Karnataka High Court
Issac vs Smt Vajramartha on 21 January, 2014
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 21ST DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
R.F.A.No.128 OF 2013 (RES)
C/W R.F.A.Nos.127/2013 and 129/2013
R.F.A.No.128/2013
BETWEEN:
Issac,
S/o Devansa,
Aged about 63 years,
R/o Portion of Building No.2,
Old bearing No.1/1,
Nanjundappa Garden,
Jeevanahalli, Cox Town,
Bangalore - 560 005. ... Appellant
(By Smt.Jyothi.B.Kangokar, Advocate)
AND:
Smt.Vajramartha,
W/o Thrupal.M.K,
Aged about 47 years,
R/at No.2, (old property bearing No.1/1)
Nanjundappa Garden,
Jeevanahalli, Cox Town,
Bangalore - 560 005. ... Respondent
(By Sri H.N.Venkatesh, Advocate for C/R)
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This RFA is filed under Section 96 CPC, against the
judgment and decree dated 16.10.2012 passed in
OS.No.4284/2009 on the file of the XII-Adll. City Civil and
Sessions Judge, Bangalore, decreeing the suit for ejectment
and etc.
R.F.A.No.127/2013
BETWEEN:
J.Jayaraj,
S/o Late Joseph,
Aged about 59 years,
R/o Portion of Building No.2,
Old bearing No.1/1,
Nanjundappa Garden,
Jeevanahalli, Cox Town,
Bangalore - 560 005. ... Appellant
(By Smt.Jyothi.B.Kangokar, Advocate)
AND:
Smt.Vajramartha,
W/o Thrupal.M.K,
Aged about 47 years,
R/at No.2, (old property bearing No.1/1)
Nanjundappa Garden,
Jeevanahalli, Cox Town,
Bangalore - 560 005. ... Respondent
(By Sri H.N.Venkatesh, Advocate for C/R)
This RFA is filed under Section 96 CPC, against the
judgment and decree dated 16.10.2012 passed in
OS.No.4284/2009 on the file of the XII-Adll. City Civil and
Sessions Judge, Bangalore, decreeing the suit for ejectment
and etc.
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R.F.A.No.129/2013
BETWEEN:
A.C.Susairajan,
S/o A.S.Chowri,
Aged about 78 years,
R/o Portion of Building No.2,
Old bearing No.1/1,
Nanjundappa Garden,
Jeevanahalli, Cox Town,
Bangalore - 560 005. ... Appellant
(By Smt.Jyothi.B.Kangokar, Advocate)
AND:
Smt.Vajramartha,
W/o Thirupal.M.K,
Aged about 47 years,
R/at No.2, (old property bearing No.1/1)
Nanjundappa Garden,
Jeevanahalli, Cox Town,
Bangalore - 560 005. ... Respondent
(By Sri H.N.Venkatesh, Advocate for C/R)
This RFA is filed under Section 96 CPC, against the
judgment and decree dated 16.10.2012 passed in
OS.No.4282/2009 on the file of the XII-Adll. City Civil and
Sessions Judge, Bangalore, decreeing the suit for ejectment
and etc.
These RFAs, coming on for orders, this day, the Court
delivered the following:
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JUDGMENT
These appeals are directed against the common judgment, dated 16.10.2012 passed by the Court of the XII Additional City Civil Judge, Bangalore in O.S.Nos.4282, 4283 and 4284 of 2009.
2. The facts of the case in brief are that the respondent
- plaintiff purchased the suit schedule 'A' property by a registered sale deed, dated 14.08.2001 from the legal heirs (sons) of the erstwhile owner late Muniswamy. It is the further case of the respondent - plaintiff that the appellants were paying the rent to her power of attorney holder, Mr.Krishnappa. The daughters of said Muniswamy filed O.S.No.2673/2003 seeking partition and declaration that the sale deed, dated 14.08.2001 executed by their brothers is not binding on them. The respondent was the defendant No.3 in the said suit. The said suit proceedings culminated in the compromise whereunder the daughters of Muniswamy recognized the respondent as the absolute owner of the suit schedule property. All the three appellants were examined as 5 the witnesses for the plaintiffs in O.S.No.2673/2003 and they testified that they are the tenants in three portions of the suit schedule 'A' property.
