SHRI.SWAMI VIVEKNANDA EDUCATION SOCIETY vs SHRI. TULJA BHAVANI SOCIAL
- Court
- Karnataka High Court
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RSA No. 100186 of 2018
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
TH
DATED THIS THE 17 DAY OF APRIL 2026
R
BEFORE
THE HON'BLE MRS JUSTICE GEETHA K.B.
REGULAR SECOND APPEAL NO. 100186 OF 2018 (POS)
BETWEEN:
1. SHRI. SWAMI VIVEKANANDA
EDUCATION SOCIETY, HALIYAL,
R/BY ITS CHAIRMAN,
SRI. VENKATESH
S/O DAMODAR HEGDE,
AGE/A: 78 YEARS,
R/O: SUBHASH ROAD, HALIYAL,
DIST: UTTARA KANNADA- 581329.
2. SHRI. SWAMI VIVEKANANDA
EDUCATION SOCIETY, HALIYAL,
R/BY ITS SECRETARY,
R/O: KHAJI GALLI, HALIYAL,
TQ: HALIYAL,
DIST: UTTARA KANNADA- 581329.
…APPELLANTS
(BY SRI. G.B. SHASTRY, ALONG WITH
SRI. DINESH M. KULKARNI, ADVOCATE)
AND:
SHRI. TULJA BHAVANI SOCIAL
EDUCATIONAL AND CHARITABLE TRUST,
HALIYAL, R/BY ITS CHAIRMAN,
SHRI. RAGHUNATH
S/O VISHWANTHRAO DESHPANDE,
R/O: V.R. DESHPANDE ROAD,
HALIYAL, TQ: HALIYAL,
DIST: UTTARA KANNADA- 581329.
…RESPONDENT
(BY SRI. HARSH DESAI, ADVOCATE FOR SOLE RESPONDENT)
SAROJA
HANGARAKI
Digitally signed by
SAROJA HANGARAKI
Location: HIGH
COURT OF
KARNATAKA,
DHARWAD BENCH
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THIS REGULAR SECOND APPEAL FILED UNDER SECTION
100 OF CPC, PRAYING TO, AGAINST THE JUDGEMENT & DECREE
PASSED IN R.A. NO. 42/2015 DATED 31.01.2018 BY THE COURT
OF I ADDITIONAL DISTRICT AND SESSIONS JUDGE, UTTAR-
KANNADA, SITTING AT SIRSI CONFIRMING THE JUDGMENT AND
DECREE IN O.S. NO. 31/2011 DATED 18.08.2015 PASSED BY
THE SENIOR CIVIL JUDGE, YALLAPUR SITTING AT HALIYAL AS
NULL AND VOID, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MRS JUSTICE GEETHA K.B.
ORAL JUDGMENT
(PER: THE HON'BLE MRS JUSTICE GEETHA K.B.)
1. This is the appeal filed under Section 100 of C.P.C. by
appellants/defendants No.1 and 2 praying for setting
aside the judgment and decree dated 31.01.2018
passed in R.A.No.42/2015 on the file of I Additional
District and Sessions Judge, U.K. Karwar Sitting at
Sirsi (for short, ‘First Appellate Court’) by confirming
the judgment and decree dated 18.08.2015 passed in
O.S.No.31/2011 on the file of Senior Civil Judge,
Yellapur Sitting at Haliyal (for short, ‘Trial Court’) and
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to set aside the judgment and decree of Trial Court
also.
2. Parties would be referred with their ranks as they were
before Trial Court for the sake of convenience and
clarity.
3. Plaintiff-Trust has filed the suit before Trial Court
praying for possession of suit schedule property
bearing CTS No.1522 Situated at Khazigalli Ward
within the limits of Town Panchayath, Haliyal Taluk; to
direct defendants to pay arrears of leave and license
fee of ₹36,000/- with interest at 12% per annum from
the date of suit till repayment; direct defendants to
pay mesne profits of ₹10,000/- per month from the
date of suit till delivery of vacant possession of suit
property; for courts costs and for such other reliefs.
4. The case of plaintiff before Trial Court in nutshell is
that;
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4.1. Plaintiff is the absolute owner of suit schedule
property by virtue of registered Gift Deed dated
15.02.1997 executed by His Holiness Shri
Siddhahandi Bhadanganathamath Swamiji of
Kumbarada. After such gift, name of plaintiff is
entered in CTS records. Plaintiff has taken
possession of the property and thereafter
constructed a building thereon. Said building is
also recorded in the name of plaintiff in the
concerned assessment register maintained by
the local authority.
4.2. In the year 2000, defendants approached the
plaintiff and requested to permit him to carry out
its educational activities in suit schedule
property. Accordingly, plaintiff permitted
defendants to conduct educational activities in
the suit schedule property for a limited period on
leave and license basis subject to payment of
regular license fee as intimated by the plaintiff.
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Said leave and license fee being oral in nature is
from month to month terminable by 15 days
notice. However, defendants agreed to make
payment of leave and license fees annually. But
from the date of induction, defendants have
never paid license fee to plaintiff in spite of
repeated requests and demands. Hence, plaintiff
got issued legal notice dated 14.09.2010
terminating the leave and license of plaintiff over
suit schedule property by the end of 31.12.2010
and called upon the defendants to hand over
vacant possession on or before 31.12.2010 with
arrears of leave and license fee.
4.3. After service of said notice, defendants have
given untenable reply dated 05.10.2010. Hence,
the suit for appropriate reliefs.
4.4. Plaintiff valued the suit for arrears of leave and
license at ₹1,000/- per month restricting only for
3 years preceding to file the suit at ₹36,000/-
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and also prayed for mesne profits. It is stated in
the plaint that the market value of suit schedule
property is more than ₹10,00,000/- for
pecuniary jurisdiction of the suit and it valued
suit under Section 41(2) of Karnataka Court Fees
and Suits Valuation Act, 1958 (for short
hereinafter referred to as ‘the Act, 1958’) at
₹12,000/- for the relief of possession and at
₹36,000/- for arrears of rent and paid the Court
fee accordingly.
