Bangalore District Court
Sri.A.R.Munichinnappa vs Sri.T.Chandrashekar on 21 March, 2020
IN THE COURT OF XL ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-41) AT BENGALURU.
Dated this the 21st day of March, 2020.
PRESENT
SRI.RAVINDRA. M. JOSHI,
M.A., LL.B. (Spl.)
XL Addl.City Civil & Sessions Judge,
Bengaluru.
O.S.No.4230/1986
PLAINTIFFS: 1. Sri.A.R.Munichinnappa
Since deceased by his LRs
1(a). G.Lakshmidevamma
W/o A.R.Munichinnappa
Aged about 65 years,
1(b). A.M.Rathnakala
D/o A.R.Munichinnappa
Aged about 49 years,
1(c). A.M.Rammohan
S/o A.R.Munichinnappa
Aged about 47 years,
1(d). Smt.Nalini A.M
W/o Govindaraj. K
D/o A.R.Munichinnappa
Aged about 46 years,
1(e). A.M.Madhu
S/o A.R.Munichinnappa
Aged about 39 years,
2 O.S.No.4230/1986
1(f). A.M.Mohan
S/o A.R.Munichinnappa
Aged about 37 years
All are residing at No.E-296,
5th main road, Brindavan,
Arekere Mico Layout,
Bannerghatta road,
Bangalore-560 076.
2. A.R.Srinivas
S/o A.M.Ramaiah
Aged about 60 years, r/at
No.1, New Mico- Layout,
Adogodi, Bangalore-30.
3. A.R.Lokanath
S/o A.M.Ramaiah
Aged about 30 years, r/at
No.1, New MIco Layout,
Bangalore-30.
(since dead and no representation,
LRs are made as defendant Nos.4 to 6
as per order of the Court dated
01/06/2005)
(By Sri. S.V.Bhat - Advocate)
AND:
DEFENDANTS: 1. Sri.T.Chandrashekar
Since deceased by his LRs
S/o Late K.N.Thimmaiah
Aged about 48 years, r/at
No.369/A, Akkithimmanahalli Layout,
5th cross, Lakshmi road,
3 O.S.No.4230/1986
Bangalore-560 027.
Since deceased by his LRs
1(a). Smt.Pankaja Chandrashekar
W/o T.Chandrashekar
Aged about 60 years,
1(b). Smt.Sheetal
D/o T.Chandrashekar
Aged about 37 years,
1(c). Smt.Harsheela
D/o T.Chandrashekar
Aged about 33 years,
D1(a) to (c) are residing at
Door NO.51, 10th main,
Jayanagar 1st Block,
Bangalore-11.
2. The District Officer for SC/ST
Welfare,
Bangalore, Urban District,
Visvesaraya Tower, Podium Block,
Veedana Veedi,
Bangalore-01.
3. O.V. Sesha Reddy,
S/o Kodandarama Reddy,
Prop: M/s. Hotel Minerva Bar and
Restaurant,
Hosed in Balaji Lodge Building,
J.C.Road, Bangalore-02.
(Defendants 2 and 3 deleted as per
order dated 13/11/2002)
4 O.S.No.4230/1986
4. Smt.Leelavathi
W/o A.R.Lokanath
5. Sri. Raghavendra
S/o A.R.Lokanath,
6. Smt. Aruna
D/o A.R.Lokanath
(Amended as per the order of the
Court dated 01/06/2005)
D-4 to D-6 residing at No.16,
2nd cross, Arekempanahalli,
Opp. Wilson Garden, 10th cross,
Bangalore-560 027.
(By Sri.Jaya Prakash - Adv. for D1
Sri.N.S.- Adv. For D4 to D6,
Case against D2,3 dismissed )
i) Date of Institution of the 16-10-1986
suit.
ii) Nature of the suit. Ejectment
iii) Date of the 16-03-1995
commencement of
recording of evidence.
iv) Date on which the
judgment was pronounced. 21-03-2020
v) Total Duration Years Months Days
33 05 05
(RAVINDRA. M. JOSHI)
XL Addl.City Civil & Sessions Judge,
Bengaluru.
****
5 O.S.No.4230/1986
JUDGMENT
This is a suit for possession and mesne profits in respect schedule property.
2. The plaintiff filed the present suit praying for directing the defendants to deliver vacant possession of the schedule premises and to pay past and future mesne profits till delivery of possession. Premises bearing City Corporation No.26, 26/1, 26/2 and new No.32 (Old Nos.29 & 26) comprising ground and first floor of No.26 ground, first and second floor 26/1 and first floor in 32 (26/2) originally leased to and in occupation of M/s.Balaji Traders and now in the occupation of defendant Nos.1 to 3 bounded on East by vacant land of Shanthappa, West by J.C.Road, North by Petrol Bunk and South by Building Housing Bombay Café and portion of the property bearing No.26, situated on the eastern side of the main building in property 6 O.S.No.4230/1986 No.26 i.e., the out house portion, including the lavatory situated on its north eastern side, J.C.Road, Bangalore measuring about East to West 70 feet and North to South 22 feet and consisting of a hall, six rooms and bounded on East by property of Shanthappa, West by passage and main building in the same property, North by newly constructed building on property No.26/1 of defendants 5 to 7 and South by passage belonging to 1st plaintiff and thereafter property of 3rd plaintiff is treated as schedule 'A' and schedule 'B' property by plaintiff for the sake of convenience.
