Karnataka High Court
Smt. Haritha vs Sri. R. Mothiraj on 9 October, 2015
Author: B.S.Patil
Bench: B.S.Patil
CRP 372/2014
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF OCTOBER, 2015
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
C.R.P.No.372/2014
BETWEEN:
Smt. Haritha,
D/o late P.Raju,
W/o late Shekar,
Aged about 69 years,
Residing at House No.5/1,
9th Cross, Vasanthanagar,
Bengaluru - 560 052. ... PETITIONER
(By Sri G.Krishnamurthy, Sr. Counsel, for
Sri Prashanth.G., Adv.)
AND:
Sri R.Mothiraj,
S/o late P.Raju,
Aged about 59 years,
Residing at No.162, 9th Cross,
Vasanthanagar,
Bangalore - 560 052. ... RESPONDENT
(By Sri Aswathanarayana Reddy, Adv.)
This Civil Revision Petition is filed under Section 18 of the
Karnataka Small Causes Courts Act, against the judgment and
decree dated 06.08.2014 in S.C.No.15170/2013 on the file of V
Addl. Small Causes Judge & 24th ACMM, Bangalore, decreeing
the suit for possession.
This petition having been heard and reserved for Orders
on 04.09.2015, coming on for 'Pronouncement of Order', this
day, the Court made the following:
CRP 372/2014
2
ORDER
1. This revision petition is filed by the defendant under Section 18 of the Karnataka Small Causes Courts Act, 1964 (for short, 'the Act'), challenging the judgment and decree dated 06.08.2014 passed by the Small Causes Court, Bengaluru, ordering her ejectment from the suit schedule property with a direction to vacate and hand over vacant possession within 60 days from the date of judgment and decree passed.
2. Defendant - revision petitioner is the elder sister of the plaintiff. Plaintiff instituted the suit seeking ejectment of her sister from the premises situated at 9th Cross, Vasanthanagar, Bengaluru, contending inter alia that he was the absolute owner in possession of the property to an extent of 1,467 sq. ft. described in Schedule A, having purchased the same as per registered sale deed dated 24.09.1986.
3. It is his case that since his sister - defendant did not have a house to live after the marriage and was in financial constraints, on her request, plaintiff accommodated the defendant in a portion of Schedule A property described in Schedule B. This arrangement was purely temporary and based CRP 372/2014 3 on a good gesture without any consideration, and therefore, the possession of the defendant was that of a licensee.
4. When the defendant did not vacate the premises, a legal notice was issued followed by institution of a suit O.S.No.4671/1999. In the meanwhile, defendant had filed a suit for partition of her 1/5th share by filing O.S.No.2790/2006. The suit for possession filed by the plaintiff and the suit for partition filed by the defendant were clubbed together and by a common judgment, the Trial Court decreed the suit for partition allotting 1/5th share to the defendant and dismissed the suit for possession filed by the plaintiff. This was challenged in appeal in R.F.A.No.1124/2009 connected with R.F.A.No.1124/2009 & 1242/2009. This Court vide its judgment dated 01.10.2012 set aside the decree of partition granted in favour of the defendant holding that she had no right whatsoever in the suit property. However, the Court did not interfere with the dismissal of the suit for possession filed by the plaintiff on the ground that the said suit had been filed on the same cause of action on which the earlier suit O.S.No.10136/1992 had been filed by the plaintiff, which came to be dismissed for non-prosecution, and CRP 372/2014 4 therefore, the second suit on the same cause of action was barred.
5. Another legal notice was issued by the plaintiff on 08.04.2013 calling upon the defendant to quit and deliver vacant possession of Schedule B property. When the defendant did not comply with the demand, the present suit came to be instituted before the Small Causes Court seeking ejectment.
6. Defendant contested the suit contending inter alia that the plaintiff was not the absolute owner of Schedule B property; that the earlier suit filed in O.S.No.10136/1992 and O.S.No.4671/1999 had been dismissed and the present suit filed for the same relief in respect of the same property was hit by the principles of res judicata. Defendant further contended that she had no other shelter except the present property and that based on created documents, plaintiff was trying to evict the defendant.
7. In the light of the respective pleadings, the Trial Court framed the relevant points for consideration as to whether the plaintiff proved that defendant was a licensee under him in respect Schedule B property? Whether the plaintiff had legally CRP 372/2014 5 terminated the relationship of licensee and licensor, and whether the plaintiff was entitled for the relief sought?
