Karnataka High Court
Smt. Shevanta Mahadev Ghorpade vs Shivaji Antu Jadhav on 21 April, 2023
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF APRIL, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO. 5504/2010
BETWEEN
1. SMT. SHEVANTA MAHADEV GHORPADE
AGE:55 YEARS, OCC: HOUSEHOLD,
R/O MANGALWAR PET, NIPPANI, TQ: CHIKKODI.
2. SMT. SANGEETA ANAND GHORPADE
AGE:37 YEARS, OCC: HOUSEHOLD,
R/O KAPSI, TQ:KAGAL, DIST:KOLHAPUR
3. SMT. SAVITA SUDHIR JADHAV
AGE: 35 YEARS, OCC: HOUSEHOLD,
R/O MANGALWAR PET, NIPPANI, TQ: CHIKKODI.
4. MAHESH MARUTI GHORPADE
AGE:33 YEARS, OCC: BUSINESS AND AGRICULTURE,
BHARATHI R/O MANGALWAR PET, NIPPANI, CHIKKODI.
HM
Digitally signed by
BHARATHI H M ...APPELLANTS
Location: HIGH
COURT OF
KARNATAKA
DHARWAD
(BY SRI. DINESH M KULKARNI., ADVOCATE)
AND
SHIVAJI ANTU JADHAV
AGE:53 YEARS, OCC: BUSINESS & AGRICULTURE,
R/O MANGALWAR PET, NIPPANI, CHIKKODI
....RESPONDENT
(BY SRI. A S MURTALE., ADVOCATE)
THIS RSA FILED U/S. 100 CPC. AGAINST THE JUDGEMENT &
DECREE DTD: 23.03.2010 PASSED IN R.A.NO.16/2007 ON THE FILE OF
THE PRESIDING OFFICER, FAST TRACK COURT-I, CHIKODI,
DISMISSING THE APPEAL, AGAINST THE JUDGEMENT AND DECREE
DATED:15.02.2007, PASSED IN O.S.NO.7/2004, ON THE FILE OF THE
CIVIL JUDGE (JR.DN) NIPANI, DECREEING THE SUIT FILED FOR
POSSESSION OF THE SUIT PROPERTY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
THIS COURT, DELIVERED THE FOLLOWING:
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JUDGEMENT
The present second appeal by the defendant Nos.1(a) to 1(d) assailing the judgment and decree dated 23.03.2010 in R.A. No.16/2007 on the file of the Fast Track Court-I, Chikodi confirming the judgment and decree dated 15.02.2007 in O.S. No.7/2004 on the file of the Civil Judge (Jr. Dn.), Nipani.
2. The parties herein are referred to as per their ranking before the Trial Court for the sake of convenience.
3. The brief facts of the case are that, the plaintiff- respondent filed a suit seeking for relief of possession in respect of premises bearing House No.351/43A/36/68 measuring 12 feet east to west and north to south 30 feet situated at Mangalwar Peth, Nipani Taluk, Chikodi. It is averred that the suit property is allotted to the father of the plaintiff by the CMC, Nipani 20 years back on a lease-cum- sale agreement and the father of the plaintiff has constructed house by using country tiles measuring east- west 24 feet and south-north 30 feet and permitted the original defendant on his request to occupy the premises on leave and licence basis. Further, it is averred that the
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defendant failed to vacate the premises in spite of several requests and legal notice issued to the defendant. The plaintiff having no other alternative has filed the suit for possession.
4. Pursuant to the summons issued by the Trial Court, defendant appeared through his counsel and filed written statement. During the pendency of the suit, defendant No.1 died and his legal representatives were brought on record and adopted the written statement filed by defendant No.1. The averments in the written statement is that, defendant and his family members are in possession of the building measuring 12 feet east-west and 24 feet north-south towards the southern side of the entire suit property. The defendant denied that the plaintiff is the owner of the suit property and that the constructed structure was put up by the father of the plaintiff. The leave and licence as stated by the plaintiff is specifically denied by the defendants.
5. The defence of the defendant is that in the year 1971, application was submitted for grant of plot measuring 12 x 24 feet to the CMC, Nipani by both the plaintiff and the defendant and the CMC allotted on ground rent, both to the
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father of the plaintiff and the original defendant i.e., Mahadev Maruthi Ghorpade, to put up separate building by investing separately and accordingly, the father of the plaintiff is residing in the northern half portion of the said structure with his family members and father of these defendants the original defendant-Mahadeva Maurthi Ghorpade is residing with his family members in the southern half portion. It is stated that CMC at no point of time conferred the ownership of the said plot either in favour of the plaintiff or the defendant and therefore, the plaintiff cannot claim to be the owner of the entire structure of the plot measuring 12 x 24 feet and also cannot claim the possession of the half portion or area where the defendants are residing. It is stated that the plaintiff is not the owner since no ownership rights have been conferred and it is the CMC who is the owner of the property and the question of termination of lease by the plaintiff as a owner would not arise and the plaintiff has no locus standi to file a suit against the defendants seeking possession of the suit property.
