Bangalore District CourtSri Chandrakantha.V vs Puttaraju on 20 June, 2015IN THE COURT OF SMALL CAUSES (SCCH-5)
                          AT BENGALURU
           DATED THIS THE 20th DAY OF JUNE 2015

      PRESENT:            K. RAJESH KARNAM, B.Sc, LLB.,
                          VIII ADDL. SCJ & XXXIII ACMM
                          MEMBER - MACT
                          BANGALORE

                          S.C No.1050 of 2013

      PLAINTIFF:          Sri Chandrakantha.V
                          S/o Late Veerabhadraiah
                          Aged about 57 years
                          R/at No.796, 12th 'A' Main
                          75th Cross, Rajajinagar
                          Bangalore - 560010

                          (By Sri Ravishankar.S, Advocate)

                                  Vs.

      DEFENDANT:          Puttaraju
                          Aged about 43 years
                          R/at No.J-115
                          Anjaneya Block
                          Sheshadripuram
                          Bangalore - 560020

                          (By Sri M.N.Nehru, Advocate)

Date of Institution of the suit         :   02.09.2013

Nature of the suit (suit on pronote, :      Ejectment
Suit for declaration and possession
Suit for junction, etc.):
                                         2                   Sc.No.1050/2013
                                                                    SCCH-5



Date of commencement of                      :        30.11.2013
recording of the evidence

Date on which the Judgment                   :        20.06.2015
was pronounced

Total Duration                       Years       Month/s           Days
                                      02          07                17



                                             VIII Additional Judge


                                 JUDGMENTThis suit is filed for eviction of defendant from suit schedule

premises for damages of Rs.15,000/-, for costs and such other

relief.2.    The suit of plaintiff is:Plaintiff is the owner of suit schedule property bearing No.J-

115, formed         in Sy.No.20/1 and            20    of Anjaneya        Block,

Sheshadripuram, Bangalore.                  The plaintiff purchased suit

schedule property from its true owner on 17.09.2012 through

registered document No.GAN-1-0067 of 2012-2013 stored in

C.D.No.GAND152. The documents are executed in Senior Sub-3                 Sc.No.1050/2013SCCH-5


registrar office of Gandhinagar, Bangalore.            The original

document is placed before this court.3.    The plaintiff pleads that defendant is a tenant under

plaintiff on a monthly rent of Rs.5,500/-, which is the suit schedule

property, part of the property purchased by plaintiff bearing No.J-

115, Anjaneya Block, Sheshadripuram, Bangalore. The plaintiff

pleads that defendant has paid advance of Rs.50,000/- and

agreed to pay the rent, tenancy commencing through lease deed

executed on 18.09.2012.      The plaintiff pleads that tenancy is

commencing from month to month basis starting from first day of

each calendar month and it is agreed for a period of 11 months

and rate of rent is fixed at Rs.5,500/-. The plaintiff pleads that

defendant failed to pay the rents due from time to time as on

18.09.2012 upto 10.07.2013, defendant due to pay an amount of

Rs.55,000/-. The plaintiff pleads that he prefers not to continue

the tenancy, accordingly terminated the tenancy by getting issued

legal notice on 16.07.2013, which is duly served on the defendant

on 18.07.2013.     The plaintiff pleads that inspite of service of4                  Sc.No.1050/2013SCCH-5


notice defendant failed, either to pay the rent agreed or vacated

the suit schedule premises. Accordingly plaintiff obliges to seek

damages for use and occupation of suit schedule premises by the

defendant. The plaintiff pleads that tenancy of defendant being

terminated, as such, seeks damages of Rs.15,000/- from the

defendant from date of suit till reliasation. The plaintiff pleads that

suit schedule premises situated within the jurisdiction of this court.

