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2015 DIGILAW 1049 (KAR)

K. Govinda Sherigara v. Sharada Kamath

2015-09-04

ARAVIND KUMAR

body2015
JUDGMENT : Aravind Kumar, J. 1. This is a defendant's second appeal calling in question Judgment and decree passed by Senior Civil Judge and ACJM, Karkala dated 20.09.2014 passed in R.A. 32/2012 whereunder the Judgment and decree passed by Principal Civil Judge & JMFC, Karkala dated 31.05.2012 in O.S. 188/2002 came to be decreed and directed the defendant to hand over vacant possession of suit schedule premises within three months and granted decree for mesne profits by directing defendant to pay plaintiffs Rs.2,000/- per month from the date of suit till date of handing over possession by way of damages. 2. I have heard the arguments of Sriyuths Dr. S. Arumugham, learned counsel appearing for appellant and Chandranath Ariga K., learned counsel appearing for respondents. 3. It is the contention of Sri. Arumugham, learned counsel for appellant that there is no relationship of landlord and tenant and issues framed in this regard by the trial court is erroneous and so also the finding recorded thereon. Learned counsel for appellant would fairly submit that though ground has not been urged in the appeal memorandum with regard to maintainability of the suit namely that plaintiff ought to have filed the suit as a Small causes suit before the jurisdictional court and as such the present suit filed before the Civil Judge (Jr. Dn), Karkala was not maintainable and as such the present appeal be admitted by framing substantial questions of law and same be answered in favour of appellant. 4. Per contra, learned counsel appearing for respondents/plaintiffs would support the Judgment and decrees passed by courts below and would contend that at no point of time defendant had raised a plea regarding ouster of jurisdiction by Civil Judge (Jr. Dn), Karkala and same cannot be permitted to be raised in a second appeal. Hence, he prays for rejection of the appeal at the threshold since findings recorded by courts below are concurrent findings of fact. 5. Having heard the learned advocates appearing for the parties and on perusal of the Judgment and decrees passed by courts below and also records secured from the courts below this court is of the considered view that there is no substantial question of law involved in this appeal for being admitted and answered for the reasons indicated herein below. 6. Having heard the learned advocates appearing for the parties and on perusal of the Judgment and decrees passed by courts below and also records secured from the courts below this court is of the considered view that there is no substantial question of law involved in this appeal for being admitted and answered for the reasons indicated herein below. 6. Plaintiffs filed suit for ejectment against defendant contending inter alia that plaint 'A' schedule premises is the ancestral property of plaintiffs and it was originally acquired by late Sri. Venkatesh Kamath and he had four sons and a daughter i.e., Sriyuths Laxmana Kamath, Madhava Kamath, Vittal Kamath, Rama Kamath and Smt. Leela. Said Sri. Laxmana Kamath had left behind a mentally challenged daughter by name Kum. Padmini and Sri. Madhava Kamath has left behind his widow the first plaintiff and both Sri. Vittal Kamath and Sri. Rama Kamath had expired issueless and second plaintiff is the son of late Smt. Leela. It was also contended that the above said Sri. Venkatesh Kamath had purchased the suit schedule properties on 15.06.1915 under a registered sale deed from late Sri. Vaikunta Bhat and others. They further contended plaintiffs being co-owners of suit property they are entitled for possession. Hence, they filed the suit against defendant in respect of plaint 'A' schedule property after terminating the tenancy by issuance of quit notices dated 13.12.2001 and 07.02.2002. 7. On service of suit summons defendant appeared and filed his written statement admitting he was a tenant under late Sri. Madhava Kamath but denied other averments made in the plaint. It was also contended though defendant had taken schedule premises on a monthly rent he had entered into agreement on 18.12.1991 with Sri. Madhava Kamath to purchase the suit buildings and 4 cents of land comprised in Sy. No. 147/3 of Karkala Kasaba Village and pursuant to said agreement he continued in occupation of the suit schedule premises. It was contended that even prior to the time of Sri. Madhava Kamath's father purchasing the suit schedule property he was a tenant under his vendor. No. 147/3 of Karkala Kasaba Village and pursuant to said agreement he continued in occupation of the suit schedule premises. It was contended that even prior to the time of Sri. Madhava Kamath's father purchasing the suit schedule property he was a tenant under his vendor. It was also contended that on account of financial difficulties defendant could not bear expenses of stamp paper, registration and hence he did not get the sale deed registered, though plaintiff No. 1 and 3 agreed to execute the deed of conveyance they did not execute it and as such there is no relationship of landlord and tenant. On the basis of pleadings of the parties trial court framed following issues: "1. Whether the plaintiffs prove that they are the co-owners of the suit property? 