Dismissed

Sri Nawaz Pasha v. Sri M Om Prakash

Karnataka HC10 Nov 2023RFA/67/2021

Case brief

AI extract

What is this about?

The appeal challenged a trial court decree for ejectment and arrears of rent. The High Court upheld the decree, finding the trial court correctly concluded the defendant was a tenant under the plaintiffs and his tenancy was validly terminated, with the defendant estopped from denying title under Section 116 Evidence Act.

What did the court decide?

Appeal dismissed; appellant granted six months (up to 10.05.2024) to vacate subject to payment of all arrears of rent and continuing to pay monthly rent as due.

Sri Nawaz Pasha Vs Sri M Om Prakash — Landlord and Tenant | Karnataka HC (2023)

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NC: 2023:KHC:40790 RFA No. 67 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO. 67 OF 2021 (EJE)

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BETWEEN:

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SRI NAWAZ PASHA SON OF SRI FAZLU RAHMAN, AGED ABOUT 59 YEARS, M/S NAWAZ PASHA AND COMPANY, PROPERTY NO.110, POLICE ROAD, BENGALURU-560 053.

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…APPELLANT

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(BY SRI. C SHANKAR REDDY.,ADVOCATE)

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AND:

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SRI M OM PRAKASH SON OF LATE M S G SETTI,

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AGED ABOUT 70 YEARS,

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Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

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SMT SUVRATHA W/O C S GOPALAKRISHNA, AGED ABOUT 58 YEARS,

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SMT BHANUMATHI SINCE DEAD BY L.R’S

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3(A) KUM.S.PRAGATHI D/O LATE P. SATHIAM AGED ABOUT 24 YEARS.

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ALL THE RESPONDENTS ARE RESIDING AT NO.14, PAMPA MAHAKAVI ROAD SHANKARPURAM, BASAVANAGUDI BENGALURU – 560 004.

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…RESPONDENTS

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(BY SRI. M.VEERABHADRAIAH.,ADVOCATE FOR CAVEATOR R-1 & R-2 SRI. B.E. SHREEDHAR, ADVOCATE FOR R-3(A))

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THIS RFA IS FILED UNDER ORDER XLI RULE 1 R/W. SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 30.06.2020 PASSED IN OS NO.2755/2014 ON THE FILE OF THE XXV ADDL.CITY CIVIL AND SESSIONS JUDGE, AT BANGALORE CITY -CCH NO.23 DECREEING THE SUIT FOR VACANT POSSESSION AND RECOVERY OF ARREARS OF RENT.

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THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal by the defendant in O.S.No.2755/2014 is directed against the impugned judgment and decree dated 30.06.2020 passed by the XXV Addl. City Civil & Sessions Judge, Bengaluru City, whereby the said suit filed by the respondents – plaintiffs against the appellant – defendant for ejectment / eviction in relation to the suit ‘B’ schedule property and for recovery of arrears of rent of Rs.1,62,500/- from the appellant was decreed by the Trial Court in favour of the respondents – plaintiffs against the appellant – defendant.

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Heard learned counsel for the appellant and learned counsel for the respondents and perused the material on record.

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For the purpose of convenience, the parties are referred to by their respective ranking before the trial court.

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The material on record discloses that the respondents

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– plaintiffs instituted the aforesaid suit against the appellant – defendant interalia contending that the suit schedule property was originally owned and possessed by Smt. M.R. Vijaya Lakshmi, who acquired the same under registered Will dated 13.08.1992, pursuant to which, the khatha was registered in her name and was paying taxes. It was contended that upon demise of Smt.M.R.Vijaya Lakshmi on 14.01.2013 the plaintiffs being her heirs and legal representatives succeeded to her estate including the suit schedule ‘A’ property and khatha in respect of suit schedule ‘A’ property was registered in the name of the plaintiffs and they were paying taxes.

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The plaintiffs contended that the Bangalore Metro Rail Corporation Limited acquired a portion of the schedule ‘A’ property for the purpose of Metro Rail Scheme and the acquisition proceedings were in progress. It was contended that the defendant was a tenant under Smt. M.R.Vijaya Lakshmi in respect of portion of schedule ‘A’ property i.e., Shop No.4, which was being used by the defendant for carrying out fruit business. After referring to the various other litigations including suits before the Trial Court and

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the writ petition before this Court, the plaintiffs issued a statutory notice under Section 106 of the Transfer of Property Act dated 03.02.2014 and defendant after receiving the same, got issued a reply dated 18/20.02.2014 repudiating the claim of the plaintiffs, who instituted the present suit for eviction and other reliefs.

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Appellant – defendant filed written statement denying ownership of Smt. M.R.Vijaya Lakshmi in relation to the suit schedule property as well as relationship of Landlord and tenant between the plaintiffs and the defendant, the appellant – defendant denied and disputed all the allegations and claim put-forth by the plaintiffs and contended that the appellant was in possession of a portion of schedule ‘A’ property, which was different from the property claimed by the respondents – plaintiffs. It was specifically contended that appellant – defendant was not due to the respondent – plaintiff towards arrears of rent and that he had paid rent earlier in cash to Sri. M. Rajashekar husband of Smt.M.R.Vijaya Lakshmi. It was also contended that there was serious dispute regarding nature and identity of the suit schedule property and the present suit for eviction and ejectment simpliciter without seeking declaratory and other comprehensive relief by

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paying Court fee was not maintainable and the same was liable to

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be dismissed. It was also contended that the suit schedule property belonged to one Smt. N. Devarajamma, who was not related to the plaintiffs to the knowledge of the defendant.

