Second appeal admitted under Section 100 CPC was dismissed as the appellant failed to substantiate claims that signatures on sale and rent agreements were forged, noting prior admission in cross-examination precluded perversity or substantial question of law.
The second appeal is dismissed; impugned order is affirmed.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF OCTOBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A.NO.422/2021 (POS)
BETWEEN:
SRI CHOODEGOWDA, S/O CHOODAIAH, AGED ABOUT 49 YEARS, RESIDING AT DODDAMALLURU VILLAGE, MALLUR HOBLI, CHANNAPATNA TALUK RAMANAGARA DISTRICT-571 501. … APPELLANT
[BY SRI P.M. GOPI, ADVOCATE FOR SRI P.M. SIDDAMALLAPPA, ADVOCATE]
AND:
SRI NANJUNDAPPA, S/O LATE BOREGOWDA, AGED ABOUT 64 YEARS, RESIDING AT DOOR NO.470/9/1, 7TH MAIN, 2ND STAGE, HAMPINAGARA, BENGALURU-560 104. ... RESPONDENT
THIS R.S.A IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 28.02.2020 PASSED IN R.A.NO.57/2018 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 29.08.2018 PASSED IN O.S.NO.80/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, CHANNAPATNA TALUK, RAMANAGARA DISTRICT.
THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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J U D G M E N T
This matter is listed for admission today. Heard the learned counsel for the appellant.
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defendant and his brother jointly purchased the suit schedule property in the name of defendant’s brother Bhadragiri. The defendant and his brother were jointly cultivating the suit schedule property and in the suit schedule property, the defendant and his brother jointly constructed a building and installed toys business in the suit schedule property. The katha of the suit schedule property was standing in the name of the defendant’s brother Bhadragiri because he is the elder member. The brother of the defendant obtained loan from the plaintiff without the consent of the defendant. The defendant is a ignorant and illiterate person and he does not know to read and write. The plaintiff and the defendant’s brother colluded with each other and they created a sale deed without the consent of the defendant, firstly the brother of the defendant advised him that he obtain loan from the plaintiff and for the said loan he will execute an agreement for interest basing to that agreement as a witness put thumb impression on the words of the defendant’s brother and he has not participated as a seller of the suit schedule property to the plaintiff.
5. The defendant further contended that there is no
relationship of landlord and tenant between the plaintiff and the
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defendant and the defendant has not obtained any premises or any property in suit survey number from the plaintiff for lease or for rental basis. The defendant is the owner and in possession of the suit schedule property as his own he is running toys business in the building since construction. The defendant has not agreed and has not executed any rent agreement with respect to the suit schedule property to the plaintiff at the rate of Rs.50,000/per month. It is contended that the plaintiff is a utter stranger to the suit schedule property and he is never in possession over the suit schedule property. It is also contended that at any point of time, the defendant has not paid any rent to the plaintiff. The plaintiff has created the documents to grab the property of the defendant. The defendant is an ignorant and illiterate person and he did not know the notice issued on him when the process was served. When the plaint and case papers were handed over to him, he approached the advocate then only he came to know the facts of the case. It is contended that the defendant is not the tenant under the plaintiff, the defendant did not execute any rent agreement in favour of the plaintiff. The plaintiff has created the alleged agreement to grab the property of the defendant. It is contended that the brother of the defendant by
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name Bhadragiri is not entitled to execute any sale deed or any documents to other person without the consent of the defendant. The plaintiff has no manner of right to claim over the suit schedule property on the basis of any document executed by the brother of the defendant. Hence, contended that the defendant is not liable to pay any rent as claimed by the plaintiff and there is no arrears of rent and hence prayed the Court to dismiss the suit.
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one witness as D.W.2 and got marked the documents at Exs.D.1
to 3. The Trial Court after considering both oral and documentary evidence placed on record, answered issue No.1 as affirmative in coming to the conclusion that the defendant is a tenant under the plaintiff and answered issue Nos.2 and 3 as negative regarding causing of damages to the premises. However, answered issue Nos.4 to 6 in the affirmative in coming to the conclusion that there was a legal termination of the tenancy and the plaintiff is entitled for possession and also for damages. Hence, the defendant/appellant herein filed an appeal in R.A.No.57/2018 being aggrieved by the judgment and decree of the Trial Court. The First Appellate Court considering the grounds urged in the appeal memo and hearing the arguments of the respective counsel, formulated the point whether the Trial Court has committed an error and calls for interference of this Court. The First Appellate Court, on re-appreciation of both oral and documentary evidence placed on record, confirmed the judgment of the Trial Court and dismissed the appeal. Hence, the present second appeal is filed before this Court.
