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2023 DIGILAW 1226 (KAR)

Gajanana Narayansa Habib v. Vimala

2023-10-13

C.M.POONACHA

body2023
ORDER : C. M. Poonacha, J. CRP No.100086/2023 is filed challenging the order dated 27.03.2023 passed in S.C.No.45/2020 by the Court of I Addl. Senior Civil Judge and JMFC, Hubballi (hereinafter referred to as 'Trial Court'). CRP No.100087/2023 is filed challenging the order dated 27.03.2023 passed in S.C.No.46/2020 by the Trial Court. 2. Both the petitions are filed under section 115 of Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC'). The petitioner in both the petitions are one and the same and he was arrayed as Defendant No.4 in SC No.45/2020 and as the Defendant in SC No.46/2020. Respondent Nos.1 to 5 in CRP No.100086/2023 and the respondent in CRP No.100087/2023 are the plaintiffs in both the suits who sought for eviction of the tenant from the suit premises. Respondent Nos.6 to 8 in CRP No.100086/2023 were arrayed as Defendant Nos.1 to 3 in SC No.45/2020 since they were the legal heirs of the original tenant. 3. The parties will be referred to as per their ranking before the Trial Court as also of their status. 4. SC No.45/2020 was filed by the Plaintiffs arraying the legal heirs of the original tenant Sri Sambhajirao Chavan as Defendant Nos.1 to 3. In the said suit, the petitioner filed I.A.No.2 to implead himself and the Trial Court by order dated 19.11.2021 allowed the said application and permitted him to come on record as Defendant No.4 in the said suit. The suit property in the said suit is the residential premises on the western side situated in CTS No.3181 measuring 109 sq. yards situated at Dajiban Peth, Hubballi. SC No.46/2020 is filed by the plaintiffs for eviction of the Defendant (who is the petitioner in the present petition) from the suit premises which is a commercial shop on the western side of CTS No.3181 measuring 109 sq. yards of Dajibanpeth, Hubballi. 5. It is forthcoming that plaintiffs before the Trial Court are the same and the petition schedule premises is the same but in SC No.45/2020 it is in respect of residential premises and in SC No.46/2020 it is in respect of commercial shop. 6. It is the case of the plaintiffs in both the suits that one Iravva was the owner of the suit property and she died in the year 1993 leaving behind her adopted son Gangadhar and his name was mutated in respect of the suit property. 6. It is the case of the plaintiffs in both the suits that one Iravva was the owner of the suit property and she died in the year 1993 leaving behind her adopted son Gangadhar and his name was mutated in respect of the suit property. The said Gangadhar sold the suit property to one Ganapathsa vide registered Sale Deed dated 09.05.1995 and it was specifically mentioned in the registered sale deed that the purchaser was authorized to collect rent from tenants and also initiate such other proceedings against the tenants as may be permissible under law. 7. It is further averred that the 4th defendant in the suit who is the petitioner in the present petition and others had filed OS Nos.30/1994 which was dismissed on 10.10.2000 and the appeal in RFA Nos.19/2001 was dismissed by this Court on 17.09.2003 which was affirmed by the Hon'ble Supreme Court vide order dated 22.09.2020 passed in Civil Appeal No.3965/2004 and 3966/2004 wherein it was held that Ganapathsa was the absolute owner of the suit property. 8. The plaintiffs before the Trial Court are the wife and children of the said Ganapathsa. Consequent to death of Ganapathsa, plaintiffs requested the tenant to pay the arrears of rent and as also to terminate the tenancy vide legal notice dated 16.01.2020. Since the demands made in the said notice were not complied with, the suits were filed. 