Karnataka High Court
Sri. Jithendra P Khataria vs Sri. Javerilal on 15 March, 2022
Bench: R. Nataraj
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
REGULAR SECOND APPEAL No.1668 OF 2011 (POS)
BETWEEN:
SRI. JITHENDRA P. KHATARIA,
S/O PRAKASH KUMAR KHATARIA,
MAJOR,
M/S CHANDRABHAN JEWELLERS,
MAIN ROAD, BELUR TOWN,
HASSAN DISTRICT - 573 115.
... APPELLANT
(BY SRI.P.D.SURANA, ADVOCATE)
AND:
1. SRI. JAVERILAL,
S/O MANGILAL,
2. SRI. VIJIYAKUMAR,
S/O MANGILAL,
MAJOR,
PROP. M/S MAHALAKSHMI JEWELLERS AND
CLOTH MERCHANTS,
MAIN ROAD,BELUR TOWN,
HASSAN DISTRICT - 573 115.
3. SRI. HULIRAJ @ SHASHIKUMAR,
S/O PUTTACHAR,
MAJOR,
PROP: M/S CHAMUNDI JEWELLER WORKS
MAIN ROAD, BELUR TOWN,
HASSAN DISTRICT - 573 115.
... RESPONDENTS
(BY SRI.JWALA KUMAR, ADVOCATE FOR R1 AND R2;
R3 SERVED)
*****
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE
-2-
JUDGMENT AND DECREE DATED 9.2.2011 PASSED IN
R.A.NO.114/2008 ON THE FILE OF THE SENIOR CIVIL
JUDGE, BELUR, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 30.6.2008 PASSED IN
O.S.NO.36/2003 ON THE FILE OF THE CIVIL JUDGE (JR.DN)
& JMFC., BELUR.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the unsuccessful plaintiff
challenging the concurrent finding of both the Courts
that he is not entitled to recover possession of the suit
premises from the respondents, as he failed to prove
the relationship of land-lord and tenant.
2. The parties shall henceforth be referred as
they were arrayed before the Trial Court.
3. O.S.No.36/2003 was filed for recovery of
possession of the suit schedule property and for
recovery of mesne profits. The plaintiff claimed that he
purchased the suit property in terms of two sale deeds
dated 01.12.1997 from the sons of Jwalanaiah who had
purchased the same from Teekchand and Mangilal on
25.04.1965. He claimed that Mangilal had continued in
possession of the property as a tenant under Jwalanaiah
and later, continued as a tenant under the plaintiff.
However, the defendants refused to acknowledge the
plaintiff as land-lord and refused to pay rents, which
compelled the plaintiff to file suit for recovery of
possession.
4. The suit was resisted by defendants No.1 to
3 who claimed that the sale deed executed by their
father Mangilal on 25.04.1965 was nominal and was
made to secure repayment of a hand loan. They
claimed that it was due to this reason, possession of the
suit property was not delivered and Mangilal continued
to be in possession and after his death, the defendants
continued to be in possession. Therefore, they
contended that there was no relationship of land-lord
and tenant between the plaintiff, and his predecessor as
well as the defendants. The suit was set down for trial.
5. Based on the oral and documentary
evidence, the trial Court negatived the issues "Whether
the plaintiff was the owner of the suit property and also
whether the plaintiff proves the relationship of land-lord
and tenant between the plaintiff and defendants?".
Consequently, the trial Court dismissed the suit.
Aggrieved by the said judgment and decree, the plaintiff
filed R.A.No.114/2008 which was also dismissed.
6. Being aggrieved by the aforesaid judgments
and decrees, the present Regular Second Appeal is filed.
7. Along with the appeal, an application is filed
under Order 41 Rule 27 of CPC to place on record the
pleadings and evidence initiated by Jwalanaiah against
Mangilal for eviction from the suit property in H.R.C.
No.97/1985. It is pleaded in the affidavit accompanying
the application that the plaintiff had purchased the suit
property on 01.12.1997 and was therefore, not privy to
the proceedings in H.R.C. No.97/1985. It is stated that
in the said proceedings, Mangilal, the predecessor of
defendants No.1 and 2 had admitted the tenancy. Later,
another application is filed in I.A.No.1/2022 for
production of additional documents. It is stated in the
affidavit accompanying I.A.No.1/2022 that a copy of the
partition deed entered into between Jwalanaiah and his
brother was marked as Ex.P.2. However, the trial Court
noticed that the said document was not complete as one
of the document was missing. The appellant has
therefore furnished the complete document of Ex.P.2
and submits that this document may be perused by this
Court while disposing of the appeal.
8. Learned counsel for the appellant submits
that if the applications filed by the appellant is
considered, then, it invariably leads to the conclusion
that defendants No.1 and 2 are the tenants in the suit
property and therefore, an opportunity be granted to
place on record these documents.
9. Per contra, learned counsel for the
respondents opposes the production of additional
documentary evidence at this stage and contends that
the appellant has not given any cogent reason to accept
the additional documents at this stage. He contend that
the plaint disclosed the proceedings initiated by
Jwalanaiah against Mangilal in HRC No.97/1985 and
therefore the plaintiff cannot claim that he was not
aware of the proceedings.
10. The endeavor of any judicial process is to
find out the truth and to provide justice to the parties.
The provisions under Order 41 Rule 27 of CPC is
precisely meant to do this. The plaintiff claimed that he
was not properly led by the counsel, who did not peruse
the record in HRC No.97/1985. He claimed that he was
a businessman who was always on tour and could not
arrange for obtaining copies of the proceedings in HRC
No.97/1985.
11. In that view of the matter, it is imminent
that the plaintiff is given an opportunity to place these
additional documents before the First Appellate Court.
The First Appellate Court may consider whether these
documents are relevant and necessary and whether the
plaintiff has passed the test prescribed under Order 41
Rule 27 of CPC. If yes, then to proceed in accordance
with the Order 41 Rule 28 of CPC.
12. Hence, the following
ORDER
The impugned judgment and decree passed by
the First Appellate Court in R.A.No.114/2008 on the file
of the Senior Civil Judge, Belur is set aside. The appeal
is remitted back to the Senior Civil Judge, Belur who
shall consider whether the plaintiff is entitled to place on
record the additional documentary evidence and if yes,
to proceed with the appeal in accordance with law and
pass appropriate orders.
In order to enable the First Appellate Court to
expeditiously dispose off the appeal, parties are directed
to appear before the First Appellate Court on
20.04.2022.
Office is directed to forthwith return the Trial
Court records to the First Appellate Court.
Sd/-
JUDGE
PN
