The High Court
Case Details
- 1 - NC: 2025:KHC:14902 RSA No. 1470 of 2016 C/W RSA No. 1027 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1470 OF 2016 (RES) C/W REGULAR SECOND APPEAL NO. 1027 OF 2016 (POS) IN RSA No. 1470/2016 BETWEEN: SHRI MALARAYA DHOOMAVATHI DAIVASTHANA KINYA BELARANGE MANGALORE-575023 REP. BY ITS HERIDITARY TRUSTEE MR BALAKRISHNA SAMANI, HINDU S/O THIMMAYYA SAMANI HINDU AGED ABOUT 69 YEARS REP. BY GPA HOLDER MR SIVARAMA N SHETTY S/O LATE NARAYANA SHETTY HINDU, AGED ABOUT 59 YEARS R/AT SANTHYAGUTHU, KINYA POST MANGALORE TALUK-575 023 (BY SRI. SHIVARAMA BHAT O., ADV.) AND: MR NARAYANA POOJARY S/O MONAPPA POOJARY HINDU, AGED ABOUT 56 YEARS R/AT KINYA BELERANGE MANGALORE TALUK-575 023 …APPELLANT …RESPONDENT THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 15.03.2016 PASSED IN RA NO.159/2013 ON THE FILE OF THE III ADDL. SENIOR CIVIL JUDGE AND JMFC., MANGALURU, D.K., ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 26.08.2013 PASSED IN OS NO.659/2011 ON THE FILE OF THE III ADDL. CIVIL JUDGE AND JMFC, MANGALORE. Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:14902 RSA No. 1470 of 2016 C/W RSA No. 1027 of 2016 IN RSA NO. 1027/2016 BETWEEN: SRI NARAYANA POOJARY S/O MONAPPA POOJARY, HINDU, AGED ABOUT 56 YEARS R/A KINYA BELERENGE MANGALORE TALUK AND DISTRICT DHAKSHINA KANNADA-575 023 (BY SRI. RAMA BHAT K., ADV.) AND: SRI MALARAYA DHOOMAVTHI DAIVASTHANA KINYA BELERENGE, MANGALORE TALUK REP. BY ITS HEREDITARY TRUSTEE MR BALAKRISHNA SAMANI, HINDU S/O THIMMAYYA SAMANI AGED ABOUT 69 YEARS REP BY GPA HOLDER MR SHIVARAMA N SHETTY S/O LATE NARAYANA SHETTY AGED ABOUT 59 YEARS R/A SANTHYAGUTHU, KINYA POST MANGALORE TALUK DHAKSHINA KANNADA DIST.-575 023 (BY SRI. SHIVARAMA BHAT O., ADV.) ...APPELLANT ...RESPONDENT THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 15.03.2016 PASSED IN R.A NO.159/2013 ON THE FILE OF THE III ADDL. SENIOR CIVIL JUDGE AND JMFC., MANGALURU, D.K., ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 26.08.2013 PASSED IN O.S NO.659/2011 ON THE FILE OF THE III ADDL. CIVIL JUDGE AND JMFC, MANGALORE. THESE APPEALS, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI - 3 - NC: 2025:KHC:14902 RSA No. 1470 of 2016 C/W RSA No. 1027 of 2016 ORAL JUDGMENT
Legal Reasoning
These two Regular Second Appeals are arising out of the same judgment and decree dated 15.03.2016 passed in R.A No.159/2013 by the learned III Addl. Senior Civil Judge and JMFC, Mangaluru, D.K. 2. For convenience, the parties are referred to based on their rankings before the Trial Court. The appellant in RSA No.1027/2016 was the defendant and the respondent was the plaintiff. In RSA No. 1470/2016, the appellant was the plaintiff and the respondent was the defendant. 3. Brief facts leading rise to the filing of these appeals are as follows: The plaintiff filed a suit in O.S.No.659/2011 against the defendant for possession and damages. It is the case of the plaintiff that the plaintiff is the absolute owner of the suit schedule property and the defendant was working in plaintiff-Daivasthana and was allowed to carry on his - 4 - NC: 2025:KHC:14902 RSA No. 1470 of 2016 C/W RSA No. 1027 of 2016 business activities in the suit schedule premises on humanitarian ground. The suit schedule premises is a roof building that measures 150 sq.ft. The defendant was
Legal Reasoning
paying a license fee of Rs.200/- per month. It is contended that the defendant has not paid license fee for the last three years. The defendant is causing a nuisance for the smooth administration of the plaintiff by trying to trespass into the suit schedule property. The plaintiff revoked his license on 02.07.2011 by giving a notice. The defendant sent a false reply to the said notice. Hence, the plaintiff is entitled to damages at the rate of Rs.50/- per day. Hence, a cause of action arises for the plaintiff to file a suit for possession and damages. Accordingly, prays to decree the suit. 4. The defendant filed a written statement admitting that during the management of the plaintiff - Daivasthana by Sri. Mahabala Alva permitted