Bangalore District Court
The Central Muslim Association vs Mr. Eshwarappa on 20 April, 2023
SCCH-2 S.C.920/20219
KABC020157052019
FORM NO.
(9) (CIVIL) TITLE SHEET FOR JUDGMENT IN SUIT
(R.P.91)
IN THE COURT OF THE VI ADDL. SMALL CAUSES
JUDGE & ADDL. CHIEF METROPOLITAN MAGISTRATE,
BENGALURU CITY
DATED THIS THE 20th DAY OF APRIL, 2023.
PRESENT: Smt. Shainey K.M., B.A.L.,LL.B.,.
VI Addl. Small Causes Judge &
ACMM, Bengaluru.
S.C.No.920/2019
PLAINTIFF : The Central Muslim Association
of Karnataka,
Represented by its General
Secretary
Dr. Zahiruddin Ahmed,
Office at Abbas Khan College for
Women, O.T.C. Road Cross,
Bangalore-560 002.
(By Sri. Riyaz Ahamed Sheriff, Advocate)
SCCH-2 2 S.C.920/2019
-Vs-
DEFENDANTS 1. Mr. Eshwarappa,
S/o Late Narayanna Swamy,
Major in age.
2. Mr Suryanarayana,
S/o Late Narayana Swamy,
Major in age.
Both are residing at No.238/11,
Mohammed Shariff Education
Trust Building,
Subedar Chatram Road,
Yeshwanthpur,
Bangalore-560 022.
(By Sri. Mahalinga Bhat, Advocate)
Date of institution of the suit : 25.06.2019.
Nature of the suit : Ejectment
Date of commencement of : 23.01.2020.
recording evidence
Date of judgment : 20.04.2023
pronounced
Total duration : Year/s Month/s Day/s
-03- -09 - -25-
SCCH-2 3 S.C.920/2019
:JUDGMENT:
The plaintiff has filed this suit against the defendant for Ejectment, directing the defendant to quit and deliver vacant possession of the suit schedule property and recovery of arrears of rent for a period of 36 months and to award costs.
02. The brief facts of the plaintiff's case in nutshell are that:
2.1 The plaintiff is the owner and landlord of properties known as Mohammed Sheriff Education Trust, Yeshwanthpur, Bangalore and it is a registered Trust. Smt. Narasamma, the mother of defendants was the tenant under the plaintiff on a monthly rent of Rs.8/- in respect of property no:238/11, situated in Mohammed Shariff building, Yeshwanthpur, Bangalore.
2.2 It is averred, during her lifetime, Smt. Narasamma has filed OS no: 2989-1981, before 1st Additional City Civil Judge, Bangalore, against the defendant for declaration and Injunction and it was decreed on 7.10.1985. It is averred, SCCH-2 4 S.C.920/2019 Smt. Narasamma got her name entered in the City survey records, without paying the rents and plaintiff's Association has challenged the said entries before the Joint Director, Department of Survey settlement and land records, Bangalore, as per property land Division LA-3, Yeshwanthpur PT sheet, no:193, City Survey No:37/L, area in square meters 141-7, CTS no: 33 and 37, name of the Holders Central Muslim Association in no: CTS (R) Revision 13/2008-09.
2.3. During pendency of the Revision, Smt. Narasamma passed away and her 3 sons, i.e., defendants of the case, brought on record, among them, Mr. Krishnappa has passed away. The revision petition has been allowed on 27.02.2009, and the name of Smt. Narasamma entered in the revenue record has been deleted by the Order of Joint Director of Land record, city Survey South Zone.
2.4. The defendants herein are the legal heirs of deceased Narasamma and they have succeeded to the estate left by their mother Narasamma and became the tenants of the SCCH-2 5 S.C.920/2019 plaintiff in respect suit property for rent of Rs.8/-
commencing from 1st day of each calendar month. 2.5. It is averred that defendants are chronic and persistent defaulter in paying rents and they have not paid the rents even after the order passed by Joint Director of land record in Rev. no: 13-2008-09. As such, the plaintiff restricted its claim in respect of rents for 36 months only. The arrears of rent paying by the defendants is only Rs.288/-. The plaintiff issued demand notice to the defendants calling upon them to pay rents. In spite of requests and demands and legal notice, the defendants did not pay the rent or arrears of rent.
