Bangalore District Court
Smt. Siddamma vs Shri Chikkanna @ on 17 August, 2015
Before the Court of XII Additional Small Causes at
Bangalore
(SCCH-8)
Present: Shri P.J.Somashekar B.A., LL.B.
XII Additional Small Causes Judge,
Bangalore.
Dated this the 17th day of August 2015
S.C. No.932/2013
Plaintiffs 1.Smt. Siddamma,
Wife of Late B.Siddaiah @
B.Siddappa,
Aged bout 75 years,
Both are residing at No.40, 6th cross,
Vittalanagar 2nd main,
Chamarajpet,
Bengaluru-560 018.
2.Shri S.Prakash,
Son of Late b.Siddaiah @ Siddappa,
Aged about 50 years,
Both are residing at No.40,
6th Cross, Vittalanagar 2nd Main,
Chamarajpet,
Bengaluru-560 018.
(Shri K.Muralidhar, Advocate)
V/s
Defendant Shri Chikkanna @
Lakshminarayana,
Son of Narayanappa,
Aged about 63 years,
2 (SCCH-8) S.C.No.932/2013
Residing at New No.33/1, (old
No.68), 6th Cross, Vittalanagar
2nd main, Chamarajpet,
Bengaluru-560 018.
(Shri S.G.Nataraj, Advocate)
Date of institution of the suit: 2.8.2013
Nature of the suit (suit on pronote,
suit for declaration and possession
suit for injunction etc.): Ejectment
Date of commencement of
recording of the evidence: 19.3.2014
Date on which the judgment
is pronounced : 17.8.2015
Total duration: Years Month/s Days
2 0 15
XII Addl.Judge.
JUDGMENT
This is a suit filed by the plaintiffs against the defendant for ejectment directing the defendant to quite, vacate and deliver the vacant possession of the schedule property in their favour.
2.The brief facts of the plaint are as under: 3 (SCCH-8) S.C.No.932/2013 The plaintiffs in their plaint were alleged that they are the joint owners of the property bearing premises New No.33/1 (old No.68) situated at 6th Cross, Vittalnagar, 2nd main road, Chamarajpet, Bengaluru formed out of Sy.No.22 of old Karithimmanahalli village, measuring East to West 15 feet and North to South 40 feet having purchased by the first plaintiff nominally in the name of her lonely son the second plaintiff from one M.Krishnamurthy in pursuance of the registered sale deed dated 7.6.1980 and the katha has been changed in the name of second plaintiff. During the year 1980, the first plaintiff was working in T.R.Mill and thereafter Chandra Mill, Bengaluru she saved the money from her salary and it was kept for her son's educational purposes. However, she purchased the schedule property nominally in the name of second plaintiff for his future educational purpose. At that time the second plaintiff was studying in SSLC and he was school going student he did not do any work, for which he has no source of income. They 4 (SCCH-8) S.C.No.932/2013 were not executed the agreement of sale or any agreement infavour of the defendant. However, the defendant brother one Ramanna got obtained the agreement of sale with respect of schedule property from the second plaintiff without the knowledge of the first plaintiff in the year 1982. However, at that time the second plaintiff was a student and he had no intention to sell the suit schedule property by executing the said sale agreement. The defendant brother said Ramanna colluded with the second plaintiff was made agreement of sale by suppressing the actual facts without the knowledge of the first plaintiff. The Ramanna had agreed to purchase the schedule property for valuable consideration of Rs.26,000/-, for which he has paid Rs.10,000/- as an advance and agreed to pay the balance amount of Rs.16,000/- at the time of registration and took the original documents in respect of the suit schedule property. But Ramanna did not pay the remaining amount for registration of the sale deed and he 5 (SCCH-8) S.C.No.932/2013 has been postponing the completion of the sale transaction under one way or the other. So, the plaintiff has categorically intimated to the said Ramanna that the sale agreement will automatically be cancelled and also to take back the advance amount as well as return to the original documents and the said Ramanna was requested for extension of time for which second plaintiff did not agree.
3. During the August 1985, the said Ramanna came and forwarded and expressed his difficulty in purchasing the suit schedule property. However, he has requested the second plaintiff to accommodate him till the advance amount was adjusted, after due negotiation, the rental was fixed at Rs.200/- per month. Accordingly the second plaintiff inducted the said Ramanna as a tenant in the property. However, both Ramanna and second plaintiff have orally agreed for rental purposes with respect to schedule property.
