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NC: 2023:KHC-D:10729
RFA No. 100060 of 2015

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

DATED THIS THE 15TH DAY OF SEPTEMBER, 2023

BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE

REGULAR FIRST APPEAL NO. 100060 OF 2015 (POS)

BETWEEN:

1. MR. ABDULMUTALIB
S/O ABDULGANI MADIWALE
AGE: 66 YEARS, OCC: NIL,
R/O: CLUB ROAD, BELAGAVI.

SINCE DECEASED BY HIS LRS.

1A. MRS. RUKSANA

W/O ABDULMUTALIB MADIWALE
AGE: 57 YEARS, OCC: HOUSEHOLD,
R/O: HOUSE NO.3936/61, CLUB ROAD,
BELAGAVI-590001.

1B. MRS. SAMEERA W/O SADIQ SHAIKH

AGE: 36 YEARS, OCC: HOUSEHOLD,
R/O: PLOT NO.4, SHEIKH SULEMAN PLOT,
Digitally
signed by
VIJAYALAXMI
YARNAL ROAD, NEAR BIROBA TEMPLE,
VIJAYALAXMI M BHAT
M BHAT Date:
2023.10.06
NIPPANI, DIST: BELAGAVI.
15:25:01
+0530

1C. MR. ARAFAT S/O ABDULMUTALIB MADIWALE

AGE: 34 YEARS, OCC: PRIVATE SERVICE,
R/O: HOUSE NO.3936/61,
CLUB ROAD, BELAGAVI-590001.

1D. MRS. CAROL JAI.B.STEPHEN

(MAIDEN NAME-MS TARANNUM
D/O ABDULMUTALIB MADIWALE)
AGE: 31 YEARS, OCC: HOUSEHOLD,
R/O: ‘SWEETON BUILDING’, PLOT NO.209,
HOUSE NO.4858, 2ND MAIN, 7TH CROSS,
SADASHIV NAGAR, BELAGAVI-590010.
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RFA No. 100060 of 2015

2. MRS. MUMTAZ W/O MOHAMMADNISAR MADIWALE

AGE: 68 YEARS, OCC: HOUSEHOLD WORK,
R/O: CLUB ROAD, BELAGAVI.

3. MR. ILYAS S/O MOHAMMADNISAR MADIWALE

AGE: 45 YEARS, OCC: BUSINESS,
R/O: CLUB ROAD, BELAGAVI.

4. MR. TAHIR S/O MOHAMMADNISAR MADIWALE

AGE: 40 YEARS, OCC: SERVICE,
R/O: CLUB ROAD, BELAGAVI.
…APPELLANTS
(BY SRI. PRASHANT F. GOUDAR, ADVOCATE)

AND:

1. MR. KALMUNDKAR S/O ANNIDEVRAJ BHANDARI

SINCE DECEASED BY LRS

1A. SMT. ANILA W/O VASANT BHANDARI

AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: KALI AMBRAI, OPP. B.M. HOSPITAL,
BELAGAVI.

1B. SRI. PARATHIKSHIT S/O VASANT BHANDARI

AGE: MAJOR, OCC: BUSINESS,
R/O: KALI AMBRAI, OPP. B.M. HOSPITAL,
BELAGAVI.

1C. SMT. USHA W/O DEVIKUMAR KAMBLI

AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: C/O: HOTEL DEVRAJ,
OPP. MAIN KSRTC OFFICE,
K.H. ROAD, BENGALURU.

1D. SHRI. SHANTHI KUMAR BALLAL

AGE: 62 YEARS, OCC: RETD. ARMY OFFICER,
R/O: 1743, BRAHMAPUTRA APTS.,
SECTOR 29, ARUN VIHAR NOIDA
UTTAR PRADESH – 2013.