the defendant to construct a residential building on the vacant land belonging to the Daivasthana. On the basis of the - 5 - NC: 2025:KHC:14902 RSA No. 1470 of 2016 C/W RSA No. 1027 of 2016 said permission and direction given by Sri. Mahabala Alva, the defendant, constructed the residential building by investing huge hard earned money. He obtained an electricity connection in his name, and he made improvements. Hence, he is not liable to pay any mesne- profits. Accordingly, the defendant prayed to dismiss the suit. 5. The Trial Court, based on the pleadings of the parties, framed the following issues: 1. "Whether plaintiff proves that, the plaintiff is the owner of the suit schedule property? 2. Whether the plaintiff proves that, the defendant was working in the plaintiff, Daivasthana and hence the plaintiff allowed the defendant to carry on his business activities in the suit property on humanitarian ground? 3. Whether plaintiff proves that, the defendant is causing nuisance for smooth administration of the plaintiff by trying to trespass into the schedule property? 4. Whether plaintiff proves that giving legal notice revokes the license to the defendant dated 02.07.2011? - 6 - NC: 2025:KHC:14902 RSA No. 1470 of 2016 C/W RSA No. 1027 of 2016 5. Whether the plaintiff is entitled to damages at the rate of Rs.50/- per day from the date of the suit till the date of possession? 6. Whether the Court fee paid by the plaintiff is correct? 7. Whether the plaintiff is entitled to relief as prayed in the plaint? 8. What order or decree?" Additional Issue: 1) "Whether the defendant proves that the license that is being granted is irrevocable as contended in the written statement?" 6. The plaintiff, to substantiate its case, examined its general power of attorney holder as P.W.1 and marked six documents as Exs.P1 to P6. On the other hand, the defendant examined himself as D.W.1 and marked nine documents as Exs.D1 to D9. The trial Court, after recording the evidence, hearing on both sides and assessing of both oral and documentary evidence, answered issues No. 1 to 5, 7 and Additional Issue No.1 in the negative, Issue No.6 in the affirmative and Issue No.8 - 7 - NC: 2025:KHC:14902 RSA No. 1470 of 2016 C/W RSA No. 1027 of 2016 as per the final order. The suit of the plaintiff was dismissed vide judgment dated 26.08.2013. The plaintiff, aggrieved by the judgment and decree in O.S.No.659/2011, preferred an appeal in R.A.No.159/2013 on the file of the III Addl. Senior Civil Judge and JMFC, Mangaluru. The First Appellate Court after hearing the learned counsel for respective parties, framed the following points for consideration: 1. Whether the plaintiff that he had validly revoked the licence of the defendant and entitled for the vacant possession of the schedule premises? 2. Whether the appellant proves that the impugned judgment and decree passed by the lower court in O.S.No.659/2011 dt.26.08.2013 is illegal, perverse and contrary to the provisions of law as well as on facts of the case? 3. Whether interference of this court is necessary? if so to what extent? 4. What order? 7. The First Appellate Court, on the re-assessment of verbal and documentary evidence, answered Points No. 1 to 3 in the affirmative and point No.4 as per the final - 8 - NC: 2025:KHC:14902 RSA No. 1470 of 2016 C/W RSA No. 1027 of 2016 orders and the appeal was allowed vide judgment dated 15.03.2016 and set aside the judgment and decree passed in O.S.No.659/2011 dated 26.08.2013. The defendant was directed to hand over the vacant possession of the schedule premises to the plaintiff within two months from the date of the order. The defendant, aggrieved by the impugned judgment passed by the First Appellate Court, filed the Regular Second Appeal in RSA No.1027/2016. The plaintiff aggrieved by the dismissal of the suit about the mesne-profits preferred a Regular Second Appeal in RSA No.1470/2016. 8. Heard the arguments of the learned counsel for the defendant and the plaintiff and perused the records. 