Bangalore District Court
Smt.Yashoda vs Smt.Sharada on 13 April, 2018
IN THE COURT OF XL ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-41) AT BENGALURU.
Dated this the 13th day of April 2018.
PRESENT
SRI.RAVINDRA. M. JOSHI,
M.A., LL.B. (Spl.)
XL Addl.City Civil & Sessions Judge, Bengaluru.
O.S.NO.3983/2012
Plaintiff : SMT.YASHODA,
Aged about 45 years,
W/o. K.N.Gopal,
Represented by her GPA Holder-
SRI.K.N.GOPAL,
Aged about 59 years,
S/o. Late Nagappa, R/o. No.4,
23rd Block, Nandini Sankirana,
Audugodi Police Lane,
Bengaluru-560 030.
(By Sri.N.M.Nanjunde Gowda,
Advocate.)
AND:
Defendant: SMT.SHARADA,
Age: Major, W/o. Late Basavaraju,
R/o. Portion of Premises bearing Old
No.308, BBMP No.8, PID No.67-44-8,
1st Cross, New Model Harijana Colony,
Koramangala Village, Bengaluru-560
095.
(By Sri.R.C.Patil Advocate.)
2 OS.3983/2012
i) Date of Institution of the 06.06.2012
suit.
ii) Nature of the suit. Ejectment.
iii) Date of the
commencement of 04.11.2015
recording of evidence.
iv) Date on which the
judgment was pronounced. 13.04.2018
v) Total Duration Year/s Month/s Days
05 10 07
*****
JUDGMENT
The plaintiff has filed this suit against the defendant for directing the defendant to quit and deliver vacant possession of suit schedule 'B' property and for other reliefs.
SCHEDULE 'A' PROPERTY All that piece and parcel of Hind Portion of property bearing old No.308, then No.8, present BBMP No.13, Old PID No.67-44-8, New PID No.147- WO196-13, situated at New Model Harijana Colony, Koramangalal, Bengaluru, measuring 15 feet X 40 3 OS.3983/2012 feet, bounded on East by : Passage and then Private property, West by : Passage and then Private property, North by : Private property and South by :
Road.
SCHEDULE 'B' PROPERTY Portion of property measuring 9'.6" X 8'.0" feet in the Hind portion of the 'A' schedule property and bounded on East by : Passage then private property, West by : Passage then private property, North by : Private property, South by : Remaining portion of 'A' schedule property in occupation of the plaintiff.
.2. The plaintiff pleaded that she is absolute owner of suit property and she acquired it through the registered Gift Deed on 17.11.2006 executed by her husband- K.N.Gopal. The Khata of property was transferred in her name and she is paying taxes and also exercising her right of ownership over the property. It is averred that husband 4 OS.3983/2012 of plaintiff inducted the defendant as tenant in a hind portion of schedule 'A' property, measuring 9.6 feet X 8 feet on monthly rent of Rs.250/- and now, it is Rs.500/- per month. The plaintiff averred that there is no written Lease Agreement between herself an dismissed. The defendant has paid the rent up to December, 2010 and thereafter has failed to pay the rent inspite of her request and reminder. Therefore, plaintiff demanded to pay rent or to quit and deliver vacant possession of the schedule property. The defendant agreed to deliver possession of schedule property within October, 2011, but fails to deliver the possession. The plaintiff averred that her family consisting of 5 members and accommodation to all is not sufficient, her children are attained majority and she has to make separate accommodation for their privacy, therefore, she is required the schedule property for her bonafide use. It is alleged that she requested the defendant for handing over vacant possession of the schedule property, but defendant did not heed to the request, therefore, plaintiff 5 OS.3983/2012 caused notice on 20.04.2012 calling upon the defendant to pay arrears of rent and to quit, deliver vacant possession of the schedule premises. The defendant received the notice and replied with untenable grounds on 11.05.2012. Further the defendant denied the relationship of Landlord and tenant between herself and defendant. The plaintiff further alleged that now, defendant is trying to induct third party in the schedule premises, therefore, she filed the suit for possession. Cause of action accrues to the plaintiff on 20.04.2012, the date on which she caused notice and on 11.05.2012 on which defendant sent reply to the notice.
