Karnataka High Court
Sri. Rajashekhar D @ Raju vs Sri.T. Mohammed Sirajur Huk on 20 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1734 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1734 OF 2023 (RES)
BETWEEN:
1. SRI. RAJASHEKHAR D. @ RAJU
S/O DEVADAS
AGED ABOUT 42 YEARS
R/O DOOR NO.154/1
NEAR BASAVESHWARA TEMPLE
BASAVARAJPET
DAVANAGERE.
...APPELLANT
(BY SRI. B.M.HALA SWAMY, ADVOCATE)
AND:
1. SRI. T. MOHAMMED SIRAJUR HUK
S/O LATE ABDUL KAREEM
Digitally signed AGED ABOUT 81 YEARS,
by DEVIKA M BUSINESS
Location: HIGH R/O DEVARAJ URS 'A' BLOCK
COURT OF
KARNATAKA DAVANAGERE.
...RESPONDENT
(BY SRI. SANTOSH R. NELKUDURI, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 05.08.2023
PASSED IN R.A.NO.80/2022 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND CJM, DAVANAGERE, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 10.06.2022 PASSED IN O.S.NO.183/2013 ON THE FILE
OF THE PRINCIPAL CIVIL JUDGE AND JMFC, DAVANAGERE.
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RSA No. 1734 of 2023
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THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission and I have heard
learned counsel for the appellant and learned counsel for the
respondent.
2. This second appeal is filed against the concurrent
finding of the Trial Court as well as the First Appellate Court.
The factual matrix of the case of the respondent-plaintiff before
the Trial Court is that that he has three brothers and they had
filed suit in O.S.No.44/1989 for the relief of partition and
separate possession of suit schedule property along with other
properties. At that time, the father of the defendant was in
occupation of the suit schedule property as a tenant. After his
death, the defendant has continued in occupation of the suit
schedule property as a tenant. The original tenant was also
impleaded as a party to the suit in O.S.No.44/1989. After
contest, the said suit was decreed by allotting 1/3rd share to
the plaintiff and his brothers and remaining 1/4th share was
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allotted to the share of the deceased Rahamattulla, who is none
else than the elder brother of the plaintiff. Thereafter, the
plaintiff and his brother filed final decree proceedings in FDP
No.25/2002. In the said proceedings, the First Appellate Court
has issued a direction to purchase 1/4th share of deceased
Rahamattulla at the rate of Rs.200/- per square feet.
Accordingly, legal heirs of deceased Rahamattulla have filed
execution petition in Execution No.204/2009 for recovery of
value of 1/4th share. The plaintiff and his brothers have paid a
sum of Rs.2,10,112.50 towards 1/4th share of deceased
Rahamattulla and by payment of the said amount, plaintiff and
his brothers have become absolute owners of the property
bearing No.154/1, 2 and 3. The suit property is a part of the
entire property in No.154/1 to 3.
3. It is also the case of the plaintiff that plaintiff and
his brothers have issued attornment notice to the defendant
demanding rent of Rs.1,000/- per month and notice was
served, but not paid the rent and he become defaulter in
payment of rent. It is also contended that they are in very
much need of the premises, since they are residing in a rented
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premises. It is also contented that plaintiff has terminated the
tenancy of the defendant by issuing legal notice on 26.02.2011
and demanded the defendant to vacate and handover the suit
property on or before 31.03.2011. But, the defendant has not
vacated the premises and instead, filed a suit in
O.S.No.631/2012 seeking the relief of permanent injunction.
The plaintiff has filed a memo stating that he will not
dispossess the defendant without having recourse to law and
he will be evicted under due process of law. Hence, the plaintiff
filed the present suit for the relief of eviction and for
possession.
4. The defendant appeared and filed the written
statement contending that plaintiff is not the owner of the suit
property and the defendant never remained as a defaulter of
payment of rent as alleged by the plaintiff. The defendant is
still ready to pay the balance rent, if this Court directs. It is
also contented that defendant is residing in the suit schedule
property along with his family members since 30 years and
except the suit property, the defendant has no other property.
It is further contended that defendant and his family members
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were in possession and enjoyment of the property, till
interference by the plaintiff and also pleaded with regard to
filing of the suit and disposal of the suit. It is also contended
that defendant has invested amount of more than
Rs.3,00,000/- for repairing the suit property and prayed the
court to dismiss the suit.
5. The Trial Court having considered the grounds
urged in the plaint as well as the written statement, framed the
issues whether there exists a jural relationship between the
parties and whether the plaintiff is entitled for damages as
claimed.
6. The plaintiff got examined himself as P.W.1 and got
marked the documents as Exs.P1 to P10. In rebuttal of the
evidence of plaintiff, the defendant examined himself as D.W.1
and not produced any documents.
