IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO R.F.A.No.494/2008 BETWEEN:
SMT PANI BAI CARRYING ON BUSINESS IN TEXTILE GOODS AS PROPRIETRIX OF M/s.SHA MOHANLAL UDAYARAJ AND CO., NORTH EASTERN SHOP No.3 PRESENT No.10/2, ARMUGAM MUDALIAR LANE CHICKPET CROSS, BANGALORE-560 053.
REP. BY ITS GPA HOLDER JAYANTHILAL. ..APPELLANT (BY SRI P D SURANA, ADVOCATE) AND:
1 . S RANGARAJU SINCE DECEASED BY LRS 1(a) R.NAGARAJU AGED ABOUT 43 YEARS S/O LATE S RANGARAJU R/O NO.1, UTTARADHI MUTT LANE I CROSS, CHICKPET, BANGALORE-560 053 1(b) R.JAYARAMARAJU AGED 39 YEARS S/O LATE S RANGARAJU R/O NO.1, UTTARADHI MUTT LANE I CROSS, CHICKPET, BANGALORE-560 053 1(c) BHOJA RAJU AGED 32 YEARS S/O LATE S RANGARAJU R/O NO.1, UTTARADHI MUTT LANE I CROSS, CHICKPET, BANGALORE-560 053 1(d) SMT. DHANALAKSHMAMMA AGED 65 YEARS W/O LATE S RANGARAJU R/O NO.1, UTTARADHI MUTT LANE I CROSS, CHICKPET, BANGALORE-560 053 1(e) SMT. R KOUSALYA RAJU MAJOR W/O SUDANA SHANKAR RAJU D/O LATE S RANGARAJU R/O NO.1, UTTARADHI MUTT LANE I CROSS, CHICKPET, BANGALORE-560 053 2. SRI VENKATA SUBBARAJU AGED ABOUT 42 YEARS S/O LATE S KRISHNAIAH RAJU, PORTION OF NO.3, PRESENT NO.10/2 ARMUGAM MUDALIAR LANE, CHICKPET CROSS BANGALORE-560053.
3. CHANDMAL MAJOR FORMER PARTNER OF M/s.SHA MOHANLAL UDAYARAJ AND CO., A M LANE, CHICKPET BANGALORE-560 053 4. SMT. VIMALA KUMARI MAJOR FORMER PARTNER OF M/s.SHA MOHANLAL UDAYARAJ AND CO., A M LANE, CHICKPET BANGALORE-560 053 5. KANHYALAL MAJOR FORMER PARTNER OF M/s.SHA MOHANLAL UDAYARAJ AND CO., A M LANE, CHICKPET, BANGALORE-560 053. ..RESPONDENTS (BY SRI ASHITH RAJ, ADVOCATE FOR SRI M M SWAMY FOR R1(a-e) & R2, NOTICE TO R-3 AND R-5 DISPENSED WITH VIDE ORDER DATED 04.08.2015, R-4 SERVED) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 14.02.2008 PASSED IN O.S.No.2457/99 ON THE FILE OF THE I ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH-2) DECREEING THE SUIT FOR DELIVERY OF VACANT POSSESSION, RECOVERY OF RENT, MESNE PROFIT, COSTS AND OTHER RELIEFS.
THIS RFA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Appeal is directed against the Judgment and decree dated 14.02.2008 passed in O.S.No.2457/1999 by the I Additional City Civil and Sessions Judge, Bengaluru, CCH-2 wherein the suit of the plaintiffs came to be decreed and defendants No.1 to 4 were directed to quit and vacate the schedule property to deliver possession of the same to the plaintiffs within 60 days from the date of Judgment and also to pay damages at the rate of Rs.6,000/- per month from the date of the Judgment till the delivery of the possession. The defendant No.3 has preferred the present appeal.
2. In order to avoid confusion and overlapping, parties are addressed in accordance with their respective rankings before the trial court.
3. Plaintiff No.1 and father of plaintiff No.2 late Krishnaiah Raju are the full brothers and owners of shop premises bearing No.3 now 10/2, A.M.Lane, Chickpet Cross, Bengaluru and partitioned the same by which eastern half portion fell to the share of the deceased Krishnaiah Raju, father of plaintiff No.2 and western half portion fell to the share of plaintiff No.1. It is also stated late Krishnaiah Raju during his life time executed a Will in favour of his son plaintiff No.2 on 07.06.1998. Krishnaiah Raju died on 05.12.1998 on which date the Will became enforceable. One shop situate in north eastern portion of the said property morefully described in the plaint was let out by Krishnaiah Raju on monthly rent of Rs.900/- excluding electricity charges to the defendant No.1-firm represented by Bhawar Lal. Thus, the said Bhawar Lal was a tenant of schedule property for all purpose and Kanhaya Lal is the representative of the firm and defendants 2 to 4 are stated to be partners. Plaintiffs thus, are the landlords and termination of tenancy was effected through notice said to have been issued on 02.12.1998 to terminate the tenancy.
