Smt Rudravva W/O Channabasappa Morab Vs. Smt Suma W/O K Purandarshetty - Court Judgment

Excerpt:
r.s.a.no.84/2007 1 c/w r.s.a.no.85/2007 r in the high court of karnataka, dharwad bench dated this the17h day of july2014before the hon’ble mr. justice a.v.chandrashekara r.s.a. no.84/2007 c/w r.s.a. no.85/2007 r.s.a. no.84/2007 between:1. 2. 3.4.5. smt rudravva w/o channabasappa morab aged about76yrs, householder r/o matti voni,hubli. smt saroja w/o girimallappa morab aged about47yrs, hosueholder r/o matti voni hubli smt bharathi w/o chandrakanth morab aged about30yrs, householder r/o matti oni hubli kumari annapurna d/o girimallappa morab aged about25yrs householder r/o matti voni, hubli kumari vidya d/o girimallappa morab aged about21yrs householder r.s.a.no.84/2007 2 c/w r.s.a.no.85/2007 6.7. r/o matti voni, hubli kumari megha d/o girimallappa morab aged about21yrs householder r/o matti voni, hubli kumar vinaykumar s/o gurumallappa morab aged about21yrs householder r/o matti voni, hubli. (by sri.k.l.patil : smt. s.s.beturmath, adv.,) ... appellants and1 2. 3.4. smt suma w/o k purandarshetty aged about51yrs householder r/o aravind nagar hubli shri prashanth s/o k purandashetty aged about30yrs student, r/o aravind nagar hubli shri shashikanth s/o k purandashetty aged about29yrs business, r/o aravind nagar hubli kumari lavanya d/o k purandarshetty, aged about24yrs householder, r/o aravind nagar hubli. ... respondents r.s.a.no.84/2007 3 c/w r.s.a.no.85/2007 (by 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 ) this rsa filed u/s. 100 of cpc against the judgement & decree dated:11. 10.2006 passed in r.a.no.67/2005 on the file of the ii addl.civil judge (sr.dn.), hubli, allowing the appeal and setting aside the judgement and decree dated:3. 3.2005 passed in os.no.72/1999 on the file of the iv addl.civil judge (jr.dn.), hubli. r.s.a. no.85/2007 (res) between:1. smt rudravva w/o channabasappa morab aged about76yrs, householder r/o matti voni hubli. vide court order dated1102.2011 appellant no.2 to l7 are to be treated as legal representatives of appellant no.1. 1a. smt saroja w/o girimallappa morab aged about47yrs, householder r/o matti voni, hubli. 1b. smt bharathi w/o chandrakanth morab aged about30yrs, householder r/o matti voni hubli1. kumari annapurna d/o girimallappa morab aged about25yrs, householder r/o matti voni hubli r.s.a.no.84/2007 4 c/w r.s.a.no.85/2007 1d. kumari vidya d/o girimallappa morab aged about21yrs, householder r/o matti voni hubli1. kumari megha d/o girimallappa morab aged about21yrs, householder r/o matti voni hubli1. kumar vinaykumar s/o gurumallappa morab aged about21yrs, householder r/o matti voni hubli. ... appellants (by sri.k.l.patil adv., : s.s.beturmath, adv.,) and1 2. 3.4. smt suma w/o k purandarshetty agedabout51yrs, householder r/o aravind nagar, hubli shri prashanth s/o k purandarshetty aged about30yrs, student r/o aravind nagar, hubli shri shashikanth s/o k purandarshetty aged about29yrs businessman, r/o aravind nagar hubli kumari lavanya d/o k purandarshetty aged about24yrs householder r/o aravind nagar hubli. ... respondents r.s.a.no.84/2007 5 c/w r.s.a.no.85/2007 (by smt. pallavi pachchapure, adv., for sri.srinand a pachchapure, adv., for r1 to r3, notice to r2 and r4 held sufficient) this rsa filed u/s. 100 of cpc against the in judgement & decree dated:11. 10.2006 passed r.a.no.68/2005 on the file of the ii addl.civil judge (sr.dn.), hubli, allowing the appeal and setting aside the judgement and decree dated:3. 3.2005 passed in os.no.73/1999 on the file of the iv addl.civil judge (jr.dn.), hubli. these appeals coming on continuation argument, delivered the following: further this day, the court for judgment 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 6 c/w r.s.a.no.85/2007 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 r.s.a.no.84/2007 7 c/w r.s.a.no.85/2007 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 r.s.a.no.84/2007 8 c/w r.s.a.no.85/2007 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 r.s.a.no.84/2007 9 c/w r.s.a.no.85/2007 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. recasted issue:1. whether the plaintiff prove that the term of tenancy of late purandhara shetty is completed?. issues1 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?. r.s.a.no.84/2007 10 c/w r.s.a.no.85/2007 5. whether the plaintiffs entitled for the possession of the suit property?. additional issues:1. whether this court has got pecuniary jurisdiction to try this suit?.2. whether this suit is not maintainable as contended in para no.18(a) of written statement?.3. whether the defendant proves that this court has no jurisdiction to enteralia this suit as contended in para 20(a) written statement?.4. whether the plaintiffs prove that the defendants are defaulter in payment of rent?.5. whether the defendants prove that there is no legal and valid terminatin of tenancy as required under t.p. act?. issues:7. what order or decree?.7. one channabasappa veerappa marad is examined as pw.1 on the strength of power of attorney executed by plaintiff. sri.shashikant shetty is examined as dw.1. 9 exhibits have been got marked as exs.p1 to p9 r.s.a.no.84/2007 11 c/w r.s.a.no.85/2007 on behalf of plaintiffs. 8 exhibits have been got marked on behalf of defendants. ultimately, suit came to be decreed answering issues no.1, 2, 5, 6 additional issue no.1 in the affirmative and remaining issues in the negative. it is held issue no.3 does not arise for consideration. ultimately, suit came to be decreed directing the defendants to vacate and hand over the vacant possession of the suit property to the plaintiffs within two months from 03.03.2005 the date of judgment. against the said judgment and decree, appeal came to be filed by plaintiffs under section 96 of c.p.c. in r.a. no.67/2005 before the court of 2nd additional civil judge (sr.dn.), hubli. the said appeal has been allowed in its entirety and consequently, o.s. no.72/1999 has been dismissed by setting aside the judgement and decree. it is this divergent judgment which is called in question before this court in r.s.a. no.84/2007. r.s.a.no.84/2007 12 c/w r.s.a.no.85/2007 8. dw.2 – p.k. gupta who is a civil engineer and consultant carrying on his profession in hubli has deposed that he has personally visited the hotel. according to him, the building in question was in a dilapidated condition and on the request of sri.purandarshetty he had prepared a plan and estimate of the said building.9. what is argued before this court by the learned counsel for the respondents/defendants is that pw-1 mr.channabassappa has no locus standi to tender evidence on behalf of the plaintiffs when plaintiff no.1 was alive at the time of commencement of recording the evidence. of course, pw-1 is the brother- in-law of deceased plaintiff no.2. on going through the evidence of pw-1, it is noticed that he had withdrawn the arrears of rent from the court and he was aware of facts of the present case. though he is not a member of the family of plaintiff, he knew about the facts of the r.s.a.no.84/2007 13 c/w r.s.a.no.85/2007 case very much. therefore, his evidence cannot be eschewed from consideration. infact, while cross- examining pw-1, pw-1 has deposed that second defendant’s sister is given in marriage to him and he is a lic agent at dharwad. he has admitted to the suggestion put to him that ganesh lodge was taken on lease by purandara shetty from chennabasappa. since he was very much conversant with the signature and handwriting of the deceased lessor, he has identified the signature found on the documents.10. the learned counsel for the respondents/defendants has argued at length in regard to lease deed marked at ex.d-4 relating to ganesh lodge. signature of chennabasappa found on the lease deed is not disputed. ex.d-4 is in running handwriting and it would be difficult to read it and hence typed copy of it is made available. r.s.a.no.84/2007 14 c/w r.s.a.no.85/2007 11. what is argued before this court by the learned counsel for the defendants is that on reading the entire contents of ex.d-4 it is evident that the lease so created is of permanent character and hence, plaintiffs cannot seek the relief of possession. it is argued before this court that pursuant to the conditions imposed in ex.d-4, the deceased purandara shetty got renovated the building by spending more than rs.10,00,000/- and therefore, superstructure now standing on the land is virtually a new superstructure and hence, plaintiff cannot have land from the defendants. therefore, it is very essential to have a detailed look into the same to know whether it has created a permanent lease.12. on going through the typed copy of ex.d-4, it is evident that as on 15.4.1979, ganesh lodge building was taken on lease by purandara shetty in order to run a lodge and restaurant at the rate of r.s.a.no.84/2007 15 c/w r.s.a.no.85/2007 rs.600/- per month. in paragraph 2 of ex.d-4, it is specifically mentioned that lease was for a period of one year only and he had agreed to pay rent and obtain receipt from the lessor. he had agreed to pay all electricity charges and to pay necessary bills regarding electricity consumption and water consumption. ex.d-4 speaks about the responsibility of lessor to pay property tax to the municipal corporation. purandara shetty had agreed to get the building repaired without causing damage to the existing building on his own and had undertaken that he would hand over the possession of the suit property premises to the lessor after the expiry of the period mentioned in ex.d-4 without any objection. he had even agreed not to transfer the property to anybody and that he would bear the expenses in connection with whitewash and painting of the building. it is also mentioned in ex.d-4 that in case the main wall were to fall, lessor should reconstruct the same out of his own costs and lessee had even agreed to r.s.a.no.84/2007 16 c/w r.s.a.no.85/2007 give back the furniture to lessor which belonged to lessor. on a plain reading of ex.d-4, it is evident that deed has not created permanent tenancy as requisite conditions for creating permanent tenancy are lacking.13. section 107 of transfer of property act speaks about the manner in which leases may be made in respect of immovable property from year to year 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 the first paragraph of the provisions of section 107 of tp act, lease cannot be allowed to be circumvented for setting up permanent tenancy. in the absence of registered document, lease shall be deemed to be leased from month to month. r.s.a.no.84/2007 17 c/w r.s.a.no.85/2007 14. the case of the defendant is that permission was obtained from hubli-dharwad municipal corporation to get the building renovated and in this regard permission was obtained vide ex.d-6 dated 4.11.1986. as could be seen from ex.d-6, municipal authorities had permitted purandara shetty to extend the existing building on the basis of his application dated 31.5.1986. it is very curious to know that ex.d-5 is a completion certificate issued by the same hubli- dharwad municipal authorities on 4.11.1986. on the basis of resolution dated 30.8.1986 passed by the hubli-dharwad municipal corporation, the