1E. KUMARI. AABHA D/O SHANTHI KUMAR BALLAL

AGE: 25 YEARS, OCC: STUDENT,
R/O: 1743, BRAHMAPUTRA APTS,
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NC: 2023:KHC-D:10729
RFA No. 100060 of 2015

SECTOR 29, ARUN VIHAR NOIDA,

UTTAR PRADESH – 20130.

1F. KUMARI. ADRITA D/O SHANTHI KUMAR BALLAL

AGE: 21 YEARS, OCC: STUDENT,
R/O. 1743, BRAHMAPUTRA APTS,
SECTOR 29, ARUN VIHAR NOIDA
UTTAR PRADESH – 201301.

2. MR. NITIN S/O KALMUNDKAR BHANDARI

AGE: MAJOR, OCC: BUSINESS,
R/O: ‘SIDDHARTH’, #111,
DOORDARSHAN NAGAR,
RACE COURSE ROAD, BELAGAVI.

3. M/S. VIJAYKANT DAIRY AND FOOD PRODUCTS

THROUGH ITS M.D. MR. SHIVKANT SIDNAL,
LIG 159, OPP. CHANNAMMA GARDEN,
MAHANTESH NAGAR, BELAGAVI.

4. MR. MANJUNATH TIMMA PUJARI

AGE: MAJOR, OCC: BUSINESS,
R/O. NO. 22, MANJREKAR BUILDING,
NEHRU NAGAR, BELAGAVI.

5. BHARAT PETROLEUM CORPORATION LTD.,

HEAD OFFICE, BHARAT BHAVAN NO. 2, 4 AND 6,
CARRIMBHOY ROAD, BALLARD ESTATE,
MUMBAI – 400001.
…RESPONDENTS
(BY SRI. V M SHEELVANT, ADVOCATE FOR R2;
SRI. C.V.ANGADI, ADVOCATE FOR R5;
R1(A), R1(B), R1(C), R1(D), R1(E), R1(F)-NOTICE SERVED;
R3 AND R4-NOTICE SERVED)

THIS RFA IS FILED U/S.96 OF CPC., AGAINST THE

JUDGMENT & DECREE DATED:30.01.2015, PASSED IN
OS.NO.3/2012, ON THE FILE OF THE II ADDITIONAL SENIOR
CIVIL JUDGE & CJM, BELAGAVI, DISMISSING THE SUIT FILED
FOR POSSESSION & MESNE PROFIT.

THIS APPEAL, COMING ON FOR FURTHER DICTATION THIS

DAY, THE COURT DELIVERED THE FOLLOWING:
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RFA No. 100060 of 2015

JUDGMENT

1. This appeal is by the plaintiffs in O.S.No.3/2012 on

the file of the II Additional Senior Civil Judge,

Belagavi.

2. The suit is filed for eviction of the tenant. The

plaintiffs claim that the property bearing CTS

No.3935/62 of Belagavi Town measuring 1952.96

sq.ft and also the portion of the property bearing

No.3935/52 measuring 3772.87 sq.ft, in all the

properties measuring 5725.83 sq.ft. (hereinafter

referred to as suit property,) were leased to

defendant No.1 under the lease deed dated

01.06.1966. The lease tenure was 45 years. The

suit is filed in the year 2012, on the premise that the

tenure of the lease has come to an end. The

plaintiffs claim that the property bearing CTS

no.3935/52 is renumbered as CTS No. 3935/61 by

the time suit was filed.

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RFA No. 100060 of 2015

3. The plaintiffs had issued a notice terminating the

lease and demanded the possession. Since the

defendants did not oblige to the demand made in the

notice, the suit is filed.

4. The defendant No.1, the original lessee died during

the pendency of the suit. His legal representatives

contested the suit. Defendant No. 2 is the son of

original tenant. Defendants No.3 to 5 are said to be

the sub-tenants.

5. The tenant admitted the lease in respect of the

property bearing CTS No.3935/62 measuring

1952.96 sq.ft and the property bearing CTS

No.3935/52. However, denied the lease in respect of

CTS No. 3935/61. The defendants also disputed the

plaintiffs’ cliam that the property bearing CTS

No.3935/52 is converted to 3935/61.

