Bangalore District Court
Sri.Thimmaiah vs Sri.Mudalaiah @ Sannamari on 8 June, 2018
IN THE COURT OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE
AT BANGALORE CITY - CCH No.23.
DATED THIS THE 8th DAY OF JUNE, 2018
PRESIDING OFFICER
PRESENT: Sri. Sadananda M. Doddamani.,
B.A.,L.LB.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
O.S.No.4947/2014
PLAINTIFF/S: Sri.Thimmaiah,
S/o Late Thimmaiah,
Aged about 57 years,
R/at No.631, 5th main,
5th cross, Kamalanagar,
Bengaluru - 560 079.
(By Sr i.MVC, Advocate)
--Vs.---
DEFENDANT/S: Sri.Mudalaiah @ Sannamari,
S/o Late Thimmaiah,
Aged about 51 years,
R/at No.631, 5th main,
5th cross, Kamalanagar,
Bengaluru - 560 079.
(By Sri.SAR, Advocate)
2 O.S.No.4947/2014
Date of institution of suit : 03.07.2014
Nature of suit : Declaration & possession
Date of commencement
of recording of evidence : 29.03.2016
Date on which the judgment
was pronounced : 08.06.2018
Duration of the suit: year/s month/s day/s
03 11 05
* * * * *
JUDGMENT
This is a suit filed by the plaintiff against the defendant seeking the relief of declaration and direction to the defendant to quit and hand over the vacant possession of the suit schedule property.
2. In brief the case of the plaintiff is as under:
That the plaintiff is the absolute and sole owner of the suit schedule property bearing house property No.631, 5th main road, 5th cross, Kamalanagar, 3 O.S.No.4947/2014 Bengaluru-79, measuring 18 feet x 33 feet. It is further contended that the said property was allotted to the plaintiff by Government of Karnataka under "Ashraya Yojana" scheme by free of cost. It is further contended that "Hakkupatra bearing No.15713 dated 21/5/1992 issued by the government is stands in the name of plaintiff. It is further contended that the plaintiff was constructed 3 small asbestos sheet houses of 1 square each in the site allotted to him. It is further contended that the plaintiff had taken the water and electricity connection to his property and they are standing in his name. It is further contended that the khatha of the suit schedule property stands in the name of plaintiff and he has been paying upto date taxes to the BBMP every year without fail. It is further contended that the defendant is the own brother of plaintiff and he is now working at BSNL as lineman. During the year 2005 the defendant had requested the plaintiff to give one portion of the house which was constructed in the suit schedule property for monthly 4 O.S.No.4947/2014 rent. Since the defendant is his own brother, the plaintiff keeping in mind the blood relationship and also on humanitarian ground the plaintiff has agreed to give centre portion of the house to the defendant as a permissive occupant and the plaintiff has refused to take any advance or rent from the defendant and no rental agreement or any kind of documents are executed between the parties. It is further contended that the defendant and his family occupied the house which is described in the schedule of the plaint. After occupying the schedule property the defendant for sometime has paid the rents regularly by way of cash thereafter he was irregular in payment of rents. It is further contended that the suit schedule property was required by the plaintiff for his family necessities. Hence he has asked the defendant to quit and vacate the suit schedule premises. Initially the defendant agreed to vacate, but postponed the same without any valid reasons and failed to vacate as promised by him. It is further contended that since the defendant has 5 O.S.No.4947/2014 failed to vacate the schedule premises, as such the plaintiff has filed the suit for ejectment against the defendant in S.C.No.1044/2013 before the court of Small Causes, Bengaluru. The court by its judgment and decree has dismissed the suit on the ground of no jural relationships between the parties.
3. It is further contended that though the defendant is in possession of the suit schedule premises as a tenant, but he has disputed the same. The defendant has disputed his status as a tenant, as such, the possession of the defendant over the suit schedule premises is nothing but illegal and he is a trespasser. As such the defendant has no locus standi to remain in possession. It is further contended that the plaintiff has paid the proper court fee, etc. On these grounds and among other grounds he has come up with the present suit and accordingly prays for to decree the suit.
6 O.S.No.4947/2014
4. The suit summons sent by this court was duly served upon the defendant and he has appeared before the court through his counsel and filed his detailed written statement by denying all the plaint averments.
