Bangalore District Court
Smt.Chinnamma Alias vs Shri.Ravi on 10 April, 2015
C.R.P. 67] Government of Karnataka
Form No. 9
TITLE SHEET FOR JUDGEMENTS IN SUITS
(Civil)
Title Sheet
for IN THE COURT OF THE SMALL CAUSES AT BANGALORE
Judgment in
Suits PRESENT: Basavaraj Chengti., B.Com.,LL.B.,(spl)
(R.P.91) XVI ADDL. JUDGE,
Court of Small Causes,
BANGALORE.
Dated this the 10th day of April 2015.
S.C.No.734/2014
Plaintiff: Smt.Chinnamma alias
Chennamma,
W/o late. Anjinappa,
Aged about 86 years,
R/at No.2,
15th cross, 4th main,
Sampangiramanagara,
Bangalore-560 027.
(By pleader Sri MSS)
Vs.
Defendants : 1. Shri.Ravi,
S/o Lakshmaiah,
Aged about 45 years,
2. Smt.Nirmala,
W/o Ravi,
Aged about 40 years,
R/at No.2,
15th cross, 4th main,
Sampangiramanagar,
Bangalore-560 027.
( Defendants-By
pleader Sri ND)
SCCH-14 2 SC.No.734/2014
Date of Institution of the suit : 20.06.2014
Nature of the suit(Suit on
Pronote, suit for declaration and
Possession, suit for injunction, etc.,) : ejectment
Date of the commencement of recording
of the evidence : 23.10.2014
Date on which the judgment was : 10.04.2015
Pronounced
Total duration Year/s Month/s Days
00 09 21
Additional Judge.
Note: The names and descriptions of all the plaintiff's and
defendants as stated in the plants should be mentioned.
SCCH-14 3 SC.No.734/2014
JUDGEMENT
This is a suit for ejectment, arrears of rent and for mesne profits.
2. Brief averments of the plaint are as under:
The plaintiff is the absolute owner of the commercial A.C.Sheet roofed premises bearing New Municipal No.2 situated at 4th cross, 15th main road, S.R.Nagar, Bangalore-27 measuring to an extent of East to West 12 feet and North to South 10 feet out of North to South 60 feet, which is hereinafter referred to as the schedule premises. The plaintiff has purchased the schedule property from one Smt.Gowramma and her husband, through registered sale deed dt.08.05.1957. She has executed a Gift deed on 25.04.2012 to an extent of 12' X 60' out of schedule property in favour of her son Sri.Rajgopal and remaining extent of 12' X10' was in her custody. She was running a vegetable shop in the said premises from 7-8 years, but due to her old age, she has closed the said shop. The defendants are husband and wife and the defendant no.2 is the grand daughter of the plaintiff. The defendants have approached the plaintiff and sought for lease of the schedule premises for running a vegetable shop. Due to relationship between them, the plaintiff has leased the schedule premises in favour of the defendants without any advance and without written rental agreement on a monthly rent of Rs.500/- from 15.01.2012 for a period of 10-11 months. The defendants have been paying the monthly rent of Rs.500/- to the plaintiff, but thereafter, the defendants have become chronic defaulters in SCCH-14 4 SC.No.734/2014 payment of rents and they have not paid the rents since December-2013. The plaintiff is an old aged widow and the said schedule premises is very much necessary for her use and occupation. Therefore, she has requested the defendants to quit, vacate and deliver the vacant possession of the schedule premises, but the defendants have refused to vacate the schedule premises and to pay the monthly rental amount. The defendant no.1 is a habitual drinker, his behavior is very arrogant and disgusting. Without reason, he started to quarrel with the plaintiff and her family as well as neighbors. Therefore, the plaintiff has issued a legal notice on 16.05.2014 to the defendants calling upon them to pay the arrears of rent and to vacate the schedule premises. Inspite of service of notice, the defendants did not vacate and handover the vacant possession of the schedule premises. The plaintiff has executed a registered Will on 01.10.2013 in respect of schedule premises in favour of her grandson by name Yashwanth Kumar. By coming to know about the said fact, the defendants are making hectic efforts to give trouble to the plaintiff to get the Will cancelled and to knock off the valuable property of the plaintiff.
Therefore, the plaintiff has filed this suit for ejectment of the defendants from the schedule premises, for arrears of rent and for mesne profits from the date of suit till the date of delivery of vacant possession of the property.
