Bangalore District Court
O.S./8373/2018 on 29 November, 2021
/1/ O.S.No.8373/2018
THE COURT OF XXXIX ADDITIONAL CITY CIVIL JUDGE,
[CCH-40], BANGALORE CITY.
Dated on this the 29th day of November, 2021.
-: Present :-
Sri. Kadarsab, B.A., LL.M.,
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
ORIGINAL SUIT NO.8373/2018
PLAINTIFFS :
1. Dr.N.G.Anand S/o. Late N.Gundappa,
55 Years, represented by his GPA
holder N.G.Krishnamurthy.
2. N.G.Krishnamurthy
S/o. Late N.Gundappa, 47 Years,
No.204, 2nd Floor, Habitat Mayflower
Apartments, 36/A, 1st Main Road,
S.T.Bed Layout, Koramangala,
Bengaluru - 34.
[By Sri.G.Narendra Raju, Advocate]
/ VERSUS /
DEFENDANT :
Prasad Kasthala S/o. Guruvaiah, 50
Years, R/o.No.7, Sri Sai Ashirwad
/2/ O.S.No.8373/2018
Residency Apartment, 1st Cross,
Muneshwara Nagara, Old
Mangammana Palya, Bommanahalli,
Hosur Road, Bengaluru - 68.
And also at No.3 (Old No.418/3),
Green Leaf Extension, Off : 80 Feet
Peripheral Road, Near Blue Dart
Courier Office, 4th Block,
Koramangala, Bengaluru - 34.
[By Sri.Vellanki Ravi, Advocate]
***
Date of institution of the suit : 22.11.2018
Nature of suit : Suit for ejectment
Date of commencement of : 23.09.2019
evidence
Date on which the Judgment : 29.11.2021
is pronounced
Duration taken for disposal Year/s Month/s Day/s
03 00 07
***
JUDGMENT
The plaintiffs have filed the present suit against the defendant for the relief of possession and also for recovery of arrears of rent of Rs.7,66,400/- and for /3/ O.S.No.8373/2018 damages at the rate of Rs.50,000/- p.m. from the date of suit till date of delivery of vacant possession of the suit schedule property.
2. The case of the plaintiffs in brief is as under :
It is the case of the plaintiffs that, one Vijayalaxmi was the absolute owner in possession of property bearing Old No.418/3, New No.3, PID No.68-55- 3, situated at Green Leaf Extension, 1 st Cross, Ejipura, (Old House List No.418/3, 418/4, Khatha No.333/2), Koramangala, Bengaluru - 34. The said Vijayalaxmi has sold the entire property to the plaintiffs for a valid consideration. Accordingly, she had executed sale deed on 26.9.2018 in favour of plaintiffs.
3. It is further averred that, the defendant had been inducted as a tenant by the previous owner Smt.Vijayalaxmi on a monthly rent of Rs.30,800/-
/4/ O.S.No.8373/2018 exclusive of water and electricity charges. The defendant has paid a sum of Rs.2 Lakh by way of interest free refundable security deposit to the previous owner. The defendant is a chronic defaulter in payment of rent. Since January 2016 the defendant has not paid the rent. The defendant is in due of 33 months rent i.e., Rs.10,16,400/- in which Rs. 2,50,000/- has been deducted i.e., the security deposit amount. At present defendant is in due of Rs.7,66,400/- towards arrears of rent. After purchasing the suit schedule property, the plaintiffs have demanded the rent to the defendant, but defendant has not paid the rent. Therefore, legal notice dated 10.10.2018 had been issued to the defendant. Thereby defendant has been called upon to vacate the suit schedule premises and to pay arrears of rent. Defendant has received the said notice, but has not delivered the suit schedule property and even has not paid the rent. The tenancy of defendant /5/ O.S.No.8373/2018 has been terminated in accordance with law. The defendant is in unauthorised occupation. Hence, prayed for decreeing the suit.
