Karnataka High Court
Sri.Nandakumar S/O Vishwanath Panare vs Mrs.Suganda W/O Suhas Bhutki on 28 July, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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RSA No.100492/2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
REGULAR SECOND APPEAL NO.100492 OF 2019 (INJ)
BETWEEN
SRI. NANDAKUMAR
S/O VISHWANATH PANARE,
AGE: 65 YEARS, OCC: BUSINESS,
R/AT: V.P.NO.100, LAXMI GALLI,
HALAGA, BELAGAVI,
DIST: BELAGAVI-590002.
...APPELLANT
(BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE)
AND
1. MRS. SUGANDA
W/O SUHAS BHUTKI
AGE: 53 YEARS, OCC: HOUSEWIFE,
R/AT: 40/53, TANAJI GALLI, BELAGAVI,
Digitally
DIST: BELAGAVI-590002.
signed by
SUJATA
SUJATA SUBHASH
SUBHASH PAMMAR
PAMMAR Date:
2. MRS. POOJA W/O RAVINDRA MALSHET
2023.07.28
13:23:08 -
0700
AGE: 43 YEARS, OCC: HOUSEWIFE,
R/AT: 3414, GONDHALI GALLI,
BELAGAVI, DIST: BELAGAVI-590002.
...RESPONDENT
(BY SRI. SHREEVATSA S HEGDE, ADVOCATE FOR R1 AND R2)
THIS RSA IS FILED U/SEC.100 OF CPC, AGAINST THE
JUDGEMENT & DECREE DATED 02.11.2018 PASSED IN
R.A.NO.220/2017 ON THE FILE OF THE I-ADDITIONAL SENIOR CIVIL
JUDGE AND CHIEF JUDICIAL MAGISTRATE, BELAGAVI, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DTD:02.11.2017, PASSED IN O.S. NO.109/2013 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
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RSA No.100492/2019
BELAGAVI, DECREEING THE SUIT FILED FOR MANDATORY
INJUNCTION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
24.07.2023, COMING ON FOR PRONOUNCEMENT, THIS DAY COURT
DELIVERED THE FOLLOWING.
JUDGMENT
This is an appeal filed by the defendant challenging the judgment and decree dated 02.11.2017 in O.S.No.109/2013 passed by the Principal Civil Judge, Belagavi, which was confirmed by the I-Additional Senior Civil Judge, Belagavi in R.A.No.220/2017 vide judgment dated 02.11.2018.
2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the Trial Court.
3. The brief factual matrix leading to the case are that the plaintiffs have instituted a suit seeking mandatory injunction against the defendant directing him to quit and deliver the actual vacant possession of the suit property bearing V.P.No.100 situated in Laxmi Galli, Halga village. It is asserted that the suit schedule house property was earlier owned and possessed by one Sridhar Mahadev Satwani by virtue of registered sale deed dated 30.10.1948 and he was -3- RSA No.100492/2019 in possession and occupation. It is asserted that the plaintiffs are the daughters of said Sridhar Satwani and on 16.12.2004 he executed a gift deed in favour of the plaintiffs pertaining to suit schedule property. That the defendant is the distinct relative of Sridhar Satwani and as he was in need of residence and as he requested, the plaintiff's father Sridhar accommodated him for his personal use. However, subsequently, the plaintiffs required the suit schedule premises for their personal use and they called upon the defendant to vacate it. But the defendant went on postponing the same. The legal notice was issued to terminate the licence on 13.12.2012 and inspite of receipt of notice, the defendant has not vacated the suit premises. Hence, this suit.
4. The defendant has appeared and filed the written statement denying the allegations and assertions made in the plaint. He admits that suit premises was purchased by father Mahadev Satwani in 1948, but it is asserted that the original owner was one Ganesh Panare. He was close relative of Sridhar Satwani and Vishwanath Panare and as he was in financial crisis, he offered to sell the suit property. The value -4- RSA No.100492/2019 of the suit property was fixed at Rs.1,000/- which was not affordable alone by Sridhar Satwani and hence, the father of defendant-Vishwanath Panare came forward to help him and contributed Rs.500/- and it was orally agreed that Vishwanath Panare would erect new building in dilapidated structure and both Sridhar Satwani and Vishwanath Panare live together and there was an agreement for entering their names jointly. It is further asserted that Vishwanath Panare, in 1953, erected individual building by spending amount from his own and his name was entered in property records. It is also alleged that from 1953 to 1997 Sridhar Satwani and Vishwanath Panare were residing jointly in the suit premises and there are material alterations carried by the father of the defendant in the suit premises and hence, the question of licence and termination of licence does not arise at all. He has disputed the other contentions and sought for dismissal of the suit.
