Bangalore District Court
Smt.Chikkavenkatamma vs Smt.Jothi @ Jothamma @ Latha on 11 January, 2021
Before the VII Addl. Judge and ACMM,
Court of Small Causes at Bengaluru
(SCCH-3)
DATED THIS THE 11th DAY OF JANUARY 2021
PRESENT: SRI.SANTOSH SIDDAPPA PALLEDH
B.A., LL.B (Spl.)
VII Addl. Judge and ACMM,
Court of Small Causes, Bengaluru.
S.C. No.517/2019
Plaintiff : Smt.Chikkavenkatamma,
W/o late Ramachandrappa,
Aged about 85 years,
R/at No.74/1,
Byrasandra Dakhale, G.M. Palya,
New Thippasandra Post,
Bangalore - 560 075.
(By Sri.N.Chandrappa, Advocate)
V/s
Defendant : Smt.Jothi @ Jothamma @ Latha,
Husband name not known to the
plaintiff,
Aged about 46 years,
Residing at Sy. No.74/1,
Byrasandra Dhakle, G.M. Palya,
Behind B.E.M.L Factory Compound,
New Thippasandra Post,
Bangalore - 560 075.
(By Sri.Manjunatha.V, Advocate)
*********
(SCCH-3) 2 SC 517/19
JUDGMENT
This suit is brought for the relief of ejectment and for arrears of rent.
02. Brief facts of the case are as under:-
It is the case of the plaintiff that she is the absolute owner of the property bearing Sy. No.74/1, measuring 3 acres 5 guntas land, situated at Byrasandra Dakhale, G.M. Palya, New Thippasandra Post, Bengaluru. It is pleaded that the said property was granted to the husband of plaintiff by Special Deputy Commissioner under Inams Abolition Act. After the death of her husband, she became the absolute owner of the property. The plaintiff has executed General Power of Attorney in favour of one Byrappa for the said property and thereafter it was revoked. The said Byrappa had filed O.S. No.6676/1999 which was dismissed and the Appeal preferred in RFA No.512/2002 was also dismissed and Special Leave Petition before Hon'ble Supreme Court of India was also dismissed. Such being the case the Byrappa during subsistence of General Power of Attorney, has let out house premises constructed in Sy. No.74/1, measuring East to West 30 feet and North to South 22 feet which is the suit property in this case on a monthly rent of Rs.3,000-00. After the (SCCH-3) 3 SC 517/19 failure of litigation led by Byrappa, plaintiff demanded defendant to pay the rents to her. But defendant did not heed to her request and since two and half years there is no payment of rents. Plaintiff is an old lady, inspite of it the defendant has caused trouble and she is in due of arrears of rent. The defendant is squatting upon the suit property without paying rent and hence plaintiff issued legal notice on 25-10-2018 to vacate the premises and pay the rent and future rents. But the notice was un-served and defendant did not vacate the premises. Therefore, the present suit is brought for the above said relief.
03. In response to the notice issued, defendant appeared through MV Advocate and filed written statement. In the written statement which runs about 7 pages, the defendant has denied the jural relation of landlord and tenant and receipt of notice, termination of tenancy etc.,. It is pleaded that the said Byrappa sold the house property bearing Khatha No.484, (New No.822/484), situated at Garkumanthana Palya (G.M. Palya), K.R. Puram Hobli, Bengaluru South Taluk, measuring East to West 40 feet and North to South 60 feet being part of Sy. No.74/1, in favour of Smt.Achamma Mathew and C.C. Mathew for valuable consideration of Rs.50,000-00 under registered Sale Deed dt:18-06-1992. The defendant is residing as a (SCCH-3) 4 SC 517/19 licencee under Smt.Gracy Kurian who is the daughter of Smt.Achamma Mathew and plaintiff also know these facts and even then filed false suit and the suit is bad for non-joinder of necessary parties i.e., Gracy Kurian. The cause of action is imaginary, false, vexatious and hence sought to dismiss the suit against them.