unauthorized extension was regularized. what is mentioned in ex.d-5 is that the renovation was done on a smaller scale and the deviation was regularized. ex.d- 7 is the building plan submitted to municipal authorities at the time of seeking permission. the author of ex.d-7 is sri.p.k.gupta, a civil engineer. the said plan was submitted to the municipal corporation r.s.a.no.84/2007 18 c/w r.s.a.no.85/2007 proposing to reroof to the existing shed. the estimate is got marked at ex.d-8. according to p.k.gupta, he had prepared the estimate and amount of probable expinditure was rs.7.47 lakhs. mr.gupta is examined as dw-2. what is deposed by mr.gupta is that reconstruction is done in respect of plan is submitted by him. but nothing is forthcoming regarding the amount spent for reconstruction. if the building has undergone sufficient change, as submitted by the learned counsel for the defendants, photographs could have been produced to depict the present structure vis-à-vis earlier structure.15. the attention of this court is drawn to certain admissions culled out from the mouth of pw-1 channabassappa. suggestion put to him that purandara shetty had spent lot of money to get the ganesh lodge renovated has been specifically denied. suggestion put to him that there was an old garage and r.s.a.no.84/2007 19 c/w r.s.a.no.85/2007 shed has been specifically denied. according to him, there was open space. suggestion put to him that ganesh lodge has been suitably altered by purandara shetty after obtaining permission from plaintiff no.2 has been specifically denied.16. the learned counsel for the defendants has relied upon the decision of the apex court in the case of shivayogeshwara cotton press, devangere and others v. m.panchaksharappa and another reported in air1962sc413 this is a decision rendered by bench consisting of 3 judges of the apex court. as per the facts of the said case, the tenant’s claim of permanent tenancy had been rejected by all the courts. lessee was free to give up lease holding any time after 20 years and there was no corresponding right to the lessor and hence, lease was held to be permanent lease. as per the facts of the said case it is held that presumption in favour of transaction creating a r.s.a.no.84/2007 20 c/w r.s.a.no.85/2007 permanent lease cannot be held to have been rebutted by a stipulation in favour of the tenant having the right to surrender the lease at his choice. that being so it must be held that the lease deed evidences an intention to create permanent lease.17. as could be seen from the cotton press, davanagere case, one person by name gamodia of bombay took on lease a piece of agricultural land measuring about 4½ acres belonging to one gurupadappa of davanagere city for the purpose of erecting a gining and pressing cotton factory and it was registered on 26.10.1914. it directed the lessee to erect as many buildings, godowns, factories, bungalows and other structures etc. as he might desire, to pull down, re-erect and make any alterations in the same as he desired and that the lessor would not raise any objection to do so. in fact, lessee had been permitted to sublet or re-let the land to anybody with any condition r.s.a.no.84/2007 21 c/w r.s.a.no.85/2007 he likes. taking into consideration that the lease deed was registered and various covenants of lease deed had virtually created a permanent tenancy, it was ultimately held that, lease in question was a permanent lease.18. in the present case, ex.d4-lease deed is only for one year and it is not registered. there is an unequivocal undertaking of the lessee that he would hand over the possession of the property after one year and that he would not effect any major repair or alteration and that he would only maintain the property. taking into consideration the totality of the conditions imposed in the lease deed marked as ex.d4 and inability of the plaintiff to prove the exact alteration or the renovation done and the amount spent thereto, it is not possible to hold that the tenancy so created is a permanent in nature.19. what is argued before this court is that plaintiff should have issued a notice terminating the r.s.a.no.84/2007 22 c/w r.s.a.no.85/2007 tenancy deals by giving six months time. d.w.1 has admitted that the tenancy was a monthly tenancy and that his father had taken on a monthly tenancy basis. evidence also discloses that up to 1998, monthly rent was paid at the rate of rs.600/- p.m. in the light of the lease deed being not registered and the property being not used for manufacturing purposes, the question of issuing notice giving six months time does not arise.20. in this regard, it is relevant to place reliance of a decision of this court in the case of prasanna vs s.nagalaxmi and others reported in ilr2009kar4144 it is reiterated that there is statutory requirement under section 107 of the transfer of property act to issue six months notice to quit the premises in case, it is used for manufacturing purposes. it is further made clear that, if the lease is not evidenced by a registered document as required under section 107 of the transfer of property act, the rule of construction as envisaged r.s.a.no.84/2007 23 c/w r.s.a.no.85/2007 under section 106 would not be applicable as the statutory requirement of section 107 has not been fulfilled. when the very lease deed is from month to month and when the building is used for running a lodge and hotel, which does not come within the purview of ‘manufacturing’, question of issuing six months notice does not arise.21. in the case of prasanna mentioned above, decision of the hon’ble apex court rendered in samit mukherjee’s case reported in air2001sc1696has been referred to and followed. if there is an oral lease for manufacturing purpose, not created by registered written lease, such lease cannot be construed as from to year to year terminable by six months notice as per section 106 of the transfer of property act. it is held that, 15 days notice terminating the tenancy would be valid. r.s.a.no.84/2007 24 c/w r.s.a.no.85/2007 22. what is argued before this court by the learned counsel for the defendants is that, notice got issued by the plaintiff is not in accordance with law and there is no termination of tenancy in essence. ex.p3 is the copy of the legal notice got issued by the plaintiff on 04.01.1999 to the defendants calling upon them to vacate and hand over the vacant possession of the schedule property. of course, words ‘tenancy has stood terminated’ are not to be found in the said notice. the learned judge of the first appellate court has come to the conclusion that in the absence of such words in the notice, it cannot be construed as a valid notice terminating the tenancy. the learned judge of the first appellate court has adopted a too hyper technical approach in this regard. in paragraph 4 of ex.p3, the legal notice got issued by the plaintiff, it is typed as:23. “therefore, i hereby call upon you on behalf of my clients to hand over the actual and vacant r.s.a.no.84/2007 25 c/w r.s.a.no.85/2007 possession of the said premises within 15 (fifteen) days to my clients, from the date of receipt of this notice, failing which, my clients will be advised to take action for recovery of possession of the said premises from you. in that case, you will be held responsible for the cost and consequences.” 24. the essence of paragraph 4 is nothing but terminating the tenancy and calling upon the defendants to vacate and hand over the vacant possession of the schedule property within 15 days from the date of receipt of the said notice.25. it is in this regard, it is relevant to rely upon a decision of the hon’ble apex court in the case of bhagabandas agarwalla vs. bhagwandas kanu and others reported in air1977sc1120. what is held in the said decision is that, notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed as r.s.a.no.84/2007 26 c/w r.s.a.no.85/2007 valid notice to quit. ex.d4 was got issued on 04.01.1999 and the receipt of the same is not seriously disputed. on 10.01.1999 defendants chose to reply the said notice, but suit came to be filed on 04.02.1999. the monthly tenancy had been terminated by giving 15 days time in that month itself. therefore, for all practical purposes, notice so got issued is a valid notice within the purview of section 106 of the transfer of property act.26. even otherwise, section 106 of the transfer of property act has stood amended with effect from 31.12.2002 vide act 3 of 2003 of the parliament. sub section of 3 of section 106 of amended act, 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. r.s.a.no.84/2007 27 c/w r.s.a.no.85/2007 section 3 of act 3 of 2003 provides for transitory provisions. the provisions of section 106 of the principal act as amended by section 2 shall apply to all notices in pursuance of which any suit or proceedings pending on the finding of this act and all notices which would have been issued before commencing of this act, but where no suit has been filed before such commencement. therefore, the case on hand is also perfectly covered under the transitory provisions as per sub section 3 of act 3 of 2003 also.27. the learned counsel for the respondents/defendants has relied upon the decision of the hon’ble apex court reported in air1982sc127between idandas vs anant ramchandra phadke (dead) by lrs, to contend that six months notice was required in the present case. as per the facts of the said case, tenant was running a flourmill on the leased open land and it was used for manufacturing purposes. r.s.a.no.84/2007 28 c/w r.s.a.no.85/2007 as per the facts of the said case, termination of tenancy required six months advance notice. as already discussed, the property in question is not used for any commercial purposes and more than that it is not registered in accordance with section 107 of the transfer of property act. hence, the said decision is clearly distinguishable on facts and not helpful to the case of the defendants.28. the learned judge of the trial court has passed a detailed judgment assessing the evidence on the touchstone of intrinsic probabilities. if the first appellate court dealing with an appeal under section 96 of cpc intends to upturn a well considered judgment, it has to give cogent and convincing reasons indicating as to where the trial court has gone wrong and what should be the proper approach. in the case of santosh hazari vs purushottam tiwari reported in air2001sc965 a bench consisting 3 hon’ble judges of the r.s.a.no.84/2007 29 c/w r.s.a.no.85/2007 apex court has held that, appellate court has jurisdiction to reverse or affirm the findings of the trial court. first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. it is made clear in the said judgment that the first appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put fort. the task of an appellate court affirming the finding of the trial court is an easy one and hence, it need not reiterate the effect of the evidence or recommending the reasons given by the trial court. under such circumstances, expression of general agreement, according to the decision in santosh hazari’s case, reasons given by the trial court, the decision of which of which is under appeal would ordinarily be