Karnataka High Court
Sri Aithappa Moolya vs Sri Ganesh Sharma on 29 May, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 166 of 2018
C/W RSA No. 164 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.166 OF 2018 (POS)
C/W
REGULAR SECOND APPEAL NO.164 OF 2018 (POS)
IN REGULAR SECOND APPEAL NO.166 OF 2018:
BETWEEN:
1. SRI AITHAPPA MOOLYA,
S/O LATE SRI. AMMU MOOLYA,
AGED ABOUT 79 YEARS,
R/AT BOOTHALEBETTU HOUSE,
BALTHILA VILLAGE, BARIMARU POST,
BANTWAL TALUK-574 253.
...APPELLANT
(BY SRI VINAY N., ADVOCATE FOR
SRI MANMOHAN P.N., ADVOCATE)
Digitally signed AND:
by DEVIKA M
Location: HIGH 1. SRI GANESH SHARMA,
COURT OF
KARNATAKA AGED ABOUT 52 YEARS,
S/O LATE SRI. SHANKARA NARAYANA BHAT,
R/AT SOORIKUMERU,
BALTHILA VILLAGE, BARIMARU POST,
BANTWAL TALUK 547 253.
...RESPONDENT
(BY SRI PUNDIKAI ISHWAR BHAT, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 17.10.2017
PASSED IN R.A.NO.26/2013 ON THE FILE OF THE PRL. SENIOR
CIVIL JUDGE AND JMFC, BANTWAL, D.K, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED
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RSA No. 166 of 2018
C/W RSA No. 164 of 2018
10.9.2013 PASSED IN O.S.NO.14/2009 ON THE FILE OF THE
PRL. CIVIL JUDGE AND JMFC, BANTWAL, D.K.
IN REGULAR SECOND APPEAL NO.164 OF 2018:
BETWEEN:
1. SRI AITHAPPA MOOLYA,
S/O LATE SRI. AMMU MOOLYA,
AGED ABOUT 79 YEARS,
R/AT BOOTHALEBETTU HOUSE,
BALTHILA VILLAGE,
BARIMARU POST,
BANTWAL TALUK-574 253.
...APPELLANT
(BY SRI VINAY N., ADVOCATE FOR
SRI MANMOHAN P.N., ADVOCATE)
AND:
1. SRI GANESH SHARMA,
AGED ABOUT 52 YEARS,
S/O LATE SRI. SHANKARA NARAYANA BHAT,
R/AT SOORIKUMERU,
BALTHILA VILLAGE,
BARIMARU POST,
BANTWAL TALUK 547 253.
...RESPONDENT
(BY SRI PUNDIKAI ISHWAR BHAT, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 17.10.2017
PASSED IN R.A.NO.25/2013 ON THE FILE OF THE PRL. SENIOR
CIVIL JUDGE AND JMFC, BANTWAL, D.K, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED
10.9.2013 PASSED IN O.S.NO.14/2009 ON THE FILE OF THE
PRL. CIVIL JUDGE AND JMFC, BANTWAL, D.K.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 166 of 2018
C/W RSA No. 164 of 2018
JUDGMENT
These two appeals are listed for admission. Heard the
learned counsel for the appellant and the learned counsel for the
respondent.
2. The factual matrix of the case of the plaintiff before
the Trial Court is that the plaintiff filed a suit seeking the relief
of possession from the defendant, wherein it is contended that
the defendant is in possession of plaint 'A' schedule property as
per the rent bond dated 10.11.1967 and the plaintiff is entitled
for mesne profits and the said tenancy is validly terminated. On
the other hand, the defendant appeared and made the counter
claim in O.S.No.14/2009 that the plaintiff and his brothers had
agreed to sell the written statement 'A' schedule property for an
amount of Rs.40,000/- on 29.04.2007 by receiving an advance
of Rs.5,000/-. It is contended that the defendant was always
ready and willing to perform his part of contract agreement to
repay the balance amount. The Trial Court having taken note of
the pleadings of the parties, framed the issues as to whether the
defendant is a tenant, whether the tenancy was validly
terminated and is there any sale transaction as contended by
the defendant and whether the defendant was always ready and
willing to perform his part of the agreement. The plaintiff in
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order to prove his case examined the GPA holder as P.W.1 and
other two witnesses as P.W.2 and P.W.3 and examined himself
as P.W.4 and got marked the documents at Exs.P.1 to 10. The
defendant got examined his son as D.W.1 by giving power of
attorney and examined two witnesses as D.W.2 and D.W.3 and
got marked the documents at Exs.D.1 to 31.
