Smt. Amba Gowda vs M/s. My Dream Bar and Restaurant and Others

A.S. Bopanna

The appellant herein is the plaintiff in O.S. No. 9137/2004. The suit was filed seeking ejectment of the defendants from the plaint schedule property. The suit has been ultimately dismissed by the Court below by its judgment dated 11.06.2010. The plaintiff claiming to be aggrieved by the same is before this Court in this appeal. The parties would be referred to in the same rank as assigned to them before the triai Court for the purpose of convenience and clarity.

The brief facts are that the plaintiff claims to be the owner of the suit schedule property bearing No. 26 (presently 2611), K.G. Circle, Bangalore-560 009. The contention of the plaintiff is that she has acquired absc!ute right to the said property under a partition deed dated 30.06.1976. It is averred that the property was originally being managed by her father Sri Ramanna and the premises was tenanted wherein the defendants are running a Bar and Restaurant. In addition to the premises belonging to she plaintiff, the defendants are said to be running the Bar and Restaurant in the adjoining premises bearing No. 29/1, which belongs to the father, mother, brother and sisters of the plaintiff. The plaintiff alleges that the defendants conniving with the plaintiff''s parents and siblings have created certain documents to indicate as if they are paying the monthly rents to them. However, the plaintiff on asserting that the defendants are the tenants under her in the premises belonging to her has sought for eviction.

The defendants on appearance have filed their written statement and disputed the claim of the plaintiff. The relationship of landlord and tenant between the plaintiff and defendants is denied, though the defendants admit that they were in possession of the premises under Sri Ramanna i.e., the father of the plaintiff and that ultimately in a suit filed in O.S. No. 8452/2005, the matter was compromised between the said Sri Ramanna and the defendants wherein the defendants have agreed to handover possession of the premises. Subsequently, in the execution proceedings, the defendants are stated to have handed over possession to the said Sri Ramanna.

In the light of the rival contentions, the trial Court framed as many as seven issues for its consideration. The plaintiff examined herself as P.W. 1 and marked documents at Exhs.P1 to P12.

Sri N.C. Devarai examined himself as Power of Attorney on behalf of the defendants as D.W.1 and the documents at Exhs.D1 to D3 were marked. The trial Court while considering the materials available on record. answered Issue No. 1 in the negative holding that the relationship of landlord and tenant between the plaintiff and the defendants had not been established. Hence, it has dismissed the suit. Therefore, the trial Court was of the view that the other issues do not arise for consideration.

In view of the said finding, the primary question for consideration in the appeal is as to whether the plaintiff in fact had established the relationship of landlord and tenant and in that view as to whether the other issues would arise for consideration?

Heard the Learned Counsel for the parties and perused the appeal papers including the records received from the trial Court.

The Learned Counsel for the plaintiff while assailing the conclusion reached by the trial Court would at the outset point out that when the defendants have admitted in their written statement that they are in possession of the suit schedule premises, the trial Court was not justified in its conclusion. It is also contended that even otherwise, the trial Court has wrongly relied on the compromise entered into between the parties in O.S. No. 8452/2005. In that regard, it is pointed out that the present suit schedule property bearing No. 26 or 26/1 is not the subject matter in the said suit inasmuch as the schedule indicated therein is the property bearing No. 29/1 and 30. It is therefore contended that when the plaintiff has established her right by producing partition deed dated 30.06.1976 that she is the owner of the property bearing No. 26 (New No. 26/1), the trial Court ought not to have accepted the contention that the possession of the said property has been handed ovcr to the plaintiff in O.S. No. 8452/2005. It is therefore contended that in view of the admission of the defendants that they are in possession of the suit schedule premises of the instant suit, nothing more requires to be proved and the judgment and decree sought for should have been granted.

Learned Counsel for the defendants would however contend that except for claiming ownership right over the property bearing No. 26 (26/1), the plaintiff has not produced any material whatsoever before the trial Court to establish the jural relationship of the landlord and tenant between the plaintiff and the defendants. It is contended by the Learned Counsel that the defendants though have indicated that they were in possession of the suit schedule property, they have also further indicated in the written statement that they had come in possession of she property along with the adjacent property for the purpose of running their business. They were tenants under Sri Ramanna, who was the plaintiff in O.S. No. 8452/2005 and they were in possession for nearly 30 years and have now handed over possession in view of the compromise entered in the suit filed by Sri Ramanna. It is emphasised by the Learned Counsel for the defendants that the defendants who are merely the tenants of a block of property where they were running their business had taken the entire premises without reference to the specific number, but for the convenience of the defendants to run the business of Bar and Restaurant. Once they have decided to handover possession of the property, they have handed over the possession to Sri Ramanna including that portion which was in their possession and is now claimed to be the property belonging to the plaintiff which is the subject matter of the instant suit. It is therefore contended by the Learned Counsel that the trial Court was justified in rendering the finding on Issue No. 1 and the same does not call for interference.

