Karnataka High Court
Vincent Rebello vs Dr. Enid Jane D'Souza on 23 June, 2017
R.S.A.NO.1887/2015
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JUNE, 2017
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
REGULAR SECOND APPEAL No.1887/2015 (INJ)
BETWEEN:
1. Vincent Rebello, Adult.
2. Mrs.Helen Rebello, Adult,
W/o Vincent Rebello.
Both are residing at D.No.7-64,
Kallata Majal, Kanaknady,
Mangaluru-01. ....Appellants
(By Sri Tharanath Poojary I., Advocate)
AND:
1. Dr.Enid Jane D'souza,
D/o Late Mary D' souza,
P.B.No.1006, JIMI Hospital,
Al-Ain, U.A.E-15871.
2. Mr.Alexander J.D'souza, Adult,
S/o Late B.D'souza,
Residing at Muriel House,
Garodi, Kandanady,
Mangaluru-575 002. . ....Respondents
(By Sri M.Sudhakar Pai, Advocate for C/R3 & R2, R1-deleted)
This RSA is filed under Section 100 of CPC, against the
Judgment and decree Dated:02.07.2015 passed in
R.A.No.44/2009 on the file of the IST Addl. Senior Civil Judge,
Mangaluru, D.K, dismissing the appeal and confirming the
R.S.A.NO.1887/2015
2
Judgment and Decree dated:27.02.2009 passed in
O.S.No.429/2001 on the file of the Prl. Civil Judge (Jr.Dn.),
Mangaluru, D.K.
This appeal coming on for Admission this day, the Court
delivered the following:
JUDGMENT
This first defendant's second appeal arises out of the judgment and decree of the 1st Addl. Senior Civil Judge, Mangaluru, D.K. in R.A.No.44/2009. By the impugned judgment, the First Appellate Court has confirmed the judgment and decree of the Prl. Civil Judge (Junior Division), Mangalore, D.K. in O.S.No.429/2001 under which the suit of the plaintiffs for possession and mesne profits is decreed.
2. One Mary D'Souza filed O.S.429/2001 against the defendants for possession of "A" schedule premises and mesne profits. During the pendency of the suit, she died and her daughter and sons came on record and prosecuted the suit. The subject matter of the suit is a residential building bearing door No.7-64 situated in land bearing Sy.No.66/5B measuring 46 cents of Kankanadi "B" village. R.S.A.NO.1887/2015 3
3. Plaintiff contended that Mary D'Souza was the tenant of the said land and the Land Tribunal vide order dated 20.10.1981 granted her occupancy rights. Defendant no.1 is the son of Marceline Rebello and 2nd defendant is the wife of the 1st defendant. Marceline Rebello is the daughter of Nathalia D'Silva, the sister-in- law of Mary D'Souza.
4. Mary D'Souza contended that having regard to the relationship between the parties, she had permitted Marceline Rebello to reside in the suit house and after her death, the defendants have continued to live in the said house. Plaintiff contended that off-late 2nd defendant started to obstruct the manager appointed by her to manage the land and reaping of the usufructs of the suit property and therefore, she asked the defendants to vacate the property, which was not complied. Therefore, she sought for mandatory injunction etc.
5. Defendant no.2 alone filed the written statement and contested the suit. She contended that Pedro D'souza, R.S.A.NO.1887/2015 4
- the ancestor of the plaintiff and the defendants was the original tenant of the suit properties and therefore, grant of occupancy rights in favour of Mary D'Souza (plaintiff) enures to the benefit of all the heirs of Pedro D'souza and therefore, the defendants are the co-owners of the suit property. She contended that no suit for mandatory injunction lies against the co-owner. Further, she denied the theory of licence set-up by the plaintiffs and contended in that event, there is no revocation of the licence.
6. On such pleadings of the parties, The trial Court framed the following issues:
"1. Whether the plaintiff proves that she is the licensor and the defendants are the licensees in respect of suit 'A' schedule property as pleaded in the plaint?
2. Whether she further proves that she has terminated the licenses of the defendants as per the notice dated:26.04.2001?
3. Whether the plaintiff proves that the defendants are in unauthorized occupation of the suit 'A' schedule property?
4. Whether the defendants prove that the defendant no.2 is the co-owner in respect of suit 'A' schedule property?R.S.A.NO.1887/2015 5
5. Whether the plaintiff is entitled for possession of suit 'A' schedule property as prayed for?
6. Whether the plaintiff is entitled for mesne profits at Rs.50.00 per day from date of suit till the defendants vacate the suit 'A' schedule property as prayed for?
7. What decree or order?"
7. The parties adduced evidence. Plaintiff no.1 is examined as PW1 and got marked Exs.P.1 to P.30. Defendant no.2 got examined himself as DW1 and got marked Ex.D.1 to D4.
