Bangalore District Court
Rao Bahadur Annaswamy vs Sri.M.Ameen Sait on 27 January, 2016
[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 BANGALORE [CCH.No.28]
Present: Ms.VELA.D.K., B.A.L., LL.B., (Hon's)
XIV ADDL. CITY CIVIL JUDGE
Dated this the 27th day of January, 2016
O.S.No.409/1995
Plaintiff/s : Rao Bahadur Annaswamy
Mudaliar Public Charities,
No.59, Moore Road,
Frazer Town, Civil Station,
Bangalore, represented by
its Managing Trustees.
1. Dr.B.A.Anantharam-
President
2. D.B.Loganathan -
Vice President (Dead)
3. V.P.Manohar -
Managing Trustee
Secretary
4. B.V.Rajashekar - Trustee
5. Anushum - Trustee
6. Dr.Shantha Vadnam -
Trustee
7. The President Mudaliar
Sangha, In capacity as an
Ex-Officio - Trustee
2 O.S.No.409/1995
No.59, Moore Road,
Frazer Town, Civil Station,
Bangalore-560005.
(By Sri.G.Papireddy,
Advocate)
- Vs -
Defendant/s : 1. Sri.M.Ameen Sait
Since deceased by LRs.
1a) Mrs.Sabiha Sait,
w/o. late Ameen Sait,
aged about 48 years
1b) Mr.Nauman Sait,
s/o. late Ameen Sait,
aged about 25 years
1c) Mrs.Nurain Sait,
D/o. late Ameen Sait,
aged about 22 years
1d) Miss.Sadia Sait,
D/o. Ameen Sait,
aged about 21 years
1e) Master.Fuzail Sait,
s/o. late Ameen Sait,
aged about 12 years
Being minor is represented
by his Mother, the natural
guardian Mrs.Sabiha Sait
All are r/at No.7/2,
Spencer Road, Civil
Station, Bangalore.
2. M.R.Mekhri, major,
3 O.S.No.409/1995
w/o late Mekhri
3. Fazlullah Mekhri, major,
s/o. late M.R.Mekhri
4. Azmathullah Mekhri,
major, s/o. late M.R.Mekhri
Defendants No.2 to 4 are
r/at No.32, 7th cross,
Vasantha Nagar,
Bangalore-560052.
(By Sri.S.V.Giridhar for
D-1(a) to (e) and
Sri.U.S.R. for D-2 to D-4)
Date of institution
of the suit : 17-01-1995
Nature of the suit :
[suit on pronote, suit
for declaration and
possession, suit
for injunction] : Declaration,
Possession and
Mesne Profits
Date of the commencement
of recording of the evidence: 04-06-2011
Date on which the
Judgment was pronounced : 27-01-2016
Year/s Month/s Day/s
Total Duration -21- -00- -10-
4 O.S.No.409/1995
JUDGMENT
This is a suit for Declaration, Possession and Mesne Profits.
2. The case of the plaintiff is that the plaintiff is a Public Charitable Trust. It was said to have been created by Sri.Rao Bahadur Annaswamy Modaliar on 31-10-1914 under a Will. It is said to have received judicial seal from the District Court in O.S.No.1/1946 instituted under Section 92 and 93 of the CPC. The scheme is said to have framed in the proceedings for its administration in accordance with the intention of the settlor.
The properties bearing no.5 and 6 old Nos.113 and 114 situated at Brigade Road, Bengaluru are said to be absolute properties of the plaintiff. These properties are said to adjoining to each other facing Brigade Road and divided by a common wall, doors, windows, walls, floors, roofs and other structures, materials used and architecture are said to be similar. The husband of the 2nd defendant and father of the defendants No.3 and 4 late Mr.Mekhri was said to be in occupation of two properties bearing No.5 and 6 belonging to the plaintiff at Brigade Road as a tenant from 1930. He was said to be carrying on the business in 5 O.S.No.409/1995 the name and style of the 'The West End Pharmacy' in the property bearing No.5 old No.114 at Brigade Road i.e., suit property. On his death, defendant No.2 to 4 being the legal representatives are said to have continued to hold and enjoy the schedule property on lease under the plaintiff. The adjoining portion of the schedule property was said to be in occupation of husband of defendant No.2 and the father of defendants No.3 and 4 on lease under the plaintiff. He was said to be using that portion for doing the business of hiring furniture. On his death, the defendants No.2 to 4 are said to have continued to hold and occupy the same as tenants under the plaintiff. The Ist defendant is said to have instituted the eviction proceedings against the husband of the defendant No.2 and the father of defendants No.2 to 4 before the Addl. Small Causes at Bengaluru in HRC No.6621/1980 in respect of the premises described as old No.115 and new No.5 Brigade road civil station, Bengaluru. The boundaries were said to be specified of the said property belonging to the plaintiff. The husband of the 2nd defendant and the father of defendants No.3 and 4 are said to have resisted the claim in the eviction proceedings. He is said to have passed away during the pendency of the said proceedings. Thereupon, the defendants No.2 to 4 were said to have been brought on record and the 6 O.S.No.409/1995 proceedings to have continued against them. The proceedings were said to be against the defendant No.1 as on 24-03-1990. Subsequently, the Ist defendant is said to have preferred a Civil Revision Petition No.3630/1990 to the Hon'ble High Court against the final order passed in HRC No.6621/1980. The defendants No.2 to 4 instead of contesting the revision petition is said to have joined with the Ist defendant and agreed to vacate the premises in the eviction petition. The said Revision Petition was said to be allowed on the terms of collusive compromise petition filed on 19-04-1994. The defendants No.2 to 4 are said to have yielded to give possession of the schedule property to the Ist defendant within 10 days of the said settlement. This settlement reached is said to have resulted in depriving the plaintiff's possession over the suit schedule property.
The Ist defendant is said to have no legal right to proceed against the defendants No.2 to 4 to claim the schedule property. The property bearing No.115 with tile roofing as described in the sale deed executed in favour of the Ist defendant is not a part of the schedule property and its adjoining property belonging to the plaintiff. The description and boundaries of the premises specified in the eviction petition are said to be incorrect. The defendants 7 O.S.No.409/1995 No.2 to 4 were said to be not in occupation of the premises bearing No.115 at Brigade Road civil station, Bengaluru. They are said to be in occupation of the schedule property as a tenant under the plaintiff. The defendant No.1 is said to have illegally proceeded against the tenants of the plaintiffs and taken possession of the schedule property in the guise of order passed in CRP No.3630/1990 based on the compromise petition. The defendants No.2 to 4 are said to have yielded possession of the schedule property to the Ist defendant.
The defendants are said to have committed breach of legal duty in not disclosing the reality. The plaintiff was said to be kept in dark about the eviction proceedings between the Ist defendant and the defendants No.2 to 4. During the first of week of September 1994, one of the trustees is said to have noticed to his surprise that the Ist defendant is said to have occupied the schedule premises and the front open space common to the schedule premises and it is adjoining property to have been closed by putting up new wall and by closing of door that was said to be existing between the schedule premises and adjoining property bearing No.113. On further enquiry, the managing trustee of the plaintiff is said to have come to 8 O.S.No.409/1995 know the eviction proceedings instituted by the Ist defendant against the defendants No.2 to 4 and the settlement reached by them in the said revision petition. Later he is said to have collected and got applied for the copies of the eviction proceedings in order to take legal action.
The plaintiff was said to be in constructive possession of the suit schedule property through defendants No.2 to 4 till defendant No.1 is said to have illegally taken over the possession of the same pursuant to the collusive settlement reached by him with defendants No.2 to 4 in CRP No.3630/1990 on 19-04-1994. It is said to have been wrongfully dispossessed by the Ist defendant in collusion with defendants No.2 to 4. The act of the Ist defendant is said to have affected the vested right in respect of the suit schedule property. The plaintiff is said to be entitled to recover the possession of the schedule property from the Ist defendant who is said to be in its wrongful occupation. The Ist defendant is said to have colluded with defendants No.2 to 4 and to have filed compromise petition in CRP No.3630/1990 and obtained eviction order and subsequently when the Ist defendant is said to have illegally taken possession of the suit schedule property and 9 O.S.No.409/1995 defendants No.2 to 4 yielded their possession of the suit schedule property in the first week of September 1994 and one of the trustees is said to have found that the Ist defendant to be in wrongful occupation of the schedule premises. The plaintiff is said to be not filed any suit on the cause of action for the purpose of court fee. Hence, had filed the suit.
