Bangalore District Court
Smt. Vidyavathi vs Sri Rizwan Pasha on 7 October, 2016
C.R.P. 67] Government of Karnataka
Form No. 9
(Civil) TITLE SHEET FOR JUDGEMENTS IN SUITS
Title Sheet for
Judgment in IN THE COURT OF THE SMALL CAUSES AT BANGALORE
Suits
PRESENT: Basavaraj Chengti., B.Com.,LL.B.,(spl)
XVI ADDL. JUDGE,
Court of Small Causes,
BANGALORE.
Dated this the 7th day of October 2016
S.C.No.479/2014
PLAINTIFF: 1. SMT. VIDYAVATHI
W/o M.Omprakahsh
Aged about 60 years
2. SRI.M.RAJASHEKAR
S/o late Sanjeevaiah Shetty
Aged about 87 years
(plaintiff no.2 died
Represented as legal heirs as
Plaintiff no.1, 3, 4)
3. SMT.SUVRATHA
W/o C.S.Gopalakrishna
Aged about 54 years,
4. SMT. BHANUMATHI
W/o D.P Sathyam
Aged about 50 years,
2nd, 3rd and 4th plaintiffs are
Represented by their Power of
Attorney Holder,
SCCH-14 2 SC No.479/2014
Smt.Vidhyavathi
W/o M.Omprakasha
All are presently R/at No.14,
Pampa Mahakavi road,
Shankarpuram, Basavanagudi,
Bangalore-04.
(By pleader Sri MVB)
Vs.
DEFENDANT : SRI RIZWAN PASHA
S/o A.R.Abdul Rahman
Aged about 44 years
M/s SAR Fruits
Shop No.11,
No.110, Sethurao street,
City Market,
Bangalore-560 053.
(By pleader Sri CSR)
Date of institution of the suit: 08.04.2014
Nature of the suit (suit on pronote,
suit for declaration and possession Ejectment
suit for injunction, etc.,):
Date of the commencement of 11.09.2014
recording of the evidence:
Date on which the Judgment 07.10.2016
was pronounced:
Year/s Month/s Days
Total duration: 02 05 27
Additional Judge
SCCH-14 3 SC No.479/2014
JUDGMENT
This is a small cause suit for ejectment and arrears of rent.
2. Brief averments of the plaint are as under:
The plaintiff no.1 is the GPA holder of the plaintiff no.3 and 4. Smt.M.R.Vijalakshmi @ Adilakshmi W/o M.Rajashekar was the owner of the immovable property bearing No.110 (New No.103) situated at Police road, Bangalore measuring 8341.50 sq.ft with specific boundaries comprising ground and first floor building. There are 16 commercial shops in the ground floor and two shops are located in first floor with electricity connection. The title of the same was acquired by her by means of registered Will dated 13.08.1992 executed by her mother viz., Smt.P.C Sundramma W/o late Sri.P.C Chandrashekara Shetty @ P.C.Shetty vide document bearing No.141/1992-93. The property is acquired by her is hereinafter referred as SCHEDULE 'A' PROPETY'. She got registered her name in the Khata maintained by the appropriate authority under the provisions of the Karnataka Municipal Corporation Act, 1976 and its Rules. The said Smt. M.R Vijayalakshmi died on 14.01.2013 intestate. The plaintiffs are the successors and legal heirs for her entire estate including the schedule A property. The plaintiff no.2 is the husband of Smt.M.R.Vijayalakshmi and the plaintiff no.1, 3, 4 are her children. The khata of the suit schedule property is stands in the name of the plaintiff no.1,3 and 4. Meanwhile, Bangalore Metro SCCH-14 4 SC No.479/2014 Rail Corporation Ltd., has acquired certain portion of schedule 'A' property. The defendant is the tenant under Smt.M.R Vijayalakshmi in portion of schedule A property i.e., Shop No.11, RCC roofed building measuring 14.10' X 11.70' totally measuring 164.97 Sq.ft having electricity supply is hereinafter referred to as the schedule 'B' property i.e., suit schedule property.
