In an appeal under Section 100 CPC challenging concurrent findings on tenancy and illegal dispossession, the court dismissed the appeal at the stage of admission for failing to frame a substantial question of law.
The appeal is dismissed at the stage of admission as no substantial question of law is made out.
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.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR REGULAR SECOND APPEAL NO.2734 OF 2011 (RES)
BETWEEN:
JEEVAN KHADI GRAMODYOGA ASSOCIATION (WORKSHOP) (REG.) SITUATED AT ANNUR VILLAGE C.A.KERE HOBLI, MADDUR TALUK REPRESENTED BY ITS SECRETARY A.T.APPAJIGOWDA
…APPELLANT
(BY SRI GANAPATHI C.V., ADVOCATE)
AND:
Digitally signed by B LAVANYA Location: HIGH COURT OF KARNATAKA
1(e) VENKATESHA
S/O.LATE KENCHEGOWDA
AGED ABOUT 35 YEARS
R-1(a) TO R-1(e) ARE R/AT K.M.DODDI VILLAGE C.A.KERE HOBLI MADDUR TALUK - 571 428
R-2 & R-3 ARE R/AT THOREBOMMANAHALLI VILLAGE C.A.KERE HOBLI MADDUR TALUK - 571 428
… RESPONDENTS
(BY SRI M.VINAYAKEERTHY, ADVOCATE FOR R-1(a) & 1(c) TO 1(e); VIDE ORDER DATED 20.04.2021, APPEAL ABATES AS AGAINST R-1(b); R-2 & R-3 ARE SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET-ASIDE THE JUDGMENT AND DECREE DATED 13.07.2011 PASSED IN R.A.NO.5/2008 BY THE CIVIL JUDGE (SR.DN.), MADDUR, CONFIRMING THE JUDGMENT AND DECREE DATED 09.11.2007 PASSED IN O.S.NO.201/1999 BY THE PRINCIPAL CIVIL JUDGE (JR.DN.) AND JMFC, MADDUR AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
NC: 2023:KHC:33306 RSA No. 2734 of 2011
JUDGMENT
Heard learned counsel for appellant-plaintiff.
The plaintiff is a registered association established for the
purpose to start workshop to carry-out Smithy and Carpentry works and all types of village industries which comes under the purview of the Karnataka State Khadi and Village Industries Board and Khadi and Village Industries Commission. It was established to undertake all types of production, sales, distribution, training etc. and activities of the Karnataka State Khadi and Village Industries Board and Khadi and Village Industries Commission including handicrafts. Defendant No.1 was the owner of the schedule shop premises. The plaintiff
claims to have occupied the schedule shop premises in the month of June 1991 on a monthly rent of Rs.250/- by paying advance amount of Rs.10,000/- which did not carry interest and was to be repaid when the schedule premises will be vacated by the plaintiff. The tenancy commenced from 1st day of the month and ends on the last day of the month according to English calendar. It is further stated by the plaintiff that it was regular in payment of rent in respect of the schedule premises. It has paid rent till May, 1999. Defendant No.2 is the daughter of defendant No.1 and wife of defendant No.3. The plaintiff realised that defendant No.1 transferred the schedule shop premises in favour of defendant No.2.
4.1 It is the case of the plaintiff that the plaintiff has invested about Rs.85,000/- to establish the sales depot by incurring loan from Khadi Board and State Bank of Mysore, Bharathinagar. The plaintiff took possession of the schedule shop premises in June, 1991 and thereafter, furnished the shop premises in the next two months. The plaintiff has been manufacturing steel furniture, agricultural implements, steel fabrications etc. and those products have been sold at sale depot in the schedule premises.
NC: 2023:KHC:33306 RSA No. 2734 of 2011
4.2 It is stated that while doing such activities as stated supra , there were several office materials like chairs, table, office files, resolution book, cash book, cheque book, order placed forms, invoice and other movables stored in the shop premises including cash of Rs.45,000/-. Defendant Nos. 2 and 3 approached the plaintiff in the month of May, 1999 and informed that they are the owners of the schedule premises and collected the rent for the month of May, 1999 and demanded for further advance. Since the plaintiff refused the proposal of defendant Nos.2 and 3, the said defendants warned the plaintiff of dire consequences. In view of the threat given by defendant Nos.2 and 3, the plaintiff lodged a complaint before the jurisdictional Police and obtained an endorsement in NCR 224/99.
4.3 This being the state of affairs, again on 14.07.1999, defendant No.3 and his brother-in-law by name Puttu broke open the lock of the schedule premises and deleted the name of the plaintiff in the name board. The defendants colluding each other and with the assistance of their henchmen illegally trespassed into the schedule premises and shifted their manure bags to the schedule premises to create an evidence to show
their possession. When the Office Manager intimated it to the Secretary of the plaintiff-Association, he lodged a complaint before K.M.Doddi Police Station on 14.07.1999. However, the Police did not take any legal action, instead convened 8 to 10 panchayats in the Station to settle the same. When the defendants did not agree for settlement, the Police issued an endorsement on 06.08.1999 stating that it is a rent dispute. Therefore, it is stated that the defendants illegally dispossessed the plaintiff on 14.07.1999 and the defendants deliberately took the possession of the plaintiff without due process of law. This illegal act of the defendants caused damages to the plaintiff physically, mentally and financially. Hence, the plaintiff filed a suit for recovery of possession of the schedule shop premises under Section 6 of the Specific Relief Act, 1963 and also sought for damages.
