Karnataka High Court
M/S.M B Silks Centre vs M/S.Rajesh Exports Limited on 14 June, 2011
Author: V.Jagannathan
Bench: V.Jagannathan
IN THE HIGH COURT OF KARNATAKA AT BANGALORE u. Dated the 14 day of June 2011 'BEFORE: R.JUSTICE : V.JAGANNA ATHAN - ba In R.F.A.No. 1478 / 2010 : Mje M.B.Sike Centre, «.. . @ proprietary cor nh carry ing : or. business at Shop Ne. 313, ---- Mohan Buildir BB ick pote, Bangalore ~ 560 054, r represni by its proprietor: Sri Bhawarlal. : In RF A.No. 1480 / i 2010: M/s Sha Mittalal Ne arendy: "a Kumar & C COL, & proprietary. conoern carrying on business at Shon No. S14, Mohan Buildings, C hicke pete, . Bangeiore = 560 053, represented 7 by its: proprietor "Sri Narendra Kumar. Ip BRE Ey M/s B B Arvind | Syndicate, _ @ proprietary concern carrying on business at Shop No.797, Mo Bengal Buildings, Chickapete, ° Ban slore -- 560 053, represented by its proprietor Sri Du 'In R.F.A.No. 1485 / 2010 : é eb z j M/s B.Arvirdd Syndicate, F KARNATAKA HIGH CO! ©) y" ¢ 7 3H COUR G KA HIE KARNATARY wm e URT ¢ VATE TOAD SUROAT TEED Sete EE WE BOC RUAP AE Pei LUIW a a proprictary concern carry business at Ener No.797, Mohan B 8, Chickapete, Banga: ~ 560 053. _ ; Mose, : » Appeiants AND: M/s Rajesh Exports Limited, & public limited company ineorperated" under the provisions of the Company' s Act, ' stered office at No.4, - ambers, Kumara Krupa ond Bast, . Respondent (Common) ( By Sric 8.1 Kannur & Sci i i TAnend, Advocates. ) Regula: Firat tAp xia bs S filed urgler Sectio C.P.C. againat the 13.7.2010 eassed oe O.S.Nos. ~ AT425; (2006, £7424 / 2006 and 7469/7 2006 "respectively, on the file of the XXVI Addl. City Civil & lore (CCH-20), decrening, the Bi its for possession, arrears of rent Seasions Fudd ' Mayo ¥ These appeals coming on for hearing this day, court delivered the following : BRA Pa IR, a inasmuch as the plaintiff being one and the s Kae ore the trial court in O.S.Nos. 17387, 17 7425, 1742 14 & 17469/ 2006 and in all ls, the defendants : in the suits meritio @ decree at | court inasmuch as the suits » filed | by spondent-plaintiff for ejectment, koreans of 1 rent ami dam yea came to 'be Hecresd | by directing the defendants to hand One the vac ant poe session of the tute premises 'to the: re eepond it-p to pay arrears oft cnt at Ra.2C O/+ per month from 9. 2 9.2005 OS "to, a1, 10,2008 and thereafter from 1.1 1.2008 a handing over: r possession at Re.500/- per month. 2.) 'Since the Sontentions taken by the respective parties befo re the trial court being one and the sa née in all aforementio ned suits and the arguments advanced the learned courmel for the parties also being one a BRA PS, COL ZO), e Sea Pr BT Sea Rad WM, 3 "being. "under. "the separate occ 3 are disposed of by this common ji 3. The respondent-plaintiff, a public ~ limited. rcial complex. known BS company, purchased a cor "Mohan Buildings" ring Nos. 775 tn 'B09, Old Nos: 253-272, situated at OTC Read, 1, Chickapete, Bangalore City, urmler a public auction conduc ited by. the bicon ze Tax Department on 8.5,2004 and 1 pursuant thereto, a gale deed was executec 1 by the Income Tax i in favour of. the: "respondent plainttt on 9.2, atha in respect of the entire cor posite property was ed in. the name of "the: plaintiff and the said complex consisted oof | forty-three shops having distines ive' "sho "8 numbers, which are independent and . oF ation of lante in the suite referred to earlier were the" 'te nante in occupation of their respective = portions bearing shop Nos. 313, 314, 797 and 797. It AKA HIGH COURT OF KARNATAKA HIGH é JRT OF KARNATAKA HIGH COURT OF KARNAT WW WE WT AMI LANG MiG Co 4. It was also contended by the reapondent-plaintiff. ~ it, pursuant to the public auction that waz. conducted - on the aforementioned date, the defendar tits in the suite: with which we are concerned. in these ape peais, filed came to be diomisced aa witha AWD, | iW the abso ha te owner of the premises in occupation % are liable t > pay damages at the rate of Rs.7,300/- per pont fer 1.11.2005 to 30.11.2006 and stating that legal notices iasued terminating the tenancy also having - baclno salutary effect on the respective defendants, the suits came to be filed seeking the 4 < me Zz we COURT .
