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Karnataka High Court

Sri P N Guddeshi vs I J Veeranna S/O Rukkappa Dead By His Lrs on 17 March, 2009

IN TI-E HIGH COURT OF KARNATAKA AT 

DATED THIS THE 1?"! DAY 01:' MARCH V

BEFORE

THE HOIWBLE MR JUSTICE K §I'KESHAYA§IA FiAYANA  V'

R.S.A N0. 259; OF 2005 

BETWEEN:

1

SR1 P N GUDDESHI  
s/0 LATE NINGOJ1 .RAO,<'"" -- 

AGED ABOUT 41 YEARS'._  .V "  

mm 385/1 . k «
MYAsABEDA;RAKER»$. %  '
DAVANAQEE-3_~1   

(By Sri: B Rt;5:12»;::}o'§ir;j%.a§,'75;3«$(()c1éTE

AND :

L}. VEERANRTA As/O' Rf}iiK4§_PFA

._.wDEAD7fi?}Y ms L1§s..   _

V. , s1~.2T. VEJEIGGAMMA

" A fW,'(LiaLATiE?._Jjj..VEERANNA

. "A<3ED'_z§.BQUT 48 YEARS,
' __H0usE::i£oL1:> WORK

n

 1'. APPELLANT

J

R/O'-D.'N"O 458, MYASABEDARAKERE

I)AVg_¥:"'IA(}ERE 4

V. _@NKA.'rEsHA

'S/0 LATE VEERANNA J

 AGED ABOUT 28 YEARS

R/O [me 450,
MYASABEDARAKER1
DAVANAGERE

/"



3 RUKMESH

S/O LATE VEERANNA J

AGE13 ABOUT 24 YEARS

R/O mm 450,
MYASABEDARAKERI   
DAVANAGERE -1 

4 JYOTHI  
D/O LATE VEERANNA J 
AGED ABOUT 19 YEARS  J
R/O 9.910450,   "
MYASABEDARAKE1§I'~«.
DAVANAGERE -1 
5 sH0BHa _f, { ';_"y, '1
D/() :.ATE,'vEf;TERAaa<.N;e}J" "  
AGED A3s2UT.m:~ YELAR".<s   A
R/0 D-NOW),  J  .% '
MYASABEDAR'é$.KE*RI'-..
DAVANAGERE   
  V      RESPONDENTS

(By Sri : B  FOR R1-- R5 )

 RS9; "FII4E.13 U/s.1oo 0? cpc AGAINST THE

1"'v_J¥JDQ§/1E1§f'§fg%.. A"«NI) DEGREE 1:>'r.15.5.20e3 PASSEB IN

§...AfN_0}:96,!%2ai§2L«i»~oN THE FILE OF THE I ADDL. CIVIL

  JUDGE (s§;.':3§;:'j DAVANAGERE, DISMISSING THE AI°PEAL

AND CQNFIRMING THE JUDGMENT AND DEGREE DT.

a.'i'.98.2oo2 'PASSED IN 0.330.431/97 ON THE FILE QF THE
 CIVIL JUDGE (JR.DN), DAVANAGERE.

   THIS RSA cemzzm ON FOR ADMISSION THIS DAY,
"  'THE COURT DELIVERED THE FOLLOWING: /if

3' ,.
_/



JUDGMENT

This Second Appeal is by the an-suecessfzflj against the concurrent judgments of the 4' which the suit filed by the plaintifi_'fappelle;nfv"fof;v decleagazion _ and permanent injunction was disn1is$_ed;'

2) The appellant u1:he" me before the trial Court. are legal representatives ofothe 'gale plaintifi' filed suit in 03. of-{he then Munsifi" at Davangere, ' deielxé-tmtion that, the act of the defendant' " out the repairs' to the suit schedule the consent of the plaintifi' and ..--vwitho1;it. Qemilission. the Court as per the provisions of the Control Act, is highly illegal and for conSei:§i:en_f §5e]§ef of permanent injunction restrazmng the 'defend'anf:e from carrying out any repairs to the suit schedule ' or fiom meddling with the suit schedule property ' manner or by erecting any permanent structures or @/ by effecting any structural alterations in the suit schedule I3T0P"31't}'-

