Bangalore District Court
Sri.Rajesh K.Bathija vs Sri.Abdul Hameed Sikandar on 2 June, 2016
IN THE COURT OF THE XXV ADDL. CITY CIVIL & SESSIONS
JUDGE
AT BANGALORE CITY - CCH No.23.
Dated this the 2nd DAY OF JUNE, 2016
PRESIDING OFFICER
PRESENT: Sri. Sadananda M. Doddamani.,
B.A.,L.LB.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
O.S.No.7354/2006
PLAINTIFF/S: 1. Sri.Rajesh K.Bathija,
S/o Sri.K.S.Bathija,
Aged about 34 years,
R/at No.5/3, 'Ambica Nilaya',
15th main, Lakkasandra Hosur road,
Bengaluru - 560 030.
(By Sr i.SS, Advocate)
--Vs.---
DEFENDANT/S: 1. Sri.Abdul Hameed Sikandar,
Major,
Father's name not known,
To the plaintiff,
Proprietor K.G.N.Tourist,
No.19/1, Albert Victor Road,
Kalasipalyam,
Bengaluru - 560 002.
(By Sri.PRS, Advocate)
2 O.S.No.7354/2006
Date of institution of suit: 09.08.2006
Nature of suit: Ejectment
Date of commencement
of recording of evidence: 22.03.2010
Date on which the judgment
was pronounced: 02.06.2016
Duration of the suit: year/s month/s day/s
09 09 24
* * * * *
JUDGMENT
This is a suit filed by the plaintiff to direct the defendant to quit and deliver vacant physical possession of the suit schedule property, for arrears of rent and damages.
2. In brief the case of the plaintiff is as under:
That the plaintiff is the absolute owner of non-residential shop premises bearing No.19/1, and its adjacent shop premises bearing No.19/2, Albert Victor Road, Div.No.42, Bengaluru. The plaintiff acquired the said shops under a sale deed dated 22/7/2004, from the previous owner V.Krishnamurthy and others. Out of the said two shops, the 3 O.S.No.7354/2006 defendant is in occupation as a tenant of shop premises bearing No.19/1, measuring east to west 10 feet and north to south 23 feet. The defendant is a tenant in respect of plaint schedule premises on a monthly rent of Rs.1,000/- (Rupees One thousand only). It is further stated that the tenancy of the defendant commences from the 1st day of every English Calander month and ends on the last day of the said month.
The defendant conducts transport business as a Proprietor of his concern, under the name and style KGN Tourist.
3. It is further stated that the plaintiff caused the notice dated 10/12/2004 to the defendant by a registered post informing him that he had acquired the plaint schedule property by virtue of a registered sale deed dated 22/7/2004. It is further stated that he informed the defendant to pay all the future rents to him along with arrears of rent amounting to Rs.4,000/- (Rupees Four Thousand only) till the end of 2004. The defendant received the said notice and caused a reply dated 1/1/2005. In the reply the defendant has made false and untenable claims. It is further stated that the 4 O.S.No.7354/2006 defendant after issue of reply has not paid any rent to him and after he acquired the plaint schedule property, the defendant has not paid any rents to him inspite of his personal request on several occasions. It is further stated that he caused another legal notice dated 5/6/2006 to the defendant, terminating the tenancy of the defendant in respect of the suit schedule premises with effect from 30/6/2006. It is further stated that he demanded the defendant to pay arrears of rent in respect of the plaint schedule premises amounting to Rs.22,000/- (Rupees Twenty Two Thousand only), till the end of May 2006. The said notice was sent to the defendant under registered post acknowledgment due, as well as under
certificate of posting. The notice sent under the registered post is returned with an endorsement on the envelope "Intimation delivered on 7/6/2006 and not claimed". The notice sent under certificate of posting is not returned and in the normal circumstances of postal transaction, the notice sent to the defendant will have been served on him on 7/6/2006. The notice sent by registered post has not been claimed at the post office or from the post man even after 5 O.S.No.7354/2006 intimation, which amounts to refusal and the notice has to be deemed as served on the defendant.
4. It is further stated that even after the receipt of the legal notice dated 5/6/2006, terminating the tenancy of the defendant, he has failed to vacate the plaint schedule premises. Subsequent to 30/6/2006, the defendant is in occupation of the plaint schedule premises unauthorisedly. It is further stated that the plaintiff is also the owner of shop premises bearing No.19/1, which is adjacent to plaint schedule premises on the western side. The plaintiff runs business in running contract carriage vehicles and he intends to enlarge his business. The plaintiff requires the plaint schedule premises for demolish of the same along with his own shop, with the intention of constructing a new building thereon. It is further stated that the defendant has not paid any advance or premium to him and he is in arrears of rent in a sum of Rs.23,000/- till the end of June 2006, etc. On these grounds and among other grounds he has come up with the present suit and accordingly prays for to decree the suit. 6 O.S.No.7354/2006
5. The summons sent by this court was duly served upon the defendant and he has appeared before the court through his counsel and filed his detailed written statement by denying all the plaint averments.
6. The defendant in his written statement contended that the suit of the plaintiff is not maintainable as because there is no relationship of land lord and tenant between himself and the plaintiff. When the plaintiff is not the owner of the suit schedule property, the question of issuance of legal notice and further informing regarding the purchase of the suit schedule property from the defendants landlord and further informing the defendant to pay all the future and arrears to the plaintiff does not arise at all. It is further stated that the plaintiff has no right to terminate his tenancy. So termination notice issued by the plaintiff is bad in law and not binding on him. It is further stated that the plaintiff mis- leading to allege that the suit schedule premises is in occupation of the defendant on monthly tenancy. The suit 7 O.S.No.7354/2006 schedule premises was leased by V.Krishnamurthy in favour of defendant in the year 1988 and the said lease was agreed to be perpetual in nature and the owner of the property had expressly presented his consent in that regard. Since the owner V.Krishnamurthy was unable to get the possession even after terminating the defendant's tenancy in the year 1990 and when the defendant pleaded his adverse title, he had expressed his desire to alienate the property to the defendant and accordingly offered him. The defendant has accepted the offer and consequently there is a concluded contract between V.Krishnamurthy and defendant in respect of the suit schedule premises. It is further contended that the owner of the suit schedule property had informed that the actual execution of the sale deed could be deferred till the same pre- requisite arrangements are made to suit his financial needs.
7. It is further stated that the plaintiff was personally aware of the agreement of sale in favour of the defendant, inspite of that he obtained the alleged sale deed with intend to defeat the legitimate right of the defendant. The defendant 8 O.S.No.7354/2006 having entered into the earlier agreement is entitled to enforce his right to purchase the property and the plaintiff is a subsequent purchaser is bound by all the obligations of his owner. The alleged sale deed is subject to the right of the defendant and does not convey any right in plaintiff's favour. It is further stated that the execution of the alleged sale deed is not admitted by the defendant. It is further stated that the defendant is under no contractual statutory or legal obligation to attorn tenancy in respect of the suit schedule premises in favour of the defendant. The defendant is in possession of the suit schedule property from 1988 till today un-interruptedly and without obstruction from the owner of the suit schedule property and he is in possession on the basis of his independent right and is not obliged to pay any rents to the plaintiff. It is further stated that in the absence of lease deed or rent agreement, in between the plaintiff and the defendant, mere purchase of premises cannot by any stretch of imagination be equivalent to an agreement of tenancy. When such being the case, the suit of the plaintiff is liable to be dismissed.
