Bangalore District Court
Sri.S.Suderson vs Smt.Kasiyamma on 31 January, 2015
[C.R.P. 67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF THE XIV ADDL. CITY CIVIL JUDGE
AT : BENGALURU. [CCH.No.28]
-: Present :-
Sri. T.Venkatesh Naik, B.A.L., LL.B.,
XIV Addl. City Civil Judge, Bengaluru.
Dated this the 31st day of January 2015
O.S.No.5674/2008
PLAINTIFF: Sri.S.Suderson,
S/o.Singaravelan, 38 years,
R/o.No.25, 10th Main, 10th
Cross, Vasanth Nagar,
Bangalore-560 0 052.
(By Sri.Shakeel Ahmed,
Advocate)
/ Vs /
DEFENDANT: Smt.Kasiyamma,
W/o.Late Kashinathan,
53 years, R/o. No.18/1,
5th Cross, Anjaneya Temple
Street, Vasanth Nagar,
Bangalore.
(By Sri.V.Chandrappa.,
Advocate)
/2/ O.S.5674/2008
Date of institution of the suit: 18/08/2008
Nature of the suit [suit on Declaration and possession
pronote, suit for declaration
and possession, suit for
injunction]
Date of the commencement of 21/03/2011
recording of the evidence:
Date on which the Judgment 31/01/2015
was pronounced:
Year/s Month/s Day/s
Total Duration: 06 05 13
***
JUDGMENT
This is a suit filed by the plaintiff against the defendant for the relief of declaration to declare the plaintiff as the absolute owner of suit schedule property, to direct the defendant to quit, vacate and deliver vacant possession of the suit schedule property, to direct the defendant to pay damages at the rate of Rs.5,000/- per month and also to grant such other reliefs. The plaintiff has furnished the schedule to the plaint as hereunder:
/3/ O.S.5674/2008
SCHEDULE
All that piece and parcel Southern portion of the property bearing Old No. 30, New No.18/1, situated at 5th Cross, Anjaneya Temple Street, Vasanth Nagar, Bengaluru measuring East to West 18 and North to South 16.5 Feet and bounded on as follows:
East by : Private Property.
West by : Common passage thereafter Private Property.
North by: Portion of same property. South b : Lane.
2. The brief facts of the plaintiff's case as averred in the plaint are as hereunder:
According to plaintiff, he became the absolute owner of the suit schedule property by virtue of registered Gift Deed dated 30.4.2007 executed by Smt.Chinthamani, who is none other than the maternal grandmother of plaintiff.
Smt.Chintamani purchased the suit schedule property from erstwhile owner Sri.Govindappa under the registered sale deed dated 21.1.1978. After execution of the Gift Deed, the plaintiff got transferred the khatha into his name, he has paid /4/ O.S.5674/2008 taxes to the concerned authority, he got transferred the water and electricity connection to his name, as such, the plaintiff became the owner of the suit property. According to plaintiff, the defendant is neither the tenant nor the mortgagee, but she is in possession of the suit property illegally. The defendant is in possession of the Southern portion of the subject mater of gift deed. One Smt.Kalavathi is in possession of the Northern portion of the larger extent.
It is the subject matter of O.S.No.5673/2008. The defendant is claiming her right on the concocted documents such as lease deed, executed by one Smt.Sujatha Wife of Ravindra Kumar. Therefore, the plaintiff has sought the relief of declaration and possession against the defendant. The plaintiff also requested the defendant to quit, vacate and delivery vacant possession of the suit property. However, the defendant did not vacate the premises. Plaintiff also lodged police complaint against the defendant, but the police /5/ O.S.5674/2008 did not take any action against the defendant. Hence this suit.
