Bangalore District Court
S.S.Jayappa vs Mr. Vijay Kumar on 2 February, 2015
BEFORE THE COURT OF SMALL CAUSES,
BANGALORE, SCCH-4
DATED THIS THE 2nd FEBRUARY 2015
PRESENT: Smt.J.P.ARCHANA, B.com.,LL.B.,
XVIII ADDL. JUDGE,
COURT OF SMALL CAUSES,
BANGALORE.
HRC NO.245 OF 2009
PETITIONER: S.S.Jayappa,
S/o S.P. Shanmukhachar,
Aged about 39 years,
Residing at No.3,
Gokul Motor Driving School,
1st floor, M.S.R. Main Road,
Gokula, Bangalore-560 054.
V/S
RESPONDENT: Mr. Vijay Kumar,
Aged about 50 years,
Father's name not known
to the petitioner, D.No.43,
Thirumala Nivasa, 4th Cross,
HMT Layout,
Mathikere, Bangalore-560 054.
JUDGMENT
This is a petition filed by the petitioner u/s 27(2) (a) (r) of Karnataka Rent Act 1999 with a prayer directing the respondent to quit and deliver the vacant possession of the schedule premises.
2. The petition averments in brief are that :
2 HRC No.245 of 2009The respondent was a tenant under Smt. Chandraprabha the vendor of the petitioner herein, in respect of the schedule premises on a monthly rent of Rs.350/- and caution deposit of Rs.2,000/- after the purchase of the schedule premises by the petitioner the tenancy of the respondent has attorned upon the petitioner. That the demised premises is required by the petitioner for his own use and occupation, the petitioner issued a legal notice dt:14.03.2009 calling upon the respondent to vacate and hand over the vacant possession of the schedule premises to the petitioner, the respondent instead of complying with the demand of the petitioner has got an untenable reply issued through his advocate vide reply notice dated 28.03.2009 that apart the respondent has claimed that the petition schedule premise has been mortgaged to him by the petitioner's vendor after receiving a sum of Rs.5,00,000/- from the respondent herein which is categorically denied by the petitioner as well as the vendor of the petitioner. That the respondent has defaulted in paying the monthly rents to the petitioner and the respondent is totally due to pay the petitioner a sum of Rs.5,950/- being the arrears of rent from Feb.2008 till July, 2009 on this ground too the respondent is liable to be evicted from the schedule premises despite have received the legal notice for payment of arrears of rent the respondent has failed to pay the arrears of rents till the date of filing the present petition. Hence this petition.3 HRC No.245 of 2009
3. In response to the court notice, respondent appeared through counsel and filed his objection. The respondent has denied all the averments made by the petitioner in the petition and has further contended that petition filed by the petitioner is not maintainable either in law or on facts and circumstances of the case. That Smt. C.S. Chandra Prabha, wife of S.B.Shankar Rao, was the owner of the schedule property, this respondent was a tenant in respect of the schedule property on a monthly rent of Rs.160/- and the advance being Rs.2,000/-. That this respondent is running a fair price depot in the said premises as per the licence granted by the Food and Civil Supplies Dept. Government of Karnataka, selling Rice, Sugar, Wheat, Kerosene since 1982, thereare as many as 430 ration card holders purchasing the ration like rice, wheat, sugar, kerosene from the said fair price depot, the said lease was renewed in the year 1997 and again renewed in the year 2001, by enhancing the monthly rent of Rs.375/- and the advance being Rs.1,50,000/- which included the earlier advance of Rs.2,000/- as evidenced by the Badige Kararupatra. That on 02.06.2007 the above said Smt. C.S.Chandra Prabha received further sum of Rs.3,50,000/- (In addition to the earlier advance of Rs.1,50,000/-) from this respondent and converted, the said lease into a mortagage by executing an agreement of Bogyada Kararupatra for a period of 20 years from the said date. That Smt. Chandra Prabha and the petitioner have colluded together and managed to obtain signature of this respondent by promising to continue the above said 4 HRC No.245 of 2009 mortgage for 20 years. That the petitioner himself proposed this respondent to purchase the said entire premises No.3, Khaneshmari No.15 of Poornapura village, Geddalahalli, Grama panchayat, Bangalore, but the respondent could not purchase because of lack of funds. That the said Chandra Prabha and the petitioner have colluded together and filed the above frivolous petition to evict the respondent on frivolous grounds and to let out the same for higher rent and advance or to sell the same for higher price. That this respondent has defaulted in paying the monthly rents and this respondent is totally due in a sum of Rs.5,950/- from Feb. 2008 to July 2009 is absolutely false and the same is hereby denied. Hence on these grounds prayed to dismiss the petition.
