Allowed

Mr. Suresh Kamath v. Mr. Velarian Montherio

Karnataka HC10 Apr 2024RSA/378/2021

Case brief

AI extract

What is this about?

Second appeal by defendant against injunction protecting plaintiffs' possession after occupancy-rights claim rejected up to Apex Court. Plaintiffs later withdrew a similar suit confirming defendant's possession. Court answered substantial questions in favour of defendant, set aside First Appellate Court decree and restored Trial Court's dismissal.

What did the court decide?

Judgment and Decree dated 24.02.2021 passed by the First Appellate Court set aside; Judgment and Decree dated 08.11.2019 passed by the Trial Court dismissing the suit confirmed.

Mr. Suresh Kamath Vs Mr. Velarian Montherio — Landlord and Tenant | Karnataka HC (2024)

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NC: 2024:KHC:14878 RSA No. 378 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF APRIL, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 378 OF 2021 (INJ)

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BETWEEN:

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MR. SURESH KAMATH S/O LATE VASUDEV KAMATH AGED ABOUT 77 YEARS R/A DWARAKA, D.NO.7/2-153 MATADAKANI, 2ND CROSS ROAD MANGALURU-575 006, DK.

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…APPELLANT

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(BY SRI. Y RAJENDRA PRASAD SHETTY.,ADVOCATE)

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AND:

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

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MR. VELARIAN MONTHERIO S/O LATE MARY MONTHERIO AGED ABOUT 45 YEARS

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MR ALPHONS MONTHERIO S/O LATE MARY MONTHERIO AGED ABOUT 68 YEARS

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MR JOHN MONTHERIO S/O LAWRENCE HILLARY MONTHERIO AGED ABOUT 77 YEARS

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MR SYMON MONTHERIO S/O ANTHONY MONTHERIO AGED ABOUT 59 YEARS

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NC: 2024:KHC:14878 RSA No. 378 of 2021

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MRS. BRIDJITH MONTHERIO S/O VICTOR MONTHERIO AGED ABOUT 56 YEARS

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MR JOHN D MONTHERIO S/O CASHMIR MONTHERIO AGED ABOUT 72 YEARS

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MR BERNARD MONTHERIO S/O MARCELINE MONTHERIO AGED ABOUT 74 YEARS

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MR MELVIN PINTO S/O JOKIM PINTO AGED ABOUT 44 YEARS

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ALL ARE R/AT NEKKERE HOUSE KUDUPU VILLAGE MANGALURU TALUK-575 005 (DK)

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…RESPONDENTS

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(BY SRI. SHIVARAMA BHAT O.,ADVOCATE)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:24.02.2021 PASSED IN RA.No.20/2020 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU, D.K. ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED:08.11.2019 PASSED IN OS.No1274/2015 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE, MANGALURU, D.K.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE

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COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the defendants aggrieved by the judgment and decree dated 24.02.2021 passed in R.A.No.20/2020 on the file of II Additional Senior Civil Judge and C.J.M, Mangaluru (hereinafter 'the First Appellate Court') by which the First Appellate Court while allowing the appeal filed by the respondent herein had set aside the judgment and decree dated 08.11.2019 passed in O.S.No.1274/2015 on the file of I Additional Civil Judge, Mangaluru (hereinafter 'the Trial Court').

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The above suit in O.Sy.No.1274/2015 is filed by the plaintiff/respondent herein against defendants/appellants herein for relief of permanent injunction restraining defendants or forcefully dispossessing the plaintiffs from the plaint schedule properties without due process of law or in any manner interfering with the settled possession and right of plaintiffs over plaint schedule properties. The suit schedule properties are consisting of following seven items:

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I. Item No.1 Description of the properties of the plaintiffs No.1 & 2 Immovable property survey No. 98, Kissam Wet to the extent of 0.80 cent (as per RTC 98-P1)situated at Kudupu Village, Mangaluru Taluk, within Mangaluru City

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Corporation comprised of paddy fields, coconut areca nut garden, cashew trees, jack fruit trees, mango trees and other fruit bearing trees, well etc., including residential house bearing D.No.94/2 and bounded on North by remaining portion of same S.No belonging to 5th plaintiff, South by remaining portion of same S.No belonging to 6th plaintiff & Inas Monteiro, East by Remaining portion of same S.No belonging to Deoga D'Silva, West by Survey Line;

