IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED...

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 5th DAY OF NOVEMBER, 2012

BEFORE

THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI

R.F.A.No.728 OF 2009 C/W.

R.F.A.Nos.783/2009 & 777/2009 RFA No. 728/2009 BETWEEN: Sri V Rajkumar, Aged about 67 years, S/o Late V.C.Venkatachalam, R/at 137, Commercial Street, Bangalore. … Appellant

(By Sri V.Lakshminarayana, Senior Counsel) AND: 1. Sri C.M.Abu Mohammed, Since deceased by his LRs. 1(a) Smt.C.A.Zohar, W/o Sri Abu Mohammed, Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore – 560 027.

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Represented by PA Holder Sri Munawar Major, Rest – do –

1(b) Sri C.A.Mohidin Munawar, S/o Late Sri Abu Mohammed, Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore – 560 027.

Represented by PA Holder Sri Munawar, Major, Rest – do –

1(c) Sri C.A.Ameen Kausar, S/o Late Sri Abu Mohammed, Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore – 560 027.


1(d) Sri C.A.Ammer Akther, S/o Late Sri Abu Mohammed, Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore – 560 027.


1(e) Sri C.A.Asif Afzal, S/o Late Sri Abu Mohammed, Major, R/at No.367, Akkithimmanahalli,

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Shanthinagar, Bangalore – 560 027.


1(f) Sri C.A.Aqueel Azhar, S/o Late Sri Abu Mohammed, Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore – 560 027.


1(g) Sri C.A.Sami Jauhar, S/o Late Sri Abu Mohammed, Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore – 560 027.


1(h) Sri C.A.Samina Rabia, S/o Late Sri Abu Mohammed, Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore – 560 027.


2. Sri C.A.Mohammed Anis Gowhar, Major, R/at No.367, Akkithimmanahalli,

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Shanthinagar, Bangalore – 560 027.


3. Smt.Shamshad Banu, Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore – 560 027.


4. Smt. Safina Aiysha, Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore – 560 027.


5. Sri V.Sridharan, S/o Late V.C.Venkatachalam, Aged about 60 years, R/at No.172, Narayan Pillai Street, Bharathinagar, Bangalore – 560 001. 6. Smt.Premlatha, W/o Late V.Pandurangam, Dead by her LR., 6(a) Mr.V.P.Suresh Kumar, S/o Late V.Pandurangam, Age 40 years, R/o #7/4, Desai Colony, III Street,

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Perambur High Road, Chennai – 600 012. 6(b) Mrs.Daisy @ Devanayaki, Major, D/o Late Pandurangam. 6(c). Mrs.Chitra D/o Late Pandurangam, 6(a) to 6(c) are R/o No.118,

Avadhana Pappiya Road, (A.P. Road), Choolai, Chennai – 600 112. 7. Smt.Kalavathi, D/o Late V.C.Venkatachalam, Aged about 42 years, R/at No.137, Commercial Street, Bangalore – 560 001. ... Respondents

(By Sri S.Sreevatsa, Senior Counsel for Sri M.D.Raghunath, Advocate for Legal Axis for R1(a-h) & R2-R4:

Sri Abdul Hameed, Advocate for R5: Sri V.A.Mohan Rangum, Senior Counsel for R6(c) & R8:

Sri K.Suman, Advocate for R6(b): R6(a) and R-7 are served but unrepresented)

This RFA is filed under Section 96 of CPC, against

the judgment and decree dated 30.06.2009 passed in O.S.No.16707/2002 on the file of the XXVI Addl. City Civil Judge, Mayo Hall, Bangalore City, decreeing the suit for ejectment and etc.

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RFA No.783/2009 BETWEEN: 1. Mr.V.P.Suresh Pandurangam

@ Suresh Kumar, S/o Late V.Pandurangam, Age: 40 years, R/o # 7/4, Desai Colony, III Street, Perambur High Road, Chennai – 600 012.

2. Smt.Kalavathi, D/o Late V.C.Venkatachalam, Aged about 42 years,

R/a No.137, Commercial Street, Bangalore – 560 001. … Appellants

(By Sri Prabhuling K.Navadagi, Advocate)

AND: 1. Sri C.M.Abu Mohammed, Since deceased by his LRs. 1(a) Smt.C.A.Zohar, W/o Sri Abu Mohammed, Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore – 560 027.


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1(e) Sri C.A.Asif Afzal, S/o Late Sri Abu Mohammed, Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore – 560 027.


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1(h) Sri C.A.Samina Rabia, S/o Late Sri Abu Mohammed, Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore – 560 027.


