination-in-chief. The perusal of the affidavit evidence of DW1 it would show that it is nothing but repetition of his written statement averments. As such there is no need to repeat the same facts herein. The defendant in order to establish his case got marked six documents from Ex.D1 to Ex.D6. In view of his oral and documentary evidence he prays for to dismiss the suit.
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16. The learned counsel for the plaintiff during the course of his arguments contended that the plaintiff has filed the present suit seeking the ejectment of defendant from the suit schedule property and for mesne profits. He further contended that the suit schedule property owned by the grand father of the plaintiff by name Raja Sathya Narayana Shetty. He further contended that the grand father of the plaintiff gifted the suit schedule property to the plaintiff under gift deed dated 30.8.2016. In order to substantiate his contention he placed his reliance upon Ex.P1 certified copy of the above said gift deed. He further contended that by virtue of the plaintiff having acquired absolute right over the suit schedule property the revenue documents came to be entered in the name of plaintiff in respect of the suit schedule property. In order to substantiate his contention he placed his 18 reliance upon Ex.P2 Khatha extract and Ex.P3 Khatha certificate. He further contended that the defendant is a tenant in respect of the suit schedule property and he has deposited interest free refundable deposit amount of Rs.7,00,000/- and initially he started paying rent at the rate of Rs.15,000/- per month and the present rent in respect of the suit schedule property is Rs.29,298/-. He further contended that the defendant is a defaulter in the payment of monthly rents. He further contended that the evidence on record would show that the defendant's tenancy is evidenced by unregistered agreement of lease. So he contended that the tenancy of the defendant is month to month tenancy starting from first of each calender month and ending on the last date thereof. He further contended that the plaintiff has issued notice to the defendant terminating the tenancy as per Ex.P5. He further 19 contended that the said termination notice was duly served upon the defendant. In order to substantiate his contention he placed his reliance upon Ex.P7 postal acknowledgment. He further contended that inspite of having received the said termination notice the defendant has failed to neither comply with the notice nor has given any reply to the said notice. He further contended that the plaintiff has also sent another notice to the defendant as per Ex.P9 by stating that the amount of Rs.29,298/- sent by him through cheque on 15.09.2015 towards rent is adjusted towards determination of damages. He further contended that the very Ex.P5 termination notice sent by the plaintiff to the defendant would show that he has terminated the tenancy of the defendant in accordance with law.
17. He further contended that the defendant in his written statement contended that he is not tenant 20 under the plaintiff, but he is tenant under Raja Sathya Narayana Shetty and he has executed lease agreement for a period of 15 years from 15.7.2006, which is valid and subsisting till 15.7.2021 subject to enhancing the rent at 25% once in every three years. So far as the said contention of the defendant in his written statement what he contended that the very documents produced by the plaintiff at Ex.P1 certified copy of gift deed on 30.8.2016 would show that the grand father of the plaintiff Raja Sathya Narayana Shetty gifted the suit schedule property to the plaintiff, as such the plaintiff has become the owner of the suit schedule property and the defendant becomes tenant under him. He further contended that in fact the defendant was depositing the rent in respect of the suit schedule property in the joint account of Raja Sathya Narayana Shetty and the plaintiff and after the demise of Raja 21 Sathya Narayana Shetty the rent was collected by the plaintiff. He further contended that though the defendant has denied the ownership of the plaintiff, but the very evidence given by DW1 in his cross- examination at page No. 7, 2 nd para would show that the plaintiff has made known the factum of he has acquired the suit schedule property under Ex.P1 gift deed and the defendant started paying the rent in respect of the suit schedule property to the plaintiff. So he contended that the very said evidence given by DW1 in the cross-examination would clearly shows that there exists jural relationship of landlord and tenant in between the plaintiff and the defendant. He further contended that the very Ex.P1 certified copy of the gift deed would show that the plaintiff has acquired absolute right over the suit schedule property. After transferring the suit schedule property into the name of 22 plaintiff by the grand father of the plaintiff, the