3. After institution of the suit, the defendant appeared through her counsel and has filed her detailed written statement contending that the suit filed by the plaintiff is not at all maintainable in law or on facts. The defendant has denied the ownership of plaintiff over the suit property. The Gift Deed executed by Smt. Chintamani bequeathing the suit property in favour of the plaintiff is denied. The relationship of plaintiff with Smt.Chintamani is denied. The khatha, electricity connection and water connection standing in the name of plaintiff are denied. The tax paid in respect of the suit property by plaintiff is also denied. The defendant admitted the ownership of Smt.Chintamani over the suit property is admitted. According to defendant, Smt.Sujatha Wife of Ravindra Kumar has let out the suit property to the defendant. But the defendant is not aware about the whereabouts of Smt.Sujatha. The request made by the /6/ O.S.5674/2008 plaintiff to quit and vacate the property and thereafter the plaintiff lodged police complaint with the jurisdictional police against the defendant, are denied. The defendant is in possession of the suit property as tenant under Smt.Chintamani. Further the defendant is in possession over the suit property for more than 20 years. Therefore, she has perfected her title to the suit property by Law of Adverse Possession. Thus, the defendant became the owner of the suit property. According to defendant, the Gift Deed is created, concocted, sham document and the Gift Deed is obtained by impersonation. Further the suit is bad for non- joinder of parties. Hence, the suit of the plaintiff is not maintainable. On all these grounds, defendant prayed to dismiss the suit.
4. On the above pleadings, following Issues have been framed:
/7/ O.S.5674/2008
ISSUES
1) Whether the plaintiff proves that he has acquired title to the suit schedule property through a Gift Deed executed by Chintamani Wife of Gopal dated 30.4.2007 and has become owner of the suit property?
2) Whether the plaintiff proves that the defendant is in unauthorized possession of the suit property ?
3) Whether the plaintiff proves that he is entitled for the damages at the rate of Rs.5,000/- p.m. ?
4) Whether the defendant proves that she is residing in the suit property as a tenant under Smt. Chintamani ?
5) Whether the plaintiff is entitled for the relief as sought for?
6) What order or decree?
/8/ O.S.5674/2008
ADDITIONAL ISSUES
1) Whether the defendant proves that she has been in possession of the suit schedule property for a period of 20 years openly, continuously without any interruption and with the knowledge of the plaintiff and she perfected her title and interest over the schedule property by way of adverse possession?
2) Whether the defendant proves that the alleged Gift deed dated 30-04-2007 is created, concocted and it is a sham document, as such plaintiff will not get any right, title and interest over the suit schedule property much less than the possession?
3) Whether the defendant proves that one Smt. Chintamani never executed gift deed in favour of the plaintiff and the alleged gift deed is obtained from impersonate person /9/ O.S.5674/2008 with an intention to knock off the valuation property?
4) Whether the defendant proves that the suit is bad for non-joinder of necessary parties?
5. To prove the case of plaintiff, plaintiff himself examined on oath as P.W.1. In support of his oral evidence, he relied upon in all 27 documents as per Exs.P.1 to P.27 and closed his side. To rebut the claim of plaintiff, the defendant herself examined on oath as D.W.1. In support of her oral evidence, she relied upon in all 18 documents as per Exs.D.1 to D.18. In support of the defendant's claim, Smt. Sujatha and one Ramesh Kumar are examined on oath as D.W.2 and D.W.3.
6. Heard arguments on both sides. Perused the materials on record.
7. My findings to the above noted issues are as under:
/ 10 / O.S.5674/2008 Issue No.1 : Affirmative.
Issue No.2 : Affirmative.
Issue No.3 : Separate enquiry U/O.20 R.12 C.P.C.
Issue No.4 : Affirmative.
Addl.Issue 1 to 3 : In the negative.
Addl.Issue No.4 : In the negative Issue No.5 & 6: As per final order.
REASONS
8. Issues No.1 and 2 :- Both these Issues are inter connected with each other and they are based on same set of facts and evidence. Hence to avoid the repetition of facts, I take both these Issues together for my consideration.
