Bangalore District Court
Rajanikanth.B.Shah vs K.Subramani on 31 July, 2018
IN THE COURT OF THE XLI ADDL.CITY CIVIL JUDGE
AT BANGALORE [CCH.No.42]
PRESENT: SRI.BASAVARAJ B.COM., LL.M.
XLI Addl. City Civil Judge
Dated this the 31st day of July 2018
O.S.No.9301/2014
PLAINTIFF : Rajanikanth.B.Shah
Aged about 62 years
S/o Babulal P.Shah
R/at No.23, 2nd Floor
Chandralok Apartment
5th Cross, Gandhinagar
Bangalore-560 009
(By Sri.B.B., Advocate)
V/s.
DEFENDANT : K.Subramani
Aged about 66 years
S/o Late Kannan
R/at No.52 (Previously portion of property
bearing old No.62/3)
C.K.C. Garden Lalbagh Road
Bangalore-560 027
Also at:
M/s Techno Powder Coaters
No.20, M.G.Industrial Estate
1st Cross, Pukhraj Layout
Adugodi
Bannerghatta Road
Bangalore-560 030.
(By Sri.N.C.S., Advocate)
Date of Institution of the Suit: 01.12.2014
Nature of the suit
(Suit on Pronote, suit for Possession
declaration & possession, suit
for injunction)
Date of commencement of 24.08.2015
recording of evidence:
Date on which the Judgment 31.07.2018
was pronounced:
Total Duration: Year/s Month/s Day/s
03 07 30
O.S.No.4073/2017
PLAINTIFF : K.Subramani
Aged about 66 years
S/o Late Kannan
R/at No.52 (Previously portion of property
bearing old No.62/3)
C.K.C. Garden Lalbagh Road
Bangalore-560 027
(By Sri.S.R.S., Advocate)
V/s.
DEFENDANT : Rajanikanth.B.Shah
Aged about 62 years
S/o Babulal P.Shah
R/at No.23, 2nd Floor
Chandralok Apartment
5th Cross, Gandhinagar
Bangalore-560 009
(By Sri.H.S.S. Advocate)
Date of Institution of the Suit: 19.06.2017
Nature of the suit
(Suit on Pronote, suit for Declaration
declaration & possession, suit
for injunction)
Date of commencement of 23.10.2017
recording of evidence:
Date on which the Judgment 31.07.2018
was pronounced:
Total Duration: Year/s Month/s Day/s
01 01 12
JUDGMENT
The plaintiff of OS.9301/2014 has filed this suit to directing the defendant to vacate and hand over vacant possession of the suit schedule property to him and to pay damages of a sum of Rs.25,000/- per month from the date of the suit till he vacates and hands over vacant possession of the suit schedule property and to pass such other reliefs.
2. The suit schedule property as described in the plaint is as under:-
SCHEDULE All that piece and parcel of land and building situated in the 1st floor of the property bearing No.52 (Previously portion of property bearing old No.62/3) C.K.C. Garden, 2nd Cross (previously 1st Cross, Lalbagh Road), Bangalore-560 027, approximately measuring 1000 sq.ft. and bounded on:
East by : Private property
West by : Private property
North by : Road
South by : Road
3. The plaint averments in brief is as under:
The defendant sold an immovable property to the plaintiff, which is partly commercial and partly residential meaning while ground floor being commercial first floor is residential. This property was sold by the defendant, who is the owner of the said property, to the plaintiff by a registered sale deed dated 5.8.2013. The property measures east to west: 16 feet and north to south: 108 feet in all SFT along with building consisting of ground floor and first floor property. The entire sale price was paid by cheques except Rs.54,000/-, which was paid to the Income Tax Department.
On the same date, the defendant handed over the physical possession of the ground floor portion and constructive possession of the 1st floor portion wherein he is living.
On the date of sale, as well as earlier, the defendant had made a request to stay for few months in the first floor as the accommodation he had made needed white washing and also he needed some breathing time to pack his articles and shift. The plaintiff agreed for the request and permitted the defendant to stay in the first floor of the premises for few months only. Therefore, the defendant was in "permissive possession" of the residential portion of the first floor premises of the schedule property till now. The defendant is neither a tenant nor a mortgagee under the plaintiff, only permission for few months stay was given.
In the circumstances, the defendant is in possession of the residential portion of the first floor of the schedule property by way of permissive possession. No rent is being charged or advance received.
The time given to the defendant came to an end long ago. Inspite of the expiry of long period, the defendant has not vacated and handed over the physical vacant possession nof the first floor premises under his occupation. Now he is unauthorized possession and occupation of the schedule premises.
The plaintiff purchased this property as he needed the entire portion urgently for his business and to accommodate his son, who is mainly running the business of wires of different types. His son runs this business in the ground floor and needs the upstairs portion for living with his family.
The defendant failed and neglected to keep up his promise. Since many oral requests and demands did not bring any results, the plaintiff issued a lawyer's notice dated 7.10.2014 at two places, which the defendant received on 11.10.2014 and 8.10.2014, one at his residence and the other at his workplace respectively. To date, the defendant has not replied to the said legal notice issued by plaintiff.
Since the defendant is in unauthorized occupation, he is liable to pay Rs.25,000/ p.m. towards damages for use and occupation of the schedule property from the date of this suit till he vacates. Hence prays to decree the suit.