3. In the Written statement the Ist defendant has specifically contended that property bearing No.5, Brigade Road, Bangalore is said to not belong to the plaintiff. The Ist defendant is said to be in possession and enjoyment of the property bearing No.5 as owner from the year 1977 which is said to have purchased for valuable consideration from Mark Mathias and Philip Mathias vide registered sale deed dated 30-05-1977. The said new No.5 is said to be originally bearing Corporation old No.115. In the sale deed, it is said to be mentioned that the southern boundary of the property of the Ist defendant to be the property bearing No.114 (present new No.6). Originally properties old No.113 to 118 belonged to Rao Bahadur B.P.Annaswamy Mudaliar. From the very same Will referred by the plaintiff, old No.115, Brigade Road, Bengaluru was said to be bequeathed to and in favour of Cheluvaraya Mudaliar. On 10 O.S.No.409/1995 the demise of Annaswamy Mudaliar there was said to be an arrangement by way of partition between his widow Rangammal and his three sons affirming the directions given in the will. The deed of partition dated 08-03-1924 was said to be registered document. This document is said to be clearly shown at No.115, Brigade Road, Bengaluru to have fallen to the share of Cheluvaraya Mudaliar.
On 21-10-1943 Cheluvaraya Mudaliar and his only son Ananthasayanam Mudaliar got themselves divided and the property bearing No.115, Brigade Road, Bengaluru had fallen to the share of Ananthasayanam Mudaliar as per the schedule B in the said document. The said Ananthasayanam Mudaliar in exercise of his right of ownership over the property bearing No.115, Brigade Road is said to have mortgaged several persons and also redeemed the said mortgage. On 08-02-1957, Ananthasayanam Muadaliar is said to have sold the property bearing No.115 in favour of Harry Mathias resident of M.G. Road. This was said to be registered before the Sub-Registrar. On 17-06-1970, Harry Mathias is said to have gifted the property bearing old No.115 and his two sons Philip Mathias and Mark Mathias registered in the Sub- Registrar Office, Bengaluru. In all the said documents there 11 O.S.No.409/1995 is said to be refer to the southern boundary of 115 as Rao Bahadur B.P.A. Mudaliar property which is said to bearing old No.114. The gift deed dated 17-06-1970 is said to show that the property bearing No.115 to have been given new No.5. The southern boundary of the said property is said to have been shown as bearing No.114 and new No.6, Brigade Road, Bengaluru.
The Ist defendant is said to have purchased the property old No.115, new No.5 from Mark Mathias and Philip Mathias and thereby is said to be absolute owner. The evidence of M.R.Makheri in O.S.No.1/1946 that the property bearing No.113, Brigade Road to be only water shed attached to property bearing old No.114 and it is said to be merged with property No.114 much prior to the filing the suit in O.S.1/1946. The property No.113 situated at Brigade Road, Bangalore is said to be not a property in existence at all. The Ist defendant is said to be the owner and in possession of the property bearing old No.115, new No.5 with its boundaries on the southern side as property bearing No.114 with new No.6.
M.R.Mekhri was said to be only a tenant of the plaintiff in respect of the property No.114, new No.6, Brigade Road, 12 O.S.No.409/1995 Bangalore. The plaintiff is said to have deliberately given false numbers and boundaries in the schedule to the plaint by laying a claim to a property which does not belong to the Trust. As per corporation records, property No.114 was changed to new No.6 and 115 to new No.5. The description of the suit schedule property has been vehemently denied. The institution of eviction proceedings in HRC No.750/1977 is an undisputed fact. This is said to have been re- numbered as HRC No.6621/1980. On the death of M.R.Mekhri, during the pendency of the proceedings and his legal representatives, defendant No.2 to 4 were said to have been brought on record. M.R.Mekhri in the said proceedings is said to have denied the relationship of landlord and tenant between the defendant No.1 and himself. The controversy was said to have held that the relationship of landlord and tenant to have been established in respect of property bearing old No.115, new No.5, Brigade Road, Bangalore. Though CRP No.4273/1980 was filed by tenant, later it was said to be withdrawn. The relationship between the parties and the existence of the premises were held to be in favour of the Ist defendant in HRC proceedings. CRP No.3630/1990 was said to be pending for a long time and ultimately the defendants No.2 to 4 are said to have agreed to vacate while conceding the 13 O.S.No.409/1995 bonafides of Ist defendant and is said to have vacated bearing old No.115, new No.5, Brigade Road, Bangalore and handed over the possession to the Ist defendant. This court is said to have required to determine the property bearing No.115 which is admitted to have been purchased by the Ist defendant bearing No.5 (new) with definite boundaries. The proceedings initiated is said to show that property was old No.115, new No.5, Brigade road, civil station, Bangalore bounded on North by premises No.116, new No.4 Brigade Road, South by premises No.114, new No.6, Brigade Road, East by common private road and West by Brigade Road.
The property of the Ist defendant is said to be bounded on the South by premises No.114 claimed to be the property of the plaintiff bearing new No.6. The plaintiff is said to be not entitled to recover the property said to belong to the Ist defendant. The possession of the Ist defendant is said to be in respect of property bearing old No.115, New No.5, Brigade Road, Bangalore.
4. In the additional written statement, the legal representatives of deceased Ist defendant have contended that the suit originally filed to be without the consent or 14 O.S.No.409/1995 concurrence of all the Trustees. The Trust is said to have no independent existence of the Trustees. The manager of the Trust purportedly is said to have instituted the suit on behalf of the Trust and consequently the suit is said to be not maintainable. The defect is said to be not curable by way of amendment. Mere amendment to the cause title of the plaint is said to not in any manner demonstrate that the Trust by all the Trustees to have been instituted as on the date of suit.
The written statement of the deceased defendant No.1 has been adopted by these legal representatives of the Ist defendant. Denying all the other averments of the plaint and therefore sought for the dismissal of the suit.
5. The written statement of defendants No.3 and 4 was taken as not filed vide order dated 31-08-1998. Defendant No.2 was reported to be dead on 02-07-1998 and LRs are on record as per Memo of plaintiff, noted in order sheet dated 14-08-1998. Written statement of defendant Nos.3 and 4 was taken as not filed on 31-08-1998.
6. My predecessor-in-office had framed the following issues and additional issue :
15 O.S.No.409/19951. Whether the plaintiff proves that the plaintiff is a public charitable trust created under the will dated 21-10-1914?
2. Whether the plaintiff proves that the property bearing new No.5 Brigade Road is of the ownership of the plaintiff?
3. Whether the plaintiff proves that the husband of defendant No.2 and father of defendant No.3 and 4 was the tenant under the plaintiff in respect of properties bearing new No.5 and 6 and old numbers 113 and 114?
4. Whether the plaintiff proves that the compromise decree obtained by defendants in Civil Revision Petition No.3630/1990 is collusive?
5. Whether the plaintiff proves that it is entitled to recover possession of the suit schedule property from defendant No.1?
6. Whether the plaintiff is entitled to Mesne profits?
7. Whether the defendant No.1 proves that the property bearing old No.115 was assigned with new No.5?
8. Whether defendant No.1 further proves that property bearing new No.5 and old No.115 was 16 O.S.No.409/1995 fallen to the share of Cheluvaraya Mudaliar in a partition dated 08-03-1924?
9. Whether the defendant No.1 proves that in a partition dated 27-12-1943 the property bearing No.115 was allotted to the share of B.C.Anantha Sayanam Mudaliar the son of Cheluvaraya Mudaliar?
10. Whether defendant No.1 proves that B.C.Ananthasayanam Mudaliar sold the property bearing No.115 to Harry Mathias?
11. Whether the defendant No.1 proves that Harry Mathias gifted the said property in favour of Philip Mathias and Mark Mathias under the gift deed dated 17-06-1970?
12. Whether the defendant No.1 proves that he purchased the property bearing old No.115 new No.5 from Philip Mathias and Mark Mathias?
13. Whether defendant No.1 proves that the property bearing Old No.113 was merged with 114 and there is no property in existence bearing No.113?
14. What order or decree?17 O.S.No.409/1995
ADDITIONAL ISSUE DATED 15-02-2008
1. Whether the suit filed by Managing Trustee of Rao Bahadur Annaswamy Mudaliar the Public charities is maintainable?
This issue will be heard as a preliminary issue ADDITIONAL ISSUE DATED 31-03-2011
2. Whether the defendants prove that the suit filed by the plaintiff is not maintainable as alleged under para No.1 of the additional written statement?
7. To prove the case, one of the Managing Trustees cum Secretary of the plaintiff Trust has been examined as P.W.1 and got marked Ex.P-1 to Ex.P-98. The defendant No.1(b) has been examined as D.W.1 and got marked Ex.D-1 to Ex.D-50.
