IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF AUGUST 2019 BEFORE THE HON' BLE MR. JUSTICE S.G. PANDIT CRP No.343/2019 (SC) BETWEEN:
MR.THANGAPAZLAM S/O LATE THANGARAJ AGED ABOUT 57 YEARS RESIDENT OF NO.34 T.P.KUPPAN STREET BANGALORE-560 046.
[BY SRI. FREUD RICHARDSON, ADV. FOR SMT.JAYASREE NARASIMHAN, ADV.) ... PETITIONER AND:
MR.B.SANTHOSH KUMAR S/O LATE G. BALAKRISHNAN AGED ABOUT 47 YEARS RESIDING AT NO.34 3RD ‘DEFENDANT’ CROSS RATHAN SINGH LAYOUT KAVAL BYRASANDRA R.T.NAGAR POST BANGALORE-560 032.
... RESPONDENT THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 18 OF THE SMALL CAUSES COURT ACT, AGAINST THE JUDGMENT AND DECREE DATED 29.06.2019 PASSED IN SC.NO.15275/2018 ON THE FILE OF THE V ADDITIONAL SMALL CAUSES JUDGE, AND XXIV ACMM., BENGALURU, ALLOWING THE SUIT FOR VACANT POSSESSION.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner is before this Court under Section 18 of the Small Causes Courts Act, 1964, assailing the judgment and decree dated 29.06.2019 passed in S.C.No.15275/2018 on the file of the V Additional Small Causes Judge and XXIV ACMM, Bangalore.
2. The respondent/plaintiff filed S.C.No.15275/2018 against the petitioner/defendant praying for judgment and decree to evict the defendant from the schedule property and to hand over vacant possession of the schedule property to the plaintiff.
3. For the sake of convenience the parties are referred to as per their ranking before the Court below.
4. The case of the plaintiff was that he is the land lord of petition schedule property and the defendant is the tenant, who was paying rent of Rs.4,000/-. The defendant defaulted in payment of rent and plaintiff terminated the tenancy by issuing legal notice dated 09.08.2018. Even though notice was served upon the defendant, the defendant neither replied nor vacated the suit schedule property, as such the plaintiff instituted the suit for eviction.
5. On service of summons, the defendant appeared and filed written statement. The defendant denied the suit averments and also denied the jural relationship of landlord and tenant. It is the case of the defendant that he is in possession of the suit schedule property as purchaser of the property from the mother of the plaintiff Smt. Sathyabama. It is stated that the defendant had entered into oral agreement in respect of the suit schedule property with the mother of the plaintiff - Smt. Sathyabama, for sale consideration of a sum of Rs.2,27,000/-. It is stated that the defendant had paid the entire sale consideration of Rs.2,27,000/- by way of cash on 05.03.1995. The mother of the plaintiff Smt. Sathyabama died on 12.10.2008. It is stated that the mother of the plaintiff had put him in possession of the suit schedule property as purchaser and agreement holder. It is stated that the plaintiff’s mother had agreed to execute the registered sale deed in favour of the defendant. Hence, he prayed for dismissal of the suit.
6. The plaintiff examined himself as PW.1 and got marked the documents Ex.P1 to P11. The defendant examined himself as DW.1 and got marked the documents Exs.D1 to D12 in support of his case.
7. The trial Court based on the pleadings, framed the following issue :-
“a. Whether the plaintiff has proved that the tenancy was terminated law full as required under Section 106 of the TP Act ?”
The said issue was answered in the ‘affirmative’ and the defendant was directed to vacate and hand over vacant possession of the suit schedule property to the plaintiff within 30 days. Aggrieved by the same, the defendant is before this Court in this revision petition.
8. Heard the learned counsel for the petitioner/defendant and perused the lower Court records, which were summoned by order dated 31.07.2019.
9. Learned counsel for the petitioner would submit that the judgment of the trial Court is wholly perverse and against the material on record. He submits that the trial Court committed material irregularity in allowing the suit of the plaintiff. He further contends that the trial Court failed to appreciate the contention that landlord and tenant relationship is denied by the defendant. It is his contention that the plaintiff has not produced any documents to substantiate his contention that the defendant is in possession of the suit schedule property as a tenant. It is further stated that no rent receipt nor any other evidence is produced to prove that the defendant is in occupation as tenant. It is his contention that the defendant was in possession of the suit schedule property as purchaser, as the mother of the plaintiff Smt. Sathyabama had entered into oral agreement with the defendant by receiving full sale consideration of Rs.2,27,000/- on 05.03.1995. Thus he prays for allowing the revision petition.