4. Upon service of summons, the defendant appeared before the court through his counsel and filed written statement contending that this suit is not at all maintainable, as there exists no land lord and tenant relationship between the plaintiff and the defendant. The defendant at no point of time became the tenant under the plaintiff and defendant has never attorn the plaintiff as landlord, and there is no rental agreement between the plaintiff and defendant, neither the plaintiff executed any rental agreement in favour of the plaintiff nor the defendant has entered into any rental agreement with the plaintiff in respect of the suit schedule property. Since there exists no relationship of land lord and the tenant between the parties to the suit and since the plaintiff has never attorn the tenancy in favour of defendant the above suit is not at all maintainable.
The plaintiff has not shown the correct schedule with measurements and boundaries. The defendant is the absolute owner of the suit schedule property. The defendant approached the plaintiff for financial help for his son's marriage. At that point of time the plaintiff stated that he was ready to give finance subject to mortgaged the suit schedule property in his favour. Accordingly, the defendant has mortgaged the suit schedule property in favour of plaintiff with a condition that no longer the amount is repaid the mortgage deed shall stand cancelled or it become null and void. The defendant never sold the suit schedule property in favour of the plaintiff. The defendant even now enjoying the suit schedule property as absolute owner and is ready to discharge the mortgage executed in favour of the plaintiff. In fact, the defendant has many times expressed to the plaintiff about his readiness and willingness to get the mortgage deed cancelled, but the plaintiff went on postponing the same on one pretext or the other. Hence, prayed to dismiss the suit.
5. The plaintiff of OS.4073/2017 has filed this suit to cancel the sale deed dated 5.8.2013 bearing Document No.3987/2013-14 and consequently declare that a sum of Rs.54/ lakhs paid by the defendant to the plaintiff is a mortgage debt and direct the defendant to receive the mortgage loan of Rs.54,00,000/- with 12% p.a. from 5.8.2013 on or before 4.8.2019 from him and further direction to the defendant to hand over all the title documents of the schedule property to him on or before 4.8.2019, declare that he is the absolute owner of the suit schedule property and to pass such other reliefs.
6. The suit schedule property as described in the plaint is as under:-
SCHEDULE All that piece and parcel of the partly residential (50%) and partly commercial (50%) property bearing New No.52 measuring east to west: 16 feet and north to south: 108 feet in all measuring 1,728 sq.ft. along with building consisting of ground and first floor, having 1350 sq.ft. and 900 sq.ft. respectively and the building constructed of RCC, Red Oxide Flooring, Jungle Wood Windows and Doors situated at II Cross, CKC Garden, Bengaluru and bounded on:
East by : Private property
West by : Private property
North by : Road
South by : Road
7. The plaint averments in brief is as under:
The plaintiff is the absolute owner of the commercial and partly residential suit schedule property. The plaintiff purchased the schedule property from its previous owners by virtue of registered sale deed dated 14.3.1974 and eversince then he is in peaceful possession and lawful enjoyment of the same.
The plaintiff's wife Meenakumari died during 1984 and both of them had 5 children. After the death of the first wife, he was married to Malliga and through his second wife, the plaintiff has got another 6 children. Hence, the plaintiff has got a heavy responsibility towards his family. As such, the plaintiff is a hardworking man and is running a small factory under the name and style of M/s Techno Powder Coaters, Adugodi, Bangalore.
The defendant approached him during April 2013 with a request to let out the ground floor property for rent. The plaintiff agreed for the same and as such by virtue of the oral understanding between the parties, the defendant was inducted as a tenant of the ground floor of the schedule property. There is no written rent agreement as such. The monthly rent was fixed at Rs.20,000/- and since the defendant presumably wanted to show in his balance sheet that he is under tenancy. He wrote a letter dated 19.6.2013 to the plaintiff, thereby endorsed the payment of a sum of Rs.40,000/- through cheque towards the monthly rent. This is also because of the reason that the defendant also expressed that he will be occupying the ground floor of the schedule property for a short while is yet another reason for having not executed any rent agreement.
Due to various requirements i.e. both family, domestic and personal, he had a financial crunch during the relevant point of time when the defendant had become the tenant and many a times the plaintiff used to express the same to the defendant. The growing needs of the family slowly and gradually made the plaintiff to worry as his children had come to the age of the marriage. The defendant at a point of time had become a good friend and well wisher to the plaintiff. Hence, the plaintiff approached the defendant with a request to lend him the hand loan of about 50 lakhs and the plaintiff proposed that he is willing deposit the title deeds of the schedule property as security for the hand loan and promised the defendant that he shall be obliged to redeem the mortgage within 6 years i.e. on or before 4.8.2019. The defendant agreed for the same and as such on 5.8.2013 called the plaintiff to the Sub-Registrar office for signing the mortgage deed. The plaintiff did not doubt about the credentials of the defendant at that point of time and he was accompanied by his wife Smt.Malliga to the Sub-Registrar Office. The defendant told the plaintiff that he is paying Rs.54/ lakhs as hand loan repayable within 6 years from the date of the said mortgage deed dated 5.8.2013. The plaintiff received a sum of Rs.54/ lakhs from the defendant on various dates and on 5.8.2013 the plaintiff also handed over all the original documents pertaining to the suit schedule property to the defendant.
He was always thankful to the defendant for the timely help. The plaintiff utilized every single rupee of the hand loan so lent by the defendant. The plaintiff had carefully planned that by improving his business he could concentrate more and more for the further expansion of his business since he was relieved by the financial crisis which would also ensure him to clear off mortgage debt with the defendant.
