Bangalore District Court
Mr. Shekar D vs Mrs. Nayagi on 5 June, 2020
IN THE COURT OF THE LXXII ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL BENGALURU, (CCH73)
Present:
Sri. AbdulRahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 5th day of June, 2020.
O.S.No.26443/2012
Plaintiff: Mr. Shekar D,
S/o Late Dhana Singh,
Aged about 66 years,
R/at No.986, 3rd Cross, 1st Block,
HRBR Layout, Bangalore560043.
[By Shobha BhavikattiAdv.]
V/s
Defendant: 1. Mrs. Nayagi,
Major, W/o Late M R Albert,
R/at No.28, Ground Floor,
Muneshwara Temple Street,
5th Main, Kariyanapalya,
Hennur Main Road,
St. Thomas Town Street,
Bangalore560084.
2. Smt. Mangalagowri @ Gowramma,
W/o V Rajagopal, Aged about 53 years,
R/at No.210/4, St. Jhons Church Road,
Bangalore560005.
[By SSR - Adv.]
[By DVS Adv.]
2
O.S.No.26443/2012
Date of Institution of the suit 21.07.2012
Nature of the (Suit or pronote,
suit for declaration and
possession, suit for injunction, Ejectment
etc.)
Date of the commencement of
25.08.2014
recording of the Evidence.
Date on which the Judgment was
pronounced. 05.06.2020
Year/s Month/s Day/s
Total duration 07 10 14
LXXII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
JUDGMENT
This suit is filed by the Plaintiff, initially against the Defendant No 1 seeking her ejectment from the Schedule premises and for future Mesne Profits. Subsequently the Defendant No 2 is impleaded, on her application.
1O.S.No.26443/2012
2. Facts of the Plaintiff's case are as under:
It is the case of the Plaintiff that, the Defendant No 2 is the absolute owner of the Property bearing House list No 481, V P Khata No 348, Site No 28, measuring East to West: 36 feet and North to South: 48 feet, consisting of ground and first level floors with super builtup area, situate at Kariyanapalya Muneshwara Temple Street, Hennur Main Road, Bangalore. The Defendant No 2 on 20.02.2002 leased the ground level floor to the Defendant No 1, by executing a Lease Agreement on 20.02.2002, whereunder the Defendant No 1 paid an amount of Rs 1,25,000/ to the Defendant No 2. The tenure for lease was for a period of two years. The said ground floor leased to the Defendant No 1, by the Defendant No 2 is shown as the Suit Schedule Property in this suit.
Further the Defendant No 2 sold the entire property bearing No 28, consisting of Ground and First Level floor to the Sri P Narayan & Mr Shridhar Shekar the son of the Plaintiff, by virtue of a Registered Saledeed dated 09.09.2002. The names of the purchasers where mutated in the records of the said property and khata pertaining to 2 O.S.No.26443/2012 the said property was transferred in the names of the purchasers.
Thereafter Sri P Narayana released his share infavour of Sri Shridhar Shekar by virute of a Registered Release Deed. Thus the son of the PlaintiffSri Shidhar Shekar became absolute owner of the said property and his name came to be mutated in the records of the said property, as an absolute owner thereof.
On 28.04.2008 Dr Sridhar Shekar met with an accident and passed away in Australia. During his lifetime, he had executed a Will and had bequeathed the Property bearing No 28, which includes the present Suit Schedule Property. infavour of the Plaintiff, who is his father. Thus the name of the Plaintiff came to be entered in the records of the said property.
Subsequently the BBMP has allotted Property Identification Number to the said property as PID No 94 24716 and the khata pertaining to the same is standing in his name.
From October, 2008 the Plaintiff insisted the Defendant No 1 to vacate the premises, but she intimated that she had paid an amount of Rs 2,50,000/ to the Defendant No 2 as Lease Money. Then the Plaintiff 3 O.S.No.26443/2012 permitted her to continue the same till 31.12.2011, till the rental amount is adjusted towards the said Lease Money of Rs 1,25,000/.
Since the Defendant No 1 did not vacate the premises, he got issued notice on 05.05.2012, terminating the lease of the Defendant No 1 and directed her to vacate the premises on or before 15.06.2012. Since the Defendant No 1 has failed to vacate the premises, inspite of termination of tenancy, so he is entitled for eviction of the Defendant No 1 as well as for Mesne Profits.
Further it is contended that a similar premises will fetch rentals of Rs 12,000/ pm. Thus the Plaintiff is constrained to file the present suit.
3. Suit summon was served to the Defendant No 1 initially on 11.02.2014, wherein the said Defendant was placed Exparte. Thereafter Defendant No 1 appeared through her counsel and filed her Written Statement on 16.01.2014.
The Defendant has denied all the allegations made in the plaint by the Plaintiff and specifically contended that, the Plaintiff is not the owner of the Suit Schedule 4 O.S.No.26443/2012 Premises and the present Defendant No 2 is the owner of the said premises and she had taken the schedule Premises on lease from the Defendant No 2. It is specifically denied that the Defendant No 2 has sold the said property to P Narayana and Shridhar Shekar and subsequently, P Narayana has released his share in the said property infavour of Sridhar Shekar and said Sridhar Shekar has executed Will infavour of the Plaintiff and thus the Plaintiff has become the owner of the said property. She has specifically contended that as such there is no tenant and landlord relationship inbetween the Plaintiff and the Defendant No 1, as such the Plaintiff has no any right to claim her eviction. Further she contends that if the Defendant No 2 pays the Lease Money to her, she will vacate the premises and give vacant possession to her.
