Bangalore District Court
Sri. Suresh Melwani vs Sri.Masood Pasha on 20 April, 2017
IN THE COURT OF THE LXII ADDL.CITY CIVIL AND
SESSIONS JUDGE, (CCH-63), BENGALURU CITY
: PRESENT:
Sri Parameshwara Prasanna.B.
B.A.LL.B.,
LXII Additional City Civil and Sessions Judge,
Bangalore City.
Dated this the 20th day of April, 2017
O.S.No.7899 /2015
PLAINTIFFS: 1. Sri. Suresh Melwani,
S/o Sham Melwani,
Aged about 31 years
2. Smt.Anushka Melwani,
W/o Suresh Melwani,
Aged about 28 years,
Both are residing at No.52,
Opelnest Apartment, 2nd floor,
No.201, Robertson,
Bangalore-560 005.
[By Sri.Srinivasa.M
Advocate]
/v e r s u s/
DEFENDANTS: 1. Sri.Masood Pasha,
S/o Mamood Pasha,
Aged about 37 years,
Residing at Nos.19 and 74,
Mackan road, Shivajinagar,
Bangalore-560 001.
Also at NO.335, 3rd Cross,
China Bazar Street,
Narayanapillai Street,
Shivajinagar, Bangalore-560 001
2 O.S.No.7899 /2015
2. Sri.Umar Sharieff,
S/o Noor Mohammed Shariff,
Aged about 27 years,
Residing at No.74, Mackon street,
Bangalore-560 001.
(Amended carried out as per order dated
6.2.2016)
(By Sri.M.N.Krishna, Advocate)
Date of institution of the suit : 14.9.2015
Nature of the suit : Ejectment
Date of commencement of : 03.12.2015
recording of the evidence
Date on which the Judgment : 20.04.2017
was pronounced.
: Year/s Month/s Day/s
Total duration 01 07 06
(Parameshwara Prasanna.B)
LXII ACC & SJ: B'LORE.
JUDGMENT
The suit is filed by the plaintiff for Ejectment and arrears of rent.
Initially the suit was filed against 1st defendant only and subsequently on filing and allowing of application filed by 2nd 3 O.S.No.7899 /2015 defendant under Order 1 Rule 10(2) CPC, the 2nd defendant got implicated himself in this suit.
2. The case of the plaintiffs in brief is that, the plaintiffs are absolute owners of suit schedule property and as per rental Agreement dated: 11.8.2014 entered into between plaintiffs and 1st defendant, the plaintiff demised suit schedule property to the 1st defendant on monthly rent of Rs.31,500/- for a period of 11 months commencing on 1.8.2014 and ending on 30.06.2015. That on the date of rental agreement, 1st defendant paid Rs.3,00,000/- as security deposit which is refundable free of interest to the 1st defendant at the time of vacating the suit schedule property. That by efflux of time of tenancy of 1st defendant expired on 30.06.2015. Upon expiry of period of lease, when the plaintiffs demanded 1st defendant to vacate the suit schedule property 1st defendant sought one month time and undertook to vacate the premises within end of July 2015. But since 1st defendant did not vacate suit schedule premises within time agreed, the plaintiff got issued quit notice/ legal notice dated 13.8.2015 to the defendant by calling upon the defendant to vacate the suit schedule property on or before 1.9.2015. Even though said quit notice served on the 1st defendant, 1st defendant neither replied the quit notice nor vacated the suit 4 O.S.No.7899 /2015 schedule premises. The 1st defendant has not paid rent to the plaintiffs from 1.7.2015 to 30.8.2015. Hence according to the plaintiffs they have been constrained to file suit for ejectment / possession and for arrears of rent.
3. On registering of the suit, the summons was issued to the 1st defendant, the 1st defendant appeared through his counsel and filed written statement.
The 1st defendant in his written statement denied the landlord and tenancy relationship between plaintiffs and himself and he denied the ownership of plaintiffs over suit schedule premises. The 1st defendant denied execution of rental agreement between himself and plaintiffs in respect of suit schedule property and payment of security deposit of Rs.3,00,000/- by him to the plaintiffs. The defendant also denied the issuance of service of quit notice/ legal notice dated 13.8.2015. Inter-alia with these contentions, the 1st defendant sought for dismissing of the suit.
