Karnataka High Court
Sohail vs Farhat Sultana on 24 June, 2022
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
RSA No.200046/2021
BETWEEN:
SOHAIL S/O. MD. ABDUL AZIZ,
AGED: 49 YEARS,
OCC: THE PRESIDENT OF ALL INDIA,
MUSLIM EDUCATION SOCIETY'S
PRE UNIVERSITY AND DEGREE COLLEGE
FOR ARTS AND SCIENCE AND COMMERCE, BIDAR.
BUT HE IS THE PRESIDENT OF
GAWAN EDUCATION TRUST,
BIDAR HAS GOT TRANSFERRED THE
MANAGEMENT, SUPERVISION ASSETS AND
LIABILITIES FROM AIMES.
... APPELLANT
(BY SRI. ANANTH S.JAHAGIRDAR, ADVOCATE FOR
SRI. GANESH S.KALBURGI, ADVOCATE)
AND:
FARHAT SULTANA
W/O MOHAMMED AHMED ALI,
AGE: 48 YEARS, OCC: HOUSEHOLD,
R/O: MANIYAR TALEEM,
BIDAR-585401.
... RESPONDENT
(BY SRI. KRUPA SAGAR PATIL, ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, PRAYING TO ALLOW THIS APPEAL AND
2
TO SET ASIDE THE JUDGMENT AND DECREE DATED
15.09.2020 PASSED IN R.A.NO.42/2019 ON THE FILE OF THE
ADDITIONAL SENIOR CIVIL JUDGE, BIDAR, CONFIRMING THE
JUDGMENT AND DECREE DATED 28.08.2019 PASSED IN
O.S.NO.258/2015 ON THE FILE OF II ADDL. CIVIL JUDGE AND
JMFC II AT BIDAR AND TO PASS ANY OTHER ORDER AS THIS
HON'BLE COURT DEEMS NECESSARY, IN THE
CIRCUMSTANCES OF THE CASE.
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This second appeal is filed by the defendant against the
concurrent findings in O.S. No.258/2015 on the file of the II
Additional Civil Judge and JMFC-II, Bidar and in RA
No.42/2019 on the file of the Additional Senior Civil Judge,
Bidar.
2. For the sake of convenience, the parties herein
are referred as per the ranks occupied by them before the trial
Court.
3. The brief factual matrix leading to the case is that,
the plaintiff has filed a suit for eviction against the defendant
from suit premises and also sought for recovery of rent and
damages. The suit was decreed by the trial Court vide
judgment and decree dated 28.08.2019 with a direction to
hand-over the vacant possession of the suit premises to the
plaintiff within three months.
4. The said order was challenged by the defendant in
RA No.42/2019 before the learned Senior Civil Judge, Bidar
and the learned Senior Civil Judge, vide judgment and order
dated 15.09.2020, dismissed the appeal by confirming the
judgment and decree of the trial Court.
5. Being aggrieved by the concurrent findings of the
Courts below, this appeal came to be filed by the defendant.
6. This Court while admitting the case on
22.03.2021, has framed the following substantial questions of
law for consideration:-
i) Whether, under the facts and circumstances
involved into the case, both the courts below are
justified in making observation that there was oral
lease agreement between the appellant and the
respondent only on assumption basis?
ii) Whether, under the facts and circumstances
involved into the case, both the courts below are
justified in decreeing the suit directing the
appellant/respondent evicting the appellant
without considering the aspect of bona fide
requirement of suit premises?
7. Heard the arguments of the learned counsels on
both sides and perused the records.
8. The evidence on record clearly discloses that the
plaintiff is the owner of the suit premises. Further, the
evidence on record establish that the plaintiff has purchased
the suit premises from its earlier owner. The defendant was a
tenant under earlier owner and initially he has disputed the
tenancy under plaintiff. However, during the course of trial,
the defendant has admitted that the plaintiff is the land-lord of
the suit premises and he also paid rents to the plaintiff
regularly. Hence, the relationship between the parties
regarding land-lord and tenant is admitted.
