Karnataka High Court
Sri Umesh vs Sri T J Basavaraju on 8 November, 2024
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RSA No. 1596 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
REGULAR SECOND APPEAL NO. 1596 OF 2017 (EA)
BETWEEN:
1. SRI UMESH ALIAS N. UMESHA S/O. LATE NINJAIAH
DEAD BY HIS LRS.,
1A. MAMATA W/O. LATE UMESHA
AGED ABOUT 45 YEARS,
1B. MANOJ U S/O. LATE UMESHA
AGED ABOUT 17 YEARS,
BOTH ARE RESIDENT OF NO.40-1,
ARALIMARADAPALYA, SIRA GATE, TUMKUR.
... APPELLANTS
(BY SRI. M. V. V. RAMANA AND SRI N. SURESH, ADVOCATES)
AND:
1. SRI. T J BASAVARAJU S/O. B S JAYASHANKAR,
AGED ABOUT 40 YEARS,
2. SRI. T J ANIL KUMAR S/O. B S JAYASHANKAR,
Digitally signed by
MAHALAKSHMI B M AGED ABOUT 34 YEARS,
Location: HIGH R/AT DOOR NO.4, SHANKARAPPA COMPOUND,
COURT OF 4TH CROSS, SIDDAGANGA EXTENSION,
KARNATAKA TUMKURU CITY-572106.
... RESPONDENTS
(R1- NOTICE SERVED;
SMT.NALINI K, ADVOCATE FOR SRI. S. K. VENKATA REDDY,
ADVOCATE FOR C/R2)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 30.5.2017 PASSED IN RA
NO.18/2016 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE
AND JMFC, TUMAKURU, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DATED 9.11.2015 PASSED IN OS
NO.1151/2013 ON THE FILE OF THE I ADDL. CIVIL JUDGE AND JMFC,
TUMKUR.
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RSA No. 1596 of 2017
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
ORAL JUDGMENT
The defendant is before this Court in this regular
second appeal assailing the judgment and decree in R.A.
No.18/2016 dated 30.05.2017 on the file of the II
Additional Senior Civil Judge and JMFC, Tumakuru
(hereinafter referred to as the 'First Appellate Court' for
short), whereby, the suit of the plaintiffs for eviction was
decreed directing the defendant to vacate the suit
property, by reversing the judgment and decree dated
09.11.2015 in O.S.No.1151/2013 on the file of the I
Additional Civil Judge and JMFC, Tumakuru (hereinafter
referred to as the 'Trial Court' for short).
2. This Court while admitting the appeal has
framed the following substantial questions of law on
23.04.2018;
"i) Whether the conclusion of the Lower Appellate
Court that the plaintiffs being co-owners of suit
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scheduled property could file eviction suit while there
are said to be in joint possession of the suit schedule
property under Hindu law is correct?
ii) Whether the First Appellate Court was in error in
reversing the judgment and decree of the trial Court?"
3. Learned counsel Sri.M.V.V. Ramana and learned
counsel Sri.N. Suresh appearing for the appellants and
learned counsel Smt.Nalini K., for learned counsel
Sri.S.K.Venkata Reddy appearing for the respondent have
been heard on the substantial questions of law framed by
this Court.
4. Brief facts of the case are that;
Suit for eviction, the case of the plaintiffs is that the
suit property is the joint family property of plaintiffs and
their father B.S.Jayashankar, having received under the
partition effected on 06.02.1999 between the father of the
plaintiffs and his brothers and accordingly, the katha of
the suit property stands in the name of father of the
plaintiffs. That during the lifetime of the defendant's
father-Nanjaiah, the plaintiff's father let out the suit
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property on a monthly rent of Rs.15/-, and during the
lifetime of the father of the defendant, he was paying rent
to the father of the plaintiffs. After the death of father of
defendant Nanjaiah, the defendant continued as a tenant
in the suit property, but was irregular in paying the rents
and hence, plaintiffs father, demanded the defendant to
vacate the suit premises, having failed to vacate the
premises, legal notice of termination was issued to the
defendant, which remained unclaimed and hence, the suit
for eviction.
5. Suit summons were issued to the defendants,
as the notice could not be served in usual course,
substituted service by way of paper publication was taken,
defendant remained absent and hence, was placed
ex-parte.
