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2017 DIGILAW 899 (KAR)

N. Ravindra Shetty v. Padma Srinivas

2017-06-06

K.S.MUDAGAL

body2017
JUDGMENT : 1. This defendant’s appeal arises out of the judgment and decree dated 9.1.2012 in O.S.No.1337/2002 passed by the XV Additional City Civil Judge, Bangalore. By the impugned judgment, the Trial Court has decreed the suit of the plaintiff for possession of the property and for Mesne Profits. 2. The subject matter of the suit is the ground and first floor building in property No.18/10-1 (old No.18 and 18/10) of 1st Main, H.G.H. Layout, Ganganagar, Bangalore. The respondent is the plaintiff and the appellant is the defendant before the Trial Court. For the purpose of convenience, the parties will be referred hereafter by their respective ranking before the Trial Court. 3. The case of the plaintiff in brief is as follows: That she entered into a registered lease agreement dated 11.9.1990 with the defendant in respect of the suit property. Seven shops situated in the ground floor were excluded from the lease agreement. Inadvertently, a mistake has occurred in the lease deed in mentioning the boundaries. The lease is for a period of 30 years and rent payable was Rs.3,000/- per month subject to periodical enhancement. The defendant had to obtain approved building plan and construct the building on demised premises in accordance with the terms of the same. The cellar portion of the property was reserved for car parking. The defendant put up the construction deviating from the approved building plan and thereby incurring the action from the Bangalore City Municipal Corporation. Further, in breach of the lease agreement, the defendant encroached upon the cellar portion and constructed two rooms in the cellar portion illegally. The defendant sub let the property to one Dr. Sridhar Venkatesh during 1994-1995. On Dr. Sridhar Venkatesh vacating the property, the defendant again let out the property to M/s Amalgamated Bean Coffee Trading Company Ltd. Thus, the defendant has violated the terms of the lease. Invoking the forfeiture clause of the lease agreement, plaintiff forfeited the lease and got issued notice dated 4.1.2002 terminating the tenancy and calling upon the defendant to vacate the premises. Despite the service of the notice, the defendant is obstinate. The current market rate of the rent in the locality is Rs.1,133/- per day. On termination of the lease, the defendant’s possession has become illegal and therefore, he is liable to pay the damages at the said rate. Despite the service of the notice, the defendant is obstinate. The current market rate of the rent in the locality is Rs.1,133/- per day. On termination of the lease, the defendant’s possession has become illegal and therefore, he is liable to pay the damages at the said rate. Instead of vacating the property, the plaintiff got filed O.S.No.11113/1993 before the City Civil Court, Bangalore, for permanent injunction. Thus the suit. 4. The defendant contested the suit by filing the written statement. His case in brief is as follows: The execution of the lease deed and the terms of the lease are admitted. But it is denied that there is mistake in mentioning the boundaries in the lease deed. It is denied that the cellar portion was let out. He acquired the property under the lease for the purpose of running a Multi Specialty Nursing Home, including the other specialized doctors of the town. By the time he took the property on lease, the plaintiff, under the sanctioned plan dated 1.10.1990 had put up the construction partially. Due to poor quality of construction, the structure put up by her collapsed. When he applied for construction of the property, it was revealed that separate plan is not required and plaintiff even issued no objection for construction as per the plan. He has developed the property investing Rs.30.00 Lakhs. The plaintiff started to harass him demanding the exorbitant rent against the terms of the lease deed. She even got filed W.P.No.24355/1993 through one B. Kencharase Gowda to obstruct the construction. The katha of the said property stood in his name. Despite that plaintiff got filed O.S. 4941/1997, 2037/1994, 10162/1992 and 1564/1995 and implicated him in the web of the litigations. Plaintiff herself with the aid of rowdy elements tried to demolish the staircase put up by him thereby to pull down the ground floor. Therefore, he is forced to file O.S.11113/1993 through his wife as he is out of India and court granted injunction. The construction of the building in deviation of the building plan, sub letting or in breach of the terms of the lease agreement are all denied. The plaintiff filed O.S. 10162/1994 against him for injunction. But there she did not set up the breach of the terms of the lease agreement and possession. Therefore, the present suit is barred. The construction of the building in deviation of the building plan, sub letting or in breach of the terms of the lease agreement are all denied. The plaintiff filed O.S. 10162/1994 against him for injunction. But there she did not set up the breach of the terms of the lease agreement and possession. Therefore, the present suit is barred. The valuation of the suit is improper and court fee paid is incorrect. The suit liable for dismissal. 