Karnataka High Court
Abdulhaq Adam Shaikh vs Sri Gheewale Katalsab Musasab on 13 January, 2010
Author: V.Jagannathan
Bench: V.Jagannathan
the III Addl. Civil Judge (JD), Belgaurn, decreeing the suit filed for declaration and injunction. This appeal coming on for admission, this delivered the following: JUDGMENT
This second appeal is filed by trial court in ().S.No.5l2/2005 being agigrievcd byitiiev«suit.3fileid by the respondents--plaintiffs beinligfld.:ec*reed trial court and the appeal preferrecli'by'i_pth_e herein being dismissed by the lower:.a--ppellate_i:;ourtiiihffhus concurrent findings by the question.
2. to the suit being filed by the responclents:p1iai'12it_iffsl:'were that, the plaintiffs were the owner pair. pppossessionf of" the suit schedule property which .comproini':~ies bf &''A' schedule property and 'B' schedule property lareiiiopeiiispaces and the appellant herein requested the plainti,'ffs to him to use the 'B' schedule property for his ii""<«.__lbtisiness therefore the plaintiffs put up a shed in the open pspa'ee_ ri'.e., 'B' schedule property for the business of the ..._l:;g'ppiellant herein and the rent which was 123.80 per month was (iv ,1 J increased from time to time and it stood at Rs.l50 for the 'A schedule property and Rs.100 for 'B' schedule property as on December, 1997. It was the case of the plaintiffs pthaththe appellant herein being the defendant in the trial court' _ paying the rents regularly and apart from_--tl'iat.:~the-iiplaint schedule property developed cracks on the..northe.rn was unfit for human habitatio.n,_and ithveirefore,~'thueiplairgtiiffs issued notice to the defendant toiiiquit_theiprernisesigbut this made the defendant to 0.S.l\iio.ii7'71 / 1998 seeking the relief of injun_ctio.n dispossessed without having? re?:oursé--_ to ycourse: of law. There afterwards, not pay the rents properly but the wall collapsed and then the appellant herein with the help" police! officials and other officials of the iicorpoiration plannediitomililegally construct a house in the suit ;5r.oi:«:riy~ = started putting up the construction on O2.(i)9,_2i0O5. .ivvithiout giving notice to the plaintiffs. The l"~..«.._plaintiffs" requested the police to stop the construction which met by the police by taking any action against the .___ii:appi}cllant herein. Hence, the plaintiffs were constrained to file }» 4,.
the suit for relief of permanent injunction as well as mandatory injunction against the defendant.
3. The said contentions of the plaintiffs was ~ appellant herein and the appellant also denie_-;i"the:'ren'tV was mentioned in the plaint and the defendaiit 'also admit he being a defaulter in payment of. rent also the defendant took up the stand that he-_o_nly» effe'cted lsonéie repairs to the wall and did not taik~e..i;;p any ;_coins.t'r'ucti_pn as such.
4. The pleadings of the parties-.4lead.._th'etrail court to frame certain issues'ii\;§4"l1iVcliv'are '~ni.en~tioii._ed_: in paragraph 12 of the judgrnenat of thefiowergiappellate court and after appreciating the evidence on record'the*~._tria.l"'court was of the View that the plaintiffshad le'st_ab'li.shed- their case against the defendant and i.c'onsequer1"t:1y"suit wasmdecreed and the appellant was directed to i'epIrio=.r.€"4tlr1e liunauthorised construction put up by him over theiisuit property and if he failed to do so, the 'plaintiffs jxiere given liberty to get the said construction "r7é;m_y?éa by following due process of law and the defendant was 3» ' i» restrained from putting up any construction over the 'A' schedule property and 'B' schedule property.
5. Appeal preferred by the defendant was dismissed._b3ti_lthe lower appellate court and hence this second .
6. I have heard Sri.G.B.Shastry, learned l.for_l_}th'e_ ix appellant and Sri.Rarnesh N. Misaleflealrneld respondent--plaintiffs and peruslelctlfthe jud'gme.ntsi..vof°'§thiecourts * it below. Unless any substantial quesltionof law involved, this Court cannot interfere with vtilconcputf.r€7nit"--fi11dings of fact of the courts below and this is the Apex Court in several in-the case of NARAYANAN RAJENDEAH 'AND LEKSHMY SAROJINI AND 0'I'I*IER.S., (2O693_l5'VSC(ii". Therefore, the appellant will have satisfyrp that itheiisubstantial question of law arises in 3118" cease l ~ V .7. il"I'r1 vthiisvlcontext, learned counsel for the appellant "i'Ai"'r.eferring to the judgments of the courts below contended that below failed to consider provisions of Section 27, 28 T and 31 of Karnataka Rent Act as well as Section 47 to 49 of the said Act and it is his contention that the courts below erred in recording a finding that the appellant has put up Va-gnew construction in place of old construction without":l:so.epl:ing permission of the plaintiffs and the courts below--alsQ i' not taking into account the ClOC1.1v1'-I'1'('3'1"1't-S' appellant which documents wouldll'tgoilpftov appellant only effected repairs submission put forward is, that t:he:lc'o14rt--._,beloW" 'couldfinot have granted mandatory injunction note of the decision rendered'_inV__ filed by the defendant. tlieaboire contentions, learned counsel also referred to «)i.'_of theépecific Relief Act, 1961 to contend that no injunction' have been granted by the trial court. Learned counsel also referred to Section 108 (e) of the Transfer or Propertyiiiifilct to contend that if there is any axzyjpart of the property, the lease shall become void the .option of the lessee. Therefore, learned counsel
- sought for interference by this Court in this second appeal. the other hand, learned counsel for the plaintiffs-- respondents supported the concurrent findings of facts of the 3:?
