[Cites 10, Cited by 0]
Karnataka High Court
Smt Leelavathi Acharya vs Smt P Prafulla on 16 December, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1062 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1062 OF 2024 (DEC/POS)
BETWEEN:
1. SMT. LEELAVATHI ACHARYA
W/O PURUSHOTHAMA ACHARYA
AGED ABOUT 70 YEARS
C/O CHANDRA FANCY
PUTTUR-574201
PUTTUR KASABA VILLAGE
PUTTUR TALUK, D.K.DISTRICT.
...APPELLANT
(BY SRI. G. BALAKRISHNA SHASTRY, ADVOCATE)
AND:
SMT. P. PRAFULLA
D/O LATE YUVARAJ
Digitally signed SINCE DEAD BY LRS
by DEVIKA M
Location: HIGH 1. B.N. NAGARAJA SHETTY
COURT OF H/O P. PRAFULLA
KARNATAKA
MAJOR
R/AT VASANTH VIHAR
YUVARAJ COMPOUND
NEAR JAIN TEMPLE
MAIN ROAD, PUTTUR,
D.K.-574 201.
2. SMT. REKHA
W/O SHIVAPRASAD AJILA AND
D/O P. PRAFULLA
MAJOR,
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RSA No. 1062 of 2024
HC-KAR
R/AT ARUHA
ALADANGADY VILLAGE
BELTHANGADI TALUK
D.K.-574 217.
...RESPONDENTS
(BY SRI. KESHAVA BHAT A., ADVOCATE FOR C/R2 &
ALSO VK FILED FOR R1 & R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 11.03.2024.
PASSED IN R.A.NO.9/2020 ON THE FILE OF PRINCIPAL SENIOR
CIVIL JUDGE AND JMFC, PUTTUR TALUK, D.K. DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 01.02.2020 PASSED IN O.S.NO.64/2009 ON THE FILE
OF PRINCIPAL CIVIL JUDGE AND JMFC, PUTTUR, D.K.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
1. This matter is listed for admission. Heard the
learned counsel for the appellant and also the learned
counsel for the respondents.
2. This second appeal is filed against the
concurrent finding. The factual matrix of case of plaintiffs
before the Trial Court in O.S.No.64/2009 while seeking the
relief of declaration to declare that the Mulageni right of
the defendant in respect of the scheduled plot has been
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duly terminated and they have entitled to get joint vacant
possession of the suit schedule property plot after
dismantling the building therein and to direct the division
of schedule plot into two equal shares by metes and
bounds. It is urged that the grandfather of the 2nd plaintiff
i.e., father's father, late Brahmayya Shetty was the owner
of the plaint 'A' schedule property bearing Sy.No.127/5A
measuring 0.05 acres situated at Puttur kasaba Village,
Puttur Taluk. The late Brahmayya Shetty had created a
Mulageni lease in respect of 0.14 acres of land in
Sy.No.127/5A in favour of one Gunapala Shetty as per
registered document No.l-27/1951 dated 10.01.1951 of
Sub-Registrar, Puttur that is marked as document Ex.P.1,
the said Gunapala Shetty died in the year 1958, his
leasehold rights in the above land was inherited by his
Aunt Smt.Chinnamma since he was not having any issues.
The Mulageni rights so inherited by her was purchased by
the wife of one Varisena Shetty, namely Bharathi Kumari
in the year 1960. The said Varisena Shetty is the younger
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brother of the 1st plaintiff's husband and 2nd plaintiff's
father late Yuvaraj. The husband of the defendant started
running a shop in the building situated in the plot on
payment of rent in the year 1970. Thereafter, in the year
1975, the defendant purchased Mulageni right in respect
of the above plot from the wife of Varisena Shetty, namely
Bharathi Kumari, while purchasing the Mulageni right, the
defendant deliberately changed the boundary description
of the plot and mentioned the wrong boundaries quite
contrary to the earlier Mulageni deed, at any rate, the
terms of the earlier Mulageni deed dated 10.01.1951 is
binding on the defendant as the defendant is claiming
Mulageni right under the said document. The defendant is
estopped from disputing the terms of the said document.