9 O.S.No.7354/2006
8. It is further stated that when there is no relationship of landlord and tenant between the defendant and the plaintiff, section 106 of Transfer of Property Act does not attract. The plaintiff has to file a suit for possession by paying the court fee on the market value, as such the mere suit for ejectment is not maintainable. It is further stated that the suit of the plaintiff is also not maintainable, as it is barred by limitation. The defendant is in possession of the suit schedule property more than the statutory period of 12 years from 1988 and till today he is in possession as a owner, but not as a tenant under plaintiff with the knowledge of the erstwhile owner. It is further stated that the defendant is personally enjoying the suit schedule property by his knowledge since 18 years. The defendant having absolute right over the suit schedule property and the same is hostile title against the plaintiff, the plaintiff has no right over the suit schedule property. The defendant is neither obstructed nor dispossessed by the plaintiff at any point of time from anybody and the erstwhile owner has not demanded the defendant to 10 O.S.No.7354/2006 deliver the suit schedule property and the plaintiff is a trespasser of the suit schedule property and he has interfered by filing this suit.
9. It is further stated that the defendant has instituted the suit for declaration in O.S.No.5417/2010 which is pending consideration on the ground that he has been in occupation of the suit schedule property since 1/4/1988 and the earlier owner of the suit schedule property the plaintiff vendor V.Krishnamurthy had assured the defendant of permanency in tenure and had further assured the plaintiff of conveying of the suit schedule property to the defendant, since he was looking after the other properties belonging to V.Krishnamurthy and the defendant had paid to V.Krishnamurthy a sum of Rs.3,00,000/- and he has been assented to by him and he has been holding over to the knowledge of him continuously, upon law by ascertaining title as permanent tenant for more than 12 years and under the Doctrine of Adverse Possession has acquired non-ejectable right. The plaintiff vendor V.Krishnamurthy retracked on the 11 O.S.No.7354/2006 assurance held out to the defendant and instituted eviction proceedings before court of Small Causes in HRC No.1696/1991. The said petition got dismissed on the ground that the court had no jurisdiction and subsequently no proceedings were initiated to recover vacant possession from the defendant. It is further stated that the plaintiff's vendor V.Krishnamurthy thinking revealing the true state of affairs executed sale deed in favour of the plaintiff and the plaintiff herein did not take any steps either to attorn the tenancy or to regularize the relationship with the defendant and over a period of time, the defendant has perfected the right of permanent tenure by adverse possession with respect to tenancy rights, etc. On these grounds and among other grounds he sought for the dismissal of the suit.
10. The learned counsel for the parties filed their written arguments.
11. The learned counsel for the plaintiff in support of his case has relied upon the following decisions: 12 O.S.No.7354/2006
(1) 2007(1) KLJ 378(DB) (2) AIR 2016 Raj 18, (3) AIR 2016 (NOC) 121 (KAR) (4) AIR 2007 Cal 8, (5) AIR 1924 Cal 168 (6) AIR 1006 AP 362 (7) ILR 2013 Kar 4435 (8) AIR 1973 page 175
12. On the basis of the above rival pleadings of the parties, my learned predecessor-in-office has framed the following as many as 6 issues and one additional issue :
(1) Whether the plaintiff proves that the defendant is a tenant under him in respect of the suit schedule property on a monthly rent of Rs.1000/-?
(2) Whether the plaintiff proves the valid termination of the tenancy of the defendant in respect of the suit schedule property by issuing a legal notice dated 5/6/2006?
(3) Whether the plaintiff proves that the defendant is a chronic defaulter in the 13 O.S.No.7354/2006 payment of rents and he was due rents of Rs.23,000/- till the end of June 2006?
(4) Whether the plaintiff is entitled for mesne profits as prayed for ?
(5) Whether the plaintiff is entitled for a decree of possession as prayed for ?
(6) What order or decree?
Addl Issue (1) Whether the defendant proves that he has perfected the right of permanent tenure by the adverse possession with respect to the tenancy right ?
13. The plaintiff in order to establish his case, he himself got examined as PW1 and got marked as many as 10 documents from Ex.P1 to Ex.P10 and closed his side evidence. The defendant in order to establish his case, he himself got examined as D.W.1, and got marked two documents as Ex.D1 and Ex.D2 and closed his side evidence.
14. My answer to the above said issues are as under:
Issue No.1 : In the Affirmative
14 O.S.No.7354/2006
Issue No.2 : In the Affirmative
Issue No.3 : In the Affirmative
Issue No.4 : Shall be determined in a
separate enquiry
Issue No.5 : In the Affirmative
Addl.Issue No.1 : In the Negative
Issue No.6 : As per the final order
for the following:
REASONS
15. Issue No.1 & 2: Both these issues are
interconnected, therefore they have been taken together for common consideration and discussion in order to avoid repetition of facts and also for the sake of convenience.
16. The plaintiff in order to establish his case, he himself got examined as PW1 and filed his detailed affidavit by way of examination-in-chief, wherein he reiterated all the averments made in the plaint and further on oath stated before the court that he is the absolute owner of non- residential shop premises bearing No.19/1 and its adjacent shop premises bearing No.19/12. He further stated that he 15 O.S.No.7354/2006 acquired the said shops under registered sale deed dated 22/7/2004 from the previous owner V.Krishnamurthy and others. He further stated that out of the said two shops, the defendant is a tenant of plaint schedule premises on a monthly rent of Rs.1,000/-. He further stated that the defendant is doing transport business as a Proprietor under the name and style K.G.Tourist at the plaint schedule premises and the tenancy is from month to month. He further stated that he caused notice to the defendant on 10/12/2004 by registered post with acknowledgment due informing him that he had acquired the plaint schedule property by virtue of sale deed dated 22/7/2004 and informed the defendant to pay all the future rents to him along with arrears of rent amounting to Rs.4,000/-. He further stated that the defendants gave reply to the said notice on 1/1/2005 and after he acquired the suit property several times personally requested the defendant to pay arrears of rent, but he did not pay the same. He further stated that he caused another notice on 5/6/2006 to the defendant terminating his tenancy in respect of the suit schedule property with effect from 16 O.S.No.7354/2006 30/6/2006 and also demanded the arrears of rent amounting to Rs.22,000/- till the end of May 2006. The notice was sent through registered post with acknowledgment due and under certificate of posting, but the registered post was returned with a shara "Intimation given and not claimed". The notice sent through under Certificate of Posting is not returned and the same was sent to the correct address of the defendant, as such it is a deemed service under law. He further stated that even after receipt of legal notice dated 5/6/2006 terminating his tenancy, he has failed to vacate the plaint schedule premises, as such, subsequent to 30/6/2006, the occupation of the plaint schedule premises by the defendant is unauthorized. He further stated that the defendant is in due a sum of Rs.23,000/- till the end of June 2006. In support of his case, he got marked as many as 10 documents. Ex.P1 is the legal notice dated 10/12/2004, Ex.P2 is the reply notice dated 1/1/2005, Ex.P3 to 6 are the office copies of legal notice dated 5/6/2006, postal receipt, returned registered postal cover and COP, Ex.P7 is the certified copy of the sale deed executed in favour of plaintiff, Ex.P8 is the copy of order in 17 O.S.No.7354/2006 HRC No.185/1991, Ex.P9 is the certified copy of evidence in O.S.No.5417/2014, Ex.P10 is the copy of judgment in HRC No.1696/1991. So in view of his above evidence and document he prays for to decree the suit.
