Dismissed

A Narayana S/O Annu Shettigara v. Gulabi v Rai (Since Dead)

Karnataka HC9 Jun 2020RSA/1767/2006

Case brief

AI extract

What is this about?

Suit for ejectment of a tenant on the strength of a disputed rent bond. The trial court and first appellate court decreed ejectment. In this second appeal the Court upheld the finding, relying on the handwriting expert's report and its own comparison of signatures under Section 73, held there was no merger of the tenancy, and dismissed the appeal.

What the court decided

AI extract

A Narayana S/O Annu Shettigara Vs Gulabi v Rai (Since… — Landlord and Tenant | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF JUNE 2020

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BEFORE

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THE HON’BLE MR.JUSTICE NATARAJ RANGASWAMY

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REGULAR SECOND APPEAL NO.1767 OF 2006

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BETWEEN:

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MR. A. NARAYANA S/O ANNU SHETTIGARA AGED ABOUT 56 YEARS, ELECTRICIAN, SANGABETTU VILLAGE, BANTWAL TALUK, POST SIDDAKATTE, D.K.-574211.

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... APPELLANT

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(BY SRI. UDAYA PRAKASH MULIYA, ADVOCATE)

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AND:

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GULABI V. RAI (SINCE DEAD)

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KUSHALA

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35 YEARS, W/O PRAPULLA RAI MANJANADODI HOUSE, SANGABETTU VILLAGE, POST SIDDAKATTE-574211.

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VATHASALA 33 YEARS, W/O CHITRAJAN RAI,

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KADBA BILLAE, PUTTUR TALUK-574211.

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SARALA 30 YEARS, W/O DAYANANDA HEDGE, ADYAPADI VILLAGE AND POST, MANGALURU TALUK-574211.

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SHAILA D/O VENKAPPA RAI, MAILOTTU, SANGABETTU VILLAGE, POST SIDDAKATTE-574211.

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KATHYANI 25 YEARS, W/O LOKAYYA SHETTY, MAILOTTU, SANGABETTU VILLAGE, POST SIDDAKATTE-574211

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VENKATAPPA @ MAILA RAI 71 YEARS, S/O PAKEERA RAI, R/O MAILOTTU, SANGABETTU VILLAGE, POST SIDDAKATTE.

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…RESPONDENTS

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(BY SRI. M. VISHWAJITH RAI, ADVOCATE FOR RESPONDENT NOs.1 TO 4;

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SRI. SANATH KUMAR SHETTY K., ADVOCATE FOR RESPONDENT NO.5;

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VIDE ORDER DATED 23.09.2010, STEPS ARE NOT NECESSARY IN RESPECT OF RESPONDENT NO.6 SINCE HIS LEGAL REPRESENTATIVES ARE ALREADY ON RECORD)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 03.12.2005 PASSED IN R.A.NO.68/1985, ON THE FILE OF THE II ADDL. CIVIL JUDGE (SR.DN.), MANGALORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 27.07.1985 PASSED IN O.S.NO.143/1980 ON THE FILE OF THE PRL. MUNSIFF AT BANTWAL, DAKSHINA KANNADA.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 12.03.2020, THIS DAY THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This Regular Second Appeal is filed by the defendant challenging the Judgment and Decree dated 27.07.1985 passed by the Principal Munsiff at Bantwal, Dakshina Kannada, in O.S.No.143/1980 and the concurring Judgment and Decree dated 03.12.2005 passed by the Second Additional Civil Judge (Senior Division), Mangalore, in R.A.No.68/1985. The Courts below directed the defendant to quit and deliver vacant possession of the suit property to the plaintiff.

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For the sake of easy understanding, the parties

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shall henceforth be referred to as they were arrayed before the Trial Court. The appellant was the defendant, while the respondents are the legal representatives of the plaintiff before the Trial Court.

