Bangalore District Court
Bipin Kumar Babulal Shah vs S.R. Sreenath on 12 September, 2017
Form No.9
(Civil) Title
Sheet for
Judgment
in Suits
R.P. 91
PRESENT: SRI S.H.HOSAGOUDAR,
B.Sc.,LL.B.,[Spl]
XXVII Additional City Civil Judge.
Dated this the 12th day of September 2017
PLAINTIFF: Bipin Kumar Babulal Shah
S/o Late Babulal Shah,
Aged 56 years,
No.18, 3-D, Cross,
Opp: Shanbhag Nursing Home,
Basaveshwaranagar,
Bengaluru-560 079.
[By Sri Bhagwan S.G, Advocate]
/v e r s u s/
DEFENDANT: S.R. Sreenath
S/o Sri S.Ramesh, 57 years,
No.75, Sultanpet Main Road,
Bangalore-560 053,
Residing at:
No.160,Madhavanagar,
Near Highlands Hotel,
Race Course Road,
Bangalore-560 001.
[By Sri AK, Advocate]
Date of institution of the : 3/10/2015
suit
Nature of the suit : For ejectment
Date of commencement of : 19/2/2016
recording of the evidence
2 CT0028_O.S._8405_2015_Judgment_
.
Date on which the : 12/9/2017
Judgment was
pronounced.
: Year/s Month/s Day/s
Total duration
1 11 9
(S.H. Hosagoudar)
XXVII ACCJ: B'LORE.
Plaintiff has filed this suit for ejectment directing the defendant to vacate and handover vacant possession of 'B' schedule property to the plaintiff and also to direct the defendant to pay mesne profits at the rate of Rs.80,000/- per month from 16/8/2015 till date of handing over possession and cost of the suit.
2. In brief, the plaintiff's case is as under:
That the plaintiff is the absolute owner of suit 'A' schedule property and plaintiff purchased it under absolute sale deed dated 8/7/2013. At the time of execution of the sale deed, 'A' schedule property was divided into five kathas. After purchase by the special notice dated 3/1/2014, the Assistant Revenue Officer, BBMP, Bangalore amalgamated the property with
3 CT0028_O.S._8405_2015_Judgment_ .
katha no.75, 76, 77, 78 and 78/1 into one entity bearing No.75. At the time of purchase of 'A' schedule property, the defendant was tenant in respect of a portion of the property bearing No.75, morefully described in 'B' schedule property. He was a tenant under vendors of the plaintiff. It now bears katha no.75. Pursuant to the purchase, the vendors of the plaintiff communicated the fact of sale to the defendant by letter dated 10/7/2013 which is acknowledged by him on the same day. By that letter, tenancy in respect of 'B' schedule property was attorned in favour of plaintiff. Since then defendant has been paying paltry rent of Rs.24,000/- per month to the plaintiff.
There is no tenancy agreement or deed of tenancy between plaintiff and defendant in respect of 'B' schedule property. The tenancy of the defendant is monthly tenancy which is terminable by 15 days notice under Section 106 of T.P.Act. By the notice dated 30/7/2015 issued on behalf of plaintiff to the 4 CT0028_O.S._8405_2015_Judgment_ .
defendant wherein plaintiff terminated the tenancy of defendant with demand to quit and deliver vacant possession of the suit schedule premises on or before 15/8/2015. The notice was duly served upon defendant. Thereafter, defendant got issued untenable reply. Now defendant is in unauthorized occupation of the suit schedule property since his tenancy was duly terminated and hence defendant is liable to pay Rs.80,000/- as a damages from the date of notice of termination till handing over possession of the 'B' schedule property to the plaintiff. Hence this suit.
3. In response to summons issued by the Court, defendant appeared through his counsel and filed written statement. In brief the contents of the written statement filed by defendant are as under:
The suit filed by the plaintiff is not maintainable either in law or on facts. The defendant has denied all the averments made in the plaint are as false. That the defendant has invested huge amounts and is doing business since from more than 30-35 years. 5 CT0028_O.S._8405_2015_Judgment_ .
Originally one G.Satish was the owner of suit schedule premises. This defendant was tenant of the suit schedule premises in which he is doing transport business since 1981 on monthly rent of Rs.500/- and with a security deposit of Rs.5,000/- at that time. The original owner has agreed to execute sale deed in favour of defendant herein. But, original owner instead of coming forward to execute registered sale deed in favour of defendant and in order to make illegal profit even after receiving some amount about Rs.5,00,000/- to Rs.6,00,000/- towards said transaction, the original owner sold the suit schedule premises to the plaintiff. There is no cause of action to file the suit. That the plaintiff has not required suit schedule property for his bonafide use. If defendant is evicted from the suit schedule property, he will be put to greater hardship. On these grounds, he prayed for dismissal of the suit.
