1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 14TH DAY OF FEBRUARY, 2013 BEFORE THE HON'BLE MR.JUSTICE B.S.PATIL RSA No.2186 OF 2012 (RES) BETWEEN: 1 SMT.SUMANA S.PAI, W/O SURESH PAI, AGED ABOUT 41 YEARS, 2 SRI SURESH V.PAI, S/O LATE VISHWANATH PAI, AGED ABOUT 47 YEARS, BOTH ARE RESIDING AT RADHA NIVAS, HOSMAR, BYE PASS ROAD, BANTWAL POST, BANTWAL TALUK, D.K. DISTRICT - 574211. APPELLANTS (BY SRI A.NAGARAJAPPA AND ASSTS., ADVS. YADAVA.K, J.N.NAVEEN, ADVS.) AND 1 SWAPNA HARISH, W/O LATE HARISH KUMAR, AGED ABOUT 39 YEARS, 2 HAMSARAJ SHENOY, S/O LATE HARISH KUMAR, AGED ABOUT 19 YEARS, BOTH ARE RESIDING AT KASHI MUTT LANE, 2 BANTWAL KASBA VILLAGE, BANTWAL POST, BANTWAL TALUK, D.K. DISTRICT - 574211. RESPONDENTS (BY SRI M.SUDHAKAR PAI, ADV.) THIS RSA IS FILED UNDER SECTION 100 R/W ORDER 42 OF [ACT] AGAINST THE JUDGMENT AND DECREE DATED 6.9.2012 PASSED IN [CASE NUMBER] ON THE FILE OF THE SR.CIVIL. JUDGE & JMFC, BANTWAL, D.K.DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 3.12.2008 PASSED IN [CASE NUMBER] ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN.) BANTWAL. THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT
In this regular second appeal appellants are calling in question the judgment and decree passed by the learned Senior Civil Judge & JMFC, Bantwal, thereby dismissing [CASE NUMBER] filed by them confirming the judgment and decree dated 3.12.2008 passed in [CASE NUMBER] directing the defendants to put the plaintiffs in possession of the suit property within a period of three months from the date of the judgment. Appellants 1 and 2 were defendants 1 and 2 in the trial court.
2. The respondents herein filed the suit seeking ejectment of the defendants from the suit schedule premises contending that tenancy of the defendants in the premises had been lawfully terminated and that defendants had default in paying the rents due.
3. The defendants admitted the ownership of the plaintiffs but contended that they were in possession not as tenants but under an agreement of sale dated 31.1.2000 executed by late [ENTITY], husband of the 1st plaintiff and father of the 2nd plaintiff. They further contended that the entire sale consideration was paid to late [ENTITY] in a sum of Rs.1,15,001/- and [ENTITY] was put in possession on the date of the agreement itself.
4. The trial court framed necessary issues with regard to the relationship of land lord and tenant between the parties and also with regard to the defence taken by the defendants regarding proof of the agreement for sale executed by [ENTITY]. The trial Court negatived the issue regarding the relationship of land lord and tenant between the plaintiffs and the defendants. It also held that the defendants were unsuccessful in establishing the existence of any valid agreement for sale executed by [ENTITY] in favour of defendant No.1 [ENTITY]. It also made an observation that in view of the separate suit filed in [SECTION] by the appellants/Defendant No.2 seeking specific performance of the agreement for sale, it was unnecessary to dwell into the question whether there was an agreement for sale duly executed between the parties. However, the trial court decreed the suit directing delivery of possession to the plaintiffs on the admitted plea that plaintiffs were the owners of the property and due to the findings that the defendants had failed to establish their right to continue in possession.
5. This judgment and decree was challenged in [CASE NUMBER] by the defendants. A cross objection was filed by the plaintiffs challenging the findings recorded with regard to issue Nos.1 and 2. The Lower Appellate Court has dismissed the RA and has allowed the cross- objection. It has returned specific finding holding that relationship of land lord and tenant stood established and the defendants were liable to pay arrears of rent and mense profits. The appellate Court further found that defendants failed to prove the agreement for sale entered into by late [ENTITY] and [ENTITY] 1st defendant. Aggrieved by these findings, the present second appeal is filed.
6. I have heard the learned counsel for the parties. They have taken me through the judgment and decree passed and other materials on record. Admittedly another suit is filed by the present appellants in [SECTION] seeking specific performance of the agreement of sale dated 31.1.2000 stated to have been executed by late [ENTITY], husband of the 1st plaintiff in favour of the 1st defendant [ENTITY],. In the said suit, the agreement was sought to be marked in evidence. On an objection raised regarding the admissibility of the document for want of stamp duty the document was not admitted in evidence. Therefore, the suit filed in [SECTION] has been dismissed on 11.2.2011. Aggrieved by this judgment and decree an appeal has been preferred by the 1st defendant [ENTITY] the alleged agreement holder. The said appeal is pending before the learned District Judge, Mangalore in [SECTION].