17. The defendant in order to establish his case, the power of attorney holder of the defendant got examined as DW1 and filed his affidavit by way of examination-in-chief, wherein he reiterated all the averments made in the written statement and further on oath stated before the court that there is no relationship of landlord and tenant between the plaintiff and defendant. He further stated that the suit schedule premises was agreed to be perpetual in nature and the owner of the property has expressly presented his consent in this regard. It is further stated that since the owner V.Krishnamurthy was unable to get the possession even after termination of the defendant in the year 1990 and when the defendant pleaded his adverse title, he had expressed his desire to alienate the property to the defendant and accordingly offered him and the defendant has accepted the 18 O.S.No.7354/2006 offer and consequently there is a concluded contract between V.Krishnamurthy in respect of the suit schedule premises. He further stated that the owner of the suit schedule property had informed that the actual execution of the sale deed could be deferred till the same pre-request arrangements are made to suit his financial needs. He further stated that the plaintiff was personally aware of the agreement of sale in favour of defendant, but inspite of that he has obtained the alleged sale deed with an intention to defeat the legitimate right of the defendant. He further stated that the defendant had entered into the earlier agreement. As such he is entitled to enforce his right to purchase the property and the plaintiff as a subsequent purchaser is bound by all the obligations of his owner. So he stated that the alleged sale deed does not convey any right in favour of plaintiff.
18. He further stated that the defendant is not under contractual or legal obligation to attorn the tenancy in respect of the suit schedule premises. The defendant is in possession of the suit schedule property from 1998 till today 19 O.S.No.7354/2006 uninterruptedly and without obstruction from the owner of the suit schedule property and he is in possession of the suit schedule property on the basis of his independent right, as such he has not obliged to pay any rents to the plaintiff. He further stated that absolutely there is no lease deed or rent note in between the plaintiff and defendant. When such would be the case, the suit of the plaintiff is not maintainable as because there is no relationship of landlord and tenant. He further stated that the plaintiff has to file suit for possession by paying court fee and the mere suit for ejectment is not maintainable. He further stated that the suit of the plaintiff is also barred by limitation. He further stated that the defendant is in possession of the suit schedule property more than the statutory period of 12 years from 1998 till today and he is in possession of the suit schedule property as the owner, not as a tenant under the plaintiff with the knowledge of the erstwhile owner. He further stated that the defendant filed suit for declaration in O.S.No.5417/2007 which his pending consideration and he has been in occupation of the suit schedule property since 1/4/1998 and the erstwhile owner of 20 O.S.No.7354/2006 the suit schedule property had assured defendant of permanency in tenure and further assured him of conveying the suit schedule property to the defendant since he was looking after the other properties belonging to V.Krishnamurthy. He further stated that the defendant had paid Rs.3,00,000/- to V.Krishnamurthy and he had been asserted and had been holding over to the knowledge of him continuously, openly by asserting title as permanent tenant for more than 12 years under the Doctrine of Adverse Possession has acquired non-ejectable right.
19. He further stated that the plaintiff's vendor V.Krishnamurthy however re-tracked on the assurance held out to defendant and instituted eviction proceedings before the Court of Small Causes in HRC No.1696/1991 and the said petition got dismissed on the ground that the court had no jurisdiction and subsequently no proceedings were initiated to recover vacant possession from the defendant. He further stated that V.Krishnamurthy without disclosing the true facts executed sale deed in favour of the plaintiffs and the plaintiffs 21 O.S.No.7354/2006 did not take any steps to attorn the tenancy or regularize the relationship with defendant.
20. He further stated that the plaintiff is not the absolute owner of the suit schedule premises and the document produced by him does not disclose that he is the absolute owner of the suit schedule premises. He further stated that no revenue entries stood neither in the name of plaintiff nor in the name of V.Krishnamurthy at any point of time, which clearly shows that the plaintiff is not the absolute owner of the suit schedule property and is not entitled to seek the relief of ejectment against the defendant. He further stated that the defendant had paid Rs.1,00,000/- in cash to V.Krishnamurthy in consideration of receiving of that amount the said V.Krishnamurthy assured the defendant that he should continue in possession of the suit schedule property without any interference. He further stated that the plaintiff or V.Krishnamurthy had not issued notice of termination to the defendant and the plaintiff has no right to demand for ejectment nor demanding for rents from the defendant. It is 22 O.S.No.7354/2006 further stated that the defendant is in occupation of the suit schedule premises without any interference from the plaintiff nor from V.Krishnamurthy at any point of time. In support of his case, he got marked two documents. Ex.D1 is the Special power of attorney, Ex.D2 is the certified copy of the settlement deed dated 28/7/1957. So in view of his above oral and documentary evidence he prays for to dismiss the suit.
21. The learned counsel for the plaintiff in his written arguments contended that the plaintiff is the absolute owner of non-residential shop premises bearing No.19/1 and its adjacent shop bearing No.19/2 and the defendant is tenant in one of the shop premises bearing No.19/1, i.e., plaint schedule property on a monthly rent of Rs.1,000/- and the tenancy is month to month. It is further stated that after purchasing the suit schedule property by the plaintiff he caused legal notice to the defendant on 10/12/2004 by registered post informing him about the purchase of the suit schedule property and also informed him to pay all the future rents along with arrears of rent amounting to Rs.4,000/-. He further stated that the 23 O.S.No.7354/2006 defendant gave reply to the said notice by denying all the contents of notice and he did not paid any rents to the plaintiff.
22. He further contended that the plaintiff caused termination notice on 5/6/2006 to the defendant terminating his tenancy in respect of the suit schedule property with effect from 30/6/2006 under registered post with due intimation and also under certificate of posting and also demanded him to pay arrears of rent amounting to Rs.22,000/-. He further stated that the notice sent through RPAD was returned with shara "Intimation given and not claimed and the notice sent under certificate of posting was sent to the correct address of the defendant, as such it is a deemed service under law. He further contended that after 30/6/2006 the occupation of the defendant in respect of the suit schedule property is an unauthorized occupation, as such he is entitled for damages from the said date till they handing over of the possession of the suit schedule property. he further contended that the suit schedule premises is required for the plaintiff to run his 24 O.S.No.7354/2006 contract carriage vehicle business and also he intends to enlarge his business by demolishing the plaint schedule premises along with his other shops with an intention of construction a new building. He further contended that the document produced by the plaintiff at Ex.P7, i.e., registered sale deed dated 22/7/2004 clearly shows the plaintiff has acquired the suit schedule property for a valuable consideration from its previous owner V.Krishnamurthy and his family members. He further contended that before purchasing the said suit property the plaintiff was the tenant under V.Krishnamurthy in respect of shop No.19/2 and the defendant was tenant in respect of shop No.19/1. he further contended that the recitals of the sale deed shows that the plaintiff was also in possession of shop No.19/2 at the time of purchase as the tenant and after purchase he continued to be the tenant as owner.