sufficient. r.s.a.no.84/2007 30 c/w r.s.a.no.85/2007 29. a caution is given to the first appellate court that, 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 of 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. it is further cautioned that while reversing the finding on fact, the appellate court must r.s.a.no.84/2007 31 c/w r.s.a.no.85/2007 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.30. the learned judge of the first appellate court has adopted a too hyper technical approach in regard to the interpretation of ex.p4. the legal notice got issued under section 106 of transfer of property act and certain admissions culled out from the mouth of p.w.1. have been blown out of proposition. even though p.w.1 was not present at the time when the transaction took place, nothing has been culled out from his mouth to show that sufficient reconstruction has been made by spending huge amount and as a result of the same, a new structure is virtually is in existence on the land where old building existed earlier. the learned judge has attached too much importance r.s.a.no.84/2007 32 c/w r.s.a.no.85/2007 to the testimony of the power of attorney holder who is examined as p.w.1. the case on hand is more dependent upon the documentary evidence than the oral evidence. there is a written document marked as ex.d4, which is the basis for tenancy and admittedly the tenancy is a monthly tenancy. the documents marked as exs.d5 and d6 would go to show that the so called reconstruction done is only an extension and nothing is made known as to what exactly is the extension made. it is ununderstandable as to how a permission for extension and completion certificate could be granted on 04.11.1986 itself. on a conjoint reading of exs.d5 and d6, it appears that the deceased purandar shetty had put up a construction without obtaining permission and that was regularized after a resolution passed by the hubli-dharwad municipal corporation. r.s.a.no.84/2007 33 c/w r.s.a.no.85/2007 31. in this view of the matter, the learned judge of the first appellate court has not properly reassessed the entire evidence in right perspective and the first appellate court has adopted a wrong approach to the real state of affairs by misinterpreting the contents of ex.p4, the legal notice and ex.d4, a tenancy document and exs.d5 and d6, the permission from municipal authorities and the order of regularization of unauthorized construction.32. in this view of the matter, interference is absolutely called for and the appeal bearing no.84/2007 will have to be allowed and consequently, judgment of the first appellate court will have to be set aside by restoring the judgment of the trial court. r.s.a. no.85/2007 33. this regular second appeal has arisen out of a judgment and decree passed in o.s. no.73/1999 and r.a. no.68/2005. both o.s. nos.72 and 73/1999 r.s.a.no.84/2007 34 c/w r.s.a.no.85/2007 were clubbed to record common evidence vide order dated 20.03.2001. hence, the evidence of pw.1 is referable to both the cases and similarly, all documents pertaining to both the cases have been filed. ex. p8 is the lease deed executed by purndarshetty in favour of deceased lessor on 19.02.1980. similarly ex.d2 is the deed executed by deceased lessor g.c. morabad in favour of purndarshetty. ex.p8 is in running kannada handwriting. hence, typed copy of the same is produced before this court. ex.p8 discloses that property bearing city survey no.3014 bearing municipal no.18/2 is the western portion of the building and is situated in rajupet, madhavpura. the said property belonged to lessor channabasappa. the same was taken on lease by purndarshetty on 15.02.1980 and in this regard, on 16.02.1980 a lease deed was executed by him in favour of lessor. as could be seen from ex.p8, the building in question was taken on lease, as he intended to run a bar and restaurant. at the time when r.s.a.no.84/2007 35 c/w r.s.a.no.85/2007 the property was taken, there was a motor garage and the adjacent building bearing municipal no.18/1 had already been taken for running a lodge under the name and style ‘ganesh lodge’. this property was taken on lease on a monthly tenancy basis at the rate of rs.50/- commending 15th of every month and ending on the 14 of every month. he had undertaken to bear all the expenses. in case some renovation was required for the building, he would inform the lessor and thereafter, the lessor to sigh necessary papers in order to obtain permission from the municipality. it was also undertaken by the lessee that he would bear all the expenses in regard to the alternation of the building and that lessor would not be liable to pay any amount. he had undertaken not to alienate the property in any manner and he had no right to alienate and that he would handover the property to the lessor without any objection if they demanded to do so. r.s.a.no.84/2007 36 c/w r.s.a.no.85/2007 34. ex.d1 is the original rent deed executed by deceased channabasappa in favour of purandarshetty. the contents of exs.d1 and p8 are almost same except the last paragraph found in ex.p8. in ex.p8, there is unequivocal undertaking by the lessee undertaking to handover the vacant possession of the building whenever the lessee wanted. that clause is also found in ex.d1 in the last paragraph but the same has been struck off. the struck of portion has been signed by the deceased lessor and the lessee and the witnesses. what is argued before this court by the learned counsel for the defendants is that the very deletion of the clause in ex.d1 which is marked as ex.d1a is beneficial to the case of the defendants. this court is unable to accept this argument for the simple reason that if the same was his intention, the same would not have found place ex.p8. apart from this, ex.d1 is an unregistered document and no permission is accorded by the lessor to the lessee either to put up construction afresh or to r.s.a.no.84/2007 37 c/w r.s.a.no.85/2007 alienate the same or to demolish the existence construction.35. what is argued before this court by the learned counsel for the appellant is that defendants have put up construction. ex.d7 is a plan submitted by the defendants after getting it prepared by dw.2 and that it speaks about the proposed construction to be made in the 1st floor afresh. but ex.d7 speaks about the plan being submitted with an intention to re-roof the existing shed and the open area in the 1st floor. what is argued before this court is that 1st floor has been put up on the existing building where the bar and restaurant is run and therefore, the defendants have become the owners of the super structure. it is in this regard, it is argued that plaintiffs cannot have the vacant possession of the property which was earlier leased to purandarshetty. as already discussed, the evidence of dw.2 p.k.gupta is not decisive in this r.s.a.no.84/2007 38 c/w r.s.a.no.85/2007 regard. what exactly is the amount spent is not forthcoming except furnishing a copy of the estimate. whether the amount mentioned in ex.d8-the estimation report has been actually spent and when the new structure has come into existence on the ground floor is not specifically made out.36. learned counsel for the respondents/defendants has relied upon certain admissions stated to have been elicited from the mouth of pw.1. it is true that pw.1 has admitted that purandarshetty had spent some amount for renovation. it does not mean that purandarshetty had spent huge amount i.e. to an extent of rs.10,00,000/- and has put up a new building. even if the some interior decoration or internal changes are made, it does not amounts to a fresh construction. on the other hand, pw.1 has admitted that there is a two floor building on the bar and restaurant. he has further deposed that there is r.s.a.no.84/2007 39 c/w r.s.a.no.85/2007 only a ground floor and that the portion of the ground floor is only changed by altering the door. he has further asserted that the bar and restaurant building has remained infact for all practical purposes. it cannot be said that vide ex.p8 lessee has undertaken sufficient changes so as to call it as new construction on the existing floor and thereby to treat the same as a permanent lease.37. these facts have not been properly analised by the first appellate court while upturning the well considered judgment of the trial court. the learned judge of the first appellate court, as already discussed earlier, has adopted a too hyper technical approach to set aside the well considered judgment of the trial court. suffice to state that the evidence placed on record are sufficient to hold that the tenancy in question was a monthly tenancy and that has been terminated in accordance with law. the case on hand is r.s.a.no.84/2007 40 c/w r.s.a.no.85/2007 not permanent lease more particularly, when it is not a registered document. even otherwise, by looking to the over all contents of lease deed, it is evident that the plaintiffs are not denuded of their power of absolute ownership. the defendants have not been conferred with any power either to put up buildings afresh or to demolish the existing building or to alienate the same in any manner either to sublet or relet etc.38. in this view of the matter, the substantial question of law framed in these cases are answered in the negative holding that the lower appellate court is not justified in reversing the judgment of the trial court and dismissing the suit. hence, the appeals will have to be allowed and the judgment of the first appellate court will have to be set aside. consequently, the judgments of the trial court will have to be affirmed. it is made clear that the position of law applicable in the r.s.a.no.84/2007 41 c/w r.s.a.no.85/2007 connected appeal is applicable to the present case also as it is identical in nature. order appeals filed under section 100 of c.p.c. in rsa nos.84 and 85/2007 is allowed and consequently judgment of the first appellate court in r.a. no.67 and 68/2008 are set aside. the judgment of the trial court passed in o.s. nos.72 and 73/1999 which were pending on the file of the 4th addl. civil judge (jr.dn.) hubli are restored with costs. anyhow, some breathing time will have to be given the respondents-defendants since they have to find alternative accommodation more particularly when they are earning income from the present building. hence, (1) one year time is granted i.e. till 15th august 2015 to vacate and handover the possession of both the suit properties subject to the condition that the respondents-defendants shall execute separate r.s.a.no.84/2007 42 c/w r.s.a.no.85/2007 undertaking in this court within one month from today undertaking to vacate and handover the vacant possession of the suit property failing which the plaintiffs are at liberty to take possession in accordance with law by filing execution petition. in view of one year time being given, the respondents-defendants shall pay rs.5,000/- each as mean profit in respect of both the buildings from today till they handover the vacant possession of the each building. in case undertaking is not filed within one and half months from today relief of extension of time will not be available to the defendants after one month from today. bs sd/- judge

