Research › Search › Judgment

Karnataka High Court · body

2010 DIGILAW 386 (KAR)

SHIVANNA v. JAYAMMA

2010-03-26

V.JAGANNATHAN

body2010
JUDGMENT This appeal is by the defendant before the Trial Court and he is aggrieved by the suit of the respondents-plaintiffs being decreed in part and the appellant was directed to deliver vacant possession of the suit schedule property to the plaintiffs and also holding that the plaintiffs are entitled to recover mesne profits by way of damages from the date of suit till delivery of vacant possession of the suit schedule property by the defendant. It is this judgment that is called in question by the defendant. 2. The case of the plaintiffs before the Trial Court was that the suit schedule property was originally allotted in the 1st plaintiffs father in law by name Kalegowda by the BDA and following his death in 1990. Kalegowda's wife Puttamadamma, mother-in-law of the 1st plaintiff made an application to the BDA and she was issued with the possession certificate on 22-10-1998. Puttamadamma's only son Basava, the husband of the 1st plaintiff and father of plaintiffs 2 and 3 also died in the year 1992. Therefore, the plaintiffs being the L.Rs of deceased Basava, who was the only son of Kalegowda and Puttamadamma, are entitled for seeking possession of the suit schedule property from the defendant and apart from that, the plaintiffs also prayed for a declaration to the effect that they are the absolute owners of the suit schedule property and also for cancellation of the Will said to have been executed by Puttamadamma in favour of the defendant and Nanjamma, another daughter of Puttamadamma. 3. The defendant on his part denied the plaint averments and took up the stand that Puttamadamma executed a Will in favour of the defendant and Nanjamma and by virtue of the said Will, the defendant became the owner of the suit schedule property and it was also contended that the 1st plaintiff-deserted her husband i.e., Basava and she did not take care of Basava till his death and the defendant assisted the family in all respects when the 1st plaintiff failed to take care of the family and because of this help from the defendant, Puttamadamma bequeathed the southern portion of the property bearing No. 3299 measuring East-West 41 and North to South 12 1/2 feet under a registered Will to the defendant, and Nanjamma was given the other portion. Citing all these grounds, defendant sought for dismissal of the suit. 4. Citing all these grounds, defendant sought for dismissal of the suit. 4. Learned Trial Judge in the light of the stand taken by the parties in their pleadings; framed the following issues: 1. Whether the plaintiffs prove that they are the absolute owners of the suit schedule property? 2. Whether the plaintiffs further prove that the Will alleged to be executed by Smt. Puttamadamma, the mother-in-law of the first plaintiff has been obtained by the defendant by misrepresenting facts and fraudulently and the said Will is bogus, created and concocted and in liable to be cancelled? 3. Whether the plaintiffs are entitled to recover possession of the suit schedule property i.e., house measuring 41 x 12 and half feet from the defendant? 4. Whether the plaintiffs are entitled to mesne profits from the defendant to the extent of Rs. 550/- pm from the date of suit till the date of delivery of vacant possession of the suit schedule property? 5. Whether the plaintiffs are entitled to the reliefs as sought for? 6. What decree or order? 5. After considering the evidence let in by the parties, aforesaid issues were answered as under: Negative. Negative, but liable to be cancelled. Entitled. Entitled but the same shall be ascertained by separate proceedings to be initiated by the plaintiffs under Order 20, Rule 12 of the Civil Procedure Code. Issue No.5: Entitled to the relief to the extent stated above. Issue No.6: See as per order below. 6. Consequently, on the said findings, the suit of the plaintiffs was partly decreed by directing the appellant herein to vacate and deliver vacant possession of the suit schedule property in favour of the plaintiffs within three months failing which the plaintiffs were at liberty to execute the decree and obtain possession of the suit schedule property by the defendant and the plaintiffs were also held to be entitled to recover mesne profits by way of damages from the date of suit till delivery of vacant possession of the suit schedule property by the defendant. 7. I have heard learned Counsel for the appellant and learned Counsel for the respondents and perused the entire material on record. 8. 7. I have heard learned Counsel for the appellant and learned Counsel for the respondents and perused the entire material on record. 8. Submission of the appellant's Counsel is that the Trial Court having recorded a finding in the negative as regards issues 1 and 2 are concerned, could not have directed the defendant to hand over vacant possession to the plaintiffs. It is further submitted that, in one part Nanjamma is residing and in another part the defendant is residing and it is not clear as to, to which portion the direction given by the Trial Court is applicable. 