23. He further stated that with regard to shop No.19/1, it is stated in the sale deed that the same is in occupation of the tenant and therefore the purchaser has to be in symbolic 25 O.S.No.7354/2006 possession of the same. He further stated that the evidence given by DW1 in the cross-examination shows that he has admitted that V.Krishnamurthy was the owner of the suit schedule property and the defendant was the tenant under him on a monthly rent of Rs.1,000/-. So also it is contended that the HRC No.1696/1991 at Ex.P8 which was filed by V.Krishnamurthy against defendant seeking possession of the suit schedule property and that the same came to be dismissed on 31/10/1998 as not maintainable in view of section 31 of KRC Act. So what he contended that the above said aspect shows the relationship of landlord and tenant between the vendor of the plaintiff and defendant and it also shows the defendant was tenant in respect of the suit property on a monthly rent of Rs.1,000/-.
24. He further contended that the plaintiff purchased the suit schedule property from V.Krishnamurthy under Ex.P7, as such he has entered into the shoes of his vendor. In view of change of ownership, the plaintiff became the landlord and owner and the defendant became tenant / lessee under 26 O.S.No.7354/2006 the plaintiff. Therefore the plaintiff being the owner of the suit schedule property, acquired all rights to his vendor, as against the lessee to enforce all the rights exercised by his vendor and the lessee by operation of law became the tenant as a new owner. In support of his contention he has relied upon the following decisions:
(1) AIR 2016 (NOC) page 121 (2) AIR 2016 Rajasthan, page 18
25. He further contended that the defendant contended that there was an agreement between him and V.Krishnamurthy and a sum of Rs.3,00,000/- was paid to him as consideration, as such he is having right to enforce the term of the agreement, but no document has been placed before the court to prove the said aspect. So also he contended that though the defendant claims that the vendor of plaintiff assured permanent tenancy in respect of the suit property and claims to perfected his title in respect of the suit schedule property by way of adverse possession, but in order 27 O.S.No.7354/2006 to prove the said aspect he has not produced acceptable evidence.
26. He further contended that the plaintiff intimated defendant by issuing notice on 10/12/2004 with regard to the purchase of the suit schedule property and calling upon the defendant to attorn tenancy in his favour and also for payment of rents to him. He further contended that though the defendant received the said notice instead of complying with the said notice he gave evasive reply. He further contended that when the defendant failed to comply with the notice dated 10/12/2004 the plaintiff caused termination notice on 5/6/2006 to the defendant terminating his tenancy with effect from 30/6/2006 and also called upon to vacate and hand over vacant possession of the suit schedule property and to pay arrears of rent. He further contended that the notice dated 5/6/2006 was sent through registered post with acknowledgment due and under certificate of posting. The notice sent by RPAD was returned with a shara "Intimation given and not claimed". The notice sent through Under 28 O.S.No.7354/2006 Certificate of Posting was sent to the correct address of the defendant and the same is not returned. So he contended that the said service of notice amounting to due service under law.
27. In support of his case, he has relied upon the following decision:
(1) 2007(1) KLJ 378(DB) (2) AIR 2016 Raj 18, (3) AIR 2016 (NOC) 121 (KAR) (4) AIR 2007 Cal 8, (5) AIR 1924 Cal 168 (6) AIR 1006 AP 362 (7) ILR 2013 Kar 4435 (8) AIR 1973 page 175
28. He further contended that though there is no registered lease deed in favour of defendants, but as per section 106 of Transfer of Property Act presumption can be drawn that the defendant is a tenant under plaintiff, as the lease is from month to month and terminable by giving 15 days notice. The evidence on records shows that he has complied the same, as such the termination notice issued by 29 O.S.No.7354/2006 the plaintiff is valid under law. So in view of his above written arguments and decisions, he urged to answer issue No.1 and 2 in the Affirmative.
29. The learned counsel for the defendant in his written arguments contended that the suit of the plaintiff is not maintainable as because there is no relationship of landlord and tenant in between the plaintiff and defendant. It is further contended that even there is no relationship of landlord and tenant between V.Krishnamurthy and defendant as alleged by the plaintiff. In fact V.Krishnamurthy who alleged to have sold the suit schedule property in favour of the plaintiff has no right, title or interest to sell the suit schedule property. he further contended that the very documents produced by the defendant at Ex.D2, i.e., certified copy of the settlement deed shows that the vendor of the plaintiff has no right to sell the suit schedule property in favour of the plaintiff.
30 O.S.No.7354/2006
30. He further contended that neither the plaintiff nor V.Krishnamurthy issued notice to the defendant in accordance with the provisions of section 106 of Transfer of Property Act. So what it is contended that the alleged termination notice is not valid notice and no such termination notice has been received by the defendant. He further contended that V.Krishnamurthy alleged to be the absolute owner of the suit schedule property who transfers the suit schedule property in favour of the plaintiff has not issued notice of attornment to the defendant at any point of time, as such the plaintiff has no right to demand for ejectment nor demanding for rents from the defendants. He further contended that Lakshmi Ammal D/o Chinnaiahraju had executed registered settlement deed dated 29/7/1953 as per Ex.D2. In view of the settlement deed V.Krishnamurthy shall enjoy the suit schedule property during his life time and thereafter the property shall be divided in equal proportions amongst his children born out of lawful wedlock. It should be open to adopt any boy in the manner described by law or customs and the said adopted boy shall be entitled to the reminder estate. So he contended that the 31 O.S.No.7354/2006 clauses of the settlement deed dated 29/7/1953 clearly shows that V.Krishnamurthy the alleged vendor of the plaintiff had limited right to enjoy the suit schedule property over life time. As such V.Krishnamurthy had absolutely no right to execute the sale deed in favour of the plaintiff. When such would be the case, the plaintiff would not get any right, title or interest over the suit schedule property. he further contended that the plaintiff did not chosen to examine V.Krishnamurthy as witness in the present case. He further contended that, that aspect itself shows that there is a defect in the title of the plaintiff. He further contended that when the defendant is not at all the tenant and when there is no relationship of landlord and tenant, the question of paying future rent and arrears of rent does not arise at all. So also when the defendant is not a tenant , the question of termination of tenancy does not arise. So in view of his above arguments, he urged to answer issue No.1 and 2 in the Negative.
31. In the light of the written arguments filed by the respective counsels for the parties I have gone through the 32 O.S.No.7354/2006 records and also the decisions relied upon by the learned counsel for the plaintiff. Admittedly the plaintiff has filed the present suit for ejectment, possession and for damages. The plaintiff claims that he is the absolute owner of non-residential shop premises bearing No.19/1 and 19/2 and the defendant is a tenant in one of the shop bearing No.19/1, i.e., the suit schedule property on a monthly rent of Rs.1,000/-. It is the further contention of the plaintiff that he informed the defendant with regard to purchasing of suit schedule property from V.Krishnamurthy by causing legal notice dated 10/12/2004 as per Ex.P1. It is the contention of the plaintiff that since the defendant failed to comply with the notice, as such he caused termination notice dated 5/6/2006 as per Ex.P3 and he sent the said notice through RPAD and Under Certificate of Posting, as such subsequent to 30/6/2006 the defendant is in occupation of the suit schedule premises unauthorisedly. So he is entitled for damages from the said date till handing over possession of the suit schedule property. 33 O.S.No.7354/2006
32. On the contrary, it is the specific stand of the defendant that there is no relationship of landlord and tenant between himself and the plaintiff. It is the specific stand of the defendant that the vendor of the plaintiff V.Krishnamurthy expressed his desire to alienate the property to him and accordingly offered him and he has accepted the said offer and consequently there is a concluded contract between him and V.Krishnamurthy. So he contended that he had entered into agreement with V.Krishnamurthy and the plaintiff is also very well aware of the agreement to sale executed by V.Krishnamurthy in his favour, as such he is entitled to enforce his right to purchase the property and the plaintiff as the subsequent purchaser is bound by all the obligations of his owner. It is the further contention of the defendant that to Ex.P1 notice he gave suitable reply and the alleged termination notice as per Ex.P3 is not at all received by him. It is the specific stand of the defendant that when there is no relationship of landlord and tenant, the question of terminating the tenancy and demanding future rent or arrears of rent does not arise.
