SRI M SHANKAR v. SRI M S SURENDRA

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3. It is the case of the plaintiff that the plaintiff is the owner of the suit schedule property. Defendant No.1 has taken the premises for lease to put Eicher Canter Vans and other types of vans Showroom-cum-Service Station. There is a lease agreement executed on 03.03.2002 and the lease period is for 20 years. The monthly rent amount is Rs.52,900/- pm. It is the case of the plaintiff that defendant No.1 had encroached the property of the plaintiff's sister by putting structure without the knowledge of the plaintiff and the plaintiff's sister filed a suit in O.S.No.2747/2012 and it was decreed. On the allegation that defendant No.1 had breached lease conditions of lease agreement, therefore, by issuing notice as required under Section 106 of the Transfer of Property Act (hereinafter referred to as "TP Act"), the plaintiff has filed a suit for possession, damages and permanent injunction, which came to be decreed.

4. Defendant No.1 has filed the written statement admitting the execution of lease agreement and the

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relationship of landlord and tenant, but denied the encroachment alleged by the plaintiff. Therefore, he prays to dismiss the suit.

5. On the pleadings, the trail Court framed the following issues:

i. Whether the plaintiff proves the valid termination of Lease Deed dated 03.03.2002?

ii. Whether the plaintiff proves that defendant is liable to pay damages as prayed?

iii. Whether the plaintiff is entitled for the reliefs as prayed for?

iv. What order or Decree?

6. The plaintiff was examined as PW.1 and got marked documentary evidence as Ex.P.1 to Ex.P.14. Defendant No.1 was examined as D.W.1 and got marked documentary evidence as Ex.D.1 to Ex.D.14.

7. The trial Court after considering the case and evidence on record has given findings that since defendant No.1 admitted the relationship of landlord and tenant and the plaintiff is the owner of the suit schedule property and

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after encroaching the property of plaintiff's sister, the suit filed by the plaintiff's sister was decreed. Therefore, upon violation of lease terms and conditions and termination notice issued is a valid termination. Hence, decreed the suit in favour of the plaintiff.

8. Learned counsel for the appellant/defendant No.1 submitted that against the judgment and decree passed in OS.No.2747/2012, defendant No.1 has filed Appeal and it is pending before the Appellate Court. Therefore, the alleged encroachment is not decided, so as to hold that there is breach of lease. Further submitted that the plaintiff has encroached the property of his sister. Therefore, the plaintiff was also guilty of the encroachment, but insofar as decreeing the suit, the finding is given that both plaintiff and defendant No.1 have encroached the suit schedule property.

9. Further argued that, the lease deed is unregistered one. Therefore, it is inadmissible as per Section 49 of the Registration Act. Further submitted that

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defendant No.1 has produced the lease deed and in the lease deed the period mentioned is 20 years. Therefore, defendant No.1 is entitled for protection of the possession as per Section 53-A of the Transfer of Property Act (for brevity T.P Act). Therefore, submitted that, though, the lease deed is unregistered one, but defendant No.1 is entitled for protection as per Section 53-A of the TP Act. Since in the lease deed, the period of tenancy is 20 years and before that, the plaintiff has filed the suit, which is not maintainable. Therefore, on all these grounds, learned counsel canvassed arguments and prays to allow the appeal and set aside the judgment and decree passed by the trial Court.

10. On the other hand, learned counsel for respondent No.1/plaintiff submitted that defendant No.1 has unequivocally admitted the relationship of landlord and tenant between the plaintiff and defendant No.1. Therefore, the trial Court is correct in passing the decree of eviction. Further submitted that, in the said decree

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passed in O.S.No.2747/2012, it is held that both the plaintiff and defendant No.1 have encroached the property of plaintiff's sister as it is adjacent to the property of the plaintiff. Thus, there is violation of terms and conditions of lease deed by the defendant entitling the plaintiff to issue quit notice as per Section 106 of the TP Act and it is a valid termination of tenancy, which is rightly considered by the trial Court. Therefore, prays to dismiss the appeal.

