Bangalore District Court
Ms.M.Sarah Jemmi vs Smt.Manjula on 17 February, 2022
1 O.S.6079/2014
IN THE COURT OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE
AT BANGALORE CITY - CCH NO.23.
DATED THIS THE 17 th DAY OF FEBRUARY, 2022.
PRESIDING OFFICER
PRESENT : Sri.Mohan Prabhu
M.A., L.LM.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
O.S.No.6079/2014
PLAINTIFF/S: Ms.M.Sarah Jemmi,
D/o Mohan D,
Aged about 29 years,
R/at No.83,
Ramaiah road,
Ramaswamypalya,
MS Nagar post,
MS Nagar,
Bangalore - 33.
(By Sri.GVK, Advocate)
Vs.
DEFENDANT/S: Smt.Manjula,
W/o Keshava,
Aged about years,
R/at No.4, 11 th cross,
Thambuchetty palya main road,
2 O.S.6079/2014
Muniswar Nagar,
Ramamurthy Nagar extension,
Bangalore - 16.
(Sri.VKR, Advocate)
* * * * *
Date of institution of suit : 07.08.2014
Nature of suit : Ejectment
Date of commencement
of recording of evidence : 18.11.2015
Date on which the judgment
was pronounced : 17.02.2022
Duration of the suit :Year/s Month/s Day/s
07 06 10
JUDGMENT
1. The plaintiff has filed this suit against the defendant for ejectment and for damages praying to eject the defendant from suit schedule premises and to handover the vacant suit schedule premises in favour of the plaintiff and to direct the defendant to 3 O.S.6079/2014 pay damages of Rs.5,000/- per month towards rent from the date of suit till the vacation of the schedule premises.
SCHEDULE House premises No.4, 11 th cross, Thambuchetty palya main road, Munisjwar Nagar, Ramamurthy nagar extension, Bangalore - 16 consisting of one Hall, two Bedrooms, Kitchen, attached Bathroom and toilet with electricity and water facility.
2. The plaint averments briefly stated as follows:
In para No. 2 of the plaint the plaintiff stated that the property bearing Khatha No. 115 of Munisjwar Nagar measuring east to west 20 feet, north to south 38 feet granted in favour of plaintiff's father Sri.Mohan by the Chief Officer, ITI notified area committee, Krishnarajapuram on 25.1.1998 as 4 O.S.6079/2014 the said Mohan comes under the weaker section of society and he does not have movable and immovable property in his name. The concerned authorities have issued Hakkupatra under Ashraya Yojana. Subsequent to the issuance of Hakku Patra plaintiff's father Sri.Mohan was exercising his absolute ownership and in possession of the said property.
3. In para 3 of the plaint it is stated that the said property assigned as house property No. 115, assessment No. 292 situated at Munisjwar Nagar , Kowdenahalli village, K.R.Puram hobli, Bangalore east taluk, now comes under the limits of BBMP measuring east to west 20 feet and north to south 30 feet and now assigned new No. 4, assessment No. 292, 11 th cross, Thambuchetty palya main road, 5 O.S.6079/2014 Munisjwar Nagar, Ramamurthy nagar extension, Bangalore and the said Mohan out of love and affection towards his daughter executed the gift deed in favour of the plaintiff in respect of aforesaid property on 8.3.2003.
4. In para No. 4 of the plaint it is stated that the plaintiff has been exercising her ownership over the aforesaid property and she has been paying taxes to the BBMP.
5. In para No. 5 of the plaint the plaintiff has submitted that prior to the execution of gift deed the defendant herein had approached her father to let out the suit schedule property, i.e., house premises No. 4, 11 th cross, Thambuchetty palya main road, Munisjwar Nagar, Ramamurthy nagar extension, Bangalore 16 for a period of two years and the 6 O.S.6079/2014 father of plaintiff has agreed to let out the suit schedule premises and in this regard the father of the plaintiff and the defendant had entered into lease agreement on 6.12.2010 and the defendant had paid the advance security amount of Rs.1,50,000/- to the father of the plaintiff.
6. Subsequent to the expiration of the lease agreement the defendant has been continued in possession of the suit schedule premises under the father of the plaintiff and later on the defendant became the tenant of plaintiff and thus there is jural relationship between the plaintiff and the defendant. The plaintiff has been requesting and demanding the defendant to quit, vacate and handover the vacant possession of the schedule premises for her bonafide use and occupation. The defendant has been 7 O.S.6079/2014 promised to vacate and handover the same and whenever the request made by her the defendant has been postponing the same and refused to vacate the suit schedule premises. Hence the plaintiff has caused legal notice to the defendant on 1.4.2014 calling upon the defendant to quit, vacate and handover the possession of the suit schedule premises. Further the plaintiff has cancelled the lease agreement by giving one month time to the defendant for handing over the vacant possession of the suit schedule premises. Despite of service of legal notice the defendant neither replied to the said notice nor vacated the suit schedule premises. The defendant has been squatting over the suit schedule property. Hence is liable to pay the damages of Rs.5,000/- per month from the date of suit till she 8 O.S.6079/2014 vacates the suit schedule premises. Hence on these grounds the plaintiff prayed to decree this suit.
