Bangalore District Court
Smt.Sumitra K.Potnis vs Sri.S.Srinivas on 26 March, 2021
1 O.S.492/2014
IN THE COURT OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE
AT BANGALORE CITY - CCH NO.23.
DATED THIS THE 26 th DAY OF MARCH, 2021.
PRESIDING OFFICER
PRESENT : Sri.Mohan Prabhu,
M.A., L.LM.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
O.S.No.492/2014
PLAINTIFF/S: Smt.Sumitra K.Potnis,
D/o Krishna Rao,
Aged about 64 years,
R/at No.92, 93, 94 & 95,
2 nd Floor, 8 th cross,
Malleswaram,
Bangalore - 560 003.
(By Sri.SVB, Advocate)
Vs.
DEFENDANT/S: 1. Sri.S.Srinivas,
S/o Sri. Santhoji Rao,
Aged about 45 years
R/at No.92, Ground floor,
Gayatri Nilaya,
2 O.S.492/2014
8 th cross, Malleswaram,
Bangalore - 03.
2. Sri.N.Ravi Prathap
S/o late Sri.R.N.Nanjundappa,
Aged about 48 years,
R/at property bearing
No. 92, 93, 94 & 95, 1 st floor,
8 th cross Malleswaram,
Bangalore 560 003.
(D1 - By Sri.AN, Advocate
D2 - By Sri.RBS, Advocate)
* * * * *
Date of institution of suit : 17.01.2014
Nature of suit : Ejectment
Date of commencement
of recording of evidence : 23.07.2018
Date on which the judgment
was pronounced : 26.03.2021
Duration of the suit :Year/s Month/s Day/s
07 02 09
3 O.S.492/2014
JUDGMENT
1. The plaintiff has filed this suit praying to pass the decree for ejectment of defendant from the suit schedule property and to pass a decree directing the defendant to pay a sum of Rs.95,000/- being arrears of rent from August 2012 upto 30.3.2013 at Rs.5,000/- per month and from April 2013 to September 2013 at Rs.5,500/- per month and from 1 st October 2013 upto the date of filing of the suit, damages for unauthorised occupation from 30.9.2013 towards tentatively valued at Rs.5,500/- per month along with future interest at the rate of 18% per annum from the date of suit till the date of payment and also prays to direct enquiry with regard to future mesne profit.
4 O.S.492/2014
2. Initially the suit was filed only against defendant No. 1. Defendant No. 2 impleaded in this suit as his I.A.No.1 filed under Order 1 Rule 10 r/w 151 of C.P.C. came to be allowed.
3. The suit schedule property is the property bearing No. 98 situated at 8 th cross, Malleswaram, Bangalore - 560 003, measuring 9 feet x 15 feet bounded towards east by Bharathraj Jains tenaments, west by T.Narasimaiah's property, north by portion of the plaintiff's property No. 95 and south by road.
4. The plaint averments briefly stated as follows:
The plaintiff is the beneficial owner in possession and enjoyment of the property bearing No. 92, 93, 94 and 95 situated at 8 th cross, Malleswaram, measuring east to west 30 feet and north to south 54 feet and 5 O.S.492/2014 consisting of ground, 1 st and 2 nd floor. The plaintiff has produced the certified copy of the 'Will' dated 24.6.2009. The defendant is the tenant of the suit schedule property measuring 9 feet x 15 feet under the plaintiff and on 1.4.2011 the 1 st defendant has entered into a fresh lease agreement with the plaintiff agreeing to pay enhanced rent of Rs.5,000/- per month. Prior to that also the 1 st defendant was the tenant of the schedule premises under the previous owner R.N.Nanjundappa. The lease agreement is initially for 11 months which can be extended for a further period of two years. The 1 st defendant has agreed to pay 10% enhancement in the rent for every two years. He has also agreed that if he defaults in paying the rents consecutively for a period of two months is liable to be evicted. The 1 st defendant was paying rents by 6 O.S.492/2014 cheques as well as by way of cash and was taking the receipt from the plaintiff. The defendant has paid rent upto August 2012. Thereafter he failed to pay the same despite of several oral requests. Though the suit schedule shop were leased to the defendant for the purpose of condiments only, he started preparing condiments in the schedule premises. It was emitting lot of smell and smoke in the area and was also affecting the schedule building. Even the neighbours have objected for the same. Hence the plaintiff requested the 1 st defendant to stop frying of vegetables and other items in the schedule premises. Since the plaintiff objected for the same the 1 st defendant stopped paying rent since August 2012. Despite of repeated request the 1 st defendant failed to pay the rent, hence the plaintiff has got issued legal notice 7 O.S.492/2014 dated 23.8.2013 calling upon the 1 st defendant to pay the arrears of rent of Rs.57,000/- and also terminated the tenancy and sought for vacation of the schedule premises. The 1 st defendant has given an untenable reply contending that he is not the tenant, etc. which is contrary to the lease agreement and payment of rent. The defendant and four other tenants under the plaintiff have filed the suit before this court in O.S.No.2147/2011 for permanent injunction and other relief against this plaintiff and two other persons. The defendant herein has categorically stated in the plaint that he is the tenant under the plaintiff. The 1 st defendant being the tenant has no right whatsoever in withholding payment of rent. The tenancy is monthly tenancy and has been validly terminated by the plaintiff with effect from 20.8.2013. The occupation of 8 O.S.492/2014 the 1 st defendant with effect from 30.9.2013 is unlawful and unauthorised. Hence on these grounds the plaintiff prayed to decree the suit.
