Bangalore District Court
D.Santhoshmi vs P.Muniraj on 20 September, 2016
IN THE COURT OF THE CHIEF JUDGE,
COURT OF SMALL CAUSES AT BANGALORE
Dated this the 20th day of September'2016
PRESENT: SRI H.P.SANDESH, B.A.L., LL.B.,
CHIEF JUDGE
H.R.C. No.38/2015
Petitioner: D.Santhoshmi,
Wife of Purushothaman,
Aged about 30 years,
R/at No.36, 1st Floor,
Nanda Nivas,
Sathya Layout Colony,
B.Narayanapura,
Bangaluru-560 016.
(By Sri D.Venugopal, Advocate)
-Vs-
Respondents: P.Muniraj,
Aged about 40 years,
S/o late Pillanna,
Residing at No.29,
A Narayanapura, Lakkappa Road,
Doorvani Nagar Post,
Bangalouru-560 016.
(By Sri V.Lakshmaiah, Advocate )
ORDERS
The petitioner has filed this petition under section 27(2)(r) of
Karnataka Rent Act, 1999 seeking an order of eviction against the
respondent and also to direct the respondent to quit, vacate and deliver the
vacant possession of the B schedule property to the petitioner and to grant
such other reliefs.
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2. Brief facts of the case are as under:-
It is the case of the petitioner that she is the absolute owner of the
house property situated at No.29, khatha No.164, property No.64/1,
B.Narayanapura Village, K.R.Pura Hobli which is more fully described in
the A schedule and the petitioner has acquired the same through registered
sale deed from the respondent on 23.07.2014. It is further contended that
after purchase of the schedule A property the khatha has been changed in
her name.
3. It is further contended that the respondent, at the time of
registration of the schedule A property on 23.7.2014 in favour of the
petitioner, requested her to lease a portion of the schedule A property for
his residential purpose which is described as B schedule property and they
have entered into house lease agreement on the same date on a condition
that the respondent will vacate and hand over the schedule B property
within 6 months and renewable for further period with mutual consent and
the respondent agreed to deposit a sum of Rs.2,50,000/- which will be
refunded to the respondent on the expiry of the lease period of 6 months
and the same will not carry any interest. It is also the case of the petitioner
that the lease period of 6 months was expired on 23.01.2015 and the
petitioner had requested the respondent to vacate the schedule B property as
the same is required for her own use and bonafide requirement, but the
respondent on one pretext or the other, failed to vacate the schedule B
property, hence, the petitioner caused legal notice dated 01.02.2015 and the
SCCH-1 3 HRC 133/2013
respondent instead of complying with the legal notice, had sent a untenable
reply dated 12.02.2015 denying the contents of legal notice. Hence, prays to
allow the petition.
4. In pursuance of this eviction petition, this Court has issued notice
against the respondent and he appeared before the Court and filed written
statement denying the petition averments. He further says the petition filed
by the petitioner under section 27(2)(r) of Karnataka Rent Act ,1999 is not
maintainable. The petitioner has not approached this Court with clean hands
and the documents relied upon by the petitioner are created, fabricated. This
respondent lodged criminal complaints before the jurisdictional Police
against the petitioner which are pending to take cognizance of the offences
of deceiving, cheating, committing fraud and misusing of the original
documents. The petitioner has suppressed certain important communications
exchanged between the petitioner and respondent and they are:
1) On 14-08-2014 respondent intimated the petitioner regarding
cancellation of the sale deed for not disagreeing to the contents and non-
payment of sale consideration.
2) On 23.07.14 cheque drawn on ICICI Bank for Rs.27.00 lakhs was
dishonoured with an endorsement "insufficient funds".
3) On 30.08.2014 reply sent by the petitioner as against the
cancellation letter dated 14.08.2014 sent by the respondent.
4) On 15.09.2014 petitioner failed to meet the Advocate of the
respondent or depute anybody on her behalf.
5) On 6.10.2014 Police complaint was lodged by the petitioner
enclosing 1) sale deed 2) full and final settlement 3) Bank statement.
SCCH-1 4 HRC 133/2013
6) On 05.11.2014 claims and counter claims and lodging of
complaints before Mahadevapura Police.
7) On 06.10.2014 statement was given before the Police by the
accused/respondent.
8) On 08.10.2014 complaint was lodged by the respondent.
9) On 05.11.2014 complaint was lodged for the II time by the
respondent for the reported threats and abuse requesting to register and
file FIR on the accused.
5. The correspondence between the parties with reference to the
aforementioned communications are the prima facie materials
substantiating that there is a dispute in respect of the transactions and
bouncing of cheque and not paying the sale consideration, criminal
conspiracy and cheating the respondent.