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Before the facts of the case are considered, it is relevant to note that the suit in O.S.No.143/1980 was decreed in favour of the plaintiff in terms of the Judgment and Decree dated 27.07.1985 which was challenged in R.A.No.68/1985. The First Appellate Court in terms of the Judgment and Decree dated 26.11.1990 allowed the appeal. Later, the Judgment and Decree dated 26.11.1990 in R.A.No.68/1985 was challenged by the legal representatives of the plaintiff before this Court in R.S.A.No.555/1991 which was allowed in terms of the Judgment and Decree dated 03.06.1998 and the appeal was remitted to the First Appellate Court with a direction to secure the opinion of a handwriting expert as to whether the signatures found on Ex-P19 belonged to the

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defendant or not. This Court specifically held “I would like to make one thing clear if Ex-P19 is found to contain the signature of the defendant, the plaintiff must succeed and if it does not contain the signature of the defendant, then the defendant must succeed”. The First Appellate Court thereafter secured a report from a handwriting expert who opined that Ex-P19 contained the signatures of the defendant. The First Appellate Court, thus dismissed the Appeal of the defendant in terms of the Judgment and Decree dated 27/01/2003. The defendant challenged the Judgment and Decree dated 27/01/2003 before this Court in R.S.A. No.432/2003 contending that the objections filed by him to the report of the hand writing expert was not considered. This Court noticed that the objections filed by the defendant was indeed not considered and thus allowed the appeal and remitted the case to the First Appellate Court to hear the defendant on the objections filed by him and to secure the expert before the Court for his evidence. The First Appellate Court secured the presence of the expert and examined him as PW.1 and based on the

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evidence available on record, dismissed the first appeal in terms of the impugned Judgment and Decree dated 03.12.2005. The defendant has filed this Regular Second Appeal assailing the Judgments and Decree of the Courts below decreeing the suit for ejectment of the defendant from the suit property.

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The plaint filed in O.S.No.143/1980 (old No.78/1979) would disclose that the defendant was in occupation of a residential building situate in Sy.No.217/1A of Sangabettu village which was assigned door No.1/106A on a monthly rent of Rs.30/- payable by the 5^th of every month. The defendant had executed a rent bond in favour of the plaintiff on 06.03.1978. The terms of the agreement of lease were reduced in to writing in the said rent bond and after the expiry of the contract term, the defendant continued to occupy the building as a tenant by holding over. The plaintiff terminated the tenancy of the defendant

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by a notice dated 20.12.1978 and called upon the defendant to quit and deliver vacant possession of the

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building by 06.02.1979. The plaintiff claimed that the defendant instead of complying with the notice demand, issued a false and a frivolous reply contending that he was in possession of the building since the year 1973 and that he purchased the plot in Sy.No.217/1A in terms of a sale deed dated 04.12.1978. The defendant is stated to have contended that the plaintiff had no title to the suit schedule property. The plaintiff therefore claimed that the defendant having once accepted his tenancy in respect of the suit premises by a rent bond dated 06.03.1978 was estopped from denying the title of the plaintiff. The plaintiff therefore contended that the defendant is liable to quit and deliver vacant possession of the suit schedule property. The plaintiff also contended that there were other portions of the building which were in her occupation and that the other portions of the premises were leased to other tenants and a portion of the property was also utilized by the plaintiff for her own needs and necessities. Therefore the plaintiff sought for a Judgment and Decree directing the defendant to surrender peaceful possession of the tiled

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building bearing door No.1/106A of Sangabettu village situate in Sy.No.217/1A and for arrears of rent at the rate of Rs.30/- per month from 06.03.1978 till 06.02.1979 and future mesne profits at the rate of Rs.30/- per month till delivery.

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The defendant filed his written statement contending that the plaintiff had no title to the suit property and the defendant had not executed the rent bond as alleged by the plaintiff. The defendant claimed that he was not a tenant under the plaintiff and claimed that the said rent bond was false and a frivolous document and that the same was not genuine. The defendant claimed that the suit premises was in his occupation from the year 1973. He contended that the land in Sy.No.217/1A originally belonged to Mr.Paul D’costa and Mr.Gregory D’costa and at an oral partition between them, the property comprised in Sy.No.217/1A fell to the share of Mr.Paul D’Costa and that Mr.Paul D’Costa sold it to the defendant in terms of a sale deed dated 04.12.1978. The

