- 1 - HC-KAR NC: 2025:KHC:36455 RSA No. 811 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 811 OF 2022 (POS) BETWEEN: 1. N KUMAR DEAD BY HIS LRS G B PARVATHAMMA W/O LATE N KUMAR AGED ABOUT 65 YEARS 2. SOWMYA W/O DR MUNISHWAR AGED ABOUT 52 YEARS 3. S K NANJESH S/O LATE N KUMAR AGED ABOUT 41 YEARS 4. ANAND S K S/O LATE N KUMAR AGED ABOUT 32 YEARS ALL ARE R/O NANJUNDESHWARA NILAYA OLD POST OFFICE ROAD SHIVAMOGGA …APPELLANTS (BY SRI. P.N. HARISH, ADVOCATE) Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:36455 RSA No. 811 of 2022 AND: SMT. SUSHEELAMMA W/O LATE H R NANJUNDA SETTY AGED ABOUT 81 YEARS R/O NANJUNDESWARA NILAYA II CROSS, TILAK NAGAR SHIVAMOGGA - 577 201 GPA HOLDER H.R. SRINIVAS S/O LATE H.N. RANGASWAMY SETTY MAJOR IN AGE, R/O 4TH MAIN, BASAVANAGUDI, SHIVAMOGGA - 577 201 …RESPONDENT (BY SRI. B.S. VENKATANARAYANA, ADVOCATE FOR CAVEAT RESPONDENT) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 14.02.2022 PASSED IN RA.No.33/2019 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, SHIVAMOGGA, PARTLY ALLOWING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 25.01.2019 PASSED IN OS No.781/2013 ON THE FILE OF THE III ADDITIONALCIVIL JUDGE AND JMFC, SHIVAMOGGA. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:36455 RSA No. 811 of 2022 CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri.P.N.Harish, learned counsel for the appellants and Sri.B.S.Venkatanarayana, learned counsel for contesting respondent. 2. Appellants are the legal representatives of original defendant – N. Kumar who has suffered the decree of possession in O.S.No.781/2013 which was confirmed in RA No.33/2019 in respect of the following immovable property (hereinafter referred to as suit property): All that piece and parcel of immovable property i.e., non agricultural land with all structures put up over the converted land measuring about 100 x 100 feet (9 guntas) situated at Sy.No.41/2 of Thevarachatnahalli, Kasaba Hobli, Shivamogga Taluk and bounded by: East – Land in Sy.No.41/1 West – Land in Sy.No.41/1 North – Land in Sy.No.41/1 South – Honnalli Road - 4 - HC-KAR NC: 2025:KHC:36455 RSA No. 811 of 2022 3. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and dismissed the appeal of the defendant by considered judgment dated 14.02.2022. 4. Being further aggrieved by the same, legal representatives of the deceased defendant are before this Court in this appeal on following grounds and raising following substantial questions of law: The impugned judgments of the courts are highly erroneous, illegal and opposed to law, facts and probabilities of the case. The trial court has not given any proper and clear finding on issue No.5 and committed an error in holding that the notice issued terminating the tenancy is valid and proper. It is respectfully submitted that the boundaries mentioned in the legal notice are totally different than that of the one mentioned in the registered rent agreement. When there is no specific and clear demand for delivery of vacant possession and termination of tenancy with respect to the property leased, the - 5 - HC-KAR NC: 2025:KHC:36455 RSA No. 811 of 2022 courts have committed an error holding that the notice is not defective. Both the courts lost sight of the fact that when it is a term lease for longer duration, a minimum of six months' notice ought to have been issued before filing the suit. The trial court committed an error in holding that defect in mentioning the boundaries is only a typographical error. Both the courts committed an error in not noticing the fact that it is not the plaintiff who is the only legal heir left behind by the original land lord and suit is bad for non-joinder of necessary parties. The first appellate court though rightly set aside the claim of damages of Rs.2,27,400/- which has been granted by the trial court inspite of there being no such claim made by the plaintiff and having restricted the arrears of rent for Rs.43,200/- only, committed an error in modifying the decree with respect to payment of damages payable from the date of decree as against the judgment of the trial court ordering to pay from February 2019. It is respectfully submitted that plaintiff has not questioned the grant of damages from February 2019. Such being the case the first appellate court committed an error in modifying the