Bangalore District Court
Sri. Kumarvel vs Sri. Senthil Kumar on 21 March, 2022
KABC020314262019
IN THE COURT OF SMALL CAUSES
AT BENGALURU (SCCH5)
DATED THIS THE 21ST DAY OF MARCH, 2022
PRESENT: SRI. KUMARA. S. B.A, LLB.,
VIII ADDL. JUDGE & ACMM,
COURT OF SMALL CAUSES,
BENGALURU.
S.C No.1749/2019
PLAINTIFF : Sri. Kumarvel
Aged about 53 years
S/o. Perumal
R/at. No.25, 1st "B" Main,
Sudamanagar,
Bengaluru - 560 027.
(By Sri.E.R.Gajendra Naidu,
Adv.,)
V/s
DEFENDANT : Sri. Senthil Kumar
S/o. Nagarajan
Aged about 34 years
R/at. No.16, Ground Floor,
Shop No.5, 14,
Kilo Meter Singa Sandra Village,
2 S.C.No.1749/2019
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Begul Hobli,
South Taluk.
Bengaluru - 560 068.
(Exparte)
Date of Institution :
of the suit 18.12.2019
Nature of the suit : Ejectment Suit
Date of :
commencement
recording of the 22.12.2021
evidence
Date on which the :
judgment was 21.03.2022
pronounced
Total Duration : Years Month/s Days
02 03 03
****
(KUMARA. S. )
VIII ADDL. JUDGE & ACMM,
BENGALURU.
::JUDGMENT::
This is a suit filed by the Plaintiff against Defendant for seeking ejectment of the Defendant from the suit schedule premises and for recovery of arrears of rent with costs.3 S.C.No.1749/2019
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2. The brief facts of the Plaintiff case is as follows; The Plaintiff is the absolute owner of the entire property bearing No.16, in Khatha No.48, situated at Singasandra Village, Begur Hobli, Bengaluru South Taluk, Bengaluru, measuring East to West 55 ft. North to South 72 ft. The Defendant being a tenant in occupation of the Ground Floor Shop No.5, situated on the property bearing No.05, Khatha No.48, 14th Kilo Meter, Singasandra Village, Begur Hobli, Bengaluru South Taluk, Bengaluru, consisting of a shop with toilet measuring 17x16 ft., totally measuring 153 sq. ft. consists of a shop with toilet on a monthly rent of Rs.3,850/ p.m. exclusive of electricity, water, sanitary and motor charges, 1/5th as per share with the other occupants of the building. The date of tenancy being the 5th day of each English Calendar month and ending on the said calendar month.
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3. The Defendant is running the Emboroidery Business under the name and style "Kreative Designs"
since from the date of inception of tenancy, the schedule property was let out to the Defendant under the condition if the parties so desires the tenancy will be continued by mutual consent by enhancing the rent annually or that the tenancy can be terminated by either of the parties giving one month's notice by each other. That it was also agreed that, Defendant would vacate the schedule premises in good and tenanted condition while handing over the vacant possession. Since, the shop premises which is in use and occupation of the Defendant is bonafidly and reasonably required by the Plaintiff for his need and requirement and also for the use and occupation of his son, who has recently completed his studies and for other family members to set up their own business. Moreover, the Defendant is an 5 S.C.No.1749/2019 SCCH5 undesirable tenant and is most irregular in the matter of payment of rent. The Defendant used to pay the rents according to his whims and fancies.
4. It is further case of the Plaintiff that, the Defendant has stopped payment of rent from March 2017 and onwards for the use and occupation of the schedule premises and towards exclusive use of electricity, water, sanitary and motor charges 1/5th as per share with the other occupants of the building. Instead of making payments, the Defendant would bring his henchmen, goondas and create nuisance in the vicinity of the schedule property and used vulgar and filthy language not only against the Plaintiff, but also against other family members of the Plaintiff and insulted the Plaintiff and neighbours of the family and in front of his friends, well wishers and tarnished the image and reputation. The Plaintiff who is bonafidely and reasonably required the 6 S.C.No.1749/2019 SCCH5 suit schedule premises demanded the Defendant to quit, vacate and deliver to him the vacant possession of suit schedule shop premises. The Defendant who initially assured the the Plaintiff that he would put him into the vacant possession of the suit schedule premises at the earliest point of time. But, later on, for the reasons best known to him inspite of being satisfied about the requirement of the Plaintiff for the use and occupation of the suit schedule premises went on postponing the delivery of vacant possession of the suit schedule premises on some pretext or the other and also assured to deliver possession during July 2017.
