IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR.JUSTICE B. VEERAPPA WRIT PETITION NOS.50841 AND 50842 OF 2014 (GM-CPC) BETWEEN:
Shri. B.N. Thimma Reddy S/o Late Hanumantha Reddy, Aged about 65 years, Residing at: Doddakurugodu Village, Vidhurashwatha Mandal, Gowribidanur Taluk, Chikkaballapura District-561 213.
…PETITIONER (By Sri. Mallikarjun Reddy K.S., Advocate) AND:
Smt. Subadramma W/o Late C. Hanumantha Chari, Aged about 68 years, Residing at: No.E-597, Slum Area, Azad Nagar, Near A.J.C. Grounds, Gowribidanur-561 208, Chikkaballapura Dsitrict.
... RESPONDENT (By Sri. Venkatesh N., Advocate for Caveator/Respondent) These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India praying to quash the order dated 26.04.2013 passed on I.A.No.1 in O.S.No.405/2011 vide Annexure-A and the order dated 17.09.2014 passed on I.A.No.6 in O.S.No.405/2011 passed by the Principal Civil Judge & JMFC, at Gowribidanur vide Annexure-B.
These Writ Petitions coming on for Preliminary Hearing ‘B’ Group, this day, the court made the following:
O R D E R The petitioner has filed these two writ petitions against the order passed in I.A.No.1 on 26.04.2013 and I.A.No.6 on 17.09.2014 made in O.S.No.405/2011 on the file of Prl. Civil Judge, Gowribidanur, allowing the applications filed by the plaintiff directing the defendants to pay arrears of rent of Rs.31,000/- from 01.05.2009 to 30.11.2011 and Rs.30,000/- from 01.12.2011 to 30.06.2014.
2. The respondent who is plaintiff before the trial Court filed suit for ejectment in O.S.No.405/2011 in respect of the suit schedule property seeking to direct the defendant to quit and deliver vacant, peaceful possession of suit schedule property to the plaintiff and to pay up to date rent to the plaintiff till the date of handing over of possession at the rate of Rs.1,000/- per month, contending that she is the owner in possession and enjoyment of the suit schedule property. The defendant is the tenant of a residential house property measuring East to West 16 Sq. meters and North to South 7 Sq. meters, bearing Janjer No.74, situated at Doddakurugodu Village, Gowribidanur Taluk and she has become owner by virtue of ‘pavathi varasu’, after the death of her husband. It is further contended that the defendant was indicated as a tenant by the plaintiff in respect of the suit schedule property on payment of monthly rent of Rs.500/-, on the basis of oral agreement and the defendant was paying the monthly rent to the plaintiff since 1996 regularly, till 30.06.2005. Thereafter, rent was enhanced from Rs.500/- to Rs.1,000/- from 01.07.2005. The defendant was paying rent regularly till 01.05.2009 and after the death of plaintiff’s husband, he has failed to pay the rent. Therefore, the plaintiff issued a legal notice on 08.11.2011, for which the defendant did not reply. Therefore, suit was filed for the relief sought for.
3. The defendant has filed written statement and denied the plaint averments and specifically contended that the suit filed by the plaintiff is not maintainable and the legal notice issued was suitably replied and was not in accordance with law. It was further contended that there was no termination of tenancy in respect of suit schedule property and the defendant is in peaceful possession and enjoyment of the suit schedule property as its absolute owner for more than 20 years to the knowledge of owner of property Sri. Hanumantharaya, since January 1992, Sankranthi day. It was further contended that the defendant is in adverse title and possession of the suit schedule property for more than 20 years and he has perfected his title by the law of adverse possession and the very suit filed by the plaintiff is not maintainable. There is no jural relationship as landlord and tenant between plaintiff and defendant and hence, sought for dismissal of the suit.
4. When the matter was posted for evidence, the two applications filed along with plaint were taken up for consideration of which one was for directing the defendant to pay a sum of Rs.31,000/- towards arrears of rent and another one to direct the defendant to pay monthly rent as agreed by defendant. The said applications were not opposed by filing any objections. But, the defendant has filed written arguments to the applications filed by the plaintiff and specifically contended that in the written arguments the defendant has not admitted the relationship of landlord and tenant and no documents were produced by the plaintiff to substantiate that there is a relationship of landlord and tenant between plaintiff and defendant. Since the relationship is in dispute, the question of payment of arrears of rent does not arise and the defendant is claiming ownership of the property in question. Therefore, the applications are not maintainable.
