Robin Rego S/O Late C G Rego vs R M Kamal Kumar S/O R Manohar
2021 Latest Caselaw 2989 Kant

        IN THE HIGH COURT OF KARNATAKA
          DHARWAD BENCH AT DHARWAD

      DATED THIS THE 26TH DAY OF JULY, 2021

                      BEFORE

THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR

       RSA NO.100109/2021 (EVICTION)

BETWEEN :

ROB IN REGO S/O LATE C G REGO
AGE. 64 YEARS, O CC: RET. PRIVATE TEACHER,
R/O. D.NO.71/4, F ORT MAIN ROAD,
TQ. AND DIST . B ALLARI 583 101.
                                        ...APPELLANT
(B Y SRI.R M KULKARNI, ADVOCATE AND
  SMT.HEMALEKHA, ADV.)

AND

R M KAMAL KU MAR S/O R MANOHAR
AGE. 9 YEARS, OCC: NIL,
R/O. 2ND CROSS, S.N.PET,
TQ. AND DIST . B ALLARI 583 101.
                                      ....RESPONDENT

      THIS RSA IS FIL ED U /SEC.100 REA D WIT H ORDER
X LII RULE 1 OF CPC, PRAYING TO ALLOW TH IS
REGU LAR SECOND APPEAL WIT H COSTS BY SETTIN G
ASIDE T HE JU DG MENT AND DECREE DT D 18.01.2021
PASSED IN R.A.NO.11/ 2 020 ON THE FILE OF THE II
ADDIT IONAL SEN IOR CIV IL JU DGE, B ALLARI, AND TH E
JUDGMENT AND DECREE DTD 21.1 2.2019 PASSED IN
O.S. NO.115/201 6 ON THE FILE OF THE V ADDIT IONA L
CIVIL JU DGE AND JUDICIAL MAGISTRATE FIRS T
CLASS, B ALLARI, AND DISMISS T HE SUIT
      .
      THIS A PPEAL COMING ON F OR ADM ISS ION TH IS
DAY, T HE COU RT DELIVERED THE FOLL OWING:
                                    2


                       : JUDGMENT :

The present appeal is filed by defendant

No.1, challenging the judgment and decree

dated 18.01.2021 passed in R.A.No.11/2020 on

the file of the II Addl. Senior Civil Judge at

Ballari (herein after referred to as 'First

Appellate Court' for brevity) which confirmed

the judgment and decree dated 21.12.2019

passed in O.S.No.115/2016 by the V Addl. Civil

Judge and JMFC, Ballari (herein after referred

to as 'Trial Court' for brevity).

2. There is concurrent finding by both

the First Appellate Court and Trial Court.

Therefore, the defendant No.1 has preferred

the second appeal.

3. The respondent/plaintiff has filed the

suit against the appellant-defendant seeking

relief of eviction of appellant from the suit

schedule property and to get possession of the

same. It is stated that respondent-plaintiff is

the absolute owner of the suit schedule

property. The appellant is the tenant under the

plaintiff in respect of suit schedule property.

There is no dispute regarding the ownership

over the property. It is stated that father of

respondent has given in lease/rent the suit

schedule property 30 years back to the

appellant and appellant is paying the rent. It

is stated that respondent required the schedule

property for his own use and occupation and

requested the appellant to vacate and deliver

the vacant possession, but the appellant did

not respond to the same. Therefore, the

respondent has issued legal notice dated

13.01.2016, calling upon the appellant to

vacate and deliver the vacant possession and

terminated the tenancy with effect from

midnight of 31.01.2016. It is stated that

appellant has received the legal notice and

despite the fact of receiving legal notice, the

appellant has not vacated the suit schedule

premises. Therefore, the respondent has filed

the suit for eviction. The appellant has

contested the suit by filing written statement

and also led the evidence both oral and

documentary.

4. The Trial Court after appreciating the

evidence on record both oral and documentary

had decreed the suit of respondent and

direction was issued to the appellant-defendant

to vacate the suit schedule property and

deliver the vacant possession of the premises

to the respondent/plaintiff within 60 days from

the date of order. Being aggrieved by the

judgment and decree passed by the Trial Court,

the defendant has preferred the appeal in

R.A.No.11/2020 before the First Appellate

Court and the First Appellate Court after re-

appreciating the evidence on record, has

dismissed the appeal by confirming the

judgment and decree passed by the Trial Court.