5. The 1 st defendant who entered appearance by engaging counsel resisted the claim of the plaintiff by filing his written statement by contending that he is not the tenant of the schedule premises and there is no jural relationship of landlord and tenant between the plaintiff and this defendant. It is contended that since he is not the tenant of the premises, therefore the question of terminating his tenancy as required under section 106 of T.P.Act does not arise. This defendant got issued suitable reply dated 25.9.2013 wherein it was made clear that this defendant is not the tenant of the premises and that the plaintiff is not the landlord of the premises. The landlord N.Ravi Prathap S/o 9 O.S.492/2014 R.N.Nanjundappa had filed the suit against the tenant by name Ashok.S. Mohan Rao and in the said suit this defendant represented the tenant Ashok.S. Mohan Rao as Power of Attorney holder. Ashok.S. Mohan Rao is the brother of this defendant. The suit filed by N.Ravi Prathap in S.C.No.2094/2011 was decreed and the tenant Ashok.S. Mohan Rao has given time upto the end of December 2014 to vacate and deliver vacant possession of the suit schedule premises which is in the occupation of Ashok.S. Mohan Rao. In fact the tenant by name Ashok.S. Mohan Rao has agreed to pay enhancement at the rate of Rs.7,000/- per month to the landlord N.Ravi Prathap. Hence the plaintiff herein cannot seek the eviction of the 1 st defendant who is not the tenant. The plaintiff has created a false and forged document. This defendant is only Power of 10 O.S.492/2014 Attorney holder of tenant Ashok.S. Mohan Rao. The plaintiff herself is the tenant with respect to the portion of 2 nd floor of the property and it is learnt that the landlord N.Ravi Prathap has filed eviction case against the plaintiff herein in S.C.No.137/2013 which is pending for consideration before the City Small Causes Judge (SCH) No.12. It is also learnt that N.Ravi Prathap has also filed suit against the plaintiff herein in O.S.No.5299/2013 for recovery of arrears of rent and the same is also pending before the City Civil Court, Bangalore (CCH-42). N.Ravi Prathap has filed eviction cases against all the tenants in the building and out of them two are decreed, i.e., one filed against Ashok.S. Mohan Rao and another tenant by name Bharathraj Jain. The decree passed against Bharathraj Jain is now pending in the appeal before Hon'ble High Court of 11 O.S.492/2014 Karnataka. R.N.Nanjundappa, father of N.Ravi Prathap was the owner of the property. On his death his son N.Ravi Prathap has become the absolute owner of the entire property in view of the registered 'Will' executed by R.N.Nanjundappa on 12.8.2010. The Khatha of the schedule property also stands in the name of N.Ravi Prathap. He is paying property tax to the BBMP. The plaintiff claimed her right under registered 'Will' dated 24.6.2009 said to have been executed by R.N.Nanjundappa. But the plaintiff herself admits that the said 'Will' dated 24.6.2009 is cancelled and cancellation of the said 'Will' dated 24.6.2009 vide registered deed of cancellation R.N.Nanjundappa executed registered 'Will' dated 12.8.2010 bequeathing the schedule property in favour of N.Ravi Prathap and another property to another son. Under such 12 O.S.492/2014 circumstances the plaintiff cannot bank upon the alleged 'Will' dated 24.6.2009. The plaintiff has filed the suit in O.S.No. 1932/2011 against N.Ravi Prathap and his brother Shashi Prathap wherein she prayed to declare that the cancellation deed 'Will' dated 12.8.2010 and the registered 'Will' dated 12.8.2010 are null and void. In the light of the prayer made in O.S.No.1932/2011 it is clear that the plaintiff knows about the cancellation of the 'Will' said to have been executed in favour of her by late R.N.Nanjundappa and also the execution of the 'Will' by R.N.Nanjundappa in favour of his son N.Ravi Prathap. Under such circumstances the plaintiff cannot maintain the suit against this defendant who is not the tenant of the premises and who has never agreed to pay the rents to the plaintiff. The plaintiff herself being the tenant of 13 O.S.492/2014 the building cannot claim ownership of the property. When suit for ejectment and also suit for recovery of arrears of rent filed by N.Ravi Prathap are pending for consideration. The plaintiff is not entitled for any relief as prayed in the plaint. Hence on these grounds the 1 st defendant prayed for dismissal of the suit.
6. The 2 nd defendant who has impleaded in this suit resisted the claim of the plaintiff by filing his written statement wherein he has reiterated the written statement contentions taken by the 1 st defendant. The 2 nd defendant also taken contention that the brother of the 1 st defendant by name Ashok.S. Mohan Rao is a tenant under the 2 nd defendant and the 2 nd defendant is receiving rents from his tenant Ashok.S. Mohan Rao. The plaintiff herself is the tenant of this defendant. This defendant had filed the suit against the plaintiff 14 O.S.492/2014 for eviction in S.C.No.137/2013. Though the said suit was dismissed but the revision petition filed in CRP.No.454/2014 filed before Hon'ble High Court of Karnataka is pending for consideration. The 'Will' executed by R.N.Nanjundappa was cancelled, therefore the plaintiff cannot bank upon the 'Will' dated 12.8.2010 and claim ownership of the property. This defendant is the absolute owner not only under the 'Will' executed by his late father R.N.Nanjundappa but he is also one of the legal heirs being the son of R.N.Nanjundappa. The 2 nd defendant also had filed the suit in O.S.No.5299/2013 for recovery of arrears of rent from the plaintiff. Since that suit was dismissed he has challenged the same by filing RFA.No.835/2015 which is pending on the file of Hon'ble High Court of Karnataka for consideration. The plaintiff herself is 15 O.S.492/2014 declared as tenant of R.N.Nanjundappa. She has also so stated in her IT returns. Since the plaintiff is tenant in one of the portions she cannot claim as the owner of the premises. The property bearing No. 92, 93, 94, 95 built on the site measuring 30 feet x 54 feet consisting of ground floor, 1 st floor and 2 nd floor and there are totally 8 tenaments. Out of 8 tenaments one is in the occupation of the 2 nd defendant, other 7 tenaments are tenanted. The 2 nd defendant had filed eviction cases against other tenants who committed default in payment of rents. In the eviction cases the 2 nd defendant has succeeded not only before the Trial court but also before the Hon'ble High Court of Karnataka.
7. The 2 nd defendant filed the ejectment suit against the tenant by name Sri.Bharath Lal Jain in 16 O.S.492/2014 O.S.No.5401/2011 and the same was decreed by the trial court and the said tenant Sri.Bharath Lal Jain filed RFA No. 2073/2012 and the same is pending on the file of Hon'ble High Court of Karnataka. The present plaintiff also filed RFA No. 2073/2021 even though she was not the party to the proceedings. The 2 nd defendant had filed suit against the tenant one W.T.Prakash Kumar in S.C.No.2093/2011 and the same was decreed. The said tenant W.T.Prakash Kumar filed CRP No.275/2014 which ended in compromise. He did not comply with the order. Hence the 2 nd defendant filed Execution No. 1089/2014 and taken actual possession of the property by executing delivery warrant. The 2 nd defendant has filed eviction case against his tenant by name O.P.Ganesh in S.C.No.2095/2011 and the same was also decreed 17 O.S.492/2014 against which O.P.Ganesh has filed CRP.No.234/2014 and the same is pending for consideration.
