Bangalore District Court
Sri.K.Saravanan vs Sri.Selvaraj on 18 January, 2016
IN THE COURT OF THE XXV ADDL. CITY CIVIL & SESSIONS
JUDGE
AT BANGALORE CITY - CCH No.23.
Dated this the 18th DAY OF JANUARY, 2016
PRESIDING OFFICER
PRESENT: Sri. Sadananda M. Doddamani.,
B.A.,L.LB.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
O.S.No.6541/2005 c/w O.S.No.6543/2005
PLAINTIFF/S : Sri.K.Saravanan,
in O.S.No.6541/2005 S/o T.Kuppaswamy,
Aged about 39 years,
R/at No.148,
4th cross,
Ramakrishna Mutt Layout,
K.G.Nagar,
Bangalore - 19.
(By Sri.KVS, Advocate)
--Vs.---
DEFENDANT/S : Sri.Selvaraj,
in O.S.No.6541/2005 (Father's name not known)
Major in age,
Residing in portion property
No.148, situated at
4th cross,
Ramakrishna Mutt Layout,
K.G.nagar,
Bangalore - 19.
Since dead by his LRs
2 O.S.No.6541/05 c/w O.S.No.6543/05
1(a) Smt.Gajalakshmi,
W/o Late Selvaraj,
Aged about 50 years,
1(b) Srinivas
S/o Late Delvaraj,
Aged about 32 years,
1(c) Smt.Latha
D/o Late Selvaraj,
Aged about 28 years,
All are Residing in a portion
Of property No.148,
Situated at 4th cross,
Ramakrishna Mutt layout,
K.G.Nagar,
Bang alore - 19.
(By Sri.MNS, Advocate)
PLAINTIFF/S : Sri.K.Saravanan,
in O.S.No.6543/2005 S/o T.Kuppaswamy,
Aged about 39 years,
R/at No.148,
4th cross,
Ramakrishna Mutt Layout,
K.G.Nagar,
Bangalore - 19.
(By Sri.KVS, Advocate)
--Vs.---
DEFENDANT/S : Smt.Gowri,
in O.S.No.6543/2005 W/o Murugesh,
Major in age,
Residing in portion property
3 O.S.No.6541/05 c/w O.S.No.6543/05
No.148, (door No.79) situated at
4th cross,
Ramakrishna Mutt Layout,
K.G.Nagar,
Bangalore - 19.
(By Sri.CVR, Advocate)
Date of institution of suit
in O.S.No.6541/2005 : 29.08.2005
Date of institution of suit
in O.S.No.6543/2005 : 29.08.2005
Nature of suit : Declaration, Injunction &
in O.S.No.6541/2005 possession
Nature of suit : Declaration, Injunction &
in O.S.No.6543/2005 possession
Date of commencement
of recording of evidence : 24.03.2010
in both O.S.No.6541/2005
& O.S.No.6543/2005
Date on which the judgment 18.01.2016
was pronounced :
Duration of the suit: year/s month/s day/s
in O.S.No.6541/2005 10 04 20
Duration of the suit: year/s month/s day/s
in O.S.No.6543/2005 10 04 20
* * * * *
4 O.S.No.6541/05 c/w O.S.No.6543/05
JUDGMENT
The plaintiff has filed O.S.No.6541/2005 seeking the relief of declaration to declare him as the absolute owner of the suit schedule property and to direct the defendant to deliver the possession of the schedule premises and for such other reliefs. So also the plaintiff filed O.S.No.6543/2005 seeking the same kind of relief as sought in the above mentioned suit.
2. The case of the plaintiff in O.S.No.6541/2005 is as under:
That the plaintiff is the absolute owner of the property bearing No.148 situated at Ramakrishna Mutt extension layout, K.G Nagar, Bangalore - 19, the said property bearing No.148, Ramakrishna Mutt extension of which plaintiff is the absolute owner, measuring east to west 20 feet and north to south 36 feet and the said entire property bounded on the east by road, west by property No.147, north by road and south by property No.123. It is further contended that the said property was originally belonging to the BDA Bangalore which formed the layout known as Ramakrishna Mutt extension 5 O.S.No.6541/05 c/w O.S.No.6543/05 layout. The BDA Bangalore has allotted and conveyed the said property in favour of one C.Vishwanath and the plaintiff has purchased the said property from him. It is further contended that the BDA which allotted the said property in favour of said C.Vishwanath and after the expiry of his period, has executed absolute sale deed dated 11/1/1989 in favour of the said C.Vishwanath. It is further contended that the BMP has also registered the khatha of the said property in favour of said C.Vishwanath and the khatha certificate dated 18/7/2004 issued in his favour.
3. It is further contended that the plaintiff has purchased the aforesaid property bearing No.148, Ramakrishna Mutt extension, Bangalore on 25/9/2004 from the said C.Vishwanath under a registered sale deed dated 25/9/2004 executed by him in his favour. It is further contended that the said sale deed was registered in the office of the Sub-Registrar, Basavanagudi, Bangalore. It is further contended that in pursuance of purchase made by the plaintiff under the sale deed dated 25/9/2004 has become the 6 O.S.No.6541/05 c/w O.S.No.6543/05 absolute owner and acquired right, title and interest over the same. It is further contended that after purchase of the said property the plaintiff has applied to the Bengaluru Mahanagara Palike for transfer of khatha of the said property and tax assessment in his name. The BBMP, Bangalore has transferred the khatha of the suit property in his name. It is further contended that the plaintiff is also paying the property tax to the BBMP, Bangalore, and he has availed loan on the security of the said property from the Millennium Credit Co- operative Society Limited, Basavanagudi, Bangalore, and created the mortgage by way of deposit of title deeds in favour of the bank. It is further contended that the original title deeds in respect of the schedule property are deposited with the said bank, so the plaintiff is having acquired valid title over the suit property and exercising all lawful acts over the said property. It is further contended that the aforesaid property bearing No.148 consists of 4 tenements and the plaintiff is residing in the portion of the said property No.148 and other 3 portions are in occupation of different persons. It is further contended that the defendant is in occupation of the 7 O.S.No.6541/05 c/w O.S.No.6543/05 portion of the said property bearing No.148 measuring about 10 x 10 feet. It is further contended that the defendant was in occupation of the schedule premises when the plaintiff purchased the property from Sri.C.Vishwanath and he was paying rent of Rs.75/- per month. It is further contended that after purchase made by the plaintiff the defendants paid rent for the month of October 2004 and thereafter stopped payment of rent. It is further contended that there is no rental agreement between the plaintiff and the defendant. The suit schedule premises is a temporary shed and is in dilapidated condition having asbestos sheet roofing with mud wall and the plaintiff is intending to demolish the schedule premises as well as other portions including the portion in occupation of the plaintiff and he is intending to put up new construction in the entire property and thereafter the same is required for his own use and occupation. It is further contended that the plaintiff by explaining all the above facts got issued legal notice dated 1/3/2005 calling upon the defendants to pay the rent from 1/11/2004 and to vacate and deliver the vacant possession of the suit schedule premises to him. The said notice was duly 8 O.S.No.6541/05 c/w O.S.No.6543/05 served on the defendant and the defendant instead of complying the demand made in the said notice has got issued reply notice dated 30/3/2005. It is further contended that in the said reply notice the defendant has seriously disputed the relationship of landlord and tenant and the defendant has disputed the title of the plaintiff and also his predecessor in title and the defendant has claimed his ownership over the suit schedule premises. It is further contended that in view of the serious dispute as to ownership raised by the defendant and in the absence of any rental agreement between the plaintiff and defendant, the plaintiff has no other option but to file the suit for declaration of his title and for possession.
4. It is further contended that the plaintiff is the absolute owner of the suit schedule premises and the defendant has no right, title or interest over the suit schedule property. The possession of the defendant is unlawful and without any authority, as such the defendant is liable to be dispossessed from the suit schedule premises. It is further contended that in view of the stand taken by the defendant in 9 O.S.No.6541/05 c/w O.S.No.6543/05 the reply notice, the defendant has forfeited and estopped from claiming the right of tenancy. The absolute ownership of the schedule premises is vests with plaintiff and the plaintiff is in continuous lawful possession of the same. It is further contended that the defendant has no manner of right, title or interest over the schedule premises and the plaintiffs possession and ownership in respect of the schedule premises is lawful and uninterrupted and the plaintiff has been exercising uninterrupted right of ownership. It is further contended that since the defendants denied the title of the plaintiff and has asserted title with herself, plaintiff is left with no option but to approach this court by filing the suit for declaration and possession. The possession of the defendant is unauthorized and the defendant is liable to deliver the possession of the suit schedule premises to the plaintiff, etc. On these grounds and among other grounds he has come up with the present suit and accordingly prays for to decree the suit.
10 O.S.No.6541/05 c/w O.S.No.6543/05
5. In pursuance of the summons sent by this court the defendant appeared before the court through his counsel. The records shows that the defendant was died during the pendency of the suit and subsequently his legal representatives were brought on record. The legal representatives of the deceased defendant filed their detailed written statement by denying all the plaint averments.
6. The legal representatives of the defendant in the written statement contended that the property mentioned in the plaint schedule which actually bears house No.79 originally belonged to Smt.Sarojamma who had two daughters by name Smt.Gajalakshmi and Smt.Gowri. It is further contended that the deceased Selvaraj, the defendant in this case was the husband of Gajalakshmi and also son-in-law of Sarojamma. It is further contended that the property bearing No.79 was measuring east to west 10 feet and north to south 15 feet. The house which is existing now was constructed by Sarojamma about more than 35 years ago and she was residing in the said house till her death on 11 O.S.No.6541/05 c/w O.S.No.6543/05 11/4/1993. It is further contended that earlier to her death, i.e., to say about 22 years from now the said Sarojamma divided her property into two portions and gave the northern portion measuring 10 x 10 feet to Gajalakshmi, W/o deceased defendant Selvaraj and southern portion measuring 10 x 5 feet to another daughter Gowri who is the defendant in O.S.No.6543/2005. So it is contended that the northern boundary shown in the plaint schedule of this suit is not a portion of property No.148 in possession of plaintiff, but it is the remaining portion of the property bearing No.79 belonging to and in possession of Gowri, another daughter of Sarojamma who is the defendant in O.S.No.6543/2010. It is further contended that Gajalakshmi, legal representative along with her husband deceased Selvaraj has been enjoying portion of property No.79 measuring 10 x 10 feet for over a period of 22 years in her own right as absolute owner thereof. Only Gajalakshmi should have been made a party to this suit instead of her husband Selvaraj and plaintiff has nothing to do with this property and it does not form a part of property No.148.
