Bangalore District Court
Sri.T.Shivakumar vs M/S.Hindustan Petroleum Corporation ... on 15 December, 2016
C.R.P.67 Government of Karnataka
TITLE SHEET FOR JUDGMENTS IN SUITS
Form No. 9
IN THE COURT OF THE SMALL CAUSES AT
(Civil)
Title Sheet BANGALORE.
for Present: Sri.A.SAMIULLA, B.Sc LL.B.
Judgment XIX Addl SCJ, MACT & XLI ACMM,
in Suits
(R.P.91)
Bangalore.
S.C.No.1435/2012
Plaintiffs: 1. Sri.T.Shivakumar,
S/o Thammegowda,
52 years,
R/at No.32, Bysani Enclave Apartment,
Shankar Mutt Road, Shankarpuram,
Basavanagudi,
Bangalore-04.
2. Sri.A.Manju,
S/o Annegowda,
54 years,
Residing at No.37, 7th Cross,
Lavelle Road,
Bangalore-01.
3. Sri.Venkataramu,
S/o Shivappa,
60 years,
Residing at No.321, 13th Cross,
2nd Stage, Mahalakshmipuram,
West of Chord Road,
Bangalore.
4. Sri.B.P.Naveen,
S/o Late puttaswamy Gowda,
33 years,
Residing at Bagur,
Channarayapatna Taluk,
Hassan District.
(By Sri.DRR)
SCCH 17 2 SC. No.1435/12
-Vs-
Defendant: 1. M/s.Hindustan Petroleum Corporation Ltd.,
No.1, Dr.Ambedkar Veedhi,
Indian Express Building, 4th Floor,
Bangalore-560 001.
R/by it's Managing Director.
2. M/s. Hindustan Petroleum Corporation Ltd.,
Regional Office, K.R.Puram,
Bangalore,
R/by the Chief Regional Manager,
3. Sri.A.M.Samiulla,
S/o Amanulla Mecci,
No.1799, 14th Main,
HBR Layout, 5th Block,
Bangalore-560043.
(D-1 & 2 by Sri.MSN
D-3 by Sri.NS)
Date of Institution of the Suit: 15-09-2012.
Nature of the Suit: Ejectment suit.
Date of the commencement of
Recording of the evidence: 22.06.2013.
Date on which judgment
Was pronounced: 15.12.2016.
Total Duration: Year/s Month/s Day/s
04 03 00
(A.Samiulla)
XIX ADDL.JUDGE.
SCCH 17 3 SC. No.1435/12
J U D G M E N T
Suit is for ejectment.
2. In judgment dated 25.9.2014 the suit was decreed, which was impugned in CRP.No.1/2015 C/W CRP.No.497/2014, wherein the judgment was set aside and matter was remanded for fresh disposal. After remand plaintiffs did not adduce evidence. Third defendant adduced further evidence.
3. The say of plaintiff is that, the property bearing No.47, 47/1, 47/2, 47/3 and 47/4 measuring 1,13,117 square feet is situated in the Industrial Subrub of Yeshwanthour, earlier its number was Sy.No.45/1 and 45/2 of Yeshwanthpura village. A portion of the property was leased in favour of M/s. Caltex (India) Limited for carrying out the business of petroleum products, service of motorcycles and automobiles with the lessee entitled to under let or grant SCCH 17 4 SC. No.1435/12 licence in relation to portion leased which was delineated in the plan enclosed with the lease deed and described in schedule to the lease deed, which is the suit property.
4. M/s.Caltex (India) Limited was acquired by the Central Government under Caltex acquisition of Shares of Caltex Oil Refineries (India) Limited and of the undertaking of M/s.Caltex India Limited Act, 1977. Said Act envisages that, the rights under any lease or tenancy held by M/s.Caltex (India) Limited vested in the Central Government on the same terms and conditions and the Central Government under the provisions of said Act has directed vesting of such undertakings in a Government Company which is the first defendant. By virtue of this first defendant became the tenant or lessee in respect of the schedule property during the tenure of ten years lease period of registered lease deed dated 2.4.1970 and the SCCH 17 5 SC. No.1435/12 lease continued on the same terms and conditions and an option was given to the Central Government that it may renew or continue with the same terms and conditions for another term. The lease continued for another term i.e., ten years from 2.4.1980 to 2.4.1990 and the rents were accepted on monthly basis. Under the registered lease deed dated 22.7.1970 the schedule property was underlet to one Sri.A.M.Samiulla (D-3) and the duration is also completed.
