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. 305 OF 2016 Between:
SRI B. YOGESH SON OF BASAVARAJU AGED ABOUT 38 YEARS RESIDING AT MARUTHI NAGARA BHADRAVATHI TALUK – 577 301 (BY SRI K.S.ABHIJITH, ADVOCATE FOR SRI B.L.SANJEEV, ADVOCATE) And:
SRI. RANGAPPA SON OF LATE BETTEGOWDA AGED ABOUT 70 YEARS CONTRACTOR RESIDING AT RAJAPPA LAYOUT JENNAPURA BHADARAVATHI TALUK – 577 301 ... APPELLANT ... RESPONDENT THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 16.10.2015 PASSED IN R.A.No.28/2008 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND JMFC., BHADRAVATHI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 25.02.2008 PASSED IN O.S.No.241/2005 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE (JR. DN.) AND JMFC., BHADRAVATHI.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is filed by the plaintiff in O.S.No.241/2005 on the file of II Additional City Civil Judge (Jr. Dn.) & JMFC., Bhadravathi. The appellant has filed the suit in O.S.No.241/2005 for recovery for a sum of Rs.27,550/- along with interest at the rate of 18% p.a on a sum of Rs.20,000/- from the date of suit till the date of realization. The appellant’s case is that he entered into an agreement with the respondent to take on lease a shop premises in the property bearing Municipal Khata No.164, assessment No.15 in Khodihalli Extension of Old Town, Bhadravathi. He has paid a sum of Rs.20,000/- as advance to the respondent. The respondent has not put him in possession of the aforesaid property, and therefore, the appellant is entitled to recover a sum of Rs.27,550/- along with interest as aforesaid.
2. The trial Court by its impugned judgment dated 25.02.2008 dismissed the suit holding that the appellant had initially entered into agreement dated 10.09.2002 with the respondent to take possession of a shop measuring 16 feet x 15 feet and later entered into an other agreement dated 30.09.2003 with the respondent to take an additional area measuring 16 feet x 30 feet. The extent mentioned in the agreement dated 30.9.2003 was inclusive of the extent mentioned in the first agreement dated 10.9.2002. The appellant’s case that the respondent had not put him in possession of shop measuring 16 feet x 30 feet cannot be believed because the appellant had not mentioned about the first agreement dated 10.09.2002. The trial Court has also concluded that it is difficult to accept that the appellant, a practicing advocate, would have kept quite for over one year i.e., till 16.10.2004 when he issued legal notice if he was not put in possession of the total extent of 16 feet x 30 feet. The trial Court, on further appreciation of the evidence on record, has concluded that the appellant is in possession of the shop premises totally measuring 16 feet x 30 feet and as such, the appellant is not entitled for a decree to recover the amount claimed.
3. The appellant being aggrieved by the trial Court’s judgment dated 25.02.2008, filed the first appeal in R.A.No.28/2008 on the file of the Principal Senior Civil Judge & JMFC., at Bhadravathi. The appellate Court on re-appreciation of the evidence has concurred with the trial Court’s conclusion that initially, the appellant was put in possession of shop premises measuring 16 feet x 15 feet and was later put in possession of another shop measuring 16 feet x 15 feet. The area mentioned in the second agreement dated 30.09.2003 viz., 16 feet x 30 feet includes the original shop measuring 16 feet x 15 feet. The appellate has not established that when he entered into the second agreement dated 30.09.2003, he delivered possession of the original shop measuring 16 feet x 15 feet to the respondent. These circumstances, the appellate Court has opined, would suffice to conclude that the respondent has handed over possession of the next shop as per the second agreement.
4. The Courts below on appreciation of the evidence on record have recorded a finding of the fact that the respondent has delivered to the appellant the possession of the shop premises measuring 16 feet x 30 feet and therefore, the appellant would not be entitled for recovery of the amount. The learned counsel for the appellant is not able to point out that the Courts below have either overlooked some material evidence or that the conclusion of the Courts below are based on the evidence which could not have been relied upon. The learned counsel is also not able to establish that the judgments of the Courts below are contrary to any settled proposition of law. As such, no substantial grounds are made out. The appeal is accordingly dismissed.
Sd/- Judge KPS