Karnataka High Court
The Senior Manager vs Smt K A Anitha on 15 October, 2024
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NC: 2024:KHC:41607
RSA No. 2111 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 2111 OF 2023 (RES)
BETWEEN:
THE SENIOR MANAGER
(RETAIL SALES)
INDIAN OIL CORPORATION LIMITED
BANGALORE DIVISIONAL OFFICE
INDIAN OIL BHAVAN
BENGALURU-560027
ALSO AT:
MYSORE DIVISIONAL OFFICE
# L 36/A, 1ST FLOOR, B N ROAD
MYSORE TRADE CENTRE
OPP-KSRTC BUS STAND
MYSORE-570001
Digitally signed ...APPELLANT
by R DEEPA
(BY SRI. GOPALAKRISHNA R., ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA AND:
SMT K A ANITHA
D/O RAMACHANDRAIAH
W/O K V ASHOK KUMAR
R/A INCHARA, 6TH CROSS, ASHOKNAGAR
TUMAKURU TOWN
TUMAKURU DISTRICT-572101
...RESPONDENT
(BY SRI. S. SHIVANANDA, ADVOCATE FOR C/R)
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NC: 2024:KHC:41607
RSA No. 2111 of 2023
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 31.08.2023
PASSED IN RA No.14/2021 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE AND CJM, TUMAKURU, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 10.02.2021, PASSED IN OS No.555/2013 ON THE FILE
OF THE IV ADDITIONAL CIVIL JUDGE AND JMFC, TUMAKURU.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This regular second appeal is filed by the appellant challenging the judgment and decree dated 31.08.2023, passed in R.A.No.14/2021 by the learned Additional Senior Civil Judge and CJM, Tumakuru and the judgment and decree dated 10.02.2021 passed in O.S.No.555/2013 by the learned IV Additional Civil Judge and JMFC, Tumakuru.
2. For convenience, parties are referred to according to their ranking before the trial Court. The appellant is the defendant, and the respondent is the -3- NC: 2024:KHC:41607 RSA No. 2111 of 2023 plaintiff. The plaintiff filed a suit for eviction and recovery of rent in O.S.No.555/2013.
3. The brief facts leading rise to the filing of this appeal are as follows:
It is the case of the plaintiff that she is the absolute owner of the suit schedule property, and she had acquired the same under a registered sale deed dated 06.06.2011.
The khata was transferred in her name. The defendant is the tenant under the plaintiff's donor, i.e., K.V. Ashok Kumar, and after assignment, the plaintiff is entitled to the rent from the defendant. K.V. Ashok Kumar leased the suit schedule property for running the petrol bunk. The suit schedule property is situated in the heart of the city, and the plaintiff is willing to proceed with the construction of a commercial complex, which is required for her bonafide requirement. The plaintiff issued a legal notice dated 25.03.2012 to vacate and hand over the vacant possession of the suit schedule property in favour of the plaintiff on or before 10th April 2012 as the tenancy has -4- NC: 2024:KHC:41607 RSA No. 2111 of 2023 been terminated on 10.04.2012 granting fifteen days as contemplated under Section 106 of The Transfer of Property Act, 1882 (for short 'T.P.Act, 1882). After the termination of the tenancy, the defendant continued to be in possession of the suit schedule property illegally and unauthorizedly. The plaintiff is entitled to damages for the use and occupation of the suit schedule property. Hence, prays to decree the suit.
4. The defendant filed a written statement contending that the suit is not maintainable. The plaintiff has to file a suit for declaration and possession. It is submitted that the suit property was let out to the defendant -Indian Oil Corporation (for short 'IOC'), for a period of 20 years with effect from 15.03.2004 and executed a registered lease deed, and the lease is still in force. On the contrary, it is stated that the defendant is paying rent to K.V. Ashok Kumar, who is the husband of the plaintiff, and he is receiving the rent. It is contended that IOC has invested huge public funds on the outlet to -5- NC: 2024:KHC:41607 RSA No. 2111 of 2023 cater to the citizens of Tumakuru. The defendant has the right to be in possession of the suit property. Hence, on these grounds prays to dismiss the suit.
