Karnataka High Court
Sri M. Anjinappa vs Sri K V Rudraradhya on 11 January, 2023
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A.NO.102/2021 (POS)
BETWEEN:
SRI M. ANJINAPPA
SINCE DEAD BY HIS LRs
1. SMT. PARIJATHA
W/O. S. NARAYANA
AGED ABOUT 53 YEARS,
R/AT NO.6, 34TH CROSS
2ND BLOCK, RAJAJINAGAR
BENGALURU - 560 010.
2. SMT. ARUNA A.,
D/O. LATE ANJINAPPA
AGED ABOUT 48 YEARS,
3. SRI SRINIVAS
S/O. LATE ANJINAPPA
AGED ABOUT 45 YEARS,
4. SRI RAJAGOPAL
S/O. LATE ANJINAPPA
AGED ABOUT 43 YEARS,
2 TO 4 ARE RESIDENTS OF
NO.616, 3RD MAIN ROAD
NEAR POLICE STATION ROAD,
HEBBAL, BENGALURU - 560 024. ... APPELLANTS
[BY SRI G.S.VENKAT SUBBA RAO, ADVOCATE]
2
AND:
SRI K.V. RUDRARADHYA
S/O. LATE VEERABHADRAIAH,
AGED ABOUT 85 YEARS,
R/AT NO.60, M.R.GARDEN
OPP: TO KEB LAYOUT,
SANJAYANAGAR
BENGALURU - 560 094. ... RESPONDENT
THIS R.S.A IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT AND DECREE DATED 08.07.2020
PASSED IN RA.NO.10093/2019 (OLD NO.3/2019) ON THE FILE
OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE,
DODDABALLAPURA, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 30.01.2019 PASSED IN
O.S.NO.217/2009 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
AND JMFC, DODDABALLAPURA.
THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission today. Heard the
learned counsel for the appellants.
2. This appeal is filed challenging the judgment and
decree dated 08.07.2020 passed in R.A.No.10093/2019 (Old
No.3/2019) on the file of the IV Additional District and Sessions
Judge, Doddaballapura.
3. The factual matrix of the case of the plaintiff before
the Trial Court is that he is the absolute owner of the stone slabs
roof house property and vacant site bearing Kaneshumari
No.179 and property No.148, measuring East-West - 70 feet
and North-South - 40 feet situated at Konaghatta Village,
Kasaba Hobli, Doddaballapura Taluk. The khatha of the suit
schedule property stands in the name of the plaintiff and he is
paying tax over the suit schedule property. It is also the case of
the plaintiff that he has constructed a stone slabs roof house
measuring 20 x 30 feet on the western portion of the suit
schedule property and he was living in the said house along with
his family members. The suit schedule property is his ancestral
property succeeded from his ancestors. It is his further case
that on 04.01.2009, the defendant requested the plaintiff to
accommodate in the schedule house for a period of three months
as his brother-in-law who was the owner of the house occupied
by the defendant has insisted him to vacate the same and to
deliver the possession of the said property. It is also the case of
the plaintiff that the defendant was living in the house which
belongs to his brother-in-law by name Patalappa. There was
tussle in respect of the said property between the defendant and
his brother-in-law. The defendant to avoid the scuffle and the
unnecessary untoward incidents between him and his brother-in-
law, requested the plaintiff to accommodate in the schedule
house for a period of three months. The plaintiff believing the
words of defendant allowed him to occupy the suit schedule
property on 04.01.2009. The defendant assured the plaintiff
that he will make arrangements for his residence within three
months and he will vacate the suit schedule property and
handover the possession of the suit schedule property to the
plaintiff. The plaintiff accepted the request of the defendant.
