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2023 DIGILAW 658 (KAR)

Kempatti Papaiah v. Akkaiamma

2023-04-21

M.G.UMA

body2023
JUDGMENT 1. The legal representatives of the defendant are impugning the judgment and decree dtd. 14/7/2014 passed in OS No.6421 of 1997 on the file of the learned XIV Additional City Civil Judge, Bengaluru (CCH-28)(hereinafter referred to as 'the Trial Court' for brevity), decreeing the suit of the plaintiffs by declaring them as the owners of the suit schedule property and directing the original defendant to vacate and deliver the possession of suit schedule 'B' property to the plaintiffs, within three months from the date of decree. 2. For the sake of convenience, the parties are referred to as per their rank and status before the Trial Court. 3. Brief facts of the case are that, the plaintiffs filed the suit OS No.6421 of 1997 against the defendant before the Trial Court seeking declaration that the plaintiffs are the absolute owners of the suit schedule property, to direct the defendant to vacate and deliver the vacant possession of suit schedule 'B' property and to direct the defendant to pay damages at the rate of Rs.200.00 per month from the date of suit till delivery of possession of the plaint 'B' suit schedule property. 4. Schedule 'A' appended to the plaint describes the property bearing Khaneshumari No.26 with house bearing No.27/1, 27/2 of Yellukunte Village, Begur Hobli, Bengaluru, measuring East to West on the Northern side 100 feet and on the Southern side 60 feet and North to South 120 feet, with the Mangalore tile-roofed house and asbestos sheets roofed house and vacant space with the boundaries mentioned therein. Schedule 'B' describes the portion of schedule 'A' property i.e., the house with asbestos sheet roofing measuring East to West 25 feet, North to South 20 feet, with the boundaries mentioned therein. 5. The plaintiffs contended that plaintiff No.1 is the wife of late Munishamappa and plaintiff Nos.2 and 3 are their sons. Munishamappa is the son of one Narayani. Schedule 'A' property is the absolute property of the plaintiffs, as the same was inherited by them. The plaintiffs have constructed a house measuring East to West 25 feet and North to South 20 feet with asbestos sheet-roof-build about 10 years back. The defendant who is the native of Kempatti Village came along his family members about 9 years back and requested the plaintiffs to accommodate him and his family members in the house referred to above. The plaintiffs have constructed a house measuring East to West 25 feet and North to South 20 feet with asbestos sheet-roof-build about 10 years back. The defendant who is the native of Kempatti Village came along his family members about 9 years back and requested the plaintiffs to accommodate him and his family members in the house referred to above. Since the defendant was in difficulty, the plaintiffs permitted him and his family members to reside in the house described in 'B' schedule. The defendant agreed to vacate suit 'B' schedule property immediately after getting alternative house. Thus, it is contended that the defendant is in permissive possession of 'B' schedule property. Apart from that, the defendant has no manner of right, title or interest over 'B' schedule or on 'A' schedule property. 6. It is contended that the defendant later acquired house properties at Yellukunte Village and then the plaintiffs demanded to vacate and hand over the possession of 'B' schedule property. The defendant agreed to vacate the property, but went on postponing the same. During July 1997, the plaintiffs came to know that the defendant is making effort to get khata in respect of 'B' schedule property in his name with Town Municipal Council, Bommanahalli. Defendant started proclaiming that he is having right over the 'B' schedule property. The plaintiffs got issued legal notice to the Town Municipal Council, Bommanahalli calling upon it not to effect change of khata in respect of 'B' schedule property in the name of the defendant. Immediately thereafter on 13/8/1997, the defendant came along with his henchmen, trespassed over 'A' schedule property and started digging the earth on the western side of 'B' schedule property in order to put up unauthorised construction. The plaintiffs, however, prevented the defendant from doing any illegal construction and filed a complaint with Madiwala Police Station. Since the police have not taken any action, the plaintiffs have filed the suit seeking declaration of their title and for possession of 'B' schedule property. 