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2019 Supreme(Kar) 1420
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
H.P. SANDESH, J.
Mrs. Palaniyamma W/o Pathadorai - Appellant
Versus
Mrs. Subbalakshmi W/o R. Ashok Kumar - Respondent
RFA No.1805 of 2013 (RES)
Decided On : 11-12-2019
For the Appellant : Sri. Venkoba Rao A., Adv. and Sri. L.S. Chikkanagowda, Adv.
For the Respondent: Sri. Younous Ali Khan, Adv.
Headnote:
Whether plaintiff proves that there is a landlord and tenant relationship between plaintiff and defendant on monthly rent per month exclusive of electric charges - Whether the plaintiff proves that she is entitled for arrears of rent being rent for the period - Whether plaintiff proves that she is entitled for damage at the rate per month - What decree or order – Held, Case on hand is clear that an amount of was deposited with original owner - Defendant and possession was delivered and there was recital in agreement that defendant need not pay rent and in lieu of rent she can continue possession premises - It is pertinent to note that Court below has taken note and not considered is marked without any objection - It is to be noted that this document is between son daughter in law and grand children of original owner - It is also pertinent to note that this document came into existence in year after gift deed was executed in year - In terms of this document an amount paid - Recitals in discloses that first party agrees that she would not demand rent from second party during continuance agreement and second party agrees that she will not demand any interest from first party for amount lent during continuance agreement - Documents are similar and these documents are executed after receiving amount Lakes on different dates - When such being case and when amount has been paid to original owner and beneficiaries in terms of gift deed then said amount has to be paid to tenant - When court comes to conclusion that there exists jurally relationship Court below ought to have directed plaintiff to deposit said amount and order defendant to quit and vacate premises - Same has not been done and Court below has committed an error in dismissing suit - Court below has committed an error in not appreciating documents available on record and erroneously dismissed suit without assigning reasons - Reasons assigned is only with regard to pay amount - Unless amount is paid in terms and defendant cannot be directed to quit and vacate premises - Court below ought to have ordered for deposit of amount and direct defendant to quit and vacate premises same has not been done - Appeal is allowed
JUDGMENT :
This appeal is filed challenging the judgment and decree of dismissal of suit bearing O.S.No.1767/2010 dated 6.9.2013 on the file of the III Addl. City Civil & Sessions Judge, Bangalore City (CCH-25).
2. For the sake of convenience, the parties are referred to as per their ranking before the Court below.
3. Brief facts of the case:
The plaintiff has filed the said suit before the Court below contending that the defendant was a tenant under one Smt. Chinnamma in the suit schedule property on a monthly rent of Rs.4,000/- excluding the electricity charges and she became her tenant by attornment, after she became the owner of the property by virtue of the sale deed dated 21.8.2008 executed by Smt. Chinnamma in her favour. The defendant became chornic defaulter and never paid the rent to her since the date of attornment and thereby became liable to pay the rental arrears of Rs.72,000/- till 20.2.2010. The plaintiff also issued termination notice dated 18.1.2010 demanding the arrears of rent also. But the defendant did not comply the terms of the notice even after its service. Hence, she was constrained to file this suit.
4. In pursuance of the suit summons, the defendant appeared and filed written statement denying the jural relationship of landlady and tenant and the plaint allegations made against her. The defendant also contends that she was not aware about the sale deed executed in favour of the plaintiff by Smt. Chinnamma though she resided in the suit house for more than 13 years. When the plaintiff started causing nuisance in the schedule premises, the defendant lodged the police complaint about the alleged attornment of tenancy which was not considered by the Police and she never agreed to pay the rents to the plaintiff. The plaintiff has no right to claim title over the suit property.
5. Based on the pleadings of the parties, the Court below framed the following issues:
1. Whether the plaintiff proves that there is a landlord and tenant relationship between the plaintiff and defendant on monthly rent of Rs.4,000/- per month exclusive of electric charges?
2. Whether the plaintiff proves that she is entitled for arrears of rent of Rs.72,000/- being rent for the period between 21.8.2008 till 20.2.2010?
3. Whether the plaintiff proves that she is entitled for damage at the rate of Rs.10,000/- per month ?
4. What decree or order?
6. The plaintiff in order to substantiate her case examined herself as PW-1 and got marked the documents as Exs.P-1 to 11. On behalf of the defendant, defendant herself is examined as DW-1 and got marked the documents at Exs.D-1 to 9. The Court below after having heard the arguments of the learned counsel for the plaintiff and the learned counsel for the defendant and considering the documentary evidence, answered issue No.1 in partly affirmative and has come to the conclusion that there is jural relationship of landlady and tenant, but negatived issue Nos.2 and 3 with regard to arrears of rent and also with regard to damages and has come to the conclusion that there was no rental agreement showing rate of rent as Rs.4,000/- per month and accordingly, dismissed the suit. Hence, the present appeal is filed before this Court.
7. The grounds urged in the appeal memo is that the Court below has rightly come to the conclusion that there exists jural relationship of landlady and tenant and despite having come to such a conclusion, the learned Trial Judge has dismissed the suit of the plaintiff erroneously and allowed the respondent to continue in possession of the suit schedule property till the plaintiff/appellant pays Rs.2 Lakhs to the respondent/defendant. The very approach of the Court below is erroneous in holding that the respondent is entitled to hold the possession of the suit schedule property till the return of Rs.2 Lakhs on the basis of the Ex.D-4 despite the fact that the said agreement is entered into between the respondent and the family members of Chinnamma and the said agreement is only a mere
