Heard.

2.

Aggrieved by the dismissal of his suit for

ejectment, the plaintiff in S.C.No.15577/2011 on the file of

XV Additional Judge and Court of Small Causes, Bengaluru

has preferred the above petition.

3.

During the pendency of the petition, the

petitioner

died

and

his

legal

representatives

have

continued the case. For the purpose of convenience, the

parties will be referred to as per their ranks before the trial

Court.

4.

The subject matter of the suit was property

bearing Shop No.12 in Ground Floor bearing Khata No.6/1

situated

at

Erappa

Layout,

Banaswadi

Main

Road,

Bengaluru measuring 13 feet x 24 feet.

3

5.

The case of the plaintiff in brief is as follows:

He let out the suit premises to the defendant under

lease agreement dated 01.04.1998 on monthly rent of

Rs.1,000/- and sum of Rs.20,000/- was paid as security

deposit. The rent was increased and rate of rent payable

as on the date of suit is Rs.1,400/- per month. After expiry

of the term of the lease, he requested the defendant to

handover the possession of the property which was not

complied.

Ultimately,

he

got

issued

notice

dated

06.12.2006 demanding vacant possession of the property.

Despite service of notice, the defendant has not vacated

the premises. Thus he claims decree for possession and

damages at the rate of Rs.3,500/- per month from the

date of the suit till possession is delivered to him.

6.

The defendant contested the suit by filing

written statement. His defence was as follows:

He was tenant of the suit property since 15.02.1989.

The rate of rent was enhanced from time to time. The last

such agreement was dated 29.09.1995. He disputes the

agreement dated 01.04.1998. The issuance of service of

termination notice was disputed. Since tenancy was not

4

terminated as per Section 106 of the Transfer of Property

Act, 1882 (‘the Act’ for short), the suit was not

maintainable.

7.

On the basis of the pleadings, the trial Court

framed the following issues:

1.

Whether plaintiff proves that he had

validly terminated tenancy of defendant?

2.

Whether

suit

of

the

plaintiff

is

maintainable?

3.

Whether

plaintiff

proves

the

jural

relationship of landlord and tenant in

respect of suit schedule property?

4.

Whether this court has got jurisdiction to

try the suit?

5.

Whether plaintiff is entitled for the reliefs

sought for?

6.

What decree or Order?

8.

The parties adduced evidence. The plaintiff got

examined himself as PW.1 and got marked Exs.P1 to P5.

The defendant got himself examined as DW.1 and got

marked Exs.D1 to D7.

9.

The trial Court on hearing both side by the

impugned judgment and order dismissed the suit on the

5

sole ground that there was no valid termination of the

tenancy, therefore the suit was ejectment was not

maintainable.

Submissions of Sri Janardhana.G., learned Counsel for

the plaintiff:

10.

There was no dispute with regard to jural

relationship. As per Ex.D7 the respondent’s own document

i.e. lease agreement dated 29.09.1995, the parties agreed

to be governed by the provisions of the Act if any term of

that was inconsistent with the said Act. As per Section 106

of the Act when there is no period fixed with regard to the

immovable property and evidenced by unregistered

document it has to be treated as 11 months lease. When

the lease of immovable property is for a term, as per

Section 111(a) of the Act, the lease gets determined by

efflux of time. In such cases, notice of termination under

Section 106 of the Act is not required. Mere acceptance of

the rent does not amount to waiver of the termination of

the tenancy. Therefore the trial Court committed error in

holding that the lease was not validly terminated.

6

11.

In support of his submissions, he relies on the

following judgments:

(i)

M.C.Mohammed v. Smt.Gowramma¹

(ii)

Shanti Prasad Devi v. Shankar Mahto²

Submissions of Sri Sailesh S.K. learned Counsel for the

defendant:

12.

The service of notice as required under Section

106 of the Act was not proved. In the suit for ejectment

without service