2. Sri C.A.Mohammed Anis Gowhar, Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore – 560 027.


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5. Sri V.Rajkumar, Aged about 67 years, S/o Late V.C.Venkatachalam, R/at No.137, Commercial Street, Bangalore. 6. Sri V.Sridharan, S/o Late V.C.Venkatachalam, Aged about 60 years, R/at No.172, Narayan Pillai Street, Bharathinagar, Bangalore – 560 001. 7. Mrs.Daisy @ Devanayaki, Major, D/o Late Pandurangam 8. Mrs.Chitra D/o Late Pandurangam,

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Respondents 7 & 8 are R/o No.118, Avadhana Pappiya Road, (A.P. Road), Choolai, Chennai – 600 112. ... Respondents

(By Sri S.Sreevatsa, Senior Counsel for Sri M.D.Raghunath, Advocate for Legal Axis for R1(a-h) & R2-R4;

Sri V.Lakshminarayana, Senior Counsel for R5; Sri Abdul Hameed, Advocate for R6;

Sri K.Suman, Advocate for R7; Sri Mohan Rangum, Advocate for R8)

This RFA is filed under Section 41 R 1 R/W S 96 of

CPC, against the judgment and decree dated 30.06.2009 passed in O.S.No.16707/2002 on the file of the XXVI Addl. City Civil Judge, Mayo Hall, Bangalore City, decreeing the suit for ejectment and etc. RFA No.777/2009 Between: Smt. Daisy @ Devanayaki, Aged about 48 years, W/o Anand, R/at No.13, 2nd Cross Street, 3rd Circular Road, JAwaharnagar, Chennai. … Appellant

(By Sri K.Suman, Advocate) AND: 1. Sri C.M.Abu Mohammed, Since deceased by his LRs.

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1(a) Smt.C.A.Zohar, W/o Sri Abu Mohammed, Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore – 560 027.







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1(e) Sri C.A.Asif Afzal, S/o Late Sri Abu Mohammed, Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore – 560 027.






1(h) Sri C.A.Samina Rabia, S/o Late Sri Abu Mohammed, Major, R/at No.367, Akkithimmanahalli, Shanthinagar,

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Bangalore – 560 027. Represented by PA Holder Sri Munawar, Major, Rest – do –

2. Sri C.A.Mohammed Anis Gowhar, Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore – 560 027.






5. Sri V.Rajkumar, Aged about 67 years, S/o Late V.C.Venkatachalam, R/at No.137, Commercial Street, Bangalore. 6. Sri V.Sridharan,

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S/o Late V.C.Venkatachalam, Aged about 60 years, R/at No.172, Narayan Pillai Street, Bharathinagar, Bangalore – 560 001. 7. Smt.Premlatha, W/o Late V.Pandurangam, Dead by her LRs. 7(a) Mr.V.P.Suresh Kumar, S/o Late V.Pandurangam, Age: 40 years, R/o # 74, Desai Colony, III Street, Perambur High Road, Chennai – 600 012. 7(b). Mrs.Chitra D/o Late Pandurangam, 7(a) & 7(b) are R/o No.118,

Avadhana Pappiya Road, (A.P. Road), Choolai, Chennai – 600 112. 8. Smt.Kalavathi, D/o Late V.C.Venkatachalam, Aged about 42 years, R/at No.137, Commercial Street, Bangalore – 560 001. ... Respondents

(By Sri S.Sreevatsa, Senior Counsel for Sri M.D.Raghunath, Advocate for Legal Axis for

R1 (A to H) & R2-R4; Sri V.Lakshminarayana, Senior Counsel for R5;

Sri Abdul Hameed, Advocate for R6;

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Sri Prabhuling K.Navadagi, Advocate for R7(a) & R8; Sri V.A.Mohan Rangum, Advocate for R7(b))

This RFA is filed under Section 41 R 1 R/W S 96 of

CPC, against the judgment and decree dated 30.06.2009 passed in O.S.No.16707/2002 on the file of the XXVI Addl. City Civil Judge, Mayo Hall, Bangalore City, decreeing the suit for ejectment and etc. These RFAs is coming on for final hearing this day, Court delivered the following:

J U D G M E N T

All these appeals are directed against the judgment and

decree, dated 30.06.2009 passed by the Court of the XXVI

Addl. City Civil and Sessions Judge, Mayo Hall, Bangalore, in

O.S.No.16707/2002.

2. The parties are referred to as per their ranks in the

Trial Court. The four plaintiffs filed the suit agaisnt the four

defendants seeking a direction to the defendants to vacate

and deliver the vacant possession of the suit schedule

premises to the plaintiffs.

3. The case of the plaintiffs in brief is that they are the

joint owners of the suit property. The suit property fell to

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share of one Sri V.C.Damodaran in the family partition. He

sold the same to Riyaz Ul-Hassan and Smt.Salma Sabina on

30.07.1993. Thereafter the plaintiffs purchased it from Riyaz

Ul-Hassan and Smt.Salma Sabina by two registered sale

deeds, dated 01.09.1993 and 07.11.1998. On purchasing

the suit schedule property, the plaintiffs got the khatha

transferred to their names. They intimated the defendants of

their purchasing the properties by issuing the notice, dated

16.11.1998.

4. The defendants’ father Sri Venkatachalam was the

tenant under the previous owner/landlord Sri

V.C.Damodaran. The defendants committed default in the

payment of the monthly rents of `40/-. The plaintiffs filed the

H.R.C.No.590/1999 under Section 21(1)(h) and (j) of the

Karnataka Rent Control Act, 1961 (‘K.R.C.’ Act for short). As

the K.R.C. Act came to be replaced by the Karnataka Rent

Act, 1999 with effect from 31.12.2001 and as the suit

property consists of 14 square meters of non-residential

premises, the said H.R.C. petition came to be dismissed as

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not maintainable by the Court of Small Causes, by its order,

dated 17.04.2002. Thereafter, the plaintiffs issued the legal

notice, dated 26.06.2002 under Section 106 of the Transfer of

Property Act, 1882 (for short, ‘T.P. Act’) and on the failure of

the defendants to comply with the demand contained in the

legal notice, the plaintiffs instituted O.S.No.16707/2002

seeking the ejectment of the defendants from the suit

schedule property.

