Bangalore District Court
Smt.Anasuya vs Sri.J.Venkatesh on 1 September, 2020
IN THE COURT OF THE XX ADDL. CITY CIVIL &
SESSIONS JUDGE(CCH-32), BENGALURU CITY
Dated this the 1st day of September, 2020
Present:
Sri.Ningouda B.Patil, B.Sc., LL.M.,
XX Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.8236/2015
Plaintiff: Smt.Anasuya,
W/o.Sri.Pravardhan Rao,
Aged about 60 years,
Residing at No.153/33,
1st Main Road, Maruthi
Extension, Srirampuram,
Bengaluru-560 021.
(By Sri.A.C.Patil, Advocate.)
/VS/
Defendant: Sri.J.Venkatesh,
S/o.Late Janardhan,
Aged about 49 years,
Residing at No.5/46,
Pipeline Road,
Chowdeshwari Nagar,
Laggere, Bengaluru.
(By Sri.K.S.Chandrahasa,
Advocate.)
Date of Institution
of the suit: 28.09.2015
Nature of suit : Declaration &
Injunction suit.
Date of commencement of
recording of evidence : 23.06.2017
2 O.S.No.8236/2015
Date on which Judgment
pronounced : 01.09.2020
Total Duration : Years Months Days
04 11 03
J U DG ME N T
Plaintiff instituted this suit against the defendant
for the reliefs of declaration, eviction, permanent
injunction and also for damages in respect of subject
matter of the suit.
2. The subject matter of the suit (hereinafter called
as 'schedule property') is all that piece and parcel of
property bearing old gramatana Khatha No.46, house
No.5, new No.5/46, PID No.073-W0278-117 measuring
30 ft. x 50 ft., comprising ground floor and first floor
situated at Pipeline Road, Chowdeshwari Nagara,
Laggere, Bengaluru-560058. Plaintiff described the
schedule property with boundaries in the schedule of the
plaint.
3. The case of the plaintiff is that, she is the
absolute owner of schedule property; she purchased the
same from one P.Babu, S/o. Poongavanam, through
registered sale deed dated 24.3.2003 for a consideration
of Rs.2,09,000/-; thus, the schedule property is her self
acquired property; the said property was in the limits of
Laggere village, when it was purchased by the plaintiff
and later fallen to the limits of BBMP; at the time of
purchase of the schedule property, an old residential
3 O.S.No.8236/2015
house was existing therein; subsequently after
purchasing the schedule property, plaintiff demolished
the old house and constructed new building comprising
ground and first floor residential RCC roofed house
consisting of hall, kitchen, bed room, pooja room, bath
room, lavatory with electric and water connections; the
building was constructed in and about 800 sq. ft. in the
schedule property; Khatha of the schedule property is
standing in the name of plaintiff; she is paying property
tax on schedule property to the BBMP; thus, plaintiff
pleaded that she is the absolute owner of schedule
property.
4. Plaintiff pleaded that, she let out ground floor
portion on rent to a tenant by name Smt.Nagarathna vide
lease agreement dated 8.2.2006; she also let out first
floor portion of the schedule property on rent to one
Sri.N.Prabhu vide lease agreement dated 1.6.2007; in the
year 2008 tenant Nagarathna vacated the ground floor
portion; hence, it was vacant in the year 2008; by that
time defendant approached plaintiff by saying that, he is
her far relative and requested her to let out the ground
floor portion of schedule property to him on rental basis
as he was in urgent need of accommodation; therefore,
on good faith and on humanity basis she let out the
ground floor portion to the defendant on rental basis for
Rs.6,000/- p.m. initially for a period of 11 months on an
oral lease agreement; the tenancy of defendant was
commenced on 1.8.2008.
4 O.S.No.8236/2015
5. Plaintiff further pleaded that, she is an innocent
and uneducated lady not having worldly knowledge; she
thought that defendant was a good person and he would
pay rents regularly; but he paid rents only upto
30.3.2009; thereafter, he not paid the rents; hence, she
issued legal notice dated 6.12.2010 terminating the
tenancy of defendant; but defendant not received the
said notice; therefore, she personally served the copy of
the legal notice to him; however, defendant not replied
the said notice and also not vacated the scheduled
property; therefore, plaintiff constrained to file ejectment
suit S.C.No.1474/2011 before the court of XI Addl. Small
Causes Judge, Bengaluru.
6. Defendant appeared in the said case and
defended the suit by filing written statement denying the
jural relationship of landlord and tenant; he took a
different stand stating that he is son of brother of
husband of plaintiff and falsely claimed that himself and
husband of plaintiff purchased the schedule property in
the name of plaintiff; plaintiff and her husband treated
him as of their son; he resided with them at property
bearing No.153/33, Ist Main road, Maruthi Extension,
Srirampuram, Bengaluru; defendant in the said suit
further contended that, because of difference of opinions
arose between his wife and plaintiff, the husband of
plaintiff made schedule property as an alternative
arrangement for the residence of defendant and his
family; he in the said suit further also alleged that,
plaintiff and her husband gifted schedule property to him
5 O.S.No.8236/2015
by executing gift deed dated 9.9.2008; but in fact the
story of defendant was totally false; defendant used to
quarrel with plaintiff whenever she asked him to vacate
the schedule property; she also lodged police complaint
against defendant.
7. Plaintiff further also pleaded that, the Hon'ble
Addl. Small Causes Court after recording the evidence of
both side and upon hearing the both side dismissed the
suit on 5.12.2013 holding that she failed in establishing
the jural relationship; in the same time the said court
further also rightly held that, the gift deed dated
9.9.2008 not confers any right to defendant over
schedule property; plaintiff challenged the decree of the
Small causes court before the Hon'ble High Court of
Karnataka by filing CRP No.111/2014; the Hon'ble High
Court of Karnataka dismissed the said revision on
6.8.2015; however, the Hon'ble High Court held that the
Small Causes Court was not having jurisdiction to
entertain the suit; liberty given to the plaintiff to
establish her rights over schedule property including
seeking of possession and etc. by filing the suit in a civil
court in accordance with law; hence, she constrained
filed this suit against defendant.
8. Plaintiff further also pleaded that, the tenant
who was in occupation of first floor of schedule property
vacated; defendant taking undue advantage of situation
also occupied the first floor of schedule property; thus,
defendant is in illegal occupation of schedule property;
6 O.S.No.8236/2015
therefore, he is liable to surrender the entire possession
of schedule property; he further also liable to pay
Rs.10,000/- p.m. as damages since 1.8.2008 as he is in
illegal occupation of the schedule property; as on the
date of the suit, defendant was liable to pay
Rs.3,60,000/- to the plaintiff and further also liable to
pay future damages.
9. Plaintiff furthermore pleaded that, schedule
property is her self acquired property; defendant illegally
claiming the ownership over the schedule property on a
fictitious unregistered gift deed dated 9.9.2008; neither
she nor her husband executed the said gift deed;
defendant after filing of small cause No.1474/2011
created a false story contending that the property at
Maruthi Extension, Srirampuram, Bengaluru and the
schedule properties are the joint family properties of
himself and plaintiff; he also instituted a false partition
suit against plaintiff and her husband; defendant is
having an oblique motive that if plaintiff and her
husband dragged to the litigations, then they will fed-up
with cases and would give up the schedule property to
him, so that, he could become the owner of the schedule
property; even assuming but not admitting defendant is
her far relative, he could not claim the ownership over
the schedule property as he has neither legal nor moral
right to claim it; defendant created a fictitious and
unregistered gift deed dated 9.9.2008 by taking undue
advantage of his relation with husband of plaintiff.
