Bangalore District Court
Sri.H.S.Shivaramakrishnan vs R.Manoj on 29 July, 2016
IN THE COURT OF THE 42nd ADDL. CITY CIVIL & SESSIONS
JUDGE AT BENGALURU CITY (CCH.NO.43).
PRESENT: Sri.BAILUR SHANKAR RAMA,
B.Sc., M.A., LL.B.(Spl),
nd
42 ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.
Dated this the 29th day of July 2016.
O.S.No.2034/2015
Plaintiff:- Sri.H.S.Shivaramakrishnan,
Aged 76 years,
S/o.Hariharan,
New No.24, 2nd Cross,
Platform Road,
R.V.Shetty Layout,
Sheshadripuram,
Bengaluru- 560 020.
(By - Sri.S.Mahesh, Adv.)
v.
Defendant:- R.Manoj,
Major,
S/o.Late M.Rajashekar,
Old No.10, New No.27,
3rd Cross,
R.V.Shetty Layout,
Platform Road,
Sheshadripuram,
Bengaluru- 560 020.
( By - Sri.V.A.Mohanrangam, Adv.)
2 O.S.No.2034/2015
Date of institution of the suit : 03.03.2015
Nature of the suit : Ejectment Suit
Date of commencement of : 29.07.2015
Recording of the evidence
Date on which the Judgment : 29.07.2016
was pronounced
Total Duration : Years Months Days
01 04 26
(BAILUR SHANKAR RAMA)
nd
42 ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
JUDGMENT
This is a suit filed by the plaintiff against the defendant for recovery of possession of suit schedule property and to determine mesne profits.
2. The brief facts as averred in the plaint are that:-
The plaintiff is the absolute owner of the commercial property morefully mentioned in the suit schedule. The father of the plaintiff - Sri.A.Hariharan has leased the property to the father of the defendant - Sri.M.Rajashekar under Lease Deed dated 04.04.1979. In the present suit, 3 O.S.No.2034/2015 both plaintiff and defendant are the legal representatives of original owner and tenant, as such, they continued with the relationship of landlord and tenant in respect of the suit premises. Subsequent to the death of Sri.M.Rajashekar, the defendant had been paying monthly rent of Rs.15,000/- per month excluding electricity and water charges. After the death of Sri.A.Hariharan, being his legal heirs the plaintiff has inherited the schedule property and katha of the schedule property stands in the name of the plaintiff as owner. The tenancy is English monthly tenancy. The defendant is carrying on a business under the Name and Style - Sree Jayalakshmi Enterprises in the schedule premises. It is submitted that the defendant has never been prompt in paying monthly rentals and become chronic defaulter from October 2014 to till date and except making paltry excuses the defendant has not provided valid or legal reasons for not paying the monthly rents. Thus, the plaintiff is not interested in continuing the tenancy of the defendant. The plaintiff submits that on 08.01.2015, the plaintiff got issued legal notice as per statutory provisions prescribed under Section 106 of the Transfer of Property 4 O.S.No.2034/2015 Act, terminating the tenancy of the defendant. As there was some typographical error, a corrigendum was issued on 12.01.2015. The plaintiff intends to develop the suit property. Hence, eviction of the defendant has become essential. The plaintiff submits that after the service of notices, the defendant has sent an untenable reply on 05.02.2015, denying that he is a tenant under the plaintiff, thereby making his intention clear that he is not going to vacate the schedule premises. If the premises is let out to others now it would fetch atleast rent of Rs.30,000/- per month. Even after termination of tenancy, the defendant continued in possession, as such, he is liable to pay damages for unauthorized use and occupation of the schedule property from the date of suit till he quit and deliver the vacant possession of the suit property. The plaintiff reserves his right to file separate suit for recovery of arrears of rent. Hence, the suit.
