CHELUVAMMA POOJARTHI Vs. BIRMANNA POOJARY

JUDGEMENT

(1.) this is defendant's second appeal from the judgment and decree dated 12th november, 1984, passed by the principal civil judge, mangalore, in regular appeal No. 58 of 1982 (Cheluvamma Poojarthi v. Birmanna Poojary) dismissing her appeal and confirming the judgment and decree dated 15th april, 1982, passed by the principal munsiff, karkala, in o.s. No. 2 of 1976, whereby the learned munsiff decreed the plaintiffs (respondent's) suit for possession and for arrears of rent and damages.

(2.) the facts of the case in brief are:the plaintiff/respondent filed the suit for possession of a tiled house situate in survey No. 228/2 of miyar village, for arrears of rent from 31-1-1974 to 31-3-1975, for mesne profits from 1-4-1975 to 30-11-1975, for mesne profits during the pendency of the suit and for costs. According to the plaintiffs/respondent's case, the plaintiff/respondent purchased the land under the registered sale deed dated 27-8-1959 and after having purchased the same, his case is, he constructed a tiled house, compound wall, dug a well and planted about 35 coconut trees. According to the plaintiff he has been in possession of the house and the land ever since the purchase. He was residing in the house for sometime after its construction. Thereafter, the defendant who had no house requested him to let that out on rent to her on a monthly rent of Rs. 8/- and so it was leased out to her on the assurance that whenever he the plaintiff requires the house she would vacate the same. A rent note was executed as well. Further, according to the plaintiff, the defendant paid the rent till december, 1973 and obtained receipts from him. Thereafter, the defendant failed to pay the rents from january 1974 inspite of repeated demands. The plaintiffs case is that by the notice dated 10-3-1975 through his counsel the defendant was called upon to pay the arrears of rent and vacate the premises and thus the tenancy was terminated. But, the defendant did not comply with the notice and gave a false and evasive reply. She alleged that the tenancy is chalgeni tenancy. Therefore, the plaintiff was constrained tofile the suit for ejectment and recovery of the arrears to rent. It is also the case of the plaintiff that the said notice was served on the defendant on 13-4-1973, i.e., the date of rent. The tenancy or the building lease was terminated on with effect from 31-3-1975. The defendant contested the suit by filing her written statement. She denied to have taken the said house on rent and to have promised to vacate the same. She also denied the rent note to have been executed and the alleged that the note is frivolous and false and a concocted one. A plea was also taken by the defendant that the said notice was not legal and proper. She further took up the plea that her husband had taken the land bearing survey No. 228/2 on an annual rent of Rs. 25/- and he had also paid a sum of Rs. 200/- as advance. She has further stated that the chalgeni rent was paid till the end of 31-3-1974. It has also been pleaded in the written statement that the suit house and the land in question had vested in the state government since 1-3-1974 as survey No. 228/2 was an agricultural land and on this score she contended that the trial court had no jurisdiction to entertain the suit and it was the land tribunal or by competent to decide the question of tenancy. She asserted that her husband anni poojary has filed an application declaration in respect of the land before the tribunal claiming occupancy rights and that it is pending. On the basis of the pleadings of the parties the trial court framed the following issues:

(3.) the defendant having felt aggrieved by the judgment and decree of the lower appellate court confirming the trial court's judgment and decree has preferred this second appeal under Section 100 of the Code of Civil Procedure.