Bangalore District Court
Asaktha Poshaka Sabha vs Sri.B.N.Venkataramanaiah on 20 November, 2020
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SCCH-2 SC.No.874 of 2018
IN THE COURT OF VI ADDL.SMALL CAUSES,
AT BENGALURU (SCCH-2)
DATED THIS THE 20th DAY OF NOVEMBER 2020
PRESENT: Smt. K UMA ., B.A.L.,LL.B.,.
VI Addl. Small Causes Judge &
ACMM, Bengaluru.
S. C. No.874 OF 2018
Plaintiff: Asaktha Poshaka Sabha,
No.26, Asaktha Poshaka Sabha Road,
Vishveshwaram, Bengaluru - 560 004
Rep. by its Secretary
Sri.B.R.Ashok Kumar
(By Sri. S.Venkatesh, Advocate.)
Vs-
Defendants:
1. Sri.B.N.Venkataramanaiah,
Secretary,
The Mysore Civic and Social Progress
Association, No.63-64,
"Sumana", 80 Feet Road,
Mysore Bank Colony,
Bengaluru - 560 050
(By Sri.H.S.Shankara Sharma, Advocate)
2. Smt.M.L.Shamalambam
W/o.Sri.Narahara Shastry,
R/at Portion of No.26,
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SCCH-2 SC.No.874 of 2018
Asaktha Poshaka Sabha Building,
Vishvewhwaram,
Bengaluru- 560 004
(By Murthy & Associates, Advocates)
-o0o-
JUDGMENT
This suit is for ejectment, to direct the defendants to quit, vacate and handover the vacant possession of the Schedule Premises and direct to pay arrears of rent of Rs.20,097/- together with interest and damages in respect of schedule premises @ Rs.1,000/- per month from the date of suit till handing over the vacant possession of the schedule premises to the plaintiff's society.
The brief facts of the plaintiff's case in nutshell is that:
2. The plaintiff is an association registered under the provisions of the Societies Registration Act and it is running a home for old age and destitute persons. 3
SCCH-2 SC.No.874 of 2018
3. The plaintiff is the absolute owner of the entire property bearing No.26, situated at Asaktha Poshaka Sabha Building, Asaktha Poshaka Sabha Road, Vishveshwarapuram, Bengaluru. The defendant No.1 is a tenant in respect of the office unit in the ground floor measuring 14 feet west to west and 25 ft, with electricity connections which consisting of one office premises, herein after referred as "suit schedule property", on a monthly rent of Rs.99/-, exclusive of all electricity and other charges and the tenancy month is month to month, commencing from first of English calendar month and ending to the last day of the same English calendar month. The first defendant has taken the schedule premises on a rental basis to establish the office.
4. The Plaintiff has further asserted that the first defendant is a defaulter in payment of rent from January 2001 to November 2017 and he is in due of Rs.20,097/- and in spite of repeated requests and demands, the first defendant has failed to pay the arrears of rent. The plaintiff being 4 SCCH-2 SC.No.874 of 2018 entirely depending upon the rental income generated from the building in order to archive the objects of the plaintiff's institution. The 2nd defendant being a relative of first defendant, is in unauthorized occupation of the suit premises. Hence, they caused a legal notice of statutory notice of termination of tenancy under Sec.106 of T.P. Act on 06.12.2017 calling upon the defendants to quit, vacate and handover the vacant possession of the schedule premises to them within 15 days of service of notice and the said notice has been duly served on the 1st defendant, but the defendant No.1 has requested to grant two months time to vacate the schedule premises. The notice issued to 2nd defendant returned un-served with a postal shara 'Door Locked'.
5. The plaintiff has further contended that, the schedule premises, which in occupation of the defendants is old and dilapidated one. In spite of issuance of statutory notice, the defendants neither vacated the schedule premises nor paid the rents till the date and they are in illegal 5 SCCH-2 SC.No.874 of 2018 occupation over the schedule premises and as such, they are liable to pay damages at the rate of Rs.1,000/- p.m. from the date of filing of the suit till they vacate or evict. Hence, the plaintiff is prayed to allow the suit.
6. Pursuant to suit summons by way of substituted service, defendants No.1 and 2 appeared through their counsel's on record, but the defendant No.2 has filed written statement. In spite of sufficient time granted, the defendant No.1 did not file written statement. Hence, written statement of defendant No.1 is taken as not filed. However, the 1st defendant has filed his statement.
