Disposed

Sri G B Vijayakumar v. Sri G K Ramamurthy

Karnataka HC13 Jan 2021RFA/811/2008

Case brief

AI extract

What is this about?

Purchasers sought ejectment from commercial premises after expiry of a twenty-year lease. The court rejected the perpetual-lease defence, allowed the purchasers’ appeals and decreed ejectment with three months to vacate. The tenant’s appeals were disposed of with directions to determine monthly damages through a mesne-profits enquiry.

What did the court decide?

Ejectment suits decreed; vacant possession to be delivered within three months. Monthly damages to be determined by enquiry under Order 20 Rule 12 CPC.

Sri G B Vijayakumar Vs Sri G K Ramamurthy — Landlord and Tenant | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF JANUARY, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO

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R.F.A.No.699/2008 C/W

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R.F.A.Nos.700/2008, 701/2008, 811/2008, 812/2008 AND

813/2008

IN RFA No.699/2008

BETWEEN:

1 . SRI G K RAMAMURTHY S/O LATE.SRI.G.R.KRISHNAMURTHY AGED ABOUT 59 YEARS.

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2 . SMT. G R SHANTHA RAM W/O.SRI.G.K.RAMAMURTHY, AGED ABOUT 52 YEARS,

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BOTH ARE AT No.83, SURVEYOR'S STREET, BANGALORE. ...APPELLANTS

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(BY SRI S S NAGANAND, SENIOR ADVOCATE FOR SRI.M.D.RAGHUNATH,ADVOCATE)

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AND:

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SRI G B VIJAYAKUMAR S/O LATE SRI GANAPATHI HARI BHAT. SINCE DEAD BY LRs.

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1 . SMT.MEENAKSHI BHAT

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W/O LATE SRI GANAPATHI HARI BHAT AGED ABOUT 89 YEARS.

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SMT.SHUBHA V BHAT W/O LATE SRI G B VIJAYAKUMAR AGED ABOUT 60 YEARS.

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3 . SRI TRIVIKRAM V BHAT S/O LATE SRI G B VIJAYAKUMAR AGED ABOUT 40 YEARS.

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ALL R/AT No.24, SHANKAR MUTT ROAD SHANKARAPURAM, BANGALORE – 560 004. …RESPONDENTS

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(BY SRI V SHIVA KUMAR, ADVOCATE FOR R1(a to c)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 2.1.2008 PASSED IN O.S.No.15102/2004 ON THE FILE OF THE XXVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYOHALL, BANGALORE(CCH-20) PARTLY DECREEING THE SUIT FOR EJECTMENT.

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IN RFA No.700/2008

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BETWEEN:

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SRI D R MOHAN BABU S/O LATE SRI D.M.RANGAIAH SETTY AGED ABOUT 56 YEARS BY HIS GPA HOLDER SRI D.R.JAYAKUMAR GUPTA # 786, 'SREENIDHI' 15^TH CROSS 100 FT RING ROAD, J.P.NAGAR, 1^ST PHASE,

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BANGALORE. …APPELLANT

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(BY SRI S S NAGANAND, SENIOR ADVOCATE SRI.M.D.RAGHUNATH,ADVOCATE)

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AND:

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SRI G B VIJAYAKUMAR S/O LATE SRI GANAPATHI HARI BHAT. SINCE DEAD BY LRs.

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1a . SMT.MEENAKSHI BHAT W/O LATE SRI GANAPATHI HARI BHAT AGED ABOUT 89 YEARS.

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1b . SMT.SHUBHA V BHAT W/O LATE SRI G B VIJAYAKUMAR AGED ABOUT 60 YEARS

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1c . SRI TRIVIKRAM V BHAT S/O LATE SRI G B VIJAYAKUMAR AGED ABOUT 40 YEARS.

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ALL R/AT No.24, SHANKAR MUTT ROAD SHANKARAPURAM, BANGALORE – 560 004. …RESPONDENTS

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(BY SRI V SHIVA KUMAR, ADVOCATE FOR R1(a to c)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 2.1.2008 PASSED IN O.S.No.15103/2004 ON THE FILE OF THE XXVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYOHALL, BANGALORE(CCH-20) PARTLY DECREEING THE SUIT BY ENTITLING THE PETITIONER HEREIN FOR RENTALS AT THE RATE OF Rs.5,000/- P.M AND REJECTING THE PRAYER FOR EJECTMENT.

IN RFA No.701/2008

BETWEEN:

1 . SRI G K PRAKASH /O LATE SRI. G.R. KRISHNAMURTHY AGED ABOUT 56 YEARS

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2 . SMT. SANDHYA G PRAKASH W/O SRI G K PRAKASH AGED ABOUT 50 YEARS

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BOTH AT #759/13, 13^TH CROSS 7^TH BLOCK, JAYANAGAR WEST BANGALORE. ...APPELLANTS (BY SRI S S NAGANAND, SENIOR ADVOCATE SRI.M.D.RAGHUNATH,ADVOCATE)

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AND:

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SRI G B VIJAYAKUMAR S/O LATE SRI GANAPATHI HARI BHAT. SINCE DEAD BY LRs.