5. In the family of erstwhile owner Mrs. Rashida Begum a dispute was crop up, resulted in filing OS.No.1252/1986 and ended in settlement. During said period first and second defendants stopped paying rents. The copy of compromise decree passed in OS.No.1252/1986 sent to the first defendant on 10.10.2005 and on 4.2.2006 requesting to deliver possession but to no use.
SCCH 17 6 SC. No.1435/12
6. The plaintiffs purchased the schedule property in two bits (3/4th & 1/4th) under two sale deeds dated 21.2.2007 and katha was mutated in their names. It was intimated to the first and second defendants under letter dated 28.1.2011 and requested them to vacate the property but they failed to do so. They have not paid the rent from January, 2007. Hence, they issued notice dated 1.2.2011 that the tenancy is terminated with effect from 28.2.2011 and demanded them to quit and deliver vacant possession of suit property. The first defendant replied the notice raising untenable contention. Second defendant was a sub-lessee and the duration of sub-lease dated 22.2.1970 is also completed. Thus defendants are in unlawful occupation of the schedule property. Hence, suit is filed.
7. First and second defendants resisted the suit by filing written statement. They contended that there is jural SCCH 17 7 SC. No.1435/12 relationship between them and plaintiffs. Suit for ejectment is not maintainable, as the plaintiffs have to file suit for recovery of possession. The approximate area of 10,000 square feet (three pieces of land in Sy.No.45/2) was leased to them by Sri.Abdul Haleem and others. Area of 100x100x80x90 feet from 1.4.1967 for rent of Rs.250/- per month. Area of 100x20 feet from 1.5.1967 for rent of Rs.200/- per month. Area of 100x37x108x30 feet from 1.5.1969 for rent of Rs.400/- per month. Said lands were leased pursuant to the lease agreement executed on 2.4.1970 by Rasheeda Begum in favour of M/s.Caltex (India) Limited, the Predecessor in interest of the defendant for the period from 1.4.1967 to 31.3.1962 and extendable for further period from 31.3.1977. One Rafiq Ahamed was receiving rents, based on the authorization made by Abdul Haleem and five others as per the affidavit dated 20.9.1995. After Rafiq Ahamed breathed his last, SCCH 17 8 SC. No.1435/12 Ms.Sameena Jabeen was authorised to collect the rents as per affidavit dated 12.6.2001. Accordingly defendant is paying rent. Defendant has been operating a retail petroleum outlet in the name and style of M/s.A.M.Samiulla i.e., third defendant. They never defaulted in payments of rents. Their lessors have not notified them about the alleged sale transaction. They have not received any notice to deliver vacant possession. No notice about attornment of tenancy is issued. They denied the sale transaction projected by the plaintiffs.
8. They admit that by virtue of vesting with the Central Government the first defendant became the tenant/lessee in respect of suit property and the duration of tenancy is ten years as per the registered lease deed dated 2.4.1970. They denied that the plaintiffs intimated them about the purchase of suit property by letter dated 28.1.2011. By SCCH 17 9 SC. No.1435/12 denying other plaint averments they pray to dismiss the suit.
9. The third defendant by filing separate written statement contended that, there is no jural relationship between him and the plaintiffs. He himself leased a portion of suit property in favour of the first defendant under lease deed dated 20.7.1970 and he is receiving rents from more than 42 years. His right over suit property was registered by the BBMP and transferred the katha in his name. He is paying taxes. There was no transaction between him and plaintiff and he never paid any amount to the plaintiffs or to their predecessor in title in respect of suit property either by way of rent or in any other mode.
His aunt Rashida Begum was the absolute owner of land bearing Sy.No.45/1 and 45/2 measuring 3 acres 8 guntas. She leased a portion of land measuring 100x80x90 SCCH 17 10 SC. No.1435/12 feet in favour of M/s.Caltex (India) Limited under a registered lease deed dated 2.4.1970. He is the son of Sajjida Begum, who is the elder sister of Rashida Begum, who is issueless; as such he was living with her taking her care. His aunt permitted him to construct building in a portion leased to M/s.Caltex (India) Limited in order to assist him in his venture and also permitted him to lease a portion of the land measuring 8500 square feet in favour of M/s.Caltex (India) Limited, as such he executed a registered lease deed dated 20.7.1970 in favour of M/s.Caltex (India) Limited for a period of ten years and he is receiving rents.
