Ramanna vs Krishnappa

K.N. Phaneendra, J.—The ranks of the parties is referred to, as per their ranks before the Trial Court for the purpose of convenience, easy understanding and for avoiding confusion.

This appeal is directed against the judgment and decree passed in OS No. 4997/2010 dated 4.3.2013 by the XXXIX Addl. City Civil Judge, Bangalore City in decreeing the suit of the plaintiff directing the defendant (appellant herein) to handover the vacant possession of the suit B schedule property within 90 days from the date of the order. In case of his failure to do so, the plaintiff is entitled to take possession of the suit B schedule property at the cost of the defendant.

THE BRIEF FACTUAL MATRIX AS PER PLEADINGS OF THE PARTIES:

3.1 It is the case of the plaintiff that the defendant is no other than his younger brother, is a Licencee in occupation of the ACC sheet house measuring East to West 11'' and North to South 19'' situated on the western portion of the suit ''A'' schedule property which is more fully described in the ''B'' schedule property.

3.2 The plaintiff contended that his father had three sons by name Paramesh, Krishnappa (plaintiff) and Ramanna (defendant) and one daughter by name Jayamma. The elder brother (Paramesh) of the plaintiff started residing separately with his wife soon after his marriage. The plaintiff got married in the year 1983 with one Smt. Neelamma, and had got two sons and two daughters. The suit schedule properties are carved out in survey No. 46 measuring 24'' East to West and 27'' North to south of Saneguruvanahalli village, Yeshwanthpura Hobli, Bangalore North Taluk, in which the plaintiff earlier constructed a hut with the help of his friends and well wishers. The said area was declared as slum area by the State Government and called as "Chandranagar" and the Karnataka Slum Clearance Board. The said Board has prepared a list of occupiers and registered the plaintiffs name in their concerned register as occupier. The said Board also collected a sum of Rs. 738/- from the plaintiff after issuing notice to him for the purpose of improvement of the said slum area. Thereafter, in the year 1992 precisely on 21.05.1992, the Karnataka State Government, under ''Ashraya Yojana Scheme'' has issued ''Niveshana Hakkupathra'' to the plaintiff in respect of the said property which is subsequently called as Vrushabavathi Nagar and from that time, the said property was re-numbered as site No. 352. The Plaintiff contended that he has been paying taxes to the said property and various correspondence have been made by the plaintiff with the competent authorities with regard to the assessment and payment of taxes. In the year 1991, the plaintiff demolished the old hut and constructed a new ACC sheet house on the western side of suit ''A'' schedule property and in the year 2000 he has constructed another new sheet house measuring East to West 11'' and North to South 20'' in the eastern portion of the suit ''A'' schedule property in order to augment the space and to accommodate his family members.

It is the further case of the plaintiff that in the year December 2000, the defendant approached the plaintiff requesting him to grant licence to occupy the schedule B property. Defendant temporarily occupied the same with a promise to vacate the same as and when required by the plaintiff. In spite of repeated requests and demands, the defendant did not vacate the said premises. Hence, the plaintiff has got issued a legal notice dated 28.6.2010 by RPAD and certificate of posting, Calling upon the defendant to quit and deliver the vacant possession of the ''B'' schedule property. As the defendant did not comply with the terms of the notice, the plaintiff has filed the suit for various reliefs.