5. The Defendant is most irregular and chronic defaulter in the matter of payment of rents right from the date of induction of tenancy. The Plaintiff requested the Defendant for number of times to quit, vacate and handover the suit schedule premises for his use and 7 S.C.No.1749/2019 SCCH5 occupation and to pay the arrears of rent from time to time. Inspite of demand, the Defendant has not choosen or bothered to quit, vacate and hand over the suit schedule premises to the Plaintiff. Finally, the Plaintiff was constrained to issue legal notice to Defendant dated 13.05.2019 calling upon him to quit, vacate and handover vacant possession of the suit schedule premises and also pay the arrears of rent. The Defendant is avoiding to receive the legal notice issued by the Plaintiff for the reasons best known to him has not choosen to vacate and hand over the vacant possession of the suit schedule premises and has not even choosen to pay the arrears of rent. The notice of termination of tenancy was sent to the Defendant through Registered Post Acknowledgment Due. The Defendant who was in receipt of the legal notice of termination of tenancy has not chosen to comply with the demands made in the legal 8 S.C.No.1749/2019 SCCH5 notice and on the termination of the tenancy in respect of the suit schedule premises, the Defendant has no right to continue to be in occupation of the suit schedule premises. The use and occupation of the suit schedule premises by the Defendant from 31.05.2019 and onwards, is an unauthorized one. Hence, Plaintiff is constrained to file the present suit against the Defendant.
6. Inspite of service of notice by way of affixture, the Defendant remained absent, hence, placed exparte.
7. On the basis of the above said pleadings, the following points that would arise for my consideration are: ::POINTS FOR CONSIDERATION::
1. Whether the Plaintiff proves that, he is landlord of the suit schedule premises and Defendant is tenant under him? 9 S.C.No.1749/2019
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2. Whether Unregistered Lease Agreement dated 30.07.2015 for the period of two years is admissible in evidence and can be used for establishing relationship of Landlord and Tenant, as per law?
3.What order or decree?
8. The Plaintiff in order to prove his case, he herself is examined as PW1 and got marked 6 documents as Ex.P.1 to Ex.P.6 and closed his side evidence.
9. I have heard arguments advanced by the learned counsel for the Plaintiff on merits of the case and perused records.
10. My answer to the above points are as follows: Point No.1 : In the Negative Point No.2 : In the Negative Point No.2 : As per final order for the following:
10 S.C.No.1749/2019
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11. Point No.1 and 2: Inorder to avoid repetition of facts and appreciation of evidence on record, these two points are taken together for common consideration and discussion. According to Plaintiff, the Defendant is tenant under him since from 30.07.2015 and Defendant is chronic defaulter and irregular in payment of rent amount and suit schedule premises is required for the Plaintiff for his need and requirement for use and occupation of his son and family members to set up their own business. Inspite of oral requests and demands made by him, the Defendant did not vacate and handover the vacant possession of the suit schedule premises and even also not paid the rent from March, 2017. Accordingly, the Plaintiff has issued termination notice dated 13.05.2019 calling upon the Defendant to quit, 11 S.C.No.1749/2019 SCCH5 vacate and hand over the vacant possession of the suit schedule premises. But, inspite of receipt of notice, the Defendant did not quit, vacate and hand over the vacant possession of the suit schedule premises and even he has not paid the arrears of rent from March, 2017 onwards. In the chiefexamination evidence, PW1 has reiterated the plaint averments.