It is averred that plaintiff Nos.1 to 3 are brothers. The schedule property was leased to M/s.Balaji Traders, a partnership firm by father of plaintiffs late A.R.Ramaiah through registered Lease Deed dated 18/12/1969. The partnership firm consists of defendant No.1 and plaintiff No.1. The lease amount 7 O.S.No.4230/1986 was Rs.1,000/- per month. It is averred that terms of partnership firm between the plaintiff No.1 and defendant No.1 came to be incorporated under Partnership Deed dated 09/03/1971 and it shall be the partnership at Will terminable at three months notices on either side. In case of death of any partners, the partnership shall not dissolved, but the legal heir, successor or representatives of deceased shall be partners of the firm. The partnership firm came to an end by notice of dissolution dated 02/07/1983 given by plaintiff No.1 and also by institution of suit bearing O.S.No.1299/1982. It is averred that plaintiff No.1 also published notice of dissolution in Deccan Herald newspaper on 08/11/1983. It is averred that since partnership is at will, the partnership stood dissolved on the institution of the suit and service of summons of the suit on defendant. The plaintiff averred that at the time of execution of lease deed in favour of 8 O.S.No.4230/1986 M/s.Balaji Traders, the property was Joint Hindu Family property and late A.M.Ramaiah was kartha of the family. It is pleaded that there was a family partition of the property. In the said partition, property was divided into three shares and allotted to plaintiff Nos.1 to 3. Under the terms of the partition, A.M.Ramaiah was entitled to receive rent during his lifetime. The plaintiff pleaded that their father A.M.Ramaiah got suit legal notice terminating the lease with effect from 18/10/1983. The father of the plaintiff died on 20/10/1984. The plaintiffs pleaded that lease was in favour of M/s.Balaji Traders and on the dissolution of the firm, the partners ceased to have any right of tenancy in the schedule firm irrespective of the period of lease mentioned in the lease deed. The lease came to an end. The plaintiff averred that defendant No.1, the Managing Partner excluded plaintiff No.1 from business of M/s.Balaji Traders, even prior to institution of suit 9 O.S.No.4230/1986 O.S.No.1299/1982. On the dissolution of the firm by institution of the suit and issuance of the notice, there is no lease or right of tenancy in favour of defendant No.1 or M/s.Balaji Traders. The defendant No.1 is in wrongful possession and occupation of the schedule property. The plaintiffs are entitled to seek possession of the schedule property. The plaintiff averred that after dissolution of partnership firm, defendant No.1 is in wrongful possession and he was bound to vacate and deliver possession to the owner of the property. Inspite of termination of lease effective from 18/10/1983, the defendant has not vacated and handover the possession, therefore, the plaintiffs are entitled to institute suit for ejectment of defendants and possession of the property. The plaintiff pleaded that as M/s.Balaji Traders did not pay any rent from April, 1978 upto to the end of October, 1983. It is averred that father of the plaintiffs A.M.Ramaiah filed O.S.10529/1983 for 10 O.S.No.4230/1986 recovery of arrears of rent. The suit came to be dismissed and against judgment and decree, RFA is preferred. The plaintiffs averred that they are entitled to claim mesne profits from defendant No.1 from October, 1983. The plaintiff further pleaded that defendant No.3 is a sub-lessee paying monthly rent of Rs.2,600/-. But defendant No.1 is in wrongful possession. The defendant No.3 cannot claim any independent right. The plaintiff further averred that defendant No.1 inducted defendant No.2 into portion of building comprising of property No.26. He was put in possession of 22 rooms on monthly rent of Rs.7,500/-. It is averred that plaintiffs notified defendant No.2 not to pay the amount to defendant No.1 and bring to his notice as defendant No.1 has no manner of right, title and interest. However, defendant No.2 continued the occupation and has not made payment to the plaintiffs for use and 11 O.S.No.4230/1986 occupation. Therefore, plaintiffs are entitled to seek eviction of defendant No.2 and also for mesne profits.
It is pleaded that defendant No.1 is a partner of M/s.Balaji Traders-lessee and on the dissolution of the firm is in wrongful possession. Therefore, plaintiffs are entitled to claim mesne profits past and future for occupation of the premises. NO payment is made as rent also from 18/10/1983 to the plaintiffs or to late A.M.Ramaiah. It is averred that even the rent under the lease deed was only Rs.1,000/- per month, from the date of dissolution of the firm and termination of lease the plaintiffs are entitled to seek mesne profits for use and occupation. The plaintiffs further averred that they had filed O.S.No.1299/1982 against defendant No.1 for dissolution of the partnership firm M/s.Balalji Traders. The suit came to decreed on 16/04/1994 dissolving the firm with effect from 29/07/1982. Thereafter, the plaintiff has initiated the Final Decree 12 O.S.No.4230/1986 Proceedings in FDP No.6/1995. In the said FDP, plaintiff No.1 has filed an application for delivery of possession of the property fallen to his share i.e., the main building including the out house portion as the firm is dissolved and no more required. The application came to be allowed. However, defendant No.1, who was appointed as receiver has delivered only 19 rooms on 26/03/1998. However, fails to handover out house portion. In view of the same, plaintiff No.1 filed an application, which was dismissed on the ground that he will have to work out remedy only under the lease deed which is also taken note by the Hon'ble High Court in RFA No.109/2000 for which defendant Nos.5 to 7 are also parties. The cause of action accrues to the plaintiff to file the suit on dissolution of the firm in 1982 and 05/10/1983 and termination of lease effective from 10/11/1983.
13 O.S.No.4230/1986
3. In pursuance of summons, defendant Nos.1 to 3 put their appearance and filed written statement. The defendant No.1 in the written statement contended that suit of the plaintiff is not maintainable in law or on facts. The subject matter is one which is protected and excluded from the purview of general law under the provision of Karnataka Rent Control Act. The defendant admits the averments made out in para 2 of the plaint as correct. It is admitted that A.M.Ramaiah leased the property in favour of M/s.Balaji Traders by executing the registered Lease Deed. It is also admitted that Balaji Traders consists of plaintiff No.1 and defendant No.1 as partners. The defendant averred that partnership firm is still existing. The suit is bad for non-joinder of necessary parties. The defendant averred that partnership firm of M/s.Balaji Traders was constituted in 1968 and in favour of the firm, a lease was also made by A.M.Ramaiah in the year 14 O.S.No.4230/1986 1968 for a period of 5 years. Initially partnership was for a period of 5 years. The defendant contended that partnership firm is not will as contended by the plaintiffs. The defendant averred that partnership firm is the subject matter of O.S.No.1299/1982 filed by plaintiff No.1 against defendant No.1 praying for dissolution of M/s.Balaji Traders under Section 44 of the Indian Partnership Act. Therefore, it is not open for plaintiffs to contend in this suit that the firm M/s.Balaji Traders is a partnership at will. The defendant denied the averments made out in para 4 of the plaint as false. It is denied that partnership firm came to end by issuance of notice on 02/07/1983 by plaintiff No.1. Further it is denied that with the institution of the suit in O.S.No.1299/1982 the firm M/s.Balalji Traders has come to an end. It is also denied that with the publication in the paper dated 08/11/1983, the firm came to an end. The contention of the 15 O.S.No.4230/1986 plaintiffs as to firm stood dissolved is incorrect and unfounded. The defendant averred that at the time of lease in favour of M/s.Balaji Traders, the property was a joint family property of A.M.Ramaiah, who was kartha of joint family. The defendant denied that there was a partition among members of joint family of A.M.Ramaiah under the Partition Deed. It is averred that parties seems to have entered into a family arrangement and same has been recorded in writing among the members of the family. It is denied that as per the terms of the partition, A.M.Ramaiah was entitled only to receive the rent during his lifetime. The defendant averred that family arrangement to which plaintiffs are parties, the actual enjoyment of the property during the subsistence of lease in favour of M/s.Balaji Traders under the lease deed of 1969 was postponed even though specific portions of the property were allotted to the share of the plaintiffs. The plaintiffs are also 16 O.S.No.4230/1986 signatories to such record of family arrangement. The suit cannot be construed as one instituted on the basis of the termination of the tenancy under the notice got issued by A.M.Ramaiah. The defendant averred that A.M.Ramaiah had himself instituted a suit on the basis of his own notice. The suit was dismissed. The suit filed by A.M.Ramaiah is only for claiming the arrears of rent, not for possession. The defendant denied the averments made out in para 6 of the plaint as false. It is denied that M/s.Balaji Traders, the partnership firm has been dissolved and it has no tenancy rights. The defendant denied the plaint averments as to defendant No.1 was managing partner of the firm. It is averred that plaintiff No.1 was managing the business of the firm for three years. It is denied that plaintiff No.1 was excluded from business of M/s.Balaji Traders is without substance. The defendant is not claiming any tenancy rights. He is in possession of the premises 17 O.S.No.4230/1986 for and on behalf of the lawful lessee i.e., M/s.Balaji Traders. Therefore, the contention of the plaintiffs as to defendant No.1 is in lawful possession and occupation of the premises is baseless. The plaintiffs have no right to seek possession of the property. The defendant denied the averments made out in para 7 of the plaint as false. It is denied that from 1978 no payment of rent has been made in respect of the property. The defendant contended that there is a finding recorded in O.S.10529/1983, the suit instituted by A.M.Ramaiah where plaintiffs have come on record as legal representatives. The defendant is not aware of RFA filed by the plaintiffs. The plaintiffs are not entitled for mesne profits as claimed. The defendant pleaded that defendant No.3 is sub-lessee of the premises. Apart from defendant No.3, there is one more portion which is let out to Curlon showroom. The lease in favour of defendant No.3 is made in accordance with the terms of the 18 O.S.No.4230/1986 registered lease deed in favour of M/s.Balaji Traders and also in accordance with the arrangements arrived at between the partners of M/s.Balaji Traders. Therefore, defendant No.3 is lawful sub- lessee. The contention of the plaintiff as defendant No.3 is in wrongful possession of the property and he has no independent right are false. The defendant contended that rent paid by defendant No.3 is Rs.2,200/- not Rs.2,600/- per month. The defendant denied averments made out in para 9 of the plaint as false. It is denied that during January, 1986, defendant No.2 has been inducted into possession of the premises consisting of 22 rooms. It is averred that defendant No.1 is a partner of M/s.Balalji Traders and in the course of business has allowed defendant No.2 to occupy 22 rooms on monthly rental basis. This act on the part of 1st defendant s in accordance with his position as partner of M/s.Balaji Traders. The defendant further averred 19 O.S.No.4230/1986 that defendant No.2 has not continued possession of the premises and has vacated 22 rooms and Balalji Traders is using it for the purpose of its business. The plaintiff No.1 had no right to notify the defendant No.2 as unauthorized possession. The defendant denied the averments made out in para 10 of the plaint as false. The defendant contended that it is not in wrongful possession nor is in possession in his own right. The plaintiffs are not entitled to claim mesne profits. A.M.Ramaiah had received rent from M/s.Balaji Traders much more what was due upto the end of October, 1983. Therefore, the contention of the plaintiff as to no rent from 18/10/1983 is paid is baseless.
