Bangalore District Court
Smt. Nasirunnissa vs Sri. N.A. Venkatesh on 5 August, 2020
GOVERNMENT OF KARNATAKA
Form No.9 (Civil)
Title Sheet for Judgment
in suit
(R.P. 91)
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 05th day of August, 2020.
O.S.No.25400/2015
Plaintiff: Smt. Nasirunnissa,
S/o Late Abdul Rahim,
Aged about 65 years,
Residing at Door No.8/2,
Shamanna Garden, 3rd Cross,
Bannerghatta Road, Audugodi Post,
Bengaluru560 030.
[By Sri. K.N. Dayalu AssociatesAdv.]
V/s
Defendant: Sri. N.A. Venkatesh,
OS No.25400/2015
2
Father's name not known to the Plaintiff,
Aged about 58 years,
Prop:M/s. Deepa Bar & Restaurant,
No.15, Opp. To Wilson Garden 9th Cross,
Hosur Main Road, Arekempanahalli,
Bangalore560 027.
[By Sri. Kempanna Adv.)
Date of Institution of the suit 23.04.2015
Nature of the (Suit or pronote, suit
for declaration and possession, Ejectment
suit for injunction, etc.)
Date of the commencement of
28.09.2018
recording of the Evidence.
Date on which the Judgment was
pronounced. 05.08.2020
Year/s Month/s Day/s
Total duration 05 03 12
LXXII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
JUDGMENT
This suit is filed by the Plaintiff against the Defendant seeking directions to the Defendant to OS No.25400/2015 3 quit, vacate and handover the physical vacant possession of the suit schedule premises and to pay the damages of Rs.60,000/ from the date of suit till the delivery of Possession.
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 property bearing No.15, Opposite to Wilson Garden, 9th Cross, Hosur Main Road, Arekempanahalli, Bengaluru. The Defendant is in occupation of the portion of the said property, which is fully described as the Suit Schedule Property. The Defendant is the tenant under the Plaintiff on a monthly rent of Rs.17,000/, excluding electricity and water charges and the said tenancy commencing from 1st of every month and ends on the last day of same month, the rent payable becomes due on the first day of every month.
The Plaintiff requested the Defendant for several times to vacate the Suit Schedule Property as the same is required for the bonafide use and occupation of her son Muddasir Ahmed, for his OS No.25400/2015 4 business purpose, but the Defendant is postponing to vacate the said premises, on one or the other pretext. The Defendant is running bar and restaurant in the scheduled premises. The scheduled premises totally measuring 1100Sq.feet. The Plaintiff has terminated the tenancy of the Defendant by issuing a statutory notice on 05.03.2015. As per the said notice the tenancy of the Defendant expires on 31.03.2015. The said notice is duly served on the Defendant on 06.03.2015. The Defendant has failed to quit, vacate and deliver the vacant Possession of the scheduled premises in compliance of the said statutory notice. The Defendant has neither complied nor replied the said notice. Thus, the occupation of the Defendant has become illegal and unauthorized, therefore he is liable to pay damages @ Rs.60,000/ per month, from the date of determination of the tenancy, till the day of delivery of Possession, by him. Hence, prayed to decree the suit directing the Defendant to quit, vacate and deliver vacant Possession and to pay damages to the Plaintiff.
OS No.25400/2015 5
3. Suit summon was issued to the Defendant. Defendant has appeared through his Counsel on 08.07.2015 and filed his Written Statement on 29.04.2016, which was taken on record on 20.06.2016.
The Defendant in his Written Statement has denied all the allegations made by the Plaintiff in the Suit Plaint, but has specifically contended that, the Plaintiff is not the owner of the Suit Schedule Property, in which he is running a bar and restaurant under the name and style "Deepa Bar and Restaurant" and the said property measures only 700Sq.feet and not 1100Sq.feet, as contended by the Plaintiff. The Plaintiff has given wrong description and wrong measurements of the Suit Schedule Property and filed the present false suit, without any authority, as the Suit Schedule Property belongs to M/s. A.N. Trust and the said trust has inducted this Defendant, as tenant, under it. There is no resolution of the Trust or other Trustees infavour of the Plaintiff, authorizing her, to file the present suit for eviction. So, the suit of the Plaintiff is not OS No.25400/2015 6 maintainable. It is further contended that the son of the Plaintiff by name Muddassir has purchased a commercial complex, just opposite to the Suit Schedule Property, which consists of ground and first level floor and he has let out the ground floor for fabrication works and he is also running a P.G. in the first floor and getting an income of Rs.80,000/ per month from the said property. Therefore, the Suit Schedule Property is not at all required for the son of the Plaintiff, as contended by her.
The Defendant is in occupation of 700Sq.feet out of the property measuring 35feet X 85feet. The other eight portions of the said property have been let out to various tenants for running a hardware shop, a hotel, a teastall, automobile shop, petty shop, a canteen, lathe welding shop, which are situated in the ground floor, out of which Plaintiff is getting a sum of Rs.1,50,000/ per month as rent. The entire building in which the Suit Schedule Property is situated, consists of first and the second floor wherein 30rooms have been let out for P.G, from which the Plaintiff and her son is fetching a OS No.25400/2015 7 sum of Rs.2,00,000/ per month. Further the Plaintiff is having vast agricultural land at Kanakapura Road and she is getting fabulous income. It is submitted that the entire family of the Defendant is totally depending on the business run in the Suit Schedule Property, apart from the said income, the Defendant is not having any other source of income. The Defendant has invested about Thirteen lakhs for renovation of the Suit Schedule Property, to suit his business. Further he has also invested an amount of Rs.18,00,000/ with the consent of the owner of the building M/s. A.N. Trust and every year the Defendant is paying Rs.7,00,000/ as licence fee after this huge expenditure. If the Defendant is evicted from the Suit Schedule Property, he will be definitely, on the footpath, as there is no other way for him to do other business. However, he is in search of suitable premises in the locality to make his own arrangements, but his efforts have turned down. Hence, prays to dismiss the suit of the Plaintiff.