4. Upon service of suit summons, the defendant appeared through his counsel and filed written statement. The defendant contended that the suit of the plaintiffs is not maintainable. The defendant admitted the ownership of Vijayalaxmi and also admitted that he is in occupation of suit schedule property. He further admitted that the monthly rent is of Rs.30,800/-. The defendant has contended that plaintiffs have no right to file the present suit and he is not having knowledge about the sale deed dated 26.9.2018. There is no attornment of tenancy. Hence, the plaintiffs cannot file the present suit. Vijayalaxmi has executed rent agreement dated 2.1.2016. As per said rent agreement, /6/ O.S.No.8373/2018 the period is of 10 years. The period is not yet completed. Hence, the suit of the plaintiffs is not maintainable. Defendant further contended that earlier there was illegal interference from Smt. Vijayalaxmi, therefore, he had filed O.S.No.25753/2017 on the file of City Civil Judge, Mayo Hall, Bengaluru for the relief of permanent injunction against the said Vijayalaxmi and others. In the said case ad-interim temporary injunction has been granted by the Hon'ble Court. The defendant is in lawful possession and enjoyment over the suit schedule property. The defendant is running paying guest accommodation in the suit schedule property and he has invested more than Rs.60 Lakh for fixtures and fittings. The defendant has agreed to vacate the premises subject to payment of said Rs.60 Lakh. The said Vijayalaxmi has agreed for the same. Plaintiffs knowing the said state of affairs looks like have negotiated and acquired the suit /7/ O.S.No.8373/2018 schedule property for a throw away price without prior intimation by plaintiffs or from Vijayalaxmi to the defendant. The defendant came to know about the alleged sale deed only after receipt of legal notice. The defendant has paid update rent to Vijayalaxmi. Hence, plaintiffs cannot file the suit for recovery of rent. The plaintiffs are not entitled for any relief. Hence, prayed for dismissal of suit.
5. On the basis of pleadings and documents produced by both the parties following issues have been framed :
1) Whether the plaintiffs prove that they are owners of suit schedule property ?
2) Whether the plaintiffs prove that the defendant is in due of Rs.7,66,400/-
towards arrears of rent ?
3) Whether plaintiffs are entitled to the relief of possession as prayed for ?
/8/ O.S.No.8373/2018
4) Whether the plaintiffs are entitled to the
mesne profits as prayed for ?
5) What order or decree?
Additional Issue framed on 19.11.2021 :
Whether the plaintiffs prove that tenancy of defendant has been validly terminated ?
10. In order to substantiate plaintiffs' claim, plaintiff No.2 has been examined as P.W.1 and got marked documents at Exs.P.1 to P.4. In order to establish his defence, defendant examined himself as D.W.1 and got marked the documents Exs.D.1 to D.11.
11. Heard the arguments of both sides.
12. My findings on the above issues are as follows:
Issue No.1 : In the affirmative.
Issue No.2 : In the negative.
Issue No.3 : In the affirmative.
Issue No.4 : Partly in the affirmative.
/9/ O.S.No.8373/2018
Additional Issue
dated 19.11.2021 : In the affirmative.
Issue No.5 : As per final order, for
the following:
REASONS
13. Issue No.1 :- Plaintiffs have filed the present suit for ejectment and possession of the suit schedule property, for recovery of arrears of rent of Rs.7,66,400/-
along with damages for occupation of suit schedule premises after termination of tenancy.
