Karnataka High Court
Sri Venkatappa vs Sri K Venkatesh Rao on 5 March, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE R. NATARAJ
R.S.A. NO. 823 OF 2021 (POS)
BETWEEN:
SRI. VENKATAPPA
S/O NARASIMHAPPA
AGED ABOUT 61 YEARS,
R/AT KONAPALLI BATTALAHALLI POST,
CHINTAMANI TALUK,
CHIKKABALLAPURA DISTRICT.
...APPELLANT
(BY SRI. M.R.RAJAGOPAL, SR. ADVOCATE A/W
SRI. H.N.BASAVARAJU, ADVOCATE (THROUGH VC))
AND:
SRI. K. VENKATESH RAO
S/O K. MANJUNATHAIAH
AGED ABOUT 71 YEARS,
R/AT NO.241 'MAHATHI'
1ST 'C' CROSS, 4TH MAIN,
6TH BLOCK, BANASHANKARI 3RD STAGE
BENGALURU-560085
SINCE DEAD BY HIS LRs.
CAUSE TITLE IS AMENDED VIDE
ORDER DATED 24.02.2022.
1(a) SMT. SEETHALAKSHMI
W/o LATE VENKATESH RAO
AGED 66 YEARS
1(b) SMT. SAVITHA
D/O LATE VENKATESH RAO
AGED 45 YEARS
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1(c) SRI. VENUGOPAL
S/O LATE VENKATESH RAO
AGED 42 YEARS
1(d) SRI. SANDEEP K.V.
S/O LATE VENKATESH RAO
AGED 40 YEARS
1(e) SANJEEV
S/O LATE VENKATESH RAO
AGED 48 YEARS
...RESPONDENTS
(BY SRI. PRASANNA KUMAR R.S. ADVOCATE FOR CAVEATOR
RESPONDENT NO.1(a TO c))
THIS R.S.A. IS FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND
DECREE DATED 17.08.2021 PASSED IN RA.No.38/2020 ON THE
FILE OF THE SENIOR CIVIL JUDGE AND JMFC, SIDLAGHATTA,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 02.06.2020 PASSED IN OS.No.326/2012
ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC,
SHIDLAGHATTA.
THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is an appeal filed by the defendant in O.S. No.326/2012 challenging the concurrent finding of fact recorded by the Trial Court and First Appellate Court that the plaintiff is entitled to eject the defendant from the suit schedule property.
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2. The parties shall henceforth be referred as they were arrayed before the Trial Court.
3. The plaintiff claimed to be the owner of the suit property and that the defendant was a tenant therein. The plaintiff alleged that defendant failed to pay rent of Rs.1,600/- per month from March 2011 till 05.04.2012 and fell in arrears of Rs.20,800/- as on 05.04.2012 and thus terminated the tenancy and filed a suit for ejectment.
4. The defendant contested the suit and claimed that he had entered into an agreement to purchase the suit schedule property for a total sale consideration of Rs.21,00,000/- and had received a sum of Rs.2,00,000/- as advance. He claimed that he was ready and willing to pay remaining consideration of Rs.19,00,000/- and that the plaintiff was dodging the conclusion of the sale transaction. The defendant claimed that he was in possession of the suit premises in part performance of the agreement of sale dated 16.02.2011.
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5. Based on these rival contentions, the Trial Court framed the following issues and additional issue:
1. Whether the plaintiff proves that the rate of rent for the suit schedule property is Rs.1,600/- per month and the defendant has not paid the rent from March-2011?
2. Whether the defendant proves that the signature in the rent agreement proposing to be his signature is forged one?
3. Whether the plaintiff is entitled to the possession of the suit schedule property as claimed by him?
4. Whether the plaintiff is entitled to mense profit? If so, at what rate?
5. What order or decree?
Additional Issues
1. Whether the defendant proves that the plaintiff has executed an agreement dated 16.02.2011 in his favour and he is in physical possession of the property?
6. The plaintiff was examined as P.W.1 and he marked documents as Exs.P-1 to P-4, while the defendant was examined as D.W.1.
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7. Based on the oral and documentary evidence, the Trial Court held that the defendant had admitted that he was a tenant in the suit premises. It also held that the plaintiff had lawfully terminated the lease in favour of the defendant. Insofar as the contention of the defendant that plaintiff had executed an agreement of sale, the Trial Court held that there was no proof to establish that the possession of the defendant was in part performance of the agreement of sale dated 16.02.2011. The Trial Court held that the defendant had failed to prove the execution of the sale agreement. Hence, it decreed the suit and directed to quit and deliver the vacant possession of the suit property to the plaintiff.
8. Aggrieved by the aforesaid judgment and decree, the defendant filed R.A. No.38/2020. In appeal, the defendant raised a question regarding jurisdiction of the trial Court to consider the suit filed by the plaintiff. It was contended that the rate of rent, admittedly, was a sum of Rs.1,600/- per month and the suit property lay 6 within the limits of Municipal Corporation and therefore, in view of Section 2(3)(e) of the Karnataka Rent Act, 1999, the provisions of the Karnataka Rent Act, 1999 was applicable and a suit for ejectment was not maintainable.
