IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No.153 OF 2016 BETWEEN P.Damodara Raju, S/o. P.Gunnaiah Raju, Aged about 56 years, No.2 Krishna Nilaya, 1st “A” Cross, Old UCO Bank Road, Ramamurthy Nagar, Bengaluru-560016.
(By Sri. Hedge V.S., Advocate) AND Smt. R.S.Parameshwari W/o. Late Sarvanan, Age 56 years, R/at No.18, Venkatadri Nilaya, Balaji Street, 2nd Cross, Ramamurthy Nagar, Bengaluru-560016.
(By Sri. Prakash T Hebbar, Advocate) …Appellant …Respondent This RFA is filed under Section 96 of CPC against the judgment and decree dated 26.10.2015 passed in O.S.No.2590/2012 on the file of the XXX Additional City Civil Judge, Bengaluru, decreeing the suit for vacant possession.
This RFA coming on for orders this day, the court delivered the following:
JUDGMENT The defendant in O.S.2590/2012 on the file of City Civil Judge, Bengaluru, is the appellant. The respondent being the plaintiff in the suit sought ejectment of the defendant from property bearing house list katha No. 1024, Premises No.1 in Sy.No.41 of Banaswadi Village, K.R.Puram Hobli, Bengaluru East Taluk, measuring East-West 40’ and North-South 48.5’ (referred to as ‘plaint schedule property’ hereafter).
2. The pleading put forward by the plaintiff is that she being the absolute owner of the plaint schedule property leased it to the defendant in the year 1990 on an oral lease between them. The defendant is running a business in the hardware items under the name and style of ‘R.R. Steels Agency’. It was a monthly tenancy on a rent of Rs.3,000/-
p.m. There was periodical enhancement in the rent. On the date of the suit, the defendant was paying Rs.9,900/- per month. After the death of the plaintiff’s husband, she found it difficult to lead life and wanted to have a business set up for her son and therefore requested the defendant to vacate the plaint schedule property. The defendant did not heed to her request. She approached a free legal aid service centre called “Shree Sadguru Seva Samithi” which contacted the District Legal Services Authority. On 27.2.2006, the District Legal Services Authority addressed a letter to the defendant calling upon him to get the matter settled before the Lok Adalath. Since defendant did not respond to this, the plaintiff got issued legal notices to the defendant on 22.10.2006, 29.12.2006 and 10.5.2007 calling upon him to vacate and hand over the vacant possession of the plaint schedule property. Defendant did not oblige and then again on 26.12.2011 she issued one more notice to the defendant terminating the tenancy. The defendant received the notice and did not vacate. Hence, she instituted the suit.
3. The defendant not only denies the ownership of the plaintiff over the plaint schedule property but also her assertion that she leased this plaint schedule property to him orally in the year 1990. He has contended that there does not exist the relationship of landlord and tenant. According to him, he took over the possession of the plaint schedule property in the year 1990. Investing huge amount of money, he constructed a shop premises, and obtained power supply and started doing business in hardware items. The vacant possession adjacent to the shop is also in his possession. His specific contention is that he has perfected right, title and interest over the plaint schedule property by adverse possession and as such he cannot be evicted.
4. The trial court after appreciating the oral evidence of the witnesses and documentary evidence produced by the plaintiff, decreed the suit directing the defendant to deliver vacant possession of the plaint schedule property to the plaintiff within one month from the date of judgment. Aggrieved by this judgment, the defendant has preferred this appeal.
5. The trial court has recorded the following findings:-
5.1. The plaintiff has claimed to be the absolute owner of the plaint schedule property and it is denied by the defendant. In order to establish the ownership over the plaint schedule property, the plaintiff has produced the documents Exs.P1 and P2, the registered sale deed and tax paid receipt respectively. The sale deed shows she is the absolute owner. Defendant has failed to prove his ownership. He has not produced any document in proof of his ownership, rather he claims adverse possession. Even this plea of adverse possession is not available, for the defendant does not state as to how and from what date his possession became adverse to the interest of the plaintiff.
