Karnataka High Court
M/S, Kataraiya Cloth Emporium vs Premchand on 29 January, 2013
Author: Jawad Rahim
Bench: Jawad Rahim
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 29TH DAY OF JANUARY 2013
BEFORE
THE HON'BLE Dr.JUSTICE JAWAD RAHIM
R.F.A.NO.1576 OF 2011
BETWEEN:
M/S.KATARIYA CLOTH EMPORIUM,
NO.19, K.S.MARKET,
(NEW NO.14/7) D.K. LANE,
CHICKPET CROSS,
BANGALORE - 560 053,
REPTD. BY ITS PROPRIETOR
SRI. GHEVERCHAND,
A/A ABOUT 59 YEARS.
....APPELLANT.
(BY SHRI.P.D.SURANA, ADVOCATE)
AND:
PREMCHAND
S/O LATE KEWAL CHAND,
AGED ABOUT 39 YEARS,
NO.764/3, I MAIN ROAD,
YESHWANTHAPUR,
BANGALORE - 560 022.
...RESPONDENT.
(BY SHRI. C.GOWRI SHANKAR)
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RFA FILED UNDER SECTION 96 R/W O- XLI,
RULE -1 OF CPC, AGAINST THE JUDGMENT AND
DECREE DATED 4.7.2011 PASSED IN O.S.
NO.5536/05 ON THE FILE OF THE XLIV ADDL. CITY
CIVIL & SESSIONS JUDGE, BANGALORE, DECREEING
THE SUIT FOR EJECTMENT ETC.
THIS APPEAL COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
Defendant's appeal against judgment and decree for possession passed in O.S. No.5536/2005, on the file of the Addl. City Civil and Sessions Judge, Bangalore.
2. Heard Sri. P.D. Surana, learned counsel for the appellant and Sri. C.Gowri Shankar, learned counsel for the respondent/landlord.
3. Perused the records in supplementation, which reveals that the plaintiff - Premchand filed a suit in O.S. No.5536/2005, seeking a decree to direct the appellant therein, to hand over vacant possession 3 of the property described in the schedule and also to pay mesne profits at Rs.1500/- per month and also future mesne profits at Rs.5,000/- per month from the date of the suit.
4. In support of such relief, he averred the property bearing No.19, which is a portion of Municipal No.14 now 14/7 is bifurcated portion of the ground floor of K.S. Market, Dewan Khan lane, Chickpet, which he purchased by virtue of the deed of sale dated 18.11.2004 from K.S.Lakshminarayana and K.S.Venkatachalapathi. The property in question is now in occupation of the defendant as a tenant.
5. It is further averred original defendant was tenant under K.S. Lakshminarayana on a monthly rent of Rs.755/- and was fully aware of the sale transaction made in his favour. However, after purchase of the property on 18.11.2004, he addressed 4 a letter vide Annexure-D, asking to attorn the tenancy and to pay rents, but the defendant failed to honour the demand made in the notice. He sent a reply dated 15.3.2004 vide Annexure-E. He further averred noticing the conduct of the defendant in not complying with the demands in the letter, he terminated his tenancy w.e.f. 6.4.2005 and directed him to deliver possession by 1.5.2005, which notice he received, but again failed to comply. In paragraph- 5 of the plaint, he described the defendant as a trespasser w.e.f., 1.5.2005 and liable to pay mesne profits at Rs.1500/- per month and also future mesne profits at Rs. 5,000/- per month.
6. In paragraph -6, it is categorically averred that from 18.11.2004, the defendant had not paid any amount towards rent and has set up imaginary defence, which is not acceptable in law. In that, the defendant had no better title than himself and 5 therefore liable to be evicted from the premises in question. He further averred that the occupation of the defendant was unauthorized and is a trespasser. Thus, he sought for a decree as stated above.
7. The defendant in that context filed a detailed statement admitting to the facts that he is in occupation of the ground floor portion of K.S. Market and carrying on the business.
8. In paragraph-10, he further averred that his tenancy was only under Surappa Shetty, who had inducted him into the premises in question and after demise of Surappa Shetty, his sons and daughters having succeeded to his estate are his legal heirs. He denied that K.S. Lakshmipathy was his landlord and upon the death of Surappa Shetty, he had acquired right of ownership over the property in question. Therefore, he described K.S.Venkatachalapathi and 6 K.S.Lakshminarayana as only few of legal heirs of Surappa Shetty. He denied they had right to transfer the property to any one much less the respondent herein.