6. It is further contended that the respondent's counsel had called
upon the petitioner to furnish the documents claimed to have executed by
the respondent but the petitioner failed to so , hence, it is crystal clear that
the documents are created, fabricated. The petitioner has filed this
petition with an oblique motive to grab the property from the innocent for
throw away price. The respondent denied the fact that he is a lessee and
the petitioner is the lessor and at any point of time, he has executed the
lease deed dated 23.07.2014. It is contended that the petitioner is not the
absolute owner of the schedule property and the documents relied upon
by the petitioner are false, frivolous and concocted. The petitioner, her
husband and their relative Mr.Ganeshan the middleman have
misrepresented and committed illegalities and fraud behind the back of
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this respondent and got the signatures on the document and blank sheet,
blank stamp papers under the pretext of agreement of sale and retained
the titles of the property as collateral purpose and thus cheated the
respondent. The petitioner did not pay even Re.1/- towards consideration
of sale on 23.07.2014 and to prove the same, this respondent has
produced the cheque for Rs.27,00,000/- which is issued in favour of the
respondent as a part of sale consideration and the same got bounced and
these facts are under dispute. The petitioner claims that she is the
absolute owner of the premises is her presumption and assumption as the
sale deed under dispute, cheque got bounced, mere securing and
possessing of E.C., tax paid receipt, khatha certificate will not confer any
rights or titles unless the suit property is transferred in accordance with
the law under the Transfer of Property Act. The document produced by
the petitioner like lease deed is not executed by the respondent and there
is no relationship of lessee and lessor and there is no iota of truth that this
respondent had deposited an amount of Rs.2,50,000/- and entered into
lease agreement for a period of 6 months. This respondent had clearly
informed in his letter dated 14.08.2014 that the sale deed is cancelled in
view of cheating and not paying sale consideration and bouncing of the
cheque issued in respect of sale consideration. The rent claimed by the
petitioner is Rs.12,000/- p.m., in her legal notice and on this ground, the
petition is not maintainable. Hence, prays to dismiss the petition.
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7. On 12.08.2015, the respondent has filed an interlocutory
application under Section 43 of the Karnataka Rent Act, 1999,
contending that the petition is not maintainable and hence, the same has
to be rejected/dismissed by imposing cost and in the affidavit filed in
support of the same, the respondent has sworn to the effect that the
respondent has not executed any document of lease or rental deed dated
23.07.2014 by depositing Rs.2,50,000/- with the petitioner or with her
husband and the same is an ulterior lie and the said document is
created/fabricated for the purpose of filing HRC petition and the
petitioner failed to mention the plinth area of the building and the total
constructed area of the building is 8 squares which is in the custody and
enjoyment of the respondent and the rent claimed by petitioner in the quit
notice is Rs.12,000/-. It is further sworn to the effect that the petitioner is
claiming right through disputed titles and thereby there is no question of
conveying and handing over the property as required under the T.P.Act
and as the respondent has not executed the lease or rental deed in favour
of the petitioner and the dispute between the parties being a civil dispute
to be decided by a competent civil court, this Court has not jurisdiction
and hence, sought to reject the petition.
8. On 18.08.2015, the petitioner has filed statement of objections to
the above said interlocutory application, contending that the said
interlocutory application is not maintainable either under law or on facts
and further contended that the averment that the respondent has not
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executed any document of lease dated 23.07.2014 by depositing a sum of
Rs.2,50,000/- is false, since the original Lease Deed is produced before
the Court and marked as Ex.P.5.. The averments in para 2 of the
application are false and far from truth, at least agreed that he had
received cheque for Rs.27,000/- dated 23.07.2014 and if at all the
respondent is aggrieved in not honouring the cheque by the petitioner, he
was at liberty to file cheque bounce case against the petitioner and he had
not done so. The averments in para 4 of the affidavit are also false and
far from truth and the respondent failed to understand that the moment he
had executed the sale deed in favour of the petitioner and registered in the
concerned Sub Registrar Office, the schedule property will be transferred
to the purchaser immediately and to this effect, there is recital in the sale
deed and hence, prayed to reject the above application.
9. On 18.08.2015, it was ordered that the interlocutory application
under Section 43 of the Act filed by the respondent will be considered
along with merits.
10. The petitioner in order to prove her case, she examined herself
as PW1 and examined three witnesses as PW-2 to 4 and got marked the
documents Ex.P.1 to 15. On the other hand, the respondent is examined
as RW1 and one witness is also examined as RW-2 and they have got
marked the documents Ex.R.1 to 9.
11. After closure of the evidence, I have heard the arguments of
petitioner's Counsel. The respondent's Counsel took time and addressed
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his argument on the matter, with the permission of the Court, after it has
been taken as nor arguments of the respondent.
12. After having heard the arguments of petitioner Counsel, the
following points arise for my consideration:
1) Whether the respondent has made out grounds to allow the
application filed under Section 43 of the Karnataka Rent Act,
1999?
2) Whether the petitioner proves that there exists jural relationship
of landlady and tenant with respect to the petition schedule
premises?
3) Whether the petitioner has made out grounds to invoke Section
27(2)(r) of Karnataka Rent Act 1999 ?
4) What order?
13. My answer to the above points are as under:-
Point No.1 .. In the negative,
Point No.2 .. In the affirmative
Point No.3 .. In the affirmative,
Point No.4 .. As per final order, for the following:-
REASONS
14. Point No.1 and 2:- Both these points are taken up together for
discussion, as the both the points are interconnected to each other and the
evidence is likely to overlap
15. The petitioner's case is that she being the absolute owner of A
schedule property, having acquired the same through registered sale deed
from the respondent on 23.7.2014, let out portion of the schedule A
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property for his residential purpose which is described as B schedule
property and in this regard, they have entered into house lease agreement
on the same date on a condition that the respondent will vacate and hand
over the schedule B property within 6 months and renewable for further
period with mutual consent and the respondent agreed to deposit a sum of
Rs.2,50,000/- which will be refunded to the respondent on the expiry of the
lease period of 6 months and the same will not carry any interest and thus, it
is contended that the petitioner being the owner and the respondent being
the lessee, there exists jural relationship of landlady and tenant with respect
to the petition schedule premises.
