Bangalore District Court
Mrs. Vanitha. P vs Mrs. Girija R on 18 January, 2020
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH73)
Present:
Sri.AbdulRahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 18th day of January, 2020.
O.S.No.26120/2019
Plaintiff: Mrs. Vanitha. P,
W/o S Pradeep Kumar,
Aged about 37 years,
R/at No.172, 2nd Floor,
Ojili Meadows, Seppings Road,
Bengaluru560001.
[By Sri. Janardhana Advocate]
V/s
2 OS No.26120/2019
Defendants: 1. Mrs. Girija R,
W/o Nanda Kumar,
Aged about 36 years,
2. Mr. Nanda Kumar,
Father's name not known to the
Plaintiff,
Aged about 43 years,
Both are R/at No.933, 23rd Main,
25th Cross, HSR Layout,
SectorII, Bengaluru.
[Defendants Exparte]
26.08.2019
Date of Institution of the suit
Nature of the (Suit or pronote, suit
for declaration and possession, Ejectment Suit
suit for injunction, etc.)
Date of the commencement of 04.12.2019
recording of the Evidence.
Date on which the Judgment was
18.01.2020
pronounced.
Year/s Month/s Day/s
Total duration 00 04 22
LXXII ADDL.CITY CIVIL AND SESSIONS
JUDGE,
Mayohall Unit: Bengaluru.
3 OS No.26120/2019
JUDGMENT
This suit is filed by the Plaintiff against the Defendants for the relief of eviction of Defendants from the Suit Schedule Property and for damages.
2. Facts of the Plaintiff's case are as under:
It is the case of the Plaintiff that, she is the absolute owner of the entire property bearing BBMP Katha No.666 situate at 28th Main, 100feet Road, 2nd stage, 1st Phase, BTM Layout, Bengaluru, consisting of basement, ground and first floor. It consists of a nonresidential complex, the Plaintiff has let out shop premises No.7 to the Defendants under the rental Agreement dtd.17.01.2017 on a monthly rent of Rs.27,000/ and now the Defendants are paying Rs.30,000/, which was for a period of 11months. After completion of the said period, the Plaintiff requested the Defendants on several occasions to vacate the premises, but they went on postponing the same for one or the other reasons. Apart from the same, the Defendants are chronic defaulters in payment of monthly rents as 4 OS No.26120/2019 they have not paid rent for six months, Inspite of repeated requests made to them. The Plaintiff has got adjusted the arrears of rent towards the security deposit amount of Rs.2,00,000/paid by the Defendants, at the time of their induction. Since the Plaintiff was not interested in continuing the tenancy of the Defendants, she has terminated the same by issuing a notice to them on 20.07.2019, which is received by them on 22.07.2019, calling upon the Defendants to vacate the said premises, else, they will be liable to pay the damages @ Rs.60,000/ per month. Inspite of termination of the tenancy, the Defendants have not vacated the premises, so the Plaintiff is constrained to file the present suit.
3. Suit Summons were issued to the Defendants by RPAD. Due to absence of the Defendants, they were placed 'Exparte' on 28.11.2019.
4. The Plaintiff inorder to prove her case, got herself examined as PW1 and has got marked 06 documents as Ex.P.1 to Ex.P.6 and Ex.P6(A) to 5 OS No.26120/2019 Ex.P6(D). Since the Defendants were placed Exparte cross examination of PW.1 by Defendants, is taken as NIL on 04.12.2019.
5. Heard the arguments of the Learned Counsel for the Plaintiff. The Learned Counsel for the Plaintiff has placed his reliance on two decisions 1) 1995 (4) Kar. L.J. 399; in the case of Bheemanagowda (Dead) by Lrs., V/s Syed Murtuzakhadri Sujjadanasheen and Another and 2) AIR 2006 SC 147; in the case of Mohinder Prasad Jain V/s Manohar Lal Jain.