6. The Trial Court on the basis of the pleadings, framed the following issues:
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"1. Whether plaintiff proves that he permitted the defendant to occupy the suit house as a license?
2. Whether plaintiff proves that the defendant had promised to hand over the vacant possession of suit house within two years?
3. Whether defendant prove that his father and plaintiff's father together obtain the open site measuring 12 feet x 24 feet ground rent basis by applying in the name of plaintiff's father?
4. Whether plaintiff proves that he is entitled for the relief?"
7. In order to substantiate their claim, the plaintiff examined himself as P.W.1 and got marked documents at Ex.P.1 to P.44. On the other hand, defendant No.1(a) examined herself as D.W.1 and another independent witness was examined as D.W.2 and got marked documents at Ex.D.1 to D.10.
8. The Trial Court based on the pleadings, oral and documentary evidence held that :
i. the plaintiff has proved that the defendant has occupied the suit house as a licencee ii. the defendants have failed to prove that the father of the defendant and father of the plaintiff together have obtained an open site measuring 12 ft. x 24 ft. on ground
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rent basis by application in the name of plaintiff's father and accordingly, while answering issues in favour of the plaintiff decreed the suit directing the defendants to handover the possession of the suit property.
9. Aggrieved by the judgment and decree of the Trial Court, the defendants preferred regular appeal before the first appellate court.
10. The first appellate Court framed the following point for consideration:
"Whether the impugned judgment and decree requires the interference of this court and that the appeal is fit to be allowed?"
11. The First Appellate Court on re-appreciation of the material on record held that the defendants are in permissive possession of the property and confirmed the judgment and decree of the Trial Court.
12. Aggrieved by which, the present second appeal by defendant Nos.1(a) to 1(d).
13. This Court while admitting the appeal on 10.04.2014 framed the following substantial question of law:
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"Whether the trial Court and the first appellate Court have committed a serious error in ignoring the material evidence placed on record more particularly when C.M.C. Nipani, has not executed any sale deed either in favour of plaintiff or defendant and thus judgments of the trial Court and the first appellate Court are perverse and illegal?"
14. The matter was listed on 24.03.2023 under the heading "Final Hearing". On the said date, the learned counsel for the appellants was heard. None appeared for the respondent and the matter was posted for further hearing on 29.03.2023. On the said date, none appeared for the respondent. Further, the matter was listed on 05.04.2023. None appeared for the respondent and the appellant was heard.
15. Heard the learned counsel for the appellant on the substantial question of law and perused the judgments and decrees of the Courts below and the material on record carefully.
16. Plaintiff filed a suit for possession in respect of the property measuring 12 x 30 feet contending that the plaintiff is the absolute owner of the suit schedule property in light of the lease-cum-sale agreement executed in favour
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of the plaintiff 20 years back by the City Municipal Council, Nipani. On the other hand, the stand of the defendant is that the plaintiff is not the owner of the suit property, which is in occupation of the defendants as no sale deed was executed by CMC in favour of the plaintiff. The perusal of the plaint averments evidence that the suit property was leased out to the father of the plaintiff on lease-cum-sale agreement. Plaintiffs and defendants have placed on record the material to evidence that they are in possession of the suit schedule properties.
17. The learned counsel for the appellants would contend that in the absence of any material to show that the plaintiff is the owner of the property cannot maintain a suit for possession claiming possession from the defendant contending that the defendant is a licencee. Learned counsel in support of his contention has relied upon the judgment of the Hon'ble Apex Court in the case of Chandy Varghese and Others Vs. K. Abdul Khader and others reported in (2003) 11 SCC 328 [Chandy Varghese] to contend that the transferor cannot transfer better rights than what he himself possesses.
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18. Section 52 of the Indian Easement Act, 1882 defines "licence" where one person grants to another person, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called "licence."
19. The Hon'ble Apex Court in Chandy Varghese's case has held at paragraph No.24 as under:
"The concurrent finding of all the courts is that the original owner viz. Kochunni, never intended to transfer any interest in land to Sankara Narayana Iyyer. The abovenamed transferee was found to be merely a licensee for running the sawmill in the shed erected on the land. The said transferee being himself a licensee could not and was not found to have transferred any right in the land to the original owner's wife Sainaba and her children. Kochuvareed, from whom the contesting defendant Chandy is said to have acquired title, obtained right to the shed and sawmill from Sainaba and her children. Kochuvareed acquired only the right to the shed and sawmill as a licensee and he could not have, therefore, conferred any leasehold rights in the land to the contesting defendant Chandy. He was rightly held to have acquired only right to the shed and machineries of the sawmill with a licence
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to enter upon the land for use of the shed and the machineries."