8. Similarly the 2 nd defendant filed ejectment suit against his tenant by name Sri.Ashok S.Mohan Rao (brother of the 1 st defendant) in S.C.No.2094/2011 wherein the tenant by name Ashok S.Mohan Rao was represented by his Power of Attorney S.Srinivas who is the 1 st defendant herein and the said suit was compromised and by mutual consent the said tenant is still continuing the possession by paying monthly rent of Rs.11,000/- to the 2 nd defendant. While compromising the matter Ashok S.Mohan Rao has signed the compromise petition and also the present defendant No. 1 S.Srinivas also signed the compromise petition as he was representing as Power of Attorney. 18 O.S.492/2014
9. The 2 nd defendant also filed ejectment suit against his tenant by name Narasimha Murthy in S.C.No.2096/2011 and the same was decreed by the trial court. CRP No.2034/2014 filed by Narasimha Murthy also dismissed. Thereafter the present 2 nd defendant filed Execution Case No. 1091/2014 and taken possession of the property in Execution No. 1091/2014. The present plaintiff challenged the eviction order passed against the tenant of this 2 nd defendant by name W.T.Prakash Kumar, O.P.Ganesh and Narasimha Murthy by fililng CRP No. 232, 236 and 237 of 2014 before Hon'ble High Court of Karnataka, Bangalore. All the three revision petitions filed by the present plaintiff were dismissed by the Hon'ble High Court of Karnataka on 28.7.2014. Challenging the same the plaintiff filed SLP No. 26882/26884/2014 and 19 O.S.492/2014 the said three SLPs were also dismissed by an order dated 6.10.2017. The 2 nd defendant had filed ejectment suit against his tenant T.A.Bansi Lal Kandewal in O.S.No.1034/2014 and the same was compromised and there was an order of eviction against the said tenant. However since he did not complied the order the 2 nd defendant filed Execution No. 248/2015 and took possession through court lawfully on 23.1.2016. Sri.Bharath Lal Jain and four others together filed a suit in O.S.No.2147/2011 for the relief of injunction and the said suit was dismissed on 24.2.2014. Now the present plaintiff herself has filed the suit in O.S.No. 1397/2011 against the 2 nd defendant N.Ravi Prathap and also his brother by name Shashi Prathap and the said suit is pending. Not satisfied with all the above litigations the present plaintiff filed private 20 O.S.492/2014 complaint in PCR No. 18420/2011 against the present 2 nd defendant and his brother Shashi Prathap and in the said complaint the police after investigation has filed 'B' report. The said 'B' report was challenged by the plaintiff by filing CRP No. 37/2014 before the City Civil and Sessions Court who inturn remanded the matter to the trial court. As against the remand order 2 nd defendant and his brother Shashi Prathap filed CRP No. 719/2013 on the file of Hon'ble High Court of Karnataka and the Hon'ble High Court of Karnataka was pleased to grant interim order of stay and the matter is still pending before the Hon'ble High Court of Karnataka. The plaintiff is abusing the process of court. The plaintiff has no right over the suit property. The plaintiff is alleging that late R.N.Nanjundappa, i.e., father of 2 nd defendant had 21 O.S.492/2014 executed a 'Will' dated 24.6.2009 but the said 'Will' is subsequently cancelled by registered document of Cancellation of 'Will' dated 12.8.2010 and on the very date R.N.Nanjundappa executed another 'Will' in favour of his children, i.e., two sons. Present defendant No. 2 is one of the sons of late R.N.Nanjundappa. R.N.Nanjundappa expired on 26.9.2010. The Khatha of the schedule property stands in the name of 2 nd defendant after the death of his father on the basis of the registered 'Will' dated 12.10.2010 executed by R.N.Nanjundappa. The 2 nd defendant paid taxes to the concerned authorities. The suit schedule property is a portion of the property bearing No. 92, 93, 94 and 95 consisting of ground floor, 1 st floor and 2 nd floor which constructed on a site measuring 30 feet x 50 feet with respect to which 22 O.S.492/2014 there is already eviction order in the suit filed by the 2 nd defendant. Therefore under these circumstances this suit is liable to be dismissed in limine. There is no cause of action to file this suit. Hence on these grounds the 2 nd defendant prayed for dismissal of the suit.
10. Based on the pleadings of the parties the following issues are framed:
(1) Whether the plaintiff proves that there is relationship of landlord and tenant between the plaintiff and the defendant in respect of the suit schedule property ?
(2)Whether the plaintiff proves that there is valid and legal termination of tenancy of the defendant over the suit schedule property ?
23 O.S.492/2014(3)Whether the plaintiff is entitled for the relief of possession as prayed ?
(4)Whether the plaintiff is entitled for arrears of rent from the defendant as prayed in the plaint ?
(5)Whether the plaintiff is entitled for future mesne profits as prayed ?
(6)To what order or decree ?
11. In order to prove the case of the plaintiff the plaintiff examined herself as PW1 and the documents Ex.P1 to Ex.P7 are marked. During the course of cross-examination of PW1 the document Ex.D1 is marked. After closure of the evidence on the side of the plaintiff defendant No. 2 examined himself as DW1 and the documents Ex.D1 to Ex.D5 are marked. Since during the evidence of DW1 the document Ex.D1 'Will' 24 O.S.492/2014 is marked it is considered as Ex.D1A. The defendant No. 1 has not stepped into the witness box.
12. I have heard the arguments on the side of the learned counsel for the plaintiff and the learned counsel for the defendant No.2.
13.. 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 : In the Negative
Issue No.5 : In the Negative
Issue No.6 : As per the final order
for the following:
REASONS
14. Issue No.1: It is the specific case of the plaintiff is that the defendant No. 1 who was the tenant of the 25 O.S.492/2014 suit schedule property under previous owner R.N.Nanjundappa after the death of R.N.Nanjundappa on the basis of the 'Will' dated 24.6.2009 the plaintiff became the owner of the suit schedule property and thereafter the defendant No. 1 continued as a tenant under the plaintiff and on 1.4.2011 the defendant No. 1 has entered into a fresh lease agreement with the plaintiff agreeing to pay enhanced rent of Rs.5,000/- per month. It is the contention of the plaintiff is that the lease agreement is initially for 11 months which can be extended for further period of two years and the defendant No. 1 has agreed to pay 10% enhancement in the rent for every two years. It is the contention of the plaintiff is that the 1 st defendant was paying the rent by cheques as well as by way of cash to her and was taking the receipt from the plaintiff 26 O.S.492/2014 and the 1 st defendant has paid rent upto August 2012. Thereafter he was stopped to pay the rent when the plaintiff was objected for preparing condiments in the schedule premises as it was eminate lot of smell and smoke in the area and was affected the suit schedule property. It is the contention of the plaintiff is that the 1 st defendant and other tenants have filed suit before this court in O.S.No.2147/2011 for the relief of permanent injunction wherein they have categorically stated that they are the tenants under the plaintiff but now the 1 st defendant contending contrary to the same. It is the contention of the plaintiff is that when she was issued termination notice to the 1 st defendant terminating the tenancy then the 1 st defendant given untenable reply contending that he is not tenant under her. On the other hand the 1 st defendant in his 27 O.S.492/2014 written statement has taken contention that there is no jural relationship of landlord and tenant between the plaintiff and him. It is the contention of the 1 st defendant is that since he is not the tenant of the premises therefore the question of termination of his tenancy does not arise. It is the specific contention of the 1 st defendant is that landlord N.Ravi Prathap who is the owner of the suit property given the suit property on rent to Ashok S.Mohan Rao, brother of this defendant. It is the contention of the 1 st defendant is that N.Ravi Prathap filed suit in S.C.No. 2094/2011 against his tenant Ashok S.Mohan Rao wherein this defendant represented as Power of Attorney holder. That suit in S.C.No. 2094/2011 was decreed as matter ended in compromise.