Therefore, the defendant has preferred the

present second appeal.

5. Learned counsel for the

appellant/defendant has submitted that father

of the plaintiff has given in lease the suit

schedule property in favour of the defendants

about 30 years back and now the appellant is

aged 64 years. Learned counsel submits that

defendant has spent huge amount of Rs.4

Lakhs for renovation and repair works to the

schedule premises and without considering all

these evidence, the Trial Court has wrongly

decreed by passing the decree of eviction of

the defendant which is erroneously confirmed

by the First Appellate Court. Therefore, it is

submitted that there is substantial question of

law involved in the present case. Further it is

submitted that jural relationship between the

appellant and defendant is not proved and

without considering the same, the Trial Court

has wrongly decreed the suit directing the

appellant to vacate the premises which is

erroneously confirmed. It is further submitted

that there are substantial questions of law are

involved in the present case to consider the

appeal on merits that the termination of

tenancy is not in accordance with law as per

Section 106 of the Transfer of Property Act.

Further, the jural relationship of landlord and

tenant between the appellant and defendant, is

contrary to the oral and documentary evidence

on record, is also amounting substantial

question of law, as it is question of perversity

involved. Also canvassed the arguments on

other substantial questions of law raised as

mentioned in the appeal memorandum.

6. Upon having heard the arguments of

the learned counsel for the appellant and

considering the facts involved in the case, the

appellant has not disputed the ownership of the

respondent/defendant over the suit schedule

property. The appellant has admitted that

father of the plaintiff during his ownership has

given in lease/rent the suit schedule property

about 30 years back and the appellants are

paying the rent from time to time. This

admission of the appellant itself shows the fact

that the plaintiff is the owner over the suit

schedule property, even though the respondent

has raised the substantial question of law

regarding the gift dated 15.11.2014, which is

contrary to chapter VII of the Transfer of

Property Act, 1882, but the appellant has

admitted that the respondent/plaintiff is the

owner over the suit schedule property.

Therefore, the jural relationship between the

appellant and respondent is proved. Further

more, upon considering another contention

urged by the learned counsel for appellant, the

legal notice issued terminating the tenancy is

not valid and proper but upon considering the

evidence on record, Ex.P6 dated 07.12.2015

and Ex.P9 dated 17.12.2015 addressed by

defendant No.1 to father of the plaintiff, proves

the fact that the legal notice issued terminating

the tenancy is found to be proper. Therefore,

there are no substantial questions of law

involved in the present appeal, as the suit

simplicitor is seeking relief of eviction of the

appellant from the suit schedule property.

Upon considering the evidence discussed by

both the Court below that jural relationship of

appellant and respondent as landlord and

tenant is proved and also the issuance of legal

notice terminating the tenant is also found to

proper. Hence, the present appeal is found to

be devoid of merits as there are no substantial

questions of law are involved to consider the

present appeal. Therefore, the appeal is liable

to be dismissed.

7. Further considering the fact that the

appellant as tenant of the said premises is

residing for more than 30 years and moreover

the appellant is now 64 years old, hence some

time has to be granted for delivering the

vacant possession of the property to the

respondent-plaintiff. Accordingly, the appellant

is granted one and half year time to hand over

the vacant possession of the suit schedule

property to the respondent-plaintiff. Hence, I

proceed to pass the following:

ORDER

This appeal is hereby dismissed. The

judgment and decree dated 18.01.2021 passed

in R.A.No.11/2020 on the file of the II Addl.

Senior Civil Judge at Ballari, which confirmed

the judgment and decree dated 21.12.2019

passed in O.S.No.115/2016 by the V Addl. Civil

Judge and JMFC, Ballari, are hereby affirmed.

The appellant/defendant has given time of

one and half year to hand over the vacant

possession of the suit schedule property to the

respondent/plaintiff from the date of this order.

The appellant shall file an affidavit

undertaking before this Court stating that he

would vacate and hand over vacant possession

of suit property to the respondent within one

and half year from today without creating any

third party rights.

The appellant is directed to deposit the

monthly rent amount from May 2021, as agreed

between the parties before the Trial Court.

The amount deposited by the appellant

before this Court shall be transmitted to the

Trial Court and respondent is at liberty to

receive the said rent amount.

No order as to costs.

Draw decree accordingly.

Sd/-

JUDGE

RM