7. After service of summons the defendant entered appearance by engaging counsel and resisted the claim of the plaintiff by filing the written statement. The written statement filed by the defendant briefly stated as follows:
The defendant has admitted the averments made in para No. 2 of the plaint. The defendant has admitted the averments made in para No. 3 of the plaint that the property assigned as house No. 111, assessment No. 292, situated at Munisjwar Nagar, Kowdenahalli village, K.R.Puram hobli, Bangalore east taluk now comes under the limits of BBMP measuring east to west 20 feet and north to south 38 feet and now assigned new No. 4, assessment No. 9 O.S.6079/2014 292, 11 th cross, Thambuchetty palya main road, Munisjwar Nagar, Ramamurthy nagar extension, Bangalore are admitted as true and correct. But the further averments that the said Mohan out of love and affection towards his daughter had executed the gift deed in favour of the plaintiff in respect of aforesaid property on 8.3.2013 are denied as false. It is contended that when said Mohan who was incapable to return the lease amount after the lapse of lease period had sold the schedule premises to the defendant by receiving the remaining sale consideration amount from the defendant and has executed and registered the gift deed dated 31.12.2012 in favour of the defendant. The said gift deed was registered as document No. 11110/2012-13 in the Office of Sub-Registrar, Basavanagudi, Bangalore. The averments made in para 4 of the 10 O.S.6079/2014 plaint are denied as false. The averments made in para 5 of the plaint that the defendant had approached the said Mohan and entered into a lease agreement dated 6.12.2010 to take the schedule premises for a lease for a period of two years and the defendant had paid a sum of Rs.1,50,000/- as interest free lease amount to the said Mohan are admitted as true and correct. The averments made in para 6 and 7 are denied as false. The averments made by the plaintiff in the plaint that the plaintiff has caused legal notice to the defendant on 1.4.2014 is admitted as true and correct. It is contended that the defendant has got issued suitable reply dated 6.5.2014 through her counsel to the said notice dated 1.4.2014 denying the jural relationship between the plaintiff and defendant. The averments made in para No. 9 to 11 of the plaint are denied as false. 11 O.S.6079/2014
8. The defendant has taken contention that the said Mohan who was incapable of return the lease amount after the lapse of lease period had sold the schedule premises to the defendant by receiving the remaining sale consideration amount from the defendant and has executed and registered the gift deed dated 31.11.2012 in favour of the defendant. Based on the said gift deed dated 31.12.2012 the defendant has got the Khatha in respect of schedule premises registered in her name and she has been paying up-to-date taxes to the concerned Revenue Authorities. Further she also got the electricity and water connections in respect of the schedule premises. As on today the Khatha, electricity and water connections in respect of the suit schedule premises are all standing in the name of the 12 O.S.6079/2014 defendant. The defendant is enjoying the schedule premises as its absolute owner since the date of execution of the said gift deed dated 31.12.2012. Knowing this fact the plaintiff has filed this false case with a cooked up story only with an intention to cheat and defraud the defendant. Hence on these grounds the defendant prayed for dismissal of the suit.
9. Based on the pleadings of the parties following issues have been framed.
(1) Whether the plaintiff proves shat she has validly and legally terminated the tenancy of the defendant ?
(2) Whether the plaintiff proves that she is entitled for damages at the rate of Rs.5,000/- per month ?
13 O.S.6079/2014 (3) Whether the defendant proves the contents of para No. 13 of her written statement ?
(4) Whether the plaintiff is entitled for the reliefs as sought by her ?
(5) What order or decree ?
10. In order to prove the case of the plaintiff, the plaintiff examined himself as PW1 and the documents Ex.P1 to Ex.P13 are marked through PW1. During the course of cross-examination of DW1 the document Ex.P13 marked. Thus on the side of the plaintiff Ex.P1 to 13 are marked. On the side of the defendant the General Power of Attorney holder and son of the defendant examined as DW1 and the documents Ex.D1 to Ex.D28 are marked. One witness is examined as DW2.14 O.S.6079/2014
11. I have heard the arguments on the side of the learned counsel for the plaintiff and the learned counsel for the defendant and perused the entire records.