The defendant pleaded that a joint relief has been claimed by the plaintiffs in this suit. The plaintiff No.3 died on 28/07/1995. The LRs of plaintiff No.3 are not brought on record. Therefore, the entire suit abates. The defendant No.1 further 20 O.S.No.4230/1986 averred that he has been appointed as receiver of M/s.Balaji Traders during the pendency of O.S.No.1299/1982 by an order of Court dated 07/10/1987. After appointment of receiver, the defendant No.1 is in possession of the premises on behalf of Court and not in his individual capacity. Till then the Court has taken notice of the fact that his possession was on behalf of firm in the course of the same order. O.S.No.1299/1982 came to be disposed on 16/04/1994 by passing a preliminary decree and defendant No.2 was continued as receiver and defendant No.1 was directed to assist the Commissioner that may be appointed in final decree proceedings. It is averred that in FDP No.6/1995, the Commissioner was appointed to take accounts of assets and liabilities of the firm and to submit a report. Further, this defendant was directed to deliver possession of record to Commissioner and to assist him. The defendant pleaded that he 21 O.S.No.4230/1986 continued as receiver until delivery of respective portions of the plaint schedule property to 3rd plaintiff in this suit by virtue of different orders passed in FDP No.6/1995. The defendant averred that as far as plaintiff No.1 is concerned, the Court passed an order on 20/10/1997 as plaintiff No.1 was not taken possession, keys were deposited in the Court in FDP on 23/01/1998. The plaintiff No.1 took those keys on 26/03/1998. The other two plaintiffs, one of them through his legal representatives took delivery of possession of their portions on different dates. Thus, prayer sought by the plaintiffs for delivery of possession does not survive. The defendant pleaded that deposit made by defendant No.2 in this suit and claim of plaintiffs in this regard in FDP No.6/1995, it is treated as assets of the firm M/s.Balaji Traders, which is adjusted in the report of the Commissioner and same has been accepted by the Court as per order dated 22 O.S.No.4230/1986 28/06/1998. The plaintiff No.1 is the plaintiff in the said proceedings and he did not challenge the order passed by the Court, as such his claim for deposit in the suit cannot be considered. The defendant averred that defendant No.1 was in possession of the property as a receiver. The nature of possession held by defendant No.1 is Custodia Legis. Therefore, no damage or mesne profits can be claimed against the receiver functioning on behalf of the Court. The claim of the plaintiff made in FDP by filing an application has been rejected by Court on 13/01/1998. Therefore, the claim of plaintiff regarding mesne profits is untenable. Further, it is contended that amount received by defendant No.1 from defendant No.3, the Court held in the judgment in O.S.No.1299/1982 that by arrangement between the plaintiff No.1 and defendant No.1 as partners of M/s.Balaji Traders, as such defendant No.1 was entitled to appropriate the said amount. The 23 O.S.No.4230/1986 judgment passed in O.S.No.1299/1982 has become final. No cause of action accrues to the plaintiff to file the suit. On these grounds and substances, prayed for dismissal of the suit.
4. During the pendency of the suit, the defendant No.1 died. The LRs are brought on record and they filed written statement reiterating the contents of written statement filed by defendant No.1. The LRs of defendant No.1 contended that suit of the plaintiff against LRs of defendant No.1 is not maintainable in law or on facts. The LRs of defendant No.1 are nothing to do with the subject matter of the suit. They are not proper and necessary parties to the suit. It is averred that deceased defendant No.1 was appointed as a receiver in O.S.No.1299/1982 by the Court on 07/10/1987. In view of this, the defendant No.1 possessed the property on behalf of the Court and not in individual capacity. Even after disposal of O.S.No.1299/1982 24 O.S.No.4230/1986 on 16/04/1994, the defendant No.1 continued as receiver and he was directed to assist the Court Commissioner in Final Decree Proceedings. The defendants averred that in FDP No.6/1995, Court Commissioner was appointed to take accounts of assets and liabilities of M/s.Balaji Traders and submit the report. Further, defendant No.1 was directed to deliver possession of records to Commissioner and to assist him. The defendants averred that as per the orders passed in FDP No.6/1995, on various dates, the defendant No.1 delivered the possession of the property, as such the relief of possession claimed by the plaintiffs does not survive. The defendants further averred that deceased defendant No.1 possessed the property as survivor and the nature of the possession held by him is custodian legacy. The plaintiffs in the FDP proceedings made application for claiming mesne profits, which has been rejected on 30/01/1998. 25 O.S.No.4230/1986 The defendants averred that amount received by defendant No.1 from 3rd defendant, it is held in the judgment passed in O.S.No.1299/1982 that by the arrangement between deceased plaintiff No.1 and deceased defendant No.1 are partners of M/s.Balaji Traders. The 1st defendant was entitled to appropriate amount. The defendants further averred that judgment attained its finality. It is not open to plaintiff to re-agitate the same.
5. Initially plaintiff Nos.1 to 3 filed the present suit against defendant Nos.1 to 3. After appearance, defendant Nos.2 and 3 filed their written statement. The defendant No.2 in the written statement contended that defendant No.2 will not contest any of the averments made out in para Nos.1 to 12 of the plaint and prayer portion. It is contended that defendant No.2 took premises in question under the bonafide belief that defendant No.1 had authority to lease the premises and paid rent from January, 1986 26 O.S.No.4230/1986 to March, 1986. It is averred that after filing the present suit, defendant No.2 deposited the rent amount of Rs.62,419/- till the end of December, 1986 and vacated the premises in the same month. Therefore, prayed for dismissing the suit.