5. The defendant in his written statement contended that at the outset the suit of the plaintiff is not maintainable both in law and facts, as such, the same is liable to be dismissed in limine with exemplary cost. It is further contended that the suit for declaration and possession against the co-owner of the plaintiff by another co-owner is not permissible under law, since the suit schedule property is joint family property and the same was granted by the government for the benefit of the family in the name of elder son, i.e., plaintiff herein. He has not disputed the factum of suit schedule property was allotted by Government of Karnataka under "Ashraya Yojana" in the name of plaintiff. So also he has not disputed the factum of he 7 O.S.No.4947/2014 is working at BSNL Limited. He further contended that the suit of the plaintiff is not maintainable in view of non-joinder of necessary parties. He further contended that the plaintiff has deliberately not arrayed his younger brother Kemparaju as a party to the present suit. It is further contended that except suit for partition, the present suit is for declaration against the defendant who is the co-owner of the suit schedule property is not maintainable and the same is deserves to be dismissed.
6. It is further contended that the suit schedule property was granted by the Government of Karnataka under Ashraya Scheme in the name of plaintiff for the benefit of the family. As on the date of the grant the plaintiff was working at "THE GLENMORGAN TEA ESTATES COMPANY, Nilgiri district, Ooty, Tamil Nadu. Originally the above said property was in possession of one Kempanna. The defendant and the plaintiff occupied the possession of 8 O.S.No.4947/2014 the said property by paying the amount of Rs.5,000/- to the said Kempanna in the year 1980. In the year 1982-83 the Government has acquired Sy.No.46 of Saneguruvanahalli and other properties and formed a residential site under Ashraya Scheme. The government was considering the earlier possession of the plaintiff and the defendant over the portion of the site referred above in the above said survey number was granted site No.631 measuring 18 x 33 feet in the name of plaintiff who is the eldest person and kartha of the family. The said site was granted for the benefit of joint family and not absolutely for the plaintiff. Soon thereafter the plaintiff and defendant constructed 3 absestos sheet houses in the said property.
7. It is further contended that this being the actual true facts and circumstances, the plaintiff has filed false case before the Court of Small Causes for ejectment in S.C.No.1044/2013 to knock off the property granted by the government for the benefit of 9 O.S.No.4947/2014 family by taking advantage of title deed in his name. The plaintiff admitted that he is the kartha of the family and also admitted that there is no partition among the members of the family till date at the time of his examination in S.C.1044/2013. The plaintiff has also admitted that he was working at THE GLENMORGAN TEA ESTATES COMPANY, Nilgiri district, Ooty, Tamil Nadu, for 20 years as coolie from 1977. This admission is evident that the property bearing No.631 was granted for the benefit of the family in the year 1992 by considering the possession of the defendant over the said property from the year 1980. By considering all these true facts, the Court of Small causes dismissed the suit filed by the plaintiff for ejectment in S.C.No.1044/2013. It is further contended that there was no impediment for the plaintiff to file appeal against the judgment and decree in S.C.No.1044/2013, if the contention raised by the plaintiff is true in the present suit. The plaintiff instead of filing suit for partition has filed this frivolous 10 O.S.No.4947/2014 suit against the defendant which is not maintainable, since the defendant is a co-owner of the suit schedule property. Viewed from any angle the suit of the plaintiff for declaration is not maintainable in the eye of law, etc. On these grounds and among other grounds he sought for the dismissal of the suit.
8. The learned counsel for the plaintiff and defendant filed their written arguments.
9. On the basis of the above rival pleadings of the parties this court has framed the following as many as six issues :
ISSUES (1) Whether the plaintiff proves that he is the absolute owner of the suit schedule property ?
(2) Whether the plaintiff is entitled for
vacant possession of the suit
schedule property ?
11 O.S.No.4947/2014
(3) Whether the defendant proves that
the suit schedule property is the joint family property and the same was granted by the Government for the benefit of the family in the name of plaintiff as contended by him in his written statement ?
(4) Whether the defendant proves that the suit of the plaintiff is bad for non-
joinder of necessary parties ?
(5) Whether the plaintiff is entitled for the reliefs as sought by him ?
(6) What order or relief ?
10. The plaintiff in order to establish his case, he himself got examined as PW1 and got marked 7 documents from Ex.P1 to Ex.P7 and closed his side evidence. The defendant in order to establish his case he himself got examined as DW1 and got marked as many as 10 documents from Ex.D1 to Ex.D10 and closed his side evidence.
12 O.S.No.4947/2014
11. My findings to the above said issues are as under:
Issue No.1 : In the Negative
Issue No.2 : In the Negative
Issue No.3 : In the Affirmative
Issue No.4 : In the Negative
Issue No.5 : In the Negative
Issue No.6 : As per the final order
for the following:
REASONS
12. Issue No.1 to 3: Since all these three
issues are interconnected, therefore they have been taken together for common consideration and discussion in order to avoid repetition of facts and also for the sake of convenience.