OS No.25400/2015 8
4. On the basis of the above said pleadings, my Learned predecessor in office, has framed the following issues on 03.03.2017 as under:
ISSUES
1. Whether the Plaintiff proves that the Defendant is a tenant under him in respect of the suit property?
2. Whether the Plaintiff further proves that he has validly terminated the tenancy of the Defendant?
3. Whether the Plaintiff is entitled for damages at the rate of Rs.60,000/ p.m. from the date of suit, as claimed?
4. Whether the Plaintiff is entitled to the relief claimed, in the suit?
5. What decree or order?
5. The Plaintiff inorder to prove her case, got examined herself as PW.1 on 28.09.2018 and has got marked 08documents as ExP1 to ExP.8. PW1 was cross examined on behalf of the Defendant on 12.12.2018 and 28.03.2019.
OS No.25400/2015 9 Per contra, the Defendant has got examined himself as DW.1 and has got marked 09documents as Ex.D.1 to Ex.D.9. DW1 was cross examined on behalf of the Plaintiff on 14.01.2020. Ex.P.9 was marked on confrontation to DW.1 on 14.01.2020.
6. The suit was initially allotted to CCH20. The case was transferred to this Court on 17.08.2018, by virtue of a notification No. ADMI(A) 413/2018 dated 31.07.2018 of the Principal City Civil and Sessions Judge, Bangalore.
7. Heard the Arguments of the Learned Counsels for the Plaintiff and the Defendant, respectively. The Learned Counsel for the Plaintiff has filed his Written Arguments on 30.01.2020 and Citations with Synopsis on 28.07.2020. The Learned Counsel for the Plaintiff has placed his reliance on the decisions reported in 1) AIR 2014 All (Noc) 115; 2) LAWS (KER) 2012 11 115; 3) LAW (KAR) 2019 4 222= AIR Kar 2019 3 18; 4) LAWS (KAR) 2019 4 28= KCCR 2019 2 1497; 5) LAWS (SC) OS No.25400/2015 10 1971 4 48 = AIR (SC) 1971 0 1865; 6) 2003(2) KCCR 1367.
Percontra, the Learned Counsel for the Defendant has filed Written Arguments on 27/06/2020 and has placed his reliance on the decisions, namely 1) AIR 1995 SC 2482; 2) AIR 1962 SC 633 & 3) AIR 1973 Guj 113 (FB).
I have carefully perused the Written Arguments and citations submitted on behalf of the Plaintiff and the Defendant, respectively.
8. My findings on the above said issues are as under:
Issue No 1 : In the Affirmative;
Issue No 2 : In the Affirmative;
Issue No 3 : Partly in the Affirmative;
Issue No 4 : In the Affirmative;
Issue No 5 : As per final order for the
following
OS No.25400/2015
11
:R E A S O N S:
9. ISSUE NO. 1:
The Defendant contends that, the Plaintiff is not the owner of the Suit Schedule property, but M/s. A.N. Trust is the owner of the said property.
On the other hand, the Plaintiff contends that, she is the absolute owner of the property bearing No.15, wherein the present Suit Schedule Property is the portion of the said property.
10. The Plaintiff has produced the certified copy of the Gift Deed dtd.13.02.1981, at Ex.P.1. The Plaintiff has also produced the typed copy of the said Gift Deed, which is marked as Ex.P.1(A). As per this document, it is seen that one Sharadamma W/o Shambunath has bequeathed the property bearing No.15, in Sy.NO.15/1B, situated at Arekempanahalli, 36th Division of Bengaluru, measuring East to West: 40feet or 12.19Meters and and North to South:85feet or 25.90Meters, in all OS No.25400/2015 12 315.86Sq. Meters, which is bounded on the East: By road; on the West: by Private property; on the North:
by Hosur Main Road and on the South: By site No.14, in favour of Nasirunnissa W/o Abdul Rahim the Plaintiff. Further this document also evidences that the donor has delivered actual Possession of the said property to the donee, on the day of the gift, itself. Further the donee has accepted the gift made to her, by the donor.
10.1. The Plaintiff has produced the Katha certificate, katha extract and tax paid receipts pertaining to the property No.15, corresponding PID No. 615115, situate at Arekempanahalli, Ward No.61, Bengaluru, at Ex.P.2 to Ex.P.5 and Ex.P.7, respectively. As per these documents, it is seen that the name of the PlaintiffNasirunnissa is shown to be the kathedar of the said property and she has paid necessary property taxes to the concerned authorities.
10.2. Coming to the ocular evidence on this point, more specifically, crossexamination of DW1 OS No.25400/2015 13 at Page No.13, Para Nos.3 and 4, which reads as under:
"It is true to suggest that, the Plaintiff is the owner of the Suit Schedule Property. I have not seen any documents relating to the title of the Suit Schedule Property.
It is false to suggest that, A. N. Trust is not the owner of the Suit Schedule Property. I do not know whether the Suit Schedule Property is standing in the name of the Plaintiff, she is paying assessment in respect of the Suit Schedule Property and Khatha pertaining to the Suit Schedule Property is standing in her name."
