2019 Supreme(Kar) 1675

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

Headnote:

Transfer of Property Act - Section 106 - Indian Evidence Act - Section 73 - Possession of plaint schedule property - Proof for terminating tenancy by issuance of notice - Whether trial court’s finding that there was valid termination of tenancy is correct - Whether relationship of landlord and tenant is proved between plaintiff and defendant it can be very well said that trial court has rightly appreciated evidence to hold existence of such relationship - Whether there was such a concluded oral contract or not would be a question of fact to be determined in facts and circumstances of each individual case - Whether a sentence or statement can be considered as stray - Whether it is possible to separate an answer from other consistent answers or statements tenor of answers must be seen - Pleading put forward by plaintiff is that she being absolute owner of plaint schedule property leased it to defendant on an oral lease between them - Defendant is running a business in hardware items under name and style of R.R. Steels Agency - It was a monthly tenancy on a rent - There was periodical enhancement in rent - On date of suit defendant was paying per month - After death of plaintiff’s husband she found it difficult to lead life and wanted to have a business set up for her son and therefore requested defendant to vacate plaint schedule property - Defendant did not heed to her request - She approached a free legal aid service centre which contacted District Legal Services Authority - District Legal Services Authority addressed a letter to defendant calling upon him to get matter settled before Lok Adalath – Held, Court agree with contention of Learned counsel for appellants to extent that there is no requirement of law that an agreement or contract of sale of immovable property should only be in writing - However in a case where plaintiffs come forward to seek a decree for specific performance of contract of sale of immovable property on basis of an oral agreement alone heavy burden lies on plaintiffs to prove that there was consensus ad-idem between parties for a concluded oral agreement for sale of immovable property - It has to be established by plaintiffs that vital and fundamental terms for sale of immovable property were concluded between parties orally and a written agreement if any to be executed subsequently would only be a formal agreement incorporating such terms which had already been settled and concluded in oral agreement - In case of supra this court has observed that one answer that he was running a tea stall was nothing but a stray answer which did not affect his other part of evidence that he was agricultural laborers - So also in another decision of this court in Centre it is held that a stray admission or statement of witness in his deposition should not be criteria or basis to arrive at a conclusion and it is duty of court to consider evidence in a case as a whole and its finding should depend upon cumulative effect of entire oral and documentary evidence - Judgment of Supreme Court throws some more light on this aspect - It is held that if a statement is found to be an inadvertent error or have been made unintentionally it is nothing but a stray sentence - In light of these principles if it is further analyzed it can be very well said that a stray answer has no value but what is of utmost importance is that a clear conclusion must be drawn whether a sentence or statement can be considered as stray - It may be possible that a witness whilst under cross-examination may falter owing to failure to grasp question posed to him or confusion in understanding a tricky question answer to which may possibly be construed disadvantageous to him - Therefore in a situation like this before drawing any inference whole evidence must be scrutinized to examine whether it is possible to separate an answer from other consistent answers or statements tenor of answers must be seen - If it is found that on a particular issue or aspect a witness has given answers consistently and it is improbable to expect an answer inconsistent with other part of evidence that particular statement or answer can be considered as stray sentence or statement or admission otherwise not - It is not every answer that goes against a witness can be considered as stray admission if this interpretation is given purpose of cross examination fails - Plaint may not indicate date of commencement of lease as argued by appellant’ counsel - It may be due to inartistic drafting it does not affect plaintiff’s case - Since lease is oral fifteen days advance notice is sufficient for termination - Trial court has rightly come to conclusion about termination of lease - Ex.P3 is copy of legal notice - Ex.P4 is postal receipt and Ex.P5 and Ex.P6 are postal acknowledgements - Notice was sent to defendant both to his business premises plaint schedule property and residential address - Ex.P5 shows notice being received by defendant himself and Ex.P6 shows receipt of notice by one - Vehement argument is that notice was not served at all and signature found on Ex.P5 is not signature of defendant - It was argued that at least court should have given a finding that disputed signature was compared with admitted signature in accordance with section 73 of Indian Evidence Act - This argument is untenable - Now court have compared signature found on Ex.P5 with signature of defendant found on written statement - To naked eye signatures appear to be of defendant himself - Whole argument of appellant’s counsel that there was no service of notice is untenable - Evidence shows valid termination of tenancy - Hence point No.(ii) is also answered is affirmative - Appeal is dismissed