Dismissed

Chandrashekar Gupta v. Sri Jagadguru Jayadeva Murugarajendra

Karnataka HC20 Nov 2023RSA/1782/2021

Case brief

AI extract

What is this about?

The High Court dismissed a second appeal filed by a tenant challenging an appellate decree for ejectment. The Court held that the landlord, represented by a validly appointed Secretary, was competent to sue without all co-trustees, aligning with Supreme Court precedents on co-owner agency. Since possession was already secured via execution, further litigation was deemed devoid of merit.

What did the court decide?

The second appeal is deemed to have no substantial question of law and stands dismissed; pending applications are also dismissed.

Chandrashekar Gupta Vs Sri Jagadguru Jayadeva… — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:41527 RSA No. 1782 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO.1782 OF 2021 (EJE)

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BETWEEN:

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CHANDRASHEKAR GUPTA S/O LATE K R VISHWANATH SETTY AGED ABOUT 60 YEARS PRESENTLY R/O PROP. BIG BOSS JAYADEVA NEW COMPLEX BUILDING B.H.ROAD TUMAKURU 572101

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…APPELLANT

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(BY SRI.UMESH MOOLIMANI, ADVOCATE FOR SRI.S V PRAKASH, ADVOCATE)

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Digitally signed by CHAITHRA A Location: HIGH COURT OF KARNATAKA

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AND:

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SRI.JAGADGURU JAYADEVA MURUGARAJENDRA VIDHYARTHI NILAYA TRUST B H ROAD TUMAKURU - 572 101 BY ITS SECRETARY RAMAKRISHNAPPA

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RAJKUMAR S/O RANGAPPA AGED ABOUT 41 YEARS PROPRIETOR: NAVRANG BAKERY JAYADEVA COMPLEX BUILDING

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NC: 2023:KHC:41527 RSA No. 1782 of 2021

B H ROAD

TUMAKURU - 572 101

…RESPONDENTS

(BY SRI.GANGADHARAPPA A V, ADVOCATE FOR C/R.1)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 08.04.2021 PASSED IN RA.NO.80/2015 ON THE FILE OF II ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 14.07.2015 PASSED IN O.S.NO.157/1997 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, TUMAKURU AND ETC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The captioned second appeal is filed by defendant No.1 assailing the divergent judgments rendered by both Courts, wherein the plaintiff's suit for ejectment is dismissed by the Trial Court and reversed by the Appellate Court granting decree for ejectment and thereby, directing defendant No.1 to handover vacant possession of item No.2 of the suit schedule properties.

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3 - NC: 2023:KHC:41527 RSA No. 1782 of 2021

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For the sake of brevity, the ranks of the

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parties are referred as they are ranked before the Trial

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Court.

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Brief facts leading to the case are as under;

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The plaintiff - Trust has instituted a suit seeking relief of ejectment by directing the defendants to quit and deliver vacant possession of the suit schedule properties. The present suit is filed alleging that the defendant No.1 is a chronic defaulter in paying monthly rents and has not paid rent pertaining to item No.1 of the suit property from November, 1995 to 31st July 1997 and also not paid rent pertaining to item No.2 of the suit property from September, 1995 to 31st July, 1997.

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In response to the summons, defendant No.1 tendered appearance and filed written statement and admitted that he is the tenant of the plaint schedule properties. Defendant No.1, however, disputed the status of the plaintiff. Defendant No.1 filed additional written

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4 - NC: 2023:KHC:41527 RSA No. 1782 of 2021

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statement and contended that suit is not maintainable as the same is not authorized as per the terms of the Trust Deed dated 03.03.1977. Defendant No.1 also contended that plaintiff - Trust is not represented by a validly appointed Secretary and hence, prayed for dismissal of the suit.

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The plaintiff and defendants to substantiate

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their respective claims have let in oral and documentary evidence.

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The Trial Court taking note of the admissions elicited in the cross-examination of D.W.1 though held that plaintiff is the landlord of the suit schedule properties, however, proceeded to dismiss the suit on the ground that ejectment suit is not instituted by all the co-trustees and therefore, the plaintiff - Trust is not entitled to seek vacant possession of the suit schedule premises.

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Feeling aggrieved by the judgment and decree

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of the Trial Court, the plaintiff preferred an appeal in

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5 - NC: 2023:KHC:41527 RSA No. 1782 of 2021

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R.A.No.80/2015. The Appellate Court has independently

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re-assessed the entire material on record. On examining the material on record, the Appellate Court was not inclined to concur with the reasons recorded by the Trial Court while dismissing the suit on the ground that all the Trustees have never instituted the suit. The Appellate Court on the contrary placing reliance on the judgment rendered by the Hon'ble Apex Court in the case of MOHINDER PRASAD JAIN VS. MANOHAR LAL JAIN¹

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has held that the suit by Co-Owners or Co-Trustees is maintainable in law and there is no need to secure consent of other Co-Trustees unless other Co-Trustess have objected for initiating proceedings. In this background, the Appellate Court has reversed the conclusions and findings recorded by the Trial Court and has allowed the appeal in part and directed defendant No.1 to handover vacant possession of item No.2 of the suit schedule properties.

