Karnataka High Court
Sri Nanda Kishore Raj vs Smt. S Vasantha Lakshmi on 11 July, 2022
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
R.F.A.No. 471 OF 2022 (POS)
BETWEEN
SRI. NANDA KISHORE RAJ
S/O LATE CYPRAIN BALARAJ
AGED ABOUT 42 YEARS
R/AT MP/3, CHOWDESHWARI
TEMPLE STREET, NAGARATHAPET
BENGALURU - 560 002.
...APPELLANT
(BY SRI. PRAKASH T. HEBBAR. , ADVOCATE)
AND
SMT.S. VASANTHA LAKSHMI
W/O T.K. LAKSHMAN
AGED ABOUT 42 YEARS
R/AT NO.38, 38/1 & 38/2
GOVINDAPPA ROAD, BASAVANAGUDI
BENGALURU - 560 004.
...RESPONDENT
(BY SRI. M. PRAKASHA AND
SRI. K.NAGENDRA NAIK, ADVOCATES)
THIS APPEAL IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 OF CPC 1908 AGAINST THE JUDGMENT AND DECREE
DATED: 05.01.2022 PASSED IN O.S.NO.8214/2014 ON THE FILE OF
THE X ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU, DECREEING THE SUIT FOR POSSESSION, ARREARS
OF RENT AND DAMAGES AND ETC.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal by the defendant in O.S.No.8214/2014 is directed against the impugned and decree dated 05.01.2022 passed by the X Addl.City Civil and Sessions Judge, Bengaluru, whereby the said suit filed by the respondent -
plaintiff for ejectment of the appellant - defendant from the suit schedule premises and other reliefs was decreed by the trial court.
2. Heard the learned counsel for appellant and learned counsel for the respondent and perused the material on record.
3. The material on record discloses that the respondent
- plaintiff instituted the aforesaid suit for ejectment and other reliefs against the appellant - defendant, who contested the suit by filing his written statement, pursuant to which, the trial court framed the following issues:-
1) Whether the plaintiff proves that she is the absolute owner of the suit schedule property?
2) Whether the plaintiff proves that the defendant is the tenant as per oral agreement dt:15.12.2009?-3-
3) Whether plaintiff proves that defendant is agreed to pay monthly rent of Rs.33,000/- p.m.?
4) Whether the plaintiff proves that the suit schedule property is gifted by her husband T.K. Lakshman on 09.09.2014?
5) Whether plaintiff proves that defendant is due of Rs.2,64,000/-?
6) Whether plaintiff proves that she is in need of bonafide requirement of suit schedule property?
7) Whether defendant proves that the T.K. Ramesh is executed lease agreement on 01.12.2009 for a period of ten years and he has received advance of Rs.27,00,000/-?
8) Whether the defendant proves that the plaintiff and her husband colluded themselves and created some documents with an intention to grab the huge advance amount of Rs.27,00,000/- received from defendant and issued a notice to the defendant through plaintiff dt:17.09.2014?
9) Whether the defendant proves that he has filed a suit against plaintiff and others in OS No.1056/2015 for permanent injunction?
10) Whether the defendant proves that there is no cause of action to file the suit?
11) What order or decree?
-4-4. The plaintiff examined herself as PW-1 and Exs.P1 to P13 were marked. The defendant examined himself as DW-
1 and Exs.D1 to D74 were marked. After hearing the parties, the trial court decreed the suit in favour of the plaintiff by directing the defendant to vacate and deliver vacant possession of the suit schedule premises to her within a period of two months and also directed him to pay arrears of rent of Rs.2,64,000/- to the plaintiff, in addition to directing enquiry into future mesne profits. Aggrieved by the impugned judgment and decree, the appellant is before this Court by way of the present appeal.
5. A perusal of the material on record will clearly indicate that all the contentions urged by the appellant -
defendant in the suit as well as before this Court have been elaborately considered and appreciated by the trial court extensively and the following findings have been recorded as under:-
On hearing and on perusal of the relevant materials and the available evidence on record, my findings on the above issues are as under:-5-
Issue No.1 : In the affirmative Issue No.2 : In the affirmative Issue No.3 : In the affirmative Issue No.4 : In the affirmative Issue No.5 : In the affirmative Issue No.6 : In the affirmative Issue No.7 : In the affirmative Issue No.8 : In the negative Issue No.9 : In the affirmative Issue No.10: In the negative Issue No.11: As per final order, for the following:
-: REASONS :-
8. Issue No.1 & 4:- The plaintiff has specifically claimed her absolute title over the suit schedule premises by virtue of the disputed gift deed dated 09.09.2014. It is her specific claim that originally this schedule property was acquired by her husband T.K. Lakshman under a family partition dated 04.03.2005 and thereafter he gifted it to her as per the above said gift deed of 2014 and since then she has become the absolute owner of the suit schedule property. It is her further case that though the defendant is in occupation of the schedule premises as a tenant, but he was inducted as tenant by her husband T.K. Lakshman under an oral rent agreement dated 15.12.2009 and after the above said gift deed in her favour she became not only the owner but also landlady of the schedule premises and as such there is a legal and statutory attornment of tenancy in her favour. Per contra the defendant has categorically denied this claim of the plaintiff.-6-
9. At the very out set the defendant has not only denied the plaintiff's title over the schedule property but also disputed and denied the existence of any such oral lease agreement between himself and her husband T.K. Lakshman nor he has admitted that by virtue of the said gift deed now the plaintiff has become the owner and landlady of the schedule premises. In view of this specific denial of title of the plaintiff over the schedule premises, this specific issue came to be framed which requires consideration. As stated above, the plaintiff in support of her claim has deposed before the court as P.W.1 and she has produced 13 documents of which Ex.P.1 is the said gift deed executed by her husband in her favour. As regards Ex.P.2, it is the certified copy of the said partition deed of the year 2005 entered into between her mother-
in-law and her 4 sons i.e., husband of the plaintiff T.K. Lakshman, his other 3 brothers T.K. Ramesh, T.K. Prabhakar and T.K. Yashwanth and one sister Smt.Bhuvaneshwari. According to P.W.1 under Ex.P2, the schedule premises which is shown as schedule 'D' in item No.1 property in Ex.P.2 said to have been allotted to the share of her husband T.K. Lakshman.
10. As regards Ex.P.3, it is the copy of legal notice dated 17.09.2014 issued to the defendant on behalf of plaintiff and her husband calling upon him to pay the arrears of rental amount and to vacate the schedule -7- premises. To show that this legal notice was served upon the defendant, P.W.1 has produced two postal AD slips and two postal receipts which are marked from Ex.P.4 to P.7 respectively. As regards Ex.P.8, it is the reply given by the defendant in response to Ex.P. As regards Ex.P.9, it is the certified copy of of the order sheet in PCR No.4892/2016 which is said to be a private complaint filed by P.W.1 against her brother-in-law T.K. Ramesh and the present defendant making allegations of cheating against them. Ex.P.10 is the certified copy of the said complaint. She has also produced Ex.P.11 which is the pass book to show regarding the receipt of monthly rental amount from the defendant. As regards Ex.P.12, it is the rent receipt. She has also produced the notice issued by the police U/S 91 of Cr.P.C. with regard to her lodging of the complaint.