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1a . SMT.MEENAKSHI BHAT W/O LATE SRI GANAPATHI HARI BHAT AGED ABOUT 89 YEARS.

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1b . SMT.SHUBHA V BHAT W/O LATE SRI G B VIJAYAKUMAR AGED ABOUT 60 YEARS

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1c . SRI TRIVIKRAM V BHAT S/O LATE SRI G B VIJAYAKUMAR AGED ABOUT 40 YEARS.

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ALL R/AT No.24, SHANKAR MUTT ROAD

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SHANKARAPURAM, BANGALORE – 560 004.

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…RESPONDENTS

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(BY SRI V SHIVA KUMAR, ADVOCATE FOR R1(a to c)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 2.1.2008 PASSED IN O.S.No.15104/2004 ON THE FILE OF THE XXVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYOHALL, BANGALORE(CCH-20) PARTLY DECREEING THE SUIT BY ENTITLING THE APPELLANT HEREIN FOR THE RENTALS AT THE RATE OF Rs.5,000/- P.M AND REJECTING THE PRAYER FOR EJECTMENT.

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IN RFA No.811/2008

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BETWEEN:

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SRI G B VIJAYAKUMAR S/O LATE SRI.GANAPATHI HARI BHAT AGED ABOUT 57 YERAS, SINCE DEAD BY HIS LRs.

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1a . SMT.SUBHA V BHAT W/O LATE SRI G B VIJAYAKUMAR AGED ABOUT 69 YEARS

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1b . SRI TRIVIKRAM V BHAT S/O LATE SRI G B VIJAYAKUMAR AGED ABOUT 43 YEARS.

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BOTH ARE RESIDENTS OF No.15/A, 15^TH MAIN 175H CROSS, J P NAGAR BANGALORE – 560 078. AND ALSO AT M/S HARIPRASAD AUTOMOBILES

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No.112/1, SHANKARAPARK SHANKARAPURAM BANGALORE – 560 004.

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...APPELLANTS

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(BY SRI. SHIVAKUMAR, ADVOCATE)

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AND: 1 . SRI G K RAMAMURTHY S/O SRI G.R.KRISHNAMURTHY AGED ABOUT 58 YEARS.

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2 . SMT. S R SHANTHA RAM W/O SRI G.K.RAMAMURTHY , AGED ABOUT 52 YEARS,

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BOTH ARE R/AT No.88, SURVEYOR'S STREET, BANGALORE -560 004.

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…RESPONDENTS

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(BY SRI S S NAGANAND SENIOR ADVOCATE FOR SRI M D RAGHUNATH, ADVOCATE)

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THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF THE CPC, AGAINST THE JUDGMENT AND DECREE DATED 2.1.2008 PASSED IN O.S.No.15102/2004 ON THE FILE OF THE XXVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYOHALL, BANGALORE(CCH-20) PARTLY DECREEING THE SUIT BY ENTITLING THE PLAINTIFFS THEREIN FOR RENTALS AT THE RATE OF Rs.5,000/- P.M FROM THE DATE OF THE SUIT TILL HANDLING OVER OF POSSESSION OF THE PROPERTY IN QUESTION.

IN RFA No.812/2008

BETWEEN:

SRI G B VIJAYAKUMAR S/O LATE SRI.GANAPATHI HARI BHAT AGED ABOUT 57 YERAS, SINCE DEAD BY HIS LRs.

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1 . SMT.SUBHA V BHAT W/O LATE SRI G B VIJAYAKUMAR AGED ABOUT 69 YEARS

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2 . SRI TRIVIKRAM V BHAT S/O LATE SRI G B VIJAYAKUMAR AGED ABOUT 43 YEARS.

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BOTH ARE RESIDENTS OF No.15/A, 15^TH MAIN 175H CROSS, J P NAGAR BANGALORE – 560 078. AND ALSO AT M/S HARIPRASAD AUTOMOBILES No.112/1, SHANKARAPARK SHANKARAPURAM BANGALORE – 560 004.

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...APPELLANTS

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(BY SRI SHIVA KUMAR, ADVOCATE)

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AND:

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SRI D R MOHAN BABU S/O LATE SRI D.M.RANGAIAH SETTY BY HIS GPA HOLDER SRI.D.R. JAYAKUMAR GUPTA No.786, "SREENIDHI", 15^TH CROSS, 100 FT RING ROAD, J.P.NAGAR, 1^ST PHASE,

BENGALURU – 78.

…RESPONDENT

(BY SRI S S NAGANAND SENIOR, ADVOCATE FOR SRI M D RAGHUNATH, ADVOCATE)

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THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF THE CPC, AGAINST THE JUDGMENT AND DECREE DATED 2.1.2008 PASSED IN O.S.No.15103/2004 ON THE FILE OF THE XXVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYOHALL, BANGALORE(CCH-20) PARTLY DECREEING THE SUIT BY ENTITLING THE RESPONDENT HEREIN FOR RENTALS AT THE RATE OF Rs.5,000/- P.M FROM THE DATE OF FILING OF SUIT TILL HANDLING OVER OF POSSESSION OF THE PROPERTY.

