In a regular first appeal regarding possession of property, this Court found that the appellant failed to establish an independent title. Rejecting claims that the trial court erred in evaluating evidence on purchase consideration and damages, the appeal was dismissed.
Admission of the appeal declined and the appeal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1 RFA 1127/2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR.JUSTICE V.SRISHANANDA
REGULAR FIRST APPEAL No.1127 OF 2022(Inj)
BETWEEN:
SMT. SARVAMANGALA P N W/O LATE DHARMENDRA, AGED ABOUT 53 YEARS, NO.3/16, 22ND MAIN ROAD, NAGENDRA BLOCK, BSK 3RD STAGE, PADMANABHANAGARA, WARD NO.53, BENGALURU-560 050.
...APPELLANT
(BY SRI R HARINATH, ADVOCATE)
AND:
SRI NARENDRA P LOGENDRA S/O LATE P D LOGENDRA, AGED ABOUT 53 YEARS, NO.619, 3RD MAIN ROAD, BENGALURU-560 060. KARNATAKA STATE, INDIA, REPRESENTED BY HIS GPA HOLDER SMT.MALINI NAREN W/O SRI NARENDRA P LOGENDRA.
...RESPONDENT
(BY SRI GANAPATHY BHAT VAJRALLI, ADVOCATE)
2 RFA 1127/2022
THIS REGULAR FIRST APPEAL FILED UNDER ORDER 41 RULE 1 R/W SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 20.04.2022 PASSED IN O.S.No.6647/2017 ON THE FILE OF THE XIV ADDITIONAL CITY CIVIL JUDGE BANGALORE, DECREEING THE SUIT FOR DAMAGES POSSESSION AND INJUNCTION.
THIS REGULAR FIRST APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
Heard Shri R.Harinath, learned counsel for the appellant and Shri Ganapathy Bhat, learned counsel for the respondent.
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4. Brief facts of the case are as under:
Plaintiff being the absolute owner of the suit schedule property, which is allotted by the Bengaluru Development Authority in favour of Shri A.V.Vishwanath. He having sold the property in favour of the plaintiff by a registered Sale Deed dated 02.06.2001. At the time of the Sale Deed, possession was handed over to the plaintiff and defendant being the sister-in-law of the plaintiff is in possession of the property. Since the defendant did not vacate the premises despite repeated request, plaintiff was constrained to file a suit for possession. In pursuance of the suit summons issued, defendant entered appearance and filed detailed written statement denying the case of the plaintiff and set up a independent ownership over the property.
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2. Whether plaintiff proves the defendant is in permissive possession of the suit schedule property?
3. Whether plaintiff proves the valid termination of permission ?
4. Whether plaintiff is entitled for the relief sought in the suit ?
5. What order or decree ?"
Ex.P-1 : General power of attorney
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Ex.P-6 : Receipt
Exs.P-7 to 9 : Tax paid receipts
Ex.P-10 : Encumbrance certificate
Ex.P-11 & 12 : Death certificates.
Ex.P-13 : Copy of deed of declaration
Ex.P-14 : Office copy of notice, dt:10.8.2017
Ex.P-15 : Certified copy of order sheet in
O.S.No.4429/2018
Ex.P-16 : Copy of notice dt:12.8.2019.
Ex.P-17 : Postal receipt
Ex.P-18 : Postal acknowledgement.
Ex.P-19 : letter in respect of company information."
DW-1 and she also relied on 13 documents, which were marked as Exs.D1 to D13, which are as under:
Ex.D1 : Receipt for purchase of D.D. dt.30.06.2001.
Ex.D2 to 5 : 4 Receipts of deposit of amount to Vijaya Bank. Ex.D6 : Solvency Certificate.
