Bangalore District Court
Smt.Leelavathi.P.Mahale vs Sri.Hanumanthappa Siddlingappanavar on 2 January, 2021
BEFORE I ADDL. JUDGE, COURT OF SMALL CAUSES, BANGALORE.
(SCCH11)
DATED THIS 2nd DAY OF JANUARY, 2021
PRESENT: SMT. B.S.RAYANNAWAR, B.A., L.L.B.
I ADDL.SMALL CAUSES JUDGE & MACT
H.R.C.1082/1995
PETITIONER: Smt.Leelavathi.P.Mahale,
W/o.Sri.Padmanabha Mahale,
Aged 44 years,
9, Supreme Enclave,
Mayur Vihar, Phase I,
New Delhi.
(Sri.S.C.R. Advocate)
V/S -
RESPONDENTS: 1. Sri.Hanumanthappa Siddlingappanavar,
148, Matadahalli Extension,
R.T.Nagar,
Bangalore.
(Sri.T.H.A. Advocate)
2. Smt.V.Sulochna,
D/o.Srinivasa Shetty,
Aged 80 years,
No.835, F Cross,
22nd Main Road,
Jayanagara T Block,
Bengaluru560 041.
JUDGMENT
Petitioner has filed this petition against the respondents seeking relief of eviction.
SCCH - 11 2 HRC No.1082/1995 The Brief facts of the petitioner case as averrred in the petition are as under:
2. It is averred in the petition that, petitioner is the owner of the premises, more fully described in the schedule having been purchased by her along with one Sri.Sangappa Basappa Ittagi vide sale deed dated 24.12.1993 for valid consideration from its erstwhile owner one Smt.Basavannamma wife of late Sri.P.K.Kalligudda. The respondent is the tenant under the vendor of the petitioner on a monthly rental of Rs.750/ per month, the tenancy month being an English Calendar month. The tenancy of the respondent continued the same having been duly attorned to immediately after the purchase of the schedule property.
The Khata of the petition schedule premises is changed in the name of the petitioner and Sri.S.B.Ittagi. Respondent No.2 filed O.S.6752/1993 claiming title to the property on the basis of the Will which suit was dismissed by the Hon'ble Court of Karnataka by judgment dated 08.12.2006 in MFA.No.3884/2001 and the 2nd respondent's Civil Appeal No.5751/2009 was dismissed by the Hon'ble Supreme Court of India in order dated 16.08.2017 in C.A.No.5751/2009.
SCCH - 11 3 HRC No.1082/1995 During the year 1999, the husband of the petitioner, Sri.Padmanabh Mahle was designated by the Hon'ble Court of Karnataka as a Senior Advocate and thereafter the petitioner and her husband have shifted their residence to Bangalore and are living in Bangalore from the year 1999 onwards. Further stated that petitioner does not own an independent house are living in an apartment complex, in which there is no place of accommodation to have the office of her husband. That apart the son and daughter of the petitioner are both married and have children of their own. The daughter of the petitioner is living in Mysore and visits often along with her husband and two daughters. The son of the petitioner is also practicing lawyer in Delhi and he visit Bangalore every year along with his wife and daughter during court vacations for a period of 4 to 6 weeks. Since there are no sufficient rooms to accommodate the family members and guests in the present apartment of the petitioner. Therefore, the petitioner is desirous of having her own independent house in Bangalore with provision for sufficient accommodation for her husband's office and rooms for guests. Hence, the petitioner requires the petition schedule premises for her bonafide use and occupation. The requirement of petitioner is both bonafide and reasonable.
SCCH - 11 4 HRC No.1082/1995 Further stated that the respondent is a chronic defaulter in the matter of payment of rents and has despite repeated requests and reminders has willfully failed and neglected to remit the monthly rents in time as and when the same has become due. Thus being as on date he is in arrears of rent to an extent of Rs.13,440/ for the period ending 31.05.1995. Under such circumstances, the petitioner brought to the notice of the respondent of her requirement of the schedule premises for the purposes aforesaid which is both bonafide and reasonable. The respondent though agreed to vacate had been taking time on one or other pretexts. Ultimately, at the instance of common friends who are also halling from Bagalkot that being the are of origin of both the parties agreed finally to vacate and handover the vacant possession of the schedule premises by end of April 1995. However, the respondent has now turned hostile and failed and neglected to vacate and hand over the vacant possession of the schedule premises.
The 1st respondent has acquired a property in Nagarabhavi Area in Bangalore and the said property has both residential and commercial units. As such the 1st respondent has become liable to be evicted under section 27(2) (j) of the Act also. Hence petitioner is constrained to file this petition.
SCCH - 11 5 HRC No.1082/1995
3. On service of summons, First and second
respondents appeared through their respective counsels, but second respondent not contested the matter. First respondent filed objection denying the contents of petition in toto. First respondent denied the relationship of land lord and tenant between him and the petitioner. Further denied that Smt.Basavannamma wife of late Sri.P.K.Kalligudda was the owner of the petition schedule premises and also denied that the respondent had been a tenant under the vendor of the petitioner in respect of petition schedule premises on a monthly rent of Rs.750/. It is denied that the respondent is a chronic defaulter in payment of rent and he is in arrears of rent to an extent of Rs.13,440/ for the period ending 31.5.1995. The petitioner never requested the respondent to vacate the schedule premises and the need of the petitioner, cannot be considered as she is not the owner of the petition schedule premises. The question of respondent taking time to vacate on one or the other pretext does not arise. The alleged requirement is neither reasonable nor bonafide besides being irrelevant as the petitioner is not the owner of the petition schedule premises as the jural relationship of landlord and tenant does not exist between the petitioner and the respondent. Neither the petitioner nor the family members SCCH - 11 6 HRC No.1082/1995 are staying at Bangalore. The requirement of petition schedule premises by the petitioner is not genuine and the petition is filed with uttered motive to get possession of the schedule premises in their summary proceedings, when the title of the petitioner to the schedule property is in dispute in the case filed by the 2 nd respondent amended as per orders . There is no more HRC petition filed under Section 21(1) (h) of the Karnataka Rent Control Act by one Smt.S.V.Sulochana on the file of Additional Small Causes bearing HRC.NO.673/95 in respect of the petition schedule premises. As there is no landlord and tenant relationship between the petitioner and the respondent there is no cause of action for filing the petition.
Further contended that, the petitioner is residing at No.209/1, Palace Corner Apartments, Sadashivanagar, Bengaluru which measures more than 4000 square feet and that the said property stood in the name of the petitioner and her husband and recently it has been gifted to their son. That the present house of the petitioner at Sadashivanagar is more spacious than the schedule premises. Further the petitioner and her husband together have constructed Bungalow in a portion of land measuring 3 acres bearing Sy.No.6465 of Tadasinakoppa, Nelamangala, Bengaluru Rural District. Further the petitioner SCCH - 11 7 HRC No.1082/1995 and her husband also owned spacious house at Malleshwaram, Bengaluru and very recently the same has been sold. Further stated that the petitioner is not in genuine need of the schedule premises.
Further denies that respondent No.1 has acquired property in Nagarbhavi Area in Bengaluru and the said property has both residential and commercial units and that the 1 st respondent has become liable to be evicted under section 27(2)(j) of the Act. On these grounds prayed for dismissal of petition with exemplary costs.
4. The petitioner in order to prove her case, has got examined as PW.1 and got marked documents at Ex.P1 to 83 and closed her evidence. On the other hand Respondent No.1 got examined himself as RW.1 and got marked documents at Ex.R.1 to R.7, has got examined one witness as RW.2 and got marked Ex.P.8 & 9 and closed their side of evidence.
5. Heard the learned counsels for petitioner and respondents on merits.
The learned counsel for petitioner has furnished citations as below: SCCH - 11 8 HRC No.1082/1995
1. Dahiben Vs. Arvindbhal Kalyanji Bhanusali 2020 SCC Online SC 562.
2. Haji Iqbal Shariff Vs. C. Manjula 2006 (6) Kant LJ
213.
3. A.Mohammed Noor Vs. R.Shariff 2006(9) SCC 215.
4. Bismillah Be (Dead) By Legal Representatives Vs. Majeed Shah 2017 (2) SCC 274.
5.Sheela and Others Vs. Firm Prahlad Rai Prem Prakash 2002 (3) SCC 375.
6. Apollo Zipper India Limited Vs. W.Newman and Company Limited 2018 (6) SCC 744.
7. Sheikh Noor Vs. Sheikh G.S.Ibrahim 2003 (7) SCC
321.
8. Boorugu Mahadev and Sons and Another Vs. Sirigiri Narasing Rao and Others 2016 (3) SCC 343.
9. Dilboo (Smt) (Dead) By Lrs. And others Vs. Dhanraji (Smt) (Dead) and Others 2000 (7) SCC 702.
10. Bismillah Be (Dead) By Leal Representatives Vs. Majeed Shah 2017 (2) SCC 274.
11. Ambica Prasad Vs. Mohd.Alam and Another 2015 (13) SCC 13.
The learned counsel for respondent No.1 has furnished citations as below:
1. Ashok Kumar Vs. Sri.Ananda Vadivellu (KAR HC 2007(6) KAR LJ 125).
2. N.Kamalamma Vs. H.S.Subbanarassaiah Sastry (KAR HC - 2010(1) KCCR 290).
3. Kanaklata Das Vs. Naba Kumar Das (SC - Civil Appeal No.3018/2018).
4. Har Narain Vs Mam Chand (SC - 2010 (13) SCC
128).
SCCH - 11 9 HRC No.1082/1995
5. Prem Prakash Gupta Vs. Sanjay Agarwal (Del - HC 2019 (173) DRJ 302).
6. Prem Naraian Vs. Mahabir Jain (Allahabad HC - Second Appeal No.2/90).
7. Vinay Eknath Lad Vs. Chin Mao Chen (SC - 2020 (1) SCJ 57).
8. J.J Lal Pvt Ltd Vs. M.R.Murali (SC AIR 2002 SC 1061).
9. Kaliaperumal Vs. Rajagopal (SC - AIR 2009 (75) 301 & AIR 2009 SC 2122).
10. Asrar Vs Om Prakash Mawar (Del HC - RFA No.699/2017 (MANU/DE/6104/2017.
11. The Extract of S230 A of the Income Tax Act, 1961.
6. The points that arise for the consideration of this court:
1) Whether the petitioner proves that, there is jural relationship of land lord and tenant between the petitioner and the respondent no.1 ?
2) Whether the petitioner is entitled for the possession of the petition schedule premises under KR Act?
3) Whether the petitioner is entitled for the relief sought in the petition?
4) What Order or Decree?
7. On hearing the petitioner and first respondent and on perusal of oral and documentary evidence on records, this court answers on the above points as here under:
Point No.1 : In the Affirmative
Point No.2 : In the Affirmative
SCCH - 11 10 HRC No.1082/1995
Point No.3 : In the Affirmative.
Point No.4 : As per final order, for the
following:
REASONS
8. POINT No.1 : One Sri.Parappa Kaligudda, the original allotte in respect of suit schedule property, who died issue less leaving behind his wife Smt.Basavannamma as legal heir, after demise of Sri.Parappa Kaligudda Smt.Basavanamma become the owner of the suit premises. Smt. Basavanamma sold the property in favour of petitioner for consideration of Rs.3,00,000/ on 24.12.1993. first respondent is the tenant in the suit schedule property.
9. Smt.Sulochana who is the second respondent in the present case claiming to be the owner of the suit schedule property by virtue of a will dated 14.04.1993 executed by Sri.Parappa Kaligudda, Smt.Sulochana filed P.Misc No.25/1985 probate proceedings converted into O.S.6752/1993 before the City Civil Judge Banglore, ownership has been declared in Smt.Sulochana's name in respect of the suit and a certificate of administration has been granted in respect of the said will. against the order Legal heirs of Basavanamma and petitioner preferred M.F.A No.3884/2001 on the file of the Hon'ble High SCCH - 11 11 HRC No.1082/1995 Court of Karnataka. Smt.Basavanamma w/o Late Parappa Kalligud executed a sale deed in respect of the suit schedule property in favour of petitioner, hence Smt.Sulochana filed O.S.No.4746/1996 for declaration to set aside the lade dated 24.12.1993.
10. As there is dispute with regard to the ownership of the suit schedule property. First respondent who is tenant in suit schedule property had filed H.R.C.No.107/1998 on the file of Prl.Small Causes Court seeking permission to deposit the rents which was dismissed. Against the said order, the first respondent preferred H.R.R.P No.1561/1998 the same came to be allowed. First respondent permitted to deposit the rent in court.
11. The suits filed by Smt.Sulochana that is O.S.No. 6752/1993 for grant of letter of administration of will dated 14.04.1983 and O.S.No.4746/1996 for declaring that the sale deed dated 24.12.1993 is null and void is decreed in favor of Smt.Sulochana, against the said order the petitioner of present case and coowner preferred M.F.A.No 3884/2001 and R.F.A No.1448/2003 before the Hon'ble High Court of Karnataka which are allowed and judgment and decree in SCCH - 11 12 HRC No.1082/1995 O.S.No.6752/1993 and O.S.No.4746/1996 are set aside. Against the orders Smt.Sulochana preferred Civil Appeal No(s) 5751/2009 before the Hon'ble Supreme Court. The Civil Appeal is dismissed. Sale deed executed by Smt.Basavanamma in favour of petitioner holds good and dispute with respect to the ownership of suit schedule property attains its finality.
12. Now reverts to the facts of present case, it is the case of the petitioner is that, she is the owner of the suit schedule property by virtue of sale deed dated 24.12.1993. Suit schedule property having been purchased by petitioner long with one Sri.Sangappa Basappa Ittagi from erstwhile owner one Smt.Basavanamma w/o late Sri.Parappa Kalligudda. The first respondent had been a tenant under the vendor of the petitioner on a monthly rental of Rs.750/ per month, the tenancy month being an English calendar month. the tenancy of the respondent continued the same having been duly attorned to immediately after the purchase of the schedule property. Petitioner requires the petition schedule premises for her bonafide use and occupation, the petitioner brought to the notice of the respondent of her requirement of the schedule premises, though first respondent agreed to vacate had been taking time on one or other pretexts, now turned hostile and failed and neglected to SCCH - 11 13 HRC No.1082/1995 vacate and hand over the vacant possession of the schedule premises.
