Karnataka High Court
Sri Sarvottam S/O Devaki Krishna Kamat vs Gopinath S/O Haridas Kidiyoor on 29 July, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC-D:10664
RSA No. 100261 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO. 100261 OF 2024 (POS-)
BETWEEN:
SRI SARVOTTAM S/O DEVAKI KRISHNA KAMAT
AGE: 51 YEARS, OCC: BUSINESS
R/O.H.NO.15, ASHOK NAGAR, HUBBALLI-580032.
...APPELLANT
(BY SRI SACHIN C.KULKARNI, AND
VINAYAK S. KULKARNI, ADVOCATES)
AND:
1. GOPINATH S/O HARIDAS KIDIYOOR
AGE: 69, OCC: ADVOCATE
R/O SHRIHARI, PLOT NO.16
IVTH MAIN, SHAKTINAGAR,
GANDHI NAGAR, DHARWAD-580004.
2. SMT. REKHA S/O DINESH
AGE: 67 YEARS, OCC: HOUSEWIFE
R/O DRISHYA, H.NO.15 A, 1ST MAIN,
RAJATGIRI, DHARWAD-580004.
Digitally signed
by YASHAVANT 3. SMT. VEENA W/O K.ANANTH PADMANABHA BHAT
NARAYANKAR
AGE: 61, OCC: HOUSEWIFE,
Location: HIGH
COURT OF R/BY GPA HOLDER, ANANTH S/O HARIDAS
KARNATAKA
DHARWAD KIDIYOOR, C/O KIDIYOOR ELECTRONICS,
BENCH SHRI PRAKASH BUILDING
DHARWAD
SUBHAS ROAD, DHARWAD-580001.
...RESPONDENTS
(BY SRI GOPINATH HARIDAS KIDIYOOR (PARTY-IN-PERSON))
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE PASSED BY I ADDITIONAL
SENIOR CIVIL JUDGE AND CJM, DHARWAD IN R.A.NO.51/2023
DATED 01.03.2024 AND CONSEQUENTLY THE JUDGMENT AND
DECREE PASSED BY THE I ADDITIONAL CIVIL JUDGE AND JMFC,
DHARWAD IN O.S.NO.490/2021 BE CONFIRMEND.
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NC: 2024:KHC-D:10664
RSA No. 100261 of 2024
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. Heard the argument of learned counsel for appellant as well as party-in-person for respondent No.1.
2. This regular second appeal is filed by the defendant challenging the judgment and decree dated 01.03.2024, passed in R.A.No.51/2023, by the I Additional Senior Civil Judge and C.J.M. Dharwad, (for short, 'first appellate Court'), which reversed the judgment and decree dated 04.08.2023, passed in O.S.No.490/2021, by the I Additional Civil Judge and J.M.F.C. Dharwad (for short, 'trial Court').
3. The suit filed for eviction and possession by the plaintiff is dismissed which is reversed by the first appellate Court, thereby directing the appellant/defendant No.1 to hand over vacant possession of the suit premises. Being aggrieved by this, second appeal is filed.
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NC: 2024:KHC-D:10664 RSA No. 100261 of 2024
4. For the purpose of convenience, the ranking of the parties is referred as per their status before the trial Court.
5. It is case of the plaintiff that the plaintiff and defendant Nos.2 and 3 are the joint owners of the suit schedule properties. Defendant No.1 is the tenant of the suit premises under the ownership of plaintiff and defendant Nos.2 and 3. It is submitted that the suit schedule property is the commercial property. Defendant No.1 being the tenant, who is running Hotel in the ground floor and first floor of the same building. Therefore, the plaintiff has filed the suit for possession and which is dismissed by the trial Court.
6. As per the appeal filed by the plaintiff, first appellate Court has set aside the judgment and decree and decreed the suit thereby directing defendant No.1 to handover the vacant possession of the suit schedule premises.
7. Being aggrieved by this, defendant No.1 has preferred this second appeal. It is submitted by learned -4- NC: 2024:KHC-D:10664 RSA No. 100261 of 2024 counsel for plaintiff/defendant No.1 that the plaintiff alone is not owner of the suit property but defendant Nos.2 and 3 are also co-owners of the property along with plaintiff. Therefore, plaintiff alone is not exclusive owner. Hence, the decree passed directing the appellant to handover the possession is not correct and therefore, prays to allow the appeal.
8. Further, submitted that defendant Nos.2 and 3 have consented defendant No.1 to continue as tenant but the plaintiff alone is objecting to continue defendant No.1 as tenant. Therefore, under these circumstances, when other co- owners have consented defendant No.1 to continue in the suit premises, hence, the suit filed by the plaintiff for possession is not maintainable and has rightly considered by the trial Court and hence, prays to set aside the judgment and decree passed by the trial Court by allowing the appeal.
9. Upon considering the entire case, it is not disputed that the plaintiff and defendant No.2 and 3 are joint owners of the suit schedule properties. It is also not in dispute that defendant No.1 is tenant of the ground floor and first floor of the suit property and running hotel therein. It is -5- NC: 2024:KHC-D:10664 RSA No. 100261 of 2024 the only contention of defendant No.1 that the plaintiff alone is objecting defendant No.1 to continue as tenant, but defendant Nos.2 and 3 have consented defendant No.1 to continue as tenant in the suit scheduled premises. When this being the submission made by defendant No.1, but in that statement defendant Nos.2 and 3 have not stated they have consented defendant No.1 to continue as tenant in the suit schedule property but defendant Nos.2 and 3 have only stated that they want their 1/3rd share each over the suit property. Therefore, it is proved that plaintiff and defendant Nos.2 and 3 are the joint owners/co-owners of the suit schedule property.
10. As it is not disputed by defendant No.1 that he is the tenant over the property from 1980 till today. Now the plaintiff wants share in the property for the purpose of establishing his office since the plaintiff is an advocate. Therefore, plaintiff has made out case for his bona fide requirements of getting property for making of his profession. Therefore, the trial Court has committed an error in dismissing the suit. The first appellate Court has correctly -6- NC: 2024:KHC-D:10664 RSA No. 100261 of 2024 passed the decree directing defendant No.1 to hand over the vacant possession of the suit schedule properties to the plaintiff. Therefore, the judgment and decree passed by the first appellate Court is not liable to be interfered with. Hence, it is confirmed.
11. If at all defendant Nos.2 and 3 want their share in the property, they put forth their remedy before the appropriate forum.
12. Hence, upon considering the appeal, there is no substantial question of law involved to continue the case and considering the case. Therefore, appeal is deserves to be dismissed.
13. However, defendant No.1 is granted four months time to hand over vacant possession of the suit schedule premises from the date of web hosting the order.
Sd/-
(HANCHATE SANJEEVKUMAR) JUDGE AC CT:GSM/List No.: 1 Sl No.: 48