Mahantheshappa M vs Smt Parvathi Ramakrishna
2022 Latest Caselaw 1501 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 2ND DAY OF FEBRUARY, 2022

                         BEFORE

       THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

               R.S.A. No.978/2021 (EJE)

BETWEEN:

1.     MAHANTHESHAPPA M,
       S/O LATE MUDDUVEERAPPA,
       NOW AGED ABOUT 60 YEARS,
       NO.2291, 3RD CROSS,
       VIJAYANAGARA, 2ND STAGE,
       MYSURU - 570 017.

2.     VEERAPPA M.,
       S/O LTE MUDDUVEERAPPA,
       C/O JAYAPPA, POST MASTER,
       NOW AGED ABOUT 65 YEARS,
       R/O CHANDANA NILAYA, 8 TH CROSS,
       IUDP LAYOUT,
       CHITRADURGA - 577 501.
                                          ... APPELLANTS
(BY SRI.DR.J.S.HALASHETTI, ADV.)

AND:

SMT. PARVATHI RAMAKRISHNA,
NOW AGED ABOUT 61 YEARS,
NO.4577, R.K.CORNER,
HARIHARA HAKKABUKKA, DOUBLE ROAD,
VIJAYANAGARA, 2ND STAGE,
DEVARAJA MOHALLA,
MYSURU - 570 001.
                                          ... RESPONDENT
(BY SRI.JAGADISH, ADV. FOR
    SRI.ABHISHEK M.R., ADV. C/R)
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     THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 08.09.2021
PASSED IN RA.NO.220/2020 ON THE FILE OF THE I
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AN DECREE DATED 14.10.2018 PASSED IN OS.NO.626/2014
ON THE FILE OF THE IV ADDITIONAL 1 ST CIVIL JUDGE AND
JMFC, MYSURU.

     THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

This is an appeal by the defendants who has

suffered a decree of eviction and it has been confirmed

by the appellate court.

2. The respondent/plaintiff filed a suit seeking

for vacant possession of the premises and for monthly

damages of Rs.17,000/- contending that the suit

property belongs to her and she had leased the property

to Smt Kenchamma under a lease agreement dated

06.03.2013 which was for a period of 11 months. It was

stated that under the lease agreement, monthly rent had

been fixed at Rs.8,500/- and a sum of Rs.5,00,000/-

would be paid as advance, which should be refunded at

the time of vacating the said premises. It was stated

that the term of the lease was for a period of 11 months

and on the expiry of the lease, since the plaintiff was not

interested in extending the lease, she caused the

issuance of quit notice dated 17.04.2014 calling upon the

defendant to handover possession. It was stated that

despite service of notice, neither a reply was given nor

was vacant possession handed over and hence, the suit

was filed.

3. The original defendant entered appearance.

She filed a written statement and when the matter was

posted for plaintiff's evidence, it was reported that she

had passed away and an application was filed to bring

her legal representatives on record. The legal

representatives who came on record filed a written

statement, in which, they basically denied every plaint

averments. They did not state as to in what manner

they were entitled to be in possession.

4. The Trial Court on considering the evidence

came to the conclusion that the plaintiff had proved that

she was entitled for vacant possession and accordingly,

decreed the suit. The Trial Court also awarded damages

in sum of Rs.10,000/- per month from the date of filing

of the suit till the date of handing over possession. The

Trial Court also permitted the said sum to be deducted

from the advance sum of Rs.5,00,000/-.

5. Being aggrieved, defendants preferred an

appeal. The Appellate Court in its judgment, though

held that the lease agreement could not be relied upon

since it was a xerox copy, nevertheless, proceeded to

confirm the findings of the Trial Court since on the

ground that the defendants had not stated their right to

be in possession of the suit property. The Appellate

court however did come to the conclusion that the

defendants were in possession of the suit premises as

tenants and the plaintiff was entitled for possession of

the suit property. Thus, notwithstanding the fact that

Ex.P.10 - the xerox copy of the lease agreement had

been permitted to be marked in evidence, the Appellate

court has recorded a clear finding that the defendants

were in possession of the suit premises as tenants.

6. The Appellate court having come to the

conclusion that the defendants were tenants and there

was a valid termination, proceeded to confirm the decree

and it has accordingly dismissed the appeal of the

defendants.

7. As against this concurring set of judgments, this

present second appeal has been preferred.

8. Learned counsel for the appellants contended

that as a matter of fact, the suit property belongs to the

wife of the 1st appellant Smt. Manjula and she had filed

a suit in O.S.610/2019 seeking for relief of declaration

and mandatory injunction and the said Smt.Manjula had

in fact made an application to implead herself in the suit

but the same had been rejected. He submitted that in

view of the fact that the suit filed by his wife was

pending consideration, it would be just and necessary to

permit the appellants to continue in possession till the

disposal of the said suit. He also contended that the

Appellate court was not justified in confirming the decree

of possession after it found that Ex.P.10 had been

wrongly permitted to be marked in evidence.

9. I have heard the learned counsel and also

perused the material on record.

10. Admittedly, the plaintiff in the plaint had

specifically pleaded that there was a lease agreement

dated 06.03.2013 executed in favour of Smt

Kenchamma - the original defendant. It was also

pleaded specifically that a quit notice had been issued

dated 17.04.2014 to Smt Kenchamma and despite

service of notice, no reply had been issued by

Smt.Kenchamma.

11. It is not in dispute that Smt.Kenchamma

during her life time did not file any written statement

denying these specific assertions of the plaint. The

appellants, who came on record as legal representatives,

however, have filed the written statement. It is settled

law that the persons who are permitted to come on

record as legal representatives of deceased party, can

only take a defence, which is only appropriate to the

character of legal representatives and it would not be

open for them to establish an independent plea in a suit

in which they are brought on record as legal

representatives.

12. Notwithstanding the above position of law, the

defendants did not even state as to under what right

they could continue in possession. Admittedly, they did

not dispute the title of the plaintiff. If the title of the

plaintiff was not disputed and no right was pleaded or

established to indicate their justification to be in

possession, obviously in a suit for ejectment, they

cannot succeed.

13. Both the Courts have concurrently recorded a

finding of fact that the plaintiff has established that the

defendants were tenants of the suit schedule property.

This finding, is essentially, a finding of fact, and such a

finding is not amenable to a scrutiny in exercise of

jurisdiction of this Court under Section 100 of Code of

Civil Procedure.

14. In view of the concurrent finding of fact that

the defendants are tenants and the tenancy was

determined, there is absolutely no substantial question

of law arising for consideration in this second appeal.

Consequently, the second appeal is dismissed.

Sd/-

JUDGE

BRN