34 O.S.No.7354/2006
33. In the light of the above rival stand, on going through the records, it shows that the plaintiff in proof of his absolute right over the suit property has produced the certified copy of the sale deed dated 22/7/2004 at Ex.P7. Upon perusal of the said document, it clearly shows that he has purchased the suit schedule property from its owner V.Krishnamurthy for a valuable consideration and prior to that plaintiff was also tenant under V.Krishnamurthy in shop No.19/2 and defendant was the tenant in respect of shop No.19/1. After purchase of the suit property the plaintiff continued in possession of shop No.19/2 as owner and also Ex.P7 shows that shop No.19/1, i.e., suit schedule property is in occupation of the defendant as tenant. So it can be said that the purchaser of the suit schedule property is put in symbolic possession of the same. Though the defendant contended that there is no relationship of landlord either between himself and the plaintiff nor between himself and the vendor of the plaintiff V.Krishnamurthy, but the very evidence given by D.W.1 during the course of his cross examination 35 O.S.No.7354/2006 goes to falsify the stand taken by him in his written statement. At this juncture, it would be relevant to state the evidence given by D.W.1 during the course of his cross examination at page No.6, 2nd para, first four lines which reads as under:
zÁªÁ D¹ÛUÉ ªÀÄÆ®zÀ°è PÀȵÀÚªÀÄÆwð ªÀiÁ°ÃPÀgÁVzÀÄÝ CªÀgÀ §½ £ÁªÀÅ ¨ÁrUÉzÁgÀgÁVzÉݪÀÅ, wAUÀ½UÉ gÀÆ.1 ¸Á«gÀ ¨ÁrUÉ PÉÆqÀÄwÛzÉݪÀÅ. 1991gÀªÀgÉUÉ £ÁªÀÅ PÀȵÀÚªÀÄÆwðUÉ ¨ÁrUÉ ºÀt PÉÆqÀÄwÛzÉݪÀÅ.
The above evidence given by D.W.1 clearly goes to show that the defendant is residing in the suit schedule property as a tenant but not as claimed by him. If according to the defendant prior to 1991 he was residing in the suit schedule property as permanent tenant as assured by the vendor of plaintiff V.Krishnamurthy, the question of paying rent in the year 1991 does not arise at all. The said aspect itself goes to falsify the stand taken by the defendant.
34. The defendant contended that the vendor of the plaintiff executed sale agreement and he has consented him to 36 O.S.No.7354/2006 be a permanent tenant in respect of the suit schedule property and he is residing as a permanent tenant since 12 years. So also the defendant contended that he had paid Rs.3,00,000/- to the vendor of the plaintiff V.Krishnamurthy with regard to the above said aspect. Upon perusal of the oral and documentary evidence placed before the court absolutely no acceptable and convincing evidence has been placed before the court in proof of the above stand taken by the defendant. Even the said aspect has been admitted by D.W.1 during the course of his cross examination at page No.6, 2nd para, after four lines which reads as under:
C£ÀAvÀgÀzÀ°è £ÁªÀÅ PÀȵÀÚªÀiÆwðUÉ gÀÆ.3 ®PÀë PÉÆnÖzÀÄÝ CªÀgÀÄ zÁªÁ D¹ÛAiÀÄ°è £ÀªÀÄUÉ SÁAiÀÄA DV EgÀĪÀAvÉ w½¹zÀÝgÀÄ. £ÁªÀÅ PÀȵÀÚªÀÄÆwðUÉ gÀÆ.3 ®PÀë PÉÆnÖzÉÝÃªÉ JAzÀÄ vÉÆÃj¸À®Ä ºÁUÀÆ CªÀgÀÄ £ÀªÀÄUÉ zÁªÁ D¹ÛAiÀÄ°è SÁAiÀÄA DV EgÀ®Ä w½¹zÀÝgÀÄ JAzÀÄ vÉÆÃj¸À®Ä £À£Àß §½ zÁR® E®è . zÁªÁ D¹ÛAiÀÄ£ÀÄß £ÀªÀÄUÉ ªÀiÁgÁl ªÀiÁqÀ®Ä M¦à PÀȵÀÚªÀÄÆwð PÀæAiÀÄ PÀgÁgÀÄ¥ÀvÀæ ªÀiÁrPÉÆnÖzÀÝgÀÄ JAzÀÄ °TvÀ ºÉýPÉAiÀÄ°è ºÉý¢ÝÃgÁ JAzÀgÉ CzÀÄ £ÀªÀÄä ªÀQîjUÉ UÉÆvÀÄÛ JAzÀÄ ¸ÁQë £ÀÄr¢zÁÝgÉ .37 O.S.No.7354/2006
Again after two lines in the same para he has deposed as under:
zÁªÁ D¹ÛAiÀÄ£ÀÄß ªÀiÁgÁl ªÀiÁqÀ®Ä PÀȵÀª Ú ÀÄÆwð £ÀªÀÄUÉ AiÀiÁªÀÅzÉà zÁR¯É ªÀiÁrPÉÆnÖ®è J£ÀÄߪÀÅzÀÄ ¤d . The above evidence given by D.W.1 clearly goes to show that absolutely no documentary evidence has been placed before the court to accept the stand taken by the defendant. Under such circumstances it can be said that the defendant is a tenant in respect of the suit schedule property and the plaintiff is the absolute owner of the suit schedule property by virtue of the registered sale deed executed by V.Krishnamurthy in his favour as per Ex.P7.
35. The learned counsel for the plaintiff in his written arguments much contended that the very documents produced by the defendant at Ex.D2, i.e., certified copy of the settlement deed shows that the vendor of the plaintiff V.Krishnamurthy has absolutely no right and interest to alienate or execute or transact with the suit property. So far 38 O.S.No.7354/2006 as the said aspect is concerned, it can be said that the evidence on record clearly shows the defendant is residing in the suit property in the capacity of a tenant. He being the tenant he cannot suppose to question the title of the owner, i.e., V.Krishnamurthy, who has executed Ex.P7 in favour of plaintiff. Apart from that the evidence given by D.W.1 during the course of his cross examination at page No.10, last but one two lines wherein in unequivocal terms he has admitted that except V.Krishnamurthy, no others are the owners of the suit schedule property. At this juncture, it would be relevant to quote the said evidence given by D.W.1 which reads as under:
zÁªÁ ¸ÀéwÛUÉ PÀȵÀÚªÀÄÆwðAiÀĪÀgÀ£ÀÄß ºÉÆgÀvÀÄ¥Àr¹ ¨ÉÃgÉ AiÀiÁgÀÄ ªÀiÁ°ÃPÀgÀÄ E®è JAzÀgÉ ¤d .
