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2012 DIGILAW 929 (KAR)

Tajuddin v. Suresh

2012-11-09

K.BHAKTHAVATSALA

body2012
ORDER K. BHAKTHAVATSALA, J.—This is a revision petition filed under Section 115 of CPC by the defendant in O.S. No. 169/2006, on the file of II Additional Civil Judge (Jr. Dn.) Bijapur, challenging the impugned judgment and decree dated 29.08.2011, passed in the above said suit. Revision petitioner Nos. 2 to 4 have been impleaded on the ground that they have purchased the suit schedule property and they are in possession of the same. 2. For the purpose of convenience and better understanding the revision petitioner No. 1 and the respondent are hereinafter referred to as ‘the defendant’ and ‘the plaintiff’ as arraigned in the suit. 3. Brief facts of the case leading to the filing of the petition may be stated as under: The plaintiff filed a suit in O.S. No. 169/2006 on the file of II Additional Civil Judge (Jr.Dn.) at Bijapur against the defendant seeking direction to deliver the possession of the suit property bearing CTS No. 171 situated in CMC ward No. 4 at Bijapur. It is pleaded that the defendant’s father who died 21 years back had let out the suit property in the year 1957 in favour of the plaintiff’s father Virupaxappa and his father was carrying on business in lodging and boarding and also for residential purpose, on a monthly rent of Rs. 40/- and later on rent was enhanced to Rs. 150/-; in the year 2004, the defendant was insisting the plaintiff to increase the rent, failing which he will be dispossessed and on 26.06.2004 the defendant suddenly removed the board of the lodging and threatened him to evict him from the suit property. The plaintiff filed a suit in O.S. No. 204/2004 on the file of II Additional Civil Judge (Jr. Dn.) Bijapur for injunction. The landlord filed written statement stating that the plaintiff’s father Virupaxappa himself vacated the suit premises and sought for dismissal of the suit. Plaintiff denied the same and pleaded that on 25.02.2006, the landlord and six others dispossessed the plaintiff from the suit premises on 25.02.2006. Therefore, the plaintiff filed a private complaint against the defendant under Sections 143, 147, 395, 449, 504 and 506 read with Section 149 of IPC before the CJM at Bijapur and the same was referred to the police for investigation. The plaintiff filed the suit in O.S. No. 169/2006 for the relief as mentioned above. 4. Therefore, the plaintiff filed a private complaint against the defendant under Sections 143, 147, 395, 449, 504 and 506 read with Section 149 of IPC before the CJM at Bijapur and the same was referred to the police for investigation. The plaintiff filed the suit in O.S. No. 169/2006 for the relief as mentioned above. 4. The defendant entered appearance in O.S. No. 169/2006 and filed written statement denying the averments of the plaint and sought for dismissal of the same with exemplary costs. The bone contention of the defendant is that the plaintiff had no right to file the suit. 5. Trial Court framed as many as five issues. In support of the case of the plaintiff, he got examined as PW.1 besides examining Bhimanagouda Patil and Suresh Bande as PWs.2 and 3 and got marked Exs.P1 to P8. In rebuttal, the defendant got himself examined as DW.1 besides examining Ratilal Nahar and Muragesh Koppad (brother of the plaintiff) as DWs.2 and 3 and got marked Exs.D1 to D8. The Trial Court after hearing arguments decreed the suit, directing the defendant/landlord to hand over the possession of the suit property in favour of the plaintiff within three months from the date of the order. This is impugned in the revision petition. Since, the decree is made in view of sub Section 3 of Section 6of the Specific Relief Act, no appeal shall lie from any order or decree passed in any suit instituted under the said provision, the defendant/landlord has filed the present revision petition under Section 115 of CPC. 6. Learned counsel for revision petitioners contends that the Trial Court erred in not properly appreciating the evidence on record and the evidence of DW.3 to the effect that the plaintiff’s father himself vacated the suit property and, therefore, there was no subsisting contract of tenancy between them. He also submits that the plaintiff failed to prove the jural relationship of land and tenant between them and that the plaintiff was dispossessed from the suit property on 25.02.2006 as pleaded in the suit. It is also submitted that the plaintiff’s father himself filed an affidavit in the suit in O.S. No. 204/2004 stating that he had already vacated the premises and handed over the suit property to the landlord and, therefore, the plaintiff withdrew the suit. It is also submitted that the plaintiff’s father himself filed an affidavit in the suit in O.S. No. 204/2004 stating that he had already vacated the premises and handed over the suit property to the landlord and, therefore, the plaintiff withdrew the suit. It is further stated that police investigated the case and filed ‘B’ report in the false private complaint lodged against the defendant and the same was challenged up to Sessions Court, unsuccessfully. 7. Learned counsel for the respondent/plaintiff submits that the Trial Court on proper appreciation of the evidence placed on record rightly decreed the suit and there is no illegality or infirmity in the impugned judgment and decree. 8. In view of the arguments addressed by the learned counsel for the parties, the only point that arise for my consideration is: “Whether the Trial Court is justified in decreeing the suit?” My answer to the above point is in the negative for the following reasons. 9. The plaintiff has failed to prove that there was jural relationship of landlord and tenant between them. The affidavit filed by the plaintiff’s father and the evidence of plaintiff’s brother on record shows that plaintiff’s father who was tenant of the suit property vacated the same and there was no jural relationship between the plaintiff and the defendant. Merely because in the property extract issued by the Municipal Authority, the name of the tenant is mentioned, it cannot be said there is a jural relationship of landlord and tenant between the defendant and the plaintiff. The plaintiff has not produced any document to show that he has been paying any rent regularly as averred in the plaint. The Trial Court has not properly appreciated the evidence. Ex.P.3 is the Special Power of Attorney given by the plaintiff’s father in favour of the plaintiff for managing the lodge when there was jural relationship of landlord and tenant and the plaintiff’s father and the defendant. The said document viz., Ex.P.3 cannot create any legal right in favour of the plaintiff and the defendant. In my view, the Trial Court has committed an error in decreeing the suit instead of dismissing the same with exemplary costs. In the result, I pass the following order: Revision petition is allowed with exemplary cost of Rs. The said document viz., Ex.P.3 cannot create any legal right in favour of the plaintiff and the defendant. In my view, the Trial Court has committed an error in decreeing the suit instead of dismissing the same with exemplary costs. In the result, I pass the following order: Revision petition is allowed with exemplary cost of Rs. 10,000/- and the impugned judgment and decree made in O.S. No. 169/2006 on the file of II Additional Civil Judge (Jr. Dn.) at Bijapur, are set aside. Consequently the suit in O.S. No. 169/2006 is dismissed. The respondent is directed to deposit the same in O.S. No. 169/2006 and intimate the same to the respondent/plaintiff No. 1.