Karnataka High Court
Sri Ningappa vs H Hanumanthu on 27 November, 2023
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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RSA No. 453 of 2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO.453 OF 2010 (RES)
BETWEEN:
SRI. NINGAPPA
S/O.LATE CHIKKANINGEGOWDA,
AGED ABOUT 64 YEARS,
R/O.D NO.2713, 2ND CROSS,
K.G.KOPPAL, MYSORE - 580 035.
...APPELLANT
(BY SRI.SYED AKBAR PASHA., ADVOCATE FOR
SRI.MAHANTESH S.HOSMATH., ADVOCATE)
AND:
1. H.HANUMANTHU
S/O.LATE HANUMAIAH,
AGED ABOUT 63 YEARS,
R/O.D NO.2/1, 1ST MAIN, 8TH CROSS,
KAMAKSHI HOSPITAL ROAD,
Digitally signed by SARASWATHIPURAM, MYSORE.
THEJASKUMAR N
Location: HIGH
COURT OF 2. H.M.HANUMANTHU
KARNATAKA
S/O.LATE MUDAPPA,
AGED ABOUT 30 YEARS,
CARRYING BUSINESS AS ARRACK
VENDOR AT SHOP NO.222,
SITUATED AT NIMISHAMBA EXTENSION,
DATTAGALLI, KUVEMPUNAGAR,
MYSORE - 580 035.
...RESPONDENTS
(BY SRI. PRASANNA DESHPANDE., ADVOCATE [ABSENT])
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RSA No. 453 of 2010
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CPC., SEEKING CERTAIN RELIEFS.
THIS REGULAR SECOND APPEAL IS COMING ON FOR
FINAL HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Sri.Syed Akbar Pasha., learned counsel on behalf of
Sri.Mahantesh S.Hosmath., for the appellant has appeared in
person.
2. When the matter is called, there is no
representation on behalf of the respondents, either personally
or through video conferencing.
As could be seen from the daily order sheet, the appeal
was listed on 09.11.2023. On that day, learned counsel for the
appellant was present, there was no representation on behalf of
respondents. Hence, the appeal was ordered to be listed on
24.11.2023. The appeal was listed on 24.11.2023. On that day
also, learned counsel for the appellant was present, there was
no representation on behalf of respondents. This Court heard,
the learned counsel for the appellant and the appeal was
ordered to be listed on 27.11.2023 at 2:30 pm., to hear
learned counsel for the respondents.
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The appeal is listed today. As already noted above, when
the matter is called, there is no representation on behalf of the
respondents, either personally or through video conferencing.
Therefore, this Court proceeds to pass Judgment on the merits
of the case.
3. This is an appeal from the Court of V Addl. District
and Sessions Judge, Mysore.
4. For convenience sake, the rankings of the parties
shall be referred to as per their status and rankings before the
Trial Court.
5. The plaint averments are these:
The plaintiff is the absolute owner of the property bearing
Sy.No.65/1B, totally measuring 1.34 Guntas out of which he
has constructed a shop in an extent of 12X20 feet out of 30X50
feet with RCC roof, morefully described in the plaint schedule.
It is stated that the first defendant is the nephew of the
plaintiff, and he took the plaint schedule premises for a lease
by tendering Rs.10,000/- (Rupees Ten Thousand only) as
advance. It was an oral lease, and the tenancy was month-to-
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month tenancy commencing from the first day of every
proceeding month. At the time of the inception of the tenancy,
it was agreed between the plaintiff and the first defendant that
the lease period would be for 11 months, and the purpose of
the lease was to conduct a dealer of cement in the plaint
schedule premises. The first defendant in accordance with the
oral lease, carried his business by dealing with cement till the
year 2005. He was a chronic defaulter in payment of rent. The
last paid rent was in August 2005 and thereafter he did not pay
the rent and he was due towards the arrears of rent a sum of
Rs.16,000/- (Rupees Sixteen Thousand only) till 31st December
2006 at the rate of Rs.1,000/- (Rupees One Thousand only) per
month.
It is stated that in the month of September 2005, the first
defendant without the consent of the plaintiff and in utter
violation of the agreed terms of the lease, inducted the second
plaintiff as a sub-lessee and is carrying on a business by
running Arrack shop without the consent of the plaintiff and
without the permission of the authorities concerned. Hence, the
plaintiff demanded the vacant possession of the plaint schedule
property from the first defendant who in turn instead of
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delivering the vacant possession, permitted the second
defendant to continue to conduct unlawful business in vending
arrack in the plaint schedule premises.
The plaintiff at the first instance caused a notice of
termination of tenancy to the first defendant and demanded the
vacant possession of the plaint schedule premises from the
defendants. The plaintiff issued one more notice of termination
dated 26.11.2006 and demanded the vacant possession of the
plaint schedule premises from the first and the second
defendants. The tenancy of the first defendant stands
terminated as of 28.11.2006 and thereby, the first defendant
seized to be a tenant of the plaintiff from 01.01.2007 and the
possession of the plaint schedule premises of the first
defendant along with the second defendant on 01.01.2007 is an
unauthorized possession. The notice was sent through RPAD.
