Bangalore District Court
Smt.Laksmamma vs Smt.Vimala on 16 October, 2017
IN THE COURT OF THE CHIEF JUDGE,
COURT OF SMALL CAUSES AT BANGALORE
DATED THIS THE 16th DAY OF OCTOBER 2017
PRESENT: SRI H.P.SANDESH, B.A.L., LL.B.,
CHIEF JUDGE
H.R.C. No.1/2017
Petitioner: Smt.Laksmamma,
Aged about 49 years,
Wife of late Obalappa,
Residing at No.91,
Manjunatha Nagar, 6th cross,
Marathahalli, Bangalore -37.
(By Sri D.N., Advocate)
-Vs-
Respondent: Smt.Vimala,
Wife of Stalin,
Aged about 28 years,
R/at Obalappa House,
No.19, Manjunathana Nagar,
6th cross, Marathahalli,
Bangalore -37.
(By Sri N.G., Advocate)
*********
ORDER
The petitioner has filed this petition under section 27 and 31(1)
(a) of Karnataka Rent Act, 1999 seeking an order of eviction against the respondent and also to direct the respondent to quit, vacate and deliver the vacant possession of the 'B' schedule property to the petitioner and SCCH-1 2 HRC No.1/ 2017 to direct the respondent to pay the damages in respect of the schedule B property at the rate of Rs.3,000/per month from the date of petition till delivery of actual possession to the petitioners and for such other reliefs.
2. The brief facts of the case are:
It is the case of the petitioner that her husband late Obalappa, was the absolute owner in lawful possession and enjoyment of the house property situated at 6th cross, Manjunatha Nagar, Marathalli, having khatha No.36, measuring east to west 28 feet and north to south 10 feet consisting of two portion of ACC sheet roofed house, which is more fully described in the schedule. The petitioner's husband having acquired the same by virtue of Hakkupatra issued by Chief Officer HA Sanitary board, Bangalore -17 issued under Ashreya project scheme by the State of Karnataka vide No.HASB RITR A (1)/92-93. During the life time of Obalappa, he was in possession and exercising his right of ownership over the schedule property.
3. It is further averred that the petitioner's husband obalappa died on 02.08.2013 leaving behind the petitioner as his legal heir and successors to his estate. The petitioner has got three sons by name Rajendra and two others and they are residing in both houses for the past several years. The respondent is the close relative of petitioner's SCCH-1 3 HRC No.1/ 2017 husband and in that connection the respondent has approached the petitioner in the early part of the year i.e., May 2012 to accommodate a portion of the house in the schedule B property as the respondent has no house of her own to reside therein and also the respondent has requested the said house to live in for a period of two years and respondent had pleaded her financial difficulties to pay any amount for the said schedule 'B' premises. Hence, petitioner permitted the respondent to stay in the schedule B property for a period of two years. Accordingly the respondent has occupied the portion of the schedule B property in the schedule property towards western side measuring 10x14 feet and accordingly the petitioner and her family members vacated the said premises and put the respondent in possession of the same from the month of May 2012 without paying any rent or advance.
4. It is further averred that after lapse of two years from May 2012, the petitioner started demanding the respondent to quit and deliver the vacant possession of the schedule B property within 15 days, such demand was made in the month of June 2014 for which the respondent went on assuring the petitioner that she will quit and deliver the vacant possession of the schedule B property but she kept SCCH-1 4 HRC No.1/ 2017 on promising but till date not vacated. The petitioner had three sons and they are residing in a small house and since the petitioner required the said premises for the bonafide occupation to accommodate her three sons and their family members. Hence, petitioner caused a legal notice dated 16.02.2015 instructing to quit, deliver the vacant possession of the schedule B property within 15 days from the date of issuance of legal notice. The notice issued to the defendant through speed post was duly served on the defendant. After receipt of the legal notice the respondent has requested the petitioner to extend the period for one year for vacating and agreed to pay a sum of Rs.1000/p.m. and the respondent has paid security deposit amount of Rs.10,000/- with the condition that the security deposit amount shall be refunded at the time of vacating the schedule B property. Again after completion of one year the petitioner has requested the respondent to vacate the schedule B property as promised by the respondent and the respondent stopped paying monthly rent from the month of April 2016, the respondent has become a chronic defaulter in payment of rents. The petitioner requested many times but respondent did not vacate the petition schedule premises. Since the oral consent given to the respondent was terminated from the month of April 2016 as the SCCH-1 5 HRC No.1/ 2017 respondent has not paid rents and again the petitioner got issued legal notice on 13.10.2016 calling upon the respondent to quit, vacate and deliver the vacant possession of the schedule B property to the petitioner within 15 days from the date of receipt of the said notice and also to pay the arrears of rents. The notice was served on the respondent and she has not issued reply nor complied the demands made therein. Hence, prays to allow the petition.
