Murigiswamy vs Smt M V Rajamma
2021 Latest Caselaw 5558 Kant

                                        RSA.1879/2006
                           1
     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 6TH DAY OF DECEMBER 2021

                        BEFORE

     THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

        REGULAR SECOND APPEAL NO.1879/2006

BETWEEN:

MURIGISWAMY
S/O SHANKARSWAMY,
DECEASED BY LRS:

1.      MALLAJAMMA
        W/O LATE MURIGISWAMY,
        DEAD BY LRS

1(A)    NAGAMMA
        W/O SHIVAPPA,
        D/O MURIGISWAMY,

1(B)    SHANKARAMMA
        W/O PUTTANNA,

        BOTH ARE MAJOR,
        HOUSE HOLD,
        R/AT CHIKKAYARAHALLI,
        NORTH BANK, MYSURU.

1(C)    M.INDIRA
        W/O MAHADEVAPPA,
        D/O MURIGISWAMY,
        MAJOR,
        R/AT NO.2162,
        KODAGI MATH,
        BASAVESHWARA ROAD,
        K.R.MOHALLA,
        MYSURU.

2.      RATNAMMA
        W/O LATE SHANTHAMALLASWAMY,
        AGE: 38 YEARS,
        HOUSEHOLD.
                                               RSA.1879/2006
                           2
3.     MAHADEVASWAMY
       S/O MURUGISWAMY,
       AGE: 36 YEARS,
       HOUSEHOLD.

4.     GIRIJAMMA
       (DELETED V/COURT ORDER DT.19.9.2008)

5.     INDIRAMMA
       D/O LATE MURIGISWAMY,
       AGE: 32 YRS, HOUSEHOLD

       ALL ARE R/O KODAGEMATH,
       2ND CROSS,
       BASAVESWARANAGA,
       K. R. MOHALLA,
       MYSORE-570 011.               ... APPELLANTS

(BY SRI SYED AKBAR PASHA, ADV. FOR
    SRI MAHANTESH S. HOSMATH, ADV.;
    V/O DATED 19.09.2008, A4 IS DELETED)

AND:

SMT. M.V. RAJAMMA
W/O SURESH VADAKANNA
MAJOR, HOUSEHOLD, D. NO. 2162,
2ND CROSS, BASAVESHWARANAGAR,
K.R.MOHALLA, MYSORE-570 011.               ... RESPONDENT


     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE
DATED 22.04.2006 PASSED IN RA.NO.45/2004 ON THE FILE
OF THE PRESIDING OFFICER, FAST TRACK COURT-II,
MYSORE, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 30.11.1994 PASSED IN
OS.NO.1701/1993 (84/81) ON THE FILE OF THE PRL.I
MUNSIFF, MYSORE.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 24.11.2021, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT', THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
                                              RSA.1879/2006
                              3
                      JUDGMENT

Defendant No.1 has filed the instant regular

second appeal challenging the judgment and decree

dated 22nd April 2006 passed by the Fast Track Court-

II, Mysore, in R.A.No.45/2004 setting aside the

judgment and decree dated 30th November 1994 made

in O.S.No.1701/1993 (old No.84/1981) by the court of

Principal I Munsiff at Mysore and thereby decreeing

the suit filed by the plaintiff.

2. For the sake of convenience, the parties to the

appeal are referred to as per their rankings given

before the trial court.

3. Brief facts of the case that would be relevant

for the purpose of disposal of this appeal are:

The plaintiff had filed O.S.No.84/1981 which

was subsequently transferred and re-numbered as

O.S.No.1701/1993 before the court of Principal I

Munsiff at Mysore, seeking a relief of declaration that

she is entitled to be in occupation of the suit schedule RSA.1879/2006

property and that the order and decree passed in

H.R.C.No.107/1972 on the file of II Additional Munsiff,

Mysore, was not binding on her and to declare the

decree as null and void and for permanent injunction

restraining the defendants from taking possession of

the suit schedule property. The suit schedule property

is a portion of the property bearing door No.2162

situated at Basaveshwara Road, K.R.Mohalla, Mysore,

which is morefully described in the schedule given to

the plaint.

4. It is the case of the plaintiff that the suit

schedule property belongs to Abhimutt situated in

Somwarpet Taluk, Kodagu District and is known as

Kodagina Mutt. The plaintiff has been in possession

and enjoyment of the suit schedule property for more

than 17 years prior to filing the suit and she was put

in possession of the property by one

Channaveeraswamy, who was the chief of the Mutt.