5. After filing the suit, defendant-Society appeared
through its counsel and filed written statement,
wherein it contended that;
5.1. Plaintiff has filed the suit with oblique motive and
shown the address of defendants at Tilak Road,
Haliyal, but defendants address is at Khazigalli,
Haliyal. A registered lease deed dated
03.02.1967 was executed in respect of suit
schedule property in favour of Sri Basayya
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Chennmalayya Yellapurmath for a period of 51
years with annual rent of ₹50/-. Thus, the
aforesaid lessee was in possession and
enjoyment of the property. These facts are
suppressed by the plaintiff. Said lease was in
force. Hence, the suit is not maintainable without
impleading lessee as party to the proceedings.
5.2.
The alleged Gift Deed in favour of plaintiff is not
valid and it does not confer any title over the suit
schedule property. The defendant is a registered
Society under Societies Registration Act, 1860 in
the year 1987. Said Trust (ought to be called as
Society) is not properly described in the plaint.
Secretary is ought to have been made as party
to the suit and thus, suit is not maintainable.
5.3. Defendant - Society is running primary and high
school in suit schedule property since 2000.
Earlier to it, this Society was running its school in
C.T.S.No.1232. The said space was not adequate
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to cater the growing needs of the Society and
hence, Sri R.V. Deshpande, the then Minister in
the Government prevailed over members of the
defendant-Society to construct a building in the
suit schedule property. He also assured financial
assistance to construct the building. The
defendants, with the permission of heirs of
original lessee of the property, have constructed
the school building in the suit schedule property
by investing ₹32,00,000/- collected by way of
grant, loan and donations. Thus, plaintiff has no
right, title and interest in or over the building
and cannot claim any relief over the same.
5.4. Plaintiff claims to be the owner of the suit
schedule property based on Gift Deed, but said
Gift Deed is invalid and illegal not in accordance
with law. Plaintiff very well knows about
construction of building in the suit schedule
property, but has not raised any objection at the
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time of construction and at the time of running
the school. 600-700 students are studying in the
school. The defendants acting on the
representation of plaintiff have changed its
position to its advantage. Thus, plaintiff is
estopped from claiming any right over the
property.
5.5.
Defendants deny the existence of licensor and
licensee relationship between plaintiff and
defendants. Thus, there is no question of
terminating the so called license. It is defendant
- Trust has constructed the building and not
plaintiff as alleged in the plaint. The Court fee
paid is not proper. The plaintiff has not valued
the suit property properly. Court fee is to be paid
on market value of the suit land. As plaintiff
valued the suit land more than ₹10,00,000/-,
plaintiff has to pay Court fee on said amount and
it cannot value the suit for purpose of Court fee
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and market value differently, as the land in
dispute is not agricultural property. Hence,
prayed for dismissal of suit.
6. Based on the above pleadings, the Trial Court has
framed the following issues:
“ISSUES
1. Whether the plaintiff proves the description of
the suit property?
2. Whether the plaintiff proves that he is the
owner of the suit property?
3. Whether the plaintiff further proves that he has
permitted the defendant to occupy the suit
property on leave and license basis?
4. Whether the plaintiff further proves that the
said leave and license is terminated?
5. Whether the plaintiff is entitled for the
possession of the suit property?
6. Whether the plaintiff is entitled for the arrears
of leave and license free of Rs.36.000-00 with
interest thereon at the rate of Rs.12% p.a.
from the date of the suit till realization?
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7. Whether the plaintiff is entitled for the future
mesne profits at Rs.10.000-00 p.m. till date of
the delivery of the suit property?
8. Whether the defendant proves that the suit is
not maintainable without impleading
Shri.Basayya Channamallayya Yallapurmath as
a party to the proceedings?
9. Whether the defendants proves that the suit is
not maintainable against the defendant Society
without making the Secretary as a party to the
suit?
10. Whether the defendant proves that the
building in the suit property is constructed by
the defendant Society?
11. Whether the defendant proves that the Gift
Deed executed by his holiness Sri.
Siddhahandibhadaganath Swamiji of Kumbarda
in favour of the plaintiff is not legal and valid?
12. Whether the defendant proves that the plaintiff
is estoped from claiming any rights over the
suit property?
13. Whether the defendant proves that the
valuation of the suit property and court fee
paid is not proper and correct?
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14. To what reliefs the plaintiff is entitled for?
15. What decree or order?”
7. During pendency of the suit, the Secretary of
defendant - Society was impleaded as defendant No.2.
8. After recording the evidence of both sides and hearing
arguments of both sides, the Trial Court has decreed
the suit of plaintiff with costs directing defendant-
Society to hand over vacant possession of suit
schedule property by holding that the suit valued
under Section 41(2) of the Act, 1958 is proper and
thereby decreed the suit.
9. Aggrieved by the said judgment and decree of Trial
Court, defendants/appellants have preferred the first
appeal.
10. After hearing arguments of both sides, the First
Appellate Court has dismissed the appeal with costs by
confirming the judgment and decree of Trial Court.
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11. Aggrieved by the same defendants/appellants are
before this Court.
12. At the time of admitting the appeal, the following
substantial questions of law would arise for
consideration:
i) Whether the Trial Court was justified in holding
that the Court fee valued under Section 41 of
the Karnataka Court Fees and Suits Valuation
Act, 1958 is proper, when admittedly there was
no landlord–tenant relationship between the
parties, and consequently whether the Court
fee paid is sufficient in law?
ii) Whether the suit is hit by Section 60(b) of
Indian Easement Act, 1882?
13. Heard arguments of both sides.
14. Learned Counsel Sri G.B.Shastry appearing on behalf
of learned counsel for the appellants Sri.Dinesh M.
Kulkarni would submit his arguments that;
14.1. The suit as filed in present form is not
maintainable in law. Trustees to the suit are not
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made as parties to the suit. There is no pleading
in the plaint that Chairman of plaintiff - Trust is
authorized to file the suit and thus, suit itself is
not maintainable in law.
