Bangalore District Court
Mr.Tanveer Ahmed vs Mr.Deepu.N.S on 2 March, 2023
KABC020210092021
BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
BENGALURU. (SCCH-11)
DATED THIS THE 02ND DAY OF MARCH - 2023
PRESENT: SRI.RAGHAVENDRA.D, B.COM, L.L.B.
I ADDL.SMALL CAUSES JUDGE & MACT
SC No.560/2021
PLAINTIFFS:
1. Mr.Tanveer Ahmed,
S/o.Late Nazir Ahmed,
Aged about 48 years.
2. Mr.Nadeem Ahmed,
S/o.Late Nazir Ahmed,
Aged about 47 years.
3. Mr.Mubariz Ahmed,
S/o.Late Nazir Ahmed,
Aged about 46 years.
4. Mr.Tousif Ahmed,
S/o.Late Nazir Ahmed,
Aged about 45 years,
All residing at No.149,
2nd Cross, 1st Stage Micheal Palya,
Indiranagar Bengaluru - 560 038.
SCCH-11 2 SC No.560/2021
(By Sri.P.B.Ajit, Adv.)
//Versus//
DEFENDANTS:
1. Mr.Deepu.N.S.,
S/o.Late Subhash.T.N.,
Aged about Major.
2. Smt.Shakunthala.B.C.,
W/o.Late Subhash.T.N.,
Aged about Major.
3. Sri.Raghavendra.N.S.,
S/o.Late Subhash.T.N.,
Aged about Major.
4. Smt.Uma.N.S.,
D/o.Late Subhas.T.N.,
Aged about Major.
All are residing at:
No.803/1,
1st 'C' Main Road, L.N.Colony,
4th Main, 4th Phase,
Yeshwanthapura,
Bengaluru - 560 022.
(By D1, 2 & 4 - Smt.B.Rajashree &
Sri.Rajesh.S, Advocate)
(D.3 - Exparte).
JUDGMENT
This is a suit filed by the plaintiffs against the defendants for eviction, recovery of arrears of rent and for damages. SCCH-11 3 SC No.560/2021
2. The case of the plaintiffs in brief is that:-
The plaintiffs are the absolute owners of property bearing No.99, Old No.143, situated at Subedar Chatram Road, Sheshadripuram, Bengaluru - 560 020. The schedule shop premises No.3 measuring East to West 22 Feet and North to South 11 Feet 6 Inches. Further it is pleaded that originally suit shop property purchased by Late Smt.Asha.Bi, W/o.Late Shaik Madar vide Sale Deed dated: 04.08.1914. After her demise her only son late Sri.Abdul Sattar become sole and absolute owner in possession of schedule properties. Late Sri.Abdul Sattar demised on 07.01.1952 leaving behind his wife Smt.Mahaboob Bi and his 6 children namely Sri.Nazir Ahmed, Smt.Asmathunissa, Smt.Iqbalunissa, Smt.Sharfunissa, Sri.Basheer Ahmed and Sri.Khaleel Ahmed acquired the title of schedule properties. Late Sri.Basheer Ahmed predeceased his wife Smt.Haseena Jan who later released her entire share in Schedule properties in favour of Sri.Khaleel Ahmed through vide release deed dated: 20.09.2011.
Further, it is pleaded that plaintiffs are the sons of late Sri.Nazir Ahmed and after death of late Sri.Nazir Ahmed, they have SCCH-11 4 SC No.560/2021 acquired their share in the schedule properties. Further it is pleaded that Sri.Khaleel Ahmed, Smt.Asmathunissa, Smt.Iqbalunissa and Smt.Sharfunissa have executed the release deed dated: 20.09.2011 in favour of plaintiffs with respect of suit schedule properties and thereafter Khatha was transferred in the name of plaintiffs. After acquiring the property, they are residing in residential premises No.1 & 2 as a tenants in common and enjoying the schedule properties including schedule shop No.3 as joint owners, having common and undivided share and interest in schedule properties. Further it is pleaded that Late Smt.Mahaboob Bi let out schedule shop No.3 to one Late Sri.T.Narasimhaiah. After demise of Sri.T.Narasimhaiah, Sri.Subash.T.N continued in possession of schedule shop No.3 as a tenant under late Sri.Nazir Ahmed, who was looking after the suit schedule properties. After demise of Late Sri.Nazir Ahmed in the year 1995, the plaintiffs have been taking care of maintenance of suit schedule properties including schedule shop.