Judgment:

R.S.A.No.84/2007 1 C/W R.S.A.No.85/2007 R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE17h DAY OF JULY2014BEFORE THE HON’BLE MR. JUSTICE A.V.CHANDRASHEKARA R.S.A. NO.84/2007 C/W R.S.A. NO.85/2007 R.S.A. NO.84/2007 BETWEEN:

1.

2. 3.

4.

5. SMT RUDRAVVA W/O CHANNABASAPPA MORAB AGED ABOUT76YRS, HOUSEHOLDER R/O MATTI VONI,HUBLI. SMT SAROJA W/O GIRIMALLAPPA MORAB AGED ABOUT47YRS, HOSUEHOLDER R/O MATTI VONI HUBLI SMT BHARATHI W/O CHANDRAKANTH MORAB AGED ABOUT30YRS, HOUSEHOLDER R/O MATTI ONI HUBLI KUMARI ANNAPURNA D/O GIRIMALLAPPA MORAB AGED ABOUT25YRS HOUSEHOLDER R/O MATTI VONI, HUBLI KUMARI VIDYA D/O GIRIMALLAPPA MORAB AGED ABOUT21YRS HOUSEHOLDER R.S.A.No.84/2007 2 C/W R.S.A.No.85/2007 6.

7. R/O MATTI VONI, HUBLI KUMARI MEGHA D/O GIRIMALLAPPA MORAB AGED ABOUT21YRS HOUSEHOLDER R/O MATTI VONI, HUBLI KUMAR VINAYKUMAR S/O GURUMALLAPPA MORAB AGED ABOUT21YRS HOUSEHOLDER R/O MATTI VONI, HUBLI. (BY SRI.K.L.PATIL : SMT. S.S.BETURMATH, ADV.,) ... APPELLANTS AND1 2. 3.

