Karnataka High Court
Sri Suresh Chatra vs Sri K Balakrishna on 11 January, 2018
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
REGULAR SECOND APPEAL No.1368 OF 2005
BETWEEN
Sri. Suresh Chatra,
S/o. Venkatachala Chatra,
Hindu, Aged about 44 years,
Residing at Badakere
of Koteshwara Village,
Kundapura Taluk,
Udupi District-576222.
...Appellant
(By Sri. S.Gangadhara Aithal, Advocate)
AND
1. Sri. K.Balakrishna,
S/o. Manjunath Venkataramana Naik,
Hindu, Major,
Residing at Koteshwara Village,
Kundapura Taluk,
Udupi District.
Since dead by LRs.,
a) Smt. Sunanda,
Wife of Late Balakrishna,
Hindu, aged about 68 years,
Residing at Balakrishna Sadana,
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Kerekatte, Koteshwara,
Kundapur Taluk,
Udupi District-576222.
b) Smt. Kathyyini,
wife of Ramesh,
D/o. Late Balakrishna,
Hindu, aged about 44 years,
Residing at Bank Colony,
B.H.Road, Vadera Hobli,
Kundapur Taluk,
Udupi District-576201.
c) Smt. Mahalakshmi,
Wife of Dattatreya K.N.
D/o. Late Balakrishna,
Hindu, aged about 41 years,
Jeevana Chaitanya,
Near Kanaka Bhavan,
Gangaluru, Hoskotte-562114.
d) Sri. Veera Narayana,
S/o. Late Balakrishna,
Hindu, aged about 38 years,
Residing at Balakrishna Sadana,
Kerekatte, Koteshwara,
Kundapur Taluk,
Udupi District-576222.
e) Smt. Bhavani S. Kamath,
Wife of Sampath Kamath,
D/o. Late Balakrishna,
Hindu, aged about 35 years,
Residing at B-3, Durgamatha Building,
Mathashree Sankul, Behind TCJ Godown,
Rees Village, Rasayani, Raigad District,
Maharastra-410207.
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f) Smt. Vijayalakshmi,
Wife of Sandeep,
D/o. Late Balakrishna,
Vidyodaya Public School,
Vadiraja Road, Udupi-576101.
g) Sri. Veera Narasimha,
S/o. Late Balakrishna,
Hindu, aged about 28 years,
Residing at Balakrishna Sadana,
Kerekatte, Koteshwara,
Kundapur Taluk,
Udupi District-576222.
2. Sri. Annappayya,
S/o. Manjunath Venkataramana Naik,
Hindu, Major,
Residing at Koteshwara Village,
Kundapura Taluk,
Udupi District-576222.
Since dead by LRs.
a) Smt. Gayathri,
W/o. Venkatesh Shanubhough,
D/o. Late Annappayya,
Hindu, aged about 35 years,
Residing at Flat No.F-2,
"Kamakshi Prasad",
Opp: Pole Factory,
Goa Dairy Road,
Ganganagara Street,
Phonda Goa-403401.
b) Smt. Padmavathi,
W/o. Sripathi Bhat,
D/o. Late Annappayya,
Aged about 33 years,
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Residing at "Anugraha"
No.358/5, Beech Road,
Koteshwara, Kundapur Taluk,
Udupi District-576222.
c) Smt. Rajani,
W/o. Venugopal Bhat,
D/o. Late Annappayya,
Aged about 30 years,
Residing at Nagara Kodige,
Hosanagara Taluk,
Shimoga District-577418.
...Respondents
(R1(a) to (g) - served; R2(a) to (c) - served)
This RSA is filed under Section100 CPC against the
judgment and decree dated 16.03.2005 passed in
R.A.No.14/2000 on the file of the Civil Judge (Sr. Dn.),
Kundapura, partly allowing the appeal and modifying the
judgment and decree dated 30.06.1998 passed in
O.S.No.71/1982 on the file of the Prl. Civil Judge (Jr. Dn.)
Kundapura.
This RSA coming on for final hearing, this day, the
court delivered the following:
JUDGMENT
This appeal is by the plaintiff in O.S.71/1982 on the file of the Principal Civil Judge (Junior Division), Kundapura. The pleadings briefly stated, are as below :- 5
2. In respect of property bearing 3/108 (1) and 3/108 (2) of Koteshwara Village, the plaintiff instituted a suit seeking delivery of possession from the defendants and for mesne profits at the rate of Rs.20/- per month. The plaintiff pleaded that the defendants' father was in possession of house bearing door No.3/108 (2) of Koteshwara Village as a tenant. The defendants and their father also wanted an adjacent house bearing door No.3/108 (1) for their residence and that they agreed to pay a monthly rent of Rs.20/-. The defendants' father was put in possession of both the houses on 9.2.1961 and 9.7.1970.
