Suit for possession of a non-agricultural property based on title derived through partition decree and monthly tenancy. Land Tribunal had earlier rejected defendant No.1's occupancy claim. Courts below decreed possession and mesne profits; the second appeal was dismissed with concurrent findings confirmed.
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.
NC: 2024:KHC:32723 RSA No. 331 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 331 OF 2013 (DEC)
BETWEEN:
SRI AMIRUDDIN S/O SHAN SAHEB, AGED 54 YEARS, R/NEAR OLD BRIDGE, LAILA VILLAGE & POST, BELTHANGADY TQ., D.K. - 572 414
…APPELLANT
(BY SRI. N SUKUMAR JAIN, ADVOCATE)
Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA
AND:
ALL ARE CHILDREN OF S/O LATE MAHAMMED HUSSAIN R/AT RATHNAGIRI ROAD,
NC: 2024:KHC:32723 RSA No. 331 of 2013
CHIKKAMAGALUR TOWN P.O. CHIKKAMAGALUR CHIKKAMAGALUR DIST. - 577 101
….RESPONDENTS
(BY SRI. MOHAN K.N., ADVOCATE FOR R2 & R4 R3 SERVED)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 26.11.12 PASSED IN R.A.NO.10/2003 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, BELTHANGADY, D.K. DISMISSING THE APPEAL WITH SLIGHT MODIFICATION FILED AGAINST THE JUDGEMENT AND DECREE DTD 20.12.2002 PASSED IN OS.NO.208/1992 ON THE FILE OF CIVIL JUDGE (JR.DN.) AND JMFC, BELTHANGADY, D.K. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This regular second appeal is filed by the appellant challenging the judgment and decree dated 26.11.2012, passed in R.A.No.10/2003 by the learned Senior Civil Judge & JMFC, Belthangady, D.K., and the judgment and decree dated 20.12.2002, passed in O.S.No.208/1992 by the learned Civil Judge (Jr.Dn.) & JMFC, Beltahangady, D.K.
referred to as per their ranking before the trial Court. The appellant is defendant No.2; and respondents are the plaintiffs. The plaintiffs filed a suit for possession against the defendants.
It is the case of the plaintiffs that the suit schedule 'A' property is the non-agricultural property. The said property along with other properties were allotted to the share of the plaintiffs and their mother Fathimunnisa in O.S.No.49/1975 on the file of the Civil Judge, Puttur and the possession was delivered to them in Exe.Case No.31/1980 on 02.06.1980. The mother of the plaintiffs' died. Therefore, the plaintiffs' became the absolute owners of suit schedule 'A' property. It is contended that, the plaintiffs and their mother let out 'A' schedule property to defendant No.1 on a monthly rent. The building was constructed by defendant No.1 and the rent payable was
NC: 2024:KHC:32723 RSA No. 331 of 2013
Rs.40/- per month. The tenancy was a monthly tenancy and it was oral. The plaintiffs requested defendant No.1 to pay the rent or to vacant the property of the site after removing the super structure. Defendant No.1 had dragged on the matter on one or the other pretext. The defendants are residing in 'A' schedule property. Subsequently, defendant No.2 set up a separate household in the same building and began to reside separately. Defendant No.2 has ousted defendant No.1 from the house and defendant No.2 is in exclusive possession of 'A' schedule property. Defendant No.2 has no right whatsoever in the 'A' schedule property. The plaintiffs got issued a legal notice to the defendants on 14.06.1987 terminating the tenancy of defendant No.1. It is stated that they have been claimed the 'A' schedule property under an agreement to sale entered into between the plaintiffs and their mother Fathimunnisa with defendant No.2 on 27.11.1985 and denied the tenancy and defendant No.2 is claiming right under the agreement. It is contended that defendant No.2 has not taken any
steps to enforce the agreement dated 27.11.1985 within the statutory period and therefore, the defendants have lost their right under the agreement by limitation. Hence, prayed to decree the suit.
extinguished with effect from 01.03.1974 over the plaint 'A' schedule property. It is contended that defendant No.1
is not a tenant and is not liable to pay the rent. It is admitted that the plaintiffs got issued a legal notice to the defendants and the defendants have replied to the legal notice. It is contended that there is no such agreement as alleged by the plaintiffs in the plaint. Hence, prayed to dismiss the suit.
pleadings, framed the issues.
