Bangalore District Court
Smt.Rama Nagan vs ) M/S.Brahmhi Welfare Trust ® on 1 August, 2015
IN THE COURT OF IX ADDL.CITY CIVIL AND
SESSIONS JUDGE AT BANGALORE (C.C.H.5)
Dated: This the 1st day of August 2015
Present: Shri Krishnamurthy B.Sangannanavar,
B.Com.LL.B.,(Special)
IX Addl. C.C & S.J, Bangalore.
O.S. NO.7346/2013
Plaintiff: Smt.Rama Nagan, W/o. Venkata
Nagan, Aged about 70 years,
Residing at No.367/71, 19th Main
Road, 1st Block, Rajajinagar,
Bangalore 560 010.
[By Sri.L.Prakasha, advocate]
-Vs-
Defendants: 1) M/s.Brahmhi Welfare Trust ®,
Represented by its Chairman,
Registered office at No.1330, 8th
Main Road, 'A' Block, Rajajinagar
2nd Stage, Bangalore 560 010.
2) The Sub-Registrar, O/o The
Senior Sub-Registrar, Rajajinagar,
Bangalore. No.27/C, 3rd Main
Road, Rajajinagar Industrial
Estate, Bangalore 560 044.
(D1:By Sri.Janardhana.G, advocate
D2: By Government Pleader)
Date of institution of the suit 03.10.2013
Nature of the suit Declaration &
Injunction
2 O.S.No.7346/2013
Date of commencement of 08.01.2014
recording the evidence
Date on which the judgment 01.08.2015
was pronounced
Total duration : Day/s Month/s Year/s
28 09 01
JUDGMENT
This is a suit filed by plaintiff to direct defendant No.1 to perform part of its obligation casts under the terms of lease dated 23.06.1995 by paying the arrears of rent in addition to the fines, penalties and interest, for cancel the registered lease deed dated 23.6.1995 registered in the office of Sub-Registrar, Rajajinagar, Bangalore, to give direction to the defendant No.2 to remove the entries and to declare the said transaction as null and void, not binding on the plaintiff.
2. On facts, case of the plaintiff is pleaded below:
She is the absolute owner of schedule property. This property consisting of ground floor, terrace open space and this terrace open portion 3 O.S.No.7346/2013 was leased to defendant No.1 is the subject matter of the suit. The plaintiff and defendant No.1 entered into a registered lease agreement dated 23.6.1995 and the same came to be registered in the office of Sub-Registrar, Rajajinagar, Bangalore on 26.6.1995. The lease was for a period of 10 years on monthly ground rent of Rs.1000/-
reserving right of lessor to renew the lease after expiry of ten years and the 1st defendant failed to comply with the terms and conditions which are incorporated in the lease deed. 1st defendant failed to pay arrears of rent. She has permitted defendant No.1 to exercise lease hold rights for a period of ten years as agreed and when requested defendant No.1 for cancellation of lease, demanded Rs.1.0 lakh although is liable to cancel the registered lease deed by executing cancellation or revocation of lease deed in the office of Sub-Registrar concerned as such, filed suit seeking direction to defendant No.1 to perform part of its obligation as agreed under lease deed and to execute a cancellation of lease deed dated 26.6.1995 and to give direction to the defendant No.2 to remove the entries in their records in respect of lease dated 4 O.S.No.7346/2013 26.6.1995 entered between plaintiff and defendant No.1.
3. 2nd defendant although represented by learned Government Pleader fails to submit written statement to the case of the plaintiff.
4. On facts, defence put forth by 1st defendant is as follows:
Lease agreement dated 23.6.1995 was entered with plaintiff, since she prevented the 1st defendant from putting up the construction and run the school therein, therefore the question of termination of lease cannot be done unless and until she is permitted to raise construction and run school for a period of ten years from the date of lease. He denies the allegation of plaintiff about demand of Rs.1.0 lakh to execute cancellation deed and submits that when 1st defendant made all arrangements to put up construction, as plaintiff prevented the 1st defendant from doing so resulting thereby suffered loss to the extent of Rs.2,00,000/- to Rs.3,00,000/-. The termination of lease is bad and for the said reason, cancellation of lease is also bad and the suit is liable to be dismissed.5 O.S.No.7346/2013
5. In view of the above prime pleadings, this court formulated the following issues for the purpose of trial:
(1) Whether plaintiff proves that lease deed dated 23.6.1995 for further period is terminated and canceled on the midnight of 22.6.2005?
(2) Does she prove that on several occasions she approached and requested defendant No.1 to execute the terms of the lease deed and to pay the rent due to her?
(3) Does she prove that the 1st defendant went on postponing on one or the other reasons till expiry of period of lease deed?
(4) Does she prove that the 1st defendant has no manner of leasehold right or any other rights in the suit schedule property?
