IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No.949 OF 2018 BETWEEN Sri. M.Chandran, S/o. Manikyam, Aged about 68 years, Residing at No.3, 1st Cross, Ayyappa Garden, Near Mico Factory Bannerghatta Road, Adugodi, Bengaluru-560030. …Appellant (By Sri. J.M.Rajanna Shetty, Advocate) AND 1. Smt. Ayeesha @ Sudha, W/o. Late Saleem, Aged about 45 years, 2. Sri. Juwaiz @ Sonu, S/o. Late Saleem, Now atained majority.
Both are R/at No.1, 1st Floor, 1st Cross, Ayyappa Garden, Near Mico Factory, Bannerghatta Road, Adugodi, Bengaluru-560030. …Respondents (By Smt. Philomena Ross, Advocate for R1, R2- served) This RFA is filed under Section 96 of CPC 1908 against the judgment and decree dated 28.03.2018 passed in O.S.No.6932/2015 on the file of the LXIV Additional City Civil and Sessions Judge (CCH-65), Bengaluru City, dismissing the suit for ejectment.
This RFA coming on for final hearing this day, the court delivered the following:
JUDGMENT The plaintiff in the suit O.S.6932/2015 has preferred this appeal aggrieved by the judgment and decree dated 28.3.2018 whereby the suit for ejecting the respondents was dismissed.
2. The plaintiff initiated a suit to eject the defendants from a residential premises situated in the first floor of property bearing no.1, corporation no.1/ 13-1, 1st Cross, Ayyappa Garden (Pothalappa Garden), near Mico Factory, Bannerghatta Road, Adugodi, Bengaluru-30 (for short referred to as ‘plaint schedule property’). It is the case of the plaintiff that he is the absolute owner of the plaint schedule property and the defendants are his tenants on a monthly rent of Rs.12,500/-. The tenancy period is for a period of 30 days commencing from first day of every calendar month. The first defendant’s husband, namely Saleem took the plaint schedule property on rent and after his death, the defendants continued there as tenants. Defendants became irregular in paying the rents. They stopped paying the rent from January 2015. In spite of repeated demands, they did not pay the rent and therefore the plaintiff got issued a notice to the defendants and terminated the tenancy. The defendants did not receive the notice. Therefore, the plaintiff instituted a suit for their ejection and also for damages at the rate of Rs.18,000/- per month.
3. The defendants admit the plaintiff to be the absolute owner of the plaint schedule property. But, they deny that they are tenants under him. Their specific contention is that on 15.7.2009, the plaintiff entered into an agreement of sale with Mr. Saleem, the husband of the first defendant for selling the plaint schedule property to him for a total consideration of Rs.30,00,000/-. The plaintiff received this amount from Saleem and put him in possession of second floor of the house in part performance of the contract. First defendant’s husband died on 6.2.2013. Thereafter, the defendants requested the plaintiff to repay Rs..30,00,000/- to them as they were unable to fulfill the other terms of the transaction. Therefore, the defendants have contended that they are not the tenants under the plaintiff. They have also stated that if Rs.30,00,000/- is returned, they are ready to vacate the plaint schedule property.
4. The trial court framed the following issues : -
1) Whether plaintiff proves that, defendant No.1 is the tenant of the suit premises?
2) Whether plaintiff further proves that tenancy terminated by issuance of notice?
3) Whether plaintiff proves that defendants have not paid rent amount as contended in plaint?
4) Whether court fees paid is sufficient?
5) Whether plaintiff is entitled for the relief sought for?
6) What Order or Decree?
5. Plaintiff himself adduced evidence as PW1 and produced 12 documents as per Exs. P1 to P12. The first defendant adduced evidence as DW1 and produced 8 documents as per Exs. D1 to D8. The trial court, after appreciating the evidence, came to the conclusion that relationship of landlord and tenant between the plaintiff and defendants has not been established and therefore dismissed the suit.
6. Assailing the findings of the trial court, the learned counsel for the appellant/plaintiff argues that the trial court has given reasons which are not sustainable according to law. It has held that Ex.P10, the rent agreement, has not been proved and it is not possible to be accepted. It is his argument in this regard that the defendants did not file written statement until the plaintiff tendered his evidence in examination- in chief. Since written statement had not been filed, there was no occasion for the plaintiff to produce the rent agreement. Only when the defendants filed the written statement disputing the relationship, the plaintiff had to produce the rent agreement. The trial court has disbelieved the evidence of PW1 and noticed that the stamp paper for preparing the rent agreement was purchased on 15.6.2009. Even if the rent agreement is ignored, it remains a fact that the ownership of the plaintiff is not disputed and that the defendants have failed to establish their specific contention about coming into being of agreement of sale. The trial court has not taken into consideration two important documents as per Exs.P11 and P12. In these two documents, the defendants clearly admit that they are the tenants under the plaintiff in respect of the plaint schedule property. Without discussing the evidence produced by the plaintiff, the trial court erroneously dismissed the suit of the plaintiff. He further argues that it is not enough if the defendants contend about existence of agreement of sale, they are required to further prove that there was surrender of tenancy. If this aspect is not proved or established by the defendants, they should be held to be tenants only and in support of this argument, he has placed reliance on the judgment of the Supreme Court in the case of Dr.H.K.Sharma vs Shri Ram Lal [LAWS (SC) 2019 1 76]. He argues that the trial court has not appreciated the evidence properly and has not applied the law in the proper perspective. Appeal requires to be allowed and suit decreed.
