Karnataka High Court
Sri K G Ramakrishna S/O Sri K R Govindaiah vs Smt K R Sarojamma W/O Late K N ... on 13 October, 2008
Author: Huluvadi G.Ramesh
Bench: Huluvadi G.Ramesh
IN THE HIGH COURT OF KARNATAKA AT BANGAL(§}:l§ ~
Dated this the 13" day orocmber, zoos " ' ;; f "
Before
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SriKGRamakrishna, 763ml --_
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Bangalore56{}002 _ Appellant
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'*W.!qF R Guptha
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goal';/a # 573, sajgm Rao Road
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-' StiKG Satiayanarayana
Sfo K R Govindaiah
# 2, Avenlw Road Chow}:
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4 Sri K G Bhakthavatchalazn
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# 44, Near Nandi Book House
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Milan Fabrics, Shop # 3 & 4 _
M01131! Vihar Building, D K "
Bangalors 560 092 '
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Mohm Vihm-'--L%gdge, DK
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This Fi'z9:§t-.A;§pca1'vi:s s.95 cf thc cpc agnm: the judgment
and dcgcxamdaxed'-»2.3.1.2ooe in as 1355/2002 on the file of the 13*
< ,. J"&e.,=«,..Baa1g.alore.
A » Exppeal coming on far Fina} Hearing this day, she Court
JUDGMENT
x T Qppean is by thc 2*' defendant being aggiewd by tizcjudgnent A' pamed by the xvm Add}. City Civil Judge, Bangalore "in as . ;Ms¢3sx2oe2 in decreeing the suit of the pIaintifl's for mm and wpmu». possession of 1i6"' share inthe suit property which has bwn ordered to be efi'ectwwp¢rO26Ri3,CPCandwiii1aseparatecnqnirytodcte1minefl1e wt, Ramahishnaiaha also died leaving behiné fire plaitxiiifs. According to the appellant, respondents 1 and 2 are the leasors whe suscceded to t£_ieV_of lessees in possession and enjoyment of lf3;"Kshme "' 'V ieased out by K R N.-mjtmdaiah. As a matter er tight ammwa expiry cftwetve yaars as per the lsgseesf I continued the monthly tenancy tetmmah' at' the" o':f month.
Plaintiffs who am a 1eg al"notice dated 3.8.2001 and the for partition and Possession and = ma am 2 befote the man court. me ma: court ;a.ma.g
1. fimw that they are fire co-ownets of the suit
- vs«*i£%:« ziefendamm 1 to 3?
3 prove. that they are entitled for H3": shame in the . '£s:ii«n§1uIsj";!I:é)pe11y and scparatc pomsion of the same by mates ',3. pxamzem are entitled for cnquixy into the mm profits x j md ésfendants are Iiabfe to renéer accounts'? VA " --.,'f6wimmfiewsamfl1e parties entitled? : §._ __ To what ordar or decree?' regard to the nature of the lease that existed between the panics for mesne profits. Accordingly, he hm sought for setting V' 2 decree passed by the trial court in yanting messrcligf steparatet Vt ' possession of the property in question. It"-«is property in question is a building and' joy-..metes L' bounds.
Per contra, counsel an: the pvla'mIifi's, vehemently contettfgiezi the' to 13"' share in the property in has not been disputed.
So far as it is well settled by the Apex Court itself in :e§§..+t'e%c=a'j's;.a [: gas & Ora Vs Dmwika mm SC I09 finat co-owners me legally to go for of arrangement for the enjoyment of their are flee to lay cbwn any team concerning the and there is no bar for fiat. Further, leaned _ counsel for the respomient retying upon the judgnmtt of the "Beech of the Calcutta High Court in the case of Himurrams t Vs Sbiblaendre New Fodder & Ore » AIR 1979 catam 135 ooritendedtitattenaneycanbecreatedin an undivided share by a co-shaver in favour of another co-shaver and submitted that the contention of the J1?"
