Karnataka High Court
Shri Jayaram Jayasurya vs Sri Sagheer Ahmed on 20 January, 2024
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
CIVIL REVISION PETITION NO.25 OF 2021 (SC)
BETWEEN:
SHRI JAYARAM JAYASURYA
SON OF LATE B.K.JAYASURYA,
AGED ABOUT 67 YEARS,
RESIDING AT NO.709,
1ST MAIN, 1ST STAGE,
INDIRANAGAR,
BANGALORE-560038.
...PETITIONER
(BY SRI. P.B.AJIT, ADVOCATE)
AND:
SRI. SAGHEER AHMED
MAJOR,
AT NO.41, L.NO.10 STREET,
ARUNACHALA MUDALIAR ROAD,
SHIVAJINAGAR,
BANGALORE-560071.
...RESPONDENT
(BY SRI. M.D.RAGHUNATH, ADVOCATE)
THIS CRP IS FILED UNDER SECTION 18 OF THE SMALL
CAUSES COURTS ACT AGAINST THE JUDGMENT AND DECREE
DATED 19.10.2019 PASSED IN SC.No.15202/2015 ON THE FILE
OF THE XV ADDITIONAL SMALL CAUSE JUDGE AND XXIII
ACMM, BENGALURU, DISMISSING THE SUIT FOR EJECTMENT.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDER ON 18.11.2023 AND COMING ON FOR
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PRONOUNCEMENT OF ORDER THROUGH VIDEO CONFERENCE
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
This revision petition is filed under Section 18 of the Karnataka Small Causes Courts Act, 1964 challenging the judgment and decree dated 19.10.2019 passed by the XV Additional Judge, Court of Small Causes, Mayo Hall Unit, Bengaluru (SCCH - 19) (henceforth referred to as 'Trial Court') in S.C.No.15202/2015 by which, a suit filed for eviction and recovery of possession of the suit property was dismissed.
2. The parties shall henceforth be referred to as they were arrayed before the Trial Court. The petitioner was the plaintiff and the respondent was the defendant.
3. A suit in S.C.No.15202/2015 was filed for eviction of the defendant from a commercial premises bearing No.41, L No.10th street, Arunachalam Mudaliar Road, Shivajinagar, Bengaluru. The plaintiff claimed that the Commissioner for Government of Territories of His 3 Highness The Maharaja of Mysore had granted a larger estate to his predecessors on 06.12.1867 and that the suit property was a part of such larger extent. He claimed that his great great grandfather Sri. B. Veeraswamy Chetty had constructed two temples over a portion of the land named, Sri. Ekambaramswamy temple and Smt. Padmavathamma temple. He claimed that in order to support the temples, his great great grandfather constructed shops in the remaining portion of the land granted to him. He claimed that after the death of Sri. B. Veeraswamy Chetty , his son B. Sreeramalu Chetty inherited the properties and continued the management and administration of the properties and the adjoining land and properties. After his death, his son B.S. Kannaiah Chetty inherited the properties and that he executed a Will bequeathing the temple and the shops to the father of the plaintiff, Sri. B.K. Jayasurya Chetty and to the plaintiff. The plaintiff claimed that after the death of his father, he became the full and absolute owner of the entire property including the temples and shops and was managing and administering 4 them. He claimed that separate khathas were assigned to the temple and the shops and they stood in the name of his father, while he continued to pay the tax and other outgoings. He claimed that the defendant had taken on rent the suit shop with effect from 1973 for commercial purposes and had agreed to pay monthly rent of Rs.1,500/-. The plaintiff claimed that as on the date of the suit, the defendant was in arrears of rent of four months and was also liable to pay the electricity and water charges and the maintenance. He alleged that the defendant also caused repairs without his consent resulting in payment of enhanced property tax. He claimed that the building was over 100 years old and was in a dilapidated condition and caused risk to the life and property and therefore, he decided to demolish and reconstruct it immediately. He claimed that though the defendant was informed of the same, he continued to conduct the business in silver and gold polishing at his own risk and responsibility. The plaintiff therefore, issued a notice of termination dated 16.03.2015 and called upon the defendant to quit and 5 deliver vacant possession. However, the defendant issued an untenable reply denying the title of the plaintiff and that he was not a tenant under the plaintiff. The plaintiff was therefore, advised to file the present suit for eviction of the defendant.
