Smt. Kaisar Jahan W/O Mohd. ... vs Abdul Wajid Ali S/O Abdul Khadar
2021 Latest Caselaw 1595 Kant

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH


       DATED THIS THE 19TH DAY OF FEBRUARY, 2021

                        BEFORE

        THE HON'BLE MS. JUSTICE JYOTI MULIMANI

              C.R.P. NO 200007 OF 2015

BETWEEN:

SMT. KAISAR JEHAN
W/O MOHD. ABDULLA
AGE: 60 YEARS, OCC: GOVT. TEACHER
R/O H.NO.12-12-16/4
HAJI COLONY, RAICHUR - 584 101
                                           ... PETITIONER

(BY SRI AMEET KUMAR DESHPANDE, ADVOCATE)

AND:

ABDUL WAJID ALI
S/O ABDUL KHADAR
AGE: 49 YEARS, OCC: BUSINESS
R/O H.NO.12-6-367 (OLD)
NEW NO.12-6-440
PLOT NO.108-A, LBS NAGAR
RAICHUR - 584 101

OR

ABDUL WAJID ALI
S/O ABDUL KHADAR
AGE: 49 YEARS, OCC: SHAMS AUTOMOBILE
R/O NEAR RTPS NEW GATE ADJACENT TO
RTPS CONTRACTORS ASSOCIATION
SHAKTINAGAR, RAICHUR-584 101
                                          ... RESPONDENT

(BY SRI LIYAQAT FAREED USTAD, ADVOCATE)
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      THIS C.R.P. IS FILED UNDER SECTION 115 OF THE CODE
OF CIVIL PROCEDURE, CHALLENGING THE JUDGMENT DATED
22.11.2014 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE
AND CJM, RAICHUR IN S.C.NO.04/2011.


      THIS C.R.P. HAVING BEEN HEARD AND RESERVED FOR
ORDER, COMING ON FOR PRONOUNCEMENT OF ORDER THIS
DAY, THIS COURT MADE THE FOLLOWING:

                            ORDER

This is a petition from the Court of Principal Senior

Civil Judge and CJM, Raichur.

2. For the sake of convenience, the parties shall

be referred to in terms of their status and ranking before

the Trial Court.

3. The plaint averments are stated as under:

Plaintiff is the absolute owner of the house property

bearing Mpl.No.12-6-367 (old), 12-6-440 (new), situated

at LBS Nagar, Raichur and that defendant is statutory

tenant on a monthly rent of Rs.300/-. It is averred that

defendant committed default in paying monthly rent from

01.04.2009 till the filing of the suit and he is in arrears of

rent of Rs.8,700/- for the period from 01.04.2009 to

30.06.2011, plaintiff has been regularly asking the

defendant to pay the monthly rent and also arrears of

rent, but in vain. Hence, plaintiff was constrained to issue

legal notice under Section 106 of Transfer of Property Act.

The notice was sent to the address as shown in the cause

title on 06.07.2011 by registered post with

acknowledgment due. It was returned with endorsement

that the door of the suit house has been closed

continuously for 7 days. Thereafter, the plaintiff sent one

more notice on 22.07.2011 by pasting the copy of the

legal notice on the wall of the suit house as required under

Transfer of Property Act. Further, he also got published

the legal notice in the Raichur Vani daily newspaper on

24.07.2011.

Contending that the cause of action arose on

01.04.2009 when the defendant committed default in the

payment of monthly rent. Therefore, plaintiff was

constrained to seek the aid of the Court seeking the relief

of arrears of rent and possession of the suit house.

On service of summons, defendant entered

appearance and filed the written statement. He denied the

jural relationship of landlord and tenant. He has not paid

the rents to the plaintiff at any point of time and that he is

not in arrears of rents as alleged by the plaintiff. He

contended that he is the absolute owner and in possession

and enjoyment of the suit house property having

purchased the same from one Narasanna S/o Badenna for

consideration of Rs.99/- on 18.06.1981. It was also

contended that since the date of purchase, he is in

possession of the suit house. Among other grounds, he

prayed for dismissal of the suit.

On the basis of the pleadings, the Trial Court framed

the following:

ISSUES

1. Whether the plaintiff proves that defendant is a tenant on a monthly rent of Rs.300/-?

2. Whether the plaintiff further proves that defendant is in arrears of rent of Rs.8,700/-?

3. Whether the suit is barred by limitation?

4. Whether the defendant proves that suit is not properly valued?

5. Whether the plaintiff is entitled for the relief?

6. What order or decree?

ADDITIONAL ISSUES:

1. Whether the defendant proves that he is the exclusive and independent owner of Plot No.108/A, bearing Mpl.No.12-6-367 (old), 12-6-440 (new) of LBS nagar, Raichur on the basis of unregistered sale deed dated: 18-6-1981?

2. Whether the defendant proves that he is in actual physical possession from 18-6-1981 till this day and his title become perfected by way of adverse possession?

To substantiate the claim, the Special Power of

Attorney Holder/son of the plaintiff was examined as PW.1

and got marked Exs.P1 to P11. On the other hand,

defendant examined himself as DW.1 and got marked

Exs.D1 to D7.