9. The First Appellate Court considered the contention urged by the defendant and held that the defendant had not raised such a contention in his written statement before the Trial Court and in view of Section 21 of the Code of Civil Procedure, 1908 (henceforth referred to as 'CPC' for short), the First Appellate Court held that the defendant was debarred from raising a question regarding jurisdiction at the appellate stage. The First Appellate Court also considered the oral and documentary evidence and in view of the admitted position that the defendant was a tenant in the premises in question and that the plaintiff was the owner, the First Appellate Court did not feel it necessary to dilate the decision in the appeal. It, therefore, held that the plaintiff was entitled to evict the defendant from the suit premises. 7
10. Being aggrieved by the aforesaid concurrent finding of fact recorded by both the Courts, the present Regular Second Appeal is filed.
11. The learned Senior Counsel appearing for the appellant submitted that the question regarding jurisdiction was fundamental to the case and it was incumbent upon the Trial Court to have applied itself to the question regarding jurisdiction. He submitted that the suit premises admittedly lay within the limits of Municipal Corporation of Shidlaghatta, and therefore, the provisions of the Karnataka Rent Act, 1999 were applicable. He, therefore, submitted that the Trial Court and the First Appellate Court must have considered the same. He also submitted that since the defendant had entered into an agreement of sale to purchase the suit property, the Trial Court and the First Appellate Court must have held that the possession of the defendant as a tenant had merged into possession in part performance of agreement of sale. He, therefore, submitted that both the Courts have 8 committed an error in directing ejectment of the defendant from the suit premises.
12. Per contra, learned counsel for plaintiff /appellant submitted that the relationship between the parties is not disputed and it is undisputed that the defendant had not paid the rent from March 2011 till April 2012. He submitted that the defendant did not tender the rent during the course of the suit, and therefore, he had committed a breach on his part to comply with his obligation under the lease deed dated 15.11.2007 to pay the rents as and when it fell due. He, therefore, prayed that the appeal filed by the defendant be dismissed.
13. Insofar as the first contention urged by the learned Senior Counsel is concerned, this contention was urged for the first time before the First Appellate Court and not before the Trial Court. Section 21 of CPC debars the defendant from objecting to the jurisdiction of the suit in the appellate or at the revisional stage and the same is extracted below :
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"21. Objections to jurisdiction. (1) No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.
2[(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.
(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.]
14. In that view of the matter, the defendant could not have raised a contention regarding the jurisdiction at the appellate stage or before this Court. Hence, the 10 contention raised is liable to be rejected. The reliance placed by the learned Senior Counsel on the judgment of the Hon'ble Supreme Court in the case of SAU.SARASWATIBAI TRIMBAK GAIKWAD vs. DAMODHAR D. MOTIWALE & OTHERS [(2002)4 SCC 481] is not helpful since in the said decision what was in issue was, whether the Civil Court had jurisdiction to decide a matter that fell within the jurisdiction of the Land Tribunal under Section 85 of the Bombay Tenancy and Agricultural Lands Act, 1948. The case on hand is entirely different than the one which is decided in the aforesaid judgment. Hence, the decision relied upon by the learned Senior Counsel is easily distinguishable on facts.
15. In so far as the contention urged by the defendant that he had entered into an agreement of sale dated 16.02.2011 and that he had paid a sum of Rs.2,00,000/- and that he was placed in part performance of the suit schedule property, the judgment of the Trial Court reveals that the defendant had not even marked 11 copy of the sale agreement dated 16.02.2011. The defendant had not established the requirements of Section 53A of the Transfer of Property Act, 1882 to claim the benefit of part performance. Be that as it may, unless there was evidence to establish that the possession of the defendant as a tenant merged with the possession under the agreement of sale dated 16.02.2011, he could not claim the protection of Section 53A of the Transfer of Property Act.
16. In that view of the matter, this Regular Second Appeal lacks merit and the same is dismissed, as no substantial question of law arises for consideration.
17. Before parting with the case, it is necessary to note that the defendant is in possession of the premises and is using it for residential purposes. Hence, time of one year is granted from today to quit and deliver vacant possession of the suit premises, subject to the defendant filing an affidavit undertaking that he would pay the rent at Rs.1,600/- per month for a period of one year and that he 12 would quit and deliver vacant possession of the suit premises to the plaintiff soon after expiry of one year, without driving the plaintiff to seek execution of the decree. He shall also undertake that he shall not sub-let or underlet any portion of the suit premises to any person and he shall maintain the same in good and tenantable condition. The affidavit shall be filed within ten days from today.
Pending I.A., if any, does not survive for consideration.
Sd/-
JUDGE hnm