The defendant is carrying fruits business in the name and style of M/s S.A.R Fruits in the schedule property. In the month of February, 2013, the plaintiffs have approached the defendant i.e., after the death of said Smt.Vijayalakshmi and demanded to vacate the premises within 60 days to enable them to construct new commercial building to accommodate their children to carry their traditional business of silk saris. The defendant has requested 6 months time to vacate the premises. The plaintiffs sympathetically agreed and granted time till September, 2013 and demanded arrears of rent and further directed the defendant to pay rent @Rs.1,000/- rent per month. In the month of December,2013, the plaintiff no.2 has received notice from Hon'ble High Court of Karnataka in W.P no.51540-51549/2013 wherein his name is found as the defendant no.5. The said writ petitions were filed by the defendant along with other tenants and he has also filed OS No.7077/09 before Hon'ble Prl.City Civil Court, Bangalore on 06.11.2009 for permanent injunction against late M.R.Vijayalakshmi and others restraining them from interfering with the peaceful possession and enjoyment of the suit schedule property. On receipt of the court notice, said Vijayalakshmi appeared and filed her defence by way of written statement SCCH-14 5 SC No.479/2014 wherein she made a statement that, suit was filed based on false and fabricated statements and denied the payment of rental advance of Rs.10,000/-, but she admitted rent of Rs.1,000/-. Further, she demanded arrears of rent of Rs.21,000/- as on April, 2010 i.e., from January-2008. After the trial, the said suit was decreed on 26.06.2012. The defendant intentionally and deliberately withhold the information of pendency of suit i.e., OS No.7077/2009 when the plaintiff's approached him in February-2013. The plaintiffs on receipt of the notice from the Hon'ble High Court got issued a notice in compliance of Sec.106 of the Transfer of Property Act through their advocate on 03.02.2014. Same was sent through RPAD. The defendant duly received the same on 06.02.2014. In the notice, the plaintiffs have demanded the defendant to quit the premises within one month from the date of receipt of the notice and to pay arrears of rent of Rs.55,000/- from March 2008 till the date of notice. Meanwhile the Hon'ble High Court of Karnataka has disposed off WP No.51540- 51549/2013 on 12.02.2014. The defendant got issued untenable reply notice dt.18-20/02/2014 through his advocate. Adjacent to the suit schedule property the Metro construction is going on. Due to use of heavy machinery digging underground canals, the schedule property got damaged, developed cracks in the wall and ceilings. Since, it is old building and it is dilapidated condition, it has become un-usable property. Thereby with an intention of putting up new construction in the schedule property, the plaintiffs approached the planning authority for sanction of plan and license. On 23.03.2014 the BBMP authority has issued an SCCH-14 6 SC No.479/2014 endorsement directing them to take immediate steps to demolish the building since the same is in dilapidated condition. After termination of contract, the defendant without having any legal right, is still in possession of the suit schedule property. Therefore, the defendant bound to pay damages on the prevailing market rate of rent with interest for compensating the inconvenience and harassment being faced by them due to not vacating and not handing over the vacant possession of the suit schedule property by the defendant. The defendant is in arrears of rent of Rs.55,000/- till Feb.2014. Hence, the plaintiffs have filed this suit for a judgment and decree directing the defendant to vacate and deliver the vacant possession of the suit schedule property and to pay arrears of rent of Rs.55,000/- to them.
3. In response to the suit summons, the defendant has appeared before the Court through his counsel and filed written statement denying the averments of the plaint as false. He has contended that the suit is not maintainable either in law or on facts, that property bearing new no.110 had old no.113 and it stood in the name of N.Devarajamma, that the property in his possession bears new no.102 (old no.120) and new no.110 (old no.113) situated in Police road, Bangalore, that description of property given by the plaintiffs is not fully correct and identity of the property in his possession involves complicated questions which can not be gone into by this Court, that alleged Will executed by Smt. Sundramma does not relate to the schedule property. He has admitted the death of Smt.M.R.Vijayalakshmi, but he has disputed that the plaintiff no.1, 3 and 4 are her only SCCH-14 7 SC No.479/2014 successors and legal heirs. He has admitted as to letting out of the property in commercial building in his favour, but he has contended that the said property is part of property bearing new no.110 (old no.113) and not of property bearing new no.103 (old no.117), that the property standing in the name of the plaintiffs has already been acquired by Metro Rail Corporation and the plaintiff no.2 has already received compensation in this behalf in terms of several crores, that measurement of property shown by the plaintiffs is incorrect, that there is no shop number to the property in his possession, that he is not inducted as licensee, but as a monthly tenant, that relationship between M.R.Vijayalakshmi and himself in respect of property bearing new no.103 and old no.117 is not that of licensor and licensee, but that of landlord and tenant prior to acquisition of said property by Metro, that boundaries given by the plaintiffs are fictitious, that the plaintiffs have not given details of property acquired by Metro and of property remaining. He has admitted as to filing of WP No.51540 to 51549/2013 before Hon'ble High Court by the tenants and as to filing of original suits by the tenants and passing of decree in those suits and contended that the suits are not related to present suit schedule property, but in respect of property acquired by Metro, that he has not received any legal notice as alleged by the plaintiffs and as such, the suit is not maintainable for want of mandatory notice, that the pleading of the plaintiffs is inconsistent and they can not breathe hot and cold at the same time. He has denied that the suit schedule property is in dilapidated condition and it is unsafe for human habitation and BBMP has issued demolition SCCH-14 8 SC No.479/2014 notice to the plaintiffs and jural relationship of tenant and landlords is not in existence between him and the plaintiffs, that the claim for arrears of rent has become time barred, that he is not liable to vacate and hand over the vacant possession of the premises under his occupation as the property is altogether different from the one indicated in the plaint, that he is a monthly tenant in respect of a different property and not a licensee, that he is not in arrears of rent and on the other hand, he has regularly paid rents earlier in cash to M. Rajashekar who was not in habit of issuing rent receipts and later under money order and the same has been duly acknowledged by the plaintiffs, that Smt. M.R.Vijayalakshmi has received rents by way of money order during her life time, that there was no cause of action to file the suit, that proper Court fee is not paid, that this Court has no jurisdiction to try the suit, that the plaintiffs ought to have filed comprehensive suit for declaration and possession by paying proper Court fee on market value. Hence, he has sought for dismissal of the suit with exemplary cost.
