Bangalore District Court
Dilshad Unnisa vs Anju on 2 May, 2025
KABC010338532019
IN THE COURT OF THE X ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-26).
Dated this the 2nd day of May, 2025.
Present
Sri Vijaya Kumar Rai, B.Com., LL.B.,
X Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.7970/2019
Plaintiff: Mrs.Dilshad Unnisa
w/o Late Riyaz Ahmed
Aged about 65 years
R/at Flat No.2A, 2nd Floor,
Naval Residency No.7,
10th Cross, KHB Road,
Kaveri Nagar, R.T. Nagar,
Bengaluru - 560032
(By Sri Nayeem Pasha, Adv.)
Vs.
Defendants: 1) Mrs.Anju
D/o Jai Bhagawan
Major in age
R/at Main Jain Provision,
Gopal Nagar, Najafgarh,
South West Delhi - 110043
2) Mr.Mohammed Saleem
S/o Shaik Usman
R/at No.1/125, Kotekar Post,
Mangalore - 574152
(By Sri M. Mahadev, Adv. For D.1 and Sri
S. Rajashekar, Adv. For D.2)
Date of institution of the suit 06.11.2019
2 O.S.No.7970/2019
Nature of the suit Suit is for permanent
prohibitory injunction.
Counter claim is for
mandatory injunction
Date of the commencement 09.12.2024
of recording of evidence
Date on which the judgment 02.05.2025
Pronounced
Total duration Years Months Days
05 05 28
(Vijaya Kumar Rai)
X Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
Initially the plaintiff has filed this suit for the releif of permanent prohibitory injunction against the defendants from illegally dispossessing the plaintiff from the suit schedule property.
2. The case of the plaintiff in brief is as hereunder:-
The plaintiff was looking for a residential house on lease / mortgage basis and therefore one Mr. Khan Sahab introduced the defendant No.1 who is the owner of the suit schedule property and after negotiations defendant No.1 let out the suit schedule Flat No.2A, 2nd Floor, Naval Residency No.7, 10th Cross, KHB Road, Kaveri Nagar, R.T.Nagar, Bengaluru - 560032, consisting of 3 bedrooms, totally measuring 1,200 sq.ft. for a period of 2 3 O.S.No.7970/2019 years subject to the condition that the plaintiff shall pay Rs.12,00,000/- (Rupees Twelve Lakhs Only) without any monthly rent and it was agreed that the amount of Rs.12,00,000/- shall be returned to the plaintiff at the time of vacating the suit premises after the expiry of two years. Accordingly, an agreement was executed on 31.08.2017 commencing from 01.09.2017 for a period of 2 years. The plaintiff gave Rs.12,00,000/- to the defendant No.1 and occupied the suit premises, but on 02.10.2019 defendant No.2 called the plaintiff's daughter over phone introduced himself that he has purchased the suit schedule property and insisted to vacate the suit schedule property within one month's time. Later on 21.10.2019 and 03.11.2019 such attempts were made and a legal notice was also issued by the 2nd defendant on 09.10.2019 and therefore as there was threat by the defendant No.2 the present suit is filed seeking the relief of permanent prohibitory injunction.
3. Inspite of the appearance of the defendant No.1 she has not chosen to file any written statement. The 2nd defendant has filed a written statement as well as counter claim for the relief of mandatory injunction directing the plaintiff to quit and deliver the vacant possession of the suit schedule property and for the payment of mesne profits at the rate of Rs.40,000/- per month from 01.09.2017. In the written statement as well as counter claim 4 O.S.No.7970/2019 filed by the defendant No.2 he has taken up the contention that he is the absolute owner of the suit schedule flat having been purchased through a registered sale deed dated 29.09.2015 and due to his work commitment and as he was staying in Kuwait handed over one set of key of the house to defendant No.1 to maintain it and to show the house to the interested persons who intend to either purchase or take it on rental basis. But, defendant No.1 taking advantage of the absence of the 2 nd defendant colluded with the plaintiff, created an agreement without any authorization by him to execute such agreement or letout the premises. The possession of the plaintiff over the suit schedule property is unauthorized possession and therefore she is liable to pay a sum of Rs.40,000/- from 01.09.2017 to 30.09.2019 and Rs.60,000/- per month as mesne profits from 01.10.2019 till delivery of the possession of the property to defendant No.2. The defendant No.2 has specifically taken up the contention that defendant No.1 is not the owner of the suit schedule property and plaintiff had not even paid Rs.12,00,000/- to the defendant No.1 and the entire act of the plaintiff and defendant No.1 is a collusive act and therefore the plaintiff has no right to continue in possession.