14. To prove plaintiffs' case, plaintiff No.2 has been examined as P.W.1 and got marked the documents Exs.P.1 to P.4. The examination-in-chief of P.W.1 is nothing but replica of his plaint averments. P.W.1 deposed that, plaintiff No.1 is his brother and has executed GPA as per Ex.P.1. One Vijayalaxmi was the absolute owner of property bearing Old No.418/3, New No.3, PID No.68-55-3 situated at Green Leaf Extension, / 10 / O.S.No.8373/2018 1st Cross, Ejipura, 4th Cross, Koramangala, Bengaluru - 34, consisting of ground, first, second and third floor residential building measuring East - West 40 North - South 60 Feet. The said Vijayalaxmi has sold the suit schedule property. Himself and plaintiff No.1 have jointly purchased the suit schedule property for a valid consideration. Accordingly, said Vijayalaxmi has executed registered sale deed in respect of suit schedule property on 26.9.2018 as per Ex.P.2. As per sale deed, their names have been mutated in the records. Defendant had been inducted as tenant by previous owner Vijayalaxmi. The defendant has paid Rs.2 Lakh by way interest free refundable security deposit to the previous land owner. The rent for the schedule premises payable by the defendant is Rs.30,800/- p.m exclusive of water and electricity charges. The defendant is a chronic defaulter in payment of rent. The defendant is in due of / 11 / O.S.No.8373/2018 rent for a period of 33 months i.e., Rs.10,16,400/-. The defendant has paid a sum of Rs.2,50,000/- to the account of previous land lady i.e., Vijayalaxmi towards arrears of rent. The defendant is in due of Rs.7,66,400/-. P.W.1 further deposed that after purchasing the property, they have made request to the defendant for payment of rent and also for vacating the suit schedule premises. The defendant has failed to do so. Therefore, legal notice dated 10.10.2018 has been issued as per Ex.P.3. Said notice has been duly served upon the defendant. After receipt of said notice defendant has issued untenable reply dated 16.11.2018 as per Ex.P.4. The tenancy of the defendant has been validly terminated. The defendant is in unauthorised occupation. Hence, prayed for decreeing the suit.
15. The counsel for defendant cross-examined P.W.1 and made a suggestion that the defendant has / 12 / O.S.No.8373/2018 paid Rs.2 Lakh on 2.1.2016 to Vijayalaxmi towards security deposit and also paid Rs.30,800/- rent per month. Witness admitted the said suggestion. The counsel for defendant further made a suggestion that defendant has paid more than Rs.60 Lakhs for fittings and fixtures. Witness denied the said suggestion. Though the counsel for defendant cross-examined P.W.1 in length, but has not denied Ex.P.2 sale deed dated 26.9.2018 executed by Vijayalaxmi in favour of plaintiffs in respect of suit schedule property. On perusal of Ex.P.2 sale deed dated 26.9.2018 it reveals that plaintiffs have purchased the suit schedule property from its erstwhile owner Vijayalaxmi for a valuable sale consideration. Besides, it is well settled law that the author of the document can only deny. The defendant is neither author of the document or signatory of the said sale deed. Hence, he cannot deny the said sale deed.
/ 13 / O.S.No.8373/2018
16. In order to establish his defence, defendant himself examined as D.W.1 and got marked the documents Exs.D.1 to D.11. The examination-in-chief of D.W.1 is nothing but replica of his written statement averments. D.W.1 deposed that one Vijayalaxmi was the absolute owner of suit schedule property and she has let out the suit schedule premises on a monthly rent of Rs.30,800/-. Accordingly, she has executed rental agreement on 2.1.2016 for a period of 10 years. He has paid Rs.2 Lakh by way of interest free refundable security deposit to said Vijayalaxmi. He has paid update rent to said Vijayalaxmi. And he has invested Rs.60 Lakh for the interiors, decorations, fittings and furnitures. Exs.D.1 to 4 are the Receipts for having fixed the said furnitures and fittings. Ex.D.5 are the photographs in respect of suit schedule property. Ex.D.6 is the C.D. in respect of Ex.D.5. said Vijayalaxmi obstructed for his / 14 / O.S.No.8373/2018 peaceful possession and enjoyment over the suit schedule property, therefore, he has filed a police complaint on 6.3.2017. Accordingly, the Koramangala Police have issued Acknowledgement as per Ex.D.8. The said Vijayalaxmi had issued notice 28.3.2017 for termination of tenancy as per Ex.D.9. He has issued reply as per Ex.D.10. He has paid electricity and water charges to the concerned department as per Ex.D.11 - Electricity Bill. He has no knowledge about the purchase made by plaintiffs. Plaintiffs have no right to filed the suit. The said Vijayalaxmi had agreed for deduction of the rent in respect of said Rs.60 Lakhs. There is no attornment of tenancy. Hence, prayed for dismissal of suit.