5. The trial Court, on the basis of the pleadings, framed the relevant issues.
6. The plaintiff to prove his case, plaintiff examined herself as PW.1 and marked five documents as Exs.P1 to 5. The officials of the defendant was examined as DW.1 and produced two documents as Exs.D1 and 2.
The trial Court, after recording the evidence of the parties, hearing on both sides and on the assessment of oral and documentary evidence, dismissed the suit with costs vide judgment dated 10.02.2021. The petitioner, aggrieved by the judgment and decree passed in O.S.No.555/2013, preferred an appeal in R.A.No.14/2021 on the file of Additional Senior Civil Judge and JMFC, Tumakuru.
7. The first Appellate Court framed the relevant points for consideration. The first Appellate Court, on reassessment of oral and documentary evidence placed on -6- NC: 2024:KHC:41607 RSA No. 2111 of 2023 record, allowed the appeal and set aside the judgment and decree passed by the trial Court and consequently decreed the suit of the plaintiff and defendant is allowed to stay till the completion of the lease period of 20 years commencing from 15.03.2004 to 15.03.2024 for vacating the schedule property. Further, the defendant was directed to vacate the schedule property soon after the completion of the lease period. The defendant, aggrieved by the judgment and decree passed in R.A.No.14/2021, filed this regular second appeal.
8. Heard the learned counsel for the defendant.
9. Learned counsel for the defendant submits that the plaintiff has no right to terminate the tenancy before the expiry of the lease period of 20 years from 15.03.2004. He submits that the suit filed by the plaintiff is premature and that the provisions of the Transfer of Property Act are not applicable. Hence, the notice issued under Section 106 of the Transfer of Property Act is invalid. He submits that as per Clause 12 of the lease -7- NC: 2024:KHC:41607 RSA No. 2111 of 2023 deed, conditions stipulated in the lease deed are binding on the plaintiff. He submits that the first Appellate Court committed an error in moulding the relief. Hence, on these grounds prays to allow the appeal.
10. Heard and perused the records and considered the submissions of the learned counsel for the defendant.
11. It is not in dispute that the husband of the plaintiff was the owner of the suit schedule property, and he let out the suit schedule property to the IOC for a period of 20 years and executed a registered sale deed dated 15.03.2004. IOC established a patrol bank in the suit schedule property. The husband of the plaintiff executed a registered gift deed dated 06.06.2011 in favour of the plaintiff. The plaintiff issued a legal notice dated 25.03.2012 terminating the tenancy of the defendant on or before 10.04.2012, granting time for 15 days as contemplated under Section 106 of the Transfer of Property Act. The defendant replied to the legal notice on 14.04.2012 by denying the averments made in the notice.
-8-NC: 2024:KHC:41607 RSA No. 2111 of 2023 The plaintiff to prove that the plaintiff had acquired the title by virtue of the registered gift deed, the plaintiff has produced Ex.P1 is the certified copy of the judgment and decree passed in O.S.No.164/1998, and Ex.P2 is the original gift deed dated 06.06.2011, which discloses that plaintiff's husband gifted the suit schedule property in favour of the plaintiff. Ex.P3 is the Form-3, Ex.P4 is the copy of the legal notice issued to the defendant terminating the tenancy of the defendant on or before 10.04.2012 granting 15 days time to vacate the property.
The defendant replied the legal notice marked as Ex.P5.
12. In rebuttal, an official of the defendant was examined as DW.1, and he reiterated the written statement averments in the examination-in-chief in order to establish that the husband of the plaintiff executed a lease deed for 20 years from 15.03.2024, produced Ex.D2 is the statement of account to establish that the defendants are paying rent to the husband of the plaintiff.
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13. It is not in dispute that the defendant is a tenant and the plaintiff by issuing notice under Section 106 of T.P. Act terminated the tenancy. The main defence of the defendant is that the plaintiff cannot terminate the tenancy before the expiry of the lease period. The trial Court dismissed the suit only on the ground that during the existence of the lease, the plaintiff cannot terminate the suit schedule property. Admittedly, during the pendency of the appeal, the lease period expired by efflux of time. The first Appellate Court taking into consideration that the lease period was up to 15.03.2024 moulded relief.
Admittedly as on today, the plaintiff has not extended the lease period and said lease was expired on 15.03.2024.