14.2. Learned Counsel would further submit that, at
the time of execution of Gift deed in favour of
plaintiff, the lease in favour of Basayya
Chennmalayya Yellapurmath was in force and
thus, possession ought not to have been handed
over to plaintiff by the original owner and thus,
the gift was invalid. Furthermore, Court fee paid
on the suit is not proper. The Court fee was
valued by the plaintiff under Section 41(2) of the
Act, 1958. Only when there is landlord and
tenant relationship between parties, Section 41
of the Act, 1958 applies, but as per plaint
pleadings, the relationship between parties is
licensor and licensee and not landlord and
tenant. Hence, valuation of Court fee under
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Section 41(2) of the Act, 1958 is improper.
Under those circumstances, the suit ought to
have been valued under Section 29 of the Act,
1958. Furthermore, plaintiff has not mentioned
the actual market value of suit schedule property
in the plaint and hence, there is no proper
valuation and payment of Court fee.
14.3.
The learned counsel would further submit that
the First Appellate Court has not framed the
proper points for determination; points for
consideration ought to have been raised on all
issues of law and fact and thus, the judgment
passed by the First Appellate Court is not in
accordance with law. Furthermore, defendant-
Society has constructed 1st floor in the suit
schedule property, which is admitted by P.W.1.
Hence, if defendant- Society is licensee under
plaintiff, then, as per Section 60(b) of the Indian
Easements Act, 1882 (in short, the Act, 1882), it
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became irrevocable license and thus, plaintiff
cannot claim possession of suit schedule
property from defendants.
14.4. Learned counsel would further submit that the
plaintiff’s chairman is not examined. Only the
Administrator of plaintiff - Trust was examined
as a S.P.A. holder who does not know anything
about the case. Hence, his evidence cannot be
looked into for any purpose and thus, decreeing
the suit based on his evidence is not proper. The
defendants have not taken contention in the
written statement that plaintiff - Trust is not
properly represented, but in the First Appellate
Court and also before this Court, those
contention was raised and as this is the point of
law, it can be raised at any stage of proceedings.
Appeal is nothing but continuation of the suit.
Defendants can take inconsistent pleas. The First
Appellate Court has not considered the
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contention of payment of Court fee and valuation
made for the purpose of Court fee and First
Appellate Court has not considered the legal
point regarding plaintiff - Trust is not properly
represented. Hence, prayed for allowing the
appeal and to set aside the judgments passed by
both the First Appellate Court and Trial Court.
14.5.
In this regard learned counsel for appellants
relied on the following citations:
i)
Ram Sarup Gupta (dead) by L.Rs.,
Vs. Bishun Narain Inter College and
Others reported in AIR 1987 SC 1242
Janki Vashdeo Bhojwani and another
ii)
Vs. Indusind Bank Ltd., and others
reported in AIR 2005 SC 439.
iii) Atmaram Ranchhodbhai Vs.
Gulamhusein Gulam Mohiyaddin and
another reported in 1972 SCC OnLine
Guj 10.
iv) M/s. Band Box Private Limited Vs.
Estate Officer, Punjab and Sind Bank
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and another reported in AIR 2014 SC
1602.
v) Baldev Singh and others Vs. Manohar
Singh and another reported in (2006)
6 SCC 498.
vi) Malluru Mallappa (dead) through
legal representatives Vs.
Kuruvathappa and others reported in
(2020) 4 SCC 313.
15. Learned counsel for respondent Sri.Harsh Desai has
submitted his arguments orally and also submitted his
written submissions wherein he contended that;
15.1. If this Court comes to the conclusion that Court
fee is not properly valued and plaintiff has to pay
deficient Court fee, then as per Section 11(4) of
the Act, 1958, this Court can give some time to
plaintiff to pay the deficit Court fee and if he has
not paid the said amount within the prescribed
period, then, the Court may take suitable action
against plaintiff for recovery of the deficit Court
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fee as arrears of land revenue and for non-
payment of deficit Court Fee, the suit cannot be
dismissed in limine.
15.2. Learned counsel would further submit that when
First Appellate Court is concurring with the
findings of Trial Court, it need not give detailed
reasons for each and every issue and even the
summary judgment is permissible. Learned
counsel for respondents would further submit
that defendant - Society has not admitted that it
is licensee under plaintiff and not admitted the
title of plaintiff and also not set up title with it.
Under those circumstances, when he has not
admitted the ownership of plaintiff as well as
plaintiff as licensor, Section 60(b) of the Act,
1882 is not applicable to the facts and he cannot
claim the benefit under Section 60(b) of the Act,
1882. Only if the licensee acting upon the license
has put up any permanent structure on the
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property in question, the Section 60(b) of the
Act, 1882 applies and the license became
irrevocable. However in the present case
defendants have not admitted this license or
licensee relationship. Hence, he is estopped from
claiming the benefit under Section 16(b) of the
Act, 1882.
15.3.
Learned counsel would further submit that
initially, defendants have not taken the plea that
plaintiff - Trust is not properly represented. As
per Order XXXI Rule 1 of C.P.C., the trustee,
executor or administrator shall represent the
plaintiff and it shall not ordinarily be necessary to
make all of them as parties to the suit. P.W.1
even though Special power of attorney holder of
plaintiff is fully aware about facts of the case and
hence, his evidence is admissible under Order III
Rule 2 of C.P.C.
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15.4. Learned counsel would also submit that
defendant - Society not being owner or not
establishing any title on itself, cannot claim that
the Gift Deed in favour of plaintiff is invalid and
illegal and it can be questioned only by the donor
and donee and none of them have disputed this
Gift Deed. Furthermore, the legal representatives
of permanent lessee have filed the suit which
was dismissed as withdrawn and then, the said
lease was terminated in accordance with law.
Hence, the Gift Deed in favour of plaintiff is valid.
15.5. For these reasons the learned counsel for
respondent prays for dismissal of the appeal with
costs throughout, but fairly submitted that the
Court may grant reasonable time to defendants
to evict the suit schedule property as it is
running a school in the suit schedule property.