4. During evidence, the plaintiffs have examined the plaintiff no.1 as PW-1 and got marked documents as Ex.P-1 to 19. The defendant has examined himself as DW-1 and got marked documents as Ex.D-1 to 13.
5. Heard arguments. The counsel for the plaintiffs has relied upon following rulings:
SCCH-14 9 SC No.479/20141. ILR 2008 KAR 1493: SriShamarao Rukamanna Talwar Vs., Smt., Suvarna
2. 2010(3) KAR.L.J 619: Basavaraj Vs., Puttaraju (since deceased) by his LRs & Anr., The counsel for the defendant has relied upon following rulings:
1. ILR 2007 KAR 3309(DB) : Sarojamma W/o Narasaiah Vs., K.M Venkatesh
2. Mysore L.J 1972(1) P : M/S V.M.K Marimuthu Vs., State of Mys., I have gone through the said rulings and perused the records.
6. The points arise for my consideration are:
1. Whether the plaintiffs have proved that the defendant is their tenant in respect of suit schedule property?
2. Whether the plaintiffs have proved that the tenancy of the defendant is duly terminated?
3. Whether the plaintiffs have proved that the defendant is in arrears of rent of Rs.55,000/-?
4. Whether the plaintiffs are entitled for the relief sought for?
5. What order or decree ?
7. My findings are as under:
POINT NO.1 TO 4: AFFIRMATIVE POINT NO.5 : AS PER FINAL ORDER SCCH-14 10 SC No.479/2014 REASONS
8. POINT NO.1 TO 4: These points are interlinked and hence, I have taken them together for common discussion. The plaintiffs have relied upon oral evidence of PW-1 and produced Ex.P-1 to 19 in corroboration. The defendant has placed reliance on his own oral evidence and got marked Ex.D-1 to 13 in support of his oral testimony.
9. PW-1:Smt.Vidhyavathi has reiterated the averments of the plaint and stated that she and other plaintiffs are the owners of the suit schedule property, that the defendant is their tenant in respect of said property, that his tenancy is terminated by issuing quit notice, that the defendant has not paid rent and he is in arrears of rent of Rs.55,000/-, that in spite of termination of tenancy, the defendant did not quit, vacate and deliver the vacant possession of the suit schedule property. Hence, she has sought for passing decree for ejectment of the defendant from the suit property with decree for arrears of rent. In cross examination, she has admitted that property bearing old no.110 and new no.113 is not their property, that property bearing no.102 and portion of property no.103 were acquired by BMRCL and compensation was paid in that regard, that Metro has issued notice to the defendant and others for getting the property vacated and all the tenants have challenged the said notice under writ petitions before Hon'ble High Court, that the defendant is continued to be the tenant in the same premises in which his father was tenant, that the defendant has replied the notice of the plaintiffs, that the plaintiffs have SCCH-14 11 SC No.479/2014 received Rs.7,00,00,000/- pertaining to acquisition of property no.102, that the father of the defendant was inducted in the suit schedule property as tenant by Polapalli Naranarayana Trust. She has stated that Naranarayan Trust is their family trust, that tenants under property no.102 were paying rent to said trust, that her father Rajashekar was managing the said trust, that her mother Vijayalakshmi got property measuring 8341 sft in the said building under Will of Sundramma, that the defendant was paying rent to the plaintiffs since 2009 through money order, that Metro has demolished building in property no.102, that Rajashekar was collecting rent on behalf of trust, that property involved in O.S.No.7077/2009 and in this case are one and the same. She has denied the suggestions that the defendant was the tenant under Polapalli Narayana Trust and was paying rent to said trust, that the suit schedule property is of the ownership of Devarajamma, Polapalli Narayana Trust and Vijayalakshmi, that the defendant was having another shop in the building and it was demolished during the time of writ, that after death of his father, the defendant started paying rent to Polepalli Naranarayana Trust, that the defendant is not a tenant under the plaintiffs and he never paid rent to them, that in order to knock off the trust property, the plaintiffs have filed a false case against the defendant by creating documents.