4. The plaintiff has filed written statement to the counter claim filed by the defendant No.2 contending that the factum of 5 O.S.No.7970/2019 the purchase of the suit schedule flat by the defendant No.2 on 29.09.2015 is not known to the plaintiff and therefore it is denied as false. She has admitted the receipt of notice dated 09.10.2019, but contended that the suit for mandatory injunction is not maintainable and the only option available to the defendant No.2 is to file a separate suit with similar prayer as the suit is only for bare injunction.
5. On the basis of the above pleadings this Court has framed the following issues:-
1) Whether the plaintiff proves her lawful possession over the suit schedule property by virtue of the lease-cum-mortgage agreement dated 31.08.2017 between herself and defendant No.1 for a sum of Rs.12,00,000/-?
2) Whether she further proves the alleged obstruction caused by defendant No.2 to her possession over the suit schedule property?
3) If so, whether the plaintiff is entitled to seek the relief of permanent injunction against the defendants as sought for in para-15(a) of the plaint?
4) Whether the defendant No.2 proves his absolute ownership over the suit schedule property by virtue of the registered sale deed dated 29.09.2015?
6 O.S.No.7970/2019
5) Whether he further proves that the possession of the plaintiff over the suit schedule property is unlawful?
6) If so, whether he is entitled to seek the decree of mandatory injunction against the plaintiff as prayed for in his counter claim para-24(a)?
7) Whether he further proves his entitlement to claim damages from the plaintiff to the tune of Rs.40,000/- per month as prayed for?
8) Whether the defendant No.2 proves the correct valuation of the relief of counter claim and the Court fee paid thereon?
9) What order or decree ?
6. Inspite of sufficient opportunities given to the plaintiff, she has not chosen to lead her evidence. Therefore, by the order dated 10.08.2023 the suit filed by the plaintiffs came to be dismissed. Later the plaintiff has filed application for restoration of the suit which came to be dismissed by this court. The power of attorney holder of defendant No.2 is examined as DW-1 and produced Ex.D-1 to 8 documents on the counter claim. Later the plaintiff got examined herself as PW-1 as a defence to the counter claim and produced Ex.P-1 to 63 documents.
7. Heard the arguments. Learned counsel appearing for the plaintiff has also filed notes of arguments. 7 O.S.No.7970/2019
8. The findings of this Court on the above issues are as under:
Issue No.1 : Does not arise for consideration as the suit is dismissed.
Issue No.2 : Does not arise for consideration as the suit is dismissed.
Issue No.3 : Does not arise for consideration as the suit is dismissed.
Issue No.4 : In the affirmative Issue No.5 : In the affirmative Issue No.6 : In the affirmative Issue No.7 : Partly in the affirmative Issue No.8 : In the affirmative Issue No.9 : As per final order, for the following:
REASONS
9. Issues No.4 to 6:- The defendant No.2 has asserted his absolute title over the suit schedule property on the basis of the registered sale deed dated 29.09.2015 executed in his favour from his vendor. The power of attorney holder of the defendant No.2 is examined as DW-1 and produced the certified copy of the sale deed at Ex.D.2. Ex.D.2 sale deed indicates that one Ms.Rubina Sameer having purchased the suit schedule flat from its original owner on 21.02.2015 sold it to the 2 nd defendant through this sale deed. The title of the 2nd defendant over the suit schedule property is disputed by the plaintiff. It is contended on behalf of the plaintiff that the Ex.D.2 sale deed came to be 8 O.S.No.7970/2019 executed in favor of the defendant No.2 by the defendant No.2 in a capacity of a power of attorney holder of its vendor Ms. Rubina Sameer. It is also contended that except the sale deed the khatha and the other documents were not mutated in the name of the 2 nd defendant and therefore, the Ex.D.2 alone is not sufficient to hold that the 2nd defendant is the owner of the suit schedule property. Learned counsel appearing for the plaintiff has also contended that the DW-1 had no valid power of attorney and therefore his evidence cannot be relied upon to hold that the defendant No.2 is the owner of the suit schedule property.
