Partly allowed

Mr Allan Sunder Raj v. Mrs Miriam Meera Kumar

Karnataka HC4 Oct 2023RFA/658/2021

Case brief

AI extract

What is this about?

The High Court heard a Regular First Appeal against a trial court decree that granted a mandatory injunction directing the defendant to vacate the suit 'B' schedule property and dismissed his counter-claim. The High Court affirmed the decree regarding the 'B' schedule property but remanded the matter to the trial court for a fresh hearing on the counter-claim only.

What did the court decide?

The impugned judgment and decree regarding suit schedule 'B' property is affirmed. The matter is remanded to the trial court only insofar as the defendant's counter-claim regarding the 'C' schedule pr

Mr Allan Sunder Raj Vs Mrs Miriam Meera Kumar — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:36007 RFA No. 658 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR

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REGULAR FIRST APPEAL NO.658/2021 (INJ)

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BETWEEN:

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MR.ALIAN SUNDER RAJ S/O.LATE MAJOR T.A.SUNDER RAJ AGED ABOUT 80 YEARS R/AT NO.14, MEG OFFICERS COLONY, JAI BHARATH NAGAR BANASWADI MAIN ROAD BENGALURU - 560 033 ... APPELLANT (BY SRI DHANANJAY V.JOSHI, SR.ADVOCATE FOR SRI VACHAN H.U., ADVOCATE)

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AND:

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Digitally signed by B LAVANYA Location: HIGH COURT OF KARNATAKA

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MRS.MIRIAM MEERA KUMAR W/O COL.SEBASTIAN KUMAR (RTD) AGED ABOUT 59 YEARS R/AT NO.8/302, CARLESTON ROAD COOKE TOWN BENGALURU - 560 005 {REPRESENTED BY HER HUSBAND/GPA HOLDER, CO. SEBASTIAN KUMAR (RTD.,)} ... RESPONDENT (BY SRI M.ARUN PONNAPPA, ADVOCATE FOR CAVEATOR/RESPONDENT)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CPC PRAYING TO CALL FOR THE ENTIRE RECORDS IN O.S.NO.6162 OF 2017 FROM THE COURT OF THE IX

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ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-5) AND UPON PERUSUAL THEREOF, SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 05.04.2021.

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THIS APPEAL COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is preferred by the defendant in O.S. 6162/2017 being aggrieved by the judgment & decree dated 5.4.2021 passed by the learned IX Addl. City Civil & Sessions Judge, Bengaluru (CCH-5), wherein the learned trial Judge decreed the suit of the plaintiff with costs.

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Parties shall be referred to as per their status before the trial Court for the sake of easy understanding.

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I. Case of the plaintiff

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It is the case of plaintiff that residential property bearing No.14, MEG Officers Colony, Jai Bharath Nagar, Banaswadi Main Road, Bengaluru measuring East 125 feet, West 90 feet, North 140 feet and South 65 feet belonged to Late Major Sunder Raj, who is none other than father-in-law of plaintiff and father of defendant. Late Major Sunder Raj purchased the said property from Madras Sappers Officers

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House Building Cooperative Society Limited vide the registered document. Thereafter, Major Sunderraj constructed the ground floor portion in the year 1968-69 and after his retirement in the year 1978, started to reside therein with his family.

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3.1 It is further case of the plaintiff that Major Sunder Raj gifted the entire first floor of the main building and adjoining room together with staircase room of the ground floor forming part of the Premises No.14, MEG Officers Colony, Jai Bharath Nagar, Bengaluru, in favour of the defendant, who is none other than his son vide registered gift deed dated 25.7.1977. The defendant enjoyed the said portion of the property as absolute owner and got the khatha and revenue records transferred to his name in the records of the Corporation and the BBMP allotted Khatha No.14/1 to the said 1^st floor portion of the property. Pursuant to which, defendant put up construction of a residential building on the southern side of the said property by obtaining sanctioned plan bearing LP No.ENE/6475/77-78 dated 1.2.1978.

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3.2 This being the state of affairs, Major T.A. Sunder Raj executed a deed of settlement in favour of the defendant settling the entire ground floor portion bearing No.14 Banaswadi Main Road, Bengaluru together with the open space surrounding the same, except towards the southern side and the stair case vide registered deed of settlement bearing No.2337/82-83 dated 4.11.1982. In pursuance to the same, the defendant has been in possession and enjoyment of the same as absolute owner with revenue records and khatha got transferred to his name.

