IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER 2017 BEFORE THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA R.S.A. NO.291/2017 BETWEEN:
1.SMT.KAMALAKSHI W/O.LATE RADHAKRISHNA AGED ABOUT 64 YEARS 2.SRI.HARISH S/O.LATE RADHAKRISHNA AGED ABOUT 42 YEARS 3.SRI.ADHESH S/O. LATE RADHAKRISHNA AGED ABOUT 40 YEARS 4.SRI.VINESH S/O. LATE RADHAKRISHNA AGED ABOUT 38 YEARS 5.SMT.SANDHYA D/O. LATE RADHAKRISHNA AGED ABOUT 36 YEARS ALL ARE RESIDING AT 24-02-143 NEAR VAIDYANATHA DWARA NANDI GUDDA ROAD ATTAVARA, MANGALURU D.K. DISTRICT-575 001.
… APPELLANTS (BY SRI.S.RAJASHEKAR, ADV.) AND:
1.SRI.DINESH KUMAR S/O.BABU KOTTARI AGED ABOUT 58 YEARS RESIDING AT BREJESHA APARTMENT, ATTAVAR MANGALURU, D.K.-575 001.
2.SRI.DINESH S/O. LATE RADHAKRISHNA AGED ABOUT 44 YEARS RESIDING AT 24-02-143 NEAR VAIDYANATHA DWARA NANDI GUDDA ROAD, ATTAVARA MANGALURU, D.K.-575 001.
…RESPONDENTS (SRI.P.P.HEGDE, ADV FOR C/RESPT) THIS RSA IS FILED UNDER SEC.100 OF THE CPC., AGAINST THE JUDGMENT AND DECREE DATED 01-10-2016 PASSED IN R.A.NO.206/2015 ON THE FILE OF THE 2ND ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU, D.K., IN ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 10-08-2015 PASSED IN O.S.NO.254/2006 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, MANGALURU.
THIS RSA IS COMING ON FOR ADMISSION THIS DAY, THE MADE THE FOLLOWING:
JUDGMENT The defendants in O.S.No.254/2006 have preferred this appeal assailing judgment and decree dated 01-10-2016 passed in R.A.No.206/2015 by the II Additional Senior Civil Judge, Mangaluru, D.K.
2. For the sake of convenience, the parties shall be referred to in terms of their status before the trial Court.
3. The first respondent-plaintiff filed suits against the appellants herein as also against other persons which are numbered as O.S.No.254/2006, O.S.No.257/2006 and O.S.No.260/2006 seeking eviction of the defendants from the suit schedule premises and for mesne profits from 25-03-2006 to 09-04-2006 at the rate of Rs.100/- per day and future mesne profits at the rate of Rs.100/- per day from 10-04-2006 till the date of handing over vacant possession of the schedule premises. All the suits were clubbed together and common evidence was let in and were disposed of by common judgment dated 10-08-2015 by the Court of Principal Civil Judge and JMFC, at Mangaluru, D.K.
4. According to the plaintiff, he is the absolute owner of the suit schedule property. Originally, the suit schedule premises along with other properties belonged to one Smt.Leelavathi. She had acquired right, title and interest over the schedule premises along with other properties under a partition deed dated 24-04-1967 which was registered as document No.102/1967-68. Since then, Smt.Leelavathi was in actual possession and enjoyment of the said properties as an absolute owner. She died on 01-03-1973 intestate and issueless leaving behind the legal heirs of her sister, Nagamma as the only successors to her properties. The plaintiff purchased the suit schedule properties along with other properties under a registered sale deed dated 28-12-2005 which was registered as document No.5318/2005-06 followed by the rectification deed dated 22-02-2006 registered as document No.6609/2005-06 from then. That since then the plaintiff has been the absolute owner of the premises along with other properties. It is the further case of the plaintiff that the defendants are in permissive occupation of the suit schedule premises from the days of Smt.Leelavathi. After the death of the original owner, defendants continued to be in occupation of the said premises under the permission of children of Smt.Nagamma, plaintiff’s vendors. As the plaintiff was not interested in continuing the defendants in possession and occupation of the said properties, he requested the defendants to quit and surrender the suit schedule premises. The defendants initially agreed, but later tried to avoid the plaintiff. Plaintiff hence terminated the permission given to the defendants by issuing legal notice dated 02-03-2006. The said notice was duly served on the defendants. But the defendants failed to comply with the demand made in the legal notice. On the other hand, they issued a false and frivolous reply to the plaintiff. According to the plaintiff, the defendants have no right to continue in the schedule premises. The schedule premises is situated at a prime locality of Mangaluru City i.e. Attavar. Therefore, defendants are liable to pay mesne profits 5. In response to the court notice, defendants appeared through their counsel and filed their written statement denying the averments made in the plaint and contended that the defendants are not permissive occupants of the schedule premises as alleged by the plaintiff; that they are the owners of the schedule premises; that the plaintiff cannot seek possession of the schedule premises by filing a suit and that the suit is not filed in accordance with law