Bangalore District Court
Smt. Leela M. Jain vs Sri. Hardev Singh Sabarwal on 5 December, 2020
IN THE COURT OF I ADDITONAL CITY CIVIL &
SESSIONS: JUDGE AT BENGALURU (CCH.NO.2)
Dated this 5 th day of December 2020.
O.S. No.1656/2012
Present :- Sri. Jaishankar. B.Sc., LL.M .
C/C I Additional City Civil &
Sessions Judge, Bengaluru.
Plaintiff :- Smt. Leela M. Jain,
W/o Sri. Mohanlal D. Jain,
Aged about 56 years,
R/at No.4, Surveyor Street,
Basavanagudi,
Bangalore.
(Rep. by R.B.N., Advocate)
V/s
Defendant :- Sri. Hardev Singh Sabarwal.,
dead by his LR's.,
a) Mrs. Patawant Kaur,
Aged about 62 years,
W/o Late Hardev Singh Sabharwal,
R/o No.D-605,
Wilson Manor Apartments,
13th Cross, Wilson Garden,
Bangalore -27.
b) Mrs. Jaspreet Sethi,
Aged about 38 years,
D/o Late Hardev Singh Sabharwal,
R/o No.D-605,
Wilson Manor Apartments,
13th Cross, Wilson Garden,
Bangalore -27.
c) Mrs. Baneet,
Aged about 34 years,
D/o Late Hardev Singh Sabharwal,
R/o No.7, A-Block,
Shubham Karoti Apartment,
Awade Mala,
Ichal Karanji - 416115,
Maharastra.
(Rep. by S.B., Advocate)
Date of Institution of the 27.02.2012
suit:
Nature of the Suit (suit for
pronote, Suit for declaration Suit for Ejectment
and possession, Suit for
injunction, etc.):
Date of the commencement
of recording of the 10.01.2013
Evidence:
Date on which the
Judgment was pronounced: 05.12.2020
Total duration: Year/s Month/s Day/s
08 09 08
J U DG M EN T
The plaintiff has filed this suit for ejectment, arrears
of rent, maintenance charges and for damages.
2. The brief averments of the plaint are as follows :-
That the plaintiff is the owner of the suit schedule
property. The defendant was a tenant of the vendor of the
plaintiff by name Sri. Chandru Durgadas Godhwani on a
monthly rent of Rs.9,500/-. The rents were being credited
to the account of the said person. The plaintiff has
purchased the suit schedule property from Sri. Chandru
Durgadas Godhwani under the registered sale deed dated
18.11.2011. As on that date, the defendant was in arrears
or rent. As per the terms of the sale deed, the plaintiff has
to collect the entire arrears of rent from the defendant.
Since there was a typographical error in the schedule of
the said sale deed, a rectification deed was also executed.
Pursuant to the sale deed and the rectification deed, the
katha of the suit schedule property was transferred to the
name of the plaintiff and she has been paying taxes every
year. By letter dated 18.11.2011, the vendor of the
plaintiff intimated the defendant to attorn the tenancy in
favour of the plaintiff. Subsequently on 09.12.2011, power
of attorney holder of the plaintiff met the defendant and
requested him to make payment. However, the defendant
failed to make any payment. By her letter dated
16.12.2011, the plaintiff called upon the defendant to pay
the entire arrears of rent from August 2008 till November
2011 and requested to pay the maintenance charges for
the month of November 2011. The said letter was
personally handed over to the defendant and the same is
acknowledged by him. The defendant has paid a sum of
Rs.1,61,500/-. After giving deduction to the said payment,
the defendant is still due in a sum of Rs.1,99,500/-
towards arrears of rent. She was not interested to
continue the tenancy of the defendant. Hence, she issued
a notice on 07.01.2012 terminating the tenancy of the
defendant and called upon him to deliver vacant
possession of the suit schedule premises within 15 days
from the date of receipt of the notice. The defendant
deliberately avoided the notices sent by RPAD and courier.
The possession of the schedule property by the defendant
is unlawful and the defendant is liable to pay damages at
market rate of Rs. 20,000/- per month. The defendant is
due in a sum of Rs.2,50,350/- towards arrears of rent,
maintenance charges and damages. Hence, the suit.
3. The defendant has appeared through his Counsel
and has filed his written statement and has contended as
follows:-
That the suit is not maintainable in the eye of law
and or on facts. It is false that the plaintiff is the land
owner of the suit schedule property and he is the tenant.