16. After hearing arguments of both sides and verifying
the appeal records along with First Appellate Court
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and Trial Court records, finding of this Court on the
above substantial question of law No.1 in the
AFFIRMATIVE and substantial question of law No.2 in
the NEGATIVE for the following:
REASONS
17. Plaintiff has produced the certified copy of Gift Deed as
per Ex.P.23 to show that Shri Siddhahandi
Bhadanganathmath Swamiji has gifted the suit
schedule property in favour of plaintiff - Trust. Said
Gift Deed is acted upon. Based upon it, revenue
entries were mutated into the name of plaintiff in City
Survey Records maintained by the concerned Town
Municipal Authorities. These facts are established by
plaintiff by producing relevant documents.
18. As far as lease in favour of Basayya Chennmalayya
Yellapurmath is concerned, plaintiff has produced
certified copies of plaint, order sheet and orders on
I.A.No.1 in O.S.No.9/1997 filed by the legal
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representatives of original lessee. These records
reveal that said suit filed by legal representatives of
original lessee was withdrawn as settled out of Court.
Subsequently, Ex.P.6 was executed by the said legal
representatives of permanent lessee in favour of
plaintiff - Trust and thus, the lease was terminated in
accordance with law. Hence, the Gift Deed coupled
with these documents establishes the ownership of
plaintiff over suit schedule property.
19. The defendant - Society has not set up title on it. But,
it claims to be in possession of suit schedule property
with permission of original lessee. Defendant -
Society failed to establish the said fact. Hence,
Defendant - Society being not claiming ownership over
suit schedule property is estopped from contending
that plaintiff is not owner of suit schedule property,
that too, when its original owner and the legal
representatives of permanent lessee do not disputes
the ownership of plaintiff based on Gift Deed.
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20. As far as Special Power of Attorney executed by
plaintiff in favour of P.W.1 is concerned, P.W.1 is
working in the said institution since from 2004 and he
has deposed that, he is having personal knowledge
and also knowledge based on records pertaining to the
facts of the case. Hence, his evidence cannot be
discarded in toto. Only if Special Power of Attorney
holder does not have knowledge about the facts of the
case, then, he cannot depose on those facts.
21. In this regard, learned counsel for appellants relied on
the judgment of the Hon’ble Apex Court in Janki
Vashdeo Bhojwani and another Vs. Indusind
1
Bank Ltd., and others , wherein, it is held as
follows:
“The power of attorney holder does not
have the personal knowledge of the matter of
the appellants and therefore he can neither
depose on his personal knowledge nor can he
1
AIR 2005 SC 439
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be cross-examined on those facts which are to
the personal knowledge of the principal.
Order III, Rules 1 and 2, CPC, empowers
the holder of power of attorney to "act" on
behalf of the principal. In our view the word
"acts" employed in Order III, Rules 1 and 2,
CPC, confines only in respect of "acts" done by
the power of attorney holder in exercise of
power granted by the instrument. The term
"acts" would not include deposing in place and
instead of the principal. In other words, if the
power of attorney holder has rendered some
"acts" in pursuance to power of attorney, he
may depose for the principal in respect of such
acts, but he cannot depose for the principal for
the acts done by the principal and not by him.
Similarly, he cannot depose for the principal in
respect of the matter which only the principal
can have a personal knowledge and in respect
of which the principal is entitled to be cross-
examined.”
22. In the aforesaid citation, it is specifically held that, if
the power of attorney holder does not have personal
knowledge about the facts of the case, then, he can
neither depose on his personal knowledge nor can be
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cross- examined on those facts which are in personal
knowledge of the principal. Hence, his evidence cannot
be the basis to pass any judgment. However, in the
instant case, as discussed earlier, P.W.1 has
categorically deposed that he is having personal
knowledge and also knowledge based on records
about facts of the present case. Furthermore, the
documents relied upon by him are certified copies of
Court records and the registered Gift Deed. They
cannot be disputed by defendants. Hence, in that
context, the evidence of P.W.1 cannot be discarded in
toto and it can be looked into about the part of his
evidence, wherein he is having personal knowledge
and knowledge based on records.
23. With this background, the other contentions raised by
the appellants are to be looked into.
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24. Learned counsel for appellants vehemently submitted
his arguments that the First Appellate Court has not
framed the proper points of law for determination.
25. On the point of non-formulating proper points for
determination by the fact, the learned counsel for
appellants relied on the following citations:
25.1. The judgment of Hon’ble Apex Court in Malluru
Mallappa (dead) through legal representatives
2
Vs. Kuruvathappa and others wherein at
paragraph Nos.13, 15, 16 and 18 held as
follows:
13. It is a settled position of law that an
appeal is a continuation of the proceedings of
the original court. Ordinarily, the appellate
jurisdiction involves a rehearing on law as well
as on fact and is invoked by an aggrieved
person. The first appeal is a valuable right of
the appellant and therein all questions of fact
and law decided by the trial court are open for
reconsideration. Therefore, the first appellate
2
(2020) 4 SCC 313
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court is required to address itself to all the
issues and decide the case by giving reasons.
The court of first appeal must record its
findings only after dealing with all issues of law
as well as fact and with the evidence, oral as
well as documentary, led by the parties. The
judgment of the first appellate court must
display conscious application of mind and
record findings supported by reasons on all
issues and contentions [see: Santosh Hazari
v. Purushottam Tiwari reported in (2001) 3
SCC 179 , Madhukar v. Sangram reported in
(2001) 4 SCC 756 , B.M. Narayana Gowda
v. Shanthamma reported in (2011) 15 SCC
476 , H.K.N. Swami v. Irshad Basith
reported in (2005) 10 SCC 243 and Sri Raja
Lakshmi Dyeing Works v. Rangaswamy
Chettiar reported in (1980) 4 SCC 259 ].