plaintiff would get all rights and liabilities of the landlord in respect of the subsisting tenancy. In order to substantiate his contention he placed his reliance upon the decision reported in AIR 2015 SC page 2459 . He further contended that the plaintiff after getting absolute right over the suit schedule property under Ex.P1 gift deed from his grand father he has got every right to collect the rent in respect of the suit schedule property being the landlord of the same and the very evidence given by DW1 in the cross-examination as stated above would show that after coming to know the plaintiff acquired right in respect of the suit schedule property under Ex.P1 gift deed from his grand father he has got every right to collect the rent in respect of the suit schedule property being the landlord of the same and the very evidence given by DW1 in 23 the cross-examination as stated above would show that after coming to know the plaintiff acquired right in respect of the suit schedule property under Ex.P1 gift deed defendant paid rent to the plaintiff. So he contended that the plaintiff has got every right to collect the rent from the defendant. In order to substantiate his contention he placed his reliance upon the decision reported in ILR 2004 Kar page 4782 . He further contended that the plaintiff being the absolute owner of the suit schedule property has issued Ex.P5 termination notice to the defendant terminating his tenancy. The defendant in his written statement contended that he has not at all received any such termination notice and the plaintiff has no right to issue any termination notice, muchless termination notice as claimed by him. So far as the said contention of the defendant what he contended that the 24 very Ex.P5 notice sent by the plaintiff would show that the same was issued by both Raja Sathya Narayana Shetty and plaintiff terminating the tenancy of the defendant. The defendant though contended that the said notice is not served upon him, but the very postal acknowledgment at Ex.P7 would show that the said Ex.P5 termination notice was duly served upon the defendant. He further contended that DW1 in his cross-examination admitted the address forthcoming in Ex.P7 postal acknowledgment. He further contended that if the termination notice sent to the correct address of the tenant it is a deemed service under law. In order to substantiate his contention he placed his reliance upon the decision reported in ILR 2007 Kar page 379 . Apart from that what he contended that the very Ex.P7 postal acknowledgment itself clearly shows the Ex.P5 termination notice was duly served upon the 25 defendants. So he contended that the plaintiff has validly and legally terminated the tenancy of the defendant in accordance with law.
18. He further contended that the defendant in his written statement contended that the alleged termination notice sent by the plaintiff is a premature one as because the grand father of the plaintiff Raja Sathya Narayana Shetty executed lease agreement for 15 years, i.e., from 15.7.2006 which is valid and subsisting till 15.7.2021, as such the alleged termination notice sent by the plaintiff is a premature one. So far as the said contention of the defendant what he contended that though the lease agreement dated 15.7.2006 is not produced in this case, but there is no dispute with regard to the factum of execution of the said lease agreement in respect of the suit schedule property. He further contended that the said lease 26 agreement dated 15.7.2006 is an unregistered document. He further contended that if any lease agreement exceeding more than 11 months that must and should be registered under section 17 of the Registration Act and also section 49 of the Registration Act would says about the consequences of non- registration of compulsory registerable document. He further contended that section 107 of the Transfer of Property Act is also very clearly says that as lease of immovable property is from year to year or from any term exceeding one year can be made only by registered instrument. He further contended that admittedly the above referred lease agreement dated 15.7.2006 is an unregistered document and the said fact has been admitted by DW1 in his cross- examination. When that would be the case the tenancy of the defendant is a month to month tenancy and the 27 contention of the defendant that the termination notice sent by the plaintiff is a premature one cannot be accepted. What he contended that on the basis of the unregistered lease agreement dated 15.7.2006 the defendant cannot be protected. In support of his arguments he has relied upon the following decisions:
(1) AIR 2006 Kar page 295 between Smt.G.Kusuma Devi Vs. Smt.Gowramma and others.
(2) AIR 1995 SC page 2482 between Janki Devi Bhagat Trust, Agra Vs. Rama Swarup Jain (dead) by legal representatives .
(3) AIR 1952 SC page 23 between Ramakumar Das Vs. Jagadish Chandra Deb Dhabal Deb and another.