5. On the basis of the above pleadings, the Trial Court framed the following issues: Issues 1. Whether Termination of Lease by the Plaintiff is in accordance with law? 2. Whether Plaintiff is entitled to Mesne Profits as claimed? 3. Whether the Plaintiff is entitled to Possession? 4. To what relief? Additional Issues: 5. Whether the suit is not properly valued and Court Fee paid is not sufficient? 6. Whether the Defendant proves averments made in para 19(A) of written statement? 7. Whether the suit claim cannot be granted on the principle of res-judicata? 6. The parties led the evidence in the matter. The plaintiff examined PWs 1 to 5 and got marked Exs.P1 to P34. The defendant got himself examined as DW1 and got marked Exs.D1 to D52. 7. The Trial Court, after hearing the parties, by the impugned judgment, decreed the suit for possession and ordered for separate enquiry in respect of Mesne profits holding that the breach of the terms of the lease agreement is proved and the plaintiff is entitled for re-possession with costs. The defendant challenges the said judgment in the above appeal. 8. Sri S.S. Nagananda, learned Senior counsel appearing for Sri Sriranga – advocate for the appellant in his arguments assails the sustainability of judgment of the trial Court on the following grounds: (1) What is let out under the lease deed – Ex.P.9 is only the land and not the super structure. Therefore, there cannot be any forfeiture of lease of the superstructure. Thus, the trial Court committed error in accepting termination of lease and granting decree for possession of the entire property including the superstructure. (2) Since the lease is for a term of 30 years, there cannot be any prematured termination of the lease. Therefore, there cannot be any forfeiture of lease of the superstructure. Thus, the trial Court committed error in accepting termination of lease and granting decree for possession of the entire property including the superstructure. (2) Since the lease is for a term of 30 years, there cannot be any prematured termination of the lease. (3) So far as the violation of the term of lease agreement for construction of the building contrary to the approved building plan and licence, the defendant challenged the order of the Municipal Corporation and KAT for demolition of the structure in writ petition and this Court on securing the commissioner’s report to ascertain whether there is deviation, has held that there is no deviation and quashed the orders. Therefore, the case that the defendant has constructed contrary to the approved plan and building licence fails. (4) The evidence on record shows that the defendant had not sublet the premises to Dr. Sridhar Venkatesh but he had only expanded his medical centre including Dr. Sridhar Venkatesh as one of the specialist working in the centre. But trial Court has failed to appreciate the evidence on the point. (5) Similarly the evidence adduced by the plaintiff in proof of the alleged sublease in favour of M/s Amalgamated Bean Coffee Trading Company Ltd. was totally insufficient to hold that there is subletting in favour of the said company. (6) The finding that the defendant has encroached on the cellar portion of the demised premises and constructed the cubicals is contrary to the findings in the earlier suits in O.S.No.10162/1994 for and O.S.No.11113/93 between the same parties. (7) The plaintiff filed O.S.No.10162/1994 the former suit for bare injunction, though the ground of breach of the terms of the lease agreement by subletting, encroachment and construction contrary to the building plan was available to her. Therefore suit is clearly barred by Order II Rule 2 C.P.C. (8) Since the subject matter of the lease was only the land and suit is for possession of the land along with the superstructure, the valuation of the suit and the Court fee paid on the plaint is incorrect and trial Court therefore, ought not to have granted the decree. 