C MARINATAICA HIGH rilwrt COUR statua. can be eqi vated to that of il] "was also » contended by res pecti tive shops as unauthorised occupants / ill PPE ROE A ort Be, ET TE LEO EIR OR respective deferidants and to direct the said defendants to pay Ke.46,800/- as arr of rent upto October 2005 and thereafter till 30.11.2006 at Rs.7,300/- per © month, | ¢ llants herein, who are) some -of the tenants and the defendants 4p. the suits, tookup the corntenition that the monthly rent that wat. paid by the the then defendants was R5.149/ and it was paid to rv. Sri Vidyawathi _ Kapoor Trust thereafter, folowing, the notices iz asued by the Income "on 12.3.1 1991, 'the statue of the defendants as te santa, no 'longer wae there and they ceased to be the 'enaut® though in l terms, the al occupants. It spective defendants that, ubséaue fit to 'issuance of motices under the Public ef "ee {Eviction of Unauthorised Occupants) Act, i j _ (97, the defendants were in possession of the occupeiite and as Afteen Yeers nec Siapecc since the issuance of notices by the Income Tax Department and coh a8 ake MS ben at Z "g o oe! ra) _ mae Boe EOLA PP vdeuiw! tising thie old struct as no action has been taken to evict the defendants from the shop premises in question, the defendants acquired possessory title over the shop premises. "by. havi been in uninterrupted Possession. fark occupation for more than sixteen. years and, as such, | title over. the respective @: uit the defendants acqui premises by way of a sé possession:. Therefvre, the ntl were. 2 lable: to be diamissed:
rewnid stand taken In eusence, rt from fhe afe fis the defendants also averred. in th cir wri itten atat that there was.axi Mc 0. U: 'between the plaintiff and M/s Mohan Building 7 ronants "Association in the month of May 2 and ae ber the terms of the said M.O.U., the . plain' at had agreed to develop the property by and by constructing a new structure. on the premises and had agreed to sell to each of the tenants, who are in occupation of the existing premises a shop at the rate to be fixed in the 'said, MLO.U, It was also averred in the written court by suppressing certairi material factzs and the , ee fe _ 2 a bot e ® TAKA HIGH C \RNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNA) & Pe, SIAL Mort LOUK ED Oe os)
- &.
vy). Does defendant prov KWH Se eM" He CH HE Vay HY M.O.U, ig binding on the plaintiff-company and, therefore, the suits for ejectment are not As fer as the arre: of rent concerned, it was contended by the defendants. that.
there existed no jural | ship of landlord and . With the aforesaid stand itten atatemer at, the dete ndants solight dismuseal of the suit. sult : schedule provert} ty?
ii) Does plaintiff proves chat it has + gos as a Whe nether plaintiff i is erititled for arrears of rentals amount g to Rs.46,800? is) «6Oertitled§ for Whether plain emounting to Rs.94,900? by adverse poaseasion? HIGH COURT OF KARNATAKA HIGH AMS FRG WUUKE Jr RARNATAKA HIGH COURT OF KARNATAKA ee FRO HL W gh mentioned in the? he "jue pert or. the
vii) Whether plaintiff is entitled for the reliefs claimied . in the plaint?
t decree or order?
