the III Addl. Civil Judge (JD), Belgaurn, decreeing the suit filed for declaration and injunction. This appeal coming on for admission, this delivered the following: JUDGMENT
This second appeal is filed by
trial court in ().S.No.5l2/2005 being agigrievcd byitiiev«suit.3fileid
by the respondents–plaintiffs beinligfld.:ec*reed trial court
and the appeal preferrecli’by’i_pth_e herein being
dismissed by the lower:.a–ppellate_i:;ourtiiihffhus concurrent
findings by the question.
2. to the suit being filed
by the responclents:p1iai’12it_iffsl:’were that, the plaintiffs were the
owner pair. pppossessionf of” the suit schedule property which
.comproini’:~ies bf &”A’ schedule property and ‘B’ schedule property
lareiiiopeiiispaces and the appellant herein requested the
plainti,’ffs to him to use the ‘B’ schedule property for his
ii””<«.__lbtisiness therefore the plaintiffs put up a shed in the open
pspa'ee_ ri'.e., 'B' schedule property for the business of the
…_l:;g'ppiellant herein and the rent which was 123.80 per month was
(iv
,1
J
increased from time to time and it stood at Rs.l50 for the 'A
schedule property and Rs.100 for 'B' schedule property as on
December, 1997. It was the case of the plaintiffs pthaththe
appellant herein being the defendant in the trial court' _
paying the rents regularly and apart from_–tl'iat.:~the-iiplaint
schedule property developed cracks on the..northe.rn
was unfit for human habitatio.n,_and ithveirefore,~'thueiplairgtiiffs
issued notice to the defendant toiiiquit_theiprernisesigbut this
made the defendant to 0.S.l\iio.ii7'71 / 1998
seeking the relief of injun_ctio.n dispossessed
without having? re?:oursé–_ to ycourse: of law. There
afterwards, not pay the rents properly but
the wall collapsed and then the appellant herein
with the help" police! officials and other officials of the
iicorpoiration plannediitomililegally construct a house in the suit
;5r.oi:«:riy~ = started putting up the construction on
O2.(i)9,_2i0O5. .ivvithiout giving notice to the plaintiffs. The
l"~..«.._plaintiffs" requested the police to stop the construction which
met by the police by taking any action against the
.___ii:appi}cllant herein. Hence, the plaintiffs were constrained to file
}»
4,.
the suit for relief of permanent injunction as well as mandatory
injunction against the defendant.
3. The said contentions of the plaintiffs was ~
appellant herein and the appellant also denie_-;i”the:’ren’tV
was mentioned in the plaint and the defendaiit ‘also
admit he being a defaulter in payment of. rent also the
defendant took up the stand that he-_o_nly» effe’cted lsonéie repairs
to the wall and did not taik~e..i;;p any ;_coins.t’r’ucti_pn as such.
4. The pleadings of the parties-.4lead.._th’etrail court to frame
certain issues’ii\;§4″l1iVcliv’are ‘~ni.en~tioii._ed_: in paragraph 12 of the
judgrnenat of thefiowergiappellate court and after appreciating
the evidence on record’the*~._tria.l”‘court was of the View that the
plaintiffshad le’st_ab’li.shed- their case against the defendant and
i.c’onsequer1″t:1y”suit wasmdecreed and the appellant was directed
to i’epIrio=.r.€”4tlr1e liunauthorised construction put up by him over
theiisuit property and if he failed to do so, the
‘plaintiffs jxiere given liberty to get the said construction
“r7é;m_y?éa by following due process of law and the defendant was
3»
‘ i»
restrained from putting up any construction over the ‘A’
schedule property and ‘B’ schedule property.
5. Appeal preferred by the defendant was dismissed._b3ti_lthe
lower appellate court and hence this second .
6. I have heard Sri.G.B.Shastry, learned l.for_l_}th’e_ ix
appellant and Sri.Rarnesh N. Misaleflealrneld
respondent–plaintiffs and peruslelctlfthe jud’gme.ntsi..vof°’§thiecourts * it
below. Unless any substantial quesltionof law involved, this
Court cannot interfere with vtilconcputf.r€7nit”–fi11dings of fact of the
courts below and this is the Apex Court in
several in-the case of NARAYANAN
RAJENDEAH ‘AND LEKSHMY SAROJINI AND
0’I’I*IER.S., (2O693_l5’VSC(ii”. Therefore, the appellant will
have satisfyrp that itheiisubstantial question of law arises in
3118″ cease l ~
V .7. il”I’r1 vthiisvlcontext, learned counsel for the appellant
“i’Ai”‘r.eferring to the judgments of the courts below contended that
below failed to consider provisions of Section 27, 28
T and 31 of Karnataka Rent Act as well as Section 47 to 49 of the
said Act and it is his contention that the courts below erred in
recording a finding that the appellant has put up Va-gnew
construction in place of old construction without”:l:so.epl:ing
permission of the plaintiffs and the courts below–alsQ i’
not taking into account the ClOC1.1v1′-I’1′(‘3’1″1’t-S’
appellant which documents wouldll’tgoilpftov
appellant only effected repairs
submission put forward is, that t:he:lc’o14rt–._,beloW” ‘couldfinot have
granted mandatory injunction note of the
decision rendered’_inV__ filed by the
defendant. tlieaboire contentions, learned counsel
also referred to «)i.’_of theépecific Relief Act, 1961 to
contend that no injunction’ have been granted by the trial
court. Learned counsel also referred to Section 108 (e) of the
Transfer or Propertyiiiifilct to contend that if there is any
axzyjpart of the property, the lease shall become
void the .option of the lessee. Therefore, learned counsel
– sought for interference by this Court in this second appeal.