13. To prove jural relationship, petitioner basis her source of Ex.P.1. Certified Copy of the sale deed, Ex.P.62 Registered Original Sale deed corroborated have been executed by one Smt.Basavannamma in favour of petitioner 24.12.1993 in respect of suit schedule property. Ex.P.62 resides that the said Smt.Basavanamma has sold the suit property in favour of petitioner wherein for Rs.3,00,000/ on 24.12.1993.
14. Initially petitioner not produced original registered sale deed, but later on petitioner produced Ex.P.62 Original Registered Sale Deed. It is settled that Section. 17 of Indian Registration Act mandates that, registration is compulsory in case of nontestamentary instruments purport or operate to create, declaration, assign, limit or extensive whether in present or in future of any right, title or interest, whether vested or continent of the value of 100 rupees onwards. Ex.P.62 in the present case is styled as sale deed and the contents thereof clearly reveals that, the said Smt.Basavannamma has transferred her right, title and interest in the suit property in favour of the petitioner for the consideration of Rs.3,00,000/.
SCCH - 11 14 HRC No.1082/1995 The petitioner in order to prove jural relationship of land lord and tenant between petitioner and first respondent has got examined as PW.1 and got marked documents Ex.P.1 to Ex.P.84 PW.1 reiterated the averments of petition in her examination in chief. Along with Ex.P.62 sale deed petitioner also produced Ex.P.Ex.P.3 Attorn notice, Ex.P.64 Encumbrance Certificate, Ex.P.65 Special notice issued by BBMP and Ex.P.66 Khatha Extract.
15. Petitioner produced Ex.P.1 Certified Copy of the sale deed, Sale deed was not produced at the initial stage, petitioner has given reasons as to why she could not produce it earlier. The sale deed also could not be produced because the registration was with held for sometime. Petitioner filed a writ petition and seek a direction to the District Registrar to issue certified copy of the sale deed. The writ petition was allowed and a direction was given to the District Registrar and thereafter the petitioner produced copy of sale deed, then petitioner produced Ex.P.62 Original Sale deed.
16. First respondent who is tenant in suit schedule property denied the jural relationship. Also denied the ownership. It is the contention of first respondent that, the petitioner is not the owner of the petition schedule premises.
SCCH - 11 15 HRC No.1082/1995 Petitioner is a stranger to the petition schedule premises, petitioner purchased the property during the pendency of O.S.No.6752/1993 and that the purchaser pendetlite is having no right, title and interest in respect of the property and that the sale deed obtained is a fraudulent sale deed. Counsel for first respondent submits that, the alleged sale deed executed on 24.12.1993 Smt.Basavanamma died in the year 1994, sale deed registered after death of Smt.Basavanamma that is in the year 31.07.1997 and sale deed released in the year 2018. Hence there is no registered sale deed in favour of the petitioner as on the date of filing of present petition. There is no rent agreement between petitioner and first respondent, first respondent never paid any rent to the petitioner. Hence, there is no jural relationship of landlord and tenant between petitioner and respondent No.1. Further contended that there is a dispute regarding title, hence this court not having power to decide the question of title, hence prays to direct the parties to approach jurisdictional civil court for adjudication.
17. No doubt, this court being a rent court, is require to adjudicate the jurisdictional fact, like relationship of landlady and tenant, therefore, this court is having jurisdiction to adjudicate the same. At the same time, the law is well settled SCCH - 11 16 HRC No.1082/1995 that if really the dispute is complicated, perhaps involving the dispute of title, or otherwise, the relationship of landlady and tenant is raising the serious dispute, where this court may not obtain the jurisdiction to a adjudicate the said dispute except referring the parties to approach civil court for the adjudication for their dispute of title of the parties. In the present case first respondent filed application U/s.43 to refer matter to civil court, which was rejected by this court.
18. In support of his argument learned counsel for first respondent relied on decisions reported in 1. KAR HC 2007(6) KAR LJ 125, between Ashok Kumar Vs. Sri.Ananda Vadivellu (Raju), wherein it is held that: Ratio Decidend:
"If once the relationship has been disputed by the tenant and denied the existence of relationship of land lord and tenant between the parties, it is duty of the Court below to follow the mandatory provisions of the Rent Act.".
"The grievance of the petitioner in this petition is that, petitioner has filed an application under section Karnataka Rent Act, 1999 before the Trial Court, in HRC No.298/2006, seeking appropriate relief to further proceedings and to direct the petitioners therein to approach the competent court of civil jurisdiction declaration of their rights, on the ground that, he is disputing the jural relationship of landlord and tenant. The Trial Court after hearing both sides, has rejected the I.A.No.V filed by petitioner in HRC No.298/2006 holding that, respondents herein have prima facie produced documents to show that schedule property is transfered in their names and respondents therein have got SCCH - 11 17 HRC No.1082/1995 opportunity to rebut the presumption and this a mixed question of law and fact which requires the evidence and opined that the said application filed by petitioner is not maintainable, when the matter is at the stage of recording the evidence of parties."
"After careful perusal of the impugned order passed by the Trial Court on I.A. It is manifest on the face of the order that the Trial Court has committed a grave error and material irregularity in passing the said order, without assigning and valid reasons for rejecting the application filed by petitioner herein, except making a reference that, prima - facie respondents herein have produced the documents to show that the schedule property is transfered in their favour and the petitioner herein has got opportunity to rebut the presumption and the said application is not maintainable at the stage when the matter is posted for recording the evidence. The said reasoning given by the Trial Court for rejecting the application filed by petitioner cannot be sustained, in view of non following the ingredients of Section 43 of the Karnataka Rent Act, 1999. The Trial Court has not appreciated the stand taken by petitioner as well as the respondents in their written statements filed and in view of the well settle preposition of law laid down by this court that, if once the relationship has been disputed by the tenant and denied the existence of relationship of land lord and tenant between the parties, it is duty of the Court below to follow the mandatory provisions of the Rent Act, and after considering the stand taken by both the parties and after appreciation of relevant materials available on file dand then proceed with the matter in strict compliance of the relevant provisions of the Act. But in the instant case, the Court below has not strictly followed section 43 and it has proceeded to dismiss the application without testifying the objections raised by petitioner in their application. The impugned order passed by Court below cannot be sustained, in view of non consideration of the mandatory provisions of the rent act."
KAR HC - 2010 (1) KCCR 290 between N.Kamalamma Vs. H.S.Subbanarasimha Sastry.
SCCH - 11 18 HRC No.1082/1995 "The petitioner has challenged the concurrent findings of the Courts below rejecting her application filed under section 21(1) (a) (h) (f) and (j) of the Karnataka Rent Control Act, 1961 (hereinafter called as 'th 1961 Act' for short), confirmed in Rent Revision 16/1985 by the District Judge, Tumkur.
The petitioner herein filed a petition under Section 21(a) (h) (f) and (j) of the Act of 1961 before the Trial Court seeking eviction of the respondent herein and to grant the vacant possession of the petition premises bearing Khatha No.2004/1981, Door No.65, Ravi Talkies Road, KR Extension, Madhugiri Town, Madhugiri, Tumkur District, described in the schedule to the petition.
The petition premises belong to Sri.K.G.Venkatararnana Setty who died on 20.11.1980 without any issues and leaving behind the petitioner, his sister, as his only heir, as his wife had predeceased him. It is averred that the petition premises was let to the respondent on a monthly rental of Rs.15000 in the year 1979. The respondent had not paid the rent of the premises from 01.11.1979 prior to the death of the brother of the petitioner deceased Sri.K.G.Venkatararnana Setty and even subsequent to his death. Thereby, the petitioner issued a notice dated 28.03.1981 to the respondent by Registered Post and it returned with an endorsement as 'addressee refused'. The petitioner alleged that the respondent is due in a sum of Rs.2,85000, the arrears of rent up to the end of 30.05.1981 and thereby, sought eviction on the grounds under section 21(1)(a)(h)(f) and (j) of the 1961 Act.
The respondent who appeared before the Trial Court filed his objections statement admitting the fact that the petition premises was owned by Sri.K.G.Venkataramana Setty and that he died in the year 1980. He did not admit the averments that the petitioner is the legal heir of the deceased. He denied the relationship of landlord and tenant between the petitioner and himself and all other averments with regard to the rental of the premises, the arrears due and the demand made.
The Trial Court on appreciation of the material on record, after hearing the parties rejected the petition holding that there is no relationship of landlord and SCCH - 11 19 HRC No.1082/1995 tenant between the parties and aggrieved by the said order, the petitioner approached the District Judge in RR 16/1985 and the said revision petition was dismissed on merits confirming the finding of the Trial Court. Aggrieved by the concurrent findings of the Courts below, the petitioner approached this Court in revision.
This court disposed of the revision petition on merits vide order dated 21.08.2001 and the orders of the Courts below were set aside and the eviction petition filed by the petitioner was allowed granting one and half years time to vacate and hand over the petition premises to the petitioner. Aggrieved by the order of this Court, the respondent approached the Apex Court in Civil Appeal Nos. 4720 - 4721/2002 and the order dated 31.03.2009, the Apex Court allowed the appeals by setting aside the order of this court and remitted the matter for fresh disposal in accordance with law and it is under these circumstances that the matter has come up for hearing."
"At the same time, the petitioner has filed O.S.No.111/2001 in the Court of the Civil Judge, Madhugiri and the copy of the amended plaint has been produced wherein he has sought for a declaration that he is the absolute owner of the suit schedule property which includes the petition premises and for vacant possession of the same, in addition to the mesne profits. It is submitted by the Counsel that this suit was dismissed for default and Misc.8/2007 is pending for its restoration. So, as could be seen from these subsequent events between the parties, they have now diverted themselves to the Civil Court for seeking the relief and as could be seen from the evidence led by both the parties, in my considered opinion, there is a complicated question which requires to be decided by the Civil Court."
The counsel for the respondent has relied on the decision reported in MANU/KA/0796/2002: ILR 2003 KAR 4255 (Ayesha Begum V. Shahzadi) wherein this court took into consideration the provisions of Section 43 of the 1999 Act, wherein there was concurrent findings by both the Courts below in favour of the tenant and it is held by this Court that Section 43 makes it mandatory for the Court to stop all further proceedings and direct the parties to approach the SCCH - 11 20 HRC No.1082/1995 competent Court of Civil jurisdiction for declaration of their rights. He also relied upon the decision reported in ILR 2007 KAR 374 (R. Abbaiah Reddy and Ors. V. Udaya Chandra) wherein the jural relationship of landlord and tenant was disputed and both the courts below dismissed the petition and this court held that there was a complicated dispute regarding the title and it directed the parties to approach the competent civil court for declaration of their rights.
19. So now, as could be seen from the provisions of section 43, it reads:
"Admittedly, there is no written agreement of lease between the parties and also there is no rent receipt, i am of the opinion that there is a civil dispute which cannot be determined under the provisions of the Act of 1999 by adopting summary procedure.
The proof of the relationship of landlord and tenant is not a matter of presumption and there must be positive evidence to prove the same. No doubt, there is some inconsistency so far as the sale consideration is concerned, but it is for the Civil Court to take into consideration the same and decide the validity of the agreement of sale.
So ultimately, the only course left open to this Court is to have the recourse to the provisions of Section 43 of the Act of 1999 and to direct the parties to approach the Civil Court for declaration of their rights. In view of the fact that already the parties are before the Civil Court to different litigations, the findings will have to attain finality.
Taking into consideration the appreciation of the materials on record by the trial court and also the Revisional Court, i do not find any such grounds to set aside the findings. In that view of the matter to prove the jural relationship of landlord and tenant between the parties, they have to get a declaration from the Civil Court.
Though the provisions of Section 43 Clause (b) provides that the Courts shall at once stop all further SCCH - 11 21 HRC No.1082/1995 proceedings before it and direct the parties to approach the competent Civil Court for declaration of their rights, as the parties are already before the Civil Court, they can seek the relief before the said Courts and in case, if they need an order of this Court after the termination of the proceedings in the Civil Cases, they are at liberty to approach this court and to reopen these proceedings. In that view of the matter, i answer Point No.1 - directing the parties to get the declaration from the Civil Court, Point No.2 - reserving a right to the parties to approach this Court after the termination of the proceedings in the Civil Court, if they require;
Order - The revision petition is disposed of by stopping all further proceedings in this court and directing the parties to get declaration of their rights in the competent court of civil jurisdiction and reserving them a right to approach this court after the termination of the proceedings in the civil court, if they need an order of this court".
SC - Civil Appeal No.3018/2008 between Kanaklata Das Vs. Naba kumar Das, wherein it is held that:
"The appellants have filed a suit for ejectment being Ejectment Suit No.1615/2000 against respondent Nos.2 to 5 before the Small Causes Court at Calcutta for their eviction on the grounds of nonpayment of rent, subletting, and bonafide need of the suit premises for their personal use under the provisions of the West Bengal Tenancy Act.
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 secoond, the ground(s) on which the plaintifflandlord has sought defendant's tenant's eviction under the Rent Act exists. When these two things are proved, eviction suit succeeds.
SCCH - 11 22 HRC No.1082/1995 Conversely, if the landlord proves his title to the suit premises but fails to prove the existence of relationship of the landlord and tenant in relation to the suit premises, the eviction suit fails. (SeeDr.Ranbir Singh Vs. Asharfi Lal, 1995(6) SCC 580).
In the eviction suit, the question of title or the extent of the shares held by the appellants and respondent No.1 against each other in the suit premises cannot be decided and nor can be made the subject matter for its determination.