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Based on the pleadings of the parties, the Trial Court

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framed the following issues and additional issues:-

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“ (1) Is there exists the jural relationship of landlords and tenant in between the plaintiffs and defendant ?

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(2) Whether the plaintiffs prove they have legally and validly terminated the tenancy of the defendant ?

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(3) Whether the defendant proves that the suit of the plaintiffs is not maintainable as contended by him in para No.19 of his written statement ?

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(4) Whether defendant proves that the court fee paid by the plaintiffs is insufficient ?

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(5) Whether the plaintiffs are entitled for arrears of rent of Rs.1,62,500/- ?

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(6) What order or decree ?

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On behalf of the plaintiffs, plaintiff No.1 got examined

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herself as PW1 and Ex.P1 to Ex.P17 were marked while defendant examined himself as DW1 and one official from the BMRCL as

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DW2 and documentary evidence at Ex.D1 to Ex.D18 were marked on behalf of the defendant.

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After hearing the parties, the Trial Court answered all the issues in favour of the plaintiffs and decreed the suit directing the appellant – defendant to vacate and deliver vacant possession of the suit schedule property to the plaintiffs, aggrieved by the impugned judgment and decree passed by the Trial Court, the appellant – defendant is before this Court by way of the present appeal.

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After hearing both sides, the following points arise for consideration in the present appeal:-

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(i) Whether the trial court was justified in passing a decree of eviction in favour of the respondents – plaintiffs against the appellant – defendant?

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(ii) Whether the impugned judgment and decree passed by the trial court warrants interference by this Court?

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Since both the points are interlinked with each other, they are taken up for consideration together.

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A perusal of the material on record will indicate that it is the specific contention of the plaintiffs / landlords that the appellant – defendant was a tenant under them in respect of the suit schedule premises and his tenancy under the plaintiffs having been terminated by issuance of notice dated 03.02.2014, since the defendant did not comply with the demand made therein nor vacated the suit schedule premises, the plaintiffs instituted the instant suit against him. The said contention was disputed by the appellant – defendant, who specifically contended that there was no jural relationship of landlord and tenant between the plaintiffs and defendants and that one N.Devarajamma was the owner and landlord of the suit schedule premises. The defendant also contended that the suit was not maintainable since there was a serious dispute regarding the identity of the suit schedule premises, which had been acquired by the BMRCL for the purpose of its project. So also, the defendant contended that there was no valid termination of his tenancy under the plaintiffs. In view of the said contentions, the trial court framed issue No.1 and additional issues

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1 and 2 in relation to termination of tenancy, existence of jural relationship of landlord and tenant between plaintiffs and defendant and maintainability of the suit as contended by the defendant. In

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this context, the trial court considered and appreciated the pleadings and evidence of the parties and answered the said issues in favour of the plaintiffs against the defendant by holding as

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under:-

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“ 15. Issue No.1 to 3: Since all these issues are inter-connected therefore they are taken up together for common consideration in order to avoid repetition of facts and evidence and also for the sake of convenience.

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16. The plaintiffs have filed this suit for ejectment and for recovery of arrears of rent. It is the specific contention of the plaintiffs is that A schedule property originally belongs to Smt. M.R.Vijayalakshmi. B schedule property is The part and parcel of the A schedule property. It is the specific contention of the plaintiffs is that the defendant who was in possession of B schedule property as a tenant under Smt. M.R.Vijayalakshmi continued a s a tenant under the plaintiffs after the death of Smt.M.R.Vijayalakshmi. It is the case of the plaintiffs is that Smt.M.R.Vijayalakshmi died on 14.1.2013 leaving behind the plaintiffs as her successors and legal representatives for her entire estate including A property. On the other hand the defendant has taken contention that the property which is in possession is belongs to one N.Devarajamma and the same has got nothing to do with Smt.M.R.Vijayalakshmi. The defendant has taken contention that the property which was given by

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Smt.M.R.Vijayalakshmi to him for rent was already acquired by BMRCL for Metro Rail Project. The plaintiffs in order to establish their case relied upon the evidence of PW1 and documents marked at Ex.P1 to Ex.P17.The defendant in Order to substantiate his contention relied upon the evidence of DW1 and the documents Ex.P1toEx.P18.

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17. PW1 Smt.Vidyavathi plaintiff No. 1 and GPA holder of plaintiff No.3 and 4 in her affidavit filed in lieu of examination-in-chief has reiterated the plaint averments. In her examination-in-chief she has stated that her mother Smt.M.R.Vijayalakshmi @ Adilakshmi W/o M.Rajashekar is the owner of the immovable property bearing No.110 (new No.103) situated at Police road, measuring 8341.50 sq.ft. comprising ground and first floor commercial building, in the ground floor 16 commercial shops are located and in the first floor 2 commercial shops are located. She states that her mother acquired the title of the property through the registered Will dated 13.8.1992 executed by Smt.P.C.Sundramma. She states that the suit schedule A property measuring 8341.50sq.ft. which belongs to her mother. The plaintiffs being the success or of said Smt.M.R.Vijayalakshmi got joint khatha from the BBMP. She further deposed that defendant is the tenant under her mother viz. Smt.M.R.Vijayalakshmi in a portion of schedule A property, i.e., shop No.4, RCC roofed building measuring, 17 x 22 ½ sq. ft totally measuring 384.2 sq.ft which is mentioned in schedule B

