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2013 DIGILAW 1053 (KAR)

Karthikeyan v. M. S. Bharathi Srikanth

2013-09-05

H.G.RAMESH

body2013
ORDER 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? (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 appearing for the defendant-petitioner submits that the plaintiff had filed the suit after lapse of three to four years from the date of purchase of property. 6. On the other hand, learned Counsel appearing for the plaintiff-respondent contended that the defendant was in possession as a lessee under an unregistered document which is termed as mortgage deed, the sanctity of which has to be looked into. 6. On the other hand, learned Counsel appearing for the plaintiff-respondent contended that the defendant was in possession as a lessee under an unregistered document which is termed as mortgage deed, the sanctity of which has to be looked into. He further contended that for receipt of money, there is no endorsement by the vendor of the plaintiff, rather the vendor had executed a sale deed for Rs. 27 lakhs in favour of plaintiff by receiving cash and other modes of payment. The defendant is in illegal possession of the petition premises and the so-called mortgage deed and endorsement thereon are concocted and created and as such, the plaintiff had issued a notice to the petitioner for termination of tenancy. He further submitted that the Trial Court having taken note of these facts, rightly ordered the defendant to evict and hand over vacant possession of the petition schedule premises. He further submits that there is no endorsement made by the original vendor for having received the sale consideration from the defendant. In that situation, rightly the Trial Court has decreed the suit and ordered to evict and as such, there is no illegality in order and prayed for dismissal of this petition. 7. As per the registered document relied upon by the respondent herein, it is said to be a sale deed executed by the original vendor in favour of plaintiff, whereas the so-called mortgage deed executed in favour of defendant by the vendor of the plaintiff cannot be treated as a sale agreement. However, petitioner is said to be in occupation/possession of the petition schedule premises since from 1999 and may be from time to time i.e., once in three years, the document styled as mortgage deed is executed. But the said transaction has been never registered as per the requirement of the Act. When the value of the property is more than Rs. 100/-. If it is not registered, then there is no sanctity in the mortgage deed and should not be treated as a document of mortgage. Insofar payment of amount by the defendant is concerned to the vendor of the plaintiff, the same is not acknowledged nor the vendor of the plaintiff has been examined before the Court to prove the receipt of money. Insofar payment of amount by the defendant is concerned to the vendor of the plaintiff, the same is not acknowledged nor the vendor of the plaintiff has been examined before the Court to prove the receipt of money. All the decisions relied upon by the learned Counsel for the petitioner would show that he is trying to convert this case as a suit for declaration and to make it as a complicated issue. When once the matter has been decided by the Trial Court in respect of arrears of rent and damages and also when the notice has been issued to the petitioner herein by the respondent for termination of the tenancy, the same does not call for interference. Even though there is no intention for filing a suit for specific performance, as per Section 53 of the Transfer of Property Act, 1882, the fact remains that the possession of this petitioner is not by virtue of the sale agreement. Originally he has been put in possession as a lessee and even not as a mortgagee. Therefore, it is not correct to say that the petitioner is in possession of the petition premises under part performance of the agreement. The stand taken by the petitioner to make out a case for specific performance needs no result. Petition is dismissed. The amount of rent in deposit before this Court shall be released in favour of the respondent.