9. Learned counsel for the defendant submits that the plaintiff is the owner of the suit schedule property. Sri.Mahabala Alva, the then Trustee of the plaintiff Daivasthana has permitted the defendant to construct a house in the open space belonging to Daivasthana. It is further submitted that the defendant is in possession of - 9 - NC: 2025:KHC:14902 RSA No. 1470 of 2016 C/W RSA No. 1027 of 2016 the suit schedule premises as a Licensee. The plaintiff cannot revoke the license till the death of the defendant. It is further submitted that the First Appellate Court has committed an error in passing the impugned judgment. It is further submitted that the First Appellate Court has failed to consider the provisions of Sections 60 and 64 of the Indian Easements Act, 1982. Hence, on these grounds, the learned counsel prays to allow the appeal filed by the defendant and dismissed the appeal filed by the plaintiff. 10. Per contra, the learned counsel for the plaintiff submits that the defendant has admitted the plaintiff’s title over the suit schedule property. He submits that the defendant was permitted to reside in the suit schedule property, and is in permissive possession. He also submits that the plaintiff issued a legal notice on 02.07.2011 revoking the license. After revocation of license, the defendant has no right to continue in possession of the suit schedule premises. After revocation, the possession of the defendant is unauthorized. Hence, the plaintiff is - 10 - NC: 2025:KHC:14902 RSA No. 1470 of 2016 C/W RSA No. 1027 of 2016 entitled to damages at the rate of Rs.50/- per day. Both the Courts below have committed an error in dismissing the suit for damages. He submits that the First Appellate Court considered the admission of the defendant in the written statement in para No.6 regarding the title of the plaintiff over the suit schedule property and passed the impugned judgments. Hence, he submits that the judgment and decree passed by the First Appellate Court insofar as possession is concerned is just and proper and does not call for any interference. However, regarding the mesne profit, the impugned judgment requires interference. Hence, on these grounds, he prays to allow the appeal filed by the plaintiff and dismiss the appeal filed by the defendant. 11. This Court admitted the appeal in RSA No. 1027/2016 on 20.06.2016 by framing following substantial questions of law: i. Whether the Lower Appellate Court is justified in reversing the judgment and decree of the trial Court in granting - 11 - NC: 2025:KHC:14902 RSA No. 1470 of 2016 C/W RSA No. 1027 of 2016 possession in favour of the plaintiff in the absence of any source of title for declaration? ii. Whether the Lower Appellate Court is justified in reversing the judgment and decree of the trial Court in view of the provisions of Sections 60 to 64 of the Indian Easements Act, 1882? iii. Whether the Lower Appellate Court is justified in reversing the judgment and decree of the trial Court when the termination of license alleged by the plaintiff is valid? 12. The appeal in RSA No.1470/2016 was admitted on 04.12.2023 to consider the following substantial question of law: "Whether the appellate Court taking cognizance of the admissions elicited in the cross-examination of defendant wherein he has admitted that plaintiff- temple is the owner of the suit property and has further admitted that subject matter of suit is a shop which is found to be in occupation of the defendant erred in declining mesne profits without assigning any reasons?" 13. Both these appeals arising out of the judgment passed in O.S.No.659/2011 and R.A.No.159/2013, they - 12 - NC: 2025:KHC:14902 RSA No. 1470 of 2016 C/W RSA No. 1027 of 2016 are taken together for the common discussion, to avoid repetition of facts. Reg- Substantial Questions of Law No.1 to 3 in RSA No. 1027/2016: The substantial questions of law No.1 to 3 in RSA No. 1027/2016 are interlinked; hence, they are taken up together for the common discussion to avoid repetition of facts. i. Whether the lower Appellate Court is justified in reversing the judgment and decree of the trial Court in granting possession in favour of the plaintiff in the absence of any source of title for declaration? ii. Whether the lower Appellate Court is justified in reversing the judgment and decree of the trial Court in view of the provisions of Sections 60 to 64 of the Indian Easements Act, 1882? iii. Whether the lower Appellate Court is justified in reversing the judgment and decree of the trial Court when the termination of licence alleged by the plaintiff is valid? 