The Court can take judicial note of subsequent events. As the lease period has already expired, the defendants have no right to continue in the possession of the suit schedule property. The Division Bench of this court in the case of General Manager IOC Vs District Central Co-operative Bank Ltd, Raichur, held by referring to the judgment of the Hon'ble Apex Court in the case of E. ALBERT MORRIS VS. K.
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NC: 2024:KHC:41607 RSA No. 2111 of 2023 CHANDRASEKARAN AND OTHERS REPORTED IN (2006) 1 SCC 228 in para Nos.17 to 21, which reads as under:
17. In this connection, it is necessary to make a cursory glance of Act 144, 153(1) (i), 154 (2) of Petroleum Act. The scope, ambit and the relevance of the jural relation of lessor and lessee is taken care of by the said legal provisions. Further, the Apex Court in the case of C. Albert Morris Vs. K.Chandrasekaran and others (2006) 1 Supreme Court Cases 228, have considered the boundary line, demarking, the possession over a property of a lessee in possession of the leased property during lease and the one after the termination of lease. Accordingly, the Petroleum Rules do not permit the appellant to claim possession over the property, paving way for carrying on the petroleum business. Thus, the 3rd respondent Deputy Commissioner, Raichur, had the jurisdiction to revoke the 'No Objection Certificate'. However, he ought not to have given emphasis on the lease and its termination. Regard being had to the fact that those observations neither add nor deduct any of rights or duties to either of the parties. Though possession of the appellant- Corporation over the property till termination of tenancy was lawful, but became unlawful after termination of lease.
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NC: 2024:KHC:41607 RSA No. 2111 of 2023
18. The appellant Corporation also contended that as a tenant, it tendered the rents but the respondent bank has not received, it should be remembered even when the period of lease is over, the rents are received, at the most it can only be damages for unlawful occupation of the property. In this, we are guided by the referred at head note of C. ALBERT MORRIS case stated supra.
B. Rent Control and Eviction - Pondicherry Buildings (Lease and Rent Control Act, 1969 (5 of 1969) S. 2(4) - Applicability of the Act Held, applicable to buildings and not to lease of vacant land - A shed put up by the tenant on such land in the present case during the currency of lease held, was not the landlord's building - Hence, did not have the effect of rendering the tenant a statutory tenant so as to entitle him to the protection of the Act Statutory tenant - Who is not
19. The rights of possession in the nature differs during the lease period is quite different from the one after the expiгу.
C. 144 Petroleum Rules, 1976 Rr. 153(1)(i) &
(ii) and "Right to the site" envisaged by R.153(1)(i) for eligibility for licence Sclope and nature of Held, it refers to right to the site on which petroleum is
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NC: 2024:KHC:41607 RSA No. 2111 of 2023 stored and does not include the right to store petroleum on the site - Moreover, one can have a right to something only when there is a lawful origin for that right Hence, where the lease period of the site, on which the lessee licensee had his petrol outlet, expired and the lessor did not renew the lease and required surrender of possession, held, the erstwhile lessee ceased to and required surrender of possession, held, the erstwhile lessee ceased to have any right to the site His continued holding over thereafter, held, could ot be the source of a right to the site - Petroleum Act, 1934 - S. 4 Words and phrases "right to the site" Jurisprudence
- Right Held, it can exist only when it has a lawful origin.
D. Transfer of Property Act, 1882 S. 116 Assent of landlord to lessee's continued holding over after expiry of lease period Inference of Where the landlord filed an eviction suit but withdrew the same by leave of the court to file a fresh suit on the same cause of action, held, such withdrawal of the suit did not amount to assent of the landlord to the continued occupation of the land under cover of a right asserted by the erstwhile lessee.
E. Constitution of India Maintainability Alternative remedy remedies Inapplicability of, on
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NC: 2024:KHC:41607 RSA No. 2111 of 2023 facts Art. 226 Exhaustion of Licence under Petroleum Rules - Landlord terminating lease of the site on which the lessee-licensee had his petrol outlet- Landlord also seeking district authorities to revoke the no-objection certificate granted in favour of the said licensee - During the pendency of the said proceedings, landlord filing a writ petition seeking a direction prohibiting renewal of the licence of the said lessee on the ground of loss of his right to the said site - Since the grant of no-objection certificate does not involve any enquiry into the ownership of the land or into the nature of right claimed by the person seeking no-objection certificate, such a writ petition, held, maintainable Petroleum Rules, 1976, Rr. 144 and 153(1).
