Khemchand vs Babulal Jain

A.V. Chandrashekara, J.—The present petition filed under Section 115, C.P.C. is directed against the final order dated 17.8.2012 in S.C.2959/11 by the learned judge of SCCH. 18. Petitioner is the plaintiff in the said suit and respondent herein is the defendant. Parties will be referred to as plaintiff and defendant as per their ranking in the trial court.

The plaintiff chose to file a suit in the Court of Small Causes claiming himself to be the absolute owner of the schedule property. According to him, defendant is a tenant under him and that in spite of issuing a notice under Section 106 of the Transfer of Property Act, he did not vacate and hand over vacant possession of the premises. As such he was forced to file the suit for ejectment.

The case of the plaintiff as projected before the trial court is as follows:

"a) The property in question originally belonged one Seshmal Raichand Saremal Raichand. The defendant is stated to have taken possession of the schedule property as tenant under them on 5.10.1996 and the original agreement of lease entered into between the defendant and the original owners has been misplaced and even after hectic efforts, the same cannot be traced. Pursuant to the said tenancy, the defendant is said to have paid Rs. 1,50,000/- to Seshmal and Saremal and had agreed to pay Rs. 5,000/- as rent p.m.

b) It is contended that from January 2008, the defendant is stated to have stopped paying rent. When the plaintiff insisted the defendant to pay the arrears of rent and his share regarding water pumping charges, the defendant is said to have come up with a false story based on an agreement of sale dated 5.10.1996 in respect in respect of the flat situated on the second floor bearing No. 549, OTC Road, measuring 21'' x 42''.

c) According to him, the defendant got issued a legal notice to the plaintiff and others dated 31.5.1988 insisting to execute a regular sale deed on the basis of the alleged agreement of sale dated 5.10.1996. Another notice was got issued on 6.7.2008 and it was replied on 9.7.1998.

d) The defendant is stated to have got issued another legal notice through his advocate on 21.7.2008 on the basis of the agreement of sale dated 5.10.1996 intending to take action by filing a suit for the relief of specific performance. As such the plaintiff got issued a legal notice dated 11.11.2009 calling upon him to vacate and hand over the schedule premises within fifteen days from the date of receipt of the notice, lest, he would be forced to file a suit for ejectment. But in spite of receipt of the same, the defendant did not vacate and hand over vacant possession of the suit schedule property. As such he was forced to file the suit for ejectment.

e) According to the plaintiff, Rs. 1,50,000/- received as advance towards rent is not liable to be returned to the defendant since he is in arrears to the extent of Rs. 2.20 lakhs.

f) The defendant has chosen to file a detailed written statement denying the very title set up by the plaintiff. According to him, the plaintiff has not placed any document on record to show his title in respect of the schedule property and therefore there is no relationship of landlord and tenant between him and the plaintiff. According to him, the plaintiff along with his father and maternal uncle, Late Seshmal and Saremal have entered into an agreement of sale on 5.10.1996 in respect of the schedule property agreeing to sell the entire property for a sum of Rs. 13.5 lakhs and had received Rs. 1.5 lakhs as advance on the same day. The clauses of the agreement, according to the defendant, relating to usage of terrace area and place for parking vehicles were not to be found in the said agreement and therefore on 18.10.1996, plaintiff and his family members received further Rs. 4,00,000/- and on 15.1.1997 another sum of Rs. 4,00,000/- was paid. Thus the defendant is stated to have performed his part of the contract and he is ready and willing to perform the remaining part of the contract.

g) It is further contended that the defendant has filed a suit for the relief of specific performance in O.S.2592/12. The plaintiff and his family members have played fraud on him by committing breach of the terms of the agreement of sale. The defendant is stated to be in lawful possession of the suit property on the strength of the agreement of sale and not as tenant. With these pleadings, he had requested the court to dismiss the suit.

h) The plaintiff has got examined himself as PW1 and has got marked 18 exhibits. The defendant has got himself examined as DW1 and got marked 5 exhibits. The learned judge, analyzing the oral and documentary evidence on record, has chosen to dismiss the suit vide considered judgment dated 17.8.2012 by framing the following issues:

1) Whether the plaintiff proves that he is the owner of the suit schedule property and defendant is the tenant under him?

2) Whether the plaintiff proves that the notice of termination issued by him under Section 106 of T.P. Act is valid and proper?

3) Whether the plaintiff is entitled for the damages and the relief sought?

i) It is this judgment which is called in question in question on various grounds as set out in the memorandum of revision petition."

