Karnataka High Court
Sri B A Venkateshan vs Sri R Shivakumar on 23 January, 2025
Author: K.Somashekar
Bench: K.Somashekar
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NC: 2025:KHC:3333-DB
RFA No. 406 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JANUARY, 2025
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
REGULAR FIRST APPEAL NO.406 OF 2019 (POS)
BETWEEN:
1. SRI B. A. VENKATESHAN
(DECEASED)
S/O. LATE B. C. ANJANAPPA
AGE: 64 YEARS
RESIDENT OF NO.2444, HAL 2ND STAGE
BENGALURU - 560 008.
REPRESENTED BY:
A. SMT. SARASWATHI M. D.
W/O. LATE B. A. VENKATESHAN
AGED ABOUT 66 YEARS
RESIDING AT NO.2444, 16TH B MAIN
NEAR BESCOM OFFICE
INDIRANAGAR, HAL 2ND STAGE
Digitally signed by
MOUNESHWARAPPA BENGALURU - 560 008.
NAGARATHNA
Location: HIGH
COURT OF
KARNATAKA B. SRI SRINIVAS V.
S/O. LATE B. A. VENKATESHAN
AGED ABOUT 46 YEARS
RESIDING AT NO.2444, 16TH B MAIN
NEAR BESCOM OFFICE
INDIRANAGAR, HAL 2ND STAGE
BENGALURU - 560 008.
C. MS. RASHMI V.
D/O. LATE B. A. VENKATESHAN
AGED ABOUT 42 YEARS
RESIDING AT NO.2444, 16TH B MAIN
NEAR BESCOM OFFICE
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NC: 2025:KHC:3333-DB
RFA No. 406 of 2019
INDIRANAGAR, HAL 2ND STAGE
BENGALURU - 560 008.
...APPELLANTS
(BY SRI GOWTHAM M., ADVOCATE)
AND:
SRI R. SHIVAKUMAR
S/O. SRI RAMESH
AGE: 42 YEARS
RESIDENT OF NO.28/2
13TH CROSS, CUBBONPET
BENGALURU - 560 002.
...RESPONDENT
(BY SRI MANJUNATH B. R., ADVOCATE)
***
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
C.P.C., AGAINST THE JUDGMENT AND DECREE DATED 31.10.2018
PASSED IN OS.NO.1936 OF 2014 ON THE FILE OF THE I ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BANGALORE DECREEING THE
SUIT FOR POSSESSION.
THIS REGULAR FIRST APPEAL, COMING ON FOR HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR
and
HON'BLE MR JUSTICE VENKATESH NAIK T
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE VENKATESH NAIK T) This appeal is filed by the appellants-defendants challenging the judgment and decree dated 31.10.2018 passed -3- NC: 2025:KHC:3333-DB RFA No. 406 of 2019 by the learned I Additional City Civil and Sessions Judge, Bengaluru (CCH-2), (hereinafter referred to as 'the trial Court', for brevity) in O.S.No.1936/2014.
2. For the purpose of convenience, the parties are referred to as per their ranking before the trial Court. The appellant is the defendant and respondent is the plaintiff before the trial court.
3. The brief facts of the case are that, the plaintiff filed a suit against the defendant for ejectment in respect of suit schedule property. It is the case of the plaintiff that he is absolute owner of the suit schedule property having acquired the same through a registered sale deed dated 12.02.2009 executed by the defendant. Thereafter, the plaintiff got transferred khata into his name and he has been paying taxes. Soon after execution of the sale deed, the defendant was inducted as tenant in the suit property on a monthly rent of Rs.15,000/- from 01.03.2009 on oral agreement, but the defendant became defaulter and he never paid rent nor vacated the premises. Hence, on 01.03.2013, the plaintiff got issued notice and requested the defendant to quit and deliver -4- NC: 2025:KHC:3333-DB RFA No. 406 of 2019 the vacant possession of the suit property and the notice was served upon the defendant. However, the defendant gave untenable reply. Now the defendant is in possession of the property as unauthorized tenant and he is also liable to pay damages at Rs.15,000/-. Thus the plaintiff filed suit for ejectment. Defendant appeared through his counsel before the trial Court and filed his written statement denying the claim of the plaintiff as false. He denied the ownership of the plaintiff and also jural relationship between himself and the plaintiff. He also denied the monthly rent of Rs.15,000/- p.m. agreed to be payable to the plaintiff. The defendant has taken specific plea that he is in possession of the suit property as lessee by virtue of the lease agreement dated 12.02.2009 executed by the plaintiff and has paid Rs.10.00 lakhs towards lease and lease period was three years. Further, the plaintiff has executed sale agreement dated 21.04.2009 in favour of the defendant in respect of the suit property, wherein the plaintiff agreed to sell the schedule property in favour of the defendant. In that regard, defendant had filed a suit in O.S.No.8764/2011 for specific performance of the contract, which is pending and therefore the question of paying rent to the plaintiff would not -5- NC: 2025:KHC:3333-DB RFA No. 406 of 2019 arise and he is not liable to pay any arrears of rent or damages to the plaintiff. The cause of action is stated to be created and concocted one and hence, the suit of the plaintiff is not maintainable and he prayed to dismiss the suit.