9. In support of his arguments, he seeks to rely on the following judgments: (1) Hope Plantations Ltd. Vs. Taluk Land Board, Peermade and Another, 1999 (5) SCC 590 . (2) Dr. 9. In support of his arguments, he seeks to rely on the following judgments: (1) Hope Plantations Ltd. Vs. Taluk Land Board, Peermade and Another, 1999 (5) SCC 590 . (2) Dr. K.A. Dhairyawan and Others Vs. J.R. Thakur and Others, AIR 1958 SC 789 (3) Bishan Das and Others Vs. State of Punjab and Others, 1962(2) SCR 69 : AIR 1961 SC 1570 (4) Coffee Board Vs. Ramesh Exports Private Limited, 2014(6) SCC 424 (5) Avinash Kumar Chauhan Vs. Vijay Krishna Mishra, 2009(2) SCC 532 (6) Gopal Saran Vs. Satyanarayana, 1989(3) SCC 56 (7) Chandra Bai Vs. Tukaram and Others, AIR 1977 Kar 170 10. As against that Sri Divakar, learned counsel for the plaintiff/respondent in his argument sought to support the impugned judgment on the following grounds: (1) the lease agreement Ex.P.9 itself provides for forfeiture of the lease in case of violation of the terms of the agreement and right to seek possession of the land along with the building. The plaintiff by the evidence adduced by her and by the admissions of the defendant himself has proved construction of the building in violation of the building plan, subletting and encroachment. Therefore, the termination of the lease is valid. (2) The defendant admitted that Dr. Sridhar Venkatesh was in occupation of the property for medical practice and failed to prove his case that he was working with him as a medical director. Therefore, sublease to him is proved. (3) Plaintiff adduced evidence to show that the defendant received Rs.4.00 lakhs as advance money and the defendant contended that he had received Rs.4.00 lakhs towards the Coffee Beans supplied by him to M/s Amalgamated Bean Coffee Trading Company Ltd.but failed to prove the said contention. Thus, the trial Court is justified in holding that the subletting is proved. (4) Despite the Court in O.S.No.11113/1993, the defendant’s own suit holding that plaintiff has retained 7 shops on the northern side of the property, the defendant claimed that except the recovery rent of those 7 shops, plaintiff has not retained any control over the same. On that ground also the termination of the lease is valid. (5) In Writ Petition No.35811/2017 (LB-BMP), this Court has not held that there is no violation of the approved plan. Moreover the defendant does not produce any additional evidence to show that subsequently this Court has held so. On that ground also the termination of the lease is valid. (5) In Writ Petition No.35811/2017 (LB-BMP), this Court has not held that there is no violation of the approved plan. Moreover the defendant does not produce any additional evidence to show that subsequently this Court has held so. Since no such evidence was available and the defendant himself admitted violation of the building plan, the trial Court is justified in holding that there is violation of the building plan and therefore, the termination of the lease on that ground is valid. (6) the evidence of PW2 clearly showed that defendant has constructed the cubicals in cellar portion and therefore, the plea of encroachment is proved. (7) Insofar as the contention regarding bar of Order II Rule 2 CPC or resjudicata, the grounds of the sublease and the order under Section 321 of the Karnataka Municipal Corporation Act arose subsequent to the filing of O.S.No.10162/1994 and they were not available in the former suit. (8) The suit is properly valued and court fee paid is sufficient and the defendant has not demonstrated which else provision of the Court Fees Act is applicable. (9) The Judgments relied upon by the appellant’s counsel are not applicable to the facts of the case. 11. Having regard to the above said rival contentions, the point that arises for consideration of this Court is: (1) Whether the impugned Judgment and decree for ejectment of the defendant and is sustainable? 12. Some of the undisputed facts of the case are as follows:- That plaintiff is the owner of immovable property bearing No.18/10-1 situated at 7th Cross, 1st Main, HCG Layout, Ganganagar, Bangalore. Under Ex.P.9, she let out the said premises to the defendant on 11.9.1990. Both admit the terms of the lease as enumerated in Ex.P.9. The term of the lease was 30 years from 11.9.1990. The rent payable was as follows: (i) For the First two years of the Lease period commencing from (11-9-1990) Eleventh September Nineteen hundred and Ninety. Re.1-00 per month Rupee one per month. (ii) For the next eight years of the lease period after the expiry of the first two years. Rs.3,000/- per month. Rupees three thousand per month. (iii) For the next ten year of the lease period. Rs.4,000/- per month. Rupees four thousand per month. (iv) For the next ten years Rs.5,000/- per month. Rupees Five thousand per month. (ii) For the next eight years of the lease period after the expiry of the first two years. Rs.3,000/- per month. Rupees three thousand per month. (iii) For the next ten year of the lease period. Rs.4,000/- per month. Rupees four thousand per month. (iv) For the next ten years Rs.5,000/- per month. Rupees Five thousand per month. The rent was payable before 10th of each following