Narasamma and Others vs M.R. Kashinath and Others

Ravi V. Malimath, J—The three suits were filed by the very same plaintiff. By a common Judgment & decree, O.S. No. 6091/1992 was decreed. O.S.2426/1995 & 4991/1995 were dismissed. Aggrieved by the Judgment & decree passed in O.S.2426/1995 the plaintiff has filed RFA 949/2003. Aggrieved by the order passed in Execution case No. 10097/2001 arising out of HRC 10449/1995, RFA 270/2006 has been filed.

The parties will be referred to as per their rank before the trial Court.

The case of the plaintiff in O.S. No. 6091/1992 is that she is the second wife of S.Thimmarayappa. He was the owner of the suit schedule property bearing No. 20 (old No. 145) situated at I Cross, II Stage, Sampangiramanagar, Bengaluru-27, morefully described in the schedule to the plaint. According to the plaintiff, her husband would sign his name in Kannada. He acquired the property out of the funds derived from ancestral property and also from his own income. He was doing the family business of handloom. He had put up a construction on the schedule property out of the income earned by the family and had let out to various tenants. Thereafter her husband became wayward and indulged in various vices. He had raised money from various persons and started squandering the amounts. The interest of the family was neglected. The plaintiff, her husband and children were residing in a portion of the suit schedule property. She took care of the home and children. After performing the marriage of her daughters, it was difficult for her to maintain the day to-day expenses. As such she had let out a portion of the property to one Smt. Chandrambal. Subsequently she vacated and handed over the premises to the plaintiff. Eversince then, the plaintiff is residing therein. That the defendants along with supporters, came on 17-9-1992 and demanded the plaintiff to vacate the schedule property with all her belongings within 3 days. On being questioned she was informed that the entire property has been sold in favour of the defendants. That various documents were relied upon by the defendants in support of their case. The defendants on the basis of these documents attempted to evict the plaintiff and her children from the suit schedule property. Hence, the instant suit O.S.6091/1992 was filed for a decree of permanent injunction to restrain the defendants, their agents and men from interfering with the plaintiff''s peaceful possession and occupation of the suit schedule property and consequential reliefs as well as from trespassing or dispossessing them.

On service of suit summons the defendants entered appearance. They denied the plaint averments. They stated that the entire schedule property inclusive of the suit premises were the self acquired property of Thimmarayappa who sold it to them under a registered sale deed dated 28-7-1974. The plaintiff was present and knew all the transactions. That the delivery note was also signed by the plaintiff and her husband on 29-6-1975. Thereafter the suit portion was allotted to one B. Muniyappa by the Rent Controller. Therefore, the family members of the plaintiff were never in possession of the suit schedule property. Chandrambal was not the occupant of the suit premises as tenant. It was let-out to the plaintiff. Therefore the possession of the plaintiff was unauthorized.

Based on the pleadings, the trial Court framed the following issues:-

"1) Whether the plaintiff proves that she is in lawful possession of the suit schedule property as on the date of suit?

2) Whether the plaintiff proves the alleged interference by the defendants?

3) Whether the plaintiff is entitled to a relief of permanent injunction sought for?"

O.S.2426/1995 has been filed by the very same plaintiff against the very defendants. The contents of the plaint averments are almost similar. They further contend that on 4-4-1995 the first defendant along with his supporters came to the suit schedule property and started demolishing some portion of the same. The plaintiff came to know that the first defendant had filed eviction case in HRC No. 117/1994 against one V. Muniyappa and obtained an eviction decree. Infact, Muniyappa was not at all residing in the said portion of the property. The defendants have no right to demolish the said portion of the property. Hence, the said suit was filed seeking for a decree of permanent injunction to restrain the defendants from interfering with the suit schedule property and from demolishing the standing construction over the same and consequential reliefs.

The defendants entered appearance and denied the plaint averments. The denial is almost identical to the written statement filed in O.S. 6091/1992. It is his further case that the 1st defendant became the owner of the suit schedule property by virtue of the registered sale deed. They denied that the defendants have illegally stolen some of the articles belonging to the plaintiff. That the HRC case was filed against one Muniyappa and thereafter executed the delivery note in Execution case No. 2015/1995 and possession was obtained. Since a portion of the property was in a dilapidated condition, such portion was demolished with a view to put up a new construction. That there was no disturbance so far as the plaintiff is concerned.