and appropriate court fee has not been paid. They further contended that the plaintiff has sought possession of four houses in one suit. The further case of the defendants is that there was a partition deed dated 24-09-1974 registered as document No.759/1974-75 under TS No.185/2 of Attavara village. Under the said partition executed between Mr.Govindan, Mr.Narayani, Mr.Narayana Maistry and Vasu Nalini, Narayana Maistry was allotted 5½ cents which consists of two houses. One house is in occupation and enjoyment of the defendant in O.S.No.254/2006 and the other house is in possession and enjoyment of his brother Radhakrishnan. In both the houses, defendant in O.S.NO.254/2006 and his brother are residing with their respective families. The house situated in the said extent of land was constructed by the grandfather of the defendant in O.S.No.254/2006 namely Kelu Maistry. Further, 5.25 cents of land has been allotted to the defendants in O.S.No.260/2006. There are three houses in the said extent of land. One of the houses is in possession and enjoyment of Narayani and the other in the possession and enjoyment of Sathyabhama. Both the houses have collapsed and are vacant and unfit for human occupation and that the court has no jurisdiction to try the suits. The defendants sought for dismissal of the suits for its consideration.
6. On the basis of rival pleadings, the trial Court framed the following issues for its consideration:-
(1) Whether the plaintiff proves that he is the absolution owner of the suit schedule properties?
(2) Whether the plaintiff proves that the defendant is in permissive occupation of suit schedule premises and as such permission is terminated by issuing notice dated 02-03-2006 as alleged in the plaint?
(3) Whether the suit of the plaintiff is properly valued for the purpose of payment of Court fee and pecuniary jurisdiction?
(4) Whether the plaintiff is entitled for the mesne profits from 25-03-2006? If yes, at what rate from which date?
(5) Whether the plaintiff is entitled for the possession of the scheduled premises as prayed in the suit?
(6) Whether the plaintiff is entitled for vacant possession of suit scheduled premises as prayed for in the plaint?
(7) What order or decree?
7. On 06-01-2011, the trial Court has reframed the above said issues as under:
(1) Whether the plaintiff proves that he is the absolute owner of the suit schedule properties?
(2) Whether the plaintiff further proves that the defendant is in permissive occupation of the schedule premises and as such permission is terminated by issuing notice dated 02-03-2006 as alleged in the plaint?
(3) Whether the suit of the plaintiff is properly valued for the purpose of payment of court fee and pecuniary jurisdiction?
(4) Whether the plaintiff is entitled for the mesne profits from 25-03-2006? If yes, at what rate from which date?
(5) Whether the plaintiff is entitled for the possession of the schedule premises as prayed in the suit?
(6) What order or decree?
8. In support of his case, the plaintiff examined himself as P.W.1 and the Power of Attorney holder who sold the suit properties to him was examined as P.W.2. He produced as many as 31 documents which were marked as Ex.P1 to Ex.P31. Significantly the defendants in all the three suits did not lead any evidence.
9. On the basis of evidence on record, the trial Court answered issue No.1 in the negative, issue No.2 as “does not arises for consideration”, issue No.3 as “already answered”, and issue Nos.4 and 5 in the negative. The trial Court consequently dismissed the suits by its judgment dated 10-08-2015. Being aggrieved by the dismissal of the suit in O.S.No.254/2006, the plaintiff preferred R.A.No.206/2015 before the First Appellate Court. The First Appellate Court on hearing the learned counsel for the respective parties framed the following points for its consideration:
(1) Whether the plaintiff is entitled for the reliefs as prayed in the plaint?
(2) Whether the appellant proves that the impugned judgment and decree passed by the trial judge is illegal, perverse and contrary to the provisions of law as well as on facts of the case, therefore, interference of this court is necessary to set aside the impugned judgment and decree passed in O.S. No.254/2006 dated 10-08-2015 by the Principal Civil Judge & J.M.F.C., Mangalore? If so, to what extent?
(3) What Order?
10. By answering Point No.1 partly in the affirmative and point No.2 in the affirmative, the First Appellate Court set aside the judgment and decree of the trial Court and decreed the suit by directing the defendants in the suit to vacate and handover the vacant possession of the plaint schedule properties, within two months from the date of passing of the judgment and decree. A further direction was also issued regarding mesne profits. Being aggrieved by the judgment and decree of the First Appellate Court, the defendants have preferred this second appeal.