8. The finding on the above issues are as follows :
Issue No.1 : In the Affirmative
Issue No.2 : In the Negative
Issue No.3 : In the Negative
Issue No.4 : In the Negative
Issue No.5 : In the Negative
18 O.S.No.409/1995
Issue No.6 : In the Negative
Issue No.7 : In the Affirmative
Issue No.8 : In the Affirmative
Issue No.9 : In the Affirmative
Issue No.10 : In the Affirmative
Issue No.11 : In the Affirmative
Issue No.12 : In the Affirmative
Issue No.13 : In the Affirmative
Issue No.14 : As per final order
Addl. Issue No.1 : In the Affirmative
Addl. Issue No.2 : In the Negative
REASONS
9. ISSUE Nos.2, 3, 5, 6, 7 TO 13 : The plaintiff has
claimed to be a Public Charitable Trust created under the Will dated 21-10-1914 and the property bearing new No.5 to be in the ownership of the plaintiff. Further that the husband of the defendant No.2 and the father of the defendants No.3 and 4 is to be the tenant under the plaintiff in respect of the properties bearing new No.5 and 6 and old No.113 and 114. The compromise decree in Civil Revision Petition No.3630/1999 obtained by the defendant is said to be in collusive and therefore the plaintiff to be entitled for the possession of the suit property from the Ist defendant.
19 O.S.No.409/1995On the other hand, the defendant has contended that the property bearing old No.115 to be assigned new No.5 and the property new No.5 and old No.115 to have fallen to the share of Cheluvaraya Mudaliar in the partition dated 08- 03-1924 and that further there was a partition dated 27- 12-1943 whereby the property No.115 was allotted to the share of Anantha Sayanam Mudaliar son of Cheluvaraya Mudaliar who is said to have sold the property bearing No.115 to Harry Mathias. In turn Harry Mathias is said to have gifted the property in favour of Philip Mathias and Mark Mathias on 17-06-1970. Further, the Ist defendant has contended to have purchased the property from Philip Mathias and Mark Mathias and that property bearing old No.113 to be merged with No.114 and thereby there was no existence of the property bearing No.113. The suit filed by the Managing Trustees Rao Bahadur Annaswamy Mudaliar is said to be not maintainable and that the amendment of the cause title is said to not entitle the plaintiffs to file the suit. These issues being interlinked therefore are discussed and answered together in order to avoid repetition.
10. Basically, as per the plaint, the description of the suit schedule property has been as follows :
20 O.S.No.409/1995SCHEDULE "All that piece and parcel of the property bearing of No.114, present No.5, situated at brigade road, civil station, Bangalore, measuring East to West on the northern side 55 feet, east to west on the southern side 66 feet, north to south on the eastern side 22 feet, north to south on the western side 25 feet together with a toilet on the eastern rear portion measuring 11 X 7 ½ feet and bounded on :
East by Common passage
West by Brigade road
North by Property bearing
old No.116
South by Property belonging to
the plaintiff bearing
old No.113 and
new No.6."
The suit is filed for Declaration and Possession and to hold enquiry for Mesne Profits. Thereby the scope of this suit has been about the ownership claimed by the plaintiff and the possession from the Ist defendant.21 O.S.No.409/1995
At the outset, it is noted that originally the suit was filed by Rao Bahadur Annaswamy Mudaliar public charities represented by Managing Trustee. Subsequently, the President, Vice President, Managing Trustees, Secretary, Trustees have been joined as plaintiffs on account of the order passed in W.P.No.3624/2008 dated 11-06-2010 passed by the Hon'ble High Court of Karnataka. Thereby the suit is filed on 17-01-1995 whereas the Trustees have been added on 11-06-2010.
The plaint averments has been to the effect that the plaintiff to be Public Charitable Trust created by Sri. Rao Bahadur Annaswamy Mudaliar on 31-10-2014 under the Will. Subsequently, this is said to have received judicial seal in O.S.1/1946 instituted under Section 92-93 C.P.C. In this regard, the certified copy of the Judgment of the said O.S.1/1946 has been produced and it is marked as Ex.P-2. This was instituted by the Collector Civil Station, Bangalore against B.A.Annasamy Mudaliar, Ranganatham, Rao Bahadur B.A.Madhavaraya Mudaliar, B.A.Chelvaraya Mudaliar. It was instituted under order 7 Rule 1 read with section 92 and 93 of C.P.C. and it was decreed on 22-09- 1948. Further there was an order for enquiry in the administration of the estate and the accounts as against 22 O.S.No.409/1995 any of the defendants found to be in possession of the suit properties or the legal representatives of the deceased executors and Trustees and the settlement of the claim for proper administration of the charities, the suit schedule properties and the funds in accordance with the Will of the said Rao Bahadur Annaswamy Mudaliar in accordance to the Will dated 31-10-1914.
11. In the plaint, it is further averred that the husband of the 2nd defendant and the father of the defendants No.3 and 4 late M.R.Mekhri to be the tenant of the properties bearing No.5 and 6 from 1930. As a tenant this Mekhri was said to be carrying on the business under the name and style of West End Pharmacy. Ex.P-3 is the certified copy of the deposition of M.R.Mekhri before the Commissioner dated 28-03-1953 wherein he has stated to be tenant of the property No.114, Brigade Road that was to have been taken on lease from B.G.Acchutaraya Mudaliar. Ex.P-4 is the certified copy of the petition HRC No.6621/1980.
12. The plaintiff is public charitable trust created under Sri.Rao Bahadur Annaswamy Mudaliar on 31/10/2014 under a Will. It secured judicial seal in OS No.1/1946 under Sec.92, 93 of C.P.C. and the concerned documents have 23 O.S.No.409/1995 been marked as Ex.P.2, Ex.P.3, Ex.P.6 and Ex.P.9. The decree passed in OS No.1/1946 has been upheld in RFA No.194/1948-49 as per Ex.P.6. P.W.1 in the oral evidence has stated as follows :
"It is true that in the plaint I have contended that property No.115, Brigade road does not exist"......
"I am aware that the contents of the Will executed by Annaswamy Mudaliar were incorporated during the partition deed dated 08/03/1921 executed by the wife and children of Annaswamy Mudaliar"...... "It is true to suggest that schedule 'C' property of the partition was the property under the Will itself. It is true to suggest that Schedule-I to the will at item No.14 i.e., properties No.113 and 114 are situated at Brigade road, Bangalore and it is given for charity. Charity means the plaintiff Trust herein."
This P.W.1 has also stated to be aware as to when the possession of property No.113 and 114 were given to the charity. Again he has also stated that somewhere in 1924 24 O.S.No.409/1995 the possession to have been given to the charity. This charity i.e., plaintiff is said to be in possession of property No.113 from 1924 and possession of property No.114 from 1994. Both property Nos.113 and 114 are said to measure equally.
In this regard particularly this P.W.1 has also stated that "It is true that property No.113 was to be reserved for water shed...
"Schedule-II to the Will was allotted to one Sri.Achutaraya Mudaliar S/o Annaswamy Mudaliar. Under item No.2, Schedule-II, property No.116, 117 and 118 were allotted to Sri.Achutaraya Mudaliar. It is true to suggest that the schedule-IV of the Will was allotted to Sri.Cheluvaraya Mudaliar S/o Annaswamy Mudaliar. It is true that item No.5 of the Will of property No.115 was allotted to Cheluvaraya Mudaliar. It is true that plaintiff charity was allotted only property No.113 and 114, Brigade road, Bangalore".25 O.S.No.409/1995
OS No.1/1946 was filed by collector for removal of defendant No.1 and 2 from the alleged posts of Trustees from the plaintiff Trust. This suit was decreed and the defendant No.1 and 2 were removed from the posts of trustees.
In regard to the identity of the property, he has stated that "The property bearing No.5 and 6, old Nos.114 and 113 respectively, I say this numbers on the basis of municipal and CTS numbers".
P.W.1 has stated that only properties bearing Nos.113 and 114 belonged to Annaswamy Mudaliar. At this juncture, it is necessary to note that as per the plaint, the description of the property as above noted, has been confined only to property Nos.114, present No.5. The nature of the suggestions put forth to PW1 has been as follows :-
"It is true that under the Will the property Nos.113 and 114 were bequeathed in favour of the plaintiff Trust.".....26 O.S.No.409/1995
P.W.1 has further admitted that OS No.1/1946 was instituted based on the will dated 31/10/1914 executed by Annaswamy Mudaliar under partition dated 08/03/1924.
"It is true that clear measurements of property No.113, 114 were not made available in the scheme suit. OS No.1/1946 or in the Will dated 31/10/1914 or in the partition deed dated 08/03/1924."