(5) Does she prove the lease deed registered on 26.6.1995 in the office of Sub-Registrar, Rajajinagar, as null and void and not binding on her?
(6) Does she entitle for the relief sought for?
(7) What order and decree?6 O.S.No.7346/2013
6. In support of the above issues, plaintiff examined herself as P.W.1 and through her, Exs. P-1 to P-18 documents got marked. On the contrary, 1st defendant examined one witness as D.W.1 and through him, Exs.D-1 & 2 got marked.
7. After closure of evidence on either side, having heard the learned counsels on record, this court would prefer to record the following findings on the above issues:
Issue No.1 : In the Affirmative
Issue Nos.2 to 5 : Do not survive for
consideration as they
would become redundant.
Issue No.6 : Partly in the Affirmative
Issue No.7 : As per final order,
for the following:
REASONS
8. Issue No.1: The plaintiff in the suit is Smt. Rama Nagan and she is examined herself as P.W.1 in support of her case. It is found in her evidence that her mother offered terrace of their building is subject matter of the present suit on lease to 1st defendant and as per terms and conditions on 23.6.1995, a lease deed came to be entered 7 O.S.No.7346/2013 between herself and 1st defendant. In fact, the 1st defendant did not dispute as to this lease deed entered between mother of plaintiff and defendant No.1 as per Ex.P-18 on 23.6.1995 wherein Smt. Ammannamma, mother of plaintiff herein and M/s.Brahmhi Welfare Trust entered into a registered lease deed. In so far as ownership of plaintiff is concerned is not disputed by defendant No.1. It is therefore, not necessary to examine title of plaintiff, since she has produced Will executed by her mother Smt.Ammannamma, in her favour in respect of the entire property. She has produced uttara patra, encumbrance certificate, khata certificate, khata extract, absolute sale deed executed by BDA dated 05.02.1981 in favour of her mother, tax paid receipt, acknowledgement available as per Ex.P-1 to P-10. Of these documents received in evidence for our purpose to decide the fact in issue, Ex.P-18 lease deed and notice dated 08.11.2012 as per Ex.P-11, coupled with evidence of P.W.1 and D.W.1 would sufficient that they entered in to the lease deed and the said lease came to be expired by time without holding over by the defendants herein.
8 O.S.No.7346/20139. If we examine Ex.P-18 registered lease deed dated 23.6.1995 wherein mother of plaintiff was arrayed as lessor and the 1st defendant a lessee and the terrace portion, which being the schedule property under suit and schedule under lease deed was leased to defendant No.1 for a period of 10 years on monthly rent of Rs.1,000/- commencing from 1.7.1995 and it was agreed by them that monthly rent of Rs.1,000/- would include rent both for the terrace and the structure to be built on it by the lessee. The new construction to be put up on the terrace immediately after construction work is completed at its cost. A lessee would construct a sump in the open space available in the ground floor of the schedule property, to install a pump to lift water to the 2nd floor of the building and then, lay water pipes afresh so that the entire building will have water from the overhead water tank. Further, they also agreed that lessee will at the expiration of the said term of 10 years quietly surrender and deliver up to the lessors the said terrace portion of the schedule property together with which shall have been constructed thereon during the said term in good condition subject to normal wear and tear.
9 O.S.No.7346/2013Further, they also agreed that lease on new terms and conditions to be decided at that time and the lessors to renew the lease after the expiry of the present lease period. The terrace portion of the schedule property is valued for the purpose of stamp duty at Rs.12,000/-. It is to be noted here that these terms and conditions agreed between these parties are not at all disputed by plaintiff and defendant No.1.
10. In the above such circumstances, it would be proper for the court to examine evidence of P.W.1 - Smt.Rama Nagan who admits in cross- examination that as agreed under lease deed, defendant No.1 could not be able to put up construction. She admits that in order to put up construction, owner has to obtain a license from authority concerned and she admits that even in terrace portion, they are in possession, would be sufficient to hold that the lease never come in to effect. Further, coupled with period of lease under Ex.P-18 was commenced w.e.f. 23.6.1995 and the lease agreement came to be terminated automatically without there being any acting upon between parties in the matter of leased property. It 10 O.S.No.7346/2013 is also found in the evidence of D.W.1 that the terms and conditions under Ex.P-18 been never acted upon. D.W.1 has deposed categorically that plaintiff fails to permit the 1st defendant to put up construction and failed to renew the lease after 23.6.2005 is sufficient to hold that lease came to be end or terminated by their actions since both failed to comply with terms and conditions of Ex. P-18. Under such circumstances, since plaintiff herein in order to remove the entry in the records of defendant No.2 thought of to sue defendant No.1 in the present form which in fact is not necessary as Ex.P-18 been never acted upon between plaintiff and defendant No.1 and the plaintiff is in possession of lease property during the lease period and the parties failed to renew Ex. P-18 after 23.6.1995.
