G. Jagadish Kumar S/O Late K ... vs K.G. Murali S/O K N Gopal
2023 Latest Caselaw 2500 Kant

                                    RSA No.650/2011

                         -1-




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 23RD DAY OF MAY 2023

                       BEFORE

       THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

REGULAR SECOND APPEAL NO. 650 OF 2011 (RES)

BETWEEN:

G. JAGADISH KUMAR
S/O LATE K. GOVINDASETTY
AGED ABOUT 52 YEARS
R/O 6TH CROSS ROAD
SRIKANTAPURI EXTENSION
NANJANGUD TOWN - 571301
MYSORE DIST.
                                       ...APPELLANT
(BY SMT. P. C. SUNITHA, ADV.)


AND:

K. G. MURALI
S/O K. N. GOPAL
AGED ABOUT 44 YEARS
SRI DHARSHINI HOTEL
OPP. DALVOI SCHOOL, BAZAAR STREET
NANJANGUD TOWN - 571301
MYSORE DIST.
                                    ... RESPONDENT
(BY SRI. P. MAHESHA, ADV.)
                                         RSA No.650/2011

                          -2-



     THIS RSA IS FILED UNDER SECTION 100 OF THE
CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
PASSED BY THE LEARNED CIVIL JUDGE (SR.DN.),
NANJANGUD IN R.A.NO.82/2007 DATED 09.09.2010
DISMISSING THE APPEAL AND THEREBY CONFIRMING THE
JUDGMENT AND DECREE PASSED BY THE LEARNED ADDL.
CIVIL JUDGE (JR.DN.), NANJANGUD IN O.S.NO.178/2002
DATED 10.03.2006, DISMISSING THE SUIT OF THE
APPELLANT/PLAINTIFF AND DECREE THE SUIT BY
ALLOWING THE APPEAL WITH COSTS.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 05.04.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                     JUDGMENT

This second appeal is preferred challenging the

judgment and decree dated 10.03.2006 passed in O.S

No.178/2002 on the file of Additional Civil Judge (Jr.

Dvn.), Nanjangud and also the judgment and decree

passed in R.A No.82/2007 dated 09.09.2010 on the

file of Senior Civil Judge and JMFC, Nanjangud.

2. The parties are referred to as per their

rankings before the trial Court. The appellant is the

plaintiff and respondent is the defendant.

RSA No.650/2011

3. Brief facts leading rise to filing of this appeal

are as under:

The plaintiff filed the suit for ejectment and for

arrears of rent amounting to Rs.33,715/-. It is the

case of the plaintiff that defendant's father

Sri.K.N.Gopal entered into a lease agreement on

05.07.1992, with the plaintiff, who is the owner of the

schedule premises, on the condition that the lease is a

monthly lease and the rent at the beginning of the

lease would be Rs.500/- per month and if the lease

continued beyond one year, there would be an

enhancement of rent at the rate of 10% over the

prevailing rent, every two years. Thus the present

rent is Rs.800/- per month. The said Sri.Gopal died in

the month of June, 1995. The defendant being his

son, continued in possession of the premises. Ever

since then, the defendant has failed to pay the rent

and he is in arrears of rent from June, 1995. Inspite RSA No.650/2011

of repeated requests and demands, the defendant has

not paid the rent. Hence, the suit is for arrears of

rent and also for recovery of possession. The plaintiff

got issued a legal notice to the defendant terminating

the tenancy on 13.05.2002. Though the defendant

received the notice, gave an untenable reply and

failed to vacate the premises. Hence, cause of action

arose for the plaintiff to file a suit for ejectment and

also for recovery of arrears of rent.

The defendant filed written statement denying

that defendant's father Sri.K.N.Gopal entered into

lease agreement with the plaintiff and also denying

that the plaintiff is the owner of the suit premises as

on 05.07.1992. He denied that the said premises was

let out to defendant's father Sri.K.N.Gopal by the

plaintiff and also denied the monthly rent at Rs.800/-

with effect from 05.06.2002. It is admitted that after

the demise of Sri.Gopal, the defendant being his son, RSA No.650/2011

continued in possession of the premises. But it is

denied that the defendant has failed to pay the rent

and is in arrears of rent from June, 1995. It is

contended that the suit is barred by limitation. It is

contended that the averment made in para-5 of the

plaint to the effect that even after the termination

notice, the defendant has not paid any rent, is not

applicable to the defendant and as such plaintiff has

no right to seek possession of the schedule shop. The

plaintiff is not the owner of suit schedule property and

defendant is not the tenant under the plaintiff, as

such, there is no relationship between the plaintiff and

the defendant as the landlord/lessor and the

tenant/lessee. Hence, it is contended that defendant

is running a hotel from his childhood and after the

demise of his father, he alone continued in the

premises and invested heavy amount and installed RSA No.650/2011

several machinery for smooth running of the hotel.

