Bangalore District Court
Mr. Mohammed Sirajul Hassan vs Mr. Abdul Gaffar Khan on 28 March, 2017
FORM No.9 (civil)
Title sheet for
Judgments in Suits
[R.P.92]
GOVERNMENT OF KARNATAKA
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XV ADDL.JUDGE:
Court of Small Causes, Mayo Hall Unit,
Bengaluru.(SCCH.19)
Dated this the 28th day of March 2017
Present : Sri. S.R. PARADESHI,
B.Com. LL.B.(Spl.)
XV Addl. Small Causes Judge
& XXIII ACMM, Bengaluru
SC.No.15417/2014
Plaintiff: 1. Mr. Mohammed Sirajul Hassan,
S/o late A.H. Khaiser,
aged about 52 years,
2. Mrs. Shaheen Rahman,
W/o. Mohammed Sirajul Hassan,
Aged about 46 years,
Both are residing at No.574,
30th 'B' Cross,
Tilak Nagar, Jayanagar,
Bengaluru - 560 041.
(Pleader, by Sri. S.A.H. Razvi)
2 SC.15417/2014
SCCH-19
-V/s-
Defendants: Mr. Abdul Gaffar Khan,
S/o.Late Khader Khan,
Aged about 53 years,
Old No. A-85, New No.225,
Nawab Hyder Ali Main Road,
Kalasipalyam, Bengaluru.
(Pleader, by Sri. Ramachandra.)
*********
Date of Institution : 10-12-2014
Nature of the suit : Ejectment
Date of commencement of : 23-03-2016
recording of evidence
Date on which the Judgment : 28-03-2017
Was pronounced
Total duration : YEAR/S MONTH/S DAY/S
02 03 18
(S.R.PARADESHI)
XV Addl. Small Cause Judge &
XXIII ACMM, Bengaluru.
********
JUDGMENT
This is the suit filed by the plaintiffs No.1 & 2
against the defendant and prayed for this Court may be pleased to direct the defendant to quit, vacate and deliver 3 SC.15417/2014 SCCH-19 the physical vacant possession of the suit schedule property and also directed to pay the arrears of rent in a sum of Rs.7,500/- and to pay damages for the use and occupation of the suit schedule property from month of November up to the date of actual possession at the rate of Rs.16,000/- per month and costs of the suit.
2. The brief facts of the plaintiff's case are as under:
According to the plaintiffs, they are the rightful and absolute co-owners of commercial premises bearing Shop No.225, Ground Floor, situated at Nawab Hyder Ali Main Road, Kalasipalya Bengaluru. It is further submitted that the defendant is the tenant in respect of the suit schedule property of 202.5 sq.feet on a monthly rent of Rs.500/-. It is further submitted that the defendant has taken the suit schedule property on lease from the earlier land lord. It is further submitted that the plaintiffs after purchase of property from Mrs. Smt. Zarina Begum and her family members have already issued letter of attornment of tenancy and subsequently the plaintiffs have also issued a legal notice for attornment of tenancy dated 27-03-2014, which the defendant has not done. It is further submitted that defendant has not paid the 4 SC.15417/2014 SCCH-19 rents from August 2013 and therefore, the defendant is in arrears of rent in a sum of Rs.7,500/- till October 2014 and as the plaintiffs were no longer interested in continuing defendant's tenancy, they terminated the tenancy.
The plaintiffs further submitted that they have issued a legal notice dated 21-10-2014 under Section 106 of Transfer of Property Act terminating the tenancy of the defendant calling upon him to deliver the vacant possession of the suit schedule property, but the defendant has not vacated the schedule premises till now and therefore the occupation of schedule property by the defendant is unauthorized and as such the defendant is liable to be ejected. It is further submitted that the tenancy is a month to month tenancy and the suit schedule property is a commercial premises measuring more than 152 sq.ft. and therefore the Rent Act is not applicable. Hence, notice issued under Sec.106 of T.P.Act is valid. It is further submitted that the defendant has failed to comply with the legal notice and he is bound to pay for every month damages for use and occupation of the suit schedule property after termination of the tenancy from November 2014 for a sum of Rs.16,000/-
per month from the date of suit till vacating the schedule property and hence, prayed to decree the suit.