11. As against the above oral and documentary evidence of P.W.1, the defendant has also deposed before the court as D.W.1 and he has also relied on as many as 74 documents. As regards Ex.D.1, it is the photograph of the suit schedule premises. Ex.D.2 is the diary with regard to receipt of monthly rental from D.W.1 by the original owners Munilakshmamma and thereafter by T.K.Ramesh. Ex.D.3 to D.34 are the receipts issued by T.K.Ramesh since 1982 till 2013. As regards Ex.D.35, it is the certified copy of the order sheet in OS 1056/2015 which is filed by D.W.1 against the present P.W.1, her -8- husband and T.K.Ramesh for the relief of permanent injunction with respect to the suit schedule premises.
12. As regards E.D.36 & 37, they are the certified copies of two cheques of Rs.4,00,000/- and Rs.2,50,000/-said to have been issued by D.W.1 in favour of T.K. Ramesh and his brother T.K. Yashwantha Kumar. He has also produced the certified copy of his deposition in OS.No.1056/2015 which is marked at Ex.D.38. He has also produced the certified copy of of the deposition of the present P.W.1 in the said suit which is marked at Ex.D.39. He has also produced the certified copy of the lease deed dated 01.12.2009 alleged to have been entered into between himself and the said T.K. Ramesh to show that he is the tenant under the said T.K.Ramesh.
13. As regards Ex.D.41, it is the certified copy of the pass book standing in his name which is produced to prove the payment of the advance amount paid to T.K. Ramesh. As regards Ex.D.42, it is one such certified copy of his pass book which once again reveals the entries with regard to transfer of amount from his account to the account of T.K. Ramesh. As regards Ex.D.43, it is the certified copy of the pass book of his savings bank in Oriental Bank of Commerce. He has also produced the certified copy of the tax registration certificate pertaining to his business which is marked at Ex.D.44 and Form -9- No.4 in connection with the said tax certificate which is marked at Ex.D.45. Similar documents are produced at Ex.D.46 & D.47 respectively. D.W.1 has also produced the certified copy of the legal notice issued by him to T.K. Ramesh dated 26.05.2014 which is marked at Ex.D.48. As regards Ex.D.49, it is the certified copy of the postal AD slip with regard to the issuance of Ex.D.49 legal notice. As regards Ex.D.50, it is the certified copy of the reply notice issued by T.K.Ramesh in response to his notice.
14. As regards Ex.D.51, it is the certified copy of the cheque of Rs.46,000/- paid in the name of T.K. Ramesh. Similar documents are produced at Ex.D.52 & D.53 for an amount of Rs.69,000/- and Rs.23,000/-respectively. As regards Ex.D.54, it is the certified copy of the postal cover with regard to receipt of notice by T.K. Ramesh. D.W.1 has also produced the certified copy of the legal notice issued by P.W.1 which is at Ex.D.55. As regards Ex.D.56, it is the certified copy of his reply issued to Ex.D.55 notice and Ex.D.57 is the certified copy of the postal AD slip.
15. D.W.1 has also produced various electricity paid bills and receipts which are marked from Ex.D.58 to D.61. He has also produced the certified copy of the khatha certificate and khatha extract pertaining to the schedule premises dated 03.03.2014, 23.09.2014, which
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are marked from Ex.D.62 to D.65 respectively to show that the schedule premises is standing in the name of T.K. Ramesh. He has also produced the certified copy of the show cause notice issued by BBMP in the name of T.K. Ramesh which are produced at Ex.D.66 and D.67 respectively. He has also produced various photographs which are marked from Ex.D.68 to D.73 and the CD containing these photographs at Ex.D.74 which are produced to show that he is running his business in silver and gold refinery work in the schedule premises. In the backdrop of this oral and documentary evidence placed before the court by both the parties now it is to be seen whether the plaintiff could prove her title over suit schedule property under issue No.1.
16. The learned counsel for plaintiff argued that D.W.1 is a total stranger to the family of P.W.1, her husband and his brothers. It is further argued that he being a mere tenant in the schedule premises, he cannot question the title of P.W.1 or her husband over the schedule premises nor he can question the said partition deed entered into between the husband of P.W.1 and his brothers as per Ex.P.2. By countering this argument, the learned counsel for defendant also submitted that since the title of P.W.1 is under serious dispute, the first issue is framed casting burden on her to prove her title and ownership over the schedule property.
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17. It is further argued on behalf of the plaintiff that Ex.P.1 gift deed is in favour of P.W.1 which was executed by her husband who had acquired the schedule property under Ex.P.2 partition deed dated 04.03.2005 and therefore a valid and legal transfer of ownership has been passed on to P.W.1 which cannot be questioned by D.W.1. On the contrary it is argued that if at all anybody has objection with regard to title and ownership of P.W.1 or her husband over the schedule property, it is only the family members of her husband who are competent to question the legal rights of P.W.1 over the schedule property and D.W.1 being a mere tenant of the schedule premises is estopped from raising any objection with regard to title of P.W1. In view of these rival submissions made by the counsels on behalf of their respective parties and in view of the specific issue having been framed in this case touching the issue regarding the title of P.W.1, it is to be seen whether P.W.1 has acquired any legal and valid title over schedule property by virtue of the above said deeds.
18. The learned counsel for defendant vehemently argued that heavy burden is cast on the P.W.1 to prove her alleged lawful title over the suit schedule property. He has even argued to the extent that even the alleged adoption deed of T.K. Ramesh has not been proved by P.W.1 in accordance with law as the said document is not tendered in evidence nor it is got marked. In this
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regard he has invited my attention to the observations made by the Hon'ble High Court in WP No.1505/2020.
19. On perusal of the records it is revealed that WP No.1505/2020 was filed by the present D.W.1 challenging the order passed by this court on IA No.VII which was filed by him seeking to summon the present D.W.2 T.R. Ramesh seeking direction to him to produce the certified copy of the said adoption deed executed in his favour and the said IA was rejected by my predecessor-in-office which order was assailed by D.W.1 in this writ petition. The order of the Hon'ble High Court reveals that during pendency of the said writ proceeding in view of the undertaking given by the counsel for the present plaintiff that a certified copy of the said adoption deed of 1966 would be produced in this case, the said writ proceeding was disposed off permitting the present plaintiff to place on record the said copy of adoption deed as undertaken by her counsel. By drawing my attention to this observation made by the Hon'ble High Court, the learned counsel for defendant urged with some vehemence that in view of this observation it has become incumbent upon the present P.W.1 even to prove the said adoption deed of the said T.K. Ramesh. How far this contention raised by the defendant and the exhaustive argument canvassed on his behalf could be sustained having regard to the nature of this proceeding.
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20. It is pertinent to note that the Hon'ble High Court has merely permitted the present P.W.1 to place on record the copy of the said adoption deed of 1966 and nowhere any such specific directions have been issued directing this court to not only receive the said adoption deed on record but to receive the evidence on the said document. In other words as rightly pointed out by the learned counsel for plaintiff, the present P.W.1 was not at all directed by the Hon'ble High Court to lead any additional evidence on this adoption deed nor there is any such specific direction by the High Court to frame any specific additional issue with regard to this adoption deed. When no such directions are issued, PW1 need not be called upon to prove this adoption.
