JUDGMENT : C.M. Joshi, J. Aggrieved by the judgment and decree dated 13.04.2007 passed in O.S.No.37/2000 by the learned Civil Judge (Sr.Dn.) and Prl. JMFC, Tarikere, the defendant has approached this Court in appeal. 2. The parties would be referred to as per their ranks before the trial Court for the sake of convenience. 3. Brief facts of the case of the plaintiffs are as below: The plaintiffs-P.Ramadas Kamath and P.Ganapathi Kamath approached the trial Court seeking a relief of declaration that they are the absolute owners of the plaint schedule house property; for vacant possession of the same; arrears of rent accrued from September-1998 to December-1999 amounting to Rs. 6,400/- and for damages for illegal occupation of the suit premise by the defendant till the possession is handed over to them. The suit property is described to be a dwelling house with appertaining open space situated at Balehonnuru Town of B.Kanabur Village, Panchayat No.242/97-98 bounded by V.P.Road on East, building site belonging to Dayananda on West, house No.241/15 and vacant land of the plaintiffs on the North and South. 4. In the plaint, it was contended that the suit property belonged to one K.P.Mukund Prabhu and it was held by the father of the plaintiffs-Lakshmana Kamath on permanent leasehold rights. Later, the said Mukund Prabhu executed his last Will dated 16.05.1975 and a registered codicil dated 31.01.1986 bequeathing the suit schedule property and some other non-agricultural properties to the plaintiffs. Therefore, the plaintiffs are the absolute owners of the suit schedule property. It was alleged that the defendant is in occupation of the suit schedule house on a monthly rent of Rs. 400/- and since the defendant failed to pay the agreed rent since September-1998, they were constrained to issue a legal notice dated 02.08.1999 terminating the tenancy and calling upon the defendant to vacate and handover vacant premises of suit schedule property and to pay the arrears of the rent. Despite receiving the said notice, it was neither replied nor complied by the defendant and therefore, the plaintiffs filed the suit before the trial Court for the above said reliefs. 5. After service of summons, the defendant appeared before the trial Court through his counsel and filed written statement. 6. Despite receiving the said notice, it was neither replied nor complied by the defendant and therefore, the plaintiffs filed the suit before the trial Court for the above said reliefs. 5. After service of summons, the defendant appeared before the trial Court through his counsel and filed written statement. 6. The defendant denied that father of the plaintiffs-Lakshmana Kamath was a permanent lessee of the suit schedule property and also denied that K.P.Mukund Prabhu had executed the Will or the codicil bequeathing the suit schedule property to the plaintiffs. He also denied that he was the tenant in occupation of the suit schedule property on a monthly rent of Rs. 400/- and that he had defaulted in paying the rents. Inter alia, it was contended that he had replied to the notice issued by the plaintiffs. He set up a contention that the suit schedule property belonged to one T.V.Rama Rao and the defendant has taken the suit schedule property on lease from T.V.Rama Rao and his son Sathyanarayana on the basis oral agreement to pay a rent of Rs. 450/- per month, about 10 years back. It was contended that the property stood in the name of Seethamma W/o Rama Rao and she was paying the taxes through the defendant. Therefore, contending that the suit is barred by time and that the plaintiffs do not have any title to the property, sought dismissal of the suit. In para 9 of the written statement, it was contended that the defendant has acquired the title by long possession and enjoyment of the property with the consent of the real owners and as such, the suit is liable to be dismissed. 7. On the basis of the above pleadings, the trial Court framed the following issues: "1. Whether the plaintiffs prove that they are the absolute owners of the suit schedule property? 2. Whether the plaintiffs prove that the defendant is in the occupation of the suit schedule property on monthly tenancy of Rs. 400/-? 3. Whether the plaintiffs prove that the defendant is in arrears of rent payable from September 1998 to December 1999, amounting to Rs. 6,400/- and he is entitled to recover the same? 4. Whether the plaintiffs prove that the tenancy of the defendant has been terminated by issuance of registered legal notice dt. 02.08.1999? 5. 400/-? 3. Whether the plaintiffs prove that the defendant is in arrears of rent payable from September 1998 to December 1999, amounting to Rs. 6,400/- and he is entitled to recover the same? 4. Whether the plaintiffs prove that the tenancy of the defendant has been terminated by issuance of registered legal notice dt. 02.08.1999? 5. Whether the plaintiffs prove that they are entitled to have vacant possession of the suit schedule property from the defendant? 6. Whether the plaintiffs prove that they are entitled for mesne profits? 7. Whether the defendant proves that one Sathyanarayana Kamath S/o T.V.Rama Rao of Balehonnur is the owner of the suit schedule property and he has taken the said property from his on lease, agreeing to pay the rent of Rs. 450/- per month? 