3. In pursuance of the summons, the defendants have appeared before the court through their counsel and filed common written statement denying the averments of the plaint SCCH-14 5 SC.No.734/2014 as false and contended that the suit is not maintainable in law or on facts, that the grandfather of the defendant no.2 by name Anjinappa has purchased the property bearing No.6 in Sy No.33/3 of Sampigehalli village, Kasaba hobli, Bangalore north Taluk, which is now situated at No.2, 4 th main, 15th cross, Sampangiramanagar, Bangalore measuring 12' X 60' from his hard earned money in the name of his wife i.e., the plaintiff, that the plaintiff is the grandmother of the defendant no.2 and after death of Anjinappa, the mother of the defendant no.2 acquired equal share in the said property and other properties, that the mother of the defendant no.2 being the daughter of the plaintiff was living in the schedule premises and she entrusted the responsibility of the defendant no.2 to her mother, that the plaintiff was managing and holding the schedule property for herself and on behalf of the mother of the defendant no.2 and other legal heirs of Anjinappa, that since the relationship was cordial, there was no occasion for the mother of the defendant no.2 to demand her share in the estate of her father or in the schedule premises, that the mother of the defendant no.2 died in the year 2006 and after her death, the plaintiff just to please the defendant no.2 has executed a Will bequeathing the schedule premises in her favour, that in the beginning of the year 2012, the plaintiff fell sick and bed ridden and the son of the plaintiff by name Rajgopal by taking advantage of her sickness, by dubious means managed to get the gift deed in his favour in respect of property bearing No.6 of Sy.No.33/3, that he has filed this suit only to harass them in the name of the plaintiff without her knowledge and consent, that the SCCH-14 6 SC.No.734/2014 allegations made in the plaint are false and baseless, that they are staying in the schedule premises as legal heirs of Anjinappa, that they are lawful owners of the schedule premises and are not tenants of the plaintiff, that there is no jural relationship between them and the plaintiff as tenants and landlord and question of payment of rent, arrears of rent and termination of tenancy does not arises, that the plaintiff has filed a false suit to make wrongful gain, that there was no cause action to file the suit. Hence, they have sought for dismissal of the suit with exemplary cost.
4. During the evidence, the plaintiff has examined her GPA holder as PW.1 and got marked documents as Ex.P1 to P13. The defendants have examined the defendant no.2 as DW.1 and got marked ration card and copy of plaint in OS No.26/15 as Ex.D1 and 2.
5. Heard the arguments and perused the records.
6. Now, the points that arise for my consideration are:
1. Whether the plaintiff has proved the existence of jural relationship of landlord and tenant between her and the defendants?
2. Whether the plaintiff has proved that the tenancy of the defendants is duly terminated?
3. Whether the plaintiff has proved that the defendants are in arrears of rent as stated in the plaint?
4. Whether the plaintiff is entitled for the relief as prayed for?
5. What order or decree?SCCH-14 7 SC.No.734/2014
7. My answer to the above points are as follows:
POINT No.1 to 4 : In Negative.
POINT No.5 : As per final order
for the following:
REASONS
8. POINT No.1 to 4: These points are interlinked and hence, I have taken them together for common discussion. The plaintiff has relied upon oral evidence of PW-1 and contents of Ex.P1 to 13 to prove her case, whereas the defendants have placed reliance on the oral evidence of DW-1 and contents of Ex.D1 and 2 to disprove the case of the plaintiff and to prove their defence.
9. PW-1 Rajagopal is the SPA holder of the plaintiff and he has deposed as per the case of the plaintiff. He is none other than the son of the plaintiff. Deed of SPA is at Ex.P1 which reveals that the plaintiff has authorised PW-1 to prosecute the matter before the Court. The defendants have contended that the plaintiff is unaware of the fact of filing suit against them and PW-1 has filed this suit to harass them without knowledge and consent of the plaintiff, but they have not produced any evidence to substantiate their contention. Uncorroborated evidence of DW-1 Nirmal in that regard can not be believed. Hence, contents of Ex.P1 are to be accepted.
Moreover, the plaintiff is the mother of PW-1 who has deposed before the Court on his personal knowledge. Hence, his evidence is admissible.
SCCH-14 8 SC.No.734/201410. Copy of sale deed dated 08.05.1957 is at Ex.P2 which discloses that the plaintiff has purchased property measuring 12'X60' from Smt.Gowramma and her husband for valuable consideration. The defendants have contended that the said property was purchased by the husband of the plaintiff from his hard earned money in the name of plaintiff. DW- 1:Nirmala has deposed to that effect, but in cross examination, she has admitted that the property was purchased in the name of the plaintiff by her mother. Looking to the contradictory version of DW-1, contention of the defendants is liable to be rejected. The property is purchased in the name of the plaintiff and hence, she has become absolute owner of the same.