Accordingly seeks the above suit relief.4.    On service of summons, defendant has appeared

through counsel and filed written statement.           In the written

statement defendant has categorically denying the suit filed by

plaintiff is not maintainable in the eye of law.      This defendant

submits the property bearing No.J-115 which is part of Sy.No.20/1

& 20 of Anjaneya Block, Sheshadripuram, Bangalore, is not sold

to any person either to plaintiff or anybody, vide document dated

17.09.2012 as pleaded by plaintiff. This defendant contends that

property bearing No.J-115 has been mortgaged with the plaintiff,

but it is not an out right sale. The defendant pleads that sale deed5                  Sc.No.1050/2013SCCH-5


obtained by plaintiff is frivolous and fraudulent one. This

defendant submits that at no point of he became tenant of the

plaintiff for a monthly rent of Rs.5,500/- with regard to suit

schedule premises, which is part of the entire property bearing

No.J-115, Anjaneya Block, Sheshadripuram, Bangalore.               This

defendant contends that there is no any agreement to pay

advance as on 18.09.2012 and further the plea of plaintiff that

defendant is a tenant on monthly basis and it existing at the rate

of Rs.5,500/- per month for a period of 11 months are all false and

fabricated. The defendant specifically contends that he alongwith

his mother Smt.Chennamma are the joint owners of entire

property including the suit schedule property. Accordingly pleads

that plaintiff be put to strict proof of the allegations made in plaint.

This defendant contends to dismiss the suit of plaintiff being not

maintainable, since the entire suit is false and frivolous and

documents are concocted. This defendant pleads that plaintiff is

not deserving to contend the tenancy of suit property, is a

falsehood, there is no question of tenancy, as such, the plaintiff6               Sc.No.1050/2013SCCH-5


plea that he is the owner and got issued legal notice are all false.

The suit of plaintiff is not maintainable.5.     The defendant pleads that defendant and his mother

Smt.Chennamma are the absolute owner of house property

situated in Sheshadripuram, Pipeline, "B" Street, Municipal No.20

and 20/1, Bangalore, PID No.6-36-20/1 and now known as House

No.J-115, Anjaneya Block, Sheshadripuram, Pipeline, "B" Street,

Bangalore - 560020.        The defendant pleads that property is

measuring east to went 60 feet, north to south 30 feet, with 1st &

2nd floor residential constructed building. The property is acquired

through partition deed dated 26.02.2002 and present defendant is

having peaceful possession of the entire property which

constitutes a portion. Among the portions in the present one, the

defendant is residing and let out the other portions to tenants.

The defendant contends that he is the absolute owner of present

suit schedule property. The defendant pleads that he and his

mother obtained bank loan of Rs.18.5 lakhs on various dates

from the Mahila Co-operative Bank Ltd., Sheshadripuram,7                 Sc.No.1050/2013SCCH-5


Bangalore. The plaintiff pleads that on 02.02.2012, 15.02.2004

and 11.03.2008 by deposit of title deeds before the Sub-registrar

of   Gandhinagar   &   Malleshwaram,     Bangalore,   on   various

occasions. This defendant pleads that loan become NPA, as

such, the present defendant was obliged to approach one

Channabasappa in the year 2010 and availed loan from him

through registered deposit of title deed vide document No.MLS-1-

01131-2010-11, Book No.1 and stored in CD No.MLSD23. The

defendant pleads that entire loan amount obtained from

Channabasappa was paid to Mahila Co-operative Bank directly.

The defendant pleads that he came to know Channabasappa had

got executed the registered deposit of title deed in his favour for

Rs.30 lakhs instead of 18.5 lakhs, though he had paid only

Rs.18.5 lakhs. The defendant pleads that said Channabasappa

never paid remaining Rs.11.5 lakhs to this defendant.          The

defendant contends that after so many request by the plaintiff to

pay Rs.11.5 lakhs, the said Channabasappa inturn told that he will

retain the said amount on safer side and deduct the interest if the

defendant failed to pay the monthly interest to the defendant did8                 Sc.No.1050/2013SCCH-5


not agreed for these conditions. The defendant pleads that as he

was under financial crises he had no other option. The defendant

pleads that the said Channabasappa told he is having one friend

Chandrakanth, who is a financier and he will charge only nominal

interest of 11/2% and he will arrange the amount for defendant.