5. The defendant No.1 filed the elaborate written

statement contending that the suit is not maintainable. The

schedules and boundaries in the alleged sale deeds do not

tally, the alleged malafides against the plaintiffs. The sale

transactions were termed as fraudulent. C.V.Damodaran

could not have validly conveyed the suit schedule property.

The first defendant claimed independent title and exclusive

possession of the commercial premises bearing No.137,

Commercial Street, Civil Station, Bangalore. He emphatically

denied that his father V.C.Venkatachalam was the tenant.

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6. The defendant No.2 filed the written statement taking

the plea that the suit is hit by res-judicata.

Mr.V.C.Damodaran had filed H.R.C.No.200/1975 against the

defendants’ father, V.C.Venkatachalam and obtained the

eviction decree. The said Venkatachalam impugned the

eviction decree by filing C.R.P.No.1350/1976 before this

Court. This Court while upholding the eviction decree,

reserved the right to Venkatachalam to re-enter the suit

schedule premises. The said Damodaran did not put up any

building. He had also stopped collecting the rents from the

defendants. Only to overcome the said order passed by this

Court in C.R.P.No.1350/1976, the suit property is sold to the

plaintiffs. The defendants have perfected their title by

adverse possession.

7. The defendant Nos. 3 and 4 filed the written

statement taking the stand that the plaintiffs are not the

owners of the suit schedule property. The said Damodaran

had no right, title or interest in the suit schedule property.

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As he had no valid title to the suit schedule property, the sale

deeds executed by him can have no validity at all. They

averred that they did not receive any notice from the plaintiffs

either on 16.11.1998 or on any other day. As there is no

landlord - tenant relationship, the question of their paying the

rent would not arise at all.

8. Based on the rival pleadings, the Trial Court

formulated the following issues and additional issues:

(i) Does plaintiffs prove that they are the joint owners

of the schedule property?

(ii) Does plaintiffs further prove that the defendants’

father Sri Venkatachalam was tenant of schedule

premises under previous owner Sri

V.C.Damodaran and defendants being the L.Rs. of

original tenant continued tenancy?

(iii) Does plaintiff further prove that the defendants

are defaulters in paying rentals as pleaded in para

No.9 of the plaint?

(iv) Does plaintiff prove termination of tenancy?

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(v) Does defendants prove that the suit is hit by

principles of resjudicata in view of orders in

C.R.P.No.1350/1976?

(vi) Whether plaintiff is entitled for suit claim?

(vii) What order and decree?

Additional Issues:

(i) Whether the defendants prove that they have

acquired the title to the property adverse to the

interest of the plaintiffs?

(ii) Whether in view of the death of C.M.Abu

Mohammed, all the L.Rs. of C.M.Abu Mohammed

are entitled to be brought on record in terms of

Muslim Personal (Sunni) Law, whether the suit

survives for consideration or not?

9. On behalf of the plaintiffs, their General Power of

Attorney holder, C.A.Munavar is examined as PW1 marking

the documents at Exs.P1 to P45. On the defendants’ side, the

second defendant is examined as DW1, the defendant No.1 is

examined as DW2, the son of the first defendant is examined

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as DW3. The first defendant’s co-worker in the suit property

is examined as defendant No.4. The defendant No.4 is

examined as DW4(a). The defendant No.3 (a) is examined as

DW5. Seven documents are marked in Ex.D series.

10. Considering the pleadings, oral and documentary

evidence placed on its record, the Trial Court answered the

contentious issues in favour of the plaintiffs and decreed the

suit by directing the defendants to vacate and deliver the

vacant possession of the suit schedule property to the

plaintiffs within one month. Liberty was also reserved to the

plaintiffs to apply for mesne profits for the period starting

from the date of the institution of the suit till the date of

handing over of the possession of the schedule premises. It is

this judgment, which is being assailed in these appeals.

11. R.F.A.No.728/2009 is filed by the first defendant.

R.F.A.No.783/2009 is filed by the defendant Nos. 3(a) and 4

and R.F.A.No.777/2009 is filed by the defendant No.3(b).

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12. Sri V.Lakshminarayana, the learned counsel

appearing for the appellant in R.F.A.No.728/2009 submits

that the suit filed by the plaintiffs for ejecting the defendants

was not at all maintainable. According to him, the only

course open to the plaintiffs was to continue the execution

proceedings for enforcing the eviction decree granted in

H.R.C.No.200/1975 as modified in C.R.P.No.1350/1976. In

support of his submissions, he read out para 15 of the Apex

Court’s judgment in the case of V.UHIRAPATHI vs.

ASHRABALI & OTHERS reported in AIR 1998 SC 1168.