21. Even otherwise it is relevant to note that this adoption deed of the year 1966 pertains to the present D.W.2 who is none other than the brother of the plaintiff's husband. In compliance of the said observation of the Hon'ble High Court, the learned counsel for plaintiff produced the certified copy of the said adoption deed of 1966 before this court. As per this document, the present D.W.2 was adopted by Munilakshmamma who was the original owner of the suit schedule property since she was issueless. The natural mother of D.W.2 i.e., Indiramma is shown to have legally given D.W.2 in adoption to the said Munilakshmamma w/o Lakshman Chetty. It is revealed that since the said Lakshman
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Chetty and Munilakshmamma the original owners of the schedule property were issue-less and as they had brought up the present D.W.2 since his childhood, out of their free wish and will they took him in adoption. This document is a registered deed which has remained unchallenged by anyone till this date.
22. It is pertinent to note that the above said adoption deed has come into existence in the year 1966 and nobody has challenged the same till this date including the adoptive parents of D.W.2 and his own brothers of his genitive parents. Under such circumstances how could D.W.1 being a total stranger to the family of either Munilakshmamma or to the present plaintiff and D.W.2, is competent to question the validity or legality of the said adoption deed is the material aspect which requires consideration. The Hon'able High Court has well settled the position of law in this regard in a decision reported in Veerabhadrayya R. Hiremath & ors. v/s Irayya A.F Basayya Hiremath in ILR 2006 Kar 1740 as under:
Hindu Adoptions and Maintenance Act 1956- Sec. 16- Adoption- Plea of fraud-Who can challenge-Held, In the normal circumstances, adoption can be challenged either by the natural parents of the boy or by the adoptive parents or by the child who has been given in adoption. But, the plaintiff is stranger to the defendant. If really a fraud had been played nothing prevented the parties from
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filing a suit for cancellation of the adoption, 6 years after the death of defendants adoptive father. Therefore, there is no cause of action to file the suit".
23. The proposition of law laid down in the above cited decision could aptly extended to the facts on hand for the simple reason that as stated supra, DW1 being a total stranger to the family of PW1 or to DW2, he is estopped from questioning the validity of the said adoption of DW2 which has taken place about more than 50 years back. Even otherwise D.W.1 himself has categorically admitted in his evidence in O.S.No.1056/2015 which is filed by him connected to the present suit that D.W.2 was the adoptive son of Munilakshmamma. He himself has produced the certified copy of his deposition in the said suit which is marked at Ex.D.38. In para-2 of his cross-examination as per Ex.D.38 on page-9 DW1 has unequivocally admitted that D.W.2 is the adoptive son of Munilakshmamma and Krishna Chetty. Even he has not specifically denied whether Prabhakar, husband of P.W.1 and Yeshwanth are the brothers of D.W.2. This line of his admission runs thus:-
"I do not know whether Prabhakar, Lakshman, Yeshwanth are brothers. T.K. Ramesh is the adoptive son of Munilakshmamma and Krishna Chetty".
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24. The above categorical admission of D.W.1 now clearly debars him from taking up a contra contention questioning the said adoption deed of D.W.2. This admission of D.W.1 further absolves P.W.1 of further proving this adoption deed. Therefore when Ex.D.38 being the copy of his own deposition in the connected matter which is produced by him itself clearly reveals that he has admitted the status of D.W.2 as the adoptive son of Munilakshmamma, then no amount of any oral arguments or submissions are permitted questioning the validity of this adoption deed.
25. Furthermore D.W.1 has also ventured to question the subsequent partition deed of 2005 as per Ex.P.2 which has been entered into between D.W.2 and his brothers under which the schedule property has been allotted to the share of the husband of P.W.1. Again he being a mere tenant in the schedule property is estopped from questioning the legality of even this partition deed which is in no way concerned either to him or to his family. On the other hand he himself has admitted this partition deed during the cross-examination of D.W.2.
26. D.W.2 was summoned and examined by D.W.1. It is pertinent to note that having admitted in his own evidence as per Ex.D.38 that D.W.2 is the adoptive son of Munilakshmamma as stated above, a desperate attempt has been made by D.W.1 to once again deny this
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fact in the chief-examination of D.W.2. It is pertinent to note that at the first instance D.W.2 was examined-in- chief by the counsel for D.W.1 and in his chief examination itself D.W.2 has clearly stated that his biological mother is Indiramma whereas adopted mother is Munilakshmamma. He has also stated that there is a registered adoption deed though the copy is not with him and the certified copy is available in the Sub Registrar's office. The other suggestions have been denied by him that he is not the adoptive son of Munilakshmamma and no such adoption deed has been registered.
27. As discussed supra D.W.1 has lost sight of the fact that he himself had admitted in his earlier deposition regarding the adoption of D.W.2 as per Ex.D.38 and therefore it was not open for him to deny the same subsequently in the cross-examination of D.W.2. It is pertinent to note that though the subsequent line of cross- examination of D.W.2 is shown to be in the form of cross-examination by the defence counsel, but no attempt was made seeking permission to cross examine D.W.2. On the other hand the defence counsel went on cross-examining him in the same line of chief- examination. In para-3 of the evidence of D.W.2 there are material positive statements being extracted from his mouth as under:-
"It is true to suggest that in the year 2005 we brothers entered into registered partition deed (Ex.P.2). As
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per Ex.P.2 partition deed suit property came to the share of T.K. Lakshman. Even after partition we brothers were residing jointly. In order to avoid the income tax problem, as all the properties were in my name, we brothers executed formal partition deed as per Ex.P.2".
28. The above positive statements are given by D.W.2 to the effect that in the year 2005 they entered into partition deed as per Ex.P.2 under which the schedule property fell to the share of T.K. Lakshman and in order to avoid income tax problems the said partition deed was formally executed. Thus by pointing out the last statement of D.W.2 that Ex.P.2 was a nominal partition deed entered into between the brothers, again the learned defence counsel tried to project before the court that still D.W.2 continues to be the owner of schedule property. However this statement appears to be contrary to the stand taken by D.W.1 in this case, because as discussed supra at the first instance D.W.1 has contended that his grand-father and after his death, the father of D.W.1 and thereafter D.W.1 continued to be the tenant of the schedule property under the original owner Munilakshmamma. Further an attempt is made to deny the ownership of D.W.2, but contrary to such stand again it is argued that Ex.P.2 was a nominal partition deed never acted upon by the brothers.
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29. Thus what could be gathered from all these inconsistent stands taken by D.W1 is that he is attempting to change his stands as per the situation to suit his defence. However it has not been substantiated as to who became the owner of the schedule property after the death of the original owners. Therefore from the contentions and the stand taken by D.W.1 it is revealed that just to evade the legal consequences of the eviction process he appears to have gone to the extent of disputing the very flow of title of the suit schedule property from the original owners to the present plaintiff.
30. As held above, DW1 being a mere tenant in the schedule property is estopped from questioning title of the original owners or even the subsequent owners which is a well established position of law. The Hon'ble High Court has well settled this position of law holding that during the subsistence of tenancy, a tenant is estopped from questioning the title of the landlord. My contention is supported by a decision reported in Smt. Mahanth Kumari and another v/s Sri. S. Vijaya Kumar in ILR 2011 KAR 3847 wherein this aspect has been well settled as under:
(C )--CPC Sec. 96--Suit for ejectment-- Decreetal of--Appealed against--Appellants disputing the title of the owner in respect of the leased premises--Held, the tenant in an eviction suit is estopped from
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questioning the title of the landlord U/S 116 of the Evidence Act--The question of title to the property in an eviction case can be gone into only incidentally to decide the validity of lease-- once the payment of the rent by the tenant to the landlord is evidenced, the jural relationship between the parties cannot be denied--On facts, held, the respondent purchased the suit schedule 'A' property by a registered sale deed, dated 17/4/2002 (Ex.P1) executed by Sri. Dhanpal Reddy and Narayana Reddy. The document effecting the change of khata in favour of the respondent pursuant to the said sale deed is at Ex.P2. The said Dhanpal Reddy and Narayana Reddy sent the notice, dtd. 28/5/2002 (Ex.P3) to the appellants informing the appellants of the said sale and of the consequent attornment of their tenancy to the respondent. The notice further calls upon the appellants to pay the rent to the respondent. Therereafter, the respondent caused the issuance of the quit notice, dtd. 6/7/2002 (Ex.P4) to the appellants. The receipt of these notices by the appellants is not in dispute. They have not issued any reply denying the contents of the said notices. In the course of his cross examination, DW1 (the appellant No.2) has admitted that he has not replied to these two notices.