6. Plaintiff No.1 examined himself as PW.1 and
marked documents at Ex.P.1 to Ex.P.13 and accordingly,
the trial Court on considering the material, oral and
documentary evidence arrived at a conclusion that the suit
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property is standing in the name of Jayashankar, who is
the father of the plaintiffs and the plaintiffs have not
produced any material to show that they are the owners of
the suit property and dismissed the suit of the plaintiffs on
the ground of locus-standi.
7. Aggrieved the plaintiffs preferred appeal before
the First Appellate Court. The First Appellate Court, while
appreciating the entire oral and documentary evidence,
independently, arrived at a conclusion that the suit by a
co-owner is maintainable and it is not necessary for the
co-owner to take consent of other co-owner and reversed
the judgment and decree of the trial Court, decreeing the
suit of the plaintiffs directing the defendant to hand over
the vacant possession of the suit property within three
months from the date of the order. Aggrieved, the
defendant is before this Court.
8. Learned counsel appearing for the appellant
vehemently contends that the conclusion arrived by the
First Appellate Court that the plaintiffs being the co-owner
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of the suit property could file a eviction suit, is
unsustainable and contrary to the settled propositions of
law.
9. Learned counsel submits that the appellant has
filed I.A. No.1/2018 for production of additional
documents, which is a sale agreement entered into
between the defendant's father and father of the plaintiffs
on 04.05.1981 and under the sale agreement, the
plaintiffs' father has received the entire amount and
handed over possession of the suit property, that the
father of the defendant is in possession of the suit
property even prior to the sale agreement. Learned
counsel submits that the said agreement has a material
bearing on the decision of the case and will be a
substantial question of law, and the appellant be permitted
to produce the said agreement, which has direct bearing
on the right of the appellant. In support of his
contentions, learned counsel placed reliance on the
following decisions:
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i. Chandrabhan (Deceased) Through Lrs. and
others Vs. Saraswati and others1
ii. Pankaj Bhargava and another Vs. Mohinder
Nath and another2.
10. Further it is submitted by the learned counsel
for the appellant that the trial Court and the first Appellate
Court have not followed the correct procedure relating to
service of summons on the defendant and thereby,
violated the principles of natural justice.
11. Per contra, learned counsel appearing for the
respondents justified the judgment and decree of the First
Appellate Court and submits that, the defendant was in
possession of the suit property as a tenant, the trial Court
has erroneously dismissed the suit of the plaintiffs on the
ground that a co-owner could not maintain the suit
contrary to the settled proposition of law that one of the
co-owners can file a suit for eviction of a tenant in the
(2022) SCC Online SC 1273
(1991) 1 SCC 556
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property generally owned by the co-owners and the First
Appellate Court has rightly appreciated and held that the
suit of the plaintiff is maintainable and rightly directed the
defendant to vacate the suit property.
12. Learned counsel submits that the notice was
duly served on the defendant and the defendant has
willfully not made his presence neither before the trial
Court nor before the First Appellate Court and he was a
fence watcher and the defendant has totally abused the
process of law and for the first time, before this Court, he
cannot contend that an opportunity was not been given to
the defendant to substantiate his contentions. It is
submitted that the contentions raised by the appellant
regarding the procedure relating to service of summons, is
not available to be raised in the second appeal and seek to
set aside the order of the trial Court. That the alleged
agreement sought to be produced under I.A.No.1/2018, is
not a material document to be considered in the present
second appeal, as the agreement is of the year 1981 and if
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the appellant wants to contend that he is an agreement
holder, there is no suit filed by the appellant seeking
specific performance of contract and in the absence of the
same, the documents sought to be produced is not
relevant for adjudication of dispute on hand. The
arguments advanced by the appellant's counsel apart from
the substantial question of law, is not a question of law to
be considered by this Court.
13. This Court has carefully considered the rival
contentions urged by the learned counsel for the parties
and perused the material on record.