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IN RFA No.813/2008

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BETWEEN:

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SRI G B VIJAYAKUMAR S/O LATE SRI.GANAPATHI HARI BHAT AGED ABOUT 57 YERAS, SINCE DEAD BY HIS LRs.

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1 . SMT.SUBHA V BHAT W/O LATE SRI G B VIJAYAKUMAR AGED ABOUT 69 YEARS

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2 . SRI TRIVIKRAM V BHAT S/O LATE SRI G B VIJAYAKUMAR AGED ABOUT 43 YEARS.

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BOTH ARE RESIDING OF No.15/A, 15^TH MAIN 175H CROSS, J P NAGAR BANGALORE – 560 078. AND ALSO AT M/S HARIPRASAD AUTOMOBILES

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No.112/1, SHANKARAPARK SHANKARAPURAM BANGALORE – 560 004.

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...APPELLANTS

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(BY SRI SHIVA KUMAR, ADVOCATE)

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AND:

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1 . SRI G K PRAKASH /O LATE SRI. G.R. KRISHNAMURTHY AGED ABOUT 56 YEARS 2 . SMT. SANDHYA G PRAKASH W/O SRI G K PRAKASH AGED ABOUT 50 YEARS BOTH ARE RESIDING AT #759/13, 13^TH CROSS 7^TH BLOCK, JAYANAGAR WEST BANGALORE. ...RESPONDENTS

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(BY SRI S S NAGANAND, SENIOR ADVOCATE SRI M D RAGHUNATH, ADVOCATE)

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THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF THE CPC AGAINST THE JUDGMENT AND DECREE DATED 2.1.2008 PASSED IN OS No.15104/2004 ON THE FILE OF THE XXVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYOHALL,BANGALORE(CCH-20) PARTLY DECREEING THE SUIT BY ENTITLING THE PLAINTIFFS THEREIN FOR RENTALS AT THE RATE OF Rs.5,000/- P.M FROM THE DATE OF FILING OF THE SUIT TILL HANDLING OVER OF POSSESSION OF THE PROPERTY.

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THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY, THE COURT THROUGH VIDEO CONFERENCE AT BENGALURU DELIVERED THE FOLLOWING:

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JUDGMENT

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These six appeals are arising out of the common judgment and decree dated 02-01-2008 by the learned XXVI Additional City Civil and Session Judge at Mayohall, Bangalore, CCH No.20 passed in three original suits bearing O.S.Nos.15102/2004,

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15103/2004 and 15104/2004 wherein suits are partly decreed. The operative portion of the judgment is as under:

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“All 3 suits of the plaintiffs partly decreed as under:

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The plaintiffs in OS No.15102/2004 are entitled 5,000/- per month rent from the date of the suit till handing over of possession of the property in question.

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The plaintiff in OS No.15103/2004 is entitled rentals at the rate of Rs.5,000/- per month from the date of the filing of the suit till handing over of possession of the property.

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The plaintiffs in OS No.15104/2004 are entitled rentals at the rate of Rs.5,000/- per month from the date of the filing of the suit till handing over of possession of the property.

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The prayer of the plaintiff for adjustment is rejected.

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The plaintiffs are entitled for cost of the suits from the defendant.

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The original judgment is kept in OS No.15102/2004. The copies of the judgment are kept in OS No.15103/04 and 15104/04.

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2. The following tabular representation reveals

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original suit Numbers, filed by whom, date of disposal

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and connected appeal numbers and filed by whom:

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Sl. No.	O.S.No. and filed by whom	Date of Disposal andresult	RFA No. and filed by whom
1.	15102/2004 1.G.K.Ramamurthy 2.Smt.G.R Shantha Ram	2.1.2008 Partly decreed	699/2008 1.G.K.Ramamurthy 2.Smt.G.R Shantha Ram
2.	15103/2004 D.R.Mohan Babu	2.1.2008 Partly decreed	700/2008 D.R.Mohan Babu
3.	15104/2004 1.G.K.Prakash 2.Smt.Sandhya G Prakash	2.1.2008 Partly decreed	701/2008 1.G.K.Prakash 2.Smt.Sandhya G Prakash
4	15102/2004 1.G.K.Ramamurthy 2.Smt.G.R Shantha Ram	2.1.2008 Partly decreed	811/2008 G.B.Vijayakumar Since dead by Lrs.
5	15103/2004 D.R.Mohan Babu	2.1.2008 Partly decreed	812/2008 G.B.Vijayakumar Since dead byLrs
6	15104/2004 1.G.K.Prakash 2.Smt.Sandhya G Prakash	2.1.2008 Partly decreed	813/2008 G.B.Vijayakumar Since dead by Lrs

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Thus, RFA Nos.699/2008, 700/2008 and

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701/2008 are filed by the respective plaintiffs and RFA Nos.811/2008, 812/2008 and 813/2008 are filed by

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the defendant who is common in all the suits.

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In order to avoid confusion and

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overlapping, the parties are addressed in accordance with their rankings and status as held by them before the trial court.