8. The trial Court after hearing both the parties, held that the Land Tribunal has granted the land under Ex.P.1 to Mary D'Souza and she is the sole owner of the property. The trial Court further held that Mary D'Souza had permitted the defendants and Marcelilne Rebello to reside in the house property. Therefore, they are in possession of the property as licencees. Thus, the trial Court decreed the suit.
9. The defendants took up the matter before the 1st Addl. Senior Civil Judge, Mangaluru, D.K. in R.S.A.NO.1887/2015 6 R.A.No.44/2009. The First Appellate Court by the impugned judgment concurred with the findings of the trial Court and dismissed the appeal.
10. Sri.Tharanath Poojary, learned counsel appearing for the appellants seek to assail the judgment of the First Appellate Court on the following grounds:
(i) Pedro D'souza - the common ancestor of the plaintiffs and defendants was the original tenant and therefore, the order of the Land Tribunal conferring occupancy rights to Mary D'Souza enures to the benefit of all his heirs. Thus, the defendants are the co-owners of the property;
(ii) There is no proof of plaintiff - Mary D"Souza inducting Marceline Rebello in the suit property as a licencee and also there is no proof of revocation of the licence;
(iii) Defendant no.1 constructed the house in 1995 and therefore, by operation of Section 60 of the Indian Easments Act, the licence becomes irrevocable.
(iv) Defendants have filed a comprehensive suit for partition in O.S.No.128/2002 which is pending in RSA R.S.A.NO.1887/2015 7 No.422/2016 and the suit property is one of the subject matter of the said proceedings. Therefore, this Court has to await the findings of in RSA No.422/2016.
11. As against that Sri.M.Sudhakar Pai, learned counsel for the respondents seek to support the judgments of the Courts below on the following grounds:
(i) There is concurrent findings of the Courts below on facts regarding the title of the plaintiffs, licence in favour of the defendants' predecessors and revocation of the licence and those questions of fact cannot be interfered invoking Section 100 CPC.
(ii) The defendants themselves at Ex.P.27 - Form No.7 dated 19.02.1974 declared that they own no other tenanted lands except the properties declared in the said document and the Courts below relying on Ex.P.27 have rejected the claim of the defendants regarding the co-
ownership and that cannot be reversed.
(iii) Defendants have not produced any evidence in proof of construction of building by them incurring expenses and R.S.A.NO.1887/2015 8 PW1 has only stated that they have renovated the building and that cannot be called as construction;
(iv) An appeal under Section 100 cannot be admitted unless the appellants make out that there is substantial question of law on which the appeal requires to be heard;
12. What are the substantial questions of law and under what circumstances an appeal under Section 100 can be admitted is clearly laid down by the Apex Court In Santosh Hazari's vs (2001)3 SCC 179, referred to Supra, the Hon'ble Supreme Court at page 189 held as follows:
"The First Appellate Court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law to be a substantial one".R.S.A.NO.1887/2015 9
13. In para 12 of the said Judgment, the Apex Court held the "Substantial question of law" as amended in Section 100 is not the substantial question of law in general importance that the substantial question of law is the one which is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to the deal with that question at some length and discuss alternative views, then the question would be a substantial question of law.
14. Finally in Para 14 of Santosh Hazari's case (Supra), the Apex Court lays the guidelines on the test of as to what is the substantial question of law:
"14: A Point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "Substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to R.S.A.NO.1887/2015 10 decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis." (emphasis supplied)
15. In view of the above judgment, the appellants have to satisfy that there is a debatable question of law which is not previously settled by any precedent. Some of the undisputed facts of the case are as follows:
- Pedro D'souza is the father of Bonaventure @ Inthru D'Souza, Baptist D'Souza and Nathalia D'Silva.
Plaintiff - Mary D"Souza is the wife of Bonaventure.
Defendant no.1 - the mother of Merceyln Rebello is the daughter of Nathalia D'Silva. Under Ex.P.1 - the Land Tribunal, Mangaluru in LRT.No.921/81-82 and 282/79-80 vide order dated 20.10.1981 granted R.S.A.NO.1887/2015 11 occupancy rights in respect of 6 lands. Sy.No.66-5B measuring 46 cents is the one amongst them. The suit house situates in Sy.No.66-5B. Till this date, none of the heirs of Pedro D'Souza have challenged Ex.P.1 the grant order in favour of Mary D'Souza before the competent authority. Till filing of this suit, none of the heirs of Pedro D'Souza claimed any share in the properties granted to Mary D'Souza under Ex.P.1.