20. In the judgment relied upon by us, their Lordships have made meaningful study and assessment of the nature of the possession of ordinary lawful possession and the litigious possession with reference to Petroleum Rules.
Mr. L.N. Rao submitted that the "right" mentioned in Rule 153(1) of the Petroleum Rules will have to be interpreted in a widest manner possible and it is synonymous to the mere right of possession as the provision itself does not classify the nature of right. Thus the same would stand to
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NC: 2024:KHC:41607 RSA No. 2111 of 2023 be differently interpreted than the position contemplated under the Cinematograph Act. He placed reliance on the line of cases starting from M/s East India Hotels wherein this Court categorically asserted that the right to remain in possession would also include the right to carry on the business for which it was allowed and hence the appellant was entitled to renewal of his licence as the same was not validly cancelled by any authority. Our attention was also drawn to the Black's Law Dictionary which explains "right" as something that is due to a person by just claim, legai guarantee, a power privilege or immunity secured by a person by law, a legally enforceable claim, a recognised and protected interest the violation of which is wrong, the interest, claim or ownership that one has in tangible or intangible property. Thus even going by this meaning the right of the appellant is a right of possession as accepted by the Courts below and as laid down by this Court in East India Hotels case the right to possession will and should also include the right to carry on the activity contemplated by such possession. Thus the appellant cannot be said to have lost the right to the site as envisaged by Rule 153(1) of the Petroleum Rules.
We have carefully considered the rival submissions. We have been taken through the
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NC: 2024:KHC:41607 RSA No. 2111 of 2023 pleadings, the annexures, the documents filed along with the appeal and the judgments of the High Court.
Though the arguments of the learned senior counsel appearing for the appellant are attractive on the first blush yet on a careful reconsideration of the same, it has no merits. The judgments cited by the learned senior counsel appearing for the appellant are not only distinguishable on facts but also on law. Much argument was advanced on the receipt of the rent by the landlord after the canceliotion of the lease. The consensus of judicial opinion in this country is that a mere continuance in occupation of the demised premises after the expiry of the lease, notwithstanding the receipt of an amount by the quondam landlord would not create a tenancy so as to confer on the erstwhile tenant the status of tenant or a right to be in possession. In this context, we may refer to judgment of this Court in Raptakos Brett & Co. Ltd. Vs. Ganesh Property, (1998) 7 SCC
184. In paragraph 13 of the said judgment, this Court held as under:
"In view of the aforesaid settled legal position, it must be held that on the expiry of the period of lease, the erstwhile lessee continues in possession because of the law of the land, namely that the original landlord cannot physically throw out such an
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NC: 2024:KHC:41607 RSA No. 2111 of 2023 erstwhile tenant by force. He must get his claim for possession adjudicated by a competent Court as per the relevant provisions of law. The status of an erstwhile tenant has to be treated as a tenant at sufferance akin to a trespasser having no independent right to continue in possession."
In the case of Bhawanji Lakhamshi & Ors. Vs. Himatlal Jamnadas Dani & Ors. (supra), this Court observed as under:
"The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former is a tenant at sufferance in English Law and the latter a tenant holding over or a tenant at will. In view of the concluding words of section 116 of the Transfer of Property Act, a lessee holding over is in a better position than a tenant at will. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplates is that on one side there should be an offer of taking a new
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NC: 2024:KHC:41607 RSA No. 2111 of 2023 lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise. In Kai Khushroo Bezonjee Capadia V. Bai Jerbat Hirjibhoy Warden and another the Federal Court had occasion to consider the question of the nature of the tenancy created under Section 1.6 of the Transfer of Property Act and Mukherjea J. speaking for the majority said, that the tenancy which is created by the holding over" of a lessee or under-lessee is a new tenancy in law even though many of the terms of the old lease might be continued in it, by implication; and that to bring a new tenancy into existence, there must be a bilateral act. It was further held that the assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it. Patanjali Sastri J., in his dissenting judgment, has substantially agreed with the majority as regards the nature of the tenancy created by section 116 of the Transfer of Property Act, and that is evident from the following observations:-
"Turning now to the main point, it will be seen that the section postulates the lessee remaining in
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NC: 2024:KHC:41607 RSA No. 2111 of 2023 possession after the determination of the lease which is conduct indicative, in ordinary circumstances of his desire to continue as a tenant under the lessor and implies a tacit offer to take a new tenancy from the expiration of the old on the same terms so far as they are applicable to the new situation, and when the lessor assents to the lessee so continuing in possession, he tacitly accepts the latter's offer and a fresh tenancy results by the implied agreement of the parties. When, further, the lessee in that situation tenders rent and the lessor accepts it, their conduct raiser more readily and clearly the implication of an agreement between the parties to create a fresh tenancy."