Further it is pleaded that the lease initially granted in favour of Sri.Narasimhaiah, on his demise Sri.Subhash running a Flour SCCH-11 5 SC No.560/2021 Mill in said schedule shop and on request made by Sri.Subhash, they have orally agreed to renew the tenancy of schedule shop No.3 for a monthly rent of Rs.750/-. The said Late Sri.Subhash.T.N demised in January 2019, after his demise the defendants who are the legal heirs of Sri.Subhash have continued in possession of schedule shop as tenants. The defendants failed to pay agreed rents and also stopped running Flour Mill in the schedule shop. The defendants have agreed to pay annual increment at the rate of 5% on existing rent i.e., Rs.1,108/- per month from January 2019. Further it is pleaded that they were under the bonafide belief that Sri.Deepu S/o.Late Subhash was maintaining the schedule shop have issued a legal notice dated:
14.08.2019 calling upon him to vacate and handover vacant possession of schedule shop and thereafter they have filed suit for eviction before the Court of Addl. Small Causes Court at Mayo Hall, Bengaluru in S.C.No.15267/2019. The said suit was withdrawn by them as same suffered from formal defects. It is pleaded that despite of several requests, the defendants have neither paid the monthly rent to plaintiffs nor have vacated the SCCH-11 6 SC No.560/2021 schedule shop and handed over vacant possession of suit schedule shop. The residential premises No.1 & 2 of schedule property are in a dilapidated condition and same requires immediate attention. They are absolute owner of schedule property and desirous of developing the entire schedule properties for their use and occupation. Then they have issued a legal notice dated: 26.02.2020 as contemplated Under Section 106 of T.P.Act calling upon the defendants to quit, vacate and handover the vacant possession of schedule shop No.3. They have legally terminated tenancy of defendants by issuing legal notice. The possession of defendants after termination of tenancy is illegal, as such the defendants are liable to vacate the schedule shop No.3. The defendants failed to pay agreed rent of Rs.1,108/- from January 2019 and also liable to pay accrued rental arrears of Rs.14,404/- till the termination of tenancy and also defendants liable to pay mesne profits/damages at the rate of Rs.15,000/- per month. Hence, this suit.
3. On service of summons, the defendant No.1, 2 & 4 SCCH-11 7 SC No.560/2021 appeared before the court through their counsel and filed written statement. The defendant No.3 did not appear before the court hence, he has been placed as exparte.
4. The defendant No.1, 2 & 4 have contended in their written statement that this court has no jurisdiction to entertain the above suit. Admittedly, the suit schedule property on Eastern Side measures 11 ft. 6 inches, on the West side measures 11 ft. 6 inches, on the Northern side measures 21 ft. and on Southern side measures 22 ft. But the whole schedule shop measures 249.40 sq. ft., i.e., 23.17 Sq.mts. The schedule shop property exceeds the limit of 14 Sq. Mts., as such there is a bar U/Sec.2(3) (g) of Karnataka Rent Act, as such the suit is not maintainable. The plaintiff claiming their title through release deed itself cannot prove the title or ownership over the properties and same cannot be equated with mother deed of property. The release deed is executed when the parties are common owners of property. In the present case, the plaintiff and the releasors were never common owners. Further it is contended that the plaint is not corroborating the documents SCCH-11 8 SC No.560/2021 furnished in support of plaint. The plaintiff claims that the release deed was executed by Sri.Khaleel Ahmed, Smt.Asmathunissa, Smt.Iqbalunissa and Smt.Sharfunissa, Smt.Mehaboob Bi and Smt.Syeda Nahida Banu mother of plaintiffs had released their rights in favour of plaintiffs. Thus it is very crude as to the rights of Smt.Iqbalunissa and Smt.Sharfunissa (children of Sri.Abdul Sattar and Smt.Mehaboob Bi). The release deed on its own does not confer any title in rem, rather it is only in persona. Merely holding Khatha Certificate and paying tax also does not convey right and title over the suit schedule property. On this ground, the present suit is liable to be rejected.
Further, it is contended that the suit schedule shop was running by Grandfather of defendant Sri.T.Narasimhaiah from 1964. The said Sri.T.Narasimhaiah had obtained electricity commercial power connection to set up Rice Flour Mill. After death of Sri.T.Narasimhaiah, the Rice Flour Mill was continued by Sri.Subash.T.N and he died on 11.01.2019. Merely by some unknown person executed release deed in favour of plaintiffs is SCCH-11 9 SC No.560/2021 not sufficient to claim title in respect of property. All of a sudden the plaintiffs claiming to be the owners starting to visit the premises created lots of doubts and confusion in the mind of defendants. Due to sudden demise of Sri.Subash.T.N., they were unable to take any action. Sri.Subash.T.N. had run the shop for over 45 years, 2nd defendant, who used to assist Sri.Subhash.T.N. during the business had sentimental attachment. After the demise of Sri.Subash.T.N., the 2nd defendant continued to run the shop. She also kept a helper to assist her in running the same. The shop is regularly running and it is not kept under lock as claimed by plaintiff. The shop was closed only for a brief period due to Covid Crises. The 1st defendant is working and he is not involved in day to day activities. The mill is actually run by 2 nd defendant. The suit is barred by limitation, the plaintiffs have failed to substantiate as to when they actually started the title over the property. Further it is contended that the plaintiff suppressed the fact regarding filing of earlier suit in O.S.No.15267/2019 before SCCH-19 Mayo Hall, which was later withdrawn by them and hence prays to dismiss the suit. SCCH-11 10 SC No.560/2021
5. In order to prove case of plaintiffs, the 3 rd plaintiff stepped into witness box and filed an affidavit in lieu of chief examination by reiterating plaint averments and he got produced and marked Ex.P.1 to Ex.P.25 documents and closed their side of evidence. On the other hand the 1st Defendant got examined as DW.1 and got marked Ex.D.1 to 10 documents and closed their side of evidence.
6. I have heard arguments on both sides and perused the materials available on record.
7. Now the points that arise for my consideration are;
1) Whether the plaintiffs prove relationship of landlord and tenant?
2) Whether the plaintiffs terminated the tenancy of defendants by issuing quit notice?
3) Whether the plaintiffs are entitled for relief as prayed?
