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2003 DIGILAW 295 (KAR)

MOHAMMAD JAFFAR v. MUNAFSAB

2003-03-24

K.BHAKTHAVATSALA

body2003
BHAKTHAVATSALA, J. ( 1 ) THIS is plaintiffs Regular Second Appeal filed under Section 100 of Code of Civil Procedure, directed against judgment and decree dated 13. 7. 1999 passed in RA No. 77/95 on the file of II Additional district Judge, Dharwad, reversing the judgment and decree dated 20. 9. 1995 passed in O. S. No. 3/94 on the file of Civil Judge (Sr. Division) Haveri. ( 2 ) THOUGH notice was issued to the respondent by RPAD, the same was returned with an endorsement, stating that the defendant refused to receive the RPAD. ( 3 ) WHEN the case was listed for admission, the learned Single judge of this Court, on 30. 5. 2000, admitted the Appeal on the following substantial question of law:- whether the Appellate Court was correct in law in directing the appellant-plaintiff to approach the Rent Court for eviction even though respondent-defendant denied title of the appellant to the suit property and his relation with him as a tenant? ( 4 ) THE records of the Lower Court and first Appellate Court are before this Court. ( 5 ) FOR the purpose of convenience and better understanding, the appellants and respondents to this Appeal are hereinafter referred to as the plaintiffs and the defendant as arrayed in the original Suit. ( 6 ) THE brief facts of the case of the plaintiffs leading to the filing of the Regular Second Appeal may be stated as under:- on 12. 1. 1994, the plaintiffs filed a suit for declaration and recovery of possession of the Suit Schedule property from the defendant along with past mesne profit of Rs. 4,800/- and future mesne profits, with costs from the defendant. It was registered in o. S. 3/94 on the file of Civil Judge (Sr. Division), Haveri. The defendant entered appearance and filed his written statement, contending that the plaintiffs are not the owners of the suit property and the Suit for declaration of his title to the Suit property, was not maintainable in the absence of other female heirs of deceased Ummarsab. The defendant further contended that he has occupied the Suit premises and residing thereon along with his, brother, mother, but they are not made parties. The defendant has specifically denied the relationship of land-lord and tenant between him and the plaintiffs. The defendant further contended that he has occupied the Suit premises and residing thereon along with his, brother, mother, but they are not made parties. The defendant has specifically denied the relationship of land-lord and tenant between him and the plaintiffs. It was also contended by the defendant that he never paid any rent in respect of the Suit premises to the plaintiffs or their father at any time and therefore, there was no question of paying any rent in respect of the Suit house, as the defendant is occupying the said house as owner thereof. Thus, the case of the defendant was of total denial and claimed adverse possession to the Suit property. In view of the pleadings on record, the learned Civil Judge framed the following issues:- (I) Whether the plaintiffs prove that they are the owners of the suit property? (ii) Whether defendant is the tenant of the suit property on rental basis at the rate of Rs. 200/- per month or is a trespasser in the suit property? (iii) Whether defendant proves that suit property belongs to his mother Khatejabi and that as such defendant along with his brother Jafarsab and mother Khatejabi reside therein as owner? (iv) Whether defendant proves that he has perfected his title by way of adverse possession for more than statutory period? (v) Whether the suit of the plaintiff especially relief of recovery of possession, is not maintainable for want of necessary parties like Khatejabi and Jafarsab? (vi) Whether defendant further proves that relief of recovery of vacant possession of the suit property by the plaintiffs is not tenable under Section 21 of the Karnataka Rent Control act? (vii) Whether suit of the plaintiff is barred under Articles 64 and 65 of the Limitation Act? (viii) Whether plaintiff is entitled for the relief sought for declaration of title and for recovery of vacant possession and for part mesne profits of Rs. 4,800/- from the defendant? (ix) What decree or order? in support of the case of the plaintiffs, the plaintiff No. 1 got himself examined as P. W. 1, besides examining their previous tenant as P. W-2 and got marked Exs-P1 to P5. In rebuttal, the defendant got himself examined as D. W. 1, besides examining one mohammadusuf Abdulrahimansab Jakati as D. W-2. The defendant has not got marked any document. In rebuttal, the defendant got himself examined as D. W. 1, besides examining one mohammadusuf Abdulrahimansab Jakati as D. W-2. The defendant has not got marked any document. After the evidence was closed on either side, the learned Civil Judge, after hearing arguments and perusing evidence and material on record and for the reasons recorded in the impugned judgment, answered issue No. (i) in the affirmative, issue Nos. (ii) and (vii) partly in the affirmative, issue nos. (iii) to (vii) in the negative and ultimately, answered issue No. (ix) in favour of the plaintiffs and decreed the Suit of the plaintiffs declaring that the plaintiffs are absolute owners of the Suit property, and directed the defendant to