Mrs Prema vs Diocese Of Mangalore
2023 Latest Caselaw 1465 Kant

                           1


    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 21ST DAY OF FEBRUARY, 2023

                         BEFORE

            THE HON'BLE MRS. JUSTICE M G UMA

    REGULAR SECOND APPEAL NO. 1241 OF 2012 (POS)

BETWEEN:

1. MRS. PREMA
   ADULT
   W/O LATE A. RAMACHANDRA
   R/A SEMINARY VIEW, JEPPU
   3RD CROSS, MANGALORE - 575 002.

2. MR. PRAVEEN
   ADULT
   S/O LATE A. RAMACHANDRA
   R/A SEMINARY VIEW, JEPPU
   3RD CROSS, MANGALORE - 575 002.

3. MR. NAVEEN
   ADULT
   S/O LATE A RAMACHANDRA
   R/A SEMINARY VIEW, JEPPU
   3RD CROSS, MANGALORE - 575 002.

                                           ... APPELLANTS

(BY MR: I. THARANATH POOJARY, SENIOR ADVOCATE A/W
    MR: THARUN KUMAR, ADVOCATE)

AND:


1. DIOCESE OF MANGALORE
   REPRESENTED BY ITS BISHOP
   REV. DR. ALOYSIUS D'SOUZA
   S/O LATE MATHIAS D'SOUZA
   R/A BISHOP'S HOUSE
   KODIALBAIL, MANGALORE - 575 003.
                                 2


2. SHARATH KUMARI @ PUSHPA
   ADULT
   D/O LATE RAMACHANDRA
   PREMGHAR, SEMINARY VIEW
   JEPPU, 3RD CROSS
   MANGALORE - 575 002.

                                           ... RESPONDENTS

(BY MR: CYRIL PRASAD PAIS, ADVOCATE FOR C/R-1
    V/O DT: 22.03.2013 NOTICE TO R-2 IS DISPENSED WITH)

      THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 20.4.2012 PASSED IN
R.A.NO.143/2006 ON THE FILE OF THE II ADDITIONAL SENIOR
CIVIL JUDGE, MANGALORE, D.K, DISMISSING THE APPEAL FILED
AGAINST THE JUDGMENT AND DECREE DATED 13.2.2006 PASSED
IN O.S.NO.202/2003 ON THE FILE OF THE II ADDITIONAL CIVIL
JUDGE (JR.DN) MANGALORE.


     THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 03.02.2023 COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

Defendant Nos.1 to 3 have preferred this second appeal

being aggrieved by the judgment and decree dated

13.02.2006 passed in OS No.202 of 2003 on the file of the

learned II Additional Civil Judge (Jr.Dn.), Mangaluru DK

(hereinafter referred to as 'the Trial Court' for brevity),

wherein, the suit of the plaintiff is decreed with costs and

defendant Nos.1 to 4 were directed to deliver the vacant

possession of the land covered under the premises bearing

New Door No.17-5-228 (Old No.17-727) situated in TS

No.728 of Jappinamogaru Village (for short 'the schedule

premises'), by removing the superstructure and to pay arrears

of rent, mesne profits with interest, which was confirmed vide

judgment dated 20.04.2012 passed in RA No.143 of 2006 on

the file of learned II Additional Senior Civil Judge, Mangaluru,

DK (hereinafter referred to as 'the First Appellate Court' for

brevity), and also directing defendant Nos.1 to 3 to deliver

the vacant possession of the suit schedule premises by

allowing the cross appeal and dismissing the appeal preferred

by the defendants.

2. For the sake of convenience, parties are referred

to as per their status and rank before the Trial Court.