10. During the year 1976 Rashida Begum made an oral gift (Hiba) in his favour of the portion of property where he was running petrol bunk. Said fact is known to all the relatives of Rashida Begum and also M/s.Caltex (India) Limited. Katha SCCH 17 11 SC. No.1435/12 was transferred in his name and being absolute owner he is paying taxes and said property bears Municipal No.47/3A and 47/5. During the year 1977 M/s.Caltex (India) Limited was acquired by Central Government. Consequent upon the same lease hold rights held by M/s.Caltex (India) Limited came to be vested in M/s.Hindustan Petroleum Corporation Limited and it become the tenant of this defendant and was paying rents. He filed suit in OS.No.6365/2014 against the plaintiffs herein seeking declaration of title over suit property. There is serious dispute with regard to the title of plaintiffs, as such this Court lacks jurisdiction to entertain the suit. He is not a party in OS.No.1252/1986, as such it is does not bind him. Denying the other averments of plaint, he prays to dismiss the suit.
11. Following issues arise for consideration.
SCCH 17 12 SC. No.1435/12
ISSUES
1) Whether plaintiffs prove that jural relationship of landlord and tenant between plaintiffs and defendants?
2) Whether plaintiffs prove the termination of tenancy?
3) Whether plaintiffs are entitled for the reliefs as prayed?
4) What order or decree?
RE-CASTED ISSUES
1) Whether plaintiffs prove that they are the landlords and that the defendant No.1 and 2 are the tenants and defendant No.3 is sub-tenant of the plaint schedule property?
2) Whether the plaintiffs prove that the suit is maintainable?
3) Whether this Court has got jurisdiction to decide the rights of the plaintiffs?
4) Whether the plaintiffs prove that they have lawfully terminated the tenancy of the defendants by issuing valid quit notice under Section 106 of TPAct?
5) Whether the plaintiffs are entitled for the relief as prayed for?
6) What order?
SCCH 17 13 SC. No.1435/12
12. To prove the case, plaintiffs examined the first plaintiff as Pw.1 and documents Ex.P1 to 21 were marked. On the other hand first and second defendants examined their official as Dw.1 and documents Ex.D1 to 4 were marked. Third defendant examined his power of attorney as Dw.2 and documents Ex.D.5 to 17 were marked. Ex.D1, 18 and 19 were marked through the Pw.1.
13. Heard arguments from both sides.
14. Findings on the above issues are as follows:
Recast Issue-1: Affirmative. Recast Issue-2: Affirmative. Recast Issue-3: Partly affirmative. Recast Issue-4: Affirmative. Recast Issue-5: Entitled. Recast Issue-6: As per final order for the following;
REASONS
15. Re-cast issue-1: Plaintiffs asserted that they are the landlords and defendants-1 & 2 are tenants and third SCCH 17 14 SC. No.1435/12 defendant is the sub-tenant of suit property. Per contra the defendants denied it.
It is well settled that the burden of proof is on the person who asserts the facts in issue, not on the person who denies it. Thus the initial burden is on the plaintiffs to demonstrate their assertion.
16. On careful scrutiny of rival pleadings one can see that absolutely there is no dispute that Smt.Rashida Begum was the owner of suit property and the defendants-1 & 2 are the tenants under original owner. These facts can be gathered from the below narrated evidence.
i) Ex.D1 (marked though Pw.1 during cross-examination by defendants-1 & 2) is the certified copy of sale deed dated 24.2.1945 executed by Ramaswamy in favour of Rashida Begum in respect of land bearing Sy.No.45/2 SCCH 17 15 SC. No.1435/12 measuring 2 acres 4 guntas of land. Ex.D1 is an undisputed document.
ii) In cross-examination at page 7 the Dw.1 admits that Rashida Begum is the land lord and first defendant is tenant in suit property. At page 10 he admits that, Rashida Begum leased suit property and other two bits of property in favour of first defendant. The Dw.2 in evidence affidavit at para 4 stated that, Rashida Begum leased the suit property to M/s.Caltex India Limited.
iii) Ex.P1 is the certified copy of lease deed dtd.2.4.1970 executed by Rashida Begum in favour of M/s. Caltex India Limited in respect of property measuring 100x100x80+90 feet. Ex.P1 is an undisputed document.
