Sri Shivaji Balaram Haibatti vs Sri Avinash Maruthi Pawar

5. The dispute involved in the appeal relates to a shop measuring 9 ft. 9 inch North and 5 ft. East West situated out of land bearing CTS 1590/A-4 in the City of Belgaum (as detailed in plaint) (hereinafter referred to as "suit shop").

6. One Vithal Dhopeshwarkar was the owner of the suit shop along with the land over which the suit shop is built and some adjoining land. He sold the land and the suit shop to the appellant vide registered sale deed dated 20.09.1997 (Annexure P-6). The respondent (defendant) was in possession of the suit shop even prior to its purchase by the appellant from Vithal Dhopeshwarkar. 2

7. On 08.06.1999, the appellant filed a civil suit being O.S. No.115/1999 against the respondent in the Court of Civil Judge, Sr Division, Belgaum claiming possession of the suit shop from the respondent. The suit was founded on the allegations, inter alia, that the appellant is the owner of the suit shop having purchased the same vide registered sale deed dated 20.09.1997 from Vithal Dhopeshwarkar. It was alleged that the respondent was in possession of the suit shop without any right, title and interest of any nature.

8. In other words, according to the appellant, the respondent, since inception, was in illegal possession of the suit shop. The appellant, on purchase of the suit shop, therefore, requested the respondent to vacate the suit shop but he failed to vacate and hence the appellant became entitled to claim possession of the suit shop from the respondent on the strength of his ownership over 3 the suit shop. A relief of mesne profits at the rate of Rs.2500/- per month was also claimed.

11. The respondent, felt aggrieved, filed first appeal before the Ist Additional District Judge, Belgaum being Regular Appeal No.58/2003. By judgment/decree dated 11.12.2006, the First Appellate Court dismissed the appeal and affirmed the judgment/decree of the Trial Court.

12. The respondent, felt aggrieved, filed Second Appeal in the High Court of Karnataka (Dharwad Bench) being S.A. No. 213/2007 under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"). The High Court, by impugned judgment, allowed the Second Appeal and while setting aside of the judgments and decrees of two Courts below dismissed the appellant's suit. 5 The High Court held that the respondent was in possession of the suit shop as tenant and, therefore, the remedy of the appellant lies in filing the suit under the Rent Laws and the Transfer of Property Act for claiming possession of the suit shop. It was held that the present suit is, therefore, not maintainable for passing a decree for possession against the respondent in respect of suit shop.

17. Section 100 of the Code deals with second appeals. Sub-section (4) says that where the High Court is satisfied that a substantial question of law is involved in the case, it shall formulate that question. Sub-section (5) says that the appeal shall be heard on the question “so formulated". It further provides that the respondent is allowed to raise an objection at the time of hearing of the appeal that the question which has been framed does not involve in the case or in other words, is not a 7 “substantial question of law" and, therefore, the appeal is liable to be dismissed as involving no substantial question of law within the meaning of Section 100 of the Code.

24. The High Court, however, framed one general question of law as to whether the findings of the two Courts below were contrary to the pleadings and evidence and especially to Ex-P-15 and held, by placing reliance on Ex.P-15, that the respondent was occupying the suit shop as tenant and, therefore, the remedy of the appellant was in filing a tenancy suit against the respondent and to claim his eviction from the suit shop under the State tenancy laws or/and Transfer of Property Act in such suit but not in the present suit which is based on the strength of his title. The High Court, with 10 this finding, accordingly allowed the appeal and dismissed the appellant's suit as being misconceived.

34. In the light of foregoing discussion, the appeal succeeds and is allowed. Impugned judgment of the High Court is set aside and as a consequence, the judgments of the First Appellate Court and Trial Court are restored.

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