Further she has contended that the Plaintiff has suppressed the said fact, that she had issued a reply notice to him, contending the said facts. Further the Plaintiff has suppressed the fact that the Defendant No 2 had filed a Suit for the relief of Declaration against the Plaintiff at OS No 26254/2008, pending on the file of the Additional City Civil & Sessions Judge Court (CCH20), Bengaluru.
5O.S.No.26443/2012 Further contended that the Plaintiff has not properly valued the Suit and has failed to pay necessary Court Fees. Thus prayed to dismiss the suit of the Plaintiff.
4. On the basis of the above said pleadings, my Learned predecessor in office, has framed the following issues on 29.04.2015 as under:
ISSUES
1. Whether the Plaintiff proves that his son Dr Sridhar Shekar was the owner of the suit schedule property as pleased in the paint para No 5?
2. Whether the Plaintiff proves that his son executed the WILL during his lifetime on 20.06.2007 infavour of the Plaintiff bequeathing the suit schedule property to the Plaintiff as pleaded in the para No 6 of the plaint?
3. Whether the Plaintiff proves that he has terminated the tenancy of the defendant by issuing the termination notice to the defendant?
4. Whether the defendant proves that there is no relationship of lessor and the leasee between the Plaintiff and the Defendant?6
O.S.No.26443/2012
5. Whether the defendant proves that the suit is not properly valued and the court fee paid is not proper?
6. Whether the Plaintiff is entitled for the relief claimed in the suit?
7. What decree or order?
5. Further the Defendant No 2 filed an application and got herself impleaded as Defendant No 2 in this Suit.
The Defendant No 2 has filed her Written Statement denying all the contentions takenup by the Plaintiff in the suit plaint. She has specifically contended that she had received the Property bearing No 28 from her maternal Uncle by virtue of a Registered Gift Deed dated 13.11.1997, but she has not sold the property to P Narayan and Sridhar Shekar, as contended by the Plaintiff. She further contends that she had taken a handloan of Rs 4,00,000/ from the wife of P Narayan, by name Venkatamma in the month of February 2001, out of the said amount, she had utilized Rs 1,00,000/ towards repayment of the loan amount and had kept Rs 3,00,000/ for the marriage of 7 O.S.No.26443/2012 her second daughter. Since she could not repay the said amount in time, she had executed Registered Sale Agreement on 16.03.2001 as security for repayment of the said amount, since the mortgage deed dated 01.03.2001 was an unregistered document. Further when she could not discharge the said amount, she agreed to execute and has executed a Nominal Sale deed infavour of the Plaintiff's son Dr Sridhar Shekar and P Narayana the husband of Venkatamma, but no valid title is passed to the Plaintiff, since no consideration amount is passed and possession is not delivered by virtue of the said document. So also the said document doesnot reflect the actual measurements and the building consisting thereon.
In March 2008, when this Defendant went to repay the amount of Rs 5,00,000/ to the Plaintiff's son and P Narayana, they refused to take the same and started contending that they have become the owner of the said property by virtue of the Registered Saledeed dated 09.09.2002. On enquiry she revealed that they have played fraud on her and thus she filed a suit at OS No 26254/2008 against Venkatamma, her husband P Narayana and the son of the present Plaintiff Dr 8 O.S.No.26443/2012 Shridhar Shekar. The said suit is pending for its adjudication.
Further she contends that there is no relationship of landlord and tenant nor there is any sought of relationship inbetween the Plaintiff and the Defendant No 1, so the Plaintiff cannot evict the Defendant No 1, from the suit schedule Property.
Hence prayed to dismiss the suit of the Plaintiff.
6. On the basis of the Written Statement of the Defendant No 2, my learned predecessor in office has framed Addl Issue on 07.11.2017, as under:
Addl. Issue framed on 07.11.2017
1. Whether Defendant No.2 proves that there is no relationship of landlord and tenant nor there is any sort of relationship to evict the first Defendant from the suit property?
7. The Plaintiff inorder to prove his case, got examined himself as PW.1 and has got marked 10 documents as ExP1 to ExP.10. PW1 was cross examined on behalf of the Defendant No 2 on 22.08.2019.
9O.S.No.26443/2012
8. On the basis of the pleadings, inorder to thrashout the real controversy inbetween the parties, this Court has frame Addl Issue No 2, on 25.10.2018, as under:
Addl. Issue No.2 framed on 25.10.2018
2. Whether the Defendant No.2 proves that she has executed Sale Deed dtd.09.09.2002 infavour of the son of the Plaintiff as a nominal Sale Deed and the same is not binding on her?
9. Per contra, the Defendant No 2 has got examined herself as DW.1 and got marked one document as Ex.D1. DW1 was cross examined on behalf of the Plaintiff on 05.02.2020. ExP11 and ExP12 documents were marked on confrontation to DW1.
10. The suit was initially allotted to CCH20. The case was transferred to this Court on 21.08.2018, by virtue of a notification No. ADMI(A) 413/2018 dated 31.07.2018 of the Principal City Civil and Sessions Judge, Bangalore.
10O.S.No.26443/2012
11. Heard the Arguments of the Learned Counsels for the Plaintiff and the Defendants, respectively. The learned counsel for the Plaintiff has relied upon the decision of the Hon'ble Apex Court, reported in (1997) 5 SCC 329.