6. The trial Court concluded that the plaintiffs have not

proved the description of the suit property, and that

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RFA No. 100060 of 2015

the notice issued by the plaintiffs terminating the

tenancy is not in conformity with the requirement of

Section 106 of the Transfer of Property Act, 1882

(hereafter referred to as ‘the T.P. Act’, for brevity).

The trial Court also held that the plaintiffs are not the

exclusive owners of the suit property.

7. Aggrieved by the dismissal of the suit, the plaintiffs

are in appeal.

8. Sri. Prashant F. Goudar, learned counsel appearing

for the appellants would submit that;

8.1. The suit property originally belonged to

Abdulgani Saddroddin Madiwale and he died in

the year 1980. One of the daughters of

Abdulgani Saddroddin Madiwale, namely Tahira

filed a suit for partition and separate possession

in respect of the properties left behind by

Abdulgani Saddroddin Madiwale and the said

suit in O.S.No.362/1987 is decreed.

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RFA No. 100060 of 2015

8.2. Final decree proceeding in FDP No.14/2004

ended in a compromise and in the said

compromise dated 14.02.2011, the suit

schedule property is allotted to the share of the

present plaintiffs.

8.3. The trial Court erred in holding that the

plaintiffs have not proved the description of the

property though the defendants admitted the

lease.

8.4. Since the tenure of the lease had come to an

end, there was no need to issue any notice.

The trial Court could not have raised an issue

relating to the validity of the notice terminating

the lease.

8.5. The identity of the suit property, which is

known as Hotel Milan in Belagavi is proved and

the tenants, who occupied the suit property

based on the lease, constructed the building on

it, and in the property tax returns filed before

the Municipal Corporation, the tenants have

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RFA No. 100060 of 2015

claimed that Milan Hotel building is situated in

the property bearing CTS No.3935/61 and

3936/62, the properties, described as the suit

property in the plaint.

9. Sri. Sheelvant, the learned counsel submits that the

lease was executed in respect of the properties

bearing CTS No.3935/62 and a portion of the

property bearing CTS No.3935/52. The property

bearing CTS No.3935/61 was not the subject matter

of lease at all and there cannot be a suit for eviction

in respect of the property bearing CTS No.3935/61.

10. Sri. Sheelvant would also submit that the plaintiffs

are not the owners of the properties described in the

plaint. The property bearing 3935/52 is never

renumbered as 3935/61 as claimed by plaintiffs. It

is also his contention that the property bearing

No.3935/52 is the property which is kept joint among

the legal representatives of the original land lord.

Thus, the suit filed by the present plaintiffs without

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RFA No. 100060 of 2015

impleading remaining legal representatives of the

original landlord is not maintainable.

11. The defendants also contend that the property

bearing No.3935/61 referred to in the plaint is

admittedly in the possession of the plaintiffs, as

such, the suit for eviction in respect of CTS

No.3935/61 is not maintainable.

12. The following points arise for consideration:

i. Whether the notice under Section 106 of

the Transfer of Property Act is necessary
to file a suit for eviction in case the
tenure of the lease has come to an end?

ii. Whether the plaintiffs establish that they

have the title over the property to seek
eviction of tenant i.e, 1st defendant?

iii. Whether the trial Court is justified in

holding that the description of the suit
property is not proved?
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RFA No. 100060 of 2015

13. Admittedly, the tenure of the lease has come to an

end after the expiry of 45 years from 01.06.1966.

14. The question is whether the notice under Section 106

of the T.P. Act is required, and if required, whether it

should be a 15 days’ notice or 6 months’ notice.