6. The defendant No.3 in the written statement contended that schedule property was leased to M/s.Balaji Traders in the year 1969 on monthly rent of Rs.1,000/- by father of plaintiffs. The defendant No.3 contended that he is not aware of the averments made out in para Nos.1 to 10 of the plaint. The defendant pleaded that suit against defendant No.3 is not maintainable. It is averred that he is a sub-lessee of the premises in the schedule property. The lease in favour of this defendant is in accordance with law and binds the landlord of the schedule premises of the plaintiffs, who claims to be the landlord after the death of their father A.M.Ramaiah. Therefore, the provisions of 27 O.S.No.4230/1986 Karnataka Rent Control Act applies. Therefore, the plaintiffs are not entitled to take any action for taking possession of the premises from this defendant against the provisions of K.R.C Act. The suit of the plaintiffs is bad for non-joiner of M/s.Balaji Traders, the tenant of the schedule premises. No cause of action accrues to plaintiffs and plaintiffs are not entitled for the relief sought. The defendant further averred that as per the lease agreement between the A.M.Ramaiah and M/s.Balaji Traders, the Balaji Traders are entitled to sub-lease portion of the premises and also entitled to put up further construction of first floor. M/s.Balaji Traders leased newly constructed portion in the first floor to Sri.Munikrishna, who was running Bar and Restaurant in the name of Hill Top Bar and Restaurant. The defendant averred that said Munikrishna by executing General Power of Attorney, allowed defendant No.3 to run the said 28 O.S.No.4230/1986 business. It is further averred that subsequently plaintiff No.1 and defendant No.1, who were partners of Balaji Traders, entered into an agreement under which, defendant No.1 was given exclusive right to let out and collect rent. On ascertaining the right given to defendant No.1, this defendant entered into rent agreement fixing monthly rent of Rs.2,200/- and continued paying rent to defendant No.1. The defendant averred that under such circumstances, contention of plaintiffs as to possession of defendant No.3 is false. On these grounds and substance prayed for dismissing the suit.
During the pendency of the suit, plaintiffs filed memo not to press suit against defendant Nos.2 and 3. In view of memo, suit against defendant Nos.2 and 3 has been dismissed on 13/11/2002.
7. During the pendency of suit, plaintiff No.3 died. The LRs of plaintiff No.3 are brought on record as defendant Nos.4 to 6 as per order dated 29 O.S.No.4230/1986 01/06/2005, they filed their written statement. It is pleaded that suit in the present form and after carrying amendment, not maintainable. The plaintiff has no right to seek possession of the properties of his brothers, who are original plaintiffs alongwith present plaintiff. The defendants averred that plaintiff filed O.S.No.1299/1982. In the said suit, the Court appointed defendant No.1 as receiver of M/s.Balaji Traders and all the disputes were decided on 16/04/1994 by passing preliminary decree. It is further averred that defendant No.1 continued as receiver with direction to assist the Court Commissioner in Final Decree Proceedings. The plaintiffs filed FDP No.6/1995 and in the said proceedings, an application for finalization of accounts of firm has been filed by the plaintiff. It is averred that in the proceedings, rent by received by the firm from defendant No.2 were taken into account and finalized. The defendants further 30 O.S.No.4230/1986 averred that in the said proceedings, each brother put in possession of the respective shares in the schedule property by the receiver as per orders of the Court. Accordingly, they have taken possession of their share on 09/08/1996. Another brother of plaintiff i.e., Srinivas took possession of his share on 06/081997. The plaintiffs though initially refused to take keys of his portion, finally he received the keys deposited in the Court on 26/03/1998. In view of taking separate possession of respective shares, these defendants are not interested in claiming the possession again. The plaintiffs also cannot maintain such prayer. The defendants averred that plaintiff is not entitled for mesne profits as he was a sharer in rent as a partner of the firm till conclusion of FDP No.6/1995. The plaintiffs took possession of his share in the property. Therefore, plaintiffs cannot claim mesne profits in this suit. In the additional written statement, it is pleaded that they are wife 31 O.S.No.4230/1986 and children of late Lokanath. The schedule property was divided among three brothers of plaintiff and in the said partition, main building was allotted to plaintiffs. It is pleaded that at that time, the building was leased out to partnership firm, in which plaintiff and defendant No.1 are partners. The plaintiffs filed O.S.No.1299/1982 for the dissolution of partnership firm. The firm was dissolved in terms of judgment passed in the suit. Thereafter, FDP No.6/1995 was filed, a Commissioner was appointed to take accounts of the firm, later as per the direction of the Court, the possession of properties has been delivered to respective sharers. It is averred that Lokanath took possession of his share i.e., MNOP demarked in palupatti. The defendants averred that after taking possession of the share of Lokanath, revenue records are changed in their names and they are in peaceful possession and enjoyment of their shares.
32 O.S.No.4230/1986
8. On the basis of pleadings, the following issues are framed:
1. Is the suit not maintainable in view of the provisions of Karnataka Rent Control Act ?
2. Is the suit bad for non-joinder of necessary parties ?
3. Does the plaintiffs prove that defendants are in unauthorized occupation of the schedule premises?
4. Are the plaintiffs entitled for past and future mesne profits ?
5. What Order or Decree ?
Additional Issue dated 31/05/1995 :
1. Whether defendant No.2 proves that there is no subsisting cause of action against it ?
Additional Issue dated 01/06/2005 :
2. Whether the suit stands abated in view of the plea in paragraph 13(a) of the written statement of defendant No.1 ?
Additional Issue dated 06/09/2005 :
3. Whether the suit is not maintainable as contended by defendant No.1 in his additional written statement and 33 O.S.No.4230/1986 defendants No.5(a) to (c) in their written statement ?
4. Whether plaintiff is entitled for possession of suit property from defendants as prayed ?
9. To prove and substantiate the contention, initially the General Power of Attorney holder of plaintiff examined as PW-1. As per the order passed in W.P.No.8734/2007 dated 25/06/2007, plaintiff examined as PW-2. Ex.P.1 to Ex.P.20 are marked. The defendant No.1 examined as DW-1 and marked Ex.D.1 to Ex.D.20.
10. Heard the arguments.
11. The above issues are answered for the reasons, findings given in the foregoing discussions as:
REASONS
12. ISSUE NOs.1, 2 & ADDL.ISSUE NO.1 dated 31/05/1995: These issues are inter- connected and to avoid repetition of discussion, they 34 O.S.No.4230/1986 are taken up jointly for discussion and consideration.