28 O.S.492/2014
15. The 2 nd defendant has also taken contention that the 1 st defendant is not a tenant in the suit schedule property. It is his specific contention that brother of 1 st defendant by name Ashok S.Mohan Rao is a tenant under him and he is receiving the rents from his tenant Ashok S.Mohan Rao. It is the specific contention of the 2 nd defendant is that he is the absolute owner of the building and the plaintiff herself is the tenant under him in one portion of the building. The 2 nd defendant has taken contention that the suit filed by the plaintiff against him and the suit filed by him against the plaintiff are still pending He has taken contention that the plaintiff has filed suit against him and his brother challenging the cancelled 'Will' and 'Will' executed by his father in favour of him. He has taken contention that he is the absolute owner of 29 O.S.492/2014 the entire property not only under the 'Will' executed by his late father R.N.Nanjundappa but he is also one of the legal heir being the son of R.N.Nanjundappa. He has taken contention that the plaintiff herself was declared herself as tenant under R.N.Nanjundappa and she has also so stated in her IT returns. The 2 nd defendant has taken specific contention that out of 8 tenaments of the entire building he has tenanted 7 tenaments and he has filed ejectment suits some of which came to be decreed and he has taken possession by filing execution petition and some of the cases are still pending before the Hon'ble High Court of Karnataka. Thus in this suit there is not only denial of landlord and tenant relationship between the plaintiff and the 1 st defendant in respect of the suit schedule property but also the defendants have 30 O.S.492/2014 seriously disputed the contention of the plaintiff regarding her ownership under the 'Will' by contending that the alleged 'Will' dated 24.6.2009 was cancelled by R.N.Nanjundappa himself by way of registered cancellation 'Will' dated 12.8.2010. It is the contention of the 2 nd defendant is that on the same day on 12.8.2010 R.N.Nanjundappa executed 'Will' in favour of him and his brother. Admittedly the suit filed by the plaintiff in O.S.No.1932/2011 is still pending for consideration. Under such circumstances it is not advisable to give findings on the ownership of the suit schedule property. Since in this suit denied the relationship of landlord and tenant between the plaintiff and 1 st defendant this court would discuss only in respect of whether the plaintiff proves there is relationship of landlord and tenant between her and 31 O.S.492/2014 the 1 st defendant in respect of the suit schedule property.
16. The plaintiff who has examined as PW1 in her affidavit filed for examination-in-chief has reiterated the plaint averments and deposed that she is the beneficial owner in possession of the suit schedule property and the property bearing No. 92, 93, 94 and 95 situated at 8 th cross, Malleshwaram, measuring east to west 30 feet and north to south 54 feet consisting of ground, 1 st and 2 nd floor. She states that the 1 st defendant is the tenant in the ground floor shop portion of the above said property bearing No. 92, measuring 9 x 15, i.e., suit schedule property. She states that the 1 st defendant entered into lease agreement with her on 1.4.2011 and agreed to pay enhanced rent of Rs.5,000/- per month. Prior to that 32 O.S.492/2014 also he was tenant of the schedule premises under precious owner R.N.Nanjundappa. She has deposed that the 1 st defendant was paying rents by cheque as well as by way of cash and was taking the receipt from her. The 1 st defendant has paid rent upto August 2012. She states that though the shop premises were leased to the defendant for the purpose of condiments only, he started preparing condiments in the schedule premises. Preparation of condiments was eminating lot of smell and smoke in the area and also was affecting the schedule building. Even the neighbours have objected for the same. She states that since she has objected for same the 1 st defendant stopped paying rents since August 2012. Hence she is constrained to issue legal notice dated 23.8.2013 calling upon the 1 st defendant to pay arrears of rent of Rs.57,000/- and 33 O.S.492/2014 also terminated the tenancy and sought for vacation of the suit schedule premises. She has deposed that the 1 st defendant has given an untenable reply contending that he is not the tenant which is contrary to lease agreement and payment of rent. She has deposed that in suit filed by the 1 st defendant and others in O.S.No.2147/2011 for the relief of injunction against her and two others the 1 st defendant has categorically stated in the plaint that he is the tenant under her. During the course of cross-examination by the learned counsel for the 2 nd defendant PW1 has denied the suggestion that Ashok S.Mohan Rao is the tenant under the 2 nd defendant in the suit schedule property. PW1 in her cross-examination pleaded her ignorance about filing of the suit by 2 nd defendant in S.C.No.2094/2011 and the said suit ended in 34 O.S.492/2014 compromise on 22.3.2013. She pleased her ignorance in S.C.No.2094/2011 the present defendant No. 1 appeared as General Power of Attorney holder of his brother Ashok S.Mohan Rao. PW1 admitted the suggestion that 1 st defendant has sent reply notice to her to the notice dated 23.8.2013 issued by her. She has admitted the fact that in the reply notice the 1 st defendant clearly stated that the present 2 nd defendant who has filed suit against Ashok S.Mohan Rao in O.S.No.2094/2011 seeking for eviction. She has admitted the suggestion that even though she has read such contention in Ex.P5 reply notice she has not made Ashok S.Mohan Rao as party in this suit. She has admitted the suggestion that there are seven tenants in the schedule building. She has admitted the suggestion that the suit schedule building originally belongs to 35 O.S.492/2014 R.N.Nanjundappa. She has admitted the suggestion that there is no blood relation between her and R.N.Nanjundappa. She has admitted the suggestion that R.N.Nanjundappa used to issue rent receipt to her as she is tenant under him. She has admitted the suggestion that she was shown regarding the rent receipt issued by the R.N.Nanjundappa in her IT returns. PW1 in her examination-in-chief admitted the suggestion that she was written letter to Ashok S.Mohan Rao to pay the rent to her. When xerox copy of her letter confronted to her in her cross-examination she admitted the document. Hence the xerox copy of the latter issued by her to Ashok S.Mohan Rao marked as Ex.D1. She has admitted the suggestion that even though she was filed 3 SLPs before Hon'ble Supreme Court challenging the revision petition order passed by 36 O.S.492/2014 the Hon'ble High Court of Karnataka the same were dismissed by Hon'ble Supreme Court. PW1 has admitted the suggestion that Ashok S.Mohan Rao is the tenant of the suit schedule property. She has deposed as " ಅಶಶಶಶಕಕ ಎಸಕ. ಮಹನಕ ರರವಕ ಬರಡಗಶದರರರದರದರಶ ಎಎದರಶ ನಜ" . She has admitted the suggestion that Ashok S.Mohan Rao and the 1 st defendant are brothers. She has deposed that Ashok S.Mohan Rao was not delivered the suit schedule property to her. She has denied the suggestion that the document Ex.P3 lease deed is created document. She has deposed that the 2 nd defendant might have paid property tax to the suit schedule property. She has denied all other suggestions made to her.