9. Based on the material propositions in the pleadings, the Trial Court framed following issues:-
" 1) Whether the plaintiff proves that the defendant was a tenant under K.S.Lakshminarayana in respect of schedule premises?
2)Whether the plaintiff proves attornment of tenancy of defendant in favour of plaintiff?
3)Whether the termination of tenancy of the defendant is valid and is in accordance with law?
4)Whether the plaintiff is entitled for arrears of rent as claimed by him?
5)Whether the plaintiff is entitled for mesne profits claimed?7
6)Whether the defendant proves that the suit is not properly valued and proper court fee is not paid?
7)Whether the defendant proves that the schedule premises is less tan 14 square meters and that this curt has no jurisdiction to try this suit under the provisions of Karnataka Rent Act, 1999?
8)What order? "
In the trial that ensued, the parties have lead evidence. The plaintiff tendered his evidence on as P.W.2 and examined one K.S.Lakshminarayan, his vendor under the sale deed as P.W.1. He relied on 20 exhibits, while the defendant had no evidence, but produced two documents vide Ex.D1 and Ex.D2. However, after closure of evidence, the defendant filed three applications viz., I.A Nos.13 to 15 requesting the Trial Court to reopen the case, permitting him to lead evidence and contest the proceedings.
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10. Later, the Trial Court took up those three applications for consideration and found no merit and rejected the same and by the impugned order proceeded to decree the suit as prayed for. Assailing it, the defendant-tenant is in appeal.
11. Learned counsel Sri. Surana, at the outset has raised following grounds against the impugned judgment;
a)The appellant was admittedly a tenant in respect of the property in question on monthly rent of Rs. 755/- per month and annually it is Rs.9060/-. Therefore, the Civil Court had no jurisdiction to entertain the suit for possession..
b)The tenancy of the appellant was protected under the provisions of Section 27(1) of the Karnataka Rent Act, and therefore, the Civil Court had no 9 jurisdiction to entertain the suit for possession based on termination of tenancy under the Transfer of property Act.
c) Lastly, that the City Civil Court had no pecuniary jurisdiction to entertain the suit as the rent was less than Rs.25,000/- P.A.. Hence, the impugned judgment and decree is assailed.
12. In negation of the grounds urged by the appellant's counsel, Sri. Gowri Shankar, learned counsel for the respondent/plaintiff would submit the plaintiff was compelled to file a suit seeking possession of the property in occupation of the appellant/defendant, because of the specific defence taken by him questioning the title and ownership of the respondent in respect of the schedule property. He submits that the respondent/plaintiff had purchased the property from its owners namely, 10 K.S.Lakshminarayana and K.S.Venkatachalapathi for valuable consideration as evidenced by the deed of sale dated 18.11.2004. Soon after the purchase of the property in the manner known to law, the respondent/plaintiff addressed a letter vide Annexure- D requesting the appellant/defendant to attorn tenancy in his favour, which the appellant refused to do so and sent a untenable reply on 15.3.2004 vide Annexure-E.
13. He submits that the appellant/defendant did not dispute he was in occupation of the schedule premises as a tenant under one K.S. Lakshminarayana on a rent of Rs.755/- and therefore on sale of the property in favour of the respondent/plaintiff, the tenancy stood transferred and the appellant became his tenant by operation of law. He submits that in the reply notice sent by him on 15.3.2004, the appellant/defendant refused to attorn tenancy in 11 favour of the plaintiff disputing his title. Secondly, the plaintiff had no choice but terminate his tenancy through his notice dated 6.4.2005 directing him to deliver possession by 1.5.2005. He submits the said notice of termination of tenancy was duly served on the appellant, who again failed to comply with the demands made in the notice and questioned the right, title and interest of the plaintiff. Therefore, the plaintiff had no choice but to file a suit for possession, as he could not have filed eviction proceedings under the provisions of the Rent Act.
14. Sri. Gowri Shankar would further supplement his contention drawing my attention to the stand taken by the appellant that there was no relationship of landlord and tenant between him and the plaintiff. He submits had the appellant/defendant accepted the relationship of landlord and tenant, eviction proceedings could have been initiated under the 12 provisions of the Rent Act. Since there was a denial of such relationship, the plaintiff could not have choice but to file a suit for possession.
