Karnataka High Court
M/S M K Collection vs Smt Lakshmamma on 14 March, 2012
Author: C.R.Kumaraswamy
Bench: C.R. Kumaraswamy
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF MARCH, 2012
BEFORE
THE HON'BLE MR.JUSTICE C.R. KUMARASWAMY
R.F.A. NO. 229 OF 2012
BETWEEN:
M/S M. K. COLLECTION,
REPRESENTED BY ITS PROPRIETOR,
SRI MUJIBULLA KHAN,
NO. 153, GROUND FLOOR,
D. V. 0. ROAD, GANDHI BAZAAR,
BANGALORE 560 004.
-
. . .APPELLANT
(BY SRI R. VIJAYA KUMAR FOR SRI K. S. RAMESH, ADV.)
AND:
SMT. LAKSHMAMMA,
W/O LATE B. S. GOVINDARAJU,
AGED ABOUT 62 YEARS,
RESIDING AT NO. 5, 3RD CROSS,
II MAIN ROAD, WILSON GARDEN,
BANGALORE 560 027.
-
. . . RESPONDENT
(BY SRI AMIT MANDGI FOR MANDGIR ASSOCIATES, ADV..)
****
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 11.11.2011 PASSED IN 0. S. NO.
569 1/2006 ON THE FILE OF THE XLIV. ADDL. CITY CIVIL &
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SESSIONS JUDGE, BANGALORE, DECREEING THE SUIT
FOR EJECTMENT.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This Regular First Appeal is filed under Section 96 of Code of Civil Procedure against the judgment and decree dated 11.11.2011 passed in O.S. 5691/2006 on the file of the XLIV-Addl. City Civil and Sessions Judge, Bangalore, decreeing the suit for the ejectment.
2. The parties will be referred to with reference to the status in the trial court.
3. Plaintiff is the owner in possession of all that piece and parcel of the immovable property bearing No.153, Ground floor, D.V.G. Road, Basavangudi, Bangalore - 560 004. Originally the entire property bearing No.153 belongs to Y V Shyamappa, the father-in-law of the plaintiff. The said Y V Shyamappa who died on 1995 bequeathed the suit schedule property to B G Sridhar viz., plaintiffs son. The said B G (V 3 Sridhar was not married and died intestate on 01.03.2001. After the death of Sridhar, the suit schedule property devolved upon the plaintiff alone as class I legal heir of late Sridhar. The plaintiff husband passed away on 14.6.2005. The defendant had approached late B G Sridhar who is the son of plaintiff for lease of the suit schedule property. The defendant had offered to take the suit schedule premises on lease on month to month basis. Accordingly, the plaintiff's son late B Cl Sridhar during his life time put the defendant in possession on the above mentioned premises with effect from the year 2000 and the monthly rent for the suit schedule premises at that point of time was Rs. 10,000/- per month.
4. Subsequent to the death of Sridhar, the suit schedule property devolved on the plaintiff being the class I legal heir of Sridhar. The plaintiff's husband also passed away on 14.6.2005. No other person except the plaintiff is entitled to collect rents and other profits arising out of the suit schedule property as the plaintiff is the class I legal heir of late B 0 4 Sridhar. After the death of B 0 Sridhar the defendant stopped paying rents. The defendant has failed to pay the rents in favour of the plaintiff. The defendant is setting up title in favour of some third parties. That, after the death of B 0 Sridhar the defendant is claiming that one Smt. Suvarna is alleged Power of Attorney holder of the plaintiff's husband i.e., B S Oovindaraju has been receiving rents from him. The plaintiff has not authorized the said Smt. Suvarna to collect rents from the suit schedule property. The defendant is hand in glove with Suvarna and one Chandrashekar who is total stranger to the plaintiff family. The plaintiffs late husband has not executed any Power of Attorney as claimed by Smt. Suvarna. The plaintiff's husband by abundant caution had revoked alleged Power of Attorney on 20.12.2002. The plaintiff is entitled to receive rents from the suit schedule property in occupation of the defendant. The defendant has not paid rents after the death of B G Sridhar. The defendant was called upon vide notice dated 5.4.2005 by a notice issued by plaintiffs husband to atom the tenancy and to pay rents.