When such being the scenario, the plaintiff was shocked to receive the court summons during April 2015 pertaining to OS.9301/2014, which is a suit filed by the defendant. In this suit, the defendant has alleged that "on 5.8.2013 the plaintiff sold the schedule property in its entirety by virtue of registered sale deed executed on 5.8.2013 for the sale consideration of Rs.54 lakhs" and that the plaintiff requested the defendant he would like to stay for few months in the first floor as he needed some breathing time to pack his belongings and shift for which the defendant agreed and permitted the plaintiff to stay in the first floor of the premises and that the defendant was in permissive possession till now and as such has prayed for a decree to hand over vacant possession along with damages of Rs.25,000/- p.m. The plaintiff was shocked to see the contents of the suit and as such applied for the certified copy of the alleged sale deed and got the same on 3.11.2015. The contents of the alleged sale deed are absolutely unknown to the plaintiff and as such the plaintiff was only given to understand that the sum of Rs.54 lakhs i.e. shown in the sale deed is indeed the hand loan. The defendant by suppressing the fact that he is getting the sale deed executed, mis-represented the plaintiff taking undue advantage of the trust and faith reposed by the plaintiff, managed to get the sale deed executed which is nothing but a sham document.
The defendant always gave an understanding to the plaintiff that the plaintiff himself is the absolute owner thereof and the defendant is only a mortgagee. Even the electricity and water connection as on date remains in the name of the plaintiff. If really the plaintiff sold the schedule property by virtue of the sale deed nothing prevented the defendant to change electricity and water connection from the plaintiff name to his name.
At no point of time he had the intention to sell the suit schedule property to the defendant. The sale deed dated 5.8.2013 is without the consent and concurrence of the plaintiff and it is liable to be cancelled. The plaintiff is ready to discharge the mortgage debt to the defendant with interest @ 12% p.a. within 6 years from 5.8.2013. The plaintiff has got one more site at Koramangala, which he is intending to sell and use the sale consideration received thereof to discharge the mortgage debt with interest. Hence, prayed to decree the suit.
8. The defendant appeared before the court through his counsel and filed written statement contending that the present suit is filed as a counterblast to the earlier suit filed by defendant against the plaintiff in OS.9301/2014. The plaintiff in the present suit has got subsisting right, title or interest over the suit schedule property. The plaintiff has sold and conveyed the entire suit schedule property to him has not retained any right or title whatsoever over the suit schedule property. Pursuant to the sale deed dated 5.8.2013 executed by plaintiff and in favour of him, all the revenue records in respect of the entire suit schedule property is changed/transferred in his name. Further, the concerned revenue authority of the BBMP has issued a khatha extract and khatha certificate both dated 30.4.2014 in respect of the suit schedule property in his favour. Eversince the date of purchase of the schedule property by him, he is paying revenue taxes in respect of the suit schedule property.
He has purchased the suit schedule property from plaintiff by paying a valuable agreed sale consideration amount i.e. sum of Rs.54,00,000/- in the following manner:
i) A sum of Rs.5,00,000/- by way of cheque bearing No.510254 dated 10.4.2013 drawn on Syndicate Bank, Gandhinagar Branch, Bengaluru
ii) A sum of Rs.15,00,000/- by way of cheque bearing No.510269 dated 18.6.2013 drawn on Syndicate Bank, Gandhinagar Branch, Bengaluru
iii) A sum of Rs.5,00,000/- by way of cheque bearing No.157627 dated 10.7.2013 drawn on Syndicate Bank, Gandhinagar Branch, Bengaluru
iv) A sum of Rs.28,46,000/- by way of cheque bearing No.157631 dated 1.8.2013 drawn on Syndicate Bank, Gandhinagar Branch, Bengaluru
v) A sum of Rs.54,000/- paid towards the TDS into the income tax PAN of the plaintiff.
The wife of the plaintiff i.e. Smt.K.Malliga is a witness to the aforesaid sale transaction vide sale deed dated 5.8.2013.
On the execution of the registered sale deed dated 5.8.2013 the plaintiff has put him into the actual physical possession of the ground floor of the suit schedule property and has put him into the constructive possession of the first floor portion of the schedule property. As on the date of sale of the suit schedule property i.e. 5.8.2013 the plaintiff was actually residing with his family in the first floor of the suit schedule property. The plaintiff requested him that the he has made arrangements for the alternate accommodation and the plaintiff requires couple of months to deliver the physical possession of first floor of the suit schedule property. The plaintiff further promised him that the plaintiff would vacate and hand over the vacant possession of the 1st floor portion of the schedule property within couple of months. He by sympathizing the plaintiff and on a humanitarian consideration honour the request of the plaintiff and permitted the plaintiff to continue the occupation of first floor of the suit schedule property as requested by plaintiff.
The plaintiff failed to vacate the premises as promised and betrayed the trust and confidence reposed by the defendant on the plaintiff. In view of which, he had issued a legal notice dated 7.10.2014 to the plaintiff calling upon the plaintiff and his family members to vacate and hand over the vacant possession of the first floor portion of the suit schedule property. The plaintiff despite of the receipt of the said notice has failed to issue any reply till to this date. The defendant thereafter filed a suit against the plaintiff in OS.9301/2014.
The plaintiff purchased the schedule property from its previous owners by virtue of registered sale deed dated 14.3.1974, is true and correct.
The plaintiff's son by name Mr.Kalpesh.R.Shah was the tenant and not this defendant. There is no written rent agreement as such. The monthly rent was fixed as Rs.20,000/- is admitted as true and the letter dated 19.6.2013 addressed to the plaintiff by the son of him is also admitted as true. The said tenancy came to an end on the plaintiff executing registered absolute sale deed dated 5.8.2013 conveying the entire schedule property unto this defendant. It is admitted as true that the plaintiff received a sum of Rs.54 lakhs from the defendant on various dates and on 5.8.2013 the plaintiff also handed over all the original documents pertaining to the suit schedule property and the defendant pursuant to the execution of the registered absolute sale deed conveying the schedule property to him.
