SHAMSUDDIN Vs. ANAND KUMAR H

JUDGEMENT

(1.) Defendant No.5 being aggrieved by the order dated 12.02.2018 passed in Miscellaneous Appeal No.18 of 2016 by the III Additional Senior Civil Judge and C.J.M, Dharwad (for short the 'first appellate Court') reversing the order on preliminary issues dated 26.03.2016 passed in O.S.No.376 of 2015 by the Principal Civil Judge and J.M.F.C., Dharwad (for short the 'trial Court') has filed this revision petition.

(2.) The brief facts of the case are that the plaintiff filed O.S.No.376 of 2015 before the Trial Court seeking direction to the defendants to handover the vacant possession of the suit property. It is the case of the plaintiff that the suit property is an open space comprised with temporary shed C.T.S.No.218/A1/A1/ A2/LB measuring 287 sq. yards and C.T.S.No.218/A1/ C2/LB measuring 77 sq. yards of Line Bazaar, near Sangam talkies, Dharwad. The original owner of these properties by one Sri.Shivashankar Tenginakai of Dharwad as per the partition between one Abjit Tenginakai and their family in the year 1992. The husband of the defendant No.1 and father of defendant Nos.2 to 4 were in possession of the property as a tenants in the property of said Tenginakai family. Abjit Tenginakai filed H.R.C. Petition No.23 of 1996 against the husband of the defendant No.1 and father of defendant Nos.2 to 4 and the said petition ended in compromise decree. As per the decree, the deceasedCRP. Jayakumar Patravali handed over the vacant possession of the suit property to the original owners. The plaintiff has purchased the suit property from Abjit Tenginakai on 17.04.2015 through a registered sale deed for a sale consideration of Rs.92,00,000/- and he was put in possession of the suit property. Defendant Nos.1 to 6 have no locus standi to question the sale deed in their favour, the deceased-Jayakumar Patravali was in occupation of the property as tenant of the plaintiff's through the vendors family on paying yearly rent of Rs.1,500/- to his vendor's, after the plaintiff became owner of the property. The compromise between vendor of the plaintiff and deceased husband of defendant No.1 and father of defendant Nos.2 to 4 is not binding on him. Plaintiff's vendor had filed HRC.No.23 of 1996 it was also found that the family members of Jayakumar Patravali had sublet the portion of the suit property. Defendant Nos.5 and 6 are in no way concerned that they are in illegal occupation. The plaintiff got issued legal notice to the defendants on 23.07.2015 to quit and handover the vacant possession to the plaintiff. Defendant Nos.1 to 4, 5 and 6 are responsible to pay damages of Rs.20,000/-. Therefore, the plaintiff filed the said suit for eviction of the defendants from the suit property.

(3.) In pursuance of the summons defendant Nos.2 to 5 appeared through their counsels, defendant No.6 was placed ex-parte, defendant No.1 was reported as dead. Defendant No.5 filed written statement, which was adopted by defendant Nos.2 to 4 and they have contended that the description of the suit property is not correct, there is no cause of action for the suit. The plaintiff has not properly valued the suit property for the purpose of payment of Court fee and also jurisdiction. The plaintiff has purchased the property for a value of Rs.92,00,000/-. Therefore, the Court has no jurisdiction, the suit for mere possession is not maintainable without seeking the relief of declaration. Defendant Nos.5 and 6 had filed HRC. Petition No.27 of 1987 before the Principal Munsiff, Dharwad under the Rent Control Act and restoration of supply of electricity to the suit property and the said petition was dismissed on the ground that there is no relationship between the parties as landlord and tenants. Thereafter, the parties entered into compromise. The business was run by defendant No.5 alone in the suit property. The plaintiff is not landlord and prayed for dismissal of the suit.