9. Admittedly the plaintiff has filed the instant suit for the relief of declaration and possession. According to plaintiff, he became the owner of the suit property by virtue of registered Gift Deed dated 30.4.2007 executed by Smt.Chintamani in respect of suit property. On the other hand, the defendant has taken the contention that the plaintiff is not the owner of the suit property. Further contended that, the defendant is in possession of suit / 11 / O.S.5674/2008 property for more than 20 years. Hence, she has perfected her title to the suit property. As the defendant denied the title of the plaintiff, the plaintiff has filed the instant suit for the relief of declaration.
10. Section 34 of the Specific Relief Act deals with law of declaration:
"Any person entitled to any legal character or to any right as to any property may institute a suit against any person denying or interested to deny his title to such character or right and the court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief.
Provided that no court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so.
The grant of relief or the relief of declaration and injunction under the provisions of Section 34 is discretionary. The plaintiff cannot claim the relief as of right. It has to be granted according to sound principles of law. The plaintiff must have a present interest or right as distinguished from a mere chance or vague / 12 / O.S.5674/2008 expectancy. So a complete stranger cannot obtain a declaration.
Hence the suit is maintainable in view of Section 34 of Specific Relief Act.
11. Let me analyze the evidence of the parties. To prove the case of the plaintiff, plaintiff himself examined on oath as P.W.1. In his chief-examination, he has reiterated the averments of plaint. In support of his oral evidence, he relied upon in all 27 documents as per Ex.P.1 to P.27. Ex.P.1 is the Gift Deed executed by Smt. Chintamani in favour of plaintiff wherein Smt.Chintamani bequeathed the property bearing No.30, Anjaneya Temple Street, Vasantha Nagar, Bengaluru-51, New No.18/1, 5th Cross, Vasantha Nagar, Bengaluru measuring 18' x 33'. Ex.P.2 is the certified copy of sale deed dated 21.1.1971 executed by Sri.Govindappa in favour of Smt.Chintamani. Ex.P.3 is the Sanction Plan. Ex.P.4 is the Encumbrance Certificate. Ex.P.5 is the certified copy of Khatha Certificate. Ex.P.6 is the Khata Utar. Ex.P.7 / 13 / O.S.5674/2008 is the Utar Patra. Ex.P.8 is the letter of BWSSB. Ex.P.9 is the letter of BESCOM. Ex.P.10 is the copy of the complaint dated 13.09.2007. Ex.P.11 is the endorsement issued by the High Grounds Police Station. Ex.P.12 is the office copy of the notice dated 20.06.2008. Ex.P.13 is the postal receipt. Ex.P.14 is the UCP. Ex.P.15 is the returned postal cover. Ex.P.16 is the legal notice dated 19.07.2008. Ex.P.17 is the reply to the legal notice dated 23.07.2008. Ex.P18 is the UCP. Ex.P.19 is the postal receipt. Ex.P.20 is the Postal acknowledgment. Exs.P.21 to P.27 are the property tax paid receipts. P.W.1 has undergone intensive cross-examination by the counsel for defendant.
12. To rebut the claim of plaintiff, the first defendant is examined on oath as D.W.1. In her chief-examination she has reiterated the averments made in the written statement. In support of her oral evidence, she has relied upon in all 18 documents as per Exs.D.1 to D.18. Ex.D.1 is the Death / 14 / O.S.5674/2008 Certificate of Smt.Chintamani, who died on 14.8.2007. Ex.D.2 is the legal notice dated 20.6.2008. Ex.D.3 is the reply notice dated 19.7.2008. Ex.D.4 is the postal receipt. Ex.D.5 is the postal acknowledgment. Exs.D.6 to 15 are the electricity bills. Exs.D.16 and 17 are the endorsements issued by the Police. Ex.D.18 is the Lease Agreement dated 5.6.2014 executed by Smt.Sujatha. D.W.1 has undergone intensive cross-examination by the counsel for plaintiff.