11. Further submitted that Ex.P.1-lease deed is unregistered document. Therefore, as per Section 107 of TP Act, the period of lease is to be construed as month to month and therefore, there is valid termination as per Section 106 of TP Act, which is correctly considered by the trial Court. Further submitted that, in view of change in law i.e., amendment to Section 53-A of the TP Act, defendant No.1 is not entitled for protection as per Section 53-A of the TP Act. Therefore, on all respect, the judgment and decree passed by the trial Court is legal and do not suffer from perversity. Therefore, prays to dismiss the

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appeal by confirming the judgment and decree passed by the trial Court.

12. Upon hearing the argument from both sides, the following points arise for consideration:

i. Whether, under the facts and circumstances involved in the case, admittedly Ex.P-1 is an unregistered document of the period of 20 years can be construed tenancy month to month as such termination of tenancy is valid by issuing notice as per Section 106 of the Transfer of Property Act, thus, entitling the plaintiff by terminating tenancy and entitled possession of the property from the defendant?

ii. Whether, under the facts and circumstances involved in the case, admittedly Ex.P.1- lease deed is unregistered document, the period mentioned as 20 years in the lease deed can be construed as it protects the possession of plaintiff as per Section 53-A of the TP Act?

iii. Whether, the judgment and decree of evicting defendant No.1 requires interference by this Court?

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ANALYSIS:

13. Ex.P.1- lease deed dated 03.03.2002 admittedly is unregistered document. Defendant No.1 has not disputed the ownership of plaintiff over the suit schedule property. The defendant no.1 has admitted relationship of owner and tenant between the plaintiff and defendant No.1. It is the suit filed by the plaintiff for eviction against defendant No.1. Defendant No.1 in his written statement has unequivocally admitted that the plaintiff is the owner of the suit schedule property. It is also admitted that pursuant to the said execution of lease deed dated 03.03.2002, the defendant No.1 has occupied the suit schedule property as tenant and started his business under the name and style of Sri Lakshmi Motor Service Pvt., Ltd., on monthly rent of Rs.52,900/-. The trial Court has considered all these documentary and oral evidence and decreed the suit.

14. The plaintiff has asked defendant No.1 to quit from the suit schedule property on the ground that

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defendant No.1 had violated the terms and conditions of the lease deed as defendant No.1 has encroached the adjacent property, which is owned by plaintiff's sister resulting into filing a suit in O.S.No.2747/2012 and the said suit was decreed holding that the plaintiff and defendant No.1 have both encroached the property to the extent of 800 sq.ft. When admittedly Ex.P.1 is unregistered lease deed, therefore, as per Section 107 of TP Act, the lease is to be considered on month to month. As per Section 107 of TP Act, the lease of suit property from year to year for any term expiring one year can be made only by registered instrument. If the lease deed exceeding one year and is not registered instrument, then the lease is to be construed/reckoned for performance as deemed to be lease from month to month then by issuing notice as per Section 106 of TP Act, tenancy can be terminated.

15. Ex.P-1 lease deed stipulates that the period of lease is 20 years and is unregistered document, then

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defendant No.1 cannot take benefit of the protection of continuation for a period of 20 years. Protection of Section 53-A of TP Act is applicable only when the instrument is registered one. Admittedly, the lease deed was executed on 03.03.2002. Therefore, the benefit of Section 53-A of TP Act is not applicable. The period exceeding one year of lease period shall be compulsorily registered, therefore, as per Section 107 of TP Act, the lease period is construed as month to month tenancy terminable as per the issuance of notice as per Section 106 of TP Act. Therefore, the plaintiff has validly terminated by issuance notice under Section 106 of TP Act. There is also a codicile that in lease deed all the provisions of TP Act shall apply with the lease. Therefore, the trial Court is correct in decreeing the suit filed by the plaintiff therefore, there is no good ground made out to cause interference in the judgment and decree passed by the trial Court. Accordingly, I answer point No.1 in the Affirmative and point Nos.2 and 3 in the Negative. Therefore, the appeal is liable to be dismissed.

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16. Accordingly, I proceed to pass the following:

ORDER

i. The appeal is dismissed.

ii. The impugned judgment and decree dated 04.02.2020 passed in OS.No.8810/2012 on the file of III Addl. City Civil and Sessions Judge, Bengaluru, is hereby confirmed.

iii. No order as to costs.

iv. Registry is directed to transmit the TCR to the Court concerned forthwith.

Sd/-

JUDGE

PB

List No.: 1 Sl No.: 13