Bangalore District Court
M/S Oriental Tissues Pvt.Ltd vs ) M/S Baldev Chand Raheja on 9 December, 2021
IN THE COURT OF THE X ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-26).
Dated this the 9th day of December 2021
Present
Smt. SAVITRI SHIVAPUTRA KUJJI, B.Com., LL.B.
(Spl.),
X Addl. City Civil & Sessions Judge,
Bangalore.
O.S.No.216/2012
Plaintiff: M/s Oriental Tissues Pvt.Ltd., A
private limited Company registered
under the Companies Act 1956, with
its registered Office at No.7/1, First
Floor, K.H. Road, Bengaluru -560 027,
represented by its Director Mr. Radha
Krishna Hegde, S/o Sri. Narayan
Hegde.
(By M/s Mento Associates,
Advocates.)
V/s
Defendants: 1) M/s Baldev Chand Raheja
Dealers in Silk Yarn,
No.34, Basavanna Lane,
K.R.Setty Pet,
Bengaluru - 560 002.
2) M B Resham Udyog,
Raw and Twisted Silk Merchants,
No.34, Juma Masjid road cross,
Basavanna Lane, K R Setty Pet,
Bengaluru - 560 002.
(D.1 By Sri V. Prabhakar
D.2 by Sri. HJS -Advocates)
Raw
Date of institution of the suit 03.01.2012
Nature of the suit For declaration,
2 O.S.No.216/2012
Possession and
injunction
Date of the commencement
of recording of evidence 24.04.2014
Date on which the judgment 09.12.2021
Pronounced
Total duration Years Months Days
09 11 06
JUDGMENT
This suit is filed by the plaintiff against the defendants seeking for declaration, possession and for consequential relief of permanent injunction.
2. The brief facts leading to the plaintiff's case are summarized as under:-
That the subject matter of the litigation is detailed in schedule 'A' & 'B' of the plaint. Schedule 'A' of the plaint is said to be an immoveable property bearing No.34 which is portion of old No.9 renumbered as L-41 situate at Basavanna Lane, Kavadi Revanna Setty Pet, Chickpet Ward whereas 'B' schedule property is said to be a ground floor portion of 'A' schedule property and undivided share of 86.12 sq.fts. in the land portion of 'A' schedule property. The plaintiff claims to be the absolute 3 O.S.No.216/2012 owner of 'A' and 'B' schedule properties by virtue of a registered sale deed dated 13.01.2000 executed by one Smt.Nagarathna and S. Venkatesh and acquired ownership, title and rights over major portion of 'A' schedule properties through two other sale deeds dated 04.10.1999 and 20.12.1999. It is stated that except a small portion in the ground floor portion of 'A' schedule property the plaintiff is said to be the absolute owner of the entire remaining portion of 'A' schedule property including 'B' schedule property and after purchase of its portion of schedule 'A' & 'B' properties the plaintiff kept the same under lock and key and was not having any major portion in their portion of 'A' & 'B' schedule properties. It is further urged that in the month of August 2011, the plaintiff came to know that the defendants have been in illegal possession and squatting over 'B' schedule property and operating some business there challenging the title of the plaintiff over the same without having any right, title or interest over the said property and therefore the plaintiff requires the physical possession of 'B' schedule property since it has got absolute title over the said property. It is further urged 4 O.S.No.216/2012 that thereafter the plaintiff after coming to know about the said illegal occupation of the defendants over 'B' schedule property asked the defendants to vacate the same by orally demanding them to hand over possession of 'B' schedule property on 08.08.2011 and 16.08.2011, but they alleged to have not heeded to their demand and therefore the plaintiff has to come up with the present suit seeking the relief. It is stated that they had issued a legal notice dated 21.10.2011 calling upon the defendants to quit and surrender the vacant portion of 'B' schedule property within 15 days from the date of receipt of notice and though it was served upon defendant No.1 on 22.10.2011 and on defendant No.2 on 24.10.2011, they alleged to have given untenable reply on 11.11.2011. However they are alleged to be still in illegal occupation of 'B' schedule property. For these reasons the plaintiff has sought for declaration of their title and for possession of 'B' schedule property from the defendants and hence the suit.
