Bangalore District Court
M/S.Sheriff & Bhatia Associates vs Sri.Mohammed Ebrahim on 12 September, 2017
IN THE COURT OF THE V ADDL. CITY CIVIL JUDGE,
AT BANGALORE CITY.
(CCH-13)
DATED THIS THE 12th DAY OF SEPTEMBER, 2017
PRESENT
Smt.Nagaveni, B.A., LL.B.
V ADDL.CITY CIVIL & SESSIONS JUDGE
BANGALORE
O.S.NO.8152/2011
PLAINTIFF: M/s.Sheriff & Bhatia Associates
Having its office at No.4406/7/8,
High Point-IV, 45, Palace road,
Bangalore-560 001.
Represented by its Associate
Sri.M.M.Bhatia
Aged 74 years,
(By Sri.M.S.Narayan, Advocate)
/VS/
DEFENDANT: Sri.Mohammed Ebrahim
Father's name not known to
plaintiff
"S.B.Towers",
No.88/4, M.G.Road,
Bangalore-560 001.
(By Sri.S.R.M, Advocate)
Date of Institution of the 18-11-2011
suit
Nature of the suit (suit on Ejectment & possession
pronote, : suit for declaration
and possession ,suit for
injunction, etc.)
Date of Commencement of 07-10-2015
recording of evidence
Date on which judgment was 12-09-2017
Pronounced
2 O.S.No.8152/2011
Duration Years Months Days
05 09 25
( NAGAVENI )
V ADDL.CITY CIVIL JUDGE
BANGALORE
*****
JUDGMENT
The plaintiff has filed the suit against the defendant seeking declaration relief declaring that the defendant is a trespasser and direct him to vacate and handover vacant possession of the property by an order of ejectment and such other reliefs. .2. The brief facts of the case, are as under:
The plaintiff had acquired leasehold rights in respect of the immoveable property bearing No.88, M.G.Road, Bangalore-560 00 and No.13/A, Church street, Bangalore from Smt.V.A.Jayashree and Sri.V.A Pradeep Kumar, legal heirs of late Sri.Anniyappa who are the member and kartha of Hindu Undivided Family of late Sri.V.Anniyappa, Proprietor, M/s.V.Anniyappa 3 O.S.No.8152/2011 and Co., so as to enable the plaintiff to construct and develop a commercial complex and erect building thereon. The plaintiff had secured lease hold rights for a period of 42 years with effect from 03/05/1979 subject to payment of rents stipulated in the registered lease deed dated 12/11/1979 registered as document No.2339/79-80 in the office of Sub-Registrar. Subsequent to acquiring lease hold rights, plaintiffs have put up construction of a commercial complex over the property bearing No.88, M.G.Road, Bangalore comprising of basement, mezzanine and six upper floors and the said building is names as "S.B.Towers". The entire building so constructed has been assessed to tax and have been assigned with Sub Katha no.Unitwise and certifying the katha in favour of the plaintiff as per the special notice issued by the Bruhath Bangalore Mahanagar Palike dated 16/05/1990. The Eastern portion of the property in the basement floor building approximate measuring 4 O.S.No.8152/2011 200 feet being a non-residential unit is allotted with katha No.88/4, M.G.Road, Bangalore Division No.61 certifying the plaintiff to be the khatedhar. The defendant has illegally trespassed and has been in occupation of the schedule property and the defendant has no right, title and interest in the schedule property and the defendant has been possessing the same illegally. The plaintiff approached the defendant number of times with request to vacate and handover the vacant possession, to which the defendant kept on requesting the plaintiff not to initiate any legal action and that defendant would vacate and handover the vacant possession. Despite the promise so made by the plaintiff, the defendant has failed and neglected to vacate. Further contends that plaintiff approached the jurisdictional police to take criminal action against the defendant, to which the police informed that the matter is civil in nature and directed the plaintiff to approach civil court. Then he has caused legal notice 5 O.S.No.8152/2011 dated 15/4/2011 calling upon the defendant to quit and deliver the vacant possession of the schedule property within 15 days from the date of receipt of this notice failing which the he will be left with no alternative but to initiate appropriate legal action against the defendant for recovery of damages for the unauthorized use and occupation of the schedule property as also to recover the past damages and the present damages at the rate of Rs.5,000/- per day and sue the defendant for recovery of possession of the plaint schedule property for unlawful occupation thereof. Further contends that defendant's counsel received the legal notice and failed to comply with the requirement of the notice. However, gave an evasive reply on 21/04/2011 through his counsel stating that defendant has not trespassed and never promised to vacate, but admitted that he is in the premises not in a capacity as trespasser but in a capacity of one who is looking after the business, one who is running the 6 O.S.No.8152/2011 business to whom the business in the shop belongs, that is the reason on receipt of notice from Bruhath Bangalore Mahanagara Palike, the same was forwarded to the plaintiff. The defendant claim that he is sitting in the schedule premises to carry on the business under the direction of rightful owner of the business, he has no other interest and that the notice issued to him was to the wrong person describing him as a trespasser and without ascertaining as to whom the business belongs is opposed to cannons of law as the defendant has no right to handover the possession nor can plaintiff seek possession through a competent court of law. The plaintiff on receipt of reply notice dated 21/04/2011 caused a rejoinder dated 09/05/2011 making it clear that the reply caused was mischievous motive while asserting that the defendant is a