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Sunday, May 25, 2014

Eviction case - in the absence of dispute about legal status of petitioner - court should not misdirect itself for stray entire in one of the record with out considering the records and evidence - continued by sons of original owner who died pending case against the son of Tenant - Trial court decreed the case - High court dismissed as misdirected holding that the appellants here in are not the sons of Original owner basing of Ration card in which the father name of appellants was showned as Muneshwar Rao - Apex court held that Muneshwar Rao and Narayanappa are one the same as per Reg. Will Deed left by Narayanappa and further it is not case of the respondent that the petitioners are not the sons of Narayanappa - mere entry in Ration card can not over weigh the evidence - The car registration certificate attached present with affidavit when disputed can not be considered - Apex court set aside the High court judgement and restored the Trail court order = K. Narayanappa (D) By Lrs. .. Appellant(s) -vs- R. Prakash .. Respondent(s) =2014 (May.Part) http://judis.nic.in/supremecourt/filename=41539

 Eviction case - in the absence of dispute about legal status of petitioner -  court should not misdirect itself for stray entire in one of the record with out considering the records and evidence - continued by sons of original owner who died pending case against the son of Tenant - Trial court decreed the case - High court dismissed as misdirected holding that the appellants here in are not the sons of Original owner basing of Ration card in which the father name of appellants was showned as Muneshwar Rao - Apex court held that Muneshwar Rao and Narayanappa are one the same as per Reg. Will Deed left by Narayanappa and further it is not case of the respondent that the petitioners are not the sons of Narayanappa - mere entry in Ration card can not over weigh the evidence - The car registration certificate attached present with affidavit when disputed can not be considered - Apex court set aside the High court judgement and restored the Trail court order =

 We carefully considered the rival contentions.  
 Exh.P1  is  the
      original lease deed dated 29.5.1967 and as per  the  recitals  therein
      the  petition  property  was  let  out  to  late  Ramaiah,  father  of
      respondent no.1 herein, on a monthly rent  of  Rs.35/-  by  the  owner
      Narayanappa.  
The jural relationship of landlord  and  tenant  between
      late Narayanappa and late  Ramaiah  is  thus  established  and  it  is
      admitted by respondent no.1 herein as held by Courts below.  
The Trial
      Court found that the appellants  herein/petitioners  established  that
      they require petition premises for their own use  and  occupation  and
      ordered delivery of vacant possession to them besides the direction to
      pay the rental arrears.  
Considering the contention of respondent no.1
      herein that the appellants herein are not the legal heirs of  original
      lessor Narayanappa, 
the High Court directed the appellants  herein  to
      have their rights adjudicated before the  competent  Civil  Court  and
      thereafter to proceed with the Eviction Petition.

      8.    The respondent no.1 herein in support of his plea  produced  two
      documents, namely, Ration card and copy of Registration certificate of
      Car bearing no.KA-05-EX-2037.  
This Registration certificate, which is
      now annexed with the counter affidavit, was not part of record  before
      the  Courts  below  and  cannot  be  taken  into  consideration   more
      particularly when it is being disputed.  
The Trial Court while dealing
      with the entries in the  Ration  card,  took  into  consideration  the
      registered Will executed  by  late  K.  Narayanappa,  
wherein,  it  is
      recited that testator is K. Narayanappa @ Muneshwar Rao and rendered a
      finding that Narayanappa and  Muneshwar  Rao  are  one  and  the  same
      person.    
It is also relevant to point out that the Trial Court after
      conducting  inquiry,  ordered  the  impleadment  of  third   appellant
      Sundamma as  legal  representative  of  deceased  Narayanappa  in  the
      Eviction Petition and the said order has become final. 
 In any  event,
      the contention of the respondent no.1 herein that appellants 1  and  2
      herein are not the sons of late Narayanappa is liable to  be  rejected
      for the reason that all the three of them jointly filed  the  Eviction
      Petition  against  respondent  no.1  herein  and  in   the   petition,
      appellants 1 and 2 are described as  sons  of  late  Narayanappa.   
In
      other words Narayanappa declared appellants 1 and 2 herein as his sons
      while  seeking  eviction  of  respondent  no.1  herein.  
 It  is  also
      pertinent to point out that respondent no.1  herein,  in  his  counter
      filed in the Eviction Petition when Narayanappa  was  alive,  did  not
      raise any objection that appellants 1 and 2 herein, are not  the  sons
      of Narayanappa and on the other hand his only contention was  that  he
      has prescribed title to the petition premises by  adverse  possession.
      
The High Court misdirected itself  in  relegating  the  appellants  to
      Civil Court as rightly  contended  by  the  learned  counsel  for  the
      appellants and the order is unsustainable.