.3. After appearance, defendant filed written statement contending that suit of the plaintiff is false, frivolous and not maintainable in law or on facts, as such, it is liable to be dismissed. The suit of the plaintiff is bad for non- joinder of necessary parties. No cause of action accrues to the plaintiff to file the present suit. The defendant denied the averments made out in Para-2 of the plaint as false. It 6 OS.3983/2012 is contended that schedule property exclusively belongs to father of plaintiff one Muniramu, who succeeded the property on demise of his wife in 2009. The defendant contended that schedule property was allotted to the wife of Muniramu by Grama Panchayath in 1971. Since the date of allotment, parents of plaintiff are in physical possession and have built up a house as per sanctioned plan issued by Grama Panchayath and are residing in the said premises. The defendant averred that the documents produced by plaintiff are created and bogus. There is no relationship of landlord and tenant between plaintiff and defendant. The defendant denied the averments made out in Para-3 of the plaint as false. It is denied that defendant occupied the schedule premises as tenant agreeing to pay Rs.250/- per month. Further defendant denied of paying the rent up to 2010. The defendant averred that plaintiff is not owner of property. The husband of plaintiff being brother of defendant's father managed to create the documents. In this regard, father 7 OS.3983/2012 of defendant lodged complaint against husband of plaintiff. The defendant denied the averments made out in Para-4 of the plaint as false. The defendant admits receipt of notice sent by plaintiff and she has replied to said notice suitably. The defendant averred that she is residing in a house bearing No.352 in a hind portion along with her father as an absolute owner and the documents of the property stand in the name of father of defendant. The defendant averred that the Court has no jurisdiction to try the suit. The valuation and Court fee paid by the plaintiff is not correct. The defendant pleaded that schedule property is self-acquired property of her mother. The property was allotted by Government, after allotment, the parents of defendant have constructed house by obtaining sanctioned plan, licence from Village Panchayath. The defendant is in possession of the property as an absolute owner as well as legal heir of Muniramu and Gowramma. After the death of Gowramma, the name of Muniramu entered in the Revenue Records of the property. Now, the defendant is in 8 OS.3983/2012 possession of the property and is paying taxes. The defendant contended that the husband of plaintiff has no right to execute Gift Deed in favour of plaintiff. The husband of plaintiff is not owner of the property. The husband of plaintiff has created a Will Deed in respect of the schedule property alleged to be executed by father of plaintiff. The husband of plaintiff by submitting false report, managed to create documents and claims to be the owner of the property. The defendant averred that father of defendant and father of plaintiff's husband is one and the same and is alive even today. Therefore, the question of husband of plaintiff become owner based on the Will, does not arise. On these grounds and substances prayed for dismissal of the suit.
.4. On the basis of pleadings, the following issues are framed:
1. Whether plaintiff proves that she is the owner of the suit schedule property?9 OS.3983/2012
2. Whether defendant proves that she is in possession of the suit property on her own right as legal representative of Gowramma W/o. Muniraju?
3. Whether there exists relationship of landlord and tenant between the plaintiff and defendant?
4. Whether suit is bad for non-joinder of necessary parties?
5. Whether plaint is liable to be rejected under Order 7 Rule 11 of CPC?
6. Whether this Court has no jurisdiction to try this suit?
7. Whether suit is not properly valued and Court fee paid is insufficient?
8. Whether the plaintiff is entitled to the reliefs sought for?
9. What order or relief?
.5. To prove and substantiate respective contentions, the plaintiff has been examined through General Power of Attorney as PW.1 and got marked in all 24 documents at Exs.P.1 to 24. The defendant also examined herself 10 OS.3983/2012 through GPA and got marked in all 15 documents at Exs.D.1 to D.15 .6. Heard the arguments.
.7. The above issues are answered for the reasons, findings given in the foregoing discussions:
REASONS .8. ISSUES No.1 TO 3: These issues are inter- connected and depending on each other, therefore, to avoid repetition on each issue, they are taken up jointly for consideration.