trespasser. The plaintiff further called upon the defendant to disclose the name of the rightful owner of the business as alleged within one week from the date 7 O.S.No.8152/2011 of receipt of rejoinder, failing which the plaintiff will have no option but to treat the defendant as a trespasser and initiate legal action as indicated in the legal notice dated 15/04/2011. The defendant acknowledged the receipt of the said rejoinder however till date has not bothered to comply with the demand made in the rejoinder. If at all the version of the defendant as stated in the reply notice were to be believed as true, nothing prevented the defendant from disclosing the name of the rightful owner as claimed in the reply so that the plaintiff would have taken such steps to proceed against him accordance with law. The defendant is deliberately evading and protracting the matter while also denying to vacate the schedule premises, which possessed by him as a trespasser and as such the plaintiff is under law entitled to seek recovery of possession of the plaint schedule premises from the defendant in accordance with law as also recovery damages by way of mesne profit, since the 8 O.S.No.8152/2011 possession of the defendant is nothing short of a trespasser and hence the present suit for recovery of possession and damages to be determined by way of mesne profit from the date of filing the suit till the date of handing over possession. The cause of action for the suit arose on 15/04/2011 when the plaintiff called upon the defendant to quit and deliver vacant possession and on 21/04/2011 when the defendant caused reply and on 09/05/2011 when the plaintiff caused rejoinder and on subsequent dates when the defendant continue to possess the plaint schedule property as unauthorized occupant/trespasser within the territorial jurisdiction of this Court. Hence, constrained to file this suit.
.3. The defendant has made his appearance through his advocate and filed his written statement as under :
The entire averments are denied as false except the admitted facts. It is admitted that business is 9 O.S.No.8152/2011 carrying in the schedule shop as a worker in the shop. The other allegations are denied by the defendant. Further stated that he has not illegally trespassed and has been occupation of the schedule property without any right, title and interest as stated in the plaint. At no point of time the plaintiff has approached this defendant demanding to vacate and handover the vacant possession of the premises as mentioned in the plaint. It is true that rightly the police have refused to intervene in the matter as stated in the plaint is correct, since the matter is civil in nature. The defendant is there in premises not in a capacity of trespasser but in a capacity of one who is looking after the business, one who is running the business to whom the business in the shop belongs, that is the reason why on the receipt of the notice of Bruhath Bangalore Mahanagara Palike it is duly forwarded to the plaintiff. Apart from the defendant sitting in the shop to carry the business under the direction of the 10 O.S.No.8152/2011 rightful owner of the shop. The defendant is of no other interest. The suit filed by the plaintiff against a wrong person describing the defendant has a trespasser without ascertaining as to whom the business belongs is opposed to cannons of law, as the defendant has not right o handover the possession of the schedule property nor the plaintiff cannot seek possession through a wrong person. The defendant is under law incapable of discharging such acts legally. The defendant has already suitably replied to the legal notice issued by plaintiff and hence the question of issuing reply to rejoinder of the plaintiff does not arise, since the defendant is worker in the shop. The plaintiff has neither cause of action nor is not entitled for any relief. Hence, prayed to dismiss the suit with costs.
.4. On the basis of the above pleadings, my learned predecessor has framed the following issues : 11 O.S.No.8152/2011
1. Whether the quit notice dated 21/04/2011 is in accordance with law ?
2. Whether the plaintiff is entitled to get the vacant possession of the suit property ?
3. To what order or relief the plaintiff is entitled to ?
.5. In order to prove his case, the special power of attorney of the plaintiff himself examined as P.W-1 and got marked Ex.P.1 to Ex.P.15 and closed his side. The defendant himself examined as D.W-1 and got marked Ex.D.1 to Ex.D.4 and closed his side.
.6. I have heard arguments of both sides. .7. My findings on the above issues are as follows:
Issue No. 1: In the Affirmative Issue No. 2: In the Affirmative Issue No. 3: As per final order, for the following:
REASONS
8. Issue No.1 : P.W-1, Sunil Bhatia S/o M.M.Bhatia, the special power of attorney holder of the 12 O.S.No.8152/2011 plaintiff himself examined as P.W-1 and got marked Ex.P.1 to Ex.P.15. P.W-1 in his evidence affidavit, reiterated the plaint averments. To support his affidavit evidence, he has produced Ex.P.1, special power of attorney, Ex.P.2 is discharge summary, Ex.P.3 is the certified copy of the lease deed dated 12/11/1979, Ex.P.4 is notice dated 16/05/1990, Ex.P.5 is the copy of letter dated 18/03/2011, Ex.P.6 is notice dated 05/02/2011, Ex.P.7 is the office copy of the legal notice dated 15/04/2011, Ex.P.8 is the postal receipt, Ex.P.9 is rejoinder dated 09/05/2011, Ex.P.10 and Ex.P.11 are two postal receipts, Ex.P.12 and Ex.P.13 are two acknowledgements, Ex.P.14 is the copy of reply dated 29/08/2011 and Ex.P.15 is the reply notice dated 21/04/2011.
