Dismissed

Sri. Dinesh Acharya v. Sri. M. Hemachandra

Karnataka HC15 Oct 2024RSA/45/2021

Case brief

AI extract

What is this about?

In a Regular Second Appeal concerning eviction, the High Court of Karnataka dismissed the appeal. The bench upheld the eviction decree, ruling that defendants were estopped from challenging the plaintiffs' title under Section 116 of the Evidence Act after previously accepting it during tenancy.

What did the court decide?

Appeal was dismissed; judgments and decrees passed by courts below confirmed; no order as to costs.

Sri. Dinesh Acharya Vs Sri. M. Hemachandra — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:41654 RSA No. 45 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15^TH DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 45 OF 2021 (POS)

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BETWEEN:

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SRI. DINESH ACHARYA AGED ABOUT 61 YEARS,

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SURESH ACHARYA AGED ABOUT 57 YEARS,

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Digitally signed by KAVYA R Location: High Court of Karnataka

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BOTH ARE CHILDREN OF LATE RAMAYYA ACHARYA, R/A. KANTESHWARA JEWELER, MOODBIDRI TOWN, MOODBIDRI POST, MANGALORE TALUK 574227.

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…APPELLANTS

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(BY SRI. SIDDHARTH B MUCHANDI., ADVOCATE)

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AND:

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SRI. M. HEMACHANDRA S/o SRIDHARA ACHARYA

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PREMA AGED ABOUT 64 YEARS W/O SRIDHARA ACHARYA

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R/A LAXMI CHAYA, BETKERI, MOODBIDRI POST, MANGALORE 574227

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SUJATHA D RAO

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AGED ABOUT 59 YEARS, W/O DHEENANATH RAO A/103, ALAKANANDA NEAR BHANDARKAR HOSPITAL OPP L T ROAD VAZIRNAKA BORIVILI (W) MUMBAI 400091

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SUNITHA U ACHARYA AGED ABOUT 55 YEARS, W/O UMESH ACHARYA R/AT BEHIND KPT D 16, VYASANAGAA BEJAI

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SHOBHA J ACHARYA

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AGED ABOUT 53 YEARS, W/O K J ACHARYA, R/AT NEELGAGAN, B/16 PLOT NO 21, THARUN BHARATH SOCIETY, CHAKALA ANDHERI (E) MUMBAI 400099

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SANDHYA J ACHARYA AGED ABOUT 51 YEARS, W/O JAYAPRAKASH ACHARYA, R/AT 1ST FLOOR, GARDEN VIEW, JYOTHI NAGAR, MOODBIDRI, MANGALURU 574227

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ASHA SURESH AGED ABOUT 49 YEARS, W/O SURESH, R/A 70/1, 5TH MAIN 3RD BLOCK THYAGARAJA NAGAR, BASAVANAGUDI, BANGALORE 560070

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LATHA P ACHARYA AGED ABOUT 47 YEARS, W/O PRAKASH ACHARYA, R/AT NO 62, 1ST MAIN, 4TH BLOCK, MSR NAGARA BANGALORE 560054

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…RESPONDENTS

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(BY SRI. CHANDRANATH ARIGA K., ADVOCATE FOR R1 AND R2)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 28.02.2020 PASSED IN RA.No.108/2015 (OLD RA No.14/2010) ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, AND ACJM. MANGALURU D.K. (ITINERARY AT MOODABIDRI) DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE

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DATED 28.08.2010 PASSED IN OS.No.96/2006 ON THE FILE OF THE CIVIL JUDGE AND JMFC, MOODABIDRI.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed challenging the Judgment and decree dated 28.02.2020 passed in R.A.No.108/2015 by the III Addl. Senior Civil Judge & ACJM, Mangaluru, D.K. (Itinerary at Moodabidri) and the Judgment and decree dated 28.08.2010 passed in O.S.No.96/2006 by the Civil Judge & JMFC, Moodabidri. For convenience, parties are referred to based on their ranking before the trial court.

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For convenience, parties are referred to as per their ranking before the trial Court. Appellants are the

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defendant Nos.1 and 3, Respondent No.1 and 2 are the plaintiffs, and other respondents are the defendants.

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The Plaintiff filed the suit for ejection against

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the defendants seeking the possession of 'A' Schedule property and mesne profits at Rs.2,000/- per month.