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defendant claimed that the plaintiff had conspired with Mr.Gregory D’Costa to concoct documents to seem as if the land bearing Sy.No.217/1A was initially rented out to Mrs.Bee Fatuma / Patuma and that later she constructed a building and let it out to the plaintiff. The defendant contended that the said Mr.Gregory D’Costa had never been in possession of the said premises and therefore he could never put the plaintiff in possession of the said property. He further alleged that the said Mr.Gregory D’Costa was allotted some other portion and no portion of Sy.No.217/1A or the superstructure standing thereon fell to the share of said Mr.Gregory D’Costa. He alleged that when the defendant obtained the plot on ground rent in the year 1973, the plot was vacant. The defendant constructed the house at a cost of Rs.6,000/- and he obtained electricity to the premises. He would therefore contend that the plaintiff is not entitled for the possession of the suit property and had no right to terminate the tenancy and had no right to even claim mesne profits.

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Based on the rival contentions, the Trial Court framed the following issues:

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“(1). Whether the rent bond dated

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6.3.1978 is true, valid and binding?

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(2). Whether the quit notice is valid?

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(3). Whether the defendants plea is barred by estoppel?

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(3a). Whether the defendant’s tenancy is forfeited by the plea of denial of plaintiff’s title?

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(3b). Whether the plaintiff can seek possession on the plea of forfeiture raised in Issue (3a)?

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(4). Whether the plaintiff is entitled for the arrears of rent and mean profits?

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(5). Whether the alleged improvement by the defendant is true?

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(6). Whether the plaintiff is entitled for possession?

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(7). To what relief the parties are entitled?”

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7. The plaintiff examined her husband as PW.1

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and three witnesses as PWs.2 to 4 and marked Exhibits P1 to P33 while the defendant was examined as DW.1 and two other witnesses as DWs.2 and 3 and they marked Exhibits D1 to D21.

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The Trial Court compared the signatures of the defendant on Ex-P19 with the admitted signatures of the defendant on record and also considered the attendant circumstances and decreed the suit for the relief of ejectment.

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The defendant filed R.A. No.68/1985 before

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the First Appellate Court which was allowed in terms of the Judgment and Decree dated 26.11.1990. The plaintiff thereafter challenged the Judgment and Decree of the First Appellate Court in R.S.A No.555/1991 before this Court. This Court in terms of the Order dated 03.06.1998, directed the First Appellate Court to send Ex-P19 for comparison by a handwriting expert. Accordingly, the First Appellate Court referred the disputed document Ex-P19 for

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examination by a handwriting expert. The hand writing expert gave his opinion that Ex-P19 contained the signature of the defendant. Therefore, the First Appellate Court dismissed the first appeal in terms of the Judgment and Decree dated 27.01.2003. The defendant filed R.S.A No.432/2003 challenging the Judgment and Decree of the First Appellate Court dated 27.01.2003. This Court directed the First Appellate Court to hear the objections filed by the defendant to the report of the Commissioner and to give opportunity to the defendant to substantiate his contentions by permitting the defendant to secure the presence of expert for his evidence. Accordingly, the First Appellate Court recorded the evidence of the Commissioner as PW.1 on 29.11.2005. The Commissioner who was examined gave his report stating that the signatures found on Ex-P19 were the signatures of the defendant. The First Appellate Court after considering the evidence of the Commissioner in terms of its Judgment and Decree dated 03.12.2005, dismissed the appeal. It is against the aforesaid Judgment and Decree dated

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03.12.2005 that the defendant has filed this Regular Second Appeal.

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This appeal was admitted on 09.10.2012 to consider the following substantial questions of law:

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“a). Whether the Courts below committed an error in accepting the report of handwriting expert without any independent and reliable corroboration, in arriving at a finding that the rent bond (Ex.P19) is executed by the appellant ?

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b). Whether the Courts below erred in holding that the sale deed dated 04.12.1978 (Ex.D13) is not proved without there being an issue on that regard and also without an opportunity to the appellant to prove the same?

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c). Whether the finding of Courts below that the appellant is tenant of the land in question is perverse and contrary to the material on record ?”

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I have heard the learned Counsel for the

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defendant / Appellant and the learned counsel for the legal representative No.5 of the deceased plaintiff / respondent No.5. I have also perused the records of the Courts below and also their Judgments and Decrees. I have also perused the report of the Commissioner and his evidence. I have also considered the grounds urged by the appellant in his appeal memorandum.