3. The Trial Court having considered both oral and
documentary evidence placed on record, answered issue Nos.1
to 3 in the affirmative in coming to the conclusion that the
defendant was a tenant and comes to the conclusion that the
counter claim made by the defendant has not been proved and
hence decreed the suit for recovery of possession against the
defendant and also comes to the conclusion that the plaintiff is
entitled to recover the arrears of rent at the rate of Rs.500/-
from October 2009 till the date of suit. The Trial Court also
directed to handover the possession of schedule premises to the
plaintiff within three months from the date of the order and also
ordered to pay further future mesne profits at the rate of
Rs.500/- per month.
4. Being aggrieved by the said judgment and decree of
the Trial Court, R.A.No.25/2013 and R.A.No.26/2013 are filed by
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the defendant for granting of the relief as sought in the plaint
and also dismissal of the counter claim. Both the appeals are
dismissed on appreciation of both oral and documentary
evidence placed on record by the First Appellate Court.
Aggrieved by the same, these two second appeals are filed
before this Court.
5. The main contention of the learned counsel for the
appellant in both the appeals is that both the Courts have
committed an error in not accepting the case of the appellant.
Though it was an oral agreement, even the brother of the
plaintiff also supported the case of the defendant with regard to
the oral agreement is concerned. Inspite of an amount of
Rs.5,000/- was received as advance, the same was also not
considered by both the Courts. The learned counsel contend
that when the First Appellate Court formulated the point while
considering the appeal with regard to payment of Rs.5,000/- is
concerned, erroneously answered the point for consideration in
the negative. The learned counsel contend that both the Courts
have failed to consider the material on record and appreciate the
same in proper perspective and committed an error in casting
the burden on the defendant to disprove Ex.P.6 i.e., rent bond
by referring it to the handwriting expert and both the Courts
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have traversed beyond the pleadings and issues framed in the
suit. The learned counsel contend that when the Trial Court has
given the finding that the brother of the plaintiff has not been
made as a party for the relief of specific performance, no issue
was framed and without the issue, the said reasoning is given.
Hence, the very approach of the Trial Court and the First
Appellate Court is erroneous.
6. Per contra, the learned counsel for the respondent
would contend that the claim of the appellant is based only on
the oral agreement and there is no documentary proof with
regard to agreeing to sell the property and even for receipt of
Rs.5,000/-. Both the Courts have considered the material on
record and also extracted the admission given by D.W.1 and
D.W.5 during the course of cross-examination with regard to no
documents for having made payment of Rs.5,000/-. The
learned counsel contend that when plea was made that both the
plaintiff and his brother agreed to sell the property, not made
the brother as party to the proceedings. The learned counsel
contend that the brother of the plaintiff is not in good terms with
the plaintiff and hence taken the advantage and examined him.
Both the Courts have not committed any error. The learned
counsel contend that already possession was taken from the
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defendant consequent upon the concurrent finding of the Court
and this Court also not granted any stay and now both the
appeals have become infructuous.