This evidence shows that measurement of the property No.113 and 114 were not available either in the Will, partition deed based upon which the OS No.1/1946 was filed which is admitted by this witness. The property of the plaintiff Annaswamy Mudaliar is said to be situated to the south of the property of 1st defendant. It was the Corporation who is said to have assigned No.113 and new No.6 to the said property. The second defendant is said to be in possession of property No.6. Further, the second defendant is said to be in possession of the southern portion of the suit property from 84 years. Infact he has answered to a question as follows :
27 O.S.No.409/1995Question: In all time, the defendant No.2 was tenant in property No.114, Brigade Road, Bangalore?
Answer: The 2nd defendant was tenant in two properties bearing No.113 & 114.
The suggestion to this witness which ofcourse has been denied is "It is false to suggest that, the 2nd defendant was a tenant in property No.115 under Sri. Cheluvaraya Modaliar".
Further the defence denied has been that "On 27.12.1943 the Cheluvaraya Modaliar and his son got partitioned their properties allotted under the partitioned deed dated 08.03.1924 among themselves. Property No.115 was allotted to the son of Cheluvaraya Mudaliar".
He has also stated as follows :
"At no point of time I have enquired about the property No.115 either with the previous trustees or with the family 28 O.S.No.409/1995 members of Cheluvaraya Modaliar. The property No.115 may not be in existence. It is true that I do not have any documents to show that the property No.115 is not in existence".
With regard to the Will he has admitted as follows :
"It is true that there are four schedules in the said will. It is true that the testator Sri. Annaswamy Modaliar wanted to give away A schedule property for charity. It is true that Sri. Annaswamy Modaliar allotted B, C & D schedules to his sons Achyutharaya Modaliar, Madhavaswamy Modaliar and Chaluvaraya Modaliar respectively. It is true that the schedule A of the Will consists plot Nos.113 and 114 of Brigade Road, Bengaluru. It is true that the first son of Sri. Annaswamy Modaliar by name Sri. Achyutharaya Modaliar was allotted with B schedule property among other properties and plots No.116, 117 & 118 of Brigade Road, Bengaluru. It is true that Sri. Chaluvaraya 29 O.S.No.409/1995 Modaliar was allotted with D schedule property including property No.115, Brigade Road, Bengaluru. It is true that the decree passed in O.S.No.1/1946 is in respect of A schedule property of Will dated 31-10-1914. It is true that O.S.No.1/1946 was not pertaining to B, C & D schedule properties of the said Will. I do not know that all the properties under the Will commence from 113 till 117 and adjoining to each other and also situated at Brigade Road, Bengaluru. Witness voluntarily states that I know about plot No.113 and 114 and they are adjoining properties."
Question: According to your plaint property No.5 correspondence with plot No.113 and property No.6 corresponds to plot No.114?
Answer: Plot No.113 corresponds to property No.6 and plot No.114 corresponds with property No.5.
The plaintiffs are said to have never measured plots No.113 and 114. The lease between the 1st and 2nd defendant is said to be renewed at present in respect of 30 O.S.No.409/1995 only one property. In regard to the possession aspect of the said property, P.W.1 has admitted as follows :
"It is true that the 2nd defendant was carrying on business in the name of West End Pharmacy in property No.114 of Brigade Road, Bengaluru."
In this regard, it is necessary to note that the bills issued by the West End Pharmacy as property No.114 have been marked as Ex.P.10 to Ex.P.14 dated 29/07/1949 and among them Ex.P.14 is dated 02/08/1949. Ex.P.15 is the letter addressed by the Drugs Controller to the West End Pharmacy, No.114 requesting to submit the plan, sketch to take further action. The correspondence between the Drugs Controller and the West End Pharmacy, property No.114 is Ex.P.16 dated 05/01/1963, Ex.P.17 dated 05/12/1962 - the inspection of sales premises, Ex.P.18 letter dated 21/01/1961, have been issued by the office of Assistant Commercial Tax office. Ex.P.19 is the registration certificate of the establishment West End Pharmacy and the postal address is shown as No.5, Brigade road, Bangalore and the name of the employer is shown as Ajmath Mekhri and Bhajan Mekhri. Ex.P.20 is the same as Ex.P.19, Ex.P.21 is the certificate of enrolment under the 31 O.S.No.409/1995 Government of Karnataka, West End Pharmacy wherein the location is No.5, Brigade road and this is dated 02/05/1986. Ex.P.22 is the same as Ex.P.21. Ex.P.23 has also the details as property No.5, which is tax paid receipt for the year 1986-87. Ex.P.24 is the same copy as Ex.P.23.
The certificate and renewal of licence in the name of West End Pharmacy is dated 30/11/1987 is Ex.P.25 and it shows that the licence has been renewed from 01/01/1987 to 31/12/1987. Ex.P.26 is the same copy as Ex.P.25. Ex.P.27 is the licence issued for distribution of the drugs retail other than those specified in the schedule addressed to West End Pharmacy and the property No. is shown as 5. This licence was renewed from 27/03/1985 to 31/12/1986. Ex.P.28 is the same copy as Ex.P.27. Ex.P.29 is the licence issued in the name of M/s.West End Pharma, Fizal Mekhri and Azmath Mekhri, premises bearing No.5. It is same as Ex.P.27. Ex.P.30 has the same details as per Ex.P.29. Ex.P.31 is the registration certificate issued in the name of West End Pharmacy, No.5. Ex.P.32 is the certified copy issued which has the same details as per Ex.P.31 and registration No.07308152/86-87. Ex.P.33 is the form of approval and option issued under Drugs and Cosmetics Act issued to the West End Pharmacy, property No.5. Ex.P.34 32 O.S.No.409/1995 has been addressed to the West End Pharmacy by the Branch Manager of the property No.5 about enhancement of limit. Ex.P.35 is issued by the Central Bank dated 17/10/1986 with the details as property No.5. The copy of the same is Ex.P.36. Ex.P.37 is the certified copy of the statement of the monthly turn over and tax paid for month of December, 1988 submitted by Fazal Mekhri wherein the address of the dealer is mentioned as West End Pharma, No.5 and the monthly turn over was furnished for a period of 01/12/1988 to 31/12/1988.
13. The defence has been that the 2nd defendant was tenant in respect of building No.115 under the Cheluvaraya Mudaliar. However, that plot Nos.113 and 114 was merged with plot No.114 and subsequently renumbered as property No.6, Brigade road, Bangalore. The 2nd defendant was said to be carrying on the furniture business in new property No.6 and old No.114. Therefore, it means that the contention has been the identity of the property old No.114 and new No.6.
P.W.1 has stated that khatha of property No.5 to be standing in the name of plaintiff Trust. After 1995, plaintiff 33 O.S.No.409/1995 Trust is said to be not paying any tax in respect of property No.5, Brigade road, Bangalore. He has stated "My statement that I paid tax in respect of property No.5 means that we paid taxes in respect of plot No.114 of Brigade Road.".....
"It is true that the western boundary to properties 113 & 114 is Brigade Road. According to me property No.116 may exist and it bears new No.4. I do not know who is in occupation of property No.4. The son of Chaluvaraya Modaliar never challenged the sale deed dated 08-02-1957 in respect of plot No.115 of Brigade Road. Even the plaintiff Trust never challenged the subsequent sale deeds executed in respect of plot No.115. It is true that it is not our case that plot No.115 does not exist"...
The property No.114 is said to have corresponding of property No.5.
"It is true to suggest that under Ex.P.9 a scheme was settled for functioning of plaintiff charity and a list of properties were 34 O.S.No.409/1995 also prepared. It is true that last item Sl.No.26 in the schedule of Ex.P.9 is property No.114 of Brigade road. Witness voluntarily states that schedule to Ex.P.9, property No.113 though not appear, I will undertake to produce the same on the next date of hearing."
Therefore, from the very nature of the evidence and the suggestion put forth to the witness, it means that defence has been that old No.114 to have allotted new property No.6 whereas P.W.1 has stated that property No.5 to be plot No.114. The defence further has been that legal representatives of the second defendant to have handedover the possession of plot No.115 to the legal representatives of defendant No.1. The khatha of plot No.115, new No.5 was to be standing in the name of Cheluvaraya Mudaliar. Subsequently, his son sold the property No.115 in favour of Harry Mathaias and khatha was accordingly changed. The 1st defendant purchased the plot No.115, new No.5 under registered sale deed dated 30/05/1977 from the children of Harry Mathaias.
