IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF APRIL 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.713/2015 (RES) BETWEEN:
SMT.ZIBUNNISSA W/O LATE SYED AHMED AGED ABOUT 83 YEARS R/AT 18TH WARD, 8TH BLOCK BAGEPALLI TOWN BAGEPALLI TALUK-561 207 KARNATAKA REP BY HER SPA HOLDER & SON SYED AMEER PASHA S/O. LATE SYED AHMED AGED ABOUT 51 YEARS R/AT 18TH WARD, 8TH BLOCK BAGEPALLI TOWN BAGEPALLI TALUK- 561 207 KARNATAKA … APPELLANT (BY SRI N.J.RAMESH, ADVOCATE) AND:
SMT.SHAKEELA BEGUM W/O. MANJUR AHMED AGED ABOUT 37 YEARS R/AT 18TH WARD, 8TH BLOCK BAGEPALLI TOWN BAGEPALLI TALUK-561 207 KARNATAKA … RESPONDENT (BY SRI VISHWANATH.R.HEGDE, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 02.03.2015 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE & C.J.M., CHICKBALLAPUR IN R.A.NO.38/2014 AND ALSO THE JUDGMENT AND DECREE DATED 10.02.2011 PASSED BY CIVIL JUDGE, BAGEPALLI IN O.S.NO.33/2009.
THIS RSA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This plaintiff’s second appeal arises out of judgment and decree dated 02.03.2015 in RA No.38/2014 passed by Principal Senior Civil Judge & C.J.M., Chickballapur. By the impugned judgment and decree, the First Appellate Court dismissed the appeal of the plaintiff and confirmed the judgment and decree of the trial Court.
2. The trial Court by judgment and decree dated 10.02.2011 in O.S.No.33/2009 impugned in the First Appellate Court had dismissed the suit of the plaintiff for ejectment.
3. Plaintiff filed O.S.No.33/2009 for ejectment and recovery of arrears of rent and damages in lieu of rental amount of Rs.40,000/-.
4. Subject matter of the suit was house bearing Assessment No.1545 measuring 41 x 21 square feet situated in Bagepalli.
5. Plaintiff’s case in brief is as follows:
Her husband purchased suit property under registered sale deed dated 03.06.1965. He died about 30 years back. She is owner of the property and let out the same to the defendant on monthly rent of Rs.2,000/-. Tenancy commenced from 25.07.2006. The defendant was irregular in payment of rent. She only paid Rs.12,000/- in July 2007 and Rs.4,000/- in August 2007. She got issued notice on 28.06.2008 terminating tenancy with effect from 24.07.2008 and calling upon defendant to handover the possession and pay arrears of rent. Defendant did not comply that.
6. Case of the defendant was as follows:
Ownership of plaintiff was denied. Plaintiff and her husband have in all seven children. Out of them, plaintiff’s third son Syed Ameer Pasha has let out property to her. Said Syed Ameer Pasha entered into agreement of sale dated 09.11.2006 with her for consideration of Rs.3,10,000/- and received Rs.50,000/- as advance money. Without executing agreement of sale, he has set up the plaintiff to file the suit.
7. Based on such pleadings, the trial Court framed the following issues:
1) Whether the plaintiff proves that, she is the absolute owner of the suit schedule property?
2) Whether the plaintiff proves that, there exists landlord and tenant relationship between herself and the defendant?
3) Whether the plaintiff proves that, the defendant is due towards arrears of rent?
4) Whether the plaintiff proves that, she is in bonafide requirement of the suit schedule property?
5) Whether the defendant proves that, she has taken the suit schedule property on lease for a monthly rent of Rs.800/- from the third son of plaintiff who is the absolute owner of the same having acquired under an oral partition?
6) Whether the defendant proves that, Syed Ameer has agreed to sell the suit schedule property in her favour for Rs.3,10,000/- and accordingly received Rs.50,000/- as part consideration?
7) Whether the defendant proves that, she is continuing in possession of the suit schedule property under the agreement of sale?
8) Whether the plaintiff is entitled the relief’s as prayed for?
9) What order or decree?