9. It is the specific case of the plaintiff that he had acquired lease hold rights in respect of immoveable property bearing No.88, M.G.Road, Bangalore and No.13/A, Church street, Bangalore 13 O.S.No.8152/2011 from Smt.V.A.Jayashree and Sri.V.A.Pradeep Kumar, the legal heirs of late Sri.V.Anniyappa. He had secured hold rights for a period of 42 years subject to payment of rents stipulated in the registered lease deed dated 12/11/1979. After acquiring lease hold rights, he had put up construction on a commercial complex over the property bearing No.88, M.G.road, Bangalore comprising of basement, mezzanine and six upper floor and the said building is named as 'S.B.Towers". The entire building constructed has been assessed to tax and have been assigned with Sub katha no. unitwise and certifying the khatha in favour of the plaintiff as per the special notice issued by Bruhath Bangalore Mahanagar Palike dated 16/05/1990. The Eastern portion of the property in the basement floor building approximate measuring 200 feet being a non-
residential unit is allotted with khatha No.88/4, M.G.Road, Bangalore Division No.61, certifying the plaintiff to be the khatedhar. In the said property, the 14 O.S.No.8152/2011 defendant has illegally trespassed and has been in occupation of the schedule property. Thereafter, the plaintiff approached the defendant number of times with request to vacate and handover the vacant possession, to which the defendant kept on requesting the plaintiff not to initiate any legal action and that the defendant would vacate and handover vacant possession. But he has not responded to the same. Thereafter, he sent legal notice on 15/04/2011 calling upon the defendant to quit and deliver the vacant possession within 15 days. But he gave an evasive reply on 21/04/2011. Then plaintiff had caused a rejoinder dated 09/05/2011.
10. Per contra, it is the case of the defendant that he is carrying on business in the schedule shop as a worker in the shop. He is sitting in the shop to carry the business under the direction of the rightful owner of the shop. He has no other interest and plaintiff has filed suit against the wrong person describing the 15 O.S.No.8152/2011 defendant as trespasser without ascertaining as to whom the business belongs is opposed to cannons of law, as the defendant has no right to handover the possession of the schedule property nor the plaintiff cannot seek possession through a wrong person. The defendant has already given suitable reply to the legal notice. To prove the said contention, the defendant himself examined as D.W-1 and got marked Ex.D.1 to Ex.D.4. D.W-1, Mohammed Ebrahim in his affidavit evidence, reiterated the written statement averments and also elaborately stated as to who is the owner of the suit schedule property. To support his affidavit evidence, he has produced Ex.D.1, Deed of Assignment dated 26/02/1985, Ex.D.2, Deed of Assignment dated 25/05/1989, Ex.D.3 is the Deed of Assignment dated 01/02/1991 and Ex.D.4 is the lease agreement dated 08/01/1993. The defendant counsel has cross- examined P.W-1 in length. In the cross-examination of P.W-1, the defendant counsel has taken a different 16 O.S.No.8152/2011 version by putting questions with respect to ownership of the defendant. But in his written statement, the defendant has not mentioned the details of the owner, but in the cross-examination of P.W-1, the defendant counsel suggested to P.W-1 with respect to ownership of the suit schedule property. Further, D.W-1 in his affidavit evidence has taken his contention in length. In the evidence of D.W-1, he has taken contention that schedule property is a portion of the property bearing No.88 at M.G.Road and No.13/A, Church street, Bangalore and schedule property was taken on lease of 42 years was assigned by M.M.Bhatia and Zia Ulla Shariff under a registered assignment deed dated 26/02/1985 in favour of M/s.Harjeet W/o N.Vyas for a consideration of Rs.40,000/-. The terms of assignment deed point out that the assignee could deal with the property assigned including the right to lease, sublease, let, sublet, assign or transfer the right under the assignment deed to anyone in one or more portions 17 O.S.No.8152/2011 and also permitting to carry on business in the said premises including putting up partitions thereon. The plaintiff has no subsisting interest in the schedule property to file the suit for ejectment. On 25/05/1989 Ms.Harjeet W/o N.Vyas assigned the interest she acquired through registered deed of assignment in favour of Mr.Manohar T Joukani for a consideration and put Manohar Joukani in possession of the schedule property. Mr.Manohar T.Joukani on 01/02/1991 assigned his interest in schedule property in favour of B.L.Dev and Mrs.Shakuntala Dev under a registered assignment deed assigning his interest in favour of the assignees after taking a valuable consideration of Rs.1,20,000/- where under clauses 5 and 6 of the said assignment deed, the assignees who are authorized were given to lease, sublease, sublet their interest in the schedule property and put the assignee in possession of the schedule property. On 08/01/1993, Mr.B.L.Dev and Mrs.Shakuntala Dev 18 O.S.No.8152/2011 entered into agreement with Mrs.Noor Banu and Mrs.Fameeda