@JUDGMENTTAG-ORDER
S.N. Satyanarayana, J.@mdash1. Though this matter is listed for admission, with the consent of the parties, lower Court records are secured and the matter is heard for final disposal.
2. The plaintiff in S.C. No. 21/2012 on the file of II Addl. Senior Civil Judge, Mangaluru, Dakshina Kannada, has come up in this revision impugning the judgment and decree dated 24.09.2013.
3. Admittedly, respondent Nos. 1 to 5 herein are the widow and children of one Narayana C.V., who was inducted as tenant in respect of plaint ''A'' schedule property i.e., commercial premises bearing No. 9-7-416 (said to be comprised in Sy. No. 256/1A) situate at Mukhyaprana temple cross road, kasba bazar village, Mangaluru Taluk and District. At the time when Narayana C.V. was inducted as tenant into the plaint ''A'' schedule property (hereinafter referred to as the ''suit property''), it was under the ownership of one Smt. Sathyabhama Udupa, which fact is not in dispute. It is stated that Narayana C.V., the original tenant, died in the year 1989 and thereafter, his widow and children, who are defendants in the suit, are said to be continuing in possession of the suit property. It is contended by defendants that rents were paid to Smt. Sathyabama Udupa during her lifetime and subsequent to her death, defendant Nos. 2 and 3 have entered into lease agreement with the mother of the plaintiff, Smt. Indira Udupa, and they have been paying rent to her.
4. It is necessary to bring on record certain facts, which though not extraneous, do not form part of these proceedings. However, the said facts have a bearing on the eviction suit filed in S.C. No. 21/2012 with reference to two Wills said to have been executed by the erstwhile owner of the suit property, Smt. Sathyabhama Udupa, who died on 13.10.2000. She is said to have executed two Wills, one on 04.02.1983 and another on 08.05.1993. The beneficiary under the Will dated 08.05.1993 is one Smt. Indira Udupa, who is none other than the mother of the revision petitioner -Gururaj Y.S. and daughter of the original owner, Smt. Sathyabhama Udupa. The Will dated 04.02.1983 is executed by Smt. Sathyabhama Udupa in favour of the present revision petitioner, Sri Gururaj Y.S. The records would also disclose that Smt. Indira Udupa, relying upon the Will dated 08.05.1993, had executed a settlement deed on 04.02.2004 settling the suit property in favour of Smt. M.S. Kanthi, who is none other than the daughter of Smt. Indira Udupa.
5. In this background, it is stated that an original suit in O.S. No. 422/2005 was filed by the petitioner herein against his mother, Smt. Indira Udupa and his sister, Smt. M.S. Kanthi, seeking declaration that: the Will dated 04.02.1983 is the last Will and testament of late Smt. Sathyabhama Udupa; the alleged Will/codicil dated 08.05.1993 is a forged and fraudulent document, and settlement deed dated 04.02.2004 is void and illegal and the same were not binding on the plaintiff - petitioner herein. The schedule property of the suit in O.S. No. 422/2005 included the suit property bearing No. 9-7-416 comprised in Sy. No. 256/1A.
6. It is seen that the said suit in O.S. No. 422/2005 was contested by defendants therein and the same was decreed in favour of the plaintiff - petitioner herein by judgment and decree dated 31.08.2012. The said judgment, not having been challenged by defendants in the said suit, has reached finality in the aforesaid matter. Thereby, it is seen that by virtue of the judgment and decree passed in O.S. No. 422/2005, the petitioner herein has become the absolute owner of suit property in S.C. No. 21/2012. Pursuant to the said judgment and decree, the petitioner herein has got issued legal notice to defendants - respondents herein on 17.09.2012 bringing to their notice the said judgment and decree dated 31.08.2012 and intimating them that he has given up his claim for rents that were paid to his mother, Smt. Indira Udupa, till 31.08.2012 and asking them not to pay any rent to her for the period ensuing 01.09.2012 while terminating their tenancy in respect of the suit property. The said notice was received by defendant No. 3, but was unclaimed by defendant Nos. 1, 2, 4 and 5. However, defendant Nos. 2 and 3 have got issued reply dated 20.10.2012 as per Ex. D1 refusing to accept the petitioner herein as the owner of the suit property and claiming that they are tenants under Smt. Indira Udupa and they have been paying rents to her.
