Karnataka High Court
Sri Shabir Hussain S/O Rasool Khan vs Sri P Ramadas Kamath on 29 May, 2024
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RFA No. 1574 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 1574 OF 2007 (DEC)
BETWEEN:
SRI SHABIR HUSSAIN,
AGED ABOUT 58 YEARS,
S/O RASOOL KHAN,
R/AT HANUMAN GALLI,
BALEHONNUR, N.R. TALUK,
CHICKMAGALORE DIST.-577 112.
...APPELLANT
(BY SRI N SHANKARANARAYANA BHAT, ADVOCATE)
AND:
1. SRI P RAMADAS KAMATH,
SINCE DECEASED BY PROPOSED
LEGAL REPRESENTATIVES.
(a) SMT. SHANTHA KAMATH,
Digitally AGED ABOUT 65 YEARS,
signed by W/O LATE P RAMADAS KAMATH,
NANDINI R COFFEE PLANTER,
Location: R/AT GORIGUNDI,
High Court of SANGAMESHWARAPETE POST,
Karnataka CHIKKAMAGALAURU TALUK & DISTRICT.
(b) SRI SANJAYA KAMATH,
AGED ABOUT 35 YEARS,
S/O LATE P RAMADAS KAMATH,
COFFEE PLANTER,
R/AT GORIGUNDI,
SANGAMESHWARAPETE POST,
CHIKKAMAGALURU TALUK & DISTRICT.
(c) SMT. SUDHA JOSHI,
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RFA No. 1574 of 2007
AGED ABOUT 40 YEARS,
W/O DR. JOSHI,
D/O LATE P RAMADAS KAMATH,
OPP: S.J ARCADE,
KARKALA-574 104 (D.K).
2. SRI P GANAPATHI KAMATH,
SINCE DECEASED BY PROPOSED
LEGAL REPRESENTATIVES.
(a) SMT. SHALINI KAMATH,
AGED ABOUT 60 YEARS,
W/O LATE P GANAPATHI KAMATH,
R/AT MAIN ROAD,
BALEHONNUR-577 112,
N.R. PURA TALUK,
CHIKKAMAGALURU DISTRICT.
(b) SRI ROHAN KAMATH,
AGED ABOUT 35 YEARS,
S/O LATE P GANAPATHI KAMATH,
R/AT MAIN ROAD,
BALEHONNUR-577 112,
N.R. PURA TALUK,
CHIKKAMAGALURU DISTRICT.
(c) SMT. ASWANI KAMATH,
AGED ABOUT 33 YEARS,
D/O LATE P GANAPATHI KAMATH,
R/AT MAIN ROAD,
BALEHONNUR-577 112,
N.R. PURA TALUK,
CHIKKAMAGALURU DISTRICT.
...RESPONDENTS
(BY SRI D.R SUNDARESH, ADVOCATE FOR LR'S OF DECEASED
R1 & R2 )
THIS RFA IS FILED U/S 96 OF CPC AGAINST THE
JUDGEMENT AND DECREE DATED 13.04.2007 PASSED IN
OS.NO.37/2000 ON THE FILE OF THE CIVIL JUDGE (SR.DN.)
AND PRL.JMFC., TARIKERE, DECREEING THE SUIT FOR
DECLARATION.
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RFA No. 1574 of 2007
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
30.01.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the judgment and decree dated
13.04.2007 passed in O.S.No.37/2000 by the learned Civil
Judge (Sr.Dn.) and Prl. JMFC, Tarikere, the defendant has
approached this Court in appeal.
2. The parties would be referred to as per their
ranks before the trial Court for the sake of convenience.
3. Brief facts of the case of the plaintiffs are as
below:
The plaintiffs-P.Ramadas Kamath and P.Ganapathi
Kamath approached the trial Court seeking a relief of
declaration that they are the absolute owners of the plaint
schedule house property; for vacant possession of the
same; arrears of rent accrued from September-1998 to
December-1999 amounting to Rs.6,400/- and for damages
for illegal occupation of the suit premise by the defendant
till the possession is handed over to them. The suit
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property is described to be a dwelling house with
appertaining open space situated at Balehonnuru Town of
B.Kanabur Village, Panchayat No.242/97-98 bounded by
V.P.Road on East, building site belonging to Dayananda on
West, house No.241/15 and vacant land of the plaintiffs on
the North and South.