The defendant has filed a detailed written statement. It is the case of the defendant that though the property is in the name of the plaintiff, the plaintiff and defendants were residing together in a joint family along with their parents. During that time, the entire family occupied the open space in survey No. 46 of Saneguruvanahalli village, now it is called as Vrushabhavathi nagar and they have put up a hut in the open space measuring 24'' x 27'' in the year 1978. Subsequently, after the marriage of the plaintiff, tiled roof house was constructed in the year 1992, at that time, all of them are residing together, particularly plaintiff and defendant with their parents. As the plaintiff is the eldest member of the family and the defendant was partly became deaf in his young age itself, the said property was enjoyed by all the plaintiff, left their parents as joint family property and there was no necessity as such to the plaintiff to grant any licence to the defendant to live in the property. In fact, it is the case of the defendant that in the year 1992, there was a partition between the plaintiff and the defendant and the portion of the house i.e., in ''B'' schedule property was given to the defendant and he has taken separate water supply and Electrical connection and both the plaintiff and defendant in the year 2001 have made a joint affidavit to the Bengaluru City Corporation office for making khatha entries separately into their names with respect to their occupation, but joint katha was made on the basis of such affidavit. Therefore, it is contended that the defendant has been in possession and enjoyment of the ''B'' schedule property by virtue of the partition between himself and his brother the, plaintiff. The plaintiff has been residing in the eastern front side portion of the said property. Therefore, there is no question of any licence being given by the plaintiff, hence he prayed for dismissal of the suit.

On the basis of the above said rival pleadings, the Trial Court has framed the following issues:

"(1) Whether the plaintiff proves that defendant is in possession of schedule B property as a licensee?

(2) Whether the plaintiff proves that he is entitled for Mandatory injunction as prayed?

(3) What order or decree?"

In order to prove the case against the defendant, the plaintiff got himself examined as PW-1 and produced 9 documents Exs. P-1 to P-9. The defendant himself got examined as D.W. -1 and also examined D.Ws. 2 to 4 and got marked 12 documents Exs. D-1 to D-12. The Trial Court after analyzing the materials on record answered the above said two issues in the ''affirmative'' and decreed the suit in favour of the plaintiff. The Trial Court has mainly concentrated on the documentary evidence produced by the parties and bifurcated the documents prior to 2000 and after 2000 and considering the documents pertaining to the property standing in the name of the plaintiff prior to 2000 and the documents pertaining to the subsequent period standing in the name of the defendant, came to the conclusion that the plaintiff is entitled for vacant possession of the B schedule property and as such ordered for a decree in favour of the plaintiff. The said decree is called in question before this Court.

The appellant/defendant challenged the above said judgment and decree on various grounds. It is contended that the Trial Court has ignored the documents produced by the defendant and not properly appreciated the same in proper perspective. The Trial Court has not bestowed its serious attention with regard to the title to the suit schedule property whether it lies in favour of the plaintiff or not. The court has not framed any issue to that effect. It is submitted that the plaintiff and defendant along with their parents were living together when property was granted in favour of the joint family consisting of plaintiff, defendant, their parents. There was an oral partition between the plaintiff and the defendant. In the partition, ''B'' schedule property was allotted to the share of the defendant, he acquired full title to the suit ''B'' schedule property and that there is no relationship of Licensor or Licencee, as alleged by the plaintiff.

The learned counsel for the defendant contended that the Trial Court has not considered the conduct of the parties to ascertain whether the plaintiff has proved that there was any relationship of Licensor and Licencee. The Trial Court has not properly considered the provisions of Section 60(b) of the Easements Act, since the defendant has put up permanent construction on the B schedule property. Therefore, even if the court comes to the conclusion that there was a relationship of Licensor or Licencee, but the defendant is protected under the said provision. It is further contended that, the judgment and decree passed by the Trial Court is against law, facts and circumstances of the case. Therefore, it is liable to be set aside.

The learned counsel for the respondent supporting the judgment of the Trial Court contended that it is an exclusive grant of the suit schedule property made in favour of the plaintiff and in fact all the necessary documents of title stands in the name of the plaintiff and there is fraud played by the defendant in taking signature on the blank stamp paper in order to create an affidavit to be filed before the Municipal Corporation to get the katha changed into the name of the parties, such documents cannot be relied upon as rightly done by the Trial Court. It is further contended that the defendant has not properly explained the nature of his possession. Therefore, in the absence of such explanation the plaintiff being the owner, can recover the possession of the property from the defendant. Considering the relationship of plaintiff and defendant, being brothers and defendant having no right, title and interest over the property, by conduct of the parties it can be presumed that the defendant is in permissive possession or a Licencee in the suit schedule property. It is further argued that considering the oral and documentary evidence on record in proper perspective, the Trial Court has properly rendered the judgment. Further, added to that, it is contended that the defendant has not placed any material to show that there was a partition between the plaintiff and defendant in which the suit schedule property fallen to the share of the defendant and thereafter he constructed the B schedule property there is no registered document like partition deed produced before the court. Therefore, there is no need to interfere with the judgment rendered by the Trial Court.