The appellants cannot deny the title of the respondent or of his vendors to the suit schedule 'A' property. On the slender and specious grounds, the appellants cannot become the upsettors or overthrowers of the title of the respondent's vendors to the suit
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schedule 'A' property. In view of the rent receipts at Ex.D1 and D2, the status of the appellants as the lessees under the respondent's vendors (Narayana Reddy and Dhanpal Reddy) cannot be disputed at all. The respondent has stepped into the shoes of his vendors. As a successive owner and lessor of the property, he would have the same right which his vendors had.--Evidence Act Sec.116 --discussed.
31. Thus, the above proposition of law makes is abundantly clear that where the tenant once tenders the rent to the subsequent owner though knowingly or unknowingly, he is debarred subsequently from questioning the authority of such person by denying his title. The principles laid down in the above cited decision could aptly be extended to the present facts for the simple reason that D.W.1 in this case has also clearly admitted in his evidence that he had tendered rental amount to the husband of PW1 as per Ex.P12 though in his further voluntary statement he has stated that he had paid the said amount as per the say of DW2. This material piece of his admission is found in his cross examination dtd.18.12.2018 in para 5 which reads thus:
It is true to suggest that as per Ex.P12 paid Rs.20,000/- by cash and Rs.13,000/- through cheque to the plaintiff's husband as rent for the month of December 2013 AND January 2014. Witness volunteers that he paid
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it as per request of T.K Ramesh. It is true that cheques were encashed.
32. The above admission of DW1 clearly indicates that he had impliedly and expressly admitted the transfer of ownership of the suit property in the name of the husband of the plaintiff and therefore, he had tendered the said rental amount to him. If really he was not agreeable with the right of the plaintiff's husband of receiving the said amount, he would not have paid the said rental amount to him. Therefore, having clearly admitted the fact of earlier adoption of D.W.2 in the year 1966 as per Ex.D.38 deposition and thereafter the right of plaintiff's husband to receive the said rent amount from him as stated above, now his contention that PW1 or her husband had not title over the suit property, is unsustainable.
33. However the learned counsel for defendant has sought to rely on a couple of decisions in this regard. The first decision is reported in Sri Aralappa v/s Sri Jagannath and others in ILR 2007 KAR 339 wherein the Hon'ble High Court while dealing with the provisions of Section 5 of Transfer of Property Act and Section 34 of the Specific Relief Act held that in a suit for declaration of ownership and permanent injunction the plaintiff has to prove his title to the property and also possession as on the date of the suit and where a partition deed is sought to be relied
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on it cannot be said that under such partition deed there is any acquisition of title for the first time as the partition deed only recognizes an existing right which each party to the deed has in the joint property and no right springs from the deed of partition as the partition is not a transfer and it conveys nothing for the first time and ultimately the plaintiff therein was held not entitled to the declaratory relief regarding title.
34. With due regards to the proposition of law laid down in the above cited decision, it cannot be said that the same could be extended to the facts on hand for the reason that admittedly the present suit is not a suit for declaration of title of P.W.1 nor her claim for possession is based on any such title. On the contrary it is a simple suit for eviction against the tenant. Furthermore parties in the above said decisions were the family members and there was rival claim with regard to title over the disputed property which is not the circumstance involved in this case.
35. The second decision cited by the defence counsel is reported in S.K. Sattar, S.K. Mohd. Choudhari v/s Gundappa Amabadas Bukate in (1996)6 SCC 373 wherein it has been held that a co-sharer cannot initiate action for eviction of the tenant from the portion of the tenanted accommodation nor he can sue for his part of rent since the tenancy cannot be split up either any
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estate or any rent or any other obligation by unilateral act of one of the co-owners. It is further held that it will be opened to the tenant to show that the partition was not bonafide and was a sham transaction to overcome the rigours of Rent Control laws which protected eviction of the tenants except on specified grounds set out in the relevant statute.
36. Again the above proposition of law cannot be applied to the present case, because in the instant case although D.W.2 has stated that Ex.P.2 was a formal partition deed which was entered into in order to avoid income tax rigours and further admitted in para-4 of his evidence that as on 01.12.2009 when the lease agreement was entered into between D.W.1 & 2 the suit property was in the joint possession of D.W.2 and his brothers, but nowhere D.W.2 has stated that Ex.P.2 was never acted upon. On the contrary he himself by his own correspondence with D.W.1 had asked him to tender rent to the husband of plaintiff as he was allotted the suit schedule property under Ex.P.2- partition deed.
37. Furthermore again it is to be noted that in his further cross-examination done by the plaintiff's counsel in para-8 D.W.2 has unequivocally admitted that he along with all his brothers entered into partition in respect of entire joint family properties including the suit schedule property and also admitted that the suit schedule
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property fell to the share of the plaintiff's husband. Moreover, it is also relevant to note that had the parties to Ex.P2 had not acted upon this partition, DW2 and his other brothers would not have consented for the allotment of the suit property in favour of the plaintiff's husband nor they would have allowed him to subsequently gift this property away in favour of PW1. Therefore merely because a statement has been elicited from the mouth of DW2 to the effect that in order to avoid income tax rigours Ex.P.2 was formally entered into, that itself would not nullify the effect of this partition deed.
38. It is further to be noted that in the above decision cited by the learned defence counsel reported in Sattar's case, it was further observed in Head Note 'D' that under the proviso to Section 109 of Transfer of Property Act the lessor is duty bound to intimate the lessee about the transfer of ownership. It is held that requirement of knowledge and the communication of notice regarding transfer of part or the whole of the property in occupation of a tenant is a condition precedent for creating a liability in the tenant to pay rent to the transferee or assignee of the demised premises and it does not have the effect of postponing the assignment or transfer of property till the receipt of the notice. It is further held that the title passes to the assignee immediately on the execution of the deed of transfer or assignee.
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39. No doubt in the instant case the husband of P.W.1 has acquired the schedule premises by virtue of a partition, but it is relevant to note that immediately thereafter the present D.W.2 had intimated D.W.1 that future rents shall be payable to this brother the husband of P.W.1 and even D.W.1 is shown to have been aware of the said fact. D.W.1 himself has categorically admitted in his cross-examination that D.W.2 was not receiving the rent from February 2014 for the reason that he is no more the owner of the property and that he had asked him to tender the rent to the husband of P.W.1 and even D.W.1 has clearly admitted that D.W.2 had sent him notice stating that he is no more the owner of the property. This material piece of admission of D.W.1 is found in his cross-examination dated 01.12.2018 on page-11 which reads thus:-
"It is true to suggest that T.K. Ramesh not receiving the rent from February 2014 onwards for the reasons that he is no more owner of the property. T.K. Ramesh asked me to give rent to his brother T.K. Lakshman (plaintiff's husband) for the month of Dec.2013 and January 2014. It is true to suggest that T.K. Ramesh has sent notice stating that he is no more owner of the property therefore we are required to pay rent to plaintiff's husband".