3. Brief facts of the case are that, the plaintiff filed

the suit against defendant Nos.1 to 5 seeking direction to the

defendants to deliver the vacant possession of the suit

premises or in the alternate to deliver the vacant land covered

under the premises bearing New Door No.17-5-228 (Old

No.17-727) situated in TS No.728 of Jappinamogaru Village,

by removing the superstructure and also for arrears of rent of

mesne profits. It is contended by the plaintiff that it is the

absolute owner of the schedule premises. Originally,

defendant No.5 had obtained the suit property along with

other properties from the plaintiff on lease. Further,

defendant No.5 in turn leased the suit property in favour of

one Ramachandra, the husband of defendant No.1 and father

of defendant Nos.2 to 4, on monthly rental basis. The dispute

had arisen between defendant No.5 and the said

Ramachandra and a suit was initiated. During the pendancy

of the suit, Ramachandra died and defendants succeeded to

his interest. The Court held that defendant Nos.1 to 4 are the

tenants liable to pay rent of Rs.75/-. Therefore, the said

judgment and decree is binding on defendant Nos.1 to 4.

4. It is contended that defendant No.5 surrendered

the suit premises with other properties in favour of the

plaintiff and has registered the surrender deed dated

11.06.2001. Therefore, defendant Nos.1 to 4 have become

the tenant under the plaintiff and they have attorned the

tenancy in its favour. Since the plaintiff was not willing to

continue their tenancy, terminated the same by issuing the

legal notice dated 05.12.2002 and calling upon them to

surrender the suit premises on or before 31.12.2002 and

called upon defendant Nos.1 to 4 to pay the mesne profits at

the rate of Rs.500/- per day from 01.01.2003. It is

contended that defendant Nos.1 and 3 have received the quit

notice, but defendant Nos.2 and 4 have deliberately refused

to receive the same. Defendant Nos.1 and 3 have issued

reply on 30.12.2003 taking false and frivolous contentions.

Therefore, defendant No.5 is also arrayed as a party to the

suit to decide the lis in his presence. It is stated that the

defendants have failed to pay the rent and the mesne profits

and they have failed to vacate the premises in question.

Therefore, the suit is filed for direction to the defendants to

deliver the vacant possession of the suit premises with arrears

of rent, mesne profits and interest.

5. During the pendancy of the suit, the prayer in the

plaint was amended to add an additional prayer seeking

alternative relief of directing defendant Nos.1 to 4 to deliver

vacant possession of the land under the building referred to in

the schedule.

6. On service of notice, defendant No.1 filed the

written statement denying the contention taken by the

plaintiff. It is contended that Ramachandra, husband of

defendant No.1 and father of defendant Nos.2 to 4 obtained

the vacant site in Sy.No.728 of Kankanady Village, wherein

the plaint schedule is situated from Rev. Brother General,

Olivet Congregation - defendant No.5 on 01.10.1970. The

building situated in the schedule land was not belonging to

defendant No.5 or to the plaintiff. Even at the time of leasing

the vacant land, originally one Oswald Kamath was the owner

of the building in question which was later purchased by

Francis Fernandes in a court auction that was held on

12.10.1970 in Execution case No.181 of 1970 on the file of

the Court of Munsiff at Mangaluru. The said sale was

confirmed on 23.10.1970. The said building was purchased

by Ramachandra from Francis Fernandes during October 1970

for valuable consideration. After the death of Ramachandra,

defendant Nos.1 to 4 being his legal representatives have

jointly inherited the building and therefore, they are the

absolute owners in possession of the plaint schedule building

and they are the tenants of only the site.

7. It is contended that HRC No.72 of 1976 on the file

of I Additional Munsiff, Mangaluru and Rent Revision No.142

of 1986 on the file of the II Additional District Judge,

Mangaluru, DK were held between defendant No.5 and

Ramachandra, wherein a categorical finding is recorded that

rent of Rs.75/- per month is not for the building but only in

respect of the site underneath the building. Under such

circumstances, there is no question of terminating the

tenancy in respect of suit premises either by the plaintiff or by

defendant No.5. Receipt of legal notice and issuance of reply

is admitted. It is contended that since the plaintiff has no

right over the premises in question, the suit is not

maintainable. Hence, it is prayed that the suit be dismissed

with costs.

8. Defendant Nos.2 and 3 filed a memo adopting the

written statement filed by defendant No.1.

9. On the basis of these pleadings, the Trial Court

framed the following issues:

"1. Whether the plaintiff proves that it is a religious and charitable institution as pleaded in the plaint?

2. Whether the plaintiff proves that he is the landlord and the defendants No.1 to 4 are the tenant in respect of schedule premises as pleaded in the plaint?