On the basis of the rival contentions of the parties, the point that would arise for consideration of this court is -

"(1) Whether the Trial Court has properly appreciated the oral and documentary evidence and also legal aspects with regard to the relationship between the parties and the property in question and passed the judgment and decree?

(2) Whether the judgment and decree of the Trial Court deserves any interference at the hands of this court?"

On careful perusal of the judgment of the Trial Court, it is an undisputed fact that suit schedule site is formed in survey No. 46 of Saneguruvanahalli village, Yeshwanthpura Hobli, Bangalore North Taluk. It is also not in dispute that the said property measures 24'' east to west and 27'' north to south. There is also no dispute that, there are two tenements in the said property in which the plaintiff is residing in one tenement along with his family members which is described as ''A'' schedule and the defendant has been residing in ''B'' schedule property along with his family members. It is also not disputed by the defendant that prior to 2000, the property was standing in the name of the plaintiff. It is the contention of the plaintiff that he constructed the suit B schedule property and the defendant being his own brother, for temporary period till he gets a separate accommodation, he was put him in possession on the basis of permissive possession and therefore, he is not the owner or he gets no right, title and interest over the property.

The main contention of the plaintiff is that in the month of December 2000, the defendant requested the plaintiff to grant licence for occupying ''B'' schedule house, he assured to vacate the premises whenever the plaintiff asked him to do so. Therefore, considering the relationship that the defendant is his own brother, he accommodated the defendant and granted licence in respect of ''B'' schedule property with effect from January 2001. Therefore, there lies the relationship of Licensor or Licencee. As the defendant claiming himself to be the owner of the property and the plaintiff in order to accommodate his other family member because he conducted the marriage of his eldest son in the year 2009, therefore, he requested the defendant to vacate the ''B'' schedule property as the defendant refused for the same, he issued legal notice on 28.06.2010, as the defendant did not yield to the request of the plaintiff, he filed a suit for various reliefs.

The defendant''s contention in the written statement and in the evidence is that the plaintiff, defendant and their parents were residing in the suit schedule site by constructing a hut. During the lifetime of their father, as their father was age old and defendant is a deaf person, the property was entered in the name of the plaintiff. Taking advantage of the same, he got all the records into his name. However, subsequently, in the year 1994 itself, the property was partitioned between the plaintiff and the defendant and thereafter, the defendant has put up the construction of ''B'' schedule property and started residing therein. In the year 2001, both the parties explaining their partition and possession, filed affidavit before the competent authority for change of katha and the katha has been made out jointly in the names of plaintiff and defendant; and the defendant has continued to pay the kandayam to the said property and he has been exercising his right over the property as a owner and at no point of time, he conducted himself as a licencee or the plaintiff has conducted himself as a Licencor. Therefore, there is no such relationship as Licensor or Licencee. Hence, the Trial Court has committed a serious error in not considering this particular aspect.

Looking to the above said contentions of the parties, the case of the parties narrowed down to the point that whether there exists any relationship of Licencor or Licencee between the plaintiff and the defendant and whether the plaintiff is entitled for recovery of possession of the property. In this background, the court has to look into the materials on record.

Before adverting to the factual aspects of this case, it is clear from the pleadings that, it is the burdon on the plaintiff to prove the relationship as pleaded with cogent and convincing material. If he is able to prove that he is a licensor, there is no need for him to prove further. Section 52 of the Indian Easement Act, 1882, defines what is "Licence" which reads as follows:

"Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence."

