Karnataka High Court
Sri Panduranga Ganiga vs Smt Padmaja S Hegde on 6 February, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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RSA No. 1407 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
REGULAR SECOND APPEAL NO.1407 OF 2016 (RES)
BETWEEN:
SRI PANDURANGA GANIGA
S/O.SRI KRISHNA GANIGA
AGED ABOUT 42 YEARS
SATHYANARAYANA BUILDING
HARDALLI-MANDALLI VILLAGE
POST: BIDKALKATTE
KUNDAPURA TALUK
UDUPI DISTRICT-576 222
...APPELLANT
(BY SRI K.CHANDRANATH ARIGA K., ADVOCATE)
AND:
SMT.PADMAJA S.HEGDE
D/O.LATE K.ANTHAYYA SHETTY
AGED ABOUT 61 YEARS
KRISHNA KRIPA
OPP: AMMANI RAMANNA SHETTY HALL
VOLKADU
Digitally
UDUPI-576 101
signed by B
LAVANYA ...RESPONDENT
Location: (BY SRI AJITH ANAND SHETTY, ADVOCATE)
HIGH
COURT OF
KARNATAKA THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC PRAYING TO SET-ASIDE THE JUDGMENT
AND DECREE DATED 08.04.2009 PASSED IN O.S.NO.120/2005
BY THE PRINCIPAL CIVIL JUDGE (JR.DN.), KUNDAPURA AND
THE JUDGMENT AND DECREE DATED 01.04.2016 PASSED IN
R.A.NO.26/2009 BY THE SENIOR CIVIL JUDGE, KUNDAPURA.
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RSA No. 1407 of 2016
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the defendant questioning
the judgment and decree dated 01.04.2016 passed in
R.A.No.26/2009 by the Senior Civil Judge, Kundapura,
which affirmed the judgment and decree dated 08.04.2009
passed in O.S.No.120/2005 by the Principal Civil Judge
(Jr.Dn.), Kundapura, whereby the trial Court decreed the
suit of the plaintiff and directed the defendant to vacate
the suit schedule premises and to deliver the vacant
possession of the same to the plaintiff within three months
from the date of the order. It further held that the
defendant shall pay rental arrears for the months of
January, 2005 to June, 2005 amounting to Rs.2,400/- and
future profits at the rate of Rs.400/- per month from July,
2005 till the date of delivery of possession of the suit
property.
2. Parties shall be referred to as per their status
before the trial Court.
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3. Brief facts of the case is as under:
The respondent-plaintiff had initiated a suit against
the defendant for ejectment of schedule premises and for
a direction to the defendant to deliver the same to the
plaintiff with future profits at Rs.1,000/- per month from
the date of the suit till the date of delivery and to pay a
sum of Rs.2,400/- towards arrears of rent from January
2005 to June 2005.
3.1 The plaintiff claims to be owner of the shop
premises by virtue of the registered settlement deed dated
06.09.2004. Pursuant to which, the plaintiff acquired title
and thereafter, she got terminated the monthly tenancy of
the defendant by virtue of the legal notice dated
20.12.2004. Pursuant to receipt of the legal notice, the
defendant requested the plaintiff to grant fresh lease of
the schedule premises for a further period of 11 months
on the enhanced rate of rent of Rs.400/- per month, which
was agreed to by the plaintiff and they entered into a fresh
lease agreement evidencing the terms and conditions by
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way of a rent agreement dated 28.12.2004. The defendant
continued to occupy the schedule premises on the new
terms of lease. After paying rent for few months, he did
not pay rent for the month of January, 2005, inspite of
repeated requests. The plaintiff, thereafter, terminated the
above new tenancy of the defendant by issuance of legal
notice dated 11.06.2005. The said notice of termination
was duly served upon defendant on 14.06.2005. However,
he failed to vacate the schedule premises and sent a reply
dated 24.06.2005 denying the contents of the legal notice
and continued to occupy the schedule premises.