3. In pursuance of service of suit summons, both the defendants appeared through their respective counsels and filed their written statements denying the 5 O.S.No.216/2012 claim of the plaintiff. At the very outset the defendant No.1 has questioned the maintainability of the suit on the grounds that it is bad for multiple cause of action and even he has questioned the locus-standi of the plaintiff to file a single suit in respect of independent tenancy. It is contended that two different schedule premises are in occupation of two independent tenants but the plaintiff has suppressed many material facts from the Court and hence he is guilty of suppression of material facts. It is further contended that the plaintiff has not disclosed whether defendant No.1 is a partnership firm or a proprietory concern as a Company and therefore the suit as against non-entity is also liable to be dismissed. It is further contended that though the plaintiff has filed suit in respect of 'A' and 'B' schedule properties, the defendant No.1 has nothing to do with the schedule 'A' portion or 'B' portion and therefore suit is also liable to be dismissed for mis-description of 'A' and 'B' schedule properties over which this defendant has nothing to do with the said premises. It is further contended by defendant No.1 that there is no privity of contract between himself and the plaintiff and even the plaintiff 6 O.S.No.216/2012 Company is not a registered Company as required under the Companies Act and even the so-called Mr.Radhakrisna Hegde is not the Director of the company. It is further contended that the suit is liable to dismissed for mis-joinder and non-joinder of necessary parties since the defendant No.2 is not shown to have been represented by any partner as required under Order XXX Rule 1 & 2 of CPC. It is further reiterated by the defendant No.1 that he has nothing to do with the defendant No.2 and the premises under occupation of this defendant is only 124.8 sq.fts but the plaintiff has deliberately given false schedule in respect of 'B' schedule property and it is further contended that the premises under the occupation of defendant No.2 is separate and distinct whereas the premises under the occupation of this defendant is entirely different, independent and distinct. It is contended that the shop premises under the occupation of defendant No.2 is 34/1 whereas the present suit is filed in respect of shop No.34. It is further denied that the plaintiff is the absolute owner of the schedule properties as claimed in the suit. It is further denied that the plaintiff got ownership and title 7 O.S.No.216/2012 over 'B' schedule property by virtue of a registered sale deed as claimed in the plaint. It is further denied that except a small portion in ground-floor portion of 'A' schedule property the plaintiff is the absolute owner of the remaining entire extent of 'A' schedule property including 'B' schedule property as claimed. It is further denied that after purchase of the property the plaintiff kept these properties under lock and key as claimed. It is further denied that in the month of August 2011 the plaintiff learnt about the alleged illegal possession of the defendants over 'B' schedule property and that on demand by the plaintiff the defendant Nos.1 & 2 did not vacate the schedule 'B' property as claimed. It is however contended by the defendant No.1 that the plaintiff with a dishonest intention in order to deceive him got issued notice dated 21.10.2011 to which he has suitably replied. It is further contended that there is no cause of action to file the present suit and the one shown in the plaint as 8th August 2011 is false. The maintainability of the suit is also questioned on the ground that it is barred by limitation and the suit reliefs are not properly valued and court fee paid thereon is not 8 O.S.No.216/2012 proper. It is the contention of this defendant that one Sri K.S. Venkatesh has sworn to an affidavit dated 25.03.2000 that his mother expired on 09.09.2000 and after her death he became the absolute owner of the entire property bearing No.34 and 34/A and he is the absolute legal holder to get the property in his name and he has already received rent from all the tenants including the real tenant Sri. Sunil B. Raheja in advance at the end of 31.03.2013 and hence the suit filed by this plaintiff is vexatious who is aware of the said tenancy and monthly rental. It is further contended that the defendants dispute the bonafide requirements of schedule property by the plaintiff. On the contrary it is contended by the defendant No.1 that the plaintiff is happily doing business at No.7/1, K.H. Road, Bengaluru and they do not require any other premises. The defendant No.1 has further contended that the plaintiffs are not aware of ownership or tenancy and that earlier one Sri. Baladev Chand Raheja was a tenant and a real owner Sri. Shamanna who received Rs.3,00,000/- subsequently the real tenant Sunil Raheja have also paid a goodwill sum of Rs.2,00,000/- on 01.05.1999 and 9 O.S.No.216/2012 advance sum of Rs.15,000/- to the real and lawful owner Sri Nagarathna who has executed permanent lease agreement dated 01.05.1999 in favour of the tenant and therefore the notice issued by the plaintiff is illegal which is not issued to the real and lawful tenants. For these reasons the defendant No.1 has sought for dismissal of the suit.
4. The defendant No.2 in his written statement has also reiterated the contentions raised by the defendant No.1 in his written statement and contended that there is no privity of contract between himself and the plaintiff and further reiterated that the defendant No.2 is a non-entity firm and therefore the suit filed against him without represented by any partner is bad for mis-joinder and non-joinder of necessary parties. He has further contended that he has nothing to do with the defendant No.1 and the premises in his occupation is only 125 sq.ft and is separate and distinct whereas the premises under occupation at defendant No.1 is entirely different. This defendant has also disputed the ownership of the plaintiff over the schedule property. It is further denied that the plaintiff has acquired title over the 10 O.S.No.216/2012 schedule 'A' and 'B' properties under registered sale deed of 2000 as claimed in the plaint. It is further denied that except small portion in the ground floor of 'A' schedule property the plaintiffs were become absolute owners of the remaining entire portion including 'B' schedule property and kept the same under lock and key as claimed in the plaint. This defendant has also denied that both these defendants have been squatting over the schedule 'B' property illegally and inspite of repeated demands by the plaintiffs they have refused to hand over possession of the schedule 'B' property to the plaintiff as alleged. This defendant has also reiterated about the contention of defendant No.1 that owner Smt.Nagarathna never sold schedule property to the plaintiff on 08.03.2000 since she died on 09.02.2000 itself and further contended by Sri K.S. Venkatesh in his affidavit has sworn to the effect that his mother died on 09.02.2000 and after her death he became the absolute owner of property No.34 and 34/A and therefore this defendant has also categorically denied the title of the plaintiff over the schedule property. This defendant has further denied that the schedule 'B' property has been 11 O.S.No.216/2012 kept under lock and key. On the contrary it is contended that the real and lawful tenants are very much using the schedule shop premises and the requirement urged by the plaintiff is absurd and dishonest. The rest of the contentions are the reiteration of the contentions of the defendant No.1 raised in his written statement and for these reasons the defendant No.2 has also sought for dismissal of the suit.