The late father of the defendants executed a Badige Kararu (rent note) on 21.7.1970 for 11 months. Since the son of the plaintiff wanted to start a business in the entire building and that the bathroom and the roof of the said building required repairs, the plaintiff terminated the monthly tenancy of the defendants by issuing a registered notice dated 21.12.1981 and called upon the defendants to pay the arrears of rent and surrender vacant possession. 6 The defendants did not vacate and therefore the plaintiff filed a suit seeking possession.
3. The second defendant filed written statement denying the plaint averments that his father was enjoying property bearing No.3/108 (2) as a monthly tenant and that his father and the first defendant took the house bearing door No.3/108 (1) on a monthly lease for Rs.20/-. He denied that the plaintiff put them in possession on 9.2.1961 and execution of a badige kararu on 21.7.1970 for 11 months. He contended that the first defendant took possession of 20 cents of land in Sy. No. 295/5 of Koteshwara Village on 9.2.1961 and since then he has been in continuous possession and enjoyment as of right and without any interruption whatsoever. He further stated that he established a temple in the said plot and has been continuously holding religious ceremonies and rites by spending huge money. The plaintiff never objected to the improvements made by the first defendant and to enjoy the 7 said property as absolute owner. Therefore, the first defendant acquired right to the said plot by adverse possession and that the plaintiff has no manner right, title or interest. The second defendant further contended that the plaintiff has no right to claim possession from the first defendant without paying the value of the improvements effected by him over the said plot. Therefore, he prayed for dismissal of the suit.
4. The trial court partly decreed the suit directing the defendants to vacate and hand over vacant possession of door No.3/108 (1) within three months and dismissed the suit with regard to another house bearing door No.3/108 (2). It is the finding of the trial court that the plaintiff was able to prove that badige kararu patra marked Ex.P1 proves that the defendants are tenants only in respect of house bearing door No. 3/108 (1) and that the plaintiff has failed to prove the relationship of landlord and tenant in respect of the other house bearing No. 3/108 (2). This is the 8 reason for decreeing the suit in respect of one house and dismissing it in respect of another house.
5. Aggrieved by this judgment, the plaintiff and defendants preferred two appeals to the court of Senior Civil Judge, Kundapura. RA 146/1999 was the appeal filed by the defendants challenging the judgment of the trial court decreeing the suit in respect of house bearing 3/108 (1). RA 14/2000 was the appeal filed by the plaintiff aggrieved by the dismissal of the suit in respect of house bearing 3/108 (2). It may be mentioned here that when the suit was pending before the trial court, the defendants filed a memo stating that they would not press issues 2, 4 and 5. These issues related to the defendants' establishing the right over 20 cents of land in Sy. No. 294/5, and adverse possession pleaded in the written statement. Therefore, the trial court did not answer these three issues and proceeded to examine the entire case of the plaintiff on the basis whether there was valid termination of the tenancy and 9 that relationship of landlord and defendants had been established. But, the first appellate court upon re- appreciation of evidence came to the conclusion that the appeal filed by the defendants, i.e., RA 146/1999 should be dismissed as it concurred with the findings of the trial court with regard to the termination of tenancy in respect of house bearing 3/108 (1). But, in regard to appeal filed by the plaintiff challenging the dismissal of the suit pertaining to portion bearing No.3/108 (2), the first appellate court also dismissed the suit, confirming the judgment of the trial court although, it allowed the claim of the plaintiff for arrears of rent in respect of property bearing No. 3/108 (1), which relief had been denied by the trial court. Hence, this second appeal aggrieved by the judgment of the first appellate court dated 16.3.2005 in RA 14/2000.
6. On 25.7.2017, this appeal was admitted to consider the following substantial questions of law :- 10
"1. Whether both the courts below were justified in rejecting the prayer for ejectment and possession with reference to door No.3/108(2) in the absence of documents to show that the defendants have better title than that of the plaintiff?
2. Whether the lower appellate court was justified in framing points for consideration and giving a finding on issues 2, 4 and 5 which were deleted before the trial court on the basis of memo filed by the defendants withdrawing their defence to consider those issues which were framed on their defence?
7. I have heard the arguments of the appellant's counsel. The respondents have been served with the notice of appeal and nobody represents them.