13. The plaintiff in order to establish his case he himself got examined as PW1 and filed his affidavit by way of examination-in-chief as PW1. PW1 in his evidence stated that he is the absolute owner of the 13 O.S.No.4947/2014 suit schedule property bearing No.631, 5th main road, 5th cross, Kamalanagar, Bengaluru, measuring 18 feet x 33 feet and the same was allotted to him by the Government of Karnataka under the Ashraya Scheme by free of cost on 21/5/1992 and also "Hakkupatra" was issued bearing No.15713 stands in his name. He further stated that he constructed three small asbestos sheet houses of about 1 square each on the said site and also he has obtained water and electricity connection to the houses and they are standing in his name. He further stated that he also obtained khatha in his name in respect of the suit schedule property and he himself paying taxes to the BBMP every year without fail.
14. He further stated that the defendant is his own brother and is working as lineman in BSNL. During the year 2005 the defendant had asked him to give any one of the three houses constructed on the suit schedule property for monthly rental basis. Since 14 O.S.No.4947/2014 the defendant did not get any house for rent suitable to his financial conditions and moreover he was in urgent need of a house to shift his family, as such, he thought it would be better to give the suit schedule property to his brother defendant and also with an intention to live together and have cordial relationship in their families. He further stated that the defendant had informed that he will vacate the house if he is transferred to some other place or if he finds any suitable house. It is further contended that he gave centre portion of the house in the suit schedule property to the defendant as a permissive occupant. He further contended that he has not taken any advance amount from the defendant or demanded the rent from him and also there is no rental agreement or any kind of documents were executed between them. He further stated that after occupying the house in the suit schedule property, the defendant was used to pay the nominal rent as he thinks fit to give him regularly by way of 15 O.S.No.4947/2014 cash. After sometime he was irregular in payment of rents.
15. He further stated that in the first week of November 2012 he had requested the defendant to vacate the house given to him in the suit schedule property, in order to accommodate his younger son Suresh and his family in that house. The defendant has agreed to vacate the house and sought sometime to do so. But the defendant thereafter started to postpone vacating the house. He further stated that since the defendant has failed to vacate the suit schedule property as such he filed a suit for ejectment against the defendant in S.C.1044/2013 before the court of Small Causes, Bengaluru and the said suit was dismissed on the ground of no jural relationship between them. He further stated that the centre portion of the house in the suit schedule property in which the defendant has been occupied is belongs to him, but now the defendant has disputed his status as 16 O.S.No.4947/2014 a tenant. Even after he requested him to vacate and handover the possession of his house, but the defendant has refused to do so. The occupation of the suit schedule property by the defendant is illegal and he is a trespasser. He further contended that he made all efforts to take back possession of the house but all his efforts went in vain. In support of his case he got marked 7 documents from Ex.P1 to Ex.P7. So in view of his above oral and documentary evidence he prays for to decree the suit.
16. The defendant in order to establish his case, he himself got examined as DW1 and filed his affidavit by way of examination-in-chief wherein he reiterated all the averments made in the written statement. DW1 further on oath stated before the court that he himself and his two brothers, i.e., plaintiff and another brother by name Kemparaju constitute the joint family and they were still living as joint family members. He further stated that there has been no partition in the 17 O.S.No.4947/2014 joint family properties till this date in their family. He further stated that the suit schedule property was originally in possession of one Kempanna. He further stated that he himself and plaintiff took possession of the suit schedule property in the year 1980 after paying the sum of Rs.5,000/- to the said Kemparaju. He further stated that the Government of Karnataka in the year 1982-83 acquired Sy.No.46 of Saneguruvanahalli (wherein the suit schedule property is situated) among other properties to form residential sites under Ashraya Scheme. He further stated that the Government of Karnataka considering the fact that he himself and the plaintiff were in possession of the suit schedule property prior to its acquisition, allotted the suit schedule property under the Ashraya scheme in the year 1992 in the name of plaintiff, as he is the eldest person and the kartha of joint family.
17. He further stated that the grant of the suit schedule property in the name of plaintiff as the 18 O.S.No.4947/2014 kartha of joint family was for the benefit of joint family. He further stated that the three brothers, i.e., himself, plaintiff and another brother Kemparaju constructed three asbestos sheet houses in the suit schedule property one for each of them immediately after the said grant from the Government. He further stated that he has been residing in one of the houses in the suit schedule property ever since the house was constructed. He further stated that the plaintiff was working at THE GLENMORGAN TEA ESTATES COMPANY, Nilgiri district, Ooty, Tamil Nadu, when the property was granted by the Government of Karnataka. He further stated that the property is in their native village Vagragare are also joint family properties and the Rights Tenancy and Crops (RTC) still stands in the name of their grand father. He further stated that the plaintiff has acquired the lands in their native village, Vagragare in his name in the year 1995 and the same is in his possession as kartha of joint family while 19 O.S.No.4947/2014 utilizing proceeds from the joint family holdings and the funds contributed by all three brothers.