      9.    The appeal is allowed and the impugned order of the  High  Court
      is set aside and the order of the Trial Court is restored.   No  order
      as to costs.
2014 (May.Part) http://judis.nic.in/supremecourt/filename=41539
T.S. THAKUR, C. NAGAPPAN
 

                                                        NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA


                        CIVIL APPELLATE JURISDICTION


                      CIVIL APPEAL NO.  5569   OF 2014
      [Arising out of Special Leave Petition (Civil) No.26741 of  2011]





      K. Narayanappa (D) By Lrs.             ..           Appellant(s)

                                    -vs-

      R. Prakash                             ..           Respondent(s)




                               J U D G M E N T




      C. NAGAPPAN, J.




          1. Leave granted.




      2.    This appeal is directed against the order dated 9.2.2011  passed
      by the High Court of Karnataka at  Bangalore  in  H.R.R.P.  No.246  of
      2010.

      3.    Briefly the facts are as follows : Narayanappa while alive along
      with his two sons namely the appellants 1 and 2 herein filed  petition
      in HRC No.32 of 2006 under Section  27(2)(a)(c)(o)(p)(r)  and  Section
      31(1)(c) of the Karnataka Rent  Act  seeking  eviction  of  the  first
      respondent herein on the premise that  Narayanappa  was  the  absolute
      owner of the premises bearing no.15, new no.20 situated at Hoovadigara
      Galli, Chikpet, Bangalore measuring  25  x  25  ft.  with  dilapidated
      structure and he entered into a lease deed dated 29.5.1967  permitting
      Ramaiah, the late father of respondent no.1 herein,  to  demolish  the
      old structure and put up new structure and put him in  possession  for
      15 years with monthly rent of Rs.35/- and with the option to renew the
      lease for further period on  agreed  terms.   Ramaiah  demolished  the
      structure and built a new building and let it out to  several  persons
      and was collecting the rents.  It is further averred in  the  Eviction
      Petition that Ramaiah failed to  surrender  possession  after  fifteen
      years even after demand and failed to pay rent also and he died in the
      year 1986 and Narayanappa called upon his widow and children to vacate
      and they did not do so and the respondent  no.1  herein  admitted  the
      arrears of rent and issued cheque for  Rs.525/-  towards  arrear  upto
      2001 and it was accounted for.  On calculation it was found that a sum
      of Rs. 3,500/- was due as arrears of rent and Narayanappa issued legal
      notice dated 5.12.2005 to the respondent no.1 herein  and  others  and
      they failed to vacate and in their  reply  denied  the  right  of  the
      appellants to file eviction proceedings which led to the filing of the
      Eviction Petition by the appellants against the respondent no.1 herein
      and others.  Respondent no.1 herein, in  his  counter  filed  therein,
      admitted the lease agreement  dated  29.5.1967  entered  into  between
      Narayanappa and his father Ramaiah and the putting up of new structure
      by his father and renting it out to others.  However, it  was  further
      averred in the counter that after the  death  of  Ramaiah,  respondent
      no.1 herein along with respondent no.2 in the main petition,  were  in
      continuous possession of the premises for over 45  years,  even  after
      the expiry of 15 years lease  period  and  thus  prescribed  title  by
      adverse possession and there is no jural relationship of landlord  and
      tenant between the appellants and them.

      4.    During the pendency of the Eviction Petition Narayanappa died on
      13.7.2006 and his wife namely the  third  appellant  herein  filed  an
      application in I.A. No.7 in the Eviction Petition seeking  to  implead
      her also as a legal representative of Narayanappa.   That  application
      was contested by respondent no.1 herein by pleading  that  Narayanappa
      died as a bachelor and the appellants herein are not his legal  heirs.
      After inquiry the Trial Court allowed the application  and  the  third
      appellant herein was brought  on  record.   In  the  trial  the  first
      appellant herein examined  himself  as  PW1  and  one  Chandrappa  was
      examined as PW2 and Exh.P1 to P14 came to be  marked  on  their  side.
      Respondent no.1 herein examined himself as RW1 and marked documents at
      R1 and R25 on his side.

      5.    The  Trial  Court  on  consideration  of  oral  and  documentary
      evidence by order dated 27.7.2010 allowed the petition  directing  the
      respondent no.1 herein and others to pay arrears of rent at  the  rate
      of Rs.35/- per month from 1.12.2001 to  the  date  of  the  order  and
      further directed the respondent no.1 herein and  others  to  quit  and
      deliver  the  vacant  possession  of  the  schedule  premises  to  the
      appellants herein, within three months from the  date  of  the  order.
      Respondent no.1 herein preferred revision in H.R.R.P. No.246  of  2010
      and the High Court after  hearing  both  sides  allowed  the  Revision
      Petition and stayed the proceeding in HRC No.32  of  2008  before  the
      Trial Court by directing the appellants herein to  have  their  rights
      adjudicated before the competent Civil Court.   Challenging  the  said
      order the appellants have preferred the present appeal.

