SMT. G. DEVAKI v. SRI. MOHSIN

3. SRI. MOHAMMAD S/O MOHSIN ARAB AGE. 42 YEARS, OCC. BUSINESS, R/O. 7/8, PATIL GALLI, YALLAPUR ONI, HUBBALLI-580021.

4. SRI. RASHEED S/O MOHSIN ARAB AGE. 40 YEARS, OCC. BUSINESS, R/O. 7/8, PATIL GALLI, YALLAPUR ONI, HUBBALLI-580021.

5. SRI. IMRAN S/O MOHSIN ARAB AGE. 35 YEARS, OCC. BUSINESS, R/O. 7/8, PATIL GALLI, YALLAPUR ONI, HUBBALLI-580021.

6. SRI. IRFAN S/O MOHSIN ARAB, AGE. 32 YEARS, OCC. BUSINESS, R/O. 7/8, PATIL GALLI, YALLAPUR ONI, HUBBALLI-580021.

7. KUMARI AMINA D/O MOHSIN ARAB, AGE. 27 YEARS, OCC. HOUSE WORK R/O. 7/8, PATIL GALLI, YALLAPUR ONI, HUBBALLI-580021. (BY SRI. S.S. NIRANJAN, ADV FOR R1 TO R7) …RESPONDENTS THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 01.02.2022 PASSED IN O.S.NO.2/2018 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI, PARTLY DECREEING THE SUIT FILED FOR ACTUAL AND VACANT POSSESSION, ARREARS OF RENT AND MESNE PROFITS. THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - NC: 2025:KHC-D:3908-DB RFA No. 100234 of 2022 C/W RFA No. 100294 of 2022 CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) These two appeals arise out of the judgment dated

01.02.2022 passed in O.S.No.2/2018 by the learned I Additional Senior Civil Judge, Hubballi.

2. For convenience, the parties are referred to, based on their ranking before the trial court. The appellant was the defendant and the respondents were the legal representatives of the deceased plaintiff.

3. Brief facts, leading rise to the filing of these regular first appeals are as follows:

4. The plaintiff filed a suit against the defendant, for ejectment, recovery of arrears of rent and mense profit. It is the case of the plaintiff that, the plaintiff is the absolute owner of the suit schedule property bearing Plot No.6, Sy.No.59/B, consisting of the ground floor, first floor - 5 - NC: 2025:KHC-D:3908-DB RFA No. 100234 of 2022 C/W RFA No. 100294 of 2022 and the second floor, situated at APMC, Ishwar Nagar, P.B.Road, Amargol, Hubballi. The defendant is a tenant in possession of the suit property on monthly tenancy under the lease agreement dated 01.03.2010 for 11 months. Initially, the rent of the premises was Rs.20,000/-per month for the ground floor and the first floor and an additional rent of Rs.25,000/- per month concerning the second floor. The defendant agreed to pay security deposit of Rs.20,00,000/- concerning the second floor and to pay a total rent of Rs.45,000/- per month. The defendant failed to pay the rent regularly. The defendant did not pay the security deposit as agreed. The plaintiff issued a legal notice dated 03.03.2014, terminating the tenancy of the defendant. The defendant gave evasive reply on

07.04.2014 and sought six months to pay the arrears of rent and the security deposit. Despite granting six months, the defendant did not obey her promise. The defendant is in arrears of rent from 01.03.2011 to 31.12.2017 i.e., 82 months, at the rate of Rs.45,000/- per month, amounting Rs.36,90,000/-. The plaintiff restricts her claim - 6 - NC: 2025:KHC-D:3908-DB RFA No. 100234 of 2022 C/W RFA No. 100294 of 2022 recovery of arrears of rent for 3 years. The plaintiff contended that the suit property is required for bonafide use and occupation of her sons. The plaintiff again issued a legal notice dated 02.03.2017 by terminating the tenancy and also calling upon the defendant to pay the arrears of rent. The defendant did not comply with the notice. Hence, a cause of action arose for the plaintiff to file a suit for ejectment, recovery of arrears of rent and mense profit. Accordingly, prays to decree the suit.

