Mohammed Ibrahim vs Sheeraz Banu

A.V. Chandrashekara, J.—The present petition is filed challenging the order of eviction passed by the learned Judge MACT, Court of Small Causes, Bangalore SCCH 4 dated 4.9.2014 in HRC No. 485/07.

Petition filed under Section 27(a) and (r) of Karnataka Rent Act 1999 has been allowed and consequently petitioner herein has been directed to vacate and handover vacant possession of the schedule property measuring in all 120 Sqft and also to pay a sum of Rs. 3,500/- which is due from 1.10.2004 to 31.8.2007 as arrears of rent. It is this order which is called in question on various grounds as set out in the present petition.

Petition schedule property is below 14 sqmtr. and it is a commercial property situated in Bangalore. It is the case of the respondent herein that schedule property was allotted to the present petitioner by the Rent Controller in HRC 29/91-92 and as such he is in possession of the schedule property as statutory tenant. The petitioner is stated to be a chronic defaulter in the matter of paying rents and rent is not paid from 1.10.2014. According to her, the present schedule property is required for her bona fide use and occupation as she is already carrying on business in scraps under the name and style "Akash Enterprises". Inspite of issuing legal notice calling upon the petitioner to vacate and handover vacant possession, the petitioner did not respond. Hence, she was forced to file a petition for eviction.

The petitioner herein has filed detailed objections opposing the petition application on various grounds inter alia contending that petition for eviction is not maintainable either in law or facts and that the very identity of the property is in dispute and that he has acquired the title by adverse possession being in possession for more than 17 years and that he has not paid rents to any person and that there were several landlords after the original owner Ismail Khan, who sold the property to Saleem and who inturn sold the same to Mehaboob Pasha. The petitioner herein is stated to have purchased the property from Mehaboob Pasha. It is his case that the earlier owners did not claim any arrears of rent and as such there is no relationship of landlord and tenant.

Perused the entire records of HRC 485/2007.

The schedule property bearing property No. 531 is carved out of converted land in Sy. No. 5 of Annipura village now bearing Corporation No. 10-1 situated at 7th Cross, H. Siddaiah Road, Corporation Division 48, Bangalore 560027 measuring East to West 13 feet and North to South 10 feet, the plinth area of which measures 130 square feet. Hence, Karnataka Rent Act is applicable.

The petitioner herein has taken up a clear stand that he has perfected title by adverse possession. His contention is that he has been in possession for over a period of 17 years without any hindrance and earlier owner did not make any claim for arrears of rent. The fact that property in question was sold to Mehaboob Pasha by the original owner is not in dispute and the said Mehaboob Pasha has sold the schedule property in respect of Smt. Sheeraz Banu respondent herein through a registered sale deed which is marked as Ex. P-2. She has similarly purchased one more property which is adjacent to the schedule property, which is forthcoming in Ex. P-3 the original sale deed. Consequent upon sale deeds executed in her favour, katha has been changed by the Bangalore City Municipal vide Ex. P-4 to 6. She has been carrying on business in scrap materials and it is evident from Ex. P-7 Central Excise registration certificate. Ex. P-8 is the registration certification issued by Department of Labour. Ex. P-10 is the copy of the legal notice issued through her advocate calling upon the petitioner to vacate and handover vacant possession of the schedule property. Mere possession of the property for over a period of 12 years would be insufficient to claim title by way of adverse possession. The very fact that the petitioner herein has taken up the plea of adverse possession would go to show that he has admitted the title of the present respondent herein. If earlier owner had got issued legal notice terminating his tenancy and if he had kept quiet for more than 12 years, the plea of adverse possession would have got some force.

Admittedly, the present petitioner got issued legal notice in the year 2004 soon after the purchase of schedule property from the original owner and therefore question of plea of adverse possession cannot be countenanced as legal or valid. Though PW-1 who is the husband of petitioner and GPA holder has been examined at length, nothing has been culled out from his mouth to discredit his deposition. If the petitioner herein was really intended to focus on the identity of the property, he could have got a Commissioner appointed to support the plea of identity. The records disclose that the application so filed for appointment of Commissioner has been dismissed by the Trial Court through considered order.

Suffice to state that the petitioner herein has failed to make a clear case of adverse possession. On the other hand, the respondent has been able to prove that she has acquired title from the lawful owner and that the tenancy has atorned in her favour. All these aspects have been well dealt by the Trial Court while appreciating the evidence on record. There is no merit in the present petition. Hence, the petition is liable to be dismissed as unfit for admission.

ORDER

Petition is dismissed as unfit for admission.

In view of the fact the petitioner is a business man carrying business in scrap, reasonable time has to be granted to vacate the schedule property. Accordingly, three months time is granted to the petitioner to vacate and hand over the vacant possession of the schedule property and in the event of failure to do so, the respondent herein is at liberty to file an execution petition.

Rent in deposit if any before this Court is ordered to be paid to the respondent herein.

All other conditions imposed by the Trial Court remain unaltered.