4) What Order or decree?
8. My findings to the above points are as follows:
Point No.1 & 2 : In the Affirmative.SCCH-11 11 SC No.560/2021
Point No.3 : In the Affirmative.
Point No.4 : As per the final order; for the following:
REASONS
9. Point No.1 & 2 :- Both points are inter related, as such they are taken up together for discussion in order to avoid repetition of facts and evidence.
10. It is the case of plaintiffs that, they are the absolute owners of property bearing No.99, Old No.143, situated at Subedar Chatram Road, Sheshadripuram, Bengaluru and defendants are tenants in suit schedule property.
11. In the written arguments, the defendant submitted that he has filed written statement in S.C.No.15267/2019 and marked as Ex.P.20. In the said written statement, he has stated that the schedule premises was originally let out to his grandfather Sri.T.Narasimhaiah during the year 1964. After his demise in the year 1972, the shop was run by his father Sri.Subash.T.N for over 45 years till his death on 11.01.2019 and thereafter his mother SCCH-11 12 SC No.560/2021 was running the Rice Flour Mill in the premises. Further in his written arguments, the defendants have stated that the rent was being collected by Sri.Khaleel Ahmed who used to come and collect the rent on a monthly basis from the shop. The said Sri.Khaleel Ahmed never indicated the two release deeds of 2011. The said Sri.Khaleel Ahmed never authorized any other person to collect rent. Hence, after his absence abruptly from 2018 rent was not paid. Further the defendants in their written statement they have contended that Sri.T.Narasimahaiah has obtained electricity commercial power connection. After death of Sri.T.Narasimhaiah, the flour mill was continued and run by father of defendant No.1, 3 & 5 and husband of Defendant No.2 namely Mr.Subash.T.N. The shop was run over 45 years by Mr.Subash.T.N and after his demise defendant No.2 continuing business in suit schedule shop.
12. The learned counsel for defendant suggested to PW.1 that the tenant in suit schedule property paying rent to Sri.Khaleel Ahmed, Smt.Asmathunissa, Smt.Iqbalunissa and Smt.Sharfunissa. DW.1 in his cross examination deposed that SCCH-11 13 SC No.560/2021 Sri.T.Narasimhaiah came into possession of suit schedule property in the year 1964 as a tenant. Further he has admitted that Sri.T.Narasimhaiah during his life time, he was paying rent to owner of property. Further in his cross examination, he has deposed that earlier to 2019, he was paying rent to Sri.Khaleel Ahmed. So, on perusal of written arguments, written statement and oral evidence of defendant, it is crystal clear that in the year 1964, the grand father of DW.1 taken the possession of suit schedule property as a tenant. So, it is undisputed fact that defendants are tenants in suit schedule property.
13. The defendants contended that the plaintiffs are not the landlord of suit schedule property. Further in written arguments, the defendants have denied the jural relationship among plaintiffs and defendants. Further in written arguments, it is submitted that Sri.Khaleel Ahmed was collecting the rent and also the defendants disputed the execution of release deed as stated by plaintiffs in their plaint.
14. The plaintiffs in their pleading, they have pleaded that SCCH-11 14 SC No.560/2021 the suit schedule property originally purchased by late Smt.Asha Bi, W/o.Late Shaik Madar through sale deed dated: 04.08.1914. After demise of late Smt.Asha Bi her only son Late Sri.Abdul Sattar became sole and absolute owner in possession of schedule properties. The said Sri.Abdul Sattar demised on 07.01.1952 leaving behind his wife Smt.Mahaboob Bi and her children Sri.Nazir Ahmed, Smt.Asmathunissa, Smt.Iqbalunissa, Smt.Sharfunissa, Sri.Basheer Ahmed and Sri.Khaleel Ahmed. After death of Smt.Mahaboob Bi her children Sri.Nazir Ahmed and children acquired title of suit schedule properties. Late Sri.Basheer Ahmed predeceased his wife Smt.Haseena Jan who later released her entire share in schedule properties in favour of Sri.Khaleel Ahmed vide release deed dated: 20.09.2011. Further it is pleaded that the plaintiffs are all sons of late Sri.Nazir Ahmed and after death of Sri.Nazir Ahmed have acquired the suit schedule properties and they acquired absolute title to schedule properties vide release deed dated: 20.09.2011 whereunder, Sri.Khaleel Ahmed, Smt.Asmathunissa, Smt.Iqbalunissa and Smt.Sharfunissa have released their entire shares in schedule SCCH-11 15 SC No.560/2021 properties in favor of plaintiffs.