17. In the instant case, it is undisputed that the tenancy vested in the central Government and the first defendant became the tenant in respect of suit property.
SCCH 17 16 SC. No.1435/12 The facts situation on hand depict that, there is no dispute that the Rashida Begum died issueless in the year 1979 and her husband predeceased her in the year 1946. In the year 1986 the family members of Rashida Begum filed OS.No.1252/86, wherein the property purchased by Rashida Begum from Ramaswamy is shown at suit schedule item-A. Said suit ended in compromise dividing the properties amicably as per compromise petition filed u/O 23 R 3 CPC (Ex.P12). In said suit preliminary decree was passed as per Ex.P15. In preliminary decree the third defendant herein is arrayed as defendant-47 and described as Yeshwanthepura Service Station, Proprietor A.M.Samiulla, Yeshwanthpura, Bangalore-22. Thereafter the plaintiffs-1 to 3, purchased 3/4th and 1/4th of the property under two registered sale deeds dated 21.2.07 (Ex.P5 & P8). In sale deeds the flow of title to the vendors is clearly narrated. Till this date the sale deeds hold the ground. Sale deeds appended with SCCH 17 17 SC. No.1435/12 sketch, which shows the exact location of suit premises/property. On the basis of sale deeds katha was mutated in the names of plaintiffs-1 to 3 as per document number six of Ex.P6 & Ex.P7. The documents-1 to 5 of Ex.P6 and Ex.P7 depict that the katha of property was in the name of Khaliq Ahamed and Rashida Begum. Ex.P20 is the certified copy of order sheet, decree and memorandum of settlement of OS.No.2495/07. Said suit was filed by one Abdul Rafeeq against the present plaintiffs-1 to 3 and their vendors, which ended in compromise holding that the present plaintiffs are the owners of property purchased under sale deed dated 21.2.2007.
18. It is worth to note that, though the third defendant contended that the vendors of plaintiffs obtained collusive decrees but till this date said decrees are not impugned and the same are reached finality.
SCCH 17 18 SC. No.1435/12 In cross-examination the Pw.1 at page 15 stated that, ¤ªÀÄä D¹ÛUÉ ¥ÀÇwð fAPï ²Ãmï ¥s¤ É ìAUï ªÀiÁr¢ÝÃj JAzÀgÉ ¸ÁQëAiÀÄÄ ¸ÀA¥ÀÇtð D¹ÛUÉ ªÀiÁr®è ¨ÉÃgÉ ¨ÁrUÉzÁgÀgÀÄ SÁ° ªÀiÁrzÀÝjAzÀ ²Ãmï ¥s¤ É ìAUï ºÁQzÉÝêÉ, DzÀgÉ ¥ÀæwªÁ¢UÀ¼ÀÄ ¥ÉmÉÆæÃ¯ï §APï ©lÄÖPÉÆnÖ®èzÃÉ EgÀĪÀÅzÀjAzÀ C°è ¥s¤ É ìAUï ªÀiÁr®è JAzÀÄ ºÉüÀÄvÁÛg.É ¤¦-5 gÀ°è£À D¹ÛAiÀÄ ZÉPÀÄ̧A¢UÀÆ ¸Àܼz À ° À è ªÁ¸ÀÛ«PÀ EgÀĪÀ ZÀPÀÄ̧A¢UÀÆ ªÀåvÁå¸À EzÉ JAzÀgÉ ¸ÀjAiÀÄ®è, £Á£ÀÄ Rjâ¹gÀĪÀ D¹ÛAiÀÄ «¹ÛÃtðzÀ°è 3£Éà ¥ÀæwªÁ¢AiÀÄ ¸Áé¢üãÀz° À ègÀĪÀ D¹Û M¼À¥q À ÀÄvÀÛzÉ JA§ §UÉÎ £À£Àß°è zÁR¯Áw E®è JAzÀgÉ ¸ÀjAiÀÄ®è. At page 18, ¤¦-5gÀ ¥ÀæPÁgÀ 3B4£Éà ¨sÁUÀzµ À ÀÄÖ D¹Û ªÀiÁvÀæ ªÀUÁðªÀuAÉ iÀiÁVzÉ JAzÀgÉ ¸ÀjAiÀÄ®è. At page 23, £À£Àß JgÀqÀÄ PÀæAiÀÄ¥ÀvÀæzÀ°è Rjâ¹gÀĪÀ ¸ÀévÀÄÛU¼ À ° À è ¥ÀæwªÁ¢-3 gÀªj À UÉ ¸ÉÃjzÀ ¸ÀévÀÄÛ ¸ÉÃj®è JAzÀgÉ ¸ÀjAiÀÄ®è. These suggestions fortified the contention of plaintiffs regarding purchase of suit property. Discussion supra makes it clear that the plaintiffs-1 to 3 purchased the suit property under registered sale deeds from the family members of Rashida Begum, who obtained the same as per decree passed in OS.No.1252/86. The purchasers SCCH 17 19 SC. No.1435/12 steps into the shoes of their vendors and they become landlords with all the rights and liabilities of the transferor landlord in respect of the subsisting tenancy. Thus the defendants-1 and 2 becomes the tenants of plaintiffs. It is argued that there is no attornment of tenancy. This contention is not tenable because the Section does not require that the transfer of the right of the landlord can take effect only if the tenant attorns to him. Attornment by the tenant is not necessary to confer validity of the transfer of the landlord's rights.