5.2. The plaintiff has been able to prove that the defendant occupied the plaint schedule property in the year 1990 as a tenant. The lease was oral. Therefore, section 106 of the Transfer of Property Act (hereafter for short referred to as ‘the Act’) can be applied to hold that tenancy is from month to month. Though the plaintiff has not produced any document to establish that the defendant is her tenant, the defendant has given an answer in the cross- examination that he was paying rent of Rs.3,000/- as rent to the plaintiff. This admission itself is sufficient to hold that defendant is a tenant under the plaintiff.
5.3. The plaintiff validly terminated the tenancy by issuing quit notice as per Ex.P4. Exs. P5 and P6 are the postal acknowledgements which prove that the defendant received the notice. The contention of the defendant that there is no service of notice cannot be believed. When the address written on the postal cover is correct, a presumption arises as regards its due service on the defendant. Therefore, the tenancy was duly terminated according to law, the plaintiff will be entitled to a decree for ejection of the defendant.
6. The learned counsel for the appellant/defendant assails the findings of the trial court on the following grounds:-
(i) The plaintiff claims to be the landlord of the plaint schedule property and states that there was oral lease between her and the defendant. The plaint does not state as to on what date the tenancy commenced. She has also answered in the cross-examination that one Subbaraju and Yashodamma were present at the time when she leased out the plaint schedule property to the defendant. These two persons are not examined. The plaintiff has also not produced the rent receipt to establish that defendant is her tenant. Therefore, there is no proof of creation of tenancy in accordance with sections 105 and 106 of the Act. Whenever oral agreement is pleaded, it must be proved or otherwise the relationship of tenant and landlord will not get established. In a suit for ejectment of a tenant, the existence of landlord and tenant relationship is a must. On this point he has cited the judgments of the Supreme Court in the case of Tribhuvanashankar vs Amrutlal [(2014) 2 SCC 788] and Brij Mohan and Others vs Sugra Begum and Others [(1990) 4 SCC 147].
(ii) The trial court has committed an error relying upon a stray answer given by DW1 in the cross-examination in order to arrive at a conclusion that defendant is a tenant of the plaintiff. It is settled principle that stray admission or a sentence cannot be given importance for drawing inferences. The trial court should have held that the plaintiff has not proved that the defendant is not the tenant of the plaintiff. On the principle that stray answer has no evidentiary significance, he has relied on the judgments of the Supreme Court in the cases of D.N.Jeevaraju and Another vs D.Sudhakar and Others [(2010) 14 SCC 69] and Saygo Bai vs Chueeru Bajrangi [(2010) 13 SCC 762]; and of this court in the case of Dhananjaya Visweswara Hegde vs Jatti Kuppa Naika and Others [IlR 2001 KAR 1515] and M/s Mahesh Centre and Another vs People Charity Fund by its Trustees [ILR 2007 KAR 4344].
(iii) There is no proof for terminating the tenancy by issuance of notice. The plaintiff has produced copy of the notice and postal acknowledgments as per Exs. P4 to P6. The defendant has denied to have received the notice. He has also denied the signature found on the postal acknowledgement. Therefore, there is no proof that the notice was served on the defendant. Especially when the defendant denies his signature on the postal acknowledgement, the burden was on the plaintiff to have proved that the signature found on the postal acknowledgement is that of the defendant only. The trial court could have at least compared the disputed signature with the admitted signature according to section 73 of the Indian Evidence Act. When this kind of evidence is not forthcoming, the trial court should have held that there was no valid termination of tenancy and consequently it should have dismissed the suit.
7. Refuting the above arguments, the learned counsel for the plaintiff/respondent argued that lease can be created through oral agreement. There is no bar for that. When the defendant clearly admitted in the cross-examination that he was paying Rs.3,000/- rent per month to the plaintiff, further proof to establish the lease is not necessary. The cross-examination of DW1 is so short. The admission that DW1 has given is not a stray answer. The trial court has relied upon this admission taking overall circumstances into consideration. Therefore, the trial court is justified in coming to conclusion that the defendant is plaintiff’s tenant.
7.1. The next point he argued was when the relationship of landlord and tenant was established, the tenant cannot dispute the ownership of the plaintiff. He is estopped from taking such a contention. In this regard, he has referred to the judgment of the Supreme Court in the case of Atyam Veerraju and Others vs Pechetti Venkanna and Others [AIR 1966 SC 629] and of the Madhya Pradesh High Court in the case of Gangaram vs The Municipal Council [AIR 1992 MP 303]. The defendant has also set up adverse possession but his written statement lacks particulars as to when his possession became hostile to the right, title and interest of the plaintiff. When the defendant does not admit the plaintiff to be the true owner and moreover he sets up title in himself, he cannot claim adverse possession.
