Karnataka High Court
Zakiya Begum W/O Late Mohamemd Abdul ... vs Dr. M.A.Salam S/O Soudagar Moinuddin on 17 August, 2015
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
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IN THE HIGH COURT OF KARNATAKA
GULBARGA BENCH
DATED THIS THE 17TH DAY OF AUGUST, 2015
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
REGULAR SECOND APPEAL NO.7313/2013
C/W
REGULAR SECOND APPEAL NO.7182/2010
RSA 7313/2013
BETWEEN
1. ZAKIYA BEGUM
W/O LATE MOHAMEMD ABDUL HAMEED
SINCE DECEASED BY L.RS.
2. MOHAMMED JAMEEL AHEMD
S/O MOHD. ABDUL HAMEED,
AGE: 42 YEARS,
3. MOHD. ABDUL WAHID
S/O LATE MOHD. ABDUL HAMEED,
DEAD BY LRS,
3A) SMT. BANU BEGUM
W/O LATE MOHD ABDUL WAHEED.
AGE: 41 YEARS.
B) MOHD. ABDUL WAJEED
S/O LATE MOHD. ABDUL WAHEED
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AGE: 29 YEARS
C) MOHD. ABDUL KHALID
S/O LATE MOHD. ABDUL WAHEED,
AGE: 26 YEARS,
D) MOHD. ABDUL AHAMED
S/O LATE MOHD. ABDUL WAHEED,
AGE: 23 YEARS,
E) MOHD. ABDUL SHAHID
S/O LATE MOHD. ABDUL WAHEED,
AGE: 20 YEARS,
F) FARHAT BANU
D/O LATE MOHD ABDUL WAHEED
AGE: 22 YEARS,
G) MOHD. ABDUL WAHID
S/O LATE MOHD. ABDUL WAHEED,
AGE: 17 YEARS, MINOR,
H) MOHD. ABDUL MAJEED
S/O LATE MOHD. ABDUL WAHEED,
AGE: 16 YEARS, MINOR,
THE APPELLANT NO.3 (G) TO (H) ARE
MINORS REP. BY THEIR GUARDIAN,
MOTHER SMT. BANU BEGUM ABOVE
NAMED & ALL ARE R/O H. NO. 2-2-42
KOT TALAR, RAICHUR-584104.
4. MOHD. RIYAZ AHEMD
S/O LATE MOHD. ABDUL HAMEED,
AGE: 34 YEARS,
5. MOHD. ARIF AHMED
S/O LATE MOHD. ABDUL HAMEED,
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AGE: 32 YEARS,
6. MOHD. NASIR AHEMD
S/O LATE MOHD. ABDUL HAMEED,
AGE: 28 YEARS,
THE ALL APPELLANTS 4 TO 6 ARE BUSIENSS
& R/O H. NO. 2-5-59, JHANDA KATTA KOT
TALAR, ANDROON QUILLA, RAICHUR-584101.
APPELNTS 2, 5 & 6 ARE REP. BY POWER OF
ATTORNEY HOLDER APPELLANT NO.4
APPELLANT NO.3 (G) & (H) ARE THE
MINOR REPRESENTED BY MOTHER 3(A)
... APPELLANTS
(BY SRI: LIYAQAT FAREED USTAD, ADV.)
AND
DR. M.A.SALAM
S/O SOUDAGAR MOINUDDIN
AGE: 60 YEARS, OCC: DOCTOR,
R/O KOPPAL-567890
... RESPONDENT
(BY SRI: MANVENDRA REDDY, ADV. FOR C/R)
THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 05.08.2013 PASSED IN
R.A. NO. 7/2008 ON THE FILE OF THE ADDL. SENIOR
CIVIL JUDGE AT RAICHUR. WHEREIN, THE APPEAL WAS
ALLOWED & THE JUDGEMENT AND DECREE DATED
22.01.2008 PASSED IN O.S. NO. 1/2004 ON THE FILE OF
THE ADDL. CIVIL JUDGE (JR.DN.) AT RAICHUR WAS SET
ASIDE.
