Arun Kumar and Others vs M. Nagappa Shetty

Aravind Kumar, J—This is plaintiffs second appeal questioning the correctness and legality of the judgment and decree passed by IV Addl. District and Sessions Judge, D.K., Mangalore in R.A. No. 705/2004 (Old No. R.A. 151/1999) dated 22.02.2014 whereunder first appellate Court has set aside the findings recorded by V Addl. Civil Judge (Jr.Dn), Mangalore, D.K in O.S. No. 652/1996 on issue Nos. 3 and 4 by allowing the appeal and rejecting the prayer of plaintiffs for perpetual injunction and in effect dismissed the suit of plaintiff which had been filed for permanent injunction.

I have heard the arguments of Sriyuths G. Balakrishna Shastry, learned Advocate appearing for appellants and Nataraj Ballal, learned Advocate appearing for respondent and perused the judgment and decree passed by the Courts below.

This Court is of the considered view that there is no substantial question of law involved in this appeal for being admitted, adjudicated and answered for the reasons indicated herein below.

Parties are referred to as per their rank in the trial Court.

Plaintiffs had sought for permanent prohibitory injunction against defendant contending that they have succeeded to the suit schedule property as legal representatives and successors of their ancestor late Smt. Padma Hengsu who had been allotted the suit schedule property amongst others as per the terms of registered deed of partition dated 14.02.1932 and after getting the schedule property under partition, she had given the same on permanent lease in favour of one Sri K. Paidal Vaidyar as per Mulageni deed dated 28.01.1954, he in turn, transferred said right in favour of Mrs. Sanjeevi R. Malli as per deed of transfer dated 14.02.1963 and she in turn transferred her right in favour of Smt. Seetha on 14.09.1964 as per registered document. It was further contended by plaintiffs that said Smt. Seetha Hengsu expired in the year 1984 and her mother who was alive at that time by name Smt. Dharamma Shetty claimed mulageni right by succession and she expired leaving behind a Will dated 13.12.1984 wherein she had bequeathed suit schedule property in favour of her grandson namely, son of Smt. Seetha Hengsu i.e., defendant. Defendant claiming right under the Will had filed declaration claiming occupancy rights before the Land Tribunal, Mangalore, which was rejected on the ground that suit schedule property is not an agricultural property. Hence, plaintiffs claiming to be the owners of suit schedule property having succeeded under late Smt. Padma Hengsu claim that tenancy right of suit schedule property has been transferred to various persons and present right is claimed by the successors of the transferee namely, defendant herein.

It was contended that defendant is bound by the contract of tenancy reduced into writing in the year 1954 and on account of default in payment of rent continuously for a period of two years, permanent tenancy stood cancelled and as such, owners have become entitled to enter possession of the property. It was also contended that there is forfeiture and re-entry clause in the contract of tenancy under the said deed of contract and as such, owners are entitled to invoke provisions of the Karnataka Rent Control Act. Hence, reserving their right to proceed under the said Act for possession. Plaintiffs also contended that defendant has given power of attorney to one Sri Sathish Kumar for the purpose of formation of residential sites in the suit schedule property and to sell to third parties in violation of terms of the contract of tenancy to which defendant has no right, title or interest and he cannot change nature of the property or part with possession or alienate the property in any manner since he is a statutory tenant. On these amongst other grounds raised in the plaint, they prayed for permanent prohibitory injunction to restrain defendant or anyone claiming through him from changing nature or alienating or committing waste and damage of the schedule property.

On service of suit summons, defendant appeared and filed written statement admitting that he is Mulagenidar in respect of plaint ''A'' schedule property and also contended that suit schedule property is a non-agricultural property. However, defendant denied that plaintiffs are sole Mulagars of plaint ''A'' schedule property. Defendant denied alleged default in payment of rent after 1972-73 and contended that mulageni had been paid upto 1986 to one Smt. Bhavani and after the death of Smt. Bhavani, defendant was not able to gather information about heirs of Smt. Bhavani and as such, rentals are in arrears. It was also contended that on receipt of suit summons, defendant has sent up-to-date rents/mulageni by demand draft along with covering letter on 20.01.1997 to first plaintiff by registered post which has not been received by first plaintiff. The forfeiture claimed by plaintiff was denied on the ground that there is no notice issued terminating lease as contemplated under Section 111(g) of the Transfer of Property Act, 1882 on the ground of forfeiture. It was also contended when there is no such notice issued and if defendant is a statutory tenant, plaintiffs cannot invoke provisions of Transfer of Property Act, 1882 to contend that there is forfeiture. It was also contended that Karnataka Rent Control Act does not contain any provision which determines the tenancy of mulageni lease on the ground of non payment of rents/mulageni and even otherwise, it was contended that Section 21(1)(a) of the Karnataka Rent Control Act commands issuance of two months notice and only on such failure to pay rents, plaintiffs would get cause of action to vacate the premises and on account of such notice having not been issued, plaintiffs cannot now contend determination of lease under Karnataka Rent Control Act. The right of defendant to alienate was also asserted.