11. Ex.P3 is copy of gift deed dated 24.04.2012 which goes to show that the plaintiff has gifted property to the extent of 12'X50' out of the property purchased under Ex.P2 in favour of PW-1 Rajagopal. The said property is situated abutting the schedule premises. The defendants have denied the right of the plaintiff to execute gift deed in favour of PW-1, but the property is purchased by the plaintiff and she is the owner of the same and hence, her right of disposition of property can not be questioned by the defendants. However, Ex.D2 discloses that the defendant No.2 has filed OS No.26/2015 against the plaintiff and others seeking partition in the joint family properties including the schedule premises and the property gifted in favour of PW-1. The said matter will be decided by the competent civil Court and this Court can not dwell upon the right of the defendant No.2 in the said properties.
SCCH-14 9 SC.No.734/201412. Ex.P4 is Will dated 01.10.2013 and it reveals that the plaintiff has executed a Will expressing her intention to bequeath the schedule premises in favour of Yeshwanth Kumar S/o Rajgopal who is her grand son. The plaintiff has contended that execution of said Will has made the defendants to create problems in respect of schedule premises. It is to be noted that the defendant No.2 has already filed a suit for partition against the plaintiff and Hon'ble CCH, Bangalore will decide her right in respect of share in joint family properties. Execution of Will does not take away the right of the plaintiff and the defendants in respect of the schedule premises as the intention expressed in the Will comes into operation only after the death of the testator. Moreover, a specific suggestion is made to DW-1 that the plaintiff has cancelled the Will executed in favour of Yeshwanth Kumar.
13. Ex.P5 is the endorsement issued by BBMP, Ex.P6 is voter ID of the plaintiff which disclose that the Khata pertaining to property purchased under Ex.P2 was transferred in the name of the plaintiff. Copy of legal notice, Postal receipts, acknowledgments are at Ex.P7 to 11 which go to show that the plaintiff has called upon the defendants to quit, vacate and deliver the vacant possession of the schedule premises. It is stated in the notice that the defendants were in arrears of rent for 6 months amounting to Rs.3,000/-, that the notice was sent to the defendants to the address of schedule premises and it was duly served upon them. DW-1 Nirmala has admitted the service of notice, but she has denied the suggestion that no SCCH-14 10 SC.No.734/2014 reply is issued to such notice. The defendants have not produced any evidence to prove that they have issued reply to the notice of plaintiff at Ex.P7.
14. Electricity bill and water bill are at Ex.P12 and 13 which reveal that the electricity and water charges pertaining to the schedule premises are being paid by the plaintiff. DW-1 Nirmala has stated in cross examination that there is no tap connection to the schedule premises and they use of pay their share of electricity charges to Rajagopal. There is nothing on record to disbelieve her evidence as to payment of proportionate electricity charges. Moreover, her evidence to that extent is not denied.
15. Ex.D1 is the Ration Card of the defendants. The address of the schedule premises is shown in Ex.D1. The said ration card was issued on 30.10.2002. PW-1 Rajagopal has deposed that the defendants have occupied the schedule premises as tenants on monthly rent of Rs.500/- on 15.01.2012. DW-1 Nirmala has deposed that she is residing in the schedule premises during the life time of her mother and continued to reside therein even after death of her mother. Contents of Ex.D1 corroborate the evidence of DW-1 and are contradictory to the version of PW-1 that the defendants have occupied the schedule premises on 15.01.2012. It is argued on behalf of the plaintiff that the defendants have created Ex.D1, but there is nothing on record to substantiate the same. Therefore, I am of the opinion that the defendants have been residing in the schedule premises much earlier to 15.01.2012. The plaintiff has SCCH-14 11 SC.No.734/2014 not produced any evidence to believe that there was an agreement between her and the defendants regarding payment of rent. Looking to the ration card at Ex.D1, it reveals that the defendants are the permissive users of the schedule premises and are residing therein since during the life time of the mother of the defendant No.2, that the defendants are residing in the schedule premises since prior to 30.10.2002. Therefore, contention of the plaintiff and evidence of PW-1 as to jural relationship between the plaintiff and the defendants fall on the ground. There is no jural relationship between the parties and hence, the notice at Ex.P7 is of no avail. Since, the defendants are not the tenants under the plaintiff, question of termination of their tenancy does not arise.