As per this evidence, the Defendant admits that, Plaintiff is the owner of the Suit Schedule Property and he has not seen title documents pertaining to the Suit Schedule Property. Further, the Defendant denies the suggestion made to him that A. N. Trust is not the owner of the Suit Schedule Property. Further, Defendant pleads his ignorance as to whether the Suit Schedule Property is standing in the name of the Plaintiff; whether she is paying assessment in respect of the said property and the OS No.25400/2015 14 Khatha pertaining to the said property is standing in her name.
10.3. Further, as per the cross examination of DW1, at Page No. 15, Para No.4, which reads as under:
"Apart from the Plaintiff, there is no other rival claimant, claiming to be the owner of the Suit Schedule Property, even through A. N. Trust."
As per this evidence, Defendant admits that, apart from the Plaintiff, there are no other rival claimants, claiming ownership over the Suit Schedule Property.
11. Coming to the aspect of relationship in between the Plaintiff and the Defendant, the Learned Counsel for the Plaintiff would contend that when in the absence of any written contract or local usages, duration of certain lease can be determined on the basis of the conduct of the parties. Further he has placed his reliance on the decision of the Hon'ble High Court of Karnataka, in the case of P Damodara Raju Vs R S Parameshwari, OS No.25400/2015 15 reported in LAWS (KAR) 2019 4 222, wherein it is observed in Para No 18, as under:
"18. If the entire cross examination is seen, it is not possible to say that he was under any confusion to understand the question as to how much rent he was giving at the inception of tenancy and when he stopped paying the rent. It is his clear answer that he was paying rent of Rs 3,000/ earlier and he stopped paying the rent when another building was constructed. This is not a stray statement in the cross examination. The inference that can be drawn is that he was paying rent at the inception. If after construction of annex building, he stopped paying rent, he should prove whether there has come into existence any other transaction between him and the plaintiff. Rather he setup adverse possession which is unacceptable and has no proof. Therefore the plaintiff has proved that defendant is her tenant. Nonexamination of a person who was present at the time when oral lease came into existence is not fatal to plaintiff's case. The trial Court is justified in coming to this conclusion. Point No. (1) is answered in affirmative."
OS No.25400/2015 16 Further, the learned Counsel for the Defendant would contended there is no relationship of a landlord and tenant in between the Plaintiff and the Defendant in respect of the Suit Schedule Property and secondly, the Defendant is paying the rent on behalf of 'Deepa Bar and Restaurant'.
The Learned Counsel for the Plaintiff would contend that, when the Defendant being the tenant has denied the relationship in between him and the Plaintiff as the landlord and tenant, the said ground is a good ground for eviction of the Defendant tenant.
Further, he has placed his reliance on the decision of the Hon'ble High Court of Karnataka, in the case of Babulal and another V/s. K.Sharadhamma and another, reported in 2003(2) KCCR 1367, wherein it is held that, OS No.25400/2015 17 "When the tenant takes the contention that, there is no relationship of landlord and tenant between him and the petitioner and fails to prove the nonexistence of such relationship, that itself, will for a good ground, for eviction U/Sec.27(2)
(o) of the Karnataka Rent Act, 1999."
This decision is passed under the provisions of the Rent Act, 1999, the present suit is filed for eviction of the Defendant, governing the provisions of the Transfer of Property Act. However, the plea taken up by the Defendant in the instant case is to be taken note of, along with the other circumstantial factors, putforth by both the parties to the lis.
11.1. Coming to the ocular evidence on this point, which can be seen in the cross examination of DW1, at Page No.13, Para No.1 as well as, at page No.14, Para No.3, which respectively reads as under:
"It is true to suggest that, I am tenant in the Suit Schedule Property."
OS No.25400/2015 18 "I am running a bar and Restaurant in the Suit Schedule Property, under the name and style "Deepa Bar and Restaurant"."
As per this evidence, the Defendant admits that, he is the tenant in the Suit Schedule Property and he is running a Bar and Restaurant, under the name and style "Deepa Bar and Restaurant".
11.2. Coming to the ocular evidence on the point of 'payment of rents by the Defendants in respect of the Suit Schedule Property' , which can be seen, more specifically, as per the crossexamination of DW1, at Page No.13, Para No.2, which reads as under:
"I know the Plaintiff. I have not verified the documents produced by the Plaintiff, in this case. I am giving rent to the Plaintiff. Prior to filing of this suit, I was paying rent to the Plaintiff, by way of Cheque in the name of Plaintiff."
As per this evidence, the Defendant admits that, he is and was paying rent to the Plaintiff.
OS No.25400/2015 19 11.3. Further, as per the cross examination of DW1, at Page No.14, Para No.2, which reads as under:
"About 5 years back, I was paying rent of Rs.17,000/ to A.N.Trust. Even I was paying the rent by way of cash to the son of the present Plaintiff, by name Shakeel. The said Shakeel used to collect the rent on behalf of his motherPlaintiff. The said rent of Rs.17,000/ was paid by me prior to filing of this suit."
As per this evidence, the Defendant contends that, about 5 years back he was paying rent to A.N.Trust and even he has paid rent to the son of the Plaintiff, who was collecting the rent, on behalf of the Plaintiff.