3. Whether the plaintiff proves that he has terminated the tenancy of the defendants No.1 to 4 as per notice dated 5-12-2002 as pleaded in the plaint?

4. Whether the plaintiff proves that the defendants are in unauthorized occupation of the schedule premises from 1-1-2003 as pleaded in the plaint?

5. If so, whether the plaintiff is entitled for possession of the schedule premises as prayed for?

6. Whether the plaintiff is entitled for arrears of rentals of Rs.1,425/- per day with 12% interest p.a. form the defendants as prayed for?

7. Whether the plaintiff is entitled for mesne profit at Rs.500/- per day with interest 12% p.a. from 1-1-2003 till defendant vacates the schedule premises as prayed for?

8. What order or decree?"

10. Plaintiff examined PWs.1 and 2 and got marked

Exs.P1 to P17 in support of its contention. Defendant No.3

examined himself as DW1 and got marked Exs.D1 to 7 in

support of their contention. The Trial Court after taking into

consideration all these materials on record, answered issue

Nos.1, 3 to 6 in the Affirmative and held issue No.2 in the

Affirmative only with regard to the vacant site covered under

the premises. Accordingly, the suit of the plaintiff is decreed

directing defendant Nos.1 to 4 to deliver the vacant

possession of the land covered under the premises bearing

(old D.No.17-727) New Door No.17-5-228 with arrears of rent

at Rs.1,425/- with interest at 6% p.a. and also to pay the

mesne profits i.e., Rs.1,000/- per month from 01.01.2003 till

handing over the delivery of the land and also to pay interest

at 6% p.a.

11. Being aggrieved by the impugned judgment and

decree passed by the Trial Court, defendant Nos.1 to 3 have

preferred RA No.143 of 2006 and the First Appellate Court

after taking into consideration all these materials on record,

came to the conclusion that the plaintiff is entitled for vacant

possession of the suit premises and accordingly dismissed the

appeal preferred by defendant Nos.1 to 3 and allowed the

cross appeal of the plaintiff regarding arrears of rent, mesne

profits and the interest and the judgment and decree of the

Trial Court was upheld. Being aggrieved by the same,

defendant Nos.1 to 3 have preferred this appeal.

12. Heard Sri I Tharanath Poojary, learned senior

advocate for Sri Tharun Kumar, learned counsel for the

appellants and Sri Cyril Prasad Pais, learned counsel for

caveator-respondent No.1. Perused the materials including

the Trial Court records.

13. Learned senior advocate for the appellants

submitted that admittedly Ramachandra, the husband of

defendant No.1 and father of defendant Nos.2 to 4 had

obtained the vacant site on lease as per Ex.P2. The premises

in question referred to as the superstructure was the subject

matter in Execution No.181 of 1970 and in OS No.518 of 1968

and one Francis Fernandes purchased the said superstructure

in the court auction as evidenced by the sale certificate -

Ex.D6. The said suit was for recovery of money filed by

Oswald Kamath against Sikander Saheb, who had built the

superstructure which was attached by the Trial Court before

the judgment i.e., in the year 1968 itself. On 13.10.1970, the

husband of defendant No.1 purchased the said superstructure

from Francis Fernandes under Ex.D7. The auction sale was

confirmed by the Court. He also contended that defendant

No.5 had filed HRC No.72 of 1967 against Ramachandra for

recovery of rent of Rs.125/- and for eviction. Defendant

No.5 never claimed ownership over the superstructure that

was standing on the land. The said HRC petition came to be

dismissed holding that defendant No.5 is not the owner of the

superstructure, against which, defendant No.5 filed rent

revision petition in RRP No.142 of 1986 which also came to be

dismissed by the revisional Court vide judgment dated

30.11.1992. The said judgment is binding on the plaintiff and

defendant No.5 and they cannot claim the ownership over the

superstructure against the finding recorded by the revisional

Court. Therefore, the plaintiff is estopped from contending

that he is entitled for vacant possession of the land and the

superstructure.