5 SC.15417/2014SCCH-19 SCHEDULE All that pieces and parcel of Premises bearing Shop No.225, PID No.47-46-225, on Ground floor, situated at Nawab Hyder Ali Main Road, Kalaskipalyam, Bengaluru - 560 002, bounded on:
East by : Kalasipalyam main Road,
West by : Portion of property No.226 belonging
To Nasreen Taj & Others
North by : Portion of property No226 belonging
To Nasreen Taj & Others
South by : Shop No.223,222 & 221 & thereafter
Staricase belonging to the plaintiffs.
3. In response to the suit summons, the Defendant has appeared before this Court through his counsel and filed the written statement inter alia contenting that in view of denial of relationship of landlord and tenant, the Court of Small Causes has no jurisdiction to entertain the suit. It is further contended that the defendant is in possession of schedule property in part performance of the agreement of sale and they have also instituted a suit for Specific Performance in O.S.No.6136/2014 pending before the City Civil Court, Bengaluru and as such this Court has no jurisdiction to try the suit as the present suit appears to be suit for 6 SC.15417/2014 SCCH-19 possession after alleged termination of tenancy by the plaintiffs and question of title cannot be gone into this Court of Small Causes.
4. The defendant further contended that, plaintiffs are not right full and absolute owners of commercial premises bearing No.225, on ground floor situated at Nawab Hyder Ali Main Road, Bengaluru. It is also denied that the defendant had taken on lease from the earlier landlord. It is also denied that the plaintiffs after purchase of property from Mrs. Zarina Begum and her family members have issued letter of attornment of tenancy. It is further contended that that the plaintiffs have not issued a legal notice for attornment of tenancy of 27-03-2014 as contended by them. It is further contended that the plaintiff is residing adjacent to the property in occupation of this defendant, has stage managed to get an acknowledgement. The acknowledgement is manipulated and even the suit summons by RPAD by accepting the same in the absence of the defendant. It is also denied that the defendant is in arrears of rent since October 2014.
5. The defendant further submitted that the landlord Smt. Zarina Begum and her children have executed an agreement of sale and informed not to pay 7 SC.15417/2014 SCCH-19 the rent in future and on failure to execute the sale deed, the defendant has filed suit as states supra and hence, the defendant is not in arrears of rent.
6. The defendant has admitted that a legal notice dated 21-10-2014 was got issued by the plaintiffs, but the plaintiff stage managed to receive the same as he is also occupant of the adjacent premises, however subsequent to receipt of the notice is was delivered to this defendant and he has replied suitably, but this fact was deliberately suppressed by the plaintiff. It is further submitted that there was no necessity to vacate the property in occupation of the defendant as he is in part performance of the contract as indicated by Smt. Zarina Begum. It is further contended that when there is no relationship of landlord and tenant, there is no question of terminating the tenancy and seeking damages for use and occupation and claiming Rs.16,000/- per month would not arise. It is further submitted that there is no cause of action at all for the suit. Hence, on all these ground, the defendant has prayed for dismissal of the plaint with costs.
7. To prove their case, the plaintiff No.1 got examined himself as PW1 and got marked 22 documents as Ex.P.1 to P.22 and closed their side. On the other 8 SC.15417/2014 SCCH-19 hand to rebut the case of the plaintiff, the Defendant got examined himself as DW1 and got marked five documents as Ex.D1 to D.5 and closed his side.
8. Heard the arguments and perused the material available on record.
9. The following points arise for discussion before this Court:
1. Whether plaintiffs prove the relationship of landlord and tenant?
2. Whether notice issued by the Plaintiff terminating the tenancy of the Defendant U/sec.106 of the T.P. Act is in order?
3. Whether the Plaintiff is entitled for the arrears of rent and damages as prayed for?
4. Whether the plaintiff is entitled for the relief as prayed for?
5. What order/decree?
10. The above points are answered as under:
Point No.1 : In the Affirmative, Point No.2 : In the Affirmative, Point No.3 : Partly in the Affirmative, Point No.4 : Partly in the Affirmative, Point No.5 : As per final order, 9 SC.15417/2014 SCCH-19 for the following :
REASONS
11. Points No.1 & 2:- These two points are inter connected and inter related with each other, hence they are taken up together for common discussion to avoid repetition and appreciation of evidence of the parties on record.
