SHAH, J. - (1.) LEAVE granted.
(2.) THESE appeals are filed against the judgment and decree dated 27-10-1998 passed by the High Court of Karnataka at Bangalore in RSA Nos. 1319-22 of 1996. By the impugned judgment and decree, the High Court set aside the judgment and decree passed by the lower appellate Court and held that plaintiffs are entitled to recover the possession of leasehold property and decreed the suit accordingly. Before dealing with the contentions of both the parties, we would refer to the relevant facts in short. One Nellikai Vyasa Rao was the owner on mulgeni right of TS No. 234 corresponding to RS No. 359 of Attavar village of Mangalore city. Out of the said property, on 1-11-1903, a registered mulgeni lease was granted for a land admeasuring approximately 35 cents. (subsequently it was found as 40 cents) by Nellikai Vyasa Rao in favour of Ammanna Maistry. The relevant condition of the permanent lease deed - mulgeni chit dated 1-11-1903 executed by one Ammanna Maistry in favour of Nellikai Vyasa Rao, which requires consideration is as under :- Portion No.To 1.Amba Bai and S. Jythi 2.Chandrashekar} 3.Gangadhar} "In case I do not pay rent within time every year or if there is any short payment I am liable to pay the said sum with interest at 12% per annum from the date it is due till payment on the security of the building that may be built on the property and other improvements therein. In the event of my feeling that I do not require the said property, the said property along with the buildings and the improvements shall have to be handed over only to you on receiving the value of the buildings and improvements estimated by four Gentlement and I shall not have any right to alienate the property either the right of permanent tenancy or the building etc., by way of sale, mulgeni or in whatsoever manner to others. If I effect alienation contrary to this in any manner or if I allow the property to be attached and sold by any Court in connection with my personal debt, immediately, such alienation and also this permanent lease shall be liable to be totally cancelled and the property shall be reverted to your possession and enjoyment." Thereafter, Nellikai Vyasa Rao sold his mulgeni rights in respect of 1.20 acres of land in favour of P.F. Mathias which included 40 cents already leased out to Ammanna Maistry by registered sale deed dated 24-2-1914. On the death of lessee Ammanna Maistry, his mulgeni holding was partitioned among his legal heirs pursuant to the decree dated 31-3-1955 passed in partition suit No. O.S. 235 of 1950, as under :- JUDGEMENT_624_2_2002Html1.htm
(3.) IT is also admitted that by a gift deed dated 17-11-1960 Gangadhar gifted 11 cents to his sister Amba and sold remaining 11 cents to Sanjiva Sapalya by a sale deed dated 31-3-1960. Again on 3-10-1974 Amba transferred her holding to Sucharita. For the aforesaid transfers, plaintiffs did not invoke and enforce the forfeiture clause on the ground that alienations were within the members of the family of the deceased-lessee. Original Suit No. 786 of 1990 On 30-3-1981, Sucharita (1) by sale deed sold some portion of the land in favour of defendant Nos. 1 to 4; - (2) on the same day, under another sale deed, sold some other portion of the land in favour of defendant Nos. 5 and 6; and - (3) thereafter on 13-5-1982 sold remaining portion of the land in favour of defendant No. 7. On the alienation of entire mulgeni holding i.e. 11 cents, by Sucharita, the plaintiff's invoked the forfeiture clause on the ground of breach of the condition referred to in the parental lease and, therefore, filed Original Suit No. 25/83, which was subsequently numbered as Original Suit No. 786 of 1990 for possession of the mulgeni holding. Original Suit No. 929 of 1990;