Hence, prayed to dismiss the suit.
9. On the basis of the above pleadings of both the parties, the following issues have been framed in OS.9301/2014:
ISSUES
1. Whether the plaintiff proves that the defendant is in permissive possession of the suit schedule property?
2. Whether the defendant proves that he has mortgaged the suit schedule property in favour of plaintiff with a condition that no longer the amount is repaid the mortgage deed shall stand cancelled or it becomes null and void?
3. Whether the plaintiff is entitled for the relief sought for?
4. What Decree or Order?
10. On the basis of the above pleadings of both the parties, the following issues have been framed in OS.4073/2017:
ISSUES
1. Whether the plaintiff proves that he approached the defendant with a request to lend him the hand loan of about Rs.50,00,000/- by the depositing title deeds of the suit schedule property as security for hand loan and promised the defendant he shall be obliged to redeem the mortgage within 6 years i.e. on or before 04.08.2009 and for that defendant agreed and defendant called him to the office of Sub-
Registrar for signing the mortgage deed and he was also accompanied by his wife and there the defendant told him that he is paying Rs.54,00,000/- as hand loan repayable within 6 years from the date of mortgage deed dated 05.08.2013 and he received Rs.54,00,000/- from the defendant on various dates and on 05.08.2013 he has also handed over all the original documents of the suit schedule property to the defendant and he was shocked to receive the summons in O.S.No. 9301/2014 and contents of it and the contents of the alleged Sale Deed are absolutely unknown to him and as such he was only given to understand that the sum of Rs.
54,00,000/- shown in the Sale Deed is indeed the hand loan and defendant suppressing the fact that he is getting the Sale Deed executed and misrepresented him taking undue advantage of the trust and faith reposed by him managed to get the Sale Deed executed which is nothing but sham document as contended in Para No. 6 to 9 of the plaint?
2. Whether the defendant proves that he has purchased suit schedule property from the plaintiff under the registered Sale Deed dated 5.8.2013 by paying valuable sale consideration of Rs. 54,00,000/- ?
3. Whether the defendant further proves that after execution registered Sale Deed dated 5.8.2013 the plaintiff put him actual physical possession of ground floor of the suit schedule property and has put him to into the constructive possession of the first floor portion of the suit schedule property and he was actually residing with his family members in the first floor of the suit schedule property and he requested the plaintiff to make arrangements for alternate accommodation and plaintiff requires couple of months to deliver physical possession of the first floor of the suit schedule property and plaintiff promised him that he would vacate and hand over the vacant portion of the first floor of the suit schedule property within couple of months and on humanitarian grounds he permitted the plaintiff to continue in the first floor as he requested and thereby the plaintiff is permissive possession of the first floor portion of the suit schedule property?
4. Whether the plaintiff is entitle for reliefs sought for?
5. What order or decree?
11. The plaintiff in OS.9301/204 in order to prove the case examined himself as PW1 and got marked Ex.P.1 to P.9. Thereafter, OS.9301/2014 clubbed with OS.4073/2017. After clubbing the above suits, PW1 filed his additional affidavit with respect to OS.4073/2017 and got marked Ex.P.10 to P.14. The defendant in order to prove both the suits examined himself as DW1 and got marked Ex.D.1 to D.33.
12. Heard the arguments and perused the records of the case.
13. My findings to the above issues in OS.9301/2014 are as under:
Issue No.1 : In the affirmative
Issue No.2 : In the negative
Issue No.3 : Partly in the
affirmative
Issue No.4 : As per the final order,
for the following;
14. My findings to the above issues in OS.4073/2017 are as under:
Issue No.1 : In the negative
Issue No.2 & 3 : In the affirmative
Issue No.4 : In the negative
Issue No.5 : As per the final order,
for the following;
REASONS
15. ISSUE Nos.1 AND 2 OF OS.9301/2014 & ISSUE
NOs.1 TO 3 OF OS.4073/2017:- Since these Issues are
interconnected and hence they are taken up together for common discussion in order to avoid repetition of facts and evidence.
16. The plaintiff of OS.9301/2014 by name Rajanikanth.B.Shah filed the suit against the defendant - Subramani.K and during the pendency of the suit, the defendant - Subramani.K filed OS.4073/2017 against the said plaintiff - Rajanikanth.B.Shah. Thereafter the OS.4073/2017 was clubbed with OS.9301/2014 as both the parties are same and with respect to the same subject matter and thereafter common evidence was recorded in OS.9301/2014. For the sake of convenience, I would like to refer the rank of parties as per OS.9301/2014. In OS.4073/2017 the house property bearing New No.52 consisting of ground floor and first floor in the suit schedule property and in this judgment it is referred as entire property. In OS.9301/2014 only first floor of the house property bearing New No.52 is the suit schedule property and hence in the judgment the same is referred as first floor property.
17. The plaintiff filed his affidavit in lieu of examination-in- chief of PW1, wherein he has reiterated the averments made in the plaint of OS.9301/2014 and written statement of OS.4073/2017 and in support of his case produced Ex.P.1 to P.14. Ex.P.1 - c/c of sale deed dated 5.8.2013, Ex.P.2 - office copy of legal notice dated 7.10.2014, Ex.P.3 and P.4 - postal acknowledgments, Ex.P.5 - original sale deed dated 5.8.2013, Ex.P.6 - khatha certificate, Ex.P.7 - katha extract, Ex.P.8 - tax paid receipt, Ex.P.9 - encumbrance certificate, Ex.P.10 and P.11 - advance receipts, Ex.P.12 - RTI application, Ex.P.13 - counterfoil of postal order and Ex.P.14 - application.