The first defendant is a stranger to the suit schedule

property and he is in occupation of another portion of RSA.1879/2006

the property bearing door No.2162. Even the first

defendant was put in possession of his portion of

property by the aforesaid Channaveeraswamy, but

later on, the first defendant turned hostile towards

said Channaveeraswamy. Subsequently, the first

defendant started demanding rent from the plaintiff

and other occupants of the mutt building and the

plaintiff resisted the said illegal claim by the

defendants. The first defendant therefore filed

H.R.C.No.226/1967 against one Smt.Mahadevamma

and the plaintiff herein, alleging that the plaintiff was

a sub-lessee under the aforesaid Smt.Mahadevamma.

In the said proceedings, the plaintiff had filed a

separate written statement denying the jural

relationship between herself and the first defendant

herein and she had also denied that she was a sub-

lessee under Mahadevamma and on the other hand,

she had contended that she was in occupation of the

suit schedule property with the permission of

Channaveeraswamy. The said H.R.C. petition i.e., RSA.1879/2006

H.R.C.No.226/1967 was dismissed and the first

defendant herein had filed a revision as against the

said order before the District Court and the said

revision was allowed. The plaintiff herein preferred a

civil revision petition against the said order before this

court in C.R.P.No.1389/1991 and this court allowed

the said revision petition and dismissed the said HRC

petition on the ground that the description of the suit

schedule property differs with the description of the

property in respect of which quit notice was issued.

5. Subsequently, the first defendant filed

H.R.C.No.107/1972 before the court of II Additional

Munsiff, Mysore, only as against Smt.Mahadevamma

and the plaintiff herein was not made as a party to the

said proceedings. The said HRC proceedings was

decreed in favour of the first defendant and

thereafterwards he filed Execution Case No.590/1977

and on receipt of a delivery warrant issued in the said

proceedings, the plaintiff herein having come to know

about the eviction decree passed in RSA.1879/2006

H.R.C.No.107/1972 proceedings initiated by the first

defendant herein, had filed the present suit.

6. On receipt of suit summons, the first

defendant had entered appearance before the trial

court and had filed written statement contending that

the entire property bearing door No.2162 is his

ancestral property and he had leased the suit schedule

property to Smt.Mahadevamma, who is the sister of

plaintiff and since Mahadevamma had committed

default in payment of rents and since she had

unauthorisedly sub-let the suit schedule property to

the plaintiff, he had filed H.R.C.No.107/1972 and

obtained a decree against Mahadevamma. He further

contended that the eviction order was passed after

contest and the plaintiff, who is the sub-lessee under

Mahadevamma, is bound by the decree passed in

H.R.C.No.107/1972. He further denied the permissive

possession of the plaintiff under Channaveeraswamy

and also contended that the plaintiff has no right to

obstruct the possession of the suit schedule property RSA.1879/2006

by the defendant in pursuant to the decree passed in

H.R.C.No.107/1972 and accordingly, prayed to

dismiss the suit.

7. Subsequently, the second defendant -

Jayanandaswamiji Belur Mutt was impleaded as a

party to the proceedings, but the said defendant did

not file any written statement and contest the suit.

During the pendency of the proceedings before the

trial court, the defendant No.1 died and his legal

representatives were brought on record.

8. On the basis of the rival pleadings, the trial

court framed the following issues:

"1. Whether the plaintiff proves that the order and decree in HRC No.107/72 on the file of the II Addl. I Munsiff, Mysore, is not binding on her?

2. Whether the plaintiff is entitled to be in occupation of the plaint schedule property?

3. Whether the plaintiff is entitled for perpetual injunction as prayed in the suit?

4. What order?"

RSA.1879/2006

9. During the course of trial, the plaintiff had

examined herself as PW-1 and got marked 12

documents as Exs.P1 to P12. On behalf of the

defendants, two witnesses were examined as DWs-1

and 2 and 11 documents were marked as Exs.D1 to

D11.

10. The trial court after completion of recording

the evidence heard the arguments addressed on both

sides and by its judgment and decree dated

30.11.1994 dismissed the suit. Being aggrieved by the

same, the plaintiff had filed R.A.No.45/2004 before the

Fast Track Court-II, Mysore (for short "the first

appellate court") and the said regular appeal was

allowed by the first appellate court by its judgment

and decree dated 22.04.2006 and it was held that the

plaintiff was in occupation of the suit schedule

property in her own right and not as a sub-tenant

under her sister Smt.Mahadevamma and defendant

No.1 and his legal representatives were restrained

from dispossessing her from the suit schedule RSA.1879/2006

property on the strength of the decree obtained in

H.R.C.No.107/1972. It was also observed that the

question of title to the property was kept open and no

opinion was expressed in this regard.