month. Clause 3(ii) of Ex.P.9 provided that the tenant shall construct Pakka RCC roofed building on the demised premises in accordance with the plan approved by the Corporation within two years. Clause 3(ii)(d) provided that the lessee shall not sublease the premises/building to anybody during his lifetime. Clause 3(ii)(f) provided that the lease is confined to the utilization of ground+2 floors only. It further reserved the right to the lessor to put up additional floor/floors over the two floors and lease that out. Clause 3(ii)(g) provided that if any term set forth in the lease deed is not adhered to, the lessor has the right to terminate the lease. Under Clause 3(ii)(h) the defendant admitted that the lessor (plaintiff) has right to put up shops facing the road on the northern side in the ground floor in the area measuring 87’.6” east to west x 15’ north to south at her own cost and he has no right over the said shops. The plaintiff issued notice as at Ex.P.1 dated 4.1.2002 terminating the lease on the ground that contrary to the lease agreement the defendant constructed the building in violation of the sanctioned plan and sublet the same to Dr. Sridhar Venkatesh and M/s. Amalgamated Bean Coffee Trading Company Ltd. The same is served on the defendant under the acknowledgement – Ex.P.2. Plaintiff filed O.S.No.10162/1994 for permanent injunction which came to be dismissed. The defendant and his wife filed O.S.No.11113/1993 against the plaintiff for permanent injunction. The said suit was partly decreed vide Ex.D.3 – the certified copy of the judgment on 11.1.1999. The plaintiffs in that suit were granted perpetual injunction in respect of the enjoyment of the cellar portion, the ground floor shops and the entire top floor and the suit in respect of 7 shops situated in northern portion of the suit property was dismissed on the ground that plaintiffs are not in possession of the same. That judgment attained finality. That judgment attained finality. Having regard to the aforesaid admitted facts, the rival contentions of the parties have to be considered on various aspects, 13. Reg. the encroachment of the cellar portion and area leased out: The plaintiff contends that the cellar portion of the premises was not let out to the defendant and that was meant for vehicle parking. She contends that the defendant has constructed cubicals encroaching upon the same. As against that the defendant contends that entire property is leased out to him including 7 shops situated on the northern side of the property and plaintiff has retained only the right of recovery of the rent of those 7 shops and nothing more than that. The defendant’s suit in O.S.No.11113/93 came to be partly decreed. The certified copy of the judgment in the said suit is Ex.D.3. A perusal of Ex.D.3 shows that similar contentions were taken in that suit also. The defendant/tenant who was the plaintiff in that suit contended he is in possession of the cellar portion and the 7 shops situated on the northern side of ground floor and first floor of the property. The plaintiff/landlady who was the defendant in that suit contended that the cellar portion, the northern 7 shops are in her possession and they are not let out. After the full pledged trial, the Court in that suit held that the cellar portion is also let out to the tenant and the land lady has retained possession of 7 shops in the northern side and she is in lawful possession of the same. Therefore, the Court partly decreed the suit granting perpetual injunction in favour of the tenant to the entire property except the 7 shops situated in the northern side. Despite that, the parties have been agitating again the same issue before this Court. Therefore, contentions of the plaintiff and defendant/tenant in respect of possession of the cellar portion and northern 7 shops respectively, are unsustainable. 14. Regarding Order 2 Rule 2 & Resjudicata: (i) The defendant contends that when plaintiff filed O.S.No.10162/1994 for permanent injunction against the defendant, he did not choose to terminate the lease on the ground of contravention of the building plan, subletting, encroachment etc. therefore, now she is barred from suing the defendant on the same ground or from terminating the lease. Regarding Order 2 Rule 2 & Resjudicata: (i) The defendant contends that when plaintiff filed O.S.No.10162/1994 for permanent injunction against the defendant, he did not choose to terminate the lease on the ground of contravention of the building plan, subletting, encroachment etc. therefore, now she is barred from suing the defendant on the same ground or from terminating the lease. As against that the plaintiff contends that when she filed O.S.No.10162/1994, the grounds now urged by her for eviction of the tenant were not available to her, therefore, the suit is not hit by Order II Rule 2 CPC or the principles of resjudicata. (ii) Order II Rules 2 and 3 reads as follows: “2. Suit to include the whole claim.