12. My findings to the above issues are as under:
Issue No.1 : In the Affirmative
Issue No.2 : Partly in the
Affirmative
Issue No.3 : In the Negative
Issue No.4 : Partly in the Affirmative
Issue No.5 : As per the final order
for the following:
REASONS
13. Issue No.1 & 3 : These issues have taken up
together for discussion for the sake of convenience and in order to avoid repetition of facts and evidence.15 O.S.6079/2014
14. From the pleadings it is not disputed that the plaintiff's father M.Mohan was the landlord and the defendant is the tenant of the suit schedule property. It is so because the defendant has admitted the para 2 of the plaint wherein the plaintiff has stated that the property bearing Khatha No. 115, measuring east to west 20 feet, north to south 38 feet was granted in favour of the plaintiff's father Mohan on 25.1.1998 by the Chief Officer, ITI notified area committee, Krishnarajapuram, Bangalore - 36. The defendant in her written statement has admitted the entire averments made in para No. 2 of the plaint. Thus the ownership of the plaintiff's father Mohan with respect to the property bearing Khatha No. 115, measuring east to west 20 feet, north to south 38 feet is not disputed by the defendant. In other words the defendant has admitted the entire 16 O.S.6079/2014 averments made in para No. 2 of the plaint wherein the plaintiff has averred how her father Mohan acquired the property bearing Khatha No. 115, measuring east to west 20 feet and north to south 38 feet. No doubt during the course of arguments the learned counsel for the defendant argued that the only property measuring east to west 20 feet and north to south 20 feet was allotted to the plaintiff's father under Hakkku Patra as per Ex.P2. He argued that quite contrary to the document Ex.P2 PW1 has deposed that her father was allotted with property measuring east to west 20 feet, north to south 38 feet. On the other hand the learned counsel for the plaintiff submitted that the plaintiff has produced the document Ex.P9 which would go to show that the city municipality of K.R.Puram, Bangalore - 36 has issued this notice wherein the measurement of the 17 O.S.6079/2014 property is mentioned as east to west 20 feet and north to south 38 feet. He submitted that when the defendant herself in her written statement admitted the para No. 2 of the plaint now she is estopped from contending that only 20 x 20 feet property was allotted to the plaintiff's father. There is some force in the arguments of the learned counsel for the plaintiff because it is now settled principle of law is that no amount of evidence on a plea, that is not put forward can be looked into. This principle is laid down in a decision reported in 2004(5) KLJ 211 between Syndicate Bank, Sowdatti, Belgaum district and Mahalakshmi Ginning Factory and others. The Hon'ble High Court of Karnataka in the decision reported in 1996(5) KLJ 181 between Krishnaswamy Naidu Vs. Jaganath Naidu held that court cannot examine question not pleaded. Case not pleaded 18 O.S.6079/2014 cannot be made out. In the decision reported in 1998(4) KLJ 368 Basavalingappa Chennappa Mamala Patan Chetan and others Vs. Dundappa Puttappa Panchappanawar, the Hon'ble court held that proof in absence of pleading - has no relevance - where party seeking relief of declaration on the basis of title has neither pleaded adverse possession nor was any issue raised in this behalf. Relief cannot be granted on the basis of adverse possession when his suit on basis of title fails. In the decision reported in ILR 1995 Kar 1645 between Kempegowda G.K. Vs. Smt.Lucinda it is held that the court cannot make entirely a new case which has not been pleaded by the parties, nor the court can draw inference inconsistent with plea set up by the parties. The case should be determined either on the plea found in the pleading or on the proved facts consistent 19 O.S.6079/2014 with the case thereby made. Thus it is now settled principle of law is that there should not be variance between the pleading and proof. The pleading is the foundation of the suit. The parties cannot lead the evidence without there being pleadings.
15. In the present suit even though the defendant in her written statement has admitted that she was lessee under the defendant's father Mohan and entered into a lease agreement dated 6.12.2010 and taken the suit schedule premises for a lease for a period of two years by paying amount of Rs.1,50,000/- as a lease amount as interest free lease amount to Mohan but the defendant has taken contention that as the plaintiff's father Mohan was incapable of return the lease amount after the lapse of lease period he had sold the suit schedule premises to the defendant by receiving the remaining 20 O.S.6079/2014 sale consideration amount from the defendant and has executed the registered gift deed dated 31.12.2012. Thus the defendant has become the absolute owner of the suit schedule premises and she is paying the property tax, electricity charges and water charges. In the written statement the defendant by admitting the ownership of the plaintiff's father Mohan and also admitted the lease agreement dated 6.12.2010 has taken contention that since Mohan was incapable to return the lease amount after the lapse of lease period he has sold the suit schedule premises to the defendant by receiving the remaining sale consideration amount and has executed the registered gift deed dated 31.12.2012 in favour of the defendant.