35 O.S.No.409/199514. The defendants have produced the corresponding documents in this regard which shall be discussed subsequently. Ex.P.39 is the copy of monthly turn over statement from 01/10/1988 to 31/10/1988 of the West End Pharmacy, No.5. Similarly such certified copy of the statements have been produced as per Ex.P.40 to Ex.P.94 and they are for the period from 01/09/1988 to 30/09/1988, 01/08/1988 to 31/08/1988, 01/07/1988 to 31/07/1988, 01/06/1988 to 30/06/1988, 01/05/1988 to 31/05/1988, 01/04/1988 to 30/04/1988, 01/03/1988 to 31/03/1988, 01/02/1988 to 29/02/1988 and 01/01/1988 to 31/01/1988. From January, 1987 to December, 1987, the concerned monthly statements have been marked from Ex.P.60 to Ex.P.49. Ex.P.65 to Ex.P.61 are for the months of August, 1986 to December, 1986. Ex.P.77 to Ex.P.66 are for the months from January, 1988 to December, 1988. The said statements from January, 1987 to December, 1987 are Ex.P.89 to Ex.P.79. Similarly such statements from August, 1986 to December, 1986 as per Ex.P.94 to Ex.P.90.
15. In the oral evidence P.W.1 has admitted that Ex.P.3 to Ex.P.98 are the certified copies and to have been produced 36 O.S.No.409/1995 in HRC litigation bearing HRC No.6621/1980. He has further stated that "It is true that I have obtained some of the documents from HRC No.6621/1980.
It is true Ex.P-10 to P-18 documents are pertaining to West End Pharmacy, Plot No.114, Brigade Road, Bengaluru. It is true that the documents at Exs.P-19 to P-94 have come into existence subsequent to filing of HRC petition 750/1977....." With regard to possession, he has stated as follows :
"It is true that the 2nd defendant was carrying on business of furniture in the name of Inayath & brothers in property No.113 & 114".....
"It is true that the property No.115 of Brigade road was not given to our charity.
It is true that the property No.115 of
Brigade Road was not included in
O.S.No.1/1946".
37 O.S.No.409/1995
16. With regard to the photographs, P.W.1 has stated that Ex.D-1 to Ex.D-5 pertain to the properties situated at Brigade Road, Bangalore commencing from North-South from the left hand side. He has stated as follows :
"The first shop is let out to Regal watch company, next is Park Avenue, third one is let out to Band Box followed by KFC restaurant fifth shop is let out to the defendant and the last shop is let out to Puma Showroom.
.....................
It is true that the shop let out Puma showroom appearing in Ex.D-3 is in occupation of LRs of the 2nd defendant. It is true that the shop let out to Bollywood shoes and bags appearing in Ex.D-3 is in occupation of the Ist defendant for which this suit is filed."
He has also stated the property No.114 to have corresponding number as 5, situated at Brigade Road. Specifically, he has stated that chalta number of suit property as 73 and P.T.Sheet No.838 and identified sketch issued by ADLR marked as Ex.D-6. Ex.D-6 is the sketch 38 O.S.No.409/1995 issued wherein there is shown the situation of the chalta No.73. Inspite of production of the sketch, P.W.1 has stated that this chalta No.73 to be in occupation of the Ist defendant, it is situated at Brigade Road and the suit is not pertaining to chalta No.73. At the same time, he has also stated that the present suit as per Ex.D-6 to have been filed in respect of chalta No.73.
17. D.W.1 has specifically stated that the boundaries to the property bearing No.115, Brigade Road conveyed under the sale deed dated 08-02-1957 to be bounded on East by common private road leading from the rear of the schedule premises to Mahatma Gandhi Road, West by Brigade Road, North by property bearing No.116 of Mrs.Sundaravandanan, Brigade Road and South by property bearing No.114, Brigade Road. He has identified the certified copy of the partition deed dated 08-03-1924 marked as Ex.D-7 and its typed copy is Ex.D-7(a). This document has been executed between Mrs.Rangammal widow of late Rao Bahadur B.A.Annasami Mudaliar first party, Achutaraya Mudaliar 2nd party, B.A.Madhavaraya Mudaliar third party, B.A.Chelvaraya Mudaliar fourth party. It mentions that late Rao Bahadur B.P.Annasami Mudaliar to have passed away on 22-01-1924 leaving behind the will dated 31-10-1914.
39 O.S.No.409/1995As per this document in reference to the suit property, one of the property allotted to B.A.Achutaraya Mudaliar is the premises No.115 in Brigade Road. This measurement which is admitted by P.W.1 in the oral evidence. The certified copy of the plaint of O.S.1/1946 which is relied upon by the plaintiff, has been infact produced by the defendant as Ex.D-8. It is the suit filed by the Collector against B.A.Annasamy Mudaliar, Ranganatham, Rao Bhadur B.A.Madhavaraya Mudaliar, B.A.Chelvaraya Mudaliar. The suit was filed to remove the defendants No.1 and 2 from the post of Trustees to appoint defendants No.3 and 4 as Trustees or any other person as deemed fit for administration of the Trust. In the description of the schedule, the description is at Sl.No.37 as 114, Brigade Road, Bangalore. The certified copy of the deed of declaration dated 21-10-1943 is Ex.D-9 and its typed copy as Ex.D-9(a). This document has been executed by B.A.Achutharaya Mudaliar son of late Rao Bahadur B.P.Annasamy Mudaliar and Ananithasayama Mudaliar son of B.A.Achutharaya Mudaliar stating that the father and the son to have divided from 01-10-1943. The share of Ananthanarayana Mudaliar which is 'B' schedule includes this property No.115, Brigade Road. This means that the partition has taken place between the Achutaraya Mudaliar 40 O.S.No.409/1995 and his son Annasamy Mudaliar. Ex.D-10 is the certified copy of the simple mortgage deed dated 10-10-1953 and its typed copy Ex.D-10(a) which is executed by M/s.Simran and Co., Ltd., carrying on business at No.3A, Osborne Road, Civil Station, Bangalore and Anantha Sayanam son of Cheluvaraya Mudaliar as mortgager in favour of Manoranjini Arunachalam wife of Arunachalam Mudaliar as a mortgagee. The simple mortgage was sum of Rs.15,000/- to enable the mortgagers to make the supply including by the Government of Mysore. The property mortgaged has been the premises No.115, Brigade Road, Bangalore bounded on East by common Road, West by Brigade Road, South by RBBPAM'S Public charities property and North by Mrs.Sundara Varaman's property. Ex.D-11 is the certified copy of the deed of discharge of simple mortgage dated 31- 03-1954 as per the oral evidence of D.W.1. Ex.D-12 is the original deed of usufructuory mortgage deed 15-06-1955ed by Ananthasayanam son of Cheluvaraya Mudaliar and Anantharaman represented by guardian and father Ananthasayanam as mortgagors in favour of Ziauddin Ahmed. This document has reference of the partition dated 21-10-1943 above noted as per the deed of declaration, property mortgaged has been premises No.115, Brigade Road, Civil Station, Bangalore bounded on East by Road, 41 O.S.No.409/1995 West by Brigade Road, North by Mrs.Sunder Vadanan's property and South by Rao Bahadur B.P.Annasami Mudaliar's public charities property and the shop premises bearing Nos.14 to 16 is in reference to premises No.115 it means that the plaintiff's property is situated to the South of the premises bearing No.115. The suit property is bearing No.114. Ex.D-13 is the indenture of the lease dated 15-06-1955 between Sri.Ziauddin Ahmed son of Gulam Moheedin Saheb after called as Lessor and Ananthasayanam son of Cheluvaraya Mudaliar as Lessee. It means that the premises No.115 referred to Ex.D-12 has been leased. Ex.D-14 is the sale deed dated 08-02-1957. Anantharaman represented by minor guardian Ananthasayanam in favour of Harry Mathias and the property sold has been described as 115, Brigade Road, Civil Station, Bangalore bounded on North by Sundaravadanan's property bearing No.116, Brigade Road, South by premises No.114, Brigade Road, East by a common private road leading from the rear of the schedule premises to Mahatma Gandhi Road and West by Brigade Road. This further mentions that while separating property No.115 and 116 to be common to both the premises and the wall separating 115 and 114 (at present temporarily dismantled) belongs to 115, Brigade Road. So it means 42 O.S.No.409/1995 that the property premises No.115 was not only mortgaged leased, but it has been sold. In this document it undoubtedly mentions that the premises No.115 was allotted to the first vendor i.e., Ananthasayanam in the partition dated 31-10-1943 which is already noted above. Ex.D-15 is the gift deed dated 17-06-1970 executed by Harry Philip Mathias in favour of Philip Mathias and Mark Mathias represented by his mother. In regard to Municipal No.115 (new No.5) Brigade Road, further description of the property SCHEDULE "All that piece and parcel of land together with buildings thereon being No.115 (New No.5) Brigade Road, Civil Station, Bangalore bounded on the North by Property No.116 (New No.4) Brigade Road, Bangalore, on the South by premises No.114 (New No.6) Brigade Road, Bangalore, on the East by a common private road leading from the rear of the schedule property to Mahatma Gandhi Road and on the West by Brigade Road. The wall separating No.115 (New No.5) and No.116 (New No.4), Brigade Road, is common to 43 O.S.No.409/1995 both the properties and the wall, at present temporarily dismantled, separating No.115 (New No.5) and No.114 (New No.6) belong to No.115 (New No.50 Brigade Road, Bangalore."