11.4. Further, the Defendant has produced copy of the reply notice issued by him to the Plaintiff on 18.08.2016, at Ex.D8. Para Nos.1 and 2 of the said reply notice, reads as under:
"I state that I have issued three cheques bearing No.487574 dated 18.4.2016 for a sum of Rs.85,000/ (Rupees Eighty five thousand) and another cheque bearing No.487578 dated OS No.25400/2015 20 10.6.20106 for a sum of Rs.34,000/ (Rupees Thirty Four Thousand) and another che4que bearing No.487595 dated 3.08.2016 for a sum of Rs.34,000/ (Rupees Thirty four Thousand) and all the cheques are drawn on Canara Bank, J.P.Nagar Bhranch, Bengaluru, and all these cheques are issued to you towards rent for the premises upto the end of July 2026.
I State that earlier I have sent to another cheque bearing No.487525 dated 17.10.2015 for a sum of Rs.1,70,000/ (Rupees one lakh seventy thousand) drawn on Canara Bank, J.P.Nagar Branch, Bengaluru towards payment of rent and now I have issued these above said cheques and all these cheques are issued towards payment of rent towards the rented premises and the contents of your notice dated 10.08.2016 are not correct and you cannot consider the amount paid through these cheques as damages and there is no any such terms and agreement in between us and there is a suit pending consideration and no order is passed by this Hon'ble Court, for adjustment of damages or any other purpose. As such, you have no right to adjust the said cheque towards the damages or any other purpose whatsoever, except towards rent till the end of July 2016."
OS No.25400/2015 21 As per this reply, given by the Defendant to the Plaintiff, wherein the Defendant contends that, he had issued 3 cheques for Rs.85,000/; a cheque for Rs.34,000/ and another cheque for Rs.34,000/; to the Plaintiff, towards rent of the premises.
12. As per the above ocular and documentary evidence, it can be concluded that, the Defendant is the tenant in the Suit Schedule Property and he is and was paying rent to the Plaintiff, either in cash or by cheque, either to the Plaintiff or to her son, as an individual, and the said rent was received by the Plaintiff or her son on her behalf. Considering the submission of the Learned Counsel for the Defendant that, the Plaintiff is not the Landlord and owner of the Suit Schedule Property, then why the Defendant is or was paying the rent to either her or to her son.
13. As per the decision of the Hon'ble Apex Court in the case of Maria Margarida Sequeria Fernandes and Others Vs Erasmo Jack de Sequeria (Dead) through his Lrs; wherein it is OS No.25400/2015 22 observed at Para Nos 66 & 68 of the said Judgment, which reads as under:
"66. A title suit for possession has two parts first adjudication of title and second adjudication of possession.
If the title dispute is removed and the title is established in one or the other, then, in effect, it becomes as suit for ejectment where the defendant must plead and prove why he must not be ejected.
68. ...... Once the title is prima facie established, it is for the person who is resisting the title holder's claim to possession to plead with sufficient particularity on the basis of his claim to remain in possession and place before the Court all such documents, as in the ordinary course of human affairs are expected to be there."
13.1. Further in the case of Anima Mallick Vs Ajoy Kumar Roy and another reported in (2000) 4 SCC 119; wherein the Hon'ble Apex Court has held that, OS No.25400/2015 23 "When evidence shows that Respondent using garage owned by Appellant, on permission having granted by the sister to the brother. The Respondent was not claiming ownership no legal interest, he was not claiming to be a tenant or even a licensee. His possession was held purely to be gratuitous. Reclaiming of possession without the knowledge of Respondent is permissible".
14. Relying the above said prepositions of law to the present set of facts at hand and considering the above said materials placed on record, coupled with evidence both documentary and oral, it goes to show that, Plaintiff has received the Suit Schedule Property under the Gift Deed dated 13.02.1981; the Defendant is the tenant in the Suit Schedule Property; the Defendant is paying rents to the Plaintiff.
When the Defendant contends that, he is the tenant of the Suit Schedule Property, then the Defendant is estopped from denying the ownership of the person at whose instance, he is enjoying the OS No.25400/2015 24 the said property as tenant, as per Sec.116 of Indian Evidence Act. The rule of estoppel contend in Section 116 of Indian Evidence Act, is not exhaustive, mere denial of title of landlord is not sufficient, such denial has to be backed with cogent evidence. I find force to my above as per the decision of Hon'ble Apex Court in the case of J.J.Lal Pvt. Ltd., V/s M.R.Murali, reported in AIR 2002 SC 1061.
Thus, the Plaintiff has proved that, the Defendant is the tenant under her, in respect of the Suit Schedule Property. Hence, I am constrained to answer ISSUE NO.1 IN THE AFFIRMATIVE.
15. ISSUE NO.2:
The Plaintiff contends that, the Defendant is a tenant on monthly tenancy commencing from the 1 st of every month and ends on the last day of the said month and rent payable, becomes due on the first day of every month, paying monthly rent of Rs.17,000/ per month.
The Defendant has produced rental agreement at Ex.D9. As per this document, tenancy is a OS No.25400/2015 25 monthly tenancy, but the said period of lease was for three years from 18.03.1997, which ends on 17.03.2000.
15.1. The Learned Counsel for the Plaintiff would contend that, mere marking of the document ExD9, will not take away the duty to prove the said document; and has placed his reliance on the decision of the Hon'ble Apex Court, in the case of Sait Tarajee Khimchand Vs Velamarti Satyam @ Satteyya, reported in LAWS (SC) 1971 4 48, wherein it is held that, "mere marking of exhibit does not give proof of document."
15.2. Further, the Defendant has produced a reply notice dated 13.03.2015 at Ex.D1. As per the contents of the said reply notice, more specifically, at Page No.2, Para No.2, which reads as under:
"My client instruct me that no further agreement is executed by his lessors and at no point of time they asked him to vacate the schedule premises. In fact his Lessors OS No.25400/2015 26 have asked him to continue the business whatever the time he want. When such being the fact the notice issued by you on the instructions of Smt. Naseerunnisa has holds no water."