Hence, on these grounds, prays to dismiss the suit.

The trial Court on the basis of pleadings of the

parties, framed the following issues:

1. Whether the plaintiff proves that the defendant's father was a tenant under him on a monthly rent of Rs.500/- with respect to the suit schedule property?

2. Whether the plaintiff proves that the defendant is a chronic defaulter in payment of rent right from 1995?

      3. Whether the plaintiff     proves that   the
      tenancy    is   properly      terminated    as
      contemplated under law?

4. Whether the plaintiff proves that he is entitles for possession of the suit schedule property?

5. Whether the plaintiff is entitled for the reliefs as claimed in the suit?

6. Whether the defendant proves that the plaintiff is not the owner of the suit schedule property and he is not a tenant under him as claimed in para 7 of the written statement?

7. What order or decree?

RSA No.650/2011

The plaintiff in support of his case, examined

himself as PW.1 and examined two witnesses as PW.2

and PW.3 and got marked documents at Exs.P1 to P7.

The defendant examined himself as DW.1 and got

marked documents at Exs.D1 to D62.

The trial Court after recording the oral and

documentary evidence has held that the plaintiff has

failed to prove that defendant's father was a tenant

under him on monthly rent of Rs.500/- in respect of

suit schedule property and also held that the plaintiff

has failed to prove that the defendant is a chronic

defaulter in payment of rent right from 1995 and held

that the plaintiff has failed to prove the tenancy as

contemplated under law and failed to prove that he is

entitled for the relief of possession of suit schedule

property. Further, it is held that the plaintiff is not

entitled for the relief as claimed in the suit and further

held that the defendant has proved that plaintiff is not RSA No.650/2011

the owner of the suit schedule property and is not a

tenant under him, as claimed under paragraph No.7 of

the written statement and consequently dismissed the

suit of the plaintiff.

Being aggrieved by the judgment and decree

passed by the trial Court, the plaintiff preferred an

appeal in R.A No.82/2007 on the file of Senior Civil

Judge and JMFC, Nanjangud. The Appellate Court

framed the following points for consideration:

(1) «ZÁgÀuÁ £ÁåAiÀiÁ®ªÀÅ OS.178/2022 C£ÀÄå ªÀeÁ ªÀiÁqÀ®Ä ¤ÃrgÀĪÀ PÁgÀtUÀ¼ÄÀ £ÁåAiÀÄ ¸ÀªÄÀ ävÀªÁVzÉAiÉÄÃ?

(2) MAzÀÄ ªÉÃ¼É £ÁåAiÀÄ ¸ÀªÄÀ ävÀªÁUÀzÉà EzÀÝ°è ¸ÀzÀj wæð£À°è ºÀ¸ÀÛPÉëÃ¥À ªÀiÁqÀ¨ÉÃPÁVzÉAiÉÄÃ?

(3) F ªÉÄîä£À«AiÀÄ PÉÆ£ÉAiÀÄ DzÉñÀ K£ÀÄ?

After re-appreciating the oral and documentary

evidence, the Appellate Court dismissed the appeal

and confirmed the judgment and decree passed by the

trial Court. Being aggrieved by the judgment and RSA No.650/2011

decree passed by the Courts below, the plaintiff has

preferred this second appeal.

This court has admitted the appeal on the

following substantial question of law :

Whether the Courts below are legally correct in holding that in the absence of proof of attornment of tenancy, there is no relationship of landlord and tenant between plaintiff and defendant, when there can be attornment of tenancy by operation of law?

4. Heard the learned counsel for the plaintiff

and also the learned counsel for the defendant.

5. The learned counsel for the plaintiff submits

that the plaintiff has purchased the suit schedule

property under a registered sale deed dated

05.07.1992. He submits that the father of the

defendant has entered into a lease agreement with

the plaintiff and defendant's father passed away in the

month of June, 1995. After the demise of his father, RSA No.650/2011

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the defendant alone continued in possession of the

property as a tenant. The plaintiff got issued a legal

notice terminating the tenancy. The defendant has

replied to the said notice. She submits that as per

Sections 8 and 109 of the Transfer of Property Act, by

operation of law, all the interest which the transferor

is then capable of passing in the property and in the

legal incidents, shall transfer to the transferee

including the rent thereof accruing after the transfer.