12. My findings on the above said issues are as under:
Issue No 1 : In the Negative;
Issue No 2 : Becomes Reduntant;
Issue No 3 : Doesnot arise for consideration;
Issue No 4 : In the Affirmative;
Issue No 5 : In the Negative;
Issue No 6 : In the Negative;
Addl.Issue No 1 : In the Affirmative;
Addl.Issue No 2 : As per the decision in
RFA No 517/2019;
Issue No 7 : As per final order for the
following
:R E A S O N S:
13. ISSUE NOS. 1, 2, 4 AND ADDL ISSUE NO 1:
These these issues are taken for common discussion, as they are interlinked with each other and to avoid repetition, in the discussion.11
O.S.No.26443/2012 The Plaintiff contends that his son Dr Sridhar Shekar has purchased the suit schedule Premises; he during his lifetime has executed WILL dated 20.06.2007 in his favour bequeathing the said property and the Defendant No 1 is his tenant inrespect of the said Premises.
The Defendant No 1 contends that she is the tenant under the Defendant No 2, as the Defendant No 2 has taken Lease Amount of Rs 1,25,000/ from her and has executed Lease Agreement, the term period of the said lease is two years.
The Defendant No 2 contends that the Defendant No 1 is the tenant under her and she has not sold the suit schedule Premises either to the Plaintiff or to his son Dr Sridhar Shekar.
14. On the basis of contentions of parties to this suit, it remains an undisputed fact that:
a) the Defendant No 2 is the absolute owner of the Property bearing House list No 481, V P Khata No 348, Site No 28, measuring East to West: 36 feet and North to South: 48 feet, consisting of ground and first level floors with super builtup area, situate at Kariyanapalya 12 O.S.No.26443/2012 Muneshwara Temple Street, Hennur Main Road, Bangalore;
b) On 20.02.2002 the Defendant No 2 has leased the first level floor to the Defendant No 1, by executing a Lease Agreement on 20.02.2002, whereunder the Defendant No 1 paid an amount of Rs 1,25,000/ to the Defendant No 2. The tenure for the said lease, was for a period of two years;
c) the said ground floor leased to the Defendant No 1 by the Defendant No 2, is shown as the Suit Schedule Property, in this suit.
15. The disputed fact inbetween the parties are:
a) as to the ownership of the Suit Schedule property;
b) as to the attornment of tenancy of the Defendant No 1 infavour of the son of the Plaintiff and P Narayana, inturn infavour of the Plaintiff.
16. The Plaintiff contends that the Defendant No 2 has sold the property bearing House list No 481, V P Khata No 348, Site No 28, measuring East to West: 36 feet and North to South: 48 feet, consisting of ground and first level floors with super builtup area, situate at 13 O.S.No.26443/2012 Kariyanapalya Muneshwara Temple Street, Hennur Main Road, Bangalore, infavour of P Narayana and his son Dr Shridhar Shekar by virtue of a Registered Saledeed dated 09.09.2002. Thereafter P Narayana has executed Release Deed infavour of his son Dr Shridhar Shekar on 07.10.2004. After the death of Dr Shridhar Shekar, he became the owner of the said property, by virtue of a Will dated 20.06.2007.
17. The Plaintiff had produced the Original Registered Saledeed dated 09.09.2002 at ExP1. (Subsequently the Plaintiff got the said document returned, by substituting the same with its Certified Copy, as per the orders dated 25.01.2018). As per this document it can be seen that the Defendant No 2 has executed the sale deed inrespect of the Property bearing House list No 481, V P Khata No 348, Property No 124/1, Site No 28, situated at Kariyanapalya, Kacharkanahalli Dhakle, Kasba Hobli, Bangalore North Taluk, now assigned as Corporation No 16, 5th 'A' Main Kariyanapalya, Ward No 94, Bangalore Mahanagar Palike, measuring towards East: 36 feet; towards West: 36 feet; towards North: 48 feet and 14 O.S.No.26443/2012 towards South: 48 feet, alongwith Two square A C Sheet house, within the boundaries:
East by : Road;
West by : Property No 27/A;
North by : Property No 29/A;
South by : Road.
Infavour of P Narayana and Sri Sridhar Shekar, for the valuable consideration of Rs 3,34,500/. Further this document evidences that the said consideration amount of Rs 3,34,500/ is paid by the purchasers to the seller (as per clause No 1 at Page No 4 of this document); and the possession of the said property is delivered to the purchasers (as per last clause at Page No 6 of this document).
18. Per contra, the Defendant No 2 contends that she has executed the Saledeed dated 09.09.2002 as Nominal Saledeed, for the purpose of security of the handloan availed by her, without divesting any rights infavour of the purchasers, without delivering the possession, without any consideration amount and the property under the sale deed is not properly described.
15O.S.No.26443/2012
19. Coming to the ocular evidence on this point, more specifically, cross examination of DW1 at Page No 10, Para No 3 & 4, which read as under:
"Now I see my signatures on Ex.P.1 Sale Deed, on confrontation and admission the said signatures are marked as Ex.P.1(A) to Ex.P.1(H). Now, I see my photo on Ex.P.1, the said photo is marked as Ex.P.1(J).
I am having two daughters viz.,
Rupa and Divya. My both the
daughters have affixed their
respective signatures as witnesses to Ex.P.10 Sale Deed".