He is the tenant under Sri. Chandru Durgadas Godhwani
and it is false that the sale deed has been executed in
favour of the plaintiff. It is not correct that monthly rent
is Rs.9,500/-. But, it is true that the rent is credited to
the account of the owner. He is not aware and does not
admit that the suit schedule property is conveyed to the
plaintiff under the registered sale deed. He does not
admit that he is due in arrears of rent and he does not
admit the termination of tenancy and execution of the
sale deed and the rectification deed. The plaintiff has to
prove that the katha has been changed to her name. The
averments made in paras 4 and 5 of the plaint are all
false. It is true that the plaintiff by a letter dated
16.12.2011, plaintiff called upon to pay the arrears of
rent from August 2008 till 2011 and also the
maintenance charges. The averments made in paras 7
and 8 are not admitted. The plaintiff at no point of time
issued termination notice and no such notice is received
by him. It is false that he has deliberately avoided the
notice. The plaintiff is not supposed to terminate his
tenancy, without being the owners of the flat. It is false
that the plaintiff has pasted the notice on the suit
schedule premises. It is false that he is liable to pay rent
at the market rate of Rs. 20,000/-. There is no valid
termination of the tenancy. The calculation made in para
9 of the plaint are false and a vexatious claim is made by
the plaintiff. The Court fee paid is improper and the
valuation made is not correct. There is no cause of action
to file the suit. He was inducted as a tenant in the suit
schedule premises by the owner Sri. Chandru Durgadas
Godhwani fixing rent of Rs.9,000/- per month including
maintenance by collecting an advance of Rs.90,000/-.
The rent was deposited in bank as agreed every month.
However, as the owner is residing abroad, he used to
come once in year or so, used to collect the rent, in the
event of arrears and sometimes advance rents. About 6
years back, the rent was enhanced to Rs.9,500 per
month and the maintenance charge of Rs. 1,400/- was
agreed to be inclusive. The owner met him on 26-11-2011
and collected the rent upto June-2012. The owner had
not told him during his last visit about the sellling of the
flat to anybody much less to the plaintiff. Till date, the
owner has neither written letter nor given intimation
about selling of the flat in favour of the plaintiff. The
owner has not come to India after 26-7-2011. He would
not have collected the rent upto June-2012 if he had sold
the flat. The averments in the plaint regarding selling the
flat, execution of rectification deed and authorising the
plaintiff to collect future rent and ask for arrears of rent
are all false. The plaintiff has filed a false and frivolous
suit to have unlawful gain. He is not the lawful owner of
the suit schedule property. On all these grounds, he has
prayed for dismissal of the suit.
4. Basing on the pleadings of the parties, the
following issues have been framed in this case:-
I SSU E S
1.Whether plaintiff proves ownership over suit schedule property?
2. Whether plaintiff proves termination of tenancy of defendant over suit schedule property?
3. Whether plaintiff proves arrears of rent due from defendant as pleaded in the plaint? If so, what amount?
4. Whether plaintiff is entitled for damages from defendant? If so at what rate and from which date?
5. Whether defendant proves agreed rate of rent of Rs.9,500/- is inclusive of maintenance charges?
6. What order or decree?
5. In order to prove her case, the plaintiff has examined her Power of Attorney Holder as P.W.1 and got marked 19 documents as Ex.P.1 to P.19. The defendant died during the pendency of the suit and his Lrs were brought on record. They have examined their Power of attorney holder as D.W.1. He has got marked the Power of attorney as Ex.D.1.
6. I have heard the arguments of both sides and perused the entire materials on record. Having regard to the arguments heard and the materials on record, I answer the above issues as here under :-
Issue No. 1 :- In the Affirmative.
Issue No. 2 :- In the Affirmative.
Issue No. 3 :- In the Affirmative. The
plaintiff is entitled for Rs.
2,24,200/- .
Issue No. 4 :- In the Affirmative. At the
rate of Rs. 15,000/- per
month from the date of suit.
Issue No. 5 :- In the Negative.