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Ex.D7 : Pass book of Bank of Maharastra. Ex.D8 : Letter of SAS Continental dt.5.2.2000 Exs.D9 & 10 : 2 closed cheque book front sheets Ex.D11 : Certificate of Sowndarya Silk Processor Ex.D12 : Copy of Reply dt.19.3.2018 Ex.D13 : Postal acknowledgement."
noting the title to the plaintiff had accepted the case of the plaintiff and decreed the suit of the plaintiff and directed the defendant to hand over the possession of the suit schedule property and also pay damages at the rate of Rs.30,000/- per month from the date of suit till date of delivery of the vacant possession and also directed the defendant to pay Rs.7,20,000/- towards the past mesne profits/arrears of damages.
7 RFA 1127/2022
8 RFA 1127/2022
miscarriage of justice to the appellant herein. On this ground alone the trial Court ought to have dismissed the suit of the plaintiff for want of proper prayers. In this regard, the appellant would like to rely on the Judgment rendered by our Hon'ble Apex Court reported in AIR 2008 SC 2033::(2008) 4 SCC 594 ANTHULA SUDHAKAR V/s P. BUCHI REDDY(DEAD) BY LRS. Wherein, the Hon'ble Supreme Court has held what type of suits to be filed when the title of the Plaintiff is disputed. In the penultimate para, the Hon'ble Supreme Court has categorically held that when the title of the plaintiff is shrouded with doubt and is strongly disputed by the Defendant by producing cogent evidence, then the proper prayer or relief to be sought in by the Plaintiff is suit for Declaration of his title, recovery of possession and for permanent injunction as a consequential relief. In fact, the appellant/defendant has vehemently contended that the very framing of the suit itself is not maintainable for want of proper prayer; this basic aspect of the matter was not at all considered by the Court below while evaluating the pleadings as well as the contention taken by the appellant/defendant in the court below. Thus, the impugned judgment and Decree suffers from legal sanctity and liable to be interfered by this Hon'ble Court.
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court below has been highlighted and elicited from the Plaintiff by the Defendant's counsel. That apart, the appellant/defendant has produced EX-DI which goes to the root of the case, the paying in slip for having taken out the Demand Draft to be paid to the Vendor of the suit schedule property and other connected documents showing the ability of the Appellant/Defendant's husband to pay the entire sale by consideration amount. But the trial Court, has rejected the entire evidence of the appellant/ defendant in one stroke by saying there is a doubt about the credibility of the evidence produced by the Defendant/appellant. This is very glaring legal mistake committed by the Court below. But straight away went to on to believe the version of the plaintiff/respondent which resulted in miscarriage of justice and hence, interference warranted from this Hon'ble Court.
10 RFA 1127/2022
out the Definitions of the Act; 2(9) "Benami transaction" means (b) except when the property is held by- (iv) any person in the name of his brother or sister or lineal ascendant or descendant, where the names of brother or sister or lineal ascendant or descendant and the individual appear as joint-owners in any document, and the consideration for such property has been provided or paid out of the known sources of the individual; on careful perusal of the evidence on record, it is the case of the appellant/defendant that when the plaintiff was in America and is a permanent resident therein, the appellant/defendant's husband used to look after his aged parents and in the evidence it has been elicited that at the time of purchase of the suit schedule property, the plaintiff was residing in America. Through his power of attorney, who is none other than his own mother the aforesaid property was purchased in his name and the Sale consideration amount was paid by the appellant/defendant's husband, to the Vendor of the suit schedule property and that the appellant/defendant is residing therein in her own right as owner of the suit schedule property and not under permissive possession as claimed by the Plaintiff/Respondent. The trial court misunderstood the entire legal aspect and held that provisions of the Benami Transactions Act, applied and the defendant/appellant has no legal right to contend as such. This finding of the court below is legally wrong and there is an exception culled out in the very Act itself, and
11 RFA 1127/2022
the finding rendered therein does not hold the field. Hence, interference from this Hon'ble Court wanted to undo the legal wrong committed by the Court below.