9. After evidence appreciation, which inthided one ned on the Side of t thes plaintiff and the respective defendanta ; £8 D. Wot a 'and the documents Exs.P-1 to P-10 om the gids of the plaintiff 'and Exs.D-1 parties and. taki ng note: on the decisions cited before ately decreed. the sults of the | of is ju x at court that hes driven the respec tive défe nidants to approach this court in these "1G. heve heard learned counsel Shri Paras Jaim for _ the appellante-defendants and learned counsel Shri RNATAKA HIGH CO Meh PLETED EO OU LURE Or KARIN AT a ee ~Plaintit aia te ot take any action deapite issui
- spe "right of the aeoatr ae G.S.Kannur for the respondent-plaintiff and perused the material on re 1ed counsel Sri. Paras Jain for the appellante, - contended that there is no | t relationship :
between the appellants and the r eoponder nt plaintil dite as much as, following termination 1 of the tenancy by tine ment of Indie ie. the incor 2¢ 'Tax De: riment, the appellants continued' to. be, in. ectu ation of the tive premises and. thore tha a6 had elapsed even ar the notice of tenmination issued by the Income Tax! Depart tment band as 'such, the appellan rie 'in law 'owners by virtue of they be poasession of the respective premisea. The appellants therefore got possessory title as the vendor of the fniotice of term nination to a the 1 tenants, continued occupation by the ee ints for more 16 years had led to the appeliants making a claim over their res; premises even on the ground of adverse possession. The KARNATAKA HIGH ae & RY OF aA oe a we iG agg ae ag Bess < e x w* a a 4 aad oe wy e a us ome a Bes ek Gol OB PO Ohh a laa the te:
"Was no ag geo goth the period of limitation and therefore the plaintiff could not have derived any title in respect of the ertire ercial complex i¢, Mohan Buildings, -not. cuted in favour of the. partment, counsel corit tended that whi lanta herein who were one t asi had ng conwidered: as. teri nanis under tl ti herein dows not arise.
- contended by é the landlord's. recaedy recover possession of his ¥ from his tenant 'becomes | where. such tenant 'continues in possession of that 2 mination of the lease for the full y after the ter £& term of the statutory when there is no agreement between him a y will not contin _ 13. In the instant case, it waa contended that, there a | ee
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OURT OF KARNATAKA HIGH COURT O ps C ht MG KA H WRI A ISU OO PE AEA E DENTE ee SARS .. 65 of the Limitation Act is 12 years be 'date when the possession of the defem oe 7 adv 74 the appellants nor was there any fixation of rent and therefore the tri i court was in error in holding that the the tenants under the responce tit it was his specific ument that, 'after, thie, * of the od fixed, if the tenant 'continties to Min possession of the land, he bs by severance. Since the Inco: me. Tax Department had e ines tf Hloering the lost the title over the p remaining in possession for over J 6: ye sfoTre CE not derive a better wile fr Therefore, it | * ange : "that the transferor as the | rd cannot. corive vey to > ie, transfe 2 @ better ttle ae a] what. he ee | hd aa as the suit is filed for ail Lieaitation Act: ip > therefore applicable in such casea.
14. As the limitation period pr ge e to the plaintiff, the suit has to be filed within 12 OF KARNATAKA HIGH CO OSTA LAINE. Pils SEMI CHEE B. Se ost WO F Sy os hak defendant become adverse. Therefore, if the period is reckoned from the date of notice by the Income Tax Department, the appellants herein had perfected their | title by way of adverse posseseion ard therefore, the sale deed executed by the Income Tax De pari sent in favour of the r spondent cannot convey any righ YE tO > ihe 3 respondent. It is the further ribmisaion of Sr i 'Paras Jain that when the teruanit cotitinu i ae in astesi ii po contravention of the terms of lease, such possession is neither legal nor. lawful is ut orily.ae tenarit at sufferance. refore, the tena nt at "gufferan 106 is the one who 8 ion after the te:
lly continues in pes of the tenancy and whets othe tenant continues in possesaion withou it. the consent of the landlord, it 7 becomes a | cave of the tenant by sufferance.
15. "The albresaid submission was supported by the earned Counsel Sri.Paras Jain by relying on the cisions of the Apex Court and other Courts as well rted in AIR 2004 SC 3782, AIR 1922 % EY gone % Pegs go a.) LES% 2% eg ¥ 4 er Privy Council 184, (2008) 12 SCC 577, AIR 1927 KARNATAKA oF 5H COURT ¢ a al ee SA ETERS PE WRG SR pry PAP SS, GR 3 % e BRR GAH R _ granted a decree in favour of th e plaintiff. Re AIR 1922 IABAD 423, AIR 1970 RAJASTHAN 68, (2006) 4 SCC 482, (2007) 11 SCC 285, (1995) 5 SCC , AIR 1965 ORISSA 11, AIR (1993) 4 SCC 375, 1924.
