JUDGMENT AND DECREE DATED 07.01.2013 PASSED IN
O.S.NO.315/2005 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE., MANGALORE, DAKSHINA KANNADA.
6
IN RSA NO.1569/2017:
BETWEEN:
SRI. ABBAS MOHAMMED
AGED MAJOR,
S/O ABDUL REHAMAN R/O. NOOR MANZIL,
3RDCROSS, SUBHAS NAGAR,
MANGALURLU-575001. …APPELLANT
(BY SRI. SANATH KUMAR SHETTY K., ADVOCATE)
AND:
1. SRI. GEORGE ALBUQUERQUE
AGED ABOUT 67 YEARS
S/O LATE CYRIL ALBUQUERQUE
RESIDING AT HOIGE BAZAR,
MANGALORE-575001.
2. COSMOPOLITAN RECREATION CLUB ®
REPRESENTED BY ITS SECRETARY
OPPOSITE CATHOLIC CLUB/CENTER,
HAMPANAKATTA,
MANGALORE-575001.
3. COSMOPOLITAN CLUB ®
REPRESENTED BY ITS SECRETARY,
OPPOSITE CATHOLIC CLUB/CENTER,
HAMPANAKATTA,
MANGALORE-575001.
4. HOTEL DELUXE
REPRESENTED BY ITS PROPRIETOR
PRABHU NIVAS, N.G.Y.ROAD,
ATTAWAR,
MANGALURU-575001.
7
5. SMT. VILASINI
AGED ABOUT 74 YEARS
RESIDING AT GEORGE MARTIS ROAD,
KADRI, MALLIKATTA,
MANGALORE-575001.
6. SRI. DEEPAK SHETTY
AGED ABOUT 41 YEARS
7. SRI. RAKESH SHETTY
AGED ABOUT 45 YEARS
RESPONDENTS NO.6 AND 7 ARE
CHILDREN OF SADASHIVA SHETTY,
RESIDING AT KADRI, MALLIKATTA,
MANGALORE-575001.
8. P.M. ADAPPA & CO.,
STATE LOTTERY DISTRIBUTORS
9. SRI. MOHAMMED SAJID
LUCKY JUICE PARADISE
10. MAMMU T V
MANIYOOR BROTHERS
RESPONDENT NOs.8 TO 10 ARE R/AT COSMOPOLITAN CLUB BUILDING,
HAMPANAKATTE,
MANGALURU-575001.
11. KALPANA BOOK SHOP
CARRYING ON BUSINESS AT
COSMOPOLITAN CLUB BUILDING
OPPOSITE CATHOLIC CLUB/CENTRE
HAMNAPANAKATTA,
MANGALORE-575 001
12. SMT. PUSHPA P. PRABHU
W/O LATE PURUSHOTHAM PRABHU,
AGED ABOUT 70 YEARS
8
13. SMT. PADMINI KAMATH
D/O LATE PURUSHOTHAM PRABHU,
AGED ABOUT 41 YEARS
14. SRI. PRAVEEN PRABHU
S/O LATE PURUSHOTHAM PRABHU,
AGED ABOUT 40 YEARS
RESPONDENTS NO. 12 TO 14
ARE RESIDING AT PRABHU NIVAS,
N.G. ROAD, ATTAVAR,
MANGALURU-575001. …RESPONDENTS
(BY SRI. T.N.RAGHUPATHY, ADVOCATE FOR SRI. VISHWAJITH
RAI M., ADVOCATE FOR CAVEATOR/RESPONDENT NO.1)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908
AGAINST THE JUDGMENT AND DECREE DATED 24.04.2017
PASSED IN R.A. NO.33/2013 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE, MANGALURU, DAKSHINA
KANNADA, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 07.01.2013 PASSED IN O.S
NO.315/2005 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE,
MANGALORE, DAKSHINA KANNADA.
IN RSA NO.1570/2017:
BETWEEN:
SMT. VILASINI
W/O LATE M.V.SHETTY,
AGED ABOUT 74 YEARS,
RESIDING AT GEORGE MARTIS
ROAD, KADRI, MALLIKATTA,
MANGALORE-575001.
...APPELLANT
(BY SRI. SANATH KUMAR SHETTY K., ADVOCATE)
9
AND:
1. SRI. GEORGE ALBUQUERQUE
AGED ABOUT 67 YEARS,
S/O LATE CYRIL ALBUQUERQUE,
RESIDING AT HOIGE BAZAR,
MANGALORE-575001.