10. Having heard the learned counsel for the petitioner and on perusal of the judgment and decree including the LCR, I am of the view, that the trial Court has not committed any jurisdictional error or material irregularity, while allowing the suit for eviction. The case of the plaintiff is that the respondent is the tenant of the suit schedule property on a monthly rent of Rs.4,000/-. It is the case of the plaintiff that the defendant is a chronic defaulter and tenancy was terminated by issuing legal notice dated 09.08.2018. Admittedly the defendant has not replied to the legal notice dated 09.08.2018. The plaintiff examined himself as PW.1 in support of his case. In his evidence he has clearly stated that the defendant is in occupation of the suit schedule property as tenant. He acquired the property through his mother and after the death of his mother Smt.Sathyabama, katha has been transferred in his name. In his cross-examination he has specifically stated that the defendant was a tenant in respect of the suit schedule property under his mother from 1995 and in his evidence, he has stated that his mother had handed over the original documents relating to the property to the defendant for drafting the rental agreement. He has denied the suggestion that his mother had handed over the documents and possession of the suit schedule property on receiving the entire sale consideration of Rs.2,27,000/-. He has also stated in his evidence that he collected rent of Rs.4,000/- per month from the defendant till March 2018. The defendant examined himself as DW.1 in support of his case. It is his specific contention that the mother of the plaintiff had entered into oral agreement by receiving the entire sale consideration of Rs.2,27,000/- in the year 1995 and handed over the original documents to him. The mother of the plaintiff Smt. Sathyabama died in the year 2008. The defendant, who claims that he had entered into oral agreement of the suit schedule property for sale consideration of Rs.2,27,000/- had not initiated any proceedings for getting the sale deed executed by the mother of the plaintiff during the life time of plaintiff’s mother. No independent witness is examined in support of his contention that the mother of the plaintiff had entered into oral agreement. No piece of document is produced to substantiate the defendant’s contention that he had paid Rs.2,27,000/- on 05.03.1995 to the plaintiff’s mother. It is stated that the defendant had paid the sale consideration by cash, but neither bank statement nor any witness is produced to corroborate the statement. The contention of the defendant that he is in possession of the suit schedule property as per the oral agreement or that he is the purchaser of the suit schedule property cannot be believed. In the facts and circumstances of the present case, the defendant has kept quiet without seeking for execution of registered sale deed either from the mother of the plaintiff during her life time or from the plaintiff. But it is an admitted fact that the defendant is in possession of suit schedule property prior to 1995. The plaintiff states that he has collected rent till 2012, which is not seriously disputed nor contrary is elicited in cross examination. Hence, the question of producing rent receipt would not arise.
As the defendant has failed to prove that he is in possession as purchaser and as he has failed to remotely prove that he has entered into oral agreement with the mother of the plaintiff, the trial Court is justified in allowing the suit directing eviction of the defendant/petitioner herein. Section-111 of the Transfer of Property Act, 1882. (for short ‘the Act’) deals with determination of lease. Clause (e) and (f) of Section 111 of the Act, provides for determination of lease by surrender in case the lessee yields up his interest under the lease to the lessor by mutual agreement between them and lease could be determined by implied surrender. The defendant has failed to prove the oral agreement and when he has failed to prove oral agreement, the question of surrender of tenancy at that point would not arise.
11. I find no material or jurisdictional error to interfere with the impugned judgment and decree dated 29.06.2019 passed in S.C.No.15275/2018 on the file of V Additional Small Causes Judge, and XXIV ACMM, Bengaluru. Accordingly the petition is rejected.
12. Learned counsel for the petitioner prays for some time to vacate the premises. The trial Court had granted 30 days time vide impugned order dated 29.06.2019 to vacate its premises. Since the said time has expired, looking into the facts, another 30 days time could be granted to the petitioner herein to vacate and hand over vacant possession of the suit schedule property. Accordingly 30 days time is granted from today to the petitioner herein to vacate and hand over vacant possession of the suit schedule property.
Sd/- JUDGE NG* CT:bms