1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 7th DAY OF AUGUST 2012 BEFORE THE HON'BLE MR.JUSTICE JAWAD RAHIM M.S.A. NO.10/2011 BETWEEN: SMT.LAXMAMMA, W/O NANJUNDGEGOWDA, AGED ABOUT 49 YEARS, OCC: HOUSE WIFE, R/OF DODDAKUNCHE VILLAGE, HALEKOTE HOBLI, HOLENARASIPURA TALUK, HASSAN DISTRICT - 577 101 APPELLANT (BY SRI S.V.PRAKASH, ADV.,) AND: SRI RANGAPPA, S/O KARIYAPPA, AGED ABOUT 52 YEARS, R/O DODDAKUNCHE VILLAGE, HALEKOTE HOBLI, HOLENARASIPURA TALUK, HASSAN DISTRICT - 577 101 RESPONDENT (BY SRI V.RAVI PRAKASH, ADV.,) THIS MSA FILED U/S XLIII RULE 1(u) OF CPC., AGAINST THE JUDGMENT AND AWARD DATED 28.09.2010 PASSED IN [CASE NUMBER] ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., HOLENARASIPURA, ALLOWING THE 2 APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 2.9.2006 PASSED IN [CASE NUMBER] ON THE FILE OF THE CIVIL JUDGE (JR.DN) HOLENARASIPURA, REMITTING THE MATTER TO TRIAL COURT FOR FRESH DISPOSAL. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT
Plaintiff is in appeal against the judgment in [CASE NUMBER] on the file of Civil Judge, (Senior Divn.), Holenarsipur, whereby the judgment and decree in [CASE NUMBER] has been set aside and the case is remanded to the trial court to permit the plaintiff to amend the plaint and also to frame additional issues and dispose it in accordance with law.
2. Learned counsel for the appellant, questioning the order of remand, refers to certain factual matrix which reveals:
a) Appellant-plaintiff sought eviction of the respondent from the premises in question on the ground he is a chronic defaulter in payment of rents and is holding over despite termination of tenancy by issuance of statutory notice under [SECTION] of the [ACT].
b) In support of such relief, appellant-plaintiff claimed to be the absolute owner having purchased the property in question by virtue of the deed of sale dated 5.10.1985 from the tenant. It was further averred, defendant after selling the property unto the plaintiff, had continued to be in occupation, initially on a monothly rent of Rs.150/- which he was paying regularly. However, he defaulted from 1.6.2001 for which reason his tenancy was terminated by legal notice dated 13.3.2006.
c) Defendant entered contest and resisted the decree.
However, in the written statement he categorically admitted he had executed a registered deed of sale on 5.10.1995 in favour of the plaintiff in respect of the schedule property; he denied he was a tenant under her from 10.10.1985. Regarding the claim of the plaintiff that he was tenant on a monthly rent of Rs.150/-, he described it as an incorrect statement. To resist eviction, he contended the boundaries of the property mentioned in the suit are incorrect and there is no cause of action for the plaintiff to file the suit. The alternate defence taken by him was, as he was facing financial crisis, he had borrowed Rs.3,000/- from the plaintiff and executed a sale deed on 4.10.1985 in good faith only as security for the loan borrowed. Consideration amount in the sale deed shown as Rs.8,000/- as the market value was incorrect. All that the he received was Rs.3,000/- and plaintiff had execurted an agreement of sale dated 5.10.1985 in his favour for re-conveyance. The agreement of sale dated 5.10.1985 compelled the plaintiff to re-convey the property to him after receiving consideration of Rs.3,000/-. He further contended, at no point of time, possession was given to the plaintiff. He referred to filing of [CASE NUMBER] seeking a decree for specific performance and declaration that the agreement of sale dated 5.10.1985 was binding on the plaintiff and he (defendant) was entitled for re-conveyance of the property.
d) Based on these material propositions, the learned trial judge framed the following issues:
'1. Whether plaintiff proves that defendant is tenant under her in the suit schedule house since 10.10.1985 as at the monthly rent of Rs.150/- as contendend?
2. Whether plaintiff proves that defendant kept the rent from 1.06.2001 in arrears?
3. Whether plaintiff is entitled to recover such arrears of rent for 53 months as claimed?
4. Whether plaintiff is entitled to recover possession of suit house from the defendant?
5. What decree or Order?'
e) In the enquiry that ensued, plaintiff tendered evidence as PW1 and produced 4 documents, whereas defendant tendered evidence as DW1 and relied on 3 documents.
f) Learned trial judge analyzing the evidence, opined plaintiff's evidence outweighs the defence of the defendant and decreed the suit directing him to hand over possession of the schedule premises within 3 months and to put the plaintiff in occupation. The request to decree the suit for arrears of rent was dismissed.
g) Plaintiff did not appeal dismissal of the suit regarding arrears of rent, but the defendant was in appeal in [CASE NUMBER] reiterating his stand. Learned appellate judge has, by the impugned judgment, allowed the appeal, setting aside the judgment of the trial court with a direction that the plaintiff be permitted to amend the plaint.