19. He further contended that the above said decisions would clearly says that if lease agreement exceeding more than 11 months that must and should be registered, if not then the tenancy between the 28 parties is a month to month tenancy. In the present case also the evidence on record would clearly shows that the lease agreement dated 15.7.2006 is an unregistered document, as such the contention of the defendant that his tenancy cannot be terminated till 15.7.2021 cannot be accepted and the contention of the defendant that termination notice sent by the plaintiff is a premature one and in view of the subsisting tenancy till 2021 he has to be protected cannot be accepted.
20. He further contended that the defendant contending that he is not a defaulter in the matter of payment of rent and there is no lapses on the part of the defendant either in payment of monthly rent and also enhanced rent, i.e., once in three years. So also he contended that it is not the case of the plaintiff that the defendant has not caused any damage to the 29 suit schedule property and contended that absolutely there is no reason for the plaintiff to terminate the tenancy of the defendant. So far as the said contention of the defendant what he contended that the plaintiff need not state the reason for termination of tenancy. The plaintiff if not interested in continuing the tenancy of the defendant he can terminate the tenancy of the defendant. He further contended that the very evidence on record would show that after 2015 the defendant has stopped payment of rent. Even he has not made any attempt to deposit the rent in the court. What he contended that the defendant in his evidence stated that the plaintiff has refused to receive the rent, if the plaintiff has refused to receive the rent the defendant could have deposited the rent in the court in respect of the suit schedule property to show his bonafideness. So he contended that the defendant 30 after 2015 has stopped payment of rent, apart from that in a suit for ejectment the plaintiff need not state the reasons for ejecting the tenant from the suit property. So he contended that the over all evidence on record would clearly shows that there is acceptable evidence to show the jural relationship of landlord and tenancy in between the plaintiff and defendant and also the evidence on record would clearly shows that the plaintiff has validly and legally terminated the tenancy of the defendant. In view of his above arguments and decisions he urged to answer issue No. 1 in the Negative and issue No. 2 in the Affirmative.
21. The learned counsel for the defendant during the course of his arguments mainly contended that the defendant is a tenant in respect of the suit schedule property under Raja Sathya Narayana Shetty, but not under plaintiff as claimed by him. It is the main 31 contention of the learned counsel for the defendant that the documents placed before the court by the plaintiff claiming that he has acquired the suit schedule property by virtue of the gift deed executed by his grand father are created and concocted documents. He further contended that Raja Sathya Narayana Shetty during his last days was not in a fit condition to execute the alleged gift deed in favour of the plaintiff in respect of the suit schedule property. He further contended that the daughters of late Raja Sathya Narayana Shetty by name Parijatha has filed suit against the plaintiff disputing the titles of documents of plaintiff and also claiming share in all the properties of late Raja Sathya Narayana Shetty. He further contended that in fact the said Parijatha, daughter of Raja Sathya Narayana Shetty approached the defendant demanding rents claiming share in all the properties 32 left by late Raja Sathya Narayana Shetty. So he contended that unless the rights and title claimed by the plaintiff and other legal heirs of late Raja Sathya Narayana Shetty is determined, the plaintiff alone has no right to terminate the tenancy of the defendant. He further contended that the defendant is very prompt in the matter of payment of monthly rent. The averments made in the plaint would clearly shows that it is not the case of the plaintiff that the defendant has not paid the monthly rents regularly nor he has caused any damage to the suit schedule property nor he has acted in contrary to the terms and conditions mentioned in the lease agreement dated 15.7.2006 executed in between Raja Sathya Narayana Shetty and the defendant. He further contended that the plaintiff has deliberately not produced the original lease agreement dated 15.7.2006 and admittedly the said document is 33 not marked before the court. What he contended that the said lease agreement was executed by Raja Sathya Narayana Shetty in favour of defendant in respect of the suit schedule property for a period of 15 years and the same is going to be expired on 15.7.2021. So he contended that absolutely there is no reason for the plaintiff to terminate the tenancy of the defendant and the alleged termination notice sent by the plaintiff is a premature one, as such on the said score itself the suit of the plaintiff is liable to be dismissed. In support of his arguments he has relied upon the decision rendered in (1) LAWS (DLH) 2012-2-29, High Court of Delhi and another decision reported in (2) (2006)4 SP 517.
