Bangalore District Court
Mrs.Asma W/O Mr.Shakeeb vs Mr.Abdul Samad S/O Mr.K.M. Abdul on 21 February, 2015
IN THE COURT OF THE X ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-26).
Dated this the 21st day of February, 2015.
Present
Sri G.M. KUMBAR, B.Com., LL.B.(Spl.),
X Addl. City Civil & Sessions Judge,
Bangalore.
O.S.No.7281/2011
Plaintiff: Mrs.Asma w/o Mr.Shakeeb
26 years, r/at No.222, Nehrupuram
Shivajinagar, Bangalore-560 051.
(By Sri Syed Shuja Uddin, Adv.)
Vs.
Defendants: Mr.Abdul Samad s/o Mr.K.M. Abdul
Rahim, 36 years, Metal Boxes
Manufacturer, No.25, III Cross now
called as 3rd 'A' Cross, Gandhinagar,
K.G. Halli, Bangalore-560 045.
(By Sri S.A. Ahmed, Adv.)
Date of institution of the suit 12.10.2011
Nature of the suit For ejectment, recovery
of arrears of rent &
damages
Date of the commencement 23.11.2012
of recording of evidence
Date on which the judgment 21.02.2015
Pronounced
Total duration Years Months Days
03 04 09
JUDGMENT
This suit is filed for ejectment and for recovery of arrears of rent and damages.
2 O.S.No.7281/2011
2. The brief facts of the plaintiff's case are that:-
The defendant is a statutory tenant under the plaintiff in respect of commercial premises bearing No.25, situated at 3rd 'A' Cross, Gandhinagar, K.G. Halli, Bangalore-560 045 measuring 33x40 feet on monthly rent of Rs.4,800/- as per rental agreement dated 26.10.2007 with enhancement clause at 20% once in 2 years and tenancy was commenced from 01.01.2008.
The defendant took the schedule premises on monthly rent for commercial purpose i.e., manufacturing of metal boxes and allied items and he has been running the said manufacturing unit from the date of tenancy and however, the defendant had not paid any rent since beginning and every time he used to promise to pay the rent and as such, he avoided to pay the rent and as such, the defendant issued legal notice dated 21.08.2010 terminating the tenancy of defendant and called upon the defendant to pay the arrears of rent and however, the said notice was returned with endorsement as 'no such person in the address' and the defendant managed to send such endorsement in collusion with postal authority and that defendant waited for 4-5 months and again he 3 O.S.No.7281/2011 sent another notice dated 09.03.2011, which was served upon the defendant and however, the defendant gave false reply dated 06.04.2011 admitting the rental agreement, but he stated that he has entered into an agreement of sale with Syed Rahamathulla and further told that he is agreement holder of schedule property. The defendant is fallen in arrears of rent from 01.09.2010 till date of filing the suit for a period of 44 months and however, in view of the provisions of Limitation Act to claim the arrears of rent, the plaintiff has restricted her claims only for arrears of rent for a period of 36 months from 01.10.2008 and total arrears of rent payable by the defendant is Rs.1,60,800/-. The plaintiff has further contended that the defendant has taken false claim of agreement of sale dated 15.12.2007 by father of the plaintiff and he has falsely alleged that Rahamathulla agreed to sell the suit property for Rs.9,00,000/- by receiving advance of Rs.6,00,000/- and that the defendant has committed fraud by creating forged document of sale agreement dated 15.12.2007 and that there is no such agreement of sale executed by Rahamathulla and that the defendant has taken such 4 O.S.No.7281/2011 false contention with intention to avoid his liability to pay the arrears of rent and to vacate the schedule premises. The plaintiff has further submitted that after termination of tenancy, the possession of defendant has become unlawful and therefore, the defendant is liable to pay the damages @ Rs.25,000/- per month from the date of suit till delivery of vacant possession and that defendant is also liable to vacate the schedule premises by paying arrears of rent. Hence, the suit is filed.
3. The defendant appeared and filed written statement, contending that he is not a tenant in the schedule property nor he has executed any rental agreement dated 26.10.2007 and that the allegation of plaintiff that the defendant has not paid the rent since beginning and he is in arrears of payment of rent for a period of 44 months and inspite of several requests, the rent is not paid, etc. are all denied as false. The defendant has submitted that he has not received any legal notice and that he gave suitable reply dated 06.04.2011 and that even though he has entered the premises as a tenant, later he negotiated with plaintiff and her father and entered into an agreement of sale 5 O.S.No.7281/2011 with father of plaintiff and since he is the agreement holder of the suit property, there is no relationship of landlord and tenant. It is further submitted that the defendant has paid sum of Rs.6,00,000/- out of total consideration of Rs.9,00,000/- as per sale agreement dated 15.12.2007 and since he is not a tenant, question of payment of rent and damages as claimed by the plaintiff does not arise and he is put in possession of the schedule property as part performance of sale agreement and therefore, the plaintiff is not entitled for the relief of ejectment, rent and damages and suit is liable to be dismissed.
