In a regular second appeal regarding recovery of vacant possession, the High Court of Karnataka dismissed the appeal. The court upheld the concurrent findings of lower courts that the respondent was a licensee rather than a tenant or owner, rejecting the challenge to the appellate court's rejection of additional documents.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF SEPTEMBER, 2022
BEFORE
THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO.672 OF 2020 (POS)
BETWEEN:
SMT.MAHALAXMI W/O LATE H.B.KALAPPA AGED ABOUT 57 YEARS R/AT GUMMANAKOLLI VILLAGE KUSHALNAGAR HOBLI SOMWARPET TALUK KODAGU DISTRICT PIN CODE - 571234
...APPELLANT
(BY SRI.MANJUNATHA H, ADVOCATE)
AND
SRI.MANJUNATHA S/O KULLEGOWDA AGED ABOUT 48 YEARS R/AT MADAPATNA VILLAGE KUSHALNAGAR HOBLI SOMWARPET TALUK KODAGU DISTRICT PIN CODE - 571234
…..RESPONDENT
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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 19.12.2019 PASSED IN R.A.NO.19/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE, SOMWARPETE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 31.01.2019 PASSED IN O.S.NO.53/2012 ON THE FILE OF THE CIVIL JUDGE AND JMFC, KUSHALNAGAR AND ETC.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the unsuccessful defendant feeling aggrieved by the concurrent findings of the Courts below in decreeing the suit filed by plaintiff directing the defendant herein to handover the vacant possession of the suit schedule property.
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schedule property. The plaintiff claims to be the absolute owner of the suit schedule property bearing site No.63/33 in Sy. No.66/1. The plaintiff asserts title on the basis of Hakku Pathra bearing No.97/87-88 issued by the Tahasildar, Somwarpet. The plaintiff claims that the defendant, who had friendly relationship with the plaintiff, requested to provide accommodation for a period of one year. At her request, the plaintiff permitted the defendant to reside in the suit schedule premises for a period of one year as a licensee, which is commencing from 01.01.2011. The plaintiff has further pleaded that he has requested defendant to hand over vacant possession. Since defendant did not vacate the suit schedule premises, plaintiff was compelled to issue legal notice on 08.03.2012 revoking the license and consequently, seeking possession of the suit schedule property.
the proceedings and stoutly denied the entire averments made in the plaint. At para No.4(b) of the written
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statement, the defendant admitted that plaintiff is the owner of the suit schedule property. The defendant claimed that he is in possession of the suit premises for last nine years on the basis of monthly rent at the rate of Rs.1,000/- per month. The defendant further claimed that plaintiff has offered to sell suit premises and accordingly, executed an agreement of sale dated 15.07.2005. Therefore, defendant claimed that now she holds possession as an agreement holder. Therefore, the present suit is not maintainable. It is also contended that possession of the defendant is protected under the provisions of the Transfer of Property Act.
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evidence led in by both parties answered issue Nos.1 and 5 in the affirmative while issue Nos.2 to 4 answered in the negative. The Trial Court held that plaintiff has succeeded in proving that defendant is a licensee under the plaintiff.
recorded a finding that defendant having claimed that she is a tenant in the suit premises has not led any evidence. No documents are produced indicating that there is a rent agreement between the parties. The Trial Court also found that no rent receipts are produced. The contention of defendant that in view of sale agreement executed by the plaintiff in favour of the defendant, the relationship of landlord and tenant would come to an end and therefore, the defendant would assume a status of a prospective purchaser and was also not accepted by the Trial Court. The Trial Court, while dealing with the agreement to sell, which is marked at Ex.D.28, has come to the conclusion
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that the said document cannot be looked into for want of registration. The document admittedly being unregistered would not come to the aid of the defendant and her defence based on the suit agreement cannot be looked into. It is in this background, the Trial Court having meticulously examined oral and documentary evidence led in by both parties has come to the conclusion that defendant was put in possession as a licensee and therefore, the plaintiff is entitled to recover possession.