PATNA 572, (2007) 9 SCC 641, AIR 1984 am 3 Ik 1940 LAHORE 410, 1922 PRIVY COUNCIL 184, SCC 693 & (2006) 7 SCC 416.
16. Another facet of the a Counsel Sri. Pazas Jai for, the appellants is ad has not coe ta the court with clear the avermenta pita fin th plaint ig not supported by a any "evidence and when the rent itself was. not fixed, the question of the appellants paying rent of Rs.4,000/ - per month dees not arise and the trial court fgiled to take note of euch a stand taken L court could mot have by the plaintiff arxl the the Apex Court's decision reported in (2006) 7 SCC 416 to contend that where a decision is obtained by fraud, such decision is liable to be set aside, because a oe moe Qe peo Zz 4 "
Se 6 3 a iD ae o % = Zz & i © os 2 course of the judg:
oe "recorded by the trial Po.
tah the party who secures the decision by fraud, cannot be owed to enjoy its fruits. Attention of the Court Was invited to the relevant averments made in the plaint at. para-7.
17. As far ae the writ pro ndings and the writ. appeal, filed by some of the tenants are concertied, submission & 1 came to be . withdrawn made is that the writ apy following the compror e arrived at t hotween the | € init was ed on the Mol. © por the Mel, the p to provide separate premises to each' one of the tenants by construc sting ite 2 TLSer building . it was mi the com of auch a compres e which Was mentioned in the the weit appeal came to be withdrawn t herefore, not much can be read into the writ appeal ok ge. 1 | all t be trial court do not conszide e decisions cited on princi ples of lave 4 'and pb en note of except
--_ Shaking a 'passing reference to the decisions in the Therefore, as they are contr ary & 3h footer EE AIT TMA EN ALIA PIM URE Ok KARNATAKA Mie RP FRM Sea & taken by some of the ten : Leaimed Counsel therefore argued that the appell oe "never claimed that they are the owne go o% evidence on record as well as the law bearing on the point. The suit of the plaintiff ought to have been iased by the trial court in the light of the facts ain d to above and as stich, the. - w z aaide thie. duc dgment of the arricdl "Counsel g Sri.G.S.Kannur for the respondent 1 cferting to the facta stances and the. conduct of the defendants in particular, arpiied that. the a) ants » herein have ne m up tes stan! at - ety point tof ti time that they are the owners of the 'veapective S shop premises, but the consisterit Stars of the appellants ig that they were the a anit snd 3 after the sale re executed in favour of the iff, the appellants contirmed to be the recite uindee the plaintiff. In this regard, the stand nts in W.P.No.12450/04 was a referred to, as well as the memo filed in the writ appeal. 5 ey oly a 8 tong ee oe a shop premises and that they had perfected the title by a 4 ' at age goer Bre ee Se AE™DOR 4 "nema ENE SEEMERT MAE CARINMIARA THU GUOUKT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH Fee 3 oe ee 3 _ hist x ed < va ee Abe © oe ot t i & .
BS RCE GP BLAU A PA .
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view of the admission made by the defendants thernselves.