Initially plaintiff Nos.1 to 3 filed the present suit praying for the relief of possession and future mesne profits in respect of the schedule property against defendant Nos.1 to 3. During the pendency of the suit, defendant Nos.2 and 3 are deleted as per order dated 13/11/2002. The defendant Nos.2 and 3 filed their written statements. The defendant No.2 in the written statement contended that defendant No.2 does not contest any of the averments made out in para Nos.1 to 12 of the plaint and also prayer. It is contended that defendant No.2 took the premises in question under the bonafide belief that defendant No.1 had authority to lease the premises and paid rent from January, 1986 to March, 1986 to defendant No.1, the lease having commenced from 01/01/1986. After filing of the present suit, the defendant No.2 deposited rent amount of 35 O.S.No.4230/1986 Rs.62,419/- on 21/05/1987 and vacated the premises at the end of December, 1986. Therefore, suit against defendant No.2 is not maintainable. The defendant No.3 in the written statement admitted the averments of the plaint as to plaintiffs are brothers and schedule property is leased by father of plaintiffs in favour of M/s.Balaji Traders on monthly rent. The defendant No.3 pleaded that suit for possession as against defendant No.3 is not maintainable. The lease in favour of this defendant is in accordance with law and binds landlord of the plaint schedule premises and also plaintiffs, who claims to be landlord after the death of A.M.Ramaiah. Further, the lease also binds this defendant. Therefore, the provisions of Karnataka Rent Control Act applies. The plaintiffs are not entitled to take any action to take possession of the premises from this defendant dehors the provision of Karnataka Rent Control Act. Further, the suit is bad 36 O.S.No.4230/1986 in law for not impleading M/s.Balaji Traders, the tenant of premises. No cause of action accrues to plaintiff to file the suit.
13. Admittedly A.M.Ramaiah, father of plaintiffs inherited the premises No.29/26 situated at J.C.Road, Bangalore. The father of plaintiffs i.e., A.M.Ramaiah leased main building and other portion to M/s.Balaji Traders, the partnership firm having partners i.e., plaintiff No.1 and defendant No.1 as per Ex.P.2 and Ex.P.3. After taking the property on lease, alteration, modification, improvements, additions have been made by lessee and the property has been sub-let to defendant Nos.2 and 3. It is contended by defendant No.2 that he took premises in possession under the bonafide belief that 1st defendant had authority to lease the premises. Te defendant No.3 contended that the Lease Deed executed by father of plaintiff, A.M.Ramaiah in favour of defendant No.1 is in accordance with law 37 O.S.No.4230/1986 and binds the landlord of plaint schedule property including plaintiffs and defendant No.1, further also bind by the lease made in favour of defendant No.3. Therefore, the provisions of Karnataka Rent Control Act applies. On going through the available material on record, this Court finds that defendant Nos.2 and 3 claims to be sub-lessee of portion of schedule property under the original lessee i.e., M/s.Balaji Traders. The plaintiffs filed present suit on 16/10/1986 praying for possession, past and future mesne profits in respect of the schedule property. The defendant No.2 vacated the portion of the property taken on sub-lessee from defendant No.1 at the end of December, 1986. Further, the defendant No.2 has deposited rent of Rs.62,419/- for the period from January, 1986 to December, 1986. The plaintiff No.1 by filing applications claimed deposited rent amount in the Court. On 18/01/2001 an order has been passed for making payment of amount 38 O.S.No.4230/1986 deposited in favour of the plaintiff. Accordingly, on 01/02/2001 plaintiff No.1 received the amount. Thereafter, plaintiff filed memo on 13/11/2002 stating that he is not pressing the suit against defendant Nos.2 and 3. Accordingly, the Court passed an order as suit against defendant Nos.2 and 3 dismissed. It is the defendant No.3, who took the contention that suit is not maintainable in view of provisions of Karnataka Rent Control Act. Since the suit against defendant No.3 is dismissed as not pressed, issue regarding maintainability of suit in view of Karnataka Rent Control Act does not survive for consideration. Further, the defendant No.2 contended that he has deposited the rent amount into the Court and vacated the premises taken on sub-lease. As such, there is no subsisting cause of action against defendant No.2. In respect of defendant No.2 also plaintiff got dismissed the suit as per order dated 13/11/2002. When suit against 39 O.S.No.4230/1986 defendant No.2 is dismissed as not pressed, the issue regarding subsisting cause of action against defendant No.2 does not survive for consideration. It is contended that suit is bad for non-joiner of necessary parties. As per the case of defendant No.3, A.M.Ramaiah leased the property to M/s.Balaji Traders, represented by its partners plaintiff No.1 and defendant No.1. M/s.Balaji Traders is necessary party.
14. On going through the available materials on record, it discloses that plaintiff No.1 and defendant No.1 are partners of M/s.Balaji Traders. The schedule property taken on lease by M/s.Balaji Traders. The plaintiff No.1 filed O.S.No.1299/1982 for dissolution of partnership firm and for accounts. The suit came to be decreed on 16/04/1994 declaring that partnership firm Balaji Traders shall be deemed to have been dissolved with effect from 29/07/1982. The defendant No.1, who is one of the 40 O.S.No.4230/1986 partner of M/s.Balaji Traders has been appointed as a receiver in the said suit for the purpose of maintaining the accounts of the firm. Further, during final decree proceedings bearing No.FDP No.6/1995, a Court Commissioner has been appointed for settling the assets and liabilities. In the said proceedings, as per order of the Court, the receiver handedover the property taken on lease in the name of Balaji Traders to the sons of A.M.Ramaiah. The present suit is filed on 16/101/986. The partnership firm i.e., Balaji Traders dissolved with effect from 19/07/1982. In view of this, the partnership firm i.e., Balaji Traders is not in existence as on the date of filing of the present suit. Therefore, the Balaji Traders is not necessary or proper party to this suit. Therefore, for these reasons, this Court answers issue Nos.1 and 2 and Addl.Issue No.1 dated 31/05/1995 in the Negative.
41 O.S.No.4230/1986
15. ADDL.ISSUE DATED 01/06/2005: The defendant No.1 in the written statement contended that plaintiffs have claimed joint relief in the suit. The plaintiff No.3 died on 28/07/1995. His legal representatives have not come on record, therefore the entire suit abates. On going through the available materials on record, it reveals that initially plaintiff Nos.1 to 3 have filed the suit seeking the delivery of possession of the schedule property bearing Corporation No.26, 26/1, 26/2, New No.32 (old No.29 and 26) comprising ground and first floor of property No.26, ground and second floor of property No.26/1 and first floor in property No.32, originally leased and in occupation of M/s.Balaji Traders and now in possession of defendant Nos.1 to
3.Prior to filing of this suit, plaintiff No.1, A.R.Munichinnappa filed O.S.1299/1982 for the relief of dissolution of partnership firm. The suit came to be disposed on 16/04/1994. After disposal 42 O.S.No.4230/1986 of the suit, plaintiff No.1 filed FDP No.6/1995. In the said final decree proceedings, plaintiff Nos.1 to 3 filed applications for handing over possession of their shares allotted in the partition dated 19/04/1974.As per the order of the Court in final decree proceedings, plaintiff Nos.2 and 3 took possession of their share. The plaintiff No.1 has not taken possession of his share of the property completely. On 18/04/1998, an order has been passed in FDP. The claim of plaintiff No.1 as to his share i.e., old building inclusive of entire vacant area lying towards north-east, west and south and only northern vacant portion, his brother Lokanath and himself have right to use the passage in common and rest of it having exclusively fallen to his share and the entire portion is not handedover to him as per palupatti, it is ordered that remedy available to the parties for possession of the property is only as per lease deed and not in this final proceedings and 43 O.S.No.4230/1986 this Court cannot decide the boundaries of each sharer in the premises in this proceedings. Further, the Court passed judgment in FDP on 28/06/1991.
