Karnataka High Court
Veerayya @ Irayya S/O Puttayya ... vs Sri.Kotrayyadevaru @ ... on 20 June, 2017
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF JUNE, 2017
BEFORE
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
R.S.A. NO.100874/2015 (DEC)
BETWEEN:
1. VEERAYYA @ IRAYYA
S/O PUTTAYYA HUBBALIMATH
AGE:64 YEARS
OCC:COOLIE
R/O:SRI RAMA BADAVANI, NITAVALLI
DAVANAGERE
TQ:DIST:DAVANAGERE-577001
2. NEELAKANTHAYYA
S/O VEERABHADRAYYA TADASMATH
AGE:49 YEARS
OCC:BUSINESS
R/O:GANTIKERI ONI, HUBBALLI
TQ:HUBBALLI
DIST:DHARWAD-580020
3. RACHAYYA
S/O VEERABHADRAYYA TADASMATH
AGE:36 YEARS, OCC:BUSINESS
R/O:GANTIKERI ONI, HUBBALLI
TQ:HUBBALLI
DIST:DHARWAD-580020
4. SAVITRAMMA
W/O SHANTAYYA NEGALURMATH
AGE:66 YEARS, OCC:BUSINESS
R/O:KALASA, TQ:KUNDGOL
DIST:DHARWAD-581113
5. JAYAMMA
W/O ARUNA KODALAMATH
AGE:53 YEARS
OCC:HOUSEHOLD WORK
R/O:SRI RAMA BADAVANI,
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NITAVALLI, DAVANAGERE
TQ:DIST:DAVANAGERE-577001
6. MANJULA
W/O SHIVAYOGAYYA SOPPINAMATH
AGE:49 YEARS
OCC:HOUSEHOLD WORK
R/O:KURUBAGERI, RANEBENNUR
TQ:RANEBENNUR
DIST:HAVERI-581115
7. RUDRAYYA
S/O PUTTAYYA HUBBALIMATH
AGE:53 YEARS
OCC:BUSINESS
R/O:KURUBAGERI, RANEBENNUR
TQ:RANEBENNUR
DIST:HAVERI-581115
... APPELLANTS
(BY SRI AVINASH BANAKAR, ADVOCATE)
AND :
SRI.KOTRAYYADEVARU
@ GURUBASAVADEVARU
GURU MURUGA RAJENDRA SWAMY
MOODALAMATH @ VIRAKTHAMATH
AGE:39 YEARS
OCC:DHARMOPADESHA &
MANAGEMENT OF TRUST
R/O:RANEBENNUR
TQ"RANEBENNUR
DIST:HAVERI-581111
... RESPONDENT
THIS APPEAL IS FILED U/SEC. 100 R/W ORDER XLI
RULE 1 OF C.P.C. AGAINST THE JUDGMENT AND DECREE
DATED 03.08.2015 PASSED IN R.A. NO.36/009 ON THE FILE OF
THE ADDITIONAL SENIOR CIVIL JUDGE, RANEBENNUR,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED 30.06.2009 PASSED IN O.S. NO.200/2007
ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN.) AND I
ADDITIONAL J.M.F.C., RANEENNUR, DISMISSING THE SUIT
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FILED FOR DECLARATION, POSSESSION AND DAMAGES WITH
MESNE PROFITS.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THIS COURT, DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the appellants No.1 to 7 in R.A. No.36/2009 on the file of Senior Civil Judge, Ranebennur. The learned Senior Civil Judge reversed the judgment of the trial Court in O.S. No.200/2007 and decreed the suit of the respondents.
2. The facts are that property bearing C.T.S. No.2355 was the ancestral property of Rachota Swamy Guru Annadana Swamy Viraktamath. He bequeathed this property under a Will dated 18.10.1932 to one Basava Swami Guru Rachotaswamy Mudalamath by appointing him as the successor of the Math. The said Will contained a stipulation that the bequeathee had no right to transfer or alienate the property bequeathed to him under the Will. The allegation is that when this Basava Swami Guru Rachotaswamy Mudalamath was not in sound state of mind due to his old age, the defendants were able to obtain a :4: registered lease deed dated 07.10.1986 from him in respect of the suit property. On this basis, the defendants contended to be permanent lessees on annual rent of Rs.200/-. Defendants also filed a suit O.S. No.316/2005 for perpetual injunction. When the plaintiff received summons in that suit, he came to know about the lease deed having been obtained by the defendants from the said Basava Swami Guru Rachotaswamy Mudalamath. Therefore, the plaintiff brought a suit stating that the said executor of the Will, Basava Swami Guru Rachotaswamy Mudalamath had no right to execute the lease deed as per one of the conditions of the Will and the lease executed by him in favour of the defendants was void. The plaintiff instituted the suit to take possession of the suit property by terminating the tenancy. Since defendants did not vacate the suit property, he filed the suit.
3. The defendants contended that the Will did not contain any such condition prohibiting alienation by bequeathee. They denied that they obtained the lease deed, taking undue advantage of the old age of Basava Swami Guru Rachotaswamy Mudalamath. They asserted their :5: possession on the basis of the lease deed dated 07.10.1986. They also contended that plaintiff had no right to terminate the said tenancy by issuing notice dated 01.02.2006.
4. The trial Court, by its judgment and decree dated 30.06.2009 dismissed the suit. The trial Court held that termination of the tenancy was not in accordance with law. Since the defendants had taken up a contention that they had perfected the title by adverse possession, the issue pertaining to it was also held in negative. When the plaintiff preferred an appeal to the Court of Senior Civil Judge, it held that termination was proper. Though the defendants contended that they were permanent lessees, yet they can be evicted by issuing proper notice. The First Appellate Court held that the notice issued by the plaintiff was proper. Therefore, First Appellate Court had to reverse the findings of the trial Court and to decree the suit.
5. The learned counsel for the appellant argues that the plaintiff issued a notice under Section 111 of Transfer of Property Act, 1882 (for short 'the Act'), which is not proper. Defendants are the permanent lessees. Therefore, they :6: cannot be evicted. He argued for sustaining the judgment of the trial Court.
6. On perusal of the judgments of the First Appellate Court, it becomes very clear that the learned Appellate Judge has given clear finding for reversing the judgment of the trial Court. The First Appellate Court has clearly held that the bequeathee under the Will had no right to alienate, and therefore, he had no right to lease the property. For the reason that the defendants are holding the suit property on lease, the plaintiff had to issue a notice, which has also been held to be proper. Relying upon the judgments of the Hon'ble Supreme Court, the First Appellate court has come to a right conclusion that even a permanent lessee can be evicted by issuance of notice. The argument of the appellants' counsel that lease cannot be terminated under Section 111 of the Act cannot be accepted. Though Section 111 of the Act is mentioned in the notice, but termination is under Section 106 of the Act only. In fact what Section 111 of the Act says is that termination of lease by issuance of notice also amounts to determination of lease. These being the findings of fact of the First Appellate Court and when :7: they are found to be well reasoned, I do not find that a question of law arises to admit this appeal. Therefore, appeal is dismissed.
Sd/-
JUDGE hnm