TEJABIR SINGH Vs. WAHID KHAN AND ANOTHER

JUDGEMENT

(1.) HEARD the learned Counsel representing the parties. This petition is filed against the order passed by the I Additional Small Causes Judge, in S.C. No. 1581 of 2011, dated 30th October, 2012. It is the case of the plaintiffs -respondents that they purchased the suit schedule property bearing No. 61, situated at H. Siddaiah Road, Bangalore, from the erstwhile owners under two sale deeds dated 26 -3 -2001. The defendant -petitioner herein is said to be the tenant under the vendor of the respondents and he is running a welding shop. The tenancy was renewed from time to time and also petitioner was paying monthly rent of Rs. 7,000/ - per month. It is contended by the plaintiffs that, from 26 -3 -2011 they became absolute owners and are in possession of suit schedule property. Plaintiff 1 is doing his business in two shops situated in the ground floor of premises bearing old No. 15, later No. 7, the present number is 7/1 -1, 3rd Cross, Journalist Colony, Bangalore. They issued legal notice to the petitioner to vacate and hand over the premises. But, the defendant did not vacate and hence, they filed the suit. The matter was contested before the Trial Court by filing written statement contending that there exists no relationship of landlord and tenant and also stating that plaintiffs have no right to seek eviction. The Trial Court having raised as many as four points for consideration, held all the three points in the affirmative and passed an order of eviction. Further it was ordered that the plaintiffs are liable to pay Rs. 90,000/ - to the defendant or to adjust the amount out of damages i.e., rent at the rate of Rs. 7,000/ - per month from the date of purchase i.e., on 26 -3 -2011. Against which, this petition is filed by the petitioner -defendant among various other grounds.

(2.) THE first ground raised by the petitioner herein is that there exists no relationship of landlord and tenant, he was tenant under the vendor of the respondents and he perfected his title by adverse possession. It is his case that, as per Section 106 of the Transfer of Property Act, 1882, 15 days clear notice has to be given for eviction and even before the expiry of 15 days, the suit was filed and accordingly, sought for setting aside the impugned judgment. What is not in dispute is that, so far as attornment is concerned, the plaintiffs' vendor is said to have issued notice to the petitioner -defendant regarding sale made in favour of plaintiffs with respect to the property of which the defendant is said to be in occupation, which is a shop premise. It is also stated that he was paying monthly rent of Rs. 7,000/ - as on the date of filing of the suit. The defendant claimed adverse possession over the shop premise. The Trial Court opined that there exists relationship of landlord and tenant between the parties and attornment notice was issued in this regard and the defendant was paying monthly rent of Rs. 7,000/ -. Accordingly, the Trial Court directed the plaintiffs to pay an amount of Rs. 90,000/ - i.e., the advance paid by the defendant in favour of plaintiffs' vendor. So far as issuance of notice is concerned, it is said to have been issued on 4 -6 -2011. The suit is filed on 25 -6 -2011. By referring to the endorsement and the postal shara i.e., postal seal is affixed on 10 -6 -2011, the learned Counsel for the petitioner argued that there is no clear 15 days notice etc. The seal affixed on the cover notice might be of 10 -6 -2011. Ultimately, when it has reached the defendant is not clear from the postal shara nor it has been explained. The notice is said to be dated 4 -6 -2011 and suit is filed on 25 -6 -2011. It is also noticed that the notice was returned as not claimed. In that view of the matter, notice is deemed to have been served on the defendant by virtue of the shara of the postal department, might be between 4 -6 -2011 to 10 -6 -2011. As such, there appears to be clear 15 days notice as per Section 106 of the Transfer of Property Act and defendant was unable to establish his right as to adverse possession and also semblance of right. Rightly the Trial Court passed an order of eviction which does not call for interference. However, since petitioner is running the shop premises, he is given one year time to vacate and hand over vacant possession of the premises, subject to he filing an undertaking to the effect that he shall go on paying the monthly rent of Rs. 7,500/ - and that after completion of one year from today, he will vacate and hand over vacant possession of the premises within four weeks from today. Failing which, the respondents -plaintiffs will proceed against him by filing an execution petition.