18. He further stated that the plaintiff had filed a suit in S.C.1044/2013 before the court of Small Causes for ejectment and the plaint was dismissed on the ground that since the plaintiff failed to establish that there was a jural relationship of landlord and tenant between the plaintiff and the defendant. He further stated that the Court of Small Causes also held that the plaintiff is the kartha of the joint family and the defendant also the co-owner of the suit schedule property. He further stated that the plaintiff admitted that he is the kartha of the family and admitted that there has been no partition among the members of the family till date during his cross-examination in S.C.No.1044/2013. He further stated that the plaintiff has also admitted that he was working at the THE GLENMORGAN TEA ESTATES COMPANY, Nilgiri district, Ooty, Tamil Nadu for 20 years as a coolie from 20 O.S.No.4947/2014 1977. In support of his case, he got marked 10 documents from Ex.D1 to Ex.D10. In view of his oral and documentary evidence he sought for the dismissal of the suit.
19. The learned counsel for the plaintiff in his written arguments contended that the plaintiff has filed the present suit against the defendant to declare him as the absolute owner of the suit schedule property and direction to the defendant to quit and hand over the vacant possession of the suit schedule property. He further contended that the plaintiff is the sole and absolute owner in possession and enjoyment of the suit schedule property and the same was allotted to the plaintiff by the Government of Karnataka under Ashraya Yojana scheme by free of cost. He further contended that the Hakkupatra bearing No.15713 dated 21/5/1992 stands in the name of plaintiff. In order to substantiate his contention he placed his reliance upon Ex.P1 21 O.S.No.4947/2014 Hakkupatra. He further contended that thereafter the name of the plaintiff came to be entered in respect of the suit schedule property and thereafter the name of the plaintiff came to be entered in the revenue records in respect of the suit schedule property and he himself paying the taxes. In order to substantiate his contention he placed his reliance upon Ex.P2 khatha certificate, Ex.P3 khatha extract, Ex.P4, four tax paid receipts. He further contended that even the plaintiff himself took electricity and water connection to the suit schedule property. In order to substantiate his contention he placed his reliance upon Ex.P5 and Ex.P6, i.e., two KEB bills and one water bill respectively.
20. He further contended that the plaintiff has constructed three small asbestos roofed sheet house of one square each and he himself obtained electricity connection and water connection to the suit schedule property. He further contended that the defendant is 22 O.S.No.4947/2014 the own brother of the plaintiff and he is working in BSNL as a lineman. He further contended that as per the request made by the defendant in the year 2005 he gave one portion of the house to the defendant on a permissive basis. He further contended that the plaintiff has not taken any advance and also no agreement was entered in between the parties. He further contended that the defendant himself was paying rent as he thinks fit and for sometime he paid rents regularly and there afterwards he becomes defaulter in the matter of payment of rent. He further contended that the suit schedule property was required for the family necessities of the plaintiff, as such, he requested the defendant to vacate the suit schedule property. He further contended that though the defendant assured the plaintiff that he will vacate the suit schedule property but he failed to keep up his promise. So the plaintiff has filed suit for ejectment against the defendant in S.C.No.1044/2013 before the court of Small Causes, Bengaluru and the said suit 23 O.S.No.4947/2014 was dismissed on the ground that no jural relationship of landlord and tenant between the plaintiff and defendant. In order to substantiate his contention he placed his reliance upon Ex.P7, i.e., the certified copy of judgment and decree passed in the above referred case.
21. He further contended that the defendant contended that the suit schedule property is the joint family property and in the year 1980 the plaintiff and defendant were paying a sum of Rs.5,000/- to Kempanna being in possession of the property but even till today the defendant not produced any single document to show he purchased the property from the said Kempanna. He further contended that the suit schedule property is allotted by Government of Karnataka under Ashraya Yojana at free of cost and hence the suit schedule property is self acquired property of the plaintiff and the defendant has no right over the suit schedule property but he is in permissive 24 O.S.No.4947/2014 possession of the same. He further contended that the defendant has produced some of the documents and those documents are no way concerned to the suit schedule property and some of the documents are created for the benefit of this case, particularly Ex.D1 is a created document. Since the said document issued in the year 1962, but at the time of issuing the said document, the plaintiff was just six years old. So what he contended that the defendant has not explained how can the said document be issued in the name of minor. So he contended that Ex.D1 is the document created for the purpose of this case. He further contended that Ex.D2 is no way concerned to the present case.