13. Defendant examined Smt.Sujatha as D.W.2. D.W.2 in her evidence deposed to the fact that, she is the owner of suit property. As such, she has executed Lease Agreement as per Ex.D.18 in favour of the defendant. One Sri. Ramesh, the brother of D.W.2 is examined on oath as D.W.3. In his chief-examination he has reiterated the averments made in the chief-examination of D.W.2 and he has taken the similar contention as taken by D.W.2. D.Ws.2 / 15 / O.S.5674/2008 and 3 have undergone intensive cross-examination by the counsel for plaintiff.
14. In support of defendant's contention, defendant got examined Smt.Sujatha Wife of Ravindra as D.W.2. Smt.Sujatha in her evidence deposed to the fact that, she is none other than the daughter-in-law of Smt.Chintamani and Smt.Chintamani had two sons by name Vijayakumar and Ravindra. Smt.Sujatha is none other than the wife of Ravindra. After the death of Smt.Chintamani and Ravindra, Smt. Sujatha succeeded to the property. Therefore, she became the owner of the property. As an owner of the suit property, she let out the premises to the defendant under the lease agreement as per Ex.D.37. Further, the brother of Smt. Sujatha by name Sri. Ramesh Kumar examined on oath as D.W.3. In his evidence he has reiterated the averments made in the evidence of D.W.2. D.W.2 and D.W.3 have / 16 / O.S.5674/2008 undergone intensive cross-examination by the counsel for the plaintiff.
15. The counsel for plaintiff vehemently argued on the facts and circumstances of the case and contended that the plaintiff is the grandson of Smt.Chinthamani, who has executed registered gift deed dated 30/4/2007 in favour of plaintiff out of her love and affection as per ExP1. The defendant is in possession of suit property illegally. The defendant was tenant under Smt.Chinthamani. After death of Smt.Chinthamani, the plaintiff became the owner of the suit property. In support of the plaintiff's claim, the plaintiff has produced the Gift Deed, plan issued by the Corporation, Encumbrance Certificate, khatha certificate and extract, uthara pathra, letters issued by BESCOM and BWSSB etc.,
16. However, the defendant is falsely claiming that one Smt.Sujatha is the owner of suit property who is none other than the daughter-in-law of Smt.Chinthamani. Further, / 17 / O.S.5674/2008 the defendant has created a lease deed in collusion with Smt.Sujatha. Further, the defendant has set up adverse possession in respect of the suit property. Absolutely, there is no basis in support of the defendant's claim. Hence the counsel prayed to decree the suit.
17. The counsel for defendant contended that Smt.Chinthamani never executed Gift Deed in favour of plaintiff, thereby the defendant has denied the ownership. Thus, the burden lies upon the plaintiff to prove the ownership. But the plaintiff has not examined any witness to the Gift Deed as required under Section 68 of the Indian Evidence Act. Further, Smt.Chinthamani had two sons by name Vijaya Kumar and Ravindra Kumar. They have not signed on Gift Deed. The attesting witness by name Sri.Subramani and Jaikumar are not examined. Further, in order to establish the relationship of plaintiff with the deceased Chinthamani, the plaintiff has not examined any of the children of Smt.Chinthamani or the family members of / 18 / O.S.5674/2008 Smt.Chinthamani. Therefore, the Gift Deed is not proved. Mere production of Gift Deed and marked in evidence as an exhibit is not sufficient to dispense with the proof. The counsel further submits that the defendant is in possession of the suit property as a owner thereof. One Smt.Sujatha has let out the premises to the defendant. In support of the contention of the defendants, she has examined two witnesses i.e., Smt.Sujatha and his brother as DW3 and DW4.
