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2012 DIGILAW 921 (KAR)

Mahadev v. M. A. Meera

2012-11-07

K.L.MANJUNATH

body2012
JUDGMENT K.L. MANJUNATH, J.—The concurrent findings of the Courts below are called in question by the appellant in this regular second appeal. 2. The facts leading to this appeal are as hereunder: Respondent filed the suit in O.S. NO. 1046/2005 on the file of V Additional First Civil Judge (Jr. Dn), Mysore, against the appellant herein to declare her as an absolute owner of the suit property and for possession and damages. 3. According to the plaint averments, one Shivagur Modaliyar was the full and absolute owner of the suit property. He died issueless. After his death, his wife Smt Tangachamma succeeded to the property and she had executed a Will in the year 1966 bequeathing the schedule property alongwith other properties in favour of Smt Shakuntala and others. On 17.4.1985, the plaintiff purchased the schedule property from the legatees of Smt Tangachamma namely Smt Janakamma, Smt Shakunthala, P. Sulochana, P.A. Krishnamswamy, P.A. Nanjundaswamy, and P.A. Narayanaswamy. Thereafter, the katha of the property was mutated in the name of the plaintiff in the office of the Corporation of the City of Mysore. The defendant was inducted into the suit schedule property as tenant under previous owner Tangachamma as per oral agreement. The plaintiff was not desirous of continuing the tenancy of the defendant as the plaintiff required entire premises including plaint schedule property for her personal use and occupation. But, the defendant continued to be in possession as a tenant. In the circumstances, she filed eviction petition under the provisi on of the Karnataka Rent Control Act, 1961, which case came to be dismissed. Thereafter, she filed a revision petition before the District Judge in view of the repealing of the Karnataka Rent Control Act and a new Act namely the Karnataka Rent Act, 1999 came into force. She constrained to issue a legal notice under Section 106 of the Transfer of Property Act and requested the defendant to hand over possession of the property. As the defendant disputed the title of the plaintiff, the suit was filed for the aforesaid reliefs. 4. The defendant contested the case. According to him, Smt Tangachamma was the owner of the property. She had inducted one N.R. Venkatesh, as her tenant and N.R. Venkatesh in turn inducted the defendant and that he was collecting the rent at the rate of Rs.20/- per month. 4. The defendant contested the case. According to him, Smt Tangachamma was the owner of the property. She had inducted one N.R. Venkatesh, as her tenant and N.R. Venkatesh in turn inducted the defendant and that he was collecting the rent at the rate of Rs.20/- per month. He has denied the execution of the sale deed in favour of Smt Shakunthala and others. According to him, he is not aware of the sale deed executed by Smt Shakunthala and others and that the plaintiff has no right, title and interest over the suit schedule property. N.R. Venkatesh enjoyed the property from the date of death of Smt Tangachamma and after the death of N.R. Venkatesh, the defendant is enjoying the property and that he is in possession of the property for more than 30 years continuously, uninterruptedly and without any kind of hindrance whatsoever from anybody. Therefore, he acquired the title to the said property. In the circumstances, he requested the Court to dismiss the suit. 5. Based on the above pleadings, the following issues were framed by the Court below: (1) Whether the plaintiff proves that, Smt Thangachamma, bequeathed the suit schedule property in favour of the legatees mentioned in the Will and later on plaintiff purchased the suit schedule property from Shakunthala one of the legates under the Sale Deed dated 17.4.1985? (2) Whether the plaintiff proves that, the defendant was inducted as a tenant into the suit schedule property under the said Thangachamma? (3) Whether the plaintiff is entitled for the relief of declaration that, she is the absolute owner of suit schedule property? (4) Whether the plaintiff proves that, the quit notice that she has issued against the defendant is as per law? (5) Whether the plaintiff is entitled for the arrears of rent? (6) Whether the plaintiff is entitled for the relief of damages? (7) Whether the defendant proves that, he has acquired the absolute right of ownership over the suit schedule property by way of adverse possession? (8) What order or decree? 6. In order to prove the respective contentions, on behalf of plaintiff two witnesses were examined P.W.1-Srinivasamurthy, husband of the plaintiff as P.W.1 and one Rizwan as P.W.2. The plaintiff relied upon Exs.P.1 to P.15 and defendant got himself examined as D.W.1. He relied upon Exs.D.1 to D.8. 