8. Plaintiff examined himself as PW-1 and produced and marked Exs.P-1 to P-20. Defendant examined herself as DW-1 and her son Arun Balaji as DW-2 and produced and marked Exs.D-1 to D-4.
9. The Trial Court has examined the documents of title produced by the plaintiff and has recorded a finding that plaintiff had purchased the suit schedule property by a registered sale deed and the khatha of the suit schedule property has been changed in his name and he has been paying kandayam to the revenue department. It has placed reliance on the judgment of this Court produced and marked as Ex.P-1 rendered in R.F.A.No.1124/2009 c/w R.F.A.No.1124/2009 & 1242/2009, wherein this Court has clearly held that defendant herein had no right in the suit property and plaintiff is the absolute owner having acquired the property under registered sale deed. The Trial Court has thus recorded a finding that the plaintiff was able to establish his title over the property and defendant's assertion that she had any right over the property was baseless.
CRP 372/20146
10. In so far as the dismissal of plaintiff's earlier suit filed for possession on the ground that the said suit was filed on the same cause of action on which the earlier suit O.S.No.10136/1992 was filed, the Trial Court has found that the Regular First Appeal filed by the plaintiff was dismissed only on the ground that the second suit O.S.No.4671/1999 had been filed on the same cause of action on which the earlier suit had been filed.
11. The right of the plaintiff to continue in the suit premises was not recognized in the said judgment. Indeed, the first suit O.S.No.10136/1992 filed by the plaintiff seeking possession was dismissed for non-prosecution. In the present suit, plaintiff has pleaded a fresh cause of action which has arisen to him on 08.04.2013 after he called upon the defendant to quit and vacate Schedule B property. The quit notice has bee marked as Ex.P-3 which is dated 08.04.2013. Ex.P-5 is the postal acknowledgment which disclosed the service of notice on the defendant. Ex.P-6 is the reply notice given by the defendant. Therefore, the present small causes suit for ejectment was based on a subsequent and different cause of action which had arisen on 08.04.2013 and continued thereafter. Hence, the Trial CRP 372/2014 7 Court has held that dismissal of the first suit for default and the second suit on the ground that the earlier suit had been dismissed on the ground that the same had been filed on the same cause of action, would not come in the way of the plaintiff
- licensor instituting a fresh suit for ejectment after terminating the license as it is a recurring cause of action.
12. The defence of the defendant has been that Schedule B property belonged to her as she has been inducted by her father into the property. In the cross-examination, she has deposed to the same effect. Her son DW-1 has also stated that plaintiff was not the owner and her mother was not the licensee under the plaintiff. He has also asserted the right of her mother over the property.
13. The Trial Court has examined the merits of the case and has come to the conclusion that as per the death certificate of the husband of the defendant, it was clear that defendant's husband died in 1978. Defendant had not produced any document to establish her right over the property. On the other hand, plaintiff had possessed the documents of title over the property including khatha and tax paid receipt, and therefore, having regard to the relationship between the parties and the CRP 372/2014 8 stand taken by the plaintiff that defendant was permitted to continue in the premises as a licensee, the status of the defendant was that of licensee only and not that of a owner.
14. In so far as her contention that she had no other property and that it would cause great hardship to the defendant to vacate and hand over possession of the property, the Trial Court has recorded a finding based on the certified copy of the sale deed executed through Court viz., VIII Addl. City Civil & Sessions Judge, Bengaluru, in favour of the defendant who was the decree-holder in O.S.No.5308/1988 in the execution proceedings in E.P.No.1705/2011, that defendant had become owner of the immovable property bearing No.15, built in Site No.26, situated at Achamma Garden, K.G.Bidara Halli, 46 Division, Bengaluru, and hence there was no truth in her assertion that she would put to irreparable hardship, if she was ordered to be evicted.
15. Mr. G.Krishna Murthy, learned Senior Counsel appearing for the revision petitioner contends that small causes suit is not maintainable in view of Section 8 read with Clause 4 of the Schedule of the Act, because there was no relationship of landlord and tenant or licensor and licensee between plaintiff CRP 372/2014 9 and defendant. In this regard, he invites the attention of the Court to Section 52 of the Easements Act, to contend that the relationship between the plaintiff and defendant does not fall within the definition of the term 'license'.