12. Apart from the oral evidence, the Plaintiff has got marked 6 documents as Ex.P.1 to Ex.P.6. Ex.P.1 is copy of Absolute Sale Deed dated 12.06.2002, which discloses that, Plaintiff has purchased the suit schedule property from one Krishna Reddy on 12.06.2002. Ex.P.2 is Khatha Extract, which shows that, as per Sale Deed, the khatha of the suit schedule property was mutated in the name of the Plaintiff. Ex.P.3 is Tax Paid Receipt issued by BBMP, Bengaluru, which shows that, the Plaintiff has paid upto date tax to the BBMP. Ex.P.4 is 12 S.C.No.1749/2019 SCCH5 Lease Agreement Deed dated 30.07.2015 allegedly entered into between the Plaintiff and Defendant with respect to suit schedule premises and as per the averments made in Ex.P.4, the said Lease Deed is for the period of two years. But, said Ex.P.4 is unregistered and unstamped document. Eventhough it is marked in evidence as Ex.P.4, it cannot be looked into for consideration of evidence, since it is unregistered document. Since, it is a lease agreement for the period of 2 years, it is unregistered and unstamped document and it cannot be looked into for any purpose. Ex.P.5 is copy of Termination Notice dated 13.05.2019, which shows that, the Plaintiff has issued notice to the Defendant calling upon him to quit, vacate and hand over vacant possession of the suit schedule premises and also payment of arrears of rent. Ex.P.6 is Postal Receipt. But, the Plaintiff has not produced any documents i.e., Postal 13 S.C.No.1749/2019 SCCH5 Acknowledgment for proof of service of notice to the Defendant.
13. The Plaintiff mainly depend upon Ex.P.4 Lease Agreement Deed dated 30.07.2015, to establish that, there is jural relationship of landlord and tenant between Plaintiff and Defendant. But, the said Ex.P.4 is unregistered and insufficiently stamped document and said Lease Deed is for the period of two years. When the Court raised question for payment of stamp duty on the said unregistered document, the Plaintiff has relied upon judgment of Hon'ble High Court of Karnataka reported in 2018 6 Kar. L.J.442 in a case of M.Shankar V/s. M.S.Surendra and Others, wherein while discussing provisions of Sec.35 and Sec.36 of Stamp Act, it is held that, "The Court is satisfied that no interference in impugned order is called for, as the learned 14 S.C.No.1749/2019 SCCH5 Trial Court has rightly held said objection about the stamp duty on the Lease Deed in question was raised belatedly and at fag end of the trial - Effort of the first Defendant - tenant seems to be to drag trial unnecessarily, as lease deed in question which was executed way back and such an objection could have been raised at initial stage itself and there seems to be no justification in raising the said objection at a belated stage".
It is settled principles of law that, once the document is accepted or admitted in evidence, it is not liable to reviewed or refused. It is so held by the Hon'ble Apex Court in a decision 1961 AIR 1655 in case of Javer Chand and Others V/s. Purkhraj Surana. In that case it is held that, once a document is exhibited or admitted in evidence, it is not liable to be reviewed or revised. But, question before the Court is, whether the 15 S.C.No.1749/2019 SCCH5 unregistered lease deed for a period of two years can be relied upon?
14. In this regard, the Plaintiff has relied upon judgment rendered by Hon'ble High Court of Karnataka in Writ Petition No.17829/2018 (GM CPC) in a case of Late. Indravathi Srinivasan, deceased by Lrs. V/s. Dr.Sunitha Venugopal and Others, wherein Hon'ble High Court of Karnataka in para 39 observed that, "In the absence of the registered documents, as per Sec.106(1) of the Transfer of Property Act lease is deemed to be month to month. In such case, Section 106 of the Transfer of Property Act requires issuance of 15 days notice for termination of lease. This was admittedly done in this case. Therefore there was sufficient admission to pass a decree under Order XII Rule 6 of CPC".
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15. But, in the present case on hand, Lease Agreement is not period less than one year. But, it is for the period of two years and hence, under the above circumstances, inview of Sec.107 of Transfer of Property Act, it clearly envisages that, the lease of immovable property for period of one year and upwards needs to be compulsorily registered and unregistered document cannot convey any right to the party. In the case on hand, Ex.P.4 is lease agreement for a period of two years and it is compulsorily registerable document.