3. After the service of suit summons, the defendant appeared before court through his advocate - Sri.V.A.Mohanrangam and filed the written statement. The defendant has denied all the averments and allegations 5 O.S.No.2034/2015 made by the plaintiff in the plaint. There is no jural relationship between the plaintiff and the defendant as landlord and tenant in respect of suit schedule property. The defendant has not paid any rent to the plaintiff, much less what is claimed of Rs.15,000/- per month. The plaint is without any cause of action. The tenancy as stated in the plaint is disputed. The defendant submits that the plaintiff is an utter stranger to the defendant, who is not a permanent resident of Bangalore, having his abode at Chennai. The plaintiff is not the legal representative of Sri.A.Hariharan as claimed in the plaint. However, he admits the receipt of legal notice issued by the plaintiff. He has denied the issue of corrigendum notice. He submits that he has given fitting reply to the notice. The suit is not maintainable under the provisions of the Transfer of Property Act and liable to be dismissed under Order 7 Rule 11 (a) and (d) of CPC. The claim of damages at the rate of Rs.30,000/- per month is unsustainable and it is a figment of imagination. The defendant submits that the ground rent originally started at Rs.100/- per month, the rent was enhanced from time to time and the rent as on today 6 O.S.No.2034/2015 payable by the defendant is Rs.2,500/- per month, but not as falsely stated at Rs.15,000/- per month by the plaintiff. This fact is to the knowledge of Smt.Rukmini and Sri.Srinivas in the matter of rent paid at Rs.2,500/- per month and are borne out from records as the documentary proof. Even super structure on the land is not properly described and the suit schedule property is non-existent, as such, suit itself is vexatious and liable to be dismissed.
4. Basing on the rival pleadings the following issues are framed:-
ISSUES
1. Whether the plaintiff proves that the defendant is the tenant in respect of the suit schedule property?
2. Whether the plaintiff is entitled for vacant possession of the suit property?
3. What order or decree?
5. The plaintiff got himself examined as PW-1 and got marked Ex.P1 to P9 and closed his side. The defendant has not led any evidence. The learned counsel for the defendant 7 O.S.No.2034/2015 by confronting the documents in the cross-examination of PW-1 got marked Ex.D1 to D6.
6. After the closure of the evidence, heard the arguments.
7. My answers to 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 & 2:-
For the sake of convenience these two issues are taken up together for discussion to avoid repetition of facts and evidence.
The material allegation made by PW-1 in his pleadings that suit schedule premises was leased to the father of the defendant by name Sri.M.Rajashekar by his father Sri.A.Hariharan, who was the owner of the suit schedule property. After the death of Sri.A.Hariharan, as a Kartha of the family the plaintiff has inherited the schedule property. 8 O.S.No.2034/2015 The tenant - Sri.M.Rajashekar also died. The defendant being his son has continued the relationship of landlord and tenant. He has deposed in his evidence that subsequent to the death of Sri.M.Rajashekar the defendant had been paying monthly rent of Rs.15,000/- per month excluding electricity and water charges. The tenancy month is English monthly tenancy and the defendant is carrying on business in the suit schedule premises under the name and style - Sree Jayalakshmi Enterprises. PW-1 has further deposed that from October 2014 till date the defendant has not paid the rentals and he has failed to provide valid and legal reasons for not paying the rent. Therefore, PW-1 has stated that he is not interested in continuing the tenancy of the defendant, that is the reason he got issued legal notice, terminating the tenancy of the defendant in respect of the schedule premises on 08.01.2015 through RPAD, the said notice was served on the defendant. He has further stated that as there is some mistake a typographical error a corrigendum notice was issued on 12.01.2015. The defendant has sent reply taking untenable plea, his intention was clear that he doesn't wish to vacate the 9 O.S.No.2034/2015 premises. As PW-1 intended to develop the suit property for his own use, that is the reason, filed the suit for eviction.
9. In the written statement filed by the defendant, he has denied the allegations made by the plaintiff and contended that there is no jural relationship between the plaintiff and the defendant of landlord and tenant. The defendant is the Proprietor of Sree Jayalakshmi Enterprises. At no point of time, he has paid rentals to the plaintiff. Therefore, he has no right to terminate the tenancy. As such, the legal notice issued under Section 106 of the Transfer of Property Act, is bad under law. The specific case of the defendant is that the plaintiff is not the owner, as such eviction suit filed against the defendant is not maintainable.
10. Therefore, as per the defence taken by the defendant in the written statement, he has denied the landlord and tenant relationship between the plaintiff and the defendant and rent is also denied. But on going through the entire pleadings, the defendant has not made out under whom he is a tenant and what is the rentals 10 O.S.No.2034/2015 payable by him in respect of suit premises. It is not his case that he is the owner of the suit schedule property. Mere denying the landlord and tenant relationship alone is not sufficient. He must specify that who was actually the owner the property according to him, from whom he had taken the premises on lease and what are all the conditions of lease and rentals payable. The written statement is vague with regard these aspects are concerned.
