Karnataka High Court
Sri H T Arvind Rao vs P Devadas Shetty Since Dead By Lrs Smt ... on 21 April, 2023
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF APRIL, 2023
BEFORE
THE HON'BLE MRS. JUSTICE M G UMA
REGULAR SECOND APPEAL NO. 506 OF 2022 (POS)
BETWEEN:
1. SRI. H.T. ARVIND RAO
S/O LATE H.T. JAYARAM RAO,
AGED ABOUT 43 YEARS,
2. SMT. H.T. SHRIMATHI RAO
W/O LATE H.T. JAYARAM RAO,
AGED ABOUT 74 YEARS,
APPELLANTS 1 AND 2 ARE BOTH
R/AT D NO.7-4-729/1,
OPP. HOTELNAVANEETH,
M.G. ROAD, KODIALBAIL,
MANGALURU - 575 003
... APPELLANTS
(BY MR: A. MADHUSUDHANA RAO, ADVOCATE)
AND:
P. DEVADAS SHETTY
SINCE DEAD BY LRS
1. SMT. VISHALA D. SHETTY
W/O LATE P. DEVADAS SHETTY,
AGED ABOUT 59 YEARS,
R/AT SOUMYA MALLIKA EXTENSION
KADRI KAMBLA ROAD BAJPE,
MANGALURU - 4
2. DR. SOUMYA SHETTY
D/O LATE P. DEVADAS SHETTY
W/O DR VIJAYDAS SHETTY
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AGED ABOUT 36 YEARS,
R/AT C-63, 10TH FLOOR,
ESSENCE BUILDING,
ANNE TOPE HILL,
VADALA EAST,
MUMBAI - 37
3. SMT. SMITHA HEGDE
D/O LATE P. DEVADAS SHETTY
W/O SRI. CHANDAN SHETTY
AGED ABOUT 35 YEARS,
R/AT FLAT NO.403,
SSK ENCLAVE, 12TH CROSS,
22ND MAIN ROAD,
RAGHAVENDRA LAYOUT,
NEAR RAVI GAS AGENCY,
PADMANABHA NAGAR,
BANGALORE - 70.
... RESPONDENTS
(BY MR: K. ANANDARAM, ADVOCATE FOR C/R-1 & R-2 & R-3)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 15.02.2022 PASSED IN
RA.NO.171/2017 ON THE FILE OF I ADDL. SENIOR CIVIL JUDGE,
MANGALURU DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 22.08.2017 PASSED IN OS.
NO.613/2007 ON THE FILE OF THE PRL. CIVIL JUDGE,
MANGALURU.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 14.11.2022 COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Even though the matter is listed for admission, with the consent of learned counsel for both the parties, the same is taken up for final disposal.
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2. The defendants are before this Court impugning the judgment and decree dated 22.08.2017 passed in O.S.No.613/2007 on the file of the learned Principal Civil Judge, Mangaluru, D.K., (hereinafter referred to as 'the trial Court' for brevity), decreeing the suit of the plaintiffs in part and declaring that they are entitled to get vacant possession of the schedule property, directing the defendants to hand over the possession of the same to the plaintiffs within three months from the date of the order and to pay rent at the rate of Rs.5,000/- from 01.08.2007 till delivery of possession, which was confirmed vide judgment dated 15.02.2022 in R.A.No.171/2017 on the file of the learned I Additional Senior Civil Judge and CJM, Mangaluru (hereinafter referred to as 'First Appellate Court' for brevity) by dismissing the appeal.
3. For the sake of convenience, parties are referred to as per their status and rank before the Trial Court.
4. Brief facts of the case are that the plaintiffs filed the suit against the defendants seeking direction to quit and surrender the vacant possession and also pay mesne profit at the rate of Rs.30,000/- from 01.11.2007 till delivery of possession at the same rate. It is contended by the plaintiff 4 that he is the absolute owner being the perpetual lessee of the schedule property which was originally belonging to the deity Sri. Venkatramana Devaru of Sri. Venkatramana Temple, Carstreet, Mangalore, as Moolagar (wargadar). The moolageni right was acquired and enjoyed by Annrita Suvaries and Lawrence Chouthies as perpetual lessees who are the wife and son of Daniel Chouthies. The said Daniel Chouthies is the son of Vakil Antony Juvam Chouthies. The lessees under the registered moolageni transfer deed dated 17.09.1888, transferred the moolageni right in favour of Lawrence Lobo. Later it was transferred by Lawrence Lobo in favour of C.C.Fernandes under the registered moolageni transfer deed. Subsequently, the moolageni right was transferred in favour of Mrs. Theresa Marsian Saldana Bai vide registered document dated 10.06.1902 and thereafter, in favour of Mrs. Martha Maria Pinto alias Alvaries Bai on 16.11.1931. The said Mrs. Martha Maria Pinto alias Alvaries Bai transferred the vola moolageni right in the schedule property under the registered deed dated 19.02.1934 in favour of Mrs. Estapin Pinto Bai, who in turn executed vola moolageni edruvali chit dated 19.02.1934 in favour of Mrs. 5 Martha Maria Pinto alias Alvaries Bai and therefore, Mrs. Estapin Pinto became the vola moolagenidar of the schedule property under moolagenidar Mrs. Martha Maria Pinto alias Alvaries Bai.