7. Learned counsel for the respondents argues that agreement of sale came into existence when the first defendant’s husband was alive. Plaintiff received Rs.30,00,000/- from the first defendant’s husband and allowed him to occupy the plaint schedule property in part performance of the contract. The trial court impounded the agreement of sale. Therefore, the agreement could not be produced. Now the defendants are ready to vacate the plaint schedule property if the plaintiff returns to them Rs.30,00,000/-. The trial court is justified in holding that there was no relationship of landlord and tenant between the plaintiff and the defendants in view of the agreement of sale. If according to the plaintiff there was a rent agreement, it should have been produced in the first instance. Ex.P10 is a created and concocted document. Rightly, the trial court has disbelieved the said document. Therefore, the judgment of the trial court need not be interfered with.
8. I have considered the arguments of the learned counsel for appellant and the respondents and perused the records. The ownership of the plaintiff over the plaint schedule property is not disputed. All that the defendants contend is that Mr. Saleem, husband of first defendant and father of defendant no.2 entered into an agreement of sale with the plaintiff on 15.7.2009 and therefore they have pleaded that the relationship of landlord and tenant does not exist. In this view of the matter, the burden is on the plaintiff to prove the relationship. Issue no.1 pertains to proving relationship. PW1 is the plaintiff. In the first instance he produced only 7 documents as per Exs. P1 to P7. The first four documents, Exs.P1 to P4 pertain to ownership of the plaintiff over the plaint schedule property. It is not disputed and therefore there is no need to refer to these documents. On 27.1.2016 the plaintiff produced the rent agreement as per Ex.P10.
Now if the cross-examination of PW1 is perused, a suggestion has been given to him admitting the rent agreement. The clear answer of PW1 is “It is true to suggest that since the date of rent agreement, the defendants are residing in the said premises along with Salem”. This is a positive suggestion given to PW1. The trial court has disbelieved Ex.P10 mainly for the reason that its date of execution is shown as 1.6.2009 whereas the stamp paper for preparing it was purchased on 15.6.2009. If purchase of stamp paper and date of execution of the stamp paper are taken into consideration, it is obvious that a doubt arises with regard to genuineness of this agreement and probably for this reason, the trial court has given that finding. But, clause (3) of the rent agreement clearly states that the duration of tenancy is 11 months commencing from 1.6.2009, after which the same may be extended by mutual consent on agreed terms. Going by this clause (3), it is possible to opine that probably the date of execution of agreement is wrongly shown as first day of June 2009 instead of 15th of June 2009. The trial court has given another reason that the plaint does not contain any reference to the execution of this rental agreement and therefore no importance could be given to this document in the absence of pleading. This finding also cannot be said to be erroneous. Be that as it may.
9. The defendants have put forward an agreement of sale dated 15.7.2009. Their clear contention is that the first defendant’s husband entered into an agreement of sale with the plaintiff to purchase the plaint schedule property. In this regard, DW1 has filed an affidavit in lieu of examination-in chief. When the agreement of sale was sought to be marked, it appears that the said document was impounded by the court finding the said document insufficiently stamped. Therefore, the agreement of sale has not been marked. Undoubtedly the defendants could establish the agreement of sale by producing other evidence and such an evidence has also not been produced, rather DW1 admits in the cross- examination that after the death of her husband, she did not demand the plaintiff to execute the sale deed. Even her husband did not institute a suit for specific performance based on the agreement. Therefore, it is to be stated that there is no evidence regarding agreement of sale at all. But, the trial court has recorded findings that DW1 has unequivocally stated that they are ready to quit and deliver the vacant plaint schedule property if the plaintiff is prepared to return earnest money of Rs.30,00,000/-. The trial court holds this contention of the defendants is probable to be accepted. It has held further that the defendants are in possession not as tenants. I do not find that this finding of the trial court is legally justifiable. When the trial court impounded the document and sent the same to the Deputy Commissioner, it is quite obvious that there is no proof with regard to agreement of sale. It is not the case of the defendants that after impounding of the document they made good the deficit stamp duty and produced agreement of sale once again. When the agreement of sale is not before the court, based on an averment made in the written statement, the trial court should not have drawn inference that defendants are not the tenants of the plaintiff. Even assuming for the sake of argument that the first defendant’s husband did enter into agreement of sale with the plaintiff and thereby the defendants are justified in taking up such a contention, still it is a matter to be proved that after coming into being the agreement of sale, there was surrender of lease. In the case of Dr.H.K.Sharma (supra), the Hon’ble Supreme Court has clearly laid down the proposition of law in this regard as below : -
“24. The question, which arises for consideration in these appeals, is when the lessor and the lessee enters into an agreement for sale/purchase of the tenanted premises where the lessor agrees to sell the tenanted premises to his lessee for consideration on certain conditions, whether, as a result of entering into such agreement, the Jural relationship of lessor and the lessee in relation to the leased property comes to an end and, if so, whether it results in determination of the lease.