Though the plaintiff allowed the defendant to occupy the suit
property for three months, but no rent was fixed on the suit
schedule property as the plaintiff allowed the defendant to
occupy the suit property on the humanitarian grounds. The
defendant is in permissive possession of the suit schedule
property. It is his further case that owing to the personal
problems of the defendant with his brother-in-law and to avoid
the untoward incidents between them, he was forced to
accommodate the defendant in the schedule premises. The
defendant has misused the timely help extended by him on the
humanitarian grounds and he is squatting on the schedule
property illegally. During the month of March, 2009, the
plaintiff insisted and demanded the defendant to vacate and
handover the vacant possession of the suit property. But, the
defendant declined to vacate the schedule premises. Thereafter,
the plaintiff convened a panchayath on 20.06.2009 comprising
the elders of the village and the panchayathdars have advised
the defendant to vacate the schedule premises and handover the
same to the plaintiff. But, the defendant has not complied the
advise of the elders. The defendant intentionally and
deliberately not delivered the possession of the schedule
premises. Hence, he has issued the legal notice on 27.06.2009
calling upon the defendant to quit and deliver the vacant
possession of the schedule premises. But the defendant
strangely given untenable reply and innovated a fake story
alleging that there was an agreement of sale in respect of the
suit schedule property between the plaintiff and his son-in-law,
S.Narayana on 19.02.2004. The defendant has created the fake
agreement of sale by forging the signatures of plaintiff to knock
off the suit schedule property. The defendant and his son-in-law
are in hand in glove to knock off the suit schedule property.
Hence, without any other alternative, he has approached the
Court by filing the suit.
4. In pursuance of the suit summons, the defendant
appeared through counsel and filed the written statement
contending that he is unaware of the fact that the plaintiff is the
absolute owner of the stone slabs roof house property and
vacant site and denied the entire averments made in the plaint
and also denied the averments of the plaintiff that the defendant
requested the plaintiff to accommodate in the suit schedule
property for a period of 3 months and accommodating in the suit
schedule property is also denied and denied all other averments
made in the plaint but it is admitted the issuance of legal notice
to him and also reply was given to the said notice. It is the
contention of the defendant that Narayana has agreed to
purchase the property from the plaintiff with an intention to
accommodate the defendant but further there was an
negotiation for the sale of the suit schedule property and total
sale consideration of Rs.1,80,000/- was fixed as a value for the
premises and on 19.02.2004, the plaintiff received an amount of
Rs.1,75,000/- from the said Narayana by way of cash and
further agreed to receive the balance sale consideration amount
of Rs.5,000/- at the time of registration of the sale deed. But no
time was stipulated for completion of the said transaction and
after payment of the advance sale consideration amount, the
plaintiff put the said Narayana into the possession of the suit
schedule property and the defendant immediately permitted to
his father-in-law of the defendant to reside in the said property
since then the defendant is in possession of the suit schedule
property.
5. Based on the pleadings, the Trial Court has framed
the Issue Nos.1 and 2 and also an additional issue. The plaintiff
in order to substantiate his case, he examined himself as PW1
and also examined three witnesses as PW2 to PW4 and got
marked the documents at Ex.P1 to P7. On the other hand,
defendant also examined himself as DW1 and got marked the
documents at Ex.D1 to D17. The Trial Court after considering
both the oral and documentary evidence allowed the suit and
directed the defendant to hand over the vacant possession of the
suit schedule property within three months failing which, the
plaintiff is at liberty to take necessary steps.
6. Being aggrieved by the judgment of the Trial Court,
an appeal was filed before the First Appellate Court and the First
Appellate Court also considering both the oral and documentary
evidence formulated the point for consideration that whether the
Trial Court has committed an error in decreeing the suit and
directing the defendant to hand over the vacant possession and
on re-appreciation of both oral and documentary evidence, the
First Appellate Court confirmed the judgment of the Trial Court
hence, the present appeal is filed.
7. The learned counsel appearing for the appellants
would vehemently contend that both the Courts have not
considered the defence which had been taken by the defendant
in a proper perspective and the counsel also would contend that
the Trial Court was not framed the proper issues with regard to
the licence and its termination and non-framing of any issue with
regard to the nature of the possession held by the defendant in
view of the specific plea put forth by the defendant that he is in
possession of the property by virtue of the agreement of sale in
favour of his son-in-law is a substantive question of law and the
same ought to have been framed and the First Appellate Court
also not considered the said aspect while confirming the
judgment of the Trial Court and finding of both the Courts is
erroneous hence, it requires interference.
