Bangalore District Court
Mohammed Ashfaq Hussain vs Mr. Shamshudeen Hajee on 22 January, 2016
C.R.P. 67] Government of Karnataka
TITLE SHEET FOR JUDGEMENTS IN SUITS
IN THE COURT OF THE SMALL CAUSES AT BANGALORE
PRESENT: Basavaraj Chengti., B.Com.,LL.B.,(spl)
XVI ADDL. JUDGE,
Court of Small Causes,
BANGALORE.
Dated this the 22nd day of January 2016.
S.C.No.735/2014
Plaintiff/s : 1.Mohammed Ashfaq Hussain
S/o G.M.Hussian,
2. Mohammed Mustaq,
3. Mohammed Ayaz
S/o G.M.Hussain,
V/s All are residing at No.226,
4th floor Ameena Apartments,
Opp; To Kalasipalya Bus Stand,
A.V.Road, Bangalore-560002.
(By pleader Sri DRS)
Defendant/s 1.MR. Shamshudeen Hajee,
S/o N.Ismail Hajee,
Aged about 58 years,
R/at No.4 Risaldar Street,
Sheshadripuram,
Bangalore-20.
2. Sagai Raj,
S/o Susai Raj,
Aged 42 years,
R/at No.15, BDG Lane Ranasinghpet,
Bangalore-05.
(D1-By pleader Sri SE)
(D2-By pleader Sri BVM)
SCCH-14 2 SC No.735/2014
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 : 03.09.2015
Date on which the judgment was : 22.01.2016
Pronounced
Total duration Year/s Month/s Days
01 07 03
XVI ADDL.JUDGE,
Court of Small Causes,
BANGALORE.
SCCH-14 3 SC No.735/2014
JUDGEMENT
This is a small cause suit for ejectment of the defendants from the schedule property.
2. Brief averments of the plaint are as under:
The shop premises No.13 and other premises were originally belonging to the mother of the plaintiffs by name Smt.Ameenabi who died in 2005. She had leased the portion of property No.13 for commercial purpose described in the schedule measuring 10'X37' to the defendant No.1 Shamshuddin Haji on a monthly rent which was increased from time to time and present monthly rent is Rs.7,000/-. The defendant No.1 after some time, has sub leased the said property to the defendant No.2 on daily rent of Rs.450/- without authority, unlawfully and without the permission of the plaintiffs and getting huge rent and the defendants have colluded together to cause loss to the plaintiffs. The defendant No.2 filed caveat petition before the court contending that he is the owner of the property though he is sub- lessee carrying commercial activity. The defendants have no right, title or interest in the schedule property and misusing the power and authority of lease to cause hardship and injury to the plaintiffs. The plaintiffs have lodged complaint before the City Market Police who caused notice of appearance to the defendants. During enquiry, the defendant No.2 has produced rent note maintained and issued by the defendant No.1. The rent is due from January 2014. No notice is required unless the status is accepted. The defendants have claimed title in themselves. The defendant No.1 upon demand to vacant possession, has given memorandum of undertaking. Hence, the plaintiffs have filed this suit for ejectment of defendants and sought for directing them to quit, vacate and deliver vacant possession of the schedule property in their favour.SCCH-14 4 SC No.735/2014
3. In pursuance of the summons, the defendants have appeared before the court through their respective counsel. The defendant No.2 has filed his written statement, whereas the defendant No.1 has not filed his written statement. The defendant No.2 has denied the averments of the plaint as false and contended that the suit of the plaintiffs is not maintainable either in law or on facts, that the plaintiffs have not approached the court with clean hands and have suppressed material facts, that the suit is filed on imaginary grounds and the plaintiffs are not having any right , title or interest over the schedule property, that there is no jural relationship of tenant and landlords between him and the plaintiffs. He has stating the at during her lifetime, the said Ameenabi being absolute owner of the schedule property, has agreed to sale the schedule property in his favour and he has paid entire sale consideration amount to the said Ameenabi who executed a sale agreement in his favour by putting him in possession of schedule property and ever since, he is in possession and enjoyment of the schedule premises, that the said Ameenabi took the original sale agreement by assuring to execute sale deed, but she has failed to do so and died without executing the sale deed and now the plaintiffs by taking undue advantage of he same, have come with this false statement, that the plaintiffs have colluded with the defendant No.1 and have filed the false suit to escape from executing sale deed in his favour, that since, the plaintiffs are not the owners, he is not liable to pay rent to them, that they were no cause of action to file the suit. Hence, he has sought for dismissal of the suit with exemplary cost.
