NATHURAM GOVINDRAM v. SUBHASH TAVANAPPA — 1996 DIGILAW 504 (KAR)

M. B. VISHWANATH, J. ( 1 ) THIS second appeal under Section 100 of the C. P. C. has been filed by the defendant challenging the judgment and decree passed by the III Additional District Judge, Belgaum, in r. A. No. 17/1994, dated 2. 4. 1996, confirming the judgment and decree passed by the I additional Civil Judge, Belgaum, in O. S. No. 135/1990 dated 8. 2. 1994. ( 2 ) THE case of the respondent-plaintiff is: The suit property is a non-residential building. Sudharam Devendrappa and his son Kirankumar sudharam were the owners of the suit property. The plaintiff purchased the suit property from the said owners under registered sale deed dated 27. 7. 1988 for Rs. 50,000/ -. Before the plaintiff purchased the suit property, the suit property had been mortgaged by Sudharam Devendrappa in favour of Prakash under mortgage deed dated 30. 4. 1970 (Ex. P4 ). The Mortgage period expired on 30. 4. 1984 After the expiry of the mortgage period, the said Sudharam Devendrappa redeemed the mortgage and obtained registered reconveyance deed dated 4. 5. 1984 (Ex. P-5) in his favour. During the subsistence of the mortgage, mortgagee Prakash inducted the defendant (appellant herein) as his tenant in the suit property. After the redemption of the mortgage by Sudharam devendrappa, the relationship of landlord and tenant between mortgagee Prakash and the appellant-defendant came to an end. Since the date of redemption of the mortgage, the appellant-defendant ceased to be a tenant. Hence the suit for possession and other incidental reliefs. ( 3 ) IN the written statement, among other things, the appellant-defendant has contended that the mortgagee had been authorised by the mortgagor to enjoy the property transferred or by leasing it to others. The lease created by the mortgagee in his favour was therefore with due permission and consent of the mortgagee. With the consent of Sudharam Devendrappa, Nathuram govindram Panjabi (partner of appellant-defendant firm) purchased the stock-in-trade in the name of his minor son Motiram on 23. 2. 1971 and continued in possession of the property as a tenant. The appellant-defendant has contended that he could be evicted only according to the provisions of the Karnataka Rent Control Act and the suit for possession was not maintainable. 2. 1971 and continued in possession of the property as a tenant. The appellant-defendant has contended that he could be evicted only according to the provisions of the Karnataka Rent Control Act and the suit for possession was not maintainable. ( 4 ) THE Trial Court has come to the conclusion that the appellant-defendant was no longer a tenant after redemption and so the suit for possession by the respondent-plaintiff was maintainable and granted the decree. The Trial Court rejected the plea of the appellant-defendant that the appellant-defendant could be evicted only as per the provisions of the K. R. C. Act. ( 5 ) AGGRIEVED by the judgment and decree passed by the Trial Court, the appellant-defendant filed r. A. No. 17/1994 before the III Additional District Judge, Belgaum. The Learned District Judge agreed with the findings given by the Trial Court and dismissed the appeal filed by the appellant-defendant. ( 6 ) BOTH the Courts have come to the conclusion on the basis of the crucial and unimpeachable documents and evidence that the lease in favour of the appellant-defendant was created during the subsistence of the mortgage. ( 7 ) BOTH the Courts, relying on the authorities of the Supreme Court, held that after the redemption of the mortgage, the tenancy in favour of the appellant-defendant did not survive. ( 8 ) IT is argued by the Learned Counsel for the appellant-defendant that the tenancy was pre-existing. e. , the tenancy came into existence even prior to mortgage and therefore the tenancy survived even after it was redeemed by Sudharam Devendrappa. ( 9 ) IT is useful to refer to the salient facts again. ( 10 ) THE mortgage was created by Sudharam Devendrappa on 30. 4. 1970 in favour of Prakash for a period of 14 years. This means, the mortgage continued upto 30. 4. 1984 and it was redeemed through reconveyance deed dated 4. 5. 1984. ( 11 ) NOW we have to see whether the tenancy in favour of the appellant-defendant was created by the mortgagee between the period 30. 4. 1970 and 4. 5. 1984 or whether the tenancy existed even prior to 30. 4. 1970. ( 12 ) AS already stated while narrating the facts, the appellant-defendant has stated in paragraph-4 of his written statement that the lease was created by mortgagee Prakash. 4. 1970 and 4. 5. 1984 or whether the tenancy existed even prior to 30. 4. 