IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JUNE 2017 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA R.S.A.No.1901/2008 (INJ) BETWEEN:
1. MARY D’ SILVA, W/O LATE JOHN EMANUEL D’ SILVA AGED ABOUT 75 YEARS, R/AT D.NO.1-124(2), AMTADY, BANTWAL TALUK, D.K – 574 211.
SINCE DECEASED ON 18.08.2009 LEAVING BEHIND APPELLANT NO.2 AS HER SOLE LEGAL REPRESENTATIVE VIDE ORDER DATED 09.12.2016 2. VICTOR MICHEAL D’ SILVA S/O LATE JOHAN EMANUEL D’ SILVA AGED ABOUT 54 YEARS SURVANA COMPOUND, GORIGUDDA, VALENCIA MANGALORE – 575 002 (D.K) …APPELLANTS (BY SRI G.BALAKRISHNA SHASTRY, ADVOCATE) AND :
FREDRICK D’ SILVA S/O LATE MATHAIS D’ SILVA AGED ABOUT 51 YEARS, GUTHU HOUSE, LORETTO AMTADY VILLAGE, BANTWAL TALUK, DAKSHINA KANNADA – 574 211.
SINCE DECEASED ON 10.08.2010 LEAVING BEHIND HIS SOLE LEGAL REPRESENTATIVE RESPONDENT No.1(A) 1(a) CELINE D’ SOUZA, (AMENDED VIDE W/O FREDRICK D’ SILVA COURT ORDER MAJOR, DATED 25.07.2016) NEAR AMTADY PANCHAYAT OFFICE, LORETO POST, BANTWAL TALUK, D.K DISTRICT– 574 211.
…RESPONDENT (BY SRI S.SHEKAR SHETTY, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE, AGAINST THE JUDGEMENT AND DECREE DATED 16.04.2008 PASSED IN R.A.No.4/2000 (RENUMBERED AS R.A.No.54/2007) ON THE FILE OF THE CIVIL JUDGE (SR.DN), AND JMFC., BANTWALA, DAKSHINA KANNADA, DISMISSING THE APPEAL AND UPHOLDING THE JUDGMENT AND DECREE DATED 24.11.1999 PASSED IN O.S.No.71/1987 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN), BANTWALA, DAKSHINA KANNADA.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Defendant Nos.1 and 2 in O.S. No.71/1987 on the file of Prl. Civil Judge (Jr. Dn.), Bantwal, Dakshina Kannada, have come up in this second appeal impugning the concurrent finding of both the Courts below in decreeing the suit of the plaintiff with costs while rejecting the prayer with reference to mesne profits made in column VI(c) in the plaint.
2. The brief facts leading to this second appeal are as under:
2.1 The plaintiff filed the suit stating that he was cultivating the lands, which were granted to him by the Land Tribunal, Bantwal, vide order bearing TMC No.1302/78-79 dated 03.03.1981 and his elder brother i.e., original defendant was cultivating more than 04 Acres of land under one Gracy Albuquerque and Thomas Culauso. The defendant filed declaration under Section 48A of the Karnataka Land Reforms Act, pursuant to which certain properties were granted to him by the Land Tribunal. According to the plaintiff, defendant was residing in his house bearing D.No.2-86(i) situated in his tenancy property at Amtady village till 1980 and sometime in 1980, the said house collapsed and the defendant requested him to accommodate him in his house and accordingly, he permitted the defendant to stay in the southern room of his house. The said room occupied by the defendant was subsequently numbered as 1-124(2) and the portion of the house retained by the plaintiff was numbered as 1-124(1). In spite of his repeated requests, the defendant refused to vacate the suit ‘A’ schedule property (hereinafter referred to as ‘the suit property’), which is described as the building consisting of the southern room of plaintiff’s house No.1- 124(1) of Amtady village i.e., house No.1-124(2) in occupation of the defendant. On the contrary, the defendant got issued legal notice dated 29.05.1986 to which, the plaintiff sent reply though his lawyer on 23.06.1986. Hence, he was constrained to file the suit for the reliefs of recovery of possession of the suit property from the defendant, costs and mesne profits.