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The suit schedule property in all the suits

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claimed to be belonged to the plaintiffs having purchased the same under the respective registered sale deeds which are as under:

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Sl.No.	OS No. connected RFA No.	Date of Sale deed
1.	15102/2004 RFA No.699/2008	30-08-1990
2.	15103/2004 RFA No.700/2008	15-11-1989
3.	15104/2004 RFA No.701/2008	28-08-1989

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All three suits are filed against the same defendant for ejectment praying to direct the defendant to quit, vacate and deliver vacant possession of the schedule properties and to pay future damages at the rate of Rs.5,600/- per month from the date of suit till surrender of vacant possession to the plaintiffs. The property involved in the suits is the premises bearing No.112/1, situated in Shankar park, Shankarapuram, Bangalore. The defendant is the tenant of the said property and he is running his business.

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In the said property, plaintiffs in OS

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No.15102/2004 have purchased eastern portion of the said property, plaintiff in OS No.15103/2004 purchased middle portion and the plaintiffs in OS No.15104/2004 purchased western portion.

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The facts of the case in all the suits are:

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Originally, the vacant land premises of 4 sites bearing Nos. 44,45,59 and 60 belonged to Sringeri Shankar Mutt and at the time of the purchase by the plaintiffs the property was bearing No.112/1. Originally, the said land was leased to defendant’s father by name Sri.Ganapathi Hari bhat by Sringeri Shankar Mutt as per the registered lease deed from 1.11.1962 and lease was for a period of 20 years on monthly rent of Rs.100/- and he was permitted to install a petrol and diesel pump and also to put permanent structures and fixtures required for the same and he has to remove them when he vacates the land on termination of lease. Subsequently, another rectification lease deed was executed between Sringeri Shankar Mutt authorities and father of the defendant on 2-12-1963 under which, lease period remains 20 years, if he intends to discontinue

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his business and he is at liberty to remove all the machineries installed and he has to receive the payments of value of permanent structures as per Clause 3 of the deed.

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It is further contended that on 20-08-1981

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father of the defendant died and defendant continued the said business and became the tenant even after the expiry of 20 years period. In the year 1989-90 Shankar Mutt authorities sold the entire property in favour of the plaintiffs and the sale of property was intimated to defendant and he was asked to pay the rent of Rs.37/- to plaintiffs. Subsequently legal notice issued by plaintiffs on 17-9-1992 and thereafter, they have filed HRC petitions for eviction and recovery of rents in HRC No.10686/02, 10006/1993, 10098/1993, but the prayer for arrears of rent was allowed. On revision petitions filed, it were disposed of by this court on account of amendment of KRC Act, 1999 and

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thereafter, plaintiffs terminated the tenancy of defendant by legal notice dated 17-12-2020.

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Defendant replied to the same and thereafter, they filed suit for ejectment and mesne profits.

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Defendant common in all the cases entered

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appearance and in substance the contentions are as under:

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Defendant denies the jural relationship between the plaintiffs and himself and defendant denies liability to pay rental rate and area of the property is not certain and properly identified and suits are liable to be dismissed in limine. It is his further defence that plaintiffs have no locus standi to file present cases against the defendants. The rental clause and right of lessee are specifically mentioned in the rectification deed. In this connection, the first lease deed was entered into on 1.11.1962 and it was

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for a period of 20 years and the said document is marked as Ex.P1. There is also another rectification deed dated 2.12.1963. It is further contended that defendant’s father expired on 20-08-1981 and defendant inherited and continued the tenancy and business set up by his father and he denied the period of lease is already expired and that the defendant has continued in occupation of the same. There is also rectification deed dated 2.12.1963. The clause in rectification deed as per Clause 2,3 and 4 are as under:

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“2. If during the term of the lease, the Lessee desires for any reason, to discontinue his business and vacate the premises, he shall be at liberty to remove all the machinery etc., brought by him and shall deliver vacant possession of the premises with all its permanent fixtures standing at the time in fact, after payment of the value of the structures etc., as determined in clause-3.

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The Lessor shall pay to the Lessee, the then market value of the structures standing on the said premises as may be fixed by the Arbitrators selected by consent of both the Lessor and the

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Lessee, at the time when the Lessee vacates the premises.

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If the Lessee intends to vacate at any time on the expiry of term of the lease aforesaid, the Lessor shall pay 75% of the then market value of the structures standing on the aforesaid premises as may be fixed by the Arbitrators as mentioned in the previous clause and on receipt of such price, the Lessee shall remove all his machinery and deliver vacant possession of the premises with the constructions and other buildings aforesaid in proper condition.”

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(i) during the term of the lease its renewal is at the rate of lesser market value; if the lessee chooses to vacate the property they have to clear the value of the super structure at 75%; regarding the right of presumption in respect of the structures put up by him. The lease is for a period of perpetuality and it cannot be terminated. Moreover there is no ground for violation there are no allegations of violations.

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The learned trial judge on the basis of the

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materials before him framed the following issues and

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additional issues in all the three suits as under:

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“1.Whether Plaintiff proves that they have validly terminated the tenancy of the defendant over the suit schedule property?

