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2014 DIGILAW 941 (KAR)

K. Ganesh Naik v. Abdul Kareem

2014-10-29

A.V.CHANDRASHEKARA

body2014
Judgment : 1. Concurrent findings are called in question before this Court by filing an appeal under Section 100 of the Code of Civil Procedure. The appellants are the defendants 1 and 2 of an original suit bearing O.S.No.687/1989 which was pending on the file of the Court of II Addl. Civil Judge (Jr.Dn.), Kundapura. Respondent No.1 herein was the lone plaintiff in the said suit. Respondent No.2 was defendant No.3 in the said suit and he had not filed any written statement. Suit filed for the relief of possession of the tenanted property from defendant Nos.1 and 2 has been decreed as prayed for vide judgment dated 03.09.1999. As against the said judgment and decree, a Regular Appeal was filed under Section 96 of CPC before the First Appellate Court i.e., the Court of Civil Judge (Sr.Dn.) at Kundapura, in R.A.No.45/1999. The said appeal has been dismissed after contest and thus the judgment of the Trial Court has been upheld. It is these judgments which are called in question on various grounds as set out in the appeal memo. Parties will be referred to as plaintiff and defendant Nos.1 to 3 as per their ranking given in the Trial Court. 2. Facts leading to the filing of the said suit and the present appeal are as follows: Defendant No1. is the son of one Gopala Naik and defendant No.2 is the wife of the said Gopala Naik. Plaintiff was a tenant under defendant Nos.1 and 2 and he was in possession of the schedule non-residential premises consisting of the ground floor with upstairs bearing Door No.535 in II Ward of Kundapura Town and the same is in the vicinity of Kundapura Bus Stand. Earlier one person by name Haji B.H.Sulaiman, was a tenant of the schedule property from 1948 till 1965 under Gopala Naik and thereafter, his younger brother B.H.Ahamed was a tenant till his death in the year 1978. After the death of B.H.Ahamed, his elder brother B.H.Sulaiman, obtained the schedule property on a monthly rent of Rs.20/-and continued as a tenant till the year 1986. B.H.Sulaiman continued the business of B.H.Ahamed in the suit premises for and on behalf of the plaintiff since the plaintiff was a minor. 3. After the death of B.H.Ahamed, his elder brother B.H.Sulaiman, obtained the schedule property on a monthly rent of Rs.20/-and continued as a tenant till the year 1986. B.H.Sulaiman continued the business of B.H.Ahamed in the suit premises for and on behalf of the plaintiff since the plaintiff was a minor. 3. In the year 1986, the plaintiff obtained on lease the suit premises from the second defendant and continued the tobacco business and timber business of his father late Ahamed on monthly rent of Rs.100/-. A lease deed is stated to have been executed by the plaintiff in favour of the second defendant and the lease was initially for a period of eleven months. B.H.Sulaiman, the third defendant herein, who is the Uncle of the plaintiff was assisting the plaintiff in his trade. Plaintiff was conducting business till February 1987 and left Kundapura to Bombay in order to seek employment at Dubai. When he left Kundapura, plaintiff is stated to have handed over possession of the suit premises to his younger brother Basheer and delivered the key of the suit premises to Basheer requesting Haji Sulaiman-the third defendant to manage the business till he returned. B.H.Sulaiman was stated to be managing the schedule premises for and on behalf of the plaintiff till he returned. Later on, he went to Kudlu of Kasargod Taluk, which is his native place. 4. Then the third defendant is stated to have informed the plaintiff that defendant Nos.1 and 2 had filed a suit against him on the ground that possession had already been surrendered to defendants 1 and 2 vide letter dated 01.03.1988. The said letter dated 01.03.1988 is stated to be a concocted document and has never been acted upon and that third defendant who was managing the property on behalf of the plaintiff was illegally dispossessed and therefore, cause of action for the suit arose when O.S.No.171/1988 was filed by defendant Nos.1 and 2 against the third defendant for the relief of permanent injunction. With these pleadings, plaintiff chose to file a suit for the relief of possession of the schedule premises. 5. Defendant No.1 alone filed detailed written statement denying all the material averments in regard to the alleged dispossession. With these pleadings, plaintiff chose to file a suit for the relief of possession of the schedule premises. 5. Defendant No.1 alone filed detailed written statement denying all the material averments in regard to the alleged dispossession. According to him, the possession of the schedule premises was surrendered to them and the same is evidenced through a surrender deed dated 01.03.1988 and that third defendant has colluded with the plaintiff. According to them, plaintiff himself had sent that letter through third defendant and the same was acted upon and on the basis of the same, Municipality has given license to them to do business in the schedule premises. With these pleadings, they had requested for dismissal of the suit. On the basis of the above pleadings, following issues came to be framed: 1. Whether the defendants prove that the plaintiff surrendered possession of the suit premises to the 2nd defendant in the first week of March 1988 and that the plaintiff executed the surrender deed dt. 1.3.1988? 2. Whether the defendants prove that they are in lawful possession of the suit premises? 3. Whether the plaintiff proves that the defendant came into lawful possession of the movables detailed in para 3 of the plaint and if so, what is the market value thereof? 4. Whether the plaintiff is entitled for possession of the suit premises? 5. What relief? 6. Plaintiff is examined as PW1 and Gopala Naik is examined as DW1. Plaintiff has got marked one exhibit and defendants 1 and 2 have got marked two exhibits, inclusive of Ex.D1, the original surrender deed dated 01.03.1988. 