It was contended by the defendant that he has not committed any act of waste or damage of suit schedule property and on account of mulageni deed executed in the year 1954 authorising the mulagenidars to effect improvements in the lease hold property, plaintiffs cannot seek an order of restraint against defendant from effecting improvement of the property. It was also contended that there was already a road passing through the plaint schedule property and said road is being repaired by defendant and plaintiffs cannot object to the same. It was also contended that allegation of acts of waste or damage made in the plaint are vague and bereft of material particulars and as such plaintiffs are not entitled to the equitable relief of injunction. It was also contended that defendant was required to lay a channel in his property for regulating flow of rain water which work is being carried out by him and as such, plaintiffs cannot seek the relief of injunction. By way of alternate plea, it was contended that even if there is forfeiture of lease as contended by plaintiffs which had occurred in the year 1973, suit filed beyond 12 years thereafter is barred by limitation. It was contended that reliefs claimed by plaintiff is barred by the Specific Relief Act, 1963. Hence, defendant prayed for dismissal of the suit.

On the basis of pleadings of the parties, trial Court framed following issues:

"1) Whether the appellant made out sufficient grounds to allow I.A. Nos. 3 and 4 filed under Order 41 Rule 27 of C.P.C.?

2) Whether the appellant/defendant proves that the permanent injunction decree passed by the trial Court is contrary to the pleading and evidence of both the parties and not in accordance with law.?

3) Whether the appellant/defendant made out sufficient grounds to interfere with the impugned judgment and decree?

4) What order?"

Both parties got themselves examined as P.W.1 and D.W.1. Defendant in support of his claim, examined one witness as D.W.2 and both parties have produced documentary evidence by getting them marked as Exs.P-1 to P-9 and Exs.D-1 to D-6 respectively. After considering the arguments advanced by learned Advocates appearing for the parties and on evaluation of the pleadings and evidence, trial Court decreed the suit and restrained the defendant from changing nature of the property or alienating the same. It came to be held by the trial Court that there is default in payment of rent and plaintiff ought to have given notice of forfeiture and suit being for bare injunction, said issue is not being delved upon. It was further held by the trial Court that on account of assertion made by defendant that he has got every right to effect the improvement as per Mulageni deed dated 14.02.1963 - Ex. P-4 itself is sufficient to hold that defendant cannot have right to effect the improvement or conveyed the property and as such trial Court granted an order of perpetual injunction.

Being aggrieved by the judgment and decree passed by trial Court, defendant filed an appeal in R.A. No. 705/2004 (old No. R.A. No. 151/1999). During the course of appeal, appellant filed applications - I.A. Nos. 3 and 4 under Order 41 Rule 27 CPC seeking production of additional evidence. Thereafter, appellate Court heard the matter and formulated following points for its consideration:

"1) Whether the plaintiffs prove that in case of default by the defendant in payment of rent continuously for a period of 2 years, the permanent tenancy right stands forfeited and the plaintiff entitled to enter into possession?

2) Whether the plaintiffs prove that the defendant committed default in payment of rent after 1943?

3) Whether the plaintiffs prove that there is illegal interference by the defendant?

4) Whether the plaintiff is entitled for a relief sought?

5) What order or decree?"

After re-appreciating the evidence available on record and on evaluating the same, lower appellate Court reversed the finding of trial Court recorded on issue Nos. 3 and 4 and accordingly set aside the same and dissolved the decree of permanent injunction granted in favour of the plaintiffs. Lower appellate Court has held that plaintiffs have not explained as to how and in what manner defendant is changing the suit properties or causing damage to the suit properties. It was also noticed by lower appellate Court that plaintiffs had not taken steps to recover possession of the disputed properties either under the Transfer of Property Act, 1882 or under the Karnataka Rent Control Act, 1961. Lower appellant Court noticed from the pleadings as well as cross examination of P.W. 1 that there has been inconsistency and except self serving testimony of plaintiffs, there was no material available on record to arrive at the conclusion that suit properties are being alienated by defendant or to confirm that there were trees in existence which have been got cut and removed by defendant. On this ground amongst other reasons as assigned by the lower appellate Court, appeal came to be allowed.