We, however, make it clear that any finding whether directly or indirectly, if recorded by the Trial Court touching the question of title over the suit property, would not be binding on respondent No.1 regardless of the outcome of the suit and respondent No.1 would be free to file an independent civil suit against the appellants for a declaration of his right, title and interest in the suit premises and in any other properties, if so, and claim partition and separate possession of his share by metes and bounds in all such properties."
20. The Learned counsel for petitioner relied on decisions reported in Sri.C.Somasundaram Vs. Smt.S.Rukmini reported in 2015(3) Kar.L.J.432(Para Nos.8 & 9): "The petitioner/tenant has admitted that he was a tenant under Smt.H.D.Meenakshi. This Court by following the reported precedents has once again held that when once the ownership is transferred the transferee becomes owner of the premises. The tenant cannot dispute the right of the transfereelandlord to maintain an eviction petition under the Rent Act or to claim rent. Attornment by the tenant is unnecessary to confirm validity to the transfer of the lessor's rights. Section 43 of the Rent Act cannot be relied upon by the tenant who does not deny his status but only denies that the person who has presented the eviction petition against him is not landlord."
SCCH - 11 23 HRC No.1082/1995
21. I am not disputed the dictum of Hon'ble High Court of Karnataka and Hon'ble Supreme Court of India of which the citations relied by respondent No.1. Admittedly, this court being the small cause court cannot adjudicate and try upon the dispute involving the title and hence suit has to be dismissed or direct the parties under section 43 to approach proper civil court. But this contention of first respondent is not acceptable. Section 16 of Karnataka Small Causes Act deal with return of plaint. But the said section does not lay down that the plaint has to be returned just because the respondent raises the question of title. The words used in the section 16 are "may return the plaint". It does not say that it shall return the plaint, in the decision of Mubarak Ali V/s IV Addl. District Judge, Gorakpur, reported in 1991(1) CRC 275 at pat 277: "while dealing with section 23 of Provincial Small Causes Court act, which is similar to that of section 16 of Karnataka Small Causes Courts act, it is held that the Section confers on the court of small causes a discretion either to decide the question of title or not at its option. It is not to act under the section and return the plaint." In the decision of Narayan V/s Balaji reported in ILR 21 Bom 246 it is held that: "By virtue of the bare fact that a question of title arises in the suit, it does cease to be cognizable SCCH - 11 24 HRC No.1082/1995 by a court of Small Causes court. All that the section does is to point out a course which the court may adopt when it is of the opinion that it cannot conveniently try such question as small causes court." In the same manner, it is held in decision of Lahbu Ram V/s Mool Chand reported in AIR 1921 Lah 91 Patna that "A question title to immovable property can no doubt be decided incidentally by a small causes court, but section 23 clearly gives the court a discretion in cases in which the right of the plaintiff dependents upon the proof or disproof of the title to the immovable property or other title which the court cannot finally determine, to return the plaints." In the same manner in decision of Shankar Shai V/s Prabhu Dayal reported in AIR 1934 All pat 696 it is held "where the plea of title set up by the defendant is not bonafide or where the court of small causes court considers that it is not necessary to decide the question of title, it will not return the plaint." Even the Hon'ble Supreme Court also in Budhu Mal V/s Mahabir Prasad reported in 1988(2) ARC 260(SC) has expressed the same opinion. However, it is pertinent to note that as per the ruling reported in ILR 1987 KAR 3464 (Pratapsingh V/s Jaibunissa Begum) held that "if the question of title is complicated one and it is raised with bonafide intention, then court has to return the plaint. In SCCH - 11 25 HRC No.1082/1995 the same judgment, it is also laid down that whether a question of title raised by the defendant is complicated one or not and whether it is bonafide or not will be a mixed question of fact and law and to decide it the court has to consider the nature of plea, facts giving raise to such plea, genuineness of plea, material placed by the parties and various circumstances of the case." It is held by Hon'ble Supreme Court in case of Gangabai V/s Chhabuabai reported in (1982) 1 SCC 4 that "when finding as to the title to immovable property is rendered by a court of small causes, resjudicata cannot be pleaded as a bar in a subsequent suit in respect the same immovable property. In order operate as resjudicate, the finding must be one disposing of a matter directly and substantially in issue in the former suit and issue should have been heard and finally decided by the court trying such suit. A matter which is collaterally incidentally in issue, for the purpose of deciding the matter which is directly in issue the case cannot be making on the basis of rejudicate. A question of title in a small cause suit can be regarded as incidental only to the substantial issue in the sit and cannot operate as res judicata in a subsequent suit in which the question of title is directly raised."
SCCH - 11 26 HRC No.1082/1995
22. The fact of present case are different and the question of title at hence its finality. Hence, the citations furnished by 1 st respondent not applicable to the case on hand. From the above discussion and decisions in Para No.25, it is very clear that, it is the discretionary and convenient of the small cause court to decide or not to decide the question of title. However, it is pertinent to note that the small cause court cannot decide the title if it is arisen as main question and grant the relief of title and it can only decide title incidentally and not finally. In the present case there is dispute regarding ownership between petitioner and second respondent Smt.Sulochana and both parties approached Hon'ble Supreme Court and the question with regard to title of the suit schedule property, sale deed holds good and attain its finality. It is pertinent to note that many times the relief sought by the petitioner can be granted even without giving finding as to the title. As such in every case, always it is not necessary that there should be a finding on the issue of title to grant or reject the relief sought in the suit. Only if the relief sought by the petitioner is dependent on the proof or disproof of the title over the suit property, then only the court is bound to give findings on the question of title. In the present suit the ownership of property attains its finality and the order of SCCH - 11 27 HRC No.1082/1995 Hon'ble Supreme court binds respondent including third parties. In the present case, the main issue/question is Jural relationship of landlady and tenant between the petitioner and first respondent. If the petitioner has succeed in proving the jural relation ship, then this court need not give findings as to title of the petitioner. If this court comes to the conclusion that there is no jural relation ship, then only to grant or reject the relief sought by the petitioner, this court has to examine whether the petitioner has got title to the suit property or not. To decide whether an issue of title arisen is a main issue or it is only incidental, the fact to be considered is the relief sought by the parties. In the present case, the relief sought by the plaintiff is the relief of eviction/ejectment. To grant or reject the relief of eviction, there is no need of giving findings on the titled of the petitioner. It is sufficient if this court gives finding on the issue of relationship of land lady and tenant between the petitioner and first respondent.1. Hence, there are no grounds to refer the matter to Civil Court.
23. At the outset, it is pertinent to note that, as rightly contended by the counsel for the first respondent in the arguments as the first respondent has denied the relationship of landlord and tenant between petitioner and first respondent, the SCCH - 11 28 HRC No.1082/1995 burden of proving the said fact is the petitioner and not on the first respondent. Because, it is the petitioner who has approached this court of law seeking relief of ejectment. Petition moved by the petitioner against the respondents U/s 27(2)(j) and (o) of Karnataka Rent Act. It is the case of the petitioner that, the respondent no.1 is her tenant and she require the schedule premises for her use and occupation also use and occupation of her family members.
24. The petitioner in order to prove the relationship of landlord and tenant between petitioner and first respondent, petitioner got examined herself as PW.1 filed her affidavit in lieu of her examination in chief reiterating the contents of petition averments. It is the contention of petitioner that, she purchased the property from Smt.Basavannavva, the wife of Sri.Parappa Kalligudda on 24.12.1993 for consideration of Rs,3,00,000/. Petitioner produced Ex.P.1 Certified copy of Sale Deed, Ex.P.2 Notice issued by Dist. Registrar, Ex.P.3 Attornment Notice, Ex.P.62 Original Sale Deed dated: 24.12.1993, Ex.P.62(a to n) - Signatures, Ex.P.63 Original Sale Deed dated: 10.10.2018, Ex.P.64 Encumbrance Certificate, Ex.P.65 Special notice issued by BBMP, Ex.P.66 Khatha Extract.
SCCH - 11 29 HRC No.1082/1995
25. The petitioner specifically pleaded that, suit property purchased by her along with one Sri.Sangappa Basappa Ittagi vide registered sale deed dated 24.12.1993 for valid consideration from its erstwhile owner one Smt.Basavannamma wife of late Sri.P.K.Kalligudda. Attorn notice issued by coowner Sri.Sangappa Ittagi. On the other hand first respondent not only denying the existence of the jural relationship of the landlord and tenant but also denying the existing title of the petitioner. First respondent disputed the endorsement on Copy of sale deed Ex.P.1 and Ex.P.62 Original sale deed. First respondent disputed the genuineness sale seed. But as per section 116 of Indian Evidence Act tenant cannot question the title of owner. Section 116 of Indian Evidence Act reads thus "No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property, and no person who came upon any immovable property by the license of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such SCCH - 11 30 HRC No.1082/1995 license was given". A tenant who has been let into possession cannot deny his landlord's title however defective it may be so long as he continues to be a tenant and has not surrendered possession to the landlord.
26. The learned counsel for petitioner relied on citation reported in Smt.Sandhya.K.R. and another Vs. Smt.Rukmini reported in 2015(3) Kar.L.J. 641 (Para No.8): "The petitioners/tenants have contended that they were not the tenants under the respondent - owner but they were tenants under Smt.H.D.Meenakshi who is none other than the vendor of the respondent.
Smt.H.D.Meenakshi has sold the property in favour of Smt.Asha who in turn has sold the property in favour of Smt.Asha who in turn has sold the property in favour of the respondent. The petitioners/tenants have admitted that they were tenants under Smt.H.D.Meenakshi. When once the ownership is transferred the transferee becomes owner of the premises. The tenant cannot dispute rights of the transferee/landlord to maintain an eviction petition under the Rent Act or to claim rent. Attornment by the tenant is unnecessary to confer validity to the transfereee of the lessor's right. Section 109 of the Transfer of Property Act, 1882 creates a statutory attornment."
Mr.David Paul Vs. Karunakar M.Shetty and another reported in 2003 (3) - KCCR 2272 - (Para No.9): "No one can dispute that the vendors of the present Respondent being the brothers and sisters of the deceased could be indentified by law with the deceased landlord whom they represented while disposing of the property to the present respondent and it has to be SCCH - 11 31 HRC No.1082/1995 construed in law that the sale had been exercised by the deceased landlord himself through his living substitutes. Therefore, the very basis on which the petitioner is trying to wriggle out of the proceedings in the HRC Court is not open to him in law. The revision is, therefore, liable to be dismissed."
27. The learned counsel for First respondent relied on citation reported in SC - 2020 (1) SCJ 57 between Vinay Eknath Lad Vs. Chin Mao Chen. Lordships held that -
"The appellant before us is the owner of a premises comprising of a shop room numbered 3 in the ground floor of Sabari Complex, Residency Road, Richmond Town, Bengaluru 560025. The mother of the sole respondent was inducted as the lessee of the subject - premises on 10th May, 1978. The original plaintiffs claim to have had derived their right, title and interest to the subject premises from the partnership firm after its dissolution. The trial court decreed the suit for possession as well as mesne profit from the date of service of notice of termination. The defendant, however, was successful in his appeal before the High Court and the judgment of the Trial Court was reversed. The present appellant is the successorininterest of the seventeen individuals who had instituted the suit in the name of joint proprietary firm. This appellant claims to have had purchased the subject premises from the original owners."
The main question which arises for determination in this appeal is as to whether the original plaintiffs had the locus to institute the suit or not. The suit was resisted by the defendant on the ground that the said plaintiffs could not have had terminated the tenancy as they did not have jural relationship with the defendant to initiate action. It has been urged in support of this contention that there was no attorned in this case and no public notice was issued on dissolution of the firm as per provisions of Section 45(1) of the 1932 Act. In the plaint, there is no specific pleading showing the manner in which the plaintiffs derived title or SCCH - 11 32 HRC No.1082/1995 interest to the subject - premises. The defendant contested the suit by filing written statement. Proper service of termination notice was also denied and certain other points were raised, but the suit was mainly contested on the issue of lack of jural relationship between the original plaintiffs and defendant.
It is the contention of the Defendant that U/a 40C of the Karnataka Stamp Act, while the property is being partitioned among strangers, there shall have been stamp duty paid to the Government. In the instant case, no such thing has been done. In view of the said provision, the court below has framed issues relating to jural relationship. It is further referred that legal notice Ex.P.9 was issued in the name of coowners of the property and the defendant has been paying rent to the plaintiff continuously. Therefore, the plaintiffs have been declared as landlords of the suit schedule property and the defendant is the tenant.
The High Court had sustained the plea of the Defendant that there was improper stamping of the deed of coownership. The Defendant's case on this point has been that birth of the coownership firm was not on the basis of distribution of assets after dissolution of a partnership firm but there was conveyance of the assets of the firm. For this purpose, registration of the instrument of conveyance on proper payment of stamp duty was not effected. The High Court accepted the defendant's stand that the plaintiffs could not establish their locus standi to institute suit for recovery of possession.
We accept the Plaintiff's stand that the principle of estoppel bars a tenant from questioning the title landlords. This is incorporated in Section 116 of the Evidence Act. But this principle cannot be made applicable in the present case straightaway as the main defence set up by the tenant is that he had acknowledged the said partnership firm as the landlord but questioned the locus standi of the plaintiffs, who operated under the same trade name. In absence of attornment or public notice of dissolution, the defendant had no way of having knowledge of change of landlord of the subject premises from partnership firm to a co ownership concern. The coowernship firm admittedly was not the defendant's landlord at the time of SCCH - 11 33 HRC No.1082/1995 commencement of the lease. Thus, identity of the landlord stood trade name. For this reason, the very fact that rent was continued to be paid to Sri.Sabari Corporation cannot constitute acceptance of the original plaintiffs as the landlord by the defendant.
