Karnataka High Court
Smt. Kaisar Jahan W/O Mohd. Abdulla vs Abdul Wajid Ali S/O Abdul Khadar on 19 February, 2021
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF FEBRUARY, 2021
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
C.R.P. NO 200007 OF 2015
BETWEEN:
SMT. KAISAR JEHAN
W/O MOHD. ABDULLA
AGE: 60 YEARS, OCC: GOVT. TEACHER
R/O H.NO.12-12-16/4
HAJI COLONY, RAICHUR - 584 101
... PETITIONER
(BY SRI AMEET KUMAR DESHPANDE, ADVOCATE)
AND:
ABDUL WAJID ALI
S/O ABDUL KHADAR
AGE: 49 YEARS, OCC: BUSINESS
R/O H.NO.12-6-367 (OLD)
NEW NO.12-6-440
PLOT NO.108-A, LBS NAGAR
RAICHUR - 584 101
OR
ABDUL WAJID ALI
S/O ABDUL KHADAR
AGE: 49 YEARS, OCC: SHAMS AUTOMOBILE
R/O NEAR RTPS NEW GATE ADJACENT TO
RTPS CONTRACTORS ASSOCIATION
SHAKTINAGAR, RAICHUR-584 101
... RESPONDENT
(BY SRI LIYAQAT FAREED USTAD, ADVOCATE)
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THIS C.R.P. IS FILED UNDER SECTION 115 OF THE CODE
OF CIVIL PROCEDURE, CHALLENGING THE JUDGMENT DATED
22.11.2014 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE
AND CJM, RAICHUR IN S.C.NO.04/2011.
THIS C.R.P. HAVING BEEN HEARD AND RESERVED FOR
ORDER, COMING ON FOR PRONOUNCEMENT OF ORDER THIS
DAY, THIS COURT MADE THE FOLLOWING:
ORDER
This is a petition from the Court of Principal Senior Civil Judge and CJM, Raichur.
2. For the sake of convenience, the parties shall be referred to in terms of their status and ranking before the Trial Court.
3. The plaint averments are stated as under:
Plaintiff is the absolute owner of the house property bearing Mpl.No.12-6-367 (old), 12-6-440 (new), situated at LBS Nagar, Raichur and that defendant is statutory tenant on a monthly rent of Rs.300/-. It is averred that defendant committed default in paying monthly rent from 01.04.2009 till the filing of the suit and he is in arrears of rent of Rs.8,700/- for the period from 01.04.2009 to 30.06.2011, plaintiff has been regularly asking the 3 defendant to pay the monthly rent and also arrears of rent, but in vain. Hence, plaintiff was constrained to issue legal notice under Section 106 of Transfer of Property Act.
The notice was sent to the address as shown in the cause title on 06.07.2011 by registered post with acknowledgment due. It was returned with endorsement that the door of the suit house has been closed continuously for 7 days. Thereafter, the plaintiff sent one more notice on 22.07.2011 by pasting the copy of the legal notice on the wall of the suit house as required under Transfer of Property Act. Further, he also got published the legal notice in the Raichur Vani daily newspaper on 24.07.2011.
Contending that the cause of action arose on 01.04.2009 when the defendant committed default in the payment of monthly rent. Therefore, plaintiff was constrained to seek the aid of the Court seeking the relief of arrears of rent and possession of the suit house.
On service of summons, defendant entered appearance and filed the written statement. He denied the 4 jural relationship of landlord and tenant. He has not paid the rents to the plaintiff at any point of time and that he is not in arrears of rents as alleged by the plaintiff. He contended that he is the absolute owner and in possession and enjoyment of the suit house property having purchased the same from one Narasanna S/o Badenna for consideration of Rs.99/- on 18.06.1981. It was also contended that since the date of purchase, he is in possession of the suit house. Among other grounds, he prayed for dismissal of the suit.
On the basis of the pleadings, the Trial Court framed the following:
ISSUES
1. Whether the plaintiff proves that defendant is a tenant on a monthly rent of Rs.300/-?
2. Whether the plaintiff further proves that defendant is in arrears of rent of Rs.8,700/-?
3. Whether the suit is barred by limitation?5
4. Whether the defendant proves that suit is not properly valued?
5. Whether the plaintiff is entitled for the relief?
6. What order or decree?
ADDITIONAL ISSUES:
1. Whether the defendant proves that he is the exclusive and independent owner of Plot No.108/A, bearing Mpl.No.12-6-367 (old), 12-6-440 (new) of LBS nagar, Raichur on the basis of unregistered sale deed dated:
18-6-1981?
2. Whether the defendant proves that he is in actual physical possession from 18-6-1981 till this day and his title become perfected by way of adverse possession? To substantiate the claim, the Special Power of Attorney Holder/son of the plaintiff was examined as PW.1 and got marked Exs.P1 to P11. On the other hand, defendant examined himself as DW.1 and got marked Exs.D1 to D7.
