Bangalore District Court
C.Motilal vs Smt.Ameenabi on 1 October, 2016
IN THE COURT OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE
AT BANGALORE CITY - CCH No.23.
Dated this the 1st Day of October, 2016
PRESIDING OFFICER
PRESENT: Sri. Sadananda M. Doddamani.,
B.A.,L.LB.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
O.S.No.2320/2000 c/w O.S.No.6047/2004
PLAINTIFF/S: C.Motilal,
in O.S.No.2320/2000 Major,
S/o Chandanmal,
R/at No.922/2,
III floor, Devidas building,
Nagarthpet,
Bengaluru - 560 002.
(By Sr i.VBS, Advocate)
--Vs.---
DEFENDANT/S: 1. Smt.Ameenabi,
in O.S.No.2320/2000 Since deceased by her LRs
1(a) Ahamadunnisa,
Aged about 47 years,
1(b) Hameedunnissa,
Aged about 45 years,
2 O.S.2320/00 C/w O.S.6047/04
1(c) Noorunnissa,
Aged about 42 years,
1(d) Ghouseunnissa,
Aged about 32 years,
2. Sri.Ansar,
S/o Late Syed Hussain,
Aged about 34 years,
3. Sri.Jameel,
S/o Late Syed Hussain,
Aged about 29 years,
All are residing at No.2,
Gurikar Ramanaik Lane,
S.P.Road cross,
Bengaluru - 560 002.
(By Sri.DGC, BWA, Advocates)
PLAINTIFF/S: 1. Smt.Ameenabi,
in O.S.No.6047/2004 Aged about 65 years,
Since deceased by
Legal representatives
1(a) Ahamadunnisa,
Aged about 47 years,
1(b) Hameedunnissa,
Aged about 45 years,
1(c) Noorunnissa,
Aged about 42 years,
3 O.S.2320/00 C/w O.S.6047/04
1(d) Ghouseunnissa,
Aged about 32 years,
1(a) to (d) are daughters of
Late Syed Hussain,
R/at No.1, Gurikar Rama Naik Lane,
S.P.road cross,
Bengaluru - 2.
(By Sr i.BNA, Advocate)
--Vs.---
DEFENDANT/S: C.Motilal,
in O.S.No.6047/2004 Aged about 47 years,
S/o Chandanmal,
Prop. M/s. Jinanica,
No.1, Gurikar Rama Naik Lane,
S.P.Road cross,
Bengaluru - 2.
(By Sri.VBS, Advocate)
Date of institution of suit: 30.03.2000
In O.S.No.2320/2000
Date of institution of suit: 12.08.2004
In O.S.No.6047/2004
Nature of suit: Specific Performance
In O.S.No.2320/2000
Nature of suit: Ejectment
In O.S.No.6047/2004
4 O.S.2320/00 C/w O.S.6047/04
Date of commencement
of recording of evidence: 02.06.2004
in O.S.No.2320/2000
Date of commencement
of recording of evidence: 08.06.2011
in O.S.No.6047/2004
Date on which the judgment 01.10.2016
was pronounced:
Duration of the suit: year/s month/s day/s
in O.S.No.2320/2000
16 06 01
Duration of the suit: year/s month/s day/s
in O.S.No.6047/2004
12 01 19
* * * * *
JUDGMENT
The plaintiff has filed O.S.No.2320/2000 seeking for judgment and decree against the defendants directing them to execute the absolute registered sale deed in his favour in respect of the suit schedule property at his cost and expenses to meet stamp duty and registration and in the event the defendants fail to 5 O.S.2320/00 C/w O.S.6047/04 execute registered sale deed, he prays the court to execute registered sale deed in his favour.
2. The case of the plaintiff in O.S.No.2320/2000 is as under:
That the 2nd defendant is the owner of property bearing No.1, Gurikar Rama Naik lane, S.P. Road cross, Bengaluru - 560 002, measuring 1172 square feet. The said premises is provided with an entrance to the premises through a common passage measuring 6 feet width. It is further contended that the defendants entered into an agreement of lease with the plaintiff on 28/9/1993 in respect of the suit schedule premises. A lease deed came to be registered in the office of the Sub-Registrar, Gandhi Nagar, Bengaluru on 29/9/1993. It is further contended that under the lease deed dated 28/9/1993, the plaintiff paid to the 2nd defendant on behalf of himself and defendants No.1, 3 and 4 an amount of Rs.4,00,000/- as deposit by way of 11 cheques as shown in para No.3 of the 6 O.S.2320/00 C/w O.S.6047/04 plaint. It is further contended that the amount of Rs.4,00,000/- was deposited as security deposit for lease of the schedule premises by the plaintiff. The amount of Rs.4,00,000/- has been acknowledged by the defendants. The deposit receipt acknowledging payment and receipt has been executed. It is further contended that the amount of Rs.4,00,000/- is not paid as an advance and it is only paid as security deposit refundable at the time of delivery of vacant possession by the plaintiff, as for adjustment in the event of sale of defendants.
3. It is further contended that on the date of entering into an agreement of lease by the defendants in favour of plaintiff, there existed only a ground floor and 1st floor. 2nd floor and 3rd floors were not constructed. The defendants entered into an agreement of lease earlier to the defendants undertaking construction of 2nd and 3rd floor with Susheela Devi on 1/4/1994 agreeing to deliver 7 O.S.2320/00 C/w O.S.6047/04 possession of the premises after completing the construction of the building to Susheela Devi. It is further contended that the defendants have committed breach of lease agreement and have failed to refund the amount of Rs.2,00,000/- paid by Susheela Devi in respect of security deposit as agreed by them.
4. It is further contended that the defendants offered to sell to the plaintiff the ground floor of the suit schedule property for a valuable sale consideration of Rs.8,00,000/- (Rupees Eight Lakhs only). The defendants informed the plaintiff that they are prepared to execute the registered sale deed in favour of the plaintiff and called upon the plaintiff to pay an amount of Rs.4,00,000/- in addition to the amount of Rs.4,00,000/- already available with them and paid by the plaintiff as security deposit. The total sale consideration amount agreed is Rs.8,00,000/- for executing the registered sale deed in respect of the schedule premises.
8 O.S.2320/00 C/w O.S.6047/04
5. The plaintiff who is in possession and is carrying on business in the premises agreed to pay balance sale consideration of Rs.4,00,000/- in addition to an amount of Rs.4,00,000/- which is already available with the defendants as security deposit paid to them by way of cheques drawn on Times Bank, M.G.Road, Bengaluru. The details of the cheques are given in para No.7 of the plaint. It is further contended that the amount of Rs.4,00,000/- as stated in para No.7 of the plaint have been encashed by the defendants and have acknowledged the receipt of the amount. The defendants have also agreed to execute absolute registered sale deed in favour of the plaintiff within one year from the date of encashment of the cheques. The defendants stated that they require two years time to execute the registered sale deed. The terms of the agreement have been reduced to writing in favour of plaintiff by 2nd defendant for and on behalf of the defendant No.1, 3 and 4. It is further contended 9 O.S.2320/00 C/w O.S.6047/04 that the 2nd defendant is the owner of the property and the defendant No.1, 3 and 4 have been impleaded in the suit as defendants along with 2nd defendant for the reason that the 2nd defendant being the owner of the property. He has been received advance sale consideration amount and is also exclusively receiving cheques which are stated in para No.7 of the plaint and also affixed signature for and on behalf of defendant No.1, 3 and 4.
6. It is further contended that the defendants represented that since the plaintiff is already in possession of the suit schedule premises and that they having agreed to execute registered sale deed, the plaintiff was allowed to continue in possession in part performance of agreement of sale. The defendants informed the plaintiff that the plaintiff shall not pay rents taking into consideration for execution of absolute registered sale deed is paid. What is required to be performed by the defendants is registration of 10 O.S.2320/00 C/w O.S.6047/04 sale deed which they promised to do after the construction of the 1st and 2nd floors in terms of the agreement. It is further contended that taking into consideration the amount of Rs.8,00,000/- have been paid by the plaintiff, likewise another amount of Rs.2,00,000/- have been paid by Susheela Devi for getting possession of 2nd and 3rd floor after construction is completed, the defendant went on dodging on one or the other pretext and they neither honoured the terms and conditions under the rental agreement executed in favour of Susheela Devi neither did they come forward to complete the sale transaction in favour of the plaintiff. It is further contended that the defendant also did not receive the rents from the plaintiff on the ground that sale transaction has been entered into and it was agreed by the defendants that the plaintiff shall not pay rents till the registered sale deed is executed. The receipts given are also produced to establish that defendants have agreed and accepted 11 O.S.2320/00 C/w O.S.6047/04 to execute registered sale deed in favour of the plaintiff.
7. It is further contended that the plaintiff was and is always ready and willing to perform his part of contract. The plaintiff has kept ready the amount required for meeting stamp duty and registration and other incidental expenses, to be incurred by him for execution of registered sale deed and complete sale transaction and that there was no impediment whatsoever to get the registered sale deed executed in favour of the plaintiff. The plaintiff has been calling upon the defendants to complete the sale transaction. The defendants have failed to honour their commitments in execution of the registered sale deed in terms of the agreement of sale. It is further contended that the plaintiff left with no other alternative than to issue legal notice on 19/7/1999 calling upon the defendants to honour their commitments to execute an absolute registered sale 12 O.S.2320/00 C/w O.S.6047/04 deed and convey right, title and interest in favour of the plaintiff and complete the execution of sale deed in terms what has been agreed by them. It is further contended that an amount of Rs.8,00,000/- is already paid to the defendants. He further stated that an amount of Rs.4,00,000/- is paid on 28/9/1993 which amount is paid as earnest money deposit and is available with them and an additional amount of Rs.4,00,000/- has been paid through 8 cheques which has been acknowledged by the defendants. The plaintiff need not pay any additional amount and the entire sale consideration amount has been paid in order to get a registered sale deed. The plaintiff has only to pay stamp duty, registration charges and other incidental charges for the purpose of registration and execution of sale deed, which the plaintiff is always ready and willing, etc. On these grounds and among other grounds he has come up with the present suit and accordingly prays for to decree the suit.
13 O.S.2320/00 C/w O.S.6047/04
8. In response to the suit summons sent by this court, the defendant No.1 to 4 appeared before the court through their counsels. The records shows that in this case, defendant No.1 has not filed written statement. The defendant No.2 and 3 have filed their respective written statements.
9. The defendant No.2 in his written statement contended that the suit filed by the plaintiff is not maintainable either in law or on facts and the same is liable to dismissed in limine. It is further contended that the plaintiff has filed the present suit making false and baseless allegations against the defendants. It is further contended that the plaintiff has no where in the plaint mentioned about the date of alleged agreement. It is further contended that the 2nd defendant has not agreed to effect sale of the suit schedule property nor has he entered into any agreement of sale of the property in favour of the plaintiff either orally or in writing. It is further 14 O.S.2320/00 C/w O.S.6047/04 contended that the plaintiff has concocted and created document purporting to be an agreement of sale. The plaintiff has forged the signature of the 2nd defendant and has cooked up documents styling it to be the agreement of sale. The plaintiff has committed offence punishable under IPC. The signatures of this defendant are forged with the criminal intention of knocking of the property of the defendants.
10. The 8 cheques which are referred to in para 7 of the plaint have not been received by the defendants nor it has been encashed as alleged in the plaint. The plaintiff has deliberately not stated in the plaint as to the name of the person in whose favour the cheques have been drawn and whether it is an account payee cheque or a bearer cheque. It is further contended that the plaintiff is the tenant in respect of the suit schedule property under the registered sale deed dated 28/9/1993. In that connection, the plaintiff was required to deposit a sum of 15 O.S.2320/00 C/w O.S.6047/04 Rs.4,00,000/- as security deposit for the due performance of the terms of the lease dated 28/9/1993. The plaintiff had no funds available for depositing Rs.4,00,000/- and he effected payment of Rs.4,00,000/- in installments by means of 11 cheques drawn on State Bank of Sourashtra and the said cheques were account payee cheques. It is further contended that the plaintiff has not tendered nor given any other cheques other than the one referred to above. The plaintiff has also referred to these cheques in para 3 of the plaint. It is further contended that the plaintiff is a chronic defaulter in the matter of payment of rents and the rents are due from 1/3/1995 onwards and huge rents have accumulated and the defendants have duly determined the tenancy of the plaintiff and steps have been taken for eviction of the plaintiff from the suit schedule property.