5. On the basis of the pleadings, the Trial Court framed following eight issues:
1. Whether plaintiffs prove that, defendant is in possession of suit schedule property as -5- RSA No.100492/2019 a lecensee without paying any rent as pleaded in the plaint?
2. Whether plaintiffs prove that, relationship between the plaintiffs and defendant is licensor and licensee?
3. Whether plaintiffs prove that, they have terminated the licence of the defendant by issuing valid notice as pleaded in the plaint?
4. Whether defendant proves that description of suit schedule property is not correct?
5. Whether defendant proves that suit is not maintainable?
6. Whether defendant proves that suit is bad of non-joinder of necessary party?
7. Whether plaintiffs are entitled the relief of mandatory injunction as sought for?
8. What order or decree?
6. The plaintiff No.2 was examined as PW1 and placed reliance on documents marked at Ex.P1 to Ex.P13, while defendant got examined himself as DW1 and placed reliance on documents marked at Ex.D1 to Ex.D18. One witness was also examined on behalf of the defendant as DW2.
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7. After appreciating the oral as well as documentary evidence, the Trial Court has answered issues 1 to 3 and 7 in the affirmative, while issues 4 to 6 were answered in the negative and decreed the suit. Being aggrieved by this judgment and decree of the Trial Court, the defendant approached the I-Additional Senior Civil Judge, Belagavi in R.A.No.220/2017. However, the First Appellate Court after re-appreciating the oral as well as documentary evidence, has dismissed the appeal and confirmed the judgment and decree of the Trial Court.
8. Being aggrieved by these concurrent findings, the appellant-defendant is before this Court by way of this second appeal.
9. While admitting the appeal on 07.07.2023, this Court framed the following substantial questions of law:
"Whether both the Courts below are justified in decreeing the suit in view of bar under Section 60(b) of the Indian Easements Act, 1882 to revoke the license?"
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10. Heard the arguments advanced by the learned counsel for the appellant and the learned counsel for respondent. Perused the records.
11. The learned counsel for the appellant-defendant would contend that the property was jointly purchased and there was an oral agreement, but however the sale deed was in favour of the father of the plaintiffs. It is also asserted that during the lifetime of the father of the plaintiffs, he has not taken any steps for seeking possession and they were all residing together. He further argues that the father of the defendant i.e. Vishwanath Panare has demolished and reconstructed the entire structure and hence under Section 60(b) of the Indian Easements Act, 1882 (for short "the Easements Act"), the question of revoking the licence does not arise at all as the claim of the plaintiff falls under Section 60(b) the Easements Act. As such, he would seek for allowing the appeal by setting aside the judgment and decree passed by both the Courts below.
12. Per contra, learned counsel for the plaintiffs would support the judgment and decree passed by both the Courts below. He would contend that for revocation of -8- RSA No.100492/2019 licence, foundation was not at all laid down and provisions of Section 60(b) of the Easements Act cannot be invoked as it is not the case of the defendant that he was permitted and was licensee and all along he is asserting joint ownership over the suit property by claiming half share in it. Hence, he would contend that the defendant is estopped under Section 114 and 115 of the Evidence Act from raising a plea of revocation of licence. He would also contend that as per the convenience, different pleas were being taken in the defence by defendant and having admitted the title, it is to be presumed that anything attached to the earth is belonging to the ownership of a person, who is holder of title of the land. He would further assert that both the Courts below have appreciated the oral as well as documentary evidence in detail and rightly dismissed the suit, which does not call for any interference and sought for dismissal of the appeal.