16. Even though in the written statement the defendant has admitted the ownership of plaintiff's 21 O.S.6079/2014 father Mohan and contended that after the expiry of lease period plaintiff's father Mohan had sold the suit schedule premises to the defendant by receiving remaining sale consideration amount and executed a registered gift deed dated 31.12.2012 in favour of the defendant but during the course of examination-in- chief of DW1 who is the son and General Power of Attorney holder of defendant has deposed quite contrary to the written statement contentions. Dw1 in his examination-in-chief has deposed that the defendant is the absolute owner and in peaceful possession and enjoyment of the site in property Khatha No. 115, BBMP 'B' Khatha No. 1937/115 situated at Munisjwar Nagar, Kowdenahalli village Dakle, Krishnarajapuram hobli, Bangalore east taluk, now comes under the jurisdiction of BBMP ward No. 25, Horamavu, Bangalore measuring east to west 20 22 O.S.6079/2014 feet and north to south 20 feet and now assigned new No. 80, 'B' block, F Zone, Munisjwar Nagar, 11 th cross, Ramakrishna Nagar, Bangalore as the same was acquired by the defendant through a registered gift deed dated 31.12.2012 executed by her own brother Mohan S/o late Muniswamy in favour of the defendant. DW1 has deposed that the Government of Karnataka had issued Niveshana Hakku Patra under the scheme of Ashraya Yojana with respect to the site measuring 20 x 20 to the brother of the defendant Mohan who later gifted this property to the defendant under the gift deed dated 31.12.2012. DW1 has deposed that the government also allotted the site measuring 20 x 20 to the plaintiffs father by issuing Niveshana Hakku Patra but later he illegally transferred the said site measuring 20 x 38 instead of 20 x 20 in favour of his daughter plaintiff M.Sarah 23 O.S.6079/2014 Jemmi under the gift deed dated 8.3.2013. DW1 has deposed that the plaintiff after illegally acquiring the site measuring 20 x 38 under the said gift deed dated 8.3.2013 she is illegally claiming the property of the defendant. It is pertinent to note that there is no pleading on the side of the defendant with respect to the chief examination version of DW1. There is no pleading on the side of the defendant that she has acquired the property through registered gift deed executed by her brother Mohan S/o Muniswamy. It is the contention of the defendant in her written statement is that plaintiff's father who was incapable of return the lease amount after the lapse of lease period had sold the suit schedule premises to the defendant by receiving the remaining sale consideration amount from the defendant and has executed the registered gift deed dated 31.12.2012. 24 O.S.6079/2014 In this suit the defendant has produced and got marked the document Ex.D3 gift deed dated 31.12.2012. This gift deed is executed by one Mohan in favour of defendant Manjula. In the written statement the defendant has taken contention that it is the plaintiff's father Mohan who executed the gift deed dated 31.12.2012 in favour of the defendant. Since there is no pleading on the side of the defendant that the defendant's brother Mohan executed the gift deed dated 31.12.2012 in favour of the defendant no amount of the oral evidence to that effect of DW1 can be taken into consideration. DW1 cannot make entirely new case which is not pleaded in the written statement. Hence any amount of evidence of DW1 with respect to the alleged gift deed executed by the defendant's brother in favour of the defendant is not admissible. This court cannot 25 O.S.6079/2014 look into such evidence of DW1 as there is no pleading in the written statement filed by the defendant.
17. DW2 in his examination-in-chief has also deposed that the defendant's brother Mohan S/o Late Muniswamy has executed the gift deed in favour of the defendant, hence she became the owner and in possession of the property and paying up-to-date property tax. DW2 has deposed that originally the Government of Karnataka had issued Hakku Patra under the Ashraya Yojana to the respondents in their area with respect to the site measuring 20 x 20 each. One such site was allotted to the brother of the defendant Mohan who later gifted the said property to his sister defendant Manjula. As I already stated that since there is no pleading on the side of the defendant to show that the property was gifted to 26 O.S.6079/2014 her by her brother Mohan no amount of oral evidence in this respect can be considered. More than that in this suit the defendant has not produced and got marked any documents such as Hakku Patra to show that the Government of Karnataka allotted the Hakku Patra in favour of the defendant's brother with respect to the property measuring 20 x 20. While addressing the arguments the learned counsel for the defendant submitted that the xerox copy of the Hakku Patra is produced in this suit. Merely production of xerox copies of documents it cannot be held that the Hakku patra was issued in favour of the defendant's brother Mohan. The defendant in order to show that she had such brother Mohan she has not produced any genealogical tree, family ration card, identity card such as Aadhar card, voter ID card, any other identity card of Mohan to show that 27 O.S.6079/2014 he is the brother of the defendant. Since there is no pleading on the side of the defendant in her written statement that she had brother by name Mohan and her brother Mohan was allotted with the property under Ashraya Yojana and her brother Mohan gifted the said property to the defendant, this court cannot examine such question without there being any pleading and issues. Hence the examination-in-chief version of DW1 and DW2 which is not in consonance with the written statement contents are not acceptable.