22. The learned counsel for the plaintiff during the course of his arguments contended that from 2015 onwards the defendant has stopped to pay the rent and that aspect itself shows that the defendant is not 34 regular in the matter of payment of monthly rent. So far as the said contention of the learned counsel for the plaintiff what he contended that in fact the defendant was regularly paying rent through cheque to the account of Raja Sathya Narayana Shetty during his life time and after his demise also he has sent cheque for Rs.29,298/- being the rent in respect of the suit schedule property to the plaintiff, the plaintiff sent Ex.P9 notice saying that he is receiving the said amount towards damages but not as rent and also he contending that he is receiving the said amount under protest as damages but not as a rent. So the defendant has stopped the payment of monthy rent. So he contended that absolutely there is no lapses on the part of the defendant and the plaintiff has deliberately deposed in his evidence that the defendant has not paid rents after 2015.
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23. He further contended that absolutely there is no jural relationship of landlord and tenant in between the defendant and plaintiff. The lease agreement dated 15.7.2006 was entered in between Raja Sathya Narayana Shetty and the defendant, apart from the said document there is no any other lease agreement or fresh lease agreement in between the defendant and the plaintiff. He further contended that in fact PW1 in his cross-examination admitted that there is no lease agreement in between himself and the defendant. What he contended that the said evidence given by PW1 in his cross-examination itself would clearly shows that there is no jural relationship of landlord and tenant in between himself and the defendant. He further contended that when the plaintiff is not the landlord of the suit schedule property he has no right to terminate the tenancy of the defendant. He further 36 contended that Ex.P5 alleged termination notice is not at all served upon the defendant. The lease agreement dated 15.7.2006 clearly says that the same was executed for a period of 15 years and it is going to be expired on 15.7.2021, as such till the expiry of the said date the tenancy of the defendant cannot be terminated and he has to be protected till 15.7.2021. So he contended that the alleged Ex.P5 termination notice is a premature notice and for any purpose the said notice cannot be taken into consideration. He further contended that when there is no lease agreement in between the plaintiff and defendant, the plaintiff has no right to terminate the tenancy of the defendant and the alleged Ex.P5 termination notice is not valid in the eye of law. When such would be the case the contention of the plaintiff that he has validly and legally terminated the tenancy of the defendant 37 cannot be accepted. So in view of his above arguments he urged to answer issue No. 1 in the Affirmative and issue No. 2 in the Negative.
24. In the light of the arguments canvassed by the respective counsels for the parties I have gone through the records and also the decisions relied upon by the respective counsels for the parties.
25. Admittedly this is a suit filed by the plaintiff to direct the defendant to quit, vacate and handover the vacant possession of the suit schedule property and also sought for mesne profits. Upon hearing the rival contentions it would show that absolutely there is no much dispute with regard to the factum that originally the suit schedule property was belonged to Raja Sathya Narayana Shetty. So also upon hearing the rival contentions of the parties it would show that there is 38 no much dispute in between the parties that the defendant is a tenant in respect of the suit schedule property and the lease agreement was entered in between Raja Sathya Narayana Shetty and the defendant. So also absolutely there is no dispute with regard to the factum that at the earliest point of time the defendant agreed to pay monthly rent of Rs.15,000/- and it was agreed to enhance the rent at 25% once in every three years and the present monthly rent in respect of the suit schedule property is Rs.29,298/-.