5. It is further contended that Mrs. Estapin Pinto transferred the vola moolageni right in favour of Smt. Sanjeevi Bai under the registered transfer deed of vola moolageni dated 15.05.1941 and the said Sanjeevi Bai transferred the schedule property in favour of Surendra Rao under the registered deed dated 14.12.1951. Surendra Rao in turn executed the registered deed transferring the vola moolageni right in favour of the father and mother of the plaintiff under the registered deed of vola moolageni right dated 24.03.1963.
6. It is also contended that Mrs. Martha Maria Pinto alias Alvaries Bai in the mean time transferred her moolageni right to an extent of 29.5 and 10.5 cents (northern and south middle portions) in the schedule property along with other properties in favour of her son-in-law i.e., Raymond Sequeira under the registered moolageni transfer deed dated 6 11.07.1940. The said Raymond Sequeira died leaving behind him his wife and children i.e., Emilia Sequeira, Mark Sequeira, Barnard Sequeira. Martha Maria Pinto alias Alvaries Bai also died intestate and her moolageni right in respect of the remaining extent in the schedule property on the north- western portion measuring 0.23 acres had devolved on her daughter Emilia Sequeira. Thus, entire moolageni right of late Martha Maria Pinto alias Alvaries Bai had devolved on her daughter and grandchildren. Emilia Sequeira and her children have sold their moolageni right in respect of the schedule property along with other properties in favour of the plaintiff under the registered deed dated 25.05.1964 and thus the plaintiff has become perpetual lessee in respect of the schedule property, entitled to collect vola moolageni rent from vola moolagenidars including his father and mother.
7. It is contended that the father of the plaintiffs died on 09.11.1969 leaving behind his mother Smt. P.Honnamma Shetty, his brother and five sisters. Thus, half undivided vola moolageni right of his father had devolved on the plaintiffs, his mother, brother and five sisters equally. They have entered into an agreement of sale dated 7 19.01.1979 with Smt. Padmakshi agreeing to transfer vola moolageni right in her favour. Under the agreement, plaintiff and his mother transferred their undivided vola moolageni right of 10/16 in respect of the schedule property along with possession in favour of Smt. Padmakshi under the registered deed dated 27.01.1980 for a consideration amount of Rs.35,937/-.
8. It is contended that after the sale of undivided 10/16 right of vola moolageni right and parting with the possession of the schedule property by the plaintiff and his mother in favour of Smt. Padmakshi, she has filed a suit for specific performance against the brother and sisters of the plaintiff in O.S.No.107/1980 on the file of the learned Civil Judge (Sr.Dn), Mangalore, which has been later transferred and re-numbered as O.S.No.529/1989 on the file of learned II Additional Civil Judge (Jr.Dn), Mangalore. During the pendency of the suit, the sisters and brother of the plaintiff have transferred their 3/16 undivided vola moolageni right in favour of Smt.Padmakshi and defendant No.2 under the registered sale deed dated 25.05.1988 and the suit was continued against three sisters of the plaintiff who have not 8 joined in execution of the sale deed. During the pendency of the suit, the original plaintiff-Smt. Padmakshi died intestate and her legal representatives were not brought on record. Accordingly, the suit was dismissed as abated on 01.09.2001.
9. It is further contended that the remaining three sisters of the plaintiff still have their vola moolageni right in the schedule property and other properties. As per moolageni deed, vola moolagenidars i.e., Smt. Padmakshi and defendant No.2, who have purchased undivided vola moolageni right and three sisters of the plaintiff are required to pay vola moolageni of Rs.31.50/- to the plaintiff. Defendant No.2 and Smt. Padmakshi have not paid the same in spite of repeated requests. On the other hand, after the dismissal of the suit O.S.No.529/1989 as abated, defendant No.2 appears to have fabricated a Will dated 30.04.1991 said to have been executed by Smt. Padmakshi and on the basis of the said Will, defendant No.2 executed the registered settlement deed dated 12.11.2003 settling the schedule property in favour of defendant No.1. The said deed is void and not binding on the plaintiff as his consent was not obtained for transferring the vola moolageni in favour of defendant No.1. Thereby, vola 9 moolageni tenancy of defendant No.2 got forfeited in favour of the plaintiff and defendant No.1 has not derived any vola moolageni right over the schedule property.