3.2 The defendant, on appearance, filed his written
statement denying the ownership of the plaintiff over the
suit schedule property and pleaded that plaintiff never got
the title by virtue of the settlement agreement. The
defendant also took up a plea that the plaintiff has no
locus standi to enter into alleged agreement of the suit
schedule property and that the lease agreement is a void
document as the plaintiff has no right or locus standi to
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institute the above suit or she has no right to demand the
possession of the schedule property. It is also stated that
the defendant was ready to pay the monthly rentals to the
actual legal heirs of his erstwhile landlord K.Anthayya
Shetty in respect of the suit schedule premises. Due to the
dispute between the legal heirs of Late K.Anthayya Shetty,
the defendant has been prevented to pay monthly rent.
On these grounds, he sought for dismissal of the suit.
3.3 Based on the pleadings of both the parties,
learned trial Judge framed the following issues for
consideration:
"1. Whether the plaintiff proves that she is the
landlord and defendant is tenant of suit
premises?
2. Whether the plaintiff proves that she has
terminated the tenancy in accordance with
law?
3. Whether the defendant proves that plaintiff
has no locus standi to file this suit?
4. Whether the plaintiff proves that the
defendant is in arrears of rent for Rs.2,400/-
as claimed?
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5. Whether the plaintiff is entitled for future
profits, if so at what rate?
6. Whether the plaintiff is entitled for vacant
possession as prayed for?
7. What decree or Order?"
3.4 On the basis of pleadings and issues, the plaintiff
examined a witness as PW.1 and got marked documents
as Exs.P1 to P7, whereas defendant examined himself as
DW.2 and three other witnesses as DWs.1, 3 and 4 and
got marked documents as Exs.D1 to D5.
3.5 After hearing learned counsel for plaintiff as well
as learned counsel for defendant, on the basis of the
pleadings, material evidence, both oral and documentary,
the trial Court decreed the suit of the plaintiff and
negatived the contention of the defendant and directed the
defendant to vacate the suit schedule premises and to
deliver vacant possession of the same to the plaintiff
within three months from the date of the decree and
further to pay rental arrears for the month of January,
2005 to June, 2005 amounting to Rs.2,400/- and further
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to pay future profits at the rate of Rs.400/- per month
from July, 2005 till the date of delivery of possession of
the suit schedule premises.
3.6 Being aggrieved by the judgment and decree of
the suit, the defendant preferred an appeal before the first
appellate Court under Section 96 of Code of Civil
Procedure, which was contested by the plaintiff. The first
Appellate Court, after service of notice on the plaintiff and
after hearing learned counsel for plaintiff as well as
learned counsel for defendant, formulated following points
for consideration:
"1. Whether the trial Court justified in holding
that the defendant is tenant under the
plaintiff and there was a relationship landlord
and tenant between the plaintiffs and
defendant?
2. Whether the Judgement passed by the Trial
Court is illegal capricious and liable to set-
aside and interference of this court is
warranted?
3. What order/decree?"
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3.7 The first Appellate Court, on re-appreciation
and re-analysation of the entire materials on record, both
oral and documentary, dismissed the appeal of the
defendant and confirmed the judgment and decree of the
trial Court.
3.8 The appellant-defendant, being aggrieved by the
concurrent finding of the trial Court as well as the first
Appellate Court, is before this Court in this appeal
questioning the legality and correctness of the order
contending that there is substantial question of law that
requires to be adverted to by this Court, as the same has
not been considered by both the Courts.
4. Learned counsel for appellant-defendant
vehemently contends that the suit filed by the plaintiff for
ejectment is not maintainable. The same is liable to be
dismissed, as the plaintiff has not come before the Court
with clean hands by disclosing herself to be the owner of
the suit schedule property on the basis of settlement
agreement dated 06.09.2004 which was not produced and
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the defendant denied the settlement agreement as well as
the rental agreement right from the beginning in his
pleadings. Therefore, the trial Court has committed an
error in decreeing the suit without taking into
consideration the defence put-forth by the defendant with
regard to the plaintiff not being the owner or landlord of
the suit schedule premises.