14. Learned senior advocate submitted that the quit

notice issued by the plaintiff and defendant No.5 is bad since

even according to the plaintiff, defendant No.5 has already

surrendered the suit premises in its favour and moreover the

claim made in the quit notice regarding ownership of the

superstructure is against the finding recorded by the Rent

Tribunal. Therefore, the defendants are not liable to vacate

and hand over the possession of the superstructure nor they

are liable to pay any rent or mesne profits with regard to the

same.

15. Learned senior advocate further submitted that

even though the husband of defendant No.1 got the schedule

land on lease, subsequently purchased the superstructure

under Ex.D7. Since the lease hold right in respect of the

superstructure is merged with the ownership of the

superstructure, the plaintiff is not entitled to seek any relief in

respect of the same.

16. Learned senior advocate also submitted that since

the plaintiff is claiming ownership over the land and the

defendants have proved their ownership over the

superstructure, there is dual ownership in respect of the land

and the building and therefore, the plaintiff cannot seek

recovery of the land independently of the superstructure. It is

contended that now the land under the superstructure are

indivisible and until the superstructure perishes, the plaintiff is

not entitled for any relief. He also contended that the plaintiff

and defendant No.5 have never chosen to challenge Exs.D6

and 7. They have also not challenged the finding recorded by

the Rent Tribunal and the revisional Court in HRRP and RRP.

Under such circumstances, the plaintiff is not entitled for any

of the reliefs.

17. Learned senior advocate further submitted that

the Trial Court committed an error in decreeing the suit of the

plaintiff directing the defendants to remove the superstructure

and to hand over the vacant possession of the property. It is

stated that the plaintiff filed the cross appeal in Regular

Appeal. But the cross appeal was never numbered nor it finds

place in the cause title to the impugned judgment in the RA.

There is no discussion about the said cross appeal in the

entire judgment, but strangely in the operative portion of the

order, the First Appellate Court erroneously held that the

cross appeal filed by the plaintiff is allowed. Therefore, no

separate appeal is preferred against the said order allowing

the cross appeal and the same is challenged in the present

second appeal.

18. Learned senior advocate placed reliance on the

decision in T Lakshmipathi and Others P Nithyananda

Reddy and others1, in support of his contention that the

doctrine of merger applies to the facts of the present case.

He placed reliance on the decision of the Madras High Court in

M.P.S. Palauiappa Chettiar and Ors Vs V.E.St.Vairavan

Chettiar2 in support of his contention that the land and the

superstructure are inseparable as the superstructure stood on

the land in question and the word 'building' includes not

merely the superstructure but the land on which it stands. He

also placed reliance on R G Hiremath and another Vs T

Krishnappa3, to contend that there may be a separation of

the ownership of the building, ownership of the land and it

cannot be the Rule of law that whatever is affixed or built on

the soil becomes a part of it and is subjected to the same

rights as the property of the soil itself. He also placed

reliance in the decision in Hari Pratap and another Vs

Ramgopal and another4, in support of his contention that

the defendants are in joint possession of the suit premises

and they are not liable to be evicted since they are the owners

(2003) 5 SCC 150

1962 0 Supreme (Mad) 201

ILR 1977 KAR 1016

AIR 1961 Rajasthan 18

of the superstructure. He placed reliance on the decision in

Swamy Athmananda and Others Vs Sri Ramakrishna5, to

contend that in view of the categorical finding recorded by the

Rent Tribunal and the Revisional Court in HRC and the

revision petition, it creates a bar with regard to the same plea

that is now raised by the plaintiff and it amounts to res

judicata and the plaintiff is estopped from contending

otherwise.

19. Placing reliance on the above decisions, the

learned senior advocate further contended that to sustain the

plea of res judicata, it is not necessary that all the parties to

both the litigations must be common. It is sufficient if the

issue raised is between the same parties or between the

parties under whom any of them claim. Therefore, the learned

senior advocate contended that Exs.D6 and 7 makes it clear

that the plaintiff was never the owner of the superstructure

and the said superstructure was purchased by Ramachandra,

the father of defendant Nos.2 to 4. The plaintiff has no right

over the same to seek eviction. Moreover, there is a clear

finding in RRP No.142 of 1986 regarding the ownership of the

(2005) 10 SCC 51

superstructure which bars the present suit filed by the

plaintiff. Learned senior advocate therefore, contends that

the Trial Court as well as the First Appellate Court have

committed an error in passing the impugned judgment and

decree, which are liable to be set aside in this appeal.