17. Though defendant denied the plaintiffs' sale deed, but in his cross-examination at page No.12 clearly / 15 / O.S.No.8373/2018 admitted that, the plaintiffs have issued notice as per Ex.P.3 and have intimated regarding Ex.P.2 - Sale Deed. The evidence of D.W.1 clearly goes to show that after purchasing the suit schedule property, the plaintiffs have intimated the defendant regarding Ex.P.2 - sale deed.
18. Though D.W.1 in his examination-in-chief deposed that he has invested Rs. 60 Lakh for the interiors, decorations, fittings and furnitures, Exs.D.1 to D.4 are the receipts for having invested the said amount, but in his cross-examination at page No.13 clearly deposed that, Exs.D.1 to D.4 documents pertains to Anusha Family Restaurant. He further deposed that Anusha Family Restaurant is situated in the ground floor of the suit schedule property and he is not the tenant of ground floor. Besides, there is no agreement between defendant and Vijayalaxmi regarding the payment of / 16 / O.S.No.8373/2018 said Rs.60 Lakh. D.W.1 unequivocally admitted that Exs.D.1 to 4 are not pertains to suit schedule property. Except the oral testimony of D.W.1 there is no evidence on record to show that defendant has invested Rs.60 Lakh for the interior, decorations, fittings and furnitures. On perusal of entire evidence of D.W.1 it reveals that defendant is making false claim only with an intention to harass the plaintiffs.
19. On perusal of Ex.P.2 - Sale Deed it reveals that plaintiffs have purchased suit schedule property from its erstwhile owner. Ex.P.2 is registered O.C. it has got presumptive value. When the right, title and interest of immovable property stand transferred by operation of law, the spirit behind Section 109 of Transfer of Property Act perforce would apply and the successor-interest would be entitled to the rights of the predecessor. Attornment / 17 / O.S.No.8373/2018 of tenancy in favour of purchaser is automatic. Whether the jural relationship of landlord and tenant between plaintiff and defendant, attornment by tenant is not necessary.
20. The present suit is filed by the plaintiffs for ejectment and possession of suit schedule property along with damages for occupation of suit schedule premises after termination of tenancy. So as to prove their case, the plaintiffs have to prove that, they are the absolute owners of the suit schedule premises . In order to prove their title to the suit schedule property, the plaintiff No.1 has got examined himself as PW-1, reiterating contents of the plaint. The plaintiffs have produced 04 documents. I have perused the Ex.P.3 - Legal Notice, wherein it is specifically contended that, the plaintiffs are the owners of the suit schedule / 18 / O.S.No.8373/2018 property and same is not denied by the defendant. The defendant in his written statement has admitted that, he came to know about the sale deed - Ex.P.2 on receipt of Ex.P.3 - Notice. The admission of the defendant in the written statement and oral evidence clearly establishes that, the plaintiffs are the owners of suit schedule property. Looking into Ex.P.2 and oral evidence placed on record, I am of the opinion that, the plaintiffs are the owners of suit schedule property.
21. Though defendant denied the sale deed Ex.P.2, but has not produced any material to substantiate the same, as such there is nothing on record to disbelieve the version of plaintiffs. It is pertinent to note that, the plaintiffs by producing cogent and documentary evidence have proved Ex.P.2 contents. The defendant in this case, has not produced either oral or documentary / 19 / O.S.No.8373/2018 evidence to disprove Ex.P.2. It is worthwhile to mention that, as per Section 92 of Indian Evidence Act, no amount of oral evidence is admitted so as to contradict documentary evidence. In a decision reported in ILR 2020 KAR 3667 [Smt. Sarvamangalamma and others Vs., Smt. Anusuya Bai and others], wherein the Hon'ble High Court of Karnataka held that, "Documentary evidence prevails over the oral evidence." Admittedly, Ex.P.2 - Sale Deed is the registered document. It is well settled law that registered document carries with it a presumption that it was validly executed. In the decisions reported in (2019) 2 SCC 727 [Jamila Begum Vs. Shameem Mohammed] and [2006] 5 SCC 353 (Premsingh and others Vs. Beerbal and others), in both the cases the Hon'ble Apex Court held that, "There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie / 20 / O.S.No.8373/2018 would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption." The above said decisions are aptly applicable to the case in hand.