20. The Courts below taking into consideration Section 52 of the Indian Easement Act, 1882 has come to the conclusion that the grant of the suit plot is in favour of the father of the plaintiff, as such, the plaintiff has absolute right over the suit property and can claim possession of the suit property from the defendant. The judgment relied upon by the learned counsel for the appellant in the case of Chandy Verghese stated supra was a matter where the transferee himself was a licencee and the Hon'ble Apex Court held that since the transferor had no better right could not have conferred leasehold rights in favour of the other person. The present facts on the other hand is that the defendants have admitted at para No.4 of his written statement categorically stating that the CMC Nipani had granted the plot in the name of the father of the plaintiff and as such, the Chandy Verghese case stated supra is not applicable to the present facts and circumstances of the case. Para No.4 of the written statement filed by the defendant reads as under:
"4. In fact, the parents of plaintiff and defendants were residing in the house of shri. Mohan Rajaram
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Kapase as tenants for about 25 years prior to 1971.The said house is situated at Mangalwar Peth of Nipani city. On account of continuous residence of parents of plaintiff and defendant in the said house, a thick friendship and confidence developed between them. In the year 1971, the father of plaintiff and father of this defendant came to know of leasing of open space by municipal council Nipani, to intended occupiers. On ground rent by getting necessary agreement from the intended occupiers. The father of plaintiff and father of this defendant being in need and eligible to claim an open plot from municipal council to construct a structure and reside on ground rent thought of getting a plot measuring 12x24' and accordingly, applied to the municipal council Nipani. Only for the sake of convenience, the application for grant of plot measuring 12'x24'., to the municipal council Nipani, is given in the name of father of plaintiff. As per the said intended application of plot by the father of plff., and defendant, the municipal council Nipani, granted the same in the name of father of plaintiff for and on behalf of father of plaintiff and father of this deft.,in terms and conditions of agreement. The father of plaintiff and father of this defendant after grant of said plot at their own cost constructed a structure measuring 12' east-west and 24' ft.south-north of Tatti walls, and black country tiles and thereafter the father of plaintiff started residing in the northern half portion of the said structure with his family and father of this defendant and his family started residing in the southern half portion of the said is lessee in terms of grant order of CMC. Recently, about one year back
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this defendant has constructed a middle common wall with and burnt bricks cement in place of tatti wall likewise, the plaintiff has constructed the northern most east-west wall with stone and cement. Thus, the father of the plaintiff and father of this defendant both together have taken the open plot measuring 12-feet east-west and 24-feet south-north on lease from municipal council Nipani, and constructed a structure by spending equal extent of amount and occupied as lessee and at present the plaintiff and this defendant are in occupation of respective area of the said plot as lessee.
(emphasis supplied)
21. The plaintiff, in order to prove that they have absolute right over the suit schedule property, has relied on Ex.P-1 the assessment extract of the suit property for the year 1995-96 wherein the name of the CMC Nipani and Antu Jadhav father of the plaintiff has been recorded as the owner of the suit property to the extent of 12 ft. x 24 ft. Exs.P-2 to P-41 are the tax paid receipts paid by the father of the plaintiff during his lifetime and later by the plaintiff. The defendant has contended that in the year 1971, the father of the plaintiff and the father of the defendant had applied for allotment of plot and it has been clearly admitted by the defendant in their written statement at para No.4 stated supra, that the application for grant of plot measuring
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12ft x 24 ft. was allotted in the name of the father of the plaintiff, but according to the defendant, the allotment of the plot to the father of the plaintiff was on behalf of the father of defendant as well. The plain reading of the written statement envisages that the CMC Nipani had allotted the plot in favour of the father of the plaintiff and accordingly, a lease-cum-sale agreement was executed in favour of the father of the plaintiff which is not disputed by the defendants. The defendants having failed to establish the right of possession over the suit schedule property and no material is placed to substantiate the assertion of the defendant that grant in favour of the father of the plaintiff is in fact a grant to the father of the defendant as well. On the other hand, the material on record evidences that the defendant was in permissive possession as a licencee and he cannot contend that the plaintiff is not the owner of the suit schedule property and the plaintiff is mere a licencee Accordingly, the Courts below were justified in holding that the plaintiff has proved that the defendant was permitted to occupy the suit house as a licencee and the substantial questions of law needs to be answered against the appellant and this Court pass the following:
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ORDER i. The second appeal filed by the appellant-defendant Nos.1(a) to 1(c) is hereby dismissed.
ii. The impugned judgments and decrees of the Courts below are confirmed.
SD/-
JUDGE S*