16. In the present case, the plaintiff Nos.1 to 3 have jointly filed the suit for possession and mesne profits. During pendency of the suit, on 06/01/1999, this Court passed an order of dismissal of the suit as not maintainable. Against this order, plaintiff No.1, A.R.Munichinnappa filed RFA No.109/2000 arraying plaintiff No.2 as respondent No.4 and LRs of plaintiff No.3 as R.5(a), (b) and (c). The appeal came to be allowed on 20/07/2002 and matter is remanded for fresh disposal in accordance with law after giving opportunity to both the parties. After remand, the plaintiff No.1 filed I.A under Order I Rule 3 of Code of Civil Procedure on 10/02/20144, which came to be allowed on 01/06/2005. The LRs of plaintiff No.3 are ordered to be brought on record as defendant Nos.4,5 and 6. In view of bringing the 44 O.S.No.4230/1986 LRs of plaintiff No.3, the additional issue in this regard will not survive. Therefore, this issue is answered in the Negative.
17. ISSUE NOs.3, 4 & ADDL.ISSUE DATED 06/09/2005 : These issues are inter-connected and to avoid repetition of discussion, they are taken up jointly for discussion and consideration.
It is contended by the plaintiff that during the lifetime of his father A.M.Ramaiah, a partition was effected in respect of ancestral properties including schedule properties as per panchyath palupatti dated 19/04/1974. Prior to partition, schedule property was leased out to Balaji Traders, a partnership firm consisting of defendant No.1 and plaintiff No.1. The plaintiff No.1 being partner of M/s.Balaji Traders filed O.S.No.1299/1982 for dissolution of partnership firm and accounts. During the pendency of the suit, defendant No.1 has been appointed as Court receiver for the purpose of 45 O.S.No.4230/1986 maintaining accounts of the firm. The suit came to be decreed on 16/04/1994. In pursuance of the decree, plaintiff No.1 filed FDP No.6/1995. In the FDP proceedings, Court appointed Commissioner for taking the assets and liabilities of the partnership firm and defendant No.1 i.e., receiver has been directed to assist the Court Commissioner for taking accounts and liabilities. During the pendency of the final decree proceedings, plaintiff Nos.2 and 3 filed application for the delivery of the possession of their share as per palupatti. The defendant No.1 as per the orders of the Court, delivered the possession to plaintiff Nos.2 and 3. The plaintiff No.1 also filed application for delivery of possession of his share, but only possession of main building is given by depositing 19 keys. The defendant No.1 has not delivered the possession of out house. The defendant No.1 is liable to deliver the possession of out house portion i.e., schedule B property. On the 46 O.S.No.4230/1986 otherhand, defendant No.1 contended that during the pendency of O.S.No.1299/1982, he was appointed as receiver by the Court. Since the date of order, his possession over the schedule property is on behalf of the Court, not in his individual capacity. Even after passing the preliminary decree in O.S.No.1299/1982, he continued as receiver as per the direction of the Court to assist the Court Commissioner. Further, during pendency of the final decree proceedings as per the order of the Court, has delivered the possession of records to the Commissioner and also delivered possession of respective portion of the plaint schedule property to plaintiff No.3. As per the order dated 20/10/1997, plaintiff No.1 did not take possession from him, as such he deposited keys into the Court.
Subsequently, plaintiff No.1 took the keys from the Court. Another brother of plaintiff No.1 took possession of his share of the property as per the 47 O.S.No.4230/1986 palupatti through his legal heirs. The defendant No.1 delivered possession of the schedule property to each of the sharer as per the Court order. Therefore, the question of unauthorized occupation of the schedule premises does not arise and also defendant No.1 is not liable to pay mesne profits passed in future. The defendant Nos.4 to 6 contended that schedule property has been divided among 3 sons of A.M.Ramaiah as per palupatti. In the said partition, main building of schedule property allotted to plaintiff, as schedule property was given on lease to M/s.Balaji Traders in which plaintiff No.1 and defendant No.1 are partners, no physical possession was given. However, pursuant to decree in O.S.No.1299/1982, FDP No.6/1995 is filed, a Court Commissioner was appointed for taking accounts of the firm and in final decree Court directed to deliver all the possession of the property to respective sharers. Accordingly, Lokanath took possession of 48 O.S.No.4230/1986 his share demarking as "MNOP" in palupatti. Thereafter, they being LRs of Lokanath, have got their names entered in the revenue records. In view of handing over possession by the defendant No.1, the present suit is not maintainable. As earlier mentioned in this case, plaintiff No.1 and his power of attorney holder are examined as PW-1 and PW-2. The defendant No.1 examined as DW-1. Neither plaintiff No.2 nor during the lifetime of Lokanath or subsequent to him, his LRs defendant Nos.4 to 6 have not entered into witness box and given evidence. In order to ascertain the claim of the plaintiff, it is just and necessary to consider the partition deed and lease deed.
18. As earlier mentioned, there is no dispute among parties that schedule property was the ancestral property of father of plaintiffs. It is also not in dispute that schedule property has been given to M/s.Balaji Traders, a partnership firm consisting 49 O.S.No.4230/1986 of plaintiff, A.R.Munichinnappa and defendant No.1, Chandrashekar. In this case, certified copy of Lease Deed and Partition Deed (Ex.P.2 and Ex.P.15) are produced. Even prior to lease deed (Ex.P.2), the property was given on lease to M/s.Balaji Traders and Ex.P.2 is continuing one.
Clause II of Lease Deed speaks as the lessor has already leased the main building and some other portions to the lessee and the lessee has already effected changes and the improvements on the premises to suit their business conveniences and now this Deed is come into being the original Deed is deemed to be cancelled and to be marked.
Clause III speaks as the lessee is at liberty to make at his own cost any alterations, additions or improvements to suit their own convenience in all or any of the portions of the 50 O.S.No.4230/1986 premises. The lessor is entitled only to the rent at Rs.1,000/- per month.
19. On perusal of Partition Deed (Ex.P.15), it reveals that partition has been effected between A.M.Ramaiah and his sons A.R.Munichinappa, A.R.Srinivas and A.R.Lokanath in respect of family properties including schedule property.
The property allotted to the share of A.R.Munichinnappa :
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The property allotted to the share of A.R.Srinivas :
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The property allotted to the share of A.R.Lokanath :
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20. As earlier mentioned, plaintiff No.1 filed O.S.No.1299/1982 for dissolution of partnership of M/s.Balaji Traders and accounts. The suit came to be decreed on 16/04/1994. During the pendency of the suit, defendant No.1, who is one of the partner of M/s.Balaji Traders has been appointed as receiver as per the order dated 07/10/1987 (Ex.D.8). The defendant No.1 continued to act as receiver till 53 O.S.No.4230/1986 conclusion of final decree proceedings on 29/06/1998 (Ex.D.5). During the pendency of final decree proceedings bearing FDP No.6/1995, legal representatives of A.R.Lokanath filed an application seeking possession of their share in the schedule properties. The Court passed an order on 09/08/1986 directing the defendant No.1/receiver to handover possession of the newly constructed northern block bearing No.26/1 forming part of former No.29/26, J.C.Road, Bengaluru as per the palupatti (Ex.D.3). Accordingly, defendant No.1 filed memo dated 13/08/1996 (Ex.D.9) and memo dated 25/07/1997 (Ex.D.10) reporting compliance of the order. The LRs of A.R.Lokanath i.e., present defendant Nos.4 to 6 filed delivery report on 12/08/1996 (Ex.D.11).