The Mulageni right in respect of the above plot in
Sy.No.127/5A remained with late Brahmayya Shetty till his
death in the year 1968. He died intestate leaving behind
his sons Yuvaraj and Varisena Shetty as his legal heirs,
therefore, late Yuvaraj and Varisena shetty had acquired
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the entire Mulageni right over the plot. Thereafter, the
defendant purchased the half Mulageni right held by
aforesaid Varisena Shetty in the year 1984. However, in
the aforesaid sale deed, it is fraudulently stated that the
said Varisena Shetty sold the entire Mulageni right over
the plot. In fact half Mulageni right remained with late
Yuvaraj who never sold his share of half Mulageni right to
anybody. Subsequently, the mutation was wrongly made
showing as if the defendant has acquired the entire
Mulageni right in respect of the plot based upon the
aforesaid sale deed. The father of the 2nd plaintiff, late
Yuvaraj, being aggrieved by the said mutation order,
preferred an appeal before the Assistant Commissioner of
Puttur as per RRT.SR.39/2006-07 which is now pending
for enquiry. As per terms of the Mulageni deed dated
10.01.1951, the original Mulageni tenant namely Gunapala
Shetty could not alienate his Mulageni right or any portion
thereof. Further, it was also stipulated that in case of such
alienation, the Mulagar/landlord is entitled to take
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possession of the property if the Mulageni holder fails to
pay the annual rent at Rs.120/-. The Mulageni right in
respect of the portion of the plot is purported to be
obtained by the defendant and as such, she is able to pay
the Mulageni right in respect of the scheduled part. The
defendant was paying the annual Mulageni till the year
2000 to the father of the 2nd plaintiff, late Yuvaraj.
Thereafter, the defendant has failed to make payment of
Mulageni to the father of the 2nd plaintiff, late Yuvaraj or
after his death, to the plaintiff. The plaintiff being the only
legal representative of the late Yuvaraj, entitled to half
Mulageni right of late Yuvaraj in the above plot. As per the
terms of the Mulageni dated 10.01.1951, the plaintiffs are
also entitled to cancel the Mulageni of the defendant and
seek possession of the above plot. The plaintiff got issued
legal notice on 14.10.2008 to the defendant to make
payment of arrears of Mulageni from 31.12.2000 to
21.12.2007. The defendant instead of making payment of
the arrears of Mulageni, by admitting the Mulageni right
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(Landlordship) of the plaintiffs, the defendant has denied
the right of the plaintiffs to collect the Mulageni in a reply
notice dated 31.10.2008 and also sent a demand draft of
Rs.420/-, the plaintiffs have not accepted the same
amount as the defendant has denied the Mulagar right of
the plaintiffs and the plaintiffs have returned the said D.D
vide rejoinder notice dated 12.01.2008, as such the
plaintiffs are also entitled for joint possession of the above
plot apart from seeking division and partition of their
Mulagar right. The plaintiffs are now deemed to be in joint
constructive possession of the plaintiffs' property and
hence, sought for the relief by invoking Section 106 of
Transfer of Property Act, since the plaintiff has terminated
the Mulageni of the defendant and hence, entitled for the
relief of the relief as claimed in the plaint. In pursuance of
the suit summons, defendant has appeared through her
counsel and filed written statement contending that
plaintiffs claimed contradictory reliefs. At one place, relief
of declaration of joint vacant possession is claimed and at
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in another place, there is a prayer for direction to quit and
surrender vacant joint possession. There is an alternative
claim of partition of the property. These reliefs are
untenable and confusing and trying to assert right which
does not exist both on facts and in law. She admitted to
the extent of 0.14 acre of land in Sy.No.127/5A of Puttur
Kasaba Village had been leased on 10.01.1951 to
Gunapala Shetty. She has given correct boundaries and
she purchased only 0.05 acre out of 0.14 acre. Hence,
there cannot be same boundary for larger area as well as
smaller area. The sale deed dated 03.01.1975 executed by
Smt.Bharathi Kumari in her favour is not for the whole
0.14 acre which Smt.Bharathi Kumari had acquired. She
purchased the Mooli right under sale deed dated
17.10.1984 from Varisena Shetty relating to portion of 0.5
acre only and not for entire 0.14 acre. Therefore, when the
entire 0.14 acre has been alienated to different parties
without the presence of all the parties and without keeping
in mind the distinction regarding extent of property, the
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plaintiffs have made reckless and false allegations and put
forward untenable claim in the plaint. There cannot be a
partition out of the 5 cents plot. The proper boundaries of
the property purchased by her has already been decided in
past. The Yuvaraj and Varisena Shetty in O.S.No.20/1961
on the file of Civil Judge at Mangalore, a final decree for
partition took place on 31.03.1971. At that time, the
portion of the property measuring 0.4 acre in Sy.No.1 had
been set apart without bringing it for partition in view of
the pendency of R.F.A.No.38/1986 before the High Court
of Karnataka at Bangalore as specifically mentioned in
paragraph No.VI(iii) of the final decree. Further, in
paragraph No. VII(ii) it has been stated that the extent of
the said property and its income was subject to the result
of the appeal mentioned above and hence, it was left
open.