14. The plaintiff in order to substantiate the case examined its general power of attorney holder as P.W.1. - 13 - NC: 2025:KHC:14902 RSA No. 1470 of 2016 C/W RSA No. 1027 of 2016 He deposed that the plaintiff is the absolute owner of the suit schedule property and the defendant was allowed to reside in the plaint schedule property purely on the permissive basis. He deposed that the plaint schedule premises is a tiled roof building measuring about 150 sq.ft. He has further deposed that the defendant was paying license fee of Rs.200/- per month. However, for the last three years, the defendant has not paid the license fee and he is in arrears of license fee. The defendant is causing nuisance for smooth administration of the plaintiff by trying to trespass into the plaint schedule property and commit waste and damage to the plaint schedule property. The plaintiff issued a legal notice on 02.07.2011 revoking the license. The defendant was reply to the legal notice. The defendant did not vacate the premises. Hence, the plaintiff is constrained to file a suit in O.S.No.659/2011. 15. The plaintiff to prove its case, was marked documents. A general power of attorney was marked as Ex.P.1, which the plaintiff had executed a general power of - 14 - NC: 2025:KHC:14902 RSA No. 1470 of 2016 C/W RSA No. 1027 of 2016 attorney in favour of P.W.1 to depose on its behalf. Ex.P.2 is the certified copy of saguvali chit which discloses that the said suit schedule property was granted in favour of the plaintiff. Ex.P.3 is the original akar band, which discloses that the plaintiff is the owner of the suit schedule property. Ex.P.4 is the office copy of the legal notice, which reveals that the plaintiff has revoked the license. Ex.P.5 is the reply notice, issued by the defendant to the plaintiff. Ex.P.6 is the order passed by the Deputy Commissioner, Mangalore. During the cross examination, it is suggested to P.W.1 that the plaintiff is the owner of the suit schedule property. The said suggestions was admitted by P.W.1. It is further suggested that the said property was given by the plaintiff to the defendant on a license basis and the plaintiff has no right to revoke the license. The said suggestion was denied by P.W.1. Except suggesting the facts above, nothing has been elicited from the mouth of P.W.1 to disbelieve the evidence. - 15 - NC: 2025:KHC:14902 RSA No. 1470 of 2016 C/W RSA No. 1027 of 2016 16. The defendant, examined himself as D.W.1. He deposed that the plaintiff is the absolute owner of the suit schedule property. During the cross examination, it is admitted that the plaintiff-Daivasthana temple belonged to endowment and from this, if cannot be constructed that the defendant is not under licence of the plaint schedule property. It is elicited that the plaintiff had permitted him to construct a building and the defendant has spent huge amount for construction of the suit schedule premises. The defendant had produced electricity bills, establishing his possession over the suit schedule property. Further he admits in the cross examination that he cannot hold as a tenant and only licensee. Further, the defendant has failed to establish that he is in possession of the suit schedule premises as a licensee. Further, the First Appellate Court, considering section 60(b) of the Easements Act held that the nature of the work executed has to be looked at and the intention of the party executing the work is altogether immaterial. The amount of expenses incurred by the licensee in that connection of the work connected and the - 16 - NC: 2025:KHC:14902 