4. In view of the above pleadings, the following issues are framed:-
1) Whether the plaintiff proves that the defendant is a tenant in the schedule premises by virtue of rental agreement?
2) Whether the defendant proves that the plaintiff's father has executed an agreement of sale dated 15.12.2007 in respect of schedule premises in favour of defendant and that he is in possession of schedule premises as prospective purchaser?6 O.S.No.7281/2011
3) Whether the plaintiff proves that there is valid termination of tenancy?
4) Whether the plaintiff proves that the defendant is in arrears of rent as claimed in the plaint?
5) Whether the plaintiff is entitled for mesne profits?
6) What decree or order?
5. During the course of evidence, the plaintiff examined P.W.1 and got marked documents Ex.P.1 to Ex.P.11 and closed her side. The defendant has not adduced any oral or documentary evidence.
6. Heard arguments of both.
7. My answer to the above issues is as follows:-
1) In the affirmative;
2) In the negative;
3) In the affirmative;
4) In the affirmative;
5) In the affirmative;
6) As per final order, for the following:-
REASONS
8. ISSUES No.1 & 2:- It is the case of the plaintiff that the defendant is a tenant under rental agreement 7 O.S.No.7281/2011 dated 26.10.2007 in the schedule premises and since the defendant has committed default to pay the rent, the tenancy is terminated by issuing notice. Whereas the defendant has disputed the relationship of landlord and tenant by contending that after entering into the suit schedule property as a tenant, subsequently there was an agreement of sale dated 15.12.2007 executed by father of the plaintiff and therefore, the relationship of landlord and tenant was came to an end and that from the date of agreement, he is in possession as a prospective purchaser.
9. In order to prove the jural relationship, the plaintiff entered the witness box as P.W.1 by filing her affidavit evidence. She deposed that the defendant is a tenant by virtue of rental agreement dated 26.10.2007 and initial rent was Rs.4,000/- per month, which was enhanced after 2 years at 20% and the present rent is Rs.4,800/- per month. The P.W.1 has deposed that the defendant has created a false agreement of sale dated 15.12.2007 by making forgery in the name of her father- Rahamathulla and the defendant is making false claim that he is a prospective purchaser under the said 8 O.S.No.7281/2011 agreement of sale. She has further denied the contention of the defendant that her father received Rs.6,00,000/- out of total consideration amount of Rs.9,00,000/-, etc.
10. The oral evidence of P.W.1 is supported by documents Ex.P.1 to Ex.P.11. The Ex.P.1 is rental agreement. Since it is Xerox copy, same is marked by Court subject to proof. However, the defendant did not raise any objection to mark the said document- copy of rental agreement. Though this rental agreement for a period of 5 years is unregistered document, same can be used for collateral purpose to prove the relationship between the parties. It is clear from the defence taken by the defendant that he has no dispute regarding execution of rental agreement. On the other hand, he has admitted in the written statement para-3 that he entered the premises as a tenant but subsequently he entered into agreement of sale with Rahamathulla. The defendant gave reply to the legal notice of plaintiff as per Ex.P.8. In para-2 of Ex.P.8, the defendant has admitted that he was a tenant in respect of suit premises by paying security deposit of Rs.1,00,000/- under rental agreement dated 26.10.2007 and he has put up construction on the vacant 9 O.S.No.7281/2011 site, which was leased in his favour. No doubt in para-3 of Ex.P.8, he deposed that subsequently on 15.12.2007, Syed Rahamathulla executed agreement of sale in his favour in respect of schedule premises. Thus, it is evident from the defence put forth by the defendant that he executed rental agreement as per Ex.P.1 at the time of inducting him as a tenant in the schedule premises. It is argued by learned counsel for plaintiff that it was a vacant site at the time of lease and thereafter the defendant constructed the premises by investing huge amount. But such contention is not proved by the defendant by adducing any oral or documentary evidence. The defendant has not produced any construction plan or any document to show the investment of funds for construction of premises. Mere defence of the defendant that he took the vacant site and later he constructed is not sufficient to prove the said contention. On the other hand, the rental agreement Ex.P.1 executed by defendant speaks that the schedule property was fully constructed shop premises with electricity facility, fittings and fixtures thereon. In clause- 5 of Ex.P.1, the defendant agreed to pay regular 10 O.S.No.7281/2011 electricity charges as per consumption bill. As per clause- 7, the defendant agreed that he should not add or alter any structure on the existing shop premises without written consent of the owner. Thus, it is clear from Ex.P.1 that there was constructed building with electricity facility and the defendant was not permitted to put up any structure on the suit property without consent of plaintiff. During the course of argument, the defendant produced electricity bill issued in his name. But the P.W.1 has clarified in the cross-examination that earlier the power installation was standing in her name and subsequently the defendant got changed the installation in his name without her consent. However, it is clear from Ex.P.1- rental agreement that the plaintiff is a landlord and the defendant is tenant in the schedule premises.