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II. Item No.2 Description of the properties of the plaintiff No.3 Immovable property survey No. 98, Kissam Wet to the extent of 3.7% cent (as per RTC 98-P1)situated at Kudupu Village, Mangaluru Taluk, within Mangaluru City Corporation comprising of paddy fields, coconut areca nut garden, cashew trees, jackfruit trees, mango trees and other fruit bearing trees, well etc., and bounded on North by Remaining portion of same S.No belonging to 6th plaintiff; South by Survey Line & Road, East by Remaining portion of same S.No belonging to 4th plaintiff. West by Remaining portion of same S.No belonging to 6th plaintiff;

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III. Item No.3 Description of the properties of the plaintiff No.4 Immovable property survey No. 98, Kissam Wet to the extent of 0.78 cent (as per RTC 98-P1)situated at Kudupu Village, Mangaluru Taluk. within Mangaluru City Corporation comprised of paddy fields, coconut areca nut garden, cashew trees, jackfruit trees, mango trees and other fruit bearing trees, well etc., and bounded on North by Remaining portion of same S.No belonging to Deoga D'Silva & Plaintiffs No.1 & 2 South by Remaining portion of same Sy. No belonging to Lancelot Albert, East by Remaining portion of same Sy. No belonging to Lancelot Albert, West by Remaining portion of same Sy.No belonging to 3 plaintiff;

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IV. Item No.4 Description of the properties of the plaintiff No.5 Immovable property survey No. 98, Kissam Wet to the extent of 1 acre 40 cents and another to the extent of 1.00 acre totally measuring 2 acre 40 cents (as per RTC 98-P1)situated at Kudupu Village, Mangaluru paluk. within Mangaluru City Corporation comprised of paddy fields. coconut areca nut garden, cashew trees, jackfruit trees, mango trees and other fruit bearing trees, well etc., and bounded on North and East by survey Line, South by Survey Line & Road and West by Remaining portion of

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same Sy.No. belonging to 7th plaintiff and boundaries of ITEM NO.4(B) on the North and west by Survey Line, South by Remaining portion of same Sy.No. Belonging to 7th plaintiff and East by remaining portion of same Sy.No. Belonging to 8th plaintiff:

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V. Item No.5 Description of the properties of the plaintiff No.6 Immovable property survey No. 98, Kissam Wet to the extent of 2 acre 44 cents (as per RTC 98-P1) situated at Kudupu Village, Mangaluru Jaluk, within Mangaluru City Corporation & comprised of paddy fields. Coconut areca nut garden, cashew trees, jackfruit trees, mango trees and other fruit bearing trees, well etc., and bounded on North by Remaining portion of same Sy.No. belonging to 7th plaintiff, South by Survey Line & Road, East by Remaining portion of same Sy.No. belonging to 3rd plaintiff and west by remaining portion of same Sy.No. Belonging to Inas Monteiro

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VI. Item No.6 Description of the properties of the plaintiff No.7 Immovable property survey No. 98. Kissam Wet to the extent 0.94 cents (as per RTC 98-P1) situated at Kudupu Village, Mangaluru Taluk, within Mangaluru City Corporation comprised of paddy fields coconut areca nut garden, cashew trees, jackfruit trees, mango trees and other fruit bearing trees, well etc., and bounded on the North by Survey Line, South: Survey Line & Road, East by Remaining portion of same Sy.No. belonging to 4 plaintiff. West by remaining portion of same Sy.No. belonging to 8 plaintiff; and

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VII. Item No.7 Description of the properties of the plaintiff No.8 Immovable property survey No. 98, Kissam Wet to the extent of 2 açres 08 cents as per RTC 98-P1) situated at Kudupu Village, Mangaluru Taluk, within Mangaluru City Corporation comprised of paddy fields. coconut areca nut garden, cashew trees, jackfruit trees, mango trees and other fruit bearing trees, well etc., and bounded on the North Survey Line, South by Survey Line & Road. East by Remaining portio of same Sy.No. belonging to 7th plaintiff and West by Remaining portion of same Survey number belongs to Deoga D'Silva & 4th plaintiff.

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It is the case of the plaintiff that;

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NC: 2024:KHC:14878 RSA No. 378 of 2021

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(a). Plaintiffs are in possession of item Nos.1 to 7 of the suit properties on term lease for agricultural purposes from its erstwhile owner Sri.Vasudev Kamath, who is the father of the defendant herein.

