Karnataka High Court
Sri Ramakrishna Kalkura vs Sri Kaliyamardhana Sri Krishan Devaru on 23 June, 2014
Author: Jawad Rahim
Bench: Jawad Rahim
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 23RD DAY OF JUNE 2014
BEFORE
THE HON'BLE DR.JUSTICE JAWAD RAHIM
R.S.A.NO.749/2014
BETWEEN:
1. SRI RAMAKRISHNA KALKURA
S/O.THOTTILU SUBRAYA KALKURA
AGED ABOUT 69 YEARS
RESIDING NEAR ADAMR MUTT, UDUPI.
2. MADHAVA KALKURA
S/O.THOTTILU SUBRAYA KALKURA
AGED ABOUT 64 YEARS
RESIDING NEAR ADAMR MUTT, UDUPI.
...APPELLANTS
(BY SRI V.S.HEGDE, ADV.)
AND:
SRI KALIYAMARDHANA SRI KRISHAN DEVARU
OF SRI ADMAR MUTT, UDUPI
A RELIGIOUS & CHARITABLE INSTITUTION
REP. BY ITS GENERAL POWER OF ATTORNEY
HOLDER VENKATARAMANA MUCHINTHAYA
S/O.LATE GURURAJA MUCHINTHAYA
63 YEARS, MANAGER, SRI ADMAR MUTT
CAR STREET, UDUPI.
...RESPONDENT
(BY SRI S.K.ACHARYA, ADV. FOR C/R-1)
THIS APPEAL IS FILED U/S.100 OF CPC AGAINST
THE JUDGMENT & DECREE DATED 5.4.2014 PASSED IN
R.A.NO.61/2012 ON THE FILE OF PRINCIPAL SENIOR CIVIL
JUDGE, UDUPI, PARTLY ALLOWING THE APPEAL AND
PARTLY CONFIRMING THE JUDGMENT AND DECREE DATED
25.7.2012 PASSED IN O.S.NO.1182007 ON THE FILE OF
ADDITIONAL CIVIL JUDGE AND JMFC, UDUPI.
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THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
The defendants are in appeal against the judgment in R.A.No.61/2012 whereby, the appellate judge has partly confirmed the judgment in O.S.No.118/2007 dated 25.7.2012 directing the appellants to vacate and deliver possession of property but declining to issue direction for demolition of structure.
2. The appeal has come up for admission after notice to respondent-plaintiff. Sri S.K.Acharya, learned counsel has entered appearance for respondent- plaintiff.
3. Heard. The contextual facts are :
The respondent, Sri Kaliyamardhana Sri Krishan Devaru of Sri Admar Mutt, Udupi, a Religious and Charitable Institution owns the property described in the schedule. It filed a suit through its authorized representative against the appellants seeking a decree 3 for physical possession of property described in 'A' schedule and also to direct the appellants-defendants to pay mesne profit at the rate of Rs.5,000/-.
4. The subject matter of suit is a immovable property bearing Sy.109/12C measuring 0.99 cents situate at Shivalli village, Udupi Taluk.
5. In support of the relief it is averred Thottilu Subraya Kalkura, the father of defendants was inducted as a tenant by the plaintiff in respect of the portion of property bearing No.109/12C measuring 99 cents initially for Rs.1.25 rent to an extent of O.5 cents shown in the plaint schedule and in this regard, rent bond dated 14.5.1950 was executed by him in favour of plaintiff for one year tenancy. However, he agreed to pay interest at the rate of 12.5% in case of default in payment of rent. The plaintiff-Mutt initiated eviction proceedings on the ground, defendants' father without their consent, has constructed shop cum residential premises on the property leased and thereafter, continued to construct additional structure which are now assigned Municipal Door Nos.10-1-133, 4 10-1-133A, 10-1-134, 10-1-135 and 10-1-136. He made unlawful gain. Thus, they sought eviction on the basis of termination of tenancy with effect from 15.5.2007.
