Dismissed

Raju B v. Nilesh O Jain

Karnataka HC5 Jul 2021RSA/2022/2018

Case brief

AI extract

What is this about?

The High Court of Karnataka rejected a second appeal by a tenant challenging the eviction of his family from premises. The court held there was no substantial question of law to entertain the appeal regarding the validity of a 100-year lease. However, granting relief in the ends of justice, the tenet was given three months to vacate the property.

What did the court decide?

Tenant granted three months from the date of order to vacate and deliver vacant possession of the suit property to the plaintiffs.

Raju B Vs Nilesh O Jain — Landlord and Tenant | Karnataka HC (2021)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶2

DATED THIS THE 5^TH DAY OF JULY, 2021

¶3

BEFORE

¶4

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

¶5

R.S.A.No.2022/2018(EJT)

¶6

BETWEEN:

¶7

RAJU B S/O BASAVARAJU (LATE) AGED ABOUT 63 YEARS, PRESENTLY R/AT #715, NEAR BUS STAND LALITHADRIPURA VILLAGE, VARUNA HOBLI MYSORE TALUK-570 028.

¶8

...APPELLANT

¶9

(BY SRI MOHAN B K, ADVOCATE)

¶10

AND:

¶11

NILESH O JAIN S/O OMPRAKASH AGED ABOUT 32 YEARS, R/AT #9/6, YELLAMMA GARDEN LAKSHMI ROAD, SHANTHINAGAR BANGALORE-560 027.

¶12

NANJEGOWDA M S S/O SIDDEGOWDA (LATE) AGED ABOUT 58 YEARS, R/AT #2 B-5, VASU LAYOUT RAMAKRISHNA NAGAR MYSORE-570 017.

¶13

¶14

DHIRAJ HEGDE S/O K A HEGDE AGED ABOUT 46 YEARS, R/AT #51 3^RD MAIN 3^RD CROSS, BANK COLONY BOGADI, MYSORE-570 026.

¶15

H D SANATH KUMAR S/O H B DHARAMENDRAPPA (LATE) R/AT #780, ‘MEGHAKASHA’ 10^TH MAIN 2^ND CROSS 1^ST STAGE VIJAYANAGAR MYSORE-570 017.

¶16

DR. M N RAJAGOPAL SHETTY S/O NARAYANAPPA (LATE) AGED ABOUT 68 YEARS, R/AT #3127, ‘SWARA’ VIVEKANANDA ROAD, 2^ND CROSS SOUTHERN EXTN., KOLLEGAL-517 440.

¶17

...RESPONDENTS

¶18

(BY SMT. LEELA P DEVADIGA, ADVOCATE)

¶19

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 28.04.2018 PASSED IN R.A.No.188/2014 ON THE FILE OF THE II ADDITIONAL DISTRICT JUDGE MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 19.03.2013 PASSED IN O.S.No.1496/2011 ON THE FILE OF THE PRINCIPAL FIRST CIVIL JUDGE AND JMFC, MYSORE.

¶20

THIS RSA COMING ON FOR ADMISSION THIS DAY THROUGH VIDEO CONFERENCING, THE COURT DELIVERED THE FOLLOWING:

¶21

¶22

JUDGMENT

¶23

This appeal is directed against the judgment and decree dated 28.04.2018 passed in R.A.No.188/2014 by the II Additional District Judge, Mysore, dismissing the appeal and confirming the judgment and decree dated 19.03.2013 passed in O.S.No.1496/2011 by the Principal First Civil Judge and JMFC, Mysore.

¶24

In order to avoid confusion and

¶25

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

¶26

Originally, plaintiffs filed a suit against the defendant seeking eviction of the defendant from the suit schedule premises by terminating tenancy in O.S.No.1496/2011 before the Principal First Civil Judge and JMFC Mysore. The said suit was decreed on 19-3-2013. Being aggrieved by the same, defendant filed a regular appeal in R.A.No.188/2013 before the

¶27

¶28

II Additional District Judge, Mysore. The said appeal came to be dismissed on 28-4-2018 thereby confirming the judgment and decree passed by the learned trial judge.

