Bangalore District Court
R.Venkatesh vs Kempamma on 22 August, 2024
KABC020015822020
Before the VII Addl. Judge and ACJM,
Court of Small Causes at Bengaluru
(SCCH3)
DATED THIS THE 22nd DAY OF AUGUST 2024
PRESENT: SRI.KUMARA.S (B.A., LL.B)
VII Addl. SCJ and ACJM,
Member, MACT3, Bengaluru.
S.C.No.82/2020
Plaintiff : Sri.R.Venkatesh,
S/o late Ramaiah,
Aged about 44 years,
R/at: Flat No.301,
Marvel Apartment,
1st Cross, Vittalanagar West,
BMK Layout,
Bengaluru 560 026.
(By Sri.Nanjegowda.C, Advocate)
V/s
Defendants : 01. Smt.Kempamma,
W/o late T.Gangadharaiah,
Aged about 60 years,
(By Sri.Harisha.M, Advocate)
(SCCH3) 2 S.C.No.82/2020
02. Smt.G.Mahalakshmamma,
D/o late T.Gangadharaiah,
Aged about 38 years,
(By Sri.Harisha.M, Advocate)
03. Sri.Shashidhara.G,
S/o late T.Gangadharaiah,
Aged about 35 years,
All are residing at:
No.964, 2nd Floor, 47th Cross,
Kumaraswamy Layout, 1st Stage,
Bengaluru - 560 078.
(Exparte)
*********
JUDGMENT
This suit is filed by the plaintiff against the defendants seeking ejectment of defendants from the suit schedule property and with costs.
02. The brief facts of the case of the plaintiff is that, the plaintiff is the sole and absolute owner and in peaceful possession and enjoyment of the suit schedule property and said property has been acquired by the plaintiff by his vendor Sri.T.Gangadharaiah S/o late Thimmaiah, under registered Sale deed dt:26.09.2016. Prior to the said sale deed, said T.Gangadharaiah and his family members had (SCCH3) 3 S.C.No.82/2020 executed a registered Sale agreement in favour of the plaintiff dt:21.11.2015. By virtue of the said registered Sale deed, the Khatha has been mutated to the name of the plaintiff and the plaintiff had paid upto date taxes to the BBMP from the date of purchase of the said property and the plaintiff is in possession and enjoyment of the said property. That the said T.Gangadharaiah was requested to plaintiff for permit him to continued in the said premises as a tenant and the plaintiff and T.Gangadharaiah were negotiated for the monthly rent for a sum of Rs.15,000/ and the plaintiff was also agreed for that and has permitted to the said T.Gangadharaiah to continue as a tenant and the said T.Gangadharaiah and his family members are settled in the 2nd floor of the premises.
03. It is further case of the plaintiff that, during lifetime of the T.Gangadharaiah, he was regular in paying rents on 06.09.2017. The said T.Gangadharaiah was issued a cheque for a sum of Rs.15,000/, the said cheque came to be returned with a shara Funds Insufficient, later the said T.Gangadharaiah was paid the said amount. From last 11 months, the said T.Gangadharaiah was not paid the rents to the plaintiff and said T.Gangadharaiah (SCCH3) 4 S.C.No.82/2020 was expired on 01.10.2019, during the lifetime of said T.Gangadharaiah, he was not paid the rents from last 11 months, after the death of the said T.Gangadharaiah, the plaintiff has demanded the defendants for arrears of rent for a period of 11 months and also demanded for quit, vacate and deliver the vacant possession of the premises and in this regard the plaintiff has also issued a legal notice to the defendants on 14.10.2019, said notice was served to the defendants and after receipt of the said notice, they have not handed over the premises, but evasively replied to the said legal notice as per Reply notice dt:02.11.2019. After receipt of the said legal notice, the defendant No.1 has filed a suit for Permanent Injunction against the plaintiff in O.S No.7958/2019 which was pending before the City Civil and Session Judge (CCH32) at Bengaluru. That the husband of the defendant No.1 and father of the defendants No.2 and 3 has sold the property in favour of the plaintiff on 26.09.2016, but after sold the said property, the said T.Gangadharaiah has received the rents from the tenants illegally and after the death of the said T.Gangadharaiah, the defendants are trying to get the rents from the tenants fraudulently. That the (SCCH3) 5 S.C.No.82/2020 defendants have no manner of rights, title and interest over the suit schedule property, the said T.Gangadharaiah has sold the said property on 26.09.2016, hence, the defendants have no any manner of rights, title and interest over the suit schedule property and they have no rights to continue in the premises without paying monthly rents to continue in the premises without paying monthly rents to the plaintiff, now the plaintiff is require the premises for his legal and domestic necessities and he has purchased the premises for his domestic necessities. The said premises is very essential to his use and occupation and the plaintiff has invested huge hard earned money for the purchase of the said premises, but after purchase of the said premises, the plaintiff is unable to live in his own property till date. That the defendants and T.Gangadharaiah were sold their property for their legal necessities and after received the huge amount, they have executed necessary documents, but they are troubling the plaintiff in handed over the physical possession of the said property. The defendants have not paid rents from last 11 months, but they are continued in the 2 nd floor of the premises and thereby, the plaintiff has constrained (SCCH3) 6 S.C.No.82/2020 to file the present suit seeking ejectment of defendants.
04. On service of summons, the defendants No.1 and 2 have appeared before this Court through their counsel and filed written statement. Inspite of service of summons, the defendant No.3 did not appeared before this Court and hence he placed exparte.
05. In their written statement, the defendants No.1 and 2 have denied the entire case of the plaintiff and also denied the ownership, peaceful possession and enjoyment over the schedule property and also denied the purchase of schedule property from T.Gangadharaiah and contended that as there was no really intended sale deed stated to be executed by the husband of the defendant No.1 before executing the above sale agreement and the said sale deed has been obtained by the plaintiff by playing fraud against the first defendant's husband. The deceased husband of the defendant No.1, during his lifetime has filed his objection for transfer of khatha, electricity connection and water connection and also denied jural relationship of landlord and tenant between the plaintiff, deceased T.Gangadharaiah and defendants.