4. That subsequently on 6.2.2016, the 2nd defendant filed IA under Order1 Rule 10 CPC for getting himself impleaded as 2nd defendant in this suit and on submitting no objection by the plaintiffs, the same was allowed and 2nd defendant got impleaded in 5 O.S.No.7899 /2015 this suit. The 2nd defendant filed the written statement and he in his written statement has denied the plaintiffs ownership over suit schedule property. He also denied execution of rent agreement dated 11.8.2014 between plaintiffs and 1st defendant. The 2nd defendant has contended that, he is the co-owner of the suit schedule property and he is in possession of the same. The 2nd defendant has contended that since more than 5 years, he along with one Shaheem Shareef running business under the name and style of "Ayesha Collection" in the suit schedule premises. It is further contended that originally the suit schedule property belonged to Mr.Nisar Ahmed @ Ghouse Shariff, s/o late Mohideen Shjarieff and Anjum Pasha and they purchased the suit schedule property as per registered Sale Deed dated 30.10.1993. It is further urged that Iqbal Shareef, Meherunnissa and Anjum Pasha created registered Lease Deed dated 24.4.2017 without the knowledge of the 2nd defendant and without effecting partition of the suit schedule property. It is further urged that Iqbal Shareef and Meherunnissa had no independent right over the suit schedule premises. It is also contended that Gift Deed dated 6.3.2008 created by Meherunnissa and Anjum Pasha without the knowledge of the defendant No.2. It is further urged that Sale Deed dated 19.8.2013 has been created by 6 O.S.No.7899 /2015 Meherunnissa and Anjum Pasha. Inter-alia with these contentions, 2nd defendant sought for dismissing of the suit.
5. In order to prove the case of the plaintiffs, the 1st plaintiff examined himself as Pw.1 and got marked 8 documents as Exs.P.1 to 8. That in order to substantiate the defence, the 1st defendant got examined himself as Dw.1 and got marked document as Ex.D.1 and also defendant No.2 got himself examined as Dw.2.
6. Heard arguments of learned counsel for plaintiffs and defendant Nos.1 and 2. Perused the records of the case.
7. On the basis of the above pleadings of the parties, this Court has framed the following:
ISSUES
1. Whether the plaintiffs prove that plaintiffs are the absolute owners and 1st defendant is the tenant of the suit schedule property?
2. Whether the plaintiffs prove the valid termination of the tenancy of the 1st defendant?
3. Whether the plaintiffs further prove that the 1st defendant is in arrears of rent from 1.7.2015?
4. Whether the plaintiffs are entitled for the reliefs sought for?
5. What Decree or Order?7 O.S.No.7899 /2015
8. My finding on the above points are as under:
Issue No.1 to 4: In the Affirmative;
Issue No.5: As per final order;
for the following:
REASONS
9. Issue No.1 :
The suit is filed by the plaintiffs for ejectment and arrears of rent.
The case of the plaintiffs in brief as culled out from the plaint is that, the plaintiffs are absolute owners of the suit schedule property and as per Rental Agreement dated 11.8.2014 entered into between plaintiffs and 1st defendant, the suit schedule premises let out to the 1st defendant on monthly rent of Rs.31,500/- for a period of 11 months commencing on 1.8.2014 and ending on 30.6.2015. At the time of rental agreement, the 1st defendant paid Rs.3,00,000/- as security deposit to the plaintiffs. That the tenancy of 1st defendant expired on 30.6.2015. Upon expiry of period of lease, when the plaintiffs demanded 1st defendant to vacate the suit schedule property, the 1st defendant sought one month time and undertook to vacate the premises within end of July 2015. Since 1st defendant did not vacate the suit schedule property within time of agreed period, the plaintiffs got issued quit notice/ legal notice 8 O.S.No.7899 /2015 dated 13.8.2015 by calling upon the defendants to vacate the suit schedule premises on or before 1.9.2015. Even though said quite notice served on the 1st defendant, the 1st defendant neither replied notice nor vacated the suit schedule premises. The 1st defendant has not paid rent to the plaintiffs on 1.3.2015 to 30.8.2015. Hence according to the plaintiffs, the plaintiffs have been constrained to file suit for ejectment and arrears of rent.