15. In answer to the objection raised by learned counsel Sri.P.D.Surana, regarding jurisdiction of the City Civil Court to entertain suit, he submits even though the annual rent payable was less than Rs.25,000/-, the plaintiff could not file a suit before the Court of Small Causes for a decree of possession, as the Court of Small Causes lacks such jurisdiction. He would refer to the provisions of the Small Cause Court Act to show that except suit for ejectment, all other suits seeking for a declaratory relief or possession are not cognizance by the Court of Small Causes. Therefore, he submits that a suit had to be filed before the Court of original jurisdiction in terms of the Karnataka Civil Courts Act, since the property is situated within the urban agglomeration of 13 Bangalore City, the suit had to be filed only in the Court of City Civil Court as rightly done by the plaintiff.
16. Regarding merit of the case, he would submit that the appellant/defendant had in unequivocal terms admitted he was inducted into the schedule premises as a tenant by one Surappa Shetty and was paying rents to him and upon the death of Surappa Shetty, the appellant/defendant became tenant under his legal heirs namely, K.S.Lakshminarayana and K.S.Venkatachalapathy, who sold the property to the plaintiff. He submits the plaintiff has purchased the property for his own use and occupation and required the premises urgently. In view of the dispute raised by the defendant about the relationship of landlord and tenant, the plaintiff has filed a suit for possession based on termination of tenancy which rightly the Trial 14 Court has decreed. He supports the impugned judgment.
17. Contentions of both sides have received my consideration and examined the records in supplementation thereto.
18. From the material propositions in the plaint filed by the respondent/plaintiff, it is evident that he categorically claims that he has acquired the property from two individuals namely, K.S. Lakshminarayana and K.S. Venkatalachalapathy describing them as the only legal heirs of one Surappa Shetty, original owner of the property in question. He has also relied on the deed of sale dated 18.11.2004 which evidences that K.S.Venkatachalapathi and K.S.Lakshminarayana have executed the sale deed in his favour to transfer the suit property.
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19. Against such a plea of the plaintiff, the appellant/defendant has categorically averred in the written statement that Surappa Shetty was the owner of the property, who had inducted him as tenant. Surappa Shetty died leaving behind several legal heirs including K.S.Lakshminarayana and K.S.Venkatachalapathy. In other words, the appellant's/defendant's specific case is that apart from K.S.Lakshminarayana and K.S.Venkatachalapathy, there are other heirs of Surappa Shetty. Therefore, his contention is that even though the appellant may have purchased the property from two of the legal heirs of Surappa Shetty, he gets only right, title and interest in proportion to the share of those two individuals, but does not get the right of ownership of the entire property, as he has purchased the share of other co- owners. Reply of the defendant dated 15.3.2004 Annexure-E reveals specific defence taken by him 16 when the plaintiff called upon him to attorn tenancy. However, to overcome the dispute raised by the defendant about lack of absolute ownership, the plaintiff has examined K.S.Lakshminarayana, one of his vendor as P.W.2 in the case, has testified in favour of the plaintiff that after receiving sale consideration, he executed a deed of sale dated 18.11.2004. He has produced Ex.P.2 - death certificate of his father, Ex.P3
- notice of the Corporation dated 29.8.1991 to show that property has devolved on him. However, it is material to note in his examination- chief itself while referring to Ex.P8 - certified copy of the sale deed dated 30.8.1992 executed in favour of Sha Mohanlal Anandmal & Co and also Ex.P.9 another sale deed, he categorically states that those documents were executed to sell the property in favour of the purchasers by him and his family members. Who are those family members has not been elicited by the 17 plaintiff nor any material information furnished about who are other legal-heirs of Surappa Shetty. In the cross-examination done on behalf of the appellant/defendant, he has further disclosed clearly Surappa Shetty had two sons and six daughters including himself. He has further admitted in cross- examination that during lifetime his father Surappa Shetty had not partitioned the properties. He also categorically admits that he and his brothers and sisters have not divided the properties left behind by his father among themselves. The relevant portion of cross-examination, which is material is as follows:
" The suit property was originally belongs to my father - K.Surappa Shetty. My parents are having two sons and six daughters including myself. My father Surappa Shetty had no partitioned his properties during his life time. We brothers and sisters have not divided the properties 18 left by my father after his death It is true that we the brothers and all the sisters having right in the property left by my father. We the brothers and sisters are in joint enjoyment of the properties left by my father.