12 O.S.No.6541/05 c/w O.S.No.6543/05
7. It is further contended that no property bearing No.148 in this area was allotted to C.Vishwanath, the vendor of plaintiff by BDA at any point of time. It is further contended that the documents produced by plaintiff do not in any way relate to the property of the defendants. It is further contended that the documents produced by the plaintiff are of recent origin and created for the purpose of this case. It is further contended that the alleged vendor of the plaintiff C.Vishwanath also had no rights over the property in possession of this defendant which bears house No.79. Neither Selvaraj nor these defendants were ever tenants under C.Vishwanath and they did not pay any rents to him at any point of time either at the rate of Rs.75/- per month or at Rs.100/- per month as stated by the plaintiff in the plaint and in the legal notice respectively. It is further contended that the entire area wherein the defendants are residing never belonged to BDA at any point of time and the BDA had no right over this area. Actually the entire area which is behind and to the west of Ramakrishna Mutt, Bull Temple Road, originally 13 O.S.No.6541/05 c/w O.S.No.6543/05 belonged to Ramakrishna Mutt and it was a slum area. Later Mutt authorities knowing the poor condition of the occupants allowed the persons who were in occupation of different bits of lands to continue there without disturbing their possession. It is further contended that Sarojamma and her daughters including late Selvaraj, the son-in-law are residing in the said area for over several years exercising their rights in respect of portions which are in their occupation, as absolute owners thereof.
8. It is further contended that the defendants learnt that the alleged vendor of plaintiff C.Vishwanath had previously filed a suit in O.S.No.4376/1980 against one Smt.Ammakannamma, on the file of CCH-12 claiming another portion which was actually in the occupation of one Lakshmi and her children for permanent injunction and other reliefs, although Ammakannamma was not actually in possession. It is further contended that the said suit appears to have been dismissed on or about 23/6/1992. After dismissal of the said suit in the year 1992 nobody interfered with the persons in 14 O.S.No.6541/05 c/w O.S.No.6543/05 occupation of different portions in this area, till plaintiff filed the present suit against the defendants and also against few other persons including Ammakannamma, seeking declaration and possession on the same grounds as averred in the present suit. It is further contended that the vendor C.Vishwanath did not take any further steps to get the order set aside and to establish his rights over the area in the suit filed by him earlier. On enquiry they learnt that the entire records pertaining to the said suit are destroyed and therefore the plaintiff is now making false claims over the property in possession of the defendant and others. It is further contended that if the plaintiff and his vendor C.Vishwanath are claiming title from BDA, they may approach the said authorities for necessary relief or in the alternative they should have been atleast impleaded BDA as party to this suit, since BDA whose presence is absolutely required in this suit is not made a party, as such the suit is liable to be dismissed for non-joinder of necessary party.
15 O.S.No.6541/05 c/w O.S.No.6543/05
9. It is further contended that the vendor of the plaintiff C.Vishwanath himself did not claim any rights over the deceased defendant at any point of time in any capacity. The legal representatives of the deceased defendant are in possession and enjoyment of the property in question from the year 1978 exercising their rights of ownership continuously without any break and also hostilely to the knowledge of plaintiff and his predecessor in title for over a period of 22 years. Therefore alternatively it is pleaded that if the plaintiff and his vendor had any title or right over the plaint schedule property, the same is extinguished and thereby the defendants have perfected their title to the property in question by adverse possession by virtue of their possession and enjoyment and by ouster for over a statutory period of 12 years earlier to the filing of the present suit.
10. It is further contended that the very documents produced by the legal representatives of the deceased defendant shows that they are in possession of the property bearing house No.79 from the year 1978. If the vendor of the 16 O.S.No.6541/05 c/w O.S.No.6543/05 plaintiff C.Vishwanath has purchased any portion from BDA under registered sale deed dated 11/1/1989, the same must be in respect of some other property and in some other area, but not in respect of the property in possession and occupation of the defendant. It is further contended that the present suit filed by the plaintiff is not at all maintainable and the suit is not properly valued and also the plaintiff has not paid the court fee in accordance with law, etc. On these grounds and among other grounds the legal representatives of the deceased defendant sought for the dismissal of the suit.
11. The case of the plaintiff in O.S.No.6543/2005 is as under:
That the plaintiff is the absolute owner of the property bearing No.148 situated at Ramakrishna Mutt extension layout, K.G Nagar, Bangalore - 19, the said property bearing No.148, Ramakrishna Mutt extension of which plaintiff is the absolute owner, measuring east to west 20 feet and north to south 36 feet and the said entire property bounded on the east by road, west by property No.147, north by road and south by 17 O.S.No.6541/05 c/w O.S.No.6543/05 property No.123. It is further contended that the said property was originally belonging to the BDA Bangalore which formed the layout known as Ramakrishna Mutt extension layout. The BDA Bangalore has allotted and conveyed the said property in favour of one C.Vishwanath and the plaintiff has purchased the said property from him. It is further contended that the BDA which allotted the said property in favour of said C.Vishwanath and after the expiry of his period, has executed absolute sale deed dated 11/1/1989 in favour of the said C.Vishwanath. It is further contended that the BMP has also registered the khatha of the said property in favour of said C.Vishwanath and the khatha certificate dated 18/7/2004 issued in his favour.
12. It is further contended that the plaintiff has purchased the aforesaid property bearing No.148, Ramakrishna Mutt extension, Bangalore on 25/9/2004 from the said C.Vishwanath under a registered sale deed dated 25/9/2004 executed by him in his favour. It is further contended that the said sale deed was registered in the office 18 O.S.No.6541/05 c/w O.S.No.6543/05 of the Sub-Registrar, Basavanagudi, Bangalore. It is further contended that in pursuance of purchase made by the plaintiff under the sale deed dated 25/9/2004 has become the absolute owner and acquired right, title and interest over the same. It is further contended that after purchase of the said property the plaintiff has applied to the Bengaluru Mahanagara Palike for transfer of khatha of the said property and tax assessment in his name. The BBMP, Bangalore has transferred the khatha of the suit property in his name. It is further contended that the plaintiff is also paying the property tax to the BBMP, Bangalore, and he has availed loan on the security of the said property from the Millennium Credit Co- operative Society Limited, Basavanagudi, Bangalore, and created the mortgage by way of deposit of title deeds in favour of the bank. It is further contended that the original title deeds in respect of the schedule property are deposited with the said bank, so the plaintiff is having acquired valid title over the suit property and exercising all lawful acts over the said property. It is further contended that the aforesaid property bearing No.148 consists of 4 tenements and the 19 O.S.No.6541/05 c/w O.S.No.6543/05 plaintiff is residing in the portion of the said property No.148 and other 3 portions are in occupation of different persons. It is further contended that the defendant is in occupation of the portion of the said property bearing No.148 measuring about 10 x 10 feet. It is further contended that the defendant was in occupation of the schedule premises when the plaintiff purchased the property from Sri.C.Vishwanath and he was paying rent of Rs.75/- per month. It is further contended that after purchase made by the plaintiff the defendants paid rent for the month of October 2004 and thereafter stopped payment of rent. It is further contended that there is no rental agreement between the plaintiff and the defendant. The suit schedule premises is a temporary shed and is in dilapidated condition having asbestos sheet roofing with mud wall and the plaintiff is intending to demolish the schedule premises as well as other portions including the portion in occupation of the plaintiff and he is intending to put up new construction in the entire property and thereafter the same is required for his own use and occupation. It is further contended that the plaintiff by explaining all the above facts got issued legal notice dated 20 O.S.No.6541/05 c/w O.S.No.6543/05 1/3/2005 calling upon the defendants to pay the rent from 1/11/2004 and to vacate and deliver the vacant possession of the suit schedule premises to him. The said notice was duly served on the defendant and the defendant instead of complying the demand made in the said notice has got issued reply notice dated 30/3/2005. It is further contended that in the said reply notice the defendant has seriously disputed the relationship of landlord and tenant and the defendant has disputed the title of the plaintiff and also his predecessor in title and the defendant has claimed his ownership over the suit schedule premises. It is further contended that in view of the serious dispute as to ownership raised by the defendant and in the absence of any rental agreement between the plaintiff and defendant, the plaintiff has no other option but to file the suit for declaration of his title and for possession.
13. It is further contended that the plaintiff is the absolute owner of the suit schedule premises and the defendant has no right, title or interest over the suit schedule property. The possession of the defendant is unlawful and 21 O.S.No.6541/05 c/w O.S.No.6543/05 without any authority, as such the defendant is liable to be dispossessed from the suit schedule premises. It is further contended that in view of the stand taken by the defendant in the reply notice, the defendant has forfeited and estopped from claiming the right of tenancy. The absolute ownership of the schedule premises is vests with plaintiff and the plaintiff is in continuous lawful possession of the same. It is further contended that the defendant has no manner of right, title or interest over the schedule premises and the plaintiffs possession and ownership in respect of the schedule premises is lawful and uninterrupted and the plaintiff has been exercising uninterrupted right of ownership. It is further contended that since the defendants denied the title of the plaintiff and has asserted title with herself, plaintiff is left with no option but to approach this court by filing the suit for declaration and possession. The possession of the defendant is unauthorized and the defendant is liable to deliver the possession of the suit schedule premises to the plaintiff, etc. On these grounds and among other grounds he has come up 22 O.S.No.6541/05 c/w O.S.No.6543/05 with the present suit and accordingly prays for to decree the suit.
14. In pursuance of the summons sent by this court the defendant appeared before the court through his counsel. The records shows that the defendant was died during the pendency of the suit and subsequently his legal representatives were brought on record. The legal representatives of the deceased defendant filed their detailed written statement by denying all the plaint averments.
15. The legal representatives of the defendant in the written statement contended that the property mentioned in the plaint schedule which actually bears house No.79 originally belonged to Smt.Sarojamma who had two daughters by name Smt.Gajalakshmi and Smt.Gowri. It is further contended that the deceased Selvaraj, the defendant in this case was the husband of Gajalakshmi and also son-in-law of Sarojamma. It is further contended that the property bearing No.79 was measuring east to west 10 feet and north to 23 O.S.No.6541/05 c/w O.S.No.6543/05 south 15 feet. The house which is existing now was constructed by Sarojamma about more than 35 years ago and she was residing in the said house till her death on 11/4/1993. It is further contended that earlier to her death, i.e., to say about 22 years from now the said Sarojamma divided her property into two portions and gave the northern portion measuring 10 x 10 feet to Gajalakshmi, W/o deceased defendant Selvaraj and southern portion measuring 10 x 5 feet to another daughter Gowri who is the defendant in O.S.No.6543/2005. So it is contended that the northern boundary shown in the plaint schedule of this suit is not a portion of property No.148 in possession of plaintiff, but it is the remaining portion of the property bearing No.79 belonging to and in possession of Gowri, another daughter of Sarojamma who is the defendant in O.S.No.6543/2010. It is further contended that Gajalakshmi, legal representative along with her husband deceased Selvaraj has been enjoying portion of property No.79 measuring 10 x 10 feet for over a period of 22 years in her own right as absolute owner thereof. Only Gajalakshmi should have been made a party to this suit 24 O.S.No.6541/05 c/w O.S.No.6543/05 instead of her husband Selvaraj and plaintiff has nothing to do with this property and it does not form a part of property No.148.