She also submits that according to Section 109 of the

Transfer of Property Act, the defendant has accepted

the plaintiff as a lessor. She submits that the Courts

below have failed to consider Sections 8 and 109 of

the Transfer of Property Act. Hence, she submits that

there exist a relationship as lessor/landlord and

lessee/tenant between the plaintiff and the defendant.

The Courts below have committed an error in

recording a finding that there exist no relationship as RSA No.650/2011

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a lessor and lessee between the plaintiff and the

defendant. Hence, on this ground, she prays to allow

the petition.

6. Per contra, learned counsel for the

defendant submits that plaintiff is not the owner of the

suit schedule property and that there is no

relationship of lessor and lessee between the plaintiff

and defendant. He submits that that the suit filed by

the plaintiff is not maintainable. The courts below

were justified in recording a finding that there exist no

relationship as a lessor and lessee between the

plaintiff and defendant. He submits that the plaintiff

has not pleaded in the plaint how the plaintiff has

acquired the title over the suit schedule property.

Hence on these grounds, prays to dismiss the appeal.

7. Perused the records and considered the

submissions of learned counsel for the parties.

RSA No.650/2011

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8. It is the case of the plaintiff that defendant's

father entered into a lease agreement with the

plaintiff on a condition that lease is a monthly lease

and the rent of suit schedule property would be

Rs.500/- p.m. and if the lease period is extended

beyond one year, there would be enhancement of rent

at 10% on the prevailing rent every two years.

Present rent is Rs.800/- p.m. The defendant's father

died in the month of June, 1995. After the demise of

his father, the defendant being his son continued to

be in possession of the suit property and running a

hotel in the suit schedule property. The plaintiff

requested the defendant to pay the rent, but the

defendant did not pay the rent to the plaintiff. The

plaintiff got issued a legal notice terminating the

tenancy. The defendant replied to the said legal

notice, wherein the defendant denied the title of the

plaintiff and admitted the title of plaintiff's vendor and RSA No.650/2011

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refused to vacate the suit property. Defendant

contended that there exist no relationship as a lessor

and lessee between the plaintiff and defendant. It is

denied that defendant's father executed a lease

agreement in favour of the plaintiff. It is denied that

plaintiff is the owner of the suit property. It is

contended that the defendant is in possession of the

suit property as tenant under the plaintiff.

9. The plaintiff in support of his case examined

himself as PW-1. He has reiterated the plaint

averments in the examination-in-chief got marked the

original rent agreement as Ex.P1, executed by

defendant's father namely Sri.K.N.Gopal in favour of

the plaintiff. Ex.P2 is the certified copy of the final

decree passed in O.S.No.189/1984 filed by

G.Jagadeesh Kumar against C.L.Sriramshetty, since

deceased through LRs. Ex.P3 is the legal notice dated

13.05.2002, got issued by the plaintiff terminating the RSA No.650/2011

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tenancy. Ex.P4 is the reply notice issued by the

defendant. Ex.P5 is the copy of objections filed by the

father of defendant in HRC No.18/1992 filed by

Sujnanendra Char @ Raja S. Giriyachar Manthralaya.

Ex.P7 is the certified copy of the registered sale deed

executed by Sriram Shetty in favour of the plaintiff.

In the course of cross-examination, it was suggested

to PW-1 by learned counsel for the defendant that

defendant's father was carrying a hotel business in the

suit property and Sriram Shetty was the owner of the

suit property and he had let out the suit property to

the defendant's father and for the last 20 years the

defendant's father was running hotel business till his

death and after his demise, the defendant alone is in

continuous possession. Rest of the averments made

in the examination-in-chief is denied by the learned

counsel for the defendant in the course of cross-

examination.

RSA No.650/2011

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10. Sri. N. Mahadeva was examined as PW-2.

He is the attester to Ex.P1. He deposed that plaintiff

is the owner of the suit property and father of

defendant executed lease agreement in favour of the

plaintiff and he has put his signature on Ex.P1. In the

course of cross-examination, nothing has been elicited

from this witness. PW-2 has supported the case of

the plaintiff.