where under Mr.B.L.Dev and Mrs.Shakuntala Dev agreed to assign their right, title and interest acquired by them by virtue of the registered assignment deed dated 01/02/1991 in favour of Mrs.Noor Banu and Mrs.Fameeda for a consideration of Rs.1,50,000/- and received Rs.1,00,000/- through pay orders No.360722 and 360723 for Rs.50,000/- each dated 07/01/1993 drawn on State Bank of Hyderabad, Victoria Layout, Bangalore and the balance of Rs.50,000/- was paid by post dated cheque dated 25/03/1993 with certain conditions and put Mrs.Noor Banu and Mrs.Fameeda into possession of the schedule property on 08/01/1993 itself. Thus, Mrs.Noor Banu and Mrs.Fameeda were in possession of the schedule premises in part performance of the agreement dated 08/01/1993. In the said agreement stated that Mr.B.L.Dev and Mrs.Shakuntala Dev have delivered 19 O.S.No.8152/2011 the keys and actual physical and vacant possession of the schedule property in favour of Mrs.Noor Banu and Mrs.Fameeda. Thereafter, Mrs.Noor Banu has allowed Mrs.Fameeds to continue the business and to enjoy the property in part performance of the agreement. Thus, the entire suit schedule property has been in possession and enjoyment of Mrs.Fameeda in part performance of the agreement dated 08/01/1993. Mrs.Fameeda has a right to be in possession and carry on the business by virtue of the agreement dated 08/01/1993 which possession she acquired in part performance of the agreement which cannot be disturbed till the expiry of the original assignment deed under registered document dated 26/02/1985 executed by Mr.Zia Ula Shariff and Mr.M.M.Bhatia of M/s.Shariff and Bhatia Associates till expiry of the period. Fameeda is the wife of defendant. She is in lawful possession of the schedule property to protect which she can user her possession as a shield against 20 O.S.No.8152/2011 the plaintiff who has lost the right in the schedule premises by virtue of assignment deed dated 26/02/1985. The defendant is only doing sales man work under the guidance of his wife. P.W-1 has no locus standi to give evidence. Mr.Shariff is hail and healthy and has avoided to give evidence in order to avoid the assignment deed executed by him and Mr.Bhatia. M.M.Bhatia does not produce any documents which authorize him to file the suit by Mr.Zia Ulla Shariff.
11. The defendant has taken a different version in his written statement and affidavit evidence and also cross-examination of P.W-1. The defendant in his written statement has not narrated the details of his contention. But in the cross-examination of P.W-1, defendant counsel has put the questions with respect to execution of the deeds and also ownership. P.W-1 in his cross-examination deposed that plaintiff is the co-owner of concern and his father M.M.Bhatia is 21 O.S.No.8152/2011 managing the affairs of the concern. Business is to construct the commercial complex at M.G.Road for a lease period of 42 years. In the cross-examination, the defendant counsel put a question as to whether the Shariff has given authorization to give evidence. But P.W-1 answered that only his father has given authorization. Further in his cross-examination deposed that Zia Ulla Sheriff has given authorization to his father to give evidence. To support his contention, he has produced Ex.P.14, letter written by Zia Ulla Sheriff. P.W-1 is none other than the son of M.M.Bhatia. It is admitted in his cross-examination that as per Ex.P.3, plaintiffs have derived the right, title and interest in the suit property. P.W-1 in his cross-examination deposed that he is not aware that plaintiffs have no right over the schedule premises after the assignment deed dated 26/02/1985 and also deposed that he is not aware about Ms.Harjit assigned her interest in the schedule premises and other 22 O.S.No.8152/2011 property in favour of Manohar T.Joukani under the registered assisngment deed dated 25/05/1989 and also deposed that he is not aware of the assignment deed executed by Manohar T.Joukani in favour of B.L.Dev and Ms.Shakunthala Dev under registered assignment deed dated 01/02/1989. Further, deposed that he is not aware that only agreement executed by B.L.Dev and Shakuntala Dev in favour of Noor Banu and Ms.Fameeda on 08/01/1993 on receipt of Rs.1,50,000/- to carry on the business in the schedule premises. It is pertinent to note that defendant in his written statement has not taken contention that M.M.Bhatia has assigned lease hold rights in favour of Ms.Harjeet W/o N.Vyas under registered document dated 26/02/1985. Further, Ms.Harjeet assigned her interest in the schedule premises over property in favour of Manohar T.Joukani under the registered assignment deed dated 25/05/1989. Further, Manohar T.Joukani executed assignment deed in 23 O.S.No.8152/2011 favour of B.L.Dev and Ms.Shakuntala Dev under the registered assignment deed dated 01/02/1991. The said B.L.Dev and Shakuntala Dev executed agreement in favour of Noor Banu and Fameeda on 08/01/993 and received Rs.1,50,000/-. The defendant counsel put a question on above averments in the cross- examination of P.W-1. But the defendant in his written statement has taken specific contention that defendant is only working as Salesman under his owner of the schedule property. On perusal of Ex.P.1, it