Sri T V Radhakrishna vs Nanjangud Sri Raghavendraswamy ...
2022 Latest Caselaw 4016 Kant

                            1




  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 9TH DAY OF MARCH, 2022

                        BEFORE

           THE HON'BLE MR. JUSTICE R. NATARAJ

 REGULAR SECOND APPEAL NO.856 OF 2015 (POS)

BETWEEN:

SRI. T.V. RADHAKRISHNA
61 YEARS, S/O. LATE T.V. SUBBAIAH
RETD. BANK EMPLOYEE
R/O. PORTION OF NO.950, 2ND MAIN,
UPSTAIRS, LAKSHMIPURAM
MYSURU.                               ..... APPELLANT

(BY SMT. HARINI SHIVANANDA, ADV)

AND:

NANJANGUD SRI. RAGHAVENDRASWAMY MUTT,
REPRESENTED BY ITS PEETADHIPATI
SRI. SUSHEMTENDRA THEERTHARU
BY ITS G.P.A. HOLDER MANAGER,
SRI. SETHU MADHAVAN
BANGALORE-560 078.                .... RESPONDENT

( BY SRI. PHANIRAJ KASHYAP, ADV)

     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED 15.04.2015 PASSED IN R.A.NO.777/2009 ON THE FILE
OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE,
MYSORE, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 01.06.2005 PASSED IN
O.S.NO.1112/2002 ON THE FILE OF THE V ADDITIONAL CIVIL
JUDGE (JR.DN) MYSORE.
                                2




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

                      JUDGMENT

This appeal is filed by the defendant challenging the

concurrent findings of fact recorded by the V Addl. Civil

Judge (Jr.DN) at Mysore (henceforth referred to as the

Trial Court) in O.S.No. 1112/2002 which was confirmed by

the V Addl. District and Sessions Judge, at Mysore

(henceforth referred to as First Appellate Court) in

R.A.777/2009.

2. The parties shall henceforth be referred as

they were arrayed before the trial Court. The appellant

herein was the defendant and the respondent was the

plaintiff in O.S.1112/2002.

3. The suit in O.S.No.1112/2002 was filed for

recovery of arrears of rent and possession and for mense

profits. The plaintiff claimed that the suit property was

rented out to defendant on a monthly rent of Rs.300/-.

The plaintiff claimed to have purchased the suit property

from Datturao and family in terms of a sale deed dated

22.04.1964. The defendant fell in arrears of rent from

01.04.1997 which led to the plaintiff issuing a notice on

01.11.2002 calling upon the defendant to pay the arrears

of rent and vacate the premises which was replied by the

defendant evasively. Consequently the said suit was filed.

4. The suit was contested by the defendant, who

claimed that he was not a tenant under the plaintiff but

was a tenant under a person by name Datturao. He

further claimed that he had spent Rs.1,00,000/- for the

maintenance of the building and that he was in possession

of the suit property for more than 30 years and therefore,

he could not be evicted from the suit premises.

5. Based on the rival contentions, the Trial Court

framed the following issues:

1. Whether the plaintiff proves that the defendant is a tenant under it in respect of the schedule premises?

2. Whether the defendant proves that he is a tenant under one Dattu Rao?

3. Whether the plaintiff proves that the defendant has not paid rent from 01/04/1997?

4. Whether the plaintiff proves that the tenancy has been terminated by issuing quit notice as per Section 106 of T.P. Act?

5. Whether the plaintiff is entitled for a claim of Rs.10,800/- and possession of the schedule premises?

6. To what order or decree?

6. GPA holder of the plaintiff was examined as PW1

who marked documents as Exs.P.1 to P.5. The defendant

was examined as DW1 and a witness was examined as

DW2. Based on the oral and documentary evidence, the

Trial Court held that the plaintiff had proved his possession

and ownership over the suit property. It also held that the

plaintiff had terminated the tenancy of the defendant for

non-payment of rent. Therefore, directed the defendant to

pay a sum of Rs.4,500/- as arrears of rent, vacate and

hand-over vacant possession of the suit premises. Being

aggrieved against the aforesaid judgment, defendant

preferred R.A.777/2009.

7. During the pendency of the appeal, the

defendant filed an application under Order XLI Rule 27 of

the Code of Civil Procedure, 1908 ( hereinafter referred to

as 'CPC') to place on record an unregistered sale deed

executed by Datturao in favour of the defendant's father in

the year 1955. First Appellate Court after considering the

oral and documentary evidence, held that the plaintiff

proved his title to the property and that the defendant was

a tenant in the said property. It held that the defendant

failed to pay arrears of rent and claim of the defendant

that suit property was purchased by his father in the year

1955 was not sufficiently established. Since the

documents sought to be produced as additional evidence

was not registered in accordance with law, the First

Appellate Court rejected the application and also dismissed

the appeal.

8. Being aggrieved by the aforesaid judgment,

present appeal is filed by the defendant.

9. Learned counsel for the defendant submitted

that the First Appellate Court ought to have considered the

un-registered sale deed as a sale agreement for the

purpose of Section 53(A) of the Transfer of Property Act,

1882 and must have drawn an inference that the

defendant was in possession of the suit property in part-

performance of the agreement. She further submits that

the order passed by the First Appellate Court rejecting the

application was therefore, unjust. She further submitted

that the sale deed of the year 1955 was not in the custody

of the defendant and therefore, he had satisfied the

requirement under Order XLI Rule 27 of CPC.

10. Learned counsel for the appellant/respondent

submitted that it was not the case of the defendant that

the suit property was purchased by his father in the year

1995. Moreover the document allegedly executed by

Datturao in favour of father of the defendant was not

registered and therefore, it is in admissible in evidence and

even if the First Appellate Court had allowed the

application filed under XLI Rule 27 of CPC, no purpose

would be served.

11. I have considered the submissions made by

the learned counsel for the parties.

12. A perusal of the judgments of the trial Court

and the First Appellate Court discloses that the defendant

claimed that he was a tenant under Datturao and not

under the plaintiff. Ex.P.3 disclosed that Datturao had sold

the suit property to the plaintiff. The defendant claimed

that he had paid the rent but the plaintiff was not issuing

any receipts, thereby admitting the jural relationship. He

attempted to improve his case by claiming that Datturao

had executed an unregistered sale deed in favour of his

father in 1955. Once the defendant had admitted the

tenancy, he cannot retract and claim that his father was

placed in possession of the suit property in part

performance. The First Appellate Court and the Trial Court

have carefully considered the documents on record and

have held that the plaintiff is the owner of the property

and also held that defendant was inducted as a tenant in

the suit premises. Since, both the Courts have recorded

finding on a pure question of fact and no question of law

arises for consideration, this appeal is dismissed.

Nonetheless, the defendant is granted one year time to

quit and deliver the vacant possession of the suit premises

subject to the following conditions:-

1. The defendant shall file an affidavit within 10

days undertaking to quit and deliver the vacant

possession of the suit premises to the plaintiff

on or before 31.03.2023 without compelling

the plaintiff to seek execution of the decree.

2. The defendant shall pay monthly rent of

Rs.500/- for the period commencing from

March 2022 to March 2023.

3. He shall also undertake that he shall not sub-

let or under-let any portion of the suit property

to any person and maintain the suit property in

a good and tenantable condition.

Sd/-

JUDGE

hd/-