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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Sreenivas Harish Kumar, J.
P.Damodara Raju, S/o. P.Gunnaiah Raju – Appellant
Versus
Smt. R.S.Parameshwari W/o. Late Sarvanan – Respondent
Regular First Appeal No.153 of 2016
Decided On : 16-04-2019
Indian Evidence Act - section 73 - Transfer of Property Act - section 106 - Plant schedule property- Construct building - Whether trial court’s finding that there was valid termination of tenancy is correct - What order – Held, Defendant disputes relationship on two grounds firstly that he denied ownership of plaintiff in respect of plaint schedule property and secondly that oral lease has not been proved - In suit for eject men generally questions as regards title plaintiff does not arise but incidentally it can be looked into - In this case plaintiff has produced two documents to prove her title is sale deed and is tax paid receipt - Sale deed shows that plaintiff purchased plaint schedule property from one is tax paid receipt standing in name of plaintiff - To controvert plaintiff’s title defendant has not produced any document - On one breath he claims ownership and on other he claims adverse possession - Evidence on record clearly establishes plaintiff’s title - As has been rightly held by trial court defendant has not proved ingredients required for proving adverse possession rather his one answer in cross examination dislodges his contention that he has perfected his title over plant schedule property by adverse possession - His answer is that plaintiff’s husband allowed him to construct building in plaint schedule property and thus he took over its possession - This answer is sufficient to infer that defendant cannot assert adverse possession - Appeal dismissed
JUDGMENT :
The defendant in O.S.2590/2012 on the file of City Civil Judge, Bengaluru, is the appellant. The respondent being the plaintiff in the suit sought ejectment of the defendant from property bearing house list katha No. 1024, Premises No.1 in Sy.No.41 of Banaswadi Village, K.R.Puram Hobli, Bengaluru East Taluk, measuring East-West 40’ and North-South 48.5’ (referred to as ‘plaint schedule property’ hereafter).
2. The pleading put forward by the plaintiff is that she being the absolute owner of the plaint schedule property leased it to the defendant in the year 1990 on an oral lease between them. The defendant is running a business in the hardware items under the name and style of ‘R.R. Steels Agency’. It was a monthly tenancy on a rent of Rs.3,000/- p.m. There was periodical enhancement in the rent. On the date of the suit, the defendant was paying Rs.9,900/- per month. After the death of the plaintiff’s husband, she found it difficult to lead life and wanted to have a business set up for her son and therefore requested the defendant to vacate the plaint schedule property. The defendant did not heed to her request. She approached a free legal aid service centre called “Shree Sadguru Seva Samithi” which contacted the District Legal Services Authority. On 27.2.2006, the District Legal Services Authority addressed a letter to the defendant calling upon him to get the matter settled before the Lok Adalath. Since defendant did not respond to this, the plaintiff got issued legal notices to the defendant on 22.10.2006, 29.12.2006 and 10.5.2007 calling upon him to vacate and hand over the vacant possession of the plaint schedule property. Defendant did not oblige and then again on 26.12.2011 she issued one more notice to the defendant terminating the tenancy. The defendant received the notice and did not vacate. Hence, she instituted the suit.
3. The defendant not only denies the ownership of the plaintiff over the plaint schedule property but also her assertion that she leased this plaint schedule property to him orally in the year 1990. He has contended that there does not exist the relationship of landlord and tenant. According to him, he took over the possession of the plaint schedule property in the year 1990. Investing huge amount of money, he constructed a shop premises, and obtained power supply and started doing business in hardware items. The vacant possession adjacent to the shop is also in his possession. His specific contention is that he has perfected right, title and interest over the plaint schedule property by adverse possession and as such he cannot be evicted.
4. The trial court after appreciating the oral evidence of the witnesses and documentary evidence produced by the plaintiff, decreed the suit directing the defendant to deliver vacant possession of the plaint schedule property to the plaintiff within one month from the date of judgment. Aggrieved by this judgment, the defendant has preferred this appeal.
5. The trial court has recorded the following findings:
5.1. The plaintiff has claimed to be the absolute owner of the plaint schedule property and it is denied by the defendant. In order to establish the ownership over the plaint schedule property, the plaintiff has produced the documents Exs.P1 and P2, the registered sale deed and tax paid receipt respectively. The sale deed shows she is the absolute owner. Defendant has failed to prove his ownership. He has not produced any document in proof of his ownership, rather he claims adverse possession. Even this plea of adverse possession is not available, for the defendant does not state as to how and from what date his possession became adverse to the interest of the plaintiff.
5.2. The plaintiff has been able to prove that the defendant occupied the plaint schedule property in the year 1990 as a tenant. The lease was oral. Therefore, section 106 of the Transfer of Property Act (hereafter for short referred to as ‘the Act’) can be applied to hold that tenancy i
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