It is the case of Plaintiffs that, they are the rightful and absolute co-owners of commercial premises bearing Shop No.225, Ground Floor, situated at Nawab Hyder Ali Main Road, Kalasipalya Bengaluruand the defendant is the tenant in respect of the suit schedule property on a monthly rent of Rs.500/-. It is further submitted that the defendant has taken the suit schedule property on lease from the earlier land lord. Then, the plaintiffs after purchase of property from Mrs. Zarina Begum and her family members have already issued letter of attornment of tenancy and subsequently the plaintiffs have also issued a legal notice for attornment of tenancy dated 27- 03-2014, which the defendant has not done. It is further submitted that defendant has not paid the rents from August 2013 and therefore, the defendant is in arrears of rent in a sum of Rs.7,500/- till October 2014 and as the plaintiffs were no longer interested in continuing 10 SC.15417/2014 SCCH-19 defendant's tenancy, they terminated the tenancy by issuing notice dated 21-10-2014 under Section 106 of Transfer of Property Act, but the defendant not vacate till now and therefore the occupation of schedule property by the defendant is unauthorized and as such the defendant is liable to be ejected. As the defendant failed to comply with the legal notice, he is bound to pay for every month damages for use and occupation of the suit schedule property after termination of the tenancy from November 2014 for a sum of Rs.16,000/- per month from the date or suit till vacating the schedule property and hence, prayed to decree the suit.
12. To rebut the case of the plaintiffs, the main defence that there was no necessity to vacate the property in occupation of the defendant as he is in part performance of the contract as indicated by Smt. Zarina Begum. It is further contended that when there is no relationship of landlord and tenant, there is no question of terminating the tenancy and seeking damages for use and occupation and claiming Rs.16,000/- per month would not arise.
13. It is further contended that the plaintiff is residing adjacent to the property in occupation of this defendant, has stage managed to get an 11 SC.15417/2014 SCCH-19 acknowledgement. The acknowledgement is manipulated and even the suit summons by RPAD by accepting the same in the absence of the defendant. It is also denied that the defendant is in arrears of rent since October 2014.
14. To substantiate their case, the Plaintiff got examined himself as Pw.1 and he has filed his affidavit by way of examination-in-chief, in which he has reiterated all the averments made in the Plaint. He got marked 22 documents as Ex.P1 to P.22. Ex.P.1 is the Office copy of legal notice for attornment of tenancy. Ex.P.2 is Postal receipt. Ex.P.3 is Postal acknowledgement. Ex.P.4 is Office copy of termination notice. Ex.P.5 is Postal receipt. Ex.P.6 is Postal acknowledgement. Ex.P.7 is Khata certificate. Ex.P.8 is Letter of attornment of tenancy. Ex.P.9 is Postal receipt. Ex.P.10 is Postal acknowledgement. Ex.P.11 is Original registered sale deed dated 06-08-2013. Ex.P.12 is the Rent receipt book. Ex.P.13 to P.20 are Counter receipts ( 8 in Nos.). Ex.P.21 is Certified copy of written statement of defendant No.1 to 3 in O.S.No.6136/2014. Ex.P.22 is Certified copy of written statement of defendant No.4 and 5 in O.S.No.6136/2014. 12 SC.15417/2014 SCCH-19
15. In this case, the defendant himself examined as DW1 and got marked five documents as Ex.D.1 to D.5. Ex.D.1 are Photographs. Ex.D.2 is the Notice sent by the plaintiffs. Ex.D.3 is the reply notice by defendant. Ex.D.4 is the Postal receipt. Ex.D.5 is Postal acknowledgement.
16. By perusing the evidence of both parties and also documents, the plaintiffs No.1 & 2 have taken contention that they have purchased the suit schedule property from its earlier vendor by name Smt. Zarina Begum and others by way of registered sale deed on 06- 08-2013. In this case, the plaintiff No.1 examined as PW1 and he has produced the absolute registered sale deed marked at Ex.P.11. The PW1 has further deposed that on the basis of the said registered sale deed, their names have entered in the Khatha extract and for that they have also produced Khatha Certificate marked as Ex.P.7, which reveals that the names of plaintiffs No.1 & 2 are mutated on the basis of the sale deed pertaining to the suit schedule property. The PW1 further deposed that the defendant is earlier tenant under their vendor and after purchase of the suit schedule property, they have issued notice to the defendant, intimating the same that they have became the owners of the schedule 13 SC.15417/2014 SCCH-19 property and also stated that they have purchased the same from one Smt. Zarina Begum and her family members. It is also taken contention that as such they have become the landlord of the suit schedule property and the defendant is the tenant under them.