13. Having heard the arguments and perusing the records, it is evident that the defendant is taking inconsistent stands. Admittedly, the suit schedule property is standing in the name of father of the plaintiffs by name Sridhar Satwani and the original sale deed is at Ex.P9. If at all there was a -9- RSA No.100492/2019 joint purchase as asserted by the defendant in his written statement and in his evidence, there could have been sale deed in the joint name. Even the father of the defendant- Vishwanath never asserted his title over the suit property to the extent of half share seeking partition.
14. All along it is asserted by the defendant that when the property was purchased, it was in dilapidated condition and the father of the defendant under oral agreement demolished and restructured it and was in possession of the suit property jointly with the father of the plaintiffs. But admittedly, no documents have been produced to substantiate the contention of the defendant that the father of the defendant has demolished and reconstructed the suit house. Admittedly, the age of the defendant is around 61 years when he has given evidence. In view of this aspect, he was born after 1951-52 and as such, whatever evidence he has led is hearsay evidence. He has not examined any independent witnesses to prove that his father has in fact reconstructed the house.
15. Interestingly, the reply notice of the defendant is also relevant, which is produced at Ex.P7. In the written
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RSA No.100492/2019statement, the defendant has set up a plea regarding joint purchase and joint ownership, but no such defence is set up in reply notice marked at Ex.P7 issued by the counsel for defendant. However, in the said notice the defendant has set up claim of exclusive title over the suit property. He never asserted a joint title and contended that when he is owner, the question of licence does not arise at all. But quite inconsistently in the written statement he has set up a new plea regarding joint purchase and contribution as well as reconstruction. These facts are not pleaded in the reply notice.
16. Even in the cross-examination, DW1 pleaded ignorance that Sridhar Satwani has purchased the suit property from his own income when a suggestion was put to him and that clearly discloses that he had no knowledge and his evidence is based on hearsay. Even he has also admitted that his father has not taken any steps in filing suit for partition asserting joint purchase. Admittedly, the sale deed was standing in the name of the father of the plaintiffs and that was never challenged.
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17. No doubt, the name of the father of the defendant was mutated to the suit property in between, but subsequently after issuing notice to the father of the defendant, his name was deleted by entering the name of the plaintiffs. This order of the Panchayath was also not challenged by the father of the defendant and defendant himself is taking inconsistent and contrary stands. When the defendant is disputing his licence, he cannot take advantage of Section 60(b) of the Easements Act, as at one stage he is asserting joint ownership and at another stage he asserted exclusive ownership over the suit property.
18. When the defendant has failed to prove the demolition and reconstruction over the suit property, the question of considering his defence regarding section 60(b) of the Easements Act, does not arise at all. The defendant has failed to prove that he is occupying the premises in an individual capacity and he has constructed structure with the permission of the owner by making material alterations. Except the hearsay evidence of DW1, there is nothing on record. The evidence of DW2 does not assist the defendant in any way in view of fact that subsequently the name of
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RSA No.100492/2019father of defendant is deleted. The tax paid receipts will not assist the defendant in any way as admittedly the defendant is in possession.
19. The defendant is required to prove his interest over the suit property and he is taking inconsistent stands regarding exclusive title and joint title. But now it is argued that the suit is hit by the provisions of section 60(b) of the Easements Act. When the defendant himself is taking inconsistent stands, now he is estopped from raising a defence under section 60(b) of the Easements Act. Even otherwise, he has failed to establish that the house in dilapidated condition was demolished and reconstructed by him. Under such circumstances, the question of interfering with the judgment and decree of the Trial Court, which is confirmed by the First Appellate Court does not arise at all. Both the Court below are justified in decreeing the suit as the bar under section 60(b) of the Easements Act does not apply to the case of the plaintiffs. Admittedly, the gift deed is in favour of the plaintiffs and defendant does not have any right to challenge the gift. Under these circumstances, the substantial questions of law is answered in the affirmative in
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RSA No.100492/2019favour of the plaintiffs and accordingly, suit being devoid of any merits, does not survive for consideration and needs to be dismissed. Accordingly, I pass the following:
ORDER The appeal stands dismissed with costs.
In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly.
Sd/-
JUDGE YAN