10. It is also contended that the plaintiff purchased the warga right in respect of the schedule property along with other properties from the owner Sri. Venkatramana Devaru of Venkatramana Temple, Carstreet, Mangalore, represented by its trustees under the registered sale deed dated 20.08.2005 and thus, the plaintiff has become the absolute owner of the schedule property along with other properties. It is stated that defendant No.1 on the basis of the fraudulent and illegal settlement deed, got mutated his name in the RTC by making misrepresentation and obtained the order from the Tahsildar on 19.10.2006. The plaintiff challenged the said order before the Assistant Commissioner, Mangalore. The said appeal was dismissed vide order dated 18.06.2007. The same was challenged by preferring the revision before the Deputy Commissioner, Mangalore, which was pending at the time of filing the suit.
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11. It is further contended that defendant No.1 in the meantime surrendered the portion of the schedule property measuring 0.16 cents without the consent and knowledge of the plaintiff, in favour of Mangalore City Corporation for formation of the road illegally. The defendants and Smt.Padmakshi have also failed to pay the rent to the plaintiff with reference to their vola moolageni right. Therefore, the plaintiff forfeited the vola moolageni tenancy and he is entitled for possession from defendant No.1 who is claiming to be the settlee of the schedule property.
12. It is contended that defendant No.1 by denying the title of the plaintiff is liable to surrender vacant possession of the schedule property. Plaintiff issued the legal notice on 01.08.2007 calling upon the defendants to pay the arrears of vola moolageni rent and quit and surrender the vacant possession of the schedule property in his favour. Defendant No.1 issued a reply dated 30.08.2007 by raising false and frivolous contentions and refusing to comply with the demand made in the notice. Therefore, the possession of the schedule property by the defendants is nothing but trespassers. Since the property is situated in prime locality in the city of 11 Mangalore, it is capable of fetching more than Rs.10,000/- as rent per month. The defendants are liable to pay the mesne profit from 01.08.2007 till they vacate and hand over the possession of the schedule property.
13. It is stated that the cause of action for the suit arose when the plaintiff came to know about the settlement deed dated 12.11.2003 in the month of March-2006 and when the defendants surrendered the portion of the schedule property in favour of Mangalore City Corporation without the knowledge and consent of the plaintiff and also subsequently, when the legal notice was issued and the reply was received. Therefore, the plaintiff sought for a direction to the defendants to quit and surrender the vacant possession of the schedule property and also to pay future mesne profit at Rs.30,000/- from 01.11.2007 till delivery of possession.
14. The schedule property is described as Non- agricultural immovable property held by the plaintiff on warga right, bearing R.S.No.320/1A with T.S.No.153/1A measuring 10.5 cents on the northern portion with residential building bearing Door No.4-7-729, old Door No.4-288 measuring 1400 12 Sq.ft. with trees etc., as per the boundaries mentioned therein.
15. The plaintiff has also sought for declaration that defendant No.1 is only a vola moolageni tenant having 13/16 right over the schedule property under the plaintiff, subject to the result of the suit in O.S.No.613/2007 on the file of the learned Principal Civil Judge, Mangalore and to intimate the same to the Tahsildar, Mangalore for effecting necessary changes in the mutation register and RTC.
16. During the pendency of the suit, the original plaintiff died and his legal representatives were brought on record.
17. Defendant Nos.1 and 2 have appeared before the Court and filed their written statement denying the contentions of the plaintiff. It is contended that upon the death of the father of the plaintiff, plaintiff became entitled to 1/16th undivided right in the vola moolageni right of the suit property and the plaintiff's brother and three sisters became entitled to 1/16th undivided right each and plaintiff's mother also entitled to 1/16th undivided along with her half share. It 13 is admitted that there was an agreement dated 19.01.1979 entered into between the plaintiff, his mother and brother and sisters with Smt. Padmakshi agreeing to sell moolageni right over the schedule property but denied that the said agreement was for transfer of vola moolageni right. It is also denied that under the deed of transfer only 10/16th undivided vola moolageni right was transferred by the plaintiff and his mother. It is admitted that three sisters of the plaintiff are having undivided 1/16th right each in the vola moolageni of the suit schedule property.
18. The defendants denied that as per the moolageni deed, Smt. Padmakshi and defendant No.2 are required to pay vola moolageni of Rs.31.50/- to the plaintiff or that they are the volamoolagenidars.
19. The contention of the plaintiff that after dismissal of O.S.No.529/1989, defendant No.2 fabricated the Will dated 30.04.1991 and on the basis of the said Will, executed registered settlement deed is denied. It is also denied that the said document is void document and it won't bind the plaintiff. The contention of the plaintiff regarding forfeiture of 14 the right of defendant Nos.1 and 2 is also denied. The defendants denied that the plaintiff purchased warga right from Sri. Venkatramana Devaru under the registered deed in respect of the plaint schedule property and thus, he has become the absolute owner.