17. The defendant No. 2 who has examined as DW1 in his affidavit filed for examination-in-chief reiterated 37 O.S.492/2014 his written statement contentions. He has deposed that the 1 st defendant is not the tenant under the plaintiff but the brother of the 1 st defendant by name Ashok S.Mohan Rao is his tenant with respect to the schedule property on a monthly rent of Rs.12,000/- and the said Ashok S.Mohan Rao is paying the rent to him. He states that he had filed suit for ejectment against Ashok S.Mohan Rao in S.C.No.2094/2011 and in that suit defendant No. 1 herein was represented as Power of Attorney holder of Ashok S.Mohan Rao and the said suit was compromised and by mutual consent the said tenant continuing and presently paying rent of Rs.12,000/- per month. He has deposed that he had filed suit against another tenant by name Narasimha Murthy in S.C.No.2096/2011 and same was decreed by the trial court. Even though Narasimha Murthy filed 38 O.S.492/2014 CRP No.2039/2014 same was dismissed. Thereafter he had filed Execution Case No. 1091/2014 and that execution case the possession was delivered to him. He has deposed that even though the plaintiff has no manner of right, title or interest in respect of suit schedule building she challenged the eviction order passed against his tenants by name W.T.Prakash Kumar, O.P.Ganesh and Narasimha Murthy in CRP No.232, 236 and 237 of 2014 before the Hon'ble High Court of Karnataka, Bangalore and all the three revisions filed by the present plaintiff was dismissed by Hon'ble High Court of Karnataka by order dated 28.7.2014. He states that against the said order passed by the Hon'ble High Court of Karnataka the plaintiff filed SLP.No.26882, 26883 and 26884 of 2014 and the same were dismissed by Hon'ble Apex Court by order 39 O.S.492/2014 dated 6.10.2017. He states that the ejectment suit filed by him against the tenant by name T.A.Bansilal Kandawal in S.C.No.1034/2015 ended in compromise. Failing the tenant to comply with the compromise he filed Execution Case No. 248/2015 and took the possession of the premises which was in occupation of T.A.Bansilal Kandawal on 23.1.2016. He has deposed that the suit in O.S.No.2147/2011 filed by the Sri.Bharath Lal Jain and four others came to be dismissed on 24.2.2014. He has deposed that he had filed the ejectment suit against the present plaintiff in S.C.No. 137/2017 and since the said suit was dismissed he filed CRP No. 454/2014 and the same is pending for consideration. He has deposed that the plaintiff who is tenant is defaulted in payment of rents and she claims that she is a legatee under the 'Will' of 40 O.S.492/2014 R.N.Nanjundappa. Though the said 'Will' was cancelled by registered document the plaintiff is claiming her right over the 'Will'. He has deposed that his father R.N.Nanjundappa bequeathed his properties to him and his brother. The suit schedule property is bequeathed to him and thus he is the absolute owner of the suit schedule property. The plaintiff has no manner of right, title, interest in the suit schedule property except she is the the tenant in one of the tenaments of the schedule building. DW1 has deposed that since the plaintiff herself being the tenant in one of the portions of the schedule building she cannot claim that she is the landlady of the suit schedule property. He has deposed that out of seven tenaments in the building he has taken possession of four tenaments and other three are pending for consideration. He states that out of 8 41 O.S.492/2014 tenaments one is in his occupation. He has deposed that his father bequeathed the suit property in his favour and Khatha of the suit schedule property stands in his name and he has been paying the taxes to the BBMP for the schedule property. The document Ex.D1 to Ex.D5 are marked through DW1. Ex.D1 is the certified copy of the 'Will' dated 12.8.2010, Ex.D2 is the 4 Khatha extracts, Ex.D3 is the 4 Khatha certificates, Ex.D4 is the certified copy of the order sheet of S.C.No.2094/2011, Ex.D5 are 4 property tax paid receipts. During the course of cross-examination of DW1 by the learned counsel for the plaintiff DW1 has admitted the suggestion that the 1 st defendant S.Srinivas and Ashok S.Mohan Rao are brothers. He has denied the suggestion that 1sst defendant and his brother Ashok S.Mohan Rao were jointly running the 42 O.S.492/2014 business in the suit schedule property. He states that the shop licence of the suit schedule property standing in the name of Ashok S.Mohan Rao. He has admitted the suggestion that the 1 st defendant had filed the suit against the plaintiff for the relief of permanent injunction but he has stated that the suit was came to be dismissed. He has admitted the suggestion that prior to filing of the suit in S.C.No.2094/2011, O.S.No.1932/2011 was pending. He has admitted the suggestion that the suit in O.S.No.1932/2011 is pending between him and plaintiff with regarding to the 'Will'. He has denied the suggestion that in order to deprive the plaintiff he along with Ashok S.Mohan Rao compromised the case in S.C.No. 2094/2011. He has denied the suggestion that the document Ex.P3 is the lease agreement entered into between the plaintiff and 43 O.S.492/2014 defendant No. 1. He has admitted the suggestion that the suit filed by the plaintiff in O.S.No.1932/2011 claiming that she has life interest in the property is pending for consideration. He has denied the suggestion that all the cases filed by him before the Small Causes Court ended in compromise. He has deposed that accept the case in S.C.No.2094/2011 which ended in compromise of other cases in S.C.No.2092/2011, 2093/2911, 2095/2011, 5401/2011 were decreed on merits. He has denied the suggestion that the 1 st defendant was the tenant under his father.
18. The learned counsel for the plaintiff argued that in order to show the landlord and tenant relationship between the plaintiff and 1 st defendant the plaintiff has produced the document Ex.P3 lease agreement. He argued that in order to substantiate the contention 44 O.S.492/2014 taken by the defendants and to show that Ashok S.Mohan Rao is the tenant in the suit schedule property the defendants have not examined Ashok S.Mohan Rao as the witness in this suit. He argued that after R.N.Nanjundappa executed the 'Will' dated 24.6.2009 in favour of the plaintiff the tenancy attorned in favour of the plaintiff and she continued to collect the rent from defendant No. 1. He argued that this court cannot decide regarding the ownership of the suit schedule property. He submitted that the plaintiff has produced the document Ex.P3 lease agreement to show the landlord and tenant relationship between the plaintiff and defendant No. 1. On the other hand the learned counsel for the defendant No. 2 argued that this suit is not maintainable before this court as the suit schedule premises measuring less than 45 O.S.492/2014 14 square meters. He argued that since the suit schedule property is measuring only 9 x 15, i.e., 155 square feet this suit filed before this court is not maintainable. He submitted that the Karnataka Rent Act is applicable. Hence the plaintiff should have filed the suit before the Small Causes Court. He argued that the entire building is belongs to defendant No. 2. He argued that PW1 herself in her cross-examination admitted the suggestion that one Ashok S.Mohan Rao is the tenant. He argued that defendant No. 2 has filed the eviction petition against Ashok S.Mohan Rao in S.C.No. 2094/2011 and in that case the present defendant No. 1 who was represented as Power of Attorney holder of Ashok S.Mohan Rao that suit was compromised and Ashok S.Mohan Rao and his brother the present defendant No. 1 were both signed on the 46 O.S.492/2014 compromise petition. He argued that since the plaintiff herself filed the suit challenging the cancellation of 'Will' that itself indicates she is not the owner of the suit schedule property.