Based on the averments, the trial Court framed the following issues:-

"1) Whether the plaintiff proves her lawful possession over the suit schedule property?

2) Whether the plaintiff further proves the cause of action as alleged in the plaint?"

O.S.4991/1995 is filed by the very same plaintiff against the same defendants. The pleadings are similar. It is further contended that when the plaintiff protested that one Chakunni is a tenant of which defendant No. 1 got eviction decree against the L.Rs by filing HRC 2574/1993. Therefore they have every right to prosecute Execution case No. 2014/1995. Delivery warrant has already been issued. Now, since the defendants are trying to bring third parties to induct into the premises, the instant suit was filed to restrain them from inducting third persons in possession of any portion of the suit schedule property or to make any alterations or changes. The defendants entered appearance and denied the plaint averments. The denial is in terms of O.S. No. 6091/1992. That the 1st defendant has filed an eviction case in HRC No. 2574/1993 and obtained an eviction order. The same was subsequently put into execution. The possession was handed over to the defendants by due process of law and there is no forcible or unlawful dispossession of the tenant.

Based on the pleadings, the trial Court framed the following issues:-

"1) Whether defendants can dispossess or disturb plaintiff''s occupation of suit property?

2) Whether the plaintiff is entitled to the relief of injunction?"

Since the parties as well as the subject matter are common, all the three suits were clubbed together and common evidence was let-in. The plaintiff was examined as P.W.1 and the matter was deferred for further examination. P.W.1 did not come to the Court to give further evidence. Hence, there was no opportunity to the defendants to cross-examine this witness. Hence, her evidence was struck down. The daughter of the plaintiff was examined as P.W.2 and the General Power of Attorney is obtained by her mother and 7 documents were marked on behalf of the plaintiff. The 1st defendant was examined as D.W.1 and 44 documents were marked. All the three Issues in 6091/1992 were held in the affirmative. Two Issues on O.S.2426/1995 were held in the negative. The first issue in O.S.4991/1995 was held as does not survive for consideration. The 2nd issue was held in the negative. O.S.6091/1992 was decreed, restraining the defendants from interfering or dispossessing the possession and enjoyment of the plaintiff over the suit schedule property without following due process of law. O.S. Nos. 2426/1995 & 4991/1995 were dismissed. Hence, these three appeals.

Sri C. Venkatesh, the learned counsel appearing for the appellants contends that the impugned orders are bad in law and liable to be set aside. That the trial Court committed an error in holding that the defendants are in lawful possession of the suit schedule property. That the trial Court misread Ex.D-1 the sale deed. That the material on record would show that the husband of the plaintiff never executed the sale deed and therefore it cannot be said that the defendants were in lawful possession of the suit schedule property. Hence, he pleads that having decreed the suit O.S.6091/1992, the trial Court had to decree O.S. No. 2426/1995 & 4991/1995. Failure to decree the remaining suits while decreeing O.S. No. 6091/1992, is therefore erroneous.

The learned counsel for the respondents defends the impugned order. He contends that no interference is called for. That the trial Court has rightly considered the evidence and material on record.

On hearing learned counsels, I am of the view that following points arise for consideration in these appeals.

"1) Whether the trial Court committed an error in misreading Ex.D-1 the sale deed in concluding that the property was sold by the plaintiff''s husband to defendant No. 1?

2) Whether the trial Court committed an error in misreading the evidence on record with regard to the possession of the plaintiff?"