As per the contents of this reply notice, it can be said that, no further agreement is executed by the lessor in favour of the Defendant.
16. The Plaintiff contends that, she has issued notice of termination against the Defendant calling upon him, to vacate the premises and to handover the vacant Possession of the Suit Schedule Property and to pay damages.
The Plaintiff has produced the notice of termination issued by her, through her Counsel, to the Defendant on 05.03.2015, as per Ex.P8. On careful perusal of the said document, it is seen that, the Plaintiff has terminated the tenancy of the Defendant, with effect from 01.04.2015 and has called upon the Defendant to vacate and to handover the vacant Possession of the Suit Schedule Property, to the Plaintiff.
OS No.25400/2015 27 16.1. The Defendant admits the receipt of the notice issued to him, as per Ex.P8, the same can be seen, as per the cross examination of DW1, at Page No.15, Para No.2, which reads as under:
"It is true to suggest that, Plaintiff has sent a notice requesting me to vacate the Suit Schedule Property, as per Ex.P8. It is false to suggest that, after receipt of Ex.P8 by me, I have not paid any rent to the Plaintiff."
So, as per this evidence, Defendant admits the receipt of notice, as per Ex.P8.
16.2. Admittedly, the tenancy inbetween the Plaintiff and the Defendant, is a monthly tenancy.
17. As per Sec. 106 of Transfer of Property Act, when the lease is a monthly lease, 15days clear notice, for vacating the premises, is to be given to the tenant, by the landlord. In this case, on careful reading of Ex.P.8, the Plaintiff has given 15 days clearcut notice, calling upon the Defendant to OS No.25400/2015 28 quit and handover the vacant possession of the Suit Schedule Property to her, on terminating his tenancy. Under such circumstances, I hold that service of notice is effected, in terms of 106 of Transfer of Property Act.
17.1. By issuing notice under Sec.106 of T.P. Act, the Plaintiff has made her intention clear, not to continue the tenancy of the Defendant, so question of continuation of further tenancy, does not arise at all.
17.2. The tenancy of the Defendant has commenced under Ex.D9Rental Agreement dated 18.03.1997, on 18.03.1997, wherein it was for a period of 3 years and both the parties had agreed to enhance the period of the tenancy, on mutual consent. As per Ex.D9, there is no consent of the Plaintiff for continuation of the period of lease/tenancy from 18.03.2000.
OS No.25400/2015 29 17.3. The Learned Counsel for the Defendant would contend that the termination of tenancy was invalid because the lease infavour of the defendant was a manufacturing lease; and six months notice under Sec 106 of Transfer of Property Act was necessary, inorder to terminate the tenancy of the Defendant. And has placed his reliance on the decision of the Hon'ble Apex Court, in the case of Shri Janaki Devi Bhagat Trust, Agra Vs Ram Swarup Jain (dead) by Lrs, reported in AIR 1995 SC 2482, wherein it is observed in Para Nos 5 and 6 as under:
"5. This reasoning is fallacious. It is true that Ex.12 which is not registered, cannot be looked at because it is not registered. But the factum of lease is not in dispute. All the Courts have held that it was a lease from month to month and was not for a term exceeding one year. Inview of this finding, the deeming provision of the first part of Section 106 of Transfer of Property Act cannot be attracted in the present case.
6. Section 106 provides, inter alia, that in the absence of a contract between the parties, a lease of immoveable property for manufacturing purposes OS No.25400/2015 30 shall be deemed to be a lease from year to year terminable by six months notice. In the present case there is a clear finding to the effect that the lease in question was not from year to year or for a period exceeding one year. Therefore, even though the lease may be for a manufacturing purpose, since the lease was not from year to year, six months notice was not required. A manufacturing lease which is not from year to year does not require six months notice of termintation. It will fall in the second half of Section 106, requiring fifteen days notice of termination. ...."
17.4. Applying the above principles of law to the the instant case at hand, it can be seen in the present case that, firstly, the defendant (DW1) has admitted that, he is paying monthly rents either to the Plaintiff or to her son; Secondly, the documents placed on records like ExD9, (though the document was required to be registered, but the said document was marked, only to prove the transaction relationship of landlord and tenant). The said document suggests that, the rent payable was month to month and not year to year; Thirdly, the lease is OS No.25400/2015 31 not a Manufacturing lease, as provided in the first half of Sec 106 of TP Act, as the said lease was entered into by N A Venkatesh and not by M/s Deepa Bar and Restaurant. So the instant lease falls within the ambit of the second half of Section 106 of TP Act, which requires 15 days quit notice. Thus, I do not find any force in the submission of the learned Counsel for the Defendant, to contend that the instant lease is a Manufacturing lease and the same requires six months quit notice.
18. Further the Learned Counsel for the Defendant would contend that, after issuance of the notice of termination by the Plaintiff, the Defendant has paid the rents to the Plaintiff and her son, as well as, he has paid the rents by depositing the same in this Court, after filing of this suit, and the rents are received and withdrawn by the Plaintiff, so firstly the issuance of termination notice amounts of waiver and secondly it amounts to creation of new tenancy.
