IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Regular Second Appeal No.1002 of 2018 (res) Between:
SRI ANNI ACHARY SON OF LATE DOMBA ACHARY, AGED ABOUT 61 YEARS, RESIDING AT PALABE HOUSE, BADAGAKARANDUR VILLAGE, BELTHANGADY TALUK, DAKSHINA KANNADA DISTRICT – 574 214 (BY SRI AJITH ANAND SHETTY, ADVOCATE) And:
SRI RATHNAVARMA HEGDE SON OF A.NAGARAJA HEGDE, AGED ABOUT 63 YEARS, RESIDING AT KARAMBAR VILLAGE, BELTHANGADY TALUK, POST KARAMBAR, ALADANGADY, DAKSHINA KANNADA DISTRICT – 574 217 (BY SRI B.S.SACHIN, ADVOCATE) ... APPELLANT ... RESPONDENT THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED:24.10.2017 PASSED IN R.A.NO.137/2008 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC., BELTHANGADY, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 29.08.2002 PASSED IN O.S.NO.76/2001 ON THE FILE OF THE CIVIL JUDGE (JR. DN) AND JMFC., BELTHANGADY D.K.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is filed by the defendant in O.S.No.76/2001 (initially numbered as S.C.No.11/1994) on the file of the Civil Judge (Jr. Dn.) & JMFC., Belthangady taluk, D.K., (for short, the civil Court) calling in question the judgment and decree dated 24.10.2017 in R.A.No.137/2008 on the file of the Prl. Senior Civil Judge & JMFC., Belthangady (for short, the appellate Court).
2. The civil Court dismissed the respondent’s suit in O.S.No.76/2001 for possession of the plaint schedule property viz., residential premises bearing door No.11-70 situated in Sy.No.135(E) of Badagakarandoor village, Belthangady taluk (the subject property). However, the appellate Court has allowed the first appeal in R.A.No.137/2008 filed by the respondent setting aside the civil Court’s judgment and directing the appellant to vacate and hand over the vacant possession of the subject property to the respondent.
3. The respondent filed the suit in O.S.No.76/2001 (old S.C.No.11/1994) for possession of the subject property asserting that the premises in the subject property was constructed by the respondent and that the appellant was put in possession of the subject property as a licensee. He issued legal notice dated 31.12.1993 terminating the license because the appellant did not vacate and hand over possession of the subject property despite repeated requests. The appellant did not respond to the notice and therefore he was constrained to file the suit for possession.
4. The appellant contested the suit while admitting that the respondent is the owner of the land in Sy.No.135(E) measuring 1 acre 14 cents of Badagakarandoor village. The appellant asserted that certain third persons, including Mr. Stephen Elias Pais and Mr. Muni Raja are in possession of certain portions of the land in the said Sy. No.135(E) and he is in possession of the residential premises. The appellant also asserted that he was granted occupancy rights to certain lands in the immediate vicinity of the subject property. The appellant specifically contended that the suit for possession could not be entertained because of the bar under Section 35 of the Karnataka Land Reforms Act, 1961.
5. The civil Court dismissed the suit concluding that the respondent’s case that the appellant is put in possession of the subject property as a licensee is doubtful inter alia for the reason that though the respondent contends that his father was in possession of the premises in the subject property until his death in the year 1974, he states that the appellant was put in possession as a licensee thereafter. However, the respondent has not established the circumstances from which it can be reasonably inferred that he constructed residential premises in the subject property, and that the appellant was put in possession of the subject property as a licensee. Insofar as the provisions of the bar under Section 35 of the Karnataka Land Reforms Act, 19611, the civil Court concluded that no declaration as required is filed, and because such declaration is not filed, the bar would not apply. But the bar under Section 132 of the Karnataka Land Reforms Act, 19612, would come into play and its jurisdiction is excluded.