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Whether the defendant proves that the lease in his over favour is perpetual and indivisible in respect of the suit schedule property?

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Whether the plaintiff prove that they are entitled to claim damages at the rate of Rs.5,000/per month? 4. Whether the plaintiff is entitled to the suit claim?

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What Decree or Order?

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Additional Issues:

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1.Whether the defendant proves that the suit of the plaintiff is not maintainable as contended at para 9 of the written statement?

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Whether the defendant proves that inview of the nature of the lease, the suit of the plaintiff is not maintainable in respect of a portion of the leased preemies?

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Whether the defendant further proves that the suit schedule property has not been properly described in the plaint?

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Whether the defendant further proves that the suit schedule property is not capable of being bifurcated from the total premises leased to the defendant without disturbing the remaining portion of the leased premises?

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Whether the defendant proves that in the absence of apportionment of rent as per section 109 of the T.P.Act, the plaintiff is not entitled to claim rent mentioned in the plaint?”

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The trial was held in common and learned

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trial judge was accommodated with the oral and

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documentary evidence as under:

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Plaintiffs:

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PW.1 G.K.Ramamurthy PW. D.R.Jayakumar Guptha PW.3 G.K.Prakash

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Ex.P.1 lease deed Ex.P.2 rectification deed Ex.P.3 letter of attornment Ex.P.4 letter of attornment issued to the defendant Ex.P.5 reply Ex.P.6 legal notice Ex.P.7 Cc of the reply Ex.P.8 special notice Ex.P.9 legal notice Ex.P.10 postal acknowledgment Ex.P.11 original reply to the legal notice Ex.P.12 HRC files Ex.P.13 HRC files Ex.P.14 HRC files

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Defendant:

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DW.1 G.B. Vijayakumar

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Ex.D.1 to 8: 8 photos marked as Exs. R2 to R9 in HRC No.10006/93

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Ex.D.9 : CC of order copy in writ petition No.41941/02

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The schedule property in all these suits

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situate at Sree Shankar Mutt area, Shankarpuram, Basavanagudi, Bengaluru, originally belonged to Sree Shankar Mutt, Sringeri. However, the ownership of Sree Shankar Mutt Sringeri is not in dispute. The plaintiffs in the above three original suits are none other than the purchasers of portion of the schedule properties under the sale deeds. The registered sale deeds executed by Shankar Mutt in favour of the said plaintiffs are morefully mentioned in the table.

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The plaintiffs claim that after the purchase of the schedule property, the due attornment of tenancy was effected both by the plaintiffs and their vendor Sree Shankar Mutt. The attornment notice dated 10.9.1990 is as under:

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SRINGERI Date:10.9.1990

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BY.REGD.POST/ACK.DUE.

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Mr.G.B.Vijayakumar Prop:Sri Hariprasad Automobiles Shankara Park Shankarapuram BANGALORE – 560 004.

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112/1,

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Please refer to our earlier letter dated 5.3.1990 and 3.8.1990 duly acknowledged by you.

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We write to inform you that we have sold the remaining portion of the property bearing No.112/1, Shankara Park, Shankarapuram, Bangalore – 4 measuring 48’ x 77’ together with our rights in the structures standing in the said property for valuable consideration in favour of Sri G.K.Ramamurthy and Smt.G.R.Shantha Ram, No.57/1, Kanakapura Road, Basavangudi, Bangalore -01 undor a registered deed of sale dated 3—8-1990 and therefore you are required to pay the rent of Rs.37/- which is the rent payable by you for the portion referred to above to the Purchasors Mr.G.K. Ramamurthy and Smt.G.R.Shantha Ram from 30.8.90.

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We further write to inform you that as already stated in our earlier letter dated 3.8.90, you are liable to pay us a rent of Rs.287/- upto the end of July, 90 and additional sum of Rs.37/- being the rent for the month of August 9 totalling to Rs.324/- and we callupon you to pay said amount immediately. We reiterate the statements made our earlier letters dated 5.3.90 and 3.8.90.

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This is for your information and compliance.

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Yours faithfully,

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c.c.to:Sri G.K.Rama Murthy & Smt.G.R.Shantha Ram, No.57/1, Kanakapura Road Basavanagudi Bangalore – 560 004.

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In order to avoid confusion, it is necessary

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to mention that though there are four letters of attornment they converse only in respect of three properties as stated above. The properties are all commercial premises. It is stated earlier when the Karnataka Land Control Act of 1961 was in force and suit came to be filed in HRC Nos.10686/1992; 10006/1993 and 10098/1993 and they were dismissed on the ground that there is arbitration clause. Thereafter, HRRP were preferred which are numbered as HRRP No.548/2000, 549/2000 and 591/2000 before this court. However, even the said HRRP petitions were dismissed on the ground that area of the property with reference to plinth area being more than 14 sq. meters.

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¶196

As Karnataka Rent Control Act is not

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applicable to the subject properties, original suits named above in OS No.15102/2004, 15103/2004 and 15104/2004 were initiated by the respective plaintiffs against the defendant.