5. On the rival contentions of the parties, the following issues have been framed:-
1) Whether plaintiff proves that he is the absolute owner of schedule 'B' property?
2) Whether the plaintiff proves that the defendants are in illegal possession of Schedule 'B' property ?
3) Whether the defendants prove that they are in possession of 'B' schedule property as lawful tenants ?
4) Whether the defendants prove that the suit is bad for mis-joinder and non-joinder of necessary parties ?
5) Whether the suit of the plaintiff is barred by limitation ?12 O.S.No.216/2012
6) Whether plaintiff is entitled for recovery of vacant possession of suit schedule property from defendants ?
7) What order or decree?
6. To substantiate the claim of the plaintiff, its Director has been examined as P.W.1 and he has produced as many as 22 documents marked from Ex.P.1 to Ex.P.22. Per contra the defendant No.1 has deposed before the Court as D.W.1 and he has also relied on as many as 113 documents marked from Ex.D.1 to Ex.D.113. However the defendant No.2 has not adduced any evidence in support of his defence.
7. Heard arguments.
8. On hearing and on perusal of the relevant materials and the evidence on record, my findings on the above issues are as follows:-
Issue No.1:- In the Affirmative Issue No.2:- In the Affirmative Issue No.3:- In the Negative Issue No.4:- In the Negative Issue No.5:- In the Negative 13 O.S.No.216/2012 Issue No.6:- In the Affirmative Issue No.7:- As per final order, for the following:-
REASONS
9. Issue No.1 :- It is the specific case made out by the plaintiff which claims to be a registered company that it has become the absolute owner of the 'A' and 'B' schedule properties. According to their claim they got ownership over 'B' schedule property under a registered sale deed dated 13.01.2000 executed by one Mrs.Nagarathna and Mr.Venkatesh and further they got ownership over 'A' schedule property under two sale deeds dated 04.10.1999 and 20.12.1999. Thus according to the claim of the plaintiff it has become the absolute owner of entire 'A' schedule property except a small portion in the ground floor including 'B' schedule property and after purchase kept the said property under lock and key.
10. However it is the allegation of the plaintiff that in the month of August 2011 they learnt about the illegal occupation of schedule 'B' property by the defendants without having any right, title or interest over the same and thereafter despite repeated demands and requests 14 O.S.No.216/2012 made by the plaintiff they have failed to quit and surrender the vacant possession of 'B' schedule property.
Per contra the defendant Nos.1 & 2 have disputed the very title and ownership of the plaintiff over the 'A' & 'B' schedule properties. According to them the very frame of the suit is defective and it cannot be entertained since the premises in occupation of defendant Nos.1 & 2 are independent and two distinct portions, but the plaintiff has sought for relief by combining the same as detailed in 'B' schedule of the plaint which is not tenable.
11. It is the further contention of the defendants that the plaintiff is not the owner of either 'A' or 'B' schedule properties. They have questioned the very legality of documents of title of the plaintiff by contending that there was no possibility of the original owner Smt.Nagarathna selling the schedule property to the plaintiff on 08.08.2000 as claimed by them since she died much prior to it on 09.02.2000 and after her death her son K.S. Venkatesh became the absolute owner of the entire property bearing Nos.34 and 34/A and therefore the plaintiff has not become the lawful owner of the suit schedule property. In view of this specific dispute 15 O.S.No.216/2012 by the defendants with regard to very ownership of the plaintiff over the schedule properties, the heavy burden is cast upon the plaintiff to establish this material aspect at the first instance.
12. As stated above, the Director of the plaintiff- Company has deposed before the Court as P.W.1 and he has relied on 22 documents of which Ex.P.1 is said to be the original sale deed of 'B' schedule property dated 13.01.2000. As regards Ex.P.2 & P.3, they are khatha extracts of schedule property and Ex.P.4 to P.6 are encumbrance certificates for a period from 1988 till 2011. He has also produced one tax paid receipt at Ex.P.7 and 5 photographs showing the schedule properties which are marked together at Ex.P.8.
13. As regards Ex.P.9, it is the copy of legal notice issued to the defendants and Ex.P.10 & P.11 are the 2 postal acknowledgements. As regards Ex.P.12 and P.13 they are the reply notices issued by the defendants. Ex.P.14 and P.15 are the Board resolution copy and the Special Power of Attorney executed in favour of P.W.1 by the plaintiff. As regards the Ex.P.16 to P.18 are produced which contain tax paid receipts. As regards Ex.P.19, it is 16 O.S.No.216/2012 the encumbrance certificate for a period from 01.04.2011 to 22.05.2014. Since there was dispute even with regard to registration of the plaintiff's Company P.W.1 has produced the Registration Certificate at Ex.P.20. Again he has produced 5 more photographs along with the CD and the receipt which are marked at Ex.P.21 & P.22.