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the suit and the First Appellate Court has committed an error in confirming the judgment of the Trial Court and erroneously accepted the evidence of P.W.1 to P.W.3 and the evidence of P.W.1 to P.W.3 is not corroborated by Exs.P.1 to 11 in proving the title and possession of the plaintiff over the suit schedule property. It is contended that both the Courts have committed an error in decreeing the suit without considering the admission of P.W.1 and both the Courts are not justified in decreeing the suit by holding that there is a relationship of landlord and tenant and tenancy is allegedly created and terminated in terms of Ex.P.8. The Courts below are not justified without apprising the pleadings and evidence on record, particularly the evidence of D.W.1 and D.W.2 and it requires interference of this Court and the Court has to frame the substantial question of law that both the Courts have committed an error and passed the impugned judgment, which is perverse as against the material available on record. Hence, it requires interference of this Court.
Court and the First Appellate Court, the case of the plaintiff before the Trial Court is that he had purchased the suit schedule
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property on 11.10.2013 and on the very same day, the defendant entered into tenancy agreement and the same was also renewed in 2014 and he committed default in payment of rent and also caused damages to the premises and hence he had lodged the complaint with the jurisdictional police and also sought for seeking vacating the premises and the defendant sought some time to vacate the premises, but later on he has turned hostile and refused to pay the rent and vacate the premises. Hence, legal notice was issued and no reply was given to the legal notice and without any other alternative, the suit is filed for ejection. In order to prove the case of the plaintiff, he relied upon the document Ex.P.1 sale deed and also the marked signature of P.W.2, who is an attesting witness which is marked as Ex.P.1(a). P.W.2 also supported the case of the plaintiff. Apart from that, other documents of mutation register extract, RTC extract, Form No.9 and tax paid receipts are produced before the Court as Exs.P.2 to 5 to evidence the fact that he is the owner of the premises. The plaintiff relied upon Exs.P.6 and 7 rent agreements and signature of P.W.2 and P.W.3 which is marked as Ex.P.6(a) and (b), legal notice which is marked as Ex.P.8, postal receipt and postal acknowledgment marked as
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Exs.P.9 and 10 and also agreement to sell prior to executing of sale deed which is marked as Ex.P.11.
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referring the document Exs.P.1, 6 and 7. Based on the admission given by him, the Trial Court comes to the conclusion that there exists relationship between the tenant and owner and answered issue No.1 as affirmative. However, not answered issue Nos.2 and 3 in favour of the appellant regarding causing of damages but comes to the conclusion that notice was issued in terms of Ex.P.8 and there was a valid termination of tenancy and with regard to damages is concerned also considered an amount of Rs.15,000/- per month.
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for the purpose of availing the loan. The First Appellate Court also taken note of the signature found on Ex.P.1 sale deed and also admitted that he along with Bhadragiri, plaintiff Kulduru Raveesh i.e., P.W.2 were present in the Sub-Registrar’s office where the document was signed. He admitted the signature found on document Ex.P.7 rent agreement dated 07.10.2014. D.W.1 claims that the document was already typewritten when he had signed the same, but he says that Exs.P.6 and 7 were not signed by his brother Bhadragiri. He admitted that Ex.D.2 relates to his wife and children and the name of his brother Karigowda is not found in Ex.D.2 and he pleaded ignorance about the exact amount of rent obtained by him and he has stated that he is running toys shop in Channapatna and he is having necessary knowledge to transact.
both the Trial Court as well as the First Appellate Court and also taken note of the answers elicited from the mouth of D.W.1 that he is running the shop and having business and necessary knowledge to transact and apart from that, his signature was admitted and though the learned counsel for the appellant contend before this Court that those signatures are not that of
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D.W.1 and I have already pointed out that if really the defendant
is disputing the signature, he ought to have sent the document to the handwriting expert and the same has not been done and instead of that, in the cross-examination he categorically admitted the signature available on Exs.P.1, 6 and 7. When such being the case and when both the Courts have given anxious consideration to the answers elicited from the mouth of defendant No.1, now he cannot contend that those signatures does not belong to him. The person who asserts before the Trial Court that the signatures does not belongs to him only has to prove the same, but no steps are taken and instead of that he has admitted in the cross-examination that the signature belongs to him. When such being the facts, the Trial Court has given the finding that there exists relationship of tenant and owner and the First Appellate Court, on re-appreciation of the evidence, considered both oral and documentary evidence placed on record and hence I do not find any force in the contention of the learned counsel for the appellant. In the absence of any substantial question of law involved in the matter, the question of invoking Section 100 of CPC does not arise. I also do not find any perversity in appreciating the evidence available on record
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by the Trial Court as well as the First Appellate Court and in the absence of perversity in giving the finding, the second appeal cannot be admitted.
following:
ORDER
The appeal is dismissed.
Sd/JUDGE
MD
Appellant
Respondent
H.P. Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
