Karnataka High Court
T.S. Prameela vs Balakrishna And Anr. on 13 June, 2001
Equivalent citations: 2001(6)KARLJ102
Author: K. Sreedhar Rao
Bench: K. Sreedhar Rao
JUDGMENT
The Court
1. The appeal is filed against the order passed on LA. No. I in Ex. Case No. 3299 of 1996 on the file of 2nd Additional Small Cause Judge, Bangalore. The appellant is the objector in the execution case filed an application under Order 21, Rule 98 and Section 151 of the Civil Procedure Code read with Rule 35 of the Karnataka Rent Control Act objecting the execution of the delivery warrant in respect of the petition property.
2. The background of the case leading to the present appeal are stated thus: The appellant is the daughter of one Ramaiah Setty. The said Ramaiah Setty had a wife by name Padmavathamma. According to the appellant the petition property was gifted to her orally by her father for Arisina Kunkuma. Ramaiah Setty had no male heirs and he died in the year 1972. By virtue of the said oral gift, the appellant claims to be in possession and enjoyment of the property. Further it was contended before the Trial Court in the application that one Subbaiah Setty was inducted as a tenant by the appellant and he vacated the premises. Thereafter, appellant is in continued possession and enjoyment of the petition property.
3. The first respondent in the appeal claims that the petition property was gifted by registered deed in favour of his wife Padmavathamma from whom the first respondent purchased the property under registered sale deed. After the purchase of the property, it is said that the tenancy in favour of Subbaiah Setty was attorned in favour of the first respondent and he filed H.R.C. case in 1479 of 1993 seeking eviction of Subbaiah Setty who is the 2nd respondent. The petition came to be allowed directing the eviction of the 2nd respondent. Pursuant to the said order, the present execution proceedings are initiated securing the eviction and delivery of possession.
4. The appellant objected to the delivery proceedings contending that the petition property belongs to her and she has acquired ownership rights in the petition property by way of oral gift given by her father towards Arisina Kunkuma, that apart contends that the respondent 2 has never been in possession of the property and without reference to her making some false allegations H.R.C. proceedings were instituted against respondent 2 and on the basis of the order obtained under the said proceedings the execution is being taken out. Therefore, she contends that her possession being lawful and valid, she cannot be disturbed and the order of eviction granted does not bind her.
5. From the records it also discloses the first respondent had filed the suit O.S. No. 656 of 1977 on the file of the Civil Judge, Bangalore, later on renumbered as O.S. No. 1845 of 1980 against the husband of the appellant seeking declaration and possession of the petition property. It is said that a decree has been granted in the suit in favour of the first respondent herein. However, the execution is not taken out. On the strength of the said facts, the Counsel for the appellant contended that it clearly indicates from the proceedings that the possession and enjoyment of the suit property is with the appellant and therefore, the order of eviction made in H.R.C. case without reference to the appellant is invalid and not binding on her.
6. In the earlier suit filed by the respondent herein, the husband of the appellant had also set up a plea of oral gift towards Arisina Kunkuma in favour of the appellant. The said claim was rejected, as untenable. However, any finding given on the rights of the appellant in the proceedings to which she is not a party may not be binding on her as she was not a party in the said proceedings and merely because her husband had set up the plea of title of the appellant would not in any way affect her claim to espouse her right independently in separate proceedings.
7. However, the plea of title set up by the appellant in the petition property does not appear to be tenable and acceptable in law. The property in question is an immovable property valuing more than Rs. 100/-, it is necessary that any transfer of interest in an immovable property under Section 17 of the Registration Act, 1908 has to be by a registered document. Therefore, any claim of right or interest in the immovable property by way of oral gift or oral transfer is totally untenable and it is not also the case that the transfer of interest by way of family partition and as a part of the transaction of oral partition or oral family settlement. Therefore, it cannot be held that the appellant has any legal interest in the property to set up title adversely against the first respondent herein. The title deeds like gift deed and sale deed produced by the first respondent clearly indicate the valid transfer of the property by Ramaiah Setty in favour of his wife Padmavathamma and in turn from Padmavathamma to the first respondent who gets the interest and title in the property by way of registered sale deed.
8. The other question raised by the appellant is the possessory right in the property. By virtue of the proceeding O.S. No. 656 of 1977 it is sought to be argued that possession of the property is admittedly with the husband of the appellant. Therefore, initiation of H.R.C. proceedings and taking eviction order against the 2nd respondent is highly preposterous and contradicts with the stand taken in the earlier suit. This argument apparently may appear to be impressive, but on deep scrutiny, does not stand to reason. In the suit, the possession was sought from the husband of the appellant and it has not been the stand of the first respondent that the appellant was in possession. However, subsequently, the eviction proceedings are instituted against the 2nd respondent.
9. The contention of the Counsel for the appellant that the 2nd respondent by then had already vacated the premises and therefore, the entire proceedings instituted in H.R.C. No. 1479 of 1993 are farce. In support of this contention the 2nd respondent has made his appearance, filed statement stating that he had vacated the premises and handed over the premises to the possession of the appellant.
10. On going through the proceedings in the order sheet of the H.R.C. case it discloses that when the H.R.C. was instituted summons were taken out on the 2nd respondent. The proceedings dated 15-1-1994 in the order sheet indicate that on refusal of the summons by the respondent the same were fixed on the door of the premises, which in fact means that the 2nd respondent was in occupation and that he had refused the summons. This material belies the contention of the appellant that as on the date of the institution of the H.R.C. proceedings, she was in occupation of the premises and that the 2nd respondent was not in occupation. From this material it can only be inferred that subsequent to 15-1-1994 the 2nd respondent should have vacated and handed over the premises to the appellant. At the time when the H.R.C. was instituted, the 2nd respondent was in occupation and valid eviction orders are taken. Any subsequent induction of the appellant in the premises cannot invest any better or independent right in the appellant in the eye of law. In that view of the matter possessory right whatever set up by the appellant also cannot be held to be valid so as to successfully resist the claim of delivery warrant.
11. The Counsel for the appellant cited the Ruling of this Court in the case of M/s. Paramound Industries and Metal Finishers v Smt. C.M. Malliga, to contend that any proceedings under Order 21, Rules 97 to 101, 103 and 104, it is necessary that proper opportunity should be given to the parties and the claim has to be tried as suit. In the instant case, it is argued that the Trial Court without referring to any evidence and without giving opportunity to the appellant to adduce evidence, the petition has been disposed of. Hence, the order is to be set aside and the matter to be remanded. I do not find any force in the argument of the Counsel for the appellant when the facts set out by the appellant ex facie does not indicate or warrant any opportunity for leading evidence. It would be preposterous to remand the matter for fresh hearing. On the very narration of the facts if it is found that the appellant has not made out prime facie case for any enquiry, there is no basis to set aside the order and to remand the matter for giving an opportunity. It would be only an insistence for complying the technical formality without any basis or merit. Accordingly, the appeal is dismissed.
12. The Counsel for the appellant submitted that atleast some time may be granted for the appellant to make alternative arrangements. Keeping in view the request, the time is granted by two months to enable the respondent to make alternative arrangements, till then the execution of delivery warrant be postponed.