Further contends that the defendants are in
(SCCH3) 7 S.C.No.82/2020
possession of the suit schedule property on their own and independent right and denied that the T.Gangadharaiah and defendants have not paid the rent to the plaintiff and also denied issuance of attornment of notice and service of said notice on them and admits that after receipt of the legal notice issued by the plaintiff, the defendant No.1 has filed a suit for Permanent Injunction against the plaintiff in O.S No.7958/2019, which was pending before the City Civil and Session Judge (CCH32) at Bengaluru and further, contended that at no point of time the plaintiff was landlord to the defendants or the defendants were tenants to the plaintiff. It was purely a loan transaction agreement and the sale deed was obtained by him by playing fraud and the same was not really intended one. That the husband of the defendant No.1 and the father of the defendant No.2, late T.Gangadharaiah, was the absolute owner of the piece and parcel of the written statement property, he having acquired the same from BDA by virtue of Sale deed dt:28.02.2007. At the time of allotment of the said property from BDA, it was consisting of small house and that after the execution of the sale deed in his favour, T.Gangadharaiah has put up a construction of (SCCH3) 8 S.C.No.82/2020 houses consisting of ground, first, second and two rooms in the third floor. That after the construction, he leased out the ground, first and third floor houses to tenants and he himself was residing in the second floor of the premises. Even today, the tenants are in possession of the ground, first and third floor. The said T.Gangadharaiah was died on 01.10.2019 leaving behind his wife, the defendant No.1 and his children's i.e., defendants No.2 and 3 as his sole surviving legal heirs and successors to his estate and after his death these defendants, along with children of defendant No.2 are residing in the second floor of the written statement schedule property. That after the death of late T.Gangadharaiah on 01.10.2019, the plaintiff got issued a legal notice dt:14.10.2019 to the defendants stating that he has purchased the written statement schedule property by virtue of registered Sale deed dt:26.09.2016 and called upon these defendants to vacate the suit schedule property. However, these defendants have sent suitable reply to the said notice by a Reply notice dt:02.11.2019.
06. It is further contended that late T.Gangadharaiah suffered with financial problem for having put up the house in the written statement (SCCH3) 9 S.C.No.82/2020 schedule property, hence he has raised loan with Srinagara Credit Cooperative Society Ltd., by mortgaging the written statement schedule property. However, as he was suffered with illhealth, he could not discharge the loan liability. Hence, written statement schedule property has been set for auction by the bank. At that time one Abhishekha being known to late T.Gangadharaiah has introduced the plaintiff as money lender and the plaintiff has agreed to give hand loan of Rs.23,60,000/ for interest calculated at the rate of 24% p.a provided late T.Gangadharaiah has to execute a registered agreement of sale in respect of written statement schedule property and also original documents should be given to him. In order to protect the written statement schedule property from auction, said T.Gangadharaiah has agreed to execute the sale agreement and also to hand over the original documents of title. At that time, the plaintiff has expressed his intention to purchase the written statement schedule property after visiting the written statement schedule property which was consisting of ground, first and third floor for sale consideration of Rs.90,00,000/, for which T.Gangadharaiah has also (SCCH3) 10 S.C.No.82/2020 agreed. As informed by the said T.Gangadharaiah on the date of execution of agreement of sale, the defendant No.1 has paid Rs.23,60,000/ by which amount, he has discharged the bank loan and thereafter he has executed the sale agreement dt:21.11.2015 in favour of the plaintiff and the plaintiff has agreed to pay balance consideration amount at the time of execution of the sale deed. Thereafter, around in the month of August 2016 some third parties have started to visit the property and when enquired it came to the knowledge of T.Gangadharaiah that the plaintiff has proposed the written statement schedule property for sale and they are going to purchase the property and as they have already received entire consideration, they have to vacate the same. At the time said T.Gangadharaiah came to know that the plaintiff has played fraud and while showing draft of sale agreement, he has mentioned the total sale consideration as Rs.90,00,000/ and advance consideration as Rs.23,60,000/, but in actual agreement he has mentioned the total consideration as Rs.60,00,000/ and as if he has already paid Rs.59,00,000/ which was utter false, said Gangadharaiah went shock and thereafter he (SCCH3) 11 S.C.No.82/2020 approached the plaintiff informed about his intention not to alienate the property in his favour sought for cancellation of the sale agreement by receiving back the amount paid by the plaintiff since he cheated in the matter of contents of the agreement and though he has not paid Rs.59,00,000/ to him. It is has been informed by T.Gangadharaiah to both the defendants that the plaintiff has agreed for the same, hence he has paid back to the defendant No.1 Rs.24,00,000/ by making alternate arrangement of money and sought for cancellation of agreement from the plaintiff and he has agreed. As on the date of said agreement, the written statement schedule property is worth more than Rs.95,00,000/ and the plaintiff taking undue advantage of the situation and financial problem, tried to exploit the husband of the defendant No.1. It has been informed by late T.Gangadharaiah to the defendant No.1 that he has paid back the advance consideration amount received by him and also got cancelled the sale agreement and the defendant No.1 need not worry about the same.
07. It is further contended in the written statement that, thereafter as late T.Gangadharaiah's health become very worst, he has been hospitalized (SCCH3) 12 S.C.No.82/2020 and become bedridden and died on 01.10.2019. During the lifetime he has informed the defendant No.1 that he has not sold the written statement schedule property to the plaintiff and has also discharged the amount paid by the plaintiff and the defendant No.1, her children and grand children are in possession and enjoyment of the written statement schedule property as absolute owners thereafter.
