IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated: This the 301%: day of October 20'Q.9"f .
BEFORE
THE HONBLE MR.JUs'r1cEV..gIAGA5NNA5Ifi~1A§Jf D'
R.S.A.N0. 1014/200.1 «
BETWEEN: 1' V"
PHONNAMMA, .
w/0 LATE CHAND"U M
AGED 72 YEARS, ' "
BOLAR,MANGALOR"1~3.. "
.. ...APPELLAN'I'
[By Sri s ss_aPA"1'I3jY.<-A1)v.._3V A
AND':
1 B..JAGA]f'lNAT';'H,
S/O. _B vsANTH;AP§f_A, ADULT,
' » MANGALORE ROAD.
V WITAL 'Ims;3,A.v1LLAGE, VITTAL,
'BU'NirwAL TALUK, D.K.
* ILRESHNAPPA,
S/.0 AMMU POOJARY, ADULT,
.HQ'i?EL VIJAYA, MANGALORE ROAD,
VYITAL KASBA VILLAGE, VITTAL.
" EANTWAL TALUK, D.K.
... RESPONDENTS
— {B5} Sri SANATH KUMAR SHETTY K, ADV. FOR R1.)
THIS RSA FILED U/S100 CFC AGAKNST THE
JUDGMENT AND DECREE DATED 31.7.2001 PASSED IN
R.A.NO.30/2000 ON THE FILE OF THE 1 ADDL. CIVIL
ix)
JUDGE {SR.DN.} 8: C-.JlVI., MANGALORE,
DISMISSENG THE APPEAL AND CONEIRMINQVV
JUDGMENT AND DECREE DATED 18.12.199S§_:”PAS_$E’*Cr;_.v__2_
IN O.S.N0.102/1994 ON THE FILE OF
JUDGE (JR.DN.), BANTWAL.
THIS APPEAL coM1Ns_4oN”EoR HEARING”
DAY, THE COURT DELIVERED:T}iE EoL,1,owm”:+«:V”” ‘
This seeond before the
trial eo111:_:t_. for eviction of
the Efiislmissed by the trial
Court.’ on -that the appellant had no
authority. she is a stranger and also
groun’d«.that the quit notice was not valid in
V ~lav.v_.*v.._:Tl1e:”‘lower appellate court also confirmed the
order of dismissal of the suit, but on a
different ground viz., the quit notice was not in
. iaeieordanee with law. Thus, the concurrent findings
of the courts below have formed the basis for this
second appeal by the plaintiff.
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2. The appellant filed the suit seeking
possession of the suit schedule property on”-.__the
ground that the suit property belonged.,__’l:fO”filter.
husband viz., late Chandu Shetty and
death of Chandu Shetty andilal lsuitv
possession by the wife, and lllchildrenfloflpl “C’ha’r.1ldiil’~_
Shetty, a compromise Wasl”i’eliitered the
15′ defendant execujtod onf5l.8l.ll98l in
favour of legal Shetty Viz.,
in the son Devadasa
Shetty was let out on a monthly
rent rent bond required the
le«sCsee’~ not ‘tolmsulo let the suit premises. This
, G;’cQ:1c1ition:l”was breached by the is defendant by
if * defendant into the premises. This led
theappellarlt to order quit notice to the defendants.
3. It was also contended in the suit itself by
the appellant that a partition suit was also filed in
O.S.No.111/89 between the legal representatives of
Chandu Shetty and in the said suit the appellant’s
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eldest son Devadasa Shetty has set up a Will alleging
that late Chandu Shetty had bequeathed V.-~-suit
property to Prafulla, Geetha, Pushpa and
stating all these factors, the appellant it
decree being passed in her”favour7,di.re.etingp”the
respondents to hand over vacant”possessAion ‘of’=,thel”
suit premises.
