The High Court
Case Details
- 1 - NC: 2025:KHC:21467 RSA No. 1734 of 2023 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.1734 OF 2023 (RES) BETWEEN: 1. SRI. RAJASHEKHAR D. @ RAJU S/O DEVADAS AGED ABOUT 42 YEARS R/O DOOR NO.154/1 NEAR BASAVESHWARA TEMPLE BASAVARAJPET DAVANAGERE. (BY SRI. B.M.HALA SWAMY, ADVOCATE) AND: …APPELLANT Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA 1. SRI. T. MOHAMMED SIRAJUR HUK S/O LATE ABDUL KAREEM AGED ABOUT 81 YEARS, BUSINESS R/O DEVARAJ URS ‘A’ BLOCK DAVANAGERE. …RESPONDENT (BY SRI. SANTOSH R. NELKUDURI, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 05.08.2023 PASSED IN R.A.NO.80/2022 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, DAVANAGERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 10.06.2022 PASSED IN O.S.NO.183/2013 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, DAVANAGERE. - 2 - NC: 2025:KHC:21467 RSA No. 1734 of 2023 HC-KAR THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
Legal Reasoning
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This matter is listed for admission and I have heard learned counsel for the appellant and learned counsel for the respondent. 2. This second appeal is filed against the concurrent finding of the Trial Court as well as the First Appellate Court. The factual matrix of the case of the respondent-plaintiff before the Trial Court is that that he has three brothers and they had filed suit in O.S.No.44/1989 for the relief of partition and separate possession of suit schedule property along with other properties. At that time, the father of the defendant was in occupation of the suit schedule property as a tenant. After his death, the defendant has continued in occupation of the suit schedule property as a tenant. The original tenant was also impleaded as a party to the suit in O.S.No.44/1989. After contest, the said suit was decreed by allotting 1/3rd share to the plaintiff and his brothers and remaining 1/4th share was - 3 - NC: 2025:KHC:21467 RSA No. 1734 of 2023 HC-KAR allotted to the share of the deceased Rahamattulla, who is none else than the elder brother of the plaintiff. Thereafter, the plaintiff and his brother filed final decree proceedings in FDP No.25/2002. In the said proceedings, the First Appellate Court has issued a direction to purchase 1/4th share of deceased Rahamattulla at the rate of Rs.200/- per square feet. Accordingly, legal heirs of deceased Rahamattulla have filed execution petition in Execution No.204/2009 for recovery of value of 1/4th share. The plaintiff and his brothers have paid a sum of Rs.2,10,112.50 towards 1/4th share of deceased Rahamattulla and by payment of the said amount, plaintiff and his brothers have become absolute owners of the property bearing No.154/1, 2 and 3. The suit property is a part of the entire property in No.154/1 to 3. 3. It is also the case of the plaintiff that plaintiff and his brothers have issued attornment notice to the defendant demanding rent of Rs.1,000/- per month and notice was served, but not paid the rent and he become defaulter in payment of rent. It is also contended that they are in very much need of the premises, since they are residing in a rented - 4 - NC: 2025:KHC:21467 RSA No. 1734 of 2023 HC-KAR premises. It is also contented that plaintiff has terminated the tenancy of the defendant by issuing legal notice on 26.02.2011 and demanded the defendant to vacate and handover the suit property on or before 31.03.2011. But, the defendant has not vacated the premises and instead, filed a suit in O.S.No.631/2012 seeking the relief of permanent injunction. The plaintiff has filed a memo stating that he will not dispossess the defendant without having recourse to law and he will be evicted under due process of law. Hence, the plaintiff filed the present suit for the relief of eviction and for possession. 4. The defendant appeared and filed the written statement contending that plaintiff is not the owner of the suit property and the defendant never remained as a defaulter of payment of rent as alleged by the plaintiff. The defendant is still ready to pay the balance rent, if this Court directs. It is also contented that defendant is residing in the suit schedule property along with his family members since 30 years and except the suit property, the defendant has no other property. It is further contended that defendant and his family members - 5 - NC: 2025:KHC:21467 RSA No. 1734 of 2023 HC-KAR were in possession and enjoyment of the property, till interference by the plaintiff and also pleaded with regard to filing of the suit and disposal of the suit. It is also contended that defendant has invested amount of more than Rs.3,00,000/- for repairing the suit property and prayed the court to dismiss the suit. 5. The Trial Court having considered the grounds urged in the plaint as well as the written statement, framed the issues whether there exists a jural relationship between the parties and whether the plaintiff is entitled for damages as claimed. 6. The plaintiff got examined himself as P.W.1 and got marked the documents as Exs.P1 to P10. In rebuttal of the evidence of plaintiff, the defendant examined himself as D.W.1 and not produced any documents. 7. The Trial Court having considered the averments made in the plaint and also the written statement, answered issue No.1 as ‘affirmative’ and in paragraph No.16 of the judgment, taken note of issuance of legal notice and also notice - 6 - NC: 2025:KHC:21467 RSA No. 1734 of 2023 HC-KAR of attornment. A perusal of Ex.P1 clearly disclose that after judgment and decree in O.S.No.44/1989, FDP is also filed and brothers have paid the amount and 1/4th share of Rahamattulla was purchased by the plaintiff and his brothers. Having taken note of termination of tenancy in terms of Ex.P4 and inspite of both the notices were issued, no reply was given. Hence, comes to the conclusion that in view of issuance of notice under Section 106 is crystal clear that if the landlord intends to evict his tenant from the property, he has to give 15 days prior quit notice to the tenant. Accordingly, he has given the notice and no reply was given. The Trial Court also considering the material available on record, comes to the conclusion that the fact that the appellant herein is a tenant of a erstwhile owner is not in dispute and suit, FDP and also execution petition was filed and it is also pleaded for having made the payment. The Trial Court also taken note of the fact that inspite of notice was acknowledged by D.W.1, he had categorically admitted in the cross-examination that plaintiff has issued the notice for eviction on 28.10.2010 