3) The ease of the plaintiff K 'V The p1aintiff's father Ningoji pasmar in possession of the New' No.450 measuring 54? _ + "situated in Myasabedarakeri, Davahgfiereh' purchased the same finm and the City Munieipaiity;-:4 father in possession of the ago, wherein his father eonstxuehfedhh The City Municipality, Davangeee, exeeuted the"saIe certificate in favour of his zcaxhef be duly registezned on 04.01.1995. VA£:ef&%se;e e;¢at2;eer his father, the pxajnee along with his : VV m.-:>the::f became the absolute owner of the suit e jggeeheduke gefoperty. The property desm-ibed in the schedule '1t:.es_t;1""1:.": is one of the tenements censhncted by the '11' ef the plaintiffs in the aferesaid preperty. The eiefendant teak the suit schedule preperty on lease from the ' father of the plaintiff ageeing to pay monthly rent of Rs. 100 /- and thus the defendant is the tenant in of the schedule property under the plajntifii was paying monthly rents to the father. regularly upto April 1988 and subeeqtienft to the hi defendant has not paid the monthlyflrents. plaintiff issued a notice to the cliefendanttca him to pay the arrears of rent} filed Eviction Petition against the Defendant of 1997 on the me of the and the same is pendirlgi.'-.__ is in dilapidated condition. However, defentiant is the tenant in the schedule has no to carry out any repair er put-up any [ thereon Without the permission of the laridlord Hor'."_'f.vitho.ut the order of the jurisdictional Court. *Howei?er, taking permission either from the landlord ifiem the Court, the defendant is trying te putwup stzmetures thereon and alee eflecting repairs, A' 6 which he is not entitled to. With the above contentions, the plaintiff sought for reliefs noted earlier.

4) The original defendant, upon summons appeared before the trial Court K written statement denying the casetor d denied that the suit property the Municipality in favour of the father» of the' City Municipality, Davangem, .mt.I1.e Sole Certificate regstered on 04.03.1995," that he is in occupation of" a tenant under the piaintiff. Je 'contended «he never took the schedule property on father of the plaintiff. He in possession of the property for ox}eri3i}'V own rights and that the plaintiff has no over the suit property and therefore, he is

- eI3tit1ed--- for any relief sought in the suit. In the light of the pleadings of the parties, the V V Court framed the following issues: ,3 @/ ._ "-{'13:} iii} Whether the plaintiff proves that hefx owner of the suit property and defefldasetji _ his tenant?

Whether the plaintiff hi éthat' defendant is carrying o11'tArevpajre.vof the si31i_t't . property without the "eonse:1t.of».tE-;e and without;.'.pe1'miseio:1_o'£. figs per the provisionef' of ,I2e:1t Control the V Jproves that the defezidentutis oet the Iepajrs of the Me11it:ivf, v by. erecting permanent making alteration in the €§1.;_it preperty'.§rej1;dicia]1y to his right, title rand by permanent injunction for ' . '3. I ,. . . . . . ..

' 1 the defendant proves that he has perfected his title over the suit property by *~ _ "law of adverse possession?

Whether the defendant further proves that the plajnflfl himself has committed breach of injunction order passed by this Court in 0.8. No.20?/1995? gig go £.//'/

vi) What order or decree?

6) The trial Court artgyhearirxg on appreciation of the oral .

answered material issue-e' '1E._Vfe itb.e ' the plajnfifi by hofiding failed te prove that he is sehedule property and that Qefegidaefii the schedule pmmngv; fete that the defendant has perfected his title by that V"iCW of the matter, the trial dismissed the suit of the plaintiff. Being said judwlent and decree, the ' appeal befere the Court of Civil Judge, e ,__'(fS.r.I)ri;;');-.V.'£):avangere, in RA. No.196 of 2002.

7) The appellate Court on messessment of oral and documentary evidence, cerzcurred with T the findings of the trial Court on all issues and censequently dismissed the appeal upholding the /F judwcnt and decree of the trial Court. It is these concurrent judgments of the Courts _ ma-«successful piajntiff is bcfoxjc 2 second appeal.