11. Being aggrieved by the said judgment and

decree passed by the first appellate court in

R.A.No.45/2004, the present regular second appeal is

filed by the legal representatives of the first defendant.

12. This Court on 10.06.2009 had admitted this

regular second appeal to consider the following

substantial questions of law:

"1. Whether the Lower Appellate Court was justified in reversing the judgment of the trial court despite the plaintiff not having produced the order passed in HRC No.107/1972 and in the absence of the same, whether the Lower Appellate Court was justified in coming to the conclusion that the plaintiff was not a sub-tenant under sister Mahadevamma?

2. Whether the Lower Appellate Court was justified in recognizing the so called in dependent right of the plaintiff even though the order passed in HRC No.107/1972 had attained finality and at that stage, the said issue having not arisen for consideration?"

RSA.1879/2006

13. Learned counsel for the appellants/legal

representatives of defendant No.1 submitted that the

first appellate court had erred in decreeing the suit of

the plaintiff. He submitted that the plaintiff was a

sub-lessee in respect of the suit schedule property

under her sister Smt.Mahadevamma and therefore,

she is bound by the decree passed in

H.R.C.No.107/1972 and the first appellate court

without appreciating this aspect of the matter has

erroneously decreed her suit. He further submitted

that in the absence of production of the judgment and

decree passed in H.R.C.No.107/1972, the plaintiff

could not have sought for a relief that the same is not

binding on her and the said decree is null and void. In

support of this argument of his, he has relied upon the

judgment of the Hon'ble Supreme Court in the case of

Surinder Singh -vs- Central Government and

Others1. He submitted that in the absence of the

plaintiff producing the order and decree in

H.R.C.No.107/1972, the first appellate court could not

AIR 1986 SC 2166 RSA.1879/2006

have come to a conclusion that the plaintiff was not a

sub-tenant under her sister Mahadevamma and the

first appellate court has further erred in recognizing

the independent right of the plaintiff in the absence of

order and decree passed in H.R.C.No.107/1972.

14. The plaintiff, who was served in this appeal,

had initially engaged the services of an advocate, who

subsequently had filed a memo for retirement and

after his retirement, plaintiff has remained

unrepresented.

15. I have carefully considered the arguments

addressed by the learned counsel for the

appellants/defendants and also perused the material

evidence available on record.

16. The undisputed facts of this case are that the

plaintiff is in possession and enjoyment of the suit

schedule property and that prior to filing

H.R.C.No.107/1972, the first defendant had filed

H.R.C.No.226/1967 and in the said proceedings, he RSA.1879/2006

had contended that the suit schedule property, which

was the subject matter of the said HRC proceedings,

was leased by him to Smt.Mahadevamma, who is the

elder sister of the plaintiff and the said Mahadevamma

had sub-leased the suit schedule property in favour of

the plaintiff. Therefore, the possession of the plaintiff

was admitted by the first defendant herein as early as

in the year 1967 itself.

17. In H.R.C.No.226/1967, the plaintiff herein,

who was arrayed as the second respondent, had filed

her written statement disputing the jural relationship

and also had contended that she was not a sub-tenant

of Smt.Mahadevamma. She had taken a specific stand

that she was put in possession of the suit schedule

property by one Channaveeraswamy. H.R.C.No.

226/1967 was dismissed after contest. The first

defendant herein, who was the petitioner in the said

case, had preferred a revision before the District Court

and the said revision was allowed. Against the said

order, the plaintiff herein, who was the second RSA.1879/2006

respondent in the said HRC proceedings, had filed

Civil Revision Petition No.1389/1991 and the said

revision petition was allowed on the ground that the

description of the property mentioned in the quit

notice and the description of the suit schedule

premises in the said HRC proceedings did not tally

with each other. Subsequent to the said order passed

by this court in Civil Revision Petition No.1389/1991,

the first defendant herein filed a separate eviction

petition in H.R.C.No.107/1972 before the court of II

Additional Munsiff, Mysore, only as against

Smt.Mahadevamma without impleading the plaintiff

herein as a party to the said proceedings. An order of

eviction was passed in favour of the first defendant

herein in H.R.C.No.107/1972 and the sole respondent

in the said case Smt.Mahadevamma had not

questioned the said order. Subsequently the first

defendant herein filed Execution Case No.590.1977

and in the said case, a delivery warrant was issued

and the plaintiff herein came to know about the order RSA.1879/2006

passed in H.R.C.No.107/1972 only when an attempt

was made to execute the said delivery warrant.