Accordingly this defendant agreed to get release the mortgaged

title deed from Channabasappa and once again deposited the title

deeds in favour of plaintiff through registered document. In fact it

was execute the deposit of title deeds in favour of plaintiff for an

amount of Rs.20,00,000/- for canceling the earlier deposit dated

16.12.2010. Accordingly on 17.09.2012 once again in the Gandhi

Nagar Sub-registrar officer the title deeds are deposited by

mortgaging the property. The defendant pleads that plaintiff had

issued two cheques to the tune of Rs.10,00,000/-, which was

taken by said Channabasappa by obtaining the signatures on

blank papers and as such, plaintiff did not realised any amount.

On the same day cancellation deed was executed with regard to

deposit of title deeds dated 16.12.2010 vide document No.GAN-1-9                Sc.No.1050/2013SCCH-5


01970-2012-13, Book No.1, stored in CD No.GAND140, dated

17.09.2012.6.      The defendant pleads that he was surprised to note

that he got legal notice on 16.07.2013 from the plaintiff.      The

plaintiff pleads that Mr.Chandrakanth - plaintiff, had colluded with

Channabasappa his father-in-law and got sale deed executed

instead of deposit of title deeds with regard to entire property.

The defendant pleads that after coming to know about the fraud

obtained sale deed, he has filed O.S.No.6432/2013 which is

pending on the board of CCH-19, Bangalore.           The defendant

contends that he is residing in suit schedule property and there is

no any jural relationship as owner and tenant. Accordingly seeks

dismissal of suit with cost.7.      On the basis of this plea, the point for consideration

is:1. Whether plaintiff proves that arise their jural
              relationship of land lord and tenant as
              pleaded in plaint?10                 Sc.No.1050/2013SCCH-52. Whether plaintiff pleads that he terminated
            the tenancy duly as per provisions of Section
            106 of transfer of property act as pleaded?3. What order or decree?8.     At trial, plaintiff got examined himself as PW-1 and

got exhibited P-1 to P-3. In response, defendant got examined

through power-of-attorney as DW-1 and got exhibited D-1 & D-2.9.     My findings on the above points are as under:Point No.1: Affirmative
            Point No.2: Affirmative
            Point No.3: As per final order for the following:REASONS10.    Point Nos.1 & 2:          The plaintiff has specifically

pleaded that he is the owner of suit schedule property describing

it as a part and parcel of property bearing No.J-115, Anjaneya

Block, Sheshadripuram, Bangalore, situated in ground floor

having one hall, one bed room, kitchen, bathroom and toilet with

separate electricity and common water facility.       The schedule

property is situated in Sy.No.20/1 and 20 of Anjaneya Block,11                    Sc.No.1050/2013SCCH-5


Sheshadripuram, Bangalore. The plaintiff pleads that vendor of

suit schedule property sold the property through registered sale

deed      bearing    No.GAN-1-04067       of     2012-2013     stored   in

C.D.No.GAND152          before   Senior        Sub-registrar   office   of

Gandhinagar, Bangalore on 17.09.2012.                After purchase he

became the absolute owner of the same. The defendant became

a tenant by executing a lease agreement agreeing for a period of

11 months starting from 18.09.2012 onwards. It is agreed to pay

monthly rent of Rs.5,500/- and advance amount of Rs.50,000/- is

paid to that effect.11.    The plaintiff pleads that defendant agreed to bare the

electricity and incidental charges exclusively with regard to his

premises. The plaintiff pleads that defendant did not paid the rent

since from 18.09.2012 to 10.07.2013, forcing him to issue legal

notice.      The plaintiff got issued legal notice on 16.07.2013

terminating the tenancy of defendant on expiry of 15 days from

receipt of notice.     The plaintiff pleads that legal notice is duly

served on 27.07.2013. Even after defendant failed to either pay12                 Sc.No.1050/2013SCCH-5