10. DW-1:Rizwan Pasha is the defendant and he has deposed as per his defence taken up in his written statement. He has stated that claim of the plaintiffs is not true, that SCCH-14 12 SC No.479/2014 N.Devarajamma is the owner of property bearing new no.110 and old no.113, that suit schedule property is bearing new no.102( old no.120) and new no.110 (old no.113), that this Court has no jurisdiction to try the matter, that the alleged Will executed by Sundramma does not relate to the suit schedule property, that the property of the plaintiffs has been acquired by Metro Rail Corporation and the plaintiff no.2 has already received compensation in crores, that suit schedule property does not belong to Smt. M.R.Vijayalakshmi. He has stated about filing of original suit and writ petitions and about orders passed therein. He has admitted the service of legal notice dt.11.2.2014 from the plaintiffs and contended that he has issued reply to it, that this Court has no jurisdiction to try the matter, that the plaintiffs are not sure about his status as they used the word licensee at one breath and tenant in other breath, that he is monthly tenant in respect of different property, that he is not in arrears of any rent, but he paid rent regularly, that he was paying rent to Rajashekar who was not in habit of issuing receipts and later, he used to remit rent through money order and same has been duly acknowledged by the plaintiffs, that M.R.Vijayalakshmi has received rent during her life time by way of money order, that suit in the present nature is not maintainable before this Court, that the property in his possession does not belong to the plaintiffs, but it belongs to Smt.Devarajamma. In cross examination, he has stated as under:
"I have not obtained the said property on lease from N. Devarajamma.
It is true to suggest that I was/is not a tenant under Devarajamma.SCCH-14 13 SC No.479/2014
There was no lease agreement between myself and Trust.
It is true to suggest that husband of Vijayalakshmi by name Rajshekar was the respondent No.5 in the said Writ petitions. It is true to suggest that trust property and property of Vijayalakshmi were situated adjacent to each other.
It is true to suggest that Rajshekar was collecting rent from me in respect of suit property.
It is true to suggest that I have produced certain receipts in O.S.No.7077/2009 showing that I have remitted rent to Vijayalakshmi by Money Order.
It is true to suggest that I have mentioned in the said paras of written statement and affidavit that I have remitted the rent to Rajashekhar through money order.
11. The plaintiffs have got marked copy of GPA executed by the plaintiff no.3 and 4 in favour of the plaintiff no.1 and copy of genealogy as Ex.P-1 and 2 which reveal that the plaintiff no.3 and 4 have authorized the plaintiff no.1 to prosecute the matter on their behalf. The plaintiff no.2 is dead. Genealogy discloses that the plaintiff no.1, 3 and 4 are the children of the plaintiff no.2 and Smt. M.R.Vijayalakshmi and have succeeded to their estate. PW-1:
Smt.Vidhyavathi has deposed about relationship between her and the other plaintiffs, between the plaintiffs and Smt.M.R.Vijayalakshmi, about authorization given to her by the SCCH-14 14 SC No.479/2014 plaintiff no.3 and 4. Ex.P-1 and 2 corroborate her evidence. There is nothing on record to disbelieve the same.
12. Copy of Will dt.13.8.1992 is at Ex.P-11. The plaintiffs have produced it to corroborate the evidence of PW-1 regarding their title to the suit schedule property, but the plaintiffs have not examined any attesting witness to prove the Will. Moreover, this Court can not decide the title of the plaintiffs to the suit schedule property. The rulings relied upon by the defendant make it clear that this Court has got limited power and jurisdiction. The Court has to see that whether there exists any jural relationship of landlord and tenant between the parties and whether such relationship stood terminated or not.
13. Ex.P-12 and 15 are death certificates which reveal that Smt.M.R.Vijayalakshmi died on 14.1.2013 and her husband Rajashekar died on 20.7.2014. The defendant has not disputed their death. He has expressly and impliedly admitted his acquaintance with Smt.M.R.Vijayalakshmi and Rajashekar and his dealings with them. It is an admitted fact that the defendant and other tenants filed W.P.No. 51540 to 51549/2013 against BMRCL, the plaintiff no.2 and others challenging the notice issued by BMRCL, that the defendant filed O.S.No.7077/2009 against Smt.M.R.Vijayalakshmi and BMRCL for the relief of permanent injunction. Copy of plaint, of written statement and of Judgment in O.S.No.7077/2009 are at Ex.P-8 to 10, whereas copy of order and SCCH-14 15 SC No.479/2014 copy of writ petitions in W.P.No.51540 to 51549/2013 are at Ex.P- 16 and 17.
14. Ex.P-13 and 14 are Khata certificate and Khata extract which reveal that the plaintiff no.1, 3 and 4 are the khata holders of property bearing new no.103 (old no.117). They are named as owners of the said property in municipal records. BBMP has issued notice to them on 28.3.2014 as per Ex.P-3 directing them to demolish the building in property bearing new no.103. These documents corroborate the evidence of PW-1 that the plaintiffs are the landlords of the suit schedule property which is situated in property bearing new no.103, Police road, Bangalore. Except bare denials, nothing is elicited from PW-1 to disbelieve her evidence. Such denials are not sufficient to hold that the suit schedule property is situated in property bearing new no.102 (old no.120) and new no.110 (old no.113).