17. PW1 further deposed that inspite of service of notice, the defendant has not replied to the same and thereafter they have issued termination notice by terminating the tenancy of the defendant and prayed that to handover the vacant possession of the suit schedule property. On the other hand, as per the evidence of the defendant and pleadings he is not at all the tenant under the plaintiffs and no lease agreement had taken place between them. However, in his written statement he has taken contention that he was the tenant under Smt. Zarina Begum and said Smt. Zarina Begum and her family members have executed an agreement of sale in his favour and also handed over the possession of the schedule property by an agreement of sale and since then, he is in possession of the schedule property, but he is not the tenant under the plaintiffs. It is further deposed that since the Smt. Zarina Begum and her family members have not executed the registered sale deed, the defendant has filed a suit against the Smt. 14 SC.15417/2014 SCCH-19 Zarina Begum and also against present plaintiffs bearing O.S. No.6136/2014, pending before the City Civil Court, Bengaluru for Specific Performance of Contract.
18. In the cross-examination of PW1, it was asked that whether Smt. Zarina Begum issued attornment of tenancy notice to the defendant, for that he deposed that she has issued notice in the month of March 2014. Though the plaintiffs have not produced the said document, but they have produced a document/notice to show that after purchase of the schedule property they became the owners of the suit schedule property and requested the defendant to pay the rent directly to them and this document is marked as Ex.P.8 and this document is dated 17-01-2014. The defendant has taken contention that he has not at all received the notice and the plaintiffs have got colluded with the postal authorities and got created postal acknowledgement stating that it is served on the defendant. The plaintiffs have also produced postal receipt to show that he has issued notice dated 17-01-2014 marked as Ex.P.9 and the said notice according to the plaintiffs was duly served upon the defendant on 18-01-2014. According to the defendant, the signature appearing in Ex.P.10 is not belongs to him and he has argued that one Babu was working in the 15 SC.15417/2014 SCCH-19 shop of the plaintiff and notice is served on the said Babu, but not on the defendant. In the cross- examination of DW1 when it was asked him that said Smt. Zarina Begum has issued legal notice to him, for that he deposed that no notice was issued to him. However, he further voluntarily deposed that said Smt.Zarina Begum has given one year time.
19. It is important to note that the address mentioned in the cause title of the plaint and also address mentioned in the evidence of DW1 are one and the same and the address mentioned in Ex.P.8 to P.10 are also one and the same. So, it is presumed that whenever the notice was issued through registered post to the correct address where the defendant is residing, it was duly served upon him, because the address mentioned in the Ex.P.8 to P.10 and in the cause title of the plaint and also in the evidence of DW1 are one and the same. So, in my opinion the notice of attrornment was served upon the defendant. It is interesting to note that the said notice was issued on 17-01-2014 and it was served on 18-01-2014 and the defendant has filed a Civil Suit against the present plaintiffs and Smt. Zarina Begum and her family members on 11-08-2014. So, only 16 SC.15417/2014 SCCH-19 after receipt of the notice he has filed the said original suit before the City Civil Court, Bengaluru.
20. The defendant in the written statement, has not pleaded that on which date the said Smt. Zarina Begum has executed the agreement of sale and what was the consideration amount of agreement of sale and also not mentioned whether the said agreement of sale is registered document or not. For the first time, in his evidence the defendant has deposed that said Smt. Zarina Begum has executed the agreement of sale on 25- 05-2013 and he has paid a sum of Rs.3 lakhs as consideration out of Rs.6 lakhs i.e. exactly half an amount was paid towards consideration. He further deposed that even before the time stipulated to perform the agreement, plaintiffs have created the sale deed. So, he has filed the suit for Specific Performance of Contract bearing O.S.No.6136-2014. In order to know what is the time fixed for performance of sale agreement of sale, the defendant has not produced the said document. So, it is not possible to come to the conclusion that what was the date of performance of agreement.
21. According to the defendant, the agreement of sale took place on 25-05-2013, but he kept quite till 11- 08-2014 and he has filed the suit for performance of 17 SC.15417/2014 SCCH-19 contract. In the month of January i.e. on 17-01-2014 itself the plaintiff has issued a notice of attornment to the defendant requesting him to pay the rents as they became the owners on the basis of the said sale deed. The defendant has not explained why he has kept quite for more than 7 months after he came to know about the execution of sale deed by the vendors in favour of the plaintiffs. So, it is clear that the plaintiffs have issued notice on 17-01-2014 to the defendant about purchase of suit schedule property from their vendors.