the rent or vacated the suit schedule premises. Accordingly he

was obliged to come up with this suit by paying requisite court fee.12.   In the written statement defendant has specifically

contended by denying the title of plaintiff property No.J-115,

Anjaneya Block, Sheshadripuram, Bangalore, through registered

sale deed being executed on 17.09.2012. The defendant admits

that suit schedule property descried is a part and parcel of the

property, pleaded to be purchased by the plaintiff on 17.09.2012.

The defendant categorically denies in commencing of tenancy

from 18.09.2012 for a period of 11 months and further agreed to

pay rent of Rs.5,500/-, the advance amount payment and arrears

due since then.13.   The defendant categorically denies that plaintiff being

the owner, but contends that this defendant and his mother

Smt.Chennamma are the absolute owners of house property

bearing No.J-115 situated at Sheshadripuram, Pipeline, "B"

Street, Municipal No.20 and 20/1, Bangalore, PIDNo.6-36-20 & 3-

36-20/1 in Anjaneya Block, Sheshadripuram, Bangalore - 20. It is13                 Sc.No.1050/2013SCCH-5


contended that property bearing No.J-115 is measuring east to

west 60 feet, north to south 30 feet, it is having three floors

ground, 1st & 2nd floor. This defendant specifically contend that he

acquired the property in a partition deed dated 26.02.2002 vary in

a portions of residential premises are situated, one is occupied by

this defendant and other portions are let out to other, is false.14.    The defendant has categorically denied the issuance

of legal notice and service of the same and plaintiff becomes an

owner by virtue of the sale deed. The defendant has pleaded that

sale deed dated 17.09.2012 document No.GAN-1-04067-2013-

13, Book No.1, stored in CD.No.GAND152, before Sub-registrar,

Gandhinagar, Nandakumar has challenged in OS.No.6432/2013

pending before Hon'ble City Civil Judge, at Bangalore (CCH-19).

Therefore the plaintiff has no right to file this suit and there is no

any jural relationship of land lord and tenant. Accordingly seeks

dismissal of suit.15.    The plaintiff in his affidavit evidence has reiterated the

plaint averments in page 2 and in his cross-examination he has14                 Sc.No.1050/2013SCCH-5


given the particulars about when and how he met Nandakumar.

He deposes that he is real estate merchant, who categorically

denies he purchased property involved in litigation. He deposes

that he does not know about original owner, but Nandakumar is

the owner when he went to purchase the property. He deposes

that he had paid consideration of Rs.25,00,000/- while Ex.P-1 is

executed, the sale deed. He denies the suggestions that property

is worth more than 11/2 crores as on date of purchase itself. He

admits that one Chennabasappa is a relative as he has given it to

his son.    He categorically     denies that he defrauded the

Nandakumar and got sale deed concocted.16.   In the affidavit evidence of defendant through the

power-of-attorney   holder   Sri.Nandakumar     has    categorically

denied that plaintiff being the owner of suit schedule property and

plaintiff having any right to seek relief of ejectment as prayed and

the plea of plaintiff that this defendant is tenant, agreed to pay

rent of Rs.5,500/- starting from 18.09.2012 are all false and

concocted. It is contended that one Sri.Nandakumar alongwith15                Sc.No.1050/2013SCCH-5


his mother are the actual owners. He further reiterates suit being

filed by him which is pending on board of CCH-19, Bangalore.17.   In the cross-examination of DW-1 has specifically

denied that DW-1 and his mother had executed registered sale

deed with regard to bearing No.20/1 and 20          including suit

property. DW-1 deposes by admitting the signature on Ex.P-1

and also the photographs of himself and his mother. DW-1 is

specifically denies that he and his mother are jointly sold the

property. This DW-1 contends that it is only mortgaged by him.