20. Learned senior advocate further submitted that

initially at the time of admitting the appeal only a formal

substantial question of law was framed. In view of the

contention taken by both the parties, specific substantial

question of law with regard to Exs.D6 and 7 and the

contention of the defendants that they cannot be evicted from

the superstructure to which they are the owners, are to be

framed. Accordingly, he prays for formulating appropriate

substantial questions of law and to allow the appeal in the

interest of justice.

21. Per contra, learned counsel for the respondents

opposing the appeal submitted that even though the

appellants contend about the dual ownership in respect of the

land and the superstructure, there is no such pleadings

pleaded by the defendants in the written statement. No

counter claim is advanced to claim the ownership over the

superstructure in the written statement. Therefore, for the

first time such contention cannot be raised in the second

appeal. He further contended that as per Ex.P3 in HRC No.72

of 1976, no finding is recorded regarding the ownership of the

defendants on superstructure. Therefore, there is no res

judicata.

22. He also contended that admittedly Ramachandra,

the husband of defendant No.1 and father of other defendants

entered into lease deed as Ex.P2 on 01.10.1970. Under the

said document, he undertook not to claim any equity over the

land or the premises. Therefore, the defendants are estopped

from raising any plea about the superstructure. He refers to

the evidence of DW1 to contend that there is a categorical

admission by the witness that he has not exercised any right

of ownership over the superstructure such as payment of

revenue. On the other hand, witness categorically admitted

that defendant No.5 is the owner of even the superstructure.

Therefore, the defendants cannot claim any ownership over

the superstructure. On the other hand, the plaintiff produced

Exs.P10 to 12 - the tax paid receipts, according to which, the

tax was paid even to the building. Thus, it is clear that the

plaintiff exercised the right of ownership over the building.

23. Learned counsel further submitted that the

plaintiff is not a party in Execution Case No.181 of 1970,

whereunder, the superstructure was said to have been

auctioned and was purchased by Francis Fernandes. To a

pointed query raised by the Court, learned counsel for the

respondents admitted that it was one Sikander Saheb who put

up the superstructure and not the plaintiff or defendant No.5.

However, he contended that the appellants have never raised

claim over the superstructure nor they are having any

document to support such claim. Since the plaintiff is not a

party to the proceedings, Exs.D6 and 7 are not binding on

him.

24. Learned counsel also contended that even though

cross appeal filed by the plaintiff is allowed by the First

Appellate Court, no separate appeal is preferred by the

defendants. Therefore, the finding in the cross appeal is

binding on the defendants. Therefore, he prays for dismissal

of the appeal with costs.

25. Initially, the appeal was admitted vide order dated

03.09.2012 and the following substantial question of law was

formulated:

"Whether the 1st Appellate Court is justified in reversing the findings of the Trial Court on Issue No.2 that the appellants are the owners of the superstructure, the schedule premises having purchased the same in a Court auction as per Exs.D.6 and D-7?"

26. Since specific pleas are raised during the course of

the arguments by both the learned counsels, I deem it proper

to formulate the following substantial questions of law for

consideration in place of the above:

"1. Whether the First Appellate Court committed an error in ignoring the sale certificate Ex.D6 and purchase certificate Ex.D7 which were part of the previous proceedings before the Court of competent jurisdiction in HRC No.72 of 1967 and RRP No.142 of 1986.

2. Whether there is dual ownership over the land and the superstructure as contended by the appellant.

3. Whether there is merger of lease hold right over the land with the ownership of the

superstructure to disentitle the plaintiff to seek eviction and vacant possession of the suit premises until the superstructure perishes?"