4. On the basis of the pleadings of the parties, this court has framed following issues:
6 CT0028_O.S._8405_2015_Judgment_ .
(1) Whether the plaintiff proves that he has properly terminated tenancy of the defendant over the suit schedule property?
(2) Whether plaintiff is entitled for the reliefs as sought for in the suit?
(3) What order or decree?
5. In this case, plaintiff in order to prove his case, he examined himself as PW.1 and produced in all 5 documents which are marked as Ex.P1 to Ex.P5 and closed his side of evidence. On the other hand, defendant examined himself as DW.1 and not got marked any documents and closed his side of evidence.
6. Heard arguments on both sides and perused entire records of the case.
7. My findings on the above issues are as under:
Issue No. 1) ............ In the affirmative; Issue No. 2) ............ Partly in the affirmative; Issue No. 3) ............ As per final order for the following:
7 CT0028_O.S._8405_2015_Judgment_ .
8. ISSUE NO. 1: Plaintiff filed this suit against the defendant for ejectment directing the defendant to vacate and handover vacant possession of the 'B' schedule property to the plaintiff.
9. In this case plaintiff examined himself as PW.1. He filed affidavit evidence in lieu of his examination in chief. In his examination in chief, he reiterated the plaint averments. He produced documents which are marked as Ex.P1 to Ex.P5. In the cross-examination he admitted that even after purchase of the property defendant continued as a tenant under him. He denied that he has filed false suit against the defendant.
10. In this case defendant examined himself as DW.1. He filed affidavit evidence in lieu of his examination in chief. In his examination in chief, he reiterated the contention taken in the written statement. But he has not produced any documents.
8 CT0028_O.S._8405_2015_Judgment_ .
In the cross-examination, he admitted that as per instruction of Satish, he was paying rent to the plaintiff.
11. I have perused entire evidence on record. The evidence on record clearly shows that originally suit schedule property belonged to one G.Satish and others. Further, evidence on record clearly shows that the plaintiff has purchased the 'A' schedule property under registered sale deed dated 8/7/2013 for valuable consideration. Further evidence on record clearly shows that defendant was a tenant in respect of suit schedule property under vendor of the plaintiff. Further evidence on record clearly shows that pursuant to the purchase, the vendors of the plaintiff communicated the fact of sale to the defendant by letter dated 10.7.2013 and by the said letter, the tenancy in respect of 'B' schedule property was attorned in favour of plaintiff. Hence, from the evidence on record, it is much clear that by virtue of 9 CT0028_O.S._8405_2015_Judgment_ .
sale deed, the plaintiff became the owner and landlord of the 'B' schedule property and defendant is the tenant under plaintiff. Admittedly, there is no rent agreement between plaintiff and defendant in respect of suit schedule property. Hence it is much clear that, the tenancy of the defendant in respect of 'B' schedule property is one from monthly tenancy which is terminable by 15 days notice under Section 106 of Transfer of Property Act.
12. In this case plaintiff has produced quit notice which is marked as Ex.P3. On perusal of the same, it clearly shows that plaintiff has issued quit notice dated 30.7.2015 to the defendant demanding him to quit and deliver vacant possession of the suit schedule premises on or before 15/8/2015 by terminating the tenancy of the defendant. Admittedly, the said notice was duly served upon the defendant. In this case plaintiff also produced postal acknowledgement which is marked as Ex.P4. It shows 10 CT0028_O.S._8405_2015_Judgment_ .
that quit notice issued by the plaintiff to the defendant was duly served upon him. The evidence on record clearly shows that the tenancy between plaintiff and defendant in respect of 'B' schedule property is a monthly tenancy and said tenancy is terminable by 15 days notice under Section 106 of T.P.Act 1882.
13. In this case plaintiff has issued quit notice as per Ex.P3 and said notice was duly served upon the defendant. It clearly shows that plaintiff has properly terminated the tenancy of the defendant over the 'B' schedule property. Ex.P3 is legal and valid and it is in accordance with law. Hence the plaintiff has properly terminated the tenancy of the defendant over 'B' schedule property. Plaintiff proved issue no.1. Accordingly I answer issue no.1 in the affirmative.
14. ISSUE NO.2: In this case plaintiff sought a decree for ejectment directing the defendant to vacate and handover vacant possession of the 'B' 11 CT0028_O.S._8405_2015_Judgment_ .
schedule property to the plaintiff and also sought for mesne profits at the rate of Rs.80,000/- per month from the date of termination of tenancy till handing over vacant possession of the suit schedule property to the plaintiff. While answering issue no.1, it is held that plaintiff has properly terminated the tenancy of the defendant over 'B' schedule property. Admittedly quit notice i.e., Ex.P3 was duly served upon the defendant. Inspite of issuance of Ex.P3, defendant has failed to quit and vacate the vacant possession of the suit schedule premises to the plaintiff. Hence now defendant is in unauthorized occupation of the suit schedule property since from the date of valid termination of tenancy. Therefore, plaintiff is entitled for decree for ejectment and defendant is liable to vacate and handover vacant possession of 'B' schedule property to the plaintiff.