7 O.S.No.8236/2015
10. Plaintiff furthermore also pleaded that, the
schedule property is her self acquired property;
defendant by misusing the illiteracy and innocence of
plaintiff created bogus unregistered gift deed dated
9.9.2008 by playing fraud; her ejectment case of plaintiff
dismissed on technical ground; defendant being an Auto
driver himself struggling in maintaining his family; under
the circumstances it is not possible for him to construct
the schedule property; defendant by taking undue
advantage of decisions of Small Causes court and High
Court attempting to sell the schedule property; he also
trying to create charge on the schedule property by
inducting third persons in the schedule property; if
defendant succeeded in his illegal activities, then plaintiff
would be put to irreparable loss and hardship and there
will be multiplicity of proceedings; therefore, for the reasons
stated above, she is before this court with the suit.
11. Plaintiff further pleaded that, the cause of
action for the suit for the first time arose on 1.8.2008
when defendant entered the schedule property as tenant
and lastly resulted on 6.8.2015 when the Hon'ble High
Court of Karnataka disposed off CRP No.111/2014 by
giving liberty to plaintiff for establishing her rights over
schedule property by filing a suit. It is further averred in
the plaint that the cause of action for the suit arose in
Bengaluru and therefore this Court has got jurisdiction
to try and entertain the suit. Plaintiff is having all kinds
of rights over the schedule property. Therefore, she
prayed to decree the suit.
8 O.S.No.8236/2015
12. This court issued the summons to the
defendant and the said summons was served on
defendant. Accordingly, defendant appeared through his
counsel and defended the suit by filing his written
statement.
13. Defendant denied the case of the plaintiff and
he contended that, suit of the plaintiff is based on false,
frivolous and vexatious allegations; plaintiff filed the suit
with an ulterior motive to harass him; plaintiff
suppressed the material facts and made misleading
statements; therefore, suit of the plaintiff is liable for
dismissal.
14. Defendant further contended that, it is false to
state he is a tenant to the schedule property; it is false
to state that, plaintiff being the owner of schedule
property leased the same to him under an oral lease
agreement; it is false to state that, the lease commenced
from 1.8.2008; it is false to state that, the schedule
property was leased to him on a rental basis of
Rs.6,000/- p.m.; it is false to state that, he paid the rents
for few months; as he not paid the rents, plaintiff
terminated his tenancy over schedule property by issuing
a notice; it is false to state that he not received the notice
and therefore, plaintiff served the notice through by
hand.
9 O.S.No.8236/2015
15. Defendant further also contended that, it is
false to state that he is in illegal occupation of schedule
property; it is false to state that plaintiff leased the
ground floor of schedule property to one Nagarathna; it is
false to state that, plaintiff also leased the first floor
portion of schedule property to one N.Prabhu; it is false
to state that, plaintiff let out the schedule property to
him on humanitarian ground; it is false to state that, he
by taking the undue advantage of situation, occupied the
first floor and ground floor of the schedule property; it is
false to state that, he is liable to surrender the
possession of the schedule property; it is false to state
that, he is also liable to pay Rs.10,000/- p.m. as
damages for his illegal occupation of schedule property
since 1.8.2008; it is false to state that, as on the date of
the suit, he is liable to pay Rs.3,60,000/- as damages; it
is false to state that he is also liable to pay future
damages.
16. Defendant further also contended that, it is
false to state that, schedule property is a self acquired
property of plaintiff; it is false to state that the gift deed
dated 9.9.2008 is an illegal and fictitious document; it is
false to state that neither plaintiff nor her husband
executed the said gift deed; it is false to state that, after
dismissal of case S.C.No.1474/2011, he invented a story
and filed a suit for partition against herself and her
husband; it is false to state that, he dragged plaintiff and
her husband to the litigation and thereby put mental
pressure on them; it is false to state that he neither
10 O.S.No.8236/2015
having moral rights nor legal rights to continue his
possession over the schedule property on the basis of
bogus gift deed dated 9.9.2008; it is false to state that,
he misused the illiteracy and innocence of plaintiff; it is
false to state that, he created gift deed dated 9.9.2008 by
playing fraud on plaintiff.
17. Defendant submitted that, plaintiff is his aunt;
his father and husband of plaintiff were the brothers; he
and the husband of plaintiff purchased the schedule
property in the name of plaintiff; he utilized his savings
and hard earned money in purchasing the schedule
property; he also raised hand loans from relatives and
further also sold the gold jewelries of his wife for
purchasing and developing the schedule property; he is
residing in the schedule property along with his family
peacefully; thus, he is in peaceful possession and
enjoyment of schedule property without any hindrance.
18. Defendant further submitted that, plaintiff and
her husband on 9.9.2008 jointly executed the gift deed in
his favour and thereby gifted the schedule property to
him; however, plaintiff approached the court with a
cooked and concocted story; she also filed a suit
S.C.No.1474/2011 against him before the court of XI
Addl. Small Causes Judge, Bengaluru; the said case
came to be dismissed on 5.12.2013; aggrieved by the
said dismissal order/judgment and decree, plaintiff filed
CRP No.111/2014 before Hon'ble High Court of
Karnataka, but the said revision was also dismissed on
11 O.S.No.8236/2015
6.8.2015; it is false to state that, the Hon'ble High Court
of Karnataka given liberty to plaintiff to file a suit against
him for establishment of her rights and to seek
possession of the schedule property in accordance with
law.
19. Defendant further submitted that, himself and
plaintiff are the close relatives; plaintiff is his aunt; his
paternal grandmother Ningamma acquired site bearing
No.156/33, Ist Main Road, Maruthi Extension,
Rammohanapura post, Bengaluru along with some other
properties by raising loans; his father died in the year
1971; the husband of plaintiff was in jail from the year
1972 to 1983 in a criminal case; his grandmother
Ningamma died in the year 1976 leaving behind his
father and the husband of plaintiff as her L.Rs.; he and
his paternal mother in law Savithramma with the
financial help of their relatives and also by utilising their
savings they repaid the debts of Ningamma; after
repayment of the loan of one Ramanatha, he executed
a deed in favour of husband of plaintiff, who released
from jail on parole.
20. Defendant further also submitted that, plaintiff
and her husband were not having any issues; therefore,
they treated defendant as their lovely and affectionate
son; himself and the husband of plaintiff jointly
constructed the residential house consisting of four
floors in the property bearing No.156/33 in the year
1991-92; they are staying at the top floor of said building
12 O.S.No.8236/2015
and remaining floors have been let out on rent;
defendant and his uncle were also having some plans to
acquire some other properties; therefore, they
approached one Sri.P.Babu, S/o Poongavanama and
jointly purchased the schedule property from him in the
name of plaintiff through a registered sale deed dated
24.3.2002; after purchasing the schedule property, they
were in joint possession and enjoyment of the same;
subsequently, there were some misunderstandings
between his wife and the plaintiff; therefore, the husband
of plaintiff made an alternative arrangement; as per the
words of the husband of plaintiff, he shifted his
residence to the schedule property; thereafter he
developed the schedule property in the year 2004 by
raising loans from friends and relatives and also by
selling the gold ornaments of his wife; he let out the first
floor of the schedule property to a tenant; accordingly, he
is in peaceful possession and enjoyment of suit schedule
property.