2.6. The plaintiff required the suit property for its bonafide purpose as it is constructing Hostel to accommodate the students who are studying in plaintiff's college. The need of the plaintiff is genuine and honest without any oblique motive. Hence, the plaintiff is prayed to allow the suit.
03. The defendant no: 1 and 2 filed written statement and contested the suit. Ownership of plaintiff over the suit SCCH-2 6 S.C.920/2019 property is denied. The jural relationship of landlord and tenants is denied. It is denied that plaintiff association is a Muthavalli of the Waqf. The suit for possession by way of ejectment is not maintainable in view of section 6 and 7 of Waqf Act.
3.1. It is admitted by defendants that their mother, late. Narasamma , was the tenant in respect of the residential structure bearing Door no: 238-11, new no: 179, situated at Mohammed Shariff Building, Yeshwanthpur, Bengaluru with plinth area of 31 Ft X 11.4 Ft, for monthly rent of Rs. 8/- per month. The above said portion of the building is not part of Mohammed sheriff Education Trust nor situated in the same Vatara. The suit property is shown as the house as well as open space, which was utilized by Late. Narasamma for doing her Charcoal business and clubbing of the house property which was rented for a monthly rental of Rs. 8/- per month with open space which is situated separately cannot be justified under any circumstances.
SCCH-2 7 S.C.920/20193.2. Smt. Narasamma died on 15.05.2007, leaving behind defendants and her son late. Krishnappa. Aforesaid Krishnappa has died on 10.07.2009 leaving behind his children namely Smt. Varalakshmi, Smt. Uma, Smt. Nagarathna, Smt. Sudha, Smt. Vasanthkumar and Sri. Nagesh. Legal heirs of late. Krishnappa are necessary parties to the case. Legal heirs of deceased Narasamma are in joint possession of the portion of building no: 238/11, new no: 179 and open space on the southern side of the building which is separated by a common passage. The suit property as shown in the plaint is not giving real picture about the house building and open space and same is shown for taking undue advantage and for ejecting the defendants from separate property.
3.3. It is admitted that Narasamma had filed civil suit against the present plaintiff in O.S no: 2989-1981. In said suit, it has been declared that Narasamma is the tenant of the residential building bearing no: 238-11, new no: 179 and an order of permanent injunction has been granted against SCCH-2 8 S.C.920/2019 the plaintiff by order dated 10.03.1986. Legal heirs of deceased Narasamma are in possession and enjoyment of residential building bearing no: 179, measuring 31 Ft x 11.4 ft and open space measuring 40 x 45 ft and got entered the name of Smt. Narasamma in City Survey Records and PT sheet no: 193, land records, City Survey no: 37/L, CTS no.s 33 and 37. So, the plaintiff has initiated proceeding before Joint Directors of Land records as per notice dated 27.2.2009 which was not served on the family members of Smt. Narasamma died on 15.5.2007. The plaintiff has created some documents including order in above proceedings behind the back of defendants. Sri. Krishnappa, son of Narasamma was also seriously fell ill on that period and died on 10.07.2009. Narasamma along with her family members has occupied a small residential building with measurement of 31 ft X 11.4 ft belonged to Late. Mohammed Shariff during her life time. She was doing charcoal business in opposite of vacant site measuring 2x37 ft., for which no rent was fixed. She had utilized that SCCH-2 9 S.C.920/2019 property with knowledge of the owner since 1942. After her death, her legal heirs and family members have continued with same business in said vacant site. The defendants are in possession and enjoyment of said property continuously without any interruption from anybody and without rent. 3.4. It is averred defendants and Narasamma decided to demolish the structure in existing property bearing no:
238/11 new no:179 for which plaintiff has raised objection so, she was constrained to file a suit for declaration and injunction and OS no: 2989/1981 was decreed in her favor. Defendants and their family members are in possession enjoyment of property bearing no: 238/11, new no: 179 and vacant site property situated in Sy no: 37 (CTS no: 37/L), Yeshwanthpur village since more than 78 years. In aforesaid suit, the plaintiff filed the written statement contending that defendants are tenants and suit property is a Waqf property, Narasamma being tenants of the property not paid Rent since 1.4.1973.SCCH-2 10 S.C.920/2019
3.5. It is averred that plaintiff has initiated a HRC (Os no:
635-1987) proceeding against the defendants and same was dismissed by honble High court on a ground that HRC Act is not applicable to the Waqf property. The defendants admit they have not paid any rent since 1.1.1974 to the building which was under dilapidated condition and thereafter, they have constructed a new building the property after the judgment and decree in OS no: 2989/1981.