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property.. It is further deposed that after the death of her mother they approached the defendant in the month of February 2013 and requested him to vacate the premises within 60 days enable them to construct new commercial building to accommodate their children to carry their traditional business of selling of silk saries. Then the defendant orally demanded six months time to vacate the premises. For the same they agreed and granted time till September 2013 and also demanded him arrears of rent at the rate of Rs.2500 per month. She states that certain portion of the land in schedule A property was acquired by the Bangalore Metro Railway Corporation Limited for public purpose. She has deposed that in the month of December 2013 plaintiff No.2 received notice from Hon'ble High Court of Karnataka in W.P.No.5154051549/2013.Then they came to know that the said Writ petitions were filed by the tenants. She states that they also came to know that the defendant has filed suit in O.S.No.7353/2009 praying for grant of permanent injunction. She has deposed that they got issued notice under section 106 of TP Act to the defendant through their advocate on 3.2.2014, but same was retuned as not claimed. She has deposed that the suit property mentioned in O.S.No7353/2009 and in the present suit are one and the same. She states that the admissions made in O.S.No.7353/2009 and W.P.No.51540 -51549/2003 it self Establishes the landlord and tenant relationship. She has got marked the documents at Ex.P1 to 17.The

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document Ex.P1 is the copy of GPA executed by plaintiff No. 3 and 4 in favour of plaintiff No. 1 / PW1.Ex.P2 is the copy of genealogical tree.Ex.P3 is the copy of Will.Ex.P4 is the copy of khatha certificate, Ex.P5 is the copy of death certificate of Smt.Vijayalakshmi,.Ex.P6 is the khatha certificate of property bearingno.103(old no.117) , extract.Ex.P7 is the khatha extracts . Ex.P8 is the notice dated 28.3.2014 issued by the BBMP. Ex P9 is the death certificate of plaintiff No.2. Ex P10 is the copy of memorandum of Appeal in W.P.No.51540-49, Ex P11 is the certified copy of the orders passed in W.P.No.51540-51549/2013, Ex P12 and Ex P13 are the certified copies of judgment passed in HRC No.5555/2014 and 5556/2014 respectively, Ex P14 is the certified copy of the plaint and Ex P15 is the certified copy of the written statement in O.S.No.7353/2009, Ex P16 is the copy of legal notice dated 3.2.2014 Ex.P17is the unopened postal cover.

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18. During the course of cross-examination by the defence PW 1 has denied the suggestion that the property belongs to them and the property which is in possession of the defendant is entirely different. She has denied the suggestion that the property which was given under rent was already acquired for the purpose of construction of Metro. She has denied the suggestion that the property which is in possession for the defendant is standing in the name of one

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Devarajamma. She has denied the suggestion that in order to give the shop to the third party for higher rate of rent they filed this suit of eviction against the defendant. She has denied all other suggestions made to her.

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19. The defendant who is examined as DW1 has filed his affidavit filed in lieu of examination –in – chief and reiterated the written statement contentions. DW1has deposed that the property bearing new No.110,old No. 113 standing in the name of one N.Devarajamma and the same has got nothing to do with Smt.M.R.Vijayalakshmi. He stated that the property which is in his possession is bearing new No.102(oldNo.120) and new No.110 (old No.113) of Police road. He states that the property which is in his possession and the suit property is not one and the same. He has admitted that certain portion of the commercial building had been let out to him, but the said property is not bearing new No.103 (oldNo.117)but the same is part of property bearing new No.110 and old No. 113. He contends that the property standing in the name of the plaintiffs has already been acquired by the Metro Rail corporation. He contends that the property in his possession not belongs to Smt.M.R.Vijayalakshmi or any of her heirs. The property which is in his possession belongs to one Smt. Devarajamma N.He has admitted regarding the filing of W.P.No.51540-51549/2013before Hon'ble High Court of Karnataka and also admitted about the filing of the suit in O.S.No.7353/2009.He has

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denied the relationship of landlord and tenant between him and the plaintiffs. He has denied the contention of the plaintiffs regarding requirement of bonafide use of premises. He contends that he has regularly paid the rent in cash to Sri.M.Rajashekar. But said M.Rajashekar was not in the habit of issuing rent receipts. The documents Ex.D1 to D6 are marked through DW1. Ex.D1 is the certified copy issued by the Revenue authority under RTI which containing the documents at page No.1 to 76, ExD2 is the two electricity bills, Ex.D3 is the receipt, Ex D4 two electricity bills, Ex D5 is the two telephone bills, Ex D6 is the photographs with CD.. During the course of his cross-examination by the learned counsel for the plaintiffs he has deposed that he has not produced any documents to show that he was obtained the property for rent from Devarajamma. He has admitted the suggestion that his father defendant has filed the suit in O.S.No.7353/2010 against Smt.M.R.Vijayalakshmi and on Metro authorities. He has admitted the suggestion that in the notification for acquisition for Metro the concerned authorities have shown the measurement of the property belongs to Smt.M.R.Vijayalakshmi. He has admitted the suggestion that the petition filed by the present Plaintiffs in HRC No.55/2014 and 56/2014 were allowed

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20. DW2 is the Tahsildar of BMRCL has produced the documents which are marked at Ex.D7 toEx.D18.Ex.D7 and 8 are the copy of gazette notification for acquisition of property. Ex.D9 and 10 are

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the rectified notification,Ex.D11 is the copy of sketch, Ex.D12 and 13 are the copy of notifications,Ex.D14 is the LAC register extract (3in number),Ex.D15 is copy of cheques (4innumber),.Ex.D16 is the resolution copies (3 in number) and Ex.D17 is the rehabilitation document, Ex.D18 is copies of package (3 in number).During the course of her cross-examination by the learned counsel for the plaintiff she has admitted the Suggestion that as per the document Ex.D9 the khatha number 103PIDNo.30-28 belongs to the plaintiffs. She has admitted the suggestion that as per Ex.D9 only 44.25sq.mtr. property belongs to the plaintiffs was acquired. She admitted the suggestion that as per the document Ex.D9 property bearing No.102 belongs to Nara Narayana Trust and property bearing No.103 is belongs to the plaintiffs. She admitted the suggestion that as per Ex.D10 47.06 sq.mtr. belongs to the plaintiffs were acquired. She admitted the suggestion that as per Ex.D10 the properties belongs to Nara Narayana Trust and plaintiff property are different properties. She admitted the suggestion that as per Ex.D16 plaintiffs are the owners of the property bearing No. 103.She admitted the suggestion that the documents ,Ex.D13 and Ex.D18 are no way connected to this case. She has admitted the suggestion that there is no way connection to this case and BMRCL.