As per this evidence, the Defendant No 2 admits her signatures on ExP1Saledeed dated 09.09.2002, as per ExP1(A) to ExP1(H). Further she admits that her both the daughters Rupa and Divya have also affixed their respective signatures on ExP1Saledeed dated 09.09.2002, as witnesses.
a) withregard to consideration:
The Learned Counsel for the Defendant No 2 would contend that the Defendant No 2 had executed a Registered Agreement of Sale dated 16.03.2001, as security and as per the said Agreement of Sale, total 16 O.S.No.26443/2012 consideration amount is shown as Rs 8,00,000/, out of which an amount of Rs 4,00,000/ is shown to have been given as advance amount to the Defendant No 2.
The certified copy of the Registered Agreement of Sale is got confronted to DW1/Defendant No 2, during her cross examination, the relevant portion is seen in the Cross examination of DW1, at Page No 10, Para No 2, which reads as under:
" Now the certified copy of an agreement of sale dt.16.03.2001 is shown to the witness and questioned.
Is it this Agreement which she had executed infavour f Smt. Venkatamma W/o Narayana on 16.03.2001. Witness replies in the affirmative. On confrontation and admission the said document is marked as Ex.P.12. Now, I see my signatures found on each page of Ex.P.12, the said signatures are marked as Ex.P.12(A) to Ex.P.12(E)".
As per this evidence, it is seen that the Defendant No 2 admits that she has executed an Agreement of Sale dated 16.03.2001 infavour of Smt Venkatamma W/O: P Narayana and she has admitted her signatures of the said documentExP12, as per ExP12(A) to ExP12(E).17
O.S.No.26443/2012 On careful perusal of the said document, more specifically Clause No 1 at Page No 2 of the said document, it is seen that total consideration amount fixed under the said transaction is Rs 8,00,000/. And as per Clause No 2 at Page No 2 of the said document, it is seen that an amount of Rs 4,00,000/ is paid to the Defendant No 2 by Venkatamma W/O: P Narayana as an advance amount. And as per Clause No 3 at Page No 2 of the said document, it is seen that she had agreed to pay balance amount of Rs 4,00,000/ within 18 months from the day of the agreement.
So as per ExP12Registered Agreement of Sale dated 16.03.2001, the consideration amount is fixed at Rs 8,00,000/ in the year 2001, but whereas as per ExP1 Saledeed dated 09.09.2002, the consideration amount is fixed at Rs 3,34,500/ in the year 2002. The former document is infavour of the Venkatamma, who is the wife of the the first purchaser, under the latter document. So the consideration shown under the Registered SaleDeed dated 09.09.2002ExP1 is less then the one shown under the Registered Agreement of Sale dated 16.03.2001 ExP12.
18O.S.No.26443/2012
b) with regard to possession:
Coming to the ocular evidence on this point, more specifically, Cross examination of PW1 at Page No 8, Para No 1, Line Nos 3 to 6, which reads as under:
"....... It is true to suggest that possession of the suit schedule property was not given to my deceased son at the time of registration of registered sale deed in his favour. ..."
As per this evidence, the Plaintiff admits that the possession of the suit schedule property was not given on the day of sale.
Further as per the Cross examination of DW1, at Page No 9, Para No 2, which read as under:
" At present I am residing in the said premises at 1st level floor. Ground floor of the said premises is given on lease basis to one Nandini for Rs.10,00,000/".
As per this evidence, the Defendant No 2 contends that at present she is residing at the Ist Floor and she has given the Ground floor on lease basis to one Nandini for Rs 10,00,000/. It shows that the Defendant No 2 is in possession of the entire property. So as per the Saledeed 19 O.S.No.26443/2012 dated 09.09.2002ExP1 possession is not given to the purchasers.
c) withregard to recital of structure in Saledeed dated 09.09.2002ExP1:
On careful perusal of the Saledeed dated 09.09.2002ExP1, there is no mention that the property under purchase consists of ground level and the first level floor.
Coming to the ocular evidence on this point, more specifically, Cross examination of PW1 at Page No 8, Para No 1, Line Nos 6 to 9, which reads as under:
"....... It is true to suggest that at the time of registration of sale deed infavour of my deceased son, there is no mentioned about the structure over the suit schedule property. ..."
As per this evidence, the Plaintiff admits that there is no mention about the structure over the schedule property.
Further as per the Cross examination of DW1, at Page No 9, Para No 3, which read as under:
"Now a positive photograph is shown to the witness and questioned whether 20 O.S.No.26443/2012 the building seen in the said photograph is her residential building. Witness replies in the affirmative. On confrontation and admission the said photograph is marked as Ex.P.11. It is true to suggest that we are constructing a bathroom on the 2nd level floor, which can be seen in Ex.P.11 It is true to suggest that the present suit is filed by the Plaintiff inrespect of the property, seen in Ex.P.11."
As per this evidence, a positive photograph is confronted to DW1/Defendant No 2 in her cross examination, wherein her residential building is seen. DW1 admits the same and the same is marked as ExP11. Further she admits that she is constructing a bathroom on the 2nd level floor and the present suit pertains to the said property.
On perusal of ExP11Positive Photograph, it is seen that a double storied building is seen, consisting of ground and first level floor. Further it is not the case of anyone of the parties that subsequently the building is constructed. When this photograph is confronted and admitted by DW1, then it remains admitted fact from both the sides that the property which the Plaintiff claims that his son has purchased, consists of ground and first level floors.
