Karnataka High Court
Sri. B. S. Revanna vs Smt. Puttathayamma on 12 November, 2025
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2025:KHC:46005
RFA No. 2550 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
REGULAR FIRST APPEAL NO.2550 OF 2023 (EJE)
BETWEEN:
SRI. B.S. REVANNA
S/O. LATE SIDDAIAH,
AGED ABOUT 44 YEARS,
R/AT NO.82, OLD NO.7/1,
21/1, ANJANEYA TEMPLE ROAD,
8TH CROSS, ITTAMADU,
BALAJINAGAR, BSK 3RD STAGE,
BENGALURU - 560 085.
...APPELLANT
(BY SRI. GANAPATHI BHAT VAJRALLI, ADVOCATE)
AND:
SMT. PUTTATHAYAMMA
W/O. LATE M. RAMEGOWDA,
SINCE DECEASED BY LR'S
Digitally 1(A) SRI. R. HARI PRASAD
signed by
MADHURI S S/O LATE RAMANNA
AGED ABOUT 65 YEARS
Location: R/AT BEVOORU CHANNAPATANA TALUK
High Court of BENGALURU SOUTH DISTRICT - 562 108.
Karnataka
1(B) SMT. VIJAYA LAKSHMI
W/O DUNDE GOWDA
AGED ABOUT 59 YEARS
R/AT NO.53, MIG-1, 6TH MAIN
K.H.B. COLONY, KANAKAPURA TALUK
BENGALURU SOUTH DISTRICT - 562 117.
...RESPONDENTS
(BY SRI. VIJAYKUMAR PRAKASH, ADVOCATE)
THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED 09.10.2023
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NC: 2025:KHC:46005
RFA No. 2550 of 2023
HC-KAR
PASSED IN OS NO.1626/2019 ON THE FILE OF XLI ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU., PARTLY DECREEING THE
SUIT FOR EJECTMENT.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL JUDGMENT
This appeal by the defendant in O.S.No.1626/2019 is directed against the impugned judgment and decree dated 09.10.2023 passed by the XLI Addl. City Civil & Sessions Judge, Bengaluru, whereby the said suit filed by the respondent - plaintiff for eviction / ejectment and other reliefs in relation to the suit schedule 'B' immovable property was decreed in her favour against the appellant.
2. For the purpose of convenience, parties are referred to by their respective ranks before the Trial Court.
3. A perusal of the material on record will indicate that the plaintiff instituted the aforesaid suit against the defendant for ejectment / eviction directing the defendant to quit and deliver vacant possession of the suit schedule 'B' immovable property to -3- NC: 2025:KHC:46005 RFA No. 2550 of 2023 HC-KAR the plaintiff and for other reliefs. The said suit having been contested by the defendant, who filed his written statement, the Trial Court framed the following issues:
"1) Whether the plaintiff proves that she is owner of the suit schedule-A and B properties?
2) Whether the plaintiff further proves that the defendant has forged the signature of Plaintiff and fabricated document in respect of 'B' schedule property?
3) Whether the Plaintiff further proves that the defendant is in unauthorized possession of 'B' schedule property?
4) Whether the defendant proves that he is in occupation of the 'B' schedule property under the lease agreement dated 21.04.2014 with the Plaintiff on refundable security deposit of Rs.8,00,000/-?
5) Whether the defendant further proves that he has invested amount of Rs.1,00,000/-
for repair and modification of 'B' schedule property with the consent of Plaintiff ?
6) Whether the defendant proves that Plaintiff is in due of Rs.13,00,000/- towards refundable security deposit and Rs.2,50,000/- towards repair and modification of the premises as contended in Para No.10 of written statement?
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7) Whether the plaintiff is entitled for reliefs sought for?
8) What order or decree?"
Note:
"Issue No.4 as framed above does not cover the contention of the defendant regarding another lease agreement dated 21.01.2013 on a refundable security deposit of Rs.5,00,000/-. Hence, Issue No. 4 is re- casted in the following manner:
"Whether the defendant proves that he is in the occupation of the B - schedule property under the lease agreement dated 21.04.2014 with the plaintiff on refundable security deposit of Rs.8,00,000/- and another lease agreement dated 21.01.2013 on are fundable security deposit of Rs.5,00,000/-.
