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2002 DIGILAW 796 (KAR)

RAMAJI KOTIAN, ADULT v. LINGAPPA POOJARY

2002-12-20

body2002
SALDANHA, J. ( 1 ) I have heard the learned Advocates on both sides. Mr. Sripathy, learned Counsel who represents the petitioner submits that the trial court was in error in the first instance in having refused a decree under both heads because it was demonstrated that the respondent has resigned his job from the tile factory in Mangalore, purchased two plots of agricultural land, built a house and shifted to Kurpe village in Bantwal Taluk. What he submits is that the trial court was again in error in having refused the decree on the ground that the premises had been kept locked after the tenant had shifted merely because it was contended that the premises have been used in between and it is his submission that where the tenant effectively vacates and moves elsewhere but still holds on to the premises and keep them locked and only for record purposes occasionally opens the place and makes a pretense to use the same that this circumstance would not be tantamount to the requirement of residing there. On the evidence before the trial court he submits that a decree ought to have been passed under both heads and that the revisional court was further in error in having overlooked the legal position and dismissed the revision petition. ( 2 ) MR. Rai, learned Counsel who represents the tenants points our that it was not merely oral evidence on which the proceedings was defended but that a whole lot of documents were produced including the evidence of the fact that the wife was still employed at the tile factory and his submission is that because of this material the suit was rightly dismissed and that the revisional court was equally justified in refusing interference. ( 3 ) I have heard the learned counsel on both sides and I have re examined both the legal and the factual position. ( 3 ) I have heard the learned counsel on both sides and I have re examined both the legal and the factual position. The evidence produced by the petitioner landlady among other things covers one very crucial area namely the fact that the Voters List indicates that the tenant and the family have shifted to Kurpe Village and that they are residing there and there are also sale deeds which have been produced indicating that two properties which includes a house have been purchased buy the tenant and with this evidence, it would be impossible to hold that an agriculturist of very moderate status would be running two establishments when his main occupation namely agricultural work is at the village. Also, it would be impossible to hold that the wife is living separately or that the children are staying away from the parents and on an over all view of the evidence itself it is very clear that the tenant has shifted his residence, has virtually abandoned the tenancy and has merely kept the premises locked in an effort to hang on to them, it is in this background that both the orders of the trial court and the revisional court will have to be set aside and the suit will have to be decreed on both counts. The trial court shall accordingly draw up the decree. ( 4 ) WITHOUT prejudice to his basic submissions, respondents learned Advocate submitted that in the light of the order passed by this Court that at least one years time be granted to restore the possession. In cases where the party has no other accommodation, this Court will certainly grant the maximum permissible indulgence but his is not such a case and the trial court would have been justified in directing that the possession be restored latest by 31. 12. 2002. However, in view of certain other submissions made by the respondents learned Advocate I consider it reasonable to grant to the respondent time up to 31. 5. 2003 as an outer limit within which to restore possession, though the respondent shall make every possible effort to restore possession at the earliest. 12. 2002. However, in view of certain other submissions made by the respondents learned Advocate I consider it reasonable to grant to the respondent time up to 31. 5. 2003 as an outer limit within which to restore possession, though the respondent shall make every possible effort to restore possession at the earliest. It is made clear that under no circumstances will any extension be granted and the time for restoration of possession is condition on the following: - (a) That the respondent shall file with the trial court within an outer limit of four weeks from today an unconditional undertaking to the effect that the vacant possession will be restored to the petitioner at the very earliest but in any event on or before 31. 5. 2003. This time is granted on condition that the respondent satisfies the trial court that all arrears have been cleared within a period of four weeks from today. The respondent shall also be liable to clear the arrears from month to month assuming there are any and shall also clear the rent due upto the date of restoration of possession. The respondent shall also ensure that during the interim period no third party is put in possession of the premises nor shall they be alienated or any third party rights created. If any breach of these conditions take place, the petitioner will be entitled to execute the decree. ( 5 ) WITH these directions, the HRRP which partially succeeds to stand disposed of. No order as to costs. --- *** --- .