26. The main contention of the plaintiff is that Raja Sathya Narayana Shetty who is none other than his grand father gifted the suit schedule property under Ex.P1 gift deed dated 30.8.2016. As such he became the absolute owner of the suit schedule property. It is the contention of the plaintiff that the defendant was 39 depositing the rent in the joint account of himself and his grand father Raja Sathya Narayana Shetty. It is the contention of the plaintiff that after the death of Raja Sathya Narayana Shetty the defendant once paid rent to him and he is very well aware of the factum of the suit schedule property gifted to him by his grand father Raja Sathya Narayana Shetty. Per contra it is the contention of the defendant that he is not the tenant under plaintiff, but is a tenant under Raja Sathya Narayana Shetty and also he has not disputed the admitted rate of rent agreed in between him and Raja Sathya Narayana Shetty. It is the contention of the defendant that Ex.P1 alleged gift deed claimed by the plaintiff is a concocted and created document. It is the contention of the defendant that Raja Sathya Narayana Shetty was very cordial with all the tenants and he was having huge property in Bengaluru and 40 also intended to sell the properties to the tenants who are in occupation of the same. After the death of Raja Sathya Narayana Shetty the defendant claiming that he is the absolute owner of the suit schedule property by virtue of alleged Ex.P1 gift deed executed by Raja Sathya Narayana Shetty. It is the further contention of the defendant that Raja Sathya Narayana Shetty executed lease agreement in respect of the suit schedule property for a period of 15 years on 15.7.2006 and the same is valid and subsisting till 15.2.2021, as such the alleged termination notice sent by the plaintiff is a premature one and apart from that the plaintiff has no locus standi to terminate the tenancy of the defendant. So also it is the contention of the defendant that absolutely there is no reason for the plaintiff to terminate the tenancy of the defendant. 41 So on the above said main grounds he sought for the dismissal of the suit.
27. In the light of the above main contentions of the parties I have gone through the records. Ex.P1 is the gift deed dated 30.8.2016 executed by Raja Sathya Narayana Shetty in favour of plaintiff in respect of the suit schedule property. The evidence on record would show that admittedly the lease deed entered in between Raja Sathya Narayana Shetty and defendant on 15.7.2016 is not marked in the present case, however the copy of the said document is available in the record. The evidence on record would show that there is no much dispute with regard to the execution of the said document. The contention of the defendant is that Ex.P1 gift deed is a got created by the plaintiff by playing fraud. Though he contended like so, but in proof of the same there is no acceptable evidence. 42 The evidence on record would show that and also in fact PW1 in his evidence admitted that there is no lease agreement in between himself and the defendant but the point to be considered here is that in the absence of lease agreement in between plaintiff and defendant whether he has got right to terminate the tenancy of the defendant or not ? In my view certainly the plaintiff has got every right to terminate the tenancy of the defendant. If the landlord transfer his right in respect of the property in favour of any person the said person would acquire all the rights of the landlord. In this regard the dictum laid down by their lordship in a decision reported in AIR 2015 SC page 2459 between Ambica Prasad Vs. Alam and others is aptly applicable to the present case in hand. In the said judgment at para No. 17 their lordship has observed as under:
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"Section 109 of Transfer of Property Act - 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."
28. Looking into the above dictum laid down by their lordship it is manifest that after the transfer of lessors right in favour of the transferee the later gets all rights and liabilities of the lessor in respect of subsisting 44 tenancy. Apart from that section 109 of Transfer of Property Act is very clear and which says that the transferee would get all rights and liabilities in respect of the lessor in respect of the subsisting tenancies. When that would be the case the contention of the learned counsel for the defendant that the plaintiff has no right to terminate the tenancy of the defendant cannot be accepted.
29. Another important aspect to be taken note of here is that though the defendant has denied the factum of execution of Ex.P1 gift deed by Raja Sathya Narayana Shetty in favour of plaintiff in respect of the suit schedule property and also contended that the said documents is outcome of fraud, but the very evidence given by DW1 in his cross-examination would show that though he is very well aware of the factum of execution of Ex.P1 gift deed by Raja Sathya Narayana 45 Shetty in favour of plaintiff in respect of the suit schedule property deliberately for the best reasons known to him he is falsely contending like so. At this stage it would be relevant to quote the above said evidence given by DW1 in his cross-examination at page No. 7, 2 nd para in the middle portion wherein he deposed as under:
"ನ.ಪ.7 ಅಅಚಚ ಹಅಬರಹದಲಲ ಕಅಡಡಬರಡವ ವಳಳಸ
ದಳವಳ ಸಸತತನ ವಳಳಸ ಎಅದರಚ ನಜ . ನ.ಪ.5, 7
ನಚನನಟಸಸ ಕಳಡಹಸದ ನಅತರ ನಳನಡ ದಳವಳ ಸಸತತನ
ಬಳಡಗಚಯನಡನ ಈ ಕಚನಸನ ವಳದ ಹಚಸರನಲಲ ಚಚಕಡಕ
ಮಡಖಳಅತರ ನನಡಡತತದಚದನ ಎಅದರಚ ನಜ . ವಳದ ನನನ
ಬಳ ಬಅದಡ ರಳಜಳಸತತನಳರಳಯಣ ದಳವಳ ಸಸತತನಡನ ದಳನ ಪತತದ ಮಡಖಳಅತರ ನನಗಚ ನನಡರಡತಳತರಚ ಎಅದಡ ಮಮಖಕವಳಗ ತಳಸದಡದ ಅದರಅತಚ ನಳನಡ ಅವರ ಹಚನಳಕಚಯ ಮನರಚಗಚ ದಳವಳ ಸಸತತನ ಬಳಡಗಚಯನಡನ ಅವರ ಹಚಸರಗಚ ನನಡಡತತದಚದನನಚ ಎಅದರಚ ನಜ ."