9. The plaintiff has admittedly filed a suit for eviction.
The plaintiff has also produced the records to show that he
has purchased the suit schedule property from the erstwhile
owner. The name of he plaintiff is mutated in respect of the
suit schedule property. Apart from that, Ex.P6 clearly establish
that the plaintiff has issued legal notice to the defendant as
contemplated under Sections 106 of the Transfer of Property
Act, 1882 ('T.P. Act' for short). The said notice is issued
through Registered Post, which is evident from Ex.P7 and from
Ex.P8, it is evident that the notice has been served on the
defendant on 03.11.2015. The suit came to be filed on
26.11.2015 after 15 days. The statutory requirement as
contemplated under the T.P. Act has been complied. Ex.P9
is the sale deed executed in favour of the plaintiff. The
records further disclose that the defendant has moved to
new premises and he is using the disputed premises for
dumping materials. Now, it is submitted that the defendant
has commenced I.T.I. in the new premises. Hence, learned
counsel for appellant/defendant seeks time to vacate the suit
premises till completion of academic year. It is to be noted
here that the defendant was earlier running a school in the
suit premises and he has subsequently shifted the same to a
new establishment. He suffered eviction decree before the
trial Court and before the First Appellate Court also. In spite
of that, without vacating the suit premises, he has started the
a new I.T.I in the suit premises. Hence, the intention of
defendant is manifest from his conduct only. Though initially
he has kept vacant the suit premises, he did not choose to
hand-over possession of the same. The conduct of defendant
does not entitle him of any discretionary or equitable relief of
time for vacating.
10. The substantial questions of law framed by this
Court regarding bona fide requirement of suit premises, is not
a criteria, when the suit filed under Section 106 of the T.P.Act.
The plaintiff is not required to prove bona fide requirement,
though it is pleaded. Further, this aspect has been covered
by the decision of this Court reported in 1996(3) Kar.L.J
338 [Shantaveerappa Puttappa Chaushetti Vs.
Gangaram Hemajeppa Kalal (since deceased) by LRs.
And others]. Hence, though the substantial question of law
is framed regarding bona fide requirement, considering the
nature of the proceedings, the bona fide requirement does not
have any relevancy in the instant case. Hence, the second
substantial question of law is answered in the affirmative
holding that both the courts below are justified in decreeing
the suit without considering the aspect of bona fide
requirement.
11. As regards the substantial question of law in
respect of oral tenancy, admittedly the plaintiff is the owner of
the schedule premises and the defendant was lessee under
earlier owner and subsequently he had paid rent to the
plaintiff and admitted relationship. Under such circumstances,
question of determining oral lease does not arise at all and
even otherwise, the defendant will become only a tenant
holding over and his status does not give him any other
benefits. Under these circumstances, the first substantial
question of law is also answered in favour of the plaintiff in the
affirmative holding that both the courts below are justified in
making an observation that there was an oral tenancy.
12. Considering these aspects, the appeal does not
survive for consideration and needs to be rejected.
Accordingly, I proceed to pass the following:-
ORDER
The appeal is dismissed with costs
throughout by confirming the judgment and decree
dated 28.08.2019 passed by the II Additional Civil
Judge & JMFC-II, Bidar in O.S. No.258/2015 and
also the judgment and decree dated 15.09.2020
passed by Additional Senior Civil Judge, Bidar in RA
No.42/2019.
However, the appellant/defendant is granted
30 days time from today to vacate and hand over
the vacant possession of the suit premises to the
respondent/plaintiff, failing which the
respondent/plaintiff is at liberty to execute the
decree in accordance with law.
In view of dismissal of this appeal, IA No.1/2022 filed
for Vacating Stay, does not survive for consideration. Hence,
the said application also stands dismissed.
Sd/-
JUDGE
KGR*
