Ambutai Ramachandra Amate vs Sagar Subhash Dargashetti
2022 Latest Caselaw 3084 Kant

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             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

        DATED THIS THE 23RD DAY OF FEBRUARY, 2022

                          BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                R.S.A.NO. 100168 OF 2022

BETWEEN:

1. SMT.AMBUTAI
W/O RAMCHANDRA AMATE,
AGE: 67 YEARS, OCC: HOUSEHOLD WORK,
R/O 2846, JAIN GALLI, GOKAK-591307.

2. SHRI. SHANKAR,
S/O RAMCHANDRA AMATE,
AGE: 47 YEARS, OCC: BUSINESS,
R/O 2846, JAIN GALLI, GOKAK-591307.

3. SHRI. SACHIN
S/O RAMCHANDRA AMATE,
AGE: 44 YEARS, OCC: BUSINESS,
R/O 2846, JAIN GALLI, GOKAK-591307.

4. SMT.NAMRATA
D/O RAMCHANDRA AMATE
AFTER MARRIAGE SMT.NAMRATA
W/O GIRISH MUDHOLE,
AGE: 40 YEARS, OCC: HOUSEHOLD WORK,
R/O 1/346/E, DANDAPUR,
3RD GALLI, NARGUND-582207
DFIRST: GADAG.

5. SMT. SUSHMA
D/O RAMCHANDRA AMATE
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AFTER MARRIAGE SMT.SUSHMA
W/O MANJUNATH MUDHOLE,
AGE: 38 YEARS, OCC: HOUSEHOLD WORK,
R/O 1/346/D, DANDAPUR,
3RD GALLI, NARGUND-582207
DFIRST: GADAG.

                                              ...APPELLANTS

(BY SMT.P.G.NAIK, ADVOCATE)

AND:

SRI.SAGAR SUBHASH DARGASHETTI,
AGE: 42 YEARS, OCC: BUSINESS,
R/O JINAGAR GALLI, GOKAK-591307.

                                             ...RESPONDENT

       THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL
PROCEDURE PRAYING AGAINST THE JUDGMENT AND DECREE
DATED 20.02.2021 PASSED IN R.A.NO.77/2018 ON THE FILE OF
THE I ADDITIONAL SENIOR CIVIL JUDGE GOKAK, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED
01.12.2018, PASSED IN O.S.NO.368/2005 ON THE FILE OF THE
ADDITIONAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST
CLASS, GOKAK, DECREEING THE SUIT FILED FOR RECOVERY OF
POSSESSION.


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

The captioned second appeal is filed by unsuccessful

tenants-defendants questioning the concurrent judgments and

decrees of the Courts below in decreeing the suit filed by

respondent-plaintiff thereby directing the appellants-

defendants to handover vacant possession of the suit schedule

property.

2. For the sake of convenience, the parties are

referred to as per their rank before the trial Court.

3. The brief facts of the case are as under:

(a)The plaintiff filed the suit for recovery of possession of

suit schedule property. The plaintiff claims that suit schedule

property is a non-residential property bearing CTS.No.2554/B

measuring 19.23 sq.mtrs situated at Raviwar Peth, Gokak.

The plaintiff specifically contended that the suit schedule

property was leased to one Baburao Balakrishna Amate on a

rental basis of Rs.100/- by the grand father of plaintiff. The

plaintiff specifically contended that tenancy was on a monthly

basis and the same commenced on the first day of every

month. The plaintiff further contended that after death of

defendant's father, Ramachandra Amate, who is the husband

of first defendant inherited tenancy rights, who also died on

7.2.1997 leaving behind the present appellants-defendants.

The plaintiff is asserting right and title on the basis of the Will

bequeathed by his grand mother namely Chimabai

Dharagshetti. The plaintiff terminated tenancy by issuing

registered notice on 7.4.2005 and called upon the defendants

to vacate and deliver possession of suit schedule property as

on 1.6.2005. Plaintiff has filed the present suit as the

defendants failed to vacate the suit property.

(b)On receipt of summons, the defendants contested the

proceedings and stoutly denied the entire averments made in

the plaint. The defendants specifically disputed the title of the

plaintiff herein. The defendants also contended that the suit

schedule property measures less than 14 sq. mtrs. and

therefore, the plaintiff cannot seek eviction by invoking the

provisions of Transfer of Property Act. The defendants also

contended that there is no lawful termination of tenancy and

also claimed that the lease is a yearly lease and therefore,

disputed the quit notice.

