Karnataka High Court

Smt Chikkamma vs Sri Ganesh Rao on 26 September, 2022

Bench: E.S.Indiresh

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                                    CRP NO. 118 OF 2022




    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 26TH DAY OF SEPTEMBER, 2022

                        BEFORE

          THE HON'BLE MR. JUSTICE E.S.INDIRESH

    CIVIL REVISION PETITION NO.118 OF 2022 (SC)
BETWEEN:

SMT. CHIKKAMMA
AGED ABOUT 63 YEARS
W/O CHIKKANNA
R/AT NO.89/143
NAGARASABHE NO.38/39/12
I CROSS, JANATHA COLONY,
BBMP WARD NO.72,
GIDHADAKONAHALLI GRAMA
YESHWANTHAPURA HOBLI
BENGALURU NORTH-560 022.
                                           ...PETITIONER

(BY BRIJESH PATIL, ADVOCATE)

AND:

  1. SRI GANESH RAO
     S/O D DASHRATH RAO
     AGED ABOUT 30 YEARS
     R/AT 449, VENKATAPURA
     BESIDE MADIVALA POLICE QUARTERS
     MADIVALA
     BENGALURU-560 034.

  2. SRI RAMESH
     FATHER'S NAME IS NOT MENTIONED
     R/AT NO.89/143,
     NAGARASABHE NO.
     38/39/12, I CROSS,
     JANATHA COLONY,
     BBMP WARD NO.72,
     GIDHADAKONENAHALLI GRAMA
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                                            CRP NO. 118 OF 2022

      YESHWANTHAPURA HOBLI,
      BENGALURU NORTH-560 022.
                                                  ...RESPONDENTS
(BY SRI CHETHAN B, ADVOCATE FOR R1;
SRI SRIDHARA K M, ADVOCATE FOR R2)

     THIS CRP IS FILED UNDER SECTION 18 OF THE SMALL
CAUSES COURT ACT AGAINST THE JUDGMENT DATED 03RD
AUGUST, 2021 PASSED IN SC. NO. 1304 OF 2018 ON THE FILE
OF THE XVI ADDITIONAL JUDGE, COURT OF SMALL CAUSES,
BENGALURU, DECREEING THE SUIT FOR EJECTMENT.

    IN THIS PETITION ARGUMENTS BEING HEARD,
JUDGMENT RESAVED, COMING ON FOR "PRONOUNCEMENT OF
ORDERS", THIS DAY, THE COURT MADE THE FOLLOWING:

                              ORDER

This Civil Revision Petition is filed by the defendant No.1

in SC No.1304 of 2018 on the file of Court of Small Causes

Judge, Bangalore, challenging the judgment dated 03rd August,

2021, whereby the suit came to be decreed.

2. For the sake of convenience, the parties in this

petition shall be referred to in terms of their status and ranking

before the trial Court.

3. Brief facts for the adjudication of this petition are

that the plaintiff claims to be absolute owner of the suit

residential property bearing No.89/143 situate at

Gidadakonenahalli, Yeshawanthpura Hobli, Bangalore North

Taluk, totally measuring 800 sq.ft. The plaintiff has stated that

the plaintiff acquired the suit schedule property as per the

CRP NO. 118 OF 2022

registered Sale Deed dated 30th September, 2015 from its

erstwhile owner-Smt. Sujatha B. It is further averred that the

defendants have entered into oral rental agreement with the

said Smt. Sujatha agreeing to pay monthly rent of Rs.2,000/-

and same was continued to pay to the incumbent owner, after

the purchase of the suit schedule property by the plaintiff.

Thereafter, as the defendants have not paid the rent regularly,

the plaintiff requested the defendants to vacate the premises,

however, the defendants pleaded that they will pay

immediately after arranging the funds and are also making

alternative arrangements to shift from the schedule property.