11. Sri. N. Krishna was examined as PW-3. He

has reiterated the examination-in-chief of PW-2. But,

nothing has been elicited from this witness.

12. Defendant was examined as DW-1. He has

reiterated the contentions taken in the written

statement in his examination-in-chief. In the course

of cross-examination, he admits that his father has

taken the suit property on lease from Sriram Shetty

and Sriram Shetty was the owner of the suit property.

RSA No.650/2011

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He also admits that Sriram Shetty is no more and the

legal representatives are residing at Nanjangud. He

admits that he has not made any attempt to pay the

rent to the legal representatives of deceased Sriram

Shetty on the ground that they did not demand the

rent.

13. Admittedly, Sriram Shetty was the owner of

the suit property and K.N.Gopal, i.e., father of

defendant, was the tenant under Sriram Shetty in

respect of the suit property. He sold the suit property

in favour of the plaintiff under registered sale deed as

per Ex.P7. The suit property was transferred in the

name of the plaintiff. As per Section 8 of the Transfer

of Property Act ('the TP Act' for short), there is a

presumption that when a property is transferred, all

things attached to the earth, such as, trees and

shrubs are also transferred along with the land. The

plaintiff becomes the owner by operation of law on the RSA No.650/2011

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strength of the registered sale deed. Such transfer

will not affect the tenancy as tenant will continue till

the eviction of tenant by the procedure of law.

Defendant does not acquire any interest in the

property and as such tenant cannot challenge the

right, title of his landlord. The tenant remains as a

tenant under the transferee/landlord. The plaintiff

issued a legal notice terminating the tenancy, but the

defendant replied to the said notice denying the title

of the plaintiff over the suit property. Though the

defendant had the knowledge about the registered

sale deed executed by Sriram Shetty in favour of the

plaintiff, but has denied him to be his landlord and has

not paid the rent to him. The defendant is enjoying

the suit property without paying the rent. The

defendant is a chronic defaulter. The defendant has

neither paid the rent to the plaintiff nor to the legal

representatives of deceased Sriram Shetty. It is the RSA No.650/2011

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case of the defendant that legal representatives of

deceased Sriram Shetty are neither claiming title over

the suit property nor demanded the rent. The

defendant cannot challenge the status of the plaintiff

as owner of the suit property. As such, the defendant

became a tenant under the plaintiff by operation of

law under Section 109 of the TP Act. The attornment

by lessee/defendant is not necessary for transfer of

property leased out to his father under Section 109 of

the TP Act. The Hon'ble Apex Court in the case of

GOPI @ GOVARDHANNATH, DEAD BY LRS. & ORS. VS.

BALLABH VYAS reported in AIR 2022 SC 5248, held

that attornment by lessee is not necessary for transfer

of property leased out to him under Section 109 of the

TP Act. At paragraph-27, Hon'ble Apex Court has held

as under:

"27. In the light of the finding on the issue whether the respondents in R.C.No.262 of 2008 were malafidely denying the title of the RSA No.650/2011

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petitioner therein over the petition schedule property, Section 109 of the Transfer of Property Act would assume relevance in regard to the right of the petitioner in R.C.No.262 of 2008 to seek eviction of the respondents therein, from the petition schedule property. Admittedly, the predecessor-in-interest of the appellants viz., late Shri Balraj, was the tenant in respect of the petition schedule property under its original owner Smt. Phool Kumari. A bare perusal of Section 109 of the Transfer of Property Act would reveal that if a landlord transfers the property leased out or any part of it, the transferee, in the absence of any contract to the contrary, shall possess all the rights of the landlord. Hence, the impact of Ext.P3, in the absence of any contract to the contrary, is that the respondent herein has stepped into the shoes of Smt. Phool Kumari. In terms of Section 109 of the Transfer of Property Act it is clear that attornment by the lessee is not necessary for the transfer of the property leased out to him. Thus, the inevitable consequence of transfer of a leased-out property by the landlord in accordance with law to a third party, in the absence of a contract to RSA No.650/2011

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the contrary, is that the third party concerned would not only become its owner having title but also would step into the shoes of the vendor as the landlord in relation to the lease holder at the relevant point of time. In such circumstances, the findings of the courts below that there exists jural relationship of landlord and tenant between the respondent and the appellants can only be held as the correct and lawful conclusion in the light of the evidence on record based on the legal position."

14. Section 109 of the TP Act reads as under:

"109. Rights of lessor's transferee.-- If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him:

RSA No.650/2011

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Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee. The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased."