14. Suit by one of the co-owner for eviction, the
plaintiffs contended that the suit properties stands in the
name of Jayashankar, who is none other than the father of
the plaintiffs as is evident from Ex.P13, under which
document, the suit property fell to the joint share of the
plaintiffs and their father Jayashankar. The Trial Court
though arrived at a finding that the suit property standing
in the name of Jayashankar, who is the father of the
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plaintiff and the suit property having fallen to the share of
father of the plaintiffs, however, goes to the extent of
holding that the plaintiffs have not placed any material to
show that they are the owners of the suit property and the
plaintiffs have no locus-standi to file the present suit
against the defendant seeking eviction, contrary to the
settled proposition of law that one of the co-owner can file
a suit for eviction of a tenant in the property generally
owned by the co-owners. The Apex Court in the case of
Mohinder Prasad Jain Vs. Manohar Lal Jain3 has
observed that a suit filed by a co-owner, thus, is
maintainable in law, it is not necessary for the co-owner to
show before initiating the eviction proceedings before the
Rent Controller that he had taken option or consent of the
other co-owners. However, in the event, a co-owner
objects thereto, the same may be a relevant fact. The
Apex Court at paragraph Nos.10 and 11 held as under:
AIR 2006 SC 1417
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"10. This question now stands concluded by
a decision of this Court in India Umbrella
Manufacturing Co. & Ors. v. Bhagabandei
Agarwalla (Smt.) & Ors. [(2004) 3 SCC 178]
wherein this Court opined:
"Having heard the learned counsel for
the parties we are satisfied that the appeals
are liable to be dismissed. It is well settled
that one of the co-owners can file a suit for
eviction of a tenant in the property generally
owned by the co-owners. (See Sri Ram
Pasricha v. Jagannath [(1976) 4 SCC 184]
and Dhannalal v. Kalawatibai [(2002) 6 SCC
16], SCC para 25.) This principle is based on
the doctrine of agency. One co-owner filing a
suit for eviction against the tenant does so on
his own behalf in his own right and as an
agent of the other co-owners. The consent of
other co-owners is assumed as taken unless
it is shown that the other co-owners were not
agreeable to eject the tenant and the suit
was filed in spite of their disagreement. In
the present case, the suit was filed by both
the co-owners. One of the co-owners cannot
withdraw his consent midway the suit so as
to prejudice the other co-owner. The suit
once filed, the rights of the parties stand
crystallised on the date of the suit and the
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entitlement of the co-owners to seek
ejectment must be adjudged by reference to
the date of institution of the suit; the only
exception being when by virtue of a
subsequent event the entitlement of the body
of co-owners to eject the tenant comes to an
end by act of parties or by operation of law."
11. A suit filed by a co-owner, thus, is
maintainable in law. It is not necessary for the co-
owner to show before initiating the eviction
proceedings before the Rent Controller that he had
taken option or consent of the other co-owners.
However, in the event a co-owner objects thereto,
the same may be a relevant fact. In the instant
case, nothing has been brought on record to show
that the co-owners of the respondent had objected
to eviction proceedings initiated by the respondent
herein. The submission of the learned counsel for
the appellant to the effect that before initiating the
proceedings, the respondent was required to show
that he had experience in running the business in
Ayurvedic medicines, has to be stated to be
rejected. There is no law which provides for such a
precondition. It may be so where a licence is
required for running a business, a statute may
prescribe certain qualifications or preconditions
without fulfilment whereof the landlord may not be
able to start a business, but for running a
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wholesale business in Ayurvedic medicines, no
qualification is prescribed. Experience in the
business is not a precondition under any statute.
Even no experience therefor may be necessary. If
the respondent has proved his bona fide
requirement to evict the appellant herein for his
own purpose, this Court may not, unless an
appropriate case is made out, disturb the finding of
fact arrived at by the Appellate Authority and
affirmed by the High Court."
15. Perusal of the said decision, the law is well
settled that a co-owner has a right to file a suit for eviction
against the tenant and only if a co-owner objects then the
maintainability of the suit would be a relevant fact. A co-
owner is as much an owner of the property as any sole
owner of a property is. The Apex Court way back in the
year 1976 in the case of Sri Ram Pasricha Vs.
Jagannath and others4 has held at paragraph No.27 as
under:
"27. Jurisprudentially it is not correct to say
that a co-owner of a property is not its owner. He
owns every part of the composite property along
(1976) 4 SCC 184
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with others and it cannot be said that he is only a
part-owner or a fractional owner of the property.
The position will change only when partition takes
place. It is, therefore, not possible to accept the
submission that the plaintiff who is admittedly the
landlord and co-owner of the premises is not the
owner of the premises within the meaning of
Section 13(1)(f). It is not necessary to establish
that the plaintiff is the only owner of the property
for the purpose of Section 13(1)(f) as long as he is
a co-owner of the property being at the same time
the acknowledged landlord of the defendants."
