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2015 DIGILAW 271 (KAR)

Ganga v. K. T. Nalini

2015-03-10

ANAND BYRAREDDY

body2015
JUDGMENT : Anand Byrareddy, J. 1. This is a defendant's appeal. The parties are referred to by their rank before the trial court. 2. The suit was filed seeking the ejectment of the defendant from the suit schedule property and for damages. The plaintiff claimed to be the absolute owner of property bearing No. 1/1 (Old No. 1/A and even earlier, bearing No. 456), and also property bearing No. 31/6 (Old No. 455), 13th Main Road, Malleswaram, Bangalore. The said properties were more fully described in Schedule 'A' to the plaint. The said properties were said to have been purchased from one B.V. Patankar, under a registered sale deed dated 2.4.1973. The above two items of property are said to be separated by a drain. The property bearing No. 31/6 is relatively the larger portion with a shed thereon measuring about 20 x 20 feet while on the smaller property bearing No. 1/1, there was said to be shed measuring 10 x 20 feet. It was stated that the original owner Patankar had sold a larger area of the properties aforesaid in favour of one L. Srinivasa Rao, under a registered sale deed dated 20.1.1949. The said Rao is said to have formed a residential layout comprising of about 74 house sites in the said land. The said residential layout is said to have been approved by the then Bangalore City Corporation as on 31.8.1955. The remaining portion of the said sites were what was sold to the plaintiff as aforesaid. The khatha in respect of the same was said to be in favour of the plaintiff and he had been paying property taxes. 3. It is stated that the defendant had approached the plaintiffs husband in April 1978, seeking permission to reside, along with his family, in the larger shed described above and more fully described in Schedule 'B' to the plaint. It is stated that the defendant was an employee of the City Corporation and was working as a gangman. The plaintiffs husband was a civil contractor who was executing several civil works for the Corporation and had hence permitted the defendant to occupy the shed, along with his family, for his residence as a licensee. 4. It is stated that the defendant was an employee of the City Corporation and was working as a gangman. The plaintiffs husband was a civil contractor who was executing several civil works for the Corporation and had hence permitted the defendant to occupy the shed, along with his family, for his residence as a licensee. 4. However, it is claimed that the defendant had over the years developed designs to take over the suit Schedule 'B' property, and is said to have initially instituted false complaints of the plaintiff and her husband having encroached on public property, prompting the officials of the Corporation to dispossess the plaintiff and her husband from Schedule 'A' property itself This had prompted the plaintiff to take the defendant to task and she along with her husband on 10.8.1989, in the presence of several witnesses, had called upon him to quit and deliver vacant possession of the suit property. 5. In response thereof, the defendant is said to have got issued a legal notice and had refused to vacate the same and sought to claim title to the property. It is in that background that the plaintiff had filed the suit for the ejectment of the defendant and for damages at the rate of Rs. 30/- per month for the illegal use and occupation of the premises. 6. Upon service of suit summons, the defendant is said to have entered appearance and had filed written statement to contend that the property in question did not belong to the plaintiff and that he was peaceful possession of the same for over two decades. On the other hand it was claimed that the said property was property belonging to the Corporation. It was also contended that he had filed a civil suit in O.S. 4366/1989, on the file of the City Civil Court, Bangalore, against the plaintiff and the Corporation which was pending consideration. On the above pleadings the court below had framed the following issues: "1. Whether the suit schedule property-Shed is situated in Corporation land as pleaded by the defendant? (recast as per orders dated 21.6.1992) 2. Whether plaintiff proves that she allowed the defendant to reside in B schedule shed as licencee as contended in plaint paras 5 and 6? 3. On the above pleadings the court below had framed the following issues: "1. Whether the suit schedule property-Shed is situated in Corporation land as pleaded by the defendant? (recast as per orders dated 21.6.1992) 2. Whether plaintiff proves that she allowed the defendant to reside in B schedule shed as licencee as contended in plaint paras 5 and 6? 3. Does plaintiff further prove that she has lawfully terminated the licence in respect of B schedule property as contended in plaint para No. 9? 4. Whether defendant proves that, he continued to be in possession of suit land for more than 20 years and land in question belongs to corporation as contended in paras 3 and 4 of his written statement? 5. Is the present suit properly valued? 6. To what reliefs the parties are entitled? 7. What decree or order?" The trial court had answered issue Nos. 1 and 4 in the negative and the other Issues in the affirmative and decreed the suit in favour of the plaintiff it is that judgment which is under challenge by the defendant. 7. It is contended by the learned counsel for the appellant that it is on record that documents pertaining to the suit property had been summoned from the BBMP, namely, the original records maintained by the Estate Officer, BBMP and had also had examined the said officer to assert that the property in question belonged to the BBMP and that the defendant was in possession of the same. This fact was also affirmed by a Surveyor of the BBMP who was examined as a witness. It is pointed out that the Estate Officer had personally visited the spot and verified the actual position. It is urged that it is not in dispute that the defendant and his family have been in possession of the property for over 40 years. It is asserted that it is the defendant who has constructed the premises in his occupation and he has sought for regularization of his occupation from the BBMP. And he was promised the same. The fact that he has not been disturbed is further confirmation of this position. And the appellant has sought to protect his settled possession. The plaintiffs claim to ownership is vehemently denied. 8. And he was promised the same. The fact that he has not been disturbed is further confirmation of this position. And the appellant has sought to protect his settled possession. The plaintiffs claim to ownership is vehemently denied. 8. However, it is seen that the trial court has drawn attention to Exhibit P-1, a registered sale deed, coupled with Exhibit P-24 a rectification deed to the sale deed, are documents of title pertaining to the suit property. The same are also said to have been accepted by the BBMP. In that, khata certificate has been issued in favour of the plaintiff and taxes have been regularly paid by the plaintiff Documents in support of the same were exhibited. And that survey records pertaining to the suit property indicating the plaintiff as the owner of the property are also produced and marked in evidence. And that in so far as the defendant was concerned, the trial court has opined that the several contentions put forth by the defendant were not proved. On the other hand he had admitted that he had written a letter as per Exhibit P-17 to give up the suit premises. This has been further confirmed by him as per Exhibit P-41. It is also observed that in the civil suit filed by the defendant in O.S. 4366/1989, it was held that the defendant was a trespasser and not entitled to the relief of permanent injunction. 9. On a consideration of the record and the findings of the trial court, the arguments canvassed by the learned counsel for the appellant are not tenable, the appeal is devoid of merit and hence the appeal is dismissed.