18. The defendant filed his affidavit in lieu of examination- in-chief of DW1, wherein reiterated the averments made in the written statement of OS.9301/2014 and plaint of OS.4073/2017 and in support of his case got marked Ex.D.1 to D.33. Ex.D.1 - c/c of sale deed dated 14.3.1974, Ex.D.2 - family tree, Ex.D.3 - letter, Ex.D.4 - loan closure letter, Ex.D.5 to D.10 - electricity bills, Ex.D.11 to D.16 - electricity bill paid receipts, Ex.D.17 an D.18 - Bangalore Water Supply and Sewerage Board Bills, Ex.D.19 and 20
- Bangalore Water Supply and Sewerage Board bill paid receipts, Ex.D.21 - metered ledger report of Bangalore Water Supply and Sewerage Board, Ex.D.22 - c/c of sale deed dated 5.8.2013, Ex.D.23 to 31 - bills, Ex.D.32 - wedding invitation and Ex.D.33 - letter to the revenue officer.
19. It is admitted fact that the defendant was the owner of the entire property bearing new no.52 shown in OS.4073/2017.
20. The learned Advocate appearing for the plaintiff argued that the defendant was the owner of the entire property, which is consisting of first floor and the ground floor and plaintiff purchased the same by paying sale consideration of Rs.54,00,000/- and on the same day the defendant handed over the physical possession of the ground floor and constructive possession of first floor, where he was residing and since the defendant made request to permit him to stay for few months in the first floor and hence he was permitted to stay for few months, but he failed to keep up his promise.
21. The learned Advocate appearing for the defendant argued that the plaintiff approached him during April 2013 to let out the ground floor property and by virtue of oral understanding the plaintiff was inducted as tenant of the ground floor fixing the monthly rent of Rs.20,000/- p.m. The defendant was in need of money for the marriage of his daughter and in all the plaintiff paid the amount of Rs.54,00,000/- to him on various dates. When the defendant received the summons in OS.9301/2014, then he was shocked and the defendant was absolutely unknown that he sold the entire property under sale deed and the plaintiff misrepresenting and taking undue advantage of the trust and faith the defendant got executed the sale deed with respect to the property. The plaintiff always gave an understanding to the defendant that he is the absolute owner of the entire property and he is only the mortgagee.
22. It is the case of the plaintiff that the defendant sold the entire property under the registered sale deed dated 5.8.2013 by paying the amount of Rs.54,00,000/- and thereby he became absolute owner of it and the defendant handed over physical possession of the ground floor and constructive possession of the first floor, wherein he is living and on the date of sale the defendant made request to permit him to stay in the first floor for few months and accordingly he agreed for the same, but the defendant did not keep up his promise and deliver the vacant possession of the first floor and sought the reliefs to direct the defendant to vacate and hand over the vacant possession of the property and direct him to pay damages of Rs.25,000/- p.m. from the date of the suit till he vacates and hand over the vacant possession of it.
23. It is the case of the defendant that the plaintiff was the tenant in the ground floor for rent on oral understanding on monthly rent of Rs.20,000/- and he had financial crisis and hence he has taken hand loan of Rs.54,00,000/- from the plaintiff on different dates and he never sold the entire property to the plaintiff and when he has received the suit summons of OS.9301/2014, then he shocked to know that the plaintiff got obtained the sale deed by misrepresenting and taking undue advantage of the trust and faith reposed in him and sought the reliefs for cancellation of the sale deed and to recover the possession and to declare him as owner of the suit schedule property.
24. In view of the rival contentions between the parties, for the sake of convenience, firstly I would like to consider that whether the plaintiff purchased the entire property from the defendant or whether the defendant executed mortgage deed in favour of the plaintiff.
25. As stated above, it is the case of the plaintiff that he has purchased the entire property from the defendant under registered sale deed dated 5.8.2013 by paying the sale consideration of Rs.54,00,000/- on different dates. The Ex.P.5 - original registered sale deed dated 5.8.2013 reveals that the defendant sold the entire property in favour of the plaintiff for Rs.54,00,000/-. The defendant admits his signature on the Ex.P.5 and also admits the signature of his wife on it as attestor.
26. For the sake of clarity I would like to reproduce the averments made in the written statement by the defendant with respect to mortgage etc in O.S. 9301/2014 which is as under:
"This defendant approached the plaintiff for financial help for his son's marriage. At that point of time the plaintiff stated that he was ready to give finance subject to mortgage the suit schedule property in his favour. Accordingly, the defendant has mortgaged the suit schedule property in favour of plaintiff with a condition that no longer the amount is repaid the mortgage deed shall stand cancelled or it become null and void. The defendant never sold the suit schedule property in favour of the plaintiff. The defendant even now enjoying the suit schedule property as absolute owner and is ready to discharge the mortgage executed in favour of the plaintiff. In fact, the defendant has many times expressed to the plaintiff about his readiness and willingness to get the mortgage deed cancelled, but the plaintiff went on postponing the same on one pretext or the other.......
This defendant approached the plaintiff for financial help for his urgent financial commitment. The plaintiff stated that he was ready to give finance subject to mortgage the suit schedule property in his favour. Accordingly, this defendant has mortgaged the suit schedule property in favour of the plaintiff and not sold the suit schedule property in favour of the plaintiff. The defendant is the absolute owner of the suit schedule property and he is ready and willing to discharge the mortgage executed in favour of plaintiff".