15. The plaintiffs in order to show that they have acquired the suit schedule property, they have produced Ex.P.5 - Certified Copy of Sale Deed dated: 04.08.1914 and as per said document Smt.Asha Bi purchased suit schedule property. Further the plaintiffs produced release deeds to show how they have acquired the suit property. The plaintiffs have produced Ex.P.11 Registered Release Deed executed by Smt.Haseena Jan, W/o.Late Sri.Basheer Ahmed in favour of Sri.Khaleel Ahmed with respect of suit schedule properties. Further the plaintiff also produced Ex.P.13 - Registered Release Deed executed by Sri.Khaleel Ahmed, Smt.Asmathunnissa, Smt.Syeda Nahida Banu in favor of Sri.Tanveer Ahmed, Sri.Nadeem Ahmed, Sri.Mubariz Ahmed and Sri.Tousif Ahmed. On perusal of both the documents, first Smt.Haseena Jan executed release deed in favour of Sri.Khaleel Ahmed and in the second document the Sri.Khaleel Ahmed and others executed the release deed in favour of plaintiffs. The defendants in their written statement, they have contended that the defendant were paying rent to one Sri.Khaleel Ahmed. DW.1 SCCH-11 16 SC No.560/2021 also in his cross examination deposed that he was paying rent to Sri.Khaleel Ahmed till 2019. So, on perusal of Ex.P.13 Sri.Khaleel Ahmed executed the release deed in favour of plaintiffs. So, as per Ex.P.13 Sri.Khaleel Ahmed relinquished property which he acquired through Ex.P.11 and his share of property to the plaintiffs through Ex.P.13. After execution of Ex.P.11 & Ex.P.13 Release Deed, the Khatha was changed in the name of plaintiffs as per Ex.P.14 to 16. So, as on the date of filing of suit, the suit property is in the name of plaintiffs. Further plaintiffs produced Ex.P.18 - Ration Card dated: 20.12.1984 issued by Food and Supply Department, Bengaluru. As per Ex.P.18 - Ration Card, Sri.Nazir Ahmed, Smt.Mahaboob Bi, Smt.Syeda Naheeda Banu, Sri.Tanveer Ahmed, Sri.Nadeem Ahmed, Sri.Mubariz Ahmed and Sri.Tousif Ahmed and also Sri.Khaleel Ahmed were all members of family. As per Ex.P.18 Smt.Mahaboob Bi is the mother of Sri.Nazir Ahmed and Smt.Syeda Naheeda Banu is the wife of Sri.Nazir Ahmed, Sri.Tanveer Ahmed, Sri.Nadeem Ahmed, Sri.Mubariz Ahmed, Sri.Tousif Ahmed are all sons of Sri.Nazir Ahmed and Sri.Khaleel Ahmed is brother of Sri.Nazir Ahmed. SCCH-11 17 SC No.560/2021 Case on hand, Sri.Khaleel Ahmed executed Ex.P.13 relinquish deed in favour of plaintiffs who are none other than the sons of Sri.Nazir Ahmed and Sri.Khaleel Ahmed none other than the uncle of plaintiffs. So, on perusal of Ex.P.18 Sri.Khaleel Ahmed is also member of family of plaintiffs. The defendant except contending that the plaintiffs are not the owners of suit schedule property, they have not placed any materials before the court to establish that the plaintiffs are not the owners of property. Further as per admission of DW.1, defendants were paying rent to one Sri.Khaleel Ahmed till 2019. As per Ex.P.13 Sri.Khaleel Ahmed relinquished his right over the suit schedule property. So, I am of the opinion that Ex.P.11 & 13 release deeds executed among the family members of plaintiffs.
16. The learned counsel for plaintiffs relied upon decision of our Hon'ble High Court of Karnataka decided on 22.03.2017 in W.P.No.41069/2014 (GM-CPC) in between M/s.K.M.Akbar Trust Vs. M/s.Shakthi Enterprises and others, wherein the Hon'ble High Court of Karnataka at Para.22 held as follows:
"22. A plain reading of Section 109 of the Transfer of SCCH-11 18 SC No.560/2021 Property Act makes it manifest that, once the premises is transferred in favor of the respondent by the previous lessor, the respondent becomes the lessor and becomes entitled to receive rent in terms of the lease by operation of Section 109 of the Transfer of Property Act. It is relevant to state that no attornment of tenancy is necessary in law, as Section 109 of the Transfer of Property Act creates a statutory attornment. The Section does not insist that transfer of the lessor's rights can take effect only if the tenant attorns."
With due respect to the Hon'ble High Court of Karnataka, the ratio laid down by Hon'ble High Court of Karnataka in the above judgment is aptly applicable to the case on hand.
17. The defendants relied upon decision reported in:
(I) 2021(3) KCCR 2110 in between Surendra Kumar Jain Vs. S.A.Subramany, wherein the Hon'ble High Court of Karnataka at Para.15 held as follows:
"In the over all circumstances of the case, it is a classic case wherein suit for eviction is filed against the defendant claiming jural relationship of land lord and tenant. On the other hand, the plaintiff has neither has come to the court with clean hands nor has properly declared statement of material facts. Hence, I have no hesitation in holding that there is no relationship of landlord and tenant to get an order of evidence."
Further the Hon'ble High Court of Karnataka at Para.15 held as follows:
SCCH-11 19 SC No.560/2021
"Registered sale deed is produced along with the application. Smt.Kanta devi wife of Surendra Kumar Jain, declares that she is the power of attorney holder of S.A.Subramanyam and she is executing the sale deed in respect of the schedule property. The interesting aspect is power of attorney is dated:
06.12.2012 on the same day followed by affidavit containing declaration of receiving Rs.2.00 lakh followed by sale agreement of the same schedule property wherein defendant has shown as having received Rs.2.00 lakh and nothing is due. Regard being had to the fact that on the date of sale deed i.e., on 01.04.2004 almost 2 years later, Smt.Kanta devi wife of plaintiff still states that she is the power of attorney holder in which event, the statement goes against the substance of the document stated as sale agreement. It is stated that vendor needed fund and hence, she was selling the property belonging to her vendor. Regard being had to the fact that under previous document she claims to have become owner of the property. All the discussion are made on the basis of the documents filed by the plaintiff."
