Rajan S/O Purushottam Mapsekar Vs Gurunath S/O Mahadev Pawaskar

AGE: MAJOR, OCC: BUSINESS IN SHOP NO.10 AND 11 OF CMC, KARWAR, R/O: BUILDING NO.1278 OF CMC, AT CUTINHO ROAD, KARWAR, TQ AND DIST: UTTARA KANNADA – 581 301.

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…RESPONDENTS

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THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT AND DECREE DATED 24.09.2021 PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE, KARWAR IN RA NO.98/2019 CONFIRMING THE JUDGMENT AND DECREE DATED 08.04.2019 PASSED BY THE ADDITIONAL CIVIL JUDGE, KARWAR IN O.S.NO.242/2013, IN THE INTEREST OF JUSTICE AND EQUITY. DECREE THE SUIT IN OS NO.242/2013 AS PRAYED FOR BY THE APPELLANT/PLAINTIFF AND ETC.,

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NC: 2025:KHC-D:7283 RSA No. 100855 of 2022

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HC-KAR

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

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)

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The unsuccessful plaintiff is before this Court,

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being aggrieved by the judgment and decree, dated 08.04.2019, passed in O.S. No.242/2013 on the file of the Addl. Civil Judge, Karwar (for short “the Trial Court”), by which the trial Court dismissed the suit of the plaintiff, which was confirmed by the judgment and decree dated 24.09.2021, passed in R.A. No.98/2019 on the file of the Addl. Senior Civil Judge, Karwar (for short “the First Appellate Court”).

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The above suit was filed by the plaintiff seeking relief of permanent injunction restraining the defendants from evicting him from the suit schedule property without due process of law. The suit was subsequently amended to seek restoration of possession, based on the allegation that the defendants had illegally dispossessed the plaintiff during the pendency of the suit.

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HC-KAR

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The case of the plaintiff is that, defendant No.1

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was the owner of the schedule property and had inducted the plaintiff as a tenant. When the defendant was in need of financial assistance during the construction of the building, he approached the plaintiff. The plaintiff paid a sum of Rs.65,000/- to the defendant, based on the assurance that a permanent lease of the shop premises to be constructed would be granted in favour of the plaintiff. Accordingly, a lease deed was executed between the plaintiff and the defendant No.1 on 10.10.1990. Since then, the plaintiff had been in peaceful possession and enjoyment of the premises.

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On 16.10.2008, the defendant executed another lease deed in favour of the plaintiff with a specific clause providing for renewal of the lease every five years, with a 10% increment in rent. At the time of execution of this second lease, the plaintiff paid a sum of Rs.25,000/- to the defendant as a refundable deposit. The plaintiff also spent about Rs.60,000/- on the renovation and repair of the shop premises. Thus, though the plaintiff was occupying the

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HC-KAR

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premises as a permanent tenant, the defendant threatening the plaintiff with forcible dispossession. As a result, the plaintiff was constrained to file the suit seeking a permanent injunction to restrain the defendant from evicting him without due process of law.

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The plaint was amended by inserting paragraph No.10A, alleging that defendant No.1 had forcefully taken possession of the shop premises from the Manager of the plaintiff on 11.05.2014, while the plaintiff was away, without following due process of law. Accordingly, the plaintiff sought the relief of a mandatory injunction directing

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the defendant to hand over actual possession and occupation of the shop premises to the plaintiff.

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The defendant filed written statement admitting that he is the absolute owner of the suit premises and that the plaintiff was tenant under him. However, it was contended that the plaintiff had illegally sublet the suit premises to one Shri Bheraram Nimbramji Prajapat on

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HC-KAR

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01.07.2011 and had collected additional rent of

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Rs.2,82,750/- from the sub tenant. Upon learning of this sublease, the defendant issued notice under Section 106 of the Transfer of Property Act on 17.08.2013, terminating the lease and calling upon the plaintiff to vacate the premises. The plaintiff issued a reply on 02.09.2013. It is further contended that since the plaintiff had illegally sublet the premises, the lease was validly terminated, and a fresh lease deed was subsequently executed in favour of defendant No.2. The allegations of forcible dispossession is denied as false. It is contended that the plaintiff was not at all in possession of the suit premises. As such, the question of restoration did not arise.

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Based on the pleadings, the trial Court framed

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the following issues and additional issues:

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“ISSUES

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1. Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property as on the date of filing of the plaintiff?

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NC: 2025:KHC-D:7283 RSA No. 100855 of 2022

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HC-KAR

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2. Whether the plaintiff further proves that the alleged interference by the defendant.

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3. Whether the plaintiff entitled for the relief claimed?

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4. What order or decree?

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ADDL. ISSUES

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1. Whether the plaintiff proves that the defendant dispossessed the plaintiff from the suit premises in illegal manner?

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2. Whether the plaintiff proves that he is entitled to direct the defendant to hand over the actual possession and occupation of the shop premises by way of mandatory injunction?”

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Upon appreciation of the evidence, the trial Court

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answered all the issues and additional issues in the negative and consequently dismissed the suit.

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Being aggrieved, the plaintiff preferred an appeal in R.A. No.98/2019.

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The First Appellate Court framed the following points for its consideration;

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HC-KAR

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“POINTS

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1. Whether the plaintiff has effectively demonstrated that he was dispossessed by the defendant No.1 from the shop premises after filing of the suit?

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2. Whether any interference is called for by this court? If so, to what extent?

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3. What order?”

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Upon re-appreciation of the evidence, held point

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Nos.1 and 2 in the negative. Consequently, it dismissed the

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appeal and confirmed the judgment and decree passed by the trial Court.

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The trial Court and the First Appellate Court,

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upon perusal of the averments made in the plaint, the documents produced by the plaintiff, and his deposition, concluded that the plaintiff failed to prove that he was in possession of the premises as on the date of the filing of the suit. The allegation made by the plaintiff that the defendant had taken illegal possession of the suit premises on 10.11.2014, during the pendency of the suit, was also

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HC-KAR

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rejected by both Courts, as the plaintiff failed to substantiate the said claim. Though the plaintiff alleged that he had gone to Dubai and that defendant No.1 had forcefully taken possession of the property during his absence, he produced only two documents i.e., Exs.P9 and P10, being a train ticket and an air ticket from Karwar to Mumbai and from Mumbai to Goa. During the cross examination, the plaintiff himself admitted that he had no documents to prove his possession of the suit premises prior to the filing of the suit. Taking these factual aspects into consideration, the Trial Court dismissed the suit by the impugned judgment, which was affirmed by the First Appellate Court.

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