9. The Defendant Nos.1 to 3 in SC No.45/2020 entered appearance through their counsel. However, no written statement was filed. Defendant No.4 who is the petitioner in the present petitions who impleaded himself in the said suit has filed written statement and admitted that Iravva was the absolute owner of the suit property. That after the death of her husband, Iravva adopted Gangadhar and the said Gangadhar did not assist his mother. Hence, she instituted O.S.No.433/1984 for cancellation of the adoption deed. However, the said suit is dismissed on 15.09.1989 and the relationship was strained. The said defendant who was the tenant of Iravva was taking care of her and hence Iravva executed a Will dated 10.08.1992 in favour of the defendant and that defendant got probate of the Will and instituted suit in O.S.No.30/1994. That there was no agreement of tenancy between Sambhajirao and Iravva or Gangadhar and in HRC No.22/1996, Sambhajirao has not recognized Ganapathsa as his landlord. That there was no agreement of tenancy between Sambhajirao and Iravva or Gangadhar and in HRC No.22/1996, Sambhajirao has not recognized Ganapathsa as his landlord. Since Gangadhar did not claim possession of the suit property as the legal representative of Iravva based on title, Gangadhar ought to have claimed possession of the suit property as legal heir of Iravva. That in O.S.No.30/1994, the contents of Will were not held to be false and the suit is dismissed on the ground that there were suspicious circumstances. That the dismissal is not based on evidence on record and there is no issue in that regard. That defendant filed O.S.No.154/2021 claiming that he has perfected his title by adverse possession and there was no relationship of landlord and tenant. 10. It is forthcoming from the records that defendant No.4 has also filed an application on 05.01.2023 under Section 43 of the Karnataka Rent Act, 1999 (hereinafter referred to as 'Rent Act'). However, the said application was considered along with the merits of the matter by the Trial Court. In SC No.46/2020, the defence of the defendant who is the petitioner in the present petitions was similar to the defence raised in SC No.45/2020. 11. Based on the pleadings of the parties, the Trial Court framed issues in both the suits. In SC No.45/2020, plaintiff No.4 was examined as PW-1 and Exs.P-1 to P-16 were marked in evidence. The GPA holder of defendant No.4 was examined as DW-1 and no document was marked. In SC No.46/2020, plaintiff No.4 was examined as PW-1 and Exs.P-1 to P-6 were marked. The GPA holder of the defendant was examined as DW-1. However, no documents was marked. The Trial Court by its judgment dated 27.03.2023, partly decreed the suits and the following orders are passed: i) In SC No.45/2020, it is ordered as follows: "The suit of the plaintiffs is hereby decreed in part, with cost. The defendant No. 1 to 3 are directed to vacate and hand over peaceful and vacant possession of the suit premises to the plaintiffs, within 3 months from this date, failing which the plaintiffs will be entitled to get evict the defendant, through the process of the Court, at the cost of the defendant. The defendant No. 1 to 3 are jointly and severally, directed to pay forthwith arrears of rent Rs. The defendant No. 1 to 3 are jointly and severally, directed to pay forthwith arrears of rent Rs. 10,800/- to the plaintiffs along with damages at the rate of Rs. 300/- p.m. from the date of suit till actual delivery of vacant and peaceful possession to the plaintiffs, in accordance with law. The application filed by the defendant No. 4 under Section 43 of Karnataka Rent Act is dismissed. Draw decree accordingly." ii) In SC No.46/2020 it is ordered as follows: "The suit of the plaintiffs is hereby decreed in part, with costs. The defendant is directed to vacate and hand over peaceful and vacant possession of the suit premises to the plaintiffs, within 3 months from this date, failing which the plaintiffs will be entitled to get evict the defendant, through the process of the Court, at the cost of the defendant. The defendant is directed to pay forthwith arrears of rent Rs. 21,600/- to the plaintiffs along with damages at the rate of Rs. 600/- p.m. from the date of suit till actual delivery of vacant and peaceful possession to the plaintiffs, in accordance with law. The application filed by the defendant under Section 43 of the Karnataka Rent Act if dismissed. Draw decree accordingly." 12. Being aggrieved, the present petitions are filed. 