11. Very interestingly in written statement para No.1 to 4, his case is of total denial. But in para 6 of the written statement, he has stated that the ground rent originally started at Rs.100/- per month and rent was enhanced from time to time and rent as on today payable by the defendant is Rs.2,500/- per month, but not as falsely stated at Rs.15,000/- per month. He has made it clear in the said para that this fact is to the knowledge of Smt.Rukmini and Sri.Srinivas in the matter of rent paid at Rs.2,500/- and the above said facts are borne by the records as the documentary proof. He has further pleaded in the said para that even the super structure on the land is not properly described and the suit property is non existent, as such, the 11 O.S.No.2034/2015 suit is vexatious and also not in accordance to provisions of the Transfer of Property Act. Therefore, it is clear that originally suit site was taken from the owner for ground rent and from time to time, rent was enhanced. Smt.Rukmini and Sri.Srinivas according to the defendant, he has paid rentals to them and this fact was within the knowledge of them.
12. The defendant has confronted the unregistered Deed of Agreement executed by Smt.Jayalakshmiammal w/o.Sri.A.Hariharan in favour of (1) Sri.K.Purushotham s/o.Sri.V.Kuppuswamy Reddy and (2) Sri.M.Rajashekar s/o.Sri.Mruthyunjayan. The suit schedule property was leased for 10 years and lessees have agreed to pay ground rent at the rate of Rs.100/- per month for a period of first year and thereafter, at the rate of Rs.125/- per month. That means, it is compulsorily registrable document as lease was created for 10 years. Only for collateral purpose the said document is marked. But one thing can be gathered that father of present defendant was a lessee under mother of PW-1, is an admitted fact. Because this document is produced by the defendant and para No.6 of the written 12 O.S.No.2034/2015 statement reflects that site was taken on the basis of ground rent payable. It is the case of the defendant that his father has put up the structure on it and running the business. After the death of Smt.Jayalakshmiammal on 01.12.1976 the said property was devolved on her husband i.e., father of the plaintiff - Sri.A.Hariharan. The said Sri.A.Hariharan died on 19.04.1993.
13. In the cross-examination of PW-1, he has deposed that his father - Sri.A.Hariharan died leaving behind his legal heirs i.e., 4 sons and 4 daughters. PW.1 - Sri.H.S.Shivaramakrishnan, Sri.H.Natarajan, Sri.Sundareshan and Sri.Srinivasan and daughters - Smt.Rukmini and 3 others. It is his say that, his last brother - Sri.Srinivasan and his sister - Smt.Rukmini are staying at Bangalore. Even though PW-1 is a retired employee, residing at Chennai, but as a Kartha of the family after the death of his father, katha in respect of the suit schedule property was transferred in the name of PW-1. To evidence the same, he has produced Ex.P1 - Katha Certificate issued by the BBMP. Katha Extract shows that suit property is standing in the name of PW.1-Shivarama 13 O.S.No.2034/2015 Krishnan.H.S. Ex.P2 is the property tax paid receipt for year 2014-15. Ex.P8 is the Uttara Pathra dated 04.05.2000 shows that Property No.23, 24, 24/1 and 27 were transferred in the name of the plaintiff. That means, other co-owners have consented to enter the name of PW-1 in respect of the suit schedule property can be gathered. Ex.P9 - Certificate issued by the BBMP also evidence the same. Therefore, since the year 2000 katha of the property is standing in the name of PW-1 and he has paid tax to the BBMP, can very well be gathered.
14. The records shows that after the death of Smt.Jayalakshmiammal, on 04.04.1979 through father of the plaintiff - Sri.A.Hariharan the father of defendant - Sri.M.Rasjashiekar has continued the lease for 11 months, which shows that father of the defendant was the tenant under father of the plaintiff and he has been running the business by making payment of rentals to the owner - Sri.A.Hariharan, can very well be gathered. After the death of Sri.A.Hariharan, his legal heirs inherited the property as per the admissions in para 6 of the written statement, he has continued the tenancy by making payment of rentals 14 O.S.No.2034/2015 according to him to Smt.Rukmini and Sri.Srinivasa, one of the daughter and son of late Sri.A.Hariharan, who are residing at Bangalore. Which shows that father of the defendant was a tenant, after his death the present defendant has continued the lease by making payment of rentals to the legal heirs of Sri.A.Hariharan, can very well be gathered.