19. I have appreciated the rival contentions taken by the parties. Regarding the maintainability of this suit and the contention of the learned counsel for defendant No. 2 is that since the suit property is measuring only 9 x 15, i.e., 155 square feet the suit of plaintiff before this court is not maintainable is concerned, this arguments of the learned counsel for the defendant No. 2 is not acceptable because in the written statement the 2 nd defendant has not taken any such contention that the suit of the plaintiff is not maintainable. In this suit there is serious dispute with regarding to the landlord and tenant relationship 47 O.S.492/2014 between the plaintiff and the 1 st defendant. Since there is serious dispute regarding the landlord and tenant relationship between the plaintiff and defendant No. 1, this court of the opinion that the provision under section 43 of the Karnataka Rent Act is debar to take congnizance of this suit by the Small Causes Court. I have gone through the decision cited by the learned counsel for the defendant No. 2 which is reported in 2008(4) KCCR 2326 in Mohan Lal Vs. Subramani, wherein it is held that the premises measuring less than 14 square meters used for commercial purpose the provision of the Karnataka Land Act are applicable. No doubt there is no dispute regarding the principles laid down by the Hon'ble High Court of Karnataka in this cited decision. But in the present suit the defendants have seriously disputed 48 O.S.492/2014 about the landlord and tenant relationship between the plaintiff and defendant No. 1. Under such circumstances it cannot be held that the jurisdiction of this court is oust to decide regarding the dispute between the plaintiff and defendants. In this suit the plaintiff has taken contention that the defendant No. 1 is the tenant of the suit schedule property under her. It is the contention of the plaintiff is that the 1 st defendant who was the tenant under the erstwhile owner R.N.Nanjundappa after his death continued as a tenant under the plaintiff as she has become the owner of the entire building under the 'Will' dated 24.6.2009. On the other hand the defendants have taken contention that defendant No. 1 is not the tenant under the plaintiff and there is no jural relationship of landlord and tenant between the plaintiff and 1 st 49 O.S.492/2014 defendant. It is the specific contention of the defendant is that the 2 nd defendant has given the suit schedule property on rental basis to brother of the 1 st defendant by name Ashok S.Mohan Rao who is the tenant under the defendant No. 2. Thus in this suit main question is to be decided is whether the 1 st defendant is the tenant under the plaintiff or the 1 st defendant's brother Ashok S.Mohan Rao is the tenant of the suit schedule property. In order to substantiate the contention taken by the plaintiff she has mainly relied upon three documents Ex.P1 certified copy of the 'Will' dated 24.6.2009, Ex.P3 lease agreement dated 1.4.2011, Ex.P6 certified copy of the plaint in O.S.No.2147/2011. On the other hand in order to substantiate the contention taken by the 2 nd defendant that Ashok S.Mohan Rao is the tenant under him he 50 O.S.492/2014 has relied upon the document Ex.D1 xerox copy of the notice issued by the plaintiff to Ashok S.Mohan Rao demanding rent from him. Ex.D4 certified copy of the order sheet and compromise petition and decree in S.C.No.2094/2011. I have appreciated the oral evidence of PW1, DW1 and the documents produced by them. It is pertinent to note that even tough the plaintiff has taken contention that defendant No. 1 S.Srinivas is the tenant under her but during the course of her cross-examination by the learned counsel for the defendant No. 2 she has admitted the suggestion that Ashok S.Mohan Rao is the tenant of the suit schedule property. The relevant portion of her cross-examination is reads as follows:
" ದರವರ ಸಸತತನಲಲ ಅಶಶಶಶಕಕ ಎಸಕ. ಮಶಹನಕ ರರವಕ ಬರಡಗಶದರರರರಗರರತರತರಶ ಎಎದರಶ ನಜ . ಅಶಶಶಶಕಕ ಎಸಕ. ಮಶಹನಕ ರರವಕ 51 O.S.492/2014 ಮತರತ 1 ನಶಶ ಪಪತವರದ ಸಹಶಶದರರರ ........... ನರವವ ಕಳರಹಸದ ಟರರನಶಶಶನಕ ನಶಶಶಟಸಕ ಗಶ 1 ನಶಶ ಪಪತವರದ ಉತತರ ಕಳರಹಸ ಅದರಲಲ ತರನರ ......... ತಳಸರರತರತರಶ ಎಎದರಶ ನಜ . .......... ಅಶಶಶಶಕಕ ಎಸಕ. ಮಶಹನಕ ರರವಕ ನನಗಶ ಬಟರಟಕಶಶಟಟರರವವದಲಲ . Thus on perusal of the cross-examination portion of PW1 it clearly shows that in her cross-examination PW1 has clearly admitted the suggestion that Ashok S.Mohan Rao is the tenant in the suit schedule property. During the course of cross-examination of PW1 the document Ex.D1 xerox copy of notice of the letter issued to her to Ashok S.Mohan Rao marked through her. In Ex.D1 which addressed to Ashok S.Mohan Rao the plaintiff has called upon him to pay the rent to her. This document Ex.D1 of the year 2010. Even though the specific date is not mentioned in Ex.D1, the year is mentioned as 2010. That means much prior to the 52 O.S.492/2014 document Ex.P3 lease agreement the plaintiff was issued letter to Ashok S.Mohan Rao calling upon him to pay the rent. If at all Ashok S.Mohan Rao was not the tenant in the suit schedule property what made the plaintiff to issue such letter to Ashok S.Mohan Rao is not explained by the plaintiff. More than that during the course of cross-examination of PW1 she has clearly admitted that Ashok S.Mohan Rao is the tenant in the suit schedule property. She has also deposed that she has not taken possession of the suit schedule property from Ashok S.Mohan Rao. Under such circumstances the doubt arises regarding the contention taken by the plaintiff is that the 1 st defendant S.Srinivas is the tenant under her.