Issue No.5:- Issue No.5 as framed above does not cover the contention of the defendant that he has invested a sum of Rs.1,50,000/- towards fixing the wall tiles rolling shutters etc., with the consent of the plaintiff. Hence, Issue No.5 is re-casted in the following manner:
"Whether the defendant proves that he has invested a sum of Rs.1,00,000/- for the repair and modification of written statement A-schedule property and further proves that he has invested a sum of Rs.1,50,000/- towards fixing the wall tiles, rolling shutters etc., of written statement B-schedule property, which together form the suit B- schedule property with the consent of the -5- NC: 2025:KHC:46005 RFA No. 2550 of 2023 HC-KAR plaintiff.
The above Issues i.e. issue Nos.4 and 5 have been recasted considering the pleadings of the parties and evidence recorded and in the exercise of the power under Order XIV Rule 5 which empower the Court to recast the issues at any stage of proceedings before passing the decree.
The recasted issues are modified in view of the pleadings of the parties and further, parties have already led evidence as if the recasted issues were already framed and the modification of the issues does not in anyway curtail the rights of any of the parties and the modified issues are only in order to ensure the matters in controversy are completely adjudicated."
4. The plaintiff examined her son / power of attorney holder as PW1 and documentary evidence at Ex.P1 to P32 were marked while defendant examined himself as DW1 and another witness as DW2 and Ex.D1 to D11 were marked on his behalf.
After hearing the parties, the Trial Court proceeded to pass the impugned judgment and decree in favour of the plaintiff against the defendant, who is before this Court by way of the present appeal.
5. Heard learned counsel for the appellant and learned counsel for the respondent and perused the material on record.
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6. The following points arise for consideration:
(i) Whether the Trial Court was justified in coming to the conclusion that the plaintiff was the owner of schedule A and B properties and that she was entitled to a decree for eviction / possession by directing the defendant to quit and deliver vacant possession of the suit schedule ' B' property to the plaintiff ?
(ii) Whether the impugned judgment and decree passed by the Trial Court warrants interference by this Court in the present appeal?
7. Reg. point No.(i) & (ii):
A perusal of the material on record including the impugned judgment and decree will indicate that the Trial Court has taken into the account the registered Sale Deed dated 11.10.2001 executed in favour of the plaintiff and other documents for the purpose of coming to the conclusion that the plaintiff was the absolute owner of the suit schedule property. While dealing with issue No.(i) in this regard the Trial Court has held as under:
"8. ISSUE NO.1: On careful perusal of the materials on hand reveals that PW1 who is holding power of attorney of his mother/plaintiff has filed his affidavit evidence by reiterating the material facts of plaint and produced the following documentary evidence.
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9. Ex.P.1 is power of attorney dated 21.01.2020 executed by plaintiff in favour of PW 1 to conduct this case. Ex.P.2 is certified copy of order sheet in CC.No.12364/2019 with respect to criminal case filed against defendant and two others for the offences punishable under Section 447, 465, 468, 471, 490 and 420 r/w 34 of IPC .Ex.P.3 is certified copy of charge sheet filed in CC.No.12364/2019 along with supporting documents.Ex.P.4 is certified copy of FIR inCr.No.373/2014 in pursuance to which the charge sheet was filed.Ex.P.5 is certified copy of letter dated 12.02.2019 issued by PSI, Channammanakere Acchukattu Police Station, wherein, Investigation Officer has called upon Assistant Revenue Officer, BBMP, T.R.Nagar for production of khatha extract with respect to property No.7/1 in pursuance to complaint filed by plaintiff. Ex.P.6 is certified copy of letter dated:
20.02.2019, wherein, the BBMP official has complied request of the Interim order granted earlier is extended till the next date of hearing. As made in Ex.P.5.Ex.P.7 is certified copy of katha extract with respect to suit property standing in the name of plaintiff .Ex.P.8 is certified copy of mahazar dated: 11.11.2014 drawn in CC.No.12364/2019. Ex.P.9 is statement of witness -
H.R.Vijayalakshmi .Ex.P.10 is certified copy of P.F.No.154/2014 dated: 11.11.2014 along with mahazar .Ex.P.11 is certified copy of statement of panch witness one C.Nagaraju in the said case .Ex.P.12 is certified copy of request letter dated -8- NC: 2025:KHC:46005 RFA No. 2550 of 2023 HC-KAR 19.11.2014 issued by PSI to Chairman,Chamundeswari Self Help Association, Kannasandra, Malur Hobli, Channapatna Taluk, Ramanagara District, calling upon them to produce documents bearing signature of plaintiff or the purpose of investigation,whereas,Ex.P.13 is certified copy of letter dated: 21.11.2014 issued by said Association to the Interim order granted earlier is extended till the next date of hearing. Complying his request submitting the documents bearing the signature of the plaintiff.Ex.P.14 is certified copy of P.F.No.163/2014 dated 22.11.2014 along with mahazar. Ex.P.15 is certified copy of P.F.No.13/2015 dated:17.01.2015 along with mahazar.Ex.P.16 is the acknowledgment for the receipt of articles issued by the Forensic Science Laboratory.Ex.P.17 is certified copy of further statement of plaintiff dated:25.03.2019. Ex.P.18 is certified copy of statement dated:
25.03.2019 of one Amit S/o Bavarlal Jain with whom the defendant is said to have mortgaged the original documents of plaintiff to avail loan of Rs.1,00,000/-.
