Karnataka High Court
Trilok Chand vs Sri Sumermal K Jain on 28 April, 2020
Author: B.M.Shyam Prasad
Bench: B.M. Shyam Prasad
1
IN THE HIGH COURT OF KARNATAKA BENGALURU
DATED THIS THE 28th DAY OF APRIL 2020
BEFORE
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
CIVIL REVISION PETITION No. 256 OF 2015 C/W
CIVIL REVISION PETITION No. 181 OF 2014 C/W
CIVIL REVISION PETITION No. 182 OF 2014 C/W
CIVIL REVISION PETITION No. 224 OF 2014 C/W
CIVIL REVISION PETITION No. 225 OF 2014 C/W
CIVIL REVISION PETITION No. 255 OF 2015
IN CRP 256/2015
BETWEEN:
1. TRILOK CHAND
SON OF SRI CHAGRAJJI
AGED ABOUT 51 YEARS.
2. SRI AMIT BHANDARI
SON OF SRI TRILOKCHAND
AGED ABOUT 26 YEARS.
BOTH ARE RESIDING AT NO.77,
JINESHWAR APARTMENT
D.NO. 203, K.R. ROAD
BASAVANAGUDI
BENGALURU - 4.
3. SRI NARPATH RAJ
SON OF SRI CHAGRAJJI
AGED ABOUT 46 YEARS.
2
4. SMT. PUSPHA DEVI
WIFE OF SRI NARPATH RAJ
BOTH ARE RESIDING AT NO.15
CHENNARAYA SWAMY TEMPLE STREET
GANIGARAPET
BENGALURU - 560 053.
...PETITIONERS
(BY SRI. RAMESH BABU., ADVOCATE)
AND :
1. SRI SUMERMAL K. JAIN
SON OF LATE SHREE KANMALJI
MAJOR
M/S HITENDRA SALES CORPORATION
NO.39, 2ND FLOOR, GEETHA MANSION
BELLI BASAVANNA TEMPLE STREET
MAMULPET, BENGALURU - 53.
2. SRI MANGALCHAND
PROPRIETOR, M/S HITENDRA
SALES CORPORATION
NO. 39/1, 1ST FLOOR, GEETHA MANSION
MAMULPET, BENGALURU - 53.
3. SRI JAGADESH KUMAR
SON OF LATE P.S. PADMANABHAIAH
AGED ABOUT 46 YEARS
PROP. M/S BHARATH GLASS
AND CROCKERIES, NO. 716
CHICKPET, O.T.C. ROAD
BENGALURU - 53.
... RESPONDENTS
(BY SRI. H.J SANGHVI, ADVOCATE FOR R1;
SRI. S. SHANKAN SHETTY, ADVOCATE FOR R2;
SRI. M.D. RAGHUNATH., ADVOCATE FOR R3)
THIS CRP IS FILED UNDER SECTION 18 OF THE SMALL
CAUSES COURT ACT, AGAINST THE JUDGMENT DATED 21.01.2015
3
PASSED IN REV.PETITION NO. 15002/2014 ON THE FILE OF THE V
ADDL. SMALL CUASES JUDGE & XXIV A.C.M.M, MEMBER, MACT,
BENGALURU, DISMISSING THE REVIEW PETITION FILED UNDER
SECTION 114 READ WITH ORDER 47 RULE 1(1) (B) (C) OF CPC.
IN CRP 181/2014
BETWEEN :
MANGALCHAND
SON OF SUMERMAL K JAIN
AGED 50 YEARS
PROPRIETOR
M/S. HITENDRS SALES CORPORATION
RESIDING AT NO.39/1
I FLOOR, GEETHA MANSION
MAMULPET, BENGALURU - 560 053.
... PETITIONER
(BY SRI. S. SHANKAR SHETTY, ADVOCATE)
AND :
1. P. JAGADESH KUMAR
SON OF LATE P.S. PADMANABHAIAH
AGED ABOUT 48 YEARS
PROPRIETOR
M/S BHARATH GLASS AND
CROCKERIES, NO. 716, CHICKPET
OTC ROAD
BENGALURU - 560 053.
2. SRI. THRILOKCHAND
3. SRI. AMIT BHANDARI
R2 & R3 ARE RESIDING AT NO.77
JINJESWAR APARTMENT.
DOOR NO.203, K.R. ROAD
BASAVANAGUDI
BENGALURU - 4.
4
4. NARAPATHRAJ
5. SMT. PUSHPADEVI
R4 & R5 ARE RESIDING AT NO.15
CHENNARAYANASWAMY TEMPLE
STREET, GANIGARPET
BENGALURU - 560 053.
6. SRI. SUMERMAL K. JAIN
SON OF LATE SHREE KANMALJI
MAJOR
M/S HITENDRA SALES CORPORATION
NO. 39, II FLOOR, GEETHA MANSION
BELLI BASAVANNA TEMPLE STREE
MAMULPET
BENGALURU - 560 053.
... RESPONDENTS
(BY SRI. RAGHUNATH M.D, ADVOCATE FOR R1 & C/R2;
SRI. V RAMESH BABU, ADVOCATE FOR R3 TO R5;
SRI. H.J. SANGHVI, ADVOCATE FOR R6)
THIS CRP IS FILED UNDER SECTION 18 OF THE SMALL
CAUSES COURT ACT, AGAINST THE JUDGMENT DATED DECREE
DATED 15.02.2014 PASSED IN S.C. NO. 15298/2011 ON THE FILE OF
THE XVII ADDL. JUDGE, COURT OF SMALL CAUSES, MAYO HALL
UNIT, BENGALURU, (SCCH 21), DECREEING THE SUIT FOR
POSSESSION.
IN CRP 182/2014
BETWEEN :
MANGALCHAND
SON OF SUMERMAL K JAIN
AGED 50 YEARS
PROPRIETOR
M/S. HITENDRS SALES CORPORATION
RESIDING AT NO.39/1
I FLOOR, GEETHA MANSION
5
MAMULPET, BENGALURU - 560 053.
... PETITIONER
(BY SRI. S. SHANKAR SHETTY, ADVOCATE)
AND :
1. P. JAGADESH KUMAR
SON OF LATE P.S. PADMANABHAIAH
AGED ABOUT 48 YEARS
PROPRIETOR
M/S BHARATH GLASS AND
CROCKERIES, NO. 716, CHICKPET
OTC ROAD
BENGALURU - 560 053.
2. SRI. THRILOKCHAND
3. SRI. AMIT BHANDARI
R2 & R3 ARE RESIDING AT NO.77
JINJESWAR APARTMENT
DOOR NO.203, K.R. ROAD
BASAVANAGUDI
BENGALURU - 4.
4. NARAPATHRAJ
5. SMT. PUSHPADEVI
R4 & R5 ARE RESIDING AT NO.15
CHENNARAYANASWAMY TEMPLE
STREET, GANIGARPET
BENGALURU - 560 053.
6. SRI. SUMERMAL K. JAIN
SON OF LATE SHREE KANMALJI
MAJOR
M/S HITENDRA SALES CORPORATION
NO. 39, II FLOOR, GEETHA MANSION
BELLI BASAVANNA TEMPLE STREE
MAMULPET
6
BENGALURU - 560 053.
... RESPONDENTS
(BY SRI. RAGHUNATH M.D, ADVOCATE FOR R1 & C/R2;
SRI. V RAMESH BABU, ADVOCATE FOR R3 TO R5;
SRI. H.J. SANGHVI, ADVOCATE FOR R6)
THIS CRP IS FILED UNDER SECTION 18 OF SMALL CAUSES
COURT ACT, AGAINST THE JUDGMENT DATED DECREE DATED
15.02.2014 PASSED IN S.C. NO. 15299/2011 ON THE FILE OF THE
XVII ADDL. JUDGE, COURT OF SMALL CAUSES, BENGALURU, (SCCH
21), DECREEING THE SUIT FOR EJECTMENT.
IN CRP 224/2014
BETWEEN :
SRI. SUMERMAL K. JAIN
SON OF LATE KANMALJI
MAJOR
M/S MANGALCHAND HITENDRA
KUMAR & CO.
A PORTION OF THE SHOP PREMISES
NO.39, SECOND FLOOR
GEETHA MANSION
BELLI BASAVANNA TEMPLE STREE
MAMULPET, BENGALURU - 560 053.
... PETITIONER
(BY SRI. H.J. SANGHVI, ADVOCATE)
AND :
1. SRI P. JAGADEESH KUMAR
SON OF LATE P.S. PADMANABHAIAH
AGED ABOUT 51 YEARS
PROPRIETOR
M/S BHARATH GLASS AND
CROCKERIES, NO. 716, CHICKPET
OTC ROAD, BENGALURU - 560 053.
2. SRI. THRILOKCHAND
AGED MAJOR.
7
3. SRI. AMIT BHANDARI
MAJOR.
R2 & R3 ARE RESIDING AT NO.77
JINESWAR APARTMENT.
DOOR NO.203, K.R. ROAD
BASAVANAGUDI
BENGALURU - 4.
4. SRI. NARAPATHRAJ
MAJOR.