14. As against the oral and documentary evidence placed before the Court by P.W.1, the son of defendant No.1 has also deposed before the Court as D.W.1 and he has also relied on as many as 113 documents. As regards Ex.D.1, it is the copy of legal notice issued to the defendant No.1 by one Raghavendra Reddy. Ex.D.2 is the legal notice issued by the present plaintiff to D.W.1. As regards Ex.D.3, it is the reply notice issued by D.W.1 to Ex.D.2. Ex.D.4 is the postal acknowledgement receipt. D.W.1 has also produced the legal notice dated 21.10.2011 issued by the plaintiff to both the defendants and Ex.D.6 is his reply issued to the said notice and Ex.D.7 is postal receipt. As regards Ex.D.8 to D.12 they contain 11 rent paid receipts which are produced to show that the defendant No.1 had tendered rental amount to the said K.S. Venkatesh.
17 O.S.No.216/2012
15. As regards Ex.D.14, it is the affidavit of the said K.S. Venkatesh which is produced to show that he had sworn to this affidavit stating that his mother died on 09.02.2000 and that after her death he became the absolute owner of the property bearing No.34. DW1 has also produced three income tax returns which are marked from Ex.D.15 to D.17. As regards Ex.D.18, it is a Commercial Tax paid receipt. Ex.D.19 is the Commercial Tax returns and Ex.D.20 is its receipt. He has also produced Ex.D.21 which is an assessment order issued by the Commercial Tax department which is marked at Ex.D.21.
16. As regards Ex.D.22 to D.24, they are the copies of the turn over returns pertaining to his business. Ex.D.25 is another Commercial Tax paid receipt. Ex.D.26 is a notice issued U/S 72 of the KVAAT Act. As regards Ex.D.27 it is a notice issued by the commercial tax officer to defendant No.1 and Ex.D.28 is the notice issued U/S 72 of the KVAAT Act. As regards Ex.D.29 it is a request letter issued by the VAT Officer to D.W.1 and Ex.D.30 is the endorsement issued by the said department. D.W.1 has also relied on certain documents which are demand 18 O.S.No.216/2012 notices at Ex.D.31 and D.32 issued by the commercial tax officer. The receipts to that effect issued by the said department are produced from Ex.D.33 to D.35. As regards Ex.D.36 it is the application for renewal of licence submitted by D.W.1.
17. Further, Ex.D.37 is the application form renewal certificate. Ex.D.38 is the letter addressed to the Commercial Tax officer by D.W.1. As regards Ex.D.39, it is a copy for upto date registration data. As regards Ex.D.40 to D.54, they are the auction letter receipts issued under the Bengaluru Silk Exchange Center addressed to defendant No.1. Ex.D.56 to D.60 are the cash bills pertaining to the defendant No.1 firm with respect to his business. D.W.1 has also produced Ex.D.61 which is issued by the Govt. pertaining to his Firm. As regards Ex.D.62, they are two receipts for having paid amount under Ex.D.61. Ex.D.63 is once again such notice issued by the Govt and in pursuance of the payment is made under Ex.D.64 receipts. As regards Ex.D.65 to D.67, they also pertain to some receipts for having paid by defendant No.1 with respect to his business. 19 O.S.No.216/2012
18. To show that the said Venkatesh was his landlord, D.W.1 has produced his two letters which are at Ex.D.68 & D.69. To prove his occupation of his respective premises he has produced two telephone bills at Ex.D.71 & D.72 and a postal receipt at Ex.D.73. Again such telephone bills and receipts are produced from Ex.D.74 to D.80. As regards Ex.D.81 to D.90, they are the electricity paid bills and receipts. He has also produced some receipts of Sri Vinayaka Youth Devotees Committee to prove the payment of donation to the said committee which are marked from Ex.D.93 to D.96. He has also produced his statement of account which is marked at Ex.D.97. As regards Ex.D.98 to D.112, they are once the rent paid receipts issued by the said Venkatesh. D.W.1 has also produced a postal cover at Ex.D.113 addressed to the said Venkatesh to show that he is the tenant under the said Venkatesh.
19. In the backdrop of above oral and documentary evidence placed before the Court by both the parties now it is to be seen whether the plaintiff could establish his lawful title and ownership over the 'A' and 'B' schedule properties as on the date of filing of the suit. 20 O.S.No.216/2012 Before proceeding for further discussion on this issue, it is relevant to refer that during the pendency of the proceeding, the second defendant entered into settlment with the plaintiff and vacated the premises in his occupation and handed over the keys to the plaintiff before the Lok Adalat held on 25.04.2009 which has been duly noted by the court in the order sheet. Consequently the suit as against the second defendant came to be dismissed in terms of settlement. Therefore, now the plaintiff is required to prove its claim only against the first defendant.