3. As the appellants were not heeding the request of the respondent - plaintiff for vacating the suit schedule 'B' property on one or the other pretext, she was constrained to have the notice issued for terminating the tenancy and thereafter to file the three suits.
4. Apprehending that the respondent - plaintiff may evict the appellants forcibly, they (the appellants) filed O.S.Nos.1591, 1592 and 1593 of 2009 for the relief of injunction simplicitor. They came to be disposed of on 24.8.2009 based on the memo filed by the respondent - plaintiff that she has already filed the three suits for ejectment against the appellants and that she would not evict them without following the due process of law. 6
5. The appellant - defendants filed the written statement separately denying the ownership of the first respondent. The sum and substance of their defence is that one Shamanna was the absolute owner of the suit schedule 'A' property and that they were the tenants under the said Shamanna. Muniswamy purchased the suit schedule 'A' property from Shamanna by a registered sale deed, dated 25.04.1981. Thereafter the appellants became the tenants under Muniswamy and have been paying the rent to him. On his death on 05.04.1998, his son-in-law Krishnappa and daughter Susheelamma were collecting the rent from the appellants. During the lifetime of Muniswamy, an agreement of sale was executed on 18.03.1992 to sell the portions occupied by the appellants (suit schedule 'B' properties in all the three suits). Muniswamy had received the advance sale consideration of `12,000/- from the defendant in O.S.No.4282/2009, `13,000/- from the defendant in O.S.No.4283/2009 and `15,000/- from the defendant in O.S.No.4283/2009. The balance amounts were to be given at 7 the time of the execution of the sale deed. The appellants have continued to be in possession of the schedule 'B' properties in their capacity as the agreement-holders.
6. Based on the rival pleadings, the Trial court formulated the following issues:
"Issues in O.S.No.4282/2009:
1) Whether the plaintiff proves her title over 'A' schedule property?
2) Whether the plaintiff proves that the defendant is tenant of 'B' schedule property?
3) Whether the plaintiff is entitled for damages/rent at the rate of `500/- per month from 18.1.2009?
4) Whether the defendant proves that he is in occupation of first portion of the house?
5) What order or decree?
Issues in O.S.No.4283/2009:
1) Whether plaintiff proves jural relationship of landlord and tenant between herself and defendant?
2) Whether plaintiff proves that she has duly terminated the tenancy?8
3) Whether plaintiff is entitled for damages as prayed for?
4) What order or decree?
Issues in O.S.No.4284/2009:
1) Whether plaintiff proves jural relationship of landlord and tenant between herself and defendant?
2) Whether plaintiff proves that she has duly terminated the tenancy?
3) Whether plaintiff is entitled for damages as prayed for?
4) What order or decree?"
7. The respondent - plaintiff got herself examined as PW1 marking the documents at Exhibits P1 to P22. The defendant in O.S.No.4284/2009 is examined as DW1 marking the documents at Exhibits D1 to D5. The defendants in the other two suits did not adduce the evidence. Considering the pleadings, oral and documentary evidence placed on its record, the Trial Court answered the contentious issues in favour of the respondent - plaintiff and decreed the three suits by passing the common judgment directing the 9 appellant - defendants to hand over the vacant possession of the suit schedule premises to the respondent - plaintiff. The appellant - defendants are further directed to pay damages @ `500/- per month from 19.1.2009 till they hand over the vacant possession. Aggrieved by the said judgment, the defendants have preferred these appeals.
8. Ms.Jyothi B.Kangokar, the learned counsel for the appellants submits that the Trial Court has not given any weightage to the public notice, which is published in the 'Times of India' issue, dated 23.4.1992 (Exhibit D3). The said notice informs the public that the appellants have entered into the sale agreement in respect of the properties in question with Muniswamy. The notice further states that anybody entering into fresh agreement pertaining to said properties shall be doing so at his own risk and cost.