28. It has been held by a two Judge bench of this Court in the case of Bismillah Be (Dead) by Legal Representatives v. Majeed Shah MANU/SC/1557/2016: 2017 2 SCC 274:
"Law relating to derivative title of the landlord (Lessor) and challenge, if made, to such title by the tenant (Lessee) during subsistence of tenancy in relation to demised property is fairly well settled. Though by virtue of Section 116 of the Evidence Act, 1872, the tenant is estopped from challenging the title of his landlord during continuance of the tenancy, yet the tenant/lessee is entitled to challenge the derivative title of an Assignee/Vendee of the original landlord (Lessor) of the demised property in an action brought by the Assignee/Vendee against the tenant for his eviction from the demised property under the Rent laws. This right of a tenant is, however, subject to one caveat that the tenant/lessee has not attorned to the Assignee/Vendee of the tenanted property then it results in creation of an attornment between the parties which, in turn, deprives the tenant/lessee to challenge the derivative title of an Assignee/Vendee in the proceedings."
29. This authority has been followed in a later case, Apollow Zipper India Limited V. W.Newman and Company Limited (MANU/SC/0431/2018: (2018) 6 SCC 744). It has been held in this case:
"Similarly, the law relating to derivative title to the landlord and when the tenant challenges it during SCCH - 11 34 HRC No.1082/1995 subsistence of his tenancy in relation to the demised property is also fairly well settled. Though by virtue of Section 116 of the Evidence Act, the tenant is estopped from challenging the title of his landlord, yet the tenant is entitled to challenge the derivative title of an assignee of the original landlord of the demised property in an action brought by the assignee against the tenant for his eviction under the rent laws. However, this right of a tenant is subject to one caveat that the tenant has not attorned to the assignee's title over the demised property, then it results in creation of the attornment which, in turn, deprives the tenant to challenge the derivative title of the landlord".
30. I am also not disputed the dictim of the Hon'ble Supreme Court of India held in above case, but facts of present case are different, petitioner produced Sale Deed, Attorn Notice and 1st respondent having knowledge about all the proceedings between Smt.Sulochana, Smt.Basavannamma, LR's of Basavannamma and petitioner. 1St respondent aware of the orders passed by the Honb'le High Court of Karnataka and Hon'ble Supreme Court of India where the question of title attains the finality. First respondent aware about all the proceedings between Smt.Sulochan, Lrs of Smt.Basavanemma and the petitioner, in some proceedings first respondent also made as party, hence now he cannot deny, and the order passed by the Hon'ble High Court and Hon'ble Supreme Court of Indian are binding on the first respondent including third party. Hence, SCCH - 11 35 HRC No.1082/1995 now the 1st respondent being tenant cannot question the title of petitioner.
31. Further first respondent disputed the endorsement on Ex.P.1 Certified Copy of Sale deed and Ex.P.62 Registered Original sale deed. But during cross examination PW.1 deposed that, it is an Xerox machine mistake. It is the contention of petitioner that, she is the owner of the suit property by virtue of sale deed dated 24.12.1983. The first respondent disputed the registration of sale deed. The documents through which the plaintiffs claim to have come to own the property were not genuine, there is no endorsement on Ex.P.1 as in Ex.P.62 sale deed. For that reason, such document could not be relied upon. To this argument of the respondent, stand of the petitioner has been that once a document has been admitted without objection, such objection could not be taken on later stage. As the document which was effectively made exhibit and relied upon, is exhibit P1 and Ex.P.62. Petitioner purchased the suit property by Smt.Basavannamma Wife of late Sri.Parappa Kalligudda. After purchase the same is intimated to the first respondent by coowner Sri.Sangappa Ittagi. First respondent not disputed that he is in the occupation of suit schedule property in the capacity of tenant. Admittedly first respondent is the tenant under SCCH - 11 36 HRC No.1082/1995 Sri.Parappa Kalligudda and after his demise his wife Smt.Basavannamma become the owner of the property, Smt.Basavannamma sold the property in favour of petitioner through sale deed dated 24.12.1983. Ex.P.62 is Registered sale deed. During cross examination first respondent not denied that, he was the tenant under Late Sri.Parappa Kalligudda. After death of Sri.Parappa Kalligudda petitioner purchased the suit property from Smt.Basavannamma wife of Late Sri.Parappa Kalligudda. The plaint, exhibits and deposition of the petitioner adequately explain the journey of the subject premises from the erstwhile owner of suit property, who had inducted first respondent as a tenant.
32. Further it is the contention of firs respondent that, Smt Basavanamma not need of money, no consideration was passed hence the sale deed is not completed and registered. Admittedly the first respondent is third party to the sale deed. Sale deed executed by Smt.Basavannamma in favour of petitioner. Sale itself being defined as "Transfer of ownership in exchange for a price paid or promised or part paid and part promised." In normal pariance, the execution of a document means signing the same, sealing and delivery of a document. The term may be define as a formal completion of a deed. Section 54 SCCH - 11 37 HRC No.1082/1995 of T.P.Act provides that sale of tanzible immovable property of the value of rupees 100 and upwords, can be made only by a register instrument. In the present case initially petitioner not produced original sale deed. Petitioner given reasons for non registration of sale deed by the registering authority. Perused Ex.P.62 Original Sale deed the recitals of deed showing that, the property sold for Rs.3,00,000/, in this case is that the sale became operative and hence completed on 24.12.1993 the proper construction of the deed of sale was that it became operative from the day it was executed and that if it was not so, it was not a sale but only be an agreement to sell. Sale in the present cast must be deemed to have been completed on the day the instrument was executed. The purpose of registration is to provide information to people who may deal with property. Registration of document gives notice to the world that such a document has been executed. Section 47 of the Registration Act does not, however say when a sale would be deemed to be complete. It only permits a document when registered, to operate from a certain date which may be earlier than the date when it was registered. Section 61 - When a sale deed to be made by a register instrument is became complete on the completion of the registration of the instrument of sale, which was executed on SCCH - 11 38 HRC No.1082/1995 24.12.1993. When the instrument was copied out in the books of the Registration office. In this case, during her life time Smt.Basavanamma or after the death of her the legal heirs of till today have not made any demand for consideration amount, not disputed the sale deed executed by Smt.Basavannamma in favor of petitioner.
33. At this stage learned counsel for petitioner relied on decision reported in Poovappa Bangera and Others Vs The Land Tribunal, Belthangady and Others in ILR 2004 KAR 4786, Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) (D) The Lrs and Others reported in 2020 SCC Online SC 562 (para 18) "As per the Plaintiffs, the Sale Deed was executed on 02.07.2009 in favour of Respondent No.1, which was registered before the Office of the SubRegistrar, for which the plaintiffs would have remained personally present. The transaction having been executed through a registered document, was in the public domain, and in the knowledge of the plaintiffs right from the beginning."
The Trial Court noted that there was no averment in the plaint that the cheques had not been received by them. Once the cheques were received by them, in the normal course, they would have presented the cheques for encashment within 6 months. The court held that had the plaintiffs not been able to encash 30 cheques, a complaint ought to have been filed, or proceedings initiated for recovery of the unpaid sale consideration. There was however, nothing on record to show that the plaintiffs had made any complaint in this regard for a period of over 5 years.
SCCH - 11 39 HRC No.1082/1995 The plaintiffs also failed to produce the returned cheques, their passbooks, bank statements, or any other document to support their averments in the plaint.
A notice for transfer of the suit property in the revenue records under Section 135D was served on the plaintiffs, to which no objection was raised. The name of Respondent No.1 was entered into the revenue records, which was certified by the Revenue Officer.
The Trial Court held that the period of limitation for filing the suit was 3 years from the date of execution of the sale deed dated 02.07.2009. The suit was filed on 15.12.2014. The cause of action as per the averments in the plaint had arisen when the Defendant No.1/Respondent No.1 had issued 'false' or 'bogus' cheques to the plaintiffs in 2009. The suit for cancellation of the Sale Deed dated 02.07.2009 could have been filed by 2012, as per Articles 58 and 59 of the Limitation Act, 1963. The suit was however filed on 15.12.2014, which was barred by limitation.
The suit property was subsequently sold by Respondent No.1 to Respondent No.2 & 3 by a registered sale deed dated 01.04.2013. Before purchasing the suit property, the Respondent Nos.2 and 3 had issued a public notice on 14.08.2012. The plaintiffs did not raise any objection to the same.
The Trial Court, on the basis of the settled position in law, held that the suit of the plaintiffs was barred by limitation, and allowed the application under Order VII Rule 11 (d) CPC.
The Division Bench of the High Court took note of the fact that the plaintiffs did not deny having executed the registered sale deed dated 02.07.2009 in favour of Respondent No.1. In the said Sale Deed, it was specifically admitted and acknowledged by the Plaintiffs that they had received the full sale consideration. The Sale Deed contained the complete particulars with respect to the payment of sale consideration by Respondent No.1 through 36 cheques, the particulars of which were recorded therein. Since the execution of the Sale Deed was not disputed, and the conveyance was duly registered in the presence of the plaintiffs before the SubRegistrar, the Sale Deed could not be declared to be void, illegal, or ineffective.
SCCH - 11 40 HRC No.1082/1995 The present suit for cancellation of the Sale deed was filed by the plaintiffs after a period of over 5 years after the execution of the Sale Deed dated 02.07.2009, and 1 year after the execution of the Sale Deed dated 01.04.2013 by Respondent No.1. It was noted that prior to the institution of the suit on 15.12.2014, at no point of time did the plaintiffs raise any grievance whatsoever, of not having received the full sale consideration mentioned in the Sale Deed dated 02.07.2009. It was for the first time that such an allegation was made after over 5 years from the date of execution of the Sale Deed dated 02.07.2009.
Since the suit in respect of the Sale Deed dated 02.07.2009 was held to be barred by law of limitation, the High Court was of the view that the suit could not be permitted to be continued even with respect to the subsequent Sale deed dated 01.04.2013. The plaintiffs had not raised any allegation against respondent no.2 and 3, and there was no privity of contract between the plaintiffs and respondent No.2 and 3.
The remedy under Order VII Rule 11 is an independent and special remedy, wherein the court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provisions. Also relied on citations reported in Azhar Hussain V. Rajiv Gandhi held Clauses 3 and 4 of the Sale Deed are extracted herein below for ready reference: "Since the full amount of consideration of the sale as decided above, has since been paid by you the Vendees to we the Vendors of this sale deed, for which we the vendors of this sale deed acknowledge the same so, we or our descendants, guardian or legal heirs is to take any dispute or objection in future that such amount is not received, or is received less, and if we do so then, the same shall be void by this deed and, if any loss or damage occurs due to the same then, we the vendors of SCCH - 11 41 HRC No.1082/1995 this sale deed and descendants, guardians, legal heirs of we the vendors are liable to the pay the same to you the vendees or your descendants, guardian, legal heirs and you can recover the same by court proceedings.
We the party of Second part i.e., Vendors of the sale deed since received full consideration on the above facts, the physical possession, occupancy of the land or the property mentioned in this sale deed has been handed over to you the Vendee of this sale deed, and that has been occupied and taken in possession of the land or property mentioned in this sale deed by you the Vendee of this sale deed by coming at the site and therefore, we the vendors of this sale deed have not to raise any dispute in the future that the possession of the land or the property has not been handed over to you....".
If the case made out in the plaint is to be believed, it would mean that almost 99% of the sale consideration i.e., Rs.1,73,62,000/ allegedly remained unpaid throughout. It is, however inconceivable that if the payments had remained unpaid, the plaintiffs would have remained completely silent for a period of over 5 and 1/2 years, without even issuing a legal notice for payment of the unpaid sale consideration, or instituting any proceeding for recovery of the amount, till the filing of the present suit in December 2014.
The definition of "sale" indicates that there must be a transfer of ownership from one person to another i.e., transfer of all rights and interest in the property, which was possessed by the transferor to the trransferee. The transferor cannot retain any part of the interest or right in the property, or else it would not be a sale. The definition further indicates that the transfer of ownership has to be made for a "price paid or promised or part paid and part promised". Price thus constitutes an essential ingredient of the transaction of sale." Also relied on citations in Vidhyadhar V. Manikrao In view of the law laid down by this court, even if the averments of the plaintiffs are taken to be true, that the entire sale SCCH - 11 42 HRC No.1082/1995 consideration had not in fact been paid, it could not be a ground for cancellation of the sale deed. The plaintiffs may have other remedies in law for recovery of the balance consideration, but could not be granted the relief of cancellation of the registered sale deed.
The conduct of the LRs in not taking recourse to legal action for over a period of 25 years from the execution of the sale deed in 1993, for payment of the balance sale consideration, also reflects that the institution of the present suit is an after - thought.
34. In the present case first respondent examined a witness as RW.2, who claiming that he and his wife Smt.Basavannamma alias Drakshayini Katagi are the absolute owners of the petition schedule property. RW.2 is none other than attested witness to the sale deed executed by Smt.Basavanamma in favour of petitioner. RW.2 in his evidence in para 8 RW.2 admitted that, he was present at the time of writing of Ex.P.1 and it was agreed earlier that the property would be sold for Rs.8,00,000/. However the petitioner and Sangappa Itagi did not pay the said amount. Hence Late Smt.Basavanamma did not go to the Sub registrar's Office to complete the sale transaction. He signed the sale deed under the impression that, petitioner and another SCCH - 11 43 HRC No.1082/1995 would pay consideration amount in the SubRegistrar's office. However no consideration amount was paid to Late Smt.Basavanamma.