7. The defendant No.1 has stated that, he is not a tenant under plaintiff and he is not an occupant; and the defendant No.1 and 2 are only individuals and no cause of action may arise against them personally. Defendant No.1, has stated that, a portion of suit property is in occupation of Mysore Civic & Social Progress Association (MCSPA) and he is an Honorary Secretary of MCSPA since March 2000. A major 6 SCCH-2 SC.No.874 of 2018 contribution of MCSPA to the society was the establishment and development of Asaktha Poshaka Sabha, a home for aged, the infirm and orphans, in 1923. The MCSPA is presently in occupation in the premises bearing No.26, i.e. suit schedule property. 1st defendant has stated that MCSPA needs funds and shelter to undertake social service programs.
MCSPA wanted a care taker to be in place, hence, Smt.Shamala was entrusted with that task. Incidentally she is also sheltered there and she is not a tenant as mentioned in the plaint. 1st defendant has prayed that, as promoter and foster mother MCSPA requests Ashaktha poshaka Sabha to withdraw the case or else requests to grant 18 months time to think of shifting elsewhere or by the time they will have accomplished their plans including an austere centenary celebrations by the end of 2019.
8. In the written statement, the defendant No.2 denied the entire allegations made in the petition and contended that, the Asaktha Poshaka Sabha was built on Land given by 7 SCCH-2 SC.No.874 of 2018 the Government and the entire construction of property was made by one Late Sri.B.N.Sheshadri, none other than the maternal uncle's of the 2nd defendant and his close friend, who had donated their entire life's earnings for the construction of the property. In other words it can be said that, Late Sri.B.N.Sheshadri and his friend are the founders of this organization. He stated the said organization with the object of running a home for old, destitute and also for orphans. As the land is granted to the organization by the Government for running Geriatric Shelter for the destitute and orphans, the plaintiff organization cannot be termed as absolute owners since as soon as the present functioning ceases the land will again get restored to the Government. She is a cousin sister of the 1st defendant. Neither she is a tenant nor she is in unauthorized occupation. She had been granted the right to live in the building as long she is alive by the founders since she is also now 78 years old and is a destitute living on charity of well-wishers. 8
SCCH-2 SC.No.874 of 2018
9. In the written statement, the defendant No.2 has stated that, as long as one Sri.B.L.S. Murthy was at the helm of affairs of the plaintiff, she was well looked after and was provided with coffee and food also, but up to or around 2015, when the management came to the present managing committee, make her get out of the institution. They also broken the door of her room and also stolen her belongings. Even they cut the electricity connection to her room, wherein she is living in the said room without any basis amenities or a door since she has no place to go. The plaintiff with an ulterior motives of throwing out destitute, who has been given a right to live for her life time from the founders, has filed the present suit. Hence, she prays to dismiss the present suit filed against her and prayed to grant relief of permanent injunction restraining the plaintiff from evicting her during her life time and not to harass her by not providing coffee and 3 times food per day and other relief.
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SCCH-2 SC.No.874 of 2018
10. The plaintiff in proof of case examined its secretary as PW.1. Exhibits P.1 to P.8 are marked. The defendant No.2 is examined herself as DW1 and got marked Ex.D1 to Ex.D6
11. Heard arguments of both the parties.
12. The counsel for the defendant No.2 has relied on a decision reported in AIR 2019 Supreme Court 3827 (Civil Appeal No.7764 of 2014).
13. The following points that would arise for my consideration are:
1. Whether the plaintiff and the defendant No.1 has relationship of landlord and tenant?
2. If so whether the tenancy of defendant No.1 is duly terminated in accordance with law?
3. Whether plaintiff is entitled for the relief sought?
4. Whether the defendant No.2 is entitled for the relief of permanent injunction 10 SCCH-2 SC.No.874 of 2018 restraining the plaintiff from evicting her from suit premises and not to harass her by not providing food till she is alive?
5. What order?
14. My answers to the above points are as under:
Point No.1 & 2 : In the Affirmative.
Point No.3 : Partly in the Affirmative.
Point No.4 : In the Negative.
Point No.5 : As per final order
for the following
REASONS
15. POINT No.1 to 4: These points are taken up together for discussion to avoid repetition, as they are interconnected to each other. This suit is for ejectment of the defendants, from the suit property under its occupation.