4. The petitioner in support of his case, got himself examined as PW-1 and he got examined one Chandrapraba vendor of the schedule property as PW-2 and got marked documents at Ex-P1 to 7. The respondent got examined himself as RW-1, one Lakshmipathi attestor to lease agreement as RW2, one Narayanaswami and one Viswanath attestor to mortgage deed as RW-3 and RW4 respectively and got marked Ex-R1 to R27.
5. Heard the arguments of the counsel for the petitioner and inspite of giving sufficient oppourtunity the respondent counsel has not submitted his side argument.
5 HRC No.245 of 20096. On various contentions urged by both side parties, the points which arises for my consideration in this case are :-
1. Whether the petitioner proves that he is the landlord and the respondent is the tenant under him with respect to the petition schedule premises as contended in the petition?
2. Whether the petitioner proves that the respondent is due arrears of rent of Rs.5,950/- from Feb. 2008 till July 2009 as contended, as such liable for eviction u/s 27(2) (a) of the Karnataka Rent Act ?
3. Whether the petitioner proves that he requires schedule property for his own use and occupation has contended?
4. Whether petitioner is entitle for relief sought.?
5. what order or decree?
7. My findings on the above points are as under:-
Point No.1: In the affirmative.
Point No.2: In the affirmative Point No.3: In the affirmative Point No.4: In the affirmative Point No.5: As per final order for the following:
REASONS
8.Point No.1: The undisputed facts in this case are one Smt. Chandra Prabha is the owner of the suit schedule 6 HRC No.245 of 2009 premises and she has sold the same to the petitioner through registered sale deed dated 25.02.2008 and the respondent was tenant under Smt. Chandra Prabha the vendor of the petitioner on monthly rent of Rs.350/- with security deposit of Rs.2,000/-. Further contention of the petitioner is that after he has purchased the schedule premises from Smt. Chandra Prabha the tenancy of the petitioner attorned in favour of petitioner with respect to the schedule premises and the respondent has not paid rent from Feb. 2008 till July 2009. Further that he requires schedule premises for his own use and occupation and in this regard he has sent legal notice to the respondent terminating the tenancy and calling upon him to pay arrears of rent and vacate the schedule premises. In support of his contention the petitioner has got himself examined as PW1 and filed his affidavit in lieu of his chief examination and reiterated the above said averments and further got marked Ex.P.1- copy of sale deed, Ex.P.2- office of legal notice, Ex.P.3- Reply sent by respondent, Ex.P.4- notice sent by the respondent and Ex.P.5- reply sent by the petitioner.
9. Further the petitioner has got examined one Smt. C.S.Chandra Prabha, who is his vendor of the petition schedule premises as PW2 and she has filed her affidavit in lieu of her chief examination and reiterated the above said averments of the petitioner.