4. SMT SUMA W/O K PURANDARSHETTY AGED ABOUT51YRS HOUSEHOLDER R/O ARAVIND NAGAR HUBLI SHRI PRASHANTH S/O K PURANDASHETTY AGED ABOUT30YRS STUDENT, R/O ARAVIND NAGAR HUBLI SHRI SHASHIKANTH S/O K PURANDASHETTY AGED ABOUT29YRS BUSINESS, R/O ARAVIND NAGAR HUBLI KUMARI LAVANYA D/O K PURANDARSHETTY, AGED ABOUT24YRS HOUSEHOLDER, R/O ARAVIND NAGAR HUBLI. ... RESPONDENTS R.S.A.No.84/2007 3 C/W R.S.A.No.85/2007 (BY 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 ) THIS RSA FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED:

11. 10.2006 PASSED IN R.A.No.67/2005 ON THE FILE OF THE II ADDL.CIVIL JUDGE (SR.DN.), HUBLI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED:

3. 3.2005 PASSED IN OS.No.72/1999 ON THE FILE OF THE IV ADDL.CIVIL JUDGE (JR.DN.), HUBLI. R.S.A. NO.85/2007 (RES) BETWEEN:

1. SMT RUDRAVVA W/O CHANNABASAPPA MORAB AGED ABOUT76YRS, HOUSEHOLDER R/O MATTI VONI HUBLI. VIDE COURT

ORDER

DATED1102.2011 APPELLANT NO.2 TO L7 ARE TO BE TREATED AS LEGAL REPRESENTATIVES OF APPELLANT NO.1. 1A. SMT SAROJA W/O GIRIMALLAPPA MORAB AGED ABOUT47YRS, HOUSEHOLDER R/O MATTI VONI, HUBLI. 1B. SMT BHARATHI W/O CHANDRAKANTH MORAB AGED ABOUT30YRS, HOUSEHOLDER R/O MATTI VONI HUBLI1. KUMARI ANNAPURNA D/O GIRIMALLAPPA MORAB AGED ABOUT25YRS, HOUSEHOLDER R/O MATTI VONI HUBLI R.S.A.No.84/2007 4 C/W R.S.A.No.85/2007 1D. KUMARI VIDYA D/O GIRIMALLAPPA MORAB AGED ABOUT21YRS, HOUSEHOLDER R/O MATTI VONI HUBLI1. KUMARI MEGHA D/O GIRIMALLAPPA MORAB AGED ABOUT21YRS, HOUSEHOLDER R/O MATTI VONI HUBLI1. KUMAR VINAYKUMAR S/O GURUMALLAPPA MORAB AGED ABOUT21YRS, HOUSEHOLDER R/O MATTI VONI HUBLI. ... APPELLANTS (BY SRI.K.L.PATIL ADV., : S.S.BETURMATH, ADV.,) AND1 2. 3.

4. SMT SUMA W/O K PURANDARSHETTY AGEDABOUT51YRS, HOUSEHOLDER R/O ARAVIND NAGAR, HUBLI SHRI PRASHANTH S/O K PURANDARSHETTY AGED ABOUT30YRS, STUDENT R/O ARAVIND NAGAR, HUBLI SHRI SHASHIKANTH S/O K PURANDARSHETTY AGED ABOUT29YRS BUSINESSMAN, R/O ARAVIND NAGAR HUBLI KUMARI LAVANYA D/O K PURANDARSHETTY AGED ABOUT24YRS HOUSEHOLDER R/O ARAVIND NAGAR HUBLI. ... RESPONDENTS R.S.A.No.84/2007 5 C/W R.S.A.No.85/2007 (BY SMT. PALLAVI PACHCHAPURE, ADV., FOR SRI.SRINAND A PACHCHAPURE, ADV., FOR R1 TO R3, NOTICE TO R2 AND R4 HELD SUFFICIENT) THIS RSA FILED U/S. 100 OF CPC AGAINST THE IN JUDGEMENT & DECREE DATED:

11. 10.2006 PASSED R.A.No.68/2005 ON THE FILE OF THE II ADDL.CIVIL JUDGE (SR.DN.), HUBLI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED:

3. 3.2005 PASSED IN OS.No.73/1999 ON THE FILE OF THE IV ADDL.CIVIL JUDGE (JR.DN.), HUBLI. THESE APPEALS COMING ON CONTINUATION ARGUMENT, DELIVERED THE FOLLOWING: FURTHER THIS DAY, THE COURT FOR

JUDGMENT

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 6 C/W R.S.A.No.85/2007 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 R.S.A.No.84/2007 7 C/W R.S.A.No.85/2007 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 R.S.A.No.84/2007 8 C/W R.S.A.No.85/2007 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 R.S.A.No.84/2007 9 C/W R.S.A.No.85/2007 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. RECASTED ISSUE:

1. Whether the plaintiff prove that the term of tenancy of late Purandhara Shetty is completed?. ISSUES1 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?. R.S.A.No.84/2007 10 C/W R.S.A.No.85/2007 5. Whether the plaintiffs entitled for the possession of the suit property?. ADDITIONAL ISSUES:

1. Whether this Court has got pecuniary jurisdiction to try this suit?.

2. Whether this suit is not maintainable as contended in para No.18(A) of written statement?.

3. Whether the defendant proves that this Court has no jurisdiction to enteralia this suit as contended in para 20(A) written statement?.

4. Whether the plaintiffs prove that the defendants are defaulter in payment of rent?.

5. Whether the defendants prove that there is no legal and valid terminatin of tenancy as required under T.P. Act?. ISSUES:

7. What order or decree?.

7. One Channabasappa Veerappa Marad is examined as PW.1 on the strength of power of attorney executed by plaintiff. Sri.Shashikant Shetty is examined as DW.1. 9 exhibits have been got marked as Exs.P1 to P9 R.S.A.No.84/2007 11 C/W R.S.A.No.85/2007 on behalf of plaintiffs. 8 exhibits have been got marked on behalf of defendants. Ultimately, suit came to be decreed answering issues No.1, 2, 5, 6 additional issue No.1 in the affirmative and remaining issues in the negative. It is held issue No.3 does not arise for consideration. Ultimately, suit came to be decreed directing the defendants to vacate and hand over the vacant possession of the suit property to the plaintiffs within two months from 03.03.2005 the date of judgment. Against the said judgment and decree, appeal came to be filed by plaintiffs under Section 96 of C.P.C. in R.A. No.67/2005 before the Court of 2nd Additional Civil Judge (Sr.Dn.), Hubli. The said appeal has been allowed in its entirety and consequently, O.S. No.72/1999 has been dismissed by setting aside the judgement and decree. It is this divergent judgment which is called in question before this Court in R.S.A. No.84/2007. R.S.A.No.84/2007 12 C/W R.S.A.No.85/2007 8. DW.2 – P.K. Gupta who is a Civil Engineer and consultant carrying on his profession in Hubli has deposed that he has personally visited the hotel. According to him, the building in question was in a dilapidated condition and on the request of Sri.Purandarshetty he had prepared a plan and estimate of the said building.