courts below and submitted that the courts below ._ were justified in granting the relief sought for by the plaintiffs. regard to the fact that the appellant did permission from the respondents--p1aintViffs for new construction over the earlier CO3:lStITE1-C.t:l.Orl..Wl71lC}'1'l'i_vE3_SiV:':lf'1' very bad shape. Apart from th;"s,wi__t is also sub1r'iitt.ed._Vtha_t the appellant has failed to pay the the suit premises and the any rents till now excepting the rentse_whichA...w:ere. of the interim order passed by
9. Apart from':»-tine a1:.oveli'si.ubnri.ission, learned counsel also referred the _:the courts below to contend that when the a"p.peI1anlt_ had' up a new construction, the ..questi=ofr1 of the plaintiffs seeking eviction will not arise because 'l"'WhC:l1~»l;hC,vi3I'CETllS3S have been completely destroyed by the act of is termination of the tenancy. In support of the above submission, learned counsel places reliance on the "iv.44'pdec'isions bf the Apex Court in the case of VANNATTANKANDY l.l_1:B'r?AYr' vs. KUNHABDULLA HAJEE (2000 (3) SUPREME from this the appellant has not taken any permission to put up the new construction and in the face of the said admission made by the appellant and the evidence of the indicating that the suit property was originally;i:ons'tr"uCited,_T' » with mud walls and black tiles, the evidence or1"re'cord'letvin by the parties ultimately lead to the aforesaidfiind'ingre'cof-ded the courts below.
11. Under the above circumstainc,e's,.yV_VI see errior being committed by the eourts;----._bf€1oAw'iV: in thecase of the plaintiffs that the appellant.. put up new construction by as put up the roof over theifixitatiiaé and roof and as such the question of th_e"l3ndings..o'f,the trial court on all issues framed .._by it the confirrnatiofn of the same by the lower appellate V_court..beirigerroneous and contrary to the evidence on record does not arise * ' ' it As" fair as the provisions of the law referred by the a.ppellai:t's counsel are concerned, I am of the view that there no application to the case on hand and both the courts 3» psi 10 below have rejected the contentions put forth in this regard by the appellant's counsel and as such I do not see any substance in the contentions put forth concerning application of"Se'e.tio.n 41 of the Specific Relief Act or Section 108 (e) of ' Property Act. ._
13. For the above reasons,_.I_ holdpithat no].su'bstantialfK question of law arises for consideration ii1__this5 appeal and consequently appeal stands~..disnfii'ssedi;
14. At this juncture, 1earned._co.un:sel.*'for'ithefappellant seeks one year's time to o"t_Ier§th'e Vacantiw possession of the suit schedu1e;_iv'A' theflplaintiffs for which learned counsel for uthe pla,intiffs§respondent submits that the matter has dragged on for severalfljriears and the plaintiffs are in dire need the p--rernisels""a'nd apart from that appellant has got 'others.prerr1i.sesifwhich he has let out and therefore grant of time as sought appellant's counsel is not warranted. .«_}fIavfi'ng heard to the above effect and taking note of the _i_1tiri'1e 'spent in the litigation, I am of the View that appellant can 'granted three months' time to vacate and hand over vacant «% 11 possession to the respondents-plaintiffs and the appellant shall also continue to pay the rent till the date of handing over possession. If the appellant does not hand over the posse-susion Within the aforesaid time, the respondents--plaintiffsistare?' liberty to take necessary help from the p0lice'v'peVi:Ct--_t11el appellant from the suit premises. Alpvpell-ant? shai1l..lalso7fi-l.e affidavit before this court within -two Weeks frc-ml' the_da_li;e of this orders in respect of time granted_V to hand over vacant possession to the re"s--por--i:lder1ts as in respect of payment of rents.
16. For the above :§vEeasovri~s, apllpeal 'stands dismissed. Sd/v EUDGE lJ_rn/»--l "