15. Copy of quit notice, postal receipt, acknowledgement and reply notice are at Ex.P-4 to 7 and they disclose that the plaintiffs have got issued legal notice to the defendant on 3.2.2014, terminated his tenancy in respect of the suit schedule property, asked him to quit, vacate and deliver the vacant possession of the same and demanded him to pay arrears of rent of Rs.55,000/-, that the notice was sent to the defendant by RPAD and it was duly served upon the defendant on 6.2.2014, that the defendant has issued reply on 18/20.2.2014 denying his liability to pay the arrears of rent and to deliver the vacant possession of the property.
SCCH-14 16 SC No.479/2014The defendant has denied the service of notice in his written statement, but he has admitted as to receipt of legal notice and issuance of reply to it while under examination. Hence, I hold that the notice at Ex.P-4 was duly served on the defendant on 6.2.2014 who got issued reply as per Ex.P-7.
16. Ex.P-18 and 19 are copies of money order receipts and of eMO which reveals that rent @Rs.1,000/- was paid to Smt.M.R.Vijayalakshmi till February 2011. PW-1 has deposed that the said receipts are pertaining to the payments made by the defendant in respect of suit schedule property, that the defendant has not paid rent @Rs.1,000/- since January 2008 amounting to Rs.55,000/- till February 2014. But, Ex.P-18 and 19 disclose that the rent is paid up to January 2011. The said receipts are contradictory to the evidence of PW-1 as to arrears of rent. If the payments under Ex.P-18 and 19 are considered as rent in respect of suit schedule property, then arrears of rent till March 2014 i.e., as on the date of suit comes to Rs.38,000/-.
17. The defendant has produced copy of weight and measurement details, of declaration, of fee receipt, of electricity bill, of APMC receipt, copy of telephone registration card which are marked as Ex.D-1 to 5, 9 and 10. The said documents reveal that the defendant is running his fruits business under the name and style as "SAR Fruits", that the electricity meter is standing in the name of Abdul Rehaman, the father of the defendant. Copy of notice of BMRCL and sketch at Ex.D-6 and 7 disclose that BMRCL SCCH-14 17 SC No.479/2014 has issued notice to several persons seeking objections for acquisition of property for Metro project. The notice further reveals that property of Narayana Trust bearing property no.102 was under acquisition. Ex.D-13 copy of notice confirms that property bearing no.102 was of Naranarayana Trust. The said notices corroborate the evidence of PW-1 that property in new no.103 was not acquired by Metro.
18. The defendant has obtained information from BBMP under RTI Act in respect of property bearing no.110 by making application. Copy of application and information furnished by BBMP are at Ex.D-11. The said information discloses that property bearing new no.110 (old no.113) was of the ownership of Smt.Devarajamma who bequeathed the said property in favour of G.Krishnamurthy and Smt.Seethalakshmamma vide Will dt.21.6.1973, that the property came to be mutated in the name of Narasimhamurthy S/o Krishnamurthy on the basis of gift deed executed by Smt.Seethalakshmamma and it was protested by the other children of Krishnamurthy. DW-1 has stated that the suit schedule property belongs to Smt.Devarajamma and the plaintiffs have nothing to do with it. But, it is to be noted that admittedly the said Smt.Devarajamma was the owner of property bearing new no.110 and old no.113. The case of the plaintiffs is that the suit schedule property is situated in property bearing new no.103 and old no.110. The defendant has not produced any document to show that he or his father has occupied the suit schedule property from Smt.Devarajamma and they were paying her rent. The SCCH-14 18 SC No.479/2014 documents at Ex.D-11 are insufficient to hold that the suit schedule property is in property bearing new no.110 and old no.113 and it belongs to Smt.Devarajamma. Hence, I disbelieve the pleading and evidence of the defendant that the suit schedule property is of the ownership of Smt.Devarajamma.
19. The defendant has produced copies of rent receipts which are marked as Ex.D-8. On perusal of said receipts, it reveals that the father of the defendant was paying rent to Polepalli Naranarayana Trust in 1975 to 1977, that the receipts of the year 2001 and 2002 do not reveal the name of Polepalli Naranarayana Trust, but the defendant is the person named as tenant in the said receipts and rent is pertaining to the shop situated at property no.103. This goes in favour of the plaintiffs who have contended that the suit schedule property is situated in property bearing new no.103. The said receipts at Ex.D-8 and the copies of receipts at Ex.P-18 and 19 collectively reveal that the defendant was paying rent to Rajashekar and Smt.Vijayalakshmi. The said fact is categorically admitted by the defendant in his written statement, in reply notice and in his chief affidavit. Portions of the same are as under:
Written statement:
"This defendant was not inducted as a licensee but as a monthly tenant. The relationship of the defendant with late Smt.M.R Vijayalakshmi in respect of property bearing New No.103 and Old No.117 is not that of licensor or licensee but that of landlord and tenant prior to the said portion being acquired for the said metro purposes".SCCH-14 19 SC No.479/2014
"This defendant is not due or is not in any arrears of rents as alleged in the plaint under reply and on the other hand regularly he has paid rents earlier in cash to Sri.M Rajashekar who was not in the habit of issuing rent receipts and later under money order and the same has been duly acknowledged by the plaintiffs.