16. It is further contended that no property bearing No.148 in this area was allotted to C.Vishwanath, the vendor of plaintiff by BDA at any point of time. It is further contended that the documents produced by plaintiff do not in any way relate to the property of the defendants. It is further contended that the documents produced by the plaintiff are of recent origin and created for the purpose of this case. It is further contended that the alleged vendor of the plaintiff C.Vishwanath also had no rights over the property in possession of this defendant which bears house No.79. Neither Selvaraj nor these defendants were ever tenants under C.Vishwanath and they did not pay any rents to him at any point of time either at the rate of Rs.75/- per month or at Rs.100/- per month as stated by the plaintiff in the plaint and in the legal notice respectively. It is further contended that the entire area wherein the defendants are residing never belonged 25 O.S.No.6541/05 c/w O.S.No.6543/05 to BDA at any point of time and the BDA had no right over this area. Actually the entire area which is behind and to the west of Ramakrishna Mutt, Bull Temple Road, originally belonged to Ramakrishna Mutt and it was a slum area. Later Mutt authorities knowing the poor condition of the occupants allowed the persons who were in occupation of different bits of lands to continue there without disturbing their possession. It is further contended that Sarojamma and her daughters including late Selvaraj, the son-in-law are residing in the said area for over several years exercising their rights in respect of portions which are in their occupation, as absolute owners thereof.
17. It is further contended that the defendants learnt that the alleged vendor of plaintiff C.Vishwanath had previously filed a suit in O.S.No.4376/1980 against one Smt.Ammakannamma, on the file of CCH-12 claiming another portion which was actually in the occupation of one Lakshmi and her children for permanent injunction and other reliefs, although Ammakannamma was not actually in possession. It 26 O.S.No.6541/05 c/w O.S.No.6543/05 is further contended that the said suit appears to have been dismissed on or about 23/6/1992. After dismissal of the said suit in the year 1992 nobody interfered with the persons in occupation of different portions in this area, till plaintiff filed the present suit against the defendants and also against few other persons including Ammakannamma, seeking declaration and possession on the same grounds as averred in the present suit. It is further contended that the vendor C.Vishwanath did not take any further steps to get the order set aside and to establish his rights over the area in the suit filed by him earlier. On enquiry they learnt that the entire records pertaining to the said suit are destroyed and therefore the plaintiff is now making false claims over the property in possession of the defendant and others. It is further contended that if the plaintiff and his vendor C.Vishwanath are claiming title from BDA, they may approach the said authorities for necessary relief or in the alternative they should have been atleast impleaded BDA as party to this suit, since BDA whose presence is absolutely required in this suit is 27 O.S.No.6541/05 c/w O.S.No.6543/05 not made a party, as such the suit is liable to be dismissed for non-joinder of necessary party.
18. It is further contended that the vendor of the plaintiff C.Vishwanath himself did not claim any rights over the deceased defendant at any point of time in any capacity. The legal representatives of the deceased defendant are in possession and enjoyment of the property in question from the year 1978 exercising their rights of ownership continuously without any break and also hostilely to the knowledge of plaintiff and his predecessor in title for over a period of 22 years. Therefore alternatively it is pleaded that if the plaintiff and his vendor had any title or right over the plaint schedule property, the same is extinguished and thereby the defendants have perfected their title to the property in question by adverse possession by virtue of their possession and enjoyment and by ouster for over a statutory period of 12 years earlier to the filing of the present suit.
28 O.S.No.6541/05 c/w O.S.No.6543/05
19. It is further contended that the very documents produced by the legal representatives of the deceased defendant shows that they are in possession of the property bearing house No.79 from the year 1978. If the vendor of the plaintiff C.Vishwanath has purchased any portion from BDA under registered sale deed dated 11/1/1989, the same must be in respect of some other property and in some other area, but not in respect of the property in possession and occupation of the defendant. It is further contended that the present suit filed by the plaintiff is not at all maintainable and the suit is not properly valued and also the plaintiff has not paid the court fee in accordance with law, etc. On these grounds and among other grounds the legal representatives of the deceased defendant sought for the dismissal of the suit.
20. Heard the arguments.
21. The learned counsel for the plaintiff in support of his case has relied upon the following decisions:
(1) ILR 2000 Kar page 1223 29 O.S.No.6541/05 c/w O.S.No.6543/05 (2) AIR 2009 SC page 103 (3) AIR 1992 Kar page 270 (4) ILR 2009 Kar page 1099 (5) ILR 2008 Kar page 2747
22. The learned counsel for the defendant in support of his arguments has relied upon the following decisions:
(1) 2014 SAR (Civil) page 33 (2) 2009 AIAR (Civil) page 161 (3) ILR 2003 Kar page 2253
23. On the basis of the above rival pleadings of the parties in O.S.No.6541/2005, my learned Predecessor-in-office has framed the following issues and additional issues which are as under:
(1) Whether the plaintiff proves that he is the absolute owner of the suit schedule property ?
(2) Whether the plaintiff proves that the defendant is a tenant under him in respect of the suit schedule property on a monthly rental basis ?
(3) Whether the plaintiff proves the valid termination of the tenancy of the 30 O.S.No.6541/05 c/w O.S.No.6543/05 defendant by issuing legal notice dated 1/3/2005 ?
(4) Whether the subject matter of the suit is not properly valued and the court fee paid is insufficient ?
(5) Whether the plaintiff is entitled for the decree of possession as prayed for ? (6) What order or decree ?
Additional issues:
(1) Whether the suit is bad for non-
joinder of necessary parties ?
(2) Whether the defendant has perfected
her title by way of adverse
possession?
24. On the basis of the above rival pleadings of the parties in O.S.No.6543/2005, my learned Predecessor-in-office has framed the following issues and additional issues which are as under:
(1) Whether the plaintiff proves that he is the absolute owner of suit schedule property ?
(2) Whether the plaintiff proves that the defendant is tenant under him in 31 O.S.No.6541/05 c/w O.S.No.6543/05 respect of the suit schedule property on a monthly rental basis ?
(3) Whether the plaintiff proves the valid termination of tenancy of the defendant by issuing a legal notice dated 1/3/2005 ?
(4) Whether the subject matter of the suit is not properly valued and the court fee paid is insufficient ?
(5) Whether the plaintiff is entitled for decree of possession as prayed for ? (6) What order or decree ?
Additional issues:
(1) Whether the suit is bad for non-
joinder of necessary party ?
(2) Whether the defendant has perfected her title by way of adverse possession ?
25. The plaintiff in order to establish his case he himself got examined as PW1 in both the cases and got marked as many as 23 documents from Ex.P1 to P23 and also got examined 2 witnesses as PW2 and 3 and closed his side evidence.32 O.S.No.6541/05 c/w O.S.No.6543/05
26. The defendant in both cases in order to establish their case, the defendant in O.S.No.6541/2005 herself got examined as DW1 and got marked as many as 19 documents from Ex.D1 to 19 and closed their side evidence.
27. My findings to the above issues in O.S.No.6541/2005 are as under:
Issue No.1 : In the Negative
Issue No.2 : In the Negative
Issue No.3 : In the Negative
Issue No.4 : In the Negative
Issue No.5 : In the Negative
Addl Issue No.1 : In the Negative
Addl Issue No.2 : In the Negative
Issue No.6 : As per the final order
28. My findings to the above issues in
O.S.No.6543/2005 are as under:
Issue No.1 : In the Negative
Issue No.2 : In the Negative
Issue No.3 : In the Negative
Issue No.4 : In the Negative
33 O.S.No.6541/05 c/w O.S.No.6543/05
Issue No.5 : In the Negative
Addl Issue No.1 : In the Negative
Addl Issue No.2 : In the Negative
Issue No.6 : As per the final order
REASONS
29. Issue No.1 in O.S.No.6541/2005 and Issue No.1 in O.S.No.6543/2005 : Both these issues are interconnected.
Therefore they have been taken together for common consideration and discussions in order to avoid repetition of facts and also for the sake of convenience.
30. The plaintiff in order to establish his case, in both cases, himself got examined as PW1 and filed his detailed affidavit by way of examination-in-chief, wherein he reiterated all the averments made in the plaints and further on oath stated before the court that he is the absolute owner of the property bearing No.148 situated at Ramakrishna Mutt extension layout, K.G.Nagar, Bangalore - 19. He further contended that the said property was originally belonging to the BDA, Bangalore situated in the layout formed by the BDA 34 O.S.No.6541/05 c/w O.S.No.6543/05 known and called as Ramakrishna Mutt extension layout. He further contended that the BDA has allotted and conveyed the said property in favour of one C.Vishwanath. He further stated that he purchased the suit schedule property from the said C.Vishwanath and the BDA which has allotted the said property in favour of C.Vishwanath after expiry of the lease period executed absolute sale deed dated 11/1/1989 in his favour. He further stated that subsequently the BBMP has registered khatha of the said property in the name of C.Vishwanath. He further stated that he purchased the suit schedule property from C.Vishwanath on 25/9/2004 under a registered sale deed and in pursuance of the purchase he became the absolute owner of the suit schedule property and acquired right, title and interest over the same. He further stated that after purchase of the suit property he applied to the BBMP, Bangalore for transfer of khatha of the said property and assessment of property tax in his name. The BBMP, Bangalore has transferred the khatha into his name. He further stated that he himself paying the property tax to the BBMP in respect of the suit property. He further stated 35 O.S.No.6541/05 c/w O.S.No.6543/05 that he had availed loan on the security of the suit property from the Millennium Credit Co-operative Society Limited, Basavanagudi, Bangalore, and created mortgage by way of deposit of title deeds in favour of the said bank.
31. He further stated that the suit property bearing No.148 consists of 4 tenements and he is residing in the portion of the suit property and other 3 portions are in occupation of different persons, out of which one portion is in occupation of the defendant herein. He further stated that the portion in occupation of the defendant measures 5 x 10 feet, i.e., suit schedule premises and the defendant is in occupation of suit schedule premises when he purchased the said property from C.Vishwanath and she was paying rent at the rate of Rs.75/- per month. He further stated that after purchase of the property the defendant has paid rent upto October 2004 at the said rate and thereafter she stopped the payment of rent.
36 O.S.No.6541/05 c/w O.S.No.6543/05
32. He further stated that the suit schedule premises is a temporary shed and is in dilapidated condition having asbestos sheet roofing with mud walls and he intending to demolish the suit schedule premises as well as other portion in occupation of other occupants against them he also filed similar suits in O.S.No.6543/2005 and O.S.No.6542/2005. He further stated that he intending to put up a new construction in the entire property and thereafter the same is required for his own use and occupation. He further stated that by explaining all these aspects he got issued legal notice dated 1/3/2005 to the defendants in both the cases to pay the rent from 1/11/2004 and further to vacate and deliver the vacant possession of the suit schedule premises. He further stated that the said notice was duly served upon the defendants in both the cases, but instead of complying the demands made in the said notice, they got issued reply notice dated 30/3/2005. In the said reply notice, the defendants have seriously disputed the relationship of land lord and tenant. He further stated that the defendants have also seriously disputed his title over the suit schedule premises 37 O.S.No.6541/05 c/w O.S.No.6543/05 and also the predecessor in title. He further stated that the defendants in the reply notice claiming that they are the absolute owners of the respective schedule premises.