22. Section 109 of Transfer of Property Act speaks of a transfer of property by a lessor while the lease subsists. He may transfer the entire property or he may transfer a part of it or he may even transfer any part of his interest in that property. In each of these transfers, the transferee shall possess all the rights of the lessor as to the property or part transferred so long as he is owner of it. At the same time, the transferee shall be subject to all liabilities of the lessor as to the property or part transferred if the lessee so elects. When the lessor sells the entire property leased, the transferee gets all the rights of the lessor including the right to terminate the tenancy by issuing a quit notice because the right to / 21 / O.S.No.8373/2018 terminate the lease by a quit notice is the right of the lessor and Section 109 enables the transferee to exercise all the rights of the lessor including the right to terminate the lease. Therefore, in view of the evidence of PW-1 and DW-1, it becomes clear that, Vijayalaxmi has executed Ex.P.2 - Sale Deed with respect to the suit schedule property in favour of plaintiffs. On the basis of said sale deed, the plaintiffs have acquired the absolute ownership over the suit schedule property. Accordingly, I answer Issue No. 1 the Affirmative.
23. Additional Issue : This issue is framed with respect to termination of tenancy by the plaintiffs. It is the specific case of the plaintiffs that, Vijayalaxmi and defendant have entered into an agreement of lease for a period of 11 months and said lease is terminated by efflux of time, as such the plaintiffs have issued legal notice to the defendant as per Ex.P.3. Thus, the tenancy / 22 / O.S.No.8373/2018 is stand terminated. Per contra, learned counsel for the defendant has vehemently argued that, the defendant has not entered into any lease agreement as claimed by the plaintiffs. The defendant has taken suit schedule premises without fixing lease period as such lease can only be terminated at his option as such the tenancy created in his favor is for perpetuity and cannot be terminated by issuing legal notice.
24. With these rival contentions, I have carefully perused the material placed on record. At the inception, it is pertinent to state that, while answering Issue No.1, I have given clear finding that, the defendant is the tenant under Vijalayaxmi and plaintiffs have purchased the suit schedule property. The defendant himself produced rental agreement dated 2-01-2016. I have carefully perused the terms of rental agreement in detail. The / 23 / O.S.No.8373/2018 lease created in favour of the defendant is not for perpetuity as specific period is mentioned in the rent deed. Further, it is the specific contention of the defendant that, the lease in his favour is created for 10 years period. As per Section 107 of the Transfer of Property Act, a lease of immovable property from year to year or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument. Further, it is no more res-integra that, a lease for year to year through unregistered instrument would only be that of a monthly lease and such lease can be terminated by issuing 15 days prior notice. Further, the defendant, though contended that, the lease created in his favour is for 10 years and can only be terminated at his option, but has failed to prove the same by producing cogent evidence. Even if the contention of the defendant is accepted as un-controverted, admittedly, / 24 / O.S.No.8373/2018 the suit premises is not being used either for manufacturing purpose or for agricultural purpose, under such circumstances, lease shall be treated as monthly lease and can be terminated by issuing prior notice of 15 days as enumerated under Section 106 of Transfer of Property Act. Further, as per Section 111 of Transfer of Property Act, the lease can be terminated by giving quit notice to the defendant. The termination of lease by efflux of time is one of the mode of termination of lease. In this case, the plaintiffs have issued legal notice to the defendant on 10-10-2018 as per Ex.P.3 and said notice is duly served on the defendant. Thus, it is clear that, the lease created in favour of defendant is terminated by efflux of time and same is also terminated by the plaintiffs by issuing quit notice as per Section 111 (h) of the Transfer of Property Act. Thus, I find no force in the arguments of learned counsel for the defendant that, he / 25 / O.S.No.8373/2018 is entitle to be in possession of the suit premises till he wishes. Hence, it is clear that, the lease has been validly terminated by issuing notice. Accordingly, I answer Additional Issue in the Affirmative.
