Mr M Chandayya(Since Deceased) Vs Mrs Somavathi

(BY SRI. A KESHAVA BHAT FOR R6., ADVOCATE SRI. HARISH BHANDARY T., ADVOCATE FOR R2, R3, R4 & R7 SRI. S RAJASHEKAR, ADVOCATE FOR R9(D, E, G TO J) R5 SERVED V/O DATED 01.04.2025 APPEAL IS DISMISSED AS ABATED AGAINST R8 V/O DATED 01.04.2025 APPEAL IS DISMISSED AS ABATED AGAINST R9(B) R9(A AND C) ARE DECEASED AS PER CAUSE TITLE R9(B), R9(F)(1), R9(F)(2), R9(F)(3), R9(F)(4), R11, R13, R14, R16, R17, R20, R21 ARE SERVED V/O DATED 16.06.2016 R2-R5 ARE TREATED AS LEGAL REPRESENTATIVES OF DECEASED R1 & R14-R18 R21-R22 ARE TREATED AS LEGAL REPRESENTATIVES OF DECEASED R19 V/O DATED 16.06.2016 NOTICE TO R15 & R18 ARE D/W R10, R12 V/O DATED 12.03.2018 THE APPEAL AGAINST R10 STANDS ABATED AND THE ADVOCATE FOR APPELLANT IS PERMITTED TO DELETE R12 FROM THE ARRAY OF PARTIES)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 13.8.2013 PASSED IN R.A.NO.94/1993 ON THE FILE OF DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 1.3.1993 PASSED IN OS.No.89/1989 ON THE FILE OF PRINCIPAL MUNSIFF, PUTTUR, D.K.

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THIS APPEAL, COMING ON FOR ORDERS, 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 appellant challenging the judgment and decree dated 13.08.2013 passed in R.A.No.94/1993 by the learned Addl. Senior Civil Judge and JMFC at Puttur, Dakshina Kannada (‘ First Appellate Court ’, for short), confirming the judgment and decree dated 01.03.1993 passed in O.S. No.89/1989 by the learned Principal Munsiff at Puttur (‘ Trial Court ’, for short).

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For convenience, the parties are referred to based on their rankings before the Trial Court. The

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appellant is the legal representative (LR) of the deceased plaintiff; the respondents were the defendants before the Trial Court.

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

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3.1. The plaintiff filed a suit for declaration of title of

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super structure and possession over the suit schedule property. It is the case of the plaintiff that the property building site situated in Uppinangady town covered by 7/6A belongs to Dharmasthala Authorities. The plaintiff enjoyed the said site on a rent of Rs.9/- per annum and the site was taken on lease by his ancestors more than 100 years and he has inherited the same as a lessee under Dharmasthala Authorities. The plaintiff and his father as a tenant had put up a building in the portion of plot Sy.No.7/6A and let out to different tenants. The father of the plaintiff applied license from the local Panchayat for renovation and reconstruction of existing building in 1972. After obtaining necessary permission the building was

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rebuilt and he was running a hotel in the name of ‘Tiffin Hall’ as a tenant under the plaintiff’s father. In 1974, with the consent of the plaintiff and his father he gave possession of the same to one Govinda Prabhu. Thereafter, Govinda Prabhu and his son Vasudeva Prabhu acquired the possession and started hotel in the name of ‘Laxmi Nivas’ as a tenant. Subsequently, Govinda Prabhu found difficulty to run the hotel business therefore, he surrendered the rights of his business along with possession of Door No.2/75 in favour of Ramanna Rai. He started to run the hotel in the name and style as ‘Usha Restaurant’ as a tenant of defendant Nos.1 to 5. The plaintiff terminated the tenancy of defendant Nos.1 to 5 and demanded to surrender the possession on or before 31.03.1982. The defendants failed to surrender the possession of the suit schedule property. Hence, a cause of action arose for the plaintiff to file a suit.

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Defendants No.1 and 3 filed a written statement

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denying the averments made in the plaint. It is contended

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that the suit filed by the plaintiff is not maintainable and it is denied that ancestors of the plaintiff have taken the site in Sy.No.7/6A on annual rent of Rs.9/- from Dharmastala Authorities. It is also denied that the plaintiff has no right, title or interest over the suit schedule property and it is also contended that the suit is bad for non-joinder of necessary parties. Hence, prays to dismiss the suit.

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4.1 Defendant No.6 filed a written statement

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denying the averments made in the plant. It is contended that the site was taken on lease by the ancestors of the plaintiff and his father. It is contended that the plaintiff issued a notice of termination of tenancy. Defendant No.6 replied to the said termination notice. It is contended that neither the plaintiff nor his father have any right over the suit schedule property and prays to dismiss the suit against defendant No.6.

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4.2 Defendant No.7 filed a written statement denying the averments made in the plaint. It is contended that A-schedule premises belongs to defendants No.1 to 5.