20. To prove the title of the plaintiff over the disputed property, PW1 has produced Ex.P1 registered sale deed under which the owners/vendors Smt. Nagarathna and her son K.S Venkatesh have sold the suit 'A' and 'B' schedule properties on 13.01.2000. In pursuance of this sale deed, the plaintiff's name came to be mutated to the revenue records of the suit properties which is evident from Ex.P2 Khata Certificate, Ex.P3 Khata Extract , the E.Cs marked from Ex.P4 to P6. The plaintiff also shown to have paid tax pertaining to the suit properties which is also evident from the Tax paid receipt 21 O.S.No.216/2012 produced at Ex.P7. All these material documents have remained unchallenged by anybody, including the original owners.
21. However, the defendants in their written statements have disputed the title of the plaintiff over the suit properties. It is contended that Smt. Nagarathna would not have sold the said properties to the plaintiff on 18.03.200 when she had died much prior to it on 09.02.2000. It is relevant to note that nowhere the plaintiff has stated that she sold suit properties on 18.03.2000. On the contrary, it is their case that the said properties were sold on 13.01.2000 and even Ex.P1 sale deed reflects the same. It is further material to note that none of the defendants have claimed their ownership over the suit properties. On the contrary, they have clearly admitted that the suit properties originally belonged to Nagarathna and Venkatesh. The very fact that the first defendant handed over the keys of the premises in his occupation before Lok Adalat to the plaintiff itself is sufficient to prove that he has admitted the ownership of the plaintiff by virtue of Ex.P1 sale deed.
22 O.S.No.216/2012
22. Though much has been cross examined to PW1 with regard to the title of the plaintiff over suit properties, but the defendants having no rival claim over these properties cannot dispute the title of the plaintiff. Even according to them they are in possession of the suit B schedule property in the capacity as tenants. Under such circumstances they are not the competent persons to deny the title of the plaintiff over the suit properties. It is the vendors or any other persons having any rival claim over the properties who are competent and proper persons to dispute the ownership of the plaintiff over the suit properties.
23. It is further pertinent to note that the first defendant himself has examined DW2 who is a senior advocate who is examined to prove that the defendant No.1 is the tenant of the schedule premises and it has been elicited from the mouth of this witness that he had sent Ex.D2 legal notice to the defendants. It is material to note that incidentally it has also been elicited from this witness that he himself had drafted Ex.P1 sale deed and he has also identified his signature at Ex.P1(a). DW2 has 23 O.S.No.216/2012 clearly stated that under Ex.P1 the suit properties were sold to the plaintiff by the owners Nagarathna.
24. It is to be noted that when DW2 being the own witness has stated that under Ex.P1 the suit properties have been sold to the plaintiff, then DW1 is estopped from questioning the title of the plaintiff over the suit properties. Admittedly till this date Ex.P1 sale deed has remained unchallenged. Therefore, the bare denial by the first defendant regarding the title of the plaintiff cannot be sustained. Consequently this issue will have to be answered in favour of the plaintiff in the affirmative.
25. Issue Nos.2 and 3 :- Since both these issues are interconnected, they are tried together to avoid repetition of facts. According to the plaintiff the defendant No.1 has been illegally squatting over B schedule property inspite of issuance of legal notice by the plaintiff and as such he is a trespasser. Per contra, the first defendant has claimed that he is not in unlawful possession but he is occupying the premises in B schedule property measuring 124.08 Sq.fts. In support of his defence he has produced a number of documents. 24 O.S.No.216/2012
26. The first document relied on by DW1 is a legal notice dtd. 04.08.1998 issued by one Raghavendra Reddy to his father Baldev Chandra Raheja who was said to be the original tenant of B schedule property. In this legal notice, it is stated by the said Raghavendra Reddy that he has entered into sale transaction with the owner Nagarathna with respect to H.No.34 and had paid the entire sale consideration amount and that since he learnt that the father of DW1 has attempting to purchase the said property, he had to issue this notice by cautioning him. However, it is material to note that nowhere in this entire notice he has referred to the status of the father of DW1 as tenant of this property. Therefore, this document is of no use to the contention of DW1.
27. As regards Ex.D2, it is the legal notice issued by the plaintiff to DW1 terminating his tenancy. This document is produced to show that DW1 even after issuance of this legal notice by the plaintiff continued to be the tenant and he is not a trespasser. No doubt, the plaintiff has alleged that DW1 is a trespasser in the suit property, but this notice was issued to him after purchase of the suit properties thereby terminating his 25 O.S.No.216/2012 tenancy and since he did not comply with the demand of the plaintiff by vacating the schedule premises, it has been alleged in the plaint that DW1 has been squatting over the suit property as a trespasser.
28. It is further to be noted that since the plaintiff has sought to maintain this proceeding under the provisions of the Transfer of Property Act by issuing quit notice by terminating tenancy as DW1 has been consistently denying their title and also the existence of jural relationship of landlord and tenant, after the termination of the tenancy certainly the status of DW1 would become that of a trespasser. Hence, both these issues are accordingly answered thereby answering the second issue in favour of the plaintiff in the affirmative and issue No.3 against the defendants in the negative.