21O.S.No.26443/2012
d) withregard to passing of the title of the property:
(i) The Defendant No 2 contends that she has not transferred the right of ownership under the registered Saledeed dated 09.09.2002ExP1.
Coming to the ocular evidence, more specifically, Cross examination of DW1, Page No 10, Para No 1, which reads as under:
"It is false to suggest that I have sold the Suit Schedule Property to Dr. Shridhar as per Ex.P.1."
As per this evidence, Defendant No 2 denies the suggestion made to her, that she has sold the Suit schedule property to Dr Shridhar as per ExP1.
So the title of the Plaintiff is denied by the Defendant No 2.
(ii) Further the Plaintiff has produced Reply to the notice issued by the Defendant No 1, at ExP9. As per para No 2, Line Nos 4 to 10, the Defendant No 1 has denied that she is the tenant under the son of the Plaintiff or under the Plaintiff, but has specifically contended that she 22 O.S.No.26443/2012 and her daughter Marry Fatima Charles are the tenants under the Defendant No 2.
So the title of the Plaintiff is denied by the Defendant No 1, as well.
e) withregard to attornment of tenancy:
The Learned Counsel for the Defendant No 2 would contend that the tenancy of the Defendant No 1 has not been attorned either to the Plaintiff or to his deceased son.
Coming to the ocular evidence on this point, more specifically, cross examination of PW1 at Page No 8, para No 2, Line Nos 3 to 5, which reads as under:
"........It is true to suggest that the relationship inbetween the Defendant No.2 and the Defendant No.12, is not that of a landlord and a tenant. ......"
As per this evidence, the Plaintiff admits that relationship inbetween the Defendant Nos 1 & 2 is not that of the landlord and a tenant.
So as per this ocular evidence and in the absence of any documentary evidence, it can be concluded that the tenancy of the Defendant No 1 is not attorned by the Defendant No 2, infavour of the son of the Plaintiff.
23O.S.No.26443/2012 The Learned Counsel for the Plaintiff would contend that attornment of tenancy is not required and has placed her reliance on the decision of the Hon'ble Apex Court in the case of Mahendra Raghunathdas Gupta Vs Vishvabath Bhikaji Mogul and Others, reported in (1997) 5 SCC 329, and has emphasis her reliance to Para No 6(e) of the said judgment, which reads as under:
"It is well settled that a transferee of the landlord's right steps into the shoes of the landlord with all the rights and liabilities of the transferor landlord inrespect of the subsisting tenancy. The section doesnot require that the transfer of the right of the landlord can take effect only if the tenant attorns to him. Attornment by the tenant is not necessary to confer validity of the transfer of the landlord's rights. Since attornment by the tenant is not required a notice under section 106 in terms of the old terms of lease bt the transferor landlord would be proper and so also the suit for ejectment."
As per Para No 7 of the said Judgment, which reads as under:
"7.Attornment would, however, be desirable as it means the acknowledgement of relation of a tenant to a new landlord. It also implies continuity of tenancy."24
O.S.No.26443/2012 Thus it is clear that attornment by the tenant is not necessary to confer validity of the transfer of the landlord's rights, but as per Para No 7 of the said Judgment, attornment of tenancy by the landlord to its transferee is desirable, for the purpose to have acknowledgment of relation of a tenant to a new landlord and for continuity of tenancy.
Applying the above principles of law to the instant case at hand, when the tenancy of the Defendant No 1 is not attorned to the son of the Plaintiff or to the Plaintiff, coupled with special facts of denial of ownership of the son of the Plaintiff or/and the Plaintiff, then there is no acknowledgement of relation of tenant and landlord inbetween the Plaintiff or his son on one hand and the Defendant No 1, on the otherhand.
f) withregard to the execution of Will:
When the Plaintiff has failed to claim and show as to the ownership of his son over the Suit Schedule Property, consideration as to execution of Will in his favour, by his son, will be a consequential aspect. Further the Plaintiff 25 O.S.No.26443/2012 has not averred about execution of Will by his son in OS No 26254/2008, who was the Defendant No 3(A), therein. Hence Issue No 2 becomes Redundant.
Thus the Plaintiff has failed to prove that the Defendant No 1 is the tenant under him, inrespect of the Schedule Premises, consequently the Defendant No 2 has proved that there is no relationship of landlord and tenant, inbetween the son of the Plaintiff or the Plaintiff and the Defendant No 1. HENCE I AM CONSTRAINED TO ANSWER ISSUE NO 1 IN THE NEGATIVE; ISSUE NO 2 AS REDUNDANT; ISSUE NO 4 IN THE AFFIRMATIVE AND ADDL ISSUE NO 1 IN THE AFFIRMATIVE.
20. ISSUE NO 2:
The Plaintiff has produced Notice issued to the Defendant No 1 to quit and handover possession of the premises by terminating the tenancy, as per ExP8.
But when the ownership of the son of the Plaintiff, inturn the Plaintiff is denied and when the Plaintiff has failed to prove the existence of relation inbetween him and the Defendant No 1, as that of a Landlord and tenant, then issuance of such termination notice, will be no avail.26
O.S.No.26443/2012 Hence, I ANSWER ISSUE NO 3 AS DOESNOT ARISE FOR CONSIDERATION.