Since the defendants have not vacated the land in question, the

plaintiff has issued legal notice dated 21st June, 2018, calling

upon the defendant to vacate the premises and in view of the

said fact, the plaintiff filed SC No.1304 of 2018 before the trial

Court, seeking relief of ejectment of defendants from the

schedule property.

4. On service of notice, defendant No.2 remained absent

and accordingly placed ex-parte. Defendant No.1 appeared and

filed detailed written statement disputing the schedule property

stated in the petition. It is the specific defence of the

defendant No.1 that the defendants are residing in the said

CRP NO. 118 OF 2022

premises for more than 35 years and therefore, disputed the

Sale Deed 30th September, 2019 executed in favour of the

plaintiff by the said Smt. Sujatha B. It is also the defence of

the defendant No.1 that the suit for ejectment is not

maintainable as the question of having over the property in

question to the plaintiff by his vendor does not arise and

accordingly, sought for dismissal of the petition. In order to

establish their case, plaintiff was examined as PW1 and

produced 16 documents and same were marked as Exhibits P1

to P16. On the other hand, defendant No.1 has examined the

defendant No.1 witness as DW1 and produced 8 document and

same marked as Exhibits D1 to D8. The trial Court, after

considering the material on record, by its order dated 03rd

August, 2021 directed the defendants to vacate the suit

schedule property within three months and feeling aggrieved by

the same, the defendant No.1 is before this Court in this

Revision Petition.

5. I have heard Sri Brijesh Patil, learned counsel

appearing for the petitioner; Sri Chethan B, learned Counsel

appearing for respondent No.1; and Sri Sridhara K.M., learned

counsel appearing for the respondent No.2.

CRP NO. 118 OF 2022

6. Sri Brijesh Patil, learned counsel appearing for the

petitioner argued that the plaintiff is not the owner of the

property in question and as such, disputed the ownership of the

plaintiff. He submitted that the said aspect has not been

considered by the trial Court. He further invited the attention

of the court to IA.No.1 of 2022 filed along with certain

documents and contended that the original vendor, as alleged

by the plaintiff as Narayana Rao, is not the owner of the

property in question and also stated that as per the

endorsement dated 02nd August, 2021 given by BBMP, no khata

has been made in favour of the property No. 89/143 and

accordingly, he submitted that the impugned judgment passed

by the trial Court requires to be interfered with by this court.

7. Per contra, Sri Chethan B., learned counsel

appearing for the respondent No.1 argued in support of the

impugned order passed by the trial Court and emphasis has

been made with regard to Exhibits P9 and P12 whereby, the

subject site has been given to the original vendor as per Hakku

patra by the Government and accordingly, he sought for

dismissal of the petition. Sri Sridhara K M, learned counsel

appearing for the respondent No.2 supports the submission

made by the learned counsel for respondent No.1.

CRP NO. 118 OF 2022

8. In the light of the submission made by learned

counsel appearing for both the parties, the principal submission

of the petitioner herein is that, questioning the title of

respondent/plaintiff. In this regard, careful examination of the

records would indicate that the Government has allotted site

bearing No.89/143, as per Exhibit P9 to one Narayana Rao and

the said Narayana Rao sold the schedule property in favour of

Smt. Sujatha B. as per the sale deed dated 06th February, 2013

(Exhibit P12) for consideration of Rs.8,45,000/-. In turn, the

said B. Sujatha, has sold the schedule property in favour of the

respondent/plaintiff herein as per the registered sale deed

dated 30th September, 2015 (Exhibit P13).