25. Issue Nos.2 and 4 :- These issues are framed with respect to relief of recovery of arrears of rent and damages as claimed by the plaintiffs. The substantive part of Section 109 of Transfer of Property Act read with proviso necessarily indicates that the arrears of rent due are one of lessor's rights as to the property transferred. Right to recover the arrears of rent vested with the original owner, and on transfer of all his rights, the same vests in the transferee as per the proviso of Section 109 of Transfer of Property Act clearly indicates that if there is an assignment of rent due, then the transferee/landlord would be entitled to recover the / 26 / O.S.No.8373/2018 same from the tenant as arrears of rent. The correct position of law is that a transferee is not entitled to recover the arrears of rent for the property on transfer, unless the right to recover the arrears is assigned, then the transferee/landlord can recover those arrear as well. There is no evidence on record to show that the earlier owner Vijayalaxmi has assigned the plaintiff for recovery of arrears of rent. Hence, plaintiffs are not entitled for arrears of rent of Rs.7,66,400/- from the defendant.
26. It is specific case of the plaintiffs that, the defendant is in continuous possession of the suit schedule premises even after termination of tenancy as such they are entitle for damages @ 50,000/- per month from the date of suit to till actual realization. In view of this, I have carefully perused the material placed on record. Defendant also admitted that till today he is in possession of the suit schedule property. On perusal it is / 27 / O.S.No.8373/2018 undisputed fact that, the defendant is in occupation of suit schedule property as on date of suit. While answering Issue No.1 and Additional Issue, I have given finding that, the defendant has entered into an agreement of lease with respect to suit schedule property agreeing to pay monthly rent of Rs. 30,800/- and tenancy is validly terminated. It is pertinent state that, in cross examination, PW-1 has categorically admitted that, defendant has paid earlier rent to Vijayalaxmi. It would be just and proper to direct the defendant to pay an amount of Rs. 30,800/- per month towards possession of suit schedule premises for the period subsequent to the termination of tenancy i.e., from 10-10-2018. Thus, I am of the opinion that, the plaintiffs are entitle for damages of Rs. 30,800/- per month towards occupation of suit schedule property subsequent to termination of tenancy from the date of / 28 / O.S.No.8373/2018 notice i.e., 10.10.2018 to actual delivery of possession of suit schedule property in favour of the plaintiffs @ Rs.30,800/- p.m. Accordingly, I answer Issue No.2 in the negative and Issue No.4 in Partly Affirmative.
27. Issue No.3 : - This issue is framed with respect to entitlement of reliefs claimed by the plaintiffs. The plaintiffs herein have claimed that, a decree for eviction directing the defendant to vacate the suit premises and hand over the possession of suit schedule premises to the plaintiffs. While answering Issue No.1 and Additional Issue, I have concluded that, plaintiffs are absolute owners of suit schedule premises. The relationship of land lord and tenant has been duly terminated by efflux of time.
28. All the rights of lessor are transferred, there vests in the transferee both the causes of action in view / 29 / O.S.No.8373/2018 of Sec. 109 of the Transfer of Property Act. In effect the transferee is put in the same position as the lessor- transferor so far as the property transferred is concerned. Section 109 created what may be called statutory attornment which substitutes, and has the same effect, as contractual attornment, so that because of a transfer of the lease property, or a part thereof, the transferee ipso facto acquires "all the rights" of the lessor, and a new relationship is created between the transferee and the lessee. Letter of attornment is not necessary to complete title to the assignee of the reversion under Section 109. Title of the assignee is complete on the execution of the sale deed and is not postponed till the notice of the assignment. The right of ejectment is inherent in ownership. This Right is like a safeguard in the interest of the Bonafide Transferee.