iS. Yet another submission coreerns the Mol enter said MoU which are > (pioduced and. arked as Ex.D2 before the trial coi urt, it is is argued that min the Mol] also, the Association rlsmely Mohan ing Tenanta Association, bee "redtes rated that the @pective persone iti occupation of the" "ehop premises nt are tenants and there 'would, be separate agre which would be "entered nto between each of the abs This Mo ey. "iB ated 20 105.2006 and as such, it te is not open to the' app taints to contend tha not the. tenants un der the res pondent-plaintiff. The very @ ot of th appellants im seeking to amend the written atate trent anid the stand taken in the amended written % : 20. It is therefore submitted that, all theese factors taken note of by the learned trial Judge to hold OP RAR MATA O i COURT om *% OURT OF KARNATAKA HIG! % 8 ine ¢ \ these suits, is submitted = age 'eee 2 < x oy a, ee wa = = tine Pea < a Sg Z Z be ws we Bo * arise. and this « that there existe landloerd-t:
As far as the « i mi the pk 8 concerned, though that there is\ no. jural ~ relationship between the plaintiff and. the 'defe | adenta, one etray sernterice in the course of "the evidence oil Lot t take away the effect of the admission made oy the defendants themely Ahierefore, "the arg addreased by the appellant ta' Counsel 'his regard that ty admission made before the the plaintift is oer ry a made reference to cific: performance "Sut filed by some of the tenanta anc eferring te. the atend teken in the nleint in ORE EE IDS Ee GRE FE SEE. :
at, if the appellants « is. that they are not the tenants and that they have ome owners of the respective shop premises, the eed for Bling the suit for apecific performance doea not a lante all oO goes to ehow that the apy : through have accepted their status as tenants under the "plaintiff and therefore, the findings recorded by the trial set x % & Wr TMARIMALANR US Pilgm Lue | Ue s she asta» were in arrears of rent and did not n SE TINELT Woh E 5 court in regard to the relationship of landlerd-tenant l arned : Ce nine! :
21. As far as the rent is « for the espondent referred to the stand takei in 1 the -
t and submitted that, t ket rent is Re.7,300/- per month he rez at th nat was by the appellants to the 'vendor of the BE plaintiif was hardly Rs. 120)- pera "month and tl the trial court while -not accepting, "the ple contention cegnrd ag 4 "reapective rent, "altimat tely a the rent at Fe.ous- : fe orn 'the date of purchase by tiff le the date of "tertnination of tenancy ifter, the rent wis fixed | at Re.500/- per month tll fotew s argued t "any payment of rent even to the vendor of the plaintiff after the termination of notice issued to them. Under ae these circumatances, the judgment of the trial court ~ calle for no unterfer Learned Coursel for the HGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH -
"
DOIN AYE OIG Se eee or fad Bol TE IE RSA, fee respondent placed reliance on the following decisions to support his contentions ILR 2004 KAR 4782, ILR 1994 KAR 2264, JLR'. 2009 KAR 2142 & ILR 1989}
22. Further, it m the specific angiirient cof. Sri, :
G.S.] it, even in the sale dsed ExPS, it has ots were all early mentioned that 'the te relationship continiied to: iat t be tween the plaintiff :
the ap llants: heseix san, AB: such, , the decisions 1 referred by him would als goes 9) > confirm the said position in lave as well. -
ert of SriG.S.Kanmir ie also MegPad-® The: aforesaid a supple shted. by "SrLK.T Anand who also relied on the Court reported in AIR 1987 SC decision ¢ of: the 'Apex ne 1947 to coritend that the suit for ejectment is altogether ~ dif iiSferent from the suit fled by some of the tenants for et pecifi © performance. It ia his further submission that a £.¢¢ 42 a - 4. Is Bas om ae ee. © 1a the MoU entered into between the Mohan Buildings be.
oi ge & aH COURT OF KARNATAKA HIGH COUR oo B ¥ s shee, ¥ wah eee hon Rh AIK, FI A the trial court waa justified in decreeiry HPS ETT ee GPA IN, PE Association and the plaintiff has nothing to do with the suit for ejectment filed by the plaintiff and more over, Mol itself makes it clear that some more acts will bai ve to be performed :
1 and that apart, _ the Association did appeal, all the tenants had joined aside" end "writ ii the. tenania but befor re thus Court i iu nthe writ, of 2 2al was dismissed based, in ihe. memo filed.
such, reliance is placed on the Apex Court's decision reported in 1970-8C SC 5 50¢ ' to sen ttt right the plaintiff claita uiider thie Mo is a matter which has to be dealt with separately and 'that cannot have any fect on the suit ior ejechment "Hie eet intift, a "24, ti 8 OF thitse gubmussions, learned Counsel for the al of the appeal rosipeiiden it scught for dis:
mes {. In the light of the contentions put forward and the ° dec: isions cited, the point for consideration is, whether % ae Be ee
- Trust: Phersafter, plaintiT on the basis of the findings recorded by it in both sules, as thie would "ow dowh the srea-.of. controversy and would facilitate. focussing only on those aspects of the matter, t attention.
a7.
appellants. with other tetants in all 43 were having distinct shop prea compl own as Moher Buildings situated at OTC Road, Chickpet, Borgalore. ~ They were the over the said complex and subsequent thereto, the ent conducted the public auction on a 08.03.2004 and the present plaintiff purchased the entire complex under the sale deed dated 09.02.2005 _(Ex.P5). The Government of India issued a notice dated "12.03.1991 to the tenants in occupation of the premises & TVR E VP VARINA LAIA Pil PgR BS, FR CBA So, BEF 4g and the tenants questi the plaintiff purchased the entire complex. The tenants fled a writ petition before this Court. in W.P.No.12450/04 challer the public auction and."
