ORAL JUDGMENT

The captioned Regular First Appeal is by the appellant - defendant assailing the judgment and decree dated 27.01.2009 rendered in O.S.No.15753/2006 on the file of XXVI Additional City Civil and Sessions Judge, Mayo Hall, Bengaluru thereby directing the appellant to handover the vacant possession of the suit schedule premises and damages at the rate of Rs.4,000/- per month from the month of January 2006 till handing over of possession of the schedule property.

2. For the sake of brevity, the parties are referred as they are ranked before the Trial Court.

3. Facts leading to the case are as under;

The plaintiffs have filed an ejectment suit seeking vacant possession of suit schedule premises and also sought a direction against the defendant to pay arrears of rent amounting to Rs.12,000/- and damages at the rate of Rs.20,000/- from 10.01.2006 to 09.04.2006 and for future damages at the rate of Rs.5,000/- per month from the date of the suit till surrender of vacant possession of schedule property to the plaintiffs.

4. The subject matter of the suit is a commercial shop bearing No.25/132 locate at Sagayapuram, B.S.A Road, Bengaluru - 84. The plaintiffs have filed the present suit alleging that the defendant is a tenant and suit schedule premise is leased on a monthly rental of Rs.3,000/-. The plaintiffs have filed the present suit alleging that the defendant has committed default and has not paid the rent inspite of repeated requests and demands made by the plaintiffs. The plaintiffs also contended that the lease has expired and therefore, the plaintiffs have terminated tenancy by issuing a quit notice calling upon the defendant to surrender the vacant possession of the suit schedule premises. The present suit is filed alleging that in response to the legal notice dated 12.12.2005, the defendant has issued an untenable reply dated 20.12.2005 and has not come forward to surrender the vacant possession of the suit schedule premises.

Hence, the present suit.

5. The defendant, on receipt of summons, tendered appearance and filed written statement and stoutly denied the relationship of the landlord and the tenant. The defendant, however, contended that he has taken his schedule premises on lease from the original owner Syed Nasrullah during 1994 and therefore, disputed the plaintiffs' right to seek ejectment. The defendant further pleaded that original owner has offered to sell the suit schedule property and executed an agreement to sell on 20.07.2004 by receiving an advance amount of Rs.6,45,000/- out of total sale consideration of Rs.7,50,000/-. The defendant further contended that since landlord has committed breach in not performing his part of contract, the plaintiffs have filed a suit for specific performance of contract in O.S.No.2519/2009 and the same is pending consideration.

6. The plaintiffs and defendant have led oral and documentary evidence to substantiate their respective claims.

7. The Trial Court on examining the materials on record answered Issue No.1 in the Affirmative and Issue No.2 in the Negative. While answering Issue No.1 in the Affirmative, the Trial Court held that the plaintiffs have failed to prove that they have properly terminated tenancy of the defendant. While answering issue No.2 in the Negative, the Trial Court held that defendant has failed to substantiate that he is a tenant under the plaintiffs. Consequently, the suit is decreed and the defendant is directed to hand over the vacant possession.

8. Learned counsel appearing for the defendant reiterating the grounds urged in the suit has vehemently argued and contended that the plaintiffs could not have maintained a suit and the Trial Court failed to examine the scope and ambit of Section 109 of the Transfer of Property Act (for short 'TP Act') and therefore, it is vehemently argued and contended that the present suit for ejectment is not maintainable and this aspect is not rightly dealt by the Trial Court. Therefore, he has further submitted that