reveals that the special power of attorney executed by M.M.Bhatia S/o Motumal, associate of M/s.Sheriff & Bhatia Associates authorized by other associates Ziya ulla Sheriff to represent M/s.Sheriff & Bhatia Associates in O.S.No.8152/2011 and he appointed his second son Sunil Bhatia to contest the case. Ex.P.2 is the discharge summary of M.M.Bhatia issued by Mallya Hospital, in the final diagnosis it is stated as left basal ganglionic haematoma with klebsiella 24 O.S.No.8152/2011 pneumonia and old right thalamic bleed and left hemiparesis. Ex.P.3 is the true copy of the lease deed dated 12/11/1979 in between V.A.Jayashree W/o Late V.Anniyappa, V.A.Pradeep Kumar S/o late V.Anniyappa and Sri.Ziaulla Sheriff S/o H.Sheriff, M.M.Bhatia called as lessees and both are carrying on business in the name and style of M/s.Sheriff and Bhatia Associates. The term 'lessees' shall also mean and include their heirs, legal representatives, executors and administrators etc. At page No.3, it is mentioned that lessors hereby grant in favour of the lessees, or to any partnership concern or other entities formed by them with their family members only, the entire schedule property bearing No.88, M.G.Road, Bangalore and premises No.13/A, Church street, on lease for a period of 42 years. Ex.P.4 is a special notice copy under Rule 8 and 9 of schedule III Section 143 of Karnataka Municipal Corporation Act, 1976 issued by the Bruhath Bangalore Mahanagara Palike to 25 O.S.No.8152/2011 M/s.Sheriff and Bhatia Associates. Ex.P.5 is the letter written by Sales Manager of the shop in respect of property No.88/4, M.G.Road to Shariff & Bhatia. The property No.88/4 mentioned in the schedule property as khatha No.88/4. The contents of the letter is as under:
"The Bruhath Bangalore Mahanagara Palike Revenue Authorities served the notice of sub- section (3) under 11 of 108A K.M.C Act vide No.DA/KTR No.11504/10-11/MR-1150/10-11, dated 05/02/2011, which is pertaining to the property tax in the name of your Associates in respect of property No.88/4, M.G.Road. This notice received on 16/04/2011. The same is herewith forwarded to take further action.
12. Ex.P.6 is the notice copy issued by Bruhath Bangalore Mahanagara Palike dated 05/02/2011. Ex.P.7 is the legal notice copy dated 15/04/2011 issued by Ziaulla Sheriff and M.M.Bhatia representing M/s.Sheriff & Bhatia Associates to Mohammed Ebrahim i.e., defendant. In the said notice, reiterated 26 O.S.No.8152/2011 the plaint averments and also description of the suit schedule property. In the said notice plaintiffs have also taken contention that defendant has illegally trespassed and have been in occupation of the suit schedule property. After approaching the defendant several times, he has not co-operated and not vacated and handedover the vacant possession and he prayed to quit and deliver vacant possession of the schedule property to the plaintiffs within 15 days from the date of receipt of the notice. Ex.P.8 is the postal receipt, Ex.P.9 is the rejoinder to the reply notice dated 21/04/2011 of defendant. In the said rejoinder also, the plaintiffs have called upon the defendant to disclose the name of defendants' rightful owner of the business. Ex.P.10 and Ex.P.11 are the postal receipts. Ex.P.12 and Ex.P.13 are the postal acknowledgements. Ex.P.14 is the letter written by Ziaulla Sheriff dated 29/08/2011 stating that he has authorized and empowered Sri.M.M.Bhatia S/o Motumal Bhatia, one 27 O.S.No.8152/2011 of his associate to cause legal proceedings to Mohammed Ebrahim for ejectment of the premises from the property bearing No.88/4, M.G.Road, Bangalore representing 200 sq.ft. super built up area in the basement floor. The said M.M.bhatia is duly authorized to cause legal proceedings on his behalf to institute civil suit before the competent Court of law and he is empowered to sign all such pleadings, vakalathnama, applications swear to affidavit, depose, withdraw, compromise, file appeal and engage advocate and fix remuneration in his name on his behalf as though he has instituted the suit alongwith him. Ex.P.15 is the reply notice issued by the defendant to the plaintiff. On perusal of reply notice, it reveals that entire notice averments dated 15/04/2011 denied by the defendant and stated that defendant is in the premises not in a capacity of trespasser, but in a capacity of one who is looking after the business, one who is running the business to whom the business in 28 O.S.No.8152/2011 the shop belongs, that is the reason why on the receipt of the notice of Bruhath Bangalore Mahanagara Palike, it was duly forwarded to the plaintiff. Apart from the defendant sitting in the shop to carry on the business under the direction of the rightful owner of the business and he has no other interest and the said notice issued to wrong person describing the defendant as trespasser without ascertaining as to whom the business belongs is opposed to cannons of law and defendant has no right to handover the possession of the schedule property nor the plaintiff cannot seek possession through a competent court of law as the defendant is incapable of discharging any such acts legally. But in the said notice also, defendant has not disclosed his shop/business owner. It is pertinent to note