With due respect to the Hon'ble High Court of Karnataka, I have carefully perused the above reported judgment. Case on hand, on the basis of release deed executed by family members, the plaintiffs are claiming that they are the landlords of suit schedule property. So, with due respect of Hon'ble High Court of Karnataka, the facts and circumstances of the above reported judgment and case on hand are not one and the same. SCCH-11 20 SC No.560/2021
18. Further the learned counsel for defendants relied upon decision reported in 2018(5) KCCR 986 in between Riyaz Ahamed Vs. Lalitha Bai K and Another, wherein at Para.5 held as follows:
"If the petitioner landlord fails to prove that the respondent is their tenant, he would not succeed in his petition. When the jural relationship is denied, it is for the landlord-petitioner to prove the same by adducing cogent evidence in the case on hand."
19. Further the learned counsel for defendants relied upon decision reported in:
(i) (1995) 6 Supreme Court Cases 580 in between Dr.Ranbir Singh Vs. Asharfi Lal, wherein the Hon'ble Supreme Court of India held at Para.9 as follows:
"9. It may be pointed out that it is well-settled law that the question of title of the property is not germane for decision of the eviction suit. In a case where a plaintiff institutes a suit for eviction of his tenant based on the relationship of the landlord and tenant, the scope of the suit is very much limited in which a question of title cannot be gone into because the suit of the plaintiff would be dismissed even if he succeeds in proving his title but fails to establish the privity of contract of tenancy. In a suit for eviction based on such relationship the Court has only to decide whether the defendant is the tenant of the plaintiff or not, though the question of title if SCCH-11 21 SC No.560/2021 disputed, may incidentally be gone into, in connection with the primary question for determining the main question about the relationship between the litigating parties. In LIC vs. India Automobiles & Co., (SCC pp.300-02, para 21) this court had an occasion to deal with similar controversy. In the said decision this Court observed that in a suit for eviction between the landlord and tenant, the Court will take only a prima facie decision on the collateral issue as to whether the applicant was landlord. If the court finds existence of relationship of landlord and tenant between the parties it will have to pass a decree in accordance with law. It has been further observed that all that the Court has to do is to satisfy itself that the person seeking eviction is a landlord, who has prima facie right to receive the rent of the property in question. In order to decide whether denial of landlord's title by the tenant is bonafide the court may have to go into tenant's contention on the issue but the Court is not to decide the question of title finally as the Court has to see whether the tenant's denial of title of the landlord is bonafide in the circumstances of the case."
20. The Hon'ble Supreme Court of India in (2018) 2 Supreme Court Cases 352 in between Kanaklata Das and others Vs. Naba Kumar Das and others, wherein at Para.11.2 held as follows:
"11.2. Second, the landlord (plaintiff) in such suit is required to plead and prove only two things to enable him to claim a decree for eviction against his tenant from the tenanted suit premises. First, there exists a relationship of the landlord and tenant between the plaintiff and the defendant and second, SCCH-11 22 SC No.560/2021 the ground (s) on which the plaintiff landlord has sought defendant tenant's eviction under the Rent Act exists. When these two things are proved, the eviction suit succeeds."
21. Case on hand, the plaintiffs are claiming that they are the landlords of suit schedule property on the basis of execution of Ex.P.11 & 13 Release deed. The said release deed executed with the members of family, the plaintiff have produced title deed before the court to establish how the property acquired by ancestors of plaintiffs and produced release deeds how they have acquired the suit property. So, the plaintiffs by producing oral and documentary evidence before the court have proved that they are the landlords of suit properties.
With due respect to the Hon'ble Supreme Court of India and Hon'ble High Court of Karnataka. I have carefully perused the above reported Judgments. The ratio and dictum laid down by the Hon'ble Supreme Court of India and Hon'ble High Court of Karnataka is aptly applicable to the case on hand.
22. The defendants have contended in Para.5 of written statement as follows: "the plaintiffs claims that the Release SCCH-11 23 SC No.560/2021 Deed was executed by Sri.Khaleel Ahmed, Smt.Asmathunissa, Smt.Iqbalunissa and Smt.Sharfunissa (Children of Sri.Abdul Sattar) had released their rights in favour of the plaintiffs, whereas the document furnished as document No.1 along with the plaint denotes the release deed executed by Sri.Khaleel Ahmed, Smt.Asmathunissa, (Children of Sri.Abdul Sattar & Smt.Mehaboob Bi) and Smt.Syeda Nahida Banu (Mother of the Plaintiffs). Thus it is very crude as to the rights of Smt.Iqbalunissa and Smt.Sharfunissa (Children of Sri.Abdul Sattar & Smt.Mehaboob Bi)". On perusal of Ex.P.11 & 13, One Smt.Haseena Jan, Sri.Khaleel Ahmed, Smt.Asmathunissa, Smt.Syeda Nahida Banu executed release deed in favour of plaintiffs. Smt.Iqbalunissa and Smt.Sharfunissa have not executed release deed. Only on the ground that they have not executed release deed, the right of plaintiffs claiming to evict the defendant cannot taken away. Smt.Iqbalunissa and Smt.Sharfunissa are also members of family.