/ 30 / O.S.No.8373/2018
29. That mere plea by defendant that the sale deed executed by the original owner is illegal or does not confer right is not sufficient. The sale deed was proved by P.W.1. The name of plaintiff was also recorded in the municipal records. On this material which is sufficient, the finding that no intricate question of title is involved and the plaintiff is the owner of the property.
30. It was then contended that the defendant never attorned to the plaintiffs but continued to be the tenant of the erstwhile landlord and there was no relationship of landlord and tenant between the plaintiffs and the defendant and the suit was not maintainable. In the context of Section 109 of the Transfer of Property Act, there is statutory attornment by operation of law so far as the rights of the lessors are concerned.
31. It would thus be seen that right to receive rent of a house or of land accruing after the transfer is a / 31 / O.S.No.8373/2018 covenant running with the land and would pass to the lessor's transferee. There may not be any privity of contract between the lessor's transferee and the sitting lessee but there is a privity of estate, which is sufficient to create a relationship of landlord and tenant. That after the transfer of lessor's right in favour of the transferee he gets all the rights and liabilities of the lessor in respect of the subsisting tenancy. This section does not insist that the transfer will take effect only when the tenant attorns. The provisions of this section give a validity to the transfer made by the lessor with regard to his right in favour of the transferee regarding the subsisting tenancy. A fresh attornment by the lessee to the landlord's assignee is not necessary under the T.P.Act.
32. Whether the defendant had knowledge or not, need not be gone into in view of the fact that the notice / 32 / O.S.No.8373/2018 was issued to the defendant. The defendant had acquired knowledge of the transfer made in favour of plaintiffs atleast from 10-10-2018 when the notice was issued. The notice terminating the tenancy was a valid one. The service of the notice was found to be proved. The plaintiffs are the landlords when the notice was given.
33. The proviso of Section 109 of the Act of 1882, quoted above, indicates that the transferee is not entitled to the arrears of rent due before the transfer, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent all over again to the transferee. While protecting the lessee or tenant from the double payment of rent in question, this proviso also reflects that the lessor or landlord, can continue to have right to collect the rent and seek eviction even / 33 / O.S.No.8373/2018 after transfer of the suit property subject to the contract between the transferor and transferee of the suit property, express or implied; and such later situation is thus not excluded even under Section 109 of the TP Act. Section 109 of the Transfer of Property Act does not require service of notice on the tenant, on alienation of property, to create relationship of landlord and tenant between the transferee landlord and the existing tenant. The transferee of the lessor steps into the shoes and possess all the rights, which the transferor has and the attornment is not a condition precedent, to give validity to the transfer made in favour of the transferee. Section 8 of the T.P.Act specifically provides that a transfer of property passes forthwith, to the transferee, all the interests, which the transferor is capable of passing in the property, including the legal incidents thereof and such incidents include the and profits thereof once the / 34 / O.S.No.8373/2018 title of the assignee is complete, the attornment is automatic not dependent on the tenants attorning or agreeing to the attornment. It is well settled that a transferee of a landlords rights steps into the shoes of the landlord with all the rights and liabilities of the transferor landlord in respect of the subsisting tenancy. The section does not require that the transfer of the right of the landlord could take effect only if the tenant attorns to him. Attornment by tenant is not necessary to confer the validity of the transfer of the landlord.
34. That tenant has no legal justification to question registered sale deed giving notice to tenant by landlord regarding change in ownership is a mere technicality. That, question of title is foreign, in a suit for eviction by landlord against tenant, but in abundant caution, where such issues are found to be necessary, it can be raised incidentally.