27. Learned senior advocate for the appellants

contended that the First Appellate Court committed an error

in allowing the appeal and decreeing the suit of the plaintiff

by ignoring the sale certificates - Exs.D6 and D7 which were

part of previous proceedings in HRC No.72 of 1976 and the

revision petition in RRP No.142 of 1986. Admittedly, a

petition was filed seeking eviction of tenant - Ramachandra,

the husband of appellant No.1 and father of appellant Nos.2

and 3 under Section 21(1)(a) of the Karnataka Rent Control

Act in HRC No.72 of 1976 before the Rent Court. It was the

contention of the petitioner in the said petition that, the

tenant was liable to pay rent of Rs.125/- per month pursuant

to the agreement dated 01.10.1970 i.e., Ex.P2 but he failed

to pay the rent as agreed and thereby he is liable to be

evicted. The tenant contested the petition. The Rent Tribunal

on the basis of the materials available on record, dismissed

the petition with a categorical finding that the petitioner has

not proved the arrears of rent at the rate of Rs.125/- per

month. It is held that the materials on record disclose that

even though the rent fixed under Ex.P2 is Rs.125/- per

month, it was found that the tenant was paying only Rs.75/-

per month and the same was being accepted for several

years. The Rent Tribunal did not find any explanation about

this discrepancy. However, it found support to the contention

of the tenant that he is the owner of the superstructure

standing on the land in question. The Tribunal has also

considered the receipts which are now produced as Exs.D6

and 7 and came to the conclusion that the superstructure was

purchased by the tenant immediately after execution of Ex.P2

- lease deed dated 01.10.1970. This order of the Tribunal

was challenged by the petitioner in RRP No.142 of 1986.

28. The revisonal Court considered the contention of

the petitioner as to whether the contention of the landlord

that the rent agreed in respect of the petition premises was

Rs.125/- per month and answered it in the Negative and

confirmed the order of rent Court. Therefore, it is clear that

in the previous proceedings there is a categorical finding

recorded between the parties that the rent agreed was not

Rs.125/- per month, but it was only Rs.75/-. The plaintiff in

the present suit is required to explain as to why the rent of

only Rs.75/- was being collected when as per Ex.P2, the

tenant is liable to pay rent of Rs.125/- per month. There is

absolutely no reasonable explanation except re-iterating that

the rent is Rs.125/- per month only, which is also not

supported by any other material except Ex.P2. There is no

reason as to why the reasoning assigned by the Rent Tribunal

and the Revisional Court are to be discarded.

29. The defendants - tenants are successful in

probablising their defence that the vacant land was leased in

favour of one Mr Oswald Kamath who was the owner of the

building in question, which was later purchased by Mr Francis

Fernandes in a Court auction held on 12.10.1970 in Execution

Case No.181 of 1970 on the file of learned Munsiff at

Mangaluru. Admittedly, the sale was confirmed vide order

dated 23.10.1970. It was that superstructure which was

purchased by the original tenant Ramachandra from Francis

Fernandes during October 1970 for valuable consideration.

After the death of original tenant, his legal representatives

were brought on record who are the appellants herein. Under

such circumstances, the First Appellate Court committed an

error in ignoring Exs.D6 and 7 and also the judgment in HRC

No.72 of 1967 and RRP No.142 of 1986.

30. The next contention raised by the learned senior

advocate is with regard to the dual ownership over the land

and the superstructure. when the appellants are successful in

proving that they are the owners of the superstructure in

question and when they admit the ownership of the

respondent-plaintiff over the land, definitely it is nothing but

dual ownership. The co-ordinate Bench of this Court in

M/s.Lakshmi Enterprises (supra) had an occasion to deal

with the question of dual ownership where the petitioner

therein claimed to have built a building on the land leased in

his favour and claimed the ownership over the building under

the doctrine of dual ownership. This Court referring to the

decision of privy council in Narayan Das Khetty Vs Jatindra

Nath Roy Chowdary and others6, held that unlike in

England, in India there can be dual ownership, in the sense,

that the land may belong to one person and the building

thereon may belong to another person. This Court referring

to its earlier decisions and also the decision of the Hon'ble

AIR 1927 privy council 135

Apex Court came to the conclusion that by virtue of doctrine

of dual ownership, the petitioner therein has became the

owner of the building.

31. When the materials that are placed before the

Court unmistakenly prove that the superstructure referred to

by the parties was purchased by the original tenant and the

same was inherited by the appellants herein, they are entitled

to enjoy the superstructure as it owners. When the appellants

are not the trespassers but the owners of superstructure in

question, their possession over the same is to be protected.