7. Subsequently, suit for eviction and recovery of mesne profits was filed by the petitioner herein, in S.C. No. 21/2012 on the ground that he is the absolute owner of the suit property in view of the registered Will dated 04.02.1983 executed by his grandmother, Smt. Satyabhama Udupa during her lifetime bequeathing the suit property in his favour, which has been declared as her last Will and testament by judgment and decree dated 31.08.2012 passed in O.S. No. 422/2005 and defendants were not justified in paying rent to his mother, Smt. Indira Udupa. It is the case of the plaintiff that as he required the suit property for his own use and occupation, pursuant to the said judgment and decree dated 31.08.2012, he got issued legal notice dated 17.09.2012 terminating the tenancy of defendants, which has been received by defendant No. 3 and unclaimed by other defendants. Since defendants failed to vacate the suit property after expiry of 15 days from the date of service of the said notice, he has filed the suit for a direction to defendants: to hand over vacant possession of the suit property to the plaintiff; to pay to the plaintiff the sum mentioned in plaint ''B'' schedule annexed to the plaint and to pay future mesne profits at the rate of Rs. 12,000/- per month from the date of suit till actual delivery of the suit property to the plaintiff.
8. Defendant Nos. 1 to 3 and 5 filed written statement, which was adopted by defendant No. 4, reiterating the stand taken by them in the reply dated 20.10.2012 to the legal notice dated 17.09.2012. They contended inter alia that there was no relationship of landlord and tenant between plaintiff and defendants. Defendant Nos. 2 and 3 are tenants under Smt. Indira Udupa, the mother of the plaintiff and they have been paying rents to her. They have referred to the eviction petition filed by Smt. Sathyabhama Udupa during her lifetime against them in HRC No. 18/1999 on the file of the Civil Judge (Jr. Dn.), Mangalore. Subsequent to death of Smt. Sathyabhama Udupa, Smt. Indira Udupa, who got impleaded herself in the said proceedings, has withdrawn the said eviction petition. Subsequently, she has inducted defendant Nos. 2 and 3 as tenants in respect of the suit property by executing a fresh lease agreement. Hence, the question of termination of tenancy of defendants by plaintiff did not arise and they sought for dismissal of the suit.
9. The said eviction suit was taken up for recording of evidence before the Court below, wherein plaintiff -petitioner herein has examined himself as PW.1 and relied upon the judgment and decree dated 31.08.2012 passed in O.S. No. 422/2005 at Ex. P8 and P9 as the basis to demonstrate his title to the suit and also the legal notice dated 17.09.2012, which is at Ex. P1, issued to defendants -respondents herein pursuant to the said judgment as valid notice for termination of tenancy in the said proceedings. On the other hand, defendants relied upon reply dated 20.10.2012 as per Ex. D1 given by defendant Nos. 2 and 3 to the legal notice dated 17.09.2012 and a copy of earlier HRC proceedings in HRC No. 18/1999 (Ex. D4), which was initiated by petitioner''s grandmother, Smt. Sathyabhama Udupa, and which was subsequently withdrawn by Smt. Indira Udupa, the mother of petitioner herein.
10. The Court below on appreciation of pleadings and evidence available on record, proceeded to frame in all five points for determination as under:
"1. Whether plaintiff proves that the defendants are tenants under the plaintiff on monthly rent of Rs. 800/- as on the date of filing of the suit?
2. Whether plaintiff proves that after disposal of suit in O.S. No. 422/2005 the tenancy of the defendants was properly attorned by Smt. Indira Udupa in favour of the plaintiff ?