RSA No. 1470 of 2016 C/W RSA No. 1027 of 2016 duration of benefits which are to arise from such work play a part in the determination of the question by the amount of expenses incurred is very small and such as would be incurred by any reasonable men in the ordinary course of employment of a revocable license without any further expectations or the work executed is only a transitory character or was necessary for the enjoyment of the license in transitory state, such work cannot be said to be work of permanent character. However, some expenses might have been incurred on its account. But the same is in applicable to the fact of the case as rightly held by the trial Court. 17. Admittedly, the plaintiff has validly revoked the license by issuing a notice on 02.07.2011 as per Ex.P.4. The defendant has no right to continue in possession of the suit schedule property after revocation of license. The defendant continued to be in possession of the suit schedule property after revocation of license. The possession of the defendant over the suit schedule - 17 - NC: 2025:KHC:14902 RSA No. 1470 of 2016 C/W RSA No. 1027 of 2016 property is unauthorized. The plaintiff has established that the license issued to the defendant was revoked as required under a law. The first appellate Court has considered the entire materials on record and rightly passed the impugned judgment. The defendant is in possession and enjoyment of the suit schedule property since 1989 and he has been enjoying the suit schedule property without paying any rent to the plaintiff. Admittedly, the suit schedule property belongs to the temple, and the defendant has no right to continue in possession after the evocation of license. The First Appellate Court placing reliance on the judgment of this Court, reported in ILR 1995 KAR 3219 and 1975 KLJ
Decision
469 passed the impugned judgment. In view of the above discussions, I answer substantial questions of law No.1 to 3 in RSA No.1027/2016 in the affirmative. - 18 - NC: 2025:KHC:14902 RSA No. 1470 of 2016 C/W RSA No. 1027 of 2016 Reg- Substantial Question of Law in RSA No. 1470/2016: "(1) Whether the appellate Court taking cognizance of the admissions elicited in the cross- examination of defendant wherein he has admitted that plaintiff-temple is the owner of the suit property and has further admitted that subject matter of suit is a shop which is found to be in occupation of the defendant erred in declining mesne profits without assigning any reasons?" 18. The plaintiff has sought for relief of mesne- profits, however, to prove the damages, the plaintiff except examining the general power of attorney holder, has not examined any other witnesses to show that as on the date of termination of license what was the license fee prevailing in the locality. The plaintiff has not led any evidence on the mesne-profits. Both the Courts below have rightly rejected the contention of the plaintiff. As this Court has already answered substantial questions of law Nos. 1 to 3 in RSA No.1027/2016 in favour of the plaintiff at the cost of repetition, the plaintiff has not produced any material to establish the damages prevailing as of the date of revocation of the license. Both the Courts below have justified in dismissing the suit for mesne-profits. The - 19 - NC: 2025:KHC:14902 RSA No. 1470 of 2016 C/W RSA No. 1027 of 2016 plaintiff is not entitled to mesne-profits as at the rate of Rs.50/- per day. In view of the aforesaid discussion, I answer the above substantial question of law in the negative, and I do not find any error in the impugned judgments. 19. Accordingly, I proceed to pass the following: ORDER i. The Regular Second Appeals are dismissed. ii. The judgment and decree passed in R.A.No.159/2013 dated 15.03.2016 by the III Addl. Senior Civil Judge and JMFC, Mangaluru, D.K. is confirmed. iii. No order as to the cost. In view of the disposal of appeal in RSA No.1027/2016, I.A.No.1/2019 does not survive for consideration. Accordingly, the same is disposed of. Sd/- (ASHOK S.KINAGI) JUDGE JS/-, List No.: 1 Sl No.: 1