13. Learned counsel for the petitioner in both the petitions assailing the judgment passed in both the suits has vehemently contended that the petitioner had specifically disputed the relationship of landlord and tenant in respect of the suit premises. The right of the petitioner was based on the Will executed by Iravva. That in the Will which has been proved, it is specifically contended that the petitioner was in actual possession of the suit property without any obstruction for a continuous for a period of more than 12 years and hence he was perfected his title by adverse possession. That upon completion of 12 years, the right of the plaintiffs in the title to the suit property has been extinguished as on 09.05.1997. That the Trial Court has not appreciated the said aspects while considering the case put forth by the defendants. 14. Learned counsel for the petitioner further contended that the petitioner is claiming under a Will and that he has been in actual possession of the property for more than 25 years. That the Trial Court has not appreciated the said aspects while considering the case put forth by the defendants. 14. Learned counsel for the petitioner further contended that the petitioner is claiming under a Will and that he has been in actual possession of the property for more than 25 years. That the conduct of the adopted son is contrary to the interest of the landlady who executed the Will. That there is no relationship of landlord and tenant and the Trial Court failed to consider Section 43 of the Rent Act to stop further proceedings. Further, it is contended that the petitioner is having right by virtue of the Will dated 10.08.1992 executed by the landlady. 15. In support of his contentions, he relied on the following judgments: i) Tribhuvanshankar v. Amrutlal, (2014) 2 SCC 788 ii) Delhi Motor Co. and other v. U.A.Basrurkar (dead) by his legal representatives and others, AIR 1968 SC 794 16. The Trial Court in SC No.45/2020, framed the following points for considerations: 1. Whether the plaintiffs prove the jural relationship of landlord and tenant between the parties as alleged? 2. Whether the plaintiffs prove the valid termination of tenancy as per law? 3. Whether the application under Section 43 of Rent Act filed by the defendant No. 4 is maintainable? 4. Whether the plaintiff prove the arrears of rent as claimed? 5. What order or decree?" 17. While considering the point No.1, the Trial Court has noticed that Sambajirao was inducted as tenant by the original owner which is an undisputed fact. That the demand by the defendant No.4 that he is the lawful owner of the suit property has been unsuccessful as is forthcoming from the judgment and decree dated 10.10.2000 passed in O.S.No.30/1994 (certified copy of which was marked as Ex.P4) which has attained finality and hence, the nature and character of possession by the Defendant No.4 continued on the basis of tenancy, though during the contested period covered by Ex.P4 proceedings and appeal therefrom, some cloud had cast on the right of the plaintiffs and their predecessors to claim as landlord/s to the suit property, which cloud has been removed by the finality of judgment - Ex.P4. 18. 18. By virtue of section 104 of the Transfer of Property Act, 1882 (hereinafter referred to as 'the T.P.Act'), by operation of law there is a statutory attornment of tenancy in favour of the transferee and hence, the Plaintiffs are the landlords of Defendant Nos.1 to 3 in respect to the suit property by statutory attornment and the consent of the tenant for the validity of succession is not necessary as per section 109 of the T.P. Act. That the assertion of defendant No.4 as a legatee of landlord has attained finality consequent to the decree passed in O.S.No.30/1994. The contention of defendant to claim adverse possession is also untenable since the same is not on the basis of any hostile animus but it was by a lawful title. 19. While considering point No.2, the Trial Court has noticed that legal notice was issued, copy of which is marked as Ex.P-13 and postal acknowledgments were marked as Exs.P-14 and P-15. Hence, the suit is filed after 15 days from the period of notice. 20. While considering the point No.4, the arrears of rent for 3 years was calculated at Rs. 66,000/-. 21. The Trial Court in SC No.46/2020 framed following points for consideration: 1. Whether the plaintiffs prove the jural relationship of landlord and tenant between the parties as alleged? 2. Whether the plaintiffs prove the valid termination of tenancy as per law? 3. Whether the application under Section 43 of Rent Act filed by the defendant is maintainable? 4. Whether the plaintiff prove the arrears of rent as claimed? 