- 1 - NC: 2025:KHC:12303 RSA No. 1241 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1241 OF 2016 (POS) BETWEEN: SRI JAGADISH, S/O LATE V. SWAMINATHA, AGED ABOUT 59 YEARS, R/AT 2ND MAIN, 3RD CROSS, 1ST DIVISION, KOTE, KOLAR TOWN - 503 101. …APPELLANT (BY SRI. UMESH B N.,ADVOCATE) AND: SMT JAYAMMA, W/O LATE MUNIYAPPA, AGED ABOUT 59 YEARS, R/AT DOOR NO.151, SS PURA MAIN ROAD, NEAR KARNATAKA BANK, TUMKUR - 572 101. …RESPONDENT (BY SRI. H S SATHISH KUMAR.,ADVOCATE) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 04.04.2016 PASSED IN RA.NO.185/2014 ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE, KOLAR ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 21.11.2013 PASSED IN OS.NO.522/2012 ON THE FILE OF THE II ADDL.CIVIL JUDGE AND JMFC., KOLAR. Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:12303 RSA No. 1241 of 2016 THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular second appeal is filed by the appellant, challenging the judgment and decree dated 04.04.2016, passed in R.A.No.185/2014 by the learned I Additional Senior Civil Judge, Kolar. 2. For convenience, parties are referred to based on their ranking before the trial Court. The appellant was the defendant and the respondent was the plaintiff. 3. The brief facts leading rise to the filing of this appeal are as follows: 4. The Plaintiff filed a suit against the defendant for the relief of delivery of possession of suit schedule property and damages at the rate of Rs.2,000/- per month for unauthorized occupation from 27.09.2009 till its delivery. It is the case of the plaintiff that the plaintiff's husband was the absolute owner of the suit schedule - 3 - NC: 2025:KHC:12303 RSA No. 1241 of 2016 property. After his death, she being a legal heir, have succeeded to the suit schedule property. The plaintiff's husband, during his lifetime let out suit schedule property in favour of the defendant under the unregistered lease deed dated 27.09.2007 for a period of 2 years and the lease period was expired, and the plaintiff approached the defendant with a request to vacate and hand over the vacant possession of the suit property, but the defendant did not vacate. The plaintiff issued a legal notice on 27.04.2012 to the defendant by terminating the lease. The said notice was duly served on the defendant, but the defendant gave a reply to the legal notice. Hence, a cause of action arises for the plaintiff to file the suit for recovery of possession and damages. Accordingly, prays to decree the suit. 5. The defendant filed a written statement admitting the ownership of the plaintiff, and it is contended that one Muniyappa i.e., the plaintiff's husband had mortgaged the suit schedule property in favour of the - 4 - NC: 2025:KHC:12303 RSA No. 1241 of 2016 defendant for a sum of Rs.1,00,000/- and executed a mortgage deed on 27.09.2007 and delivered the possession. The plaintiff's husband has to return the mortgage amount, after the expiry of 2 years. After receiving the said amount, the defendant has to hand over the vacant possession of the suit property to the said Muniyappa. The defendant admitted that the plaintiff issued a legal notice terminating the tenancy. It is contended that the defendant replied to the legal notice and denied the monthly rent of Rs.2,000/-. Hence, he prays to dismiss the suit. 6. The Trial Court, based on the above said pleadings, framed the following issues: "1. Whether the plaintiff proves that her husband late Muniyappa during his lifetime had demised the suit schedule premises in favour of the defendant under unregistered lease deed dated 27.9.2007 as contended in para 3 of the plaint? 2. Whether the plaintiff further proves that she has issued a notice dated 27.4.2012 against the defendant by terminating the tenancy? 3. Whether the plaintiff further proves that the defendant is liable to pay rent of Rs.2,000/- p.m., for his unauthorized occupation from 27.9.2009 till vacating and - 5 - NC: 2025:KHC:12303 RSA No. 1241 of 2016 handover the vacant possession of the suit schedule premises? 4. Whether the defendant proves that the plaintiff is not a legal heir of the deceased Muniyappa? 5. Whether the plaintiff is entitled to recover the possession of the suit schedule premises? 6. Whether the plaintiff is entitled to reliefs as sought for? 7. What order or decree?" 7. To prove the case of the plaintiff, the plaintiff examined herself as PW-1 and marked 8 documents as Exs.P1 to P8. On the other hand, the defendant examined himself as DW-1 but no documents were marked on his behalf. 8. The trial Court, after assessing the verbal and documentary evidence of the parties, answered issue Nos.1 to 6 in the negative and issue No.7 as per the final order. The suit of the plaintiff was dismissed vide judgment dated 21.11.2013. 