deliver vacant possession of the same to the plaintiffs within two months from the date of judgment. Further, the defendant was directed to pay mesne profits in respect of the suit property at the rate of Rs. 100/- per month from January 1992 till filing of the Suit and till delivery of vacant possession of the Suit in favour of the plaintiffs and also pay costs. Feeling aggrieved, the defendant challenged the judgment and decree of the Trial Court before the first Appellate Court in RA 77/95. After hearing arguments of the learned Counsels for the parties, the learned District Judge of the first Appellate Court formulated the following three points for consideration:- (i) Whether the plaintiffs are the owners of the suit house? (ii) Whether the plaintiffs suit is maintainable in the present form? (iii) Whether the judgment and decree under appeal call for interference? ( 7 ) THE learned District Judge considered all the above-said points together for consideration. For the reasons recorded in the impugned judgment dated 13. 7. 1999, the learned District Judge answered point No. (i) in the affirmative and held that the plaintiffs are the owners of the Suit house, but answered point No. (ii) in the negative, holding that the plaintiffs Suit was not maintainable in the form, in which it was framed and thus, answered point No. (iii), holding that the judgment and decree of the Trial Court called for interference. Thus, allowed the Appeal and set aside the judgment and decree of the Trial Court, with a direction to the plaintiffs to seek their remedies before the competent Court under the Karnataka Rent Control Act, if desired. Thus, allowed the Appeal and set aside the judgment and decree of the Trial Court, with a direction to the plaintiffs to seek their remedies before the competent Court under the Karnataka Rent Control Act, if desired. This is impugned in this regular Second Appeal. ( 8 ) HEARD arguments of the learned Counsel for the appellants/ plaintiffs. ( 9 ) IN support of the case of the appellants, the learned Counsel cited the following decisions:- (i) ABDULLA BIN ALI AND OTHERS vs GALAPPA AND OTHERS1 (ii) SULTAN AND OTHERS vs GANESH AND OTHERS2. ( 10 ) AT the very outset, I must mention that the first Appellate court viz. , the District Judge, allowed the Appeal and dismissed the Suit solely following the decision reported in VENKATAPATHY vs B. K. NAGARAJ3. In the above-said Venkatapathys case, the division Bench of this Court considered the decision of the Apex court reported in SULTAN AND OTHERS vs GANESH AND others, but distinguished. Further, the facts and circumstances of Venkatapathys case, supra, are not identical to the case on hand. Since the Trial Court finding on Issue No. (ii) that the defendant was a trespasser and he was not a tenant under the plaintiffs, and when that finding was not disturbed by the First appellate Court, the learned District Judge erred in following the decision rendered in Venkatapathys case. Further, it is relevant to mention that though the learned District Judge answered point No. (i) in the affirmative affirming the finding of the Trial Court on issue no. (i) holding that the plaintiffs are the owners of the Suit House, the learned District Judge has erred in dismissing the Suit. In short, the findings of the learned Civil Judge recorded on Issue Nos. (i) and (ii) in favour of the plaintiffs were not disturbed by the First appellate Court, but the First Appellate Court allowed the Appeal and dismissed the Suit. According to the decision rendered in abdullas case, supra, when the tenant denied the title of the landlord in a Suit for possession and mesne profits, the jurisdiction does not depend upon the defence taken by the defendant in the written statement. According to the decision rendered in abdullas case, supra, when the tenant denied the title of the landlord in a Suit for possession and mesne profits, the jurisdiction does not depend upon the defence taken by the defendant in the written statement. Further the Apex Court has held in Sultans case, supra, holding that when the defendant claimed title by adverse possession and thus denied relationship of land-lord and tenant, the tenant is not entitled to claim protection under the Rent Control Act. Thus, both the cases cited by the learned Counsel for the appellants are 1. AIR 1985 SC 577 2. AIR 1988 SC 716 3. 1991 ILR (KAR) 3150 of avail to the case of the plaintiffs/appellants. Therefore, for the reasons said supra, I answer the point for consideration in the negative in favour of the plaintiffs and against the defendant. ( 11 ) THEREFORE, I pass the following order:- the Regular Second Appeal is allowed with costs and the impugned judgment and decree passed by the First Appellate Court in RA. 77/1995 on the file of the II Additional District Judge, Dharwad, are set aside and the judgment and decree dated 20. 9. 1995 passed in O. S. No. 3/94 on the file of Civil Judge (Sr. Division), Haveri, are restored. ( 12 ) IN view of restoration of judgment and decree of the Trial Court, the defendant is granted two months time from today to vacate and deliver vacant possession of the Suit House to the plaintiffs. Further the defendant is directed to pay mesne profits at the rate of Rs. 100/- per month for January 1992 till the date of delivering vacant possession of the Suit house to the plaintiffs. --- *** --- .