2. Whether the plaintiffs prove that the defendant was a tenant in the plaint "A" schedule property as a building tenant for a monthly rental of Rs. 500/- having obtained it from Lakshman Kamath? 3. Whether the plaintiffs prove that they had terminated the tenancy of the defendant by issuing a quit notice dated 13.12.2001 and 07.02.2002? 4. Whether the plaintiffs prove that the defendants are liable to pay the mesne profits at the rate of Rs. 2,000/- per month, from the date of suit till the date of the recovery of possession? 5. What Order or Decree?" 8. Initially trial court had dismissed the suit by Judgment and decree dated 29.01.2005. The unsuccessful plaintiffs filed an appeal in R.A. 144/2005 and Fast Track Court, Karkala vide Judgment and decree dated 19.09.2009 remitted the matter back to the trial court to frame the suggested issues and dispose of the case in accordance with law. Accordingly trial court after remand framed the following additional issues: "1. Whether there is cause of action for the suit? 2. Whether the plaintiffs prove that they are valued the suit property and paid the proper court fee? 3. Whether the defendant proves that the deceased Madhava Kamath had executed Agreement of Sale on 18.12.1991 for sale consideration amount of Rs. 20,000/- in his favour? 4. Whether the defendant proves that by virtue of Agreement of Sale he need not pay rent to the plaintiffs? 5. Whether the defendant proves that the 1st plaintiff and 3rd plaintiff have executed their consent and acknowledgement to execute deeds of conveyance? 6. 20,000/- in his favour? 4. Whether the defendant proves that by virtue of Agreement of Sale he need not pay rent to the plaintiffs? 5. Whether the defendant proves that the 1st plaintiff and 3rd plaintiff have executed their consent and acknowledgement to execute deeds of conveyance? 6. Whether the defendant proves that the suit is barred under the provisions of Transfer of Property Act?" 9. After remand parties tendered further evidence and on evaluation of evidence, trial court decreed the suit by Judgment and decree dated 31.05.2012. 10. Being aggrieved by the same the unsuccessful defendant filed an appeal in R.A. 32/2012 raising several grounds (the ground of jurisdiction was not raised). The first appellant court after considering the arguments advanced by respective learned advocates appearing for the parties formulated following points for its consideration: "1. Whether the plaintiffs/respondents have established that they are the co-owners of the suit schedule properties and that the defendant is a tenant under them and that they have terminated the tenancy of defendant by issuing a quit notice? 2. Whether the defendant/appellant has established that Late Madhava Kamath had executed a Sale Agreement dated 18.12.1991 in respect of suit properties in his favour for a valid consideration of Rs. 20,000/- and that he is entitled for protection of his possession in view of the provisions under the Transfer of Property Act? 3. Whether the applicant/appellant has made out convincing grounds to allow I.A. No. 4 filed Order 14 Rule 5 and section 151 of C.P.C. as prayed? 4. Whether the applicant/appellant has made out convincing grounds to allow I.A. No. 5 filed under Order 41 Rule 2 and section 151 of C.P.C. as prayed? 5. Whether the findings arrived at by the learned trial Judge need interference? 6. What Order?" 11. On re-appreciation of entire evidence first appellate court held that plaintiffs have established that they are the co-owners of suit schedule property and defendant is a tenant under them and there was proper termination of tenancy by issuance of quit notice. It was also found by first appellate court that finding recorded by trial court to the effect that defendant had failed to establish that there was an agreement of sale dated 18.12.1991 executed by late Sri. It was also found by first appellate court that finding recorded by trial court to the effect that defendant had failed to establish that there was an agreement of sale dated 18.12.1991 executed by late Sri. Madhava Kamath in his favour for consideration of Rs.20,000/- is just and proper and as such he was not entitled for protection under section 53A of Transfer of Property Act. On these grounds (amongst others) first appellate court affirmed the finding recorded by trial court and dismissed the appeal. 