3. It is further contention that Yuvaraj got the land
in 'A' schedule only to the extent of 0.89 acre in
Sy.No.127/5A. On 20.07.1960, Bharati Kumari wife of
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Varisena Shetty purchased Mulageni right from
Chinnamma just at a time when the late Brahmayya
Shetty had obtained decree for arrears of rent and was
about to auction the Mulageni property. The property was
purchased by Bharati Kumari giving boundaries in two
portions of 9 cents plus 5 cents, totally 14 cents in
conformity with the description of the property given in
the deed dated 10.01.1951 entered into between
Brahmayya Shetty and Gunapala Shetty. In the original
lease deed dated 10.01.1951, there was no unconditional
and clear absolute forfeiture clause, contingency and
alienation of Mulageni right by the tenant would lead to
payment of higher annual rent of Rs.120/- per year,
instead of Rs.80/- per year at the auction of Mulagar. This
auction had been exercised long back by Yuvaraj by filing
proceedings in the Court. Therefore, the present plaint
proceeds on a wrong foundation regarding termination of
the Mulageni tenancy. The Mulageni became absolute with
no forfeiture clause, particularly after option had been
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exercised to claim higher rent, Yuvaraj was therefore
stopped from exercising any right of forfeiture of Mulageni.
The plaintiffs as representatives of Yuvaraj are equally
estopped accordingly. The appeal in R.F.A.No.38/1996
mentioned in paragraph No.4 supra had been
compromised along with R.F.A.No.49/1966 on 07.07.1971.
As per this compromise, R.F.A.No.38/1966 filed by
Bharathi Kumari wife of Varisena Shetty was allowed. She
was declared as absolute owner of the Mulageni interest
purchased by her as per sale deed dated 22.07.1960.
Further, it was declared that the Mulageni interest does
not belongs to the family. In the same decree, the
property purchased by Yuvaraj on 07.09.1946 was held to
be his absolute property, it was compromise decree. All
the persons interested were parties to it. Smt.Vasantha,
1st plaintiff herein being wife of Yuvaraj was also party to
that proceedings. Thus, the dispute has been settled, the
compromise partition decree mentioned in paragraph No.4
supra, insofar it related to Sy.No.127/5 is concerned,
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declared it as the property belongs to Bharathi Kumari, the
Mooli right if at all remained with her husband Varisena
Shetty only because the family gave up the rights even by
modifying the preliminary decree, so, Yuvaraj did not
retain any right in the said property. The defendant in the
written statement in total denied the title of the plaintiffs.
The defendant in the written statement also denied that
not paid the payment to late Yuvaraj till the year 2000.
The entire Mulageni for the whole plot is Rs.120/-, for the
portion of the 0.5 acres assuming that Yuvaraj had half
share, amount of annual rent payable would be a title
more than Rs.20/- per year. She also contributed Rs.20/-
per year, though from the year 1984 onwards, she was
not liable to pay rent to anybody. When the plaintiffs have
come out with allegation that Yuvaraj collected rent from
her, it is a very clear case where alleged forfeiture has
been waived and assignee of tenancy is recognized as
direct tenant. Therefore, Yuvaraj himself could not have
sought eviction of her in view of Section 112 of TP Act. He
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had not sought eviction, alienation by Chinnamma in
favour of Bharathi Kumari and from Bharati Kumari to her
(this defendant) and all these assignments have been
accepted by Yuvaraj as per the plaint averments and
hence, there is complete waiver of the alleged forfeiture.