10. Ex.P.19 is certified copy of sale deed dated 11.10.2001 in the name of plaintiff under which, she has purchased suit property.Ex.P.20 is encumbrance certificate with respect to suit property in the name of plaintiff.Ex.P.21 is 7 tax paid receipts with respect to suit property in the name of plaintiff.Ex.P.22 and P.23 are true copies of two complaints both dated
20.09.2014, filed by plaintiff with Channammanakere -9- NC: 2025:KHC:46005 RFA No. 2550 of 2023 HC-KAR Police against defendant.Ex.P.24 is endorsement dated 10.10.2014 issued by said police in response to complaint intimating her to approach the Civil Court with respect to dispute regarding property No.7/1,since the same is civil in nature.Ex.P.25 is true copy of FIR and complaint in Cr.No.373/2014 dated:
08.11.2014 making allegations against defendant regarding forgery of documents. Ex.P.26 is police notice dated 08.11.2014 issued by IO to the plaintiff to produce documents .Ex.P.27 is request made by plaintiff to ACP, Bengaluru, South for early decision of case filed in Cr.No.373/2014.Ex.P.28 is copy of legal notice dated:22.09.2018 issued by plaintiff to the defendant. Ex.P.29to31 are postal receipt, courier receipt and postal acknowledgement .Ex.P.32 is reply notice dated 05.10.2018 issued by defendant to the plaintiff in response to Ex.P.28.
11. Ex.P19 is the certified copy sale deed dtd 11.10.2001 executed in favour of the plaintiff by her vendors, Chandregowda and GPA holder of the Jayarame gowda namely Hariprasad .A careful perusal of these documents reveals that the re is no dispute about title of the plaintiff in the suit property and the plaintiff has laid foundation for relying on secondary evidence by demonstrating that the defendant is in possession of the original sale deed and in this behalf a criminal case bearing CCNo.12364/2019 is pending trial against the defendant. Further,Ex.P.7 is certified copy of katha
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NC: 2025:KHC:46005 RFA No. 2550 of 2023 HC-KAR extract with respect to suit property Standing in the name of plaintiff, Ex.P.20 is encumbrance certificate with respect to suit property standing in the name of plaintiff and Ex.P.21 are the 7 tax paid receipts with respect to suit property in the name of plaintiff from 2011-2012 to 2017-2018.
12. The defendant in support of his case produced the certified copy off our bills of Chicken Center as Ex.D1 to D4, Ex.D5 to D9 are the electricity bills with respect to the Chicken Center and Ex.D.11 is the reply notice sent by the defendant to the plaintiff's counsel.
13. These documents reflect that the defendant is in possession of the plaint schedule B premises which consists of A and B schedule properties as described in the written statement. In the reply notice at Ex.D11 the defendant has taken up the contention that he has Entered into the lease agreement dated 21.04.2014 in respect of the house property bearing old No.7/1, New No.82,groundfloor,consisting of two rooms, one kitchen, one hall, Bathroom and Toilet approximately measuring 15 x 30= 450 sq.feet Similarly, the defendant claims to have entered into the lease agreement with respect to the shop premises bearingNo.7/1,NewNo.82measuring10x80 feet = 80 feet, situated at Anjaneya Temple Road, Balajinagar, Bengaluru under the lease agreement dated:
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NC: 2025:KHC:46005 RFA No. 2550 of 2023 HC-KAR 21.01.2013.