2. COSMOPOLITAN RECREATION CLUB ®
REPRESENTED BY ITS SECRETARY,
OPPOSITE CATHOLIC CLUB/CENTER,
HAMPANAKATTA,
MANGALORE-575001.
3. COSMOPOLITAN CLUB (R)
REPRESENTED BY ITS SECRETARY,
OPPOSITE CATHOLIC CLUB/CENTER,
HAMPANAKATTA,
MANGALORE-575001.
4. HOTEL DELUXE
REPRESENTED BY ITS PROPRIETOR
PRABHU NIVAS, N.G.ROAD,
ATTAWAR, MANGALURU-575001.
5. SRI. ABBAS MOHAMMED
AGED MAJOR,
SHOE CORNER,
HAMPANAKATTA
MANGALURU-575 001.
6. SMT. PUSHPA P. PRABHU
W/O LATE PURUSHOTHAM PRABHU,
AGED ABOUT 70 YEARS,
7. SMT. PADMINI KAMATH
D/O LATE PURUSHOTHAM PRABHU,
AGED ABOUT 41 YEARS,
10
8. SRI. PRAVEEN PRABHU
S/O LATE PURUSHOTHAM PRABHU,
AGED ABOUT 40 YEARS,
RESPONDENTS NO. 6 TO 8
ARE RESIDING AT
PRABHU NIVAS, N.G. ROAD,
ATTAVAR MANGALURU-575001.
9. P.M. ADAPPA & CO.
STATE LOTTERY DISTRIBUTORS,
10. SRI. MOHAMMED SAJID
LUCKY JUICE PARADISE
R/AT COSMOPOLITAN CLUB BUILDING, OPPOSITE CATHOLIC CLUB/CENTER,
HAMPANAKATTA,
MANGALORE-575001.
11. MAMMU P V
MANIYOOR BROTHERS
CARRYING ON BUSINESS AT
COSMOPOLITAN CLUB BUILDING,
OPPOSITE CATHOLIC CLUB CENTRE,
HAMPANAKATTA,
MANGALURU-575 001
12. KALPANA BOOK SHOP
CARRYING ON BUSINESS AT
COSMOPOLITAN CLUB BUILDING,
OPPOSITE CATHOLIC CLUB/CENTRE,
HAMNAPANAKATTA,
MANGALORE-575 001 …RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908,
AGAINST THE JUDGMENT AND DECREE DATED 24.04.2017
PASSED IN R.A. NO.25/2013 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE, MANGALURU, DAKSHINA
KANNADA, DISMISSING THE APPEAL AND CONFIRMING THE
11
JUDGMENT AND DECREE DATED 07.01.2013 PASSED IN O.S
NO.315/2005 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE,
MANGALORE, DAKSHINA KANNADA.
IN RSA NO.1571/2017:
BETWEEN:
MAMMU P.V.
AGED ABOUT 59 YEARS,
S/O KHADER KUTTI,
MANIYOOR BROTHERS,
NEAR COSMOPOLITAN CLUB,
OPP: CATHOLIC CLUB,
HAMPANAKATTA,
MANGALURU-575001. …APPELLANT
(BY SRI. SANATH KUMAR SHETTY K., ADVOCATE)
AND:
1. SRI GEORGE ALBUQUERQUE
AGED ABOUT 67 YEARS,
S/O LATE CYRIL ALBUQUERQUE
RESIDING AT HOIGE BAZAR
MANGALORE-575001.
2. COSMOPOLITAN RECREATION CLUB
REPRESENTED BY ITS SECRETARY
OPPOSITE CATHOLIC CLUB/CENTER
HAMPANAKATTA,
MANGALORE-575001.
3. HOTEL DELUXE
REPRESENTED BY ITS PROPRIETOR
4. SRI ABBAS MOHAMMED
SHOE CORNER
12
5. SMT. PUSHPA P. PRABHU
W/O LATE PURUSHOTHAM PRABHU
AGED ABOUT 70 YEARS
6. SMT. PADMINI KAMATH
D/O LATE PURUSHOTHAM PRABHU
AGED ABOUT 41 YEARS
7. SRI. PRAVEEN PRABHU
S/O LATE PURUSHOTHAM PRABHU
AGED ABOUT 40 YEARS
RESPONDENTS NO.5 TO 7
ARE RESIDING AT
PRABHU NIVAS, N.G. ROAD,
ATTAVAR, MANGALURU-575001.