18. The counsel further submits that Smt.Sujatha is necessary and proper party to the suit and the plaintiff has intentionally not impleaded her as a party. Therefore, the suit is bad for non-joinder of necessary parties. The counsel further submits that the defendant is in possession of the suit property for more than 20 years. Smt.Chinthamani during her life time never taken any steps to vacate the defendant from the suit property and Smt.Chinthamani has not raised / 19 / O.S.5674/2008 her fingers about the possession of the defendant. Therefore, the defendant is in possession for more than 20 years. As such, she has perfected her title, interest over the suit property by law of adverse possession. The counsel further submits that DW2 and DW3 categorically disputed the relationship of plaintiff with Smt.Chinthamani. Therefore, the plaintiff is totally a stranger to the family of Smt.Chinthamani. On all these grounds, the counsel prayed to dismiss the suit.
19. The Court has given careful consideration to the contentions of the learned counsel for plaintiff and defendant and perused the materials on record. On perusal of ExP1, it is a registered Gift Deed executed by Smt.Chinthamani in favour of plaintiff dated 30/4/2007, in respect of the suit property. The plaintiff also produced the sale deed of Smt.Chinthamani, the plan issued by Corporation, / 20 / O.S.5674/2008 Encumbrance Certificate, khatha certificate, khatha extract, Uthara Pathra.
20. It is settled law that in a suit for declaration of title, unless the plaintiff produces the document of title, this Court cannot grant declaration on the basis of the revenue records, tax paid receipts or some communication letters. The revenue records are not documents of title. It merely raises a presumption in regard to possession. The khatha extract, khatha certificate, Uthara Pathra and other revenue records being issued only for fiscal purpose, for calculation of land revenue from the person in whose revenue record stands. The guiding factor in recording the mutation or change of khatha is to show who is in possession. If the mutation entry is made in accordance with law, there is a presumption in favour of the person in whose name the mutation entry stands to that effect that, he is in possession of that property. That by itself is not sufficient to hold that / 21 / O.S.5674/2008 he is the owner of the property and it is not proof of title. When the plaintiff has not produced document of title, this Court has no jurisdiction to declare the title of immovable property in the name of plaintiff. Whereas in the instant suit, the plaintiff is relying upon the Gift Deed executed by Smt.Chinthamani. The defendant has not disputed the ownership of Smt.Chinthamani, who purchased the said property under the registered sale deed dated 21/1/78.
21. In the instant suit, the burden is lies upon the plaintiff to prove the Gift Deed as required under Section 68 of the Indian Evidence Act. As per Section 68 of Evidence Act, if a document is required by law to be attested, it shall not be used as evidence, until one attesting witness at least has been called for the purpose of proving its execution, provided that it shall not be necessary to call an attesting witness in proof of the execution of the document, not being a will which has been registered in accordance with the provisions of Indian Registration Act, unless its execution by / 22 / O.S.5674/2008 the person by him, it purports to have been executed is specifically denied. Whereas, in the instant suit, the plaintiff is relying upon registered Gift Deed executed by his maternal grandmother, wherein, she has bequeathed the suit property in favour of plaintiff. The other sons and daughters and other family members of Smt.Chintamani have not disputed the execution of the Gift Deed. The defendant ex-tenant under Smt.Chinthamani. Therefore, they have no any locus standi to dispute the execution of gift deed. Further examination of attesting witness as required under Section 68 is not necessary as the defendant has n locus-standi to question the mode of transfer of property by the landlord. Therefore, examination of any of the family members of Smt.Chinthamani to establish the relationship between plaintiff and Smt.Chinthamani does not arise. Further, the registered Gift Deed is acted upon. The plaintiff has changed the khatha into his name, he obtained water and electricity connection in his name. Therefore, the plaintiff has / 23 / O.S.5674/2008 established his title in respect of the suit schedule property. In order to rebut the contention of the plaintiff, the defendant has disputed the ownership and contended that one Smt.Sujatha is the absolute owner of the suit property. Further, the defendant has set up her title by virtue of adverse possession. In order to establish the ownership Smt.Sujatha, the defendant is relying upon ExD37 the lease agreement dated 5/6/2014 executed by Smt.Sujatha in favour of defendant. Except this lease agreement, the defendant has no any other documents, to establish her jural relationship with Smt.Sujatha.