The said paragraph is extracted hereinbelow:

“15. It is clear, therefore, that if after the

filing of an execution petition in time, the decree

holder dies and his legal representatives do not

come on record or the judgment debtor dies and his

legal representatives are not brought on record,

then there is no abatement of the execution

petition. If there is no abatement, the position in the

eye of law is that the execution petition remains

pending on the file of the Execution Court. If it

remains pending and if no time limit is prescribed to

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bring the legal representatives on record in

execution proceedings, it is open in case of death of

the decree holder, for his legal representative to

come on record at any time. The execution

application cannot even be dismissed for default

behind the back of the decree holder’s legal

representatives. Incase of death of the judgment

debtor, the decree holder could file an application to

bring the legal representatives of the judgment

debtor on record, at any time. Of course, in case of

death of judgment-debtor, the Court can fix a

reasonable time for the said purpose and if the

decree holder does not file an application for the

aforesaid purpose, the Court can dismiss the

execution petition for default. But in any event the

execution petition cannot be dismissed as abated.

Alternatively, it is also open to the decree holder’s

legal representatives, to file a fresh execution

petition in case of death of the decree holder; or, in

case of death of the judgment debtor, the decree

holder can file a fresh execution petiton impleading

the legal representatives of the judgment debtor;

such a fresh execution petition, if filed, is, in law,

only a continuation of the pending execution

petition – the one which was filed in time by the

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decree holder initially. This is the position under the

Code of Civil Procedure.”

13. Sri Lakshminarayan submits that the entire suit

proceedings including the adducing of evidence have

proceeded on the footing that the lease is subsisting and that

it is continued from time to time, which is factually incorrect.

As of now, there is no jural relationship of landlord and

tenant between the plaintiffs and defendants. The landlord –

tenant relationship has come to an end with the decreeing of

the eviction petition on 16.6.1976 in HRC No.200/1975.

14. Alternatively, it was open to the plaintiffs to file

fresh execution petition for enforcing the said eviction order.

In support of his submissions, Sri Lakshminarayan relied

upon the Apex Court’s judgment in the case of DHANI RAM

GUPTA AND OTHERS vs. LALA SRI RAM AND ANOTHER

reported in 1980 (2) SCC 162, wherein it is held that once

the decree holder transfers his interest in the decree, the

transferee can move for the execution of the decree.

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15. As the execution proceedings were not continued

and as no fresh execution petition came to be filed within the

prescribed period of limitation, the suit ought to have been

dismissed, so contends the learned counsel.

16. Once the notice is served determining the tenancy

or indicating the intention to vacate the tenanted premises on

the expiry of the period shown in the notice, the tenancy

comes to an end. If the tenancy arrangement is to be

restored, it can only be with the consent of both the parties.

For making this submission, the learned counsel relies on

the Apex Court’s judgment in the case of CALCUTTA CREDIT

CORPORATION LTD. AND ANOTHER v. HAPPY HOMES

(PRIVATE) LTD., reported in AIR 1968 SC 471.

17. As the plaintiffs are the pendente-lite purchasers,

they are bound by the result of the decree. For canvassing

this point, the learned counsel relies on the Apex Court’s

judgment in the case of USHA SINHA v. DINA RAM AND

OTHERS reported in 2008 AIR SCW 2883.

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18. The learned counsel submits that the decree

obtained in H.R.C.No.200/1975, as modified in C.R.P.No.

1350/1976, is saved by virtue of the provisions contained in

Section 70-A of the Karnataka Rent Act, 1999. In this regard,

he relies on the Full Bench Decision of the Apex Court in the

case of MAHENDRA SAREE EMPORIUM vs. G.V.SRINIVAS

MURTHY reported in ILR 2004 Kar.4171.

19. He would contend that if the possession is not

recovered within 12 years from the date of the decree, the

right of the landlord to recover the possession is barred as per

Article 67 of the Limitation Act. He submits that going by the

plaintiffs’ own version, the defendants have been squatting on

the property in question even after the passing of the eviction

decree. The plaintiffs were not even collecting the rents.

Under these circumstances, there was no landlord - tenant

relationship and that therefore, the question of issuing the

notice under Section 106 of the T.P. Act, 1882 would not

arise. He relied on the following authorities in this regard:

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i) 1946 MLJ Reports 123 – Subbalakshmma vs. Seetharamaiah.

ii) AIR 1964 MP 207 – Shri Mahadeoji idol at

Bandhaivapura, Gohalpur, Isbalpur and another vs. Desai, S/o.Matadin and others.

iii) Calcutta Weekly Notes (Vol.26) 722 (PC) – Mohunt

Bhugwan Ramanuj Das vs. Ramakrishna Bose and another.

iv) 1913 Vol.XIX 853 – Motilal Roy vs. Kalu Mandav.

20. The learned counsel submits that the

damages/mesne profits cannot be awarded, if there is no

specific prayer for the same. In support of his submissions,

he relied on the following authorities:

i) (2007) 8 SCC 600 – Shivkumar Sharma v.

Santosh Kumari ii) (2008) 3 SCC 183 – Ganapati Madhav Sawant

vs. Dattur Madhav Sawant

21. He also relies on the Apex Court’s judgment in the

case of SMT.CHANDER KALI BAI AND OTHERS v. SHRI

JAGDISH SINGH THAKUR AND ANOTHER reported in

(1977) 4 SCC 402 for advancing the contention that no

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decree for damages can be awarded for the period anterior to

the passing of eviction decree.

22. The learned counsel sums up his arguments

submitting that the suit for ejectment is incompetent and

without the authority of law. The only course open to the

plaintiffs on their purchasing the property during the

pendency of the execution petition was to move an application

for the continuation of the execution proceedings. Since the

execution proceedings have been abandoned, the suit for

ejectment is not maintainable.