16. The Hon'ble Supreme Court of India in a decision reported in AIR 1984 SC 143 in a case of Satish Chand Makhan and Others V/s.Govardhan Das Byas wherein it was held that, "The unregistered Lease deed cannot also be taken into consideration on the ground that, such deed can be admitted in evidence for 17 S.C.No.1749/2019 SCCH5 collateral purpose, invoking proviso to Section 49 of Registration Act, as terms of the lease are not a collateral purpose within its meaning".
17. In this regard it is relevant to quote necessary provisions of Transfer of Property Act. Sec.107 of Transfer of Property Act provides that, "A lease of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument".
This provisions of law clearly indicates that, lease agreement or lease deed of immovable property for year and more than one year or exceeding one year, it shall be a compulsorily registered document only.
18. Further, as per Sec.17 of Registration Act, 1908 it provides that, 18 S.C.No.1749/2019 SCCH5 "17. Documents of which registration is compulsory.--(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No.XVI of 1864 or the Indian Registration Act, 1866 or the Indian Registration Act, 1871 or the Indian Registration Act 1877 or this Act came or comes into force, namely:--
(a) instruments of gift of immovable property;
(b)other nontestamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property
(c) nontestamentary instruments which acknowledge the receipt or payment of any 19 S.C.No.1749/2019 SCCH5 consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent".
The above provision of Sec.17(d) of Registration Act mandates that, leases of immovable property from year to year or for any term exceeding one year or reserving a yearly rent is compulsorily registrable documents.
19. Further, Sec.49 of Registration Act provides that, "S.49 Effect of nonregistration of documents required to be registered.--No document required by section 17 (or by any provision of the Transfer of Property Act, 1882), to be registered shall--
(a) affect any immovable property comprised therein, or 20 S.C.No.1749/2019 SCCH5
(b) confer any power to adopt or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered".
This provision of Registration Act clearly mandates that, the effect of nonregistration of documents required to be registered in accordance with law, it cannot affect any immovable property comprised therein or confer any power to adopt or be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered and it cannot create any rights or interest with respect to immovable property. 21 S.C.No.1749/2019
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20. In this regard, Hon'ble High Court of Andhra Pradesh in a decision reported in 2000 (5) ALD 577 in a case of Relangi Nageswara Rao And Another vs Tatha Chiranjeeva Rao (Died) by Lrs, in para 27 it is held that, "The case of the petitioner would stand or fall on establishing the relationship and that issue cannot be decided in the guise of collateral transaction. Whether there is a tenancy or whether the respondent was a tenant cannot be treated as a collateral issue in the instant case. What cannot be achieved by the petitioner directly cannot be allowed to be achieved indirectly".
In Para 28 it is observed and held that, "The unregistered lease deed Ex.A4 cannot be received in evidence for establishing the relationship between the petitioner and 22 S.C.No.1749/2019 SCCH5 respondent as landlord and tenant as collateral issue".
Therefore, Ex.P.4 unregistered lease deed for a period of two years cannot be looked into for establishing relationship between Plaintiff and Defendant as landlord and tenant as collateral issue.
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21. It is nodoubt true that, unregistered document can be received for collateral purpose. But the question is, whether rendering a findings as to relationship between the parties as landlord and tenant can be said to be collateral purpose in the instant case. Admittedly, the Plaintiff has tried to establish relationship of landlord and tenant under Ex.P.4 and as that finding alone decides the entire fate of the case. Therefore, inview of judgment Hon'ble Apex Court, Hon'ble High Court of Andhra Pradesh, since Ex.P.4 is Unregistered Lease Deed for a period of 2 years cannot be received in evidence for establishing relationship between Plaintiff and Defendant as landlord and tenant as collateral issue. Though, Ex.P.4 is marked in evidence, mere marking of document is not dispensation with permission to mark document or marking of a document does not by itself amount to admission in evidence, unless it is specifically admitted 24 S.C.No.1749/2019 SCCH5 by the parties. Therefore, the said unregistered Ex.P.4 Lease Agreement cannot be relied upon and cannot be a basis for decreeing the suit of the Plaintiff and though he has established ownership of suit schedule premises, but he has utterly failed to prove that Defendant is a tenant under him by producing documents and adducing the clinching and believable evidence.