35. During his cross examination, RW.2 identified the thumb impression (Ex.P.62 (b) to (k) of Smt.Basavanamma. Admitted sale negotiations held at Bagalkot. Identified the signatures of all attested witnesses. RW.2 deposed that, there is dispute regarding the consideration amount hence it was pending. Admitted that, "ಬಸವಣಣಣಮಮನವರರ ಈ ಸಸತತನ ಬಗಣಗ ಒಒದರ ಕಕಯ ಪತಕವನರನ ಮಮಡರರತಮತರಣ. ಈ ಕಕಯಪತಕವವ ಎಸಸ.ಬ.ಇಟಗಯವರ ಹಣಸರನಲಲ ಹಮಗಗ ಲಲಲಮವತ ಪ ಮಹಲಣ ಎಒಬರವವರ ಹಣಸರನಲಲರರತತದಣ. ನಮನಯಮಲಯದ ಮರಒದಣ ನ.ಪ62 ಅನರನ ಸಮಕಕಗಣ ತಣಗಲರಸಲಮಗ ಅದರ ಪಕಕಮರ ಕಕಯಪತಕದಲಲ ಇಬಬರ ಹಣಸರನಗನ ನಮಗದಸರರತಮತರಣ. ಈ ಕಕಯಪತಕ ನಪ62 ರಲಲ ಮಮರಮಟಗಮರಮಗ ಶಕಲಮತ ಬಸವಣಣಣಮಮನವರನರನ ತಣಗಲರಸಲಮಗದಣ ಮತರತ ಎಸಸ.ಬ.ಇಟಗ ಹಮಗಗ ಶಕಲಮತ ಲಲಲಮವತ ಪ ಮಹಲಣಯವರರ ಖರಲದದಮರರ ಎಒದರ ನಮಗದಸರರತಮತರಣ. ಈ ಕಕಯಪತಕವನರನ ಮಮಸಗರರ ಬಮನಒಕಸ ಹತತರ ಲಮಡಡನಲಲ ಮಮಡರರತಮತರಣ. ಕಕಯಪತಕವನರನ ಮಮಡಸದದರರ ಎಒಬರದರ ನನಗಣ ಗಣಗತತರರವವದಲಲ. ನಮನರ ಈ ಕಕಯಪತಕಕಣಕ ಸಒಬಒಧಸದ ಒಒದರ ದನ ಮದಲಣಲ ಲಮಡಡಗಣ ಕರಣಸಕಣಗಒಡದದರರ. ನಮನರ ಮತರತ ಚನನಮಲಲಪಪ ಶರಣಪಪ ಇವರರ (ಪರಪಪ ಕಳಳಗರಡಡರವರ ಸಹಣಗಲದರರರ) ಅಲಲಗಣ ಹಣಗಲಗದಣದವವ. ಈ ಸಸತತನ ವಚಮರವಮಗ ಒಒದರ ವಮರ ಮದಲಣಲ ಬಮಗಲಕಣಗಲಟಣಯಲಲ ಮಮತರಕತಣಯಮಗತರತ. ನಮನರ ಶರಣಪಪ ಸಒಗಪಪ, ಮಹಲಣ ವಕಲಲರರ ಇದಣದವವ. ಬಣಒಗಳಗರನಲಲರರವ ಆಸತಯನರನ ಕಣಗಟಟರಣ ಬಣಒಗಳಗರನಲಲರರವ ಎಲಮಲ ತಕರಮರರ ಮತರತ ಕಣಲಸರಗಳನರನ ನಣಗಲಡಕಣಗಒಡರ ಹಣಗಲಗರತಣತಲನಣಒದರ ಹಣಲಳದರರ. ಶರಣಪಪ ಸಒಗಪಪ ನಮನರ SCCH - 11 44 HRC No.1082/1995 ಹಮಗಗ ಮಹಲಣ ವಕಲಲರರ ಹಣಲಳದರರ. ಈ ದಮವಮ ಸಸತತಗಣ ನನನ ಪಕಕಮರ ಈ ಸಸತತನರನ ಕಕಯ ಮಮಡಕಣಗಡಲರ ರಗ.8.00 ಲಕಕಗಳಗಣ ಬಸವಣಣಣಮಮನವರ ಸಮರಮಖದಲಲ ಆಗತರತ. ಸದರ ನನನ ಮತರತ ಮಹಲಣ ವಕಲಲರರ ಮತರತ ಎಸಸ.ಬ. ಇಟಗಯವರ ಮದಣನ ಕಕಯದ ಮಬಲಗರ ಬಗಣಗ ಮಮತಕ ತಕರಮರರ ಇತರತ ಅಷಣಟಲ." Hence, by perusal of the evidence of RW.2 reveals that sale deed was executed but there is dispute regarding consideration amount. RW.2 admitted about the negotiations of Sale, admitted that they came to Bengaluru for registration of Sale Deed and also admitted that Sale Negotiations held in presence of Smt.Basavannamma. Hence, the contention of the 1st respondent that Smt.Basavannamma was not in need of money is not believable. In the present case, sale deed executed on 24.12.1993 and registered in the 1997. petitioner produced Ex.P.62 register sale deed which get its presumptive value and till today the LRs of Smt. Basavanammma not challenged the sale deed. It is further contention of the 1st respondent that the petitioner purchase the property when litigation pending between Smt.Sulochana and Smt.Basavannamma.
36. Respondent No.1 relied on the Citation. SC 2010 (13) SCC 128 between Har Narain Vs. Mam Chand.
SCCH - 11 45 HRC No.1082/1995 "Facts and circumstances giving rise to these appeals are that the defendant/respondent No.1 - Mam Chand (since deceased through Lrs.) (hereinafter called the respondent) was the owner of land admeasuring 22 Kanals situate within the revenue estate of village Asraka Majra, District Riwari, Harayana. The said respondent had mortgaged the entire land in favour of the predecessorininterest of the appellant, namely, Har Narain (since deceased and now represented through his Lrs) for Rs.7,000/. The appellant was also put in possession of the said land. The respondent No.1 entered into an agreement for Sale of 8 Kanals of the said property with the appellant for Rs.7,500/ and he received Rs.200/ as earnest money in cash while a sum of Rs.7,000/ to be adjusted as mortgage amount. However, the said respondent No.1 executed the sale deed on 02.08.1971 in favour of respondent No.2 to 6.
Being aggrieved, the appellant filed Suit No.172 of 1971, for specific performance against the respondent No.1 for executing the sale deed of the land in question on 10.08.1971 and the trial court restrained him from alienating the suit property by any means. However, the sale deed executed in favour of the said respondents was registered on 1971. The trial court dismissed the suit vide judgment and decree dated 04.09.1973 on various grounds, inter alia, that sale deed deemed to have come into force on 2.8.1971, as the registration thereof dated 9.9.1971, as the registration thereof dated 3.9.1971 would relate back to the date of execution which had been prior to institution of the suit and thus, the doctrine of lispendens would not apply. The said respondents 2 to 6 were bonafide purchasers for consideration without notice. The appellant filed first Appeal No.508 of 1973..........
The basic questions arise as to whether in the fact stuation of this case, the sale deed executed by the respondent No.1 in favour of respondent Nos.2 to 6 could be subject to the doctrine of lis pendes and in case the appellant had been in possession of the suit land being mortagagee since 1970, the respondent Nos.2 to 6 can be held to be vendees without notice of an agreement to sell in favour of the appellant by the respondent No.1.
SCCH - 11 46 HRC No.1082/1995 All the courts below have proceeded on the presumption that as the registration of a document relates back to the date of execution and in the instant case though the registration was subsequent to institution of the suit, it would relate back to the execution of the deed and the doctrine of lis pendens would not apply.
Section 54 of the Act, 1882, mandatorily requires that the sale of any immovable property of the value of hundred rupees and upward can be made only by a registered instrument. Section 47 of the Act, 1908, provides that registration of the document shall relate back to the date of the execution of the document. Thus, the aforesaid two provisions make it crystal clear that sale deed in question requires registration. Even if registration had been done subsequent to the filing of suit, it related back to the date of execution of the sale deed, which was prior to institution of the suit. A similar issue though in a case of right of preemption was considered by the constitution Bench of this Court. The court came to the conclusion that as the mere execution of the sale deed could not make the same effective and registration thereof was necessary, it was of no consequence unless the registration was made. Thus, inspite of the fact that the Act, 1908, could relate back to the date of execution in view of provisions of Section 47 of the Act, 1908, the sale could not be given effect of prior to registration. However, as the sale was not complete until the registration of instrument of sale is complete, it was not completed prior to the date of its registration. The court held:
Section 47 of the Registration Act does not, however, say when sale would be deemed to be complete. It only permits a document when registered, to operate from a certain date which may be earlier than the date when it was registered. The object of this section is to decide which of two or more registered instruments in respect of the same property is to have effect. The section applies to a document only after it has been registered. It has nothing to do with the completion of a sale when the instrument is one of sale. A sale which is admittedly not completed until the registration of the instrument of sale is completed, cannot be said to have been completed earlier because SCCH - 11 47 HRC No.1082/1995 by virtue of section 47 the instrument by which it is effected, after it has been registered, commences to operate from an earlier date. Therefore, we do not think that the sale in this case can be said, in view of Section 47 to have been completed on January 31, 1946.
This view has subsequently been followed and approved by this Court as is evidence from the judgments in Hiralal Agrawal Etc. V. Rampadarath Singh and Ors. Etc. MANU/SC/0375/1968: AIR 1969 SC 244; S.K.Mohammead Rafiq (Dead) by Lrs. v. Khalilul Rehmad and Anr. Etc. MANU/SC/0530/1972:
AIR 1972 SC 2162; Thakur Kishan Singh (Dead) v. Arvind Kumar MANU/SC/0015/1995: AIR 1995 SC 73; and Chandrika Singh (Dead) by Lrs, v. Arvind kumar singh (dead) by Lrs. And Ors. MANU/SC/8152/2006:
AIR 2006 SC 2199.
In view of the above, we are of the considered opinion that inspite of the fact that the registration of the sale deed would relate back to the date of execution, the sale cannot be termed as complete until its registration and it becomes effective only once it stands registered. Thus, the fiction created by Section 47 of the Act, 1908, does not come into play before the actual registration of the document takes place.
So far as the present case is concerned, it is apparent that the appellant who is a subsequent purchaser of the same property, has purchased in good faith but the principle of lis pendens will certainly be applicable to the present case notwithstanding the fact that under Section 19(b) of the specific Relief Act his right could be protected.
In view of the above, it is evident that doctrine of lis pendens would apply in the present case as the registration of the sale deed was subsequent to filing of the suit and subsequent purchasers i.e., respondent Nos.2 to 6 cannot claim benefit of the provisions of Section 19(b) of the Act, 1963.
This court came to the conclusion that in view of Section 19(b) of the Act, 1963 and definition of "notice" contained under Section 3 of the Act, 1882, it could not be held that the subsequent purchasers were bonafide purchasers in good faith for value without notice of the original contract and they were required to make SCCH - 11 48 HRC No.1082/1995 inquiry as to the nature of the possession or title or further interest, if any, of the other party over the suit property at the time when they entered into sale transaction, notwithstanding, that they were already aware that the other party was in possession of the suit property as the tenant. Thus, what is material is the inquiry at the time when susbsequent sale transaction was entered into.
The instant case is squarely covered by the aforesaid judgment, so far as this issue is concerned. The subsequent purchaser has to be aware before he purchases the suit property. Thus, we are of the considered opinion that respondent Nos.2 to 6 could not be held to be bonafide purchasers for value paid in good faith without notice of the original contract and the sale in their favour was subject to the doctrine of lis pendens. Legal maxim, pendente lite, nihil innovetur; provides that as to the rights of the parties to the litigation, "the conveyance is treated as if it never had any existence; and it does not vary them."
In view of the above, we reach the inescapable conclusion that the sale executed by respondent No.1 in favour of respondent Nos.2 to 6 on 2.8.1971 could not be termed as a complete sale until the document got registered on 3.9.1971. In view of the provisions of Section 47 of the Act, 1908 the effect of registration would be that registration would relate back to the date of execution but it does not mean that sale would be complete in favour of respondent No.2 to 6 prior to 3.9.1971 i.e., the date of registration of the sale deed. In view of the above, as sale stood completed during the pendency of the suit, doctrine of lis pendens is applicable in the facts and circumstances of the case. The courts below failed to appreciate that the fiction created by Section 47 of the Act 1908, itself is a consequence of registration of the sale deed. More so, as the appellant had been in possession of the suit land being a mortgagee since 1970 and this fact had also been mentioned by the respondent No.1."
Del HC 2019 (173) DRJ 302 between Prem Prakash Gupta Vs. Sanjay Agarwal.
SCCH - 11 49 HRC No.1082/1995 "That the Gift Deed was not registered, as both, the defendant and the plaintiff, due to financial difficulties were unable to pay the stamp duty thereon; however as soon as the defendant was able to make some arrangement, he deposited the appropriate stamp duty along with penalty in the office of Collector of Stamps on 4th May, 2017.
The senior counsel for the plaintiff has further contended that Section 25 of the Registration Act permits the document to be presented for registration beyond four months from the date of execution prescribed in Section 23, only within maximum further period of four months i.e., within eight months from the date of execution and which time has long past expired."
Raj Kumar Dey Vs. Tarapada Dey (1987) 4 SCC 398, holding that the cumulative effect of Sections 23 & 25 of the Registration Act read together is that total period of eight months is available for registration.
(VI) Subhash Chander Ahuja Vs. Ashok Kumar Ahuja 116 (2205) DLT 125, holding that the Registration Act prescribes that a document must be presented for registration within four months of its execution and thereafter may be done within a further period of four months but with special leave;
My research shows that in Ram Saran Lall Vs. Mst. Domini Kuer AIR 1961 SC 1747, it was held that Section 47 of the Registration Act does not say when a sale would be deemed to be complete; it only permits a document, when registered, to operate from a certain date which may be earlier than the date when it was registered. It was further held, that Section 47 applies to a document only after it has been registered and has nothing to do with the completion of the sale, when the instrument is one of sale; a sale which is admittedly not completed until the registration of the instrument of sale is completed, cannot be said to have been completed earlier because by virtue of Section 47, the instrument by which it is effected, after it has been registered, commences to operate from an earlier date. The same view was reiterated in Hiralal Agrawal Vs. Rampadarath Singh AIR 1969 SC 244 and in Har Naraian Vs. Mam Chand (2010) 13 SCC 128.