6. The defendants received notice but failed to comply with the demands. The plaintiff-Mutt filed a suit in O.S.No.118/2007 seeking eviction of defendants, who are the legal owners of the original tenant. The defendants entered contest and disputed the construction put up by their father as illegal. However, they admitted tenancy between the father and the Mutt. According to them, the Mutt had knowledge of their father putting up a building and thereafter, their father had initiated several legal proceedings against the persons inducted in the constructed portion to protect the property. However, we do not find any specific defense taken by the tenant to resist order of eviction.
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7. Based on the material proposition and the pleadings, the learned trial judge has framed the following issues for consideration:
i) Whether the plaintiff proves the jural relationship of landlord and tenant between the plaintiff and the defendants?
ii) whether the tenancy of defendants has been terminated in accordance with law?
iii) whether the defendants prove that they are the permanent tenants in respect of the plaint 'A' schedule premises?
iv) Whether the suit is properly valued for the purpose of court fee and jurisdiction?
v) Whether the description of the property is not correct?
vi) Whether the suit is bad for non joinder of necessary parties?
vii) Whether the plaintiff entitled for possession of the plaint 'A' schedule property?
viii) What order or decree?6
8. In the enquiry that ensued, the plaintiff tendered evidence through a witness PW-1, P.Ramananda Rao and relied on 13 documents. One Ramakrishna Kalkura, one of the defendants tendered evidence as DW-1 and relied on 25 documents. The learned trial judge analysing the evidence opined plaintiff's evidence outweighs the defence and decreed the suit. It directed payment of Rs.2,000 p.m as mesne profit, apart from decree to deliver possession to the plaintiff. It was assailed by the defendants in R.A.No.61/2012.
9. The learned appellate judge confirmed the judgment of the trial court with regard to decree for possession and permitted the defendants to take the value of the building or to remove this building constructed on the land in question. The learned appellate judge declined to grant decree for mesne profits. The tenants have questioned the decree of the trial court and appellate court. However, as could be seen, the appellants-defendants did not dispute they 7 are the tenants of the respondent-plaintiff, neither they disputed their father had put up structure on the property in question.
10. Learned counsel for the appellants would submit that Courts below have erred in ignoring valid defence that all legal heirs of the original tenants were not brought into party array. They had specifically averred, the original tenant is survived by other legal heirs also, apart from the defendants impleaded in the suit. He would submit, notice of termination was issued only to the appellants and is not legal and there is no lawful termination of tenancy. He would submit the appellants were entitled to benefit of improving the schedule property, which has not been properly considered by the trial court.
11. Such contentions undoubtedly refer to the question of fact and not question of law. Therefore, I do not find any substantial question of law arising for consideration in this appeal, in view of clear admission of vinculum juris of landlord and tenant by the 8 appellants and also the fact that after the demise of their father, defendants alone are occupying the premises in question. I find no merit in the appeal for admission.
12. At this stage, learned counsel for the appellants submit that appellants may be granted two years time to vacate the premises in question, which learned counsel for the respondent-landlord vehemently opposes. The respondent-landlord would submit the defendants have utilized the premises from 1950 to the detriment of the appellants. Even after suffering decree of eviction, they are still occupying the premises making unlawful gain.
13. Learned counsel for the appellants would submit immediate eviction of the premises will be impossible as the monsoon season is in full swing in Udupi District consequent to which, it is very difficult firstly, to find alternate accommodation and secondly defendants will be unable to comply with the direction 9 of the Court to remove the structure because of continuous rain and want of labour.
14. Considering all these circumstances, I feel grant of one year to vacate the premises would be just and proper. In the circumstances, while dismissing the appeal at the stage of admission, time granted by the trial court to vacate the premises is extended for a period of one year from today i.e., till 22.6.2015, subject to the appellants filing affidavit within four weeks in the registry of this Court undertaking to vacate the premises within the period and without creating any third party interest. The rest of the decree of the trial court is confirmed.
Sd/-
JUDGE nas.