25. In other words, the question that arises for consideration is when the lessor enters into an agreement to sell the tenanted property to his lessee during the subsistence of the lease, whether execution of such agreement would ipso facto result in determination of the lease and severe the relationship of lessor and the lessee in relation to the leased property.
26. In our considered opinion, the aforementioned question has to be decided keeping in view the provisions of Section 111 of the TP Act and the intention of the parties to the lease whether the parties intended to surrender the lease on execution of such agreement in relation to the tenanted premises or they intended to keep the lease subsisting notwithstanding the execution of such agreement.
27. Chapter V of the TP Act deals with the leases of Immovable property. This chapter consists of Section 105 to Section 117.
28. A lease of an immoveable property is a contract between the lessor and the lessee. Their rights are governed by Sections 105 to 117 of TP Act read with the respective State Rent Laws enacted by the State.
29. Section 111 of the TP Act deals with the determination of lease. Clauses (a) to (h) set out the grounds on which a lease of an immoveable property can be determined.
30. Clauses (e) and (f) with which we are concerned here provide that a lease can be determined by an express surrender; in case, the lessee yields up his interest under the lease to the lessor by mutual agreement between them whereas Clause (f) provides that the lease can be determined by implied surrender.
31. This Court in the case of Shah Mathuradas Maganlal & Co. vs. Nagappa Shankarappa Malage & Ors., (1976) 3 SCC 660 considered the scope of clauses (e) and (f) of Section 111 of the TP Act and laid down the following principle in Para 19 as under.
"19. A surrender under clauses (e) and (f) of section 111 of the Transfer of Property Act, is an yielding up of the term of the lessee's interest to him who has the immediate reversion or the lessor's interest. It takes effect like a contract by mutual consent on the lessor's acceptance of the act of the lessee.
The lessee cannot, therefore, surrender unless the term is vested in him; and the surrender must be to a person in whom the immediate reversion expectant on the term is vested. Implied surrender by operation of law occurs by the creation of a new relationship, or by relinquishment of possession. If the lessee accepts a new lease that in itself is a surrender. Surrender can also be implied from the consent of the parties or from such facts as the relinquishment of possession by the lessee and taking over possession by the lessor. Relinquishment of possession operates as an implied surrender. There must be a taking of possession, not necessarily a physical taking, but something amounting to a virtual taking of possession. Whether this has occurred is a question of fact”.
10. Following the above principle if the case on hand is examined, there is nothing on record to show that there was surrender of lease soon after coming into being agreement of sale. There are no other circumstances which evidence the execution of the agreement of sale by the plaintiff in favour of first defendant’s husband. Therefore, this contention taken by the defendants should fail and for this reason it has to be held that the defendants continued to be tenants of the plaintiff after the death of Saleem.
11. As rightly argued by the appellant’s counsel, there are two documents which the trial court has not taken into consideration at all. Ex.P11 is the copy of the complaint made by the first defendant to the police against the plaintiff. In this complaint it is clearly stated that the defendants are staying in the house for the last seven years and that the rent is Rs.12,500/- per month and they have to pay 2 months rent. Ex.P12 is another complaint. These two documents are disputed by the defendants. It is argued vehemently by the respondents counsel that the plaintiff himself created these complaints. It is true that in the examination-in- chief DW1 has stated that Exs. P11 and P12 are concocted and forged documents and that signatures found in both these complaints are not her signatures. Considering the argument of the defendants counsel even if these two documents are ignored, still the plaintiff’s case that the defendants are his tenants stands in view of the defendants failing to establish the agreement of sale.
12. The plaintiff has pleaded about terminating the tenancy by issuing legal notice as per Ex.P5. Exs. P6 and P7 are the postal receipts and Exs. P8 and P9 are the postal cover which have been returned unserved on the defendants. The endorsement made by the post man on these two covers is to the effect “not claimed”. Address written on the postal cover is not disputed. Therefore, there is deemed service of notice about termination on the defendants. When there is valid termination of tenancy, the defendants have to surrender possession to the plaintiff. The learned trial judge instead of appreciating the evidence in right perspective has come to an erroneous conclusion that the defendants are not the tenants of the plaint schedule property. This finding cannot be sustained. Therefore, the impugned judgment needs to be set aside. From the foregoing discussions, I come to the conclusion that the appeal deserves to be allowed. It is ordered accordingly. Decree of the trial court is set aside. Suit is decreed. The defendants are hereby directed to surrender vacant possession of the plaint schedule property within six months from today.
13. Though the plaintiff has claimed damages at the rate of Rs.18,000/- per month, in the facts and circumstances, I am of the opinion that such a relief cannot be granted in the absence of any material. Enquiry in this regard is also not necessary to be ordered.
Sd/- JUDGE ckl