30. The above evidence given by DW1 in his cross- examination would clearly shows that the plaintiff 46 informed him about Ex.P1 gift deed executed by his grand father in his favour in respect of the suit schedule property and for that reason the defendant paid rent to the plaintiff. The said evidence of DW1 would clearly shows that the defendant by admitting the plaintiff is the landlord and he is a tenant under him he has paid the rent. So also the very evidence given by DW1 in his cross-examination would clearly shows that Ex.P5 termination notice was duly served upon the defendant and which is very evident from Ex.P7 postal acknowledgment. When that would be the case the contention of the defendant that the plaintiff has no locus standi to terminate the tenancy and he has not received Ex.P5 termination notice cannot be accepted.
31. Now coming to the contention of defendant that Ex.P5 termination notice is a premature one. What the 47 defendant contended that Raja Sathya Narayana Shetty executed lease agreement in respect of the suit schedule property for 15 years, i.e., from 15.7.2006 to 15.7.2021, as such the lease period is still subsisting and Ex.P5 alleged termination notice is premature one and on the said ground itself the suit of the plaintiff is liable to be dismissed. So far as the said contention of the defendant is concerned it can be said that admittedly the lease deed dated 15.7.2006 is an unregistered document and the said fact has been admitted by DW1 also in his cross-examination at page No. 7 last one line and at page No. 8, 1 st line, wherein he deposed as under:
" ನನನ ಮತಡತ ರಳಜಳಸತತನಳರಳಯಣರವರ ನಡಡವಚ ನಚನಅದಣ ಬಳಡಗಚ ಕರಳರಡ ಪತತ ಆಗರಡವವದಲಲ ."
32. So the above evidence would clearly shows that the above referred lease agreement according to the 48 defendant is for 15 years and it is an unregistered document. The law is well settled if any lease agreement is for more than 11 months that must and should be registered. Section 107 of the Transfer of Property Act also clearly says that a lease of immovable property from year to year or from any term exceeding one year can be made only by the registered instrument. When that would be the case and when the above referred lease agreement dated 15.7.2006 is not registered document the contention of the defendant that the tenancy of him cannot be terminated till 15.7.2021 cannot be accepted. When the lease deed is for more than one year it must and should be registered, if not so then the lease period between the parties is only from month to month tenancy commencing from 1 st of each calender month and ending on the last date of the said month. In this 49 regard the dictum laid down by their lordship in a decision reported in AIR 2006 Kar page 295 between Smt.G.Kusuma Devi Vs. Smt.Gowramma and others is aptly applicable to the present case in hand, wherein their lordship held as under:
"Transfer of Property Act, 1882 Section 53-A, 106, 109 - Registration Act, 1908 - Sections 2(7), 17(1)(d), 49 - Non-registration of lease deed - the lease of immovable property for any term exceeding one year can be made only by registered instrument. In the absence of registered instrument the lease must be a monthly lease and not yearly lease or a lease beyond one year."