8. P.M. ADAPPA & CO.
STATE LOTTERY DISTRIBUTORS
9. SRI. MOHAMMED SAJID
LUCKY JUICE PARADISE
10. SMT. VILASINI
AGED ABOUT 74 YEARS
RESIDING AT GEORGE MARTIS ROAD,
KADRI, MALLIKATTA,
MANGALORE-575001.
11. KALPANA BOOK SHOP
CARRYING ON BUSINESS AT
COSMOPOLITAN CLUB BUILDING
OPPOSITE CATHOLIC CLUB/CENTRE
HAMNAPANAKATTA
MANGALORE-575001. …RESPONDENTS
(BY SRI. T.N.RAGHUPATHY, ADVOCATE FOR SRI. VISHWAJITH
RAI M., ADVOCATE FOR CAVEATOR/RESPONDENT NO.1)
13
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 READ WITH ORDER XLII RULE 1 OF THE CODE OF
CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND
DECREE DATED 24.04.2017 PASSED IN R.A.NO.66/2013 ON
THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE
MANGALURU, DAKSHINA KANNADA, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
07.01.2013 PASSED IN O.S.NO.315/2005 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE, MANGALORE, DAKSHINA KANNADA.
IN RSA NO.1572/2017:
BETWEEN:
KALPANA BOOK SHOP
REPRESENTED BY ITS PARTNER
SRI. ABDUL RAZAK
S/O LATE KUNMHAMU
AGED ABOUT 25 YEARS
CARRYING ON BUSINESS AT
COSMOPOLITAN CLUB BUILDING
HAMPANAKATTA
MANGALORE - 575001
...APPELLANT
(BY SRI. SANATH KUMAR SHETTY K, ADVOCATE)
AND:
1. SRI. GEORGE ALBUQUERQUE
AGED ABOUT 67 YEARS,
S/O LATE CYRIL ALBUQUERQUE
RESIDING AT HOIGE BAZAR
MANGALORE.
2. COSMOPOLITAN RECREATION CLUB ®
REPRESENTED BY ITS SECRETARY
OPPOSITE CATHOLIC CLUB/CENTER
HAMPANAKATTA
MANGALORE.
14
3. COSMOPOLITAN CLUB ®
REPRESENTED BY ITS SECRETARY
OPPOSITE CATHOLIC CLUB / CENTER
HAMPANAKATTA
MANGALORE.
4. HOTEL DELUXE
REPRESENTED BY ITS PROPRIETOR
5. SRI. ABBAS MOHAMMED
AGED MAJOR
SHOE CORNER
HAMPANAKATTA
MANGALURU
6. SMT. PUSHPA P. PRABHU
W/O LATE PURUSHOTHAM PRABHU
AGED ABOUT 70 YEARS
7. SMT. PADMINI KAMATH
D/O LATE PURUSHOTHAM PRABHU
AGED ABOUT 41 YEARS
8. SRI. PRAVEEN PRABHU
S/O LATE PURUSHOTHAM PRABHU
AGED ABOUT 40 YEARS
RESPONDENTS NO.6 TO 8
ARE RESIDING AT PRABHU NIVAS
N.G. ROAD, ATTAVAR
MANGALURU.
9. P.M. ADAPPA & CO .,
STATE LOTTERY DISTRIBUTORS
OPP. CATHOLIC CLUB,
HAMPANAKATTA,
MANGALURU-575001.
10. SRI. MOHAMMED SAJID
LUCKY JUICE PARADISE
OPP. CATHOLIC CLUB,
15
HAMPANAKATTA,
MANGALURU-575001.
11. MAMMU P.V.
MANIYOOR BROTHERS
OPP. CATHOLIC CLUB,
HAMPANAKATTA,
MANGALURU-575001. …RESPONDENTS
(BY SRI. T.N.RAGHUPATHY, ADVOCATE FOR
SRI. VISHWAJITH RAI M, ADVOCATE FOR
CAVEATOR/RESPONDENT NO.1)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 READ WITH ORDER XLII RULE 1 OF THE CODE OF
CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND
DECREE DATED 24.04.2017 PASSED IN R.A.NO.26/2013 ON
THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE., MANGALURU,
DAKSHINA KANNADA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 07.01.2013
PASSED IN OS.NO.315/2005 ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE, MANGALORE, DAKSHINA KANNADA.