4. During the evidence, the plaintiffs have examined the plaintiff No.1 as PW.1 and got marked documents as Ex.P1 to P6. The defendant No.1 has not produced any evidence, whereas the defendant No.2 has examined himself as DW.1. He has not produced any documents on his behalf.
SCCH-14 5 SC No.735/20145. Heard the arguments and perused the records.
6. Now, the points that arise for my consideration are:
1. Whether the plaintiffs have proved the existence of jural relationship of landlords and tenants between them and the defendants in respect of schedule premises?
2. Whether the plaintiff has proved that the tenancy of the defendants is duly terminated?
3. Whether the plaintiff is entitled for the relief sought for?
4. What order or decree?
7. My answer to the above points are as follows:
Point No.1 to 3 : In Affirmative.
Point No.4 : As per final order for the following:
REASONS
8. POINT NO.1 to 3: These points are interlinked and hence, I have taken them together for common discussion.
The defendant No.1 has no defence and the defendant No.2 has denied jural relationship of tenant and landlords between him and the plaintiffs. He has specifically contended that Smt.Ameenabi has agreed to sell the schedule property in his favour and she has executed sale agreement by receiving entire sale consideration amount from him and put him in possession of the schedule property. In other words, the defendant No.2 is claiming to be in possession of the schedule property as prospective purchaser and not as tenant. The plaintiffs have asserted that the schedule property was originally belonging to Smt.Ameenabi who has leased the same in favour of the defendant No.1 on monthly rent which was enhanced from time to time and SCCH-14 6 SC No.735/2014 last rent was Rs.7,000/- pm., that the defendant No.1 has sub leased the schedule property in favour of the defendant No.2 on a rent of Rs.450/- per day without authority, unlawfully and without their permission.
9. PW-1 Mohammed Ashfaq is the plaintiff No.1 and he has deposed as per the averments of the plaint. He has denied the suggestions given to him in cross-examination by the counsel for the defendant No.2 regarding title and nature of possession of the defendant No.2 as false. The defendant No.2 has taken up a specific defence during cross-examination of PW-1 that one Kannan was the tenant in the schedule property under one Lathif since 2004, that the said Lathif has entered into agreement of sale with Lathif regarding sale of schedule property in the year 2007, that he is in possession of the schedule property as son-in-law of Kannan who died in the year 2008. The defence of the defendant No.2 regarding sale agreement between Lathif and Kannan in respect of schedule property is contradictory to his specific defence taken the written statement. Evidence shall be in consonance with the pleadings. Variation between pleading and proof is fatal to the defence of the defendant. Though, the defendant has taken up a defence that one Kannan was the tenant under Lathif and there was an agreement of sale between them regarding schedule property, that the Kannan was in possession of the schedule property as prospective purchaser and not as tenant, that he is possession of the schedule property as LRs of Kannan, but he goes against his own defence while he was under cross-examination.
10. DW-1 Sagai Raj is the defendant No.2 and he has deposed as per the averments of his written statement. But, there is no corroboration to his evidence as to agreement between Kannan and Lathif or between himself and Smt.Ameenabi. He tried to produce agreement and affidavit pertaining to property bearing No.23/11, 22/12 situated at K.R.Market, Sethurao street, SCCH-14 7 SC No.735/2014 Bangalore, during trial, but his IAs came to be dismissed holding that the said documents are not relevant to the property under dispute. The defendant ought to have produced the agreement between him and Smt.Ameenabi to prove his defence taken in written statement. He should have produced the agreement between Kannan and Lathif to prove his defence taken up during cross-examination of PW-1. Non production of said documents reveals that both defence of the defendant are false apart from being contradictory to each other.