5. SMT. PUSHPADEVI
MAJOR
BOTH RESIDING AT NO.15
CHENNARAYANASWAMY TEMPLE
STREET, GANIGARPET
BENGALURU - 560 053.
6. SRI. MANGALCHAND
PROPRIETOR OF
M/S HITENDRA SALES CORPORATION
RESIDING AT NO. 39/1,
I FLOOR, GEETHA MANSION
MAMULPET
BENGALURU - 560 053.
... RESPONDENTS
(BY SRI. RAGHUNATH M.D, ADVOCATE FOR R1 & C/R2;
SRI. V RAMESH BABU, ADVOCATE FOR R3 TO R5;
SRI.S.SHANKAR SHETTY, ADVOCATE FOR R6)
THIS CRP IS FILED UNDER SECTION 18 OF THE SMALL
CAUSES COURT ACT, AGAINST THE JUDGMENT DATED DECREE
DATED 15.02.2014 PASSED IN S.C. NO. 15298/2011 ON THE FILE OF
THE XVII ADDL. JUDGE, COURT OF SMALL CAUSES, MAYO HALL
UNIT, BENGALURU, (SCCH 21), DECREEING THE SUIT FOR
POSSESSION.
8
IN CRP 225/2014
BETWEEN :
SRI. SUMERMAL K. JAIN
SON OF LATE KANMALJI
MAJOR
M/S MANGALCHAND HITENDRA
KUMAR & CO.
A PORTION OF THE SHOP PREMISES
NO.39, FIRST FLOOR
GEETHA MANSION
BELLI BASAVANNA TEMPLE STREET
MAMULPET, BENGALURU - 560 053.
... PETITIONER
(BY SRI. H.J. SANGHVI, ADVOCATE)
AND :
1. SRI. P. JAGADEESH KUMAR
SON OF LATE P.S. PADMANABHAIAH
AGED ABOUT 51 YEARS
PROPRIETOR
M/S BHARATH GLASS AND
CROCKERIES, NO. 716, CHICKPET
OTC ROAD, BENGALURU - 560 053.
2. SRI. THRILOKCHAND
AGED MAJOR.
3. SRI. AMIT BHANDARI
MAJOR.
BOTH RESIDING AT NO.77
JINESWAR APARTMENT.
DOOR NO.203, K.R. ROAD
BASAVANAGUDI
BENGALURU - 4.
4. SRI. NARAPATHRAJ
MAJOR.
9
5. SMT. PUSHPADEVI
MAJOR
BOTH RESIDING AT NO.15
CHENNARAYANASWAMY TEMPLE
STREET, GANIGARPET
BENGALURU - 560 053.
6. SRI. MANGALCHAND
PROPRIETOR OF M/S HITENDRA
SALES CORPORATION
RESIDING AT NO. 39/1,
I FLOOR, GEETHA MANSION
MAMULPET
BENGALURU - 560 053.
... RESPONDENTS
(BY SRI. RAGHUNATH M.D, ADVOCATE FOR R1 & C/R2;
SRI. V RAMESH BABU, ADVOCATE FOR R3 TO R5;
SRI.S.SHANKAR SHETTY, ADVOCATE FOR R6)
THIS CRP IS FILED UNDER SECTION 18 OF THE SMALL
CAUSES COURT ACT, AGAINST THE JUDGMENT DATED 15.02.2014
PASSED IN S.C. NO. 15299/2011 ON THE FILE OF THE XVII ADDL.
JUDGE, COURT OF SMALL CAUSES, MAYO HALL UNIT, BENGALURU,
(SCCH 21), DECREEING THE SUIT FOR POSSESSION.
IN CRP 255/2015
BETWEEN:
1. TRILOK CHAND
SON OF SRI CHAGRAJJI
AGED ABOUT 51 YEARS.
2. SRI AMIT BHANDARI
SON OF SRI TRILOKCHAND
AGED ABOUT 26 YEARS.
BOTH ARE RESIDING AT NO.77,
JINESHWAR APARTMENT
D.NO. 203, K.R. ROAD
BASAVANAGUDI
BENGALURU - 4.
10
3. SRI NARPATH RAJ
SON OF SRI CHAGRAJJI
AGED ABOUT 46 YEARS.
4. SMT. PUSPHA DEVI
WIFE OF SRI NARPATH RAJ
BOTH ARE RESIDING AT NO.15
CHENNARAYA SWAMY TEMPLE STREET
GANIGARAPET
BENGALURU - 560 053.
...PETITIONERS
(BY SRI. RAMESH BABU., ADVOCATE)
AND :
1. SRI SUMERMAL K. JAIN
SON OF LATE SHREE KANMALJI
MAJOR
M/S HITENDRA SALES CORPORATION
NO.39, 2ND FLOOR, GEETHA MANSION
BELLI BASAVANNA TEMPLE STREET
MAMULPET, BENGALURU - 53.
2. SRI MANGALCHAND
PROPRIETOR, M/S HITENDRA
SALES CORPORATION
NO. 39/1, 1ST FLOOR, GEETHA MANSION
MAMULPET, BENGALURU - 53.
3. SRI JAGADESH KUMAR
SON OF LATE P.S. PADMANABHAIAH
AGED ABOUT 46 YEARS
PROP. M/S BHARATH GLASS
AND CROCKERIES, NO. 716
CHICKPET, O.T.C. ROAD
BENGALURU - 53.
... RESPONDENTS
(BY SRI. H.J SANGHVI, ADVOCATE FOR R1;
SRI. S. SHANKAN SHETTY, ADVOCATE FOR R2;
SRI. M.D. RAGHUNATH., ADVOCATE FOR R3)
11
THIS CRP IS FILED UNDER SECTION 18 OF THE SMALL
CAUSES COURT ACT, AGAINST THE ORDER DATED 21.01.2015
PASSED IN REV.PETITION NO. 15001/2014 ON THE FILE OF THE V
ADDL. SMALL CAUSES JUDGE & XXIV A.C.M.M, COURT OF SMALL
CAUSES, MAYO HALL UNIT, BENGALURU, DISMISSING THE REVIEW
PETITION FILED UNDER SECTION 114 READ WITH ORDER 47 RULE
1(1)(B)(C) OF CPC.
THESE CRP HAVING BEEN HEARD AND RESERVED ON
29.01.2020 AND COMING ON FOR PRONOUNCEMENT OF ORDERS
THIS DAY, THIS COURT PASSED THE FOLLOWING:
JUDGMENT
These civil revision petitions are filed by the two defendants as well as some of the plaintiffs in two suits for ejectment in SC No. 15298/20111 and in SC No. 15299/20112 on the file of the XVII Additional Judge, Court of Small Causes Mayo Hall Unit, Bengaluru (for short, the 'Trial Court). The trial Court by its separate but similar judgements dated 15.02.2014 has decreed the suits 1 Initially filed as suit in OS No.17133/2006 on the file of the City Civil Court Judge, Bengaluru and later transferred to the file of the Small Causes Court.
2 Initially filed as suit in OS No.17134/2006 on the file of the City Civil Court Judge, Bengaluru and later transferred to the file of the Small Causes Court.
12directing the common first defendant in both the suits to vacate and handover vacant possession of the corresponding premises to the common first plaintiff in both the suits while also directing the first plaintiff to return the advances paid by the first defendant after deducting rent for the respective premises at the rate of Rs. 2709/- and Rs. 1924/- per month from the date of the suit till the date of decree.
2. The first and second defendants have filed the respective civil revision petitions in CRP No. 224/2014 and CRP No. 225 of 2014 and CRP No. 181/2014 and 182/of 2014 impugning the judgement dated 15.02.2014 in SC No. 15298/2011 and in SC No. 15299/2011. The second to fifth plaintiffs, after the impugned judgements dated 15.02.2014, have filed review petitions in Review Petition Nos. 15001/2014 and 15002/2014 before the trial Court for review of the impugned judgements contending that there is error apparent on the face of the record in directing 13 the first defendant to handover vacant possession to the first plaintiff and the first defendant should be directed to handover vacant possession to them. The trial Court by its separate but similar order dated 21.01.2015 has rejected these petitions. Therefore, the second to fifth plaintiffs have filed civil revision petitions in CRP No. 255/2015 and CRP No. 256/2015 challenging the trial Court's order dated 21.01.2015.
3. The parties are similarly arrayed in both the suits in SC No. 15298/ and SC No. 15299/2011. It would be convenient to refer to the parties as they are arrayed before the trial Court and therefore, they are accordingly referred in the course of this judgement. Initially, the first plaintiff filed the suits in SC No. 15298/2011 and 15299/2011 only against the first defendant for ejectment describing the subject properties as follows: 14
• In SC No. 15298/2011 - A portion of first floor (converted into two portions by the defendant) of the premises bearing old No. 103, later No. 104, new No. 39, Geetha mansion, Belli Basavanna Temple Street, Mamulpet, Bangalore, measuring 25 X 34 feet", and • IN SC No. 15299/2011 - A portion of second floor (converted into two portions by the defendant) of the premises bearing old No. 103, later No. 104, new No. 39, Geetha mansion, Belli Basavanna Temple Street, Mamulpet, Bangalore, measuring 25 X 34 feet".
