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IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
SACHIN SHANKAR MAGADUM, J.
Bhojaraj S/o Narayan Basawa – Petitioner
Versus
Suresh S/o Amanna Raikar – Respondent
C.R.P. No. 100034 of 2021
Decided On : 25-02-2022
Civil Procedure Code, 1908 - Section 115, 151 r/w Order XLI Rule 27 - Transfer of Property Act, 1882 - Section 106 - Ejectment suit - Seeking relief of possession - Mesne profits - Plaintiffs, filed ejectment suit seeking relief of possession and also mesne profits @ Rs. 5,000/- per month from date of suit till respondent-defendant hands over actual possession of suit property to plaintiffs - Whether there is valid termination of tenancy.
Finding of the Court;
Petitioners have acquired valid right and title over suit property and therefore, have filed ejectment suit - Respondent-defendant has disputed title - Merely because respondent-defendant disputes title that does not oust jurisdiction of Small Cause Court in examining whether there is valid termination of tenancy - Petitioners under bona-fide impression that documents placed during trial would be sufficient, have proceeded with suit - However, Small Cause Court has come to conclusion that no title documents are produced - If petitioners have acquired valid right and title, they cannot be non-suited and delivery of possession cannot be denied on ground that title documents are not produced - If such recourse is adopted, petitioners, who are owners of suit property would lose their valuable rights in property and this would result in wrongful gain to respondent-defendant, who is just a tenant under petitioners - Therefore, to do substantial justice, this Court is of view that additional evidence is very much essential and this Court is bound to take cognizance of additional evidence - It appears that petitioners under bona-fide impression that copy of lease deed and property tax extract would suffice to seek possession might not have chosen to produce copy of sale deed - reasons assigned while producing additional evidence appears to be probable and quite satisfactory – Therefore, court is of view that additional evidence deserves to be admitted on record - Court cannot substitute its decision, which is not permissible under law - In that view of matter, Court is of view that this is a fit case to remit matter to Court below with a direction to consider additional evidence and thereafter proceed to pass appropriate orders after affording opportunity of hearing to both parties - Since both parties are represented by their respective counsel, they are directed to appear before Small Cause Court without expecting further notice.
Result: Petition dispose off.
Point of Law: While exercising revisional jurisdiction, this Court cannot substitute its decision, which is not permissible under law.
ORDER :
1. The captioned civil revision petition is filed by the plaintiffs feeling aggrieved by the dismissal of suit by Small Cause Court.
2. Facts leading to the case are as under.
3. The present petitioners, who are plaintiffs, filed ejectment suit seeking relief of possession and also mesne profits @ Rs. 5,000/- per month from the date of suit till respondent-defendant hands over actual possession of the suit property to the plaintiffs. The petitioners claim that they are the absolute owners of a commercial shop with red tile roofed building in a ground floor and first floor bearing CTS No. 3560/1B of CTS Ward No. 1, measuring north-south 11 feet and east-west 17 feet with extra gallery. The petitioners claim that they are owners of suit schedule property having purchased the same along with adjacent properties from its previous owner viz. Smt. Sushila @ Tukkubai W/o Vishwanathsa Chavan and others through a registered sale deed dated 07.07.2017. The petitioners also contended that the purchase was communicated to the defendant and on account of attornment, respondent-defendant was directed to pay monthly rent of Rs. 145/- per month to the petitioners. The petitioners-plaintiffs pleaded in the plaint that the respondent-defendant has failed to pay the rent regularly. It was also contended that since the property purchased by the petitioners is in dilapidated condition and unfit for occupation, the petitioners were issued with a legal notice from HDMC authorities to handover the possession and were directed to vacate the occupants and co-operate for demolition of the building. The petitioners also claim that the tenancy of the respondent-defendant came to an end by afflux of time and in this background, the petitioners requested the respondent-defendant to pay the rents and handover the vacant possession. However respondent-defendant has neither paid the arrears of rent nor has he vacated the premises. Hence, petitioners issued notice to the respondent-defendant to vacate the shop premises. Inspite of issuance of notice, the respondent-defendant did not vacate the shop premises and therefore, left with no other alternative, the petitioners filed a suit before the Small Cause Court seeking possession of the property in question.
4. The respondent-defendant, on receipt of summons, appeared before the Small Cause Court and stoutly denied the entire averments made in the plaint by filing a written statement. The respondent-defendant has disputed the relationship of landlord and tenant between him and the petitioners. He also disputed the ownership of petitioners over the suit schedule premises. The respondent-defendant has also contended that unless the petitioners establish their title over the suit property, the present suit for possession is not maintainable. The respondent-defendant also claims that the termination of tenancy is illegal. The respondent-defendant also seriously disputed the attornment of tenancy as alleged by the petitioners.
5. In order to substantiate their claim, the petitioner No. 2 examined himself as PW-1 and relied on documents vide Ex.P1 to Ex.P5. By way of rebuttal evidence, respondent-defendant examined himself as DW-1 and relied on documentary evidence vide Ex.D1 to Ex.D3. The Small Cause Court, on appreciation of oral and documentary evidence, has answered point No. 1 in negative by holding that the petitioners-plaintiffs have failed to prove that there is a relationship of landlord and tenant between the petitioners and respondent-defendant. The Small Cause Court has recorded a finding that the petitioners have failed to establish their title over the suit property and therefore, has come to the conclusion that Point No. 2 and 3 would not survive for consideration. The Small Cause Court having examined the material on record was of the view that the burden was on the petitioners to prove their title over the suit property. The Small Cause Court was of the view that the lease deed produced by the peti
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