IN RSA NO.1588/2017:
BETWEEN:
1. SMT. PUSHPA P. PRABHU
W/O. LATE PURUSHOTHAM PRABHU,
AGED ABOUT 70 YEARS,
2. SMT. PADMINI KAMATH
D/O. LATE PURUSHOTHAM PRABHU,
AGED ABOUT 41 YEARS,
3. SRI. PRAVEEN PRABHU
S/O. LATE PURUSHOTHAM PRABHU,
AGED ABOUT 40 YEARS,
APPELLANTS NO.1 TO 3
ARE RESIDING AT PRABHU NIVAS,
16
N.G. ROAD, ATTAVAR,
MANGALURU-570015.
...APPELLANTS
(BY SRI. SANATH KUMAR SHETTY K., ADVOCATE)
AND:
1. SRI. GEORGE ALBUQUERQUE
AGED ABOUT 67 YEARS,
S/O. LATE CYRIL ALBUQUERQUE,
RESIDING AT HOIGE BAZAR,
MANGALORE-575001.
2. COSMOPOLITAN RECREATION CLUB ®
REPRESENTED BY ITS SECRETARY,
OPPOSITE CATHOLIC CLUB/CENTER,
HAMPANAKATTA,
MANGALORE-575001. …RESPONDENTS
(BY SRI. T.N.RAGHUPATHY, ADVOCATE FOR SRI. VISHWAJITH
RAI M, ADVOCATE FOR CAVEATOR/RESPONDENT NO.1)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 READ WITH ORDER XLII RULE 1 OF THE CODE OF
CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND
DECREE DATED 24.04.2017 PASSED IN R.A NO.23/2013 ON
THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE,
MANGALURU, DAKSHINA KANNADA, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
07.01.2013 PASSED IN O.S NO.517/2006 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE, MANGALORE, DAKSHINA KANNADA.
IN RSA NO.1589/2017:
BETWEEN:
SRI. DEEPAK SHETTY
AGED ABOUT 41 YEARS,
S/O SADASHIVA SHETTY
RESIDING AT KADRI,
17
MALLIKATTA,
MANGALORE-575001.
...APPELLANT
(BY SRI. SANATH KUMAR SHETTY K., ADVOCATE)
AND:
1. SRI. GEORGE ALBUQUERQUE
AGED ABOUT 67 YEARS,
S/O LATE CYRIL ALBUQUERQUE R/A HOIGE BAZAR
MANGALORE-575001
2. COSMOPOLITAN RECREATION CLUB ®
REPRESENTED BY ITS SECRETARY
OPPOSITE CATHOLIC CLUB/CENTER
HAMPANAKATTA,
MANGALORE-575001.
3. SRI. RAKESH SHETTY
AGED ABOUR 45 YEARS,
RESIDING AT KADRI, MALLIKATTA,
MANGALORE-575001.
…RESPONDENTS
(BY SRI. T.N.RAGHUPATHY, ADVOCATE FOR SRI. VISHWAJITH
RAI M., ADVOCATE FOR CAVEATOR/RESPONDENT NO.1)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908
AGAINST THE JUDGMENT AND DECREE DATED 24.04.2017
PASSED IN R.A.NO.27/2013 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE, MANGALURU, DAKSHINA
KANNADA, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 07.01.2013 PASSED IN
O.S.NO.539/2006 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
MANGALORE, DAKSHINA KANNADA.
THESE APPEALS ARE COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
18
JUDGMENT
RSA No.1561/2017 is filed by the defendant Nos.5(a), 5(b) and 5(c) in O.S. No.315/2005 challenging the concurrent finding of fact recorded in O.S. No.315/2005 and R.A. No.22/2013, by which the Trial Court and the First Appellate Court respectively held that the defendants are liable to quit and deliver vacant possession of the suit schedule premises within three months from the date of the Judgment and decree of the Trial Court i.e., 07.01.2013.
2. RSA No.1388/2017 is filed by the defendant No.2 in O.S. No.315/2005 challenging the concurrent finding of fact recorded in O.S. No.315/2005 and R.A. No.64/2013, by which the Trial Court and the First Appellate Court respectively held that the defendants are liable to quit and deliver vacant possession of the suit schedule premises within three months from the date of the Judgment and decree of the Trial Court i.e.,
07.01.2013.
19
3. RSA No.1569/2017 is filed by the defendant No.4 in O.S. No.315/2005 challenging the concurrent finding of fact recorded in O.S. No.315/2005 and R.A. No.33/2013, by which the Trial Court and the First Appellate Court respectively held that the defendants are liable to quit and deliver vacant possession of the suit schedule premises within three months from the date of the Judgment and decree of the Trial Court i.e.,
07.01.2013.