22. The plaintiffs have also taken contention that before issuance of termination notice, they have issued a notice dated 27-03-2014 to the defendant and stated that inspite of service of notice, the defendant has failed to pay the rents and there is a due of rents from August 2013 and this document is marked as Ex.P.1, the postal receipt is marked as Ex.P.2 and postal acknowledgement is marked as Ex.P.3, the termination notice dated 21-10- 2014 is marked as Ex.P.4, postal receipt is marked as Ex.P.5 and postal acknowledgement is marked as Ex.P.6. The plaintiff has also taken contention that since the defendant has failed to pay rents, he has issued termination notice to the defendant dated 21-10-2014 and this notice is duly served upon the defendant.
18 SC.15417/2014SCCH-19
23. The defendant has taken contention that no notice is served upon him as per Ex.P.1 and the signature appearing on Ex.P.3 is not belongs to him. As I have already discussed that the address mentioned in the Ex.P.1 to P.3 and in cause title of the plaint and also in the evidence of defendant are one and the same, question of not receiving the notice as contended by the defendant does not arise at all. So, it is presumed that the notice was duly served upon the defendant.
24. The defendant has also taken contention that he has not received any termination notice as per Ex.P.4 to P.6. He has also taken contention that the acknowledgement card is manipulated by the plaintiffs. The defendant himself by leading his evidence has produced the copy of legal notice sent by the plaintiffs marked as Ex.D.2 and he has given reply to the said notice dated 27-10-2014 is marked as Ex.D.3 and postal acknowledgement is marked as Ex.D.5 to show that the reply notice was served on the plaintiffs. On one count, the defendant has taken contention that not notice was served upon him, but he himself has replied to the said notice. So, the contention of the defendant that no termination notice was served upon him is not holds good. So, the plaintiffs have proved that as per Sec.106 19 SC.15417/2014 SCCH-19 of Transfer of Property Act, they have issued a termination notice to the defendant, terminating his tenancy over the suit schedule property.
25. The main contention of the defendant is that the plaintiffs' vendor has executed the agreement of sale in favour of him and they have also received the consideration amount, but they have failed to execute the sale deed. So, the defendant has filed a suit against the present plaintiffs and Smt. Zarina Begum and her family members. So, the defendant has taken contention that he is in possession of the schedule property not as tenant, but on the basis of agreement of sale. For this, the learned advocate for defendant has relied upon the ruling reported in AIR 2010 SC (Supp) 670 (Joseph Kantharaj & Anr. V/s. Attharunnisa Begum.S). The learned advocate for plaintiffs has also relied upon the same ruling. According to the defendant when there is a suit, pending for Specific Performance of Contract and execution of agreement of sale in his favour by the vendor of the plaintiffs, who have also admitted his possession, the plaintiffs are not entitled for the relief as sought for. On the other hand, in said ruling at para No.10, it is held as under;
20 SC.15417/2014SCCH-19 "10. We may however clarify that a mere assertion by a tenant that he is in possession in part performance of an agreement of sale, or the mere filing of a suit for a specific performance, by itself will not lead to deferment of eviction proceedings under Section 43 of the New Act. But where the respondent in an eviction proceeding under the Rent Act denies the relationship of landlord and tenant contending that he is not in possession as a tenant and produces and relied upon an agreement of sale in his favour which confirms delivery of possession in past performance, and a specific performance suit is pending and there is no lease deed, or payment of rent from the date of such agreement of sale, or no acknowledgement of attornment of tenancy, section 43 of the New Act may apply. But a work of caution, Courts dealing with summary proceedings against tenants under Rent Acts for eviction, should be wary of defendants coming forward with defences of agreement of sale, lest that becomes a stock defence in such petitions. Unless the Court is satisfied prima facie that the agreement is genuine and defence is bona fide, it should not defer the proceedings for eviction under the Rent Acts."
In view of this ruling, the defendant has not produced the agreement of sale to show that he is in the possession of suit schedule property on the basis of said agreement of sale. Due to non production of the document, it cannot be possible to believe that he is in possession of the suit schedule property on the basis of agreement of sale dated 25-5-2013.