9. The plaintiff, aggrieved by the judgment and decree passed in O.S.No.522/2012, preferred an appeal in R.A.No.185/2014 on the file of I Additional Senior Civil - 6 - NC: 2025:KHC:12303 RSA No. 1241 of 2016 Judge, Kolar. The First Appellate Court, after hearing the parties, has framed the following points for consideration: "1. Whether the plaintiff proves that she is the legal heir of the deceased Muniyappa the owner of suit schedule premises? 2. Whether the plaintiff proves that the suit premises is leased to the defendant on 27.09.2007 for consideration Rs.1,00,000/- for a period of two years? 3. Whether the lower Court erred in holding that the plaintiff has not proved the lease? 4. Whether the judgment and decree of the trial Court needs interference? 5. To what relief and decree the parties are entitled for?" 10. The First Appellate Court, on re-assessing the verbal and documentary evidence, answered point Nos.1 to 4 in the affirmative and point No.5 as per the final order. The appeal was allowed with cost, consequently the judgment and decree passed in O.S.No.522/2012 dated 21.11.2013 by the Trial Court was set aside. The suit of the plaintiff was decreed. Further, the First Appellate Court ordered the defendant to vacate and deliver the vacant possession of the suit property premises to the plaintiff within 3 months by receiving the lease amount of - 7 - NC: 2025:KHC:12303 RSA No. 1241 of 2016 Rs.1,00,000/- from the plaintiff. Further it is ordered the defendant to pay damages at the rate of Rs.2,000/- per month from 27.09.2009 till the delivery of possession of the suit premises to the plaintiff. 11. The defendant aggrieved by the portion of the judgment passed by the First Appellate Court regarding the grant of damages from 27.09.2009 till the delivery of possession of suit premises of the plaintiff has filed this RSA. 12. Heard the arguments of the learned counsel for the defendant. 13. Learned counsel for the defendant submits that the First Appellate Court committed an error in awarding damage from 27.09.2009. He submits that the plaintiff has terminated the tenancy by issuing notice. 14. The defendant is liable to pay damage after the termination of tenancy, but not from the date of execution of lease. Hence, on this ground, he prays to allow the appeal. - 8 - NC: 2025:KHC:12303 RSA No. 1241 of 2016 15. This court admitted the appeal on 14.12.2016, to consider the following substantial question of law : "Whether the First Appellate Court has committed any serious legal error as to fixing the damages at the rate of Rs.2,000/- without assigning any reasons?" 16. Perused the records. Reg: Substantial question of law: 17. There is no dispute regarding the relationship as lessor and lessee between the plaintiff and defendant. The defendant has taken the suit schedule premises on lease from the plaintiff's husband, on 27.09.2007 for a period of 2 years. In the meanwhile, the plaintiff's husband passed away. The plaintiff issued a legal notice on 27.04.2012 terminating the tenancy. Even after the termination of tenancy, the defendant continued in possession of the suit schedule property. The defendant is liable to pay the damages for the use and occupation of the suit schedule property unauthorizedly. Admittedly, the suit schedule property is situated in the heart of Kolar. The minimum rent fetched in the Kolar, - 9 - NC: 2025:KHC:12303 RSA No. 1241 of 2016 where the suit schedule property is situated, is Rs.2,000/-. The First Appellate Court was justified in assessing the damages at Rs.2,000/- per month. However, the First Appellate Court has committed an error in awarding damages from 27.09.2009. It ought to have been awarded the damages from the date of termination of tenancy. To this extent, the judgment and decree passed by the First Appellate Court required to be modified. The First Appellate Court has assigned the reasons for fixing the damages at a rate of Rs.2,000/- per month. 18. In view of the above discussion, the substantial question of law is partly answered in the affirmative. 19. Accordingly, I proceed to pass the following: ORDER i. The appeal is allowed in part. ii. The judgment and decree dated 04.04.2016 passed in R.A.No.185/2014 by - 10 - NC: 2025:KHC:12303 RSA No. 1241 of 2016 the learned I Additional Senior Civil Judge, Kolar, is modified. iii. The plaintiff is entitled to damages at a rate of Rs.2,000/- per month from 01.05.2012 till the delivery of possession of suit schedule property to the plaintiff. iv. Learned counsel for the defendant submits that the defendant had delivered the possession of the suit schedule property to the plaintiff on 27.07.2017 and the plaintiff has to refund the security deposit amount to the defendant. v. The plaintiff is directed to deduct the arrears of damages, if any out of the security deposit and refund the balance security deposit, if any, to the defendant. Sd/- (ASHOK S.KINAGI) JUDGE AMA List No.: 1 Sl No.: 6