33. He further stated that in view of the serious dispute as to ownership raised by the defendants, he has left with no option has filed the present suit for declaration of his title and possession of the suit schedule premises. He further stated that he is the absolute owner of the suit schedule premises, the defendant has no right, title and interest over the suit schedule property. The possession of the defendants is unlawful and without any authority, as such, the defendants are liable to be dispossessed from the suit schedule premises as they have right, title or interest over the suit schedule premises. He further stated that in view of the stand taken by the defendants in their reply notice, the defendants have forfeited and estopped from claiming any tenancy right. He further stated that he is the absolute owner of the suit schedule premises and he is in continuous lawful possession of the same. He further stated that the defendants have 38 O.S.No.6541/05 c/w O.S.No.6543/05 absolutely no manner of right, title or interest over the suit schedule premises and his possession and ownership of the suit schedule premises is lawful and uninterrupted. He further stated that he has been exercising uninterrupted right of ownership, since the defendants have denied his title and asserted title with them. So he has filed suit for declaration and possession.
34. The plaintiff in his further examination-in-chief stated that apart from these two suits he has filed one more suit against Ammakannamma in O.S.No.6542/2005 and the defendants in the present suits and the defendant in O.S.No.6542/2005 have taken similar contention and defence. He further stated that in all the three cases evidence was recorded. He further stated that in O.S.No.6542/2005 filed by him against Ammakannamma after his evidence in chief, the defendant counsel has partly cross-examined him and after that the defendant has come forward for amicable settlement and agreed to hand over vacant possession of portion of property No.148 which was the subject matter of the said suit 39 O.S.No.6541/05 c/w O.S.No.6543/05 in his favour. He further stated that accordingly on 18/9/2010 the defendant in the said suit had vacated and delivered the vacant possession of the suit schedule premises in his favour. The said fact was reported to the court by filing a joint memo and also report in the delivery of possession in his favour. He further stated that the defendants in the present two suits with the sole intention to harass him and to drag on the proceedings have taken false contention. As such the defendants are liable to be evicted from the suit schedule property.
35. He further stated that subsequent to filing of the present suits the defendant herein and Gajalakshmi, LR No.1 of deceased defendant in O.S.No.6541/2005, both are daughters of late M.Kannaiah Shetty have made representation to the BDA, Bangalore, stating that they have no property of their own and they have sought for allotment of property in their favour. On the representation made by them, the BDA had allotted property bearing No.1821/C, Sector II, situated at Hosur - Sarjapur layout, Bangalore and conveyed 40 O.S.No.6541/05 c/w O.S.No.6543/05 and executed registered sale deed in their favour. He further stated that to substantiate the said aspect he has produced the documents before the court. He further stated that the defendant inspite of allotment of alternative site and though they have promised to vacate the premises they are in occupation, at the time of allotment they failed to vacate from the suit schedule premises. He further stated that the defendant in both the cases with sole intention to harass him and with malafide intention to make wrongful gain have failed to vacate the suit schedule premises. In support of his case he got marked 23 documents, Ex.P1 is the certified copy of the sale deed dated 11/1/1989, Ex.P2 is the certified copy of another sale deed dated 25/9/2004. Ex.P3 and P4 are the certified copy of the khatha extract and certificate respectively. Ex.P5 to 7 are the Kandayam paid receipt, encumbrance certificate and nil encumbrance certificate respectively. Ex.P8 is the copy of the legal notice dated 1/3/2005. Ex.P9 is the postal acknowledgment for having received the legal notice by the defendants. Ex.P10 is the reply notice dated 30/31-3- 2005. Ex.P11 to 14 are the certified copies of plaint, written 41 O.S.No.6541/05 c/w O.S.No.6543/05 statement, joint memo and order sheet in O.S.No.6542/2005. Ex.P15 to P18 are the allotment letter, possession certificate, sale deed and endorsement by BDA respectively, which are obtained under RTI Act. Ex.P19 is the original special power of attorney executed by him in favour of his brother-in-law Narayana. Ex.P20 is the absolute sale deed executed by BDA in favour of C.Vishwanath. Ex.P21 is the registered sale deed executed by C.Vishwanath in his favour. Ex.P22 is the tax paid receipt. Ex.P23 is the original encumbrance certificate. So in view of his above oral and documentary evidence, he prays for to decree the suit.
36. The plaintiff in support of his case got examined one witness as PW2. On going through his evidence it shows that wherein he has stated that he is also the resident of Ramakrishna mutt Extension Layout, K.G.Nagar, Bangalore, since 22 years and the property of the plaintiff is No.148 and the same is also situated in Ramakrishna Mutt Layout, K.G.Nagar, Bangalore. He further stated that the plaintiff has purchased the suit property No.148 from one C.Vishwanath 42 O.S.No.6541/05 c/w O.S.No.6543/05 and the defendants of both cases are in possession of portion of property No.148. So looking into the evidence of this P.W.2 it shows that he has supported the case of plaintiff.
37. The plaintiff in support of his case also got examined another witness as PW3 who is none other than the Assistant Engineer, BDA. Upon perusal of the evidence of PW3 wherein he has stated that property No.148 is BDA property and the same is situated in Ramakrishna Mutt slum, but does not belongs to Ramakrishna Mutt. He further stated that he visited the suit property and at that time both plaintiff and defendants were present. He further stated that both parties to the proceedings have submitted an application to BDA for allotment of alternative site and accordingly BDA gave alternative site to both the parties at HSR layout.
38. The defendant in both the cases in order to establish their case, the defendant in O.S.No.6541/2005 herself got examined as DW1 and filed her affidavit by way of examination-in-chief, wherein she reiterated all the averments 43 O.S.No.6541/05 c/w O.S.No.6543/05 made in the written statement. DW1 in her evidence stated that the defendant in O.S.No.6541/2005 which is clubbed along with O.S.No.6543/2005 is none other than her own sister and both the matters are clubbed together, so she is deposing on behalf of herself and on behalf of defendant in O.S.No.6543/2005. She further stated that the plaintiff alleges that the property No.148, Ramakrishna Mutt extension (slum) layout, originally belonging to BDA, Bangalore, was allotted and conveyed to one C.Vishwanath under a registered sale deed dated 11/1/1989 and the plaintiff purchased the said property from C.Vishwanath under registered sale deed dated 25/9/2004. She further stated that according to the plaint allegations, herself and the defendant in O.S.No.6543/2005 were the tenants in respect of different portions of property No.148, under vendor of plaintiff C.Vishwanath and plaintiff claims that they continued as tenants even after sale under the plaintiff. She further stated that the plaintiff caused notice by saying that "he is the landlord and we are the tenants" and also claims arrears of rent and for that they have given reply stating that they are 44 O.S.No.6541/05 c/w O.S.No.6543/05 not liable to pay any rents as there is no relationship of landlord and tenant between them. She further stated that the plaintiff has not produced any documents to prove the relationship of landlord and tenant between them, as such later the plaintiff gave up the plea of tenancy set up by him.
39. She further stated that they are in possession and enjoyment of their own property bearing No.79, situated behind Ramakrishna Mutt and it belongs to their mother Sarojamma and the said property measures east to west 10 feet and north to south 15 feet, the house which is existing and where they are residing now was constructed by their late mother Sarojamma, about more than 40 years ago. She further stated that she was residing in that house till her death on 11/4/1993 and earlier to her death their mother Sarojamma divided his property No.79 into two halves and gave northern portion measuring 10 x 10 feet to her and southern half portion measuring 10 x 5 feet to her sister Gowri, who is the defendant in O.S.No.6543/2005. She further stated that ever since they are residing therein as 45 O.S.No.6541/05 c/w O.S.No.6543/05 owners thereof since about 30 years and the property does not bear property No.148 as claimed by the plaintiff and they do not know where the property No.148 is situated. She further stated that their property No.79 does not form a part of property No.148 as claimed by the plaintiff in both the suits. She further stated that the document produced by the plaintiff do not relate to their property bearing No.79, but they refer to some other property No.148, which is situated some where else and not adjoining to their house No.79. She further stated that they have disputed the plaintiff's claim of ownership of their property not only in their reply notice, but also in their written statement which goes to show that the plaintiff is not residing in any portion of property No.148, but was and is residing even now in the property No.78, belonging to his mother-in-law, which is altogether different property from property No.148.
40. She further stated that the plaintiff in the plaint stated that he is in possession and owner in respect of suit schedule premises and his ownership in respect of suit 46 O.S.No.6541/05 c/w O.S.No.6543/05 schedule premises is lawful and uninterrupted and he has been exercising uninterrupted right and ownership. If that is the contention of the plaintiff, there was no necessity for him to file these suits for declaration and for possession. She further stated that in order to substantiate their case, they have produced number of documents to show that their mother was residing in property No.79 even before 17/4/1978. She further stated that the house No.79 has been in existence since more than 35 years and it is in their possession. So she stated that the very document produced by them clearly shows that they themselves and their parents Kannaiah Shetty and Sarojamma have been residing and in possession and enjoyment of house bearing No.79 situated at Ramakrishna Mutt (slum) layout, Bangalore for past over 30 decades.
41. She further stated that even the document produced by her sister in another case, i.e., in O.S.No. 6543/2005 also goes to show that they have been residing in house No.79 since over 3 decades to the knowledge of all. She further stated that the very document produced by the 47 O.S.No.6541/05 c/w O.S.No.6543/05 plaintiff shows that he is residing in house No.78 belonging to his mother-in-law which is immediately adjoining to their house No.79 on the southern side and also the plaintiff has admitted the said aspect. She further stated that they are in possession of property No.79 from the year 1978 exercising rights and ownership over property No.79 continuously without any break for over a period of 35 years. She further stated that in the month of July 2012, when she herself and her sister were not in station, the plaintiff has encroached upon the portion of their property No.79 behind the toilet, measuring area of 3 feet x 5 ½ feet and prevented them from entering to that place by constructing walls, immediately they filed application in this behalf seeking the relief but till now the plaintiff has not vacated and handed over that piece of land to them.
42. She further stated that the plaintiff has not produced any document to show that their property No.79 is a part of alleged property No.148 and they are his tenants and in arrears of rent at any point of time. In support of her case, 48 O.S.No.6541/05 c/w O.S.No.6543/05 she got marked as many as 19 documents. Ex.D1 photos, Ex.D2 notice dated 31/8/2012, Ex.D3 office copy of reply notice, Ex.D4 pension receipt, Ex.D5 death certificate, Ex.D6 death certificate of husband of DW1, Ex.D7 marriage invitation card of the son of defendant. Ex.D8 receipt, Ex.D9 and 10 two electricity bills, Ex.D11 inland letter, Ex.D12 vehicle insurance of brother-in-law of DW1, Ex.D13 and 14 two bank passbooks, Ex.D15 cumulative record, Ex.D16 two wheeler insurance policy, Ex.D17 marriage invitation card, Ex.D18 and 19 photos and negatives. So in view of her above oral and documentary evidence she prays for to dismiss the suits filed by the plaintiff against her and her sister.
