IMPORTANT POINT
Finding of the criminal court regarding a document could not be made basis for relief of specific performance.

Judgment :

M.Y. Eqbal, J.

Aggrieved by the judgment and orders dated 25.6.2003 passed by the High Court of Karnataka in Regular First Appeal No. 201 of 1992, the appellants have preferred this appeal by special leave. By impugned judgment, High Court partly allowed the appeal, set aside the judgment of the trial court and decreed the suit of the plaintiff-respondents herein for specific performance as well as for recovery of possession of suit items I, II and III.

2. The factual background as will appear from the trial court judgment need to be highlighted and reproduced hereunder.

3. The plaintiff-respondent claimed to be the son of Late P. Abdul Rahiman Sab alias Jambusab. The late Jambusab had three wives. The first wife’s son was Abdul Sakoorsab, who died in the year 1967. The first plaintiff and his younger brother R.A. Rasheed are the children of Jambusab from his second wife Azizabi. Through the 3rd wife Mahajambi, Jamusab had begotten 4 children namely, A. Abdul Subhan, R. Abdul Majeed, Maqubal Jan and Aktharunnisa. The children of late Jambusab could not agree to divide the properties of late Jambusab. They litigated and ultimately in R.A. 133/49-50 on the file of the High Court, a final decree was passed and the properties described in the Schedule to the plaint fell to the joint share of the first plaintiff and his younger brother R.A. Rasheed. The date of the decree is 22.08.1950. The first plaintiff and his younger brother thus became the exclusive joint owners of the suit schedule property and from the date of the High Court decree namely 22.08.1950. The first item of the suit schedule which was designed as a Cinema building was leased jointly by the first plaintiff and his younger brother R.A. Rasheed to late N.K. Subbaiah Shetty and one Rattanhalli Ramappa jointly by means of a registered lease deed dated 26.02.1951 specifying therein a period of 15 years for the running of the lease. The said lease by the terms provided inter alia for a monthly rent of Rs. 400/-to be paid in equal halves to the first plaintiff and R.A. Rasheed. The lessees had to advance Rs.10,000/-which will be treated as a charge on item no. 1 of suit Schedule. All the equipments such as cinema projector, electric generator, furniture and other accessories were purchased by the said lessees which they had to provide under the contract and the theatre was equipped for showing films. It was also a term under the lease that these equipments projector, generator etc., should become the property of the first plaintiff and his brother R.A. Rasheed on the termination of the lease. While only Rs. 5,000/-was given as advance, the expenses of the balance of Rs. 5,000/-which was retained by N.K. Subbaiah Shetty and Rattanhalli Ramappa has been accounted for and thus only Rs. 5000/-is the actual amount of advance.

4. But, N.K. Subbaiah Shetty and his joint tenant Ratanhalli Ramappa who were astute businessmen found later 2 years that they could not manage the theatre property to earn profits. They both successfully induced the inexperienced 1st plaintiff to enter into a contract dated 05.08.1953 with them which ostensibly appear to be a sub-lease of their rights to the 1st plaintiff. Though the 1st plaintiff and his younger brother had become entitled to be rightfully to the equipments in the cinema theatre as per the terms of the lease date 26.02.1951, they were not even under any liability to pay the same on the termination of the lease. N.K. Subbaiah Shetty astutely got a provision made in the so-called sub-lease dated 05.08.1953 that he should get a rent of Rs. 250/-for himself which was in reality interest for sum of Rs. 5000/-given as advance, but which had been recovered by N.K. Subbaiah Shetty during the period the lease was subsisting in his favour. Besides nothing was due to be paid to N.K. Subbaiah Shetty as it was voluntary surrender to ease evidence by the so-called sub-lease. The return of Rs. 250/-per month which could only be demanded as inte