Karnataka High Court
P Honnamma W/O Late Chandu Shetty vs B Jagannath S/O B Santhappa on 30 October, 2009
Author: V.Jagannathan
Bench: V.Jagannathan
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated: This the 301%: day of October 20'Q.9"f .
BEFORE
THE HONBLE MR.JUs'r1cEV..gIAGA5NNA5Ifi~1A§Jf D'
R.S.A.N0. 1014/200.1 «
BETWEEN: 1' V"
PHONNAMMA, .
w/0 LATE CHAND"U M
AGED 72 YEARS, ' "
BOLAR,MANGALOR"1~3.. "
.. ...APPELLAN'I'
[By Sri s ss_aPA"1'I3jY.<-A1)v.._3V A
AND':
1 B..JAGA]f'lNAT';'H,
S/O. _B vsANTH;AP§f_A, ADULT,
' » MANGALORE ROAD.
V WITAL 'Ims;3,A.v1LLAGE, VITTAL,
'BU'NirwAL TALUK, D.K.
* ILRESHNAPPA,
S/.0 AMMU POOJARY, ADULT,
.HQ'i?EL VIJAYA, MANGALORE ROAD,
VYITAL KASBA VILLAGE, VITTAL.
" EANTWAL TALUK, D.K.
... RESPONDENTS
-- {B5} Sri SANATH KUMAR SHETTY K, ADV. FOR R1.) THIS RSA FILED U/S100 CFC AGAKNST THE JUDGMENT AND DECREE DATED 31.7.2001 PASSED IN R.A.NO.30/2000 ON THE FILE OF THE 1 ADDL. CIVIL
ix) JUDGE {SR.DN.} 8: C-.JlVI., MANGALORE, DISMISSENG THE APPEAL AND CONEIRMINQVV JUDGMENT AND DECREE DATED 18.12.199S§_:"PAS_$E'*Cr;_.v__2_ IN O.S.N0.102/1994 ON THE FILE OF JUDGE (JR.DN.), BANTWAL.
THIS APPEAL coM1Ns_4oN"EoR HEARING"
DAY, THE COURT DELIVERED:T}iE EoL,1,owm":+«:V"" ' This seeond before the trial eo111:_:t_. for eviction of the Efiislmissed by the trial Court.' on -that the appellant had no authority. she is a stranger and also groun'd«.that the quit notice was not valid in V ~lav.v_.*v.._:Tl1e:"'lower appellate court also confirmed the order of dismissal of the suit, but on a different ground viz., the quit notice was not in . iaeieordanee with law. Thus, the concurrent findings of the courts below have formed the basis for this second appeal by the plaintiff.
ea 3
2. The appellant filed the suit seeking possession of the suit schedule property on"-.__the ground that the suit property belonged.,__'l:fO"filter. husband viz., late Chandu Shetty and death of Chandu Shetty andilal lsuitv possession by the wife, and lllchildrenfloflpl "C'ha'r.1ldiil'~_ Shetty, a compromise Wasl"i'eliitered the 15' defendant execujtod onf5l.8l.ll98l in favour of legal Shetty Viz., in the son Devadasa Shetty was let out on a monthly rent rent bond required the le«sCsee'~ not 'tolmsulo let the suit premises. This , G;'cQ:1c1ition:l"was breached by the is defendant by if * defendant into the premises. This led theappellarlt to order quit notice to the defendants.
3. It was also contended in the suit itself by the appellant that a partition suit was also filed in O.S.No.111/89 between the legal representatives of Chandu Shetty and in the said suit the appellant's la 4 eldest son Devadasa Shetty has set up a Will alleging that late Chandu Shetty had bequeathed V.-~-suit property to Prafulla, Geetha, Pushpa and stating all these factors, the appellant it decree being passed in her"favour7,di.re.etingp"the respondents to hand over vacant"possessAion 'of'=,thel"
suit premises.
4. The defendants. eonte-_ste~dgthe suit by taking up thestand defective in nature. oflifliandu Shetty have no rightlover the and the plaintiff has no right whlatsoever to llehange the nature of the suit 'l and lslh'"e'"bVeing a stranger even to the rent no locus standi to file the suit.
'laearned trial judge framed as many as four i,Vissues and six additional issues and after 'appreciating the evidence on record let in by the parties, held that the quit notice issued by the appellant was defective in nature and also held that the appellant has no authority to file the suit she 23% '3 being a stranger to the rent bond transaction. The other issues were also answered in the affirmative except additional issue No.1 which concerns the description of the suit schedule property. The the plaintiff was dismissed. The lower appel-late: * concurred with the trial co1.1rt-in .l.l_the.,, all ultimate result of the appeal that the appeal is liabcyg-..,._y to babe by l' l confirming the orde1'.of th.e"'t1'ia'l court. lllfioweyer. the lower appellate court if foulnd' one defect in the quit notice being defective in naturie with the requirement of lay as far.' as the period of notice is concerned. »V;Followingyligl'dismissal of the appeal by the lower ll the plaintiff has come up in this selcorid' appeal.