10. The respondent is contending that he was tenant 7 HRC No.245 of 2009 under C.S.Chandra Prabha since 1982 and he is running fair price depot in the said schedule premises and present rent is Rs.375/- per month and he has paid Rs 2000/- towards security deposit at the time of induction of himself into the premises a tenant. Further he has contended that he has paid Rs.1,50,000/- additional advance and on 02.06.2007, the said Chandra Prabha has received further sum of Rs.3,50,000/- from the respondent in addition to Rs.1,50,000/- already received by her and has converted the alleged lease into an alleged mortgage by executing mortgage deed in favour of the respondent for period of 20 years from the said date. That the said Chandra Prabha colluding with petitioner had obtained signature of the respondent in the sale deed promising to continue him for 20 years. That since he is mortgagee in possession for 20 years, the payment of arrears of rent will not arise and the petition for eviction under Karnataka Rent Act is not maintainable. Hence prays to dismiss the petition. In support of his contention he got himself examined as RW1 and filed his affidavit in lieu of his chief examination, wherein he has reiterated the objection averments and has got marked Ex.R1 to 28. Further he has examined one Lakshmipathi as RW2 who is witness to Ex.R16 lease agreement entered into between himself and Chandraprabha and he has stated that he knows the respondent and also one Chandra Prabha wife of Shankara Rao. That the said Chandra Prabha and the respondent have entered into an agreement of lease on 7.3.2001 pertaining to the 8 HRC No.245 of 2009 schedule premises. That the said Chandra Prabha and the respondent have put their signature to the said lease agreement before him and the respondent has paid a sum of Rs.1,48,000/- on that day towards advance of Rs.1,50,000/- which includes the earlier advance amount of Rs.2,000/- and the rent being Rs.375/- p.m. from the said date he has also put his signature on the said lease agreement as an attester. Further he has identified his signature at Ex.R.16(a). in his cross Nothing material is elicited from him in his cross examination by the respondent counsel to discredit his testimony.
11. Further the respondent got examined one Narayanaswamy as RW3 who is the witness of Ex.28 mortgage deed and he has stated that he knows the respondent and also one Chandra Prabha. That the said Chandra Prabha and the respondent have entered into an agreement of mortgage during 2007, pertaining to the schedule property for a period of 20 years. That the said Chandra Prabha and the respondent have put their signature to the said agreement of mortgage, on the said mortgage agreement before him. That he has attested to the said mortgage agreement as a witness. Further he has identified his signature as Ex.R.29.
12. Further the respondent has examined one K.N.Vishwanath, one of the attestor to mortgage deed ExR27 as RW4 and he has stated that he knows the 9 HRC No.245 of 2009 respondent and also one Chandra Prabha. That the said Chandra Prabha and the respondent have entered into an agreement of mortgage pertaining to the schedule property for a period of 20 years. That he has attested the said mortgage agreement as a witness, he has identified his signature as Ex.P.27(e). The respondent has contended that the vendor of the petitioner that is Chandra Prabha has converted the lease into mortgage agreement by receiving Rs.5,00,000/- mortgage amount and the period of mortgage is for 20 years and he has produced mortgage deed dated 02.06.2007 which was insufficiently stamped. The said mortgage agreement was impounded and duty of Rs.37,300/- and penalty of Rs.74,600/- was calculated in all Rs.1,11,900/- duty and penalty was calculated on 25.6.2012 and the same was deposited by respondent and after payment of duty and penalty, the said un-registered mortgage deed was marked at Ex.R.27. The respondent is claiming that he is mortgagee of the petition schedule premises as per Ex.R.27 which is un-registered mortgage deed.
13. At this juncture it is relevant to note the decision relied by the petitioner which are as follows:
a.) The decision laid down in ILR 1985 kar in Mallanna Vs Dr.Abdul Nabi- wherein it is held that:-
Registration Act, 1908 (Central Act No.16 of 1908) Sec. 17(2)(v)- The agreement by which right is acquired to have a document compulsorily registerable under Sec.17(1) creating or extinguishing title, falls within Sec.10 HRC No.245 of 2009
agreement of sale or contract to sell being unregistered cannot in law crate or extinguish interest in property in view of Sec.17(b).
Defendant in possession of property under mortgage executed by plaintiff. Ten days after mortgage deed an agreement was executed by plaintiff borrowing a sum of Rs.400/- on conditions (i) repayment in ten months, (ii) on failure, to sell the mortgaged houses in favour of defendant by executing registered sale deed for same amount and (iii) upon failure, defendant to get sale deed registered through court. In the suit for redemption, the lower courts treating the said agreement as agreement of sale and possession as covered by Sec.53A of Transfer of Property Act, held against the plaintiff. In second appeal:
Held: The agreement of sale or a contract to sell being an unregistered one cannot, in law, create any interest in the suit property or extinguish any one's interest in the suit property in view of Sec.17(b) of the Indian Registration Act.