11. The counsel for the defendant No.2 has argued that names of the plaintiffs do not tally with the names mentioned in gift deed, that the plaintiffs are not the persons named in Khata extract, that there is no evidence to believe that the plaintiffs are the LRs of Smt.Ameenabi, that there is no lease agreement between the plaintiffs and defendants, that no rent receipt is produced by the plaintiffs to prove the jural relationship. Hence, he has sought for dismissal of the suit with cost.
12. PW-1 Mohammed Ashfaq has deposed that he and other plaintiffs are the owner of the schedule property. He has stated in cross-examination as under;
"It is false to suggest that we have not shown in plaint and in my affidavit as to how we got the suit schedule property. It is false to suggest that the names shown in Khatha certificate don't tally with the names shown in gift deed. It is false to suggest that we have got the Khatha in our name in 2013-14. It is true to suggest that we have obtained Ex.P5 from the defendant no.1 on 21.02.2014. It is false to suggest that we have not produced any rent agreement or lease agreement before the court. It is true to suggest that we have not SCCH-14 8 SC No.735/2014 produced any document evidencing the payment of rent by the defendants. It is false to suggest that we have not produced any document to show that we are the legal heirs of Ameena Begum. It is true to suggest that I have not produced original gift deed".
Ex.P1 is Khata extract pertaining to schedule property in which following names are shown in owner's column;
"Mohamed Zameer, Mohamed Mustaq, Mohamed Ashfaq Hussain and Mohamed Ayaz".
13. Ex.P2 is nil encumbrance certificate and it reveals that no transaction has been taken place in respect of schedule property during the period from 01.04.2004 to 26.03.2014. This document falsifies the defence of the defendant No.2 that an agreement of sale was executed by Smt.Ameenabi or by Lathif in respect of schedule property. Ex.P3 is copy of gift deed dated 04.03.1965 which discloses that M.A.Lathif has gifted properties in municipal No.23/11, 22/12 and 21/12 in favour of following persons;
1. Zameerulla Hussain,
2. Altaf Hussain,
3. Mustaf Hussain,
4. Ashfaq Hussain,
5. Ayaz Hussain The donees were minors at the time of gift and were under the guardianship of their mother Smt.Ameenabi begum @ Maqboobjan.
14. Ex.P4 is the copy of complaint filed by the plaintiff No.1 before PSI, City Market, Bangalore against the defendants. The complaint reads as under;
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Ex.P5 is an undertaking dated 21.02.2014 executed by the defendant No.1 who has agreed to vacate the schedule property on or before 15.03.2014. The signature on Ex.P5 tallies with the signature of the defendant No.2 on his Vakalathnama.
15. Ex.P6 is copy of Caveat petition which reveals that the defendant No.2 has filed caveat against the plaintiffs and the defendant No.1 in respect of the schedule property. He has claimed ownership over the schedule property in his caveat petition. Dw-1 has admitted the filing of caveat petition as per Ex.P6. He has not given proper explanation as to filing the petition SCCH-14 10 SC No.735/2014 against the plaintiffs and the defendant No.1 when they are not related to the schedule property. Combined perusal of Ex.P5 and 6, it reveals that the defendant No.1 was the tenant in respect of schedule property.
16. The counsel for the defendant No.2 has given specific suggestions to PW-1 in cross-examination and extracted answers. Portions of his cross- examination are as under;
"The suit schedule property is my ancestral property. The said property was purchased by mother of my grand father. It is true to suggest that one Smt. Ameena Begum was the owner of suit schedule property. Witness volunteers that she was the guardian of the property. M.A. Latheef is my grand father. We have paid taxes pertaining to suit schedule property".
"It is true to suggest that the names mentioned in Khatha Extract are different from the names mentioned in gift deed. Witness volunteers that my 2 brothers were having different names".
"It is false to suggest that the said Kannan was the tenant in the suit schedule property under Lathif since 2004".
