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Judgment
Huluvadi. G. Ramesh, J.—This appeal is by the Defendant challenging the judgment and decree passed by the XLIV Addl. City Civil and
Sessions Judge, Bangalore in O.S. No. 7411/2007 by order dated 8.3.2011.
Parties are referred according to their rank before the trial Court.
Suit was filed by the Plaintiff for ejectment of the Defendant from the the suit schedule property bearing No. 18, 93, 94 and 95, present
Municipal No. 93, situate at II Main, 7th cross, Sampige road, Malleswaram, Bangalore.
According to the Plaintiff, he is the absolute owner of the suit schedule property as per the registered Gift Deed dated 5.7.2003 executed by his
mother in his favour and also the khata stands in his name. According to the Plaintiff, Defendant was a tenant in respect of portion of the property
on a monthly rental of Rs. 800/- and notice of ejectment was issued to the 1st Defendant on 16.1.2006. Since the Defendant has denied the
relationship of landlord and tenant, another notice came to be issued on 24.03.2006 terminating the tenancy calling upon him to vacate and deliver
the vacant possession of the premises. Since the Defendant has not sent any reply, suit came to be filed. The Defendant has filed the written
statement denying the jural relationship and sought for dismissal of the suit stating that, no legal notice is served on him as per the requirement and
that Plaintiff does not know who is the tenant and that the Defendant has become the owner by adverse possession since he is in possession since
3.12.1982 having taken over the business from one Sri. Parasmal and thereafter, the 2nd Defendant continued in possession. Since the then
owners had some dispute among themselves regarding ownership, O.S. No. 523/1983 had been filed, which came to be dismissed on 3.4.1998.
The 2nd Defendant neither paid rent to the Plaintiff nor the Plaintiff has issued rent receipts to the 2nd Defendant. The recitals in the sale deed
dated 5.11.1999 executed by Smt. Bramaramba in favour of Neelamma does not show the delivery of possession of suit schedule property and
Neelamma had never got possession and there is no delivery of possession by way of symbolic possession to the donee. As such, the Plaintiff has
no authority to claim himself as landlord of the suit schedule property. Based on the pleadings, following issues were framed;
Whether the Plaintiff proves that the Defendants are tenants under him in respect of the suit schedule premises?
Whether the Plaintiff proves the valid termination of tenancy of the Defendants in respect of the suit schedule property by issuing a legal notice
dated 24.3.2006?
Whether the Plaintiff is entitled for a decree of possession as prayed for?
Whether the Defendant proves the alleged interference of the Plaintiff in enjoying the suit schedule property?
Whether the Plaintiff is entitled for a decree of permanent injunction as prayed for in his counter claim?
The evidence of the parties was recorded and documents were marked. Thereafter, the trial Court has passed the impugned order of ejectment.
Being aggrieved by the said order, the Defendant has filed this appeal on the ground of maintainability of the suit before the Civil Court, on the
point of relationship of landlord and tenant, regarding payment of rental and possession.
Heard.
The learned Counsel for the Appellant-Defendant has argued that the Plaintiff, at no point of time, was in possession of the suit schedule
property nor his mother, who has gifted the property in favour of the Plaintiff and, no rental was paid to the Plaintiff by the Defendant. There is no
relationship of landlord and tenant between them and no termination notice is issued. He has perfected his title by adverse possession and
accordingly, asserting the right, has sought for allowing the appeal and to set aside the order of ejectment on the ground that suit is barred by
limitation and is net maintainable. He has also contended that the Full Bench of this Court has decided that ejectment suit cannot be maintained
before the Civil Court. Learned Counsel has also relied upon the decision reported in Biswanath Agarwalla Vs. Sabitri Bera and Others, and also
some other judgments as under:
Amrendra Pratap Singh Vs. Tej Bahadur Prajapati and Others,
AIR 1922 Privy Council 184 in the case of Ramanuj v. Ramkrishna.
Kamlesh Babu and Others Vs. Lajpat Rai Sharma and Others,
AIR 1927 Bombay 650 in the case of Purshotham v. Vishnu.