9. The learned counsel submits that the sale deed executed in favour of the respondent - plaintiff is a fraudulent document. She submits that M.Rajanna, who is shown as 10 first vendor in the sale deed is not even the son of erstwhile owner B.Muniswamy. The genealogical tree, which is produced as document No.3 along with I.A.No.1/2014 shows the names of Narasamma, Narasimha, Lakshmamma, Susheelamma, Manjula, Srinivas, Papamma, Rami and Lakshmi. She submits that the balance payment of the sale consideration as shown in the sale deed is also not believable. She contends that no consideration is passed on to the L.R.s of Muniswamy from whom the respondent - plaintiff claims to have purchased the suit schedule 'A' property.
10. She also submits that she has filed I.A.No.1/2014 on 16.1.2014 for the production of additional evidence by invoking Order 41 Rule 27 of the CPC. With the said I.A. she has produced (i) the legal notice, dated 26.9.2012 issued on behalf of one of the appellants to the L.R.s of late Muniswamy
(ii) reply issued on behalf of Srinivas, one of the L.R.s of Muniswamy (iii) the genealogical tree of Muniswamy's family. As these documents were not in existence when the suit was pending, they could not be produced at the time of the suit 11 proceedings. She submits that the legal notice, dated 26.9.2012 (document No.1 produced along with I.A.No.1/2014) sent on behalf of the appellant in R.F.A.No.128/2013 to the L.R.s of late Muniswamy and the reply, dated 8.10.2012 (document No.2 with the said I.A.). In the said reply Sri Srinivas, one of the sons of late Muniswamy states that he needs the premises in question for his bonafide use and occupation. She submits that the said Srinivas has not whispered about the execution of the sale deed in favour of the respondent - plaintiff.
11. Nextly, she submits that she has filed I.A.No.2/2014 on 20.1.2014 for the production of additional evidence by invoking Order 41 Rule 27 of CPC. She submits that with the said I.A. the appellants have produced the true copies of money orders evidencing the payment of balance sale consideration. The learned counsel also brings to my notice I.A.No.3/2014 seeking the permission to call the said Srinivas, shown as one of the vendors in the sale deed, dated 14.08.2001, to give evidence.
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12. Sri H.N.Venkatesh, the learned counsel for the respondent - plaintiff submits that the Trial Court's judgment is passed on proper appreciation of evidence. As the order is not perverse, it does not call for any interference. He submits that the documents at Ex.P9 to Ex.P11 show that the appellant's tenancy is validly terminated.
13. He submits that the appellants would not have kept quiet from 1992 till now, if the sale agreement, dated 18.3.1992 were true. The appellants would have taken action to enforce the same. He submits that the appellants have deposed in O.S.No.2673/2003 that they are the tenants in respect of the portions of the properties in question. There is no whisper of sale agreement in their favour when they deposed before the Court in O.S.No.2673/2003. He submits that it is the appellant - defendants, who instigated the daughters of Muniswamy to file O.S.No.2673/2003 against the sons of Muniswamy only to perpetuate their tenancy and occupation of the premises in question.
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14. The learned counsel submits that the legal notice, dated 26.9.2012 (document No.1 with I.A.No.1/2014) is issued to a dead person - Rajappa. The learned counsel submits that the said Rajappa died on 29.4.2005 itself. He submits that the appellant - defendants have not taken the plea in their written statement that said Rajappa is not the son of late Muniswamy. That Rajappa is not the son of Muniswamy is an afterthought. He submits that the money orders produced as document No.1 with I.A.No.2/2014 are actually towards the payment of rent. He submits that they are referred to as Ex.P20 to Ex.P25 in the evidence of Sri A.C.Susairajan, the appellant in R.F.A.No.129/2013, Ex.P12 to Ex.P17 in the evidence of Sri Issac, the appellant in R.F.A.No.128/2013, Ex.P6 to Ex.P11 in the evidence of Sri J.Jayaraj, the appellant in R.F.A.No.127/2013 in O.S.No.2673/2003. The depositions of the said appellants in O.S.No.2673/2003 are marked as Exs.P16, 17 and 18 in O.S.No.4282/2009.
