Alexander Lasrado S/O Late Lawrence Lasrado Vs Abdul Kunhi S/O Mohammed Beary

ABDUL KUNHI, S/O MOHAMMED BEARY MAJOR, R/O DOOR NO.1-149A(1) OLD AND NEW D.NO.1-411 PUTTUR KASBA ROAD, VITTAL KASBA VILLAGE, P.O. VITTAL, BANTWAL. TALUK- 574 243.

¶14

…RESPONDENT

¶15

(BY SRI. KRISHNA MOORTHY D., ADVOCATE)

¶16

THIS RSA IS FILED U/S.100 OF CPC AGAINST THE JUDGMENT AND DECREE DT.19.9.2007 PASSED IN R.A.NO.187/2005 (RE-NUMBERED AS R.A.85/2007) ON THE FILE OF THE CIVIL JUDGE (SR.DN) AND JMFC, BANTWAL, D.K., DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DT.7.11.2005 PASSED IN O.S.NO.30/2000 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN), BANTWAL, D.K.

¶17

2 - NC: 2025:KHC:40791 RSA No. 2984 of 2007

¶18

HC-KAR

¶19

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

¶20

CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

¶21

ORAL JUDGMENT

¶22

The plaintiff in O.S.No.30/2000 has filed the present appeal being aggrieved by the judgment and decree dated 19^th September 2007, passed in R.A.No.85/2007 (old R.A.No.187/2005), on the file of Civil Judge (Sr.Dn.,) & JMFC, Bantwal, Dakshina Kannada, (for short, `first Appellate Court').

¶23

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

¶24

The brief facts of the case are that, the

¶25

appellant/plaintiff and his brother Peter Francis @ Franki Lasrado together purchased the suit schedule property bearing No.1-149A(1) (old), new No.1-411, situated at Vittal Panchayat, under registered Sale Deed dated 09.09.1996 from one Srinivas Shetty. At the time of purchase, the defendant was the tenant under said Srinivas Shetty. After purchase of the property, plaintiff

¶26

3 - NC: 2025:KHC:40791 RSA No. 2984 of 2007

¶27

HC-KAR

¶28

issued notice of attornment, intimating the defendant that he and his brother had purchased the property from its previous owner. Thereafter, prior to filing of the suit, plaintiff issued notice to the defendant, calling upon him to vacate and hand over the vacant possession of the suit property, along with arrears of rent. The notice was duly served on the defendant, but, defendant did not comply with the terms of the notice. On the contrary, defendant sent a notice denying the contents of the said notice. Hence, plaintiff filed the suit praying to direct the defendant to vacate and hand over vacant possession of the suit property along with arrears of rent.

¶29

The defendant initially filed a written statement

¶30

denying the contentions of the claimant. He filed additional written statement by setting up a person named Abdul Salam as his landlord and contended that he obtained the suit property from the said Abdul Salam as a tenant. The said Abdul Salam has not terminated his tenancy and therefore, he continued to be in possession of

¶31

4 -

¶32

NC: 2025:KHC:40791 RSA No. 2984 of 2007

¶33

HC-KAR

¶34

the said property; The plaintiff has no right over the suit

¶35

property. With these reasons, prayed to dismiss the suit.

¶36

The trial Court framed the following issues :

¶37

(1) Whether the plaintiff proves that the plaintiff is the lawful owner of the suit schedule premises?

¶38

(2) Whether the plaintiff proves that the defendant is a monthly tenant under the plaintiff and agreed to pay monthly rent of Rs.500/- per month?

¶39

(3) Whether the plaintiff proves that he has terminated the tenancy of the defendant by issuing quit notice on 10.1.2000?

¶40

(4) Whether the plaintiff proves that the defendant is in arrears of rent of Rs.1,500/-, at the rate of Rs.500/- per month?

¶41

(5) Whether the plaintiff is entitled to mesne profits? If so, at what rate?

¶42

(6) What order or decree?

¶43

The plaintiff to prove his case, examined himself

¶44

as PW-1 and got marked documents from Exs.P-1 to

¶45

5 -

¶46

NC: 2025:KHC:40791 RSA No. 2984 of 2007

¶47

HC-KAR

¶48

P-11. The defendant examined herself as DW-1 and got

¶49

marked documents as per Exs.D-1 to D-4.

¶50

The learned trial Judge heard the arguments and

¶51

after appreciating the pleadings and evidence led by both the parties, answered issue No.1 in the affirmative and issue Nos.2 to 5 in the negative and by the judgment and decree dated 7^th November 2005, dismissed the suit.

¶52

Being aggrieved by the same, the plaintiff has preferred R.A.No.85/2007 (old R.A.No.187/2005). The first Appellate Court heard and raised the following points for determination :

¶53

(1) Whether the trial Court has framed correct issues arising from the pleadings and the findings and reasons given are harmonious to each other?

¶54

(2) Whether the appellant makes out the grounds of appeal as set out in the appeal memo?

¶55

(3) Whether the judgment and decree passed by the trial Court is illegal requiring my interference to be set aside?

¶56

(4) What order?

¶57

6 - NC: 2025:KHC:40791 RSA No. 2984 of 2007

¶58

HC-KAR

¶59

The first Appellate Court confirmed the findings of the trial Court and dismissed the appeal. Being aggrieved

¶60

by the same, the plaintiff has preferred the present appeal.