20. In this suit even though the plaintiff has taken contention that the 1 st defendant was paying rents by 53 O.S.492/2014 way of cheque as well as by way of cash till August 2012 in order to substantiate this contention taken by the plaintiff she has not produced any documents. It is the specific contention of the plaintiff is that in the suit filed in O.S.No.2147/2011 filed by the present defendant and four other tenants they have categorically stated in the plaint that they are the tenants under the plaintiff. The plaintiff has produced the document Ex.P6 certified copy of the plaint in O.S.No.2147/2011. I perused Ex.P6 copy of the plaint which shows that this suit in O.S.No.2147/2011 was filed on 19.3.2011. That is much prior to the document Ex.P3 lease agreement, Ex.P3 lease agreement is dated 1.4.2011. Admittedly the 1 st defendant in his reply notice as per Ex.P5 has denied the lease agreement dated 1.4.2011 and also denied the 54 O.S.492/2014 landlord and tenant relationship between the plaintiff and him. In Ex.P5 it is clearly stated that his brother Ashok S.Mohan Rao is the tenant with respect to the shop premises under one Sri.N.Ravi Prathap. It is specifically mentioned in Ex.P5 reply notice that defendant No. 1 was never the tenant of any of the tenaments in the said building bearing No. 92, 93, 94 and 95 under the plaintiff. PW1 in her cross- examination admitted the suggestion that defendant No. 1 in his reply notice as per Ex.P5 has taken such contention that he is not the tenant under her and his brother Ashok S.Mohan Rao is the tenant under defendant No. 2 N.Ravi Prathap. On perusal of the oral evidence of PW1 and the document Ex.P5 it would go to show that even prior to filing of this suit the plaintiff knows the contention of the 1 st defendant 55 O.S.492/2014 is that he is not the tenant under the plaintiff. If at all the 1 st defendant has set up any such contention that he was tenant under someone else the matter would have been different. In this suit it is the specific contention of the 1 st defendant is that he was never the tenant of any of the tenaments in the said building. Since the defendants have seriously disputed the landlord and tenant relationship between the plaintiff and defendant No. 1 and taken speific contention that the 1 st defendant is not at all the tenant in the suit schedule property heavy burden lies upon the plaintiff to show that 1 st defendant is the tenant of the suit schedule property as on the date of the suit. The plaintiff by relying upon the document Ex.P3 lease agreement and the document Ex.P6 copy of plaint which are of the year 2011 has taken 56 O.S.492/2014 contention that the 1 st defendant is the tenant under her with respect to the suit schedule property. It is pertinent to note that the plaintiff has filed this suit in the year 2014. It is burden on the plaintiff to show that as on the date of filing of the suit the 1 st defendant was the tenant under her with respect to the suit schedule property. But in order to substantiate the contention taken by the plaintiff that there exists landlord and tenant relationship between the plaintiff and 1 st defendant as on the date of filing of the suit the plaintiff has not produced any documents. This court cannot presume that the 1 st defendant who was the tenant under R.N.Nanjundappa continued as a tenant under the plaintiff also on the basis of the alleged 'Will' dated 24.6.2009. Admittedly the suit filed by the plaintiff against the defendant No. 2 and 57 O.S.492/2014 his brother challenging the cancellation of 'Will' is still pending for consideration. Under such circumstances unless and until the civil court gives finding regarding the 'Will' it cannot be held that the plaintiff has become the absolute owner of the suit schedule property.
21. In the decision of Hon'ble Supreme Court in Subhash Chandra Vs. Mohammed Shariff the Hon'ble Supreme Court held that the tenant is entitled to show that the plaintiff has not as a matter of fact secured a transfer from the original landlord or that the alleged transfer is ineffective for some other valid reason which renders the transfer to be non-existent in the eye of law. The Hon'ble Apex Court has held that in cases where the landlord himself had not inducted tenant into the petition premises and his rights are 58 O.S.492/2014 founded on a derivative title, the tenant who is already in possession can challenge the plaintiffs claim of derivative title by showing that the real owner is someone else. The doctrine of estoppel under section 116 of the Evidence Act cannot be made applicable to the present suit because the defendant No. 1 and 2 have taken specific contention that defendant No. 1 is not at all the tenant of the suit schedule property. It is one Ashok S.Mohan Rao the brother of defendant No. 1 is the tenant in the suit schedule property. Plaintiff herself in her cross-examination admitted the suggestion that Ashok S.Mohan Rao is the tenant in the suit schedule property. It is not the contention of the plaintiff is that Ashok S.Mohan Rao is the tenant under her. If at all Ashok S.Mohan Rao was not the tenant under the plaintiff what made her to issue letter 59 O.S.492/2014 as per Ex.D1 calling upon Ashok S.Mohan Rao to pay the rent is not explained by the plaintiff. I have gone through the document Ex.P3 lease agreement. On perusal of this lease agreement in page No. 2 there is clear mention that after the the death of R.N.Nanjundappa his sons N.Ravi Prathap claim that he is the owner of the schedule premises on the basis of the 'Will' dated 12.8.2010 but the said 'Will' is under challenge and the subject matter of Original Suit bearing No. 1932/2011 pending before the City Civil Court (CCH-38), Bangalore. On perusal of the averments made in Ex.P3 it would go to show that plaintiff was aware regarding the 'Will' dated 12.8.2010 executed by R.N.Nanjundappa in favour of Ravi Prathap, i.e.,, defendant No. 2. No doubt in Ex.P3 it is mentioned that the said 'Will' executed by 60 O.S.492/2014 R.N.Nanjundappa was challenged by filing the suit in O.S.No.1932/2011. The defendant No. 2 has taken specific contention that his father by cancelling the 'Will' dated 24.6.2009 executed in favour of the plaintiff by way of cancellation 'Will' deed dated 12.8.2010 and on the same day executed 'Will' in his favour and in favour of his brother. The plaintiff in her plaint suppressed regarding filing of the suit in O.S.No.1937/2011. But during the course of evidence she has admitted regarding the pendency of the suit in O.S.No.1932/2011. On perusal of the document Ex.P3 lease agreement in clause No. 12 at page No. 5 it is mentioned as follows:
(12) Custody of this lease agreement - this lease agreement is prepared in two sets. The custody of the original lease agreement shall be with the lessee and 61 O.S.492/2014 the signed photo copy is with the lessor. According to this clause the lessor is retained only the signed photo copy of the lease agreement and the original lease agreement was with the lessee. The document Ex.P3 is not the photo copy. Ex.P3 is the original lease agreement. The plaintiff has not made known to the court how she can get the original lease agreement when it is clearly mentioned in Ex.P3 that the custody of original lease agreement shall be with the lessee.
That itself indicates that the document Ex.P3 is not genuine document. If the document Ex.P3 is not genuine document there is no chance of plaintiff is in possession of the original lease agreement.
