Anand Kumar vs Yuvaraj Vasanth Rao Pawar

Aravind Kumar, J.—This is a defendant''s second appeal calling in question the correctness and legality of the judgment and decree passed by the IV Addl. Senior Civil Judge dated 10.03.2015 in RA 105/2013, whereunder the judgment and decree passed by the Trial Court in OS No. 1695/2010 dated 21.01.2013 decreeing the suit for ejectment and granting three months time to the defendant to vacate and hand over vacant possession, came to be affirmed.

Respondent herein has filed a suit for ejectment against the appellant-defendant contending that defendant is in occupation of the suit schedule property by virtue of the tenancy granted by erstwhile owner Sri. T.A. Ashok Kumar and said property was purchased by the plaintiff under registered sale deed dated 22.02.2010 and as such he has become the owner of suit schedule property. It was also contended that defendant is the tenant in occupation of the suit schedule premises and was paying monthly rent of Rs. 3,575/-. On account of plinth area of the suit schedule premises exceeding 14 square meters, provisions of Karnataka Rent Act was not applicable and as such, a quit notice was issued terminating the tenancy by notice dated 03.08.2010, which was replied by defendant on 17.08.2010 and on account of defendant not complying with the demand made in the quit notice, suit in question came to be filed for ejectment.

Defendant appeared on service of suit summons, filed the written statement denying the averments made in the plaint and contended that he has taken the suit schedule premises on lease under an agreement dated 01.11.2003 entered into with Sri. T.A. Ashok Kumar on monthly rent of Rs. 3,575/- and lease had been renewed for a further period which was due to expire on 30.10.2006 and he had paid the advance amount of Rs. 1,75,000/- through DD dated 31.12.2000 and has been paying enhanced rent w.e.f. 30.10.2006 i.e., 3,935/- per month and additional advance of Rs. 4,00,000/- was also paid to Sri. T.A. Ashok Kumar on 02.11.200; thus, in all the sum of Rs. 5,75,000/- is due from the erstwhile owner Sri. T.A. Ashok Kumar; All other averments made in the plaint came to be denied.

On the basis of pleadings of the parties, Trial Court framed issues and on appreciating the evidence tendered by the parties, decreed the suit for ejectment and ordered for separate enquiry being held under Order XX Rule 12 of CPC for mesne profits.

Perusal of the judgment and decree passed by the Trial Court would indicate that though jural relationship came to be denied, DW1 in his cross examination has admitted that cheque bearing No. 187471 drawn on Union Bank of India, Mysore was issued in favour of the plaintiff and same has been encashed by the plaintiff and thus it would indicate that defendant had paid rent and admitted the relationship of landlord and tenant. On issuing the termination of tenancy notice (Ex. P4), it has been noticed that the tenancy was duly terminated since quit notice was duly served on the defendant and same has been marked as per Ex. P5. Hence, the termination of tenancy was also held to be correct and proper. Hence, the suit came to be decreed.

Defendant assailed the said judgment and decree before the First Appellate Court, by re-iterating the defence raised before the trial Court as grounds in the appeal. Lower Appellate Court secured the records of trial Court and after hearing, arguments of learned Advocates, following points came to be formulated for its consideration:

"1. Whether the defendant proves that the Trial Court has failed to appreciate the oral and documentary evidence on record and also failed to apply the principle of law to the facts of the case in proper perspective?

Whether the defendant proves that the Trial Court has committed error in decreeing the suit against him by impugned judgment and decree?

Whether the impugned judgment and decree calls for any interference at the hands of this Court in this appeal?

What Order or Decree?"

Sri M.S. Nagaraj, learned counsel appearing for appellant has vehemently contended that on re-appreciation of the evidence, the Lower Appellate Court has found that the grounds urged by the appellant-defendant is untenable and the plea of the defendant with regard to misuse of the cheque by his employee was held not to be proved. But on the other hand, it has found that defendant in his cross examination has admitted that the said cheque bearing No. 187471 contain the signature and as such it arrived at a conclusion that denial of jural relationship is improper, or in other words, not tenable in law. Rejecting the said contention, it was further held by the First Appellate Court that the termination of tenancy by the plaintiff was in consonance with Section 106 of the Transfer of Property Act and it has been urged in the present appeal that by virtue of the suit schedule property having been transferred in favour of respondent-plaintiff, there was no attornment of tenancy and as such termination notice is improper and plaintiff would not get right to seek ejectment of the appellant-defendant from the suit schedule property.

Per contra, Sri. Subramanya Bhat, learned Counsel appearing for the respondent would support the concurrent findings recorded by the Courts below.

Undisputedly, the suit schedule building was purchased by the respondent-plaintiff on 22.02.2010 under the registered sale deed Ex. P8. Plaintiff having stepped into the shoes of erstwhile owner with whom the appellant-defendant was tenant and later paid the rents to plaintiff by cheque, it cannot be held that findings of Court below being erroneous. Concurrently it has been held by the Courts below that plea of the defendant of cheque having been misused by the defendant''s employee is an after thought and said finding does not call for any interference, in as much as, it is based on proper appreciation of evidence and also in view of the unequivocal admission of DW1 in his cross examination that said cheque in question bears his signature.

That apart, when there is a registered sale deed, the tenancy is deemed to have been attorned as held by this Court in the case of Popular Automobiles Vs. N. Veeraswamy, . Even otherwise, Section 109 of the Transfer of Property Act, would clearly indicate that if the lessor transfers the property leased, the transferee in the absence of a contract to the contrary, would 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. In the instant case, undisputedly, the plaintiff under registered sale deed dated 22.02.2010 (Ex. P8) purchased the suit schedule property and as such the defendant had issued the cheque bearing No. 187471 towards rent which has been encashed by the plaintiff and same is also admitted by the defendant in his cross examination. Hence, contention of the defendant that there is no proper attornment of tenancy and as such notice Ex. P4 issued terminating the tenancy is bad in law cannot be accepted. In fact, the spirit behind Section 109 of the Transfer of Property Act, is to ensure that right, title and interest in the immovable property when stands transferred to successor in interest he would be entitled to the rights of the predecessor by operation of law.

It has been held by the Hon''ble Apex Court in the case of Vasantkumar Radhakisan Vora Vs. The Board of Trustees of the Port of Bombay, to the following effect:

"8. It is no doubt true that per se Section 109 of Transfer of Property Act does not apply to the facts of this case. It contemplates transfer of lessor''s right intervolves. But when right, title and interest in immovable property stand transferred by operation of law, the spirit behind Section 109 per force would be entitled to the rights of the predecessor. This is what the learned Single Judge of High Court in the impugned judgment as held and we approve of the view as correct. We, accordingly hold that the notice terminating the tenancy of Vasant Kumar would enure to the benefit of the respondents and it can be availed of by the respondents to lay the suit for ejectment."

In that view of the matter, I do not find any good grounds to interfere with the concurrent findings of the Courts below. Appeal is accordingly dismissed.

After dismissal of the appeal, Sri. M.S. Nagaraja, learned counsel appearing for the appellant submits that some reasonable time be granted for him to vacate the suit schedule building. However, same is opposed by the learned counsel for the respondent.

By taking into consideration that the appellant is carrying on business in the suit schedule premises, he would be at liberty to move the Executing Court seeking for granting of time by filing necessary application. In the event of such application is filed, the Executing Court shall consider the same and would be at liberty to grant time which shall not exceed beyond 30 days from today.