7. The defendant has appeared before the Trial Court and filed his written statement denying the contention taken in the plaint. It is contended that the suit is bad for non joinder of necessary parties. The contention of plaintiff No.1 that she is the wife of Munishamappa and plaintiff Nos.2 and 3 are her sons and Munishamappa is the son of Narayani is admitted. It is contended that the suit is bad for non joinder of necessary parties. The contention of plaintiff No.1 that she is the wife of Munishamappa and plaintiff Nos.2 and 3 are her sons and Munishamappa is the son of Narayani is admitted. The defendant contended that plaintiff No.1 is having two daughters and they are not arrayed as parties. The plaintiffs are not having any right, title or interest over the schedule property and that the documents relied on by the plaintiffs are concocted and it will not confer any right over the schedule property. The measurements, numbers and boundaries of the schedule property are all imaginary. 8. It is contended that Smt.Papamma, the wife of defendant was born and brought up in Yellukunte Dakale, Mangammanapalya and she was given in marriage to the defendant about 35 to 40 years ago. The defendant, his wife and children came to Yellukunte Village and stayed in their relative's house, later constructed a house in the Government quarters. Papamma purchased the site measuring East to West 62 feet and North to South 25 feet from Mari Yellappa, who is her sister's husband under the sale agreement dtd. 25/9/1981. Mari Yellappa and his children have put the defendant in possession of the property under the agreement of sale and thereafter the defendant constructed the house with asbestos sheet roofing. Later, he obtained electricity connection. In one portion of the building, Papamma along with defendant was residing. In two other portions, Yellappa and Madamma started residing. The property was assessed for revenue in the name of Papamma and she was paying the revenue. Thus, it is contended that the wife of the defendant was in exclusive possession and enjoyment of the property ever since 1981. The plaintiffs are claiming the property which is in possession of Papamma with an intention to make wrongful gain. The plaintiffs have no authority to seek declaration and possession of any of the properties. Therefore, the defendant prayed for dismissal of the suit with costs. 9. On the basis of these pleadings, the Trial Court framed the following issues for consideration: "1. Whether the valuation of the suit property and Court Fee Paid are not sufficient? 2. Do the plaintiffs prove their title to the suit B-schedule Property? 3. Do they prove that the defendant was in possession of the B-schedule property as a license under them? 4. Whether the valuation of the suit property and Court Fee Paid are not sufficient? 2. Do the plaintiffs prove their title to the suit B-schedule Property? 3. Do they prove that the defendant was in possession of the B-schedule property as a license under them? 4. Do they prove cause of action for the suit? 5. Are they entitled to possession of suit B-schedule Property? 6. Are they entitled to future damages at Rs.200.00 p.m.? 7. What order or decree?" 10. Plaintiff No.3 was examined as PW1 and examined PW2 and got marked Exs.P1 to P30 in support of their contention. The defendant examined himself as DW1 and got marked Exs.D1 to 18 in support of his defence. The Trial Court after taking into consideration all the materials on record, proceeded to dismiss the suit of the plaintiffs as not maintainable on 22/8/2005. Being aggrieved by the same, the plaintiffs have preferred RFA No.1534 of 2005 before this Court. The said appeal came to be allowed in part setting aside the impugned judgment and decree and the matter was remitted back to the Trial Court for fresh disposal. 11. After remanding the matter, the plaintiffs got marked Exs.P31 to P66 and the defendant got marked Exs.D19 to D83. After taking into consideration all the materials on record, the Trial Court answered issue No.1 in the Negative, issue Nos.2 to 5 in the Affirmative and decreed the suit of the plaintiffs declaring that the plaintiffs are the owners of the suit schedule property and directed the defendant to vacate and deliver the possession of suit 'B' schedule property within three months. A separate enquiry with regard to the damages was ordered to be held under Order XX Rule 12 of CPC. 12. Being aggrieved by the same, the legal representatives of the defendant are before this Court. 13. Heard Sri V Rajanna, learned counsel for the appellants and Sri K Plaintiff Jayasimha, learned counsel for the respondents. Perused the materials including the Trial Court records. 14. Learned counsel for the appellants contended that the plaintiffs have not proved their ownership over schedule 'A' property and they failed to prove that the defendant is in possession of the property only since 1991. In fact, the defendant is in possession and enjoyment of the schedule property since 1981. Perused the materials including the Trial Court records. 14. Learned counsel for the appellants contended that the plaintiffs have not proved their ownership over schedule 'A' property and they failed to prove that the defendant is in possession of the property only since 1991. In fact, the defendant is in possession and enjoyment of the schedule property since 1981. The revenue documents stands in the name of Papamma, who is none other than the wife of the defendant. The defendant is in possession and enjoyment of the land measuring 25 x 62 feet and not 25 x 20 feet as contended by the plaintiffs. 15. Learned counsel submitted that an agreement for sale was executed in favour of Papamma in respect of the land measuring 25 x 62 feet by Mari Yellappa who is the owner of the property. She was also put in possession of the said property under the agreement for sale. The said agreement of sale was produced before the Trial Court. Since the same was not registered, the Trial Court vide order dtd. 3/7/2013 sent the agreement dtd. 25/9/1981 for impounding by collecting stamp duty and penalty to the District Registrar. The said document was not returned by the District Registrar after collecting stamp duty and penalty. The Trial Court has not made any effort to get back the document, but proceeded to decree the suit of the plaintiffs without affording an opportunity to the defendant to put forth his contention. 16. Learned counsel further submitted that Papamma being the owner of the schedule property was paying the revenue and also took electricity connection. Exs.D1 to 19 are the documents which evidence this fact. The documents that are relied on by the plaintiffs do not prove their title over the schedule property. There is absolutely nothing on record to prove that the defendant is in permissive possession of the schedule 'B' property. Even though, the plaintiffs relied on Exs.P1 and P2 - the mortgage deed, there is nothing on record to show that the mortgage was redeemed. The Trial Court committed an error in ignoring all these facts and circumstances and decreeing the suit of the plaintiffs. Therefore, learned counsel prayed for allowing the appeal by setting aside the impugned judgment and decree and dismiss the suit of the plaintiffs with costs. 17. The Trial Court committed an error in ignoring all these facts and circumstances and decreeing the suit of the plaintiffs. Therefore, learned counsel prayed for allowing the appeal by setting aside the impugned judgment and decree and dismiss the suit of the plaintiffs with costs. 17. Per contra, learned counsel for the respondents opposing the appeal submitted that the only dispute is with regard to schedule 'B' property. The plaintiffs are relying on the mortgage deed which is produced as per Exs.P1 and P2 dtd. 27/7/1942. The schedule in Ex.P2 tallies with the description of the schedule property in the plaint. Ex.P66 is the certified copy of the redemption of mortgage dtd. 11/6/1952. The recital in Ex.P66 makes it clear that it is the redemption of mortgage. There is reference to Ex.P1 in Ex.P66. Therefore, it is clear that the property that was mortgaged in favour of Doddamuniswamappa by Narayana and his wife Sambakka along with their son Munishamappa was redeemed in favour of Muniswamy and his son Ramaswamy. The boundaries mentioned in the document naturally differs as the property surrounding the schedule property were owned by different persons as Ex.P1 and P66 are the documents of year 1942 and 1952 respectively. Thus, the plaintiffs have proved their ownership over the schedule property. 18. Learned counsel further submitted that the defendant is in permissive possession of the schedule property. Even though, the defendant contended that his wife acquired title over the property, no such documents are produced before the Trial Court. There is no title deed in favour of the defendant or his wife. Under such circumstances, the Trial Court rightly decreed the suit of the plaintiffs. There are no reasons to interfere with the impugned judgment and decree. Therefore, he prays for dismissal of the appeal with costs. 19. In view of the rival submissions made by learned counsel for both the parties, the point that would arise for my consideration is: "Whether the impugned judgment and decree passed by the Trial Court suffers from perversity or illegality and calls for interference by this Court?" My answer to the above point is in 'Negative' for the following: REASONS 20. In view of the rival submissions made by learned counsel for both the parties, the point that would arise for my consideration is: "Whether the impugned judgment and decree passed by the Trial Court suffers from perversity or illegality and calls for interference by this Court?" My answer to the above point is in 'Negative' for the following: REASONS 20. It is the contention of the plaintiffs that they being the wife and children of late Munishamappa are the absolute owners of schedule 'A' property and constructed the house measuring 25 x 20 feet in a portion of the property which is morefully described as 'B' schedule. The defendant requested to accommodate him and his family and accordingly, he was permitted to occupy the asbestos sheet roof building about 9 years earlier to filing of the suit. The defendant started concocting the documents and started asserting his right over the property and therefore, the plaintiffs filed the suit for declaration of their title over schedule 'A' property and directing the defendant to hand over the possession of the premises situated on schedule 'B' property. 21. It is the contention of the defendant that his wife Papamma purchased the vacant site measuring 62 x 25 feet from Mari Yellappa who is her sister's husband under the sale agreement dtd. 25/9/1981. Muni Yellappa and his children executed the agreement of sale and put Papamma in possession of the property. Immediately thereafter, she constructed asbestos sheet roofed house, obtained electricity and started residing there with her family. The title of the plaintiffs is denied. On the other hand, the defendant asserted the right of his wife over the schedule property measuring 62 x 25 feet. 22. The rival contentions taken by the parties disclose that the defendant along with his family members being in possession of the house morefully described in 'B' schedule is an admitted fact. However, according to the plaintiffs the said house is situated on the site measuring 25 x 20 feet, whereas according to the defendant the site measures 62 x 25 feet. 23. The plaintiffs are asserting right over the schedule property. They place reliance on Ex.P1 the original mortgage deed, Ex.P2 - certified copy of the said mortgage deed dtd. 27/7/1942 executed by Narayaniga, his wife Sambakka and their son Muniswamy in favour of one Doddamuniswamappa for Rs.200.00. 23. The plaintiffs are asserting right over the schedule property. They place reliance on Ex.P1 the original mortgage deed, Ex.P2 - certified copy of the said mortgage deed dtd. 27/7/1942 executed by Narayaniga, his wife Sambakka and their son Muniswamy in favour of one Doddamuniswamappa for Rs.200.00. The description of schedule 'A' in the plaint tallies with the description found in the mortgage deed. The plaintiffs also rely on Ex.P34 - the sale deed dtd. 25/1/1954 executed by Venkatanna @ Chikka Abbaiahreddy in favour of Muniswami for a consideration of Rs.200.00. The plaintiffs have produced Ex.P33 the encumbrance certificate in respect of the schedule property, where there is reference to three registered documents, the first document is dtd. 27/7/1942, the mortgage deed executed by Narayananiga, Sambakka and Munishami in favour of Doddamuniswamappa, which is as per Exs.P1 and 2. The second encumbrance refers to the sale deed dtd. 11/6/1952 executed by Munishami in favour of Venkatanna @ Chikka Abbaiahreddy. The third encumbrance is with regard to similar sale deed dtd. 25/1/1954 executed by Venkatanna @ Chikka Abbaiahreddy in favour of Munishami for a consideration of Rs.200.00. The first encumbrance in Ex.P33 refers to the mortgage deed Exs.P1 or 2 and third encumbrance refers to Ex.P34. The plaintiffs have also produced Ex.P66 which is referred to in the encumbrance certificate as sale deed by Munishami in favour of Venkatanna @ Chikka Abbaiahreddy. These documents Exs.P1, P34 and P66 coupled with Ex.P33 support the contention of the plaintiffs regarding their ownership over the schedule property. 24. When the plaintiffs are successful in proving their title over the schedule property and when admittedly, the defendant is in possession of the 'B' schedule property, it is for the defendant to prove his defence that the schedule 'B' property measuring 25 x 62 feet is owned by his wife Papamma. Even though a specific defence was raised that Papamma got the property under an agreement for sale from one Mari Yellappa, the defendant has not produced any material either to prove the ownership of Mari Yellappa or to prove the ownership of Papamma. 25. It is contended by the defendant that Mari Yellappa executed an agreement of sale in favour of Papamma and thus Papamma was put in possession of the house property which is now being claimed by the plaintiffs. The said agreement of sale is not marked before the Trial Court. 25. It is contended by the defendant that Mari Yellappa executed an agreement of sale in favour of Papamma and thus Papamma was put in possession of the house property which is now being claimed by the plaintiffs. The said agreement of sale is not marked before the Trial Court. The order sheet discloses that the said agreement for sale coupled with possession of the immovable properties is not a registered document and therefore, the same was forwarded for impounding. The grievance of the defendant is that the Trial Court has not received back the document after impounding and he was not provided an opportunity to put forth his contention by marking the said document. 26. There is absolutely nothing on record to show as to what had happened before the authority which is authorised to impound the document after receiving the same. The defendant should have appeared before the impounding authority to pay the duty and penalty to impound the document. The fact remains that the document was not received back by the Trial Court after impounding. It appears that the defendant has also not brought this fact to the notice of the Trial Court while disposing of the suit. Only at the time of addressing the argument before this Court, such a defence was taken to contend that the defendant was not given an opportunity to get mark the agreement for sale said to have been executed by Mari Yellappa in favour of Papammna, the wife of the defendant. No efforts whatsoever seems to have been made by the defendant to impound the document and to get it marked before the Trial Court. Even otherwise, if we assume that there is such an agreement for sale executed by Mari Yellappa in favour of Papamma as contended by the defendant, the defendant has not placed any material to prove the ownership of Mari Yellappa in respect of the schedule property. Unless the ownership of Mari Yellappa is proved, no importance could be attached to such an agreement for sale executed in favour of Papamma. Even though the agreement for sale is said to be dtd. 25/9/1981 and the suit came to be filed in 1997. Admittedly, the wife of the defendant never sought for specific performance of the contract against Mari Yellappa. Even though the agreement for sale is said to be dtd. 25/9/1981 and the suit came to be filed in 1997. Admittedly, the wife of the defendant never sought for specific performance of the contract against Mari Yellappa. Under such circumstances, the defendant cannot resist the claim of the plaintiffs for declaration and possession of the schedule property. 27. It is pertinent to note that the defendant has never raised the plea of adverse possession against the plaintiffs. When the plaintiffs are successful in proving their ownership over the property and when admittedly the defendant is in possession of schedule 'B' property, the plaintiffs are entitled for the relief claimed in the suit. The defendant is also not successful in proving his possession over an area measuring 25 x 62 feet, except producing some of the revenue documents i.e., Ex.D2. But it is relevant to mention that Ex.D2 is dtd. 16/1/1998 issued by the Town Municipality, Bommanahalli which is after filing of the suit by the plaintiffs. The defendant is also relying on the other documents which are all either revenue documents or the receipt issued by KEB or KPTCL. These documents are sufficient to prove the possession of the property by the defendant, but they will not create any title in favour of the defendant or his wife Papamma. 28. The defendant contended that there is no cause of action of the suit filed by the plaintiffs. When the plaintiffs proved their ownership over the schedule property and when the defendant deny such title and refuse to vacate the possession of the property, the plaintiffs will have the cause of action for the suit seeking declaration and possession. Therefore, I am of the opinion that the plaintiffs are successful in proving their claim over the schedule property and they are entitled for the relief of declaration and possession. 29. I have gone through the impugned judgment and decree passed by the Trial Court. I do not find any perversity or illegality in the impugned judgment and decree which calls for interference by this Court. Hence, I answer the above point in the Negative and proceed to pass the following: ORDER (i) The appeal is dismissed with costs. (ii) The judgment and decree dtd. 14/7/2014 passed in OS No.6421 of 1997 on the file of the learned XIV Additional City Civil Judge, Bengaluru (CCH-28), is hereby confirmed. Hence, I answer the above point in the Negative and proceed to pass the following: ORDER (i) The appeal is dismissed with costs. (ii) The judgment and decree dtd. 14/7/2014 passed in OS No.6421 of 1997 on the file of the learned XIV Additional City Civil Judge, Bengaluru (CCH-28), is hereby confirmed. Registry is directed to send back the Trial Court records along with copy of this judgment.