3.6. It is the specific defence of the defendants that, they have perfected their title in respect of property in question and they are in possession of the property for more than 78 years. In vies of Sec. 65 of Limitation Act, the present suit is barred by limitation. There is no lease in respect of vacant space measuring 40x45 ft. The tenancy in respect of room bearing no: 238/1, new no: 179 has been terminated on 1.4.1974 itself, when the defendants stopped paying the rent. The defendants have constructed the house in the SCCH-2 11 S.C.920/2019 year 1986 in aforesaid property. With these averments they prays to dismiss the suit.
04. General Secretary of plaintiff was examined as P.W.1. Ex.P.1 to 19 were marked in evidence. 2 nd defendant examined himself as D.W.1. Ex.D.1 to 15 were marked in evidence.
05. Heard arguments of both parties, perused the materials placed on record. The following points that would arise for my consideration are:
POINTS
1. Whether the plaintiff and the defendant have relationship of landlady and tenant?
2. If so, whether plaintiff has duly terminated the tenancy of defendant in accordance with law?
3. Whether defendants proves the suit is barred by limitation?
4. Whether plaintiff is entitled for the relief sought?
5. What order?SCCH-2 12 S.C.920/2019
06. My answers the points are as follows:
Point No.1 : In the Affirmative.
Point No.2 : In the Affirmative.
Point No.3 : In the negative.
Point No.4 : In the Affirmative.
Point No.5 : As per final order for the following
REASONS
07. POINT No.1 to 4:- These points are taken together for discussion to avoid repetition, as they are interconnected to each other. This is a suit for Ejectment of the tenant. The suit schedule property is house and open space, bearing Door No.238/11, measuring 40 X 45 feet, situated at Subedar Chatram Road, Yeshwanthapura, Bengaluru.
08. As regarding Jurisdiction:- Defendants have seriously contested the suit in hand and denied that, they are the tenants under the plaintiff. Learned counsel for the defendants argued that, in view of Sec.4 to 7 of the Wakf Act, 1995, the suit is barred by law and the Civil Court has SCCH-2 13 S.C.920/2019 no jurisdiction to try the case. Sec.4 of aforesaid Act refers to preliminary survey of Wakfs. Sec.5 of the Act refers to publication of list of Wakfs. Sec.6 of the Act refers to disputes regarding Wakfs.
09. If any question arises whether a particular property specified as Wakf property in the list of Wakfs is Wakf property or not, or any person interested therein may institute a suit in a Tribunal for the decision of question and the decision of the Tribunal in respect of such matter shall be final. Sec.6 of the Wakf Act 1995 refers to about publication of list of Wakfs and survey works to be done by Survey Commissioner. It is just and proper to refer Sec. 83 of Act and same reads as follows:
"Section-83 Constitution of Tribunals, etc.-(1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a waqf or waqf property, eviction of a tenant or SCCH-2 14 S.C.920/2019 determination of rights and obligations of the lessor and the lessee of such property, under this Act and define the local limits and jurisdiction of such Tribunals."
10. From the bare reading of Section 83 (1) and Section 85 of the Waqf Act, 2013, it is crystal clear that nowhere it is mentioned that the Civil Court's jurisdiction has been waived, excluded or barred by those sections. In my considered view if it is an ejectment/eviction suit of the waqf property and no dispute raised which are specified in Section 6 and 7 of the Act, then the suit for eviction against the tenant relating to a waqf property is very much within the domain of Civil Court and not within the jurisdiction of waqf Tribunal.
11. This ejectment suit is a simplicitor for evicting the tenant from the waqf property, the meaning thereby no dispute has been raised under Section 6 and 7 of the waqf Act in the present case in hand by the tenant. It is nobodies case that the suit property is not a waqf property. SCCH-2 15 S.C.920/2019
12. Therefore in my considered view in the present case in hand no 'dispute' has been raised by any of the parties regarding waqf property. A 'Dispute' as indicated under Section 85 of the Amendment Act, 2013 does not include eviction of a tenant from the waqf property.