The notice dated 20.12.1974 issued by Yuvaraj to
Nagaraja Shetty another tenant, he had mentioned that
Mulageni property was kept undivided and Bharathi
Kumari was the Mulageni tenant of the property of 0.14
acre. In the reply dated 31.10.2008, she (defendant) has
pointed out the correct fact. After pointing out that she
has become owner of the property, she has clarified that
she being in occupation of 0.5 acre only, claimed putforth
by the plaintiffs for Rs.60/- as Mulageni is without any
basis. She has not really denied the title as such, of the
plaintiffs, she has also pointed out that she is not required
to pay rent. To avoid litigation, she has tendered the
amount of Rs.420/- claimed by the plaintiffs, which has
been refused and returned by the plaintiffs. Therefore,
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plaintiffs cannot rely upon the tendering of money to
support their untenable case. She has not denied the title
of the plaintiffs, Section 106 of T.P Act does not apply
because there is no monthly tenancy in this case. Hence,
the very claim made by the plaintiffs that plaintiffs are
entitled for the relief cannot be accepted. The entire
concept of plaintiffs having half Mulagar right is not
correct. The plaintiffs seeking for a partition or eviction of
the defendant is illegal and untenable. If it is held that
Varisena Shetty had half right as urged by the plaintiffs,
then also her Mulageni right remains intact without merger
and such Mulageni being non-terminable. The relief of
eviction of what is mentioned half portion of Mulageni
holding is not tenable.
4. It is also contended that on account of advent
of Karnataka conferment of ownership on Mulageni or Vola
Mulageni Tenant Act, 2011, Mulageni and Vola Mulageni
having been abolished, the suit of the plaintiffs is not
maintained before a Civil Court in view of the specific bar
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on jurisdiction contained under Section 10 of the Act, she
has effected valuable improvements in the property. The
property of 0.57 cents is not physically divisible into two
portion of half share each. For any reason the Court comes
to the conclusion that partition has to takes place, this
defendant is entitled to exercise the option under the Act
to purchase the alleged half Mulagar right of the plaintiffs
and in equity.
5. That Trial Court having considered the
pleadings of the parties framed the following issues and
also additional issues:
1) Whether the plaintiffs prove that the
Mulageni of the defendant in respect of
schedule plot has been duly terminated?
2) Whether the plaintiffs prove that they are
entitled for ½ Muli right in the suit
schedule property?
3) Whether the plaintiff prove that the
defendant changed the boundary
description of the plot?
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4) Whether the plaintiff proves that she is
entitled for joint possession of suit
schedule property?
5) Whether plaintiffs prove that the
defendant is not entitled for any protection
under section 106 of T.P.Act?
6) Whether the defendant proves that
Moolageni became absolute with no
forfeiture clause and as such plaintiffs are
estopped?
7) Whether the defendant proves that there
is a compromise partition decree in
relation to survey No.127/5A and in view
of the said decree late Yuvaraj did not
retain any right over the plaint schedule
property?
8) Whether the plaintiffs are entitled to
mesne profits?
9) Whether the plaintiffs are entitled for the
relief as claimed in the suit?
10) What order or decree?
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Additional Issue on 11-04-2011
1) Whether the plaintiff proves that she is
entitled for ½ share in the suit schedule
property by metes and bounds after
removing the super structures therein?
Additional Issue on 19-11-2013
1) Whether the court has jurisdiction to try
this suit?
6. The Trial Court allowed the parties to lead
evidence before the Trial Court. The Trial Court having
considered both oral and documentary evidence available
on record, particularly relying upon the evidence of P.W.1
and D.W.1 and document Ex.P.1 to Ex.P.16 and Ex.D.1 to
Ex.D.6, answered Issue No.1 as affirmative in coming to
the conclusion that plaintiffs prove that Mulageni of the
defendant in respect of schedule plot has been duly
terminated considering the issuance of notice and reply
and so also in respect of Issue No.2 and 3, answered that
they are entitled for half Mulgar right in the suit schedule
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property and also the defendant changed the boundary
description of the plot and answered Issue No.4 does not
survive for consideration in view of amendment and also
with regard to the Issue No.5 is concerned held that
defendant is not entitled for any protection under Section
106 of T.P Act and also comes to the conclusion that
Mulageni became absolute with no forfeiture clause and as
such plaintiffs are estopped and such defence of the
defendant was not accepted and so also with regard to the
contention that there is a compromise petition decree in
relation to Sy.No.127/5A and in view of the said decree,
late Yuvaraj did not retain any right over the plaint
schedule property and the said defence of the defendant
was also not accepted and both the Issue No.6 and 7 are
answered as negative and also answered the Issue No.9 in
the affirmative in coming to the conclusion that plaintiffs
are entitled for the relief as claimed and with regard to the
Additional Issue Nos.1 and 2 are answered as affirmative
in coming to the conclusion that plaintiffs are entitled for
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half share in the suit schedule property by metes and
bounds after removing the superstructure therein.