¶29

The facts of the case are concerned, O.S.No.1496/2011 was instituted by the plaintiffs for the eviction of the defendant from the suit premises by terminating tenancy and defendant has filed suit in O.S.No.126/2011 for permanent injunction. Both the suits were clubbed and evidence was recorded and by common judgment the suit of the defendant in OS No.126/2011 came to be dismissed. The said judgment was not challenged by defendant and it has attained finality. However, regular appeal was filed against the judgment and decree passed in O.S.No.1496/2011. The operative portion of the judgment of the trial court is as under:

¶30

¶31

“The suit in O.S. 126/2011 is dismissed.

¶32

The suit in O.S.1496/2011 is decreed with cost.

¶33

The defendant in O.S.1496/2011 is hereby directed to quit and deliver the vacant possession of the suit schedule property within two months from the date of this order in favour of the plaintiffs. Failing which, the plaintiffs are at liberty to get back the possession through the process of the court.

¶34

The defendant shall also pay arrears of rentals of Rs.2,000/- to the plaintiffs for the period of November

¶35

2010 to August 2011.

¶36

There shall be separate enquiry for mesne profit under Order 20 Rule 13 of the CPC.

¶37

The original judgment shall be kept in O.S. 126/2011 and its copy shall be kept in O.S. 1496/2011.

¶38

Draw decree accordingly.”

¶39

The remaining facts which are relevant for

¶40

the case is that, plaintiffs purchased the schedule

¶41

property on 27-8-2010 and earlier defendant’s father

¶42

was a tenant and after his death, defendant continued to be the tenant in the schedule property.

¶43

¶44

Plaintiffs’ vendor after the purchase by plaintiffs attorned the tenancy infavour of the plaintiffs. Before the purchase of schedule property by the plaintiffs, defendant was paying rent of Rs.200/- per month. As per the information passed on by the vendor of the plaintiffs defendant was not regular in payment of rent. Whenever, plaintiffs demanded the defendant to pay the rent, he rushed to the court and in October 2010 the defendant approached the plaintiffs and requested for one year time and plaintiffs agreed to the terms subject to execution of new lease deed with revised rent of Rs.5,000/- and agreed to execute the lease agreement, for 11 months and paid rent of Rs.5,000/- to one of the plaintiffs and requested to prepare lease agreement but protracted to execute the lease agreement on one or the other reasons and to pay rents as agreed. When plaintiffs asked him to execute the lease deed, he filed OS No.126/2011 for

¶45

¶46

permanent injunction. Thereafter, plaintiffs issued notice on 11-7-2011 under Section 106 of the Karnataka Property Act terminating the tenancy and sought for eviction of the defendant from schedule property and deliver the possession. The said notice was neither replied nor complied by the defendant. Thereafter the suit was filed.

¶47

The contention of the defendant before the

¶48

trial court is that, there is no termination of tenancy nor he is a defaulter. Earlier one of the plaintiffs refused to receive the rent and agreed for extension of lease for one year and that he agreed to pay rent of Rs.5,000/- per month and the status of the building is dilapidated. His specific plea is that, his father was tenant in the schedule property to the erstwhile landlord. It is also stated in his written statement that property was settled by its owner in favour of his daughter Mushrath jan Begum 13-3-1972 by M.J.

¶49

¶50

Mohammed Yakoob who redeemed the mortgage from said Hanumantha Rao and extended the tenancy of the defendant by executing lease agreement in writing on 15-6-1977. According to which, the lease was for 100 years from 15-6-1977 and defendant cannot be evicted. Thereafter notice was issued by plaintiffs. The legal notice and contentions therein is denied by the defendant and according to him he is not bound by the legal notice.

¶51

On the basis of the pleadings and contentions of both the parties, the trial court framed the following issues for adjudication of the matter:

¶52

“1. Whether the plaintiffs prove that they having purchased the suit schedule property from its vendor attorned the tenancy of the defendant?

¶53

Whether the plaintiffs prove that the defendants are the tenants of the suit schedule premises on a monthly rentals at Rs.5,000/- p.m.?

¶54

Whether the plaintiffs prove that they have lawfully terminated the tenancy of the defendant by issuing valid quit notice?

¶55

¶56

Whether the defendant proves that tenancy is for a period of 100 years commencing form 15.6.1977, therefore, termination of notice issued by the plaintiffs is not maintainable under law?