15. The learned counsel for the defendant has confronted to PW-1 the rent receipt shown, which is marked at Ex.D4, which was received by his sister Smt.Rukmini and Ex.D5 - tax paid receipt dated 09.07.1974. PW-1 admitted that originally suit property belong to his mother and after her death, katha was changed in the name of his father as her legal heir and father of the defendant had continued tenancy under Sri.A.Hariharan. Further conduct of the defendant shows that he has paid rentals to one of the co- owner i.e., sister of the plaintiff - Smt.Rukmini. What the plaintiff has stated that during 2000 he became owner of the property, which is backed up by the Katha Extract and he is justified in saying that with the consent of other co- owners as they given permission he has become owner of 15 O.S.No.2034/2015 the property. He has pleaded that as Kartha of the family consisting of 4 brothers and 4 sisters, he has filed the suit for eviction after issuing notice under Section 106 of the Transfer of Property Act, terminating the tenancy of the defendant. As could be seen from the copy of the notice dated 08.01.2015. The very fact stated in the notice are pleaded by him and deposed in his evidence. The typographical error found in the notice was cured by issuing corrigendum notice dated 12.01.2015. The defendant admits the service of notice - Ex.P3. The postal receipt and acknowledgement is produced at Ex.P5 and P6. The defendant has sent reply dated 05.02.2015 at Ex.P7. On perusal of the said reply, the defendant has not denied the other facts and allegations made in Ex.P3, but he has simply stated that at no point of time, there exist the jural relationship between the plaintiff and the defendant as landlord and tenant respectively and as such, there is no question of default in payment of rents as alleged. The defendant could have answered the allegations by setting forth his own defence and clarify who is his landlord and 16 O.S.No.2034/2015 under whom he was a tenant, what was the rental payable. Except the denial nothing is forth coming.
16. Therefore, it is clear from the documents itself that after the death of Sri.A.Hariharan, the plaintiff and other children of Sri.A.Hariharan, have succeeded to the property as they inherited and have become owners and possessors of the property and with the consent of other co- owners, katha of the property in BBMP was transferred in the name of PW-1, can very well be gathered. Another point worth to be appreciated is that, originally site was taken on lease by Sri.K.Purushotham and father of the defendant - Sri.M.Rajashekar from Smt.Jayalakshmiammal to start the firm - M/s. Jayalakshmi Enterprises. Ex.D6 is the letter addressed by Sri.K.Purushothama to Smt.Jayalakshmi Ammal, mother of PW-1 dated 01.11.1973 that premises was obtained in his personal name on behalf of firm M/s.Jayalakshmi Enterprises, w.e.f. 01.10.1973 he has retired from the above partnership, therefore the lessee will continue with M/s.Jayalakshmi Enterprises instead of his personal name. Therefore, after retirement of Sri.K.Purushotham it was informed to the owner, the father 17 O.S.No.2034/2015 of the defendant - Sri.M.Rajashekar continued as a tenant. As already observed, he was continued as a tenant under the husband of Smt.Jayalakshmiammal after her death. The said Sri.M.Rajashekar also died, obviously as the legal heir of Sri.M.Rajashekar i.e., present defendant, continued as a tenant under the legal heirs of Smt.Jayalakshmiammal and Sri.A.Hariharan.
17. In the cross-examination PW-1 admits that his sister - Smt.Rukmini and his brother - Sri.Srinivasan have received the rentals as they are residing in Bangalore. Therefore, contentions in para 6 of the written statement show that there is no justification for the defendant to contend that there is no landlord and tenant jural relationship between the plaintiff and the defendant. It is not necessary that all the co-owners of the property should file a suit for recovery of possession from the tenant. To seek possession from the tenant it is not necessary that only the absolute owner of the property alone is entitled to maintain a suit for eviction. The landlord who exercises his right to recover rent from the tenant can also file a suit and 18 O.S.No.2034/2015 anyone of the co-owners can also file a suit to evict the tenant.
18. The learned counsel for the defendant has relied on a decision reported ILR 2009 KAR 458, in the case of Jayamma v. The Assistant Revenue Officers and others, wherein it is held that, recording the name of owner / occupier of the immovable property, who are responsible to pay corporation taxes will be found in the Katha Extract. Though it doesn't confer right, title or interest in the immovable property, only for physical purpose to recover tax revenue records can be considered. Here, in the present case on hand, with the consent of other co-owners katha was transferred in the name of PW-1 and equally we can make out that he is one of the co-owners having the right to sue against the tenant for recovery of possession and for arrears of rentals or damages.