4. In the plaint, it was contended that the suit
property belonged to one K.P.Mukund Prabhu and it was
held by the father of the plaintiffs-Lakshmana Kamath on
permanent leasehold rights. Later, the said Mukund
Prabhu executed his last Will dated 16.05.1975 and a
registered codicil dated 31.01.1986 bequeathing the suit
schedule property and some other non-agricultural
properties to the plaintiffs. Therefore, the plaintiffs are the
absolute owners of the suit schedule property. It was
alleged that the defendant is in occupation of the suit
schedule house on a monthly rent of Rs.400/- and since
the defendant failed to pay the agreed rent since
September-1998, they were constrained to issue a legal
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notice dated 02.08.1999 terminating the tenancy and
calling upon the defendant to vacate and handover vacant
premises of suit schedule property and to pay the arrears
of the rent. Despite receiving the said notice, it was
neither replied nor complied by the defendant and
therefore, the plaintiffs filed the suit before the trial Court
for the above said reliefs.
5. After service of summons, the defendant
appeared before the trial Court through his counsel and
filed written statement.
6. The defendant denied that father of the
plaintiffs-Lakshmana Kamath was a permanent lessee of
the suit schedule property and also denied that
K.P.Mukund Prabhu had executed the Will or the codicil
bequeathing the suit schedule property to the plaintiffs. He
also denied that he was the tenant in occupation of the
suit schedule property on a monthly rent of Rs.400/- and
that he had defaulted in paying the rents. Inter alia, it was
contended that he had replied to the notice issued by the
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plaintiffs. He set up a contention that the suit schedule
property belonged to one T.V.Rama Rao and the defendant
has taken the suit schedule property on lease from
T.V.Rama Rao and his son Sathyanarayana on the basis
oral agreement to pay a rent of Rs.450/- per month, about
10 years back. It was contended that the property stood in
the name of Seethamma W/o Rama Rao and she was
paying the taxes through the defendant. Therefore,
contending that the suit is barred by time and that the
plaintiffs do not have any title to the property, sought
dismissal of the suit. In para 9 of the written statement, it
was contended that the defendant has acquired the title by
long possession and enjoyment of the property with the
consent of the real owners and as such, the suit is liable to
be dismissed.
7. On the basis of the above pleadings, the trial
Court framed the following issues:
"1. Whether the plaintiffs prove that they are the
absolute owners of the suit schedule property?
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2. Whether the plaintiffs prove that the defendant is
in the occupation of the suit schedule property on
monthly tenancy of Rs.400/-?
3. Whether the plaintiffs prove that the defendant is
in arrears of rent payable from September 1998 to
December 1999, amounting to Rs.6,400/- and he is
entitled to recover the same?
4. Whether the plaintiffs prove that the tenancy of the
defendant has been terminated by issuance of
registered legal notice dt. 02.08.1999?
5. Whether the plaintiffs prove that they are entitled
to have vacant possession of the suit schedule
property from the defendant?
6. Whether the plaintiffs prove that they are entitled
for mesne profits?
7. Whether the defendant proves that one
Sathyanarayana Kamath S/o T.V.Rama Rao of
Balehonnur is the owner of the suit schedule
property and he has taken the said property from
his on lease, agreeing to pay the rent of Rs.450/-
per month?
8. Whether the defendant proves that the khata of
the suit schedule property is standing in the name
of one Seethamma W/o Rama Rao?
9. To what decree or order the parties are entitled
to?"
8 In order to prove their case, plaintiff No.2 was
examined as PW.1 and Exs.P1 to P11 were marked in
evidence. The defendant was examined as DW.1 and one
Sathyanarayana was examined as DW.2 and EXs.D1 to 8
were marked in evidence.
9. After hearing both the sides, the trial Court
answered issue Nos.1 to 6 in the affirmative and issue
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Nos.7 and 8 in the negative and decreed the suit as
prayed by the plaintiffs.
10. The said judgment and decree is challenged
by the defendant in this appeal.
11. On issuance of notice, respondents/plaintiffs
appeared before this Court through their counsel. During
the pendency of this appeal, both the respondents died
and their legal heirs are brought on record.