that defendant in his written statement not disclosed his business/shop owner of the suit schedule property. He has adopted the same reply notice contention in his written statement. But the 29 O.S.No.8152/2011 defendant has taken his defence in the cross- examination of P.W-1 through his counsel. According to defendant, his wife Fameeda is the owner of the shop premises. On perusal of documents available on record produced by the defendant, it shows that Ex.D.1 is the assignment deed dated 26/02/1985 and it reveals that on 26/02/1985 Ziaulla Sheriff and M.M.Bhatia of M/s.Sheriff & Bhatia Associates, Assignors assigned Mrs.Harjeet W/o N.Vyas, their lease hold rights in the 'B' schedule property for a period of 37 years till 11/11/2021. The description of 'B' schedule in the deed is as follows :
"Basement portion of the property bearing No.88, Mahatma Gandhi road, and No.88/1, Mahatma Gandhi road, forming portion of schedule 'A' property facing Rest House road together with super structures, buildings and other constructions thereon with fixtures and fittings thereto comprising of area of 200 sq.ft. having an entrance from Rest House road as indicated in Red Outlines in the plan." 30 O.S.No.8152/2011
13. Ex.D.2 is the deed of assignment dated 25/05/1989. It discloses that Ms.Harjeet, the Assignor had executed the lease deed in favour of Mr.Manohar T.Joukani. The assignors have agreed to assign and the assignee has agreed to take over the lease hold rights of the assignors in respect of the portion of basement of the composite property known as "SB Towers" bearing No.88 and 88/1 situated in Mahatma Gandhi road, Bangalore for a consideration of Rs.90,000/-. Ex.D.3 is a registered assignment deed in between the Manohar T.Joukani and B.L.Dev and Shakuntala Dev. In the said deed, it was mentioned that immoveable property bearing Corporation No.88, M.G.Road and No.13/A, Church street, Bangalore was acquired by Harjeet W/o N.Vyas assigned her lease hold rights in respect of the said portion of the basement of the composite property described in the schedule in favour of assignor i.e., Manohar K.Joukani under the assignment deed. 31 O.S.No.8152/2011 Hence, the present assignors are entitled to the said property to assign his rights in the said property in favour of any persons and he has agreed to assign and assignee agreed to take over lease hold rights of the assignor in respect of the portion of the basement and composite property known as SB Towers bearing No.88 and 88/1, M.G.Road, Bangalore for a total lease hold consideration amount of Rs.1,20,000/-. Ex.D.4 is the unregistered lease agreement dated 08/01/1993 in between B.L.Dev, Shakuntala Dev and Noor Bano and Fahmida, aged 30 years, D/o Abdul Rahim Sait. It reveals that said B.L.Dev, Shakuntala Dev have acquired the lease hold rights in respect of portion of basement from M.G.Road to Ground floor in Rest house road known as S.B.Towers, bearing No.88, 88/1, M.G.Road, Bangalore, total carpet area being 200sq.ft. have agreed to assign their lease hold right, title and interest acquired by them in favour of assignee or nominee or nominees for total 32 O.S.No.8152/2011 consideration of Rs.1,50,000/- for a period upto the end of 11/05/2021. The defendant counsel vehemently argued that Fameeda w/o defendant is the owner of the shop of suit schedule property. The plaintiffs have filed the suit against a wrong person and defendant is working as sales man in the suit schedule property. But in the written statement, the defendant has not disclosed the owner's name in respect of the suit schedule property. In the reply notice also, defendant has not disclosed the name of the owner in respect of the suit schedule property. The defendants have taken their defence only in the cross- examination of P.W-1 by putting questions to the General Power of Attorney of the plaintiff. On perusal of the documents produced by the defendant, it is only pertaining to M.G.Road, ground floor in rest house road known as SB Towers bearing No.88, 88/1, M.G.Road, Bangalore. But in the suit schedule property it is mentioned that all that piece and parcel 33 O.S.No.8152/2011 of the premises being the Eastern portion of the property in the basement floor building approximately measuring 200 sq.ft. being a non-residential unit allotted with khatha No.88/4, M.G.Road, Bangalore Division No.61, bounded on East by Rest house crescent road, west by private property, North by M.G.Road and South by common corridor, lift, lobby of the building S.B.Towers. The defendant has not produced any materials with respect to Khatha No.88/4, M.G.Road, Bangalore, Division No.61. Further, the defendant has not produced any materials to show that suit schedule property and property mentioned in the lease agreement as per Ex.D.4 are one and the same. In Ex.D.4, it is mentioned only as No.88, 88/1, M.G.Road, Bangalore measuring 200 sq.ft. But the khatha number and division number not mentioned. D.W-1 in his cross-examination admitted that he has occupied property No.88/4. Further, admitted that plaintiffs are the owner of the 34 O.S.No.8152/2011 property No.88 and plaintiffs are holding the lease hold rights over the period of 42 years since 03/05/1979. Further, D.W-1 in his cross-examination