1970. ( 12 ) AS already stated while narrating the facts, the appellant-defendant has stated in paragraph-4 of his written statement that the lease was created by mortgagee Prakash. In paragraph-8 (a) of his written statement, the appellant-defendant has stated that Nathuram Govindram Panjabi (partner of the appellant-firm) purchased the stock-in-trade in the name of his minor son on 23. 2. 1971 and continued in possession of the suit property as a tenant. The admission made by the appellant-defendant is unmistakable. The tenancy commenced on 23. 2. 1971 during the subsistence of mortgage. ( 13 ) EX. P-11 is the certified copy of the written statement filed by the present appellant-defendant in O. S. No. 411/1984. O. S. No. 411/1984 was a suit filed by mortgagor Sudharam Devendrappa against the present appellant-defendant and mortgagee Prakash, In paragraph-5 of his written statement, the appellant-defendant has clearly admitted that Prakash (second defendant in o. S. No. 411/01984), who was a possessory mortgagee, leased the suit property in his (present appellant-defendant) favour. ( 14 ) EX. P-12 is the certified copy of the written statement of the present appellant-defendant (who was sixth defendant in O. S. No. 799/ 1989) in O. S. No. 799/1989. In paragraph-3 of his written statement, the present appellant-defendant has admitted that mortgagee Prakash leased out the suit property to him (appellant-defendant herein) on a monthly rent of Rs. 125/ -. ( 15 ) EX. P-13 is the petition filed under Section 19 (3) of the K. R. C. Act by the present appellant-defendant. In paragraph-2 of the petition, he has clearly admitted that it was Prakash, who was a possessory mortgagee, who inducted him as a tenant. ( 16 ) IN O. S. No. 799/1989, the present appellant-defendant was the sixth defendant. Ex. P-14 is the certified copy of the application under Section 151 of the C. P. C. filed by the present appellant- defendant and the affidavit in support of the application. In the affidavit, the present appellant-defendant has admitted that it was mortgagee Prakash who inducted him as tenant. Ex. P-14 is the certified copy of the application under Section 151 of the C. P. C. filed by the present appellant- defendant and the affidavit in support of the application. In the affidavit, the present appellant-defendant has admitted that it was mortgagee Prakash who inducted him as tenant. ( 17 ) RELYING on the evidence adduced, crucial and unimpeachable documents referred to in brief above, both the Courts have come to the conclusion that the appellant-defendant was inducted as tenant during the subsistence of the mortgage and after the mortgage was redeemed, the tenancy came to an end and granted the decree. Both the Courts have relied on Supreme Court decisions to hold that the tenancy created by the mortgagee comes to an end with the redemption of the mortgage. ( 18 ) THE conclusions reached by the Courts below are findings on fact. The findings are neither perverse nor illegal. ( 19 ) IT is argued by the Learned Counsel for the appellant-defendant that this is not a case which could be decided on first impression and which could be thrown out at the threshold. These are metaphorical arguments with which I do not agree. We have to go by considerations of law as contemplated under Section 100 of the C. P. C. ( 20 ) THE Learned Counsel for the appellant-defendant took me through some evidence to impress upon me that there was preexisting tenancy. ( 21 ) AS I have already state, both the Courts below have relied on relevant evidence, crucial and unimpeachable documents in reaching the conclusion, on facts, that the lease in favour of the appellant-defendant was created during the subsistence of the mortgage. ( 22 ) IT has been laid down by the Hon'ble Supreme Court in RAMANUJA NAIDU v. V. KANNAIAH NAIDU AND ANR AIR1996 SC 3021 , JT1996 (3 )SC 164 , (1996 )2 MLJ44 (SC ), 1996 (2 )SCALE718 , (1996 )3 SCC392 , [1996 ]3 SCR239 , 1996 (2 )UJ70 (SC ). that "it is now well settled that concurrent findings of fact of Trial Court and first appellate Court cannot be interfered with by the High Court in exercise of its jurisdiction under section 100 of Civil Procedure Code. that "it is now well settled that concurrent findings of fact of Trial Court and first appellate Court cannot be interfered with by the High Court in exercise of its jurisdiction under section 100 of Civil Procedure Code. " the Supreme Court has been pleased to observe further "the concurrent findings of the Courts below were findings of fact and were not open to challenge in second appeal. " ( 23 ) FOR the aforesaid reasons, in my opinion, no substantial question of law arises for decision by this Court, Accordingly the appeal is rejected at the admission stage. In the interest of justice, the appellant-defendant is granted three months time to vacate and handover possession of the suit property to the respondent-plaintiff.