Karnataka High Court
Mrs Farhana Banu vs M/S Nitco Roadways Ltd on 18 July, 2022
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
R.F.A. No.1983 OF 2021 (MON)
BETWEEN
Mrs. Farhana Banu
D/o Mr. Meer Mohammed Oosman
W/o Mr. Mushtaq Ahmed
Aged about 47 years
R/at No.435, I Floor, Chowdappa Layout
Akki Thimmanahalli, Shanthinagar
Bengaluru-500 027. ...APPELLANT
(By Sri M.D. Raghunath, Advocate)
AND
M/s. Nitco Roadways Ltd.
No.21, H. Siddaiah Road
8th Cross, Bengaluru-560 027
Represented by its Managing Director
Mr. Kunil Bhalla
Having its office at
M/s. Nitco Roadways Ltd.
Nitco House, Talab Tilla
Jammu-180 002. ...RESPONDENT
(Respondent - Served; Unrepresented)
This RFA is filed under Section 96 of CPC, against the
Judgment and decree dated 20.01.2021 passed in O.S.
No.25920/2017 on the file of the XIII Additional City Civil and
Sessions Judge, Mayohall unit, Bangalore, dismissing the suit for
recovery of money and possession.
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This appeal coming on for admission this day, the court
delivered the following:
JUDGMENT
This appeal by the unsuccessful plaintiff in O.S.No.25920/2017 is directed against the impugned judgment and decree dated 20.01.2021 by the XIII Addl.City Civil and Sessions Judge, Mayohall Unit, Bangalore, whereby the said suit filed by the appellant- plaintiff against the respondent-defendant for declaration, recovery of possession, money and other reliefs in respect of the suit immovable property was dismissed by the trial court.
2. Heard the learned counsel for appellant and perused the material on record. The respondent having been served with the notice of the appeal, has chosen to remain unrepresented and has not contested the appeal.
3. The material on record indicates that the appellant - plaintiff instituted the aforesaid suit inter alia contending that the suit schedule property was originally 3 owned and possessed by her father namely Meer Mohammed Oosman, who was the landlord of the property and had inducted the respondent - defendant as a tenant under him. During his lifetime, the plaintiff's father gifted the suit schedule property in favour of the plaintiff and her sister Smt.Tabassum Banu vide registered gift deed dated 01.07.1999, under which, the plaintiff and her sister acquired 2/3rd and 1/3rd undivided shares each in the suit schedule property, pursuant to which, the defendant attorned his tenancy under the plaintiff and her sister, initially on a monthly rent of Rs.4,800/- per month with an enhancement of 10% rent on every term of three years.
4. The plaintiff contended that the plaintiff was a co- owner of the suit schedule property and called upon the defendant to pay the rents, which were not complied with by the defendant. On the other hand, the defendant induced the plaintiff to enter into a Sale agreement dated 07.07.2004 with him to purchase her 1/3rd undivided share in the suit schedule property for a meager sum of Rs.7 lakhs and paid Rs.50,000/- as advance and promised to 4 complete the sale transaction within four months. It is further contended that the said sale agreement as executed by the plaintiff under compulsion, undue influence and misrepresentation and is barred by limitation having stood terminated, revoked and rescinded by efflux of time. It is contended that the respondent - defendant did not take any steps against the plaintiff or her sister from 07.02.2004 onwards.
5. It is also contended that the plaintiff got issued a notice dated 18.02.2010 calling upon the defendant to not only pay the arrears of rent but also to vacate and hand over vacant possession of the suit schedule premises to the plaintiff. Since the respondent - defendant did not comply with the said requests, plaintiff got issued one more legal notice dated 12.01.2017 which was also neither replied to by the defendant nor complied with and as such, the plaintiff instituted the aforesaid suit against the defendant.
6. The respondent - defendant filed its written statement inter alia disputing the various contentions and 5 claims put forth by the plaintiff. It was contended that while the gift deed dated 01.07.1999 executed by Sri.Meer Mohammed Oosman in favour of the plaintiff and her sister was a matter of record, the alleged attornment of tenancy by the defendant in favour of the plaintiff and the agreement to pay enhanced rent by him to the plaintiff were denied by the defendant. It was contended that the defendant was in occupation and possession of the suit schedule property as an agreement holder / purchaser and there was no relationship of landlord and tenant between the plaintiff and the defendant. It is also contended that despite executing the sale agreement dated 07.02.2004 in favour of the defendant, the plaintiff did not come forward to perform her part of the contract and as such, her claim for eviction was liable to be rejected. The claim of the plaintiff is barred by limitation and since there is no relationship of landlord and tenant between the plaintiff and the defendant, the suit was not maintainable and the same was liable to be dismissed.
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7. Based on the above pleadings, the trial court framed the following issues:-
" 1) Whether the plaintiff proves that the relationship b/w her and defendant as landlord and tenant?
2) Whether the plaintiff proves that the defendant has failed and neglected to pay monthly rents therefore, the defendant is liable to pay arrears of rent of Rs.2,37,672/-?
3) Whether the plaintiff proves that she is entitled to mesne profit of Rs.30,000/-
P.M. for the use and occupation of the suit schedule property by the defendant after termination of tenancy?
4) Whether the plaintiff proves that she is entitled to the relief's of a sought for in the plaint? ".
8. The plaintiff examined herself as PW-1 and documentary evidence at Exs.P1 to P7 were marked. The defendant cross-examined PW-1 and confronted one document to her as Ex.D1, which contains the signature of her husband at Ex.D1(a). However, the defendant did not adduce any oral or documentary evidence in support of his defence.