18. Now coming to the pleading and evidence on the side of the plaintiff. In this suit it is the specific case of the plaintiff is that the defendant had approached her father Mohan to let out the house premises No. 4, 11 th cross, Thambuchetty palya main road, Munisjwar Nagar, Ramamurthy nagar extension, 28 O.S.6079/2014 Bangalore - 16 which is described as suit schedule premises for a period of two years and the father of the plaintiff has agreed to let out the suit schedule premises and in this regard the father of the plaintiff and the defendant had entered into lease agreement on 6.12.2010 and the defendant had paid advance security amount of Rs.1,50,000/- to the father of the plaintiff. It is pertinent to note that the defendant has admitted the entire averments made in para No. 5 of the plaint by admitting that the defendant had approached the plaintiff's father Mohan and entered into a lease agreement dated 6.12.2010 to take the schedule premises for lease for a period of 2 years and the defendant had paid a sum of Rs.1,50,000/- as interest free lease amount to Sri.Mohan. PW1 in her examination-in-chief has reiterated the plaint averments by deposing that her father and defendant 29 O.S.6079/2014 entered into lease agreement on 6.12.2010. In order to substantiate this contention the plaintiff has produced and got marked the document Ex.P1 lease agreement dated 6.12.2010. The defendant has not denied the document Ex.P1. DW1 in his cross- examination admitted that the document Ex.P1 contains signature of his mother defendant and also contains the signature of the plaintiff's father Mohan. DW1 has also admitted the suggestion that his father Keshava also signed to the document Ex.P1 as an attesting witness. DW1 in his examination-in-chief has deposed that the defendant and her family while constructing their house in the site belongs to the defendant have temporarily taken the suit schedule premises from the father of the plaintiff and immediately after construction of their house which is located just next to the property of the plaintiff, 30 O.S.6079/2014 defendant and her family members have long back shifted to their house and vacated the suit schedule premises. However the father of the plaintiff has not returned the security deposit amount to the defendant till this date. It is pertinent to note that in the written statement the defendant has not taken any such contention that while constructing her house she had temporarily taken the suit schedule premises from the father of the plaintiff and immediately after the construction of her house she and her family members have shifted to newly constructed house by vacating the suit schedule premises. It is the specific defence of the defendant in her written statement is that she had taken the suit schedule premises on lease and after lapse of lease period as the plaintiff's father Mohan was incapable to return the lease amount, hence he had 31 O.S.6079/2014 sold the suit schedule premises to the defendant by receiving the remaining sale consideration amount from the defendant and has executed a registered gift deed dated 31.12.2012. On perusal of the written statement contentions of the defendant she has specifically taken contention that she continued in the possession of the property leased to her by the plaintiff's father Mohan and later she purchased the same by giving sale consideration amount to plaintiff's father and the plaintiff's father also executed gift deed in her favour. But quite contrary to the pleadings and written statement contentions taken by the defendant. DW1 who is the son and General Power of Attorney of the defendant has deposed that while constructing their house which is located from next to the suit schedule property the defendant and her family have temporarily taken the 32 O.S.6079/2014 suit schedule premises from the father of the plaintiff and immediately after completion of construction they shifted to the newly constructed house. This deposition of DW1 is not acceptable as it is totally new case which is inconsistent to pleading. Since the defendant in her written statement has admitted that she came in possession of the suit schedule property under lease agreement dated 6.12.2010 entered into between her and plaintiff's father, the very admission in the pleading is sufficient to hold the landlord and tenant relationship between the plaintiff and defendant.
19. The learned counsel for the defendant argued that during the course of cross-examination of PW1 she has deposed that she already given one house to Venu Gopal and Hamsamma on rent. He submitted that this version of PW1 itself indicates that her 33 O.S.6079/2014 property is already given on rent to Venu Gopal and Hamsamma. On the other hand the learned counsel for the plaintiff submitted that there are two portion houses out of the property measuring east to west 20 feet and north to south 38 feet out of which one house is given to the tenants by name Venu Gopal and Hamsamma and the suit schedule property was given to the defendant under lease agreement. Even though on perusal of the oral evidence of PW1 it would go to show that there are two portion house but since the defendant has failed to show that the house in which the defendant and her family is residing is not belongs to the plaintiff, hence the admission given by PW1 that she has given one house to Venu Gopal and Hamsamma on rent is not dis-entitle her to recover the possession of the suit schedule property from the defendant because the 34 O.S.6079/2014 defendant herself in her written statement stated that after lapse of lease period as the plaintiff's father Mohan sold the schedule premises to her she continued in possession of the same. As I already observed that there is no pleading on the side of the defendant that the property which is now in her possession was gifted by her brother Mohan to her. Under such circumstances the oral evidence of DW1 and DW2 in that regard is not acceptable. We have to consider whether the defendant proves the defence taken by her in the written statement that plaintiff's father Mohan had gifted the property to the defendant under gift deed dated 31.12.2012. There is no evidence on the side of the defendant to show that plaintiff's father Mohan gifted the suit schedule property to the defendant under registered gift deed dated 31.12.2012. Since the defendant herself in her 35 O.S.6079/2014 written statement has taken contention that she continued in possession of the suit schedule property as she purchased the property and as the plaintiff's father gifted the suit property in her favour, under such circumstances having failed to prove the same by giving cogent evidence it strengthens the case of the plaintiff that inspite of the plaintiff terminated the lease agreement by issuing legal notice dated 1.4.2014 the defendant illegally continued in possession over the suit schedule property.
20. The provision under section 116 of Indian Evidence Act is very clear that no evidence of immovable property or person claiming through such tenant shall during the continuation of the tenancy be permitted to deny that the landlord of such tenant had, at beginning of the tenancy a title of such immovable property, and no person who came upon 36 O.S.6079/2014 any immovable property by the licence and the person in possession there of shall be permitted to deny that such person had a title to such possession and at the time when such licence was given. The provision under section 116 of Evidence Act is very clear that a tenant cannot deny the title of the landlord during the continuation of tenancy and till she also given up possession and restored the same to the landlord.
