IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JULY, 2017 BEFORE THE HON’BLE MR.JUSTICE B.SREENIVASE GOWDA R.S.A.No.1761/2014 Between:
AMEER GUNNY TRADERS A REGISTEREDE PARTNERSHIP FIRM HAVING THE PLACE OF BUSINESS AT MARUTHI COMPLEX, B H ROAD, SHIVAMOGGA. REPRESENTED BY ITS PARTNER LIYAKHATH ALI S/O LATE M ABDUL AJEEZ, AGED ABOUT 36 YEARS, R/O 1ST MAIN ROAD, 1ST STAGE, R M L NAGAR, SHIVAMOGA-577201. .. APPELLANT (By Sri PRASAD B S, ADVOCATE) AND 1. SMT SULOCHANA W/O NAGARAJAPPA, AGED ABOUT 70 YEARS.
2. N SOMASHEKHAR S/O NAGARAJPPA AGED ABOUT 45 YEARS.
3. N NATARAJ S/O NAGARAJAPPA, AGED ABOUT 42 YEARS.
ALL ARE RESIDENTS OF R/O NO.18, 3RD CROSS, SAMEER PURAM, CHAMARAJPET, BANGALORE-560018. .. RESPONDENTS (By Sri P N HARISH, ADVOCATE FOR R2, R1 – SERVED, R3 – SERVICE OF NOTICE IS HELD SUFFICIENT V/C/O DTD:14.9.2016) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 21.8.2014 PASSED IN R.A.NO.45/2013 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE, SHIVAMOGGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 19.1.2013 PASSED IN OS.NO.329/2005 ON THE FILE OF I ADDITIONAL CIVIL JUDGE AND JMFC, SHIVAMOGGA.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the plaintiff challenging the concurrent judgments and decrees of the Courts below whereby the suit of the plaintiff filed for the relief of permanent injunction has been dismissed by the Trial Court and it was confirmed by the First Appellate Court.
2. Heard the learned counsel appearing for the appellant and learned counsel appearing for the respondents and perused the judgments and decrees passed by the courts below.
3. Sri B S Prasad, learned counsel appearing for the appellant/plaintiff submits that the respondents having no manner of right, title or interest over the suit schedule property tried to interfere with the possession and enjoyment of the plaintiff over the suit schedule property on the ground that they are successors of the suit property. Therefore, the appellant was forced to file a suit in O.S.No.329/2005 against the respondents for the relief of permanent injunction restraining the respondents from interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property. Learned counsel submits that the appellant aggrieved by the part of the decree in so far as granting the relief of permanent injunction restraining the defendants from dispossessing the plaintiff from the suit schedule property without following due process of law and holding that defendants are entitled to claim rents from the plaintiff as agreed between the parties and they are entitled to receive the entire amount of rents deposited before the Court, preferred a regular appeal in RA No.45/2013 on the file of the II Additional Senior Civil Judge, Shivamogga. Learned counsel submits though respondents have not established that they are successors of the suit schedule property, the Trial Court has erred in decreeing the suit of the plaintiff and the 1st Appellate Court has also committed error in confirming the said judgment and decree passed by the Trial Court by dismissing the appeal filed by the appellant. Therefore, he prays for admitting the appeal for considering the substantial questions of law urged in the appeal.
4. Sri P N Harish, learned counsel appearing for the 2nd respondent submits that the appellant was residing in the suit schedule property as a tenant.
After respondents declared as successors of the suit property by virtue of the order passed in P & SC No.12/2004 filed a suit in OS No.218/2013 for recovery of possession of the suit schedule property from the appellant. The suit was decreed on 14.3.2016 directing the appellant herein to deliver vacant possession of the suit schedule property to the respondents. Since the appellant failed to vacate and deliver the vacant possession of the suit schedule property to the respondents, the respondents filed Ex.P No.136/2016 for executing the decree and to recover the possession of the suit property through Court and therefore he prays for dismissal of the appeal.
5. It is not in dispute that the appellant was residing in the suit schedule property as a tenant. After the respondents declared as successor of the suit schedule premises by virtue of the order passed in P & SC No.12/2004 they filed a suit in OS No.218/2013 against the appellant for recovering possession of the suit premises. The suit was decreed and the appellant was directed to deliver vacant possession of the suit schedule property to the respondents and pay arrears of rent. Since appellant failed to deliver vacant possession of the suit schedule property to the 2nd respondent, the 2nd respondent filed an execution petition in EP No.136/2016 and recovered possession of the suit schedule property from the appellant through Court. The 1st Appellate Court considering the above aspect of the matter rightly dismissed RA No.45/2013 preferred by the appellant challenging the judgment and decree dated 21.8.2014 passed by the Trial Court in OS No.218/2013.
In view of the above, the appeal does not survive for consideration.
Accordingly, the appeal is dismissed as devoid of merit.
In view dismissal of the main appeal, IAs do not survive for consideration and they are rejected.
SD/- JUDGE Bkm.