8) When the appci;i;:1'V:VV'i;v;?as vfor it appears, learned. f;\hc_ros;')oi1dcnts took notice and filcd respondents.

Records ./9}. ihoieaaémcd counsel appearing on the records.

_10) Gowda, learned counsel for cootendcd that the Couxts below have ._ oérious error in holding that the piam' tiff Iias {jot iirovcd his title to the suit schedule property * said finding is contrary to the regstorod "documont«Ex.P1 and therefore, the finding of the Courts 'below on the question of title is erroneous. Hc also contended that in this suit, though the relief of 10 declaration is sought, in eameet the suit for ,4.

permanent injunctiorz and therefore, t11ere...::;.r;or. for the Courts below to go into the of ' further contended that -1' committed error in di$>befievi41;:g""'P3xs. «P3 which would clearly the relatigorrship of' the landlord and and the defendant, and of the Courts below to prove the jural T'31ati013:5hi1:3'_V.9f tenant between the ' erroneous and contrary to the "er:fi;'c1ez1ce on record. He further .th'at.___t_.21e Courts below are not justified in ' P9 and P10 by comparing the sigiatures .' A with the eig1atures of the defendant foexfi. on written statement and vakahath. According '' , the learned counsel, the Courts below ought not to have exercised this power vested in him under Section 7 3 of the Indian Evidence Act in the light of the oral /:2 fl/~ II evidence of PWS. 2 and 3 who have deposed about execution of Ex.P9 by the original defendant.

11) On the other hand, Manjaiim, learned counsel for the respondents, toi.s_2_ipport' the reasonsings of the Courts contendii::gVVéV't1iat there is no merit in this. apoeval does not involve any question of etibstanfiai question of law.

12) --As the basis for the relief the suit was that, his father was ownef of 'tfze suit schedule property ;pt}§i't:i}_aS€(i1A "me-mteame from City lviunicipality, the death of his father, he along : it Witit brother became the owner of the

-- ~. iv»-Veame the defendant is their tenant in respect ' '-o'1'i*i schedule property, which is a portion of the area The relief of decimation sought in the suit to declare the act of the defendant as illegal on the 12 ground that the defendant is only a tenant occupation of the schedule property and E _ right to effect any repair or to '4 structure thereon. Therefore, ittis the plajntflf to prove that he'§$"'-the eweee/1eed;eedet the schedule property =(i_efeti(iao_t his tenant. The trial oral and documentary etridenee 'tReg'-stered Sale to prove his title to 'accepted for the reason that, bytne er Ex.P1, the father of the plaimjffm «eheee eeeee said decument is stated to Vhave-efiveen exeeutetfe-~-was riot alive and therefore, no "on to the father of the plaintifi' under Ex; est the pieimsn" cannot be held to be the "~'««.__'owfner er stfit schedule property. The trial Court held that Ex.P9 produced by the plaintiff to '11' prove that the orignal defendant took the premises on ' " lease, is not a genuine document and it is a concocted 2' 13 one. The trial Court also held that Ex.P1(}, stated to be a Money Order Coupen, Whemuilfiéf A' original defendant stated to have sent d1e_--rent':for-d~ti1e 1 month of April to the plaintiff ateofiv A ;_e document. For this ._ 'trial exercise of its power under ..

Evidence Act compared""'tt1e. on Exs. P9 and P10 «men the" of the defendant __ .¢i_t1'e; as the written statement----and~fifiebtd;A: found on Exs. P9 of the original defendant: Zigfibellate Court concurred with jjxeee by the Trial Court in this as on the date of Ex.P1, father of the not alive. Ex.P1 is dated 04.01.1995. as Sales Certificate executed by City ' Davangere. According to the recitals of . WE3x5.P1, property bearing old Ne-.435--A and New No. ' 450 was allotted to P.(}. Ningoji Rae Pawar as per e 14 Government Order dated 12.12.1994. Even as on that date, father of the plaintiff was not alive. Therefefe,V"., my considered opinion, both the Courts * rightly held that the title in 1'espeet"ef._ (£16.; mentioned in Ex.P1 has not a]1ottee/ purchaser under "The Wheie "fer the case of the plaintifi' "V