(emphasis supplied)

In order to prove this particular provision, there must be a right vested in the plaintiff in the immovable property. The plaintiff by exercising his right over the immovable property, he must have granted to the defendant a right to do or continue to do, in or upon the immovable property of the plaintiff to do, something and on the basis of such right, the defendant has done something on the immovable property. The above said provision does not indicate that there must be a document to the effect of granting the licence. But the licence can be proved by the conduct of the parties. However, the burden of proof lies on the parties claiming that he is a grantor and he granted such licence to the defendant. It is not necessary that licence should always be in writing. What is necessary is the transfer of a right of enjoyment of the property made over the property and in the absence of any written contract between the parties, the court has to very carefully consider the conduct of the parties, documentary evidence on record whether they unequivocally establish the relationship of Licencor or Licencee.

Now first let me discuss the documentary evidence placed for the consideration of the court by the plaintiff. Ex. P-1 is the Hakku Patra or grant certificate issued by the Tahsildar, Bengaluru North Taluk on 21.5.1992 in the name of the plaintiff in respect of property No. 352 carved out in survey No. 46 measuring 24'' East to West x 27'' North to South. Ex. P-2 is the notice calling upon the plaintiff to pay an amount of Rs. 738/- with regard to the development charges of the said property dated 27.9.1992. Ex. P-3 is the Special notice issued to the plaintiff to pay an amount of Rs. 162/- pertaining to property No. 352. Ex. P-4 is the Kandayam paid receipt pertaining to property No. 352. Ex. P-5 dated 3.9.1994 wherein a notice was issued by the Evaluation Officer notified area of Saneguruvanahalli calling upon the plaintiff to produce the blue print, hakku patra and other documents pertaining to the property in site No. 352. Ex. P-6 is again Kandayam paid receipt dated 15.11.1994. Ex. P-7 is the legal notice issued by the plaintiff to the defendant wherein it is categorically stated that the plaintiff has given the suit schedule property, a portion of B-schedule to the defendant for his temporary occupation as a licencee and he requested him to quit and deliver the vacant possession within 15 days from the date of said notice. Ex. P-8 is the postal receipt and Ex. P-9 is the postal acknowledgement card for having served the said legal notice on the defendant.

The above said documents disclose that earlier the property was made out in the name of the plaintiff to the extent of 24'' East to West x 27'' North to South. But the documents produced by the plaintiff does not show to what extent he has constructed the house in the said site. It is the contention of the plaintiff that first he has constructed a house in which he is living i.e., ''A'' schedule and thereafter, he constructed ''B'' schedule and given it to the defendant as licencee for use. But to show that these houses are constructed one after another, is not supported by any documentary evidence. Even in the evidence also, the plaintiff has not specifically stated whether he has got any documents to show with regard to the construction of the houses by him like licence or any other materials except his oral statement.

It is the case of the defendant that there was a partition in the family and ''B'' schedule property was allotted to the defendant and thereafter he constructed a house and has been residing there. But the defendant also has not produced any document as such to show that he has actually constructed the house. The defendant has produced certain documents before the court to show that his father Bylappa died in the year 2009 and the death certificate is marked at Ex. D-1 and his mother died on 10.9.2007 and the death certificate is marked as per Ex. D-2. Ex. D-3 is the Special Notice dated 18.1.2002 pertaining to property No. 352 measuring 24'' x 27'' issued by the Bengaluru Mahanagara Palike, which stands both in the name of plaintiff and the defendant. This document is an intimation letter showing that the katha has been made out in the names of the plaintiff and defendant. Admittedly, this document has not been challenged by the plaintiff. Ex. D-4 is the four tax paid receipts which also show the joint names of plaintiff and defendant as kathedars of the said property. Ex. D-5 is the katha extract which shows that the katha stands in the name of the plaintiff and the defendant jointly. Ex. D-6 is another important document, which is the katha certificate wherein it is stated, the said property stands in the name of plaintiff and defendant as kathedars as on 7.7.2010. Ex. D-7 is the Gas connection letter which also shows that the defendant has taken Gas connection to his house in the year 2001 precisely on 19.5.2001. Ex. D-8 is the document issued by the Assistant Executive Engineer which shows that Water supply was given to the house of the defendant in his name. Ex. D-9 and D-10 are again the documents issued by the Water Supply department in the name of the defendant which shows that in the year 2001, he has taken separate water connection to his house i.e., property No. 352. Ex. D-11 is the Election ID card issued in the year 1995, which shows that the father of the plaintiff and defendant was residing in the said house No. 352. Ex. D-12 is the Ration Card issued by the competent authority for the year 1996. Mainly the document relied upon by the defendant is Ex. D-13 which is the true copy of the affidavit filed by the plaintiff and defendant before the Corporation which is a notarized affidavit wherein it is categorically stated that property No. 352 measuring 24'' x 27'' in survey No. 46, was divided between the plaintiff and the defendant though it was allotted in the name of the plaintiff and they requested the Bangalore City Corporation to change their individual katha into their names. They have also described the schedule which was fallen to the share of the plaintiff and the defendant. On the basis of such affidavit, it appears, the katha has been changed into the name of the plaintiff and defendant. This affidavit was recorded on 24.9.2001.