7. Being aggrieved by this judgment and decree,
an appeal is filed before the Appellate Court in
R.A.No.9/2020 and Appellate Court having considered the
grounds which have been urged in the appeal memo,
formulated the point whether the grounds are made out to
allow the IAs' filed for reopening the case and to frame an
additional Issue as prayed in I.A.No.7 and whether
grounds are made out to allow the I.A.No.8 and permit the
appellant/defendant to amend the written statement as
prayed in the application and also whether the Trial Court
has appreciated the evidence placed on record and the
reasons assigned for dismissal of the suit are not proper
and also whether the grounds are made out to dismiss the
suit. The Appellate Court having re-assessed both oral and
documentary evidence, answered all the issues as
negative and confirmed the judgment of the Trial Court
particularly considering the material on record in
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paragraph No.39 considering the Muageni document
Ex.P.1 dated 10.01.1951 and also transfer of the Mulageni
right in favour of Bharathi Kumari under a registered
transfer deed dated 22.07.1960 by Smt.Chinnamma and
also considering the document Ex.D.1 and Ex.D.2 which
are the compromise decrees passed in R.F.A.No.38/1966
and R.F.A.No.45/1966 would also confirm the Mulageni
right of the defendant and detail discussion was made with
regard to the subsequent document and so also with
regard to the notice was issued demanding rent in terms
of Ex.P.3 and also reply in terms of Ex.P.5 and comes to
the conclusion that admittedly the defendant has
purchased the Mooli right and her so called purchase is the
Mulageni right only and not accepted the case of
defendant with regard to the purchase of the right and
particularly considering the document Ex.P.8 and provision
of under 111(g) of Transfer of Property Act is to be looked
into and the same is discussed in paragraph No.41 and
considering both oral and documentary evidence available
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on record, comes to the conclusion that the Trial Court has
not committed any error in granting the relief and the
same is only a Mooli right which was given. In paragraph
No.46 comes to the conclusion that under Section 116 of
the Transfer of Property Act is restricted to the denial of
the title at the commencement of the tenancy and also
taken note of Judgment of Apex Court reported in 1999
AIR SC 3584 (S.Thangappan V/s P.Pandmavathi) and the
same is discussed in paragraph number 46 and comes to
the conclusion that judgments which have been relied
upon are not applicable to the facts of the case on hand
and an observation is made that in fact the Trial Court
rightly appreciated the material placed on record and
observed the fact that Mulageni of the defendant is duly
terminated by the provisions of law and also about the title
of the plaintiffs over the property in question was
considered and hence, the Trial Court has not committed
any error in granting the relief as sought and hence,
confirmed the judgment of the Trial Court.
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8. Being aggrieved by the concurrent finding, the
present second appeal is filed before this Court. The main
contention of the counsel appearing for the appellant
before this Court is that the Trial court and also the First
Appellate Court committed an error in considering the
material on record, whether the alternative relief of
partition and separate possession granted by the Trial
court is arbitrary and illegal inasmuch as suit for partition
and separate possession of only the property alienated
without including the entire joint family property is not
maintainable. The counsel would vehemently contend that
both the Courts have committed an error in holding that
the judgment and decree in R.F.A.No.38/1966 and
R.F.A.No.45/1996 as per Ex.D.1 and Ex.D.2, the
compromise decree passed therein does not confer
absolute right to Bharati Kumari wife of Varisena Shetty
and consequently to the purchaser, defendant and the
very said approach of the both the Courts is erroneous.
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9. The counsel also would vehemently contend
that both the Courts erred in ruling that there is no merger
of Mulageni right and the ownership rights inspite of
registered sale deed dated 22.07.1960, Ex.D.3, Mulageni
sale deed dated 30.01.1975, Ex.D.5 and the registered
sale deed dated 17.10.1984, Ex.D.6 and the judgment and
decree of the First Appellate Court is arbitrary and fails to
consider the merger of Mulageni right and ownership
rights inspite of these sale deeds. The counsel also
vehemently contend that when the joint family lost their
absolute rights over the possession by virtue of
acknowledging and confirming the Mulageni in favour of
Bharathi Kumari as her absolute property and as not
belonging to the joint family, such a suit for partition and
separate possession is not maintainable and fails to take
note of all these factors into consideration. Both the Courts
have also erred in holding that defendant had suffered
forfeiture under Section 111(g) of Transfer of Property Act.