5. In pursuance of this petition, this Court issued notice against the respondent, who appeared through her counsel and filed statement of objections.
6. It is contended that the petition is not maintainable either in law or on facts since the same is filed by suppressing all the material facts before the Court. This respondent has denied all the petition averments.
7. The respondent has contended that she is the absolute owner of the property bearing No.510 situated at 6th cross, Manjunath Nagar being in possession of the schedule property without any sort of hindrances disturbances and the property belongs to Government and the same was allotted to respondents grand father and subsequently father of the respondent succeeded to the same and later to the name of SCCH-1 6 HRC No.1/ 2017 the respondent at no point of time the petitioner is the absolute owner of the petition schedule premises. The petitioner is utter stranger to the respondent and petitioner has not produced a single scrape of paper to show the relationship of landlord and tenant which clearly attracts the section 2 of the Rent Act. Hence, prays to dismiss the petition.
8. Petitioner in order to prove her case, examined herself as PW- 1 and she got marked the documents at Ex.P.1 to Ex.P.14. The respondent got herself examined as RW 1 and through her evidence, Exhibits R.1 to R.10 are marked.
9. I have heard the arguments of the Counsel on both sides.
10. After having heard the arguments urged by the petitioner counsel and the respondent's Counsel, perusing the material available on record, the points that arise for my consideration are as under:-
1) Whether the petitioner proves that there exists jural relationship of land lady and tenant between herself and the respondent with respect to the petition schedule premises?
2) Whether the petitioner has made out grounds to invoke Section 27(2) (r) of Karnataka Rent Act 1999 to pass an order ofeviction against the respondent?
3) Whether the petitioner has made out grounds to invoke Section 31(1) (a) of Karnataka Rent Act 1999 to pass an order of eviction against the respondent?SCCH-1 7 HRC No.1/ 2017
4) What Order ?
11. My findings on the above said points is as under:-
1) Point No.1 .. In the negative,
2) Point No.2 .. Does not survive for consideration,
3) Point No.3 .. Does not survive for consideration,
4) Point No.4 .. As per final order, for the following:-
REASONS
12. Point No.1 : It is the contention of the petitioner that the petition schedule premises was originally belonged to Obalappa, the husband of the petitioner, who passed away on 02.08.2013 and petitioner and her sons are the legal heirs of Obalappa. During early part of May 2012 respondent requested to accommodate a portion of the house to live in the said house for a period of two years and pleaded her financial difficulties, hence, she was allowed to occupy the portion of the schedule B property for a period of two years. Accordingly defendant occupied the portion of the schedule B property but now, she is not ready to vacate the petition schedule premises.
13. On the other hand, it is the case of the respondent that she is the absolute owner of the petition schedule premises, actually the property belongs to Government and the same was allotted to respondent's grand father and subsequently father of the respondent succeeded to the same and later to the name of the respondent and at SCCH-1 8 HRC No.1/ 2017 no point of time the petitioner was the owner of the petition schedule premises.
14. The petitioner in order to substantiate her case, got examined herself as PW 1 and in her evidence, she has reiterated the petition averments and also got marked the Hakkupatra, tax paid receipts (4), studio receipt with photo and C.D., death certificate, genealogical tree, office copy of legal notice, postal receipts(2), another legal notice, postal acknowledgement, postal receipt, notarized copy of ration card, electricity bills(2) at Ex.P.1 to 14.
15. The petitioner has been cross-examined by the Counsel for the respondent regarding the jural relationship is concerned, wherein, it is elicited from her that she has not produced any document to show that respondent is her tenant. It is elicited that respondent is her husband's brother's daughter and the respondent is in occupation of the petition schedule premises in a permissive possession since the respondent came and requested her husband stating that she has got differences with her husband. It is also elicited that petition schedule premises site was free site. It is suggested that respondent was in possession of the site and the said suggestion was denied. It is further suggested that site was allotted in favour of Muniyathappa and SCCH-1 9 HRC No.1/ 2017 Narayamma and the said suggestion was also denied. It is suggested that petition schedule premises belongs to the grand father of the respondent and he has obtained the khatha fraudulently in his favour and the same was denied. PW-1 says she has not produced any document to show that the respondent is the tenant and also not produced any document to show that the property stands in her name but the property stands in the name of her husband and her husband is no more and taxes are paid in the name of her husband.