10. It is true that the title of a property should be proved independently. When the defendant No.2 has specifically asserted his title over the suit schedule property as per Ex.D.2 sale deed by issuing notice to the plaintiff and defendant No.1 as per Ex.D.3 dated 09.10.2019 the plaintiff has not responded to it by submitting a reply. The plaintiff has admitted the service of the notice to her. But she has remained silent. Even during the course of filing the written statement to the counter claim the plaintiff has merely pleaded that the purchase of the suit schedule property through the sale deed dated 29.09.2015 is not known to her and therefore it is denied as false. It is not the contention of the plaintiff that the vendor of the defendant No.2 had not derived any title to the suit schedule property to execute the sale deed in 9 O.S.No.7970/2019 favour of the defendant No.2. It is not even pleaded by the plaintiff that Ex.D.2 sale deed is not a genuine document and it is created by the defendant No.2. On the other hand during the time of cross examination of PW1, when a specific suggestion was made to her that second defendant had purchased the suit schedule property she has pleaded her ignorance. She has specifically deposed that she cannot say anything about Ex.D.2 sale deed. Again, she has admitted that she came to know that 2nd defendant has purchased the suit flat after two years from occupying the suit schedule property. In this regard, the specific portion of the evidence given by PW1 in her cross-examination is extracted for ready reference.
"I do not know when 2nd defendant purchased the suit schedule property. I cannot say anything about Ex.D.2 sale deed. I came to know about the purchase of the suit schedule property by 2nd defendant after two years. It is true that the 1st defendant Smt. Anju was the caretaker in the suit schedule property".
11. Needless to mention that when the defendant has specifically pleaded that he is the absolute owner of the suit schedule property by virtue of the registered sale dated 29.09.2015, in order to deny the same, the denial should be specific as per Order 8 Rule 3 of CPC. Order 8 Rule 4 of CPC makes it clear that evasive denial cannot be considered and 10 O.S.No.7970/2019 Order 8 Rule 5 of CPC makes it clear that if every allegation of fact in the plaint is not denied specifically, it shall be taken to be admitted. As stated above in the plaint, the plaintiff has only stated that, she was unaware of the sale dated 29.09.2015. Though in the written statement she has denied it, the denial is based on her ignorance. This is important in the present case for the reason that plaintiff is not claiming title or the suit schedule property. She has not even asserted that defendant No.1 who had let out the premises is the owner of the suit schedule property. Such being the case when the defendand No.2 has produced a registered sale deed in respect of the suit schedule property said to be executed by his vendor, in the absence of specific denial or dispute with regard to the flow of title, the evidence available on record is sufficient to hold that the defendant No.2 has purchased the suit schedule property from its previous owner. If the sale deed produced at Ex.D.2 was not a genuine sale deed or it did not convey any title to the defendant No.2, the owner of the flat should have denied it. The suit schedule property is a flat in an apartment building. Therefore, a distinction shall be made in respect of a landed property and an apartment. An apartment is constructed by a particular owner and therefore if the Ex.D.2 sale deed was not a genuine sale deed, 11 O.S.No.7970/2019 certainly the owner of the apartment would have raised an objection with regard to Ex.D.2, which is a registered sale deed.