OS No.25400/2015 32 Percontra the Learned Counsel for the Plaintiff would contend that, even if the rents are received, neither it will amount to waiver of quit notice nor a fresh tenancy is created and he has place his reliance on the decisions
a) of the Hon'ble High Court of Karnataka, in the case of K S Mani Vs K Vasudeva, reported in LAW(KAR) 2019 4 28, wherein it is observed in para No 15, as under:
"... Mere acceptance of rent after termination of lease does not result in waiver of right to evict a tenant. It all depends on the intention of the landlord. The judgment of the Supreme Court in the case of Swaroop Singh Gupta Vs Jagdish Singh, 2006 AIR (SC) 1734, and a judgment of this Court in the case of Vasanth Kumar D Shah Vs Sugandha Raman, 2006 6 AIR Kar R 308 were cited before the Learned Judge who decided the case of Auto World (spra). It was held that the principles laid down in the judgment of the Supreme Court and this Court were best authorities for the cases decided therein. Another earlier judgment of the Supreme Court in the case of Tayabali Jaffarbhai Tankiwala Vs M/s OS No.25400/2015 33 Asha and Company, 1970 1 SCC 46, was followed to hold that there was waiver of notice of termination of lease in my opinion the judgment of the Supreme Court in the case of Swaroop Singh Gupta (supra) being later in point of time holds the field and therefore the judgment in M/s Auto World, Bangalore (supra) cannot be followed. Even otherwise acceptance of rent after termination of tenancy by issuing a notice does not take away the right of the landlord to evict his tenant. Payment of rent is an obligation on the tenant."
b) of the Hon'ble High Court of Allahabad, in the case of Uttam Chand Gupta and Antoher Vs The New India Assurance Company Ltd., reported in AIR 2014 (NOC) 115 (ALL.,), wherein it is held that:
"Acceptance of rent by landlord even after giving of quit notice, by itself is not sufficient to conclude that notice was waived".
c) of the Hon'ble High Court of Kerala, in the case of Lissy Rubbers (P) Ltd., Vs Meenachil Taluk Cooperative Employees Cooperative OS No.25400/2015 34 Society Ltd.,, reported in LAW(KER) 2012 11 115, wherein it is observed in para No 15, as under:
"The mere acceptance of rent after termination of the tenancy by itself would not about to creation of a new tenancy".
Applying the above principles of law to the instant case at hand, it can be said that, even if rent is accepted by the Landlord, after issuance of quit notice, neither it will amount to waiver of such quit notice nor creation of a new tenancy, as the tenant is under the obligation to pay the rent to the landlord. Having observed so, I do not find any force in the contention of the Learned Counsel for the Defendant to contend that, acceptance of rent by the plaintiff will amount to waiver of the quit notice or it will amount to creation of new tenancy infavour of the Defendant.
19. Even other wise in this case, notice is not required to be served on the Defendant. It is not in dispute that the Defendant was put in possession, as a tenant of the Suit Schedule Property, as per OS No.25400/2015 35 Ex.D.9 Rental Agreement dtd.18.03.1997 and the said lease admittedly, was for a period of 03years. It is also not in dispute that, the said period expires on 18.03.2000.
19.1. 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.D9, 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, as per Ex.P8, 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.
19.2. 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 continues OS No.25400/2015 36 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 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 as by the Hon'ble High Court of 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 OS No.25400/2015 37 arises, as no subsisting contract remains, after the lease period is over.
20. Therefore, I am constrained to hold that, the tenancy of the Defendant is terminated by determination of contract of tenancy as well as, as per the notice issued by the Plaintiff under Ex.P8. Thus, the Plaintiff has proved that she has validly terminated the tenancy of the Defendant.
Hence, I am constrained to answer ISSUE NO.2 IN THE AFFIRMATIVE.
21. ISSUE NO.3:
The Plaintiff contends that the Defendant has to pay the damages at the rate of Rs.60,000/ per month, to her. Further, the learned counsel for the Plaintiff, would contend that the Defendant has to pay the damages to the Plaintiff from 01.04.2015.
21.1. Further, the learned counsel for the Plaintiff would contend that, the similar premises in the vicinity would fetch more than Rs.60,000/ per OS No.25400/2015 38 month, as rent. He has drawn the attention of this Court to the suggestions made to the Plaintiff on behalf of the Defendant, in her cross examination, more specifically, cross examination of PW1 at Page No.14, Para Nos.2 and 3, which read as under:
"It is true to suggest that one more hardware shop is located in the said property. He is paying rent of Rs.60,000/. It is true to suggest that there is one hotel located in the said property. It is false to suggest that the said hotel holder is giving rent at the rate of Rs.30,000/ per month. Witness volunteers that he is paying Rs.50,000/ per month. It is false to suggest that the 3 Tea Stall holders are paying rent of Rs.10,000/ per month each.
We have got vacated Automobile Shop in the Suit Schedule Property. Witness volunteers that I am having 10 sons I have to accommodate them. It is false to suggest that I have not got vacated the said Benz Automobile Shop and further, it is false to suggest that they are paying an amount of Rs.13,000/ per month to me. Witness volunteers that they were paying an amount of Rs.20,000/ per month as rent."
As per this evidence, the Plaintiff has admitted the suggestions made on behalf of the Defendant OS No.25400/2015 39 that, one hardware shop is located in the same building, wherein the Defendant is running his business and the said shop holder is paying rent of Rs.60,000/. Further, the Plaintiff has admitted that, there is one hotel in the said building and denies that the said hotel holder is paying rent of Rs.30,000/ per month, but contends that, he is paying Rs.50,000/ per month.