19. It is pertinent to note that the third defendant contended that he took care of Rashida Begum, who permitted him to construct building and other fittings in a portion leased to M/s.Caltex (India) Limited and also permitted him to lease a portion of the land measuring 8500 square feet in favour of M/s.Caltex (India) Limited, SCCH 17 20 SC. No.1435/12 accordingly he executed a registered lease deed dated 20.07.1970 in favour of M/s.Caltex (India) Limited and subsequently in the year 1976 Rashida Begum made an oral gift (Hibu) in his favour in respect of the portion where he was running the petrol bunk.
To demonstrate his contention the third defendant mainly relied on lease deed dated 20.7.1970 (Ex.P2). On careful scrutiny of Ex.P2 it is crystal clear that the third defendant is only a Caltex dealer. The Caltex (India) Limited is in possession of piece or parcel of land situated at Yeshwanthpur measuring 1) 100x100x80x90) ii) 100x37x 1010x30. The third defendant was a dealer for the Caltex (India) Limited products at the pump site in the said piece or parcel of land, which was erected with the previous permission of the Caltex (India) Limited, erected at his own expense and cost. In the said deed it is also indicated that the third defendant is the owner of building, other SCCH 17 21 SC. No.1435/12 structures, fittings and other facilities, which are referred as service station. It is stated that the third defendant has to remove and dismantle the service station whenever he was called upon to do so. The third defendant leased the said service station to the Caltex (India) Limited under the said deed. It is also stated that in the event of termination of lease deed entered between Rashida Begum and Caltex (India) Limited any arrangement by which the Caltex (India) Limited permitted the third defendant to put up the service station shall ipso facto be terminated and within a month the third defendant has to remove the structure and hand over the land. The recitals of Ex.P2 manifest that the third defendant is not owner of any portion of land. He erected the structure with the permission of Caltex (India) Limited.
20. The view expressed supra further fortified from the evidence of Dw.1 and 2. The Dw.1 in cross-examination at SCCH 17 22 SC. No.1435/12 page 9 admits that, petrol bunk is run through dealer. The first defendant permitted the firm A.M.Samiulla to construct sales building in the suit property. All the infrastructure of petrol bunk belongs to the first defendant. Except the dealership of petrol bunk and the permission to construct the building there is no other relationship between the first defendant and 3rd defendant. At page 10, there is no land pertaining to petrol bunk leased by Samiulla to the first defendant.
The Dw.2 in cross-examination at page 8 stated that, the defendants-1 and 2 are the tenants under Rashida Begum pertaining to suit property. He knows the contract between Samiulla and M/s.Caltex Company for the construction of building for the purpose of petrol bunk. He admits that Samiulla invested for the construction of building and Caltex Company is paying rent to him for the constructed building and Samiulla is a dealer of HPCL.