4. The defendant contested the suit by filing his written statement and denied that the great great grandfather of the plaintiff was granted the land and that he constructed the shop in question. He also denied that he took the premises on rent from the father of the plaintiff in the year 1973 on a monthly rent of Rs.1,500/-. He also denied that he was in arrears of rent of Rs.6,000/-. He claimed that he was in possession of the shop in his own right and that the plaintiff was neither the owner nor the landlord of the premises. He claimed that he was paying the property tax in respect of the suit property to the Bruhat Bengaluru Mahanagara Palike (BBMP) and that the BBMP had recognized him as an occupant and had issued the khatha in his name. He claimed that he was 6 paying lumpsum amount to the temple as his contribution like any other devotee of the temple and contended that there was no relationship of landlord and tenant.
5. Based on these contentions, the suit was set down for trial. The plaintiff was examined as PW.1 and he marked Exs.P1 to P10. The defendant was examined as DW.1 and he marked Exs.D1 to D9.
6. During the course of the proceedings, the Trial Court referred Ex.P10, Vakalath filed by the defendant, his written statement and his chief-examination to a handwriting expert to compare the disputed signature of the defendant on the rear side of the Ex.P10 with the admitted signatures of the defendant. In response thereto, a report was submitted by the Central Forensic Science Laboratory, where it was opined that the questioned signature when compared with the standard signatures showed similarities in the writing habits and that there were no dissimilarities and therefore, both the signatures were authored by the same person. 7
7. The Trial Court after considering the oral and documentary evidence, dismissed the suit on the following grounds:-
(i) that the plaintiff admitted that he had not produced any documents of title to prove his ownership over the suit property and had not produced any rent agreement to establish that the defendant was a tenant.
(ii) That he did not produce any document to
establish his relationship with Sri. B.
Veeraswamy Chetty, whom the plaintiff
claimed was his great great grandfather.
(iii) That though the plaintiff claimed title under the Will at Ex.P5 executed by B.S. Kannaiah Chetty, he did not produce any document to show the ownership of the B.S. Kannaiah Chetty.
(iv) That the plaintiff did not make any effort to prove the tenancy of the defendant in the suit premises even though the defendant 8 denied that he was a tenant under the plaintiff.
(v) That though the signature of the defendant found on the rear side of Ex.P10 was found to be that of the defendant but there was no name/signature of the person who received it. Hence, mere production of a receipt signed by the defendant was not sufficient to prove that the plaintiff had received the rent from the defendant.
(vi) That plaintiff had executed a gift deed (Ex.D1) conveying the suit property to his wife Smt. Shobha Jayaram and therefore, did not have the locus to initiate eviction of the defendant from the suit property.
(vii) That the khatha of the suit property did not show the name of the owner but only showed the name of the holder and therefore, the plaintiff was not the owner of the suit property.9
8. Being aggrieved by the said judgment, the plaintiff has filed this petition.
9. During the pendency of this petition, it was brought to the notice of the Court that the plaintiff had filed S.C.NO.15201/2015 in respect of shop No.43, L - 10th street, S.C.No.15204/2015 in respect of shop No.40, L - 10th street and S.C.No.15200/2015 in respect of shop No.44, L - 10th street. He claimed that in S.C.No.15201/2015, the Trial Court had decreed the suit for ejectment against which, the tenants had filed CRP No.644/2018 before this Court, which was dismissed and a Special Leave Petition filed therefrom was also dismissed on 12.07.2021. The ejectment suit filed in S.C.No.15204/2015 was decreed and the tenant was evicted through the due process of the Court and in S.C.No.15200/2015, the tenant had voluntarily vacated the premises. While in S.C.No.15203/2015, the possession was taken in accordance with law. The plaintiff also claimed that the gift deed executed by him in favour of his 10 wife was cancelled and therefore, the right of ownership of the suit property stood reverted to the plaintiff. This Court therefore, granted an opportunity to place all the materials before the Trial Court and lead any oral evidence and directed the Trial Court to comprehensively consider the case of the plaintiff. This Court granted opportunity for both the parties to lead any further evidence and directed the Trial Court to submit a report to this Court by or before 30.06.2023, which was later extended by one month in terms of order dated 28.6.2023. Accordingly, the Trial Court has recorded further evidence of the parties and has placed the same before this Court.