6. On the basis of the above pleadings, following Points are framed as under:
POINTS
1. Does the Plaintiff proves that, she is the owner of the Suit Schedule Property?
2. Does the Plaintiff proves that, she has inducted the Defendants in the Suit Schedule Property on a monthly rental basis, as per the rental Agreement dtd.17.01.2017?6 OS No.26120/2019
3. Does the Plaintiff proves that, she has terminated the monthly tenancy of the Defendants, as contended by her, in Para No.4 of the Suit Plaint?
4. Does the Plaintiff proves that, she is entitle for the relief of Possession of the Suit Schedule Property, by vacating the Defendants, from it?
5. Does the Plaintiff proves that, the Defendants are in arrears of rent and she is entitled for damages, as claimed by her, in the Suit Plaint?
6. What decree or order?
7. My findings on the above said points are as under:
Point No.1: Partly in the Affirmative;
Point No.2: In the Affirmative;
Point No.3: In the Affirmative;
Point No.4: In the Affirmative;
Point No.5: In the Affirmative;
Point No.6: As per final order for the
following
7 OS No.26120/2019
:R E A S O N S:
8. POINT NO. 1:
The Plaintiff contends that, she is the owner of the property bearing katha No.666, situated at 28th Main, 100feet road, 2nd Stage, 1st Phase, BTM Layout, Bengaluru, in which the Suit Schedule Propertyshop bearing No.7, is located, as she has received the said property under the Partition Deed dtd.02.08.2014.
9. The Learned Counsel for the Plaintiff would contend that, the Plaintiff has received the Suit Schedule Property under the Partition Deed dtd.02.08.2014. The Plaintiff has produced the Original Registered Partition Deed dtd.02.08.2014 at Ex.P.1. As per this document, it is seen that, Partition has taken place inbetween the mother of the Plaintiff Jaya R.C., who is shown as First Party; the sister of the Plaintiff Kavitha Kalaivani, who is shown as Second Party; the Plaintiff is shown as Third Party and the brother of the Plaintiff R. Karthik Rajan is 8 OS No.26120/2019 shown as the Fourth Party and the property bearing Katha No.666, Corresponding PID NO.6527666, situated at BTM 2nd Stage, 1st Phase, Ward No.65, Bengaluru, is shown as Item No.2 in the said Partition Deed. As per the said Partition Deed, the said Item No.2 has fallen to the share of the Plaintiff and her sister Kavitha Kalaivaniwho is the Second Party. There is a rectial in the said Partition Deed that, the said site was acquired by the father of the Plaintiff by name C. Ravi, from BDA and the said BDA authorities have issued a Possession Certificate PR.NO.131/8990 dtd.03.03.1990, infavour of the father of the Plaintiff by delivering the Possession of the said property and in pursuance of the same, the BDA authorities have executed a Registered Sale Deed inrespect of the said property, infavour of the Plaintiff on 05.04.1989. Further this document also evidences that, the Plaintiff and her sister Kavitha Kalaivani were put into actual Possession of the said property on the date of Partition.9 OS No.26120/2019
The Plaintiff has produced katha Certificate and katha extract pertaining to the Suit Schedule Property at Ex.P.2 and Ex.P.3, respectively. As per these documents, it is seen that the name of the father of the Plaintiff Ravi C. is shown to be the kathedar and owner of the said property.
The Plaintiff has produced the property tax receipt pertaining to the property bearing Katha No.666, BTM 2nd Stage, 1st Phase, at Ex.P.4. As per this document, it is seen that, Plaintiff and her sister kavitha Kalaivani is shown to be the owners of the said property and they are paying tax to the BBMP authorities, inrespect of the said property.
Thus, as per the above documentary evidence, it can be said that, originally the property bearing katha No.666 came to be allotted to Ravi C. the father of the Plaintiff and Ravi C. died on 02.12.2011 and after his death, all his properties including the property bearing katha No.666, came to be Partitioned inbetween his heirs, as per the Partition Deed dtd.02.08.2014. And as per the said Partition, 10 OS No.26120/2019 the Plaintiff and her sister Kavitha Kalaivani became the owner of the property bearing katha No.666.