16. He points out that defendant was residing in the property during the life time of her father and continued to do so, and therefore, her occupation cannot be characterized as that of a licensee as she has been residing there as a member of the family. In this regard, he has placed reliance on the judgment of the Calcutta High Court in the case of DAMODAR NARYAN SINGH VS SARDAR HIRA SINGH & ANR. - (2002) ILR 2 CAL 43. It is his submission that the contention taken by the plaintiff in the plaint that after the marriage, defendant was accommodated by him in the house had no semblance of truth because the marriage of the defendant took place in the year 1960 when the father was alive and during his life time, as member of the family she continued to stay in her father's house and the sale deed was executed by her father in favour of the plaintiff on 24.09.1986, hence, question of plaintiff permitting the defendant to stay in the house did not arise. CRP 372/2014 10
17. The materials on record would clearly indicate that admittedly the property in question was the absolute property of the father of the plaintiff and defendant. He has executed a registered sale deed on 24.09.1986 transferring all his right, title and interest in the property in favour of the plaintiff. Plaintiff has thus become the absolute owner of the property. The suit filed by the defendant seeking partition claiming 1/5th share in the property has been dismissed and the dismissal of the suit has been confirmed by this Court. Therefore, plaintiff's assertion that he is the absolute owner of the property has been established and the defence taken by the defendant that the plaintiff was not the absolute owner and that she had right over the property has been rightly negated by the Trial Court.
18. The only question is whether the relationship between the plaintiff and defendant was that of a licensor and licensee and whether the same was revoked in accordance with law before filing the suit for ejectment. Once the plaintiff becomes the absolute owner of the property, even if defendant was permitted to continue to stay in the house after the demise of the father of the plaintiff, her status would be only that of a licensee. Plaintiff, as asserted by him, permitted her to continue in the CRP 372/2014 11 premises. There is no material to show that she was so permitted in recognition of her right in the property. Indeed, the said assertion made by the defendant has been negatived in the suit filed by her seeking partition.
19. Section 52 which defines the term 'license' does not come to the aid of the defendant. Indeed, the term 'license' as defined in Section 52 makes it clear that when one person grants to another a right to do something in or upon the immovable property of the grantor, which would, in the absence of such right be unlawful and such right does not amount to any easement or an interest in the property, then the said right is called as license.
20. In the instant case, plaintiff has permitted his sister - defendant to continue to stay in the premises which absolutely belongs to him. He has not created any interest in her favour in the property, nor the defendant claims any easement in the property, therefore, ingredients of the definition of the term ' license' has been established.
21. The judgment of Calcutta High Court on which reliance has been placed by the learned Senior Counsel for the appellant CRP 372/2014 12 will not come to his help, in as much as, in the said case, it has been observed that in Indian family, father cannot be said as other person in respect of the son so as to make the relationship between father and son in a joint family that of licensor and licensee because in the Indian system of family, son's stay in the house of the father not as a licensee, as was alleged by the plaintiff in the said case. In that context, referring to Section 52 of the Easements Act, the Calcutta High Court has held by referring to the decision of the Bombay High Court in the case of HOSHANG RUSTOMJI DOTIWALA VS RUSTOMJI ERUCHSHA DOTIWALA - 1998 MAH RCJ 15, that a son cannot be a licensee in respect of the residential house of his father, in as much as, son resides in the family with father as a member of the family simpliciter. The said judgment cannot be made applicable to the facts of the present case, wherein defendant who is the sister of the plaintiff, has continued to stay in the house which absolutely belongs to the plaintiff. Although relationship between both of them is that of brother and sister, the legal status for the sister to continue in the house is permissive possession as granted to her by the son and it falls within the definition of the term 'license' under Section 52 of the Easements Act. Therefore, the small causes CRP 372/2014 13 suit was maintainable in terms of Section 8 read with Clause 4 of the Schedule. The contentions urged to the contrary are untenable.
22. The small causes suit filed seeking ejectment of the defendant, is based on the fresh cause of action that has accrued after the legal notice was issued calling upon the defendant to vacate the premises, to which the defendant refused asserting her own right. Dismissal of the original suit, earlier filed, for non-prosecution cannot operate as a bar for the fresh suit filed against the licensee based on a fresh cause of action. Indeed, this question has not been seriously pressed by the revision petitioner. Therefore, the revision petition filed by the defendant being devoid of merits is liable to be dismissed and is accordingly dismissed.
23. However, in view of the relationship between the parties as brother and sister and as it is submitted that the defendant will require some time to vacate the premises to accommodate herself elsewhere, I am of the view that four months time deserves to be granted to the defendant to vacate and hand over vacant possession of the premises. Therefore, defendant is CRP 372/2014 14 granted four months time to vacate and hand over vacant possession of the premises to the plaintiff.
Sd/-
JUDGE KK