That means only at the time of gift deed dated 17-06- 1970 it has the description of the property as new No.5 to the premises No.115 and the boundaries are the same as discussed in the earlier documents. Ex.D-16 is the sale deed dated 30-05-1977 executed by Mark Mathias and Philip Mathias in favour of Ameen Sait son of Ishaq Sait and represented by their mother Patricia Mathias. This document shows that the property sold has been described as follows :
SCHEDULE All that piece and parcel of land together with buildings thereon bearing old No.115, New No.5, Brigade Road, Civil Station, Bangalore bounded on the :
North by Property No.116,
New No.4, Brigade Road
South by Premises No.114,
New No.6, Brigade Road
East by a common private road
44 O.S.No.409/1995
leading from the rear of
the schedule property to
Mahatma Gandhi Road
West by Brigade Road;
The wall separating No.115, New No.5, and No.116, and new No.4, Brigade Road is common to both the properties and the wall at present temporarily dismantled separating No.115, New No.5, and No.114, and New No.6, belong to No.115, New No.5, Brigade Road, Bangalore. The building is old construction. The walls are made at bricks, the roof is Mangalore Tiles, there is electricity and no water. No garage or well. The dimensions are as per the plan attached."
Ex.D-17 is the assessment extract from 1950-51 to 1954-55 of old bearing No.115 which has the name of Ananthasayanam. This entry is also found in the Assessment extract from 1955-56 to 1959-60 as per Ex.D-
18. Ex.D-19 is the Assessment Extract from 1967-68 to 1972-73 but here there is mention as old No.115 and new No.5. Ex.D-20 has the details as per Ex.D-19 and Ex.D-21 is the assessment extract for the year 1978-79 to 1982-89 45 O.S.No.409/1995 and the old No.115 and new No.5 in the name of Ameen Sait. Ex.D-22 is the assessment extract from 1989 to 02- 07-1994 that has the entry in the name of Ameen Sait. Ex.D-23 is the assessment extract from 1950-51 to 1954- 55 that has the entry of Achutharaya Mudaliar for old No.114 which is the present suit schedule property. Ex.D- 24 is the assessment extract from 1955-56 to 1959-60 which has the entry of Rao Bahadur B.P.Annaswamy Mudaliar Charities the owner of the property No.114. Ex.D- 25 is the endorsement issued by the City Corporation, Bangalore dated 03-10-1970 stating that katha bearing No.115, New No.5, Brigade Road to have been transferred to the name of Philip Mathias. Another endorsement issued by City Corporation, Bangalore dated 19-07-1977 is Ex.D- 26 stating that there is mentioned as katha bearing old No.115, New No.5, Brigade Road to have been transferred to the name of Ameen Sait. Therefore, revenue entries have also been made in consonance with the sale deeds, gift deed noted above. Ex.D-27 is the assessment extract for the year 1967-68 to 1972-73 which has the entry in the name of Rao Bahadur Annaswamy Mudaliar Charities for old No.114, New No.6. Ex.D-28 is also similar entry this is for the year 1972-73 to 1977-78. Ex.D-29 has the same entry for the year 1978-79 to 1982-83. These documents show 46 O.S.No.409/1995 about the existence of the building. Tax paid receipts of premises No.115, new No.8 for the year 1977-78 to 1981- 82 are Ex.D-31 to Ex.D-34 in regard to the premises No.5, cited to Ex.D-31 to Ex.D-34 and No.115, new No.5 cited in Ex.D-30. Ex.D-35 to Ex.D-37 are the tax paid receipts for the property No.5 for the year 1990-91 to 1993-94. Tax paid receipts are all in the name of latest purchaser Ameen Sait except Ex.D-30. Online property tax paid receipts for the year 200-8-2009 to 2014-15. Ex.D-40 is the certificate of compliance under section 65-B of the Indian Evidence Act, 1872 by way of affidavit. Ex.D-41 is the khatha extract of old No.114 dated 01-04-2015 in the name of Annaswamy Mudaliar Charities and the khatha certificate Ex.D-42 is in the name of Ameen Sait of municipal No.5, Brigade Road, Bangalore. Ex.D-43 is the khatha extract of new No.5 dated 01-04-2015 in the name of Ameen Sait. There is entry in the name of Ameen Sait in the khatha document of the property No.115 or new No.5. Ex.D-44 is the encumbrance certificate from 01-04-2004 to 31-03-2015 in regard to old No.115, new No.5 which has the description of the southern property as 114, new No.6. Ex.D-45 is the encumbrance certificate for the period 01-04-1924 to 31- 03-2004 that has the entry of the partition sale deed, gift deed which are all noted above.
47 O.S.No.409/1995Ex.D-46 is the certified copy of the order passed in HRC No.6621/1980 was filed against M.R.Mekhri, the petition was filed under 29(1) and (4) of Karnataka Rent Control Act, 1961 seeking direction to the respondent to pay the deposit arrears of rent due from 01-06-1977. The eviction petition was filed in regard to the premises bearing old No.115, new No.5, Brigade Road, Civil Station bounded on North premises No.116, new No.4, Brigade Road, South by premises No.114, new No.6, Brigade Road, East by common private road and West by Brigade Road. In this litigation, it has been held that there is existence between the landlord and the tenancy between Ameen Sait and Mekhri and Mekhri was directed to pay the arrears of rent. Ex.D-47 is the certified copy of the enquiry notice dated 18- 04-1977 inviting the same that the property bearing Corporation No.5 and 6 situated at Brigade Road, Bangalore belonged to the Charity Trust constituted under the High Court Appeal No.194/1948-49 dated 08-12-1950. As per this document only the premises bearing new No.6 belong to the Charities Trust and the premises bearing new No.5 belongs to Phillip Mathias and Mark Mathias on account of the gift which is already noted above. Therefore, the date was fixed inviting the production of the documents. Ex.D-
48 O.S.No.409/199548 is the reply given by the plaintiff to the enquiry office in Ex.P-47. In this reply it is mentioned as follows :
"It is hereby confirmed that only property No.(New) 6 6 Brigade Road belongs to the above charities.
In case the statement recorded in your office is different from the above confirmation, please amend the statement accordingly. Inevidentally, the under signed does not remember to have claimed ownership to Nos.New 5 and 6 Brigade Road for the above Charities."
Ex.D-49 is the proceedings of the meeting dated 17- 09-1977 of the Board of Trustees of Rao Bahadur B.P.Annaswamy Mudaliar whereby the secretary has been various to settle dispute. This does not have any reference of the suit property. Ex.D-50 is the certified copy of the list of the properties owned by the plaintiff Trust. It does not include the suit property.
18. In the oral evidence, D.W.1 has firstly stated that sons of Mekhri to the defendants No.3 and 4 and they are said to be in possession of the adjoining property on the south of 49 O.S.No.409/1995 the suit schedule property as tenants under the plaintiff trust. He has admitted as follows :
"It is true that my father took possession of the suit schedule property from defendants No.2 to 4.
..............
"It is true that defendants No.3 and 4 are sons of late Mekhri. It is true that defendants No.3 and 4 are in possession of the adjoining property on the south of the suit schedule property as tenants under the plaintiff Charity Trust. It is true that M.R.Mekhri was the tenant in property No.113, 114 in Brigade Road as a tenant under the plaintiff's Trust."
He has also admitted that in the sale deed dated 30- 05-1977 executed in favour of Ameen Sait, there is mentioned as Mangalore Tiled roof in regard to the property No.15. The exact words are as follows :
"It is true that there is no mention of the measurement of the property in the schedule of Ex.D-16". He has further stated that measurement is shown in the 50 O.S.No.409/1995 sketch and stated : "I am not aware if only for the first time the measurement has been shown in the sketch and statement. "It is true that in Ex.D-16 the vendors are Mark Mathais and Phillip Mathais. It is true that the said vendors have not signed Ex.D-16. Ex.D-16 has been signed by mother of the vendors Patrick Mathais. The mother has signed in the capacity duly constituted agent. There are no documents to show that the mother, Patrick Mathais was duly constituted against of the vendors in Ex.D-16. It is true that even in the sketch Patrick Mathais has signed as an agent of the vendors."