9. What is argued before this Court by the learned Counsel for the respondents/defendants is that PW-1 Mr.Channabassappa has no locus standi to tender evidence on behalf of the plaintiffs when plaintiff No.1 was alive at the time of commencement of recording the evidence. Of course, PW-1 is the brother- in-law of deceased plaintiff No.2. On going through the evidence of PW-1, it is noticed that he had withdrawn the arrears of rent from the Court and he was aware of facts of the present case. Though he is not a member of the family of plaintiff, he knew about the facts of the R.S.A.No.84/2007 13 C/W R.S.A.No.85/2007 case very much. Therefore, his evidence cannot be eschewed from consideration. Infact, while cross- examining PW-1, PW-1 has deposed that second defendant’s sister is given in marriage to him and he is a LIC agent at Dharwad. He has admitted to the suggestion put to him that Ganesh Lodge was taken on lease by Purandara Shetty from Chennabasappa. Since he was very much conversant with the signature and handwriting of the deceased lessor, he has identified the signature found on the documents.

10. The learned Counsel for the respondents/defendants has argued at length in regard to lease deed marked at Ex.D-4 relating to Ganesh Lodge. Signature of Chennabasappa found on the lease deed is not disputed. Ex.D-4 is in running handwriting and it would be difficult to read it and hence typed copy of it is made available. R.S.A.No.84/2007 14 C/W R.S.A.No.85/2007 11. What is argued before this Court by the learned Counsel for the defendants is that on reading the entire contents of Ex.D-4 it is evident that the lease so created is of permanent character and hence, plaintiffs cannot seek the relief of possession. It is argued before this Court that pursuant to the conditions imposed in Ex.D-4, the deceased Purandara Shetty got renovated the building by spending more than Rs.10,00,000/- and therefore, superstructure now standing on the land is virtually a new superstructure and hence, plaintiff cannot have land from the defendants. Therefore, it is very essential to have a detailed look into the same to know whether it has created a permanent lease.

12. On going through the typed copy of Ex.D-4, it is evident that as on 15.4.1979, Ganesh Lodge building was taken on lease by Purandara Shetty in order to run a lodge and restaurant at the rate of R.S.A.No.84/2007 15 C/W R.S.A.No.85/2007 Rs.600/- per month. In paragraph 2 of Ex.D-4, it is specifically mentioned that lease was for a period of one year only and he had agreed to pay rent and obtain receipt from the lessor. He had agreed to pay all electricity charges and to pay necessary bills regarding electricity consumption and water consumption. Ex.D-4 speaks about the responsibility of lessor to pay property tax to the Municipal Corporation. Purandara Shetty had agreed to get the building repaired without causing damage to the existing building on his own and had undertaken that he would hand over the possession of the suit property premises to the lessor after the expiry of the period mentioned in Ex.D-4 without any objection. He had even agreed not to transfer the property to anybody and that he would bear the expenses in connection with whitewash and painting of the building. It is also mentioned in Ex.D-4 that in case the main wall were to fall, lessor should reconstruct the same out of his own costs and lessee had even agreed to R.S.A.No.84/2007 16 C/W R.S.A.No.85/2007 give back the furniture to lessor which belonged to lessor. On a plain reading of Ex.D-4, it is evident that deed has not created permanent tenancy as requisite conditions for creating permanent tenancy are lacking.

13. Section 107 of Transfer of Property Act speaks about the manner in which leases may be made in respect of immovable property from year to year 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 the first paragraph of the provisions of Section 107 of TP Act, lease cannot be allowed to be circumvented for setting up permanent tenancy. In the absence of registered document, lease shall be deemed to be leased from month to month. R.S.A.No.84/2007 17 C/W R.S.A.No.85/2007 14. The case of the defendant is that permission was obtained from Hubli-Dharwad Municipal Corporation to get the building renovated and in this regard permission was obtained vide Ex.D-6 dated 4.11.1986. As could be seen from Ex.D-6, Municipal Authorities had permitted Purandara Shetty to extend the existing building on the basis of his application dated 31.5.1986. It is very curious to know that Ex.D-5 is a completion certificate issued by the same Hubli- Dharwad Municipal Authorities on 4.11.1986. On the basis of resolution dated 30.8.1986 passed by the Hubli-Dharwad Municipal Corporation, the unauthorized extension was regularized. What is mentioned in Ex.D-5 is that the renovation was done on a smaller scale and the deviation was regularized. Ex.D- 7 is the building plan submitted to Municipal Authorities at the time of seeking permission. The author of Ex.D-7 is Sri.P.K.Gupta, a Civil Engineer. The said plan was submitted to the Municipal Corporation R.S.A.No.84/2007 18 C/W R.S.A.No.85/2007 proposing to reroof to the existing shed. The estimate is got marked at Ex.D-8. According to P.K.Gupta, he had prepared the estimate and amount of probable expinditure was Rs.7.47 Lakhs. Mr.Gupta is examined as DW-2. What is deposed by Mr.Gupta is that reconstruction is done in respect of plan is submitted by him. But nothing is forthcoming regarding the amount spent for reconstruction. If the building has undergone sufficient change, as submitted by the learned Counsel for the defendants, photographs could have been produced to depict the present structure vis-à-vis earlier structure.

15. The attention of this Court is drawn to certain admissions culled out from the mouth of PW-1 Channabassappa. Suggestion put to him that Purandara Shetty had spent lot of money to get the Ganesh Lodge renovated has been specifically denied. Suggestion put to him that there was an old garage and R.S.A.No.84/2007 19 C/W R.S.A.No.85/2007 shed has been specifically denied. According to him, there was open space. Suggestion put to him that Ganesh Lodge has been suitably altered by Purandara Shetty after obtaining permission from plaintiff No.2 has been specifically denied.

16. The learned Counsel for the defendants has relied upon the decision of the Apex Court in the case of Shivayogeshwara Cotton Press, Devangere and others v. M.Panchaksharappa and another reported in AIR1962SC413 This is a decision rendered by Bench consisting of 3 Judges of the Apex Court. As per the facts of the said case, the tenant’s claim of permanent tenancy had been rejected by all the Courts. Lessee was free to give up lease holding any time after 20 years and there was no corresponding right to the lessor and hence, lease was held to be permanent lease. As per the facts of the said case it is held that presumption in favour of transaction creating a R.S.A.No.84/2007 20 C/W R.S.A.No.85/2007 permanent lease cannot be held to have been rebutted by a stipulation in favour of the tenant having the right to surrender the lease at his choice. That being so it must be held that the lease deed evidences an intention to create permanent lease.

17. As could be seen from the Cotton Press, Davanagere case, one person by name Gamodia of Bombay took on lease a piece of agricultural land measuring about 4½ acres belonging to one Gurupadappa of Davanagere City for the purpose of erecting a Gining and Pressing Cotton Factory and it was registered on 26.10.1914. It directed the lessee to erect as many buildings, godowns, factories, bungalows and other structures etc. as he might desire, to pull down, re-erect and make any alterations in the same as he desired and that the lessor would not raise any objection to do so. In fact, lessee had been permitted to sublet or re-let the land to anybody with any condition R.S.A.No.84/2007 21 C/W R.S.A.No.85/2007 he likes. Taking into consideration that the lease deed was registered and various covenants of lease deed had virtually created a permanent tenancy, it was ultimately held that, lease in question was a permanent lease.

18. In the present case, Ex.D4-lease deed is only for one year and it is not registered. There is an unequivocal undertaking of the lessee that he would hand over the possession of the property after one year and that he would not effect any major repair or alteration and that he would only maintain the property. Taking into consideration the totality of the conditions imposed in the lease deed marked as Ex.D4 and inability of the plaintiff to prove the exact alteration or the renovation done and the amount spent thereto, it is not possible to hold that the tenancy so created is a permanent in nature.

19. What is argued before this Court is that plaintiff should have issued a notice terminating the R.S.A.No.84/2007 22 C/W R.S.A.No.85/2007 tenancy deals by giving six months time. D.W.1 has admitted that the tenancy was a monthly tenancy and that his father had taken on a monthly tenancy basis. Evidence also discloses that up to 1998, monthly rent was paid at the rate of Rs.600/- p.m. In the light of the lease deed being not registered and the property being not used for manufacturing purposes, the question of issuing notice giving six months time does not arise.