deposed that he is working as salesman in property No.88/4. In re- examination, defendant has deposed that property No.88/4 and schedule property are one and the same. But defendant has not produced any materials to show that Fameeda had occupied the property No.88/4 in respect of the suit schedule property by holding lease hold rights from B.L.Dev and Shakuntala Dev. In Ex.D.4, it is clearly stated that lease hold rights in respect of the portion of the basement from M.G.Road to Ground floor in Rest house road known as S.B.Towers, bearing No.88, 88/1, M.G.Road, Bangalore, total carpet area being 200 sq.ft. Nowhere in Ex.D.4 it is mentioned as property No.88/4. Further, defendant counsel argued that General Power of Attorney holder has no right to lead evidence on behalf of plaintiffs and Sheriff has not given General 35 O.S.No.8152/2011 Power of Attorney to Sunil Bhatia s/o M.M.Bhatia. Ex.P.1 is the special power of attorney, it reveals that M.M.Bhatia of M/s.Sheriff & Bhatia Associates authorized by other associate Ziaulla Sheriff to represent M/s.Sheriff and Bhatia Associates. The plaintiff in the O.S.No.8152/2011 had appointed his son by name Sunil Bhatia to conduct the case on behalf of Sheriff and Bhatia Associates. Ex.P.14 written by Ziaulla Sheriff stated that he authorized and empowered M.M.Bhatia S/o Motumal Bhatia, one of his associate to cause legal proceedings to Mohammed Ebrahim for ejectement of premises from the property No.88/4, M.G.road, Bangalore. In this regard, he has duly authorized to cause legal proceedings on his behalf, initiate civil suit before the competent Court and he is empowered to sign all such pleadings. Hence, the special power of attorney holder has got power to conduct the case on behalf of Ziaulla Sheriff and M.M.Bhatia of M/s.Sheriff and Bhatia Associates 36 O.S.No.8152/2011 to file the suit against the present defendant in respect of property No.88/4. The defendant's counsel relied on the decision reported in ILR 2005 Kar 729 in the case of Janki Vashdeo Bhojwani and Another V/s Indusind Bank Ltd. and others. The above decision is not supporting the case of the defendant. Order III Rule 1 and 2 of Code of Civil Procedure empowers the holder of power of attorney to act on behalf of the principal. In this case, the P.W-1, Sunil Bhatia is none other than the son of M.M.Bhatia and Ziaulla Sheriff is also authorized and empowered to M.M.Bhatia to cause legal proceedings against the defendant for the ejectment of the premises from the property bearing No.88/4, M.G.Road, Bangalore. In the above decision also, the Hon'ble Supreme Court of India held that General Power of Attorney cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross- 37 O.S.No.8152/2011 examined. In this case, P.W-1 in his cross- examination deposed that plaintiff is co-ownership concern. His father M.M.Bhatia is managing the affairs of the concern. The business is to construct commercial complex at M.G.road for a lease period of 42 years. Further, admitted that there is no other business other than construction and lease of properties including the suit schedule property. Moreover, the General Power of Attorney holder is none other than the son of M.M.Bhatia i.e., plaintiff in this case. Further, he knows the facts of the case. For not knowing the registered document dated 26/02/1985 executed by Ziaulla Sheriff and M.M.Bhatia has assigned lease hold rights in favour of Harjeet W/o N.Vyas is not a ground to discard the evidence of P.W-1. The defendant for the first time taken as contention in the cross-examination of P.W-1 that Ziaulla Sheriff and M.M.Bhatia has assigned lease hold rights in favour of Ms.Harjeet W/o N.Vyas under the 38 O.S.No.8152/2011 registered document dated 26/02/1985. Further, taken contention that Ms.Harjeet assigned her interest in the plaint schedule premises in favour of Manohar T.Joukani under the registered assignment deed dated 25/05/1989 and Manohar T.Joukani had executed assignment deed in favour of B.L.Dev and Shakuntala Dev under a registered assignment deed dated 01/02/1991. Further, B.L.Dev and Shakuntala Dev executed agreement in favour of Noor Bano and Ms.Fameeda on 08/01/1993 on receipt of Rs.1,50,000/-. The above defence is not taken by the defendant in his written statement. They have taken their defence only in the cross-examination of P.W-1 and affidavit evidence of D.W-1. I have already stated that defendant has not produced any materials to show that B.L.Dev and Shakuntala Dev had executed a lease agreement in favour of Noor Bano and Fameeda on 08/01/1993 in respect of the suit schedule property. The suit schedule property No. is mentioned 39 O.S.No.8152/2011 as 88/4, but in lease agreement, property number is mentioned as 88/1. Ex.P.4 is the special notice under Rule 8 & 9 schedule III Section 143 of Karnataka Municipal Corporation Act, 1976 issued by Bruhath Bangalore Mahanagara Palike on 16/05/1990. The subject mentioned as assessment and allotment of sub-nos. on unitwise in respect of property as No.88/1, M.G.Road, Dvn.61, in favour of M/Sheriff and Bhatia Associates and in the reference is letter dated 15/05/1987 from M/s.Sheriff and Bhatia for allotment of unitwise sub.nos and for modification of assessment. In the said notice at para No.1, it is stated that ground floor building out of above property which is in occupation of M/s.Canara Bank, counted for the existing Municipal No.88/1, M.G.Road, Division No.61 and assessment is modified from the annual rental value of Rs.32,30,610/- with effect from 01/04/1982 on non-residential basis continuing the khatha in the name of M/s.Sheriff and Bhatia Associates as lessee. 