7.2. There was due service of notice on the defendant.
Exs.P4, P5 and P6 provide proof for this. It is not the case of the defendant that the address written on the postal cover is incorrect. Even now this court can compare the signature of the disputed signature with his admitted signature found in the written statement as the first appellate Court is a fact finding body. There is ample evidence which shows that quit notices were served on the defendant and tenancy was terminated. If according to the defendant, plaintiff is not his landlord he could have replied to the legal notice. Keeping silence after receiving notice is a matter that has to be considered for drawing appropriate inferences as regards relationship of landlord and tenant and the termination of tenancy. It is his argument that the trial court has considered all the aspects. There is proper appreciation of evidence and the appeal should be dismissed.
8. I have considered the above points of arguments which give rise to the following points for discussion : -
(i) Has the trial court rightly come to conclusion that there is relationship of landlord and tenant between the plaintiff and the defendant?
(ii) Whether the trial court’s finding that there was valid termination of tenancy is correct?
(i) What order?
Point No. (i):-
9. As has been rightly argued by the appellant’s counsel, the existence of relationship of landlord and tenant between the plaintiff and the defendant in a suit for ejectment is a sine qua non. If the relationship is not established, suit deserves dismissal. This is one of the principles found in the judgment of the Supreme Court in Tribhuvanashankar (supra).
10. Here the defendant disputes relationship on two grounds, firstly that he denied the ownership of the plaintiff in respect of plaint schedule property and secondly that the oral lease has not been proved. In a suit for ejectment, generally questions as regards title of the plaintiff does not arise, but incidentally it can be looked into. In this case the plaintiff has produced two documents Exs.P1 and P2 to prove her title. Ex.P1 is the sale deed and Ex.P2 is the tax paid receipt. The sale deed shows that the plaintiff purchased the plaint schedule property from one C.Rajappa on 24.4.1989. Ex.P2 is the tax paid receipt standing in the name of the plaintiff. To controvert the plaintiff’s title the defendant has not produced any document. On one breath he claims ownership and on the other he claims adverse possession. The evidence on record clearly establishes the plaintiff’s title. As has been rightly held by the trial court the defendant has not proved the ingredients required for proving adverse possession, rather his one answer in the cross-examination dislodges his contention that he has perfected his title over the plant schedule property by adverse possession. His answer is that the plaintiff’s husband allowed him to construct a building in the plaint schedule property and thus he took over its possession. This answer is sufficient to infer that the defendant cannot assert adverse possession.
11. If the evidence on record is re-appreciated to find out whether relationship of landlord and tenant is proved between the plaintiff and the defendant, it can be very well said that the trial court has rightly appreciated the evidence to hold the existence of such relationship. The plaintiff states that the agreement between her and the defendant was oral. There is no bar for creation of oral lease in view of section 107 of the Act. But, as has been argued by the appellant’s counsel, coming into being of oral lease should also be proved; the learned counsel has cited the judgment of the Supreme Court in the case of Brij Mohan (supra) in this context. In this judgment, it is held as below : -
“20…………….We agree with the contention of the Learned counsel for the appellants to the extent that there is no requirement of law that an agreement or contract of sale of immovable property should only be in writing. However, in a case where the plaintiffs come forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden lies on the plaintiffs to prove that there was consensus ad- idem between the parties for a concluded oral agreement for sale of immovable property. Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiffs that vital and fundamental terms for sale of immovable property were concluded between the parties orally and a written agreement if any to be executed subsequently would only be a formal agreement incorporating such terms which had already been settled and concluded in the oral agreement”.
12. According to the plaintiff, one Subbaraju and Yashodamma were present at the time when an oral agreement took place between her and the defendant. The argument of appellant’s counsel is that without examining the said two persons or at least one of them, it is not possible to hold that oral agreement has been proved, and he also argued that the trial court should not have held the defendant to be a tenant of plaintiff on stray sentence found in cross examination of DW1.