5. The defendant filed a written statement denying the entire averments made in the plaint, and also denied the relationship between the plaintiff and the defendant as the landlord and the tenant, and there is no cause of action to file the suit. It is the defense of the defendant that the husband of the plaintiff, namely, Mohsin Arab as a GPA holder of the plaintiff agreed to sell the schedule property by executing a sale agreement dated 29.06.2010 for valuable consideration of Rs.22,00,000/-, by receiving part consideration amount of Rs.20,24,500/- on various - 7 - NC: 2025:KHC-D:3908-DB RFA No. 100234 of 2022 C/W RFA No. 100294 of 2022 dates. The defendant was/is always ready and willing to pay the balance consideration amount of Rs.1,75,000/-. The defendant has invested a huge amount and installed machines and generators etc. It is contended that respectable persons in the locality interfered in the matter and in the presence of the elders, the plaintiff agreed to earnest money Rs.20,24,500/-, Rs.15,00,000/- spent for the construction of the showroom and Rs.8,00,000/- for the construction of the second floor, and Rs.9,50,000/- towards the installation of generator etc. She agreed to pay Rs.57,74,500/-. Hence, prays to dismiss the suit.

6. The defendant sought a counter claim for specific performance of the contract seeking direction to the plaintiff to receive the balance consideration amount and execute the registered sale deed, and an alternative prayer of refund of earnest money of Rs.20,25,000/-.

7. The plaintiff filed a rejoinder to the counter claim denying the counter claim of the defendant. It is also - 8 - NC: 2025:KHC-D:3908-DB RFA No. 100234 of 2022 C/W RFA No. 100294 of 2022 denied that the GPA holder agreed to sell the suit property for a consideration amount of Rs.22,00,000/-, and received Rs.20,24,500/-. It is contended that the counter claim of the defendant is barred by limitation. Hence, prays to dismiss the counter claim.

8. The trial court based on the pleadings of the parties, framed the following issues, and additional issues. 1) Whether plaintiff proves that defendant is a monthly tenant under plaintiff relating to suit schedule property as pleaded in the plaint? 2) Whether the plaintiff proves that she has terminated the tenancy of the defendant by issuing valid notice as pleaded in the plaint? 3) Whether plaintiff proves that defendant is a defaulter in payment of arrears of rent for Rs.16,20,000/- as pleaded in the plaint? 4) Whether defendant proves that suit is not maintainable? - 9 - NC: 2025:KHC-D:3908-DB RFA No. 100234 of 2022 C/W RFA No. 100294 of 2022 5) Whether plaintiff is entitled the vacant possession of the suit property as sought for? 6) Whether plaintiff is entitled the relief of mesne profits as sought for? 7) Whether plaintiff is entitled the relief as sought for? 8) What order or decree? Additional issues: 1) Whether the defendant proves that the husband of the plaintiff executed agreement of sale dated 29.06.2010 to sell the suit property for valuable consideration of Rs.22,00,000/- by receiving advance consideration Rs.20,24,500/- as pleaded in the counter claim? 2) Whether the defendant proves that she is ever ready and willing to perform her part of contract? - 10 - NC: 2025:KHC-D:3908-DB RFA No. 100234 of 2022 C/W RFA No. 100294 of 2022 3) Whether defendant is entitle for discretionary relief of specific performance of contract? 4) Whether defendant is entitle for alternate relief of refund of earnest money and damages? 5) Whether plaintiff proves that the counter claim is barred by law U/o 9 Ru.6(a) of CPC?

9. The plaintiff, to prove her case, plaintiff No.1(e) was examined as P.W.1 and marked 12 documents as Exs.P1 to P12. During the pendency of the suit, the original plaintiff died, her husband and children were brought on record. On the other hand, the defendant examined herself as D.W.1, examined two witnesses as D.Ws.2 and 3 and marked 10 documents as Exs.D1 to D10.

