Disposed

Isamma v. B. Madhava Acharya

Karnataka HC5 Feb 2024RSA/2007/2023

Case brief

AI extract

What is this about?

The High Court disposed of a regular second appeal relating to possession of a residential property. After hearing counsel, the court granted the appellants an extended period until December 2024 to vacate the premises instead of the earlier decree period.

What did the court decide?

Time granted to appellants until end of December 2024 to vacate; directed to file affidavit undertaking to hand over possession within two weeks.

Isamma Vs B. Madhava Acharya — Partition | Karnataka HC (2024)

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NC: 2024:KHC:4911 RSA No. 2007 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 2007 OF 2023 (POS)

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BETWEEN:

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ISAMMA

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AGED ABOUT 66 YEARS

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AVVAMMA AGED ABOUT 53 YEARS

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MUMTAZ AGED ABOUT 51 YEARS

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UMAR ASHIF AGED ABOUT 45 YEARS

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KAIRUNNISA

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AGED ABOUT 43 YEARS

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Digitally signed by SUMA B N Location: High Court of Karnataka

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NOORZAHAN AGED ABOUT 38 YEARS

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AKBAR ALI AGED ABOUT 36 YEARS

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ALL ARE LEGAL HEIRS O LATE DEFENDANT IBRAYEE BEARY, S/O IDDINE BEARY, R/AT AJJAMKODI, NAVOOR VILLAGE AND POST, BANTWAL TALUK, DAKSHINA KANNADA -574 211.

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…APPELLANTS

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(BY SRI. IJARI NAGARAJA., ADVOCATE)

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2 - NC: 2024:KHC:4911 RSA No. 2007 of 2023

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AND:

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B. MADHAVA ACHARYA AGED ABOUT 61 YEARS,

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B KESHAVA ACHARYA AGED ABOUT 59 YEARS,

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B MOHAN KUMAR AGED ABOUT 57 YEARS,

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B UMESH ACHARYA AGED ABOUT 52 YEARS,

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ALL ARE CHILDREN OF BALAKRISNA ACHARYA, R/AT AJJIAMKODI, NAVOOR VILLAGE AND POST, BANTWAL TALUK, DAKSHINA KANNADA DISTRICT - 574 211.

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…RESPONDENTS

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(BY SRI. G. RAVISHANKAR SHASTRY, ADVOCATE)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 3.10.2023 PASSED IN RA NO.21/2022 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND JMFC AT BANTWAL,. DAKSHINA KANNADA., DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 21.09.2021 PASSED IN O.S. NO.227/2012 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC., BANTWAL.

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

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NC: 2024:KHC:4911 RSA No. 2007 of 2023

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JUDGMENT

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This appeal is by the appellants aggrieved by the judgment and decree dated 21.09.2021 passed in O.S.No.227/2012 on the file of the Principal Civil Judge & JMFC, Bantwal, Dakshina Kannada, (hereinafter referred to as 'Trial Court' for short) by which while decreeing the suit defendant was directed to hand over vacant possession of the suit 'A' schedule property to the plaintiffs within a period of three months and also directed to pay the plaintiffs a sum of Rs.2,187/- towards costs of the suit which judgment and decree is confirmed by the judgment and order dated 03.10.2023 passed in R.A.No.21/2022 on the file of the Senior Civil Judge and JMFC, Bantwal, Dakshina Kannada (hereinafter referred to as 'First Appellate Court' for short).

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The above suit was filed by the

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respondents/plaintiffs against the original defendant seeking possession of the suit 'A' schedule property

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4 - NC: 2024:KHC:4911 RSA No. 2007 of 2023

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contending that defendant was a monthly tenant under the father of the plaintiffs in respect of suit schedule property on a payment of monthly rent of Rs.2/-. That there was a rental agreement executed by the defendant on 10.01.1974. That the defendant had agreed to surrender possession of the property by 31.12.1976. However, defendant had taken hostile attitude against the plaintiffs and he was in arrears of rentals for more than three years. That the defendant also attempted to encroached upon the surrounding lands belonging to the father of the plaintiffs which constrained him to file a suit in O.S.No.54/1985. The father of the plaintiffs died on 06.05.2012 and during his lifetime he had executed Settlement Deed in respect of the suit schedule property allotting the shares in the schedule property to the plaintiffs 1 to 4. Plaintiff No.1 thereafter issued a notice dated 31.12.1992 terminating the tenancy of the defendant effective from the end of January 1993 which was responded by the defendant by issuance of a untenable reply on 12.06.1993. That plaintiffs had filed a suit in O.S.No.307/1993 which was

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5 - NC: 2024:KHC:4911 RSA No. 2007 of 2023

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dismissed on 27.02.2008 with a liberty to file fresh suit on the same cause of action as the defendant had made a claim in respect of the schedule property before the Land Tribunal. That upon the disposal of the matter before the Land Tribunal which was confirmed by this Court in W.P.No.29176/2010 the defendants filed the present appeal.

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3. Considering the contention urged by the parties

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and the evidence led thereon the Trial Court decreed the suit directing the defendants to vacate and hand over the vacant schedule 'A' property to the plaintiffs within three months. Original defendant passed away during pendency

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of the suit and legal representatives of original defendant were brought on record and they preferred an appeal in R.A.No.21/2022. On re-appreciation of the evidence the First Appellate Court dismissed the appeal confirming the judgment and decree passed by the Trial Court. Being aggrieved by the same, legal representatives of the original defendant are before this Court.

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NC: 2024:KHC:4911 RSA No. 2007 of 2023

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Head. Perused the records and the matter was

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taken up for final hearing.

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Learned counsel for the appellants on

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29.01.2024 after arguing the matter for sometime and since no substantial question of law is involved in the matter for consideration had sought for a week's accommodation to seek instructions from

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appellants/defendants with regard to time required by them to vacate and hand over premises as directed by the trial Court. Today, Sri. Ijari Nagaraja, learned counsel appearing for the appellants on instructions submits that the appellants be granted time for a period of 10 months enabling them to vacate the premises.

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Sri.R.Ravishankar Shastry, learned counsel for

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the respondents vehemently opposes the same. He submits that respondents/plaintiffs have been attempting to recover the possession from the appellants/defendants for over three decades and for one or the other reason

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NC: 2024:KHC:4911 RSA No. 2007 of 2023

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same is getting postponed. Therefore he submits that appellants/defendants have no locus standi to ask for any further time.

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Be that as it is. Since the property is a

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residential property this Court is of the considered view that appellants be granted time till end of December, 2024. However making it clear that appellants shall file an affidavit within two weeks from the date of the disposal of the appeal undertaking to vacate and hand over suit 'A' schedule property to the respondents.

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With the above observation the appeal is

disposed of.

Sd/JUDGE

List No.: 2 Sl No.: 29

Isamma v. B. Madhava Acharya

Case brief

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Isamma v. B. Madhava Acharya

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