Bangalore District Court
N.Ravi Prathap vs Sumithra K.Potnis on 1 April, 2015
IN THE COURT OF THE XLI ADDL.CITY CIVIL JUDGE
AT BANGALORE [CCH.No.42]
PRESENT: SRI.V.S.DHARWADKAR, B.Com., L.L.B.,(Spl)
XLI Addl. City Civil Judge
Dated this the 1st day of April 2015.
O.S.No.5299/2013
PLAINTIFF/S : N.Ravi Prathap,
S/o Late R.N.Nanjundappa,
45 years,
R/at portion of I Floor
of the property bearing No.92,
93, 94 and 95
8th cross, Malleswaram,
Bangalore.
(By Sri.SRB., Advocate)
V/s.
DEFENDANT/S : Sumithra K.Potnis,
D/o Late Krishna Rao Potnis,
63 years,
R/at portion of the II Floor,
Of the property bearing
No.92, 93, 94 and 95,
8th cross, Malleswaram,
Bangalore.
(By Sri.SVB, Advocate)
2 O.S.No.5299/2013
Date of Institution of the 20.07.2013
Suit:
Nature of the suit
(Suit on Pronote, suit for Money suit
declaration & possession,
suit for injunction)
Date of commencement of
recording of evidence:
Date on which the 01.04.2015
Judgment was
pronounced:
Total Duration: Year/s Month/s Day/s
01 07 12
JUDGMENT
The plaintiff has filed this suit for the recovery of Rs.1,98,000/- from the defendant with interest at 12% per annum from the date of suit till realization.
2. The plaint averments in brief is as under:
That the suit schedule property is a portion of the II Floor of the property bearing No.92, 93, 94 and 95 situated at 8th cross, Malleswaram, Bangalore, consisting of one hall, two bed rooms with attached bath, one kitchen, one dining, bath and toilet. The suit schedule property is bounded by the BBMP property to the east, private property 3 O.S.No.5299/2013 to the west, passage leading to stair case to the north and by a road to the south.
3. The plaintiff claims to be the owner of the suit schedule property by virtue of the Will executed by his father Sri.R.N.Nanjundappa. It is alleged that the defendant was a tenant under the father of the plaintiff and after the death of the plaintiff's father, the defendant has continued to be the tenant of the plaintiff. It is further stated by the plaintiff that there are various other tenants in the said building and the suit schedule property is under the occupation of the defendant as a tenant. It is stated that the defendant is a monthly tenant and she had agreed to pay the rent of Rs.6,000/- per month as per the English calander. It is stated that the plaintiff issued a legal notice to the defendant on 28/11/2012 under section 106 of the Transfer of Property Act terminating the tenancy of the defendant and called upon the defendant to vacate and deliver the vacant possession of the suit schedule property and to pay arrears of rent of Rs.1.5 lakhs. It is stated that 4 O.S.No.5299/2013 the defendant has given reply on 20/12/2012. It is stated by the plaintiff that there is no dispute that the defendant is a tenant of the schedule premises and she was paying rent to the father of the plaintiff and this fact has been admitted by the defendant in her reply given to the legal notice. The plaintiff has relied on the following statement given by the defendant in her notice ;
"My client admits that she was a government servant and worked as Assistant Director, Population Centre and certain rent receipts have been produced. The same were produced only for the purpose of claiming House Rent Allowance benefit and not for the purpose of creating relationship of landlord and tenant between them."
4. It is further stated that the father of the plaintiff had issued receipts to the defendant for having received the rent from the defendant and the defendant has produced the said rent receipts to the government and has claimed the rent allowance. It is further stated by the plaintiff that the defendant is required to pay rent to him from 5 O.S.No.5299/2013 1/10/2010 at the rate of Rs.6,000/- per month and it comes to Rs.1,98,000/-. It is also further stated that the plaintiff has also filed a petition for eviction in S.C.137/2013 and the same is pending for consideration. It is further stated that since the defendant did not pay the rent due to the plaintiff so the plaintiff has filed this suit for the recovery of the aforesaid amount from the defendant.
