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Subhan v/s V.S. Ramachandra

    Civil Revision Petition No. 455 of 2017 (SC)

    Decided On, 07 March 2018

    At, High Court of Karnataka


    For the Petitioner: M.S. Rajendra Prasad, Senior Council for M.S. Mukarram, Advocate. For the Respondent: V.B. Ravishanker, Advocate.

Judgment Text

(Prayer: This CRP is filed under Section 18 of the Karnataka Small Causes Court Act, against the judgment and decree Dtd: 08.09.2017 passed in Sc.No.952/2014 on the file of the XXI Addl. SCJ AND XIX ACMM, Member-MACT, Bengaluru, decreeing the suit for eviction.)

1. Heard the learned Senior Counsel Sri. M.S. Rajendra Prasad on behalf of the petitioner and the learned counsel for the Caveator/Respondent.

2. The petitioner is before this court being aggrieved by the judgment and order dated 08.09.2017 directing the defendant Nos.1 to 3 to vacate and hand over the vacant possession of the suit schedule property to the plaintiff within two months from the date of the decree, the petitioner is defendant No.3 before the trial court. The parties in this petition are referred to as per their rankings in the trial court.

3. The case of the plaintiff is that he is the absolute owner of the property bearing shop (old) No.34 and New No.227, situated at Arcot Srinivasachar Street, Bengaluru-560 053, measuring East to West 20 feet and North to Sou

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th 17 feet. That the father of the plaintiff had acquired the schedule properties in a court auction and under sale certificate dated 09.08.1935.

4. That the father of the defendant Nos.1 and 2 was inducted as a tenant in the schedule property permitting him to carry out business. That the father of the plaintiff died in the year 1964 and thereafter the father of the defendant Nos.1 and 2 continued paying the rent to the plaintiff. After the death of the father of defendant Nos.1 and 2, the defendant Nos. 1 and 2 were permitted to continue the business and continue the use and occupation of the premises. That the tenancy is a monthly tenancy and commences from the first of every month and ends with the last day of the same month.

5. That the plaintiff has taken steps for evicting the other tenants as the plaintiff intended to put up a hotel on the suit schedule property including the adjacent property. That in furtherance of the same, the plaintiff called upon to defendant Nos.1 and 2 to quit, vacate and deliver the vacant possession, but they failed to pay heed to the same. At this stage, defendant No.3 preferred a suit in O.S. No.25807/2013 seeking a restraint order against the plaintiff from interfering with his possession of the suit schedule property and it was only then, the plaintiff came to know about the fact of subletting of the suit schedule properties by the defendant Nos.1 and 2 in favour of the defendant No.3 and have thereby violated the terms of the tenancy by subletting the suit schedule property to defendant No.3. Hence, a quit notice was got issued on 19.06.2014 terminating the tenancy of the defendant Nos.1 and 2 and called upon the defendant Nos.1 and 2 to quit and deliver the vacant possession of the schedule property on 15.07.2014. The defendant No.3 was impleaded in the above suit as it was alleged by him that he is a tenant in occupation of the suit schedule premises and hence, quit notice was also got issued to defendant No.3. The notices were received by the defendants and they got issued untenable replies. Further the defendants omitted to comply with the demand under the quit notices and hence, the present suit.

6. It is contended by the learned Senior Counsel that the trial court has erred in not considering the claim of the defendant more particularly that of the defendant No.3, that he is in occupation of the suit schedule premises in his own right as a purchaser, under an agreement of sale dated 28.08.2001 and that the plaintiff is not the landlord and that the defendant Nos.1 and 2 are the absolute owners of the property and that they had leased out the property under the agreement of lease dated 04.08.1998 and later entered into an agreement dated 10.10.2000 and that under the subsequent agreement of sale dated 28.08.2001, the petitioner has acquired an interest in the suit schedule property and stepped into the shoes of the owner.

7. He would nextly contend that the suit schedule property has also not been identified and he would draw the attention of the court to the decree and to the schedule in the sale certificate executed by the court pursuant to the sale of the suit schedule property under a court auction. He would contend that the court below erred in not noticing the glaring error and ought to have called upon the plaintiff to demonstrate the identity of the property. Hence, he would contend that the order impugned under the present revision petition warrants further consideration. He would nextly contend that the court below has erred in holding that there indeed exists a jural relationship between the parties.

8. The defendant Nos.1 and 2 have been placed ex-parte, though served have chosen to remain absent and have chosen not to contest the suit of the plaintiff.