5. What order or decree?" 22. While considering the said points, the findings as recorded in S.C.No.45/2020 were also recorded in SC No.46/2020 also. The arrears of rent was calculated in a sum of Rs. 21,600/-. 23. Before adverting to the contentions put forth by the petitioner, the admitted fact situation and the previous litigation between the parties is required to be noticed. 24. Admittedly, the suit property in both the suits belonged to Iravva who expired on 04.04.1993 leaving behind her adopted son Gangadhar who succeeded to the property as her sole legal heir and the revenue records of the property were mutated in his name. The said Gangadhar sold property vide registered Sale Deed dated 09.05.1995 in favour of Sri Ganapathsa who is the husband of the plaintiff No.1 and father of the plaintiffs No.2 to 5. The said Gangadhar sold property vide registered Sale Deed dated 09.05.1995 in favour of Sri Ganapathsa who is the husband of the plaintiff No.1 and father of the plaintiffs No.2 to 5. The said Ganapathsa expired leaving behind plaintiffs as his legal heirs who are the absolute owners of the suit property. It is specifically mentioned in the Sale Deed dated 9.5.1995 that Gangadhar is authorized to collect rent from the tenants and recover possession either mutually or exclusively. 25. Admittedly, one Sambhajirao Chavan was the tenant under Iravva. The adopted son of Iravva namely Gangadhar filed eviction petition to evict the tenant after the death of Iravva. All the tenants of the properties surrendered possession of the properties under their occupation to Gangadhar except Sambhajirao Chavan. However, the legal heirs of Sambhajirao Chavan, who were arrayed as defendant Nos.1 to 3 in SC No.45/2020 did not contest the said suit. It is the contention of the petitioner who is defendant No.4 in SC No.45/2020 and the defendant in SC No.46/2020 before the Trial Court that from the death of Iravva, i.e., on 04.04.1993, he has been in actual possession of the suit property by virtue of the Will executed by Iravva. That the suit property is under his occupation as it is owned by him for more than 27 years within the knowledge of the purchaser Ganapathsa. 26. It is relevant to note that the petitioner who is the defendant before the Trial Court filed O.S.No.30/1994 for declaration that he is the absolute owner in possession by virtue of Will executed by Iravva and to restrain the defendant No.1 in the said suit from alienating the suit property. It is relevant to note that the adopted son Gangadhar was arrayed as the defendant No.1 and the subsequent purchaser Ganapathsa was arrayed as second defendant. 27. The said suit was tried along with O.S.No.67/1995 filed by one Prakash Swamisa Meharwade arraying Gangadhar as defendant No.1, the petitioner Gajanan as defendant No.2 and Ganapathsa as defendant No.3. The said suit was filed for specific performance of agreement of sale allegedly executed by Iravva in favour of the plaintiff. 28. The Trial Court clubbed both the suits together and by judgment and decree dated 10.10.2000 dismissed the said suits. The said suit was filed for specific performance of agreement of sale allegedly executed by Iravva in favour of the plaintiff. 28. The Trial Court clubbed both the suits together and by judgment and decree dated 10.10.2000 dismissed the said suits. It is relevant to note that Gangadhar who was arrayed as defendant No.1 in O.S.No.30/1994 had filed a counter claim for injunction to restrain the plaintiff who is the petitioner herein from interfering with his possession. The Trial Court while dismissing the suit, also dismissed the counter claim filed in O.S.No.30/1994. A certified copy of the judgment and decree dated 10.10.2000 passed in O.S. No.30/1994 c/w O.S. No.67/1995 is marked as Ex.P-4 in SC.No.46/2020 and as Ex.P-9 in SC No.45/2020. 29. The judgment and decree passed in O.S.No.30/1994 has been affirmed by a co-ordinate bench of this Court in RFA No.19/2001 as well the challenge made by the petitioner to the same has been affirmed by the Hon'ble Supreme Court vide order dated 22.09.2010 passed in Civil Appeal No.3965/2004. The judgment and decree passed in O.S.No.67/1995 has been affirmed in RFA No.105/2001 which has also been upheld vide order dated 22.09.2010 passed in Civil Appeal No.3966/2004. 