5. After the suit was filed summons was issued to the defendant for her appearance and in response to it, the defendant has appeared through her counsel and has filed the written statement.
6. The defendant in her written statement has contended that the suit of the plaintiff is false, frivolous, vexatious and is not maintainable in law and it is filed only with a dubious intention of harassing the defendant. It is also contended that the suit of the plaintiff is not maintainable without seeking any declaration of his rights if any under the Will dated 12/8/2010 and the plaintiff has 6 O.S.No.5299/2013 suppressed the filing of the suit in O.S.1932/2010 wherein the defendant has claimed the ownership being the beneficiary under the Will executed by R.N.Nanjundappa and the plaintiff cannot maintain a separate suit for recovery of rent. It is contended that the suit in O.S.1932/2011 and S.C.137/2013 are pending and so this court cannot pass any order till the disposal of those suits. It is contended that this court has no jurisdiction to adjudicate the validity or otherwise of the Will dated 12/8/2010. It is denied that originally R.N.Nanjundappa was the owner of property bearing No.92, 93, 94 and 95 situated at 8th cross, Malleshwaram, Bangalore. It is denied that the defendant was the tenant under R.N.Nanjundappa. It is contended that when the Will itself is in dispute in O.S.1932/2010 the plaintiff cannot claim any right over the said property under the said Will. It is contended that the defendant is also a beneficiary under the Will and she is entitled for life interest in the property. It is repeatedly contended that there is no relationship of landlord and tenant between the plaintiff and the defendant 7 O.S.No.5299/2013 as contemplated under section 116 of the Transfer of Property Act. It is denied that the defendant is liable to pay rents to the plaintiff from 1/10/2010 upto end of June 2013. It is denied that the defendant is a chronic defaulter in payment of the rents. It is admitted that there is no cause of action for the plaintiff to file the suit and so the defendant has prayed for the dismissal of the suit.
7. On the basis of the above pleadings, the following issues been framed:-
ISSUES
1. Whether the plaintiff proves that the defendant has continued to be the tenant under him on a monthly rent of Rs.6,000/- p.m. and he has succeeded to the property of his father by virtue of the Will dated 12/8/2010 ?
2. Whether the plaintiff further proves that his father R.N.Nanjundappa was the owner of the property bearing No.92, 93, 94 and 95 situated in the 8th cross road, Malleshwaram, Bangalore and the defendant was the tenant under him previously ?8 O.S.No.5299/2013
3. Whether the plaintiff is entitled to recover the rent of Rs.1,98,000/- from the defendant with interest at 12% p.a. from the date of suit till realization ?
4. What decree or order ?
8. Thereafter the plaintiff in order to prove the case has examined himself as PW1 and one witness as PW2 and has got marked 27 documents as Ex.P.1 to P27 and has closed the side. The defendant has not lead any evidence on her behalf inspite of granting sufficient time. But Ex.D1 and D2 have been marked on behalf of the defendant by confronting them to the plaintiff.
9. Heard the arguments of the learned counsel for the plaintiff and the learned counsel for the defendant.
10. The learned counsel for the plaintiff during the course of his arguments has relied upon the following decisions:
ILR 2011 KAR 3847 2009(2) KLJ 257 9 O.S.No.5299/2013 2008(4) AIR KAR R101 2004(2) KLJ 317
11. My findings to the above issues are as under:
ISSUE No.1 : In the Negative
ISSUE No.2 : In the Negative
ISSUE No.3 : In the Negative
ISSUE No.4 : As per the final order,
for the following
REASONS
12. ISSUE NO.1 AND 2:- Since both these issues are inter connected and they can be disposed off together so, both these issues are taken up together in order to avoid repetition of facts and evidence.
13. It is the case of the plaintiff that the defendant is a tenant under him on a monthly rent of Rs.6,000/- per month and he has succeeded to the property of his father by virtue of a Will dated 12/8/2010. On the other hand it is the case of the defendant that the validity of the Will itself is challenged and a suit in O.S.1932/11 in respect of the said Will is still pending and unless the said fact is 10 O.S.No.5299/2013 decided the plaintiff cannot claim any ownership over the suit property.