6 (SCCH-8) S.C.No.932/2013
4. The plaintiffs in their plaint further alleged though the second plaintiff has adjusted the advance amount, but unable to get back the original documents from the said Ramanna. Thereby the second plaintiff has demanded the Ramanna to quit, vacate and deliver the vacant possession of the premises, in view of defaulting in payment of rent and also return all the original documents taken by him. But he has post phoned the same on the ground that he will be trying for an alternative accommodation and accordingly the second plaintiff kept quite. Thereafter the said Ramanna without intimating the second plaintiff abruptly vacated the schedule property and inducted the defendant in the schedule property. Now the defendant is in occupation of the schedule property without lawful rights. So, the second plaintiff has approached the defendant number of times to vacate the schedule property, the defendant is avoiding for vacating the same. So, the second plaintiff has lodge the complaint regarding illegal occupation 7 (SCCH-8) S.C.No.932/2013 before the jurisdictional. So, they did not taken any steps since the matter is in civil nature. Therefore, he has approached the City Civil Court and the first plaintiff came to know that the second plaintiff had executed the agreement with respect to the schedule property and she questioned the same to her son as well as the said Ramanna then only came to know that the second plaintiff has given the suit schedule property to Ramanna for rental purpose on a monthly rent of Rs.200/-. So, Ramanna died after inducted the defendant as a tenant without their knowledge. So, they approached the defendant to quit, vacate and deliver the vacant possession of the schedule property for their own use and occupation. However, the defendant did not deliver the possession of the schedule property without having any right or interest over the property and the defendant without having any right has demolished the wall and engaged in putting up fresh constructions and then he gave half of the portion to one Smt.Shanthamma for sub- 8 (SCCH-8) S.C.No.932/2013 let without their knowledge. So, they got issued a legal notice by way of RPAD through their advocate calling upon him to quit, vacate and deliver the vacant possession of the schedule property. But he did not reply the notice nor deliver the vacant possession of the schedule property. The suit schedule property is required for their own use and occupation. So, they have terminated the tenancy of the defendant by issuing a notice dated 24.1.2013, but inspite of the service of notice the defendant did not quit, vacate and deliver the suit schedule property in their favour. Thereby they have filed the instant suit against the defendant.
5. The cause of action for the suit which arose on 24.1.2013 when the notice of termination of tenancy was issued to the defendant and on 28.1.2013 when the same was received by the defendant and one month there on, when the tenancy got terminated in respect of the suit schedule property within the jurisdiction of this court and prays for decree the suit.
9 (SCCH-8) S.C.No.932/2013
6. In response of the suit summons the defendant has appeared through his counsel and filed the written statement by denying the para Nos. 1 to 9 of the plaint averments and taken up the contention that the plaintiff No.2 is the owner of the suit schedule property and the second plaintiff has entered into the agreement with his brother by name Ramanna @ B.N.Ramu on 11.8.1982 and the second plaintiff has agreed to sell the schedule property for valuable consideration of Rs.15,000/-. On 11.8.1982 his brother has paid an advance amount of Rs.12,000/- and agreed to pay the balance consideration of Rs.3,000/- to the second plaintiff at the time of registration of the sale deed in respect of the suit schedule property, after receiving the substantial sale consideration amount under the agreement dated 11.8.1982 the second plaintiff has put his brother in possession of the schedule property on the very day. From 11.8.1982 himself and his brother have been in continuous possession and enjoyment of the suit 10 (SCCH-8) S.C.No.932/2013 schedule property without interruption from anybody in respect of the suit schedule property. The second plaintiff has signed the affidavit confirming about the agreement of sale and delivery of possession in their favour. As on the date of agreement Corporation of the City of Bangalore has not fixed the tax in respect of the schedule property. The second plaintiff has agreed to execute the sale deed after fixing of tax by the City Corporation of Bengaluru and till then he has agreed that agreement will be in force. So, his brother has requested in 2nd plaintiff to fix the tax in respect of the schedule property from the Corporation of City of Bengaluru and execute the sale deed in his favour. After receiving the balance consideration amount of Rs.3,000/- but he has postponed the same, though his brother always ready and willing to pay the balance amount and to get the sale deed executed in his favour. But the second plaintiff was not ready to perform his part of contract in executing the sale deed after receiving 11 (SCCH-8) S.C.No.932/2013 the balance sale consideration amount, himself and his brother were residing in the schedule property as joint family members.