14. It is the further contention of the defendant that the lease agreement was executed by the plaintiff with respect to the above properties on the basis of the agreement that there shall be no monthly rent, but, however, for a security deposit of a sum of Rs.8,00,000/-was given by him towards the written statement A scheduled property and the said amount is agreed to be returned on the defendant handing over the property to the plaintiff and the lease agreement dated: 21.01.2013 was for a security deposit of Rs.5,00,000/- which was to be returned at the time of vacating the written statement B-schedule property.
15. It is further contended that the lease agreement was initially for a period of three years, but the same was extended for a period of two periods i.e. six years. Thus, these averments together with the averments in the written statement and the reply notice which have been reiterated disclose that the defendant admits the ownership of the plaintiff and claims to be the tenant under the plaintiff. Therefore the plaintiff has proved that she is the owner of plaint A and B scheduled properties. Accordingly IssueNo.1 is answered in the Affirmative."
8. As can be seen from the aforesaid findings recorded by the Trial Court, the plaintiff had established her title over the suit
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NC: 2025:KHC:46005 RFA No. 2550 of 2023 HC-KAR schedule property, the defendant had not produced any legal or cogent evidence to disprove the title of the plaintiff and the said findings recorded by the Trial Court cannot be said to be illegal or improper warranting interference by this court in the present appeal.
9. While dealing with issue No.3 and recast issue No.4, the Trial Court held as under:
"19. Issue no. 3 and 4:- Since these issues are interconnected with each other, they are taken together for discussion, in order to avoid repetition of facts. The defendant having admitted the ownership of B scheduled property has contended that he is in the possession under the lease agreement dtd. 21.1.2013 and 21.4.2014 in respect of shop premises and house property respectively and as per the agreement the plaintiff has received a security deposit of RS.5,00,000/- and 8,00,000/- which is agreed to be returned at the time of handing over of the possession. It is further contended that the lease period was for three years and it has been extended for further term of six years on a mutual understanding. It is the specific contention of the plaintiff that the defendant who was initially inducted as a tenant with respect to B - schedule property on a monthly rent of Rs.10,000/- and and the defendant had stopped paying the rent and in this regard the plaintiff had lodged a police
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NC: 2025:KHC:46005 RFA No. 2550 of 2023 HC-KAR complaint before the Channammana Kere Achukattu Police Station Bengaluru at EX.P22 and thereafter the defendant had filed a complaint at EX.P23 stating that he was in possession by virtue of the lease agreements and plaintiff had threatened him with dire consequences and later on the plaintiff on realization of the factum of forgery and fabrication had filed another complaint at EX.P25 against the defendant which culminated in the filing of the charge sheet as per Ex.P3. Later on it is contended by the plaintiff that the defendant with the intervention of the friends and relatives had vacated the suit premises. Subsequently the plaintiff had locked the suit premises and went to her village. However, on 18.09.2018 when plaintiff had come to Bengaluru and visited the suit schedule property, she found that the defendant had trespassed into the schedule premises by breaking open the lock and had threatened the plaintiff with dire consequences and in this regard the plaintiff got issued legal notice to the defendant calling upon him to quit and deliver the vacant possession of the schedule premises. Thereafter, the defendant had given an untenable reply. Thus, it is vehemently contended that the defendant having no manner of right, title or interest over the B schedule property had occupied the suit schedule property without permission of the plaintiff.
20. The learned counsel for the defendant has argued that there is no coherence in the plaint with regard to the cause of action as on the date of suit and the cause of action pleaded in the plaint is illusory as the plaintiff
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NC: 2025:KHC:46005 RFA No. 2550 of 2023 HC-KAR has filed a criminal complaint in Crime No.373/2014 alleging criminal trespass and forgery but the suit is filed in the year 2018. On the careful evaluation of the evidence it appears that the defendant having admitted the title of the plaintiff with respect to plaint scheduled B property and the defendant has not produced the alleged lease agreements to establish his possession over the B scheduled property. Besides the defendant DW1 has specifically admitted during cross examination that he is in the possession without paying any rent. This admission itself proves the unauthorized occupation of the defendant over B scheduled property.
