Nisar Ahmed Sha & Others vs Lakshmaiah & Others

M.I. Arun, J

Though the matter is posted for orders, with the consent of learned counsel for the parties, the matter is taken up for final hearing.

Aggrieved by the judgment and decree dated 07.12.2018 passed by the Court of XXVI Additional City Civil and Sessions Judge, Bengaluru, in

O.S.No.25213/2008, the defendant therein has filed this appeal.

For the sake of convenience, the parties are referred to herein as per their status before the trial court.

The original suit was filed by the respondents herein for the relief of ejectment and possession of the suit schedule property and for damages @

Rs.1,000/- per month from the date of filing of the suit till the defendant handing over vacant possession of the suit schedule property.

The brief facts of the case of the plaintiffs is that they are the sole and absolute owners of the suit schedule property and the defendant is in

permissive possession of the same. The defendant was put in possession of the same on 03.02.2005 for a period of fifteen days. However, the

defendant refused to quit and deliver vacant possession of the suit schedule property in favour of the plaintiffs. Hence, they were constrained to file

O.S.No.25213/2008 with a prayer of ejectment and possession along with mesne profits.

Per contra, the defendant upon service of notice has entered appearance before the trial court. He has contended that the sale deed of the plaintiffs

by which they are claiming ownership of the property is fake and that he is in possession and enjoyment of the suit schedule property by virtue of

Mane Bhogyada Kararu Pathra dated 01.12.2000. Under the said ground, he has sought for dismissal of the suit.

Based on the pleadings, the trial court has framed the following issues for consideration:

1) Does plaintiff prove that they are absolute owners of suit schedule property?

2) Does plaintiff proves that the Defendant is in permissive possession of suit schedule property?

3) Whether plaintiff is entitled for damages at the rate of Rs.1,000/- p.m., from the date of suit till handing over of possession of the schedule

premises?

4) Whether the plaintiff is entitled for the reliefs claimed in the plaint?

5) What decree or order?

It has answered the same in the following manner:

ISSUE NO.1 :- In the affirmative

ISSUE NO.2 :- In the affirmative

ISSUE NO.3 :- As per final order

ISSUE NO.4 :- In the affirmative

ISSUE NO.5 :- As per final order   For the following

In support of the case of the plaintiffs, first plaintiff has got himself examined as PW.1 and got marked Exs.P1 to P23. The defendant has got

examined himself as DW.1 and two other independent witnesses as DW.2 and DW.3, but no documents are got marked on behalf of the defendant.

The trial court, based on the pleadings and the evidence let in, has decreed the suit of the plaintiffs. It has granted three months time for the

defendant to vacate and handover vacant possession of the suit schedule property to the plaintiffs. With regard to mesne profits, it has held that there

shall be a separate enquiry.

Aggrieved by the judgment and decree passed by the trial court, the defendant therein has preferred this appeal. During the pendency of the

appeal, the defendant has expired and his legal heirs are brought on record.

The contention of the appellant/defendant is that he has been in possession of the suit schedule property by virtue of 'Mane Bhogyada Kararu

Pathra' dated 01.12.2000 which is a mortgage deed. The same was executed by the vendor who is alleged to have sold the property in favour of the

plaintiffs. It is contended that the trial court failed to take the said mortgage deed into consideration. It is further contended that he also had an

agreement from the earlier owner who had agreed to sell the property in favour of the defendant and in this regard, he has filed O.S.No.942/2011 and

the plaintiffs are also party to the said suit and the same is pending consideration. It is stated that the said suit is one for specific performance and the

trial court ought to have waited for the suit to be decreed. Based on the said grounds, the defendant has sought for allowing the appeal and setting

aside the impugned judgment and decree.

Per contra, the respondents/plaintiffs have justified the impugned order passed by the trial court.

The question that arises for consideration in this appeal is whether the appellant/defendant is able to establish that he was the mortgagee in

possession of the suit schedule property from the vendor who is alleged to have sold the same in favour of the respondents/plaintiffs and that the sale,

if any, in favour of the plaintiffs is subject to the mortgagee rights of the defendant.

The plaintiffs to prove their case have produced the certified copy of the sale deed dated 3.02.2005 by which they have become the owners of the

suit schedule property. By the said document, the plaintiffs have established that they are the owners of the suit schedule property. The defendant

apart from oral depositions has not produced any document to show how the sale deed in favour of the plaintiff in respect of the suit schedule property

is a fake document nor he has produced any document to establish his mortgagee rights. Based upon the said sale deed and other related documents

produced by the plaintiffs, the trial court has held that the plaintiffs have proved that they are the absolute owners of the suit schedule property.

It is the specific contention of the plaintiffs that on the date they purchased the suit schedule property they have put the defendant in possession of

the same for a period of fifteen days. Therefore, it is admitted that the defendant is in possession of the suit schedule property. It is their specific case

that the defendant has since not vacated the same nor has he paid any consideration by way of rent for occupying the suit schedule property. Thus,

the possession of the defendant over the suit schedule property is admitted. It is the contention of the defendant that he is in possession of the same by

virtue of a mortgage deed and he is a mortgagee and the rights of the plaintiffs if any is subject to his rights over the suit schedule property. But, as

observed by the trial court, he has not got marked the relevant mortgage deed though he has tried to produce the same by virtue of an interlocutory

application. However, the mortgage deed sought to be produced is an unregistered document and is not stamped adequately. The trial court has rightly

not considered the same as a piece of evidence to uphold the right of the defendant. The defendant has not produced any other document to show that

he is otherwise in lawful possession of the suit schedule property and the plaintiffs are not entitled to have him vacated from the suit schedule

property. Nothing contrary is elicited in the cross examination of PW.1. Further, pending of O.S.No.942/2011 filed for specific performance which is

alleged to have been filed by the defendant is no ground for the trial court not to pass the impugned judgment and decree.

The appellant/defendant has miserably failed to show what is erroneous in the findings of the trial court. The plaintiffs have proved that they are

the absolute owners of the suits schedule property and the defendant without any right is in occupation and possession of the same and thereby they

have sought for him to be vacated from the suit schedule property. Based on the pleadings and the evidence let in, the trial court has decreed the suit

for ejectment and possession. There is no error in the same.

For the aforementioned reasons, the appeal is hereby dismissed as devoid of merits. However, it is clarified that dismissal of this appeal does not

come in the way of the appellants from pursuing O.S.No.942/2011 independently. No order as to costs.

The pending I.As do not survive and are accordingly disposed of.