Karnataka High Court
Sri Surendra Kumar Jain vs Sri S A Subramanya on 6 March, 2020
Equivalent citations: AIRONLINE 2020 KAR 2414
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
R.F.A.No.1103/2012
BETWEEN:
SRI. SURENDRA KUMAR JAIN,
47 YEARS,
SON OF BHAVARLAL JAIN,
R/AT NO.89,
'SADGURU KRUPA'
4TH MAIN, 1ST CROSS, MATHIKERE,
BANGALORE- 560 054.
...APPELLANT
(BY SRI. M N BHAT, ADVOCATE)
AND:
SRI S A SUBRAMANYA,
49 YEARS,
S/O LATE S ASHWATHANARAYANA
@ S A NARAYANA REDDY,
R/AT NO.102, DOMMALURU VILLAGE,
BANGALORE - 560071.
...RESPONDENT
(BY SMT. RAJESHWARI DEVI C, ADVOCATE(ABSENT))
THIS RFA IS FILED U/S 96 READ WITH O-XLI RULE 1
OF CPC,1908 AGAINST THE JUDGMENT AND DECREE
DATED 19-3-2012 PASSED IN O.S.No.2482/2007 BY THE
XLIV ADDITIONAL CITY CIVIL AND SESSION JUDGE,
BANGALORE, DISMISSING THE SUIT FOR EJECTMENT,
ARREARS OF RENT, MESNE PROFITS.
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THIS RFA COMING ON FOR THIS DAY, FOR FINAL
HEARING, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Counsel for respondent/defendant absent. The matter is listed for final hearing and of the year 2012 and the same is taken up for final disposal after hearing the learned counsel for appellant.
2. Appeal is directed against the judgment and decree dated 19-03-2012 passed in O.S.No.2482/2007 by the learned XLIV Additional City Civil and Session Judge, Bangalore, wherein the suit of the plaintiff came to be dismissed with costs. Being aggrieved by the same, plaintiff has come in appeal.
3. In order to avoid confusion and overlapping, the parties herein are referred to in accordance with their rankings as held by them before the trial court.
4. The suit was filed on 26.3.2007 for ejectment and recovery of arrears of rent and mesne profits. 3
5. It is stated that plaintiff is the absolute owner of the suit schedule property i.e. premises bearing No.49, New No.102, situated at Domlur Civil Area, Old Division No.51, BMP New Division No.102, Bangalroe-71, measuring East to West 19 feet and North to South 32.5 feet with 5 square Mangalore tiled roof house and the defendant is a tenant in occupation of the same on a monthly rental of Rs.3,500/-. It is also stated that defendant is a chronic defaulter in payment of rent and as on the date of filing of the suit, he is in arrears of huge amount of Rs.1,12,000/-. Legal notice was issued on 21.1.2007 but the same is of no use. The plaintiff without any alternative filed the suit for ejectment.
6. Defendant appeared and filed the written statement denying the jural relationship. According to the defendant there was no agreement nor the plaintiff is the owner of the schedule property nor the defendant is a tenant of the schedule property who has agreed to 4 pay the rent. It is contended that defendant is the real owner in possession of the schedule property. The suit schedule property was acquired by the defendant's father and subsequently fallen to defendant's share. Defendant borrowed hand loan from plaintiff, who took several signatures on blank papers. It is further contended that defendant has not executed any sale agreement and sale deed in favour of plaintiff. Defendant prays to dismiss the suit with costs. 6. Learned trial judge, considering the aspects of termination of tenancy, existence of relationship of landlord and tenant, default in payment of arrears of rent, raised the issues and found them against the plaintiff on the basis of the oral and documentary evidence produced on both sides and dismissed the suit with costs. The same is challenged by the plaintiff in this appeal.
7. Learned counsel Sri. M.N. Bhat, for plaintiff/appellant would submit that plaintiff has filed 5 documents as per Exs.P1 to P19 and out of which, Ex.P1 is the certified copy of the sale deed dated 1.4.2004; Ex.P2 is the lease agreement dated 6.12.2002, Ex.P3 is the katha certificate, Ex.P11 is the sale deed dated 29.12.2004, Ex.P12 is the plan for construction and Ex.P16 is the General Power of Attorney dated 6.12.2002 and Ex.P18 is the agreement of sale dated 6.12.2002.
8. Learned counsel would further submit that defendant never placed documents contradicting the claim of the plaintiff. However, he is examined as DW1.
9. After hearing the learned counsel for plaintiff/ appellant, I have perused the documents. The following points are crystal clear:
According to the plaintiff, the previous owner of the schedule property is none other than the defendant S.A.Subramanyam. However in the plaint he states that plaintiff was the owner and defendant was inducted as a tenant in the schedule property. It is 6 also claimed that defendant executed power of Attorney on 6.12.2002 in favour of Kanta Devi wife of Surendra Kumar Jain. The said Surendra Kumar Jain is none other than the plaintiff in the case. The substance of the power of attorney stated to have been sworn before the Notary public at Bangalore is, defendant S.A. Subramanyam is stated to be owner of the schedule property due to various reasons he is unable to look after the schedule property and he appointed Kanth Devi as his Power of Attorney Holder. Thus, here is a power of attorney stated to have been executed by defendant S.A. Subramanyam a male person authorizing the wife of plaintiff to sell the property because farmer was busy in his activities. It is stated that children of Subramanyam also have signed as consenting witnesses.