He has also stated that as follows :
"I have seen the documents pertaining to property No.115 prior to 1977. It is true that the measurement of that property is not shown in sale deed Ex.D-14 and in the Gift deed Ex.D-15."51 O.S.No.409/1995
He has stated further as follows :
"It is true that sketch is not enclosed along with Ex.D-14 and Ex.D-15. I am not aware if earlier to 1957 also the measurement of that property was not shown in the documents. I don't remember the description of the suit schedule property."
He is not aware if there has been Madras terrace roof in regard to the property Nos.116, 113 and 114. At the same time he has also admitted that at the time of eviction petition filed which is already noted above it was Madras terrace roof and not Mangalore tiled roof.
He has also admitted as follows :
"It is true that M.R.Mekhri was not a tenant in regard to two properties namely 113 and 114 as a tenant under the plaintiff's Trust."
According to him, M.R.Mekhri is said to have furniture business in 113 and 114 and Western Pharmacy in 115. He has also stated and admitted as follows :
"It is true that Ex.P-10 to Ex.P-14, M.R.Mekhri was doing Western Pharmacy 52 O.S.No.409/1995 business in property No.114 in Brigade road in 1949."
The Corporation of Bangalore is said to have assigned the New No.5 to the corresponding property No.115 somewhere in 1960 to 1967. Practically he has also stated as follows :
"It is true that the defendants No.2 to 4 have been carrying on the business in property No.113. He also states that they have been carrying the business both in 113 and 114."
According to him, property No.113 is colluded with property No.114, so he cannot say the individual measurement of either of the property. At the time of the allotment of the New No.5, the property Nos.113 and 114 together were allotted with the New No.6. At the same time he has also stated that "There are no documents to show that the property Nos.113 and 114 are amalgamated. It is false to suggest that property Nos.113 and 114 are independent properties. The property Nos.113 and 114 53 O.S.No.409/1995 are existing as a single property. It is false to suggest that No.113 and 114 are divided by a wall."
Therefore, from the oral evidence adduced before the Court, it means that the property No.115 is not allotted to the plaintiff trust and it was not in dispute in OS No.1/1946. Again it has to be repeated that basically the dispute between the parties is with regard to the identity of the suit property. In the plaint as above noted the description the suit property has been the property bearing old No.114 and present No.5 bounded on East by common passage, West by Brigade road, North by old No.116, South by property belonging to plaintiff bearing old No.113 and new No.6. When the boundaries are concerned, it means that after the old property No.113, immediately there is suit property No.114 and thereafter to the north is old property No.116. Then, where is the property old No.115? Infact Ex.P.1, which is the judgment of OS No.1/1946 filed against the removal of 1st defendant as trustee, as the description of the property as per plaint produced by the defendant above noted marked as Ex.D.8. at Sl.No.37 as property No.114, Brigade road, Bangalore. Thereby the present suit property indeed was under litigation in that suit. It is an undisputed 54 O.S.No.409/1995 fact that there was HRC petition filed for eviction by deceased defendant No.1 Ameen Sait against the present second defendant. The certified copy of the Judgment of this petition is Ex.P.98. In this petition, the first point for consideration has been as follows :
1. Whether the petitioner has proved the existence of the premises as described interest he petition schedule ?
The schedule of that suit OS No.1/1946 consists of 41 items and the suit property is at Sl.No.37 which is above noted. There is finding in this petition that the schedule property to be in existence. Thereby at the time of the judgment of this HRC petition dated 24/03/1990, it means that the property was bearing No.114 only. The plaint copy of this HRC petition is produced by the plaintiff marked as Ex.P.4. The description of the property in this petition has been of all piece and parcel of land together with plot therein old No.115, new No.5, Brigade road, Civil Station, Bangalore bounded North by premises No.116, new No.4, South by premises No.114, new No.6. Therefore, in this petition the property No.114 with new No.6 is shown as southern boundary of the property old No.115, new No.5.
55 O.S.No.409/1995When the boundaries of the suit property is compared with the boundaries of the HRC petition, it shows that eastern, western and northern boundaries are same. The only variation is southern boundary. It is interesting to note that southern boundary is shown as old No.113 and new No.6 in the suit schedule property whereas in HRC petition, the southern boundary is shown as premises No.114, new No.6. Therefore, there is recital in the description as old No.113 to be given new No.6 in the present suit, but in the HRC petition, the description is given as old No.114 with new No.6. This new No.6 thereby is as per the plaint and this HRC petition allotted to both old property No.113 and 114. This present suit is filed subsequent to filing of the HRC petition, but the description of the southern boundary is not in accordance to the HRC petition. The base for claiming the suit property by the plaintiff has been even this findings of HRC petition. The existence of the old property No.115 is the petition schedule premises of this HRC petition. When the northern and southern boundary along with petition property shown in the HRC petition is considered, it means that the property No.115 is in existence between the property No.116 and 114. Further, the southern boundary in the schedule property is old property No.113. This means that 56 O.S.No.409/1995 the old property Nos.113 to 116 are situated adjoining each other chronologically. The new numbers allotted has been for the old property Nos.113 as 6, 114 as 5 and 116 as 4 as per the plaint. But new number is allotted is mentioned as 6 to property No.114 and new No.5 to the old No.115 in the HRC petition. But the suit property is shown as old No.115 with present No.5. The present No.5 appears to old property No.115 in the HRC petition whereas in the present No.5 is shown to be the old No.114.
The admitted fact of tenancy from the evidence of D.W.-1 means that tenancy in regard to the property situated to the south of the suit property which is old No.113, new No.6 whereas Mr.M.R.Mekhri was the tenant of the property No.113, 114 under plaintiff Trust.
19. The scope of the suit has been to declare that the plaintiff is the absolute owner of the suit schedule property and to direct the 1st defendant to deliver the possession of the suit property to the plaintiff. This means that the possession of the suit property is not with the plaintiff. It is the plaintiff who has filed the suit before the Court. Therefore, it is incumbent upon the plaintiff to prove the case. The nature of the documents relied upon by the 57 O.S.No.409/1995 plaintiff has been the judgment in OS No.1/1946, HRC No.6621/1980. The scope of OS No.1/1946 was only about the removal of the Trustee which is discussed above. But the property at Sl.No.37 is bearing old No.114. Further, the description of the plaint along with HRC petition also means new No.6 is said to be pertaining to old No.113 as well as 114. This means that new No.6 was allotted to the old No.113 as well as 114. In the above suit the plaintiff has claimed the property No.114 to be allotted with new No.5, in the HRC petition the old No.115 is shown to be to have been allotted with new No.5. Therefore, from this description the old property No.114 and 115 were allotted, the both new No.5. How could this be possible? Particularly that description the HRC petition was filed as old No.115 with new No.5 whereas in the present suit, old No.114 is shown as new No.5. It is relevant to note that the objections statement as well as the deposition of HRC petition have been produced marked as Ex.P.96 and Ex.P.97. There is a finding in the HRC No.6621/1980 with regard to the description produced as per Ex.P.98 that Mr.Mekhri in the evidence to have admitted the property No.113 later merged with 114. This 114 prevented the adjoining property No.115. The situation of this property stated in the Judgment are relevant in terms of Section 42 58 O.S.No.409/1995 and 43 of Indian Evidence Act as they pertain to the same description of the property as the present suit. Mr.M.R.Mekhri to be the tenant of the property Nos.113 and 114 is admitted by D.W.1.
20. At this juncture it is necessary to refer the rulings relied by the learned counsel for the plaintiff reported in (2012) 5 Supreme Court Cases 370 (Maria Margarida Sequeira Fernandes and others V/s Erasmo Jack De Sequeira(dead) through LRs, wherein it is held that :
A. Property Law- Possesion- Classes of Possesion: (1) Possesion in consequence of proprietary interest; (2) Possession in consequence of licensory or contractual right; (3) Gratuitous or purely permissive possession; and (4) Trespassry possession- Distringuised-Easements Act, 1882- Suit schedule B property.52 and 60-Transfer of property Act, 1882, Ss.55(1)(f), 58(d) and 108(b).