22. Further, in this case the Plaintiff has not complied the General Circular No.06/2021 dated 14.11.2021 (as per the judgment passed by the Hon'ble High Court of Karnataka in C.R.P. No.159/21 dated 25.08.2021 in the matter of passing of exparte order of eviction) issued by Hon'ble High Court of Karnataka, Bengaluru where, as per the directions of Hon'ble High Court of Karnataka in passing exparte order of eviction, the Trial Courts are directed that, 25 S.C.No.1749/2019 SCCH5 "The Trial Court shall call upon the parties to produce documents such as an Electricity Bill, Telephone Bill, Pass Book extracts, or such other documents which establish the actual residence of the tenants".
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SCCH5 But, in the present case on hand, the Plaintiff has not produced such documents before the Court to comply the order of Hon'ble High Court of Karnataka or the General Circular issued by Hon'ble High Court of Karnataka. In this case, the suit summons has not been personally served on the Defendant. Many times, the summons issued to the Defendant is returned with report of Process Nazar as 'address of the Defendant was not traced out'. But, finally, the Plaintiff has taken steps by serving the summons by way of substitute service i.e., by affixing the summons to the shop of the Defendant. Therefore, the Plaintiff has also failed to establish that, the Defendant is said to be tenant under him and was actually resident of suit schedule premises. Therefore, looking to any angle, under the above facts and circumstances of the case and inview of provision of law and in the light of judgment of Hon'ble Apex Court, 27 S.C.No.1749/2019 SCCH5 Hon'ble High Court of Andhra Pradesh, the Plaintiff has utterly failed to prove the jural relationship between himself and Defendant. Further, unregistered lease deed for a period of two years, cannot be used in for the collateral purpose to establish the relationship of landlord and tenant. Ex.P.4 document is unregistered one, it cannot be looked into for any purpose without registration of the said document in view of provisions of Transfer of Property Act and Registration Act. Accordingly, the Plaintiff has failed to prove Point No.1 and 2. In the result, Point No.1 and 2 are answered in the negative.
23. Point No.3: Inview of the above reasons and discussions to the above points, I proceed to pass the following:
::ORDER::28 S.C.No.1749/2019
SCCH5 Suit of the Plaintiff is hereby dismissed. Under the facts and circumstances of the case, no order as to cost. Draw decree accordingly. (Dictated to the stenographer, transcript thereof is corrected and then pronounced by me in the Open Court on this the 21st day of March, 2022) (KUMARA. S.) VIII ADDL. JUDGE & ACMM, COURT OF SMALL CAUSES, BENGALURU.
::SCHEDULE::
All that piece and parcel of the Ground Floor Shop No.05 situated on the property bearing No.48, 14th Kilo Meter, Singa Sandra Village, Begur Hobli, Bengaluru South Taluk, Bengaluru. Consisting of a shop with toilet measuring 17 x 9 feet, totally 153 sq. ft. which is bounded on:
East by : Private Property
West by : Road
North by : Property No.17
South by : Property No.15
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(KUMARA S.)
VIII ADDL. SCJ & ACMM,
MEMBER, MACT,
BENGALURU.
::A N N E X U R E::
LIST OF WITNESSES EXAMINED ON BEHALF OF THE PLAINTIFF:
PW1 : Sri. Kumarvel LIST OF DOCUMENTS MARKED ON BEHALF OF THE PLAINTIFF:
Ex.P.1 : Copy of Sale Deed dated 12.06.2002
Ex.P.2 : Khata Extract
Ex.P.3 : Tax Paid Receipts
Ex.P.4 : Lease Deed
Ex.P.4A : Signature of Plaintiff on Lease Deed
Ex.P.4B : Signature of Defendant on Lease
Deed
Ex.P.5 : Copy of Legal Notice, dated
13.05.2019
Ex.P.6 : Postal Receipt
LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENDANT:
NIL 30 S.C.No.1749/2019 SCCH5 LIST OF DOCUMENTS MARKED ON BEHALF OF THE DEFENDANT:
NIL (KUMARA. S.) VIII ADDL. JUDGE & ACMM, COURT OF SMALL CAUSES, BENGALURU.