21. In order to appreciate the case of the defendant, it is necessary to refer to the Judgment of the Apex Court in H.Siddiqui (Dead) by LRS V. A ramalingam reported in (2011) 4 SCC 240 wherein the Hon'ble Court has held as under;
"12. The provisions of Section 65 of the 1872 Act provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an
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NC: 2025:KHC:46005 RFA No. 2550 of 2023 HC-KAR obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide Roman Catholic Mission v. State of Madras , State of Rajasthan v. Khemraj, LIC v. Ram Pal Singh Bisen and M. Chandra v. M. Thangamuthu).
22. Further it is necessary to refer to the judgment in Ashok Dulichand v. Madhavial Dube and Another reported in 1975 (4) SCC 664 where in the Apex Court has held as under;
"7.After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to clause
(a) of Section 65 of the Indian Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to the process of the court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it. Clause (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given...."
23. It is also fruitful to refer to the judgment in Rakesh Mohinder v. Anita Beri and others (2016)16 SCC 483, wherein the Apex Court has held as under;
"15.The preconditions for leading secondary evidence are that such original documents could not be produced by the party relying upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce the secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original document is lost or destroyed or is being deliberately withheld by the party in respect of the document sought to be
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NC: 2025:KHC:46005 RFA No. 2550 of 2023 HC-KAR used, secondary evidence in respect of that document cannot be accepted."
24. In this context it is relevant to extract the provisions of Section 63, 64 and 65 of the Indian Evidence Act reads as under;
Section 63 Secondary Evidence Secondary evidence means and includes (1) Certified copies given under the provisions hereinafter contained;
(2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies; (3) Copies made from from or compared with the original;
(4) Counterparts of documents as against the parties who did not execute them;
(5) Oral accounts of the contents of a document given by some person who has himself seen it.
Section 64: Proof of documents by primary evidence- Documents must be proved by primary evidence except in the cases hereinafter mentioned.
Section 65: Cases in which secondary evidence relating to documents may be given: Secondary evidence may be given of the existence, condition or contents of the document in the following cases-
(a) when the original is shown or appears to be in the possession or power-of the person against whom the document is sought to be proved, or any person out of reach of, or not subject to, the process of the court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by its representative in interest;
(c) When the original has been destroyed or lost
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NC: 2025:KHC:46005 RFA No. 2550 of 2023 HC-KAR or when the party offering evidence of its contents cannot, or any other reason not arising from his own default, or neglect, produce it in reasonable time;
(d) When the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of Section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;
(g) when the original consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
In cases (a),(c) and (d),any secondary evidence of the contents of the document is admissible.
In case (b),the written admission is admissible.
In case (e) or (f),a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents .
25. The defendant in order to prove his lawful possession over the B scheduled property consisting of a house and a shop has not produced any documentary evidence. Although, he has lead the evidence of DW.2, who is a witness who has lent him a sum of Rs.4,00,000/- as hand loan for the payment of the security deposit under the lease agreement entered with the plaintiff. The said witness has not at all stated anything regarding the execution of the lease agreement by the plaintiff, however during the course of his cross-examination he has admitted that he has seen the defendant handing over a sum of Rs.13,00,000/- to the plaintiff, but he has
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NC: 2025:KHC:46005 RFA No. 2550 of 2023 HC-KAR admitted that he along with the defendant are accused persons in Cr.No.373/2004. The Defendant cannot place reliance on the evidence of the DW2 Venkatappa, for the prove of lease transaction between the plaintiff and defendant as he admittedly has not stated anything regarding the contents of the alleged lease deed in his chief examination and his evidence affidavit is confined to lending money of Rs.4,00,000/- to the defendant for the payment of lease amount to the plaintiff and therefore his evidence is limited for the appreciating it under Section 7 and 8 of the Indian Evidence Act. No doubt, the defendant is claiming to be in possession based on the lease deeds, but nothing prevented him to produce the certified copy of the lease agreements