Learned counsel for the petitioner has relied on a Full Bench decision of this court reported in ILR 2011 KAR 229 in the case of Abdul Wajid v. A.S. Onkarappa to contend that ''the Small Causes Court has got all power to go into the question of title in a suit for ejectment, though title is specifically denied.

Heard learned counsel for the respondent. After going through the records and hearing arguments, the following points arises for consideration in this petition:

1) Whether the trial court is justified in dismissing the suit on the ground that there is no relationship of landlord and tenant?

2) Whether any interference is called for, and if so, to what extent?

REASONS

Point No. (1): The suit schedule property is situated at No. 549, 2nd floor, Seshmal Building, OTC Road, measuring 21'' east-west and 41'' north-south. In paragraph 4 of the plaintiff, plaintiff has averred that he is the owner of the schedule property and the defendant is his tenant. In paragraph 5 of the plaint, it is averred that his father-Seshmalji and maternal uncle-Saremal had purchased a site and put up a building inclusive of the schedule property. It is his specific case that the defendant became the tenant in respect of the building on 5.10.1996 under an agreement of lease executed by him in favour of his father and uncle. The said agreement is not placed before the trial court on the ground that it is misplaced and in spite of best efforts, he has not been able to trace the same. It is also his case that Rs. 1.5 lakhs was paid by the defendant on 5.10.1996 as advance towards rent and tenancy commenced from 1.11.1996. It is his case that he had agreed to pay Rs. 5,000/- as rent p.m.

In his evidence, PW1 has specifically deposed that his father has 3 sons and 3 daughters and his uncle has one son and one daughter. Both his father and uncle are no more. It is his case that the original agreement is with the defendant and he has got the Xerox copy of the same. Nothing came in his way at least to produce the Xerox copy of the said agreement of lease entered into by the defendant with his father and uncle. No efforts are made to lead evidence under Section 65 of the Evidence Act. In the light of specific denial of the very agreement of lease by the defendant, one cannot expect him to produce the same.

It is his further case that he has issued rent receipts to the defendant, but has not retained any counter-foil of the same. Admittedly he is an income tax assessee and has filed income tax returns for the years 2009 to 2011. It is his further case that he had demanded the defendant to pay Rs. 6,000/- from 2008, but the defendant did not agree. He has not chosen to examine his brothers or sisters or the children of his uncle. Even to this day, the khatha of the schedule land stands in the name of Seshmal.

The plaintiff was not present at the time when the alleged lease came into being and he has feigned ignorance about the date on which it came into existence. His father is said to have told him about the lease agreement executed in favour of the defendant, in the year 1997, just prior to his death. He has further feigned ignorance about the date on which he was informed about this agreement. He has further feigned ignorance about how many days prior to his death, his father had informed him. It is his case that even the xerox copy of the agreement is misplaced in the year 2008 while shifting his house.

It is his case that he has become the owner of the property on the basis of the division that has taken place between his brothers in the year 2008. Madanlal and Gowthamchand are his brothers and the alleged partition is not evidenced by means of any document. Nowhere in the plaint he has whispered about the partition that has taken place between himself and his brothers and cousins after the death of his father and the suit schedule property falling to his share absolutely. Nothing came in his way to examine one of his brothers to vouch-safe the partition that took place, the property falling to his share and the tenancy being attorned in his favour.

To a specific question as to whether his brothers had authorized him to represent them in the present case, he has answered that they have orally authorized him. It is his case that he has instituted the suit as a member of joint family and is competent to represent his brothers. In the plaint he has contended that he has become the absolute owner on the basis of a division that took place between himself and his brothers. No evidence is placed on record even to establish the same remotely.

In his cross-examination in page 5, he has deposed that he has filed the suit for and on behalf of the family consisting of his brothers. His brothers are hale and healthy and are capable of moving about and they are ready to give evidence in his favour. He has not chosen to examine one of them in support of his contention.

In fact PW1 has deposed that his father had informed him about the cheque being issued by the defendant in his favour relating to the schedule premises. It is his case that in the year 2008, disputes started between him and the defendant.