11. In the above such circumstances, Ex.P-11 notice caused prior to this suit would be held legal and valid for the purpose of terminating tenancy entered between plaintiff and defendant. Thus, with such findings, in the opinion of this court it is not necessary to execute a cancellation deed in the office of defendant No.2, for removal of entry in 11 O.S.No.7346/2013 encumbrance certificate register maintained by defendant No.2. In other words to say that it goes without saying that the lease entered between plaintiff and defendant No.1 came to be terminated by lapse of time. In this view of the matter, since parties to the suit have admitted lease Ex.P-18 and its terms and conditions agreed by mother of plaintiff. Further, during continuation of the lease, defendant No.1 was admittedly prevented by the plaintiff to put up construction on the terrace portion which would be the suit property in the present suit. As stated above, the lease deed entered by efflux of the time is determined and the fact remain established that the plaintiff is in possession of schedule property and even during continuation of the lease she prevented the 1st defendant to proceeded and after expiry of the lease term, he has not holding over the said property, as such viewed from any angle, it cannot be said that the lease is still subsist in respect of the suit property. It is to be noted here that the rights and liabilities of plaintiff and 1st defendant would be governed by provisions of S.105 to 117 of the T.P.Act, as such question of execution of cancellation of lease deed by 1st defendant in the 12 O.S.No.7346/2013 office of the 2nd defendant would not be required. In other words to say that only for removal of entry in the registers of sub-registrar yet, another registered deed would not be required.
12. In the above such circumstances, plaintiff has to be held terminated the lease in between mother of plaintiff and 1st defendant in respect of schedule property dated 23.6.1995, not only by efflux of lease period but also as per notice caused prior to institution of the suit stated supra w.e.f. 22.6.2005. Thus, reaching to such conclusion, finding on issue No.1 would be record in the Affirmative.
13. Issue Nos.2 to 5: In view of the finding on issue No.1 in favour of plaintiff in respect of suit schedule property, for the reasons recorded by the Court, in the opinion of this court on issues 2 to 5, finding would be do not arise for consideration, as they became redundant. Accordingly, recorded findings on all these issues.
14. Issue No.6: In view of the above findings, plaintiff in the suit would be held that she is 13 O.S.No.7346/2013 entitled for relief in part against defendant No.2 for removal of entry made in respect of registered lease deed dated 23.6.1995 and she can do it on her own by producing the copy of the decree, which would be drawn in the case. Further, this court is of the considered opinion that the plaintiff is not entitled for any other reliefs sought in the suit. Accordingly, finding on this issue would be record partly in the Affirmative.
15. Issue No.7: In view of the above findings and in the result, this court passes the following:
O R D E R
(a) The suit of the plaintiff is hereby decreed in part.
(b) Consequently, ordered that, the plaintiff is entitled to get remove the entries in the office of 2nd defendant by furnishing copy of the decree in respect of registered lease deed dated 26.6.1995 by payment of required fee to that effect.
(c) The suit in so far as other reliefs sought by plaintiff are hereby dismissed with no order as to cost.14 O.S.No.7346/2013
(d) Draw a decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in the open court, on this the 1st day of August 2015).
(Krishnamurthy B.Sangannanavar) IX Addl. City Civil & Sessions Judge, Bangalore.
A N N E X U R E List of witnesses examined for plaintiff:
P.W.1 Smt.Rama Nagan List of witnesses examined for defendants:
D.W.1 T.L.Chandrashekaraiah List of documents exhibited for plaintiff:
Ex.P-1 Original endorsement dt.10.3.1959 Ex.P-2 Zahir notice Form No.21 Ex.P-3 Original Will dt.2.10.1969 Ex.P-4 Uttara patra dt.28.1.2006 Ex.P-5 Encumbrance certificate Form-16 Ex.P-6 Encumbrance certificate Form-15 15 O.S.No.7346/2013 Ex.P-7 Khata certificate & extract Ex.P-8 Absolute Sale deed Ex.P-9 Acknowledgement Ex.P-10 Tax paid receipt Ex.P-11 Copy of legal notice dated 8.11.2012 Ex.P-12 Postal receipt Ex.P-13 Letter dated 28.12.2012 by plaintiff Ex.P-14 Letter dt.17.1.2013 by Sub-Registrar, Rajajinagar Ex.P-15 Legal notice dated 6.3.2013 Ex.P-16 Postal receipt Ex.P-17 Letter dt.28.3.2013 by Sub-Registrar, Rajajinagar Ex.P-18 Copy of Lease deed dt.23.6.1995 List of documents exhibited for defendants:
Ex.D-1 Reply notice dt.30.11.2012 Ex.D-1(a) Postal receipt Ex.D-2 Resolution IX Addl. City Civil & Sessions Judge, Bangalore.