16. The respondent, in the statement of objections, has denied the fact
that he is a lessee and the petitioner is the lessor, nor at any point of time, he
has not executed the lease deed dated 23.07.2014 and the petitioner is not the
absolute owner of the schedule property and the documents relied upon by
the petitioner are false, frivolous and concocted documents and the
petitioner, her husband and their relative Mr.Ganeshan the middleman have
misrepresented and committed illegalities and fraud behind the back of this
respondent and got the signatures on the document and blank sheet, blank
stamp papers under the pretext of agreement of sale and retained the title
deeds of the property as collateral purpose and thus cheated the respondent.
The claim of the petitioner that she is the absolute owner of the premises is
her presumption and assumption as the sale deed is under dispute and mere
securing and possessing of E.C., tax paid receipt, khatha certificate will not
SCCH-1 10 HRC 133/2013
confer any rights or titles unless the suit property is transferred in
accordance with the law under the Transfer of Property Act.
17. In order to prove the existence of jural relationship, the petitioner
got examined herself as PW 1, reiterating the contentions taken in the
petition. Apart from her oral evidence, she has also got marked (subject to
objection) the certified copy of the Sale Deed as Ex.P.1, Receipt as Ex.P.2,
B Register Extract as Ex.P.3, Encumbrance Certificate as Ex.P.4, Lease
Agreement is marked subject to objection as Ex.P.5. Legal Notice and reply
to the same as Ex.P.5 and 7.
18. The petitioner has been cross-examined by the counsel for the
respondent. In her cross-examination, it is elicited that she is a BE
graduate and that she is not working and her husband is working and that
they are presently staying in a rented house. She says that the respondent
himself contacted them that the property is for sale and when they
contacted him, he said he was in need of money and they have arranged
the money and given the money within 2 days. He further told that if they
failed to arrange the money immediately, he is going to hang himself
since he indebted to creditors. It is elicited from her that the sale deed
stands in her name and hence, she is claiming that she is the absolute
owner of the premises. She says that the respondent was the erstwhile
owner of the petition schedule premises and they have paid the
consideration of Rs.43,30,000/- and made the payment of Rs.27,00,000/-
by way of cheque but he again came and approached her to pay the
SCCH-1 11 HRC 133/2013
amount in cash and he was in need of the money and hence they made the
payment by way of cash but, the respondent did not return the said
cheque. It is elicited from her that The respondent wanted to continue in
the premises as a lease holder and hence an amount of Rs.2,50,000/- as
lease amount was withheld and the same was payable on vacating the
premises by the respondent. It is elicited from her that the respondent has
insisted them to pay the amount in cash and hence they made the payment
through cash and he did not return the cheque. She volunteers that the
respondent has not filed any cheque bounce case and the cheque belongs
to my husband. It is elicited from her that the original sale deed is given
to the bank as they have obtained housing loan from the bank.
19. It is elicited from her that the lease agreement was prepared by
the deed writer and the lease agreement was executed on the date of the
registration. She says that she is not aware of the document Ex.P.5 is on
insufficient stamp paper. It is suggested to her that the respondent has not
signed the Ex.P.5 and the said suggestion has been denied by her.
However, she says that she does not know whether he has signed on the
each page or not. It is suggested to her that, the document Ex.P.5 was not
executed on that day and that signature on Ex.P.5 is not the signature of
the respondent and the same was forged and the said suggestions have
been denied by her. She says that she does not why the original Lease
Agreement is with us. She says that the respondent continued as tenant
after the execution of the sale deed in terms of Ex.P.5. It is suggested to
SCCH-1 12 HRC 133/2013
her that, the present petition is filed only to grab the property of the
respondent and the said suggestion has been denied by her.
20. A question was put to her that the present petition is filed only
to take the possession of that premises, to which she replied that they
have paid the sale consideration and hence, they are entitled for
possession. It is elicited from her that the sale deed was executed by
Muniraju, his wife and children.
21. In her further cross-examination, it is elicited from her that the
lease deed was executed between her and Muniraju and the lease
agreement was entered in respect of the petition schedule premises. She
says that she is not aware of the boundaries and the Lease Agreement is
entered in respect of property No. 64/1 and the period of lease is 6
months from 23rd August and the the terms and conditions of the
agreement is that he has to vacate after 6 months and there is no any rent
for the period of 6 months and they have withheld an amount of
Rs.2,50,000/- out of the sale consideration. She says that the amount of
Rs.2,50,000/- withholding out of the sale consideration is not mentioned
in the sale deed and the document is registered in the office of the Sub-
Register. It is elicited from her that the insufficient stamp duty is paid 3
months ago. It is suggested to her that she is not the absolute owner and
the said suggestion has been denied by her. She admits that she has
signed the Ex.P.5. Further, it is elicited from her that there are tenants in
the premises other than the respondent and the meaning of Clause No.7 is
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that the respondent has to enjoy the premises during the period of lease
and the meaning of Clause No.9 is that either party has to give 3 months
notice. She admits that the respondent has signed Ex.P.5 only in last page
and not in all the pages and that in terms of sale deed an amount of
Rs.43,30,000/- has been paid. It is suggested to her that instead of
preparing the document as mortgage deed they have obtained the sale
deed by deceiving the respondent and the said suggestion has been denied
by her. It is suggested to her that they being the educated and the
respondent being an uneducated, obtained the signature of the respondent
in the blank stamp paper and used those signatures and obtained the sale
deed fraudulently and the said suggestion has been denied by her.