Thus, the Plaintiff has proved that, she has become the owner of the property bearing katha No.666, wherein the Suit Schedule Property is located, alongwith her sister Kavitha Kalaivani. Hence, I answer Point No.1 Partly in the Affirmative.
10. Point No.2:
The Plaintiff contends that she is the owner in Possession of the Suit Schedule Property and she has let the Suit Schedule Property to the Defendants on the monthly tenancy at the rate of Rs.27,000/ per month by executing a Rental Agreement dtd.17.01.2017 and by receiving security deposit amount of Rs.2,00,000/.
The Plaintiff has produced the xerox copy of the rental Agreement dtd.17.01.2017 at Ex.P.5. The Plaintiff has contended that, the original Rental Agreement dtd.17.01.2017 is with the Defendants and since the Defendants have placed Exparte, she 11 OS No.26120/2019 has relied upon the xerox copy of it. As per Ex.P.5, it is seen that Plaintiff is shown as lessor and the Defendant Nos.1 and 2 are lesseess and the present Suit Schedule Property is shown as the Scheduled Premises under the said document. As per this document, it can be said that, the Plaintiff has entered into a rental Agreement with the Defendants, inrespect of the Suit Schedule Property for a period of 11months commencing from 01.01.2016, wherein the Defendants have agreed to pay monthly rental of Rs.27,000/ per month and has paid security deposit of Rs.2,00,000/, which is interest free deposit. Further this document also evidences that, the Defendants have been inducted in the Suit Schedule Property, which is shown as petition schedule premises under Ex.P.5 on the day of execution of Rental AgreementEx.P.5.
Thus, the Plaintiff has proved that, she has inducted the Defendants in the Suit Schedule Property, by virtue of Rental Agreement dtd.17.01.2017Ex.P.5, on a monthly rent of Rs.27,000/ per month.12 OS No.26120/2019
Hence, I answer Point No.2 in the
Affirmative.
11. POINT No.3:
As per Ex.P.5Rental Agreement, the tenancy inbetween the Plaintiff and the Defendants is a monthly tenancy and the said tenancy is initially for 11months, which has commenced from 01.01.2016 and which will end on 30.11.2016. But the Plaintiff contends that, the Defendants have not vacated on completion of the said period and the Defendants are paying enhanced rent of Rs.30,000/ per month to the Plaintiff.
Further as per Clause5 of the Rental Agreement dtd.17.01.2017Ex.P.5 the Defendants have undertaken to deliver the scheduled premises to the Plaintiff at the expiration or sooner determination of the lease.
Further as per Clause9 of Rental Agreement dtd.17.01.2017Ex.P.5, the parties have agreed to give three months prior notice to each other, for the determination of the tenancy.13 OS No.26120/2019
But as per Ex.P.5, tenancy inbetween the Plaintiff and the Defendants have commenced on 01.01.2016 and the said tenancy was a period of 11months, which has been determined by efflux of time on 30.11.2016.
As per the contentions of the Plaintiff, she has issued notice to the Defendants as per Ex.P.6, dtd.20.07.2019, calling upon them to quit and deliver the vacant possession of the premises, in their possession, within 15days from the date of receipt of the notice. As per Ex.P.6 (c) & Ex.P.6(d) acknowledgements, the said notice Ex.P.6 is received by the Defendant Nos.1 and 2 on 22.07.2019.
On perusal of Ex.P.6, the Plaintiff has terminated the tenancy of the Defendants contending that, they are the willful defaulters and they have failed to pay the rent for six months.
12. As per the contents of Ex.P.5, the period of lease inbetween them, was for a period of 11 months, which has commenced on 01.01.2016 and expires on 30.11.2016. The said lease was a 14 OS No.26120/2019 monthly lease, as the payment of rent was on monthly basis. As per Sec. 106 of Transfer of Property Act, when the lease is a monthly lease, 15 days clear notice of vacating the premises, is to be given to the tenant by the landlord. In this case, the Plaintiff has issued a notice as Ex.P.6 on 20.07.2019 and the Defendants have received the said notice on 22.07.2019 as per Ex.P.6(c)&(d). The Plaintiff has called upon the Defendants to quit and handover the vacant possession of the premises to her, after determination of the lease period i.e., after completion of 15days from the date of receipt of the notice i.e., 15days from 22.07.2019, which comes to 08.08.2019. Under such circumstances, I hold that service of notice is effected in terms of 106 of Transfer of Property Act.