11. In a suit for ejectment, the plaintiff has to prove the jural relationship of landlord and tenant. The plaintiff need not prove the absolute ownership of suit schedule property. As per Section 116 of Indian Evidence Act, the tenant cannot question the ownership of the landlord. The father of the plaintiff never disputed right of his daughter to claim the landlordship of the schedule 11 O.S.No.7281/2011 premises. When the father himself has not disputed the ownership and right of the plaintiff to file a suit for ejectment, the defendant is totally prohibited from raising such question before the Court. As per Ex.P.1, he has become the tenant of the plaintiff and the execution of Ex.P.1 is also admitted by the defendant.
12. It is the contention of the defendant that he is in possession of suit property as prospective purchaser, but not as a tenant. As discussed above, he is a tenant under the plaintiff and that plaintiff has not executed any such document of agreement of sale. It is the contention of the defendant that father of plaintiff- Rahamathulla executed agreement of sale. The burden is upon the defendant to prove his possession as prospective purchaser. But the defendant neither entered the witness box nor produced any document to substantiate his contention that he is in possession as prospective purchaser. The defendant has not produced the agreement of sale nor examined any witness to the said document. The alleged agreement of sale is dated 15.02.2007. But till today the defendant has not filed any suit for specific performance of agreement of sale against 12 O.S.No.7281/2011 Rahamathulla. On the other hand, the plaintiff filed suit for permanent injunction bearing O.S.No.25752/2011 before Mayohall Court and said suit is pending. The plaintiff has produced certified copy of plaint, I.A.No.1 with affidavit and written statement filed by herself and her father in O.S.No.25752/2011 and they are marked as Ex.P.9 to Ex.P.11. In para-4 of the plaint- Ex.P.9, the defendant has admitted that he was inducted as a tenant in the suit schedule property. He has further contended that he took the vacant site on lease and thereafter constructed building and got power connection after construction. But the said contention is not proved as discussed above. The plaintiff of this suit is second defendant in Ex.P.9 and herself and her father filed written statement as per Ex.P.11 by denying the contention of the defendant regarding agreement of sale. As such, her father has denied the said agreement of sale as false, fabricated and forged document. Even the plaintiff and her father have contended in the said suit that the agreement of sale should be sent to Forensic Science Laboratory to find out the forgery of signature of Rahamathulla appearing on agreement of sale. But till 13 O.S.No.7281/2011 today the defendant has not sent the said document to Forensic Science Laboratory.
13. Though this Court cannot decide the question of execution of agreement of sale in favour of defendant, but in order to decide issue No.1, there must be prima facie evidence from the side of defendant to show that he is not in possession as a tenant, but he is in possession as prospective purchaser. But the defendant even has not produced any prima facie material to prove issue No.2. Mere filing of suit for injunction against the plaintiff and her father is not sufficient to hold that the defendant is not a tenant in the suit property on the date of filing the suit. Though the P.W.1 is cross-examined in length by defendant's counsel, nothing is elicited from her mouth to disprove the plaintiff's case and jural relationship.
14. It is argued by defendant's counsel that as per terms of agreement of sale, the plaintiff and her father agreed that the defendant should not pay any rent till execution of sale deed. But no such defence is pleaded in the written statement nor there are any recitals to that effect in the agreement of sale. The defendant has 14 O.S.No.7281/2011 produced Xerox copy of agreement of sale. It is prima facie clear from the said document the signature of plaintiff as a witness and signature of her father appearing on said document that are totally different from their admitted signatures appearing in this case and also in Ex.P.11- written statement. Hence, for the reasons stated above, I hold that the plaintiff has proved issue No.1 and on the other hand, the defendant has failed to prove issue No.2 and accordingly, I answer issue No.1 in affirmative and issue No.2 in negative.