22. The petitioner, in support of her case, has also examined a witness
to Lease Deed Ex.P.5 as PW.2. In his evidence, PW says that Ex.P.5 has
been executed by the respondent in favour of the Petitioner and it bears the
signature of the Petitioner and the respondent He says that Ex.P.5 was
executed on the same day of the registration and he is also witness to the
document and it bears his signature which is marked as Ex.5 (a). He says
that one more witness Ramamurthy has also signed the document and the
document was prepared by one Shankar Singh.
23. He has been cross-examined by the Counsel for the respondent,
in which, he says that he is the neighbourer of the respondent and the
Petitioner is his relative and his daughter was given to the brother of the
petitioner's husband. He says that he knew only about the lease and not
SCCH-1 14 HRC 133/2013
aware of other transaction. He further says that the Petitioner and her
husband called him to sign the lease document at around 9 to 10 a.m on
23/7/2014 and he went to Sub-Registrar's Office at around 2'O clock and
at that time, he found the deed writer Shankar Singh and also the
Petitioner and her husband and Muniraju and his wife and the sale deed
was already executed and the petitioner's husband called him to Sub-
Registrar's Office and in his presence, cash transaction was not taken
place and read the contents of the lease deed and the lease deed was for a
period of 6 months and in terms of lease, the respondent agreed to vacate
within 6 months and there was a reference in the document about
Rs.2,50,000/- and in his presence, no transaction was taken place with
regard to the amount of Rs.2,50,000/-. It is suggested to him that he is
aware of all the transaction between the petitioner and the respondent and
he only informed the Petitioner about the said property is for sale. He
volunteers that the respondent was telling the same in the locality also to
the brokers 6 months earlier to the transaction. It is suggested to him that
he did go to Sub-Register office and not signed the documents in office of
Sub-Register and my signature was taken afterwards and the said
suggestion has been denied by him.
24. The petitioner has also examined another witness to Ex.P.5 as
PW 3 and in his evidence, PW 3 has reiterated about the Lease
Agreement entered into between the petitioner and the respondent in
respect of the schedule premises. In his cross-examination by the counsel
SCCH-1 15 HRC 133/2013
for the respondent, he identifies his signature in Ex.P.5, which is marked
as Ex.P.5(b) and he says that he was asked to sign the document with
name and he has done the same. He says that the said document is a
Lease Agreement and is executed infavour of Muniraju to stay in the
house of Santhoshmi, though he says that he does not know on what
capacity the Muniraju is there in the said house and he signed the said
document in the office of the Registrar at around 1.30 p.m. He says that
he is also a witness to the sale agreement and he signed both the
document in a gap of 10 minutes. It is suggested to him that he did not go
to Sub-Registrar office and the said suggestion has been denied by him.
He says that while signing the document Ex.P.5, Muniraju and his wife
were also there and Muniraju has signed the document, he has signed the
Lease Agreement and the witness has identified the signature of Muniraju
in the Ex.P.5. It is suggested to him that the signature available in Ex.P.1
and the Ex.P.5 are the signatures of Muniraju are not similar and the said
suggestion has been denied by him. It is suggested to him that
Santhoshmi and Ganesh have obtained his signature after 6 months of the
lease deed and the said suggestion has been denied by him.
25. The petitioner has examined the Scribe of Ex.P.5 as PW 4 and in
his evidence, PW 5 says that he is working as document writer at
Mahadevapura Sub-registrar's Office since 5 years and he has prepared the
document Ex.P.1 and also prepared the Lease Agreement which is marked as
Ex.P.5 and he has attested his signature to Ex.P.1 as scribe. He further says
SCCH-1 16 HRC 133/2013
that the parties i.e the vendor and the purchaser have signed the document in
the Sub-registrar office in his presence. Witness identifies the signatures of
the vendor and the purchaser. He says that the signature available in Ex.P.5
is belongs to Muniraju as lessee and another signature belongs to
Santhoshmi/Petitioner as lesser. He says that the parties have also agreed to
prepare the sale deed and the sale deed was in the name of Muniraju and the
other vendors are wife and children of Muniraju. He says that he is a
licenced document writer and his licence number is also mentioned in the
documents and further says that Ganesh and Ramamurthy have also signed
as witnesses to Ex.P.5 and Ganesh came and got typed the document Ex.P.5.
26. PW 4 has been cross-examined by the Counsel for the
respondent, wherein, he says that he is a document writer since 2012 and
he has taken the license and he has not produced the license before the
court. He says that he has prepared Ex.P.1 and while preparing the said
document, he was furnished with the original sale deed , katha extract and
also the payment details and Muniraju and Ganesh came and furnished
the said documents to prepare the document in the name of Santhoshmi
on the date of the transaction. He further says that he has prepared the
document in his office which is situated at Mahadevapura and he half an
hour to one hour to prepare the document and he went along with them to
present the document for registration and he obtained the signatures and
presented the documents in the Sub-Registrar office. He says that he
has mentioned how the Muniraju has got the right in respect of the
SCCH-1 17 HRC 133/2013
property and also the payment details. He says that in terms of the sale
deed, the possession has been handed over to the buyer and they have not
given any information regarding the tenancy and he has mentioned the
description based on the sale deed. He says that the witnesses came to
Sub-Registrar office and the vendors, purchaser and witnesses all were
present at the time of signing the documents and before getting the final
print, he gave the draft and they have read the contents and after their
approval only then, he has taken the print out. It is suggested to him that
he has not explained the contents of the documents and after removing
the print the same was presented in the Sub-Registrar office and the said
suggestion has been denied by him. He says that the document was
registered before the lunch.