4. The defendants. eonte-_ste~dgthe suit by
taking up thestand defective
in nature. oflifliandu Shetty have no
rightlover the and the plaintiff has no
right whlatsoever to llehange the nature of the suit
‘l and lslh'”e'”bVeing a stranger even to the rent
no locus standi to file the suit.
‘laearned trial judge framed as many as
four i,Vissues and six additional issues and after
‘appreciating the evidence on record let in by the
parties, held that the quit notice issued by the
appellant was defective in nature and also held that
the appellant has no authority to file the suit she
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being a stranger to the rent bond transaction. The
other issues were also answered in the affirmative
except additional issue No.1 which concerns the
description of the suit schedule property. The
the plaintiff was dismissed. The lower appel-late: *
concurred with the trial co1.1rt-in .l.l_the.,, all
ultimate result of the appeal
that the appeal is liabcyg-..,._y to babe by l’ l
confirming the orde1′.of th.e”‘t1’ia’l court. lllfioweyer. the
lower appellate court if foulnd’ one defect in the
quit notice being defective
in naturie with the requirement of
lay as far.’ as the period of notice is concerned.
»V;Followingyligl’dismissal of the appeal by the lower
ll the plaintiff has come up in this
selcorid’ appeal.
6. It has to be stated at this juncture that
fthis court on an earlier occasion disposed of this
appeal itself on 19.77.2007 and the learned counsel
for the respondents could not be heard in the matter
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as the counsel remained absent. The court..g'”‘algso
framed substantial question of law involving.
question of the quit notice being valid.in:’lawiVi_§.f’4_nst
and by holding that the quit notice:
with law, this court had.r’allowe’d_V”t’he of
plaintiff and granted ditto the
respondents to vacate and over vacant
possession of thevy.su.it’V. scbediilevp”‘p:i*o’perty to the
lea_”r’n’efd connsel Sri. Sanath
Kumar ‘ respondents filed the
appplicatio’n_:’seekin”g review of the order passed as
A af-ore»s”aid..pand “the main contention advanced in
review petition was that the partition
suit by the appellant itself ended in a decree
pp beingwtpassed in favour of the defendants and the
if appeal preferred by the appellant was also dismissed
and in the process, the trial court as well as this
court accepted the defendants contention in the
partition suit as regards the Will being executed by
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Chandu Shetty. The other L.Rs preferred an fS;L.P
before the Apex Court and the same
Citing all these grounds, learned co1;n_’sel’t.4_the-«l
course of the argument on the j;r”eView-._ ‘petition f
therefore sought for rehearing ofvthe
court had not heard the at the
first instance and is now
sought to be urgtd the matter.
This court./it counsel for the
counsel for the
,gtai1}§-Wendel the review petition and
appeal by recalling the judgment
is how this second appeal is
» ‘now’.beirig’i1eard.
1 gifhough this court had framed substantial
of law concerning the Validity of the quit
it notice, in the light of the ground put forward by the
Qreview petitioner in the review petition, one more
substantial questiongpf law arises for consideration
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and as such, the points that required to be ansvtrered
by this court in this second appeal are as undcrtt
1. Whether the appellant is a .
suit in View of the deeree_bei’ng a, it
partition suit?
2. Whether the below an ” V
error of lavwrin linterpret’ingilv’the quit
notice dated a 1′ . –l33x.D 13.
9. Aslfar as.”t’h’e’ of law raised
for oonsideration<ar'e._leoneerned, learned Counsel Sri.