8. The learned counsel for the appellant argues that in the trial court, the defendants counsel filed a memo stating that issues 2, 4 and 5 would not be pressed and for 11 this reason the trial court did not answer these issues. The implication of this memo was that the defendants did not urge the specific plea taken by them with regard to adverse possession. When the defendants themselves abandoned their pleading with respect to adverse possession, the first appellate court unnecessarily ventured to answer this aspect of the matter. He further argues that the two houses are under the same roof. In respect of one house both the courts below held that the plaintiff was the absolute owner and was entitled to seek eviction of the tenants. It is quite strange that in respect of other house, both the courts below gave a contrary finding holding that the plaintiff was not the landlord of the defendants. He argues that although the relationship of landlord and tenant was not established in respect of the second house, the title of the plaintiff in respect of the entire building was not disputed. When the defendants gave up the plea with regard to adverse possession, they should have proved as to on what basis they could claim to be in possession of the 12 said house. When they did not prove a title better than that of the plaintiff, the plaintiff would be entitled to possession automatically. In spite of this position of law being argued before the first appellate court, it was not considered and, therefore, the judgment of the first appellate court requires to be set aside by holding that the plaintiff is entitled to possession of house bearing No. 3/108 (2). In support of his arguments, he placed reliance on two judgments:-
(i) Syed Nazmuddin vs N.S.Krishna Murthy [1998 (4) Kar.L.J.110]
(ii) Aras Khan and Others vs Ali Mian [AIR 1985 Patna 126] Substantial question No. 2:-
9. Before answering substantial question No.1, I think it proper to answer question No.2. The judgment of the trial court clearly discloses that the defendants counsel filed a memo stating that issues 2, 4 and 5 were not pressed and on the basis of this memo those issues were deleted. This aspect is not disputed.
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10. Issues 2, 4 and 5 are as follows : -
"2. Whether the defendants prove that the 1st defendant took possession of 20 cents in 1961 in S.F.294/5 of Koteshwar Village as of right?
4. Whether the defendants prove that they have acquired right over 20 cents in S.F.294/5 of Koteshwara village by prescriptive and adverse possession?
5. Whether the suit for possession of the buildings alone is maintainable without claiming possession of 20 cents in S.F.294/5 of Koteshwara Village?"
11. It is needless to state that the trial court raised these three issues based on the contentions taken by the second defendant in the written statement to the effect that the first defendant took possession of 20 cents of land in land in Sy. No. 295/5 of Koteshwara Village of Kundapura Taluk on 9.6.1961 and since then he had been in 14 continuous possession and enjoyment thereof as of right without interruption whatsoever. In para 4 of the written statement, he has pleaded about adverse possession. When the defendant got filed a memo through his counsel abandoning these issues, it amounts to abandoning or giving up the specific contentions taken by him in the written statement. This was the reason for the trial court not considering these issues. The first appellate court has bestowed its attention to hold that the defendant being in possession of the said plot since 1961, perfected his possession by prescription. This was unwarranted. There was no need for the first appellate court to have answered this aspect of the matter. The plaintiff's case was that the defendant was also a tenant in respect of house bearing door No. 3/108 (2). When the trial court held that the plaintiff failed to prove that he was the landlord and that the defendant was a tenant, it was necessary for the first appellate court to have examined the findings of the trial court on that point. Although the first appellate court 15 examined the correctness of the findings of the trial court, it held that the defendants being in possession of the house bearing No. 3/108 (2) for quite a long time, perfected their title by adverse possession. This is an illegality committed by the first appellate court. It is no doubt true that the first appeal is a continuation of the suit, but, it cannot venture to give findings on issues which had been given up by the defendants. Hence, I come to the conclusion that the first appellate court was not justified in giving findings on issues 2, 4 and 5. For this reason, substantial question of law No.2 is answered in the negative.
