Yallappa and Others vs Gangappa and Others

B. Veerappa, J.—This is a plaintiffs'' regular second appeal against the judgment and decree dated 17.08.2011 made in R.A. No. 72/2007 on the file of the Fast Track, Jamakhandi, confirming the judgment and decree dated 13.09.2007 made in O.S. No. 78/2000 on the file of the Civil Judge (Jr. Dn.), Banahatti, dismissing the suit of the plaintiffs for permanent injunction and for possession.

The plaintiff No. 1 is son of deceased plaintiff No. 2 initially filed a suit against defendants for the relief of perpetual injunction and during the pendency of the suit, the plaintiffs have filed I.A. No. III under Order 6 Rule 17 of the Code of Civil Procedure and have got amended the pleadings and converted the suit for the relief of possession and mesne profit and for consequential relief of injunction and contended that the suit schedule properties belongs to Yamanappa S/o. Hanamanth Madar of Banahatti, who died on 23.02.1982 and after his demise the names of defendant Nos. 1 and 2 came to be mutated in City Survey records as his heirs. During the lifetime of Yamanappa Madar, he had leased out the suit premises to plaintiff No. 1, who was running manufacturing of agricultural implements in the suit premises and plaintiff No. 1 agreed to run propriety concern in the suit premises. The deceased Yamanapp Mada, and plaintiff No. 1, entered into registered lease agreement dated 13.10.1980 for a period of 20 years and rent of Rs. 30/- per calendar month was agreed between the lessor and lessee, wherein the plaintiff No. 1 under the registered lease agreement started working in the suit premises in the name and style of M/s. Industries Steel Works, propriety concern and plaintiff No. 1 agreed to the terms and conditions of lease and obtained premises on lease for a period of 20 years.

It is the further case of the plaintiffs that they have installed heavy machineries and also obtained electrical connection from the KEB authorities and also obtained necessary permission from the director of small-scale industry. The plaintiffs were running their business in the suit premises, under lease agreement dated 13.10.1980 which expires on 13.10.2000. It is the further case of the plaintiff that the defendants high handedly and illegally dispossessed them from the suit premises during the last week of December 2000 by illegal means through the aid of goondas and also destroyed the furniture''s, fixtures and other machineries installed in the suit premises and the defendants have dispossessed them during subsistence of lease period, wherein the defendants have filed the suit.

The defendants filed written statement denied the entire plaint allegations in toto and also denied the description and admitted that about the unregistered lease dated 13.10.1980 executed by deceased Yamanappa Madar in favour of plaintiff No. 1. It is contended that plaintiff No. 1 is not working in the suit shed leased out, whereas plaintiff No. 1 was working in the suit premises, plaintiff No. 2 was working in the suit premises, plaintiff No. 2 had acquired a plot near Ganapati Temple, Banahatti in Forest Sy. No. 14. Plaintiff No. 2 had surrendered possession of the suit premises in favour of defendants without any obstruction after 15.08.2000 in the presence of elders and as such the plaintiffs have abandoned their tenancy rights in respect of suit premises. Hence defendants have denied the allegation of illegal dispossession of the plaintiffs from the suit premises. It is also contended that plaintiffs due to arrears of rent and electricity charges accumulated, the plaintiffs have not paid rent and electricity charges regularly and on insisting to pay rent and electricity charges, the plaintiffs have voluntarily surrendered the possession after 15.08.2000 and thereafter, the defendants have constructed the building by some new construction as defendants have obtained some grant released by the Government under Ambedkar Housing Scheme and as such, the defendants denied the allegations of plaintiffs claim of tenants holding over in respect of suit premises and also denied their possession as on the date of suit. On the contrary, defendants contended that after construction of the suit premises, they had leased to one Davalsab Maladar who was running a flour mill and also he has installed chilli powder machine and hence defendants have contended that this is a suit filed by the plaintiffs just to harass them and no cause of action has accrued to the plaintiffs to file this suit. Therefore, sought for dismissal of the suit. Defendants also filed written statement on 17.09.2002 and denied the amended pleadings of the plaintiffs in toto.

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

"1) Whether the plaintiff proves that they were in possession and enjoyment of the suit property as on the date of suit?

2) Whether the plaintiffs prove that they have been illegally dispossessed from the suit property during the pendency of the suit?

3) Whether the defendants proves that the plaintiffs have vacated and handed over the possession of the suit property as claimed in para-5 of written statement?

4) Whether the court fee paid is proper and correct?

5) Whether the suit is barred by limitation?

6) Whether the plaintiffs are entitled for the relief claimed in the suit?

7) What decree or order?"

In order to establish the case, plaintiff No. 1 examined as P.W. 1 and other witness as P.W. 2 and marked the documents Exs. P-1 to P-7. The defendants examined defendant No. 1 as D.W. 1 and also examined other witnesses as D.Ws. 2 & 3 and marked Exs. D-1 to D-19.