The above evidence given by D.W.1 clearly goes to show that the plaintiff is the absolute owner of the suit schedule property having purchased the same from its owner V.Krishnamurthy under a registered sale deed as per Ex.P1 for a valuable consideration.39 O.S.No.7354/2006
36. Now coming to the 2nd stand taken by the plaintiff, i.e., to say after purchasing the suit schedule property he caused notice as per Ex.P1 to the defendant intimating with regard to the purchasing of the suit schedule property and also called upon him to pay future rents and arrears of rents. When the defendant has failed to comply with the notice, he sent termination notice as per Ex.P3 through registered post with due acknowledgment and Under Certificate of Posting. Admittedly the notice sent through RPAD was retuned with a shara "Intimation given and not claimed." The notice sent through Under Certificate of Posting sent to the correct address and admittedly the same was not returned. So the plaintiff contended that it is deemed service under law. So also it is the contention of the plaintiff that after purchase of the suit schedule property he entered into the shoes of V.Krishnamurthy and automatically the defendant became his tenant.
40 O.S.No.7354/2006
37. The defendant has denied the receipt of Ex.P3 termination notice. So also he gave reply to Ex.P1 notice as per Ex.P2 by denying the contents of the said notice. He claims to be the permanent tenant and the vendor of the plaintiff executed agreement of sale in his favour in respect of the suit schedule property.
38. In the light of the above rival stand, the most important aspect to be taken note of here is that whether termination notice sent by the plaintiff as per Ex.P3 is valid termination notice under law or not ? As it is already discussed above, there is sufficient acceptable materials placed before the court to show that the plaintiff is the absolute owner of the suit schedule property. The contention of the defendant is that he has not at all received Ex.P3 termination notice. The evidence on record shows that Ex.P5 receipt for having sent Ex.P3 notice Under Certificate of Posting. Admittedly the said notice sent through UCP not returned. So also the evidence on record shows that the said Ex.P3 notice sent to the same address which Ex.P1 was sent 41 O.S.No.7354/2006 to the defendant. That means to say, Ex.P3 notice was sent to the correct address of defendant Under Certificate of Posting as per Ex.P5. When the notice is sent to the correct address of the defendant, it can be said that it is a deemed service under law. In this regard, it would be useful to refer the decision rendered in 2007(1) AIR Kar page 663 between Jodharam Vs. Jaganmathamma, wherein it was held by their lordship as under:
(A) Transfer of Property Act (4 of 1882) section 106 - Quit notice - Sent simultaneously on same day and time by RPAD as well as by Certificate of Posting - Returned with an endorsement "addressee continuously absent for 7 days, hence returned to the sender" -
Notice is deemed to have been served.
So also in another decision reported in AIR 1971 Kerala 231 between Ayisabeevi and another Vs. Aboobacker, wherein at (B) it was held by their lordship as under:
(B) Evidence Act (1872) Section 114 - Postal receipt in proof of dispatch of registered notice along with a copy of notice bearing correct 42 O.S.No.7354/2006 address of the addressee raises a presumption in the absence of return of notice from the dead letter office, that the notice reached the destination - insufficient address of the addressee on the postal receipt does not rebut the presumption."
39. Looking into the dictum laid down by their lordship in the above two decisions, it can be said that the same is aptly applicable to the case in hand. Even in the present case also admittedly Ex.P1 notice was served upon the defendant and he gave reply to the notice as per Ex.P2. So also Ex.P3 termination notice was sent to the same address which was shown in Ex.P1 notice. When that would be the case, it can be held that it is a deemed service under law. Apart from that DW1 during the course of his cross examination at page No.7 in the middle portion has admitted with regard to the said aspect. At this juncture it would be relevant to quote the said evidence given by him which reads as under:
¢£ÁAPÀ 10.12.2004 ºÁUÀÆ ¢£ÁAPÀ 5.6.2006gÀ £ÉÆnøÀ°è £ÀªÀÄÆ¢¹gÀĪÀ «¼Á¸À MAzÉà DVzÉ J£ÀÄߪÀÅzÀÄ ¤d .43 O.S.No.7354/2006
Looking into the above evidence given by DW1 it can be said that the termination notice sent by the plaintiff as per Ex.P3 through Under Certificate of Posting was duly served upon the defendant and which is very evident from Ex.P5, i.e., postal receipt for having sent Ex.P3 termination notice under UCP. Under such circumstances under any stretch of imagination the stand taken by the defendant that he has not received the termination notice cannot be accepted.
40. The learned counsel for the defendant in his written arguments contended that the defendant has given suitable reply to Ex.P1 notice as per Ex.P2 denying all the contents of notice, as such there is no attornment of tenancy and he further contended that neither the plaintiff nor his vendor V.Krishnamurthy have not caused attornment of tenancy. So far as the said aspect is concerned it can be said that the very document produced by the plaintiff at Ex.P7 certified copy of the sale deed executed by V.Krishnamurthy in favour of plaintiff shows that the plaintiff has purchased the suit 44 O.S.No.7354/2006 schedule property for a valuable consideration and after obtaining the sale deed he caused notice as per Ex.P4 with regard to the purchasing of property. Inspite of that the defendant gave evasive reply for the best reasons known to him. As it is already discussed above the evidence on record shows the defendant is residing in the suit schedule property in the capacity of tenant, but not in the capacity as claimed by him. When the plaintiff has become the absolute owner of the suit schedule property by virtue of Ex.P3 registered sale deed automatically he became the absolute owner and defendant becomes tenant under him.
41. In this regard, it would be useful to refer the decision rendered in AIR 2016 (NOC) page 121 (Kar) between Vinod G. Vs. Jijabai Srikant Jadav, wherein at (A) it was held by their lordship as under:
(A) Transfer of Property Act (4 of 1882), section 109 - Karnataka Rent Act (34 of 2001), section 3(e) Rights of Lessor's Transferee -
Transfer of ownership of premises to
respondent by previous lessor - results in
45 O.S.No.7354/2006
statutory attornment by tenant in favour of lessor's transferee, i.e., the respondent - jural relationship of landlord and tenant between transferee / respondent, therefore comes into existence - transferee / steps in shoes of lessor / landlord and entitled to all rights of lessor/landlord - he is entitled to collect rent in terms of lease as of right and becomes landlord under section 3(e) of Rent Act - tenant cannot dispute right of transferee to maintain an eviction petition under the Rent Act or to claim rent."
So also in another decision reported in AIR 2016 Rajasthan page 18 between Dev Kishan Vs. Nand Prakash and another, wherein it was held by their lordship that;
Transfer of Property Act (4 of 1882) section 109 - Rajasthan premises (Control of Rent and Eviction) Act (17 of 1950), Section 3(iii) 13(1)(f) - landlord - sale of tenanted property - attornment of tenancy in favour of purchaser landlord is automatic - sale of premises of registered sale deed proved -
decree of eviction in favour of purchaser, valid."