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The learned counsel for the defendant would contend that there was no relationship of land lord and tenant between the plaintiff and defendant which was a sine qua non in a suit for ejectment. He contended that the plaintiff was never the owner of the suit property and thus could not claim any title to the suit property. He further contended that the Courts below ignored the fact that Ex-P21 and Ex-P22 were unregistered documents which could not create any right or interest in the plaintiff in respect of the suit property and therefore, the Courts below were not correct in holding that the plaintiff had a

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right to present a suit for ejectment. He further contended that the report of the Commissioner had only a persuasive value and without any corroborating evidence, the report of the expert was itself insufficient to establish the relationship of landlord and tenant between the plaintiff and the defendant. He further contended that even if the signatures of the defendant were found on Ex-P19 that in itself would not establish the execution of the document. He further argued that the report of the expert was not reliable as the expert himself admitted that there were dissimilarities in the signatures on Ex-P19 and the signatures of the defendant that were obtained before the Court for the purpose of comparison by the expert. Further he contended that his tenancy rights stood merged on his acquisition of title of the land in Sy.No.217/1A from Paul D’ Costa in terms of a sale deed dated 04.12.1978 and thus there could be no action for ejecting him from the suit premises. He also contended that the Courts below could not have rolled out findings that impinged upon his rights under the sale deed dated 04.12.1978.

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The learned counsel for the appellant / defendant relied upon the Judgment of this Court in the case of Maria Piedade D’Souza and others Vs. M. Narayanaswamy and another reported in 1983 SCC Online Karnataka 24 concerning the importance that could be attached to the opinion of a handwriting expert. He also relied upon the Judgment of the Apex Court in the case of S. Gopal Reddy vs. State of Andhra Pradesh reported in AIR 1996 SC 2184 to contend that the report of the hand writing expert should be corroborated by other evidence.

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On the contrary, the learned counsel for the legal representative No.5 of the plaintiff would contend that Ex-P19 which was the rent bond executed by the defendant was sufficiently proved and therefore, not withstanding the execution of the sale deed dated 04.12.1978 (Ex-D13) by the predecessor-in-title of the defendant in favour of the defendant, there was no merger of the right of the tenancy in favour of the defendant and

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therefore, the defendant was first bound to quit and deliver vacant possession of the suit property and thereafter to make a claim. In order to buttress his contention, the learned counsel for the plaintiff relied upon

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the Judgment of the Apex Court in the case of Sant Lal Jain vs. Avtar Singh reported in AIR 1985 SC 857.

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15. Having regard to the arguments canvassed by

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the learned counsel for the defendant / appellant, the following additional substantial question of law would arise for consideration:-

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“Whether there was a merger of the tenancy of the defendant after the defendant purchased the suit property, not from his lessor but from a person having title to the suit property in terms of ExhibitD13?”

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Exhibits P1 to P5 and P13 are the receipts for

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acknowledging the payment of property tax in respect of the suit property. Exhibits P7 to P12 are the reminders

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issued by the Karnataka Electricity Board to pay the arrears of electricity consumption charges. Exhibit P14 is the RTC of Survey No. 217/1A in the name of Gregory D’ Costa for the period from 1968-69 to 1970-71. Exhibit P15 is the notice issued by the plaintiff to the defendant to quit and deliver the vacant possession of the suit property. Exhibit P16 is the postal acknowledgment. Exhibit P17 is the assessment register extract for the year 1976-77. Exhibit P18 is the assessment register extract for the year 1975-76 which indicates the name of the occupier as Venkappa Rai, who is the husband of the plaintiff. Exhibit P19 is the rent bond dated 06.03.1978 executed by the defendant in favour of the plaintiff. Exhibit P20 is the rent note executed by the plaintiff in favour of one Kamala Hengsu. Exhibit P21 is the rent note executed by Gregory D’Costa to Bee Fathuma. Exhibit P22 is the transfer document by Bee Fathuma to the plaintiff. Exhibits P23 to P28 are the rent receipts executed by Gregory D’Costa in favour of the plaintiff acknowledging the receipt of rent from the year 1974 till the year 1978. Exhibit P29 is the

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sale deed dated 21.02.1979 executed by Gregory D’Costa

