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2013 Supreme(Kar) 568
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
HULUVADI G. RAMESH, J.
Karthikeyan – Appellant
Vs.
Smt. M.S. Bharathi Srikanth – Respondent
Civil Revision Petition No. 290 of 2013
Decided On: 05.09.2013
Advocate Appeared
For Appellant/Petitioner/Plaintiff:Sri Ajesh Kumar for Sri Raj Prabhu S., Advocate
For Respondents/Defendant:Sri K.V. Narasimhan, Advocate
The central legal point established in the judgment is the determination of the nature of the defendant's possession under the Transfer of Property Act, 1882, particularly Section 53A, and the distinction between possession as a lessee and as a mortgagee.
Headnote:
Ejectment - Tenancy - Transfer of Property Act, 1882 - Section 53A, Specific Performance - Part Performance - Limitation - [Transfer of Property Act, 1882 - Section 53A, Specific Relief Act, 1963 - Part Performance, Limitation Act, 1963]
Fact of the Case:
The plaintiff filed a suit for eviction and damages against the defendant, a tenant in arrears of rent. The defendant claimed possession under a mortgage deed and sale agreement with the plaintiff's vendor. The Trial Court decreed the suit in favor of the plaintiff, leading to the defendant's petition for ejection.
Finding of the Court:
The Court found that the defendant's possession was not by virtue of the sale agreement but as a lessee, and not as a mortgagee. The Court dismissed the petition and ordered the release of the rent deposit in favor of the respondent.
Issues: The issues included the ownership of the premises, validity of tenancy termination, entitlement of relief, and the jurisdiction of the Small Causes Court to try ejectment suits.
Ratio Decidendi: The Court relied on the Transfer of Property Act, 1882, particularly Section 53A, to determine the nature of the defendant's possession and the applicability of part performance and limitation. The Court emphasized that the possession was not by virtue of the sale agreement but as a lessee, and not as a mortgagee.
Final Decision: The petition for ejection was dismissed, and the rent deposit before the Court was ordered to be released in favor of the respondent.
Huluvadi G. Ramesh, J.
1. Heard the learned Counsel representing the parties. This petition is arising out of the order dated 1-4-2013 passed by the XIII Small Causes Judge, Bangalore, in S.C. No. 1872 of 2011, decreeing the suit in favour of plaintiff-respondent and directing the defendant-petitioner herein to evict and deliver vacant possession of the residential premises bearing Old No. 134-B, New No. 116/5 (rear portion of the second floor), situated at 2nd Main Road, formerly 3rd Main Road, Vijaya Layout, Chamarajpet, Bangalore.
For the sake of convenience, the parties are referred to as per their rank before the Trial Court.
2. The defendant was a tenant under the plaintiff on a monthly rent of Rs. 4,000/-. He was in arrears of rent amounting to Rs. 56,000/-. In this connection, plaintiff got issued a legal notice dated 7-10-2009, asking the defendant to vacate the premises. As the defendant failed to vacate the premises, she filed a suit for a direction to the defendant to evict and deliver vacant possession of the petition schedule premises and also claimed damages incurred by her towards issuance of legal notice. The suit was contested by the defendant. According to the defendant, he was in possession of the petition premises since from the year 2000 onwards. The vendor of the plaintiff and defendant had entered into mortgage deed dated 10-4-2002 wherein the plaint schedule property has been mortgaged with the defendant for a sum of Rs. 2 lakhs. Subsequently, on 20-5-2005, both parties entered into House Sale Agreement for a total consideration of Rs. 18 lakhs and as such, the defendant is in possession of the petition schedule premises.
3. According to the plaintiff-respondent herein, the vendor of the plaintiff has sold the property in favour of plaintiff. There is no question of defendant being in possession of the petition schedule property under the so-called mortgage deed and also the other contentions taken by the defendant are bogus and baseless.
4. Based on the contentions of the parties, the following issues were framed by the Trial Court:
(1) Whether the plaintiff proves that she is the owner of the suit premises and defendant is tenant under her?
(2) Whether the plaintiff proves that the termination of the tenancy is valid and proper?
(3) Whether the plaintiff is entitled for relief?
(4) What order?
While answering the above issues in the affirmative, the Trial Court passed the order of ejection and hence, this petition is filed.
5. The learned Counsel appearing for defendant-petitioner herein relied upon the judgment of the Full Bench of this Court in the case of Abdul Wajid v. A.S. Onkarappa 2011(4) Kar. L.J. 414 (FB) : ILR 2011 Kar. 229 (FB), to contend that the Small Causes Court does not have jurisdiction to try the suits for ejectment. He also relied upon the judgment of Full Bench of this Court in the case of Narasimhasetty (deceased) by L.Rs v. Padmasetty 1998(3) Kar. L.J. 73 (FB): ILR 1998 Kar. 3230 (FB) : AIR 1998 Kant. 389 (FB), wherein it is held that Section 53A of the Act confers no title on the transferee but imposes a statutory bar on the transferor to seek possession of the immovable property and right of a transferee to defend his possession over a immovable property acquired pursuant to a contract and subject to fulfilment of statutory conditions contained in the said section is statutory in nature and cannot be whittled down on the equitable concept of latches or implied limitation. He also relied upon the decision of Apex Court in the case of Mahadeva and Others v. Tanabai AIR 2004 SC 3854 : (2004)5 SCC 88 : 2004 AIR SCW 3927 with regard to part performance of the agreement and on the point of limitation. The Apex Court has held that merely because the suit for specific performance at the instance of the vendee has become barred by limitation, that by itself is not enough to deny the benefit of the plea of part performance of agreement of sale to the person in possession. The learned Counsel