27. If the facts pleaded by the defendant in OS.9301/2014 is taken into consideration that as stated above, it is the case of the defendant that the plaintiff stated before him that he was ready to give finance subject to mortgage of the suit schedule property in his favour. In this regard, atleast there is no suggestion to the PW1 that plaintiff was ready to give finance subject to mortgage of the entire property. In OS.9301/2014 the suit schedule property is only the first floor property. The defendant has not specifically stated that under the guise of mortgage deed the plaintiff has obtained sale deed from him. There is atleast no suggestion to the PW1 that still the defendant is owner of the suit schedule property and the defendant expressed his readiness and willingness to get the mortgage deed cancelled. From the answer given by the defendant during the course of cross-examination it is clear that he studied upto SSLC and he is a electrical technician by profession and running the firm of M/s Techno Powder Quarters, which is having the annual turn over of Rs.50 lakhs to Rs.60 lakhs. Henc, as per exception to Section 19 of Indian Contract Act on going through the sale deed defendant can easily make out that it is not the mortgage deed and with ordinary diligence he can make out that it is the sale deed. Even for the arguments sake it is taken that it is a mortgage deed, then the defendant would have delivered vacant possession of the entire property in favour of the plaintiff. In this regard also there is no pleading in the written statement. The defendant contended in written statement of OS.9301/2014 that he has mortgaged the suit schedule property in favour of the plaintiff with a condition that no longer the amount is repaid, the mortgage deed stand cancelled or it becomes null and void. In this regard, there is no cross-examination to the PW1. When the defendant admits his signature on the sale deed, then atleast there would have been suggestion to the PW1 that the defendant signed on the sale deed thinking that it is a mortgage deed. Hence it cannot be accepted that the plaintiff misrepresenting the defendant obtained sale deed in place of mortgage deed.
28. For the sake of clarity I would to like to reproduce the averment made by the defendant in the plaint of O.S. 4073/2017 with respect to the hand loan etc which is as under:
"The plaintiff submits that due to various
requirements i.e. both family, domestic and
personal, he had a financial crunch during the relevant point of time when the defendant had become the tenant and many a times the plaintiff used to express the same to the defendant. The growing needs of the family slowly and gradually made the plaintiff to worry as his children had come to the age of the marriage. The defendant at a point of time had become a good friend and well wisher to the plaintiff. Hence, the plaintiff approached the defendant with a request to lend him the hand loan of about 50 lakhs and the plaintiff proposed that he is willing deposit the title deeds of the schedule property as security for the hand loan and promised the defendant that he shall be obliged to redeem the mortgage within 6 years i.e. on or before 4.8.2019. The defendant agreed for the same and as such on 5.8.2013 called the plaintiff to the Sub-Registrar office for signing the mortgage deed. The plaintiff did not doubt about the credentials of the defendant at that point of time and he was accompanied by his wife Smt.Malliga to the Sub-Registrar Office. The defendant told the plaintiff that he is paying Rs.54/ lakhs as hand loan repayable within 6 years from the date of the said mortgage deed dated 5.8.2013. The plaintiff received a sum of Rs.54/ lakhs from the defendant on various dates and on 5.8.2013 the plaintiff also handed over all the original documents pertaining to the suit schedule property to the defendant............
The contents of the alleged sale deed are absolutely unknown to the plaintiff and as such the plaintiff was only given to understand that the sum of Rs.54 lakhs i.e. shown in the sale deed is indeed the hand loan. The defendant by suppressing the fact that he is getting the sale deed executed, mis-represented the plaintiff taking undue advantage of the trust and faith reposed by the plaintiff, managed to get the sale deed executed, which is nothing but a sham document.
The defendant always gave an understanding to the plaintiff that the plaintiff himself is the absolute owner thereof and the defendant is only a mortgagee."
29. So, the defendant in OS.4073/2017 of the plaint stated many new facts, which were not stated in the written statement of OS.9301/2014. In the plaint of OS.4073/2017, the defendant for the first time stated that the plaintiff became his good friend and he is well wisher of him and further introduced new case that the defendant had requested the plaintiff to give hand loan of Rs.50,00,000/- and he is willing to deposit the title deeds of the property as a security for the hand loan, which is repayable within 6 months i.e. on or before 4.8.2019 and for that he agreed and he did not doubt about the credentials of the plaintiff and he has handed over all the original documents to the plaintiff and he was unaware of the contents of the alleged sale deed and he was only given to understand that the amount of Rs.54,00,000/- shown in the sale deed is a hand loan and the plaintiff by suppressing the fact that he has misrepresented him taking undue advantage of the trust and faith reposed by him. Hence, any of the averments made in the plaint of OS.4073/2017 apart from the averments made in the written statement of OS.9301/2014 has to be treated that it is only after thought and any of the contentions taken by the defendant in OS.4073/2017 cannot be taken into consideration.