7. The defendant in his written statement has alleged that in the year 2003 the second plaintiff has filed the suit against him and his brother in O.S. 15771/2003 before the City Civil Court, Mayo Hall, Bengaluru and the said suit was disposed off since the second plaintiff filed a memo and prays for dismiss the said suit.
8. The second plaintiff again filed vexatious suit against him by showing his mother as a plaintiff No.1 in order to avoid res-judicata. The averments made in plaint are all false and in correct and he is not the tenant and he is residing in the schedule property since 1982 when his brother was entered into the agreement with the second plaintiff. The second plaintiff has put his brother in possession of the schedule property and his brother was died during the pendency of 12 (SCCH-8) S.C.No.932/2013 O.S.15771/2003. The second plaintiff has filed the instant suit for the same cause of action, so the res- judicata is applicable. On this ground alone the suit is not maintainable and prays for dismiss the suit with costs.
9. The plaintiffs in order to prove the plaint averments the plaintiff No.1 has examined herself as P.W.1 and got marked the documents as Exs.P1 to P4 and the second plaintiff has examined himself as PW2 and got marked the documents as Ex.P5 and Ex.P6.
10. The defendant in order to prove his defence has examined himself as DW1 and got marked the documents as Ex.D1 to Ex.D5 and examined one witness on his behalf as DW2.
11. Heard arguments on both side.
12. The points that arise for court consideration are as under:
1. Whether the plaintiffs prove that there is a jural relationship in
13 (SCCH-8) S.C.No.932/2013 between them as landlord and tenant?
2. Whether the plaintiffs prove that they have terminated the tenancy by issuing notice u/s 106 of T.P. Act?
3. Whether the defendant proves that the suit of the plaintiffs is not maintainable before this court?
4. What decree or order?
13. My answer to the above points are as under:
Point No.1: Negative.
Point No.2: Does not survive for court
consideration
Point No.3: In the affirmative
Point No.4: As per final order
for the following:
14 (SCCH-8) S.C.No.932/2013
REASONS
14. Point No.1 and 3:
These points are inter-related to each other hence inorder to avoid the repetition of facts and materials on record these points are discussed together.
The plaintiffs were approached the court on the ground that the plaintiff No.1 being the mother of the second plaintiff has purchased the suit schedule property in the name of the second plaintiff is none other than the son of the first plaintiff. The second plaintiff has entered the agreement of sale with one Ramanna who is none other than the brother of the defendant for sale consideration amount of Rs.26,000/-. Out of the sale consideration amount has paid Rs.10,000/- as an advance amount and agreed to pay the balance amount of Rs.16,000/- at the time of registration and he took the original document in respect of the suit schedule property. In the year 1985, Ramanna came forward and expressed his difficulty in purchasing the property and he 15 (SCCH-8) S.C.No.932/2013 has requested to accommodate him till the advance amount was adjusted and after due negotiation the rental was fixed at Rs.200/- per month. Accordingly the second plaintiff inducted the said Ramanna as tenant in the property and they have orally agreed for occupation of the suit property as tenant and advance amount will be adjusted to the rent and they have waited for four years to cover up the advance amount. So, they demanded the Ramanna to quit, vacate and deliver the vacant possession of the property as he was defaulted in payment of rent. The said Ramanna has vacated the suit property inducted the defendant in the property. The defendant is in occupation of the schedule property without any lawful rights and he was not vacated the suit schedule property, thereby the plaintiffs have filed the instant suit against the defendant after issuance of legal notice u/s 106 of T.P. Act.
15. On the other hand, the defendant has taken up the contention that the second plaintiff being the owner 16 (SCCH-8) S.C.No.932/2013 of the schedule property has sold the same infavour of the defendant brother for sale consideration amount of Rs.15,000/-. Out of the sale consideration amount the defendant brother has paid Rs.12,000/- to the second plaintiff though the defendant brother has requested the plaintiff No.2 to receive the balance amount of Rs.3,000/-
and execute the sale deed in his favour. But he did not execute the sale deed nor received balance consideration amount and after the death of his brother the defendant is in possession of the schedule property and there was no relationship of land lord and tenant in between them.