SCCH 17 23 SC. No.1435/12 The Dw.2 in Cross-examination dated 15.11.16 stated that, he know the contents of lease agreement executed by third defendant in favour of M/s.Caltex India Limited and for the construction of premises the rate of rent was Rs.400/- per month. In the lease deed executed by Rashida Begum in favour of M/s.Caltex India Limited the rate of rent was Rs.250/- per month. In the lease deed executed by Rashida Begum in favour of M/s.Caltex India Limited the rate of rent was Rs.250/- per month and subsequently it was enhanced to Rs.400/- per month. He admits that, as per Ex.P2 Rashida Begum leased the property in favour of M/s. Caltex India Limited. Third defendant executed a lease deed in favour of defendants-1 and 2 for running the infrastructure and service station. Till this date Ex.P1 and 2 are not amended and till today lease continued as per Ex.P1 and 2.
SCCH 17 24 SC. No.1435/12
21. The third defendant contended that during the year 1976 Smt.Rashida Begum made an oral gift (Hiba) to him in respect of property where he was running the petrol bunk.
It is significant to note that, except the self serving statement absolutely no positive evidence is placed on record to demonstrate the execution of Hiba. Absolutely there is no pleading and proof to attract the essential ingredients of Hiba. Nothing is pleaded in respect of date, time, place and the names of witnesses in whose presence oral gift was made. No witness is examined to prove the factum of Hiba. Moreover, the third defendant himself did not step into the witness box to prove the said fact. The Dw-2 in cross-examination at page 8 stated that he does not know the transaction between Samiulla and Rashida Begum. In cross-examination dated 15.11.16 at page 3 he stated that, the third defendant is having a share over the property as Rashida Begum is his aunt.
SCCH 17 25 SC. No.1435/12 Third defendant relied on decisions reported in 2011 (5) SCC 654 (Hafeeza Bill V/s S.K.Farid) and Judgment passed in RFA.No.960/03 dated 31.1.15 (Syed Basheer Malik and Ors. V/s Jameela Begum and Ors.). In the said decisions the essentials of a valid gift under Mohammadan Law i.e., declaration of gift by donor, acceptance of gift by donee and delivery of possession are stated. In the case on hand as stated supra nothing is placed is on record, which satisfies the said conditions. Thus the said decisions are not helpful to the third defendant.
The discussion supra manifest that the plaintiffs are landlords and defendants-1 and 2 are tenants of suit property and the third defendant is a sub-tenant. Accordingly, this issue is answered in affirmative.
22. Recast issues-2 & 3: These issues are taken together for common discussion to avoid repetition of facts.
SCCH 17 26 SC. No.1435/12
Defendants contended that the suit is not
maintainable and this Court has no jurisdiction to decide the rights of the parties. Their main contention is that there is a serious dispute with respect to the title, as such this Court lacks jurisdiction to try the suit as this Court cannot decides the rights of the parties and it cannot go into the niceities of title.
23. In support of contention supra the third defendant placed reliance on decisions reported in i) ILR 2011 KAR 229 (Abdul Wajid V/s A.S.Onkarappa), wherein the Hon'ble High Court at para 99 held that, if the right of a plaintiff and the relief claimed by him in a Court of Small Causes depend upon the proof or disproof of title to immovable property or other title in the light of the contentions raised by the defendant in his written statement, certainly the Court acting under Section 16 of KSCC Act has to order SCCH 17 27 SC. No.1435/12 return of plaint for presentation to proper Court. However, mere denial of jural relationship of landlord and tenant by the defendant in his written statement though the lease is evidenced by document, by itself cannot be a ground to hold that the Court of Small Causes has no jurisdiction. In such event, as an incidental question the Court has to find out whether the property had been let under lease or permitted to be occupied by a written instrument or orally as stated in Clause (a) and for that purpose the plaintiff has to be afforded opportunity to place evidence.
ii) 2009 (6) KLJ 130 (Gowramma and another V/s Jayamma and Ors.), wherein it is held that, Courts, below observed that recitals of documents produced by both parties disclose a complicated question of title and Small Cause Court cannot decide rights of properties with regard to ownership of said sale deed and also cancellation of release deed and partition deed - complicated questions of SCCH 17 28 SC. No.1435/12 title which requires interpretation of documents are to be done only by Civil Courts - Court below came to a right conclusion in dismissing eviction petition and revision petition - This Court do not found any illegal or incorrect findings recorded by Court below - Revision petition dismissed.