22. The possession is important when there are no title documents and other relevant records before the Court. But in the instant suit, the plaintiff has produced the documents of title. Therefore, it is the duty of the Court to look the title at first and due weightage is given to it. The possession cannot be considered in vacuum.
/ 24 / O.S.5674/2008
23. There is a presumption that possession of a person, other than the owner, if at all it is called possession, is permissive on behalf of title owner. Further, the 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.
24. A suit can be filed by title holder for recovery of possession or it can be one for ejectment of an ex-lessee or for mandatory injunction or it can be suit under Section 6 of Specific Relief Act to recover possession.
25. 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 / 25 / O.S.5674/2008 ejectment where the defendant must plead and prove why she must not be ejected.
26. 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 the defendant 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 defendant resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that she 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 defendant in possession to give sufficiently detailed pleadings, particulars and documents to support her claim in order to continue in possession. Once title is prima facie established, it is for the defendant who is resisting the title / 26 / O.S.5674/2008 holders claim to possession to plead with sufficient particularly on the basis of her claim to remain in possession and place before the Court all such documents as in the ordinary course of human affairs are expected to be there. Whereas in the instant suit, the defendant has taken plea of adverse possession which has no foundation or basis in the facts and circumstances of the case. According to defendant, she is in possession of the suit property for more than 20 years. But on perusal of the electricity and water bills, it clearly establishes that only after the year 2000, she has been in possession of suit property. Admittedly, the present suit is filed in the year 2008. Thus the suit is filed within 12 years. There is no pleading that the defendant has been in possession continuously for a period of 20 years or more than 12 years openly, without any obstructions with the knowledge of the true owners. Admittedly, the defendant is ex-lessee under Smt.Chinthamani. Therefore, the tenant cannot claim adverse possession. The lease is, lease for ever / 27 / O.S.5674/2008 and no right title and interest would confer upon the lessee. Therefore, the principles of legal maxims nec vee nec calm and nec pre carrio is not applicable to the case of defendant. In order to continue in possession of the suit property, the defendant has deliberately introduced irrelevant and untenable pleas.
27. In the instant suit, the defendants have not created any suspicious circumstances about the Gift Deed executed on 30/4/2007 by Smt.Chinthamani in favour of her grandson the plaintiff herein. Dw2 Smt.Sujatha is none other than the daughter-in-law of Smt.Chinthamani. DW3 Sri.Ramesh Kumar who is brother of Smt.Sujatha. In their evidence, they clearly deposed to the fact that Smt.Chinthamani had 2 sons and 4 daughters. DW2 is not not specifically disputed that plaintiff is son of Smt.Kanchana Devi. Smt.Kanchana Devi is none other than the first daughter of Smt.Chinthamani.
/ 28 / O.S.5674/2008
28. In the instant suit, the defendant has taken contention that, plaintiff has played fraud and undue influence, while executing Gift Deed by Smt.Chinthamani. But neither the defendant nor Smt.Sujatha DW2 herein have lodged any police complaint alleging any fraud or undue influence against the plaintiff. Smt.Chinthamani has another son by name Sri.Vijaya Kumar. Neither the said Vijaya Kumar nor his family members have challenged the Gift Deed before any competent Court of Law. Further, the other daughters have also not challenged the Gift Deed.
29. Admittedly, the plaintiff has obtained khatha from the BBMP and got electricity and water connection from BESCOM and BWSSB. At no point of time, the defendant or Smt.Sujatha objected or lodged any complaint before BBMP, BDA, BWSSB and BESCOM.
30. The claim of defendant is that she is full and absolute owner of suit property by way of adverse / 29 / O.S.5674/2008 possession. The defendant has not placed any material to show that she is the owner of suit schedule property, except by producing the electricity and water bills. The defendant has not placed any cogent or corroborative evidence to show that she is the full and absolute owner in respect of the suit schedule property, except the documents referred above, who is residing in the suit schedule property for more than 20 years, as contended in written statement as well as in evidence.