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15. He submits that the contrary contentions are being raised by the appellant only to harass the land-owner. The proceedings are being dragged on by the appellants only with a view to perpetuate their stay in the premises in question. He submits that the validity of a registered document cannot be assailed in some other proceedings and that too without raising the challenge to the registered documents.
16. Ms.Jyothi B.Kangokar, in the course of her rejoinder, submits that the appellants are protected by the proviso of Section 53-A of the Transfer of Property Act, 1882. She submits that the very fact that the respondent - plaintiff did not act upon the sale deed at Ex.P1 shows that it is a fraudulent document. Although the sale deed is stated to have been executed in 2001, the khatha, etc. (Ex.P2 to P13) were not mutated in favour of the respondent - plaintiff till 2008. As the appellant - defendants are residing in the premises in question in their capacity as the agreement- holders, they are not liable to be vacated, so submits the learned counsel. She prays for the allowing of the I.A.s for the 15 production of additional evidence and for the re-opening of the case by remanding the matter to the Trial Court.
17. Sri Venkatesh submits that the delay in getting the mutation effected is on account of the pendency of the partition suit filed by the sisters of the respondent's vendors.
18. The submissions of the learned counsel have received my thoughtful consideration. I have browsed through the L.C.Rs. The appellant - defendants claim to be the sale agreement-holders. They claim that Muniswamy executed the sale agreement in their favour on 18.3.1992. No cogent explanation is forthcoming as to why the appellant - defendants did not file any suit for the enforcement of the said agreement. Further on coming to know of the execution of the registered sale deed, dated 14.8.2001 (Ex.P1), the appellant - defendants have not raised any challenge to the same. They have not filed any suit seeking the relief of declaration that the said sale deed is null and void. Nor they 16 have filed any suit seeking the relief that they be declared as the owners of the suit schedule 'A' property.
19. In O.S.No.2673/2003, all the three appellant - defendants are examined as PW2, PW3 and PW4. Their depositions are marked as Ex.P16 to Ex.P18. They have made the following identical statements in paragraph No.5 of their affidavit filed by way of chief-examination:
"It is submitted that, I am still residing in the portion of the suit schedule premises as a tenant and paying the monthly rents to Sri M.Krishnappa, who is the GPA holder for plaintiffs."
20. As held by the Rajasthan High Court in the case of GOPI KISHAN v. BAJRANG LAL AND ANOTHER reported in 1996 (2) WLC 585 it is settled principle of law that a fact admitted need not be proved as contemplated under Section 58 of the Indian Evidence Act. Ordinarily a Court has to try the lis between the parties at which they are in variance and not on those points which they have admitted. The Rajasthan High Court in the case of MAHAVEER UCHCHYA 17 PRATHMIK VIDYALAYA, SARDAR SHAHAR v. BABU LAL reported in 1996 (3) WLC 65 has held that the admitted facts need not be proved.
21. It is useful to refer to this Court's decision in the case of GOWDARA SHIVALINGAPPA v. K.GAJENDRAPPA reported in 2010(2) KLJ 380, wherein this Court upheld the decreeing of the suit for the recovery of the possession of the leased property on the basis of the admission made earlier by the tenant before the Rent Court that the suit premises used for commercial purpose had plinth area exceeding 14 sq.mts. and that the Rent Court had no jurisdiction to entertain the eviction petition. Such an admission made by the tenant binds him; he cannot be permitted to resile therefrom by raising the issue of maintainability of the suit, subsequently filed by the landlord for the recovery of possession after withdrawing the eviction petition from the Rent Court. Para 6 of the said judgment is extracted hereinbelow:
"6. In the above facts and circumstances, the question whether the suit premises measured more 18 than 14 square metres, could not have been made an issue in view of the admission by the respondent in the objection statement, which is a formal document filed before a Court of law and the tenor of Order 12, Rule 6 of the Code of Civil Procedure, 1908, which indicates that, where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, makes such order or give such judgment as it may think fit, having regard to such admissions, would apply insofar as the admission that the suit property measured more than 14 square metres and therefore, the First Appellate Court was not justified in opening up an avenue which was closed to the respondent and hence the First Appellate Court was not justified in doing so. Further, the observation of the First Appellate Court that leave ought to have been obtained in the eviction petition while withdrawing the same, in order to file a fresh suit, was also not tenable. The same was not a civil suit in which the appellant was obliged to seek such permission. There was no bar in withdrawing the said eviction petition, since the appellant apparently realised that since the property was admittedly more than 14 square metres, the provisions of the Act did not apply and the eviction 19 proceedings were a futile exercise. Hence, the findings of the First Appellate Court that the property measured more than 14 square metres, on the footing that the appellant had not established the same is incorrect. Therefore, the substantial questions of law framed are answered in favour of the appellant."