These premises for convenience are individually referred to as 'the First Floor Premises' and 'the Second Floor Premises', respectively, and collectively as 'the subject Premises'.
4. The second defendant impleaded himself in both the suits contending that he is in possession and enjoyment of the subject premises but the first plaintiff, in collusion with the first defendant, has filed the suits for 15 ejectment excluding him. Subsequently, the second to fifth plaintiffs impleaded themselves in these suits as co- plaintiffs asserting that they had purchased 5/6th share in the larger property, including the subject premises, from the first plaintiff and his mother during the pendency of the suits and therefore, they are entitled for the decree of ejectment. The pleadings in both the suits by all the parties are similar.
5. The first plaintiff has asserted that the subject premises are part of a larger property owned by his father, late Sri P S Padmanabhaiah, who died on 29.02.1992 leaving behind his Last Will and Testament dated 18.01.1986. He has succeeded to the subject premises (and the larger property) as a legatee under the Last Will and Testament dated 18.01.1986. The Khata for the entire property is made in his name. The first defendant is put in possession of a portion of the First and the Second Floor premises under separate lease agreements both dated 16 01.04.2002. The tenancy in favour of the first defendant is a month to month tenancy. The first defendant is paying current monthly rent of Rs.1924/- and Rs.2709/- respectively. The first plaintiff requires the subject premises for his own occupation and use because he is running a business under the name and style, 'Bharat Glass and Crockery' in rented premises. He has caused separate legal notices dated 06.09.2006 terminating the lease of the subject premises and calling upon the first defendant to vacate and handover vacant possession. The first defendant, though has received the legal notice dated 06.09.2006, has not vacated and handed over the possession of the subject premises. Therefore, he is entitled for a judgement and decree directing the first defendant to quit and deliver vacant possession of the subject premises. The plaints are not amended at the instance of second to fifth plaintiffs or otherwise even though they are subsequently impleaded.
17
6. The first defendant has filed his written statements asserting that the second floor comprises of two residential portions i.e., the eastern and the western portions. The second defendant is inducted as a tenant of the eastern portion of the second floor premises in the year 1986 by M/s Mahadeshwara Enterprises. Mr. Yeshwant Kumar S Jain, one of the sons of the second defendant is in possession of the first floor premises. The first plaintiff has filed a single petition against the second defendant for eviction from the subject premises under the provisions of the Karnataka Rent Control Act, 1961 in HRC No.1269/1996. This petition in HRC No. 1269/1996 is dismissed. The second defendant and Mr. Yeshwant Kumar S Jain have continued as tenants in occupation of the aforesaid two respective portions, which are the subject premises. The first defendant is in possession of the western portion of the second floor as a tenant. He has entered possession of this second floor premises under the 18 lease deed dated 01.06.2001 after paying a corresponding refundable deposit of Rs.3,25,000/-. The first plaintiff has executed appropriate receipt acknowledging the receipt of the said deposit. The suits are bad in law for mis-joider of parties.
7. The first defendant has also contended that the subject premises are residential premises and the monthly rent is less than Rs.3500/-. Therefore, the first plaintiff could not have filed suits for ejectment; if there could be any eviction, it could only be under the provisions of the Karnataka Rent Act, 1999 (for short, 'the Karnataka Rent Act'). The first respondent has also denied the plaintiff's title to the property under the Will dated 18.1.1986.
8. The second defendant has taken similar defense as the first defendant but asserting that the second floor premises comprises of three portions. The first plaintiff is in possession of the first portion, the first defendant is in 19 possession of second portion and that he is in possession of the third portion. The lease of the subject premises is for dual purposes viz., residential and business purposes. The monthly rental for each of the subject premises is below Rs. 3500/-. Therefore, suits for ejectment would not be maintainable, and the first plaintiff's remedy, if any, could only be under the provisions of the Karnataka Rent Act. The second respondent has also asserted that the Last Will and Testament dated 18.01.1986 asserted by the first plaintiff is fabricated, and in any event even according to this Will dated 18.01.1986, the subject premises are bequeathed in favour of another son, Sri P Nagaraj who is no more and is survived by his wife and children. They have filed suit in OS No. 26185/2009 for declaration3, and not only is the first plaintiff arrayed as a defendant, his mother and sisters are also arrayed as defendants in the 3 This suit in OS No. 26185/2009 is a suit for partition of 1/6th share in the larger property with the prayer for declaration that the Last Will and Testament dated 18.01.1986 is null and void. 20 suit. The first plaintiff has deliberately not included his mother and sisters in the present proceedings and therefore, the suit is bad in law for mis-joinder as well as non-joinder of parties.
9. The second defendant has further contended that the first plaintiff had filed a petition under the previous Karnataka Rent Control Act, 1961 in HRC No. 1269/1996 for his eviction from the schedule premises. The first plaintiff and he entered in to a compromise agreeing upon some terms. According to the agreed terms, he has paid an advance sum of Rs. 1,50,000/- for the first floor premises and a sum of Rs. 4,70,000/- for the second floor premises, and he has also paid additional amounts as goodwill. He has been paying rents to the first plaintiff ever since, and he is paying such rents by way of cheques. The first plaintiff has filed the present proceedings suppressing these material facts falsely asserting that the first defendant is in possession of the subject premises as 21 tenant. The tenancy in his favour is not terminated and as such, the suit is liable to be dismissed.
10. On behalf of the plaintiffs, both in SC Nos. 15298/2011 and 15299/2011, the first plaintiff is examined as PW1. As regards the exhibits on behalf the plaintiffs in both these proceedings, the plaintiffs have marked similar documents as exhibits. These Exhibits could be seen in five clusters: Exhibits P1 to P7 are Tax Paid Receipts, Katha for the larger property that includes the subject premises, a copy of the Will, and a letter by the Bank affirming that the original of these documents have been deposited as security for the loan availed by the first plaintiff; Exhibit P8 to P15 are the corresponding lease agreements (Ex. P8) relied upon by the first plaintiff, bank statements as proof of payment of rent in favour of the first plaintiff, the corresponding legal notice and the letters exchanged with the postal department as regards the service of the legal notices on the first defendant; Exhibits 22 P16 to P18 are prior lease deeds, Deed of Surrender of lease (Ex. P17), letter of attornment - these pertain to the transaction entered into by the first plaintiff's father, Sri P S Padmanabhaiah and M/s Mahadeshwara Enterprises and the subsequent attornment by the tenants in possession of the different premises; Exhibit P19 to P21 are photographs and letters issued by the Assistant Commissioner, Commercial Tax Department, Bangalore.
11. On behalf of the defendants, the second defendant is examined as DW1, Mr. Renukesh is examined as DW2, Mr. Hitender S Jain is examined as DW3, Mr.Rajesh M Jain is examined as DW4 and Mr. Yeshwant S Jain, one of the sons of the first defendant and his Power of Attorney, is examined as DW5. These witnesses are common in both the proceedings. The exhibits marked are also similar. These documents include the second defendant's voter identity card and passport, pleadings and order sheet in HRC No.1269/1996 and OS No.26185/ 23 2009, a copy of the sale deed dated 11.11.2010 executed by the first plaintiff in favour of Mr. Trilok Chand and the second to fifth plaintiffs, Rental Receipts, lease agreement in favour of the first defendant, Acknowledgments executed by the first plaintiff as regards the advance paid, the second respondent's Bank statement, Self Assessment Declaration of Municipal Taxes and a power of attorney executed by the first defendant in favour of Mr. Yeshwant S Jain (DW5).
12. The first plaintiff in his evidence has reiterated the plaint averments as regards the construction of the building (larger property) pursuant to a lease arrangement between his father, Sri P S Padmanabhaiah, and M/s Mahadeshwara Enterprises, the subsequent surrender of lease by M/s Mahadeshwara Enterprises in favour of Sri P S Padmanabhaiah and the consequential attornement of tenancies in his favour. The first plaintiff has further 24 stated that after the demise of his father he has issued notice to the second defendant, who is the son of the first defendant, calling upon him to quit and deliver vacant possession of the subject premises. He and the second defendant have agreed upon terms after the issuance of this notice. In terms of such settlement, the second defendant has acknowledged that he has handed over vacant possession of the subject property to him. He has thereafter executed fresh lease agreements dated 01.04.2002 in favour of the first defendant for the subject premises for a period of 11 months. It is agreed between the first plaintiff and the first defendant that the first defendant could sub-lease the subject premises only to his four sons, including the second defendant. The defendants are thus in possession of the subject premises and they are carrying on business under the name and style, M/s Mangalchand Hitendra Kumar and Bros. and M/s Hitendra Sales Corporation respectively in the subject premises. 25
13. The first plaintiff has also stated that the lease of the subject premises is for commercial reasons and not for residential purposes. He has also stated about his sister-in-law, Mrs. Paulin and her children filing an application to implead themselves in the present proceedings and the dismissal of this application by the Trial Court and the confirmation thereof by this Court in WP No. 26778-26786/2009.