5. The trial Court, considering the applications and written arguments, has allowed both the applications. Hence, the present writ petitions are filed by the petitioner/defendant.
6. I have heard learned counsel for both the parties to the lis.
7. Sri. Mallikarjun Reddy K.S., learned counsel for the petitioner contended that the impugned orders passed by the Court below directing the petitioner/defendant to pay arrears of rent from 2011 till 2014 are contrary to material on record. Learned counsel further contended that when the defendant has denied the relationship of landlord and tenant between plaintiff and defendant, unless and until relationship is proved, the plaintiff is not entitled for any arrears. Learned counsel further contended that the plaintiff is not the owner and defendant is the owner of the property. Admittedly, the plaintiff has not produced any material documents to show the relationship of landlord and tenant i.e., rent receipt or rent agreement between the parties. In the absence of same, he cannot file suit for ejectment against the defendant, who is the owner of suit schedule property. Therefore, he sought to quash the impugned orders passed by the Court below by allowing the writ petitions.
8. Per contra, Sri. Venkatesh N., learned counsel for respondent has sought to justify the impugned orders and contended that after filing written statement and after completion of evidence of plaintiff, the applications came to be filed. The trial Court recorded a finding that the defendant has not filed objections to I.As nor addressed his arguments, except filing written arguments denying the landlord and tenant relationship. Therefore, the trial Court was justified in allowing the applications. Therefore, he sought to dismiss the writ petitions.
9. Having heard learned counsel for the parties, the only point that arises for consideration is, “whether the court below is justified in passing the impugned orders directing the defendant to pay arrears of rent from 01.05.2009 to 30.11.2011 and from 01.12.2011 to 30.06.2014, in the facts and circumstances of the present case?”
10. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the material on record carefully.
11. It is not in dispute that the plaintiff has filed a suit claiming that she is the owner in possession of the suit schedule property through her husband as ‘pavathi varasu’ and she has leased the suit schedule property in favour of defendant on 01.07.1996 for a monthly rent of Rs.500/- on the basis of oral agreement. Subsequently, the rent was enhanced to Rs.1,000/- and the defendant did not pay the amount from 01.05.2009 onwards. Therefore, a legal notice was issued and the same is disputed by the defendant by filing written statement contending that the defendant is the owner of the property in question and the question of plaintiff indicating the defendant as tenant would not arise. The suit filed by the plaintiff is not maintainable. When the title itself is in dispute, question of eviction would not arise and payment of rents also would not arise.
12. The averments made in the pleadings and the written statement is clear that the plaintiff is claiming ownership on the basis of ‘pavathi varasu’ through her husband. The defendant is claiming his title on the basis of adverse possession and denied the very jural relationship of the plaintiff and defendant as landlord and tenant. Unless and until the relationship of the parties and title is proved, question of payment of arrears of rent would not arise.
13. It is for the plaintiff to prove that she is the owner and the defendant is the tenant, which can be adjudicated only after full fledged trial between the parties. Admittedly, except oral agreement as alleged, the plaintiff has not produced any lease deed or rent receipts issued to the defendant from 1996 till 01.05.2009 as alleged in the plaint.
14. In the absence of any material documents to prove that there is a jural relationship of landlord and tenant, the trial Court is not justified in directing the defendant to pay arrears of rent. When the defendant himself has set up his title and disputed the title of the plaintiff, it is for the parties to establish their title and it is for the trial Court to consider oral and documentary evidence on record to be produced by the parties and decide the matter accordingly. In the absence of any proof, the impugned orders passed by the trial Court only on the ground that the defendant has not filed objections to I.As and not argued except written arguments, would not be a ground to direct the defendant to pay arrears of rent, when the defendant has filed written arguments to IAs and also the written statement disputing the ownership of the plaintiff. The impugned orders cannot be sustained.
15. For the reasons stated above, the writ petitions are allowed.
The impugned orders dated 26.04.2013 and 17.09.2014 on I.A.Nos.1 and 6 respectively, made in O.S.No.405/2011 on the file of Prl. Civil Judge, Gowribidanur are hereby quashed with liberty to the respondent/plaintiff to prove the relationship of landlord and tenant between plaintiff and defendant, in accordance with law.
The trial Court shall expedite the suit subject to co-operation of the parties to the lis.
SD/- JUDGE BMC