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Though the present appeals are under Section 96 of CPC being the regular first appeals, substantial question of law also are involved which are as under:

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(i) When the prescribed period of tenancy/ lease ended by the year 1982 and lessor being continued, does it mean it has a legal effect of perpetual lease?

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(ii) When the property sold includes a portion of the total property of the plaintiffs whether there is embargo for apportionment of income from the property in proportionate by the vendor of the purchasers in respect of their respective portion?

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The schedule properties are non residential

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and they are commercial buildings. There is also no dispute regarding the plinth area of the schedule

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property in each of the case. The schedule property in

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all the suits are as under:

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In OS No.15102/2004(RFA 699/2008 & RFA 811/2008)

¶207

Premises bearing No.112:1 Shankarapark, Shankarapuram, Bangalore -4, bounded on the;

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East by : Shankar Mutt Road West by : Portion of property No.112/1, 112/2 Shankarapark, Shankarapuram, Bangalore sold to Sri D.R.Mohan Babu and thereafter portion of property No.112/1, 112/2 Shankarapark, Shankarapuram, Bangalore sold to Sri G.K.Prakash and thereafter cross Road (Shankar Mutt Parallel Road)

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North by : Cross Road (Chikkanna Garden II Cross Road) South by : Private property No.112.

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OS 15103/2004(RFA NOs.700/2008 & 812/2008:

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Premises bearing No.112:3 Shankarapark, Shankarapuram, Bangalore -4, bounded on the;

¶212

East by : Remaining portion of property No.112/1, 112/1 Shankara park, Shankarapuram, Bangalore, thereafter Shankarmutt Road)

¶213

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West by : Cross Road (Shankar Mutt Parallel Road)

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North by : Cross Road (Chikkanna Garden II Cross Road)

¶216

South by : Private property No.112.

¶217

OS 15104/2004(RFA No.701/2008 & RFA 813/2008:

¶218

Premises bearing No.112.2 (Portion of old No.112/11 Shankarapark, Shankarapuram, Bangalore -4, bounded on the;

¶219

East by : Remaining portion of property No.112/1 & 112/1 Shankara park, Shankarpuram, Banglore, thereafter Shankarmutt Road.

¶220

West by : Portion of property No.112/1, 112/2 Shankarapark, Shankarapuram, Bangalore sold to Sri C K Prakash and thereafter cross Road (Shankar Mutt Parallel Road)

¶221

North by : Cross Road (Chikkanna Garden II Cross Road)

¶222

South by : Private property No.112.”

¶223

The learned Senior Counsel Sri.S.S.

¶224

Nagananda for Sri M.R.Raghunath, appearing for the

¶225

appellants/plaintiffs would submit that the trial court

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failed to understand the principles governing the eviction and the scope of Section 106 of the Transfer of Property Act. Further the trial court failed to understand the law relating to attornment of tenancy and the rights assured by the Transfer of Property Act to a purchaser. The learned trial judge failed to understand the existence of property and the description of the schedule and non denial by the defendant. Only aspect is, the clear measurement in terms of square foot or square meter is not mentioned in the plaint schedule. Learned Senior Counsel further submit the rights of defendant did not travel beyond tenancy that too till 1982 after which renewal is not made.

¶228

Learned counsel Sri. V. Shiva Kumar for defendant/respondent would submit that the suits are liable to be dismissed on the very maintainability itself. There is no jural relationship between the

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parties. The area of the schedule properties are mentioned ambiguously and it is not identifiable and does not liable to pay rents to the plaintiffs. The tenancy is terminable at the option of the lessee, but the lessee does not want to exercise the option. The learned counsel also submits it is a perpetual lease.

¶231

Learned counsel for plaintiffs would submit that measurement of the schedule property is mentioned in para-3 of the plaint. The schedule property in all the suits are components in the said measurement. On perusal of para-3 of the plaint in the suits, the relevant portion is as under:

¶232

In OS No.15102/2004:

¶233

The plaintiffs submit that they purchased portion of property bearing No.112/1, situate in Shankarpark, Shankarapuram, Bangalore-4, measuring East to West: 48 feet and North to South: 77 feet.

¶234

In OS No.15103/2004:

¶235

¶236

The plaintiff submit that he purchased portion of property bearing No.112/1, situate in Shankarpark, Shankarapuram, Bangalore-4, measuring East to West: 52 feet and North to South: 77 feet.

¶237

In OS No.15104/2004:

¶238

The plaintiffs submit that they purchased portion of property bearing No.112/1, situate in Shankarpark, Shankarapuram, Bangalore-4, measuring East to West: 42 feet and North to South: 77 feet.

¶239

Insofar as Rules of Eviction is concerned, it

¶240

is already recognized by the Statute that wherever the tenancy is in respect of a non residential property in the specified term, the HRC petition is not maintainable if the plinth area exceeds 14 square meters. Moreover, there is no dispute in any of the cases regarding the existing of plinth area of 14 square meters. As per the lease deed, rent fixed at the time of entering into agreement/lease is Rs.100/-.

¶241

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Now the question is, the plaintiffs claim that termination notices in all the three cases are issued.