31. During the pendency of the suit, at the time of evidence of defendant, she has produced ExD37 the lease agreement dated 5/6/2014 executed by Smt.Sujatha, DW2 in favour of defendant. When the case of the defendant is that, she is the owner of the suit schedule property by way of adverse possession for more than 20 years, the question of producing ExD37 lease deed executed by Smt.Sujatha in favour of defendant would not arise to show that the defendant is a tenant under DW2. If really, the defendant is / 30 / O.S.5674/2008 the owner of the suit schedule property, she would not have produced ExD37 to show the jural relationship of landlord and tenant, between herself and Smt.Sujatha. In the written statement, the defendant no where pleaded about the tenancy between herself and Smt.Sujatha. Only for the first time i.e., during the stage of defendant's evidence, ExD37 lease agreement came into existence. The defendant is uncertain whether she is the owner of suit property by adverse possession or she is a tenant under Smt.Sujatha in terms of the lease deed dated 5/6/2014. The defendant has failed to establish that she is the owner of the suit schedule property by way of adverse possession. Since the defendant has produced lease agreement, she cannot claim ownership over the suit property.
32. In support of the defence of the defendant, she examined Smt.Sujatha as DW2. Wherein, she deposed to the fact that she is the owner of the suit schedule property / 31 / O.S.5674/2008 after the death of her husband Sri.Ravindra Kumar who was the owner of the suit schedule property. Admittedly, Smt.Chinthamani had executed registered Will bequeathing the suit property in favour of Sri.Ravindra Kumar. After the death of Sri.Ravindra Kumar, Smt.Chinthamani cancelled the registered Will and later executed registered Gift Deed dated 30/4/2007 bequeathing the suit property in favour of her grandson plaintiff herein. DW2 Smt.Sujatha has not placed any cogent or corroborative evidence to show that she is the owner of the suit property and the defendant is her tenant. Since the title of the suit property has been transferred in favour of the plaintiff, under the registered document, neither Ravindra Kumar nor Smt.Sujatha acquired any title to the suit property. In the absence of title in respect of the suit property Smt.Sujatha cannot claim the ownership over the suit property. Further, Smt.Sujatha had filed suit in O.S.2440/11 for the relief of declaration in respect of the suit schedule property against the present plaintiff and defendant / 32 / O.S.5674/2008 Smt.Kalavathi and Smt.Kashiamma. The suit filed by Smt.Sujatha came to be dismissed on 17/1/2014. Therefore, now Smt.Sujatha cannot claim any right, title over the suit property. On the other hand, the plaintiff is able to prove that he is the owner of the suit schedule property by virtue of registered Gift Deed. The defendant also failed to establish that she is the owner of the suit schedule property by way of adverse possession. Hence I answer Issue No.1 in the affirmative, Additional Issue No.1 and 2 in the negative.
33. Issue No.3: According to plaintiff, he has proved his title to the suit property and therefore the possession became unauthorized. The plaintiff has claimed damages at the rate of Rs.5,000/- per month. It requires separate enquiry as required under Order 20 Rule 12 C.P.C. Hence I answer Issue No.2 in the affirmative and Issue No.3 accordingly.
/ 33 / O.S.5674/2008
34. Issue No.4: According to defendant, she is residing in the suit property as tenant under Smt.Chintamani. On perusal of the documents relied upon by the defendant, it appears that to establish the jural relationship with Smt.Chinthamani and defendant, no rent receipts and lease agreements have been produced. But the defendant has paid electricity bill and water bills in the name of Smt.Chinthamani. Therefore, one can construe that the defendant is in possession of property and has paid electricity and water bills in the name of Smt.Chinthamani. This itself shows that the defendant was tenant under Smt.Chinthamani. Hence I answer Issue No.4 in the affirmative.