21 SC.15417/2014SCCH-19
26. The learned advocate for defendant has relied upon the ruling reported in AIR 2009 KAR 88 ( B.Paramashivaiah & Anr. V/s. M.K. Shankar Prasad & Anr.), wherein it is held as under;
"(B) Transfer of Property Act ( 4 of 1882), S.53A
- Part performance of contract - Tenant has no right to seek protection of his possession by virtue of S.53-A when a jural relationship is that of landlord and tenant- Rent Act would prevail and landlord could seek eviction in terms of provisions of said Act - However, where tenant is in possession of premises by virtue of an agreement to sell and does certain acts in furtherance of said agreement, relationship of landlord and tenant would cease from the date of agreement - Would be replaced by a new relationship of intending purchaser and seller -
S.53A enables such tenant/purchaser in possession of premises by virtue of agreement or contract to defend his possession."
As per this ruling the defendant has failed to show that there is an agreement of sale executed between the vendor of the plaintiffs and himself and he has been in possession suit scheduled property on basis of specific performance of contract.
27. I have relied upon the ruling reported in ILR 20006 KAR 2766m of our own Hon'ble High Court of Karnataka (Sri. Haji Iqbal Shariff V/s. Smt. C. Manjula), wherein it is held that once the person in occupation of 22 SC.15417/2014 SCCH-19 premises , admits that he written statement the tenant under the previous owner, that can be taken as evidence of relationship of landlord and tenant between the transferee from previous owner and such tenant.
28. The learned advocate for plaintiffs relied upon the ruling reported in CDJ 2011 SC 1075 ( Suraj Lamp Pvt. Ltd., V/s. State of Haryana & Anr.), wherein it is discussed about the Sec. 53(A) of T.P.Act and also discussed about the Sec.17 of Registration Act, wherein it is also held that as per Sec.17(1A)- The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of property Act , 1882 ( 4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.
29. In the present case, as per the evidence of the respondent the said agreement of sale came to be entered between the plaintiff and Smt. Zarina Begum on 25-05- 2013. As this agreement of sale is not registered, in view 23 SC.15417/2014 SCCH-19 of above ruling it has no effect for purpose of Section 53A.
30. In the above ruling it is also observed that , "as per Sec.54 of T.P. Act make it clear that a contract of sale, i.e. an agreement of sale does not, of date, create any interest in or charge of such property." The defendant has not explained whether the said agreement of sale is registered one or not and there is no hurdle for the defendant to produce the said document before the Court, but he has not produced it. The plaintiff; has filed produced the counter foil of rent receipts marked as Ex.P.13 to P.20. The PW1 in his cross-examination has deposed that these rent receipts paid by the Smt. Zarina Begum at the time of execution of sale deed. The learned advocate for defendant has suggested that these rent receipts were got created by the plaintiffs and Smt. Zarina Begum, whereas, the DW1 in his cross- examination has clearly admitted that he was paying the rent at the rate of Rs.500/- per month to Smt. Zarina Begum and he has stopped payment of rent from the date of execution of agreement of sale. As I have already discussed that the defendant has not produced the agreement of sale and he has failed to prove that he is in possession of schedule premises on the basis of 24 SC.15417/2014 SCCH-19 agreement of sale and on the other hand it shows that the plaintiff is the landlord and defendant is the tenant. Hence, I answered points No.1 & 2 in the Affirmative.
31. Point No.3 & 4:- Since these two points are inter connected and inter related with each other, they are taken up together for common discussion to avoid repetition and appreciation of evidence of the parties on record.
According to the plaintiffs, the defendant is the tenant in respect of the suit schedule property on monthly rent of Rs.500/-. They have also taken contention that the defendant has not paid the rents from August 2013 and he is in arrears of rent of Rs.7,500/- till filing of this plaint. It is also contended that after termination of the defendant by issuing termination notice, the defendant has not vacated the premises, hence they are entitled for damages to the extent of Rs.16,000/- per month for unauthorized occupation. On the other hand the defendant has taken contention that earlier he was paying the rent to the land lady Smt. Zarina Begum and after execution of the agreement of sale the said Smt. Zarina Begum requested him not to pay the rent and as such he has not paid the rents.