14. It is also the case of the defendant that she is also a beneficiary under the said Will and she has also clearly stated that there is no relationship of landlord and tenant either between her and the father of the plaintiff R.N.Nanjundappa or between her and the plaintiff and there is nothing to show that she had agreed to pay Rs.6,000/- to the plaintiff. So, the defendant has prayed for dismissal of suit.
15. In order to prove the case, the plaintiff has examined himself as PW1 and has also examined one witness as PW2 and has got marked 27 documents at Ex.P.1 to P27 and has closed the side. PW1 in his evidence cum affidavit has reiterated the plaint averments. But in the cross examination he has admitted that there is no order from any court holding that the defendant is a tenant of his father but he volunteers that the ejectment suit in 11 O.S.No.5299/2013 S.C.C.137/2013 is pending before SCC-18 and it was filed earlier to this suit. He also admits that in S.C.C No.137/2013 he has not sought any permission from the court to file a separate suit for the recovery of arrears of rent. He has admitted the deposition in S.C.C.137/2013 shown to him and the said document has been marked at Ex.D1. Since it was confronted by the defendant's counsel to the witness and it was admitted by the witness.
16. Further PW1 says that he has not obtained any Probate and Succession Certificate in respect of Ex.P.5 and he has also admitted that the present defendant has challenged Ex.P.P5 in O.S.1932/2011 and he volunteers that it is done only to give trouble to him. He admits that in Ex.P.6 there is no mention that the defendant is a tenant under him and under his father. He has denied that he has no right to claim any arrears of rent from the defendant. He has further stated that his father was aged 82 years at the time of his death and he was putting his signature in English. He denies that at the time of his 12 O.S.No.5299/2013 death his father was residing with the defendant and she was taking care of him. It is also denied that the hospital expenses were borne by the defendant. It is also denied that in order to harass the defendant he has filed a false suit against the defendant.
17. He has denied that there was no any impediment for him to claim arrears in rent in S.C.C.137/2013. He has denied that the defendant is not his tenant at any time and he has denied that he has produced false documents before the court. He has admitted the passing of judgment in S.C.137/2013 dated 28/10/2014 and he has identified the certified copy of the judgment when it was confronted to him by the counsel for the defendant and the said document has been marked on Ex.D2.
18. Now if we look to the evidence of PW2 Prakash who is working as FDA in the Population Centre, Malleshwaram, he has produced two rent receipts at 13 O.S.No.5299/2013 Ex.P.18 and 19 and has also produced authorization of the letters and the salary details of Sumithra K.Potnis, i.e., defendant and also income tax assessment statement for the calculation of income tax for the year 2001-02 at Ex.P.27. But in the cross examination he admits that every government servant is entitled for HRA if he is residing either in his own house or in a rented house. He admits that there will be no difference in the HRA for a person occupying his own house and a person occupying a rented house. He says that he do not know whether HRA will differ according to the rent receipt or not.
19. Now if we look to the documents that are produced by the plaintiff, the plaintiff has produced the office copy of the notice issued at Ex.P.1 and in the said notice he has stated that the defendant is a tenant and she is required to pay rent of Rs.6,000/- per month and he has also asked her to pay an amount of Rs.1,50,000/- Ex.P.2 is the reply given by the defendant and in the said reply also she has clearly stated that she is not a tenant and the 14 O.S.No.5299/2013 plaintiff is not the landlord and so the question of paying rent or paying arrears of rent to the tune of Rs.1,50,000/- does not arise at all and the counsel for the defendant has further stated as under in the said reply - Ex.P.2:
"My client admits that she was a government servant and worked as Assistant Director, Population Centre and certain rent receipts have been produced. The same were produced only for the purpose of claiming house rent allowance benefit and not for the purpose of creating relationship of landlord and tenant between them. She states that since she is not the tenant in respect of the premises, question of paying any rent and that your client is not at all entitled for any right in any capacity as claimed by in the notice. My client further states that the Will being relied on by your client is a concocted and fraudulent Will and is under challenge."