21. Defendant further also submitted that, he
treated the husband of plaintiff as his father and he was
very obedient to the words of his uncle; he loves his
uncle and vice versa; but, as some altercations appeared
in between the mother-in-law and sister-in-law i.e. in
between his wife and the plaintiff, he shifted his
residence to the schedule property on the advise of his
uncle i.e. husband of plaintiff; thereafter on 9.9.2008
plaintiff and her husband executed gift deed in respect of
schedule property in his favour; he accepted the said gift;
13 O.S.No.8236/2015
as per the said gift deed, he acquired the absolute
ownership over schedule property and accordingly, he is
in peaceful possession, use and enjoyment of the
schedule property; his uncle i.e. husband of plaintiff also
declared before relatives, well wishers and family
members that, after his death his share in the joint
family properties should go to his affectionate son i.e. the
defendant; but, shockingly and surprisingly plaintiff
filed S.C.No.1474/2011, which was dismissed on
5.12.2013; the CRP No.111/2013 filed by her was also
dismissed on 8.6.2015; thus, the gift of the schedule
property in his favour confirmed and concluded and
became final; however, plaintiff filed this suit with cooked
and concocted stories by suppressing the above stated
facts; the intention of the plaintiff to just cause immense
loss and mental agony to him; she has no any love and
affection towards him and his wife.
22. Defendant further also contended that, there is
no cause of action for the suit and stated one is a wrong
one; the court fee paid by the plaintiff is insufficient;
plaintiff undervalued the relief claimed; suit of the
plaintiff is barred by limitation; therefore, suit of the
plaintiff is liable for dismissal. Accordingly, defendant
prayed to dismiss the suit with exemplary costs.
23. In the light of the above said rival pleadings of
the parties my learned predecessor framed the following
issues:
14 O.S.No.8236/2015
1. Whether the plaintiff proves that she is the
absolute owner of the suit schedule property
and it is her self acquired property?
2. Whether the plaintiff further proves that the
defendant is her tenant and she has let out
the ground floor to the defendant on a
monthly rent of Rs.6,000/-?
3. Whether the plaintiff has terminated the
lease by issuing a notice?
4. Whether the defendant proves that plaintiff
and her husband jointly executed Gift Deed
in respect of the suit schedule property in
his favour on 09-09-2008?
5. Whether the plaintiff is entitled for vacant
possession of the suit schedule property?
6. Whether the court fee paid is insufficient?
7. Whether the suit is barred by limitation?
8. Whether the plaintiff is entitled for the reliefs
sought for?
9. What order or decree?
24. The burden of proof of issue No.1 to 3 is on
plaintiff. In order to discharge the said burden, plaintiff
adduced oral evidence by examining herself as P.W.1 and
also produced documentary evidence marked at Ex.P.1 to
P.14.
25. Ex.P.1 is the original Sale Deed, Ex.P.2 is the
Rent receipt book, Ex.P.3 is the Legal notice along with
the postal cover, Ex.P.4 and 5 are the Form No.15,
Ex.P.6 is the three Tax paid receipts, Ex.P.7 is the
certified copy of the judgment and decree in
15 O.S.No.8236/2015
S.C.No.1474/2011, Ex.P.8 is the certified copy order
sheet in CRP No.111/2014, Ex.P.9 is the certified copy of
the order in CRP No.111/2014, Ex.P.10 is the Form B
property register, Ex.P.11 is the written statement in
S.C.No.1474/2011, Ex.P.12 is the evidence of defendant
in S.C.No.1474/2011, Ex.P.13 is the office copy of legal
notice and Ex.P.14 is the certified copy of family tree.
26. The burden of proof of issue No.4 is on
defendants and defendant in order to discharge his
burden on the said issue adduced oral evidence by
examining himself as D.W.1 and got marked the
documentary evidence at Ex.D.8 to D.32(a). He also
cross-examined P.W.1 and during cross-examination of
P.W.1, documents Ex.D.1 to D.7 are marked.
27. Ex.D.1 is the family tree, Ex.D.2 is the Gift
Deed, Ex.D.3 is the Photos, Ex.D.4 is the deposition in
S.C.No.1474/2011, Ex.D.5 to 7 are the photos, Ex.D.8 is
the certified copy of the order in Writ Petition
No.14051/2013, Ex.D.9 is the certified copy of photo of
name plate of house, Ex.D.10 is the certified copies of
photos, Ex.D.11 is the certified copy of the Order Sheet
in O.S no.3974/2012, Ex.D.12 and Ex.D.12(a) are the
Electricity bill along with payment receipt for the year
2005, Ex.D.13 and D.13(a) are the electricity bill along
with payment receipt for the year 2005, Ex.D.14 and
D.14(a) are the electricity bill along with payment receipt
for the month of November, 2005, Ex.D.15 and D.15(a)
are the electricity bill along with payment receipt for the
16 O.S.No.8236/2015
year 2010, Ex.D.16 and D.16(a) are the electricity bill
along with payment receipt for the year 2013, Ex.D.17
and D.17(a) are the electricity bill along with payment
receipt for the year 2014, Ex.D.18 and D.18(a) are the
another electricity bill along with payment receipt for the
year 2014, Ex.D.19 and D.20 are the two electricity bills
for the month of January, 2015, Ex.D.20(a) is the
payment receipt, Ex.P.21 and Ex.P.21(a) are the
electricity bill along with payment receipt for the month
of October, 2016, Ex.D.22 and D.22(a) are the electricity
bill along with payment receipt for the month of January,
2016, Ex.D.23 and D.23(a) are the electricity bill along
with payment receipt for the month of April, 2018,
Ex.D.24 and D.24(a) are the water bill along with
payment receipt, Ex.D.25 and D.25(a) are the electricity
bill along with payment receipt for the month of March,
2018, Ex.D.26 is the property tax paid receipt for the
year 2011-12, Ex.D.27 is the property tax paid receipt for
the year 2012-13, Ex.D.28 is the property tax paid
receipt for the year 2013-14, Ex.D.29 is the property tax
paid receipt for the year 2014-15, Ex.D.30 is the property
tax paid receipt for the year 2015-16, Ex.D.31 is the
property tax paid receipt for the year 2016-17, Ex.D.32 is
the property tax paid receipt for the year 2017-18,
Ex.D.32(a) is the Bank challan.
28. During the proceedings, I.A.No.I to I.A.No.VI are
filed and the same are disposed off in accordance with
law.
17 O.S.No.8236/2015
29. I carefully perused the pleadings of both parties,
oral evidence adduced and documentary evidence
produced and also perused the other records. Heard the
arguments and further also gone through the authorities
relied.