in order to justify his claim and there is absolutely no material to demonstrate the efforts made by the defendant to procure the documents from the court custody as an accused to the proceedings arising Out of Crime NO.373/2014 he was very much entitled to procure the documents which are the part of the charge sheet. Further, foundation laid in the evidence of DW.1 in order to lead secondary evidence is not satisfactory and in compliance of the Section 65 of the Indian Evidence Act so also to enable him to give oral accounts of the contents of a document. DW1 has only stated in his chief examination that the original lease agreement is in police station. The oral evidence of DW.1 and 2 do not establish the contents of the alleged lease agreement or the genuineness of the alleged documents relied upon by the defendant. DW.2
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NC: 2025:KHC:46005 RFA No. 2550 of 2023 HC-KAR during his cross examination has only stated that he is the witness to the document, but the contents are not narrated either during the course of his evidence. Therefore none of the requirements of Secondary evidence as required under Section 65 Indian Evidence Act are met. It is also matter of record that along with DW.1,DW.2 is also arrayed as accused in the Criminal Case. Further the documents on which the defendant is relying are disputed by the plaintiff and Criminal Case is pending in this regard, the defendant has also failed to establish the genuineness of the documents. However it is relevant to note that despite the fact that the plaintiff has been unable to prove that the alleged lease deeds setup by the defendant are forged and fabricated and the plaintiff is successful in proving that the defendant is in unauthorized possession. Thus the contention of the defendant that there is no cause of action is not sustainable as the period prescribed by filing the suit for possession is 12 years under Article 65 of the Limitation Act. At this stage it is relevant to refer to the judgement of the Apex Court in Ravinder Kaur Grewal and others v. Manji tKaur and others (2019) 8 SCC 729:
"56 There is a acquisition of title in favour of the plaintiff though it is negative conferral of right on extinguishment of the right of an owner of the property. The right ripened by prescription by his adverse possession is absolute and on dispossession, he can sue based on the title as envisaged in the opening part under Article 65 of the Act. Under Article 65, the suit can be filed based on title for recovery of possession within 12 years of the start of adverse possession, if any, setup by the defendant. Otherwise right to recover
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NC: 2025:KHC:46005 RFA No. 2550 of 2023 HC-KAR possession based on the title is absolute irrespective of limitation in the absence of adverse possession by the defendant for 12 years. The possession as trespasser is not adverse nor long possession is synonymous with adverse possession.(EmphasisSupplied)
26. Thus it is clear from the conjoint reading of Article 65 of the Limitation Act and the ratio laid down by the Apex Court in the aforesaid judgment that in a suit of this nature if the question of limitation is raised by the defendant, he must have taken a plea with regard to his possession being Adverse to the possession of the plaintiff and if he does not raise such a contention and if the suit of the plaintiff is based on his title, the suit has to be decreed. Thus the contentions of the defendant that there is no cause of action as on the date of suit or the suit is barred by limitation is not sustainable. Yet another vein of argument advanced by the plaintiff is that the defendant had filed O.S.No.8987/2018 seeking the relief of injunction and the suit has been decreed. But the said suit is decreed subject to eviction in accordance with due process of law. Further it is a well settled law that the instant suit being a comprehensive suit cannot be guided by the findings and observations of the court passed by the court granting the relief of injunction in favour of the defendant. Hence the plaintiff has established that the defendant is in unauthorized possession of B Scheduled property. Accordingly Issue No.3 is answered in the Affirmative as the plaintiff has proved that he is the owner of the suit schedule property and defendant is in
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NC: 2025:KHC:46005 RFA No. 2550 of 2023 HC-KAR unauthorized possession of the B - schedule property and issue no.4 is answered in negative."
10. The Trial Court has correctly and properly considered and appreciated the material on record and has come to the correct conclusion that the defendant had failed to establish that he was in occupation of the 'B' schedule property under Lease Agreement dated 21.01.2013 and 21.04.2014 by paying refundable security deposit of Rs.5 lakhs and Rs.8 lakhs respectively and that the defendant was in unauthorised possession and enjoyment of the suit 'B' schedule property. Even these findings recorded by the Trial Court on issues 3 and 4 cannot be said to suffer from any illegality or infirmity warranting interference by this court in the present appeal.