� It is submitted that the court below has miserably failed to properly evaluate the evidence on record and the burden of proof to be discharged by the respective parties before it; by adducing proper and cogent evidence to establish their contentions as raised by them in their pleadings. It is submitted that the appellant/defendant has raised the very question regarding the title of the plaintiff/Respondent by producing EX-D1 to D4 these documents would clearly shows the payment made through the Account maintained by the Defendant/appellant's husband and the Demand Draft was purchased through his account and there is a clear recital in the Sale Deed produced by the Plaintiff himself, the entire sale consideration was paid through Demand Draft purchased by the Defendant's husband Bank Account maintained by him. This important piece of evidence was glaringly ignored by the Court below in one stroke saying the credibility of these documents is doubtful in nature. No one would imagine that this document will be created after filing of the suit. When once, a cloud is created by raising a valid legal defence available to the defendant/ appellant, it is the bounded duty of the plaintiff/respondent to convincingly prove his title and also the payment of sale consideration amount to the Vendor. On a careful perusal of the Judgment and Decree rendered by the Court below, this important piece of legal discussion is absent. This important aspect of burden of
12 RFA 1127/2022
proof and onus of proof was never discussed by the Hon'ble Trial Court, which resulted in miscarriage of justice to the appellant/ defendant. In this regard, the appellant/ defendant would like to rely on the Judgment rendered by the Hon'ble Apex court reported in R.V.E. VENKATACHALA GOUNDER V/s ARULMIGU VISWESARASWAMI & V.P. TEMPLE reported in (2003) 8 SCC 752, at page 768, the law is stated in the following terms "29. In a suit for recovery of possession based on title it is for the Plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit schedule property and for the possession to be restored to him. However, as held in A. RAGHAVAMMA V. A. CHENCHAMMA, AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof; burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount, to proof of the plaintiff title" In the instant case, the Hon'ble Trial Court has not at all exercised the judicial powers vested in it, while evaluating the evidence available on record. Hence, the impugned judgment and decree is liable to set aside.
13 RFA 1127/2022
� It is submitted that another important glaring defect committed by the Hon'ble Trial Court is with regard to quantum of damages, without there being any documentary evidence to substantiate the same. This discussion of the court below can be found at page No. 20 & 21 para 9 pen ultimate Two lines from the bottom which is culled out here" Though the Plaintiff has sought damages for unlawful occupation of the defendant/appellant over the suit schedule property at the rate of 30,000/- P.M. but he is unable to establish the said fact with convincing evidence, on the other hand based on available material placed on record it has arrived for awarding the damages at the rate of Rs.20,000/- P.M. Therefore, Plaintiff has proved said fact partly, and accordingly answered the Issue No.4 affirmative. This is entirely against the materials on record. At one length the Hon'ble Trial Court admits the plaintiff/ respondent has failed to establish the said fact with regard to quantum of damages, but at the same time instead of rejecting the claim, has proceeded to answer the issue partly affirmative without there being any evidence to that effect. Thus, the judgment and Decree of court below is highly illegal and contrary to the evidence on record, purely based on assumptions of fact without there being convincing evidence to that effect. Hence, the interference is warranted from this Hon'ble Court.
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deserves to be set aside by this Hon'ble Court while exercising the appellate jurisdiction.
15 RFA 1127/2022
opposed the appeal grounds stating that the original Sale Deed has been produced by the plaintiff, whereby, plaintiff purchased the suit property from Shri A.V.Vishwanath who acquired the same by allotment by the B.D.A. and having purchased the suit property for valuable consideration; on humanitarian grounds, allowed the defendant to stay in the premises and defendant has now set up an adverse title, which is incorrect. Same has been rightly appreciated by the learned Trial Judge in the impugned judgment and sought for dismissal of the appeal.
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A.V.Vishwanath, plaintiff has proved his right, title and interest in suit property.
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considered opinion that no case is made out for further admission and further consideration. Accordingly, following order is passed:
ORDER
Admission declined. Appeal is dismissed .
Sd/JUDGE
DH
3 issues framed by the court
Whether the appeal challenging the lower court's finding of plaintiff's ownership and defendant's illegal possession deserves interference.
Whether the trial court erred in not appreciating the defendant's rebuttal evidence regarding sale consideration payment.
Whether the quantum of damages awarded by the trial court was supported by evidence.
Smt. Sarvamangala P.N.
Sri Narendra P. Logendra
V. Srishananda
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