8. Whether the defendant proves that the khata of the suit schedule property is standing in the name of one Seethamma W/o Rama Rao? 9. To what decree or order the parties are entitled to?" 8. In order to prove their case, plaintiff No.2 was examined as PW.1 and Exs.P1 to P11 were marked in evidence. The defendant was examined as DW.1 and one Sathyanarayana was examined as DW.2 and EXs.D1 to 8 were marked in evidence. 9. After hearing both the sides, the trial Court answered issue Nos.1 to 6 in the affirmative and issue Nos.7 and 8 in the negative and decreed the suit as prayed by the plaintiffs. 10. The said judgment and decree is challenged by the defendant in this appeal. 11. On issuance of notice, respondents/plaintiffs appeared before this Court through their counsel. During the pendency of this appeal, both the respondents died and their legal heirs are brought on record. 12. On admitting the appeal, the trial Court records have been secured and heard the arguments by learned Counsel Sri. N.Shankar Narayana Bhat for the appellant and Sri. D.R.Sundaresh, for the LRs of respondents. 13. The learned counsel appearing for the appellant would argue that none of the documents produced by the plaintiffs would show their title to the suit schedule property. It is submitted that there is absolutely no evidence to show that there exists a relationship of landlord and tenant and the trial Court was not justified in holding that the appellant was the tenant. It is submitted that there is absolutely no evidence to show that there exists a relationship of landlord and tenant and the trial Court was not justified in holding that the appellant was the tenant. It is contended that the will or the codicil is not proved as required under law and that there is no documentary evidence which would show the title of the suit schedule property. It is submitted that the trial Court depended upon the tax demand extracts which could not have been the documents of title. The defendant specifically contended that the suit schedule property belonged to Seethamma and DW.2 in categorical terms stated that he had allowed the appellant to stay as a tenant. Therefore, the trial Court erred in law in not taking into consideration that in the absence of relationship of the landload and tenant between the parties, the Court below gets no jurisdiction to pass an order of ejectment. He submits that in Ex.P5, in the certified copy of the lease deed executed by K.P.Mukund Prabhu, there is no whisper about the village- B.Kanabur but the plaint says the suit property is in B.Kanabur. He pointed out the discrepancies in the description of the property in Ex.P5, the plaint, the revenue records to submit that there is no nexus between them. Therefore, he has sought for dismissal of the suit by allowing the appeal. 14. Per contra, learned counsel appearing for the respondents has submitted as well as by filing written arguments that even in the absence of the Will, the plaintiffs are the owners of the suit schedule property as they inherited the permanent leasehold rights through Ex.P5. They being sons of Lakshmana Kamath are entitled for all the rights, title and interest held by Lakshmana Kamath under Ex.P5. It is submitted that the defendant as well DW.2-Sathyanarayana do not explain how Seethamma W/o T.V.Rama Rao acquired the title over the suit schedule property and the panchayat records produced by the plaintiffs show the name of the plaintiffs or their predecessors for long time much prior to the filing of the suit. It is submitted that the description of the property acquired by Seethamma and T.V.Rama Rao is totally different as admitted by DW.2 in the cross-examination. Moreover, the defendant has made a feeble attempt to claim adverse possession without admitting the title of the plaintiffs or DW.2. It is submitted that the description of the property acquired by Seethamma and T.V.Rama Rao is totally different as admitted by DW.2 in the cross-examination. Moreover, the defendant has made a feeble attempt to claim adverse possession without admitting the title of the plaintiffs or DW.2. Therefore, the rule of preponderance of probability would indicate that the plaintiffs have better title than that of the defendant and DW.2; they having failed to show how they had acquired title over the property. Therefore, the trial Court was justified in rejecting the testimony of DWs.1 and 2 and in decreeing the suit. 15. After hearing the arguments, the points that arise for consideration in this appeal are as below: i) Whether the plaintiffs have proved their title over the suit schedule property? ii) Whether the defendant has established that the suit schedule property was belonging to Sathyanarayana S/o T.V.Rama Rao and Seethamma and he was a tenant under them? iii) Whether the trial Court is justified in holding that the plaintiffs are entitled for the arrears of the rent and mesne profit? Re. Point Nos.1 and 2: 16. The plaintiffs claimed their title over the suit schedule property on the basis of the codicil as well as the lease deed, which are at Exs.P4 and P5. As contended by the defendant, the codicil is not proved by examining the attesting witnesses to the same. However, it is relevant to note that the Ex.P4 mention that P.Mukund Prabhu was the owner of non-agricultural, immovable properties of Balehonnuru Town and he had leased the same to P.Lakshmana Kamath as moolageni tenant. The date of the agreement is also mentioned as 29.06.1941. It also mention that the mooli rights of P. Mukund Prabhu would devolve upon, the plaintiffs who are the children of Lakshmana Kamath. 