Though the denial is not at the inception of tenancy, but
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by virtue of subsequent event, that is sale deed dated
17.10.1984 as per Ex.D.6 and compromise decree in
R.F.A.No.37/1996 dated 07.07.1991 and the said denial is
bonafide, but the Trial Court and Appellate Court
committed an error and hence, this Court has to admit and
frame substantive question of law.
10. The counsel in support of his argument also
relies upon the judgment reported in (1999) 7 Supreme
Court Cases 474 in case of S.Tangappan V/s
P.Padmavathy and brought to notice of this Court
paragraph No.14 wherein discussion was made with regard
to denial of title is concerned and also brought to notice of
this Court paragraph No.15 and contend that approach of
both the Courts is erroneous.
11. The counsel also relies upon the judgment
reported in LAWS(SC)-1987-9-22 in case of
D.Satyajnarayana V/s P.Jagadish and brought to
notice of this court paragraph No.4 denial of title and with
regard to the derivative of title.
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12. The counsel also relied upon the judgment
reported in LAWS(SC)-2002-3-27 in case of Sheela V/s
Firm Prahlad Rai Prem Prakash and also brought to
notice of this Court paragraph No.18 with regard to the
plea which is not malicious with denial of title compelling
landlord to prove his rights of ownership to protect
tenancy are held to be beyond the scope of Section 116 of
T.P Act.
13. Learned counsel for respondents would submit that
this second appeal is filed against concurrent finding and both
the Courts considered question of fact and question of law.
Learned counsel for respondents in support of his argument
relies upon the synopsis and contend that Late Brahmayya
Shetty (grandfather of plaintiff) had leased Sy.No.127/5A
measuring 0.14 acres situated in Puttur, Kasaba Village, Puttur
to one late Gunapala Shetty through a Mulageni deed dated
10.01.1951 i.e., as per Ex.P1. The Mulageni tenant Gunapala
Shetty expired and Mulagini tenancy was inherited by
Chinnamma, since she was not having any legal heirs and on
the death of Gunapala Shetty in the year 1958, she had
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executed a Mulageni tenancy right in favour of Smt. Bharathi
Kumari on 22.07.1960 and only Mulageni tenancy right was
purchased and not the ownership. The counsel also would
submit that original owner i.e., Mulagar Brahmayya Shetty
expired leaving his two sons named Yuvraj and Varisena Shetty
in the year 1968. It is also contented that defendant purchased
suit schedule property to an extent of 0.5 acres from Bharathi
Kumari and thereby, she became the Mulageni tenant of
schedule property on 03.01.1975. The defendant had
purchased only Mulagar's right from Varisena Shetty and
therefore, the Mulagar's right of Yuvraj remained with him on
17.10.1984. Consequent upon the same, when the revenue
entries were made, RRTSR No.39/2006-07 is filed by Yuvraj
challenging the Mutation before the Assistant Commissioner in
favour of the defendant. Subsequently, the plaintiffs issued a
legal notice demanding arrears of rent on 14.10.2008 and the
same is served and reply was given on 31.10.2008 in terms of
Ex.P5 denying the right and title of the plaintiffs and right to
collect the rent and also paying sum of Rs.420/- as rent.
Hence, the rejoinder was sent back by the plaintiffs returning
the rent of Rs.420/- on 12.01.2008. Subsequently, notice of
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termination of tenancy was issued on 20.02.2009. The suit was
filed claiming half share on 28.03.2009 in the schedule
property and possession of it.