11. I have heard learned counsel for the appellants and learned counsel for the Caveator-Respondent No.1 and perused the material on record.
12. Learned counsel for the appellants contended that the First Appellate Court was not right in setting aside the judgment and decree of the trial Court thereby decreeing the suit. He contended that the suit schedule premises belonged to the defendants and that the same has been the subject matter of partition dated 24-09-1974. The plaintiff is not at all the owner of the suit properties therefore he had no right to file the suit seeking eviction of the defendants from the suit premises. He contended that the trial Court rightly appreciating the case of the defendants had dismissed the suit filed by the plaintiff, but the First Appellate Court has reversed the said judgment and has erroneously decreed the suit. He further submitted that the First Appellate Court ought to have appreciated the reasoning of the trial Court in its proper perspective and dismissed the suit. Not having done so, this appeal would give rise to substantial questions of law and therefore, the appeal may be admitted for a detailed hearing.
13. Per contra, learned counsel appearing for the Respondent-Caveator supported the judgment and decree of the First Appellate Court and contended that the defendants did not lead any evidence to prove that they are the original owners of the schedule premises. The trial Court ought to have placed reliance on Ex.P19, Ex.P20 and Ex.P21 to conclude that the plaintiff was the owner and that he had right to evict the defendants from the schedule premises. He submitted that no substantial question of law would arise in this appeal and therefore, the appeal may be dismissed in limine.
14. Having heard the learned counsel for the parties and on perusal of the material on record, it is noted that on finding, the trial Court had dismissed the suit against which, an appeal was preferred. The First Appellate Court framed points for its consideration, with regard to the plaintiff being entitled to the relief sought.
15. While considering the said point, the First Appellate Court has examined Ex.P19 which is the certified copy of the partition deed dated 24-04-1967. On the basis of the said partition deed, Smt.Leelavathi, daughter of one Muthappa had acquired the right, title and interest over the suit schedule premises. On her demise and she having no issues, her younger sister and her children succeeded the said properties. Her sister’s children had executed a General Power of Attorney in favour of P.W.2, Ramesh Devadiga o n the basis of which, he alienated the suit property to the respondent-plaintiff as per Ex.P20. The respondent-
plaintiff therefore, established his title to the suit property, by virtue of Ex.P19 being the registered partition deed, Ex.P20 being the certified copy of the Sale Deed and Ex.P21 being the copy of rectification deed. The First Appellate Court on the basis of the said documents and in the absence of there being any contra evidence let in by the defendants came to the conclusion that the trial Court was not right in holding that the plaintiff had not proved his right, title and interest in the suit property and thereby dismissing the suit. The First Appellate Court has assigned reasons to the effect that the respondent-plaintiff having established his title to the suit premises on the basis of title deeds was entitled to seek reliefs as against the defendants in the suit, particularly in the absence of there being any contra evidence let in by the defendants. On that basis, the First Appellate Court has concluded that the respondent-plaintiff being the owner of the suit premises as entitled to seek eviction of the defendants from the said premises.
16. As far as the case of the defendants is concerned, they have contended that they are the owners in possession of the suit premises, but in the absence of any evidence let in to substantiate that contention, it cannot be held that they are the owners of the suit premises, particularly in the face of oral and documentary evidence let in by the respondent-plaintiff. As far as numbers allotted to the house properties are concerned, the trial Court has held that they are not tallying with the numbers entered in the Municipal records. But what is necessary to note is that right, title and interest of the plaintiff insofar as the land wherein the schedule premises are situated, the plaintiff has proved the same, any mis-description with regard to the number given to the building standing on the said land, in the municipal records cannot be a reason to non-suit the plaintiff. The First Appellate Court has rightly re-appreciated the case of the respondent- plaintiff and has granted relief to the plaintiff. I do not find any infirmity in the judgment of the Court below which has set aside the judgment of the trial Court and has decreed the suit. There is no substantial question of law which would arise in this appeal. Hence the appeal is dismissed.
17. At this stage, learned counsel for the appellants submits that some time may be granted to vacate and handover the vacant possession of the suit schedule premises. The said submission is objected to by the learned counsel for the Caveator. However, it is noted that the First Appellate had granted two months time from the date of the said judgment and thereafter, this Court had granted stay of the judgment. In the interest of justice, time is granted to till 31-12-2017 for the appellants to quit and hand over the vacant possession of the suit schedule premises to the respondent- plaintiff. It is needless to observe that the said time has been granted on the request made on behalf of the appellants and therefore, the appellants should vacate the said premises on or before 31-12-2017, without driving the respondent-plaintiff to file an execution petition.
Parties to bear their respective costs.
In view of dismissal of the appeal, I.A.No.2/2017 also stands dismissed.
Sd/- JUDGE mpk/-*