21. ADDL ISSUE NO 2:
The Defendant No 2 contends that she has executed the Registered Saledeed dated 09.09.2002 infavour of the son of the Plaintiff and P Narayana, as a nominal sale deed.
22. The Defendant No 2 has produced the certified copy of the Judgment and Decree passed in OS No 26254/2008 at ExD1 & ExD2. As per these documents it is seen that the present Defendant No 2 had filed a suit for the relief of Declaration to declare the Saledeed dated 09.09.2002 executed by her infavour of the son of the present Plaintiff and one P Narayana, as Nominal Sale deed. The said suit came to be decreed on 14.12.2018 declaring the Saledeed dated 09.09.2002 executed by the present Defendant No 2 infavour of the son of the present Plaintiff and one P Narayana, as Nominal Saledeed and not binding on her, consequently the said saledeed stands cancelled.27
O.S.No.26443/2012
23. The Learned Counsel for the Plaintiff would contend that the said Judgment and Decree is challenged by the present Plaintiff who was the Defendant No 3(A) in that suit, before the Hon'ble High Court of Karnataka, Bengaluru in RFA No 517/2019, which is pending for its adjudication.
Coming to the ocular evidence on this point, more specifically, cross examination of PW1 at Page No 12, Para No 2, which reads as under:
" It is true to suggest that Defendant No.2 had filed a suit at O.S.No.26254/2008, against my son for cancellation of the Registered Sale Deed executed by her infavour of my son and to get declare her ownership over the Suit Schedule Property. It is true to suggest that I have deposed in that suit as DW.1. It is true to suggest that the said suit was decreed by the Trial Court . Iot is true to suggest that I have preferred an appeal before the Hon'ble High Court of Karnataka at RFA No.517/2019, challenging the said judgment and decree passed in O.S.No.26254/2008. It is true to suggest that the said RFA No.517/2019 is pendinjg for its admission. It is true to suggest that 28 O.S.No.26443/2012 no any order is passed by the Hon'ble High Court of Karnataka in RFA No.517/2019 staying the execution and operation of the judgment and decree passed in O.S.No.26254/2008. It is false to suggest that in view of decreeing the suit of the Defendant No.2 at O.S.No.26254/2008, the present suit is not maintainable."
As per this evidence, PW1 admits that the Defendant No 2 had filed a suit at OS No 26254/2008, against his son for cancellation of saledeed executed by her. Further he admits that he has deposed in the said suit as DW1; the said suit came to be decreed infavour of the present Defendant No 2 and he has preferred Regular First Appeal before the Hon'ble High Court of Karnataka at RFA No 517/2019 and the same is pending for its adjudication and the said Judgment and Decree is not stayed in the said appeal.
Further as per cross examination of DW1 at Page No 10, Para No 5, which reads as under:
"I have filed a suit at O.S.No.26254/2008. The said suit came to be decreed as per the JudgmentEx.D.1. The said judgment is challenged by the present Plaintiff 29 O.S.No.26443/2012 before the Hon'ble High Court of Karnataka in RFA No.517/2008".
As per this evidence, Defendant No 2 contends that she had filed Original Suit at OS No 26254/2008, the said suit came to be decreed and the present Plaintiff has challenged the same and has preferred an appeal at RFA No 517/2008, before the Hon'ble High Court of Karnataka.
24. So when a Judgment and Decree is passed in OS No 26254/2008 and the same is challenged before the Hon'ble High Court of Karnataka, Bengaluru in RFA no 517/2019, which is pending for its adjudication, under such circumstances, this Court cannot express its opinion on the said issue, as the same is seized before the Hon'ble High Court of Karnataka.
Hence I am constrained to answer ADDL ISSUE NO 2 AS, AS PER THE DECISION IN RFA NO 517/2019.
25. ISSUE NO 5:
The Learned Counsel for the Defendant No 2 would contend that the Plaintiff has not valued the suit properly and has not paid the Court Fees, as per law.30
O.S.No.26443/2012 As per Sec. 41(2) of the Karnataka Court Fees and Suit Valuation Act, which reads as under:
"41. Suits between Landlord and Tenant (1) xxxxx (2) In a suit for recovery of a immovable property from a tenant including a tenant holding over after the termination of a tenancy, fee shall be computed on the premium, if any, and on the rent payable for the year next before the date of presenting the plaint."
The Plaintiff has filed this present suit for eviction of the Defendant No 1 contending that, the Defendant No 1 was the tenant under his landlordship and filed the present suit for the recovery of possession; arrears of rent; and Mesne Profit.
As per the decision of the Hon'ble High Court of Karnataka, in the case of Bhimgowda Mallikarjunagowda V/s Golanagouda, reported in 1970 (2) Mysore Law Journal, 262 wherein it is held that:
"For the purpose of quantification of the Court Fees payable, the Court should look 31 O.S.No.26443/2012 into the allegations in the Plaint, whatever may be the allegations in the Written Statement. The nature of the suit should be adjudged by what the Plaintiff says and not by what the Defendant says. When the Plaintiff case was that, the Defendants were his tenants and that they were liable to be evicted, but the Defendants denied the tenancy and setup their own title, the suit being one brought on the basis of a lease, Court Fee is payable only under Sec.41(2) of the K.C.F. & S.V.Act."