16. In order to substantiate the contention, the Secretary of plaintiff association has got himself examined as PW1. He filed affidavit in lieu of examination in chief. In chief 11 SCCH-2 SC.No.874 of 2018 examination affidavit PW-1 has reiterated the averments of plaint. PW-1 has deposed that, the plaintiff association is running a home for old age and destitute. The plaintiff association is an absolute owner of the entire property bearing No.26 situated at Asaktha Poshaka Sabha Building, Asaktha Poshaka Sabha Road, V.V.Puram, Bangalore. PW.1 has deposed that, the 1st defendant is a tenant of schedule premises and was paying rent of Rs.99/- per month exclusive of all electricity and other charges.
17. PW.1 has further deposed that, the 2nd defendant being a relative of the 1st defendant is in unauthorized occupation of the schedule premises. The 1st defendant is very irregular in payment of rent. The plaintiff association was entirely depending upon the rental income generated from the building in order to achieve the objects of the plaintiff's institution. The plaintiff association has caused legal notice by terminating the tenancy of defendant under Section 106 of T.P. Act on 06.12.2017 calling upon the 12 SCCH-2 SC.No.874 of 2018 defendants to quit, vacate and hand over the vacant possession within 15 days from the date of service of notice.
PW.1 has further deposed that, the 1st defendant is in arrears of rent of Rs.20,097/- together with interest and damages at the rate of Rs.1,000/- per month from the date of suit till handing over the vacant possession of the schedule premises. Accordingly, prays to direct the defendant to quit and vacate the premises.
18. In order to prove the relationship of landlord and tenant, PW-1 has produced letter written by defendant No.1 and the same is marked at Ex.P1; certified copy of statutory notice marked at Ex.P2; two postal receipts are marked at Ex.P.2(a) and 2(b); two postal track consignments are marked at Ex.P.3 and P.4; unserved postal cover marked at Ex.P.5; certified copy of Judgment in O S No.7422/2012 is marked at Ex.P.6; Certified copy of application is marked at Ex.P.7 and certified copy of order is marked at Ex.P.8. 13
SCCH-2 SC.No.874 of 2018
19. On appreciation of evidence of PW.1 deposed during cross-examination it indicates that, PW.1 is working at plaintiff's association from November 2015 as a Secretary and 180 Senior citizens have taken shelter under the plaintiff association. PW-1 has deposed that, "destitute means, the Senior Citizens who do not have shelter and who cannot take care of themselves. PW.1 has deposed that, since 20 years he is working for plaintiff's association and he is aware of the current events held in the plaintiff's association. PW.1 has deposed that, he is aware of one B.N.Sheshadri. PW.1 has denied to the suggestion given to the effect that, the association was established by the said B.N. Sheshadri.
20. On further appreciation of evidence of PW.1 deposed during cross-examination it indicates that, the plaintiff association was established in the year 1923. PW.1 has denied to the suggestion given to the effect that, the plaintiff association was established in the year 1970 and not in the year 1923. PW.1 has deposed that, he is aware of 2nd 14 SCCH-2 SC.No.874 of 2018 defendant. According to PW.1, the plaintiff association did not accommodate 2nd defendant in the association since 40 years. PW.1 has deposed that, it is true that he stated the 2nd defendant is an unauthorized occupant in the suit premises from 20 years.
21. On further appreciation of evidence of PW.1 deposed during cross-examination it appears that, in order to run the plaintiffs association, they are in need of funds, hence the suit premises was given on rent to the 1st defendant from 40 years and no other portion of the plaintiff association is given on rent. PW.1 has deposed that, the suit premises is in dilapidated condition and 1st defendant was paying rent of Rs.99/- from 2001. According to PW-1, the plaintiff association wants to demolish the suit premises since it is in dilapidated condition and they want to put up new construction in the said place. PW.1 has deposed that, he is aware of one B.L.S. Murthy, who was a President and was a member in Managing Committee and he was taking 15 SCCH-2 SC.No.874 of 2018 care of all the affairs of plaintiff association. PW.1 has deposed that, he is not aware of the fact that, B.L.S. Murthy was providing food and shelter to the 2nd defendant in the plaintiff's association. PW.1 has denied the suggestion given to the effect that, he did not stop any flow of water and electricity to the place, where the 2nd defendant is residing.