SCCH - 11 50 HRC No.1082/1995
(iii) that under Section 47 of the Registration Act, a registered document operates from the date of its execution and not from the date of its registration;
(iv) that registration of a document relates back to the date of its execution, between the parties thereto, but as regards third parties, it is effective from the date of registration;
(v) that where an instrument, which purports to transfer title to property is required to be registered, the title does not pass until registration has been effected; no new title is created by registration - it only affirms a title has been created by the deed;
Also relied on citations reported in Raj Kumar Dey Vs. Tarapada Dey (1987) 4 SCC 398, Allahabad HC - Second Appeal No.2/1990 between Prem Narain Vs. Mahabir Jain.
Section 54 of the Transfer of Property Act provides that sale of tangible immovable property of the value of rupees 100 and upwards, which the house with which we are concerned is, can be made only by a registered instrument. Section 3 of this Act defines "registered" as registered under the law for the time being in force regulating the registration of documents. This, in the present case, means the Registration Act of 1908. It is not in dispute that the registration under the Registration Act is not complete till the document to be registered has been, copied out in the records of the Registration Office as provided in S.61 of that Act. It was therefore contended in the High Court that when a sale had to be made by a registered instrument it became complete only on the instrument of sale being copied in the books of the Registration office. The High Court accepted this view and held that the sale in the present case, therefore, became complete on the completion of the registration of the instrument of sale which was done on February 9, 1946 when the instrument was copied out in the books of the Registration Office. In this view of the matter, the High Court came to the conclusion that the appellants were not entitled to enforce their right of presumption because SCCH - 11 51 HRC No.1082/1995 they had not made the preliminary demand after the completion of the sale as the law required them to do, but before, that is, on February 2, 1946........
Section 61(2) of the Registration Act lays down that the registration of a document shall be deemed to be complete after the endorsements and certificate referred to and mentioned in Sections 59 and 60 have been copied into the margin of the Register book. Under Section 54 of the Transfer of Property Act, the transfer by sale of immovable property of a value of Rs.100/ and more can be made only by registered document. On reading section 54 of the Transfer of Property Act along with Section 61 of the Registration Act, it can be said that the sale is complete after the compliance of Sections 59 and 60 and 61 has been made and not when the document has been executed or presented for registration. Title to the property may pass when the transaction is complete, that is, after the necessary endorsements have been made in the Register Book.
A contrary view has, however, been expressed in Nabir Ganai V. Mohammad Ismail Ganai, (MANU/JK/0043/1960: AIR 1960 J & K 112). Therein it was held that as between parties, registered document takes effect from, the date of its execution but as between third parties it takes effect from the date of registration.
It is to be borne in mind that under section 54 of the Transfer of Property Act, transfer of tangible immovable property can only be made by registered instrument. Without registration, there is no transfer of ownership of the property. Therefore, it is clear that the act of registration is not a mere instance of collecting revenue by the State as Registration Fee and proving authenticity to the document. It is by act of registration, that the title of the property passes to the transferor from the date of execution of the deed of transfer." SC - AIR 2009 (75) 301 & AIR 2009 SC 2122 between Kaliaperumal Vs. Rajagopal, wherein it is held :
SCCH - 11 52 HRC No.1082/1995 Sale is defined as being a transfer of ownership for a price. In a sale there is an absolute transfer of all rights in the properties sold. No rights are left in the transferor. The price is fixed by the contract antecedent to the conveyance. Price is the essence of a contract of sale. There is only one mode of transfer by sale in regard to immovalbe property of the value of Rs.100/ or more and that is by a registered instrument. It is now well settled that payment of entire price is not a condition precedent for completion of the sale by passing of title as Section 54 of Transfer of Property Act, 1882 9(Act for short) defines 'sale' as a transfer of ownership in exchange for a price paid or promised or part paid and part promised. If the intention of parties was that title should pass on execution and registration, title would pass to the purchaser even if the sale price or part thereof is not paid. In the event of nonpayment of price (or balance price as the case may be) thereafter, the remedy of the vendor is only to sue for the balance price. He cannot avoid the sale. He is, however, entitled to a charge upon the property for the unpaid part of the sale price where the ownership of the property has passed to the buyer before payment of the entire price, under Section 55(4)(b) of the Act. Normally, ownership and title to the property will pass to the purchaser on registration of the sale deed with effect from the date of execution of the sale deed. But this is not an invariable rule, as the true test of passing of property is the intention of parties. Though registration is prima facie proof of an intention to transfer the property, it is not proof of operative transfer if payment of consideration (price) is a condition precedent for passing of the property. The answer to the question whether the parties intended that transfer of the ownership should be merely by execution and registration of the deed or whether they intended the transfer of the property to take place, only after receipt of the entire consideration, would depend on the intention of the parties. Such intention is primarily to be gathered and determined from the recitals of the sale deed. When the recitals are insufficient or ambiguous the surrounding circumstances and conduct of parties can be looked into for ascertaining the intention, subject to the limitations placed by Section 92 of Evidence Act.
SCCH - 11 53 HRC No.1082/1995 In this case, the execution of the sale deed on June 26, 1983 is not in dispute. The said instrument was presented for registration on October 21, 1983 and registered on October 26, 1983, as the first respondent/vendor appeared before the subregistrar and admitted that the vendors had executed the documents, but refused to make an endorsement to that effect on the deed as the vendors had not received the balance consideration of Rs.40,000/. Applying the above mentioned principles to the facts of this case, we find that the parties intended that ownership of the property would transferred to the appellant only after receipt of the entire consideration by the vendors, as a condition precedent. The operative portion of the sale deed clearly shows that the vendors have agreed to receive Rs.40,000/ in the presence of the SubRegistrar on the date of the registration of the sale deed and that in the consideration of payment to be so made, the property was being conveyed to the purchaser.
Therefore, on the facts and in the circumstances of the case, we are of the considered view that the parties really intended that title of ownership of the suit properties would pass to the purchaser, only after payment of full consideration by the purchaser to the vendor as a condition precedent. Parties did not intend that there should be transfer of ownership merely on execution and registration of the deed. The trial court and first appellate court having misinterpreted the legal position, the High Court rightly set aside the decree passed in favour of the appellant and dismissed the suit. No ground is made out by the appellant to interfere with the decision of the High Court. Therefore, the appeal, which is devoid of merits, deserves dismissal.
37. Del HC - RFA No.699/2017 (MANU/DE/6104/2017) between Asrar Vs. Om Prakash Mawar, it is held ........These documents in favour of defendants No.6 and 7 are unregistered. GPA, agreement to sell and purchase are prepared on the stamp paper of Rs.50/. The transfer of immovable property through such type of documents was prohibited by Hon'ble Supreme Court vide order dated 11.10.2011 in case SCCH - 11 54 HRC No.1082/1995 suraj lamp and industries pvt. Ltd vs. State of Haryana 2011 Law Suit (SC) 1107. Thus, defendants no.6 and 7 cannot be treated as legal owners of the suit property on the basis of these defective and invalid documents.
In this case, High Court even raised doubt about the existence and validity of the agreement itself when the payment was made in cash and not by cheque. In another Yeshvir Singh Tomar vs. Dr.O.P.Kohli 222 (2015) DLT 285, Delhi High Court held that where agreement to sell is in the nature of part performance then it cannot create rights unless the same is registered and stamped at 90% of the value of the sale deed. Thus on the basis of such unregistered and unstamped agreement to sell no rights can be claimed. The learned counsel for 1st respondent also relied on citation reported in Firm Srinivas Ram Kumar V. Mahabir Prasad and Ors: MANU/SC/0021/1951 : (1951) 2SCR277, OM Prakash and Ors: V. Ram Kumar and Ors:
MANU/SC/0101/1991: AIR 1991 SC 409.
38. But by perusal of the evidence of RW.2 reveals that, the sale deed was prepared in his presence, but it is contention of RW.2 that petitioner and Sri.Sangappa not paid consideration amount of Rs.8,00,000/ hence Smt.Basavanamma not did not go to the subregister office for completion of sale deed. But during her life time Smt.Basavanamma not denied the execution of sale deed executed by her in favour of petitioner and Sri.Sangappa Ittagi. But during cross examination RW.2 admitted that, "ಬಸವಣಣಣಮಮನವರರ ಮಮತರಮದ ನಒತರ ಬಮಗಲಕಣಗಲಟಣಯಲಲ ದಮವಣ SCCH - 11 55 HRC No.1082/1995 ನಡಣಯರತತದರದ ದಮವಣ ಇತನರರವಮದ ನಒತರ ಬಣಒಗಳಗರನಲಲ ನಡಣಯರತತರರವ ಕಣಲಸನ ಬಗಣಗ ಕಕಮ ತಣಗಣದರಕಣಗಳಳಲಲಲ". Sale deed contains the signature of petitioner, Sri.Sangappa Ittagi, and thumb impression of Smt.Basavanemma. The attestors also put their signature to the said sale deed, RW.2 is none other than the one of attesting witness to the said sale deed and he admits his signature Ex.P.62(a). And moreover in the judgment in O.S.No.4746/1996 While answering to Issue No.2 Hon'ble City Civil Court held that "As already held the plaintiff became the absolute owner of the suit schedule property after the death of Parappa Kalligud. The deceased Smt.Basavannavva executed a sale deed date 24.12.1993 in favour of defendant no.1 and 2. The said sale deed is important. Once the execution of sale deed is proved, then, it has to be registered. The registration of document is necessary for admitting it as evidence. Smt.Basavannavva has executed the sale deed on 24.12.1993 she died on 23.01.1995 The registration was completed on 03.07.1996 after the death of Smt.Basavannavva. Merely the sale deed was registered after the death of Smt.Basavannavva, it can not be said that the sale deed is not valid."
SCCH - 11 56 HRC No.1082/1995
39. Now though RW.2 deposed that sale deed is not
completed, but till today they have not challenged the sale deed executed by Smt.Basavannama in favor of petitioner, not challenged the transfer of khatha into the name of petitioner. The sale deed is in writing and signed by the concerned parties and recitals of sale deed shows that the passing of consideration amount. After execution of sale deed, during her life time Smt Basvanamma or after her death her LRs who are the parties to the O.S.No.6752/1993 , MFA No.3994/2001 Well known about the execution of sale deed had not raised question regarding the consideration amount, during her life time Smt.Basvanamma not taken any steps to cancellation of sale deed nor demanded the balance consideration amount on the ground that, no consideration was passed under Ex.P.1 Sale deed. When consideration amount not paid legal action to be taken by vendor, proceeding of this case and the execution of sale deed is in knowledge of witness particularly RW.2, so far, 27 years not initiated any proceedings against the petitioner on consideration not paid. The present petition is between petitioner and first respondent, Firstly first respondent not the party to the sale deed, he has no locus standi to question the legality of sale deed. As per section 54 T.P.Act - Sale Consideration Recital in SCCH - 11 57 HRC No.1082/1995 registered sale deed showing payment of consideration - cannot be doubted unless it is proved to be incorrect by examining some official from the office of Sub Registrar (Mehar Singh (Died through Lrs V/s Baltej Singh and Anr) 2006 (1) Civil Court Cases 25 ( P & H ). Hence by perusal of sale deed reveals that, the consideration was passed at the time of execution of sale deed. Till today the legal heirs of Smt.Basavannamma not challenged the sale deed executed between Smt.Basavannamma and petitioner. Nothing is on record to show that Smt.Basavannamma or her legal heirs have taken any steps in this regard for a period of 25 years, Lrs of Smt.Basavannamma also not challenged the entry of Khatha in the name of petitioner and Sri.Sangappa Ittagi. During her life time Smt.Basavannama not denied execution of sale deed in favor of petitioner. On perusal of sale deed it was noted that the Smt.Basavannamma had infact accepted and acknowledged the payment of full consideration from petitioner. The transaction having been executed through a registered document was in the public domin and in the knowledge of Smt.Basavannamma. Hence the contention taken by first petitioner that, is consideration was passed is not believable.
SCCH - 11 58 HRC No.1082/1995
40. Hence the tenant has no right to question the title of the transferee unless from the deed of transfer, a contrary intention appears. First respondent admits Kalligudda to be his landlord earlier and disputes the land lordship of the petitioner by questioning the sale deed. He has no right of whatsoever nature to question it, he is a third party to the transactions between the petitioner and and her vendor. For a moment if it is believed that, the consideration amount not paid hence document not registered. Execution of document admitted by RW.2, if full consideration not paid. The course open to the vendor to take steps for recovery of unpaid purchase money. Section 55 - Passing of consideration is not a condition precedent for conveying title by way of sale Title passes immediately to vendee on registration of sale deed - if stipulated consideration is not paid, vendor has to take steps for recovery of unpaid purchase money. (Kavitha Houda Rep by her G.P.A K.Prakash V/s Nookota.
41. According to section 3 of Transfer of Property Act, Term "attested" in relation to an instrument, means and shall be deemed always to have meant attested by two or more whiteness, each of whom has seen the executant sign or affix his SCCH - 11 59 HRC No.1082/1995 mark to the instrument or has seen some other person sign the instrument in the present and by the directions of the executant. In the present case, RW.2 who present at the time of execution of sale deed identified the thumb impression of Smt.Basvanamma, identified his signature in Ex.P.62. During the life time of Smt.Basavanamma not the Basavanamma nor the RW.2 challenged the sale deed claiming that, the consideration amount not passed.
42. RW.2 who puts his signature as attestor, who identified the thumb impression of Smt.Basavanamma. In law term 'execution' has not been defined specifically in normal parlance, the execution of a document means signing the same (Bhavanji V/s Deviji (ILR 1894) 19 Bom 635) that execution means signing, sealing and delivery of a document, completion of deed, execution of document means that the execution must have signed or put his thumb impression, only after the contents the document have been fully stated and read. Ordinarily no one is expected to sign a document without knowing its contents but if it is pleaded that the party who signed document did know the contents of document then, it may in certain circumstances necessary for the party, to place material before the court, to satisfy it, that no consideration was passed and party who SCCH - 11 60 HRC No.1082/1995 signed the document had the no knowledge of its contents. Hence I am not disputed the dictum of Hon'ble Courts. But nothing is placed before this court to believe the evidence of RW.2 and RW.1. In the present case the petitioner pleaded and produced document to show that how she derived the title and interest over the suit schedule property. Hence the facts of present case is different, hence the present citations relied by first respondent are not applicable to the case on hand.