Issue No. 6 :- As per final order for the
following
R E AS O NS
7. Issue No.1 :- It is the case of the plaintiff that she is the owner of the suit schedule property which is a flat situated at Wilson Garden, Bangalore. She had purchased the same under the registered sale deed dated 18.11.2011 from Sri. Chandru Durgadas Godhwani. Since there was a typographical error, a rectification deed is also executed in her favour. The plaintiff has examined her Power of Attorney holder as P.W.1 and he has reiterated the above facts in his affidavit filed in lieu of his examination in chief. He has given evidence on the strength of the GPA marked as Ex.P.1. He has also got marked the original sale deed dated 18.11.2011 as Ex.P.2 and the rectification deed dated 19.11.2011 as Ex.P.3. The defendant has admitted in his written statement that Sri. Chandru Durgadas Godhwani was the owner of the suit schedule property. But he has denied the ownership of the plaintiff. He has contended that the said Chandru Durgadas Godhwani has not executed any sale deed in favour of the plaintiff and it was not communicated to him. The LR's of the defendant have examined their Power of Attorney holder as D.W.1 and he has given evidence of the strength power of attorney marked as Ex.D.1. He has also stated in his affidavit that the plaintiff is not the owner of the suit schedule property. As such, the defendant is seriously disputing the ownership of the plaintiff over the suit schedule property. But, the plaintiff has produced the original sale deed executed in her favour on 18.11.2011 and also the rectification deed which is executed on 19.11.2011 to prove her ownership over the suit schedule property. Further, the plaintiff has also got marked the tax paid receipt and katha endorsement as Exs.P.7 and P.12. The said documents show that the katha of the suit schedule property has been changed to the name of the plaintiff and she is paying the taxes.
8. Further, P.W.1 has also got marked the letter written by the plaintiff to the Secretary of the Wilson Manor Apartment Owners Association and also a receipt regarding payment of maintenance charges to Association on 21.01.2012 and they have been marked as Exs.P.8 and P.9. As such, these documents show that after purchase of the suit schedule property on 18.11.2011, the plaintiff has intimated the same to the Association of the Apartments as per Ex.P.8.
9. Further, the plaintiff has also produced the copy of the letter issued by her vendor Sri. Chandru Durgadas Godhwani to the defendant giving information regarding the sale of the suit schedule property and it has been marked as Ex.P.4. The postal receipt and also postal acknowledgement is enclosed with the said letter and the said documents reveal that on the date of the execution of Ex.P.2 sale deed, the owner has intimated the same to the defendant. Though the defendant has contended in his written statement that he has not received the said letter, Ex.P.4 and the postal receipt and acknowledgement clearly show that it has been sent by the owner to the defendant and it is served.
10. Further, in Ex.P.2 sale deed also it is clearly mentioned that the defendant is a tenant in the suit schedule property and the plaintiff is entitled to receive rents from him. The plaintiff has also produced the letter written by her to the defendant on 16.12.2011 along with postal receipt, courier receipt and postal acknowledgment. The same have been marked as Exs. P.5, P.5(a), P.5(b) and P.6. The said documents also reveal that the plaintiff is also intimated the defendant about the purchase of the suit schedule property. As such, Ex.P.1 to P.9 and P.12 clearly show that the plaintiff has purchased the suit schedule property and she has become the owner of the same and the purchase is intimated to the defendant. P.W.1 who is the husband of the plaintiff has should well in cross examination and he has clearly stated about the purchase of the suit schedule property by the plaintiff. Though, he was cross examined at length, denying the execution of sale deed in favour of the plaintiff, nothing is elicited to disbelieve his evidence. Though, it is suggested in his cross examination by the defendant that Chandru Durgadas Godhwani shown in Ex.P.2 and the Chandru Durgadas Godhwani residing in Spain are two different persons, he has denied the same. No documents or evidence is placed on record by the defendant to prove that the person who has executed Ex.P.2 sale deed is not the person who leased the property to them. They have also not summoned said Sri. Chandru Durgadas Godhwani and examined him to prove the same. There is nothing on record to disbelieve the sale deed and rectification deed marked as Exs.P.2 and P.3. Even the katha made out in the name of the plaintiff is not challenged by any person. As such, the materials on record clearly show that the plaintiff is owner of the suit schedule property. Hence, I answer this issue in the affirmative.