During the lifetime of Smt.M.R Jayalakshmi she has received rents by way of money order and some of the receipts have been made available to the honourable Civil Court and the High Court in the said proceedings referred to in the plaint but the same has been totally lost sight of by the plaintiffs obviously only to make unrighteous claims in this behalf".
Reply notice:
"However, even during the lifetime of late M.R Vijayalakshmi, the fourth of your clients' Sri.M Rajashekar used to collect the rents from all the tenants in person including my client but was never in the habit of issuing rent receipts. My client having occupied the premises for sufficient number of years and in view of the good and cordial relationship my client had with the said M.Rajashekar my client used to pay rents regularly without fail. However, since lately the said M.Rajashekar due to illness is not able to come near the tenanted premises to collect the rents and in view of the same the rents were sent by my client by way of money order and the same has been received by Smt.M.R Vijayalakshmi during her lifetime and thereafter the fourth of your clients' under acknowledgment. The date of death of Smt.M.R Vijayalakshmi is not within the personal knowledge of my client".SCCH-14 20 SC No.479/2014
"My client is not due or is not in any arrears of rents as alleged in the legal notice under reply and on the other hand regularly he has paid rents earlier in cash to Sri M Rajashekar who was not in the habit of issuing rent receipts and later under money order and the same has been duly acknowledged by your clients".
Chief affidavit:
DW.1 "I am not in arrears of rents as alleged in the plaintiffs under reply and on the other hand regularly he has paid rents earlier in cash to Sri M.Rajashekar who was not in the habit of issuing rent receipts and later under money order and the same has been duly acknowledged by the plaintiffs. During the lifetime of Smt.M.R Jayalakshmi she has received rents by way of money order and some of the receipts have been made available to the honourable Civil Court and the High Court in the said proceedings referred to in the plaint but the same has been totally lost sight of by the plaintiffs obviously only to make unrighteous claims in this behalf".
Sec.58 of the Evidence Act reads as under:
"Facts admitted need not be proved. -- No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the Court SCCH-14 21 SC No.479/2014 may, in its discretion, require the facts admitted to be proved otherwise than by such admissions".
The above provision makes it clear that admitted facts need no further proof. In this case, the defendant has denied the title of the plaintiffs to the suit schedule property, existence of jural relationship of tenant and landlord between him and the plaintiffs, termination of his tenancy. He has disputed the identity and location of suit schedule property and contended that the suit schedule property is not situated in property bearing new no.103, but it is situated in property bearing no.102 and 110 and is of ownership of Smt.Devarajamma. But, his above admissions clearly reveal that the suit schedule property is in property bearing new no.103 and the defendant has paid its rent to Rajashekar, to Smt.Vijayalakshmi and to the plaintiffs. Rent receipts at Ex.P-18 and 19 and at Ex.D-8 confirm the same. The said admissions of the defendant and documentary evidence support the oral evidence of PW-1. On the contrary, there is no corroboration to the evidence of DW-1 that the suit schedule property is different from the property claimed by the plaintiffs and Smt.Devarajamma is the owner of the same. If the defendant is not the tenant under Smt.Vijayalakshmi and Rajashekar, then question of making them as parties in O.S.No.7077/2009 and in W.P.No.51540 to 51549/2013 does not arise. Though, the property involved in O.S.No.7077/2009 is of different measurement and boundaries, but there is nothing on record to believe that the said property was acquired by Metro and it was different and distinct from suit schedule property. There is no corroboration to the evidence of SCCH-14 22 SC No.479/2014 DW-1 as to boundaries and measurement of property shown in plaint in O.S.No.7077/2009. Admission as to payment of rent by the defendant in favour of the plaintiffs and their parents is sufficient to hold that the defendant is tenant under Smt.Vijayalakshmi in respect of suit schedule property. He continued in the suit schedule property as tenant under the plaintiffs after death of Smt.Vijayalakshmi. Since, the defendant is tenant under the plaintiffs, he is debarred from denying their title as per Sec.116 of Evidence Act. Hence, I hold that the plaintiffs are the landlords and the defendant is tenant under them in respect of suit schedule property. The plaintiffs have used words 'licence' and 'licensee' in legal notice at Ex.P-4, but that itself is not sufficient to disbelieve the case of the plaintiffs. Mere denial of title and jural relationship of landlord and tenant do not oust the jurisdiction of this Court as held in ruling reported in ILR 2011 KAR 229:(Abdul Wajid Vs A.S Onkarappa). In this case, the defendant has denied the title of the plaintiffs to the suit schedule property and existence of jural relationship of tenant and landlord between him and the plaintiffs, but he has failed to produce any evidence to support his contention. On the contrary, he has admitted the payment of rent to the plaintiffs in respect of suit schedule property and such admission goes in favour of the plaintiffs. Hence, I hold that the plaintiffs have succeeded to prove that they are the landlords and the defendant is their tenant in respect of suit schedule property.