the other hand, learned counsel for the plaintiffs–
respondents supported the concurrent findings of facts of the
3:?
courts below and submitted that the courts below ._ were
justified in granting the relief sought for by the plaintiffs.
regard to the fact that the appellant did
permission from the respondents–p1aintViffs for
new construction over the earlier CO3:lStITE1-C.t:l.Orl..Wl71lC}’1’l’i_vE3_SiV:’:lf’1′
very bad shape. Apart from th;”s,wi__t is also sub1r’iitt.ed._Vtha_t the
appellant has failed to pay the the suit
premises and the any rents till now
excepting the rentse_whichA…w:ere. of the interim
order passed by
9. Apart from’:»-tine a1:.oveli’si.ubnri.ission, learned counsel also
referred the _:the courts below to contend that
when the a”p.peI1anlt_ had’ up a new construction, the
..questi=ofr1 of the plaintiffs seeking eviction will not arise because
‘l”‘WhC:l1~»l;hC,vi3I’CETllS3S have been completely destroyed by the act
of is termination of the tenancy. In support
of the above submission, learned counsel places reliance on the
“iv.44’pdec’isions bf the Apex Court in the case of VANNATTANKANDY
l.l_1:B’r?AYr’ vs. KUNHABDULLA HAJEE (2000 (3) SUPREME
from this the appellant has not taken any permission to put up
the new construction and in the face of the said admission
made by the appellant and the evidence of the
indicating that the suit property was originally;i:ons’tr”uCited,_T’ »
with mud walls and black tiles, the evidence or1″re’cord’letvin by
the parties ultimately lead to the aforesaidfiind’ingre’cof-ded
the courts below.
11. Under the above circumstainc,e’s,.yV_VI see errior being
committed by the eourts;—-._bf€1oAw’iV: in thecase of the
plaintiffs that the appellant.. put up new
construction by as put up the roof
over theifixitatiiaé and roof and as such the
question of th_e”l3ndings..o’f,the trial court on all issues framed
.._by it the confirrnatiofn of the same by the lower appellate
V_court..beirigerroneous and contrary to the evidence on record
does not arise * ‘ ‘ it
As” fair as the provisions of the law referred by the
a.ppellai:t’s counsel are concerned, I am of the view that there
no application to the case on hand and both the courts
3»
psi
10
below have rejected the contentions put forth in this regard by
the appellant’s counsel and as such I do not see any substance
in the contentions put forth concerning application of”Se’e.tio.n
41 of the Specific Relief Act or Section 108 (e) of ‘
Property Act. ._
13. For the above reasons,_.I_ holdpithat no].su’bstantialfK
question of law arises for consideration ii1__this5 appeal and
consequently appeal stands~..disnfii’ssedi;
14. At this juncture, 1earned._co.un:sel.*’for’ithefappellant seeks
one year’s time to o”t_Ier§th’e Vacantiw possession of the suit
schedu1e;_iv’A’ theflplaintiffs for which learned
counsel for uthe pla,intiffs§respondent submits that the matter
has dragged on for severalfljriears and the plaintiffs are in dire
need the p–rernisels””a’nd apart from that appellant has got
‘others.prerr1i.sesifwhich he has let out and therefore grant of time
as sought appellant’s counsel is not warranted.
.«_}fIavfi’ng heard to the above effect and taking note of the
_i_1tiri’1e ‘spent in the litigation, I am of the View that appellant can
‘granted three months’ time to vacate and hand over vacant
«%
11
possession to the respondents-plaintiffs and the appellant shall
also continue to pay the rent till the date of handing over
possession. If the appellant does not hand over the posse-susion
Within the aforesaid time, the respondents–plaintiffsistare?’
liberty to take necessary help from the p0lice’v’peVi:Ct–_t11el
appellant from the suit premises. Alpvpell-ant? shai1l..lalso7fi-l.e
affidavit before this court within -two Weeks frc-ml’ the_da_li;e of
this orders in respect of time granted_V to hand over
vacant possession to the re”s–por–i:lder1ts as in respect of
payment of rents.
16. For the above :§vEeasovri~s, apllpeal ‘stands dismissed.
Sd/v
EUDGE
lJ_rn/»–l ”