08. It is further contended that, the plaintiff is trying to knock off the written statement schedule property based on the fabricated sale deed stated to be executed by said T.Gangadharaiah which is passed with no consideration and obtained by the plaintiff by playing fraud against said T.Gangadharaiah, hence the plaintiff has no legal right over the written statement schedule property. That the plaintiff who had kept quiet all these days, only after the death of said T.Gangadharaiah, has stated to interfere with the peaceful possession and enjoyment of these defendants by coming near the written statement schedule property and used harass them by using filthy languages to the defendant No.1 and used to send his followers near the written statement schedule property, hence she has lodged a Police complaint and (SCCH3) 13 S.C.No.82/2020 also filed a suit for bare injunction against the plaintiff and another in O.S No.7958/2019 before the City Civil and Session Judge (CCH32) at Bengaluru and said Court by its order has restrained the plaintiff from interfering with the defendant No.1 peaceful and enjoyment of the written statement schedule property.
09. It is further contended that the husband of defendant No.1 during his lifetime he has got cancelled the sale agreement with the defendant No.1 by repaying the advance consideration received by him. The said T.Gangadharaiah was suffered with severe illhealth and died on 01.10.2019 and after the death of said T.Gangadharaiah, at the time of searching the documents, found a complaint lodged by T.Gangadharaiah against the cheating and also regarding nonexecution of sale deed by him in favour of the plaintiff and he has also given letter to BWSSB and also KPTCL and also to the BBMP. The BBMP has also issued a notice to the late T.Gangadharaiah calling upon him to make payment of taxes. That the plaintiff will not acquire any title under the guise of fraudulent document being obtained by him by playing fraud against said late T.Gangadharaiah and was kept quite all these days and now after the death of late (SCCH3) 14 S.C.No.82/2020 T.Gangadharaiah, he has stated to harass these defendants and their tenants on one pretext or the other. That the plaintiff has filed his written statement in the said suit making all false averments and it is not the case of the plaintiff in the written statement filed in the said suit that either late T.Gangadharaiah or these defendants are tenants under him and T.Gangadharaiah was paying rents and has issued cheques to him for payment of rents and the defendants are denying very title of the plaintiff, the suit of the plaintiff for the relief of eviction of the defendants is not maintainable. Hence, pray for dismiss the suit against these defendants with costs.
10. On the basis of the above said pleadings, following points that arise for my consideration are as under:
1) Whether the plaintiff proves that he is the landlord of suit schedule property and deceased T.Gangadharaiah is a tenant under him on monthly rental basis and after his death, the defendants are cotenants or joint tenants under him?
2) What order or decree?
(SCCH3) 15 S.C.No.82/2020
11. Both plaintiff and defendants adduced their evidence. The plaintiff in order to prove his case, he himself got examined as PW.1 and got marked 20 documents as Ex.P.1 to 20 and closed his side. Similarly, defendant No.1 is examined herself as DW.1 and 09 documents were marked as Ex.D.1 to 9 and closed their side.
12. I have heard the arguments of learned counsel for the plaintiff and defendant on merits of this case and perused the records.
13. My answer to the above points are as under:
Point No.1: In the Affirmative
Point No.2: As per final order
for the following:
REASONS
14. Point No.1: According the plaintiff, he has purchased the suit schedule property from one T.Gangadharaiah under registered Sale deed dt:26.09.2016 with valid consideration and as on the date of registration of Sale deed itself the said T.Gangadharaiah had entered into rent agreement (SCCH3) 16 S.C.No.82/2020 with plaintiff as he had no other residential house for himself and his family members, he agreed to pay monthly rent of Rs.15,000/ and after the rental agreement, the said T.Gangadharaiah has regularly paying rents and subsequently he has issued a cheque for a sum of Rs.15,000/ towards rent, but the said cheque was dishonoured due to Insufficient Funds and after purchase of the said suit premises, the Khatha has been mutated in the name of the plaintiff and he is the absolute owner of the suit property and said T.Gangadharaiah and his family members are settled in the 2nd floor of the premises. But said T.Gangadharaiah was died on 01.10.2019 and after the death of the said T.Gangadharaiah, the plaintiff has demanded the defendants who are the wife and childrens' of T.Gangadharaiah for arrears of rent for a period of 11 months and also demanded for quit, vacate and deliver the vacant possession of the premises and also issued attornment notice, but inspite of it the defendants have not vacated the suit premises and not handed over the suit premises, hence, he has filed this suit for ejectment.
15. The plaintiff in order to prove his case, he himself examined as PW.1 and in his chief (SCCH3) 17 S.C.No.82/2020 examination evidence he has reiterated the plaint averments therein. During the course of cross examination by the defendant counsel he denied to the suggestion that "In Ex.P.13, Attornment notice he has not stated that the said Gangadharaiah was his tenant and execution of agreement and arrears of rent and in Ex.P.13 he has not stated about termination of tenancy and also denied to the suggestion that in the Sale deed executed on 26.09.2016 it is not stated that the said Gangadharaiah was the tenant and he will be continued as tenant in the schedule property. The witness volunteers that after registration of Ex.P.1 an another agreement was executed in between himself and Gangadharaiah and states that at the time of purchase of suit schedule property and execution of rent agreement along with him there was Gangadharaiah and two witnesses namely Abhinandan and Ramesh and admits that in the said rent agreement there is no signature of witnesses and admits that his vendor did not handed over the document regarding attornment of tenancy of the tenants in the suit schedule property and denied to the suggestion that Ex.P.20 rent agreement was not executed by Gangadharaiah and it is fabricated for this (SCCH3) 18 S.C.No.82/2020 case and admits that from the date of execution of sale deed in his name till the death of Gangadharaiah he had not issued notice to him regarding payment of rent to him or termination of tenancy and admits that he has not issued notice demanding arrears of rent for 10 months to the defendants and admits that at the time of purchase of schedule property Gangadharaiah has lease the suit schedule property and denied to the suggestion that till the lifetime of Gangadharaiah and after his death, his wife Kempamma had lease the suit property. But the witness volunteers that at the time of purchase of suit schedule property there were tenant and after issuance of notice they have vacated and other tenant were inducted by Gangadharaiah in the said property and he do not know that after the death of Gangadharaiah in the year 2019, the wife of Gangadharaiah namely Kempamma had lease the shops to other tenants and admits that till today there are no tenants under his ownership in the ground and first floor of suit property and denied to the suggestion that there was no hurdle for him to vacate the earlier tenants and to induct new tenants over the suit property and admits that during the lifetime of Gangadharaiah he had lodged complaint before (SCCH3) 19 S.C.No.82/2020 Commissioner of Police and states that he do not know that in the said complaint the said Gangadharaiah had stated that out of fraud the sale deed was executed which needs to be cancelled and also sought for taking action against him and admits that there was no hurdle for him to say in the plaint or in his evidence regarding existence of Rent agreement dt:26.06.2016 and admits that in the said agreement dt:26.06.2016 electricity, water charges, duration of tenancy and period of vacating the property were not mentioned and also admits that in the said agreement the amount of security deposit and issuance of notice were also not mentioned.