30. My answers and findings to the above issues are
as follows:
Issue No.1- In the Affirmative;
Issue No.2- In the Negative;
Issue No.3- Does not survive for consideration;
Issue No.4- In the Negative;
Issue No.5- In the Affirmative;
Issue No.6- In the Affirmative;
Issue No.7- In the Negative;
Issue No.8- Partly in the Affirmative;
Issue No.9-As per the order passed for the following:
REASONINGS
31. ISSUE NO.1: It is the case of the plaintiff is
that, she is the absolute owner of schedule property and
she let out the same to the defendant on rental basis. As
defendant not paid the rents, she terminated the tenancy
of defendant. However, defendant refused to vacate
schedule property and handover the possession of the
same to her. Therefore, she is before this court with the
suit.
18 O.S.No.8236/2015
32. Plaintiff in her plaint para No.3, 4 and 5
pleaded that, she purchased the schedule property from
one P.Babu, S/o.Poongavanam through a registered sale
deed dated 24.3.2003 for a consideration of
Rs.2,09,000/-. She further pleaded that, she constructed
a residential building in the schedule property comprising
ground floor and first floor by demolishing old house
located therein. Her name also mutated to the revenue
records of schedule property and she is paying property
tax on the schedule property to the BBMP. Therefore, she
is the absolute owner of the same.
33. Defendant denied the above said case of
plaintiff. He contended that, plaintiff is his paternal aunt
and the husband of plaintiff is his paternal uncle. He
himself and plaintiff are the joint family members and the
schedule property is their joint family property. He
contended that, along with husband of plaintiff purchased
the schedule property in the her name.
34. Plaintiff in order to prove the above said facts,
adduced oral evidence and also produced the
documentary evidence. She adduced oral evidence by
examining herself as P.W.1 and produced the
documetnary evidence at Ex.P.1, P.4, P.5, P.6, P.8 and
P.10.
35. The documentary evidence at Ex.P.1 is original
copy of registered sale deed dated 24.3.2003. The said
documentary evidence discloses that, plaintiff purchased
the schedule property from one P.Babu, S/o.
19 O.S.No.8236/2015
Poongavanam on 24.3.2003 for a consideration of
Rs.2,09,000/-. The documentary evidence under Ex.P.1
is a title deed of plaintiff to the schedule property.
Plaintiff by virtue of sale deed under Ex.P.1 acquired the
right of ownership over the schedule property.
36. The documentary evidence produced at Ex.P.4,
5, 6 and 10 are the property extract and tax paid receipts
of schedule property. BBMP officials issued the said
documents. The said documents discloses that scheduled
property is standing in the name of plaintiff. The
documentary evidence at Ex.P.4, 5, 6 and 10 are the
revenue records of schedule property. They are having
presumptive evidentiary value under the law of revenue
records as the competent authority prepared the said
documents by following the due procedure under 114 of
Karnataka Municipal Corporation Act, 1976. Therefore,
as per the provisions of Section 34 of Indian Evidence Act,
1872, the said documents are very much relevant to the
case of the plaintiff. The name of the plaintiff is entered
as owner in the said documentary evidence. Thus, the
said documentary evidence under Ex.P.4, 5, 6 and 10
discloses that, plaintiff is the owner of schedule property.
37. The one more important piece of documentary
evidence produced by the plaintiff is at Ex.P.8. The said
documentary evidence is a certified copy of order of
Hon'ble High Court of Karnataka passed in CRP
No.111/2014. Plaintiff filed the said civil revision petition
against judgment and decree dated 5.12.2013 passed in
20 O.S.No.8236/2015
SC No.1474/2011 by the learned Judge of XI Addl. Small
Causes Court, Bengaluru. In the said documentary
evidence, the Hon'ble High Court of Karnataka at para
No.14 and 17 observed that, plaintiff in order to establish
her rights ought to have institute a suit for possession
before the competent court of jurisdiction. The text of
para No.14 of the said order is as under:
"It is clear that as the issue that arises for
consideration is not merely regarding to
determination of lease by efflux of time or
issuance of notice, but a larger issue
regarding title to the property and indeed the
defendant has produced and relied upon a gift
deed in support of his claim that has been
marked in evidence, the matter does not fall
within the jurisdiction of the Small Causes
Court. The plaintiff ought to have institute a
suit for possession before the court of
competent jurisdiction and not before the
Small Causes Court. Hence, on this ground
alone the revision petition deserves to be
dismissed".
38. In the above said case, the Hon'ble High Court
of Karnataka indirectly directed the plaintiff that she in
order to have the scheduled property, ought to have
institute a suit for possession before competent court of
jurisdiction. The said observation of the Hon'ble High
Court of Karnataka implies and indicates that, plaintiff is
21 O.S.No.8236/2015
the owner of schedule property and that is why she had to
institute a suit seeking possession of the schedule property.
39. Defendant though denied that plaintiff is the
owner of the schedule property, he not disputed the
documentary evidence produced by the plaintiff at Ex.P.1,
4, 5, 6, 8 and 10. His altogether defense is himself and
husband of plaintiff purchased the schedule property in
the name of plaintiff and therefore, the said is a joint
family property of himself and family of the plaintiff. But,
he not produced any evidence in support of his said
defense.
40. Plaintiff also adduced oral evidence to prove her
case under issue No.1 by examining herself as P.W.1. She
in para No.3 to 5 of her affidavit of examination-in-chief
clearly and categorically stated that, she purchased the
schedule property on 24.3.2003 from one P.Babu, S/o
Poongavanam by paying a consideration of Rs.2,09,000/-.
She further stated that, she constructed a building in the
schedule property comprising ground floor and first floor
by demolishing the old building existing therein. She
further also stated that, BBMP being revenue authority
mutated her name to the revenue records of schedule
property.
41. The counsel for defendant cross-examined
P.W.1 and even in cross-examination plaintiff stated that
she is the owner of schedule property. She in para No.2
of page No.10 of her cross-examination stated that:
22 O.S.No.8236/2015
"I have purchased the schedule property out of
the amount given by my father. I do not
remember the year in which my father paid
money. My father died in the year 1992 or
1993. I have got document to show that, I have
purchased the schedule property out of the
amount given by my father. I have not
produced the said document before the court. It
is false to suggest that I knew that the
schedule proeprty was purchased by my
husband and defendant in my name".
Thus, the above said testimony of P.W.1 makes it
clear that defendant tried to establish a case that he along
with husband of plaintiff purchased schedule property in
the name of plaintiff and the schedule property not
purchased by plaintiff by utilizing her funds. The counsel
for defendant argued that, plaintiff being a household lady
not having the required money to purchase the schedule
property and her evidence that her father given the
amount for purchasing the schedule property is not
believable as her father died in the year 1992-93 and the
sale transaction of schedule property is of the year 2003.
42. The said argument of plaintiff is not acceptable.
Might be the father of plaintiff died in the year 1992-93,
but money paid by him remains with his daughter and
plaintiff by utilising such amount might have purchased
the schedule property. Thus, defendant though cross-
examined P.W.1 in lengthy, but failed in falsifying the case
23 O.S.No.8236/2015
of the plaintiff that, she is not the owner of the schedule
property. The oral evidence adduced by the plaintiff is in
the tune of and is in consonance with documentary
evidence produced at Exs.P.1, 4, 5, 6, 8 and 10. Thus,
plaintiff by adducing oral evidence and also by producing
the documentary evidence and also through proper
pleadings proved that, she is the absolute owner of
schedule property and the same is her self acquired
property. Therefore, my answer to Issue No.1 is in
Affirmative.