11. Insofar as issues 5, 6 and 7 are concerned, the Trial Court has held as under:
"27. Issue Nos.5 and 6:- It is the specific contention of the defendant that he has invested a sum of Rs.1,00,000/-for the repair and modification of the written statement A - schedule property with the consent of the plaintiff and similarly, he has invested Rs.1,50,000/-towards fixing of walls, rolling shutters, gatesetc., in the written statement B - scheduled
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NC: 2025:KHC:46005 RFA No. 2550 of 2023 HC-KAR property together he had invested Rs.2,50,000/- and the defendant relying on the lease agreement alleged to have been executed by the Plaintiff in favour of the defendant on 21.04.2014 with respect to A-schedule property and on 21.01.2013 with respect to B - schedule property had handed over the security deposit amount of Rs.13,00,000/- to the plaintiff wherein he had agreed to return the said amount at the time of vacating the suit schedule premises. The defendant has not filed any counter-claim seeking the refund of security deposit amount.
28. As regards the payment of Rs.13,00,000/- is concerned there is no documentary evidence to establish the same. Further, there is no evidence which is worthwhile to establish that a sum of Rs.13,00,000/-was handed over to the plaintiff towards security deposit of A and B schedule properties. No evidence is forthcoming to establish any foundation for adducing secondary evidence with regard to the alleged lease agreement. The evidence of DW.2 who claims to be the witness to the lease agreement has not established the contents of the lease agreement. Except stating that there was a witness to the transaction, the contents of the lease agreement are not forthcoming from the evidence of DW.s1 and 2. Therefore, in the absence of any evidence, this court cannot hold that the plaintiff is due for a sum of Rs.13,00,000/-.
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NC: 2025:KHC:46005 RFA No. 2550 of 2023 HC-KAR
29. Similarly, there is no evidence to prove that the defendant has spent a sum of Rs.1,00,000/- towards the repair and modification of A - schedule property and Rs.1,50,000/- towards wall tiles, rolling shatters, fixing of gates, re-fitting of electricity connection and also painting of B-Schedule property as contended in the written statement. Further DW1 has categorically admitted that he has not obtained any acknowledgment from the plaintiff for affecting repairs and modification in the B scheduled property. Thus, there is no documentary evidence to substantiate the claim of the plaintiff. The defendant has utterly failed in establishing his claim towards the security deposit and the counter-claim towards the repair and modification. Accordingly Issue Nos.5 and 6 are answered in the Negative.
30. Issue No.7:- The ownership of the plaintiff is admitted by the defendant. The defendant has admitted that he is a tenant under the plaintiff. The defendant has failed to establish that he is in possession of the B-schedule property on the basis of the lease agreement dated 21.01.2013 and 21.4.2014. The plaintiff has established that the defendant is in unauthorized possession of the B - schedule property and as such, the plaintiff is entitled for the relief of possession as sought by him. As regards the prayer of the plaintiff with regard to prayer No.2 seeking direction against the defendant to deliver the original sale deed of a-schedule property, the plaintiff has
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NC: 2025:KHC:46005 RFA No. 2550 of 2023 HC-KAR produced the certified copy of the sale deed of A- schedule property at Ex.P19 during the course of his evidence and the plaintiff has stated that the original of the document is in the custody of the defendant.