29. Issue No. 4 :- DW1 has also questioned the maintainability of the suit on the ground that it is bad for mis-joinder and non-joinder of necessary parties. It has been contended that the plaintiff is neither a Pvt.Ltd., Company registered under the Companies Act nor the said Radha Krishna Hegde is its Director. It is further contended that even the first defendant is non-entity 26 O.S.No.216/2012 Firm and not represented by the partner. It is to be noted that though similar contention has been raised by the first defendant, but this issue was not pressed into service at the earliest stage of the proceeding to non-suit the plaintiff.
30. It is further material to note that even the pleadings of the second defendant have been verified by one Uttamchand without disclosing his designation. Whether he is a partner or whether it is a proprietorship firm is also not made clear in their pleadings. Moreover, who are other partners of the second defendant, is also not clarified either by DW1 or by the second defendant. Therefore, without substantiating such contentions, this defence of the defendants is not sustainable. Hence, this issue is answered against the defendants in the negative.
31. Issue No.5 :- The defendants have also sought to non-suit the plaintiff on the ground that their claim is barred by limitation. It is contended that since there is serious dispute with regard to the ownership of the plaintiff over the suit properties, the suit brought after 12 years of the date of purchase is barred by limitation. No doubt, the plaintiff has sought for 27 O.S.No.216/2012 declaratory relief regarding their title over the suit property, but it is relevant to note that as discussed supra, the defendants who themselves claim to be the tenants of B schedule property, cannot question the title of the plaintiff since their status is no better than that of a tenant.
32. It is further material to note that except contending that the plaintiff's sale deed is a concocted document and the defendants still do not admit their title, the defendants have not placed before the court any materials either oral or documentary, to prove whether the original owners still continue to be the owners of the suit property. On the other hand, their own witness DW2 has affirmed the title of the plaintiff over the suit properties under Ex.P1 sale deed. It is a well settled position of law that a tenant during the subsistence of their tenancy, is estopped from questioning the title of the landlord. Therefore, merely because the plaintiff has also sought for declaratory relief regarding its title after 12 years of their purchase of the suit properties, that itself would not give rise to an issue regarding limitation. 28 O.S.No.216/2012 Hence, this issue also will have to be answered against the defendants in the negative.
33. Issue Nos.6 and additional issue No.1 :-
Since both these issues are interconnected, they are tried together to avoid repetition of facts. The defendants since the inception have been questioning the maintainability of the suit on the ground that the description of 'B' Schedule property is totally incorrect. It has been vehemently argued by the learned defence counsel that the premises in occupation of defendants 1 and 2 are two different tenements and their tenancy is distinct and therefore, the plaintiff ought to have brought two separate proceedings against these two tenants.
34. It is further urged with some vehemence that DW1 is occupying premises measuring 124.08 sq.fts and the second defendant has pleaded that he was in occupation of premises 124 sq.fts. It is also contended that the premises in occupation of D-2 was No.34/1 whereas the relief is sought for by the plaintiff with respect to shop bearing No.34 including both tenements which is not tenable. However, in the cross examination 29 O.S.No.216/2012 DW1 has stated that he is in possession of 124 sq.fts property which is contrary to his own pleadings.
35. It is further to be noted that the plaintiff has specifically mentioned the description of the B schedule property measuring 324.425 sq.fts which is said to be the ground floor portion of A schedule property bearing No.34. It is further relevant to note that already defendant No.2 has vacated shop No.34/1. The learned defence counsel has vehemently argued that after D-2 vacating the said shop No.3/1, the plaintiff ought to have amended the schedule B property in the plaint and also would have deleted the name of D-2. Since the suit as against D-2 has already been dismissed as settled, again the plaintiff need not delete his name from the cause title of the plaint.
36. As regards the contention of the first defendant that the pleadings are vague and ambiguous as regards the specification of the shop in his possession he cannot be evicted in the absence of any specific description being furnished by the plaintiff. This line of contention raised by DW1 cannot be sustained for the simple reason that the plaintiff has specifically stated 30 O.S.No.216/2012 that the defendants have been in possession of B schedule property which is the ground floor portion forming part of A Schedule property.
37. It is also relevant to note that the own documents of DW1 Ex.D1 and the various rent receipts produced by him from Ex.D to D13 and the other documents marked from Ex.D44 to D61 and D63 themselves reveal that he is in occupation of B schedule property on the ground floor. Therefore, it cannot be said that there still remains any ambiguity in describing the premises in occupation of DW1. On the other hand, it is nothing but a futile attempt made by DW1 to continue to squat on the schedule premises illegally.
