Dismissed

Smt. B E Sumathi Dead by Lrs v. J S S Mahavidyapeeta

Karnataka HC23 Mar 2023RSA/727/2020

Case brief

AI extract

What is this about?

In this second appeal under Section 100 of the CPC concerning property possession, the High Court dismissed the challenge against the lower courts' judgment declaring the plaintiff institution the owner of the suit property and directing the former tenant to hand over possession. The Court held that since the appellant failed to lead evidence to substantiate her claim of illegal amalgamation, no e

What the court decided

AI extract

Smt. B E Sumathi Dead by Lrs Vs J S S Mahavidyapeeta — Property and Title | Karnataka HC (2023)

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RSA No. 727 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF MARCH, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO.727 OF 2020 (DEC)

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BETWEEN:

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SMT. B E SUMATHI, DEAD BY LRS P.T.CHANDRASHEKAR S/O LATE THIMMARAYAPPA AGED ABOUT 82 YEARS R/AT ANANTHASHRAMA COMPOUND OLD SBM ROAD, NEHRU EXTENSION MALUR TOWN-563130.

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…APPELLANT

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(BY SRI A MADHUSUDHANA RAO, ADVOCATE)

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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AND :

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J S S MAHAVIDYAPEETA BY ITS EXECUTIVE OFFICER SRI BHADRAPPA S/O KULLAPPA, TEACHER MAJOR, MALUR TOWN-563130.

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…RESPONDENT

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THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 22.08.2019

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RSA No. 727 of 2020

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PASSED IN R.A.NO.46/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MALUR AND ETC.

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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

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This matter is listed for admission. Heard the learned counsel appearing for appellant.

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This appeal is filed challenging the judgment

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and decree dated 22.08.2019 passed in R.A.No.46/2011 on the file of the Senior Civil Judge and JMFC, Malur.

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The factual matrix of the case of the plaintiff

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before the Trial Court is that the plaintiff institution is the lawful owner of the suit schedule property. It is contended that one V.S.V. Shetty founded Anathasevashrama in Malur in the year 1956 and he was the founder Secretary. The Gayathri Shishuvihara was running by said V.S.V Shetty. It was part and parcel of the said Anathasevashrama. The defendant was appointed as a

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RSA No. 727 of 2020

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teacher in the Shishuvihara by V.S.V. Shetty. The said V.S.V. Shetty has given the suit schedule property to the defendant for residence on the basis of monthly rent of Rs.200/-. V.S.V. Shetty for his difficulties to run the said Ashrama, asked the plaintiff institution to take over the said Ashrama. Accordingly, the plaintiff institution take over the said Ashrama and subsequently, the Anathasevashrama lawfully merged with the plaintiff institution in the year 1998. After the said amalgamation, the property of said Anathasevashrama including the suit schedule property merged with the plaintiff institution and the plaintiff institution became the owner of the suit schedule property. The defendant retired from the service. After retirement, the defendant ought to have handed over the possession of the suit schedule property to the plaintiff but the defendant did not done the same and also not paying the rent. Hence, the filed the suit.

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In pursuance of the suit summons, the defendant appeared and filed the written statement

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RSA No. 727 of 2020

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contending that the alleged amalgamation is illegal and the validity of the said amalgamation is in question in O.S.No.100/2000 and the said suit is pending. The question involved in this suit and the suit in O.S.No.100/2000 are one and the same hence, this suit is to be stayed. At the time of amalgamation, the fraud has been played. The V.S.V. Shetty, the original founder of the plaintiff institution executed a Will in favour of the legal representative B.V.Manjula but she has made as a parity to the suit. The defendant is paying the rent to the said Manjula and prayed to dismiss the suit.

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Based on the pleadings of the parties, the Trial Court framed the issues and permitted the parties to lead their evidence. The Executive Secretary of the plaintiff institution got examined as PW1 and got marked the documents at Ex.P1 to P8. Though the defendant filed the written statement, did not step into the witness box. The Trial Court after considering both oral and documentary evidence placed on record decreed the suit in favour of

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RSA No. 727 of 2020

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plaintiff and declared that the plaintiff institution is the owner of the suit schedule property and directed the defendant to handover the possession of the suit schedule property to the plaintiff within three months. Being aggrieved by the judgment and decree of the Trial Court, an appeal was filed before the First Appellate Court and the First Appellate Court also on perusal of the grounds urged in the appeal memo formulated the point that whether the appellant has made out sufficient grounds to remand the present case on hand by giving an opportunity to her to lead evidence and cross examined the plaintiff’s

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side witness. The First Appellate Court also on reappreciation of both oral and documentary evidence placed on record comes to the conclusion that the appellant has not made out any case and answered the point as negative and dismissed the appeal. Hence, the present appeal is filed before this Court.

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6. The main contention of the counsel for the

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appellant that no opportunity was given to cross-examine

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RSA No. 727 of 2020

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PW1 and PW1 had no personal knowledge about the proceedings relating to the alleged amalgamation of Anathasevashrama with the respondent trust. The counsel also vehemently contend that both the Courts have committed an error in coming to the conclusion that Ex.P1 is a document under which the respondent institution has become the owner of the suit schedule property especially when the same is not a registered document. Hence, it requires interference.

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Having heard the counsel for the appellant and

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also on perusal of the material available on record, no doubt, the appellant has filed the written statement before the Trial Court disputing the very amalgamation. The Trial Court has also framed the Issue No.2 that whether the said amalgamation is illegal. In order to prove the said contention, the appellant has not led any evidence. It is the specific case of the plaintiff that the plaintiff is the absolute owner of the property and this appellant was the tenant and no doubt, the other suit is also filed in

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RSA No. 727 of 2020

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O.S.No.100/2000. It is contended that the issue involved in O.S.No.100/2000 and in the present suit is one and the same. The appellant has not led any evidence before the Court and not given any sufficient reasons for nonappearance and not leading of evidence, even First Appellate Court also discussed the same in the appeal in paragraphs 17 and 18 and also relied upon the copies of the resolution and the judgment in O.S.No.100/2000 and the status of the appellant is a tenant in respect of the premises. Both the Courts have given the concurrent finding that the plaintiff is the absolute owner of the suit schedule property and also the appellant is a tenant in respect of the premises in which she is in occupation. When the appellant has not led any evidence to substantiate her contention, I do not find any error committed by the Trial Court as well as the First Appellate Court in directing the appellant to vacate and handover the vacant possession of the suit schedule property to the plaintiff and it is also the case of the plaintiff that even after the retirement of the appellant, she did not vacate

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RSA No. 727 of 2020

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the premises. Hence, I do not find any grounds to admit the appeal and to frame the substantial question of law invoking Section 100 of CPC.

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In view of the discussions made above, I pass

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the following:

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ORDER

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The appeal is dismissed.

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In view of dismissal of the main appeal,

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I.A.s if any, do not survive for consideration

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and the same stand disposed of.

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Sd/JUDGE

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Smt. B E Sumathi Dead by Lrs v. J S S Mahavidyapeeta

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Smt. B E Sumathi Dead by Lrs v. J S S Mahavidyapeeta

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