the said writ petition was dismissed. on. 02. 09.2008. | tenants Bled 1 the said' Ww rit appeal came to be sed as withdrawn, base on 'the metho' de 18.05.2006 filled before ¢ the writ aE the following 0} observa ) at pora-2; Be
2. A remo. 'dated '18. 05.2006 duly signed by the. ap ppellants-t tenants, Respondent No.3-awner and. theit respective advocates fied stating "the #4 reeponderit-owner to ns mateae a bui oe PePey. in.question and sell the same in favour of "the appellanta-tenants. Therefore, the parties have entered into agreements a settled the matter between them out of . Ceurt. Hence, they s permission of the Court to withdraw the apy a file a freeh appeal in case | a oO QURT OF KARNATAKA HIGH ean COURT OF KARNATAKA H 4 Tr MARPOA LARA FIMGH CUUKT OF KARNATAKA HIGH
-cominercial cotnplex in favour of the plainti? cannot vendor. All the decisions referred by him are in re 4a Riu at sufferance as the appellants contin 18 to stay put on the premises in question everi after the notice isstxe i to > Income Tax' Depart -ennien at, - Therefore, onl = nna © efflux uf time of vaore t than 16 years, essory title failure on the of the thoome "Ta ax: on ent to take any action to cover poscessiori wititiri 12 years. As such, the « Tax Department could not have sold the present plair rent itself had no better title, the and as the Depart at of its five the title better than t ard » to the aforesaid contentions. _ oO <t ed <f bw <{ Zn < om © & > em, Le a2 "sce OR BPH K oe "stand that. they had become the owners of the resp EEE R eM MMB LR PHL UUM Or RARNATAKA
30. The undisputed fact is that the Department sold the complex to the plai atiff in the public auction wl the bid of the plaintiff wae accepted and the sale deed was executed in favour of the plaintiff as | ver Ex.PS, = a2 ro in question preferred a writ petition befor "via Court 1 the auction itself. Thereafter, follow: ing 'the Benth eal of the writ petition, the: tenant & preferred Ul, which came to be dinsissed a6. wit tioned earlier, lf aut ; all. the 'appellants claim that they had acquired title. over th S 'ab ep premises by v and of they oy holding the Ps emises for more than 12 yeare had COLNE - the 'ownere. "by: adverse possession, the exit in favour of the the writ appeal filed before this « Court, the appellants did not t up any 8 "shop premises. Though the writ appeal was dismissed Ed when ® capable ¢ of facts as well as the conduct of the appell 2 _ they are the tenants appellants did not take up any stand with regard to they being the owners of the respective shop premises.
31. Even in the amended emer fled By: . the appellants, the appellants would only fee ons. on, the MoU entered into between the parties during May a 106. :
Thus, the conduct of the appellants goes, to: she aw 'that though they claimed to in possession of the shop sea for more than. 216 ye ATS, they never staked the OWrErs of the shop p orem the sale deed. execi 'ited. inn lavous « of the plaintiff as far back in the year 2005, which i 18 "produced at Ex.PS aleo has not: besa "questioned by 'the appellants in any 7 Jn other: words, the only inference that ie drawn from the aforesaid admitted ite iz that, the apyellants admit t that they were the tenants earlie x the plaintiff, and no o a cosichuaion can be drawn from the aforesaid admitted a fact ts as well as the stand taken by the appellants in ae & "their pleadings as well as in the evidence before the trial ea _ ae epee on < * ah = z oe & Rf Cao € URT we } ou ref sy .
WARNATAIA HC é Re Vr KARMALAIOL HIGH COURT od LAINE ee RO, SEE SEE PAL EES CMG HF M8 8 HS Sele FB age Spl @uit for specific performance 2B & finding to the effect relatior the parties and the trial court also took.-ne ate of. the - al decisions im this d. Evers. in the sale deed:
Ex.P5, it has been clearly men. tioned that though 'the purchaser ie., the plaintiff herein acknowledges having taken actual poss ssion of schedule property, the purchaser is entitled to direct all 'the tenants to attorn A to regulate all all the tenancy affs Exports Limited. erefore, when the 8p pellants and. other tenants failed to challenge the auct tion: in. favour of the plaintiff and the writ § re tition was: dismissed and writ appeal was also "withdrawn by. ; them, though on the basis of the MoU entersa ints between the parties, all through the and by their conduct also . oontirmed that they continued to be the tenants.