10. The trial Court, after recording the evidence, hearing on both sides and on assessment of the oral and the documentary evidence, answered issue Nos.1, 2, 5, 7 and additional issue No.5 in the affirmative, issue Nos.3 - 11 - NC: 2025:KHC-D:3908-DB RFA No. 100234 of 2022 C/W RFA No. 100294 of 2022 and 6 partly in the affirmative, issue Nos.4, and additional Nos.1 to 4 in the negative, and issue No.8, as per the final order. The suit of the plaintiff was decreed in part with costs vide judgment dated 01.02.2022. The defendant was directed to hand over the actual and vacant possession of the suit property to the plaintiff within 30 days from the date of the decree. The defendant was directed to pay arrears of rent amounting to Rs.10,80,000/- at the rate of Rs.30,000/- per month till 31.01.2017. The defendant is also directed to pay mense profits at the rate of Rs.30,000/- per month from 01.01.2018 till delivery of vacant possession of the suit property to the plaintiff. If the defendant fails to comply with the decree, the plaintiff is at liberty to file an execution petition and recover the same in accordance with law. The counter claim of the defendant was dismissed with costs. The defendant, aggrieved by judgment of the trial Court decreeing the suit and the dismissal of the counter claim, filed these two appeals. - 12 - NC: 2025:KHC-D:3908-DB RFA No. 100234 of 2022 C/W RFA No. 100294 of 2022

11. Heard the arguments of the learned counsel for the defendant, and the learned counsel for the plaintiffs.

12. Learned counsel for the defendant submits that the plaintiff through her GPA holder i.e., her husband agreed to sell the suit property for a consideration of Rs.22,00,000/- and paid Rs.20,24,500/- towards earnest money. He submits that, the defendant was/is always ready and willing to perform her part of the contract. He submits that the tenancy right was merged with the rent agreement, and there is no relationship between the plaintiff and the defendant as the landlord, and tenant. The defendant is in possession of the suit property, and the said aspect was not considered by the trial court property, and passed the impugned judgment. The impugned judgment passed by the trial court is perverse and arbitrary. Hence, he prays to allow the appeals.

13. Per contra, the learned counsel for the plaintiff submits that the plaintiff has let out the suit property to the defendant under lease agreement dated - 13 - NC: 2025:KHC-D:3908-DB RFA No. 100234 of 2022 C/W RFA No. 100294 of 2022

01.03.2010 for 11 months. Initially, the rent of the premises was Rs.20,000/-per month for the ground floor and an additional rent of Rs.25,000/- per month concerning the second floor. The defendant had agreed to pay the security deposit of Rs.20,00,000/-, but the defendant did not pay the security deposit. He submits that the plaintiff never agreed to sell the suit property as alleged by the defendant in the written statement. He submits that the defendant has not produced any sale agreement alleged to have been entered into between the GPA holder of the plaintiff and the defendant. The theory set up by the defendant regarding the alleged sale transaction is afterthought. The defendant has not issued a legal notice calling upon the plaintiff to execute the registered sale deed. He submits that the defendant has failed to prove that she was ready and willing to perform her part of the contract. He submits that the counter claim of the defendant is barred by limitation. The trial court was justified in passing the impugned judgment. Hence, on these grounds, he prays to dismiss the appeals. - 14 - NC: 2025:KHC-D:3908-DB RFA No. 100234 of 2022 C/W RFA No. 100294 of 2022

14. Perused the records, and considered submissions of the learned counsel for the parties.

15. The points, that would arise for our consideration are; 1) Whether the plaintiff prove that the defendant is in possession of the suit property as a tenant and terminating the tenancy by issuing valid notice? 2) Whether the defendant prove that the husband of the plaintiff executed sale agreement dated

29.06.2010 agreeing to sell the suit property for valuable consideration of Rs.22,00,000/- by receiving an advance consideration amount of Rs.20,24,500/-? 3) Whether the defendant prove that she is ever ready and willing to perform her part of the contract? 4) Whether the plaintiff prove that the counter claim of the defendant is barred by limitation? 5) What order or decree? - 15 - NC: 2025:KHC-D:3908-DB RFA No. 100234 of 2022 C/W RFA No. 100294 of 2022 Point Nos.1 to 3.

16. As Point Nos.1 to 3 are interlinked to each other, they are taken up together, for common discussion to avoid repetition of the facts.