-(1) Every suit Shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.” “(2) Relinquishment of part of claim.- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished.” “(3) Omission to sue for one of several reliefs.- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.” Therefore, it is clear that to invoke Order II Rules 2 and 3 CPC, the cause of action and relief claimed in the former and later suit shall be one and the same and the plaintiff should have omitted to claim such relief intentionally. The reading of Ex.D.6 – the copy of the plaint in O.S.No.10164/1994 shows that the plaintiff filed the said suit against the defendant for permanent injunction against interference by the defendant of her peaceful possession and enjoyment of the 7 shops situated in the northern portion of the present suit property. Her concern in that case was that the defendant is interfering with her possession and enjoyment of the said 7 shops situated on the northern portion of the suit property. Her concern in that case was that the defendant is interfering with her possession and enjoyment of the said 7 shops situated on the northern portion of the suit property. (iii) It is no doubt true that the she has said in paragraphs 5 to 7 of the plaint that the defendant has constructed the shops in the ground and first floor in deviation from the sanctioned plan. A Perusal of Ex.D.10 to D.17 – copies of the pleadings and the applications in Writ Petition No.10122/2003 & Writ Appeal No.5190/2003 show that the Corporation issued effective demolition order/endorsement on 21.04.1995 on the ground of contravention of the sanctioned plan. Therefore, it is clear that when the plaintiff filed O.S.No.10162/1994, the cause of action to terminate the tenancy on the ground of deviation from the approved plan was not available to her. (iv) So far as seeking ejectment on the ground of subletting, Ex.P. 34 – copy of the agreement between the defendant and Dr. Sridhar Venkatesh, Exs.P.30, 31 – the pleadings in O.S.No.1211/2000, Exs.P.32 and 33 – the depositions of the defendant and Dr. Sridhar Venkatesh in O.S.No.1211/2000 show that the defendant inducted Dr. Sridhar Venkatesh in the suit property on 05.07.1995. Similarly, the alleged lease in favour of M/s. Amalgamated Bean Coffee Trading Company Ltd. is on 10.06.2001. Therefore, even those grounds were not available to the plaintiff when she filed O.S.No.10162/1994. (v) The cause of action in the earlier suit O.S.No.10162/1994 and in the present suit are by no stretch of imagination one and the same and it cannot be said that the plaintiff intentionally relinquished the claim of ejectment in the earlier suit. Therefore, the trial Court is justified in rejecting the contention that the suit is barred by operation of Order II Rule 2 CPC or Principles of resjudicata. 15. Regarding valuation of the suit and payment of Court Fee: (i) The defendant contends that since the suit is for possession of the land as well as the building worth Rs.30 lakhs put up by him, the plaintiff has to value the suit and pay the court fee on the market value of the suit property. A reading of Ex.P.9 – the agreement of lease shows that the defendant has agreed to put up the construction on the demised site, part of which had a building. A reading of Ex.P.9 – the agreement of lease shows that the defendant has agreed to put up the construction on the demised site, part of which had a building. It further shows that if at all, there is any violation of the terms of the agreement, the plaintiff is entitled to terminate the lease and the defendant shall handover as and when possession, without damaging any part of the construction. That itself goes to show that the defendant has agreed to hand over the site as well as the superstructure thereon. Therefore, it cannot be said that the lease is only of the land and not of the superstructure and the defendant continues to be the owner of the superstructure, therefore, to seek possession he has to pay the court fee on the market value of the property. (ii) Section 41(2) of the Karnataka Court Fees and Suits Valuation Act states that in a suit for recovery of immovable property from the tenant, the fees shall be computed on the premium, if any, and on the rent payable for the year next before the date of presenting the plaint. This Court in Veerathappa Alias Papanna Vs. Nanjundasetty, ILR 1976 Kar. 1293 has held that in a suit for recovery of immovable property from a tenant the Court fee payable is on one year rent and the valuation for the purpose of jurisdiction is as per Section 50 (2) of the Act. (iii) In addition to that the defendant is not claiming title to the building constructed by him and he has not sought any such declaration in his earlier suit O.S.No.11113/1993. Even in that suit the Court has held that he is only a tenant of the superstructure. Therefore, there is no merit in the contention that the suit is improperly valued and the Court fee paid is insufficient. 