7. After hearing the arguments and perusing the records, the learned II Addl. Civil Judge (Jr.Dn.), Kundapura, has answered issues 1 and 2 in the negative and issues 3 and 4 in the affirmative. Ultimately, suit came to be decreed directing defendant Nos.1 and 2 to handover the vacant possession of the suit schedule property. Appeal filed under Section 96 of CPC in R.A.No.45/1999 has been dismissed vide considered judgment dated 30.05.2006. Following points have been framed by the First Appellate Court as found in paragraph 10 of the judgment: 1. Whether appellants-defendants prove that plaintiff surrendered possession of the suit premises to defendant No.2 by executing Surrender Deed, dated 1.3.1988 and they are in lawful possession of the suit premises since then? 2. Following points have been framed by the First Appellate Court as found in paragraph 10 of the judgment: 1. Whether appellants-defendants prove that plaintiff surrendered possession of the suit premises to defendant No.2 by executing Surrender Deed, dated 1.3.1988 and they are in lawful possession of the suit premises since then? 2. Whether plaintiff-respondent proves that defendants are in unlawful possession of the moveables shown in para No.3 of the plaint ? 3. Whether appellants-defendants prove that the judgment and decree of the Trial Court are perverse and unsustainable and interference of this Court is required? 4. What order or decree? 8. Points 1 and 3 have been answered in the negative and point No.2 has been answered in the affirmative. It is this judgment which is called in question on various grounds as set out in the appeal memo. 9. After hearing the learned counsel for the appellants in regard to admission, this Court has framed the following substantial questions of law on 18.09.2006: "Whether the suit filed by the plaintiff-respondent is within time as contemplated u/s 6 of the Specific Relief Act?" 10. The learned counsel have submitted their arguments on merits at length. Reasons: 11. There is no dispute about the relationship of landlord and tenant between the plaintiff and defendant Nos.1 and 2. Serious dispute is in regard to the alleged surrender of the schedule property by the plaintiff through defendant No.3 to defendant Nos.1 and 2, who are the appellants herein, on 01.03.1988. 12. Gopala Naik, father of the first appellant and husband of the second appellant who was the earlier original owner has relied upon Ex.D1 the surrender lease deed dated 01.03.1988. The authenticity of the said document has been specifically denied by the plaintiff not only in his plaint but during the course of cross-examination. The Trial Court has held that defendant Nos.1 and 2 have not taken any steps to prove Ex.D1 with authenticity. In the light of plaintiff himself seeking possession of the suit schedule property from defendant Nos.1 and 2 on the ground of being dispossessed unlawfully, question of the proof of Ex.D1 does not arise. The cause of action pleaded in paragraph-6 of the plaint discloses that the cause of action arose on 01.04.1988 when the defendants trespassed into suit premises and on 04.08.1989 when the plaintiff requested the defendants to deliver possession of the suit schedule premises. The cause of action pleaded in paragraph-6 of the plaint discloses that the cause of action arose on 01.04.1988 when the defendants trespassed into suit premises and on 04.08.1989 when the plaintiff requested the defendants to deliver possession of the suit schedule premises. Suit came to be filed on 09.08.1989 before the then Court of Munsiff at Kundapura and was numbered as O.S.No.687/1989. Admittedly, suit came to be filed after the lapse of six months from 01.04.1988, the date on which plaintiff was allegedly dispossessed from the suit schedule property unlawfully. 13. Section 6 of the Specific Relief Act, speaks about the right of a person who is dispossessed of immovable property. Section 6 is as follows: 6. Suit by person dispossessed of immovable property- (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. (2) No suit under the section shall be brought- (a) after the expiry of six months from the date of dispossession; or (b) against the Government. (3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed. (4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof. 14. A suit under Section 6 of Specific Relief Act, is maintainable between landlord and tenant where the question of title is not raised because the question of title is irrelevant and the defendant cannot raise it. In the case of Lally Yeshwant Singh Vs. Rao Jagdish Singh reported in AIR 1968 SC 620 , Hon'ble Supreme Court has specifically held that in a suit filed by a tenant against landlord for possession of the lease premises on the ground of tenant being dispossessed unlawfully, question of title will be irrelevant. Though a tenant may holdover the lease premises after the expiry of period of tenancy, his possession will be still juridical and therefore, he would be entitled to sue his landlord for possession under Section 6, if he is forcibly dispossessed by the landlord. 15. Though a tenant may holdover the lease premises after the expiry of period of tenancy, his possession will be still juridical and therefore, he would be entitled to sue his landlord for possession under Section 6, if he is forcibly dispossessed by the landlord. 15. From the very facts pleaded in the plaint, in regard to the date of the dispossession of the plaintiff from the suit schedule property by defendant Nos.1 and 2 and suit being filed long after the lapse of six months from the date of dispossession, suit for possession under Section 6 of Specific Relief Act, is not at all maintainable. Both the Courts have lost sight of this important legal position. 16. In the light of admitted facts of the case, this Court has framed relevant substantial question of law and the same has to be answered in the negative holding that the suit so filed for possession is not within time as per Section 6 of Specific Relief Act. Therefore, appeal will have to be allowed and the judgment of the Trial Court will have to be set aside. ORDER Appeal filed under Section 100 of CPC is allowed. Consequently, the suit bearing O.S.No.687/1989 on the file of the II Addl. Civil Judge (Jr.Dn.), Kundapura, is dismissed. In view of the facts and circumstances of the case, parties to bear their own costs.