In the second decision plaintiffs relied on Will and relinquishment deed. Defendants relied on registered sale deed. In that scenario it is stated that the complicated question of title is involved and Small Causes Court cannot decide rights of the parties.
ILR 2004 KAR 1546 (R.Sharieff and Others V/s A.Mohammed Noor and another), wherein it is held that when there is a serious dispute regarding the title of the property, the Rent Control Court is debarred from proceeding with the matter. The Court shall direct the parties to approach the Civil Court for adjudication of their SCCH 17 29 SC. No.1435/12 rights. The Rent Control Court has to defer all further proceedings before it, till the final decision of the Civil Court in respect of declaration of title of the property.
(1988) 4 SCC 194 (Budhu Mal V/s Mahabeer Prasad & Ors.), wherein it is held that though discretion is vested in Court of Small Causes to return or not to return the plaint under, in appropriate cases Court must return the plaint in the interest of justice.
24. One cannot dispute the proposition stated in the decisions supra. In the instant case though the third defendant urged that there is serious title dispute is involved but failed to substantiate it. The undisputed documents clearly show that the third defendant is only a sub-tenant of suit property and nothing more than that. On the other hand, the Civil Court decrees and registered deeds show that the plaintiffs are purchasers of suit SCCH 17 30 SC. No.1435/12 property. Plaintiffs relied on a decision reported in (2000) 8 SCC 123 (Shamim Akthar V/s Iqbal Ahmed and anr.), wherein it is stated that tenant cannot avoid eviction proceedings under the UP Rent Act merely by denying the relationship of landlord and tenant between himself and the landlord. At para 12 it is stated that the question of title of the plaintiff to the suit house could be considered by the Small Cause Court in the proceedings as an incidental question and final determination of the title could be left for decision of the competent Court. In such circumstances, it could not be said that for the purpose of granting the relief claimed by the plaintiff it was absolutely necessary for the Small Cause Court to determine finally title to the property. If the respondent tenant by merely denying the relationship of landlord and tenant between himself and the plaintiff could not avoid the eviction proceeding under the Rent Control Act. That is, neither the language nor the SCCH 17 31 SC. No.1435/12 purpose of the provisions in Section 23 (1) of the Small Cause Courts Act.
In the instant case, undisputedly suit property belongs to the Rashida Begum, who died issueless, her family members filed suit, obtained decree and sold the property to the plaintiffs. In this scenario this Court holds that plaintiffs have title to the suit premises by considering the same as an incidental question in the proceedings. In this backdrop it can be said that the suit is maintainable and the question of title of the plaintiffs to the suit property could be considered by this Court in the proceedings as on incidental question by leaving final determination of the title by the competent Court. Accordingly, recast issue-2 is answered in affirmative and recast issue-3 is answered in partly affirmative.
SCCH 17 32 SC. No.1435/12 25. Recast issue-4: In the instant case there is no
dispute that the tenancy is month to month. In this background let us consider whether tenancy is lawfully terminated.
It is worth to note that Section 106 of Transfer of Property Act was amended by the Transfer of Property (Amendment) Act, 2002, wherein sub section 3 of Section 106 reads thus, A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub- section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.
In the case on hand the tenancy is month to month. Thus, it will fall in the second limb of Section 106 of Transfer of Property Act requiring 15 days prior notice to terminate it. Here, quit notice was issued on 1.2.2011 as per Ex.P3 terminating the tenancy w.e.f., 28.2.2011. The vendors SCCH 17 33 SC. No.1435/12 of plaintiffs also issued notices dated 10.10.2005 and 9.2.2006 (Ex.P10 & 11) to the second defendant calling upon it to vacate and delivery the possession of property. The DW.1 in cross-examination at page 10 admits the receipt of notice as per Ex.P3 issued by the plaintiffs. These facts manifest that the tenancy is lawfully terminated. In addition to this in the case on hand the lease period is already completed long back. Thus the tenancy is also determined by efflux of time. Hence recast issue-4 is answered in affirmative.