22. He further contended that the defendant has got marked 10 documents and in the cross- examination he admitted that the suit schedule property is in the name of plaintiff and he has also admitted that he has not produced any documents to 25 O.S.No.4947/2014 show that he is living in the suit schedule property. He further contended that the defendant in his cross- examination admitted the number shown in the ration card and the address of his native place and he is stating they are only staying and he is daily moving up and down from his native place to the suit schedule property. So what he contended that the defendant is a permanent resident at his native place and occasionally visiting the suit schedule property as a permissive occupant in the portion of the suit schedule property. So in view of his above written arguments he urged to answer issue No.1 and 2 in the Affirmative and issue No.3 in the Negative.
23. The defendant in his written arguments contended that the suit filed by the plaintiff seeking the relief of declaration and possession is not maintainable and the same is liable to be dismissed. He further contended that the defendant is the co- owner of the suit schedule property and the suit 26 O.S.No.4947/2014 schedule property is the joint family property of the plaintiff and the defendant. He further contended that the joint family includes the plaintiff, the defendant and their younger brother Kemparaju. He further contended that the suit schedule property measuring 18 x 33 feet was allotted by the Government of Karnataka under the Ashraya Yojana scheme at free of cost in the name of plaintiff as he is the kartha of the family. He further contended that there is absolutely no background given as to the reasons or criteria based on which the Government of Karnataka would allot a site to the plaintiff that too whilst the plaintiff was working in THE GLENMORGAN TEA ESTATES COMPANY, Nilgiri district, Ooty, Tamil Nadu at the time of allotment. He further contended that during the course of his cross-examination on 14/7/2016 states that he has not filed application to the Government of Karnataka seeking a site under the Ashraya Yojana scheme. When that is the case, there was absolutely no reason or grounds for the 27 O.S.No.4947/2014 Government of Karnataka to have granted a site in the name of plaintiff under the Ashraya Yojana scheme.
24. He further contended that the plaintiff during the course of his cross examination in S.C.1044/2013 on 21/1/2014 has admitted that he was working in THE GLENMORGAN TEA ESTATES COMPANY, Nilgiri district, Ooty, Tamil Nadu, when the suit schedule property was granted by the Government of Karnataka in the year 1992. However the plaintiff in the cross-examination in O.S.No.4947/2014 on 14/7/2016 states that he was in Bengaluru in 1992 when the site was granted by the Government of Karnataka. He further contended that the very documents produced by the defendant at Ex.D7, i.e., inland letter written by the plaintiff to the defendant and Ex.D8 letter provided by THE GLENMORGAN TEA ESTATES COMPANY on 6/3/2004 clearly shows that the plaintiff was working in the said company when 28 O.S.No.4947/2014 the suit schedule property was granted by the government.
25. He further contended that the defendant has very clearly given the background with regard to the suit schedule property. What he contended that the suit schedule property was originally owned by one Kempanna and the same was acquired by the plaintiff and the defendant by paying a sum of Rs.5,000/- to the said Kempanna in the year 1980. It is further contended that during the year 1982-83 the Government of Karnataka has acquired Sy.No.46 of Saneguruvanahalli and other properties and formed residential sites under the Ashraya Yojana Scheme. The said site No.631 is also part of Sy.No.46 and hence was part of Government of Karnataka's acquisition. He further contended that considering the earlier possession of the plaintiff and defendant over the site No.631, the Government of Karnataka has allotted the site No.631 measuring 18 feet by 33 feet in the name 29 O.S.No.4947/2014 of plaintiff since he is the eldest person and kartha of the joint family. The said site has been granted for the benefit of the joint family and not for the plaintiff's benefit alone. He further contended that the plaintiff in the cross-examination admitted that he was working in THE GLENMORGAN TEA ESTATES COMPANY, Nilgiri district, Ooty, Tamil Nadu since 1977. He further contended that the very documents produced by the defendant at Ex.D7 and Ex.D8 clearly shows that the plaintiff was working in THE GLENMORGAN TEA ESTATES COMPANY, Nilgiri district, Ooty, Tamil Nadu till 2004.
26. He further contended that it is not a mere coincidence that three individual houses of 1 sq.ft each exist at the site No.631 of which the suit schedule property forms a part. It is a matter of fact that these three individual houses at site No.631, 5th main road, 5th cross, Kamalanagar, Bengaluru - 79 were constructed by the three siblings, i.e., the plaintiff, the 30 O.S.No.4947/2014 defendant and the youngest brother by name Kemparaju and each sibling is in peaceful possession and enjoyment of their respective houses in site No.631. The fact that the youngest of the siblings Kemparaj is also residing in one of the three houses in site No.631 is admitted by the plaintiff during the course of his cross examination on 14/7/2016.