Applying the above principles of Law to the present set of facts, it can be seen that, the case of the Plaintiff is that, the Defendant No 1 is his tenant and she is liable to be evicted. Though the Defendant No 1 has denied the tenancy setup by the Plaintiff but has not setup its own title over the Suit Schedule Premises. Under such circumstances, the Plaintiff having paid the Court fee U/Sec. 41(d) of the Karnataka Court Fees and Suit Valuation Act, by valuing the Suit Plaint. Valuation made by the Plaintiff is proper and the Court Fee paid by the Plaintiff is also proper, on the basis of the Plaint averments. Thus, the contention raised by the Learned Counsel for the Defendant No 2, cannot be accepted.
32O.S.No.26443/2012 Hence I am constrained to answer ISSUE NO 5 IN THE NEGATIVE.
26. ISSUE NO 6:
The Learned Counsel for the Defendant No 2 would contend that the present suit filed by the Plaintiff is not maintainable, as the Plaintiff has not claimed declaration of his title, in this suit, since both the Defendants have denied his title as well as the title of his son.
As already discussed by this Court, supra while discussing the relationship of the Plaintiff with the Defendant No 1 as Landlord and Tenant, in addition to the said discussion, further it can be seen that when the Plaintiff had received a Reply from the Defendant No 2, as per ExP9; and when the Defendant No 2 had filed a suit for declaration, to declare the saledeed dated 09.09.2002, as Nominal saledeed and for cancellation of the same, under such circumstances, the Plaintiff ought to have claim the declaration of his Title over the schedule Property.
27. As per the decision of the Hon'ble Apex Court, in the case of Maria Margarida Sequeria 33 O.S.No.26443/2012 Fernandes and Others Vs Erasmo Jack de Sequeria (Dead) through his Lrs; wherein it is observed at Para Nos 66 & 68 of the said Judgment, which reads as under:
"66. A title suit for possession has two parts first adjudciation of title and second adjudication of possession. If the title dispute is removed and the title is established in one or the other, then, in effect, it becomes as suit for ejectment where the defendant must plead and prove, why he must not be ejected.
68. ...... Once the title is prima facie established, it is for the person who is resisting the title holder's claim to possession to plead with sufficient particularity on the basis of his claim to remain in possession and place before the Court all such documents as in the ordinary course of human affairs are expected to be there."
28. Relying the above said preposition of law to the instant case at hand, when primafacie the title of the 34 O.S.No.26443/2012 Plaintiff is denied by the Defendants, then the present suit filed by the Plaintiff for the relief of mere eviction, is not maintainable, in the absence of seeking the relief of Declaration of his title, as a main relief.
29. Further the Learned Counsel for the Defendant No 2 would contend that the Plaintiff is not the only heir of his son, but there are other heirs like his wife (wife of the Plaintiff) and daughter in law of the Plaintiff, who will also be legal heir of his deceased son.
30. As per the decision of the Hon'ble High Court of Karnataka, in the case of Bheemanagowda (Dead) by Lrs., V/s Syed Murtuzakhadri Sujjadanasheen and Another, reported in 1995 (4) KLJ 399; wherein it is held that;
"Suit by one coowner is maintainable for recovery of Possession of property against the stranger. Decree would enure to all the coowners. Coowner has right, title and interest in every part and parcel of joint property. Coowner cannot be treated as partowner. Coowner becomes partowner only on Partition and Division by metes and bounds".35
O.S.No.26443/2012 Further as per the decision of the Hon'ble Apex Court in the case of Mohinder Prasad Jain V/s Manoharlal Jain, reported in AIR 2006 SC 1471; wherein it is held in Para No.11 that;
"A suit filed by coowner, thus, is maintainable in law. It is not necessary for the coowner to show before initiating the eviction proceedings that he had taken option or consent of the other coowners".
Applying the above principles of law as well as placing the reliance on the decision of the Hon'ble Apex Court in the case of A. Viswanatha Pillai & Others V/s Spl. Tahasildar for Land Acquisition No.IV & Others reported in AIR 1991 SC 1966, wherein it is held that;
"It is settled law that, one of the co owners can file a suit and recover the property against the strangers and the Decree would enure to all the coowners. It is equally settled law that, no coowner has definite right, title and interest in any particular item or a portion thereof. On the other hand, he has right, title and interest in every part and parcel of the joint property".36
O.S.No.26443/2012 As well as placing the reliance on the decision of the Hon'ble Apex Court, in the case of Sri. Ram Pasrich V/s Jagannath & Others, reported in AIR 1976 SC 2335; as well as in the case of Pal Singh V/s Sunder Singh (Dead) By Lrs., & Others; reported in AIR 1989 SC 758; wherein it is held that;
"A coowner is as much an owner of the entire property as a sole owner of the property. He owns several parts of the composite property alongwith others and he cannot be said that he is only a part owner or a fractional owners in the property. Dispossession will undergo a change only when Partition takes place and division was effected by metes and bounds".
In the instant case, suit filed by the Plaintiff as one of the coowners will be maintainable, provided that he would have proved his relationship with that of the Defendant No 1, as Landlord and Tenant; and would have proved his title over the same.
31. Further the Learned Counsel for the Defendant No 2 would contend that the Plaintiff has purposely 37 O.S.No.26443/2012 suppressed filing of the suit, by the present Defendant No 2 at OS No 26254/2008, in this suit.