4. Even then defendants were not ready to vacate the schedule premises. The defendant No.3 appeared through her counsel. However defendant No.1 was represented by Kanhaya Lal and defendants 2 and 4 remained absent.
5. Written statement was filed by defendant No.3.
The jural relationship is denied. Rental termination period is disputed. Partition among plaintiffs is denied. Execution of Will by Krishnaiah Raju is denied. The other sons of late Krishnaiah Raju are not made parties. Defendant No.3 further claimed that after the death of Bhawar Lal, as their children were very small and they suffered hardship. Defendant No.3 continued the business of the firm by taking her brother- Kanhaya Lal, her father- defendant No.2 –Chandmal, and her daughter-defendant No.4 as working partners. They continued in occupation of schedule property as tenants.
6. The lease according to the defendant was extended from time to time. The schedule property is shop premises stated to be situate at Armugam Mudaliar Lane, Chickpet Cross, Bengaluru. However learned counsel for appellant-defendant No.3 submits the measurement of the schedule property is not mentioned in the schedule but it is 14x15 ft.
7. The evidence considered for the disposal is oral evidence of PW-1-R.Nagaraju and documentary evidence Exhibits P-1- original partition deed dated 18.02.1981, Ex.P-1(a) –plan annexed to Ex.P-1, Ex.P- 2 – Lease agreement, Ex.P-3-Office copy of the notice dated 20.12.1982, Ex.P-4- Office copy of the notice dated 05.04.1989, Ex.P-3(a) & 4(a) –Relevant acknowledgments, Ex.P-5 – Office copy of the notice dated 02.12.1998, Ex.P-5(a) to (d)-Postal Acknowledgements, Ex.P-6- UCP, Ex.P-7- Office copy of the petition in HRC 35/1989, Ex.P-8-Copy of the objection, Ex.P-9- Xerox copy of the order passed in HRC 35/1989, Ex.P-10 – Copy of Sketch on behalf of the plaintiffs. Oral evidence of DW-1 –Jayanthilal and documentary evidence Ex.D-1- Letter dated 24.03.1972, Ex.D-2 to 5 –rent receipts, Ex.D-6- Letter dated 01.03.1988, Ex.D-7 – Advance receipt, Ex.D-8 & 9 – Rent and receipts and Ex.D-10- Power of attorney on behalf of defendants.
8. Learned counsel for appellant-defendant No.3 submitted that proceedings for eviction in the form of original suit was not available to the plaintiffs in the light of the fact that through partition they have bifurcated the schedule property and the portion of share by each of the sharer plaintiffs is less than 14 sq. mtrs.
9. The calculation by the defendant is total measurement 14x15 ft =210 sq. ft. By partition each of the plaintiffs would get ½ =105 sq. ft. which is less than 14 sq. meters. The proceedings invariably should have been initiated under Karnataka Rent Act. It was also submitted that tenancy was never transferred in favour of the plaintiffs and they have mislead and suppressed the true jural relationship before the court. Learned counsel would further submit that the concept of split tenancy is unknown to law but the plaintiffs have sought for termination of split tenancy from the defendants as the property came to be divided by virtue of partition. Further ground urged by the learned counsel for appellant is that a co-sharer cannot maintain a suit for recovery of possession of total property. Thus the plaintiffs have no locus standi to file the suit. The trial court erred in applying the principles of eviction pertaining to provisions of Transfer of Property Act instead of Karnataka Rent Act.
10. Learned counsel for appellant-defendant No.3 would further submit that if once rents are received during the proceedings it amounts to recognition of renewal of tenancy. In support of his submission learned counsel has relied upon the following decisions:
(i) AIR 2015 Karnataka 128 – M/s.Auto World, Bangalore Vs Smt.K.V.Sathyavathi (ii) AIR 1997 SC 998 –Sk.Sattar Mohd. Choudhari Vs Gundappa Amabadas Bukate (iii) AIR 1949 Federal Court 124 – Kai Khushroo Bezonjee Capadia Vs Bai Jerbai Hirhibhoy Warden and anr (iv) AIR 1951 SC 285 – Karnani Industrial Bank Ltd. Vs The Province of Bengal and others (v) Judgment dated 19.11.2007 in RFA No.680/2005 11. The learned counsel for plaintiff/respondents would submit that tenancy was terminated and the proceedings so far suggest how the defendant has harassed the plaintiffs. He would further submit that the defendants have been forwarding one or the other untenable defence without realizing their legal duty to vacate the schedule property. Further defendant has no mercy on the plaintiffs.