6. It has to be stated at this juncture that fthis court on an earlier occasion disposed of this appeal itself on 19.77.2007 and the learned counsel for the respondents could not be heard in the matter 2% as the counsel remained absent. The court..g'"'algso framed substantial question of law involving. question of the quit notice being valid.in:'lawiVi_§.f'4_nst and by holding that the quit notice:
with law, this court had.r'allowe'd_V"t'he of plaintiff and granted ditto the respondents to vacate and over vacant possession of thevy.su.it'V. scbediilevp"'p:i*o'perty to the lea_"r'n'efd connsel Sri. Sanath Kumar ' respondents filed the appplicatio'n_:'seekin"g review of the order passed as A af-ore»s"aid..pand "the main contention advanced in review petition was that the partition suit by the appellant itself ended in a decree pp beingwtpassed in favour of the defendants and the if appeal preferred by the appellant was also dismissed and in the process, the trial court as well as this court accepted the defendants contention in the partition suit as regards the Will being executed by $3"
Chandu Shetty. The other L.Rs preferred an fS;L.P before the Apex Court and the same Citing all these grounds, learned co1;n_'sel't.4_the-«l course of the argument on the j;r"eView-._ 'petition f therefore sought for rehearing ofvthe court had not heard the at the first instance and is now sought to be urgtd the matter.
This court./it counsel for the counsel for the ,gtai1}§-Wendel the review petition and appeal by recalling the judgment is how this second appeal is » 'now'.beirig'i1eard.
1 gifhough this court had framed substantial of law concerning the Validity of the quit it notice, in the light of the ground put forward by the Qreview petitioner in the review petition, one more substantial questiongpf law arises for consideration V//"' »-3» and as such, the points that required to be ansvtrered by this court in this second appeal are as undcrtt
1. Whether the appellant is a .
suit in View of the deeree_bei'ng a, it partition suit?
2. Whether the below an " V error of lavwrin linterpret'ingilv'the quit notice dated a 1' . --l33x.D 13.
9. Aslfar as."t'h'e' of law raised for oonsideration<ar'e._leoneerned, learned Counsel Sri. Sripathjg 'fort' ~ appellant submitted that the appellant one of the co--owners of the suit a V:V'proprertygaiong with other L.Rs of Chandu Shetty, is '- j.ustiiied."p:--.in::ulelairning suit for possession and the consenthof the other co--owr1ers is deemed to be there it and as such, the question of the appellant being a stranger to the suit does not arise. Moreover, the tenants right to question the title of the landlord is a very limited one and therefore when the appellant and other L.Rs of Chandu Shetty are the co~owr1ers of §»:
9 the suit property, it is not for the respondents tenants to question the said status of the co~own_ers and a co--owner is as much an owner of thede-n';ti_re. property as any sole owner and co~owners'iiip invoiiiesf the undivided integrity of whatfisw ometi. .g not withstanding the decree ldbeiiig pass-'ed partition suit, as the 1riatter'r«r:.i:s'sti1lVh pending the Apex Court, there matter and as such,p the a co--owner cannot be therefore the in recording a finding that the appellant" to the suit. The s13..iornissionV" sought to be supported by r decision of the Apex Court reported in '-- 6026 and the relevant paragraphs referred to were 45 to 49. As such, the it é:1uestion of appellant being a stranger does not arise hand as far as the quit notice is concerned, submission made is that there is no defect in the quit notice as the defendants i.e. the tenants were given sufficient time before filing of the suit to hand over kc 10 the vacant possession to the appellant and as such, the question of the quit notice being not in accordance with law does not arise.
10. On the other hand, learned Sariath Kumar Shetty for the :respond§ent.s" it that it is not in dispute that the Zp-artition.yAsu,it«. in a decree being passed 'in"'iTavour'--of persons to V whom suit propert},="h_as beer1lli.:'_i4:-edit';-iieathelci'"under the Will executed by latelclhandlul She'tty,1la'_1.Secondly, the said'tiind'iin.g_ofl:the cotirtdvvas called in question before. this appeal and the said appeal was, disniissed".'--co'nfirrning the trial court's finding. A adijnittingmthat against the dismissal of the ihgelaggrieved persons approached the Apex AC3..ourt~ bifipreferring the S.L.P and the matter is still AA pending, yet it is argued that the fact that the decree it been passed and the said decree having not been set aside or modified by the Apex Court as on date, it goes without saying that the decree is operative and therefore the appellant herein cannot have any legal 11 right to contend that she is the co--owner of the suit property and therefore the trial court was justified in recording affirmative finding in favour of n the defendants. Learned counsel in support "~«._tii.e aforesaid submission placed reliance on the?.dec'ision's-.-- ~ reported in AIR 1958 S.C.86. AER .198 ll comments by learned author on and Usage at para.476 and..@2£Q_O4(l) ll. Relying ,--on la:wl4"'-laid l(Zll'()'»V3.'1-'V3ifl the aforesaid' 'lelarnedl counsel therefore argued that in the neither can it be said that thg-_ appelI'ant'is* a"col-"owner nor is it a case of other ll A clalioxamersp givingmlconsent to the appellant. As such, the was justified in dismissing the suit of the appell'.ant.