13. Even other wise in this case, notice is not required to be served on the Defendants. It is not in dispute that the Defendants were put in possession as a tenant of the suit schedule property as per Ex.P.5 Rental Agreement dtd.17.01.2017 and the 15 OS No.26120/2019 said lease admittedly was for a period of 11 months. It is also not in dispute that the said period expires on 30.11.2016, Sec.111 of Transfer Property Act, deals with the determination of tenancy, once the tenancy gets determined by virtue of expiry of time, no further determination arises in law. Further it is seen that, as per Ex.P.5, if at all the tenancy is to be extended, it is to be extended by mutual consent of both the parties. By issuing notice under Sec.106 of T.P. Act, the Plaintiff has made her intention clear, not to continue the said tenancy, so question of continuation of further tenancy does not arise at all.
14. Sec.111 T.P. Act prescribes mode of determination of tenancy. Once the lease determines in any of the modes prescribed U/Sec. 111, the contract comes to an end and there is no question of giving a notice to quit, to such lessee, who continued in possession after determination of lease i.e., after the contract comes to an end, there is no question of terminating the contract over and again by notice. I 16 OS No.26120/2019 find force to my above opinion, as per the decision of the Hon'ble High Court of Karnataka, reported in AIR 2007 KAR.46, wherein it is envisaged that, "In case of termination of tenancy by efflux of time, the question of issuing statutory notice U/Sec.106 does not arise at all".
In the similar circumstances, the Hon'ble Apex Court in the Judgments reported in AIR 1978 SC 1518; AIR 1964 SC 461; AIR 1988 SC 1845; AIR 1981 SC 1550, has held that, "No notice is necessary, in case of the expiry of lease by efflux of time".
From the principles enunciated by the Hon'ble Apex Court as well by the Hon'ble High Court Karnataka in the decisions referred to above and from the reading of the provisions of Sec.111 of T.P. Act, it is clear that, on the expiry of lease period by efflux of time, no further termination of tenancy arises, as no subsisting contract remains after the lease period is over. Hence I answer Point No.3 in the Affirmative.
17 OS No.26120/201915. Point No. 4:
The Plaintiff has shown that she and her sister Kavitha Kalaivani are the owners of the Suit Schedule Property, as they have acquired the same, under the Partition Deed dtd.02.08.2014, as per Ex.P.1. Further the Plaintiff has proved that, she has entered into an Rental Agreement dtd.17.01.2017, with the Defendants, as per Ex.P.5. Further the Plaintiff has shown that, she has terminated the tenancy of the Defendants as per Ex.P.6.
The Learned Counsel for the Plaintiff would contend that, though the Plaintiff and her sister are the owners of the Suit Schedule Property, the Plaintiff can maintain a suit for recovery of Possession against the Defendants. The Learned Counsel for the Plaintiff has placed his reliance on the decision of the Hon'ble High Court of Karnataka, in the case of Bheemanagowda (Dead) by Lrs., V/s Syed Murtuzakhadri Sujjadanasheen and Another, reported in 1995 (4) KLJ 399; wherein it is held that;18 OS No.26120/2019
"Suit by one coowner is maintainable for recovery of Possession of property against the stranger. Decree would enure to all the coowners. Coowner has right, title and interest in every part and parcel of joint property. Coowner cannot be treated as partowner. Coowner becomes partowner only on Partition and Division by metes and bounds".