20. The defendant has admitted that he was regular in paying rent. PW-1 has stated that rate of rent was Rs.1,000/- p.m., SCCH-14 23 SC No.479/2014 and the defendant was in due of Rs.55,000/- towards rent till February 2014. Since, rent is payable every month, the tenancy of the defendant is monthly tenancy which is terminable by 15 days prior notice. Ex.P-4 to 7 disclose that the plaintiffs have issued termination notice to the defendant on 3.2.2014 and it was duly served on him on 6.2.2014. 15 days period expired on 21.2.2014. The tenancy of the defendant stood terminated on 21.2.2014. Moreover, the defendant has issued reply as per Ex.P-7 denying the title of the plaintiffs which also terminates his tenancy as per Sec.111(g) of T.P.Act. However, Ex.P-18 and 19 disclose that the defendant has paid rent up to January 2011. Therefore, the defendant was in due of Rs.38,000/- as on the date of suit. There is no evidence regarding payment of rent by the defendant to the plaintiffs after filing of this suit. The defendant has not vacated and delivered the vacant possession of the suit schedule property even after termination of his tenancy. Hence, he is liable to be ejected from the suit schedule property. Further, the defendant is liable to pay Rs.38,000/- to the plaintiffs towards arrears of rent. The plaintiffs have not sought for damages. Hence, I am of the opinion that the plaintiffs are entitled for the relief in part and I answer the points as above.
21. POINT NO.3: In view of discussion and findings, I proceed to pass the following :
ORDER The suit filed by the plaintiffs is decreed with cost.SCCH-14 24 SC No.479/2014
The defendant is directed to quit, vacate and deliver the vacant possession of the schedule premises in favour of the plaintiff within 2 months from the date of this order.
The defendant is direct to pay arrears of rent of Rs.38,000/- to the plaintiffs.
Draw decree accordingly.
(Dictated to the Stenographer, directly on computer and then corrected by me and pronounced in the open court, on this the 7th day of October 2016.) (Basavaraj Chengti) XVI ADDL.JUDGE, Court of Small Causes, BANGALORE.SCCH-14 25 SC No.479/2014
SCHEDULE 'A' PROPERTY All that piece and parcel of the immovable property bearing No.110 (New No.103) situated at police road, Bangalore-53, measuring 8341,50 Sq.ft bounded on:
East by ; Sethurao Street West by : Property belongs to Naranarayana Trust North by : Timber Abdul Lathif and Waqf Possessed property: and South by : Police road.
SCHEDULE 'B' PROPERTY All that piece and parcel of the immovable property in schedule A property i.e., Shop No.11 (for the purpose of identification self number is given), RCC roofed building measuring 14.10 x 11.70 feet totally measuring 164.97 Sq.ft, having electricity connection and bounded on:
East by ; Sethurao Street West by: Remaining portion of schedule 'A' Property, North by : Another portion of schedule A property South by: Another portion of schedule A property XVI ADDL.JUDGE, Court of Small Causes, BANGALORE.SCCH-14 26 SC No.479/2014
ANNEXURE Witnesses examined on behalf of the plaintiff :
PW-1 Smt.Vidhavathi Witnesses examined on behalf of the defendants: NIL.
Ex.P1 - Certified copy of power of attorney Ex.P2 - Certified copy of affidavit of M. Rajashekhar Ex.P3 - Certified copy of Notice dated 28.03.2014 issued by BBMP.
Ex.P4 - Copy of Notice issued to the defendant.
Ex.P5 - Postal Receipt
Ex.P6 - Acknowledgment
Ex.P7 - Reply given by defendant.
Ex.P8 - Certified copy of plaint in OS No.7077/2009
Ex.P9 - Certified copy of written statement in OS
No.7077/2009
Ex.P10 - Certified copy of Judgment and decree in OS
No.7077/2009
Ex.P11 - Certified copy of Will dated: 13.08.1992
Ex.P12 - Death Certificate of Vijayalakshmi
Ex.P13 - Khatha Certificate
Ex.P14 - Khatha Extract
Ex.P15 - Death Certificate of Rajashekhar
Ex.P16 - Certified copy of order in WP No.51540 to
51549/13
Ex.P17 -Synopsis
Ex.P18 -Copy of receipt
Ex.P19 -Tracking details
Documents exhibited on behalf of the plaintiffs:
Defendant's Rizwan Pasha
Ex.D1 - Certified copy of Licence issued by weight and
Measurement department
Ex.D2 - Certified copy of Licence issued by weights
SCCH-14 27 SC No.479/2014
and measurement departments.
