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2014 Supreme(Kar) 426
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
A.V. CHANDRASHEKARA, J.
SMT RUDRAVVA & Ors. – APPELLANTS
Versus
SMT SUMA & Ors. – RESPONDENTS
R.S.A. NO. 84/2007 C/W R.S.A.NO.85/2007
Decided on: 17th JULY 2014
Advocate Appeared:
SRI. K.L. PATIL : SMT. S.S.BETURMATH, ADV.
SMT. PALLAVI PACHCHAPURE, ADV., FOR SRI. SRINAND A PACHCHAPURE, ADV., FOR R1 AND R3, SRI. SANTOSH B. MALAGOUDAR, ADV., FOR R2, NOTICE TO R4 H/S, SRI. K.L. PATIL ADV., S.S. BETURMATH, ADV.
Headnote:CODE OF CIVIL PROCEDURE, 1908 - Section 96: [A.V. Chandrashekara, J] First Appeal - Caution to be taken by First Appellate court in reversing the judgment of Trial Court - While writing a judgment of reversal, the appellate court must remain conscious of two principles - Firstly, the findings of fact based on conflicting evidence arrived at by the Trial Court must evaluate with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors of the judgment. The appellate court will not be entitled to interfere with the findings on fact unless there is conflict of oral evidence of the parties on any matter, in issue and the decision hinges upon the credibility of the witnesses or unless there is some special feature about the evidence a particular witness which has escaped the Trial judge’s notice, or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies. The Appellate Court should not interfere with the finding of Trial Judge on a question of fact. Further cautioned that while reversing the finding of fact, the Appellate Court must come to close quarters with the reasons assigned by the trial court and then assign its own reasons to arrive at a different finding. Then only it would satisfy the court on hearing a further appeal that the first appellate court has discharged the duties expected of it.
TRANSFER OF PROPERTY ACT, 1882 - Section 106(3) [As amended by Act 3/2003 w.e.f. 31.12.2002]: [A.V. Chandrashekara, J] Notice under - Amended section applies to all notices issued before commencement of Amendment Act but where no suit is filed before such commencement. A notice under sub-section (1) of Section 106 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, the period mentioned in that sub-section.
TRANSFER OF PROPERTY ACT, 1882 - Section 107: [A.V. Chandrashekara, J] Lease - Requirement of registration - Section 107 speaks about the manner in which leases may be made in respect of immovable property from year to yeart or for any term exceeding one year or reserving a yearly rent. Such lease can be made only by a registered document. In the present case, lease is for a period of one year only and it is not got registered. Lease for 11 months on monthly rent created on the basis of Kabuliyat signed by the lessees need not be registered. In view of first paragraph of the provisions of Section 107 lease cannot be allowed to be circumvented for setting up permanent tenancy. In the absence of registered focument, lease shall be deemed to be lease from month to month.
These appeals have arisen out of a divergent judgment passed in R.A. No.67/2005 and 68/2005 dismissing the suits filed in O.S. No.72/1999 and R.A. No.73/1999 for eviction of defendants. The present appeal in R.S.A. No.84/2007 has arisen out of a judgment in O.S. No.72/1999 and R.A. No.67/2005 and R.S.A. No.85/2007 has arisen out of a judgment and decree passed in O.S. No.73/1999 and R.A. No.68/2005.
R.S.A. No.84/2007
2. The suit property involved is a building run under the name and style ‘Ganesh lodge’ in CTS No.3014 situated in Ward No.1 Madhavpur, Hubli and this is the eastern portion of the building. The property bearing CTS No.3014 i.e. the eastern portion belonged to Channabasappa the husband of 1st plaintiff and father of deceased 2nd plaintiff Girimallappa. Late Purandarshetty the husband of 1st defendant and father of defendant Nos.2 to 4 had taken this property on lease from Channabasappa the husband of 1st plaintiff on monthly rental basis and he was paying rent up to 15.07.1985 @ Rs.600/- per month. The said tenant Purandarshetty died on 17.06.1988 at Manipal Hospital is a motor vehicle accident and hence, plaintiff chose to file a suit against his wife for eviction.
3. A legal notice dated 04.01.1999 was served on the defendants on 6.01.1999 under Section 106 of The Transfer of Property Act through RPAD. In spite of receipt of the said notice, plaintiff did not hand over the suit property and did not pay the mesne profit as claimed @ Rs.1,000/- per month. Hence, they chose to file a suit for eviction of the tenants.
4. During the pendency of the suit, 2nd plaintiff died and his legal representatives have been brought on record and during the pendency of suit, proceeding, Smt. Rudravva i.e. the wife of original lessor Channabasappa died and her legal representatives have been brought on record. It is treated that remaining appellants are the legal representatives of Smt. Rudravva and hence, they are treated as appellants for all practical purposes.
5. The defendants have admitted the jural relationship of landlord and tenant and running Ganesh Lodge in the schedule premises. According to them, the tenancy has not come to end after the death of Purandarshetty but they have inherited all the rights that Purandarshetty had in the suit property. Defendants have admitted the ownership of the plaintiffs in respect of land only and not the superstructure. According to them, Purandarshetty had spent a sum of Rs.10,00,000/towards alternation, repair and renovation of the building and for providing necessary interior decoration. According to them, the renovation, repairs and alternations have been made with the consent of the deceased lessor that too during his lifetime and hence plaintiffs are estopped from claiming possession of the suit property. According to them, the alternation so effected to the building is of a permanent nature and therefore, the lease in question has acquired the nature of permanent tenancy, more particularly, when the building in question was taken on lease in the year 1971 by Purandarshetty. It is further averred that they have set up hotel in the suit property and they have earned good will and this is an important source of their income. According to them, the tenancy has become irrevocable and therefore, suit for possession is liable to be dismissed. The construction so put up is a entirely new structure and the same cannot be handed over, since they have become the owners of superstructure.
6. On the basis of the above pleadings, the following issues came to be framed.
RECASTEDISSUE:
1. Whether the plaintiff prove that the term of tenancy of late Purandhara Shetty is completed?
ISSUES
1. Whether the tenancy of the deceased Purandhara Shetty is lawfully terminated?
2. Whether the plaintiff further prove that the liability of the defendants to pay the mesne profits.
3. Whether the defendants prove that they have the tenancy rights of deceased Purandhar Shetty?
4. Whether proper Court fee paid?
5.