12. On admitting the appeal, the trial Court records
have been secured and heard the arguments by learned
Counsel Sri.N.Shankar Narayana Bhat for the appellant
and Sri D.R.Sundaresh, for the LRs of respondents.
13. The learned counsel appearing for the appellant
would argue that none of the documents produced by the
plaintiffs would show their title to the suit schedule
property. It is submitted that there is absolutely no
evidence to show that there exists a relationship of
landlord and tenant and the trial Court was not justified in
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holding that the appellant was the tenant. It is contended
that the will or the codicil is not proved as required under
law and that there is no documentary evidence which
would show the title of the suit schedule property. It is
submitted that the trial Court depended upon the tax
demand extracts which could not have been the
documents of title. The defendant specifically contended
that the suit schedule property belonged to Seethamma
and DW.2 in categorical terms stated that he had allowed
the appellant to stay as a tenant. Therefore, the trial Court
erred in law in not taking into consideration that in the
absence of relationship of the landload and tenant
between the parties, the Court below gets no jurisdiction
to pass an order of ejectment. He submits that in Ex.P5, in
the certified copy of the lease deed executed by
K.P.Mukund Prabhu, there is no whisper about the village-
B.Kanabur but the plaint says the suit property is in
B.Kanabur. He pointed out the discrepancies in the
description of the property in Ex.P5, the plaint, the
revenue records to submit that there is no nexus between
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them. Therefore, he has sought for dismissal of the suit by
allowing the appeal.
14. Per contra, learned counsel appearing for the
respondents has submitted as well as by filing written
arguments that even in the absence of the Will, the
plaintiffs are the owners of the suit schedule property as
they inherited the permanent leasehold rights through
Ex.P5. They being sons of Lakshmana Kamath are entitled
for all the rights, title and interest held by Lakshmana
Kamath under Ex.P5. It is submitted that the defendant as
well DW.2-Sathyanarayana do not explain how
Seethamma W/o T.V.Rama Rao acquired the title over the
suit schedule property and the panchayat records
produced by the plaintiffs show the name of the plaintiffs
or their predecessors for long time much prior to the filing
of the suit. It is submitted that the description of the
property acquired by Seethamma and T.V.Rama Rao is
totally different as admitted by DW.2 in the cross-
examination. Moreover, the defendant has made a feeble
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attempt to claim adverse possession without admitting the
title of the plaintiffs or DW.2. Therefore, the rule of
preponderance of probability would indicate that the
plaintiffs have better title than that of the defendant and
DW.2; they having failed to show how they had acquired
title over the property. Therefore, the trial Court was
justified in rejecting the testimony of DWs.1 and 2 and in
decreeing the suit.
15. After hearing the arguments, the points that
arise for consideration in this appeal are as below:
i) Whether the plaintiffs have proved their title over
the suit schedule property?
ii) Whether the defendant has established that the
suit schedule property was belonging to
Sathyanarayana S/o T.V.Rama Rao and
Seethamma and he was a tenant under them?
iii) Whether the trial Court is justified in holding that
the plaintiffs are entitled for the arrears of the rent
and mesne profit?
Re. Point Nos.1 and 2:
16. The plaintiffs claimed their title over the suit
schedule property on the basis of the codicil as well as the
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lease deed, which are at Exs.P4 and P5. As contended by
the defendant, the codicil is not proved by examining the
attesting witnesses to the same. However, it is relevant to
note that the Ex.P4 mention that P.Mukund Prabhu was
the owner of non-agricultural, immovable properties of
Balehonnuru Town and he had leased the same to
P.Lakshmana Kamath as moolageni tenant. The date of
the agreement is also mentioned as 29.06.1941. It also
mention that the mooli rights of P. Mukund Prabhu would
devolve upon, the plaintiffs who are the children of
Lakshmana Kamath.
17. Ex.P5, the certified copy of the permanent lease
deed dated 29.06.1941 would show that the house list
No.122, 123, 125 and 126 are described in detail and their
boundaries are also mentioned in the same. It is pertinent
to note that several properties held by P. Ramadas
Kamath was subject matter of the permanent lease in
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favour of Lakshmana Kamath. Obviously, it describes the
boundary by referring to the owners of the adjoining
properties as it existed in the year 1941. It is pertinent to
note that one of the property, mentioned as house list
No.126, describe that on the western side, there is a
Church and the property of one D'souza.