30. It is further relevant to note that the petitioner filed O.S.No.154/2021 arraying the respondents No.1 to 5 as defendants in the said suit seeking for a relief that he is absolute owner of the suit property by virtue of adverse possession and the said suit has been dismissed vide judgment and decree dated 27.03.2023 by the Trial Court. The same is pending consideration in R.A.No.68/2023. 31. It is necessary to note that in O.S.No.30/1994 it was the specific case of the plaintiff that he was the owner of the property by virtue of the Will executed by Iravva and issue No.1 was framed in the said suit as to whether the plaintiff proves the due execution of Will dated 10.08.1992. The Trial Court considering issue No.1 has recorded a finding that the said Will is not proved. Issue No.2 was framed in O.S.No.30/1994 as to whether Gangadhar was the adopted son of Iravva. The Trial Court has noticed that the adoption made vide registered adoption deed dated 22.12.1982 was questioned by Iravva in O.S.No.433/1984 and the said suit was dismissed after a full fledged trial, by judgment dated 15.09.1989 and that no appeal was filed against the same. The Trial Court has noticed that the adoption made vide registered adoption deed dated 22.12.1982 was questioned by Iravva in O.S.No.433/1984 and the said suit was dismissed after a full fledged trial, by judgment dated 15.09.1989 and that no appeal was filed against the same. Hence, a finding was recorded that Gangadhar is the adopted son of Iravva. 32. The plaintiffs have filed the present suit to direct the defendants to vacate and handover possession. The defendants entered appearance and contested the suit. The Trial Court has framed issues as noticed above. The Trial Court upon an appreciation of the oral and documentary evidence on record has decreed the suits of the plaintiffs. It is relevant to note that the Trial Court while decreeing the suits has noticed that the attempts made by the petitioner herein to claim under the Will allegedly executed by Iravva and having noticed the judgment rendered in O.S.No.30/1994 has recorded the finding as noticed above. The Trial Court has also noticed that the legal notice was duly served as per the postal acknowledgement as per Ex.P-5(a). The reliance placed by the petitioner on the provisions of the Karnataka Rent Act with regard to area of the suits is premises is rightly rejected by the Trial Court in view of the fact that the plaintiffs have filed a suit for eviction and have terminated the tenancy as per section 106 of T.P. Act. The Trial Court has also noticed that as per section 109 of TP Act, the tenancy under the earlier owner namely, Iravva was inherited by Gangadhar consequent to her death. It is further relevant to note that the Trial Court had adequately considered the contentions put forth by the defendants and recording its findings. 33. The contention of the petitioner that from the date of death of Iravva he, has been enjoying the suit property as absolute owner is ex facie unsustainable and liable to be rejected since the petitioner having claimed to be a tenant under the owner Iravva and subsequently claiming to acquire title by virtue of Will and finding having been recorded in OS No.30/1994 that the Will has not been proved, it is not open to the petitioner to assert that he is in possession of the property as owner. The aspect regarding the petitioner being in possession of the suit property and asserting title to the same has been considered by the Trial Court which has recorded a finding that having regard to the finality of the proceedings in O.S. No.30/1994 initiated by the petitioner which finding is just and proper. 34. From the material on record, it is clear that the petitioner is repeatedly litigating with regard to his alleged right, title or interest in the suit property. His contention claiming to have acquired the title by virtue of Will executed by Iravva has been considered in O.S.No.30/1994 and finding recorded in the said suit regarding the same wherein, the said contention has been considered and negatived. 35. The contention of the petitioner claiming to have title by way of adverse possession has also taken in O.S.No.154/2021 and the said contention has also been negatived. 