15. ISSUE No.3:- The P.W.1 has deposed that she issued legal notice to the defendant on 21.08.2010 and same was returned with endorsement as "no such person in the address" and thereafter she issued the same notice once again on 09.03.2011. But surprisingly the defendant gave reply to the first notice dated 21.08.2010 though it was returned as unserved. The said reply is marked as Ex.P.8 and first notice of plaintiff is at Ex.P.2. As such, Ex.P.8 itself is sufficient to prove that the notice- Ex.P.2 is duly served upon the defendant. On perusal of Ex.P.2, it is clear that the tenancy of defendant is terminated by issuing such notice and 15 O.S.No.7281/2011 further defendant was called upon to deliver vacant possession on expiry of 6 months from the date of notice by paying the arrears of rent. Since the premises was taken for manufacturing of metal boxes and allied items, the plaintiff issued 6 months notice and filed the suit after expiry of 6 months as per terms of Section 106 of Transfer of Property Act. In view of my findings on issue No.1 & 2, I hold that the plaintiff is entitled to terminate the tenancy and accordingly, the tenancy is terminated lawfully by issuing notice as provided u/s 106 of Transfer of Property Act. The defendant has not disputed receipt of notice as per Ex.P.2. Hence, I answer issue No.3 in affirmative.
16. ISSUE No.4:- The rate of rent as mentioned in rental agreement is not in dispute. The rent was enhanceable at 20% once in 2 years. It is not the case of the defendant that he has paid the rent since beginning. The defendant has failed to prove his contention that the plaintiff agreed not to receive the rent till execution of sale deed. Therefore, the defendant is liable to pay the rent. The plaintiff has claimed rent for a period of 3 years preceeding to the date of filing the suit. From 01.10.2008 16 O.S.No.7281/2011 to 31.12.2009, rent is claimed @ Rs.4,000/- per month and thereafter from 01.01.2010 upto date of filing the suit, rent is claimed @ Rs.4,800/- per month. Accordingly, the defendant is liable to pay the arrears of rent for a period of 3 years from 01.10.2008 to 30.09.2011 to the tune of Rs.1,60,800/-. There is no evidence to show the payment of rent by the defendant. Hence, I hold that the plaintiff is entitled for recovery of rent. Accordingly, I answer issue No.4 in affirmative.
17. ISSUE No.5:- After termination of tenancy, the possession of defendant over the schedule property has become unlawful. The plaintiff has claimed mesne profit/damages @ Rs.25,000/- per month. No doubt the defendant is liable to pay the damages from the date of suit. But the plaintiff has failed to adduce any satisfactory evidence to claim the damages @ Rs.25,000/- per month. Therefore, such claim requires an enquiry under Order 20 Rule 12 CPC. Hence, I answer issue No.5 in affirmative with an observation that plaintiff is entitled for damages from the date of suit till delivery of vacant possession by filing separate application under Order 20 Rule 12 CPC to determine quantum of damages. 17 O.S.No.7281/2011
18. ISSUE No.6:- In view of my findings on issue No.1 to 5 and for the reasons stated above, I proceed to pass the following:-
ORDER Suit of the plaintiff is decreed with cost.
The plaintiff is entitled to recover the vacant possession of schedule premises from defendant and the defendant is directed to hand over the vacant possession within two months from this day.
The plaintiff is entitled to recover arrears of rent of Rs.1,60,800/- from the defendant with interest at 8% p.a. from the date of suit till its realization in full.
The plaintiff is entitled for damages from the date of suit till delivery of vacant possession. She is at liberty to file separate application under Order 20 Rule 12 CPC to determine quantum of damages.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by him on computer, printout taken, corrected and then pronounced in the Open Court on this the 21st day of February, 2015).
(G.M. KUMBAR) X Addl. City Civil & Sessions Judge, Bangalore.18 O.S.No.7281/2011
ANNEXURE List of witnesses examined for the plaintiff:
PW.1 : Smt.Asma List of documents exhibited for plaintiff:
Ex.P1 : Xerox copy of rent agreement marked subject to proof Ex.P2 : Copy of legal notice Ex.P3 : UCP receipt along with postal receipt Ex.P4 : Returned RPAD cover Ex.P5 : Postal receipt Ex.P6 : UCP receipt Ex.P7 : Two postal acknowledgements Ex.P8 : Reply notice dt.6.4.2011 Ex.P9 : C.C. of plaint in O.S.No.25752/2011 Ex.P10 : C.C. of IA in O.S.No.25752/2011 Ex.P11 : C.C. of W.S. in O.S.No.25752/2011 List of witnesses examined and documents exhibited for defendant:
Nil (G.M. KUMBAR) X Addl. City Civil & Sessions Judge, Bangalore.