04. Based on the aforesaid pleadings, the following points that arise for my consideration are as under:
01. Whether the plaintiff proves that defendant is a tenant under her for the suit property?
02. Whether the plaintiff proves the existence of suit property?
03. Whether the plaintiff is entitled for the relief of ejectment and arrears of rent as prayed?
04. What order or decree?
05. In order to prove the case, plaintiff gave evidence as P.W.1 and produced documents at Ex.P.1 to Ex.P.13. Defendant gave evidence as D.W.1 and produced documents at Ex.D.1 to Ex.D.3.
06. Heard the arguments from both side.
07. My answer to the above points are as under:
Point No.1 : In the Negative
Point No.2 : In the Negative
(SCCH-3) 5 SC 517/19
Point No.3 : In the Negative
Point No.4 : As per final order
for the following:
REASONS
08. Point Nos.1 and 2:- These points are taken up for the common discussion to avoid repetition of facts.
09. In this case the facts which are not disputed are that, the plaintiff is the owner of Sy. No.74/1 land, situated at G.M. Palya, and the house in which defendant resides is situated in Sy. No.74/1. The disputed facts are that defendant claims that plaintiff is not the owner of the property in which she is residing and there is no jural relation of landlord and tenant and the notice is not served to her. In this case the plaintiff has approached this Court for the relief of directing the defendant to vacate the suit premises and for arrears of rent. So, when the defendant disputes the jural relation and the property being different, it is the burden on the plaintiff who has approached the Court to prove it with cogent evidence. Sec.101 of Indian Evidence Act reads as follows:-
"Burden of proof - Whoever desires any Court to give Judgment as to any legal right or liability dependent on the (SCCH-3) 6 SC 517/19 existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person".
Therefore, in the background of this principle of law, I will discuss the evidence led by both sides.
10. Plaintiff has given evidence of herself as P.W.1 by reiterating the plaint averments vide affidavit filed in lieu of chief-examination. She has produced documents at Ex.P.1 to Ex.P.13 such as Representation given to Deputy Commissioner, Statement of Ramachandrappa, Order passed by Special Tahsildhar, Power of attorney, Revocation of Power of Attorney, Judgment and Decree passed in OS 6676/1999, Judgment and Decree passed in RFA 512/2002, Order passed in SLP 22694/2004, Legal notice, Postal cover (unserved notice), Copy of notice in unserved Postal cover and original RTC of Sy. No.74/1 of Byrasandra Dakhale Village.
11. In the cross-examination she admits that though in the plaint she has pleaded that she is the owner of 3 acres 5 guntas in Sy. No.74/1. But 15 guntas of land is sold to one Krishnappa. So, she becomes the owner of only 2 acres 27 guntas. So, there is suppression of this fact by the plaintiff. She admits that she has not conducted any survey to say that suit property do exists in the 2 acres 27 guntas or (SCCH-3) 7 SC 517/19 in the land of Krishnappa. There is admission that there were litigation staged between the Power of Attorney holder Byrappa and herself and it has reached conclusion. But she denies that General Power of Attorney was entrusted to Byrappa to develop the land, make sites and sell them, which is contrary to her version in the deposition given in SC 1136/2016 which is relied by defendant at Ex.D.2 wherein she admitted that plaintiff has made layouts and sold sites. Therefore, the contention of plaintiff that there was no any authority to Byrappa to sell the sites is falsified. Even in Ex.P.4 the Power of Attorney it is specifically termed as "To convey the schedule property sale/mortgage/lease etc., to receive the full consideration thereof, to execute documents of the above transfer and to complete the registration of the transaction". Therefore, the Ex.D.1 Sale deed relied by defendant is not cogently rebutted by plaintiff to say that there was no any sale made by the Byrappa.