15. Section 106 of the Transfer of Property Act, 1882

reads as under:

“106. Duration of certain leases in absence of

written contract or local usage.—

(1) In the absence of a contract or local law or

usage to the contrary, a lease of immovable
property for agricultural or manufacturing
purposes shall be deemed to be a lease from
year to year, terminable, on the part of either
lessor or lessee, by six months' notice; and a
lease of immovable property for any other
purpose shall be deemed to be a lease from
month to month, terminable, on the part of
either lessor or lessee, by fifteen days' notice.

(2) Notwithstanding anything contained in any

other law for the time being in force, the
period mentioned in sub-section (1) shall
commence from the date of receipt of notice.
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RFA No. 100060 of 2015

(3) A notice under sub-section (1) 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 of the period mentioned in that sub-
section.

(4) Every notice under sub-section (1) must be in

writing, signed by or on behalf of the person
giving it, and either be sent by post to the
party who is intended to be bound by it or be
tendered or delivered personally to such
party, or to one of his family or servants at
his residence, or (if such tender or delivery is
not practicable) affixed to a conspicuous part
of the property.]”

16. On reading of Section 106 of the T.P. Act, it is

evident if the terms of the lease deed, or usage or

local law, do not specify the mode of termination of

lease, then,

(i) a lease of an immovable property for

agricultural or manufacturing purposes shall

be deemed to be a lease from year to year,

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RFA No. 100060 of 2015

terminable on the part of either lessor or

lessee by, six months’ notice;

(ii) a lease of an immovable property for any

other purpose shall be deemed to be a lease

from month to month, terminable, either on

the part of the lessor or lessee, by fifteen

days’ notice.

17. Admittedly the property leased is used to run a hotel

business. Hotel business cannot be treated as

manufacturing business. Thus the lease is terminable

by 15 days notice.

18. At this juncture it is also necessary to refer to

Section 111(a) of Transfer of Property Act, 1882,

which reads as under:

“111. Determination of lease.—A lease of

immoveable property determines—

(a) by efflux of the time limited thereby”

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RFA No. 100060 of 2015

19. As per Section 111(a) of the T.P. Act, the lease of

immovable property determines, by efflux of time

limited thereby. Thus, the lease comes to an end

after expiry of the tenure fixed under the lease

agreement. Admittedly in this case, the 45 years

tenure fixed under the lease, came to an end after

31.12.2011. Hence there is no subsisting lease in

favour of the tenants after 31.12.2011.

20. This being the position, there was no need for the

plaintiffs to issue notice under Section 106 of T.P.Act

to determine the lease, because the lease did not

subsist for determination. It had already come to an

end by efflux of time fixed under the lease deed.

Thus, the finding that notice issued under Section

106 of the Transfer of Property Act is invalid is not

tenable.

21. Assuming that the notice to terminate the lease is

required even after the expiry of tenure of the lease,

then also the 15 days’ notice issued in this case is a

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RFA No. 100060 of 2015

valid notice as the lease is neither for agricultural

activity nor for manufacturing activity.

22. The next question is relating to the title of the

plaintiffs. The contention relating to ownership of the

landlord is not available to the tenants. Admittedly

the plaintiffs’ father was the owner. After his demise,

the plaintiffs along with other heirs inherited the

property. There is no dispute that CTS No.3935/62 is

allotted to the share of the plaintiffs in FDP

No.14/2004, filed pursuant to the suit for partition

filed by the plaintiffs’ sister.

23. The plaintiffs claim that the Hotel Milan is allotted

their share in the Final decree proceeding. This fact

is also forthcoming from the decree passed in Final

Decree proceeding. Assuming that there is any

dispute over the ownership of the property bearing

CTS No.3935/62 and CTS No.3935/61 (CTS

No.3935/52 and its sub-divisions) or Hotel Milan

among the plaintiffs and other members of the

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RFA No. 100060 of 2015

family, same cannot be an excuse for the tenant

whose tenure as a lessee has come to an end, to

contend that he will not vacate the property. The

obligation of the tenant gets discharged once the

tenant hands over the possession of the property to

the plaintiffs in terms of the decree passed by this

Court. On considering the terms of the final decree

this Court is of the view that Hotel Milan is allotted to

the share of the appellants.