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RSA 7182/2010
BETWEEN
1. M ABDUL HAMEED
S/O MOHD. SAIFUDDIN
SINCE DECEASED BY HIS LRS.
A. ZAKIYA BEGUM
W/O LATE MOHD ABDUL HAMEED
AGE: 56 YEARS,
B MOHAMMED JAMEEL AHMED
S/O LATE MOHD ABDUL HAMEED
AGE: 39 YEARS,
C. MOHD ABDUL WAHEED
W/O LATE MOHD ABDUL
HAMEED, DEAD BY LRS.
C(i) SMT BANU BEGUM
W/O LATE MOHD ABDUL WAHEED
AGE: 41 YEARS,
C(ii) MOHD ABDUL WAJEED
S/O LATE MOHD ABDUL WAHEED,
AGE: 26 YEARS,
C(iii) MOHD ABDUL KHALEED
S/O LATE MOHD ABDUL WAHEED,
AGE: 23 YEARS,
C(iv) MOHD ABDUL HAMEED
S/O LATE MOHD ABDUL WAHEED,
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AGE: 21 YEARS,
C(v) MOHD ABDUL SHAHID
S/O LATE MOHD ABDUL WAHEED,
AGE: 18 YEARS,
C(vi) FARHAT BANU
D/O LATE MOHD ABDUL WAHEED,
AGE: 20 YEARS,
C(vii) MOHD ABDUL NAHID
S/O LATE MOHD ABDUL WAHEED,
AGE: 15 YEARS, MINOR,
C(viii) MOHD MAJEED
S/O LATE MOHD ABDUL WAHEED,
AGE: 13 YEARS,
THE APPELLANTS NO.C(VII) 7 C(VIII)
ARE MINOR REP BY THEIR GURDIAN MOTHER
SMT BANU BEGUM ABOVE NAMED
D. MOHD RIYAZ AHMED
S/O LATE MOHD ABDUL HAMEED,
AGE: 31 YEARS,
E. MOHD ARIF AHMED
S/O LATE MOHD ABDUL HAMEED,
AGE: 29 YEARS,
F. MOHD NASIR AHMED
S/O LATE MOHD ABDUL HAMEED,
AGE: 24 YEARS,
G. SAJIDA BEGUM
D/O LATE MOHD ABDUL HAMEED,
AGE: 41 YEARS,
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H. HABIBA BEGUM
D/O LATE MOHD ABDUL HAMEED,
AGE: 38 YEARS,
I. NASIMA BEGUM
D/O LATE MOHD ABDUL HAMEED,
AGE: 36 YEARS,
J. SHAMEEM BEGUM
D/O LATE MOHD ABDUL HAMEED,
AGE: 33 YEARS,
ALL ARE R/O H.NO.2-2-42 KOTI TALAR
RAICHUR.
... APPELLANTS
(BY SRI. LIYAQAT FAREED USTAD, ADVOCATE)
AND
DR. M A SALAM
S/O SOWDAGAR MOINUDDIN,
AGE: ABOUT: 55 YEARS,
OCCU-MEDICAL OFFICER,
R/O KOPPAL-567890.
... RESPONDENT
(BY SRI. MANVENDRA REDDY ADVOCATE )
THIS RSA FILED U/S.100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD:10.02.10 PASSED IN
R.A.NO.53/08 ON THE FILE OF THE PRL. DIST JUDGE
RAICHUR, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGEMENT AND DECREE DTD: 03.06.08 PASSED
IN OS NO. 190/1999 ON THE FILE OF THE PRL. CIVIL
JUDGE (SR.DN) JUDGE RAICHUR.