23. Sri Suman, the learned counsel for the appellant in

R.F.A.No.777/2009 submits that the suit for possession by

the landlord filed beyond the period of 12 years is barred by

limitation. The landlord’s right may be subsisting but the

remedy is lost. He submits that the abandonment of the

Execution Petition No.353/1977 is binding on the plaintiffs

also. The learned counsel submits that a separate suit was

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not maintainable on the first defendant resisting and

obstructing the execution proceedings.

24. To buttress his submission that the plaintiffs have

lost the right to recover the possession of the suit property, he

read out para 7 of the decision of Punjab and Haryana High

Court in the case of ZILE SINGH AND OTHERS vs. MUNSHI

AND OTHERS reported in AIR 1990 PUNJAB AND HARYANA

50, which is extracted hereinbelow:

“7. Article 139 of the Limitation Act 1908

equivalent to Article 67 of the Limitation Act, 1963

provides a period of 12 years for filing a suit for

possession by the landlord against a tenant who

continues to remain in possession of the land after

determination of the lease. The lease was

determined after the eviction order was passed.

The tenants continued to remain in possession

thereafter as found by the Courts below which is a

finding of fact and not open to challenge, in second

appeal. Even otherwise, this finding was not

assailed by the learned counsel for the defendants

for the reason that his clients were in possession

although the finding recorded by the Courts below

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is to the contrary. In the instant case, the

defendant-landlords did not file a suit for

possession within a period of 12 years from the

date of eviction order. Thus, their right to recover

possession of the land has been lost by lapse of

time. The landlords’ right may be subsisting but

remedy has been lost. They cannot have the legal

recourse to recover the possession.”

25. Sri Suman seriously disputes the service of notice

under Section 106 of the T.P. Act. He has also raised the

issue of incompetence of the plaintiffs’ GPAs. (General Power

of Attorney) holder to give the evidence, as he has no personal

knowledge of the developments in respect of the suit schedule

properties. He read out para 13 of the Apex Court judgment

in the case of JANKI VASHDEO BHOJWANI AND ANOTHER

vs. INDUSIND BANK LTD. AND OTHERS reported in ILR

2005 Kar.729. The same is extracted hereinbelow:

“13. Order III, Rules 1 and 2, CPC, empowers

the holder of power of attorney to “act” on behalf of

the principal. In our view the word “acts” employed

in Order III, Rules 1 and 2, CPC confines only in

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respect of “acts” done by the power of attorney

holder in exercise of power granted by the

instrument. The term “acts” would not include

deposing in place and instead of the principal. In

other words, if the power of attorney holder has

rendered some “acts” in pursuance to power of

attorney, he may depose for the principal in respect

of such acts, but he cannot depose for the principal

for the acts done by the principal and not by him.

Similarly, he cannot depose for the principal in

respect of the matter which only the principal can

have a personal knowledge and in respect of which

the principal is entitled to be cross-examined.”

26. Sri Prabhuling Navadgi, the learned counsel

appearing for the appellants in R.F.A.No.783/2009 submits

that the only course open to the pendente-lite transferee was

to continue the execution proceedings.

27. Sri Srivathsa, the learned Senior Counsel appearing

for Sri M.D.Raghunath for the respondent-landlords submits

that lot many arguments are being raised for the first time in

these appeal proceedings without there being any foundations

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for the same in the pleadings. None of the contentions urged

on behalf of the appellants like the respondent-landlords’ only

remedy is to continue or to file fresh execution case and no

fresh suit for eviction is maintainable, the suit is barred by

limitation as per Article 67 of the Limitation Act, etc., are

whispered in their respective written statements. He relies on

the Apex Court’s judgment in the case of UNION OF INDIA vs.

IBRAHIM UDDIN AND ANOTHER reported in

MANU/SC/0561/2012, wherein it is held that a decision of a

case cannot be based on the grounds outside the pleadings of

the parties. For advancing the submission that the pleadings

are the foundations of litigation, he relies on the Apex Court’s

judgment in the case of A.SHANMUGAM vs. ARIYA

KSHATRIYA RAJAKULA VAMSATHU MADALAYA

NANDHAVANA PARIPALANAI SANGAM REPRESENTED BY

ITS PRESIDENT AND OTHERS reported in (2012) 6 SCC

430.

28. Sri Srivathsa brings to my notice the affidavit

evidence of the appellant. In para 7 of the affidavit evidence,

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he has this to say: “I humbly submit that my father

V.C.C.Chellam used to pay `40/- rents per month”. He

sought to draw support from the Apex Court’s judgment in

the case of PADMAVATHI vs. HARIJAN SEWAK SANGH AND

OTHERS reported in (2012) 6 SCC 460 wherein the

prolonging of litigation by the L.Rs. of the deceased employee

of the society was deprecated. He has also relied on the

Hon'ble Supreme Court’s decision in the case of STATE OF

ANDHRA PRADESH AND OTHERS vs. D.RAGHUKUL

PERSHAD (DEAD) BY L.RS. AND OTHERS reported in

(2012) 8 SCC 584, wherein it is held that a tenant cannot

question the landlord’s title, however deficient it may be,

without surrendering the possession of the property to the

landlord.

