Eviction case – in the absence of dispute about legal status of petitioner – court should not misdirect itself for stray entire in one of the record with out considering the records and evidence – continued by sons of original owner who died pending case against the son of Tenant – Trial court decreed the case – High court dismissed as misdirected holding that the appellants here in are not the sons of Original owner basing of Ration card in which the father name of appellants was showned as Muneshwar Rao – Apex court held that Muneshwar Rao and Narayanappa are one the same as per Reg. Will Deed left by Narayanappa and further it is not case of the respondent that the petitioners are not the sons of Narayanappa – mere entry in Ration card can not over weigh the evidence – The car registration certificate attached present with affidavit when disputed can not be considered – Apex court set aside the High court judgement and restored the Trail court order =
We carefully considered the rival contentions.
Exh.P1 is the
original lease deed dated 29.5.1967 and as per the recitals therein
the petition property was let out to late Ramaiah, father of
respondent no.1 herein, on a monthly rent of Rs.35/- by the owner
Narayanappa.
The jural relationship of landlord and tenant between
late Narayanappa and late Ramaiah is thus established and it is
admitted by respondent no.1 herein as held by Courts below.
The Trial
Court found that the appellants herein/petitioners established that
they require petition premises for their own use and occupation and
ordered delivery of vacant possession to them besides the direction to
pay the rental arrears.
Considering the contention of respondent no.1
herein that the appellants herein are not the legal heirs of original
lessor Narayanappa,
the High Court directed the appellants herein to
have their rights adjudicated before the competent Civil Court and
thereafter to proceed with the Eviction Petition.
8. The respondent no.1 herein in support of his plea produced two
documents, namely, Ration card and copy of Registration certificate of
Car bearing no.KA-05-EX-2037.
This Registration certificate, which is
now annexed with the counter affidavit, was not part of record before
the Courts below and cannot be taken into consideration more
particularly when it is being disputed.
The Trial Court while dealing
with the entries in the Ration card, took into consideration the
registered Will executed by late K. Narayanappa,
wherein, it is
recited that testator is K. Narayanappa @ Muneshwar Rao and rendered a
finding that Narayanappa and Muneshwar Rao are one and the same
person.
It is also relevant to point out that the Trial Court after
conducting inquiry, ordered the impleadment of third appellant
Sundamma as legal representative of deceased Narayanappa in the
Eviction Petition and the said order has become final.
In any event,
the contention of the respondent no.1 herein that appellants 1 and 2
herein are not the sons of late Narayanappa is liable to be rejected
for the reason that all the three of them jointly filed the Eviction
Petition against respondent no.1 herein and in the petition,
appellants 1 and 2 are described as sons of late Narayanappa.
In
other words Narayanappa declared appellants 1 and 2 herein as his sons
while seeking eviction of respondent no.1 herein.
It is also
pertinent to point out that respondent no.1 herein, in his counter
filed in the Eviction Petition when Narayanappa was alive, did not
raise any objection that appellants 1 and 2 herein, are not the sons
of Narayanappa and on the other hand his only contention was that he
has prescribed title to the petition premises by adverse possession.
The High Court misdirected itself in relegating the appellants to
Civil Court as rightly contended by the learned counsel for the
appellants and the order is unsustainable.
9. The appeal is allowed and the impugned order of the High Court
is set aside and the order of the Trial Court is restored. No order
as to costs.
2014 (May.Part) http://judis.nic.in/supremecourt/filename=41539
T.S. THAKUR, C. NAGAPPAN
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5569 OF 2014
[Arising out of Special Leave Petition (Civil) No.26741 of 2011]
K. Narayanappa (D) By Lrs. .. Appellant(s)
-vs-
R. Prakash .. Respondent(s)
J U D G M E N T
C. NAGAPPAN, J.
1. Leave granted.
2. This appeal is directed against the order dated 9.2.2011 passed
by the High Court of Karnataka at Bangalore in H.R.R.P. No.246 of
2010.
3. Briefly the facts are as follows : Narayanappa while alive along
with his two sons namely the appellants 1 and 2 herein filed petition
in HRC No.32 of 2006 under Section 27(2)(a)(c)(o)(p)(r) and Section
31(1)(c) of the Karnataka Rent Act seeking eviction of the first
respondent herein on the premise that Narayanappa was the absolute
owner of the premises bearing no.15, new no.20 situated at Hoovadigara
Galli, Chikpet, Bangalore measuring 25 x 25 ft. with dilapidated
structure and he entered into a lease deed dated 29.5.1967 permitting
Ramaiah, the late father of respondent no.1 herein, to demolish the
old structure and put up new structure and put him in possession for
15 years with monthly rent of Rs.35/- and with the option to renew the
lease for further period on agreed terms. Ramaiah demolished the
structure and built a new building and let it out to several persons
and was collecting the rents. It is further averred in the Eviction
Petition that Ramaiah failed to surrender possession after fifteen
years even after demand and failed to pay rent also and he died in the
year 1986 and Narayanappa called upon his widow and children to vacate
and they did not do so and the respondent no.1 herein admitted the
arrears of rent and issued cheque for Rs.525/- towards arrear upto
2001 and it was accounted for. On calculation it was found that a sum
of Rs. 3,500/- was due as arrears of rent and Narayanappa issued legal
notice dated 5.12.2005 to the respondent no.1 herein and others and
they failed to vacate and in their reply denied the right of the
appellants to file eviction proceedings which led to the filing of the
Eviction Petition by the appellants against the respondent no.1 herein
and others. Respondent no.1 herein, in his counter filed therein,
admitted the lease agreement dated 29.5.1967 entered into between
Narayanappa and his father Ramaiah and the putting up of new structure
by his father and renting it out to others. However, it was further
averred in the counter that after the death of Ramaiah, respondent
no.1 herein along with respondent no.2 in the main petition, were in
continuous possession of the premises for over 45 years, even after
the expiry of 15 years lease period and thus prescribed title by
adverse possession and there is no jural relationship of landlord and
tenant between the appellants and them.