12. The defendant has also given evidence of herself as D.W.1 and she has produced documents at Ex.D.1 to Ex.D.3 such as Sale deed dt:18-06-1992, Deposition of P.W.1, Judgment and Decree respectively in SC 1136/2016. In her cross-examination it is elicited that there is BEML Compound on the southern side, and thereafter G.M. Palya Main Road situated, the other three sides there are houses and road on the (SCCH-3) 8 SC 517/19 east. But the same is not tallying with the schedule boundaries given by the plaintiff which is extracted for the purpose of better understanding as under:-
East by : Road
West by : The house property of the plaintiff
tenanted to Venkatamma W/o
Marappa
North by : The house under the occupation
of tenant Nagaraj S/o
Munixhinappa
South by : The house property of the plaintiff
in the same Sy. No.
Though D.W.1 claimed that she is residing in the house as per the permission given by the Gracy Kurian, but she is not able to examine the owner. The suggestion made by plaintiffs' counsel is that "I do not know to suggest that the house in which now I am residing is not situated in Sy. No.74/1, but it is situated in Gramathana of G.M. Palya". It makes clear that the plaintiff is aware that the house in which defendant resides is not situated in Sy. No.74/1, but at gramathana, therefore the question of claim made by the plaintiff that the defendant is residing in the house situated at Sy. No.74/1 is falsified.
13. The plaintiffs' counsel argued stating that the ownership cannot be disputed and defendant being the tenant failed to pay the rent, notice sent, but refused deliberately, all goes to show that with malafide intention they are contesting the case. In (SCCH-3) 9 SC 517/19 Ex.D.1 survey number is not mentioned and hence it cannot be stated as house claimed by the plaintiff. The suit property and the schedule property in Ex.D.1 are totally different. The defendant admitted that she is residing in suit property, no documents produced that some other person is owner. The litigation between Byrappa and plaintiff reached conclusion at the Hon'ble Supreme Court of India and the Power of Attorney holder has lost the battle.
14. On the contrary, the counsel for defendant argued contenting that the jural relation denied, there is no clear explanation by the plaintiff as to how she become the owner of suit property, no documents produced in this regard and P.W.1 admits that some properties are sold, the Power of Attorney is revoked in the year 1999, but Ex.D.1 Sale deed is of the year 1992 and therefore the sale is not set aside. The earlier suits vide Ex.D.2 and Ex.D.3 are all dismissed which are of similar nature filed by the plaintiff. In reply to the arguments of defendant counsel, the plaintiff submitted the documents for whole property is produced and Power of Attorney is revoked and Hon'ble High Court of Karnataka has confirmed ownership, Sale deed is binding and the case has to be decreed. The counsel for defendant has relied (SCCH-3) 10 SC 517/19 Judgment reported in ILR 2007 KAR 371 in his support.
15. On analyzing the oral and documentary evidence and the points urged in the arguments, it can be clearly held that the plaintiff who had approached the Court must prove her case without depending on the weakness of the defendant. Once the burden of proof is discharged, then the onus shifts on the defendant to rebut it with cogent evidence. In this case this Court cannot go into the question of deciding the title to the property as it is a suit for ejectment, the limited question arises is , whether there is landlord and tenant relationship or not. As per Order 7 Rule 3 of CPC, it specifies that in case of immovable property, the boundaries shall be correctly mentioned and described. Though in this case the plaintiff pleaded in the schedule, boundaries, but failed to produce any piece of document to prove that such property exists within such boundaries. The pleading of the plaintiff is silent about when the schedule house is constructed, when defendant was inducted as tenant, as it is a case of no rental agreement between the parties. The other fact that the suggestion made by plaintiffs' counsel to the D.W.1 as observed above definitely goes to show that there is no clear proof that the defendant is the tenant under plaintiff. It is incumbent on the plaintiff (SCCH-3) 11 SC 517/19 to prove the relation and then the question of termination of tenancy would arise. Unfortunately, in this case though the plaintiff produced title documents to the Sy. No.74/1, but has not produced any iota of evidence to show the existence of schedule property as stated by her. No Katha extract, no Tax paid receipts, no Panchayath or Corporation certificates to say that such property exists are produced. Even no electrical connection details documents are produced. The property is situated at Bengaluru South Taluk and under such circumstances, no piece of document is unimaginable. Even the boundaries shown are not admitted by the defendant. The Sale deed produced by the defendant does not show it is existing in Sy. No.74/1. However, the litigation fought between Byrappa and plaintiff are not about the title of the plaintiff, but the suit was for specific performance and the same was dismissed. Under such circumstances, when the plaintiff has failed to prove the property with cogent documents, in my opinion the Judgment relied by defendant counsel in ILR 2007 KAR 371 between R.Abbaiah Reddy and others Vs Udaya Chandra is aptly applicable. Hence, in my opinion the plaintiff miserably failed to prove her case and the defendant cannot be considered as a tenant as claimed by her. Therefore, she is not entitled for the relief's sought for.