(c)The Trial Court having assessed ocular and

documentary evidence held that plaintiff is the owner of the

suit schedule property and the same was leased by the grand

father in favour of Baburao Amte, who is the ancestor of

defendants herein. The Trial Court also recorded a categorical

finding that plaintiff has succeeded in proving that he is the

landlord and defendants are tenants of the suit schedule

property. While examining Issue No.4 the Trial Court has

recorded a categorical finding that plaintiff has succeeded in

proving that the tenancy is legally terminated by issuing a

notice. The contention of the appellants that the suit is bad

for non-joinder of necessary parties was negatived by the Trial

Court by answering issue No.6 in the negative. The Trial

Court placing reliance on the judgment rendered by the Apex

Court in Kantha Goel's case1 held that co-heir of the

deceased landlord can sue for eviction in absence of other co-

heirs, who have no objection. The contention of the

defendants that it is a yearly lease was also negatived by

recording a categorical finding that defendants have not

produced any cogent evidence to indicate that the lease was a

yearly lease and not monthly lease as claimed by plaintiff. The

Trial Court proceeded to decree the suit thereby directing the

present defendants to deliver vacant possession of the suit

property in favour of plaintiff.

(d)The defendants feeling aggrieved by the judgment

and decree of the Trial Court preferred an appeal before the

first Appellate Court in RA.77/2018.

(e)The Appellate Court having independently assessed

the ocular and documentary evidence has also come to the

conclusion that there is lawful termination of tenancy and

AIR 1977 SC 1599

therefore, plaintiff is entitled for possession of suit schedule

property. The Appellate Court has also taken judicial note of

admissions given by D.W.1 in cross-examination wherein he

has admitted that plaintiff has become owner of suit schedule

property on the basis of the Will vide Ex.P12. The Appellate

Court has infact extracted the relevant portion of cross-

examination indicating that defendants have admitted that

plaintiff is the owner of the suit schedule property. Therefore,

by applying Section 116 of the Indian Evidence Act, the

Appellate Court was of the view that defendants are estopped

from disputing the title of plaintiff. On these set of reasoning,

the Appellate Court has affirmed the findings and conclusions

arrived at by the Trial Court and has proceeded to dismiss the

appeal.

(f)It is against these concurrent judgments and decrees

of the Courts below, the unsuccessful tenants are before this

Court.

4. Heard the learned counsel for the defendants and

learned counsel for the plaintiff. Perused the judgments under

challenge.

5. The learned counsel appearing for the appellant

would vehemently argue before this Court that the Appellate

Court erred in not formulating appropriate points and

therefore, the judgment and decree and l Appellate Court does

not satisfy the mandatory requirements of Order 41 Rule 31 of

CPC and therefore, she would submit to this Court the

judgment of the Appellate Court suffers from serious material

irregularities and therefore, substantial question of law would

arise in the present case on hand.

6. Heard the learned counsel for the appellants-

defendants and perused the judgments under challenge.

7. On perusal of the judgment rendered by the

Appellate Court, this Court would find that the Appellate Court

has independently assessed the entire material on record. The

Appellate Court has dealt with all disputed questions of fact

and has independently come to the conclusion that the plaintiff

is entitled for delivery of possession of suit schedule property

and there is a valid termination of tenancy. On perusal of the

judgment of Appellate Court, this Court would also find that

the Appellate Court has infact taken pains to examine the

ocular evidence of the parties. The contention of the

defendants herein that plaintiff has no locus standi to seek

eviction of the defendants from the suit schedule property is

rightly negatived and while doing so, the Appellate Court has

dealt with the provisions of Section 106 of the TP Act and

Section 110 of Indian Evidence Act. Both the Courts have

concurrently held that plaintiff has succeeded in proving that

he is the owner of suit schedule property and the defendants

are the tenants under the plaintiff. Both the Courts have

concurrently held that the plaintiff has terminated the tenancy

of defendants by issuing quit notice. Both the Courts have

concurrently held that defendants cannot resist the suit on the

ground that the suit is bad for non-joinder of necessary

parties. Both the Courts have relied on the principles laid

down by the Apex Court in the case of Smt. Kantha

Goel(supra). Both the Courts have also negatived the

contention of the defendants that the suit schedule property

measures less than 14 sq. mtrs. Having negatived the said

contention, both the Courts have held that plaintiff was

justified in issuing the quit notice under Section 106 of the TP

Act. These concurrent findings recorded by the Courts below

are based on legal evidence led by the plaintiff and in the

absence of rebuttal evidence lead by the defendants herein, I

do not find any infirmities or illegalities in the judgments

under challenge. No substantial questions of law arises.

Accordingly, the second appeal is dismissed.

Sd/-

JUDGE

*alb/-