16. The learned counsel for the plaintiffs in his argument has submitted that the plaintiffs being the co- owners of the suit property have filed the instant suit against the defendant as the first plaintiff being the mother of the second plaintiff has purchased the suit schedule property under registered sale deed on 7.6.1980 in the name of the 2nd plaintiff as she was working in T.R.Mill and thereafter Chandra Mill was drawing salary 17 (SCCH-8) S.C.No.932/2013 every month and saved money and purchased the same in the name of second plaintiff and the second plaintiff was studying in SSLC as on the date of sale deed, he had no source of income. In the year 1981-82 the first plaintiff was staying in other resident in the same locality due to quarrel with her husband, who was drunken, now he is no more, second plaintiff and his father were staying in the property from the date of purchase after the death of second plaintiff's father he was joining and staying with his mother and inform the first plaintiff that they have given the suit schedule property for rent and they did not execute the sale agreement or any other agreement infavour of the defendant. But the defendant brother one Ramanna got obtained the agreement of sale with respect to suit schedule property from the second plaintiff colluding the previous owner of the suit schedule property N.Krishnamurthy without the knowledge of the first plaintiff and he has no intention to sell the suit property. But on collusion with N.Krishna Murthy being 18 (SCCH-8) S.C.No.932/2013 the previous owner and father of the second plaintiff and the said Ramanna got obtained agreement of sale by suppressing the actual facts and without the knowledge of the first plaintiff and the sale agreement was unregistered. As per the sale agreement, Ramanna had agreed to purchase the schedule property for valuable consideration of Rs.26,000/- in which a sum of Rs.10,000/- was paid as advance amount to the second plaintiff father. Even the second plaintiff did not know what happened among themselves at the time of getting sale agreement and Ramanna had agreed that father of the second plaintiff to pay balance amount of Rs.16,000/- at the time of registration since the Ramanna could not able to arrange the funds and he has post-phoning the completion of sale transaction. In the year 1985, in the month of August, Ramanna came forward and expressed his difficulty in purchasing the property. However, he requested the second plaintiff to accommodate him till the advance amount was adjusted 19 (SCCH-8) S.C.No.932/2013 and after due negotiation, the rent was fixed at Rs.200/- per month. Accordingly second plaintiff inducted the said Ramanna as tenant in the said property. Both Ramanna and second plaintiff have orally agreed for rental purpose, but never agreed to sell the schedule property. The said Ramanna has deliver the vacant possession of the property in view of his default in payment of rent and not return the original documents but without intimation inducted the defendant in the schedule property. Now the defendant is in illegal possession of the schedule property. So, they got issued legal notice to the defendant to calling upon him to quit, vacate and deliver the suit schedule property. But inspite of legal notice he did not deliver the suit property. Thereby the plaintiffs have filed the instant suit against the defendant and prays for decree the suit.
17. Per contra the learned counsel for the defendant in his argument has submitted that the plaintiff No.2 being the owner of the suit property has sold the same 20 (SCCH-8) S.C.No.932/2013 infavour of one Ramanna @ B.N.Ramu who is none other than the brother of the defendant on 11.8.1992 and he has agreed to sell the suit property for valuable consideration of Rs.15,000/-. So, the defendant brother has paid Rs.12,000/- on 11.8.1982 and agreed to pay the balance consideration of Rs.3,000/- at the time of registration of sale deed in respect of the suit property. Though the plaintiff No.2 has received the substantial amount under the agreement dated 11.8.1982, but did not execute the sale deed. However, he has put the defendant brother in possession of the suit property on the very day from 11.8.1982, the brother of the defendant and the defendant have been in occupation of the suit schedule property. The second plaintiff has signed the affidavit confirming about the agreement of sale and delivery of possession of the suit property infavour of the defendant's brother and handing over the original records infavour of the defendant brother, as on the date of agreement of sale Corporation of City, Bengaluru has not 21 (SCCH-8) S.C.No.932/2013 fixed the tax in respect of schedule property. So, the second plaintiff has agreed to execute the sale deed infavour of the brother of the defendant after fixing the tax by the City Corporation of Bengaluru. So, all along the defendant's brother has requested the second plaintiff go get tax fixed in respect of the schedule property from the Corporation and to execute the sale deed in his favour. But the second plaintiff has post phone on one or the other grounds. The defendant's brother was always ready and willing to perform his part of contract. But the second plaintiff being the owner was not ready to perform his part of contract in executing the sale deed after receiving the balance sale consideration amount. In the year 2003, the second plaintiff has filed the suit in O.S. 15771/2003 against the defendant and his brother, pending of the suit second plaintiff has filed memo and sought for dismissal of the suit. Accordingly, the suit was came to be dismissed. Now, again the plaintiffs have filed the instant suit by suppressing the true facts. The 22 (SCCH-8) S.C.No.932/2013 defendant is not the tenant and he is not residing in the schedule property as a tenant. But he is residing in the suit property since 1982 when his brother was entered into agreement of sale in respect of the second plaintiff as the second plaintiff has put the brother of the defendant in possession of the suit schedule property along with the defendant. So, the suit itself is not maintainable since there is a dispute in respect of jural relationship as landlord and tenant and the defendant is not at all residing in the schedule property as tenant. The defendant is not the tenant under the plaintiffs, he was in possession of the suit property as holder of the agreement of sale which was executed by the second plaintiff and prays for dismiss the suit with costs.