24. Next question is relating to identity of the suit

property.

25. The description of the leased property in the lease

deed is as under:

“The property C.T.S. Number 3935/52 AND

3935/62 at Vengurla Road, Belgaum city,
Taluka and District: Belgaum, is of the absolute
ownership, possession and management of
Sl.No.1 of us. Permission No. P W D 2500
dated: 17 March 1966, from the Municipal
Office, Belgaum is granted for construction of a
building and leaving open site to traverse to
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RFA No. 100060 of 2015

the North and as per the permission and the

map the measurement of the site is EAST-
WEST LENGTH AT THE SOUTH:84’+18-6”
AND AT THE NORTH: Feet 75’-3”+30’ feet,
SOUTH-NORTH WIDTH AT THE EAST:
42’+11’-3” and AT THE WEST: feet 41’+16’,
within these boundaries: EAST-Burma Shell
Petrol Pump at C.T.S. Number 3935/63,
WEST-Property out of No.3935/52, SOUTH-
Property C.T.S. Number 3935/69 and 70
belonging to Oulkar, NORHT: Open site and
ahead of it C.T.S. Number 3935/61 and the
Belgaum-Vengurla Road.”

26. The tenants admit that the CTS No.3935/62 is

leased. Hence there is no dispute in this regard. The

dispute is relating to CTS No.3935/61. The plaintiffs

claim that at the time of lease, the property was CTS

No.3935/52 which is described in the lease deed and

now it is renumbered as CTS No.3935/61.

Renumbering is disputed by the tenants. The tenants

contend that still it is CTS No.3935/52. Assuming

that it is still CTS No.3935/52 the fact remains that

the lease has come to an end. Hence the tenant has

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RFA No. 100060 of 2015

to vacate the premises bearing CTS No.3935/62 and

CTS No. 3935/52 assuming that CTS No. 3935/52 is

not renumbered.

27. It is relevant to note that the length and width of the

suit property i.e. the dimension of the property

leased is also provided under the lease deed.

Admittedly lessee has taken possession of the leased

property and has put up structure named as Hotel

Milan, in the leased property and is running a hotel

business in the said property. This being the position,

CTS number of the property is of hardly any

consequence. The structure is clearly identified by

the parties. Whether it is CTS No.3935/52 or

No.3935/61 is of little consequence in a suit for

eviction where the tenant does not claim that he is

having any right over either of the CTS numbers

namely CTS No.3935/52 or CTS No.3935/61 in any

capacity.
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RFA No. 100060 of 2015

28. The boundaries of the properties adjacent to the

leased property are also provided in the lease deed.

The east, north and southern boundaries are distinct

survey numbers not belonging to the appellants and

respondents. The western boundary is remaining

portion of CTS No.3935/52. If it is renumbered as

CTS No.3935/61 then western boundary is the

remaining portion of CTS No.3935/61. It is also

relevant to note that the defendants/tenants have

filed a declaration relating to self-assessment of the

tax before the Municipal Corporation which is marked

at Ex.D.54. In Ex.D.54 the tenant has described the

property as ‘Milan hotel’ and the property number is

shown as one built in CTS No.3935/61 and

No.3935/62 on the Club Road, Belagavi. It is

tenant’s own declaration before the Municipal

Corporation while paying the property tax to the

property. In any case the tenant is not having any

right either over CTS No.3935/52 or CTS No.

3935/61.
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RFA No. 100060 of 2015

29. There is no dispute over the fact that the property

bearing CTS No.3935/62 is leased and the same is

allotted to the share of the plaintiffs in the final

decree proceeding and in the said property, Hotel

Milan building is constructed by the tenant. From the

evidence placed on record it is apparent that the

building is built in both the CTS numbers leased. The

tenant is raising a technical dispute that the change

of CTS No.3935/52 to CTS No.3935/61 is not

established. Assuming that it is not established then

also the suit cannot be dismissed as the tenure in

respect of CTS No. 3935/52 and 3935/62 has come

to an end and the tenant cannot seek to stay in the

said property.