20. The learned counsel for the plaintiff during the course of his argument laid more stress on this alleged admission given by the defendant in her notice. But it may be noted that when the plaintiff has filed this suit, then he 15 O.S.No.5299/2013 has to prove his own case and he cannot depend on the weakness of the other side and it is well settled law that the plaintiff has to stand on his own legs and he cannot take the weakness of the other side. The Plaintiff has not produced a single piece of document to show that the defendant was the tenant and she had agreed to pay Rs.6,000/- to him.
21. Merely because some statement is given in Ex.P.2 it does not mean that the defendant has admitted that she is a tenant of the plaintiff and she had agreed to pay rent of Rs.6,000/- per month. If we look to said Ex.P.2 she has no where stated that she is the tenant under R.N.Nanjundappa and also under the plaintiff. On the other hand she has specifically denied that she is the tenant and that there is a landlord and tenant relationship between the plaintiff and the plaintiff's father on one hand and the defendant on the other hand. So the statement given in Ex.P.2 will not be of any help to the plaintiff in proving that the defendant is a tenant and that she had 16 O.S.No.5299/2013 under taken to pay rent of Rs.6,000/- per month. Now if we look to Ex.P.3 it is the cancellation of the Will alleged to have been done by R.N.Nanjundappa on 12/8/2010.
22. It is only stated in the said Ex.P.3 that he has voluntarily cancelled the Will No.43/2009-10 dated 24/6/2009. No details of the said Will dated 24/6/2009 are forthcoming. Now if we look to Ex.P.4 it is only postal receipt and postal acknowledgment. If we look to Ex.P.5 it is a Will under which plaintiff is claiming his rights. It is clearly stated in the said Will at para No.4 as under:
"Ms.Sumithra K.Potnis, daughter of K.Krishna Rao Potnis, aged about 60 years is a spinster is staying with me in the second floor of Malleshwaram building along with my first son N.Ravi Pratap. I have received certain amount as advance from my present tenants and rent that I am collecting from schedule "A" property. I am giving it to Ms.Sumithra K.Potnis where she has to spend that money to me whenever I am hospitalized till my death. After my death, Ms.Sumithra K.Potnis can live along with my 17 O.S.No.5299/2013 first son N.Ravi Pratap in Malleshwaram, if she wish."
23. So if at all the version of the plaintiff that the defendant was the tenant was true then in Ex.P.5 R.N.Nanjundappa should have mentioned about the same specifically. On the other hand he speaks of receiving rents from other tenants but he does not speak anything regarding receiving of the rent from the present defendant and he has given the right of residence to her under the said Will. Ex.P.6 is the information sought by the plaintiff from the health department and there also there is nothing to show that the defendant was a tenant under the plaintiff's father or the plaintiff and she was paying rent of Rs.6,000/- per month to the plaintiff's father or to the plaintiff. Even the other documents that are secured from the health department also do not in any way show that the defendant is the tenant under the plaintiff or his father. Ex.P.7 to 14 are the katha extracts and katha certificates showing the name of the plaintiff as the owner of the property bearing No.92. Ex.P.15 to 17 are the judgments 18 O.S.No.5299/2013 pertaining to other tenants. Ex.P.18 and 19 are the rent receipts alleged to have been given to the defendant and the amount shown is Rs.2,500/-. Ex.P.19 is dated 10/8/2001 and Ex.P.18 is dated 10/2/2002. Mere production of two rent receipts by the plaintiff is not sufficient to hold that there is a landlord and tenant relationship between the plaintiff and the defendant and that the defendant had agreed to pay rent of Rs.6,000/-.