18. The plaintiffs in order to prove their case have filed their affidavit as their chief-examination as PW1 and 2 and got marked the documents as Ex.P1 to Ex.P4. The PW.1 in her evidence has stated that the second plaintiff being minor as on the date of alleged agreement 23 (SCCH-8) S.C.No.932/2013 of sale and she being the mother of the 2nd plaintiff was unaware of the alleged agreement of sale. The father of the second plaintiff colluding with the defendant has got created the agreement of sale and the brother of the defendant has entered into agreement of sale for sale consideration amount of Rs.26,000/-. Out of the sale consideration amount the defendant brother has paid Rs.10,000/- as advance amount and agreed to pay the balance amount at the time of registration and took the original documents in respect of the suit property. But he did not pay the balance amount nor got the sale deed. However, in the year 1985 he has forwarded and expressed his difficulty in purchasing the property and requested to adjust the advance amount as monthly rent and monthly rent has been fixed of Rs.200/-. They have all along requested the defendant brother to vacate suit schedule property, but he has inducted the defendant in the property and possession of the defendant over the suit property is illegal and unlawful. PW1 in her cross- 24 (SCCH-8) S.C.No.932/2013 examination has denied that the suit property is the self- acquired property of the second plaintiff and she has pleaded ignorance about the suit filed by the second plaintiff against the defendant and his brother. PW2 being the owner of the suit property has filed his affidavit as his chief examination by reiterating the plaint averments in his cross-examination has admitted about the execution of the agreement of sale deed in favour of defendant brother. But he has stated that the defendant brother has got obtained agreement of sale deed forcibly and he has admitted the agreement of sale which was executed by him in favour of the defendant brother as Ex.D1 and he has admitted that he has filed the suit against the defendant and his brother and his evidence has been recorded in the said suit and admitted that recitals appeared in Ex.D2 that he has executed the agreement of sale deed in respect of suit property infavour of the defendant.
25 (SCCH-8) S.C.No.932/2013
19. The defendant in order to prove his defence has filed his affidavit as his chief-examination in which has reiterated the averments of the written statement stating that the second plaintiff has executed the agreement of sale deed in favour of his brother on the very day has handing over the possession since then his brother and himself were in possession of the suit property and there is no jural relationship in between them as landlord and tenant. DW1 in his cross examination has denied that though his brother has vacated the suit property infavour of the plaintiff, but he is in unlawful possession of the suit schedule property and he has denied that the first plaintiff being the mother of the second plaintiff has executed the agreement infavour of his brother as minor guardian, but he has admitted the suit property is standing in his name.
20. DW2 being said to be the brother son of the defendant in his evidence has stated that the second plaintiff has sold the suit schedule property infavour of 26 (SCCH-8) S.C.No.932/2013 his father and he has put his father in possession of the schedule property on the date of agreement itself, since then his father and his uncle i.e., defendant were in possession of the suit schedule property. The second plaintiff has filed the suit against his uncle and his father and the said suit was came to be dismissed. During the pendency of the said suit his father was expired. After the death of his father second plaintiff has filed a memo and dismissed the suit filed against his father and uncle. DW2 in his cross-examination has admitted that the agreement was taken place in between the father and the second plaintiff as he has executed the agreement of sale deed in the year 1982 and the suit property earlier belongs to second plaintiff and he has denied his father and original owner Krishna murthy were got created the Ex.D1 knowing fully well that as on the date of alleged agreement of sale second plaintiff was student and minor.