40. The above admission of D.W.1 clearly indicates that in the year 2014 itself he was aware of the transfer of
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ownership of the schedule premises to the husband of P.W.1 even though the said title was shown to have been transferred by virtue of Ex.P.2. Moreover, as held above, he had also acknowledged the right of the husband of PW1 to receive rental as per Ex.P12. Therefore, the conduct of the parties and even as per the principles laid down in the above cited decision relied on by the defence counsel himself, since there was due intimation to DW1 with regard to the transfer of ownership from DW2 in favour of his brother, now it is not open to him to still question the right of either PW1 or her husband to exercise their rights over the suit property.
41. It is further relevant to note that in the above mentioned Sattar's case there were several co-owners or co-sharers of the leased property in question and each one of the several owners were entitled to the rental amount which is not the circumstance in the instant case since suit schedule property is admittedly the property initially acquired by the D.W.2 by virtue of his adoption to deceased Munilakshmamma and it is not the case of either parties that apart from D.W.2 there were other several co-owners of the schedule premises who were entitled to their respective shares in the rental amount tendered by D.W.1. Therefore the facts involved in the above cited decision cannot be equated to the facts on hand.
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42. The learned defence counsel has also vehemently argued that the original flow of title to D.W.2 from Munilakshmamma is not proved by the plaintiff in the instant case and unless and until the title of D.W.2 is legally proved it cannot be held that valid title has been passed in favour of either husband of P.W.1 or in favour of P.W.1. In this regard he has once again drawn my attention to the fact hat the disputed adoption deed or even the partition deed have not been proved by P.W.1 as required under law. In this regard, he has sought to rely on Sec. 12 of the Hindu Adoption and Maintenance Act 1956.
43. Sec. 12 of the Hindu Adoption and Maintenance Act 1956 which contemplates that an adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family and proviso (b) to Section 12 further contemplates that any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth and proviso (c) further contemplates that the adopted child shall not divest any person of any estate
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which vested in him or her before the adoption. The learned counsel has also cited a decision reported in S.P. Chengalvaraya Naidu (dead) by LRs v/s Jagannath (dead) by LRs and others in AIR 1994 SC 853 wherein it is held that withholding of vital document relevant to litigation by a party becomes fatal to his case and it amounts to fraud on court.
44. With due regards to the proposition of law laid down in the above cited decision and also the provision of law under the Act, it cannot be said that the same would help the defence of the defendant in this case in any manner for the simple reason that as already discussed supra D.W.1 is not a competent person to question the legality or validity of either the adoption of D.W.2 or acquisition of the schedule property by him from Munilakshmamma. It is also material to note that the scope of the present suit is very limited to the extent of considering whether or not P.W.1 is entitled to seek eviction of D.W.1 from the schedule premises and whether she could prove the jural relationship of landlady and tenant between herself and D.W1. If at all the said adoption of D.W.2 is to be challenged or if at all the said partition as per the Ex.P.2 is to be questioned, it is only for the members of the family who are concerned to it and D.W.1 being a tenant totally unconnected to the family or property of P.W.1, D.W.2 and his brothers, is estopped from questioning the legality or validity of these
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deeds. Consequently issue Nos.1 & 4 will have to be answered in favour of the plaintiff in the affirmative.
45. Issue No.2 :- P.W.1 has specifically stated that D.W.1 has become tenant under her husband as per the oral agreement dated 15.12.2009. According to her claim after her husband acquiring the schedule premises by virtue of Ex.P.2 partition deed in the year 2005, he inducted D.W.1 in the schedule premises under the said oral agreement dated 15.12.2009 by receiving advance amount of Rs.1,50,000/- from him for a monthly rental of Rs.33,000/- and this lease was for a period of 5 years from 15.12.2009. This claim of P.W.1 has also been seriously challenged and questioned by D.W.1. On the contrary it is his specific defence that D.W.2 had inducted him under the lease agreement which is produced at Ex.D.40.
46. It is interesting to note that at one breath DW1 seeks to rely on Ex.D40 by contending that under this document there existed the lease between himself and DW2, but during the evidence of DW2, he gave a clear go-bye to this stand by putting a contrary suggestion dis- owning Ex.D40. It would be relevant to refer this material piece of suggestion put to DW2 in his cross examination in para 7 on page No.4 which reads thus:
"....It is false to suggest that, there is no landlord and tenant relationship between
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myself and defendant. It is false to suggest that, under misrepresentation that myself is adopted son of Munilakshmamma got created bogus lease deed with defendant".
47. The above suggestions put to DW2 on behalf of DW1 are sufficient to falsify the defence of DW1 and even to nullify Ex.D40. When according to him the jural relationship of landlord and tenant exists between himself and DW2 and when it is suggested to DW2 that he has got created bogus lease deed with DW1, then it is for the defendant to prove under which lease agreement he was inducted as tenant of the suit property by DW2. Therefore, these material inconsistencies would clearly indicate the material fact that with a sole intention to non- suit the plaintiff, a desperate attempt has been made by him to change his stands from time to time as per his convenience.
48. As discussed supra, now in view of the findings rendered on issue Nos.1 & 4 P.W.1 could prove that by virtue of Ex.P.1 she has acquired the schedule property and this fact is also not denied by D.W.2 who is none other than the brother of her husband. Moreover D.W.1 is estopped from questioning the legal right of P.W.1 over the schedule property. However the initial burden is cast on P.W.1 to prove the existence of jural relationship of landlord and tenant between her husband and D.W.1 by
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virtue of the said oral agreement and thereafter the attornment of tenancy in her favour by virtue of Ex.P.1 gift deed. However, DW1 has denied the existence of any oral agreement of lease between himself and the husband of PW1. Now it is to be seen in view of these rival contentions of the parties whether an oral rent agreement is permissible under law. Section 107 of the T.P. Act contemplates as to how lease has to be made. The said Section reads thus:-
"107. Leases how made- A lease of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument.
[All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.
[Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee] Provided that the State Government may from time to time, by notification in the Official Gazette, direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession]".
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49. Thus the above provision clearly indicates that even in the absence of any registered or written lease agreement, a lease can be created even by an oral agreement accompanied by delivery of possession. Thus there is no bar under the Act to enter into any oral lease agreement. Therefore the fact that the law permits the parties to enter into an oral lease agreement cannot be disputed. The first part of Section 107 contemplates that a lease of immoveable property from year to year or for any term exceeding one year reserving an yearly rent can be made only through a registered instrument.
50. Thus what is required to attract this provision is that where a lease is for an yearly rent it must be necessarily be through a registered instrument. However the second part of the provision permits the parties to enter into oral agreement with respect to all other leases. The case of P.W.1 squarely falls under the second part of Section 107 since it is her case that the lease between her husband and D.W.1 was oral and it is also not in dispute that the possession of the schedule premises has already been delivered to D.W.1 even prior to the said oral lease agreement. Under such circumstances the exhaustive argument canvassed by the defence counsel that in the absence of any written lease agreement the claim of P.W.1 is untenable, cannot be sustained.