the Trial Court, defendant preferred an appeal before the Appellate Court in R.A.No.19/2019. During pendency of the appeal, defendant sought leave of the Court to produce additional documents by way of additional evidence. The defendant sought leave to rely on the rent receipts as well as Hakku Patra issued in favour of the defendant on 18.08.2017 relating to the very suit schedule property. Placing reliance on these additional documents, the contention of the defendant was in two folds. Relying on
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the rent receipts, the defendant claimed that there exists landlord and tenant relationship. Defendant independently asserts title over the suit schedule property on the basis of Hakku Patra dated 18.08.2017. The Appellate Court while dealing with the additional documents has declined to accept the said document. In so far as Hakku Patra is concerned, the Appellate Court was of the view that it pertains to Sy. No.7/1P2 measuring 20x30 feet, which is entirely different from the suit schedule property. Therefore, the Appellate Court declined to entertain the additional documents that were sought to be produced before the Appellate Court. Appellate Court having assessed the materials on record has come to the conclusion that the plaintiff has succeeded in proving that defendant was inducted in the suit schedule property as a licensee and therefore, plaintiff is entitled to recover the possession. Against these concurrent findings, the defendant is in second appeal.
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AND ANOTHER V. M.K.SHANKAR PRASAD AND
ANOTHER reported in AIR 2009 KARNATAKA 88 .
the suit schedule property based on Hakku Patra bearing No.97/87-88 vide Ex.P.7. Therefore, if Hakku Patra is already issued to the plaintiff in respect of the suit schedule property, I am unable to understand as to how the Tahasildar, Somwarpet can allot the very property in favour of the defendant that too during the pendency of the proceedings. The defendant is also estopped from disputing title of the plaintiff in the light of the stand taken in the written statement. If he has set up an agreement to sell against the plaintiff, the same amounts to admission of title of the plaintiff. It is quite strange to note that till this date, defendant has not filed any suit seeking enforcement of the alleged agreement to sell. The rent receipts, which are produced, are of the year 2001, would also not come to the aid of the defendant. These additional documents
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relating to rent receipts are of no consequences as the present suit is one for possession based on title.
defendant was inducted in the suit premises as a licensee. The conduct of defendant is also found to be quite unfair throughout the proceedings. Having set up a claim on the basis of agreement to sell before Trial Court has come up with different version before the Appellate Court. Before the Appellate Court, defendant has virtually asserted title over the property by relying on the subsequent Hakku Patra, which is of the year 2017. All these significant details are taken into consideration by both Courts. The defendant at the first instance never disputed title of the plaintiff. If that is so, plaintiff is entitled to seek possession of the property. Both Courts have concurrently held that the defendant has failed to prove the jural relationship of landlord and tenant. These concurrent findings recorded by the Courts below is based on legal evidence and this Court cannot under Section 100 of CPC revisit oral and
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documentary evidence and reassess evidence on record. Such a recourse is not permissible under Section 100 of CPC. The judgments cited by learned counsel appearing for the appellant are not applicable to the present case on hand.
This appeal is devoid of merits and accordingly,
stands dismissed .
Sd/JUDGE
NBM
3 issues framed by the court
Whether the High Court can reappreciate evidence to conclude that there is a landlord-tenant relationship when lower courts held the occupancy was that of a licensee.
Whether subordinate courts were liable to be set aside for failing to properly deal with additional documents produced before the appellate court.
Whether the appellant is entitled to recover possession of the schedule property based on the document of title.
Colour shows how this judgement treated each authority
D.S.MANJUNATH VS. M.KRISHNAIAH SETTY (SINCE DECEASED) BY HIS LRSReferred¶41
2017(3) KCCR 2088
B.PARAMASHIVAIAH AND ANOTHER V. M.K.SHANKAR PRASAD AND ANOTHERReferred¶44
AIR 2009 KARNATAKA 88 · Who else cites this
1 provisions across 1 enactments
SMT.MAHALAXMI W/O LATE H.B.KALAPPA
SRI.MANJUNATHA S/O KULLEGOWDA
SACHIN SHANKAR MAGADUM
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