19. The other decision relied by the learned counsel for the defendant reported in 1975 (1) Kar.L.J. 4, wherein their lordships have held that, the subsistence of the tenancy is the foundation for an order under Section 44. 19 O.S.No.2034/2015 Where there is a serious dispute as to the subsistence of tenancy it will be more appropriate that such question should be decided in a suit and not in summary proceedings under Section 44 of the Karnataka Rent Control Act. It is also observed that, where relationship of landlord and tenant is denied, evidence is necessary to establish the relationship of landlord and tenant. Merely on the basis affidavits of the parties without recording evidence that question cannot be decided. Here, the plaintiff has issued notice terminating the tenancy as required under Section 106 of the Transfer of Property Act. It was a monthly tenancy and termination of tenancy at the end of tenancy month is perfectly in order and he has made it clear that he is son of former owner of the property - Sri.A.Hariharan and his mother - Smt.Jayalakshmiammal. As Kartha of the legal heirs of Sri.A.Hariharan he has filed the eviction suit and also issued legal notice. This question was tried by the court in this suit. PW-1 is subjected to cross-examination, but defendant has not chosen to enter into the witness box to substantiate his defence. Therefore, in a suit court can 20 O.S.No.2034/2015 certainly decide the allegation of denial of the landlord and tenant relationship raised by the defendant.
20. Other decision relied on by the learned counsel for the defendant reported in LAWS (APH)-2002-3-36 in the case of St.Mary's Educational Society v. Qutubuddin Ahmed, wherein their lordships of Andhrapradesh High Court have observed that under Section 49 of the Registration Act, doesn't say that an unregistered document which requires to be registered, shall not be received in evidence. The only bar is that, such a document cannot be received as evidence for any transaction affecting the property. As a matter of fact, the proviso to Section 49 clearly empowers the courts to admit any unregistered document as evidence of collateral transaction, not required to be registered. An unregistered lease deed is admissible to prove the nature and character of possession of the defendant and that Section 49 doesn't come in the way.
21. As regards the document i.e., unregistered Deed of Agreement marked at Ex.D1, for collateral purpose 21 O.S.No.2034/2015 learned counsel relied this decision. It shows the origin of tenancy that father of the defendant and one Sri.K.Purushotham have taken the land on lease from the original owner - Smt.Jayalakshmiammal, who is none else than mother of PW-1. Therefore, as regards the nature and character of possession of the defendant, said document can be looked into and it has come in the evidence that after the death of Smt.Jayalakshmiammal and on 01.11.1973 itself Sri.K.Purushotham had informed the Smt.Jayalakshmiammal of his retirement from the Partnership. As such, father of the defendant alone has continued as tenant. Further, evidence shows that Sri.M.Rajashekar has continued the lease under Sri.A.Hariharan. After his death, the present defendant continued possession by paying rentals to the legal heirs of Sri.A.Hariharan, can very well be gathered. Therefore, the relationship of landlord and tenant thus stands established.
22. The other decision relied by the learned counsel for the defendant AIR 1982 Karnataka 35, in the case Mahammad Iqbal Dastagirsab and others v.
Mohamadgous Lalamiya Sangolli and others, wherein 22 O.S.No.2034/2015 also the question was raised, disputing the existence of relationship between the parties as landlord and tenant and it is held that, that issue cannot be decided by the court as preliminary issue. As essentially it is an issue of fact and evidence is required to adduce to establish the existence of such relationship between the parties. In this case, the plaintiff has led evidence to prove his right to file suit for eviction as one of the co-owners and there is landlord and tenant relationship is existed till termination of tenancy under notice issued under Section 106 of the Transfer of Property Act.
23. Therefore, by appreciating the evidence brought on record, we can make out that PW-1 has proved the existence of landlord and tenant relationship between the plaintiff and the defendant and he has right sue the defendant for eviction. Therefore, the arguments canvassed by the learned counsel for the defendant that suit is not maintainable as there is no jural relationship of landlord and tenant between the plaintiff and the defendant, has no legs to stand before the court. The defendant cannot plead blow hot and blow cold under a single breath. The very 23 O.S.No.2034/2015 admission in para 6 of the written statement and also documents confronted and got marked in the cross- examination of PW-1 and suggestions made to the witness, manifestly makes it clear that PW-1 is one of the legal heirs of deceased owner and the defendant is the legal heir of deceased tenant and the existence of landlord and tenant relationship between the two is subsisted till the termination of tenancy under Ex.P3 and P4.
24. Again another point worth to appreciate is that, whether one of the co-owners can sue for eviction against the tenant, who is in occupation of the property. The learned counsel for the plaintiff has relied on a decision reported AIR 1976 SUPREME COURT 2335, in the case of Sriram Pasricha v. Jagannath and others, wherein also such question arose, the lordships have held that tenant in such a suit is estopped from questioning the title of the landlord under Section 116 of the Evidence Act. Under the general law in a suit between landlord and tenant, the question of title to the lease property is irrelevant and one of the co-sharers can maintain a suit for eviction against the 24 O.S.No.2034/2015 tenant and the landlord could terminate the tenancy and institute the suit for eviction.