30. For the sake of arguments I would like to consider the case of the defendant as contended in O.S. No. 4073/2017. As per the case of the defendant the plaintiff given the amount of Rs.54,00,000/- to him is taken into consideration, a reasonable prudent man cannot accept that Rs.54,00,000/- may be given as hand loan as the defendant has not shown that himself and the plaintiff are millionaires so as to take and give such a big amount of Rs.54,00,000/- as hand loan. Further, it is came in the cross- examination of the PW1 that in all he received Rs.50,00,000/- from the plaintiff and shown the same as loan in the income tax returns for the assessment year 2014-15. If that is so, then the defendant would have produced the acknowledgment regarding filing of income tax returns to show that the amount received from the plaintiff is a loan. Hence, adverse inference has to be drawn that since the defendant did not show the amount of Rs.54,00,000/- as loan and hence he has not produced the income tax returns for the assessment year 2014-15 to the Court. It is also came in the cross- examination of DW1 that the plaintiff paid the TDS of Rs.54,000/- and the same is deducted from his PAN account and at the time of signing the Ex.P.1 he knew that the TDS of Rs.54,000/- was paid by the plaintiff. Since this amount of Rs.54,000/- was deducted as TDS with respect to the sale of the entire property and hence now the defendant cannot contend that it was not a sale and it was mortgage. Further, from the cross-examination of DW1 it is clear that he has admitted his signature on Ex.P.10 and P.11 - advance receipt, wherein it is clearly mentioned that the amount mentioned therein was paid towards the sale of entire suit schedule property. It is clear from the further cross-examination of DW1 that he paid the tax of the entire property till 2012-13 and he did not pay the tax after execution of the sale deed. If the defendant did not sell the entire property, then he would have paid the tax to the entire property. It is also clear from the further cross-examination of DW1 that he pleaded ignorance with respect to the giving of papers for the change of khatha of the entire property in the name of the plaintiff and admits that after receiving the legal notice from the plaintiff he came to know that there was change of khatha of the entire property in the name of plaintiff and for that he has not objected, which shows that since the defendant sold the entire property and hence he has not objected. From Ex.P.14 it is clear that the defendant has signed on the application of BBMP to transfer the khatha of the entire property in the name of the plaintiff. The Ex.P.2 discloses the issuance of legal notice by the plaintiff calling upon the defendant to vacate the first floor as he purchased the entire property and the same is admittedly served on the defendant, but he has not given the reply to it and he voluntarily deposed that he has spoken with the plaintiff. When the plaintiff specifically contended that the sale of entire property by the defendant, then if the sale is false and it is mortgage, he would have given reply to it and he would not have waited to say the same till filing of the written statement in OS.9301/2014.
31. When the defendant alleges misrepresentation and also taking undue advantage of the trust and faith obtained registered sale deed from him, then the defendant has to specifically plead in the written statement and also to prove the same as per section 18 of the Indian Contract Act. So, also during the course of cross- examination of PW1 atleast there is no suggestion to him, how and in which manner the defendant reposed trust and faith on the plaintiff. Hence, it cannot be said that the plaintiff taking undue advantage of the trust and faith managed to get the sale deed from the defendant.
32. The learned Advocate appearing for the defendant submitted that there is mistake in recording the deposition and drawn the attention of the court to the following sentences of the deposition of DW1, which are as under:
"It is not true to suggest that there was no loan transaction between me and the plaintiff.
It is not true to suggest that I sold the suit schedule property to the consideration................
It is true to suggest that after execution of Ex.P.1, I requested to grant some time to vacate the first floor of the suit schedule property."
33. With respect to the above first sentence of the above deposition of DW1 is concerned, it is not the case of the plaintiff that there was no loan transaction between him and the defendant. Hence, it can be said that the word 'not' is appeared by mistake and typographical error in rush of work. So, also in the second sentence of the above deposition of DW1 that the word 'defendant' is missing and hence this can also be stated by mistake and typographical error it was left. With respect to the last sentence of the above cross-examination is concerned, in that sentence there is no addition of any word or omission of any word. While recording the deposition it is possible to add any word in the sentence or omit any word in the sentence and not the entire sentence. Hence, from the last sentence, it is very clear that after execution of Ex.P.1, the defendant requested the plaintiff for some time to vacate the first floor. Even the defendant during the course of cross-examination pleaded ignorance that the plaintiff allowed him to stay in the first floor of humanitarian ground and he is bound to vacate and hand over the first floor and he has not denied the same. From this, an inference has to be drawn that since the defendant sold the entire property and at the request of him the plaintiff permitted to stay on humanitarian grounds.
34. The learned Advocate appearing for the defendant vehemently argued that the guidelines value of the suit schedule property in the year 2013 was Rs.3,000/- to Rs.3,500/- per sq.ft. and the total extent of the suit schedule property was 1,728/- sq.ft., which consists of ground floor and first floor, then the value of the property is more than Rs.1,00,00,000/-. Hence, it cannot be said that the defendant sold the entire property to the plaintiff.
35. On perusal of the cross-examination of PW1, it is came that in the year 2013, the guidelines value was Rs.3,000/ to Rs.3,500/- per sq.ft. and he pleaded ignorance with respect to the value of the first floor and ground floor and he pleaded ignorance that the value of the suit schedule property was Rs.10,000/- to Rs.12,000/- per sq.ft. When the defendant is disputing the guidelines value of the entire property, then he would have produced the documents to that effect and only suggested to the PW1 that the ground floor and first floor of the building in the year 2013 was Rs.20,00,000/- Moreover the defendant has to plead and prove that the plaintiff played fraud on him to sell the entire property for lesser amount. Hence, it cannot be said that the valuation shown in the Ex.P.5 is not correct.
36. So, viewed from any angle it cannot be said that the plaintiff misrepresented the defendant and taking undue advantage of the trust and faith reposed in him managed to get the sale deed from the defendant in place of mortgage deed and it has to be held that the plaintiff purchased the suit schedule property under the Ex.P.5 by paying the sale consideration of Rs.54,00,000/-.
37. When I came to the conclusion that the defendant sold the entire property under the Ex.P.5 for Rs.54,00,000/- and as stated above, in the plaint it is stated that the plaintiff taken the constructive possession of the first floor and on the same day given the same to the defendant for stay of few months on humanitarian grounds. As stated above, the defendant pleaded ignorance with respect to the stay of him in the first floor on humanitarian grounds and he is bound to vacate and hand over it. Hence, it has to be held that the defendant is in permissive possession of the suit schedule property.