14. The Trial Court having considered both oral and
documentary evidence granted the relief on 01.02.2020 which
is challenged on 11.03.2024 in R.A.No.9/2020 and the same
was confirmed by the First Appellate Court. The learned counsel
appearing for the respondents would vehemently contend that
admittedly, Brahmayya Shetty was the owner of Sy.No.127/5A
measuring 0.14 acres situated at Puttur, Kasaba Village, Puttur
is not in dispute. The grandfather, Brahmayya Shetty had
leased the above land through a registered Mulageni deed in
favour of Gunapala Shetty and Brahmayya Shetty became the
Mulagar and Gunapala Shetty became the Mulageni tenant and
under the registered Mulageni deed, the tenant was prohibited
from alienating the property. The tenant was also liable to be
evicted for non-payment of rental. The counsel also would
vehemently contend that when the Mulageni tenant Gunapala
Shetty had expired in the yehar 1958, the same was succeeded
by Smt.Chinnamma and in turn, she had executed a document
to the extent of 0.05 acres. In the meanwhile, Mulagar passed
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away in the year 1968 and the same was succeeded by Yuvraj
and Varisena Shetty. But the interest of Yuvraj was not
transferred to anybody else. Hence, he is entitled to receive the
rent and also to evict the tenants. Though, the defendant had
purchased Mulagar's right only from Varisena Shetty, therefore,
the other co-owner Yuvraj continued to be the co-
owner/Mulagar of the schedule property. Hence, the Trial Court
rightly taken note of the said material on record and only after
full-fledged trial, passed an order and suit has been decreed.
15. Learned counsel for the respondents, in support of
his argument relied upon the judgment in M/S. INDIA
UMBRELLA MANUFACTURING CO. AND OTHERS V.
BHAGABANDEI AGARWALLA (DEAD) BY L.R.'S AND
OTHERS reported in AIR 2004 SC 1321 and brought to notice
of this Court principles laid down in this judgment that one co-
owner can file eviction suit and suit filed jointly by two co-
owners, one co-owner cannot withdraw his consent midway to
prejudice of other co-owner. The counsel also brought to notice
of this Court discussion made in paragraph No.6 and so also
paragraph No.7 and contend that by merger, entire interest of
landlord must get merged in tenant's and in order to bring the
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tenancy to an end the merger should be complete, i.e., the
interest of the landlord in its entirety must come to vest and
merge into the interest of tenant in its entirety. When part of
the interest of the landlord or the interest of one out of many
co-landlords-cum-co-owners comes to vest in the tenant, there
is no merger and the tenancy is not extinguished. The counsel
relying upon this judgment would vehemently contend that the
very contention of learned counsel for the appellant that plea of
merger taken by the defendant cannot be accepted.
16. The counsel also would vehemently contend that
the Trial Court has taken note of Section 111(g)(2) of Transfer
of Property Act, 1882 while considering the material on record.
Hence, there is no substantial question of law to be framed and
both the Courts have taken note of question of fact and
question of law and it is not a case for framing any substantial
question of law.
17. Having heard learned counsel for the appellant and
learned counsel for respondents and also the principles laid
down in the judgments referred supra by learned counsel for
the appellant and learned counsel for the respondents, no
dispute with regard to the principles laid down in the judgments
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of the Apex Court which have been relied upon by the appellant
as well as respondents. Before considering the principles laid
down in the said judgments, the Court has to look into the facts
of the case on hand. It is not in dispute that property originally
belongs to Brahmayya Shetty, who is the grandfather of the
plaintiffs and also it is not in dispute that grandfather of the
plaintiff was having two sons i.e., Yuvraj and Varisena Shetty.
It is also not in dispute that original owner late Brahmayya
Shetty, grandfather of the plaintiffs was the owner of land in
Sy.No.127/5A to an extent of 0.14 acres and he had also
executed a Mulageni deed on 10.01.1951 in terms of Ex.P1 in
favour of Gunapala Shetty. It is also not in dispute that he died
intestate and was not having any legal heirs and hence,
Chinnamma succeeded to Mulageni tenancy in respect of the
property. The plaintiffs also not dispute the fact that Bharathi
Kumari had purchased Mulageni tenancy from Chinnamma in
the year 1960. But, when Mulagar died in the year 1968, the
defendant purchased Mulagar's right only from Varisena Shetty,
one of the sons of Mulagar and not from Yuvraj on 17.10.1984
and purchased the suit schedule property to an extent of 0.5
acres from Bharathi Kumari and thereby, became the Mulageni
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tenant of schedule property is not in dispute in terms of the
document of the year 1975.
18. It is also contented by the plaintiffs before the Trial
Court that this defendant continued to pay rent till 2000 and
there is a specific pleading. But, in order to substantiate the
same that the rent was paid till 2000, there is no documentary
proof produced before the Court. However, when the legal
notice was issued in terms of Ex.P3 to the defendant, wherein
arrears from 2000 to 2007 was claimed, the defendant gave
reply in terms of Ex.P5, wherein paid the rent of Rs.420/-.