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THESE APPEALS COMING ON FOR ARGUMENTS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The main appeal filed under Section 100 of CPC in RSA No.7313/2013, is directed against the divergent judgment passed in R.A.No.7/2008 which was pending on the file of the Addl. Senior Civil Judge, Raichur. The said appeal had arisen out of the judgment and decree passed in O.S.No.1/2004 dismissing the suit, which was pending on the file of the Addl. Civil Judge (Jr.Dn) Raichur. Plaintiff of O.S.No.1/2004 had filed a suit for eviction against these appellants relating to the schedule property mentioned in the suit. The appellants herein had contested the said suit mainly on the ground that there was no relationship of landlord and tenant and that the said relationship had merged with the agreement of sale executed by plaintiff/Dr.M.A.Salam on 06.11.1996. According to the 8 defendant therein, the suit itself was not maintainable either in law or on facts. On the basis of the pleadings of the parties in O.S.No.1/2004 following three issues and two additional issues came to be framed.
(a) Whether the plaintiff proves that there exists a relationship of land lord tenant between himself and the defendants?
(b) Whether the plaintiff is entitle for the reliefs sought?
(c) What decree? What order?
Additional Issue
(a) Whether the plaintiff proves that the tenancy of the defendants in schedule premises has been terminated in accordance with provisions of T.P.Act?
(b) Whether the plaintiff further proves that, the defendants have not paid rentals to the extent of Rs.38,700/- for the period 9 from 01.04.1993 to 31.12.203 at the rate of Rs.300/- per month to him?
Ultimately, Dr.M.A.Salam was examined as PW.1 and got marked 8 exhibits. Two witnesses have been examined on behalf of the defendants and 7 exhibits have got marked inclusive of agreement of sale dated 11.04.1990 which has been marked as Ex.D.6.
2. After hearing the arguments the learned trial Judge has answered issue Nos.1 and 2 in the negative and additional issues also in the negative. Ultimately, the suit came to be dismissed as against the said judgment and decree an appeal was filed in terms of Section 96 of CPC before the First Appellate Court in R.A.No.7/2008. The said appeal has been allowed by framing following points for consideration as found in paragraph No.12;
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(i) Whether the appellant proves the jural relationship of land lord and tenant between appellant and respondents?
(ii) Whether the appellant is entitled for vacant possession of the suit schedule property?
(iii) Whether the appellant is entitled for arrears of rent to the tune of Rs.38,700/- from the respondents?
(iv) Whether the judgment and decree of the Court below calls for any interference by the hands of this Court?
(v) What decree or order?
All the four points have been answered in the affirmative and suit has been decreed, the learned Judge of the First Appellate Court has specifically held that the alleged agreement of sale is of the year 1990 and as such the suit of the plaintiff is barred by time and that the agreement had not merged with the tenancy.
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3. Following substantial question of law has been came to be framed on 19.02.2015 in this appeal No.7313/2013.
"Whether the first Appellate Court has committed any serious error in holding that there exists a jural relationship of landlord and tenant between the appellant and the respondent and that it has committed any serious legal error in reversing the judgment of the Trial Court directing the defendants to deliver the vacant possession of the suit schedule property in favour of the plaintiff?"
4. The connected R.S.A.No.7182/2010 has arisen out of the divergent judgment passed in R.A.No.53/2008, which was pending on the file of the Prl. District Judge at Raichur, which in turn had arisen out of the judgment and decree passed in O.S.No.190/1999 a suit filed by the appellants for the relief of specific performance on the basis of agreement of sale dated 06.11.1996. The suit filed by the plaintiffs 12 had been decreed and the appeal filed by the plaintiff has been allowed and thus the judgment of the trial Court has been set aside. Following are the issues framed in O.S.No.190/1999;
(i) Whether plaintiff proves that the defendant entered into an agreement of sale with the plaintiff in the year 1986, 1987, 1990 and 1996 in respect of the suit schedule property and received a part sale consideration of rupees in all 1,45,000/- as earnest money out of Rs.2,70,000/-?
(ii) Whether plaintiff proves that the defendant evaded the performance of his part of contract?
(iii) Whether plaintiff proves that he has been always ready to perform his part of contract?
(iv) Whether plaintiff is entitled for a decree as prayed for?
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(v) Whether defendant proves that since the plaintiff has violated the conditions the entire advance amount stands forfeited as per last agreement of sale dated 11.01.1990?
(vi) What order or decree the parties are entitled to?
