Karnataka High Court

Smt Keerthi R Rai vs Smt M M Laxmi Kutty on 8 January, 2024

Author: H.P.Sandesh

Bench: H.P.Sandesh

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RSA No. 2544 of 2011
C/W RSA No. 2542 of 2011
RSA No. 2543 of 2011

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 2544 OF 2011 (INJ)
C/W
REGULAR SECOND APPEAL NO. 2542 OF 2011 (INJ)
REGULAR SECOND APPEAL NO. 2543 OF 2011 (INJ)

IN R.S.A.NO.2544 OF 2011:

BETWEEN:

SMT KEERTHI R. RAI
W/O RAM MOHAN RAI
AGED ABOUT 42 YEARS
RESIDING AT DIGVIJAYA BEJAI
MANGALORE TALUK
D.K.DISTRICT-575001.
...APPELLANT
(BY SRI. BALASUBRAMANYA K.M., ADVOCATE)

AND:

SMT. M.M.LAXMI KUTTY
W/O LATE M.K.NAMBIAR
Digitally signed
AGED ABOUT 65 YEARS
by SHARANYA T RESIDING AT DOOR NO.16-8-489,
Location: HIGH MISSION COMPOUND, BALMATTA
COURT OF MANGALORE TALUK
KARNATAKA
D.K.DISTRICT-575001.

...RESPONDENT
(BY SRI. M VISHWAJITH RAI, ADVOCATE)

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 16.06.2011 PASSED IN
R.A.NO.76/2001 ON THE FILE OF THE III ADDL. SENIOR CIVIL
JUDGE & JMFC., MANGALORE, D.K AND ETC.
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RSA No. 2544 of 2011
C/W RSA No. 2542 of 2011
RSA No. 2543 of 2011

IN R.S.A.NO.2542 OF 2011:

BETWEEN:

SMT. KEERTHI R. RAI
W/O RAM MOHAN RAI
AGED ABOUT 42 YEARS
RESIDING AT DIGVIJAYA BEJAI
MANGALORE TALUK
D.K.DISTRICT-575001.
...APPELLANT
(BY SRI. BALASUBRAMANYA K.M., ADVOCATE)

AND:

1 . SMT.WINNIE MENEZES
W/O RONY MENEZES
AGED ABOUT 52 YEARS
RESIDING AT HARMONY MARY HILL
MANGALORE TALUK
D.K.DISTRICT-575001.

2 . SMT. M.M.LAXMI KUTTY
W/O LATE M.K. NAMBIRAN
AGED ABOUT 65 YEARS
RESIDING AT DOOR NO.16-8-489
MISSION COMPOUND, BALMATTA
MANGALORE TALUK,
D.K.DSITRICT-575001.
...RESPONDENTS
(BY SRI.ANAYA RAI, ADVOCATE FOR R1;
SRI M.VISHWAJIT RAI, ADVOCATE FOR R2)

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 16.06.2011 PASSED IN
R.A.NO.33/2001 ON THE FILE OF THE III ADDL. SENIOR CIVIL
JUDGE & JMFC., MANGALORE, D.K AND ETC.
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NC: 2024:KHC:878
RSA No. 2544 of 2011
C/W RSA No. 2542 of 2011
RSA No. 2543 of 2011

IN R.S.A.NO.2543 OF 2011:

BETWEEN:

SMT. KEERTHI R. RAI
W/O RAM MOHAN RAI
AGED ABOUT 42 YEARS
RESIDING AT DIGVIJAYA BEJAI
MANGALORE TALUK
D.K.DISTRICT-575001.
...APPELLANT
(BY SRI. BALASUBRAMANYA K.M., ADVOCATE)

AND:

1 . SMT.WINNIE MENEZES
W/O RONY MENEZES
AGED ABOUT 52 YEARS
RESIDING AT HARMONY MARY HILL
MANGALORE TALUK
D.K.DISTRICT-575001.

2 . SMT. M.M.LAXMI KUTTY
W/O LATE M.K. NAMBIAR
AGED ABOUT 65 YEARS
RESIDING AT DOOR NO.16-8-489
MISSION COMPOUND, BALMATTA
MANGALORE TALUK,
D.K.DSITRICT-575001.
...RESPONDENTS
(BY SRI.ANAYA RAI, ADVOCATE FOR R1;
SRI M.VISHWAJIT RAI, ADVOCATE FOR R2)

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 16.06.2011 PASSED IN
R.A.NO.71/2001 ON THE FILE OF THE III ADDL. SENIOR CIVIL
JUDGE & JMFC., MANGALORE, D.K AND ETC.
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RSA No. 2544 of 2011
C/W RSA No. 2542 of 2011
RSA No. 2543 of 2011

THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

JUDGM ENT

These three appeals are filed by the plaintiff

challenging the judgment and decree dated 16.06.2011

passed in R.A.Nos.33/2001, 71/2001 and 76/2001 by the

III Additional Senior Civil Judge, Mangalore, D.K., in

reversing the judgment and decree passed in

O.S.Nos.29/1994 and 436/1996.

2. The parties are referred to as per their original

rankings before the Trial Court to avoid confusion and for

the convenience of the Court. Heard the learned counsel

appearing for the respective parties.

3. The plaintiff has sought for the relief of

mandatory injunction, permanent injunction and

possession before the Trial Court. The Trial Court after

considering the material available on record, granted the

relief of mandatory injunction and for permanent

injunction and dismissed the claim of possession against
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RSA No. 2543 of 2011

defendant No.2. The original owner-defendant No.2 also

claimed the counter claim in the suit and the same was

dismissed by the Trial Court. Being aggrieved by the

judgment and decree of the Trial Court, defendant-owner

had filed the regular appeals against the judgment and

decree of mandatory injunction and permanent injunction

and also against the rejection of the counter claim.