Sripathjg 'fort' ~ appellant submitted that the
appellant one of the co–owners of the suit
a V:V'proprertygaiong with other L.Rs of Chandu Shetty, is
'- j.ustiiied."p:–.in::ulelairning suit for possession and the
consenthof the other co–owr1ers is deemed to be there
it and as such, the question of the appellant being a
stranger to the suit does not arise. Moreover, the
tenants right to question the title of the landlord is a
very limited one and therefore when the appellant
and other L.Rs of Chandu Shetty are the co~owr1ers of
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the suit property, it is not for the respondents
tenants to question the said status of the co~own_ers
and a co–owner is as much an owner of thede-n’;ti_re.
property as any sole owner and co~owners’iiip invoiiiesf
the undivided integrity of whatfisw ometi. .g
not withstanding the decree ldbeiiig pass-‘ed
partition suit, as the 1riatter’r«r:.i:s’sti1lVh pending the
Apex Court, there matter
and as such,p the a co–owner
cannot be therefore the
in recording a finding that
the appellant” to the suit. The
s13..iornissionV” sought to be supported by
r decision of the Apex Court reported in
‘– 6026 and the relevant paragraphs
referred to were 45 to 49. As such, the
it é:1uestion of appellant being a stranger does not arise
hand as far as the quit notice is concerned,
submission made is that there is no defect in the quit
notice as the defendants i.e. the tenants were given
sufficient time before filing of the suit to hand over
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the vacant possession to the appellant and as such,
the question of the quit notice being not in
accordance with law does not arise.
10. On the other hand, learned
Sariath Kumar Shetty for the :respond§ent.s” it
that it is not in dispute that the Zp-artition.yAsu,it«.
in a decree being passed ‘in”‘iTavour’–of persons to V
whom suit propert},=”h_as beer1lli.:’_i4:-edit’;-iieathelci'”under the
Will executed by latelclhandlul She’tty,1la’_1.Secondly, the
said’tiind’iin.g_ofl:the cotirtdvvas called in question
before. this appeal and the said appeal
was, disniissed”.’–co’nfirrning the trial court’s finding.
A adijnittingmthat against the dismissal of the
ihgelaggrieved persons approached the Apex
AC3..ourt~ bifipreferring the S.L.P and the matter is still
AA pending, yet it is argued that the fact that the decree
it been passed and the said decree having not been
set aside or modified by the Apex Court as on date, it
goes without saying that the decree is operative and
therefore the appellant herein cannot have any legal
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right to contend that she is the co–owner of the suit
property and therefore the trial court was justified in
recording affirmative finding in favour of n the
defendants. Learned counsel in support “~«._tii.e
aforesaid submission placed reliance on the?.dec’ision’s-.– ~
reported in AIR 1958 S.C.86. AER .198 ll
comments by learned author on
and Usage at para.476 and..@2£Q_O4(l)
ll. Relying ,–on la:wl4″‘-laid l(Zll'()’»V3.’1-‘V3ifl the
aforesaid’ ‘lelarnedl counsel therefore argued
that in the neither can it be said that
thg-_ appelI’ant’is* a”col-“owner nor is it a case of other
ll A clalioxamersp givingmlconsent to the appellant. As such,
the was justified in dismissing the suit of
the appell’.ant.
it As far as the first point of law raised for
it f’c.o.risideration is concerned, in the light of the
aforesaid submissions put forward and the decisions
referred to by the learned counsel for the parties , the
question to be considered is, whether the court
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beilow was justified in holding that the appeiiant is a
stranger to the suit property in View of the partition
suit ending in a decree against the appeilantipppyyi ,,
13. it is not in dispute between
that a partition suit was fiiediind O’.S.iNo.~1
both parties do not dispute theédfurther factor
being passed in the said Will
said to have been eireeuteidd éhetty in
favour of the ppers0nsy_toV.ewh_orn property has
said””order of the trial Court
was also court by dismissing the
appeal prefevrred the trial court’s findings. It
A i”s..Ca1is’e an adrriittevd fact that the S.L.P is pending
Supreme Court and the matter has to be
Ad-isposeri’ In other Words, the decree passed by the
up triai court has not been set aside or modified as on
it not withstanding filing of an S.L.P by the
aggrieved persons.
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14». The Apex Court in the case reported in
AIR 1958 S.C. 86 has held that there is nothing in
the Indian Law to warrant the suggestion
decree or order of the court or tribunal V’
instance becomes final only on~’the’«terinination offallllg
proceedings by way of appeal
the appeal or revision may”pf1:itytheV’ decreej”orV”order in
jeopardy but until it or Aniodified, it
remains effective.
