1. Heard the counsel for the parties.

2. The parties are referred to by their rank before the Trial Court for the sake of convenience.

3. The appellant herein was the plaintiff before the Trial Court. The suit was for ejectment and damages for use and occupation of the suit property. The plaintiff was the lessor and defendant no.1 was the tenant in respect of the suit premises, which was non-residential, for several decades. Defendant no.2 was said to be an unauthorised sub-lessee in occupation of the suit property.

4. There was no written agreement in respect of the lease. It was treated as a tenancy from month to month. The tenancy was terminated by a notice, in writing, dated 6.9.2000. The suit was decreed directing the defendants to deliver vacant possession of the suit property, however, the plaintiff was not granted damages but only the agreed rent upto the date of delivery of possession.

5. Defendant No.1, who had contested the suit, preferred an appeal before the first appellate Court, against the said judgment. The first appellate Court has held that:

a) There was no documentary or oral evidence as regards the terms of the lease. And therefore, in the absence of any such fixed term, the determination of tenancy by efflux of time was not available to the plaintiff.

b) There was no notice of termination of tenancy issued to the sub-lessee.

c) The plaintiff’s wife, who was found to be a co-owner had not joined the plaintiff in issuing the notice of termination of the lease and hence, the notice was void.

d) Defendant no.2 being a successor-in-interest of Defendant No.1 – there was no sublease. Even if the property was sub-let, it was not impermissible or illegal.

e) The plaintiff having filed a civil suit for declaration and permanent injunction in O.S.No.461/94 ought to have also sought for the relief of possession, notwithstanding the fact that the premises was governed by the provisions of the Karnataka Rent Control Act, 1961, and the Act was in force at the relevant point of time.

6. The counsel for the appellant contends that the lower appellate Court has filed to appreciate that Section 106 of the Transfer of Property Act, 1882 (hereinafter referred to as the “Act” for brevity) is attracted only in the absence of a written agreement of lease and hence the conclusion of the Court is erroneous in having held that the tenancy could not be determined as there was no term prescribed.

7. That the plaintiff having obtained a judgment from a Civil Court in the earlier Civil Suit O.S.No.461/94, as against defendant no.1 as to the transfer of tenancy in favour of defendant no.2 being illegal, the Court below was in error in holding that notice of termination of tenancy was also to be issued to defendant no.2, preceding the suit for ejectment.

8. The first appellate Court has failed to appreciate that the suit was not contested by defendant no.2 and there was no denial of the relationship of tenancy by defendant no.1. Hence, it was not justified in finding a case for defendant no.2 with reference to Section 108(j) of the Act.

9. It is contended that the first appellate Court was not justified in holding that the notice of termination of tenancy was void on account of the plaintiff’s wife, who was a co-owner of the suit property, not having joined the plaintiff in initiating the proceedings, by issuing a joint notice, when the law recognizes the right of a co-owner to initiate such proceedings. The counsel places reliance on a decision of a Division Bench of this Court in the case of A.S.KRISHNAMURTHY v. C.N.REVANNA AND OTHERS (2009) 5 Kar.L.J.454.

10. Per contra, the counsel for the respondents seek to support the judgment of the lower appellate Court and place reliance on the following decisions to contend that the ejectment proceedings were invalid in the absence of the co-owner of the suit property MOHAR SINGH (DEAD BY LRS.) v. DEVI CHARAN (AIR 1988 SC 1365) and SK. SATTAR SK. MOHD. CHOUDHARI v. GUNDAPPA A