In The High Court Of Karnataka At Bengaluru DATED THIS THE 4TH DAY OF NOVEMBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Regular Second Appeal No. 1696 OF 2019 Between:
1. BHADRE GOWDA SON OF ANNE GOWDA AGED ABOUT 57 YEARS RESIDING AT SANTHE MAIDANA ALDUR AT AND POST CHIKKAMAGALURU TALUK & DISTRICT – 577 101 2. SMT H S BHAGYA WIFE OF BHADRE GOWDA AGED ABOUT 35 YEARS RESIDING AT SANTHE MAIDANA ALDUR AT AND POST CHIKKAMAGALURU TALUK & DISTRICT – 577 101 ... APPELLANTS (BY SRI VIGHNESHWAR S.SHASTRI, ADVOCATE) And:
SMT NAGARATHNAMMA WIFE OF R SATHISH AGED ABOUT 62 YEARS RESIDING AT SANTHE MAIDANA ALDUR AT AND POST CHIKKAMAGALURU TALUK & DISTRICT – 577 101 (BY SRI R.NATARAJ, ADVOCATE) ... RESPONDENT THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 22.08.2019 PASSED IN R.A.No.25/2019 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND CJM., CHIKKAMAGALURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 23.03.2019 PASSED IN O.S.No.7/2017 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC., CHIKKAMAGALURU.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is by the defendants in O.S.No.7/2017 on the file of the II Additional Civil Judge & JMFC., Chikkamagaluru (for short, ‘the trial Court’). The suit in O.S.No.7/2017 is by the respondent for eviction of the appellants from the residential premises bearing Panchayath assessment No.196, B.H. Road, Havalli, Chikkamagaluru Taluk (for short, ‘the subject property’). The trial Court by its judgment dated 23.03.2019 has decreed the suit, directing the appellants to quit and hand over vacant possession of the subject property to the respondent within a period of three months from the date of the decree. Further, the trial Court has also declared that the respondent is entitled to recover a sum of Rs.1,500/- per month from the date of the suit till the date the possession of the subject property is handed over. Further more, the appellants have been directed to pay rental arrears of Rs.21,500/- to the respondent.
2. The appellants being aggrieved by the trial Court’s judgment, have preferred the first appeal in R.A.No.25/2019 on the file of the Prl. Senior Civil Judge & CJM., Chikkamagalur (for short, ‘the appellate Court’). The appellate Court by its judgment dated 22.08.2019 has dismissed the appeal confirming the trial Court’s judgment. As such, the appellants are in this second appeal.
3. Undisputedly, the respondent, as the owner of the subject property, has inducted the first appellant in possession of the subject property as a tenant under her in performance of the agreement dated 03.03.2015. Further, it is undisputed that the first appellant took possession of the subject property as a tenant under the respondent agreeing to pay a monthly rent at the rate of Rs.1,500/- per month. The appellants have instituted suit in O.S.No.344/2016 for permanent injunction against the respondent asserting that they should not be dispossessed of the subject property otherwise than in the manner known to law because the first appellant is inducted in possession of the subject property as the tenant. Thereafter, the respondent has caused Legal Notice dated 05.11.2016 terminating the lease and calling upon the appellants to quit and hand over vacant possession of the subject property. The appellants have caused reply to this legal notice vide the reply notice dated 19.11.2016 admitting the tenancy.
4. It is after this exchange of notices that the respondent has initiated the suit for eviction of the appellants. The appellants, who could not have disputed the jural relationship in view of the their pleadings in the earlier suit in O.S.No.344/2016 and their Notice dated 19.11.2016, have contested the suit asserting that the subject property was allotted to the respondent under “Ashraya Scheme”. The respondent who owned different immovable properties had obtained the allotment of the subject property suppressing the material facts. The appellants could not be evicted because, the second appellant had submitted an application with the competent authority for allotment of the subject property to her under appropriate scheme in accordance with law.
5. The respondent examined herself in support of the plaint assertions, and the first appellant examined himself as DW3. Additionally, the appellants also examined P.D.Os of Alduru and Sattihalli as DW1 and DW2. The trial Court on appreciation of the evidence on record has concluded that the appellants are in arrears of rent for a period of over eight years. The appellants’ version that the panchayath officers had directed the appellants not to pay the rents because the respondent had violated the terms on which the subject property was allotted to her would not hold water. Further, the trial Court has opined that when the jural relationship between the respondent and the appellants is undisputed and the respondent has established termination of tenancy vide the legal notice dated 05.11.2016, the respondent has complied with the requirements as prescribed under Section 106 of the Transfer of Property Act,1882 and as such, the appellants are entitled for decree as granted.
6. The appellants, in support of the first appeal, have reiterated their assertion as regards the allotment of the subject property to the respondent under the “Ashraya Scheme” though she is not entitled to, and also their submission as regards the application submitted by the second appellant for the allotment of the subject property. However, the appellate Court has dismissed the appeal endorsing the reasons assigned by the trial Court. The appellate Court has specifically concluded that the first appellant, who is admittedly a tenant under the respondent, is estopped from denying the respondent’s title to the subject property.
7. The Courts below on appreciation of the evidence on record, and the admitted facts and circumstances, have concurrently found that the appellants cannot dispute the respondent’s title to the subject property, the appellants are in arrears of rent and the tenancy in favour of the appellants is determined as contemplated under Section 106 of the Transfer of Property Act, 1882. The learned counsel for the appellants is unable to demonstrate that the finding by the Courts below are contrary to the evidence or settled principles of law. As such, no substantial question of law is made out to justify interference with the judgments of the Courts below. However, in view of the pendency of the appeal proceedings before this Court and the appellate Court, this Court is of the considered view that the appellants should be permitted three months from today to quit and hand over vacant possession of the subject property to the respondent in compliance with the judgments by the Courts below. Therefore, the appeal is disposed off directing the appellants to quit and hand over vacant possession of the subject property, in compliance with the impugned judgment of the trial Court, within a period of three months from today.
Sd/- Judge KPS