17. During the pendency of the suit, the plaintiff died, her legal representatives were brought on record. The GPA holder of the plaintiff, i.e., plaintiff No.1(e) examined as P.W.1. He deposed that, the plaintiff is the absolute owner of the suit property and the said property was let out. Initially, the ground floor was let out to the defendant on monthly rent of Rs.20,000/- for 11 months. Subsequently, the plaintiff had let out second floor on additional rent of Rs.25,000/- p.m. It was agreed that the defendant to pay advance security deposit of Rs.20,00,000/-. The defendant did not pay the monthly rent regularly and she committed default. The plaintiff issued legal notice on 03.03.2014 by terminating the tenancy of the defendant. The defendant gave evasive reply. - 16 - NC: 2025:KHC-D:3908-DB RFA No. 100234 of 2022 C/W RFA No. 100294 of 2022

18. The LR's of plaintiff to substantiate their case produced the documents. Ex.P1 is the GPA, wherein the plaintiff gave GPA in favour of her son authorizing him to give evidence on her behalf in the suit. Ex.P2 is the RTC extract. Ex.P3 is the certified copy of the gift deed wherein the husband of the plaintiff gifted the suit property in favour of the plaintiff under the gift deed dated

20.11.2008. Ex.P4 is the legal notice dated 03.03.2014 terminating the tenancy of the defendant and requesting the defendant to handover the vacant possession of the suit property under the occupation of the defendant. Ex.P5 is the copy of the legal notice dated 02.03.2017 calling upon the defendant to deliver the vacant possession of the suit premises. Ex.P6 is the postal acknowledgment, which discloses that the defendant had received the legal notice on 04.03.2017. Ex.P7 is the rent agreement, which discloses that the plaintiff had let out the suit property in favour of the defendant under the rent agreement dated

01.03.2010 for 11 months, on monthly rent of Rs.20,000/- . Ex.P8 is the copy of the letter addressed by the plaintiff - 17 - NC: 2025:KHC-D:3908-DB RFA No. 100234 of 2022 C/W RFA No. 100294 of 2022 to the Hon’ble Chief Minister, Government of Karnataka. Ex.P9 is the copy of the reply received from the office of the Hon’ble Chief Minister on 30.01.2017. Ex.P10 is the copy of the complaint wherein the plaintiff gave complaint to the police station, Bengaluru. Ex.P11 is an endorsement issued by the police on 24.09.2017. Ex.P12 is the notice issued by the Central Bank of India to the plaintiff, wherein the plaintiff had borrowed money from the bank and she committed default. The Central Bank had initiated recovery proceedings under the SARFAESI Act and issued possession certificate in respect of the suit schedule property.

19. During the cross-examination of P.W.1, it is suggested that the rent agreement bears the signature of the parties on each page. The said suggestion was admitted by P.W.1. It is suggested to P.W.1 that the husband of the plaintiff, i.e., GPA holder agreed to sell the suit schedule property for a consideration amount of Rs.22,00,000/- and the defendant paid Rs.20,24,500/- as - 18 - NC: 2025:KHC-D:3908-DB RFA No. 100234 of 2022 C/W RFA No. 100294 of 2022 advance consideration amount. The said suggestion was denied by P.W.1. Except suggesting that the GPA holder of the plaintiff agreed to sell the suit schedule property, nothing has been elicited from the mouth of this witness to disbelieve the evidence.

20. In rebuttal, the defendant examined herself as D.W.1. She has deposed that the GPA holder of the plaintiff agreed to sell the suit schedule property for a consideration of Rs.22,00,000/- and paid Rs.20,24,500/- towards advance consideration amount. The defendant was ready and willing to perform her part of the contract. The plaintiff did not perform her part of the contract. During the cross-examination, D.W.1 had admitted that in 2009, the defendant had taken four shops on rent. She admits that, initially she has taken rent of the ground floor portion. When Ex.P7 confronted to her, she identifies her signature, which is marked as Ex.P7(b) and also identifies her photo on Ex.P7. She also admits that initially, the rent was fixed at Rs.20,000/- p.m. - 19 - NC: 2025:KHC-D:3908-DB RFA No. 100234 of 2022 C/W RFA No. 100294 of 2022