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3.3 Thereafter, in view of defendant acquiring the ground floor portion of the said property as stated above, he at the behest of his father Major T.A. Sunder Raj, with an intention to divide the family property between himself and his brother - Col. Sebastian Kumar, who is none other husband of the plaintiff, executed a registered deed of settlement in favour of Col. Sebastian Kumar settling all the immovable property consisting of the 1^st floor building, the open terrace of the ground floor, garage and open ground on the southern side of the ground floor, which is described by the plaintiff as schedule

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‘A’ property. The said settlement was made by way of

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registered document. In view of the registered settlement deed between the two brothers i.e, Mr. Allan Sunder Raj (defendant) and Col. Sebastian Kumar (husband of the plaintiff), each one became the absolute owner of their respective portions of the property. Col. Sebastian Kumar accordingly became the absolute owner of the property by virtue of the settlement deed and got the khatha and revenue records transferred to his name, pursuant to which he put up construction of a residential block on his portion of the property after obtaining necessary sanction plan from the concerned authorities.

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3.4 Thereafter Col. Sebastian Kumar, husband of plaintiff executed a registered gift deed in respect of the entire ‘A’ schedule property on the first floor bearing Khatha No.14/1, Banaswadi Main Road, Bengaluru in favour of his wife, the plaintiff vide registered gift deed dated 14.1.2000. Pursuant to which, plaintiff got changed the revenue entries and the khatha of schedule ‘A’ property to her name and she has been in possession and enjoyment of the schedule ‘A’ property as absolute owner by paying the statutory taxes to the authorities.

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3.5 It is further case of the plaintiff that in the year 2000, the defendant translocated his residence from Chennai to Bengaluru, and approached the plaintiff and requested her to permit him to use the servant's quarters situated on northwestern side of the property bearing No.14/1, Banaswadi Main Road, Bengaluru i.e., 'B' schedule property, which is a portion of 'A' schedule property, for the purpose of storing his belongings. In view of the close family relationship and the defendant being the brother-in-law of the plaintiff, the plaintiff readily agreed to permit the defendant to occupy the said portion without any financial consideration whatsoever. It is the case of plaintiff that she permitted the defendant to occupy the 'B' schedule property (part of the 'A' schedule property) as a licensee and infact the plaintiff continued to pay the taxes in respect of entire 'A' schedule property bearing 14/1 stated supra.

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3.6 This being the state of affairs, the plaintiff got issued a legal notice on 9.8.2017 terminating the licence of the defendant to occupy the ‘B’ schedule property, as she required the ‘B’ schedule property for her own use and occupation. The defendant did not reply to the legal notice and neither did he

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comply with the terms and conditions of the said legal notice. Left with no other alternative and due to the adamancy of the defendant in vacating the suit 'B' schedule property, the plaintiff was perforced to file a suit against the defendant for the relief of mandatory injunction restraining the defendant from using the licensed suit ‘B’ schedule property.

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ii) Case of the defendant

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The defendant on appearance filed the written statement denying the contents and the averments made in the plaint and took up a plea that suit filed by the plaintiff is not maintainable in law and on facts and that the plaintiff has no manner of right, title, interest or possession over the suit 'B' schedule property, which is a residential unit and a part of the property bearing No.14 which has been built and occupied by the defendant for over decades. The defendant claims to be the absolute owner in peaceful possession and enjoyment of the ground floor garage as well as the first floor residential portion of the property, which forms part of the residential property bearing No.14, Banaswadi Main Road, Bengaluru.

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4.1 It was further pleaded by the defendant in his written statement that the 1^st and 2^nd floors above the ground floor of the main building No.14 was built by him and so also the 1^st floor residential unit on the garage/servant quarters continue to form part of the property No.14. However, the defendant admitted that he gifted the 1^st floor of the main building bearing Khatha No.14/1 to his brother Col. Sebastian Kumar. Thereby, the entire ground floor of the main building, the 2^nd floor of the main building, the Ground and First floor of the outhouse/garage/servant quarters was retained by the defendant as original khatha No.14. Hence it was pleaded that the 1^st floor of the outhouse/garage/servant quarters belong to the defendant and the plaintiff’s claim over the same is illegal, without any manner of right, title and no injunctive relief or any other relief could be granted in favour of the plaintiff.