24. The other documents that are produced by the plaintiff also do not in any way help the plaintiff. Now if we look to Ex.D1 it is the certified copy of the evidence given by the present plaintiff in SC No.137/2013 and in the cross examination in that case the present PW1 has stated that he is residing in the Malleshwaram house since 3-4 years and he has stated that the rental agreement is with the owner. He has admitted that the property was previously belonging Gayathridevi who is the first wife of his father and after the death of Gayathridevi the property has come to his father Nanjundappa. He has further admitted that 19 O.S.No.5299/2013 he has no document to show that the defendant is residing in the first floor of property No.95. He has further clearly admitted that there is no rental agreement between Nanjundappa and the present defendant Sumitradevi.
25. He has also admitted that in the assessment extract also the name of the present defendant has not been shown as the tenant. Now if we look to Ex.D1 it becomes clear that this PW1 has clearly admitted that there is no rental agreement in between his father and the present defendant to show that the defendant was the tenant under his father. Ex.D2 is the certified copy of the judgment in S.C.137/2013 which was a suit filed for the ejectment and mesne profits and that suit has also been dismissed by the court. So by looking to the materials that are placed before me it becomes clear that there is nothing to show that the defendant is a tenant under the plaintiff and she had agreed to pay rent of Rs.6,000/- per month to the plaintiff and at this juncture there is also no material to show that the plaintiff has succeeded to his father by virtue 20 O.S.No.5299/2013 of the Will dated 12/8/2009 because the Will is required to be proved.
26. So under such circumstances even if there is no evidence on the part of the defendant but the evidence produced by the plaintiff itself is insufficient to hold that the plaintiff has proved that the defendant has continued to be the tenant under him on monthly rent of Rs.6,000/- and he has succeeded to his father's property by virtue of Will dated 12/8/2010. Even though the learned counsel for the plaintiff has relied upon the ruling reported in
1. ILR 2011 KAR 3847 (Smt.Mahanth Kumari and Another V/s. Sri. S.Vijaya Kumar) A) CODE OF CIVIL PROCEDURE, 1908 - ORDER 12 RULE 6- Judgment on Admissions-Object of the provision
- The words Admissions of fact have been made either in the pleading "or otherwise"-Interpretation of - HELD, The object of the rule is to enable a party to obtain the speedy judgment.
"The ambit of the rule is wide enough. The words 'or otherwise' clearly indicate that it is open to the Court to base its judgment on the statements made by a party not only in the pleadings but also dehors the 21 O.S.No.5299/2013 pleadings. Admission is the best form of evidence, unless it is shown to be incorrect or explained away.
2. 2009(2) Kar. L.J. 257 (G.Kaluram V/s. K.G.Shivashankar) KARNATAKA RENT ACT, 1999, Section 27(2)(a) and (r) and 43- Indian Evidence Act, 1872, Section 116- Eviction - Suit for - Tenant, though admitting his tenancy under landlord since deceased, denying son's title to leased property claimed on basis of registered will stated to have been executed by deceased landlord, son's right to maintain eviction suit-Tenant's claim that he had paid rent to other son of deceased landlord, and after death of other son, to his wife as legal representative, not proved by impleading legal representative to suit as necessary party - Tenant cannot question validity of will, when other legal representatives of deceased testator have not questioned same -0 His denial of landlord's title, held, was not bona fide - No interference with decree of eviction is called for in view of fact that presumption arising from landlord's claim that suit premises were bona fide required for his own occupation, stood unrebutted.
22 O.S.No.5299/2013
3. 2008(4) AIR Kar R 101 (G.Kaluram V/s.
K.G.Shivashankar) (A) Karnataka Rent Act, (34 of 2001) Ss. 27, 43- Eviction petition-
Filed by son of deceased landlord on basis of will executed in his favour -
petitioner tenant under deceased landlord cannot question validity of will
- petitioner admits his relationship as that of tenant with deceased landlord cannot dispute his status of tenant under son of deceased landlord-Tenant has no right to question title of property - Tenant cannot question right of son to maintain eviction petition against him - Question of adornment or production of lease deed by son to prove existing relationship does not arise.
