Karnataka High Court
Isamma vs B. Madhava Acharya on 5 February, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 2007 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 2007 OF 2023 (POS)
BETWEEN:
1. ISAMMA
AGED ABOUT 66 YEARS
2. AVVAMMA
AGED ABOUT 53 YEARS
3. MUMTAZ
AGED ABOUT 51 YEARS
4. UMAR ASHIF
AGED ABOUT 45 YEARS
5. KAIRUNNISA
AGED ABOUT 43 YEARS
6. NOORZAHAN
Digitally
signed by AGED ABOUT 38 YEARS
SUMA B N
Location: High 7. AKBAR ALI
Court of AGED ABOUT 36 YEARS
Karnataka
ALL ARE LEGAL HEIRS O LATE DEFENDANT
IBRAYEE BEARY, S/O IDDINE BEARY,
R/AT AJJAMKODI,
NAVOOR VILLAGE AND POST,
BANTWAL TALUK, DAKSHINA KANNADA -574 211.
...APPELLANTS
(BY SRI. IJARI NAGARAJA., ADVOCATE)
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RSA No. 2007 of 2023
AND:
1. B. MADHAVA ACHARYA
AGED ABOUT 61 YEARS,
2. B KESHAVA ACHARYA
AGED ABOUT 59 YEARS,
3. B MOHAN KUMAR
AGED ABOUT 57 YEARS,
4. B UMESH ACHARYA
AGED ABOUT 52 YEARS,
ALL ARE CHILDREN OF
BALAKRISNA ACHARYA,
R/AT AJJIAMKODI,
NAVOOR VILLAGE AND POST,
BANTWAL TALUK,
DAKSHINA KANNADA DISTRICT - 574 211.
...RESPONDENTS
(BY SRI. G. RAVISHANKAR SHASTRY, ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 3.10.2023 PASSED IN RA
NO.21/2022 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE
AND JMFC AT BANTWAL,. DAKSHINA KANNADA., DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 21.09.2021 PASSED IN O.S. NO.227/2012 ON THE FILE
OF PRINCIPAL CIVIL JUDGE AND JMFC., BANTWAL.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 2007 of 2023
JUDGMENT
This appeal is by the appellants aggrieved by the
judgment and decree dated 21.09.2021 passed in
O.S.No.227/2012 on the file of the Principal Civil Judge &
JMFC, Bantwal, Dakshina Kannada, (hereinafter referred to
as 'Trial Court' for short) by which while decreeing the suit
defendant was directed to hand over vacant possession of
the suit 'A' schedule property to the plaintiffs within a
period of three months and also directed to pay the
plaintiffs a sum of Rs.2,187/- towards costs of the suit
which judgment and decree is confirmed by the judgment
and order dated 03.10.2023 passed in R.A.No.21/2022
on the file of the Senior Civil Judge and JMFC, Bantwal,
Dakshina Kannada (hereinafter referred to as 'First
Appellate Court' for short).
2. The above suit was filed by the
respondents/plaintiffs against the original defendant
seeking possession of the suit 'A' schedule property
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contending that defendant was a monthly tenant under the
father of the plaintiffs in respect of suit schedule property
on a payment of monthly rent of Rs.2/-. That there was a
rental agreement executed by the defendant on
10.01.1974. That the defendant had agreed to surrender
possession of the property by 31.12.1976. However,
defendant had taken hostile attitude against the plaintiffs
and he was in arrears of rentals for more than three years.
That the defendant also attempted to encroached upon the
surrounding lands belonging to the father of the plaintiffs
which constrained him to file a suit in O.S.No.54/1985.
The father of the plaintiffs died on 06.05.2012 and during
his lifetime he had executed Settlement Deed in respect of
the suit schedule property allotting the shares in the
schedule property to the plaintiffs 1 to 4. Plaintiff No.1
thereafter issued a notice dated 31.12.1992 terminating
the tenancy of the defendant effective from the end of
January 1993 which was responded by the defendant by
issuance of a untenable reply on 12.06.1993. That
plaintiffs had filed a suit in O.S.No.307/1993 which was
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dismissed on 27.02.2008 with a liberty to file fresh suit on
the same cause of action as the defendant had made a
claim in respect of the schedule property before the Land
Tribunal. That upon the disposal of the matter before the
Land Tribunal which was confirmed by this Court in
W.P.No.29176/2010 the defendants filed the present
appeal.
3. Considering the contention urged by the parties
and the evidence led thereon the Trial Court decreed the
suit directing the defendants to vacate and hand over the
vacant schedule 'A' property to the plaintiffs within three
months. Original defendant passed away during pendency
of the suit and legal representatives of original defendant
were brought on record and they preferred an appeal in
R.A.No.21/2022. On re-appreciation of the evidence the
First Appellate Court dismissed the appeal confirming the
judgment and decree passed by the Trial Court. Being
aggrieved by the same, legal representatives of the
original defendant are before this Court.
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4. Head. Perused the records and the matter was
taken up for final hearing.
5. Learned counsel for the appellants on
29.01.2024 after arguing the matter for sometime and
since no substantial question of law is involved in the
matter for consideration had sought for a week's
accommodation to seek instructions from
appellants/defendants with regard to time required by
them to vacate and hand over premises as directed by the
trial Court. Today, Sri. Ijari Nagaraja, learned counsel
appearing for the appellants on instructions submits that
the appellants be granted time for a period of 10 months
enabling them to vacate the premises.
6. Sri.R.Ravishankar Shastry, learned counsel for
the respondents vehemently opposes the same. He
submits that respondents/plaintiffs have been attempting
to recover the possession from the appellants/defendants
for over three decades and for one or the other reason
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same is getting postponed. Therefore he submits that
appellants/defendants have no locus standi to ask for any
further time.
7. Be that as it is. Since the property is a
residential property this Court is of the considered view
that appellants be granted time till end of December,
2024. However making it clear that appellants shall file an
affidavit within two weeks from the date of the disposal of
the appeal undertaking to vacate and hand over suit 'A'
schedule property to the respondents.
8. With the above observation the appeal is
disposed of.
Sd/-
JUDGE
RU
