1
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.
2
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.
Represented by PA Holder Sri Munawar, Major, Rest – do –
1(d) Sri C.A.Ammer Akther, 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(e) Sri C.A.Asif Afzal, S/o Late Sri Abu Mohammed, Major, R/at No.367, Akkithimmanahalli,
3
Shanthinagar, Bangalore – 560 027.
Represented by PA Holder Sri Munawar, Major, Rest – do –
1(f) Sri C.A.Aqueel Azhar, 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(g) Sri C.A.Sami Jauhar, 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(h) Sri C.A.Samina Rabia, 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 –
2. Sri C.A.Mohammed Anis Gowhar, Major, R/at No.367, Akkithimmanahalli,
4
Shanthinagar, Bangalore – 560 027.
Represented by PA Holder Sri Munawar, Major, Rest – do –
3. Smt.Shamshad Banu, Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore – 560 027.
Represented by PA Holder Sri Munawar, Major, Rest – do –
4. Smt. Safina Aiysha, Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore – 560 027.
Represented by PA Holder Sri Munawar, Major, Rest – do –
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,
5
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.
6
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.
Represented by PA Holder Sri Munawar Major, Rest – do –
7
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.
Represented by PA Holder Sri Munawar, Major, Rest – do –
1(d) Sri C.A.Ammer Akther, 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(e) Sri C.A.Asif Afzal, 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 –
8
1(f) Sri C.A.Aqueel Azhar, 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(g) Sri C.A.Sami Jauhar, 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(h) Sri C.A.Samina Rabia, 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 –
2. Sri C.A.Mohammed Anis Gowhar, Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore – 560 027.
Represented by PA Holder Sri Munawar, Major, Rest – do –
9
3. Smt.Shamshad Banu, Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore – 560 027.
Represented by PA Holder Sri Munawar, Major, Rest – do –
4. Smt. Safina Aiysha, Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore – 560 027.
Represented by PA Holder Sri Munawar, Major, Rest – do –
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,
10
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.
11
1(a) Smt.C.A.Zohar, W/o Sri Abu Mohammed, Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore – 560 027.
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.
Represented by PA Holder Sri Munawar, Major, Rest – do –
1(d) Sri C.A.Ammer Akther, S/o Late Sri Abu Mohammed, Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore – 560 027.
12
Represented by PA Holder Sri Munawar, Major, Rest – do –
1(e) Sri C.A.Asif Afzal, 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(f) Sri C.A.Aqueel Azhar, 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(g) Sri C.A.Sami Jauhar, 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(h) Sri C.A.Samina Rabia, S/o Late Sri Abu Mohammed, Major, R/at No.367, Akkithimmanahalli, Shanthinagar,
13
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.
Represented by PA Holder Sri Munawar, Major, Rest – do –
3. Smt.Shamshad Banu, Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore – 560 027.
Represented by PA Holder Sri Munawar, Major, Rest – do –
4. Smt. Safina Aiysha, Major, R/at No.367, Akkithimmanahalli, Shanthinagar, Bangalore – 560 027.
Represented by PA Holder Sri Munawar, Major, Rest – do –
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,
14
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;
15
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
16
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
17
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.
18
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.
19
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?
20
(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
21
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).
22
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
23
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
24
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.
25
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.
26
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:
27
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
28
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
29
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
30
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
31
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
32
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,
33
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/-