IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF AUGUST, 2019 BEFORE THE HON' BLE MR. JUSTICE S.G. PANDIT C.R.P. No.496/2017 BETWEEN:
SMT. CHANDRAMMA WIFE OF K VENKATESH AGED ABOUT 45 YEARS RESIDING AT NO.1 KHATHA NO.44/2/1 DEVASANDRA VILLAGE KRISHNARAJAPURA HOBLI BENGALURU EAST TALUK.
PRESENTLY KNOWN AS NO.1 DIESEL SHED ROAD JUSTICE BHIMAIAH LAYOUT, SANJAYNAGAR KRISHNARAJAPURA BENGALURU -560036. ... PETITIONER (BY SRI.K T VASUDEVA IYENGAR, ADV.) AND:
1. SMT. INDIRA DAUGHTER OF K RAMAIAH AGED ABOUT 54 YEARS 2. SMT. B GEETHA WIFE OF SHIVASWAMY AGED ABOUT 30 YEARS BOTH ARE RESIDING AT NO.P61/B 3RD CROSS, NAGAPPA BLOCK SRIRAMPURAM BENGALURU- 560021.
... RESPONDENTS (BY SRI.J.D.KASHINATH, ADV. FOR SRI.NAGABHUSHANA, ADV. FOR R1 & R2) THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE JUDGMENT AND DECREE DATED 03.10.2017 PASSED IN SC NO.1738/2016 ON THE FILE OF THE X ADDL. JUDGE, COURT OF SMALL CAUSES, BANGALORE, PARTLY DECREEING THE SUIT FOR EVICTION.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner is before this Court assailing the judgment and decree dated 03.10.2019 in S.C.No.1738/2016 on the file X Addl. Judge, Court of Small Causes at Bengaluru, by which suit for eviction is allowed and the petitioner herein is directed to hand over vacant possession of the plaint schedule property within two months from the date of the order. It is also ordered that the defendant shall pay damages at the rate of Rs.7,000/- per month from 01.08.2016 till possession of the plaint schedule property is actually delivered to the plaintiff.
2. The petitioner herein is the defendant and respondent herein is the plaintiff in S.C.No.1738/2016 filed for eviction of the defendant from the suit schedule property.
3. Brief facts of the case are that the plaintiffs claim that they are the landlords of the suit schedule property. The defendant is a tenant on monthly rental of Rs.7,000/-. The tenancy is month to month basis commencing from first day of each month. The defendant was irregular in paying the rent and as the plaintiffs were in need of the plaint schedule property for their own use, they terminated the tenancy by issuance of notice dated 26.07.2016. The notice sent through courier was duly served and notice sent through RPAD was returned unserved. Even after receipt of notice, the defendant failed to comply with the demand. Hence the plaintiffs filed the suit.
4. On service of suit summons, the defendant appeared and filed written statement. In the written statement the defendant denied the jural relationship of landlord and tenant. The defence of the defendant was that she herself was the owner of the schedule premises and she is in possession as owner of the property and not as a tenant. It is stated that she acquired title over the suit schedule property under Gift Deed dated 18.12.2012, as she needed financial assistance, she approached the plaintiffs and had availed loan of Rs.18,00,000/-. At the time of obtaining the financial assistance, she entered into a memorandum of understanding with the plaintiffs. As per the condition she had to hand over the original documents of the plaint schedule property. Accordingly, she had handed over the original documents and affixed her signature on blank stamp papers. After some time, when the defendant approached the plaintiffs seeking further time to repay the loan, the plaintiffs executed sale deed in her favour. On hearing the same, she filed police complaint against the plaintiffs on 19.05.2016. It is her specific case that she is in possession of the suit schedule premises as owner and not as a tenant. First plaintiff examined herself as PW.1 and got marked six documents. The defendant even though had filed written statement had not adduced any evidence. Based on the material on record the trial Court framed the following points for consideration :-
“1) Whether the plaintiffs prove that there is jural relationship of landlords and tenant between them and defendant?
2) Whether the plaintiffs prove that the defendant has to pay Rs.49,000/- towards arrears of rent?
3) Whether the plaintiffs prove that the tenancy has been terminated by issuing valid notice?
4) Whether the plaintiffs are entitled to suit claim?
5) What order or decree?”
5. The burden of proving all the points were on the plaintiffs. The Court below held point Nos.1, 3 and 4 in favour of the plaintiff. Thus decreed the suit directing the defendant to hand over the vacant possession of the plaint schedule property and to pay damages of Rs.7,000/- from 01.08.2016 till possession of the plaint schedule property is actually handed over to the plaintiffs. Aggrieved by the impugned judgment and decree, the defendant is before this Court in this revision petition.
6. Heard the learned counsel for the petitioner and learned counsel for the respondents. Perused the entire records including the lower Court Records.
7. Learned counsel for the petitioner would submit that the judgment and decree under challenge is wholly perverse and erroneous. The learned trial Judge has failed to consider the defence of the defendant that there is no jural relationship of landlord and tenant and there is no proper finding on the said defence. It is his further contention that when the defendant is claiming ownership over the suit schedule property, the Court below ought to have raised issue regarding title and the plaintiffs have not produced any document pertaining to the title of the plaint schedule property. It is also his contention that the sale deed obtained by the plaintiff by playing fraud and coercion. The defendant had availed loan of Rs.18,00,000/-. Thus he prays for setting aside the impugned judgment and decree of the trial Court.