11. It is further contended that the suit filed by the plaintiff based on a forged and concocted 16 O.S.2320/00 C/w O.S.6047/04 document, as such the same is to be dismissed. It is further contended that the cheques shown in para No.7 of the plaint are not account payee cheques. The plaintiff has played fraud on the bank and by drawing the cheques in the name of 2nd defendant appears that if the cheques are encashed by the 2nd defendant. It is further contended that the 2nd defendant has not encashed any of the cheques referred to in para 7 of the plaint. The so called payment by means of bearer cheques are also not recognized under the Income Tax Act and any payment exceeding Rs.10,000/- should have been made by means of an account payee cheque. The plaintiff has concocted and fabricated records and forged the signatures of defendant No.2. It is further contended that the 2nd defendant will be taking up proceedings against the plaintiff for his criminal acts. It is further contended that the plaintiff had no money for effecting payment of Rs.4,00,000/-. There is no agreement nor there is an obligation on the defendants to effect the sale of the suit schedule 17 O.S.2320/00 C/w O.S.6047/04 property, etc. On these grounds and among other grounds, he sought for the dismissal of the suit.
12. The defendant No.3 in his written statement by denying all the plaint averments contended that the suit filed by the plaintiff is not maintainable and the same is liable to be dismissed. It is further contended that the plaintiff took the schedule property on lease from the defendants under a registered lease deed dated 28/9/1993. The suit schedule property belong to the defendants. The plaintiff is a defaulter in the matter of payment of rents and the rents are due from 1/3/1995 onwards and the defendants have determined the tenancy of the plaintiffs and steps has been taken for his eviction from the suit schedule property.
13. It is further contended that the plaintiff has concocted and created document and on such document he filed false case on them. It is further 18 O.S.2320/00 C/w O.S.6047/04 contended that the sale agreement purports to be dated 8/6/1997 and the amount of Rs.4,00,000/- is alleged to have been made to the defendants during October and November 1996 is false. He further contended that the defendants have not received any payment as sale consideration nor they have agreed to execute the sale deed in favour of the plaintiff, etc. On these grounds and among other grounds, he sought for the dismissal of the plaint.
14. The case of the plaintiff in O.S.No.6047/2004 is as under:
That the defendant is plaintiff's tenant whose tenancy stands determined in regard to shop in the ground floor of property premises bearing No.1, Gurikar Rama Naik lane, SP road cross, Bengaluru -2.
It is further contended that the defendant took the suit schedule property on lease from the plaintiffs for commercial purpose under registered lease deed dated 28/9/1993. The defendant had agreed to pay monthly 19 O.S.2320/00 C/w O.S.6047/04 rent in respect of the suit schedule property as stated in para 2 of the plaint. It is further contended that the defendant is a chronic defaulter in the matter of payment of rents and the rents are due from 1/3/1995 and Rs.5,84,060/- has become due and payable by the defendants to the plaintiff calculated upto 30/9/2003.
The period of lease agreed under the lease deed dated 28/9/1993 expired on 30/9/2003.
15. The defendant's tenancy stands terminated by efflux of time. However the plaintiff got issued legal notice dated 13/9/2003 to the defendant by way of abundant caution duly determining the tenancy in regard to the suit schedule property. The defendant was called upon to effect payment of the entire arrears of rent and to quit and deliver back vacant possession of the suit schedule premises to the plaintiffs on 31/10/2003. The defendant has been duly served with the said notice. The defendant instead of vacating and delivering vacant possession of the suit schedule 20 O.S.2320/00 C/w O.S.6047/04 property by paying the arrears of rent, got sent reply through his advocate V.B.Shivakumar taking false and frivolous contention. The tenancy of the defendant in regard to the suit schedule property has been determined on the expiry of 31/10/2003. The defendant has not vacated the suit schedule property and he has been in wrongful use and occupation of the schedule property from 1/11/2003. The defendant has paid a sum of Rs.4,00,000/- towards security deposit at the time of inception of tenancy. After deducting this amount in the arrears of rent became due by the defendants, a sum of Rs.1,84,060/- is payable by the defendant to the plaintiffs as arrears of rent. The plaintiffs have therefore filed the present suit for recovery of arrears of rent amounting to Rs.1,84,060/- calculated upto 30/9/2003 and for ejectment of the defendant from the suit schedule property.
21 O.S.2320/00 C/w O.S.6047/04
16. It is further contended that the defendant is a person whose tenancy in regard to the plaint schedule premises stands determined. The defendant who was bound to vacate the plaint schedule property on the expiry of 31/10/2003 has been in wrongful use and occupation of the plaint schedule property. The defendant is liable to pay damages for wrongful use and occupation, etc. On these grounds and among other grounds he prays for to decree the suit.
17. In pursuance of the suit summons sent by this court, the defendant appeared before the court through his counsel and filed his detailed written statement by denying all the plaint averments.
18. The defendant in his written statement contended that at the outset the suit of plaintiff is liable to be dismissed as not maintainable. It is further contended that the property mentioned in the schedule to the plaint by the plaintiffs is not properly 22 O.S.2320/00 C/w O.S.6047/04 described. It is further contended that there does not exist any jural relationship of landlord and tenant interse between the plaintiffs and the defendant. The jural relationship ceases to exist after the plaintiffs agreed and accepted to execute and convey absolute registered sale deed in favour of the defendant and the plaintiffs having received the entire sale consideration amount, confirmed with this defendant, that this defendant is the owner in possession of the property, by exercising right of absolute ownership and he is the owner in possession, deemed to be the owner in possession of the property, for the reason that the defendant has paid the entire consideration amount. It is further contended that for having paid the entire consideration amount, the defendant is awaiting getting absolute registered sale deed conveyed in his favour and in this regard, there is a categorical terms by the plaintiffs to execute registered sale deed and also confirming with the defendant that the defendant 23 O.S.2320/00 C/w O.S.6047/04 shall not pay rent and continue to be in possession of the property.
19. It is further contended that the time to execute absolute registered sale deed by the plaintiffs in favour of the defendants was pending. The defendant was always ready and willing to perform his part of contract. Having regard to the fact that he was always ready and willing to perform his part of the contract, plaintiffs committed breach, having committed breach in terms of the agreement by not executing absolute registered sale deed, permitted this defendant to continue in possession as absolute owner thereof.
20. It is further contended that the defendant was under compelling circumstances, filed a suit for specific performance of the terms of contract in O.S.No.2320/2000, which is pending on the file of City Civil Judge, Bengaluru city (CCH-8). There is an 24 O.S.2320/00 C/w O.S.6047/04 interim order subsisting, restraining the plaintiffs from interfering or dispossessing and / or alienating or encumbering in respect of the suit schedule property. It is further contended that the premises described in the schedule given to the plaint although not properly mentioned, the defendant became a tenant under a registered deed of lease dated 28/9/1993. The lease deed was executed by Ameenabi, Ansar, Syed Mohammed and Jameel. The lease deed was a registered deed and in terms of the said registered lease deed, the rent that was required to be paid in respect of the ground floor portion of the property, the rent for the period ending upto 30/9/1996 was fixed @ Rs.4,688/-; for the period ending upto 30/9/1999 @ Rs.5,390/-; for the period ending upto 30/9/2002 @ Rs.6,094/- and for the period ending upto 30/9/2003 @ Rs.6,797/-. Having regard to the fact that an advance amount of Rs.4,00,000/- was paid as on the date of execution of lease deed. The market value on the date of execution of lease deed was fixed at 25 O.S.2320/00 C/w O.S.6047/04 Rs.1,95,000/- despite the terms of contract was leased in respect of the property. The deposit amount of Rs.4,00,000/- which came to be acknowledged to be received by the plaintiffs under 11 different cheques.
21. The property was the ground floor and 1st floor. Having regard to the fact that it was ground and 1st floor portions of the property, the plaintiffs were left with no other alternative, than to offer construction of 2nd and 3rd floors. Taking into consideration, the construction of 2nd and 3rd floor portions of the property, they offered under the purported deed of lease, offering to execute lease deed in respect of 2nd and 3rd floors, which was not in existence and after obtaining such permission or permissions from the appropriate authority to construct the 2nd and 3rd floors, the said floors were although constructed by the plaintiffs, the plaintiffs did not induct the wife of the defendant, but let it out to the third parties. When proceedings were attempted to be initiated for having 26 O.S.2320/00 C/w O.S.6047/04 committed breach in terms of this agreement, the plaintiffs paid an amount of Rs.4,00,000/- by way of cheque, promising that the amount of Rs.2,00,000/- also carried interest, the cheque came to be bounced, plaintiffs deceived the wife of defendant in respect of the said amount.
22. It is further contended that the property was offered to be sold and in that regard, an advance amount of Rs.4,00,000/- was received. An agreement of sale also came to be executed by Ansar, who is arrayed as 2nd plaintiff before this court. The agreement of sale was executed on 8/6/1997. The defendant insisted as to why only the 2nd plaintiff is executing the agreement to sale and that the other parties, who have executed the lease deed are not made parties to the agreement to sell, it was brought to the notice of the defendant that the title deeds standing in the name of 2nd plaintiff and the 2nd plaintiff is the only exclusive owner and he alone is 27 O.S.2320/00 C/w O.S.6047/04 entitled to execute the registered sale deed and thereby the entire amount was acknowledged to be received by them in terms of the lease deed. It is further contended that having regard to the fact that a notice calling upon the performance of the terms of the agreement was issued and not complied, a defence that was put forth in the suit for specific performance was that of a denial, it was also in the form of a denial of not having received the consideration amount pertaining to the claim and mentioning of which is in the agreement to sell. The said fact was set forth by production of the extracts pertaining to the encashment made by the plaintiffs themselves. Therefore there is a concluded contract and that concluded contract for execution of registered sale deed is under enforcement in O.S.No. 2320/2000, thereby the present suit for the purpose of reliefs that are sought for by the plaintiffs is not maintainable and the suit is liable to be dismissed.
28 O.S.2320/00 C/w O.S.6047/04
23. It is further contended that the terms of the lease or a contract of lease has become redundant by virtue of an agreement to sell executed by the plaintiffs and the suit for specific performance of the terms of the contract to execute a registered sale deed by the plaintiffs in favour of the defendant is pending in O.S.No.2320/2000. The terms of the agreement also does not subsist neither the plaintiffs are entitled to claim any relief in respect of the terms under the agreement, for the reason that there does not exist any lease deed at all. The amount paid under the lease as advance or security deposit amount is now transferred as an advance sale consideration amount. Having regard to the fact that it is transferred as advance sale consideration amount and that there is a promise made under the agreement that the relationship of landlord and tenant seizes. Therefore the enforcement of the terms of contract, that too an agreement in terms of the lease does not subsist and that there is no agreement to lease at all. That apart, there is no 29 O.S.2320/00 C/w O.S.6047/04 relationship of landlord and tenant. Having regard to the fact that the terms of the lease seized by virtue of the agreement and that the lease has become redundant and the present suit filed by the plaintiff is not maintainable.
24. The plaintiffs are not entitled to claim possession of the suit schedule premises terms by terminating in the form of a tenancy, when tenancy does not subsist. The notice is bad in law. The provisions of chapter V of Transfer of Property Act is not applicable either for issuing a notice of termination, calling upon the defendant to vacate as a lessee and / or filing the present suit in the form in which it is filed ordering eviction in respect of the premises, claiming mesne profits, is not maintainable, etc. On these grounds and among other grounds he sought for the dismissal of the suit.