DW-1 is specifically admits that property was mortgaged to one

Chennabasappa and it is redeemed on Ex.P-1 being executed.

DW-1 specifically admits that he had not protested with regard to

execution of Ex.P-1 and it is contended that at the time of

execution, witness specifically deposes that he was obliged to

sign the contents of Ex.P-1 by closing. DW-1 admits that he has

reported about not reading the document before signing authority.

DW-1 admits that signature on postal acknowledgment. DW-1

admits that legal notice served and there is a reference with16                 Sc.No.1050/2013SCCH-5


regard to passing of title in legal notice. DW-1 admits that original

suit pending before CCH-19 in OS.No.6432/2013. DW-1 admits

that katha has been transferred into the name of plaintiff and he

is paying tax regularly.18.   The plaintiff counsel argues that plaintiff has got

issued legal notice Ex.P-2, which is duly served on defendant

signature being admitted and further Ex.P-4 the lease is admitted

by defendant. Therefore the burden shifts on the defendant to

prove whether he has not received legal notice duly. In fact the

question as to Ex.P-1 being duly executed in favour of plaintiff is a

admitted fact. Therefore the plaintiff has placed enough materials

to show that Ex.P-1 is duly executed as per provisions ofSection

54of Transfer of Property Act 1882 there is no dispute to that

effect. Secondly, as admitted by DW-1 in cross-examination at

page 9 dated 05.11.2014 that katha has been transferred into the

name of plaintiff after the due execution of sale deed. It is further

specifically contended by learned plaintiff counsel that suit filed by

defendant as per Ex.D-1 is only on 03.09.2013. However sale17                 Sc.No.1050/2013SCCH-5


deed has been executed on 17.09.2012 alongwith his children

having no any objection to execute the document. Therefore after

lapse of one year only when the plaintiff got issued legal notice to

vacate the premises defendant started objecting with regard to

transfer of title. In fact in the suit filed by plaintiff there is no any

question raised with regard to fraud being played by this plaintiff

against defendant. In fact in plant Ex.D-1 para 12 page 7 it is

specifically admitted the plaintiff has executed the said deed.

Therefore in this case this court admittedly has no jurisdiction to

go into validity of sale deed whether being executed in

accordance withSection 54of Transfer of Property Act. However

defendant has specifically admitted in cross-examination that the

service of legal notice. Therefore when he admits the signature

on postal acknowledgement, it is the duty of defendant to prove it

has not been executed duly.         In this case accordingly plaintiff

counsel has relied on the following citations:18                  Sc.No.1050/2013SCCH-51.   AIR 2003 SC 4163, Supreme Court of India in case
             of Sheikh Noor & another V/s Sheikh G.S.Ibrahim
             (Dead) by LRs.2.   ILR 1989 KAR 1555 in case of Popular Automobiles
             V/s N.Veeraswamy3.   2010(3) Kar L.J.619, in the High Court of Karnataka
             at Bangalore in case of Basavaraj V/s Puttaraju
             (Since deceased) by this LRs & another4.   AIR 1961 SC 1554, Supreme Court of India in case
             of Pandit Kishan Lal V/s Ganpat Ram Khosla &
             another

        In the case on hand defendant counsel argues that title

suit is pending before the City Civil Court is admitted. There is

specific order passed by the court not to alienate, is an admitted

fact.    Under these circumstances this court cannot exercise

jurisdiction to consider and pass any eviction orders. In fact

when the Ex.P-1 itself is disputed then this court cannot grant

any decree of eviction. Accordingly he has relied on citation

reported in 2008(5) KCCR 3256 Karnataka High Court in case of

Smt Gowramma & another V/s Smt Jayamma & others and

submits that Court of Small Causes does not have any right to19                 Sc.No.1050/2013SCCH-5