15. Section 109 of the TP Act contemplates that

when right, title and interest in immovable property

stand transferred by operation of law, the spirit behind

Section 109 would apply and successor in interest

would be entitled to the rights of the predecessor.

The defendant is challenging the derivative of the title

of the plaintiff and not the title of the original landlord,

i.e., Sriram Shetty. The same holds no good as the

subsequent owner will derive the title of the original RSA No.650/2011

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owner and will step into the shoes of the owner. In

the instant case, the right and title of Sriram Shetty is

not under challenge and hence, the challenge as

regards the derivative title, is of no consequence in

the given background. Section 109 of the TP Act

would assume relevance ot the right of the plaintiff to

seek eviction of the defendant from the suit schedule

property. Even if the plaintiff failed to prove the

execution of Ex.P1, Section 109 of the TP Act

contemplate that in the absence of any contract to the

contrary, that is plaintiff has stepped into the shoes of

Sriram Shetty in relation to the lease holder at the

relevant point of time. In terms of Section 109 of the

TP Act, it is clear that attornment by the defendant's

father or by defendant is not necessary for the

transfer of property leased out to defendant's father.

16. The trial Court has dismissed the suit only

on the ground that the plaintiff, except producing RSA No.650/2011

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Ex.P1, has not produced any document to establish

the relationship as landlord and tenant. The trial

Court has failed to consider that the defendant has

admitted the ownership of plaintiff's vendor and also

defendant's father was a tenant and failed to consider

that attornment by defendant is not necessary for

transfer of property leased out to the defendant's

father under Section 109 of the TP Act. The Appellate

Court has, without properly re-appreciating the

evidence, has simply confirmed the judgment and

decree passed by the trial Court. Both the courts

below have committed an error in passing the

impugned judgments and decrees. As observed

above, when the landlord/original owner - Sriram

Shetty under whom the defendant's father was a

tenant, transferred the property in favour of the

plaintiff, the plaintiff became the owner on the

strength of the registered sale deed. As such, the RSA No.650/2011

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defendant became the tenant of the schedule property

and no attornment is required to create such landlord

and tenant relationship.

17. The defendant cannot deny the title of the

plaintiff. Section 116 of the Indian Evidence Act,

reads as under:

"116. Estoppel of tenant; and of licensee of person in possession. - No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given."

Section 116 of the Indian Evidence Act provides

that when a tenant of immovable property admits he RSA No.650/2011

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is in possession of property as a tenant and during the

continuance of the tenancy he denies the relationship

of the landlord. Such tenant has no right to remain in

possession of the suit property.

18. The Hon'ble Apex Court in the case of

PALANI AMMAL VS. VISHWANATH CHETTIAR reported in

1998 (2) LW PAGE 7, held applying Section 111(g)

that the tenant must accept the owner of the building

as a landlord by renouncing his character as a tenant

of the landlord by setting up title in the third person or

in himself otherwise, he ceases to be a tenant. The

Hon'ble Apex Court has clearly held that the umbrella

given to the tenant under the TP Act or under any

other law can no longer come to his aid and by

denying title, the tenant had walked out of the

protective umbrella of the protection act. That is a

case where in the suit filed for ejectment, the title was

denied in the written statement as well as in the RSA No.650/2011

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additional written statement. Ultimately, holding that

the denial having made in the course of pleadings, the

question of further intimating the tenant about such a

denial by a fresh notice and giving further notice does

not arise and consequently the tenant goes out of

protective umbrella and not entitled to the protection

of Section 106. The said judgment is aptly applicable

to the present case in hand.

19. The said aspect has been overlooked by the

courts below and proceeded to pass the impugned

judgments and decrees. The judgments and decrees

passed by the courts below are arbitrary and

erroneous. Hence, the impugned judgments are liable

to be set aside. In view of the above discussion, the

substantial question of law is answered in negative.

20. Accordingly, I proceed to pass the following:

RSA No.650/2011

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ORDER

The appeal is allowed.

The impunged judgments and decrees are set aside. Consequently, the suit of the plaintiff is decreed.

The defendant is directed to vacate and handover the possession of suit property to the plaintiff within 3 months from today, failing which, the plaintiff is entitled to recover the possession of the suit schedule property by executing the decree.

The defendant is directed to pay the arrears of rent amount of Rs.33,715/- to the plaintiff within 3 months from today.

No order as to the cost.

SD/-

JUDGE

RD