14. The first plaintiff (PW1) has been cross- examined on different dates in the proceedings. He has been cross-examined about the number of units in the different floors in the building, the measurements of these units, the persons in occupation of these units, the advance paid by the defendants to the first plaintiff as well as Sri P S Padmanabhaiah, the documents executed between the first plaintiff and the first defendant upon the 26 second defendant (as asserted by the first plaintiff) amicably surrendering possession of the subject premises leading to execution of lease agreements (Exhibit P8 in each of the cases) with the first defendant, the use of the subject premises as godown/residential premises, the issuance of legal notice for termination of tenancy and the payment of rents. The first plaintiff (PW1) has also been cross- examined about the transfer under the sale deed executed by him and his mother in favour of Mr.Trilok Chand and the second to fifth plaintiffs.
15. The first plaintiff (PW1) has remained steadfast in stating that the second defendant voluntarily handed over vacant possession of the subject premises after an amicable resolution; that later he has entered into lease agreements dated 01.04.2002 with the first defendant; that the lease of the subject premises in favour of the first defendant is subject to the condition that the first 27 defendant could sub-lease the property to his four sons; that the subject premises are used as godowns; that there are only two units each in the First and Second Floors; that there is no error in description of the subject premises in the respective plaints; that the first defendant is the tenant and the firms constituted by him with his sons are using the subject premises as godowns; that the second defendant is not in possession of any portion of the larger property in his own right as a tenant; that the rentals for the subject premises have always been paid by cheques; that he has indeed transferred 5/6th share in the larger property to Mr. Trilok Chand and the second to fifth plaintiffs; that he has issued legal notices of termination addressed to the first defendant and such legal notices have been served; that he has recovered possession of a portion of the first floor occupied by the second defendant's wife in execution of a decree for ejectment against her. 28
16. The second defendant in his chief-examination has also reiterated his defence that he is in possession of the subject premises as the tenant and the first plaintiff has filed the present suits in collusion with the first defendant. The first plaintiff has filed proceedings in HRC No. 1269/1996 against him for eviction because he is in possession of the schedule premises. This petition is dismissed for default in the year 2000-2001. There is an amicable settlement between the first plaintiff and him, and in terms of such settlement, he has paid to the first plaintiff additional deposit of Rs.1,50,000/-and Rs.1,25,000/- respectively for the subject premises. He is paying enhanced rent for the subject premises, and he is currently paying a sum of Rs.1924/- for the first floor premises and Rs.924/- for the second floor premises.
17. The second defendant has also stated that the schedule premises are used for residential purposes and 29 not as godowns. The first plaintiff is not the owner of the subject premises, and the real owner is Mrs. Paulin and children i.e., the legal representatives of Mr. Nagaraj, the other son of Mr. P S Padmanabhaiah. Mrs. Paulin and her children have filed suit in O.S. No. 26185/2009 seeking partition, and there is an interim order of injunction against alienation. The first plaintiff has executed the sale deed in favour of Mr. Trilok Chand and the second to fifth plaintiffs despite this interim order.
18. The second defendant in his cross-examination has tried to bolster his case in asserting that his relationship with his father is strained, and the relationship between them has been strained from the year 2008-2009. But, he has also stated that he and his father are residing in the same premises together and there are no legal proceedings between them. Though he has stated that he cannot identify his father's signature in the separate lease agreements for the subject premises (which are marked as 30 Exhibit P8 in both the cases), he also states that he has come to know about the lease agreement between the first plaintiff and his father during the pendency of the present proceedings. He also has identified Exhibit P8 in both the cases as the lease agreements executed by his father, the first defendant. He admits that he has not challenged the lease agreements as per Exhibit P8.
19. Further, the second defendant has admitted that his father, his brothers and he are partners of different firms including M/s Mangalchand Hitendra Kumar and Bros. and M/s Hitendra Sales Corporation. These firms are sister concerns and they have acquired, either under lease or sale, different premises in the city of Bengaluru for use as godowns, and they have filed necessary declaration with the concerned authorities for registration of such godowns for the purposes of VAT. They have declared that the subject premises are being used as godowns. He has also 31 admitted the photographs marked as Exhibits P17 and P18 as photographs of the subject premises. In response to a suggestion that the photographs show the name board of the businesses and it is written in these name boards that they are godown premises, the second respondent, without denying the same, has stated that it is so written by the printer. Significantly, the second defendant has stated that he was paying rents to the first plaintiff until 2006 and from 2007 - 2008 he has paid rents to Mrs. Paulin. He has documents to show that he has paid rents to Mrs. Paulin and that he can produce those documents before the court as exhibits. However, no document is produced in this regard.
20. The second defendant has examined Mr Renukesh as DW-2, and this witness has stated in his chief examination that he is acquainted with the defendant's family. The second defendant and all his family members reside in the schedule premises and the second defendant 32 is the tenant. The credibility of this witness is rendered very tenuous with this witness being unable to recognise the photographs that are admittedly of the schedule premises and because he is not aware of any documentation between the first plaintiff and the defendants. One of the other sons of the first defendant, Mr. Hitendar S Jain, is examined as DW-3. This witness has admitted that he, his father and brothers are engaged in business as traders in toys and they conduct their businesses under the name and style as mentioned by the second defendant. This witness asserts that all the family members are residing in the schedule premises, and in what appears to be a convenient answer, when confronted with the photographs of the schedule premises submits that the name boards seen in the photograph are no longer therein the premises. Mr. Rajesh M Jain, a relative of the second defendant has been examined has DW4, and the Chief thrust of this witness's testimony is that the 33 defendants and the family members reside in the schedule premises and they do not conduct business from these premises.
21. The first defendant has not examined himself, but his Power of Attorney and one of the sons, Mr. Yashwant S Jain, is examined as DW5. His evidence is a repetition of the evidence of the second defendant inasmuch as he asserts that all the family members, except the second defendant, reside together in the first floor premises, but the second defendant resides in the second floor premises. Materially, this witness admits the first defendant's signature in the lease agreements (Exhibit P8 in both the cases) and that the family members are conducting businesses under the name and style, M/s Mangalam Chand Hitendra Kumar and Brothers and M/s Hitendra sales Corporation and other sister concerns. 34
22. The trial Court has formulated the following points for its consideration in both the suits:
"i. Whether the plaintiffs prove that the first defendant is the tenant of the suit schedule property under the first plaintiff, ii. Whether the first plaintiff has terminated the tenancy of the first defendant, iii. Whether the trial Court has got jurisdiction to try the suit, iv. Whether the plaintiffs are entitled for ejectment of the first defendant from the suit schedule property as claimed, and v. What order or decree"
23. The trial Court has concluded that the defendants, who have admitted the landlord - tenant relationship with the first plaintiff at the commencement of the lease, are estopped from denying the first plaintiff's title of possession. There cannot be denial of the landlord - 35 tenant relationship with the first plaintiff even if the suit for partition filed by Mrs. Paulin and her children is pending consideration. As regards the defense that the second defendant is the tenant in possession of the subject premises but the suit is filed by the first plaintiff against the first defendant, and the allegation by the second defendant that there is collusion between the first plaintiff and the first defendant, the trial Court has concluded that this defense cannot be accepted because it is admitted that the first and the second defendants are jointly occupying the subject premises, that execution of lease agreements (Exhibit P8) is not disputed, and that the father and the sons conduct similar business in the subject premises under different names and are members of a family with common interests.
24. The trial Court has also concluded that it is established by the first plaintiff that after the disposal of the proceeding in HRC No. 1269/2006 tenancy in terms of 36 the lease agreements (Exhibit P8) is created in favour of the first defendant and that the first defendant is in possession of the subject premises as a tenant under the first plaintiff. The trial Court, with this finding on point No.1 and without there being serious dispute about the issuance of legal notices by the first plaintiff to the first defendant terminating the tenancy, has concluded that the first respondent has validly terminated the lease as required in law.
25. The trial Court as regards its jurisdiction to entertain the suit in view of the provisions of the Karnataka Rent Act, has concluded that the plaintiffs are able to establish that the schedule premises is being used for non- residential - godown - purposes. The trial Court in arriving at this conclusion has relied upon admitted photographs of the subject premises with the name board indicating that the premises are godowns for the defendants' businesses and the communication by the Commercial Tax 37 Department affirming that the subject premises are in the list registered with them as Godowns for the defendants' businesses as per their declaration. Lastly, the trial Court has found that neither sale in favour of Mr. Trilok Chand and the second to fifth plaintiffs nor pendency of the civil suit filed by Mrs. Paulin and her children can defeat the first plaintiff's right as the acknowledged landlord to seek eviction. Further, the trial Court has directed the first defendant to handover vacant possession of the subject premises to the first plaintiff with direction to the first plaintiff to return the deposits after deducting the rent payable at the rates first mentioned above from the date of the suits till the date of delivery of vacant possession of the subject premises.