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4.2 In the written statement, the defendant took up the plea that he is the absolute owner of the ground floor of the main building, ground floor of the outhouse building, 1^st floor of the outhouse building and also owning the 2^nd floor of the main building. The 2^nd floor residential unit constructed by the defendant above the First Floor of the main building is

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described in the written statement as schedule 'C' property and the defendant claims to be the absolute owner of the schedule 'C' property. The defendant further pleaded that he has permitted the husband of plaintiff who is none other than his brother to keep his belongings in the said portion i.e., ‘C’ schedule property on the condition that the same shall be vacated as and when demanded or called for by the defendant.

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4.3 It is further case of defendant that on 10.3.2017, he made a verbal demand calling upon the plaintiff and her husband to vacate and deliver vacant possession of the Schedule ‘C’ property, morefully described in the written statement. However, the plaintiff and her husband had taken two months' time to vacate the 'C' schedule property and in the meanwhile as a counterblast filed the suit against him without there being any cause of action and that the suit is frivolous and baseless. Therefore, the defendant by way of counter-claim is seeking the relief of mandatory injunction against the plaintiff to quit and deliver the vacant possession of the schedule 'C' property, morefully described in the written statement by paying the requisite court fee.

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4.4 It is the specific case of defendant in his written statement that the Site bearing No.14 situated in K.G. Doddigunta, Jaibharath Nagar, Bengaluru was originally allotted to his father vide registered sale deed dated 2.2.1967 and thereafter his father obtained sanctioned plan from the City Improvement Trust Board (CITB) on 29.5.1967 and constructed the main building comprising of a living, dining, kitchen, store, pantry, verandah and four bed rooms with a stair case on the south-east corner and providing entry to the main house on the eastern side and garage with servant quarters located on north-western corner of the site.

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4.5 It is also pleaded that on 25.7.1977, father of defendant T.A. Sunder Raj executed a registered gift deed in favour of the defendant transferring the absolute right, title, interest and possession over all the first floor area of the main building together with all the constructions standing on the 1^st floor of the main building and Garage and a room forming part of the premises bearing No.14 situated in Banaswadi road, Bengaluru etc. Pursuant to execution of the registered gift deed, the defendant became the absolute owner of the entire First Floor area of the Premises bearing No.14 Banaswadi Road,

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Bengaluru together with all the constructions standing thereon on the 1^st floor of the main building and Garage and a room forming part of the Premises bearing No.14. Thereafter, the defendant by virtue of the said registered gift deed obtained the sanctioned plan from the Corporation of City of Bengaluru on 1.2.1978 and put up construction of the 1^st floor in the main building in Premises bearing No.14 and got assessed the same as Khatha No 14/1.

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4.6 It is further pleaded that the father of defendant executed a registered settlement deed dated 4.11.1982 in favour of the defendant transferring the absolute right, title, interest and possession over the ground floor building with the open space surrounding the same property in Corporation Khatha No.14. Thereby the defendant became the absolute owner of the ground floor building with the open space surrounding the same property in Premises bearing No.14, Banaswadi road, Bengaluru.

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4.7 It is also pleaded by the defendant that by way of registered gift deed 21.6.2004, father of the defendant viz., Sri T.A. Sunder Raj gifted the absolute right, title, interest and

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possession over the terrace of the 1^st floor of main building alongwith two existing rooms and also the terrace of the 1^st floor of the garage forming portion of Corporation Khatha No.14, Banaswadi, in favour of the defendant by putting him in possession of the same. Thereby, the defendant became the absolute owner of the terrace of the First Floor of the main building alongwith two existing rooms and also the terrace of the First Floor of the garage in Premises No.14, Banaswadi road, Bengaluru.

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4.8 It is further stated by the defendant in paragraph No.9 of the written statement that on 1.12.1982, the defendant executed a registered deed of settlement in favour of his brother viz., Sri Sebastian Kumar (husband of the plaintiff) transferring absolute right, title, interest and possession of the partly constructed First floor of the building with the half open terrace of the ground floor bearing Corporation Khatha No.14/1, Banaswadi road, Bengaluru alongwith open terrace of garage of Corporation Khatha No.14. Thereby, Sri Sebastian Kumar, husband of plaintiff became the absolute owner of the 1^st floor of the main building bearing Corporation Khatha No.14/1 with the open terrace of the ground floor and open

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terrace of the garage of the property bearing Corporation Khatha No.14, Banaswadi Road, Bengaluru.