25. The other decision relied by the learned counsel for the plaintiff reported in AIR 1990 Patna 26, in the case of Harbans Singh v. Smt.Tekamani Devi and others. In that case also the tenant under original owner in a suit filed by one of the legal heirs for eviction has raised the question denying the jural relationship of landlord and tenant between them. Their lordships have ruled that upon the death of original owner, all his children inherited the property, as parties constituted a joint family governed by Mithakshara School of Hindu Law. One of the legal heirs can file a suit for eviction and tenant is estopped from denying the relationship. Likewise, in this case also the present plaintiff is one of the legal heirs of deceased original owner - Smt.Jayalakshmiammal. After her death and death of her husband - Sri.A.Hariharan, the katha of the property transferred in the name of the plaintiff with the consent by others. Therefore, it is deemed that with the consent of other co-owners he has issued notice terminating the 25 O.S.No.2034/2015 tenancy under Section 106 of the Transfer of Property Act and he can maintain a suit for eviction.
26. The learned counsel for the plaintiff has also relied on a decision decided by the Hon'ble Apex Court in Civil Appeal No.6734/2012, in the case of M/s.Payal Vision Ltd. v. Radhika Choudhary, wherein also like in this case father of the defendant after taking property on lease has put up temporary structures to his convenience and their lordships observed that what is required to be established by the plaintiff - landlord is the existence of jural relationship of landlord and tenant between the parties and termination of tenancy either by lapse of time or by notice served by the landlord under Section 106 of the Transfer of Property Act. So long as these two aspects are not in dispute, the court can pass a decree in terms of Order 12 Rule 6 of CPC and there also validity of the lease deed what the defendant relies under Ex.D1 - unregistered Lease Agreement and its effect and evidentiary value is considered by observing the fact that Lease Deed was not registered did not make any material difference so long that the defendant had been put in possession of the demised 26 O.S.No.2034/2015 property pursuant to the said document and so long as the property was held by such person as a tenant. Therefore, in this case also by virtue of Ex.D1 only the father of the defendant was inducted in possession long back on 17.03.1969 and he has put up shed and structures what is permitted under the said document and he has run his business, now after his death as discussed herein above the present defendant is running the business by paying rentals till October 2014 as alleged by the plaintiff. Therefore, as the defendant has not paid rentals and premises is required for the personal use of the plaintiff, the defendant has become chronic defaulter by not paying the rentals upto date, notice of termination of tenancy under Section 106 of the Transfer of Property Act was issued as per Ex.P3 and P4. Therefore, it is deemed that he has continued the tenancy by making payment of rentals under the legal heirs of deceased landlord and now, he is estopped from denying the jural relationship of landlord and tenant and liable for eviction.
27. The other decision relied on is decided by the Delhi High Court in RC Rev. No.291/2012 dated 27 O.S.No.2034/2015 16.04.2014 in the case of Puran Chand Aggarwal v. Lek Raj. There also their lordships have held that one co-owner can maintain a suit for eviction against the tenant basing on the decision of the Hon'ble Supreme Court. Their lordships have observed that co-owner file a suit for eviction does so on his own behalf and in his own right and as an agent of other co-owners, consent of other co-owners is assumed to be taken unless it is shown that other co-owner is not agreeable to eject the tenant and the suit was filed in disagreement.
28. The learned counsel for the plaintiff has also relied on a decision reported in AIR 1977 409, in the case of Union of India v. Moksh Builders and Financiers Ltd. and others etc., wherein theirs lordships have clearly held that while the burden initially rests on the party who would fail if no evidence is led at all, after the evidence is recorded, it rests upon the party against whom judgment would be given if no further evidence were adduced by either side. Thus the burden of proof is not static and may shift during the course of the trial.
28 O.S.No.2034/2015
29. The learned counsel for the plaintiff has also a relied on a decision reported AIR 1991 Supreme Court 1040 in the case of Raghunathi and another v. Raju Ramappa Shetty, wherein it is held that once the parties have been permitted to produce evidence in support of their respective cases and it is not their grievance that any evidence was shut out the question of burden of proof loses significance and remains only academic.