27. He further contended that in the present case the plaintiff has admitted during the course of his cross examination that even now he is the kartha of the joint family and they are ancestral properties that are not yet partitioned. He further contended that during the course of cross examination of plaintiff on 14/7/2016 when a suggestion was made to him that the site No.631 was granted by the government under Ashraya scheme for the benefit of the joint family, the plaintiff has admitted that it is true. He further contended that the plaintiff further admits that as the eldest person in the joint family, under the Ashraya 31 O.S.No.4947/2014 scheme, the site was granted in his name. He further contended that the above said aspect clearly goes to show that the plaintiff is not the absolute owner of the suit schedule property and the suit schedule property is the joint family property of the plaintiff and defendant.
28. He further contended that the plaintiff has produced Ex.P7, i.e., judgment passed in S.C.No.1044/2013. He further contended that in paragraph No.11 of the said judgment it was held by the said court that mere tenant in the suit schedule premises, the only evidence adduced is an alleged termination notice and the said court has rightly held that the contents of the termination notice are nothing but a replica of the plaint averments. He further contended that in the said judgment it was further held that except termination notice the plaintiff has not produced any document to establish the alleged jural relationship of landlord and tenant between 32 O.S.No.4947/2014 himself and the defendant and absolutely no corroborative oral evidence to the plaintiff's oral testimony. So what he contended that the very admission by the plaintiff in the above referred case and admission in this case that the suit schedule property was allotted by the government in the name of eldest person in the family for the benefit of the family clearly goes to show that the defendant is the co-owner of the suit schedule property. He further contended that the plaintiff counsel in his written arguments at paragraph 7 states that the plaintiff was only six years old on the date of issuance of Hakkupatra, i.e., Ex.D1, of the house in Vagaragare village. So far as the said aspect is concerned, he contended that the father of the parties in this suit also goes by the name 'Thimmaiah'. This is also evident from the evidence of plaintiff. The hakkupatra is even today in the name of the father of the parties though it is many years since the father of the parties has met his demise. This goes to show that the ancestral properties in the village are 33 O.S.No.4947/2014 not yet partitioned. He further contended that the defendant has produced original hakkupatra of the house in Vagaragare village standing in the name of the father of the parties, i.e., Thimmaiah, certified copies of the RTC extract of the lands in Vagaragare village and certified copies of two sale deeds of agricultural lands in Vagaragare village and the same have been marked as exhibits through defendant as Ex.D1 to Ex.D4 respectively and those documents clearly shows that all those properties and the suit schedule properties are the joint family properties of the plaintiff and defendant and the plaintiff is not the absolute owner of the suit schedule property. So he contended that when absolutely there is no acceptable evidence to show that the plaintiff is the absolute owner of the suit schedule property the question of handing over possession of the suit schedule property to the plaintiff does not arise at all. So in view of his above written arguments he urged to answer issue 34 O.S.No.4947/2014 No.1 and 2 in the Negative and issue No.3 in the Affirmative.
29. In the light of the written arguments submitted by the respective counsels for the parties, I have gone through the records. Admittedly this is the suit filed by the plaintiff against the defendant seeking for declaration and direction to the defendant to vacate and hand over the vacant possession of the suit schedule property.
30. It is the contention of the plaintiff that he is the absolute owner of the suit schedule property measuring 18 feet x 33 feet and the same was allotted to him by the government under Ashraya Yojana scheme by free of cost on 21/5/1992 and also Hakkupatra was issued in his name. In support of his contention he has produced Ex.P1, i.e., hakkupatra. It is the contention of the plaintiff that he constructed three small asbestos sheet houses of about one square 35 O.S.No.4947/2014 each on the said site No.631, i.e., suit schedule property and also he obtained water and electricity connections to the house and they are standing in his name. He further contended that he himself paying the taxes and khatha in respect of the suit schedule property is also standing in his name. It is the contention of the plaintiff that the defendant is none other than his own brother and is working in BSNL as lineman and as per his request he permitted to reside in a portion of one house in the suit schedule property and the defendant had agreed to vacate the property as per request made by him, but the defendant has failed to keep up his promise. So when the plaintiff claims that the suit schedule property is his absolute property, it is for him to establish the said aspect with acceptable evidence.