40 O.S.No.8152/2011 At para No.4 in the notice it is stated that eastern portion of the property in basement floor building out of above property which is in occupation of M/s.Duliana, is allotted a sub No.88/4, M.G.Road, Bangalore Division No.61 and the assessment of the same is fixed on an annual rental value of Rs.6,000/- with effect from 01/04/1985, on non-residential basis continuing the khatha in the name of M/s.Sheriff and Bhatia Associates as lessee. According to defendant, as per Ex.D.4, i.e., unregistered lease deed executed on 08/01/993 in between B.L.Dev, Shakuntala Dev and Noor Bano and Fameeda in respect of the suit schedule property. But in Ex.D.4, property No. is mentioned as 88/1 and not mentioned property No.88/4. The defendant has not produced any materials in respect of the suit schedule property to show that as per the lease agreement in between B.L.Dev, Shakuntala Dev and Noor Bano and Fameeda, the wife of defendant occupying the suit 41 O.S.No.8152/2011 schedule property as a lease holder and she had acquired lease hold rights from B.L.Dev and Shakuntala Dev in respect of property No.88/4. On the other hand, plaintiff prove that plaintiff had acquired lease hold rights in respect of the immoveable properties alongwith Sheriff in respect of the immoveable property bearing No.88, M.G.road, Bangalore and No.13/A, Church street, Bangalore from V.A.Jayashree and V.A.Pradeep Kumar, the legal heirs of V.Anniyappa including the suit schedule property and they have secured lease hold rights for a period of 42 years as per Ex.P.3 and they have acquired lease hold rights for putting construction over the property bearing No.88, M.G.Road, Bangalore comprising basement, meazzanine and six upper floors and the defendant has illegally trespassed and has been in occupation of the schedule property. He has no right, title and interest over the schedule property. Inspite of several request, he failed to vacate the 42 O.S.No.8152/2011 schedule property. Hence, issued legal notice dated 15/04/2011 as per Ex.P.7. The materials produced by the plaintiff are supporting the case of the plaintiff. On the other hand, the defendant has failed to prove that he is working as salesman in the suit schedule property and his wife Fameeda has lease hold rights in respect of the suit schedule property. Further, the plaintiffs prove that he had issued quit notice dated 15/04/2011 in accordance with law. Accordingly, I answer issue No.1 in the Affirmative.
14. Issue No.2 : The plaintiff has proved that defendant has illegally trespassed the suit schedule property. Further, the plaintiff has sought for the relief of mesne profits in the prayer column. But at para No.9 has stated that he has sought for recovery of possession and for determination of damages by way of mesne profits from the date of filing of the suit. But there is no prayer of damages sought in the plaint averments. Hence, plaintiff is not entitled for damages 43 O.S.No.8152/2011 by way of mesne profits, because there is no prayer in the prayer column. On the aforesaid discussion on issue No.1, the plaintiff is entitled for vacant possession of the plaint schedule property from the defendant by an order of ejectment. Hence, I answer issue No.2 in the Affirmative.
15. Issue No.3 : In view of my answers to above issues, I pass the following :
ORDER The suit of the plaintiff is decreed with costs.
It is declared that defendant is a
trespasser in respect of suit schedule
property.
Further, defendant is hereby directed to vacate and handover the vacant possession of the plaint schedule property to the plaintiff within 3 months from the date of this order.
Draw decree accordingly.
(Dictated to the Judgment writer, transcribed and typed by her, corrected and then pronounced by me in open court on this the 12th day of September, 2017.).
( NAGAVENI ) V ADDL.CITY CIVIL JUDGE.
BANGALORE.
***** 44 O.S.No.8152/2011 ANNEXURE List of witnesses examined for the plaintiff :
P.W.1 Sunil Bhatia List of witnesses examined for the defendant :
D.W-1 Mohammed Ebrahim List of documents marked for the plaintiff :
Ex.P.1 Special power of attorney Ex.P.2 Discharge summary Ex.P.3 Certified copy of the lease deed dated 12/11/1979 Ex.P.4 Notice dated 16/05/1990 Ex.P.5 Copy of letter dated 18/03/2011 Ex.P.6 Notice dated 05/02/2011 Ex.P.7 Office copy of legal notice dated 15/04/2011 Ex.P.8 Postal receipt Ex.P.9 Rejoinder dated 09/05/2011 Ex.P.10 & 11 Two postal receipts Ex.P.12 & 13 Two acknowledgements Ex.P.14 Copy of reply dated 29/08/2011 Ex.P.15 Reply notice dated 21/04/2011
List of documents marked for the defendant :
Ex.D.1 Deed of Assignment dated 26/02/1985 Ex.D.2 Deed of Assignment dated 25/05/1989 Ex.D.3 Deed of Assignment dated 01/02/1991 Ex.D.4 Lease agreement dated 08/01/1993.
( NAGAVENI ) V ADDL.CITY CIVIL JUDGE BANGALORE **** 45 O.S.No.8152/2011