29. He submits that the facts of the reported cases,

relied upon by the appellants’ side, are entirely different from

the facts of the case on hand.

30. The learned Senior Counsel submits that the

passing of a decree under Section 21(1) (j) of the K.R.C. Act

34

does not result in the termination of landlord - tenant

relationship. The Execution Court has not treated the first

defendant (appellant in RFA No.728/2009) as an obstructor.

Neither the first defendant nor any other defendant nor any

party has filed an application under Order 21 Rule 97 of

C.P.C.

31. At this juncture, Sri Lakshminarayana seeks leave

of the Court to make certain rejoinder submissions.

32. Sri Lakshminarayana submits that the plaintiffs

have to stand on their own strength and not on the weakness

in the case of the defendants. He submits that the appeal

proceedings are only the extension of the suit proceedings

and a question of law can always be raised in the course of

arguing out the appeal. He relies on the Apex Court’s

judgment in the case of BACHHAJ NAHAR vs. NILIMA

MANDAL AND OTHERS reported in AIR 2009 SC 1103. He

read out last part of para 12 of the said judgment. It is

extracted hereinbelow:

35

“12. ……………………………. Another aspect

to be noticed, is that the court can consider such a

case not specifically pleaded only when one of the

parties raises the same at the stage of arguments

by contending that the pleadings and issues are

sufficient to make out a particular case and that the

parties proceeded on that basis and had led

evidence on that case. Where neither party puts

forth such a contention, the court cannot obviously

make out such a case not pleaded, suo motu.”

33. He has also relied on the Apex Court’s judgment in

the case of NEDUNURI KAMESWARAMMA vs. SAMPATI

SUBBA RAO reported in AIR 1963 SC 884. It is held

therein that where the parties went to trial fully knowing the

rival case and led all the evidence not only in support of their

contentions but also in refutation of those of the other side, it

cannot be said that the omission to frame an issue was fatal

to the case, or that there was mis-trial, which vitiates the

proceedings; the suit could not have been dismissed on that

narrow ground.

36

34. He submits that the orders passed by this Court in

a number of writ petitions, filed by the appellants, are clearly

indicative of the objections to the maintainability of the suit

on the ground of limitation, adverse possession, res-judicata,

etc.,

35. The submissions of the learned advocates have

received my thoughtful consideration.

36. The first question that falls for my consideration is

whether there is any bar for the plaintiffs to file a suit for

ejectment, as they have not continued or resumed the

execution proceedings for enforcing the eviction decree

granted in H.R.C.No.200/1975 as modified in

C.R.P.No.1350/1976?

37. There is no legal regime that the subsequent

acquirers of title to the property cannot file the suit for

ejectment. The authorities relied upon by the appellants’ side

are of enabling nature and not of prohibiting nature. What is

conclusively reiterated therein is that the persons, who

37

acquire the legally recognizable interest in the land during the

pendency of the proceedings can continue the execution

proceedings or file fresh execution proceedings. But they do

not impose any embargo on the acquirers of title to the

property against filing a fresh suit.

38. The decision in the case of Calcutta Credit

Corporation (supra) does not come to the rescue of the

appellants in any way. In the said case, the tenant served the

notice on the land-lord intimating its intention to vacate the

premises, but later unilaterally withdrew the notice and

sublet a portion of the tenanted premises. The Apex Court

held that once the notice determining the tenancy is issued, it

cannot be withdrawn without the consent of the other party.

39. In the case of V.Uhirapathi (supra), the Hon’ble

Supreme Court examined as to whether the death of a decree

holder or judgment-debtor results in the abatement of

execution proceedings. In the case of Dhani Ram Gupta

(supra), the issue that fell for consideration was whether the

38

transferee can move for the execution of the decree despite

the subsequent adjustment between the original decree

holder and the judgment-debtor.

40. In the instant case, the question is not regarding the

permissibility of the continuation/revival/resumption of the

execution proceedings. The question is whether it was open

to the plaintiffs to file a suit for ejectment, when their

predecessor-in-title had obtained the eviction order but had

abandoned the execution proceedings mid-way on his

alienating the suit schedule property.

41. If the appellants’ arguments are accepted, it would

mean that the recovery of the possession has to be made only

by getting the eviction order in HRC No.200/1975 executed.

It is one thing to say that the new owner or successor-in-title

has the option of reviving the execution proceedings within

the prescribed period of limitation. But it is another thing to

say that he cannot file a fresh suit and that too for a larger

relief. It is always open to the party to take advantage of the

39

change in the law. The Karnataka Rent Act, 1999 was

brought in for replacing the K.R.C. Act, 1961. The Karnataka

Rent Act, 1999 is enacted to balance the interests of both the

landlord and the tenant. On the introduction of the said

legislation, a landlord can always file the eviction petition, if

the said Act has application for his case. If not so, he can file

a suit for ejectment.

42. That the plaintiffs, who have become the owners of

the premises in question subsequently, cannot be rendered

remediless by holding that they are not entitled to recover the

possession, as they have not got executed the eviction order

obtained by their predecessor-in-title. I have therefore no

hesitation in holding that the non-continuation of the

execution proceedings by the plaintiffs or by their vendors is

not fatal to the ejection suit.