43. Further it is the contention of the petitioner that, after purchasing the suit schedule property they intimated the same to the first respondent in writing that they have purchased the property. In support of the same petitioner produced Ex.P.3 Attorment notice. The learned counsel for petitioner relied on the citation reported in G.Kaluram Vs. K.G.Shivashankar reported in 2008 (4) AIR Kar R 101 (Para Nos.11 & 13) held:
"Admittedly, the petitioner is a tenant in respect of the petition schedule premises. There is no dispute with regard to the rate of rent and that he was a tenant under late Govindaraj Mudaliar, father of the respondent. The claim of the respondent is that late Govindaraj Mudaliar executed a registered will in favour of the respondent. On the basis of the registered Will, Khatha is transferred in the name of the respondent. It is his case that since the Will is registered, he need not obtain probate of the Will and can maintain the eviction petition against him. Moreover, even in the absence of the said Will, in the absence of the petitioner, the land lordship of the original will and the respondent as that SCCH - 11 61 HRC No.1082/1995 of a father and son, the respondent has every right to maintain eviction petition against the petitioner as a co owner of the petition schedule property. Therefore, the contention of the petitioner that tenancy has not been attorned by him in favour of the respondent cannot be accepted, when he admits that he was a tenant under the original landlord, Govindaraj Muraliar, propounder of the Will bequeathing the suit schedule property in favour of the son respondent herein and the question of attornment or production of the lease deed by the respondent to prove the only relationship does not arise."
A notice of attornment is a notice that the new owner may give to party, providing notice that the property has been sold to them. It will direct the tenant to pay all future rent to the new landlord. 'To attorn' means to acknowledge the relationship of a tenant with a new landlord. Ex.P.3 is the letter written by RW.2 to the first respondent. Stating that, "ಶಕಲಯರತ ಹಣಚಸ.ಹಣಚಸ.ಶದಲಒಗಪಪನವರಗಣ ಬಮಗಲಕಣಗಲಟಣಯಒದ ಶರಣಪಪ ಗರ.ಕಟಗ ತಳಸರವದಣಲನಒದರಣ ನಮಮ ಮಮಲಕ ಮನಣ ನಒ.148 ಮಠದಹಳಳಯಲಲ ಇದದಒತ ಮನಣಯನರನ ತಮ. 24.12.1993 ರಒದರ ನಮಮ ಅತತಅವರರ ದ. ಬಸವಣಣಣವಸ ಕಗಒ.ಪರಪಪ ಕಳಳಗರಡಡ ಇವರರ ಶಕಲಯರತ ಸಒಗಪಪ ಬ. ಇಟಗ ಹಮಗಗ ಶಕಲಮತ ಲಲಲಮವತ ಪ ಮಹಲಣ ಇವರಗಣ ಮಮರಮಟ ಮಮಡದಮದರಣ ಕಮರಣ ನಲವವ ಮರಒದಣ ನಮಗಣ ಕಣಗಡರತತದದಒತಹ compensation ಅನರನ ಇನರನ ಮರಒದಣ ಮಲಲಣ ಕಮಣಸದ ಖರಲದದಮರರಗಣ ಕಣಗಡಬಣಲಕರ". It shows that the copurchased of suit schedule property has issued attornment notice to first respondent. But it is the contention of RW.2 that, the katage has obtained his signature on a blank paper and miss used it, but the said document written in the year 1994 , till today RW.2 not SCCH - 11 62 HRC No.1082/1995 taken any steps against the Sri.S.G.Katagi for misusing his signature, and not taken any steps to get back said paper. Except deposing that Sri.Katagi obtained his siganature on blank paper and misused it, nothing is produced before this court to believe the same. Hence it shows that, the petitioners issued attornment notice to the first respondent.
44. Petitioner also produced the Khatha Extract and Encumbrance Certificate as per Ex.P.66 and Ex.P.64, which are public document issued by public office and they have got initial presumption. The first respondent except stating that the sale deed and Khatha extracts are created by the petitioner, there are no contrary documents placed by him before this court. The first respondent in the argument submitted that the petitioner not sent attorn notice. Petitioner produced Ex.P.3 the notice issued by copurchaser that, is Sangappa Itagi.
45. The first respondent contended that, he was paying monthly rent of Rs.700/ to late Sri.Parappa Kalligudda, the petitioner in her petition mentioned that, first respondent paying rent of Rs.750/ is not correct and he never paid the rent to petitioner. This shows that the petitioner is not the landlord of the suit property and for this reason only she was not aware as SCCH - 11 63 HRC No.1082/1995 what was the rate of rents. Therefore, the petitioner has not proved the relationship and hence the suit is liable to be dismissed. But this contention of the first respondent is not acceptable. Because, not mentioning of the rate of rents it is only the determination and termination of tenancy which is required for eviction.
46. First respondent denied the relationship of landlord and tenant, it is true that in an eviction proceeding initiated under Karnataka Rent Act, Section 43 states that if a contention is raised by the opposite party denying the existence of landlord and tenant, the court can accept a document of lease, or in the absence of a lease deed, a receipt of acknowledgment of payment of rent as a prima facie piece of evidence of landlord and tenant relationship and proceed further. If the court is able to come to a conclusion that the jural relationship does not exist, it has to stop all further proceedings and direct the parties to approach a competent civil court for declaration of their rights. But already in above discussion, this court held that no grounds are made out to refer the matter to the Civil Court. It is undisputed fact that there is no lease deed and that rent receipts. First respondent also not produced any lease deed executed between him and earlier owner. It shows that, there is no lease deed in SCCH - 11 64 HRC No.1082/1995 writing between earlier owner and first respondent. In the present case petitioner purchased the property from erstwhile owner and intimated to the first respondent about the purchase of the property by issuing attorment notice. " To attorn means to acknowledge the relationship of a tenant with a new landlord". A notice of attorn is a notice that the new owner may give to you, providing notice that the property has been sold to them. It will direct tenant to pay all future rent to the new landlord."
(MANU/SC/0621/1997) AIR 1997 SC 2437 Held "It is well settled that, a transfered of the lands right steps into the shoes of the landlord with all the rights and the liability of the transferor landlord in respect of the subsisting tenancy. The section does not require the transfer of the right of the land lord 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 landlords rights. Since attornment by the tenant is not required, a notice under section 106 in terms of the old terms of lease by the transferor landlord would be proper and so also the suit for ejectment." AIR 1997 Sc. , 1997 AIR SCW 2353: "Termination of tenancy Transfer of demised property Attornment by tenant not necessary though derived as it implies continuity of tenancy - notice under section 106 of Transfer of property Act in terms of old terms of lease by transferor land lord."
47. Learned counsel for petitioner relied on decision reported in Silvauddin Vs. Nagaraju reported in ILR 2004 Kar.
4782 (Para No.7): SCCH - 11 65 HRC No.1082/1995
"In view of transfer of ownership of the premises to the respondent by the previous lessor, the respondent/owner becomes the lessor and becomes entitled to receive rent in terms of the lease by operation of Section 109 of T.P.Act. It is relevant to state that in India no attornment of tenancy is necessary in law as Section 109 of the T.P.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. However, the section protects payment of rent by the tenant to the transferor without notice of the transfer. The tranfer of ownership of the premises to the respondent by the previous lessor has resulted in statutory attornment by the tenant in favour of the lessor's transferee i.e., the respondent herein and consequently jural relationship of landlord and tenant."
48. Under the terms of a verbal agreement, most states allow the landlord to make changes by giving written notification to the tenant. In the present case Admittedly there is no written rental agreement between petitioner and first respondent, as first respondent is tenant under erstwhile owner of the petitioner, petitioner purchased the property under the sale deed dated 24.12.1993. as per T.P.Act, it the procedure that after purchase of property attorn notice to be sent to tenant asking him to pay rents in the present case petitioner produced Ex.P.3 Attornment notice issue by copurchaser. The petitioner being a transferee possess all the rights of her transferor. Hence non production of lease deed or rent receipts cannot be made use of a ground for denying the jural relationship of landlord and tenant. It is an admitted fact that, the first respondent is the tenant SCCH - 11 66 HRC No.1082/1995 under erstwhile owner of the petitioner, purchaser steps into the shoes of earlier owner, petitioner intimated the purchase of suit schedule property to the first respondent for acquiring the suit property. First respondent having knowledge of all the proceedings between Smt.Sulochana and petitioner. First respondent is shown as second respondent in R.F.A.No.1448/2003 hence he cannot deny, the order passed by the Hon'ble City Civil Court, Hon'ble High Court of Karnataka and Hon'ble Supreme Court of India are also binding on first respondent also. Hence petitioner by valid oral and documentary evidence, proved the Jural relationship between petitioner and the first respondent. She also proved that there is a valid attornment notice. This court while discussing has come to the conclusion that there is jural relationship of land lady and tenant between the petitioner and first respondent. Hence in view of above discussion Point No.1 answered in the Affirmative.
49. POINT NO.2: It is the contention of petitioner that, the first respondent is a chronicle defaulter in the matter of payment of rents and as on date he is in arrears of rent to an extent of Rs.13,440/ for the period ending 31.05.1995. But as there is dispute between second respondent Smt.Sulochana and SCCH - 11 67 HRC No.1082/1995 petitioner regarding title of the suit property HRRP No.1561/1998 filed by first respondent before the Hon'ble High Court of Karnataka, which was disposed of directing the tenant to deposit the rents under section 19 of the Act and the successful party will receive it. Hence in view of the same petitioner can get release the amount as per law. Hence by perusal of oral and documentary evidence petitioner proved jural relationship of landlord and tenant between petitioner and first respondent.
50. It is the contention of petitioner that, petitioner requires the petition schedule premises for her bonafide use and occupation. During the year 1999, the husband of the petitioner, Sri.Padmanabh Mahle was designated by the Hon'ble Court of Karnataka as a Senior Advocate and thereafter the petitioner and her husband have shifted their residence to Bangalore and are living in Bangalore from the year 1999 onwards. Further stated that petitioner does not own an independent house are living in an apartment complex, in which there is no place of accommodation to have the office of her husband. That apart the son and daughter of the petitioner are both married and have children of their own. The daughter of the petitioner is living in Mysore and visits often along with her husband and two SCCH - 11 68 HRC No.1082/1995 daughters. The son of the petitioner is also practicing lawyer in Delhi and he visit Bangalore every year along with his wife and daughter during court vacations for a period of 4 to 6 weeks. Since there are no sufficient rooms to accommodate the family members and guests in the present apartment of the petitioner. Therefore, the petitioner is desirous of having her own independent house in Bangalore with provision for sufficient accommodation for her husband's office and rooms for guests. Hence, the petitioner requires the petition schedule premises for her bonafide use and occupation.
51. But is the contention of first respondent that, the petitioner is residing at No.209/1, Palace Corner Apartments, Sadashivanagar, Bengaluru which measures more than 4000 square feet and that the said property stood in the name of the petitioner and her husband and recently it has been gifted to their son. That the present house of the petitioner at Sadashivanaglar is more spacious than the schedule premises. Further the petitioner and her husband together have constructed Bungalow in a portion of land measuring 3 acres bearing Sy.No.6465 of Tadasinakoppa, Nelamangala, Bengaluru Rural District. Further the petitioner and her husband also owned spacious house at Malleshwaram, Bengaluru and very SCCH - 11 69 HRC No.1082/1995 recently the same has been sold. Petitioner is not in genuine need of the schedule premises. P.W.1 deposed that he suit property is required for her use.
51. Petitioner by valid oral and documentary evidence, proved the Jural relationship between petitioner and the first respondent. She also proved that there is a valid attornment notice. This court while discussing has come to the conclusion that there is jural relationship of land lady and tenant between the petitioner and first respondent. First respondent in the arguments also contended that, petitioner has not proved his bonafide requirement. Therefore, the suit is liable to be dismissed. PW.1 in her evidence deposed that, she requires the suit premises for her own and to her family members. Moreover, it is relevant to note that as per the decision reported in Ragvendra Kumar V/s Firm Prem Machinery and Co., (2000)1 SCC 679), the Landlord is the best judge of his own requirement for residential or business purpose and he has complete freedom in the matter. Therefore, the contention of first respondent that, the suit property is not requirement of use and occupation of the petitioner and the petitioner has not proved her requirement is not acceptable and sustainable under law.
SCCH - 11 70 HRC No.1082/1995 Hence the petitioner is entitled for relief claimed. Hence, Point No.2 answered in the Affirmative.
52. Before parting with the case, it is pertinent mention that this there is delay if disposing the matter, Learned counsel for petitioner submits that, to harass the petitioner the unnecessary several applications are filed by the first respondent. Even the first respondent not paid the cost imposed by this court and not complied the order of Hon'ble High court of Karnataka first respondent has not at all paid the said cost till this day. This shows that the first respondent do not have minimal respect towards the order Hon'ble High Court of Karnataka and order of this court. In fact, the first respondent had not paid single cost imposed by this court throughout the proceedings. They just made this court to go on passing order on one or other interim applications and awaiting order of revisions and transfer petitions.
53. Learned counsel for first respondent submits that, there is no delay caused by first respondent. It is surprise to note that, the petitioner filed present petition without producing any any single document. For example in injunction suit the plaintiffs produces at lease the property extracts, khatha extract, SCCH - 11 71 HRC No.1082/1995 tax paid receipts, but in the present case petitioner not produced any single document to prove her title. Hence first respondent filed I.A No.I to direct the petitioner to produce sale deed, the court its order directed the petitioner to produce the sale deed then petitioner produced copy of sale deed. Hence, there is no delay on the part of first respondent.
