THE ARCHDIOCESE OF BANGALORE v. D.N. NAGENDRA

THIS RSA IS FILED UNDER SECTION 100 OF CPC, 1908 AGAINST THE JUDGMENT AND DECREE DATED 16.12.2022 PASSED JUDGE, III ADDITIONAL DISTRICT AND SESSIONS CHIKKABALLAPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 10.10.2019 PASSED IN OS NO.83/2013 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, CHIKKABALLAPURA AND ETC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT

1. This matter is listed for admission. Heard the learned counsel for the appellant.

2. This appeal is filed against the concurrent finding of the Trial Court and First Appellate Court. The factual matrix of case of the appellant/plaintiff before the Trial Court that plaintiff is the absolute owner of the property and defendant is the tenant and defendant denied the very tenancy and hence Trial Court framed an issues whether the plaintiff prove that he is the absolute owner of the plaint schedule property, whether the plaintiff - 3 - NC: 2025:KHC:45681 RSA No. 1554 of 2023 HC-KAR proves that there exists a relationship of landlord and lessee between the plaintiff and defendant. In order to substantiate the case of the plaintiff, examined the power of attorney holder as P.W.1 and P.W.1 deposed before the Court that he is not having any personal knowledge about the document of Ex.P.3-rental agreement. Apart from that he categorically admits that he never witnessed the payment of rent. In order to substantiate that the respondent was a tenant, not placed any material before the Court, even not produced any book maintained by the plaintiff for having taken any rent from the tenant. Even though P.W.2 deposed before the Court that he has got documents for having issued the rent receipt and he is having a receipt counter file. But, he has not produced any counter file as deposed on oath. Having taken note of evidence of P.W.1 and P.W.2, the Trial court answered the Issue No.1 as negative in coming to the conclusion that in order to prove the relationship of tenant and landlord, nothing is placed on record and hence dismissed the suit. - 4 - NC: 2025:KHC:45681 RSA No. 1554 of 2023 HC-KAR

3. Being aggrieved by the said judgment and decree of dismissal of the suit, an appeal is filed before the Appellate Court. The Appellate Court having re-assessed both oral and documentary evidence as well as the grounds which have been urged formulated the point whether the plaintiff proves that plaintiff is the absolute owner of the suit schedule property and whether the plaintiff further proves the relationship of tenant and landlord between the plaintiff and defendant and whether judgment and decree of the Trial Court is perverse and whether it requires interference of appellate Court. The appellate Court having re-assessed both oral and documentary evidence available on record, comes to the conclusion that nothing is placed on record to establish the relationship between the tenant and landlord and though claims that Ex.P.3 is the rental agreement and in order to prove the same also, the plaintiff has not placed any material either rent receipt and even though examined the P.W.2 that he is having a counter file having issued the - 5 - NC: 2025:KHC:45681 RSA No. 1554 of 2023 HC-KAR receipt and the same is also not produced before the Court. Hence, having considered the reasoning of the Trial Court, the appellate Court comes to the conclusion that nothing is placed on record in order to comes to other conclusion and dismissed the appeal.

4. Being aggrieved by the concurrent finding, the present second appeal is filed before this Court. The main contention of the counsel appearing for the appellant before this Court is that defendant is estopped from disputing the appellant's title as per Section 116 of Indian Evidence Act and also the appellant is the sole trustee owning the movable property under its jurisdiction. Hence, this Court has to admit and frame substantive question of law.

5. Having heard the appellant’s counsel and it is not the case of the appellant that both the Courts have not considered the material available on record. But, having considered the material on record, when the specific issue was framed before the Trial Court with regard to the jural - 6 - NC: 2025:KHC:45681 RSA No. 1554 of 2023 HC-KAR relationship between the parties are concerned since the tenant disputes the jural relationship and in order to prove the case of the plaintiff, examined P.W.1 who is a GPA holder and GPA holder in his cross-examination categorically says that the executant of the GPA is hale and healthy and he is taking care of the administration and no explanation with regard to why he did not enter into the witness box. Apart from that witness who has been examined before the Court is not aware anything about Ex.P.3-rental agreement allegedly executed and even clear admission is given that he has not witnessed at any point of time payment of rent by tenant in favour of the plaintiff. He is also not having any personal knowledge about the rental agreement and he is not having personal knowledge about the suit schedule property and all these admissions were taken note of by the Trial Court. The Trial Court in detail discussed the admission on the part of P.W.1 while considering the material on record. Even though P.W.2 was examined, he also re-iterated that - 7 - NC: 2025:KHC:45681 RSA No. 1554 of 2023 HC-KAR execution of power of attorney in favour of P.W.1 and also deposed before the Court that he did not see the defendant and he categorically admits that he did not know anything about what business defendant is doing in the rented premises and also not maintained any book of payment of rent. But, though he claims that he gave the instructions to the advocate to prepare the suit and also though claims that he has issued the receipt and also having counter file in his custody, but, he did not produce anything before the Court and even not placed any record by P.W.2 to establish the jural relationship between the plaintiff and defendant as landlord and tenant. When such materials are considered by the Trial Court and Appellate Court, when there is no any perversity with regard to the finding of tenancy is concerned since the plaintiff fails to establish the jural relationship between a landlord and tenant. Hence, I do not find any ground to admit and frame any substantive question of law and this Court can exercise the powers under Section 100 of CPC only if there - 8 - NC: 2025:KHC:45681 RSA No. 1554 of 2023 HC-KAR is any perversity in the finding of Trial Court and Appellate Court without considering the material and no such perversity is found and with regard to the question of law is also concerned, when the plaintiff fails to prove the jural relationship between the plaintiff and defendant as a landlord and tenant, question of admitting the second appeal does not arise. Hence, I do not find any ground to admit and frame substantive question of law.

6. In view of the discussions made above, I pass the following: ORDER Second appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE RHS List No.: 1 Sl No.: 32