33. In the above referred decision it was clearly held by their lordship that in the absence of a registered lease deed the lease shall be deemed to be from month 50 to month as contemplated under the provision of section 107 of the Transfer of Property Act. When that would be the case the contention of the defendant that his tenancy cannot be terminated till 15.7.2021 cannot be accepted and also the contention of the learned counsel for the defendant that the tenancy of the defendant has to be protected till 2021 cannot be accepted. Apart from that the defendant himself in his written statement at para No. 12 admitted that the tenancy of him is month to month tenancy commencing from first of each calender month and ending on the last date thereof. When things stood like so and when the law is very clear the contention of the learned counsel for the defendant Ex.P5 termination notice is a premature notice cannot be accepted.
34. The learned counsel for the defendant contended that the daughters of late Raja Sathya Narayana Shetty 51 by name Parijatha has filed suit against the plaintiff disputing the title documents of the plaintiff and is claiming share in all the properties of late Raja Sathya Narayana Shetty. So also he contended that in fact the said Parijatha approached the defendant demanding rents claiming share in all the properties left by late Raja Sathya Narayana Shetty. So he contended that unless the rights and title claimed by the plaintiff and other legal heirs of late Raja Sathya Narayana Shetty is determined the plaintiff alone has no right to terminate the tenancy of the defendant and in support of his contention he has placed his reliance upon Ex.D1 to Ex.D6, i.e., suit filed by said Parijatha against the plaintiff. So far as the said contention of the learned counsel for the defendant it can be said that there may be a dispute in between the family members with regard to the division of the property, but one of the 52 family member has got every right to file suit for ejectment. Apart from that admittedly the defendant is a tenant, section 116 of the Indian Evidence Act clearly states that the tenant cannot suppose to question the title of the landlord. When that would be the case whatever the above said contention taken by the defendant cannot be accepted. The learned counsel for the defendant further contended that the whole plaint averments would show that no where the plaintiff stated that the defendant is in due of arrears of rent, or he caused damage to the suit schedule property or he done any act contrary to the terms and conditions mentioned in the lease deed executed by Raja Sathya Narayana Shetty in favour of the defendant. So what he contended that absolutely there is no reason for the plaintiff to terminate the tenancy of the defendant, as such the suit of the plaintiff is liable to be dismissed. 53 So far as the said contention of the learned counsel for the defendant it can be said that in a suit for ejectment there is no need for the plaintiff to state the reasons for termination of tenancy. If the landlord is not interested in continuing the tenancy of the tenant he has got every right to terminate the tenancy. Apart from that though the learned counsel for the defendant submitted that the defendant is not defaulter in the matter of payment of rent, but the very evidence given by DW1 in his cross-examination at page No. 8 would show that he has not paid rent from October 2015. At this juncture it would be relevant to quote the said portion of evidence given by DW1, which reads as under:
"ನ.ಪ.9 ನಚನನಟಸಸ ತಲಡಪದ ಬಳಕ ಅವರಗಚ ಬಳಡಗಚ ಬಳಪವತ ಒಅದಡ ತಅಗಳ ಬಳಡಗಚಯನಡನ ಚಚಕಡಕ ಮಡಖಳಅತರ ನನಡದಡದ ನಅತರ ಇಲಲಯವರಚಗನ ಬಳಡಗಚ ನನಡರಡವವದಲಲ ಎಅದರಚ ನಜ . ನಳನಡ ನ.ಡ.1 ರಲಲ 54 ಇರಡವ ವಳದ ಪಳರಜಳತರವರಗನ ಸಹ ಬಳಡಗಚ ನನಡರಡವವದಲಲ . ನಳನಡ ನಳತಯಳಲಯದಲಲಯನ ಸಹ ದಳವಳ ಸಸತತನ ಬಳಡಗಚಯನಡನ ಡಪಳಸಟಸ ಮಳಡರಡವವದಲಲ ಎಅದರಚ ನಜ ."
35. The perusal of Ex.P9 notice dated 22.9.2015 sent by the plaintiff would show that the cheque for Rs.29,298/- was sent by the defendant and the plaintiff has stated in the said notice that the same is adjusted towards determination of damages. So the above evidence given by DW1 would clearly shows that from October 2015 onwards he has not paid rent till this date in respect of the suit schedule property. If according to the defendant the plaintiff has refused to receive the rent or the plaintiff contending in Ex.P9 that whatever amount sent towards rent that would be adjusted towards damages, the defendant could have made an application to the court seeking permission to deposit the rent in the court, but the same has not 55 been done by the defendant. Apart from that as it is already stated above in a suit for ejectment there is no need for the landlord to state the reasons for terminating the tenancy.