Further the Learned Counsel for the Plaintiff would placed his reliance on the decision of the Hon'ble Apex Court in the case of Mohinder Prasad Jain V/s Manoharlal Jain, reported in AIR 2006 SC 1471; wherein it is held in Para No.11 that;
"A suit filed by coowner, thus, is maintainable in law. It is not necessary for the coowner to show before initiating the eviction proceedings that he had taken option or consent of the other coowners".
Applying the above principles of law as well as placing the reliance on the decision of the Hon'ble Apex Court in the case of A. Viswanatha Pillai & Others V/s Spl. Tahasildar for Land 19 OS No.26120/2019 Acquisition No.IV & Others reported in AIR 1991 SC 1966, wherein it is held that;
"It is settled law that, one of the coowners can file a suit and recover the property against the strangers and the Decree would enure to all the coowners. It is equally settled law that, no coowner has definite right, title and interest in any particular item or a portion thereof. On the other hand, he has right, title and interest in every part and parcel of the joint property".
As well as placing the reliance on the decision of the Hon'ble Apex Court, in the case of Sri. Ram Pasrich V/s Jagannath & Others, reported in AIR 1976 SC 2335; as well as in the case of Pal Singh V/s Sunder Singh (Dead) By Lrs., & Others; reported in AIR 1989 SC 758; wherein it is held that;
"A coowner is as much an owner of the entire property as a sole owner of the property. He owns several parts of the composite property alongwith others and he cannot be said that he is only a part owner or a fractional owners in the property. Dispossession will undergo 20 OS No.26120/2019 a change only when Partition takes place and division was effected by metes and bounds".
In the instant case, Plaintiff and her sister Kavitha Kalaivani are the joint owners of the Suit Schedule Property as per Ex.P.1 Partition Deed dtd.02.08.2014. No Partition has taken place yet inbetween the Plaintiff and her sister Kavitha Kalaivani, under such circumstances, though the Plaintiff is the coowner, she is to be treated as owner of the entire property, as a sole owner and not the part owner or a fractional owner in the property. The Decree passed in favour of the Plaintiff would enure to all the coowners, in this case, infavour of Smt. Kavitha Kalaivani also.
Having observed so, the Plaintiff has proved that, she is entitle for recovery of Possession of the Suit Schedule Property from the Defendants as she has terminated their tenancy, as required by law, as well as U/Sec. 111 of T.P.Act. Hence, I answer Point No.4 in the Affirmative.
21 OS No.26120/201916. POINT No.5:
The Plaintiff has claimed the relief of damages and arrears of rent.
It is submit that, this Hon'ble Court can hold an enquiry in respect of the mesne profits in the vary suit itself and if there is material evidence on record in order to determine the mesne profits/damages then, this Court can pass necessary orders by issuing necessary directions to the Defendants to pay the mesne profits. I find force to my above view as per the decision of Hon'ble High Court of Karnataka AIR 2007 Kar. 46, wherein it is held that;
"Trial Court has power to determine the mesne profits under the provisions of Order XX Rule 12 (ba), in case the evidence is available on record".
In the similar circumstances, the Hon'ble High Court of Karnataka in the Judgment reported in ILR 2005 Kar 3596, has held that;
"On the basis of evidence available on record, if the mesne profits/damages can be determined, 22 OS No.26120/2019 then the Court has the power to determine it U/Or. XX Rule 12(ba).
16. Order XX Rule 12(ba) reads as under:
Order XX Rule 12. Decree for possession and mesne profits.(1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree
(a)........
(b).........
(ba) for the mesne profits or directing an inquiry as to such mesne profits;
Now, let us see whether there is any evidence in respect of the mesne profits/damages, in the present case. Asper the Rental AgreementEx.P.5, the rent fixed for Rs.27,000/ per month. The Plaintiff has contended that, the Defendants were paying Rs.30,000/ per month, but the Plaintiff has not placed any material on record in this regard.
On the basis of Clause12 of Ex.P.5, which reads as under: "12. On expiry of the lease period, the lease shall be extended only on the option of the Lessor only, provided the 23 OS No.26120/2019 Lessees shall pay an increase of 10% (Ten percent) in the monthly rent of the Schedule Premises to the Lessor, on execution of fresh lease agreement." Thus, as per this clause, the damages can be ascertained. So the Plaintiff is entitle for damages. Hence I answer Point No.5 in the Affirmative.