21. Further, the defendant in her defense has produced the documents. Ex.D1 is the cancellation of the sale agreement, which discloses that agreement of sale was executed in favour of Mallikarjunaiah s/o Gangayya Malimath, wherein she had agreed to sell the suit property under the sale agreement dated 29.06.2010, and the said agreement was cancelled as per Ex.D1. Ex.D2 is the copy of the legal notice issued by the plaintiff on 14.03.2014 calling upon the defendant to vacate and hand over the vacant possession of the suit property. Ex.D3 is the copy of the reply to the legal notice dated 14.03.2014. The defendant admitted the relationship between the plaintiff and the defendant as a landlord and the tenant. But the defendant has contended that the husband of the plaintiff representing himself as GPA holder of the plaintiff entered into a sale agreement on 29.06.2010 to sell the ground floor i.e., shop No.1 and the first floor tenanted premises along with terrace rights, i.e,. Half constructed second floor comprised in R.S.No.59/B, plot No.6, situated at Ishwar Nagar, Amargol, Hubballi for Rs.22,00,000/- by - 20 - NC: 2025:KHC-D:3908-DB RFA No. 100234 of 2022 C/W RFA No. 100294 of 2022 receiving a part payment of Rs.10,40,000/-, and it was agreed by the defendant and the husband of the plaintiff that, no rent is required to be paid to the plaintiff. The husband of the plaintiff received Rs.9,85,500/- towards part payment through cheque. Thus, the defendant has paid Rs.20,24,500/- and the defendant invested a huge amount and called upon the plaintiff to execute the registered sale deed. Ex.D4 is the copy of the reply notice dated 04.04.2017 reiterating the contents of Ex.D3. Ex.D5 is the bank statement of G.Saraswathi w/o S.Govindrajan. Ex.D6 is also the bank statement of the Oriental Bank of Commerce of M/s Aven tech Entrepreneurs, Ex.D7 is the statement of Indian Overseas Bank of M/S Women Enterprises. Ex.D8 is the letter of HESCOM addressed to the defendant on 21.10.2010. Ex.D9 is the rating report issued by the HESCOM on 21.02.2011. Ex.D10 is the receipt dated 02.12.2010 having paid the electricity consumption charges. - 21 - NC: 2025:KHC-D:3908-DB RFA No. 100234 of 2022 C/W RFA No. 100294 of 2022

22. Further, D.W.1 has admitted the relationship between the plaintiff, and the defendant as the landlord and the tenant, rates and rent etc. The admission of the defendant has been extracted by the trial court in para 18 of the impugned judgment. In view of the admission of D.W.1 regarding the relationship between the plaintiff and the defendant as the landlord and the tenant. The plaintiff has proved that the said admission of the defendant is sufficient to hold that there was a relationship between the plaintiff and the defendant. The plaintiff issued a legal notice terminating the tenancy of the defendant. Though, the defendant did not reply to the legal notice as per Ex.P4, but replied to the legal notice as per Ex.P5 vide reply notices as per Exs.D3 and D4. The plaintiff by giving 15 days prior notice has terminated the tenancy.

23. The defence of the defendant is that the husband of the plaintiff executed a sale agreement dated

29.06.2010 agreeing to sell the suit property for valuable consideration of Rs.22,00,000/-, by receiving advance - 22 - NC: 2025:KHC-D:3908-DB RFA No. 100234 of 2022 C/W RFA No. 100294 of 2022 consideration amount of Rs.20,24,500/-. Though the, plaintiff issued a legal notice dated 03.03.2014 terminating the tenancy of the defendant, the defendant did not reply to the legal notice. Further, the defendant has not produced the sale agreement alleged to have been executed by the GPA holder of the plaintiff. The defendant has examined one Nagaraj Heggannavaras as D.W.2, who deposed that, on 29.06.2010, the plaintiff cancelled the agreement of sale dated 21.11.2008 entered into between the plaintiff and the defendant, and one Mallikarjunaiah s/o Gangayya Malimath has received the earnest money given by him to the plaintiff in his presence. The cancellation of the agreement bears his signature and his signature is marked as Ex.D1(b). The evidence of D.W.2 does not prove the defence of the defendant regarding the execution of the alleged agreement of sale in favour of the defendant by the GPA holder of the plaintiff.