¶61

This Court while admitting the appeal, has framed the following substantial questions of law for consideration:

¶62

" Whether the judgments of the two Courts below are contrary to the law laid down in Venkateswara Oil Co., Tirupati vs. Guduru Jalaja Reddy (1997 AIHC 1781)?"

¶63

I have heard the arguments of learned counsel

¶64

for both side and perused the materials placed on record.

¶65

The learned counsel for the respondent submits that on 21.03.2025, during the pendency of the appeal, the respondent has vacated and handed over the vacant possession of the suit premises to the appellant/plaintiff, therefore, the suit filed by the appellant is rendered

¶66

7 - NC: 2025:KHC:40791 RSA No. 2984 of 2007

¶67

HC-KAR

¶68

infructuous. The learned counsel for the appellant submitted that the said premises has not been handed over to appellant, but it is kept under lock and key. Therefore, this Court has proceeded to hear the matter and decide on merits.

¶69

The trial Court in the judgment held that appellant is the owner of the property. The said finding was confirmed by the first Appellate Court and not challenged by the defendant. Hence, no need to re-consider it. Moreover, to claim rent, it is not necessary to prove that plaintiff was owner of the suit property.

¶70

Katha in respect of suit schedule property was changed in the name of the appellant, wherein the name of the respondent was shown as possessor. Earlier, name of Srinivas Shetty was shown from the year 1995-96 to 1996-97 and thereafter, name of the plaintiff/appellant has been shown as a owner. Ex.P-7 is the RTC in respect

¶71

8 - NC: 2025:KHC:40791 RSA No. 2984 of 2007

¶72

HC-KAR

¶73

of the suit property and it stands in the name of the plaintiff.

¶74

Prior to filing of the suit, plaintiff sent a notice to defendant through his advocate dated 10.01.2000. The said notice was duly served on the defendant. In the reply notice, defendant has not contended that Abdul Salam was the owner of the suit property or leased the property in his favour. He denied the right of the plaintiff to claim the possession of the property. Therefore, for the first time, the contention of the defendant was changed in the additional written statement filed by him. The trial Court has rightly considered these facts and held that plaintiff was the owner of the property.

¶75

The defendant except his self-serving statement,

¶76

has not produced any records to show that he has obtained suit premises on lease through the said Abdul Salam. The documents produced by the defendant are also not sufficient to substantiate his contentions.

¶77

9 - NC: 2025:KHC:40791 RSA No. 2984 of 2007

¶78

HC-KAR

¶79

In the cross-examination, the defendant has

¶80

stated that at the time of issuance of notice, as well as filing of written statement, initially he gave instructions to his advocate that he had obtained the property from Abdul Salam on lease. He has a document to show that there is a registered agreement between himself and Abdul Salam regarding obtaining lease of the property. But, no such records have been produced. Moreover, it is pertinent to note that said Abdul Salam appears to be a fictitious person. If really a third party had the possession of the property, then the defendant ought to have produced the said Abdul Salam before the Court and examined him as a witness or produced any documents to show that he was the owner of the suit property. Without any materials, he is contending that he was not a tenant under the plaintiff and he had no relationship of landlord and tenant between himself and the plaintiff.

¶81

Plaintiff is seeking possession and damages on the basis of title. Defendant in the written statement filed

¶82

10 - NC: 2025:KHC:40791 RSA No. 2984 of 2007

¶83

HC-KAR

¶84

on 30.08.2002, denied all the plaint averments and he prayed to dismiss the suit. He filed additional written statement on 30.07.2005 i.e., about three years after filing of the written statement for first time, wherein a new case was made out stating that one Abdul Salam was the owner of the land and he was his landlord and he paid the rent to said Abdul Salam. He failed to substantiate the said contention. Under these circumstances, both the Courts below without any materials on record, held that their exists no relationship of landlord and tenant between plaintiff and defendant. The defendant admits that he was a tenant in the suit premises, but according to him, he was a tenant of Abdul Salam, however, there are no materials on record to accept the same. When such is the fact, the trial Court ought to have decreed the suit.

¶85

As per the submission of learned counsel for the respondent/defendant the suit property is kept vacant and it is not in use of either of the parties and this matter has been pending for the last 25 years, so far, none appeared

¶86

11 -

¶87

NC: 2025:KHC:40791 RSA No. 2984 of 2007

¶88

HC-KAR

¶89

before this Court claiming title over the property or disputing the rights of the plaintiff seeking possession over the property.

¶90

Plaintiff contends that defendant was paying rent of Rs.500/- per month to his vendor. That fact was disputed by the defendant and in his cross-examination, defendant contends that he was sharing the profit and payments, of Rs.100/-, Rs.200/- or Rs.300/- per month. However, in his cross-examination he has stated that the suit premises is situated nearby the bus-stand and that the nearby shop owner might be paying Rs.40/- per day as rent.

¶91

The said answer is vague and it is not clear as to measurement of suit property. Plaintiff suggested in his cross-examination that suit premises would yield rent of Rs.30/- per day and he denies it. Considering the contentions of the parties and materials available on record, defendant is directed to pay Rs.500/- per month as

¶92