43. ISSUE NO.2: Plaintiff in her plaint para No.5
pleaded that, in the year 2008 defendant approached her
by claiming that he is far relative of her husband and he
requested for letting out schedule property on rental basis
to him as he was in urgent need of residential
accommodation. Therefore, she on a good faith and also
on humanitarian basis let out the ground floor of the
schedule property to the defendant on an oral lease
agreement initially for a period of 11 months on monthly
rent of Rs.6,000/-. She further pleaded that the tenancy
was commenced from 1.8.2008 and defendant paid rent
upto 30.3.;2009.
44. Defendant denied the said facts. He contended
that he never resided in the schedule property as a
tenant. According to his case, the schedule property is a
joint family property of himself and plaintiff and he along
with husband of plaintiff purchased the same in the name
of plaintiff. He further contended that, he by raising the
24 O.S.No.8236/2015
loans from relatives and friends and also by selling the
gold jewelries of his wife developed the schedule property.
45. Plaintiff though pleaded that she let out the
schedule property on rent to the defendant, she not
produced any reliable and relevant documentary evidence.
In fact in order to prove her case under issue No.2 she
relied the documentary evidence produced at Ex.P.2
and P.3.
46. The documentary evidence at Ex.P.2 is a rent
receipt book having 42 blank receipts, and 8 counter
receipts. Plaintiff by producing the said documentary
evidence tried to impress that, defendant paid rent for
eight months commencing from the month of August
2008 to the month of March 2009. The said eight counter
receipts, bearing only the signatures of plaintiff and they
not bearing signature of defendant. In usual course of
money transaction, the payer shall put his signature on
counter receipts for having paid of the money. In this
case no doubt the counter receipts under Ex.P.2, are in
respect of payment of rent on schedule property, but they
have been not signed by the defendant. Therefore, it
cannot be held that, defendant paid rent as per the
documentary evidence at Ex.P.2. If the counter receipts
were signed by defendant, then the matter would be
different.
25 O.S.No.8236/2015
47. The documentary evidence at Ex.P.3 is an office
copy of legal notice dated 6.12.2020, issued by the
plaintiff to the defendant intimating the termination of
tenancy. Plaintiff herself in her pleading admitted that,
the said legal notice was not served on defendant through
postal agency. The envelope in which the said notice was
sent was also produced and the same is marked as
Ex.P.3(a). The documentary evidence at Ex.P.3(a) discloses
that, the postal authorities made an endorsement stating
that, the recipient absent, which signifies that, the legal
notice dated 6.12.2020 not served on defendant.
However, plaintiff in her plaint para No.6 pleaded that,
she personally served the said notice to the defendant.
But plaintiff not produced any documentary evidence to
prove that, she personally served the notice. She could
have produced the received copy of legal notice signed by
defendant in this regard. But absolutely there is no such
document on record. Plaintiff though adduced oral
evidence by examining herself as P.W.1, but even in oral
evidence, she not stated that she served the legal notice of
termination of tenancy by personally. Therefore, there is
a doubt in respect of service of legal notice dated 6.2.2010
to the defendant. Thus it can be stated that, the evidence
led by plaintiff in order to prove that the defendant is her
tenant to the schedule property is not satisfactory.
Therefore, it can be concluded hat, plaintiff failed in
discharging burden of proof under issue No.2. When
plaintiff failed in discharging the burden of proof on issue
No.2, as per the principle of law of evidence, onus lies on
defendant to prove that, he was not a tenant to the
26 O.S.No.8236/2015
schedule property. In order to discharge the said onus,
defendant produced documentary evidence at Ex.D.4 and
relied a portion of that documentary evidence. The
documentary evidence at Ex.D.4 is a certified copy of
deposition of plaintiff in S.C.No.1474/2011. The said
deposition becomes relevant as per the provisions of
Section 33 of Indian Evidence Act, 1872 , the extracted
of which is given below:
"Section 33: Relevancy of certain evidence
for proving, in subsequent proceeding, the
truth of facts therein stated.--Evidence
given by a witness in a judicial proceeding, or
before any person authorized by law to take it,
is relevant for the purpose of proving, in a
subsequent judicial proceeding, or in a later
stage of the same judicial proceeding, the truth
of the facts which it states, when the witness is
dead or cannot be found, or is incapable of
giving evidence, or is kept out of the way by the
adverse party, or if his presence cannot be
obtained without an amount of delay or
expense which, under the circumstances of the
case, the Court considers unreasonable:
PROVIDED--
that the proceeding was between the
same parties or their representatives in
interest;
27 O.S.No.8236/2015
that the adverse party in the first
proceeding had the right and opportunity
to cross-examine;
that the questions in issue were
substantially the same in the first as in
the second proceeding".
48. The documentary evidence at Ex.D.4 is a
previous statement of plaintiff made in
S.C.No.1474/2011. Therefore, as per the above said
provision, the said document became relevant. In the
said deposition at para No.1 of page 8, plaintiff stated
that,
"ಬಬಡಗಗ ರಸಸದಯನನನ ಬಟನಟ ಪಪತವಬದ ದಬವಬ ಸಸತತನಲಲ
ಬಬಡಗಗದಬರರಬಗದಬದರಗ ಎಎದನ ತಗತಸರಸಲನ ನನನ ಬಳ ಯಬವವದಗಸ
ದಬಖಲಗ ಇರನವವದಲಲ".
(except the rent receipts, I am not having other
documents to show that, defendant was tenant to the
schedule property). Thus, from the documentary evidence
at Ex.D.4, it is clear that, plaintiff only relied the receipt
under Ex.P.2 to show that defendant was tenant to the
scheduled property. Except the said receipts, she is not
having any other document to show that defendant is
tenant to the scheduled property. But this court while
appreciating the evidentiary value under Ex.P.2, hold
that, defendant not paid the rents under the said
document. Thus, defendant by producing the
documentary evidence at Ex.D.4 successfully discharged
28 O.S.No.8236/2015
the onus that he not residing as tenant in the schedule
property. Therefore, it can be concluded that, plaintiff
failed in proving that, she let out the scheduled property
on lease to the defendant and defendant is her tenant for
the same. Hence, my answer to Issue No.2 is in
Negative.
49. ISSUE NO.3: As this court answered issue
No.2 in negative, the question of answering of this issue
No.3 does not arises. Hence, issue No.3 not anwered.
50. ISSUE NO.4: Defendant in his written
statement para No.3 and 7(h) pleaded that, the husband
of plaintiff treated him as son and therefore, he was very
obedient to the words of husband of plaintiff. Plaintiff
and her husband in token of their love and affection
towards him donated the schedule property to him by
executing gift deed dated 9.9.2008. He further pleaded
that, the possession of schedule property was also
delivered to him and in view of the same, he residing in
the schedule property along with his family.
51. Defendant in order to prove the fact of execution
of gift deed dated 9.9.2008 by the plaintiff and her
husband, adduced oral evidence and also produced the
documentary evidence. He himself examined as D.W.1
and produced the documentary evidence at Ex.D.2 and
D.12 to D.32.