16. Further, he denied to the suggestion that prior to selling of suit property the said Gangadharaiah had sought hand loan from him and admits that in Ex.P.2 the total sale consideration is stated as Rs.60,00,000/ and in Ex.P.2 it is stated that a sum of Rs.59,00,000/ were paid by way of cash and in Ex.P.2 six months time were given to execute Sale deed and there was no difficulty for him to execute sale deed from November 2015 within 06 months and in Ex.P.1 total sale consideration is shown as Rs.49,00,000/ and in Ex.P.1 it is stated that on 26.09.2016 a sum of (SCCH3) 20 S.C.No.82/2020 Rs.49,00,000/ were paid by way of cash and also admits that there was no hurdle for him to pay the sale consideration through cheque or DD, but as the seller demands for payment by way of cash he had paid it by way of cash only and admits that in the sale agreement the signature of family members of Gangadharaiah were obtained but due to nonavailability of family members of Gangadharaiah their signatures were not obtained in the sale deed and admits that there was no difficulty for him to get vacated of the shops let by Gangadharaiah on ground and first floor. The witness volunteers that those tenants were not on lease but on rent and denied to the suggestion that he has not issued notice to the tenancy during the lifetime of Gangadharaiah and also denied to the suggestion that the said Gangadharaiah has no intention to sell the suit schedule property in his favour and also denied to the suggestion that he has not paid the sale consideration mentioned in the sale deed to the said Gangadharaiah and also denied to the suggestion that the said Gangadharaiah has not executed sale deed in his favour and he has filed false suit and deposing falsely before this Court and also denied to the suggestion that as the said (SCCH3) 21 S.C.No.82/2020 Gangadharaiah did not executed sale deed in his favour, he has not handed over the possession of the suit property to him and admits that the tenants of Gangadharaiah has not handed over possession to him and denied to the suggestion that during the lifetime of Gangadharaiah he had filed objection with respect to obtaining electricity connection, water connection and effecting Khata and denied to the suggestion that as there was objection, Khatha was not issued in his name and only Uttara form was issued and denied to the suggestion that the said Gangadharaiah has not prepared voluntarily the Ex.P.1 and 2.
17. Further, he admits that the Kempamma was always present in the schedule property and admits that in Ex.P.1 it is not stated regarding payment of Rs.59,00,000/ and earlier execution of another agreement and denied to the suggestion that by taking undue advantage of health condition of Gangadharaiah and in order to cancel the advance agreement, his signature was obtained on sale deed at Ex.P.1 and also denied to the suggestion that eventhough Kempamma was very much present in the suit property, her signature was not obtained in the sale deed as it is created one, witness volunteers that at time of (SCCH3) 22 S.C.No.82/2020 registration apart from Gangadharaiah no persons were present and hence their signature were not obtained and admits that in respect to suit property there was loan in Srinagar Cooperative Bank and denied to the suggestion that with respect to clearance of the said loan the said Gangadharaiah and Shashidhar have approached him for hand loan and also denied to the suggestion that one Abhinandan was the mediator for the loan. The witness volunteers that the said Abhinandan had informed that the suit property is available for sale and there is bank loan and denied to the suggestion that when the aforesaid have approached him for loan, he had obtained blank documents from them and admits that as the Gangadharaiah was in possession of second floor and letted the ground, 1st and 3rd floor, he had not executed rent agreement in his favour and denied to the suggestion that he has created the sale deed in his name and hence he has no right, title interest and possession over the suit property and also denied to the suggestion that the rent agreement, sale agreement, sale deed and other documents were fabricated and hence he is not entitled for any of the relief".
(SCCH3) 23 S.C.No.82/2020
18. Though the defendants have claimed that during the lifetime of Gangadharaiah he has objected for transfer of electricity connection, water connection and effecting Khata by filing application before the concerned competent authority. But no such documents have been produced before the Court.