10. Initially the suit was filed against 1st defendant only and subsequently on filing and allowing of application under Order 1 Rule 10(2) CPC, the 2nd defendant got implicated himself in this suit.
The 1st defendant in his written statement denied landlord and tenancy and relationship between plaintiffs and himself. The 1st defendant also denied ownership of the plaintiffs over the suit schedule property. With these contentions, the 1st defendant sought for dismissing of the suit. Whereas 2nd defendant denied the ownership of the suit schedule property over the suit schedule premises and he has contended that he is the co-owner of the suit schedule property and since last 5 years, he along with one Mr.Shaheem Shareef running business in the suit schedule premises under the name and style of Ayesha Collection. Interalia 9 O.S.No.7899 /2015 with these contentions, the 2nd defendant sought for dismissing of the suit.
11. In order to substantiate the case of the plaintiffs, the 1st plaintiff got himself examined as Pw.1 and got marked documents as Exs.P.1 to Ex.P.8. Ex.P.1 is the registered Sale Deed dated 19.8.2013 executed by Mr.Anjum Pasha in favour of plaintiffs which shows that the suit schedule property has been purchased by the plaintiffs. Ex.P.2 is the Katha extract and Ex.P.3 is the Katha certificate issued by BBMP pertaining to suit schedule property also establishes that plaintiffs are the owners of suit schedule property. Ex.P.4 rental agreement dated 11.8.2014 shows that the suit schedule property was demised by the plaintiffs to the 1st defendant on monthly rent of Rs.31,500/- for a period of 11 months commencing on 1.8.2014 ending on 30.8.2015. Ex.P.5 is the office coy of the quit notice/ legal notice. Ex.P.6 is the postal receipt and Exs.P.7 and 8 are the postal acknowledgments.
12. Pw.1 in his affidavit filed towards examination-in-chief has reiterated plaint averments. Pw.1 was cross-examined by the counsel for defendant No.2 and counsel for 1st defendant has adopted the cross-examination done on behalf of 2nd defendant. 10 O.S.No.7899 /2015 Pw.1 during his cross-examination deposed that the 1st defendant is the tenant of the suit schedule property and he denied that suit schedule premises is in possession of the 2nd defendant. He also denied that Exs.P.2, 3, 6 to 8 are concocted documents.
13. Whereas the 1st defendant got examined himself as Dw.1 and got marked statement of bank account as Ex.D.1. and DW.1 in his affidavit filed towards examination-in-chief, he has reiterated the averments made in his written statement.
14. Dw.1 even though in his chief-examination has denied the landlord and tenancy relationship between himself and plaintiffs, he has produced Ex.D.1 to show that he has remitted rents to the account of the plaintiffs. Dw.1 during cross-examination has admitted that he has paid rent as per Ex.D.1 and last payment of rent was made by him on 11.3.2015 through Cheque. He also admitted that Sale Deed, Katha and Revenue Receipts in respect of suit schedule property stands in the name of plaintiffs and on confirmation of Ex.P.4, the 1st defendant has admitted his signature in Ex.P.4 i.e., Rental Agreement dated 11.8.2014 which are marked as Exs.P.4(a) to Ex.P.4(e).
11 O.S.No.7899 /2015
15. Even though 2nd defendant got himself examined as Dw.2 he has not produced any documents to show that he is the co- owner or that he has been carrying on business along with Shoaheen Shareef under the name and style of Ayesha Collection in the suit schedule premises.
16. The averments in the plaint, evidence of Pw.1, Exs.P.1 to Ex.P.3 and admissions made by Dw.1 during cross-examination clearly establishes the plaintiffs' right, title and interest over the suit schedule property. Ex.P.4 rental agreement coupled with admission of his signature in Ex.P.4 by Dw.1 during his cross-examinatin establishes that suit schedule property was let out by the plaintiffs to the 1st defendant. Under these circumstances, I am of opinion that plaintiffs have proved that they are the absolute owners of the suit schedule property and they have also proved that 1st defendant is the tenant of the suit schedule property. Hence, issue NO.1 is answered in the Affirmative.
