IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF AUGUST, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Regular Second Appeal No.151 of 2015 (INJ) Between:
1. SRI H.R.SOMASHEKAR AGED ABOUT 40 YEARS, SON OF LATE RAMASHEETY.
2. SRI H.R. SUBRAMANYA AGED ABOUT 38 YEARS SON OF LATE RAMASHEETY.
3. SRI H.R. SHASHIDHAR AGED ABOUT 34 YEARS, SON OF LATE RAMASHEETY.
4. SRI H.R. RAGHAVENDRA AGED ABOUT 30 YEARS SON OF LATE RAMASHEETY.
APPELLANTS 1 TO 4 ARE RESIDENT OF 2ND CROSS, KUMBARA BEEDI ADLIMANE ROAD HASSAN – 573 201.
... APPELLANTS (BY SRI. A RAVISHANKAR., ADVOCATE) And:
SRI.MOHAN KUMAR AGED ABOUT 54 YEARS SON OF H.T.C. RAMAIAH, RESIDENT OF DODDA GARADI BEEDI, HASSAN – 573 201.
(BY SRI. H. V. RAJARAM., ADVOCATE) ... RESPONDENT THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 07.10.2014 PASSED IN RA NO. 61 OF 2012 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE, JMFC, HASSAN, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 27.07.2012 PASSED IN OS NO. 491 OF 2010 ON THE FILE OF THE III ADDL. CIVIL JUDGE, JMFC, HASSAN.
THIS REGULAR SECOND APPEAL COMING ON FOR FURTHER ARGUMENTS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is filed by the defendants in O.S.No.491/2010 on the file of the III Addl. Civil Judge, Hassan, (for short, ‘Civil Court’). The suit in O.S.No.491/2010 is filed by the respondent – plaintiff for permanent injunction restraining the appellants- defendants from damaging the suit schedule property (for short, ‘subject property’) in any manner until the appellants-defendants are evicted from the subject property in the manner known to law. The suit is decreed by the Civil Court on 27.07.2012. The appeal filed by the appellants-defendants in R.A.No.61/2012 on the file of II Additional Senior Civil Judge and JMFC, Hassan (for short, ‘appellate Court’) is also dismissed. Hence, the appellants - defendants are in this second appeal.
2. The undisputed facts are that Sri.H.T.Venkatappa was the owner of a larger property including the subject property. Sri H.T. Venkatappa transferred the larger property (including the subject property) in favour of Smt. Chamamma w/o. late H.T.C.Ramaiah under the sale deed dated 21.09.1978. The sale of the larger property in favour of Smt.Chamamma was despite a mortgage in favour of Sri Krishna Swaroop and Sri Ramesh Chand vide deed dated 28.06.1975 executed by Sri. H.T.Venakatappa. The mortgagee, Sri Krishna Swaroop filed a suit for specific performance in O.S.No.88/1978 contending inter alia that Smt.Chamamma was not a bona fide purchaser of the larger property. This suit in O.S.No.88/1978 culminated, amongst others, with the finding that Smt.Chamamma was not a bonafide purchaser of the larger property.
3. Further, it is undisputed that after the demise of Smt.Chamamma, her legal heirs initiated eviction proceedings in HRC No.11/1995 under Section 21 of the Karnataka Rent Control Act, 1960. This petition was disposed of by the order dated 14.10.2003 directing the petitioners therein viz., legal representatives of the deceased Smt. Chamamma to approach the Civil Court for decision on the question of title to the subject property. The said legal representatives of Smt. Chamamma filed revision petition in HRCRP No.11/2003 on the file of the Prl. District Judge, Hassan. The revision Court was of the opinion that the petition was rightly disposed of because complicated question of tile could not be gone in a proceeding under the Rent Act.
4. Furthermore, it is undisputed that meanwhile the legal representatives of the original owner – Sri. H.T.Venkatappa filed suit in O.S.No.28/1999 on the file of Additional Civil Judge, Hassan inter alia impugning the sale deed dated 21.09.1978 in favour of Smt.Chamamma. The civil Court, while revisiting the question whether Smt.Chamamma was a bona fide purchaser for value at the instance of legal representatives of the original owner – Sri.H.T. Venkatappa, concluded that the sale in favour of Smt. Chamamma was subject to the mortgage deed and as such, Smt. Chamamma had retained the agreed sale consideration to enable her to secure redemption of the mortgage. Smt. Chamamma was a bona fide purchaser for value. Therefore, the legal representatives of Smt.Chamamma were entitled to obtain redemption of the mortgage, and they had accordingly obtained the redemption under the Release Deed dated 3.2.2003 from the legal representatives of one of the mortgagees, Sri.Ramesh Chand.
4. The plaintiff’s suit for permanent injunction is decreed by the trial Court in the light of the subsequent finding in O.S.No.28/1999 as regards Smt. Chamamma being a bona fide purchaser for value and on the ground that the appellants-defendants, who admitted that their father entered possession of the subject property as a tenant under Sri H.T.Venkatappa and that they had continued as tenant after the demise of their father, would be estopped from questioning the title of the legal representatives of Smt. Chamamma, especially when they did not have any claim for title to the subject property. The appellate Court, while dismissing the appellants- defendants’ appeal has also held that the defendants are debarred from taking advantage of the dismissal of the earlier eviction petition in HRC No.11/1995 with a further declaration that any finding therein would only bind the petitioner therein and would not be binding on the other legal representatives of Smt. Chamamma.
5. The learned counsel for the appellants- defendants submitted that it is undisputed that mortgage deed dated 28.06.1975 was in favour of Sri Krishna Swaroop, and Sri Ramesh Chand, but the release deed for redemption for mortgage deed is executed only by the legal heirs of Sri Ramesh Chand. If the legal representatives of Smt.Chamamma have not obtained redemption of mortgage from both the mortgagees, they cannot assert title to the subject property. As such, the legal representatives of Smt.Chamamma can neither claim absolute ownership to the subject property nor seek eviction of the appellants- defendants..
6. However, this contention, even if acceptable, cannot inure to the advantage of the appellants-defendants. The Trial Court is justified in placing reliance upon Section 116 of the Evidence Act, 1872 in the light of the admitted facts and the circumstances of the case. It is indisputable that with the sale of the larger property, including the subject property, in favour of Smt. Chamamma under the sale deed dated 21.09.1978, there would be attornment of tenancy in her favour by operation of law under Section 109 of the Transfer of Property Act, 1882. The appellants- defendants, with this attornment, cannot deny Smt.Chamamma’s title to the subject property, or the title of her legal representatives. The declaration of the first appellate Court that the appellants-defendants are debarred from taking advantage after dismissal of the HRC petition in HRC No.11/1995 and HRCRP No.11/2003 would be justified in the facts and circumstances of the case and also permissible in view of the provisions of Section 116 of the Evidence Act, 1872. As such, both the judgments and the decrees by the trial Court and the first appellate Court do not call for any interference. The appellants have not made out any substantial question of law for consideration. As such, there is no reason for interference in this appeal. However, the appeal should be disposed of clarifying that the finding by the Courts below that the appellants-defendants are estopped from disputing Smt.Chamamma’s title to the subject property (or her legal representatives’ title to the subject property) shall not come in the way of the appellants-defendants taking such other defence as would be otherwise permissible in law if any proceedings are initiated for their eviction from the subject property by the legal representatives of Smt. Chamamma or persons claiming under them.
The appeal is accordingly disposed of with the aforesaid observations.
Sd/- Judge SA Ct:sr