43. The next question that falls for my consideration is

whether the suit is hit by res-judicata?

40

44. The eviction order obtained in HRC No.200/1975

was for taking the possession, demolishing the building,

reconstructing it and redelivering the rebuilt premises to the

defendants as tenants. As the plaintiffs have purchased the

suit schedule property for their bonafide use and occupation,

they cannot be precluded from filing a fresh suit for

ejectment. There is no impediment in filing another suit on

the subsequent or a new cause of action or on the basis of

change in the law.

45. The doctrine of res-judicata is not attracted to the

case on hand. In the H.R.C. 200/1975 what was invoked was

Section 21(1)(a),(f) and (j) of the K.R.C. Act. The ground of

requirement of the premises for self-occupation contained in

Section 21(1)(h) of the K.R.C. Act was never invoked. On the

other hand, one of the reasons for filing the ejectment suit, as

averred in para 8 of the plaint, is that the suit schedule

property is bonafidely required for the plaintiffs’ own use and

occupation.

41

46. The earlier eviction order passed in

H.R.C.No.200/1975 as modified in C.R.P.No.175/1976 is for

the re-entry of the tenants into the new premises on the re-

construction of the buildings. In O.S.No.16707/2002, the

relief is for the ejecting the defendants from the suit schedule

property.

47. On the point of res-judicata, the Trial Court has

held that the second suit for eviction is maintainable. The

Trial Court cannot be held to be at fault for holding so in view

of the Apex Court’s judgment in the case of SHRI AJIT

CHOPRA vs. SHRI SADHU RAM AND OTHERS reported in

AIR 2000 SC 212. The Apex Court has this to say in para 30

of the said judgment:

“30. The facts before us are again similar to those in

Amina v. Ahmad MANU/TN/0220/1949. That decision is

similar to Kutti Ali and the said ruling was followed. There

the first suit was for eviction solely based on tenancy and

the execution was allowed to become time bared as in the

case before us. The second suit for eviction based on title

was held maintainable and not barred. Satyanarayana

Rao, J. observed:

42

On the principle of the decision in Kutti Ali v. Chindan, I

think that the second suit based on title is not barred…….

A suit based on tenancy is very narrow in its scope and it

is unnecessary very often for the plaintiff landlord to plead

his title; it is enough for him in such a suit to prove the

lease and the tenancy and that it was validly terminated.

In that case too, the fresh suit was filed within 12

years from the date fixed in the earlier compromise decree.

The possession during the period granted under the

compromise was treated as permissible.”

48. For all these reasons, I uphold the Trial Court’s

finding that the suit is not hit by res-judicata.

49. The third question that falls for my consideration is

whether the defendants have perfected their title by way of

adverse possession?

50. The Trial Court has rightly disbelieved the claim of

adverse possession, as the second defendant has clearly

admitted that his father was a tenant and that the defendatns

were all brought on record as his legal representatives on his

demise. In the course of cross-examination, the first

43

defendant (DW-2) has admitted that his father never claimed

to be the owner in the proceedings in H.R.C.No.200/1975 and

C.R.P.No. 1375/1976. He has also admitted that at that time

he had not asserted that he is the owner of the schedule

property. The defendant No.2, who is examined as DW1, has

admitted that Damodaran was the original owner of the suit

property and that the plaintiffs have purchased it.

51. The defendants seem to be labouring under the

impression that by non-payment of the rent, the person in

possession of the property becomes the owner. As rightly

observed by the Trial Court, there is no explanation when the

defendants’ possession became adverse to the true owner.

52. The Trial Court has also referred to the following five

principles, which a person claiming adverse possession

should show as per the decision of this Court in the case of

BASAVANTRAO SINCE DECEASED BY HIS L.Rs. vs.

RAJKUMAR reported in ILR 2009 KAR 1099.:

(1) On what date he came in possession of property;

44

(2) What was the nature of his possession;

(3) Whether the factum of possession was known to the

other party (real owner)

(4) How long his possession has continued; and

(5) Whether his possession was open and undisturbed.

53. The Apex Court in the case of STATE OF ANDHRA

PRADESH AND OTHERS vs. D.RAGHUKUL PERSHAD

(DEAD) BY LRs. AND OTHERS reported in (2012) 8 SCC 584

has this to say in para 7 of its decision:

“7. The law is well settled by this Court in

D.Satyanarayana vs. P.Jagadish that the tenant

who has been let into possession by the landlord

cannot deny the landlord’s title however defective it

may be, so long as he has not openly surrendered

possession by surrender to his landlord. Although,

there are some exceptions to this general rule, none

of the exceptions, have been established by the

appellants in this case. Hence, the appellants who

were the tenants of the respondents will have to

surrender possession to the respondents before

they can challenge the title of the respondents.”

45

54. As the plea of adverse possession is not supported

by material particulars, the Trial Court has rightly answered

the additional issue No.1 on adverse possession against the

defendants. The Trial Court is further justified in holding that

a tenant cannot become a perpetual tenant automatically or

become the owner of the property by not paying the rents.

55. The argument with regard to the non-receipt of the

notice is to be considered. The stand of the defendant Nos.