22. It is trite position in law that the admissions made in the documents are on the higher footing compared to the evidentiary admissions. In this regard, it is helpful to refer to the Apex Court's judgment in the case of NAGINDAS RAMDAS v. DALPATRAM ICCHARAM ALIAS BRIJRAM AND OTHERS, reported in AIR 1974 SC 471. The relevant portion of the said judgment is extracted hereinbelow:
"26.......... Admissions, if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary 20 admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong."
23. In view of the candid admissions made by the appellant - defendants in O.S.No.2673/2003 and in the light of the judgments to which the references are made hereinabove, it is difficult to accede to the claim of the appellant - defendants that they are in possession of the suit schedule 'B' property in their capacity as the agreement- holders.
24. There is no foundation in the pleadings for raising the argument that Rajappa (Rajanna) is not the son of Muniswamy. Otherwise also, it is not advisable to deliver any finding as to whether Rajappa is one of the sons and L.Rs of Muniswamy, as he is dead and as L.R.s are not made parties to these proceedings.
25. I.A.No.3/2013 is filed for the production of order sheet in O.S.No.10316/1997, plaint and memo filed therein. The relevance of these documents for the resolution of the lis 21 in question is not stated. Besides, the affidavit filed in support of the said I.A. does not contain the averment that despite the exercise of due diligence, those documents could not be produced earlier, which is the necessary requirement as per Order 41 Rule 27 of C.P.C.. Similarly, the affidavit filed in support of the said I.A.No.1/2014 also does not contain the averment that despite the exercise of due diligence by the appellants' side, it could not produce the documents. Besides those documents could be of some use, if the appellant - defendants propose to initiate any legal proceedings. Party No.1 to whom the notice at document No.1 is sent - Rajappa is dead, as the notice itself discloses. I.A.No.2/2014 is filed for the purpose of producing the money orders sent - `120, `240, `240, `120, `240, `240. It is hard to believe that these small denominations are sent towards the payment of the balance sale consideration.
26. I.A.No.3/2014 is filed seeking the permission to examine Srinivas, one of the vendors of the suit schedule 'A' property to the respondent - plaintiff. Nothing prevented the 22 appellant - defendants from taking out the suit summons to him during the pendency of the suit.
27. For all the aforesaid reasons, all the said I.A.s are dismissed. Not finding any merit in these appeals, I dismiss these appeals. No order as to costs.
28. It is made clear that the appellant - defendants may exercise the liberty of filing a duly constituted suit for assailing the sale deed executed in favour of the respondent - plaintiff and/or seek the relief of the specific performance of the agreement, which is claimed to have been executed in favour of the appellant - defendants, if they have it in law. If they file one such suit, it shall also be open to the defendants to raise such objections, as are tenable in law including the point of limitation.
29. Should the suit be filed by the appellant - defendants, the same shall be adjudicated independently of and uninfluenced by the Trial Court's judgment in 23 O.S.Nos.4282, 4283 and 4284 of 2009 and its confirmation by this Court in these appeals.
30. Three months' time is granted to the appellant - defendants to vacate the suit schedule 'B' properties.
Sd/-
JUDGE Cm/VGR/MD