      6.    The learned counsel appearing for the appellants contended  that
      appellants 1 and 2 herein were arrayed as sons of   Narayanappa  along
      with him in the Eviction Petition and all the three appellants are the
      original petitioners therein and later third  appellant  Sundamma  was
      impleaded as wife of late Narayanappa after inquiry by the Trial Court
      and that order was never challenged and  became  final  and  when  the
      jural relationship  is  admitted  it  is  respondent  no.1  herein  to
      approach the Civil Court seeking for decree that  the  appellants  are
      not owners of the petition property and the impugned order of the High
      Court relegating the appellants to Civil Court is not justifiable  and
      it is liable to be set aside.  Per contra Mr. Sri  Gurukrishna  Kumar,
      learned senior counsel  appearing  for  the  respondent  no.1  herein,
      contended  that  Narayanappa  died  as  a  bachelor  and  the  marital
      relationship between third appellant Sundamma and late Narayanappa has
      not been proved and there is no proof for the claim of the  appellants
      that Narayanappa was also called as Muneshwar Rao and these are issues
      that are to be decided by the competent Civil Court as rightly held by
      the High Court.

      7.    We carefully considered the rival contentions.   Exh.P1  is  the
      original lease deed dated 29.5.1967 and as per  the  recitals  therein
      the  petition  property  was  let  out  to  late  Ramaiah,  father  of
      respondent no.1 herein, on a monthly rent  of  Rs.35/-  by  the  owner
      Narayanappa.  The jural relationship of landlord  and  tenant  between
      late Narayanappa and late  Ramaiah  is  thus  established  and  it  is
      admitted by respondent no.1 herein as held by Courts below.  The Trial
      Court found that the appellants  herein/petitioners  established  that
      they require petition premises for their own use  and  occupation  and
      ordered delivery of vacant possession to them besides the direction to
      pay the rental arrears.  Considering the contention of respondent no.1
      herein that the appellants herein are not the legal heirs of  original
      lessor Narayanappa, the High Court directed the appellants  herein  to
      have their rights adjudicated before the  competent  Civil  Court  and
      thereafter to proceed with the Eviction Petition.

      8.    The respondent no.1 herein in support of his plea  produced  two
      documents, namely, Ration card and copy of Registration certificate of
      Car bearing no.KA-05-EX-2037.  This Registration certificate, which is
      now annexed with the counter affidavit, was not part of record  before
      the  Courts  below  and  cannot  be  taken  into  consideration   more
      particularly when it is being disputed.  The Trial Court while dealing
      with the entries in the  Ration  card,  took  into  consideration  the
      registered Will executed  by  late  K.  Narayanappa,  wherein,  it  is
      recited that testator is K. Narayanappa @ Muneshwar Rao and rendered a
      finding that Narayanappa and  Muneshwar  Rao  are  one  and  the  same
      person.    It is also relevant to point out that the Trial Court after
      conducting  inquiry,  ordered  the  impleadment  of  third   appellant
      Sundamma as  legal  representative  of  deceased  Narayanappa  in  the
      Eviction Petition and the said order has become final.  In any  event,
      the contention of the respondent no.1 herein that appellants 1  and  2
      herein are not the sons of late Narayanappa is liable to  be  rejected
      for the reason that all the three of them jointly filed  the  Eviction
      Petition  against  respondent  no.1  herein  and  in   the   petition,
      appellants 1 and 2 are described as  sons  of  late  Narayanappa.   In
      other words Narayanappa declared appellants 1 and 2 herein as his sons
      while  seeking  eviction  of  respondent  no.1  herein.   It  is  also
      pertinent to point out that respondent no.1  herein,  in  his  counter
      filed in the Eviction Petition when Narayanappa  was  alive,  did  not
      raise any objection that appellants 1 and 2 herein, are not  the  sons
      of Narayanappa and on the other hand his only contention was  that  he
      has prescribed title to the petition premises by  adverse  possession.
      The High Court misdirected itself  in  relegating  the  appellants  to
      Civil Court as rightly  contended  by  the  learned  counsel  for  the
      appellants and the order is unsustainable.

      9.    The appeal is allowed and the impugned order of the  High  Court
      is set aside and the order of the Trial Court is restored.   No  order
      as to costs.




                                                               ………………………….J.
                                                               (T.S. Thakur)




                                                               ……………………………J.
                                                               (C. Nagappan)
    New Delhi;
    May   9, 2014




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