24. The defendant also examined one Kalusingh Chavan as D.W.3. He deposed that, the plaintiff cancelled - 23 - NC: 2025:KHC-D:3908-DB RFA No. 100234 of 2022 C/W RFA No. 100294 of 2022 the agreement of sale dated 21.11.2008 as per Ex.D1. He also deposed that, the GPA holder of the deceased plaintiff entered into a sale agreement on the same day and received the earnest money in his presence. During the cross-examination, it is elicited that, before the execution of Ex.D1, the defendant was in possession of the suit property. She pleads ignorance in what capacity, the defendant was in possession of the suit property. He pleads ignorance that, who has drafted Ex.D1. It was elicited that the defendant drafted Ex.D1, and obtained the signature of D.W.3. He pleads ignorance that plaintiff has not signed Ex.D1.

25. It is the case of the defendant that,s the GPA holder of the plaintiff agreed to sell the suit property in

2010. The plaintiff issued a legal notice dated 03.03.2014. The defendant did not reply to the said legal notice. Thereafter, the plaintiff issued another legal notice dated

02.03.2017. The defendant replied to the said legal notice - 24 - NC: 2025:KHC-D:3908-DB RFA No. 100234 of 2022 C/W RFA No. 100294 of 2022 as per Ex.D4. If really, there was an agreement of sale between the GPA holder of the plaintiff and the defendant, the defendant ought to have taken steps to enforce the alleged agreement of sale within a reasonable time. Since 2013, till filing of the written statement, the defendant has failed to prove that she was/is ready, and willing to perform her part of the contract. The defendant has not examined any witness, who was present at the time of execution of the alleged agreement of sale. The defendant has failed to establish that the plaintiff agreed to sell the suit property through the GPA holder. The defendant has also not produced the GPA.

26. The alleged agreement was executed in 2010 and the plaintiff issued a legal notice in 2013. The defendant did not reply to the said legal notice. The defendant did not file a suit for specific performance of the contract within three years from the date of denial, as per Article 54 of the Limitation Act. The defendant had failed - 25 - NC: 2025:KHC-D:3908-DB RFA No. 100234 of 2022 C/W RFA No. 100294 of 2022 to establish, that the GPA holder of the plaintiff executed an agreement to sell the suit property, and received Rs.20,24,500/-. Except oral testimony of D.W.1, the defendant had not produced any records to establish the execution of the sale agreement. Since 2013, the defendant has failed to establish that she was/is always ready, and willing to perform her part of the contract. The defendant did not fulfill the requirements of Section 16(c) of the Specific Relief Act, 1963. Based on the above discussion, we answer point No.1 in the affirmative and point Nos.2 and 3 in the negative. Point No.4.

27. It is the case of the defendant that in 2010, the GPA holder of the plaintiff has agreed to sell the suit property, and received an advance consideration amount of Rs.20,24,500/-. The plaintiff issued legal notice dated

03.03.2014 as per Ex.P4. The defendant did not reply to the said legal notice. The plaintiff issued another legal notice dated 02.03.2017. The defendant replied to the said - 26 - NC: 2025:KHC-D:3908-DB RFA No. 100234 of 2022 C/W RFA No. 100294 of 2022 legal notice on 07.04.2013. However, the defendant has not taken any steps from 08.04.2013 within three years from the date of denial. The limitation for filing a suit for specific performance, as per Article 54 of the Schedule to the Limitation Act, 1963 is 3 years from the time fixed for performance or if no such time is fixed, from the date of denial. The defendant had not filed a suit within three years from the date of denial. The counter claim made by the defendant regarding specific performance of the contract is barred by the limitation. Based on the above discussion, we answer point No.4 in the affirmative. Point No.5.

28. As, We have already answered point Nos.1 to 4 in favour of the plaintiff. Accordingly, we proceed to pass the following: i) ii) ORDER Both the Appeals are dismissed. The judgment dated 01.02.2022 passed in O.S.No.2/2018 by the learned I Additional - 27 - NC: 2025:KHC-D:3908-DB RFA No. 100234 of 2022 C/W RFA No. 100294 of 2022 Senior Civil Judge, Hubballi, is hereby confirmed. iii) No order as to the costs. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE MBS CT: BSB List No.: 1 Sl No.: 10