7. Having heard the learned counsel for the appellant
and the learned counsel for the respondent and also considering
the pleadings of the plaintiff and the defendant, no doubt, the
plaintiff has sought for the relief of recovery of possession from
the defendant/appellant. The main contention of the
appellant/defendant before the Trial Court is that there was an
oral agreement and understanding between the parties and the
plaintiff was also having intention to sell the property. Having
considered the said contention of the parties, the Trial Court
also framed the relevant issues and allowed the parties to lead
their evidence. The burden is on the plaintiff to prove with
regard to the relationship between the parties, particularly in
respect of Ex.P.6 rent bond. It is the contention of the
appellant/defendant that there was an oral agreement and the
Trial Court while considering the material on record in respect of
respective contentions, taken note of Ex.P.7 notice issued to the
Surveyor for the advocate of the defendant and extracted the
same in paragraph No.11. The Trial Court also taken note of the
request made with regard to survey the land and also taken
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note of the admission given by D.W.1 in his cross-examination
which is extracted in paragraph No.12. The Trial Court also
taken note of the evidence of D.W.2 brother of the plaintiff, who
has been examined on behalf of the defendant and he has
categorically admitted that the suit schedule property is allotted
in favour of his brother and the said property belongs to his
father and the same was allotted to his brother Ganesh and the
same has been discussed in paragraph No.13. The Trial Court
also taken note of the very legal notice issued by the parties and
relevant pleadings and in paragraph Nos.21 and 22, taken note
of the evidence of power of attorney holder of the defendant
i.e., D.W.1. In paragraph No.22 taken note of Ex.D.4 and clear
admission is elicited that, with regard to the payment of
Rs.5,000/-, there is no any documentary evidence and in
paragraph No.23, a detail discussion was made and rightly
comes to the conclusion that there is no any documentary
evidence with regard to agreeing to sell the property as counter
claim made by the defendant. A detailed discussion was made
with regard to evidence of D.W.1 and D.W.2 and no
documentary evidence with regard to agreeing to sell the
property for valuable consideration of Rs.40,000/- and payment
of Rs.5,000/- as contended by the defendant.
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8. The First Appellate Court on re-appreciation of both
oral and documentary evidence placed on record, taken note of
the very contention of the appellant/defendant in paragraph
No.16 as contended by the defendant before the Appellate
Court. In paragraph No.21 discussed the grounds which have
been urged by the plaintiff/respondent and in detail discussed in
paragraph No.22 with regard to the ownership over the schedule
property as well as the very contention of the counter claim
made by the appellant. The First Appellate Court taken note of
the evidence of D.W.1 and D.W.2 and comes to the conclusion
that there is nothing to show that the parties have agreed the
terms of oral agreement in the presence of D.W.2, who has not
properly supported the case of the defendant, then oral
agreement cannot be accepted. Though several citations are
relied upon, the First Appellate Court comes to the conclusion
taking note of Ex.P.6 rent agreement as well as oral and
documentary evidence and re-appreciated the material on
record. I do not find any error committed by the First Appellate
Court on re-appreciation of both oral and documentary evidence
placed on record. The very contention of the learned counsel for
the appellant that inspite of D.W.2, brother of the plaintiff has
supported the case of the defendant, both the Courts have
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committed an error, cannot be accepted. On the basis of oral
sale agreement, there cannot be any order on specific
performance in the absence of any material regarding sale
transaction and rightly rejected the counter claim made by the
appellant. Both the Courts have taken note of Ex.P.6 and the
same has not been in dispute and rightly directed to deliver the
possession.
9. The learned counsel for the respondent brought to
the notice of this Court that already possession has been taken.
The learned counsel for the appellant also submits that even if
the possession is taken, the appeal will not become infructuous.
There is a force in the contention of the learned counsel for the
appellant, but the material on record is clear that both the
Courts have not committed any error in considering Ex.P.6 and
both oral and documentary evidence placed on record. Both the
Courts have taken note of Exs.D.7 and 10 with regard to the
contention taken by the plaintiff and the defendant and hence
there is no scope for invoking Section 100 of CPC and there is
no substantial questions of law. I do not find any perversity in
the finding of the Trial Court as well as First Appellate Court in
determining the issues involved between the parties and rightly
dismissed the counter claim made by the defendant. No
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grounds are made out to admit the appeals and frame the
substantial question of law.
10. In view of the discussions made above, I pass the
following:
ORDER
Both the appeals are dismissed.
Sd/-
JUDGE
MD