13. Since no dispute has been raised by any of the parties under Section 6 & 7 of the Waqf Act regarding Waqf property, In my considered view Civil Court has exclusive jurisdiction to try, entertain and determine the said present suit being Ejectment suit. My reasons are supported with the decision of Hon'ble Supreme Court of India, reported in AIR 2014 Supreme Court 2064 in a case between Feseela M. Vs. Munnerul Islam Madrasa Committee and another ( Paragraphs 17 & 18).
14. In above case Hon'ble Apex Court not only Section 83(1) of the Waqf Act was narrated and passed the said decision by holding that the said suit for eviction against the tenant relating to a Waqf property is exclusively triable by SCCH-2 16 S.C.920/2019 the Civil Court on the specific ground that such suits are not covered by the disputes mentioned in Section 6 and 7 of the Act.
15. Therefore, in my considered view in previous suit, i.e., OS no: 2989-1981 (ExP:9) since the deceased Tenant did not raise any "Dispute" regarding the said Waqf property, therefore, this Ejectment suit cannot be referred to the Waqf Tribunal and the said present Ejectment Suit shall be exclusively tried, entertained and determined by no other forum but the Civil Court.
16. As regarding Non Joinder of necessary parties:-
Learned counsel for defendants argued that, one deceased Krishnappa is the son of Narasamma and said Krishnappa or his legal heirs are not parties in this case and therefore, the suit is bad for non-joinder of necessary parties. On the other hand, learned counsel for the plaintiff argued that, a suit against heir of lessee without bringing all the heirs or successors in interest on the record is not bad SCCH-2 17 S.C.920/2019 for non-joinder of parties. It is admitted fact that, defendants are members of Hindu Joint Family. A suit for rent or ejectment of tenant is maintainable against some of the heirs of deceased tenant. Even the single heir is made party to the suit is liable for the whole rent, but upon payment will be entitled to claim contribution from his Co- debtors. Learned counsel for plaintiff has relied on decision of Hon'ble Calcutta High Court reported in AIR 1966 Calcutta
447.
17. Order I Rule 9 of CPC makes it clear that no suit shall be defeated by reason of non-joinder of necessary parties. Therefore, the suit filed by the plaintiff is not bad for non- joinder of parties when defendants who were the sons of deceased tenant are already on record.
18. The question arises is whether the notice addressed to the defendants herein alone is a valid notice. Hon'ble Apex Court has held in Omprakash Vs. Dhanakumar Dudraj reported in AIR 2005 NOC 138 that, proof of service of SCCH-2 18 S.C.920/2019 notice of eviction on one of the heirs is sufficient to maintain the suit for eviction against other heirs of deceased tenant.
19. It is admitted fact that, defendants herein and late. Krishnappa are sons of deceased tenant. The death of Krishnappa is not in dispute. Ex.D.7 is the death certificate of Krishnappa. Ex.D.8 is the death certificate of deceased Narasamma, the original Tenant. Ex.D.9 is the birth certificate of daughter of defendant No.1 herein. The name of his daughter not mentioned in said birth certificate and it was issued in the year 1989.
20. P.W.1 has denied that, all legal heirs of deceased Krishnappa have not been impleaded as additional defendants in the case with malafide intention. In cross examination, P.W.1 deposed that he does not know Smt. Varalakshmi, Smt. Uma, Smt. Nagarathna, Smt. Sudha, Sri. Vasanth Kumar and Sri. Nagesh are legal heirs of deceased Krishnappa.
SCCH-2 19 S.C.920/2019
21. So, it is the burden of the defendants to establish that, aforesaid Varalakshmi, Smt. Uma, Smt. Nagarathna, Smt. Sudha, Sri. Vasanth Kumar and Sri. Nagesh are children and class I legal heirs of deceased Krishnappa by placing positive evidence. To substantiate their contention, defendants have not produced the G-Tree of late. Krishanappa to establish that, aforesaid mentioned persons are his class I legal heirs.
22. Even children of Late. Krishnappa and alleged joint tenants of suit property have not voluntarily appeared before the court seeking for an order to get them impleaded as additional defendants in the suit.