26. Sri Shekar Shetty, learned counsel arguing in support of the petitions filed by the second defendant, submits that the trial Court has failed to consider the admitted fact that the first plaintiff, along with his mother, 38 has executed sale deed dated 11.11.2010 transferring undivided 5/6th share in the larger property in favour of Mr. Trilok Chand and the second to fifth plaintiffs. The first plaintiff with this sale loses the locus to prosecute the suit and Mr. Trilok Chand and second to fifth plaintiffs, successors in interest entitled to the benefit under the provisions of section 109 of the Transfer of Property Act, 1882, (for short, 'the T P Act'), cannot take advantage of the notice issued by the first plaintiff. The second to fifth defendants, who have succeeded to the whole estate after the demise of Mr. Trilok Chand, will have to issue fresh legal notice terminating the tenancy as required under section 106 of the T P Act. But, these plaintiffs have not issued any such notice and therefore, they cannot succeed in the suits. In continuation of these submissions, the learned counsel relying upon the decision of the Hon'ble Supreme Court in V Dhanapal Chettiar v. Yesodai 39 Ammal4 submits that unless lease is terminated by appropriate issuance of notice as contemplated under section 106 of the T P Act, a tenant is entitled to continue in possession. In the present case there is no such termination and therefore, the suits are liable to be dismissed on these grounds. The trial Court has decreed the suits ignoring this material infirmity.
27. Sri. Shekar Shetty next submits that it is indisputable from the pleadings in HRC No. 1269/2006 that the first plaintiff filed a single eviction petition under the previous Rent Act viz., Karnataka Rent Control Act, 1961 both in respect of the first floor as well as the second floor premises. This demonstrates that the lease of the subject premises is an integrated lease. The first plaintiff in filing the present two suits has split the tenancy and this is impermissible in law. The suits are liable to be 4 AIR 1979 SUPREME COURT 1745 40 dismissed on this sole ground, but the trial Court has overlooked this very salient feature.
28. Sri. Shekar Shetty further submits that the lease of the subject premises, whether in favour of the first defendant or the second defendant, in the facts and circumstances of the case, could only be for residential purposes and is also accordingly used. It is undisputed that the rent for the first floor premises is Rs.1924/- and for the second floor is Rs.924/-. Thus, the total rent for the subject premises is in a total sum of Rs.2840/-. The provisions of section 2(3)(e) of the Karnataka Rent Act is categorical that the provisions thereof would not apply in cases of residential premises only where the rent, in the cases of properties situated in Bengaluru city, is below Rs.3500/-.
41
29. Sri. Shekar Shetty elaborates his submission that the lease of the subject premises should be construed as being only for residential purposes relying on two fold submissions. He submits that it has been held by the Punjab and Haryana High Court in its decision in Ram Chander Baru Rama v. State of Punjab5 that if premises are used for godown purposes it cannot be construed that the premises is put to use either as a 'Shop' or a 'Commercial Establishment'. Therefore, even if the subject premises are used as godowns, such use cannot be construed as use for commercial purposes and the user will have to be construed as residential.
30. Sri. Shekar Shetty next submits that it is settled law that it is not permissible for the courts to split up a contract of tenancy in eviction proceedings. If the lease of two premises is an integrated lease for dual purposes, and 5 AIR 1963 Punjab 1948 42 use of one of the premises for a particular purpose entitles protection under the Rent Act, such protection extends to the premises used for other purposes as well. The learned counsel relies upon the decision of the Hon'ble Supreme Court in Nilesh Nandkumar Shah v. Sikander Aziz Patel6 in support of this proposition
31. Sri Shekar Shetty further substantiates by canvassing that the evidence on record is that the second defendant is using one the subject premises for residential purposes and the other premises as godown. The combined monthly rent is Rs. 2840/- (much less than the threshold of the monthly rental of Rs. 3500/-). The lease of the first and second floors is under a single and integrated lease. The tenancy of the first floor premises is undoubtedly protected under the provisions of the Karnataka Rent Act in view of the provisions of section 2(3)(e) thereof. Therefore, 6 AIR 2002 Supreme Court 3073 43 even if one of the subject premises is used as a Godown, the plaintiffs' remedy, even if any, would only be under the provisions of the Karnataka Rent Act.
32. Sri. Shekar Shetty contends that the first plaintiffs' case is that there was an amicable settlement between himself and the second defendant who, in performance of the terms of such amicable settlement, surrendered possession of the subject premises to him and thereafter, he has inducted the first defendant in possession of the subject premises. However, neither the tenancy is established nor the subsequent lease agreements are proved. The learned counsel relying upon the decision of the Hon'ble Supreme Court in Roop Singh Negi v. Punjab National Bank and others7 submits that the plaintiffs have only produced Lease Agreements as per Exhibit P 8, but mere tendering the documents would not 7 (2009) 2 Supreme Court Cases 570 44 prove the same and witnesses had to be examined to prove the document.
33. Sri. Shekar Shetty submits that the fact that the first plaintiff has failed to establish that the aforesaid destroys the very edifice of the case against the defendants, and the trial Court has decreed the suit without considering the same. He also submits that the first plaintiff in setting up surrender of lease and subsequent tenancy in favour of the first defendant is playing fraud on the Court. There is neither the surrender of lease nor the subsequent tenancy, and these claims are based on fraudulent documentation. As such, the entire proceeding is vitiated. Lastly, he relies upon the decision of the Hon'ble Supreme Court in Executive Officer, Arulmigu Chokkantha Swamy Koil Trust, Virudhnagar v. Chandran8 and submits that the first plaintiff's mother and his sisters are not parties to the proceedings, and they 8 (2017) 3 Supreme Court cases 702 45 are necessary parties. The aforesaid grounds demonstrate that the trial Court did not have the jurisdiction to entertain the suits, and even if it could, it has wrongly exercised the jurisdiction. Therefore, the impugned judgement and decree in both the suits are to be set aside.
34. Mr. H J Singhvi, the learned counsel for the first defendant adopts the submissions by Sri Shekar Shetty, and he relies upon the decision of the Hon'ble Supreme Court in Appollo Zipper India Ltd versus W. Newman and Co. Ltd9 to submit that though under section 116 of the Evidence Act a tenant is estopped from challenging the title of his landlord, the tenant could challenge the derivative title of an assignee in an action brought by the assignee against the tenant for his eviction under the Rent Laws however subject to the condition that the tenant has not attorned to the assignee. In the present case, the first 9 (2018) 6 Supreme Court Cases 744 46 defendant, has not attorned to the second to fifth plaintiffs and therefore, the first defendant is entitled to demonstrate that the second to fifth plaintiffs have not derived any title under the sale deed dated 11.11.2010. The Last Will and Testament dated 18.01.1986 set up by the first plaintiff to claim exclusive title to the subject premises is not proved, and if such title is not proved there cannot be an acceptable transfer in favour of the second to fifth plaintiffs for them to be entitled to a decree for ejectment. Therefore, the civil revision petitions by the second to fifth plaintiffs have to be rejected.
35. Sri. Raghunath M D and Sri Ramesh Babu, the learned counsel respectively for the first plaintiff and second to fifth plaintiffs, argue in support of the impugned judgements refuting the submissions by Sri. Shekar S Shetty. They submit that the first plaintiff, who is one of the sons of Mr. P.S Padmanabhaiah and a legatee under the Will dated 18.1.1986, could have instituted the suits for 47 ejectment even as a co-owner. In support of this submission the learned counsel rely upon the proposition that a suit for ejectment by a co-owner would be maintainable in law and that it is not necessary for such co-owner to demonstrate the consent of the other co- owners because such consent is assumed unless it is shown that the other co-owners were not agreeable for eviction. They emphasise that there is nothing on record to indicate that the other co-owners i.e., the wife and daughters of Mr. P.S. Padmanabhaiah are not agreeable for eviction. In this regard the learned counsel rely upon the decisions of the Hon'ble Supreme Court in Ram Parischa v. Jagannath and others10, M/s India Umbrella Manufacturing Co. and others versus Bhagabandei Agarwalla11and Mohinder Prasad Jain v. Manohar Lal Jain12.
10 AIR 1976 Supreme Court 2335 11 2004) 3 Supreme Court Cases 178 12 AIR 2006 Supreme Court 1471 48
36. The learned Counsel submit that the canvass that the first plaintiff has lost locus with the sale of 5/6th share in the larger property in favour of Mr. Trilok Chand and the second to fifth plaintiffs and that these other plaintiffs have impleaded themselves as plaintiffs for a decree of ejectment without notice as contemplated under section 106 of the Transfer of Property Act is misconceived. The second to fifth plaintiffs, being entitled to 5/6th share in the larger property as identified under the sale deed dated 11.11.2010, would step into the shoes of the first plaintiff (and the other co-owner) as contemplated under section 109 of the Transfer of Property Act and would be entitled to continue the proceedings initiated for ejectment after termination as contemplated under section 106 read with section 111(h) of the Transfer of Property Act. It is also emphasized that termination notice need not have been issued to the second defendant who is not the tenant in possession of the subject premises.