15. In this case, plaintiff sought for the relief directing the defendant to pay mesne profits of 12 CT0028_O.S._8405_2015_Judgment_ .
Rs.80,000/- per month from the date of termination of tenancy till handing over possession of the suit schedule premises to the plaintiff. In this case plaintiff has not adduced any cogent evidence on record to show that as on the date of filing the suit, suit schedule property fletches the rent of Rs.80,000/- per month. The evidence on record clearly shows that now defendant is in unauthorized occupation of the suit schedule property from the date of termination of the tenancy. Hence defendant is liable to pay damages to the plaintiff from the date of termination of tenancy till handing over vacant possession of the 'B' schedule property to the plaintiff. But it requires separate enquiry with regard to damages in terms of Order 20 Rule 12 CPC. However, defendant is liable to vacate and handover vacant possession of the suit 'B' schedule property to the plaintiff. So far as mesne profits/damages is concerned, there shall be separate enquiry as per provisions of Order 20 Rule 12 CPC. 13 CT0028_O.S._8405_2015_Judgment_ .
16. During the course of argument, learned counsel for the defendant vehemently argued that in case if court decreed the suit of the plaintiff then kindly grant one year time to the defendant to vacate suit schedule premises since many years defendant has been doing business in the 'B' schedule property. The evidence on record clearly shows that defendant is doing business in the 'B' schedule property. Looking to the facts and circumstances of the case and nature of business carrying out by the defendant in the 'B' schedule property, I feel that if six months time is granted to defendant to vacate and handover vacant possession of the suit schedule premises to the defendant it will meet the ends of justice. Plaintiff is entitled for relief as sought for. Plaintiff partly proved issue no.2. Accordingly I answer issue no.2 partly in the affirmative.
17. ISSUE NO.3: From my above discussion and reasoning, the suit of the plaintiff deserves to be 14 CT0028_O.S._8405_2015_Judgment_ .
decreed in part. In the result, I proceed to pass the following:
The suit of the plaintiff is hereby decreed in part.
Defendant is hereby directed to vacate and handover vacant possession of the 'B' schedule property to the plaintiff within six months from the date of this Judgement. Failing which plaintiff is at liberty to take possession of the 'B' schedule property under due process of law.
Plaintiff is entitled for mesne
profits/damages from the
defendant for his unauthorized use and occupation of the suit schedule premises from the date of termination of tenancy till handing over vacant possession of the suit schedule premises.
There shall be separate enquiry with regard to mesne profits/
15 CT0028_O.S._8405_2015_Judgment_ .
damages as per provisions of Order 20 Rule 12 CPC.
Under the facts and circumstances of the case, there is no order as to costs.
Draw decree accordingly.
*** [Dictated to the Judgment Writer directly on computer, Script corrected, signed and then pronounced by me, in the Open Court on this the 12th day of September 2017.] [S.H. HOSAGOUDAR] XXVII Additional City Civil Judge.
BANGALORE.
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 Bipin Kumar Babulal Shah
2. List of witnesses examined on behalf of the Defendant/s:
DW.1 S.R.Sreenath
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P 1 Certified copy of the sale deed dated 8/7/2013 Ex.P 2 Letter of attornment 16 CT0028_O.S._8405_2015_Judgment_ .
Ex.P 3 Office copy of legal notice Ex.P 4 Postal acknowledgement Ex.P 5 Reply
4. List of the documents marked for the defendants:
Nil.
[S.H. HOSAGOUDAR] XXVII Additional City Civil Judge, BANGALORE.
12/9/2017 Plaintiff-SGB Defendant-AK For Judgment..
...Judgment pronounced in the Open Court.... (Vide separate detailed judgment) The suit of the plaintiff is hereby decreed in part.
Defendant is hereby directed to vacate and handover vacant possession of the 'B' schedule property to the plaintiff within six months from the date of this Judgement. Failing which plaintiff is at liberty to take possession of the 'B' schedule property under due process of law.
Plaintiff is entitled for mesne profits/damages from the defendant for his unauthorized use and occupation of the suit schedule premises from the date of termination of tenancy till handing over vacant possession of the suit schedule premises.
There shall be separate enquiry with regard to mesne profits/damages as per provisions of Order 20 Rule 12 CPC.
Under the facts and circumstances of the case, there is no order as to costs.
Draw decree accordingly.
[S.H.HOSAGOUDAR] XXVII Additional City Civil Judge.
BANGALORE.
19 CT0028_O.S._8405_2015_Judgment_ .
20 CT0028_O.S._8405_2015_Judgment_ .
21 CT0028_O.S._8405_2015_Judgment_ .