7. The Trial Court having considered the averments
made in the plaint and also the written statement, answered
issue No.1 as 'affirmative' and in paragraph No.16 of the
judgment, taken note of issuance of legal notice and also notice
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of attornment. A perusal of Ex.P1 clearly disclose that after
judgment and decree in O.S.No.44/1989, FDP is also filed and
brothers have paid the amount and 1/4th share of Rahamattulla
was purchased by the plaintiff and his brothers. Having taken
note of termination of tenancy in terms of Ex.P4 and inspite of
both the notices were issued, no reply was given. Hence,
comes to the conclusion that in view of issuance of notice under
Section 106 is crystal clear that if the landlord intends to evict
his tenant from the property, he has to give 15 days prior quit
notice to the tenant. Accordingly, he has given the notice and
no reply was given. The Trial Court also considering the
material available on record, comes to the conclusion that the
fact that the appellant herein is a tenant of a erstwhile owner is
not in dispute and suit, FDP and also execution petition was
filed and it is also pleaded for having made the payment. The
Trial Court also taken note of the fact that inspite of notice was
acknowledged by D.W.1, he had categorically admitted in the
cross-examination that plaintiff has issued the notice for
eviction on 28.10.2010 and he has not tendered any reply to
the said notice as observed in paragraph No.21. Having
considered all these materials, the Trial Court in paragraph
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No.24, comes to the conclusion that the very contention of the
defendant that the plaintiff is not the owner of the property and
the very contention that he was not the owner cannot be
accepted since, the fact that he was a tenant is not in dispute
and suit was pending between the family members is also not
in dispute and FDP is filed and issuance of notice of termination
is also not disputed by filing any reply. Hence, in paragraph
No.24 of the judgment, the Trial Court accepted the case of the
plaintiff and in paragraph No.25, the Trial Court also taken note
that the defendant categorically admitted that he has not paid
the arrears of rent to the plaintiff, even after issuance of notice
of attornment of tenancy and also termination of tenancy.
Hence, decreed the suit directing the defendant to vacate the
suit schedule property and handover its vacant possession to
the petitioner within two months from the date of the
judgment.
8. Being aggrieved by the said judgment and decree of
the Trial Court, an appeal is also filed before the First Appellate
Court in R.A.No.80/2022. The First Appellate Court having
considered the grounds urged in the appeal memo as well as
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oral and documentary evidence, extracted the grounds in
paragraph No.13 and also formulated the point regarding
condonation of delay and so also whether the judgment of the
Trial Court is perverse, capricious and erroneous.
9. Having reassessed the material available on record,
the First Appellate Court also taken note of the admission, filing
of suit and FDP proceedings and causing of attornment of
tenancy notice and also termination notice and filing of the suit
by the defendant in O.S.No.631/2012, wherein a memo was
filed stating that he will evict the appellant herein under due
process of law. The First Appellate Court having reassessed the
material on record, comes to the conclusion that Ex.P10 is the
certified copy of the order sheet in eviction petition bearing No.
202/2009. It discloses that Rahamattulla Khan and Gouse Khan
are decree holders and Smt. Janabi and others are Judgment
Debtors. This petition was filed for passing an order for
purchase of 1/3rd share of D.HRs and apportionment of 'A' and
'B' schedule in accordance with final decree dated 22.04.2009
in FDP No.25/2002 on the file of the 1st Additional Civil Judge
Court, Davanagere. The First Appellate Court also having taken
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note of the fact that amount was paid consequent upon the
judgment and decree and FDP proceedings and the said petition
is filed by the legal heirs of Rahamattulla Khan. When there
was a decree, FDP proceedings and also execution proceedings,
apart from that after the judgment and decree and FDP
proceedings, legal notice was issued terminating the tenancy
and attornment notice was also issued. For all these notices,
the appellant not given any reply disputing the tenancy, but
only during the course of original proceedings, when the relief
is sought for ejection, defense is raised that he is not a owner.
But the fact that he was a tenant of a erstwhile owner is also
admitted. When his status is a tenant, he cannot dispute the
very documentary evidence which have been placed by the
respondent when they being the family members have filed a
suit and relief was granted for partition and accordingly,
purchased 1/4th share of erstwhile owner. When such being the
case, all these materials were taken note of by the Trial Court
as well as the First Appellate Court and dismissed the same.
10. Now, learned counsel for the appellant would
vehemently contend that relationship has not been established
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and also counsel would contend that even in the written
statement, categorically stated that he will pay the rent. But,
the fact is that though such objection is raised in the written
statement, not filed any application even to deposit the rent
and the appellant herein is squatting on the property without
payment of rent and suit was filed in the year 2013 and
judgment and decree was passed long back i.e., prior to filing
of suit. Even though specific defence was taken that he is ready
to pay the rent from 2013 till 2015, not paid any single paisa of
rent and the very contention that he took the defence that he
will pay the rent cannot be ground to entertain the second
appeal and with regard to the dispute in jural relationship, both
the Courts have taken note of the proceedings which have
taken place earlier and also taken note of the fact that
consequent upon the judgment and decree of partition as well
as the FDP proceedings and Ex.P10 certified copy of Execution
Petition No.202/2009, wherein a claim was made with regard to
1/4th share of property of Rehamattulla to whom the appellant
claims that he had given the property. When such being the
case, the status of the tenant is only a tenant and he cannot
dispute the title once he admits that he was a tenant.
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11. Apart from that, even categorically admitted
regarding causing of notice of termination and attornment of
tenancy notice and no reply was given and even not paid the
rent and there is an admission with regard to receipt of
attornment of tenancy notice as well as termination of tenancy
notice and also non -payment of rent. All these factors were
taken note of by the Trial Court and the First Appellate Court.
Hence, the very contention of learned counsel for the appellant
that Trial Court committed an error in granting the relief as
sought and confirmation of the same by the First Appellate
Court is erroneous cannot be accepted and I do not find any
error committed by the Trial Court and the First Appellate
Court. Learned counsel for the appellant has not made out any
ground to admit the appeal and frame substantial question of
law as contented in the second appeal with regard to jural
relationship is concerned and when there is no denial with
regard to attornment of tenancy as well as termination of
tenancy, no such substantial question of law arises for
consideration to be framed by admitting this second appeal.
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12. In view of the discussion made above, I pass the
following:
ORDER
The regular second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
ST