22. On further appreciation of evidence of PW.1 deposed during cross-examination, PW.1 has deposed that, the plaintiff association is not getting any grant since 10 years. PW.1 has denied to the suggestion given to the effect that, many persons have donated their respective properties to the plaintiff association. PW.1 has deposed that, they have purchased the building to run the plaintiff association. According to PW.1, a firm which was in DVG road belonging to the plaintiff association was shifted to V.V. Puram, where the present building is situated. In the year 2013, a book called "NELE'' was released while celebrating the 90th year of plaintiff association, which is confronted and got marked as 16 SCCH-2 SC.No.874 of 2018 Ex.D.1, during cross-examination. According to PW.1, the 2nd defendant is not residing in the suit premises on rent.
23. In further chief examination, PW.1 has produced Judgment and Decree passed in O S No.7422/2012 and the petition and order sheet in Execution petition No.1586/2018 at Ex.P.6 to Ex.P.8. During cross-examination PW.1 has deposed that, the 2nd defendant had filed suit in OS No.7422/2012 against the owner of the house, namely, Surya Narayan for collecting money. According to PW.1, the Ex.P.6 Judgment is filed to show that, the 2nd defendant was not residing in the suit premises. According to 2nd defendant, she had given money to Surya Narayan to get repairs done in the room where she was residing. As per Execution petition, the 2nd defendant had received Rs.50,000/- after 2013. According to PW.1, the 2nd defendant is unauthorized occupant in the suit premises.
24. On the other hand, the 2nd defendant has got examined herself as DW.1 who filed affidavit in lieu of 17 SCCH-2 SC.No.874 of 2018 examination-in-chief. In chief-examination affidavit, DW.1 has deposed in consonance with the averments of written statement. DW.1 has deposed that, she is 79 years old and she is a destitute living on charity of well wishers. The management of Plaintiff Association has disconnected the electricity connection to the room, where she lives without main door and window. DW.1 has deposed that, she is neither a tenant nor in occupation of suit premises. According to DW-1, she has right to live in the building as long as she is alive, as per the wish of the founder of plaintiff association, namely, B.N.Sheshadri, who donated all his earnings to construct the building. DW-1 has deposed that, B.L.S Murthy has accepted the same and permitted her to stay in the plaintiff organization since 1970. She was providing with breakfast, lunch, dinner and accommodation and she uses main gate for entry and exist. The golden Jubley Sevener is marked at Ex.D.1.
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SCCH-2 SC.No.874 of 2018
25. DW.1 has further deposed that, after exit of Sri.B.L.S. Murthy, she was deprived of Coffee and food, and the management kept on threatening to vacate the premises and go, since she did not budge and they started harassing her by stopping Coffee and Food. The plaintiff organization Management, has broke the main door and the window of her room and DW.1 has deposed that, she forced to continue living in the unlivable room as she has no place to go. She had requested them to provide her with an alternative place to live with boarding and lodging, which the committee refused and threatened. She being an old lady was beaten up by the gondas of management committee of plaintiff. Therefore, she has taken her presentation on various organization. Accordingly, 2nd defendant prays to dismiss the suit with exemplary costs and to allow her counter claim. 2nd defendant has also prays to restrain the plaintiff permanently by granting injunction.
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SCCH-2 SC.No.874 of 2018
26. In further chief examination, DW.1 has produced sevenere of plaintiff organization at Ex.D.2; the letter addressed to Police Commissioner by the personal Secretary of Chief Minister is produced at Ex.D.3; the letter addressed to Police Commissioner, Sub-division, Chamarajpet by the Personal Secretary of Home Minister at Ex.D.4; the letter submitted by DW.1 to Police Commissioner at Ex.D.5; one more letter addressed to Assistant Police Commissioner, V.V. Puram, Bangalore is at Ex.D.6. This is the evidence placed by the Defendant.
27. On appreciation of evidence of DW.1 deposed during cross-examination it is forthcoming that, the 1st defendant is her cousin and is working as a Secretary of C.V. and Associate Progress Association i.e. 1st defendant. According to DW.1 at present the 1st defendant is not working for the association as he is old. DW.1 has denied to the suggestion given to the effect that, the plaintiff organization has given a small room on rent to 1st defendant. 20
SCCH-2 SC.No.874 of 2018 She has received notice dated 06-12-2017 and she did not issue reply to the said notice as the plaintiff premises was constructed by her brother Sheshadri. DW-1 has deposed that, all the documents about payment of money and construction of house by her brother Sheshadri, are with the plaintiff organization. DW.1 has deposed that, she is neither a tenant nor unauthorized occupant in the suit premises and she is residing in suit premises as a owner.