4.1 Learned counsel further contends that the trial
Court and the first Appellate Court have failed to take into
consideration the dispute in O.S.No.79/2004, wherein the
suit came to be filed by the sibling of the plaintiff for the
relief of partition. He further contends that when the right
of the plaintiff is not crystalised over the property with
regard to her ownership or title, the question of plaintiff
being the owner or landlord of the suit schedule premises
is far fetched and had not fructified. Hence, when the
plaintiff herself has failed to prove her title and ownership,
she could not have succeeded in the suit for ejectment
against the defendant. He further contends that the rental
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agreement itself is erroneous and fraudulent one
suppressing the material facts of the settlement deed and
the original suit filed by Smt.Prathima S.Shetty, sibling of
the plaintiff. Therefore, it is his contention that the trial
Court has failed to appreciate the inherent defect of title of
the plaintiff and has decreed the suit without taking into
consideration these material facts, which are placed on
record.
4.2 It is the further contention of learned counsel
that the substantial questions of law arise for
consideration, namely:-
"1) Whether the judgment of the trial
Court for possession of the property
is proper, without the plaintiff proving
the title of the suit property?
2) Whether the judgment of the first
Appellate Court holding that the rental
agreement is proof of the relationship
of landlord and tenant, is correct on
the face of the title over the suit
property being the subject matter of
the suit in O.S.No.79/2004?
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4.3 It is further contended that when the plaintiff
has not established the ownership or title over the suit
schedule property, entering into a lease agreement is bad
in law. Therefore, the plaintiff has not established proper
ownership or title or being the landlord of the suit
schedule property. On these substantial questions of law,
he invites this Court to interfere with the judgment and
decree rendered by the trial Court as well as the first
Appellate Court.
5. Learned counsel for respondent-plaintiff contends
that the concurrent finding recorded by both the Courts
below are just and proper and the appellant-defendant has
not made out any ground to interfere with the impugned
judgment and decree. Hence, she seeks to dismiss the
appeal preferred by the appellant-defendant.
6. I have heard learned counsel for appellant as well
as learned counsel for respondent.
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7. It is not in dispute that the appellant-defendant
was originally a tenant of father of the plaintiff namely,
K.Anthayya Shetty and pursuant to his death, when the
tenancy was terminated, a fresh tenancy came into
existence by a lease deed dated 28.12.2004 executed by
the plaintiff in favour of the defendant. After paying the
rent for few months, the defendant failed to pay rents
from January, 2005. It is also not disputed between the
parties that the plaintiff is one of the legal heirs and
daughter of Late K.Anthayya Shetty, under whom the
defendant was a tenant. Though the rental agreement is
denied by the defendant, the execution of the same is not
disputed except denying the fact that the rental
agreement is a fraudulent document, which would not
have a legal binding, in view of the plaintiff not having
established the ownership or title over the suit schedule
property. But on the whole, the defendant has admitted
the execution of the rental agreement, payment of rent
thereafter, receipt of termination of tenancy and reply to
the said legal notice of termination of tenancy.
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8. Having considered all these aspects, the trial Court
not being satisfied with the contentions put-forth by the
defendant decreed the suit of the plaintiff on the ground
that the defendant cannot dispute the title of the plaintiff
and notice has been issued under Section 106 of the
Transfer of Property Act, 1882, which is proper and
directed the defendant to vacate and deliver vacant
possession of the suit schedule property to the plaintiff.
The issues framed by the trial Court do not deal with any
issue of ownership or title of the plaintiff over the suit
schedule property. The issues were subjected to - whether
the plaintiff proves that she is the landlord and defendant
is tenant of suit premises?; whether there was termination
of tenancy in accordance with law?; whether the
defendant proves that the plaintiff has no locus standi to
file the suit?; and whether the payment of arrears is due
in favour of the plaintiff?. However, there is no issue
framed with regard to title or ownership of the plaintiff
over the suit schedule property, as the same did not
warrant. Though a defence was taken by the defendant in
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his written statement, the question of the trial Court
answering the issue of ownership or title did not arise in
the original suit.
9. When the suit came to be decreed and thereafter,
it was taken up in the first appeal by the defendant, the
very same issues were agitated and the points were
formulated by the first Appellate Court to consider:-
"1) Whether the judgment and decree
rendered by the trial Court is correct
and it is to be sustained? and
2) Whether there was a relationship of
landlord and tenant between the
plaintiff and the defendant?"