13. In regard to this point of argument, it has to be stated that the plaintiff could have examined either Subbaraju or Yashodhamma. Can this be adversely held against plaintiff if there is other evidence in the form of admission by DW1? Is this a stray admission? is also another question.
14. The appellant’s counsel has placed reliance on some authorities in this context. In the case of Saygo Bai (supra) it is held that the court must read the whole evidence and that one stray admission cannot be read in isolation with other evidence.
15. In the case of Dhananjay Visweswara Hegde (supra), this court has observed that one answer of Jattikuppa Naika that he was running a tea stall was nothing but a stray answer which did not affect his other part of evidence that he was agricultural labourer. So also in another decision of this court in M/s. Mahesh Centre (supra), it is held that a stray admission or statement of witness in his deposition should not be the criteria or basis to arrive at a conclusion, and it is the duty of the court to consider the evidence in a case as a whole and its finding should depend upon the cumulative effect of entire oral and documentary evidence.
16. The judgment of the Supreme Court in D.N.Jeevaraju throws some more light on this aspect. It is held that if a statement is found to be an inadvertent error or have been made unintentionally, it is nothing but a stray sentence. In the light of these principles, if it is further analyzed, it can be very well said that a stray answer has no value, but what is of utmost importance is that a clear conclusion must be drawn whether a sentence or statement can be considered as ‘stray’. It may be possible that a witness whilst under cross-examination may falter owing to failure to grasp the question posed to him or confusion in understanding a tricky question, the answer to which may possibly be construed disadvantageous to him. Therefore in a situation like this, before drawing any inference, the whole evidence must be scrutinised to examine whether it is possible to separate an answer from the other consistent answers or statements; the tenor of answers must be seen. If it is found that on a particular issue or aspect, a witness has given answers consistently and it is improbable to expect an answer inconsistent with other part of evidence, that particular statement or answer can be considered as stray sentence or statement or admission, otherwise not. It is not every answer that goes against a witness can be considered as stray admission; if this interpretation is given, the purpose of cross examination fails.
17. In this case, cross examination of DW1 is short.
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18. If the entire cross examination is seen, it is not possible to say that he was under any confusion to understand the question as to how much rent he was giving at the inception of tenancy and when he stopped paying the rent. It is his clear answer that he was paying rent of Rs. 3,000/- earlier and he stopped paying the rent when another building was constructed. This is not a stray statement in the cross examination. The inference that can be drawn is that he was paying rent at the inception. If after construction of annex building, he stopped paying rent, he should prove whether there had come into existence any other transaction between him and the plaintiff. Rather he set up adverse possession which is unacceptable and has no proof. Therefore the plaintiff has proved that defendant is her tenant. Non-examination of a person who was present at the time when oral lease came into existence is not fatal to plaintiff’s case. The trial court is justified in coming to this conclusion. Point No.(i) is answered in affirmative.
Point No.(ii) 19. The plaint may not indicate the date of commencement of lease as argued by the appellant’s counsel. It may be due to inartistic drafting; it does not affect the plaintiff’s case. Since the lease is oral, 15 days advance notice is sufficient for termination. The trial court has rightly come to conclusion about termination of lease. Ex.P3 is the copy of legal notice. Ex.P4 is postal receipt and Ex.P5 and Ex.P6 are postal acknowledgements. Notice was sent to defendant both to his business premises i.e., plaint schedule property and residential address. Ex.P5 shows notice being received by the defendant himself and Ex.P6 shows the receipt of notice by one D.Manjula. Vehement argument is that notice was not served at all and the signature found on Ex.P5 is not the signature of the defendant. It was argued that at least the court should have given a finding that the disputed signature was compared with admitted signature in accordance with section 73 of the Indian Evidence Act. This argument is untenable. Now I have compared the signature found on Ex.P5 with signature of defendant found on the written statement. To the naked eye the signatures appear to be of defendant himself. The whole argument of appellant’s counsel that there was no service of notice is untenable. Evidence shows valid termination of tenancy. Hence point No. (ii) is also answered is affirmative.
20. From the foregoing discussion, I come to conclusion that the trial court has rightly arrived at a conclusion to decree the suit. The findings of the trial court are unassailable. I concur with findings given by the trial court. Hence, appeal deserves dismissal. Accordingly, appeal is dismissed with costs.
Sd/- JUDGE ckl/