On close perusal of the pleadings of the Plaintiff in this suit, the Plaintiff has not pleaded about the filing of the suit by the present Defendant at OS No 26254/2008. There is suppression of material fact from the side of the Plaintiff.
32. Further the Learned Counsel for the Defendant No 2 would contend that the present suit filed by the Plaintiff for eviction of the Defendant No 1, is not maintainable, as the transaction inbetween the Defendant Nos 1 & 2 is not that of a Lease but a Mortgage. Accordingly, the Plaintiff ought to have filed a suit for the relief of Foreclosure/Redemption of Mortgage.
33. On the basis of the contentions of the parties, it can be seen that there was a transaction inbetween the Defendant Nos 1 & 2, wherein the Defendant No 1 had paid a security deposit amount to the Defendant No 2, for transferring the right to enjoy the schedule property.
38O.S.No.26443/2012 As per the decision of the Hon'ble High Court of Karnataka reported in AIR 1985 Kant 56, in para No 13 of the said Judgment it is held that, "The provisions contained in Section 105 of the Transfer of Property Act read in the light of the decision of the Supreme Court cited above, bring about the distinction between a price paid for a transfer of right to enjoy the property and the rent to be paid periodically to the lessor. When the interest of the lessor is parted with, for a price, the price paid is the premium or salami. But the periodically payments made for the continuous enjoyment of the benefits under the lease are in the nature of rent. There may be circumstances where the parties may camouflage the real nature of the transfer by using clever phraseology. In some cases the so called premium is in fact advance rent and in others rent is deferred price. It is not the form but the substance of a transaction that matters. The nomenclature used may not be decisive or conclusive, but it helps the Court having regard to the other circumstances to ascertain the intention of the parties. Vide: Commr of Income Tax, Assam Vs Panbari Tea Co., Ltd."
39O.S.No.26443/2012 Applying the above preposition of law to the instant case at hand, it can be seen that the the Defendant No 1 has paid an amount of Rs 2,50,000/ to the Defendant No 2, a price for transfer of right to enjoy the schedule property, so the said price paid is premium, as explained under Section 105 of T P Act.
Thus, I do not find any substance in the submission of the Learned Counsel for the Defendant No 2, to contended that it is a Mortgage and a suit for Foreclosure or Redemption of Mortgage was to be filed by the Plaintiff.
34. Inorder to conclude, it can be said that when the Defendants have denied the title of the Plaintiff and his son over the suit schedule property, then the Plaintiff ought to have claimed the relief of Declaration of his title. Hence the present suit filed by the Plaintiff is not maintainable.
35. Since the Plaintiff has failed to prove his title; relationship of Landlord and tenant, with the Defendant No 1; failed to prove attornment of tenancy by the Defendant No 2 of the Defendant No 1, infavour of his son or in his favour; Possession of the Defendant No 1 over the Schedule Property, then the Plaintiff will neither 40 O.S.No.26443/2012 be entitle for the relief of Ejectment of the Defendant No 1 from the Suit Schedule Property nor for the relief of Mesne Profits.
Hence I answer ISSUE NO 6 IN THE NEGATIVE.
36. ISSUE NO.7:
For having answered the Issues, I proceed to pass the following:
ORDER Suit of the Plaintiff is hereby Dismissed.
Looking to the special facts of the case, all the parties are directed to bear their respective expenses.
Draw decree accordingly.
(Dictated to the Judgment Writer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me in the open court on this the 05th day of June, 2020.) [AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) 41 O.S.No.26443/2012 SCHEDULE:
All that piece and parcel of the ground floor having a super built up area of more than eight (8) sqs, in the property bearing No.28, situated at Muneshwara Temple Street, 5th 'A' Main, Kariyanapalya, Hennur Main Road, St.Thomas Town Post, Bangalore560084 now coming under the limits of BBMP, and assigned as Corporation No.16, 5th A Main Road, Kariyanapalya Word No.94, Bangalore measuring East to West 36 feet and North to South 48 feet.
East by : Road.
West by : Property No.27A;
North by : Property No.29A;
South by : Road.
[AbdulRahiman. A.Nandgadi]
LXXII Addl.City Civil & Sessions
Judge, Bengaluru. (CCH73)
42
O.S.No.26443/2012
ANNEXURES:
LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1: Mr. Shekar D. LIST OF EXHIBITS MARKED FOR THE PLAINTIFFS:
Ex.P1: Certified Copy of the Registered Sale Deed dated 09.09.2002. Ex.P2: Certified Copy of the Khatha Certificate.
Ex.P3: Certified Copy of the Release Deed dated 07.10.2004.
Ex.P4: Certified Copy of the Khata Certificate. Ex.P5: Certified Copy of the Khata Extract. Ex.P6: Certified Copy of the Khatha Certificate. Ex.P7: Certified Copy of the Tax paid receipt. Ex.P8: Legal notice dated 05.05.2012. Ex.P9: Reply notice dated 26.06.2012. Ex.P10: Certified Copy of WILL dated 20.06.2007. Ex.P11: Positive Photograph (Confronted to PW1). Ex.P12: Certified Copy of Registered Sale Agreement dated 16.03.2001 (Confronted to PW1).
LIST OF WITNESSES EXAMINED FOR THE DEFENDANT:
DW.1: Mangalagowri @ Gowramma.
LIST OF EXHIBITS MARKED FOR THE DEFENDANT:
Ex.D1: Certified copy of Judgment passed in OS No.26254/2008.
[AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73)