13) ' made abeve, the be the owner with this appeal, the appeflefit egiplication under Order 41 Rule 2': 91' em. permission of this Court to acidifienal documents viz., a copy of gated 23.01.1950 purported to have _ the City Municipality, Davangere, and ' H H copy "of {he sales certificate said to have been issued City Municipality, Davangere, in favour :3!' one VT Nfelgappa of Shettyhalli on 21.06.1956. A copy of V x extract from assessment zegster issued by City Pr'! 15 Municipality is also sought to be produced. As a]rea:dy,T indicated above, it is the specific case of the "

that his father became the owner of 3 pursuant to the sale _ 04.01.1995 and not pu1'sua3:1t'tQ theatleged V dated 23.01.1950 or the 'dated 21.06.1956. In Ex.P1, mfefeace to the alleged reseltttien the sale certificate already sale certificate__oti" no need for the
-'sale certificate as per Ex.P1 in the ffizemfom, the documents new . «gougjit are not relevant and material in this matter. No grounds are made'e11.tdtt§.j the appellant to produce additional % T . ._ . 4' d V .d0cu}11erits.
V' " ~14) Having regard to the above discussion, I T " fifid ne reasen to intexfere with the concurrent findings & 16 of the Courts below with regard to the title of the plaintiff in respect of the suit schedule property.
15) Ex.P9 is described as Rent (.ié«.-'€?:€$€'f'..T<=.'>.€??a¥?.J...) dated 01.07.1986. As contents of this document, the the schedule property on lease fa'd;e1f* of.

plaintiff. The document is saidjto haves Signature 91' the ori@'n2J defeIidé.r1fe2:i" Reveeiie Ste mp. As noticed earlier, both' have held that fiat'-gefifiifie: document and it is a eoneoe'ted«_oi1e.V fixed' ,s:'easen to differ from this op'1nion._ the whole case of the V' flee. hi"s"father became the owner of the to sale mrtifieate dated 04.01.1995. V If the plaintifi' became the owner of the 1 pursuant to Sale Certificate dated A or('¥4';»'.'€}.]:';}*A1995~*.r3,'x.P1, hew could he lease the property to Befendant on 07.01.1986 itself. The triai Court A d " Vhas compared the sig1ature appearing on the revenue 17 stamp in Ex.P9 with the admitted siglature of eriginal defendant appearing on the vakalath 4' as written statement and has coxneufio the "

that 'the signatures found on 'the A admitted signatures of the Section 73 of the Indiee 'A_{:t# is empowered to compare' flbwever, in eatena. of decieieiis, ieell as this Court has Section 73 should .» in the case on facts and circumstances of the has resorted to exercise the ' 7 3 and has compared the en Ex.P9 with the admitted £39 doubt, PW-s. 2 and 3 have been 'examined-before the Court to prove Ex.P9. The Courts ' rightly disbelieved the evidence of PWS. 2 3 with regard to Ex.P9. Therefore, I do not see ' any error committed by the Courts below in 18 disbeiieving Ex.P9 and holding that Ex.P9 is notya genuine document. Ex.P10, which is state_d~~~tol "

money order eoumn, has been rightly Z T Courts below as it does not bear tile I:

authorities nor it indicates .5.-1e~.___ to Who' sent"'th.e4_V said "
money order. Though it is for the month of April, it is > year.
The sigiature 'ihalso been compared of original defendaE1t._'.§ i1d::fi,_»: have come to the eonclusvioni' the sigiature of the original' dei'o:3.dat'1t7 P9 and P10 are eschewed " «frozzzfleonsiderafiongv-ttznere is no other evidence placed "to establish that the defendant is a tenant in..tii:i:g:o::sehed111e property under plaintifl'. In of fact that the plaintiff has failed to prove The is the owner of the property and that .:d_e§"endant is the tenant in respect of the schedule ' property, in my opinion, the Courts below have rightly 3 fly KGR* 19 held that the piaintiff is not entitled for any reiiefs sought in the plaint. The appeal in does not involve any question gf law u substantial question of law. Henéc, And-A.1fi'crit fin:; this appeal.
Accordingly, the