However, learned counsel appearing for the
appellant/defendant would vehemently contend that the same
was paid only in order to avoid the dispute between the parties
and not denied the title. But, the contention of the respondents
is that while giving such reply, title is also denied. Hence, it is
not in dispute that an amount which was paid to the tune of
Rs.420/- was sent back to the plaintiffs and thereafter, notice
of termination was given.
19. Learned counsel appearing for the appellant would
vehemently contend that plaintiffs ought not to have relied
upon Section 111(g) of Transfer of Property Act, 1882 and
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brought to notice of this Court with regard to forfeiture is
concerned and contend that both the Courts have committed
an error with regard to forfeiture is concerned. The counsel
appearing for respondents also brought to notice of this Court
that in the written statement, specifically denied the right of
plaintiffs with regard to title as well as other claim made by the
plaintiffs.
20. Having perused the proviso under Section 111(g) of
Transfer of Property Act with regard to 'Determination of lease'
is concerned, the proviso is very clear that, (g) by forfeiture;
that is to say, (1) in case the lessee breaks an express
condition which provides that, on breach thereof, the lessor
may re-enter; or (2) in case the lessee renounces his character
as such by setting up a title in a third person or by claiming
title in himself; or (3) the lessee is adjudicated an insolvent and
the lease provides that the lessor may re-enter on the
happening of such event; and in [any of these cases] the lessor
or his transferee [gives notice in writing to the lessee of] his
intention to determine the lease.
21. Having perused the proviso, Section 111(g)(2) is
very clear that in case the lessee renounces his character as
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such by setting up a title in a third person or by claiming title in
himself, the merger comes into play. Having perused the
written statement, it is very clear that the defendant has
denied the very title. Apart from that the defendant claimed
right in respect of remaining half share through Varisena
Shetty. When such being the case, I do not find any error on
the part of the Trial Court and the First Appellate Court in
invoking Section 111 of Transfer of Property Act, 1882, since
there is a categorical denial of title of the plaintiffs by the
defendant in the written statement.
22. The other contention of learned counsel for the
respondents is with regard to merger is concerned in view of
Mulageni deed and sale deed executed by Bharathi Kumari in
the year 1975 as well as in the year 1984 respectively as per
Exs.D5 and D6. I have also pointed out that no dispute with
regard to the document dated 03.01.1975 and 17.10.1984 as
per Exs.D5 and D6 and the same is with regard to purchase of
Mulageni right. When such being the case, in view of the
judgment relied upon by learned counsel appearing for
respondents with regard to merger is concerned, the same
comes to the aid of the respondents with regard to
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determination of tenancy is concerned, wherein the merger
would be complete when the interest of the landlord in its
entirety vests into the interest of tenant in its entirety and the
same is not found and the purchase is made only from Varisena
Shetty and not from plaintiffs' interest. Hence, I do not find any
force in the very contention of appellant with regard to merger
is concerned.
23. No doubt, learned counsel appearing for the
appellant also relied upon the judgment in S. THANGAPPAN's
case, paragraph No.14 is in respect of denying of title is
concerned, an elaborate discussion is made that tenant once
inducted as a tenant by a landlord, later he cannot deny his
landlord's title. Thus, this principle of estoppel debars a tenant
from denying the title of his landlord from the beginning of his
tenancy. But, counsel appearing for the appellant would
contend that from the beginning, the tenancy is disputed by the
appellant. But, having considered the reply given by the
appellant in terms of Ex.P5, he had sent the rent to the tune of
Rs.420/-. When such being the case, the appellant cannot blow
hot and cold and the very contention is that, only in order to
avoid the dispute between the parties, the same was sent. But,
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admittedly, the rent was sent is not in dispute. When such
being the case, I do not find any error on the part of the Trial
Court and the First Appellate Court and both the Courts have
taken note of issue between the parties and also factual
aspects and also question of law while considering the material
on record, particularly Section 111(g)(2) of Transfer of Property
Act, 1882 was invoked by both the Trial Court and the First
Appellate Court. When such being the case, having considered
the material on record, I do not find any error on the part of
both the Trial Court and the First Appellate Court in considering
the material on record. Hence, it is not a case to invoke Section
100 of CPC and not made out any ground to admit the second
appeal and frame any substantial question of law.
24. In view of the discussion made above, I pass the
following:
ORDER
The regular second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
RHS,ST
List No.: 1 Sl No.: 47