19. Apart from the oral evidence, the plaintiff has got marked twenty documents as Ex.P.1 to 20. Ex.P.1 is Sale deed dt:26.09.2016 which shows that deceased T.Gangadharaiah has executed Sale deed in favour of plaintiff with respect to suit schedule property for valid consideration. Ex.P.2 is advance sale agreement dt:21.11.2015 wherein deceased T.Gangadharaiah had agreed to sell the suit property in favour of plaintiff and it is further appears that defendants who are wife and children's of deceased Gangadharaiah have also put their signatures on the said agreement. These Ex.P.1 and 2 are the registered documents and registered in accordance with law under the Registration Act. The genuineness of the said documents cannot be doubted. Further, on perusal of above said documents, wherein it is clearly shows that the suit schedule property was self acquired property of the deceased T.Gangadharaiah (SCCH3) 24 S.C.No.82/2020 and he is the absolute owner and said T.Gangadharaiah has sold the suit property for his legal necessity. Ex.P.3 is Uttara patra. Ex.P.4 and 5 are the Khatha extract dt:20.03.2017 and dt:31.12.2019. Ex.P.6 and 7 are the Khatha certificate dt:20.03.2017 and dt:31.12.2019. Ex.P.8 to 10 are the Tax receipts which discloses that the Khatha of the suit schedule property has been mutated in the name of the plaintiff as per the Sale deed as a owner and since from the date of purchase of suit property, plaintiff has paid taxes regularly to the BBMP. Ex.P.11 is Cheque dt:06.09.2017 which shows that said Gangadharaiah himself signed on the cheque and issued in favour of the plaintiff for sum of Rs.15,000/, but defendants have not putforth any reasons with regard to issuance of cheque by T.Gangadharaiah. If this cheque is not issued towards the rent amount, then for what purpose Gangadharaiah has issued the said cheque in favour of the plaintiff is not explained by the defendants. Hence, it appears that said cheque was issued by the deceased Gangadharaiah in favour of plaintiff towards payment of rent. Ex.P.12 is Bank endorsement which shows that cheque issued towards rent amount was dishonoured for the reason Funds (SCCH3) 25 S.C.No.82/2020 Insufficient in the account of Gangadharaiah. Ex.P.13 is copy of attornment notice which discloses that on 14.10.2019 the plaintiff had got issued notice to the defendants who are the legal heirs of the original tenant T.Gangadharaiah wherein he clearly demand for quit, vacant and deliver the vacant possession of the suit schedule property, wherein schedule of the property is also mentioned. Ex.P.14 is Postal receipts having proof of sending the notices to the defendants. Ex.P.15 is Reply notice dt:02.11.2019 given by defendants through their counsel to the counsel for the plaintiff by denying the entire claim of the plaintiff. Ex.P.16 is Electricity consumer history statement copy from December 2016 to December 2019 which shows that the electricity connection was also stood in the name of plaintiff with respect of suit schedule property. Ex.P.17 to 19 are Transfer of installation memorandum which also discloses that the said electricity installation was transferred from T.Gangadharaiah to the plaintiff and Ex.P.20 is Lease agreement/Rent agreement dt:26.09.2016 wherein the deceased Gangadharaiah has stated that since he has no other residential house for him and his family members, he intend to residing at 2 nd floor in the suit (SCCH3) 26 S.C.No.82/2020 premises as a tenant and agreed rent per month is Rs.15,000/. Though it is unregistered document, but it is a rental agreement for monthly rent and not yearly rent, hence registration is not mandatory. However, the plaintiff has paid duty and penalty of Rs.7,700/ on the said agreement, as per court order. Therefore, on going through the above oral and documentary evidence produced by the plaintiff, it appears that the plaintiff is the absolute owner and enjoyment of the suit schedule property and as per Ex.P.20 Rent agreement/Lease agreement, the deceased Gangadharaiah and his family were residing in the suit premises and defendants being the wife and children of the deceased Gangadharaiah are bound to quit, vacate and hand over the vacant possession of the suit premises in favour of the plaintiff.
20. Further, the defendants in the written statement have specifically denied jural relationship of landlord and tenant between the plaintiff, late T.Gangadharaiah and defendants. They have denied the absolute ownership and possession of plaintiff over the suit property and contended that by taking undue advantage of health condition of Gangadharaiah and also his financial problem, the plaintiff by lending (SCCH3) 27 S.C.No.82/2020 loan, has took blank documents and fabricated sale deed, sale agreement and even rental agreement and defendants are the real owners of the suit schedule property and there is no relationship of landlord and tenant between plaintiff, T.Gangadharaiah and defendants. To disprove the case of the plaintiff and to prove their defence, on behalf of the defendants, the defendant No.1 is examined as DW.1 and got marked 9 documents, In her chief examination evidence she has reiterated the written statement averments therein. During the course of crossexamination by the plaintiff counsel she has stated that "She do not know the property number and measurement and she cannot say the schedule of the property and one Gangadharaiah is her husband and said Gangadharaiah has purchased the suit property on 28.02.2007 and admits that based upon sale deed the said Gangadharaiah was paying taxes to the property and after purchase of the property the said Gangadharaiah has built an house. She knew the plaintiff. One Abhi is the friend of plaintiff and through him her husband knew the plaintiff and she along with her children had executed an agreement in favour of plaintiff in the year 2015 and denied to the suggestion (SCCH3) 28 S.C.No.82/2020 that her husband has executed sale deed in favour of plaintiff on 26.09.2016 and on the basis of sale deed got Khatha in his name and was paying taxes to the property and states that she has not seen the recent Khatha extract and tax receipts of the suit property and denied to the suggestion that after selling the suit property in favour plaintiff, her husband had agreed to remain in the suit property as tenant on payment of Rs.15,000/ as rent and her husband has agreed to pay rent to the suit property, the plaintiff had allowed them to remain in the suit property as tenants and also denied to the suggestion that till the death of her husband, he was paying rent to the plaintiff and on 06.09.2017 her husband gave cheque for a sum of Rs.15,000/ to the plaintiff and said cheque issued by her husband was dishonored for Insufficient Funds and as on 14.10.2019 she and her children are due of rent for 11 months and admits that the plaintiff had send notice to her and states that she knew the contents of notice. She volunteers that after receipt of notice she had lodged complaint before Kumaraswamy Layout Police Station and also to Commissioner and admits that after service of notice they have filed O.S 7958/2019 against the plaintiff not to dispossess them (SCCH3) 29 S.C.No.82/2020 from the suit property and she states that before filing suit against the plaintiff, he came to her home and picked quarrel with her stating that he is the owner of the suit property and demanded to vacate it by also abusing her and they have lodged complaint against the plaintiff after he demanding to vacate the suit property.