The terms of the agreement made it abundantly clear that the agreement itself will be a document falling within the ingredients of Sec.17(2)(v) of the Indian Registration Act as by the agreement by defendant can be said to have acquired a right to have a document creating title in himself executed and which document would be compulsorily registerable under Sec.17(1) of the Indian Registration Act. Therefore the agreement by itself cannot, in law, lead to the conclusion that the right of the plaintiff to redeem the mortgage of the suit property came to be extinguished. It might have been otherwise if he had sold the property by registered sale deed or if he had relinquished the right of equity of redemption 11 HRC No.245 of 2009 by a registered document executed by him in favour of the defendant.
b.) In this regard the petitioner counsel has relied on the decision laid down by the Hon'ble Supreme court of India, in (2009)2 SCC 532 in Avinash Kumar Cauhan Vs Vijay Krishna Mishra- wherein it is held that:-
Civil Appeal No.7350 of 2008, decided on December 17, 2008 A. Stamp Act, 1899 - Ss. 33, 35 and 36 -
Power of court to impound insufficiently stamped instrument suit for recovery of sale consideration -sale agreement produced insufficiently stamped effect court before admitting document/instrument, held, is empowered to direct payment of unpaid duty and penalty- even an unregistered sale deed requires payment of stamp duty applicable to deed of conveyance.
B. Stamp Act, 1899 - S.35 - for any purpose admissibility of insufficiently stamped or unstamped document for collateral purposes collector's permission under S. 165(6) of M.P.Land Revenue Code, 1959 (the code, 1959) not given (the land, a scheduled tribal land, required statutory permission for transfer) - appellant-plaintiff instituting a suit for recovery of consideration money whether liable to pay unpaid duty and penalty appeallant money whether liable to pay unpaid duty and penalty
- appellant taking plea tat document was admissible for collateral purpose - held, if all purposes for which the document is sought to be brought in evidence are excluded, there is no way 12 HRC No.245 of 2009 the document would be admissible for collateral purposes - held, if all purposes for which the document is sought to be brought in evidence are excluded, there is no way the document would be admissible for collateral purposes - otherwise validity of sale deed either under the code, 1959 or the Registration Act was not in issue M.P.Land Revenue Code, 1959 (20 of 1959) -S.165(6).
Held: As adequate stamp duty admittedly was not paid, the court was empowered to pass an order in terms of Sec.35 of the Stamp Act, 1899 (the Act). The unregistered deed of sale is an instrument which requires payment of the stamp duty applicable to a deed of conveyance. The court being an authority to receive a document in evidence is bound to give effect thereto. Sec 33 of the Act casts a statutory obligation on all the authorities to impound a document. By reason of the statutory interdict, no transfer at all is permissible. Even transfer of possession is also not permissible.
The contention that the document was admissible for collateral purpose is not correct. Parliament has, in Sec 35, advisedly used the words "for any purpose whatsoever". Thus, the purpose for which a document is sought to be admitted in evidence or the extent thereof would not be a relevant factor for not invoking Sec.35. If all purposes for which the document is sought to be brought in evidence are excluded, there is no reason as to how the document would be admissible for collateral pruposes.13 HRC No.245 of 2009
c.). In this regard the petitioner has relied on the decision laid down by the Hon'ble High Court of Karnataka in 2005 (1) KCCR 436, in Dr. S.M.Suresh Vs G.P.Vamana Rao-
wherein it is held that:-
Regular first appeal No.1172 of 2004, decided on 18.11.2004.
C. Transfer of property Act, 1882- Sections 58, 60 and 91 suit for redemption when the house property is given to the possession of another under an unregistered usufructuary mortgage deed, the landowner can file a suit for recovery of possession. The question of the landowner filing a suit for redemption in such a case does not arise.
D. Transfer of Property Act, 1882- Sections 105 and 108 right of reentry under Transfer of Property Act there is no statutory right of re-entry as was under Karnataka Rent Control Act.
When the landlord is not willing to re-
let the premises after reconstruction, the court has no jurisdiction to compel the landlord to re-let to the tenant.
d.) In this regard the petitioner has relied on the decision laid down in ILR 2002 KAR 4231 in Tuljappa and another v/s Subhas and others wherein it is held:-
(B). Registration Act, 1908 (Central Act No.16 of 1908) Sections 17(1)(a) to (e), 17(2)(11) and 49 when a document becomes admissible in evidence- wherein it is held that:-14 HRC No.245 of 2009
Held: as the proviso to Sec.49(1) clearly states that every document of the kinds mentioned at clauses (a) to (e) of Sec. 17(1) of the Registration Act, 1908 if duly registered takes effect as regards the property comprised therein against every unregistered document. Which will have no legal effect in view of Sec.49(1) (cc) of the Act as such document cannot be received as evidence, in the present case non consideration of Ex.D3 by the courts below that Ex.D3 is not admissible in evidence for want of registration of the same is in conformity with Sec.17(1)(c) read with Sec.49(c) of the Act, 1908.