21.2. On careful perusal of this ocular evidence, it is not on record, as to what is the area occupied either by the hardware shop holder or by the hotel holder, in the said building wherein the Defendant is running his Bar and Restaurant. So on the said facts, it will not be feasible to grant damages to the Plaintiff, at the rate of Rs.60,000/ per month, but looking to the materials on record, an amount of Rs.15,000/ per month, can be awarded as damages to the Plaintiff from 01.04.2015, apart from the rent which is already paid by the Defendant to the Plaintiff. Since issuance of notice of terminationEx.P.8 is in accordance with Sec.106 of OS No.25400/2015 40 T.P.Act, so the same is to be considered for recokning the period for awarding the damages.
Hence, the Plaintiff is entitled for the damages of Rs.15,000/ per month, apart from the rent paid by the Defendant from 01.04.2015, till vacating the Suit Schedule Property. Hence, I answer ISSUE NO.3, PARTLY IN THE AFFIRMATIVE.
22. ISSUE NO.4:
Further, the learned counsel for the Defendant would contend that, the Suit Schedule Property is the property belonging to A.N.Trust and the Plaintiff is one of the Trustee and she cannot initiate the proceedings for eviction of the Defendant, from the Suit Schedule Property, muchtheless, by filing the present suit, without joining all the Trustees to the Suit. Consequently, contends that, suit filed by the Plaintiff is not maintainable. And has placed his reliance on the decision of the Hon'ble Apex Court, in the case of L Janakirama Iyer and Others Vs. P M Nilakanta Iyer and Others, reported in AIR 1962 SC 633, wherein it is held that, OS No.25400/2015 41 "Where a clause in the Trust Deed under which three trustees were appointed, it did not allow two of the three trustees to act without joining the third trustee in the actual action to be taken in the execution of the trust. Thus as per Sec 48 of the Trust Act, when two of the trustees out of three had joined in the execution of the Saledeeds of the Trust properties, in the administration of trust, such saledeeds must be held invalid and no title to the alienees will not pass under such Saledeeds".
22.1. As well as the Learned Counsel for the Defendant has placed his reliance on the decision of the Hon'ble High Court of Gujarat, in the case of Atmaram Ranchhodbhai Vs Gulamhusein Gulam Mohiyaddin and another, reported in AIR 1973 Guj 113, wherein it is held that, "Unless the instrument of truest provides, all cotrustees must join in filing a suit to recover possession of the property from the tenant".
22.2. The Learned Counsel for the Defendant has also invited the attention of this OS No.25400/2015 42 Court, to the document marked at ExD9 and would contend that the said document is executed by the Plaintiff as one of the Trustees of A N Trust. The relevant portion of the said documentEx.D9, reads as under:
".... BETWEEN SRI ABDUL RAHIM son of MAHAMMEDHAYATH Managing Trustee of A N FAMILY TRUST & OWNER OF THE A. N. TRUST SMT rd NASIRUNNISSA, No 8/2, 3 Cross, Shamanna Garden, Bangalore560 027, hereinafter called the LESSOR of the one part......"
On careful perusal and reading of the said document, the said document will not suggest that, the property shown under its schedule, belongs to A N Trust; Secondly, the Defendant has not produced any document to show that the Suit Schedule Property belongs to A N Trust; Thirdly, the Plaintiff has produced the document at ExP1Gift Deed dated 13.02.1981, which suggest that the Plaintiff is the owner of the Property in which the Suit Schedule Property, is located; Fourthly, the Defendant has neither produced any document pertaining to the OS No.25400/2015 43 formation of Trust, like Trust Deed, etc., nor has made any efforts to secure such document.
Under such circumstances of the case, it is very difficult to believe that the Suit Schedule property belongs to the Trust and in the absence of any material evidence like Trust Deed on record, it is also difficult to draw the terms of the Trust, as contended by the Learned Counsel for the Defendant.
22.3. Coming to the ocular evidence of the Defendant, on this point, wherein he contends that, he has entered into a rental agreement with the Plaintiff, which can be seen as per the cross examination of DW1, at Page No.15, Para No.1, which reads as under:
"It is true to suggest that I have produced Rental Agreement dated 02.04.2000, in this case. (Since, the said document is embossed on Rs.15/ stamp paper, the same was not marked). On admission and confrontation of the said document, the same is marked as Ex.P9. It is true to suggest that as per Ex.P9 I have entered into a Rental Agreement with the Plaintiff."
OS No.25400/2015 44 22.4. Further, the Defendant has produced rental agreement dated 18.03.1997 at Ex.D9. As per this document, it is seen that one Abdul Rahim S/o. Mahammedhayath, acting as a Managing Trustee of A.N.Family Trust and owner of the A.N.Trust Smt. Naseerunnisa have entered into a lease agreement with Sri.N.A.Venkatesh, Proprietor:
M/s. Deepa Bar and Restaurant, in respect of the premises bearing No.15/1, out of property No.15, situated at Arekempanahalli, Opposite to 9th cross, Hosur Road, Bangalore, measuring about 700 sq.fts, with electricity and water.
22.5. Further, coming to the ocular evidence of the Plaintiff, more specifically, cross examination of PW1, at Page No.15, Para No.5, which reads as under:
"It is true to suggest that, myself, my husband and my sons are the trustees of M/s. A.N.Trust. I do not know whether different trustees have executed different agreements with different tenants in the building."
OS No.25400/2015 45 As per this evidence Plaintiff admits that, a trust by name M/s. A.N.Trust, was in existence and she her husband and her sons were the trustees of the said trust.
22.6. As per 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;
"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. Co owner becomes partowner only on Partition and Division by metes and bounds".
Further as per the decision of the Hon'ble Apex Court in the case of Mohinder Prasad Jain V/s OS No.25400/2015 46 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".
22.7. 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 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 ensure 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".