17. POINT No.6:
Further the Plaintiff contends that, the Defendants have not paid rent for six months, as contended by her in Ex.P.6 notice. The said notice dtd.20.07.2019. The present suit is filed by the Plaintiff on 26.08.2019. So as on the date of filing of the suit, the Defendants were due to pay rent for seven months, which comes to (Rs.27,000/ X 7 Months = Rs.1,48,00000).
The Plaintiff has admitted that she has received Rs.2,00,000/ from the Defendants as interest free refundable security deposit, as can be seen in Clause10 of Ex.P.5.
On deducting the said seven months rental amount from the said security deposit, an amount of 24 OS No.26120/2019 Rs.52,000/ will be still with the Plaintiff, to be paid to the Defendants.
18. Further as per Clause No.12 Ex.P.5, which says that, 10% in the monthly rent of the scheduled premises is to be enhanced and the same is to be enhanced only at the option of the lessor. Considering this yardstick for calculation of damages from the date of filing of this suit till the date of vacating the premises, at present the Defendants are given three months time from today i.e., 18.01.2020, which comes to 18.04.2020, to vacate the premises. So the calculation, as per as damages are concerned will be Rs.29,700/ per month X 8Months= Rs.2,37,600/. Less available balance out of the security deposit, available with the Plaintiff is Rs.52,000/, so the total amount payable by the Defendants to the Plaintiff will be Rs.1,85,600/.
Hence, I proceed to pass the following:
25 OS No.26120/2019ORDER Suit of the Plaintiff is Decreed with costs.
The Defendants are directed to vacate and handover the suit schedule property to the Plaintiff on or before 18.04.2020.
Plaintiff is entitle to receive an amount of Rs. 1,85,600/ on deducting the security deposit amount. Consequently, the Defendants are directed to pay the said amount to the Plaintiff on or before 18.04.2020.
On default, on the part of the Defendants to vacate and deliver the possession as ordered, the Plaintiff will be entitle to receive an amount of Rs.35,000/ per month from
19.04.2020 till the date of receipt of 26 OS No.26120/2019 the possession of the Suit Schedule Property.
In case of default, on the part of the Defendants, to pay the mesne profits to the Plaintiff. Thus, the Plaintiff will be entitle to receive the same with interest at the rate of Rs.10% p.a from 19.04.2020 till its realization.
Draw Decree accordingly.
(Dictated to the Judgment Writer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me in the open court on this the 18th day of January, 2020) [AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) 27 OS No.26120/2019 Schedule Property:
All that piece and parcel of shop bearing No.7, in the 1st floor in the commercial building bearing BBMP Khatha No.666, 28th Main, 100 feet road, II Stage, 1st phase, B.T.M Layout, Bengaluru560076, consisting of one hall and one toilet with electricity water and sanitary connections therein, together with the common right to use the staircase thereon. The composite property is bounded on the;
On the North By : Site No.667,
On the South By : Road,
On the East By : 100 feet Road,
On the West By : Property No.665.
[AbdulRahiman. A.Nandgadi]
LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) 28 OS No.26120/2019 ANNEXURES: LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1: Mrs. Vanitha P. LIST OF EXHIBITS MARKED FOR THE PLAINTIFF:
Ex.P.1: Original registered Partition Deed dtd.02.08.2014 Ex.P.2: Katha certificate.
Ex.P.3: Khatha extract.
Ex.P.4: Tax paid receipt.
Ex.P.5: Xerox copy of rental agreement. Ex.P.6, Ex.P(A) to (D): Legal Notice dtd.20.07.2019, with two postal receipts and two postal acknowledgments.
LIST OF WITNESSES EXAMINED FOR THE DEFENDANTS:
NIL LIST OF EXHIBITS MARKED FOR THE DEFENDANTS:
NIL [AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73)