Immediately thereafterwards the plaintiff had filed

H.R.C. Revision Petition No.43/1977 before the court of

District Judge at Mysore and the said revision petition

was disposed of by order dated 18th February 1978 as

per Ex.D6. The said order dated 18.02.1978 reads as

follows:

"Petitioner by Sri.G.B.R.

To hear: Heard Sri.G.B.R. The 1st respondent has filed an eviction petition in H.R.C.No.197/77 on the file of II Addl.I Munsiff against 2nd respondent alleging that the II respondent has sub-leased the premises to the present petitioner and also claiming that he wants the premises for his own use and occupation. The said eviction petition was allowed. The present petitioner contends and has been contending in earlier proceedings that she is not a sub-tenant and that she was put in possession by one Channaveeraswamy and that there is no relationship of landlord and tenant between the 1st respondent and herself.

Sri.G.B.R. the learned counsel for present petitioner contends that the 1st respondent Murugiswamy has taken execution proceedings against R2 Mahadevamma and would forcibly evict the present petitioner on the ground that the RSA.1879/2006

said eviction order made against R2 will be binding on the petitioner under Sec.30 of H.R.C. Act and hence the present petitioner is interested party and hence she can file this revision petition.

If the present petitioner admits that she is a sub tenant under R2 Mahadevamma, the eviction order passed against R2 Mahadevamma would be binding on her under Sec.30 H.R.C. Act, even though she was not made a party to the eviction proceedings she cannot also succeed in revision if she admits that she is a sub lessee as such sub letting is not allowed.

If the present petitioner has independent title to be in possession of the suit premises, then the impugned order will not be binding on her even under Sec.30 of H.R.C. Act, and as she is not a party to the proceedings in which the impugned order was made, she can resist the execution proceedings for eviction, on the strength of her independent title. In either case, it cannot be said that she can be considered as a person aggrieved by the impugned order. I therefore hold that the present revision petition filed by her is not maintainable and dismiss the same. No costs."

18. Since the plaintiff herein had taken up a

specific stand in HRC No.226/1967 disputing the jural

relationship between herself and the first defendant

herein and also she had denied that she was a sub-

RSA.1879/2006

lessee under Mahadevamma and on the other hand,

she was put in possession of the suit schedule

property by one Channaveeraswamy and the property

belongs to Kodagina Mutt, after the disposal of HRC

Revision Petition No.43/1977, she had filed the

present suit in O.S.No.1701/1993 (old No.84/1981)

with a prayer to declare that she is entitled to be in

occupation of the suit schedule property and the order

and decree passed in H.R.C.No.107/1972 was not

binding on her and the same was null and void and

also had sought for a permanent injunction

restraining the first defendant herein from taking

possession of the suit schedule property.

19. The trial court without properly appreciating

the fact that the plaintiff had disputed the jural

relationship between herself and the first defendant

herein even prior to filing of H.R.C.No.107/1972 and

she had also contended that she was not a sub-lessee

under Mahadevamma and had claimed independent

right over the suit schedule property, had dismissed RSA.1879/2006

the suit on an erroneous conclusion that there is a

decree of eviction in H.R.C.No.107/1972 and since it

has been pleaded in the said proceedings that the

plaintiff is a sub-lessee of Mahadevamma, she is

bound by the order and decree passed in

H.R.C.No.107/1972 and had further observed that the

sub-lessee is not a necessary party in HRC

proceedings. It is also observed that the plaintiff had

failed to prove that she had an independent right for

possession over the suit schedule property.

20. The first appellate court on a re-appreciation

of the entire oral and documentary evidence available

on record and having properly formulated the points

that arise for consideration, has rightly arrived at a

conclusion that the plaintiff is in occupation of the

suit schedule property in her own right and not as a

sub-tenant under her sister Mahadevamma. The first

appellate court has referred to the deposition of

Channaveeraswamy in the earlier HRC proceedings

i.e., in H.R.C.No.226/1967, which is marked as Ex.P5.