10. The First Appellate Court, upon re-appreciation
and reconsideration of entire materials available on record,
both oral and documentary, affirmed the judgment and
decree rendered by the trial Court agreeing with the
contentions of learned counsel for plaintiff and confirmed
the judgment and decree of the trial Court and rejected
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the contentions raised by the defendant relying on Section
116 of the Indian Evidence Act, 1872 (for short, 'the Act').
11. It is necessary to extract the provisions of
Section 116 of the Act as under:
"116. Estoppel of tenant; and of licensee
of person in possession.─No tenant of
immovable property, or person claiming
through such tenant, shall, during the
continuance of the tenancy, be permitted to
deny that the landlord of such tenant had, at
the beginning of the tenancy, a title to such
immovable property; and no person who came
upon any immovable property by the licence of
the person in possession thereof, shall be
permitted to deny that such person had a title
to such possession at the time when such
licence was given."
Section 116 of the said Act as extracted above deals
with the case of estoppel of tenant and of licensee of
person in possession, which clearly states that during the
continuance of the tenancy, a tenant cannot be permitted
to deny that the landlord of such tenant had, at the
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beginning of the tenancy, a title to such immovable
property. Therefore, this contemplates once a tenant
admits relationship of tenancy by virtue of either a written
document of rental agreement or a lease agreement or
payment of tenancy, he/she is estopped from taking the
plea that the landlord is not the owner of the suit schedule
property. Therefore, there is a clear bar for the tenant to
take a plea, as he is estopped from doing so.
12. In the present case, there is absolutely clear and
cogent material to show that the defendant-tenant has
admitted the execution of the rental agreement with the
plaintiff-landlord. He has also paid rent intermittently. He
has also stated that he has been ready and willing to pay
monthly rent to the actual legal heirs of the erstwhile
landlord Late K.Anthayya Shetty in respect of the suit
schedule premises. But, he has stated that he has been
prevented from paying the rent due to initiation of suit
preferred by one of the siblings of the plaintiff. Therefore,
the defendant has clearly admitted the relationship of
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landlord and tenant with the plaintiff and himself but, has
disputed the settlement deed in view of initiation of the
suit proceedings by the sibling of the plaintiff in
O.S.No.79/2004. This is an example of a classic case,
where a third party takes advantage of internal fighting/
quarrel between the family members and enjoys the
property without even paying the rent. Whatever may be
the dispute between the plaintiff and her sibling, the fact
remains that the plaintiff has entered into a rental
agreement pursuant to termination of earlier rental
agreement executed by her father and by virtue of the
present rental agreement dated 28.12.2004, the
defendant having paid certain amount of rent, which is
thereafter terminated, now cannot take up a plea that
there is no relationship of landlord and tenant in view of
the plaintiff not proving her ownership over the suit
schedule property. The same is utterly far fetched and not
sustainable in law, in view of the specific bar contained
under Section 116 of the Act.
[
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13. Under the circumstances, the present appeal
which is filed to consider the substantial questions of law
has to be seen by this Court to decide as to whether there
is any question of law required to be framed to entertain
the present appeal. However, Section 100 of CPC is a very
limited and narrow extent to deal with any question of law
that arises to be dealt with in the present case on hand.
This Court sitting in a second appeal under Section 100 of
CPC cannot sit in the arm chair of an Appellate Court to
decide the question of fact or question of law which has
already been decided by the Courts below.
14. In the present case on hand, the defendant has
failed to place any cogent material before this Court to
frame substantial question of law. Law of Estoppel under
Section 116 of the Act is applicable in the present case on
hand, the First Appellate Court has rightly appreciated the
same. Admission of the appellant with regard to the
tenancy payment of part rent would disentitle him from
questioning the ownership of the respondent. Hence, after
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careful appreciation of the materials placed and on perusal
of the impugned judgment and decree of the trial Court
and the first Appellate Court, I do not find any substantial
question of law that requires to be framed in the present
case.
15. In view of the above discussions, I proceed to
pass the following:
ORDER
The appeal preferred by the defendant is dismissed
at the stage of admission itself, as no question of law is
made-out to be framed.
In view of dismissal of the appeal, pending I.A. for
stay would not survive for consideration.
Sd/-
JUDGE
LB
