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1995 Supreme(Kar) 210
Karnataka High Court
AKKATAI - Appellant
Versus
BABURAO SATTAPPA ANGOL - Respondent
Decided On : 04-20-95
R.S.A. : 399 of 1990
G.S.VISHVESHVARA, S.S.KOTI
The main legal point established in the judgment is that a person must be in actual possession of the property to maintain an application offering obstruction or objection to the execution, and implied surrender of tenancy rights can be inferred from the conduct of the parties.
Headnote:
OBSTRUCTION - Tenancy Rights - Order 21, Rule 97, C. P. C. - 111 (d) of Transfer Of Property Act - Summary of Acts and Sections: Order 21, Rule 97, Rule 98, Rule 99, Rule 100, Rule 101, 111 (d) of Transfer Of Property Act - The court discussed the application of Order 21, Rule 97, C. P. C. and Section 111 (d) of Transfer Of Property Act in the context of the appellant's claim of tenancy rights and obstruction to the execution of an eviction order. The court emphasized the requirement for a person to be in actual possession of the property in order to maintain an application offering obstruction or objection to the execution. It also considered the concept of implied surrender of tenancy rights and its basis on the doctrine of estoppel. The court's decision was influenced by the interpretation of these legal provisions, leading to the dismissal of the appeal.
Fact of the Case:
The original first respondent sought possession of a house through eviction proceedings. The appellant, claiming inherited tenancy rights, filed an application seeking a stay of execution. The executing court rejected the application, and the appellant appealed, arguing that she had inherited the tenancy right and had the right to obstruct the delivery despite not being in actual possession of the property.
Finding of the Court:
The court found that the appellant was not in possession of the premises when she filed the application, rendering her incompetent to offer obstruction or objection to the delivery. Additionally, the court inferred an implied surrender of the appellant's joint tenancy rights based on her conduct, leading to the dismissal of the appeal.
Issues: The court considered whether the appellant, not in actual possession of the property, could maintain an application offering obstruction or objection to the execution. It also examined the effect of implied surrender of tenancy rights when the heir leaves the leasehold premises with the intention of permanently living elsewhere.
Ratio Decidendi: The court held that a person must be in actual possession of the property to maintain an application offering obstruction or objection to the execution. It also established that implied surrender of tenancy rights can be inferred from the conduct of the parties, leading to the conclusion that the appellant had lost her joint tenancy rights.
Final Decision: The appeal was dismissed with costs based on the finding that the appellant was not in possession of the premises when she filed the application and the inference of implied surrender of her joint tenancy rights.
( 1 ) THE original first respondent-baburao sattappa angol must have fired the day he let out his house bearing c. t. s. No. 524/a situated at kulkarni galli, belgaum, in favour of balappa kadahatti somewhere in 1969. He was in service then and hoping that he would be able to get back the house by the time of his retirement, he appears to have let out the house. Balappa, when he was living in this house, died in 1976 leaving behind him his wife, the present second respondent, 2 sons, respondents 3 and 4, and an unmarried daughter, the present appellant akkatai. Baburao was to retire in 1983 and possibly being aware of the laws delays initiated proceedings to secure possession of the house so that he could settle down there after retirement by filing an eviction petition in hrc No. 53 of 1978 before i additional munsiff, belgaum, against respondents 2 to 4. Though he had also impleaded the appellant as a respondent he later deleted her name as she had been married and gone to live with her husband. After contest by respondents 2 to 4 the eviction petition was allowed on 4-10-1980. Respondents 2 to 4 then preferred a revision petition in hrc. Rp. No. 36 of 1981 before the principal district judge, belgaum. That petition was dismissed and respondents 2 to 4 then preferred a revision petition before this court in c. r. p. No. 63 of 1983. That petition also came to be dismissed on 9-12-1986 giving time to respondents 2 to 4 to vacate the premises. After the expiry of the time, when the landlord baburao had to file execution petition to secure possession, the present appellant filed a suit in original suit No. 705 of 1987 on the file of the third additional munsiff, belgaum, seeking a declaration that she has inherited tenancy rights in regard to the above house from her father balappa and that she is therefore a tenant and for permanent injunction restraining baburao, the decree-holder, from taking possession of the suit house on the strength of the eviction order obtained by him against the respondents 2 to 4. She filed an application for temporary injunction and after contest the learned munsiff, rejected that application by his order dated 9-2-1988. The appellant preferred an appeal in m. a. No. 10 of 1988 before the civil judge, belguam, on 15-2-1988. In the meanwhile baburao filed a petition for execution of the eviction order obtained by him against respondents 2 to 4 in execution case No. 26 of 1988 before the munsiff. The appellant possibly apprehending that the executing court may deliver possession of the premises before the appeal filed by her was heard she filed an application under Section 151, C. P. C. in the execution case on 18-2-1988 requesting the court to stay further proceedings in the execution petition till the final disposal of the original suit no. 705 of 1987 filed by her. The decree-holder opposed that application pointing out to the court of the earlier proceedings which he had taken and about even the dismissal of the application filed by the appellant for a temporary injunction in the original suit filed by her. Unfortunately for the decree-holder, the munsiff proceeded to hold an enquiry on that application treating the same as an application offering obstruction to the delivery of possession of the property sought for by the decree-holder.
( 2 ) AFTER a detailed enquiry the executing court rejected the appellant's application holding that she had neither inherited the tenancy right from her father nor she was in possession of the premises in question. Undaunted by this order the appellant filed an appeal before the civil judge in r. a. No. 73 of 1988 and was able to secure an order of stay of execution of the eviction order. The learned civil judge, after elaborately considering various contentions raised before him, dismissed the appeal holding that though the appellant had inherited the tenancy right along with her mother and brothers she was not in occupation of the premises afte