Looking to the above said documents, upto 2001, till the date of filing of the affidavit filed by the parties to the Corporation, the property was standing in the name of the plaintiff. Subsequently, changed into the joint names of the plaintiff and the defendant. For which Ex. D-13 is the document which shows that both the brothers have given that affidavit to the Bangalore City Corporation for change of katha. In this background, the oral evidence of the parties so far as these documents have to be taken note of.

The plaintiff himself is examined as PW-1. He has categorically deposed in his examination in chief that his marriage was solemnized in the year 1983 and he begot four children and they occupied the suit schedule property, constructed a hut with the help of his friends, well-wishers and etc., and the Karnataka State Slum Clearance Board has prepared a list of occupiers of every building situated in the said slum area and registered their names in the concerned register and thereafter granted the said property in favour of the plaintiff. In the month of December, 2000, he has given the portion of the property i.e., ''B'' schedule in favour of the defendant as licencee where he has promised to vacate the same whenever the plaintiff intended to get back the property. In the course of cross examination, he has admitted that both plaintiff and defendant are illiterates and they were doing masonry work since their childhood. It is admitted that the parents were residing in the said house during their last days. It is also stated by him that he has constructed both the houses. It is stated that he has constructed ''B'' schedule house in the year 1992 and there is electricity meter fixed to the said house in the name of the defendant. For this he gives an explanation that his brother got his signature on a bond paper and got fixed the meter in his name in the year 2001. During that time, his parents were alive and living with him. He has stated that he has constructed ''A'' schedule house about 12 years back and he took the electricity supply one or two years after the date of construction. It is also admitted that the defendant was suffering from deafness since the age of 15 years. It is admitted that his brothers'' marriage was performed in the year 1989. It is also admitted that himself and his brother were living jointly at the time of their marriage. That clearly goes to show that upto 1989, till marriage of the defendant they were living together. It is suggested that the property was allocated to him when they were jointly residing, he denied the suggestion. But it goes without saying that the property was allotted as per Ex. P1 in the year 1992 that shows that prior to the Registration of the names of beneficiaries all the members particularly, plaintiff and defendant were shown to be residing in the said property. It is also admitted that when his brother''s marriage was taken place, he was residing in a hut in the suit property. It is suggested to this witness and it is denied that they wanted to live separately in the year 1994 itself. He has not produced any documents to show the construction of the houses were made by him. It is also admitted that both of them are working as Masons and they were giving their earnings to their father till the date of their marriage. These aspects clearly goes to show that prior to the registration of the name of the beneficiary under the scheme in the name of the plaintiff, both plaintiff and defendant were living together. Thereafter, the plaintiff claims that the property was allotted to his name and he constructed both the houses.