17.Issue No.2:- According to the plaintiffs, the tenancy of 1st defendant expired by efflux of time on 30.6.2015 and plaintiffs have validly terminated that 1st defendant in respect of suit schedule property by issuing quit notice/ legal notice dated 30.8.2015 by 12 O.S.No.7899 /2015 calling upon the 1st defendant to vacate the suit schedule premises on or before 1.9.2015. The office copy of quit notice/ legal notice has been marked as Ex.P.5 and postal receipts are marked as Ex.P.6 and two postal acknowledgments are marked as Exs.P.7 and 8 shows that quit notice was served on the 1st defendant and 1st defendant during cross-examination unequivocally admitted that he has been served with Ex.P.5 quit notice/ legal notice. Under these circumstances, I am of the opinion that tenancy has been validly terminated by the plaintiffs by issuing quit notice in compliance of provision of Section 106 of Transfer of Property Act. Hence, issue No.2 is answered in the Affirmative.
18. Issue No.3:- The plaintiffs in para No.11 of their plaint have contended that the 1st defendant has not paid the rent to the plaintiffs from 1.7.2015. As per relief "B" in para No.15 of the plaint, the plaintiffs have sought order directing the defendants to pay arrears of rent from 1.7.2015 to 30.8.2015. The 1st defendant during his cross-examination admitted that presently 18 months rent is due from him to the plaintiffs. Even the Ex.D.1 statement of accounts produced by the 1st defendant does not show any payment of rent by the 1st defendant from 1.7.2015. The 1st defendant during his cross-examination admitted that fixed rent is Rs.31,500/-. Since 13 O.S.No.7899 /2015 the plaintiff has established that the defendant is in arrears of rent from 1.7.2015, the plaintiffs are entitled for rent till 30.8.2015. Hence, I have answered Issue No.3 in affirmative.
19.Issue No.4:- As I have already discussed in Issue No.1, the oral and documentary evidence placed by the plaintiffs establishes that the plaintiffs are the absolute owners of the suit schedule property and the 1st defendant is the tenant of the suit schedule property. Though the 2nd defendant contended that he is the co-owner of the suit schedule property and he has been carrying on business in the suit schedule premises along with one Shaheem Shariff under the name and style of Ayesha Collections, the 2nd defendant has not produced any documents to substantiate the same. Under these circumstances, I am of the considered opinion that the 2nd defendant is not the co-owner of suit schedule premises and he is not in possession of the suit schedule property. Since the plaintiffs have proved Issue No.1 to 3, I am of the considered opinion that the plaintiffs are entitled for the relief claimed. Hence, I have answered Issue No.4 in affirmative.
20. Issue No.5: In view of the above discussion and my finding on Issue No.1 to 4, I proceed to pass the following -
14 O.S.No.7899 /2015
ORDER
The suit of the plaintiffs is decreed
with cost.
The 1st defendant is hereby directed to
quit, deliver and vacate the suit
schedule property to the plaintiffs in
tenable conditions within one month from
the date of this judgment.
The 1st defendant is hereby directed to
pay the arrears of rent at the rate of
Rs.31,500/- per month from 1.7.2015 to
30.8.2015 to the plaintiffs.
Draw decree accordingly.
***
[Dictated to the Judgment writer, Scripted by her and then corrected, signed and pronounced by me, in the Open Court on this the 20th day of April 2017).
[Parameshwara Prasanna.B.] LXII Additional City Civil & Sessions Judge BANGALORE.
15 O.S.No.7899 /2015ANNEXURE
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 Suresh Melwani
2. List of witnesses examined on behalf of the
Defendant/s:
D.W.1 Masood Pasha
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P.1- Registered Sale Deed dated 19.8.2013 Ex.P.2- Katha extract Ex.P.3 Katha Certificate Ex.P.4 Rental Agreement dated 11.8.2014 Ex.P.5 Office copy of the legal notice/quit notice Ex.P.6 Postal receipt Exs.P.7, 8 Postal acknowledgments
4. List of documents marked on behalf of the defendant/s:
Ex.D.1 Statement of Bank Account
[Parameshwara Prasanna.B.]
LXII Additional City Civil & Sessions Judge
BANGALORE.
16 O.S.No.7899 /2015
17 O.S.No.7899 /2015