¶57

Whether the plaintiffs prove that the defendant is liable to pay arrears of rentals of Rs.50,000/- as prayed?

¶58

Whether the plaintiffs prove that the defendant is liable to pay damages at the rate of Rs.1,000/- per day?

¶59

Whether the plaintiffs is entitled for ejectment of the defendant from the suit schedule property as prayed?

¶60

What order or decree?”

¶61

The first issue is regarding attornement of

¶62

tenanc, termination of tenancy and plea of the defendant regarding lease for 100 years, arrears of rent of Rs.50,000/-, damages of Rs.1,000/- per day and entitlement of possession by the plaintiffs.

¶63

The learned trial judge was accommodated

¶64

with the oral evidence of PW1-B. Raju and documentary evidence of Exs.P1 to 59 on behalf of

¶65

¶66

plaintiffs and oral evidence of DW1-Deeraj Hegde and documentary evidence of Exs.D1 to D6 on behalf of defendants.

¶67

Upon conclusion of the trial, learned trial judge decreed the suit of the plaintiffs. Aggrieved by the same, defendant has preferred regular appeal in R.A.No.188/2014 which came to be dismissed on 28-4-2018 by the first appellate court. Being aggrieved by the said judgment and decree, the defendant is before this court in this second appeal.

¶68

It is submitted by learned counsel for appellant/defendant that schedule property is a portion of huge complex which is a lodge. The entire building was originally belonged to one M.I.Mohammad Yakoob who earlier filed eviction petition against his father in HRC No.325/1963 and that came to be dismissed on 1-12-1965. Thereafter,

¶69

¶70

owner of the building Sri. Mohammad Yakoob mortgaged the premises to one K.R.Hanumantha rao and informed the father of the defendant to tender the rentals to the mortgagee since 17-8-1967. Thereafter, the said K.R.Hanumantha Rao filed eviction petition in HRC No.267/1967 and later it was withdrawn and once again he filed HRC 163/1968 which was dismissed 16-4-1970.

¶71

On 13-3-1972 the owner of the property M.J. Mohammed Yakoob made a settlement deed allocating all his properties to various members of his family and by virtue of the same, the suit property was allotted to the share of one Smt. Mushrath Jan Begum who redeemed the mortgage from said Hanumantha rao and extended the tenancy of the defendant. In the mean while, lease deed was executed by the legal representatives of Mohammed

¶72

¶73

Yakoob in favour of M/s.Hotel Indra bhavan

¶74

represented by its partners Sri. Om Prakash.

¶75

Learned counsel for appellant/defendant further submits that lease deed relied on by the defendant is not registered and also it is not written on a stamp paper and it is written on white paper on 15-6-1977. The plaintiffs have stated that notice was issued and the same is not disputed.

¶76

Here, it is necessary to mention that

¶77

Section 106 of Transfer of Property Act provides for termination of lease. The said Section reads as under:

¶78

“106. Duration of certain leases in absence of written contract or local usage.—

¶79

(1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable,

¶80

¶81

on the part of either lessor or lessee, by fifteen days' notice.

¶82

(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in subsection (1) shall commence from the date of receipt of notice.

¶83

(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.

¶84

(4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.]”

¶85

The option of termination is available to the

¶86

land lord in case of breach of terms of contract. In this case, the defendant claim that the lease was executed by the vendor of the plaintiffs and previous vendor has accepted the same. The present legal

¶87

¶88

notice is issued by the plaintiffs who are subsequent purchasers claiming that the lease has been terminated and upon issuance of termination notice, in the normal circumstances, lease stands terminated when there was a existing tenancy. The further question is, whether there exists a tenancy. Secondly, defendant claim that he is in the schedule property on the basis of a lease for 100 years which is more than a perpetual tenancy according to the defendant.

¶89

It is to be noted that defendant claims that lease deed was executed on 15-6-1977 and according to him he has his lease rights till 14-6-2077. It is the special plea by the defendant. He claims that lease deed executed by vendor of the plaintiffs is not terminated. The lease of immoveable property is provided in Transfer of Property Act.