27. It is elicited from him that he has prepared the Ex.P.5 and the
said Ganesh has given the instructions to prepare the Ex.P.5. He says that
he has prepared the document based on the standard format and prepared
the said document based on the instructions. It is suggested to him that he
has prepared the said document on his own without any instructions and
the said suggestion has been denied by him. He says that is a lease
document and the rent means on monthly rent and lease means for a
certain period with refundable deposit and he does not know the period.
The witness verified the document and says it is for a period of 6 months
and the lease commences from 23/7/2014. He says that he has prepared
the document, but he does not know whether they have paid the said
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amount or not. He says that the witnesses have not attested the
document in my presence. He further says that he does not remember
whether this document was prepared on the date of execution of sale
deed. It is suggested to him that the petitioners have approached him
when the respondent has not vacated the premises and they have
explained their difficulties with him and hence he has prepared the said
document and the said suggestion has been denied by him. He says that
the document is prepared on the Rs.2/- stamp paper and the said stamp
papers having different series. It is suggested to him that he came to
know about the galata taking place between the parties within 2 months
of the execution of the documents and the said suggestion has been
denied by him and he volunteers that Ganesh came and told him that a
case is pending before the Court. He says that no one has given
instructions to give evidence in the above and he told them that he will
not come to Court and only if he gets the summons, then only come and
give evidence.
28. As against the same, the respondent got himself examined as
RW 1 and in the affidavit filed in the form of examination in chief,
reiterated the statement of objection and got marked the affidavit filed
before the Sub Registrar as Ex.R.4, Attested copy of Form No.1 as
Ex.R.5, attested copy of property register as Ex.R.6, attested copy of Will
as Ex.R.7, application filed before the Revenue Officer as Ex.R.8, copy
of application filed by the District Registrar as Ex.R.9.
SCCH-1 19 HRC 133/2013
29. RW 1 has been cross-examined by the Counsel for the
petitioner. It is elicited from him that he has studied upto 10th standard
and he knows little reading and writing English and he is having one and
now, he is staying in the house of his brother. It is elicited from him that
he sold the house of his brother in favour of the petitioner and his brother
has given the power of attorney to execute the documents and he
volunteers that he went to execute the mortgage deed but they got the sale
deed.
30. It is further elicited from him that there are other 2 tenants in
the first floor and one Ganesh has approached him with regard to the
transaction and the witness again says that, he has approached Ganesh for
loan and the said Ganesh in turn told him that he will get the loan from
his relative and he has approached him for the loan of Rs.30,00,000/- and
that he was having loan commitments and also intend to build the house
and hence, he approached him and he did not meet the said relative
Santhoshmi. He further says that the said Ganesh has brought the
husband of Santhoshmi and he has given the documents and transaction
only for the mortgage and not for sale and husband of Santhoshmi also
told him if he intends to sell the property, he is ready to purchase the
same and thereafter the document was prepared in the Sub-registrar
Office and he was called alongwith his wife to execute the document and
hence himself, his wife went and executed the document as Mortgage
deed and the deed was prepared by one Shankar Singh and the said
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Ganesh has given instructions to prepare the document and they gave
cheque for an amount of Rs.27,00,000/- and also told him to collect
balance amount of Rs.3,00,000/- in his house and himself and his wife
signed on the documents in the office of Shankar Singh. The witness was
confronted with Ex.P.1 sale deed and admits the said document. He says
that there was no any recital in the deed as absolute sale on the date of the
execution and the witness read the document and says there is a mention
in the document as absolute sale deed, but says on the date of the
execution it is mentioned as mortgage deed. He says that on that day,
they took his signature on the recital of the document as mortgage deed
and Ex.P.1 bears his signature in all the pages and after signing the
document Ex.P.1, the documents was presented before the Sub-registrar
and photos of mine and my wife were taken and the Sub-registrar did not
ask anything about passing of sale consideration. It is suggested to him
that, the Sub-Registrar asked him whether he has received an amount of
Rs.43,30,000/- and in spite of enquiry by the Sub-Registrar, now he is
falsely deposing before the court that the Sub-Registrar did not enquire
him for passing of sale consideration. The husband of Santhoshmi has
told jom that the value of the house is Rs.43,30,000/- and he is not aware
of the contents of mentioning the sale consideration. He says that the
property was standing in the name of his father and he has executed the
mortgage deed in respect of the property which was in the name of his
father and admits that there is a recital in the Ex.P.1 that the property
SCCH-1 21 HRC 133/2013
came to him through Will from his father. Ex.P.5 was confronted to the
witness and the signature available on the last page was also confronted
and witness says that the signature available in the last page does not
belongs to him. However, he says that the signature available on Ex.P.1
belongs to him. It is suggested to him that, there is a similarity in the
signature available in Ex.P.1 and Ex.P.5 and the said suggestion has been
denied by him.