14. Relying on the ratio laid down in the above decisions Sec.17(b) of the Indian Registration Act clearly states that the agreement which is un-registered one cannot in law create any interest or extinguish once interest in the schedule premises. The Ex.R.27 is the mortgage deed which is compulsory registerable under Sec.17(1) of registration act. In the absence of registration the said document will not create any right in favour of the respondent and said document cannot be looked into and further to hold un-registered documents as mortgage would amount to negating the provisions of Sec.17 of Registration Act. The said document unless it is registered cannot create any interest in the immovable property has per the provisions of Sec.17. Therefore the possession of the respondent should be construed only as permissive possession and it is impermissible to contend that the petitioner should file suit for redemption when there is no legal mortgage. As such Ex.R.27 mortgage deed cannot be looked in to create any right or interest in favour of the 15 HRC No.245 of 2009 respondent. In the absence of the said document the status of the respondent would be has admitted of a tenant. The respondent was tenant under the vendor of the petitioner and after the registered sale deed executed by the vendor of the petitioner in the favour of the petitioner as per Ex.P.1. The tenancy of the respondent is attorned in the favour of the petitioner. Inview of the same the petitioner has proved jural relationship of land lord and tenancy between himself and the respondent as contended. Accordingly I answer point No.1 in the affirmative.
15. Point No.2:- The petitioner has contended that the respondent is in due sum of Rs.5,950/- being the arrears of rent from February 2008 to July. In this regard the petitioner has examined himself as PW1 and has filed is affidavit in lieu in his chief examination and has reiterated the said fact and has got marked Ex.P.2 office copy of legal notice dated 14.03.2009 issued by him to the respondent calling upon the respondent to pay the above arrears of rent, which is served on the respondent and he has sent reply on 28.03.2009 denying the contention of the petitioner. The respondent has not placed any material to show that he has paid the rent of above said period to the petitioner. At this juncture it is relevant to note Sec 27(2)(a) Karnataka Rent Act which reads as follows:
Sec 2. The court may, on an application made to it in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds 16 HRC No.245 of 2009 only, namely;
(a) That the tenant has neither paid nor tendered the whole of the arrears of the rent and other charges legally recoverable from him within two months from the date on which a notice of demand for payment of has been served o him by the landlord in the manner provided in Sec.106 of the Transfer of Property Act, 1882 (Central Act 4 of 1882).
16. The petitioner has issued the statutory notice as per ExP2 calling upon the respondent to pay the above arrears of rent on 14.03.2009 for which the respondent has replied on 28.03.2009. The petition is filed on 07.08.2009 after lapse of 2 months mandatory period given to the respondent for payment of the arrears of rent after demand by the petitioner. As such the petitioner has complied the mandatory provisions of 27(2)(a) of Karnataka Rent Act and the respondent has not placed any materials to show the payment of arrears of rent to the petitioner and is liable for eviction under this ground. Hence I answer point No.2 in the affirmative.
17. Point No.3:-The petitioner in his eviction petition supported by affidavit submitted that the petition schedule premises is required by him for his own use and occupation. So as per explanation I to section 27 (2) (r) the court shall presume that the premises is so required by the petitioner.