RSA.1879/2006

Channaveeraswamy had died before filing of the

present suit and therefore, his evidence recorded in

the earlier proceedings is admissible in view of Section

33 of the Evidence Act. In his deposition,

Channaveeraswamy has categorically stated that he

had given the premises in question to the plaintiff at

the instance of the then Swamiji. Further, the plaintiff

had taken a categorical stand to the said effect in the

earlier proceedings and she had denied jural

relationship with the first defendant herein and she

had also denied that she was a sub-lessee under

Mahadevamma. When admittedly the plaintiff is in

possession of the suit schedule property and having

regard to the pleadings and deposition in the earlier

HRC proceedings, the first defendant ought to have

made the plaintiff herein as a party to

H.R.C.No.107/1972.

21. Learned counsel for the first defendant has

contended that in the absence of production of copy of

the order passed in H.R.C.No.107/1972, the plaintiff RSA.1879/2006

was not entitled for the relief sought for in the present

suit. The decree has been obtained in

H.R.C.No.107/1972 by the first defendant and an

attempt is made to evict the plaintiff herein on the

strength of the said decree by the first defendant

herein and therefore, passing of eviction order in HRC

No.107/1972 in respect of the suit schedule premises

of which admittedly the plaintiff is in possession,

without making her as a party to the said eviction

proceedings, is not disputed by the first defendant.

22. It is the contention of the first defendant that

the respondent in the HRC proceedings

Smt.Mahadevamma is the lessee and the plaintiff is

the sub-lessee in respect of the suit schedule property

and therefore, the order of eviction passed in

H.R.C.No.107/1972 is binding on her. In order to

substantiate this aspect of the matter, it was for the

first defendant to produce the copy of the said order

and demonstrate before the courts below as to whether RSA.1879/2006

there is a finding to the said effect in the said

proceedings.

23. The judgment relied upon by the learned

counsel for the first defendant in Surinder Singh's

case (supra) would not be applicable to the facts of the

present case as the said judgment is rendered in an

appeal arising out of an order passed by the High

Court in a writ petition filed under Article 226 of the

Constitution of India. It has been held in the said case

that in the absence of production of copy of the order,

a High Court cannot set aside the said order. The said

judgment would not be applicable to the fact situation

of the present case and in any event, the plaintiff

herein has not prayed to set aside the order and

decree passed in H.R.C.No.107/1972. The plaintiff in

order to establish that she is not a sub-tenant under

her sister Mahadevamma has relied upon the

pleading, depositions and the order passed in earlier

HRC proceedings and the first appellate court having

appreciated the same has rightly come to a conclusion RSA.1879/2006

that the plaintiff had successfully proved that she was

not a sub-tenant under her sister Mahadevamma. On

the other hand, to prove that plaintiff was a sub-

tenant of Mahadevamma, the first defendant has not

produced any material before the courts below and he

has only raised a contention that having regard to the

eviction order passed in H.R.C.No.107/1972 against

Mahadevamma, the plaintiff being the sub-lessee

under Mahadevamma is bound by the said order.

However, the first defendant has failed to produce the

said order before the courts below.

24. Insofar as the question of the plaintiff's

independent right is concerned, the same was pleaded

by her in her written statement filed in

H.R.C.No.226/1967. Further, Channaveeraswamy

under whom she claims right and possession of the

suit schedule property was examined in the said

proceedings and he has clearly stated that with the

permission of the then Swamiji of the mutt, he had put

the plaintiff in possession of the suit schedule RSA.1879/2006

property. As stated earlier, said evidence of

Channaveeraswamy is admissible having regard to

Section 33 of the Evidence Act and the first appellate

court has, therefore, rightly arrived at a conclusion

that the plaintiff had an independent right of her own

in the suit schedule property and she was not a sub-

tenant under Smt.Mahadevamma and has accordingly

allowed the appeal and set aside the judgment and

decree passed by the trial court and resultantly,

decreed the suit.

25. Under the circumstances, I am of the

considered view that the first appellate court was fully

justified in reversing the judgment and decree passed

by the trial court in the absence of production of order

copy in H.R.C.No.107/1972 as there was sufficient

material available on record to show that the plaintiff

was not a sub-tenant under her sister Mahadevamma

and she had an independent right of her own in the

suit schedule property. Inspite of the fact that there

was sufficient pleading and material evidence to the RSA.1879/2006

said effect in the earlier eviction proceedings i.e.,

H.R.C.No.226/1967, the first defendant herein has

initiated the second eviction proceedings in

H.R.C.No.107/1972 without making the plaintiff as a

party to the said proceedings though she is admittedly

in possession of the suit schedule property.

26. Under the circumstances, both the

substantial questions of law framed by this court while

admitting the appeal are answered in the affirmative.

Resultantly, this regular second appeal should fail and

accordingly, the same is dismissed.

Sd/-

JUDGE

KNM/-