The plaintiff knowing fully well about the purchase of

superstructure and permitting the tenants to enjoy the same,

cannot now contend that the defendants are liable to be

evicted not only from the land, but also from the

superstructure. The respondent-plaintiff who is only the

owner of the land beneath the superstructure is not entitled

to terminate the tenancy of the defendants by issuing the

notice to quit both in respect of the land and the building.

However, being the owner of the land, the plaintiff is entitled

to terminate the tenancy of only the land.

32. Even though in the present case, the plaintiff has

issued notice terminating the tenancy both in respect of the

land and the superstructure, on proof of the fact that it is not

the owner of the superstructure, the said notice to quit could

be referred only to the land and not the superstructure. Now

the question arises as to what should happen to the

superstructure after termination of lease in respect of the

land in question.

33. Learned senior advocate for the appellants and

the learned counsel for respondent No.1 have produced

several photographs before the Court to show the present

condition of the superstructure standing on the building. The

photos produced by each of the parties are not disputed by

the other side. The photos disclose that the superstructure is

a pakka building, of course, which is not in good condition,

but it is not in a position to remove it without sustaining loss.

Therefore, I am of the opinion that the defendants may be

permitted to be in possession and enjoyment of the

superstructure till the same perishes, naturally. The condition

of the building as on today could be seen in the photographs

that are produced by both the parties. The defendants who

are entitled to be in possession and enjoyment of the

superstructure are not entitled to strengthen, renovate or

make alterations to the superstructure as it would defeat the

rights of the plaintiff after termination of the lease of the land

in question. However, the defendants are entitled to maintain

the building as it is, till it collapses, naturally. However, the

plaintiff being the owner of the land beneath the

superstructure is entitled for mesne profits or the damages

for use of the land by the defendants.

34. The description of the property in the schedule

appended to the plaint discloses that the superstructure is a

commercial premises situated within the limits of Mangaluru

City Corporation. The photos that are produced before this

Court also disclose that the premises is being used for

commercial purpose. Under such circumstances, I am of the

opinion that a reasonable amount of Rs.10,000/- per month

to be fixed as mesne profits for the use of land in question by

the defendants.

35. Learned senior advocate also raised the plea that

there is merger of ownership in respect of the land and

superstructure. When the defendants categorically admit that

the plaintiff is the owner of land, they cannot contend that the

same would merge with the superstructure which was

purchased by them. It is only when the interest of lessor and

the lessee vests at the same time in one person, it can be

said that there is merger and under such circumstances, the

lease in respect of immovable property determines as per

Section 111(d) of the Transfer of property Act, but the said

principle is not applicable to the facts of the present case.

36. In view of the discussions held above, I answer

substantial question of law Nos.1 and 2 in favour of the

appellants and against the respondent. However, substantial

question of law No.3 is answered partly in favour of the

appellants i.e., while rejecting the claim of merger of

leasehold right over the land, it is held that the appellants are

entitled to be in possession of superstructure till its perishes,

naturally.

37. Hence, I proceed to pass the following:

ORDER

(i) The appeal is allowed in part with proportionate

costs.

(ii) The judgment and decree dated 13.02.2006

passed in OS No.202 of 2003 on the file of the learned II

Additional Civil Judge (Jr.Dn.), Mangaluru DK, which was

confirmed vide judgment dated 20.04.2012 passed in RA

No.143 of 2006 on the file of learned II Additional Senior Civil

Judge, Mangaluru, DK, are hereby set aside.

(iii) The suit of the plaintiff for possession of the land

beneath the superstructure is decreed. However, the

defendants are entitled to be in possession and enjoyment of

superstructure till it perishes, naturally.

(iv) The defendants are entitled to maintain the

superstructure as it is, without having any right either to

strengthen, renovate or make alterations to the same.

(v) The defendants are liable to pay mesne profits at

the rate of Rs.10,000/- per month to the plaintiff towards the

increase use of land in question till handing over its

possession.

(vi) The defendants are liable to hand over the vacant

possession of land in question once the superstructure

perishes, naturally and it becomes unsafe for occupation.

Sd/-

JUDGE

*bgn/-