decide any dispute with regard to title to the suit schedule

property. Under such circumstances the complicated question

of title and documents cannot be considered by Small Causes

Court. Therefore suit is to be dismissed.19.   On going through the materials on record at the first

instance to consider the plea of DW-1 that Ex.P-1 is not executed

and only deed of mortgage is executed in favour plaintiff by this

DW-1 is contended.       On going through Ex.P-1 it does not

discloses that it is a mortgage deed, as argued by learned plaintiff

counsel it is in accordance with the provisions ofSection 54of

Transfer of Property Act, is evident from the document.        The

arguments of learned plaintiff counsel that if deed of mortgage is

to be executed then only the title holders namely the DW-1 and

his mother would signed the document. But as per Ex.P-1 the

children of DW-1 have also signed discloses that it is a out right

sale, but not mortgaged as contended by plaintiff counsel, seems

a reasonable prayer. Under these circumstances the provisions

ofIndian Evidence Act,section 114(E)R/wSection 115comes20             Sc.No.1050/2013SCCH-5


into effect. The estoppels provided in theIndian Evidence Act,

1872against the defendant and it is the duty of defendant to

disprove the action of plaintiff by placing cogent, corroborative

substantial evidence, seems a reasonable prayer.         On going

throughSection 106of Transfer of Property Act, the materials

placed by plaintiff are in consonance with the same and the

service of notice is admitted. Therefore the silence of defendant

obliges this court to consider the prayer of plaintiff. In fact the

citation relied by defendant does not applies to the case on hand.

Since the question of title though raised by power-of-attorney

holder of defendant is not a complicated one in the present case.

Since transfer of title being acknowledged by revenue authorities

as admitted by DW-1 obliges this court that citation relied by

defendant does not applies to the facts on hand. Per contra, the

citations relied by plaintiff are squarely applicable to the case on

hand.   Accordingly, I am obliged to answer point Nos.1 & 2 for

consideration in the affirmative.21                 Sc.No.1050/2013SCCH-520.    Point No.3: On the basis of discussions made on

point Nos.1 & 2, the suit of plaintiffs is to be decreed with costs.

Accordingly, I proceed to pass the following:ORDER

      The suit of plaintiffs is decreed with costs.

      The defendant is directed to hand over the vacant

possession of suit schedule property within one month from the

date of this order.The plaintiff is at liberty with regard to mesne profits to

proceed as per Order XX Rule 12 of C.P.C.Office to draw decree accordingly.

(Dictated to the stenographer, transcript thereof is corrected and
then pronounced by me in the Open Court on this the 20th day of
June 2015)


                                   (K. RAJESH KARNAM)
                            VIII ADDL. SMALL CAUSES JUDGE

                            SCHEDULE

       All that piece and parcel of the portion of the second floor
of   the    premises     bearing        No.J-115,   Anjaneya    Block,22              Sc.No.1050/2013SCCH-5


Sheshadripuram, Bangalore, consisting of one hall, one bed
room, kitchen, bathroom and toilet with separate electricity and
common water facility.(K. RAJESH KARNAM)
                           VIII ADDL. SMALL CAUSES JUDGE


                         ANNEXURE
LIST OF WITNESSES EXAMINED ON BEHALF OF THE
PLAINTIFF                             DEFENDANT
PW-1: Chandrakantha.V                 DW-1: M.N.Nandakumar

LIST OF DOCUMENTS MARKED ON BEHALF OF THE
PLAINTIFF:
Ex.P-1:      Certified copy of sale deed dated 17.09.2012
Ex.P-2:      Copy of legal notice dated 16.07.2013
Ex.P-3:      RPAD Cover with acknowledgement

LIST OF DOCUMENTS MARKED ON BEHALF OF THE
DEFENDANT:
Ex.D-1:      Certified Copies of order sheet
             & plaint copy in O.S.No.6432/2013
Ex.D-2:      Special power-of-attorney



                                  (K. RAJESH KARNAM)
                           VIII ADDL. SMALL CAUSES JUDGE