7. (8) What order or decree? 6. In order to prove the respective contentions, on behalf of plaintiff two witnesses were examined P.W.1-Srinivasamurthy, husband of the plaintiff as P.W.1 and one Rizwan as P.W.2. The plaintiff relied upon Exs.P.1 to P.15 and defendant got himself examined as D.W.1. He relied upon Exs.D.1 to D.8. 7. The trial Court after considering the evidence let in by the parties held issues 1 to 6 in affirmative, issue No. 7 in negative and ultimately, the suit filed by the plaintiff came to be decreed directing the plaintiff as the absolute owner of the property and further directed the defendant herein to vacate and handover possession of the property within two months from the date of the decree and also directed the defendant to pay Rs.3,600/- towards arrears of rent and also directed to pay damages of Rs.100/- per month from the date of filing of the suit till handing over the vacant possession of the property. 8. Aggrieved by the judgment and decree of the trial Court, the appellant filed an appeal before the Fast Track Court, Mysore, in R.A. No. 923/2010. The lower Appellate Court after considering the arguments advanced by the parties, formulated the following points for its consideration: (I) Whether the appellant has made out sufficient grounds to allow to amend his Written Statement as well as memorandum of the appeal? (II) Whether the appellant has made out sufficient grounds to allow the application for additional evidence? (III) Whether the trial Court erred in holding that the respondent is absolute owner of the schedule premises? (IV) Whether the findings of the trial Court that the respondent is entitled for vacant possession of the schedule premises from the appellant? (V) Whether the judgment and decree of the trial Court calls for any interference? (VI) What order? 9. After re-appreciating the entire evidence, the lower Appellate Court held points 1 and 2 in negative, Points 3 and 4 in affirmative and Point 5 in partly in affirmative and also in negative. Ultimately, the appeal filed by the appellant came to be allowed in part confirming the judgment and decree of the trial Court in declaring the plaintiff as the absolute owner and in directing the appellant to pay the arrears of 3 years rent. Ultimately, the appeal filed by the appellant came to be allowed in part confirming the judgment and decree of the trial Court in declaring the plaintiff as the absolute owner and in directing the appellant to pay the arrears of 3 years rent. However, the lower Appellate Court set aside the findings of the trial Court in directing the appellant herein to hand over possession of the schedule property on the ground that the respondent has to file eviction petition afresh. The concurrent findings of the Courts below are called in question in this appeal. 10. Mr. V. Srinivas, learned counsel for the appellant contends that the trial Court has committed an error in not raising an issue with regard to the court-fee payable by the plaintiff on the relief of declaration of title and for possession and a similar mistake has been committed by the lower Appellate Court. He further contends that when the suit was filed for declaration of title, the burden was cast on the plaintiff to prove the title. Since there is a failure to prove the title, both the Courts below could not have granted the relief of declaration. In the circumstances, he requests the Court to allow the appeal and set aside the findings of the Courts below on the question of title. 11. Having heard the learned counsel for the appellant, this Court does not see any substantial question of law arising in this appeal for the following reasons. 12. Admittedly, the appellant is admitting the ownership of Smt Tangachamma in respect of the schedule property. The case of the plaintiff is that Smt Tangachamma had no issue. She had bequeathed the schedule property under the registered Will of the year 1966, which has been produced as Ex.P.11 and thereafter, the legatees have sold the property to the plaintiff under the registered sale deed dated 17.4.1995 as per Ex.P.2 and katha of the property has been standing in the name of the plaintiff and taxes are paid by the plaintiff. Even the appellant has not disputed the death of Smt Tangachamma. According to him, Smt Tangachamma died on 21.12.1974 and that N.R. Venkatesh, who inducted the appellant herein as the tenant of the premises was collecting rent on behalf of Smt Tangachamma. Even the appellant has not disputed the death of Smt Tangachamma. According to him, Smt Tangachamma died on 21.12.1974 and that N.R. Venkatesh, who inducted the appellant herein as