.9. The plaintiff contended that she acquired schedule property through Gift Deed executed by her husband - K.N.Gopal on 17.11.2006. Khata of the schedule property has been transferred in her name and she is paying tax to the property. Her husband -K.N.Gopal inducted the defendant as tenant in a hind portion of schedule property 11 OS.3983/2012 for monthly rent of Rs.250/-, now, it is Rs.500/-. No written Agreement was prepared in respect of the suit property. The defendant has paid rent up to December, 2010, thereafter, she has not paid the rent, therefore, she requested the defendant to pay the rent. Ultimately, she caused notice on 20.04.2012 to defendant calling upon her to pay arrears of rent and to quit and deliver vacant possession of the schedule premises. On the other hand, the defendant contended that suit property was allotted to the mother of defendant Gowramma by the Grama Panchayath. Thereafter, parents of defendant have constructed house by obtaining plan and licence. Now, she is residing in the property as an owner and also legal heir of her parents. There is no relationship between herself and plaintiff as landlord and tenant in respect of the schedule property. The plaintiff by creating and fabricated the documents filed the suit in order to grab the property. To substantiate respective contentions, plaintiff 12 OS.3983/2012 and defendant examined through their Power of Attorney holders and produced documents.
.10. Power of Attorney holder of plaintiff filed affidavit in lieu of chief-examination by reiterating the averments made out in the plaint and has been examined as PW.1. The plaintiff produced Gift Deed dated 17.11.2006 (Ex.P.2), Khata Certificate, Khata Extract (Exs.P.3 & 4), Tax Paid Receipt (Ex.P.5), Khata Extract (Ex.P.7), Approved Plans (Exs.P.9 & 10), Certified copy of Partition Deed (Ex.P.13), Encumbrance Certificates (Exs.P.14 & 15), Judgment and decree passed in OS.55/1986 on the file of City Civil Court (Exs.P.16 & 17). Certified copy of plaint in OS.7200/2012 on the file of City Civil Court, Bengaluru (Ex.P.18), Endorsement issued by BBMP (Ex.P.20), Death Certificate (Ex.P.21). On perusal of Gift Deed (Ex.P.2), it reveals that husband of plaintiff Gopal has gifted the property bearing No.308/1 situated in Ward No.67, having BMP No.4, PID No.67-44-8, situated in 1st Cross, New 13 OS.3983/2012 Model Harijana Colony, Koramangala, Bengaluru. The document further reveals that executant of Gift Deed acquired the property through registered Will Deed executed by his father Nagappa. Khata Extract (Ex.P.7) reveals that Khata of the property was standing in the name of executant of the Gift Deed i.e., K.N.Gopal. The Khata Certificate and Khata Extract (Exs.P.3 & 4) reveal that Khata of the schedule property has been transferred in the name of plaintiff. The tax paid receipt discloses that plaintiff has paid tax to the Corporation. The Partition Deed (Ex.P.13) reveals that there was a partition in respect of the property No.308 and 255 between wife of Maddurappa and Nagappa the brother of Maddurappa. Further this document reveals that Nagappa got 'B' schedule property and the wife of Maddurappa got 'A' schedule property shown in the Partition Deed. The Encumbrance Certificate (Ex.P.14) for the period 01.04.1970 to 01.08.1996 discloses that transaction in respect of the property bearing Khaneshumari No.308 and 14 OS.3983/2012 255 is made in the name of Muniyamma and Nagappa.
The judgment and decree (Exs.P.16 & 17), it reveals that it is between N.Gowramma and K.N.Gopal, K.N.Narayana sons of Nagappa in respect of the property bearing House No.352 built on site No.30 of Koramangala, measuring 15 feet X 45 feet, bounded on the East by : Bhovi Dasappa, West by : House of Ramaiah, North by : House of Nagappa, South by : Colony Road. Order sheet and plaint copy in OS.No.7200/2012 (Exs.P.18 & 19) reveals that one Muniramu filed the suit against present plaintiff and K.N.Gopal in respect of the property bearing House No.352, site No.30, Khata No.1, BBMP PID No.67-44-1, measuring East to West 15 feet, North to South 40 feet, situated at New Model Harijan Colony, Koramangala. .11. In the cross-examination PW.1 states that he is retired constable and one Muniramu is his brother. Further he states that site No.255 was allotted to his father. Further PW.1 states that he acquired schedule property 15 OS.3983/2012 through Will Deed executed by his father. He states that his father executed the Will in the year 1992. Further he states that his father was missing since 12.05.1993, he had lodged complaint with Police regarding missing of his father and his father still not traced. He had obtained decree from the Court in respect of civil death of his father. PW.1 admits that he has four brothers. He further states that his father executed Will in his name in 1992 and he executed Gift Deed in 1997 in favour of his wife plaintiff. PW.1 states that he has not produced any document to show that defendant is tenant under him. He asserts that the Agreement is oral one. PW.1 denied the suggestion that Khata in respect of the property No.308 is not in the name of his father. PW.1 admits that the documents Exs.D.4 & 5 in the name of K.N.Muniramu. Further he admits that document produced at Ex.D.6 is in the name of Gowramma. PW.1 denied the suggestion that schedule property is a vacant site, but, asserts that there is sheet house in the property.