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37. In continuation of the aforesaid submission, the learned counsel relying upon Exhibit P8, the lease agreements between the first plaintiff and the first defendant, submit that it is specifically agreed that the first defendant could sublet the subject premises, or part with the possession thereof, in favour of any of his four sons, including the second defendant. If the second defendant and the other sons as partners of the different firms, which are admittedly sister concerns, are in possession of the subject premises, they are in possession only as a sub- tenants. It is settled law that a sub-tenant could only be a proper party and not a necessary party and a suit for ejectment could be maintained only against the tenant after issuance of notice of termination to the tenant as contemplated under the aforesaid provisions of the Transfer of Property Act. As such, the defendants cannot challenge the impugned judgement either on the ground that all the 50 sons of the first defendant/their partnership firms have not been made as parties or that no notice of termination is issued to them. The learned counsel rely upon the decision of the Hon'ble Supreme Court in Balavant N Viswamitra and others v. Yadav Sadashiv Mule13 in this regard.
38. The learned counsel insofar as the claim by Mrs. Paulin and her children and the pending suit in OS No.26185/2009, submit that Mrs. Paulin and children have filed applications to implead themselves in these suits. These applications are rejected, and the order of rejection is challenged before this Court in writ petition Nos.26778-786 of 2009. This Court by order dated 07.09.2009 has confirmed the rejection of the application for their impleadment observing that the different questions urged by them would have to be decided in the suit for partition 13 (2004) 8 Supreme Court Cases 706 51 given the undisputed fact that they did not place on record any document to demonstrate that they are parties to the lease agreements and that they had received rents from the defendants. This Court has also observed that the judgement in the present proceedings could not affect their rights. The second to fifth plaintiffs are permitted to come on record as co-plaintiffs. The second defendant has challenged such order before this Court in WP Nos. 6487/2011 and 6488/2011. This Court has confirmed such order permitting impleadment. The learned counsel submit that these orders permitting impleadment of the second to fifth plaintiffs and the refusal of permission to Mrs. Paulin and her children to implead themselves have attained finality, and the same cannot be re-agitated because such orders operate as constructive res-judicata. They rely upon the decision of this Court in Dattatraya v. Srinivasa Bhat Thammanna14 14 ILR 1985 Karnataka 1946 52
39. The learned counsel submit that the defendants have contended that they, after the demise of Mr. P.S.Padmanabhaiah, the undisputed owner/landlord, have paid further advances for the subject premises and rents to the first plaintiff, and because they have admitted paying rents as well as advance, they are estopped from denying that the first plaintiff is the landlord. The learned counsel rely upon the decision of this Court in Associated Traders and Engineers Ltd and another v. J Nagaraj and others15 in support of their submissions on estoppel. They further submit that if the defendants cannot deny that the first plaintiff is the landlord, they cannot resist the suits on any of the propositions canvassed on their behalf.
40. The learned counsel submit that the submissions by Sri Shekar Shetty that the use of the subject premises for godown cannot be construed as 15 ILR 2005 Karnataka 3383 53 commercial use has been considered by this Court in K A Hameed v. Jabbar Baig16, and it has been held that for the purposes of section 2(3)(g) of the Karnataka Rent Act, the test is whether the premises is used for non-residential purposes and if the premises is used for non-residential purposes and if it measures more than 14 Sq. mtrs the exclusion under the Karnataka Rent Act would not operate and the appropriate remedy for the landlord is to terminate the lease as contemplated under section 106 of the Transfer of Property Act. Therefore, the argument that the use of the schedule premises for godown purposes must be construed as non-commercial (residential purposes) is wholly misconceived.
41. The learned counsel also submits that the evidence on record is that the first defendant, under the terms of the lease agreement (Exhibit P8), could put the 16 2014 (2) KCCR 1095 54 subject premises either to residential or business purposes, and the first defendant, along with his sons as partners of the different firms, is using the subject premises for non- residential, godown, purposes. Therefore, the defendants cannot rely upon the decision of the Hon'ble Supreme Court in Nilesh Nandkumar Shah v. Sikander Shah supra. They finally submit that the impugned judgement does not suffer from any legal infirmity except insofar as the trial Court has erroneously concluded that the second to fifth plaintiffs would not be entitled for possession till the suit for partition filed by Mrs. Paulin and children are disposed of. Therefore, the civil revision petitions filed by the defendants in CRP Nos. 181/14, 182/14, 224/14 and 225/14 are liable to be dismissed, and the civil revision petitions filed by the second to fifth plaintiffs in CRP No.255/15 and 256/15 be allowed.
42. The different submissions made by the learned counsel for the parties will have to be considered within the 55 limits of the contours of jurisdiction of this Court under section 115 of the Code of Civil Procedure,1908 (for short 'CPC'). It is settled law that a High Court shall exercise the power of revision under section 115 of CPC subject to the conditions stipulated therein, i.e., for a High Court to intervene under Section 115 of CPC, a Court subordinate to it must have (a) exercised jurisdiction not vested in it by law, or (b) failed to exercise jurisdiction vested in it by law, or (c) acted in exercise of its jurisdiction 'illegally' or 'with material irregularity. If any of these three conditions are found in the order of a subordinate court, and if such order (made in favour of the person applying for the order) would finally dispose of the proceedings/suit, the High Court may vary or reverse an order under Section 115 of CPC. It is also settled that the expressions 'illegally' and 'with material irregularity' neither refer to errors of fact or of law nor the decision taken by such Court, but refer to the manner in which such decision is taken i.e. if there is a 56 breach of some provision of law or material defects of procedure affecting the ultimate decision17.
43. On behalf of the defendants it is argued that the trial Court could not have granted a decree of ejectment/eviction in exercise of the ordinary jurisdiction as a trial Court and that the decree of ejectment is granted by the trial Court in breach of settled propositions of law. On the other hand, on behalf of the plaintiffs, it is argued that the small Casus Court should have granted a decree of ejectment in favour of the plaintiffs. As such, the questions for decision in these civil revision petitions are as follows:
i. Whether the tenancy of the subject premises are protected under the provisions of the Karnataka Rent Act, 1999 and as such, the trial Court could not have exercised its 17 Tek Singh vs. Shashi Verma 2019 SCC Online sc 168 referring to the earlier decision in DLF Housing and Construction Company Private Limited v. Sarup Singh (1969) 3 SCC 807 57 ordinary jurisdiction to grant a decree for ejectment;
ii. If the trial Court could exercise its ordinary jurisdiction, whether the trial Court's finding that first defendant is in possession of the subject premises as a tenant under the first plaintiff and that the first plaintiff has lawfully terminated such lease is contrary to the settled principles of law; and iii. Whether the trial Court's judgement requires to be modified as regards the second to fifth plaintiffs being entitled for decree for ejectment and delivery of possession.
44. It is argued that the tenancy of the subject premises is protected and the eviction of from the subject premises could be only under the provisions of the Karnataka Rent Act and as such, the plaintiffs could not have filed the suit for ejectment asserting that the tenancy has been terminated as contemplated under section 106 58 and 111(h) of the Transfer of Property Act. This argument is premised in the following submissions:
• The lease of the subject premises is under an integrated lease. The evidence on record is that the first floor premises is definitely being used for residential purposes, and even if the second floor premises is used as a godown, because of the law declared by the Hon'ble Supreme Court in Nilesh Nandkumar Shah v. Sikander Shah supra, the lease cannot be split up and the protection available to the lease of the first floor premises would also extend to the lease of the second floor premises.
• Even if both the first and second floor premises are used as godowns, because a godown cannot be construed either as a shop or commercial establishment, the use of the subject premises will have to be construed as residential. In 59 which event, because the admitted rent being below Rs.3500/- per month, the provisions of 2(3)(e) of the Karnataka Rent Act would apply and the tenancy would be protected.
45. The undisputed facts are that the subject premises were leased during the lifetime of the first plaintiff's father, Sri P.S. Padmanabhaiah in the 1980s. The monthly rent for these premises were paid by cheque to Sri P.S. Padmanabhaiah and he has issued Rental Receipts (Exhibit D3 to D818 in SC No. 15298/2011 and Exhibit D1 to D719 in SC No.15299/2011) acknowledging the receipt of the rents. After the demise of Sri P. S. Padmanabhaiah, the first plaintiff initiated proceedings in HRC No. 1269/1996 seeking eviction of the second defendant 18 These receipts are issued in the name of M/s Hitendra sales Corporation.
19 These receipts in the name of Mangalam Chand Hitendra Kumar and Bros.
60describing him as the proprietor of M/s Hitendra Sales Corporation from both the premises viz., the subject premises. The proceeding in HRC No. 1269/1996 is dismissed for default, and at the time when this proceeding was dismissed for default, the first plaintiff and the second defendant entered into some kind of an arrangement.
46. However, there is dichotomy as regards the terms of the aforesaid arrangement. The first plaintiff contends that in terms of such arrangement, the second defendant surrendered possession of the subject premises and he has granted lease of the subject premises to the first defendant under separate lease agreements as per Exhibit P8. The first defendant is permitted to sublease the subject premises to anyone of his sons and use the subject premises either for residential or business purposes. The first defendant along with the sons, including the second defendant, is using the schedule premises as godowns. The defendants contend that the arrangement was only 61 regarding the additional advances that the second defendant had to pay. It is asserted by the second defendant that he has paid an additional advance of Rs.1,50,000/- and Rs.1,25,000/- respectively for the subject premises as part of this arrangement and he has continued in possession as a tenant. The subject premises are being used for residential purposes just as prior to this arrangement.