46 O.S.No.7354/2006
42. Looking into the dictum laid down by their lordship in the above two decisions it can be said that the above said two decisions are aptly applicable to the present case on hand. As it is already stated above, the oral and documentary evidence on record clearly shows that the plaintiff is the absolute owner of the suit schedule property, as such the defendant automatically becomes tenant under the plaintiff. So looking into the oral and documentary evidence on record and also looking into the dictum laid down by their lordship in the above referred decisions, it can be said that whatever the contention taken by the defendant cannot be accepted. So by considering the over all facts and circumstances of the case and by considering the oral and documentary evidence placed before the court, it can be said that the plaintiff has succeeded to prove that the defendant is a tenant under him on a monthly rent of Rs.1,000/- and also he has succeeded to establish before the court that he has validly and legally terminated the tenancy of defendant by causing notice dated 47 O.S.No.7354/2006 5/6/2006 as per Ex.P3. For the foregoing reasons and discussions, issue No.1 and 2 are answered in the Affirmative.
43. Issue No.3: It is the contention of the plaintiff that after he purchased the suit schedule property under Ex.P7 registered sale deed, he caused notice to the defendant as per Ex.P1 with regard to the purchasing of the property and also asked him to pay rent in respect of suit schedule premises in future and also to pay the arrears of rent. The evidence on record shows that though the defendant gave reply to Ex.P1 notice as per Ex.P2 denying the contents of the said notice, but the evidence on record and the detailed discussions made in issue No.1 and 2 it shows that the defendant is residing in the suit schedule property in the capacity of tenant, but not in the capacity as contended by him. So also the evidence on record shows that D.W.1 during the course of his cross examination in unequivocal terms admitted that the defendant is a tenant in respect of the suit schedule property on a monthly rent of Rs.1,000/- (Rupees One Thousand only) and also the evidence on record shows that the defendant admits 48 O.S.No.7354/2006 with regard to payment of rent till 1998. When that would be the case and when there is clear admission by D.W.1 with regard to rate of rent in respect of suit schedule property and the defendant residing in the suit schedule property in the capacity of tenant, without hesitation it can be said that the defendant being the tenant in respect of the suit schedule property on a monthly rent of Rs.1,000/-, has paid rent upto 1998. When that would be the case, the plaintiff is certainly entitled for rents in respect of the suit schedule property after he purchasing the suit schedule property under Ex.P7 registered sale deed. The plaintiff though contended that the defendant has not paid rent from 1999 onwards, but the very evidence on record shows that he claiming rent in respect of the suit schedule property from August 2004 till 30/6/2006, i.e., to say, after he purchasing the said property and till the date of termination of tenancy of the defendant with effect from 30/6/2006. So looking into the said aspect and also by considering the admitted rent of Rs.1,000/- per month in respect of the suit schedule property, it can be said that there is acceptable evidence to show that the defendant is in arrears 49 O.S.No.7354/2006 of rent of Rs.23,000/- at the rate of Rs.1,000/- per month from August 2004 till 30/6/2006. Absolutely there is no acceptable evidence placed before the court by the defendant to disbelieve the said claim of the plaintiff. So by considering the over all facts and circumstances of the case and the available evidence on record this court is of the opinion that the defendant is a chronic defaulter in the matter of payment of rents and he was due in arrears of rent of Rs.23,000/- till the end of June 2006, as it is already stated above, inspite of receipt of Ex.P1 notice, the defendant instead of paying the arrears of rent and future rents, gave evasive reply. The very contention taken by the defendant in Ex.P2 reply notice clearly shows he is a chronic defaulter in the matter of payment of rent. For the foregoing reasons and discussions, issue No.3 for consideration is answered in the Affirmative.
44. Additional Issue No.1: It is the contention of the defendant that he is in possession of the suit schedule property more than the statutory period of 12 years from 1988 and till today he is in possession as the owner, but not as a 50 O.S.No.7354/2006 tenant. It is the specific contention of the defendant that he is personally enjoying the suit schedule property with the knowledge of the true owner since from 18 years, as such his possession is hostile to the title of the plaintiff. It is the further contention of the defendant that at any point of time, neither the plaintiff or anybody obstructed or dispossessed him from the suit schedule property and even the true owner has not demanded him to deliver the suit schedule property. So he contended that he perfected his title to the suit schedule property by way of adverse possession.
45. The learned counsel for the plaintiff contended that the stand of the defendant that he has perfected his title over the suit schedule property by way of adverse possession cannot be accepted. So also he contended that the defendant is the proper person to depose before the court with regard to the said aspect, but the SPA holder of the defendant deposed before the court with regard to the said aspect, though the defendant is very hail and healthy and absolutely there is no problem for him to come and give evidence before the court as 51 O.S.No.7354/2006 admitted by DW1 in his evidence. He further contended that certain facts which are in the personal knowledge of a person, he is the competent person to speak about the said aspect before the court. In the absence of such evidence and though the person who has executed power of attorney is hail and healthy, if he avoids to appear before the court, adverse inference can be drawn that deliberately in order to suppress the truth of the matter he has not come before the court. So also he contended that when the evidence on records shows that the defendant is very hail and healthy, inspite of that he allowed his power of attorney holder to depose before the court, so whatever the evidence given by the power of attorney holder cannot be taken into consideration. In support of his arguments, he has relied upon the decision reported in ILR 2013 Kar page 4435.
46. He further contended that the evidence given by D.W.1 and the written statement filed by the defendant shows that he was the tenant under V.Krishnamurthy and also he contended that he had valid agreement with the said 52 O.S.No.7354/2006 V.Krishnamurthy to purchase the suit schedule property. So also he contended that the defendant admits in the evidence that he was paying rents to V.Krishnamurthy till 1998. So he contended that when a person claiming possession under the lease agreement or under the agreement cannot seek declaration for adverse possession. He further contended that the evidence on record shows the defendant admitted with regard to the payment of rent till 1998 and the present suit is filed in the year 2006. So he contended that within a period of 9 years from 1998 the present suit is filed, as such the defendant has not proved he is in possession of the suit schedule property continuously for a period of 12 years without any interruption. When such would be the case, the claim of the defendant cannot be accepted. In support of his contention, he has relied upon the following decisions:
(1) AIR 2007 Calcutta page 8 (2) AIR 1924 Calcutta page 168 (3) AIR 1993 Patna page 175 53 O.S.No.7354/2006 So in view of his above written arguments and decisions he urged to answer additional issue No.1 for consideration in the Negative.