20. It is contended by the defendants that the plaintiff acquired a fraction of vola moolageni right by inheritance from his father and moolageni right by purchase as stated in the plaint and sold both his moolageni and undivided vola moolageni right in favour of Smt. Padmakshi. Thus, Smt. Padmakshi got the right, title and interest over the schedule property and plaintiff has not retained any right with himself. The plaintiff has no right whatsoever over the schedule property and cannot maintain the suit. Since Smt. Padmakshi acquired moolageni right over the schedule property, besides 10/16th undivided vola moolageni right, the plaintiff cannot seek any relief. Therefore, the defendants prayed for dismissal of the suit with cost.
21. On the basis of these pleadings, the trial Court framed the following issues:
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1. Whether the plaintiff proves that there was a landlord and tenant relationship between the plaintiff and the defendants as alleged in the plaint?
2. If yes, the plaintiff further proves that defendants have committed default in payment of mulageni rent to the plaintiff as alleged?
3. Whether the tenancy has been terminated in accordance with law?
4. Whether the plaintiff further proves that the defendants got entered their name to the plaint schedule property by fraudulent and illegal menas and such the defendant are in illegal possession of schedule property?
5. Whether the plaintiff is entitle for the mesne profits? If yes, at what rate from which date?
6. Whether the plaintiff is entitled for the suit relief?
7. What order or decree?"
22. Plaintiff No.1 examined herself as PW.1 and got marked Exs.P1 to P21 in support of their contention. Defendant No.1 examined himself as DW.1 in support of his defence and has not chosen to mark any documents. The trial Court after taking into consideration all these materials on record, answered issue Nos.1 to 4 in the affirmative and issue Nos.5 and 6 partly in the affirmative and decreed the 16 suit of the plaintiff in part, declaring that the plaintiff is entitled for possession of the schedule property and directing the defendants to hand over the vacant possession within three months from the date of the order and to pay mesne profit at the rate of Rs.5,000/- from 01.08.2007 till delivery.
23. Being aggrieved by the same, the defendants have preferred the regular appeal in R.A.No.171/2017. The First Appellate Court on re-appreciation of the materials on record, dismissed the appeal and confirmed the impugned judgment and decree passed by the trial Court. Being aggrieved by the same, the defendants are before this Court.
24. Heard Sri. A.Madhusudhana Rao, learned counsel for the appellants and Sri. K.Anandaram, learned counsel for caveator/respondent No.1 and respondent Nos.2 and 3. Perused the materials on record.
25. Learned counsel for the appellants contended that under the registered agreement and sale deed-Exs.P12 and P13, the moolageni right was agreed to be sold and not vala moolageni right. The trial Court and the First Appellate Court committed an error in appreciating the recitals found in the 17 registered documents. The plaintiff admits Ex.P14 which is the registered sale deed executed by his sisters and brother. It is an absolute sale, for which the plaintiff is a witness. The subject matter of Ex.P14 is only 3/16th right/share which was sold under the document. Therefore, it is only a portion of the entire property, which was sold. When there is alienation of a portion of the property, it will not attract forfeiture. Plaintiff's 1/16th share and his mother's 9/16th share was already sold under Ex.P13. As per Section 8 of the Transfer of Property Act, 1882 (for short '1882 Act'), unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee along with all the interest which the transferor is then capable of passing in the property. When 10/16th share over the property was sold in favour of Smt. Padmakshi and defendant No.2, he becomes the joint owner. The legal representatives of Smt. Padmakshi are not parties to the proceedings. Defendant No.2 is in possession and enjoyment of the schedule property and he has constructed a building during 1979. He is residing in the said building with his family members. Under such circumstances, the plaintiff could not have contended that it is 18 only the vola moolageni right which was transferred. Such intention was never expressed in the document. The description of the property also supports the contention taken by the defendants. Therefore, the plaintiff has no right whatsoever to forfeit the lease. The requirements of Section 111(g) of 1882 Act are not complied with. Issuance of notice in writing is mandatory but the plaintiff has not chosen to mark the notice to prove the compliance of the requirement of law. Learned counsel placed reliance on the decision in the case of Life Insurance Corporation of India and Another vs. Ram Pal Singh Bisen1, in support of his contention that mere production of a document is not sufficient. Unless the document is admitted in evidence in accordance with law, the same cannot be looked into.
26. Learned counsel placed reliance on the decision of the Hon'ble Supreme Court in the case of Raghuram Rao and Others vs. Eric P. Mathias and Others 2, in support of his contention that the forfeiture clause relied on by the plaintiff is to be applied against him strictly. Learned counsel further submitted that the lessees are necessary parties. The 1 (2010) 4 SCC 491 2 (2002) 2 SCC 624 19 sisters and brother of the plaintiff who are the lessees are not parties in the suit.
