Javaranayaka Vs Devarajanayaka

SMT. LAKSHMI D/O LATE JAVARANAYAKA, W/O CHANDRANAYAKA, AGED ABOUT 34 YEARS, R/O MALLIRAJAPATNA VILLAGE, RAMANATHAPURA HOBLI, ARKALGUD TALUK - 571 105.

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SMT. RANI D/O LATE JAVARANAYAKA,

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W/O KANTHARAJANAYAKA, R/O HOSA AGRAHARA VILLAGE AND HOBLI, K.R. NAGAR TALUK - 571 602.

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…APPELLANTS

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(BY SRI. MAHANTESH S. HOSMATH, ADVOCATE)

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AND:

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DEVARAJANAYAKA

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AGED ABOUT 60 YEARS, S/O LATE MADIHALLI JAVARANAYAKA, R/O HOSA AGRAHARA VILLAGE, AND HOBLI, K.R. NAGAR TALUK - 571 602.

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…RESPONDENT

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(BY SRI. K.S. PRAVEEN KUMAR, ADVOCATE)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT & DECREE DATED 1.10.2011 PASSED IN R.A.NO.3/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., K.R.NAGAR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 4.2.2009 PASSED IN O.S.NO.112/2006 ON THE FILE OF THE CIVIL JUDGE (JR.DN) & JMFC., KRISHNARAJANAGAR.

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THIS APPEAL, COMING ON FOR FINAL HEARING, 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 by the appellants

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challenging the judgment and decree dated 01.10.2011, passed in R.A.No.3/2009 by the learned Senior Civil Judge and JMFC, K.R.Nagar.

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For convenience, the parties are referred to,

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based on their rankings before the trial Court. The appellants were the plaintiffs and the respondent was the defendant.

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Brief facts, leading rise to the filing of this appeal are as follows:

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The plaintiffs filed a suit against the defendant for damages and possession regarding the suit schedule property. It is the case of the plaintiffs that the plaintiffs are the owners of the suit schedule property measuring east to west 20 feet and north to south 20 feet, situated in Panchayath katha and assessment No.18/16. It is contended that the defendant was the tenant for a monthly rent of Rs.100/-. The defendant paid the rent for past 1 and half year. The plaintiffs requested the defendant, to vacate, and handover the suit schedule property, but the defendant did not vacate the house. The plaintiffs issued a legal notice terminating the tenancy of the defendant vide notice dated 22.09.2005, and

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terminated the tenancy on midnight of 15.10.2005, but the defendant replied untenably. Hence, a cause of action arose for damages and possession. Accordingly, prays to decree the cost.

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3.1. The defendant filed a written statement denying

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the averments made in the plaint. It is contended that the suit filed by the plaintiffs is maintainable neither in law nor in fact. It is denied that the plaintiffs are the owner of the suit schedule property, and contended that, the defendant is in possession of the suit schedule property as a tenant. It is contended that the entire Thotti house, including a 1/4^th portion of the old country tiled house with the attached site situated at Hosaagrahara village, was in lawful possession of Basavanahalli Puttanaika, S/o Ninganaika, Krishnarajanagara, of Krishnarajanagara K.R.Pete Taluk. He sold the entire Thotti house, including the plaint schedule property, in favour of Neelanaika S/o Venkatanaika under a registered sale deed dated 05.03.1952 for a valuable consideration. The said

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Neelanaika was put in possession of the plaint schedule property in pursuance of the registered sale deed. Neelanaika sold i.e., 1/4^th portion (plaint schedule property) out of the Thotti house under the registered sale deed dated 10.02.1973, to one Nagamma. The boundaries in the sale deed dated 10.02.1973 discloses the boundaries regarding the 1/4^th portion of the thotti house. The property, which was sold under the registered sale deed dated 10.02.1973, is part and parcel of the plaint schedule property. Nagamma, i.e., the mother of the plaintiffs, sold the plaint schedule property in favour of the defendant for a sum of Rs.200/- for her legal necessity under the registered sale deed dated 12.05.1976. Thus, the defendant was put in possession of the suit schedule property in pursuance of the registered sale deed dated 12.05.1976 executed by the plaintiff’s mother in favour of the defendant. The defendant is paying the property tax to the authorities. It is contended that the plaintiffs own a vacant site and a dwelling house at Hosaagrahara village,

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and the plaint suit schedule property does not bear a katha number and assessment No.18/16. The plaintiffs played a fraud upon the Court. Hence, he prays to dismiss the suit with exemplary cost.