AIR 1933 Sind 279 in the case of Khanu Chuhar v. Panjal Shah (FB).
AIR 1922 Allahabad 423 in the case of Gendalal v. Balkishan.
AIR 1970 Rajasthan 68 in the case of Sitaram v. Govind.
AIR 1924 Patna 572 in the case of Hari Gir v. K. Kamakhya Narayan Singh
R.V. Bhupal Prasad Vs. State of Andhra Pradesh and others,
Bhag Mal (alias) Ram Bux and Others Vs. Munshi (Dead) by Lrs. and Others,
Rajendra Tiwary Vs. Basudeo Prasad and Another,
Biswanath Agarwalla Vs. Sabitri Bera and Others,
Per-contra, learned Counsel for the Respondent has submitted that, the Civil Court has got jurisdiction to try the matter since the Defendant, in
the reply to the legal notice, has raised several contentions and also regarding adverse possession which cannot be adjudicated by the Court of
Small Causes and since the Defendant was claiming to be in possession as a tenant, legal notice has also been issued to him terminating the tenancy
and suit for ejectment was filed. Throughout, Defendant was in permissive possession as a tenant. At no point of time he set up his right, title and
interest over the suit property adverse to the interest of the owner/landlord. The Plaintiff is the person to whom the property has been transferred
from his mother who had purchased the property from the erstwhile owner/landlord of the property. It is a monthly tenancy and there is due
termination of tenancy by issuing legal notice as per Section 106 of the Transfer of Property Act. Defendant is neither entitled to resist the suit in
any manner nor has acquired any right/title over the property. Only to dodge the proceedings, he has come up with all frivolous grounds to defeat
the very order of the ejectment passed by the trial Court, to gain time and to continue in the premises for which he is not entitled to. Accordingly,
learned Counsel has sought for dismissal of the appeal.
In the light of the arguments advanced, the points that would arise for my consideration are,
i) Whether the Civil Court has got jurisdiction to try the ejectment suit?
ii) Whether the Defendant is entitled for any relief sought for by him?
iii) Whether the order of ejectment passed by the trial Court is justified?
iv) What order?
In Biswanath Agarwalla''s case, the Apex Court while dealing with the matter in relation to West Bengal Premises Tenancy Act of 1956 has
held that, the tenant upon termination of tenancy does not become a trespasser, but, a statutory tenant. Further referring to Section 106 of the
Transfer of Property Act, while answering the question as to whether the tenant becomes a trespasser it is held that, situation in almost all the
States is quite different as they have enacted rent control legislation governing the conditions, of tenancy in respect of house premises.
The contention of the learned Counsel for the Appellant in the context that there is non-framing of issue, is of no help to him. In the above
judgment relied upon by the learned Counsel for the Appellant, in paragraphs 17 and 18, the Apex Court has held that, in respect of landlord and
tenant relationship, if the landlord proves his general title, he may obtain a decree on the basis thereof, despite non-proving of relationship of
landlord and tenant.
According to the Defendant, Plaintiff himself does not know who is the tenant in occupation of the suit schedule premises and notice is bad in
law. The case of Defendant No. 2 is, he has purchased the running concern i.e.., the business from one Parasmal on 3.12.1982 and the said
Parasmal had purchased the same from one M.K. Muniswamy and that the then owners had some dispute among themselves and in that regard,
the suit filed came to be dismissed on 3.4.1998. Further according to him, he is in uninterrupted possession of the premises from 1982. He neither
paid the rent to the Plaintiff nor the Plaintiff has issued rental receipts to him and the suit is also barred by limitation.
To controvert the stand of the Defendant, Plaintiff has produced Ex.P19 dated 20.02.2005, an endorsement showing the name of the Plaintiff
entered in the register of the Corporation records and the property number is also given as 93 as per Ex.P20. In addition to that, apart from the gift
deed executed by his mother in his favour, the certified copy of the sale deed executed by Smt. B G Bhramarambamma in favour of the mother of
the Plaintiff dated 7.10.1998 is also produced which is at Ex.P51. Referring to the above documents and also the encumbrance certificate issued in
favour of Plaintiff''s mother and himself and also the tax paid receipts, the trial Court has noted that initially the property was in the name of S.B.