In the light of the rival contentions and the materials available before the Court, at this juncture, it would not be necessary for this Court to go into the details and the manner in which the partition deed has come into ox!sterice since the other parties to the said partition are not before this Court. However, prima facie, the plaintiff has relied on the partition deed dated 30.06.1976 (Ex. P1 ) to claim ownership in respect of the suit schedule property. Under the said document, the possession is stated to have been given to the plaintiff and in order to establish that the document has been acted upon, the documents at Exhs.P2 to P4 are relied to point out the khatha standing in the name of the plaintiff to her share and in the name of father of the plaintiff in respect of the other properties which has gone to his share. In a suit for ejectment against the tenant, the position is well established that the ownership of the property alone would not be sufficient, but the jural relationship would also have to be established to seek ejectment under the provisions of Section 106 of the Transfer of Property Act. In that regard, from among the documents which have been marked on behalf of the plaintiff, there;s no material to indicate either that the plaintiff had put the defendants in physical possession of the property or to indicate that the defendants had paid the rent at any point in time to the plaintiff. In that view, the extent to which the plaintiff could rely on the admission made in the written statement also needs to be noticed by this Court.

In that regard, the perusal of the written statement would no doubt indicate that the defendants state that they are in possession of the suit schedule property. But they have further stated that the suit schedule property in O.S. No. 8452./2005 and in the instant suit are one and the sarno. The manner in which the possession of the property was taken about 30 years back as tenants from Sri Ramanna who is the landlord and owner of the suit schedule properly in O.S. No. 8452/2005 is also stated. In that view, if the written statement is understood in its entirety, the nature of defence put forth by the defendants is to say that the composite property had been taken by the defendants to run their business. In that view, if the schedule to O.S. No. 8452/2005 is perused, it is no doubt true that it does not include the property bearing No. 26, but refers to the property bearing No. 29/1 and 30. Further as pointed out by the Learned Counsel for the plaintiff, in the Memorandum of Settlement (Ex. P8), a reference is also made to the fact that the plaintiff therein had received the amount and the names referred to therein in para 1 of the settlement does not indicate the name of the plaintiff herein.

However, uitimately the settlement reached is to handover possession of the property, which was in the possession of the defendants. In the context of the compromise reached in O.S. No. 8452/2005 and since the defendants have clearly contended that the possession of the property which had been taken by the defendants herein from Sri Ramanna has been handed back to Sri Ramanna, notwithstanding the defence which had been put forth in the written statement, there was a duty cast on the plaintiff to further establish the fact that the possession handed back under the compromise in O.S. No. 8452/2005 did not include the property bearing No. 26 (New No. 26/1) belonging to the plaintiff and that the defendant:: continued to remain in possession of that property. in the absence of there being evidence to that effect, the suit in any event could not have been proceeded further to pass an order of ejectment against the defendants when they claim that they are not in possession of the said premises. Therefore, to the said extent, on having arrived at the conclusion that the relationship of landlord and tenant had not been proved and there was no material to the said extent, the trial Court was justified.

Further, taking note of the nature of the defence which had been put forth by the defendants and also considering the fact that Sri Ramanna had instituted another suit in O.S. No. 8452/2005 and under the guise of the compromise entered into therein relating to the property bearing Nos. 29/1 and 30, if possession of the property bearing No. 26(26/1) has also been received by Sri Ramanna, the said Sri Ramanna would no doubt be bound in law to put the plaintiff in possession of the said property, if there is no dispute amongst them to the fact that under the partition deed doted 30.06.1976 (Ex. P9), the property bearing No. 26(26/1) has faller. to the share of the plaintiff.

Therefore, even though in the instant suit and this appeal, there would be an irresistible ccnclusioo that the plaintiff would not be entitled to maintain the instant suit against the defendants, since the defendants herein have throughout contended that they have handed over the possession, they would not be entitled to continue in the property bearing No. 26(26/1) belonging to the plaintiff. In that view, if Sri Ramanna i.e., the father of the plaintiff has wrongly received possession of the property though it belongs to the plaintiff, she would be entitled to seek her redressal in the event of the said Sri Ramanna i.e., the father of the plaintiff holding on to the possession of the property,cifhich �s stated to have fallen to the share of the plaintiff wrongfully. Therefore, the plaintiff in any event would have the right in that regard, but would not be entitled to proceed against the defendants herein by terming them to be the tenants. Hence, having considered these aspects of the matter and having perused the findings rendered by the trial Court, I am of the opinion that the finding rendered on Issue No. 1, keeping in view the manner in which the suit was filed seeking ejectment of the defendants, the same is justified. In that context, the other issues do not arise for consideration. However, liberty is always open to the plaintiff to take possession of the property in accordance with law, keeping in view the observations made hereinabove.

In the result, the appeal is dismissed. No order as to costs.