J. in an3othe1’» decision reported in AIR 1981
S.C.ll’l.13«.itV by this court that, where
an eviction s_Vuit.’Vvas. filed by one of the co~owners, on
of lvbvoriafide requirement and the appeal
‘a.gajnst~–.,’the’–decree for eviction was pending and in
tlie In~eari’while the plaintiff co-owner loses the
ppinteresti’ in the property as a result of decree in
Vpartjition suit. the Appellate Court can take notice of
it .._..the subsequent event and can mould the relief
accordingly.
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16. In another decision reported in 2004(1)
Supreme 350 it has been held by the Apex Court that
Where one co–owner files a suit for eviction against
the tenant, he does it on his own behalf in
right and as an agent of the other ~
consent of other co~owners isAA»wassui’ned”‘*a,s ‘taker:-._V it
unless it is shown that the other ‘-fl:f’1}iQ
not agreeable to eject the-.t:enantA’Vand’ filed ”
inspite of their disag.reeme’ntf_”One. co–oWner7 cannot
withdraw his Consent”mi~d?3vay__’lthe,. “suit so as to
prejudice V-3t.h’er_ c¢}’ox»mer.
i’?.4__’ ” In the aforesaid law laid down
bg,*.ithe~ Ape}; ‘Court, if We examine the case on hand,
» Llfi3’_S1 .iof.pall:fthe partition suit has ended in a decree
H ” upholding the Will said to have been
erteedtedl by late Chandu Shetty and the suit property
Apw’a.s bequeathed in favour of four persons viz.,
Vfi-“rafulia, Geetha, Pushpa and Shobha. The appeal
filed against the order of the trial court was also
allowed confirming the trial courts order and S.L.P is
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pending against the Appellate Courts judgment in
the Apex Court. The appellant herein therefore
cannot be said to be a co–owner of the
when the decree drawn at the first
partition suit itself has not beenlset aside;
by the Apex Court as, of ‘l’he_refore,n
appellant cannot be said to’V”be'”lone of the aeVo–o’Wners of
the suit property :li’gl_1tdp.Vl'”o.f the decisions
rendered in the partition court in the
appeal. the:rnatter’4is:vstill–pending before the
Apeig not attained its finality
nevertheless as stands as on date, the
a.p§pell’ar1t thereforegicannot contend that she is one of
» jet-he of the suit property.
Secondly, the rent bond was executed
betweenthe 18′ defendant and Chandu Shetty, son of
it it the fappellant. Under these circumstances,
ll”-particularly, in the light of the decisions referred to
above by the learned counsel for the respondents, I
am of the View that the trial court was justified in
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holding that the appellant has no locus standi to
institute the suit against the defendants. Accordingly
I answer this point for consideration.
19. Since the appellant has no
file the suit itself, the question of ._c’opnside1t*ing’the”:
validity or otherwise of the quit notice doefsnot
Although there is force submission hiade by
the learned counselffor lgtappeiliant that “the quit
notice is in accordance ltavi’~-aritijvthe defendants
were””giv’enaf, sufficient” ti1n_e””‘to deliver the vacant
possession of ‘the_l”su__lit…’property, yet in View of the
finding recorded on the 15* point for consideration, it
. is— of no significtalnce as to whether the quit notice was
” y.a1id.fm: rim,
,__~2’0..i in the light of the aforesaid reasoning, the
_ oourts” below were justified in dismissing the suit of
if plaintiff and consequently this appeal has to fail
and it is dismissed. It is also made clear that as the
matter is pending before the Apex Court, the
observations made herein above shall not come in the
way of the appeliant in pursuing the remedies
to her in law in the event of the Apex
the appeiiant also being entitled to a share _
property.
e_tJUDGE
Dvr: