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2023 DIGILAW 405 (KAR)

Bhagya v. M Ramu

2023-03-09

H.P.SANDESH

body2023
JUDGMENT/ORDER 1. This matter is listed for admission. Heard the learned counsel appearing for the appellants. 2. This appeal is filed challenging the judgment and decree dtd. 30/11/2021 passed in R.A.No.221/2019 on the file of the III Additional District and Sessions Judge, Mysuru. 3. The factual matrix of the case of the plaintiff before the Trial Court is that he is the absolute owner of the land bearing Sy.No.144 measuring 0.04 guntas situated at Kasaba hobli, Mysuru taluk, Mysuru. The said land was granted to the plaintiff by Bhoo Nyaya Mandali in K.L.R.M.4253-4280/79-80. In the said land, the plaintiff constructed five residential houses and one shop. The plaintiff is also residing in one portion of the house. The shop was given on a rent to one Boregowda. The defendant who is the brother of the plaintiff sold his entire properties and thereafter requested the plaintiff to give permission to stay in the suit schedule property hence, the defendant is residing in the said premises since nine years. It is also the case of the plaintiff that without having any right, title or interest over the suit schedule property, in order to harass the plaintiff, the defendant filed a suit in O.S.No.906/2005 in respect of the suit schedule property. The said suit came to be dismissed and against the said dismissal order, the defendant preferred an appeal and the said appeal also came to be dismissed on 17/1/2012. Now, the sons of the plaintiff require the suit schedule property to reside therein. Hence, the plaintiff requested the defendant to vacate and handover the suit schedule property and also issued legal notice on 16/4/2012 calling upon the defendant to vacate and handover the suit schedule property and the said notice was served on the defendant but he neither complied nor replied to the notice. Hence, without any other alternative, the suit was filed. 4. In pursuance of suit summons, the defendant appeared before the Court and filed the written statement denying the averments made in the plaint. The defendant contend that he is the absolute owner of the suit schedule property which was granted to him by the Land Tribunal in K.L.R.M.4262/79 dtd. 27/9/1980 and he is in lawful possession and enjoyment of the same. The defendant also constructed a house in the suit schedule property. The defendant contend that he is the absolute owner of the suit schedule property which was granted to him by the Land Tribunal in K.L.R.M.4262/79 dtd. 27/9/1980 and he is in lawful possession and enjoyment of the same. The defendant also constructed a house in the suit schedule property. The contention of the defendant that the plaintiff has shown wrong boundaries to the suit schedule property. 5. The Trial Court after considering both oral and documentary evidence placed on record by the parties, framed the issues and given the opportunity to the respective parties to lead their evidence and after considering the evidences of the parties and on perusal of the documents placed before it, decreed the suit declaring that the plaintiff is the absolute owner of the suit schedule property and directed the defendant to handover the vacant possession of the suit schedule property in favour of the plaintiff within three months and also directed the defendant to pay the damages at the rate of Rs.1, 000.00 p.m. from the date of the suit till vacating the suit schedule property. 6. Being aggrieved by the judgment and decree of the Trial Court, an appeal was preferred by the defendant. The First Appellate Court having considered the material available on record formulated the points and with regard to the granting of relief of declaration, the First Appellate Court comes to the conclusion that title has not been proved however while answering point No.2, concurrent with the finding of the Trial Court that the defendant is in permissive possession of the suit schedule property and taken note of the admission given by the defendant in the suit filed by him earlier wherein he categorically admitted that he is in permissive possession. Hence, confirmed the order of the Trial Court. Being aggrieved by the judgment and decree of the First Appellate Court, the present second appeal is filed before this Court. 7. The learned counsel appearing for the appellants would vehemently contend that even though voter list was produced, both the Courts have not considered the same hence, both the Courts have committed an error in granting the relief of possession and the same is erroneous. 7. The learned counsel appearing for the appellants would vehemently contend that even though voter list was produced, both the Courts have not considered the same hence, both the Courts have committed an error in granting the relief of possession and the same is erroneous. The counsel would vehemently contend that this Court has to frame the substantial question of law with regard to whether the First Appellate Court was right in directing the defendant to handover the vacant possession of the suit schedule property after holding issue No.1 as negative and both the Courts are right in holding that the defendant is in permissive possession of the suit schedule property by relying Ex.P5 which is alleged deposition of defendant in O.S.No.906/2005 though the said admission in the deposition has not been confronted to the defendant in his cross-examination as per Sec. 33 of the Indian Evidence Act. Hence, it requires interference by this Court. 8. Heard the counsel for the appellant and also perused the material available on record. The plaintiff before the Trial Court got marked the document at Ex.P5 that is the deposition of the defendant in O.S.No.906/2005 and the said suit was filed by the appellant herein and in the said suit, the appellant herein had given the categorical admission that he has been in permissive possession of the property belonged to the plaintiff. Hence, considering the said admission by the defendant itself, the Trial Court also comes to the conclusion that the defendant is in permissive possession of the property belonged to the plaintiff. The counsel for the appellant would vehemently contend that no specific year has been mentioned with regard to the permissive possession. But it is the claim of the plaintiff that the defendant has been in possession of the said suit house from last nine years. The counsel for the appellant would vehemently contend that no specific year has been mentioned with regard to the permissive possession. But it is the claim of the plaintiff that the defendant has been in possession of the said suit house from last nine years. The First Appellate Court while answering with regard to the permissive possession, extracted the relevant portion of chief examination of the defendant in the suit bearing O.S.No.906/2005 and in the cross-examination, he categorically admitted that he is residing in one of the room of the defendant's house and defendant's door number is 225 and he also categorically admitted that he is in permissive possession of the property belonged to the defendant in the suit bearing O.S.No.906/2005 and he is not staying in Door No.225/1 and he is not having any right in respect of the property bearing door No.225. The First Appellate Court on re-appreciation of material on record comes to the conclusion that the appellant/defendant is in possession of the plaint schedule property with the permission of the respondent/plaintiff and answered point No.2 as negative and affirmed the judgment of the Trial Court. 9. Having considered the material available on record it discloses that there is a clear admission on the part of the appellant/defendant that he is in permissive possession of the property belonged to the plaintiff thus, the admitted fact need not be proved again. The counsel for the appellants would vehemently contend that he also produced the voter list wherein it clearly discloses that he is not in possession of the suit schedule property and the said contention cannot be accepted. The other contention of the appellants' counsel that the said admission is a stray admission and the same cannot be accepted. The appellant in his cross-examination in O.S.No.906/2005 admitted that he is in permissive possession of the suit schedule property. The counsel for the appellant submits that the said document has not been confronted and the same cannot be accepted when the plaintiff himself has produced the document and the same was marked as Ex.P5 in the suit and the same is not controverted in the cross-examination. The counsel for the appellant submits that the said document has not been confronted and the same cannot be accepted when the plaintiff himself has produced the document and the same was marked as Ex.P5 in the suit and the same is not controverted in the cross-examination. When the permissive possession has been admitted by the appellant herein, I do not find any error committed by the Trial Court as well as First Appellate Court in coming to the conclusion that the appellant herein is in permissive possession and passed an order to hand over the possession in favour of the respondent herein. Hence, I do not find any perversity in the finding of both the Courts in coming to such a conclusion. Thus, no grounds are made out to admit the appeal and to frame the substantive question of law invoking Sec. 100 of CPC. 10. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed. In view of dismissal of the main appeal, I.A.s if any, do not survive for consideration and the same stand disposed of.