17. The evidence of PW-1 that M.A.Lathif was his grand father and Smt.Ameena begum was his mother remained unchallenged. On the contrary, it is impliedly admitted by the defendant No.2 through suggestion that Smt.Ameena begum was the owner of the schedule property. The said Ameena begum is shown as minor guardian of Zameerulla Hussain, Altaf Hussain, Mustaq Hussain, Ashfaq Hussain and Ayaz Hussain in Ex.P3. Names of plaintiff No.1 and 3 are correctly spelt and that of plaintiff No.2 is mis-spelt in Ex.P3. The other two persons named in Ex.P3 are not the parties to the suit. Names of plaintiff No.2 is correctly shown in Khata extract and one Mohammed Zameer is shown as co-owner who is not the plaintiff. It is settled principle of law that all the co-sharers need not be parties to the suit SCCH-14 11 SC No.735/2014 for ejectment. If the defendant No.2 had proved that the non suitor has agreed to continue him in the suit property, then suit will be bad for non- joinder of necessary party. In this case, the defendant No.2 has denied the title of the plaintiffs and claimed to be the owner of the schedule property. Hence, non joinder of Mohammed Zameer and Altaf Hussain is not fatal to the case of the plaintiffs. I am of the opinion that the plaintiffs are the persons named in Khata extract and in gift deed. Admittedly, M.A.Lathif and Smt.Ameena begum are dead. The defendants are not the heirs of either of them. The defendant No.2 has failed to prove the title of Kannan or himself over the schedule property. Evidence of PW-1 is corroborated by the contents of Ex.P1 to 3 which collectively establish the averments of the plaint that they are the LRs of the original owner M.A.Lathif. They have become landlords of the schedule property. Evidence of PW-1 as to status of the defendants is supported by the contents of Ex.P4 to 6. Oral and documentary evidence adduced by the plaintiffs is probable and believable. Preponderance of probability tilts towards the plaintiffs. The defendant No.1 has no defence. Ex.P5 reveals that he was the tenant in the schedule property and has undertaken to vacate the property by 15.03.2014. The defendant No.2 has failed to prove his defence. Moreover, his defence suffers from material contradiction and is liable to be rejected. He has admitted that Kannan was tenant under Lathif. He occupied the property through Kannan. Hence, he is deemed to be a tenant under the plaintiffs in respect of the schedule property.
Sec.111 of the Transfer of Property Act reads as under;
111. Determination of lease.--A lease of immoveable property determines--
(a) by efflux of the time limited thereby;
(b) where such time is limited conditionally on the happening of some event--by the happening of such event;SCCH-14 12 SC No.735/2014
(c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event--by the happening of such event;
(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right;
(e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them;
(f) by implied surrender;
(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; 2[or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event]; and in 3[any of these cases] the lessor or his transferee 4[gives notice in writing to the lessee of] his intention to determine the lease;
(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other. Illustration to clause (f) A lessee accepts from his lessor a new lease of the property leased, to take effect during the continuance of the existing lease.
This is an implied surrender of the former lease, and such lease determines thereupon.
18. The defendant No.2 has denied the title of the plaintiffs to the schedule property. Ex.P5 is executed by the respondent No.1. Hence, no notice required to determine the tenancy of the defendants as per the provisions of Sec.111(a) and (g) of T.P.Act. They are bound to vacate and deliver the vacant possession of the schedule property in favour of the plaintiffs. Hence, I am of the opinion that the plaintiffs have proved their case. There existed jural relationship of landlord and tenant between the plaintiffs and defendant No.1. and between the defendant No.1 and 2. Their tenancy came to an end by execution of Ex.P5 and by filing of Ex.P6 SCCH-14 13 SC No.735/2014 respectively. The plaintiffs are entitled for the relief sought for. Hence, I answer the points in affirmative.
19. Point No. 4: In view of above discussion and findings, I proceed to pass following:
ORDER The suit of the plaintiff is decreed with cost.
The defendants are directed to quit, vacate and deliver the vacant possession of the schedule premises in favour of the plaintiffs within 2 months from the date of decree.
Draw decree accordingly.