28. On further appreciation of the evidence of DW.1 deposed during cross-examination it is forthcoming that, DW.1 has denied to the suggestion given to the effect that, she is not a owner of the suit premises and she has been inducted in the suit premises at the time of filing case, which was given on rent to 1st defendant. According to DW.1, all the documents to establish she is the owner of suit property are with the plaintiff organization. DW-1 has deposed that, she is daughter of G.S. Naganna and she was residing in the house No.123-2, 2nd main road, however, according to DW.1, she 21 SCCH-2 SC.No.874 of 2018 was staying in the house for two days and on the third day, she came to suit premises. According to DW.1, Suryanarayan and others had cheated and collected money to the suggestion given to the effect that, she was residing with them on rent. DW.1 has denied to the suggestion given to the effect that, she had lodged complaint stating, Surya Narayan has made her to vacate suit premises. According to DW.1, she filed a case and received back her money.
29. On further appreciation of the evidence of DW.1 deposed during cross-examination it is forthcoming that, according to DW.1, the money was received by her as she had filed execution petition and she did not live the plaintiff organization between the year 2012 and 2017; and she was residing in the house of SuryaNarayan and again by force she entered the suit premises in the year 2017. DW.1 has deposed that one Srinivas Murthy is not her relative and she did not lived as a tenant under the Srinivas Murthy on rent of Rs.3,000/- per month on 08-05-2003. According to DW.1, 22 SCCH-2 SC.No.874 of 2018 she was not paying rent of Rs.6,000/- per month to Srinivas Murthy as per Ex.P.6 Judgment. According to DW.1, she had paid money to Srinivas Murthy up to Rs.45,000/-. DW.1 has denied to the suggestion given to the effect that, she is not connected with the organization and she is created all the documents, which are marked at Ex.D.1 to D.6. DW.1 has denied the suggestion given to the effect that, the 1st defendant is a tenant in suit premises under plaintiff organization. All the possible further suggestions are denied by this witness.
30. The learned counsel for plaintiff has argued that, the 1st Defendant is a tenant and the 2nd Defendant is an unauthorized occupant. The 1st Defendant is silent as per the Ex.P1 letter given by him and the 2nd Defendant is not authorized to stay in suit schedule property. The learned counsel for Plaintiff has argued that, neither 1st Defendant nor 2nd Defendant have replied to the termination notice.
Furthermore, the 2nd Defendant did not produce any
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SCCH-2 SC.No.874 of 2018
document to show she is inmate of Plaintiff association. The learned counsel for Plaintiff has further argued that, during cross examination of DW1, she has deposed that, " she is not a tenant and resided only for 3 days in property as per Ex.P6 Judgment." Therefore, the Judgment has to be looked into and not the oral evidence of D2. Conduct of 2nd Defendant has to be looked into by appreciating Ex.P6 to Ex.P8. The Defense raised by 2nd Defendant cannot be considered. The Aspect of limitation and adverse possession taken by the counsel for D2 will not come within the purview of this court U/s 8 of Small Causes Court Act. On these grounds prays to allow the suit prayer.
31. On the other hand the learned counsel for 2nd Defendant has argued that, Ex.P1 is only an acknowledgement of rent and not a rental agreement, which is written by D1. Therefore, D1 cannot write letter in his own capacity. D2 is staying from 1970, however, for a period of 3 months she moved to a rented house. Counsel for D2 has 24 SCCH-2 SC.No.874 of 2018 further argued that, there is no rental agreement to show that, D2 is a tenant to evict her from the suit premises. As per Ex.P6, D2 was on tenancy in some other house and she moved on 07.04.2006 and she came to the suit property. Till the date of filing this suit, the period of stay of 2nd defendant is 12 years 2 months, hence, the suit is barred by limitation.