appellanfs counsel that separate suit for ejactment has to be not hold water. Having regard to the nattzre ef the when a suit was filed for partition and ' right cmeated in favour offltc dcfendanm beittga béitttilar V' the larger interest in claiming file s1tit'Vpa:1iti"o11.. and the question at" maintainvmgza sepgmmh ejectrnmt not arise am there is no exmr cmnrniuéd 'decreeing the wk and accordingty, sought Vt t Having parties, the point that would arise fits trial court is justified in order to hand over possession by holdingittixgtuiryrt and also to hold separate enquiry to mesrte profits?' 'date of institution ef the suit till delivery of whgtlmer com: Qught to have held that the plaintiffs suit for ejectment having regard to the fact there in favenr ef the predeoesscx of the defendant by the ..__'pmimsgoafiammsxormepmurrs; whatordcr. 'A .-__1: igmaaieputed fact that the pxaimm have got U3" share in the in question. The lease orimnhally was executed dating June 1969 for W also determinecl New remains the suit for partition. In the the parties were restored to the original position after and what remains to be determined and iaexgitied is_ii1e' 'sfim_Vin_£ne~ 7 joint property by metes and bounds and to 4' ihat, it is not for the plaintifis to splii :14; "to est:;::i;s;:§;e , take poseessim of the property in course, as rightly arguw by the is' %a m'i} for partition and pomessinm vufherein the rig! of the plaintiffs to seek ejectment suit or seekktg possession in V In the mus} course, even in a suit being any relationship of have prefexred to file a suit for ejeetment. leese though the tenant continued to be in V. '_ but also as a cewowner, in such circmnstance, the merge's vwyifla the ownership. Then rightly the piaintitfs have flied A pariah" 'V possession.
case cited abow, the Apex Court has held &at these e for payment of ceatien by a ca-owna who is in i.e., under the law, every co-owner ofundivided pmpcriy is henfltifleé to enjoy the whole of the pmperty and is not liable to pay Jr' eompensation to the other co-owner who has not chosen to enjoy the propeny. The liability to pay compensation arises against the who deliberately excludes the other co-owners from the enjogfixieiit'-tithe property. Co-owners are legally eompetent to come arrangement for the enjoyment of the lay it it down any terms concerning the..enjoy1nei;t '*Tl!.'8 ebove legal position is clear. it it i ll V A. In the cage. .igf.tt:e pzedecessor was leased out iyvee an ageement to pay monthly rent of Rs.'I550/¢.-- the lease was created during June 1969 and em was 'tam: pe1iodloi'itvs'eli%el:j§*eeis and that has also expheti. Afier the expiry ofiwelve y";-as elthougls. is a tenancy by holding over, the same legal notice expmsing the intention of the mt want to continue the lease fmther. Only regardm g the property the share of the plainiifis to the extent of 'i:'.3'd had tiovtifieen iéentmed. In that View ofthe matter, ifthe plaintiffs have for partition by metes aid bounds and for pomwsioo, necessarily to eject the defendants who were in possession not only ae co-owners also as tenmt, after determination in View ofthe termination of the tenancy, plaintfis can very well seek for possession in the suit filed for XV Judge partitien and separate pessession. Even the decree passed by in the foam ofa prelirninary decree as a separate _¢ determine and idenI1fy' the share of the plam' _ by mates and bounds as requimd C) 261'3',,_é3PC. me fact am the plaintifis have got their ';--')»1:.'é$-«.'i,<=;te:r¥1it'i----'.:.(.iV i'igl'_i'IFs 'gsajment "
af compensation is concemed, it is in the rental per month to the share at" the plaintifl"
defendants to pay flue mane ptof1ts fo§:" sfiit till delivery ofthe property. ommg, .10 the court having jurisdiction to compensation and damages as well.
Accqtditygly, yviiilci "ti3«e.._pQ5nts raised for determination in favour of .1 is dismissed. Parties to hearing am: casis i11"tiai:s«.appfiV:§l; '.
Sd/-