Nanjundaiah and later it was entered in the name of B.G. Brahmarambamma, the erstwhile vendor of the property in favour of the mother of the
Plaintiff and also, in the possessor column, the name of the tenant H Parasmal has been deleted and name of Navrathanmal, M/s. Ramlal Mohanlal
Mandoth has been entered. Further, it has referred to Ex.P6 which shows that the electricity meter earlier standing in the name of Parasmal had
been changed in the name of the Plaintiff.
In paragraph 20 of the judgment, the trial Court has noted that, D.W. 1 in his cross-examination has stated that he does not know to whom the
previous tenant M. Parasmal was paying the rent and also according to him, nobody has demanded nor he paid the rent to anybody. On the other
hand, there are several Exs.P27 to P50 which are the M.O. receipts which shows that the Defendant has paid the rent to the Plaintiff @ Rs. 800/-
per month and there is also an admission in this regard by the Defendant that M.O. receipts were addressed to Ramlal Mohanlal. Although it is
contended that the documents are concocted, the trial Court has noted that the exhibits produced are not for one or two years, but it is for several
years, as such, the contention of the Defendant that Plaintiff has created the rental receipts cannot be accepted. I do find force in the reasoning
given by the trial Court. Apart from that, as per Ex.P19 the property stands in the name of the Plaintiff although the earlier records were in the
name of different persons.
What is not in dispute is, the 2nd Defendant is in possession of the suit property. Even the trial Court has rightly noted that except the
contention of the 2nd Defendant that he becomes the owner by adverse possession and also suit is barred by limitation, if really the intention of the
Defendant was to act against the interest of the real owner/landlord and the conduct of the landlord was such as to permit the Defendant No. 2 to
be in possession adverse to their interest, it was for the 2nd Defendant to demonstrate his right by way of counter claim and by producing sufficient
documents for having asserted his right or to establish his acquisition of title over the suit property against the interest of the landlord. Moreover, as
rightly held by the trial Court, the 2nd Defendant never paid the tax in respect of the suit property, that too it is a commercial premise and
admittedly, even the adjacent property is said to have been demolished by the Plaintiff, which has been admitted by D.W.1 and also he has
admitted that Plaintiff has exercised the right of ownership on the adjacent premise of which the petition premise forms part of the building.
Several of the judgments cited by the Defendant are on the point of limitation in general. In the latest decision of the Apex Court referred to
above in Biswanath Agarwalla''s case, on which the counsel for the Appellant has placed reliance, in paragraphs 17 and 18 it has specifically held
that, even when landlord and tenant relationship is not proved, but if landlord proves his general title he may obtain the decree on the basis thereof.
Even on the point of jurisdiction in the decision reported in Rajendra Tiwary Vs. Basudeo Prasad and Another, regarding the matter to be
triable by the Rent Courts, the Apex Court has held that, the Court of Rent Control having limited jurisdiction to try suits on grounds specified in
the Special Act obviously does not have jurisdiction of the ordinary Civil Court and therefore, cannot pass a decree of eviction of the Defendant on
a ground other than one specified under the Act.
In view of the above legal and factual position, rightly the suit has been tried and decreed by the trial Court having exercised jurisdiction. When
the material evidence placed on record by the Plaintiff regarding his ownership much less the relationship of landlord and tenant by producing the
rent receipts and also ownership documents, has not been disputed, except non-mentioning of the tenant''s possession in the title deed sufficient
evidence is on record to show there is a jural relationship of tenant and landlord and the Defendant has tried to establish his right by a futile act
without producing cogent evidence. Hence, it is held that the trial Court has rightly decreed the suit of the Plaintiff.
In the circumstances, appeal is dismissed while answering the substantial questions raised in favour of the Respondent. Parties to bear their own
costs. However, Appellant is given one year''s time to vacate and hand over the vacant possession of the premises, subject to filing an undertaking
to the effect that he will pay all the arrears of rentals and also future rent as and when it becomes due and, also to the affect that he would vacate
and hand over the vacant possession of the premises on or before the expiry of one year, within four weeks.