15. Order 41 Rule 31 CPC provides the
guidelines for the appellate court to decide the
matter. For ready reference Order 41 Rule 31
CPC is as under:
"31. Contents, date and
signature of judgment. The judgment
of the appellate court shall be in writing
and shall state-
(a) the points for determination;
(b) the decision thereon;
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(c) the reasons for the decision;
and
(d) where the decree appealed from
is reversed or varied, the relief to
which the appellant is entitled:
and shall at the time that it is
pronounced be signed and dated by the
Judge or by the Judges concurring
therein."
16. In Vinod Kumar v. Gangadhar
reported in (2015) 1 SCC 391 this Court has
reiterated the principles to be borne in mind
while disposing of a first appeal, as under:
(SCC p. 395. para 15)
"15. Again in B.V. Nagesh v. H.V.
Sreenivasa Murthy reported in (2010)
13 SCC 530 , this Court taking note of all
the earlier judgments of this Court
reiterated the aforementioned principle
with these words: (SCC pp. 530-31,
paras 3-4)
‘3. How the regular first appeal is
to be disposed of by the appellate
court/High Court has been
considered by this Court in various
decisions. Order 41 CPC deals with
appeals from original decrees.
Among the various rules, Rule 31
mandates that the judgment of the
appellate court shall state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision;
and
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(d) where the decree appealed
from is reversed or varied, the
relief to which the appellant is
entitled.
4. The appellate court has
jurisdiction to reverse or affirm the
findings of the trial court. The first
appeal is a valuable right of the
parties and unless restricted by law,
the whole case is therein open for
rehearing both on questions of fact
and law. The judgment of the
appellate court must, therefore,
reflect its conscious application of
mind and record findings supported
by reasons, on all the issues arising
along with the contentions put forth,
and pressed by the parties for
decision of the appellate court.
Sitting as a court of first appeal. it
was the duty of the High Court to
deal with all the issues and the
evidence led by the parties before
recording its findings. The first
appeal is a valuable right and the
parties have a right to be heard both
on questions of law and on facts and
the judgment in the first appeal
must address itself to all the issues
of law and fact and decide it by
giving reasons in support of the
findings. (Vide Santosh Hazari v.
Purushottam Tiwari reported in
(2001) 3 SCC 179 , SCC p. 188,
para 15 and Madhukar v. Sangram
reported in (1969) 2 SCC 74 , SCC
p. 758, para 5.) "
18. It is clear from the above provisions
and the decisions of this Court that the
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judgment of the first appellate court has to set
out points for determination, record the
decision thereon and give its own reasons.
Even when the first appellate court affirms the
judgment of the trial court, it is required to
comply with the requirement of Order 41 Rule
31 and non-observance of this requirement
leads to infirmity in the judgment of the first
appellate court. No doubt, when the appellate
court agrees with the views of the trial court on
evidence, it need not restate effect of evidence
or reiterate reasons given by the trial court.
Expression of a general agreement with the
reasons given by the trial court would
ordinarily suffice.”
26. In this regard, learned counsel for respondent relied
on the following citations:
26.1. The judgment of Hon’ble Supreme Court in
Nopany Investments (P) Ltd.,. Vs. Santosh
3
Singh (HUF) is as follows:
“ A perusal of the judgment of the first
appellate court after remand would clearly
indicate that the same was neither cryptic nor
3
(2008) 2 SCC 728
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based on non-consideration of the issues
involved in the appeal. Apart from that, it has
to be kept in mind that the decisions of this
Court in Madhukar v. Sangram reported in
(2001) 4 SCC 756 and Santosh Hazari
reported in (2001) 3 SCC 179 cases were
considering the reversal of the findings of fact
of the trial court. In the present case, the first
appellate court had affirmed the findings of the
trial court, which were based on total
consideration of the material evidence-
documentary and oral on record. It is well
settled that in the case of reversal, the first
appellate court ought to give some reason for
reversing the findings of the trial court
whereas in the case of affirmation, the first
appellate court accepts the reasons and
findings of the trial court. In any view of the
matter, from a perusal of the judgment of the
first appellate court, it is clear that it reflects
conscious application of mind and has recorded
the findings supported by reason on all the
issues arising along with the contentions put
forward by the parties.”
26.2. The judgment of Hon’ble Supreme Court in
Girijanandini Devi and others Vs. Bijendra
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4
Narain Choudary in paragraph No.13 which
reads as follows:
“ It is not the duty of the appellate court
when it agrees with the view of the trial court
on the evidence either to restate the effect of
the evidence or to reiterate the reasons given
by the trial court. Expression of general
agreement with reasons given by the Court
decision of which is under appeal would
ordinarily suffice.”
27. On careful perusal of the principles noted in all the
above said citations, in the present case, the First
Appellate Court has confirmed the judgment and
decree passed by Trial Court and hence, it need not
give separate reasons for confirming the judgment of
Trial Court. Only when divergent decisions are to be
given, the First Appellate Court has to give in detail
the reasons for not accepting the judgment of Trial
Court and also has to frame each and every point for
determination for each and every issue. In the present
4
1966 SCC OnLine SC 236
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case, the First Appellate Court had affirmed the
findings of the Trial Court, which were based on total
consideration of the material evidence-documentary
and oral on record. It is well settled that in the case of
reversal, the First Appellate Court ought to give some
reason for reversing the findings of the Trial Court
whereas in the case of affirmation, the First Appellate
Court accepts the reasons and findings of the Trial
Court. In that view of the matter, from a perusal of
the judgment of the First Appellate Court, it is clear
that it reflects conscious application of mind and has
recorded the findings supported by reason on all the
issues arising along with the contentions put forward
by the parties.
28. The plaintiff is a Trust and in the plaint cause title, it is
stated that plaintiff - Trust is represented by its
Chairman.
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29. Learned counsel for appellants vehemently submits
that the suit filed in the present nature is not
maintainable in law. Order XXXI Rule 1 of C.P.C. deals
with suits by or against Trust. Hence, reading of
Order XXXI Rule 1 of C.P.C. is very much required. It
is extracted as follows.