16. It is categorically admitted that the schedule premises measures 12'X 10'. Its total area is 120 sft. The said property is stated to be a commercial property. The defendants have contended that they are residing in the schedule premises, but we have to go by the averments of the petition as to nature of the property. In para No.1 of the plaint, it is stated that the schedule premises is commercial property measuring 120 sft.
Section 27 of Karnataka Rent Act reads as under;
Protection of tenants against eviction;
(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by the Court, District Judge or High Court in favour of the landlord against a tenant, save as provide in sub-section(2).
SCCH-14 12 SC.No.734/2014(2) The Court may, on an application made to it in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only,"
The above provision makes it clear that no order of eviction can be passed against the tenant except on the grounds provided under Sec.27(2) of Karnataka Rent Act. If the provisions of Karnataka Rent Act are not applicable, then the provisions of Section 106 of TP Act are applicable. The properties which are not covered under Karnataka Rent Act fall under the provisions of TP Act and the landlord acquires a right to terminate the tenancy of his tenants by a quit notice as required U/s 106 TP Act. If the property falls within the purview of Karnataka Rent Act, issuance of notice U/s 106 of TP Act does not terminate the tenancy of protected tenant.
17. Section 2 of Karnataka Rent Act defines the properties which are excluded from the purview of the said Act. Sub section 2(3)(g) prescribes that the commercial property whose area is more than 14 sq mtr is excluded from the purview of Karnataka Rent Act which means the commercial property whose area is less than 14 sq mtr falls within the purview of Karnataka Rent Act and the tenant under such property is protected tenant. His tenancy can not be terminated by issuing a quit notice U/s 106 of TP Act. Such tenant can only be evicted from the property on the grounds provided U/s 27(2) of Karnataka Rent Act. In this case, the schedule property is a commercial property measuring 120 sft which is less than 14 sq mtr. Even if it is held that the defendants are the tenants under SCCH-14 13 SC.No.734/2014 the plaintiff, they become protected tenants and they can only be evicted from the schedule property on the grounds provided U/s 27(2) Karnataka Rent Act. The notice at Ex.P7 does not terminate the tenancy if any of the defendants. The said notice at Ex.P7 is hit by the provisions of Karnataka Rent Act. The plaintiff can evict the defendants from the schedule premises only on the basis of grounds provided U/s 27 (2) Karnataka Rent Act and not otherwise that too by proving their status as tenants. She has failed to prove that the defendants are tenants under her in respect of schedule premises. On the other hand, the evidence produced by the defendants disclose that they are the permissive possessors of the schedule premises. Section 8 of Karnataka Small Cause Courts Act reads as under;
"8.Cognizance of suits by Courts of Small Causes:
(1) A Court of Small Causes shall not take cognizance of the suits specified in the Schedule as suits excepted from the cognizance of a Court of Small Causes.
(2) Subject to the exception specified in the Schedule and to the provisions of any law for the time being in force, all suits of a civil nature of which the value does not exceed five hundred rupees shall be cognizable by a Court of Small Causes:
Provided that the State Government, in consultation with the High Court, may by notification, direct that all suits of which the value does not exceed (Ten thousand rupees). "shall be cognizable by a Court of Small Causes mentioned in the notification."SCCH-14 14 SC.No.734/2014
Schedule the said Act provides list of suits which do not fall under the purview of the Court. Sl.No.4 of the list reads as under;
(4) a suit for the possession of immovable property or for the recovery of an interest in such property but not including a suit for ejectment where-
(a) the property has been let under a lease or permitted to be occupied, by a written instrument or orally, and
(b) the Court of Small Causes would be competent to take cognizance of a suit for the rent of the property, and
(c) the only substantial issue arising for the decision is as to whether the lease has been determined by efflux of the time limited thereby or has been determined by a notice in accordance with the law for the time being in force in respect of such lease or the permission to occupy has been withdrawn:"
18. The defendants are in possession of the schedule premises as permissive users. The plaintiff has to file a suit for possession of the schedule premises before Civil Court after terminating the permission granted to the defendants. This Court can not entertain such a suit which is excepted under schedule, that present suit is beyond the powers of this Court. Hence, the suit is not maintainable and the plaintiff is not entitled for the relief sought for and I answer the points in negative.
19. POINT No.5: In view of above discussion and findings, I proceed to pass following:SCCH-14 15 SC.No.734/2014
ORDER The suit of the plaintiff is dismissed with cost.