38. The other exhaustive argument canvassed by the learned defence counsel to non-suit the plaintiff is with regard to maintainability of the suit before this court. It is vehemently contended that the claim of the plaintiff before this court is not maintainable since the defendants are protected under the Rent Act. The learned defence counsel argued that after the second defendant vacating his portion of the B schedule property, the plaintiff has to proceed only against the 31 O.S.No.216/2012 first defendant who is occupying only a small portion of the said property. As stated supra, DW1 has contended that he is the tenant of a portion measuring 124.8 sq.fts and therefore, it is urged that the provisions of Rent Act are applicable to the case. In support of his arguments, the defendant's counsel has also sought to rely on a decision reported in Sri. Anantswami v/s Smt. Radha Srinath and another in ILR 2010 Kar 2204 wherein it is held as under:
It is true that the express bar contained in Sec.50 of the Rent Act 1999 for entertaining a suit is limited to matters relating to fixation of fair rent or to any other matter which the Controller is empowered to decide by or under the Act. Therefore, it should not be understood that the Civil Court has jurisdiction to entertain a suit for eviction of a tenant from a premises covered under the provisions of the Act. The non-obstante clause contained in the opening part of Sub-Sec.(1) of Sec.27 makes it clear that the order or decree for recovery of possession of any premises defined in Sec.3(i) of the Act shall be made by the Court, District Court or High Court in favour of the landlord against a tenant in accordance with Sub-Sec.(2) of Sec.27 of 32 O.S.No.216/2012 the Act. 'Court' has been denied in Sec.3(c) of the Act, which means the Court of Small Causes in so far as the areas comprised within the limits of the City of Bangalore. Sub-Secs.(ii) and (iii) of Sec.3(c) specifies the territorial jurisdiction of the courts in respect of the other areas in the State of Karnataka. The word 'Court' does not include the ordinary Civil Courts because it specifies the Courts which alone can have jurisdiction to pass an order for recovery of possession of the premises one one or more grounds enumerated therein.
Therefore, it is not necessary to take the assistance of theory of exclusion of jurisdiction of Civil Courts by necessary implication. Having regard to the embargo contained in sub-sec.(1) of Sec.27 of the 1999 Act, the Civil Court could not have directed delivery of possession of the suit schedule premises.
39. With due regards to the proposition of law laid down in the above cited decision, it cannot be said that the same principles would assist DW1 in the instant case for the simple reason that in the case involved in that decision there was an agreement between the parties which was according to the landlord was a mortgage deed and even there was no specific denial by the tenant 33 O.S.No.216/2012 therein that he was inducted in the premises by the landlord. In other words there was no denial by the tenant with regard to their contractual relationship and ultimately it was held that the said document is not a mortgage but it is a lease agreement and that finding of the trial court as well as the Hon'able High Court was not assailed by the tenant. Therefore, there was no serious dispute with regard to the jural relationship of landlord and tenant between the parties. In that view of the matter, it was held that since the premises was coming within the purview of Sec.27 of the Rent Act, the civil court has no jurisdiction to entertain the petition filed by the landlord. However, this is not the circumstance involved in the instant case.
40. As discussed supra, DW1 herein has seriously disputed not only the title of the plaintiff over the suit property, but has also denied the existence of jural relationship of landlord and tenant between the plaintiff and himself. On the contrary, he still claims to be the tenant under the original owner for which no supporting evidence is placed before the court. Under such circumstances once the jural relationship and the title of 34 O.S.No.216/2012 the landlord is disputed by the tenant, the jurisdiction of Rent Court gets ousted u/s 50(2) of the Rent Act which reads thus:
Nothing in sub-sec.(1) shall be construed as preventing a Civil Court from entertaining any suit or proceeding to decide any question of title to any premises to which this Act applies or any question as to the person or persons who are entitled to receive the rent of such premises.
In view of the above settled position of law, now it is no longer open to DW1 to still contend that the claim of PW1 falls within the ambit of Rent Act. Hence, the preposition of law laid down in the above cited decision would not come to his aid since the facts involved in the said decision cannot be equated with the facts on hand.
41. As regards the prayer of the plaintiff for issue of permanent injunction, it has not been substantiated as to how and when did DW1 interfered with their possession over B schedule property. Except seeking injunctive relief in the prayer column, there are absolutely no pleadings nor any evidence to that effect. Hence, in the absence of any cogent supporting 35 O.S.No.216/2012 evidence, the plaintiff cannot be granted the said equitable relief of injunction. Therefore, in the facts and circumstances of the case and for the reasons assigned on the above issues, it could safely be concluded that the plaintiff is entitled to seek the recovery of possession of B schedule property from DW1. Hence, both these issues are accordingly answered thereby answering issue No.6 in favour of the plaintiff in the affirmative and the additional issue against the first defendant in the negative.
42. Issue No.7 :- From the evidence on record, it is now proved that the defendant No.1 has deliberately squatted over the schedule B property knowing well that the plaintiff is entitled to recover the possession of the suit property from him and despite knowing the fact that the second defendant had already vacated his portion of premises. Instead of complying with the demand made in the quit notice, he has made the plaintiff knock the doors of this court to seek the relief by incurring monetary expenditure in the form of payment of court fee and litigation expenses. Hence, the suit deserves to be 36 O.S.No.216/2012 decreed with cost. In the result, the court hereby proceeds to pass the following:-
ORDER The suit filed by the plaintiff against the defendant No.1 for declaration and possession is hereby decreed with cost. The plaintiff is hereby declared as the absolute owner of the suit Schedule B property.
The defendant No.1 is hereby directed
to vacate and hand over the vacant
possession of the premises in his
possession in B Schedule property within one month from the date of this order. On his failure to comply with the same, the plaintiff is at liberty to recover the possession of the said premises through the process of court.