16 OS.3983/2012.12. The defendant examined through General Power of Attorney holder as DW.1. In the affidavit he states that plaintiff is no way concerned to the premises of defendant and it is self-acquired property of Gowramma w/o. K.N.Muniramu. The property having site No.30, which was allotted by Panchayath to Gowramma, measuring 15 X 40 feet in the year 1977 and as per approved plan, sheet house was built up and Panchayath assigned House List No.352 in the name of Gowramma. Further DW.1 states that defendant at no point of time is tenant under jp; or is in illegal possession of the property. Further states that schedule property totally belongs to Gowramma not to plaintiff or Nagappa. The plaintiff is falsely claiming the property by creating documents. After the death of Gowramma, Muniramu become the owner of property and gifted the property to Narendranath, who is present owner and Khatha holder.
17 OS.3983/2012.13. The defendant produced the Extract of Demand Register, Photographs, Khata Extract, Receipts, Khata Certificate, Tax Paid Receipt , Electricity bill paid receipts (Exs.D.1 to 6). On perusal of these documents, it discloses that the Tax Demand Register Extract (Ex.D.1) reveals that it is in respect of the property bearing No.255/1 which stands in the name of Nagappa S/o. Motappa. The Khata Extract (Ex.D.4) reveals that property bearing Municipal No.1, PID No.67-44-1 stands in the name of K.N.Muniramu. The Khata Certificate, Khata Extract (Exs.D.9 & 10) reveals that this property is standing in the name of M.Narendranath. Tax Paid Receipts (Exs.D.5 & 6) reveals that K.N.Muniramu paid the tax in respect of the property No. PID No.67-44-1. Tax Paid Receipt (Ex.D.11) reveals that Narendranath has paid the tax. .14. In the cross-examination he states that defendant is his mother. Further he states that he has produced Ration Card to show that himself and his mother are 18 OS.3983/2012 residing in the address given in the affidavit filed in lieu of chief-examination. In the chief-examination, the address has been given at Old No.352, PID No.1, 1st Cross, 1st Main, New Model Harijan Colony, Koramangala. He denied the suggestion that the defendant now is residing in the address at Door No.255, 1st 'B' Main Road, 8th Block, Koramangala. DW.1 admits that he is residing in House No.308, the house consisting of only one room, measuring 10 X 10 feet. Further he states that he do not know whether plaintiff is in possession remaining extent of House No.308. DW.1 denied the suggestion that defendant is the tenant under plaintiff. He also denied that Narendranath is not owner of property bearing No.308. Further he states that he do not know whether Narendranath is owner of property bearing House No.1 or not. DW.1 denied the suggestion that schedule 'B' property originally belongs to husband of plaintiff and defendant was tenant under him by paying monthly rent of 19 OS.3983/2012 Rs.250/-. He also denied the suggestion that defendant agreed to vacate 'B' schedule property in the year 2011. .15. On going through the pleadings, evidence of oral and documents, it reveals that plaintiff filed the suit in respect of the portion of property bearing old No.308, new No.8, present BBMP No.13, old PID No.67-44-8, new PID No.147-W0196-13, measuring 15 X 40 feet. The plaintiff claimed that she acquired this property through a Gift Deed executed by her husband K.N.Gopal on 17.11.2006. Khata of the property also transferred in her name. The defendant in the pleadings contended that schedule property is the exclusive property of mother of defendant by name Muniramu, who succeeded to the property after demise of mother of plaintiff in 2009. Further states that wife of Muniramu acquired the property in the year 1971 since the Government allotted it. Further the defendant contended that schedule property is not belongs to plaintiff. The husband of plaintiff is brother of defendant's 20 OS.3983/2012 father managed to create documents. Further it is contended that defendant is residing in the house property bearing No.352 in hind portion along with father as an absolute owner. The contention of plaintiff and defendant are not one and the same, they are in respect of different property. The plaintiff claims her right, title and interest in respect of the property bearing old No.308 having PID No.147-W0196-13. The defendant claims his right and interest in respect of the House property bearing No.352. The pleadings of defendant are inconsistent and contrary to existing facts and circumstances of the case. On perusal of judgment and decree passed in OS.55/1986 (Ex.P.16), it reveals that one Gowramma wife of Muniramu had filed the suit against husband of plaintiff K.N.Gopal and another for declaration and for possession in respect of the house property No.352 built on site No.30. On perusal of Ex.P.18, which is certified copy of Order sheet and plaint in OS.7200/2012 reveals that Muniramu filed the suit seeking eviction and vacant possession of the property 21 OS.3983/2012 bearing No.352, PID No.67-44-1 against plaintiff and her son K.N.Gopal. These two documents though not relevant to decide the matter in dispute, but, it will demonstrates the fact that defendant claims her right and interest in respect of the house property bearing No.352 having PID No.67-44-1. The plaintiff claims her right and interest in respect of; the property bearing Municipal No.8, PID No.67-44-8. Therefore, it is clear that the property claimed by plaintiff and defendant are not one and the same, but they are altogether different.