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in favour of the plaintiff. Ex.P30 is the house tax assessment list (revised) for the year 1980-81, wherein at Sl. No.127, the name of the husband of the plaintiff is shown as the owner and the name of the defendant is shown as the occupier in respect of the property bearing No.106A; Ex.P31 is the house tax assessment list (revised) for the period from 1977-78 to 1980-81; Ex.P32 is the house tax assessment list for the period from 197374 to 1976-77. Ex.P33 is the house tax assessment list extract for the years 1974-75, 1977-78 and 1981-82 in respect of property No.1-106A wherein the name of the husband of the plaintiff is shown as the owner and the name of the defendant is shown as the occupier.

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In so far as the defendant is concerned, Exhibit D1 is the written statement of Gregory D’Costa filed in O.S. No. 229/1981. Exhibit D2 is the house tax receipt dated 20.10.1977 paid by the defendant. Exhibits D3, D4 and D5 are the house tax receipts for the years 1978-79,

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1979-80 and 1980-81 up to 31.03.1981 respectively. Exhibit D6 is the ration card which shows the transaction in the year 1977 at Door No. 1-106A. Exhibit D7 is the ground rent ( sthala baadige) receipt by Paul D’Costa in respect of rent with effect upto 05.05.1974. Exhibits D8 to D12 are similar such receipts executed by Paul D’Costa acknowledging the receipt of rent till 04.12.1978. Exhibit D13 is the sale deed executed by Paul D’Costa in favour of the defendant on 04.12.1978. Exhibit D14 is the settlement register extract. Exhibit D15 is enumeration form in respect of house No.1-106A where the defendant resided. Exhibit D16 is the tax receipt dated 20.10.1981 paid by the defendant. Exhibit D17 is one such receipt dated 14.03.1983. Exhibit D18 is the Savings Bank Account pass book in the name of the defendant. Exhibit D19 is the notice issued by the Tahsildar. Exhibit D20 is the reply of the defendant to the quit notice issued by the plaintiff. Exhibit D21 is the rent chit issued by Paul D’Costa to the defendant dated 05.05.1973.

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In order to ascertain the proceedings in O.S. No.229/1981 (filed by Paul D’Costa against Gregory D’Costa), this Court secured the entire Trial Court records in O.S. No.229/1981 and it was found that the said suit was filed by Paul D’Costa against Gregory D’Costa for partition and separate possession of the properties that fell to them jointly. In the said suit, Paul D’Costa in his plaint stated as follows:-

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“ Survey No. 217/A was in the possession of this plaintiff and he has sold the same to A. Narayana as per a Registered sale deed. Thereafter it is A. Narayana who is in possession of the said property”.

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In reply thereto, the defendant (Gregory D’Costa) in his written statement filed on 27-07-1982 mentioned as below:-

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“The immovable properties shown in Schedule Z here below were kept joint with equal rights in the same to the plaintiff and defendant, in as much as the said property was a house-site property and it had been let out to

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third parties and the rentals received out of the same shall be shared equally between them”

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In Paragraph No.13 of his Written statement,

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he has stated as follows:-

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“ S. No. 217/1A was the property allotted to the joint shares of the plaintiff and the defendant, and the plaintiff alone was not in possession of the same. This defendant has sold his right in the said property in favour of one Smt. Gulabi V. Rai by means of a registered Sale Deed dated 21.02.1979”

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Schedule-Z mentioned in the written statement

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was the property bearing Survey No. 217/1A measuring 14 cents with tiled building and existing easementary rights.

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22 . It is found that the suit in O.S. No.229/1981

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was decreed after contest and it was declared that both Paul D’Costa and Gregory D’Costa were entitled to half share each in the suit ‘A’ schedule properties. It is to be noted that by the time this suit was instituted, Paul D’Costa and Gregory D’Costa had transferred the land in

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Sy.No.217/1A to the defendant and Plaintiff respectively and therefore this land was not the subject matter of the suit for partition. Later a final decree proceedings was initiated in F.D.P. No.8/2000. In the meanwhile, Paul D’Costa expired and his son was brought on record. In the Final Decree Proceeding, the parties reported a compromise on 01.03.2008, in terms of which, they divided all the properties but did not mention anything concerning the property bearing Survey No. 217/1A of Sangabettu village.