4. On the basis of the pleadings, the trial Court framed the following issues:
ISSUES
1. Whether the plaintiff proves that he is the absolute owner of the plaint schedule property?
2. Whether the plaintiff proves that the defendant was a tenant of suit schedule property under the plaintiff as pleaded?
3. What the plaintiff further proves the termination of tenancy of the defendant from the suit schedule property?
4. Whether the plaintiff is entitled for damages as prayed?
5. Whether the plaintiff is entitled for the relief of ejectment of the defendant from the suit schedule property as prayed?
6. What decree or Order?
5. The plaintiff in support of his case examined himself on oath as PW.1 and relied upon three documents as per Exs.P1 to P3. On the other hand, the defendant got examined himself as -6- NC: 2025:KHC:3333-DB RFA No. 406 of 2019 DW.1 and relied upon Ex-D1, certified copy of the order sheet in O.S.No.8764/2011.
6. The trial Court after recording the oral and documentary evidence on record answered issue Nos.1 to 5 in the affirmative and consequently, decreed the suit of the plaintiff with cost.
7. Aggrieved by the judgment and decree of the trial Court, the defendant preferred this appeal.
8. Heard Sri. Goutham M, learned counsel appearing for the appellant/defendant and learned counsel Sri. Manjunath B.R., appearing for the respondent/plaintiff.
9. Learned counsel for the appellant/defendant contended that the judgment and decree passed by the trial Court is opposed to law and facts and circumstance of the case. The trial Court has not carefully scrutinized the material evidence placed by the defendant and witnesses examined on his behalf. Though the plaintiff failed to prove the jural relationship between the plaintiff and the defendant, however, the trial Court held that, it is proved. In fact, no agreement -7- NC: 2025:KHC:3333-DB RFA No. 406 of 2019 was produced and no rental receipt has been furnished. Further, the plaintiff has not placed any document or has not examined any witnesses to show that the defendant was paying rent to him. Since the jural relationship is not established, the question of termination of tenancy, by issuing notice, would not arise. The trial Court has wrongly held that the plaintiff is the owner of suit schedule property and without any proof, the trial Court held that the defendant is in possession of suit schedule property, as tenant. The trial Court has misconceived the fact that though the possession originally was given to the defendant on a lease agreement, later, it was continued as part performance of the sale agreement. But, the trial Court wrongly held that the plaintiff has disputed the signature on the Sale Agreement and the hand-writing expert observed that the admitted signature found in the Sale Deed and the signature found in the disputed Sale Agreement are one and the same, but this aspect was not considered by the trial Court in proper manner. It is contended that the defendant filed O.S.No.8764/2011 for the relief of specific performance of the contract and paid a consideration of Rs.38.50 lakhs and remaining amount to be paid was -8- NC: 2025:KHC:3333-DB RFA No. 406 of 2019 Rs.50,000/-. But, the suit filed by the defendant was dismissed. Hence, the defendant preferred an appeal in RFA No.1792 of 2017, which is pending before this Court. This aspect is also not considered by the trial Court. In fact, the appellant/defendant is in possession of the property by virtue of agreement of sale dated 21.04.2009 executed by the plaintiff/respondent. On all these grounds, learned counsel prayed to allow this appeal.
