Smt Sharada Shetty W/O Late Appu Mestry (Since Deceased) Sri Ramakrishna Shetty Vs Mr B Ananda G Pai

SRI RAMAKRISHNA SHETTY AGED ABOUT 75 YEARS, S/O LATE SHARADA SHETTY, R/AY SHARADA, PERVAJE, KARKALA KASBA VILLAGE, KARKALA TALUK, UDUPI DISTRICT - 574 104.

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Digitally signed by SHARADAVANI B Location: High Court of Karnataka

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SRI. GOPALAKRISHNA SHETTY, AGED ABOUT 66 YEARS

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SMT BABY SHETTY AGED ABOUT 59 YEARS

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SRI ANANTHKRISHNA SHETTY AGED ABOUT 56 YEARS APPELLANTS NO.1 TO 4 ARE CHILDREN OF

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LATE SHARADA SHETTY AND ARE RESIDENTS OF BHARATH BEEDI COMPOUND, PERVAJE ROAD, KARKALA KASDA VILLAGE, KARKALA TALUK, UDUPI DISTRICT - 574 104.

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2 - NC: 2025:KHC:34601 RSA No. 996 of 2024

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HC-KAR

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SMT. SHOBHA SHETTY, AGED ABOUT 62 YEARS, D/O SMT SHARADA SHETTY, R/AT DOOR NO. 158/1, WARD 1, BHARATH BEEDI COMPOUND, PERVAJE ROAD, KARKALA, KASDA VILLAGE, KARKALA TALUK - 574 104.

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…APPELLANTS

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(BY SRI. SACHIN B S.,ADVOCATE)

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AND:

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MR. B. ANANDA G. PAI AGED ABOUT 49 YEARS, S/O LATE B. GANAPTHI PAI, EXECUTIVE DIRECTOR, BHARATH BEEDI WORKS (PVT.) LTD, MANGALORE,

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R/AT BHARATH BHAG, NEAR BUNTS HOSTEL, KADRI ROAD, MANGALORE CITY, MANGALORE TALUK, D.K.DISTRICT- 575 003.

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…RESPONDENT

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(BY SRI. CYRIL PRASAD PAIS, ADVOCATE)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 01.03.2024 PASSED IN RA NO.34/2017 ON THE FILE OF SENIOR CIVIL JUDGE AND ACJM, KARKALA., DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 30.10.2017 PASSED IN OS NO.65/2014 ON THE FILE OF PRL. CIVIL JUDGE AND JMFC, KARKALA.

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NC: 2025:KHC:34601 RSA No. 996 of 2024

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HC-KAR

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard the learned counsel Sri. K.V. Aniketh for the appellants.

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Defendant is the appellant challenging the

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judgment and decree passed in O.S.No.65/2014 confirmed in R.A.No.34/2017 whereby suit of the plaintiff is decreed and defendant was directed to surrender the vacant possession of Schedule 'A' Property within two months and to pay mesne profit of Rs.500/- per month from the date of suit till recovery.

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Facts in the nutshell which are utmost necessary for disposal of the appeal are as under:

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A suit came to be filed for the relief of possession of the following immovable property which is hereinafter referred to as Suit Schedule 'A' Property :

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HC-KAR

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SUIT 'A' SCHEDULE PROPERTY

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Left side portion of the tiled residential building bearing Karkala Town Municipality bearing Door No. 158/1 Ward I measuring about 450 Sq.ft. Consisting with two rooms, one kitchen, toilet, bath room and with electricity supply and all other things attached to the building (At present the Town Municipality, Karkala is allotted fresh Door number 1-158/1 in respect of plaint 'A' schedule premises).

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it is contended that plaintiff is one of the co-

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owners of Suit Schedule 'A' Property and himself and other co-owners have inherited the suit property and other landed properties.

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Defendants are statutory tenants of the plaintiff. One Appu Mestry - husband of the first defendant and father of the second defendant obtained plaint schedule premises from the ancestors of the plaintiffs on monthly rent of Rs.8/- payable on 1^st day of every month.

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After the death of said Appu Mestry, first defendant and daughter - second defendant have occupied the plaint schedule property on payment of monthly rent.

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HC-KAR

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The other children of Appu Mestry and first

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defendant got married and they are living in their respective husband's houses. Elder daughter of first defendant Smt. Baby Alva is presently working as Principal, Government Pre University College, Muniyalu and another son by name Gopalakrishna Shetty is working as Chief Officer, Pattana Panchayath, Saligrama, yet another son by name Sri. Ananthakrishna Shetty is working as Government Contractor, Town Municipality, Karkala and he is residing in Karkala.