“1. Representation of beneficiaries in
suits concerning property vested in
trustees etc.—In all suits concerning property
vested in a trustee, executor or administrator,
where the contention is between the persons
beneficially interested in such property and a
third person, the trustee, executor or
Administrator shall represent the persons so
interested, and it shall not ordinarily be
necessary to make them parties to the suit.
But the Court may, if it thinks fit, order them
or any of them to be made parties.”
30. In this regard, learned counsel for appellants relied on
the judgment of Full Bench of Gujarat High Court in
Atmaram Ranchhodbahi Vs. Gulamhusein Gulam
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5
Mohiyaddin and another , wherein at paragraph
No.15 it is held as under:
“15. We are, therefore, of the view that
unless the instrument of Trust otherwise
provides, all co-trustees must join in filing a
suit to recover possession of the property from
the tenant after determination of the lease. No
one single co-trustee even he be a managing
trustee unanimously chosen by the co-trustees,
can maintain such a suit against the tenant
without joining the other co-trustees. All co-
trustees must be joined in the suit and if any
one or more of them are unwilling to be joined
in the suit as plaintiffs or for some reason or
the other it is not possible to join them as
plaintiffs, they must be impleaded as
defendants so that all co-trustees are before
the Court.”
31. On perusal of the aforesaid judgment of Full Bench of
Gujarat High Court and Order XXXI Rule 1 of C.P.C., it
is clear that if the suit is filed against a third person,
then the trustee, executor or administrator shall
represent the Trust and it shall not ordinarily be
5
1972 SCC OnLine Guj 10
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necessary to make all of them as parties to the suit.
But if Court thinks that, it may order that all or any of
them may be made as parties, the court may pass
such order.
32. In the instant case, defendants have not raised any
plea regarding filing of suit by the Trust represented
by its Chairman. Thus, no issue was framed on this
point and thus, the Trial Court has not passed any
order to make all trustees as parties to the suit.
However, if the suit is filed against the defendant-
Trust, then all the trustees, executors and
administrators shall be made as parties to the suit as
per Order XXXI Rule 2 of C.P.C. As this is the suit
filed on behalf of plaintiff - Trust, it is not required that
all the trustees shall be made as parties to the suit.
33. Learned counsel for appellants would submit that, this
being the point of law, it can be raised at any stage of
the proceedings and even in appeal. In this regard, he
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relied on the judgment of Hon’ble Apex Court in
M/s.Band Box Private Limited Vs. Estate Officer,
6
Punjab and Sind Bank and another wherein at
paragraph Nos.7 and 11 it is held as under:
“7. On the other hand, it was submitted
by Mr. Vikas Singh, learned senior counsel
appearing for the respondent-Bank that the
appellant had raised at an intermediate stage
the plea of not being covered under the Public
Premises Act, and had subsequently dropped
that plea. They had then relied upon guidelines
and, therefore, the plea, which is sought to be
raised at a second stage, cannot be allowed to
be raised now on the ground of res judicata, as
well as constructive res judicata. As far as this
objection of Mr. Vikas Singh is concerned,
inasmuch as the plea raised by Mr. Raval is
based on a legal submission, we would not like
the appellant to be denied the opportunity of
raising the legal plea and, therefore, we do not
accept this submission.
11. For the reasons stated above, we
allow this appeal and set aside the order
passed by the Division Bench as well as by the
6
AIR 2014 SC 1602
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single Judge, by the District Judge, and the
Estate Officer. The eviction proceedings
initiated against the appellant will stand set
aside. ”
34. Even though the appellants have raised this plea at
the appellate stage, as per Order XXXI Rule 1 of the
CPC, any one of the trustees, administrators, or
executors can file the suit. Therefore, the suit filed by
the Chairman of the plaintiff - Trust is maintainable
and thus, this is the suit filed in a proper form.
35. With this background , the point to be considered is,
when there is no landlord and tenant relationship
between plaintiff and defendants, even as per plaintiff,
then whether Court Fee paid under Section 41 of the
Act, 1958 is proper.
36. In some of the letters correspondence between
Chairman of the plaintiff and Chairman of the
defendant - Trust, plaintiff has demanded rent at
₹1,000/- per month, but defendants refused to pay on
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so many grounds. Admittedly, there is no lease
agreement between plaintiff and defendants at any
point of time. There is not even written agreement to
show that defendant - Trust is licensee under plaintiff.
However, it is an admitted fact that defendants are in
possession of suit schedule property since 2000. It is
also established by plaintiff that plaintiff is the owner
of suit schedule property and not defendants.
Defendants’ contention that they have taken
permission from the original lessee and then started
possessing suit schedule property cannot be accepted
because the original lessee has not handed over the
property to the defendants, but the plaintiff handed
over its possession to defendants in the year 2000.
Much earlier to it, in the year 1997 itself, the
possession of suit schedule property was handed over
to plaintiff under Gift Deed and said Gift Deed was
acted upon. Hence the contention of plaintiff that
there is licensor and licensee relationship could be
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accepted because defendants are not trespassers, and
only under permission of plaintiff they are in
possession of suit schedule property.
37. Earned counsel for respondent relied on the judgment
of Hon’ble Supreme Court in Bhimangouda
Mallikarjungouda Dharanappagoudar and others
7
Vs. Golangouda Adiveppagouda Honnawad
wherein it is held as under:
“ What was overlooked by the Munsiff
was that for purposes of quantification of the
court-fee payable, the court should look into
the allegations in the plaint whatever may be
the allegations in the written statement. The
nature of the suit should be judged by what the
plaintiff says and not by what the defendant
says. Looked at in that way, the suit brought
by the plaintiff was clearly one for the recovery
of immovable property from a tenant governed
by S. 41 (2) of the Mysore Court-fees and Suits
Valuation, Act, 1958.”
7
1970(2) Mysore Law Journal page No.262
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38. As discussed above, the plaint pleadings are that
defendant - Society is a licensee under plaintiff and it
has not pleaded that there is landlord and tenant
relationship between parties. Hence, relying upon the
principles noted in the above said Judgment of Hon’ble
Apex Court, the suit has to be valued as per the
pleadings in the plaint.