However, the prayer for grant of permanent injunction is hereby rejected. 37 O.S.No.216/2012
Draw decree accordingly.
(Part of the Judgment is dictated to the J/W and part is typed by me directly on laptop, carried out corrections, print out taken and then pronounced in the Open Court on this the 9th day of December, 2021) (SAVITRI SHIVAPUTRA KUJJI) X Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiff:
PW.1 : Sri. Radha Krishna Hegde List of documents exhibited for plaintiffs:
Ex.P1 : Original Sale Deed dated 13.1.2000 Ex.P2 : Khata Certificate Ex.P3 : Khata Extract Ex.P4 : Encumbrance Certificate from 1.4.1988 to 31.03.2004 Ex.P5 : Encumbrance Certificate from 1.4.2004 to 04.01.2011 Ex.P6 : Encumbrance Certificate from 01.01.2011 to 12.10.2011 Ex.P7 : Tax Paid Receipt Ex.P.8 : Five negatives of photographs Ex.P.9 : Copy of Legal Notice Ex.P.10 & 11 : Two Postal Acknowledgements Ex.P.12 : Reply Notice Ex.P.13 : Reply Notice Ex.P.14 : Copy of Board Resolution Ex.P.15 : Special Power of Attorney 38 O.S.No.216/2012 Ex.P.16 : Tax Paid Receipts for 2012-13 Ex.P.17 : Tax Paid Receipts for 2013-14 Ex.P.18 : Tax Paid Receipts for 2014-15 Ex.P.19 : Encumbrance Certificate for the period from 01.04.2011 to 22.05.2014 Ex.P.20 : Certified Copy of the Company Registration Certificate along with Receipt (Two Pages) Ex.P.21 : Five photographs with CD Ex.P.22 : Photo Charges Receipt List of witnesses examined for the defendants:-
DW1 : Sri Sunil B. Raheja
DW2 : N. Jaiprakash Rao
List of documents got exhibited for the
defendants:-
Ex.D1 : Copy of Legal Notice date 04.08.1998
Ex.D2 : Copy of Legal Notice dated 10.10.2000
Ex.D3 : Copy of Reply Notice dated 30.10.2000
Ex.D4 : Postal Acknowledgement
Ex.D5 : Copy Legal Notice dated 21.10.2011
Ex.D6 : Copy of Reply Notice dated 11.11.2011
Ex.D7 : Speed Post Acknowledgement dated
24.11.2011
Ex.D.8 to D.13 : 11 Rent Receipts
Ex.D14 : Affidavit of Sri. K.S. Venaktesh
Ex.D15 : VAT Returns for the period from 1.04.2005
to 30.04.2005
Ex.D16 : VAT Returns for the period from 1.05.2005
to 31.05.2005
39 O.S.No.216/2012
Ex.D17 : VAT Returns for the period from 1.07.2007
to 30.09.2007
Ex.D18 : Acknowledgement Slip dated 16.10.2007
Ex.D.19 : VAT Returns for the period from 1.10.2007
to 31.12.2007
Ex.D.20 : Acknowledgement Slip dated 17.01.2008
Ex.D.21 : Assessment Order dated 24.09.2003
Ex.D.22 : Return of Turnover for the period from 01.04.2003 to 31.03.2004 Ex.D.23 : Return of Turnover for the period from 01.04.2004 to 31.03.2005 Ex.D.24 : Annual Statement for the period from 01.04.2007 to 31.03.2008 Ex.D.25 : Acknowledgement Slip dated 27.05.2008 Ex.D.26 : Notice under Sec.72 of KVAT Act, 2003 dated 31.07.2007 Ex.D.27 : Notice dated 26.03.2007 issued by the Asst.Commissioner of Commercial Taxes, Bengaluru.
Ex.D.28 : Notice under Sec.72 of KVAT Act, 2003 dated 01.08.2011 Ex.D.29 : Letter dated 14.06.2013 Ex.D.30 : Intimation dated 29.04.2010 Ex.D.31 to D.35: Receipts Ex.D.36 & 37 : Applications for grant of renewal certificate of Exemption in Form 2-B Ex.D.38 : Letter dated 30.04.2005 Ex.D.39 : Proforma to update Registration Data dated 20.04.2006 40 O.S.No.216/2012 Ex.D.40 to 55 : Auction Letters with receipts Ex.D.56 to 60 : Cash Bills Ex.D.61 : License Renewal Certificate Ex.D.62 & 63 : Receipts Ex.D.64 to 67 : Renewal of Purchase License with receipts Ex.D.68 to 70 : Letters from K.S.Venkatesh Ex.D.71 to 81 : Telephone Bills and Receipts Ex.D.82 to 91 : Electricity bills and receipts Ex.D.92 : Letter dated 24.05.1996 Ex.D.93 to 96 : Payment Receipts Ex.D.97 : Extract of Statement of Account Ex.D.98 to 112 : Rent Receipts Ex.D.113 : Returned Postal Cover X Addl. City Civil & Sessions Judge, Bangalore.