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2019 DIGILAW 1496 (KAR)

Prabhakara Pai v. Kusumavathy

2019-07-01

N.K.SUDHINDRARAO

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JUDGMENT : N K SUDHINDRARAO, J. 1. The appeal is directed against the judgment and decree dated 02.06.2009 passed by learned Additional Civil Judge (Sr.Dn) and JMFC, Puttur, D.K. in R.A.No.87/1996 wherein the appeal preferred by the defendants against the judgment and decree passed by learned Principal Munsiff, Puttur, D.K. in O.S.No.21/1971 dated 31.10.1995 came to be dismissed, and thereby confirmed the judgment and decree of the trial court. 2. In order to avoid confusion and overlapping, the parties are referred with reference to their ranks and status as stood before the trial court. 3. The substance of the pleadings of the plaintiff is that, they filed a suit in O.S.NO.21/1971 for the relief of possession of A schedule property consisting of buildings, trees. 4. The description of the schedule property as could be found from the 'A' schedule of the plaint is, property situated at Uppinangady, Kasaba Village, Puttur S.K. bearing survey No.21/6, Bhagaith measuring an extent of 0.05 cents, bounded By: East: Road, West: Formerly majal field and now by pass road, North: Wall of the shop formerly belonging to Narashima Naika and South: plot acquired by the government with all buildings and trees etc. 5. It is the case of the plaintiff that, earlier one Baburaya @ Anna Pai had taken the schedule property to the extent of 03 cents of land an annual rent of Rs.25/- from plaintiff's grand father Adiraja Indra by executing a registered term lease deed dated 26.7.1935 for a period of 35 years and bound to end by the year 1970 and the plaintiff also seeks for mesne profits. 6. The defendant entered appearance and filed written statement and claimed that the property 'consisted of 7 cents when it was leased contained' a thatched building as well as few trees. The thatched building was partly used as shop and partly for residential purpose. The super structure was sold to him by Adiraja Indra on the date of lease. The defendant also claimed that he had taken on chalgeni lease the adjacent majal fields comprised in Sy.No.21/1 of Uppinangadi village as well as Bagaith lands in Sy.No.21/6. Over the land he is a protected tenant and tenancy is not terminated in the manner known to law. 7. The trial Court has framed as many as 13 issues and one additional issue which are as under: ISSUES 1. Over the land he is a protected tenant and tenancy is not terminated in the manner known to law. 7. The trial Court has framed as many as 13 issues and one additional issue which are as under: ISSUES 1. Whether the suit lease is an agricultural lease? 2. Whether suit is hit by Section 22 of Mysore Land Reforms Act? 3. Whether plaintiff is owner of suit plot? 4. Whether the suit is bad for non-joinder of parties? 5. Whether suit plot has been correctly described? 6. Whether the improvements by defendant have been correctly valued by plaintiff, if not what is the correct value? 7. Whether defendant is not liable to be evicted unless he tenders compensation for improvements? 8. Whether defendant is not liable to be evicted under Sections 35 and 36 of Mysore Land Reforms Act? 9. Whether the court has no jurisdiction to try this suit? 10. Whether there has been no proper termination of tenancy? 11. Whether suit is barred by time? 12. Whether plaintiff is entitled for mesne profits? If so, what is the correct amount? 13. To what reliefs, if any, are the parties entitled? Addl.Issue No.1: Whether the suit is bad for non joinder of K.Poornima Baliga and Asha S. Shenoy as parties to the suit? 8. The trial Judge was accommodated with the oral evidence of PWs 1 to 3, DWs 1 to 5 and documentary evidence of Exs.P1 to P5 and Ex.D1 and D2 and C1 and 2. The trial Judge considering the materials available on file, has decreed the suit of the plaintiff with costs as under: "The suit of the plaintiff be and the same is hereby decreed with costs. The plaintiff is hereby directed to deposit a sum of Rs.4551-25 with in a month from the date of this order. Defendants are hereby directed to receive the sum of Rs.4551-25 paise and to handover the vacant possession of the same within three months from the date of this order. The defendants are hereby directed to pay mesne profits at Re.1-00 per day from 27.7.1970 till 25.8.1970 at Rs.31/-. Defendants are hereby directed to receive the sum of Rs.4551-25 paise and to handover the vacant possession of the same within three months from the date of this order. The defendants are hereby directed to pay mesne profits at Re.1-00 per day from 27.7.1970 till 25.8.1970 at Rs.31/-. Cost of the notice being Rs.10/- and also future mesne profits at Re.1-00 per day from 26.8.1970 till the date of delivery of the possession of the suit schedule property and interest thereon at 5 1/2 % p.a. from the date of suit till the date of handing over of the possession of the same." 9. Being aggrieved by the said judgment and decree, defendants preferred regular appeal before the learned Additional Civil Judge (Sr.Dn) and JMFC, Puttur D.K. in R.A.No.87/1996 which came to be dismissed and consequently, the judgment and decree passed by the trial court is confirmed. Aggrieved by the said judgment and decree, the defendants have presented this second appeal. 