Karnataka High Court
Smt Sayar Bai Since Deceased By Her Lr vs Sri Shivakumar on 18 April, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 18th DAY OF APRIL 2013
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
REGULAR FIRST APPEAL NO.1931 OF 2011
BETWEEN:
SMT.SAYAR BAI
SINCE DECEASED BY HER LR
SRI.MAHAVEERCHAND JAIN
S/O LATE GULABCHAND JAIN
AGE: 50 YEARS
R/A NO.43, 3RD CROSS
RANASINGHPET, POLICE ROAD
BANGALORE - 560 053 ... APPELLANT
(BY SRI.V.VISWANATH, ADV.)
AND:
SRI.SHIVAKUMAR
S/O VISHWANATH SETTY
AGE: 56 YEARS
R/A RAJATHA MAHAL
RAJATHA MAHAL JEWELLERS
AVENUE ROAD
BANGALORE - 560 002 ... RESPONDENT
(BY SRI.V.B.SHIVAKUMAR, ADV.)
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This regular first appeal is filed under Order 41
Rule 3 read with Section 96 of CPC against the
judgment and decree dated 11.3.2011 passed in
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O.S.8399/2005 on the file of the XXII Addl. City Civil
Judge, Bangalore dismissing the suit for permanent
injunction.
This appeal coming on for Orders this day, the
Court made the following
JUDGMENT
Plaintiff is in appeal assailing the judgment and decree passed by 12th Addl. City Civil Judge, Bangalore in O.S.No.8399/2005 dated 11.3.2011 whereunder, suit of the plaintiff for perpetual injunction has been dismissed.
2. Though matter is listed for hearing on Interlocutory Application, by consent of learned Advocates appearing for the parties, it is taken up for final disposal.
3. Heard Sri.V.Viswanath, learned counsel appearing for the appellant and Sri.V.B.Shivakumar, learned counsel appearing for the respondent and perused the judgment and decree passed by the Trial Court.
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4. The contention of Sri.Viswanath is that Trial Court has completely erred in not considering the material evidence tendered by plaintiff to establish that deceased plaintiff had been continuously residing in the suit schedule property and thereafter her son Sri.Mahaveerchand Jain has continued to be in possession and enjoyment of suit property as a tenant under the respondent. He contends that Trial Court has erred in not noticing that father of the respondent had issued rental receipts in favour of Bhavarlal and Meetalal and said receipts have been received from the respondent's father for having received the rent from the family members of the appellant, which would clearly indicate that plaintiff's mother has been recognized as a tenant and she has continued in possession of suit schedule property as a tenant and on her demise, plaintiff, as her legal heir has continued in possession of suit property and as such, he contends that rental receipts produced by plaintiff issued by the father of the 4 defendant for having received the rent from 1977 to 2000 has not been properly considered and examined by the Trial Court and on account of illegal attempts made by the defendant to dispossess the plaintiff from the suit schedule property, plaintiff had sought for police protection and on account of the matter being of civil nature she approached the Trial Court for injunction to thwart the attempts of defendant from disposing the plaintiff from suit schedule property and Trial Court, without considering the rent receipts, erred in dismissing the suit.
5. He elaborates his submission by contending that Trial Court has erroneously come to a conclusion that receipts Ex.P-2 to P-385 cannot be accepted on account of answer given by the plaintiff in his evidence admitting that signature found on these rental receipts are not the signature of the defendant and as such it erroneously did not consider the fact that father of the defendant had issued receipts in favour of the plaintiff 5 for having received the rent as and when it became due and as such, he contends that there is non-appreciation of material evidence available on record. He also contends that conclusion arrived at by the Trial Court that suit property does not exist is contrary to the photographs produced by plaintiff as per Exs.P-386 to P-395 and hence, he prays for setting aside the judgment and decree passed by the Trial Court and allowing the appeal by decreeing the suit as prayed for.
6. Per contra, Sri.V.B.Shivakumar, learned counsel appearing for the respondent - defendant would support the judgment and decree and during the course of the arguments he has produced the photographs which are four in number along with a memo and contends that suit schedule building has collapsed and same can be seen from these photographs. Said Memo along with photos are taken on record.
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7. Having heard the learned Advocates appearing for parties, I am of the considered view that following points would arise for my consideration:
(1) Whether judgment and decree passed in O.S.No.8399/2005 dated 11.3.2011 suffers from any error either on facts or in law?
