(1.) The present regular second appeal has been preferred by the defendants, being aggrieved by the judgment and decree dated 10.12.2010, passed by the Presiding Officer, FTC-III and Additional MACT, Belgaum, in RA.No.664/2009, by which appeal was allowed and the judgment and order dated 21.11.2005, passed by the I Additional Civil Judge, Junior Division, Belgaum, in O.S.No.101/2005 was set aside by decreeing the suit with costs.
(2.) It is the case of the plaintiffs in their suit O.S.No.101/2005 filed for possession that they are the landlords and defendants are the tenants of the suit property. Originally, father of the defendants by name Yellappa Patil was the tenant of the suit property, after his demise, defendants continued as tenants and are running Utensils Shop in the suit property by paying a monthly rent of Rs.350/-. When the facts stood thus, Defendant Nos.1 and 2 had filed a petition in HRC.No.209/1991 seeking permission to carry out the repairs of the suit property. Subsequently the said matter was referred to Rent Controller, Belgaum and an enquiry was initiated. Thereafter the petition came to be dismissed. It is further case of the plaintiffs that they are in need of the suit property for their personal use and bona fide requirement. Defendants are paying monthly rent and plaintiffs are not interested to continue the tenancy and they requested the defendants to hand over the vacant possession of the suit property by terminating the tenancy. Even in spite of their request, defendants did not vacate the suit property and as such plaintiffs got issued a legal notice dated 1.12.2004 by terminating the tenancy. But defendants gave evasive reply by contending that the suit property is a commercial property having plinth area of more than 14 sq.ft. and therefore the provisions of the Karnataka Rent Act,1999 are not applicable. In that light, plaintiffs are constrained to file the suit for possession and prayed for decreeing the suit.
(3.) Defendants appeared and filed their written statement denying the averments made in the plaint contending that description of the suit property is not correct and the suit property has been taken up by father of the defendants on lease basis and after his death the leasehold rights in respect of the suit property are inherited to his widow, five sons and three daughters. Therefore defendant Nos.1 and 2 are alone not the owners of the suit property. It is further contended that the suit is defective and plaintiffs are not entitled to seek possession. It is further contended that after the death of the original tenant, the legal heirs continued and are carrying on the business by paying Rs.350/- per month. The legal notice dated 1.12.2004 is illegal and defective. The other legal heirs are not issued with legal notice and they are also not made parties to the suit and as such the suit is not maintainable. It is further contended that all the legal heirs including the widow have become the tenants and M/s.Y.B Patil & Sons is the tenant in respect of the lease premises and defendant No.1 alone is not the partner and along with him, Sudhir and others are also partners. On these grounds, they prayed for dismissal of the suit.