3. Sri [ENTITY] would point out that the defendant has failed to secure a decree in [CASE NUMBER] for reconveyance. His plea that there was an agreement on 5.10.1985 binding the plaintiff to transfer the property unto him for Rs.3,000/- was not accepted. Consequently, the right of the defendant had dissipated and it was no longer available to him. He would submit dismissal of the suit for specific performance affirms absolute right, title and interest of the plaintiff as, neither the sale deed dated 5.10.1985 was brought into question at any time later, not it was the issue in [CASE NUMBER]. He would submit plaintiff had not initiated any action due to pendency of [CASE NUMBER], it is only subsequently he filed ejectment suit wherein he established defendant was the tenant. He would submit the fact that the defendant was the predecessor-in-title and he had sold the property unto the plaintiff inthe manner known to law is no longer in dispute, particularly in view of the decision in [CASE NUMBER]. Therefore, the possession of the defendant was only as tenant.
4. Alternatively, learned counsel would submit, even if it is presumed plaintiff's evidence did not spell out defendant was a tenant under him, undoubtedly defendant was in permissive occupation after execution of the sale deed. Since the defendant had not put forward any other plea to protect his possession either as a trespasser or as a person having right legally enforceable, the trial court had no option but to decree the suit. In this regard, he would submit plaintiff had paid the requisite court fee for possession and was entitled to a decree. Lastly, he would submit the appellate court was required to re-appraise the evidence on record and take a final decision which the appellate court has failed to do. Instead, appellate court has created a new case by remanding the matter and compelling the plaintiff to amend the plaintiff, which the plaintiff was not willing to do.
5. In negation of these grounds, learned counsel for appellant would submit appellate judge has taken note of the recent position of law on the subject. Referring to the facts under consideration in the case of [PRECEDENT], he submits, the apex court in a similar fact situation, noticed the issue as to what was the nature of occupation of the defendant had decided by the trial court, and having not done so, it was necessary to remand the case. Learned counsel drew my attention to the operative portion of the judgment of the apex court wherein certain directions like the one in the instant case have been issued by the apex court.
6. I have given due consideration to the contentions of both sides.
7. The issue before me is, whether the order of remand is justified. As could be seen from the undisputed facts, respondent was the owner of the property in question and he sold it to the plaintiff by virtue of the sale deed dated 5.10.1985. Defendant has not disputed the said deed of sale but has set up an agreement of even date, i.e. 5.10.1985 under which plaintiff had agreed to re-convey the property unto him on payment of Rs.3,000/-. In other words, defendant did not link the transactionof sale with the so-called re-conveyance. He set up independent right under the agreement of sale dated 5.10.1985. Plaintiff's case had to stand or fall on the strength of it. He has failed to establish it, and suffered defeat in [CASE NUMBER], and such right of the defendant was lost.
8. Undoubtedly, the issue under consideration was, what is the nature of his right. As in the instant case plaintiff had sought his eviction on the ground defendant is a tenant under him and the latter had not taken the plea of adverse possession or that he was a trespasser, the facts and circumstances indicate he could only be a licencee, and if so, plaintiff would be entitled to a decree if he had sought ejectment or possession. The suit is one for ejectment based on the plea defendant was tenant. Even if vinculum juris of landlord and tenant is not established, it does not mean to say the occupation of the defendant was adverse to the plaintiff, or that he was protected under any other transaction. Consequently the nature of occupation was that of a licencee or a permissive occupation.
9. For seeking eviction of a person who is in permissive occupation, court fee payable would be under [SECTION] of the [ACT]. In the instant case, plaintiff had valued the suit under that provision and it was adequate. In this view, all that was required to be done by the appellate court was, to mould the relief to grant decree for possession if not ejectment. Instead, the court has gone oneo step further by remanding the case, that too, with a direction that the plaintiff shall amend the plaint with the leave of the trial court to seek eviction of the defendant on the ground that he is a trespasser. Such direction can hardly be sustained. By such direction, learned appellate judge has compelled the plaintiff to amend the plaint though he is not willing. He has not visualised what would be the consequence if the plaintiff does not amend. Does it mean that the plaintiff's suit will be dismissed.