.16. On perusal of Ex.P.13, which is a Partition Deed discloses that one Motappa had two sons Maddurappa and Nagappa. Further he possessed the property bearing No.255 and 308 at Harijan Colony, Koramangala. There was a partition in respect of these properties between Nagappa and Muniyamma wife of Maddurappa. In the said partition, Nagappa acquired his share on the eastern side portion of property No.255 and 308. Muniyamma wife 22 OS.3983/2012 of Maddurappa acquired western side portion of property Nos.255 and 308. Further on perusal of certified copy of Will Deed, though produced, but not marked as an exhibit in this case discloses that Nagappa had 5 sons namely- K.N.Chinnaswamy, K.N.Muniramu, K.N.Krishna, K.N.Narayana, K.N.Gopal. In the Will Deed it is recited that property bearing No.255/1 bequeathed to K.N.Krishna and K.N.Narayana. Further property bearing No.308/1 bequeathed to K.N.Gopal. In the said Deed it is mentioned that property bearing No.427 and 306 situated in Harijan Colony, Koramangala belongs to him has given to his sons Chinnawamy and K.N.Muniramu.
.17. The suit property bears old No.308, new No.8, BBMP No.13, PID No.67-44-8 (old), new PID No.147-W0196-13. The defendant claims that she is residing in House No.352, not House No.308. As earlier stated schedule property is bears No.308, the property claimed by defendant i.e., property No.352 is not subject matter of the suit. 23 OS.3983/2012 Therefore, the contention of defendant regarding her right, title and interest in respect of the property bearing No.352 cannot be considered in this case. Now, the point for consideration is whether plaintiff is owner of schedule property or not and is there any relationship of landlord and tenant between them in respect of the suit property or not. As far as ownership of the property is concerned, the plaintiff produced Gift Deed (Ex.P.2), which discloses that her husband K.N.Gopal gifted the property bearing No.308/1, BBMP No.4 PID No.67-44-8, measuring East to West 15 feet North to South 40 feet on 17.11.2006 through registered Gift Deed. As earlier mentioned one Nagappa S/o Motappa had five sons including K.N.Gopal (husband of plaintiff), K.N.Muniramu (father of defendant). As per Partition Deed produced at Ex.P.13 in this case discloses that said Nagappa acquired property bearing No.308 and 255. PW.1, who is Power of Attorney holder of plaintiff and son of said Nagappa in his evidence stated that during lifetime of his father Nagappa in the year 1992 24 OS.3983/2012 has bequeathed schedule property to him. By virtue of the Will Deed, he become the owner and executed Gift Deed in the name of his wife i.e., plaintiff. The Khata Certificate, Khata Extract discloses that the schedule property stands in the name of plaintiff. The materials on record are sufficient to hold that plaintiff by producing oral and documentary evidence has established that she is the owner of property. No where, the defendant claimed that she is the owner of schedule property bearing No.308. Further the plaintiff pleaded and contended that her husband inducted defendant as tenant in schedule 'B' property i.e., hind portion of schedule 'A' property on monthly rent of Rs.250/-, now, it is increased to Rs.500/-. Further it is contended that no written Agreement of Lease is between her and defendant. The defendant paid rent up to December, 2010, thereafter has failed to pay the amount, therefore, she asked defendant to quit and deliver vacant possession of schedule 'B' property. Further the plaintiff contended that defendant agreed to deliver the 25 OS.3983/2012 possession within October, 2011, but fails to vacate the same, therefore, she constrained to file the suit. The defendant has denied the relationship of plaintiff with her in respect of the schedule property. On the other hand, defendant contended that schedule property exclusive belongs to her mother. After demise of her mother, her father succeeded to the property in 2009. Further the defendant contended that the property held by her bears Khaneshumari No.352, PID No.67-44-1. The plaintiff produced Khata Certificate and Khata Extract in respect of the property bearing new No.8 having PID No.67-44-8. The defendant produced Khata Extract, Khata Certificate in respect of the property bearing No.1 having PID No.67-44-