23. It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy is the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. SCCH-2 20 S.C.920/2019 There is no division of the premises or of the rent payable there for. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants.
24. In the present case, it appears that the defendant no:1 and 2 acted on behalf of the other tenants, they accepted notice on behalf of all and contested the suit in hand. In the circumstances, the notice served on the defendant no:1 and 2 was sufficient. In my opinion, the notice under Sec. 106 of the Transfer of Property Act served by the plaintiff on the defendant No.1 and 2 is a valid notice and therefore, the suit must succeed. My reasons are supported by the decision of the Hon'ble Supreme Court of India, reported in 1989 AIR 1470, 1989 SCR (2) 769, in a case between Sri. H.C. Pandey Vs G.C.
25. As regarding Jural relationship:-The defendants have disputed the jural relationship of landlord and tenant between the parties to the case. To substantiate their SCCH-2 21 S.C.920/2019 contention, 2nd defendant- Suryanaraya has filed affidavit in lieu of evidence in consonance with written statement averments and examined himself as Dw:1. He has produced total 15 documents as ExD:1 to 15 respectively.
26. Dw:1 deposed that, plaintiff association is not the owners or landlords of the suit schedule property nor Muthavalli of Waqf. The property in question is not specified as waqf property in the list of waqf. Plaintiff is not entitled for possession of the property by suit for ejectment. There is no valid lease as alleged in the plaint and pleadings are not conformity with sec 156 of Waqf Act.
27. Dw:1 deposed that Narasamma was the tenant in respect of a residential structure bearing Door no: 238/11, new no: 179 situated at Gayatri temple road, 1 st cross, Yeshwanthpur with a plinth area of 31 ft x 11.4 ft for a monthly rental of Rs. 8 per month. The above portion of the building was not a part of Mohammed sheriff education trust or not situated in the same vatara. The suit schedule SCCH-2 22 S.C.920/2019 property is shown as the house as well as the open space which was utilized by deceased Narasamma for doing her charcoal business and clubbing of the house property which was rented for monthly rental of Rs.8 with open space which is situated separately cannot be justified under any circumstance.
28. Dw:1 further deposed that, decease tenant Narasamma has initiated a suit for declaration and injunction against the plaintiff in OS no: 2989-1981 in respect of residential building bearing no: 238/11, new no:
179 and said suit was decreed by declaring that Narasamma is the tenant of aforesaid property and granted permanent injunction.
29. ExD:1 and 2 are the certified copy of Order sheet of the court and plaint in respect of subsequent suit i.e., OS no:
635-1987. In the year 1987, the plaintiff herein has instituted aforesaid suit against the deceased tenant for permanent injunction in respect of the same suit property SCCH-2 23 S.C.920/2019 restraining her from putting up any construction upon the suit property and alternative relief of mandatory injunction for demolition of the constructed portion.
30. Defendants are paying electricity bill to Karnataka Electricity board and it is evident from electricity bill at ExD3 and 4. Defendants have produced the consumer copy of installation of energy meter at ExD.5. After disposal of OS no: 2989/1985, deceased tenant has lodged complaint with Police Commissioner against the plaintiff herein seeking police protection to put up fence around the suit open site and it is evident from perusal of ExD:6. In Said complaint the measurement of the open site is mentioned as 40x45 ft.
31. In previous suit, at ExD-13, the suit property has been described as house and vacant space in front of the house. The measurement of open site is shown as 40x45 feet in ExD:13 and it is not in dispute. The subject matter of property in previous suit filed by tenant is described as house property bearing no: 238/11 and open site. SCCH-2 24 S.C.920/2019
32. At paragraphs no: 12 of judgment in previous suit (ExD:13), it is clearly mentioned that deceased Narasama is not only the tenant of building 238/28 but also to some other properties bearing no: 77. In previous suit, the court has given a clear finding that she has been tenant of room and open site, and room and Shaving saloon are part of the building.
33. The finding given by the court in previous suit regarding tenancy in respect of open site, shaving saloon and room has not been challenged by the deceased Tenant. All these material are sufficient to hold that Smt. Narasamma was the tenant under the plaintiff in respect of suit property including room, shaving saloon and open site. Finding given by the civil court in OS no: 2989-1981, itself is sufficient to hold that Narasamma and after her death, the present defendants being legal heirs of deceased tenant have continued in the suit property as joint tenants. SCCH-2 25 S.C.920/2019
34. Limitation:- Learned counsel for defendant argued that, deceased tenant and present defendants continued to be in possession and enjoyment of the property even after disposal of previous suit and they have perfected their title by adverse possession. Learned counsel for defendant argued that, tenants have constructed a small RCC house in the CTS No.37, measuring 40X45 feet about 15 years ago.