(Typed directly on the computer, corrected by me and then pronounced in the open Court on this 22nd day of January 2016) (BASAVARAJ CHENGTI) 16th ADDL. JUDGE, COURT OF SMALL CAUSES, BANGALORE.SCCH-14 14 SC No.735/2014
SCHEDULE Shop NO.13 Sethurao street, Bangalore-02 measuring 35X10 feet bounded on;
East by : Sethurao street,
West by : Grand islamiya Hotel,
North by : Corge Society,
South by : Grand Islaymiya Hotel,
(BASAVARAJ CHENGTI)
16th ADDL. JUDGE,
COURT OF SMALL CAUSES,
BANGALORE.
SCCH-14 15 SC No.735/2014
ANNEXURE
LIST OF WITNESSES EXAMINED AND DOCUMENTS MARKED FOR PLAINTIFF AND DEFENDANTS:
PW.1 Mohammed Ashfaq
Defendants
DW.1 Sagai Raj
EX.P.1 : Khatha Extract
Ex.P.2 : Nil encumbrance certificate
Ex.P.3 : Certify copy of Gift Deed (subject to
Objection)
EX.P.4 : Copy of Complaint dated:03-04-2014
Ex.P.5 : Letter of undertaking
Ex.P.6 : Copy of caveat petition
Defendant's NIL
16th ADDL. JUDGE,
COURT OF SMALL CAUSES,
BANGALORE.
SCCH-14 16 SC No.735/2014
DECREE
S.C.C.H.NO.14
IN THE COURT OF SMALL CAUSES COURT, AT BANGALORE.
S.C.No.735/2014 Plaintiff/s : 1.Mohammed Ashfaq Hussain S/o G.M.Hussian,
2. Mohammed Mustaq,
3. Mohammed Ayaz S/o G.M.Hussain, V/s All are residing at No.226, 4th floor Ameena Apartments, Opp; To Kalasipalya Bus Stand, A.V.Road, Bangalore-560002.
(By pleader Sri DRS) Defendant/s 1.MR. Shamshudeen Hajee, S/o N.Ismail Hajee, Aged about 58 years, R/at No.4 Risaldar Street, Sheshadripuram, Bangalore-20.
2. Sagai Raj, S/o Susai Raj, Aged 42 years, R/at No.15, BDG Lane Ranasinghpet, Bangalore-05.
(D1-By pleader Sri SE) (D2-By pleader Sri BVM) CLAIM: Suit filed on prays for directing defendant to quit and vacate the vacant possession of the schedule premises.
This suit coming on` for final disposal before Sri.Basavaraj Chengti ., XVI Addl. Judge, CSC, Bangalore, in the presence of Sri/Smt SCCH-14 17 SC No.735/2014 Advocate, for the plaintiff and Sri/Smt Advocate, for the defendant.
ORDER The suit of the plaintiff is decreed with cost.
The defendants are directed to quit, vacate and deliver the vacant possession of the schedule premises in favour of the plaintiffs within 2 months from the date of decree.
Given under my hand and the seal of the Court this Day of 2015.
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.
SCCH-14 18 SC No.735/2014SCHEDULE Shop NO.13 Sethurao street, Bangalore-02 measuring 35X10 feet bounded on;
East by : Sethurao street,
West by : Grand islamiya Hotel,
North by : Corge Society,
South by : Grand Islaymiya Hotel,
Decree Drafted Scrutinised by REGISTRAR,
COURT OF SMALL CAUSES,
BANGALORE
Decree Clerk SHERISTEDAR
SCCH-14 19 SC No.735/2014
Dt.22.01.2016
P-DRS
D1-SE
D2-BVM
For Judgment
Order pronounced in open court
vide separate judgment.
ORDER
The suit of the plaintiff is decreed with cost.
The defendants are directed to quit, vacate and deliver the vacant possession of the schedule premises in favour of the plaintiffs within 2 months from the date of decree.
Draw decree accordingly.
XVI ADDL.JUDGE, Court of Small Causes, BANGALORE.
SCCH-14 20 SC No.735/2014 SCCH-14 21 SC No.735/2014