12. As rightly contended by the learned counsel appearing for the plaintiff, the defendant No.2 has not produced the Khatha in respect of the property, DW-2 has given an explanation for the non-production of the Khatha. It's an admitted fact that defendant No.2 is working at Kuwait and therefore he could not often visit to the suit schedule property. Under these circumstances, even in the absence of other supporting documents, Ex.D.2 sale deed along with all other attending circumstances is sufficient to hold that defendant No.2 has purchased the suit schedule property through Ex.D.2 sale deed dated 29.09.2015 and therefore he became the absolute owner of the suit schedule property with effect from 29.09.2015. Consequently, issue number four is answered in the affirmative.
13. ISSUE No.5 and 6:- In the counter claim, the defendant has sought for an order of mandatory injunction to direct the plaintiff to quit and surrender the vacant possession of the property to him. In the written statement filed by the plaintiff to the counter claim, she has taken up a contention that, the suit for mandatory injunction is not maintainable as the suit filed by the plaintiff is only for bare injunction. But Order 8 Rule 6A of CPC is wide enough to enable the defendant to file a counter claim 12 O.S.No.7970/2019 against the plaintiff in respect of any right accrued to the defendant against the plaintiff either before or after filing of the suit. There is no bar for seeking a mandatory injunction as counter claim in a suit filed by the plaintiff for bare injunction.
14. The next question is maintainability of relief of mandatory injunction for securing the possession of the suit schedule flat from the plaintiff. In this regard, the nature of the possession of the plaintiff over the suit schedule property is decisive. The plaintiff claims that she came into possession over the suit schedule property on the basis of the lease agreement executed by defendant No.1. She has also stated the defendant No.1 has represented that she is the owner of the property. But, plaintiff neither pleaded not testified that she had made any attempt to find out whether the defendant No.1 is the owner of the property. Plaintiff has alleged that defendant No.1 had received 12 lakhs from her. She has also alleged that defendant No.1 has not returned ₹12,00,000/- to her as agreed. The suit is filed by the plaintiff against defendant No.1, who is her lesser and also against the 2nd defendant. But in the cross-examination of PW1, she has admitted that, at the time of institution of the suit, her advocate was one Sri M.D. Vijay Simha and one Sri. Mahadeva advocate was also attached to his office as his colleague. She has also admitted that Sri. Mahadeva, advocate has filed 13 O.S.No.7970/2019 Vakalath to the plaintiff as well as defendant No.1. In this regard, the specific portion evidence given by PW1 is extracted for ready reference:-
"It is true that at the time of institution of the suit, my advocate was Sri. M.T Vijayasimha. It is true that one Sri. Mahadeva, advocate was also in his office as his colleague. It is true that he has also filed Vakalath on my behalf in this suit. It is true that said Sri Mahadeva has filed Vakalath to 1st defendant also."
15. The above evidence available on record probablises that both the plaintiff and defendant No.1 were in good terms, even after issuance of notice by defendant No.2 against the plaintiff and defendant No.1 and even at the time of filing of the suit. Therefore, both of them were initially represented by a common advocate. This evidence substantiates the stand of the defendant No.2 that the occupation of the plaintiff over the suit schedule property is a collusive act between the plaintiff and defendant No.1.
16. It is true that a lesser of a premises need not be the owner of the property. But, lesser should a person who has right to leased the property. The defendant No.2 has taken up a contention that the defendant No.1 was only a caretaker to whom he has handed over the key to take care of it, and also to show 14 O.S.No.7970/2019 the premises to any of the prospective buyers or the persons who are interested to take it on lease. The defendant No.2 has specifically pleaded that he has not authorised the defendant No.1 to let out the premises. It is not the case of the plaintiff or defendant No.1 that defendant No.2 had authorised the defendant No.1 to let out the premises. Therefore, it is proved that defendant No.1 has let out the premises to the plaintiff without the authority of the 2nd defendant.
17. The plaintiff has also taken up a contention that she has paid ₹12 lakhs to the defendant No.1. But, the same is denied by the 2nd defendant. In the course of evidence, PW1 has stated that she has paid huge amount of ₹12 lakhs in cash to the 1st defendant. In the normal course, no one would give such a huge amount in cash. She has admitted that, she is not an income tax assessee. She has taken up a contention that, she has paid ₹6 lakhs by receiving back the lease amount paid by her at Trupti Apartment. There is nothing on record to substantiate same. She has further stated that remaining ₹3 lakhs was with her. Again there is evidence to support it. She has further stated that remaining ₹3 lakhs was availed as loan. She has not even revealed from whom she had received the loan. In this regard, the specific portion of evidence given by PW1 is extracted for ready reference.