3(a) and 4 is that they have not received the notice. The

L.C.R.s. reveal that the notices were issued to all the

defendants to their business addresses and also to their

residential addresses by two modes – courier service and

certificate of posting. Exs. P14 to 21 are the eight office

copies of the notices, dated 26.06.2002. Exs. P22 and P23

are the certificates of posting under which the notices were

sent to the defendants. Exs. P24 and P25 are the receipts

issued by the Blue Dart Express Limited for having sent the

46

notices under courier. Exs. P28 to P31 are the unserved

courier envelopes.

56. Despite all these, the defendant Nos. 3 and 4 are

ventilating their grievances that they have not received the

notices. The defendant Nos. 1 and 2 themselves have not

made an issue of the non-receipt of the notice. On the other

hand, it is their stand that as there is no landlord and tenant

relationship, they need not give any reply to the notice.

57. Taking all these materials and stand into

consideration, I find that the ruse of defendant Nos. 3 and 4

that they have not received the notices is not acceptable.

58. Similarly, I am unpersuaded to interfere in the

matter on the slender ground that only the G.P.A. holder of

the plaintiffs is examined. Because no question or suggestion

is put by the defendants to the effect that the G.P.A. holder

does not have the personal knowledge in the matter.

47

59. The Trial Court has also come down on the conduct

of the defendants. In para 67 of the its judgment it has

observed that the defendants are well aware that they are the

tenants in respect of the premises in question. The

defendants have set up the plea of independent right and

adverse possession and thereby avoided the payment of rent.

The defendants have resorted to the delaying tactics by

challenging every order on interlocutory application. The

defendants have preferred more than 20 writ petitions.

60. It is also worthwhile to notice that the point of

limitation, the non-maintainability of the suit on account of

the plaintiffs’ abandonment of their right to execute the

eviction order were not specifically raised in the written

statement.

61. As held by the Apex Court in the case of UNION OF

INDIA (supra), no party can be permitted to travel beyond his

pleading and that all the necessary and material facts should

48

be pleaded by the party in support of the case set up by it.

Similarly, in the case of A.SHANMUGHAM (supra), the Apex

Court has held that the pleadings must set forth sufficient

factual details so as to dispel false or exaggerated claims or

defence. The Apex Court has come down very heavily on the

parties, who abuse the process of law. In the said case, the

watchman had filed the suit for permanent injunction against

the owner of the premises. As the said suit was protracted for

long by resorting to falsehoods, concealments, distortions,

obstructions and confusion in the pleadings and documents,

the Apex Court held the watchman guilty of avoiding

ejectment and expressed its concern over the delayed

administration of civil justice prevalent in the present system.

62. In the case of PADMAVATHI (supra), the Apex

Court has this to say in paras 10, 16 and 17:

“10. The case at hand shows that frivolous defences

and frivolous litigation is a calculated venture involving a

no-risks situation. You have only to engage professionals

to prolong the litigation so as to deprive the rights of a

person and enjoy the fruits of illegalities. I consider that in

49

such cases where the court finds that using the courts as

a tool, a litigant has perpetuated illegalities or has

perpetuated an illegal possession, the court must impose

costs on such litigants which should be equal to the

benefits derived by the litigant and harm and deprivation

suffered by the rightful person so as to check the frivolous

litigation and prevent the people from reaping a rich

harvest of illegal acts through the courts. One of the aims

of every judicial system has to be to discourage unjust

enrichment using the courts as a tool. The costs imposed

by the courts must in all cases should be the real costs

equal to deprivation suffered by the rightful person.

16. Before parting with this case, I consider it

necessary to pen down that one of the reasons for

overflowing of the court dockets is the frivolous litigation in

which the courts are engaged by the litigants and which is

dragged on for as long as possible. Even if these litigants

ultimately lose the lis, they become the real victors and

have the last laugh. This class of people who perpetuate

illegal acts by obtaining stays and injunctions from the

courts must be made to pay the sufferer not only the entire

illegal gains made by them as costs to the person deprived

of his right, but also must be burdened with exemplary

costs.

17. The faith of people in judiciary can only be

sustained if the persons on the right side of the law do not

feel that even if they keep fighting for justice in the court

50

and ultimately win, they would turn out to be a fool since

winning a case after 20 or 30 years would make the

wrongdoer as real gainer, who had reaped the benefits for

all those year. Thus, it becomes the duty of the courts to

see that such wrongdoers are discouraged at every step

and even if they succeed in prolonging the litigation due to

their money power, ultimately they must suffer the costs

of all these years’ long litigation. Despite the settled legal

positions, the obvious wrongdoers, use one after another

tier of judicial review mechanism as a gamble, knowing

fully well that dice is always loaded in their favour, since

even if they lose, the time gained is the real gain. This

situation must be redeemed by the courts.”

63. On the mesne profits, the Trial Court has only

reserved the liberty to the plaintiffs to apply for the mesne

profits by filing a separate petition; an enquiry is required to

be held into the matter. Such a view also does not suffer

from any infirmity.

64. Thus, not finding any merit in any of the

contentions raised by the appellants’ side, I dismiss these

appeals. However, appreciating that the appellants have been

using the suit schedule property both for residential and non-

51

residential purpose for the last several years and the difficulty

in getting the alternative places at a short notice, I deem it

just to grant them one year’s time from today to vacate the

suit schedule property and hand over its possession to the

plaintiffs. No order as to costs.

Sd/- JUDGE

Cm/-

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED...

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