31. As it is already stated above the plaintiff claims that he is the absolute owner of the suit schedule property. Though the plaintiff claims that he 36 O.S.No.4947/2014 is the absolute owner of the suit schedule property, but in order to substantiate his said stand, no acceptable material has been placed before the court. No doubt the plaintiff has produced hakkupatra at Ex.P1, khatha certificate and khatha extract at Ex.P2 and Ex.P3 and tax paid receipts, water bill and KEB bill, but on the said basis it cannot be possible to come to the conclusion that the plaintiff is the absolute owner of the suit schedule property. As it is already stated above and also it is an undisputed fact that the suit schedule property was allotted to the plaintiff by the government under the Ashraya Yojana scheme. Now the important point to be considered is that the suit schedule property allotted to the plaintiff by the government exclusively for himself or for the benefit of the family of the plaintiff. As it is already stated above, though the plaintiff claims that he is the absolute owner of the suit schedule property, but no acceptable evidence has been placed before the court. Per contra the very evidence given by the plaintiff in the cross- 37 O.S.No.4947/2014 examination clearly goes to show that the suit schedule property is not exclusively granted to the plaintiff by the government and the same is granted in the name of plaintiff being the eldest person and kartha of the family for the benefit of the family. At this juncture it would be relevant to quote the evidence given by PW1 in the cross-examination, 1st para which reads as under:
£ÁªÀÅ 3 d£À CtÚ vÀªÀÄäA¢gÀÄ £Á£ÀÄ
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32. The above evidence given by the plaintiff in the cross-examination goes to collapse his entire stand, i.e., to say, the suit schedule property is the absolute property of himself and the defendant is in permissive possession of one of the portion of three houses constructed in the suit schedule property. Per contra the very evidence given by PW1 as referred above in the cross-examination clearly goes to show that earlier the suit schedule property was with one Kempanna and the same was purchased by the plaintiff and defendant by paying Rs.5,000/-. The above said evidence given by PW1 in the cross- examination clearly goes to corroborates the stand 39 O.S.No.4947/2014 taken by the defendant in his written statement as well as in his evidence. When that would be the case, the whole theory of plaintiff that he is the absolute owner of the suit schedule property cannot be accepted. As it is already stated above, mere issuing of hakkupatra and revenue documents in his name is not a ground to declare the plaintiff as the absolute owner of the suit schedule property, as because the evidence on record shows that the suit schedule property was allotted by the government in the name of plaintiff under Ashraya Yojana scheme as he being the eldest member of the family and the kartha of the family. When that would be the case, it is needless to say that the plaintiff is not the absolute owner of the suit schedule property and the suit schedule property is allotted in the name of plaintiff for the benefit of the entire family consisting of plaintiff, his brother and another brother Kemparaju.
33. Another important aspect to be taken note of here is that the defendant contended that at the 40 O.S.No.4947/2014 time of allotment of suit schedule property in the name of plaintiff he was working at THE GLENMORGAN TEA ESTATES COMPANY, Nilgiri district, Ooty, Tamil Nadu. The plaintiff in his evidence stated that at the time of allotment of suit schedule property by the government he was in Bengaluru and even in the cross- examination he has denied the suggestion made by the learned counsel representing the defendant with regard to the above said aspect. Though the plaintiff has denied the suggestion made by the counsel representing the defendant, but the very documents produced by the defendant at Ex.D7, i.e., letter written by the plaintiff to the defendant and Ex.D8, i.e., letter issued by THE GLENMORGAN TEA ESTATES COMPANY, shows that the plaintiff was working in the said company till 2004. So the said documents, i.e., Ex.D7 and Ex.D8 clearly goes to show that as on the date of allotment of the suit schedule property in the name of the plaintiff he was not residing at Bengaluru. When that would be the case, the say of the plaintiff 41 O.S.No.4947/2014 that as on the date of allotment of the suit schedule property in his name by the government he was in Bengaluru cannot be accepted.
34. The learned counsel for the defendant in his written arguments contended that earlier the plaintiff herein filed S.C.No.1044/2013 against the defendant for ejectment and the said suit was dismissed on the ground that the plaintiff herein has failed to prove the jural relationship of landlord and tenant in between himself and the defendant. Admittedly the plaintiff has produced the certified copy of the judgment passed in the above referred case at Ex.P7. Upon perusal of the said judgment, it shows that the said suit was dismissed by the court of Small Causes on the ground that the plaintiff herein has failed to prove the jural relationship of landlord and tenant in between himself and the defendant and also in the said judgment it was stated by the said court that the defendant herein is the co-owner of the suit schedule property. Admittedly 42 O.S.No.4947/2014 the judgment passed in the said S.C.No.1044/2013 till this date remains unchallenged. Upon perusal of the contents of plaint averments of the said case and also upon perusal of the contentions of the rival parties in the said case it shows that similar contention was taken by the plaintiff in the present suit also. When the claim of the plaintiff that the defendant is a tenant in respect of the suit schedule property is already rejected by the court of Small Causes and again he has come up with the present suit seeking declaration and direction to the defendant to vacate and hand over possession of the suit schedule property on the ground that the defendant is a tenant in respect of the suit schedule property. As it is already discussed above the plaintiff in his cross-examination in unequivocal terms admitted that the suit schedule property was allotted to him by the government under Ashraya scheme in his name as he being the eldest member and kartha of the family and also for the benefit of the family. When that would be the case under any 43 O.S.No.4947/2014 stretch of imagination the contention of the plaintiff that he is the absolute owner of the suit schedule property and he is entitled for vacant possession of the suit schedule property cannot be accepted.