35. To substantiate their contention, D.W.1 deposed that, the suit is barred by limitation and they have conferred right by virtue of adverse possession. D.W.1 deposed that, they are in possession and enjoyment of the property in question more than 20 years or more and got electric connection to their residential house as per Ex.D.6, the electricity bill dated:02.05.1991.
36. The cross-examination of D.W.1 reveals that, no permission or approval plan to construct house in suit property was obtained by deceased tenant. The cross- examination of D.W.1 further reveals that, no consent of the SCCH-2 26 S.C.920/2019 plaintiff was taken prior to construction of house in property in question. It is admitted fact that, a criminal case has been registered against deceased tenant in C.C.No.3909/1984 on the basis of final report submitted by Yeshwanthapura P.S.
37. D.W.1 deposed that, they have constructed house in the property in question after obtaining permission from Commissioner of Police, however, no such permission has been produced by the defendants. The deceased tenant has not paid Tax to concerned revenue department in respect of suit property and it is not in dispute. The termination notice has been served on the defendants and they have not replied notice to it and it is not in dispute.
38. Defendants have produced Encumbrance Certificate for the period from 1944 to 1966, 1966 to 1971 and 1971 to 2004 at Ex.D.10 and 11. Ex.D.12 is the E.C. Form No.16 for the period from 2004 to 2020. In Aforesaid documents, it has been clearly mentioned that, the property in question SCCH-2 27 S.C.920/2019 belong to plaintiff the Mohammed Shariff Building, Yeshwanthapura, Bengaluru.
39. As discussed above, the material placed on record and judgment of the previous suit clearly reveals that, plaintiff is the landlord and defendants are the joint tenants of the suit property. It is admitted fact that, after disposal of previous suit, defendants and their mother have not paid rent to plaintiff. There is no lease agreement executed between the parties. Hence, the lease relationship between the parties is considered as months to months lease. So, the defendants are tenant by sufferance. The possession of the tenant who has ceased to be a tenant is protected by law.
40. In view of the judgment and decree passed in O.S.2989/1981, the possession of the deceased tenant has been protected by law. The Court has declared that, deceased Narasamma is the tenant of the suit property and granted a injunction order directing the present plaintiff not to interfere in peaceful possession of the tenant, as per SCCH-2 28 S.C.920/2019 Ex.P.9-the Judgment passed in O.S.No.2989/1981. In said suit the judgment was pronounced by the Court on 07.10.1985.
41. In the year 1987, the deceased tenant has issued notice to the plaintiff through her counsel contending that, necessary repairs of the house is required and also construction of compound wall around the vacant space and it is evident from perusal of Ex.P.11-the office copy of the notice. The present plaintiff has replied to said notice as per Ex.P.12, contending that, property belong to Wakf and plaintiff association. In reply notice, it is stated that, property is required to plaintiff association for educational purpose. Ex.P.13 is the postal acknowledgment in respect of reply notice.
42. Perusal of Ex.D.1-the Order Sheet of subsequent suit and plaint in O.S.No.635/1987 clearly reveals that, in the year the present plaintiff has filed suit for Permanent Injunction against the deceased tenant restraining her from SCCH-2 29 S.C.920/2019 putting up any construction in the suit property. The subsequent suit was pending for trial till 12.03.1997 and it is evident from perusal of Ex.D.1-the last date of order sheet. So, the possession of tenant on suit property between 1987 to 1999 i.e., till last date of subsequent suit cannot be considered as hostile to the plaintiff herein.
43. Perusal of Ex.P.18 and Ex.P.19, the paper publications discloses that, the plaintiff has given to public not to deal with the suit property through tenant or legal heirs of the tenant. This public notice was given in daily news paper by the plaintiff in the month of February-2005 and June-2006.