4. During the pendency of the Eviction Petition Narayanappa died on
13.7.2006 and his wife namely the third appellant herein filed an
application in I.A. No.7 in the Eviction Petition seeking to implead
her also as a legal representative of Narayanappa. That application
was contested by respondent no.1 herein by pleading that Narayanappa
died as a bachelor and the appellants herein are not his legal heirs.
After inquiry the Trial Court allowed the application and the third
appellant herein was brought on record. In the trial the first
appellant herein examined himself as PW1 and one Chandrappa was
examined as PW2 and Exh.P1 to P14 came to be marked on their side.
Respondent no.1 herein examined himself as RW1 and marked documents at
R1 and R25 on his side.
5. The Trial Court on consideration of oral and documentary
evidence by order dated 27.7.2010 allowed the petition directing the
respondent no.1 herein and others to pay arrears of rent at the rate
of Rs.35/- per month from 1.12.2001 to the date of the order and
further directed the respondent no.1 herein and others to quit and
deliver the vacant possession of the schedule premises to the
appellants herein, within three months from the date of the order.
Respondent no.1 herein preferred revision in H.R.R.P. No.246 of 2010
and the High Court after hearing both sides allowed the Revision
Petition and stayed the proceeding in HRC No.32 of 2008 before the
Trial Court by directing the appellants herein to have their rights
adjudicated before the competent Civil Court. Challenging the said
order the appellants have preferred the present appeal.
6. The learned counsel appearing for the appellants contended that
appellants 1 and 2 herein were arrayed as sons of Narayanappa along
with him in the Eviction Petition and all the three appellants are the
original petitioners therein and later third appellant Sundamma was
impleaded as wife of late Narayanappa after inquiry by the Trial Court
and that order was never challenged and became final and when the
jural relationship is admitted it is respondent no.1 herein to
approach the Civil Court seeking for decree that the appellants are
not owners of the petition property and the impugned order of the High
Court relegating the appellants to Civil Court is not justifiable and
it is liable to be set aside. Per contra Mr. Sri Gurukrishna Kumar,
learned senior counsel appearing for the respondent no.1 herein,
contended that Narayanappa died as a bachelor and the marital
relationship between third appellant Sundamma and late Narayanappa has
not been proved and there is no proof for the claim of the appellants
that Narayanappa was also called as Muneshwar Rao and these are issues
that are to be decided by the competent Civil Court as rightly held by
the High Court.
7. We carefully considered the rival contentions. Exh.P1 is the
original lease deed dated 29.5.1967 and as per the recitals therein
the petition property was let out to late Ramaiah, father of
respondent no.1 herein, on a monthly rent of Rs.35/- by the owner
Narayanappa. The jural relationship of landlord and tenant between
late Narayanappa and late Ramaiah is thus established and it is
admitted by respondent no.1 herein as held by Courts below. The Trial
Court found that the appellants herein/petitioners established that
they require petition premises for their own use and occupation and
ordered delivery of vacant possession to them besides the direction to
pay the rental arrears. Considering the contention of respondent no.1
herein that the appellants herein are not the legal heirs of original
lessor Narayanappa, the High Court directed the appellants herein to
have their rights adjudicated before the competent Civil Court and
thereafter to proceed with the Eviction Petition.
8. The respondent no.1 herein in support of his plea produced two
documents, namely, Ration card and copy of Registration certificate of
Car bearing no.KA-05-EX-2037. This Registration certificate, which is
now annexed with the counter affidavit, was not part of record before
the Courts below and cannot be taken into consideration more
particularly when it is being disputed. The Trial Court while dealing
with the entries in the Ration card, took into consideration the
registered Will executed by late K. Narayanappa, wherein, it is
recited that testator is K. Narayanappa @ Muneshwar Rao and rendered a
finding that Narayanappa and Muneshwar Rao are one and the same
person. It is also relevant to point out that the Trial Court after
conducting inquiry, ordered the impleadment of third appellant
Sundamma as legal representative of deceased Narayanappa in the
Eviction Petition and the said order has become final. In any event,
the contention of the respondent no.1 herein that appellants 1 and 2
herein are not the sons of late Narayanappa is liable to be rejected
for the reason that all the three of them jointly filed the Eviction
Petition against respondent no.1 herein and in the petition,
appellants 1 and 2 are described as sons of late Narayanappa. In
other words Narayanappa declared appellants 1 and 2 herein as his sons
while seeking eviction of respondent no.1 herein. It is also
pertinent to point out that respondent no.1 herein, in his counter
filed in the Eviction Petition when Narayanappa was alive, did not
raise any objection that appellants 1 and 2 herein, are not the sons
of Narayanappa and on the other hand his only contention was that he
has prescribed title to the petition premises by adverse possession.
The High Court misdirected itself in relegating the appellants to
Civil Court as rightly contended by the learned counsel for the
appellants and the order is unsustainable.
9. The appeal is allowed and the impugned order of the High Court
is set aside and the order of the Trial Court is restored. No order
as to costs.
………………………….J.
(T.S. Thakur)
……………………………J.
(C. Nagappan)
New Delhi;
May 9, 2014
advocatemmmohan 
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