27 (SCCH-8) S.C.No.932/2013
21. It is an admitted fact that the plaintiffs being the mother and son were filed the instant suit against the defendant for ejectment directing the defendant to quit, vacate and deliver the suit property in their favour on the ground that the defendant brother has entered into agreement of sale with the second plaintiff but subsequently he has not paid the balance amount nor obtained the sale deed and requested the second plaintiff to accommodate him till the advance amount was adjusted. So, after negotiation rent was fixed at Rs.200/- per month, after adjustment of rent the defendant brother Ramanna has not vacated the suit schedule property, thereby the second plaintiff has requested the defendant to quit, vacate and deliver the suit schedule property and Ramanna has vacated the suit property without intimation to the second plaintiff and inducted the defendant in the property. So, occupation of the schedule property by the defendant without any lawful rights.
28 (SCCH-8) S.C.No.932/2013
22. On the other hand the defendant has denied the same and taken up the contention that he is not the tenant under the plaintiffs. So, the burden on the plaintiffs to prove that as on the date of the suit the defendant is the tenant and there is jural relationship in between them as landlord and tenant. So, for the proper appreciation of the pleadings of the parties and the materials on record, it is just and necessary for reproduction of plaint para No.5 reads like thus:
The defendant is in occupation of the schedule property without any lawful rights. The 2nd plaintiff approached the defendant number of times to vacate the schedule property however the defendant is avoiding vacating the same. The 2nd plaintiff had lodged the complaint regarding his illegal occupation before the jurisdictional police.
23. The above averments appeared in the plaint clearly reflects the defendant is in occupation of the schedule property without any lawful rights. Thereby 29 (SCCH-8) S.C.No.932/2013 the second plaintiff has approached the defendant number of times to vacate the schedule property as the defendant is in unlawful possession of the suit schedule property. That itself is clear the plaintiffs were not at all admitted in their plaint that the defendant being the tenant under them as they have alleged that the defendant possession over the suit property is unlawful possession. Prior to filing of the suit the plaintiffs have got issued legal notice to the defendant in which also they have not at all stated that the defendant is a tenant under them. So, for the proper appreciation of the recitals as appeared in Ex.P1, is necessary for reproduction of the same reads like thus:
"My client asker her son for clearing her doubt, due to brain wash my client's son by your brother with collusion of you, her son also told lie that he has given for rent. Later on my client came to know the real facts at that time your brother said Ramanna was expired and then my client 30 (SCCH-8) S.C.No.932/2013 questioned your regarding your illegal occupation. But you did not turn up and did not deliver the possession of the schedule property to my client.
However, you have not any manner of rights over the same and your act is unlawful and illegal possession of the schedule property. However, without any manner of right over the schedule property, he gave half of the portion to Smt.Shanthamma for sublet without the knowledge of my client."
24. The above recitals reflects that the plaintiffs were not at all stated in the legal notice that the defendant either the tenant nor Sublette but they have admitted in the said notice that possession of the defendant is unlawful and illegal possession. So, the pleadings of the parties and averments as appeared in Ex.P1 reflects that the plaintiffs were not at all alleged nor pleaded in the plaint that the defendant is a tenant under the plaintiffs. So, their pleadings itself is clear that the defendant is in illegal possession of the schedule 31 (SCCH-8) S.C.No.932/2013 property and moreover the plaintiffs have not placed any materials on record to show about their relationship as landlord and tenant. Except Ex.P1 to Ex.P4 nothing is placed on record to show that there is a jural relationship in between the plaintiff and defendant as landlord and tenant. That is the reason why the learned counsel for the defendant while canvassing his arguments has submitted that suit itself is not maintainable on the ground that the defendant is not a tenant under the plaintiffs as the brother of the plaintiff has entered the agreement with the 2nd plaintiff who was the major and owner of the suit schedule property as on the date of the agreement as the PW.2 in his cross examination has admitted about the execution of agreement of sale in favour of the defendant brother by virtue of Sec.53-A of Transfer of Property Act, so the defendant and his brother were in possession of the suit schedule property as the agreement holder even after the death of the defendant brother the defendant has bee 32 (SCCH-8) S.C.No.932/2013 continued in the suit schedule property though the defendant brother was always ready and willing to perform his part of the contract but the 2nd plaintiff did not execute the sale deed but he started to give trouble to the defendant brother and defendant by filing a suit. Therefore this court drawn its attention on the judgment of the Hon'ble Bombay High Court reported in 1988 Bombay 142 in between Wilfred Lovette Vs. Ganesh, which reads like thus;
Provincial Small Cause Courts Act (9 of 1887), S. 15(4) -Transfer of Property act (4 of 1882), S. 53A---
Ejectment suit---Jurisdiction of Small Causes Courts---Defence under S.53 A of T.P.Act raised in written statement--
-Small Cause Court loses jurisdiction to try the suit.