1. The documents produced by plaintiff and defendant are altogether different. The plaintiff claims her right in respect of the property No.308/1, PID No.67-44-8, which is schedule property. Regarding possession of schedule 'B' property is concerned; plaintiff claimed that defendant is tenant of schedule 'B' property under her. The defendant 26 OS.3983/2012 denied the relationship. Therefore, considering relationship in respect of schedule property, it is just and necessary to consider in whose possession schedule property is. DW.1 in the evidence admits that he is the son of DW.1. He has given his residential address at No.352, PID No.1, 1st Cross, 1st Main, New Model Harijan Colony, Koramangala. In the cross-examination he admits the suggestion that he is residing in house No.308 and the house consists of one room measuring 10 X1 10 feet. Further he states that the house No.308 totally measures 15 X 40 feet. Further he states that he do not know whether plaintiff is in possession of remaining extent of house No.308 or not. Further he asserts that the property where the defendant is residing belongs to one Gowramma. Further he states that one Narendranath is not the owner of property bearing No.308. Further he states that he do not know whether Narendranath is owner of property bearing House No.1. The documents of defendant goes to show that House No.1, PID No.67-44-1. 27 OS.3983/2012 Earlier Khata was in the name of father of defendant Muniramu (Ex.D.4), now it is in the name of M.Narendranath (Exs.D.9 & 10). The property claimed by defendant now stands in the name of said Narendranath. The Xerox copy of Gift Deed produced by defendant in this case discloses that said Narendranath is none other than son of Muniramu. The defendant is not in possession of property bearing No.1 having PID No.67-44-1. The evidence of DW.1 reveals that defendant is residing in House No.308, it is schedule property. The plaintiff by placing reliable documents has established that she is owner of the property bearing No.308. The defendant except denying the contention of plaintiff has not placed cogent and reliable material to show that House No.308 belongs to her. When defendant is not the owner of property bearing No.308, for which plaintiff is the owner, has to say on what basis she is in possession of property bearing No.308. The plaintiff in the pleadings and evidence clearly stated that there is no written Lease 28 OS.3983/2012 Agreement between herself and defendant in respect of schedule 'B' property and it is an oral Agreement. The contention of plaintiff seems to be reasonable to accept as to defendant is inducted as tenant in the suit property. The plaintiff stated that initially, defendant used to pay Rs.250/- and now it is Rs.500/-. The defendant paid rent up to December, 2010, thereafter, has not paid. The evidence of DW.1 clear that defendant is in possession of schedule 'B' property. In the absence of her source of title to the schedule 'B' property, this Court hold that defendant is in possession of property as a tenant. The plaintiff contended that when defendant fails to quit and vacate the schedule 'B' property, she got issued notice on 20.04.2012 calling upon the defendant to pay arrears of rent and to quit and deliver vacant possession of the schedule premises. The notice has been served, but the defendant gave evasive reply to said notice. As per Sec.106 of Transfer of Property Act, in case of lease of immovable property, in the absence of contract or usage 29 OS.3983/2012 to the contrary, a lease for agricultural or manufacturing purpose shall be deemed to be a lease from year to year terminable on the part of either LESSOR or LESSEE by 6 months' notice and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month terminable on the part of either LESSOR or LESSEE by 15 days notice. In the present case, schedule 'B' property is not an agricultural land. The schedule property is not a manufacturing premises, schedule 'B' property is a residential house. Further Sec.107 of Transfer of Property Act speaks abut making of lease. In case of a lease for immovable property from year to year or for any term exceeding one year or reserving an yearly rent can be made only by a registered instrument and all other leases of immovable property may be made either by a registered instrument or by oral Agreement accompanied by delivery of possession. In the present case, plaintiff has specifically contended that there is no written Lease Agreement between herself and defendant in respect of 30 OS.3983/2012 schedule 'B' property. Further as per evidence of DW.1, defendant is in possession of schedule 'B' property. On considering all these circumstances, this Court finds that defendant is in possession of the schedule property as a tenant under plaintiff. Therefore, for all these reasons, this Court answered Points No.1, 3 in the affirmative, 2 in the negative.