21. Further, she admits that she had filed PCR 60/2019 against the plaintiff and got registered FIR and denied to the suggestion that eventhough plaintiff has demanded to vacate the suit property but they have filed false complaint against the plaintiff for abusing her by taking her caste name and hence that after investigation Police filed 'B' report in that case and admits that she had informed that Nethra and Geetha are her tenants at the time of filing written statement and denied to the suggestion that as her husband has sold the suit property in the year 2016 itself to the plaintiff and she and her children are not the owners of suit property in the year 2020 and also denied to the suggestion that she and her children have no right to execute rent agreement in favour of Nethra and Geetha as they were not the owners of suit property. Further, she stated that her husband died (SCCH3) 30 S.C.No.82/2020 due to suffering from B.P. sugar and heart ailments, she has not produced the medical records of her husband and admits that her husband had obtained loan for the construction of house from Srinagar Cooperative Society and denied to the suggestion that as her husband was not able to clear the loan, she, her husband and her children have sold the suit property in favour of plaintiff and also states that she cannot say the developments of suit property in the year 2016 and after execution of sale agreement in the year 2015 in favour of plaintiff, no other person came and approach for selling the suit property and admits that apart from executing the sale agreement in favour of plaintiff, her husband has not shown the suit property to any person or executed any agreement in favour of any other person and admits that the plaintiff had cleared the loan at Srinagar Credit Cooperative Society and denied to the suggestion that after clearance of loan and obtaining NOC, her husband had executed sale deed in favour of plaintiff and denied to the suggestion that her husband has executed sale deed in favour of plaintiff and after death of her husband, she and her children are harassing the plaintiff by not vacating the suit property and (SCCH3) 31 S.C.No.82/2020 eventhough plaintiff had cleared their loan, they are harassing the plaintiff by not vacating the suit property and denied to the suggestion that they have obtained injunction against the plaintiff in O.S 7958/2019 and Hon'ble High Court has stayed the injunction order obtained in O.S 7958/2019 in MFA 1110/2021 and admits that the injunction suit was got converted into declaration suit, they have produced Khatha and Kandaya receipt to show that they are the owners of suit property and denied to the suggestion that they are not the owners of suit property and now the plaintiff is required the suit property for his residential purpose".
22. Though she has stated that she has lodged complaint before Kumaraswamy Layout Police Station and also to Commissioner after receipt of attornement notice, but no such complaint copy is produced, though she has stated that she has produced Khatha and Kandaya receipts, but no such documents are produced in this case. Though she denied the case of the plaintiff, but she has not produced any documents to show that after the death of her husband, she and her children are become the owners and possession of (SCCH3) 32 S.C.No.82/2020 the suit property and they are residing in suit premises as a owners not as a tenants under the plaintiff.
23. Apart from the oral evidence, the defendants have got marked nine documents as Ex.D.1 to 9. Ex.D.1 is Certified copy of Order sheet/interim order in O.S 7958/2019 which shows that the defendant No.1 has filed suit against the plaintiff for permanent injunction wherein Hon'ble City Civil and Sessions Court, CCH32, has passed an order on IA No.1 and 2 filed by the defendant No.1 U/o 39 Rule 1 and 2 by praying relief of permanent injunction restraining the defendants etc., claiming under or through them from any any manner interfering or dispossessing the plaintiff and her tenants from the suit schedule property or dispossessing them from suit schedule property pending disposal of the above suit and also restraining the defendant No.1 claiming under or through them from in any manner alienating the suit schedule property in favour of third parties pending disposal of the above suit. The said document is marked through PW.1 by confronting the same. Certified copy of Plaint in O.S No.7958/2019 is again mistakely marked as Ex.D.1 which was filed by the defendant No.1 against plaintiff for the relief of (SCCH3) 33 S.C.No.82/2020 permanent injunction and for declaration of ownership and to declare the sale deed executed by the deceased T.Gangadharaiah in favour of the defendant No.1, who is plaintiff in this suit is null and void. Ex.D.2 is Certified copy of written statement filed by the defendant No.1 in the said suit. Ex.D.3 is Certified copy of amended plaint filed in the said suit. Ex.D.4 is Certified copy of additional written statement filed by defendant No.1 in the said suit. Ex.D.5 is Certified copy of application filed U/o 39 Rule 1 and 2 of CPC filed in the said suit for not to interfere and dispossessing the plaintiff and her tenants from the suit premises. Ex.D.6 is Certified copy of objections filed by the defendant No.1 in the said suit for the amendment application filed by the plaintiff in the said suit. Ex.D.7 is Certified copy of Order sheet filed in the said suit. Ex.D.8 and 9 are Lease agreement dt:24.02.2020 and dt:09.05.2020 executed by the defendant No.1 in favour of one Smt.Nethra.S and Smt.S.Geetha. These documents are Lease agreement for the period of 2 years which are compulsorily registrable documents. But said documents are not registered in accordance with law. However, this court (SCCH3) 34 S.C.No.82/2020 has collected duty and penalty on the said documents before marking the same as Exhibits.
24. On perusal of said documents, it appears that, the defendant No.1 has filed suit in O.S No.7958/2019 for permanent injunction, declaration of ownership with respect to suit property and also declaration with effect that sale deed executed by the T.Gangadharaiah in favour of plaintiff to be declared is null and void which is pending before CCH32. It also admitted fact that wherein the Hon'ble District Court has restrained the defendant No.1 in the said suit not to interfere or dispossessed the plaintiff and her children from the suit premises and also restraining the defendant No.1 from alienating the suit schedule property. But the plaintiff has produced certified copy of Order passed by the Hon'ble High Court of Karnataka in MFA No.1110/2021 wherein the Hon'ble High Court has stayed the said temporary injunction order dt:27.02.2020 passed by the District Court in the said original suit. But defendants have not produced any documents to show that said stay order is vacated or cancelled. Further, though the defendant No.1 has claimed that (SCCH3) 35 S.C.No.82/2020 she is the owner of the suit schedule property and she has leased the property to the tenants as per Ex.D.8 and 9 Lease agreement. But the said lease agreement or lease deed are not registered documents, cannot be relied upon. In this regard the Hon'ble Supreme Court of India in a decision reported in AIR 1984 SC 143 in a case of Satish Chand Makhan and Others V/s.Govardhan Das Byas wherein it is held that, "The unregistered Lease deed cannot also be taken into consideration on the ground that, such deed can be admitted in evidence for collateral purpose, invoking proviso to Section 49 of Registration Act, as terms of the lease are not a collateral purpose within its meaning".