36. The petitioner admittedly claims to be a tenant of the original owner Iravva. It is the case of the petitioner that he is a legatee under the Will dated 10.08.1992 executed by Iravva and since the death of Iravva on 04.04.1993 he has been in possession of the suit property as its owner and Ganapatsa claiming to be the owner of the property ought to have instituted proceedings for recovery of possession within 12 years and having failed to do so he has lost his right under law. As noticed above, the petitioner has filed O.S. No.30/1994 and in the said suit, issues were framed with regard to due execution of the Will dated 10.08.1992 and as to the validity of adoption of Gangadhar by Iravva. A finding has been recorded in OS No.30/1994 that the petitioner has failed to prove the Will and that the adoption of Gangadhar by Iravva is just and proper. Hence, it is not open to the petitioner to once again contest the present suit in SC Nos.45 and 46 by contending that he is the owner of the suit property by virtue of the Will. 37. Hence, it is not open to the petitioner to once again contest the present suit in SC Nos.45 and 46 by contending that he is the owner of the suit property by virtue of the Will. 37. With regard to the contention that the owners of the property ought to have filed the suit for recovery of possession within 12 years from the date of death of Iravva, it is relevant to note that having regard to the findings in O.S. No.30/1994 wherein the Petitioner has failed to prove the Will dated 10.08.1992 executed by Iravva, the nature of possession would not in any manner fructify as one claiming independent title to the property and the said contention is liable to be rejected. 38. It is forthcoming that the petitioner, on one pretext or the other is litigating so as to remain in possession of the suit property. The petitioner earlier having filed a suit in O.S. No.30/1994 claiming to be a legatee under the Will dated 10.08.1992 of Iravva and having failed in the same has also instituted O.S. No.154/2021 claiming title by way of adverse possession which has been dismissed by the Trial Court vide judgment and decree dated 27.03.2023 and which is pending adjudication in RA No.68/2023. 39. In the case of Tribhuvanshankar relied on by the learned counsel for the petitioner will not aid the case of the petitioner since in the said case, the Hon'ble Supreme Court was considering a case where the relationship of the parties is disputed and in the said context the Hon'ble Supreme Court has held that the parties will be required to adjudicate in appropriate civil proceedings in a regular Civil Court to claim title to the property. 40. The case of Delhi Motor and Co. will also not aid the case of the petitioner since in the said case, the Hon'ble Supreme Court was considering a fact situation wherein a sublease was claimed through various correspondence and in a suit for ejectment, the Hon'ble Supreme Court has noticed that since the period of lease that was being asserted was more than one year, the said document was required to be registered. 41. 41. In the present case, the title to the suit property having adequately adjudicated upon in O.S. No.30/1994 and the said proceedings having attained finality, it is not open to the petitioner to once again putforth the same contentions that he putforth in O.S. No.30/1994 as a defence in the suit for ejectment filed by the plaintiff. The plaintiffs have acquired title to the suit property from Iravva, as noticed above, the Trial Court has recorded a finding that the tenancy of the petitioner has stood attorned by virtue of section 109 of T.P. Act and in view of the fact that the tenancy of petitioner having been terminated by plaintiffs by the legal notice Ex.P-5 and having regard to the clear stipulation of section 106 of the T.P. Act, the legal notice having been served on the petitioner as is forthcoming from the postal acknowledgement at Ex.P-6, the finding of the Trial Court decreeing the suits of the plaintiffs is just and proper. 42. The petitioner has failed to demonstrate that the judgment and decree passed by the Trial Court is in any manner erroneous and has been passed by exercising its jurisdiction illegally or with material regularly or has exercised the jurisdiction not vested by the law. 43. In view of the aforementioned, the present petitions are dismissed as devoid of merits.