27. It is further contended that Ex.P5 is the certified copy of the vola moolageni transfer deed dated 19.02.1934. It is the contention of the plaintiff that moolageni right could not be transferred or alienated. If the contention of the plaintiff is to be accepted, there is violation of the terms of Ex.P5 much prior to Exs.P13 and P14 as there were series of transfer of rights under various deeds. The plaintiff has not challenged any of those documents including Ex.P14 which is dated 25.05.1988 nor he has contended that it gives rise to forfeiture of the lease. If the contention of the plaintiff is to be accepted, the first breach was taken place when Ex.P14 was executed, to which the plaintiff is a party.
28. Learned counsel further submitted that admittedly Ex.P14 was executed on 25.05.1988. The suit was came to be filed on 24.10.2007 i.e., after the lapse of 19 years. The suit is clearly barred by limitation. Article 66 of the Limitation Act, 1963 prescribe the period 12 years to seek possession of the immovable property when the forfeiture is incurred or 20 condition is broken. The plaint should have been rejected by the trial Court as the same is barred by limitation. The court was required to consider the period of limitation as required under Section 3 of the Limitation Act. When the plaintiff is a party to Exs.P13 and P14 and when those documents are well within the knowledge of the plaintiff, the suit filed after 19 long years is not maintainable.
29. Learned counsel further submitted that during the pendency of the suit, the Karnataka Conferment of Ownership on Mulageni or Volamulageni Tenants Act, 2011 was brought into effect. Ofcourse, the constitutional validity of the Act is challenged before this Court, which is still pending. This Court ordered to maintain status-quo. If in case, the virus of the Act is upheld, the defendants are entitled for its benefit. Hence, he would contend that the appeal preferred by the appellants is to be allowed in the interest of justice.
30. Per contra, learned counsel for the respondents opposing the appeal submitted that flow of moolageni and vola moolageni right was described by the plaintiff in the plaint under various documents. The First Appellate Court 21 considered all these documents and discussed about the contentions of the parties at length. Even though Ex.P13 refers to the moolageni right, it is only to trace the title. Ex.P9 is referred to in this document, whereunder, only the vola moolageni right was transferred. Under such circumstance, it cannot be said that under Ex.P13, moolageni right is transferred. The recitals in the documents make it clear that it is only vola moolageni right that was transferred. There is no ambiguity in the recitals as it is made clear about the intention of the parties regarding transfer of vola moolageni right. Under such circumstances, Section 8 of 1882 Act and Section 92 of the Indian Evidence Act, 1872, are required to be applied.
31. Learned counsel further submitted that even in Ex.P14 there is reference to transfer of 3/16th share. This document also refers to Ex.P9 dated 24.03.1963. Apparently what is transferred under the deed is the vola moolageni right and not the moolageni right. The moolageni right which absolutely belongs to P.Devadas Shetty was never conveyed. 22
32. Learned counsel further submitted that the defendants have not set up any specific defence in the written statement. Under Ex.P17-Settlement Deed, entire right of vola moolageni was transferred. Therefore, it cannot be contended that only a fraction of the right is transferred. Under such circumstance, the decision of the Hon'ble Apex Court in the case of Raghuram Rao (supra) is not at all applicable to the facts of the case.
33. Learned counsel further submitted that the cause of action for the suit arose when the settlement deed dated 12.11.2003 was executed and it was brought to the notice of the plaintiff. Even if the date of settlement deed is to be taken into consideration to determine the period of limitation, still the suit is well within the time, as the same was filed on 24.10.2007. The reason for forfeiture of the lease is specifically stated by the plaintiff in the plaint. There is no specific defence in the written statement. The defendants have not taken the defence that the suit is barred by limitation. Even a casual defence about limitation is also not raised. No issue is framed in that regard and there was no prayer for framing such issue. It is for the first time that the 23 defence of limitation was raised before this Court. Article 66 of the Limitation Act will not bar the suit filed by the plaintiff.
34. Learned counsel further submitted that the notice as required under Section 111(g) of 1882 Act was issued by the plaintiff. The same was served on the defendants and a reply was also issued. This fact was asserted by the plaintiff in the plaint and accepted by the defendants in the written statement. Therefore, requirement of Section 111(g) of 1882 Act is fulfilled. The defendants admitted this fact during cross-examination. The admission in the pleadings and in the evidence are the best forms of proof. Therefore, the contention taken by the appellants that there was no notice as required under Section 111(g) of 1882 Act, has no basis.
35. Learned counsel submitted that in the case of Life Insurance Corporation of India (supra) relied on by the appellants is also not applicable to the facts of the case since the same was rendered in a case of domestic enquiry and under the facts and circumstances of the case, it was held that the issuance of notice as well as its contents are required to be proved. The same is not having any application in the 24 present case when the defendants categorically admitted issuance of notice and also stated that the reply was issued.