25. Heard the arguments.
30 O.S.2320/00 C/w O.S.6047/04
26. The learned counsel for the defendant in support of his arguments, has relied upon the following two decisions:
(1) AIR 2008 AP 180 (2) AIR 2006 AP 233
27. On the basis of the above rival pleadings of the parties in O.S.No.2320/2000, my learned predecessor-in-office has framed the following as many as 4 issues :
(1) Whether the plaintiff proves that the defendants have agreed to sell the suit schedule property for valuable consideration of Rs.8,00,000/- and received the full consideration amount ?
(2) Whether the plaintiff proves that he was always ready and willing to perform his part of the contract ?
31 O.S.2320/00 C/w O.S.6047/04 (3) Whether the plaintiff is entitled to the relief of specific performance of contract ?
(4) To what order or decree ?
28. On the basis of the above rival pleadings of the parties in O.S.No.6047/2004, my learned predecessor-in-office has framed the following as many as 8 issues :
(1) Whether there exists relationship of landlord and tenant between plaintiffs and defendant ?
(2) Whether there is legal and valid
termination of tenancy of
defendant of the suit schedule
premises ?
(3) Whether plaintiffs prove that
defendant is in arrears of rent of
Rs.1,84,060/-?
(4) Whether suit is not maintainable
as stated in para 8 and 10 of the
written statement ?
32 O.S.2320/00 C/w O.S.6047/04
(5) Whether the plaintiffs are entitled to recover possession of the suit schedule premises ?
(6) Whether plaintiffs are entitled for arrears of rent ?
(7) Whether plaintiffs are entitled for mesne profits ?
(8) What order or relief ?
29. The plaintiff in O.S.No.2320/2000 and defendant in O.S.No.6047/2004 in order to establish his case, he himself got examined as PW1 and got marked as many as 22 documents from Ex.P1 to Ex.P22 and closed his side evidence.
30. The defendants in O.S.No.2320/2000 and plaintiff in O.S.No.6047/2004 in order to establish their case, the general power of attorney holder of them is examined as DW1 and got marked as many as 11 documents from Ex.D1 to Ex.D11 and closed his side evidence.
33 O.S.2320/00 C/w O.S.6047/04
31. In this case, the Assistant Director of Forensic Laboratory was got examined as CW1.
32. My answer to the above said issues in O.S.No.2320/2000 are as under:
Issue No.1 : In the Affirmative
Issue No.2 : In the Affirmative
Issue No.3 : In the Affirmative
Issue No.4 : As per the final order
33. My answer to the above said issues in O.S.No.2320/2000 are as under:
Issue No.1 : In the Negative
Issue No.2 : In the Negative
Issue No.3 : In the Negative
Issue No.4 : In the Affirmative
Issue No.5 : In the Negative
Issue No.6 : In the Negative
Issue No.7 : In the Negative
Issue No.8 : As per the final order
for the following:
34 O.S.2320/00 C/w O.S.6047/04
REASONS
34. Issue No.1 & 2 in O.S.No.2320/2000 and Issue No.1 to 3 and Issue No.6 in O.S.No.6047: All these issues are interconnected, therefore they have been taken together for common consideration and discussion in order to avoid repetition of facts and also for the sake of convenience.
35. The plaintiff in O.S.No.2320/2000 and defendant in O.S.No.6047/2004 in order to establish his case, he himself got examined as PW1 and filed his detailed affidavit by way of examination-in-chief, wherein, he reiterated all the averments made in the plaint in O.S.No.2320/2000 and written statement in O.S.No.6047/2004. PW1 in his evidence has stated that he has filed the present suit seeking for specific performance of contract in respect of the suit schedule property. He further stated that he had entered into an agreement of lease with the defendant in respect of the suit schedule property on 28/9/1993 and the lease 35 O.S.2320/00 C/w O.S.6047/04 deed came to be registered in his favour on 29/9/1993. He further stated that under the lease deed dated 28/9/1993, he has paid the amount of Rs.4,00,000/- by way of 11 cheques as mentioned in paragraph 3 of the plaint. He further stated that all the 11 cheques that were received by the defendants have been acknowledged to be received by them. He further stated that the amount of Rs.4,00,000/- was given as security deposit for lease of the suit schedule property. The receipt for having received Rs.4,00,000/- is executed by the defendants. He further stated that the signature on the original lease deed executed by the defendants identified by him before the court. He further stated that the receipt is placed before the court showing receipt of Rs.4,00,000/- by way of 11 cheques. He further stated that the amount of Rs.4,00,000/- was not paid as advance, it was paid as security deposit refundable at the time of delivery of vacant possession of the 36 O.S.2320/00 C/w O.S.6047/04 premises and as adjustment in the event of the sale made by the defendants in his favour.
36. He further stated that the defendants entered into an agreement of sale in his favour and there existed only ground floor and 1st floor. He further stated that the 2nd and 3rd floors were not constructed. The defendants entered into an agreement of lease earlier to the defendants undertaking construction of the 2nd and 3rd floors with Susheela Devi on 1/4/1994. He further stated that defendants agreed to deliver possession of the premises after completing construction of the building to Susheela Devi. But the defendants committed breach of the lease agreement and have failed to refund Rs.2,00,000/- paid to Susheela Devi as security deposit for getting premises as agreed by them.
37. He further stated that the defendants agreed to sell the ground floor of the property for valuable 37 O.S.2320/00 C/w O.S.6047/04 consideration of Rs.8,00,000/- to him and they also informed him that they are prepared to execute a registered sale deed in his favour and called upon him to pay the amount of Rs.4,00,000/- in addition to the amount of Rs.4,00,000/- already paid by him and available with him as security deposit. He further stated that the total sale consideration agreed is Rs.8,00,000/- for executing the sale deed in respect of the suit schedule property.
38. He further stated that he is in possession of the suit schedule property and carrying on business in the premises and he agreed to pay balance consideration of Rs.4,00,000/- in addition to amount of Rs.4,00,000/- which is already available with the defendants as security deposit by way of cheques drawn on Times Bank, M.G.Road, Bengaluru. He further stated that the details of cheque which are 8 in number are given by him in paragraph 4 of the plaint. He further stated that in all he paid Rs.8,00,000/- to 38 O.S.2320/00 C/w O.S.6047/04 the defendants for executing and conveying registered sale deed in his favour. He further stated that the amount of Rs.4,00,000/- which is mentioned in paragraph 7 of the plaint have been encashed by the defendants and they have acknowledged the receipt of the amount.
39. He further stated that the defendants have also agreed to execute absolute registered sale deed within one year from the date of encashment of the cheques. He further stated that the defendants told him that they require two years time to execute the sale deed. The terms of the agreement have been reduced to writing in his favour. The 2nd defendant has signed the agreement, not only on his behalf, but also on behalf of defendant No.1, 3 and 4.
40. He further stated that the 2nd defendant is the owner of the suit schedule property. Defendant No.1, 3 and 4 have been impleaded in the suit as 39 O.S.2320/00 C/w O.S.6047/04 defendants along with the 2nd defendant, for the reason that the 2nd defendant being the owner of the property, he has received an advance sale consideration amount and is also exclusively receiving cheques which are detailed in paragraph 7 of the plaint from him and also affixed signature on behalf of defendants No.1, 3 and
4. He further stated that the defendants represented that since he is already in possession of the property and that for having agreed to execute a registered sale deed, he was allowed to continue to remain in possession in part performance of the agreement to sell. The defendants informed him that he shall not pay rents taking into consideration for execution of absolute registered sale deed, the amount that is paid under the agreement of sale. What is required to be performed by the defendants is registration of the sale deed which defendants promised to do after construction of the 2nd and 3rd floor in terms of the agreement. He further stated that taking into consideration the amount of Rs.8,00,000/- paid by 40 O.S.2320/00 C/w O.S.6047/04 him, likewise another amount of Rs.2,00,000/-have been paid by Susheela Devi for getting possession of 2nd and 3rd floors after construction is completed. The defendant went on dodging on the pretext or other neither did they honour the terms and conditions under the rental agreement executed in favour of Susheela Devi and they also did not come forward to complete the sale transaction in his favour.
41. He further stated that he is always ready and willing to perform his part of contract and he was ready to meet the stamp duty, registration charges and other incidental expenses that are required to be paid for getting execution of the sale deed in his favour. He further stated that when the defendants failed to perform their part of contract, he issued legal notice to them on 19/7/1999, calling upon them to honour their commitment, to execute absolute registered sale deed, conveying right, title and interest in his favour. He further stated that he has completed his part of 41 O.S.2320/00 C/w O.S.6047/04 contract and Rs.4,00,000/- has already been paid as security deposit and the remaining amount of Rs.4,00,000/- have been acknowledged to be received by the defendants as acknowledgment under the receipt executed by them which amount is paid by way of cheques drawn on Times Bank, M.G.Road, Bengaluru. The said cheques have been acknowledged to have been received by the defendants. He further stated that he is not required to pay any amount as sale consideration. The sale consideration agreed to be paid has been completely paid.
42. He further stated that the defendants have falsely contended that the documents relied upon by him are fabricated and concocted documents. He further stated that the amount of Rs.2,00,000/- that was required to be paid to Susheela Devi for non performance of the terms of the agreement in respect of the 2nd and 3rd floor premises, Susheela Devi was issued notice for dishonour of cheque and after 42 O.S.2320/00 C/w O.S.6047/04 dishonour of the cheques, she paid by way of cheques, an amount of Rs.4,00,000/- which is inclusive of interest. A criminal prosecution was initiated against the 2nd defendant along with other defendants and the matter is now pending in appeal.
43. He further stated that the suit filed by defendants in O.S.No.6047/2004 is not maintainable in view of the suit for specific performance filed by him in O.S.No.2320/2000. He further stated that the terms of the agreement of lease also does not subsist. He further stated that the plaintiffs in O.S.No.6047/2004 are not entitled to claim any relief in respect of the terms under the agreement of lease for the reason that there does not exist any lease deed at all. He further stated that the amount paid under the lease as advance or security deposit amount is now transferred as an advance sale consideration amount. So he contended that having regard to the fact that it is transferred as advance sale consideration amount 43 O.S.2320/00 C/w O.S.6047/04 and there is promise made by the defendant that the relationship of landlord and tenant seizes. Therefore enforcement of the terms of the contract, that too an agreement in terms of the lease does not subsist and there is no agreement to lease at all. He further stated that there is no relationship of landlord and tenant in between himself and the defendants, having regard to the fact that the terms of the lease seizes by virtue of the agreement and that the lease has become redundant. He further stated that the notice caused by the defendants, i.e., termination notice is bad in law when lease was not existed between himself and the defendants. In support of his case, he got marked as many as 22 documents from Ex.P1 to Ex.P22. So in view of his above oral and documentary evidence, he prays for the decree the suit in O.S.No.2320/2000 and to dismiss the suit in O.S.No.6047/2004.
44. The defendants in O.S.No.2320/2000 and plaintiffs in O.S.No.6047/2004 in order to establish 44 O.S.2320/00 C/w O.S.6047/04 their case, they got examined their general power of attorney holder as DW1. DW1 has filed his detailed affidavit by way of examination-in-chief, wherein he reiterated all the averments made in the written statement in O.S.No.2320/2000 and plaint in O.S.No.6047/2004.