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A notice of termination was issued under

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Section 106 of Transfer of Property Act and despite the same, there was no compliance, as such, a suit was initiated. Suit on contest, came to be decreed.

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Defendant has contended that GPA holder did

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not have the power to initiate and prosecute the suit as there was no specific mention of the suit property in the General Power of Attorney.

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HC-KAR

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The suit was also resisted on the ground that

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the notice issued by the plaintiff was incorrect and did not grant any right for the plaintiff to seek for possession of the suit property. Both the grounds were negated by the Trial Judge.

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Being aggrieved by the decreeing of the suit, defendant filed an appeal before the First Appellate Court.

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Learned Judge in the First Appellate Court after securing the records heard the arguments of the parties and noted that the execution of the General Power of Attorney in faovur of PW1 where there was no mention as to description of the suit property is incorrect and validity of the notice was re-appreciated and ultimately dismissed the appeal.

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Being aggrieved by the same, the present appeal has been filed on the following grounds:

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The impugned Judgment and Decree passed by the court below is unjust, opposed to law, contrary to the pleadings and evidence paced on the parties. Under such

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HC-KAR

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circumstances the impugned judgment and decree passed by the court below is liable to be set aside.

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The Court Below had committed an error while passing the impugned judgment and decree which is in consideration of irrelevant material placed on record by the respondents and non-consideration of real material placed on record by the appellant. Under such circumstances the impugned judgment and decree passed by the courts below are liable to be set aside.

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The Court Below has committed an error in disbelieving the evidence adduced by the appellant and passing the Judgment based on misconception of real point in controversy in the case and which is opposed to the case set up by the appellant. Under such circumstances the impugned Judgment passed by the court below is liable to be set aside.

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The impugned Judgment passed by the court below is contrary to the pleadings and evidence in the case, contrary to the facts found or is in consistent with the statement of reasons therefore, the judgment based on quaint reasoning or is vague, indefinite ambiguous, arbitrary, vitiated by prejudice, based on distorted view of the evidence, based on surmises or extraneous consideration, no reasons have been given for findings, material facts and evidence placed by the appellant have been ignored in arriving at the conclusion of fact. Under such circumstances the impugned judgment passed by the courts below are liable to be set aside.

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The findings arrived at against the appellant by the court below is vitiated by error of law of substantial nature as it was based on no evidence and same is based on simple conjectures and surmise and on inadmissible piece of document and as such vitiated by error of law. Under such circumstances the impugned judgment passed by the courts below are liable to be set aside.

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The Courts Below had committed an error in not appreciating the evidence in proper perspective under such circumstances the impugned judgment passed by the courts below are liable to be set aside.

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HC-KAR

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In the appeal, the following substantial

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questions of law raised in the appeal:

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a) Whether the first appellate court has justified in confirming the judgement and decree passed by the trail court in contrary to the evidence adduced by the Appellants?

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b) Whether the first appellate court has justified in decreeing the counter claim of the defendant without there being any supporting evidence to justify the counter claim of the defendants?

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c) Whether the first appellate court committed an error in misinterpreting the documentary or oral evidence adduced by the appellants?

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d) Whether finding recorded by the court below while passing impugned Judgment and decree resulted in perverse and not in conformity under law.

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Sri. K.V. Aniketh, learned counsel for the appellants reiterating the grounds urged in the appeal memorandum vehemently contended that both the Courts have failed to appreciate that PW1 did not have any authority to prosecute the suit inasmuch as there was no mention of the suit property in the Power of Attorney.

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HC-KAR

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Therefore, very initiation and prosecuting the suit itself is incorrect and sought for admitting the appeal for further consideration.

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He would also invite the attention of the Court that the notice issued seeking termination of the tenancy under Section 106 of the Transfer of Property Act is incorrect which has not been properly appreciated by both the Courts and sought for admitting the appeal.

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Respondent is served with the notice of the

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appeal but remained absent.

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Having heard the arguments of the counsel for appellant, this Court bestowed its attention to the material on record.

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On such perusal of the material on record, it is crystal clear that the ownership of the plaintiff is not in dispute.

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The fact of non mentioning of the suit property

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in the Power of Attorney did not cause any serious dent to

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HC-KAR

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the case of the plaintiff as it is a General Power of Attorney.

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Further, if there is any deficiency with regard to the validity of the notice, it was always open for the defendants to question the same as to how the notice was invalid. In that regard, except the self serving testimony, there is no other material placed on record.

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Copy of the legal notice marked as Ex.P42 is taken into consideration by this Court. Said notice is not even replied by the defendants.

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Under such circumstances, grounds urged in the appeal memorandum are hardly sufficient to admit the appeal on the aforesaid substantial questions of law for further consideration.

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