36. Learned counsel further submitted that the defendant who has taken a defence that it was the moolageni right which was transferred under Ex.P13, has failed to substantiate the same. The trial Court and the First Appellate Court have considered the oral and documentary evidence placed before the Court in detail and arrived at a right conclusion. There are no reasons to interfere with the concurrent findings of fact. There is no illegality or perversity. Under such circumstance, the appeal is liable to dismissed.
37. Learned counsel further submitted that there is no pleading in the original written statement nor there is any amendment to the same regarding the Karnataka Conferment of Ownership on Mulageni or Volamulageni Tenants Act, 2011. No issues were raised before the trial Court. No right is conferred on the defendant under the Act as he has not applied for conferring any such right under the Act. Moreover, the vola moolageni right was already terminated and therefore, the Act is not at all applicable. The decision 25 regarding the virus of the Act has no bearing on the facts and circumstances of the present case. Therefore, he prays for dismissal of the appeal with costs.
38. On the basis of these rival contentions, the point that would arise my consideration is;
"Whether the impugned judgment and decree passed by the trial Court and confirmed by the First Appellate Court calls for interference by this Court? What order?"
My answer to the above point is in 'Negative' for the following;
REASONS
39. It is the specific contention of the plaintiffs that the deity Sri Venkataramana Devaru is the moolagenidar and the absolute owner of RS No.320/1A. This fact is not in dispute and DW-1 categorically admitted this fact during cross-examination. The plaintiffs produced the Moolageni Transfer Deed dated 17.09.1888 as per Ex.P2. The ownership of the land is traced to the deity Venkataramana Devaru and Annrita Suvaris and others transferred moolageni rights in favour of Mr.Lawrence Lobo. Said moolageni right was 26 subsequently transferred in favour of Mr.C.C.Fernandes and from him, in favour of Mrs. Theresa Marsian Saldana Bai under the Transfer Deed dated 10.06.1902. From the said Theresa Marsian Saldana Bai, moolageni right was transferred under Ex.P4 in favour of Mrs. Martha Maria Pinto @ Alvaries Bai on 16.11.1931 and the property was subjected to Vola Moolageni as per Ex.P5 in favour of Mrs. Estapin Pinto Bai. In the meantime, moolageni right was transferred from Mrs. Martha Maria Pinto @ Alvaries Bai in favour of Mr. Raymond Sequeira, who is her son-in-law and thus, the Transfer Deed dated 11.07.1940 is in two bits i.e., measuring 29.5 and 10.5 cents. Since Mr. Raymond Sequeira died intestate, his wife and children succeeded the moolageni right. In the meantime, Mrs. Martha Maria Pinto @ Alvaries Bai also died and her right over the remaining 0.3 cents devolved on her daughter- Emilia Sequeira. Mrs. Emilia Sequeira and her children sold their moolageni right in respect of the suit schedule property and also other properties in favour of the plaintiff- P.Devadas Shetty. The plaintiffs also produced Ex.P18- registered sale deed dated 20.08.2005, whereunder the moolageni right in respect of the suit property was 27 purchased by the owner or wargadar Sri Venkataramana Devaru of Sri Venkataramana Temple.
40. In the meantime, Mrs. Estapin Pinto Bai who got vola moolageni right under Ex.P5, transferred the same in favour of Smt. Sanjeevi Bai under the registered transfer deed dated 15.05.1941 marked as Ex.P7, who in turn, transferred it in favour of Sri Surendra Rao on 14.12.1951 as per Ex.P8. Under Ex.P9 dated 24.03.1963, the said Surendra Rao transferred the same in favour of Sri Chandu Shetty and Smt. Honnamma Shetty jointly i.e., the father and the mother of the original plaintiff- P.Devadas Shetty. It is only thereafter, the plaintiff purchased the moolageni right from Mrs. Emilia Sequeira and her children under Ex.P11. The plaintiff and his mother sold the vola moolageni right to Smt.Padmakshi under Ex.P13 dated 27.01.1980. As per Ex.P2 dated 25.05.1988, the sisters and the brother of the plaintiff transferred their 1/16th undivided vola moolageni right in favour of the said Padmakshi. Admitedly, the said Padmakshi has filed O.S.No.529/1989 seeking specific performance of contract as per Ex.P14. It is not in dispute that the said suit came to be dismissed as abated on the death of said Padmakshi. 28
41. The plaintiffs produced Exs.P1 to 9 which relate to the Plaint Schedule Property, to substantiate their contention with regard to the origin of moolageni tenancy as well as vola moolageni tenancy. Defendant No.1 who is examined as DW- 1 categorically admitted during the cross-examination regarding the flow of right both under moolageni and vola moolageni tenancy.