38. So, from the discussions made above, I am of the opinion that the defendant failed to prove that he has mortgaged the suit schedule property in favour of the plaintiff with a condition that no longer the amount is repaid the mortgage deed shall stand cancelled or it becomes null and void and the plaintiff lend him the hand loan of Rs.50,00,000/- by depositing title deeds, which has to be redeemed within 6 years and the plaintiff called him to Sub- Registrar Office to sign the mortgage deed, but he was shocked to receive summons in OS.9301/2014 and the contents of alleged sale deed is absolutely unknown to him and the plaintiff suppressed the fact that he is getting the sale deed executed and misrepresented him taking undue advantage of the trust and faith reposed in him and the plaintiff proved that he has purchased the entire property under registered sale deed dated 5.8.2013 by paying the valuable consideration of Rs.54,00,000/- and thereafter the defendant put him in actual physical possession of the ground floor and put him into the constructive possession of the first floor, where the defendant is actually residing with his family members and the defendant requested him to permit him to reside for couple of months till he gets alternate accommodation and promised to vacate the same within couple of months and on humanitarian grounds he permitted the defendant to continue in the first floor and the defendant is in permissive possession of the first floor. Hence, Issue No.1 of OS.9301/2014 and Issue No.2 and 3 of OS.4073/2017 are answered in the affirmative and Issue No.2 of OS.9301/2014 and Issue No.1 of OS.4073/2017 are answered in the negative.
39. ISSUE NO.3 OF OS.9301/2014 & ISSUE NO.4 OF OS.4073/2017: In view of my findings on Issue No.1 of OS.9301/2014 and Issue Nos.2 & 3 of OS.4073/2017 in the affirmative and in favour of the plaintiff and against the defendant, the plaintiff is entitle for the recovery of possession of first floor property from the defendant and the plaintiff has not placed any materials with respect to the damages sought and hence the plaintiff is not entitle for damages sought by him and in view of my findings on Issue No.2 of OS.9301/2014 and Issue No.1 in OS.4073/2017 in the negative and against the defendant, the defendant is not entitle for the reliefs sought in OS.4073/2017. Hence, Issue No.3 of OS.9301/2014 is answered partly in the affirmative and Issue No.4 of OS.4073/2017 is answered in the negative.
40. ISSUE NO.4 OF OS.9301/2014 & ISSUE NO.5 OF OS.4073/2017:- In the result, I proceed to pass the following:-
ORDER The suit of the plaintiff - Rajanikanth.B.Shah in OS.9301/2014 is partly decreed with costs.
The defendant - Subramani.K is directed to vacate and hand over vacant possession of the suit schedule property of OS.9301/2014 in favour of the plaintiff - Rajanikanth.B.Shah within two months from today.
The suit of the plaintiff - Rajanikanth.B.Shah in OS.9301/2014 for the relief of damages is dismissed.
The suit of the plaintiff - Subramani.K in OS.4073/2017 is dismissed with costs.
Draw decree accordingly.
The original judgment has to be kept in OS.9301/2014 and copy of the same has to be kept in OS.4073/2017.
(Dictated to the judgment writer on computer, thereafter corrected and then pronounced by me in the open court, on this the 31st day of July 2018).
( BASAVARAJ )
XLI ADDL.CITY CIVIL JUDGE
BANGALORE
ANNEXURE
I. List of witnesses examined on behalf of :
a) Plaintiff's side:
P.W.1 Rajanikanth.B.Shah
b) Defendants' side:
D.W.1 K.Subramani
II. List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P.1 C/c of sale deed dated 5.8.2013
Ex.P.2 Office copy of legal notice dated
7.10.2014
Ex.P.3 & 4 Two postal acknowledgment
Ex.P.5 Sale deed dated 5.8.2013
Ex.P.6 Katha certificate dated 30.4.2014
Ex.P.7 Copy of katha extract dated
30.4.2014
Ex.P.8 Tax paid receipt dated 24.4.2015
Ex.P.8 C/c of sale deed dt.10.10.1980
Ex.P.9 Encumbrance certificate
Ex.P.10 Advance receipt issued by defendant
Ex.P.10(a) Signature of defendant
Ex.P.11 Another advance receipt
Ex.P.11(a) Signature of defendant
Ex.P.12 RTI application dated 11.8.2017
Ex.P.13 Counter of postal order
Ex.P.14 Copy of application given by the
defendant to transfer the khatha
b) Defendant's side :
Ex.D.1 C/c of sale deed dated 14.3.1974
Ex.D.2 Family tree
Ex.D.3 Letter dated 19.6.2013
Ex.D.4 Loan closer letter of the KSFC Bank
Ex.D.5 to 10 6 Electricity bills
Ex.D.11 to 16 6 Electricity bill paid receipts Ex.D.17 & 18 Two Bangalore Water Supply and Sewerage Board Bills Ex.D.19 & 20 Two Bangalore Water Supply and Sewerage Board Bills paid receipts Ex.D.21 Metered ledger report of Bangalore Water Supply and Sewerage Board Ex.D.22 Copy of sale deed dated 5.8.2013 Ex.D.23 to 31 9 Bills issued by C.Krishnaiah Chetty Sons Ex.D.32 Wedding Invitation card Ex.D.33 Copy of letter written to the Revenue Officer ( BASAVARAJ ) XLI ADDL.CITY CIVIL JUDGE BANGALORE Digitally signed by BASAVARAJ DN: cn=BASAVARAJ, ou=GOVERNME NT OF BASAVARAJ KARNATAKA,o= HIGH COURT OF KARNATAKA,st= Karnataka,c=IN Date: 2018.07.31 17:29:26 IST