After recording the evidence issue Nos.1 to 5 had been answered in the affirmative and in the appeal point No.1 came to be answered in the affirmative and point No.2 in the negative appeal filed by the plaintiff is allowed.
5. Following substantial question of law framed in R.S.A.No.7182/2010 on 09.07.2010;
"Whether the finding of the Appellate Court that the suit for specific performance is not filed within the time, when the plaintiffs are put in possession as a tenant is in accordance with law'?14
6. Deceased M.Abdul Hameed relied upon the agreement of sale dated 06.11.1996 to seek the relief of specific performance of the contract long before the alleged execution of agreement of sale of 1986, 1987 and 1990. Sri M.Abdul Hameed had been inducted as tenant by Dr.M.A.Salam's father. Ex.P.10 dated 06.11.1996 is stated to be an agreement of sale. Out of three attestor witnesses only PW.3/Chand Pasha has been examined. Dr.M.A.Salam and Mr.Mohinuddin as DWs.1 and 3 the remaining attestors have deposed in favour of Dr.M.A.Salam the defendant therein. At the relevancy point of time Dr.M.A.Salam was working as medical officer in the Government Hospital at Kustagi, which was at a distance of 170 Kms from Raichur and on 06.11.1996 he was on his duty at that place. The authenticity of Ex.P.10 has been greatly doubted by the First Appellate Court i.e. Court of Prl. District Judge at Raichur. Serious contradictions elicited from the mouth 15 of attesting witnesses have been taken note of by the First Appellate Court. Valid reasons have been assigned by the First Appellate Court, after re-appreciating the evidence placed on record, to hold that Ex.P.10 is a very doubtful document. The relief of specific performance is an equitable relief and in order to get such an equitable relief party relying on the agreement of sale should adduce satisfactory evidence. In the absence of such satisfactory evidence party will not be entitled for such an equitable relief.
7. The learned Judge of the First Appellate Court has specifically held that Ex.P.10 is not proved and therefore appeal has been allowed. The alleged possession is not under the strength of document and therefore protection of such a possession in terms of Section 53 A of Transfer of Property does not arise. 16
8. Accordingly, substantial question of law framed on 09.07.2010 in RSA No.7182/2010 is answered in the negative. In so far as main appeal is concerned the learned Judge of the First Appellate Court has specifically held that there was relationship of land lord and tenant between the appellant and the respondent. It is also specifically held that the suit of the plaintiff is barred by limitation. From the mouth of PW.1 i.e. Md.Riyaz useful admissions have been elicited to support the case of plaintiff/Dr.M.A.Salam. He has admitted that since 1987 no rent had been paid by his father since an agreement of sale came into effect. The same had been taken on a rent of Rs.300/- and DW.1 has further admitted that agreement of sale dated 15.04.1986, 16.02.1987 and 11.04.1990 marked as Ex.P1, Ex.D1 and Ex.D2 speak about their relationship of landlord and tenant between the father of the plaintiff and the father of defendants. Unless there is a specific 17 clause in the agreement of sale about the suspension of tenancy and merging of tenancy with the agreement of sale, suit for eviction would be perfectly maintainable.
9. In fact suit had been filed only after valid termination of tenancy. In the reply notice the defendants had contended that they are agreement holders. Nowhere they have denied valid termination of the tenancy. The First Appellate Court has held that mere suppression of tenancy suit is not a ground to dismiss the suit, if plaintiff is otherwise entitled for the relief's under the law. The defendants have been holding over the property and plaintiff has been able to prove the jural relationship of landlord and tenant. Therefore, question of limitation does not arise.
10. The learned Judge of the First Appellate Court has properly re-appreciated the entire evidence in right perspective. No perversity or illegality is found in the 18 approach adopted by the First Appellate Court. Accordingly, substantial question of law is answered in the negative. Consequently, both these appeals will have to be dismissed.
11. Accordingly, I pass the following:
ORDER Both the appeals filed under Section 100 of CPC are dismissed.
In view of the dismissal of the appeals, Misc. Civil No.152945/2010 filed in RSA No.7182/2010 do not survive for consideration.
Sd/-
JUDGE msr