42. The recitals in Exs.P4 to 9 make it clear that under Ex.P4, Mrs. Martha Maria Pinto @ Alvaries Bai acquired moolageni right over the Schedule Property and the same was transferred in favour of Mrs. Estapin Pinto Bai, which ended in transfer of vola moolageni in favour of the parents of the plaintiff. The defendants in their written statement categorically admitted that on the death of the father of the plaintiff, the plaintiff became entitled for share in the vola moolageni over the Schedule Property. At the same time, his brother and three sisters became entitle for 1/6th undivided share each along with their mother. What was denied by the defendants is the agreement for transfer of vola moolageni right in favour of Padmakshi and contended that it was in fact 29 an agreement for sale of moolageni right. Under these circumstances, the recitals found in Ex.P12- the agreement dated 19.01.1979 is required to be considered.
43. Admittedly, Mrs. Martha Maria Pinto @ Alvaries Bai had transferred moolageni right in respect of 29.5 and 10.5 cents of land in favour of her son-in-law Mr. Raymond Sequeira under the registered transfer deed dated 11.07.1940 and upon her death, her moolageni right in respect of the remaining extent of land measuring 0.23 cents devolved on her daughter- Mrs. Emilia Sequeira. Similarly, upon the death of Mr. Raymond Sequeira, the said Emilia Sequeira acquired title over 29.5 and 10.5 cents of land also, since the Raymond Sequeira is none other than the husband of Emilia Sequeira, who died intestate.
44. The suit property was transferred by Martha Maria Pinto in favour of Mrs. Estapin Pinto Bai on 19.02.1934 under the registered vola moolageni deed. Ex.P13 dated 27.01.1880 makes it clear that the plaintiff and his mother transferred their undivided vola moolageni right i.e., 10/16 in respect of the Schedule Property in favour of Smt. Padmakshi. The controversy between the parties is in respect of Ex.P12- 30 Agreement of sale dated 19.01.1979. Under Ex.P11 dated 25.05.1964, the plaintiff has acquired the right of perpetual lessee in respect of the plaint Schedule Property along with other properties. The sale deed dated 27.01.1980 executed by the plaintiff and his mother in favour of Padmakshi discloses that the vendors were never having the moolageni right in respect of the Schedule described therein, which was purchased by Chandu Shetty- father of the plaintiff under the Transfer Deed dated 24.03.1963 from Surendra Rao and after the death of Chandu Shetty, the said right devolved on his wife and children. The vendors under Ex.P13, acquired 10/16th undivided share and the same was sold for consideration. While considering Ex.P13, the agreement dated 19.01.1979 produced as per Ex.P12 is also required to be taken into consideration. There is clear recital in the said document with regard to the right of Chandu Shetty having acquired mooligeni right along with his wife under the Transfer Deed dated 24.03.1963. If Exs.P12 and 13 are taken into consideration, the recitals make it clear that the plaintiff and his mother transferred their 10/16 undivided vola mooligeni right which was acquired by them under Ex.P9 31 dated 24.03.1963. The conjoint reading of Exs.P11, 12 and 13 do not lead to any other conclusion. It supports the contention of the plaintiffs that what was transferred in favour of Padmakshi is only vola moolageni right that was acquired by deceased Chandu Shetty during his lifetime. The documents do not refer to mooligeni right that is being transferred. Similarly, there is no reference to Ex.P11- the perpetual lease deed dated 25.05.1964. Therefore, the contention of the defendants that under Ex.P.13, the plaintiff sold both moolageni and vola moolageni rights in respect of the Schedule Property in favour of Padmakshi cannot be accepted.
45. Admittedly, Padmakshi instituted the suit O.S.No.529/1989 seeking specific performance of contract i.e., Ex.P12 dated 19.01.1979 against the plaintiff and his brothers and sisters. During the pendency of the suit, two sisters and one brother have transferred their 1/16th undivided vola moolageni right each in favour of Padmakshi and her sister- defendant No.2 under Ex.P14. But other three sisters and the plaintiff have their vola moolageni right which was devolved on them from their father. The suit 32 O.S.No.529/1989 was came to be dismissed as abated as per Ex.P16. The defendants in their written statement have categorically admitted that each of the three sisters of the plaintiff were having 1/16th undivided vola moolageni right in the Schedule Property. Under such circumstances, the defendants could not have contended that what was acquired by Padmakshi was moolageni right along with vola moolageni right.
46. The recitals in all the registered documents relied on by the plaintiffs fully support the contention of the plaintiffs as pleaded in their plaint and deposed in the evidence. The recitals in the document do not support the defence taken by the defendants. It is the contention of the plaintiff that he became the perpetual lessee in respect of the Schedule Property along with other properties and he is entitled for collecting vola moolageni rent from volamoolidhar. The Will relied on by defendant No.2 said to have been executed by Padmakshi on 30.04.1991 bequeathing her right in favour defendant No.2 is not proved. Under such circumstances, defendant No.2 executing the settlement deed dated 12.11.2003 settling the Schedule Property in favour of 33 defendant No.1 does not arise. The contention of the plaintiffs that the said settlement deed is not binding will have to be accepted, as the same was entered into without the consent of the plaintiff for transferring the vola moolageni right in favour of defendant No.1.