The question then is what is the meaning of the expression "lawful possession". This was considered by this Court in a leading decision on the right to grant licence under the Cinematographic Act and the Madras Cinemas Rules in M.C. Chockalingam Vs. V. Manickavasagam. Rule 13 of the Madras Rules required the licensee in lawful possession, when he had applied for renewal after the expiry of the lease of the licensee. The Court observed thus: (SCC p. 57, para 15).
"Turning to Rule 13, even in the first part if the applicant for the licence is the owner of the property he has to produce before the licensing
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NC: 2024:KHC:41607 RSA No. 2111 of 2023 authority the necessary records not only relating to his ownership but also regarding his possession. It is implicit, that the owner having a title to the property, if he can satisfy the licensing authority with regard to his possession also, will indeed be in lawful possession', although the word 'lawful' is not used in the first part. h is that context that the word 'possession' is even not necessary to be qualified by lawful' in the first part of Rule 13. If, however, the applicant for the licence is not the owner, there is no question of his showing title to the property and the only requirement of the law is to produce to the satisfaction of the authority documentary evidence with regard to his lawful possession of the property. The word 'lawful', therefore, naturally assumes significance in the second part while it was not even necessary in the first part. The fact that after expiry of the lease the tenant will be able to continue in possession of the property by resisting a suit for eviction, does not establish a case in law to answer the requirement of lawful possession of the property within the meaning of Rule 13. Lawful possession cannot be established without the concomitant existence of a lawful relationship between the landlord and the tenant. This relationship cannot be established against the consent of the landlord unless, however, in view of a special law, his consent becomes irrelevant. Lawful possession is
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NC: 2024:KHC:41607 RSA No. 2111 of 2023 not litigious possession and must have some foundation in a legal right to possess the property which cannot be equated with a temporary right to enforce recovery of the property in case a person is wrongfully or forcibly dispossessed from it. This Court in Lallu Yeshwant Singh case had not to consider whether judicial possession in that case was also lawful possession. We are clearly of opinion that juridical possession is possession protected by law against wrongful dispossession but cannot per se always be equated with lawful possession."
When there is clause for extention of the lease, subject to conditions
21. Their Lordships in C. Albert Morris case stated supra, held the principles and the clear situation regarding possession of a property which is the subject matter of lease with reference to rights of the property. Thus on churning the facts, following float:
(i) That the final finding of the learned Deputy Commissioner, Raichur, in canceling the NOC is legal and permissible;
(ii) The Regional Commissioner erred in restoring the NOC to the appellant- Corporation for running petroleum business over the property
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NC: 2024:KHC:41607 RSA No. 2111 of 2023 ignoring the nature of possession of the appellant Corporation;
(iii) The appellant- Corporation may be in possession as long it is evicted there from in accordance with law, as the writ remedy is not available for adjudicating leasehold rights over the property.
14. Admittedly, lease period is over. The defendants have no right to continue in possession of the suit schedule property. The first Appellate Court was justified in passing the impugned judgment. I do not find any illegality or infirmity in the impugned judgment or any substantial question of law that arises for consideration in this appeal.
15. Accordingly, I proceed to pass the following:
ORDER The appeal is dismissed.
The defendant is granted 6 months time to vacate the suit schedule property and hand over the suit schedule property to the plaintiff,
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NC: 2024:KHC:41607 RSA No. 2111 of 2023 failing which, the plaintiff is entitled to recover the possession by executing the judgment.
In view of dismissal of the appeal, pending IAs, do not survive for consideration and accordingly disposed of.
SD/-
(ASHOK S. KINAGI) JUDGE sks