15 O.S.No.7970/2019
"I have paid ₹12 lakhs to the first defendant in cash. I am not an income tax assessee. I have paid the amount of ₹6 lakhs by receiving back the lease amount paid by me at Trupti Apartment and remaining ₹3 lakhs was with us and balance ₹3 lakhs was availed as loan. We do not have any documents to show that we have received ₹6 lakhs paid as lease amount. I have also no documents to show that a sum of ₹3 lakhs was with us. I cannot say from whom the remaining ₹3 lakhs was borrowed."
18. When the plaintiff was unable to say that from whom she had borrowed loan of ₹3 lakhs, the very contention raised by the plaintiff that she had paid ₹12 lakhs to the defendant No.1 is totally improbable. This also supports the stand of the 2nd defendant that the occupation of the plaintiff over the suit schedule property is a collusive act between the plaintiff and defendant No.1. As observed above, the appearance of plaintiff and defendant No.1 through a common advocate supports the stand taken by defendant No.2.
19. It is also necessary to note that even according to the case of the plaintiff, she had occupied the suit schedule property on the basis of the lease agreement only for two years. After the period of two years, she has no right to continue her stay in the suit schedule property. The right of the plaintiff if any is to claim 16 O.S.No.7970/2019 back ₹12 lakhs from the defendant No.1. The plaintiff has no right to claim ₹12 lakhs from defendant No.2. Therefore, the plaintiff has no right to occupy the suit schedule flat after the period of two years. She has no right to contend that she's not liable to vacate the premises even after the period of two years, unless the defendant No.2 makes the payment. Further, the plaintiff has not sued either the defendant No.1 or defendant No.2 even till today for the recovery of ₹12 lakhs.
20. Admittedly, the defendant No.2 is working at Kuwait. The plaintiff claims that she occupied the suit premises on 01.09.2017. Thereafter, when the defendant No.2 came to know about the illegal occupation of the plaintiff, without any delay, he has issued the notice on 09.10.2019 and immediately filed this counter claim. The entry of the plaintiff to the suit schedule premises is unauthorized and illegal. The plaintiff has not able to show that after illegal entry to the suit schedule property, she has acquired settled possession over the suit schedule property. Therefore, the counter claim for mandatory injunction is maintainable even without a suit with a specific prayer for possession. In the decision of the Hon'ble Supreme Court rendered in the case of Sant Lal Jain v/s Avtar Singh (1985)2 SCC 332, the Hon'ble Supreme Court also observed that, in a 17 O.S.No.7970/2019 case of this nature, a suit for mandatory injunction is maintainable in the following words:
"In the present case, it has not been shown to us that the appellant had come to the Court with the suit for mandatory injunction after any considerable delay which will disentitle him to the discretionary relief. Even if there was some delay, we think that in a case of this kind attempt should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense. The suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. Therefore, we are of the opinion that the appellant should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction".
21. The defendant No.1 being a caretaker, she had no authority to let out the premises to the plaintiff. In view of this, caretaker's possession is only a gratuitous possession and therefore she cannot transfer better possession to the plaintiff than a gratuitous possession. Hence, the law is well settled that even a caretaker cannot maintain an injunction suit against the title holder of the property. In the decision of the Supreme Court 18 O.S.No.7970/2019 rendered in the case of Maria Margarida Sequeria Fernandes vs Erasmo Jack de Sequeria (2012)5 SCC 370, the three judge bench of Hon'ble Supreme Court has clarified that caretaker holds the property only on behalf of the principal that is the owner and her position is par with that of a watchman or servant who is allowed to stay in premises gratuitously. Under these circumstances, the possession of the plaintiff can only be considered as a gratuitous possession or unauthorised trespasser. This legal position is clarified in the aforesaid decision of Maria Margarida Sequeria Fernandes and others, referred to above in the following words:-
"64. There is a presumption that possession of a person, other than the owner, if at all it is to be called possession, is permissive on behalf of the title-holder. Further, possession of the past is one thing, and the right to remain or continue in future is another thing. It is the latter which is usually more in controversy than the former, and it is the latter which has seen much abuse and misuse before the courts.