the tenant of the premises was collecting rent on behalf of Smt Tangachamma. It is not the case of the appellant that after the death of Smt Tangachamma, he has been paying rents to any other persons, since no one is claiming as legal heirs in view of the sale deed executed in favour of the plaintiff by the legatees under the sale deed dated 17.4.1985. For the reasons best known to the appellant, he has set up the adverse possession subsequent to the death of N.R. Venkatesh, but nowhere he has stated as to when N.R. Venkatesh died. Even after N.R. Venkatesh, who was the rent collector of Smt Tangachamma died and if the defendant continues to be in possession, at best his possession can be considered as a tenant of the building and not as an owner. The appellant has contended that he has perfected his title by way of adverse possession, and the same has not been proved by him when there is a registered sale deed executed by the legatees of Smt Tangachamma under the Will dated 17.4.1985 and other properties of Smt Tangachamma are being enjoyed by Smt Shakunthala, Sulochana and others pursuant to the registered Will dated 28.5.1966. When the said Will has been acted upon by Smt Shakunthala, Sulochana and others, the appellant who is the tenant of the premises cannot question the registered documents including the registered Will of Smt Tangachamma executed on 28.5.1966. When the Courts below have concurrently held that the appellant has failed to prove his contention of adverse possession in view of the registered sale deed, a tenant cannot attack the sale deeds of the plaintiff, since he has no semblance of right, title and interest over the property. Therefore, the contention of the appellant that the Courts below have committed an error in declaring the appellant as the absolute owner cannot be interfered with and whether the plaintiff is the owner of the property, is the question of fact and not the question of law. 13. Though, the appellant contends that he has raised the question of payment of court-fee, the trial Court has not framed an issue. 13. Though, the appellant contends that he has raised the question of payment of court-fee, the trial Court has not framed an issue. Issue in regard to the payment of court-fee, it is for the appellant to raise it as a preliminary issue and if a preliminary issue has not been framed by the Courts below, it was for him to make an application before the Courts below to frame an additional issue and treat the same as preliminary issue for the reasons best known to him. The appellant did not raise any contention either at the time of arguments or before the commencement of the evidence. 14. Even after the disposal of the case by the Courts below when the appellant had filed an appeal before the lower Appellate Court in R.A. No. 923/2010, he has not raised the payment of court-fee as insufficient before the lower Appellate Court. Having failed to address the arguments with regard to raising of a question for payment of court-fee before the Courts below, he cannot be permitted to raise the same in the second appeal. Accordingly, this Court is of the opinion that no substantial question of law arises. 15. As a matter of fact, the lower Appellate Court has committed an error in setting aside the decree passed by the trial Court in directing the appellant to hand over possession, because the appellant who was the tenant has disputed the ownership of the plaintiff and has set up an adverse possession. The respondent/plaintiff at the first instance has filed the eviction case. There, the appellant had contended that there was no relationship of landlord and tenant. Considering the contention of the appellant that he has perfected his title by way of adverse possession, if the trial Court had granted a decree for possession and declaration, the lower Appellate Court should not have set aside the decree passed by the trial Court in directing the appellant to hand over possession. If the respondent had appeared and filed cross objection, this Court could have allowed the cross objection. Further this Court is of the opinion that the lower Appellate Court had committed an error in reversing the decree passed by the trial Court in directing the appellant to hand over possession of the property. Viewed from any angle, no substantial question of law arises for consideration in this appeal. 16. Further this Court is of the opinion that the lower Appellate Court had committed an error in reversing the decree passed by the trial Court in directing the appellant to hand over possession of the property. Viewed from any angle, no substantial question of law arises for consideration in this appeal. 16. Accordingly, the appeal is dismissed.