45. DW1 further on oath stated before the court that the plaintiff in O.S.No.2320/2000 has filed the suit seeking specific performance of the agreement of sale dated 8/6/1997, alleged to have been entered into between him and his brother Ansar, the 2nd defendant. He further stated that the alleged agreement dated 8/6/1997 is a concocted and created by forging the signature of his brother Ansar. He further stated that his brother Ansar has not entered into any agreement of sale with plaintiff either on 8/6/1997 or on any other date. The document styled as agreement of sale dated 8/6/1997 is created and concocted by the plaintiff with ulterior designs of making an unjust gain 45 O.S.2320/00 C/w O.S.6047/04 for himself. He further stated that the allegations and contentions of the plaintiff that his brother Ansar is the obsolute owner of the property No.1, Gurikar Rama Naik lane, S.P. road cross, Bengaluru, and his brother Ansar agreed to sell the shop premises measuring 1172 sq.ft. to the plaintiff for Rs.8,00,000/- and the plaintiff paid the said amount by different cheques and his brother has encashed the said cheques are all false. He further stated that they never agreed to sell the suit property to the plaintiff and informed him that they are prepared to execute the registered sale deed in his favour for consideration of Rs.8,00,000/- and they never agreed to adjust Rs.4,00,000/- received by them as security deposit in connection with the lease of the property towards the sale transaction and called upon the plaintiff to pay Rs.4,00,000/- only as balance. He further stated that his brother Ansar has not agreed to effect sale of the suit property nor has he entered into any agreement of sale of the suit schedule property in favour of the plaintiff either orally or in writing.
46 O.S.2320/00 C/w O.S.6047/04
46. He further stated that the plaintiff contended that 8 cheques of Rs.50,000/- each drawn on Times Bank, M.G.Road, Bengaluru, as shown in para 7 of the plaint was encashed by them and they have agreed to execute absolute registered sale deed in his favour within one year from the date of encashment of the cheques and also falsely contended that he was allowed to continue in possession of the suit schedule property without paying rent and they are liable to perform their part of the obligation after construction of the 2nd and 3rd floor. He further stated that the plaintiff has concocted and created document purporting to be an agreement of sale. The plaintiff has forged the signature of his brother Ansar and has cooked up the document styling as agreement of sale. He further stated that the signature of his brother Ansar are forged with the criminal intention of knocking of the property of the defendants. He further stated that the cheques which are referred to in para 7 47 O.S.2320/00 C/w O.S.6047/04 of the plaint have not been received either by his brother Ansar or by the other defendants nor it has been encashed as alleged in the plaint. He further stated that the plaintiff has deliberately not stated in the plaint as to the name of the person in whose favour the cheques have been drawn and whether it is an account payee cheque or a bearer cheque. He further stated that the plaintiff has also concocted document purporting to be receipts on which also he has forged signature of his brother Ansar. He further stated that the 2nd defendant has not acknowledged receipts as per Ex.P2 to Ex.P7. The plaintiff has created these records to support his false case that his brother Ansar has entered into an agreement of sale with him. The 2nd defendant, his brother has not received rents by cheques as mentioned in Ex.P4 and Ex.P5.
47. He further stated that the plaintiff is a tenant in respect of the suit schedule property under a registered lease deed dated 28/9/1993 entered into 48 O.S.2320/00 C/w O.S.6047/04 between him and the defendant No.1 to 3 and himself. In that connection, the plaintiff was required to deposit a sum of Rs.4,00,000/- as security deposit for the due performance of the terms of the lease dated 28/9/1993. The plaintiff had no funds available for depositing Rs.4,00,000/- and he effected the payment of Rs.4,00,000/- in installments by means of 11 cheques drawn on State Bank of Sourashtra towards security deposit in connection with the lease of the suit schedule property. He further stated that the said cheques are account payee cheques and the plaintiff has not tendered nor given any of the cheques other than the one referred above. He further stated that the plaintiff is a chronic defaulter in the matter of payments of rents and the rents are due from 1/3/1995 onwards and huge rents have accumulated and they have duly terminated the tenancy of the plaintiffs.
49 O.S.2320/00 C/w O.S.6047/04
48. He further stated that the suit filed by the plaintiff is based on a forged and concocted document, as such, the same is liable to be dismissed. He further stated that the cheques shown in para 7 of the plaint are not account payee cheques and the 2nd defendant has not received 8 cheques as mentioned in para 7 of the plaint. The plaintiff by playing fraud had drawn the amount under the cheques in the name of the defendants making it appear as if the cheques are encashed by his brother Ansar. He further stated that the 2nd defendant, his brother Ansar has not encashed any of the cheques referred to in para 7 of the plaint. He further stated that the plaintiff has concocted and fabricated records and forged signatures of his brother, 2nd defendant.
49. He further stated that the plaintiff falsely contended that he was always ready and willing to perform his part of the obligation and he kept ready the required amount for completing the sale 50 O.S.2320/00 C/w O.S.6047/04 transaction. He further stated that there is no agreement nor there is no obligation on the defendants to effect sale of the suit schedule property.
50. He further stated that they have filed suit against the plaintiff in O.S.No.6047/2004 for ejectment and for arrears of rent of Rs.1,84,060/- in respect of the suit schedule property. He further stated that the monthly tenancy of the plaintiff was duly terminated by means of notice dated 13/9/2003. The said notice was duly served on the plaintiff and he has sent evasive reply to the said notice dated 28/9/2003, through his advocate. He further stated that he has produced medical certificate relating to disability of his elder brother Ansar. In support of his case, he got marked as many as 11 documents from Ex.D1 to Ex.D11. So in view of his above oral and documentary evidence, he prays for to dismiss the suit in O.S.No.2320/2000 and decree the suit in O.S.No.6047/2004.
51 O.S.2320/00 C/w O.S.6047/04
51. In this case, since the defendants in O.S.No.2320/2000 and plaintiffs in O.S.No.6047/2004 contended that the plaintiff has forged the signature of defendant No.2 Ansar, so the admitted and disputed signatures were referred to the Handwriting Expert. Subsequently the concerned forensic laboratory authority after examining the admitted and disputed signature relating to defendant No.2 submitted his report. The said person, i.e., the Assistant Director of forensic lab examined before the court as CW1. Upon perusal of his evidence, it shows that, he has stated before the court that the admitted signature and disputed signature are belongs to the same person, i.e., to say, the 2nd defendant Ansar.
52. The learned counsel for the plaintiff, during the course of his arguments, contended that the plaintiff in O.S.No.2320/2000 seeking the relief of specific performance of contract and for such other 52 O.S.2320/00 C/w O.S.6047/04 reliefs and the plaintiff in O.S.No.6047/2004 seeking for ejectment and for such other reliefs. He further contended that since the subject matter involved in both the suits is one and the same, so both the suits are clubbed to dispose off by common judgment.
53. He further contended that earlier the plaintiff was tenant under the defendants in suit property as per registered agreement of lease dated 28/9/1993 as per Ex.P22 and the lease agreement was for a period of 10 years. He further contended that as per the said lease deed, he paid an amount of Rs.4,00,000/-, by way of 11 cheques, as stated in paragraph No.3 of the plaint and the defendants have acknowledged for having received the said amount. He further contended that the said amount of Rs.4,00,000/- was given as security deposit for the lease of the suit schedule property.
53 O.S.2320/00 C/w O.S.6047/04
54. He further contended that defendants entered into an agreement of sale with the plaintiff with an intention to sell the suit schedule property and at that time, there existed only ground floor and 1st floor, and 2nd & 3rd floors were not constructed. He further contended that the defendants entered into an agreement of lease as per Ex.P22 earlier to undertaking construction of the 2nd and 3rd floors with Susheela Devi on 1/4/1994, who is none other than the wife of plaintiff. He further contended that though the defendants have received Rs.2,00,000/- from Susheela Devi and agreed to deliver 2nd and 3rd floor after completion of construction, but they have committed breach of lease agreement and even failed to refund Rs.2,00,000/- to her.
55. He further contended that defendants agreed to sell the suit schedule property for a valuable consideration of Rs.8,00,000/- and informed the plaintiff that they are prepared to execute a registered 54 O.S.2320/00 C/w O.S.6047/04 sale deed in his favour and called upon him to pay an amount of Rs.4,00,000/-, in addition to the amount of Rs.4,00,000/- already paid by the plaintiff, which is available with the defendants as security deposit. He further contended that the plaintiff is in possession and enjoyment of the suit schedule property and wherein he is carrying on the business and agreed to pay the balance sale consideration of Rs.4,00,000/-, in addition to the amount of Rs.4,00,000/-, which is already available with the defendants as security deposit. He paid to them balance of Rs.4,00,000/- by way of cheques drawn on Times Bank, M.G.Road, Bengaluru, as detailed in para No.4 of the plaint. So what he contended that the plaintiff in all paid Rs.8,00,000/- to the defendants for executing and conveying registered sale deed in his favour. He further contended that the amount of Rs.4,00,000/- as stated in para No.7 of the plaint have been encashed by the defendants and they have acknowledged the receipt of the amount.
55 O.S.2320/00 C/w O.S.6047/04
56. He further contended that the defendants also agreed to execute registered sale deed within a year from the date of encashment of cheque, but they said that they require two years time to execute sale deed. He further contended that the terms of agreement has been reduced in writing and by accepting sale consideration amount, the defendants have executed agreement to sell in favour of the plaintiff as per Ex.P1. He further contended that the 2nd defendant has executed Ex.P1 agreement to sell and also on behalf of defendant No.1, 3 and 4. He further contended that the defendant No.2 is the owner of the suit schedule property, but defendant No.1, 3 and 4 have been impleaded in the suits as defendants along with 2nd defendant for the reason that the 2nd defendant being the owner of the property, he has received the advance sale consideration amount and is also exclusively receiving the cheques which are detailed in para No.7 of the plaint from the plaintiff 56 O.S.2320/00 C/w O.S.6047/04 and also he affixed signature on behalf of defendant No.1, 3 and 4.
57. He further contended that the very document produced by the plaintiff at Ex.P2 to Ex.P7 shows the total amount of Rs.8,00,000/- received by the defendants. He further contended that since the plaintiff is already in possession of the property and the defendants agreed to execute the registered sale deed, so he was allowed to continue in possession of the suit property in part performance of the agreement to sell as per Ex.P1. He further contended that in pursuance of the execution of Ex.P1 agreement to sell by the defendants, the plaintiff was told by them that he need not pay rents. So what he contended that what the defendant is required to be done is that, they have to come and execute the registered sale deed to the plaintiff in respect of the suit schedule property, which the defendant promised to do after construction of the 2nd and 3rd floors in terms of the agreement.
57 O.S.2320/00 C/w O.S.6047/04
58. He further contended that the plaintiff was / is always ready and willing to perform his part of the contract and he was ready to meet the stamp duty, registration charges and other incidental expenses that are required to be paid for getting execution of the sale deed in his favour. He further contended that though he requested the defendants, but they failed to execute the registered sale deed. So left with no alternative, plaintiff caused legal notice to the defendants as per Ex.P8, on 19/7/1999, calling upon them to honour their commitments to execute absolute registered sale deed in respect of the suit schedule property. He further contended that the entire sale consideration amount has been already paid by the plaintiff and nothing remains to be paid by the plaintiffs to the defendants except the stamp duty and registration charges and other incidental expenses to get execute the registered sale deeds. He further contended that even though the 2nd defendant executed Ex.P1 58 O.S.2320/00 C/w O.S.6047/04 agreement to sell on behalf of himself and also on behalf of defendant No.1, 3, and 4, but for the best reasons known to them, they failed to perform their part of obligation.
59. He further contended that the defendants instead of performing their part of obligation, falsely contended that the plaintiff has got created Ex.P1 agreement to sell and at any point of time, they have not at all entered into any kind of agreement and the signature forthcoming in the agreement to sell, i.e., Ex.P1 and the receipts at Ex.P2 to Ex.P7 are not the signatures of defendant No.2 and they are forged by the plaintiff in order to knock off the valuable property.
60. He further contended that though the defendants contended that Ex.P1 is a forged and concocted document and the signatures forthcoming in the said document and in Ex.P2 and Ex.P7 are not the signatures of defendant No.2 Ansar, but they failed to 59 O.S.2320/00 C/w O.S.6047/04 produce acceptable evidence before the court. He further contended that the plaintiff in order to disprove the above contention of the defendants filed application before the court to refer the admitted signature and disputed signature of defendant No.2, Ansar, to the Handwriting Expert and he has submitted his report and also the Assistant Director of Forensic Lab examined before the court as CW1.