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Thus, one fact is certain from the plaint and written statement filed in O.S.No.229/1981 that both Paul D’Costa and Gregory D’Costa had an undivided right, title and interest in the land bearing Sy.No.217/1A of Sangabettu village and in view of the Judgment and Decree passed by the Trial Court in O.S.No.229/1981, it is clear that both Paul D’Costa and Gregory D’Costa possessed an equal share in all the other properties and consequently, in the absence of any agreement to the

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contrary, it is clear that both of them were entitled to an equal share in the land bearing Sy.No.217/1A. While the plaintiff claims that Gregory D’Costa rented it out to Bee Fathuma who later transferred her right to the plaintiff, the defendant claimed that Paul D’Costa had rented it out to him in the year 1973, prior to the rental agreement in favour of Bee Fathuma. The Plaintiff claimed that he rented out a portion of the construction to the defendant which was evidenced by a rent note dated 06.03.1978 but the defendant denied the same. The defendant thereafter purchased the entire extent from Paul D’Costa in terms of the sale deed dated 04.12.1978 while the plaintiff purchased the entire extent from Gregory D’Costa on 21.02.1979. The plaintiff has filed this suit on the basis of the rent agreement dated 06.03.1978 allegedly executed by the defendant and contended that the occupation of the suit premises on rent under the plaintiff would not get obliterated by the defendant purchasing the property from Paul D’Costa.

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Thus, the reliefs sought for by the plaintiff in the instant suit is not based on title but is based on the possessory right of a purported lessor. Having regard to the averments in the plaint, the plaintiff was a sub-lessee under Bee Fathuma and later he rented out the suit property to the defendant. The land lord of Bee Fathuma (Gregory D’Costa) who deposed as PW.3 acknowledged this and he did not object to this. On the contrary, PW.3 claimed to have received the ground rent from the plaintiff.

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The RTC for the years 1968-69 to 1970-71 in respect of the land bearing in Sy.No.217/1A discloses the name of Mr.Gregory D’Costa as the khathedar, thereby proving the title of the predecessor of the plaintiff. In terms of Ex-P21, Mr.Gregory D’Costa is stated to have leased out the vacant land in Sy.No.217/1A on ground rent at Rs.20/- per year in favour of Mrs.Bee Fathuma on 26.11.1973. Later, Mrs.Bee Fathuma is stated to have constructed a house on the aforesaid land and thereafter,

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she transferred her leasehold right to the plaintiff on 14.08.1974 in terms of Ex-P22, subject however to the condition that the plaintiff paid the annual ground rent to Mr.Gregory D’Costa. Thereafter, the plaintiff is stated to have developed the property by putting up additional construction, enclosing the suit property by a compound wall, planting coconut saplings etc. Later, the plaintiff claimed that she rented out a portion of the house to the defendant assigned as 1-106/A which was evidenced by a rent bond dated 06.03.1978 (Ex-P19) and contemporaneously rented out another portion assigned as 106/B to a lady named Kamala Hengsu in terms of Ex-P20. The plaintiff claimed that he had paid the ground rent to Mr.Gregory D’Costa every year in terms of Exs-P23 to P28. The plaintiff also claimed that he had obtained electricity connection to the house where the defendant was residing. The plaintiff alleged that the defendant failed to pay the monthly rent @ Rs.30/- per month which compelled the plaintiff to terminate the tenancy in terms of Ex-P15. The plaintiff claimed that he had paid the property tax in

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respect of the house in Sy.No.217/1A in terms of Exs-P1 to P5, P13 and Exs-P30 to P33 from the year 1973-74 to 1981-82. He further claimed that the name of the occupant as shown in the assessment register for the years 1975-76 and 1976-77 (Exs-P17 and P18) was Venkappa Rai, the husband of the plaintiff. He claimed that Ex-P6 was the electricity bill and Exs.P-7 to P-12 were the reminders by the Karnataka Electricity Board calling upon the plaintiff to pay the electricity bill.