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21. The learned counsel for the plaintiff argued that there is a jural relationship of landlord and tenant between the plaintiffs and defendant. He submitted that

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the present defendant in the previous suit has clearly admitted the landlord and tenant relationship between him and Smt. M.R.Vijayalakshmi. He argued that the petitions in HRC No. 55/2014, HRC No.56/2014 are decreed. The suit filed by the present plaintiffs before the Small Cause Court in S.C.No.476/2014, 477/2014 and 479/2014 are all decreed. He submitted that since the defendant has admitted the landlord and tenant relationship between him and Smt. M.R.Vijayalakshmi. The admitted facts need not be proved. He submitted that now in this case the defendant has falsely contending that the property belongs to one Smt. Devarajamma. The learned counsel for the plaintiff relied upon the following decisions:

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(1) AIR 1976 SC 2335 in Sri. RamaParsricha Vs. Jagannath & other to contend that it is only the landlord who can terminate the tenancy and institution the suit for eviction. The tenant in such a suit is estoped from questioning the title of the landlord under Section 116 of the Evidence Act. The tenant cannot deny that the landlord has title to the premises at the commencement of the tenancy. Under the general law in a suit between landlord and tenant the question of title to the leased property is irrelevant.

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(2) ILR 2008 Kar 1493 in Shamrao Rukmnna Talwar vs. Smt. Suvarna to contend that the landlord who seeks eviction under section 27(2) are need not be an absolute owner of the premises- the word landlord has been defined under the Act, meaning – a person who for the time being is receiving or is entitled to receive the rent of any premises.

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(3) 2010(3) KLJ 619 in Basavaraju vs. Puttaraju to contend that under section 109 of T.P.Act transferee steps into shoes of transferor and becomes entitled to receive rent in terms of lease-separate and Specific attornment by lease to transferee is not necessary to lend validity to transfer as

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section 109 of the Transfer of Property Act creates statutory attornment -since transferee is entitled to receive rent in terms of lease, he is deemed to be landlord as defined in the Rent Act – Pendency of suit said to have been instituted by another person for specific performance of contract to sell suit property said to have been executed by lessor in favour of that person is of no relevance for deciding lessee’s liability to be evicted to maintain petition under the Rent Act for eviction of lessee for non-payment of rent for period subsequent of rent for period subsequent to transfer and it is not necessary to defer eviction proceedings till decision in suit for specific performance said to be pending against transferor.

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22. The learned counsel or the defendant argued that there is not jural relationship between the plaintiffs and the defendant. The property which is in possession of the defendant is belongs to one Devarajamma. The learned counsel for the defendant further argued that the property belongs to Smt. M.R. Vijayalakshmi has already been acquired by the metro Rail Corporation and the 2ndn plaintiff is already received compensation amount.

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23. I have appreciated the rival contentions taken by the parties.

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24. In this suit in order to prove the death of Smt. M.R.Vijayalakshmi @ Adilakshmi w/o M.Rajashekar, the plaintiffs have produced the documents Ex.P5 copy of the death certificate of Smt. M.R.Vijyalakshmi which would go to show that Smt.M.R.Vijayalakshmi died on 14.1.2013. Ex.P9 is the copy of death certificate of Rajashekar.M which would go to show that plaintiff No.2 Rajashekar.M. died on 20.7.2014.PW1 has clearly deposed that she is the GPA holder of plaintiff No.3 and 4.She has deposed that 2nd

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plaintiffs her father, 3rd and 4th plaintiffs are her sisters. Her father 2nd plaintiff died on 20.7.2014. Smt.M.R.Vijayalakshmi died on 14.1.2013 leaving behind the plaintiffs as the legal representatives. The defendant even though in his written statement has denied the relationship of the plaintiffs with Smt.M.R.Vijayalakshmi but during the course of the cross-examination of PW1 nothing is elicited from her mouth to discard her examination-inchief with regard to the fact that plaintiffNo.1, 3, 4 are the children and plaintiff No.2 is the husband of Smt.M.R.Vijayalakshmi. The document Ex.P1 is the copy of power of attorney which would go to show that plaintiff No.3 and 4 have executed power of attorney in favour of PW1.No doubt during the pendency of the suit PW1 also died, but the relationship of 2nd plaintiff is the husband, 3rd and 4th plaintiff and PW1 are the daughters of Smt.M.R.Vijayalakshmi cannot be doubted. During the course of cross-examination of DW1 he has admitted the suggestion that the plaintiffs have filed this suit as legal representatives of Smt.M.R.Vijayalakshmi. He has also admitted the suggestion that 2^nd plaintiff is the husband of Smt.M.R.Vijayalakshmi. The plaintiffs have produced the document Ex P2 genealogy which would go to show that the plaintiff no.1, 3, and 4 are the daughters, plaintiff No. 2 is the husband of the deceased Smt.M.R.Vijayalakshmi. During the course of cross- examination of PW1 the defendant has not seriously disputed the document Ex.P2. The oral evidence of PW1 which is supported by the documents Ex.P1 copy of GPA, Ex.P2 genealogical tree, Ex.P12 copy of judgment in HRC No. 55/2014.Ex.P13

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certified copy of the judgment in HRC No.56/2014, are sufficient to hold that the plaintiffs are legal heirs of the deceased Smt. M.R.Vijayalakshmi.