47. The trial Court has opined that the defendants are using the subject premises as godowns for their businesses relying upon the photographs (Exhibits P17 and P18 in SC No. 15298/2011 and Exhibit P19 and P20 in SC No. 15299/2011) of the subject premises, the Communication with the Commercial Tax Department (marked as Exhibits in both SC No.15298/2011 and SC No. 15299/2011) and the oral evidence as regards the business being run by the defendants and their family members in different names but as sister concerns. The trial Court has 62 opined that therefore it has jurisdiction to try the suit. It has not been pointed out why the trial Court's finding in this regard is either illegal or materially irregular.
48. This Court on perusal of the photographs and the aforesaid Correspondences with the Commercial Tax Department is of the view that the trial Court is justified in its finding that the subject premises are being as godowns. Further, it is seen that Sri P.S. Padmanabhaiah has issued Rent Receipts favouring the business enterprises owned by the defendants' family members and the terms of the lease agreements (Exhibit P8) are also that the defendants could use the subject premises either for residential or business purposes. There is no acceptable evidence except the self- serving oral testimony of the family members and some interested persons to justify a conclusion that the subject premises are used as residences. In the light of these circumstances it would only be reasonable to conclude, as 63 done by the trial Court, that the subject premises are used as godowns. If it is reasonably established that the subject premises are being used as godowns, the submissions that either first floor premises or both the first and second floor premises are being used as residences cannot be accepted. In the facts and circumstances of the case, the decision of the Hon'ble Supreme Court in Nilesh Nandkumar Shah v. Sikander Shah supra also would not apply. The defendants cannot succeed in their challenge to the impugned judgment on this ground.
49. The submission that premises when used as godowns cannot be construed as either Shop or Commercial Establishment for the purposes of the Karnataka Rent Act has been considered by this Court in K A Hameed v. Jabbar Baig supra, and it has been held as follows:
"Section 2(3)(g) is an exemption provision which has an exception clause in-built. A careful perusal of Clause (g) would indicate 64 that provisions of the Rent Act would be applicable to the premises having a plinth area not exceeding 14 square meters used for commercial purpose. In other words, it means provisions of the Act would be applicable to smaller premises which has an area less than 14 square meters. All other non-residential premises other than premises having plinth area of more than 14 square meters would not fall within the purview of the Rent Act. Clause (g) uses both expression 'non-residential' and 'commercial'. The first part of clause (g) uses the expression 'non- residential purpose' and in the second part expression used is 'commercial purpose'. The Karnataka Rent Act does not define 'commercial purpose' or 'commercial building'. In view of the same, the meaning should be found out with reference to the provisions of the Act and the object which the Act seeks to achieve. Hence, it would not be proper to refer to the meaning given to the expression in other statutes. The meaning of the word must be gathered from the context in which it is used. It would not 65 be sound principle of construction to interpret expression used in one Act with reference to the other used in another Act. If the premises is used for non-residential purposes, it will be covered by the earlier part of clause (g) or in the event of premises being used for commercial purpose and it measures more than 14 square meters it would be covered under later part of clause
(g) and in either of these two eventualities provisions of Rent Act would not be applicable."
This enunciation, which could only be reiterated by this Court, negates the submission that when premises are used as godowns it can neither be called shops or commercial establishments and therefore, the use of the premises must be construed as residential. With the finding that the subject premises are used as godowns and in the light of the undisputed fact that the measurements of each of the premises is more than 14 square meters, the exemption under section 2(3)(g) of the Karnataka Rent Act 66 would not be available and the tenancy of the subject premises would not be protected. As such, the submission that the plaintiffs could not have filed suits for ejectment and trial Court did not have the jurisdiction to try such suits cannot be accepted. The first question is answered accordingly in favour of the plaintiffs.
50. It is argued on behalf of the defendants that the trial Court's judgement is in violation of certain settled propositions of law and therefore an erroneous exercise of jurisdiction in granting the decree. The submission is buttressed by the canvas that the first plaintiff has issued termination notice dated 06.09.2006 only to the first defendant despite the fact that the second defendant is in possession of the subject premises as a tenant. It must be observed that there is no serious dispute that the first plaintiff has indeed issued notice dated 06.09.2006 to the first plaintiff.
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51. It has already been observed supra that it is undisputed that after the initiation of the proceeding in HRC No. 1269/1996 there was an oral arrangement between the first plaintiff and the second defendant, but the difference between the first plaintiff and the second defendant is as regards the terms of such settlement. The difference in terms set up respectively by the first plaintiff and the second defendant are also detailed. The second defendant specifically contends that such oral arrangement was only for payment of additional deposits and he has accordingly paid a sum of Rs.1,50,000/- and Rs.1,25,000/- as additional deposits respectively for the first and the second floor premises. The second defendant has also relied upon certain agreements in writing in this regard, but the second defendant has not produced any agreement despite stating that such agreements could be produced. 68
52. The second defendant also makes an improvement in his evidence for the first time in contending that he was paying rents to the first plaintiff for the subject premises as a tenant until the year 2006 and for the years from 2007-08 he has tendered rents to Mrs. Paulin. Apart from the fact that this has not been stated in the pleadings and is stated for the first time in the evidence, the second defendant has not produced any document to show that there was a demand from Mrs. Paulin for payment of rents or in fact such rents are paid to Mrs. Paulin. The failure to produce the purported agreement between the first plaintiff and the second defendant for continuation of the lease and payment of additional deposits and the embellishment in evidence creates serious doubts about the case set up by the second defendant that he is in possession of the subject premises as tenant.
53. The Second defendant has relied upon acknowledgements (Ex. D18 in SC No. 15298/2011 and Ex. 69 D17 in SC No. 15299/2011) executed by the first plaintiff acknowledging receipt of additional advance. These acknowledgements have been executed by the first plaintiff in favour of the first defendant. An attempt is made to suggest that these acknowledgements (and the lease agreements as per Exhibit P8) have been executed by the first plaintiff in favour of the first defendant for the different premises in the first and the second floor of the building and not in respect of the subject premises. But there is no evidence to conclude that one set of premises in the first/second floor of the building is leased out to the first defendant and another set of premises in the first and the second floors of the building viz., the subject premises are leased in favour of the first defendant. Significantly, the first plaintiff has been steadfast in his evidence that the Exhibits as per Exhibit P8 and the acknowledgements referred to above pertain to the subject premises. The second defendant's unsubstantiated effort and the first 70 plaintiff's steadfast insistence as aforesaid further weaken the second defendant's case.
54. On the other hand, the power of attorney of the first defendant who is examined as DW5 has admitted lease agreements as per Exhibit P8. Though the second defendant has refused to identify the signature of the first defendant in the aforesaid lease agreements, he has admitted that during the pendency of the proceedings he has come to know about the lease agreements executed by his father, the first defendant. These circumstances put the lease agreements (as per Exhibit - P8) beyond the pale of dispute. There is also a feeble effort to setup the defense of discord between the first defendant and the second defendant with each of the witnesses examined on behalf of the defendants asserting that the relationship between the first and the second defendant is strained. But, these witnesses are categorical that all the family members are engaged in the same business as partners of different firms, 71 which they treat as sister concerns, and there is no dispute between them as regards the same. These witnesses have also denied that the defendants and the family members reside in premises different from the subject premises, but are categorical that the family members reside together. They say the family members, including the first and the second defendant, reside together in the subject premises. These circumstances shatter the façade of defense that the first defendant is in possession of the subject premises as a tenant and the present suits are collusive .
55. In the light of this discussion, this Court is of the considered opinion that there is no infirmity in the trial Court concluding that the plaintiffs are able to establish landlord- tenant relationship between the first plaintiff and the first defendant as regards the subject premises. As such, the first of the submissions on behalf of the defendants as regards an alleged infirmity in the issuance 72 of legal notices dated 06.09.2006 only to the second defendant cannot be accepted.
56. It is canvassed that the first plaintiff lost locus to prosecute the suits with the sale of the subject premises as part of 5/6th share in the larger property under the sale deed dated 11.11.2010. Therefore, the suit could not have been decreed on the basis of the legal notice dated 06.09.2006. Further, relying upon the settled proposition that a lease is determined only with a notice as required under section 111(h) and contemplated under section 106 of the Transfer of Property Act, it is canvassed that even if the second to fifth plaintiffs are successors in interest under the first plaintiff, they cannot seek ejectment unless they issue separate notice terminating the tenancy and they cannot take advantage of the notices issued by the first plaintiff.
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57. The Hon'ble Supreme Court in its decision in Vasantkumar Radhakisan Vohra v. Board of Trustees of the Port of Bombay and another20, while considering the question whether legal notice issued by an owner of the property determining the lease of an immovable property would enure to the advantage of the successor in interest of such owner when the change in ownership is brought about by change in law, has referred with approval the proposition that when a lessor gives notice to quit and then assigns his interest to another the assignee can take advantage of such notice. The relevant paragraphs read as follows:
"Undoubtedly, by issuance of notice to quit automatically the right created thereunder, namely, cessation of the lease, does not become effective till the period prescribed in the notice or in the statute i.e. Sec. 106 expires. On expiry thereof the lease becomes inoperative and the lessor 20 (1991) 1 Supreme Court Cases 761 74 acquires right to have the tenant ejected. When he fails to deliver vacant possession, the lessor would be entitled to have the tenant ejected and taken possession in due process of law. The successor in interest whether acquires these rights and the rights acquired by lessor would enure for his benefit is the crucial question.