30. Here, in this case the defendant has not entered into the witness box to substantiate his defence and the allegations. Under Section 101 of Evidence Act, the defendant is expected to prove his defence and assertions made against the plaintiff, though initial burden to prove is on the plaintiff, but once it is discharged onus shifts on to the other side to disprove the same. As the defendant is refrained from entering into the witness box, not subjected to cross-examination by the learned counsel for the plaintiff, adverse inference can be drawn against the defendant. His pleading remains pleading only and not translated into proof. Any suggestions made to PW-1 in the cross- examination doesn't take case of the defendant anywhere 29 O.S.No.2034/2015 unless he is able to discharge his burden to prove certain facts alleged against the plaintiff as required under Section 101 of the Evidence Act by leading evidence. Any pleading without evidence is not the evidence and proof at all. Therefore, in the absence of the evidence of the defendant, it is needless to say that the plaintiff has established that he can maintain a suit for eviction against the tenant and he has also proved the jural relationship of landlord and tenant between them and he has terminated the tenancy of the defendant by issuing valid notice under Ex.P3 and P4 under Section 106 of the Transfer of Property Act. Therefore, it is needless to say that the plaintiff has made out sufficient grounds and proved substantially that the property is required for his personal use and the defendant is liable to be evicted and it is a fit case to pass an order of ejectment against the defendant. The plaintiff is entitled to get vacant possession of the suit schedule property from the defendant. Accordingly, I answer Issue No.1 and 2 in the affirmative.
31. In this case, the plaintiff has contended that the defendant had been paying monthly rent of Rs.15,000/- per 30 O.S.No.2034/2015 month excluding electricity and water charges. The defendant is running the business in the name and style Sree Jayalaskhmi Enterprises in the schedule premises. He has deposed in his evidence that from October 2014 to till date he has become chronic defaulter and failed to make payment of rentals. Now, if the premises is let out it would fetch Rs.30,000/- per month. Since even after termination of tenancy the defendant is continued to be in possession of the schedule premises, he is liable to pay damages of Rs.30,000/- per month for unauthorized use and occupation of the schedule premises from the date of suit till the defendant quit and deliver the vacant possession of the schedule property. He has also sought to determine mesne profits under Order 20 Rule 12 CPC. In the written statement filed by the defendant, he has denied the claim made by the plaintiff. In para 6 of the written statement, it is contended that originally the ground rent started at Rs.100/- per month and rent was enhanced from time to time and rent as on today payable by the defendant is Rs.2,500/- per month. The plaintiff's say that he has received rent from the defendant of Rs.15,000/- per month 31 O.S.No.2034/2015 is not convincingly proved before the court. According to the defendant, he has paid rent to Smt.Rukmini and Sri.Srinivas, who are none else than the sister and brother of the plaintiff, who are residing in Bangalore at the rate of Rs.2,500/- per month. However, he has not produced any evidence to substantiate that he has paid rentals at such rate to the Smt.Rukmini and Sri.Srinivas except one receipt
- Ex.D4. In the schedule of the plaint, the plaintiff has not described the super structure. According to the contention of the defendant that his father had taken the site on lease on a ground rent of Rs.100/- and his father has put up structure and running the business under the name and style - Sree Jayalakshmi Enterprises. In the reply notice at Ex.P7 dated 05.02.2015, the defendant has simply denied their landlord and tenant relationship and as such, there is no question of any default in payment of rents alleged, but he has not specified what was the actual rent paid by him. If we go through the cross-examination of PW-1, he admits Ex.D1 - original unregistered Rent Agreement and also admits that his father has not constructed any building in the said site. He admits Ex.D2 - Approved Map. In the 32 O.S.No.2034/2015 said sanctioned plan we can make out the nature of the structure in the suit schedule property, wherein the defendant is running his business. A clear admission of PW.1 in the cross-examination is that the building was constructed at the cost of the tenants. That means, while site was taken on lease on monthly rentals payable to the landlord / owner and it is only thereafter father of the defendant has put up the structure. The Special Notice under Section 145 of Bangalore Municipal Corporation Act, 1949, issued to mother of PW-1 - Smt.Jayalakshmiammal and tenant - Sri.Purushotham, who was the partner of the father of the defendant then. That