Bhimashankar vs Sanjay And Anr
2021 Latest Caselaw 3355 Kant

           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

      DATED THIS THE 20TH DAY OF SEPTEMBER 2021

                         BEFORE

        THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

            R. S. A. NO.200337 OF 2017 (POS)

BETWEEN:

BHIMASHANKAR
S/O ARJUNAPPA HARKERI,
AGE: 48 YEARS, OCC: GOVT. SERVANT,
R/O PLOT NO.122, VINAYAK HOUSING SOCIETY,
KALABURAGI
                                              ...APPELLANT

(BY SRI. SHRAVAN KUMAR, ADV.)

AND

1.    SANJAY
      S/O VITHAL RAO MURUDKAR
      AGE: 40 YEARS, OCC:BUSINESS

2.    SMT. ASHA
      W/O VITHAL RAO MURUDKAR
      AGE: 70 YEARS, OCC:BUSINESS

BOTH ARE R/O H.NO.891/88/89/44,
YESHWANT NAGAR, UDNOOR ROAD,
KALABURAGI-585101
                                            ...RESPONDENTS

    THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE
JUDGEMENT AND DECREE DATED 19.08.2017 PASSED IN
                                 2



R.A.NO.26/2015 ON THE FILE OF THE III ADDL. SENIOR CIVIL
JUDGE,   KALABURAGI,    DISMISSING    THE   APPEAL    AND
CONFIRMING THE JUDGEMENT AND DECREE DATED 31.03.2015
PASSED IN O.S.NO.382/2010 ON THE FILE OF THE I ADDL. CIVIL
JUDGE AND JMFC, KALABURAGI.

     THIS RSA COMING ON FOR ORDERS THIS DAY, THE COURT
DELIVERED THE FOLLOWING:


                             JUDGMENT

This appeal is filed challenging the judgment and

decree dated 19.08.2017, passed in R.A.No.26/2015 by the

III Addl. Senior Civil Judge, Kalaburagi, confirming the

judgment and decree dated 31.03.2015, passed in

O.S.No.382/2010 by the I Addl. Civil Judge & JMFC at

Kalaburagi.

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

as per their ranking before the Trial Court. Appellant is the

plaintiff and respondent Nos.1 & 2 are defendant Nos.1 & 2

before the Trial Court.

3. Facts giving rise to the filing of the appeal briefly

stated are as under:

Plaintiff filed a suit for possession contending that the

plaintiff is the owner of property bearing Corporation No.

1-891/88/89/44 situated in Yeshwant Nagar, Udnoor Road,

Gulbarga. He has let out the suit house to the defendants

on a monthly rent of Rs.3,000/- and defendants are in

occupation of the house as tenants. In order to cause

harassment and threats, they have created false and

fictitious sale deed in their favour without there being any

consideration. Dispute was raised before the Sub-Inspector

of Police, Ashok Nagar Police Station. The plaintiff has taken

separate steps in a separate forum to get the sale deed

cancelled. The defendants have not paid the rent. Plaintiff

issued notice to the defendants terminating the tenancy

under Section 106 of the Transfer of Property Act. Inspite of

service of notice, defendants have refused to vacate the suit

house. Hence the plaintiff filed this suit.

3.1. Defendants filed written statement denying the

title of the plaintiff over the suit house and thereby

contended that there is no jural relationship of Landlord and

tenants between the plaintiff and defendants. It is

contended that plaintiff has sold the suit house to the

defendants for a consideration of Rs.4,91,000/- under the

registered sale deed dated 13.08.2008 and delivered the

possession of the suit property to the defendants. Plaintiff

suppressing the facts, filed this present suit. Hence prayed

to dismiss the suit.

3.2. The Trial Court, on the basis of pleadings of

parties, framed the following issues:

1. Whether the plaintiff proves that he is landlord and the defendants are tenants of the suit schedule property?

2. If so, whether tenancy is legally terminated?

    3.     Whether     the    suit   in    the    present   form    is
           maintainable in the eyes of law?
    4.     What order or decree?