.18. POINT NO.4:- The defendant contended that suit is bad for non-joinder of necessary parties. The plaintiff filed the suit for Ejectment and possession of schedule 'B' property contending that she is owner of schedule property by virtue of Gift Deed dated 17.11.2006 executed by her husband Gopal. It is specific contention of the plaintiff that her husband inducted defendant in schedule 'B' property on monthly rent. The defendant though contended that schedule property belongs to her mother Gowramma, but has failed to establish the fact that Gowramma was owner of schedule 'B' property. Except 31 OS.3983/2012 plaintiff ad defendant, no other party is having any right and interest in the schedule property. Therefore, the contention of defendant as to suit is bad for non-joinder of necessary parties cannot be accepted. Except plaintiff and defendant no one neither necessary nor proper party to this suit. Therefore, Issue No.4 is answered in the negative.
.19. ISSUE NO.5:- The defendant in the written statement contended that suit is not maintainable, as such, it is liable to be rejected U/Or.VII Rule 11 CPC. Except pleading this fact, defendant has not placed any material to substantiate the contention. In this case, the plaintiff pleaded and contended that she is the owner of property and defendant is tenant. She got issued notice on 20.04.012 terminating the tenancy and demanded vacant possession from defendant. As the defendant fails to quit, vacate and handover vacant possession of schedule property, she filed the suit. The plaintiff has shown cause 32 OS.3983/2012 of action for filing the suit. Or.VII Rule 11 speaks about rejection of plaint. The plaint shall be rejected where it does not disclose a cause of action or where the relief claimed is under valued, and the plaintiff, on being required by Court to correct the valuation within a time to be fixed, fails to do so, where relief claimed is properly valued, but, plaint is written upon paper insufficiently stamped, and plaintiff on being required by Court to supply the requisite stamp paper within a time to be fixed by Court, fails to do so or where suit appears from the statement in plaint to be barred by any law. Among any one of the requirements of Or.VII Rule 11 is available, plaint is to be rejected. In this case the plaintiff filed the suit based on a valid cause of action, therefore, both parties have proceeded with trial of the case. Therefore, consideration of this suit does not arise and hence, Issue No.5 is answered in the negative.
33 OS.3983/2012.20. ISSUE NO.6:- The defendant contended that this Court has no jurisdiction to try the suit. The defendant in Para-8 of the written statement contended that the Court has no jurisdiction to try the case, since the alleged measurement of schedule property is below 240 sq. feet and alleged rate of rent also below 1,400, therefore, the suit of the plaintiff is to be dismissed. The defendant except pleading has not whispered in the evidence in this regard. Further the defendant has not placed any material how this Court has no jurisdiction to try this suit. In the absence of cogent and reliable material on record, this Court finds that the contention of defendant cannot be accepted. The defendant has failed to prove that this Court has no jurisdiction to entertain the suit and hence, Issue No.6 is answered in the negative.
.21. ISSUE NO.7:- The plaintiff valued the schedule 'B' property for Rs.1,60,000/- and paid Court fee of Rs.10,900/- by valuing the same U/S.29 of the Karnataka 34 OS.3983/2012 Court Fees & Suit Valuation Act. The defendant in Para-10 of the written statement contended that market value of schedule property Rs.4,000/- per sq. ft., therefore, the valuation made by plaintiff and Court fee paid thereon is not correct. The defendant except contending that the property is having value of Rs.4,000/- per sq. ft. has not placed any acceptable material in support of the contention. In the absence of specific proof of market value of the property, this Court finds that the valuation arrived by plaintiff is to be held as correct and proper. Therefore, this Court answered Issue No.7 in the negative.