(2) Whether there has been non-appreciation of evidence or erroneous appreciation of available evidence or non-consideration of material evidence available on record and as such judgment and decree is liable to be set aside or modified? and, if answer is in the negative, whether it is to be affirmed?
(3) What order?
8. The factual matrix in brief leading to filing of this appeal are as under:
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Plaintiff filed a suit for perpetual injunction to restrain the defendant from dispossessing her from suit property which is said to be residential building. It was contended by the plaintiff that she was the tenant of suit property since 1987 and there is no rent deed and she has continued to be in possession of the suit property unauthorisedly from 1990 and onwards and she was paying monthly rent of `.175/- to the defendant who is the present owner; rents were being paid regularly; the members of plaintiff's family had resided in the said property since 1950 and only just prior to filing of the suit some of the members decided to live separately and after they went away plaintiff, her husband and children are residing in the suit property; original plaintiff is not a tenant under the Karnataka Rent Act, 1989; plaintiff is in peaceful possession of the property. On account of defendant's high handedness to take possession of the suit property, suit in question of perpetual injunction was filed as a precautionary measure.8
9. Defendant, on service of suit summons, appeared and filed the written statement denying the averments made in the plaint. It was contended suit schedule property does not exist at all; only after caveat petition was filed by the defendant, plaintiff has allegedly filed a false complaint with the police and during investigation, the police Authorities found after inspection of the suit property that plaintiff is not in possession of any portion of the property and entire building is unfit for human habitation and it was not only in a dilapidated condition but also in the stage of being demolished and all over the properties, debris were lying here and there; plaintiff was attempting to illegally enter into the suit property and take forcible possession; plaintiff is a resident of No.43, 3rd Cross, Ranasinghpet, Police Road, Bangalore - 560 053 and has been living for more than 50 years; only to trouble the defendant, present suit is filed on false and frivolous 9 grounds. On these grounds, defendant sought for dismissal of the suit.
10. On the basis of the pleadings of the parties, Trial Court framed following issues:
"1. Does plaintiff prove her lawful possession of suit property on the date of suit?
2. Does plaintiff prove illegal interference by defendant as alleged?
3. What order or decree?"
11. Plaintiff got himself examined as PW-1 and also examined two witnesses PWs-2 and 3 and in all, produced 397 documents and got them marked as Exs.P1 to P397. Defendant got himself examined as D.W.1 and produced 16 documents and got them marked as Exhibits D-1 to D-16.
12. On appreciation of oral and documentary evidence tendered by the parties and after considering the oral arguments advanced by the learned Advocates appearing for the parties, Trial Court by its judgment 10 and decree dated 11.03.2011 has dismissed the suit, which is now assailed in the present appeal. RE POINT NO.1:
13. In order to substantiate the claim made in the suit, plaintiff got examined himself as PW-1. It is admitted by him as found by the Trial Court in paragraph 11 of the judgment that there were 7 tenaments in the suit schedule property and he also admits that out of these 7 tenants, his name is not there as a tenant or that of his mother. Exs.D1 to D5, the photographs which came to be produced by the defendant, was admitted by the plaintiff, which indicates as per the finding recorded by the Trial Court that the state of affairs of the said building was in dilapidated condition. It has been recorded by the trial court as under:
"A perusal of the same would show that the said building had partially collapsed and is in a very dilapidated condition. It is hard to believe that any person would reside in the said property, which is so dilapidated. It 11 should be examined in the light of definite contentions of the defendant that plaintiff is not at all the resident of suit property and he has falsely filed the case."
14. To a pointed question to the learned counsel appearing for the appellant-plaintiff as to whether plaintiff has any document to evidence the fact that he is residing in the suit property namely extract of voter's list, electricity bill of the suit schedule property or water supply bill, the answer has been in the negative. Though P.W.1 has contended that electoral people have stopped visiting the suit property, he has not produced any document to evidence the fact that he is residing in the suit schedule property. In the background of this evidence and also in the background of the photographs produced today during the course of arguments by the learned counsel for the respondent before this court when perused, it would clearly indicate that building is not only in a dilapidated condition but it has virtually collapsed. It is impossible to construe that there can be 12 any human habitation in the building. No person of ordinary prudence would expect that in such a type of building there would be any human habitation.