4. RSA No.1570/2017 is filed by the defendant No.6(a) in O.S. No.315/2005 challenging the concurrent finding of fact recorded in O.S. No.315/2005 and R.A. No.25/2013, by which the Trial Court and the First Appellate Court respectively held that the defendants are liable to quit and deliver vacant possession of the suit schedule premises within three months from the date of the Judgment and decree of the Trial Court i.e.,
07.01.2013.
20
5. RSA No.1571/2017 is filed by the defendant No.9 in O.S. No.315/2005 challenging the concurrent finding of fact recorded in O.S. No.315/2005 and R.A. No.66/2013, by which the Trial Court and the First Appellate Court respectively held that the defendants are liable to quit and deliver vacant possession of the suit schedule premises within three months from the date of the Judgment and decree of the Trial Court i.e.,
07.01.2013.
6. RSA No.1572/2017 is filed by the defendant No.10 in O.S. No.315/2005 challenging the concurrent finding of fact recorded in O.S. No.315/2005 and R.A. No.26/2013, by which the Trial Court and the First Appellate Court respectively held that the defendants are liable to quit and deliver vacant possession of the suit schedule premises within three months from the date of the Judgment and decree of the Trial Court i.e.,
07.01.2013.
21
7. RSA No.1588/2017 is filed by the plaintiff Nos.1(a), 1(b) and 1(c) in O.S. No.517/2006 (defendant Nos.5(a) to 5(c) in O.S. No.315/2005) challenging the concurrent finding of fact recorded in O.S. No.517/2006 and R.A. No.23/2013, by which the Trial Court and the First Appellate Court respectively held that the plaintiff Nos.1(a), 1(b) and 1(c) are not entitled to the relief of declaration that they have perfected their title to a portion of the suit schedule property by adverse possession.
8. R.S.A. No.1589/2017 is filed by one of the legal representatives of the deceased plaintiff in O.S. No.539/2006 challenging the concurrent finding of fact recorded in O.S. No.539/2006 and R.A. No.27/2013, by which the Trial Court and the First Appellate Court respectively held that the legal representatives of the deceased plaintiff are not entitled to the relief of declaration that they have perfected their title to a portion of the suit property by adverse possession.
22
9. The plaintiff in O.S. No.315/2005 is the owner of the suit property whereas the defendant No.1 is stated to be the successor tenant of defendant No.2 while the other defendants are stated to be the sub-tenants under the defendant No.1. The sub-tenants also filed suits in O.S. Nos.517/2006, 539/2006, 30/2007, 170/2007 and 635/2007 for declaration that they have perfected their title to the respective portion of the suit property in their possession by adverse possession and for consequential relief of injunction.
10. For the sake of brevity, the plaintiff in O.S. No.315/2005 shall be referred to as the 'landlord' and the defendant No.2 shall be referred to as the 'first tenant' while the defendant No.1 was the successor tenant and wherever the context requires shall be referred as
"tenants". The defendant Nos.3 to 10 shall be referred to as "sub-tenants". The defendant No.1 - successor tenant was placed ex-parte before the Trial Court.
23
11. A suit in O.S. No.315/2005 was filed by the plaintiff for possession of the suit schedule premises and for mesne profits at the rate of Rs.1,000/- per day from the date of the suit till handing over of vacant possession of the suit schedule premises by defendant Nos.1 and 2 and for costs.
12. The landlord claimed that he was the owner of the suit premises having purchased it in terms of a sale deed bearing registration No.706/1972-73. The landlord had inducted the tenants on a monthly rent of Rs.100/- who had attorned the tenancy and were paying monthly rent by cheque. The landlord alleged that the tenants had put up bunk shops in the front of the club building (for short 'the building') and sub-let them for consideration to the sub-tenants who were running businesses of various kinds and were in possession of the same. The landlord issued a notice terminating the tenancy of the tenants which was duly served. However, the tenants did not comply and did not vacate the suit premises which
24
compelled the landlord to file a suit for recovery of possession.