23. In (2018) 2 Supreme Court Cases 352 in between Kanaklata Das and others Vs. Naba Kumar Das and others, SCCH-11 24 SC No.560/2021 wherein the Hon'ble Supreme Court of India held at Para.11.6 held as follows:
"11.6. Sixth, if there are co-owners or co- landlords of the suit premises then any co-owner or co-landlord can file a suit for eviction against the tenant. In other words, it is not necessary that all the owners/landlords should join in filing the eviction suit against the tenant. (See Kasthuri Radhakrishnan Vs. M.Chinniyan)."
In view of ratio laid down by the Hon'ble Supreme Court of India in the above reported Judgment, the suit filed by the plaintiffs is maintainable.
24. The defendants in their written statement and also in written arguments they have contended that as per the doctrine of Dominus Litus, the plaintiffs is the master of the suit. However, if he wants to withdraw the suit he has to follow procedure laid down under Order XXIII Rule.1. Further the court in its discretion has to permit the plaintiffs to with draw the suit with liberty to institute fresh suit regarding same cause of action. But the plaintiffs filed a memo for withdrawing of case without seeking leave of court and with liberty to file fresh suit to remove such defects, as such the suit is not maintainable. SCCH-11 25 SC No.560/2021
25. The plaintiffs in their plaint at Para.10 pleaded that they have filed suit against one Mr.Deepu, S/o.Late Mr.Subhash in Addl Small Causes Court at Mayohall, Bengaluru in S.C.No.15267/2019 and the said suit was withdrawn as the same suffered from formal defects. In support of plaint, the plaintiff produced Ex.P.19, the copy of plaint of SC.No.15267/2019, wherein the present plaintiffs filed suit against the Mr.Deepu for the relief of eviction and cause of action dated shown as 10.05.2019, wherein the defendant filed written statement and also produced Ex.P.1 - Order Sheet, wherein the suit of the plaintiff No.1 to 4 was dismissed as withdrawn in view of memo filed by plaintiffs.
26. The learned counsel for defendant confronted Ex.D.1 to PW.1, wherein the plaintiffs have filed memo seeking permission to withdraw the suit as it suffers from formal defects. On perusal of memo filed by plaintiff, the plaintiffs have not taken permission to file a fresh suit on same cause of action, but they have simply withdrawn the suit filed by them against defendant No.1.
SCCH-11 26 SC No.560/2021
27. The defendant relied upon decision reported in (2000) 5 Supreme Court Cases 458, wherein the Hon'ble Supreme Court held at Para.12 & 13 held as follows:-
"12. The law as to withdrawal of suits as enacted in the present Rule may be generally stated in two parts:
(a) a plaintiff can abandon a suit or abandon a part of his claim as a matter of right without the permission of the court; in that case he will be precluded from suing again on the same cause of action. Neither can the plaintiff abandon a suit or a part of the suit reserving to himself a right to bring a fresh suit, nor can the defendant insist that the plaintiff must be compelled to proceed with the suit; and
(b) a plaintiff may, in the circumstances mentioned in sub-rule(3), be permitted by the court to withdraw from a suit with liberty to sue afresh on the same cause of action. Such liberty being granted by the court enables the plaintiff to avoid the bar in Order II Rule 2 and Section 11 CPC.
13. The provision in Order XXIII Rule 1 CPC is an exception to the common law principle of non-suit. Therefore on principle an application by a plaintiff under sub-rule (3) cannot be treated on a par with an application by him in exercise of the absolute liberty given to him under sub-rule (1). In the former it is actually a prayer for concession from the court after satisfying the court regarding existence of the circumstances justifying the grant of such concession. No doubt, the grant of leave envisaged in sub-rule (3) of Rule 1 is at the discretion of the court but such discretion is to be exercised by the court with caution and circumspection. The legislative policy in the matter of exercise of discretion is clear from the SCCH-11 27 SC No.560/2021 provisions of sub-rule (3) in which two alternatives are provided; first where the court is satisfied that a suit must fail by reason of some formal defect, and the other where the court is satisfied that subject-matter of a suit or part of a claim. Clause (b) of sub-rule (3) contains the mandate to the court that it must be satisfied about the sufficiency of the grounds for allowing the plaintiff to institute a fresh suit for the same claim or part of the claim on the same cause of action. The court is to discharge the duty mandated under the provision of the Code on taking into consideration all relevant aspects of the matter including the desirability of permitting the party to start a fresh round of litigation on the same cause of action. This becomes all the more important in a case where the application under Order XXIII Rule 1 is filed by the plaintiff at the stage of appeal. Grant of leave in such a case would result in the unsuccessful plaintiff to avoid the decree or decrees against him and seek a fresh adjudication of the controversy on a clean slate. It may also result in the contesting defendant losing the advantage of adjudication of the dispute by the court of courts below. Grant of permission for withdrawal of a suit with leave to file a fresh suit may also result in annulment of a right vested in the defendant or even a third party. The appellate/second appellate court should apply its mind to the case with a view to ensure strict compliance with the conditions prescribed in Order XXIII Rule 1(3) CPC for exercise of the discretionary power in permitting the withdrawal of the suit with leave to file a fresh suit on the same cause of action. Yet another reason in support of this view is that withdrawal of a suit at the appellate/second appellate stage results in wastage of public time of courts which is of considerable."