33. The very fact that some of the tenants even filed a ARNATAIA HIGH -
x aU Ae TEM GWE WP RANKIN ALAILA Kile Cf A AS @ Nos HHUA BAL NE gosh, _the other hand, qu restioned the very auction itself as : : project 'themsel *. referred to by the learned Counsel Sri.Paras Jain for goes to indicate that the tenants who had approached oem the trial court in the eaid euit for specific perfor also did not dispute the fact of they being the te nants oS under the plaintiff. Though in the instant "ap before this Court, the appellants cotitend that they had l any suit for epecific performance, the fling of suit for specific mance by some of the tenarite has not been denied by the present appellants.
34. Ureer the . ° aforesaid." ome mistances, if appellants by. their "own, "sonduet accept implicitly the exe ution of aole deed ae. (per Ex.P5 in favour of the inti? by the ix some Ta Department and do not lenge thie said sale deed i in ary proceedings, but on 'also, made ol 'aid to > purchase the commercial complex, all thes would go to show that the appellants did md aleo conducted themselves as a tenants 7 and nothing else. Therefore, the decisions ~.. appellants touching upon the status of tenants as Ta GALI | ¥ ad FOO PA FOO ERR EH age ol PYF bad Ce units at sufferance will not come to the aid of the appellarits in the instant cases before us. Se ¢ under the respondent-plaintiff, the next aspect is aa to >. ing to comply with the require nt: of Section 106 of the Tra wher of Property Act. "The suit. is : appellants, 'The notice that Was one for ejectment of t required to be issued was. iseued | by the Plaintiff and the trial court has alse taker: note of the date of wauance of notice and rece ipt of the same, hy 'the 'appellants and found that the: rea sirement of Section 106 of the T.P.Act "fully complie ed by the-p plaintiff. In fact, even in . F the course of the 'arguments, learned Counsel for the isnts also did not dispute the factum of notice
-- been duly issued to the appellant: and no infirmity in the e notice is also pointed out. As such, the se for ejectment of the i tiff has made out a . appellants from the reapective shop premises.
36. "As far as the o contention put forward ragarding the ge bag oe 7 . sod g 12 "Peete nen | ah ee ete os . JTL ee Tio re Perc, Gf 12 YESre @ oconce TAA, 10 18 B80 & Ge.
bt 8 ' cA, iH COURT OF KARNATA a ea?
a a4 ile tz on) sone settled law as has held by the Apex Court in that number of erely being in possession. for years will not confer title by way of adverse | session unlese the possession is he host : to the . ariseri.
37. C y to the aspect of rent, no doubt, in the plaint it is averred by the, tenents® that the rent waa d that Rs.4,000/- per menth exid at t pera? a pit i avert the de efendanta are Table to pay - damages at Re.7,300/ - per morith. Learned 1 tal. Judge has considered the rent aspect of the matis f aio and has observed at para-39 of Merit thet the rent "that was last paid by the elisnts was is.149y. » per month and nothing in the "evidence to to- show that rent was Ks.7,300/- per month.