20. In this regard, it is relevant to place reliance of a decision of this Court in the case of Prasanna Vs S.Nagalaxmi and Others reported in ILR2009KAR4144 It is reiterated that there is statutory requirement under Section 107 of the Transfer of Property Act to issue six months notice to quit the premises in case, it is used for manufacturing purposes. It is further made clear that, if the lease is not evidenced by a registered document as required under Section 107 of the Transfer of Property Act, the rule of construction as envisaged R.S.A.No.84/2007 23 C/W R.S.A.No.85/2007 under Section 106 would not be applicable as the statutory requirement of Section 107 has not been fulfilled. When the very lease deed is from month to month and when the building is used for running a lodge and hotel, which does not come within the purview of ‘manufacturing’, question of issuing six months notice does not arise.

21. In the case of Prasanna mentioned above, decision of the Hon’ble Apex Court rendered in Samit Mukherjee’s case reported in AIR2001SC1696has been referred to and followed. If there is an oral lease for manufacturing purpose, not created by registered written lease, such lease cannot be construed as from to year to year terminable by six months notice as per Section 106 of the Transfer of Property Act. It is held that, 15 days notice terminating the tenancy would be valid. R.S.A.No.84/2007 24 C/W R.S.A.No.85/2007 22. What is argued before this Court by the learned counsel for the defendants is that, notice got issued by the plaintiff is not in accordance with law and there is no termination of tenancy in essence. Ex.P3 is the copy of the legal notice got issued by the plaintiff on 04.01.1999 to the defendants calling upon them to vacate and hand over the vacant possession of the schedule property. Of course, words ‘tenancy has stood terminated’ are not to be found in the said notice. The learned Judge of the first appellate Court has come to the conclusion that in the absence of such words in the notice, it cannot be construed as a valid notice terminating the tenancy. The learned Judge of the first appellate Court has adopted a too hyper technical approach in this regard. In paragraph 4 of Ex.P3, the legal notice got issued by the plaintiff, it is typed as:

23. “Therefore, I hereby call upon you on behalf of my clients to hand over the actual and vacant R.S.A.No.84/2007 25 C/W R.S.A.No.85/2007 possession of the said premises within 15 (fifteen) days to my clients, from the date of receipt of this notice, failing which, my clients will be advised to take action for recovery of possession of the said premises from you. In that case, you will be held responsible for the cost and consequences.” 24. The essence of paragraph 4 is nothing but terminating the tenancy and calling upon the defendants to vacate and hand over the vacant possession of the schedule property within 15 days from the date of receipt of the said notice.

25. It is in this regard, it is relevant to rely upon a decision of the Hon’ble Apex Court in the case of Bhagabandas Agarwalla Vs. Bhagwandas Kanu and Others reported in AIR1977SC1120. What is held in the said decision is that, notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed as R.S.A.No.84/2007 26 C/W R.S.A.No.85/2007 valid notice to quit. Ex.D4 was got issued on 04.01.1999 and the receipt of the same is not seriously disputed. On 10.01.1999 defendants chose to reply the said notice, but suit came to be filed on 04.02.1999. The monthly tenancy had been terminated by giving 15 days time in that month itself. Therefore, for all practical purposes, notice so got issued is a valid notice within the purview of Section 106 of the Transfer of Property Act.

26. Even otherwise, Section 106 of the Transfer of Property Act has stood amended with effect from 31.12.2002 vide Act 3 of 2003 of the Parliament. Sub Section of 3 of Section 106 of amended Act, 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. R.S.A.No.84/2007 27 C/W R.S.A.No.85/2007 Section 3 of Act 3 of 2003 provides for transitory provisions. The provisions of Section 106 of the Principal Act as amended by Section 2 shall apply to all notices in pursuance of which any suit or proceedings pending on the finding of this Act and all notices which would have been issued before commencing of this Act, but where no suit has been filed before such commencement. Therefore, the case on hand is also perfectly covered under the transitory provisions as per Sub Section 3 of Act 3 of 2003 also.

27. The learned counsel for the respondents/defendants has relied upon the decision of the Hon’ble Apex Court reported in AIR1982SC127between Idandas Vs Anant Ramchandra Phadke (Dead) by Lrs, to contend that six months notice was required in the present case. As per the facts of the said case, tenant was running a flourmill on the leased open land and it was used for manufacturing purposes. R.S.A.No.84/2007 28 C/W R.S.A.No.85/2007 As per the facts of the said case, termination of tenancy required six months advance notice. As already discussed, the property in question is not used for any commercial purposes and more than that it is not registered in accordance with Section 107 of the Transfer of Property Act. Hence, the said decision is clearly distinguishable on facts and not helpful to the case of the defendants.

28. The learned Judge of the trial Court has passed a detailed judgment assessing the evidence on the touchstone of intrinsic probabilities. If the first appellate Court dealing with an appeal under Section 96 of CPC intends to upturn a well considered judgment, it has to give cogent and convincing reasons indicating as to where the trial Court has gone wrong and what should be the proper approach. In the case of Santosh Hazari vs Purushottam Tiwari reported in AIR2001SC965 a Bench consisting 3 Hon’ble Judges of the R.S.A.No.84/2007 29 C/W R.S.A.No.85/2007 Apex Court has held that, appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. It is made clear in the said judgment that the first appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put fort. The task of an appellate Court affirming the finding of the trial Court is an easy one and hence, it need not reiterate the effect of the evidence or recommending the reasons given by the trial Court. Under such circumstances, expression of general agreement, according to the decision in Santosh Hazari’s case, reasons given by the trial Court, the decision of which of which is under appeal would ordinarily be sufficient. R.S.A.No.84/2007 30 C/W R.S.A.No.85/2007 29. A caution is given to the first appellate Court that, 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 of 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. It is further cautioned that while reversing the finding on fact, the appellate Court must R.S.A.No.84/2007 31 C/W R.S.A.No.85/2007 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.

30. The learned Judge of the first appellate Court has adopted a too hyper technical approach in regard to the interpretation of Ex.P4. The legal notice got issued under Section 106 of Transfer of Property Act and certain admissions culled out from the mouth of P.W.1. have been blown out of proposition. Even though P.W.1 was not present at the time when the transaction took place, nothing has been culled out from his mouth to show that sufficient reconstruction has been made by spending huge amount and as a result of the same, a new structure is virtually is in existence on the land where old building existed earlier. The learned Judge has attached too much importance R.S.A.No.84/2007 32 C/W R.S.A.No.85/2007 to the testimony of the Power of Attorney holder who is examined as P.W.1. The case on hand is more dependent upon the documentary evidence than the oral evidence. There is a written document marked as Ex.D4, which is the basis for tenancy and admittedly the tenancy is a monthly tenancy. The documents marked as Exs.D5 and D6 would go to show that the so called reconstruction done is only an extension and nothing is made known as to what exactly is the extension made. It is ununderstandable as to how a permission for extension and completion certificate could be granted on 04.11.1986 itself. On a conjoint reading of Exs.D5 and D6, it appears that the deceased Purandar Shetty had put up a construction without obtaining permission and that was regularized after a resolution passed by the Hubli-Dharwad Municipal Corporation. R.S.A.No.84/2007 33 C/W R.S.A.No.85/2007 31. In this view of the matter, the learned Judge of the first appellate Court has not properly reassessed the entire evidence in right perspective and the first appellate Court has adopted a wrong approach to the real state of affairs by misinterpreting the contents of Ex.P4, the legal notice and Ex.D4, a tenancy document and Exs.D5 and D6, the permission from municipal authorities and the order of regularization of unauthorized construction.