The defendant in his examination in chief reiterated that he actually constructed the house i.e., ''B'' schedule property and he claims ownership over the property by virtue of the oral partition and on the basis of subsequent conduct of the plaintiff. As could be seen from the evidence of the defendant, he has produced this particular document Ex. P-13 before the court which is the document showing that both the brothers have divided themselves and they are residing separately and they claim for change of katha into their respective names. So far as this particular document is concerned, it is elicited in the course of cross examination of defendant that the defendant and his wife have purchased the stamp paper, went to the plaintiff and took his signature on the stamp paper when he was in his house by telling him that the said stamp paper is required to get electricity and water supply to the ''B'' schedule property. This suggestion is denied. But the fact remains that he admitted that he has put his signature to Ex. P-13. Whether it is fraudulently taken by the defendant and his wife or voluntarily executed by the plaintiff, but irrespective of that, the existence of the document and the signature of the plaintiff is not so much denied by the plaintiff. If that document came into existence in the year 2001 till the filing of the suit in the year 2010, the plaintiff has not raised even a little finger with regard to the conduct of the defendant as if owner taking water connection and as well as electricity to the said house and enjoying the property as if the owner. Even in the plaint, the plaintiff has not whispered anything about Ex. P-13.

Looking to the above said circumstances and the conduct of the parties, it shows that they wanted to enjoy the property separately as absolute owners and therefore, they have given that affidavit Ex. P-13 to the competent authority for change of katha into their name. As on the date of the suit, the katha stands in the name of the plaintiff and defendant. There is no other material placed before the court atleast from the date of granting licence to the defendant, the plaintiff has exercised ownership over the property in any manner by paying kandayam or by paying electricity bills or water bills. If at all, the plaintiff had constructed this house much prior to 2001, there should be some material to show that he got the electricity and water connection earlier to the said property to establish that he was exercising the ownership over the said property. Therefore, the case of the defendant cannot be easily brushed aside that they were residing together earlier to the grant of the said property till their marriage and after their marriage, in the year 1994, they might have decided to separate and thereafter, started residing separately and in the mean time, the property was granted in favour of the plaintiff, which in my opinion, enure to the benefit of the defendant.

The evidence of defendant and D.Ws. 2 to 4 who are neighbours, disclose that the plaintiff and the defendant are residing separately and enjoying the property as owners and at no point of time, the plaintiff has exercised his right over the property as owner. Though their evidence may not be sufficient to draw an inference either in favour of plaintiff or defendant but the fact remains that the defendant has been enjoying the property as if owner and that at no point of time he acted himself as licencee or in permissive possession of the property.

As I have already narrated the law with regard to licence, though there is no document between the parties, but by means of conduct of the parties, the plaintiff has to unequivocally establish the probabilities to prove that he continues to be the owner of the suit property and he has been exercising the ownership over the property and defendant is only a licencee. There is no challenge to Ex. P-13 anywhere by means of amending the plaint and virtually the conduct of the plaintiff shows that he has given his signature to the said stamp paper for the purpose of getting the katha changed and for the purpose of taking electricity and water connection. If the defendant is only a licencee of the property, there cannot be any change of katha or electricity or water connection to the name of the defendant, the plaintiff himself would have exercised his ownership and got the connection in his name by directing the defendant only to pay the electricity and water charges. Therefore, looking from the above said circumstances, the conduct of the parties do not clearly establish that the defendant is a licencee of the suit schedule property. On the other hand, as on the date of the suit, the joint katha stand in the names of both plaintiff and defendant and they have been paying kandayam, electricity charges and water bills separately as if they are the owners of the property.

When such dilemma is there with regard to the nature of possession of the defendant, the heavy burden which is on the plaintiff to prove that the defendant is a licencee cannot said to have been discharged by the plaintiff. Therefore, I am of the opinion that the plaintiff has not proved his case and the Trial Court has wrongly concluded that the defendant is in permissive possession of the property. The Trial Court has also not properly appreciated the oral and documentary evidence on record and it has not made out any distinction between permissive possession, licence and owner''s possession over the property. Therefore, the judgment of the Trial Court suffers from serious incurable defects and the Trial Court has committed a serious error in decreeing the suit. On the other hand, it ought to have dismissed the same. Hence, I answer the points 1 and 2 formulated by me in the Negative and affirmative respectively and proceed to pass the following:

The appeal is allowed. The judgment and decree passed by the Trial Court is hereby set aside. Consequently, the plaintiffs suit is dismissed. Parties to bear their own costs.