43. The learned counsel for the plaintiff filed his written arguments wherein it is contended that the plaintiff has filed the present suits against the defendants for declaration and possession on the ground that he is the absolute owner of property bearing No.148 situated at Ramakrishna Mutt layout (slum) K.G.Nagar, Bangalore - 19 and the said property measuring east to west 20 feet and north to south 36 feet. It 49 O.S.No.6541/05 c/w O.S.No.6543/05 is further contended that the property No.148 originally belongs to BDA which formed the layout known and called as Ramakrishna Mutt layout. It is further contended that the BDA allotted the said property in favour of C.Vishwanath and after completion of lease period the BDA executed absolute sale deed dated 11/1/1989 in favour of the plaintiff. It is further stated that the plaintiff purchased the said property from C.Vishwanath under sale deed dated 25/9/2004 and pursuant to purchase made under the said sale deed the plaintiff became the absolute owner of suit property. In order to substantiate the case of plaintiff, the plaintiff produced the certified copy of sale deed at Ex.P1 and the original copy of the same at Ex.P20 executed by BDA in favour of C.Vishwanath and certified copy of the sale deed executed by C.Vishwanath in favour of plaintiff at Ex.P2 and original copy of the same at Ex.P21. It is further stated that now the said property No.148 is coming within the limits of BBMP and BBMP has registered khatha in his name and all the revenue documents stands in the name of plaintiff from the date of purchase, as such it is contended that plaintiff is in lawful possession by exercising 50 O.S.No.6541/05 c/w O.S.No.6543/05 lawful acts over the same. It is further contended that the property No.148 purchased by the plaintiff consists of 4 tenements (portions) and the plaintiff is in occupation of a portion of the said property and other 3 portions are in occupation of different persons, i.e., the defendants in O.S.No.6541/2005 measuring 10 x 10 feet and another portion in occupation of defendant in O.S.No.6543/2005, which measures 5 feet x 10 feet. It is further stated that apart from 3 portions another portion was in occupation of one Ammakannamma against whom the plaintiff filed similar kind of suit in O.S.No.6542/2005 and during the pendency of the said suit Ammakannamma vacated and delivered the vacant possession of the said portion to the plaintiff.
44. It is further contended that in the written arguments that at the time of purchase of property No.148, the defendants are in occupation of their respective portions and the plaintiff's vendor informed the plaintiff that they are the tenants under him. After purchase of the said property, the plaintiff informed the defendants that he is the owner for 51 O.S.No.6541/05 c/w O.S.No.6543/05 the said property and he purchased the same from one C.Vishwanath and requested to pay the rent to him and thereafter defendant paid one month rent and then stopped and failed to vacate from the portion of the premises in their occupation for the plaintiffs own use and occupation. So the plaintiff issued notice dated 1/3/2005 as per Ex.P8 calling upon the defendants to vacate and handover the suit schedule premises and to clear the arrears of rent, but the defendants instead of complying the demand made in the said notice have got issued a reply notice dated 30/3/2005 as per Ex.P10, by contending that they are the owners in respect of the portion in their occupation and contended that there is no jural relationship of landlord and tenant in between themselves and the plaintiff. It is further contended that even the defendants in their respective written statements denied the title and ownership of the plaintiff over the suit schedule property and claiming their right of ownership in respect of the portions which are in their possession.
52 O.S.No.6541/05 c/w O.S.No.6543/05
45. It is the further contention of the plaintiff that he is the absolute owner of property No.148 and the defendants are in unauthorized occupation of the said portion of the property and they have no right, title or interest over the same. It is further contended that in plaint at para 2 the plaintiff has clearly stated the measurement of the entire property No.148 and its location and boundaries which he acquired and the defendants in their written statement have taken half hearted dual stand. What it is contended that firstly they contended that they are the owners of premises No.79, but in para No.3 of the written statement they have clearly stated that the plaint schedule property bearing house No.79. So it is contended that, that aspect itself shows that they admits the location of the property and also portion in their occupation bears house/door No.79 which forms part of property No.148. It is further contended that the defendants contended that they acquired the property No.79 about 45 years ago in their reply notice as per Ex.P10 and in the written statement contended that they are in occupation of the same from the last 22 to 23 years and further contended that Mutt 53 O.S.No.6541/05 c/w O.S.No.6543/05 authorities have given the property in their occupation to them and further contended that they are the owners. The other defence taken by the defendants is that they have perfected their title by way of adverse possession. So it is contended that the conflicting stand taken by the defendant itself establishes that they have not disclosed real facts and they have taken false contention which is not sustainable.
46. It is further contended that the plaintiff in order to establish his case, he has given evidence as PW1 and also examined two witnesses as PW2 and 3. It is further contended that to prove the ownership over the suit schedule property the plaintiff produced certified copy of the sale deed dated 25/9/2004 and original of the same at Ex.P21. So also the plaintiff produced his vendors sale deed certified copy dated 11/1/1989 at Ex.P2 and original of the same at Ex.P20. So it is contended that the said Ex.P1 and 20 clearly shows that Ward No.49 and Municipal No.148 originally allotted by BDA in favour of C.Vishwanath and after lease period the BDA executed sale deed in the year 1989 and the said 54 O.S.No.6541/05 c/w O.S.No.6543/05 C.Vishwanath in turn sold the same to the plaintiff in 2004. It is further contended that now the said property is coming within the BBMP limits and the said BBMP has registered the khatha of the said property in the name of the plaintiff, to substantiate the said aspect the plaintiff has produced the khatha certificate and khatha extract at Ex.P3 and 4 and tax receipts at Ex.P5. It is further contended that the documents produced by the plaintiff clearly shows that he is the absolute owner of the suit schedule property and the said documents are not seriously cross-examined by the defendants. It is further contended that the defendants have taken the contention that they are the owners of property No.79, but for the existence of the alleged property No.79 they have not produced any title deeds and not even produced khatha certificate or khatha extract. It is further contended that even the defendants have not produced any documents of title to show that the alleged property belongs to Ramakrishna Mutt. So it is contended that the above aspect clearly goes to show that the defendants are in occupation of portion of property No.148 (which bears door No.79) for the said portion. 55 O.S.No.6541/05 c/w O.S.No.6543/05
47. It is further contended that the contention of the defendants that they are the owners of property No.79 and they are not in occupation of the portion of the property No.148 cannot be believed as because Ex.P8 legal notice duly served upon them in the address mentioned in the suit schedule and even the acknowledgment of the same is marked at Ex.P9. So also the summons sent by RPAD to the address of the defendants as No.148 is also duly served. So he contended that the very stand taken by the defendants in their reply notice and in the written statement establishes that their contention is false. It is further contended that the plaintiff apart from producing several material documents relating to the suit property has also brought evidence of independent witness PW2 and 3 and their evidence clearly shows that the plaintiff is the absolute owner of the suit property and the defendants are residing in a portion of property No.148. It is further contended that the very evidence given by DW1 in the cross-examination shows that wherein she admitted that to the west of property wherein she is residing, is in her 56 O.S.No.6541/05 c/w O.S.No.6543/05 occupation and her sister property bearing site No.147 allotted by the BDA in favour of her father Kannaiah Shetty is situated. It is further contended that DW1 in the cross- examination further admitted that the suit property is situated at Ramakrishna Mutt slum layout and she knows that C.Vishwanath who is the vendor of the plaintiff and also she has admitted the boundaries of the suit properties. It is further contended that similar suit filed by the plaintiff in respect of another portion of property No.148 against one Smt.Ammakannamma in O.S.No.6542/2005 and during the pendency of the said suit the defendant has come forward to compromise the matter and accordingly the matter was compromised, she has vacated and handed over portion of property No.148 to the plaintiff. In support of the same the plaintiff has produced Ex.P11 to P13, i.e., plaint copy, written statement and joint memo relating to O.S.No.6542/2005. It is further contended that the defendants have clearly stated before the BDA that they have no property and the property allotted in favour of their father was lost and on that ground they secured alternate property at HSR layout. It is further 57 O.S.No.6541/05 c/w O.S.No.6543/05 contended that by considering the said aspect the BDA allotted alternate site. In order to substantiate the said aspect, the plaintiff has produced Ex.P15 allotment letter, Ex.P16 possession certificate and Ex.P17 sale deed. It is further contended that the defendants have not produced any documents to show that the suit property belongs to Ramakrishna Mutt or to them and even they have not given oral evidence of the alleged owner Ramakrishna Mutt official. So also it is contended that none of the documents produced by the defendants shows that they are residing in property No.79 as owners and the same belongs to Ramakrishna Mutt. So also it is contended that the documents produced by the defendant shows that wherein different addresses are mentioned and the said document does not disclose any ownership of the defendants over the property claimed by them. So in view of the contentions taken by them in the written arguments and the document produced in support of the plaintiff's case, it is prayed to answer issue No.1 in both cases in the Affirmative.
58 O.S.No.6541/05 c/w O.S.No.6543/05
48. The defendants also filed their written arguments wherein it is contended that according to the plaintiff his vendor C.Vishwanath purchased property No.148, Ramakrishna Mutt extension without mentioning where exactly and in which part of Bangalore it is situated. It is further contended that perusal of schedule of site No.148 mentioned in the Ex.P2 sale deed shows that "all that piece and parcel of site No.148, Ramakrishna Mutt extension, measuring east to west 20 feet and north to south 36 feet". The said schedule does not show the place where actually and in which part of Bangalore or in other place the site No.148 is situated or located. It is further contended that even the schedule does not shows that site No.148 is in Bangalore or in any other place, but curiously plaintiff contended that he purchased the property from C.Vishwanath who is his friend under registered sale deed dated 25/9/2004 under Ex.P1 and the schedule in the said sale deed for the first time wherein it was shown that the site No.148 is situated in Ramakrishna Mutt layout, Bangalore city, which was not found in his vendors sale deed Ex.P2. So it is contended that the said 59 O.S.No.6541/05 c/w O.S.No.6543/05 aspect shows that the plaintiff does not get title to site No.148 which is not in existence any where in Bangalore or any other place. It is further contended that in view of the same the plaintiff cannot seek declaration of title and possession as because when the disputed site in question whose existence or whereabouts are not known, merely because its boundaries and location of place are mentioned in his title deed at Ex.P1 he cannot seek for declaration and possession.
49. It is further contended that the documents produced by the plaintiff at Ex.P1 to 7 do not relate to property bearing No.79, but they refer to same property No.148, which is situated in a place whose whereabouts and existence are not known and also the same is not adjoining the house of defendant's property bearing No.79. So it is contended that the document produced by the plaintiff have nothing to do with the property No.79 belonging to the defendants and the defendants have rejected the plaintiff's claim of ownership of these non-existing property not only in their reply notice at Ex.P1, but also in their written statement. 60 O.S.No.6541/05 c/w O.S.No.6543/05 So it is contended that the said aspect itself clearly goes to show that the plaintiff is not residing in any portion of property No.148, but was and is residing at the time of Ex.P1 sale deed and even now in the property No.78 belonging to his mother-in-law, which is altogether different from property No.148. When that would be the case the plaintiff cannot claim declaration of title and possession of the property whose whereabouts are not known.