£7 5 The defendant has sent an untenable reply by a notice dated 12.5.2005 setting up title in the name of one S Chandrashekar who is an utter stranger. The defendant has not stated in the reply notice the manner in which the defendant has become tenant under Chandrashekar and how he is related to late B G Sridhar. The defendant has set up title in the third person. Therefore, the lease in favour of the plaintiff is determined under Section 111(g) of the Transfer of Property Act by way of forfeiture. The plaintiff determined the lease vide the registered notice dated 28.10.2005 under Section 106 of the Transfer of Property Act. The said notice was duly served on the defendant on 8.11.2005. The tenancy in favour of the defendant stood terminated w.e.f. 23.11.2005.
5. The plaintiff is not interested in continuing the defendant's tenancy and has sent a legal notice dated 28.10.2005 under Section 106 of the Transfer of Property Act terminating the lease of the defendant. This has been duly 6 served on the defendant on 8.1 1.2005 and the acknowledgement is produced along with the plaint. The defendant has sent an untenable reply to the said legal notice, Therefore the plaintiff prays for a judgement and decree of ejectment against the defendant and also for mesne profits.
6. The defendant has filed written statement in the court below as under:
The suit is not maintainable. Plaintiff is not the owner of the suit schedule property. There is no jural relationship between the parties. Y V Shvamappa was the father-in-law of the plaintiff. Y V Shyamappa has bequeathed the suit schedule property to the plaintiff's son who died intestate and after his death property devolved upon the plaintiff alone as class 1 legal heir is not known to this defendant. The averments made at para 4 that the monthly rent with effect from year 2000 was Rs.10,000/- per month is false, The averments made at para 6 that this defendant was called 7 upon to attorn the tenancy and to pay rents by way of notice dated 5.4.2005 was suitably replied by this defendant on 12.5.2005. The tenancy of this defendant is not determined under section 111(g) of T.P. Act. The defendant is not a trespasser. The notice dated 28.10.2005 was suitably replied by the defendant, There is no cause of action, The defendant states that he is a tenant under one Ms. Suvarna, D/o late Y V Shyamappa. He is paying a monthly rent of Rs.2,000/ to her. Ms. Suvarna is the absolute owner of the suit schedule property after the death of Mr. B G Sridhar. The occupation of this defendant is lawful. There is no jural relationship between the parties to the suit and as such question of attorneying the tenancy and paying rents to the plaintiff does not arise.
7, On the above pleadings the trial court has framed the following issues:
1. Whether plaintiff proves that she is the owner of the suit schedule premises, as alleged?8
2. Whether plaintiff proves that defendant is the tenant of her and thereby there is relationship of lessor and lessee?
3. Whether defendant proves that it is a tenant under one Ms. Suvarna D/o late Y V Shyamappa?
4. Whether plaintiff proves that tenancy of the defendant has been terminated and said termination is proper and valid one?
5. Whether plaintiff is entitled to the reliefs sought for?
6. What order or decree?
Additional issue - whether the suit is maintainable in law?
8. The trial court has answered the above mentioned issues as under 9
Issue Nos. 1 and 2 in the affirmative; issue No.3 in the negative; issue Nos.4 and 5 in the affirmative and issue No.6 as per the order. The additional issue in the negative.
9. The plaintiff relies on the will made by her fatherin law, Sri Y V Shyamappa, where in the suit schedule property is bequeathed to B G Sridhara the son of the plaintiff. According to the plaintiff B G Sridhara was not married and died intestate on 1.3.2001. The plaintiff contend that her husband died on 14.6.2005 and she is the only legal heir to her son. PW.2 has produced the GPA, which is executed by the plaintiff in favour of PW.2. The burden lies on the party who denies the relationship and the ownership. The plaintiff has also produced the certified copy of the affidavit in O.S. No.4564/2000 of B.K. Ramakrishna S/o B Bettaiah who had attested to show that his father died on 9.6.1998. The death certificate of B Bettaiah one of the attesting witness to the will, is produced at EX.P. 19. G S Prabakara S/o late Y V Shyamappa filed O.S. No.6883/97 against B G Sridhara S/o
1) 10 B S Govindaraju and B S Suvarna D/o late Y V Shyamappa for the relief of permanent injunction. The said suit relates to the suit building. EX.P.8 is the order sheet in the said suit and EX.P9 is the plaint in the said suit. EX.P.12 is the certified copy of the written statement filed by B G Sridhara and B S Suvarna. They contend that Shamappa has executed a will on 27.6.1995 bequeathing portions of the properties to all the class-I legal heirs and also to Shri B G Sridhara (son of the present plaintiff). EX.P14 is the certified copy of IA No.1 in O.S.6883/97 along with the affidavit. B G Sridhara claimed the property through the will only. 0.S. No.6883/97 was dismissed for default on 21.9.98.