44. In the year 2009, a case has been initiated by the plaintiff against the deceased original tenant and legal heirs of deceased tenant before Joint Director, Court of Land Records and City Survey, Mysore and it is evident from perusal of Ex.P.16. The Revision Petition filed by the plaintiff under Sec.56 of the Act, has been allowed and Joint Director has passed an order and ordered to remove the names of SCCH-2 30 S.C.920/2019 late Narasamma and present defendants including late Krishnappa from revenue records of City Survey No.33 and
34. On the basis of judgment passed in O.S.No.2989/1981, dated:10.03.1986, late Narasamma has got entered her name in revenue records of the suit property, but same has been canceled by the order passed by Joint Director as per Ex.P.16. This order was passed on 27.02.2009. Thereafter, the plaintiff issued termination notice to the defendant No.1 and 2 herein on 23.05.2016 as per Ex.P.1 and it is not in dispute. Ex.P.1(a,b) are the postal receipts in respect of termination notice. Ex.P.2 and 3- the postal acknowledgments reveals that, said notice has been duly served on the defendants.
45. In view of the settled position of law, the possession of the defendant and their deceased mother is as tenant at sufferance and it is liable to ejectment in due course of law. Their possession is neither legal nor lawful. In the other words, their possession of the property is unlawful or SCCH-2 31 S.C.920/2019 litigious possession. The defendants may remain in possession until they are ejected in due course in execution of the decree in the suit filed by landlord. Their possession cannot be considered to be settled possession. The plaintiff issued notice to defendants by determining the lease in the year 2016 as per Ex.P.1. The present suit is filed within expiry of 12 years from the determination of lease.
46. Mere non payment of rent does not amounts to forfeiture of tenancy. It only confers a right on the landlord to seek possession. The plaintiff has field the suit for possession against the defendant on the basis of determination of tenancy and such suit is governed by Article 67 of Limitation Act alone. In the present proceedings, the defendants have denied their status as that of a tenant and claimed title in themselves. The defendants claimed averse possession and claimed possession as owner against a person who has inducted their mother as tenant.
SCCH-2 32 S.C.920/2019
47. The defendants shall prove their continuous, open and hostile possession to the knowledge of true owner for a continuous period of 12 years. The question of adverse possession without admitting the title of real owner is not tenable. Moreover, the initiation of revenue proceedings against the defendants and Civil Suit against the defendants by plaintiff clearly reveals that, the possession of the defendants on suit property was not at all peaceful and it was interfered by the plaintiff herein. Therefore, mere possession cannot be deemed to be adverse possession merely on the basis of denial of plaintiff's title over property for that would be violative of basic rites of actual owner.
48. My reasons are supported with decision of Hon'ble Supreme Court of India in a case reported between Nand Ram (D), through LRS., Vs. Jagdish Prasad (D), through LRS., dated:19.03.2020, in Civil Appeal No.9918 of 2011 and Hon'ble High Court of Karnataka in a case between SCCH-2 33 S.C.920/2019 Chepudira Madaiah Vs. Mallengada Chengappa and others in R.F.A.No.1840 of 2005.
49. The initiation of several proceedings between the parties in Revenue Court and Civil Court from 1985 to 2009 and Public Notice given by the plaintiff in daily news papers in respect of suit property in the year 2005 and 2006 and termination notice issued on 2016 clearly reveals that, the possession of the defendants on suit property was not at all peaceful and adverse to possession of landlord. Therefore, the suit is not barred by limitation.
50. The suit for ejectment filed by the plaintiff is within limitation. Therefore, the plaintiff is entitled for the relief sought for in the suit. For the above stated reasons, the decisions relied upon by the defendants are not helpful to prove their plea of adverse possession. In the circumstances, I hold the Points No.1, 2 and 4 are answered in the Affirmative and Point No.3 is answered in the negative.
SCCH-2 34 S.C.920/2019
51. POINT No.5:- In view of the foregoing discussion and findings on Point No.1 to 4, I proceed to pass the following:
:: ORDER ::
The suit of the plaintiff is decreed with cost. Consequently the defendants are hereby directed to quit, vacate and hand over vacant possession of the suit schedule premises to the plaintiff within two months time from the date of this order. Failure of which, the plaintiff is at liberty to proceed as per law.
The plaintiff is entitled for recover arrears of rent of Rs.288/- from defendants. Draw decree accordingly.