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He took the said room from them in 1979 on monthly rent of Rs.150/- and there is no relationship as a land lord and tenant between the plaintiff and defendant No.7. Hence, prays to dismiss the suit against defendant No.7.

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4.3 Defendant No.8 filed a written statement reiterating the written statement filed by defendant No.7.

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4.4 Defendants No.9 and 10 filed a common written statement denying the averments made in the plaint. defendants No.9 and 10 have acquired title over the suit schedule property by way of adverse possession. Hence, prays to dismiss the suit against defendants No.9 and 10.

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4.5 Defendant No.12 filed a written statement denying the averments made in the plaint and it is contended that the suit schedule property belongs to late Koraga Sherigara and after his death it belonged to the plaintiff. The plaintiff is enjoying the property site on lease from Dharmasthala Authorities, hence, prays to dismiss the suit against defendant No.12.

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The trial Court, based on the rival pleadings of the parties framed the relevant issues.

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The plaintiff to substantiate his case examined himself as PW.1. The plaintiff examined 5 witnesses as PWs.1 to 5 and marked 53 documents as Exs.P1 to P53. In rebuttal, 8 witnesses were examined on behalf of the defendants as DWs.1 to DW.8 and marked 53 documents as Exs.D1 to D53.

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The trial Court after appreciating the entire evidence on record, dismissed the suit of the plaintiff vide judgment dated 01.03.1993. The legal representative of the deceased plaintiff aggrieved by the judgment and decree passed in O.S.No.89/1989 preferred an appeal in R.A.No.94/1993 on the file of Additional Senior Civil Judge and JMFC, Puttur, D.K.

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The first Appellate Court after re-appreciating the entire evidence on record dismissed the appeal vide judgment dated 13.08.2013. One of the legal

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representative of deceased plaintiff, filed this regular second appeal.

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Heard the arguments of the learned counsel for the plaintiff.

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Learned counsel for the plaintiff submits that the impugned judgments passed by the courts below are arbitrary and erroneous. He submits that the plaintiff is the tenant of site Sy.No.7/6A under Dharmasthala Authorities for more than 100 years. The plaintiff and his father after obtaining necessary permission from the competent authorities constructed a building and let out the same to the defendants. It is contended that there exists relationship as landlord and tenant between the plaintiff and defendants. The said aspect was not properly considered by the courts below and committed an error in passing the impugned judgments. He submits that defendants No.1 to 4 have not produced any material to support their defense and both the courts below have ignored Exhibit P1 and Exhibit P2 on the ground that no

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door number is mentioned therein where the license is for construction of a building. Hence, on these grounds, he submits that the impugned judgments passed by the courts below are arbitrary and erroneous. Accordingly, prays to allow the appeal.

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

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12. Admittedly, the plaintiff has not produced any documents to show that ancestors of the plaintiff have taken the Site Sy.No.7/6A on lease from the Dharmasthala Authorities. Furthermore, the plaintiff has not produced any documents supporting the construction of the super structure put up by his father after obtaining license from the Panchayat. As the plaintiff has not produced any document in support of the construction, the plaintiff got issued a termination notice to defendants No.1 to 6 on 01.03.1982 as per Exhibit P43, and the plaintiff has produced mutation order passed on 01.09.1985. Notice

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issued by the plaintiff to the defendants was prior to the mutation order.

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13. The plaintiff has examined the Secretary of Mandal Panchayath as PW2. From the perusal of evidence of PW.2, he is unaware of when the construction of a building was completed by the plaintiff and he has deposed that Balappa Rai was supervising the construction of the building. The plaintiff also examined another witness as PW3, who was the secretary of Mandal Panchayath. He has deposed that documents relating to Door Nos. 2/75, 2/75(1),2-75(2) and 2/75(3) are not available in the Panchayat and he has issued Exhibit P48. The plaintiff has failed to give a proper explanation for non-production of construction permission for constructing super structure on site Survey No. 7/6A. The defendants No.1 to 8 were examined on behalf of the defendants and they have denied ownership of the plaintiff over the super structure and also denied the existence of the relationship as a landlord and tenant. The suit is one for declaration of

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title of A-schedule super structure of the site bearing Survey No.7/6A of Uppinangadi Village. Admittedly, the suit is one for declaration of title and the plaintiff must establish his title over the suit schedule property.

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12. Admittedly, the plaintiff has not produced the title deed to prove the ownership of the suit schedule property. Both courts below have concurrently recorded findings of fact that the plaintiff has failed to prove the ownership of the suit schedule property and the said site was let out by the Dharmastala Authorities. The plaintiff and his father constructed super structure on the said site and they have failed to prove the relationship as landlord and tenant. Hence, both the courts below have concurrently recorded finding of facts against the plaintiff. In view of the above discussion, I do not find any error in the impugned judgments or any substantial question of law that arises for consideration.

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