51. It is further to be noted that neither DW2 nor his other brothers have challenged either Ex.P1 gift deed in
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favour of PW1 or Ex.P2 partition deed under which the suit property was allotted to the husband of PW1. Under such circumstances, it could squarely be held that both these registered deeds have been duly acted upon by all the parties concerned. Under such circumstances, even if it is assumed that there is no existence of such oral lease agreement between the parties, but still the very fact that DW1 was timely intimated about the transfer of ownership in favour of PW1 and his act of subsequent tendering of rent as per Ex.P12 itself are sufficient to hold that there has been what is called a statutory attornment of tenancy u/s 109 of the Act. My conception is supported by a decision of the Hon'able High Court reported in Silva Uddin v/s Nagaraju : ILR 2004 KAR 4782 wherein this aspect has been well settled as under:
(A)- T.P.Act Sec.109-K.R Act 1999-Secs.
3(e) and 46(1)-The T.P.Act Sec. 109-Right of transferee under-Held-In view of transfer of ownership, the transferee becomes the owner of the premises- The tenant cannot dispute the right of the transferee landlord to maintain an Eviction petition under the Rent Act or to claim rent---Attornment by the tenant is unnecessary to confer validity to the transfer of the lessor's rights-Sec. 109 protects payment of rent by the tenant to the transferor without notice of the transfer, as Sec. 109 creates a statutory attornment.
52. Therefore, in view of a statutory right conferred u/s 109 of the Act in favour of the subsequent purchaser or transferee of the property, even in the absence of any fresh
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lease between the tenant and the transferee, the right to maintain an eviction petition is conferred on the transferee/purchaser in view of the ratio laid down in the above cited decision. Therefore, now it is no longer open to DW1 to deny the right of PW1 either to maintain the present suit for eviction even in the absence of any written/fresh lease agreement in view of the protection given under the statute by way of statutory attornment. Hence, this issue will have to be answered in favour of the plaintiff in the affirmative.
53. Issue No.3 :- However, PW1 has stated that under the said oral lease agreement between her husband and DW1 the monthly rental was agreed to be Rs.33,000/-. Since according to her case, it was an oral agreement, the fixation of the said rental amount has to be proved by her with cogent oral as well as documentary evidence. She has relied on Ex.P12 which shows that the rental amount was being received from DW1 for the months of December 2013 and January 2014 at the rate of Rs.20,000/-. This fact is also not denied by DW1. Now according to PW1 the additional amount of Rs.13,000/- was paid by DW1 by way of cash. To prove that this amount was paid by way of cash, she has produced the passbook of her husband which is at Ex.P11 wherein there is an entry dtd. 11.01.2014 for having received Rs.3,000/- from DW1. This fact is also not denied by DW1 as could be borne out from his admission found in his cross examination in para 5.
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Though he has stated that the monthly rent was Rs.23,000/- and he paid extra amount of Rs.10,000/- at the instance of DW2, but to substantiate this contention no materials are placed before the court by DW1. Therefore, it is to be held that the monthly rental of the suit property is to be held as Rs.33,000/- as claimed by PW1. Hence, this issue is answered in favour of the plaintiff in the affirmative.
54. Issue No.5:- PW1 has alleged that DW1 has not paid rent of the suit property since February 2014 and hence, he is in arrears of rental amount to the tune of Rs.2,64,000/- as on September 2014 at the rate of Rs.33,000/- p.m. In view of the findings rendered on the preceding issue, now it is proved by PW1 that the rental was Rs.33,000/- p.m. Now the next material aspect which remains for consideration is whether PW1 could prove the default committed by DW1 in payment of the rental amount since February 2014 till September 2014.
55. It is material to note that DW1 himself has categorically admitted in his evidence that since February 2014 he has not tendered rent of the suit property. This material piece of his admission is found in his cross examination dtd.01.12.2018 on page No.11 in para 1 wherein he has clearly admitted that after payment of two months rent for the months of Dec. 2013 and January 2014, he has not paid rent for the remaining period to the plaintiff's husband. Even in his further cross-examination he has voluntarily stated that there may be arrears of rent
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to the tune of Rs.14,00,000/- though denied that the arrears is to the tune of Rs.20,00,000/-. Therefore, the default of DW1 in payment of rental amount since February 2014 till September 2014 is manifest from the evidence on record. Therefore, even this issue will have to be answered in favour of the plaintiff in the affirmative.
56. Issue No.6 :- PW1 has also sought for possession of the schedule premises for her bonafide use and occupation. It is now proved that the suit property has been now validly and legally transferred in favour of PW1 by virtue of Ex.P1 gift deed. No doubt, the defendant has been in continuous possession of the suit property since last more than 40 years since the time of his grand-father, but now the need urged by PW1 of seeking possession of the suit property cannot be denied by him for the reason that despite knowing the fact that she has become lawful owner of the schedule premises since 2014, has withheld the payment of rental amount to her. Thus, there has been certainly huge monetary loss being caused to her by the acts of the defendant. Under such circumstances she is certainly entitled to seek the recovery of possession of the schedule premises claiming bonafides. Hence, even this issue will have to be answered in her favour in the affirmative.
57. Issue No.7 :- DW1 has contended that on 01.12.2009 he entered into lease agreement with DW2 as per Ex.D40 for a period of ten years and paid
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Rs.27,00,000/- as advance to DW2. Though PW1 has disputed this document, but it is not in dispute that she acquired right over the suit property only after Ex.P1 gift deed and even her husband got right over the said property by virtue of Ex.P2 in the year 2005. It is also not her claim that even prior to Ex.P2, her husband along with his brothers, jointly owned the suit property. The fact that originally DW2 was collecting rental of the suit property from DW1 in the capacity as an adopted son of Munilakshmamma is also not specifically denied by her. Even otherwise, in her cross examination PW1 has not specifically denied the execution of Ex.D40 on 01.12.2009 between DW1 and DW2 although she has pleaded ignorance about the same.
58. On perusal of Ex.D.40 it is shown that the present defendant and D.W.2 entered into lease agreement in the year 2009 with the terms and conditions that the monthly rental would be Rs.20,000/- and the deed also recites about payment of Rs.20,00,000/- by the present D.W.1 by way of cheques and the receipt attached to it on the very same day also shows the receipt of Rs.7,00,000/-by way of cash by D.W.2 from D.W.1 towards security deposit amount. However the learned counsel for plaintiff vehemently argued that this lease deed cannot be relied on since there cannot be any agreement between the lessor and lessee for payment of security deposit amount of such a huge sum of Rs.27,00,000/-.
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59. It is relevant to note that admittedly neither P.W.1 nor her husband are parties to Ex.D.40. Furthermore till this date they have also not questioned the said lease deed nor the brothers of D.W.2 have raised any objection for D.W.2 entering into this lease agreement with D.W.1 by receiving this amount towards security deposit pertaining to schedule property. Therefore it is an inter-se agreement between D.W.1 and D.W.2. It is further relevant to note that as stated supra P.W.1 has merely pleaded ignorance about these aspects in her cross-examination in para-8 which reads thus:-
"It is true to suggest that, T.K. Ramesh had received advance amount of Rs.20 Lakh from the defendant through cheque but I came to know this fact during the pendency of suit. I do not know whether T.K. Ramesh had received additional amount of Rs.7 lakh in cash from the defendant. I do not know whether T.K. Ramesh had withdrawn the cheque of Rs.4 lakh and Rs.1 lakh in the name of T.K. Yashwanth Kumar".