8. Having heard the learned counsel appearing for the
appellants and also on perusal of the material available on
record and reasoning given by the Trial Court it discloses that it
is the case of the plaintiff that the defendant was not having any
accommodation in view of the dispute between the defendant
and his brother-in-law and hence, he was requested the plaintiff
to accommodate him and he has been put in permissive
possession without any rent and accommodation is also given for
a period of three months and the defendant though occupied the
house, he has not made any other alternative arrangements and
inspite of panchayat was held, he did not heed to the advise of
the panchayatdars and apart from that he set up the defence
that there was an agreement between the plaintiff and son-in-
law of the defendant. No doubt, no issue was framed with
regard to the defence which had been taken by the defendant
but it has to be noted that when the plaintiff has categorically
pleaded that the defendant is in permissive possession, the Trial
Court extracted the admission given by DW1 in his cross-
examination in paragraph 18. The relevant portion of the cross-
examination of DW1 is extracted wherein he has admitted that
the property belongs to the plaintiff and there was a partition
between the brothers and also admitted that the house belongs
to the family of the plaintiff and also admitted that he came to
the suit schedule property 10 years ago and also admits that one
Patalappa was his brother-in-law and he was residing in the
house of brother-in-law-Patalappa and both of them quarreled
each other and brother-in-law made him to vacate the premises
hence, he came and started residing in the house of the plaintiff
and also admits that he came to the house of the plaintiff on
04.01.2009 and also he admits that before occupying the said
house, the plaintiff was residing in the said house and he was
not having any alternative house when his brother-in-law asked
him to vacate the house. He came and started residing in the
suit premises. He also categorically admits that there is no any
rental agreement between him and the plaintiff but he
volunteers that there was a rental agreement between his son-
in-law and the plaintiff. Again he says that on what date
agreement was entered between his son-in-law and the plaintiff
is not known. He also admits that when his brother-in-law asked
him to vacate the house, he was in trouble and however
admitted that he came and told the same to the plaintiff. These
are the admissions elicited from the mouth of DW1 which
corroborates the very pleadings of the plaintiff that the
defendant was not having any house, at that juncture he came
and occupied the house of the plaintiff and this admission takes
away the defence of the defendant.
9. It is also pertinent to note that though it is
contended that there was an agreement of sale between his son-
in-law and the plaintiff, same is also not produced before the
Court and except producing the documents of tax paid receipt,
electricity bill and receipts, no document is placed before the
Court on behalf of him. When there is a categorical admission
on the part of DW1, under which circumstances, he has occupied
the house, same corroborates the case of the plaintiff. The very
contention of the counsel appearing for the appellants that no
proper issue was framed, cannot be accepted when the parties
are understood the case and participated in the trial and
adduced evidence and even non-framing of an issue will not take
way the case of the plaintiff.
10. The First Appellate Court also considering the
material on record and also the grounds urged by the appellants,
formulated the point that whether the impugned judgment dated
30.01.2019 in O.S.No.217/2009 is opposed to law and facts and
having considered the point for consideration in detail discussed
and taken note of the principles laid down in the judgment which
have been relied upon and also taken note of the evidence
adduced by PW1 to PW4 as well as the evidence of DW1 and
admission elicited from the mouth of DW1 and given anxious
consideration to the very pleadings of the plaintiff and also the
answer elicited from the mouth of DW1 and given the reasons
while dismissing the appeal. Hence, I do not find any error
committed by the First Appellate Court as well as Trial Court in
giving such a finding. When there is a clear admission on the
part of DW1 that under which circumstances, he enters into the
house of the plaintiff and he categorically admits that when his
brother-in-law asked him to vacate the house, he came and
requested the plaintiff and also admitted that on 04.01.2009, he
came and occupied the house of the plaintiff and that is also the
case of the plaintiff that he occupied the house on 04.01.2009
and Trial Court also extracted the admission in paragraph 18 and
First Appellate Court also given anxious consideration to the
material on record particularly in paragraphs 12 to 14 taken note
of the defence of the defendant that there was a sale agreement
but same has not been produced and to that effect also, in
paragraph 14, discussed the same and also taken note of the
admission of DW1 in paragraph 15 and reasoned order has been
passed. When such being the case, I do not find any perversity
in the finding of the Trial Court as well as the First Appellate
Court and also there are not grounds to frame any substantive
question of law before this Court as contended by the appellants
and not made out any grounds to invoke Section 100 of CPC to
admit the appeal and to frame a substantive question of law.
11. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
In view of dismissal of the main appeal, I.A. if
any, does not survive for consideration and
the same stands disposed of.
Sd/-
JUDGE
ST