15. Trial Court has considered, examined, analysed and answered as to how the documents produced by the plaintiff would not indicate or establish the fact that plaintiff is in possession of the suit schedule property and by its well considered and reasoned judgment it has answered in paragraph 15 of its judgment that rent receipts said to have been issued by defendant in favour of plaintiff's grand-father, his brother and other family members cannot be accepted since no plea had been raised by plaintiff in this regard and the said finding does not suffer from any infirmity whatsoever either on facts or on law calling for interference.
16. Infact, P.W.1 has categorically admitted in paragraph 7 of his evidence that suit schedule property or portion which is claimed to be in occupation of P.W.1 13 is having power supply or water supply. He has also contended that it has been disconnected by competent authorities. He further admits that when suit schedule building collapsed all the tenants of said building vacated the same and went away. In view of this categorical admission of P.W.1 it would clearly indicate that contention of plaintiff that he is residing in the suit schedule property is not even in the vicinity of being considered to be accepted. In fact, trial Court while examining the exhibits namely rent receipts produced by plaintiff as per Ex.P-2 to Ex.P-385 on the basis of which plaintiff claimed to be in possession of suit schedule property has found that same is in the name of one Sri.Ramachandra Guptha and one of the rent receipt produced as Ex.P-376 would indicate that it was issued to one Sri Bhavarlal who was tenant of the property as on 06.05.1977. P.W.1 admits that Sri Bhavarlal is not residing in the said property and is residing at Akkipet, Bangalore. He also admits that said Bhavarlal is none other than his own brother. Trial 14 Court has clearly recorded its finding as to why plea of plaintiff cannot be accepted after noticing admissions of the parties particularly that of P.W.1 and recorded its finding as under:
"He admits that even now his brother is residing at Akkipet and said house belongs to him and made a candid admission that he is also residing with him."
(Emphasis supplied by me) This admission by P.W.1 would clearly establish the defence set up by defendant and same deserves to be accepted and accordingly it has been accepted by trial Court and rightly so. In fact, P.W.1 has admitted that 7 to 8 years prior to recording of his evidence, said building totally collapsed and the same is not in existence. This itself would have been sufficient for the trial Court to dismiss the suit. However, in view of voluminous evidence tendered by appellant-plaintiff and to avoid any technical plea being raised by plaintiff that 15 there has been non application of mind or non appreciation of evidence or non consideration of material evidence tendered and available on record. Trial Court has embarked upon conducting a detailed enquiry in this regard and having undertaken such a exercise, it has found that there is no material whatsoever in the claim of plaintiff. Said finding is based on correct and proper appreciation of evidence tendered by plaintiff himself. It is also found by trial Court that evidence of P.W.2 would not indicate that plaintiff is residing at Akkipet and he has not even denied the said suggestion made to him. In fact, said witness has admitted in the witness box that he had borrowed money from plaintiff which would clearly indicate that he is an interested witness and only to help him he had tendered evidence. P.W.3 who was examined on behalf of the plaintiff also admits that said building had collapsed but he is unable to say when it had collapsed. He has also admitted that he has not 16 visited the suit schedule house since last 7 to 8 years prior to recording of his evidence.
17. Said evidence when examined along with photographs produced by learned counsel for appellant before this court would clearly indicate that trial Court has rightly refused to exercise its jurisdiction for granting perpetual injunction in favour of plaintiff. Said finding does not suffer from any infirmities whatsoever either on facts or on law. On the other hand, trial Court has analysed the entire evidence tendered by the parties in proper perspective as discussed herein above and there is no erroneous appreciation of evidence or non- appreciation of available evidence or non consideration of any material evidence available on record. In that view of the matter, I do not find any infirmity whatsoever in the judgment and decree passed by trial Court which calls for interference. As such appeal is liable to be rejected and judgment and decree of trial court is liable to be affirmed.
17RE: POINT NO.(2):-
18. Hence, for the reasons aforesaid, following order is passed:
ORDER
1) Appeal is hereby dismissed with costs.
2) Judgment and decree passed by trial Court in O.S.No. 8399/2005 dated 11.03.2011 by XXII Addl.City Civil Judge, Bangalore is hereby affirmed.
3) Appellant-plaintiff to pay respondent -
defendant a sum of ` 5,000/- as costs within an outer limit of four weeks from today failing which, respondent would be at liberty to recover the same by filing execution petition.
Sd/-
JUDGE RV/sp