21. On going through documents Ex.D.9 to Ex.D.11, it reveals that as per memo, defendant No.1/receiver delivered possession of newly 54 O.S.No.4230/1986 constructed eastern block now bearing No.26/1, J.C.Road, Bengaluru as per memo dated 13/08/1996 and as per memo dated 25/07/1997 defendant No.1 delivered possession of the eastern portion consisting of common lavatory, an out house and passage shown as 'MNOP' in the sketch annexed to the partition deed. The LRs of the A.R.Lokanath filed delivery report (Ex.P.1) stating that they have taken possession of newly constructed northern block, now bearing No.26/1, J.C.Road, Bengaluru, which is portion allotted to the share of A.R.Lokanath. Further, it is stated that eastern portion consisting of common lavatories remain in possession of the receiver and the same may be delivered after sale of moveables.
22. On perusal of ordersheet in FDP (Ex.D.5), it reveals that on 20/10/1997, final decree Court passed an order on application filed by the plaintiffs, A.R.Munichinnappa directing the defendant 55 O.S.No.4230/1986 No.1/receiver to handover the possession of the share of petitioners as per palupatti by keeping two rooms for use of commissioner. The plaintiff No.1 received 19 keys on 26/03/1998 kept by defendant No.1 in the Court. Thereafter, on 26/03/1998 filed another application seeking direction to defendant No.1 to handover the keys of the remaining portion of the premises bearing No.26 (former No.29/26) comprising of an out house having 5 rooms bearing room Nos.12 to 16 and room No.11 situated in the main building. The final decree Court passed an order on 18/04/1998 holding that as far as premises is concerned, there is a lease deed and also fresh agreement. The remedy available to parties for possession of the property is only under the lease deed and not in this final decree proceedings and this Court cannot decide the boundaries of each sharers of the premises in this proceedings. Accordingly, petition came to be dismissed. 56 O.S.No.4230/1986
23. On considering the documentary evidence placed on record, this Court finds that partition deed entered into between A.M.Ramaiah and his three sons, a sketch is annexed. However, in the certified copy of partition deed (Ex.P.15), no such sketch has been produced. The defendant No.1 produced a sketch (Ex.D.19), which is not the sketch annexed to partition deed. Further, as per partition deed, plaintiff A.R.Munichinnappa and his brother A.R.Lokanath were given right to access on the western side entry of Balaji Traders main building and northern and eastern side vacant area exclusively belongs to A.R.Munichinnappa. However, right has been reserved to A.R.Lokanath to use north side vacant area alongwith Munichinnappa.
24. The defendant No.1 produced rough sketch (Ex.D.19). On considering the partition deed, in the light of this sketch, it can be said that northern side 57 O.S.No.4230/1986 of the main building and north-east side was given to the share of A.R.Lokanath reserving the right to use open yard on western side. Further, plaintiff A.R.Munichinnappa was given main building and north side open area and back of north-east corner i.e., open yard and out house towards his share.
25. The share of the property allotted to A.R.Munichinnappa and A.R.Lokanath as per the partition deed, is not in conformity with the sketch (Ex.D.19). As per the sketch, beyond open area on northern and eastern side of main building has been shown as share of A.R.Lokanath and main building has been shown as the share of A.R.Munichinnappa. On going through the evidence of PW-2, in the evidence of PW-2 states that after the death of his brother A.R.Lokanath, his LRs have filed an application claiming possession of 'MNOP' area as per palupatti. Further, as per the Court direction, they received possession of northern portion of the 58 O.S.No.4230/1986 property through Court receiver. PW-2 denied the suggestion that LRs of Lokanath have received possession of out house through Court. Even the defendant No.1 filed a memo as per Ex.D.9 and Ex.D.10. But the delivery report filed by the LRs of Lokanath reveals that they received possession of newly constructed northern block now bearing No.26/1, which is the portion allotted to the share of A.R.Lokanath and the eastern portion consisting of common lavatories are with defendant No.1/receiver.
26. The plaintiff subsequent to filing of suit, got amended the plaint by inserting the schedule 'B' property, which forms part of property bearing No.26 situated on the eastern side of the main building. Initially A.R.Munichinnappa, A.R.Loakanath and A.R.Srinivas jointly filed the suit in respect of the premises bearing City Corporation No.26, 26/1, 26/2 and new No.32 (old No.29 and 26) comprising of ground, first floor of No.26, ground, first floor of 59 O.S.No.4230/1986 No.26/1 and first floor in No.32(26/2), originally leased and in occupation of M/s.Balaji Traders and now in occupation of defendant Nos.1 to 3. During pendency of the suit filed by A.R.Munichinnappa i.e., O.S.No.1299/1982 against defendant No.1 for dissolution of partnership firm, this suit has been filed. Further during pendency of the final decree proceedings in pursuance of the preliminary decree passed in O.S.No.1299/1982 i.e., FDP No.6/1995, LRs of A.R.Lokanath and plaintiff A.R.Munichinnappa filed application for delivery and possession of share of property by LRs of A.R.Lokanath, they didn't join A.R.Munichinnappa in prosecuting this case after remand in RFA No.109/2000. The plaintiff No.2 remained unrepresented and LRs of plaintiff No.3 i.e., A.R.Lokanath are transposed as defendant Nos.4,5 and 6. The LRs of A.R.Lokanath i.e., defendant Nos.4 to 6 by filing written statement, contended that 60 O.S.No.4230/1986 defendant No.1 as a receiver in O.S.No.1299/1982 has delivered the possession of the share of the properties as per the orders of the Court and they have taken possession of the property demarked as 'MNOP'. Therefore, the suit is not maintainable. Except filing the written statement, the defendant Nos.4 to 6 have not entered into witness box and produced any documents. It is only the plaintiff No.1 and defendant No.1, who have produced oral and documentary evidence. The plaintiff claims hat he has not received the possession of out house portion situated beyond open yard on eastern side of main building. Further, plaintiffs sought for mesne profits. In view of this, the contention of defendant Nos.4 to 6 cannot be accepted.
27. The plaintiff has taken possession of main building by receiving 19 keys from defendant No.1. However, plaintiff has not received vacant possession of out house situated on the eastern side of main 61 O.S.No.4230/1986 building. As per the partition, eastern side of the main building is allotted to plaintiff, A.R.Munichinnappa. The right of entry from western side of the main building is given to A.R.Lokanath and A.R.Munichinnappa as per the partition. However, eastern portion of the main building and the main building is given to the share of A.R.Munichinnappa as per partition. The defendant No.1 as a receiver appointed by the Court holds the possession of the main building and other portion situated on the East, North and South, has delivered possession to the sharers as per the partition deed, but has not given complete area allotted to the plaintiffs. Even the defendant claims that he has handedover 'MNOP' area as per the sketch (Ex.D.19), but the LRs of the A.R.Lokanath i.e., defendant Nos.4 to 6 contends that defendant No.1 delivered possession of northern portion and even lavatory situated on the eastern side is not given. The 62 O.S.No.4230/1986 possession of eastern portion is with defendant No.1. Absolutely there is no material on record to consider the contention of the defendant No.1 as to he has handedover possession of the property allotted to the share of the plaintiff as per palupatti cannot be accepted.
