SRI.RAVIKUMAR S/O LATE AYAPPA REDDY AGED ABOUT 62 YEARS R/AT NO.162/1, 2^ND CROSS PAPAIAH REDDY LAYOUT MANORAYANAPALYA R.T NAGAR POST BENGALURU-560032

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…APPELLANT

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(BY SRI.JAGADISH GUNDAPPA, ADVOCATE)

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AND:

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Digitally signed by NAGARAJA B M Location: HIGH COURT OF KARNATAKA

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SMT.HONNAMMA W/O LATE CHANDRASHEKAR S/O LATE S.SATHYANARAYANA

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SINCE DECEASED RESPONDENT NOS.2 AND 3 ARE TREATED AS LRS OF DECEASED RESPONDENT NO.1

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SRI.RENUKA S/O LATE CHANDRASHEKAR AGED ABOUT 51 YEARS

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NC: 2026:KHC:2371 RFA No. 2854 of 2024

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HC-KAR

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SRI.SHIVAKUMAR S/O LATE CHANDRASHEKAR AGED ABOUT 45 YEARS

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ALL ARE R/AT 2^ND CROSS PAPAIAH REDDY LAYOUT MANORAYANAPALYA R.T NAGAR POST BENGALURU - 560032

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…RESPONDENTS

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(BY SRI.C.SHANKAR REDDY, ADVOCATE FOR C/R.2 AND R.3)

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THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 30.09.2024 PASSED IN O.S.NO.3528/2019 ON THE FILE OF LVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU., DISMISSING THE SUIT FOR DAMAGES AND PERMANENT INJUNCTION AND ETC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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The captioned appeal is by the unsuccessful

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appellant- plaintiff assailing the judgment and decree dated 30.09.2024 rendered in O.S.No.3528/2019 on the

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file of the LVI Additional City Civil Judge, Bengaluru,

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wherein plaintiff’s ejectment suit instituted in

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O.S.No.3528/2019 is dismissed.

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For the sake of brevity, the parties are referred as they are ranked before the Trial Court.

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Though this matter is listed in admission, the learned counsels on record were notified on the previous date that the matter will be heard finally as the decree arises out of the ejectment suit. This Court also directed the Registry to secure the Trial Court Records, which are now placed before this court.

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Brief facts leading to the case are as under;

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The plaintiff instituted the present suit seeking ejectment, damages and a decree of perpetual injunction contending that he and his uncle acquired the suit schedule properties under a registered Partition Deed dated 20.04.2000. Under the said partition, five items described as Schedule ‘E’ properties were allotted to the

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plaintiff’s share. Item No.3 of Schedule ‘E’ comprises land bearing Sy.Nos.40 and 41/3, measuring East to West 65 feet and North to South 84 feet on the eastern side and 87 feet on the western side, out of a larger extent of 1 acre 10 guntas. The portion so allotted to the plaintiff is described as Schedule ‘A’ property in the plaint, whereas the property in dispute, measuring East to West 23 feet and North to South 30 feet, is described as Schedule ‘B’ property.

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It is the plaintiff’s case that Schedule ‘A’ property was earlier enjoyed by his uncle, Krishna Reddy, and pursuant to the family partition, exclusive possession of the portion allotted to the plaintiff was delivered to him. The plaintiff further alleges that at the time of such delivery, the defendants were in occupation of a portion of the property as tenants and were paying rent of Rs.700/ per month, which was subsequently enhanced to Rs.1,400/- per month.

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NC: 2026:KHC:2371 RFA No. 2854 of 2024

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The plaintiff asserts that when he applied for

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change of khatha in respect of the property, the defendants filed objections claiming ownership. Upon verification of the Encumbrance Certificate, the plaintiff claims to have discovered that his uncle had unlawfully sublet the property without any right or title. It is further alleged that the defendants are asserting ownership over the suit schedule property without any valid conveyance. On these premises, the plaintiff instituted the present suit seeking ejectment and damages.

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Upon service of summons, defendant No.2 filed a written statement, which was adopted by defendant Nos.1 and 3. The defendants contested the suit on the ground that it is not maintainable and that the plaintiff has approached the Court suppressing material facts. It is specifically contended that Krishna Reddy (defendant No.1) had delivered possession of Schedule ‘B’ property

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much prior to the execution of the partition deed dated 20.04.2000. Defendant Nos.2 and 3 asserted absolute

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ownership over Schedule ‘B’ property on the strength of a registered sale deed dated 07.06.2004 executed by defendant No.1, acting as GPA holder of Krishna Reddy. The defendants, therefore, denied the existence of any jural relationship of landlord and tenant and sought dismissal of the suit.