18. Exs.P6 to P8 are the tax assessment register
extracts of B.Kanabur Gram Panchayat of the year 1999-
2000 to 2001-02 pertaining to various properties standing
in the name of P.Ramadas Kamath. The Panchayat
Nos.241, 242, 244 are also the properties held by him
along with several other properties. Exs.P9 and 10 happen
to be the Panchayath Tax Assessment Register Extracts
pertaining to the property No.241 and 242 from the year
1983-84 to 1999-2000. Therefore, there cannot be any
doubt that P.Ramadas Kamath was the owner of the
property, though it was leased to Lakshmana Kamath and
his name appeared in the panchayat records since the
year 1983-84.
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19. Ex.P11 is also the Panchayath Tax Assessment
Register Extract pertaining to the property No.242a,
corresponding to the years 1983-84 to 1994-95 and it
stands in the name of T.V.Rama Rao and after his death
somewhere in the year 1990-1991, it stood in the name of
Seethamma.
20. The documents produced by the defendant at
Exs.D1 to D7 the demand bills by panchayat and tax paid
receipts show that the property number is not properly
mentioned but it was in respect of the property situated at
Hanuman Galli, Balehonnuru. Evidently, they were issued
by the Secretary of B.Kanabur Gram Panchayat. None of
these bills mention the property number. They only
mention the Khata number and bill number. Ex.P8 is a
notice for payment of water bill.
21. In the light of the above documents, if we
examine the ocular evidence of PW.1, it would show that
he categorically admit that there is no documentary
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evidence to show the tenancy agreement with the
defendant. In the cross-examination, it is elicited that he
was paying the taxes on behalf of Ramadas. The
suggestion that the suit property was belonging to Rama
Rao and then, Seethamma is denied by him. It is elicited
that the defendant had paid the rent upto September 1998
but he admit that he do not have any document. There is
nothing which would discredit the testimony of the
witness.
22. The perusal of the ocular evidence of DW.1
would show he do not know how Rama Rao had acquired
the suit schedule property. He says that Sathyanarayana
Kamath had given him the property for rent but he do not
have any document to show the same. He admits the
receipt of the legal notice terminating the tenancy but he
is unable to say whether he had replied it. The notice
received by him, issued by the plaintiffs is marked at
Ex.P2. Regarding the description, he says that on the
North and South, the remaining property belonging to the
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plaintiffs is situated. He pleads ignorance about the
permanent lease deed and the codicil.
23. The evidence of DW.2 would show that he had
given the suit schedule property to the defendant on a
monthly rent of Rs.450/- and it was an oral agreement. In
the cross-examination, it is elicited that he do not know
how Seethamma and Rama Rao had acquired the suit
schedule property. He pleads ignorance as to who is
Mukund Prabhu. He also pleads ignorance about the Will
and codicil executed by the said Mukund Prabhu in favour
of Lakshmana Kamath. He admits that even though he is a
Government Servant, working as an Agricultural Officer,
he had not shown the rental income in the Income Tax
Returns or had declared the suit schedule property as an
asset in the Assets and Liabilities Statement. Regarding
the description, he says that the suit schedule property is
bound by Panchayat Road on the East, Church on the
West, House of Shamshunnisa on the North and a garden
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on the South. Evidently, this property has no semblance of
similarity with the suit schedule property.
24. From the perusal of the above evidence on
record, it is clear that the house Nos.241 and 242 of
Balehonnuru, which is in B.Kanabur Village limits, is
standing in the name of Ramadas Kamath, who is the
plaintiff No.1 since the year 1983-84. The claim of the
plaintiffs that they inherited the permanent lease hold
rights from their father Lakshmana Kamath and later, they
acquired title under a Will and codicil executed by Mukund
Prabhu cannot be disputed, for a better title is not shown
by the defendant. The fact that the name of the plaintiff
No.1 appears in the panchayat records since the year
1983-84 cannot be disputed at all. It is also a fact that
certain properties owned by Mukund Prabhu were leased in
favour of Lakshmana Kamath can also be found from
Ex.P5. One of the property in Ex.P5 is bound by a Church
and evidently, DW.2 speaks of a Church on the South of
the property. It is clear that the property which has a
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Church on the southern side is not the suit schedule
property. Therefore, the evidence of DW.2-
Sathyanarayana, who speaks about the property held by
Rama Rao and Seethamma and which was leased to the
defendant is in respect of the property adjoining a Church
but not the suit schedule property. Therefore, the
defendant cannot get any support from the evidence of
DW.2 to contend that he is in possession of the property
as described by the plaintiffs in the plaint.