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3.2. During the pendency of the suit, the plaintiff died, leaving behind his legal representative. His legal representative are brought on record as plaintiff

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Nos.1 to 4.

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3.3. The Trial Court, based on the aforementioned

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pleadings, framed the following issues:

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Issues:

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1) Whether the plaintiff proves that he is the absolute owner of suit schedule property?

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2) Whether the plaintiff proves that defendant is residing in suit schedule property as a tenant?

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3) Whether the plaintiff proves that the boundary of the suit schedule property?

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4) Whether plaintiff proves that he is entitled to take over possession of suit schedule property and damages as sought for?

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5) What decree or order?

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3.4. The plaintiff, to substantiate his case, the

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plaintiff was examined as PW.1, plaintiff No.4 was examined as PW.2, and marked 13 documents were marked as Exs.P1 to P13. In rebuttal, the defendant was examined as DW.1, 2 witnesses were examined as DW.2 and DW.3, and 9 documents were marked as Exs.D1 to D9. The trial Court, after recording the evidence, hearing both sides, and assessing the verbal and documentary evidence of the parties, answered issue Nos.1 to 4 in the affirmative, and issue No.5 as per the final order. The suit of the plaintiffs was decreed vide judgment dated 04.02.2009, and the defendant was directed to vacate and hand over the vacant possession of the suit schedule property to the plaintiffs within 3 months from the date of the decree and also directed the defendant to pay the damages at the rate of Rs.100/- p.m. from the date of the suit till delivery of the plaint schedule property to the plaintiffs.

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3.5. The defendant, aggrieved by the judgment and

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decree passed in O.S.No.112/2006, preferred an appeal in R.A.No.3/2009 on the file of the learned Senior Civil Judge and JMFC, K.R.Nagar. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration:

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1) Whether the plaintiff has proved his ownership over the suit schedule property and he has let out the same to the defendant on a monthly rent of Rs.100/-?

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2) Whether the impugned judgment and decree of trial Court calls for interference by this Court?

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3) What order?

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3.6. The First Appellate Court, on hearing the

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parties, and after reassessing the verbal and documentary evidence, answered point No.1 in the negative, point No.2

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in the affirmative, and point No.3 as per the final order. The appeal was allowed. The judgment and decree passed

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by the trial Court in O.S.No.112/2006 was set aside, and

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the suit of the plaintiffs was dismissed vide judgment dated 01.10.2011.

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3.7. The plaintiff, aggrieved by the judgment and decree passed in R.A.No.3/2009 by the learned Senior Civil Judge and JMFC, K.R.Nagar, filed this Regular Second Appeal.

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This Court, on 24.06.2021, admitted the appeal

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to consider the following substantial question of law :

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“Whether the First Appellate Court justified in reversing the judgment and decree of the trial Court?”

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Heard the arguments of the learned counsel for

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the plaintiffs, and the learned counsel for the defendant.

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Learned counsel for the plaintiffs submits that the plaintiffs are the absolute owners of the suit schedule property. Furthermore, it is submitted that the plaintiffs let out the suit schedule property to the defendant on a monthly rent of Rs.100/-. He submits that the plaintiffs

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requested the defendant to hand over the vacant possession of the suit schedule property, but the defendant refused to vacate and hand-over the vacant possession of the suit schedule property. He submits that the plaintiffs issued a notice terminating the defendant’s tenancy. The defendant replied to the legal notice denying the relationship as lessor and lessee, between the plaintiffs and the defendant, and denied to vacate suit schedule property. He submits that there is no dispute regarding the relationship between the plaintiffs and the defendant as a lessor and lessee. He submits that the First Appellate Court committed an error in dismissing the suit of the plaintiffs on the ground that the plaintiffs have not produced any records to establish the relationship as a lessor and lessee between the plaintiffs and the defendant. He submits that the judgment and decree passed by the First Appellate Court is arbitrary, erroneous and perverse. Hence, on these grounds, he prays to allow the appeal.