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9. After hearing the parties, the trial court answered issue No.1 relating to relationship of landlord and tenant between the plaintiff and defendant in the 'negative' against her and consequently, proceeded to answer the other issues also against her and dismissed the suit by passing the impugned judgment and decree which is assailed in the present appeal. As stated supra, the respondent - defendnat having been served with notice of this appeal, has chosen to remain unrepresented and has not contested the appeal.
10. The following points arise for consideration in the present appeal are as follows:-
(i) Whether the trial court was justified in coming to the conclusion that there does not exist a jural relationship of landlord and tenant between plaintiff and defendant?
(ii) Whether the impugned judgment and decree passed by the trial court warrants interference in the present appeal?8
Re-Point Nos. 1 and 2:-
11. A perusal of the material on record including the impugned judgment and decree will indicate that the trial court has failed to consider and appreciate the clear admission of the defendant in his written statement to the effect that he was a tenant under the plaintiff's father Meer Mohammed Oosman. Further, the defendant had also admitted that the plaintiff's father had gifted the suit schedule property in favour of the plaintiff and her sister Tabassum Banu vide registered gift deed dated 01.07.1999; in this context, the trial court failed to appreciate that it follows therefrom that by virtue of Section 109 of the Transfer of Property Act, the plaintiff and her sister became co-owners and co-landlords of the suit schedule property and the defendant became a tenant under them, pursuant to the aforesaid gift dated 01.07.1999 executed in their favour by their father and earlier landlord. The trial court has also failed to consider and appreciate the cross-examination of PW-1 (plaintiff) by the defendant who has suggested and admitted that the plaintiff had become owner of 1/3rd share in the suit 9 schedule property by virtue of the gift deed dated 01.07.1999 executed by her father in her favour. It is significant to note that the specific contention urged by the defendant that the plaintiff had entered into a sale agreement dated 07.02.2004 with the defendant, agreeing to sell her undivided 1/3rd share in favour of the defendant was sufficient to establish that the plaintiff was a co-owner / co-landlord of the suit schedule property along with the defendant.
12. A perusal of the material on record will clearly establish that the trial court has misread and misconstrued the pleadings and evidence of the parties, which clearly establish that the defendant had not only admitted that the plaintiff was the co-owner / co-landlord of the suit schedule property as well as a tenant under the plaintiff and her sister and the failure on the part of the trial court to consider the same has resulted in erroneous conclusion.
13. The impugned judgment and decree also indicates that the trial court has proceeded on the erroneous premise/ basis that since the plaintiff had 10 executed a sale agreement dated 07.02.2004 in favour of the defendant, there did not exist relationship of landlord and tenant between the parties. In this context, the trial court failed to appreciate that apart from the fact that the said agreement had not been produced by the defendant in order to establish that the relationship of landlord and tenant between the parties had stood extinguished by virtue of the said agreement and its recitals, mere execution of a sale agreement by the plaintiff - landlord in favour of a sitting tenant (defendant) was not sufficient to either terminate the tenancy or come to the conclusion that the relationship of landlord and tenant between had been extinguished or had come to an end.
14. The trial court also failed to appreciate that the plaintiff being undisputedly a co-owner / co-landlord of the suit schedule premises was entitled to seek eviction of the defendant who was a complete stranger to the family of the plaintiff. Yet another factor / circumstance that has been lost sight of by the trial court is the undisputed fact that the defendant had not done any act, deed or thing 11 subsequent to 07.02.2004 when the plaintiff is alleged to have executed a sale agreement in favour of the defendant and had not filed any suit for specific performance against the plaintiff; these undisputed facts clearly establish that the defendant was not entitled to protection of his possession under Section 53-A of the Transfer of Property Act and could not defend his possession on the ground that he was a sale agreement holder and that there was no relationship of landlord and tenant between the parties.
15. It is also pertinent to note that the reasoning and findings recorded by the trial court at paragraphs-21 to 24 of the impugned judgment and decree are clearly erroneous, perverse, arbitrary and contrary to the material on record warranting interference by this Court in the present appeal. Under these circumstances, upon re- appreciation and re-evaluation of the entire material on record and in the light of the unimpeached testimony of PW-1 coupled with complete absence of any evidence adduced by the defendant, I am of the considered opinion that the appellant - plaintiff had established the 12 relationship of landlord and tenant between herself and the defendant and was consequently, entitled to a decree for eviction against the defendant.
16. Insofar as the claim for past and future mesne profits made by the plaintiff are concerned, in the absence of any material to establish that the rate of rent initially paid at Rs.4,800/- per month by the defendant was enhanced subsequently, I am of the view that the plaintiff would be entitled to arrears of rent / past mesne profits / damages at the rate of Rs.4,800/- per month for a period of three years prior to 08.08.2017, on which date, the suit was instituted by the plaintiff before the trial court till the date of the impugned judgment and decree. It is needless to state that the plaintiff would also be entitled to future mesne profits / damages in accordance with Order 20 Rule 12 CPC.
17. In the result, I pass the following:-
ORDER
(i) Appeal is hereby allowed;13
(ii) The impugned judgment and decree dated 20.01.2021 passed in O.S.No.25920/2017 on the file of the XIII Addl. City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru, is hereby set aside.
(iii) Suit of the plaintiff is partly decreed as prayed for.
(iv) The respondent - defendant is directed to quit and deliver vacant possession of the suit schedule premises to the appellant-plaintiff within a period of 4 (four) months from today.
(v) The respondent - defendant is directed to pay arrears of rent / mesne profits / damages to the appellant
- plaintiff at the rate of Rs.4,800/- per month from July 2014 onwards till the date of the suit.
(vi) The appellant - plaintiff is also entitled to mesne profits / future mesne profits from the respondent - defendant in accordance with Order 20 Rule 12 CPC.
Sd/-
JUDGE Sd/Srl.