65. A suit can be filed by the title-holder for recovery of possession or it can be one for ejectment of an ex-lessee or for mandatory injunction requiring a person to remove himself or it can be a suit under Section 6 of the Specific Relief Act to recover possession.19 O.S.No.7970/2019
66. A title suit for possession has two parts- first, adjudication of title, and second, adjudication of possession. If the title dispute is removed and the title is established in one or the other, then, in effect, it becomes a suit for ejectment where the defendant must plead and prove why he must not be ejected.
67. In an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put it differently, wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession.
78. It is a settle principle of law that no one can take the law in his own hands. Even a trespasser in settled possession cannot be dispossessed without recourse to law. It must be the endeavour of the court that if a suit for mandatory injunction is filed, then it is its 20 O.S.No.7970/2019 bounden duty and obligation to critically examine the pleadings and documents and pass an order of injunction while taking pragmatic realities including prevalent market rent of similar premises in similar localities in consideration. The court's primary concern has to be to do substantial justice.
79. Due process of law means that nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity to the defendant to file pleadings including written statement and documents before the court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated upon by a competent court.
97. Principles of law which emerge in this case are crystallised as under:-
(1) No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.
(2) Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.21 O.S.No.7970/2019
(3) The courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.
(4) The protection of the court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or licence agreement in his favour.
(5) The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession".
22. It is true that even a trespasser if his possession is ripened to the status of settled possession, he can be dispossessed only by following due process of law. The due process of law is defined by the Hon'ble Supreme Court in the aforesaid decision that it is an opportunity to the possessor to submit the pleadings and documents before the court and leave the adjudication to the court. The Hon'ble Supreme Court has further made it clear that due process of law does not mean the whole trial and due process of law is satisfied the moment rights of the parties are adjudicated upon by the competent court. The Hon'ble Supreme Court has further observed that the court should critically examine the pleadings and documents produced 22 O.S.No.7970/2019 before the court and shall take a pragmatic and realistic approach.
23. In the present case, the court has given an opportunity to the plaintiff to submit her written statement and to give evidence. Court has given full opportunity to put forward her all contentions to the counter claim. Even after taking the entire contention of the plaintiff, she has occupied the suit schedule property only on the basis of the permission of the defendant No.1, who is a caretaker and who was a gratuitous possessor. Therefore, the plaintiff cannot get better possessory right than defendant No.1.
24. In view of the reasons stated above, having regard to the nature of the possession/occupation secured by the plaintiff and when the defendant No.2 has able to prove his title over the suit schedule property in the present case, the counter claim filed by the defendant No.2 for mandatory injunction is maintainable. Apart from that defendant No.2 has issued notice to the plaintiff and defendant No.1 as per Ex.D.3 on 09.10.2019, calling upon the plaintiff to handover the vacant possession of the suit schedule property and on her failure to pay ₹60,000/- per month. Still the plaintiff continued in possession of the property. In view of this, the possession of the plaintiff is totally unauthorised and 23 O.S.No.7970/2019 she can be evicted by way of mandatory injunction. Consequently issue No.4 to 6 are answered in the affirmative.
25. ISSUE No.7:- The defendant No.2 has claimed mesne profits at the rate of Rs.40,000/- per month. In the course of cross examination of PW-1, a specific suggestion is made by the learned counsel appearing for defendant No.2 that, in the area in which the suit schedule flat is located, the prevailed market rent is Rs.45,000/- per month, to a three bedroom apartment like suit schedule property. The plaintiff has pleaded her ignorance about the prevailing market rate of rent. It's not the contention of the plaintiff that the suit schedule flat would fetch lesser rate of rent. Suit schedule flat is a 3BHK building, measuring 1200 sq. ft. It is stated to be located in the prime area in Bangalore city. Therefore, though there is no specific evidence to ascertain the mean profits, it would be appropriate to direct the plaintiff to pay minimum mesne profits of ₹30,000/- per month from 01.09.2017. On these observations, Issue No.7 is answered partly in the affirmative holding that the defendant No.2 is entitled for Rs.30,000/- per month as mesne profits.