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Ex.P3 is the letter written by Shankar Mutt dated 18-9-1990 and Ex.P6 is the letter written by the plaintiffs. Fact of intimating the sale, effect of attornment and the duty of the defendant in view of the legal effect of attornment is not in dispute.

¶244

Another question raised by the defendant is that there is no proper description of properties and the identity of each of the schedule property is not absolutely explained and the rent payable for each portion is concerned, there is utter confusion. In the circumstances, it is necessary to observe that the lease deed Ex.P1 is dated 1.11.1962 and the father of the defendant took the property on lease. However, later by virtue of the death of his father defendant

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got the rights under devolution of rights which includes tenancy as well.

¶247

Another factor is regarding the

¶248

apportionment of income. It has come in the course of submission that for any variation of the properties, that means three schedule properties totally for each exceeds the measurement of the properties purchased by the plaintiffs. The apportionment of the same will be done at their level. Now the defendant in this connection questions the authority of apportionment. The legal position would be simple, when once sold, seller looses the ownership in favour of the purchaser.

¶249

The rights and duties of seller and purchaser are governed by the Transfer of Property Act. If the said property is in possession of the tenant and if he wants to question in case where the entire property measurement is more than the property sold, it is not for him to audit the intentions and arrangements of

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the plaintiffs and the vendor regarding the apportionment. What would there would be, defendant and plaintiffs are there to obey the order of the final disposal of the case. In this case, the question of stating that there is no identification of the property is concerned, the plaintiffs relied upon the decision in the case of Silva Uddin Vs. Nagaraju - reported in ILR 2004 Karnataka 4782, wherein ,

¶252

Head Note A is as under:

¶253

“(A) THE TRANSFER OF PROPERTY ACT, 1882 – SECTION 109 – KARNATAKA RENT ACT, 1999 – SECTIONS 3 (e) AND 46(1) – THE TRANSFER OF PROEPRTY ACT, 1882 – SECTION 109 – RIGHT OF TRANSFEREE UNDER – HELD – In view of transfer of ownership, the transferee becomes the owner of the premises – The tenant cannot dispute the right of the transferee landlord to maintain an Eviction Petition under the Rent Act or to claim rent- Attornment by the tenant is unnecessary to confer validity to the transfer of the lessor’s rights – Section 109 protects payments of rent by the tenant to the transferor without notice of the transfer, as Section 109 creates a statutory attornment.”

¶254

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The term ‘lease’ as defined, is a transfer of

¶256

specific interest of possession when that comes to an end in the manner known to law, there is no necessity for tenant to follow up what happens next. Further, it is a strong conception that it is a lease in perpetuality. To take out the matter from basic level that the tenancy or rent are concerned, the Karnataka Rent Control Act is not applicable. Hence the same is excluded.

¶257

The terms of lease is concerned, it may be monthly lease or yearly lease or perpetual lease. Insofar as monthly lease is concerned, irrespective of the property whether commercial or residential, notice of 15 days is to be given to terminate the tenancy. Prior to the amendment of the statute there used to be serious exclusion regarding ending of monthly lease period. Now the provision is as simple as 15

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days notice is to be given in respect of the tenancy which are in force.

¶260

In case of yearly lease, the notice is of six

¶261

months duration. In case of lease for manufacturing process then also it extends to six months. Here there is no serious contention regarding termination of tenancy because there is substantial ground that defendant is not entitled to remain in possession of the property. Now the point is, very often there are mistaken notion in the field of leases. Lease is defined in Section 105 of Transfer of Property Act as under:

¶262

“ 105. Lease defined.—A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. Lessor, lessee, premium and rent defined.—The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent. To be

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No doubt, lease exceeding 12 months has

¶265

to be duly registered and stamped. Here the lease deed is for 20 years. Whether this lease or any other similar kind of lease, where the landlord receives the rent after lapse of lease period of 20 years, does it amounts to renewal of lease, if so to what extent. The answer would be very simple. As per the statute, lease cannot be created by extension. If once the lease period is over even if the rents are accepted, it is illogical and meaningless to accept even that the lease period is extended for next period which is equivalent to previous period. When such being the case, perpetual lease which is normally considered as 99 years lease is the contention seriously canvassed by the defendant. But no explanation or justification or defence is placed before the Court either as of oral evidence or as of documentary evidence to show that it is a perpetual lease.

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The further circumstance of the case is, the

¶268

perpetual lease could only be placed next to sale of the property. That is also ruled out. The ownership of the property was admitted in favour of Sree Shankar Mutt and the same Shankar Mutt sold the property to the plaintiffs. Lease was effected in the year 1962 for a period of 20 years. There onwards there was no extension. However, the defendant was continued to be in occupation and the rent at present is stated to be Rs.125/- per month from the entire property. The rental agreed is at Rs.125/- for all the three portions, i.e., collectively at Rs.125/-.