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On the basis of the rival pleadings, the Trial Court framed the necessary issues and afforded opportunity to both parties to adduce oral and documentary evidence in support of their respective claims.

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In support of his case, the plaintiff examined

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himself as P.W.1 and another witness as P.W.2 and produced four documents, which were marked as Exs.P.1 to P.4.

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On the other hand, the defendants examined defendant No.2 as D.W.1 and produced as many as seventy four documents to substantiate their claim of title and possession. Upon appreciation of the oral and

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NC: 2026:KHC:2371 RFA No. 2854 of 2024

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documentary evidence, the Trial Court dismissed the suit holding that the plaintiff failed to establish that the defendants were tenants in respect of the suit schedule property and further failed to prove lawful termination of tenancy as required under law.

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Heard the learned counsel appearing for the plaintiff and the learned counsel representing the defendants.

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The following points arise for consideration in the present appeal:

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(i) Whether the Trial Court was justified in dismissing the suit by holding that the plaintiff failed to establish his title over the Schedule ‘B’ property?

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(ii) Whether the Trial Court was justified in recording a finding that the plaintiff failed to prove the existence of a jural relationship of landlord and tenant and the valid termination of tenancy in accordance with law?

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(iii) What order?

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Findings on Point Nos.(i) and (ii) :-

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The plaintiff has instituted the present suit asserting absolute ownership over the suit schedule property by tracing his title to a registered Partition Deed dated 20.04.2000. It is the specific case of the plaintiff that under the said partition, the properties described as Schedule ‘E’ were allotted to his share and that the defendants were originally inducted into the premises by his uncle - Krishna Reddy. According to the plaintiff, upon the partition, there was an implied attornment in his favour and having acquired title pursuant to the partition, he stepped into the shoes of the landlord and is, therefore, entitled to seek eviction of the defendants from the suit schedule property.

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However, on a careful examination of the records, it is evident that the present suit is one for ejectment founded on an alleged relationship of landlord

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NC: 2026:KHC:2371 RFA No. 2854 of 2024

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and tenant. In such circumstances, issuance of a quit notice as contemplated under Section 106 of the Transfer of Property Act, 1882 is a mandatory statutory requirement. Admittedly, no such notice terminating the alleged tenancy has been issued prior to the institution of the suit. In the absence of compliance with the statutory mandate, the very foundation of the ejectment action stands vitiated, rendering the suit procedurally untenable.

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Be that as it may, the more fundamental issue that arises for consideration is whether the plaintiff could have maintained an ejectment suit at all, when the very document under which he claims title namely, the registered Partition Deed dated 20.04.2000 unequivocally excludes the suit schedule property from the partition. A plain reading of the recitals in the said partition deed clearly discloses that Schedule ‘B’ property was not the subject matter of allotment under the partition and stood excluded therefrom. If the suit schedule property did not form part of the properties allotted to the plaintiff, the

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NC: 2026:KHC:2371 RFA No. 2854 of 2024

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plaintiff cannot assert ownership or claim to have acquired landlordship over the said property merely on the strength of the partition.

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It is trite that a party seeking eviction must first establish his title or lawful status as landlord in respect of the suit schedule property. When the foundational document relied upon by the plaintiff itself negates inclusion of the suit schedule property, the theory of attornment post-partition, as propounded by the plaintiff, becomes wholly untenable. Attornment presupposes a lawful transfer of reversionary interest, which, in the present case, is conspicuously absent.

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In this backdrop, this Court finds it appropriate to advert to and examine the recitals contained in the registered Partition Deed dated 20.04.2000, as the said document strikes at the very root of the plaintiff’s claim. The relevant portion of the partition deed, which assumes

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decisive significance for adjudication of the present

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controversy, is extracted hereinbelow:

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". . . . . . . CzÉÃ jÃw LzÀ£ÉÃ ¨sÁUÀ¸ÀÛgÁzÀ ²æÃ gÀ«PÀÄªÀiÁgï gÀªÀgÀ ¨sÁUÀPÉÌ vÉUÉzÀÄPÉÆAqÀ ¸ÀªÉð £ÀA§gÀÄ 40 ªÀÄvÀÄÛ 41:3gÀ D¹ÛAiÀÄ°è CªÀgÀÄ ¸ÀÄªÀiÁgÀÄ 30 * 23 Cr D¹ÛAiÀÄ£ÀÄß ¢£ÁAPÀ: 10-7-1989 gÀAzÀÄ PÉ. ºÉÆ£ÀßªÀÄä PÉÆÃA ZÀAzÀæ±ÉÃRgï ªÀÄvÀÄÛ r.£ÁgÁAiÀÄt¥Àà gÀªÀgÀÄUÀ½UÉ PÀæAiÀÄ ªÀiÁrgÀÄvÁÛgÉ. . . . . ."