/ 35 / O.S.No.8373/2018
35. Hence, in my considered opinion, plaintiffs are entitled for decree for eviction and also for vacant possession of the suit schedule premises. Further, it is clear from the material placed on record that, the defendant continued to be in occupation of suit schedule premises without payment of the rent as agreed by him as such, plaintiffs are entitle for an amount of Rs.30,8000/- per month towards damages for occupation of suit schedule premises for the period subsequent to termination of tenancy from 10-10-2018 to till actual handing over of suit schedule premises. There is no impediment under any law to grant decree for ejectment. Accordingly, I answer Issue No.3 in the affirmative.
36. Issue No.5 : - In view of discussion and conclusion arrived at Issues No.1 to 4 and Additional / 36 / O.S.No.8373/2018 Issue, the suit of plaintiffs deserves to be partly decreed. Accordingly, I proceed to pass following:
ORDER The suit of the plaintiffs is partly decreed with costs.
The defendant is hereby directed to vacate Suit Schedule Premises within a period of three months from the date of this Judgment. Failing which, the plaintiffs can get the possession of Suit Schedule Premises through the process of Court.
The defendant/tenant shall hand over the peaceful and vacant possession of the suit premises to the plaintiffs on or before 01.03.2022 and shall pay mesne profit @ Rs.30,800/- per month commencing from the date of Notice ie.,10-10-2018 and further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the plaintiffs and in case there is any default in / 37 / O.S.No.8373/2018 payment of mesne profit, the period granted for eviction shall stand reduced and the decree of eviction would become executable forthwith.
Draw decree accordingly.
(Dictated to the Judgment Writer, typed directly on the computer, script corrected, signed and then pronounced by me in the open court, this the 29th day of November, 2021.) (KHADARSAB) XXXIX Addl.City Civil & Sessions Judge, Bangalore City.
*** ANNEXURE
1. List of witnesses examined for plaintiffs :
P.W.1 : N.G.Krishnamurthy
2. List of documents exhibited for plaintiffs :
Ex.P.1 General power of attorney dated 19.11.2018 Ex.P.2 C/c of sale deed dated 26.9.2018 Ex.P.3 Office copy of legal notice dated 10.10.2018 Ex.P.4 Copy of reply notice dated 16.11.2018.
3. List of witnesses examined for defendants :
D.W.1 : Prasad Kasthala
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4. List of documents exhibited for defendants :
Ex.D1 Receipt dt 27.4.2016 issued by Whether Star Ex.D2 Tax invoice dt 28.4.2016 issued by Whether Star Ex.D3 Delivery note dt 28.4.2016 issued by Whether Star Ex.D4 Tax invoice dt 29.4.2016 Ex.D5 24 photos Ex.D6 CD in respect of Ex.D5 Ex.D7 Copy of the complaint dt 5.3.2017 Ex.D8 Acknowledgement dt 6.3.2017 issued by PSI Koramangala PS, Bangalore Ex.D9 Copy of the legal notice dt 28.3.2017 issued by Abijith Kumar Jain Advocate on behalf of Smt.Vijayalakshmi Ex.D10 Reply dt 4.5.2017 Ex.D11 2 receipts dt 2.10.2016 issued by Bangalore-one (KHADARSAB) XXXIX Additional City Civil & Sessions Judge, Bangalore City.
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29/11/2021
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Judgment pronounced in the Open
Court (vide separate Judgment) :-
ORDER
The suit of the plaintiffs is partly decreed with costs.
The defendant is hereby directed to vacate Suit Schedule Premises within a period of three months from the date of this Judgment. Failing which, the plaintiffs can get the possession of Suit Schedule Premises through the process of Court.
The defendant/tenant shall hand over the peaceful and vacant possession of the suit premises to the plaintiffs on or before 01.03.2022 and shall pay mesne profit @ Rs.30,800/- per month commencing from the date of Notice ie.,10-10-2018 and further continue to pay the mesne profit each month by 15th day of the next / 41 / O.S.No.8373/2018 succeeding month or in advance to the plaintiffs and in case there is any default in payment of mesne profit, the period granted for eviction shall stand reduced and the decree of eviction would become executable forthwith.
Draw decree accordingly.
(KHADARSAB) XXXIX ACC & S Judge, Bangalore City.