After filing of this suit, 1st defendant - Vincent Rebello along with his brother and sisters and the children of Baptist D'Souza filed O.S.128/2002 against the present plaintiffs and two other children of Marceline Rebello for partition and separate possession of 1/9th share in the lands granted to Mary D'Souza under Ex.P.1. The said suit has been dismissed by the Sr. Civil Judge, Mangalore and the said Judgment is confirmed by the First Appellate Court in R.A.102/2010. Now the said matter is pending before this Court in RSA 422/2016 at the admission stage.
Further, in the year 1974 Nathalia D'Silva's heirs filed R.S.A.NO.1887/2015 12 an application in Form No.7 before the Land Tribunal claiming occupancy rights for certain properties as at Ex.P.27. In that application, they declared that except the properties declared therein, they have no other properties.
16. Having regard to the above said facts, the Courts below held that the grant of land under Ex.P.1 was exclusively for the benefit of Mary D'Souza (original plaintiff) and the defence of the co-ownership set-up by the defendants is rejected. Even assuming that the case of the defendants to be correct, one who becomes co-owner is defendant no.1 and not 2nd defendant. First defendant neither filed the written statement nor chose to enter the witness box. Having regard to that also the Courts below are justified in rejecting the claim of ownership of the defendants.
17. The plaintiffs claim that since Marceline Rebello was the sister-in-law of Mary D'Souza, she was permitted to stay in the suit house along with her R.S.A.NO.1887/2015 13 family members. On the rejection of theory of co- ownership, it is for the defendants to explain, the source of their possession of the property. They have not explained the same. Therefore, having regard to the relationship between the parties, the Courts below have held that Mary D'Souza had permitted Marceline Rebello and on her death, the defendants to continue in the suit property. It is not the case of the defendants that their possession is hostile possession.
18. So far as the revocation of the licence, the Courts below held that the fact of demanding possession itself amounts to revocation of licence. The Indian Easement Act does not prescribe any specific mode of revocation of licence.
19. In this regard, the Courts below relied upon the Judgment of the Calcutta High Court in SAYAMBARI DASSI vs DWIJAPADA NASKAR (AIR 1971 Cal. 435) and held as follows:
R.S.A.NO.1887/201514
Para 2: "A licensee has no real interest in the property. He uses the property by the permission of the owner with whom legal possession continues. It gives the licencee a personal privilege with no interest in the land....... To call upon the owner ine very such case to make a demand for possession before suit would be a tax on his generosity, though normally speaking, one does demand possession before going in for a costly and time consuming litigation....".
20. So far as the operation of Section 60 of the Easments Act, the records show that the defendants did not raise such plea specifically before the trial Court and no issue was raised on that point. Even otherwise, the Courts below relying on the evidence of the parties held that the work carried out by the 1st defendant in the suit property is only a renovation and not construction. In addition to that the defendants have not adduced any evidence to show that they have incurred expenses in execution of such works acting upon the licence.
21. In Santosh Hazari's case referred to supra, it is held that a new issue cannot be raised for the first time before the Second Appellate Court without pleadings and R.S.A.NO.1887/2015 15 issues on the same before the trial Court. Therefore, the contention regardind bar of Section 60 of the Indian Easments Act does not carry any merit.
22. Sri Tharanatha Poojary, learned counsel appearing for the defendants contends that comprehensive suit for partition filed by the defendants against the plaintiff and others in O.S.128/02 is pending before this Court in RSA 422/2016. As already pointed out the said suit is filed after one year of the filing of the suit on hand. Further, there is no law for deferring an earlier suit to await the findings in a subsequent suit. Section 10 of CPC contemplates the stay of the proceedings in the later suit and not the former suit. All along defendants have not made any application in any of these proceedings right from the trial Court till this Court for stay of the present suit awaiting the result in the subsequent suit.
23. In Mohammed Bakar vs Naim-un-Nisa Bibi reported in AIR 1956 SC 548, the case relied upon by the learned counsel for the appellant, it was held that R.S.A.NO.1887/2015 16 possession of one co-sharer is possession of other co- sharers and it cannot be adverse to them unless there is denial of the right to their knowledge by the person in possession, and exclusion and ouster following thereon for statutory period. Absolutely, there is no issue with regard to the said ratio laid down in the said Judgment. But, that judgment has no relevance to decide the case on hand.
24. The judgment in SHANKARAYYA SANGAYYA NARASALAGIMATH (since dead by LRs) vs LATE MALLAPPA IRABSAPPA MUDDEBIHAL (since dead by LRs), RSA 889/2004 disposed of by this Court on 03.03.2015, relied upon by the counsel for the appellant, deals with the question of burden of proof. Of course, in this suit also the initial burden of proving the ownership or licence was on the plaintiffs and they have successfully discharged that burden. Therefore, the said Judgment is also of no avail to the defendants.
R.S.A.NO.1887/201517
25. Looked from any angle, no substantial question of law is made out to admit the appeal. Therefore, the appeal is dismissed with costs.
Sd/-
JUDGE brn