Sri K.N. Deenadayal vs Sri K.N. Srinivas

Huluvadi G. Ramesh

This appeal is by the defendant challenging the judgment and decree passed by the XXVIII Addl. City Civil Judge, Bangalore, in O.S. No. 15469/2006 dated 29.9.2011.

Suit was filed by the plaintiff against the defendant for possession mandatory injunction and damages in respect of the suit schedule property. It is stated, the suit property is his absolute property acquired through a gift deed dated 18.5.2005 and his name is entered in the corporation records as owner. The defendant, when the plaintiff was away from Bangalore, trespassed into the suit property during February 2000 and has put up a temporary shed illegally and without there being any right, title or interest and is in illegal possession, of the same. Alleging that the defendant refused to remove the unauthorised shed and deliver vacant possession in spite of several requests and that the property would fetch a minimum rent of Rs.400/-p.m. and defendant has caused loss to him, suit came to be filed as stated above. The defendant filed written statement denying the averments. It is stated the plaintiff is none other than his brother and the property being ancestral property, their mother had no right to execute a gift deed in favour of the plaintiff. It is also stated that the suit is not properly valued and the court fee paid is insufficient. Accordingly, he prayed for dismissal of the suit. Based on the pleadings, the trial Court has framed six issues and after enquiry, has decreed the suit of the plaintiff, directing the defendant to deliver the vacant possession of the property within one month. Hence, this appeal.

Heard.

On hearing the arguments advanced, the points that arise for consideration are - whether the trial court was right in decreeing the suit of the plaintiff and, what order.

The trial court looking into the evidence of the plaintiff and the documents produced and since the defendant or his advocate did not appear or cross-examine the plaintiff to rebut his evidence, treating the evidence of the defendant as closed, has observed that though it is stated by the defendant that the suit property is ancestral but to prove the same, no documents are produced. On the other hand, as per the documents made available by the plaintiff, there was a settlement made in favour of the mother of the plaintiff from her mother in respect of the suit property by virtue of which she became the absolute owner of the property and thereby she is entitled to execute a gift deed as per her wish and accordingly, decreed the suit of the plaintiff. I find no illegality in the order passed by the trial court.

Appeal is dismissed. However, another one year''s time is granted to the appellant from today to vacate and hand over the vacant possession of the premises to the respondent. In the suit filed for possession, if the requisite court fee had net been paid, it is for the respondent to pay the court fee as per the Court fees and Suits Valuation Act.

Consequent to the dismissal of the appeal, I.A.No. 1/2011 filed for stay is also dismissed.