29 O.S.No.8236/2015
52. The documentary evidence at Ex.D.2 is an
unregistered gift deed, which according to defendant
plaintiff and her husband executed the same. Plaintiff
not agreed and not admitted that she along with her
husband executed the said gift deed. Plaintiff in her
plaint pleadings at para No.9 pleaded that, defendant
created the said gift deed and hence, it is fictitious and
bogus and document. The Gift deed is a document which
requires to be executed by attestation and registration.
Section 123 of Transfer of Property Act, 1882 provides
that,
"Section 123: Transfer how effected: For
the purpose of making a gift of immovable
property, the transfer must be effected by a
registered instrument signed by or on behalf
of the donor, and attested by at leasttwo
witnesses.
For the purpose of making a gift of
movable property, the transfer may be
effected either by a registered instrument
signed as aforesaid or by delivery.
Such delivery may be made in the
same way as goods sold may be delivered".
53. In this case the entire case of the defendant is
depending upon the alleged gift deed under Ex.D.2. On
careful perusal of the documentary evidence at Ex.D.2, it
is found that, the transfer of schedule property by way of
gift is not affected by a registered instrument. Thus, the
gift under Ex.D.2 is not in accordance with the above said
30 O.S.No.8236/2015
provisions and therefore, the gift under Ex.D.2 is not a
legal document.
54. The defendant as per the provisions of Section
123 of Transfer of Property Act has to establish and has to
prove by examining attesting witness that plaintiff and
her husband jointly executed the gift deed dated 9.9.2008
and thereby donated the schedule property to him,
particularly when plaintiff denying the very execution of
the said gift deed. But, in this case defendant not
examined any attesting witness to prove the fact of
execution of Gift deed dated 9.9.2008. In a case reported
in AIR 2019 SC 4822 (AIR online 2019 SC 1114) in the
matter of Govind Bai Chota Bai Patel & Others -Vs-
Patel Raman Bai Mathura Bai, the Hon'ble Supreme
Court of India held that:
"Under the absence of specific denial of
execution of gift deed, it is not mandatory for
the donee to examine any attesting witness
to prove the due execution of gift deed".
55. The Hon'ble Supreme Court of India in the
above said case held that, where there is no denial of
execution of gift deed, examination of an attesting witness
is not necessary. Thus, the other face of said verdict
made it compulsory that, if the execution of the gift deed
is specifically denied then, it is mandatory for the donee to
prove the execution of gift deed by examining an attesting
witness. In this case, plaintiff specifically denied the
31 O.S.No.8236/2015
execution of gift deed by herself and her husband and
hence, defendant is under statutory obligation to prove
the fact of execution of gift deed under Ex.D.2 by
examining an attesting witness. The obligation of proving
of fact of gift is laid down in Section 68 of Indian
Evidence Act, 1872. The extracted part of said provision
is as under:
Section 68: Proof of execution of
document required by law to be attested:If
a document is required by law to be attested, it
shall not be used as evidence until one
attesting witness at least has been called for
the purpose of proving its execution, if there be
an attesting witness alive, and subject to the
process of the Court and capable of giving
evidence: 1[Provided that it shall not be
necessary to call an attesting witness in proof
of the execution of any document, not being a
Will, which has been registered in accordance
with the provisions of the Indian Registration
Act, 1908 (16 of 1908), unless its execution by
the person by whom it purports to have been
executed is specifically denied.]
56. On plain perusal of the documentary evidence
under Ex.D.2, it reveals that, the same has been executed
in the presence of two attesting witnesses. But, defendant
examined none of them. Hence, it can be held that,
defendant not proved the gift of schedule property under
Ex.D.2 as per the above said provisions.
32 O.S.No.8236/2015
57. It is the case of the defendant that, plaintiff and
her husband jointly executed the gift deed under Ex.D.2.
On careful reading of the recitals of the documentary
evidence at Ex.D.2, it can be grasped that, the language of
the recitals are only of the husband of plaintiff and not of
plaintiff. The said recitals further reveals that, plaintiff
has not voiced about the gift of schedule property. Mere
affixing a photo of plaintiff over the said document does
not prove that she took part in the execution of the
document.
58. Defendant in order to prove his case under
issue No.4 also adduced oral evidence. He in para No.6 of
his affidavit of examination in chief stated that, plaintiff
and her husband executed a gift deed dated 9.9.2008 and
thereby donated schedule property to him. But, the said
oral evidence requires to be coupled with documentary
evidence executed in lawful manner. Defendant is not
having any documentary evidence which were legally
executed to prove his case under issue No.4. In fact, the
counsel for plaintiff during cross-examination of D.W.1
suggested that whether he tried to get register the gift
under Ex.D.2. But, on last para of last page of the cross-
examination, defendant who examined as D.W.1 stated
that:
"I have not asked the plaintiff for registration of
Ex.D.2. I also not issued any legal notice to the
plaintiff demanding registration. I have not
instituted any suit for declaration of ownership
33 O.S.No.8236/2015
over suit property based on Ex.D.2. It is false
to suggest that I have not taken any action as
Ex.D.2 is a concocted and bogus".
Thus, the above said testimony of D.W.1 makes it
clear that, the gift deed under Ex.D.2 is unregistered one
and he not made any effort to get register the same as
required under the law of Transfer of Property Act.
59. The counsel for plaintiff argued that, the
document under Ex.D.2 is an illegal one and not confers
any right to defendant over schedule property. He took
my attention to a authority reported in AIR 1993 Delhi
19 in the matter of Wing Commadner(Retd.) R.N.Dawar
-Vs- Sri.Ganga Sharana Dhama, wherein it has been
held that,
"Under Section 123 of Transfer of Property Act,
a gift of immovable property which is not
registered is bad in law and cannot pass any
title to the donee. Any oral gift of immovable
property cannot be made in view of the
provisions of Section 123 of Transfer of
Property Act. Mere delivery of possession
without written instrument cannot confer any
title".
60. The counsel for plaintiff also relied an authority
of Supreme Court reported in AIR 2001 SC 3648 in the
matter of Income Tax Commissioner -Vs- Hirehmal
Nawalakha, wherein it has been held that:
34 O.S.No.8236/2015
"A valid Transfer of property by way of a
gift, the compliance of provisions of Transfer
of Property Act and Registration Act are
compulsory."
61. In this case, the gift under Ex.D.2 is not
registered one and hence, it can be stated that, it not
complies the provisions of Registration Act. Further, no
attesting witness have been examined to prove the
execution of gift deed. Thus, as rightly argued by the
counsel for the plaintiff, it can be held that, the gift under
Ex.D.2 is not duly executed. Thus, defendant utterly
failed in proving the fact that, plaintiff and her husband
jointly executed the gift deed dated 9.9.2008 donating the
schedule property to him. Accordingly, my answer to
Issue No.4 is in Negative.
62. ISSUE NO.5: Plaintiff instituted the suit
seeking relief of declaration declaring that, she is the
absolute owner of schedule properties. She further also
sought relief of possession, permanent injunction and
damages. In fact, plaintiff ought to seek the further reliefs
as consequential reliefs to the main relief of declaration.
No doubt in this case plaintiff not sought the further
reliefs as consequential reliefs, but when she sought the
relief of declaration as main relief, it follows that the
further reliefs, have to be treated as consequential reliefs.