50. It is further contended that the plaintiff in his cross- examination admitted that he cannot say the number of 4 portions of property No.148 and he can say measurement of 2 portions and cannot say measurement of remaining 2 portions. So what he contended that such kind of evidence clearly substantiates the plea of defendants that site No.148 is not existing in Bangalore. It is further contended that the said aspect also substantiates that site No.148 is not adjoining property No.78 and 79 of Ramakrishna Mutt extension. It is further contended that defendants property bearing No.79 is adjoining the property of 78, wherein plaintiff was residing on 61 O.S.No.6541/05 c/w O.S.No.6543/05 the date of alleged sale deed dated 25/9/2004 in respect of alleged property No.148 and on the date of filing of these suits and even now. So it is contended that this kind of evidence substantiates that property No.148 is situated some where else, which is not at all known to the plaintiff. It is further contended that the plaintiff in para No.5 of his plaint contended that the schedule premises is a temporary shed and in dilapidated condition having asbestos sheet roofing with mud walls, but schedule to the sale deeds, i.e., Ex.P1 and P2 purchased by him also shows that property No.148 contains 2 square asbestos roofed house with mud walls. If that is so how could there be 4 tenements in the property purchased by the plaintiff during the year 2004 under Ex.P1. It is further contended that the plaintiff in para No.6 of the plaint contended that he is in continuous possession of property No.148 and also in para No.7 contended that his possession and ownership in respect of schedule premises is lawful and uninterrupted and he has been exercising uninterrupted right of ownership. If that is so, there was no necessity for him to file these suits for declaration and for possession. 62 O.S.No.6541/05 c/w O.S.No.6543/05
51. It is further contended that the defendants have produced several documents under two lists in their respective cases which goes to show that the defendants mother Sarojamma was residing in property No.79, even before 25/4/1978, as could be seen from the original pension sanction letter dated 25/4/1978 as per Ex.D4, containing the photo of Sarojamma issued by the Assistant Commissioner, Bangalore Sub-division. The said one document itself goes to show that the house No.79 has been in existence since more than 35 years and it is in defendant's possession. The other documents produced by the defendants at Ex.D5 to D12 clearly shows they are residing in property No.79. So also the documents at Ex.D13 to 18 goes to show they are residing in property No.79. So it is contended that merely the defendants have not produced or having registered title deeds or khatha extracts and other documents issued by the corporation of the city of Bangalore, plaintiff cannot say that the defendants are not in possession of property No.79 as owners. It is further contended that the very own documents produced by the 63 O.S.No.6541/05 c/w O.S.No.6543/05 plaintiff shows that he is residing in house No.78 belonging to his mother-in-law, which is immediately adjoining house No.79 of defendants on the southern side and even the said fact has been admitted by the plaintiff in his cross- examination. So it is contended that the house bearing No.78 and 79 are different properties and have nothing to do with the property No.148. It is further contended that the documents produced by the plaintiff relating to O.S.No.6542/2005 at Ex.P11 to P14 would not goes to help his case in any manner as because there is no such property bearing No.147 in the area. It is further contended that even the documents produced by the plaintiff at Ex.P18, i.e., letter from BDA and Ex.P19 Special power of attorney executed by the plaintiff in favour of his brother-in-law Narayana show that the residential property of both of them is house No.78, Ramakrishna Mutt extension, K.G.Nagar, and also they show that the defendants are residing in house No.79 and plaintiff is residing in house No.78 and emphatically not in alleged suit property No.148.
64 O.S.No.6541/05 c/w O.S.No.6543/05
52. It is further contended that the plaintiff in support of his case got examined two witnesses as PW2 and 3. The evidence of PW2 in no way helpful to the case of plaintiff as because he does not know anything about the properties in dispute. So also the evidence of PW3 shows that his evidence is more helpful to the defendants than to the plaintiff. So it is contended that the oral and documentary evidence adduced and produced on behalf of the defendants clearly shows that the plaintiff has failed to prove that he is the absolute owner of suit schedule property. So in view of the contentions taken by them in the written arguments it is prayed to answer issue No.1 in both cases in the Negative.
53. In the light of the written arguments filed by the respective counsels for the parties, I have gone through the records. Admittedly the plaintiff has filed O.S.No. 6541/2005 and O.S.No. 6543/2005 against the defendants seeking the relief of declaration declaring him as the absolute owner of the suit schedule property and seeking direction to the defendants to deliver possession of the suit schedule property and for 65 O.S.No.6541/05 c/w O.S.No.6543/05 such other reliefs. The records shows that by an order dated 29/8/2012 on I.A.No.9, O.S.No.6543/2005 is ordered to be clubbed along with O.S.No.6541/2008 and to record common evidence and to dispose off both the suits by the common judgment.
54. It is the specific case of the plaintiff that property No.148, Ramakrishna Mutt extension layout (slum) originally belonged to BDA, Bangalore, and the said property was allotted to one C.Vishwanath under a registered sale deed dated 20/1/1989 as per Ex.P1 and Ex.P20. It is the further case of the plaintiff that all the revenue documents entered in the name of said C.Vishwanath and there afterwards he has purchased the said property from C.Vishwanath under a registered sale deed dated 25/9/2004 as per Ex.P2 (certified copy) and Ex.P21 original sale deed. So also it is the contention of the plaintiff that the defendants were tenants in respect of different portions of property No.148 under his vendor C.Vishwanath and they continued as tenants even after he purchased the property from C.Vishwanath and also 66 O.S.No.6541/05 c/w O.S.No.6543/05 contended that even the defendants paid one month rent and then stopped. So he caused legal notice calling upon them to vacate and handover the possession and to pay arrears of rent. When they failed to comply with the notice caused by him as per Ex.P8, he has filed the present suits against the defendants seeking for declaration and direction to the defendants to handover the possession of the suit schedule property.
55. Per contra it is the specific case of the defendants that they are in possession and enjoyment of their own property bearing No.79 situated behind Ramakrishna Mutt and the same belonged to their mother Sarojamma measuring east to west 10 feet and north to south 15 feet. It is their further case that the house wherein they are residing are constructed by their mother Sarojamma about more than 40 years back and during her life time she was residing there and there afterwards they are in possession of the said property. It is the further case of the defendants that prior to the death of their mother Sarojamma she divided property No.79 into two 67 O.S.No.6541/05 c/w O.S.No.6543/05 parts and gave northern portion measuring 10 x 10 feet to the defendant in O.S.No.6541/2005 and the southern half portion measuring 10 x 5 feet to the defendant in O.S.No.6543/2005, who is none other than the own sister of defendant in O.S.No.6541/2005. So it is their specific stand that ever since then they are residing in the said property as owners thereof since about 30 years. So also it is their specific stand that the said property does not bear property No.148 as claimed by the plaintiff and they do not know where exactly the said property as claimed by the plaintiff is situated. So also it is their specific stand their property No.79 does not form a part of property No.148 as claimed by the plaintiff in the suits.
56. In the light of the above rival contention on going through the records it shows that though the plaintiff claims that he is the absolute owner of the property No.148, but in order to substantiate the said aspect, no acceptable material has been placed before the court. The plaintiff has produced as many as 21 documents, but none of the documents discloses that he is the absolute owner of property No.148. 68 O.S.No.6541/05 c/w O.S.No.6543/05 The plaintiff during the course of his cross examination at page No.8 admits that even now he is residing in house No.78 and further stated that, the house bearing No.78 itself is property No.148. At this juncture, it would be relevant to quote the said portion of evidence given by P.W.1 during the course of his cross examination at page No.8 which reads as under:
"It is true to suggest that when property No.148 was purchased by him, I was residing in property bearing No.78 and that even now I am residing in the house No.78." Witness volunteers that house No.78 is property bearing No.148.
57. From the above evidence of PW1, it can be said that though he claims the absolute owner of property No.148, but till now he is residing in property No.78 and though he claims that property No.78 itself is property No.148, but in order to substantiate the said aspect, not a scrap of paper has been placed before the court. Another important aspect to be taken note of here is that, the plaintiff contended that the BDA has allotted property No.148 to his vendor under a sale deed dated 69 O.S.No.6541/05 c/w O.S.No.6543/05 11/1/1989 as per Ex.P1 (certified copy) and Ex.P20 original copy and subsequently he purchased the said property from C.Vishwanath under a sale deed dated 25/9/2004 as per Ex.P2 (certified copy) and original sale deed Ex.P21. Upon perusal of Ex.P1 sale deed executed by BDA in favour of the vendor of the plaintiff, it shows that wherein it was not mentioned where property No.148 is located i.e., to say in which place it was located, even the said aspect has been admitted by PW1. Upon perusal of the sale deed executed by C.Vishwanath in favour of plaintiff as per Ex.P2 for the first time it was mentioned that property No.148 is in Ramakrishna Mutt layout. Now the important point to be considered here is that when the sale deed of the vendor of the plaintiff does not disclose where property No.148 is located, on what basis in the sale deed dated 25/9/2004 executed by C.Vishwanath in favour of the plaintiff, it was mentioned that property No.148 is in Ramakrishna Mutt layout. So far as this aspect is concerned absolutely no acceptable evidence has been placed before the court.
70 O.S.No.6541/05 c/w O.S.No.6543/05
58. The plaintiff in order to substantiate his case, got examined one C.Prashanth as PW3, who is none other than the Assistant Engineer, BDA. Upon perusal of the cross- examination of this PW3 at page No.2, 3rd para, last 3 lines wherein he admitted as under:
"Now I see Ex.P1. It does not disclose the place where this property is situated. As per the records the open site was sold to C.Vishwanath".
59. The above evidence of PW3 who is the Assistant Engineer of BDA authority clearly shows that the sale deed executed by BDA in favour of C.Vishwanath does not disclose where property No.148 is located. When that would be the case, it can be said that the plaintiff has failed to prove where his property is exactly located and it can be said that the evidence on record clearly shows that there is absolutely no material has been placed before the court to show where the property is located and plaintiff has failed to identify his property. When that would be the case the relief claimed by the plaintiff cannot be granted.
71 O.S.No.6541/05 c/w O.S.No.6543/05
60. So also PW3 who is the Assistant Engineer of BDA in his cross-examination the page No.3, 5th line from the top wherein he has admitted that now the suit property is within the jurisdiction of BBMP and the BDA has absolutely no right over the said property. At this juncture it would be relevant to quote the said portion of evidence which reads as under:
"At present the suit property is within the jurisdiction of BBMP. It is true that BDA has no right over the suit property."