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4.9 The defendant further pleaded that pursuant to death of his father viz., T.A. Sunder Raj on 17.9.2011, both the brothers i.e, Allan Sunder Raj (defendant) and Sri Sebastian Kumar (plaintiff's husband) entered into a mutual verbal agreement between themselves with regard to the usage, possession and enjoyment of those two additional constructions in a manner wherein Sri Sebastian Kumar, the husband of plaintiff permitted his brother/ defendant to continue to use and enjoy the 1^st floor of the garage and servant quarters building as against the similar permission given by the defendant to his brother - Sri Sebastian Kumar to use the 2^nd floor and open space thereof of the main building. It is also pleaded that as long as the said verbal arrangement is not reversed by mutual rearrangement or exchange, the defendant would be entitled to use and enjoy the 1^st floor of the garage and servant quarters building and the husband of the plaintiff viz., Sebastian Kumar would be entitled to use and enjoy the 2^nd floor with open terrace area of the main building.

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4.10 By virtue of the written statement, it is stated that if the plaintiff makes a demand for the defendant to vacate the 1^st floor of the garage/servant quarters, plaintiff would be under an obligation to vacate and hand over vacant possession of the 2^nd floor of the main building to the defendant. Hence, the defendant by way of counter-claim is seeking the relief of mandatory injunction against the plaintiff in respect of 'C' schedule property i.e., part and parcel of the 2^nd floor of the main house building being a part of the property bearing Corporation Khatha No.14, comprising of a hall and open terrace area, situated at MEG Officer’s Colony, Banaswadi Main road, Bengaluru.

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iii) Issues framed by the trial Court

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On the basis of the pleadings, the trial Court framed the following issues for consideration:

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"1. Whether the Plaintiff proves that she is the owner of suit 'A' schedule property by virtue of gift deed dated 14.01.2000 as averred in para 7 of the plaint?

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2. Whether the Plaintiff proves that the defendant is in permissive possession of the suit 'B' schedule property?

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3. Whether the Plaintiff is entitled for the relief of mandatory injunction as sought for?

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4. What order or decree?"

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iv) Findings of the Trial Court

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In order to substantiate the issues and prove the case, plaintiff got examined her power of attorney holder, who is none other than her husband - Col. Sebastian Kumar as PW.1 and got marked Ex.P1 to Ex.P11, whereas the defendant examined himself as DW.1 and got marked Ex.D1 to Ex.D5.

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6.1 The trial Court on consideration of the pleadings, the materials available on record and the evidence adduced by the parties including the admission made by the defendant with regard to the execution of the registered settlement deed dated 1.12.1982 which is produced at Ex.P2 and Ex.D4, held all the issues in the affirmative in favour of the plaintiff.

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6.2 The trial Court while referring to the evidence of defendant (DW.1) observed that defendant categorically admitted that he had executed a registered settlement deed dated 1.12.1982 transferring the entire right, title and interest of the 1^st floor building in favour of husband of plaintiff (PW.1). The defendant further deposed that he had put up construction on the terrace of the 1^st floor building, but he has no documentary evidence to show that 1^st floor building belongs to him. The trial Court based on the material on record came to the conclusion that though the defendant made a claim that he put up a construction on the terrace of the 1^st floor building, failed to produce any documentary evidence to show that the 1^st floor building belongs to him and in Ex.P2 it is not mentioned that the defendant has retained the right over the terrace of the 1^st floor building. Therefore, the trial court did not agree with the contention putforth by the defendant.

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6.3 The trial Court adverted to certain admissions made by defendant in his evidence, which read as under:

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"Another material admission given by DW-1 at page 18 reveals that, "C£ÀAvÀgÀ £À£Àß ¸ÀºÉÆÃzÀgÀ¤UÉ ªÉÆzÀ®£É CAvÀ¸ÀÄÛ ¸ÉlèªÉÄAmï ªÀiÁrPÉÆnØzÉÝÃ£É JAzÀgÉ ¸Àj. 1982-83 DzÀ ªÉÄÃ¯É £ÀªÀÄä vÀAzÉAiÀÄªÀjUÉ AiÀiÁªÀÅzÉÃ mÉÊl¯ï rÃqï EgÀ°®è JAzÀgÉ ¸ÁQëzÁgÀ CªÀgÀÄ mÉgÉÃ¸ï EgÀÄªÀ ºÀPÀÌ£ÀÄß G½¹PÉÆArzÁÝgÉ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. D §UÉÎ zÁR¯Áw E®è. mÉgÉÃ¸ï ªÉÄÃ¯É £Á£É PÀlÖqÀ ªÀiÁrzÉÝÃ£É."