.22. ISSUE NO.8:- For the reasons, findings given while answering above issues, this Court comes to the conclusion that the plaintiff proved that she is owner of schedule property bearing No.308, new No.8, BBMP No.13, old PID No 67-44-8, new PID No.147- W0196-13, measuring 15 X 40 feet. Further the plaintiff 35 OS.3983/2012 proved that schedule 'B' property, which is part of schedule 'A' property is in possession of defendant. The plaintiff also proved that the defendant has been inducted as tenant of schedule 'B' property. Further the plaintiff proved that defendant fails to pay the amount, as such, terminated the oral lease in respect of schedule 'B' property entered with defendant by issuing notice. Inspite of it, defendant fails to handover vacant possession of schedule property. The plaintiff being owner of schedule has validly terminated the tenancy in respect of the schedule 'B' property. The defendant has no right to remain in possession of schedule 'B' property, therefore, the defendant is to quit and handover vacant possession of schedule 'B' property. The plaintiff is entitled for the relief claimed. Therefore, for these reasons, Issue No.8 is answered in the affirmative.
.23. ISSUE NO.9:- In the result, this Court proceeds to pass the following:
36 OS.3983/2012
ORDER Suit is decreed with costs.
The defendant is directed to quit and handover vacant possession of schedule 'B' property to the plaintiff within 3 months.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, the transcript print is corrected and then pronounced by me in the th open court on this the 13 day of April 2018.) (RAVINDRA. M. JOSHI) XL Addl. City Civil & Sessions judge, Bengaluru.
ANNEXURE WITNESSES EXAMINED ON BEHALF OF PLAINTIFF:
PW.1 -K.N.Gopal S/o. Late Nagappa.
DOCUMENTS PRODUCED ON BEHALF OF PLAINTIFF:
Ex.P.1 General Power of Attorney.
Ex.P.2 Gift Deed dated 17.11.2006.
Ex.P.3 Khata Certificate.
Ex.P.4 Khata Extract.
37 OS.3983/2012
Ex.P.5 Tax Paid Receipt.
Ex.P.6 Acknowledgment.
Ex.P.7 Khata Extract.
Ex.P.8 Special Notice dated 30.08.2006.
Ex.P.9 Tax Paid Receipt.
Ex.P.10 Approved Plan.
Ex.P.11 Reply notice dated 15.11.2012.
Ex.P.12 Certificate dated 18.04.2012.
Ex.P.13 Certified copy of Partition Deed.
Ex.P.14 & Encumbrance Certificates.
Ex.P.15
Ex.P.16 Certified copy of judgment in
OS.No.55/1986.
Ex.P.17 Certified copy of decree in OS.No.55/1986.
Ex.P.18 Certified copy of Order Sheet in
OS.7200/2012.
Ex.P.19 Certified copy of plaint in OS.7200/2012.
Ex.P.20 Endorsement dated 15.11.2012.
Ex.P.21 Copy of Death Certificate A.Nagappa.
Ex.P.22 to Aadhar Card of defendant, her son and
Ex.P.24 Bank Passbook.
WITNESSES EXAMINED ON BEHALF OF DEFENDANT:
DW.1 -B.S.Manjunath S/o. Sharada.
DOCUMENTS PRODUCED ON BEHALF OF DEFENDANT:
Ex.D.1 Demand Register Extract.
Ex.D.2 & Photographs
Ex.D.3
Ex.D.2(a) & Relevant portions.
Ex.D.3(a)
Ex.D.4 Holder Khata.
Ex.D.5 Tax Paid Receipt in respect of PID
No.67.44.1.
38 OS.3983/2012
Ex.D.6 Receipt in respect of property No.352 for
the yea 1986 stands in the name of
Gowramma.
Ex.D.7 General Power of Attorney executed by
defendant.
Ex.D.8 Copy of notice sent by one
M.Narendranath.
Ex.D.9 Khata Certificate of property bearing
Municipal No.1.
Ex.D.10 Khata Extract.
Ex.D.11 Tax Paid Receipt.
Ex.D.12 & Electricity charges pair receipts. Ex.D.13 Ex.D.14 Electricity connection order. Ex.D.15 Acknowledgment issued by KPTCL.
(RAVINDRA. M. JOSHI) XL Addl.City Civil & Sessions judge, Bengaluru.39 OS.3983/2012
13.04.2018 P - N.M.N.G., D - R.C.P., (Judgment pronounced in the open For Judgment. Court vide separate order.) ORDER Suit is decreed with costs.
The defendant is directed to quit and handover vacant possession of schedule 'B' property to the plaintiff within 3 months.
Draw decree accordingly.
XL.ACC & SJ Bengaluru.