32. The learned Counsel for 2nd Defendant has further argued that, the termination notice issued U/s 106 of TP Act is not in order. If the tenancy exceeds more than one year, the document has to be registered as per Section 107 of TP Act. There is no document produced by the Plaintiff to establish monthly tenancy. If according to plaintiff D2 is an unauthorized occupant she cannot be evicted since she is in permissive possession. During cross-examination in page 9 at para 3 in last line PW1 has deposed that, "D2 is residing in suit premises since 20 years". Therefore, D2 is in permissive possession.
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SCCH-2 SC.No.874 of 2018
33. In this connection the learned counsel for D2 has relied on a decision reported in AIR 2019 SUPREME COUT 3837 in case of..., wherein the Honbl'e Apex Court has held that, "Plea of Acquisition of title by adverse possession can be taken by the Plaintiff under the Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on upper side basis in case of infringement of any rights of a plaintiff".
34. On overall appreciation of oral and documentary evidence placed by both the Plaintiff and 2nd Defendant, it is forthcoming that, according to Plaintiff the 1st Defendant is a tenant and the 2nd Defendant is an unauthorized occupant of the suit premises. This fact is denied by both the Defendants. According to 2nd Defendant, she has right to live in the suit premises till she is alive, but in support of her contention no documents are produced.
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SCCH-2 SC.No.874 of 2018
35. On the other hand, the 1st Defendant had submitted his written submission stating both himself and the 2nd Defendant are individuals and he is not a tenant of the plaintiff. However, the 1st Defendant had stated that, he is Honorary Secretary of Mysore Civic and Social Progress Association (MCSPA) since March 2000. According to 1st Defendant, MCSPA is the mother and the plaintiff Association is daughter and they were separated in the year 1970. As per the request of the plaintiff association MCSPA is occupying the premises bearing No.26, which is the suit premises. It is relevant to note that, the 1st Defendant had sought 18 months time to shift the premises since the committee of management of MCSPA will think of shifting elsewhere. Further, the 1st Defendant had stated that, MCSPA wanted a care taker to be in the place, hence, Smt.Shymala i.e. the 2nd Defendant was entrusted with that work and incidentally she is also sheltered there and she is not a tenant. 27
SCCH-2 SC.No.874 of 2018
36. It is relevant to point out that, as per Ex.P1 letter which is written by the 1st Defendant addressing to Plaintiff Association stating the MCSPA is paying rent till December 2000. Therefore, the Plaintiff had taken contention by producing Ex.P1 that, as per the letter written by D1 as a Secretary of MCSPA, which establishes the Landlord and Tenant Relationship between the Plaintiff Association and 1st Defendant-MCSPA. Furthermore, it is apparent on reading written submissions filed by the 1st defendant that, MCSPA has occupied the suit premises and he needs 18 months time to vacate the suit premises. The 1st Defendant did not dispute the Ex.P1 letter by leading evidence. Rather the 1st Defendant had sought time to think over by the management committee of MCSPA to vacate the suit premises. This clearly depicts that, the 1st Defendant - MCSPA is a tenant under Plaintiff.
37. It is pertinent to point out that, the Plaintiff association/PW-1 has produced documents at Ex.P6 to Ex.P8 to show that, the 2nd Defendant was a tenant under 28 SCCH-2 SC.No.874 of 2018 Suryanarayana, i.e. certified copy of judgment and decree in O S No.7422/2012 and certified copies of Execution Petition and order sheet in Ex.P.No.1586/2018. But according to 2nd defendant, money was paid to Suryanarayana to undertake repair work of the room where the 2nd defendant was living, as there was no progress in the work, to recover the amount the 2nd defendant had filed suit and filed execution petition.
38. In this connection on going through Ex.P6 to Ex.P8, it is forthcoming that, the 2nd defendant was a tenant under Suryanarayana and she was forcefully evicted from the place on 07-04-2006 and she is taking shelter in her relatives house. As per Ex.P6 - judgment, damages has been awarded by the Honb'le Sessions Court, Bengaluru. In turn the 2nd Defendant herein had filed execution petition as per Ex.P7 and has received decree amount in installments and finally on 16.02.2019 2nd Defendant has received DD for Rs.80,000/- as per Ex.P8 Order sheet. However, during cross examination of DW1, she has deposed that, she was not 29 SCCH-2 SC.No.874 of 2018 giving Rs.6,000/- as rent to Srinivasa Murthy as per Ex.P6 Judgment. However, according to 2nd Defendant the said Srinivasa Murthy had received Rs.40,000/- from her and she do not remember the date. The 2nd Defendant has deposed that, she was not thrown out of the house from Srinivasamurthy on 07.04.2006.