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On the trial of action, it was held that the plaintiff has failed to establish the jural relationship. Therefore, he is not entitled for arrears of rent and for recovery of possession. Accordingly, the suit came to be dismissed.
Aggrieved by the judgment and decree, the plaintiff has filed revision petition under Section 115 of CPC.
4. Sri. Ameet Kumar Deshpande, learned counsel for petitioner submitted that the order passed by the Trial Court suffers from serious error of jurisdiction and has caused substantial injustice to the revision petitioner. Therefore, the judgment and decree passed by the Trial Court is liable to be set aside.
Next, he submitted that the Trial Court has failed to frame important and necessary issues.
A further submission was made that the evidence on record clearly establishes the jural relationship of landlord and tenant between the parties. Hence, the finding on issue Nos.1 and 2 are contrary to the evidence on record 7 and therefore the judgment and decree is liable to be set aside.
It is submitted that plaintiff has purchased the suit house from one Narasanna in the year 1982 and that in the year 2012, the name of plaintiff is recorded in the records of the municipality. The Trial Court has rightly given findings against the defendant/respondent on additional issue Nos.1 and 2. Hence, it was sought to urge that Trial Court ought to have decreed the suit for recovery of possession. Therefore, dismissal of the suit in the light of the findings arrived at by the Trial Court is serious error of jurisdiction and therefore liable to be set aside.
Counsel submitted that plaintiff has claimed the relief of recovery of possession on the basis of title, but the Trial Court has committed serious error of jurisdiction in holding that the plaintiff has not claimed the possession based on the title. Therefore, he submitted that the suit ought to have been decreed.
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Lastly, he submitted that the judgment and decree is liable to be set aside and the revision petition may be allowed.
5. Per contra, Sri. Liyaqat Fareed Ustad, learned counsel for respondent justified the judgment and decree of the Trial Court.
Next, he submitted that the defendant has specifically denied the jural relationship as tenant and landlord and that the plaintiff has failed to prove the same.
A further submission was made that learned Judge taking into consideration the oral and documentary evidence on record rightly dismissed the suit. Therefore, he submitted that the petitioner has not made out any good ground to interfere with the order passed by the Trial Court. Accordingly, he prayed for dismissal of the revision petition.
6. Heard the contentions urged on behalf of respective parties.
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7. The short question which arises for consideration is, whether the judgment and decree requires any interference by this Court?
The facts have been sufficiently stated. This is simple suit seeking arrears of rent and recovery of possession.
It is the specific case of the plaintiff that she is the absolute owner of the suit house property and the defendant is a tenant under her on a monthly rent of Rs.300/-; that, the defendant committed default in payment of rent. The defendant disputed the relationship of tenant and landlord and contended that he is the absolute owner of the suit schedule property.
In order to substantiate the claim, the Special Power of Attorney Holder/son of the plaintiff examined as PW.1. He has stated that plaintiff is the absolute owner of the suit property, but he has not produced document of title to prove that plaintiff is the absolute of the property in question. There is nothing on record to show that plaintiff is the absolute owner of the property in question. 10
Further, it is the specific case of the plaintiff that defendant is the tenant. The plaintiff has not pleaded when the defendant was inducted into tenancy and there is absolutely no pleading to this effect. There is nothing on record to show that the defendant was inducted into tenancy and they both agreed that their relationship was to be that of landlord and tenant. It is needless to say that any jural relationship between two persons could be created through agreement. In the present case, there is neither an oral nor a written agreement between the plaintiff and the defendant.
It is pertinent to note that plaintiff has pleaded that from 01-04-2009, the defendant stopped paying the monthly rent. But there is nothing on record to show that plaintiff has received monthly rent at any point of time from the defendant. Hence, the contention that he is in arrears and thus liable to be evicted cannot be sustained.
Further, to prove the jural relationship, plaintiff has relied upon documents (Exs.P-1 to P-11) encumbrance certificate, legal notice, reply notice, paper publication, 11 photographs. I have perused the documents with care. In my view, these documents do not prove the jural relationship of landlord and tenant between the plaintiff and the defendant.
It is the specific case of the plaintiff that she is the landlord and defendant is the tenant under her on a monthly rent of Rs.300/-. The burden is on her to substantially establish the relationship. Accept her oral testimony, plaintiff has not chosen to examine a independent witness. In the absence of positive evidence, one cannot conclude that there exists a relationship of landlord and tenant between the plaintiff and defendant.
The Trial Court on proper appreciation of material on record held that plaintiff has failed to establish that defendant is a tenant on a monthly rent of Rs.300/- and when there is a finding that the defendant is not a tenant, question of payment of arrears of rent does not arise. Consequently, the recovery of possession also does not arise for consideration. I find no reason to interfere with Judge's order.
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8. Accordingly, the revision petition is dismissed. No order as to costs.
Sd/-
JUDGE SSD/LG