25. In this regard it is relevant to quote necessary provisions of Transfer of Property Act. Sec.107 of Transfer of Property Act provides that, "Sec.107 A lease of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument".
This provisions of law clearly indicates that, lease agreement or lease deed of immovable property for a (SCCH3) 36 S.C.No.82/2020 year and more than one year or exceeding one year, it shall be a compulsorily registered document only.
26. Further, as per Sec.17 of Registration Act, 1908 it provides that, "Sec.17 Documents of which registration is compulsory.
(1). The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No.XVI of 1864 or the Indian Registration Act, 1866 or the Indian Registration Act, 1871 or the Indian Registration Act 1877 or this Act came or comes into force, namely:--
(a)instruments of gift of immovable property;
(b)other nontestamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property
(c)nontestamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, (SCCH3) 37 S.C.No.82/2020 declaration, assignment, limitation or extinction of any such right, title or interest; and
(d)leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent".
27. The above provision of Sec.17(d) of Registration Act mandates that, leases of immovable property from year to year or for any term exceeding one year or reserving a yearly rent is compulsorily registrable documents.
28. Further, Sec.49 of Registration Act provides that, "S.49 Effect of nonregistration of documents required to be registered.--No document required by section 17 (or by any provision of the Transfer of Property Act, 1882), to be registered shall--
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered".
29. This provision of Registration Act clearly mandates that, the effect of nonregistration of (SCCH3) 38 S.C.No.82/2020 documents required to be registered in accordance with law, it cannot affect any immovable property comprised therein or confer any power to adopt or be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered and it cannot create any rights or interest with respect to immovable property.
30. Therefore, Ex.P.8 and 9 are unregistered lease agreement for a period of 2 years cannot be looked into for establishing relationship between the defendant No.1 and alleged tenants under her as landlord and tenants as collateral issue.
31. No doubt, Ex.P.20 which is unregistered Rental agreement for monthly rent between the plaintiff and deceased T.Gangadharaiah. The said document is though unregistered, but it is a monthly tenant and not exceeding period of one year or more. Hence, it can be admissible in evidence.
32. Though, there is a discrepancy in sale consideration amount at Ex.P.1 and 2 i.e., Sale deed and Sale agreement. But the same are registered documents registered in accordance with law and registered as per the provisions of Indian Registration Act. Hence, the genuinity of registered documents (SCCH3) 39 S.C.No.82/2020 cannot be denied or doubted and same are admissible in evidence. Therefore, on going through Ex.P.1 to 10, it appears that the plaintiff is the owner of the suit schedule premises as per registered Sale deed dt:26.09.2016 and as per registered Sale deed, the Khatha has been mutated to the name of the plaintiff and he also paid taxes to the concerned BBMP. Ex.P.20 discloses that as on the date of Sale deed dt:26.09.2016, the deceased T.Gangadharaiah has entered into lease agreement/rent agreement with plaintiff and executed rent agreement for monthly rent of Rs.15,000/. Though the plaintiff has not produced rent receipt prior to 06.09.2017, but he has produced Ex.P.11 Cheque stating that the deceased Gangadharaiah has issued a cheque on 06.09.2017 for a sum of Rs.15,000/ towards the payment of rent amount. Therefore, otherwise contrary is proved, it appears that said cheque was issued by the T.Gangadharaiah in favour of plaintiff towards payment of rent.
33. The defendant No.1 has produced Ex.D.1 to 7, which are the certified copies of Order sheet, Plaint, written statement and orders passed on IA Nos.1 and 2. It appears that after issuance of (SCCH3) 40 S.C.No.82/2020 attornment notice by the plaintiff against the defendants, defendant No.1 has preferred Comprehensive Suit in O.S No.7958/2019 before Hon'ble District and Sessions Court, CCH32, at Bengaluru for relief of permanent injunction and later the said plaint was amended for relief of declaration of ownership of the suit premises and declaration with effect that the registered sale deed executed by the deceased T.Gangadharaiah in favour of plaintiff is null and void is pending for consideration. Though the defendants have disputed the execution of alleged sale deed and contended that said sale deed is fabricated and created document, but this court has no jurisdiction to decide legality or validity of the sale deed and further it also shows that as per Ex.P.16 to 19 which are Electricity consumer history statement and transfer of installation memorandum was standing in the name of the plaintiff. All those documents establishes that the plaintiff is the absolute owner of suit premises and Ex.P.20 establishes that deceased T.Gangadharaiah had entered into rent agreement with plaintiff for monthly rent of Rs.15,000/. Before issuing attornment notice, the said Gangadharaiah was died, hence, as per Ex.P.13 the plaintiff has issued (SCCH3) 41 S.C.No.82/2020 attornment notice and requested the defendant to quit, vacate and hand over the vacant possession of the suit schedule property and said attornment notice was served on the defendants and the defendant No.1 has issued Reply notice on 02.11.2019 and denying the ownership of the plaintiff and also denied the jural relationship of landlord and tenant. But defendant No.1 has failed to prove that she is the absolute owner and deceased Gangadharaiah is not a tenant under the plaintiff and no piece of document with respect to ownership has been prodcued by the defendants and even they have not produced the Khatha extract, Tax paid receipts and other documents to establish that they are the owners of the suit schedule property and even the defendants have not produced electricity bills, water bills etc., to establish that they have actually paid electricity and water charges with respect to suit schedule property.