13. The first tenant contested the suit by contending that the first tenant was an unregistered body of persons and had taken the premises on lease from Mr. Cyril Albuquerque. Therefore, it claimed that all the members of the unregistered body were tenants of the premises. The first tenant claimed that Mr. Cyril Albuquerque, the predecessor of the landlord had filed an eviction case in RCOP. No.75/1962 against the first tenant. The Trial Court allowed the petition but the District Court in Appeal HRCA No.8/1967 held that the members of the first tenant some of whom were arrayed as respondents in the said case were deemed to be tenants and therefore, the petition against the first tenant was not maintainable. Hence, the first tenant contended that the present suit against the successor tenant, which was later registered as a Society, was not maintainable and merely because the first tenant was subsequently registered under the
25
provisions of the Karnataka Societies Registration Act, 1960, (henceforth referred to as 'the Act of 1960') it cannot be considered as a "successor tenant". It also claimed that merely because the registered body paid rent on behalf of its members, that itself would not establish the relationship of landlord and tenant between the landlord (plaintiff in O.S. No.315/2005) and members of the first tenant. It denied that it had put up illegal bunk shops in front of the building and that it had sub-let them to the other sub-tenants. It alleged that these sub-tenants came into possession of the shops on their own and that it had no role to play in that and was not collecting any rent from the sub-tenants. The first tenant therefore prayed that the suit for ejectment be dismissed.
14. The sub-tenants claimed that they were in possession and enjoyment of their respective portions of the suit property openly, peacefully as of right without any interruption for more than 30 years and therefore, they had perfected their title over the respective portions of the
26
suit property by adverse possession. They claimed that the structures put up by them belonged to them and they had obtained electricity, telephone connection and were paying the respective charges for usage. They denied that they were sub-tenants in the premises.
15. The sub-tenants who had filed O.S. Nos.517/2006 and 539/2006 claimed that they had perfected their title to portions of the suit property by adverse possession which was contested by the landlord, who denied that they were in adverse possession.
16. Based on these contentions, the Trial Court framed the following issues:
IN O.S.NO.315/2005
1. Whether the plaintiff proves that the defendants 1 and 2 are monthly tenants of the plaint schedule premises on a monthly rent at the rate of Rs.100/- per month?
2. Whether the plaintiff proves that defendant Nos.3 to 10 are sub tenants of the plaint schedule property?
3. Whether the plaintiff proves that the quit notice dated: 23.3.2005 is valid in law?
27
4. Whether the suit of the plaintiff is hit by the provisions of the Karnataka Rent Act 1999?
5. Whether the defendant Nos.3 to 10 proves that they have perfected their right over the plaint schedule property by adverse possession?
6. Whether the suit of the plaintiff is bad for mis joinder and non joinder of parties?
7. Whether the plaintiff is entitled for mesne profits at the rate of Rs.1000/- per day from the date of filing of the suit till the delivery of vacant possession of the plaint schedule premises?
8. Whether the plaintiff is entitled for vacant possession of the plaint schedule premises from the defendants as prayed for?
9. What order or decree?
In O.S.No.517/2006:
1. Whether the plaintiff proves that he is the absolute owner in respect of plaint schedule property by way of adverse possession?
2. Whether the defendant No.1 proves that he is the owner of schedule property?
3. Whether the suit is bad for mis joinder and non- joinder of parties?
4. Whether the valuation arrived is proper and Court fee paid is sufficient?
5. Whether the plaintiff is entitled for the reliefs prayed for in the plaint?
6. What order or decree?
28
In O.S.NO.539/2006:
1. Whether the plaintiff proves that he is the absolute owner of the schedule property and he has perfected his right over the schedule property by way of adverse possession?
2. Whether the 1stdefendant proves that he is the landlord and defendant No.2 is the monthly tenant in respect of the suit schedule property on a monthly rental of Rs.100/-?
3. If so, whether the defendant No.1 proves that defendant No.2 has illegally for consideration sublet the schedule premises to the plaintiff and has parted with the possession of the bunk shop?
4. Whether the Court fee paid is incorrect?
5. Whether the plaintiff is entitled for declaration as prayed for?
6. What order or decree?
Addl Issues:
1. Whether the plaintiffs 1(A) & 1(B) prove that they are legal heirs of original plaintiff?
2. Whether P1(A) & P1(B) prove that they have been in possession of suit property?"
17. All the suits were clubbed and the suit in O.S. No.315/2005 filed by the landlord was treated as the lead suit. The landlord was examined as PW.1 and he marked documents as Exs.P1 to P40. The first tenant examined its Secretary as DW.1 while the sub-tenant / defendant No.5
29
(plaintiff in O.S. No.517/2006) was examined as DW.2; defendant No.4 was examined as DW.3; defendant No.9 (plaintiff in O.S. No.30/2007) was examined as DW.4; the worker of the defendant No.6 (plaintiff in O.S. No.539/2006) was examined as DW.5 and one of the legal representatives of the deceased defendant No.5, who was the plaintiff in O.S. No.517/2006, was examined as DW.6 and he marked documents as Exs.D1 to D15. The legal representative of the sub-tenant / plaintiff No.1(b) in O.S. No.539/2006 was examined as PW.1 and he marked documents as Exs.P1 to P3.