61. He further contended that the very report and the evidence given by CW1, clearly shows that the admitted signature and disputed signature are belongs to the one and the same person, i.e., to say, defendant No.2 Ansar. So what he contended that though the defendants are very well aware that the signature forthcoming in Ex.P1, agreement to sell, and Ex.P2 to Ex.P7 receipts, is that of defendant No.2, Ansar, deliberately, they contended that they are forged signatures, but the same has been disproved by the plaintiff through CW1. So he contended that the very 60 O.S.2320/00 C/w O.S.6047/04 oral and documentary evidence placed before the court by the plaintiff clearly shows that the defendants have agreed to sell the suit schedule property for a total sale consideration of Rs.8,00,000/- and they have received the entire sale consideration of Rs.8,00,000/- from the plaintiff. He further contended that the evidence on record also clearly shows that the plaintiff was / is always ready and willing to perform his part of contract and he has also called upon the defendants by causing legal notice as per Ex.P8 to come and perform their part of obligation, i.e., to execute a registered sale deed.
62. He further contended that the very Ex.P1, agreement to sell, clearly shows that, time was not the essence of contract. So also PW1 in his evidence has stated that the defendants after encashing the cheque amount, said that, within one year, they are going to execute registered sale deed, but subsequently, they said that they require two years time to execute the 61 O.S.2320/00 C/w O.S.6047/04 sale deed. So the plaintiff, believing their words, waited for the time as sought by the defendants, but inspite of that, after lapse of time as sought by the defendants, they did not come forward to perform their part of obligation.
63. He further contended that, in fact, in O.S.No.2320/2000, DW1 who is the general power of attorney of the defendants is not a party, but he is a party in O.S.No.6047/2004. He further contended that DW1 in his evidence contended that defendant No.2, Ansar, has no absolute right to execute alleged agreement to sale and in fact, he has not executed the alleged agreement of sale and even he has not executed the same on behalf of the other defendants. So also he stated that the defendant No.2 is not in a position to give evidence because of stammering problem, so, by obtaining general power of attorney from the defendants, he has given evidence before the court. So far as the said contention of DW1, what he contended 62 O.S.2320/00 C/w O.S.6047/04 that, when the contention of the defendant has been disproved by the plaintiff by examining the Handwriting Expert, atleast they could have established the factum of non-execution of Ex.P1 agreement of sale by defendant No.2 on behalf of himself and also on behalf of other defendants by examining him before the court. What he contended that the very medical certificate produced by the defendants at Ex.D4 clearly shows that wherein the doctor says that defendant No.2 Ansar can speak with difficulty. So what he contended that absolutely there is no such serious problem for him, that is to say, he is not a speechless person.
64. He further contended that even DW1 also while giving evidence stammered before the court and even that fact has been admitted by himself during the course of his cross examination. So what he contended that the defendants have deliberately avoided Ansar to come and give evidence before the 63 O.S.2320/00 C/w O.S.6047/04 court for the best reasons known to them and also to suppress the truth of the matter. So he contended that the defendants deliberately have taken false contention that the plaintiff got created Ex.P1 to Ex.P7. The learned counsel contended that after execution of Ex.P1, agreement to sell by the defendants, he is no more a tenant under the defendants.
65. The learned counsel for the plaintiff, further during the course of his arguments, contended that earlier the plaintiff was the tenant under the defendants as per Ex.P22, but subsequently in pursuance of the execution of Ex.P1, agreement to sell, he is no more a tenant under the defendant. He further contended that infact PW1 in his evidence has stated before the court in pursuance of the entire sale consideration amount of Rs.8,00,000/- paid by him to the defendants, they themselves told him that there is no need for him to pay the rent in respect of the suit schedule property. So also he contended that by virtue 64 O.S.2320/00 C/w O.S.6047/04 of the execution of Ex.P1, agreement to sell, the plaintiff is no more a tenant under the defendants. So what he contended that when that would be the case, the contention of the defendants in other suits that till this date there exists jural relationship of landlord and tenant in between the plaintiff and defendants does not arise at all. So also he contended that when the plaintiff has purchased the suit schedule property under Ex.P1, agreement to sell, the question of termination of his tenancy does not arise and the question of plaintiff is in arrears of rent cannot be accepted. He further contended that in fact for the alleged termination notice by the defendant as per Ex.D5, the plaintiff has given suitable reply to the said notice as per Ex.D6, denying the factum of he is no more a tenant under them by virtue of execution of Ex.P1, agreement to sell. So in view of his above arguments, he urged to answer issue No.1 and 2 in O.S.No.2320/2000 in the Affirmative and issue No.1 to 3 and 6 in O.S.No.6047/2004 in the Negative. 65 O.S.2320/00 C/w O.S.6047/04
66. On the contrary, the learned counsel for the defendant, during the course of his arguments, contended that admittedly the plaintiff was the tenant under the defendants in respect of the suit schedule property, on monthly rent as stated in Ex.P22, lease deed. What he contended that so far as the execution of Ex.P22, registered lease deed by the defendants in favour of the plaintiff in respect of the suit schedule property is concerned, is not at all disputed by the defendants. He further contended that the suit schedule property was given on lease basis for a period of 10 years.
67. He further contended that the plaintiff in O.S.No.2320/2000 seeking the relief of specific performance of contract on the basis of the concocted and created Ex.P1, agreement to sell, by forging the signature of defendant No.2 Ansar. He further contended that when the defendants have executed 66 O.S.2320/00 C/w O.S.6047/04 registered lease deed in favour of the plaintiff for a period of 10 years, there is no need for them to execute the alleged agreement to sell as claimed by the plaintiff. What he contended that the 2nd defendant has not at all entered agreement of sale with the plaintiff either on 8/6/1997 or any other date.
68. He further contended that the alleged document styled as agreement of sale dated 8/6/1997 is created and concocted by the plaintiff with an ulterior motive to knock off the suit schedule property. He further contended that the plaintiff falsely contended in the plaint and in his evidence without knowing the factual position that Ansar is the absolute owner of the suit schedule property and he has executed alleged Ex.P1, agreement to sell, for a total sale consideration of Rs.8,00,000/- and he has paid the said amount through cheques and defendant No.2 Ansar has encashed the said cheques. He further contended that the defendants have not at all offered 67 O.S.2320/00 C/w O.S.6047/04 and agreed to sell the suit schedule property to the plaintiff as claimed by him. So also he contended that the plaintiff has falsely contended that whatever the amount of Rs.4,00,000/-, paid by him at the time of Ex.P22, lease agreement, as a security deposit, the defendants have agreed to adjust the said amount towards the sale transaction and called upon him to pay the balance amount of Rs.4,00,000/-.
69. He further contended that the defendant No.2 has not at all encashed Rs.4,00,000/- drawn on Times Bank, M.G.road, Bengaluru, as contended by the plaintiff in para 7 of the plaint. He further contended that neither the 2nd defendant nor the other defendants have not at all said that they are going to execute registered sale deed in respect of the suit schedule property within one year after encashment of the cheque amount. So also he contended that when the defendants have not at all encashed any amount, muchless the amount as claimed by the plaintiff, the 68 O.S.2320/00 C/w O.S.6047/04 question of defendants telling to the plaintiff to continue in possession of the suit schedule property without paying rent does not arise at all. He further contended that when the defendants have not at all executed Ex.P1, agreement to sell, the question of performing the obligation on the part of the defendants as claimed by the plaintiff does not arise at all.
70. He further contended that the plaintiff in order to knock off the suit schedule property got created Ex.P1, agreement to sell, by forging the signature of defendant No.2. He further contended that the cheques which are referred by the plaintiff in para 7 of the plaint, have not been received either by Ansar or by the other defendants nor it has been encashed as alleged by the plaintiff. He further contended that the plaintiff no where in his plaint stated in whose name he has issued the alleged cheques and also he has not stated whether those cheques are account payee cheques or the bearer 69 O.S.2320/00 C/w O.S.6047/04 cheques. He further contended that the plaintiff in order to knock off the suit schedule property, he has forged the signature of defendant No.2 on Ex.P2 to Ex.P7. What he contended that the 2nd defendant has not acknowledged receipts as per Ex.P2 to Ex.P7. He further contended that the plaintiff has falsely contended that defendant No.2 executed alleged Ex.P1, agreement to sell, on his behalf and also on behalf of the other defendants. What he contended that first of all, the defendant No.2, Ansar, has not at all executed alleged Ex.P1, sale deed, and second thing is that defendant No.2, Ansar, has no authority to execute Ex.P1, alleged agreement of sale, on behalf of the other defendants, as because it is not the absolute property of defendant No.2 Ansar.
71. He further contended that the plaintiff in view of the denial of signatures of defendant No.2 in the alleged Ex.P1 to Ex.P7 document filed application to refer the admitted signature and disputed signature 70 O.S.2320/00 C/w O.S.6047/04 to the Handwriting Expert and the said application was came to be allowed. He further contended that the Handwriting Expert submitted his report and also the Assistant Director of Forensic Lab has been examined before the court as CW1. He further contended that though CW1 in his evidence stated that the admitted and disputed signature are belongs to one and the same person, but the very evidence given by him, during the course of his cross examination, wherein he has admitted that in Ex.Q1 to Ex.Q10 in between letters 'A' and 'S' there would come one stroke. So what he contended that the said evidence given by CW1 clearly shows that though he is very well aware that the admitted and disputed signature are not belongs to one and the same person, he has given false report by stating that both signatures belongs to one and the same person at the instance of the plaintiff.
72. The learned counsel for the defendants, further during the course of his arguments, contended 71 O.S.2320/00 C/w O.S.6047/04 that the suit schedule property was given on lease to plaintiff as per Ex.P22 on 28/9/1993 for a period of 10 years. He further contended that at that time, it was agreed to pay the rents from time to time as stated in para No.3 of Ex.P22. He further contended that it was also agreed to pay Rs.4,00,000/- as security deposit amount. He further contended that since the plaintiff was not in a position to pay security deposit amount of Rs.4,00,000/- at a time, so the defendants have agreed to receive the security deposit amount of Rs.4,00,000/- in installment basis as stated by the plaintiff in para 3 of his plaint. So he contended that when the plaintiff was not in a position to pay the security amount of Rs.4,00,000/- at a time, the question of the defendants agreeing to sell the suit schedule property for a total sale consideration of Rs.8,00,000/- and the plaintiff in addition to the security deposit amount of Rs.4,00,000/- has paid another Rs.4,00,000/- as contended by the plaintiff cannot be accepted. What he contended that the defendants at any point of time 72 O.S.2320/00 C/w O.S.6047/04 never intended to sell the suit property and have not at all executed Ex.P1 sale deed. The plaintiff in order to knock off the suit schedule property got created Ex.P1, agreement to sell, by forging the signature of Ansar, who is none other than the 2nd defendant in the present case.
73. He further contended that admittedly Ex.P22 was executed by all the defendants in favour of the plaintiff and even the said fact has been admitted by PW1 in his cross-examination whereas Ex.P1 alleged agreement to sell shows that it was executed by 2nd defendant, Ansar. The plaintiff contended that the defendant No.2, Ansar has executed agreement to sell on behalf of himself and on behalf of the other defendants. What he contended that, first of all, the 2nd defendant has not at all executed Ex.P1 agreement to sell. When that would be the case, the question of he executing the said document on behalf of the other defendants does not arise at all.