35. Additional Issue No.4 :- According to defendant, the suit is bad for non-joinder of necessary party. According to defendant, Smt.Sujatha is necessary and proper party to the suit. In her absence, the Court cannot / 34 / O.S.5674/2008 adjudicate the matter in an effective manner. On 6/11/2014, the impleading applicant by name Smt.Sujatha filed I.A.No. No.16 and on 19/11/2014 I.A.No.16 filed by Smt.Sujatha under Order 1 Rule 10 [2] C.P.C. rejected. Aggrieved by the said order, neither the impleading applicant nor the defendant challenged the said order in the writ petition. Further, Smt.Sujatha examined on oath as DW2. Therefore, Smt.Sujatha is not a necessary and proper party to the suit. Even in her absence, Court can adjdudicate the matter in an effective manner. Thus, I answer this Issue in the negative.
36. Issue No.5 and 6: Having regard to the facts and attendant circumstances of the case and also in view of my findings on Issues No.1 to 4, and Additional Issues 1 to 4, the suit filed by the plaintiff deserve to be decreed. Hence, I proceed to pass the following:
ORDER [a] In the result, the suit filed by the plaintiff is decreed with costs. The plaintiff / 35 / O.S.5674/2008 is declared as owner of suit schedule property.
[b] The plaintiff is entitled for vacant possession of suit schedule property from the defendant. The defendant is directed to hand over vacant possession of suit schedule property to the plaintiff within 3 months from the date of decree. Failure to do so by the defendant, the plaintiff is entitled to recover vacant possession of the suit schedule property through the process known to law.
[c] There shall be a separate enquiry to ascertain damages as contemplated under Order 20 Rule 12 CPC.
Draw decree accordingly.
[Dictated to the Judgment Writer, transcript corrected, signed and then pronounced by me in Open Court, this the 31st day of January, 2015.] (T.VENKATESH NAIK) XIV ADDL.CITY CIVIL JUDGE, BENGALURU CITY.
/ 36 / O.S.5674/2008
ANNEXURE
I. List of witnesses examined on behalf of :
a) Plaintiff's side :
P.W.1 Sri.S.Suderson
b) Defendant's side :
D.W.1 Smt.Kasiyamma.
D.W.2 Smt. Sujatha.
D.W.3 Ramesh Kumar.
II. List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P.1 Certified copy of Gift deed dated 30.4.2007. Ex.P.2 Certified copy of Sale deed dated.21.1.1971 Ex.P.3 Certified copy of sanctioned plan Ex.P.4 Certified copy of Encumbrance Certificate Ex.P.5 Certified copy of Khatha Certificate Ex.P.6 Certified copy of Khatha Extract Ex.P.7 Certified copy of Uttara Pathra Ex.P.8 Certified copy of Letter issued by BWSSB Ex.P.9 Certified copy of letter issued by BESCOM Ex.P.10 Copy of complaint Ex.P.11 Endorsement dated.23.10.2007 Ex.P.12 Notice dated.20.6.2008 Ex.P.13 Postal receipt Ex.P.14 Under Certificate of Posting Ex.P.15 Postal cover Ex.P.16 Legal Notice dated.19.7.2008 Ex.P.17 Legal Notice dated.23.7.2008 / 37 / O.S.5674/2008 Ex.P.18 Under Certificate of Posting Ex.P.19 Postal receipt Ex.P.20 Postal Acknowledgment Ex.P.21 to P.27 Property Tax receipts
b) Defendant's side :-
Ex.D. 1 Death Certificate of Smt.Chintamani Ex.D. 2 Office copy of the Legal Notice dated.20.6.2008 Ex.D. 3 Reply Notice dated.19.7.2008 Ex.D. 4 Postal receipt Ex.D. 5 Postal acknowledgment Ex.D.6 to D.15: Electricity bills Ex.D.16, D.17 Endorsement issued by police. Ex.D.18 Lease agreement dated.5.6.2014 XIV ADDL.CITY CIVIL JUDGE BANGALORE