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(b). That the name of predecessors-in-title of plaintiffs was entered in the RTC in the year 1968-69 as they were cultivating the lands. The predecessors in title of plaintiffs had filed an application under Form No.7 seeking grant of occupancy rights

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rights under Section 45 of the Karnataka Land Reforms Act, 1961, which had been granted in favour of predecessors in title of plaintiffs by the Land Tribunal.

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(c). The said Order of the Land Tribunal was set aside by this Court upon challenge made by the father of the defendant and the matter was remanded for fresh consideration before the Land Tribunal. Subsequent to the remand the Land Tribunal rejected the said application filed by the predecessors in title of plaintiffs by order dated 21.12.2012, which was challenged by filing writ petition in W.P.Nos.6806/2013 and 6815/2013. This Court dismissed the said Writ petitions on the premise that the suit properties were punja lands (Dry Land)

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and were not capable of cultivation. As such the plaintiffs were not entitled for conferment of occupancy rights. The said order was carried in Writ Appeal in W.A.Nos.4352/2013, 435659/2013 and 180-181/2015 by Order dated 20.01.2015 the said writ appeals were dismissed confirming the Orders passed in the Writ Petitions. The said Order was further carried to the Apex Court and it also resulted in rejection confirming the Orders passed in the Writ Petitions. Thus the Orders passed by the Tribunal, confirmed by this Court had attained finality.

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(d). It is further contended that the Tribunal rejected the claim of the predecessors of plaintiffs, based on the spot inspection report dated 05.11.2012. Despite the plaintiffs were in physical possession of suit properties as on 01.03.1974 and the rights of plaintiffs to continue to be in possession of the suit properties, which can be taken only by the State Government by a due process of law in terms of applicable law. Thus, since the defendant had interfered with possession of the plaintiffs, plaintiffs were constrained to file the suit.

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The defendant in his written statement admitted the proceedings of occupancy rights before the Land Tribunal,

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passing of the Orders by this Court and the Order of the Apex Court. It is however contended that the plaintiffs have never been in possession of the suit properties and it is defendant who has been in a exclusive possession of the property even as found by the Tribunal during the alleged spot inspection. As such sought for dismissal of the suit.

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Based on the pleadings, the Trial Court framed the following issues for its consideration:

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"1. Whether the plaintiffs prove that, they are in possession of the suit schedule property?

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2. Whether the plaintiffs prove that, the defendants are illegally trying to dispossess the plaintiffs from suit property?

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3. Whether the plaintiffs prove that, they are entitled for the relief of Permanent Prohibitory Injunction as sought in the plaint?

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4. Whether the suit is maintainable?

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5. To What Order or decree the parties are entitled to?"

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The plaintiff No.8 examined himself as PW1 and exhibited 67 documents marked as Ex.P1 to Ex.P67. In order to prove his defence, defendant examined himself as DW1. and exhibited 10 documents marked as Ex.D1 to Ex.D10. The Trial Court on appreciation of the evidence came to conclusion that the Land Tribunal at the time of the spot inspection has found that an extent of 15.69.50 acres of land in Sy.No.98/1P was

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with the defendant, duly evidenced with the records, came to the conclusion that claim of the plaintiffs that they being in possession was not reliable. As such, dismissed the suit.

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Being aggrieved by the aforesaid judgment and decree, expect plaintiff No.6 other plaintiffs filed appeal in R.A.No.20/2020 before the First Appellate Court. Considering the grounds urged the First Appellate Court framed the following points for its consideration:

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"1. Whether the plaintiffs prove that, they are in possession of the suit schedule property as on the date of the filing of the suit and the defendants are illegally trying to dispossess the plaintiffs from suit property?

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2. Whether the impugned judgment of the trial court is against law, fact, evidence and probabilities of the case and liable to be intervened by this court?

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3. What order or decree?"

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On re-appreciation of the evidences, the First Appellate

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Court found that the plaintiffs were in settled possession of the property and that the rejection of the Form No.7 before the Tribunal would not take away their case of they being in settled

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possession of property, accordingly allowed the appeal, restraining the defendant from dispossessing the plaintiffs with

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a due process of law. Being aggrieved by the same defendant/appellant is before this Court.