73 O.S.2320/00 C/w O.S.6047/04
74. He further contended that the suit schedule property is not the exclusive property of defendant No.2, Ansar. When that would be the case, the question of alleged execution of Ex.P1, agreement to sell, by the 2nd defendant in favour of the plaintiff does not arise at all. What he contended that the suit schedule property belongs to the father of defendant No.2 and after his demise all the defendants have got right in the suit schedule property. When that would be the case and when Ex.P1 does not disclose the signature of other defendants, except the forged signature of defendant No.2, Ansar, the contention of the plaintiff cannot be accepted that Ex.P1 agreement to sell was executed by defendant No.2 on behalf of himself and other defendants.
75. He further contended that the very evidence given by PW1, during the course of his cross examination, it shows that he has admitted the factum 74 O.S.2320/00 C/w O.S.6047/04 of all the defendants have got right over the suit schedule property. When that would be the case, it can be said that Ex.P1 is a concocted and created document by the plaintiff by forging the signature of defendant No.2, Ansar, in order to knock off the valuable suit schedule property. He further contended that the plaintiff claims that the defendants adjusted security deposit amount of Rs.4,00,000/- towards sale consideration amount and subsequently he has paid another Rs.4,00,000/- to Ansar as stated by him in para 7 of the plaint. He further contended that the averments made in the plaint and the evidence on record does not disclose whether the cheque paid by the plaintiff is account payee cheque or in whose name, he has given the said cheques. What he contended that when the plaintiff at the time of obtaining the suit schedule property on lease basis was not in a position to pay Rs.4,00,000/- security deposit amount at a time, the say of the plaintiff that in addition to security deposit amount already paid, 75 O.S.2320/00 C/w O.S.6047/04 another Rs.4,00,000/- was paid, and in all he has paid Rs.8,00,000/- to the defendants, as they have agreed to sell the suit schedule property for a total sale consideration of Rs.8,00,000/- cannot be accepted.
76. He further contended that the very document produced by the plaintiff at Ex.P22, i.e., agreement to sale dated 28/9/1993, clearly shows that the lease deed was executed in favour of the plaintiff for a period of 10 years on a monthly rent from time to time as stated in para 3 of the plaint and also the plaintiff has paid security deposit of Rs.4,00,000/-. He further contended that lease deed executed by the defendants is a registered document. He further contended that the plaintiff till this date is residing in the suit property as a tenant. He further contended that the plaintiff had no funds for depositing Rs.4,00,000/- as security and he made payment of Rs.4,00,000/- in installments by means of 11 cheques drawn on Bank of Sourashtra towards security deposit 76 O.S.2320/00 C/w O.S.6047/04 in connection with the suit schedule property. He further contended that the said cheques issued by the plaintiff are account payee cheques.
77. He further contended that except the said cheques, the plaintiff has not tendered or given any of the cheques other than the one referred in para 3 of the plaint. He further contended that the plaintiff is a chronic defaulter in the matter of payment of rents and the rents are due from 1/3/1995 onwards and huge rents have accumulated and the defendants have duly terminated the tenancy of the plaintiff by causing legal notice as per Ex.D5. He further contended that the plaintiff after receipt of the said termination notice, instead of complying with said notice, has given evasive reply as per Ex.D6. He further contended that when the plaintiff has failed to vacate the suit schedule property, the defendant filed O.S.No.6047/2004 against the plaintiff for ejectment and for arrears of rent of Rs.1,84,060/- in respect of suit schedule 77 O.S.2320/00 C/w O.S.6047/04 property. So he contended that the very document produced by the plaintiff himself at Ex.P22 shows that he is a tenant under the defendants and the evidence on record shows that he is a defaulter in the matter of payment of rent. As such the tenancy of the plaintiff was terminated by issuing Ex.P5 termination legal notice and also the evidence on record clearly shows that the plaintiff is in arrears of rent of Rs.1,84,060/-. So what he contended that the plaintiff in order to overcome from his liability, i.e., to pay the arrears of rent and with an intention to not to vacate the suit schedule property, has falsely contended that defendant No.2 Ansar has executed Ex.P1, agreement to sell, and the evidence on record clearly shows that Ex.P1 is a created document in order to knock off the valuable suit schedule property. So what he contended that the very oral and documentary evidence on record clearly shows that the plaintiff in O.S.No.2320/2000 has failed to prove issue No.1 and 2 and the plaintiffs in O.S.No.6047/2004 have 78 O.S.2320/00 C/w O.S.6047/04 succeeded to prove issue No.1 to 3 and issue No.6. So in view of his above arguments, he urged to answer issue No.1 and 2 in O.S.No.2320/2000 in the Negative and issue No.1 to 3 and 6 in O.S.No.6047/2004 in the Affirmative.
78. In the light of the arguments canvassed by the respective counsels for the parties, I have gone through the records. Admittedly the plaintiff filed O.S.No.2320/2000 seeking the relief of specific performance of contract against the defendants, and the defendants of this case filed O.S.No.6047/2004 against the plaintiff of this case seeking for ejectment from the suit schedule property and for such other reliefs. Upon perusal of the order sheet dated 31/10/2008 passed in O.S.No.2320/2000, it shows that O.S.No.6047/2004 is clubbed along with this case for common trial.
79 O.S.2320/00 C/w O.S.6047/04
79. Upon hearing the rival contentions of the respective counsels for the parties, it shows that absolutely, there is no much dispute with regard to the factum that the plaintiff in O.S.No.2320/2000 was the tenant in respect of the suit schedule property as per registered lease deed dated 28/9/1993 for a period of 10 years which is very evident from Ex.P22 produced by the plaintiff. So also it is an undisputed fact that the suit schedule property was leased to the plaintiff by the defendants on monthly rents as stated in para 3 of Ex.P22, lease agreement. So also it is an undisputed fact that the defendants leased out the suit schedule property on monthly rents with security deposit of Rs.4,00,000/-. So also it is an undisputed fact that the defendants have received Rs.4,00,000/- through 11 cheques as stated in para 3 of the plaint.
80. It is the contention of the plaintiff that the defendants agreed to sell the suit schedule property for a total sale consideration of Rs.8,00,000/- and 80 O.S.2320/00 C/w O.S.6047/04 accordingly the defendant No.2, Ansar, on behalf of himself and also on behalf of other defendants executed Ex.P1, agreement to sell, by accepting another sum of Rs.4,00,000/- in addition to the security deposit of Rs.4,00,000/-, which was agreed to be adjusted for sale consideration amount through another 8 cheques as narrated in para 7 of the plaint. It is the contention of the plaintiff that the defendants sought at the first instance one year time to execute registered sale deed and subsequently they sought two years time to execute registered sale deed, as they wanted to complete 3rd and 4th floor in the suit schedule property and also they have agreed to lease out 3rd and 4th floor to one Susheela Devi on lease basis, who is none other than the wife of plaintiff and accordingly they have accepted Rs.2,00,000/- from her. It is the contention of the plaintiffs that inspite of execution of Ex.P1, agreement to sell, and inspite of time given to them as sought by them for execution of registered sale deed, but till this date, the defendants 81 O.S.2320/00 C/w O.S.6047/04 have not come forward to execute the sale deed and now contending that the plaintiff has got created Ex.P1, agreement to sell, by forging the signature of defendant No.2, Ansar. So the plaintiff has come up with the suit in O.S.No.2320/2000 seeking specific performance of the contract against the defendants.
81. Per contra it is the contention of the defendants that they have also not disputed the factum of plaintiff is tenant under them on monthly rent as stated in Ex.P22, lease agreement, and also they have not disputed the factum of security deposit of Rs.4,00,000/-. The only contention of the defendants is that the plaintiff was not in a position to pay Rs.4,00,000/- at a time, so, as per the request made by him, they have received Rs.4,00,000/- in installment through 11 cheques. So also it is the contention of the defendants that they all executed Ex.P22, lease agreement. So also it is their contention that the suit schedule property belongs to the father of 82 O.S.2320/00 C/w O.S.6047/04 defendant No.2 and after his demise they are all having right in the suit schedule property. So also it is their contention that the alleged Ex.P1 agreement to sell is a concocted and created document by the plaintiff by forging the signature of defendant No.2, Ansar, and he has not at all executed the said document on his behalf or on behalf of the other defendants. So also, it is the contention of the defendants that till this date, the plaintiff is a tenant under them and he is a chronic defaulter in the matter of payment of monthly rents. So they caused termination notice terminating his tenancy and he is in due of rents of Rs.1,84,060/-. So they have filed suit in O.S.No.6047/2004 against the plaintiff in O.S.No.2320/2000 seeking for his ejectment from the suit schedule property and for such other reliefs.
82. Before appreciating the rival contentions of the parties, at this juncture, it is relevant to state herein itself that DW1 who is one of the plaintiff in 83 O.S.2320/00 C/w O.S.6047/04 O.S.No.6047/2004 is not a party in O.S.No.2320/2000 and he has given evidence in these cases by obtaining general power of attorney from the defendants in O.S.No.2320/2000 and other plaintiffs in O.S.No.6047/2004 as per Ex.D2 and Ex.D3. It is the contention of the defendants in O.S.No.2320/2000 that till this date, the plaintiff is a tenant under them and they have not at all executed alleged Ex.P1, agreement to sell, and the alleged signature of defendant No.2 in the said document is a forged signature. Though the defendants have contended like so, but to prove the said aspect, they have not produced acceptable and cogent evidence before the court. It is the contention of the defendants that the plaintiff was not in a position to pay Rs.4,00,000/- at a time, so they received Rs.4,00,000/- in installments through 11 cheques. Though the defendants have contended like so in their written statement, but the said aspect is not forthcoming in Ex.P22, registered lease deed, dated 28/9/1993. When that would be the 84 O.S.2320/00 C/w O.S.6047/04 case, the say of the defendants cannot be accepted, as there is no acceptable evidence under what circumstances they received Rs.4,00,000/- security deposit in installments through 11 cheques. The plaintiff in order to establish his contention, he has produced Ex.P2 to Ex.P7. Upon perusal of Ex.P2 and Ex.P3, it shows that defendant No.2, Ansar, by accepting the remaining Rs.4,00,000/- stated that he has received the entire sale consideration amount and he is going to execute sale deed within one year or after completing the 2nd and 3rd floor construction by putting his signature. It is the contention of the defendants that the signatures forthcoming in Ex.P1 to Ex.P7 are not the signatures of defendant No.2, Ansar, and the plaintiff has forged the signature of Ansar and neither defendant No.2, Ansar, nor other defendants have received another sum of Rs.4,00,000/- in addition to the security deposit of Rs.4,00,000/- as claimed by the plaintiff.
85 O.S.2320/00 C/w O.S.6047/04
83. So far as the above said contention of the defendants is concerned, it can be said that DW1 has admitted signature of Ansar in vakalath and written statement and some other documents and he has denied the signature forthcoming in Ex.P1 to Ex.P7. The records shows that in view of the denial of the signature of Ansar by the defendants in the suit document, the same was referred to Handwriting Expert. The records shows that the Handwriting Expert after comparing the admitted and disputed signatures, submitted his report to the court, along with Annexures and also he has given evidence before the court. Upon perusal of evidence of CW1, who is the Assistant Director of Forensic Laboratory, it shows that wherein he has stated that the signatures found in the disputed and admitted documents are belongs to one and the same person. The learned counsel for the defendant, during the course of cross examination, tried to elicit from the mouth of CW1 that there is some variations in the alleged signature of Ansar in 86 O.S.2320/00 C/w O.S.6047/04 Ex.P6 and Ex.P7, but CW1 has stated that, though there is one word comes in between 'A' and 'S', but there was one stroke. So from looking into the cross- examination of CW1 by the defendants' counsel, it can be said that nothing worth has been elicited from his mouth that is to say deliberately in order to help the plaintiff or in collusion with the plaintiff he has given the false report. Apart from that, looking into the cross-examination made by the learned counsel for the defendants, it shows that he put questions as if he is an expert in giving opinion about Handwriting. When the Handwriting Expert of Forensic Laboratory authority after thorough examination of admitted and disputed signature has opined that both the signatures belongs to the same person and he has produced documents along with report, to come to the said conclusion, whatever the contention taken by the learned counsel for the defendant's that CW1 in collusion with plaintiff has given false report cannot be accepted and also it is needless to say that the 87 O.S.2320/00 C/w O.S.6047/04 signatures forthcoming in Ex.P1 to Ex.P7 are the signatures of Ansar only.