9. It is further submitted that when Puttamadamma had executed a Will and when the said Will has not been held to be a bogus Will by the Trial Court in view of its finding on issue No.2, the question of plaintiffs becoming the absolute owners of the suit schedule property therefore does not arise. Issue No.1: Issue No.2: Issue No.3: Issue No.4: 10. Ai5 far as the co-owners are concerned, submission made is that, when Puttamadamma has got daughter Nanjamma and three more daughters apart from her son Basava, without the co-owners also being made parties, the suit could not have been decreed even in part by the Trial Court. On these grounds, interference was sought against the judgment and decree of the Trial Court. 11. On the other hand, learned Counsel Sri Katarki for the respondents plaintiffs argued that the judgment of the Trial Court requires no interference because the Trial Court has observed that the Will said to have been executed by Puttamadamma in favour of the defendant and Nanjamma is liable to be cancelled as the said Will was in violation of the terms and conditions of the allotment made by the BDA in favour of Puttamadamma, in the sense that, as on the date of making the Will i.e., Ex. D. 3-Puttamadamma had not acquired absolute title over the suit schedule property as there was a ban for ten years in doing anything in respect of the suit property by way of alienation etc. D. 3-Puttamadamma had not acquired absolute title over the suit schedule property as there was a ban for ten years in doing anything in respect of the suit property by way of alienation etc. Therefore, the Trial Court has rightly observed that notwithstanding the plaintiffs failure to establish that the Will was a concocted or bogus one, yet the Will is liable to be cancelled in view of Puttamadamma herself having no absolute ownership over the suit schedule property at the time of executing the Will in view of the bar contained in the terms and conditions of the allotment made in favour of Puttamadamma by the BDA. 12. Further it is submitted that it is not in dispute that the plaintiffs are the legal representatives of deceased Basava, the only son of Puttamadamma apart from other daughters of Puttamadamma and there is no objection raised by any other co-owners when the plaintiffs filed the suit seeking delivery of vacant possession from the defendant in respect of suit schedule property and under the said circumstances, the consent of other co-owners will have to be deemed to be there. 13. As far as the house that is put up in the suit property is concerned, submission made is that it was Puttamadamma, who from the income of her son Basava, had constructed the house and therefore the Trial Court was justified in ordering the defendant to deliver vacant possession to the plaintiffs. 14. In the light of the aforesaid submission made and on going through the material on record, the Trial Court was justified in holding that the Will said to have been executed by Puttamadamma is liable to be cancelled as Puttamadamma had no legal right to bequeath the property to Shivanna and Nanjamma in view of the bar contained under the BDA Rules and Regulations. If the Will is taken out of consideration, then what remains is the undisputed fact of the plaintiffs along with other heirs of Puttamadamma being the legal representatives, who can seek eviction of the defendant from the suit schedule property. The Trial Court therefore while declining to grant the relief of declaration has granted the relief of delivery of vacant possession of suit schedule property by the defendant in favour of the plaintiffs. The Trial Court therefore while declining to grant the relief of declaration has granted the relief of delivery of vacant possession of suit schedule property by the defendant in favour of the plaintiffs. Having regard to the evidence on record, most of which is not in dispute and the Will also having been taken out of consideration in view of the reasons assigned by the Court below at para 9, I am of the view that the judgment of the Trial Court cannot be said to be erroneous either on facts or in law. 15. The question now remains is as to the grant of time to the appellant to hand over vacant possession of the suit schedule property to the plaintiffs. 16. Learned Counsel for the appellant sought five years time to vacate suit premises, whereas, learned Counsel for the respondents/plaintiffs submitted that the suit itself was filed way back in the year 2000 and even after the judgment of the Trial Court, four years have elapsed and moreover, the 1st plaintiff is residing in a rented house along with her two children and under these circumstances, the time sought by the appellant therefore is unreasonable. 17. In the light of the aforesaid submission made, the following order is passed. The appeal is dismissed. However, as far as grant of time is concerned, the appellant is granted six months time from the date of this order's receipt to vacate and hand over vacant possession of the suit schedule property to the plaintiffs and also to comply with other directions given by the Trial Court. If the appellant does not vacate the suit premises within the aforesaid time, the plaintiffs are at liberty to take necessary steps to execute the judgment of the Trial Court.