36. So by considering the over all facts and circumstances and also the oral and documentary evidence on record it can be said that the plaintiff has placed acceptable evidence before the court to show the jural relationship of landlord and tenant between himself and the defendant. When that would be the case the contention of the defendant that there is no jural relationship of landlord and tenant in between himself and the plaintiff cannot be accepted. So also the evidence on record would clearly shows that the plaintiff has validly and legally terminated the tenancy of the defendant in accordance with section 106 of the Transfer of Property Act. When that would be the case 56 this court has left with no option except to answer issue No. 1 in the Negative and issue No. 2 in the Affirmative. Accordingly issue No. 1 is answered in the Negative and issued No. 2 is answered in the Affirmative.
37. Issue No. 3: The plaintiff contended that after terminating the tenancy of the defendant by causing Ex.P5 termination notice the occupation of the defendant in the suit schedule property is an unauthorised occupation, as such the plaintiff is entitled for damages at the rate of Rs.50,000/- per month. Though the plaintiff claims damages at the rate of Rs.50,000/- per month, but to prove the factum of the suit schedule property where it is located would fetch Rs.50,000/- per month no acceptable neither oral nor documentary evidence has been placed before the court. When such would be the case the said aspect 57 cannot be adjudicated in the present case in hand. However the same shall be determined in a separate enquiry under Order 20 Rule 12 C.P.C. Accordingly issue No. 3 is answered.
38. Issue No. 4: In view of my findings to the above issues the plaintiff is entitled for the reliefs as sought by him. Accordingly issue No. 4 is answered in the Affirmative.
39. Issue No.5: In view of my findings to the above issues, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby decreed with cost.
The defendant is hereby directed to quit, vacate and deliver vacant physical possession of the suit schedule property to the plaintiff within five 58 months from the date of this order. Failing which the plaintiff is entitled to take steps in accordance with law.
So far as the mesne profits claimed by the plaintiff is concerned, the same shall be determined in a separate enquiry under Order 20 Rule 12 C.P.C.
Draw decree accordingly.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in the open court on this the 3rd day of February 2020) (Sadananda M.Doddamani) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE Witnesses examined for the plaintiff/s :
PW1 - Sharan Raja Shivakumar Witness examined for the defendant/s :
DW1 - Hasrath Haji Ilyas 59 Documents marked for the plaintiff/s :
Ex.P1 - Certified copy of gift deed dated 30.08.2016 Ex.P2 - Khatha extract Ex.P3 - Khatha certificate Ex.P4 - Bank statement Ex.P5 - Notice copy Ex.P6 - 2 Postal receipts Ex.P7 - Postal endorsement Ex.P8 - Unserved postal cover Ex.P9 - Notice copy Ex.P10 - 2 Postal receipts Ex.P11 - Postal endorsement Ex.P12 - Unserved postal cover Documents marked for the defendant/s :
Ex.D1 - Certified copy of plaint in
O.S.No.126/2016
Ex.D2 - Certified copy of written statement in
O.S.No.126/2016
Ex.D3 - Certified copy of plaint in
O.S.No.7345/2015
60
Ex.D4 - Certified copy of written statement in O.S.No.7345/2015 Ex.D5 - Certified copy of plaint in O.S.No.4057/2014 Ex.D6 - Certified copy of plaint in O.S.No.4057/2014 (Sadananda M.Doddamani) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
61 Judgment pronounced in the open court (vide separate detailed Judgment) ORDER The suit of the plaintiff is hereby decreed with cost.
The defendant is hereby directed to quit, vacate and deliver 62 vacant physical possession of the suit schedule property to the plaintiff within five months from the date of this order. Failing which the plaintiff is entitled to take steps in accordance with law. So far as the mesne profits claimed by the plaintiff is concerned, the same shall be determined in a separate enquiry under Order 20 Rule 12 C.P.C. Draw decree accordingly.
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
63