¶269

Any how, the measurement stated in the

¶270

sale deed is 11704 sq.ft. (152 x 75 +79/2 = 152x 77 = 11704). Thus no doubt when the termination of tenancy notices is issued, from the very day the relationship is not jural. However, the plaintiffs are volunteered to issue notice. In the substance, it is to

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be noted that the relationship of landlord and tenant lasted for 20 years and tenant continued thereafter as well and original suits are filed by the purchasers of the schedule property there has been due attornment. Learned trial judge dismissed the suits. The learned trial judge has observed in paragraph 39 of his judgment as under:

¶273

“39. The recitals in Exs.P.1 and 2 clearly disclose thought he initial period of 20 years tenancy is fixed in Ex.p.1. The clauses 2 to 5 of rectification deed Ex.P.2 the option is given only to the lessee to continue the lease or to vacate the premises. No right is given to the lessor to terminate the tenancy. It is an admitted fact that father of the defendant has obtained the land on lease and thereafter constructed the building by spending huge money and running business in the said premises. The original tenant(Shankar mutt) at no time have attempted to evict the defendant or his father. The plaintiffs were well aware of the lease and purchased the property at their risk. The plaintiffs have to obey the terms and conditions of the lease deed Exs.P 1 and 2. Only after defendant expressed his intention to vacate the premises, the plaintiffs have no right to seek eviction. Hence the lease in favour of defendant is in the nature of permanent lease and the same cannot be terminated by issuance of notice. The rulings furnished by the plaintiff are not applicable to the present facts of the case.

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Therefore, I answer issue No.1 negatively and issue No.2 affirmatively and additional issue No.2 affirmatively.”

¶276

According to him lease cannot be

¶277

terminated by notice. Further in paragraph 43, of his Judgment the learned trial judge has observed as under:

¶278

“43. It is also the case of the defendant that the suit schedule property has not been described properly. On perusal of the evidence and records, each plaintiffs in 3 suits claims separate portion of leased property. As per the lease deed Exs.P 1 and 2, the leased lands measures North-South as under:-

¶279

On the eastern side it is only 75 feet. But plaintiffs in OS No.15102/04 who are claiming eastern portion of the schedule property state that the portion purchased by them measures North-South 77 feet. But on the eastern side it is only 75 feet as per lease deeds. On the other hand, the plaintiffs in OS No.15104/2004 claims Western portion, they claim on the western portion of the lease property is 77 feet only. But according to Ex.P 1 and 2 on the west it is 79 feet (2 feet more). The plaintiffs in OS No.15104-04 claims western portion of the leased property.”

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Even paragraph 43 does not convey meaning.

¶282

At the level of trying the civil suit, the learned trial judge should have looked into the lease deed, period mentioned as clear as by itself the term of years. There is whole non application of mind and mis understanding of the provision of law. By application of principles unknown to law, he has given a new theory for eviction suit which are not acceptable on the face of it. Further the trial judge has directed the defendant to pay rent of Rs.5,000/- which is another mistake. Order 20 Rule 12 CPC contemplates for an enquiry into mesne profits in the context of the case. The very mesne profit implies that income earned by a person from the property during his un lawful possession. It is in this connection, after the termination of tenancy plaintiffs were entitled for the damages. The very usage of the word rent only reflect non awareness of Rules of tenancy. In this

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connection, I find Order xx Rule 12 CPC should have been invoked, wherein the damages after the termination of tenancy in respect of the schedule property should have been considered after taking into necessary aspects.

¶285

The appeals preferred by the defendant are against the direction in fixing the rent at Rs.5,000/- is not proper and it is to be set aside. I agree with the same. But not on the reasons canvassed by the defendant. The defendant is liable to pay damages. However, it may not be fair under the circumstances to fix the amount of the damages and the same shall be determined by an enquiry under order 20 Rule 12 CPC. Thus, I find perversity, capriciousness, infirmity and non application of mind in the judgment and decree passed by the learned trial judge.

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Learned counsel for defendant also

¶288

submitted that so far defendant has not chosen to vacate the schedule property. In this connection, it is necessary to observe for vacating of schedule property when ground is established, the option of defendant is insignificant.

¶289

For the aforesaid reasons, I proceed to pass the following:

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ORDER

¶291

(i) Appeals filed by the plaintiffs in RFA

¶292

Nos. 699/2008, 700/2008 and 701/2008 are allowed.

¶293

(ii) Appeals filed by the defendant in RFA Nos.811/2008, 812/2008, 813/2008 are

¶294

disposed of with a direction that rate of damages payable per month is to be determined through an enquiry under Order 20 Rule 12 CPC.

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(iii) In the light of the allowing of the appeals filed by the plaintiffs stated above, the common judgment and decree passed by the trial court is set aside and the suits of the plaintiffs are decreed.

¶297

(iv) The defendant is hereby ordered to quit, vacate and deliver the vacant possession of the schedule property to the plaintiffs within three months from this day.

¶298

(v) Insofar as valuation of super structure or otherwise or payment of rents are concerned, they are not within the scope of the present suits. It is for the plaintiffs and defendant to have recourse before the proper forum as stated because the very aspect of payment, adjustment or demolition or

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apportionment whatever would arise only when

¶301

the defendant is ordered to be evicted.

¶302

Sd/JUDGE

¶303

tsn*

Sri G B Vijayakumar v. Sri G K Ramamurthy

Case brief

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Sri G B Vijayakumar v. Sri G K Ramamurthy

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