10. There is also an affidavit sworn to by S.A. Subramanyam on the same day i.e. on 6.12.2002 giving a declaration that he is the absolute owner of the schedule property which was acquired by him from his 7 father through a partition dated 15.6.2001 and to discharge the family liability, he has sold the property in favour of Kanta Devi wife of Surendra Kumar Jain for a sale consideration of Rs.2.00 lakh. Thus, on the same day, an affidavit is sworn to the effect of having sold the property in favour of Kanta Devi. Thus, Power of attorney marked as Ex.P16 is to the effect of appointing plaintiff's wife as power of attorney holder incidentally followed by next document, affidavit, wherein, he states that he has sold the property in favour of Kantadevi. Second document is Ex.P18 which is an agreement to sell, wherein same Subramanyam agrees to sell the suit schedule property to Kanta devi for a cash consideration of Rs.2.00 lakh and received entire amount and would execute the registered sale deed of the schedule property at the desire of Kantadevi. There is no time limit to the agreement. Next document is Ex.P3- katha certificate. In the overall consideration of the documents on hand, it appears, the plaintiff has no sanctity for 8 legality and has scant respect for transaction. Basically, he gets a power of attorney of the defendant in favour of his wife who stands as attorney of the defendant who may be doing business in the outside world and home maker is appointed as power of attorney who is none other than the wife of the plaintiff. On the same day, defendant sworn to an affidavit wherein, he declared that he has sold the property to the plaintiff's wife. Next document is a sale agreement on the same day, wherein the defendant agrees to sell the schedule property for a cash consideration of Rs.2.00 lakh received the entire amount and would execute the registered sale deed whenever required by the plaintiff. With all the state of affairs in the above form, the sale deed is dated 1.4.2004 stated to have been executed by S.A. Subramanyam but not in person through the power of attorney Kantadevi who is none other than the plaintiff's wife and sale deed is executed in favour of plaintiff 9 Surendra kumar Jain for a cash consideration of Rs.2.00 lakh.
11. Here, it is necessary to note that, I.A.No.1/2012 and I.A.No.1/2020 are filed by the appellant under order 41 Rule 27 CPC for production of additional documents.
12. I.A.No.1/2012 is filed along with the following documents:
(i) The Xerox copy of the counter folio of the two rent receipt, which bears the signature of the respondent;
(ii) The Xerox copy of the office copy of the legal notice dated 28.8.2004 sent to the respondent by RPAD;
(iii) The Xerox copy of the postal acknowledgement having served the above said notice on the respondent on 2.9.2004;
(iv) The Xerox copy of the office copy of the legal notice dated 8.9.2005 sent to the respondent by RPAD and certificate of post;
(v) The Xerox copy of the postal receipt;
(vi) The Xerox copy of the certificate of post;10
(vii) The Xerox copy of the postal acknowledgement having served the above said notice on the respondent ton 18.8.2005;
(viii) Income tax return with details.
13. I.A.No.1/2020 is filed along with the following documents:
(i) Sale deed dated 2.4.2004 executed by defendant-respondent Sri. S.A.Subramanyam through his GPA Smt. Kanta Devi in favour of Sri. Surendra Kumar Jain appellant-plaintiff;
(ii) Partition deed dated 16.6.2001 in between respondent-defendant and his family members;
(iii) Sale deed dated 21.9.1981 executed by N. Muniyappa in favour of S.A.Ashwathnarayan Reddy who is the father of the Respondent-
defendant.
14. In the circumstances of the case and in the ends of natural justice, I.A.No.1/2012 and I.A.No.1/2020 are allowed. The documents produced along with the applications are taken on record and perused.
15. Registered sale deed is produced along with the application. Smt. Kanta devi wife of Surendra 11 Kumar Jain, declares that she is the power of attorney holder of S.A.Subramanyam and she is executing the sale deed in respect of the schedule property. The interesting aspect is power of attorney is dated 6.12.2012 on the same day followed by affidavit containing declaration of receiving Rs.2.00 lakh followed by sale agreement of the same schedule property wherein defendant has shown as having received Rs. 2.00 lakh and nothing is due. Regard being had to the fact that on the date of sale deed i.e. on 1.4.2004 almost 2 years later, Kanta devi wife of plaintiff still states that she is the power of attorney holder in which event, the statement goes against the substance of the document stated as sale agreement. It is stated that vendor needed fund and hence she was selling the property belonging to her vendor. Regard being had to the fact that under previous document she claims to have become owner of the property. All the discussion are made on the basis of the documents filed by the 12 plaintiff. In the over all circumstances of the case, it is a classic case wherein suit for eviction is filed against he defendant claiming jural relationship of land lord and tenant. On the other hand, the plaintiff has neither has come to the court with clean hands nor has properly declared statement of material facts. Hence, I have no hesitation in holding that there is no relationship of landlord and tenant to get an order of eviction.
16. Learned counsel for appellant submitted that there are rental receipts and rental agreement. In this connection, he has relied upon the followings decisions:
(i) Dr. Ambica Prasad Vs. Md. Alam and another - reported in AIR 2015 Supreme Court 2459;
(ii) M/s. Khandelwal Brothers Co., Ltd. Vs. G.S. Nisar Ahmed reported in ILR 2004 Karnataka 2864;
(iii) P. Honnamma Vs. B. Jannath and another reported in ILR 2007 Karnataka 3892;
(iv) Vedpal Singh Revisionist Vs. Harbansh Sing
Opposite party reported in AIR 1991
Allahabad 320; and
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(v) Jadiyappa Parappa Jabin Vs.
Shivabasanagouda and another reported in 2011 (4)KCCR 2898;
17. Be it rental agreement or rental receipts produced as additional documents get falsified on the very face of it considering the documents marked as affidavit, sale deed, sale agreement and power of attorney.
18. The absence of counsel for defendant is placed on record. No matter, the judgment and decree dated 19-03-2012 passed by the trial court does not call for interference. Hence, I have no hesitation in confirming the judgment and decree of the trial court and dismiss the appeal with costs through out. Accordingly, the appeal is dismissed.
Sd/-
JUDGE tsn*