¶90

¶91

Under the Registration Act, lease deed for 12 months or more than that requires to be duly registered. Invariably lease deed is to be on the stamp paper. Thus the defendant banks on the special plea of extended lease for 100 years which has to be established. The ingredients of lease deed are to be established in the manner known to law. Even if lease deed is executed, there is a duty and penalty, but the same is not contemplated for registration.

¶92

Learned counsel for defendant submits that the document was admitted before the trial court, thus it could not have been objected later. Further, the defendant was ready to pay the duty and penalty regarding the registration. It is necessary to mention that duty and penalty if provided for stamp duty marked document has no relevancy regarding the duty and penalty. The stamp duty to be looked into is already provided under the Stamps Act. More

¶93

¶94

particularly marking of the same does not validate or invalidate. Further, there is no provision for collecting the duty and penalty to cure the defect of non registration. With all that, mere marking of the document will not be of any avail to the defendant to claim that the document is admitted document and its evidentiary value has to be considered.

¶95

In the overall context and circumstances of the case, the tenancy has come to an end and the trial judge dismissed the case of the defendant and it is confirmed in the judgment and decree passed by the appellate court in Regular appeal. In order to admit the appeal under Section 100 CPC, it is pre requisite that there shall exists substantial questions of law and in the absence of which, the appeal is liable to be rejected.

¶96

¶97

Further, the view of finding of fact cannot be re-appreciated or changed by court trying the second appeal.

¶98

Learned counsel for appellant submits that when the existence of lease was admitted by the vendor of the plaintiffs for 100 years, is it necessary for proving the same. In this connection, no doubt, Section 58 of the Indian Evidence Act, states that the facts admitted need not be proved. However, basically, it is the inference of the defendant.

¶99

However, learned counsel for appellant relied on para No.15 in the judgment passed in R.A.No.188/2014 which reads as under:

¶100

“15. Assuming for a moment that Ex.P1 was duly executed by erstwhile landlord, I determine the admissibility and legality of it on duration of tenancy. It is not the case of the appellant/tenant that on 15-6-1977 when his demand for leasing the property for 100 years was accepted by the erstwhile landlord Smt. Mushrath Jan Begum the same was reduced in the form of lease deed. According to him, when she gave no objection for installation of shutters she

¶101

¶102

acknowledged/admitted leasing the property for 100 years. Hence, there is no document like original lease deed evidencing the duration of lease between appellant and said Mushrath Jan Begum.”

¶103

Thus, the defendant infers that the

¶104

existence of lease by virtue of the consent given for installation of shutters to the schedule property by the erstwhile land owner (vendor of the plaintiffs). There is difference between the question of law and question of fact. The question of law is one for that ready answer is there in the statute book. Question of fact is a state of affairs. When the question of law depends on position and it is not open for the parties to seek contrary. However, in this case, there is no direct admission regarding existence of the lease deed for 100 years between the plaintiffs’ vendor and defendant. Learned counsel for appellant would submit that the building consists of different shops and lodge as well and he may be given option to

¶105

¶106

stay in the schedule property till the eviction of other portion are effected. In adjudicating the case on merits the court cannot entertain such prayer. However, the defendant may be given a time period of three months.

¶107

In the absence of existence of substantial question of law, the appeal is devoid of merits and it is rejected.

¶108

At this point, the learned counsel for the appellant submits that learned trial judge has given time of two months to vacate the schedule property and the said order has been stayed by the first appellate court and prays for six months time to vacate and deliver the same.

¶109

However, in the ends of justice and equity and considering the present pandemic situation, I find it is just and proper to grant a time of three months

¶110

¶111

from today to vacate and deliver the vacant possession of the schedule property to the plaintiffs.

¶112

Sd/JUDGE

¶113

tsn*

Raju B v. Nilesh O Jain

Case brief

What is this about?

What did the court decide?

Raju B v. Nilesh O Jain

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri. Bettaswamygowda Vs Sri. Ramaiah

Sri G Prabhukumar Vs Smt. Bhagya B

Nazeer Ahamed Vs Smt Zubedha Bi

Sri. Naveen Kumar. R Vs Manjula

G Krishnappa Vs R Narayanaswamy

Smt Chandrakala Vs Sri Lokesh