31. It is the case of the plaintiff that the defendant who is the nephew of the plaintiff, taking undue advantage of his relationship with the plaintifand her gullibility, he had taken the original sale deed of the property of the plaintiff and pledged the same with Poonam Jewellers, Hanumanthanagar, Bengaluru by receiving loan of Rs.1,00,000/- and thereafter he had taken back original sale deed from Poonam Jewellars in collusion with his brother B.S. Ravi and had delivered the same to the plaintiff and in this regard the plaintiff had filed complaint before the Channammanakere Acchukattu P.S. on 20.09.2014 at Ex.P22 and the police officials had enquired the same by summoning the defendant and the defendant had denied the custody of the sale deed in his possession in his complaint at Ex.P23 and also during his cross examination. The plaintiff in his pleadings has not pleaded material averments regarding the undue influence exerted by the defendant in order to prove the allegation of the dishonest intention of the defendant in procuring the original title deed of the plaintiff from the custody of the plaintiff and handing it over to the custody of Poonam Jewellers for the purpose of obtaining loan and subsequently, seeking delivery of the same without the knowledge of the
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NC: 2025:KHC:46005 RFA No. 2550 of 2023 HC-KAR plaintiff. Further, the plaintiff has relied upon the statement of Amith Bansilal Jain in C.C.NO.12364/2019 which is marked at Ex.P18 where in the said witness to the charge sheet has stated that on 12.03.2013 the defendant had approached him and had taken back the original sale deed and in this regard he had issued an endorsement dated 13.03.2013. It is noted that the said statement of the witness is part of the charge sheet filed against the defendant with respect to criminal case regarding the forgery, cheating and trespass. The Plaintiff has relied on the statement and the endorsement issued by the defendant, the said witness has not been examined in the present case and therefore, it is very difficult to believe that the custody of the original sale deed is in possession of the defendant. Besides, PW1 has admitted that no complaint was filed against the Poonam Jewellers for wrongly releasing the documents in favour of the defendant and his brother.It is also a matter of record that the defendant herein is simultaneously being prosecuted on the allegation of cheating for the offences punishable under 419 and 420 IPC in CC No. 12364/2019 and if the plaintiff succeeds in the criminal case she may obtain the required relief thereat. But in this proceeding in the absence of any substantive evidence to demonstrate that the defendant is in the actual possession of the original sale deed of the plaintiff no relief can be granted. No grounds are made out to grant relief.
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NC: 2025:KHC:46005 RFA No. 2550 of 2023 HC-KAR Accordingly, the plaintiff is not entitled for the second relief sought by him. Upon perusal of the evidence, it is found out that the plaintiff has tried to elicit from DW1 that if the plaint B scheduled was leased in favour of third persons then it would have generated Rs.25,000/- of rental income p.m. but the witness has replied it would have generated only 15,000/- of rent p.m and relying on this admission the plaintiff has prayed for mesne profits but no prayer and no pleadings are available to that effect in the plaint and therefore in the absence of any specific pleading and relief the court cannot be expected to travel beyond the pleading and thus no relief of mesne profits can be granted. Hence, the suit of the plaintiff is entitled to be decreed in part. Issue No.7 is answered accordingly."
12. As can be seen from these findings also, the Trial Court has considered and appreciated the rival contentions and recorded findings of fact based on pleadings and evidence, which also cannot be said to suffer from any illegality or infirmity as sought to be contended by the defendant.
13. Upon re-appreciation, reconsideration and reevaluation of the entire material on record, I am of the considered opinion that the impugned judgment and decree cannot be said to suffer from any illegality or infirmity nor can the same be said to have
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NC: 2025:KHC:46005 RFA No. 2550 of 2023 HC-KAR occasioned failure of justice warranting interference by this Court in the present appeal.
14. In the result, I pass the following:
ORDER I) The Appeal is hereby dismissed.
II) The impugned judgment and decree dated 09.10.2023 passed in O.S.No.1626/2019 by the XLI Additional City Civil and Sessions Judge at Bengaluru (CCH-42), is hereby confirmed.
III) However, in order to enable the appellant to make alternative arrangements and to shift from the suit schedule premises, the appellant is granted time upto 31.05.2026 to voluntarily quit and deliver vacant possession of the suit schedule premises to the respondents, subject to the appellant filing an undertaking in this regard, within a period of four weeks from today, unconditionally undertaking to voluntarily quit and deliver vacant possession of the suit schedule premises to the respondents on or before 31.05.2026, without driving the respondents to file execution proceedings. The said affidavit to be filed by the appellant for the purpose of granting time should contain the following details:-
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NC: 2025:KHC:46005 RFA No. 2550 of 2023 HC-KAR
a) The appellant shall voluntarily and unconditionally quit and deliver vacant possession of the suit schedule premises to the respondents on or before 31.05.2026.
b) The appellant shall not sublet, underlet, part with possession or induct third parties into possession of the suit schedule premises till the appellant hands over vacant possession of the suit schedule premises to the respondents.
c) Liberty is reserved in favour of the appellant to institute separate proceedings to recover refund of the alleged advance amount, damages, etc., against the respondents in relation to the suit schedule premises; in the event the appellant institutes such proceedings, the same would be subject to all just exceptions and defences available to the respondents, who would be entitled to contest the same in accordance with law.
No order as to costs.
Sd/-
(S.R.KRISHNA KUMAR) JUDGE Bss / SV List No.: 1 Sl No.: 5