3.3. Plaintiff in order to prove his case, examined

himself as PW-1 and examined three witnesses as PW-2 to

PW-4 and got marked documents Ex.P1 and P2. On the

other hand, defendant No.1 was examined as DW-1 and one

witness was examined as DW-2 and got marked documents

Ex.D1 to D13. The Trial Court, after recording evidence and

considering the material on record, held that the plaintiff has

failed to prove that he is the landlord and defendants are the

tenants of the suit schedule property and further held that

issue No.2 does not survive for consideration and further

answered issue No.3 in the negative and consequently

dismissed the suit.

3.4. The plaintiff aggrieved by the judgment and decree

passed by the Trial Court, filed an appeal in R.A.No.26/2015.

The First Appellate Court framed the following points for

consideration:

1. Whether the judgment and decree dated 31.03.2015 passed by the I Additional Civil Judge, Kalaburagi in O.S.No.382/2010 is contrary to law, facts and evidence?

2. Whether the impugned judgment and decree call for the interference by this Court?

3. What order or decree?

3.5. The First Appellate Court, after re-appreciation of

the evidence on record, dismissed the appeal filed by the

plaintiff. Hence the plaintiff has filed the instant appeal.

4. Heard learned counsel for the plaintiff.

5. Learned counsel for the appellant submits that the

defendants are the tenants of suit schedule property and

plaintiff has issued notice terminating the tenancy of the

defendants. He further submits that the defendants have no

right to continue in possession of the suit property. He

submits that the plaintiff has produced records. The Trial

Court as well as the First Appellate Court have not properly

appreciated the documents produced by the plaintiff. He

submits that the courts below committed an error in passing

the impugned judgments and decrees. Hence he submits

that there is substantial question of law involved in this

appeal and prayed to allow the appeal.

6. Perused the records and considered the submissions

made by learned counsel for the appellant.

7. It is not in dispute that the suit property was owned

by the plaintiff. The plaintiff has executed a registered sale

deed in favour of the defendants dated 13.08.2008 and

delivered possession of suit property in favour of the

defendants and defendants have produced copy of original

sale deed marked at Ex.D1. From the perusal of the

contents of Ex.D1, the plaintiff has delivered the possession

of suit property in favour of the defendants. It is the case of

the plaintiff that the defendants got executed the registered

sale deed by using force and he has lodged a complaint

before the police. In order to show that the plaintiff has

lodged a complaint against the defendants, plaintiff has not

produced copy of the complaint. It is further contended that

the plaintiff has taken steps in a separate forum to get the

sale deed cancelled. But no records have been produced by

the plaintiff to prove the same. The plaintiff has failed to

prove that the defendants have got executed a sale deed by

playing fraud and coercion. If at all the defendants have got

executed a sale deed by playing fraud and coercion, the sale

deed was registered on 13.08.2008, till today the plaintiff

has not filed any suit for declaration and cancellation of sale

deed. If the conduct of plaintiff is taken into consideration,

it is crystal clear that the plaintiff has executed the sale deed

in favour of defendants by receiving consideration amount

and delivered possession of the suit property in favour of the

defendants. The Trial Court, after appreciating the oral and

documentary evidence on record, was of the opinion that the

plaintiff has not inducted the defendants as tenants and they

continue to be in possession of the suit house in that

capacity and further have recorded a finding that the plaintiff

has failed to prove the jural relationship of landlord and

tenants. Hence, the Trial Court was justified in dismissing

the appeal. The First Appellate Court, on re-appreciation of

the evidence, was justified in dismissing the appeal and

confirming the judgment and decree passed by the Trial

Court. I do not find any substantial question of law involved

in this case.

8. Accordingly, the appeal is dismissed.

SD/-

JUDGE

RD