Respondent/plaintiff has produced khata certificate issued in

favour of the original allottee-Narayana Rao as per Exhibits P14

and P15. Tax paid receipts in respect of the property in

question is produced by the plaintiff. That apart, the petitioner

herein has produced the BESCOM Bill as per Exhibit D4 which

stands in the name of Sri Narayana Rao. Having looking into

the same, I have carefully examined the pleadings on record,

particularly the written statement filed by the

petitioner/defendant No.1, wherein at paragraph 11 of the

written statement, the petitioner/defendant No.1 averred that

the defendant No.1 is the lawful owner in possession of the

CRP NO. 118 OF 2022

schedule property. It is also stated in the written statement as

per paragraph 6.1 that the land bearing survey No.38 and 39

are Government land and the government has allotted the

respective sites to the residents. By looking into these aspects,

the defendant No.1 has not produced before the trial Court to

establish his right over the property. On the other hand, the

plaintiff/respondent herein has produced the parent document

to establish right over the schedule premises. In the cross-

examination of DW1, it is deposed that DW1 is Law Graduate

and further deposed that the Government has cancelled the site

made in favour of the defendant No.1, however, no cogent

documents have been produced before the trial Court. In that

view of the matter, though learned counsel appearing for the

petitioner vehemently contended by questioning the title of the

property, the same cannot be accepted in view of the fact that

documents produced by respondent/plaintiff would substantiate

that the petitioner herein has purchased the property from

Smt. Sujatha B, who had purchased the same from the original

allottee-Narayana Rao. In that view of the matter, I am of the

view that the finding recorded by the trial Court with regard to

issue No.1 is just and proper and do not call for interference in

this Revision Petition. That apart, though Exhibits D1 and D2

indicate that the survey No.38 and 39 are "sarkari Gomala",

CRP NO. 118 OF 2022

however, the schedule property is the part and parcel of survey

No.38 and 39.

9. Insofar as issue No.2 is concerned, DW1 deposed that

he is not the relative of defendant No.1 and states that

defendant No.1 is an orphan, however, is well aware of the fact

that the defendant No.2 is the son of the defendant No.1 and

defendant No.1 had another son. The DW1, being a Law

Graduate, cannot depose falsely knowing fully well with regard

to the factual aspects on record and therefore, it is to be

inferred that the petitioner herein has not approached the Court

with clean hands.

10. Further, a careful examination of the evidence on

record would indicate that the defendant No.1 is in possession

of the property and on careful examination of issue No.2 and 3

would indicate that the plaintiff has established with cogent

evidence that the premises was let out to defendant No.1 on

payment of rent of Rs.2,000/- per month. In that view of the

matter, as the plaintiff has proved that the notice under Section

106 of Transfer of Property has been issued, I am of the view

that there is no illegality or error in the impugned judgment

and decree passed by the trial Court and same is hereby

confirmed. At this juncture, recently, the Hon'ble Supreme

CRP NO. 118 OF 2022

Court in the case of GOPI ALIAS GOVERDHANNATH (DEAD) BY

LEGAL REPRESENTATIVES AND OTHERS v. BALLABH VYAS

reported in 2022 SCC ONLINE SC 1279, at paragraph 29 of the

judgment has observed thus:

"29. ...In terms of Section 109 of the Transfer of Property Act it is clear that attornment by the lessee is not necessary for the transfer of the property leased out to him. Thus, the inevitable consequence of transfer of a leased-out property by the landlord in accordance with law to a third party, in the absence of a contract to the contrary, is that the third party concerned would not only become its owner having title but also would step into the shoes of the vendor as the landlord in relation to the lease holder at the relevant point of time. In such circumstances, the finding s of the courts below that there exists jural relationship of landlord and tenant between the respondent and the appellants can only be held as the correct and lawful conclusion in the light of the evidence on record based on the legal position."

11. Further, it is pertinent to observe that the Hon'ble

Supreme Court in a catena of decisions observed that, "there

has to be a well-founded error and it may not be appropriate

for the court to scrutinize the orders, which upon the face of it,

bears a token of careful consideration and appear to be in

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CRP NO. 118 OF 2022

accordance with law. If one looks into the various judgments

of this Court, it emerges that the revisional jurisdiction can be

invoked where the decisions under challenge are grossly

erroneous, there is no compliance with the provisions of law,

the finding recorded is based on no evidence, material evidence