2019 Supreme(Kar) 2029

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
SREENIVAS HARISH KUMAR, J.
Sri. M.Chandran, S/o. Manikyam – Appellant
Versus
Smt. Ayeesha @ Sudha, W/o. Late Saleem and Ors – Respondent
Regular First Appeal No.949 of 2018
Decided On : 13-03-2019

Headnote:

Transfer of Property Act - Section 111 - Leases of Immovable property - Possession of second floor of house – Tenants - Whether this has occurred is a question of fact - Whether plaintiff proves that defendant No.1 is tenant of suit premises - Whether plaintiff further proves that tenancy terminated by issuance of notice - Whether plaintiff proves that defendants have not paid rent amount as contended in plaint - Whether court fees paid is sufficient - Plaintiff initiated a suit to eject defendants from a residential premises situated in first floor of property corporation 1st Cross Garden near Factory Road - It is case of plaintiff that he is absolute owner of plaint schedule property and defendants are his tenants on a monthly rent - Tenancy period is for a period of days commencing from first day of every calendar month - First defendant’s husband took plaint schedule property on rent and after his death defendants continued there as tenants – Held, Plaintiff himself adduced evidence as PW1 and produced 12 documents as per Ex. P1 to P12 - First defendant adduced evidence as DW1 and produced 8 documents as per Ex. D1 to D8 - Trial court after appreciating evidence came to conclusion that relationship of landlord and tenant between plaintiff and defendants has not been established and therefore dismissed suit - Assailing findings of trial court learned counsel for appellant/plaintiff argues that trial court has given reasons which are not sustainable according to law - It has held that Ex.P10 rent agreement has not been proved and it is not possible to be accepted - It is his argument in this regard that defendants did not file written statement until plaintiff tendered his evidence in examination in chief - Since written statement had not been filed there was no occasion for plaintiff to produce rent agreement - Only when defendants filed written statement disputing relationship plaintiff had to produce rent agreement - Trial court has disbelieved evidence of PW1 and noticed that stamp paper for preparing rent agreement was purchased - Lessee cannot therefore surrender unless term is vested in him and surrender must be to a person in whom immediate reversion expectant on term is vested - Implied surrender by operation of law occurs by creation of a new relationship or by relinquishment of possession - If lessee accepts a new lease that in itself is a surrender - Surrender can also be implied from consent of parties or from such facts as relinquishment of possession by lessee and taking over possession by lesser - Relinquishment of possession operates as an implied surrender - There must be a taking of possession not necessarily a physical taking but something amounting to a virtual taking of possession - If case on hand is examined there is nothing on record to show that there was surrender of lease soon after coming into being agreement of sale - There are no other circumstances which evidence execution of agreement of sale by plaintiff in favour of first defendant’s husband - Therefore this contention taken by defendants should fail and for this reason it has to be held that defendants continued to be tenants of plaintiff after death - As rightly argued by appellant’s counsel there are two documents which trial court has not taken into consideration at all - Ex.P11 is copy of complaint made by first defendant to police against plaintiff - In this complaint it is clearly stated that defendants are staying in house for last seven years and that rent and they have to pay month’s rent - Ex.P12 is another complaint - These two documents are disputed by defendants - It is argued vehemently by respondents counsel that plaintiff himself created these complaints - It is true that in examination in chief DW1 has stated that Ex. P11 and P12 are concocted and forged documents and that signatures found in both these complaints are not her signatures - Considering argument of defendants counsel even if these two documents are ignored still plaintiff’s case that defendants are his tenants stands in view of defendants failing to establish agreement of sale – Appeal allowed