25. In the above said judgment his lordship held that when transferee takes possession of the property in part performance of the contract or continues to remain in possession as such, and does some act in furtherance 33 (SCCH-8) S.C.No.932/2013 of the contract and is willing to perform his part of contract, then, although the transfer has not been completed in the manner prescribed, the transferor or any person claiming under him any right in respect of the property of which the transferee has taken or continued in possession and the defence has raised in the written statement under S.53-A of the T.P. Act, suit itself goes out of jurisdiction of the Small Cause Court.
26. In the instant case also the plaintiffs in their plaint have admitted that the 2nd plaintiff has executed an agreement of sale in favour of Ramanna who is the brother of defendant that is the reason why the defendant has taken up the contention in the written statement that the 2nd plaintiff has sold the property in favour of the Ramanna who is non other than the brother of the defendant. The PW.1 being the owner of the suit schedule property in his cross examination has categorically admitted about execution of agreement of sale in favour of the Ramanna, so for the proper 34 (SCCH-8) S.C.No.932/2013 appreciation of the admission it is necessary for reproduction of the same reads like thus:
zÁªÁ D¹ÛAiÀÄ£ÀÄß ¥ÀæwªÁ¢AiÀÄ vÀªÀÄä gÁªÀÄtÚ¤UÉ £À£ÀUÉ FUÀ vÉÆÃj¹zÀ PÀæAiÀÄzÀ PÀgÁgÀÄ ¥ÀvÀæzÀ CrAiÀÄ°è §gÉzÀÄPÀÆnÖzÉÝ CAvÀ CAzÀgÉ ¸Àj DzÀgÉ ¸ÀzÀj zÁR¯ÉAiÀÄ£ÀÄß £À£Àß PÀqɬÄAzÀ §®ªÀAvÀ¢AzÀ §gɹPÉÆAqÀgÀÄ ¸ÁQëzÁgÀgÀÄ £ÉÆÃr UÀÄgÀÄw¹zÀAvÀºÀ zÁR¯ÉAiÀÄ£ÀÄß ¤.r1 CAvÀ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ.
27. The above admission of the PW.2 during his cross examination clearly reflects that the 2nd plaintiff being the owner of the suit schedule property has admitted about the execution of agreement of sale, though he has stated that Ramanna has forcibly got obtained the agreement of same but nothing is placed on record to show that the Ramanna has forcibly got obtained the agreement of sale one thing is clear that the PW.2 has admitted about execution of agreement of sale.
The PW.2 in his cross examination has admitted that he has filed the suit in O.S No.15771/03 against very defendant and his brother Ramanna so for the proper 35 (SCCH-8) S.C.No.932/2013 appreciation of the admission of the PW.2 during his cross examination is necessary for reproduction reads like thus:
£Á£ÀÄ FUÀ £ÉÆÃqÀÄwÛgÀĪÀ zÀsÊrÃPÀÈvÀ ¥Ánà ¸ÀªÁ°£À PÁ¦ £À£ÀߣÀÄß C¸À®Ä zÁªÁ £ÀA 15771B03zÀ°è ªÀiÁrzÀAvÀ ¥Ánà ¸ÀªÁ°£À PÁ¦ EgÀÄvÀÛzÉ CAzÀgÉ ¸Àj ¸ÁQëzÁgÀgÀÄ £ÉÆÃr UÀÄgÀÄw¹zÀAvÀºÀ zÁR¯ÉAiÀÄ£ÀÄß ¤.r3 CAvÀ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. £Á£ÀÄ ¤.r3gÀ°è ¥ÀæwªÁ¢AiÀÄ vÀªÀÄä¤UÉ Rjâ ¥ÀvÀæªÀ£ÀÄß ªÀiÁrPÉÆnÖ¢Ýä CAvÀ N¦àPÉÆAr¢Ýä CAvÀ CAzÀgÉ ¸Àj £Á£ÀÄ gÁªÀÄtÚ ºÉýzÀÝjAzÀ M¦àPÉÆArzÉÝ. £Á£ÀÄ gÁªÀÄtÚ ºÉýzÀÝgÀ ªÉÄÃgÉUÉ M¦àPÉÆAr¢Ýä CAvÀ ºÉýgÀĪÀÅ¢®è CAzÀgÉ ¸Àj. PÀæAiÀÄzÀ PÀgÁgÀÄ ¥ÀvÀæzÀ ªÉÄðgÀĪÀ ¸À»AiÀÄÆ ¸ÀºÀ £À£Àß ¸À» CAvÀ M¦àPÉÆAr¢Ýä CAzÀgÉ ¸Àj ªÀÄvÀÄÛ zÁªÁ D¹ÛAiÀÄ£ÀÄß gÀÆ.15,000PÉÌ ªÀiÁgÁl ªÀiÁrgÀĪÀÅzÀ£ÀÄß M¦àPÉÆArzÉÝÃ£É CAzÀgÉ ¸Àj. CzÉà jÃw ªÀÄÄAUÀqÀ ºÀt gÀÆ.12,000 vÉUÉzÀÄPÉÆAqÀ §UÉÎAiÀÄÆ ¸ÀºÀ M¦àPÉÆArzÉÝÃ£É CAzÀgÉ ¸Àj.
