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Iliyas and Others Vs. Dinkar Pandurang Bhate and Others - Court Judgment

LegalCrystal Citation
CourtKarnataka Dharwad High Court
Decided On
Case NumberRegular Second Appeal No. 100284 of 2015
Judge
AppellantIliyas and Others
RespondentDinkar Pandurang Bhate and Others
Excerpt:
.....the suit filed for possession and mesne profits.) 1. the case of the plaintiff is that the suit property is a commercial shop measuring 11 x29 and 3. 8x18 total measuring 44 square meters situated in belgaum. it was leased by her mother in favour of the defendant. the defendant was paying a monthly rent of rs.250/-. in view of the amendment of the karnataka rent act, the property in question was beyond the jurisdiction of the karnataka rent control act. hence, in order to seek possession, the lease was terminated and the instant suit was tiled seeking for possession and mesne profits. 2. on service of summons, the defendants entered appearance and denied the plaint averments. he contended that the property in question is a different number than what is pleaded in the suit.....
Judgment:

(Prayer: This regular second appeal is filed under section 100 of CPC against the judgment and decree dated 24.01.2015 passed in R.A. No.313 of 2009 on the file of the presiding officer, fast track court - III belgaum, allowing the appeal and setting aside the judgment and decree dated 29.10.2005 passed in O.S. No.627 of 2003 on the file of the III additional civil judge (JR. DR), belgaum, dismissing the suit filed for possession and mesne profits.)

1. The case of the plaintiff is that the suit property is a commercial shop measuring 11 X29 and 3. 8X18 total measuring 44 square meters situated in Belgaum. It was leased by her mother in favour of the defendant. The defendant was paying a monthly rent of Rs.250/-. In view of the amendment of the Karnataka Rent Act, the property in question was beyond the jurisdiction of the Karnataka Rent Control Act. Hence, in order to seek possession, the lease was terminated and the instant suit was tiled seeking for possession and mesne profits.

2. On service of summons, the defendants entered appearance and denied the plaint averments. He contended that the property in question is a different number than what is pleaded in the suit Therefore, the property is not identified. Therefore, the question of evicting him does not arise for consideration. That the plaintiff is not entitled for the past and future mesne profits.

3. Based on the pleadings, the Trial Court framed the following issues:

1. Whether the plaintiff proves that, she is owner and

landlord of suit property?

3. Whether the plaintiff proves that, the defendant has violated the agreement of lease and he has construction of a room 4 X18 in the suit property?

3. Whether the plaintiff proves that, she is need the suit property for her son s business?

4. Whether the plaintiff proves that the defendant is due rent Rs.2,750/-?

5. Whether the plaintiff proves that, she is terminated defendant tenancy as per Section 106 of T.P.Act?

6. Whether the plaintiff is entitled mesne profits from the defendant?

7. Whether the plaintiff is entitled relief sought for?

8. What order or decree?

4.Plaintiff examined himself as P.W.1 and marked 4 documents. The power of attorney holder of the defendant was examined as D.W.1 and marked 25 documents. Issue No.5 was held in the negative and the other issues as would not arise for consideration. The Trial Court dismissed the suit. Aggrieved by the same, the plaintiff preferred an appeal. The First Appellate Court allowed the appeal, set aside the judgment and decree of the Trial Court and decreed the suit of the plaintiff with costs. The defendants were directed to deliver vacant possession of the suit premises within three months from that date and other consequential reliefs. Aggrieved by the same, the defendants filed this appeal.

5. Learned counsel for the appellant contends that the judgment and decree of the First Appellate Court is perverse. That the First Appellate Court failed to consider that the plaintiff is in possession of 1039/1A. That the property in question is 1039/C. Therefore, a decree cannot be granted. Hence, he pleads that the appeal be allowed.

6. On hearing learned counsel, I am of the considered view that there is no merit in this appeal.

7. The right of the defendants as stems from Ex.D-1. Ex.D-1, which is a lease deed executed in favour of the defendants. Based on the said lease agreement, the defendants were put in possession. There is no other document on which the defendants can support their possession except Ex.P-1. Even assuming the contention of the defendant is to be accepted that there is a difference of the number of property, the same would not come to their benefit. Admittedly they are in possession of a leased premises. Whether it is numbered as 1039/A or 1039/C is of no real consequence.

8. The other material and evidence on record would clearly indicate that the property in possession of the defendants is the very property leased out to the defendants. Therefore, such a contention cannot be accepted.

9. Issue No.5 is whether the lease deed was validly terminated in accordance with law. The said issue has been rightly answered in favour of the plaintiff.

10. Under these circumstances, I do not find any good ground to interferon with the well considered order of the First Appellate Court. The First Appellate Court was justified in reversing the finding of the Trial Court. The Trial Court misdirected itself in going into the unnecessary dispute raised by the defendants. As held herein above, notwithstanding such a contention being taken by the defendants, the property is one and the same. The differences in number really does not matter. It is not the case of the defendant that there are two separate properties with distinct numbers. Ultimately the entire dispute is only so far as one property is concerned in which the defendants were put into possession.

All these crucial aspects were overlooked by the Trial Court. The First Appellate Court was therefore justified in re -appreciating the evidence and reversing the judgment and decree of the Trial Court.

For all these reasons, I do not find any substantial question of law arises for consideration. The entire case of the appellant revolves only around facts.

Consequently the appeal being devoid of merit is dismissed.

Appellants herein are granted three months from today to hand over the vacant possession of the suit premises to the respondent plaintiff. The rest of the order of the First Appellate Court is sustained.

The amount in deposit before this Court is directed to be released in favour of the respondents/plaintiffs.

All pending I.As. stand rejected.

No costs.


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