11. Issue No.2 :- The plaintiff has alleged in the plaint she was not interested to continue the tenancy of the defendant and hence she issued notice on 07.01.2012 terminating the tenancy of the defendant calling upon him to deliver the vacant possession of the suit schedule property within 15 days from the date of receipt of the notice. The defendant deliberately avoided the notices sent by RPAD and courier. P.W.1 has also reiterated the same in his evidence. He has got marked the copy of the notice as Ex.P.13. The postal receipts are marked as Exs.P.13(a) and (b) and postal covers are marked as Exs.P.14 and P.15. It can be seen that the notices have been sent to the defendant's business address and also to the address of the suit schedule property. The notice sent as per Ex.P.15 has been returned with the shara "Not Claimed". The address shown on the said postal cover is that of the suit schedule property. As such, it is sent to the proper address of the defendant and he should have received it. The shara that it is not claimed clearly show that the defendant has avoided the notice. Further, the son in law of the defendant who is examined as D.W.1 has admitted in his cross examination at page 7, para 3 that it is true that his father in law was a businessman and he was carrying business in the name and style of Jas Enterprises situated at Lakkasandra Extension, Bangalore. Ex.P.14 postal cover and notice has been sent to the said address and it is returned as "Refused". As such, Ex.P.14 postal cover clearly show that the notice has been sent to the business address of the defendant and he has refused to receive the same. Exs.P.14 and P.15 clearly show that the defendant has deliberately avoided the notice issued as per Ex.P.13. The plaintiff has clearly stated that the tenancy is terminated by issuance of the said notice. P.W.1 has also reiterated the same. No suggestion is made during the cross examination of P.W.1 denying issuance of Ex.P.13 notice. As such, the tenancy of the defendant is properly terminated by the plaintiff by issuance of notice as per Section 106 of Transfer Property Act. Hence, I answer this issue in the affirmative.
12. Issues No.3 and 5 :- Since these points are interconnected, they are taken up together for discussion to avoid repetition. The plaintiff has alleged in the plaint that the defendant is due arrears of rent from18.11.2011 and he is liable to pay a sum of Rs.2,24,200/- till 05.02.2012 at Rs.9,500 per month. P.W.1 has also stated the same in his evidence and he has got marked the bank account extracts of Sri. Chandru Durgadas Godhwani and they are marked as Exs.P.10 and P.11. In the said documents, it can be seen that the rents are shown to be paid at Rs.9,000/- per month till 2006 and at Rs.9,500/- per month from 2008. The defendant has admitted in his written statement that when he was inducted as tenant of the suit schedule property during the year 2000 the rent was Rs.9,000/- per month. He has also stated that the rent was enhanced to Rs.9,500/- per month about 6 years back. The suit is filed in the year 2012. As such, it has to be held that the defendant has admitted that the rent fixed was Rs.9,500/-. Though, the defendant has contended that he is not liable to pay maintenance charges, no documents are produced by him to show that the maintenance charges have to be paid by the owner. It is common that the maintenance charges has to be paid by the tenant, unless there is an agreement contrary to that. Further, no suggestion is made during the cross examination of P.W.1 that the maintenance charges is included in the rent. As such it has to be held that the defendant has failed to prove that the maintenance charges are included in the rent.
13. Further, the plaintiff has contended that the rent is not paid from 18.11.2011 and the defendant is due in a sum of Rs.2,24,200/- towards the same. In the sale deed marked as Ex.P.2 it is clearly mentioned at page 3 Sl.No.7 that the tenant is not paying the rent. It is recited that the possession is delivered to the plaintiff and the tenant to attorn the tenancy in favour of the plaintiff. As such, right to recover the arrears of rent has been given to the plaintiff. As per Section 109 Transfer Property Act also the transferee of the property is entitled to receive the arrears of rent due before the transfer. Though, the defendant has contended that he has paid the rents up to date till June 2012 and the owner has collected the same, he has not produced any documents to prove that the rent is paid up to June 2012. As such, it has to be held that the defendant is due arrears of rent as pleaded in the plaint. Hence, the plaintiff is entitled for recovery of a sum of Rs.2,24,200/- towards arrears of rent. The defendant has failed to prove that the rent is inclusive of maintenance charges. Hence, I answer issue No.5 in the negative and issue No.3 in the affirmative and hold that the plaintiff is entitled for recovery a sum of Rs.2,24,200/- towards arrears of rent.