8. Parties adduced evidence. Plaintiff’s third son Syed Ameer Pasha who was her power of attorney holder was examined as PW.1 and one witness was examined as PW.2. Ex.P1 to Ex.P10 were marked. Defendant got herself examined as DW.1 and got marked alleged agreement of sale as Ex.D.1 9. The trial Court after hearing the parties dismissed the suit on the following grounds:
i. Plaintiff’s husband has left behind him 7 children and therefore, plaintiff is not the absolute owner;
ii. Plaintiff did not enter witness box. Therefore, adverse inference has to be drawn against her and jural relationship is not proved;
iii. Plaintiff has suppressed her earlier notices referred to in Ex.P8, allegedly sent to the defendant;
iv. There is arithmetical error in calculating the rent;
v. PW.2 is not witness to lease agreement between plaintiff and defendant;
vi. Agreement of sale set up by defendant is not proved by examining the attesting witnesses and that signature of alleged executant was denied;
10. Aggrieved by the said judgment and decree, plaintiff preferred RA No.38/2014 before the First Appellate Court. The First Appellate Court verbatim concurred with the reasoning and findings of the trial Court and dismissed the appeal. Thus the plaintiff is before this Court.
11. This Court admitted the appeal to consider the following substantial questions of law:
1. Were the Courts below justified in dismissing the suit for ejectment only on the ground that the ownership of the suit schedule property is not proved by the plaintiff ignoring the material evidence of P.Ws.1 and 2 and documentary evidence of Exs.P.1 to 8?
2. Were the Courts below justified in dismissing the suit when the defendant has filed the written statement admitting the ownership of the plaintiff and when there is no dispute with regard to relationship of landlord and tenant?
3. Were the Courts below justified in dismissing the suit of the plaintiff in the facts and circumstances of the present case?
12. Sri Ramesh N.J., learned Counsel for the appellant seeks to assail the impugned judgment and decrees of the Courts below on the following grounds:
(i) Defendant did not dispute that plaintiff’s husband was owner of the property;
(ii) Defendant though admitted service of quit notice–Ex.P8 did not issue any reply denying jural relationship and arrears of rent;
(iii) Defendant did not prefer any appeal or cross objection against rejection of her claim that PW.1 had executed agreement of sale Ex.D1, thereby her contention that PW.1 was in charge of the property and he dealt with her fails;
(iv) One of the co-owner can maintain suit for ejectment;
(v) If trial Court found any arithmetical error in calculating the arrears, it should have moulded the relief instead of dismissing the claim of arrears of rent; and (vi) PW.1 was none other than son of plaintiff and having regard to her age and ailment, she examined him and there was no bar for examining the power of attorney holder.
13. In support of his contention, he relied upon the following judgments:
1) Biswajit Sukul v. Deo Chand Sarda [AIR 2018 SC 5006] 2) Smt.Nagi Yane Devaki Kom vs. Harichandra Thaku Tandel [2017 (4) KCCR 3642] 14. Per contra, Sri Vishwanath.R.Hegde, learned Counsel for respondent seeks to support the impugned judgment and decrees of the Courts below on the following grounds:
(i) Plaintiff did not adduce any evidence of she leasing out property to defendant;
(ii) Admittedly, there were other heirs of Syed Ahmed and they were not parties to the said suit;
(iii) PW.1 nowhere in his evidence stated that he is personally acquainted with facts of the case. Therefore, he was not competent to give evidence.
(iv) Terms of lease and agreement of lease are within the personal knowledge of the plaintiff. Therefore, she ought to have entered the witness box, for her failure to do so the Courts below have rightly drawn adverse inference;
(v) Plaintiff has suppressed earlier notices referred to in Ex.P8. Therefore, finding of the Courts below regarding termination of tenancy and arrears of rent are sound and sustainable;
(vi) Findings of the Courts below regarding jural relationship are also sound and sustainable;
(vii) The aforesaid facts and circumstances, being the question of facts do not warrant interference in the second appeal;
15. In support of his contention, he seeks reliance on the following judgment:
1) S.Kesari Hanuman Goud v. Anjum Jehan and Ors.
[2013 AIR SCW 3561] Reg: Jural relationship:
16. Defendant did not dispute that the property originally belonged to plaintiff’s husband Syed Ahmed and he had purchased the same under Ex.P2 registered sale deed dated 03.06.1965. Defendant did not dispute that plaintiff’s husband died 30 years back. She did not dispute that she is tenant of the suit schedule property. According to defendant, plaintiff’s third son Syed Ameer Pasha was her lessor and he later entered into an agreement of sale as per Ex.D1 in her favour and failed to execute the agreement.
17. The trial Court rejected the claim of defendant regarding execution of agreement Ex.D1 by PW.1. She did not question that finding before the First Appellate Court by way of cross appeal or cross objection. Therefore, her case that PW.1 has executed agreement of sale in respect of suit schedule property fails. Thereby, she continues to be tenant of suit property.
