Karnataka High Court
Shri. Madhav Shankar Revankar vs Shri. Shivayogappa Basappa Bellad on 26 September, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC-D:14073
RSA No. 100692 of 2024
C/W RSA No. 100693 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 26TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO. 100692 OF 2024 (INJ)
C/W
REGULAR SECOND APPEAL NO. 100693 OF 2024
IN RSA NO.100692 OF 2024
BETWEEN:
1. SHRI. MADHAV SHANKAR REVANKAR
AGE. 64 YEARS,
OCC. BUSINESS,
R/O NEAR TSS ROAD,
SIRSI-581401
...APPELLANT
(BY SRI SOURABH HEGDE AND
SOUMYA HEGDE, ADVOCATES)
Digitally signed AND:
by BHARATHI
HM
Location: HIGH 1. SHRI. SHIVAYOGAPPA
COURT OF
KARNATAKA BASAPPA BELLAD,
DHARWAD AGE: 58 YEARS, OCC: BUSINESS,
BENCH
DHARWAD R/O SIDDALINGAPPA AKKI,
BANGARPET, I CROSS,
OLD HUBBALLI-580024.
2. SHRI CHANNABASAPPA
BASAPPA BELLAD
AGE: 56 YEARS, OCC: BUSINESS,
R/O SIDDALINGAPPA AKKI,
BANGARPET, I CROSS,
OLD HUBBALLI-580024.
...RESPONDENTS
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NC: 2024:KHC-D:14073
RSA No. 100692 of 2024
C/W RSA No. 100693 of 2024
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 READ WITH ORDER 41 RULE 1 OF CODE OF CIVIL PROCEDURE,
PRAYING TO, SET ASIDE THE JUDGMENT AND DECREE DATED
04.07.2024 IN RA NO. 26/2016 ON THE FILE OF SENIOR CIVIL
JUDGE AND PRINCIPAL JUDICIAL MAGISTRATE FIRST CLASS, SIRSI,
CONFIRMING THE JUDGMENT AND DECREE PASSED ON 26.03.2016
PASSED IN O.S.NO.209/2009 BY CIVIL JUDGE, SIRSI, BY ALLOWING
THE INSTANT APPEAL.
IN RSA NO.100693 OF 2024
BETWEEN:
1. SHRI. MADHAV SHANKAR REVANKAR
AGE. 64 YEARS, OCC. BUSINESS,
R/O NEAR TSS ROAD,
SIRSI-581401
...APPELLANT
(BY SRI SOURABH HEGDE AND
SOUMYA HEGDE, ADVOCATES)
AND:
1. SHRI. SHIVAYOGAPPA
BASAPPA BELLAD,
AGE: 58 YEARS, OCC: BUSINESS,
R/O SIDDALINGAPPA AKKI,
BANGARPET, I CROSS,
OLD HUBBALLI-580024.
2. SHRI CHANNABASAPPA
BASAPPA BELLAD
AGE: 56 YEARS, OCC: BUSINESS,
R/O SIDDALINGAPPA AKKI,
BANGARPET, I CROSS,
OLD HUBBALLI-580024.
...RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 READ WITH ORDER 41 RULE 1 OF CODE OF CIVIL PROCEDURE,
PRAYING TO, SET ASIDE THE JUDGMENT AND DECREE DATED
04.07.2024 IN RA NO. 34/2016 ON THE FILE OF SENIOR CIVIL
JUDGE AND PRINCIPAL JUDICIAL MAGISTRATE FIRST CLASS, SIRSI,
CONFIRMING THE JUDGMENT AND DECREE PASSED ON 26.03.2016
PASSED IN O.S.NO.288/2010 BY PRL. CIVIL JUDGE, SIRSI, BY
ALLOWING THE INSTANT APPEAL.
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NC: 2024:KHC-D:14073
RSA No. 100692 of 2024
C/W RSA No. 100693 of 2024
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
ORAL JUDGMENT
1. RSA No.100692/2024 and RSA No.100693/2024 are clubbed together since the suit is between same parties, and nature of claim of one suit is for permanent injunction by the tenant and nature of claim of another suit is for possession by the owner. Suit premises are one and the same in both the suits. Therefore, both the suits are clubbed together and taken together for common consideration.
2. For the purpose of convenience, ranking of the parties are stated as appellant/tenant and respondents/owners.
3. The respondents/owners are the owners of suit property and their father executed permanent lease deed in favour of father of appellant/tenant. Therefore, the appellant has continued in the premises as tenant and is regularly paying rents and that is appropriated by the respondents/owners. The appellant/tenant filed suit for -4- NC: 2024:KHC-D:14073 RSA No. 100692 of 2024 C/W RSA No. 100693 of 2024 permanent injunction that is decreed and the respondents/owners filed suit for possession and the same is also decreed. The appellant/tenant has filed regular appeal before the first appellate Court. Both the appeals are clubbed and heard together and passed common order against the judgment and decree passed for permanent injunction. Some of the observations made in the trial Court are against the appellant/tenant. Therefore, appellant/tenant was constrained to file appeal. Though the decree is passed in favour of him, the first appellate Court clubbed and heard both the suits together and confirmed the judgment and decree passed by the trial Court.