36 (SCCH-8) S.C.No.932/2013
28. The above admission of the PW.2 during his cross examination is clearly reflects that the defendant and his brother were entered into the suit schedule property by virtue of agreement of sale in view of Sec.53- A of T.P Act that is the reason why the PW.2 in his cross examination has categorically admitted about the facts as stated above. Therefore, this court has not jurisdiction to adjudicate the matter which is in dispute since the plaintiffs have utterly failed to establish jural relationship in between them. Thus, the decision as stated above is directly applicable to the case on hand. So, looking from any angle the plaintiffs have not proved the jural relationship as landlord and tenant. On the other hand the defendant has proved his case through oral and documentary evidence that this court has no jurisdiction to adjudicate the matter which is in dispute. So, the question of considering the Point No.2 does not arise as the said point does not survive for court consideration. Hence, I am of the opinion that the point 37 (SCCH-8) S.C.No.932/2013 No.1 is answered as Negative and Point No.3 is answered as Affirmative.
29. Point Nos.2 & 4:
In view of my answer to the point No.1 and 3 as stated above point No.2 does not survive for court consideration. In the result, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby dismissed. No order as to costs.
Dictated to the stenographer on line, revised, corrected by me and then pronounced in the open court this the 17th day of August 2015.
(P.J.Somashekar), XII Addl. Small Causes Judge, Bangalore.
SCHEDULE All that piece and parcel of residential house property about four square (400 sq. ft.) which constructed 40 years back in the site bearing New No.33/1 (Old No.68), 38 (SCCH-8) S.C.No.932/2013 situated at 6th cross, II main, Vittalnagar, Chamarajpet, Bengaluru-18 formed out of Sy.No.22 of Old Karithimmanahalli village, site measuring East to West 15 feet and North to South 40 feet totally measuring 600 Sq. feet, which existing Mangalore tiled said house property and bounded on the;
East by : Private House Property
West by : House belongs to Krishna Murthy's
Sister
North by : Private House Property
South by : 20 feet Road
(P.J. Somashekar,)
XII Addl. Small Causes Judge,
Bangalore.
ANNEXURE
List of the witnesses examined on behalf of plaintiffs:
P.W.1. Smt.Siddamma 19.3.2014 P.W.2. Shri S.Prakash 15.7.2014
List of the documents exhibited on behalf of plaintiffs:
Ex.P1: Notice copy 39 (SCCH-8) S.C.No.932/2013 Ex.P2: Receipt received from Provident Fund Ex.P3: Receipt received from Provident Fund Ex.P4: Acknowledgement Ex.P5: Transfer certificate Ex.P6: C.R.Book Ex.P7 Portion of the contents marked in Sale deed
List of the witnesses examined on behalf of defendant:
DW1 Shri Chikkanna 9.1.2015 DW2 Shri Thimmegowda 19.3.2014
List of the documents exhibited on behalf of defendant:
Ex.D1 Sale agreement
Ex.D2 Petitioner evidence by way of affidavit
Ex.D3 Notice from BWSSB
Ex.D4 Katha Registration
Ex.D5 Ration card
(P.J. Somashekar,)
XII Addl. Small Causes Judge,
Bangalore.