7. The contention of the appellants is that in view of the pendency of the said appeal, this appeal has to be admitted and it must await the judgment and decree to be passed by the Appellate Court in [CASE NUMBER]. It is his submission that under [SECTION] of the [ACT], the appellants are entitled to protect their possession even if the suit for specific performance of the agreement is held to be barred by law of limitation. He has placed reliance on the judgment of the Apex Court in the case of [PRECEDENT] and also on the full bench judgment of this Court in the case of [PRECEDENT]. It is his submission that in case, the appellants succeed in establishing due execution of the agreement for sale by deceased [ENTITY] in favour of the 1st defendant, then even if the decree for specific performance is to be denied on account of bar of limitation still the appellants would be entitled to resist the suit for possession.
8. Learned counsel for the respondents on the other hand strongly refutes this contention and urges that the appellants have failed to establish their defence based on the agreement of sale dated 31.1.2000, in as much as both the Courts have negatived this defence and the conduct of the appellants in not even paying the deficit stamp duty and keeping the litigation alive in [SECTION] only showed that they are only interested in denying the lawful possession of the plaintiffs. He has brought to the notice of the court various proceedings that have taken place in the past including the order of this Court in [CASE NUMBER] disposed of on 13.11.2008, wherein liberty was reserved to the defendants to seek for clubbing both the suits (the present suit and the suit filed by the defendants for specific performance), despite which, the defendants did not choose to have the two suits clubbed and heard and disposed of together. He, therefore contends that the conduct of the defendants disentitles them for claiming any relief in this proceeding. He has placed reliance on the judgment of the Apex Court in the case of [PRECEDENT].
9. Having heard the learned counsel for both parties and on careful perusal of the judgment under challenge, I find that the defendants have admitted the ownership of late [ENTITY] and the plaintiffs over the suit schedule property though they have denied their status as tenants under [ENTITY]. They have not been, so far, able to establish that they have purchased the property under the agreement of sale dated 31.1.2000. No doubt, the courts below have not recorded any specific or serious finding on the issue regarding the existence of the agreement for sale, in as much as, while the trial court has specifically observed that in view of the pendency of [SECTION] filed by the defendants seeking specific performance of the agreement for sale, it was not necessary for it to go into the said question, the Lower Appellate Court although undertakes an exercise in this direction, ignores the pendency of the suit filed for specific performance and proceeds to record a finding that the agreement for sale was not proved. The Lower Appellate Court ought to have permitted the defendants herein to raise that issue in the suit that was already instituted.
10. Learned counsel for the appellant is right in submitting that when the suit seeking specific performance of the agreement was pending it was not appropriate for the Lower Appellate Court to record a finding one way or the other on the issue regarding proof of agreement of sale. However, in so far as the decree passed directing to handover possession of the property in favour of the plaintiffs both courts have concurrently found that as the plaintiff was the owner of the property and as long as the plaintiffs failed to establish the defence based on the agreement for sale dated 31.1.2000 in the suit filed in [SECTION], the plaintiffs could not be denied the possession of the property indefinitely, unmindful of the fact that the defendants failed to pay the deficit stamp duty and get the document marked in [SECTION] for which reason the suit itself was dismissed. Though [SECTION] is pending before the Appellate Court, the appellants have to go a long way in the said matter to establish their claim of the execution of the agreement. If and when the appellants succeed in satisfying the appellate court in [SECTION] that there was due execution of the agreement for sale wherein [ENTITY] was put in possession of the property by late [ENTITY], then appropriate relief can be sought including a direction to hand over possession of the property back to the appellants/defendants. In fact, during course of arguments the counsel for the respondents/plaintiffs submits that in the event of the appellants succeeding in [SECTION] in establishing execution of the agreement of sale and that the 1st defendant [ENTITY] was put in possession by late [ENTITY], they would hand over possession back to the appellants. This submission is made having due regard to the fact that the question regarding execution of the agreement for sale has to be ultimately decided in [SECTION] and not in this particular suit.
11. In the light of the submission made by the learned counsel for the plaintiffs/respondents and in view of the concurrent findings recorded by both the courts below, I find that no interference is called for in this matter in exercise of the jurisdiction under 100 [ACT]. Hence, this appeal is dismissed. However, the undertaking given by the plaintiffs through their learned advocate as herein above is placed on record. The said undertaking shall enure to the benefits of the appellants/defendants in case they succeed in [SECTION]. At this stage, it is submitted by the counsel for the appellant that execution proceedings are initiated pursuant to the judgment and decree passed by the courts below wherein the appellants are facing immediate threat of dispossession from the residential premises. Counsel therefore prays for grant of some time. I find it just and reasonable to grant three months time to the appellants to hand over vacant possession of the suit schedule premises to the respondents. However, grant of time is subject to the appellants filing an affidavit before this Court within three weeks from today giving an undertaking that they will vacate and hand over the possession of the premises on or before 14.5.2013.
12. It is made clear that the findings recorded by the courts below on the issue regarding the execution of the agreement for sale shall not come in the way of disposal of [SECTION] on its merits in accordance with law.
JUDGE KLY/