21. In this suit since the defendant admitted the ownership of the plaintiff's father Sri.Mohan in respect of the suit schedule premises and also admitted that plaintiff's father Mohan and the defendant entered into a lease agreement dated 6.12.2010 and on the strength of the lease agreement the defendant came in possession of the suit schedule premises, hence the defendant cannot deny the title 37 O.S.6079/2014 of the plaintiff's father over the suit schedule property in the evidence. The law of estoppel under section 116 of Indian Evidence Act applies to this suit.
22. It is the case of the plaintiff is that her father Mohan out of love and affection had executed a gift deed dated 8.3.2013 in favour of the plaintiff in respect of the suit schedule property. PW1 in her examination-in-chief deposed that her father executed gift deed in her favour in respect of the property measuring east to west 20 feet and north to south 38 feet. Now assigned new No. 4, assessment No. 292, 11 th cross, Thambuchetty palya main road, Munisjwar Nagar, Ramamurthy nagar extension, Bangalore. She has produced and got marked the document Ex.P3 gift deed. During the course of cross-examination of PW1 nothing is elicited from her mouth to discard 38 O.S.6079/2014 the document Ex.P3 even though during the course of cross-examination of PW1 the defendant has taken contention that the suit schedule property and the property which is in possession the defendant is entirely different. But since the defendant in her written statement has admitted the fact that she continued in possession of the property given by the plaintiff's father under lease agreement by paying consideration amount and as the plaintiff's father executed gift in her favour, hence one thing is very clear that it is the same property which was given by the plaintiff's father to her under the lease agreement and she continued the possession of the same. The contention taken by the defendant during the course of cross-examination of PW1 is that the defendants property and the plaintiff's property are entirely different is not acceptable because there is no such 39 O.S.6079/2014 pleading on the side of the defendant to say that the property which is in her possession and the property claimed by the plaintiff are entirely different. In the cross-examination of PW1 she has admitted the suggestion that her father had gifted her the property as per Ex.P3 which is very same property which is mentioned in Ex.P2 Hakku patra. On perusal of the cross-examination portion of PW1 the defendant has not denied the document Ex.P3 gift deed executed by the plaintiff's father Mohan in favour of the plaintiff. In the examination-in-chief of DW1 he has deposed that the plaintiff illegally transferred property measuring 20 x 38 feet instead of 20 x 20 feet under the gift deed dated 8.3.2013. This version of DW1 is sufficient to hold that the plaintiff acquired the property from her father under the registered gift deed dated 8.3.2013 as per Ex.P3. No 40 O.S.6079/2014 doubt DW1 has disputed the extent of the property mentioned in Ex.P3 by contending that inspite of plaintiff's father was having the property measuring 20 x 20 he has gifted the property to the large extent measuring 20 x 38. In the written statement the defendant has not taken any such contention that even though the plaintiff's father had no such right to execute the gift deed to the extent of 20 x 38, he has executed the gift deed to the property measuring 20 x 38 instead of 20 x 20. As I already stated that the pleading is the foundation of the suit. In this suit the defendant without there being any pleadings regarding the measurement of the plaintiff's property during the course of cross- examination of PW1 started to take contention that the suit schedule property and the property belongs to the defendant is entirely different. This 41 O.S.6079/2014 contention of the defendant without there being pleadings is not acceptable. The oral evidence of PW1 which is supported by the document Ex.P3 gift deed is sufficient to hold that the property measuring east to west 20 feet, north to south 38 feet which is mentioned in para No. 2 and 3 of the plaint gifted to the plaintiff by her father under registered gift deed dated 8.3.2013 and thereby the plaintiff acquired the right over the suit schedule property. As I already stated the defendant in her written statement admitted the entire averments made in para 2 of the plaint and also admitted the averments made in para 3 of the plaint regarding the measurement, extent, property number of the plaintiffs property. PW1 has got marked the documents Ex.P2 Hakku Patra, Ex.P4 seven property tax paid receipts, Ex.P5 encumbrance certificate, Ex.P6 'B' Khatha extract, Ex.P9 special 42 O.S.6079/2014 notice issued by the City Municipality. The plaintiff has also produced the document Ex.P11 copy of complaint given to the police wherein she has stated that the defendant got created one gift deed dated 6.10.2010, Ex.P12 is the endorsement issued by the police for having received the complaint. The document Ex.D4 to Ex.D28 are relied by the defendants are all subsequent documents of Ex.D3 gift deed. In the written statement of the defendant she has taken contention that it is the plaintiff's father who executed the gift deed dated 31.12.2012 but during the course of evidence DW1 got marked the document Ex.D3 gift deed dated 31.12.2012 by contending that it was executed by defendant's brother Mohan on 31.12.2012 in favour of the defendant. Since there is no pleading on the side of the defendant to show that her brother Mohan 43 O.S.6079/2014 executed the gift deed dated 31.12.2012 in her favour, the document Ex.D3 and the subsequent document Ex.D4 to Ex.D28 are not helpful to the defendant to say that she has become the owner of the suit property.
