Sri. T Abdul Waheed vs Sri. Janab A Noor Mohammed
2023 Latest Caselaw 6593 Kant

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                                                    NC: 2023:KHC:34007
                                                  RFA No. 1265 of 2016




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                  DATED THIS THE 19TH DAY OF SEPTEMBER, 2023
                                      BEFORE
                    THE HON'BLE MR JUSTICE V SRISHANANDA
                  REGULAR FIRST APPEAL NO. 1265 OF 2016 (RES)
            BETWEEN:

            1.    SRI. T. ABDUL WAHEED,
                  S/O T. ABDUL HAMEED,
                  AGED ABOUT 62 YEARS,

                  SRI. T. ABDUL AZEEZ,
                  S/O T. ABDUL HAMEED,
                  AGED ABOUT 68 YEARS,
                  SINCE DECEASED BY HIS LRS,

            2.    SMT. SARVAR JAHAN,
                  W/O LATE SRI. T. ABDUL AZEEZ,
                  AGED ABOUT 67 YEARS,

            3.    SRI. T. MOHAMMED SHARIQUE,
                  S/O LATE SRI. T. ABDUL AZEEZ,
                  AGED ABOUT 39 YEARS,

Digitally   4.    SRI. T. MOHAMMED SHARIQUE,
signed by
MALATESH          S/O LATE SRI. T. ABDUL AZEEZ,
KC                AGED ABOUT 38 YEARS,
Location:
HIGH        5.    SMT. T. FAKIHA IRAM.
COURT OF          D/O LATE SRI. T. ABDUL AZEEZ,
KARNATAKA
                  AGED ABOUT 41 YEARS,

            6.    SMT. T. AFIYA,
                  D/O LATE SRI. T. ABDUL AZEEZ,
                  AGED ABOUT 36 YEARS,

            7.    SMT. T. RIZVANA BEGUM.
                  W/O SRI. T. A. KHALEEM AHMED,
                  AGED ABOUT 51 YEARS,
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                                        NC: 2023:KHC:34007
                                     RFA No. 1265 of 2016




     ALL ARE RESIDING AT NO.625,
     ONJI STREET, MUSLIMPUR,
     VANIYAMBADI, NORTH ARCOT DISTRICT,
     TAMIL NADU - 635 751.
                                             ...APPELLANTS
(BY SRI. P. B. RAJU, ADVOCATE)
AND:

1.   SRI. JANAB. A. NOOR MOHAMMED,
     S/O ALHAJ A.M. FAZULLAHA,
     AGED ABOUT 56 YEARS,

2.   SMT. AZRA BEGUM,
     W/O SRI. JANAB A. NOOR MOHAMMED,
     AGED ABOUT 50 YEARS,

3.   SRI. N. K. P. ABDUL HAQ,
     MANAGING PARTNER,
     EMPIRE RESTAURANT,
     NO.35 & 36, F.M: NOORONHA ROAD,
     OPPOSITE RUSSEL MARKET,
     SHIVAJINAGAR, BANGALORE - 560 051.
                                           ...RESPONDENTS
(BY SRI. SKANDAKUMAR, ADVOCATE FOR
    SRI. M. D. RAGHUNATH, ADVOCATE FOR R1 AND R2)

       THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 23.04.2016 PASSED IN
O.S. NO.8054/2004 ON THE FILE OF THE III ADDL. CITY CIVIL
& SESSIONS JUDGE, BANGALORE CITY (CCH-25) DISMISSING
THE SUIT FOR EJECTMENT.


       THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                                             NC: 2023:KHC:34007
                                           RFA No. 1265 of 2016




                         JUDGMENT

Heard on Sri.P.B.Raju, learned counsel for the

appellants and Sri.Skandakumar, learned counsel on

behalf of Sri.M.D.Ragunath for respondent Nos.1 and 2.

2. The present appeal is directed as against the

judgment and decree dated 23.04.2016 passed in

O.S.No.8054/2004 on the file of III Addl. City Civil &

Sessions Judge, Bengaluru City (CCH-25), which was filed

for ejectment and damages, which came to be dismissed.

3. The brief facts which are utmost necessary for

disposal of the appeal as under.

4. The plaintiff being the landlord, initiated the

proceedings against the defendant for ejectment and

seeking damages by issuing the termination notice.

Termination notice came to be issued under the provisions

of Transfer of Property Act, 1882, calling the defendants to

hand over the possession and enjoyment of the property.

NC: 2023:KHC:34007 RFA No. 1265 of 2016

5. Consequently, the defence taken by the

defendant in the Trail Court was that plaintiffs agreed to

sell the property in favour of defendants by entering into

an agreement and therefore, he is no longer a tenant in

respect of the property and relationship of landlord and

tenant came to an end by virtue of agreement and a new

relationship of vendor and purchaser crept in between the

parties and therefore, he need not vacate the premises

and he continue to be in possession of the suit property as

a part performance of the agreement to sale.

6. Trial Court agreed with the contentions taken

by the defendants and dismissed the suit of the plaintiffs.

7. In the meantime, suit for specific performance

was initiated by defendants against the plaintiffs, which is

now pending in O.S.No.27524/2009 on the file of

Additional City civil Judge, Bengaluru (Mayo Hall) and

same is now posted for final arguments.

8. If the plaintiffs were to succeed in getting the

suit for Specific Performance dismissed on the ground that

NC: 2023:KHC:34007 RFA No. 1265 of 2016

there is no proper agreement and there is no readiness

and willingness on the part of the defendants herein, they

can always file necessary proceedings to take possession

of the property from the defendant in accordance with law.

9. Reserving such liberty for the plaintiffs, this

Court does not find any legal infirmity in the impugned

judgment whereby appeal needs to be admitted for further

consideration. Hence, the following order.

                            ORDER

      (i)    Admission declined.
      (ii)   The appeal is dismissed.

However, dismissal of the present appeal would not come in the way of the appellants filing a fresh suit for possession of the property, if they succeed in O.S.No.8054/2004.

Sd/-

JUDGE

AT

CT: BHK