61. In view of the above evidence given by PW3, it can be said that the evidence of this witness in no way it would goes to helpful to the case of plaintiff. It is the specific case of the defendant that they are residing in property No.79 and it does not form part of property No.148. Inspite of that the plaintiff caused notice to them to vacate and handover the possession of the suit property on the ground that he is the absolute owner of property and even the BDA authority has no right to cause any kind of notice to the defendants. Even the said aspect has been admitted by PW3 during the course of 72 O.S.No.6541/05 c/w O.S.No.6543/05 his cross examination at page No.6, last 3 lines wherein he has stated as under:
"It is true that BDA has no power to issue notice to the defendants in O.S.No.6541/2005 in respect of the property wherein they are residing".
62. The above evidence given by PW3 goes to falcify the case of plaintiff that the property wherein the defendants are residing is a part / portion of property No.148 as claimed by him. So from the evidence of PW3 it can be analyzed that his evidence is more helpful to the defendants rather than the plaintiffs.
63. The plaintiff in support of his case also examined one independent witness as PW2. Upon perusal of the evidence of this witness it shows that though he stated that property No.148 is located in Ramakrishna Mutt, K.G. Nagar, Bangalore and the plaintiff has purchased the said property from C.Vishwanath and the defendants are in possession of a portion of property No.148, but upon perusal of the cross- examination, it shows that he does not know anything about 73 O.S.No.6541/05 c/w O.S.No.6543/05 the suit property and he is giving evidence before the court only at the instance of the plaintiff.
64. It is the case of the plaintiff that property No.148 contains 4 tenements and in 3 portions these two defendants and in one portion another lady by name Ammakannamma was residing and the case filed by him against her was ended in compromise and to that effect he has produced plaint, written statement, joint memo. On the basis of the case filed by him against Ammakannamma was ended in compromise, it cannot be possible to come to the conclusion that the property wherein the defendants are residing is a portion of property No.148. Though the plaintiff contended that property No.148 contains 4 tenements, but he is unable to say the number and measurement of 4 tenements, even the said aspect has been admitted by PW1 during the course of his cross examination at page No.15, 2nd para, 3rd line from the top which reads as under:
"I cannot say number of 4 tenements of property No.148. I can say measurement of two 74 O.S.No.6541/05 c/w O.S.No.6543/05 portions and I cannot say measurement of remaining two portions."
65. The above evidence given by PW1 clearly goes to show that he does not know where exactly property No.148 is located and admittedly even now he is residing in property No.78 which is adjacent to property No.79.
66. As it is already stated above, when plaintiff is seeking declaration and possession in respect of property No.148, it is for him to establish before the court where the property is located. As it is already stated above, the evidence on record shows that the plaintiff has failed to identify the alleged property No.148 as claimed by him and none of the documents placed before the court does not disclose the property No.148 belongs to him and where it is located. Even the plaintiff has not produced the khatha extract pertaining to the suit property standing in the name of his vendor C.Vishwanath. At this juncture it would be relevant to state the said portion of evidence given by PW1 during the course of 75 O.S.No.6541/05 c/w O.S.No.6543/05 his cross examination at page 14, 1st 2 lines, wherein he has admitted as under:
"I have not produced the khatha extracts of the property standing in the name of C.Vishwanath".
So also at page No.10, 2nd para, plaintiff admits as under:
"I do not have layout plan in respect of the suit property."
67. The above piece of evidence given by plaintiff clearly goes to show that first of all he has failed to establish before the court where his property is located and virtually he has failed to identify his property. The plaintiff claims that he is the absolute owner of property No.148 and he purchased the said property from his vendor C.Vishwanath in the year 2004 and also he claims that there is a separate water and electricity connection to the said property No.148, when that would be the case, it is for him to establish the said aspect by producing the acceptable materials before the court. If according to him, there would be separate electricity and water connection to property No.148, it is for him to prove the said 76 O.S.No.6541/05 c/w O.S.No.6543/05 aspect by placing acceptable materials before the court, but he has not done so. Even the said aspect has been admitted by PW1 during the course of his cross examination at page No.12 which reads as under:
"For the property bearing No.148 there is a separate electricity connection taken in my name. It is separate water connection and it is in the name of my mother-in-law Lakshmamma. Water bills or receipts are not produced in this case."
68. Looking into the above evidence, it can be said that though he claims that there would be separate water and electricity connection to property No.148, but inspite of that he has not produced acceptable materials before the court. Under such circumstances, it can be said that mere bald say of the plaintiff would not suffice his case in the absence of production of acceptable materials before the court, as because he is claiming absolute ownership, right, title and possession over the suit schedule property.
77 O.S.No.6541/05 c/w O.S.No.6543/05
69. The learned counsel for the plaintiff in his written arguments contended that DW1 in her cross-examination admitted that alternative site No.147 was given to them and that aspect itself clearly goes to show that property No.148 is situated in Ramakrishna Mutt extension layout. So far as the said contention of the learned counsel for the plaintiff is concerned, it can be said that DW1 might have admitted with regard to the said aspect, but when the plaintiff claims absolute right, title and possession over property No.148, it is for him to establish where it is located. As it is already stated above, none of the documents placed before the court show that property No.148 is belongs to the plaintiff. The learned counsel for the plaintiff further contended that the defendants claims that the property wherein they are residing belongs to Ramakrishna Mutt authorities and by their consent they are residing in the said property, but in order to prove the said aspect they have not produced any acceptable material, i.e., to say, to show that the property wherein they are residing belongs to Ramakrishna Mutt authorities. So far as the said contention taken by the learned counsel for the plaintiff it can 78 O.S.No.6541/05 c/w O.S.No.6543/05 be said that he has filed the present suit seeking declaration and possession in respect of property No.148. When that would be the case, it is for him to establish his case by producing acceptable evidence before the court, as because it is the contention of the plaintiff that the property wherein the defendants are residing is a portion of property No.148. When that would be the case, first he has to discharge his burden, but he has failed to do so. When that would be the case, it is needless to say that there is no much force in the contention taken by the learned counsel for the plaintiff with regard to the aspect as stated above.
70. The defendants in order to prove the factum of they residing in property No.79 since more than 35 years, they have produced documents at Ex.D1 to D7, wherein the place where they are residing it was mentioned that they are residing in property No.79. As it is already stated above, plaintiff in his evidence admitted that even now he is residing in property No.78, which is adjacent to property No.79. The said 79 O.S.No.6541/05 c/w O.S.No.6543/05 admission of PW1 corroborates the document produced by the defendants at Ex.D1 to D7.
71. Per contra the plaintiff has not produced a single scrap of paper to show that the property wherein the defendants are residing is a portion of property No.148. So by analyzing the over all oral and documentary evidence on records, without hesitation it can be said that the plaintiff has utterly failed to prove that he is the absolute owner of the suit schedule property, i.e., property No.148. Another important aspect to be taken note of here is that the plaintiff has filed the present suit for declaration and possession, whereas the plaintiff in para No.6 of his plaint has stated that he is in possession in respect of suit schedule premises and his possession is lawful and uninterrupted and he has been exercising uninterrupted right and ownership. The important point to be taken note of here is that he claims that he is in uninterrupted possession of the suit schedule property, when that would be the case, the question of seeking possession of the suit schedule property does not arise. Apart from that as 80 O.S.No.6541/05 c/w O.S.No.6543/05 it is already discussed above, basically the plaintiff has failed to identify the suit schedule property, muchless the property No.148, where exactly it is located. When that would be the case, it is needless to say that the plaintiff has failed to prove issue No.1 in question in both the cases i.e., O.S.No.6541/2005 and O.S.No.6543/2005. Accordingly issue No.1 in both the cases are answered in the Negative.
72. Issue No.2 and 3 in O.S.No.6541/2005 and issue No.2 and 3 in O.S.No.6543/2005: It is the contention of the plaintiff that the defendants are tenants under his vendor C.Vishwanath and after he purchased the property from him under a sale deed in the year 2004, the tenancy of the defendants continued and even the defendants paid one month rent, i.e., for the month of October 2004. When the plaintiff has taken such a specific stand, it is for him to establish before the court that the defendants are tenants under him either by producing the lease agreement or rental receipts, but admittedly no such document has been placed before the court and even the said aspect has been admitted 81 O.S.No.6541/05 c/w O.S.No.6543/05 by the plaintiffs in unequivocal terms. Apart from that the learned counsel for the plaintiff in his written arguments at para No.5 stated that in view of the nature of the suit and in view of the contention taken by the plaintiff and the defendants, the issue No.2 and 3 in both the cases does not survive for consideration. Apart from that, as it is already stated above, no acceptable material has been placed before the court by the plaintiff to show the jural relationship of landlord and tenant in between himself and the defendants. Under the above circumstances the issue No.2 and 3 in both the cases are answered in the Negative.
73. Issue No.4 in O.S.No.6541/2005 and Issue No.4 in O.S.No.6543/2005: The defendants in the written statement contended that the suit property is not properly valued and the court fee paid by the plaintiff is insufficient. The defendants though they have taken contention with regard to the insufficiency of court fee, but they have not stated in detail in their written statement the value of the property as claimed by the plaintiff and the required court fee to be paid 82 O.S.No.6541/05 c/w O.S.No.6543/05 on the same. When that would be the case, the contention taken by the defendants cannot be accepted.
74. Per contra upon perusal of the valuation slip enclosed along with the plaint, it shows that the plaintiff for the purpose of valuation shown the value of the property as Rs.78,000/- and on the said amount as per section 24(a) of the Karnataka Court Fees and Suit Valuation Act, 1958, they have paid court fee of Rs.5,085/- each in both cases. In order to nullify the said court fee paid by the plaintiff in both the cases the defendants have not placed acceptable materials and no convincing arguments addressed with regard to the said aspect. When that would be the case, it is needless to say that the defendants in both cases have failed to prove issue No.4 for consideration. Accordingly issue No.4 for consideration in both the cases are answered in the Negative.
75. Additional Issue No.1 in O.S.No.6541/2005 and Additional Issue No.1 in O.S.No.6543/2005: The defendants in their written statement contended that the suit 83 O.S.No.6541/05 c/w O.S.No.6543/05 of the plaintiff is bad for non-joinder of necessary parties. What they contended that the plaintiff claims that the BDA allotted site to his vendor in the year 1989 and subsequently the plaintiff claims that he purchased property No.148 from C.Vishwanath under a sale deed in the year 2004, but the plaintiff has not produced acceptable materials before the court. So they contended that when the plaintiff claims his vendor was allotted a site by the BDA and subsequently he purchased the site from C.Vishwanath, in order to prove the said aspect, BDA and his vendor C.Vishwanath are necessary parties to the proceedings. So on this ground they specifically contended in the written statement that the suit of the plaintiff is bad for non-joinder of necessary parties. So far as the said stand taken by the defendants in their written statement is concerned, it can be said that looking to the plaint averments and the relief sought therein, it shows that the plaintiff has not at all claimed any kind of relief either against the BDA or his vendor C.Vishwanath. When that would be the case, there is no need to add them as a party to the proceedings. In the 84 O.S.No.6541/05 c/w O.S.No.6543/05 decision reported in 1984(2) ILR Kar page 889, wherein their lordships held as under:
"The third party against whom no relief is sought and no order made, is neither a necessary party nor a proper party."