and he has not tendered any reply to the said notice as observed in paragraph No.21. Having considered all these materials, the Trial Court in paragraph - 7 - NC: 2025:KHC:21467 RSA No. 1734 of 2023 HC-KAR No.24, comes to the conclusion that the very contention of the defendant that the plaintiff is not the owner of the property and the very contention that he was not the owner cannot be accepted since, the fact that he was a tenant is not in dispute and suit was pending between the family members is also not in dispute and FDP is filed and issuance of notice of termination is also not disputed by filing any reply. Hence, in paragraph No.24 of the judgment, the Trial Court accepted the case of the plaintiff and in paragraph No.25, the Trial Court also taken note that the defendant categorically admitted that he has not paid the arrears of rent to the plaintiff, even after issuance of notice of attornment of tenancy and also termination of tenancy. Hence, decreed the suit directing the defendant to vacate the suit schedule property and handover its vacant possession to the petitioner within two months from the date of the judgment. 8. Being aggrieved by the said judgment and decree of the Trial Court, an appeal is also filed before the First Appellate Court in R.A.No.80/2022. The First Appellate Court having considered the grounds urged in the appeal memo as well as - 8 - NC: 2025:KHC:21467 RSA No. 1734 of 2023 HC-KAR oral and documentary evidence, extracted the grounds in paragraph No.13 and also formulated the point regarding condonation of delay and so also whether the judgment of the Trial Court is perverse, capricious and erroneous. 9. Having reassessed the material available on record, the First Appellate Court also taken note of the admission, filing of suit and FDP proceedings and causing of attornment of tenancy notice and also termination notice and filing of the suit by the defendant in O.S.No.631/2012, wherein a memo was filed stating that he will evict the appellant herein under due process of law. The First Appellate Court having reassessed the material on record, comes to the conclusion that Ex.P10 is the certified copy of the order sheet in eviction petition bearing No. 202/2009. It discloses that Rahamattulla Khan and Gouse Khan are decree holders and Smt. Janabi and others are Judgment Debtors. This petition was filed for passing an order for purchase of 1/3rd share of D.HRs and apportionment of ‘A’ and ‘B’ schedule in accordance with final decree dated 22.04.2009 in FDP No.25/2002 on the file of the 1st Additional Civil Judge Court, Davanagere. The First Appellate Court also having taken - 9 - NC: 2025:KHC:21467 RSA No. 1734 of 2023 HC-KAR note of the fact that amount was paid consequent upon the judgment and decree and FDP proceedings and the said petition is filed by the legal heirs of Rahamattulla Khan. When there was a decree, FDP proceedings and also execution proceedings, apart from that after the judgment and decree and FDP proceedings, legal notice was issued terminating the tenancy and attornment notice was also issued. For all these notices, the appellant not given any reply disputing the tenancy, but only during the course of original proceedings, when the relief is sought for ejection, defense is raised that he is not a owner. But the fact that he was a tenant of a erstwhile owner is also admitted. When his status is a tenant, he cannot dispute the very documentary evidence which have been placed by the respondent when they being the family members have filed a suit and relief was granted for partition and accordingly, purchased 1/4th share of erstwhile owner. When such being the case, all these materials were taken note of by the Trial Court as well as the First Appellate Court and dismissed the same. 10. Now, learned counsel for the appellant would vehemently contend that relationship has not been established - 10 - NC: 2025:KHC:21467 RSA No. 1734 of 2023 HC-KAR and also counsel would contend that even in the written statement, categorically stated that he will pay the rent. But, the fact is that though such objection is raised in the written statement, not filed any application even to deposit the rent and the appellant herein is squatting on the property without payment of rent and suit was filed in the year 2013 and judgment and decree was passed long back i.e., prior to filing of suit. Even though specific defence was taken that he is ready to pay the rent from 2013 till 2015, not paid any single paisa of rent and the very contention that he took the defence that he will pay the rent cannot be ground to entertain the second appeal and with regard to the dispute in jural relationship, both the Courts have taken note of the proceedings which have taken place earlier and also taken note of the fact that consequent upon the judgment and decree of partition as well as the FDP proceedings and Ex.P10 certified copy of Execution Petition No.202/2009, wherein a claim was made with regard to 1/4th share of property of Rehamattulla to whom the appellant claims that he had given the property. When such being the case, the status of the tenant is only a tenant and he cannot dispute the title once he admits that he was a tenant. - 11 - NC: 2025:KHC:21467 RSA No. 1734 of 2023 HC-KAR 11. Apart from that, even categorically admitted regarding causing of notice of termination and attornment of tenancy notice and no reply was given and even not paid the rent and there is an admission with regard to receipt of attornment of tenancy notice as well as termination of tenancy notice and also non -payment of rent. All these factors were taken note of by the Trial Court and the First Appellate Court. Hence, the very contention of learned counsel for the appellant that Trial Court committed an error in granting the relief as sought and confirmation of the same by the First Appellate Court is erroneous cannot be accepted and I do not find any error committed by the Trial Court and the First Appellate Court. Learned counsel for the appellant has not made out any ground to admit the appeal and frame substantial question of law as contented in the second appeal with regard to jural relationship is concerned and when there is no denial with regard to attornment of tenancy as well as termination of tenancy, no such substantial question of law arises for consideration to be framed by admitting this second appeal. - 12 - NC: 2025:KHC:21467 RSA No. 1734 of 2023 HC-KAR 12. In view of the discussion made above, I pass the following:
Decision
ORDER The regular second appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE ST List No.: 1 Sl No.: 51