4. Being aggrieved by it, the tenant preferred these two appeals by raising various grounds, stating that substantial questions of law are there in the appeals for consideration and hence prays to admit the appeals and hear the appeals on merits.
5. Heard learned counsel for the appellant/tenant.
6. Learned counsel for the appellant submitted that the suits are filed only against one tenant but there are other -5- NC: 2024:KHC-D:14073 RSA No. 100692 of 2024 C/W RSA No. 100693 of 2024 tenants also and against other tenants, when they are not made parties, then suits are hit by non-joinder of necessary parties, therefore, submitted that suit for possession is not maintainable only against one tenant where there are other tenants also available.
7. He places reliance on the judgment of the Hon'ble Supreme Court and High Court of Calcutta, which are as under:
i. Moreshar Yadaorao Mohajan Vs. Vyankatesh Sitaram Bhedi (D) Thr. Lrs and Others, 2022 LiveLaw (SC) 802 ii. Kalyan Kumar Bera Vs.Milan Kumar Khutia & Ors., FAT No.451/2016
8. Therefore, learned counsel for the appellant prays to admit the appeal and consider the case on merits in the appeals.
9. The facts in the present case are not in dispute. The respondents are the owners of the suit schedule property and the appellant is the tenant, is not in dispute. The respondent-father had executed permanent lease deed in favour of father of appellant is also not in dispute. -6-
NC: 2024:KHC-D:14073 RSA No. 100692 of 2024 C/W RSA No. 100693 of 2024 After demise of father of appellant, the tenancy is inherited by the appellant. The only ground raised in these appeals is suit for possession only against one tenant cannot be maintainable as it is hit by non-joinder of the necessary parties, when other tenants are also there, but they are not made as parties.
10. Here, the tenants are the legal heirs of the original lessee. The facts in Moreshar Yadaorao Mohajan Vs. Vyankatesh Sitaram Bhedi (D) Thr. Lrs and Others (supra), are different. In that case, the suit property was jointly owned by the defendant along with his wife and three sons, but wife and three sons were not made as parties in the suit. Therefore, in that context of the facts and circumstances of the case, it was held that an effective decree could not have been passed affecting the rights of the defendant's wife and three sons without impleading them. Therefore, the facts and circumstances stated therein are entirely different from the instant case. Therefore, the above judgment is not applicable to the present case.
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NC: 2024:KHC-D:14073 RSA No. 100692 of 2024 C/W RSA No. 100693 of 2024
11. In the case of Kalyan Kumar Bera Vs. Milan Kumar Khutia and Others (supra), the facts are that defendants are five trespassers. The plaintiff has filed suit for possession only against one trespasser. Therefore, in this context it was held that the suit for possession only against one trespasser is not maintainable and effective decree could not have been passed without impleading other trespassers. Here the facts and circumstances in the present case are different from the above stated case. In the present case, the appellant is not trespasser, but appellant and tenant are lessees and they have commonly inherited through their father. Therefore, above cited judgment is also not applicable to the present case.
12. When suit is filed against one of the legal heirs who is a tenant that is sufficient also against other legal heirs even though they may not be arraigned as party. Admittedly, when all the legal heirs of the lessee are tenants, therefore where there are tenants in the family being legal heirs, the suit filed for possession against one tenant is maintainable. If there are several tenants of one -8- NC: 2024:KHC-D:14073 RSA No. 100692 of 2024 C/W RSA No. 100693 of 2024 single premises, or different property, then the submission of learned counsel for the appellant could have been accepted, but here tenants are legal heirs of the lessee, cannot be characterized as different tenants. Therefore, both the Courts below are correct in holding the suit for possession, maintainable and rightly decreed the suit which needs no interference by this Court. Accordingly, there is no substantial question of law involved in the case. Therefore, second appeals are liable to be dismissed at the admission stage itself.
13. However, the appellant is tenant and running foot wear business, selling leather bags, belts and shoes and it is stated that it is the only place for earning livelihood of the family. Therefore, prayed for suitable time to hand over the possession till alternative premises is searched. Considering the factor that the suit property is only premises for the appellant/tenant for their and family livelihood and for enabling to make alternative arrangements for shifting the business. Accordingly, 18 months of time is granted to handover the vacant -9- NC: 2024:KHC-D:14073 RSA No. 100692 of 2024 C/W RSA No. 100693 of 2024 possession of the suit property to the respondents/owners and 18 months time is commencing from today. The appellant/tenant shall file an undertaking affidavit in this regard by undertaking to vacate the suit properties within the period of 18 months from today.
14. Four weeks time is granted to file affidavit from today. Till handing over the vacant possession of the premises of the property, the appellant/tenant shall go on to pay the existing paying rent to the respondents/owners and shall not create any third party rights in whatever manner detrimental to the interest of the respondents/owners.
Sd/-
(HANCHATE SANJEEVKUMAR) JUDGE KGK-paras 1 to 8 AC-paras 9 till end CT:GSM List No.: 1 Sl No.: 23