17. Ex.P5, the certified copy of the permanent lease deed dated 29.06.1941 would show that the house list No.122, 123, 125 and 126 are described in detail and their boundaries are also mentioned in the same. It is pertinent to note that several properties held by P. Ramadas Kamath was subject matter of the permanent lease in favour of Lakshmana Kamath. Obviously, it describes the boundary by referring to the owners of the adjoining properties as it existed in the year 1941. It is pertinent to note that several properties held by P. Ramadas Kamath was subject matter of the permanent lease in favour of Lakshmana Kamath. Obviously, it describes the boundary by referring to the owners of the adjoining properties as it existed in the year 1941. It is pertinent to note that one of the property, mentioned as house list No.126, describe that on the western side, there is a Church and the property of one D'souza. 18. Exs.P6 to P8 are the tax assessment register extracts of B.Kanabur Gram Panchayat of the year 1999- 2000 to 2001-02 pertaining to various properties standing in the name of P.Ramadas Kamath. The Panchayat Nos.241, 242, 244 are also the properties held by him along with several other properties. Exs.P9 and 10 happen to be the Panchayath Tax Assessment Register Extracts pertaining to the property No.241 and 242 from the year 1983-84 to 1999-2000. Therefore, there cannot be any doubt that P.Ramadas Kamath was the owner of the property, though it was leased to Lakshmana Kamath and his name appeared in the panchayat records since the year 1983-84. 19. Ex.P11 is also the Panchayath Tax Assessment Register Extract pertaining to the property No.242a, corresponding to the years 1983-84 to 1994-95 and it stands in the name of T.V.Rama Rao and after his death somewhere in the year 1990-1991, it stood in the name of Seethamma. 20. The documents produced by the defendant at Exs.D1 to D7 the demand bills by panchayat and tax paid receipts show that the property number is not properly mentioned but it was in respect of the property situated at Hanuman Galli, Balehonnuru. Evidently, they were issued by the Secretary of B.Kanabur Gram Panchayat. None of these bills mention the property number. They only mention the Khata number and bill number. Ex.P8 is a notice for payment of water bill. 21. In the light of the above documents, if we examine the ocular evidence of PW.1, it would show that he categorically admit that there is no documentary evidence to show the tenancy agreement with the defendant. In the cross-examination, it is elicited that he was paying the taxes on behalf of Ramadas. The suggestion that the suit property was belonging to Rama Rao and then, Seethamma is denied by him. In the cross-examination, it is elicited that he was paying the taxes on behalf of Ramadas. The suggestion that the suit property was belonging to Rama Rao and then, Seethamma is denied by him. It is elicited that the defendant had paid the rent upto September 1998 but he admit that he do not have any document. There is nothing which would discredit the testimony of the witness. 22. The perusal of the ocular evidence of DW.1 would show he do not know how Rama Rao had acquired the suit schedule property. He says that Sathyanarayana Kamath had given him the property for rent but he do not have any document to show the same. He admits the receipt of the legal notice terminating the tenancy but he is unable to say whether he had replied it. The notice received by him, issued by the plaintiffs is marked at Ex.P2. Regarding the description, he says that on the North and South, the remaining property belonging to the plaintiffs is situated. He pleads ignorance about the permanent lease deed and the codicil. 23. The evidence of DW.2 would show that he had given the suit schedule property to the defendant on a monthly rent of Rs. 450/- and it was an oral agreement. In the cross-examination, it is elicited that he do not know how Seethamma and Rama Rao had acquired the suit schedule property. He pleads ignorance as to who is Mukund Prabhu. He also pleads ignorance about the Will and codicil executed by the said Mukund Prabhu in favour of Lakshmana Kamath. He admits that even though he is a Government Servant, working as an Agricultural Officer, he had not shown the rental income in the Income Tax Returns or had declared the suit schedule property as an asset in the Assets and Liabilities Statement. Regarding the description, he says that the suit schedule property is bound by Panchayat Road on the East, Church on the West, House of Shamshunnisa on the North and a garden on the South. Evidently, this property has no semblance of similarity with the suit schedule property. 24. From the perusal of the above evidence on record, it is clear that the house Nos.241 and 242 of Balehonnuru, which is in B.Kanabur Village limits, is standing in the name of Ramadas Kamath, who is the plaintiff No.1 since the year 1983-84. Evidently, this property has no semblance of similarity with the suit schedule property. 