6. In the first appeal filed by the respondent, the appellate Court has concluded that the appellant, who did not dispute the respondent's ownership and who could not establish tenancy of the subject property of the land in Sy. No.135(E), cannot seek for enforcement of the bar 1 The provisions of Section 35 of the Karnataka Land Reforms Act, 1961 restricts the eviction of a tenant from a dwelling house situated in a village.
2 The provisions of Section 132 of the Karnataka Land Reforms Act, 1961, excludes the civil Court’s jurisdiction to deal with any question for which redressal is provided for under the Act.
under Section 35 of the Karnataka Land Reforms Act, 1961. The appellant even without a plea of tenancy of the subject property is trying to justify his possession of the subject property on the basis of the grant of occupancy rights in his favour for the adjacent lands. The appellate Court has reasoned that the respondent’s title to the subject property being undisputed, the respondent would be entitled to seek recovery of possession unless such right is obstructed by plea of adverse possession which is not pleaded by the appellant or other defense specifically provided in law. The appellate Court has concurred with the finding that the provisions of bar under Section 35 of the Karnataka Land Reforms Act, 1961 could not be invoked because declaration in that regard is not filed neither by the appellant nor by the respondent as required in law.
7. Insofar as the application filed by the appellant under Order XLI Rule 27 of CPC seeking leave to produce copy of the judgment and decree in R.A.No.113/2008 arising out of suit in O.S.No.76/2001 filed by the respondent against one Krishnappa Acharya and another, the appellate Court has opined that the appellant, who in his written statement had specifically pleaded that Mr. Stephen Elias Pais and Mr. Muni Raja were in possession of some portions of the land in Sy. No.135(E) cannot take advantage of such judgment. The appellate Court has referred to the appellant’s cross examination wherein he has admitted that the said Krishnappa Acharya is in possession of certain portions in the land in survey No.135(E). The appellate Court has also opined that the other documents filed would also be of no help to the appellant, and consequentially the application is also rejected observing that the documents sought to be produced as an additional evidence under Order XLI Rule 27 of CPC were not necessary for the decision on the controversy of the proceedings.
8. The learned counsel for the appellant argued that the Courts below have erred in concluding that the bar under Section 35 of the Karnataka Land Reforms Act, 1961 would not apply because a declaration is not filed either by the appellant or by the respondent inasmuch as that is not a requirement of law. Therefore, the appellant is justified in contending that the suit for eviction is not permissible. However, the learned counsel is unable to controvert the rebuttal arguments that the appellant, who denied that he was put in possession of the residential premises/subject property as a licensee, is not able to place any evidence to establish his tenancy other than the undisputed fact that the appellant is granted occupancy rights to the agricultural lands in the vicinity of the subject property. The appellant on the basis of the grant of occupancy rights to adjacent lands cannot claim tenancy over the subject property. Further, the learned counsel does not dispute that the bar under Section 35 of the Karnataka Land Reforms Act, 1961 could apply only if the ingredients therein are satisfied, and the first of such ingredients would be the assertion of tenancy.
9. The appellant, who has not established tenancy, cannot seek for enforcement of the bar under Section 35 of the Karnataka land Reforms Act, 1961 and as such no substantial question arises in the facts and circumstances of the case based on the finding of the Courts below as regards the bar under Section 35 of the Karnataka Land Reforms Act, 1961. The learned Counsel is not able to demonstrate that the finding by the Court below is otherwise opposed to the evidence or is without evidence. Therefore, this Court is of the considered view that no substantial question of law arises and there is no reason for interference in this appeal.
At this stage, the learned counsel for the appellant requests that the appellant may be granted some reasonable time to vacate the premises and hand over possession in compliance of the impugned decree.
The learned counsel for the respondent submits that the appellant may be allowed six months time to vacate and hand over possession.
In the light of this submission, and the fact that the appeal was pending on the file of this Court for about two years, the appellant is directed to vacate and hand over the residential premises in Sy.No.135 (E) of Badagakarandoor village, Belthangady taluk within a period of six months from the date of receipt of a certified copy of this judgment.
The appeal is disposed of accordingly.
Sd/- Judge KPS