On the trial of action, it was held that the plaintiff

has failed to establish the jural relationship. Therefore, he

is not entitled for arrears of rent and for recovery of

possession. Accordingly, the suit came to be dismissed.

Aggrieved by the judgment and decree, the plaintiff

has filed revision petition under Section 115 of CPC.

4. Sri. Ameet Kumar Deshpande, learned counsel

for petitioner submitted that the order passed by the Trial

Court suffers from serious error of jurisdiction and has

caused substantial injustice to the revision petitioner.

Therefore, the judgment and decree passed by the Trial

Court is liable to be set aside.

Next, he submitted that the Trial Court has failed to

frame important and necessary issues.

A further submission was made that the evidence on

record clearly establishes the jural relationship of landlord

and tenant between the parties. Hence, the finding on

issue Nos.1 and 2 are contrary to the evidence on record

and therefore the judgment and decree is liable to be set

aside.

It is submitted that plaintiff has purchased the suit

house from one Narasanna in the year 1982 and that in

the year 2012, the name of plaintiff is recorded in the

records of the municipality. The Trial Court has rightly

given findings against the defendant/respondent on

additional issue Nos.1 and 2. Hence, it was sought to urge

that Trial Court ought to have decreed the suit for recovery

of possession. Therefore, dismissal of the suit in the light

of the findings arrived at by the Trial Court is serious error

of jurisdiction and therefore liable to be set aside.

Counsel submitted that plaintiff has claimed the

relief of recovery of possession on the basis of title, but

the Trial Court has committed serious error of jurisdiction

in holding that the plaintiff has not claimed the possession

based on the title. Therefore, he submitted that the suit

ought to have been decreed.

Lastly, he submitted that the judgment and decree is

liable to be set aside and the revision petition may be

allowed.

5. Per contra, Sri. Liyaqat Fareed Ustad, learned

counsel for respondent justified the judgment and decree

of the Trial Court.

Next, he submitted that the defendant has

specifically denied the jural relationship as tenant and

landlord and that the plaintiff has failed to prove the same.

A further submission was made that learned Judge

taking into consideration the oral and documentary

evidence on record rightly dismissed the suit. Therefore,

he submitted that the petitioner has not made out any

good ground to interfere with the order passed by the Trial

Court. Accordingly, he prayed for dismissal of the revision

petition.

6. Heard the contentions urged on behalf of

respective parties.

7. The short question which arises for

consideration is, whether the judgment and decree

requires any interference by this Court?

The facts have been sufficiently stated. This is simple

suit seeking arrears of rent and recovery of possession.

It is the specific case of the plaintiff that she is the

absolute owner of the suit house property and the

defendant is a tenant under her on a monthly rent of

Rs.300/-; that, the defendant committed default in

payment of rent. The defendant disputed the relationship

of tenant and landlord and contended that he is the

absolute owner of the suit schedule property.

In order to substantiate the claim, the Special Power

of Attorney Holder/son of the plaintiff examined as PW.1.

He has stated that plaintiff is the absolute owner of the

suit property, but he has not produced document of title to

prove that plaintiff is the absolute of the property in

question. There is nothing on record to show that plaintiff

is the absolute owner of the property in question.

Further, it is the specific case of the plaintiff that

defendant is the tenant. The plaintiff has not pleaded when

the defendant was inducted into tenancy and there is

absolutely no pleading to this effect. There is nothing on

record to show that the defendant was inducted into

tenancy and they both agreed that their relationship was

to be that of landlord and tenant. It is needless to say

that any jural relationship between two persons could be

created through agreement. In the present case, there is

neither an oral nor a written agreement between the

plaintiff and the defendant.

It is pertinent to note that plaintiff has pleaded that

from 01-04-2009, the defendant stopped paying the

monthly rent. But there is nothing on record to show that

plaintiff has received monthly rent at any point of time

from the defendant. Hence, the contention that he is in

arrears and thus liable to be evicted cannot be sustained.

Further, to prove the jural relationship, plaintiff has

relied upon documents (Exs.P-1 to P-11) encumbrance

certificate, legal notice, reply notice, paper publication,

photographs. I have perused the documents with care. In

my view, these documents do not prove the jural

relationship of landlord and tenant between the plaintiff

and the defendant.

It is the specific case of the plaintiff that she is the

landlord and defendant is the tenant under her on a

monthly rent of Rs.300/-. The burden is on her to

substantially establish the relationship. Accept her oral

testimony, plaintiff has not chosen to examine a

independent witness. In the absence of positive evidence,

one cannot conclude that there exists a relationship of

landlord and tenant between the plaintiff and defendant.

The Trial Court on proper appreciation of material on

record held that plaintiff has failed to establish that

defendant is a tenant on a monthly rent of Rs.300/- and

when there is a finding that the defendant is not a tenant,

question of payment of arrears of rent does not arise.

Consequently, the recovery of possession also does not

arise for consideration. I find no reason to interfere with

Judge's order.

8. Accordingly, the revision petition is dismissed.

No order as to costs.

Sd/-

JUDGE

SSD/LG