10. B S Prabakara again filed suit O.S. No.4565/07 against B S Govindaraju and others as could be seen from the certified copy of the examination-in-chief produced at EX.P.23. In the said suit the will dated 26.7.95 was challenged on the ground that it is a document prepared with malafide intention and to get the khata and dispossess the 11 plaintiff therein. EX.P15 is the deposition of Sharadamma W/o Nanjundappa in O.S. 466/07 to show that V.C. Kodandaram was a deed writer and he died. EX.P .20 is the evidence of Sub-Registrar, in 0.5. No.4564/2000.
EX.P21 is the certified copy of the register of wills maintained by Sub Registrar, Bengaluru. EX.P22 is the certified copy of the thumb impression register maintained by the Sub-
Registrar, which is in respect of execution of will of Y V Shyamappa.
EX.P24 is the certified copy of the judgment in 0.5.
No.4564/2000 wherein the suit filed by B S Pra bhakara S/o Sri Y Shyamappa against the husband of presen t plaintiff has been dismissed with costs. The present plaintiff and the other heirs of B S Govindaraju were also brought on record in the said suit.
11. The trial court has dismissed the suit i.e.,
0.S. No.4564/00 seeking for declaration that the regis tered will dated 27.6.1995 executed by Y V Shyamappa is null and void.
Therefore there is sufficient evidence to show that the plaintiff 12 is the owner of the suit schedule property. Though the appeal has been filed against the judgment in O.S. No.4564/00, but it has not been finally decided, The contention of the plaintiff is that the suit property was let out by her son B G Sridhara in favour of the defendant in the year 2000 on monthly rental of Rs.10,000/-. The defendant denies the relationship of landlord and tenant. The defendant contend that he is the tenant under one Miss Suvarna d/o Shvamappa and paying the monthly rent of Rs.2,000/- to her. According to the defendant, Miss Suvarna is the absolute owner of the suit schedule property after the death of Mr. B 0 Sridhar. The defendant has not produced any documents to show that Miss Suvarna is the absolute owner of the suit schedule property. Plaintiff is the class-I legal heir of deceased B G Sridhara. After his death, there is attornment of tenancy under Section 109 of the Transfer of Property Act. Considering the evidence before the court. it is clear that the defendant is the tenant of the plaintiff and there exist relationship of landlord and tenant. In the absence of any * 13 evidence on the part of the defendant the claim of the defendant that he is the tenant under one Miss Suvarna d/o late Y V Shyamappa cannot be accepted. Under Section 109 of the Transfer of Property Act, the transferee becomes the owner of the premises and the tenant cannot dispute the right of the transferee landlord to maintain an eviction petition. The plaintiff contend that she has tenninated the tenancy of the defendant by notice. Copy of the notice is produced. According to the pleadings in para No.6 of the plaint, the defendant was served with notice dated 5.4.2005. The defendant has sent reply dated 12.5.2005 contending that he is paying the rent to Chandrashekar. The plaintiff has produced the reply at EX.P.2. In the said reply ft is said that B G Sridhara was the owner of the property. In the reply the defendant has a different case he contended that he is a tenant under Sri S Chandrashekar and Smt. Suvarna. According to the defendant he has stated in EX.P.2, ft is Chandrashekar and Suvarna who got the property after B 0 Sridhara. But there is no evidence for the same and hence, ft C-, 14 cannot be accepted. The plaintiff contended that she has terminated the tenancy by notice dated 20.10.2005 issued under Section 106 of Transfer of Property Act. According to the plaintiff the lease is determined as per Section 111(g) of Transfer of Property Act, by way of forfeiture as the tenant defendant has set up title in third person. The copy of the notice is produced at EX.P.26. It is specifically mentioned in EX.P.26 that the defendant has not paid the rent and sent untenable reply as per EX.P2 setting up the title in the name of one S Chandrashekar who has nothing to do with the property. In EX.P2 there is a denial of the title and rights of the plaintiff and her husband. Therefore by way of forfeiture of the lease, the tenancy is determined and it is specifically stated that the defendant is a trespasser. The said notice was served on the defendant as per EX.P6 which is the acknowledgement. Therefore the notice is duly served on the defendant. The defendant has set up the claim of title in S Chandrashekar and Miss B S Suvarna and further contended that the rent is paid to them. The defendant being the tenant a--