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The brief facts leading rise to the filing of this appeal are as under:

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The Suit 'A' Schedule property described in the plaint bearing door No.8-138 in Survey No.58/4 is situated at Moodbidri Town Municipality, Mangaluru Taluk. Original 'A' scheduled property was enjoyed by late Ramayya Acharya as a monthly tenant under Narasimha Pai as per the registered lease deed dated 07.02.1986 on a monthly rent of Rs.200/-. The Plaintiffs have purchased the suit schedule property under the registered sale deed dated 14.08.1995. After the expiry of the lease period, the late

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Ramaiah Acharya was holding the premises as a statutory tenant under the provisions of the Karnataka Rent Control Act, 1961. The plaintiffs issued a notice dated 30.06.1997 terminating the tenancy of the Defendants. After terminating the tenancy, the Plaintiffs filed the Eviction

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petition under the provisions of Karnataka Rent Control Act, 1961 in HRC.No.11/1997 on the file of II Additional Civil Judge (Junior Division), Karkala. The Ramayya Acharya filed a counter to the eviction proceedings wherein he has admitted that he was a statutory tenant in possession of the plaint 'A' schedule property and also admitted regarding the execution of lease agreement dated 07.02.1986, but disputed the grounds raised in the eviction petition under the provisions of the Karnataka Rent Control Act 1961. During the pendency of the said eviction proceedings, the tenant, Ramayya Acharya, passed away. The Defendants were brought on record as Legal Representatives of deceased Ramayya Acharya. The proceedings initiated under the provision of the Karnataka Rent Control Act were abated due to the repealing of the Act. The plaintiffs were issued another notice dated 02.11.2006, terminating the tenancy. The said notice was duly served on the defendants. Even after the termination of the tenancy, the Defendants continued to have the Suit

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Schedule Property. Hence, a cause of action arose for the plaintiffs to file the suit for ejectment.

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Defendant No.3 filed a written Statement, and Defendant No.1 filed a memo adopting the written statement filed by Defendant No.3. In the Written Statement filed by Defendant No.3, it is contended that Defendant No.1 is in actual possession and enjoyment of the shop situated in S.No.58/3. The said land was initially held by Dr.Y.Umanath Rao, S/o Bhavani Rao on moolageni tenancy right. It is stated that, he acquired the said property under the registered moolageni deed dated 03.01.1955. It is contended that the defendant's father obtained the shop now occupied by them from one Ananda Pai, Dr.Y.Umanath Rao and others on a monthly rental basis. It is contended that, the plaintiffs are not the owners of the land in Sy.No.58/3 and Sy.No.58/4. Hence, they are not entitled to the relief claimed in the plaint, and the notice issued by the plaintiffs is bad in law. Hence, prays to dismiss the suit.

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Defendant No.4 filed a written statement

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contending that she is one of the co-tenants in respect of the suit premises with independent right, title, and interest. She never acknowledged or attorned to the plaintiffs and there is no relationship between the plaintiffs and defendants as a landlord and tenant. The suit is bad for non issuance of quit notice. Hence, prays to dismiss the suit.

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Defendant No.6 filed a written statement contending that the plaintiffs have no right, title, or interest over 'A' schedule property. It is contended that, this Court has no jurisdiction to entertain the suit in view of Section 132 of the Karnataka Land Reforms Act. Further, there was no relationship of landlord and tenant between the plaintiffs and the Defendant's father. Hence, prays to dismiss the suit.

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The Trial court framed the issues based on the

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above mentioned pleadings. The plaintiffs, in order to prove their case, plaintiff No.1 was examined as PW.1 and

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got marked 17 documents as Ex.P1 to Ex.P17. The Defendant No.3 was examined as DW.1, and defendants examined one witness as DW.2 and got marked 8 documents as Ex.D1 to Ex.D8.

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The Trial court, after recording the evidence, hearing on both sides and assessing oral and documentary evidence, decreed the suit of the plaintiffs and directed the Defendants to hand over the vacant possession of the suit premises to the plaintiffs within 60 days from the date of the judgment and further directed the Defendants to pay future mesne profits at the rate of Rs.1,500 per month to the plaintiffs from the date of suit till the delivery of possession of the suit premises.

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The defendants aggrieved by the judgment and decree passed in O.S.No.96/2006 preferred appeal in R.A.No.108/2015 on the file of the learned III Additional Senior Civil Judge and ACJM, Mangaluru, D.K. (Itinerary at Moodabidri). The appellate Court, after hearing the learned counsel for the parties and reassessing the oral and

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documentary evidence placed on record, dismissed the appeal with cost and confirmed the judgment and decree passed in O.S.No.96/2006. Defendants aggrieved by the impugned judgments filed this Regular Second Appeal.