9. He got examined himself as PW1 and got marked Exhibits P1 to P21. To summarize, the exhibits are the certified copy of the sale deed of the year 1935, certified copy of the property card, certified copy of the sketch, certified copy of six Khatas, certified copy of the 17 tax paid receipts and the true copy of the map with the property card. There is no dispute that all the above documents pertains to the suit schedule property. The documents have not been disputed by the defendants nor have they been controverted.

10. The defendant got examined DW-1 to 3 and got marked exhibits D1 to D13. To summarize, the same are two electricity bills, one receipt, licence, a copy of the legal notice, two postal receipts and acknowledgment, copy of the plaint in O.S. No.25807/2013, a copy of the written statement filed in the said suit, agreement of lease said to have been exhibited by the defendant Nos.1 and 2 dated 04.08.1998 and other agreement of rent said to have been executed by the said defendants on 10.10.2000 and sale agreement dated 28.08.2001 yet again said to have been executed by the defendant Nos.1 and 2.

11. On the above pleadings and the list of documents placed before the court, the court was pleased to frame five issues. The first issue relates to proof of jural relationship. The second issue pertains to the issue as to whether the defendant No.3 demonstrates that the defendant Nos.1 and 2 are the absolute owners of the suit schedule property and as to whether they have conveyed the same in favour of the defendant No.3 by executing an agreement of sale. The third issue pertains to the termination of tenancy.

12. The trial court after a detailed appraisal of the contentions and the material on record has been pleased to hold issue No.1 in the affirmative, issue 2 in the negative and issue No.3 in the affirmative. The trial court has relied on the very proceedings initiated by the third defendant in O.S. No.25807/2013 and also the judgment and decree rendered in O.S. No.653/1969 and the order passed in M.A. No.44/1969 to conclude that there indeed exists a jural relationship. The court below has relied on the judgment and decree in O.S. No.653/1969 and M.A. No.44/1969 to conclude that the father of the defendant Nos.1 and 2 who was the plaintiff No.4 in the said suit had admitted the tenancy under the plaintiff. Further, it also relied upon the pleadings in O.S. No.25807/2013 to conclude that the third defendant/petitioner herein is a tenant and is not in occupation of the property as the absolute owner. The finding rendered by the trial court does not suffer from any infirmity or illegality.

13. With regard to the issue No.2 that is the alleged claim of ownership, set up by the defendant No.3, it has concluded that the said issue is not proved in view of the fact that the defendant No.3 has failed to examine any of the witnesses or the attestors to the exhibits D10 to D12 in compliance with the provisions of Section 68 of the Evidence Act. It has also concluded that witnesses DW2 and 3 are not the attestors to the three documents and the said witnesses have also admitted in the cross examination that they are not aware of the recitals in the document and it has also taken note of the admission that they do not know who the real owner of the plaint schedule is. They have also admitted their ignorance about the contents of the said documents and hence it concluded that the depositions of DW2 and 3 in no way advances the case of the defendant No.3.

14. As regards the contention with regard to identity of the property, the said contention at the best could be described as a shot in the dark.

15. No doubt it is settled principles of law that the burden of demonstrating a fact is on the party alleging any fact. The plaintiff undoubtedly has led in voluminous evidence to demonstrate his claim of title over the suit schedule property. The defendant who has also set up his own title adverse to that of the plaintiff has not let in even a scrap of evidence to demonstrate the vesting of the title in either defendant Nos.1 and 2 or himself or in the family of the defendant Nos.1 and 2.

16. As regards the identity of the property the identity of the property situated at Bengaluru has been ascertained by the revenue authorities who have assigned a property identification number, otherwise called as PID number, in respect of all the properties in the city. That apart, there is no variance in the description of the schedule detailed in the plaint and the schedule detailed in the sale certificate issued by the court way back in the year 1935. Hence, none of the contentions canvassed by the Senior Counsel in any way discredits or controverts the findings rendered by the trial court.

17. Apart from that above, it is also relevant to note that the defendant No.3 has not approached the court with clean hands as noted by the court below. In the pleadings in the suit instituted by him, he as set up a case of sub- tenancy and thereafter proceeded to claim title in himself in the present suit. Further, it also apparent that he has used legal proceedings to brow-beat the plaintiff by instituting a suit which was wholly unwarranted. Despite the same, the defendant No.3 has proceeded to make an audacious attempt to knockoff the property.

18. In view of the above, this court is of the considered view that the judgment and decree called in question under the present Revision Petition rendered by the court of the Addl. Small Causes Judge and ACMM, Bengaluru (SCCH-13) dated 08.09.2017 rendered in S.C. No.952/2014 does not warrant any interference at the hands of the court.

Accordingly, the writ petition is rejected without being admitted.

In view of rejection of the writ petition, I.A. No.1/2017 does not survive for consideration.