it As far as the first point of law raised for it f'c.o.risideration is concerned, in the light of the aforesaid submissions put forward and the decisions referred to by the learned counsel for the parties , the question to be considered is, whether the court gt» *2 12 beilow was justified in holding that the appeiiant is a stranger to the suit property in View of the partition suit ending in a decree against the appeilantipppyyi ,,
13. it is not in dispute between that a partition suit was fiiediind O'.S.iNo.~1 both parties do not dispute theédfurther factor being passed in the said Will said to have been eireeuteidd éhetty in favour of the ppers0nsy_toV.ewh_orn property has said""order of the trial Court was also court by dismissing the appeal prefevrred the trial court's findings. It A i"s..Ca1is'e an adrriittevd fact that the S.L.P is pending Supreme Court and the matter has to be Ad-isposeri' In other Words, the decree passed by the up triai court has not been set aside or modified as on it not withstanding filing of an S.L.P by the aggrieved persons.
iv:
14». The Apex Court in the case reported in AIR 1958 S.C. 86 has held that there is nothing in the Indian Law to warrant the suggestion decree or order of the court or tribunal V' instance becomes final only on~'the'«terinination offallllg proceedings by way of appeal the appeal or revision may"pf1:itytheV' decreej"orV"order in jeopardy but until it or Aniodified, it remains effective.
J. in an3othe1'» decision reported in AIR 1981 S.C.ll'l.13«.itV by this court that, where an eviction s_Vuit.'Vvas. filed by one of the co~owners, on of lvbvoriafide requirement and the appeal 'a.gajnst~--.,'the'--decree for eviction was pending and in tlie In~eari'while the plaintiff co-owner loses the ppinteresti' in the property as a result of decree in Vpartjition suit. the Appellate Court can take notice of it .._..the subsequent event and can mould the relief accordingly.
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16. In another decision reported in 2004(1) Supreme 350 it has been held by the Apex Court that Where one co--owner files a suit for eviction against the tenant, he does it on his own behalf in right and as an agent of the other ~ consent of other co~owners isAA»wassui'ned"'*a,s 'taker:-._V it unless it is shown that the other '-fl:f'1}iQ not agreeable to eject the-.t:enantA'Vand' filed "
inspite of their disag.reeme'ntf_"One. co--oWner7 cannot withdraw his Consent"mi~d?3vay__'lthe,. "suit so as to prejudice V-3t.h'er_ c¢}'ox»mer. i'?.4__' " In the aforesaid law laid down bg,*.ithe~ Ape}; 'Court, if We examine the case on hand, » Llfi3'_S1 .iof.pall:fthe partition suit has ended in a decree H " upholding the Will said to have been erteedtedl by late Chandu Shetty and the suit property Apw'a.s bequeathed in favour of four persons viz., Vfi-"rafulia, Geetha, Pushpa and Shobha. The appeal filed against the order of the trial court was also allowed confirming the trial courts order and S.L.P is 15 pending against the Appellate Courts judgment in the Apex Court. The appellant herein therefore cannot be said to be a co--owner of the when the decree drawn at the first partition suit itself has not beenlset aside; by the Apex Court as, of 'l'he_refore,n appellant cannot be said to'V"be'"lone of the aeVo--o'Wners of the suit property :li'gl_1tdp.Vl'"o.f the decisions rendered in the partition court in the appeal. the:rnatter'4is:vstill--pending before the Apeig not attained its finality nevertheless as stands as on date, the a.p§pell'ar1t thereforegicannot contend that she is one of » jet-he of the suit property.
Secondly, the rent bond was executed betweenthe 18' defendant and Chandu Shetty, son of it it the fappellant. Under these circumstances, ll"-particularly, in the light of the decisions referred to above by the learned counsel for the respondents, I am of the View that the trial court was justified in $7 16 holding that the appellant has no locus standi to institute the suit against the defendants. Accordingly I answer this point for consideration.
19. Since the appellant has no file the suit itself, the question of ._c'opnside1t*ing'the":
validity or otherwise of the quit notice doefsnot Although there is force submission hiade by the learned counselffor lgtappeiliant that "the quit notice is in accordance ltavi'~-aritijvthe defendants were""giv'enaf, sufficient" ti1n_e""'to deliver the vacant possession of 'the_l"su__lit...'property, yet in View of the finding recorded on the 15* point for consideration, it . is--- of no significtalnce as to whether the quit notice was " y.a1id.fm: rim, ,__~2'0..i in the light of the aforesaid reasoning, the _ oourts" below were justified in dismissing the suit of if plaintiff and consequently this appeal has to fail and it is dismissed. It is also made clear that as the matter is pending before the Apex Court, the observations made herein above shall not come in the way of the appeliant in pursuing the remedies to her in law in the event of the Apex the appeiiant also being entitled to a share _ property.
e_tJUDGE Dvr: