R.G. Prasad vs Mahaveerchand M. and Others

N. Kumar, J.—This is the defendant''s regular first appeal, challenging the Judgment and Decree of the trial Court, which has decreed the suit of the plaintiffs for recovery of possession with damages at the rate of Rs. 15,000-00 p.m. from the date of the suit till the date of recovery of possession.

For the purpose of convenience, the parties are referred as they are referred to in the original suit.

The subject matter of the suit is a portion of the premises bearing No. 68/10, 29th ''A'' Cross, IV Block, Geetha Colony, Jayanagar, Bengaluru-560011, which is morefully described in the schedule to the plaint and hereinafter referred to as the schedule property.

The plaintiffs purchased the schedule property under a registered Sale Deed dated 09.08.1989 from one B.P. Rama Rao, who is none other than the father of the defendant. Khata was transferred to their name and they are paying taxes. On the date of purchase, the defendant was in possession of the schedule property measuring east to west 14 ft. and north to south 25 ft., including open space and garage portion, where he was running a printing press. The plaintiffs allowed the defendant to continue his business on the request of the plaintiffs'' vendor. Later, the defendant filed O.S. No. 3649/1989 for the relief of permanent injunction against the father of the plaintiffs and subsequently, withdraw the same. Again he filed another suit in O.S. No. 2716/1995 for the relief of declaration and other reliefs. He filed one more suit in O.S. No. 10164/1996, which was subsequently withdrawn. Later, he filed one more suit for partition and separate possession of the schedule premises against his father and the plaintiffs in O.S. No. 5177/1989. On 17.04.2002, the said suit came to be dismissed. Aggrieved by the same, he preferred an appeal before this Court in RFA No. 853/2002 and the same was dismissed on 14.06.2008. Later the 1st plaintiff filed an eviction petition against the defendant in H.R.C. No. 10680/1990 before the Small Causes Court, Bengaluru. The Small Causes Court allowed the application. Aggrieved by the said order, the defendant preferred revision petition before this Court in H.R.R.P. No. 1043/1988. This Court directed the defendant to deposit a sum of Rs. 32,100-00 till the disposal of O.S. No. 5177/1989 filed for partition. Therefore, all the legal proceedings initiated by the defendant have been decided and the defendant failed to succeed in all the proceedings.

The specific case of the plaintiffs is that they are the absolute owners of the suit schedule property by virtue of registered Sale Deed. The defendant has no right, title or interest over the schedule property. The suit filed by him for permanent injunction has been dismissed and the said order has been confirmed by the High Court. A notice was issued to the defendant calling upon him to quit, vacate and deliver vacant possession of the schedule property. He declined and therefore, the suit is filed for getting the defendant vacated from the schedule premises.

After service of summons, the defendant entered appearance through a counsel and filed a detailed written statement contesting the suit, wherein he denied the ownership of the plaintiffs over the plaint schedule property. According to him, the property mentioned in the schedule to the suit and the schedule in the Sale Deed are different. The measurement given in the schedule are also not correct. According to him, he is in possession of the back yard portion with toilet measuring east to west 30 ft. and north to south 10 ft. along with admitted portion of printing press and open space to the main gate. He has been in possession and enjoyment of the schedule property since 1974 openly, uninterruptedly to the knowledge of the true owner. He has perfected his title over the schedule property by virtue of law of adverse possession. He is using the schedule property for his business. Therefore, the suit filed by the plaintiffs for possession is not maintainable. He admitted all the legal proceedings set-out in the plaint and prayed for dismissal of the suit.

On the aforesaid pleadings, the trial Court framed as many as 7 issues and 2 additional issues:

Whether the plaintiffs prove the jural relationship of landlord and tenant between themselves and the defendant?

Whether the plaintiffs prove that the termination of tenancy of defendant is in accordance with law?

Whether the plaintiffs prove that they are entitled for possession of the suit schedule property?

Whether the plaintiffs are entitled for damages of Rs. 25,000-00 p.m. as prayed?

Whether the plaintiffs prove that they are entitled for mesne profits as prayed?

Whether the plaintiffs are entitled for the relief sought for?

What order or decree?

Addl. Issues:

Whether the suit is barred by limitation?

Whether the defendant proves that he has perfected his title over the suit property by way of adverse possession?

The plaintiffs to substantiate their claim, examined the 1st plaintiff as P.W. 1 and produced 18 documents, which are marked as Exs. P1 to 18. The defendant was examined himself as D.W. 1 and has also produced 71 documents, which are marked as Exs. D1 to 71.

The trial Court on appreciation of the aforesaid oral and documentary evidence on record, held issue Nos. 1 and 2 regarding the jural relationship of landlord and tenant and termination of tenancy do not survive for consideration; answering issue No. 3 it was held that the plaintiffs have proved that they are entitled to possession of the suit schedule property. As against the claim of Rs. 25,000-00 p.m. as damages, the trial Court on appreciation of the evidence on record held that the plaintiff is entitled to Rs. 15,000-00 as damages per month from the date of the suit till recovery of possession. After holding that the plaintiffs are entitled to Rs. 15,000-00 p.m. towards damages, it further held that the plaintiffs are entitled for mesne profits as prayed for. It held that the suit is not barred by limitation and the defendant has failed to prove that he has perfected his right, title over the suit property by way of adverse possession. Aggrieved by the said Judgment and Decree of the trial Court, the defendant is in the appeal.

