DAVID AMMANNA Vs. DONALD LOBO

JUDGEMENT

(1.) This revision petition is directed against the order passed by the 2nd Additional District and Sessions Judge, D.K., Mangaluru in R.R.P No.9/2012.

(2.) Briefly stated the facts are that the father of the petitioner David Ammanna was the owner of the property measuring 27 cents including the petition property having purchased the same as per sale deed dated 12.01.1979, is the claim of the petitioner. It transpires that the father of the petitioner had executed a registered Settlement Deed dated 24.06.2010 settling 15 cents of land including Door No.3- 27/3 petition property in favour of the petitioner. Respondent filed HRC petition before the 2nd Additional Civil Judge & JMFC, Mangalore, D.K. for eviction from the schedule property contending that the father of the petitioner was the tenant under him. It is contended by the petitioner that his father was not notified in the trial proceedings in HRC No.7/2011. HRC petition was allowed by the trial Court exparte and the respondent filed execution petition in Execution Case No.78/2012. In the said execution proceedings, petitioner filed an application under Order XXI Rule 97 of CPC. By order dated 10.08.2012, Executing Court observed that the remedy of the petitioner was to file a revision petition or the appeal independently challenging the order of eviction dated 17.02.2012 in HRC No.7/2011. No application filed under Order XXI Rule 97 of CPC was maintainable. Hence, petitioner filed Revision Petition in R.R.P.No.9/2012 challenging the judgment of the trial Court in HRC No.7/2011. The same came to be dismissed by order dated 17.12.2014 in R.R.P.No.9/2012. Aggrieved by the same, petitioner is before this Court.

(3.) The learned counsel Sri.Balakrishna Shastry, appearing for the petitioner would contend that the learned District Judge has proceeded wrongly on the premise that the petitioner has assailed the order dated 10.08.2012 passed by the 2nd Additional Civil Judge & JMFC., D.K., Mangaluru in Execution No.78/2012 where by the application filed by the petitioner under Order XXI Rule 97 of CPC was rejected. Infact, it was the order dated 17.02.2012 in HRC No.7/2011 which was challenged before the Revision Court. It was a wrong approach of the Revision Court in framing the points related to the execution case and not with the original decree passed in HRC No.7/2011. The two points framed by the Revisional Court being answered in the negative, Revision Petition came to be dismissed considering the grounds urged by the petitioner. It was the specific case of the petitioner that Godfred Ammanna, the father of the petitioner was not the tenant of this petition premises. The father of the petitioner was the owner of the entire property measuring 27 cents including the petition premises having purchased the same under a registered sale deed dated 12.01.1979 as per Document No.858/1978-79 before the Sub-Registrar, Mangaluru City. The father of the petitioner had executed a registered Settlement Deed dated 24.06.2010 registered as Document No.1608/2010-11 settling 15 cents of the lands including the petition premises in favour of the petitioner. By virtue of the Settlement Deed, the petitioner became the owner of the petition premises. The katha certificate of the petition premises stands in the name of the petitioner describing the petitioner as the owner. Under these circumstances, no eviction order would have been passed by the HRC Court entertaining the petition filed by the respondent in HRC No.7/2011. The Revisional Court has referred Ex.P1 as lease deed and Ex.P2 as the legal notice. However, the said two documents, Exs.P1 and P2, are not genuine. The father of the petitioner is said to have executed those two documents at the age of 86 and 89 years respectively. Ex.P2 as could be verified from the documents clearly establishes that it is a letter said to have been addressed by the father of the petitioner and not a legal notice as observed by the learned Civil Judge in HRC No.7/2011. No notice was served on the father of the petitioner to contest the matter. It was only on the report filed by the bailiff of the Court, the Court proceeded to pass the judgment and decree exparte. The principles of natural justice demands fair hearing; No man should be condemned unheard. These vital aspects urged by the petitioner in the revision petition was not properly appreciated by the revision Court. On the other hand, the revision Court proceeded on the ground that the petitioner has challenged the order passed by the Executing Court and dismissed the revision petition. Accordingly, he seeks for an opportunity to establish his claim over the petition schedule properties.