(SCCH-3) 12 SC 517/19Hence, I answered point Nos.1 and 2 in the Negative.
16. Point No.3:- As Point Nos.1 and 2 are answered in the negative, plaintiff is not entitled for any of the relief sought. Hence, I answered point No.3 in the Negative.
17. Point No.4:- In view of my findings on Point Nos.1 to 3 as above, I proceed to pass the following: -
ORDER Suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed by him, then corrected by me and pronounced in the open court this the 11th day of January 2021) (SANTOSH SIDDAPPA PALLEDH) VII Addl. Judge and ACMM, Bengaluru.
ANNEXURE List of the witnesses examined on behalf of plaintiff:
P.W.1 Chikkavenkatamma (SCCH-3) 13 SC 517/19 List of the documents exhibited on behalf of plaintiff:
Ex.P.1 Certified copy of the Representation given to Deputy Commissioner Ex.P.2 Certified copy of Statement of Ramachandrappa Ex.P.3 Certified copy of Order passed by Special Tahsildhar Ex.P.4 Certified copy of Power of attorney Ex.P.5 Certified copy of Revocation of Power of Attorney Ex.P.6 Certified copy of Judgment passed in OS 6676/1999 by XI Addl. City Civil Judge, Bengaluru Ex.P.7 Certified copy of Decree passed in OS 6676/1999 Ex.P.8 Certified copy of Judgment in RFA 512/2002 Ex.P.9 Certified copy of Decree in RFA 512/2002 Ex.P.10 Certified copy of Order passed in SLP 22694/2004 Ex.P.11 Copy of Legal notice dt:25-10-2008 Ex.P.12 Postal cover (unserved notice) Ex.P.12(a) Copy notice in unserved Postal cover Ex.P.13 Original RTC of Sy. No.74/1 of Byrasandra Dakhale Village List of the witnesses examined on behalf of defendant:
D.W.1 Jothi @ Jothamma @ Latha
List of the documents marked on behalf of
defendant:
Ex.D.1 Certified copy of Sale deed dt:18-06-1992
Ex.D.2 Certified copy of Deposition of P.W.1 in SC
1136/2016
(SCCH-3) 14 SC 517/19
Ex.D.3 Certified copy of Judgment and Decree in
SC 1136/2016
(SANTOSH SIDDAPPA PALLEDH)
VII Addl. Judge and ACMM,
Bengaluru.
SCHEDULE
All the piece and parcel of the House premises constructed in Sy. No.74/1, Byrasandra Dakhale, G.M. Palya, New Thippasandra Post, Bangalore - 560 075, the house premises measuring East to West : 30 ft., North to South : 22 ft., and bounded on the:
East by : Road
West by : The house property of the plaintiff
tenanted to Venkatamma W/o
Marappa
North by : The house under the occupation
of tenant Nagaraj S/o
Munixhinappa
South by : The house property of the plaintiff
in the same Sy. No.
(SANTOSH SIDDAPPA PALLEDH)
VII Addl. Judge and ACMM,
Bengaluru.