2.2. On service of suit summons, the defendant entered appearance and filed written statement denying the averments made in the plaint. However, he has admitted relationship with the plaintiff and the fact that he was a tenant in respect of 04 Acres of land under Gracy Albuquerque only. He has denied the title of the plaintiff in respect of the house No.1-124(1). He has taken the defence that Sy. No.95/16 measuring 29 cents and Sy. No.95/17A measuring 20 cents of Amtady village belongs to Sri Alphonsus D’ Silva, he has executed General Power of Attorney (GPA) in favour of V.M. D’Silva to administer and dispose of the said properties. The said GPA holder has entered into an agreement with the defendant to sell the aforesaid lands and in that regard, he has already paid Rs.21,500/- to Alphonsus D’ Silva. The defendant is stated to be in possession and enjoyment of door No.1-124(1) prior to the agreement since 1979 and he had let out a portion of house bearing door No.1-124(1) to the plaintiff on a monthly rent of Rs.25/-. The defendant has made reference to the earlier suit in O.S. No.242/1986 filed by the plaintiff against him for the relief of injunction and contended that the suit in O.S. No.71/1987 was barred under Order II Rule 2 of the Civil Procedure Code and sought for dismissal of the same with costs.
2.3 During the pendency of the suit, defendant died and his legal representatives i.e., his wife and son were brought on record. Defendant No.2, who is the son of the original defendant, filed additional written statement taking similar defence as taken by his father. According to him, a portion of house No.1-124(1) was let out to the plaintiff temporarily by his father – original defendant. Plaintiff has managed to arrange two door numbers for the single house belonging to defendants. Defendant No.3 adopted the written statement filed by defendant No.2 by filing a memo in that regard.
2.4 The trial Court clubbed both the suits filed by the plaintiff i.e., O.S. No.242/1986 for the relief of permanent injunction and O.S. No.71/1987 for reliefs of delivery of possession, costs and mesne profits, against the defendant. It has framed the following issues and additional issue in O.S. No.71/1987:
“ 1. Whether plaintiff proves that he is owner of suit house had allowed the defendant to reside in it out of love and affection ?
2. Whether plaintiff proves that he is entitled to get vacant possession of the same ?
3. Whether suit is barred under Order 2 Rule 2 of C.P.C., as alleged by defendant ?
4. Whether suit is properly valued and proper court fee is paid ?
5. What relief the plaintiff is entitled?
6. What order and decree ?” Additional issue No.6(a) “Whether the defendants prove that they are the owner of the suit house bearing door Number 1-124 and the southern portion of the same was given to the plaintiff on a rental of Rs.25/- per month?”
Both parties adduced evidence common to both suits. The plaintiff got examined himself as PW.1 and got marked documents Exs.P1 to P20. On behalf of defendants, defendant No.2 got examined himself as DW.1 and he examined two witnesses as DWs.2 and 3 and got marked Exs.D1 to D27.
2.5 Since the cause of action stated in the suit in O.S. No.242/1986 was different from the one stated in O.S. No.71/1987, the trial Court held that there was no bar to file the subsequent suit and court fee paid was proper in both the suits. The trial Court on appreciation of the pleadings and evidence adduced by the parties, has answered issue Nos.1 and 2 in the affirmative, issue No.3 in the negative, issue No.4 in the affirmative, additional issue No.6(a) in the negative and issue Nos.5 and 6 as per the final order and accordingly, by common judgment dated 24.11.1999, decreed both the suits with costs. However, the prayer column VI(c) of the plaint in O.S. No.71/1987 with reference to mesne profits was rejected.
Defendants were directed to quit and deliver the southern room of the plaintiff’s house bearing D. No.1-124(1) of Amtady village within one month from the date of the said order. Being aggrieved by the judgment and decree passed in O.S. No.71/1987, legal heirs of the original defendant preferred appeal, which was initially numbered as R.A. No.4/2000 and later re-numbered as 54/2007 before the learned Civil Judge (Sr. Dn.) and JMFC., Bantwal, Dakshina Kannada.
2.6 The first appellate Court after considering the material on record, framed the following points for consideration:
“1. Whether the trial court has framed correct issues and findings and reason given thereto are harmonious to each other ?