12. Perusal of the Judgment and decree passed by trial court as affirmed by first appellate court would clearly indicate that late Sri. Madhava Kamath, husband of first plaintiff was collecting rents in respect of suit schedule premises and defendant was in arrears of rent from the date of death of Sri. Madhava Kamath. Though defendant pleaded that he had entered into sale agreement with Sri. Madhava Kamath and paid Rs.20,000/- and in part performance of said agreement he has been in possession, same was not proved. At no point of time defendant had issued notice to late Sri. Madhava Kamath calling upon him to execute the sale deed. On the other hand it is admitted by defendant that he was facing financial difficulties as such he did not request Sri. Madhava Kamath during his life time to execute the sale deed. Even after the death of Sri. Madhava Kamath no notice was issued to the plaintiffs. Plaintiffs have contended that agreement of sale dated 18.12.91 propounded by defendant is concocted and created only after notice of termination of tenancy was issued. In view of this denial trial court sought expert opinion in order to ascertain the genuineness of the alleged agreement of sale. Handwriting Expert had entered the witness box and has opined that admitted signatures of late Sri. Madhava Kamath as found in his service register as per Exhibit C-4 and the disputed signatures found in the sale agreement and marked as Exhibit C4 and C4(a) are not that of a single person. In view of this expert evidence available on record and same having been scrutinized at micro level by the courts below, a finding of fact came to be recorded that the alleged agreement of sale dated 18.12.91 propounded by defendant is not duly proved. In view of this expert evidence available on record and same having been scrutinized at micro level by the courts below, a finding of fact came to be recorded that the alleged agreement of sale dated 18.12.91 propounded by defendant is not duly proved. Said finding recorded is just and proper and same is based on proper appreciation of evidence, not calling for interference. Since defendant has admitted in his evidence that he was a tenant under late Sri. Madhava Kamath and was paying rents and plaintiff No. 1 being the wife of late Sri. Madhava Kamath and plaintiff No. 2 being the son of late Smt. Leela (i.e., daughter of late Sri. Venkatesh Kamath) and third plaintiff being daughter of Sri. Laxmana K. (was the son of late Sri. Venkatesh Kamath) had succeeded to the estate of late Sri. Venkatesh Kamath and as co-owners of the suit schedule building they had filed the suit in question for ejectment by terminating the tenancy of defendant and as such courts below were fully justified in holding that there was jural relationship of landlord and tenant between plaintiffs and defendant. Infact defendant has in his evidence admitted that he is the tenant of suit schedule building under late Sri. Madhava Kamath. 13. Insofar as issue regarding maintainability of the suit is concerned it would not detain this court for too long to brush aside said contention for reasons more than one. Firstly the suit in question for ejectment and recovery of possession has been initiated by plaintiffs in the court of Civil Judge (Jr. Dn), Karkala which is having pecuniary jurisdiction to try the suit and it had jurisdiction to try the suits valued upto Rs.25,000/-. Rate of rent of the suit schedule building as per the averments made in the plaint is Rs. 500/- per month or in other words the annual rent being Rs.6,000/- the court fee has been paid under section 41 of Karnataka Court Fees and Suit Valuation Act. The value of the suit as could be seen from the plaint averments, was valued at Rs.6,000/-, which was well within the pecuniary jurisdiction of Civil Judge (Jr. Dn), Karkala. 14. An argument was sought to be raised by Sri. The value of the suit as could be seen from the plaint averments, was valued at Rs.6,000/-, which was well within the pecuniary jurisdiction of Civil Judge (Jr. Dn), Karkala. 14. An argument was sought to be raised by Sri. Armugham, learned counsel for appellant that suit in question for ejectment ought to have been described as Small Causes and not as original suit and only small causes court had jurisdiction to try the suit and not Civil Judge (Jr. Dn), Karkala. There is no dispute to the fact that where small causes court have been established by the State Government in consultation with the High Court by issuance of a notification as contemplated under section 8 then only such small causes court would get jurisdiction to try the suit which is triable by a Civil Judge (Jr. Dn). Undisputedly in the instant case, the pecuniary jurisdiction of Civil Judge (Jr. Dn), Karkala was less than Rs.25,000/- at the undisputed point of time and value of the suit being Rs.6,000/- as indicated in valuation memo filed in the suit, present suit in question for ejectment was very much maintainable before the court of Junior Division, Karkala. As such contention of Sri. Armugham does not hold water and it is meritless and stands rejected. 15. For these myriad reasons this court is of the considered view that there is no substantial question of law involved in this appeal requiring formulation of the same or its adjudication thereof. Hence the following: ORDER 1. Appeal is hereby dismissed with costs. 2. Judgment and decree passed by Senior Civil Judge and ACJM, Karkala, Udupi District dated 20.09.2014 in R.A. 32/2012 confirming the Judgment and decree dated 31.05.2012 passed in O.S. 188/2002 by Principal Civil Judge & JMFC, Karkala, Udupi District stands affirmed. 3. Appellant to pay cost of Rs. 5,000/- to respondents.