39. With this background, Section 41 of the Act, 1958 is to
be looked into. It is extracted as under:
41. Suits between landlord and tenant.
(1) In the following suits between landlord and
tenant in civil courts, namely:-
(a) for the delivery by a tenant of the
counterpart of a lease or for acceptance of
patta in exchange for a much alike;
(b) for enhancement of rent;
(c) for the delivery by a landlord of a lease or
for obtaining a patta in exchange for a much
alike;
(d) for recovering occupancy of immovable
property from which a tenant has been illegally
ejected by the landlord;
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(e) for establishing or disproving a right of
occupancy;
fee shall be levied on the amount of rent for
the immovable property to which the suit
relates, payable for the year next before the
date of presenting the plaint.
(2) In a suit for recovery of immovable
property from a tenant including a tenant
holding over after the termination of a
tenancy, fee shall be computed on the
premium, if any, and on the rent payable for
the year next before the date of presenting the
plaint.
Explanation. - Rent includes also damages for
use and occupation payable by a tenant
holding over.
40. A plain reading of Section 41 of the Act, 1958 reveals
that, when a suit is filed between landlord and tenant,
then the fee shall be computed under the said section.
However, admittedly, this suit is not filed alleging the
landlord and tenant relationship. Hence, application
of Section 41 of the Act, 1958 by plaintiff is not proper
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and holding of Trial Court that said provision applies to
present suit is also not proper.
41. When there is no other provision applicable for filing a
suit for possession, then under Section 29 of the Act,
1958 , the court fee is to be valued. Section 29 of the
Act, 1958 is extracted below:
29. Suits for possession not otherwise
provided for.
- In a suit for possession of immovable
property not otherwise provided for, fee shall
be computed on the market value of the
property or on [rupees one thousand].
42. Thus in a suit for possession of immovable property,
not otherwise provided for, fee shall be computed on
the market value of the property. However, this point
is not at all touched by the First Appellate Court
whereas the Trial Court has passed its judgment by
answering issue No.13 that Section 41 of the Act,
1958 is applicable to the case on hand which is
erroneous. It requires interference. Hence the court
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fee valued by plaintiff under Section 41 of the Act,
1958 is incorrect. Plaintiff has to file fresh valuation
slip with correct market value as on the date of filing
of the suit and to pay the court fee by calculating the
court fee as on the date of filing of the suit.
43. In this regard, as per Section 11 of the Act, 1958 , if
the Court of Appeal decides that court fee paid before
Trial Court is insufficient, then Court shall require the
party liable to pay the deficit fee within the time fixed
by it.
44. Section 11 of the Act, 1958 reads as follows:
11 - Decision as to proper fee in courts -
(1) In every suit instituted in any court, the
Court shall, before ordering the plaint to be
registered, decide on the materials and
allegations contained in the plaint and on the
materials contained in the statement, if any,
filed under section 10, the proper fee payable
thereon, the decision being however subject to
review, further review, and correction in the
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manner specified in the succeeding sub-
sections.
(2) Any defendant may, by his written
statement filed before the first hearing of the
suit or before evidence is recorded on the
merits of the claim but, subject to the next
succeeding sub-section, not later, plead that
the subject-matter of the suit has not been
properly valued or that the fee paid is not
sufficient. All questions arising on such pleas
shall be heard and decided before evidence is
recorded affecting such defendant, on the
merits of the claim. If the court decides that
the subject-matter of the suit has not been
properly valued or that the fee paid is not
sufficient, the court shall fix a date before
which the plaint shall be amended in
accordance with the Court's decision and the
deficit fee shall be paid. If the plaint be not
amended or if the deficit fee be not paid within
the time allowed, the plaint shall be rejected
and the court shall pass such order as it deems
just regarding costs of the suit.
(3) A defendant added after issues have
been framed on the merits of the claim may, in
the written statement filed by him, plead that
the subject-matter of the suit has not been
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properly valued or that the fee paid is not
sufficient. All questions arising on such pleas
shall be heard and decided before evidence is
recorded affecting such defendant, on the
merits of the claim, and if the court finds that
the subject-matter of the suit has not been
properly valued or that the fee paid is not
sufficient, the court shall follow the procedure
laid down in sub-section (2).
Explanation.— Nothing in this sub-section
shall apply to a defendant added as a
successor or a representative in interest of a
defendant who was on record before issues
were framed on the merits of the claim and
who had an opportunity to file a written
statement pleading that the subject-matter of
the suit was not properly valued or that the fee
paid was not sufficient.
(4) (a) Whenever a case comes up before a
court of appeal, it shall be lawful for the court,
either on its own motion or on the application
of any of the parties, to consider the
correctness of any order passed by the lower
court affecting the fee payable on the plaint or
in any other proceeding in the lower court and
determine the proper fee payable thereon.
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Explanation .— A case shall be deemed to
come before a court of appeal even if the
appeal relates only to a part of the subject-
matter of the suit.
(b) If the court of appeal decides that the
fee paid in the lower court is not sufficient, the
court shall require the party liable to pay the
deficit fee within such time as may be fixed by
it.
(c) If the deficit fee is not paid within the
time fixed and the default is in respect of a
relief which has been dismissed by the lower
court and which the appellant seeks in 15
appeal, the appeal shall be dismissed, but if
the default is in respect of a relief which has
been decreed by the lower court, the deficit fee
shall be recoverable as if it were an arrear of
land revenue.
(d) If the fee paid in the lower court is in
excess, the court shall direct the refund of the
excess to the party who is entitled to it.
(5) All questions as to value for the purpose
of determining the jurisdiction of courts arising
on the written statement of a defendant shall
be heard and decided before evidence is
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recorded affecting such defendant, on the
merits of the claim.
Explanation.— In this section, the
expression “merits of the claim” refers to
matters which arise for determination in the
suit, not being matters relating to the frame of
the suit, misjoinder of parties and causes of
action, the jurisdiction of the court to entertain
or try the suit or the fee.