18. Based on the oral and documentary evidence, the Trial Court held that the landlord was the owner of the suit premises and the successor tenant was in occupation of a portion of the suit premises and that the sub-tenants were in occupation of bunk shops that were erected in front of the building facing Hampanakatta, Balmatta. The Trial Court held that the successor tenant was registered as a Club under the provisions of the Act of 1960 and
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therefore, was the tenant and there is no privity of contract between the landlord and the members of the successor tenant. It noticed that the first tenant was earlier an unregistered body of persons and therefore, the attempt made by the father of the landlord to evict the first tenant by filing a proceeding in the year 1962 was turned down by the District Court. It, however, held that since the first tenant was subsequently registered as a Society and continued to occupy the premises by paying rent, there existed the relationship of landlord and tenant. Exs.P19 to P23 were the letters of the successor tenant on its letter head enclosing cheques therewith towards payment of rent. Therefore, it held that though the first tenant was carrying two different names but yet both the first tenant and successor tenant were the same entity and both of them had acknowledged the ownership of the landlord. In so far as the sub-tenants are concerned, Exs.P15 to 18 were the statement of accounts and Exs.P24 to 26 were the photographs which indicated that the defendant No.3 was running a hotel and defendant Nos.4
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to 10 were in occupation of small shops in front of the building. The sub-tenant in O.S. No.539/2006 did not subject himself for cross-examination. The Trial Court held that unless the sub-tenants established the manner of they entering into possession of their respective shops, they were liable to be treated as sub-tenants and they had no vested right to claim the relief of declaration by adverse possession. Hence, the Trial Court by its common Judgment, decreed the suit in O.S. No.315/2005 and directed the tenants as well as the sub-tenants to quit and deliver vacant possession of the suit premises within three months from the date of the Judgment and decree of the Trial Court i.e., 07.01.2013.
19. Feeling aggrieved by the aforesaid Judgment and Decree in O.S. No.315/2005, the first tenant filed R.A. No.64/2013 while the sub-tenants filed R.A. Nos.22/2013, 33/2013, 25/2013, 66/2013 and 26/2013. The sub-tenants who had sought for declaration of their title filed R.A. No.23/2013 and R.A. No.27/2013.
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20. The First Appellate Court secured the records, heard the learned counsel for the parties and in terms of the impugned common Judgment, dismissed the appeals and confirmed the Judgment and Decree/s of the Trial Court.
21. Being aggrieved by the aforesaid, the tenants and sub-tenants have filed these appeals.
22. The learned counsel for the first tenant contended that the first tenant before its registration under the provisions of the Act of 1960 was known as
"Cosmopolitan Club" against whom the father of the landlord had filed an eviction petition in RCOP No.75/1962, which was initially allowed and the District Court in an appeal (HRC A No.8/1967) filed there against held that all the members of the "Cosmopolitan Club" were deemed to be tenants amongst whom only a few were arrayed as respondents in the said case and hence rejected the eviction petition.
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23. The learned counsel for the first tenant further submitted that after the registration, the body of persons is now called "Cosmopolitan Recreation Club" and the landlord had been receiving rent from the "Cosmopolitan Club". Therefore, he submitted that the eviction petition filed by the landlord is not maintainable without impleading those members who were deemed to be tenants.