39. At this stage, it is relevant to point out that, the 2nd Defendant had prayed in her written statement to grant permanent injunction restraining the Plaintiff from evicting during her lifetime and not to harass her by not providing coffee and 3 times food per day. But as discussed herein above, as per Ex.P1 the 1st Defendant i.e. MCSPA is in occupation of suit premises. Furthermore, as per the written submissions made by the 1st Defendant it is evident that, the 2nd Defendant has entrusted as a care taker in the place i.e. MCSPA and later she is also sheltered there. This particular statement of 1st Defendant clearly goes to show that, the 2nd 30 SCCH-2 SC.No.874 of 2018 Defendant is occupied the suit premises without any basis, but she is there as a care taker of MCSPA.
40. On perusal of the oral evidence, coupled with the documentary evidence of plaintiff and that of 2nd defendant as appreciated supra, it is evident that there is jural relationship between the plaintiff and the 1st defendant association and which is not disputed by the 1st defendant. No doubt there is no rental or lease agreement entered by and between the plaintiff and the 1st defendant. 1st defendant has never denied the rent mentioned by the plaintiff in the plaint and in the affidavit. It is very relevant to note that, as on the date of suit, the 1st defendant is tenant under plaintiff.
41. The contesting 2nd defendant has taken contention that, the issuance of termination of tenancy notice is not in accordance with law, since tenancy is more than a year and as per Section 107 of TP Act, the instrument has to be registered. As discussed supra, the 1st defendant has paid 31 SCCH-2 SC.No.874 of 2018 monthly rent as per Ex.P1. The Ex.P2 notice has been issued on 06.12.2017 as per postal receipts marked at Ex.P2(a) and Ex.P2(b). The contents of termination notice depicts that, the tenancy has been terminated on expiry of 15 days of service of legal notice. As per Ex.P4, the notice has been served on 08-12-2017. After giving 15 days period as required under law, and after six months period, this suit has been filed.
42. As discussed supra the 1st defendant is a tenant in the suit property and the ownership of plaintiff over the suit property is not in dispute. Therefore, it has to be stated that the plaintiff is the absolute owner of the suit schedule property, wherein the 1st defendant is in occupation of suit premises and had been inducted as a tenant. It is relevant to note that the termination of tenancy is in dispute. As appreciated supra, it is clear that the plaintiff being landlord had let out the schedule premises to the 1st defendant and on the date of the suit. Whether the 1st defendant had defaulted 32 SCCH-2 SC.No.874 of 2018 towards payment of rents, had not been proved by any documentary evidence.
43. In the case on hand the plaintiff had given termination notice terminating the tenancy through legal notice, which is marked as Ex.P2. An eviction notice is meant to inform that a legal process of eviction is about to begin if the landlord grievance cannot be resolved. The 1st defendant being a tenant, his tenancy had been terminated.
44. in this connection it is not out of lace to rely on a decision reported in ILR 2015 KAR 2188 (Smt. Rudravva and others Vs. Smt.Suma and others). The Honbl'e High Court of Karnataka in its decision at para 26 has observed that;
"Even otherwise, Section 106 of the Transfer of Property Act has stood amended with effect from 31.12.2002 vide Act 3 of 2003 of the Parliament. Sub-Section 3 of Section 106 of amended Act, a notice under sub-Section 1 of Section 106 shall not 33 SCCH-2 SC.No.874 of 2018 be deemed to be invalid, merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry, the period mentioned in that sub-Section....''
45. The present suit has been filed on 26.06.2018 i.e. after the expiry of the period mentioned in sub section 3 of Section 106 of TP Act and the termination notice is in order. As per Ex.P6 to Ex.P8 the 2nd Defendant was residing elsewhere and later on she shifted to her relatives house. This shows the 2nd Defendant was not living in the suit premises as contended by her in the written statement. The 1st Defendant being a tenant in the suit premises has obligation to vacate the suit premises without causing any delay. Further, the contention of 2nd defendant stating the titles of D2 by way of Adverse Possession can not be considered, since this court has no scope or jurisdiction to record findings on this aspect. Furthermore, this court has no jurisdiction to 34 SCCH-2 SC.No.874 of 2018 grant relief of permanent injunction as prayed by 2nd defendant.