26. Recast issue-5: The findings supra manifest that the plaintiffs successfully demonstrated that they are the landlords and defendants 1 and 2 are tenants and third defendant is sub-tenant and the tenancy is lawfully terminated and they are entitle for vacant possession of suit property. Accordingly, this issue is answered.
SCCH 17 34 SC. No.1435/12
27. Recast issue-6: By virtue of above findings Court proceeds to pass the following;
ORDER Suit is decreed with costs.
Defendants are directed to quit, vacate and hand over the vacant possession of suit schedule premises to the plaintiffs within three months from the date of this order.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed by her corrected by me and then pronounced in the Open court, this the 15th day of December 2016) (A.SAMIULLA) XIX Addl SCJ, MACT & XLI ACMM BANGALORE.
ANNEXURE List of witnesses examined on behalf of Plaintiff: P.w.1- Sri.T.Shivakumar List of exhibits marked on behalf of SCCH 17 35 SC. No.1435/12 Plaintiff:
Ex.P.1 Lease deed dtd. 2.4.1970
Ex.P.2 Lease deed dtd. 20.07.1970
Ex.P.3 Legal notice
Ex.P.4 Postal receipt
Ex.P.5 Sale deed dtd. 21.2.2007
Ex.P.6 Khatha Certificates (6 in No.)
Ex.P.7 Khatha Extracts (6 in No.)
Ex.P.8 Certified copy of Sale deed dtd.21.2.2007
Ex.P.9 Letter dtd.27.1.2011
Ex.P.10 Notice dtd.10.10.2005
Ex.P.11 Reminder dtd.9.2.2006
Ex.P.12 Copy of Plaint in OS.1252/86
Ex.P.13 Joint memo filed in OS.1252/86
Ex.P.14 Order passed in OS.1252/86
Ex.P.15 Preliminary decree of OS.1252/86
Ex.P.16 Letter dtd. 22.10.97
Ex.P.17 Counterfoil of cheque.
Ex.P.18 Notice issued by ADLR
Ex.P.19 Sketch
Ex.P.20 Order Sheet of OS.2495/07
Ex.P.21 Death certificate
Defendant/s:
Sri. Moola Naga Satish
Sri. Syed Murtuza
List of exhibits marked on behalf of Defendant:
Ex.D.1 Sale deed
Ex.D.2 Authorization letter
Ex.D.3 Notice
Ex.D.4 Reply Notice
Ex.D.5 General Power of Attorney
SCCH 17 36 SC. No.1435/12
Ex.D.6&7 2 Khatha extracts
Ex.D.8 2 Tax paid receipts of Municipal No.1-
1-47/3A and 10-1-47/5
Ex.D.9 10 Tax paid receipts
Ex.D.10 Special notice dated 30.10.1985 Ex.D.11 Copy of plaint in OS 6365/2014 Ex.D.12 2 receipts regarding payment of rent by Defendant 1 and 2 to defendant No.3 Ex.D.13 21 Photographs Ex.D13(a) CD Ex.D14 Legal notice issued by defendant No.3 Ex.D.15 15 Postal receipts Ex.D.16 Rent receipt dtd.23.1.2014 Ex.D.17 Rent receipt dtd. 27.2.2012 Ex.D.18 Letter issued by SEIAA Ex.D.19 Plan (A.SAMIULLA) XIX Addl SCJ, MACT & XLI ACMM BANGALORE SCHEDULE All that piece and parcel of land or ground situated, lying and being at Yeshwanthpur, Bangalore in the registration sub-district and district Bangalore bearing erstwhile 45/2, which is presently situated at the Industrial Suburb of Yeshwanthpur, Bangalore and now in the limits of BBMP Ward No.10 is assigned with Bangalore City Corporation Katha No.47, 47/1, 47/2 and 47/3, 47/4 and the portion thereof admeasuring 100x80+90 or thereabouts and bounded as follows, that is to say;
SCCH 17 37 SC. No.1435/12 On or towards the East by: Property bearing Sy.No.45/2 (Tumkur-Bangalore Road)
On or towards the West by: Property bearing Sy.No.45/1; On or towards the North by: Lessor's land measuring 100 x 20 feet and plaintiff own property;
On or towards the South by: Lessor's land bearing Sy.No.45/1 and 45/2 plaintiff own property' (A.SAMIULLA) XIX Addl SCJ, MACT & XLI ACMM BANGALORE