24. From the perusal of the above evidence on record, it is clear that the house Nos.241 and 242 of Balehonnuru, which is in B.Kanabur Village limits, is standing in the name of Ramadas Kamath, who is the plaintiff No.1 since the year 1983-84. The claim of the plaintiffs that they inherited the permanent lease hold rights from their father Lakshmana Kamath and later, they acquired title under a Will and codicil executed by Mukund Prabhu cannot be disputed, for a better title is not shown by the defendant. The fact that the name of the plaintiff No.1 appears in the panchayat records since the year 1983-84 cannot be disputed at all. It is also a fact that certain properties owned by Mukund Prabhu were leased in favour of Lakshmana Kamath can also be found from Ex.P5. One of the property in Ex.P5 is bound by a Church and evidently, DW.2 speaks of a Church on the South of the property. It is clear that the property which has a Church on the southern side is not the suit schedule property. Therefore, the evidence of DW.2- Sathyanarayana, who speaks about the property held by Rama Rao and Seethamma and which was leased to the defendant is in respect of the property adjoining a Church but not the suit schedule property. Therefore, the defendant cannot get any support from the evidence of DW.2 to contend that he is in possession of the property as described by the plaintiffs in the plaint. 25. It is relevant to note that the property which stands in the name of Rama Rao was bearing Panchayat No.242a. Ex.P11 clearly shows the same. The defendant has not produced any document to show how Rama Rao got the property mentioned in Ex.P11 i.e., property No.242a. The trial Court had considered this aspect in Para 22 and 23 of its judgment. 26. The above evidence clearly show that the title over the suit schedule property has the support of Ex.P5 and the argument of the learned counsel for the appellant that there is no mention of B.Kanabur in Ex.P5 is not of much relevance. The trial Court had considered this aspect in Para 22 and 23 of its judgment. 26. The above evidence clearly show that the title over the suit schedule property has the support of Ex.P5 and the argument of the learned counsel for the appellant that there is no mention of B.Kanabur in Ex.P5 is not of much relevance. The panchayat records coupled with Ex.P5 clearly show that the name of plaintiff No.1 is appearing in the panchayat records since from 1983-84 and the defendant cannot claim any right, title or interest over the same. There is absolutely no evidence on record on behalf of the appellant that the property No.242 belongs to T.V.Rama Rao but it was property No.242a as mentioned in Ex.P11. The testimony of DW.2 is pertaining to a different property and his admission in the cross-examination show his understanding of the suit schedule property. Therefore, it is clear that the plaintiffs have better title than DW.2. Obviously the defendant has no title over the suit schedule property and a feeble attempt was also made by him to claim adverse possession. When the defendant did not admit the title of the plaintiffs, it is not in the mouth of the defendant to claim adverse possession. Therefore, it is clear that the Rule of Preponderance of Probability heavily lean in favour of the plaintiffs. 27. The trial Court has dealt with the question of title in detail and has rightly appreciated the ocular as well as the documentary evidence in the right perspective. There is no reason to interfere with the findings of the trial Court on issue Nos.1 and 7 regarding title. 28. In the result, point Nos.1 and 2 are answered in favour of the plaintiffs/respondents. Re. Point No.3: 29. Evidently, the suit is for declaration of title and possession. Though the plaintiffs contended that they are landlord and the defendant was the tenant, there is no documentary evidence to show the same. The defendant contend that he is the tenant under T.V.Rama Rao and Sathyanarayana (DW.2). DW.2 has stated that he do not have any document to show the tenancy. The notice issued by the plaintiffs as per Ex.P2 claiming the defendant as monthly tenant was not replied by the defendant. DW.2 is also unable to show that there was any rent agreement with the defendant. DW.2 has stated that he do not have any document to show the tenancy. The notice issued by the plaintiffs as per Ex.P2 claiming the defendant as monthly tenant was not replied by the defendant. DW.2 is also unable to show that there was any rent agreement with the defendant. In fact, DW.2 speaks of some other property i.e., property No.242a and contend that the suit property is owned by him. Therefore, the trial Court held that the tenancy of the defendant under the plaintiffs is more probable. The conduct of the defendant in claiming tenancy under DW.2 at one breath and claiming adverse possession against the plaintiffs in another breath would render his testimony unbelievable. Therefore, when he remained silent, without replying to the legal notice at Ex.P2, the trial Court came to the conclusion that the defendant is the tenant and answered issue No.2 in the affirmative. Admittedly, the defendant has not paid any rent to the plaintiffs. Therefore, the conclusions reached by the trial Court are based on sound principles of Law of Preponderance of Probability. The conduct of the defendant has deprived him of any relief. The defendant admit that he was the tenant under DW.2 but it was not in respect of suit schedule property. Therefore, this Court also do not find any reason to interfere with the conclusions reached by the trial Court. Consequently, the point No.3 is answered in the negative. 30. For aforesaid reasons, the appeal is bereft of any merits. Hence, the following: ORDER The appeal is dismissed with cost. The judgment and decree dated 13.04.2007 passed in O.S.No.37/2000 by the learned Civil Judge (Sr.Dn.) and Prl. JMFC, Tarikere is hereby confirmed. The appellant shall vacate and handover the vacant possession of suit schedule property within three months from the date of this judgment.