is way back in 1971 itself the vacant land bearing Sy.No.27 was assessed on an annual value of Rs.1,000/- with property tax of Rs.150/- and other cess mentioned therein. As it was leased, tax was assessed for lessee also. Ex.D5 evidencing that such building tax and water tax was paid by the defendant. Even though Ex.D4 shows that rent towards building and site of Rs.2,000/- was received by sister of the plaintiff - Smt.H.Rukmni, but nevertheless it can be said that the say of PW-1 that he used to receive rentals from the defendant 33 O.S.No.2034/2015 of Rs.15,000/- per month cannot be appreciated at all. Further, it is admitted in the cross-examination that after the death of Sri.M.Rajashekar rent was not increased. He is not having any proof to show that he has received Rs.15,000/- as rent and he is not paying any tax. Therefore, one thing is clear that there is no basis for the claim made by the plaintiff of Rs.15,000/- per month rentals from the defendant. He has not produced any rent receipt or any independent evidence to that effect. Even though the defendant has not entered into the witness box and not subjected to cross-examination, doesn't mean that whatever the evidence given by PW-1 need be taken as a gospel truth. PW-1 has to prove to the satisfaction of the court, what was the rent actually he received. In the absence of proof given by defendant, it is needless to say that taking into consideration of the present standard of life, the court need to fix the damages. Because, PW-1 has stated that since October 2014 the defendant has stopped making payment, that is the reason tenancy was terminated by issuing notice under Section 106 of the Transfer of Property Act. Therefore, the court has come to the 34 O.S.No.2034/2015 conclusion that, the plaintiff is entitled to get vacant possession of the suit schedule property from the defendant. Further, from the evidence and also the lease deed for 11 months dated 04.04.1979 what is pleaded by PW-1 reveal that for ground rent as well as the rent for the premises, rent was fixed and tenant had agreed to hand over vacant possession of the site as well as the structure standing thereon to the owner in case of eviction. Therefore, after the termination of tenancy under notice Ex.P3 and P4, by the end of tenancy month of January 2015 possession of the defendant becomes unauthorized use and occupation and by running business he has earned sufficiently. Therefore, under Order 20 Rule 12 CPC if mesne profits is determined, directing the defendant to pay damages for the unauthorized use and occupation of the premises subsequent to the termination of tenancy from the date of termination of tenancy till the handing over of vacant possession of the suit schedule property to the plaintiff. If it is quantified at Rs.10,000/- per month that will be just and reasonable by way of damages. 35 O.S.No.2034/2015
32. Issue No.3:- For the forgoing reasons, I proceed to pass the following:-
ORDER Suit filed by the plaintiff against the defendant is hereby decreed with costs.
The defendant is directed to vacate and deliver vacant possession of the suit schedule property to the plaintiff within 3 months from the date of this judgment.
The defendant is directed to pay damages at the rate of Rs.10,000/- per month from the date of termination of tenancy till the handing over of vacant possession to the plaintiff as required under Order 20 Rule 12 of CPC.
Draw decree accordingly.
(Dictated to the Judgment Writer on computer, typed by her, the transcript thereof corrected and then pronounced by me, in open Court, this the 29th day of July 2016) (BAILUR SHANKAR RAMA) ND 42 ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU.
ANNEXURE I. List of witnesses examined on behalf of:
36 O.S.No.2034/2015
(a) Plaintiff's side:
PW-1 - Sri.H.S.Shivaramakrishnan
(b) Defendant's side: Nil II. List of documents exhibited on behalf of:
(a) Plaintiff's side:
Ex.P1 : Katha Certificate
Ex.P2 : Tax Paid Receipt
Ex.P3 & 4 : Copy of Legal Notices
Ex.P5 : Postal Receipt
Ex.P6 : Postal Acknowledgement
Ex.P7 : Reply Notice
Ex.P8 : Uttara Pathra
Ex.P9 : Katha Certificate
(b) Defendant's side:
Ex.D1 : Copy of Lease Deed
Ex.D2 : Sanctioned Plan
Ex.D3 : Copy of Special Notice
Ex.D4 : Rent Receipt
Ex.D5 : Tax Paid Receipt
Ex.D6 : Letter of K.Purushotham to
Smt.Jayalakshmi Ammal
42nd ADDL. CITY CIVIL & SESSIONS JUDGE,
Bengaluru.
37 O.S.No.2034/2015
(Judgement pronounced in the open
Court and order portion of the same
is extracted as under)
ORDER
Suit filed by the plaintiff against the defendant is hereby decreed with costs.
The defendant is directed to vacate and deliver vacant possession of the suit schedule property to the plaintiff within 3 months from the date of this judgment.
The defendant is directed to pay damages at the rate of Rs.10,000/- per month from the date of termination of tenancy till the handing over of vacant possession to the plaintiff as required under Order 20 Rule 12 of CPC.
Draw decree accordingly.
(BAILUR SHANKAR RAMA) 42nd Addl.CC& SJ, Bengaluru.