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2016 DIGILAW 45 (KAR)

DATTATRAYA MANAPPA PATTAR v. BASAVARAJ MANAPPA PATTAR

2016-01-12

A.S.BOPANNA

body2016
JUDGMENT : A.S. BOPANNA, J. 1. The appellant is before this Court assailing the concurrent judgments passed by the Courts below. The suit filed by the appellant as the plaintiff in O.S.No.666/2010 was dismissed by the judgment dated 23.11.2013. Plaintiff claiming to be aggrieved by the same was before the lower appellate Court in R.A. No. 147/2013. The lower appellate Court by the judgment dated 14.08.2015 has dismissed the appeal. It is against such concurrent judgments, the appellant is before this Court in this second appeal under Section 100 of the Civil Procedure Code. 2. The case of the plaintiff before the Court below is that, he is exclusive owner of the suit property bearing No. 228, new number 19, measuring 63" x 33". In that regard, it was contended that the said property was purchased under the sale deed dated 19.05.1979 and the defendants who are his mother and brother, were permitted to occupy the said house. The father of the plaintiff died on 13.12.2009, after which, the plaintiff demanded the defendants to give back possession to the plaintiff. Since the defendants did not accede to such request, the notice was issued and suit was filed. The defendants though appeared, filed their written statement belatedly. The Court below on taking note of the contentions, framed as many as four issues for its consideration: 1. Whether plaintiff proves that he is the owner for suit property? 2. Whether plaintiff proves that the defendants are put in permissive possession in the suit property? 3. Whether plaintiff is entitled for the relief as being sought for? 4. What order or decree? The plaintiff examined himself as PW. 1 and relied upon the documents at Exs.P1 to P13. The defendants did not choose to tender any evidence. 3. The Trial Court, based on the evidence available on record, keeping in view the contentions as put forth has considered the case and answered the issues against the plaintiff. Insofar as the claim that he is the absolute owner of the property and the defendants were in permissive possession, the Court below has taken note of the documents produced by the plaintiff, more particularly the sale deed at Ex.P2. Insofar as the claim that he is the absolute owner of the property and the defendants were in permissive possession, the Court below has taken note of the documents produced by the plaintiff, more particularly the sale deed at Ex.P2. From the said document, the Court below has taken note of the fact that the property in question was purchased in the name of the plaintiff by his father and his father who was employed had paid the sale consideration at that point in time since the plaintiff was a minor. The other documents relied on are the tax paid receipts and electricity bills pertaining property. Keeping in view the fact that the purchase made by the father though in the name of the plaintiff, it was when he was a minor and in that light keeping in view the fact that the defendants were none other than the mother and brother of the plaintiff, the Court below has arrived at the conclusion that the case as put forth by the plaintiff to be the absolute owner and to secure possession from the defendants cannot be accepted. The lower appellate Court while taking note of the said judgment has re-appreciated the evidence and accepted findings rendered by the Court below. 4. Learned counsel for the appellant while assailing the concurrent judgments would refer to the decision of this Court in the case of Hanumakka and others v. Narasamma and others (AIR 1962 Mysore 3) to contend that the possession of the property of a minor would be on minor's behalf and therefore in the instant case the defendants who were in possession of the plaintiff's property as he was a minor when they occupied would still continue to be the property of the plaintiff and as such, the right as claimed is to be granted. From the said decision there can be no dispute that a person entering in possession of the minors property would be for the minor's benefit in a normal circumstance. However, in the instant case the issue is as to whether it was the absolute property of the plaintiff. To that extent, both the Courts below after taken into consideration the evidence available on record have in that light taken note of the fact that the father of the plaintiff had paid the sale consideration and secured the sale deed in the name of the plaintiff. To that extent, both the Courts below after taken into consideration the evidence available on record have in that light taken note of the fact that the father of the plaintiff had paid the sale consideration and secured the sale deed in the name of the plaintiff. The second defendant is also another son being the brother of the plaintiff and the first defendant is the mother. If that be the position unless the plaintiff had also produced evidence before the Trial Court to indicate that the father had purchased other properties in the name of the mother or the brother and such properties are being enjoyed by them and therefore if the plaintiff had claimed absolute right to the property the consideration could have been different. 5. On the other hand, when the plaintiff refers only the suit schedule properties and claims that the defendants are in permissive possession of the property belonging to the plaintiff and claims absolute right and when it is seen that the father has purchased the property from his income certainly the second defendant can also make a claim in respect of the same property. Further the plaintiff in making such claim after the death of the father through he had attained the age of majority much earlier. Therefore, to the extent of the Courts below arriving at the conclusion that the plaintiff cannot claim absolute right, it is justified. 6. It is however made clear if based on the above facts, there is any other claim with regard to the share in the property to be claimed in appropriate proceedings, the contentions in that regard in any event would remain open. However, insofar as the instant appeal it is seen that it is a finding of fact recorded by both the courts and no substantial question of law arises for consideration. 7. The above appeal does not merit admission. In that view the appeal is disposed of with no order as to costs.