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This Court by Order dated 17.04.2021 had admitted

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this appeal for considering the following substantial question of law:

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"i. Whether the First Appellate Court committed an error in considering the plaintiff as a chalageni tenant and protecting him against forcible dispossession, notwithstanding the fact that the claim of the plaintiff for occupancy rights in respect of the suit property was rejected and confirmed by the Apex Court?

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ii. Whether the First Appellate Court committed an error in not noticing the fact that the suit in the present form was not maintainable, in view of Section 132 of the Karnataka Land Reforms Act, 1961?"

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It is necessary to note that appeal as against respondent Nos.1, 3, 5 and 6 has been abated as no steps has been taken.

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Sri.Rajendra Prasad Shetty, learned counsel for the appellant reiterating the grounds urged in the memorandum of the appeal submitted that;

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(a). The claim of the plaintiffs of they being the tenants in respect of the suit schedule properties has been declined and rejected by the Tribunal and said Order though was challenged

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NC: 2024:KHC:14878 RSA No. 378 of 2021

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before this Court by filing writ petitions was also negated, which Order has been confirmed by the Apex Court. Thus he submits that the claim of the plaintiffs can not be considered, as the same has already been rejected by all the forums. He further submits that during the consideration of the said application by the Land Tribunal, a spot inspection was conducted, in which it was categorically found that the defendant has been in possession and enjoyment of the property measuring 15.69.50 acres of land in Sy.No.98/1P and that plaintiffs have not been in possession of the property. He further submits that after filing of the present appeal by the defendant, the plaintiff had initiated yet another suit in O.S.No.260/2022 seeking similar relief before the III Additional Civil Judge (Jr.Dn), Mangaluru.

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(b). That by filing a memo dated 15.12.2023, the plaintiffs have withdrawn the said suit in which they have also stated that they would not press their claim in the earlier suit in O.S.No.1274/2015 (subject matter of this appeal). Thus he submits that the plaintiffs have not been in possession of the suit properties and the First Appellate Court without appreciating this aspect of the matter erred in restraining the

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NC: 2024:KHC:14878 RSA No. 378 of 2021

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appellant from dispossessing the plaintiff without due process of law and the said judgment and decree is inconsequential in view of the factual position of the matter.

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(c). He further submits that even if the plaintiffs claim to be in possession of the suit properties as tenants, said issue requires to be considered by the Tribunal and the Civil Court has no discretionary jurisdiction in view of the provision of Section 132(1) of the Karnataka Land Reforms Act. Thus he submits that substantial question of law needs to be answered in favour of defendant.

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Per contra, Sri.Shivaram Bhat.O, learned counsel appearing for the respondents does not dispute the plaintiff filing subsequent suit in O.S.No.260/2022 and filing a memo dated 15.12.2023 therein seeking to withdraw the said suit, confirming the defendant to be in possession of the property.

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Heard. Perused the records.

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Before adverting to the submission made by the

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learned counsel for the appellants as well as defendant. It is necessary to note that counsel for the respondent on

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NC: 2024:KHC:14878 RSA No. 378 of 2021

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16.12.2023 had filed a memo along with an affidavit of respondent Nos.2, 4, 7 and 9. The said memo reads as under:

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"The Respondent No. 2, 4, 5, 7 and 8 have no objection to allow the Appeal as the matter is settled out of Court. Therefore, the Judgment and Decree dated: 24/02/2021 passed in R.A No. 20/2020 on the file of II Additional Senior Civil Judge and C.J.M, Mangaluru be set aside and the Judgment and Decree dated: 08/11/2019 passed in O.S No.1274/2019 on the file of the I Additional Civil Judge, Mangaluru, Dakshina Kannada may be restored, in the interest of justice and equity."

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The affidavit accompanying the said memo also reads as

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under:

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"We, (1) Mr. Alphons Montherio, aged about 73 years, son of Late Mary Montherio, (2) Mr. Symon Montherio, aged about 61 years, son of Anthony Montherio, (3) Mrs. Bridjith Montherio, aged about 62 years, d/o of Victor Montherio, (4) Mr. Bernad Montherio, aged about 78 years, son of Marceline Montherio and (5) Mr. Melvin Pinto, aged about 49 years, son Jockim Pinto, all are residing at Nekkere House, Kudupu Village, Mangaluru Taluk-575 005, do hereby solemnly affirm and state on oath as follows.