76. So looking into the dictum laid down by their lordships in the above decision, it can be said that the same is aptly applicable to the present case in hand. Apart from that it is an well established principles of law, a party may be impleaded as a party to a suit when without his presence question involved in the suit cannot be completely decided. A person should not be impleaded as defendant merely because he is incidentally affected by the judgment. If by impleading a person as a defendant, the scope of the suit is widened requiring the court to decide issue not arising in the suit, in such cases court should not allow the impleading application. When such would be the case and looking into the facts and circumstances of the present case and also by considering the factum that the plaintiff has not at all sought any kind of relief either against the BDA or his vendor C.Vishwanath, there is 85 O.S.No.6541/05 c/w O.S.No.6543/05 no need to implead them as a party to the proceedings. For the foregoing reasons and discussions, this court is of the opinion that there is no substance in the contention taken by the defendants. Accordingly additional issue No.1 in both the cases are answered in the Negative.
77. Additional Issue No.2 in O.S.No.6541/2005 and Additional Issue No.2 in O.S.No.6543/2005: The learned counsel for the defendants during the course of his arguments and also in his reply arguments contended that the defendants are residing in property No.79 and earlier to that their mother was in possession of the same for over a period of 40 years. He further contended that the property No.79 was constructed by their mother about 40 years ago. In order to substantiate his contention he placed his reliance upon Ex.D4, i.e., a letter written by the then Deputy Commissioner, Bangalore Sub- Division dated 25/4/1978. He further contended that the said document refers to sanction of pension payable to defendant's mother Sarojamma and in the said letter her address is shown as house No.79, Ramakrishna Ashrama Katte, Bangalore - 80. 86 O.S.No.6541/05 c/w O.S.No.6543/05 So he contended that the said document clearly goes to show that the mother of defendants along with her daughters were residing in the house No.79 since 1978 as absolute owner thereof. He further contended that the plaintiff has filed the present suits after 29 years of issuance of Ex.D4 letter. He further contended that the defendants are enjoying the property No.79 as absolute owners thereof exercising their rights of ownership over the property, which is not at all a part of suit property bearing No.148 by way of adverse possession to the knowledge of all the persons including the plaintiff, as such the possession of defendants cannot be disturbed under any circumstances. In support of his contention he has relied upon the decision reported in :
(1) 2014 SAR (Civil) page 33 (2) 2011 AIR (Civil) page 161 (3) ILR 2003 Kar page 2253.
78. So in view of his above arguments and decision, he contended that the defendants have perfected their title over the suit property by way of adverse possession and accordingly 87 O.S.No.6541/05 c/w O.S.No.6543/05 urged to answer the additional issue in question in both the cases in the Affirmative.
79. The learned counsel for the plaintiff during the course of his arguments contended that the defendants at one stretch claims that they are residing in the property as claimed by them with the consent of Ramakrishna Mutt authorities and in another stretch they claims they have got the absolute right over the property by way of adverse possession. So he contended that the very stand taken by the defendants clearly shows that they are not definite about their alleged right. He further contended that in order to avail the benefit of adverse possession, first they have to admit the ownership of other party. What he contended that when they are claiming adverse possession, first they have to admit the ownership of the plaintiff, but they have denied the ownership of plaintiff. In support of his contention he has relied upon the decisions rendered in:
(1) ILR 2000 Kar page 1223 (2) AIR 2009 SC page 103 88 O.S.No.6541/05 c/w O.S.No.6543/05 (3) AIR 1992 Kar page 270.
So in view of his above arguments and decisions he urged to answer additional issue No.2 in both the cases in the Negative.
80. In the light of the arguments canvassed by the respective counsels for the parties, I have gone through the records and also the decisions as relied upon by them. Upon perusal of the respective pleadings of the parties it shows that the defendants in their statement as well as in their evidence stated that the property No.79 wherein they are residing belongs to Ramakrishna Mutt authorities and further they contended that her mother was constructed house in the property and property No.79 is in their possession since 40 years, as such they are exercising right of ownership over the said property to the knowledge of all persons including the plaintiff. When the defendants claiming their right over the property wherein they are residing by way of adverse possession, first they have to admit the ownership of the property to whom it belongs. The defendants contended that 89 O.S.No.6541/05 c/w O.S.No.6543/05 they are in possession of the property wherein they are residing since 40 years to the knowledge of all persons including the plaintiff. If that would be the case, it is for them first to admit the ownership of plaintiff, but the evidence on record shows that they totally denied the right and title of the plaintiff over the suit property and throughout their written statement and evidence contended that the property wherein they are residing is altogether a different property and there is no nexus between property No.148 and property No.79 wherein they are residing. When that would be the case, the plea of the defendants that they perfected their title over the property wherein they are residing by way of adverse possession cannot be accepted. In this regard it would be useful to refer the decision rendered in ILR 2000 Kar page 1223, between R.Prakash and another Vs. Smt.G.P.Marthamma, wherein it was held by their lordships as under:
"Adverse possession - whether can be claimed by the defendant denying title of the plaintiff who is the true owner ? Held - without 90 O.S.No.6541/05 c/w O.S.No.6543/05 admitting the title of the plaintiff, the defendant raising question of adverse possession is not known to law."
81. In another decision reported in AIR 1992 Kar page 270 between Venkatachalaiah and another Vs. Nanjundaiah (deceased by LRs) and others wherein it was held by their lordship as under:
"Limitation Act (36/1963) Article 64, 65 and adverse possession - benami transaction - plaintiff claiming real ownership of property and in alternate adverse possession - plea of adverse possession - cannot be sustained for absence of "animus possidendi" - from possession beyond statutory period, not sufficient."
Further it was held by their lordships that, "since the acceptance of the plea of adverse possession has serious consequence of the real owner losing his title over the property. A clear case will have to be made out and any half hearted attempt in this regard should be discouraged."
91 O.S.No.6541/05 c/w O.S.No.6543/05
82. Looking into the ratio laid down by their lordships, in the above decisions, it can be said that they are directly applicable to the present case on hand. As it is already stated above, at one stretch the defendant says that they are in possession of the property by consent of Ramakrishna Mutt authorities and in another stretch they claims absolute ownership over the property by way of adverse possession to the knowledge of all including the plaintiff. So looking into the stand taken by the defendants it can be said that they are not so firm in their say. So by considering all these aspects and in the light of the dictum laid down by their lordships in the above two decisions, it can be said that the defendants have failed to prove the additional issue in question in both the cases. I have gone through the decisions relied upon by the learned counsel for the defendants. Looking into the facts and circumstances of the present case, it can be said that those decisions would not come to the aid of defendants. Accordingly additional issue No.2 in both the cases are answered in the Negative.
92 O.S.No.6541/05 c/w O.S.No.6543/05
83. Issue No.6 in O.S.No.6541/2005 and Issue No.6 in O.S.No.6543/2005: In view of my findings on the above issues, I proceed to pass the following:
ORDER The suit filed by the plaintiff in O.S.No.6541/2005 and O.S.No.6543/2005 (both cases are clubbed) are hereby dismissed.
No order as to cost.
Draw decree accordingly The original judgment and decree shall be kept in O.S.No.6541/2005 and the copy of the same shall be kept in O.S.No.6543/2005.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in open Court on this the 18th day of January 2016).
(Sadananda M. Doddamani) XXV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.93 O.S.No.6541/05 c/w O.S.No.6543/05
ANNEXURE:
Witnesses examined for the plaintiff:
P.W.1 - K.Saravanan
P.W.2 - Varadaraju
P.W.3 - Prashanth
Witnesses examined for the defendant:
D.W.1 - Gajalakshmi
Documents marked for the plaintiff:
Ex.P1 : Certified copy of the sale deed dated
11/1/1989
Ex.P2 : Certified copy of another sale deed dated
25/9/2004.
Ex.P3,P4 : Certified copy of the khatha extract and
certificate respectively.
Ex.P5 to 7 : Kandayam paid receipt, encumbrance
certificate and nil encumbrance certificate respectively.
Ex.P8 : Copy of the legal notice dated 1/3/2005. Ex.P9 : Postal acknowledgment for having received the legal notice by the defendants.
Ex.P10 : Reply notice dated 30/31-3-2005. Ex.P11 to 14: Certified copies of plaint, written statement, joint memo and order sheet in O.S.No.6542/2005.94 O.S.No.6541/05 c/w O.S.No.6543/05
Ex.P15 to P18: Allotment letter, possession certificate, sale deed and endorsement by BDA respectively, which are obtained under RTI Act.
Ex.P19 : Original special power of attorney executed by him in favour of his brother-in-law Narayana. Ex.P20 : Absolute sale deed executed by BDA in favour of C.Vishwanath.
Ex.P21 : Registered sale deed executed by
C.Vishwanath in his favour.
Ex.P22 : Tax paid receipt.
Ex.P23 : Original encumbrance certificate.
Documents marked for the defendant:
Ex.D1 : Photos
Ex.D2 : Notice dated 31/8/2012
Ex.D3 : Office copy of reply notice
Ex.D4 : Pension receipt
Ex.D5 : Death certificate
Ex.D6 : Death certificate of husband of DW1
Ex.D7 : Marriage invitation card of the son of
defendant
Ex.D8 : Receipt
Ex.D9&10 : Two electricity bills
Ex.D11 : Inland letter
Ex.D12 : Vehicle insurance of brother-in-law of DW1
Ex.D13&14: Two bank passbooks
95 O.S.No.6541/05 c/w O.S.No.6543/05
Ex.D15 : Cumulative record
Ex.D16 : Two wheeler insurance policy
Ex.D17 : Marriage invitation card
Ex.D18&19: Photos and negatives.
(Sadananda M. Doddamani)
XXV ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
96 O.S.No.6541/05 c/w O.S.No.6543/05
97 O.S.No.6541/05 c/w O.S.No.6543/05
Judgment pronounced in open court (vide
separate detailed judgment) with the
following operative portion:-
ORDER
The suit filed by the plaintiff in
O.S.No.6541/05 & O.S.No.6543/05
(both cases are clubbed) are hereby
dismissed.
No order as to cost.
Draw decree accordingly.
The original judgment and
decree shall be kept in
O.S.No.6541/2005 and the copy of
the same shall be kept in
O.S.No.6543/2005.
XXV ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
98 O.S.No.6541/05 c/w O.S.No.6543/05
99 O.S.No.6541/05 c/w O.S.No.6543/05
100 O.S.No.6541/05 c/w O.S.No.6543/05
The plaintiff claims interest at the rate of 24% p.a. in the plaint averments and in the prayer column he sought for interest on the claim amount at the rate of 18% p.a. Admittedly there was agreement between the parties to pay interest in case of the defendants become defaulters in the matter of payment of rent. So also it appears that the rate of interest claimed by the plaintiff is appears to be very exorbitant. However by considering the lapses on the part of the defendants in not paying the rents regularly if he is directed to pay the interest at the rate of 6% on the claim amount that would suffice the ends of justice. Accordingly these issues are answered partly in the Affirmative.