16. It is suggested that respondent is in occupation of petition schedule premises and the said suggestion was denied. Witness volunteers that now the petition schedule premises kept under lock. It is suggested that petition schedule premises is collapsed and the same was denied. It is further suggested that she has filed false case against the respondent and the said suggestion was denied. It is also elicited from the mouth of PW-1 that she has not produced any document to show that the respondent has paid the rent.
17. Further PW-1 was cross-examined and elicited that she has no documents to show that she has received the advance from the respondent and also not issued any receipt for having received the rent. Further she says the respondent has not paid any advance. It is also SCCH-1 10 HRC No.1/ 2017 elicited that her husband has given the petition schedule premises to the respondent and permission was given to stay in the said house only for some time. It is suggested that petition schedule premises belongs to respondent's grand father and after his death, father of the respondent has continued in the said premises and these suggestions were denied.
18. PW-1 further admits that the father of the respondent and her husband both are brother. It is also suggested that in order to knock off the property of the respondent, the present petition is filed and said suggestion was denied. It is also suggested that E.P.1 and P.12 are created and produced and the same is denied.
19. In order to prove the contention of the respondent, she has examined herself as RW-1, reiterated the averments of objection statement and relied upon Ex.R.1 to R.10, i.e., original Election identity card, ta paid receipt, khatha extract , receipt issued by Bengaluru Mahanagara Palike, on line copy of tax paid receipts(10), customer identity card, original Aadhar card, original driving licence , ESI temporary identity certificate issued by ESI, electricity bill.
20. The respondent was subjected to cross-examination by the counsel for the petitioner. In her cross-examination, she says she has SCCH-1 11 HRC No.1/ 2017 produced the documents to show that the Hakkupatra was given in favour of her grand father Munyathappa. It is suggested that in her affidavit she has stated that Smt.Lakshmamma is in occupation of the petition schedule premises from last 30 years since her grand father and her father and now the petitioner is residing in that place and the same was denied. She admits that voter identity card which she has produced mentions the house No.202 of Manjunatha Nagara and she is residing in the very same house. She further admits that Ex.R.2 pertains to site NO.510 of Manjunatha Nagara and the said receipt is standing in the name of Narayanamma and Ex.R.3 also standing in the name of her mother. She admits that site No.510 standing in the name of her mother Narayanamma and there is a AC sheet house and she is residing in the same house. It is suggested that there are 2 houses in the name of her mother in respect of property No. 510 and 202 and the same was denied. Witness volunteers that both are one and the same. A suggestion was made to the RW-1 that she has kept the petition schedule premises under lock and staying in the property No.202 and she says that wall is collapsed and hence, she is staying in the house of her sister. She says she does not know about the petition schedule premises was allotted under the Ashraya scheme in favour of the SCCH-1 12 HRC No.1/ 2017 husband of petitioner. It is suggested that she was only a tenant in respect of the petition schedule premises and she is not having any right and only in order to make the wrongful gain, she is giving false evidence before the Court keeping the premises under lock and staying in the premises NO.202 and the said suggestion was denied.
21. Now, let me appreciate the oral and documentary evidence available on record. It has emerged in the evidence as well as in the pleading that respondent being a relative of petitioner's husband has approached the petitioner for accommodation and husband of the petitioner has given the permissive possession in favour of the respondent. After completion of two years, when she did not vacate the premises a legal notice was issued and thereafter, after receipt of the legal notice respondent agreed to pay rent of Rs.1000/p.m. and also respondent has paid Rs.10,000/- as security deposit with a condition that security deposit amount shall be refunded at the time of vacating the premises.
22. It has to be noted that both the petitioner and the respondent relied upon the documentary evidence in support of their claim. In order to establish the fact of jural relationship between the parties , no SCCH-1 13 HRC No.1/ 2017 document is placed before the Court. PW-1 categorically admits that respondent is her husband's brother's daughter. Further she admits that she has not produced any document to show that respondent is a tenant. It is elicited that petition schedule premises is kept under lock and now the same is not under the occupation of petitioner. Further, she admits that she has no document to show that the respondent has paid the rent. No doubt the legal notice has been served on the respondent but she has not given any reply. PW-1 admits that she has not issued any receipts for having received the rent.
