E. Chandrashekhar vs Kannappa Mudaliyar and Others

S.N. Satyanarayana, J.—The plaintiff in O.S. No. 159/2001, on the file of Prl. Civil Judge (Jr.Dn.), Ballari, has come up in this second appeal impugning the divergent finding rendered by the Court of Prl. Civil Judge (Sr.Dn.), Ballari, wherein the regular appeal in R.A. No. 10/2007, filed by defendants in the original suit is allowed and the judgment and decree passed in favour of the plaintiff is set aside.

The brief facts leading to this second appeal are that the appellant herein and the plaintiff in the original suit was tenant of shop bearing No. 59/2 situated in Ganesh Temple Street, Ward No. 5, Brucepet, Ballari, measuring east-west 10'' and north-south 30''. Admittedly the said property was belonging to one Kannappa Mudaliar, who let out the same in favour of plaintiff''s father Sreeramulu, in the year 1965 on monthly rental basis. The plaintiff''s father Sreeramulu died in the year 1983. Thereafter the plaintiff in the original suit continued to do the business of oil, in the said shop up to 2000. In the year 2000, it is seen that the possession of the suit schedule property was taken by defendants 1 and 2 viz., B. Kannappa Mudaliar and his son V. Ravikumar. Thereafter the suit in O.S. No. 159/2001 is filed by the plaintiff for the relief of permanent injunction restraining the defendants from giving vacant possession of the building to any third party and also for mandatory injunction i.e., direction to defendants to put the plaintiff in possession of suit schedule property and for other reliefs.

In the said suit, after service of notice defendants entered appearance and filed written statement on 27.8.2001 admitting the relationship of landlord and tenant between the defendants and the plaintiff and took up the defence that the plaintiff has inducted one Karibasayya as tenant in the suit property and at the instance of plaintiff a lease deed was also executed in his favour and that the said Karibasayya is presently in possession and occupation of the suit property and the suit is not maintainable without the said person being impleaded as necessary party in the said proceedings.

It is seen that during the pendency of the proceedings the said person Karibasayya who was inducted into the tenanted property of plaintiff, vacated the premises and handed over possession to the plaintiff by receiving certain amount. In this background, it is seen that subsequently the plaintiff has also amended the plaint by modifying the earlier prayer for mandatory injunction and instead sought for the relief of restoration of possession of the suit schedule property from the defendants. However he did not take any steps to implead Karibasayya. Thereafter the matter went into trial.

The plaintiff adduced evidence in support of his case. On behalf of the defendants, in addition to the evidence of 2nd defendant Ravikumar as D.W. 1, Karibasayya was examined as D.W. 2 to demonstrate that Karibasayya was in possession of the suit property as tenant and also to demonstrate that possession was voluntarily delivered to him by the plaintiff. The said evidence was not believed by the trial Court and proceeded to decree the suit of the plaintiff. Thereafter the defendants preferred an appeal in R.A. No. 10/2007, on the file of Civil Judge (Sr.Dn.), Ballari, wherein the lower appellate Court on re-appreciation of the pleadings and evidence noticed that in the evidence of P.W. 1 he admitted that he lost the documents with reference to suit transaction while shifting the material from the suit schedule property to his residence.

This piece of evidence being crucial to litigation as it served as an admission to the effect that the plaintiff voluntarily vacated the possession of the property, as against his pleading that he was thrown out of the property. The material kept in the suit schedule property was thrown out to the street were all proved to be wrong in the light of the admission that he shifted the materials available in the suit shop to his residence and it is further seen that the further allegation that the property was locked and he was prevented from removing the material from the shop was also proved wrong. Therefore the lower appellate Court on re-appreciation of the pleadings and evidence felt that there is substance in the defence taken by the defendants that the plaintiff himself has vacated the suit property by inducting Karibasayya as a tenant in his place and consequently dismissed the suit for restoration. Being aggrieved by the divergent finding rendered by the lower appellate Court, the plaintiff has preferred this second appeal.

Heard the learned counsel for the appellant and the contesting respondent. Perused the judgment of both the Courts below and on going through the evidence of P.W. 1, it is clearly seen that same is in contradiction with the pleadings, wherein it is stated that the defendants 1 and 2 had forcibly put lock on the shop premises preventing him doing the business. Whereas, in the evidence there is clear admission that he has vacated the shop premises by removing the materials available in the shop premises. In the bargain, he also placed on record that certain documents with reference to tenancy rights are misplaced, thereby giving a go by to the theory of forcibly keeping him out of the shop premises as stated in the pleadings and evidence which is erroneous.

It is further seen that the evidence of Karibasayya, who incidentally continued to do the business in place of plaintiff clearly admit that he was inducted into the property by plaintiff himself as his sub tenant and it is further seen that subsequently there is execution of lease deed in favour of Karibasayya independently and that he continued in possession of the suit property as a tenant independently under defendants 1 and 2 and not as sub lessee of plaintiff. With all this it is clearly seen that the theory of forcibly dispossessing the plaintiff from the suit property is not established by him. Therefore the lower appellate Court disbelieving the version of plaintiff both in pleading and as well as in evidence, rightly reversed the finding of the trial Court in considering his prayer for restoration of possession and consequently dismissed the suit of the plaintiff.

In this second appeal, on going through the finding of the lower appellate Court, it is clearly seen that no grounds are available to admit this second appeal to consider the non existing legal right of the plaintiff to the suit property. While arguing for admission, the learned counsel for the appellant tried to rely upon the judgment rendered by the Apex Court in the matter of S.R. Ejaz Vs. The Tamil Nadu Handloom Weavers Co-operative Society Ltd., . On going through the aforesaid judgment it is clearly seen that the facts referred to in the said case are distinguishable to the facts of the case on hand.

In the aforesaid reported case the plaintiff was forcibly thrown out of the property and the possession was taken by the landlords in a high handed manner. Whereas, in the instant case the plaintiff has voluntarily surrendered possession of the suit property in favour of third party Karibasayya and thereafter he has walked away from the suit property and subsequently he has come up with a theory that the landlord has prevented him from entering into the suit property by putting a lock, which was proved to be otherwise in the evidence which is recorded on his behalf.

In that view of the matter, the said judgment would not enure to the benefit of the appellant herein. Accordingly this second appeal filed by the plaintiff in O.S. No. 159/2001 is hereby dismissed. While doing so, the judgment and decree dated 18.2.2008, passed in R.A. No. 10/2007, on the file of Prl. Civil Judge (Sr.Dn.), Ballari, is hereby confirmed.