(Typed directly on the laptop, corrected by me and then pronounced in the open Court on this 10th day of April, 2015) [ (Basavaraj Chengti) XVI ADDL.JUDGE, Court of Small Causes, BANGALORE.SCCH-14 16 SC.No.734/2014
SCHEDULE All the piece and parcel of suit premises bearing No.2, Old Municipal No.467, PID No.77/23/2, 15 th cross, 4th main, BBMP Ward No.77, S.R.Nagar, Bangalore-27, measuring East to West 12 feet and North to South 10 feet and total extent of 120 Square feet and bounded on:
East by: Road, West by: House belonging to Munibhadrappa, North by: Remaining portion of Rajgopal Building and South by: Moori (canel) and property of Narayanappa.
XVI ADDL.JUDGE, Court of Small Causes, BANGALORE.SCCH-14 17 SC.No.734/2014
ANNEXURE LIST OF WITNESSES EXAMINED AND DOCUMENTS MARKED FOR PLAINTIFF AND DEFENDANTS:
PW.1 Rajagopal
Defendants
DW.1 Nirmal
Ex.P1 Deed of SPA
Ex.P2 Copy of Sale deed dated: 08.05.1957.
Ex.P3 Gift deed dated: 24.04.2012.
Ex.P4 Will dated: 01.10.2013.
Ex.P5 Endorsement issued by BBMP.
Ex.P6 Voter ID of plaintiff.
Ex.P7 Copy of Notice issued to the defendants.
Ex.P8 & 9 Postal Receipts
Ex.P10 Acknowledgment
Ex.P11 Acknowledgment
Ex.P12 Electricity Bill.
Ex.P13 Water Bill.
Defendant's
Ex.D1 Ration card
Ex.D2 Copy of plain in OS No.26/15 with valuation slip
XVI Addl.Judge,
Court of Small Causes,
Bangalore.
SCCH-14 18 SC.No.734/2014
DECREE
S.C.C.H.NO.14
IN THE COURT OF SMALL CAUSES COURT, AT BANGALORE.
S.C.No.734/2014
Plaintiff: Smt.Chinnamma alias
Chennamma,
W/o late. Anjinappa,
Aged about 86 years,
R/at No.2,
15th cross, 4th main,
Sampangiramanagara,
Bangalore-560 027.
(By pleader Sri MSS)
Vs.
Defendants : 1. Shri.Ravi,
S/o Lakshmaiah,
Aged about 45 years,
2. Smt.Nirmala,
W/o Ravi,
Aged about 40 years,
R/at No.2,
15th cross, 4th main,
Sampangiramanagar,
Bangalore-560 027.
( Defendants-By
pleader Sri ND)
CLAIM: Suit filed on prays for directing
defendant to quit and vacate the vacant possession of the schedule premises.SCCH-14 19 SC.No.734/2014
This suit coming on` for final disposal before Sri.Basavaraj Chengti ., XVI Addl. Judge, CSC, Bangalore, in the presence of Sri/Smt Advocate, for the plaintiff and Sri/Smt Advocate, for the defendant.
ORDER The suit of the plaintiff is dismissed with cost.
Given under my hand and the seal of the Court this Day of 2015.
DY. REGISTRAR, COURT OF SMALL CAUSES, BANGALORE.
MEMORANDUM OF COST INCURRED IN THIS SUIT By the Plaintiff Defendant Court fee on plaint Court fee on power Court fee on exhibits Service of process + Postal charges Commissioner's fees Pleaders fee _________________________ Total of Rs. _________________ Amount payable by the defendant to the plaintiff is Rs.
SCHEDULE All the piece and parcel of suit premises bearing No.2, Old Municipal No.467, PID No.77/23/2, 15 th cross, 4th main, BBMP Ward No.77, S.R.Nagar, Bangalore-27, SCCH-14 20 SC.No.734/2014 measuring East to West 12 feet and North to South 10 feet and total extent of 120 Square feet and bounded on:
East by: Road, West by: House belonging to Munibhadrappa, North by: Remaining portion of Rajgopal Building and South by: Moori (canel) and property of Narayanappa.
Decree Drafted Scrutinised by DY. REGISTRAR,
COURT OF SMALL CAUSES,
BANGALORE
Decree Clerk SHERISTEDAR
SCCH-14 21 SC.No.734/2014
Dt.10.04.2015.
P-MSS
D1 & 2-ND
For judgment
Order pronounced in open court vide
separate judgment.
ORDER
The suit of the plaintiff is dismissed with cost.
XVI ADDL.JUDGE, Court of Small Causes, BANGALORE.