Section 34 of Specific Relief Act, 1963 says about when a
court has to grant the relief of declaration. The extracted
35 O.S.No.8236/2015
part of Section 34 of Specific Relief Act, 1963 is as
under:
"34. Discretion of court as to declaration
of status or right.--Any person entitled to
any legal character, or to any right as to any
property, may institute a suit against any
person denying, or interested to deny, his title
to such character or right, and the court may
in its discretion make therein a declaration
that he is so entitled, and the plaintiff need
not in such suit ask for any further relief:
Provided that no court shall make any
such declaration where the plaintiff, being
able to seek further relief than a mere
declaration of title, omits to do so".
Thus, as per the above said provision, if court
found it necessary that if any person is entitled to any
legal character or to any right in respect of a property,
shall declare that, he is so entitled. Further, if that
person is able to ask some more consequential reliefs, the
court should also grant the same. The relief of declaration
is no doubt an unique relief that a civil court is having
power to grant the same. The said relief is purely a
discretionary relief and hence, a party cannot claim the
same as a right. A civil court should exercise the
discretionary on sound principles of judicial process and
that discretionary cannot be exercised arbitrarily. As
justice is a hall mark and cannot be administered in
36 O.S.No.8236/2015
vacuum, the court should weigh the pros and cons of the
case while granting the discretionary reliefs such as relief
of declaration.
63. In this case plaintiff pleaded that, she
purchased the schedule property through a registered
sale deed dated 24.3.2003 and after purchasing the same,
she constructed a building comprising of ground floor and
first floor by demolishing the old house situated therein.
The documentary evidence at Ex.P.1 i.e. sale deed dated
24.3.2003 gives the proof that plaintiff purchased the
schedule property and thus, acquired the title over the
same. Further, the documentary evidence at Ex.P.4 to 6,
8 and 10 discloses that, plaintiff confirms the ownership
of plaintiff over schedule property.
64. Defendant contended that, he along with
husband of plaintiff purchased the schedule property and
hence, according to him, the schedule property is a joint
family property of himself and plaintiff. Defendant by the
said contentions created a cloud to the right of ownership
of plaintiff over schedule property. Therefore, plaintiff is
in right seeking relief of declaration declaring that, she is
the owner of schedule property. In this case defendant is
not steady about his defense. On one side he contends
that, he along with husband of plaintiff purchased the
schedule property and hence, the same is joint family
property of plaintiff and himself. On the other hand, he
contends that, plaintiff and her husband donated the
schedule property to him by executing gift deed dated
37 O.S.No.8236/2015
9.9.2008. Therefore, the contradictions in the stand of
the defendant shows that, he is nothing to do with
schedule property. However, he is claiming the same and
thereby created a cloud around the claim of plaintiff.
Hence, it is just and necessary to remove the said clouds
by declaring that plaintiff is the owner of schedule
property as she is entitle to all kind of rights in respect of
the same.
65. Plaintiff sought the possession of schedule
property. The said relief is a consequential relief to the
relief of declaration of her ownership over the schedule
property. When she has been declared that, she is the
owner of schedule property, she is able to seek further
relief of possession as stated in proviso clause of Section
34 of Specific Relief Act, 1963. The relief of possession
follows the relief of declaration. The said relief should not
only be capable of being granted, but of being enforced by
the court and the relief should be necessary to make the
declaratory relief truthful and should be available to the
plaintiff. Therefore, when plaintiff declared as owner of
schedule property, she certainly entitle to the
consequential relief of possession of the said property.
Hence, I am of the opinion that, plaintiff is entitle for the
vacant possession of the schedule property. Therefore,
my answer to Issue No.5 is in Affirmative.
38 O.S.No.8236/2015
66. ISSUE NO.6: Defendant in para No.2 of his
written statement contended that, the court fee paid by
the plaintiff is insufficient and the plaintiff undervalued
relief claimed.
67. Plaintiff sought the relief of declaration along
with possession and for the said relief she valued the suit
as per the provisions of Section 24(a) of Karnataka Court
Fees and Suits Valuation Act, 1958 and paid the court fee
of Rs.1,56,125/- as per the market value of the schedule
property. Hence, the said valuation of the said relief is in
accordance with the law of court fees and suits valuation.
68. Plaintiff also sought relief of permanent
injunction against the defendant and she valued the said
relief for Rs.1,000/- under Section 26(c) of Karnataka
Court Fees and Suits Valuation Act, 1958. The said
valuation and payment of court fee is not proper. Section
26 of Karnataka Court Fees and Suits Valuation Act, 1958
says about how court fees are to be reckoned for the relief
of permanent injunction. The text part of the said
provision is as under:
"Section 26: Suits for injunction: In a
suit for injunction:
(a) where the relief sought is with
reference to any immovable property, and
(i) where the plaintiff alleges that his title
to the property is denied, or
39 O.S.No.8236/2015
(ii) where an issue is framed regarding
the plaintiff's title to the property,
fee shall be computed on one-half of the market
value of the property or on [rupees one thousand]
whichever is higher;
[(b) x x x x x;]
(c) in any other case, whether the subject-
matter of the suit has a market value or not , fee
shall be computed on the amount at which the relief
sought is valued in the plaint or on rupees [one
thousand] whichever is higher".
69. In this case plaintiff sought declaration of her
ownership over the schedule property. Indirectly plaintiff
contended that, her title to the schedule property has
been denied. Accordingly, this court also framed issue
No.1, which directly touches the matter of title of plaintiff
to the schedule property. Therefore, plaintiff ought to
have pay the court fees as per the provisions of Section
26(a) of Karnataka Court Fees and Suits Valuation Act,
1958 and not as per the provisions of Section 26(c) of the
said Act. Plaintiff valued the market value of scheduled
property at Rs.33,00,000/-. Therefore, to seek relief of
injunction, she should pay the court fee on ½ of he
market value of the schedule property. But plaintiff not
paid the court fee on half of the market value of scheduled
property. Therefore, she is not entitled the relief of
injunction.
40 O.S.No.8236/2015
70. Plaintiff further also sought damages of
Rs.3,60,000/-. Thus, the case of the plaintiff for payment
of court fees on damages of Rs.3,60,000/- falls under
Article-1(iv) of the Schedule-I of the Karnataka Court
Fees and Suits Valuation Act, 1958 and she paid required
court fee of Rs.24,275/-. Thus, in all plaintiff paid
Rs.1,80,425/- as court fees.
The said payment of court fees is not sufficient and
proper to grant all the reliefs sought. Hence, my answer to
Issue No.6 is in Affirmative.
71. ISSUE NO.7: Defendant in para No.2 of his
written statement took a plea that the suit of plaintiff is
barred by law of limitation. Plaintiff in her plaint para
No.12 pleaded that, the cause of action for the suit firstly
arose on 1.8.2008 when defendant inducted as tenant to
the schedule property and lastly resulted on 6.8.2015
when the Hon'ble High Court of Karnataka disposed off
the CRP No.111/2014 by giving liberty to plaintiff to
establish her rights over the schedule property by filing an
appropriate suit in a proper court of law. Therefore, the
right to plaintiff to sue the defendant accrues on 6.8.2015
and hence, the limitation period has to be counted from
the said day. As pere the provisions of Article-58 of the
Schedule of Limitation Act, 1963, the limitation period for
a suit for declaration is 3 years from the date of accruing
the right to sue. Plaintiff instituted the suit by presenting
41 O.S.No.8236/2015
the plaint on 28.9.2015. Therefore, the suit of the
plaintiff is well in time and the same is not barred by
limitation. Hence, my answer to Issue No.7 is in
Negative.