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26. On the other hand, the defendant claimed that

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he had taken the land in Sy.No.217/1A on ground rent from Paul D’Costa on 05.05.1973 in terms of a rent note at Ex-D21 and that he constructed a building thereon at a cost of Rs.6000/-. He claimed that he had paid the yearly rent at the rate of Rs.14/- to Paul D’Costa which is evidenced by receipts that were marked as Exs-D7 to D12. He claimed that he too had paid the property tax on 20.10.1977 in terms of Ex-D2 and during 1979 and 1980 in terms of Exs-D3 to D5 and during 1982 and 1983 in

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terms of Exs-D16 and D17. He stated that the ration card at Ex-D6 indicated that the defendant was residing in the house numbered as Door No.1-106A and that the defendant had bought essential commodities in the year 1977. He also placed on record Ex-D18 which is the savings account pass book. Further he marked an enumeration form for the year 1977 which disclosed the name of the defendant in respect of the suit house.

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The plaintiff’s husband was examined as PW.1 and he consistently claimed that the defendant was a tenant in the suit premises. PW.2 was a witness to Exs-P19 and P20 (rent bonds) and his evidence too is consistent. PW2 was an erstwhile tenant in a part of the premises in Sy.No.217/1A and later he became a neighbour of the plaintiff. PW.3 is Gregory D’Costa who admitted that a suit was filed by Paul D’Costa for partition. He admitted that the land in Sy.No.217/1A was jointly owned by him and Paul D’Costa. He however claimed that he had rented out the vacant land to BeeFathuma and later BeeFathuma

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and her husband constructed a house. He also admitted that BeeFathuma transferred the house constructed on the land to the plaintiff and that he was receiving the yearly rent from the plaintiff. He claimed that the plaintiff had rented out the suit premises to the defendant on a monthly rent. PW.4 was the Village Accountant of Sangabettu who deposed about the assessment of the house bearing No.106/A where the defendant was residing which incidentally is also the suit property. He deposed that one Kamala was residing in the other portion of the property.

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The defendant who was examined as DW.1

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admitted that the house that he was in possession was assigned No.1-106/A. He admitted that Kamala was residing in a portion of the house but he claimed that Kamala was inducted by him. He failed to produce any proof in this regard. He claimed that he constructed the building in the year 1974-75 and had got the electrical wiring done but claimed that the installation was not

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serviced. The defendant though denied that the installation was serviced at the instance of the plaintiff, but when PW.1 was cross-examined, the defendant though noticed Exs-P6 to P12, did not dispute that the premises was serviced with electricity and that the meter number was 164.

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DW.2, who was Paul D’Costa, deposed on 06.06.1984 and improved his version from what he had stated in his written statement in O.S.No.229/1981 and claimed that he had rented out Sy.No.217/1A on ground rent to the defendant and that the defendant had constructed a building thereon. He admitted that the aforesaid land belonged to him and his brother Gregory D’Costa and that there was no partition amongst them.

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DW3 - Sanjeeva Chowta was a witness to the rent agreement Ex-D21 and he deposed about the execution of the agreement by Paul D’Costa in favour of the defendant.

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The aforesaid facts would indicate beyond doubt that both Paul D’Costa and Gregory D’Costa had an undivided right, title and interest in the property bearing Sy.No.217/1A. The defendant and the plaintiff having purchased the land bearing Sy.No.217/1A from Paul D’Costa and Gregory D’Costa respectively would therefore undoubtedly become joint tenants in respect of Sy.No.217/1A of Sangabettu. However, the question in the instant suit is whether the plaintiff had proved the tenancy of the defendant in the suit premises. The only document that is available on record is Ex-P19 which is the rent agreement allegedly executed by the defendant in favour of the plaintiff, which is stoutly denied by the defendant. One fact that cannot be lost sight of is that there was no transaction between the plaintiff and the defendant prior to 06.03.1978 when Ex-P19 is stated to have been executed by the defendant. The defendant did not quote any incident or circumstance that probabilized the plaintiff to be aware of the signature of the defendant, for her to morph it on Ex-P19. The plaintiff had caused a notice of