16. The Apex Court in the case of FGP Limited Vs.
Saleh Hooseini Doctor and another5 2009 SCC Online
SC 1643 has held at paragraph No.37 and 44 as under:
"37. It has been urged by the learned
counsel for the appellant that in the suit which has
been filed by the respondents they have not
asserted that they are filing it as co-owners but
they have claimed that they are filing it as
executors/executrix. So they cannot now meet the
challenge of maintainability of the suit on the
ground that it was filed by the respondents as co-
owners. It is not possible to accept the aforesaid
contention in the facts of this case. This Court is of
(2009) 10 SCC 223
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the opinion that if the status of the respondents as
co-owners of the property transpires clearly from
the admitted facts of the case, they cannot be
denuded of the said status at the instance of some
objections by the tenants. Normally, a tenant's
right to question the title of a landlord is very
limited in view of the rule of law which is codified in
Section 116 of the Evidence Act.
44. The principles which have been affirmed
in Mohinder Prasad Jain are that one co-owner
filing a suit for eviction against the tenant does so
on his own behalf in his own right and as an agent
of the other co-owners. In this matter, the consent
of the other co-owners is assumed as taken unless
it is shown that the other co-owners were not
agreeable to eject the tenant and the suit was filed
in spite of their disagreement. (See para 10, p. 727
of the Report.) It is nobody's case here that the
other co-owners are objecting to the filing of the
suit in question."
17. The law being settled that one of the co-owner
can alone maintain a suit for ejectment of the tenant and
it is not open for the tenant to question the maintainability
of the suit on the ground that the other co-owners were
not joined as parties to the suit.
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18. In the instant case, the plaintiffs are co-owners,
which is undisputed by the appellant in the present appeal.
The substantial question of law raised by this Court is
answered holding that the plaintiffs being co-owners of the
suit property could file eviction suit and the First Appellate
Court was justified in decreeing the suit of the plaintiffs for
eviction.
19. Regarding the suit summons not properly
served on the defendant, this Court has looked into the
order sheet of the trial Court which indicates that the suit
summons was ordered on 07.12.2013 through RPAD. On
24.02.2014, the suit summons returned as not-served.
Again the suit summons was ordered through RPAD.
Further on 09.04.2014, the notice was again returned as
not-served on the defendant and hence, steps were
directed to be taken. Pursuant to which on 28.06.2014,
suit summons was again ordered to the defendant by
RPAD and the summons was received back stating
unserved, on 15.07.2014, the summons were reissued, it
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is only on 25.04.2015 after taking suit summons on the
defendant for nearly three times, an application came to
be moved under Order V Rule 20(1a) of CPC, seeking
paper publication and consequently, the application was
allowed and paper publication was ordered. On
06.07.2015, memo along with the paper publication was
filed and the defendant was called out and suit summons
to defendant was held to be served through paper
publication and service was held sufficient placing him
ex-parte.
20. As indicated above, perusal of the order sheet
clearly reveals that the Trial Court has adopted correct
procedure relating to service of summons on the
defendant and there is no violation of principles of natural
justice.
21. Even before the First Appellate Court, the
defendant was placed ex-parte, the appellant is unable to
substantiate before the Court that when before the trial
Court and the First Appellate Court, he was placed ex-
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parte, how this regular second appeal is filed well within
time and it is necessary to state here that the defendant
was a fence watcher and only the decree was passed
against him, he comes to this Court in this second appeal
stating that there is a sale agreement in his favour
executed by Jayashankar in the year 1981, the agreement
is only on a paper and the appellant has not made any
efforts to seek for execution of the alleged agreement,
making this Court to form an opinion that the appellant is
trying to protract the proceedings initiated by the land
lord. The decision placed reliance by the learned counsel
appearing for the appellant is distinguishable and not
applicable to the present facts. This is a perfect case
where this Court finds that the appellant has abused the
process of law and imposition of cost is a must in such
proceedings.
22. Learned counsel though tries to contend before
this Court that Jayashankar has executed an agreement of
sale in favour of the appellant's father in the year 1981, it
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is relevant to state here that seeking to execute the
agreement of sale, the defendant/ appellant has not filed
any suit for specific performance of contract. Therefore,
the application-I.A.No.1/2018 filed by the appellant
seeking to adduce additional evidence needs to be out
rightly rejected and accordingly, I.A.No.1/2018 is rejected.
Accordingly, this Court pass the following:
ORDER
(i) The Regular Second Appeal is hereby
dismissed with cost of Rs.50,000/-
payable to the Legal Services Authority,
within four weeks, failing to pay the cost,
the State to recover the same as a land
revenue.
(ii) The Judgment and Decree of the First
Appellate Court stands confirmed.
Sd/-
_____________________
(JUSTICE K.S. HEMALEKHA)
PJ