C. Specific Relief Act, 1963- Ss 6,5, 38, 39 and 41- Suit for injunction by person claiming right to continue in possession of 59 O.S.No.409/1995 immovable property or to recover possession- Involves adjudication of title and adjudication of possession- If title of defendant to property is established, possession of plaintiff would be presumed to be permissive in nature- plaintiff with such permissive possession must give detailed particularized and specific pleadings alongwith documents to support his claim and details of subsequent conduct which establish his right to continue possession- Details which must be pleaded, enumerated (though not exhaustively)- Court should frequently use power under S.30 C.P.C.- It must carefully and critically examine pleadings and documents before framing issues- Vague pleadings would not raise any issue- Property Law- Possession- Possessory title- Limits of -Civil Procedure Code, 1908- S,30, Or,11 and Or.14 R.2- Transfer of property act, 1882, Ss 55(1)(f), 58(d) and 108(b).60 O.S.No.409/1995
D. Civil Procedure Code, 1908- Or.6 R.2-
Pleadings-Importance of- Detailed
particularized and specific pleadings
needed- Pleadings must raise sufficient cause of action- Detailed pleadings which a person claiming possession of property must give, stated."
1956 S.C. 593 (S) AIR V 43 C 103 Oct. (Nagubai Ammal and others V/s B.Shama Rao and others), it is held that :
(a) Transfer of Property Act (1882), S.52-
Suit for maintenance and for creation of charge on specific property- Lis when commences.
(c) Transfer of Property Act (1882), S.52- Collusive proceeding and fraudulent proceeding-Distinction between.
21. The parties before the Court are aware of the dispute with regard to the identity of the property on account of the earlier litigations. Hence, the benefit of decisions report in 61 O.S.No.409/1995 1956 S.C. 593 (S) AIR and AIR 1974 Supreme Court 471 cannot be availed by the plaintiff. On the other hand, in terms of contention taken up in the written statement, the defendants have produced sale deeds, gift deed, mortgage deed, lease deed, partition deed which are already noted above. On account of nature of the evidence adduced by the plaintiff before the Court invariably question of granting mesne profit cannot arise. The suit property is 114.
22. With regard to partition, the typed copy of the partition as above noted as Ex.P.7(a). Cheluvaraya Mudaliar is the 4th party in this partition deed who has been allotted the property No.115 at Sl.No.5. The partition deed dated 27/12/1943 is marked as Ex.P.9 and its typed copy is Ex.P.(a). The property No.115 is at Sl.No.2 fallen to the share of Ananthswamy Mudaliary. On account of documents produced by the defendant, the case of the plaintiff is therefore contravened and issue Nos.2, 3, 5, 6 are answered in the NEGATIVE, issue Nos.7 to 13 in the AFFIRMATIVE.
23. ISSUE NO.4 : Ex.P.5 is the certified copy of the order passed in CRP No.3630/1990 filed by the deceased defendant No.1 against LRs, Mr.M.R.Mekhri. That civil 62 O.S.No.409/1995 revision petition was preferred against the order dated 24/03/1990 passed in HRC No.6621/1980. On account of the description of the property in the said HRC No.6621/1980 when compared with the present suit schedule property, the claim of the petition that it was a collusive terms decree obtained by the defendant is not accepted. Admitted fact about the possession of the situation of the property and on account of the situation of the property, it can be inferred from the comparison of the property description of the HRC petition in the present suit, this issue is answered in the NEGATIVE.
24. ADDITIONAL. ISSUE NO.1 DATED 15-02-2008 : The present suit has been filed by the plaintiff claiming to be a charitable trust creating new Will dated 31/10/1914 by Sri.Rao Bahadur Annaswamy Mudaliar. The trustees have been impleaded by way of amendment to the cause title of the plaint. Hence, the contention that suit is not maintainable is not acceptable and this issue is answered in the AFFIRMATIVE.
25. ADDITIONAL. ISSUE DATED 31/03/2011 : The contention in the additional written statement has been that the original suit filed without consent or concurrence of all 63 O.S.No.409/1995 the trustees. The trust have no independent existing trustees. The suit was defective from the date of institution by way of amendment, impleaded trustees cannot validate the suit.
The suit is filed by Trust claiming to be owner of the suit schedule property and subsequently the trustees have been added by way of amendment. Existence of right to the plaintiff trust is to be established by the plaintiff who has come before the Court. The trust can always institute the suit with respect of the property which has claimed to be in its ownership. In the present case, plaintiff trust has heavily relied upon the decree passed in OS No.1/1946 which pertains to the removal of the trustees. Such being the case, this additional issue is answered in the NEGATIVE.
26. ISSUE No.1 : There is clear finding about the existence of the Trust under the Will in OS No.1/1946 for which the Judgment has been produced as per Ex.P.2. Ex.P.1 is the resolution said to be passed by the trustees in favour of one UmberKoman. P.W.1 is the Managing Trustee cum Secretary of the plaintiff public charity Trust. The existence of the plaintiff trust is supported by findings and decree in OS No.1/1946. That was filed under Section 92 64 O.S.No.409/1995 and 93 of C.P.C. Hence, this issue is answered in the AFFIRMATIVE.
27. ISSUE No.5 : Due to forgoing reasons the following:
ORDER The suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
[Dictated to the Judgment Writer, the transcript thereof is corrected and then pronounced by me in Open Court, this the 27th day of January, 2016.) (Ms. VELA.D.K.) XIV Addl. City Civil Judge Bangalore.
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ANNEXURE List of witnesses examined on behalf of plaintiff :
P.W.1 Sri.V.P.Manohar List of documents exhibited on behalf of plaintiff :
Ex.P.1 Resolution Ex.P.2 Copy of the judgment in O.S.1/1946 Ex.P.3 Deposition of M.R.Mekhri Ex.P.4 Copy of the petition in HRC No.6621/1980 65 O.S.No.409/1995 Ex.P.5 Copy of the order in CPR No.3630/1990 Ex.P.6 Copy of the Judgment in R.A.194/1948-49 Ex.P.7 Sketch Ex.P.8 Extract of enquiry register Ex.P.9 Copy of the decree in O.S.1/1946 Ex.P.10 to Ex.P.14 West End Pharmacy bills Ex.P.15 Copy of the letter dated 30-07-1962 Ex.P.16 Copy of the letter dated 05-01-1963 Ex.P.17 Copy of the letter dated05-12-1962 Ex.P.18 Copy of the letter date 21-01-1961 Ex.P.19 & Ex.P.20 Registration certificate of Establishment Ex.P.21 & Ex.P.22 Certificate of enrolment Ex.P.23 & Ex.P.24 Form No.4 Ex.P.25 & Ex.P.26 Certificate of renewal of license Ex.P.27 & Ex.P.28 Form No.20 Ex.P.29 & Ex.P.30 Form No.21 Ex.P.31 & 66 O.S.No.409/1995 Ex.P.32 Registration certificate Ex.P.33 & Ex.P.34 Form of approval and option Ex.P.35 & Ex.P.36 Letter dated 17-10-1986 Ex.P.37 to Ex.P.94 Form No.3 Ex.P.95 Copy of the petition in HRC No.6621/1980 Ex.P.96 Objections to the petition in HRC 6621/1980 Ex.P.97 Deposition of Ameen Sait Ex.P.98 Copy of the order
List of witnesses examined on behalf of defendant :
D.W.1 Sri.Nauman Sait List of documents exhibited on behalf of defendant :
Ex.D.1 to Ex.D.5 Photos Ex.D.6 Sketch Ex.D.7 Certified copy of the partition deed Ex.D.7(a) Typed copy of Ex.D-7 Ex.D.8 Certified copy of the plaint in O.S.1/1946 Ex.D.9 Certified copy of the deed of declaration Ex.D.9(a) Typed copy 67 O.S.No.409/1995 Ex.D.10 Deed of mortgage Ex.D.10(a) Typed copy Ex.D.11 Deed of declaration Ex.D.12 Original deed Ex.D.13 Indenture lease deed Ex.D.14 Sale deed dated 08-02-1957 Ex.D.15 Gift deed dated 30-05-1977 Ex.D.16 Sale deed dated 30-05-1977 Ex.D.17 to Ex.D.24 Assessment extracts Ex.D.25 & Ex.D.26 Endorsement Ex.D.27 to Ex.D.29 Assessment of register extract Ex.D.30 to Ex.D.37 Tax paid receipts Ex.D.38 to Ex.D.40 Tax paid receipts Ex.D.41 to Ex.D.43 Khatha extracts and Khatha certificates Ex.D.44 & Ex.D.45 Encumbrance certificates Ex.D.46 Certified copy of the order in HRC No.6621/1980 Ex.D.47 Certified copy of the enquiry notice 68 O.S.No.409/1995 Ex.D.48 Certified copy of the reply Ex.D.49 Certified copy of the proceedings Ex.D.50 Certified copy of the list of properties XIV ADDL.CITY CIVIL JUDGE BANGALORE