Substantial question No. 1:-
12. Both the courts below have held that in respect of house bearing door No. 3/108 (2), the relationship between the plaintiff and the defendants being that of landlord and tenant has not been established. Ex.P1 is the badige kararu patra which according to both the courts below is in respect of another house No. 3/108 (1) only. Since both the 16 courts have concurrently held that the tenancy applied only in respect of that property, the finding cannot be disturbed. But, the fact remains that when once the defendants gave up their plea with regard to adverse possession and DW1 admits in the cross-examination that the temple was established after taking permission from the plaintiff, it amounts to saying that the defendants admit the plaintiff to be the lawful owner of the entire property. When the plaintiff claims possession claiming that he is the absolute owner of the property, and that the defendants gave up their plea of adverse possession, they should have proved that they had a better title than the plaintiff to remain in possession. Going by Articles 64 and 65 of the Limitation Act, possession can be sought on two grounds. Article 64 provides for taking possession based on previous possession and Article 65 for claiming possession on the basis of title. Here the defendant should say or should have pleaded as to on what basis they were in possession of a portion of the building in respect of which they claimed 17 adverse possession which was also given up by them. Even if it is assumed that the plaintiff was not the absolute owner, but the fact remains that the defendants took over possession of house bearing No. 3/108 (2) from the plaintiff and thereby the previous possession of the plaintiff gets established. Not only on the basis of admission given by DW1 in the cross-examination it can be stated that the plaintiff was the absolute owner, but the plaintiff has also produced a sale deed as per Ex.P9 to show his title over the suit property. The first appellate court appears to have not considered this document. Therefore, when plaintiff's title gets established, the question arises whether the court should have moulded relief by granting decree of possession notwithstanding the fact that the relationship of landlord and tenant was not established. In this context I find it useful to refer to the judgment in the case of Aras Khan (supra) of the Patna High Court where a similar situation arose. It is held as below :-
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"11. The trial court decreed the plaintiffs' suit and a decree for recovery of possession was passed on the basis of a perfect title found in the plaintiffs. Whether the plaintiffs could get a decree on the basis of their title or not was the moot question to be considered by the Court of appeal below; more so, when the trial Court in arriving at the finding that the 'plaintiffs had a valid title in the suit premises on the basis of their sale deed discussed the evidence (oral and documentary) on the record. The trial Court granted the decree (in part) in favour of the plaintiffs on the ground of equitable relief. Whether the decree could be granted in favour of the plaintiffs on the ground of equitable relief or not was the question to be considered by the lower appellate Court. The view taken by the Court of appeal below to the effect that if the decree for eviction could not be passed, as prayed in relief (a), the question of allowing the prayer in relief (b) did not arise, was not a correct view of law, as already decided by this Court in Second Appeal No. 458 of 1980 (Satyadeo Prasad v. Bibi Zulekha 19 Khatoon), disposed of on 22nd of Mar. 1984.* Once the opportunity to establish title was given to the plaintiffs and plaintiffs did establish their title in the premises in question on the basis of their sale-deeds, there was no reason to deny the equitable relief to the plaintiffs. Such a view has been settled in the case of Satyadeo Prasad v. Bibi Zulekha Khatoon (Supra). The Court of appeal below should have gone into the question of title and seen for itself whether in its opinion, the plaintiffs had established their title in the premises in question, but, as already stated above, the court of appeal below, having taken an erroneous view of law, did not go into this question at all nor did it consider the various circumstances and the evidence, which were taken into consideration by the trial Court".
13. This Court also in the case of Syed Nazmuddin (supra) held as below : -
"8. Thus it has to be held by a reading of Section 108(d) and on the strength of the 20 decisions referred to above. "There is a presumption that whenever a lessee or a tenant encroaches upon the adjacent area to his leased or tenanted premises, then such encroached area or premises or property, also gets included as the 'Leased or Tenanted' property and the tenant is obliged to protect the landlord's rights in respect of the encroached area also, and deliver up unto the landlord at the end of tenancy the said encroached area alongwith the original tenanted or leased area".
9. On the facts I have held that the open space on the northern and eastern side of the leased portion prima facie belong to the landlord. Applying the above said rule I hold that this disputed vacant land is also to be considered as tenanted property. If it is held as a tenanted property then the relationship of the petitioner in respect of the disputed property is also to be held as one of landlord and tenant. In that view the petition under Section 21(1) is maintainable for eviction". 21 The ratio laid down by this court is very clear that adjacent portion in respect of which the relationship of landlord and tenant does not exist can also be considered as tenanted property and the tenant be directed to put the landlord in possession.
14. It is not disputed that house bearing No. 3/108 (1) and another house bearing No. 3/108 (2) have a common roof. If the tenancy in respect of one house gets established, obviously the plaintiff can be held to be lawful owner of the entire property. Just because relationship in respect of one house is not established, it does not mean that the plaintiff will be disentitled to decree for possession in respect of another house. The trial court could have moulded the relief in accordance with Order VII Rule 7 CPC; even the first appellate court failed to exercise jurisdiction under Order 41 Rule 33 CPC. Therefore, I come to the conclusion that both the courts are not justified in rejecting the prayer for ejectment or possession 22 of the house bearing No. 3/108 (2). Substantial question No.1 is held in the negative.
15. In view of the above answers on the substantial questions of law, this appeal deserves to be allowed. Therefore, the appeal is allowed. The judgments of the Courts below concerning the portion of the suit property bearing No.3/108(2) are set aside. Suit is decreed in respect of this portion also. It is held that the plaintiff is entitled to possession of house bearing No. 3/108 (2). The defendants shall deliver the possession of this portion within three months from today.
Sd/-
JUDGE ckl