23. The defendant has not disputed the lease agreement dated 6.12.2010 entered into between plaintiff's father Mohan and the defendant. Ex.P1 is the said lease agreement dated 6.12.2010 entered into between the plaintiff's father and the defendant. The plaintiff has mentioned the very same property in the plaint schedule as described in Ex.P1 lease agreement. DW1 in his examination-in-chief affidavit has stated that he is residing at No. 4, 11 th cross, Munisjwar Nagar, Ramamurthy nagar extension, Bangalore 560 016. The plaintiff in the cause title of the plaint has mentioned the very same address of 44 O.S.6079/2014 the defendant. The address which is deposed by DW1 and the address of the defendant mentioned in the cause title is tallies with the suit schedule property and the property which is mentioned in Ex.P1 lease agreement. The plaintiff has produced the document Ex.P10 death certificate of her father to show that plaintiff's father Mohan died on 3.7.2017. The oral evidence of PW1 and the document Ex.P3 gift deed is sufficient to hold that the plaintiff became the owner of the property No. 115, assessment No. 292, measuring 20 x 38 feet. The plaintiff having acquired the right over the suit schedule property under registered gift deed dated 8.3.2013 is having every right to claim the recovery of possession of the suit schedule property from the defendant as a landlord.
45 O.S.6079/2014
24. The plaintiff has taken contention that she has caused legal notice to the defendant on 1.4.2014 calling upon the defendant to quit, vacate and handover the vacant possession of the suit schedule property. The defendant in her written statement has admitted that the plaintiff has caused legal notice to the defendant on 1.4.2014. The defendant has taken contention that the defendant has got issued a suitable reply dated 6.5.2014 through her counsel denying the jural relationship between the plaintiff and defendant. In order to substantiate this contention taken by the defendant the defendant has not produced any document to show that she has sent reply notice dated 6.5.2014 to the plaintiff. The plaintiff has produced and got marked the document Ex.P7 legal notice dated 1.4.2014 issued by her through her counsel to the defendant calling upon 46 O.S.6079/2014 the defendant to quit, vacate and handover the vacant possession of the premises within one month and the lease period has been terminated on or before 28.4.2014. It is also stated in the notice that inspite of this notice if the defendant continued in possession it would be treated as trespasser and she is liable to pay damages at the rate of Rs.5,000/- per month. The document Ex.P8 is the postal acknowledgment for having served notice to the defendant. The learned counsel for the defendant argued that in Ex.P1 lease agreement it is mentioned that the termination of the agreement shall be on three months intimation by either side. No doubt there is such clause No. 8 in Ex.P1 to give three months intimation. The plaintiff in her plaint has clearly stated that she has got issued the notice under section 106 of TP Act. The document Ex.P1 47 O.S.6079/2014 is unregistered lease agreement. The lease agreement is for two years commencing from 6 th December 2010 to 6 th December 2012. Admittedly the property under Ex.P1 lease agreement given for residential purpose. It is not for manufacturing purpose. Even though the lease is for period extending one year the lease in question will fall in the 2 nd half of section 106 of T.P.Act and 15 days notice is sufficient for termination. In this suit the plaintiff by issuing notice as per Ex.P7 to the defendant terminated the lease. The notice as per Ex.P7 issued on 1.4.2014. The document Ex.P8 is the postal acknowledgment for having served the notice to the defendant. The plaintiff has filed this suit on 7.8.2014. The plaintiff waited for more than three months after service of termination notice as per Ex.P7. The document Ex.P7 termination notice is valid notice as the 48 O.S.6079/2014 plaintiff has given more than 15 days clear time to the defendant to vacate and handover the suit schedule property after termination of lease agreement. Even though the defendant has taken contention that she has sent reply notice dated 6.5.2014, in order to substantiate the same the defendant has not produced any document. As per section 106 of T.P.Act to put an end to the lease there is no need that the landlord has to prove necessity of the suit schedule property for her personal use. In other words to terminate the tenancy it is not mandatory that the landlord is to assign reason for doing so. The service of notice itself is enough to put an end to such jural relationship. The oral evidence of PW1 which is supported by the document Ex.P7 and Ex.P8 are sufficient to hold that the plaintiff has validly and 49 O.S.6079/2014 legally terminated the tenancy of the defendant. The defendant has failed to prove the contents of para No. 13 of her written statement. In para No. 13 of the written statement the defendant has taken contention that the plaintiff's father Mohan who was incapable of return the lease amount after lapse of lease period had sold the suit schedule premises to the defendant by receiving the remaining sale consideration amount and also executed the registered gift deed dated 31.12.2012 but in the oral evidence of DW1 he has deposed quite contrary to para No. 13 of the written statement by contending that it was the defendant's brother Mohan who executed the gift deed dated 31.12.2012 in favour of the defendant. Without there being any such pleading the oral evidence of DW1 is not acceptable. The defendant has failed to prove issue No. 3 and 50 O.S.6079/2014 the contents of para No. 13 of her written statement. The plaintiff has successfully proved that she has validly and legally terminated the tenancy of the defendant. Hence I answer issue No. 1 in the Affirmative and issue No.3 in the Negative.