10. The plaintiff adduced further evidence and marked Ex.P11, which was a gift deed dated 23.08.2013 and Ex.P12, which was deed dated 21.10.2019 cancelling the gift deed dated 23.08.2013, Ex.P13 which was a notice issued by the Assistant Revenue Officer regarding transfer of khatha of shop Nos.39, 40, 41, 42, 43 and 44 of L - 10th street. Ex.P14 which is the property tax paid receipt of the 11 suit property for the year 2010-11, khatha certificate of property No.43 is marked as Ex.P15 and khatha extract as Ex.P16, khatha certificate of property No.44 as Ex.P17, khatha extract as Ex.P18, rent agreement executed by tenant in shop No.44 as Ex.P19, property tax paid receipt of shop No.41 for the year 2008-09 as Ex.p20, a memorandum of understanding between the plaintiff and the tenant in shop No.40 as Ex.P21, khatha of the shop No.42 as Ex.P22, tax paid receipts in respect of shop Nos.43, 44 as Ex.P23 and tax paid receipts in respect of shop No.35 to 42 as Exs.P24, P25, P26, a copy of the notice of enquiry issued by the Assistant Revenue Officer as Ex.P27 and the photographs of the suit property as Exs.P28, P29, P30, P31, P32 and a pen drive as Ex.P33. He also adduced further oral evidence.
11. Likewise, the defendant adduced further evidence and marked two electricity bills as Exs.D10 and D11 and the receipts as Exs.D12 and D13, 5 tax paid receipts as Ex.D14 and khatha certificate and extract as 12 Exs.D15 and D16. He also adduced oral evidence and was cross-examined.
12. The learned counsel for the plaintiff submitted that Exs.P15 and P17 were the khathas in the name of the father of the plaintiff in respect of the properties bearing L
- Nos.43, and 44. He further submitted that the gift deed executed by the plaintiff was cancelled on 21.10.2019, which is evident from Ex.P12 and that the tenants in shop Nos.44, 40 had vacated the premises and handed over the possession to the plaintiff. He submitted that Ex.P22 was khatha of property No.42 and the owner was shown as temple. He contends that under Ex.P24, the property tax in respect of the shop No.35 to 42 was paid for the years 1970-1971 to 1971-72. He claimed that the cess imposed by the BBMP in respect of the suit property was paid by the plaintiff which unfortunately was not marked before the Trial Court. He contends that Exs.P28 to 32 were the photographs and that the defendant admitted that the shop on the left side of Ekambareshwara temple was 13 admittedly possessed by the defendant. He submitted that the defendant admitted that on the right side and on the rear of the suit property, the temple existed. However, he feigned ignorance of the existence of shop No.40 on the left side of the suit property. He also feigned ignorance that the tenants in shop Nos.40 and 44 were evicted through the due process of law. He contended that except claiming that his father entered into the suit premises and was in possession of the suit property "in his own right as the owner" was not justified and therefore, the defendant was a tenant under the plaintiff and was therefore, liable to quit and deliver vacant possession of the suit property. He contended that in the reply notice at Ex.P3 the defendant specifically claimed that he was paying the tax to the suit property as owner in possession for decades and also claimed that "the premises under his occupation was a temple property of lord Ekambareshwar and for the purpose of performing pooja in temple some amount was paid every year as contribution." He therefore, contends that the defendant cannot now 14 contend that the suit shop does not belong to the temple. He submitted that a perusal of Exs.P28 to P32 also establish that the suit property is situate abutting the temple. Therefore, Ex.P10 which carries the name of the defendant has to be construed as issued by him towards the rent for the months of October, November and December, 2013 in respect of the suit property. He therefore, prayed that the impugned judgment and decree passed by the Trial Court be set aside.