31. The witness was further cross-examined by the counsel for the
petitioner, wherein, he admits that Site No. 29 stands in his name in
BWSSB but not in BBMP. The witness was confronted with a copy of
full and final settlement document which is produced along with Written
Statement and witness though admits that the document is produced by
him but he denies the signature available in the document of full and final
settlement. It is suggested to him suggest that, for the moment the sale
deed was registered, the possession has been delivered and he has
requested 6 months time and hence the petitioner has executed a rental
agreement on humanitarian ground to continue in the possession for a
period of 6 months and that he did not vacate within 6 months as per the
rental agreement and hence the present petition is filed and the said
suggestion has been denied by him.
32. The respondent, on his behalf, has examined a witness as RW 2
and in his affidavit in the form of examination in chief, says that he is
residing next to suit schedule property and he has deposed about the Will
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executed by the father of the respondent during July'2014 and also about
the complaint lodged by the respondent against the petitioner pertaining
to the alleged sale transaction in respect of the schedule premises. Even
the cross-examination of this witness is much concentrated on the Will
and the sale transaction.
33. In the back ground of the pleadings of the parties as above and the
evidence let in by both sides in support of their case coupled with the
documentary evidence placed on record, the petitioner, on the one hand
contends that the respondent being the erstwhile owner of the schedule
premises, sold the same to her in terms of Ex.P.1 - Registered Sale Deed and
since he requested 6 months time to vacate the schedule premises, a lease
deed came to be executed between the parties as per Ex.P.5 and in spite of
lapse of the said period of 6 months, as the respondent refused to vacate the
premises, having no alternative filed the present petition. It is contended
that execution and registration of both the Sale Deed Ex.P.1 as well as Lease
Deed of the schedule premises has been duly proved by production of the
relevant documents and examination of the witnesses to the said documents,
as laid down under the Karnataka Rent Act, 1999 and therefore, there exists
jural relationship of landlady and tenant between the petitioner and the
respondent with respect to the petition schedule premises.
34. On the other, the respondent's case is that the petitioner, her
husband and PW 2 Ganeshan, by false misrepresentation, making him to
believe their words, got executed a Sale Deed instead of Mortgage Deed and
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therefore, there being no such sale transaction as per law and Ex.P.1 Sale
Deed and Ex.P.5 being non est in the eye of law, there exists no jural
relationship of land lady and tenant and hence, sought to reject the petition
for want of jural relationship.
35. Before going further to analyse the case of the respective parties
in respect thereto, let me extract the provision relation to the same ie.,
Section 43 of the Karnataka Rent Act, 1999 which deals with the dispute of
relationship of landlord and tenant, which reads thus:
"43. Dispute of relationship of landlord and tenant :- (1)
where in any proceeding before the Court, a contention is
raised denying the existence of relationship of landlord and
tenant as between the parties it shall be lawful for the Court
to accept the document of lease or where there is no
document of lease, a receipt of acknowledgement of payment
of rent purported to be signed by the landlord as prima-facie
evidence of relationship and proceed to hear the case."
36. Thus, from a perusal of provision of the Act as extracted above, it
is clear that in any proceeding before the Court, a contention is raised
denying the existence of relationship of landlord and tenant as between the
parties, it shall be lawful for the Court to accept the document of lease or
where there is no document of lease, a receipt of acknowledgement of
payment of rent purported to be signed by the landlord as prima-facie
evidence of relationship and proceed to hear the case. In the case on hand,
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the petitioner has not produced a receipt of acknowledgement of payment of
rent purported to be signed by the tenant as prima-facie evidence of
relationship. However, the petitioner has produced the "House Lease
Agreement" marked as Ex.P.5, which states that the petitioner being the
absolute owner of the schedule premises, let out the same to the respondent,
for a period of 6 months effective from 23.07.2014 and the period of tenancy
is renewable for a further period with mutual consent and the respondent has
deposited Rs.2,50,000/- as refundable deposit, which shall not carry any
interest. On perusal of the third page of the said document, one M.Ganesh
has put his signature as witness No.1 and one Ramamurthy has put his
signature as witness No.2, and both of whom have been examined in this
case as PW 2 and 3 respectively and in their evidence, deposed
corroborating the case of the petitioner as to the induction of the respondent
as tenant of the schedule premises. Added to that, the petitioner has also
examined the Scribe of the said document, though he has not put his
signature on the said document, as PW 4, who has also deposed regarding
the drafting of the said document, although he is not aware as to when the
said document was executed.
37. The respondent's case is that he is not a lessee at any point of time
or executed the lease deed dated 23.07.2014 and if the lease deed exists,
such document is created, fabricated and constructed to establish the lessor
and lessee relationship. Even in his evidence as RW 1, the respondent
reiterates the same. However, in his cross-examination, when House Lease
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Agreement Ex.P.5 was confronted to him, he does not dispute the contents
of the said document, though disputes that the signature available on the last
page as not belonging to him. But, the respondent admits the signature
found on Ex.P.1 - Sale Deed, which is a registered document and disputed
the signature available on Ex.P.5. The signatures found on Ex.P.1 Sale
Deed, admitted document, Vakalath and Ex.P.5, which is disputed by
respondent, they appear to be identical and same and the same can be
compared by the Court, exercising the power conferred under Section 73 of
the Indian Evidence Act.