That in terms of Ex.D-1 the same would indicate that the husband of the plaintiff has sold the property in favour of defendant No. 1. Even delivery note has been signed by him as well as the plaintiff. Therefore O.S.6091/1992 was decreed in view of the fact that the plaintiff was in possession with a liberty to the defendants to dispossess them only in accordance with law or in the manner known to law. He therefore initiated HRC proceedings and evicted the plaintiff. Therefore as of now the plaintiff is not in lawful possession of the suit schedule property she having been evicted in terms of the order passed in HRC. Ex.D-1 is the sale deed executed by the husband of the plaintiff in favour of defendant No. 1. The same would indicate that the suit schedule property was sold in favour of the defendants. Ex.D-29 is the delivery note. The same would indicate that the possession of the suit schedule property was handed over to defendant No. 1. Ex.D-29(a) is the signature of plaintiff No. 1. The same is admitted by P.W.2 who is none other than her daughter. When the same was confronted to P.W.2 she admitted to the same. She has even admitted to her mother''s signature. Therefore when contents of Ex.D-1 including the signatures having been admitted, the trial Court was justified in accepting Ex.D-1. Ex.D-29 is the delivery note. It also contains the signature of the vendor namely, the husband of the plaintiff. The GPA holder of Thimmarayappa has also put LTM to the delivery note vide Ex.D-29 and she has also executed a registered sale deed under Ex.D-1. Therefore, on considering Ex.D-1, the sale deed as well as the signatures found, the trial Court therefore held that the property has been lawfully sold by the husband of the plaintiff in favour of the defendants. As on the date of sale, various tenants were in occupation of the suit schedule property. The tenancy was also attorned in favour of defendant No. 1. It is under these circumstances, that defendant No. 1 initiated HRC proceedings against the defendants. However, even as on the date of filing the suit, since the defendants were found to be in possession of the portion of the suit property, O.S.6091/1992 was decreed to restrain the defendants from dispossessing the plaintiff except following the due procedure of law. Due procedure of law was to initiate HRC proceedings for the lawful dispossession of the plaintiff over the suit schedule property. The same has resulted in orders being passed in HRC proceedings wherein the plaintiff was directed to vacate. The said proceedings culminated during the pendency of proceedings before this court. The defendants have been put into possession of the suit property in terms of HRC proceedings. Therefore to contend that only because O.S.6091/1992 has been decreed O.S.4991/1995 has to be decreed is without any reason.

O.S.2426/1995 is for a decree not to demolish portion of the suit schedule property. O.S. No. 4991/1995 is for decree not to induct any third person. Therefore following the Judgment & decree in terms of O.S.6091/1992 when the proceedings have been initiated subsequent to the decreetal of O.S.6091/1992 by filing HRC petition and the plaintiff being dispossessed, no further orders could be passed so far as O.S.4991/1995 is concerned. Therefore the trial Court was justified in dismissing the plaintiff''s suit in O.S.2426/1995 & 4991/1995.

Admittedly, the possession of the plaintiff on the suit schedule property is that of a tenant. Since he was in lawful possession, the suit was decreed as stated hereinabove. The plea of the plaintiff that the sale deed cannot be accepted was negatived by the trial Court. There is no interference with the same since the possession of the plaintiff over the suit schedule property is that of a tenant. HRC proceedings have since culminated during the pendency of proceedings and then dispossessed in a manner known to law. There cannot be any error in the Judgment & decree of the trial Court that calls for any interference.

RFA 270/2006 is filed aggrieved by the order passed in Execution case No. 10097/2001. I.As 4 & 5 were filed by one Thimmaraya Swamy who is the son-in-law of the plaintiff under Order 21 Rule 99 read with Rule 100 and under Section 151 of CPC seeking restoration of possession of the portion of the premises bearing No. 20, New No. 145, 6th Cross, 2nd phase, Sampangiramangar, Bengaluru, on the ground that he was dispossessed wrongly by executing a delivery warrant. By a detailed order the application was considered and in view of the reasons and the material, I.As 4 & 5 were dismissed. The reasons while considering the 3 suits by the trial court were almost the very same reasons that the Executing Court considered while dismissing the said applications. Therefore I find no merit so far as the said appeal is concerned. The first issue is answered by holding that there was no error committed by the trial court in misreading Ex.D-1 the sale deed. The trial court was justified in holding that the property was sold by the plaintiff''s husband to defendant No. 1. There is no error committed by the trial court in considering the evidence with regard to the possession of the plaintiff. The trial court was justified in coming to the said conclusion. Consequently, both the points are accordingly answered. In view of answering both the points for consideration, these appeals are dismissed. No Costs.