46. It is relevant to point out that, though the plaintiff has not substantiated the claim of arrears of rent, it is the duty of the 1st defendant to pay the rent regularly. However, the 1st defendant being engaged in social work and as contended by the 1st defendant-MCSPA, the plaintiff association is daughter of MCSPA and the 1st defendant has stated that they need funds to carryout social service work. Moreover, the plaintiff did not produce any documents to show that, the 1st Defendant is in due of rent as prayed in the plaint. Hence, it would be wise on behalf of the Plaintiff to wave off the due of rent if any to be payable by the 1st defendant. Furthermore, the 2nd defendant did not establish that, she has right to live in the suit premises until she is alive. According to 2nd defendant, she being age old lady has no place to go. In this regard this court has made efforts by referring the matter before Lokadalth for settlement of issue. Despite efforts, the issue was not settled between the parties. 35
SCCH-2 SC.No.874 of 2018
47. It relevant to point out that, throughout the trial the 1st defendant did not take any initiative either to vacate the suit premises nor contested the suit, by leading evidence. Rather, 1st defendant has prayed 18 months time to vacate the suit premises from the date of filing written submissions and has stated that 2nd defendant was entrusted with a work of care taker of MCSPA. Therefore, it evident that, the 2nd defendant was not living as of right in the suit premises till her life time. In these circumstances, this court is of the opinion that, the 1st defendant-MCSPA being a tenant and the 2nd defendant being an unauthorized occupant has to vacate and handover the possession of suit premises to the plaintiff association. In the circumstances, I hold the points No.1 and No.2 in the affirmative and point No.3 partly in the affirmative and point No.4 in the Negative.
48. POINT No.5 : In view of the foregoing discussion and findings on Point No.1 to 4, I proceed to pass the following:
36
SCCH-2 SC.No.874 of 2018
ORDER
The suit of the plaintiff is decreed in part with costs.
Consequently, the defendants are hereby directed to quit, vacate and hand over vacant possession of the schedule premises to the plaintiff within two months time from the date of this order. Failure of which, the plaintiff is at liberty to proceed as per law. Draw decree accordingly.
(Dictated to the stenographer directly on the computer, corrected, signed and pronounced in the open court on this the 20th day of November 2020) (K.UMA ) VI Addl. Judge, Court of Small Causes & ACMM, Bengaluru.
SCHEDULE All that piece and parcel of the office Premises situated in portion of the property bearing No.26, at Asaktha Poshaka Sabha Building, Asaktha Poshaka Sabha Road, Vishveshwarapuram, Bengaluru-560 004, Measuring East to 37 SCCH-2 SC.No.874 of 2018 West:14 Feet, North to South:25 Feet, totally measuring 513 Sq.Ft., with electricity connection consisting of one office premises, and bounded as follows:-
East by : A.P.S. property.
West by : Parvathipuram Road,
North by : A.P.S. property.
South by : A.P.S. property.
(K.UMA )
VI Addl. Small Causes Judge &
ACMM, Bengaluru.
ANNEXURE
List of witnesses examined for plaintiff:
PW.1 : Sri. B.R. Ashok Kumar List of documents marked on behalf of plaintiff :
Ex.P.1 : Letter of rent
Ex.P.2 : Certified copy of Statutory notice
Ex.P.2(a) & : Two Postal receipts
(b)
Ex.P.3 & 4 : Postal track consignment
Ex.P.5 : Unserved postal cover
Ex.P.5(a) : Notice in Ex.P.5
Ex.P.6 : Certified copy of Judgment and
Decree in OS 7422/2012
Ex.P.7 : Certified copy of petition filed in
Ex.case No.1586/2018
Ex.P.8 : Certified copy of Order sheet in
Ex.Case No.1586/2018
38
SCCH-2 SC.No.874 of 2018
List of witnesses examined for defendant:
DW.1 : Sri. Shymalamba N.L List of documents marked on behalf of defendant:
Ex.D.1 : Nele book
Ex.D.2 : Ashaktha Poshaka Sabha book
Ex.D.3 : Protection letter
Ex.D.4 : Certified copy of letter
Ex.D.5 : Certified copy of Complaint
Ex.D.6 : Requisition letter
(K.UMA)
VI Addl. Small Causes Judge &
XXXI ACMM, Bengaluru.