12. Whenever tenancy is disputed against sub-lessee and if the landlord acknowledges the rent from the sub-lessee that goes in a different lane of consideration in the matter of considering tenancy of sub-lessee.
13. As the property was initially rented as a full property and there is no adverse interest between the plaintiffs and defendants more particularly the animus was that it was a tenancy that was never split for the purpose of contract I find the contention that tenancy is denied and the jurisdiction of the original suit is ousted and petition should be initiated under Rent Act are not acceptable and hence rejected.
14. Insofar as split tenancy is concerned neither it was the intention of the parties nor the conduct of activities tell regarding split tenancy. Insofar as number of defendants as per the cause title and context and registered post indicate contextually that the defendant had the notice of proceedings and contested the same but claims that there is no notice.
15. The next aspect is regarding denial of title by defendant is that the schedule property is the shop premises. When the tenanted property belonging to a common owner gets divided when it is inherited by heirs of landlord, the analysis of the defendant that two tenancies are generated is not acceptable as there is no basis for it.
16. Insofar as regarding extending of lease by plaintiff, the contention of the appellant-defendant No.3 is, when once rents are accepted the tenancy gets extended. The further contention that the proceedings of eviction based on the termination notice gets terminated and the tenancy gets automatically extended for the next period do not have legal basis. So long the defendant is in occupation of the rented/leased premises he is a lessee and when the lease is terminated under Section 106 of the Transfer of Property Act, the amount if any paid are to be treated as `damages’ during the eviction proceedings and there is no doubt in this connection. For example if it is stated that rents are received after terminating the lease for 11 months, it cannot be considered as renewal of lease for next period of 11 months.
17. The matter also has to be considered in the light of contention of tenancy by holding over. It was also submitted that it is a perpetual tenancy, of course without legal basis.
18. It is necessary to place on record the rights and liabilities in a legal proceedings are determined as on the date of filing of the suit. The generation of income that generates from the schedule property cannot be deprived to the plaintiffs.
19. Considering the context and nature of the proceedings, contentions of the parties and provision of law it requires to be noted that the extension for example when the lease is for a particular period and rent or premium or damages whatever is accepted by landlord, the defendant cannot claim the protection available to that of a regular tenant under the relevant provisions of law applicable.
20. When a lease is for a period of 12 months or more it requires to be made in writing and proper stamp duty shall be paid and registration is also required. Even such a valid and registered lease, when tenancy is terminated and if rents are received, it is not proper to hold that lease is further extended for another 12 months in case rent for the subsequent month is received. If such kind of development is recognized it leads to unhealthy subverting of provisions of Stamp Act and Registration.
21. Thus there is no concept of creation of lease for a period of choice or a particular period by mere acceptance of rents. As the contention regarding waiver of notice was repeatedly submitted it is necessary to make it abundantly clear when the rents are paid on demand when the proceedings for eviction is in vogue. They do not create tenancies if at all the termination is waived at the most may happen by withdrawal of proceedings and when the matter is being under contest this cannot be called as surrender of rights of eviction.
22. Formerly Karnataka Rent Control Act 1961 even provided for eviction of tenant-respondent if he fell in arrears of rent according to Section 29 of the said Act.
23. In the over all context and circumstances of the case the grounds urged by the appellant in denying the jural relationship, split tenancy, property deemed to have been bifurcated into two pieces, the proceedings are not maintainable under Transfer of Property Act, 1882 in the light of Karnataka Rent Act, 1999. Rents being accepted has resulted in renewal of tenancy and the plaintiff had no locus standi to initiate eviction proceedings are not acceptable.
24. I find no valid reason to interfere with the impugned Judgment and decree passed by the learned trial Judge.
Appeal is dismissed.
Judgment and decree dated 14.02.2008 passed in O.S.No.2457/1999 by the I Additional City Civil and Sessions Judge, Bengaluru, CCH-2 is confirmed.
At this stage, it is submitted by the learned counsel for appellant that even subsequent to the decree of eviction, rents are being paid and the arrears of rents are fully settled as per order dated 08.01.2018.
When quantifying due or amount payable the same shall be decided during enquiry under Order 20 Rule 12 of CPC.
Learned counsel for appellant submits that he requires one year time to approach the Hon’ble Supreme Court and seeks for time. Learned counsel for plaintiff-respondents would submit that the defendant No.3 has been squatting over the property since 1989 and not entitled to continue for any further period.
In the circumstances I find a period of 90 days from today would be sufficient to vacate the schedule property and hand over vacant possession of the schedule property.
Ordered accordingly.
Sd/- JUDGE SBN