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1. We submit that, the averments made in the accompanying memo is true to the best of our knowledge, information and belief.

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We, (1) Mr. Alphons Montherio, (2) Mr. Symon Montherio, (3) Mrs. Bridjith Montherio, (4) Mr. Bernad Montherio, and (5) Mr. Melvin Pinto, deponents herein do hereby declare

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NC: 2024:KHC:14878 RSA No. 378 of 2021

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that what is stated in the above paragraphs are all true to best of my knowledge, information and belief."

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However, on 25.03.2024 Sri.Shivaram Bhat.O, learned counsel appearing for the respondents had made submission that respondent would not press the said memo, accordingly the said memo and affidavit was rejected. It is necessary to note that memo that has been filed in another suit in O.S.No.260/2022, which reads as under:

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MEMO NOT PRESSING THE SUIT

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"The plaintiffs respectfully submits as follows:

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The plaintiffs submits that, the dispute between the plaintiffs and all the defendants are settled out of Court. the plaintiffs hereby confirm that they have neither title or possession or any claim in respect of the plaint schedule properties. They have absolutely no interest in the plaint schedule properties or the suit filed by them. The plaintiffs have undertake to not press their earlier claim in O.S.No.1274/2015 on the file of I Additional Junior Civil Judge, Mangaluru now pending for consideration before Honourable High Court of Karnataka. Hence the above suit is not pressed as withdrawn.

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Prays for order accordingly."

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Notwithstanding the aforesaid memo filed by the plaintiffs, it is necessary to note that the Tribunal in its Order dated 21.12.2022, while rejecting the application filed under Form No.7 by the plaintiffs had held that the subject land is not

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cultivable as it is punja land (dry land) and that there were no signs of plaintiffs cultivating or improving the said land. It has also found that and extent of 15.69.50 acres of land in Sy.No.98/1P is in the possession of the defendant as per the document produced at Annexure-R2. It is also referred to a spot inspection carried out by the Chairperson of the Land Tribunal along with the Members on 05.11.2012 at about 10.30 a.m., in the presence of contesting parties, in which it has found that land in Sy.No.98 measuring 17.08 acres of which in some portion there existed three RCC houses and an extent of 0.50 acres of land have been acquired by Mangalore Mahanagara Palike for the purpose of construction of water tank and excluding said area an extent of 15.69.50 acres of land has been in possession of the defendant. The said report has been marked as Ex.D6 and same has remained unchallenged. The Trial Court after having gone through the material evidence placed on record by the parties and meticulously referring to the same has come to the conclusion that plaintiffs had failed to prove their possession over the suit properties, more particularly in view of their claim for

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NC: 2024:KHC:14878 RSA No. 378 of 2021

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occupancy rights having been rejected, challenged upto the Apex Court and same having attained the finality.

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However, the First Appellate Court has attempted to distinguish the reasoning assigned by the Tribunal while rejecting the application and by this Court while rejecting the writ petitions. In that the First Appellate Court has held that the reasons for rejection of the application is nature of the land and not the factum of possession of the defendant. This in the considered view of this Court is incorrect, the First Appellate Court seems to have lost its attention with regard to the spot inspection conducted by the Tribunal, wherein taking note of the existence of the RCC houses and acquisition of land by the Mangaluru Mahanagara Palike, the Tribunal had found defendant to be in possession of land measuring 15.69.50 acres of land in Sy.No.98/1P.

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Apart from the aforesaid documentary evidence available on record, repeated memos filed by the plaintiffs would also indicate that they have given up their claim of they being in possession of the property and requirement of protection by this Court against the alleged threat of dispossession by the defendant.

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NC: 2024:KHC:14878 RSA No. 378 of 2021

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In that view of the matter, substantial questions of

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law are answered accordingly in favour of the defendant. Appeal is allowed. Judgment and Decree dated 24.02.2021 passed by the First Appellate Court is set-aside, Judgment and Decree passed by the Trial Court in O.S.No.1274/2015 dated 08.11.2019 is confirmed.

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Sd/JUDGE

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Mr. Suresh Kamath v. Mr. Velarian Montherio

Case brief

What is this about?

What did the court decide?

Mr. Suresh Kamath v. Mr. Velarian Montherio

Case brief

What is this about?

What did the court decide?

What the court decided

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