22. The 2 nd defendant who has taken contention that Ashok S.Mohan Rao is the tenant under him. In order to substantiate this contention he has produced the 62 O.S.492/2014 document Ex.D4 certified copy of the order sheet in S.C.No.2094/2011 filed against Ashok S.Mohan Rao on 23.7.2011. This case in S.C.No.2094/2011 ended in compromise. In view of the compromise petition under Order 23 Rule 3 of C.P.C. as same was allowed on 22.3.2013 the compromise decree was passed. The present defendant No. 1 who was representing as General Power of Attorney holder of his brother Ashok S.Mohan Rao also signed to the compromise petition as well as the order sheet in S.C.No. 2094/2011. Even in Ex.P5 reply notice given by the defendant No. 1 to the plaintiff he has clearly mentioned in para No. 3 that Ashok S.Mohan Rao is the tenant under N.Ravi Prathap. It is mentioned that N.Ravi Prathap has filed ejectment suit against Ashok S.Mohan Rao in S.C.2094/2011 and the same was decreed and Ashok 63 O.S.492/2014 S.Mohan Rao has granted time upto 31.12.2014 to vacate and deliver vacant possession of the shop premises to his landlord N.Ravi Prathap. This reply notice as per Ex.P5 issued to the plaintiff on 25.9.2013. That means the plaintiff was aware about the compromise decree passed in S.C.No. 2094/2011 much prior to filing of this suit. In order to show that the Khatha of the suit schedule property was transferred in the name of the 2 nd defendant the 2 nd defendant has produced the document Ex.D2 four Khatha extracts and produced Ex.D3 four Khatha certificates. In order to show that defendant No. 2 is paying the property taxes he has produced the document Ex.D5 four property tax receipts. The 2 nd defendant also produced the document Ex.D1A copy of 'Will' to show that his father executed the 'Will' in his 64 O.S.492/2014 favour. In this suit this court cannot go into deep regarding the document Ex.P2 copy of 'Will' produced by the plaintiff and Ex.D1A copy of 'Will' produced by the defendant as the matter is pending for adjudication in O.S.No.1932/2011 with regarding to the genuinity of these 'Wills'. In the present suit the plaintiff who has taken contention that the defendant No. 1 is the tenant under her has failed to prove the same by giving cogent evidence. The very admission given by PW1 in her cross-examination that Ashok S.Mohan Rao is the tenant in the suit schedule property is sufficient to hold that the 1 st defendant is not the tenant of the suit schedule property. It is Ashok S.Mohan Rao who is the tenant in the suit schedule property. The defence taken by the defendant No. 2 is more probable than the contention taken by the plaintiff. The plaintiff has 65 O.S.492/2014 failed to prove the landlord and tenant relationship between the plaintiff and the 1 st defendant in respect of suit schedule property. The oral evidence of PW1, DW1 and the documents produced by them would probabalise that the defendant No. 1 is not the tenant in the suit schedule property but it is Ashok S.Mohan Rao who is the tenant in the suit schedule property. In this suit Ashok S.Mohan Rao is not made as a party. Since there is no cogent evidence on the side of the plaintiff to show that the defendant No. 1 is the tenant of the suit schedule property as on the date of the suit this court of the opinion that there is no relationship of landlord and tenant between the plaintiff and the 1 st defendant in respect of the suit schedule property. The plaintiff has failed to prove issue No.1 hence I answer issue No. 1 in the Negative. 66 O.S.492/2014
23. Issue No. 2: While discussing issue No. 1 I held that the plaintiff has failed to prove the relationship of landlord and tenant between the plaintiff and the 1 st defendant. The plaintiff has taken contention that she has terminated the tenancy of the 1 st defendant by issuing the legal notice as per Ex.P4 on 23.8.2013. It is admitted fact that the 1 st defendant after receipt of the notice issued the reply notice to the plaintiff as per Ex.P5 on 25.9.2013. In his reply notice the 1 st defendant has clearly stated that he is not the tenant of any of the tenaments of the building under the plaintiff. The defendant No. 1 in his reply notice itself has taken contention that his brother Ashok S.Mohan Rao is the tenant under N.Ravi Prathap (defendant No. 2). Since the plaintiff has failed to prove the landlord and tenant relationship between her 67 O.S.492/2014 and the 1 st defendant in respect of the suit schedule property the notice as per Ex.P4 is not helpful to the plaintiff to say that she has validly and legally terminated the tenancy of the 1 st defendant over the suit schedule property. Since the plaintiff has failed to prove there exists relationship of landlord and tenant between her and the 1 st defendant the plaintiff has also failed to prove that she has validly and legally terminated the tenancy of the defendant No. 1 over the suit schedule property. Hence I answer issue No. 2 in the Negative.
24. Issue No. 3 to 5: In view of my findings on issue No. 1 as the plaintiff has failed to prove that there exists relationship of landlord and tenant between the plaintiff and the 1 st defendant in respect of suit schedule property the plaintiff is not entitled for the 68 O.S.492/2014 relief of possession as prayed in the plaint. With regarding to the arrears of rent from the 1 st defendant is concerned the plaintiff has not produced any document to show that defendant No. 1 was paying the rent to her till August 2012. Even though the plaintiff has taken contention that she was given the suit schedule property to the 1 st defendant on rental basis the oral evidence of PW1 and DW1 would go to show that the brother of the 1 st defendant namely Ashok S.Mohan Rao is in possession of the suit schedule property. In this suit Ashok S.Mohan Rao is not made as a party. During the course of cross- examination of PW1 she has admitted the fact that even though she was challenged the three revision petitions order passed by the Hon'ble High Court of Karnataka by preferring SLP before Hon'ble Supreme 69 O.S.492/2014 Court and the same was dismissed. DW1 has deposed that even though the plaintiff challenged the eviction order passed against W.T.Prakash Kumar, O.P.Ganesh and Narasimha Murthy in CRP No. 234, 236 and 237 of 2014 before the Hon'ble High Court of Karnataka, Bangalore all the three revision petitions were dismissed by order dated 28.7.2014. He has deposed that even though the plaintiff filed SLP No. 26882, 26883 and 26884 of 2014 before the Hon'ble Supreme Court the same were also dismissed by the Hon'ble Apex Court by an order dated 6.10.2017. PW1 in her cross-examination admitted the suggestion that all the SLP filed by her came to be dismissed. That itself indicates that the defendant No. 2 is the landlord of remaining three tenaments in the same building. The present suit is only pertaining to the suit schedule 70 O.S.492/2014 property measuring 9 feet x 18 feet. In this suit the plaintiff has failed to prove the landlord and tenant relationship between her and the 1 st defendant in respect of suit schedule property. Hence the plaintiff is not entitled for the relief of possession and also not entitled for the arrears of rent from the 1 st defendant. The plaintiff is also not entitled for future mesne profit as prayed in the plaint. Hence I answer issue No. 3 to 5 in the Negative.
25. Issue No. 6: In view of my findings on the above issue No. 1 to 5, I proceed to pass the following:
ORDER Suit of the plaintiff is dismissed.71 O.S.492/2014
Parties shall bear their own cost.
Draw decree accordingly.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in the open court on this the 26 th day of March 2021.) ( Mohan Prabhu ) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE Witnesses examined for the plaintiff/s :
PW1 - Sumithra K Potnis Witness examined for the defendant/s : DW1 - N.Ravi Prathap Documents marked for the plaintiff/s : Ex.P1 - Death certificate of Chikkappanna Ex.P2 - Certified copy of 'Will' dated 24.6.2011 Ex.P3 - Rental agreement dated 1.4.2011 72 O.S.492/2014 Ex.P4 - Notice copy Ex.P5 - Reply notice Ex.P6 - certified copy of plaint in O.S.No.2147/2011 Ex.P7 - certified copy of I.A. in O.S.No.2147/2011 Documents marked for the defendant/s : Ex.D1 - certified copy of 'Will' dated 12.8.2010 Ex.D2 - 4 Khatha extracts Ex.D3 - 4 Khatha certificates Ex.D4 - certified copy of order sheet in S.C.No.2094/2011 Ex.D5 - 4 Tax paid receipts ( Mohan Prabhu ) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE. 73 O.S.492/2014 Judgment pronounced in the open court (vide separate detailed Judgment) ORDER Suit of the plaintiff is dismissed. Parties shall bear their own cost. Draw decree accordingly. XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE. 74 O.S.492/2014