Myself and my brother K.S.Venkatachalapathy have only executed the sale deed in favour of the plaintiff in respect of the suit schedule property my sisters have not joined for execution of the said sale deed either as a party or as a consenting witness. It is false to suggest that myself and my brother alone have no right, interest or authority to execute the sale deed in favour of the plaintiff in respect of the suit schedule property. Myself and my brother have filed O.s.No.6070/1995 the same is pending consideration. The CC of the plaint is at Ex.D.1. CC of the written statement filed by L.Rs of defendant No.1 in the said suit is at Ex.P2. "19
20. From such evidence, it is clear that deed of sale dated 18.11.2004 on which the respondent- plaintiff relies is executed only by two of the legal heirs of Surappa Shetty in which the other co-owners have not joined. It is also not in dispute that plaintiff had not filed a suit for declaration to declare he has acquired absolute right, title and interest in the property in occupation of the appellant/defendant from which he sought his eviction. The suit is valued by the plaintiff under the provisions of Section 41(2) of the Karnataka Court Fees and Suits Valuation Act, as the suit was for ejectment. The notice of termination of tenancy issued by the plaintiff on the strength of sale deed executed only by two of the legal heirs. No doubt, if the person acquires the property by way of sale or other modes prescribed by law, the tenancy of the occupant in the said premises will after such transaction, governed by provision of 20 Section 109 of the Transfer of Property Act and the lessee is deemed to be a tenant under the transferee of title. However, when a question arises as to whether the person has required the ownership of the property in question, an issue has to be raised for determination. It is further made clear that to seek decree for ejectment, no doubt it is maintainable on the basis of termination of tenancy envisaged under Section 106 of the Transfer of Property Act by the lawful owner, if the tenancy is subjected to any tenancy law, then the eviction has to be under the provisions of such act, in view of the protection granted to the tenants.
21. In the instant case, it is not in dispute that rent payable by the appellant/defendant is Rs.755/- per month. The plaintiff has claimed damages at Rs.1500/- from 1.5.2005, the date of termination of tenancy and also future mesne profits at Rs.5,000/- 21 per month. The plaintiff is silent as to why the plaintiff chose to file a civil suit and did not resort to eviction proceedings under the provisions of the Rent Act.
22. Sri. Gowri Shankar, learned counsel made an attempt to contend that filing of the suit was the only remedy, because the defendant had questioned the transfer of property in favour of the plaintiff. But, as could be seen from the material propositions in the pleadings of the defendant, he did not dispute he is a tenant in respect of the premises in question, he has been contending as he was inducted by the original owner Surappa Shetty as a tenant and after his demise, his legal heirs have succeeded to the estate and therefore the eviction is permissible only by all the co-owners. Since the plaintiff has purchased the property only from the two of the co-owners, he disputed his right to seek possession. 22
23. I am therefore satisfied that the suit filed by the plaintiff seeking only a decree for possession on the basis of entire ownership of the property was not the right course, as the defendant had not disputed he was the tenant in question. Since the appellant/defendant had consistently pleaded he is a tenant of the premises in question, the plaintiff could have resorted to eviction proceedings under the Rent Act and such action is permissible even in the absence of other co-owners joining in its action.
24. Lastly it has to be observed plaintiff had not sought for any declaratory decree, but merely sought for ejectment of the plaintiff/defendant. Since the rent was only Rs.755/- per month and it was less than Rs.25,000/-, the Small Cause Court had a jurisdiction to entertain the suit for ejectment, if it was not covered by the Rent Act. Had the plaintiff sought for 23 any decree in the nature of declaration declaring that appellant/defendant is his tenant or that he is the owner of property in question, a suit of this nature was maintainable in the Civil Court. That is not the relief sought by the plaintiff. I am satisfied that the Civil Court did not have a jurisdiction to entertain the suit.
25. The learned Judge has not noticed these aspects, consequent to which, the Trial Judge entertained the suit and based on his finding that the defendant was tenant under K.S.Lakshminarayana, decreed the suit. The judgment and decree is therefore unsustainable.
26. In the result, the appeal is allowed. However, the suit is remanded to the Trial Court to permit the plaintiff to seek appropriate relief and if he does so, then frame an issue as to whether the plaintiff had 24 acquired the ownership in respect of the entire property ; as to whether the sale deed executed by only two of the legal heirs of Surappa Shetty had conferred ownership in respect of the entire property by him and as to whether the suit for eviction in the Civil Court for ejectment, in view of applicability of protection available to the tenants under the provisions of the Karnataka Rent Act, 1999.
27. The Trial Court shall give opportunity for both sides to lead additional evidence, if so desired. The Trial Court shall re-consider the evidence and entire material on record de nova without being influenced by any observations made during the course of this order and decide the issues finally in accordance with law.
Sd/-
JUDGE Msu