3. The First Appellate Court on re-appreciation of

both oral and documentary evidence placed on record

reversed the finding of the Trial Court and set aside the

judgment and decree passed in O.S.No.29/1994 as well as

O.S.No.436/1996 and granted the relief of counter claim in

favour of the respondent-owner in coming to the

conclusion that already possession has been delivered.

The First Appellate Court on re-appreciation of both oral

and documentary evidence placed on record formulated

the points and answered point No.1 as affirmative in

coming to the conclusion that defendant No.1 has

surrendered the possession to defendant No.2 as partner
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of the firm and answered point Nos.2 and 3 as negative in

coming to the conclusion defendant No.1 has acted in

terms of the dissolution and also the plaintiff is not entitled

for the possession of the premises as sought and set aside

the direction of the Trial Court to defendant No.1 to deliver

the vacant possession in favour of plaintiff by answering

point No.4 as affirmative and so also comes to the

conclusion that the judgment and decree of the Trial Court

needs interference. Being aggrieved by the judgment and

decree of the First Appellate Court, the present three

appeals are filed by the plaintiff questioning the reversal of

the finding of the Trial Court.

4. The learned counsel for the appellant would

vehemently contend that the question of considering

granting of mandatory injunction and permanent

injunction does not arise since the First Appellate Court

has reversed the finding that possession has been

delivered long back. However, the appellant is entitled for

mesne profit since defendant No.1 committed an error in
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handing over the possession in favour of defendant No.2

as against the terms of the Dissolution Deed. The counsel

also would vehemently contend that in the cross-

examination, DW1 has admitted that she has received the

notice sent by the plaintiff as per Ex.P8 but defendant-

owner has not replied to the said notice and she has

retuned the cheque issued by the plaintiff dated

02.11.1993 for Rs.1,200/- as per Ex.P12. The counsel

also would vehemently contend that when defendant No.1

was not having any right to deliver the possession in

favour of the defendant No.2-original owner, he is entitled

for mesne profit.

5. Per contra, the learned counsel appearing for

respondent No.1 would contend that when the partnership

was dissolved in terms of Dissolution Deed dated

17.09.1993, possession was handed over in favour of the

original owner-defendant No.2. It is not in dispute that

defendant No.2 in turn executed the lease deed in favour
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of the tenant consequent upon handing over the

possession.

6. The counsel for defendant No.2 submits that if

there is any partnership agreement and dissolution, that is

inter se between the plaintiff and defendant No.1. When

the possession was delivered in favour of defendant No.2,

defendant No.2 acted upon since she being the owner of

the premises hence, she let out the same.

7. Having heard the learned counsel appearing for

the respective parties and also on perusal of the material

available on record, it discloses that there is no dispute

with regard to the fact that lease deed was executed on

29.10.1992 in favour of the firm. It is also not in dispute

that a dissolution document came into existence on

17.09.1993. It is also important to note that in terms of

the conditions at Clause 5 and 6, the partnership was

dissolved and recognized the plaintiff as a sole tenant.

Though counsel for defendant No.1 contends that the very

said recital is void ab-initio, the said contention cannot be
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accepted since defendant No.1 is also signatory to the said

document. It is also important to note that in Clause 6, it

is specific that defendant No.1 has to shift his belongings

from the partnership premises and hand over the keys to

the sole tenant that is the appellant herein. It is important

to note that now, the appellant is restricting his claim with

regard to the mesne profit is concerned. It is also

important to note that when the appellant/plaintiff

tendered the rent in favour of the original owner-

defendant No.2, defendant No.2 has not accepted the

same and not encashed the cheque. The records reveal

that the cheque was returned in terms of Ex.P12. When

such being the case, the question of making payment of

mesne profit in favour of the plaintiff/appellant till the

delivery of the possession does not arise. The fact that

partnership firm was dissolved on 17.09.1993. No doubt,

defendant No.1 acted against the terms and conditions of

Clause 5 and 6 of the Deed of the Dissolution of

Partnership. The First Appellate Court taken note of the

factual aspects that possession already been delivered and
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in terms of delivery of possession, the original owner has

already let out the premises and the right of the tenant is

also limited and hence, the First Appellate Court comes to

the conclusion that the plaintiff is not entitled for the relief

of mandatory injunction as well as permanent injunction.

8. It is also important to note that the Trial Court

rejected the claim of possession by the plaintiff in the said

suit. When the owner has filed the appeals before the

First Appellate Court and the First Appellate Court rightly

appreciated the material available on record and comes to

the conclusion that defendant No.1 delivered the

possession in favour of defendant No.2 and owner also

acted consequent upon the delivery of the possession by

letting out the premises to the tenant. When such being

the case, when the appellant has not paid the rent in

favour of the owner, the question of claiming mesne profit

does not arise. Hence, I do not find any ground to reverse

the finding of the First Appellate Court when the First

Appellate Court considered the factual aspects of the case.
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But the fact that possession was delivered in the year

1993 in favour of defendant No.2-owner and thereafter

she let out the premises to the plaintiff/appellant. When

such being the material available on record, the question

of granting the relief as sought in the suit by the plaintiff

does not arise. Hence, I do not find any error committed

by the First Appellate Court in reversing the judgment and

decree of the Trial Court and there is no merit in the

present appeals to determine the mesne profits as

contended by the counsel for the appellant/plaintiff.

9. In view of the discussions made above, I pass

the following: