Karnataka High Court
Shri. Ashok S/O. Keshav Pavaskar vs Smt. Ramabai W/O. Narahari Raikar on 24 July, 2024
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NC: 2024:KHC-D:10471
RSA No. 100820 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 24TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 100820 OF 2018 (INJ-)
BETWEEN:
SHRI. ASHOK S/O. KESHAV PAVASKAR
SINCE DECEASED BY HIS LRS
1 SRI SANTOSH ASHOK PAVASKAR,
AGE: 38 YEARS, OCC:AGRICULTURE
& BUSINESS, NOW R/O. BAGGON,
TQ:KUMTA, DIST:UTTARA KANNADA.
2. SMT. SUDHABAI W/O. ASHOK PAVASKAR
AGE:67 YEARS, OCC:HOUSEWIFE,
NOW R/O. BAGGON, TQ:KUMTA,
DIST:UTTARA KANNADA.
...APPELLANTS
(BY SRI H R DESHPANDE,
Digitally signed AND SMT. USHA H. DESHPANDE, ADVOCATES)
by SAROJA
HANGARAKI AND:
Location: HIGH
COURT OF
KARNATAKA SMT. RAMABAI W/O. NARAHARI RAIKAR
DHARWAD SINCE DECEASED BY HER LRS
BENCH
DHARWAD
1. NAGARAJ NARAHARI RAIKAR,
AGE: 57 YEARS, OCC:BUSINESS,
R/O. VIDYANAGAR, HUBBALLI,
DIST:DHARWAD-580009.
2. KALPANA RAMESH SHET
AGE:50 YEARS, R/O. DANDELI,
TQ:HALIYAL, DIST:DHARWAD-580002.
3. RAMESH NARAHATI RAIKAR
AGE: 62 YEARS, OCC:BUSINESS,
R/O.HOSUR, BEHIND CANARA BANK,
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RSA No. 100820 of 2018
TQ:HUBBALLI,DIST:DHARWAD-580013.
4. SURESH NARAHARI RAIKAR
AGE:60 YEARS, OCC:BUSINESS,
NOW R/O.:HOSUR, BEHIND CANARA BANK,
TQ:HUBBALLI, DIST:DHARWAD-580013.
5. VINOD NAGESH BALERI
AGE:54 YEARS, OCC:AGRICULTURE
AND BUSINESS,
R/O. MURUKATTE,
TQ:KUMTA,
DIST:UTTARA KANNADA-581332.
6. ROOPA D/O. ASHOK PAVASKAR
AGE: 40 YEARS,
OCC:HOUSEWIFE,
NOW R/O. BEHIND COMMERCE COLLEGE,
VIDYANAGAR,
HUBBALLI-580013.
7. REKHA D/O ASHOK PAVASKAR
AGE:36 YEARS,
OCC:HOUSEWIFE,
R/O. KHB COLONY,
KARWAR-581371.
...RESPONDENTS
(BY SRI VISHWANATH HEGDE, ADVOCATE FOR C/R5)
THIS RSA IS FILED U/SEC.100 OF CPC, 1908, PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE DATED 04.09.2018 PASSED
IN R.A.NO.14/2016 BY THE SENIOR CIVIL JUDGE KUMTA AND ALSO
THE JUDGMENT AND DECREE PASSED BY THE CIVIL JUDGE (JR.DN.)
& JMFC, KUMTA IN O.S.NO.55/1994 DATED 05.01.2016 AAND TO
DECREE THE SUIT OF THE APPELLANTS IN O.S.NO.55/1994 AS
PRAYED FOR ON THE FILE OF THE CIVIL JUDGE (JR.DN.) & JMFC,
KUMTA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RSA No. 100820 of 2018
JUDGMENT
Heard submissions of learned counsel,
Sri.H.R.Deshapande for the appellants and learned
counsel Sri.Vishwanath Hegde for caveator/respondent
No.5.
2. The present second appeal is filed under
Section 100 of the Code of Civil Procedure, 19081 by the
plaintiffs challenging the judgment and decree dated
04.09.2018 passed in R.A.No.14/2016 by the Senior Civil
Judge, Kumta2 and the judgment and decree dated
05.01.2016 passed in O.S.No.55/1994 by the Principal
Civil Judge and J.M.F.C., Kumta,3 whereunder the suit for
injunction filed by the plaintiffs has been dismissed by the
Trial Court and affirmed by the First Appellate Court.
3. The parties herein are referred to as per their
ranking before the Trial Court for the sake of
convenience.
Hereinafter referred to as the 'CPC'
Hereinafter referred to as the 'First Appellate Court'
Hereinafter referred to as the 'Trial Court'
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4. The relevant facts necessary for consideration
of the present appeal are that the plaintiffs claiming to be
in permissive possession of the suit property and the
parties being close relatives filed a suit for injunction.
5. The defendants entered appearance and
contested the suit denying the case of the plaintiffs. It is
specifically contended that the plaintiffs were entrusted
with the suit property to look after the same as a
caretaker and they illegally got their name entered in the
tax register. Hence, the defendants sought for dismissal
of the suit.
6. The Trial Court, upon appreciation of the oral
and documentary evidence on record, has recorded the
following findings:
"38. Considering the plaint allegations it is
sufficiently clear that, the original plaintiff was only
managing and looking after the suit property and
the original plaintiff was never been permitted to
occupy the suit property by the predecessor in title
of the defendants. The original plaintiff was only the
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care taker of the suit building and hence he was
entrusted to manage the suit property in view of the
trust which the deceased Narahari had reposed on
the original plaintiff. Hence it can be said that the
possession of suit shop never been delivered to the
plaintiff and neither the original plaintiff nor the
present plaintiffs ever been in possession of suit
shop.
39. The protection of the court can be
granted or extended to the person who was valid
subsisting rent agreement, lease agreement or
license agreement in his favour. The Ruling cited
supra is aptly applicable to the present set of facts
for the reason that, in the present case also the
plaintiff has acted as caretaker for taking care of the
properties. Hence however long duration he was
managing the properties, that does not protect his
right. The plaintiff is not even the trespasser to the
suit shop .
40. Now from the oral and documentary
evidence placed on record it can be concluded that
original plaintiff at no point of time was in
possession of suit shop. When original plaintiff
himself was not possession of suit shop, the
question of plaintiff No.1(a) continuing the
possession of suit shop does not arise. The ratio laid
down in the ruling relied by the plaintiff could have
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been applied had the plaintiffs proved their
possession over the suit shop."
(emphasis supplied)
7. The Trial Court while recording the said
findings, has relied on the judgment of the Hon'ble
Supreme Court in the case of A.Shanmugam vs. Ariya
Kashatriya Rajkula Vamsathu Madalaya Nandhavan
Paripalanai Sangam Represented by its President
and Others4.
8. The First Appellate Court upon an re-
appreciation of the oral and documentary evidence on
record, has recorded the following findings:
"20. These admissions of PW-1 goes to show that,
the G.P.A. was given by Narahari Raikar only in
favour of grandfather of the present plaintiff.
Narahari Raikar died in the year 1982 and along
with the said G.P.A. expired. Thereafter, there is no
document executed in favour of any persons either
to the father of present plaintiff or the plaintiff
himself. There is clear admission by PW-1 that, only
(2012) 6 SCC 430
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on the oral assurance of Narahari Raikar the
grandfather of present plaintiff was looking after the
property and managing it. No G.P.A. is executed in
favour of the plaintiff or present plaintiff. Hence, he
says that, even without any written Power given to
them, they are continuing the possession of the suit
property in the said shop. There is clear admission
that, this plaintiff is having one shop which was
taken on lease since the time of his father and after
the death of his father, he is continuing as a tenant
in the said shop. He is paying rent to the said shop
where he is running his electric item business. The
present suit shop is not used for business purpose
but the contention of the plaintiff is that he had
stocked his materials in the said portion in the said
shop since several years. Since the year 2000
defendant no.4 is using the entire suit premises as
his godown to stock his rice as he is a rice merchant
and he is paying the tax to the said entire building
including the suit shop. There is admission by PW-1
that, he has never paid tax to the Municipality after
the death of his father. Upon going through the
evidence of PW-1, it is clear that, not even a single
document is coming forth on behalf of the plaintiff
to show that the suit property was handed over to
the possession of his father on the assurance of
Narahari Raikar at any point of time. Only based on
the exparte commission made after filing the suit
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that too without giving notice to the defendants the
plaintiff tried to prove that he was in possession of
the suit property as on the date of the suit. The
defendant has totally denied this aspect and stated
that, the shop premises was kept under lock after
Kadekodi was vacated from the shop and as the
plaintiff had lock and key of the said shop, he had
kept some items in the said shop and got exparte
commission from the Court. Based on this aspect,
he is trying to prove his possession.
21. I have gone through the entire judgment
of the Lower Court wherein the Lower Court has
discussed about the evidence of PW-1, DW-1 and
the documents produced by both the parties. The
Lower Court has rightly come to the conclusion that
the plaintiff has failed to prove the possession by
way of any documentary evidence. It has clearly
discussed that, Narahari Raikar allowed the father
of original plaintiff to manage the property, to
collect the rent and income from his property as he
was permanent resident of Hubli. Narahari Raikar is
the close relative of the plaintiff. According to the
original plaintiff, because of his agreeing to manage
the suit properties, suit shop no.517 was given to
the use and occupation of the plaintiff and it is
contended that, Narahari Raikar had orally promised
that he will not cause any inconvenience or trouble
to the original plaintiff in his possession and
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enjoyment of the suit shop. Hence, the Lower Court
has clearly held that, the original plaintiff was
managing and lookingafter the suit property and he
was never permitted to occupy the suit property by
the predecessor in title of the defendants. The
original plaintiff was only care taker of the suit
building who was entrusted to manage the suit
property in view of the trust reposed by Narahari
Raikar on the original plaintiff. Hence, the Lower
Court has decided that the possession of the suit
shop never been delivered to the plaintiff and
neither the original plaintiff nor the present plaintiffs
ever been in possession of suit shop. Based on the
citation relied upon by the Advocate for the
defendant reported in 2012(2) SCCR (2), the Lower
Court has decided that he is only the care taker of
the premises and he cannot acquire any right."
(emphasis supplied)
9. Although the learned counsel for the appellants
has vehemently contended that the plaintiffs cannot be
dispossessed without due process of law, in view of the
concurrent findings recorded by both the Courts that
there is no document produced on behalf of the plaintiffs
to show that the suit property was handed over to the
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possession of their father and having regard to the settled
position of law as noticed by both the Courts as laid down
by the Hon'ble Supreme Court in the case of
A.Shanmugam4, the appellants/plaintiffs have failed in
demonstrating that the concurrent findings recorded by
both the Courts are in any manner erroneous and
contrary to any oral or documentary evidence on record.
10. Hence, the appellants have failed in
demonstrating that any substantial question of law arises
for consideration in the above appeal.
11. In view of the aforementioned, the above
appeal is dismissed as being devoid of merit at the stage
of admission itself.
Sd/-
JUDGE
SH
CT:GSM