47. In the light of the above rival contention, on going through the records it shows that the defendant claiming his right and title over the suit schedule property by way of adverse possession. What he contended that he is in physical possession and enjoyment of the suit schedule property continuously for a period of more than 12 years without any kind of obstruction or interruption either by the plaintiff or the true owner, as such he claims that he perfected his right over the suit schedule property by way of adverse possession. The defendant though has taken such a specific stand in his written statement, but in proof of the same absolutely no acceptable evidence has been placed before the court. The evidence on record shows that the defendant admits he is a tenant under V.Krishnamurthy on monthly rent of Rs.1,000/- and also admits with regard to the payment of rent till 1998. When that would be the case, the contention of the defendant 54 O.S.No.7354/2006 that he is in peaceful possession and enjoyment of the suit schedule property continuously without any kind of obstruction either by the plaintiff or the erstwhile owner or anybody for a period of 12 years cannot be accepted. Admittedly the records shows that after 1998 within a span of 8 years the present suit is filed. When that would be the case, whereas the question of he being in continuous possession of the suit schedule property continuously for a period of more than 12 years by exercising his absolute right over the suit schedule property. The person who claims adverse possession over a property, he is required to establish before the court he is in continuous uninterrupted possession of the property continuously for a period of more than 12 years, if not so, he cannot seek adverse possession over the property. In this regard it would be useful to refer a decision rendered in AIR 2007 Calcutta page No.8 wherein it was held by their lordship as under:
(A) Limitation Act (36 of 1963) Article 65 -
adverse possession - possession of defendant in suit plot not wrong nor permissive but on 55 O.S.No.7354/2006 strength of right in view of oral agreement for sale of suit plot with predecessor of plaintiff, for which he had paid part consideration -
Defendant's further case was that predecessor of plaintiff refused to execute sale deed though he was ready to perform his part of contract -
Admission of defendant of such facts in his written statement as well as in his evidence -
Possession of defendant in such case would be deemed as on behalf of predecessor of plaintiff
- No suit for specific performance filed by defendants against predecessor of plaintiff - Art.65 would not apply to non-suit plaintiff." Looking into the dictum laid down by their lordship in the above decision, it can be said that the same is aptly applicable to the present case in hand. As it is already stated, the evidence on record shows the defendant admits payment of rents in respect of suit schedule property till 1998 and the present suit is filed in the year 2006, i.e., to say, within a span of 8 years. When that would be the case, the say of the defendant that he is in continuous possession of the suit schedule property without any kind of interruption to the 56 O.S.No.7354/2006 knowledge of the true owner cannot be accepted. Apart from that, in proof of his contention he has not brought the evidence of erstwhile owner. So also the ratio laid down by their lordship in the above decision is aptly applicable to the present case in hand. In the present case also the evidence on record shows that the defendant contended that the vendor of the plaintiff V.Krishnamurthy executed an agreement in his favour and also he has consented the defendant to be a permanent tenant in respect of the suit schedule property. When the defendant has contended like so, he cannot suppose to seek his title over the suit schedule property by way of adverse possession. If according to them if there would be any agreement of sale executed by the vendor of plaintiff V.Krishnamurthy in his favour, it is left upon for him to file suit against him seeking appropriate relief on the basis of the said alleged agreement executed by V.Krishnamurthy. When such would be the case, whatever the contention taken by the defendant, i.e., to say he has perfected his title over the suit schedule property or permanent tenure by adverse possession cannot be accepted.
57 O.S.No.7354/2006
48. The defendant contended that he is not a tenant of vendor of plaintiff and he is residing in the suit property as a permanent tenant and for that he has paid Rs.3,00,000/- to the vendor of the plaintiff V.Krishnamurthy. As it is already discussed in detail in issue No.1and 2 that absolutely there is no acceptable evidence to show that the vendor of the plaintiff consented the defendant to be a permanent tenant in respect of the suit schedule property and Rs.3,00,000/- paid in order to execution of agreement of sale as claimed by the defendant. When that would be the case, it can be said that the defendant residing in the suit schedule property in the capacity of a tenant only. The defendant cannot suppose to claim adverse possession merely on the ground that there is no document to show that he has not paid rent either to the erstwhile owner or to the plaintiff. In this regard, it would be useful to refer the decision rendered in AIR 1933 Patna page 175, wherein it was held by their lordship as under:
(B) Adverse possession - Mere non-payment of rent does not create title"58 O.S.No.7354/2006
Looking into the dictum laid down by their lordship in the above decision, it can be said that the said decision is also aptly applicable to the present case in hand, as because merely on the non-payment of rent in no way it would goes to create any title to the defendant in respect of the suit schedule property. As because when he has taken specific stand that the erstwhile owner consenting him to be a permanent tenant and he has executed agreement of sale and at that time he has paid Rs.3,00,000/-, it is for him to establish the said aspect with acceptable evidence. Admittedly no such acceptable evidence has been placed before the court by the defendant. So by considering the over all oral and documentary evidence on record and in the light of the dictum laid down by their lordship in the above decision it can be said that the plaintiff has failed to prove the additional issue No.1 for consideration. Accordingly additional issue No.1 is answered in the Negative.
56. Issue No.4: the plaintiff contended that the has terminated the tenancy of the defendant with effect from 59 O.S.No.7354/2006 30/6/2006 by causing notice as per Ex.P3, as such the defendant is in unauthorised occupation of the suit schedule property from 30/6/2006, as such he is entitled for damages. No doubt, the plaintiff has taken such a contention in the plaint and also stated about the same in his evidence, but there is no sufficient evidence to ascertain the damages. When that would be the case, that aspect cannot be adjudicated in the present suit and in order to ascertain the damages, enquiry under Order 20 Rule 12 C.P.C. is required. Under such circumstances, it can be said that the damages claimed by the plaintiff shall be determined in a separate enquiry under Order 20 Rule 12 C.P.C. Accordingly issue No.4 for consideration is answered.
57. Issue No.5: In view of my findings to the above issues, the plaintiff is entitled for the reliefs as sought by him. Accordingly issue No.5 for consideration is answered in the Affirmative.60 O.S.No.7354/2006
58. Issue No.6: In view of my finding to the above issues, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby decreed with cost.
The defendant is directed to quit and deliver vacant possession of the suit / plaint schedule property to the plaintiff within four months from the date of this order. So also the defendant is directed to pay arrears of rent of Rs.23,000/- till the end of June 2006. Failing which, the plaintiff is at liberty to take steps as per law.
So far as the damages claimed by the plaintiff is concerned, the same shall 61 O.S.No.7354/2006 be determined in a separate enquiry under Order 20 Rule 12 C.P.C.
Draw decree accordingly.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in open Court on this the 2nd day of June 2016).
(Sadananda M. Doddamani) XXV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE:
Witnesses examined for the plaintiff:
P.W.1 : Rajesh K. Bathija Witnesses examined for the defendant: DW1 : Fayaz Pasha Documents marked for the plaintiff: Ex.P1 : Legal notice dated 10/12/2004, Ex.P2 : Reply notice dated 1/1/2005, Ex.P3 to 6 : Office copies of legal notice dated 5/6/2006,
postal receipt, returned registered postal cover 62 O.S.No.7354/2006 and COP, Ex.P7 : Certified copy of the sale deed executed in favour of plaintiff, Ex.P8 : Copy of order in HRC No.185/1991, Ex.P9 : Certified copy of evidence in O.S.No.5417/2014, Ex.P10 : Copy of judgment in HRC No.1696/1991. Documents marked for the defendant:
Ex.D1 : Special power of attorney,
Ex.D2 : Certified copy of the settlement deed
dated 28/7/1957.
(Sadananda M. Doddamani)
XXV ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE
63 O.S.No.7354/2006
Judgment pronounced in open court
(vide separate detailed order) with
the following operative portion:-
ORDER
The suit of the plaintiff is
hereby decreed with cost.
The defendant is directed to
quit and deliver vacant possession
of the suit / plaint schedule
property to the plaintiff within four
months from the date of this order.
So also the defendant is directed to
pay arrears of rent of Rs.23,000/-
till the end of June 2006. Failing
which, the plaintiff is at liberty to
take steps as per law.
64 O.S.No.7354/2006
So far as the damages claimed
by the plaintiff is concerned, the
same shall be determined in a
separate enquiry under Order 20
Rule 12 C.P.C.
Draw decree accordingly.
XXV ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
65 O.S.No.7354/2006