25 SC.15417/2014SCCH-19
32. In turn, in this case, the plaintiffs have purchased the suit schedule property by way of registered sale deed dated 06-08-2013 from Smt. Zarina Begum and her family members and they have issued a attornment of tenancy to the defendant on 17-01-2014 stating that they have purchased the suit schedule property from Smt. Zarina Begum and also requested to attorn their tenancy to pay the rents to them. Thereafter, the plaintiffs have issue another notice dated 27-03-2014 stating that the defendant has not paid the rents from August 2013. Though the defendant has taken contention that no notices are served upon him, but in the above paras, I have discussed and observed that, how the said notices served upon the defendant. So, in my opinion after purchase of the suit schedule property, the plaintiffs are entitled to recover the rent at the rate of Rs.500/- per month from August 2013.
33. Further the plaintiffs have prayed for damages of Rs.16,000/- per month for unauthorized occupation of schedule premises after issuance of termination notice. In this regard, the plaintiffs have not produced any documents to show that due to unauthorized occupation of defendant, they are entitled for Rs.16,000/- by way of damages. The PW1 in his cross-examination admitted 26 SC.15417/2014 SCCH-19 that adjoining to the suit schedule premises, his shop is situated and earlier he was paying the rent of Rs.500/- per month to the land lady Smt. Zarina Begum. Further when it was asked him, whether said Smt. Zarina Begum has enhanced the rate of rent pertaining to the shop of the plaintiff, for that he deposed that since he was an old tenant she has not enhanced the rate of rent. So, in my opinion the plaintiffs are not entitled for damages at the rate of Rs.16,000/- per month as they prayed for, however they are entitled for damages at the rate of 1000/- per month from the date of filing of the suit till delivery of vacant possession of the scheduled premises and also they are entitled for recover the rent of Rs.500/- per month from August 2013 till handing over the vacant possession of the suit schedule premises by the defendant. Hence, I answered Point No.3 & 4 Partly in the Affirmative.
34. Point No.5:- In view of the above discussions and answer to the above points, it is just and proper to pass the following:
ORDER The suit of the plaintiff is Partly decreed with costs.27 SC.15417/2014
SCCH-19 The defendant is hereby directed to quit, vacate and handover the vacant possession of the suit schedule property to the plaintiffs No.1 & 2 within three months from the date of this order.
The defendant is hereby directed to pay the Rent of Rs.500/- p.m. from August 2013, till the date of delivery of the vacant possession of the suit schedule property in favour of the Plaintiffs.
The plaintiffs are also entitled for damages at the rate of Rs.1,000/- per month from the date filing of the suit till delivery of vacant possession of the suit schedule property.
Draw decree accordingly.
(Dictated to the Stenographer, computerized transcript thereof corrected by me and then pronounced in the open court on this the 28th day of March 2017).
(S.R.PARADESHI) XV Addl. Small Cause Judge & XXIII ACMM, Bengaluru.
ANNEXURE:
Witnesses examined for plaintiff:
PW.1 : Mr. Mohammed Sirajul Hassan 28 SC.15417/2014 SCCH-19 Documents marked for plaintiff: Ex.P.1 : Office copy of legal notice for attornment of tenancy. Ex.P.2 : Postal receipt. Ex.P.3 : Postal acknowledgement. Ex.P.4 : Office copy of termination notice. Ex.P.5 : Postal receipt. Ex.P.6 : Postal acknowledgement. Ex.P.7 : Khata certificate. Ex.P.8 : Letter of attornment of tenancy. Ex.P.9 : Postal receipt. Ex.P.10 : Postal acknowledgement. Ex.P.11 : Original registered sale deed dated 06-08-2013. Ex.P.12 : Rent receipt book. Ex.P.13 to P.20 : Counter receipts ( 8 in Nos.). Ex.P.21 : C.C of written statement of defendant No.1 to 3 in O.S.No.6136/2014. Ex.P.22 : C.C of written statement of defendant No.4 and 5 in O.S.No.6136/2014. Witnesses examined for defendant: DW1 : Mr. Abdul Gafar Khan 29 SC.15417/2014 SCCH-19 Documents marked for defendant: Ex.D.1 : Photographs.
Ex.D.2 : Notice sent by the plaintiffs. Ex.D.3 : Reply notice by defendant. Ex.D.4 : Postal receipt. Ex.D.5 : Postal acknowledgement.
(S.R.PARADESHI) XV Addl. Small Cause Judge & XXIII ACMM, Bengaluru.30 SC.15417/2014
SCCH-19