47. Defendant No.1 had not acquired vola moolageni right over the Schedule Property. The plaintiffs are successful in demonstrating by executing the settlement deed. Defendant No.2 violated the terms of the moolageni and volamoolageni deed rendering forfeiture of volamoolageni and moolageni tenancy. Moreover, admittedly, Padmakshi had not paid vola moolageni rent. The conduct of Padmakshi, defendant Nos.1 and 2 makes them liable to surrender the possession of the Schedule Property in favour of the plaintiffs, since there is forfeiture of volamoolageni tenancy.
48. Under Ex.P17- the settlement deed, defendant No.2 asserts that he is having absolute ownership over the Suit Schedule Property. Under Ex.P14- the sale deed dated 25.05.1988, he acquired title only in respect of 3/16th share of three sisters of the plaintiff, who acquired title from their 34 father- Chandu Shetty who was volamoolidhar. Padmakshi and defendant No.2 jointly acquired only 3/16th undivided vola mooligeni right from three sisters of the plaintiff under Ex.P13, whereas the plaintiff and his mother have transferred their 10/16th undivided vola mooligeni right under the registered deed dated 27.01.1980. Therefore, it is clear that Padmakshi and defendant No.2 acquired only vola mooligeni right over the Schedule Property and they had no right to settle the same in favour of others. The defendants have not disputed that they have not paid rent to the moolidhar. Since the plaintiff purchased absolute right and became the moolidhar, plaintiff is entitled for possession of the property by evicting the moolidhar or vola moolidhar for their failure to pay rent.
49. It is not in dispute that the plaintiff had issued a legal notice calling upon the defendants to pay arrears of vola mooligeni rent and also to quit and surrender the vacant possession of the Schedule Property. Defendant No.1 has issued reply on 30.08.2007 taking untenable contention. Issuance of notice dated 01.08.2007 by the plaintiff is an admitted fact. Under such circumstances, Section 101 of the 35 Transfer of Properties Act, 1882 is applicable to the facts of the case and there is termination of tenancy under Section 111(9) of the Transfer of Property Act.
50. Even though an attempt was made by learned counsel for the appellants to contend that the notice to quit dated 01.08.2007 was not marked as an exhibit before the Court and therefore, same cannot be taken into consideration, issuance of notice by the plaintiff and issuance of reply by the defendant is categorically admitted. The materials on record disclose that the copies of the said documents are available, but, however the same were not marked as the same were not the original documents. That will not enable the defendants to deny issuance of notice by the plaintiff, once it is admitted in the pleading and also in the evidence. Therefore, I am of the opinion that the plaintiffs who approached the trial Court seeking direction to the defendants to quit and surrender the vacant possession of the Schedule Property and also for mesne profit are entitled for the reliefs.
51. Learned counsel for the appellants placing reliance on the Karnataka Conferment of Ownership on Mulageni or 36 Volamulageni Tenants Act, 2011 contended that the appellants are entitled for the benefit of the said enactment. The vires of the Act is under challenge and admittedly, the Apex Court directed to maintain status-quo. The defendants have not raised any plea either in their written statement or by amending the same claiming right under the new enactment. Moreover, the plaintiffs are successful in proving that there is violation of the terms and conditions of the lease agreement and the same is forfeited by issuing notice. Under such circumstances it cannot be held that the defendants are entitled for the benefit of new enactment.
52. I have gone through the impugned judgment and decree passed by the trial Court and also by the First Appellate Court. Both the Courts have taken into consideration the oral and documentary evidence placed before them in proper perspective and have arrived at a right conclusion. When there is concurrent finding of the fact by both the Courts and when there are no basis to form an opinion that the impugned judgment and decree is either perverse or illegal, the same are not liable to be set aside. 37
53. In view of the above, I am of the opinion that the appeal should fail and consequently, the impugned judgment and decree passed by the trial Court and the First Appellant Court are to be confirmed. Hence, I proceed to pass the following:
ORDER
a) Appeal is dismissed with cost.
b) The judgment and decree dated 22.08.2017 in O.S.No.613/2007 on the file of the learned Principal Civil Judge, Mangalore, Dakshinka Kannada, which was confirmed vide judgment and decree dated 15.02.2022 in R.A.No.171/2017 on the file of the learned I Additional Senior Civil Judge and CJM, Mangaluru, Dakshina Kannada, is hereby confirmed.
c) Registry is directed to send back the trial Court records along with copy of this judgment.
Sd/-
JUDGE SMJ: Page Nos.1 to 24 PN: Page Nos.25 to 37