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25. It is the specific contention of the plaintiffs is that suit schedule property originally belonged to Smt.M.R.Vijayalakshmi as she was acquired the property under the registered Will executed by Smt.Sundaramma. The plaintiffs have produced the document Ex.P3 copy of the registered Will dated 13.8.1992. Ex.P4 is the certified copy of the khatha certificate to show that the property bearing newNo.103,(old No.117) was standing in the name of Smt.M.R.Vijayalakshmi. The main contention taken by the defendant is that the suit schedule property which is in possession of the defendant is no way connected to Smt.M.R.Vijayalakshmi. It is the contention of the defendants is that the property bearing new No.110, old No.113 stood in the name of one N.Devarajamma. It is the contention of the defendant is that the property in the possession of the defendant is bearing new number 102 old no.110, new number 103 (old No. 113) of police road is not belongs to Smt.M.R.Vijayalakshmi. But it belongs to N.Devarajamma. Since the defendant has denied the relationship of landlord and tenant between the plaintiffs and defendant, hence this court shall give findings whether the plaintiffs prove there exists jural relationship of landlord and tenant in between plaintiffs and defendant in respect of the suit schedule property .

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26. In this suit the plaintiffs have mainly relied upon the document Ex.P14, certified copy of the plaint in

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O.S.NO. 7353/2009 filed by the present defendant against the Smt. M.R.Vijayalakshmi for the relief of permanent injunction. The plaintiffs have also relied upon the documents Ex P10, certified copy of the memorandum of Appeal filed by the tenants against the plaintiff no.2 M.Rajashekar and others, and also relied upon the document Ex.P11 certified copy of the judgment passed by the Hon’ble High court of Karnataka in W.P. 5154051549/2013(LA-RES). I have gone through the documents Ex.P10 and Ex.P11. These writ petitions filed before Hon’ble High Court of Karnataka under Article 226 and 227 of the Constitution of India prying to direct the respondent No.3 and 4 not to demolish the structures which is in occupation of the petitioners being part of new number 110(old number 113), new number 102 (old number 120) and new number 103 (old no. 117) at present managed by 5^th respondent M. Rajashekar. The said 5^th respondent M. Rajashekar is none other than plaintiff No. 2 in the present. Suit. The Hon’ble High Court of Karnataka disposed of the Writ Petitions in W.P.No.51540-51549/2013(LA-RES) by making certain observations. It is observed that since the respondent No.2 and 3 have not acquired the land of the petitioners the question of granting alternative land would not arise.

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27. The document Ex.P.14 is the certified copy of the plaint in O.S. No. 7353/2009 filed by the present defendant Nawaz Pasha against Smt. M.R.Vijayalakshmi and BMRCL seeking for permanent injunction.. It is important to note the schedule as well as the portion of

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pleading mentioned in the said suit in the plaint. The schedule which is mentioned in Ex.P14 and para no.2 and 3 of the plaint are as follow:

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Schedule of O.S.No.7353/2009:

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All that piece and parcel of portion of property no.110 situated at police road, Bangalore measuring east to west 23 feet and north to south 17 feet with RCC roofing and provided with electricity supply and in which the plaintiff s running business in the name and style of Nawaz Pasha and Co. and bounded towards east by Nizam Rumal and Company west by property belongs to V.Hanumantha Rao, north by vacant portion in the same property bearing no.110, south by police road.

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28. Para No.2 and 3 of plaint in O.S.No.7353/2009

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reads as follows:

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“(2) The plaintiff submits that he is a fruit merchant and he is having a sales cum godown unit located in the portion of building no. 110, police road, Bangalore – 560 053.The plaintiffs running the said business under the name and style of “Nawaz Pasha and Co.” and the said portion is more fully described in the plaint schedule. The plaintiff submits that the said property bearing no. 110 is adjacent to property bearing no.102 and103 which also belongs to and owned by the 1st defendant and are having common boundaries.

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(3)The plaintiff submits that he is running the said business in the said portion as a tenant under defendant no.1 under an oral agreement of lease since1990 and he is paying monthly rent of Rs.2,500/- and had paid advance of Rs.20,000/- to defendant no.1., However, no receipts are issued by the defendant no.1 either for the rents collected or for having accepted the said advance. The plaintiffs regular in payment of rents which has been collected by the

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husband of plaintiff on behalf of plaintiff. The plaintiff submits that the rent is exclusive of electricity and the plaintiff is paying electricity bill to the authority concerned. The photographs of the suit schedule property wherein the plaintiff is running the said business are produced for kind reference of this honourable court.”