10. It is pertinent to note appellate court thought it fit to issue such direction sue moto when the plaintiff had not requested for amendment of pleadings. Be that as it may, we are more concerned with the exercise of appellate power of the court spelled out in [SECTION], [ACT] Therefore, when a decree is appealeld against, the first and foremost jurisdiction of the appellate court is to examine the proposition in the pleadings, issues framed, evidence led and then take a final decision as required under [SECTION]. If the judgment under appeal is on a preliminary issue, rendering no finding on other issues, the appellate court may apply [SECTION] and remand the case with a direction to the trial court to give a finding on all issues and then dispose it on merit. If the decree appealed against is not on any preliminary issue but on other issues, the appellate court may apply Ruel 24. If the trial court has given a finding on fact, then [SECTION] would not apply. It requires the appellate court to take a final decision, which, in the present case, it has failed to do. Instead it has remanded the case with certain directions. It can hardly be sustained. This view finds support from the judgment of the apex court in the case of [PRECEDENT] wherein the Hon'ble Supreme Court relying on its earlier decision reported in the case of [PRECEDENT] in paragraph has observed thus:
'21. Mr.[ENTITY], however, would rely upon a decision of this court in [ENTITY] .v. Chandramaul (AIR 1966 SC 735). [ENTITY], C.J., therein was dealing with the rules of pleadings. It was opined that although the rules of pleadings should be adhered to, when parties go to the trial knowing fully well the points they are required to meet, the court may not insist on the strict application thereof, stating:
13. When Mr.[ENTITY] was pressing his point about the prejudice to the defendant and the impropriety of the course adopted by the High Court in confirming the decree for ejectment on the ground of licence, we asked him whether he could suggest to us any other possible plea which the defendant could have taken if a licence was expressly pleaded by the plaintiff in the alternative.
(emphasis supplied) The only answer which Mr.[ENTITY] made was that in the absence of definite instructions, it would not be possible for him to suggest any such plea. In our opinion, having regard to the pleas taken by the defendant in his written statement in clear and unambiguous language, only two issues could arise between the parties: is the defendant the tenant of the plaintiff, or is he holding the property as the licensee subject to the terms specified by the written statement? In effect, the written statement pleaded licence subject to the condition that the licensee was to remain in possession until the amount spent by him was returned by the plaintiff. This latter plea has been rejected, while the admission about the permissive character of the defendant's possession remains. That is how the High Court has looked at the matter and we are unable to see any error of law in the approach adopted by the High Court in dealing with it.
14. In support of its conclusion that in a case like the present a decree for ejectment can be passed in favour of the plaintiff, though the specific case of tenancy set up by him is not proved, the High Court has relied upon two of its earliler Full Bench decisions. In Abdul Ghani v.
Babni the Allahabad High Court took the view that in a case where the plaintiff asks for the ejectment of the defendant on the ground that the defendant is a tenant of the premises, a decree for ejectment can be passed even though tenancy is not proved, provided it is established that the possession of the defendant is that of a licensee. It is true that in that case, before giving effect to the finding that the defendant was a licensee, the High Court remanded the case, because it appeared to the High Court that part of the case had not been clearly decided. But once the finding was returned that the defendant was in possession as a licensee, the High Court did not feel any difficulty in confirming the decree for ejectment, even though the plaintiff had originally claimed ejectment on the ground of tenancy and not specifically on the ground of licence. To the same effect is the decision of the Allahabad High Court in [PRECEDENT]."
22. The decision in [ENTITY] case itself is an authority for the proposition that it was necessary to bring on record some evidence that the defendant was a licensee and he could not have raised any other alternative plea. It was followed by a learned Single Judge of the Allahabad High Court in Shri [ENTITY] v. Kasturi Devi stating:
(AIR P.72, para 15) "15. Lastly, it was argued for the appellants that there is no relationship of landlord and tenant as between Smt [ENTITY] on the one hand and Shri [ENTITY] or [ENTITY], on the other. The trial court was of the view that no such relationship has been made out. This finding was, however, reversed by the lower appellate court and not without cogent basis. Shri [ENTITY] admits that one [ENTITY] was the tenant in this part of the house who vacated. Shri [ENTITY] thereafter came in the said portion of the house. In cross-examination, he admitted also that it was agreed between him and Smt.[ENTITY] what would be treated as the rent for the said portion. Further the case of the appellants is that on 20.1.1970.
Shri [ENTITY] got this portion allotted in his name. All these are pointers in the direction that there was relationship of landlord and tenant and not the Shri [ENTITY] has been residing in the portion of the house as licensee of Smt [ENTITY]. This apart the suit for eviction brought by SMt [ENTITY] against them does not fial even if it is assumed that there was no relationship of landlord or of tenant or that Shri [ENTITY] was in the position of a mere licensee. The licence has been determined by registered notice given by Smt [ENTITY] already. IN the plaint, Smt.[ENTITY] referred expressly to her title to the house by virtue of the will executed in her favour by the husband. The law is settled that even if Shri [ENTITY] was the licensee, SMt [ENTITY] can, on the basis o f title claim eviction even though she has set up the case that there was the relationship of the landlord and tenant and assumed that the same is not established, vide [ENTITY] v. Chandramaul, Abdul Ghani v. Babni, Balmakund v.
Dalu."
11. In the result, the appeal succeeds. The impugned judgment is set aside. The appeal is remanded to the appellate court to dispose of the case on merit in accordance with law keeping in mind the observations made in the course of this order.
JUDGE vgh*