23. It is important to note that at one breath petitioner says respondent has paid the security deposit of Rs.10,000/- but in the cross-examination she says respondent has not paid any advance, which is contrary to her evidence. The petitioner has not placed any document evidencing the jural relationship before the Court. The respondent also categorically denied the jural relationship and relied upon Ex.R.1 to 10. In the cross-examination of RW1, mainly concentrated with regard to the respondent is in occupation of other premises other than the petition schedule premises and nothing is elicited from the mouth of RW-1 regarding jural relationship between the parties. The respondent categorically denied the suggestion made SCCH-1 14 HRC No.1/ 2017 to the respondent that after the receipt of the notice she has orally requested to accommodate for one year, these suggestions have been categorically denied, except admitting the receipt of the notice. It is also emerged in the evidence that she is not in occupation of the petition schedule premises but she volunteers that the wall is collapsed and she is staying in the house of her sister.
24. Now the question is with regard to the jural relationship between the parties. Though respondent and petitioner have relied upon the documents, this Court cannot go into the title of the parties only question to be determined before this Court is whether there exists jural relationship between the parties. The respondent categorically admits that there is no documentary proof to establish jural relationship between the parties. The petitioner admits in the cross-examination that there is no documentary proof to show that respondent is a tenant. She has also admitted that she has not issued rent receipts for receipt of the rents from the respondent.
25. Regarding the jural relationship is concerned, the petitioner has not produced any documentary proof that the respondent is her tenant and in the cross-examination, PW 1 categorically admits that she has not produced any document to show that respondent is her SCCH-1 15 HRC No.1/ 2017 tenant in respect of the schedule premises. On the other hand, the respondent claims that property belongs to Government and the same was allotted to respondents grand father and subsequently father of the respondent succeeded to the same and later to the name of the respondent and petitioner was not the owner of the petition schedule premises at any point of time.
26. Regarding the notice is concerned, the petitioner says that the notice was sent through RPAD and the same was served on the respondent and in order to substantiate the same, the petitioner has produced Ex.P.10 and 11. In the cross-examination, RW-1 admits that she has received the notice issued by the petitioner. From the said fact, it is clear that service of notice is proved by the petitioner.
27. I have already pointed out that this Court cannot give finding regarding the relationship between the parties as the same is not within the ambit of this Court and only this Court has to determine whether there is jural relationship of land lady and tenant between the petitioner and the respondent with respect to the petition schedule premises. Thus, for having considered the material on record, both oral and documentary evidence, there is no any documentary proof regarding the jural relationship between the parties and the petitioner SCCH-1 16 HRC No.1/ 2017 in the cross-examination, categorically admits that she has not produced any material before the Court to show that respondent is her tenant. When such being the case, in the absence of documentary proof and when the petitioner in the cross-examination admitted that respondent is her husband's brother's daughter, this Court cannot come to a conclusion regarding the jural relationship between the parties and in the cross-examination also, nothing is elicited and no oral or documentary evidence is produced to establish the jural relationship between the parties.
28. At this juncture, it is relevant to refer to Section 43 of the Karnataka Rent Act, 1999, which deals with the relationship of landlord and tenant and the relevant portion is extracted for the purpose of clarity:
"Section 43. Dispute of relationship of landlord and tenant.- (1) Where in any proceedings before the Court, a contention is raised denying the existence of relationship of landlord and tenant as between the parties, it shall be lawful for the Court to accept the document of lease or where there is no document of lease, a receipt of acknowledgement of payment of rent purported to be signed by the landlord as prima-facie evidence of relationship and proceed to hear the case.SCCH-1 17 HRC No.1/ 2017
(2) Where-
(a) the lease pleaded is oral and either party denies the relationship, and no receipt or acknowledgement of payment of rent as referred to in sub-section (1) above is produced, or
(b) in the opinion of the Court there is reason to suspect the genuine existence of the document of lease or the receipt or acknowledgement of payment of rent, The Court shall at once stop all further proceedings before it and direct the parties to approach a competent court of civil jurisdiction for declaration of their rights".