10. The appeal came to be admitted on 22.7.2009 for deciding the following substantial questions of law "1. Whether the courts below are justified in granting decree for possession in respect of 5 cents of land though admittedly, subsequent to the lease, 3 cents of land was acquired by the Government for formation of a road? 2. Whether the courts below are justified in granting decree for possession of the schedule property with buildings in favour of the respondent/plaintiff though the appellants/ defendants is the absolute owner of the buildings and other structures standing on the land by virtue of the ale effected in his favour by the respondent/plaintiff? 11. Learned counsel Sri.Keshava Bhat, for appellants/defendants submits that tenancy relates back to the year 1935 and was a registered deed of tenancy for a period of 35 years and appellants/defendants have made vast improvement of the land. The rent as agreed in the lease deed is stated as Rs.25/- per annum and that the appellants/defendants is in occupation of the surrounding lands in Sy.No.21/1 and thus, it would undoubtedly enrich the plaintiff. Further it was submitted that the trial court had directed the defendants to pay Re.1/- per day from 27.7.1970 till 25.8.1970 at Rs.31/, costs of the notice of Rs.10/- and as could be seen from the decree copy, the total cost ordered is Rs.134-25. 12. Further it was submitted that the trial court had directed the defendants to pay Re.1/- per day from 27.7.1970 till 25.8.1970 at Rs.31/, costs of the notice of Rs.10/- and as could be seen from the decree copy, the total cost ordered is Rs.134-25. 12. The learned counsel would further submit that both the plaintiff and the defendant are no more and they are represented by their children and grand children. He would submit that the nature of lease entered into is an agricultural one. In other words, within the domain of Section 106 of the Transfer of Property Act and it is terminable on a notice of not less than six months. The notice issued in this case is on 6.8.1970 as per Ex.P2. Legal notice issued terminating the lease is not disputed. It is stated in the termination notice marked as Ex.P4 that the term of lease as per the lease deed dated 26.7.1935 came to an end by 26.7.1970. Incidentally, the notice is issued on 6.8.1970. Thus, it was not issued during the existence of the lease period. 13. Learned counsel Sri. Ravishankar Shastry for plaintiff/respondent submits that defendants squat over the property to cause loss to the plaintiff. 14. It is a fact that, deceased defendant has taken the suit A schedule property on a term lease agreeing to surrender the possession on 26.7.1970 as per Ex.P1 and after the expiry of the said period, tenancy comes to an end and though the legal notice was issued, he has not at all handed over the possession of the property. The trial Judge, after appreciating the oral and documentary evidence and after assigning sound reasons answered the issues framed and decreed the suit of the plaintiff as stated above. The first Appellate Judge after re-appreciating the materials available on file, confirmed the judgment and decree passed by the trial Judge by dismissing the appeal of the defendants. 15. In the circumstances, it is to be seen that in the matter of eviction or damage or otherwise, the lease starts from 26.7.1935 and ends on 27.7.1970. The plaintiff is reported dead and defendant as well. In the over all circumstances of the case, it is a fact that lease period expired earlier to the issuance of the notice as per Ex.P4. It is not stated to be an agricultural land. The plaintiff is reported dead and defendant as well. In the over all circumstances of the case, it is a fact that lease period expired earlier to the issuance of the notice as per Ex.P4. It is not stated to be an agricultural land. Despite, it is to be noted that the notice was issued after the expiry of lease period. Learned counsel for appellants would submit that irreparable hardship would be caused to the defendants. I do not find any irregularity or illegality or infirmity committed either by the trail court or by the First Appellate court in adjudicating the matter. 15. Though the defendant has claimed independent rights over the schedule property has not placed reliable materials to establish the same. Interference in the judgment and decree of the courts below is unwarranted. Hence, the substantial questions of law framed in this appeal are answered in favour of the plaintiff. 16. In the result, appeal fails, and it is dismissed. Considering the circumstances of the case, it is just and proper to grant six months time to the appellants/defendants to vacate the schedule property and accordingly, it is granted.