16. Reg: Construction of the building in breach of the sanctioned building plan: (i) The plaintiff contended that the defendant has constructed the building in violation of the approved building plan, thereby contravened the terms of the lease entailing liability of termination of lease. Though in the written statement the defendant denied the same, in his cross examination he unequivocally admitted as follows: “It is true that as on today, I constructed the building in violation of approved plan”. The defendant himself claims that he is a renowned Doctor. Though in the written statement the defendant denied the same, in his cross examination he unequivocally admitted as follows: “It is true that as on today, I constructed the building in violation of approved plan”. The defendant himself claims that he is a renowned Doctor. Therefore, it cannot be said that the above said admission is made without understanding the implications of the same. The defendant does not dispute that the Municipal Authorities passed an order for demolition of the building constructed by him on the ground of violation of the terms of the building licence and approved plan. The said order of demolition was confirmed up to Karnataka Appellate Tribunal. (ii) Though Shri S.S. Nagananda learned Senior counsel argued that the commission issued by this Court in Writ Petition No.35807/2011 (LB-BMP) has submitted the report to the effect that there is no deviation from the building plan and this Court has accepted the same. The defendant does not take the trouble of producing the copy of the said report or the order in the said Writ Petition. Since this Court can take Judicial notice of the order in the said Writ Petition, the copy of the same is secured from the website of this Court for the perusal of the Court. The reading of the said Order shows that nowhere the Court held that there is no deviation from the approved building plan. As against that, it shows that the defendant pressed the prayer that the BBMP should consider his case either for allowing the compounding of the deviations and to regularize the construction etc. (iii) The relevant paragraphs of the said Order are as follows: “1. In the present Writ Petition filed by the petitioner, the only prayer pressed before this Court, at this stage, is that in view of the subsequent reports given by independent Architects including Ex.C2 dated 11.11.2014 and the earlier report dated 03.12.2012, the concerned authority of the BBMP namely the first respondent – the Commissioner of BBMP should consider the case of the petitioner for either allowing the compounding of the minor deviations as per these reports and to regularize the construction already raised by the lessee-petitioner or to pass appropriate orders after giving an opportunity of hearing to him. 3. 3. As far as the aforesaid prayer of the petitioner is concerned, the learned counsel for the BBMP fairly does not object to that the concerned Commissioner can consider the case of the petitioner afresh in accordance with law in view of such subsequently available evidence on record. 4. Accordingly, this writ petition is disposed of with a direction to the first respondent-Commissioner of BBMP to consider the case of the petitioner afresh in accordance with law after giving an opportunity of hearing to the petitioner and after considering the respective two reports given by the experts in this regard. The petitioner and the third respondent may appear before the first respondent-authority, in the first instance, on 03.10.2015 and it is expected that appropriate orders in this regard will be passed within a period of three months thereof.” (iv) The reading of the above paragraphs shows that nowhere this Court held that there is no deviation from the approved building plan. Merely because the defendant and BBMP proposed to compound the matter, that does not lead to the conclusion that there is no violation of building plan. That does not mitigate/erase the sweeping admission of the defendant that he has constructed in violation of the building plan. Therefore, the finding of the trial Court that the defendant has violated the terms of the lease agreement by constructing the building in violation of the approved building plan suffers no infirmity. 