In the case on hand also, the respondent has denied not only the fact that he is tenant of the schedule premises, but also denied the payment of rent. Admittedly, there is no written lease agreement between the parties. The petitioner has failed to produce either lease, a receipt of acknowledgement of payment of rent and hence, I am of the opinion that the petitioner has failed to prove the existence of jural relationship between the petitioner and the respondent in respect of the petition schedule premises as landlady and tenant and therefore, the parties have to be directed to approach competent Court of civil jurisdiction to redress their issue and hence, I answer the above point in the negative.
SCCH-1 18 HRC No.1/ 2017
29. Points No.2 and 3 :- In view of my finding on point No.1 in the negative, point No.2 and 3 does not survive for consideration.
30. Point NO.4: In view of the above discussions, I proceed to pass the following:-
ORDER The petition is dismissed as the same is not maintainable, since the petitioner has failed to prove the jural relationship between the parties and the parties are hereby directed to approach competent Court of Civil jurisdiction to establish their claim.
Draw decree accordingly.
(Dictated to the stenographer, transcription thereof corrected, revised, signed and then pronounced by me in the open Court dated this the 16th day of October 2017) (H.P.SANDESH) Chief Judge, Court of Small Causes, Bangalore.
SCHEDULE 'A' PROPERTY All that piece and parcel of property bearing NO.91, measuring 28x10 feet of ACC sheet roofed house with basic amenities, situated at 6th cross, Manjunatha nagar, Marthahalli, Bangalore -37, khatha No.36, total extent of 28x10 feet bounded on the:SCCH-1 19 HRC No.1/ 2017
East by : Property of Narasimhaiah
West by : Property of Lakshmamma
North by : Hanumakka Property and
South by : Property of Nagaraja
(H.P.SANDESH)
Chief Judge,
Court of Small Causes,
Bangalore.
SCHEDULE 'B' PROPERTY
All that piece and parcel of property bearing NO.91, measuring 10x14 feet totally 140 sq.feet of ACC sheet roofed house with basic amenities, situated at 6th cross, Manjunatha nagar, Marthahalli, Bangalore -37, khatha No.36, out of total extent of 28x10 feet bounded on the :
East by : Remaining portion of the
Schedule A property
West by : Property of Lakshmamma
North by : Hanumakka Property and
South by : Property of Nagaraja
(H.P.SANDESH)
Chief Judge,
Court of Small Causes,
Bangalore.
SCCH-1 20 HRC No.1/ 2017
ANNEXURES
LIST OF WITNESSES EXAMINED FOR THE PETITIONER:
PW-1 : Lakshmamma LIST OF WITNESSES EXAMINED FOR THE RESPONDENT :
RW 1 - Vimala LIST OF DOCUMENTS EXHIBITED FOR THE PETITIONERS: Ex.P-1 : Hakkupatra Ex.P-2 : Tax paid receipts (4) Ex.P-3 : Studio receipt with photo and C.D. Ex.P-4 : Copy of Death certificate Ex.P.5 Genealogical tree Ex.P.6 Office copy of legal notice Ex.P.7&8 Postal receipts(2) Ex.P.9 Copy of another legal notice Ex.P.10 Postal acknowledgement Ex.P.11 Postal receipt Ex.P.12 Notarized copy of ration card (original compared) Ex.P.13 & Electricity bills(2) 14 LIST OF DOCUMENTS EXHIBITED FOR THE RESPONDENT: Ex.R.1 Original Election identity card Ex.R.2 Tax paid receipt Ex.R.3 Khatha extract Ex.R.4 Receipt issued by BBMP Ex.R.5 10 Online copy of tax paid receipts Ex.R.6 Customer identity card SCCH-1 21 HRC No.1/ 2017 Ex.R.7 Original Aadhar card Ex.R.8 Original driving licence Ex.R.9 ESI temporary identity certificate issued by ESI Ex.R.10 Electricity bill (H.P.SANDESH) Chief Judge, Court of Small Causes, Bangalore. Kvs/- SCCH-1 22 HRC No.1/ 2017 16.10.2017 Petitioner by DN Respondent by NG For Orders
Order pronounced in Open Court (vide separate Order).
ORDER The petition is dismissed as the same is not maintainable, since the petitioner has failed to prove the jural relationship between the parties and the parties are hereby directed to approach competent Court of Civil jurisdiction to establish their claim.
Draw decree accordingly.
(H.P.SANDESH) Chief Judge.SCCH-1 23 HRC No.1/ 2017