72. ISSUE NO.8: Plaintiff sought relief of
declaration and further reliefs of vacant possession of
schedule property, relief of injunction and she also
claimed the damages. It is the case of the plaintiff that,
defendant is in illegal occupation of schedule property
and therefore, he is liable to pay the damages. Plaintiff
through her pleadings admitted that, defendant is in
possession of schedule property and he has been inducted
by her as a tenant. But, plaintiff failed in establishing
that the defendant is tenant to the schedule property.
73. It is the case of the defendant that, the schedule
property is the joint family property of himself and
plaintiff and since beginning he is in possession of the
schedule property. But, defendant failed to establish
that, the schedule property is a joint family property of
himself and plaintiff and he further also failed to establish
that he also contributed for acquisition of schedule
property. The documentary evidence at Ex.D.21 to 24(a)
i.e. electricity bills and the documetnary evidence at 26 to
32 i.e. the tax paid receipts discloses that, he paid
electricity bill and property tax of the schedule property.
But, the said documents discloses that, the schedule
property is standing in the name of plaintiff. The
42 O.S.No.8236/2015
documentary evidence at Ex.D.25 is the water bill and it
is in the name of defendant. The payment of electricity
bill, water bill and property tax discloses that, defendant
is in the possession of the schedule property. But, the
said possession of schedule property shall not be
construed as a possession under tenancy. Defendant just
by paying electricity bill, water bill and property tax
cannot establish his rights of ownership over the schedule
property and he has to vacate the same and hand over the
vacant possession of the schedule property to the rightful
owner plaintiff. Plaintiff not paid the proper court fees for
seeking relief of permanent injunction. Hence, she is not
justified in claiming the said relief. Therefore, the said
relief is refused.
74. Defendant is in the possession of schedule
property under bonafide impression that he is having a
right accordingly. Therefore, it cannot be held that, he is
in illegal occupation of schedule property. Therefore,
plaintiff is not entitled for damages as she claimed.
Hence, my answer to Issue No.8 is partly in Affirmative.
75. ISSUE NO.9: In view of my observations/
answers to the issue No.1 to 8, I proceed to pass the
following
43 O.S.No.8236/2015
ORDER
Suit of the plaintiff is hereby partly decreed.
It is hereby decreed and declared that, plaintiff is the absolute owner of schedule property.
Defendant is hereby directed to vacate the schedule property and surrender the vacant possession of the same to the plaintiff within one month from today.
Draw decree accordingly.
(Dictated to the Judgment Writer on computer, computerised by her, corrected and then pronounced by me in open court on the 1 st day of September, 2020.) (Ningouda B.Patil) XX ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
44 O.S.No.8236/2015ANNEXURE List of witnesses examined for the Plaintiff:
P.W.1: Smt.Anasuya.
List of documents marked for the Plaintiff:
Ex.P.1 Original Sale Deed. Ex.P.2 Rent receipt book. Ex.P.3 Legal notice along with the postal cover.
Ex.P.4 & 5 Form No.15.
Ex.P.6 Three Tax paid receipts.
Ex.P.7 Certified copy of the judgment and decree
in SC No.1474/2011.
Ex.P.8 Certified copy order sheet in CRP
No.111/2014.
Ex.P.9 Certified copy of the order in CRP
No.111/2014.
Ex.P.10 Form-B Property Register extract.
Ex.P.11 Written statement in S.C.No.1474/2011.
Ex.P.12 Evidence of defendant in SC
No.1474/2011.
Ex.P.13 Office copy of legal notice.
Ex.P.14 Certified copy of family tree.
List of Witnesses examined for the defendant:
D.W.1: Sri.J.Venkatesh.
List of documents marked for the defendant:
Ex.D.1 Family tree.
Ex.D.2 Gift Deed.
Ex.D.3 Photos.
Ex.D.4 Deposition in S.C.No.1474/2011.
45 O.S.No.8236/2015
Ex.D.5 to 7 Photos.
Ex.D.8 Certified copy of the order in Writ Petition
No.14051/2013.
Ex.D.9 Certified copy of photo of name plate of
house.
Ex.D.10 Certified copies of photos.
Ex.D.11 Certified copy of the Order Sheet in O.S
No.3974/2012.
Ex.D.12 Electricity bill.
Ex.D.12(a) Receipt for payment of electricity charges
for the year 2005.
Ex.D.13 Electricity bill.
Ex.D.13(a) Receipt for payment of electricity charges
for the year 2005.
Ex.D.14 Electricity bill.
Ex.D.14(a) Receipt for payment of electricity charges
for the month of November 2005. Ex.D.15 Electricity bill.
Ex.D.15(a) Receipt for payment of electricity charges for the year 2010.
Ex.D.16 Electricity bill. Ex.D.16(a) Receipt for payment of electricity charges for the year 2013.
Ex.D.17 Electricity bill. Ex.D.17(a) Receipt for payment of electricity charges for the year 2014.
Ex.D.18 Electricity bill. Ex.D.18(a) Receipt for payment of electricity charges for the year 2014.
Ex.D.19 Electricity bill for the month of January, 2015.
Ex.D.20 Electricity bill for the month of January, 2015.46 O.S.No.8236/2015
Ex.D.20(a) Receipt for payment of electricity charges. Ex.D.21 Electricity bill. Ex.D.21(a) Receipt for payment of electricity charges for the month of October 2016. Ex.D.22 Electricity bill. Ex.D.22(a) Receipt for payment of electricity charges for the month of January 2016. Ex.D.23 Electricity bill. Ex.D.23(a) Receipt for payment of electricity charges for the month of April 2018. Ex.D.24 Water bill for the month of August 2018. Ex.D.24(a) Receipt for payment of water charges.
Ex.D.25 Electricity bill for the month of March, 2018.
Ex.D.25(a) Receipt for payment of electricity charges. Ex.D.26 Property tax paid receipt for the year 2011-12.
Ex.D.27 Property tax paid receipt for the year 2012-13.
Ex.D.28 Property tax paid receipt for the year 2013-14.
Ex.D.29 Property tax paid receipt for the year 2014-15.
Ex.D.30 Property tax paid receipt for the year 2015-16.
Ex.D.31 Property tax paid receipt for the year 2016-17.
Ex.D.32 Property tax paid receipt for the year 2017-18.
Ex.D.32(a) Bank challan.
(Ningouda B.Patil) XX ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.47 O.S.No.8236/2015 48 O.S.No.8236/2015
Judgment pronounced in the open court (vide separate judgment).
ORDER Suit of the plaintiff is hereby partly decreed.
It is hereby decreed and declared that, plaintiff is the absolute owner of schedule property.
Defendant is hereby directed to vacate the schedule property and surrender the vacant possession of the same to the plaintiff within one month from today.
Draw decree accordingly.
XX Addl.C.C. & S.J., Bengaluru.49 O.S.No.8236/2015 50 O.S.No.8236/2015