There was no reply. Hence, the plaintiff was constrained to take
shelter under the Court of law and filed a suit directing the first
and the second defendant to hand over vacant possession of
the plaint schedule premises and direct the first defendant to
pay a sum of Rs.16,000/- (Rupees Sixteen Thousand only)
towards the arrears of rent.
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After the service of the suit summons, the defendants
appeared through their counsel and filed a written statement
and denied the plaint averments. They contended that the first
defendant did not take the property on lease. They specifically
contended that the plaintiff had sold the property to the
daughter of the first defendant namely Smt.Rukmini as per the
sale agreement dated 15.06.1981 and she in possession of the
property. The daughter has put up shop with RCC roof in the
suit property and the remaining area out of 40X50 lying within
the suit property is still vacant. It is also contended that
Smt.Rukmini leased out the RCC roofing shop to one
Sri.Mohankumar who was carrying the garage in the shop,
obtained electricity connection to the shop. He vacated the
shop, and it was leased out to one D.Puttaswamy who was
running a liquor business in the shop and storing his goods in
the asbestos sheet roofed portion. The second defendant has
become a vending person in the shops under liquor shop owner
D.Puttaswamy and the first defendant is not a tenant and there
is no relationship between of landlord and the tenant between
the parties. Among other grounds, they prayed for the
dismissal of the suit.
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Based on the above pleadings, the Trial Court framed
issues and parties led evidence and got marked documents.
The Trial Court vide Judgment and Decree dated 01.09.2008
decreed the suit. Aggrieved by the Judgment and Decree of the
Trial Court, the defendants preferred an appeal before the First
Appellate Court. The First Appellate Court vide Judgment and
Decree dated 06.01.2010 allowed the appeal and dismissed the
suit. Hence, this regular second appeal is filed by the plaintiff
under Section 100 of CPC.
6. Learned counsel for the appellant has urged several
contentions. Heard the contentions urged on behalf of the
appellant and perused the records with care.
7. This court vide order dated 09.03.2011, admitted
the appeal and framed the following substantial questions of
law:
(1) Whether Lower Appellate Court is right in
relying agreement of sale dated: 15.06.1981 in
view of Section 17 and 35 of Stamp Act and
decision in 2009 (3) KCCR short note 91?
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(2) Whether unregistered sale agreement
dated:15.06.1981 is null and void after three
years limitation if no specific performance is
filed?
8. The facts are sufficiently stated and do not require
reiteration. The first defendant specifically contended that her
daughter namely, Smt.Rukmini is the absolute owner of the
property in question. The defendants placed reliance on Ex.D.1.
Ex.D.1 is the alleged agreement of sale dated 15.06.1981. It is
the case of the defendants that the plaintiff agreed to sell the
property in favor of the daughter of the first defendant. It is
interesting to notice that the defendants denied the relationship
and the ownership of the plaintiff based on the agreement of
sale. The agreement of sale does not confer title. Except for
furnishing of the alleged agreement of sale, the defendants
have not furnished any documents to show that Smt.Rukmini is
the owner of the property in question. The daughter of the first
defendant has not been examined. On the contrary, the records
would reveal that the plaintiff is the absolute owner of the
property in question. The Trial Court extenso referred to the
material on record and justified in concluding that the plaintiff
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is the landlord of the suit scheduled property. This Court is not
inclined to interfere with the said finding.
9. Assuming for a while, there exists an agreement of
sale, nothing prevented the daughter of the first defendant
from taking steps to enforce the same well in time. She has not
done so. On the contrary, she filed a suit in the year 2009
seeking a declaration based on the alleged agreement of sale to
declare that she is the absolute owner of the property in
question. The suit was filed on the file of the I Addl. Civil Judge
(Sr.Dn) and CJM at Mysore in O.S.No.577/2009. The Trial Court
vide Judgment and Decree dated:22.09.2016 dismissed the
suit. She preferred an appeal before the Appellate Court i.e., on
the file of the Principal District and Sessions Judge, Mysuru in
R.A.No.914/2016 and the appeal was also dismissed vide
Judgment and Decree dated:25.02.2017. There is no further
appeal. Hence, it can be safely concluded that the plaintiff has
established that he is the landlord and thus he is entitled to the
relief sought for.
10. The substantial questions of law framed by this
court are answered accordingly. For the reasons stated above,
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the Judgment & Decree of the First Appellate Court is liable to
be set-aside. Accordingly, it is set-aside.
11. The Judgment & Decree dated:06.01.2010 passed
by the V Addl. District and Sessions Judge, Mysore in
R.A.No.1193/2009 is set-aside. The Judgment & Decree
dated:01.09.2008 passed by the Prl. I Civil Judge (Jr.Dn) &
J.M.F.C., Mysore in O.S.No.123/2007 is confirmed.
12. Resultantly, the Regular Second Appeal is allowed.
In view of disposal of the Regular Second Appeal, all the
pending interlocutory applications if any are disposed of.
Sd/-
JUDGE
TKN