84. The learned counsel for the defendant, during the course of his arguments, contended that the plaintiff falsely contended that the defendant agreed to sell the suit schedule property for a total sale consideration of Rs.8,00,000/- and the defendants have agreed to adjust security deposit of Rs.4,00,000/- towards sale consideration amount and subsequently they have received remaining Rs.4,00,000/-. Though the defendants have contended like so, but in order to substantiate their contention, absolutely no acceptable evidence has been placed before the court. As it is already stated above, the very document produced by the plaintiff at Ex.P3 and Ex.P4 shows that defendant No.2, Ansar, by putting his signature stated that he has received the entire sale consideration amount and he is going to execute the sale deed within one year or after completion of 2nd and 3rd floors in the suit 88 O.S.2320/00 C/w O.S.6047/04 schedule property. Apart from that the very document produced by the plaintiff at Ex.P11, account extract, it shows that the remaining amount of Rs.4,00,000/- received by the defendants through 8 cheques, i.e., in between the period from 26/10/1996 to 8/11/1996 and that fact is very evident from Ex.P11, account statement. When that would be the case and when there is clear proof of documentary evidence with regard to the receipt of remaining amount of Rs.4,00,000/- in addition to the security deposit of Rs.4,00,000/-, whatever the contention taken by the defendants cannot be accepted. Even DW1, during the course of his cross examination at page No.14, 1st para wherein he admitted as under:
"It is true to suggest that cheques for total amount of Rs.4,00,000/- which were issued as mentioned in Ex.P21 were encashed by Ansar from Sourashtra Bank. It is true that this amount of Rs.4,00,000/- is with Ansar."
89 O.S.2320/00 C/w O.S.6047/04
85. Again after three lines DW1 further admitted as under:
"It is true to suggest that we had given authority to Ansar to keep this security deposit amount in his account in Sourashtra Bank".
86. So also DW1 further in 3rd para of the same page admitted as under:
"It is true to suggest that all these account payee cheques were encashed by Ansar through his account in the bank".
87. Again DW1 during the course of his cross examination in the same page to the question put by the learned counsel for the plaintiff has given answer as under:
"Q. I put it to you that Ansar had utilized said Rs.4,00,000/- for construction ?
Ans: He had utilized for construction."
90 O.S.2320/00 C/w O.S.6047/04
88. Looking into the above evidence given by DW1, during the course of his cross examination, it clearly goes to show that, apart from the security deposit of Rs.4,00,000/-, he has received another Rs.4,00,000/- and which is very evident from Ex.P3, Ex.P4 and Ex.P11. When such would be the case, the contention of the defendants that they have not at all received another sum of Rs.4,00,000/- and they have not at all executed the alleged Ex.P1, agreement to sell, cannot be accepted. Another important aspect and why a doubt may arises to believe the stand taken by the defendants is that DW1 in his cross-examination admitted that he was not present at the time of drafting Ex.P1, i.e., agreement to sell. So also he has admitted that one Jinanica was in possession of the suit schedule property as tenant and he stopped paying rent to the defendants and also admits that plaintiff is the owner of Jinanica concern. At this juncture, it would be just and necessary to quote the said portion of evidence given by DW1, during the 91 O.S.2320/00 C/w O.S.6047/04 course of his cross examination, at page No.17, 3rd line from the top which reads as under:
"It is true to suggest that when Ex.P1 was drafted, I was not present".
89. Again at page No.11 in the middle portion DW1 admitted as under:
"It is true to suggest that as mentioned in Ex.P16 one Jinanica is in possession of the suit schedule property."
90. Again DW1 in 2nd para, 1st three lines he has admitted as under:
"It is true to suggest that after 8/6/1997, the said Jinanica did not pay rents to defendant No.1 and plaintiff is the owner of Jinanica concern."
91. From the collective reading of the above evidence, it can be said that defendant No.2, Ansar, executed Ex.P1, agreement to sell, on his behalf and also on behalf of the other defendants and also it 92 O.S.2320/00 C/w O.S.6047/04 clearly shows that in pursuance of execution of Ex.P1 in favour of the plaintiff by the defendants the tenant by name Jinanica stopped paying rents to the defendants. So from the above evidence of DW1, adverse inference can be drawn that the defendants have executed Ex.P1, agreement to sell, for total sale consideration of Rs.8,00,000/- in favour of the plaintiff.
92. It is the contention of the defendants that first of all, defendant No.2, Ansar has not at all executed Ex.P1 on behalf of himself and other defendants. So far as the said contention of the defendants is concerned, this court has already rejected the said contention of the defendants as discussed above. So also it is the contention of the defendants that Ansar alone has no authority as because the suit schedule property is the property belongs to the father of Ansar and that all have got right in the property. So far as the said aspect is 93 O.S.2320/00 C/w O.S.6047/04 concerned, it can be said that though the defendants have contended like so, but in proof of the same, no convincing evidence has been placed before the court.
93. Per contra the evidence given by DW1, during the course of his cross examination, it goes to falsify the above contention taken by the defendants. At this juncture, it would be relevant to quote the evidence given by DW1, during the course of his cross examination, at page No.8, last line and 1st para in para 9 which reads as under:
"It is true to suggest that the suit property is standing in the name of Ansar and till this day, khatha, tax are all in the name of Ansar. It is true to suggest that after the death of my father when proceedings were held regarding transfer of khatha, we had given a letter with document and on the basis of those documents, khatha was transferred in the name of Ansar. The Joint Commissioner before whom proceedings took place, had enquired and then considering the document, had ordered for transfer of khatha
94 O.S.2320/00 C/w O.S.6047/04 in the name of Ansar. It is true to suggest that since about 20 years khahta is standing in the name of Ansar. It is true to suggest that the copy of the order of Joint Commissioner is with Ansar."
94. Looking into the above evidence given by DW1, during the course of his cross examination, it can be said that the contention of the defendants that Ansar alone had no right over the property cannot be accepted. No doubt in this case, the plaintiff, during the course of his cross examination stated that he knew that property belongs to the defendants, but the said evidence given by the plaintiff, in no way it would goes to affect his case / stand in view of the evidence given by DW1 as stated above. Apart from that, the contention of other defendants that they have also got right in the suit schedule property cannot be accepted, as because admittedly the defendants are Muslims and the concept of joint family and partition would not applicable to the Mohammadans or Muslims. So by 95 O.S.2320/00 C/w O.S.6047/04 looking into the above evidence whatever the contention taken by the defendants cannot be accepted.
95. As it is already stated in the beginning itself, DW1 who is a general power of attorney holder of the defendants is not a party in O.S.No.2320/2000, but he is a party in O.S.No.6047/2004. He obtained general power of attorney as per Ex.D2 and Ex.D3 in both the cases to give evidence on behalf of the defendants. The materials on record shows that defendant No.2, Ansar, has executed Ex.P1, agreement to sell, on behalf of himself and other defendants, but inspite of that, he has not come before the court to disprove the case of the plaintiff. It is the contention of the defendants that since defendant No.2 while talking stammers, so it would not possible for him to give evidence before the court. Upon perusal of the evidence of DW1, it shows that he himself in his evidence admitted that he also stammers while talking. At this juncture, it would be 96 O.S.2320/00 C/w O.S.6047/04 relevant to state the evidence given by DW1, during the course of his cross examination, at page No.7, which reads as under:
"Even though I stammer while talking, he will be stammering more than me."
96. So looking into the above evidence, even DW1 also stammers and when that would be the case, in order to substantiate their case, it is for the defendants to bring defendant No.2, Ansar, before the court to give evidence before the court, but the same has not been done by the defendants. Apart from that, the document Ex.D4, reference letter issued by Bowring and Lady Curzon hospital authorities, it shows that Ansar has no hearing problem and he can speak with difficulty. So from the very said document, it can be said that, as such, there is no such difficulty for Ansar to come and give evidence before the court. Apart from that, upon perusal of the evidence given by DW1, during the course of his cross examination, it 97 O.S.2320/00 C/w O.S.6047/04 clearly shows that this Ansar himself has given evidence in a criminal proceedings initiated by Susheela Devi against these defendants. At this juncture, it would be relevant to state the evidence given by DW1, during the course of his cross examination, at page No.8, 2nd para which reads as under:
"It is true to suggest that the said Ansar had given evidence in criminal case for himself and also on behalf of other accused, namely the defendants in the present case."
97. Looking into the above evidence given by DW1, adverse inference can be drawn that Ansar has deliberately evaded to come and give evidence before the court and also he knew that if he came before the court to give evidence the truth will come out. So in order to suppress the truth of the matter, he has deliberately not come before the court and executed power of attorney in favour of his brother DW1 who also stammers while speaking. So by taking note of 98 O.S.2320/00 C/w O.S.6047/04 the above evidence, it can be said that whatever the contention taken by the defendants cannot be accepted.
98. It is the case of the plaintiff in O.S.No.6047/2004 that till this date, the defendant of the said case and plaintiff in O.S.No.2320/2000 is a tenant under them. As it is already discussed above in detail, in view of the execution of Ex.P1, agreement to sell and entire payment of sale consideration amount, the plaintiff in O.S.No.2320/2000 and defendant in O.S.No.6047/2004 is not a tenant under the defendants. The contention of the learned counsel for the plaintiff in O.S.No.6047/2004 is that the defendant of the said case is a chronic defaulter in the matter of payment of rent and inspite of repeated requests and demands he has not paid the rents. So left with no option, they issued termination notice as per Ex.D5, but the defendant instead of complying with the said notice gave evasive reply. So he contended that the 99 O.S.2320/00 C/w O.S.6047/04 very lease deed executed by the plaintiffs in O.S.No.6047/2004, in the year 1993, was terminated by the plaintiffs with effect from 31/10/2003 and the same is in accordance with law. So far as the said contention of the learned counsel for the plaintiffs in O.S.No.6047/2004 and defendants in O.S.No.2320/2000, it can be said that as it is already discussed in detail, there is sufficient acceptable oral and documentary evidence placed before the court by the plaintiff in O.S.No.2320/2000 with regard to execution of Ex.P1 agreement of sale on 8/6/1997. So also the contents of Ex.P3 and Ex.P4 clearly shows that wherein the defendants particularly defendant No.2 Ansar who has executed Ex.P1, agreement, on his behalf and also on behalf of other defendants stated that he has received the entire sale consideration amount of Rs.8,00,000/- and he is going to execute the registered sale deed within one year or after completion of 2nd and 3rd floor in the suit schedule property. When that would be the case, the question 100 O.S.2320/00 C/w O.S.6047/04 of issuing termination notice as per Ex.D5 by the plaintiffs in O.S.No.6047/2004 and defendants in O.S.No.2320/2000 does not arise at all. As because at that particular point of time, there does not exist jural relationship of landlord and tenant. Under such circumstances, it is needless to say that there is no much weight in the arguments canvassed by the learned counsel for the plaintiffs in O.S.No.6047/2004 and defendants in O.S.No.2320/2000 .
99. The learned counsel for the defendants in O.S.No.2320/2000 and plaintiffs in O.S.No.6047/2004 contended that the plaintiff in O.S.No.2320/2000 and defendants in O.S.No.6047/2004 is a chronic defaulter in the matter of payment of rent and he is in due of arrears of rent of Rs.1,84,060/-. Though the learned counsel has contended like so, but in order to substantiate his contention, no acceptable neither oral nor documentary evidence has been placed before the court.