10. Sri Manjunath B.R, learned counsel for the respondent/plaintiff submits that the plaintiff purchased the schedule property from the appellant/defendant under a registered sale deed 12.02.2009. The plaintiff has proved that he is the owner of the schedule property. The plaintiff has also proved that defendant was inducted as a tenant in the schedule property and had agreed to pay Rs.15,000/- per month and later, he became defaulter. Hence, he issued termination notice to the defendant and same was served on the defendant. In spite of service of notice, the defendant did not quit and vacate the schedule property in favour of the plaintiff. Hence, the trial Court considering the oral and -9- NC: 2025:KHC:3333-DB RFA No. 406 of 2019 documentary evidence has rightly decreed the suit, which does not call for interference by this Court. Hence, learned counsel prayed to dismiss the appeal.
11. After hearing the learned counsel for both the parties, the points that arise for consideration in this appeal are:
i) Whether the plaintiff proved that the defendant who was a tenant under him, failed to pay rent regularly, thus, terminated his tenancy legally?
ii) Whether the appellant/defendant proved that his possession is protected under Sale Agreement as contended by him?
iii) What order and decree?
Point No.1:
12. As per the case of the plaintiff, he is the owner of the suit schedule property and the defendant was a tenant of schedule property under him. As the defendant failed to pay the rents regularly, the plaintiff terminated the tenancy of the defendant and hence, he is entitled for damages from the defendant. But, as per the contention of the defendant, he is in
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NC: 2025:KHC:3333-DB RFA No. 406 of 2019 possession of the schedule property by virtue of Agreement of sale dated 21.04.2009 executed by plaintiff in favour of the defendant, wherein he paid in all Rs.38.00 lakhs and in this regard, he also filed suit for specific performance of contract in O.S.No.8764/2011.
13. In order to establish the contention of the plaintiff, the plaintiff himself examined on oath as PW.1 and in his chief examination, he has reiterated the averments made in the plaint. In support of his oral evidence, he relied upon Ex.P1 notice of termination issued to the defendant, wherein he has terminated the tenancy of the defendant, Ex.P2 is the reply given by the defendant and Ex.P3 is the khata certificate, wherein the name of the plaintiff is shown as owner of the schedule property.
14. On the other hand, defendant himself examined on oath as DW.1 and in his chief examination, he has reiterated the averments made in the written statement. In support of his oral evidence, he relied upon Ex.D1 certified copy of the order sheet in O.S.No.8764/2011.
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15. From the perusal of the oral and documentary evidence on record, it appears that the plaintiff purchased the suit schedule property from defendant under registered sale deed dated 12.02.2009. In this regard, in RFA No.1637/2016(RES), which was preferred by the plaintiff against the defendant, the Co-ordinate Bench of this Court has confirmed the title of the plaintiff, as he is the absolute owner of the suit schedule property. Further, from the perusal of the oral evidence of the parties, it appears that the plaintiff purchased the suit schedule property from the defendant under registered sale deed on 12.02.2009 and as such, the defendant was inducted to the schedule property as tenant on an oral agreement, on a monthly rent of Rs.15,000/- from 01.03.2009, but, the defendant failed to pay the rents regularly since inception. Therefore, the defendant became chronic defaulter in paying the rents regularly to the plaintiff and since, the defendant became defaulter in respect of payment of rents and since, the schedule property was required for personal use of the plaintiff, he terminated the defendant's tenancy, by issuing notice, vide Ex.P2 and called
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NC: 2025:KHC:3333-DB RFA No. 406 of 2019 upon the defendant to quit, vacate and deliver vacant possession of the suit schedule property. Point No.2:-
16. In the instant case, the defendant admitted the ownership of the plaintiff in respect of the schedule property and he also admitted issuance of legal notice, however, he denied the notice of termination issued by the plaintiff.