14. Issue No.4 :- As observed above, the materials on record clearly show that the plaintiff is the owner of the suit schedule property and she has terminated the tenancy of the defendant with respect to the suit schedule property by issuance of statutory notice as per Section 106 of Transfer Property Act. Since the defendant is continued to be in possession of the suit schedule property, he is liable to pay the damages. The plaintiff has alleged in the plaint that the prevailing market rent of the suit schedule property is Rs.20,000/- per month. The defendant has denied the same. It is an admitted fact that the defendant was paying rent at Rs.9,500/- per month. The defendant has admitted the same in his written statement. the suit is filed in the year 2012. As such, considering the said facts, it is just and proper to direct the defendant to pay the damages to the plaintiff at Rs.15,000/- per month from the date of the suit till the defendant hand over the vacant possession of the suit schedule property. Hence, I answer this issue in the affirmative and hold that the LR's of defendant are liable to pay damages at Rs.15,000/- per month from the date of the suit till the realization.
15. Issue No.6 :- As observed above, materials on record clearly show that the plaintiff has purchased the suit schedule property and she has become the owner of the same from the date of purchase. In the decision relied on by the Counsel for the plaintiff reported in (1996) 4 SCC 697 in which in the case of Taraknath and Sushil Chandra Dey it is held that "when the sale deed is a registered conveyance for valid consideration, the purchaser gets absolute right and the tenant is bound by the title and the decree for eviction has to be granted". In another decision relied on by the Counsel for defendant reported in AIR 2006 Kant 262 in the case M/s Maniram Industrial Enterprises, Bangalore Vs. B.S. Sathya kumar it is held that "a tenant has no right to continue in occupation of tenant premises for ever by paying enhanced rent periodically. Landlord can exercise his right to terminate the tenancy in accordance with law". In view of the principle laid down in the above decisions and findings on issues No.1 to 5, the plaintiff is entitled for decree of eviction and recovery of arrears of rent. The plaintiff is also entitled for recovery of maintenance charges and damages as sought in the plaint. Hence, the following is made:-
O R DE R The suit of the plaintiff is decreed with costs.
The LR's of the defendant are directed to quit, vacate and deliver the vacant possession of the suit schedule property to the plaintiff within 3 months from the date of this order.
The plaintiff is entitled to recover a sum of Rs.2,50,387/- from the LR's of defendant towards the arrears of rent,maintenance charges and damages till 25.02.2012. The LR's of defendant are directed to pay the said amount within 3 months from the date of this order. If they fail to pay the same within the said period, they are liable to pay interest at the rate of 9 % per annum on the said amount till payment.
The plaintiff is also entitled to recover Rs.15,000/- per month from the LR's of defendant towards use and occupation of the suit schedule property from the date of suit till they vacate and handover the vacant possession of the suit schedule property to the plaintiff.
Office is directed to draw decree accordingly.
(Dictated to the Stenographer, typed by her directly on computer, corrected and then pronounced by me in the open court on this the 5 th day of December 2020.) (Jaishankar) C/C I Addl.City Civil & Sessions Judge, Bengaluru.
A N N E XU RE WITNESSES EXAMINED FOR THE PLAINTIFF :-
PW.1 :- Mohanlal D. Jain DOCUMENTS MARKED ON BEHALF OF PLAINTIFF:-
Ex.P.1 GPA
Ex.P.2 Original sale deed dated 18.11.2011
Ex.P.3 Original rectification deed dated
19.11.2011
Ex.P.4 Letter dated 18.11.2011
Ex.P.5 Letter dated 16.12.2011
Exs.P.5(a) & Courier receipt and Postal receipt
5(b)
Ex.P.6 Postal acknowledgement
Ex.P.7 Tax paid receipt
Ex.P.8 Office copy of letter dated 08.12.2011
Ex.9 Receipt dated 21.12.2012
Exs.P.10 & 11 Statement of Bank account Ex.P.12 Katha endorsement Ex.P.13 Office copy of legal notice dated 07.01.2012 Exs.P.13(a) & Postal receipts
(b) Ex.P.14 Returned postal cover with endorsement Ex.P.14(a) Legal Notice Ex.P.15 Returned postal cover with endorsement not claimed Ex.P.15(a) Legal Notice Exs.P.16 to Three positive photographs P.18 Ex.P.19 C.D. WITNESSES EXAMINED FOR THE DEFENDANT:-
DW.1 :- Jasmit Singh DOCUMENTS MARKED ON BEHALF OF THE DEFENDANT:-
Ex.D.1 Special Power of Attorney
(Jaishankar)
C/C I Addl.City Civil & Sessions
Judge, Bengaluru.