25. Issue No. 2: The plaintiff has claimed the damages of Rs.5,000/- per month towards rent from the date of suit till the defendant vacates the suit schedule premises. PW1 in her examination-in-chief has deposed that she had caused legal notice to the defendant on 1.4.2014 calling upon the defendant to quit, vacate and handover the vacant possession of the suit schedule property and she cancelled the lease agreement and directed to the defendant to handover the vacant possession of the suit schedule premises. Despite of receipt of notice the defendant neither replied to the said notice nor vacated the suit 51 O.S.6079/2014 schedule property and she has been squatting over the same. Hence she is liable to pay the damages of Rs.5,000/- per month from the date of suit till she vacates the suit schedule property. During the course of cross-examination of PW1 no question asked to her with regarding to her claim of damages at the rate of Rs.5,000/- per month. The plaintiff has produced and got marked the document Ex.P7 copy of legal notice issued to the defendant wherein she has stated that the defendant is liable to pay damages at the rate of Rs.5,000/- per month if she fails to vacate the suit schedule property. In this suit the plaintiff has not produced any documents to show that within the vicinity the property fetches rent of Rs.5,000/- per month to the similar property like the suit schedule property. In the absence of any documentary evidence on the side of the plaintiff 52 O.S.6079/2014 to show the exact prevailing rent of the property similar to the suit schedule property within the vicinity demanding of Rs.5,000/- rent for such small house cannot be accepted. This court of the opinion that if damages at the rate of Rs.2,000/- per month from the date of suit is fixed that would meet the ends of justice. Hence issue No. 2 is answered partly in the Affirmative by holding that the plaintiff is entitled for damages at Rs.2,000/- per month from the date of suit till the defendant handover the vacant possession of the suit schedule property to the plaintiff.
26. Issue No. 4: In view of my findings on issue No. 1 to 3, I conclude that the plaintiff is entitled for the relief to eject the defendant from the suit schedule property and entitled for vacant possession of the suit schedule property. The plaintiff is 53 O.S.6079/2014 entitled for damages at the rate of Rs.2,000/- per month from the date of the suit till the defendant vacate and handover the suit schedule property to the plaintiff. Hence I answer issue No. 4 partly in the Affirmative.
27. Issue No.5: In view of my findings on issue No.1 to 4, I proceed to pass the following:
ORDER The suit of the plaintiff is partly decreed with cost.
The defendant is directed to quit, vacate and handover the vacant possession of the suit schedule property to the plaintiff within four months from the date of this judgment.
Further the defendant is directed to pay Rs.2,000/- per 54 O.S.6079/2014 month as damages to the plaintiff from the date of suit till the defendant handover the vacant possession of the suit schedule property to the plaintiff.
Draw decree accordingly.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in the open court on this the 17th day of February 2022.) (Mohan Prabhu) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE Witnesses examined for the plaintiff/s :
PW1 - M.Sarah Jemmi Witness examined for the defendant/s :
DW1 - Dilip Kumar
DW2 - M.Eswarappa
55 O.S.6079/2014
Documents marked for the plaintiff/s :
Ex.P1 - Rental agreement dated 6.12.2010 Ex.P2 - Hakku patra Ex.P3 - gift deed Ex.P4 - 7 Tax paid receipts Ex.P5 - 1 encumbrance certificate Ex.P6 - B Khatha extract Ex.P7 - Notice copy Ex.P8 - Postal acknowledgment Ex.P9 - Doc issued by city municipality Ex.P10 - Death certificate Ex.P11 - Police complaint (marked subject to objection) Ex.P12 - Endorsement issued by police Ex.P13 - Aadhar card Documents marked for the defendant/s :
Ex.D1 - Electricity bill
Ex.D2 - General Power of Attorney
Ex.D3 - gift deed dated 31.12.2012
Ex.D4 - B Khatha extract
Ex.D5-7 - Tax paid receipts
Ex.D8-17 - Tax paid receipts
56 O.S.6079/2014
Ex.D18 - encumbrance certificate
Ex.D19 - Card issued by BWSSB
Ex.D20-25 - KEB bills
Ex.D20(a)
to 25(a) - Computerised KEB bills
Ex.D26-28- Computerised KEB bills
(Mohan Prabhu)
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.57 O.S.6079/2014
Judgment pronounced in the open court (vide separate detailed Judgment) ORDER The suit of the plaintiff is partly decreed with cost.
The defendant is directed to
quit, vacate and handover the
vacant possession of the suit
schedule property to the plaintiff
within four months from the date
of this judgment.
Further the defendant is
directed to pay Rs.2,000/- per
month as damages to the plaintiff
from the date of suit till the
defendant handover the vacant
possession of the suit schedule
property to the plaintiff.
Draw decree accordingly.
58 O.S.6079/2014
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.59 O.S.6079/2014