In a second appeal, question of re-agitating the issues urged before trial Court as well as before first appellate Court would not arise. Scope of second appeal being limited to scrutiny and examination of the judgments of the Court below within the frame work of substantial questions of law alone will be examined. Non-appreciation of available evidence or erroneous appreciation of available evidence would also be an illegality giving scope for formulating substantial questions of law for being answered.

Keeping this in mind, when the facts on hand are examined, it would clearly go to show that plaintiffs have not disputed that defendant is successor-in-interest of mulageni rights which was granted to plaintiffs'' successor Smt. Padma Hengsu way back in the year 1954. On the other hand, it has been the specific contention that on account of non payment of rents continuously for a period of two years, lease has stood forfeited. Though a feeble plea is raised in this regard in the plaint namely, tenancy stood terminated, plaintiffs did not venture to proceed further in the matter. Trial Court has also rightly not examined the issue of forfeiture for the simple reason that it is a suit for bare injunction and as such it has not proceeded to delve upon the issue of forfeiture. It is because of this, trial Court as well as lower appellate Court have rightly observed that forfeiture of lease is alien to the present dispute. There cannot be any quarrel with regard to the said finding recorded by trial Court inasmuch as, in a suit for perpetual injunction against mulageni tenant, plaintiff is required to establish there was injury caused to the property and that right of plaintiff is threatened.

In the instant case, grievance of the plaintiffs as already noticed above, is that on account of non payment of rents, there is forfeiture of lease and thereby plaintiffs have a right of re-entry and during the period to which defendant continues to be in possession of the property as trespasser, defendant would not be entitled to either change the nature of the property or alter the nature of the property or cause damage to the said property. As rightly observed by the Courts below, except self serving testimony of the plaintiffs, there was no other independent evidence available to accept the said plea of the plaintiffs to be in the proximity of truth. As such, Courts below, on appreciation of evidence, have rightly come to the conclusion that alleged threat is not proved by the plaintiffs except self serving testimony. This Court, as observed hereinabove, cannot re-appreciate the said evidence and also the finding of fact recorded on such appreciation of evidence by the Courts below. Undisputedly, plaintiffs have reserved their right in the plaint itself to proceed against defendant under the provisions of Karnataka Rent Control Act. As to whether plaintiffs are entitled to rights flowing on such forfeiture or not is an issue which could not have been gone into by the Courts below and rightly, said issue has not been gone into and same is left open.

The grievance of Sri G. Balakrishna Shastry, learned Advocate appearing for appellants before this Court is, while lower appellate Court reversing the finding of the trial Court has proceeded further in answering issue No. 3 formulated by it namely, it has held that plaintiffs (muladars) except entitled to receive compensation do not have any right over suit properties by referring to the Karnataka Conferment of Ownership on Mulageni or Volamulageni Tenants Act, 2011 (Act No. 24/12). A copy of the said Act has been made available by learned Advocates appearing for the parties. Perusal of said enactment would indicate that under Section 3, every mulagenidar or volamulagenidar who is in possession and enjoyment of the holding shall be entitled to conferment of the holding, on his fulfilling conditions specified in the succeeding sections. When the Act is clear, specific and unambiguous, it is needless to state that observations made by lower appellate Court in paragraph 45 while adjudicating issue No. 3 is to be understood as that both parties namely, muladars and mulagenidars would be entitled to prosecute their claim if any under the provisions of the Act. Hence, this Court is of the considered view that except making observation with reference to finding recorded in paragraph 45 of the lower appellate Court judgment, no substantial question of law would arise for consideration in this appeal.

For the reasons aforestated, I proceed to pass the following:

"ORDER

(1) Appeal stands rejected subject to Appeal stands rejected subject observations made hereinabove.

(2) Judgment and decree passed by IV Addl. District Judge, Dakshina Kannada, Mangalore in R.A. No. 705/2004 (Old No. 151/1999) dated 22.02.2014 stands confirmed subject to observations made above."

(3) It is also made clear that if either of the parties possess any right under any other Act, they would be entitled to prosecute their claim. No opinion is expressed in that regard and all contentions are left open.

(4) No order as to costs."