101 O.S.2320/00 C/w O.S.6047/04
100. Per contra the very documentary evidence placed before the court by the plaintiff at Ex.P4 and Ex.P5, it shows that the defendants have executed receipts for having received the amount of Rs.42,192/- for a period of 9 months on 29/6/1996 and Rs.56,256/- rent for the year 1996-97. When such would be the case, the say of the plaintiffs that the defendant is in arrears of rent of Rs.1,84,060/- does not arise. Apart from that, absolutely there is no convincing evidence, from which period to which period, the defendant has paid the rent and from which period to which period, he is in due of arrears of rent. Another important aspect to be taken note of here is that, DW1 in his evidence stated that the plaintiff is in due of arrears of rent from 1/3/1995 onwards and huge rents accumulated. If that would be the case, absolutely there is no acceptable explanation given by the defendants, why they have not immediately taken steps against the plaintiff.
102 O.S.2320/00 C/w O.S.6047/04 Admittedly, prior to filing of ejectment suit by the defendants in O.S.No.6047/2004, the plaintiff has filed O.S.No.2320/2000 against them, seeking the specific performance of contract. So from this conduct of the defendants, a doubt may arises to believe the contention taken by the defendants. So also DW1, during the course of his cross examination, at page No.19, 2nd para, 3rd line wherein he has admitted as under:
"It is true to suggest that after 8/6/1997 plaintiff has not paid rent."
101. The above evidence given by DW1 clearly goes to show that in pursuance of execution of Ex.P1, agreement to sell, on 8/6/1997, the plaintiff has not paid rents to the defendants and even the said factum is forthcoming in Ex.P3, wherein Ansar has stated that in view of the receipt of entire sale consideration amount in respect of the suit schedule property, there is no need for the plaintiff to pay rent in respect of the 103 O.S.2320/00 C/w O.S.6047/04 suit schedule property. When that would be the case, the say of the defendants in O.S.No.2320/2000 and plaintiff in O.S.No.6047/2004 that the plaintiff in O.S.No.2320/2000 and defendant in O.S.No.6047/2004 is in arrears of rent of Rs.1,84,060/- cannot be accepted.
102. The learned counsel for the plaintiff in O.S.No.2320/2000, during the course of his arguments, contended that the plaintiff was / is always ready and willing to perform his part of contract, but the defendants have not come forward to execute the registered sale deed. Upon perusal of the oral and documentary evidence on record, it clearly shows that there is sufficient material on record to show that the plaintiff has paid the entire sale consideration amount of Rs.8,00,000/- in respect of the suit schedule property and the very documents produced by the plaintiff at Ex.P3 and Ex.P4 clearly shows that the defendants have agreed to execute the 104 O.S.2320/00 C/w O.S.6047/04 registered sale deed within one year or after the completion of 2nd and 3rd floors in the suit schedule property, but inspite of causing of legal notice by the plaintiff to the defendants as per Ex.P8, the defendants inspite of receipt of the said notice have not come forward to perform their part of contract, i.e., to say, to execute the registered sale deed. Per contra they gave evasive reply as per Ex.P10. As it is already stated above, the plaintiff has performed his part of contract and there is nothing remains to be paid towards sale transaction to the defendants. The only thing is that he has to pay the registration charges and stamp duty and other incidental expenses for which he was / is always ready and willing to perform his part of contract, which is very evident from the evidence on record and Ex.P8 notice. Absolutely there is no contra evidence placed before the court by the defendants to show that there is lapses on the part of the plaintiff in not get execute the registered sale deed from defendants.
105 O.S.2320/00 C/w O.S.6047/04
103. The learned counsel for the defendants much contended that if according to the plaintiff, the defendants have executed alleged Ex.P1, why he has not got executed the registered sale deed at the earliest point of time and not taken immediate action against them in accordance with law. So far as the said contention of the learned counsel for the defendants, it can be said that, as it is already stated above, the very Ex.P2 and Ex.P4 produced by the plaintiff clearly shows that the defendant No.2 by receiving the entire sale consideration amount has stated that he is going to execute the registered sale deed within one year or after completing the 2nd and 3rd floor construction in the suit property. When that would be the case, it is needless to say that for the said reason, the plaintiff has not taken immediate steps against the defendants. Apart from that admittedly right from 1993 till execution of Ex.P1, agreement to sell, on 8/6/1997, the plaintiff was residing in the suit schedule property 106 O.S.2320/00 C/w O.S.6047/04 in the capacity of a tenant and in pursuance of Ex.P1, agreement to sell, on 8/6/1997, he is residing in the suit property as the owner which is very evident from Ex.P3 and Ex.P4. Apart from that, upon perusal of clause No.6 at page No.4 of Ex.P1, agreement to sell, it shows that, time is not the essence of contract. When that would be the case, and when the plaintiff is in possession of the suit property, it is needless to say that there is no need for the plaintiff to take immediate action against the defendants. So also the evidence on record clearly shows that the plaintiff was / is always ready and willing to perform his part of contract.
104. So by analyzing the overall oral and documentary evidence on record, it can be said that the plaintiff in O.S.No.2320/2000 has succeeded to prove issue No.1 and 2 and the plaintiff's in O.S.No.6047/2004 have failed to prove issue No.1 to 3 and issue No.6. Accordingly issue No.1 and 2 in O.S.No.2320/2000 is answered in the Affirmative and 107 O.S.2320/00 C/w O.S.6047/04 issue No.1 to 3 and issue No.6 in O.S.No.6047/2004 are answered in the Negative.
105. Issue No.4 in O.S.No.6047/2004: The defendant in his written statement at para 8 and 10 contended that after execution of Ex.P1, agreement to sell, though time taken by the defendants expired, they did not come forward to execute the registered sale deed. So he caused notice to the defendants in O.S.No.2320/2000 calling upon them to come and execute the registered sale deed, but they have failed to do so. He further contended that in view of the execution of Ex.P1, there does not exist jural relationship of landlord and tenant, as such the suit of the plaintiff in O.S.No.6047/2004 is not maintainable. As it is already discussed in detail in the above issues, there is sufficient acceptable and convincing evidence placed before the court by the defendant in O.S.No.6047/2004 with regard to the execution of Ex.P1, agreement to sell on 8/6/1997 and also in 108 O.S.2320/00 C/w O.S.6047/04 pursuance of the execution of same there does not exist jural relationship of landlord ant tenant in between himself and the plaintiffs. When that would be the case, and by considering the oral and documentary evidence on record, it can be said that the suit of the plaintiff in O.S.No.6047/2004 is not maintainable. For the foregoing reasons and discussions, this court is of the opinion that the defendant has succeeded to prove the contents of para 8 and 10 of the written statement. Accordingly issue No.4 for consideration is answered in the Affirmative by holding that the suit of the plaintiff is not maintainable.
106. Issue No.5 in O.S.No.6047/2004: In view of the detailed discussions made in the above issues, this court is of the opinion that the plaintiffs are not entitled for recovery of possession of the suit schedule premises. Accordingly issue No.5 for consideration is answered in the Negative.
109 O.S.2320/00 C/w O.S.6047/04
107. Issue No.7 in O.S.No.6047/2004: As it is already stated above, the very document produced by the plaintiff at Ex.P4 and Ex.P5 clearly shows that defendant in O.S.No.6047/2004 has paid the entire rent upto 1996-97 and in pursuance of execution of Ex.P1, agreement to sell on 8/6/1997, he has stopped payment of rents as per the say of the plaintiffs which is very evident from Ex.P3 and also as it is already stated above, DW1 in his evidence admitted that from 8/6/1997 onwards the defendant in O.S.No.6047/2004 stopped payment of rents. The reason for not paying rents from the said period onwards is that in view of execution of Ex.P1, agreement to sell dated 8/6/1997. When the defendant has paid up-to-date rent during his stay in the suit property in the capacity of tenant and when there is no need for the defendant to pay rents from 8/6/1997 in pursuance of execution of Ex.P1 dated 110 O.S.2320/00 C/w O.S.6047/04 8/6/1997, the question of claiming mense profits by the plaintiffs does not arise at all. Absolutely there is no acceptable materials for the said claim made by the plaintiffs. When that would be the case, this court has left with no option, except to answer issue in question for consideration in the Negative by holding that the plaintiffs are not entitled for mesne profits.
108. Issue No.3 in O.S.No.2320/2000: In view of detailed discussions made in the above issues, this court is of the opinion that the plaintiff is entitled for the relief of specific performance of contract. Accordingly issue No.3 is answered in the Affirmative.
109. Issue No.4 in O.S.No.2320/2000 and Issue No.8 in O.S.No.6047/2004: In view of my findings to the above issues, I proceed to pass the following:
111 O.S.2320/00 C/w O.S.6047/04 ORDER The suit filed by the plaintiff in O.S. No.2320/2000 is hereby decreed with cost.
The defendants are hereby directed to execute the absolute registered sale deed in favour of the plaintiff in respect of the suit schedule property at the cost and expenses of the plaintiff to meet the stamp duty and registration charges within three months from the date of this order. Failing which the plaintiff is at liberty to take steps in accordance with law.
Draw decree accordingly.
The suit of the plaintiffs in O.S.No.6047/2004 is hereby dismissed.
No order as to cost.
Draw decree accordingly.
The original judgment and decree shall be kept in O.S.No.2320/2000 and 112 O.S.2320/00 C/w O.S.6047/04 the copy of the same shall be kept in O.S.No.6047/2004.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in open Court on this the 1st day of October 2016).
(Sadananda M. Doddamani) XXV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE Witnesses examined for the plaintiff in O.S.No.2320/2000 & defendant in O.S.No.6047/2004 :
P.W.1 : C.Motilal Witnesses examined for the defendant in O.S.No.2320/2000 & plaintiff in O.S.No.6047/2004:
D.W.1 : Syed Mohammad Documents marked for the plaintiff/defendant in O.S.No.2320/2000 & O.S.No.6047/2004:
Ex.P1 : Agreement of sale
Ex.P2-7 : Acknowledgment for receipt of cheques
Ex.P8 : Copy of legal notice
Ex.P9,10 : Reply
Ex.P11 : Statement of account of Times Bank
Ex.P12 : Xerox copy of the lease deed
113 O.S.2320/00 C/w O.S.6047/04
Ex.P13 : Xerox copy of receipts
Ex.P14-16 : Electric bill, receipt, khatha extract Ex.P17-20: Postal acknowledgment Ex.P21 : Deposit receipt Ex.P22 : lease agreement Documents marked for the defendant/plaintiff in O.S.No.2320/2000 & O.S.No.6047/2004:
Ex.D1 : Certified copy of judgment in
C.C.32382/2001
Ex.D2,3 : General power of attorney executed by Ansar in O.S.No.2320/2000 & general power of attorney executed by other defendants in O.S.No.6047/2004 Ex.D4 : Reference letter Ex.D5 : Office copy of legal notice Ex.D6 : Reply notice Ex.D7,8 : Certified copy of document dated 1/9/18 & 20/9/2021 Ex.D9 : Original khatha extract Ex.D10 : Tax Paid receipt Ex.D11 : Tax paid receipt (Sadananda M. Doddamani) XXV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE 114 O.S.2320/00 C/w O.S.6047/04 115 O.S.2320/00 C/w O.S.6047/04 Judgment pronounced in open court (vide separate detailed order) with the following operative portion:-
ORDER The suit filed by the plaintiff in O.S. No.2320/2000 is hereby decreed with cost.
The defendants are hereby directed to execute the absolute registered sale deed in favour of the plaintiff in respect of the suit schedule property at the cost and expenses of the plaintiff to meet the stamp duty and registration charges within three months from the date of this order. Failing which the plaintiff is at liberty to take steps in accordance with law.
Draw decree accordingly.
116 O.S.2320/00 C/w O.S.6047/04 The suit of the plaintiffs in O.S.No.6047/2004 is hereby dismissed.
No order as to cost.
Draw decree accordingly.
The original judgment and decree shall be kept in O.S.No.2320/2000 and the copy of the same shall be kept in O.S.No.6047/2004.
XXV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.
117 O.S.2320/00 C/w O.S.6047/04