But these rulings are not helpful to the plaintiff in proving his case. Hence, by looking to the materials that are placed before me, I answer this issue in the Negative and against the plaintiff and at the same time I am also constrained to hold that the plaintiff has failed to prove that the defendant was the tenant under R.N.Nanjundappa and also under him. Hence I answer both point No.1 and 2 in the Negative and against the plaintiff. 23 O.S.No.5299/2013
27. Issue No.3: The plaintiff in his plaint has claimed rent of Rs.98,000/- from the defendant with interest at 12% per annum from the date of suit till realization. In order to prove the case, the plaintiff has examined himself as PW1 and one witness as PW2 and has got marked 27 documents and has closed his side. The learned counsel for the plaintiff during the course of his argument argued that he has produced the income tax returns, of the defendant in order to show that the rent is due from the defendant. But on careful perusal of the entire oral evidence of PW1 and 2 and the documents produced by the plaintiff it becomes clear that no document is produced by the plaintiff to show that there is a landlord and tenant relationship between the plaintiff's father and the plaintiff on the one hand and the defendant on the other. So when there is no material to show that the defendant had agreed to pay rent of Rs.6,000/- per month to the plaintiff and that she is the tenant of the plaintiff then under such circumstances I am unable to hold that the plaintiff is entitled to recover the rent of Rs.1,98,000/- 24 O.S.No.5299/2013 from the defendant with interest at 12% per annum from the date of suit till realization. Accordingly I answer issue No.3 in the Negative and against the plaintiff.
28. Issue No.4: After having answered the Issue No.1 to 3 in the negative and against the plaintiff, I hold that there is no merit in the suit filed by the plaintiff and it is fit to be dismissed with cost of Rs.1,000/-. In the result, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby dismissed with cost of Rs.1,000/-.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcript thereof, is corrected and then pronounced by me in the open court on this the 1st day of April 2015).
(V.S.DHARWADKAR) XLI Addl. City Civil Judge Bangalore 25 O.S.No.5299/2013 ANNEXURE I. List of witnesses examined on behalf of :
a) Plaintiff's side:
P.W.1 N.Ravi Prathap
P.W.2 Prakash
b) Defendant's side:
R.W.1 Sumithra K.Potnis
II. List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P.1 Copy of legal notice
Ex.P.2 Certified copy of reply given by
defendant
Ex.P.3 Certified copy of cancellation of Will
dated 12/8/2010
Ex.P.4 Certified copy of postal acknowledgment
and postal receipt
Ex.P.5 Certified copy of Will dated 12/8/2010
Ex.P.6 Certified copy of document to show that
the defendant was a tenant
Ex.P.7,8 Certified copy of katha certificates
Ex.P.9-12 4 certified copies of katha extracts
Ex.P.13 Khatha certificates
Ex.P.14 Certified copy of katha certificates
Ex.P.15 Certified copy of judgment in
S.C.2093/2011
Ex.P.16 Certified copy of judgment in
S.C.2095/2011
Ex.P.17 Certified copy of judgment in
S.C.2096/2011
Ex.P.18,19 Two rent receipts
Ex.P.20 Authorization given by Director
Ex.P.21 Letter given by Health & Family Welfare
26 O.S.No.5299/2013
Department
Ex.P.22,23 Originals
Ex.P.24 Documents of HRA benefits
Ex.P.25 Attested copies of Salary details of
Sumithra K.Potnis
Ex.P.26 Attested copy of income tax assessment
statement
Ex.P.27 Attested copy of calculation of income
tax
b) defendants side : - NIL -
Ex.R.1 Certified copy of deposition of PW1 in
S.C.137/2013
Ex.R.2 Certified copy of judgment in
S.C.137/2013
XLI ADDL.CITY CIVIL JUDGE
BANGALORE
27 O.S.No.5299/2013
19.03.2015:
P - MVS
D - VSR
D1(a)to(c): Expt.
Judgment.
Judgment pronounced in Open Court vide separate order.
ORDER XLI Addl. City Civil Judge Bangalore 28 O.S.No.5299/2013