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29. On perusal of the plaint schedule and the pleadings of O.S.7353/2009 would go to show that the present defendant who is plaintiff in O.S.7353/2009 not only admitted the ownership of Smt.M.R.Vijayalakshmi over the property bearing No. 110 but also admitted her ownership over the property bearingNo.102 and 103.The present defendant also admitted that Smt.M.R.Vijayalakshmi is the landlord. He has also taken contention that he was a tenant under Smt.M.R.Vijayalakshmi under oral agreement of lease since 1990 and he is paying monthly rent of Rs.2,500/- and had paid advance of Rs.20,000/-. The schedule property mentioned in plaint in O.S.7353/2009 is property bearing No.110.In the present suit even though the defendant has taken contention that the property involved in O.S.No.7353/2009 and in the present suit is entirely different. The defendant who has admitted the relationship of landlord and tenant in O.S..no.7353/2009 cannot retract his admission in the present suit. The admission made in O.S.No.7353/2009 is judicial admission. It is admission made in the plaint which comes within the purview of section 58 of the Evidence Act. The facts admitted need not be proved. The admissions made in the plaint of O.S.7353/2009 is very clear and there is no ambiguity. These admissions made in the plaint are judicial admissions.

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30. Section 116 of the Indian Evidence Act reads

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as follows:

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“ No. tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person has a title to such possession at the time when such licence was given.”

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31. The present defendant who is plaintiff in O.S.No. 7353/2009 has admitted the ownership of Smt.M.R.Vijayalakshmi in respect of the property bearing No.110 and the properties bearingNo.102 and103. The said suit filed by the present defendant for the relief of permanent injunction in respect of property bearing No.110 measuring east to west 23 feet and north to south 17 feet. It is not the contention of the defendant is that the property which is mentioned in O.S.No.7353/2009 is not belongs to Smt.M.R.Vijayalakshmi. Since the present defendant has admitted the ownership of Smt.M.R.Vijayalakshmi with respect to the property bearingNo.110,102,103 of police road and as he admitted that he is tenant under Smt.M.R.Vijayalakshmi and paying rent, now the defendant is estopped from denying the ownership of Smt.M.R.Vijayalakshmi over the property bearing No.110,102, 103.Now in the present suit the defendant has taken contention that the property bearing No.110 old No.113 standing in the name of N.Devarajamma and the same has got nothing to do with Smt.M.R.Vijayalakshmi.It is the contention of the defendant is that he is in possession o fproperty bearing new no.102, (old No.120) and new No.110

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(old No.113).I have perused the documents produced by the defendant which is marked at Ex.D1 to Ex.D6 and also perused the document which are produced by DW2 and got marked at Ex.D7 to Ex.D18.The defendant who has taken contention that he was taken the property which is in his possession from one N.Devarajamma for rent, in order to substantiate the same he has not produced any documents such as rent paid receipts, agreement, etc.DW1 in his cross-examination admitted the suggestion that he has not produced any documents to show that he has taken the property from Devarajamma under rent. The very contention of the defendant that he was paying the rent to Sri.M.Rajashekar i.e., plaintiff No.2 itself is sufficient to hold that there exists the landlord and tenant relationship between the plaintiffs and defendant. It is not in dispute that a portion of the property belongs to Smt.M.R.Vijayalakshmi was acquired for Bangalore Metro Rail Project. DW2 is the Tahsildar who appeared before the court and produced the documents marked at Ex.D7 to Ex.D18 regarding the acquired property. DW1 in his cross-examination admitted the suggestion that in the notification issued for acquisition the concerned authorities have mentioned regarding the ownership of the property of Smt.M.R.Vijayalakshmi acquired by them. Dw2 who is the best authority to say about acquisition has clearly admitted the suggestion that they have acquired only portion of the property bearing No.103 to the extent of 47.06 sq.mts. belongs to Smt.M.R.Vijayalakshmi DW2 has admitted the suggestion that as per the document Ex.D16 the plaintiffs are the owners of the property bearing No.103. DW2 has deposed

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that as per the document Ex.D9 property bearing No.102 belongs to Nara Narayana Trust and property bearing No.103 is belongs to the plaintiffs. It is not the contention of the defendant is that earlier he was in possession of the property which was acquired for BMRCL and there after he was shifted to the property in which he is now in possession. It is the specific contention of the plaintiffs is that suit A schedule property bearing No.110 (new No.103) totally measuring 8341.50 sq.ft. was consisting ground floor, first floor building. In the ground floor 16 commercial shops were located and in the first floor two shops are located. The present suit filed by the plaintiffs for shop No.4.The plaintiffs have produced the document Ex.P12 certified copy of the judgment passed by the Hon'ble SCCH-1 in HRC No.55/2014 in respect of the shop No.9.The document Ex.P13 is the certified copy of the judgment in HRC no.56/2014 in respect of the shop no.10. in the said two HRC petitions also the respondents have taken such contention that the property belongs to Smt.N.Devarajamma. But the Hon’ble court rejected such contention taken by the respondents therein and passed an order directing to quit vacate and deliver the vacant possession of the petition schedule premises to the Petitioners. During the court of filing the written arguments thel earned counsel for the plaintiffs produced the copy of orders passed by the Hon’ble High Court of Karnataka HRRP No.121/2015 c/w HRRP No.122/2015 which would go to show that the revision petition filed challenged the order passed in HRC No.55 and 56 came to be dismissed. The learned counsel for the plaintiffs have also produced

