Sri. K.M. Mallaiah vs Smt. Lakshmamma

This is an appeal by the plaintiff. The parties are referred to by their rank before the trial court for the sake of convenience. The suit was for declaration of title and recovery of possession. It was the plaintiff''s case that he was the owner of property bearing no. 43, Block no. 16, Jarakabande Kaval, Yelehanka Hobli, Bangalore North Taluk, measuring about 30''x40''. The same was purchased under a Sale deed dated 1.6.1990. The plaintiff had paid property taxes in respect of the property to the local authority, from the date of purchase. The plaintiff had also obtained electricity supply to the premises.

It was claimed that the defendant sought to interfere with the suit property while contending that the property purchased by the plaintiff was not property bearing no. 43 but was no. 42 and that the plaintiff was illegally laying claim to the suit property.

It was further alleged that the defendant had during the pendency of the suit and in spite of an order of injunction restraining the defendant from interfering with the suit property, had taken unlawful possession of the suit property and therefore the plaintiff was constrained to amend the suit that was originally brought only for the reliefs of declaration of title and injunction.

The defendant had entered appearance and filed written statement and had denied the claim of the plaintiff. The defendant had on the other hand asserted that the plaintiff had suppressed the fact that the defendant had already instituted a suit in OS 4201/1989, before the very court, against the plaintiff seeking the relief of injunction against the plaintiff and it was with an ulterior motive to get around the said suit that the present suit had been filed. The plaintiff had mischievously adopted the boundaries given by the defendant to the property that was the subject matter of that suit.

On the basis of the above pleadings, the court below had taken up both the suits namely, OS 4201/1989 filed by the defendant and the suit filed by the plaintiff in OS 4652/1990 and framed the following issues.

Whether the plaintiff proves his lawful possession over the suit schedule property?

Whether the plaintiff further proves that the defendant interfered with his possession of the suit schedule property?

Whether the defendant proves that there is no cause of action for the suit and the suit is liable to be dismissed with compensatory costs u/s 35A of CPC?

What relief or Order?

Additional Issues:

Whether the plaintiff proves that he is the owner of the suit schedule property?

Whether the defendant proves that she is the owner of the suit schedule property?

Whether the plaintiff is entitled to the declaration of title as sought for ?

Whether the plaintiff is entitled to the possession of the suit schedule property as sought for?

The trial court, by its common judgment, held in favour of the defendant and dismissed the plaintiff''s suit.

The said judgment was challenged by the plaintiff in two appeals before this court in RFA 24/2005 and RFA 25/2005. The same were allowed. The suit of the defendant was dismissed. The suit of the plaintiff was remanded for a fresh consideration. It is on such reconsideration that the present judgment under appeal is filed.

The learned counsel for the plaintiff would contend that the trial court has failed to consider that as against the claim of the defendant he had produced the documents of title to the property, where as the defendant had not chosen to tender any evidence, in the absence of any apparent defect in the title deeds, the suit ought to have been decreed.

The suit having been dismissed on the ground that the plaintiff had failed to prove his vendors title to the property, thereby negating a registered document of title when there was challenge to it. This is also contrary to the view expressed in the earlier round of appeals before this court.

The learned counsel would point out that the only person who sought to deny the claim of the plaintiff, was the defendant. The defendant was claiming that the plaintiff had mischievously described her property as that of the plaintiff. However, the plaintiff had examined PW-2, who was indeed the actual owner of property no. 42, claimed by the defendant and the sale deed pertaining to the said property had also been produced. This circumstance is not at all considered by the court below.

The court below had also ignored the evidence of PW-3, who was the grandson of his vendor. He had endorsed that the suit property had been sold by his grand mother to the plaintiff.

The learned counsel hence seeks that the judgment of the trial court be set aside and the suit be decreed.

Though the defendant had abandoned the suit, she is now represented by counsel. The learned counsel makes an attempt to justify the reasoning of the court below. In the above circumstances, the trial court ought to have kept in view that the lis was between the plaintiff and the defendant. The plaintiff had produced a registered sale deed in respect of the suit property. There was no material produced by the defendant nor even referred to. The insistence of the trial court that the plaintiff ought to have established her vendor''s title, as if there was contra material against which the plaintiff''s sale deed was to be tested was an erroneous approach. It would have been a valid requirement if there was a serious dispute raised and established. The other material produced by the plaintiff to support the case of the plaintiff that he has exercised ownership and possession has been trashed by the trial court on finding certain infirmities therein. It may be true that the transformation of the nature of the land and the formation of house sites and sale thereof is apparently not in accordance with law and hence the having remained skeptical of the plaintiff''s claim to the property can even be understood. Therefore it would have been appropriate to have declared that the plaintiff had proved a semblance of a title as against the defendant. This would not have conferred immunity on the plaintiff in respect of any other claim, on the basis of better material. The trial court has hence applied a strict yard stick to gauge the plaintiffs title to dismiss the suit.

However, on a perusal of the record this court is of the opinion that the plaintiff had sufficiently established his case as against the defendant and was entitled to the reliefs prayed for.

The judgment and decree of the court below is set aside and the suit is decreed as prayed for.