Ex.D3 - Certified copy of receipt dated: 24.02.2011
Ex.D4 - Certified copy of electricity bills (8 in nos.)
Ex.D5 - Certified copy of fee receipt
Ex.D6 - Certified copy of notice issued by Metro Rail
Corporation
Ex.D7 - Certified copy of sketch
Ex.D8 - Certified copy of Rent receipts (12 in nos.)
Ex.D9 - Certified copy for telephone registration card
Ex.D10 - Certified copy Market fee receipt
Ex.D11 - Information given by BBMP under RTI Act
including documents furnished under RTI Act (77 pages) (Ex.D11 is marked subject to objection) Ex.D12 - Certified copy of Cross-examination of Smt. Vidyavathi in HRC. No.55/14 Ex.D13 -Certified copy of notice dated: 10.10.2013 issued by K.I.D.B. XVI ADDL.JUDGE, Court of Small Causes, BANGALORE.SCCH-14 28 SC No.479/2014
Judgment pronounced in open court vide separate judgment.
ORDER The suit filed by the plaintiffs is decreed with cost.SCCH-14 29 SC No.479/2014
The defendant is directed to quit, vacate and deliver the vacant possession of the schedule premises in favour of the plaintiff within 2 months from the date of this order.
The defendant is direct to pay arrears of rent of Rs.38,000/- to the plaintiffs.
Draw decree accordingly.
XVI ADDL.JUDGE, Court of Small Causes, BANGALORE.SCCH-14 30 SC No.479/2014
DECREE S.C.C.H.NO.14 IN THE COURT OF SMALL CAUSES COURT, AT BANGALORE.
S.C.No.479/2014 PLAINTIFF: 1. SMT. VIDYAVATHI W/o M.Omprakahsh Aged about 60 years
2. SRI.M.RAJASHEKAR S/o late Sanjeevaiah Shetty Aged about 87 years (plaintiff no.2 died Represented as legal heirs as Plaintiff no.1, 3, 4)
3. SMT.SUVRATHA W/o C.S.Gopalakrishna Aged about 54 years,
4. SMT. BHANUMATHI W/o D.P Sathyam Aged about 50 years, 2nd, 3rd and 4th plaintiffs are Represented by their Power of Attorney Holder, Smt.Vidhyavathi W/o M.Omprakasha All are presently R/at No.14, Pampa Mahakavi road, Shankarpuram, Basavanagudi, Bangalore-04.
(By pleader Sri MVB) Vs. DEFENDANT : SRI RIZWAN PASHA S/o A.R.Abdul Rahman Aged about 44 years SCCH-14 31 SC No.479/2014 M/s SAR Fruits Shop No.11, No.110, Sethurao street, City Market, Bangalore-560 053.
(By pleader Sri CSR) CLAIM: Suit filed on prays for directing defendant to quit and vacate the vacant possession of the schedule premises.
This suit coming on` for final disposal before Sri.Basavaraj Chengti ., XVI Addl. Judge, CSC, Bangalore, in the presence of Sri/Smt Advocate, for the plaintiff and Sri/Smt Advocate, for the defendant.
ORDER The suit filed by the plaintiffs is decreed with cost.
The defendant is directed to quit, vacate and deliver the vacant possession of the schedule premises in favour of the plaintiff within 2 months from the date of this order.
The defendant is direct to pay arrears of rent of Rs.38,000/- to the plaintiffs.
Given under my hand and the seal of the Court this Day of 2016.
REGISTRAR, COURT OF SMALL CAUSES, BANGALORE.
SCCH-14 32 SC No.479/2014MEMORANDUM OF COST INCURRED IN THIS SUIT By the Plaintiff Defendant Court fee on plaint Court fee on power Court fee on exhibits Service of process + Postal charges Commissioner's fees Pleaders fee _________________________ Total of Rs. __________________________ Amount payable by the defendant to the plaintiff is Rs.
SCHEDULE 'A' PROPERTY All that piece and parcel of the immovable property bearing No.110 (New No.103) situated at police road, Bangalore-53, measuring 8341,50 Sq.ft bounded on:
East by ; Sethurao Street West by : Property belongs to Naranarayana Trust North by : Timber Abdul Lathif and Waqf Possessed property: and South by : Police road.SCCH-14 33 SC No.479/2014
SCHEDULE 'B' PROPERTY All that piece and parcel of the immovable property in schedule A property i.e., Shop No.11 (for the purpose of identification self number is given), RCC roofed building measuring 14.10 x 11.70 feet totally measuring 164.97 Sq.ft, having electricity connection and bounded on:
East by ; Sethurao Street West by: Remaining portion of schedule 'A' Property, North by : Another portion of schedule A property South by: Another portion of schedule A property Decree Drafted Scrutinised by REGISTRAR, COURT OF SMALL CAUSES, BANGALORE Decree Clerk SHERISTEDAR