During the pendency of the proceedings, the defendants filed application to appoint Court Commissioner. The same was allowed and after considering the entire material on record, the Trial Court dismissed the suit. Against the said judgment and decree, the appellants - plaintiffs filed R.A. No. 72/2007 before the Fast Track Court, Jamakhandi. After hearing both the parties, by the impugned judgment and decree dated 17.08.2011 dismissed the appeal. Against the said concurrent finding of fact, the present appeal is filed.

I have heard the learned counsel for the parties to the lis.

Shri S.M. Kalwad, learned counsel for the appellants has contended that the impugned judgment and decree of the Courts below are otherwise erroneous and contrary to law. The Courts below have discarded the evidence of P.Ws. 1 and 2 who stated on oath that they have dispossessed from suit property and the Courts below have erred in holding that the plaintiffs have not established their illegal dispossession of the suit property. Both the impugned orders passed by the Courts below totally contrary to the material on record - Ex. P-1 the lease deed. Therefore, he sought to set aside the impugned judgment and decree of the Courts below.

Per contra, Shri R.M. Javed, learned counsel for the respondents sought to justify the impugned judgment and decree of the Courts below.

I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record.

The main grievance of the appellants - plaintiffs in the present case that he had entered into a registered lease agreement dated 30.10.1980 between the deceased Yallappa Madar and father of defendant No. 1 and wife of defendant No. 2 for a period of twenty years and he was running M/s. Industries Steel Works and he was illegally dispossessed even during the subsistence of the lease period.

It is the case of the defendants that the plaintiff No. 1 was not working in the premises, but plaintiff No. 2 was running industries and subsequently plaintiff No. 2 acquired a plot near Ganapathi Temple, Banahatti in forest Sy. No. 14. Therefore, plaintiff No. 2 has voluntarily surrendered suit premises in favour of defendants without any obstruction in the presence of elders. As such, plaintiffs have not obtained their tenancy rights in respect of suit premises. On the basis of the evidence of P.Ws. 1 and 2 and Exs. P-1 to P-7 and the entire material evidence of D.Ws. 1 to 3 and Exs. D-1 to D-19, the Trial Court recorded a finding that the plaintiffs failed to prove that they were in possession and enjoyment of suit property as on the date of the suit and the defendants proved that the plaintiffs vacated and handed over the possession of the suit property claimed in para 5 of the written statement and ultimately held that the plaintiffs are not entitled for the decree.

On re-appreciating the entire material on record, the lower Appellate Court has recorded a specific finding that the appellants have not established their illegal dispossession from the suit premises by the defendants during the last week of December 2000, P.W. 1 admitted that the defendants have constructed the building by obtaining grant in the month of October 2000 under Ambedkar Scheme and defendants were released grant of Rs. 20,000/- by the Government towards construction of suit premises. The Court Commissioner, Advocate HRP has visited the sit premises on 12.09.2001 and reported the matter before the Trial Court by submitting report, wherein as per Court Commissioner report that there is flour mill installed by one S.D. Maladar and also chilli powder machine was installed in the suit premises as on the date of the suit and the appellants have produced the extract of CTS No. 6162 by producing xerox copy issued on 04.10.1999 and it is standing in the name of the deceased Yamanappa S/o. Hanamant Harihan. Admittedly the property was ancestral property, wherein all the legal heirs of deceased Yamanappa Hanhan were necessary parties to O.S. No. 78/2000, but the appellants have added only defendant Nos. 1 and 2 as their name appearing in CTS extract to property No. 6162 of Banahatti, wherein the deceased Yamanappa Harijan had left behind him his heirs i.e., defendant Nos. 1 and 2, Sattewwa W/o. Durgappa Hairjan, Manohar and Mahadev sons of Durgappa Harihjan @ Madar as his legal heirs. The appellants had not impleaded the other three LRs. of deceased Yamanappa Harijan in O.S. No. 78/2000 who were also proper and necessary parties. On that ground also the suit of the plaintiffs was not maintainable.

In view of the aforesaid reasons, plaintiffs failed to establish their case as on the date of the suit. According to the plaintiffs the lease was made on 13.10.1980 and the same was expired on 13.10.2000 and admittedly the suit filed by the plaintiffs on 21.10.2000 after expiry of lease period and he has not impleaded all the LRs. of deceased Yamanappa Hanjan i.e., admitted fact and it is also admitted fact by P.W. 1 that defendants have constructed a building in the suit schedule property by obtaining the grant in the month of October 2000 under Ambedkar Scheme and after obtaining grant of Rs. 20,000/- from the Government towards construction of the building and the report of the Court Commissioner also clearly discloses that there is flour mill installed by one S.D. Maladar and also chilli powder machine installed in the suit premises and therefore, appellants are not in possession of the suit premises on the date of the suit and admittedly the plaintiffs have obtained site in Sy. No. 14 in forest area layout near Ganapathi Temple constructed the building and started their business in the said premises. Therefore, the impugned judgment and decree of the Courts below is based on the cogent legal evidence on record. The appellants have not made out any ground to interfere with the finding of fact recorded by both the Courts below in the regular second appeal exercising the power under Section 100 of the Code of Civil Procedure. No substantial question of law is involved in the present appeal. Accordingly, regular second appeal is dismissed.