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1 (2006) 2 SCC 724

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6 - NC: 2023:KHC:41527 RSA No. 1782 of 2021

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Heard learned counsel appearing for the

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defendant No.1 and learned counsel appearing for the plaintiff.

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Learned counsel appearing for the plaintiff - Trust has also brought to the notice of this Court that plaintiff - Trust has secured possession in the execution proceedings on 11.09.2023 through process of the Court and a memo dated 15.11.2023 is filed to that effect.

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I have given my anxious consideration to the findings recorded by both Courts. The Trial Court at para No.11 of its judgment has culled out the admissions elicited in the cross-examination of defendant No.1, who is examined as D.W.1. In the cross-examination, defendant No.1 has admitted in unequivocal terms that he is the tenant and the plaintiff - Trust is the landlord of both premises and two separate agreements are executed thereby inducting the defendants as tenants in these two premises. The Trial Court has also taken cognizance of

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7 - NC: 2023:KHC:41527 RSA No. 1782 of 2021

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these admissions tendered in the cross-examination by defendant No.1 coupled with the pleadings in the written statement. Trial Court has non-suited the plaintiff on the ground that the Committee indicated in the Lease Deed and the Committee indicated in the present suit are different and therefore, the suit is not maintainable.

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This controversy is properly appreciated by the Appellate Court, while the Trial Court placing reliance on the judgment rendered by the GUJARATH HIGH COURT in the case of ATMARAM RANCHHODBHAI VS. GULAMHUSEIN GULAM MOHIYADDIN AND ANOTHER²

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has dismissed the suit.

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The controversy relating to the competence of Co-Owner or Co-Trustee initiating recovery proceedings is no more res-integra. The said issue is given quietus by the catena of judgments rendered by the Hon'ble Apex Court in the case of INDIA MANUFACTURING CO. AND

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2 AIR 1973 GUJARAT 113 (FB)

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8 - NC: 2023:KHC:41527 RSA No. 1782 of 2021

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ORS. V. BHAGABANDEI AGARWALLA (DEAD) BY L.RS. AND ORS.,³ . The Honb'le Apex Court has observed

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that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners and this principle was based on doctrine of agency. One co-owner filing a suit for eviction against the tenant does so, on his own behalf in his own right and as an agent of the other co-owners. The consent of other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant. From the above dictum, what can be inferred is that one of the co-owners can file a suit for eviction of tenant in a property generally owned by the co-owners. A co-owner filing a suit for eviction does so on his own behalf and in his own right and as an agent of other co-owners. The consent of other co-owners is assumed to be taken unless, it is shown that other co-owners were not agreeable to eject the tenant and the suit was filed in disagreement.

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3 AIR 2004 SC 1321

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9 - NC: 2023:KHC:41527 RSA No. 1782 of 2021

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Further in the case of PAL SINGH V. SUNDER SINGH⁴ ,

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the Hon'ble Apex Court has observed that one of the co-

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owners can alone and in his own right file a suit for ejectment of the tenant and it is no defence open to the tenant to question the maintainability of the suit on the ground that the other co-owners were not joined as parties to the suit. When property forming the subjectmatter of eviction proceedings is owned by several owners, every co-owner owns every part and every bit of the joint property along wit others and it cannot be said that he is only a part-owner or a fractional owner of the property so long as the property has not been partitioned. He can alone maintain a suit for eviction of the tenant without joining the other co-owners if such other co-owners do not object.

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The Co-Owner or Co-Trustee is competent to

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institute a suit and seek possession of the properties leased to the tenants. In those cases, where there is an

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4 (1989) 1 SCC 444

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10 - NC: 2023:KHC:41527 RSA No. 1782 of 2021

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inter-se dispute between co-owner or co-trustee, the Courts may decline to entertain an ejectment suit, unless inter-se disputes are decided by the competent Courts. In the present case, there is no rival claim. The Co-Trustees have not questioned the competence of the present Secretary, who has instituted the ejectment suit. During trial, the plaintiff has succeeded in eliciting in the cross-examination of defendant No.1, who has admitted in unequivocal terms that plaintiff is the landlord of suit schedule premises. Therefore, the findings and reasons recorded by the Trial Court are found to be contrary to the evidence on record and admissions elicited in the crossexamination of defendant No.1.

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The judgment and decree rendered by the Trial Court suffers from serious perversity. The Appellate Court being a final fact finding Authority has properly re-appreciated the entire evidence on record. The Appellate Court was justified in reversing the conclusions and reasons assigned by the Trial Court in regard to

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