35. The defendant in his evidence has produced some documents, i.e., the documents showing that their joint family is having other properties at native place and all those properties are joint family properties including the suit schedule property and till this date there was no partition in the joint family properties of the family in between himself and the plaintiff. So far as the said documents is concerned it can be said that admittedly this is a suit filed by the plaintiff for declaration and direction to the defendant to hand over the vacant possession of the suit schedule property. When that would be the case the question of considering all those documents for the adjudication of the present case does not arise, as because it is not a suit for partition. So by considering 44 O.S.No.4947/2014 the over all oral and documentary evidence on record this court is of the opinion that the plaintiff has failed to prove issue No.1 and 2 and the defendant has succeeded to prove issue No.3. Accordingly issue No.1 and 2 are answered in the Negative and issue No.3 is answered in the Affirmative.
36. Issue No.4: The defendant in his written statement contended that the suit of the plaintiff is bad for non-joinder of necessary parties. What he contended that their another brother by name Kemparaju is not added as party to the proceedings, as such, the suit is bad for non-joinder of necessary parties.
37. Admittedly this is a suit filed by the plaintiff seeking the relief of declaration and direction to the defendant to vacate and hand over vacant possession of the suit schedule property. So also the plaintiff has not sought for any kind of relief against his another 45 O.S.No.4947/2014 brother by name Kemparaju. So also it is not the suit for partition. When that would be the case and when the plaintiff has not at all sought for any kind of relief against his another brother Kemparaju the question of adding him as party to the proceedings does not arise at all. The plaintiff claims that he is the absolute owner of the suit schedule property and the court is required to decide the said aspect on the basis of the oral and documentary evidence adduced and produced by the parties. When that would be the case, the question of adding another brother of the plaintiff by name Kemparaju as a party to the present proceedings does not arise. So for the reasons stated above this court is of the opinion that the defendant has failed to prove his contention, i.e. to say the suit is bad for non- joinder of necessary parties. Accordingly issue No.4 is answered in the Negative.
38. Issue No.5: In view of my findings to the above said issues the plaintiff is not entitled for any 46 O.S.No.4947/2014 reliefs, muchless the reliefs as sought by him. Accordingly issue No.5 is answered in the Negative.
39. Issue No.6: In view of my findings to the above issues, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby dismissed.
No order as to cost.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in open Court on this the 8th day of June 2018).
(Sadananda M. Doddamani) XXV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE:
Witnesses examined for the plaintiff:
P.W.1 - Thimmaiah Witnesses examined for the defendant:
D.W.1 - Mudalaiah 47 O.S.No.4947/2014 Documents marked for the plaintiff: Ex.P.1 - Hakkupatra Ex.P.2 - Khatha certificate Ex.P.3 - Khatha extract Ex.P.4 - 4 Tax paid receipts Ex.P.5 - 2 KEB bills Ex.P.6 - 1 Water bill Ex.P.7 - Certified copy of objection in S.C.No.1044/2013 Documents marked for the defendant: Ex.D1 - Hakkupatra Ex.D2 - 6 Pahanies Ex.D3 - Certified copy of sale deed dated 20/3/1995 Ex.D4 - Certified copy of sale deed dated 20/3/1995 Ex.D5 - Certified copy of statement of witness in S.C.No.1044/2013 Ex.D6 - Certified copy of PF Ex.D7 - Certified copy of letter written by plaintiff Ex.D8 - Certified copy of letter sent by Company 48 O.S.No.4947/2014 Ex.D9 - Certified copy of IT returns
Ex.D10 - Certified copy of telephone bill (Sadananda M. Doddamani) XXV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.49 O.S.No.4947/2014
Judgment pronounced in open court (vide separate detailed judgment) with the following operative portion:-
ORDER The suit of the plaintiff is hereby dismissed.
No order as to cost.
XXV ADDL.CITY CIVIL & SESSIONS JUDGE BANGALORE