30. This being the position this Court is of the view that

there are sufficient materials to identify the property

leased. In addition, the boundaries on all the four

sides of the properties leased are also clearly

identifiable. Assuming that the boundary on one side

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RFA No. 100060 of 2015

namely western side is not identifiable, because of

confusion in the CTS number (CTS No.3935/52 or

CTS No.3935/61) then also the property can be

identified as boundaries on other three sides are

identifiable. Hence, whether there is a change in CTS

number No.3935/52 to CTS No.3935/61 or not, the

appellants are entitled to possession of the property

from the tenants and same shall be delivered by the

tenant.

31. The lease deed dated 01.06.1966 is admitted. Hence

the extent of the land and building built on it, in

occupation of defendants, is to be handed over to the

plaintiffs. As there is no dispute that the Hotel Milan

is constructed in the leased premises, and as the

lease has come to an end, the tenant shall handover

the possession of the said building without raising

any dispute on the CTS number of the property.

32. In case the Court finds any difficulty in executing the

delivery warrant in respect of vacant space in CTS

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RFA No. 100060 of 2015

No.3935/62 and CTS No.3935/61 or CTS No.

3935/52 or its subdivisions, the executing Court may

take the assistance of the surveyor to measure the

leased property and to identify the land.

33. It is made clear that there is no need to carry out

any survey while executing the decree for eviction of

Hotel Milan as the said building is admittedly built on

the leased property and the tenant or his legal

representatives or subtenants are not the owners of

any adjoining property and the tenants are bound to

vacate the said building without insisting for any

survey.

34. It is also relevant to note that the lease has come to

an end on 31.05.2011. The plaintiffs have claimed

damages from the said date till the date of delivery

of possession. The trial Court dismissed the suit and

consequently, held that the plaintiffs are not entitled

to the mesne profit. Since, this Court has set-aside

the decree of the trial Court and held that the

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RFA No. 100060 of 2015

plaintiffs are entitled to the possession of the suit

property from the defendants, the plaintiffs are also

entitled to damages/mesne profits. This Court is of

the view that there has to be a separate enquiry

relating to the mesne profits payable, as the

evidence led is not sufficient to determine the

damages/mense profits. The damages/ mense profits

shall be worked out in a separate proceeding under

Order XX Rule 12 of the Code of Civil Procedure

pursuant to this decree. However the appellants are

entitled to execute the decree for possession without

waiting for final outcome of enquiry of

damages/mense profits.

35. For the aforementioned reasons, this Court is of the

view that the judgment and decree passed by the

trial Court have to be set aside and accordingly set

aside.

36. Hence, the following:

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RFA No. 100060 of 2015

ORDER

i. Appeal is allowed.

ii. Judgment and decree dated 30.01.2015

passed in O.S.No.3/2012 on the file of

the II Additional Senior Civil Judge,

Belagavi are set aside and consequently

suit of the plaintiff is decreed.

iii. The defendants are directed to handover

the possession of the suit schedule

property to the plaintiffs within six

months from the date of this decree.

iv. The sub-tenants are also bound to

handover the possession to the plaintiffs.

v. Till the sub tenants handover the

possession they shall pay the rent

payable in respect of portion occupied by

them to the plaintiffs, instead of tenants

and same shall be valid discharge of their

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RFA No. 100060 of 2015

obligation to pay the agreed rent to the

tenant.

vi. The plaintiffs are also entitled to initiate

separate proceeding under Order XX Rule

12(2) of the Code of Civil Procedure to

ascertain damages/mense profits from

the 31.05.2011 till the date of delivery of

possession.

vii. No order as to cost.

Sd/-
JUDGE

gab – upto para 11

SH – para 12 to end
List No.: 1 Sl No.: 28
..