34. Upon death of original tenant, subject to any provision to the contrary although negative or limiting the succession, the tenancy right devolves on the heirs of deceased tenant. It is permissible to be so addressed and served upon one of the heirs of deceased tenant, who paid rent and acted on behalf of all the heirs of (SCCH3) 42 S.C.No.82/2020 original tenant. It means even when the right of tenancy before its termination has been inherited by the legal heirs of the tenant, they are joint tenants on a single tenancy and one of them can represent the entire estate for which reason notice of the entire estate for which reason notice of termination U/Sec 106 of T.P. Act served on one is capable of terminating of tenancy inherited by the joint tenants as on legal heirs of the original tenant. It is so held in the following citations:
01. AIR 2017 ORI 122 (page 124126) in between Mamatha Panigrahy V/s Hemalatha Dalai,
02. 2010(2) RLR 174 (Allah) in between Shreeram Goyal V/s Jitendra Guptha,
03. AIR 1989 SC 1470 in between H.C. Pandey V/s G.C.Paul,
04. 2007(3) CCC 269 (Uttar) in between Pan Singh V/s Balwant Singh.
35. Therefore, in this case also the defendants are the joint tenants on a single tenancy and one of them can represent the entire estate for which reason notice of the entire estate for which reason notice of termination U/Sec 106 of T.P. Act served on one is capable of terminating of tenancy inherited by the joint (SCCH3) 43 S.C.No.82/2020 tenants as on legal heirs of the original tenant. As per Ex.P.13, plaintiff has issued attornemtn notice to defendants and calling upon them to quit, vacate and hand over the vacant possession of the suit schedule property was admitted by the defendants and have also replied to the said notice.
36. Though Ex.P.20 is unregistered rent agreement would not debar the court from holding that relationship of landlord and tenant is established in the case. Unregistered lease deed would not debar the court from holding that relationship of landlord and tenant is established in the case, it is so held in a decision of Ganesh Ram Kishan Bairagi V/s Parvatha Bai Tukharam Appa Landge reported in AIR 2017 (NOC) 61 (Bombay).
37. In view of these facts, I hold that on the basis of the material available on record, the plaintiff has proved his ownership over the suit premises and also jural relationship between himself, T.Gangadharaiah and defendants. Hence, no option is left for this court otherwise to decree the suit of the plaintiff and defendants shall vacate the suit premises within time fixed by this court. However, in this suit (SCCH3) 44 S.C.No.82/2020 the plaintiff has not claimed relief of recovery of arrears of rent. Hence, in the absence of prayer with respect to recovery of arrears of rent, this court cannot pass order for said relief in this suit. In view of these facts, Point No.1 in answered in the Affirmative.
38. Point No.2: In view of my findings on point No.1, I proceed to pass the following: ORDER The suit of the plaintiff is hereby decreed with costs against the defendants.
The defendants are hereby directed to vacate and hand over the vacant possession of the suit schedule premises to the plaintiff within 2 months from the date of this Judgment.
Draw decree accordingly.
(Dictated to the Stenographer, transcript thereof is corrected and then pronounced by me in open court, on this the 22st day of August, 2024) Digitally signed KUMARA by KUMARA S Date:
S 2024.08.23
15:17:42 +0530
(KUMARA.S)
VII Addl. Judge and ACJM,
Bengaluru.
(SCCH3) 45 S.C.No.82/2020
SCHEDULE
All that piece and parcel of the house property bearing No.964, EWS, PID No.55832964, Kumaraswamy Layout 1st Stage, 47th Cross, Bengaluru - 560 078, measuring east to west 6.00 meters and north to south 9.15 meters, in all measuring 54.90 square meters 2nd Floor and bounded on:
East by : Temple
West by : Property belongs to EWS House No.963
North by : Road
South by : Drain
Digitally signed
KUMARA by KUMARA S
Date:
S 2024.08.23
15:18:00 +0530
(KUMARA.S)
VII Addl. Judge and ACJM,
Bengaluru.
ANNEXURE
List of the witnesses examined on behalf of plaintiff:
P.W.1 R.Venkatesh List of the documents exhibited on behalf of plaintiff:
Ex.P.1 Original registered sale deed dt:26.09.2016 Ex.P.2 Original registered advance sale agreement dt:21.11.2015 (SCCH3) 46 S.C.No.82/2020 Ex.P.3 Uttara patra Ex.P.4 Khatha extract dt:20.03.2017 Ex.P.5 Khatha extract dt:31.12.2019 Ex.P.6 Khatha certificate dt:20.03.2017 Ex.P.7 Khatha certificate dt:31.12.2019 Ex.P.8 Tax receipts (03 in Nos.) to 10 Ex.P.11 Cheque dt:06.09.2017 Ex.P.12 Bank endorsement Ex.P.13 Copy of Legal notice dt:14.10.2019 Ex.P.14 Postal receipts Ex.P.15 Reply notice dt:02.11.2019 Ex.P.16 Electricity consumer history statement copy from December 2016 to December 2019 Ex.P.17 Transfer of installation memorandum to 19 (03 in Nos.) Ex.P.20 Lease agreement dt:26.09.2016 List of the witnesses examined on behalf of defendant:
D.W.1 Kempamma
List of the documents marked on behalf of
defendant:
Ex.D.1 Certified copy of interim order passed in
OS.7958/2019
Ex.D.1 Certified copy of Plaint in OS 7958/2019
Ex.D.2 Certified copy of written statement in OS
7958/2019
Ex.D.3 Certified copy of amended plaint in OS
7958/2019
Ex.D.4 Certified copy of additional written statement
in OS 7958/2019
(SCCH3) 47 S.C.No.82/2020
Ex.D.5 Certified copy of application filed U/o 39 Rule 1 and 2 of CPC in OS 7958/2019 Ex.D.6 Certified copy of objection to application filed in OS 7958/2019 Ex.D.7 Certified copy of Order sheet in OS 7958/2019 Ex.D.8 Lease agreement dt:24.02.2020 Ex.D.9 Lease agreement dt:09.05.2020 Digitally signed KUMARA by KUMARA S Date: S 2024.08.23 15:18:10 +0530 (KUMARA.S) VII Addl. Judge and ACJM, Bengaluru.