3. Whether plaintiff proves that the tenancy of the defendants was properly terminated as contemplated under law?
4. Whether the plaintiff proves that he is entitled to recover the mesne profits from the defendants as claimed in the suit?
5. Whether the plaintiff is entitled for the relief as claimed in the suit?
6. What Order or Decree ?"
The trial Court has answered point Nos. 1 to 5 in the negative and point No. 6 as per the final order and accordingly, dismissed the suit. Being aggrieved by the same, plaintiff in S.C. No. 21/2002 has come up in this appeal.
11. On going through the judgment impugned, it is clearly seen that the Court below has misplaced its appreciation with reference to the ownership of the petitioner herein to the suit property. Though there is a judgment and decree passed by the I Addl. Civil Judge & JMFC, in O.S. No. 422/2005 dated 31.08.2012 with reference to the title of the petitioner to the suit property, the same is not properly appreciated by the Court below. So far as the ownership of the suit property is concerned, admittedly the same was the absolute property of petitioner''s grandmother, Smt. Sathyabhama Udupa, who inducted husband of first respondent herein, Sri Narayana C.V., as tenant. It is not in dispute that by virtue of the said judgment and decree dated 31.08.2012, petitioner has become the absolute owner of the suit property. Therefore, whether legal representatives of Narayana C.V. would accept the ownership of the petitioner herein or otherwise, he is landlord of the suit property by virtue of the judgment and decree dated 31.08.2012 passed in O.S. No. 422/2005. In pursuance of the said judgment and decree, petitioner herein has got issued legal notice to respondents herein on 17.09.2012, which is also not in dispute. Though the said legal notice is issued calling upon them to vacate and deliver vacant possession of the suit property, respondents have refused to accept the judgment and decree passed in O.S. No. 422/2005 and tried to assert that the owner of the suit property is Smt. Indira Udupa and not the petitioner herein only with an intention to protract the proceedings and to hang on to the suit property by raising untenable objection with reference to title of the petitioner herein as also their tenancy rights. It is seen that defendants - respondents herein to show their bona fides, have neither deposited the rent before the Court below nor taken any step in the manner known to law under the Karnataka Rent Act. In the nutshell, by taking advantage of the situation, they are trying to highlight the differences between the mother - Smt. Indira Udupa and her son - Y.S. Gururaj as ruse to deny the ownership of the suit property to the petitioner herein and also continue to be in possession of the same, without paying any rent. Unfortunately, the Court below has not looked into the same and it is misled to believe that there is no attornment of tenancy from defendants -respondents herein in favour of the plaintiff - petitioner herein and that there is no termination of tenancy despite the fact that legal notice was issued by plaintiff on 17.09.2012, which is duly replied by defendant Nos. 2 and 3 vide Ex. D1 dated 20.10.2012. In that view of the matter, the judgment and decree impugned is required to be set aside.
12. Accordingly, the petition is allowed. The judgment and decree passed in S.C. No. 21/2012 on the file of II Addl. Senior Civil Judge, Mangaluru, Dakshina Kannada, dated 24.09.2013 is set aside. Consequently, the suit of the plaintiff in S.C. No. 21/2012 is decreed by passing a judgment and decree directing respondents herein - defendants to vacate and handover vacant possession of the suit property to the plaintiff - petitioner herein within 15 days from this day. So far as mesne profits are concerned, the petitioner is at liberty to initiate proceedings under Order XX of the Code of Civil Procedure for adjudication of mesne profits payable by respondents for being in occupation of the suit property from the date of filing of the suit in S.C. No. 21/2012 till the date of their eviction pursuant to this order.
In fact, this Court feel that in the instant case, fifteen days time granted to respondents to vacate the suit property is more than enough for the reason that by taking advantage of the fight between the revision petitioner and his mother, they have continued to be in possession of the suit property without paying any rent for more than four years. Therefore, if more than 15 days time is granted to respondents, the same would only encourage their unscrupulous attitude, which cannot be entertained.