25. It is relevant to note that the property which
stands in the name of Rama Rao was bearing Panchayat
No.242a. Ex.P11 clearly shows the same. The defendant
has not produced any document to show how Rama Rao
got the property mentioned in Ex.P11 i.e., property
No.242a. The trial Court had considered this aspect in Para
22 and 23 of its judgment.
26. The above evidence clearly show that the title
over the suit schedule property has the support of Ex.P5
and the argument of the learned counsel for the appellant
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that there is no mention of B.Kanabur in Ex.P5 is not of
much relevance. The panchayat records coupled with
Ex.P5 clearly show that the name of plaintiff No.1 is
appearing in the panchayat records since from 1983-84
and the defendant cannot claim any right, title or interest
over the same. There is absolutely no evidence on record
on behalf of the appellant that the property No.242
belongs to T.V.Rama Rao but it was property No.242a as
mentioned in Ex.P11. The testimony of DW.2 is pertaining
to a different property and his admission in the cross-
examination show his understanding of the suit schedule
property. Therefore, it is clear that the plaintiffs have
better title than DW.2. Obviously the defendant has no
title over the suit schedule property and a feeble attempt
was also made by him to claim adverse possession. When
the defendant did not admit the title of the plaintiffs, it is
not in the mouth of the defendant to claim adverse
possession. Therefore, it is clear that the Rule of
Preponderance of Probability heavily lean in favour of the
plaintiffs.
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27. The trial Court has dealt with the question of
title in detail and has rightly appreciated the ocular as well
as the documentary evidence in the right perspective.
There is no reason to interfere with the findings of the trial
Court on issue Nos.1 and 7 regarding title.
28. In the result, point Nos.1 and 2 are answered in
favour of the plaintiffs/respondents.
Re. Point No.3:
29. Evidently, the suit is for declaration of title and
possession. Though the plaintiffs contended that they are
landlord and the defendant was the tenant, there is no
documentary evidence to show the same. The defendant
contend that he is the tenant under T.V.Rama Rao and
Sathyanarayana (DW.2). DW.2 has stated that he do not
have any document to show the tenancy. The notice
issued by the plaintiffs as per Ex.P2 claiming the
defendant as monthly tenant was not replied by the
defendant. DW.2 is also unable to show that there was any
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rent agreement with the defendant. In fact, DW.2 speaks
of some other property i.e., property No.242a and contend
that the suit property is owned by him. Therefore, the trial
Court held that the tenancy of the defendant under the
plaintiffs is more probable. The conduct of the defendant
in claiming tenancy under DW.2 at one breath and
claiming adverse possession against the plaintiffs in
another breath would render his testimony unbelievable.
Therefore, when he remained silent, without replying to
the legal notice at Ex.P2, the trial Court came to the
conclusion that the defendant is the tenant and answered
issue No.2 in the affirmative. Admittedly, the defendant
has not paid any rent to the plaintiffs. Therefore, the
conclusions reached by the trial Court are based on sound
principles of Law of Preponderance of Probability. The
conduct of the defendant has deprived him of any relief.
The defendant admit that he was the tenant under DW.2
but it was not in respect of suit schedule property.
Therefore, this Court also do not find any reason to
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interfere with the conclusions reached by the trial Court.
Consequently, the point No.3 is answered in the negative.
30. For aforesaid reasons, the appeal is bereft of
any merits. Hence, the following:
ORDER
The appeal is dismissed with cost.
The judgment and decree dated 13.04.2007 passed
in O.S.No.37/2000 by the learned Civil Judge (Sr.Dn.) and
Prl. JMFC, Tarikere is hereby confirmed.
The appellant shall vacate and handover the vacant
possession of suit schedule property within three months
from the date of this judgment.
Sd/-
JUDGE
NR/-