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Per contra, the learned counsel for the

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defendant submits that the mother of the plaintiffs’ i.e., Nagamma executed a registered sale deed in favour of the defendant regarding 1/4^th portion of the Thotti house. Hence, the plaintiffs are not the absolute owners of the suit schedule property and the defendant is not in possession of the suit schedule property as a tenant. He submits that the suit filed by the plaintiffs is not maintainable, and the First Appellate Court has properly reappreciated the entire evidence on record, and rightly passed the impugned judgment. He submits that the impugned judgment does not require any interference by this Court. Hence, on these grounds, he prays to dismiss the appeal.

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Perused the records, and considered the submissions of the learned counsel for the parties.

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9. Reg. Substantial question of law : The

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plaintiffs filed a suit for damages and possession on the

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grounds that they are the absolute owners, and in possession of the suit schedule property, and the suit schedule property was let out to the defendant on a monthly rent of Rs.100/-. The plaintiffs requested the defendant to vacate the suit schedule property, but the defendant did not vacate the suit schedule property. The plaintiffs, issued a notice terminating the defendant’s tenancy vide a legal notice dated 22.09.2005. The defendant replied to the legal notice denying the ownership of the plaintiffs over the suit schedule property, and the relationship between the plaintiffs and the defendant as lessor and lessee. The plaintiff, to substantiate his case, examined himself as PW.1. He reiterated the plaint averments in the examination-inchief, and also produced the documents, Exs.P1 to 6 are the demand register extracts, Exs.P7 and P8 are the tax paid receipts, Ex.P9 is the death certificate of Neelamma, Ex.P10 is the copy of legal notice dated 22.09.2005, wherein the plaintiffs terminated the tenancy of the

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defendant, Ex.P11 is the postal acknowledgement, Ex.P12 is the genealogical tree, abd Ex.P13 is the extract of demand register. During the course of cross-examination, it was suggested to PW.1 that the mother of the plaintiffs executed a registered sale deed regarding the portion of the Thotti house. The said fact was admitted by PW.1. It is also denied that a jural relationship exists between the plaintiffs and the defendant as landlord and tenant. The said suggestions were denied by PW.1. During the pendency of the suit, the plaintiff died. The legal representative of the deceased plaintiff was examined as PW.2. She reiterated the plaint averments in her examination-in-chief. During the cross-examination, it was elicited that the suit schedule property had come to her father from her grandfather, and her grandfather's name is Subbanaika.

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In rebuttal, the defendant examined himself as DW.1. He reiterated the written statement averments in

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the examination-in-chief and also produced the

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documents. Ex.D1 to D3 are the certified copy of the registered sale deeds, Ex.D4 is the reply notice dated 20.10.2005, Ex.D5 to D7 are the tax paid receipts, and Exs.D8 and D9 are the demand register extracts. The defendant also examined 2 witnesses as DW.2 and DW.3. DW.2 deposed that the suit schedule property and the remaining entire portion of the property of the Thotti house belongs to one Basavanahalli Puttanaika S/o Ninganaika of K.R.Pete Taluk. He sold the entire property, including the suit schedule property, to one Neelanaika under a registered sale deed dated 05.03.1952. Therefore, Neelanaika sold the suit property to her and she in turn sold it to the defendant. The defendant also examined Naganaika as DW.3, who was the S/o late Neelanaika. He deposed that Neelanaika had sold the entire property, including the suit schedule property, in favour of his father, Neelanaika, under a registered sale deed dated 05.03.1952, and his father, out of the entire property of

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Thotti house, a 1/4^th portion was sold to DW.2 i.e., Nagamma under a registered sale deed dated 10.02.1973, and further, DW.2 sold the suit schedule property in favour of the defendant under a registered sale deed dated 12.05.1976.