The above statement of P.W.1 would clearly indicate that at an undisputed point of time D.W.1 & D.W.2 entered into this lease agreement whereby D.W.2 has received the said amount towards the security deposit for letting out the schedule premises to him.
60. The learned counsel for the plaintiff also argued that when already the schedule premises was allotted to the husband of PW1 as on the date of execution of
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Ex.D40, DW2 could not have entered into such lease agreement with DW1 and hence, it is an invalid deed. This line of argument cannot be sustained for the reason that it is an equally settled law that a landlord is not necessarily the property owner. Sec. 105 of the T.P Act defines as to who is a 'lessor' and the definition merely says that the 'transferor' is called the 'lessor'. Therefore, merely because as on the date of execution of Ex.D40, the schedule property was already acquired by the husband of PW1, that itself will not invalidate Ex.D40, because by their own conduct and in-action all the brothers of DW2 including the husband of PW1 had permitted DW2 to enter into this lease agreement.
61. It is further significant to note that D.W.2 himself has unequivocally admitted that on 01.12.2009 Ex.D.40 was executed by him in favour of D.W.1. It is further clearly admitted by him that the contents of this lease agreement are true and even he has admitted for having received advance amount of Rs.27,00,000/- under Ex.D.40 from D.W.1. This material piece of admission of D.W.2 is found in his evidence dated 25.06.2019 in para- 5 which reads thus:-
"All contents mentioned in lease deed i.e., Ex.D.40 are true and correct. It is true to suggest that in lease agreement a mention has been made regarding payment of Rs.7 lakhs in cash and it is correct statement. It is true to suggest that I received rent in respect of suit property till 05.12.2013 as
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per Ex.D.34. It is true to suggest that I received total advance amount of Rs.27,00,000/- from the defendant under lease agreement".
The above categorical admission of D.W.2 clearly establishes the fact that he had received the said amount from D.W1 under Ex.D.40 and he being the proper person to throw light on this aspect, it is not open to P.W.1 to deny the said fact.
62. It is further pertinent to note that even in O.S.No.1056/2015 the present P.W.1 who was examined as D.W.1 in that case has also not denied the fact that D.W.2 has received Rs.27,00,000/- from the present D.W.1 towards security deposit amount. Therefore considering the available evidence on record and in the absence of any such specific denial by P.W.1 with regard to execution of Ex.D.40 and the receipt of amount of Rs.27,00,000/- by D.W.2 from D.W.1, it is to be held that D.W.1 could prove this execution of Ex.D.4 in the year 2009 and his payment of the said sum to D.W.2. Hence this issue is answered in his favour in the affirmative.
63. Issue No.8:- However D.W.1 has alleged that the present P.W.1 and her husband by colluding with each other, got created some documents with an intention to grab the huge advance amount of Rs.27,00,000/- paid by him to D.W.2 and thereby got issued the legal notice dated 17.09.2014 through P.W.1. How far this allegation
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of D.W.1 could be sustained in the given facts and circumstances of the case, is the material aspect which requires consideration. It is material to note that as discussed supra admittedly neither P.W.1 nor her husband were parties to Ex.D.40 lease agreement. It is also not the defence of D.W.1 that he had paid the said sum of Rs.27,00,000/- to all the brothers of D.W.2 including the husband of P.W.1. On the contrary it is his specific stand that he had paid the said sum to D.W.2 towards security deposit amount of the suit schedule premises.
64. One more material aspect which is to be noted here is that D.W.1 has also admitted in his cross- examination in para-2 that he has not initiated any criminal action against the husband of P.W.1 for his refusal of receipt of Rs.27,00,000/- and not returning it to D.W.1. It is pertinent to note that there is no question of D.W.1 taking any action against the husband of P.W.1 in this regard for the simple reason that even as per his own claim he had paid the said amount not to the husband of P.W.1 but to his brother D.W.2. In his further cross- examination in page-7 once again D.W.1 has clearly admitted that after coming to know about the denial by D.W.2 regarding his receipt of the said amount D.W.1 did not file any police complaint against him nor has initiated any civil action for recovery of the said amount. Under such circumstances it is not open to D.W.1 in this case to
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allege that P.W.1 and her husband have got created any documents in order to grab this amount paid by him when he himself has not stated that he had paid the said sum either to P.W.1 or to her husband.
65. It is further relevant to note that except making a bald allegation that P.W.1 and her husband have created documents in order to grab his money, D.W.1 has not proved with any cogent materials either oral or documentary evidence as to how and under what circumstances they created documents and it has also not been substantiated which documents have been created by them in order to grab his money. The pleadings are totally silent with regard to these allegations. It is also not his contention that though he paid the said amount to D.W.2, but all the brothers including the husband of P.W.1 and even P.W.1 have utilized the said sum. Under such circumstances the defendant cannot make any such allegations against P.W.1 and her husband when they are not at all parties to either Ex.D.40 or to any such money transaction between D.W.1 & D.W.2. Therefore as rightly argued by the learned counsel for plaintiff, it is an untenable and bald allegation made by D.W1 without any basis. Consequently this issue will have to be answered against him in the negative.
66. Issue No.9:- The defendant has also contended that he has already filed O.S.No.1056/2015 against
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P.W.1 and others for the relief of permanent injunction. It is evident from the records that after filing of this suit by P.W.1 claiming recovery of possession of the schedule premises from D.W.1, he filed O.S.No.1056/2015 seeking the relief of permanent injunction against not only P.W.1 but also against her husband as well as D.W.2. Since the said suit is also pending consideration before this court which is being simultaneously taken up along with this suit, this issue needs no further consideration. Hence the same is answered accordingly in the affirmative.
67. Issue No.10:- The defendant has also taken up a contention to non-suit the plaintiff on the ground that she has no cause of action to file the present suit. It is relevant to note that the suit is one for eviction of D.W.1 from the schedule premises along with recovery of arrears of rental amount and damages. In para-24 of his written statement D.W.1 has contended that the plaintiff has no cause of action to file the present suit since it is a premature suit as the lease period covered under Ex.D.40 has not been expired as on the date of filing of this suit. He has also questioned the legality of the notice of termination of tenancy.
68. No doubt as per Ex.D.40 the schedule premises was shown to have been leased out to D.W.1 for a period of 10 years from 01.12.2009 and admittedly the 10 years period would be completing by 01.12.2019 and the
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present suit has been brought by P.W.1 in the year 2014, but whether Ex.D.40 would bind the present plaintiff, is the material issue which requires consideration. As discussed supra, she was not a party to Ex.D.40 nor her husband was made as party to the said lease agreement. On the contrary it was entered into between D.W.1 and D.W.2 though as on that date the schedule premises was already allotted to him under Ex.P2 partition deed.
69. From the evidence on record, now it is sufficiently proved by PW1 that by virtue of Ex.P1 gift deed she has acquired legal right over the suit property. It is also now proved from the evidence on record that there has been a statutory attornment of tenancy in her favour. Under such circumstances, when DW1 had clearly admitted about the transfer of ownership of suit property in favour of PW1, he is under an obligation to consider the status of PW1 as landlady of the leased premises. However, he has denied the same and clandestinely refused to pay future rental amount to her which has led her to issue legal notice as per Ex.P3 terminating his tenancy. Therefore, it cannot be said that she has come up with the present suit without any cause of action.