38. It is seen from the pleadings of the respondent, not only in the
statement of objections, but also in his evidence as RW 1, he has raised
several contentions namely, the petitioner, her husband and their relative
Ganeshan, the middleman, have misrepresented and committed illegalities
and played fraud behind the back of the respondent and got the signatures on
the documents/blank sheets and blank stamp papers under the pretext of an
agreement of sale and retained the titles of the property as collateral purpose
and thus cheated the defendant. But, having regard to the fact that at one
breath the petitioner claims that the property belongs his brother and in
another breath, he says that he got the property through Will executed by his
father and further, in the petition, the petitioner is stated to be an illiterate,
but in his cross-examination, the respondents admits that he has studied upto
10th standard and know little reading and writing English and further, the
respondent categorically admits that the husband of Santhoshmi also told
SCCH-1 26 HRC 133/2013
him that if he intends to sell the property, he is ready to purchase the same
and thereafter the document was prepared in the Sub Registrar Office and he
was called along with his wife to execute the document and hence, himself
and his wife went and executed the document and the document was
prepared by one Shankar Singh and since, there are lots of discrepancies and
contradictions with regard to the execution of the sale deed and the passing
of consideration and since, the said aspect does not fall within the ambit of
this Court and the scope of Rent Court being very limited, it has to be stated
here very specifically that this proceedings is under the provisions of the
Karnataka Rent Act, 1999, in which, title of the parties cannot be decided.
Suffice it to say that the scope of the petition being very limited, it is enough
if the party claiming to be the landlord prima facie establish the same, then
the Court can accept the same. The contention of the respondent that the
sale consideration has not been paid and it is only a mortgage transaction
cannot be decided in this case. Admittedly, the respondent filed a civil case
and the same is pending and the remedy is elsewhere.
39. The respondent has raised objections as to the maintainability of
the petition on two more grounds.
40. It is contended that in Ex.P.6 - notice at para 4, the petitioner has
claimed the rent of the schedule premises at the rate of Rs.12,000/-. It has
to be stated here that the said notice was issued to respondent calling upon
him to quit, vacate and delivery vacant possession of the schedule premises
to the petitioner within 15 days of receipt of notice and in case, the
SCCH-1 27 HRC 133/2013
respondent fails to do so, then the respondent shall be liable to pay monthly
rent of Rs.12,000/- per month, till he vacates the premises and that, it is clear
that if the respondent fails to vacate the premises within time prescribed in
the notice, then only he is liable to pay rent at the rate of Rs.12,000/- and as
per Ex.P.5 House Lease Agreement, no rent was fixed, since the respondent
has paid an amount of Rs.2,50,000/- as refundable deposit, which shall not
carry any interest. Hence, under such circumstances, during the subsistence
the tenancy, no rent was fixed and the respondent was called upon to pay
rent, if he fails to vacate the premises. The Hon'ble High Court in the
judgment reported in 2000 (4) Kar.L.J. 55 (Amarnath K., Vs.
Smt.Puttamma) held that even though rent has not been paid, the lease
amount itself is a rent and instead of rent, the lease amount is paid and the
document Ex.P.5 confirms the payment of Rs.2,50,000/- and it has emerged
in the evidence that out of the sale consideration, an amount of Rs.2,50,000/-
was adjusted towards lease amount and question of payment of Rs.12,000/-
rent does not arise and the amount of Rs.2,50,000/- is lying with the
petitioner. It is also settled law that this Court cannot award any damages in
Karnataka Rent Act proceedings. Accordingly, the said objection of the
respondent is rejected.
41. Another objection of the respondent is that the petitioner has failed
to mention the measurement of the B schedule premises and the A schedule
premises measures more than 1200 square feet and therefore, the petition is
not maintainable. This objection raised by the respondent also holds no
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water, since as per Section 2(3)(g) of the Karnataka Rent Act, 1999,
restriction of the measurement applies to only non-residential premises and
not residential premises and admittedly, the schedule B premises being
residential one, the Act being not applicable to the schedule premises, the
petition is maintainable.
42. As stated above, the petitioner by producing Ex.P.5 and examining
witnesses to the contents and scribe of the said document as Ex.P.2 to 4, has
discharged her burden that she being the land lady of the schedule premises,
inducted the respondent as tenant of the same as per Ex.P.5 and thereby,
there exists jural relationship of landlady and tenant with respect to the
schedule premises. Hence, the respondent has miserably failed to prove that
the petition is not maintainable before this Court. Hence, I answer point
No.1 in the negative and point No.2 in the affirmative holding that the
petitioner has successfully establish that she being landlady and the
respondent being the tenant, there exists jural relationship between them.
39. Point No.2 :- Both in para No. 6 and 7 of the petition and in
para 5 of the affidavit in the form of examination in chief, the petitioner
has stated that the schedule B property is required for her bona fide
requirement, use and occupation and she demanded the respondent to
quit, vacate and deliver the same, but the respondent did not quit, vacate
and deliver the possession of the same, which is causing her great
hardship, irreparable loss and injury.