45. Thus the respondent/plaintiff is directed to file fresh
valuation slip and to pay deficit court fee within four
weeks from the date of receipt of certified copy of this
judgment.
46. A plain reading of said provision makes it amply clear
that, when the appellate court held that court fee paid
is insufficient; then, merely because the court fee paid
is insufficient, then the suit cannot be dismissed on
that ground. An opportunity is to be given to the
plaintiff to pay the deficit court fee and if he fails to do
so, then it shall be recoverable as if it is arrears of
land revenue.
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47. In this regard, learned counsel for the respondent
relies on the judgment of Division Bench of this Court
in the case of Venkatesh R. Desai Vs. Smt. Pushpa
8
Hosmani and others .
35. Accordingly, and in view of the above, we
are clearly of the view that by virtue of Section
11 of the Karnataka Court Fees and Suits
Valuation Act, 1958 read with Order XIV Rule 2
of the Code of Civil Procedure, 1908, when an
issue of valuation and/or Court fees is raised in
a civil suit on the objection of the defendant, the
same is not invariably required to be tried as a
preliminary issue and before taking evidence on
other issues; but could be tried as a preliminary
issue if it relates to the jurisdiction and the Trial
Court is of the view that the suit or any part
thereof could be disposed of on its
determination. The reference stands answered
accordingly.
48. In the instant case, the suit is filed before the Senior
Civil Judge Court, which has got pecuniary jurisdiction
to entertain the suit. All suits above the market value
8
ILR 2008 KAR 5095
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of ₹5,00,000/- shall be filed before Senior Civil Judge
Court. Hence there was pecuniary jurisdiction to
entertain the suit, even if the market value of more
than ₹10,00,000/-, the suit shall be filed before the
Senior Civil Judge Court. Hence the suit cannot be
dismissed on the ground of no pecuniary jurisdiction.
Under these circumstances, even though the issue
regarding court fee was not tried as preliminary issue,
the same is not fatal to the case of the plaintiff.
49. Learned counsel for appellants vehemently submitted
that, when once plaintiff permitted defendants to put
up construction of permanent nature in the suit
schedule property; then plaintiff is estopped from
revoking the license in favour of defendants and
immediately, the license given to defendants became
irrevocable. In this regard, he relied on Section 60 of
the Act, 1882, which deals with licenses.
50. Section 60 of the Act, 1882 is extracted below:
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60. License when revocable.—A license
may be revoked by the grantor, unless—
(a) it is coupled with a transfer of
property and such transfer is in force;
(b) the licensee, acting upon the
license , has executed a work of a
permanent character and incurred
expenses in the execution.
51. According to this Section 60(b) of the Act, 1882, when
the licensee acting upon the license has put up any
permanent structure, then the licensor is estopped
from revoking the license and the nature of license
would become permanent and irrevocable.
52. In this regard, learned counsel for appellants relied on
the judgment of Hon’ble Supreme Court in the case of
Ram Sarup Gupta (dead) by Legal
representatives Vs. Bishun Narain Inter College
9
and Others , wherein it is held as under:
Head Note (B) Easements Act (5 of 1882),
9
AIR 1987 SC 1242
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S.60(b)-Irrevocable licence-Revocation of-
Grant of license in respect of certain premises
and land attached thereto for running school-
Subsequently, the school acting upon licence,
made constructions on land without any
objection by licenser-Held, the licence being
irrevocable, the licenser or the transferee from
him could not revoke it or evict school.
53. In the instant case, in the plaint, plaintiff contended
that it has constructed the building and then it was
given to defendants. In this regard defendants have
produced the license, approved plan and some other
documents to show that first floor in suit schedule
property is constructed by the defendants. These facts
are not in serious dispute.
54. It is to be noted here that, while cross-examining
DW1, a suggestion was put to him that ground floor of
the building was constructed by plaintiff Institution,
which is denied by him. But there is no specific
suggestion that first floor of the building is also
constructed by the plaintiff. These facts clearly
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establish that defendants have put up construction of
first floor in the suit schedule property. Plaintiff has
not objected for such construction. Hence, whether
Section 60 (b) of the Act, 1882 applies to the facts of
present case or not is to be analyzed.
55. Since from beginning of the written statement and
even earlier to it, while giving reply to the termination
notice, defendants have never admitted that they are
licensees under plaintiff - licensor. When this
relationship of licensor and licensee is admitted, then
the Section 60(b) of the Act, 1882 will have its
application.
56. It is specifically stated in Section 60(b) of the Act,
1882, that when the licensee acting upon license
has executed a work of permanent character, then the
license became irrevocable.
57. In the present case, as discussed above, defendants
never admitted the ownership of plaintiff or that
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plaintiff is licensor and defendants are licensee.
However, according to them, they have taken
permission from one lessee – Basayya
Chennamallayya Yellapurmath and not from plaintiff to
put up construction in the suit schedule property.
When they have not acted upon the license, then they
are not entitled for the benefit available under Section
60(b) of the Act, 1882.
58. Accordingly, the substantial questions of law No.(i) is
answered in the Affirmative and substantial question
of law No.(ii) is answered in the Negative .
59. Hence, this Court pass the following:
ORDER
The appeal filed under Section 100 CPC is partly
allowed by modifying the judgment and decree dated
18.08.2015 passed by the Senior Civil Judge, Yallapur, in
O.S.No.31/2011 as under:
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i. Plaintiff is hereby directed to file fresh
valuation slip by valuing the suit schedule
property under Section 29 of the Act, 1958
as on the date of suit and to pay court fee
on that valuation slip within four weeks
from the date of obtaining certified copy of
the judgment;
ii. One year time is given to defendants to
vacate and hand over vacant possession of
suit schedule property to the plaintiff.
iii. Other portion of the judgment of Trial Court
is unaffected.
SD/-
(GEETHA K.B.)
JUDGE
SH- upto Para 4
SSP: Para 5 to 45
gab: Para 46 to end
List No.: 1 Sl No.: 25