26. ISSUE No.8:- The sufficiency of the court fee paid by the defendant to the counter claim and the valuation of the counter claim is seriously disputed by the plaintiff. As observed in answering Issue No.4 to 6, the counter claim only for the 24 O.S.No.7970/2019 mandatory injunction, directing the plaintiff to quit and surrender the vacant possession of the written statement schedule property is maintainable having regard to the facts and circumstances of the case. There cannot be a dispute that the court fee payable for the relief of mandatory injunction is only ₹25/- and the defendant No.2 has paid it. Therefore, the court fee valuation made by the defendant No.2 and court fee paid to the counter claim is found proper. Accordingly, Issue No.8 is answered in the affirmative.
27. ISSUE No.9:- In view of the answer given to the above issues, the defendant No.2 succeeds in the counter claim for the relief of mandatory injunction, directing the plaintiff to quit and deliver vacant possession of the suit premises to the defendant No.2. Further, the court has held that the defendant No.2 is entitled for mesne profits at the rate of Rs.30,000/- per month from 01.09.2017. The defendant No.2 has not paid the court fee for the mesne profits. The defendant No.2 is required to pay the court fee to the mesne profits before executing the order. It is contended that plaintiff is a lady and she is a senior citizen, aged more than 70 years. Therefore, it would be appropriate to allow the plaintiff to deliver the vacant possession of the suit schedule property within 90 days from today. On these observations, the following order is passed:- 25 O.S.No.7970/2019
ORDER The Counter Claim filed by the defendant No.2 is allowed.
The plaintiff is directed to quit and deliver the vacant possession of the suit schedule premises to the defendant No.2 within 90 days from today.
Further, the plaintiff shall pay mesne profits at the rate of Rs.30,000/- per month to the defendant No.2 from 01.09.2017.
Draw decree accordingly.
(Order prepared through Speech to Text App with the assistance of Senior Sheristedar, carried out corrections, print out taken and then pronounced in the Open Court on this the 2nd day of May, 2025) (Vijaya Kumar Rai) X Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiff:
PW.1 : Dilshad Unnisa List of documents exhibited for plaintiff:
Ex.P1 Gas connection letter
Ex.P2 Electricity bill
Ex.P2(a) Receipt
Ex.P3 Electricity bill
Ex.P3(a) Receipt
Ex.P4 Electricity bill
Ex.P4(a) Receipt
Ex.P5 to Electricity bills
P9
Ex.P10 Receipts
26 O.S.No.7970/2019
to P12
Ex.P13 Gas bill pay receipts
to P24
Ex.P5 Complaint given to the commissioner of police
Ex.P26 Copy of the notice
Ex.P27 Notarized copy of the Adhaar card
Ex.P28 Electricity bills
to P61
Ex.P62 Gas payment bills
& P63
List of witnesses examined for the defendant:
DW.1 : Anju List of documents exhibited for defendant:
Ex.D1 Special power of attorney Ex.D2 Certified copy of the sale deed dated 29.09.2015. It is submitted that the original is lost. Therefore certified copy is marked. Ex.D2(a) Acknowledgement for having lodged the complaint in respect of missing of the sale deed Ex.D2(b) Affidavit Ex.D2(c) Paper publication Ex.D2(d) Certificate by the advocate Ex.D3 Copy of legal notice Ex.D4 to Postal receipts D6 Ex.D7 & Returned postal envelops D8 X Addl. City Civil & Sessions Judge, Bangalore.Digitally signed
VIJAYA by VIJAYA
KUMAR RAI B
KUMAR Date:
RAI B 2025.05.05
11:07:16 +0530