With due respect to the Hon'ble Supreme Court of India, I SCCH-11 28 SC No.560/2021 have carefully perused the above reported judgment, the facts and circumstances of the above reported judgment and case on hand are different. Hence, the Judgment relied by defendants is not helpful to their case.
28. The plaintiffs filed suit against the defendants for recovery of possession of suit schedule property. As per defendants they are in possession since 1964 and they paid rent till 2019.
29. In 1994 AIR 2129, the Hon'ble Supreme Court of India in between K.S.Sunderaraju Chettiar Vs. M.R.Ramachandra Naidu, wherein held at Para.10 as follows:
"It should be borne in mind that cause for eviction is a recurring cause of action and even if the existence of such cause of action had not been found in a previous proceeding for eviction, the same cannot be discarded if such claim is established by cogent evidence adduced by the landlord in a subsequent proceeding". Further the Hon'ble Supreme Court held in same para that "The Landlord, in our view, may bring an action for eviction of the tenant or subsequent cause of action justifying a case of bonafide requirement".
Case on hand admittedly, the plaintiffs filed suit against the SCCH-11 29 SC No.560/2021 defendant No.1 in S.C.No.15267/2019 and same was withdrawn on 07.02.2020 and thereafter he has issued a fresh legal notice dated 26.02.2020 as per Ex.P.3 calling upon all the defendants to quit, vacate the suit schedule property and thereafter filed the present suit on fresh cause of action with bonafide reason. So, I am of the opinion that in view of ratio laid down by Hon'ble Supreme Court of India in the above judgment, the contention taken by defendants is not maintainable in the present case.
30. Further the defendants have contended in their written statement and also in written arguments that the suit was filed in respect of Item No.3 of suit schedule property admittedly measures 23.70 sq mts much above 14 sq. mts as stated in sec.2(3)(g) the Karnataka Rent Act. As such the plaintiffs had to file suit before the Civil Court and not before this court. The plaintiffs have filed this suit praying to evict the defendants from Schedule Item No.3, as the schedule property measuring 23.70 sq mts and admittedly the suit schedule property is commercial property.
Sec.2 of Karnataka Rent Act 1999 reads as follows:- (3) SCCH-11 30 SC No.560/2021 Nothing contained in this Act shall apply:-
(g) to any premises used for non-residential purpose but excluding premises having a plinth area of not exceeding fourteen square metres used for commercial purpose;
31. Admittedly, the suit schedule property is commercial property and exceeds 14 sq mtrs. The Hon'ble High Court of Karnataka in 2011(3) KAR 657 (DB) in S.C.No.1596/2019 dated: 05.03.2022, wherein the Hon'ble High Court of Karnataka at Para No.13 held as follows:
"Again, "residential purpose", residential user or purpose of residence is defined, which includes letting out for running a public institution. A "public institution" is also defined under the Act. Therefore, the premises which is not used for residential purpose which is let out for running a public institution, though not used for residential purpose are all governed by this Act.
However, Section 2(3)(g) of the Act makes it clear that, nothing contained in this Act shall apply to any premises used for non residential purpose. Therefore, the Act is not applicable to such premises used for non residential purpose. This is the general rule. However, an exception is carved out from this general rule i.e., if any non residential premises is used for commercial purpose, and its plinth area is less than 14 sq. meters, the Act is made applicable. If the non residential premises is SCCH-11 31 SC No.560/2021 used for commercial purposes and the plinth area of the said commercial premises exceeds 14 sq. meters, then the Act is not applicable."
In view of ratio laid down by Hon'ble High Court of Karnataka, the suit filed by plaintiffs is maintainable before this Court.
32. Defendants have produced Ex.D.6 - Telephone Bill issued by Bharat Sanchar Nigam Limited Bengaluru Telecom District dated: 04.07.2018, Ex.D.7 Electricity bill dated: 09.02.91 and also produced Electricity sanction letter at Ex.D.8 document issued by Karnataka Electricity Board. In addition to these documents, the defendants also produced Ex.D.2 - Photographs to show that existing of Flour Mill in suit schedule property. On perusal of Photographs the machinaries installed by defendants are old one. Further also photographs reveals that building is old one.
33. DW.1 in his cross examination deposed that during the period of Covid, they have stopped running of flour mill and they have not opened the flour mill due to pendency of suit. On perusal of all documents placed by both the parties, the SCCH-11 32 SC No.560/2021 defendants are in possession of suit schedule property as a tenant from long time. Naturally, the suit schedule property is old one. The Photographs placed by both the parties clearly establishes that the suit schedule property is in dilapidated condition. So, under such circumstances, the landlord has to give attention towards the suit schedule property which is in dilapidated condition. So, I am of the opinion that the plaintiffs have proved that the suit schedule property is required for their bonafide necessity. Only on the ground that the suit schedule property is required for their livelihood of defendants as they are in possession for longtime, it cannot be denied the rights of plaintiffs to make use of suit schedule property.
Admittedly, there was no written agreement with respect of tenancy. On the basis of oral agreement, the defendants are in possession of suit schedule property as a tenants.
34. Sec.106 of T.P.Act reads as follows:
"(1) In the absence of a contract or local law or usage to the contrary a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months notice and a lease of immovable property for any other SCCH-11 33 SC No.560/2021 purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee by fifteen days notice.
(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice.