70. DW1 has also made one more futile attempt to non-suit the plaintiff by contending that since the suit property is being used as a commercial premises, the
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notice of termination of tenancy issued u/s 106 of the Act is bad under law. The learned defence counsel has vehemently urged that PW1 herself has admitted in her cross examination that DW1 is running a business in gold and silver refinery in the suit property and therefore, when admittedly it is used for commercial purpose, the provisions of the T.P Act are not applicable. To fortify his arguments, he has also sought to rely on a decision reported in Rupeswari Debi v/s M/S Lokenath Hosiery Mill in AIR 1962 Calcutta 608 wherein it is held that where the lessee runs a hosiery factory in the premises the mere fact that one of the rooms is being occupied by one of his officers for residence would not make the purpose of the tenancy a residential purpose or a mixed purpose i.e., both manufacturing and residential purpose and it would still be a manufacturing purpose. It is further held that though the original purpose may not be a manufacturing purpose, if the premises are required and used for manufacturing purposes to the knowledge of the landlord or the lessor six month's notice would be necessary.
71. With due regards to the proposition of law laid down in the above cited decision, it cannot be said that the same could be extended to the present case for the simple reason that the lessee in that case had used the premises for running a hosiery factory for manufacturing purpose which is not the circumstance in the instant case since DW1 herein is admittedly said to be running
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business in the gold and silver refinery work which cannot be said to be a manufacturing purpose within the meaning of Sec.106 of the Act. Sec.106 of the Act reads thus:
106. Duration of certain leases in absence of written contract or local usage.--
In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice.
72. Thus, in order to attract the above provision of law to prove an yearly lease terminable by six months' notice, it must be proved that the premises must have been used for agricultural or manufacturing purposes. The term 'manufacturing purpose' has not been defined under the Act. The expression "manufacturing purposes"
has not been defined in the T.P. Act. It is, therefore to be construed in its popular sense. In a manufacturing process ,the process of production must involve labour or machinery. The end product must be a commercially distinct or different entity having distinctive name, character and use. The Hon'able Supreme Court in South
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Bihar Sugar M ills. Ltd., etc. v/s Union of India and Ors., in AIR 1968 SC 922, held that the word "manufacture"
implies a change, but every change in the raw material is not manufacture. There must be such transformation that a new and different article must emerge having a distinctive name, character or use.
73. Further, The Hon'ble Supreme Court in a decision reported in Dy. Commissioner of Sales Tax (Law),Board of Revenue (Taxes) v. Coco Fibres, in (1992) Supp 1 SCC 290, has observed that--the word "manufacture" has been defined as "the process or operation of making goods or any material produced by hand, by machinery or by other agency; anything made from the raw materials by the hand, by machinery, or by art; the production of articles for use from raw or prepared materials by giving such materials new forms, qualities, properties or combinations, whether by hand labour or machine". In the context of General Sales Tax Act, it was held that by process of manufacture something is produced and brought into existence which is different from that, out of which it is made in the sense that the things produced is by itself a commercial commodity capable of being sold or supplied. The material from which the thing or product is manufactured may necessarily lose its identity or may become transformed into the basic or essential properties.
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74. Thus, it is now for DW1 in this case to prove that the business run by him in the schedule premises falls within the meaning of "manufacture" as contemplated under Sec. 106 of the Act. In other words, the burden is on him to show that the said refinery work is a manufacturing work so as to attract the provision. Not a single scrap of paper is produced by him to prove that he is running any factory or manufacturing unit in the suit property. Therefore, it cannot be said that the suit property is being leased out to him for any such manufacturing purpose.
75. A gold or silver refinery is the place where gold or silver is separated from other metals or residues. In other words, it is where it gets refined. To 'refine' is to remove impurity or to reduce a material to pure state as per the dictionary meaning. Therefore, in the instant case it cannot be accepted that the business refinery work run by DW1 in the schedule premises falls under the category of 'manufacture' so as to term this lease as a yearly lease. Therefore, the contention raised by DW1 in this regard that the notice of termination is bad in law, cannot be sustained. Hence, even this issue needs to be answered against him in the negative.
76. Issue No.11 :- As regards the claim of damages The plaintiff has also sought for damages from the defendant at the rate of Rs.50,000/- per month for his unauthorized occupation over the schedule premises
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even after termination of his tenancy. However, the plaintiff has not produced any materials before the court to prove that the schedule premises would rental amount to the tune of Rs.50,000/- p.m. No rent deeds of any adjoining shop premises are also produced nor the evidence of any independent witnesses of the vicinity is adduced before the court. Therefore, in the absence of any supporting evidence in this regard, this claim of the plaintiff cannot be accepted.
77. However, this proceeding being one for possession of the suit property from the tenant, where the landlord is also entitled to claim damages for the subsequent unauthorized occupation of the tenant over the premises even after termination of tenancy, this issue could be adjudicated and decided in the final decree proceeding.
78. From the evidence on record, it is now proved that the defendant has deliberately squatted over the schedule property knowing well that the plaintiff is entitled to recover the possession of the suit property from him. The main intention of DW1 in holding over the suit premises is to recover the said amount of Rs.27,00,000/- payable to him by DW2 to which the present plaintiff is no way concerned. If at all DW1 seeks for recovery of the said sum from DW2, he has the remedy elsewhere by way of initiating separate proceeding for which the present PW1 cannot be targeted. Despite knowing this
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fact, Instead of complying with the demand made in the quit notice, he has made the plaintiff knock the doors of this court to seek the relief by incurring monetary expenditure in the form of payment of court fee and litigation expenses. Hence, the suit deserves to be decreed with cost. In the result, the court hereby proceeds to pass the following:
ORDER The suit filed by the plaintiff against the defendant for recovery of possession of the suit schedule property along with arrears of rental is hereby decreed with cost.
The defendant is directed to vacate and hand over vacant possession of the schedule property to the plaintiff within two months from the date of this order and on his failure to comply with the same, the plaintiff is entitled to recover possession of the schedule property with due process of law.
The defendant is also held liable to pay the arrears of rental pertaining to the suit property amounting to Rs. 2,64,000/-(Rupees two lakhs sixty-four thousand only) from February 2014 till 17.09.2014.
The claim of damages sought for by the plaintiff shall be adjudicated and decided in the Final decree proceeding.
Draw preliminary decree accordingly."
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6. Upon re-appreciation and re-evaluation of the entire material on record, I am of the considered opinion that the impugned judgment and decree passed by the trial court does not suffer from any illegality or infirmity nor can the same be said to be perverse or capricious or contrary to the material on record, so as to warrant interference by this Court in the present appeal.
7. In the result, I pass the following:
ORDER
(i) The appeal is hereby dismissed.
(ii) The impugned judgment and decree dated 05.01.2022 passed in O.S.No.8214/2014 by the X Addl. City Civil & Sessions Judge, Bengaluru City, is hereby confirmed.
(iii) However, appellant is granted time up to 30.04.2023 from today to quit, vacate and deliver vacant possession of the suit schedule premises to the respondent, subject to the following conditions:
(a) The appellant shall pay all arrears of rent as directed by the trial court and
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continue to pay the rents as and when they fall due to the respondent till they deliver the possession of the suit schedule premises to the respondent.
(b) The appellant shall not sub-let / under- let / part with possession of the suit schedule premises to anyone.
(c) The appellant - defendant shall
voluntarily vacate and deliver vacant
possession of the suit schedule premises to the respondent - landlord on or before 30.04.2023 as stated supra, without driving her to execution proceedings.
Sd/-
JUDGE SV/SRL.