NC: 2024:KHC:32723 RSA No. 331 of 2013
within two months from the date of judgment and directed to pay the future mesne profits of Rs.40/- per month from the date of suit till handing over the vacant possession of 'A' schedule property to the plaintiffs.
7. Defendant No.2 aggrieved by the judgment and decree passed in the above said suit, filed an appeal in R.A.No.10/2003 on the file of Senior Civil Judge and JMFC, Belthangady, D.K. The First Appellate Court, after hearing the parties, has framed the points for consideration.
NC: 2024:KHC:32723 RSA No. 331 of 2013
succeeded to the suit schedule properties in a decree passed in O.S.No.49/1975 and the plaintiffs have taken possession by due process of law in Exe.Case.No.31/1980. Defendant No.1 requested the plaintiffs and their mother to let out suit 'A' schedule property, i.e., open site on a monthly tenancy. Accordingly, the plaintiffs and their mother agreed to let out the open site with a condition that the building was constructed by defendant No.1 on the open site and defendant No.1 shall pay the rent of Rs.40/- per month as a rent. Defendant No.1 failed to pay the agreed rent. The plaintiffs approached defendant No.1 several times, requesting him to pay rent and vacate the site after removing the superstructure. Defendant Nos.1 and 2 were residing together in the suit house. Thereafter, defendant No.2 ousted defendant No.1 from the house. The plaintiffs have also produced the records to establish that the plaintiffs have acquired the title by virtue of Ex.P1 to Ex.P3.
averments in the examination-in-chief and he has produced the certified copy of the Land Tribunal order, which discloses that the occupancy right was granted in favour of defendant No.1, Ex.D2 is the house tax receipt, which discloses that defendant No.1 constructed a house on paying tax, Ex.D3 is the assessment receipt and Ex.D4 is the certificate issued by the Village Accountant. During the course of cross-examination, DW.1 has clearly admitted that, initially, the Land Tribunal granted occupancy rights in favour of defendant No.1 and the plaintiffs challenged the order of the Tribunal before the High Court and the High Court remanded the matter to the Land Tribunal. After remand, the Land Tribunal has passed an order rejecting the claim of defendant No.1 for grant of occupancy right in respect of the suit schedule properties and other properties. Further, the plaintiffs have produced the order passed by the Land Tribunal, which was marked as Ex.P8. From the perusal of Ex.P8, the Land Tribunal
rejected the claim of defendant No.1 for grant of occupancy rights. Defendant No.1 has not challenged the order of the Land Tribunal. The said order has attended the finality. Defendant No.2 has not produced any records to show that, how defendant No.2 came in possession of the suit schedule property, then the plaintiffs have proved
that earlier the said property was let out to defendant No.1 and thereafter, defendant No.2 has ousted defendant No.1 from the house and defendant No.2 is in exclusive possession of 'A' schedule property. Further, the trial Court considers Ex.P5, wherein the names of the plaintiffs are
shown as owners of the suit schedule property. The said agreement came to be executed between the plaintiffs and defendant No.2 on 27.11.1985. Defendant No.2 has denied the execution of Ex.P5. The plaintiffs, by producing Ex.P1 and Ex.P2, have proved that they are the owners of the suit schedule property and they established their title over the suit schedule property. However, the defendant has not pleaded in regard to the adverse possession. It is a well-established principle of law that once the title is
established, unless the defendants proved the adverse possession, the plaintiffs cannot be non-suited. The trial Court on the assessment of the oral and documentary evidence, has rightly decreed the suit of the plaintiffs. The first Appellate Court on re-assessment of the oral and documentary evidence, has rightly dismissed the appeal. I do not find any substantial question of law that arises for my consideration in this appeal.
ORDER
The appeal is dismissed.
The judgments and decrees passed by the Courts below are hereby confirmed.
No order as to the costs.
Sd/- (ASHOK S. KINAGI) JUDGE
ssb
2 issues framed by the court
Whether the plaintiffs proved their title to suit schedule 'A' property and entitlement to possession from defendant No.2?
Whether any substantial question of law arose for consideration in the second appeal?
1 provisions across 1 enactments
Sri Amiruddin S/o Shan Saheb
Sri Mohammad Ali
Sri Mahammed Yusuf
Sarambi
Hajrabi
Ashok S. Kinagi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