17. Reg. Subletting: (i) The plaintiff contends that the defendant sublet the suit property to one Dr. Sridhar Venkatesh and Amalgamated Coffee Beam Company Ltd. in violation of the terms and conditions of the lease agreement. The defendant admitted that Dr. Sridhar Venkatesh was in occupation of the premises, but contended that Dr. Sridhar Venkatesh was taken into his Medical Centre as a Medical Director in expansion of the Centre and that was not subletting. Therefore the question before the Court is, “Whether Dr. Sridhar Venkatesh was in occupation of the premises as a sub-tenant or as a member of the medical establishment of the defendant?” (ii) Section 105 of the T.P. Act defines the lease as follows: “105. Therefore the question before the Court is, “Whether Dr. Sridhar Venkatesh was in occupation of the premises as a sub-tenant or as a member of the medical establishment of the defendant?” (ii) Section 105 of the T.P. Act defines the lease as follows: “105. Lease defined.- A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money , as share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. Lessor, Lessee, premium and rent defined.-The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent.” (iii) The defendant admits that Ex.P.34 is the agreement between him and Dr. Shreedhar Venkatesh. He further admits that he filed O.S.No.1211/2000 against Dr. Shreedhar Venkatesh for recovery of money. He admits that Exs.P.30 to 33 are the copies of the plaint, written statement, depositions of the present defendant and Dr. Shreedhar Venkatesh respectively in the said suit. The reading of Ex.P.34 makes it clear that the defendant has parted with the first floor building of the suit property in favour of Dr. Shreedhar Venkatesh and placed him in charge of the said building exclusively. Under the agreement Dr. Shreedhar Venkatesh was at liberty to install necessary medical equipments, furnitures and fittings without reserving any right to the defendant over the same. It further shows that Dr. Shreedhar Venkatesh was solely made responsible for the patient’s care, operation, maintenance of staff, payment of their salaries and retain the service charges from the patients visiting the first floor building. (iv) Clause (vi) of the said agreement shows that Dr. Shreedhar Venkatesh was made to pay Rs.12,500/- per month from 1.6.1995 to 31.5.1997, Rs.13,750/- from 1.6.1997 to 31.5.1999 and Rs.15,125/- from 1.6.1999 till 31.5.2000. If at all, Dr. Shreedhar Venkatesh was taken into the Medical Centre of the defendant as a part of expansion of the same, it was for the defendant to pay him his service charges. As against that under Ex.P.34 it is agreed that Dr. Shreedhar Venkatesh himself pays to the defendant. If at all, Dr. Shreedhar Venkatesh was taken into the Medical Centre of the defendant as a part of expansion of the same, it was for the defendant to pay him his service charges. As against that under Ex.P.34 it is agreed that Dr. Shreedhar Venkatesh himself pays to the defendant. Ex.P.34 further shows that as security for the payment of the amount agreed, the defendant has collected 13 post dated cheques from Dr. Shreedhar Venkatesh. The agreement Ex.P.34 specifies the term of such occupation as 5 years. Therefore, it is clear that the defendant parted with the interest in the first floor of the building in favour of Dr. Shreedhar Venkatesh for a consideration. The said transaction completely fits in to the definition of Section 105 of the T.P. Act. (v) Ex.P.32, 33 show that the defendant filed O.S.1211/2000 against Dr. Shreedhar Venkatesh on the ground that the cheques issued by Dr. Shreedhar Venkatesh are not realized and sought recovery of the amount covered under the unrealized cheques. In Ex.P.2 his deposition in that suit, the present defendant admits as follows: “It is true that defendant has given 12 cheques of Rs.12,000/- each for a period of one year. The witness volunteers that another cheque was also issued by the defendant. That cheque pertains to difference of rent amounting to Rs.30,000/-. In Ex.P.1 according to Clause 7, defendant has got benefit of payment of Rs.2500/- which is the rent (C in original document) received at the end of each month”. (Emphasis supplied) (vi) In Ex.P.33 the deposition of Dr. Shreedhar Venkatesh he referred to the transaction as rent agreement and that is not disputed in his cross examination. All the above referred evidence clearly shows that the transaction between the defendant and Dr. Shreedhar Venkatesh was a sublease. It is not even the case of the defendant that he had taken permission/consent of the plaintiff for such transaction. Therefore, the trial Court is fully justified in holding that the defendant has sublet the premises to Dr. Shreedhar Venkatesh. (vii) To prove the allegation that the defendant sublet the portion of the building to M/s Amalgamated Bean Coffee Trading Company Ltd., the plaintiff examined PW.3 – Nishan Appanna. Therefore, the trial Court is fully justified in holding that the defendant has sublet the premises to Dr. Shreedhar Venkatesh. (vii) To