2. Whether the appellants makes out the grounds of appeal as set out in the appeal memo?
3. Whether the judgment and decree passed by the trial Court is illegal requiring my interference to be set aside ?
4. What order ?”
The first appellate Court on re-appreciation of the pleadings and evidence available on record, has answered point No.1 in the affirmative, point Nos.2 and 3 in the negative and point No.4 as per the final order and accordingly, by judgment and decree dated 16.04.2008, dismissed the appeal with costs by upholding the judgment and decree passed by the trial Court. As against the concurrent finding of fact arrived at by both the Courts below, defendant Nos.1 and 2 in the suit have filed this second appeal.
3. During the pendency of this appeal, the respondent died and his sole legal representative was brought on record vide order dated 25.07.2016. Appellant No.1 also died and appellant No.2 was treated as her sole legal representative vide order dated 09.12.2016.
4. Heard the learned counsel for the appellant and learned counsel for the respondent. Perused the records of both the Courts below. The original plaintiff and original defendant were full brothers i.e., they are the sons of late Mathais D’Silva. The relationship between the parties is not in dispute. It is also not in dispute that the father of plaintiff and defendant was an agriculturist and he was in cultivation of several properties during his life time. The records reveal that the plaintiff was tenant under one Thomas Coluse and after coming into force of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as ‘the Act’), he filed declaration under Section 48A of the Act before the Land Tribunal for grant of occupancy rights in respect of tenanted lands in his cultivation. The Land Tribunal issued notice to the owner of the land – Mr.Thomas Coluse and others. However, the owner did not appear before the Tribunal. The Land Tribunal considering the case of the plaintiff and survey report, granted occupancy rights in respect of seven items of lands including lands in Sy. No.95/16 and 95/17A12 measuring 29 cents and 07 cents respectively, in favour of the plaintiff. According to the plaintiff, the house property bearing No.1-124(1) is situated in the aforesaid lands, more particularly Sy. No.95/17A12 measuring 7 cents. A perusal of Ex.D27-extract of record of rights reveals that the said land is a smaller extent of land in Sy.No.951/17A1 measuring 01 Acre 33 guntas. The said order of the Land Tribunal dated 03.03.1981 is produced before the trial Court as per Ex.P4. It has come on record that neither the original defendant nor Alphonsus D’Silva, who is examined as DW.3, has challenged the said order of the Land Tribunal, which has become final.
5. It is seen that the trial Court was also guided by the statement given by Mrs.Piyad D’Silva, who is admittedly the sister of Alphonsus D’Silva and wife of Lawrence Rodrigues, before the Land Tribunal. The said statement is marked as Ex.P14 before the trial Court. Her statement is to the effect that she had filed declaration in respect of lands bearing Sy. Nos.95-27, 95-30, 95-31B, 94-12, 95-17A and in that connection, she was given notice at the time of survey of lands in respect of TMC No.2551/76-77. She had permitted her brother – Fredrick D’Silva (original plaintiff) to cultivate the said lands and since he had by then filed separate declaration, she had no objection for granting the occupancy rights of the said lands in his favour. It has come on record that Mrs.Piyad D’Silva has subsequently withdrawn her declaration. Defendant No.2 – Victor Micheal D’Silva, who is the son of the defendant, has put his signature as an attesting witness to the said declaration - Ex.P14.
6. Pursuant to the order of the Land Tribunal, Form No.10 - Registration certificate with reference to the aforesaid lands is issued by the Special Tahasildar in favour of the plaintiff on 13.12.1981 vide Ex.P5. Subsequently, the name of the plaintiff has been mutated in the revenue records. The trial Court relying upon Exs.P6 to P12 has held that the plaintiff was in possession and enjoyment of the aforesaid lands as on the date of filing of the suit.
7. The plaintiff in support of his plea that the defendant along with his family was residing in his property bearing No.2-86(1) situate in Amtady village till 1980, had produced the ration card standing in the name of the defendant and the same was issued on 06.06.1977. The said ration card is marked as Ex.P15. He also got marked reply sent through his Advocate dated 23.06.1986 vide Ex.P2 to the legal notice issued by the defendant dated 29.05.1986. The plaintiff in his reply letter as well as evidence has denied that he was tenant in house No.1-124(1) as contended by the defendant.
