Karnataka High Court
Smt Mangala vs Sri Manjunath A on 2 April, 2014
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 02ND DAY OF APRIL, 2014
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
R.F.A.No.610 OF 2012 (RES)
BETWEEN:
Smt. Mangala,
Wife of Ramesha,
Aged about 35 years,
Residing at No.32,
4th Main, 4th Cross,
Vinayaka Nagar Layout,
Kengeri Satellite Town,
Bangalore - 560 060.
(Note: The appellant is wife of Iyanna
And not Ramesha as disclosed in the
Cause title of the judgment.) ... Appellant
(By Sri T.Srinivasan, Advocate)
AND:
1. Sri Manjunath A.
S/o.Late Iyanna,
Aged about 20 years.
2. Sri Kumar A.
Son of Late Iyanna,
Aged about 19 years.
Both are residing at
No.1153/A, 3rd Cross,
2
6th Main, Kengeri Satellite Town,
Bangalore - 560 060. ... Respondents
(By Sri N.Subba Shastry, Advocate for R1 & R2)
This RFA is filed under Section 96 of CPC, against the
judgment and decree dated 25.01.2012 passed in
O.S.No.7189/2009 on the file of the XII Additional City Civil &
Sessions Judge, Bangalore, decreeing the suit for ejectment,
arrears of rent and mesne profits, etc.
This RFA, coming on for orders, this day, the Court
delivered the following:
JUDGMENT
This appeal is directed against the judgment and decree, dated 25.1.2012 passed by the Court of the XII Additional City Civil Judge, Bangalore (CCH No.27) in O.S.No. 7189/2009, decreeing the suit for ejectment filed by the respondents.
2. The facts of the case in brief are that the site No.32/5 measuring 30ft. x 40ft situated at 4th Main, 4th Cross, Vinayaka Nagar Layout, Kengeri Satellite Town, Bangalore belonged to Dyavaiah. The said house property consisted of eight residential tenements. One tenement (suit schedule property) out of them is stated to have been gifted by 3 Dyavaiah in favour of the respondents. The appellant - defendant is the tenant of the suit schedule property on a monthly rent of `1,200/-. It is the further plaint averment that `5,000/- advance was given to late Dyavaiah. As the appellant - defendant was neither paying the rents regularly nor vacating the suit schedule property, the respondents filed the ejectment suit.
3. The appellant - defendant filed the written statement taking serious exception to the incorrect description of her husband's name. It is her case that her husband's name is Iyanna and not Ramesh as wrongly stated in the plaint. She further contended that the suit property is the ancestral property of late Dyavaiah. She denied the execution of the gift deed and the jural relationship between herself and the respondent - plaintiffs. The appellant - defendant claims to be the second wife of Iyanna. She married him after the plaintiffs' mother Jayamma deserted Iyanna. She stated that she filed the suit for partition in O.S.No.5271/2008. As the 4 suit schedule property was left out of the schedule properties in the said suit by inadvertence, the respondent - plaintiffs have filed O.S.No.7189/2009 for ejectment. She also claimed that Iyanna's sister Gowramma is in possession of the suit schedule property.
4. Based on the rival pleadings, the Trial Court formulated the following issues:
(1) Whether the plaintiffs prove that they are the owners of the suit schedule property?
(2) Whether the plaintiffs prove that the defendant is the tenant on rental of `1,200/- p.m.? (3) Whether the notice of termination is valid?
(4) What order or decree?
5. The respondent - plaintiffs got their mother and natural guardian examined as PW1, marking the documents at Exs.P1 to P9. The appellant - defendant got herself examined as DW1, marking three documents in the Ex. 'D' 5 series. She also got two independent witnesses examined for her.
6. The Trial Court answered the issues in favour of the respondent - plaintiffs and decreed the suit. Aggrieved by the same, the defendant is in appeal before this Court.
7. Sri T.Srinivasan, the learned counsel for the appellant submits that not a single document is produced to show that the appellant is the tenant under the respondents.
He submits that there is no attornment of tenancy in favour of the plaintiffs on the alleged execution of the gift deed. He emphatically submits that there is no jural relationship between the parties.