4.4 The defendants, on appearance, filed their written statement denying the averments made by the plaintiff in the plaint. The deceased defendant No.1, defendant Nos.2 and 3, in their common written statement, have admitted that the suit schedule premises is a shop premises and defendant No.1 was the owner of the schedule premises. The plaintiff, at no point of
time, was a tenant under defendant No.1 and defendant No.1 has not acted as a landlord of the plaintiff. It is further pleaded that there is no relationship of tenant and landlord between the plaintiff and defendant No.1 and the suit was not maintainable. Hence, sought for dismissal of the suit.
trial Judge framed the following issues for consideration:
2. Do it proves, the defendants have illegally dispossessed it on 14-7-99 from the suit premises?
3. Is this suit is maintainable in this form without seeking the relief of declaration?
4. Do it entitled of the possession of the suit premises?
5. What order or relief?"
defendants in order to establish and substantiate their respective cases adduced evidence. The plaintiff examined himself as PW.1 and five other witnesses as PWs.2 to 6 on its behalf and got marked Ex.P1 to Ex.P9, whereas defendant No.3
examined as DW.1 and four other witnesses as DWs.2 to 5 and got marked Ex.D1 to Ex.D5.
4.7 The trial Court after hearing learned counsel for plaintiff as well as learned counsel for defendants, on the basis of the pleadings, material evidence, both oral and documentary dismissed the suit of the plaintiff.
4.8 The plaintiff being aggrieved by the dismissal of the suit, preferred an appeal before the first appellate Court under Order XLI Rule 1 read with Section 96 of Code of Civil Procedure. The first Appellate Court, after service of notice on the defendants and after hearing learned counsel for plaintiff as well as learned counsel for defendants, formulated following points for consideration:
4.9 The first Appellate Court, on re-appreciation and re-analysation of the entire material on record, both oral and documentary, did not find favour with the plaintiff and negatived the points for consideration and dismissed the appeal preferred by the plaintiff and there by confirmed the judgment and decree passed by the trial Court.
4.10 The appellant-plaintiff, being aggrieved by these two concurrent finding, is before this Court in this appeal by invoking the jurisdiction under Section 100 of CPC to consider the substantial question of law and to set-aside the concurrent judgment and decree passed by both Courts.
endorsement, copy of the complaint lodged by the plaintiff and Ex.P6 being the loan application obtained by the plaintiff has also been ignored by both Courts. He further contends that both Courts have also failed to take into consideration the settled possession of the plaintiff over the schedule shop premises and there by both Courts have committed a serious miscarriage of justice in dismissing the suit of the plaintiff.
defendant No.1. On consideration of the materials placed on record, the trial Court did not find favour with the plaintiff and accordingly, for having not proved the issues raised therein, dismissed the suit of the plaintiff, so also, on re-appreciation of the material evidence placed on record, both oral and documentary, the first Appellate Court re-considered the same and did not again find favour with the plaintiff for having not established its lawful possession over the schedule shop premises and negatived the points and dismissed the appeal and there by confirmed the judgment and decree passed by the trial Court.
over the schedule shop premises, on the basis of it being a tenant under defendant No.1, it becomes the duty of the plaintiff to establish the fact that it was a tenant, secondly, it was in lawful possession and settled possession over the schedule shop premises. These two aspects of the matter have been negatived by the trial Court as well as the first Appellate Court with the factual aspects decided by both Courts.
NC: 2023:KHC:33306 RSA No. 2734 of 2011
this Court. Time and again, this Court has laid down the law under Section 100 of CPC that this Court cannot venture into adverting to the factual aspects of the matter, which ought to have been deliberated by the first Appellate Court, which is the last Court to decide the factual aspects. When both trial Court and the first Appellate Court have already decided the matter by concurrent finding of fact, in the second appeal, in normal circumstances, this Court would not be inclined to interfere with the question of fact already decided by both Courts concurrently. Both Courts have come to a conclusion that the plaintiff has failed to produce the material documents or to prove the fact that he was a tenant. When no material has been placed before the Court to show that he was a tenant and defendant was a landlord, so also, the possession of the plaintiff over the schedule shop premises has not been established, the question of considering this appeal for framing the substantial question of law is not being made out by the plaintiff. No doubt, it is true that in the second appeal, if the documentary evidence placed on record by the parties has not been considered and the same has been apparently ignored by
both Courts, this Court taking into consideration of the same, can exercise the powers, but i.e. not case on hand.
ORDER
The appeal is dismissed , at the stage of admission itself,
as no substantial question of law is made out to be considered.
Ordered accordingly.
Sd/JUDGE
LB
2 issues framed by the court
Whether substantial question of law is made out to set aside the concurrent findings of trial and first appellate courts regarding tenancy and dispossessing.
Whether the apprehension of grave andamp;amp;amp;c; question of law under Section 100 of CPC is established to interfere with the dismissal of the suit.
1 provisions across 1 enactments
Jeevan Khadi Gramodyoga Association
Venkatesha
Pradeep Singh Yerur
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