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From the perusal of the entire evidence on record, it is clear that though the plaintiffs claim to be the owner of the suit schedule property, and that, the defendant is the tenant. The defendant has denied the plaintiffs’ title to the suit schedule property, and also as tenant. To substantiate that the plaintiffs, the plaintiffs have let out the suit schedule property in favour of the defendant, the plaintiffs have not produced any record to establish that the suit schedule property was let out to the defendant at a monthly rent of Rs.100/-. Further, the First Appellate Court, considering the admission of PW.2 regarding the boundaries of the suit schedule property held that whatever the documents produced by the

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plaintiffs coupled with the oral evidence of PW.2, do not establish the case of the plaintiffs that he acquired the suit schedule property from his ancestors, and thereby he is the absolute owner of the suit schedule property. Further, PW.2 in her cross-examination elicited that she do not know about the tenancy of the defendant regarding the suit schedule property. From the admission of PW.2, the plaintiffs have failed to establish the fact that the defendant was the tenant of the suit schedule property. The First Appellate Court, after reassessing the entire evidence on record, has rightly held that the plaintiffs have failed to establish that the defendant is a tenant to the suit schedule property. There is no jural relationship between the lessor and lessee between the plaintiffs and the defendant.

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The plaintiffs filed an application in I.A.No.1/2014 for the production of additional evidence. In support of the application, appellant No.4 filed an affidavit

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stating that the plaintiffs father has filed a suit for ejectment of the defendant. Meanwhile, during the pendency of the suit he passed away. The legal representatives have come on record, and succeeded in the suit, wherein the trial Court decreed the suit of the plaintiffs. However, the First Appellate Court, in R.A.No.3/2009, misinterpreted the case and reversed the trial Court order illegally, vide judgment dated 01.10.2011. It is stated that the appellant is producing the alleged sale deeds, wherein the defendant has denied the plaint averments and contended that it is self acquired property, as he is the owner of the property purchased by him under a registered sale deed dated 12.05.1976 from Nagamma, who had purchased the suit schedule property from one Neelanaika. Hence, it is his self acquired property and he is not a tenant. The sale deed produced by the defendant, marked as Ex.D2, does not show the suit schedule property boundaries at all, but there are different boundaries. The defendant himself, in the written

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statement, stated that the property was purchased under a registered sale deed marked as Ex.D2. It is stated that if the boundaries stated in the written statement and Ex.D2 property are quite different and not the same as plaint schedule property. Hence, he prays to allow the application.

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Though, the defendant has filed a written statement on 30.10.2006 stating, wherein Neelanaika sold a 1/4^th portion (plaint property) of Thotti house under a registered sale deed dated 10.02.1973 in favour of Nagamma, and the property sold under the registered sale deed dated 10.02.1973 is a part and parcel of the plaint schedule property. It is also stated that Nagamma sold the plaint schedule property in favour of the defendant for legal necessity under a registered sale deed dated 12.05.1976. The plaintiffs did not attempt to produce the certified copy of the registered sale deed dated 12.05.1976, and the plaintiffs have not explained in the

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affidavit why the said title deeds were not produced before the trial Court. However, the said document was in existence during the pendency of the trial. Furthermore, the plaintiffs have not explained the reason for not producing the said document before the trial Court and the First Appellate Court. Thus, the plaintiffs have not made out grounds to allow the instant application. The plaintiffs have not produced any record to establish that the defendant has paid a monthly rent of Rs.100/-. In the absence of any documentary evidence, this court is of the opinion that the plaintiffs have failed to establish the relationship of a lessor and lessee between them. The First Appellate Court was justified in passing the impugned judgment. Hence, I do not find any error in the impugned judgment.

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In view of the above discussion, I answer the substantial question of law in the affirmative.

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