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Heard the learned counsel for defendants. The learned counsel for defendants submits that the schedule property shown in the plaint is wrong and shop room bearing door No.8/138 of Moodabidri town Muncipality, occupied by the defendants Nos.1 and 3 is not situated in Sy.No.58/4, but the suit shop is situated in Sy.No.58/11-b and he further submits that there is a dispute with regard to the identity of the property. He submits that the father of the defendants was in possession of the property as a Moolageni tenant under Ex.D1 and both the Courts below have not considered Ex.D1 and proceeded to pass the impugned judgments. He further submitted that the impugned judgments passed by the Courts below are contrary to Ex.D1. Hence, on these grounds, he prays to allow the appeal.

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Perused the records. Considered the

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submissions of the learned counsel for defendants. The plaintiffs in order to establish their case plaintiff No.1 himself examined as PW.1, reiterated the plaint averments in the examination in chief and in order to prove that the plaintiffs are the absolute owners of the suit schedule property have produced the copy of the registered sale deed marks as Ex.P15 which discloses that the plaintiffs have purchased the suit scheduled property from Narasimha Pai after paying the valid consideration amount. Further, plaintiffs have also produced Ex.P1 i.e.,

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the copy of the lease deed dated 07.02.1986, which discloses that the suit scheduled property was let out in favour of the defendants' father. The plaintiffs before the filing of the instant suit, filed an eviction petition in HRC.No.11/1997 under the provisions of the Karnataka Rent Control Act, 1961 and the said eviction petition was abated in view of the repealing of the Karnataka Rent Control Act, 1961. Thereafter, the plaintiffs got issued a legal notice-Ex.P11 dated 02.11.2006 terminating the tenancy

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of the defendants. The defendants replied the legal notice as per Ex.P13. From the perusal of the reply and the written statement filed by the defendants in HRC proceedings, the defendants have admitted that they are in possession of the suit scheduled property as a moolageni tenant under Narasimha Pai but not under the plaintiffs. Admittedly, the plaintiffs have purchased the property under Ex.P15 from Narasimha Pai and the defendants has not challenged the registered sale deed executed in favour of the plaintiffs. From the admission of the defendants in the earlier proceedings regarding that,

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the father of the defendants was in possession of the suit scheduled property as a tenant, and now the defendants, being the Legal representatives of Ramaiah Acharya, have no right to deny the title of the plaintiffs over the suit scheduled property. Further, as per Section 116 of the Evidence Act, the estoppel by the tenant; once the tenant having accepted the title of the land lords, the tenants have no right to deny the title of the plaintiffs.

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To consider the case, Section 116 of the

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Evidence Act, which reads as follows, must be examined

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"No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given".

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Section 116 contemplated that no tenant of immovable property shall be in continuance of the tenancy be permitted to deny that the landlords of such tenant had, at the beginning of the tenancy, a title to such immovable property and no person who came upon immovable property shall be permitted deny such persons had a title to the possession. Admittedly, the defendants admitted the ownership of Narasimha Pai, from whom the

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plaintiffs have purchased the property, having accepted the tenancy.

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By virtue of Ex.P15, all the rights vested with Narasimha Pai are transferred in favour of the plaintiffs. The Court considering Section 116 of the Evidence Act and also Ex.P15 i.e., the registered sale seed executed by one Narasimha Pai in favour of plaintiffs and also an admission of defendants in the reply notice-Ex.P13 and Ex.P1 i.e., the certified copy of the registered lease deed dated 07.02.1986 have rightly held that the father of the defendants who was in possession of the suit scheduled property as a tenant and after his demise the defendants continued to be in possession of the suit scheduled property.

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The learned counsel for the defendants submits

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that both the Courts below have failed to consider Ex.D1, i.e., the certified copy of the registered Moolageni deed dated 03.01.1955. After the execution of Ex.D1, the father of the defendants executed Ex.P1, i.e., on 07.02.1986, in

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view of the execution of subsequent documents, i.e., Ex.P1, both the Courts below were justified in ignoring Ex.D1 and rightly passed the impugned judgments. I do not find any error in the impugned judgments or any substantial question of law that arises for consideration in this appeal. Accordingly, I proceed to pass the following:

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ORDER

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i) Appeal is dismissed .

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ii) Judgments and decrees passed by the Courts

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below are hereby confirmed. No order as to costs.

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In view of the dismissal of the appeal, I.A.No.2/2020

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does not survive for consideration.

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Sd/(ASHOK S.KINAGI) JUDGE

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LDC

Sri. Dinesh Acharya v. Sri. M. Hemachandra

Case brief

What is this about?

What did the court decide?

Sri. Dinesh Acharya v. Sri. M. Hemachandra

Case brief

What is this about?

What did the court decide?

What the court decided

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