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termination of tenancy (Ex-P15) wherein she had referred to the rent agreement dated 06.03.1978 (Ex-P19). The expert who gave his report indicated that there was no imitation of the admitted signatures of the defendant. The expert has found that there were various similarities in the individual writing habit of the admitted and disputed signatures. PW.1 was though cross examined, nothing was extracted from him to indicate that there was an imitation of the signatures found on Ex-P19. On the contrary, the cross examination of PW.1 was more directed to demonstrate that the expert did not follow a particular protocol in examining the signatures. No doubt the expert admitted that the disputed signatures and the signatures obtained before the Court nearly after 20 years were not similar but this cannot be leveraged by the defendant to contend that the report of the examiner has to be ignored. The expert has laboured hard in comparing the signatures and recording a finding based on the writing skills found in the signatures. This Court in exercise of its power under Section 73 of the Indian Evidence Act did compare the

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signature of the defendant found on Ex-P19, the signatures found on the vakalath, written statement of the defendant and other affidavits filed before the Trial Court which all indicate that the signatures found on Ex-P19 are the signatures of the defendant. The defendant who gave his specimen signature before the Court on 16.03.1999 differed completely from the signatures of the defendant found contemporaneously in the records of the First Appellate Court. Thus, the First Appellate Court was thoroughly justified in accepting the report of the expert and the substantial question of law (a) framed by this Court is answered accordingly.

¶143

Yet another circumstance that goes against the defendant is the rent agreement (Ex-D21) entered into between Paul D’Costa and the defendant on 05.05.1973 that is a few months prior to Ex-P21 which was the rent agreement between Gregory D’Costa and BeeFathuma. ExD21 was drawn on a stamp paper that stood in the name of Monti Hengsu who was a stranger and she was not

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examined before the Court. This therefore generates doubt regarding the legitimacy of Ex-D21.

¶146

The husband of the plaintiff who was examined as PW1 admitted that Mr.Paul D’Costa had sold the entire land to the defendant in terms of a sale deed dated 04.12.1978 (Ex-D13). The plaintiff could not dispute the title of Mr.Paul D’Costa, more particularly in the light of the finding recorded in O.S.229/1981, to convey his interest in the suit property and at any rate, the Courts below were not justified in commenting upon the validity of the sale deed dated 04.12.1978 by which the defendant purchased the entire extent of 14 cents in Sy.No.217/1A. Thus, the substantial question of law (b) framed by this Court is answered accordingly.

¶147

In so far as the question that the rights of the defendant as a lessee in the suit premises merged upon the defendant purchasing the suit property from Paul D’Costa, this Court has now held that the defendant was a tenant under the plaintiff. In the facts of this case, the

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rights of the plaintiff as the lessor existed unabated notwithstanding the defendant purchasing the property from Mr.Paul D’Costa and therefore the right of the defendant did not merge. If the defendant came into possession of the suit premises as a tenant, his position continues as such and he has to restore the possession of the property from whom he received it. The rules of estoppel contemplated under Section 116 of the Evidence Act is applicable in the present case and the exception for the applicability of this rule, carved out by the Apex Court in D.Satyanarayana vs. P.Jagadish reported in 1987

¶150

(4) SCC 424 , cannot be pressed into service since the present proceedings is not by a paramount land lord. Consequently, the question of law framed by this Court is answered accordingly. The defendant can always and is at liberty to assert his proportionate title to the suit property and recover back possession of the proportionate suit property from the plaintiff based on the sale deed dated 04.12.1978.

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35. Consequently, this Regular Second Appeal is

¶153

dismissed. However, the defendant is entitled to work out his remedy to recover possession of his share in the suit property by an appropriate suit for partition based on the sale deed dated 04.12.1978 (Ex-D13). In so far as the claim for mesne profits is concerned, the plaintiff was at the most entitled for mesne profits from 06.03.1978 till 04.12.1978 at Rs.30/- per month, since the defendant had acquired proportionate right, title and interest in the land in Sy. No.217/1A of Sangabettu village. As the mesne profits would be too less, this Court would not grant any order regarding mesne profits. Likewise, the claim for future mesne profits is also rejected. Parties to bear their own costs.

¶154

Pending application, if any, shall stand rejected.

¶155

sma/mbb

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Sd/- JUDGE

A Narayana S/O Annu Shettigara v. Gulabi v Rai (Since Dead)

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A Narayana S/O Annu Shettigara v. Gulabi v Rai (Since Dead)

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