8. It was contended on behalf of the defendants that the land in Sy. No.95/16 measuring 29 cents was purchased by Alphonsus D’Silva from one Pascal Gregory Cajtian Lobo under registered sale deed dated 11.04.1959 as per Ex.D14 and in respect of the land in Sy. No.95/17A measuring to an extent of 13 cents, Alphonsus D’Silva had acquired mulgeni rights from Pascal Silva under agreement dated 13.04.1959 vide Ex.D13. It was also contended by them that in Form No.7 filed by the original plaintiff on 27.06.1979 vide Ex.D18, there is a note made that the lands were cultivated from the time of forefathers and hence, the original defendant being the elder brother of the original plaintiff was co-tenant of the said properties and he was also entitled to a share in the said properties. The trial Court relying upon the evidence adduced by the parties has negatived the aforesaid contentions holding that the said lands were cultivated by the plaintiff as tenant separately without the help of joint family as on the date of coming into force of the Karnataka Land Reforms Act and based on his declaration under Section 48A of the Act, the Land Tribunal has granted occupancy rights in respect of the said lands. Defendants have not produced any cogent documentary evidence to prove that the said lands were in possession and enjoyment of either Alphonsus D’Silva or the original defendant, who was admittedly granted occupancy rights in respect of another land measuring 04 Acres by the Land Tribunal.
9. Besides all this, the records would also indicate that the original defendant was suffering from paralysis since 1975 and till the date of his death, he was not in a position either to cultivate the said lands or enter into agreement of sale for purchase of any property much less the properties stated in Ex.D3 – agreement of sale. The said fact is admitted by defendant No.2 - DW.1 in his evidence. Similarly, Alphonsus D’Silva – DW.3 has admitted in his evidence that he was serving in Army and was posted to work at Rajasthan and he was not personally cultivating the said lands.
10. The evidence on record would clearly indicate that the agreement of sale - Ex.D3 has come into existence subsequent to the order of the Land Tribunal dated 03.03.1981 and it has been created with a view to take away the right and ownership of the original plaintiff – Fredrick D’ Silva in respect of properties bearing Nos.95/16 and 95/17A under the guise of the original defendant purchasing the same from its alleged owner Alphonsus D’ Silva, who is represented by his power of attorney holder - defendant No.2, who is none other than the son of the original defendant. Admittedly, as on the date when the agreement of sale – Ex.D3 was entered i.e., 21.10.1981, Alphansus D’ Silva had lost his alleged ownership over the said lands by virtue of the order of the Land Tribunal dated 03.03.1981 granting occupancy rights in favour of the original plaintiff. Therefore, any right or semblance of any right as contended by the defendants could not have passed on from Alphonsus D’ Silva to the original defendant through his power of attorney holder since the said lands vested with the original plaintiff by virtue of the order of the Land Tribunal referred to supra.
11. The trial Court after elaborately discussing the issues in the background of pleadings and evidence available on record, has rightly come to the conclusion that the plaintiff is the absolute owner of house property bearing No.1-124(1), which includes suit property bearing No.1-124(2) situate in Amtady village and that the plaintiff had permitted his elder brother, namely original defendant to stay in the suit property bearing No.1-124(2) since his old house bearing No.2-86(1) in the very same village had collapsed in the year 1980. Hence, the plaintiff was entitled to seek the relief of eviction against his elder brother - John Emanuel D’ Silva and accordingly, directed the defendants to quit and deliver vacant possession of the suit property to the plaintiff. The said judgment is rightly upheld by the first appellate Court.
12. Therefore, the concurrent finding of both the Courts below in recognizing the right, title and interest of the original plaintiff - Fredrick D’ Silva, who died leaving him surviving his wife, the respondent herein, over the house property bearing No.1-124(1) including suit property bearing No.1-124(2) situate in Amtady village and consequently, directing the legal representatives of the original defendant to quit and deliver vacant possession of the suit property to the plaintiff appears to be just and proper and does not call for interference in this appeal inasmuch as against the concurrent finding arrived at by both the Courts below, no substantial question of law arises for consideration in this appeal.
13. Accordingly, this second appeal is dismissed and the judgments and decrees passed by both the Courts below are hereby confirmed.
Sd/- JUDGE sma