15cannot deny the title of the plaintiff who is the legal heir of Sri B G Sridhar. Therefore denial of the title of legal heir of the owner is sufficient to constitute forfeiture under Section 111(g) of the Transfer of Property Act,
12. The trial court has also observed that DW. I was cross-examined by learned counsel for the plaintiff and DW. 1 admits certain facts. In para No.9 of the cross-examination DW. 1 states that he has not seen any; documents as to the ownership of B S Suvarna. Therefore the claim of the defendant that he has handed over the possession to B S Suvarna is un-believable. In para 14 of the cross-examination DW. 1 states as under:
Now I am not concerned with the suit schedule property. I do not have any objections if the suit is decreed and there is an order of ejectment. I have not informed the court about the vacation of the suit schedule "16
13. Therefore the trial court came to the conclusion that the possession of the defendant is unauthorised and plaintiff is entitled for damages. Accordingly the suit was decreed. Feeling aggrieved by the same the defendant has preferred this appeal.
14. I have heard the learned counsel for the appellant as well as learned counsel for the respondent.
15. The contention of the learned counsel for the appellant is that he has handed over the vacant possession of the suit schedule property to Suvarna on 31.7.2011. There is no relationship of landlord and tenant. In the court below memo is also filed about the delivery of the possession. No document is produced to show jural relationship. No amount is mentioned in the rent notice. Rs.2,000/- rent was paid to Suvarna.
16. Learned counsel for the respondent has produced the copy of judgment in 0.S. No.4564/00 wherein B S q 17 Prabhakar has instituted suit against the defendant for declaration that the registered will dated 27.6.1995 executed by Y V Shyamappa is null and void. But the said suit was dismissed. Therefore the will executed by Y V Shyamappa does not suffer from any infirmity. No material is brought out to show that the ill suffers from infirmity. Therefore the suit schedule property was bequeathed in favour of B G Sridhar. Lakshmamma is the mother of B G Sridhar and she is the class-I legal heir and therefore she is entitled for suit schedule property.
17. The next aspect that I have to consider is whether the legal notice issued suffers from infirmity or not. In this case legal notice has been issued and the same was received by the defendant and defendant has also replied to the notice. Though it is the contention of the defendant that the owner of the property is not the plaintiff, but defendant was not able to establish this fact. Notice was issued under section 106 and lease was determined as per section 111(g) of the Transfer of 18 Property Act. In a suit for ejectment all that we have to consider is whether the legal notice issued is valid or invalid or whether there is any infirmity in legal notice. In this case legal notice has been issued under section 106 of the Transfer of Property Act to the defendant and he has also replied to the same setting up the title to third party, but this fact has not been established by the defendant. On the other hand plaintiff was able to establish the title over the suit schedule property by virtue of the will executed by the father-in-law of the plaintiff in favour of her son vide EX.P25 i.e., certi fied copy of the will dated 25.4.97. Most of the contention that has raised before this court has been considered by the trial court and the same has been answered by the trial cour t. It is the contention of the learned counsel for the appellant that the property was delivered to Suvarna on 3 1.7.2007. Thou gh the owner of the suit schedule property is the plaintiff, the property has been delivered to Suvarna. To that effect a memo has also been filed before the court below. The trial court has not accepted the memo and the same was rejected.
2w--"
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18. On careful perusal of the judgment of the trial court and also the material placed before this court, in my view, the finding recorded by the trial court is sound and proper and does not call for interference.
19. In view of the above discussion, I pass the following order.
ORDER This Regular First Appeal is dismissed. Since the main matter has been disposed of IA 1 12 for / stay of execution of the decree does not survive for consideration and the same is dismissed, JUDGE YKL