Learned counsel for the appellant/defendant assailing the impugned Judgment and Decree of the trial Court contended that the plaint is too vague. It does not disclose what exactly the case of the plaintiffs. In one breath, plaintiffs say that they are the owners and the defendant is the tenant. In another breath they say that the defendant is in unlawful possession of the schedule property. Admittedly no legal notice terminating the tenancy has been issued. Therefore, the suit of the plaintiffs ought to have been rejected by the trial Court. Further he contended that there being no evidence on record, the trial Court committed a serious error in holding that the plaintiffs are entitled to the damages at the rate of Rs. 15,000-00 p.m. Lastly it was contended that having held that Rs. 15,000-00 p.m. as damages, it has again ordered for an enquiry to ascertain the mesne profits, which only shows that the learned Judge is not clear about what he says. The defendant is in continuous possession and enjoyment of the schedule property from 1974 and he has perfected his title over the schedule property by virtue of law of adverse possession, which fact has not been properly appreciated by the trial Court.

Per contra, learned counsel for the plaintiffs/respondents submitted that the plaintiffs purchased the suit property from the father of the defendant. Several litigations were initiated by the defendant challenging the title of the plaintiffs therein. In fact an eviction petition has also been filed. However, the defendant contended that there is no jural relationship of landlord and tenant between the parties. He has setup a title himself. Therefore, eviction proceedings were withdrawn and the present suit is filed for recovery of possession. Admittedly, the defendant has no right, title or interest over the schedule property and his claim for adverse possession has no basis. The trial Court was justified in decreeing the suit of the plaintiffs. After enquiry, the trial Court has awarded a sum of Rs. 15,000-00 p.m. as damages. He fairly conceded directing further enquiry into the mesne profits is not correct. Therefore, he submits that he is not insisting any such enquiry.

In the light of the aforesaid facts and rival contentions, the points that arise for our consideration in this appeal are;

1) Whether the Judgment and Decree for possession passed by the trial Court is erroneous as contended by the defendant?

2) Whether the award of damages at the rate of Rs. 15,000-00 p.m. is not supported by any legal evidence on record?

POINT No. 1: Originally, the defendant''s father was the owner of the suit schedule property bearing No. 68/10, 29th ''A'' Cross, IV Block, Geetha Colony, Jayanagara, Bengaluru, of which the schedule property is a portion. It was purchased under a registered Sale Deed on 09.08.1989 for a valuable consideration. It is not in dispute that the defendant has filed a suit for injunction, a suit for declaration and a suit for partition. All the suits were ended against him. The plaintiffs had filed an eviction petition under the provisions of the Karnataka Rent Act. When the defendant took up a contention that the plaintiffs are not the owners and there is no jural relationship of landlord and tenant between them, the Rent Court could not have proceeded with the matter. The plaintiffs withdrew the application and filed the present suit for ejectment. In the present suit, the defendant has admitted all the legal proceedings, which are set-out in the plaint. However, the plea which is setup by him is that he has been in possession and enjoyment of the suit property since 1974 openly, uninterruptedly with the knowledge of the true owner. He has perfected his title over the suit schedule property by virtue of law of adverse possession. Therefore, it is clear from his plea of adverse possession set-up against the plaintiffs, the title of the plaintiffs is admitted. Even otherwise, the registered Sale Deed is produced. The earlier litigation confirmed the title of the plaintiffs. However, the defendant has miserably failed to adduce any evidence in support of his plea of adverse possession. Once the plea of adverse possession fails and the plaintiffs'' title is not in dispute as the defendant is in possession of the schedule property without any right, he is liable to be evicted from the schedule property. Therefore, the trial Court on consideration of the entire material on record, keeping in mind the legal position, rightly directed the defendant to handover possession of the schedule property to the plaintiffs, which cannot be found fault with.

POINT No. 2: The plaintiffs in support of their claim of damages for a sum of Rs. 25,000-00 p.m. have produced Exs. P15 and 16 i.e., Lease Deeds executed in respect of the properties situated in III Block, Jayanagara, Bengaluru, where under Ex. P15, the monthly rent was fixed at Rs. 25,000-00 and under Ex. P16, the monthly rent was fixed at Rs. 1,00,000-00. The said properties are measuring hardly 100 sft. and 2620 sft., whereas the schedule property measures roughly 350 sft. according to the plaintiffs and it is more than this according to the defendant. Taking into consideration the prevailing market rate of rent in the locality, where the schedule premises is situated, it awarded a sum of Rs. 15,000-00 p.m. as damages. As the said finding is based on evidence, that cannot be found fault with. Having said the plaintiffs are entitled to damages at Rs. 15,000-00 p.m., the trial Court should not have directed a separate enquiry to ascertain the mesne profits as contemplated under Section 20 Rule 12 CPC. That direction is illegal and requires to be set aside and it is accordingly set aside. In that view of the matter, we pass the following:

The appeal is partly allowed.

(a) The direction for separate enquiry to ascertain mesne profits as contemplated under Order 20 Rule 12 CPC is hereby set aside.

(b) The decree for possession passed by the trial Court is hereby affirmed.

(c) The decree for damages at that rate of Rs. 15,000-00 p.m. from the date of the suit till recovery or possession is also affirmed.

In the circumstances, I.A. No. 1/15 filed for direction does not survive for consideration and the same is accordingly rejected.