17 HRC No.245 of 200918. PW-1 petitioner also deposed that he requires the schedule premises for his own use and occupation. That the petitioner has no other suitable accommodation to accommodate him. The respondent has not adduced counter evidence nor produced documents to show that in addition to the said property petitioner is possessing some other property which is suitable for the said purpose. Since the question of hardship having vanished with the old rent Act, the respondent cannot postpone the eviction on the ground of hardship to him. Under clause (r) of the Act it is enough if the petitioner says that he requires the property for his use and occupation, whether in the same form or after reconstruction, provided such landlord has no other reasonably suitable accommodation. The existence of other suitable accommodation to him having not been demonstrated by the respondent, the said evidence of PW-1 remained un-rebutted. In the instant case, the petitioner has pleaded and also deposed before the court about his requirement of the petition schedule premises. Absolutely no materials are placed by the respondent to disbelieve the above said contentions of the petitioner. In view of my above discussion, I am of the considered opinion that the petitioner has proved that he required the petition schedule premises for his self occupation and he is not having any other reasonably suitable accommodation for the said purpose. Hence I answer point No.3 in the affirmative.
19. Point No.4:- In view of my findings on points No.1 to 3 as above, the petitioner is entitled to evict the respondent 18 HRC No.245 of 2009 from the petition schedule property. Hence I proceed to pass the following :-
: ORDER :
Petition filed by the petitioner under section 27 (2)(a) & (r) of the Karnataka Rent Act 1999 is hereby allowed.
The respondent is hereby directed to quit, vacate and handover vacant possession of the petition schedule property to the petitioner within 3 months from the date of this order, failing which, the petitioner is at liberty to evict the respondent through the assistance of this court as provided under law.
The respondent in order to resist the eviction order section 27(2) (a) of the Karnataka Rent Act shall deposit into the court within one month from the date of this order, the arrears of rent at the rate of Rs.350/-p.m. from February 2008 till date.
No order as to costs.
(Typed to my dictation through online, corrected and then pronounced by me in the open court, on this 2nd February 2015) (J.P.ARCHANA) XVIII ADDL. JUDGE, COURT OF SMALL CAUSES, MEMBER,MACT-4, BANGALORE.19 HRC No.245 of 2009
SCHEDULE All that piece and parcel of the commercial property bearing No.3, opposite Gokula Colony (Formerly Khanushumari No.15 of Poornapura Village, Geddalahalli Gram Panchayath, Bangalore) now with in the limits of Bruhath Bangalore Mahanagara Palike Ward No.2 with PID No.2- 105-3, 1st main, Sundaranagara, Bangalore-560 054, measuring East to West: 10' feet and North to South 12' feet, in all about 120 sq. feet bounded on the:
East: Property of Sri. Jayappa West: Road North: Tea Shop and Passage South: Garage of Sri. Jayappa Annexure:-
List of witness examined for the petitioner:-
PW-1 S.S. Jayappa PW-2 C.S. Chandrapraba
List of witness examined for the respondent:-
RW1 Vijayakumar C. RW2 Lakshmipathi H. RW3 Narayanaswamy RW4 K.N. Viswanath
List of documents marked on behalf of the petitioner:-
Ex.P.1 Copy of sale deed Ex.P.2 Copy of legal notice Ex.P.3 copy of reply notice Ex.P.4 copy of legal notice Ex.P.5 copy of reply notice Ex.P.6 copy of legal notice Ex.P.7 courier notice
List of documents marked on behalf of the respondent:-20 HRC No.245 of 2009
Ex.R.1 Rental agreement Ex.R.1a Signature Ex.R.2 Rental agreement Ex.R.2a Signature Ex.R.2b Money order receipt Ex.R.3 to 15 Money order receipts Ex.R.16 Rent agreement Ex.R.17 Copy of legal notice dated 14.03.2009 Ex.R.18 Copy of reply notice dated 28.03.2009 Ex.R.19 Copy of legal notice dated 16.06.2008 Ex.R.20 Copy of reply notice Ex.R.21 Copy of legal notice dated 17.04.208 Ex.R.22 Copy of reply notice Ex.R.23 Form No.B of Food and Civil Supplies Dept. Ex.R.24 Form No.D of Food and Civil Supplies Dept. Ex.R.25 Electricity bills and receipt Ex.R.26 Copy of deposition in HRC No.248 of 2009 Ex.R.27 Mortgage agreement
Ex.R.27a to d Signature of respondent Ex.R.27 (e) Sign of RW4 Ex.R.28a to d Signature of Chandra Prabha C.S. Ex.R.29 Sign of RW3 XVIII ADDL. JUDGE, COURT OF SMALL CAUSES, MEMBER,MACT-4, BANGALORE.