32. In this view of the matter, interference is absolutely called for and the appeal bearing No.84/2007 will have to be allowed and consequently, judgment of the First Appellate Court will have to be set aside by restoring the judgment of the Trial Court. R.S.A. NO.85/2007 33. This Regular Second Appeal has arisen out of a judgment and decree passed in O.S. No.73/1999 and R.A. No.68/2005. Both O.S. Nos.72 and 73/1999 R.S.A.No.84/2007 34 C/W R.S.A.No.85/2007 were clubbed to record common evidence vide order dated 20.03.2001. Hence, the evidence of PW.1 is referable to both the cases and similarly, all documents pertaining to both the cases have been filed. Ex. P8 is the lease deed executed by Purndarshetty in favour of deceased lessor on 19.02.1980. Similarly Ex.D2 is the deed executed by deceased lessor G.C. Morabad in favour of Purndarshetty. Ex.P8 is in running Kannada handwriting. Hence, typed copy of the same is produced before this Court. Ex.P8 discloses that property bearing City Survey No.3014 bearing Municipal No.18/2 is the western portion of the building and is situated in Rajupet, Madhavpura. The said property belonged to lessor Channabasappa. The same was taken on lease by Purndarshetty on 15.02.1980 and in this regard, on 16.02.1980 a lease deed was executed by him in favour of lessor. As could be seen from Ex.P8, the building in question was taken on lease, as he intended to run a bar and restaurant. At the time when R.S.A.No.84/2007 35 C/W R.S.A.No.85/2007 the property was taken, there was a motor garage and the adjacent building bearing municipal No.18/1 had already been taken for running a lodge under the name and style ‘Ganesh Lodge’. This property was taken on lease on a monthly tenancy basis at the rate of Rs.50/- commending 15th of every month and ending on the 14 of every month. He had undertaken to bear all the expenses. In case some renovation was required for the building, he would inform the lessor and thereafter, the lessor to sigh necessary papers in order to obtain permission from the municipality. It was also undertaken by the lessee that he would bear all the expenses in regard to the alternation of the building and that lessor would not be liable to pay any amount. He had undertaken not to alienate the property in any manner and he had no right to alienate and that he would handover the property to the lessor without any objection if they demanded to do so. R.S.A.No.84/2007 36 C/W R.S.A.No.85/2007 34. Ex.D1 is the original rent deed executed by deceased Channabasappa in favour of Purandarshetty. The contents of Exs.D1 and P8 are almost same except the last paragraph found in Ex.P8. In Ex.P8, there is unequivocal undertaking by the lessee undertaking to handover the vacant possession of the building whenever the lessee wanted. That clause is also found in Ex.D1 in the last paragraph but the same has been struck off. The struck of portion has been signed by the deceased lessor and the lessee and the witnesses. What is argued before this Court by the learned Counsel for the defendants is that the very deletion of the clause in Ex.D1 which is marked as Ex.D1a is beneficial to the case of the defendants. This Court is unable to accept this argument for the simple reason that if the same was his intention, the same would not have found place Ex.P8. Apart from this, Ex.D1 is an unregistered document and no permission is accorded by the lessor to the lessee either to put up construction afresh or to R.S.A.No.84/2007 37 C/W R.S.A.No.85/2007 alienate the same or to demolish the existence construction.

35. What is argued before this Court by the learned Counsel for the appellant is that defendants have put up construction. Ex.D7 is a plan submitted by the defendants after getting it prepared by DW.2 and that it speaks about the proposed construction to be made in the 1st floor afresh. But Ex.D7 speaks about the plan being submitted with an intention to re-roof the existing shed and the open area in the 1st floor. What is argued before this Court is that 1st floor has been put up on the existing building where the bar and restaurant is run and therefore, the defendants have become the owners of the super structure. It is in this regard, it is argued that plaintiffs cannot have the vacant possession of the property which was earlier leased to Purandarshetty. As already discussed, the evidence of DW.2 P.K.Gupta is not decisive in this R.S.A.No.84/2007 38 C/W R.S.A.No.85/2007 regard. What exactly is the amount spent is not forthcoming except furnishing a copy of the estimate. Whether the amount mentioned in Ex.D8-the estimation report has been actually spent and when the new structure has come into existence on the ground floor is not specifically made out.

36. Learned Counsel for the respondents/defendants has relied upon certain admissions stated to have been elicited from the mouth of PW.1. It is true that PW.1 has admitted that Purandarshetty had spent some amount for renovation. It does not mean that Purandarshetty had spent huge amount i.e. to an extent of Rs.10,00,000/- and has put up a new building. Even if the some interior decoration or internal changes are made, it does not amounts to a fresh construction. On the other hand, PW.1 has admitted that there is a two floor building on the bar and restaurant. He has further deposed that there is R.S.A.No.84/2007 39 C/W R.S.A.No.85/2007 only a ground floor and that the portion of the ground floor is only changed by altering the door. He has further asserted that the bar and restaurant building has remained infact for all practical purposes. It cannot be said that vide Ex.P8 lessee has undertaken sufficient changes so as to call it as new construction on the existing floor and thereby to treat the same as a permanent lease.

37. These facts have not been properly analised by the First Appellate Court while upturning the well considered judgment of the Trial Court. The learned Judge of the First Appellate Court, as already discussed earlier, has adopted a too hyper technical approach to set aside the well considered judgment of the Trial Court. Suffice to state that the evidence placed on record are sufficient to hold that the tenancy in question was a monthly tenancy and that has been terminated in accordance with law. The case on hand is R.S.A.No.84/2007 40 C/W R.S.A.No.85/2007 not permanent lease more particularly, when it is not a registered document. Even otherwise, by looking to the over all contents of lease deed, it is evident that the plaintiffs are not denuded of their power of absolute ownership. The defendants have not been conferred with any power either to put up buildings afresh or to demolish the existing building or to alienate the same in any manner either to sublet or relet etc.

38. In this view of the matter, the substantial question of law framed in these cases are answered in the negative holding that the lower Appellate Court is not justified in reversing the judgment of the Trial Court and dismissing the suit. Hence, the appeals will have to be allowed and the judgment of the First Appellate Court will have to be set aside. Consequently, the judgments of the Trial Court will have to be affirmed. It is made clear that the position of law applicable in the R.S.A.No.84/2007 41 C/W R.S.A.No.85/2007 connected appeal is applicable to the present case also as it is identical in nature.

ORDER

Appeals filed under Section 100 of C.P.C. in RSA Nos.84 and 85/2007 is allowed and consequently judgment of the First Appellate Court in R.A. No.67 and 68/2008 are set aside. The judgment of the Trial Court passed in O.S. Nos.72 and 73/1999 which were pending on the file of the 4th Addl. Civil Judge (Jr.Dn.) Hubli are restored with costs. Anyhow, some breathing time will have to be given the respondents-defendants since they have to find alternative accommodation more particularly when they are earning income from the present building. Hence, (1) one year time is granted i.e. till 15th August 2015 to vacate and handover the possession of both the suit properties subject to the condition that the respondents-defendants shall execute separate R.S.A.No.84/2007 42 C/W R.S.A.No.85/2007 undertaking in this Court within one month from today undertaking to vacate and handover the vacant possession of the suit property failing which the plaintiffs are at liberty to take possession in accordance with law by filing execution petition. In view of one year time being given, the respondents-defendants shall pay Rs.5,000/- each as mean profit in respect of both the buildings from today till they handover the vacant possession of the each building. In case undertaking is not filed within one and half months from today relief of extension of time will not be available to the defendants after one month from today. BS SD/- JUDGE