24. The learned counsel for the landlord submitted that the witness for the first tenant, namely, DW.1, submitted that the "Cosmpolitan Club", which was an unregistered Club was registered as "Cosmopolitan Recreation Club". He also submitted that the statement of accounts attached to Ex.P15 showed that the successor tenant was paying rent through money order. He submitted that Ex.P16 was the minutes of a meeting held by Cosmopolitan Club to approve the statement of accounts for the year 2000 which was submitted in the name of "Cosmopolitan Recreation Club". The learned counsel invited the attention of this Court to Ex.P17, which
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is minutes of the general body meeting held by Cosmopolitan Club. The statement of account is submitted by the Cosmopolitan Recreation Club. He further invited the attention of the Court to Exs.P19 to P23, which indicated that rent was paid through cheques on the letter head belonging to Cosmopolitan Recreation Club. Therefore, he claimed that both these entities were one and the same and the unregistered body is now registered and recognized. The learned counsel submitted that there was no proof of either Cosmopolitan Club or its members paying any rent whatsoever to the landlord and therefore, their claim that the members of the unregistered body are deemed tenants is wholly unjustified. The learned counsel submitted that the successor tenant has unauthorizedly sub-let portions in front of the building to sub-tenants who have erected temporary bunk shops and therefore, their occupation was co-terminus with the termination of the relationship of landlord and tenants. The learned counsel submitted that there was no need to issue separate notices
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to sub-tenants to quit and deliver vacant possession of the suit premises.
25. The learned counsel for the landlord submitted that the successor tenant has now constructed a building of its own and that it would not face any hardship if it is directed to handover possession of the suit premises. The learned counsel submitted that the Trial Court had assessed mesne profits at the rate of Rs.1,000/- per day from the date of the suit till possession is delivered to the landlord which is reasonable as the tenants are collecting much more rent from the sub-tenants.
26. I have considered the submissions made by the learned counsel for the parties.
27. As rightly contended by the learned counsel for the landlord, the fact that "Cosmopolitan Recreation Club"
is registered with its registered office in the premises in question and the fact that the very same club was earlier operating under the name "Cosmopolitan Club" in the same premises makes it evident that both the entities are
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one and the same. The fact that the rents in respect of the premises are paid by Cosmopolitan Recreation Club and not the Cosmopolitan Club or its members makes the said conclusion strong. The voluminous documentary evidence in the form of letters, statement of accounts, minutes of annual general body meetings of Cosmopolitan Club leaves no doubt that both the said entities are the same. It is not the case of the first tenant that it is paying rent in the name of Cosmopolitan Club or its members are paying rent separately. Under the circumstances, the finding of the Trial Court and the First Appellate Court that there exists a relationship of landlord and tenant is based on intrinsic evidence that cannot be ignored. Therefore, this Court does not find it appropriate to interfere with the findings of fact recorded by the Trial Court and the First Appellate Court.
28. In so far as the claim of the sub-tenants that they are in adverse possession and therefore, they are entitled for declaration of their title is liable to be rejected
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as it is found from the photographs placed on record that these sub-tenants are perched in small shops within the sital area but outside the premises. These bunk shops are temporary settlements and it is impossible for any prudent person to hold that these bunk shops are not part of the suit premises. It is equally improbable that these bunk shops could have been erected without the consent and concurrence of the tenants.
29. In that view of the matter, the claim of the sub-tenants that they are in occupation of portions of the suit schedule premises as unauthorized occupants is unacceptable. The sub-tenants have not established by acceptable evidence that their possession was unlawful, hostile and continuous for a period of 12 years and thus, both the Trial Court and the First Appellate Court were justified in dismissing the suits filed by the sub-tenants and also directing their eviction from the suit premises. Hence, these Appeals lack merit and are therefore, dismissed.
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30. However, having regard to the fact that the tenants (Cosmopolitan Club and Cosmopolitan Recreation Club) have been in occupation of the suit premises where they are running a recreation club, this Court considers it appropriate to grant the tenants and sub-tenants time of 10 months from today to quit and deliver vacant possession of the suit schedule premises to the landlord, subject however to the condition that the tenants shall pay the landlord mesne profits at the rate of Rs.30,000/- (Rupees Thirty Thousand) per month from the date of this Judgment till the expiry of ten months and clear all arrears of mesne profits as ordered by the Trial Court within a period of three months, if not already paid. It is made clear that in the event of any single default in the payment of the rent at the rate of Rs.30,000/- per month, the landlord shall be entitled to execute the Judgment and Decree/s of the Trial Court.
31. The tenants shall also undertake that they will not sub-let or underlet any portion of the suit schedule
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premises to any person whomsoever. An affidavit to the above effect shall be filed within two weeks from today. If the affidavit is not filed, then the tenants shall not be entitled to the benefit of this Judgment granting time to vacate. The sub-tenants are bound to quit and deliver the vacant possession of the bunk shops in their occupation to the landlord.
In view of the disposal of these appeals, all the pending interlocutory applications stand disposed off.
Sd/-
JUDGE
sma
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