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the copies of judgment passed in S.C.No.476/2014, in respect of shop no.7, S.C.No.477/2014 in respect of shop no.14, S.C.No.478/2014 in respect of shopno.16 wherein the Hon’ble Additional Small Cause and ACMM court (SCCH-13) decreed these cases and directed to deliver the vacant possession of the properties to the petitioners. The present plaintiffs are the petitioners in the said HRC No.55/2014, HRC No.56/2014 , S.C.No.476/2014, S.C.477/2014 and S.C.No.478/2014, S.C.no.479/2014 have filed and succeeded in getting decree. The learned counsel for the plaintiffs have also produced copy of orders passed in S.C.No.479/2014, S.C.No.480/2014 wherein also the Hon’ble Small Causes Court passed judgment and decree in favour off the present plaintiffs. The properties involved in all these cases is also with respect to the property bearing No.110 (new No.103) situated at police road. These judgment and decree strengthens the contention of the plaintiffs in the present suit. The very admission made by the plaintiff in O.S.No.7353/2009 that Smt.M.R.Vijayalakshmi is the landlord in respect of the property bearing No. 110 in which the defendant was in possession and the very admission of the present defendant (plaintiff in O.S.No.7353/2009) that Smt.M.R.Vijayalakshmi is also owner of the property bearing No.102,103 is sufficient to hold that the suit A schedule property belongs to Smt.M.R.Vijayalakshmi. Suit B schedule property is the portion of suit A schedule property. The document Ex.P2 is the genealogical tree to show that the plaintiff No.2 M.R.Rajashekar is the husband and plaintiff No.1, 3 and 4 are the daughters of

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Smt.M.R.Vijayalakshmi. The contention of the defendant is that the document Ex.P3 copy of will must prove as per the law is not acceptable because when the defendant himself already admitted in O.S.No.7353/2009 that Smt.M.R.Vijayalakshmi is the landlord, under such circumstances merely because the attesting witnesses of the document Ex.P3 are not examined, that cannot be ground to reject the contention of the plaintiffs ownership over the suit property. DW1 in his cross-examination admitted that 2^nd plaintiff is the husband and the 1^st plaintiff is the daughter of Smt.M.R.Vijayalakshmi. He ha also admitted the suggestions that this suit is filed by the legal representatives of Smt.M.R.Vijayalakshmi who succeeds the estate of Smt.M.R.Vijayalakshmi steps into the shoes of lessor in view of section 109 of the Transfer of Property Act. After the death of Smt.M.R.Vijayalakshmi the plaintiffs being the legal representatives of Smt.M.R.Vijayalakshmi became the owners of the suit schedule premises. The defendant was tenant under Smt.M.R.Vijayalakshmi became the tenant of the plaintiffs after the death of Smt.M.R.Vijayalakshmi automatically and there need not be separate lease agreement between the defendant and plaintiffs. The defendant becomes the tenant of the plaintiffs by implication of law. In my humble view the principles of the decisions cited by the learned counsel for the plaintiffs reported in AIR 1976 Sc 2335,ILR 2008 Kar 1493, 2010(3)KLJ 619 are aptly applicable to the present case. The oral evidence of PW1 and the documents marked at Ex.P1 to Ex.P17 and admissions of defendant in a previous suit in O.S.No.7353/2009 and admissions in W.P.No.51540-

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51549/2013 (LA-RES) and the admissions made by DW2 in her cross-examination are sufficient to hold that the plaintiffs are the owners of the suit schedule premises and defendant is the tenant under them.

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32. The plaintiffs have produced the document Ex.P16 copy of legal notice dated: 3/2/2004 issued to the defendant Calling upon him to quit and deliver B schedule property within one month. In this legal notice the plaintiffs have also mentioned about the arrears of rent of Rs.1,62,500/payable by the defendant. According to the plaintiff the defendant has not paid rent from March 2008.PW1 has deposed that they have got issued notice under section106 of T.P. Act through their advocate on: 3/2/2014 to the defendant but the same was duly returned as not claimed. The plaintiff have produced the document Ex.P17 unopened postal covers to show that the notice issued to the defendant returned as not claimed. It is not the contention of the defendant is that the plaintiffs have issued legal notice to the wrong address.. The document Ex.P16 and Ex.P17 are sufficient to hold that the plaintiffs have legally terminated the tenancy of the defendant by issuing notice as required under section106 of T.P.Act.

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33. The defendant in paraNo.19 has taken contention that the suit of the plaintiff without the prayer of Declaration of title and consequential relief by paying court fee on the market value of the property is not maintainable. This contention of the defendant is not acceptable because it is proved that there exits landlord

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and tenant relationship between the plaintiffs and defendant. The defendant is estopped from claiming that the plaintiffs are not the owners of the suit schedule property. As already stated the very admission made by the pres ent defendant in O.S.No.7353/2009 is judicial admission and it need not be proved in view of section 58 of Evidence Act. In view of section 116 of Indian Evidence Act the defendant is estopped from denying the title of plaintiff over the suit property. The defendant is estopped from claiming that the suit property belongs to N.Devarajamma. More than that there is no cogent evidence on the side of the defendant to show that the suit schedule property belongs to N.Devarajamma. The documents produced by the defendant which are marked at Ex.D1 to Ex.D6 and documents produced by DW2 which are marked at Ex.D7 to Ex.D18 are not sufficient to hold that the defendant is tenant under Smt.N.Devarajamma. The defendant has failed to prove issue No.3.The plaintiffs have proved that there exists the jural relationship of landlord and tenant in between the plaintiffs and defendant. The plaintiffs have also proved that they have terminated the tenancy of the defendant. Hence I answered Issue No.1 and .2 in the Affirmative and issue no.3 in the negative.”

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As can be seen from the reasoning and findings recorded supra, the trial court has come to the conclusion that the plaintiffs had established the jural relationship of landlord and

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tenant between themselves and the defendant in relation to the suit

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schedule premises, especially having regard to the categorical, unequivocal and unambiguous admission made by the defendant in the earlier suits / litigations between the parties. The trial court has also taken into account the unimpeached, uncontroverted and unchallenged evidence of the plaintiffs coupled with the various inconsistencies, discrepancies, contradictions, admissions etc., in the pleadings and evidence of DW-1 examined on behalf of the defendant to hold that he was a tenant under the plaintiffs.