13. Per contra, the learned counsel for the defendant submitted that though the plaintiff claimed that eviction suits were filed against the tenants in S.C.No. 15201/2015, S.C.No.15204/2015, S.C.No.15200/2015 and S.C.No.15203/2015, he did not make any efforts to produce copies of the judgments passed in the said proceedings. He submitted that except the signature found on Ex.P10, there was no document to establish the tenancy of the defendant and Ex.P10 did not prove the tenancy of the defendant in the suit premises. He contends 15 that except the self-serving statement of the plaintiff that he was the owner and the defendant was tenant, there was no document produced to establish either the ownership of the plaintiff or that the defendant was a tenant under him or his father. He therefore, contends that the plaintiff is bound to establish his title before the competent Court and unless the same is done, he is not entitled to evict the defendant. The learned counsel further invited the attention of the Court to the evidence of PW.1 and contended that he admitted that Ex.P9 was not signed by the defendant and though plaintiff admitted that he had the book containing the rent receipts, he did not produce the same. He contended that Ex.P10 was a receipt issued by the temple acknowledging the contribution and if the plaintiff had received it, he was bound to put his signature. He therefore, contended that there is no evidence to establish the tenancy and the ownership of the plaintiff and hence, the Trial Court was justified in rejecting the suit filed by the plaintiff.
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14. I have considered the submissions made by the learned counsel for the plaintiff and the learned counsel for the defendant. I have also perused the records of the Trial Court as well as its judgment and decree. I have also considered the grounds urged by the plaintiff in this petition.
15. The plaintiff claimed to be the owner of the suit premises and therefore, caused a notice dated 16.03.2015 (Ex.P1) terminating the tenancy and called upon the defendant to quit and deliver the vacant possession. In response to this notice, the defendant issued a reply (Ex.P3) denying that he was a tenant under the plaintiff but claimed that, "In fact, my client is in possession and occupation of the shop premises under reference for over a period of 40 years and the taxes to the said shop premises is paid by my client as owner in possession for decades to the Bangalore City Corporation. In fact, the premises under occupation of my client is a temple property of Lord Ekambreshwar and for 17 the purpose of performing pooja in the temple premises certain amounts in lumpsum is paid every year by my client towards contribution and no any amount is paid towards rent as stated in your notice under reference."
16. Ex.P5 is the Will dated 20.07.1974 of Sri. B.S. Kannaiah Chetty, propounded by the plaintiff who claimed that the property devolved upon him and his father. This Will bears a reference that Sri. B Veeraswamy Chetty had constructed two temples in the granted land one known as Sri. Ekambareshwara Swamy temple and another known as Padavettamma temple. The defendant is not a person interested to deny the lawful execution of the Will and therefore, the Will cannot be disbelieved at the instance of the defendant. Ex.P6 is the khatha in respect of the suit property issued on 15.12.1985, which indicates that the suit property was owned and possessed by the father of the plaintiff and Ex.P7 is the khatha extract of the suit property which also indicates the name of the father of the plaintiff. He also seems to have paid the property tax on 18 17.12.1985 in respect of the suit property as per Ex.P8. Ex.P9 is a counterfoil of the rent receipt dated 08.12.2001 allegedly issued by the defendant but unfortunately does not bear his signature but the rent is shown as a sum of Rs.2,000/- for "month 1st July". Therefore, nothing much turns on Ex.P9. Ex.P10 is the most crucial document and is dated 10.01.2014 and is a counterpart of the rent receipt for the month of October, November and December, 2013 in respect of the suit property. This receipt is signed by the defendant on the rear side. The defendant claimed that this receipt was issued by him not towards rent but towards contribution to the temple and that the plaintiff had misused the receipt to fabricate a rent receipt. If that be so, it was incumbent upon the defendant to produce the counter part of Ex.P10 to establish that a sum of Rs.4,500/- was contributed to the temple as a donation. No doubt, the plaintiff even before initiating the proceedings against the defendant for eviction had gifted the suit property to his wife on 23.08.2013 as per Ex.P11, however, the said gift deed was cancelled on 21.10.2019 19 and therefore, it can safely be said that the title of the plaintiff is restored back to him. There are documents produced by the plaintiff such as Ex.P14 which is the property tax receipt in respect of the suit property for the year 2010-11 and Exs.P24, P26 to show that property tax in respect of shop Nos.30 to 41 was for the years 1970-71, upto 1977-78 was paid. This apart, the defendant did not dispute that the suit property was situate abutting the Ekambareshwara temple as found in Ex.P28 and adjacent to the suit property as found in Ex.P30, there is another property which is locked, which the plaintiff claims it to be shop No.40.