Whereas, the defendant, in one breath, has taken up the contention that he is in possession of the suit schedule property as a lessee as per oral lease agreement dated 12.02.2009 for a period of 3 years and in another breath, he has taken up the contention that, the plaintiff has executed a sale agreement dated 21.04.2009 in his favour and as the plaintiff failed to execute registered sale deed in favour of the defendant, the defendant filed suit for specific performance of contract in O.S.No.8764/2011, which is pending consideration before the Civil Court. In order to establish the contention of the defendant that the plaintiff executed sale agreement dated 21.04.2009, wherein, the plaintiff received advance consideration of Rs.10.00 lakh, he has not placed any such
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NC: 2025:KHC:3333-DB RFA No. 406 of 2019 material before the Court to establish that he paid advance consideration of Rs.10.00 lakh to the plaintiff. Further, the defendant has not placed any such Agreement of sale alleged to have been executed by the plaintiff in favour of the defendant. Further, PW.1, in his cross examination, has categorically denied that there was agreement between himself and the defendant, wherein, he had agreed to sell the suit schedule property for a sum of Rs.38,50,000/- in favour of the defendant and that he received a sum of Rs.38,50,000/- out of full sale consideration amount of Rs.39.00 lakhs.
17. DW.1 in his evidence has categorically admitted that the plaintiff is the owner of the suit schedule property and he is in possession of the property as a tenant. From the perusal of the contention of the defendant, he has taken up contention that he is in possession of the schedule property as a lease holder, and also as a agreement of sale holder. Further, the counsel for the appellant/defendant has vehemently contended that, defendant is in possession of the property by virtue of sale agreement, which is in permissive nature. Possession is an incident of ownership and can transferred by the owner of an
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NC: 2025:KHC:3333-DB RFA No. 406 of 2019 immovable property to another, such as, in a lease. Possession is important when there are no title documents and other relevant records before the Court, but, once, the documents and records of title come before the Court, it is the title, which has to be looked into first and due weightage be given to it. Possession cannot be considered in vacuum. Suit can be filed by the title holder for recovery of possession or it can be one for ejectment of an ex-lessee or for mandatory injunction requiring a person to remove himself or it, can be suit under Section 6 of the Specific Relief Act to recover possession. A title suit for possession has two parts:
1. Adjudication of title, and
2. Adjudication of possession.
If the title dispute is removed and the title is established by one or the other party, then in effect, it becomes a suit for ejectment. In an action for recovery of possession of immovable property, or for protecting possessions thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title, will be presumed to have
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NC: 2025:KHC:3333-DB RFA No. 406 of 2019 been under and in subordination to the legal title. There is a presumption that possession of a person, other than the owner, if at all, it is to be called possession, he is permissive on behalf of the title holder. Whereas, in this case the title of plaintiff is admitted by the defendant. The defendant also admitted that he sold the schedule property in favour of the plaintiff under the registered sale deed dated 12.02.2009. Once the title is transferred to the plaintiff, the defendant is not the owner of the property. Therefore, his possession over the schedule property is in the permissive nature.
18. In this case, the premises in question was given by the plaintiff to the defendant as tenant, but, the defendant described it as lessee or his possession is in the nature of permissive or virtue of agreement of sale. The principles of law in this regard are crystallized as under:
1. No one acquires title to the property if he or she was allowed to stay in the premises, which is in the permissive in nature or as a tenant. Even by long possession of years or decades such person would not acquire any right or interest in the schedule property.
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2. The lessee or a person who is in possession of schedule property as a agreement holder can never acquire interest in the property irrespective of his long possession. The defendant has to give possession forthwith on demand to the plaintiff. The Court is justified in protecting the title and possession on the plaintiff, but, the defendant has taken several pleas in the absence of any material particulars or evidence before the trial Court and his possession in the nature of permissive cannot be permissible, since, the protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement or agreement of sale in his favour. Possession of defendant of the past is one thing and the right to remain or continue in future is another thing. It is the latter which is usually more in controversy than the former. Wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detail pleadings, particulars and documents to support his claim in order to continue in possession. The person averring a right to continue in possession shall, as far as possible, give detail particular specific pleadings along with the documents to support his claim and details of
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NC: 2025:KHC:3333-DB RFA No. 406 of 2019 subsequent conduct which establish his possession. It would be imperative that one who claims possession, must give all such details such as:-
A. Who is/are the owner of the property;
B. Title of the property;
C. who is in possession of the title documents; D. Identity of claimant or claimants' possession; E. The date of entry into the possession; F. How he came into possession-whether he purchased the property or inherited or got the same in gift or by any other method;
G. In case he purchased the property, what is the consideration, if he has taken it on rent, how much is the rent, license fee or lease amount;
H. If he has taken on rent, license fee or lease- then -insist on rent deed, license deed or lease deed;
I. who are the persons in possession/occupation or otherwise living with him, in what capacity, as family members, friends or servants etc., J. Subsequent conduct i.e., any event which might have extinguished his entitlement to possession or caused shift therein and;