same without - 6 - HC-KAR NC: 2025:KHC:36455 RSA No. 811 of 2022 there being any appeal or cross appeal by the plaintiff. The first appellate court has no jurisdiction to modify certain findings without the same being questioned by the aggrieved party. The trial court has committed an error in not framing proper issues and issue regarding jural relationship of landlord and tenant ought to have been framed and a clear finding on this issue ought to have been given. The defendant has taken a contention that M/s. Indian Oil Corporation is also necessary and proper party to the suit and the trial court committed an error in not framing the issue with regard to non- joinder of necessary parties and the appellate court committed an error in confirming the judgment of the trial court. The lease cannot be construed from month to month terminable by fifteen days notice and the courts have not given any clear finding on this issue. SUBSTANTIAL QUESTIONS OF LAW i. Whether the courts have committed an error in holding that the lease in question entered for a period of twenty years is terminable from month to month notice and a fifteen days' notice is sufficient? - 7 - HC-KAR NC: 2025:KHC:36455 RSA No. 811 of 2022 ii. Whether the courts are justified in holding that the notice issued for termination of lease is not defective even though admittedly the boundaries of the leased property is wrongly mentioned and there is no explanation for such mistake in the plaint? iii. Whether the courts are justified in holding that the plaintiff is entitled for delivery of possession without determining the jural relationship and without framing an issue in this regard even though the defendant pleaded the same in his written statement? iv. Whether the suit is bad for nonjoinder of necessary parties? v. Whether the trial court committed an error in not framing an issue with regard to nonjoinder of necessary parties? vi. Whether the first appellate court is justified in modifying the period of damages from February 2019 to from the date of suit even though the same was not questioned and challenged by the plaintiff by filing either appeal or cross appeal? 5. Learned counsel for the appellants reiterating the grounds urged in the appeal memorandum pursuant to - 8 - HC-KAR NC: 2025:KHC:36455 RSA No. 811 of 2022 the substantial questions of law raised in the appeal vehemently contended that both the Courts have not properly considered the defence of the defendant and wrongly decreed the suit for possession resulting in miscarriage of justice and sought for admitting the appeal for further consideration. 6. Learned counsel for the respondent supports the impugned judgment by contending that admittedly, the defendant is in possession of the suit property as a tenant and later on, tenancy became terminated by issuing necessary notice under Section 106 of the Transfer of Property Act which has been rightly appreciated by both the Courts and thus, sought for dismissal of the appeal. 7. Having heard the arguments of both sides, this Court perused the material on record meticulously. 8. On such perusal of the material on record, there is no dispute that the respondent is the owner of the suit property and original defendant was the tenant. Tenancy - 9 - HC-KAR NC: 2025:KHC:36455 RSA No. 811 of 2022 got terminated by issuing notice and thereafter, suit came to be filed. Absolutely there is no defence for the defendant either to contest or pursue the appeal. 9. However, taking note of the fact that defendant was running a petrol bunk and after his demise, his legal representatives are pursuing the business of the petrol bunk, this Court is of the considered opinion that appeal needs to be dismissed by granting time to vacate and handover the premises till 31.12.2025. 10. Accordingly, the following: ORDER i. Appeal is dismissed. ii. However, time to extended to vacate the premises till 31.12.2025 subject to payment of arrears of mesne profits and current mesne profits. iii. An affidavit shall be filed by the appellants in this regard undertaking to voluntarily vacate - 10 - HC-KAR NC: 2025:KHC:36455 RSA No. 811 of 2022 and handover the premises on or before 31.12.2025 and to pay arrears of mesne profits within a period of two weeks from today. Sd/- (V SRISHANANDA) JUDGE KAV List No.: 1 Sl No.: 51