Karnataka High Court
Abdul Khader vs Sri M.S. Bhavani Shankar Shetty on 7 July, 2014
Author: Jawad Rahim
Bench: Jawad Rahim
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 7TH DAY OF JULY 2014
BEFORE
THE HON'BLE Dr. JUSTICE JAWAD RAHIM
REGULAR SECOND APPEAL NO.1038 OF 2013
BETWEEN:
ABDUL KHADER
AGED ABOUT 49 YEARS
S/O MOOSABBA
R/A CITY ICE CREAM PARLOUR
NEAR BUS STAND
MULKY, MANGALORE TALUK - 575 001.
... APPELLANT
(BY SRI.JAYAKARA SHETTY, ADV.,)
AND:
SRI.M.S.BHAVANISHANKAR SHETTY
AGED ABOUT 74 YEARS
S/O KAMALA SHEDTHI
R/A PAJATHOTA HOUSE
BAPPANADU GUTHU, MULKY
POST, MANGALORE TALUK - 574 154.
...RESPONDENT
(BY SRI.K.CHANDRANATH ARIGA, ADV.)
*****
THIS RSA IS FILED UNDER SEC.100 OF CPC,
AGAINST THE JUDGEMENT AND DECREE DATED 10.12.2012
PASSED IN R.A.NO.642/2005 (OLD NO.25/05) ON THE FILE
OF THE SENIOR CIVIL JDUGE & ACJM, KARKALA,
DISMISSING THE APPEAL AND CONFIMRING THE
JUDGMENT AND DECREE DATED 24.11.2004 PASSED IN
O.S.NO.256/2002 ON THE FILE OF THE II ADDL. CIVIL
JUDGE (JR. DN.) KARKALA.
THIS R.S.A COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING
2
JUDGMENT
This defendant is in appeal against the judgment in R.A.No.642/2005 dated 10.12.2012 confirming the judgment of the trial Court in O.S.No.256/2002 directing the appellant to vacate and deliver the possession of the property described in the schedule to the respondent.
2. The appeal has come up for admission after prior notice to the respondent.
3. Heard.
4. From what the learned counsel on both the sides have adverted to, it could be seen the respondent Mr.M.S.Bhavanishankar Shetty filed a suit in O.S.No.256/2002 seeking eviction of the appellant from his premises consisting of a shop bearing No.1/55 more fully, described in the schedule to the plaint on assertion that she has acquired the ownership of the property in question. The property was leased to one Moosabba on a rent of RS.20/- by Sheena Shetty, her father. Sheena Shetty, had obtained the land from one Sri.Durgaparmeshwari Temple, Bappandu and had put up a structure, which he had let out to the defendant's father.
3
5. The defendant entered contest denying the jural relationship and resisted the suit. Alternatively he put a defence there is a shop premises, which is in his occupation was constructed by his father Moosabba after obtaining permission from one Bhoja Amin and he was not collecting the rents in view of construction cost incurred by the father of the defendant. He denied the claim of the plaintiff that he had a legal right, title and interest to evict him. The technical issue of deficit court fee was also raised.
6. The learned Trial Judge had decreed the suit negating all his defence, against which he was in R.A.No.642/2005. The learned Appellate Judge had allowed the appeal and remanded the appeal back to the trial Court. Assailing that order, the landlord was in second appeal in R.S.A.No.32/2011 in this Court. The appeal was heard on merits and by judgment and dated 06.08.2012, the judgment of the appellate Court was set aside, but the appeal was remanded back to the appellate Court to consider the material already on record and record a finding. Thereafter, the impugned judgment has been passed confirming the order of eviction against the appellant.
4
7. Though the learned counsel for the appellant urged several grounds, I do not find such grounds where any substantial question of law arises for consideration in this appeal.
8. As could be seen from the evidence on record and the material proposition in the pleadings of the parties, the vinculum juris of the landlord and tenant is well established between respondent the and the appellant. The respondent has successfully established he was the landlord if not the owner and was collecting rent from the father of the appellant and thereafter, from the appellant. In view of this finding of the trial Court that the plaintiff had made out a case to directing eviction of the respondent is well founded and needs no interference.
9. At this stage, the respondent counsel submits that three years time be granted to vacate the premises and the business in the shop is the only source of earning. Mr.Chandranath ariga, learned counsel for the respondent drawing my attention to what transpired between the parties and the litigation would submit that the respondent is aged about 75 years and therefore, any further delay in 5 enabling him to realize the fruits of the decree would be a futility. Hence, he opposes grant of time as sought for by the appellant.
10. However, considering all attending circumstances, I feel that the respondent could be granted time of nine months from today to vacate and hand over the premises subject to payment of rents as on date including arrears, if any. The appellant shall also file an affidavit in the form of undertaking with the Registry of this Court within two weeks, to vacate the premises voluntarily without compelling respondent to resort to coercive steps and shall not create any third party interest. Petition is disposed of accordingly. In the circumstances, no order as to costs.
Sd/-
JUDGE SS