17. Though the defendant claimed that he was in possession as an absolute owner, he did not establish the same by producing any material document. On the contrary, documents such as electricity bills, property tax paid receipts produced by him before the Court, did not, at any rate, establish his ownership of the property. Ex.D15 was the holder khatha which did not mention the name of 20 the defendant and Ex.D16 which is the khatha extract merely showed the name as "holder".
18. In so far as the oral evidence on record, though the defendant tried to punch holes in the evidence of the plaintiff to generate a suspicion regarding the title of the plaintiff, the same cannot be believed as there are some documents to show that the khatha of the suit property stood in the name of the father of the plaintiff at an undisputed point of time i.e., in the year 1985. Since the only issue that had to be considered by the Court is whether there was any documentary evidence to establish the tenancy and also whether there was proper termination of tenancy, the oral evidence of the defendant needs to be considered.
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19. In his further cross-examination, he deposed as follows:-
"Question: You have not produced document of title in the name of your grand father Sardar Khan in respect of schedule suit property, what do you say? 22 Answer: I have produced Electricity bill, Khat extract, Tax paid receipt.
It is true to suggest that, Khat extract and tax paid receipts are not in the name of my grand father. Witness voluntarily says that, It is in the name of Holder.
Question: Can you say the boundaries of shop no 41?
Answer: Right side temple and left side houses of other persons and behind the shop temple is existed.
Now I see the Ex.P.32 photograph. It is true to suggest that, at Ex.P32 my shop is appearing with closed shutter and opened shop with chair. The portion of the photograph is marked as Ex.P32 a.
Question: Whether shop number 40 is existed towards left side or western side of shop number 41?
Answer: I do not know.
Question: One Muni Swamy was evicted from shop number 40 through due process of law what do you say?
Answer: I do not know.
Question: One Maheboob was evicted from shop number 44 through due process of law what do you say?23
Answer: I do not know.
Question: In this suit and suit filed against Muni swamy, my self and Muni swamy engaged same advocate on behalf of us, what do you say?
Answer: I do not know."
20. The evidence of the defendant extracted above therefore, indicates a deliberate and desperate attempt to wriggle out of the relationship of a tenant and landlord. The fact that the signatures of defendant on Ex.P10 was proved to be his by virtue of the Forensic report and the fact that he admitted his signature found on Ex.P10 and also the fact that the plaintiff was the owner of the shop Nos.40 to 44 as found in the khatha extracts makes it more than clear that the defendant was tenant in occupation of the premises in question. Ex.P10 also corresponds with the claim of the plaintiff that the defendant had agreed to pay a monthly rent of Rs.1,500/-. Therefore, it can safely be said that the plaintiff had proved that he was the landlord, while the defendant was a tenant in occupation of the suit property. Since the 24 plaintiff had validly terminated the tenancy of the defendant, the plaintiff was entitled to the vacant possession of the suit property. The Trial Court did not have the benefit of the additional documentary evidence which are marked as Exs.P11 to P33.
21. In that view of the matter, this revision petition is allowed. The impugned judgment and decree dated 19.10.2019 passed by the XV Additional Judge, Court of Small Causes, Mayo Hall Unit, Bengaluru (SCCH -
19) in S.C.No.15202/2015 is set aside. The suit filed by the plaintiff for ejectment of the defendant is allowed and the defendant is directed to quit and deliver the vacant possession of the suit property to the plaintiff within a period of three months from today.
Parties to bear their own costs.
Sd/-
JUDGE PMR