28. The plaintiffs sought for past and future mesne profits contending that defendant No.1 hold possession of the property unauthorisedly, therefore he is liable to pay damages of past and future. The father of plaintiffs leased the schedule property to M/s.Balaji Traders, a partnership firm consisting of plaintiff No.1 and defendant No.1. During the subsistence of lease, father of plaintiffs effected partition in respect of joint family properties including the schedule property among himself and his three children. Thereafter, plaintiff No.1 i.e., A.R.Munichinnappa, being partner of M/s.Balaji Traders filed a suit in O.S.No.1299/1982 for 63 O.S.No.4230/1986 dissolution of partnership. During the pendency of the suit, defendant No.1 i.e., another partner of Balaji Traders has been appointed as a receiver. The defendant No.1 sub-let portion of schedule property to defendant Nos.2 and 3. After filing of the present suit, sub-lessee deposited the rent amount and also vacated the schedule premises. In view of this, plaintiff No.1 by filing memo, got dismissed the suit against defendant Nos.2 and 3 as per the order dated 13/11/2002. Prior to that, as per order dated 18/01/2001, he received rent amount deposited. The plaintiff No.1 during the pendency of FDP No.6/1995, filed an application praying for grant of Rs.60,000/- per month as defendant No.1 is in possession of portion of the property. The claim of plaintiff came to be rejected as per the order dated 11/03/1983 in FDP. After appointing defendant No.1 as a receiver, position of defendant No.1 become a custodia legis. Further, defendant No.1 as 64 O.S.No.4230/1986 per direction of the Court in FDP, discharged duty of delivery of possession of portion of the schedule property allotted to the shares of sons of A.M.Ramaiah. After taking delivery of possession, the respective sharers including plaintiffs are in possession of the property received from defendant No.1. Therefore, the possession of defendant No.1 in respect of the schedule property as per the Court order as a receiver cannot be termed as an unauthorized or illegal.
29. As earlier stated in a partition, plaintiff has been allotted main building open area on eastern and southern side including out house area on the eastern side. The defendant No.1 has not delivered possession of the out house portion i.e., schedule 'B' property to plaintiffs. Even the Court in the final decree proceedings passed an order on 18/04/1998 held that it is clear that in respect of premises, there is lease deed and also fresh agreement, the remedy 65 O.S.No.4230/1986 available to parties for possession of the property is only under the lease deed and not in this final proceedings and this Court cannot decide the boundaries of each sharer in the premises in the proceedings. The order passed in FDP clearly goes to show that question of delivery of possession of schedule property to the sharers as per the partition deed is not decided finally. Further, during pendency of this suit also, an order has passed n 06/01/1999 dismissing the suit as not maintainable in view of possession has been already handedover to respective sharers in FDP No.6/1995. However, dismissal order has been set aside in RFA No.109/2000 dated 20/07/2002 and matter was remanding holding that apart from question of ejectment in the suit, there is a relief of mesne profits also. As far as mesne profits are concerned, this Court finds that possession held by defendant No.1 is not illegal or unauthorized, but defendant 66 O.S.No.4230/1986 No.1 held possession as per the orders of the Court. Therefore, the plaintiff cannot claim mesne profits. Therefore, for these reasons, this Court answers issue No.3 in Partly Affirmative and issue No.4 and Addl.Issue dated 06/09/2005 in the Negative.
30. ISSUE NO.5: In the result, this Court proceeds to pass the following:
ORDER Suit decreed in part.
No costs.
The defendants are directed to handover the possession of the schedule 'B' property to plaintiff.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her and corrected, revised, signed and then pronounced by me in the open Court on this the 21st day of March, 2020.) (RAVINDRA. M. JOSHI) XL Addl. City Civil & Sessions judge, Bengaluru.
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67 O.S.No.4230/1986
ANNEXURE
WITNESSES EXAMINED ON BEHALF OF
PLAINTIFFS:
PW.1 - Ravi Kumar
PW.2 - A.R.Munichinnappa
DOCUMENTS PRODUCED ON BEHALF OF
PLAINTIFF:
Ex.P.1 General Power of Attorney
Ex.P.2 Certified copy Lease Deed in
O.S.1299/1982
Ex.P.3 Certified copy of partnership deed
Ex.P.4 Certified copy of Decree in
O.S.1299/1982
Ex.P.5 Gazette notification
Ex.P.5(a) Publication regarding Balaji Traders Ex.P.6 Letter written by 1st defendant Ex.P.7 Paper publication of public notice Ex.P.8 to Assessment extract of Bengaluru City Ex.P.10 Corporation with respect to property Nos.26,26/1 and 29/F and 32. Ex.P.11 Notice of termination of tenancy Ex.P.12 & Copies of legal notices issued to 2nd Ex.P.13 defendant Ex.P.14 Copy of agreement between 1st and 2nd defendants Ex.P.15 Certified copy of deposition of A.L.Raghvendra in O.S.1299/1982 Ex.P.16 Certified copy of ordersheet in FDP No.6/1995 Ex.P.17 Certified copy of judgment dated 20/07/2002 in RFA No.109/2000 68 O.S.No.4230/1986 Ex.P.18 Certified copy of special notice dated 04/10/1979 issued by Corporation Ex.P.19 & Certified copies of demand register Ex.P.20 extracts of property Nos.26 & 26/1 WITNESSES EXAMINED ON BEHALF OF DEFENDANT:
DW.1 - T.Chandrashekar DOCUMENTS PRODUCED ON BEHALF OF DEFENDANTS :
Ex.D.1 Certified copy of plaint in
O.S.1299/1982
Ex.D.2 Certified copy of written statement in
O.S.1299/1982
Ex.D.3 Certified copy of I.A filed in
O.S.No.21/1982 dated 19/04/1982
Ex.D.4 Certified copy of the judgment in
O.S.1299/1982
Ex.D.5 Certified copy of judgment in FDP
No.6/1995
Ex.D.6 Certified copy of ordersheet in FDP
No.6/1995 from the date 11/04/1997
to 19/12/1998
Ex.D.6 Orders dated 20/10/1997,
23/01/1998, 17/03/1998,
26/03/1998, 18/04/1998 and
02/11/1998.
Ex.D.7 Certified copy of ordersheet in
O.S.No.1299/1982
Ex.D.8 Photocopy of orders on I.A. No.3
Ex.D.9 Certified copy of memo dated
13/08/1996 in FDP No.6/1995
Ex.D.10 Certified copy of memo dated
69 O.S.No.4230/1986
25/07/1997 in FDP No.6/1995
zEx.D.11 Certified copy of delivery receipt dated 12/08/1996 Ex.D.12 Certified copy of Commissioner's report in FDP No.6/1995 Ex.D.13 Certified copy of objections to IA in O.S.1299/1982 Ex.D.14 Certified copy of copy application alongwith endorsement issued by Court.
Ex.D.15 Photocopy of judgment in
O.S.10529/1983
Ex.D.16 Certified copy of judgment dated
14/06/1990 in RFA 177/1987
Ex.D.17 Certified copy of order dated
09/08/1996 in FDP No.6/1995
Ex.D.18 Certified copy of deposition of PW-1 in
O.S.No.1299/1982
Ex.D.19 Rough sketch of suit properties
Ex.D.20 Agreement dated 09/05/1979
(RAVINDRA. M. JOSHI)
XL Addl. City Civil & Sessions judge,
Bengaluru.
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70 O.S.No.4230/1986