Karnataka High Court
Mrs K Thankam vs Mr Melville D Sa on 5 March, 2020
Author: Nataraj Rangaswamy
Bench: Nataraj Rangaswamy
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY
REGULAR SECOND APPEAL NO.1850 OF 2011 (RES)
Between:
1. Mrs. K.Thankam
W/o. David, Christian
Aged about 59 years
R/at. Flat No.4, Ground Floor
Gulshan Apartment
Silva Lane, Kankanady
Mangaluru-02
2. Mr.David
S/o. John, Christian
Aged about 63 years
R/at. Flat No.4, Ground Floor
Gulshan Apartment
Silva Lane, Kankanady
Mangaluru-02. .... Appellants
(By Sri G.S.Bhat and V.Vijay Kumar, Advocates)
And:
Mr. Melville D'sa
S/o. Late James D'sa
Christian
Aged about 57 years
R/at. Flat No.203
Divya Deepa Archade
Bendorewell, Kankanady
Mangaluru
Represented by GPA holder
And his wife Mrs.Hazel D'sa ... Respondent
(By Sri Cyril Prasad Pais, Advocate)
2
This RSA is filed under Section 100 of CPC against
the judgment and decree dated 20.04.2011 passed in
R.A.No.16/2009 on the file of II Additional District Judge,
Dakshina Kannada, Mangaluru dismissing the appeal and
confirming the judgment and decree dated 15.12.2008
passed in O.S.No.137/2006 on the file II Additional Civil
Judge (Sr.Dn), Mangaluru, D.K.
This appeal coming on for Admission this day, the
Court delivered the following:
JUDGMENT
This Regular Second Appeal is filed by the defendants challenging the judgment and decree of the Courts below directing ejectment of the defendants from the suit premises.
2. For the sake of convenience, the parties in this judgment are referred to as they were arrayed before the trial Court. The appellants were the defendants while the respondent was the plaintiff before the trial Court.
3. It is not in dispute that the defendants were the tenants in the suit premises. It is also not in dispute that the plaintiff was the owner of the suit premises. Likewise, it is not in dispute that the 3 plaintiff had caused a notice of termination of tenancy, which was received by the defendants and the defendants also replied to the said notice.
4. The Trial Court, having regard to the possession of the suit property by defendants and the admitted jural relationship between the plaintiff and defendants, passed a judgment and decree directing the defendants to quit and deliver the vacant possession of the suit premises within three months from the date of judgment and decree. An appeal which was preferred there from by the defendants before the First Appellate Court was also dismissed. The defendants have therefore filed the present Regular Second Appeal challenging the judgment and decree of the Courts below.
5. When the appeal was listed for admission, learned counsel for the respondent submits that the possession of the suit premises was recovered from the defendants in Execution Petition No.77/2011 on 4 the file of II Additional Civil Judge (Senior Division), Mangaluru, in terms of the delivery warrant dated 02.12.2011. It is stated that therefore this Regular Second Appeal would not survive for consideration.
6. On the other hand, learned counsel for the appellants would contend that the plaintiff had executed an agreement of sale of the suit premises to the defendants and therefore, the execution of the judgment and decree of ejectment by the plaintiff would be inconsequential and that the appeal cannot be dismissed at its threshold. It is seen from Ex.P7 agreement of sale, which was executed by the plaintiff in favour of the defendants that the possession of the suit premises was not delivered to the defendants.
7. On the contrary, it is claimed that the possession of the suit premises by the defendants as tenants was continued. This in itself would not mean that the defendants were placed in possession of the suit property under the agreement of sale and 5 therefore, the defendants cannot claim that their possession is on account of the part performance of the agreement of sale. Since the defendants have already filed a suit for specific performance, which was initially dismissed by the Trial Court and thereafter, confirmed in appeal by the First Appellate Court and the Regular Second Appeal filed before this Court is pending consideration in R.S.A. No.1851/2011.
8. In view of Section 55(1)(f) of the Transfer of Property Act, 1882 and Section 22 of the Specific Relief Act, 1963, it goes without saying that in case the appellant succeeds in the suit for specific performance, they would be entitled to recover back possession of the suit property from the defendants. In that view of the matter, since the present Regular Second Appeal relates only to the judgment and decree of ejectment of the defendants as tenants from the suit premises and in view of the fact that the suit 6 premises is delivered to the plaintiff in Execution Petition No.77/2011 on the file of II Additional Civil Judge (Senior Division), Mangaluru, no purpose would be served in keeping the present appeal pending. Hence, this appeal is dismissed.
However, in the event the plaintiff succeeds in his suit for specific performance, the plaintiff would be entitled to recover possession of the suit premises pursuant to the provisions contained in Section 22 of the Specific Relief Act, 1963 and Section 55(1)(f) of the Transfer of Property Act, 1882.
Consequently, I.A.No.2/2011 would not survive for consideration.
Sd/-
JUDGE PYR