K. Basis of his claim that not to deliver possession, but, continue in possession.
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19. Apart from these pleadings, the defendant must furnish documentary proof in support of his pleadings and contentions. All those proposed documents could be relevant, which come into existence, after the transfer of title or possession or the encumbrance as claimed. Whereas in the instant case, the defendant has not placed any such documents as described hereinabove. Hence, the defendant has failed to prove his contention. On the other hand, the plaintiff is able to prove that he is the owner of the suit schedule property, by virtue of the sale deed dated 12.02.2009 and inducted the defendant as tenant in the schedule property.
As the defendant failed to pay rents regularly, the plaintiff terminated his tenancy. Therefore, the defendant is not entitled for any reliefs as sought for in this appeal. In this case, the plaintiff has sought the relief of possession, arrears of rent of Rs.9.00 lakh from 01.03.2009 till 01.03.2014 and damages at the rate of Rs.15,000/- per month from the date of suit till the defendant delivers the vacant possession of the schedule property. Looking into any angle, the defendant failed to pay the rents since inception and as such the plaintiff has terminated his tenancy with effect from 01.04.2013 by issuing
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NC: 2025:KHC:3333-DB RFA No. 406 of 2019 legal notice, hence, the possession of the defendant in respect of the schedule property becomes unauthorized occupant and hence, he is liable to pay damages equal to that of rent amount as claimed by the plaintiff.
20. In the similar facts and circumstances, the Hon'ble Apex Court in the case of MARIA MARGARIDA SEQUEIRA FERNANDES and Others v. ERASMO JACK DE SEQUEIRA(DEAD) THROUGH LRs, reported in 2012 (5) SCC 370, wherein the Hon'ble Apex Court held that gratuitous possession-permissive possession seeking relief to retain or continue possession not permissible as caretaker, permissive possession, gratuitous possession is not maintainable.
21. Further, the Hon'ble Apex Court in the case of A. SHANMUGAM V. ARIYA KSHATRIYA RAJAKULA VAMSATHU MADALAYA NANDHAVANA PARIPALANAI SANGAM AND OTHERS, represented by its President, reported in AIR 2012 SC 2010, has observed that the plaintiff is in possession of the property as a watchman, caretaker or servant employed to look after property do not acquire interest in property irrespective of his long possession. Thus, he is not
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NC: 2025:KHC:3333-DB RFA No. 406 of 2019 entitled for any reliefs against real owner of suit property.
22. Whereas in the instant case, defendant has agreed the title of the property, he also agreed that he is in possession of the property as a tenant in one breath and he is in possession of the property by virtue of agreement of sale, in another breath. To substantiate his claim, the defendant has not placed any material before the trial Court or before this Court. Since, the defendant/appellant failed to prove his contention, there is no merit consideration in the appeal. The judgment and decree passed by the trial Court is in accordance with law, hence, no interference is called for by this Court. Therefore, he is not entitled to any relief against real owner. Thus, there is no merit consideration in the appeal. Accordingly, we pass the following:-
ORDER
1. The appeal filed by the appellant is dismissed.
2. Consequently, the judgment and decree dated 31.10.2018 passed in O.S.No.1936/2014 by the learned I Additional City Civil and Sessions Judge, Bengaluru is hereby confirmed.
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3. No order as to costs.
4. Registry is directed to send the trial Court records forthwith with copy of this judgment.
In view of the dismissal of the appeal, pending applications, if any, shall stand disposed of.
Sd/-
(K.SOMASHEKAR) JUDGE Sd/-
(VENKATESH NAIK T) JUDGE MN/-
List No.: 1 Sl No.: 21