The case of the defendant, on the other hand, is that the plaintiffs his father and uncle have executed the agreement of sale relating to the schedule property on 5.10.1996 and consequent upon the same, he has been put in possession. He has emphatically denied the relationship of landlord and tenant and he has asserted his possession on the basis of the agreement of sale marked as Ex.D1. Seshmal and Saremal and 3 sons of Seshmal are signatories to Ex.D1. Of course the defendant has not taken any steps to prove the agreement of sale dated 5.10.1996. This cannot come in the way of the defendant because he has already filed a comprehensive suit for specific performance against the plaintiff and his brothers and uncle before the City Civil Court in O.S.259/12. A certified copy of the plaint in the said suit is marked as Ex.D5.

Of course Ex.D1 does not disclose possession of the schedule property being handed over to the defendant on 5.10.19 96. It only speaks about the plaintiff and his family members having agreed to sell the suit property for Rs. 13.5 lakhs and having received Rs. 1.5 lakhs as advance on the same day. Ex.D1 does not bear the signature of the defendant and therefore it is argued that it is no agreement in the eye of law. Anyhow the original agreement has been produced by the defendant since he is the lawful custodian. Absolute proof of the same is required in the comprehensive suit filed by the defendant against the plaintiff and his family members before the City Civil Court which is evident from Ex.D5. In a case like this, initial burden cast on the plaintiff will have to be effectively discharged, lest, the onus will not shift on the other side. In the light of initial burden cast on the plaintiff being not discharged effectively, the onus has not shifted on the other side.

Even if there are some inconsistencies in the case of the defendant, the same will not be advantageous to the plaintiff unless the burden is effectively discharged as per the mandate of Sections 101 and 102 of the Evidence Act. As already discussed, at one breath, plaintiff bases his case on the strength of acquiring title by means of the partition, and at another breath, he has deposed that his brothers have given consent to file the present suit and have also authorized him. In that case, nothing came in the way of the plaintiff to have examined one of them.

The property in question originally belonged to his father and uncle. No acceptable evidence is placed on record to show that he is the absolute owner of the property. Exs.P15 and P16 are death certificates of his father and his uncle, both died in the year 1997. Khatha still stands in the name of Seshmal. As argued by the learned counsel for the respondent, if there was a partition between himself and his brothers and the property had fallen to his share, definitely his name would have found in the property records maintained in the Municipal Corporation. There is a lot of force in the submission of the learned counsel.

Even prior to the filing of the suit before the trial court, the defendant had issued a notice to the plaintiff and his brothers calling upon them to execute a regular sale deed pursuant to the agreement of sale dated 5.10.1996 � Ex.D1. Ex.D2 dated 18.10.1996 is another document about the earlier payment of Rs. 1.5 lakhs on 5.10.1996 and Rs. 4,00,000/- on 18.10.1996. It is mentioned therein that the remaining Rs. 8,00,000/- would be paid on or before 25.12.1996. Ex.D3 is an acknowledgement stated to have been issued by Seshmal and his brothers, Khemchand, Makanlal and Gouthamchand for having received Rs. 4,00,000/- on 15.1.1997 relating to the property in question. It is not as though the defendant is relying on the agreement of sale when the suit was filed against him. He has relied on this document way back in the year 1988 long prior to the filing of the suit in S.C.2959/11.

The defendant has already filed a suit against the present plaintiff, his brothers and uncle in O.S.259/12 and it is a comprehensive suit. If ultimately the plaintiff fails in the said suit to have a regular sale deed, nothing comes in the way of the owners seeking possession either by filing a separate suit or filing a counter-claim as per law. In fact the plaintiff has, in his deposition on 3.5.2010, specifically deposed that he does not have any document to show that the defendant is his tenant. He has further admitted that the original agreement of lease was with his father and uncle and now the same might have been in possession of his brothers before filing the suit or even thereafter. He has not asked his brothers in regard to the agreement of lease before filing the suit.

Thus even after re-assessment of the evidence by this court, it is evident that the learned judge is justified in dismissing the suit. Viewed from any angle, I find no grounds are made out to interfere with a well-considered judgment. Hence, point No. (1) is answered in the affirmative.

Point No. (2): In view of the affirmative finding on point No. (1), no interference is called for and the petition has to be dismissed.

In the result, I pass the following order:

ORDER

The petition is dismissed.

Notwithstanding the dismissal of the petition, nothing comes in the way of the parties to the suit to support their respective contentions as per their pleadings in the said suit bearing O.S. No. 259/2012. Notwithstanding the dismissal of this petition, the Trial Court to dispose of the suit on merits uninfluenced by the observation made by this Court or the Trial Court in S.C. No. 2959/2011.

Parties to bear their own costs.