In Halsbury's Laws of England, 4th Edition, Vol. 27, paragraph 193 discussed the right accrued to the transferee of the benefit of the notice to quit issued by the predecessor in title thus:
"The notice when once given enures for the benefit of the successors in title of the landlord or tenant giving it."
Hill and Redman in "Law of Landlord and Tenant", 17th Edition, Vol. I, at page 488, paragraph 405 have stated to the similar fact thus:
"The notice when once given enures for the benefit of the successor in title of the landlord or tenant giving it."
In Mulla's commentary on the Transfer of Property Act, 6th Edition, at page 676 it is also stated thus:
"Notice enures for the benefit of the successor in title of the lessor or lessee giving it."
In Chitaley's Transfer Property Act, 4th Edn., 1969:, Vol. III, Note 35, it is stated thus:
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"Where the lessor gives notice to quit and then assigns his interest to another the assignee can take advantage of the notice."
In N.P.K. Raman Menon v. Collector of Malabar, AIR,1924 Madras 908 a Division Bench of the Madras High Court held that:, "English cases recognise that the person who is the landlord and entitled to possession, on the date of the notice to quit, is the proper person to give the notice and :that an assignee within the currency of that notice can take advan- tage of the notice sent by his assignor and rely upon it, when he brings a suit for recovering possession."
The Hon'ble Supreme Court has also held that the decision by a Division Bench of this Court in M Gurmurthappa v. Chikamunisamappa that the successor in interest is not entitled to avail of the notice to quit given by the original landlord as not good law. In the light of this exposition by the Hon'ble Supreme Court neither of the submissions i.e., the first plaintiff has lost locus and the termination notices dated 06.09.2006 issued by the first plaintiff cannot enure to the advantage of the second to fifth plaintiffs will have to fail.
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58. There is also another dimension on the question of issuance of notice to the second defendant. It has been found that the first plaintiff is able to establish grant of lease of the subject premises to the first defendant inter alia on the basis of the respective lease agreements marked as per Exhibit P8 in both the suits. The first plaintiff relies upon the terms in these lease agreements to assert that there is prohibition against sub-tenancy except insofar as the first defendant parting with possession of the subject premises in favour of any of his four sons. It is contended based on this term that, at the most the second defendant would only be a sub-tenant. When the lease in favour of the first defendant is established and the lease agreements are also established and if indeed any rent is paid by the second defendant or by any firm in which is a partner, it will have to be held that there is no privity of contract with the second defendant and at the most he would only be a sub-tenant.
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59. It is settled law that a sub-tenant need not even be made a party to the eviction/ejection proceedings much less notice of termination be issued to the sub-tenant. It would be useful to refer to the proposition exposited by the Hon'ble Supreme Court in Balvant N. Viswamitra and others vs. Yadav Sadashiv Mule21 The Hon'ble Supreme Court has held as follows:
"In M/s.Importers and Manufacturers Ltd. v. Pheroze Framroze Taraporewala and Ors., AIR (1953) SC 73 this Court held that in a suit for possession by a landlord against a tenant, sub-
tenant is merely a proper party and not a necessary party.
In Rupchand Gupta v. Raghvanshi (Pvt.) Ltd. and Another, AIR (1964) SC 1889 an ex parte decree was passed in favour of the landlord and against the tenant. An application for setting aside the decree was made by the sub- tenant by invoking the provisions of Order IX, Rule 13 of 21 2004) 8 Supreme Court Cases 706 78 the Code of Civil Procedure, 1908, inter alia contending that the decree was collusive inasmuch as the sub-tenant was not joined as party defendant. The decree was, therefore, liable to be set aside. Repelling the contention, this Court observed:
"(i) is quite clear that the law does not require that the sub-lessee need be made a party. It has been rightly pointed out by the High Court that in all cases where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not implead the sub-lessee as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub-lessee.
This may act harshly on the sub-
lessee; but this is a position well understood by him when he took the sub- lease. The law allows this and so the omission cannot be said to be an improper act."
60. This takes us to the next submission on behalf of the defendants based on the proceedings for partition pending in OS No. 26185/2009 filed by Mrs. Paulin and 79 children as the legal heirs of one of the sons of Mr. P S Padmanabhaiah. The import of the submission in this regard is that the first plaintiff cannot, in the light of the proceedings in OS No. 26185/2009, claim exclusive ownership of the subject premises. As such, the first plaintiff could not have on his own accord issued legal notices for termination of lease or commenced proceedings, nor can the second to fifth plaintiffs claim to be successors in interest under the first plaintiffs.
61. However, the undisputed facts are that Sri P.S. Padmanabhaiah was the undisputed owner of the subject premises. The first plaintiff is one of his legal heirs and the other legal heirs are his wife, four daughters and the legal representatives of the now deceased younger son. The plaintiffs' case is that the entire property is bequeathed to the first plaintiff with life interest to his mother. The sisters have accepted such bequeath without litigation. The dispute is by the Mrs. Pauli and her children, the legal 80 representatives of the now deceased younger son, who claim 1/6th undivided share in the larger property. It is indisputable from the above circumstances that the first plaintiff would in any event be one of the co-owners. The applications for impleadment filed by Mrs. Paulin and her children have been rejected, and also confirmed in writ proceedings holding that they are not able to place on record any document to establish that they were parties to the lease agreements or that they have received any rents, and that their rights will not be prejudiced by the outcome of the present proceedings if they succeed in establishing that they would be entitled to 1/6th share as asserted by them. The challenge by the defendants will have to be considered in the light of these undisputed circumstances and the settled law.
62. It is settled that a Co-owner would be entitled to initiate proceedings for ejectment/eviction, and the consent of the other co-owners would be assumed in law unless the 81 contrary is shown. As regards a co-owner's right to initiate proceedings for ejectment/eviction after issuance of termination of notice, a useful reference could be made to the decision of the Hon'ble Supreme Court in India Umbrella Manufacturing Co. vs. Bhagabandei Agarwalla22. The Hon'ble Supreme Court has held as follows:
"It is well settled that one of the co- owners can file a suit for eviction of a tenant in the property generally owned by the co-owners. (See: Sri Ram Pasricha Vs. Jagannath & Ors., (1976) 4 SCC 184; Dhannalal Vs. Kalawatibai & Ors., (2002) 6 SCC 16, para
25). This principle is based on the doctrine of agency. One co-owner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other co-owners. The consent of other co- owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject 22 (2004) 3 Supreme Court Cases 178 82 the tenant and the suit was filed in spite of their disagreement."
The defendants cannot succeed in their challenge to the impugned judgement even on this ground. Therefore, it will have to be perforce concluded that the trial Court has exercised its jurisdiction legally and without any material irregularity. The second question is answered accordingly.
63. It is obvious from the above it would be just and reasonable to conclude that the second to fifth plaintiffs, who have purchased 5/6th undivided share in the larger property including the subject premises under the sale deed dated 11.11.2010, would be entitled, especially when there is no dispute by the first plaintiff, to a decree for ejectment in their favour on the condition that they refund the admitted deposits paid as per the acknowledgement executed by the first plaintiff subject to deducting the rental arrears based on the admitted monthly rentals for 83 the period between the date of the suit till the date the possession is handed over. Otherwise, inequitably, the second to fifth plaintiffs, who would otherwise be entitled for a decree in their favour as aforesaid circumstances, will be driven to further proceedings. For the foregoing, the following:
ORDER:
(i) The civil Revision Petition in CRP No. 224/2014 and CRP No. 225 of 2014 filed by the first defendant in 15298/2011and in SC No. 15299/2011 on the file of the XVII Additional Judge, Court of Small Causes Mayo Hall Unit, Bengaluru impugning the judgements dated 15.02.2014 are dismissed.
(ii) The civil Revision Petition in CRP No.181/2014 and 182/of 2014 filed by the second defendant in 15298/2011 and in SC No. 15299/2011 on the file of the XVII Additional Judge, Court of Small Causes Mayo Hall Unit, Bengaluru impugning the 84 judgements dated 15.02.2014 in SC No.15298/2011 are dismissed.
(iii) The CRP No. 255/2015 and CRP No. 256/2015 filed by the second to fifth plaintiffs in 15298/2011and in SC No. 15299/2011 on the file of the XVII Additional Judge, Court of Small Causes Mayo Hall Unit, Bengaluru are disposed of modifying the judgment and decree dated 15.02.2014 directing the defendants to handover vacant possession of the subject premises to the second to fifth plaintiffs subject to the condition that they refund the respective deposits paid after deducting the rental arrears as directed by the impugned judgement.
(iv) No costs.
SD/-
JUDGE
nv*