(Dictated to the stenographer directly on the computer, corrected, signed and pronounced in the open court on this the 20th April, 2023) (Shainey. K.M) VI Addl. Small Causes Judge & ACMM, Bengaluru.SCCH-2 35 S.C.920/2019
SCHEDULE All that piece and parcel of property comprised of house and in front of it open space, site bearing door No.238/11, Mohammed Shariff Education Trust, Subedar Chatram Road, Yeshwanthpur, Bangalore-560022, and vacant land measuring 40 feet X 45 feet, Bounded on East by : Passage;
West by : Private property;
North by : Shopping complex of Mahmood Shariff
Educational Trust Property;
South by : Property of MSET.
:: ANNEXURE ::
List of witnesses examined for plaintiff:
P.W.1 : Dr. Zahiruddin Ahmed.
List of documents marked on behalf of plaintiff : Ex.P.1 : Copy of legal notice dt:23.05.2016.
Ex.P.1 : 2 Postal Receipts.
(a, b)
Ex.P.2 : Postal Acknowledgment.
Ex.P.3 : Postal Acknowledgment.
SCCH-2 36 S.C.920/2019
Ex.P.4 : Certified copy of order dt:27.02.2009 of Joint Director, City Survey and Land Records, Mysore. Ex.P.5 : Survey Report of the suit property. Ex.P.6 : Letter dt:11.04.2011 issued by the Plaintiff to The Joint Director, City Survey & Land Records, Bengaluru Urgan, Bangalore.
Ex.P.7 : Certified copy of Notice dt:27.02.2009 of Joint Director, City Survey and Land Records, Mysore. Ex.P.8 : Certified copy of Property Card issued by Dept. of Survey Settlement and Land Records. Ex.P.9 : Certified copy of Judgment and decree passed in O.S.No.2989/1981.
Ex.P.10 : Certified copy of Field Book of Detail, Mapping City of Bangalore.
Ex.P.11 : Notice dt:16.02.1987 issued by the counsel for the defendants to plaintiff.
Ex.P.12 : Reply letter dt:31.03.1987 issued by the plaintiff to counsel for the defendants.
Ex.P.13 : Postal Acknowledgment.
Ex.P.14 : Board Resolution of the plaintiff. Ex.P.15 : Notice dated:04.08.2008 issued by the Joint Director, City Survey and Land Records, Mysore. SCCH-2 37 S.C.920/2019 Ex.P.16 : Certified copy of order dt:27.02.2009 of Joint Director, City Survey and Land Records, Mysore. Ex.P.17 : Certified copy of The Mysore Gazette notification dt:22.07.1965.
Ex.P.18 : Vijaya Karnataka daily news paper dt:01.02.2005. Ex.P.19 : Vijaya Karnataka daily news paper dt:30.06.2006. List of witnesses examined for defendants:
D.W.1 : Sri. Suryanarayana.
List of documents marked on behalf of plaintiff : Ex.D.1 : Certified copy of Order passed in O.S.No.635/1987.
Ex.D.2 : Certified copy of Plaint filed in O.S.No.635/1987. Ex.D.3 : Electricity bill.
Ex.D.4 : Electricity bill.
Ex.D.5 : Consumer Copy issued by Karnataka Electricity Board to Narasamma.
Ex.D.6 : Complaint dt:15.06.2006 lodged before Police Commissioner, Bengaluru by Narasamma. Ex.D.7 : Death Certificate of Krishnappa. SCCH-2 38 S.C.920/2019 Ex.D.8 : Death Certificate of Narasamma. Ex.D.9 : Birth Certificate of daughter of Sujatha. Ex.D.10 : Encumbrance Certificate of suit property for the period 01.04.1944 to 30.09.1966.
Ex.D.11 : Encumbrance Certificate for the period 01.05.1971 to 31.03.2004.
Ex.D.12 : Encumbrance Certificate Form No.16 for the period 01.04.2004 to 23.01.2020.
Ex.D.13 : Certified copy of Judgment passed in O.S.No.2989/1981.
Ex.D.14 : Certified copy of Decree passed in O.S.No.2989/1981.
Ex.D.15 : Certified copy of Trust Deed dt:23.05.1946.
(Shainey. K.M) VI Addl. Small Causes Judge & ACMM, Bengaluru.