8. Sri Srinivasan submits that a daughter is born in the wedlock between Iyanna and the appellant. The daughter's name is Aishwarya. He submits that he has produced certain documents along with I.A.No.II/2012 filed invoking Order XLI Rule 27 of the CPC. He submits that the appellant has produced the order, dated 18.11.2008 granting the widow 6 pension. In the said order, her husband's name is rightly shown as Iyanna. He also submits that in the invitation card for performing the last rites of the deceased Iyanna, the name of the appellant is shown. He brings to my notice the certificate, dated 04.10.2012 issued by the school authorities showing the name of the parents of Aishwarya as Iyanna and Mangala (appellant). He submits that the birth certificate of Aishwarya is also containing the names of Iyanna and Mangala.
9. The learned counsel submits that subsequently, Iyanna's sister Gowramma has filed the P.Misc.No.18/2012 in O.S.No.7189/2012 seeking leave of the Court to sue the present respondent-plaintiffs and the appellant-defendant for declaring that the gift deed, dated 06.08.2008 alleged to have been executed by Dyavaiah in favour of the respondent - plaintiffs is null and void. He submits that the sale deed in respect of the properties in question executed in favour of 7 Dyavaiah itself shows that it was purchased in the name of his minor daughter Gowramma.
10. Sri N.Subba Shastry, the learned counsel for the respondents submits that in para 4 of the written statement the appellant has stated that Gowramma is in possession of the suit schedule property. He submits that the voters' identity card (Ex.D1) shows that the appellant does not even reside in the suit schedule property. He submits that the tenancy arrangement between Dyavaiah and the appellant is oral. He submits that the suit schedule property is the self- acquired property of Dyavaiah. It is not his ancestral property at all. He submits that the gift deed, dated 06.08.2008 executed by Dyavaiah in favour of the respondent
- plaintiffs is not challenged at all.
11. The submissions of the learned counsel have received my thoughtful consideration. I have browsed through the lower court records.
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12. It is the version of the appellant and supported by two independent witnesses, namely Chandru and Vasudeva (DWs. 1 and 2) respectively that the appellant has been residing in the suit schedule property in her capacity as the second wife of Iyanna and not in her capacity as the tenant. The Trial Court ought to have formulated an issue on this aspect of the matter by putting the burden on the appellant; whether the defendant proves that she is residing in the suit schedule property in her capacity as the second wife of Iyanna and not in her capacity as the tenant?
13. This issue assumes the significance in view of the version of the respondent - plaintiffs that the tenancy arrangement was only of oral nature.
14. Just because the suit schedule property is not included in the partition suit O.S.No.5271/2008, it cannot be inferently concluded that the appellant is the tenant under the respondent - plaintiffs.
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15. Yet another aspect of the matter is that Iyanna's sister Gowramma has filed P.Misc.No.18/2012 in O.S.No.7189/2009 seeking the relief of declaration that the gift deed is null and void. The said Gowramma is none but the sister of Iyanna. If the sale deed in respect of the property in question itself is executed in favour of Gowramma as represented by her father, then the question as to whether the minor's property could have been disposed off without the Court's permission, assumes pertinence.
16. The next question that falls for my consideration is whether I.A.No.2/2012 deserves to be allowed?
17. I am of the considered view that the documents accompanying the I.A.No.2/2012 are required for answering the issue as to in which capacity the appellant is residing in the suit schedule property. I therefore, allow the said I.A.
18. The appellant's side is permitted to produce the documents accompanying the I.A. before the Trial Court. As far as the sale deed, dated 04.08.1995 is concerned, it is not 10 produced with the I.A. No.2/2012. The liberty is reserved to the appellant's side to produce the same by making appropriate application before the Trial Court.
19. In the result, I pass the following order:
(1) The judgment and decree under appeal is set aside. (2) The matter is remanded to the Trial Court for fresh enquiry in accordance with law by framing the additional issue which is raised in para No.12 hereinabove.
(3) Liberty is reserved to both the parties to produce fresh documents and lead fresh/additional evidence in the matter.
(4) The parties and/or their respective learned advocates shall appear before the Trial Court on 23.04.2014 at 11.00 a.m. without waiting for any notice from the Trial Court. The Trial Court shall dispose of the remanded matter as expeditiously as possible and in any case within an outer limit of four months from 23.04.2014. Needless to observe that all the contentions are left open.11
20. No order as to costs.
Sd/-
JUDGE Cm/-