OS No.25400/2015 47 22.8. 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 a change only when Partition takes place and division was effected by metes and bounds".
22.9. In the instant case, even presuming that, there was a trust and the Plaintiff is one of the trustees of the said trust, then the Plaintiff will be, exercising her rights, on the footing of a coowner, then she can file a suit for eviction of the Defendant, the decree, if any passed, in such suit, will enure to OS No.25400/2015 48 the benefit of all the trustees of said M/s. A. N.Trust. Thus, the contention taken up by the Defendant that the suit of the Plaintiff, is not maintainable, cannot be accepted at all.
23. The Defendant contends that, he is running a Bar and Restaurant business, in the Suit Schedule Property, in order to find an alternate accommodation, he will be requiring some time.
23.1. Looking to the situation regarding COVID19 Pandemic, prevailing in the vicinity; looking to the nature and length of the relationship in between the Plaintiff and the Defendant; the fact that the Defendant is depositing the rent; the nature of business carried by the Defendant in the Suit Schedule Property, it will be just, proper and necessary to give reasonable time to the Defendant to vacate the Suit Schedule Property. Under such circumstances, the Defendant, if directed to quit, vacate and handover the possession of the Suit Schedule Property to the Plaintiff, till 31.12.2020, no loss or prejudice will be caused to him. If, he fails, to OS No.25400/2015 49 vacate the Suit Schedule Property on 31.12.2020, then he will be liable to pay the damages to the Plaintiff, at the rate of Rs.75,000/ per month from 01.01.2021 till the date of delivery of possession.
24. Thus, the Plaintiff is entitled for the relief of possession of the Suit Schedule Property, by directing the Defendant to quit, vacate and handover the possession of the Suit Schedule Property to the Plaintiff, alongwith the damages.
Hence, I answer ISSUE NO.4 IN THE AFFIRMATIVE.
25. ISSUE NO.5:
Plaintiff has shown that, the Defendant is the tenant of the Suit Schedule Property; he was paying rent to her; she has validly terminated the tenancy of the Defendant, as per Ex.P8; On termination of the tenancy, she is entitle for the relief of ejectment of the Defendant from the Suit Schedule Property, and for damages.
OS No.25400/2015 50 Damages:
From 01.04.2015 to 31.12.2020 @ Rs.15,000/ pm X 69months Rs.10,35,000/ As per Ex.D9, more specifically, Page No.2, Para No.4, the Defendant has paid an amount of Rs.2,50,000/ as security deposit to the Plaintiff and her husband. On deducting the said amount, the Defendant is liable to pay damages of Rs.7,85,000/ to the Plaintiff on or before 31.12.2020.
The Defendant has to deposit/pay the rent to the Plaintiff till 31.12.2020.
Hence, I proceed to pass the following:
ORDER Suit of the Plaintiff is Decreed in part, with costs.
Defendant is directed to vacate and handover the Suit Schedule Property to the Plaintiff, on or before 31.12.2020.
Plaintiff is entitle to receive an amount of Rs.7,85,000/ towards OS No.25400/2015 51 damages upto 31.12.2020, from the Defendant. The Defendant is hereby directed to pay the said damages to the Plaintiff, on or before 31.12.2020.
In case of default, on the part of the Defendant to vacate and deliver the possession as ordered, the Plaintiff will be entitle to receive an amount of Rs.75,000/ per month, as damages from the Defendant, from 01.01.2021 till the date of receipt of the possession of the Suit Schedule Property.
In case of default on the part of the Defendant to pay the damages, the Plaintiff will be entitle to receive the same with interest at the rate of Rs.8% p.a from 01.01.2021, till its realization.
Draw decree accordingly.
(Dictated to the Stenographer 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 5th day of August, 2020.) [AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) OS No.25400/2015 52 :SCHEDULE PREMISES:
The commercial premises bearing No.15, opp. To Wilson Garden, 9th Cross, Hosur Main Road, Arekempanahalli, Bengaluru560 027 consisting of one Hall, Kitchen, one Room, common passage, two bath rooms totally measuring 1100Sq.feet bounded on the:
East by : Road;
West by : Passage of the property of Nasirunnissa and thereafter Private property;
North by : Property bearing No.15 belonged to my client Nasirunnissa;
South by : Property belonged to Nasirunnissa.
[AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) OS No.25400/2015 53 ANNEXURES: LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1: Smt. Nasirunnissa.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFFS:
Ex.P.1 : Certified copy of Gift Deed dt.13.02.1981.
Ex.P.1(A) : Typed copy of Ex.P.1. Ex.P.2. : Katha Certificate.
Ex.P.3 : Katha extract.
Ex.P.4 & 5 : Two tax paid receipts. Ex.P.6 : Encumbrance certificate.
Ex.P.7 : Tax paid receipt. Ex.P.8,
8(A), 8(B) : Office copy of the notice along with postal receipts and postal acknowledgement respectively.
Ex.P.9 : Rental Agreement dt.02.04.2000. (On confrontation to DW.1) LIST OF WITNESSES EXAMINED FOR THE DEFENDANT:
DW.1: Sri. N.A. Venkatesh.
LIST OF EXHIBITS MARKED FOR THE DEFENDANT:
Ex.D.1 D1(A) : Reply notice along with Postal receipt Ex.D.2 to 5 : Four sealed postal return envelopes.
OS No.25400/2015 54 Ex.P.6 & D.7 : Two rental receipts. Ex.P.8, 8(A) : Reply notice along with postal acknowledgement.
Ex.D.9 : Rental agreement dt.18.03.1997.
[AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) OS No.25400/2015 55