38. The premises in question are situated at te, Bangalore, which is almost the heart of the in the commercial area, the rent of the premises would be much higher than what was the rent that wae paid by the appellants earlier at Ke.149/- URI OF KARNATAKA HIGH COURT OF KAR RAR ALARA Filta CO EET AK Dee had oe per month, which amount can be said to be a pittance considering the market rent which is referred to in the plaint by the plaintiff. Notwithstanding the fact that the:
4% sliants continued to Squat on the premises' to use s the expression as put by the learned c Counse el $ri.G.S.Kanmur for the respondent, the 3 appellla: ants. also. admit that they never any renta to the et orésent See plaintif and have enjove ed the" 'paspe nective premises for = : e% % " aay "54 more than a decade witho uit payin 18 whatece : 4 Pe ee ee ee 7
39. Under these. cucumstences, the learned tral month from the date ' af { Pupchase of the complex by the the terminat tion of the (Nancy Leé., OF the Court hes fired the % damages at .Ra.500/- per month onwards 'all handing over vacant possession. The a fixation of 'monthly rent as well as the damages ia also not, very Ingh considerimg the situation of the shop em geese, aru doe amen day #hecn ecient 2d €% a timem (iter tlanée & ' premises in the heart of the Bangalore City that too in JHeri LOUK OF KAKRMATAKA HIGH COURT OF KA Y 4 PSs. Gh "settled law that plead PURSE Set RE A AINA FAG, Sach basse learned Counsel Sri.Paras Jain for the appellants and the reliance placed on the decision in this regard. iz 7 concerned, no doubt, fraud vitiates everything and no person or party can be permitted to securé a. decision ''on-. the basis of fraud. At the ae ne time, it has to be kept in y that in order to establish fraud, the party plead fraud will have to do soniething more than what has been done in the instant cages. In ae much as, the p who wants to bank'on the grourci of fraud will have to a had establish by corteincing evidence that the plamt played fraud on the Court. Merely because certain avermerits pleaded in the plaint is not established, that dees not mean that fraud ia played on the Court. It is a e : without ne ort of SGary SUP] evidence catimot be accepted and vice-versa. Every in the plamt if not proved will not & = . automatically lead to the inference that fraud is played on the Court. It depends upon the facts and substance of each case. In the decision referred to by the learned Courgel for the appellants reported in (2006) 7 Scc a % § AMOUR Oh WOARIN Ka Pike h La BLO INA EA.
4 \ 2Pt VALI A Sud! a quit notice 49 held \ 2 thie Plain ntiff. Only as regards the rent the learned trial a4 416, the Apex Court has even referred to the definition % of fraud' as found m vericus wo and one such definition is referred to at para-23 and which. reada' thue:-
h u.Ward Sirdohn Rolf, Ld. "Fraud must be ac tual poritive firated, a | a litated and intentional con rice to keep e and the < court ie jgnerance of the facts of the case, aac obtaii ring decree by thet contrivance", on
41. Therefore, it clear fromthe aforementioned definition that fraud. must be actual positive fraud and intentional and keeping, the court in ignorance of the real facta and. on thot basis, the decree by contrivance is med. In the: instant case, the foundation for siectment is based on the landlord tenant relationship which 'the appellants as by their conduct and the id and hence no fraud is played by i with the plaintiffs stand that the ~ per month, but on the other hand, NAVAN TIRGPT SS GUKE OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH:
nn involved: This preyer is opposed by the learned moe stibmission |
- aver the prem _any rent nor any tax and therefore the Court may Bagh Radlk took note of the rent that was paid earlier at Re.149/- per month and taking note of the eaid rate of monthly le rent, the t court fixed the monthly rent of Re. 200}- a per month and on that basis had quantified the arres care. . of rent as well as 8 es payable... Therefore, decision referred to by the learned Counse al for the appellants also does not help + te the appellants'. cane." aforementioried ressana, Tao not see any
42. Fort nity m the fi iimgs. recorded J by the 'trial court and on the issues. fr ed by. it 'and BS such, these a are liable to be diorissed:
43. At this stage, learned. Counsel Sri.Paras Jam for ; oy ween" ' sees Tocine 1¢ appellants aubmi mitted that appellants be given leave Court as questions of law are Counsel Sri.G.S. Kenny for the respondent and further de is that the appellants have squatted iod of time without paying RARNATAA KMEGH Wid WIE GP IAS ATA Pht Gk > Gir we & 6 hy 4 4 Zz 2 a % & § PES GR FSH PUGH FUG os Mo " s a ove a me -and therefore, SMe Sat Sa IS,
- accoun <& and the very stand of the appell:
Sou Eh the appellants very limited time to vacate and hand over vacant possession of the respective chop premises. zg thue heard both sides, as far as the reyes 7 € the very admission made by the appellants in their as well ae im the writ pe etition and writ @ AP] proceedings before this Coit crt 5 and 'ther cio ré, no question of law arises as wall as the view: taket, | y this Court is also based on the sett tied. prin acip} les of I iaw laid down by As such, the prayer the Apex C Court in iumher of CASES. for leave ist rejected:. 7 appellants: have Sayed the shop premieee for long years. without paying any rent and even the rent that they were paying earher was hardly Re.149/- per month ng all these circumstances into rT hrot ughout being they are the tenants and nothing "mere, I am of the view that the appellants can be SBIR sae ReneS FENTON WT MARINAMAIMA THOT WWUKE UF KAKNAIAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH | 3?
tiff. In the event of essiod on the. ~