18. When she admits that she was tenant of the suit schedule property, then it was for her to prove who was her lessor. For that, except her self serving testimony, she did not examine anybody. PW.1 admits that quit notice Ex.P8 was served on her. In Ex.P8, plaintiff claims that she has let out the property to defendant on monthly rent of Rs.2,000/- and tenancy commenced from 25.07.2006.
19. DW.1 in her cross-examination admitted service of notice and that she has not issued any reply to Ex.P8. If plaintiff was not lessor and rate of rent was not as mentioned in the notice, in the ordinary course, she should have issued reply to Ex.P8. Thereby there was deemed admission on her part regarding contents of Ex.P8 notice. However, Courts below did not draw proper inference on this aspect.
20. So far as competence of PW.1 to give evidence, defendant herself claimed that PW.1 was in charge of the property and nowhere she suggested to PW.1 that he is not aware of the facts of the case. In the affidavit filed in lieu of chief examination PW.1 states that contents of affidavit filed by him are true, correct to the best of his knowledge, information and belief. Further, he reiterated the same in his examination in chief adduced before the Court.
21. In the cross-examination of PW.1, his personal knowledge regarding lease transaction was not at all questioned. As against that it was asked whether he was authorized by his mother to file suit, for which he said that they together have filed the suit. To the suggestion that he has let out property, he states that his mother has let out property to the defendant. Such evidence demolishes defendant’s case that PW.1 had let out property to her.
22. This Court in Mr.R.S.Ranganath vs.
Mrs.N.L.Nagarathnamma’s case (C.R.P.No.276/2013 D.D.10.12.2013) has held that one of the co-owner can maintain the suit for ejectment and plaint can be filed by one co-owner. Courts below did not appreciate this legal position.
23. Defendant did not dispute that plaintiff was lady aged more than 70 years. The contents of her power of attorney and evidence of PW.1 regarding her medical condition was also not disputed. As already pointed out, PW.1 was her son. Under such circumstances, the Courts below were in error in drawing adverse inference for plaintiff not tendering evidence personally, that too when the Courts below say that PW.1 was one of the co-owner. Under these circumstances, judgment in S.Kesari Hanuman Goud’s case referred to supra relied upon by learned Counsel for respondent is not applicable to the facts of the case.
Reg: Validity of notice:
24. With regard to Section 106 of Transfer of Property Act, 1882, the Courts below held the notice defective on the sole ground that earlier notices referred to therein were not produced.
25. Defendant did not dispute validity of termination of notice at all. In Ex.P8, plaintiff contended that because earlier notices referred therein suffered some defects like house list number, boundaries and dimensions, appropriate notice is being issued. Defendant did not dispute that also.
26. If there was something beneficial to the defendant in earlier notices, certainly defendant would have produced those notices. Moreover defendant herself did not dispute the validity of Ex.P8 quit notice. Therefore, Courts below committed error in holding that notice was not valid.
Regarding arrears of rent:
27. Defendant did not issue any reply to Ex.P8 disputing rate of rent or arrears of rent claimed therein. Her claim that she was tenant under PW.1 and he executed agreement of sale was rejected by the Courts below. Under such circumstances, Courts below should have accepted the rate of rent mentioned in Ex.P8.
28. If there was arithmetical error in calculation of rent, Courts below could have moulded the relief. It was not the case of defendant that after issuance of such notice, she has paid rent.
29. As against that her case was that she was tenant under PW.1. In Ex.P8 it was claimed that defendant is in arrears from January 2008 till the date of notice. Suit was filed on 12.02.2009. Therefore, at the rate of Rs.2,000/- per month as on the date of suit, plaintiff was entitled to arrears of rent of Rs.26,000/-. Therefore, Courts below should have decreed the suit for arrears of rent to that extent.
30. For the reasons stated above, substantial questions of law are answered in favour of the appellant. The appeal is allowed with costs through out.
The impugned judgment and decrees of the Courts below are hereby set aside. Suit of plaintiff for recovery of arrears of Rs.26,000/- and vacant possession of suit schedule property is hereby decreed.
Defendant shall handover vacant possession of the suit schedule property within three months from the date of this order.
She shall pay rent that accrued during pendency of this proceedings and that accrues due until she hands over vacant possession of the property to the plaintiff.
Sd/- JUDGE KSR