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On a careful reading of the extracted recitals of the registered Partition Deed dated 20.04.2000, it is manifestly clear that a portion measuring East to West 23 feet and North to South 30 feet stands expressly excluded from the purview of partition effected among the plaintiff and other family members. The exclusion is not vague or incidental, but is categorically recorded with a specific recital that the said portion had already been alienated in favour of defendant No.1, namely, Smt.Honnamma, under a registered Sale Deed dated 10.07.1989. The recitals further disclose that though the transaction traces its origin to a General Power of Attorney executed by Krishna Reddy, defendant No.1, acting under such authority, subsequently executed a registered Sale Deed dated

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07.06.2004 in favour of defendant Nos.2 and 3 jointly,

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which is marked as Ex.D.4.

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The extent described in the registered Sale Deed dated 07.06.2004 squarely corresponds with the extent expressly excluded under the Partition Deed. This factual matrix is further fortified by the rebuttal evidence adduced by the defendants, which corroborates both the identity and extent of the excluded property.

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In the light of the recitals contained in the registered Partition Deed dated 20.04.2000 (Ex.P.1) and the registered Sale Deed dated 07.06.2004 (Ex.D.4) obtained by defendant Nos.2 and 3, it becomes abundantly clear that the disputed property, described as Schedule

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‘B’ property, was never allotted to the plaintiff’s share under the partition, contrary to what is asserted in the plaint. Once the foundational claim of allotment under the partition fails, the plaintiff’s further assertion that

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defendant Nos.1 to 3 are his tenants and that he is

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entitled to seek ejectment falls to the ground.

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The defendants have not only asserted title but have substantiated the same by producing the registered Sale Deed. Significantly, even the plaintiff’s own title document, namely the Partition Deed, acknowledges exclusion of the suit schedule property and does not allot it to any of the coparceners, including the plaintiff. If the suit schedule property was never allotted to the plaintiff, the question of existence of a jural relationship of landlord and tenant between the plaintiff and the defendants does not arise.

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Equally significant is the admitted position that the plaintiff has not challenged the registered Sale Deed dated 07.06.2004 executed in favour of defendant Nos.2 and 3 in a manner known to law. In the absence of a prayer seeking declaration of title or setting aside of the

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sale deed, the plaintiff cannot collaterally impeach the defendants’ title in an ejectment suit.

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This Court finds that the Trial Court has

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meticulously examined the rebuttal evidence adduced by the defendants, particularly the registered Sale Deed marked at Ex.D.4, tax paid receipts marked at Exs.D.5 to D.7, khatha extract for the year 2005 marked at Ex.D.8, khatha certificates marked at Exs.D.9 and D.10, and encumbrance certificates marked at Exs.D.11 to D.14. The cumulative effect of these documents clearly establishes that the family of the plaintiff had lost possession of the suit schedule property much prior to the execution of the Partition Deed dated 20.04.2000 and that defendant Nos.2 and 3 have been in exclusive possession pursuant to the registered Sale Deed dated 07.06.2004.

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In view of the overwhelming rebuttal evidence,

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the plaintiff has failed to establish that the Schedule ‘B’ property formed part of his share under the partition.

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NC: 2026:KHC:2371 RFA No. 2854 of 2024

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The recitals contained in the registered Partition Deed are binding on the plaintiff, and having accepted the benefits of the partition, the plaintiff is estopped from asserting title to a property which stands expressly excluded therefrom. This Court, upon an independent reappreciation of the entire oral and documentary evidence, concurs with the findings recorded by the Trial Court that the plaintiff has failed to prove title over the suit schedule property.

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This Court is also of the considered view that the ejectment suit, as instituted, is fundamentally misconceived. Even if the plaint averments are taken at their face value, the suit is barred by Section 2(e)(i) of the Karnataka Rent Act, 1999, inasmuch as the alleged agreed rent is less than Rs.3,500/- per month. Consequently, the plaintiff could not have maintained an ejectment suit

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before the Civil Court and the remedy, if any, lay elsewhere. On this ground as well, the suit is not

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maintainable. Accordingly, point Nos.(i) and (ii) are

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answered in the Affirmative.

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Findings on Point No.(iii) :- In view of the findings recorded on point Nos.(i) and (ii), this Court proceeds to pass the following:

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ORDER

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(i) The appeal is devoid of merits and is accordingly dismissed.

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(ii) Pending applications, if any, are

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also dismissed.

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Sd/(SACHIN SHANKAR MAGADUM) JUDGE

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NBM

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List No.: 1 Sl No.: 19

Sri Ravikumar v. Smt Honnamma

Case brief

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Sri Ravikumar v. Smt Honnamma

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