"(3) A notice under sub-section(1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section."
35. The plaintiffs have issued Ex.P.3 - Quit notice as per Sec.106 of T.P.Act. Further on perusal of record, the notice issued to defendant was received by one Smt.B.C.Shakuntala. RW.1 in his cross examination, admitted that the notice issued by plaintiffs served upon them. Further he has deposed that they have issued reply notice to plaintiffs, but he has not produced reply notice. So, the plaintiffs have issued notice to the defendants as per Ex.P.3 praying to quit and vacate the suit schedule property. The notice was duly served upon the defendants. So, the plaintiffs have complied the statutory provision by issuing quit notice and also they have terminated the tenancy of defendants by issuing legal notice. Hence, Point No.1 & 2 answered in the Affirmative.
SCCH-11 34 SC No.560/2021
36. Point No.3:- In view of answering Point No.1 & 2, the plaintiffs are entitled for relief as prayed. According, I answered Point No.3 in the Affirmative.
37. Point No.4: In view of my findings given on point No.1 & 2, this Court proceeds to pass the following:
ORDER The suit of the plaintiffs is decreed with costs.
The Defendants are hereby directed to vacate and hand over the vacant possession of suit schedule premises to the plaintiffs, within three months from the date of this order. Failing which the plaintiffs are at liberty to proceed with due process of law.
As far as damages are concerned there shall be separate enquiry as contemplated under Order 20 Rule 12 of CPC.
Draw decree accordingly.
(Dictated to the stenographer directly typed by her script corrected and revised by me and then pronounced in the open court on this 02nd day of March - 2023.) (D.RAGHAVENDRA) I ADDL.SMALL CAUSES JUDGE SCCH-11 35 SC No.560/2021 SCHEDULE PROPERTIES Item No.1 All that piece and parcel of front portion of New No.99, Old No.143 (PID No.27-13-99) Subedar Chatram Road, Seshadripuram, Bengaluru 560 020 measuring East to West 43 Feet (43'.0") and North to South 16 Feet 8 Inches (16'.8") and bounded by:
East By : Subedar Chatram Road
West By : Remaining Property No.99,
Old No.143 (Item 2)
South By : Premises No.97 & 98, old No.141
and 142, Subedar Chatram Road
North By : Private Property.
Item No.2
All that piece and parcel of rear portion of New No.99, Old No.143 (PID No.27-13-99) Subedar Chatram Road, Seshadripuram, Bengaluru 560020 measuring East to West 35 Feet 9 Inches (35'.9") and North to South 36 Feet and 8 Inches (36'.8") and bounded by:
East By : Property New No.99, Old No.143
(Item 1) and Premises No.97 &
98, Subedar Chatram Road
West By : Vacant Land No.99/1, Subedar
Chatram Road
North By : Private Property
SCCH-11 36 SC No.560/2021
South By : Private Property
Item No.3
(Subject matter of the above suit)
All that piece and parcel of commercial shop situated on eastern side of composite property (Item No.1 & Item No.2) bearing Old No.143 (PID No.27-13-99) Subedar Chatram Road, Sheshadripuram, Bengaluru -560 020 measuring East to West 22 feet and North to South 11 feet 6 Inches, total measuring 255.2 Sq.feet or 23.70 Sq.Meters and bounded by:
East By : Road
West By : Remaining portion of same
property
South By : Premises No.98 and 98, Old
No.141 and 142, Subedar
Chatram Road
North By : Passage.
ANNEXURE
WITNESSES EXAMINED FOR PLAINTIFF:
PW.1 - Sri.Mubariz Ahmed
DOCUMENTS MARKED FOR PLAINTIFF:
Ex.P.1 Copy of Order Sheet in SC.No.15267/2019
Ex.P.2 8 Photographs with CD
Ex.P.3 Office Copy of Legal Notice
Ex.P.4 4 RPAD Acknowledgment
SCCH-11 37 SC No.560/2021
Ex.P.5 Notarized copy of Sale Deed
Ex.P.6 Death Certificate of Abdul Sattar
Ex.P.7 Endorsement
Ex.P.8 Khatha Certificate
Ex.P.9 Khatha Extract
Ex.P.10 Death Certificate of Mahaboob Bi
Ex.P.11 Release Deed
Ex.P.12 Death Certificate of Nazir Ahmed
Ex.P.13 Release Deed
Ex.P.14 Suvarna Khata Answer Sheet
Ex.P.15 Khatha Extract
Ex.P.16 Khatha Certificate
Ex.P.17 24 Revenue Receipts
Ex.P.18 Notarized copy of Ration Card
Ex.P.19 -25 - Copy of S.C.No.15267/2019 - complaint, verifying affidavit, valuation slip, list of documents, written statement, verifying affidavit, interim application, memo.
WITNESSES EXAMINED FOR DEFENDANT:
DW.1 Sri.Deepu.N.S.
DOCUMENTS MARKED FOR DEFENDANT:
Ex.D.1 Memo
Ex.D.2-5 Three Photographs with CD
Ex.D.6 Phone Bill
Ex.D.7 Electricity Bill
SCCH-11 38 SC No.560/2021
Ex.D.8 Report issued by Electricity Board
Ex.D.9 Electric Bill
Ex.D.10 Receipt
(D.RAGHAVENDRA)
I ADDL.SMALL CAUSES JUDGE
BENGALURU