prove the allegation that the defendant sublet the portion of the building to M/s Amalgamated Bean Coffee Trading Company Ltd., the plaintiff examined PW.3 – Nishan Appanna. He stated that he is the Assistant Manager – Legal in the said Company and the defendant let out a portion of the suit property in favour of the said Company under the lease agreement with effect from 10.06.2001 on monthly rent of Rs.40,000/-. He deposed that the defendant received Rs.4,00,000/- as advance . He also speaks regarding Ex.P.21 - the notice got issued by the plaintiff to the Company, Ex.P.22 - the reply of the Company to the same, Ex.P.23 - the draft agreement, Ex.P.24 - the receipt executed by the defendant acknowledging receipt of cheque for Rs.4,00,000/-. The plaintiff examined PWs 4 and 5 – the Managers of Oriental Bank and Canara Bank to prove the realization of cheque of Rs.4,00,000/- into the account of the defendant. (viii) The defendant though denied the competency of PW3 or his employment with M/s Amalgamated Bean Coffee Trading Company Ltd. and the subletting, admits the receipt of Rs.4,00,000/- from the said Company. He contends that he is a big coffee planter and he received that amount for having supplied the coffee beans to the company. Therefore, the burden shifted to him to prove that the payment of Rs.4,00,000/- was the consideration for supply of coffee beans. Except his self serving testimony in that regard which the plaintiff disputed, the defendant did not adduce any evidence to prove such contention. That goes to show that the defendant takes up such contention only for the sake of the defence. There is no reason for PW3 to depose against the defendant. It is not even elicited that PW3 is in anyway interested in the plaintiff and therefore, to help her he deposed falsely. (ix) The trial Court appreciated the evidences of PWs 3 to 5 and the documentary evidence – D.21 to 25 and came to the conclusion that subletting in favour of M/s Amalgamated Bean Coffee Trading Company Ltd. Is proved. Such conclusion does not suffer any infirmity. 18. Reg. (ix) The trial Court appreciated the evidences of PWs 3 to 5 and the documentary evidence – D.21 to 25 and came to the conclusion that subletting in favour of M/s Amalgamated Bean Coffee Trading Company Ltd. Is proved. Such conclusion does not suffer any infirmity. 18. Reg. Termination of lease: (i) As already pointed out clause-3(g) of the lease agreement – Ex.P.9 provided for termination of the lease in case of violation of any of the conditions of the agreement. Since the defendant violated the terms of the lease by constructing in violation of the building plan and subletting the property, the plaintiff has invoked the forfeiture clause and terminated the lease. The said termination is permissible under Section 111(g) of the T.P. Act. (ii) Sri S.S. Nagananda, learned Senior Counsel for Sri S. Sriranga, Advocate for appellants contend that the lease is for a period of 30 years and what was let out was only the site and there cannot be any termination of lease before 30 years and in respect of both the land and the building which the defendant constructed thereon. For the said proposition he tried to rely upon the judgment in Dr. K.A. Dhairyawan’s case referred to supra. (iii) The question in that case was whether the tenants in occupation of the demised premises covered under the statutory protection under the Bombay Rents, Hotel and Lodging House Rates Control Act can be evicted. Even in that case, the Supreme Court held that when the land is leased with a condition to construct building thereon and to let out the same to the tenants and recover the rents from the said tenants, still if the contract permits, the lessor can terminate the lease of the lessee. It was held that the lessor is entitled to recover the rents, entitled to a declaration that the building constructed on the land belongs to the lessor and entitled to recover rent from statutory tenants. Therefore, the said judgment is in fact helpful to the plaintiff and not the defendant. The other judgments relied upon by the counsel for the appellant are not applicable to the facts of this case. 19. The Judgment of the trial Court does not suffer any legal infirmity and call for interference. Therefore, the appeal is dismissed with costs throughout. Therefore, the said judgment is in fact helpful to the plaintiff and not the defendant. The other judgments relied upon by the counsel for the appellant are not applicable to the facts of this case. 19. The Judgment of the trial Court does not suffer any legal infirmity and call for interference. Therefore, the appeal is dismissed with costs throughout. The defendant is hereby directed to hand over the vacant possession of the suit property to the plaintiff within 30 days from the date of this Judgment.