54. In support of his submission Learned counsel for petitioner relied on decisions reported in AIR 2020 Supreme Court 4070, L.Nageswara Rao and Aniruddha Bose, in M.F.A.No.1434 of 2020 in Misc. Application Dairy No.15272 OF 2020 IN Suo Moto Contempt Petition (Criminal) No.2 of 2019, D/ 03.09.2020.
Rashid Khan Pathan & in the matter of: In Re: Vijay Kurle & Ors., wherein it is held that: "Constitution of India, Arts.134, 137 - Recall of judgment - Application for - Maintainability - Earlier application of contemnors for recall of judgment dismissed as not maintainable with liberty to file review petition Subsequent application for recall of judgment is an abuse of process of Court -
Application dismissed with exemplary costs of Rs.25,000/."
55. In a country governed by the rule of law, finality of the judgment is absolutely imperative and great sancity is attached SCCH - 11 72 HRC No.1082/1995 to the finality of the judgment. Permitting the parties to reopen the concluded judgments of this Court by filing repeated interlocutory applications is clearly an abuse of the process of law and would have far reaching adverse impact on the administration of justice.
56. Repeated filing of applications which are not maintainable amounts to abuse of process of law O.Chinappa Reddy, J. In Advocate General, State of Bihar V.M.P.Khair Industries was of the opinion that abuse of process of courts amounts to criminal contempt. In the said case, the respondent was accused of filing repeated applications and obstructing the administration of justice which interfered with the due course of judicial proceedings.
57. Repeated filing of applications can also result in a direction that no further applications shall be received by the Registry of this court in respect of the litigation (see: Ila Vipin Pandya (2) v. Smita Ambalal Patel).
In Dnyandeo Sabaji Naik Vs. Pradnya Prakash Khadekar, D.Y.Chandrachud.J, speaking for a three Judge bench held that Courts are obligated to act firmly in dealing with abuse of SCCH - 11 73 HRC No.1082/1995 process, and impose exemplary costs when necessary. Chandrachud.J. held:
"This Court must view with disfavour any attempt by a litigant to abuse the process. The sanctity of the judicial process will be seriously eroded if such attempts are not dealt with firmly. A litigant who takes liberties with the truth or with the procedures of the Court should be left in no doubt about the consequences to follow. Others should not venture along the same path in the hope or on a misplaced expectation of judicial leniency. Exemplary costs are inevitable, and even necessary, in order to ensure that in litigation, as in the law which is practiced in our country, there is no premium on the truth.
"Courts across the legal system this Court not being an exception are choked with litigation. Frivolous and groundless filings constitute a serious menace to the administration of justice. They consume time and clog the infrastructure. Productive resources which should be deployed in the handling of genuine causes are dissipated in attending to cases filed only to benefit from delay, by prolonging dead issues and pursuing worthless causes. No litigant can have a vested interest in delay. Unfortunately, as the present case exemplifies, the process of dispensing justice is misused by the unscrupulous to the detriment of the legitimate. The present case is an illustration of how a simple issue has occupied the time of the courts and of how successive applications have been filed to prolong the inevitable. The person in whose favour the balance of justice lies has in the process been left in the lurch by repeated attempts to revive a stale issue. This tendency can be curbed only if courts across the system adopt an institutional approach which penalises such behaviour. Liberal access to justice does not mean access to chaos and indiscipline. A strong message must be conveyed that courts of justice will not be allowed to be disrupted by litigative strategies designed to profit from the delays of the law. Unless remedial action is taken by all courts here and now our society will breed a legal culture based on evasion instead of abidance. It is the duty of every court to firmly deal with such situations. The imposition of exemplary costs is a necessary instrument SCCH - 11 74 HRC No.1082/1995 which has to be deployed to weed out, as well as to prevent the filing of frivolous cases. It is only then that the courts can set apart time to resolve genuine causes and answer the concerns of those who are in need of justice. Imposition of real time costs is also necessary to ensure that access to courts is available to citizens with genuine grievances. Otherwise, the doors would be would be shut to legitimate causes simply by the weight of underserving cases which flood the system. Such a situation cannot be allowed to come to pass. Hence it is not merely a matter of discretion but a duty and obligation cast upon all courts to ensure that the legal system is not exploited by those who use the forms of the law to defeat or delay justice. We commend all courts to deal with frivolous filings in the same manner".
"The application for recall of an order by which an earlier application for recall of the judgment was dismissed is not maintainable. The only remedy open to the Appellant was to have filed a Review Petition as suggested by this Court in the order dated 04.05.2020. We are of the considered view that the application for recall of the order dated 04.05.2020 is an abuse of process of Court. Therefore, we are constrained to dismiss the Appeal with exemplary costs of Rs.25,000/ (Rupees Twenty Five Thousand only). If the Appellant continues to file such repetitive applications in this litigation which are not maintainable, he will be visited with deterrent actions referred above such as initiation of criminal contempt proceedings or a direction to the Registry that no further applications in this litigation will be received."
58. Admittedly in the present case application filed by the first respondent under section 70 of the Karnataka Rent Act which was dismissed by this court, first respondent preferred HRRP No.14 OF 2019 before the Hon'ble High Court of Karnataka and the petition is dismissed with costs of Rs.20,000/. But first respondent not complied the order of SCCH - 11 75 HRC No.1082/1995 Hon'ble High Court and till today not paid the cost and not also paid the cost imposed by this court. When we are taking shelter under law, it is the duty to obey the law and respect the order passed by the courts. As the first respondent not paid the cost, the petitioner is every liberty to recover the cost in accordance with law.
59. POINT NO.3: Petitioner by oral and documentary evidence proved that there is relationship of land lord and tenant between the petitioner and first respondent, and petitioner requires the suit schedule property for her use and occupation. Hence petitioner is entitled for the relief claimed. Hence, in view of above discussion Point No.3 answered in Affirmative.
60. POINT No.4: In view of above I proceed to pass the following:
ORDER The petition filed by the petitioner U/s.27 (2) (j) & (o) of Karnataka Rent Act is hereby allowed with cost.
First respondent is hereby directed to vacate and hand over the vacant possession of suit schedule property within two months from today, which otherwise, the petitioner is at liberty to SCCH - 11 76 HRC No.1082/1995 take the possession of the suit property through process of court.
Office to draw decree accordingly.
(Dictated to the stenographer over computer, corrected and pronounced by me in open court on this 2nd day of January, 2021.) (B.S.RAYANNAWAR) ADDL.SMALL CAUSES JUDGE & ACMM SCHEDULE Ground Floor portion of the premises bearing No.148 situated at Matadahalli, R.T.Nagar, Bangalore and bounded on East by 165; West by: Road; North by; Site No.147 and South by
149.
ANNEXURE LIST OF WITNESS EXAMINED ON BEHALF OF PETITIONER:
PW.1 Smt.Leelavathi Padmanabha Mahale PW.1 Sri.Rajesh Mahale LIST OF WITNESSES EXAMINED ON BEHALF OF RESPONDENT:
RW.1 Sri.Hanumanth.H.Shidlingappanavar RW.2 Sri.Sharanappa Katagi LIST OF EXHIBITS MARKED ON BEHALF OF PETITIONER:
Ex.P.1 Original Sale Deed Ex.P.1 General Power of Attorney Ex.P.2 Notice issued by Dist. Registrar Ex.P.3 Attornment Notice Ex.P.4 Advance Receipt SCCH - 11 77 HRC No.1082/1995 Ex.P.5 to 31 Bank Receipts Ex.P.32 to 39 Hotel Receipts Ex.P.40 Letter dated 15.06.1990 Ex.P.41 to 50 Electric Bills
Ex.P.41(a) to 50(a) Electric bills payment receipts Ex.P.51 Invitation Ex.P.52 Cover Ex.P.53 Letter (Flying Returns) Mileage Points Statement Ex.P.54 Cover Ex.P.55 VST Tillers and Tractors Company letter Ex.P.55(a) & (b) Memo of Fees Enclosures Ex.P.56 Cover Ex.P.57 KSFC Letter dtd: 07.06.2000 Ex.P.58 Cover Ex.P.59 Invitation for Tea Party Ex.P.60 Cover Ex.P.61 Inland Letter Ex.P.62 Original Sale Deed dated: 24.12.1993 Ex.P.62(a to n) Signatures Ex.P.63 Original Sale Deed dated: 10.10.2018 Ex.P.64 Encumbrance Certificate Ex.P.65 Special notice issued by BBMP Ex.P.66 Khatha Extract Ex.P.67 Certified Copy of Evidence in HRC.No.673/1995 Ex.P.68 Certified Copy of I.A.16 in HRC.No.673/1995 Ex.P.69 Certified Copy of Order in HRC.No.673/95 Ex.P.70 Certified Copy of Application in HRC.NO.673/95 SCCH - 11 78 HRC No.1082/1995 Ex.P.71 Certified Copy of Order on IA.II in HRC.No.673/95 Ex.P.72 Certified Copy of Application on IA.22 in HRC.NO.673/95 Ex.P.73 Certified Copy of Judgment passed before High Court of Karnataka in MFA.No.3884/2001 Ex.P.73 Certified Copy of Judgment passed before High Court of Karnataka in RFA.No.1448/2003 Ex.P.74 Certified Copy of Judgment passed before High Court of Karnataka in RFA.No.2/2004 Ex.P.76 Signatures Ex.P.77 Certified Copy of Additional Statement in HRC.NO.673/95 Ex.P.78 Certified Copy of Judgment passed before High Court of Karnataka in HRRP.No.1561/1998 Ex.P.79 Certified Copy of Order passed before High Court of Karnataka in HRRP.No.14/2019 Ex.P.80 Property Tax Receipt Ex.P.81 Letter to issue certificate Ex.P.82 & 83 Photos LIST OF EXHIBITS MARKED ON BEHALF OF RESPONDENTS:
Ex.R.1 Certified Copy of Plaint in OS.NO.4746/1996
Ex.R.2 Certified Copy of Written Statement in
OS.No.4746/1996
Ex.R.3 Certified Copy of Judgment in O.S.No.4746/1996
Ex.R.4 Certified Copy of IA U/s.10 of CPC
Ex.R.5 Certified Copy of Objection to IA U/s.10 of CPC
SCCH - 11 79 HRC No.1082/1995
Ex.R.6 Certified Copy of Para 8 (2) of deposition of PW1
dated 16.11.2019
Ex.R.7 Certified Copy of deposition of DW1 in OS.6752/93
Ex.R.8 Certified Copy of Will
Ex.R.9 Original Survivership Certificate
I ADDL.SMALL CAUSES JUDGE & ACMM
SCCH - 11 80 HRC No.1082/1995
(Judgment pronounced in open court)
ORDER
The petition filed by the petitioner
U/s.27 (2) (j) & (o) of Karnataka Rent Act is hereby allowed with cost.
First respondent is hereby directed to vacate and hand over the vacant possession of suit schedule property within two months from today, which otherwise, the petitioner is at liberty to take the possession of the suit property through process of court.
Office to draw decree accordingly.
SCHEDULE Ground Floor portion of the premises bearing No.148 situated at Matadahalli, R.T.Nagar, Bangalore and bounded on East by 165; West by: Road; North by; Site No.147 and South by 149.
I ADDL.SMALL CAUSES JUDGE & ACMM
SCCH - 11 81 HRC No.1082/1995
S.C.C.H No.11
AWARD
IN THE COURT OF SMALL CAUSES COURT AT BANGALORE H.R.C.1082/1995 PETITIONER: Smt.Leelavathi.P.Mahale, W/o.Sri.Padmanabha Mahale, Aged 44 years, 9, Supreme Enclave, Mayur Vihar, Phase I, New Delhi.
(Sri.S.C.R. Advocate) V/S -
RESPONDENTS: 1. Sri.Hanumanthappa Siddlingappanavar, 148, Matadahalli Extension, R.T.Nagar, Bangalore.
(Sri.T.H.A. Advocate)
2. Smt.V.Sulochna, D/o.Srinivasa Shetty, Aged 80 years, No.835, F Cross, 22nd Main Road, Jayanagara T Block, Bengaluru560 041.
********* CLAIM: Suit filed on ..................... and prays for directing the respondent to quit, vacate and deliver the vacant possession and such other reliefs.
SCCH - 11 82 HRC No.1082/1995 This suit coming on for final disposal before Sri , Addl. Judge, Court of Small Causes, Bangalore, in the presence of Sri/Smt. Advocate for the petitioner and Sri/Smt. Advocate, for the Respondent.
ORDER The petition filed by the petitioner U/s.27 (2) (j) & (o) of Karnataka Rent Act is hereby allowed with cost.
First respondent is hereby directed to vacate and hand over the vacant possession of suit schedule property within two months from today, which otherwise, the petitioner is at liberty to take the possession of the suit property through process of court.
Under the facts and circumstances of the case, there is no order as to costs.
And its is further ordered and decreed that Respondent do pay to the petitioner sum of Rupees towards costs.
SCCH - 11 83 HRC No.1082/1995
SCHEDULE
Ground Floor portion of the premises bearing No.148 situated at Matadahalli, R.T.Nagar, Bangalore and bounded on East by 165; West by: Road; North by; Site No.147 and South by 149.
Given under my hand and seal of the Court this the 2nd day of January 2021.
Registrar, Court of Small Causes, Bangalore.
SCCH - 11 84 HRC No.1082/1995
MEMORANDUM OF COST INCURRED IN THIS SUIT
By the
Petitioner Respondent
Court fee paid on
Petition
Court fee paid on
Powers
Court fee paid on
exhibits
Service of Process +
Postal charges
Commissioner's
fees
Pleaders fee
Total Rs.
Amount payable by the respondent to the
petitioner is Rs.
Decree Drafted Scrutinised by Registrar,
Court of Small Causes
Decree clerk Sheristedar Bengaluru