8. Per contra, learned counsel for the respondents – plaintiffs would submit that the defendant even though filed her written statement has not let in evidence before the trial Court. The plaintiffs have produced the documents including the rent agreement to demonstrate that the defendant was the tenant under the plaintiffs. He also submits that Ex.P.6 is the registered sale deed executed by the defendant in favour of the plaintiffs. It is his submission that on 05.02.2015 the defendant entered into rent agreement agreeing to pay Rs.7,000/- per month, which she has failed to pay. He further submits that the tenancy is terminated in accordance with law and prays for dismissal of the petition.
9. The suit of the plaintiffs is for eviction of defendant from the suit schedule property. It is the case of the plaintiffs that the defendant is the tenant of the schedule property on monthly rent of Rs.7,000/-. It is stated that the defendant has executed a rent agreement dated 05.02.2015. The defendant was irregular in paying the rents and the plaintiffs were in need of schedule premises for their use. It is stated that legal notice dated 26.07.2016 terminating the tenancy was issued through courier as well as through registered post acknowledgement due (‘RPAD’ for short). The notice issued through courier was served, but notice through RPAD was returned unserved.
10. In support of the plaintiffs’ case, the first plaintiff examined herself as P.W.1. The plaintiffs produced and got marked the documents as Ex.P1 to Ex.P6. Ex.P1 is the encumbrance certificate, Ex.P6 is the registered sale deed and Ex.P2 is the rent agreement. On behalf of the defendant, no one was examined nor any documents were marked.
11. The defense of the defendant is that she disputes the jural relationship of landlords and tenant between the plaintiffs and the defendant. It is the contention of the defendant that she is in possession of the suit schedule property as owner of the property. It is stated that she acquired title over the schedule property under the Gift Deed dated 18.12.2012. As she was in need of financial assistance, she approached the plaintiffs and had taken hand loan of Rs.18,00,000/-. At the time of taking hand loan, she has entered into a registered Memorandum of Understanding whereby it was necessary for her to hand over all the documents. The defendant has not produced any material to substantiate her contention that she is in occupation as landlord of the petition schedule property. On the other hand, the plaintiffs have produced Ex.P6, the sale deed executed by the defendant in favour of the plaintiffs which is registered as document No.8300/2014-15 at the Sub-Registrar Office, K.R.Puram on 07.02.2015. The plaintiffs have also produced Ex.P2-Rent Agreement dated 05.02.2015 between the plaintiffs and the defendant for a period of 11 months wherein the defendant has agreed to pay monthly rent of Rs.7,000/. Thus, the plaintiffs have proved that they are the owners of the suit schedule property and the defendant is the tenant under them.
12. The contention of the defendant is that she is the owner and she had taken hand loan of Rs.18,00,000/- from the plaintiffs for which, she had signed the Memorandum of Understanding cannot be believed and no material is produced in support of her contention. Ex.P6 is a registered document. As on the date of passing of the judgment, there was no challenge to the said sale deed. The defendant has not disputed the signatures on those documents. Therefore, I am of the view that the plaintiffs have established the jural relationship of landlord and tenant between them and the defendant.
13. When a contention is taken by the defendant that she is the owner of the petition schedule property and she is in possession of the same in the capacity of owner, it is for her to prove the said contention by producing cogent evidence. On the other hand, the plaintiffs have proved that they are the owners of the suit schedule property and defendant is the tenant of the suit schedule property on the basis of the document at Ex.P6 and Ex.P2. Admittedly, the petitioner/ defendant filed only written statement, but she has not lead any evidence. But the defendant has cross- examined P.W.1. But in the cross-examination, nothing worthwhile is elicited in support of her contention.
14. Admittedly the petitioner executed Ex.P6 sale deed which is a registered document, conveying the suit schedule property in favour of plaintiffs. Thereafter, the defendant/petitioner entered into Ex.P2 rent agreement to continue as tenant on monthly rentals of Rs.7000/-. In view of Ex.P6 the petitioner/defendant cannot contend that she is in occupation of the suit schedule property as owner. On the contrary, the defendant has not entered the witness box and not produced any document in support of her contention. In the facts of the present case the defendant is not entitled to setup title to the property.
15. The plaintiffs terminated the tenancy of the defendant by issuing notice dated 26.07.2016. The notice issued through RPAD is returned unserved whereas the notice sent through courier is served on the defendant. The acknowledgement for having served the notice on defendant through courier is produced and marked as Ex.P5. The suit is filed subsequently on 25.10.2016. Hence, termination of tenancy is proper and is in accordance with law. The defendant, as per Ex.P2/Rent Agreement was liable to pay Rs.7,000/-
p.m. as rent. On termination of tenancy, she was continued to be in possession. Hence, the landlords/plaintiffs became entitled to claim damages, which the trial Court has rightly awarded from 01.08.2016 till the date of actual delivery of possession to the plaintiffs.
16. I find no jurisdictional error or material irregularity in the judgment passed by the trial Court. Accordingly, the petition stands rejected.
Sd/- JUDGE NG*/mpk/-* CT:bms