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The trial court also found that the appellant – defendant has not examined himself but had adduced the evidence of his GPA Holder (DW-1) who did not have personal knowledge regarding the matter and adverse inference would have to be drawn against the appellant for not stepping into the witness box or personally giving evidence in the suit. The impugned judgment also discloses that the trial court has taken note of the fact that the appellant – defendant had not placed any legal or acceptable material to establish his specious / specific plea that it was N.Devarajamma who was the owner and landlord of the suit schedule premises while the documentary evidence at Exs.P1 to

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P17 clearly established the jural relationship of the landlord and tenant between the plaintiffs and defendant.

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After considering the rival contentions including the evidence of the Tahsildar of BMRCL examined as DW-2 on behalf of the defendant, the trial court came to the conclusion that the material on record including the said evidence was not sufficient to establish that the suit schedule premises was either acquired or that there was a dispute regarding identity of the suit schedule premises and consequently, the trial court proceeded to reject the said contention of the defendant. The trial court also perused the termination notice at Ex.P16 dated 03.02.2014 to come to the conclusion that the tenancy of the defendant under the plaintiffs had been duly terminated in accordance with law.

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A perusal of the entire material on record will clearly establish that the trial court has come to the correct conclusion that while the plaintiffs had established that they are the landlords of the suit schedule premises and that the defendant was the tenant under them, whose tenancy had been duly terminated, the defendant had not established his defence that N.Devarajamma was the owner and landlord and that there was a dispute regarding

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identity of the suit schedule premises. In fact, the evidence of DW2 - the BMRCL Tahsildar, rather than establishing the defence of the defendant supported the claim of the plaintiffs that the suit schedule premises had not been acquired for the metro project and that there was no dispute regarding identity of the suit schedule premises. Under these circumstances, the trial court came to the correct conclusion that the plaintiffs were entitled to decree for eviction against the appellant – defendant.

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While dealing with issue Nos.5 and 6 in relation to arrears of rent payable by the appellant to the respondents, the trial court held as under:-

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35. Issue No.5 . The plaintiffs have claimed the arrears of rent of Rs.1,62,500/-. While discussing Additional issue No.1 I held that there exists jural relationship of landlord and tenant in between the plaintiffs and defendant. In plaint in O.S.No.7353/2009 the defendant himself admitted that he was tenant under Smt.M.R.Vijayalakshmi and paying monthly rent of Rs.2,500/-. It is the contention of the plaintiffs is that in O.S.No.7353/2009 Smt.M.R.Vijayalakshmi claimed the arrears of rent from March 2008 till filing of the written statement therein. PW1 has deposed that after death of her mother they approached the defendant in the month of February 2013 and requested him to vacate the premises within 60 days enable them to construct new commercial building to accommodate

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their children, the carrying put traditional business of selling of silk saries. Then the defendant orally requested six months time to vacate the premises. For the same they agreed and granted time till September 2013 and also demanded him to pay arrears of rent at the rate of Rs.2500/- per month. In Ex.P16 legal notice the plaintiffs have clearly mentioned regarding the arrears of rent of Rs.1,65,500/- towards arrears of monthly rent from March 2008 till the issuance of notice. The defendant has not produced any documents to show that he has paid arrears of rent of Rs.1,65,500/-. The plaintiffs are entitled for the arrears of rent of Rs.1,65,500/- as sought for. Hence I answered issue No.2 in the affirmative.

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Issue No.6 . While discussing issue No.1 and 3 I held that exists the jural relationship of landlord and tenant between the plaintiffs and the defendant. It is also held that the plaintiffs have legally and validly terminated the tenancy of the defendant by issuing the notice. While discussing issue no.5, it is held that the plaintiffs are entitled for arrears of rent of Rs.1,62,500/-. It is the contention of the plaintiffs is that the sit property required them for bonafide use. They have also produced the documents Ex P8, copy of the notice issued by the BBMP to demolish the building as the same is in dilapidated condition. The contention of the defendant is that the building is in good and habitable condition and it need not be demolished to erect new building is not acceptable. The contention of the plaintiffs that the suit property required them for bonafide use and occupation after demolition and construction cannot be disbelieved. As the plaintiffs

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have already terminated the tenancy of the defendant by issuing legal notice the defendant has not authority to continue in possession of the B schedule property. The plaintiffs are entitled for recovery of vacant possession of the suit schedule property and also entitled for the arrears of rent of Rs.1,62,500 from the defendant. Hence I answered issue no.5 in the Affirmative.

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The aforesaid findings recorded by the trial court are also based on correct and proper consideration and appreciation of the material on record and the same does not warrant interference in the present appeal.

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Upon re-appreciation, re-evaluation and reconsideration of the entire material on record, I am of the view that the trial court was fully justified in passing the impugned judgment and decree which cannot be said to suffer from any illegality or infirmity nor can the same be said to be contrary to law or the material on record warranting interference by this Court in the present appeal.

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Accordingly, both the points are answered against the appellant and consequently, the appeal is devoid of merit and the same is hereby dismissed.

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However, in the interest of justice, appellant is granted six months time i.e., up to 10.05.2024 to voluntarily quit and deliver the vacant possession of the suit schedule premises to the respondents – plaintiffs subject to the appellant – defendant paying all arrears of rent and continuing to pay the monthly rent to the respondents as and when they fall due regularly and promptly without any default.

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Sd/JUDGE

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SV/SRL

Sri Nawaz Pasha v. Sri M Om Prakash

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Sri Nawaz Pasha v. Sri M Om Prakash

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