SCCH-1 29 HRC 133/2013
40. It has to be stated here that the respondent while stoutly
denying the title of the petitioner over the schedule property and jural
relationship, has considerably failed to put up a case disputing the
requirement of the petition schedule premises by the petitioner. Not even
a single suggestion is put to PW 1 disputing the requirement of the
schedule premises by the petitioner and thereby, there is no any rebuttal
evidence from the side of the respondent denying the bonafide
requirement of the petitioner and further nothing is elicited from the
mouth of PW 1 that the requirement is not bona fide. Hence, the Court
can presume that the requirement of the petitioner is bonafide. It is also
not the case of the respondent that the petitioner is having any other
alternative premises and under the Karnataka Rent Act, 1999, two things
have to be proved by the petitioner ie., bonafide requirement and that he
has not other alternative premises and here both the circumstances are
proved by the petitioner by adducing evidence and the same has not been
rebutted by the respondent and in the absence of rebuttal evidence, I am
of the opinion that the petitioner has proved here bonafide requirement of
the schedule premises and hence, I answer point No. 2 in the affirmative.
41. Regarding granting of time is concerned this enactment was
brought into force with an intention to dispose off the case as early as
possible and also the very proviso of section 42 (7) mandates the Court
that every application made to the Court shall be heard as expeditiously
as possible and endeavour shall be made to conclude the hearing and to
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dispose off the application within six months of it being filed. In view of
this mandate given to the Court to dispose of the matter within 6 months,
it is clear that the relief is to be given within the stipulated time.
Considering the said proviso, the Court has to grant the just and
reasonable time to vacate the premises and when the time is fixed for 6
months for disposal of the application and the word is used that Court
shall be heard as expeditiously as possible and endeavour shall be made
to conclude and dispose off the application within 6 months and granting
of 3 months would be reasonable , since this case is filed on 06.04.2015
and already 19 months have lapsed and the matter is not disposed off
within six months as stipulated under section 42(7) of the Act.
42. Point No.3: In view of the discussions made above, I proceed
to pass the following:-
ORDER
The petition filed by the petitioner under Section 27(2)(r) of Karnataka Rent Act, 1999 is hereby allowed.
The respondent is hereby directed to quit, vacate and deliver vacant possession of the petition schedule premises to the petitioner within three (3) months time from the date of this order.
Application filed by the respondent under Section 43 of the Karnataka Rent Act, 1999 is rejected.
Under the facts and circumstances of the case, there is no order as to costs.
Draw decree accordingly.
SCCH-1 31 HRC 133/2013(Dictated to the Judgment writer, directly on computer, corrected & then pronounced by me in Open Court on this the 20th day of September'2016) (H.P.SANDESH) Chief Judge, Court of Small Causes, Bangalore.
"A" SCHEDULE All that piece and parcel of the property-bearing site No.29, Katha No.164, property No.64/1, situated at B.Narayanapura village, Krishnarajapura Hobli, Bangalore East Taluk, Bangalore, now comes under Bruhat Bangalore Mahanagara Palike Limits, Bangalore , measuring East to west : 40 feet and North to South : 30 feet in all measuring 1200 sq.ft, along with ground floor and first floors RCC roofed building and bounded on:
East by : Site No.33 West by : 15 feet Road, North by : Site NO.28 South by : Site No.30 belongs to P.Muniraj vendor herein "B" SCHEDULE All that piece and parcel of the premises in Ground floor , situated at site NO.29, Katha No.164, property No.64/1, situated at B.Narayanapura village, Krishnarajapura Hobli, Bangalore East Taluk, Bangalore, now comes under Bruhat Bangalore Mahanagara Palike Limits, Bangalore , consists one hall, one kitchen, two bed room attached bath room with electrical fittings and civil amenities.SCCH-1 32 HRC 133/2013
ANNEXURES LIST OF WITNESSES EXAMINED FOR THE PETITIONER : PW-1 : D.Santhoshmi PW-2 : Ganesh P.W.3 : Rama Murthy P.W.4 : Shankar Singh LIST OF WITNESSES EXAMINED FOR THE RESPONDENT : RW-1 : P.Muniraj RW-2 : P.Babu Reddy LIST OF DOCUMENTS EXHIBITED FOR THE PETITIONER:
Ex.P-1 : Certified copy of sale deed (subject to objection) Ex.P-2 : Receipt Ex.P-3 : B register extract Ex.P-4 : Encumbrance certificate Ex.P-5 : Lease agreement (subject to objection) Ex.P-6 : Copy of legal notice Ex.P.7 : Reply Ex.P.8 : Acknowledgement for the year 2015-16 Ex.P.9 : Tax paid receipt Ex.P.10 : Copy of receipt Ex.P.11 : Acknowledgement Ex.P.12 : Copy of cheque Ex.P.13 : Receipt Ex.P.14 : Application
Ex.P.15 : Letter dated 14.8.2014 LIST OF DOCUMENTS EXHIBITED FOR THE RESPONDENT:
Ex.R-1 : Reply dated 30.8.2014
Ex.R-2 : Notice dated 15.9.2014
Ex.R-3 : Copy of complaint
Ex.R.4 : Attested copy of affidavit filed before the Sub-Registrar
Ex.R.5 : Attested copy of Form NO.1
Ex.R.6 : Attested copy of property Registrar
SCCH-1 33 HRC 133/2013
Ex.P.7 : Attested copy of Will
Ex.R.8 : Application filed before the Revenue Officer Ex.R.9 : Copy of the application filed before the District Registrar (H.P.SANDESH) Chief Judge, Court of Small Causes, Bangalore.