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He further admitted that, "M§â §gÀ£Áqï ¦æAmÉÆÃgÀªÀgÀÄ mÉgÉÃ¸ï ªÉÄÃ¯É PÀlÖqÀ ªÀiÁrzÁgÉ JAzÀgÉ ¸ÁQë CªÀgÀÄ LrAiÀiÁ PÉÆlÖgÀÄ DzÀgÉ PÀlÖqÀ PÀnÖ®è JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. ªÉÆzÀ®£ÉÃ CAvÀ¹Û£À mÉgÉÃ¸ï ªÉÄÃ¯É PÀlÖqÀ ªÀiÁqÀÄªÁUÀ ªÁ¢AiÀÄgÀ ¥ÀgÀªÁ£ÀV vÉUÉzÀÄPÉÆAr¢ÝÃgÁ JAzÀgÉ ¸ÁQë CªÀgÉÃ PÀlÖqÀ ªÀiÁr JAzÀÄ ºÉÃ½zÁÝgÉ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ."

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He further admitted that, "1999 gÀ°è £Á£ÀÄ ªÁ¢UÉ ªÀ¸ÀÄÛUÀ¼À£ÀÄß ªÉÆzÀ®£ÉÃ CAvÀ¹Û£À UÁågÉÃeï£À°è ElÄÖPÉÆ¼Àî®Ä ¥ÀgÀªÁ£ÀV PÉÃ½zÉÝ JAzÀgÉ ¸Àj."

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Another material admission at page No.19 reveals that, " ªÁ¢ £À£ÀUÉ 2017 gÀ°è £ÉÆnÃ¸ÀÄ PÉÆnÖzÀÝgÀÄ JAzÀgÉ ¸Àj. ªÁ¢AiÀÄ £ÉÆnÃ¹UÉ £Á£ÀÄ GvÀÛgÀ PÉÆnÖ®è ¸Àj. zÁªÁ D¹Û © ¥Áæ¥Ànð ªÉÄÃ¯É £À£ÀUÉ AiÀiÁªÀÅzÉÃ ºÀPÀÄÌ E®è JAzÀgÉ ¸Àj."

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6.4 In view of the material admissions, the trial Court

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came to a conclusion that the defendant does not have any right over the 'B' schedule property and the plaintiff is able to prove her case by oral and documentary evidence.

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6.5 Further, the trial Court also considered the counterclaim made by the defendant with regard to his right over the 'C' schedule property, morefully described in the written statement. However, the defendant having not produced any documentary evidence for having secured right, title and interest over the ‘C’ schedule property and even no measurements having been given, the trial Court did not agree with the case of the defendant. Therefore, the trial Court came to the conclusion that the defendant has not proved ownership over the ‘C’ schedule property by producing cogent oral and documentary evidence and failed to prove his case with regard to counter-claim.

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6.6 Hence, on the basis of the material evidence on record, both oral and documentary and on hearing the arguments of both the learned counsels for the parties, the learned trial Judge decreed the suit of the plaintiff and directed the defendant to hand over suit 'B' schedule property forthwith to the plaintiff within three months from the date of the order and in case the defendant fails to vacate the suit schedule property, plaintiff was granted the liberty to recover the same by following due process of law.

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v) Arguments advanced by the learned senior counsel - Sri Dhananjay Joshi for the appellant/defendant

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It is the vehement contention of learned senior

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counsel - Sri Dhananjay V. Joshi for the appellant/defendant that the impugned judgment of the trial Court is based on false and incorrect statement of facts and it is arbitrary, illegal, contrary to the material placed on record, both oral and documentary. The same requires to be set aside. It is further contention of learned senior counsel that the suit schedule 'B' property does not exist and the plaintiff is claiming title over the said property under the gift deed dated 14.1.2000 executed by her husband, who is none other than brother of the defendant, but strangely there is no reference to the alleged suit schedule 'B' property in the said gift deed through which the plaintiff claims to have got right, title and interest over the said property. It is further contended that when the plaintiff is not the owner of the suit schedule 'B' property, the question of plaintiff claiming a right and obtaining a decree over

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which she has no right, title or interest is far-fetched and unknown to law. It is also the contention of learned senior counsel that the entire case made out by the plaintiff is on the

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basis of Ex.P2 and Ex.P4. Ex.P2 is the deed of settlement dated 1.12.1982 executed by the appellant/defendant in favour of PW.1 and Ex.P4 is the gift deed dated 14.1.2000 executed

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by PW.1 in favour of the plaintiff. The description of property mentioned in Ex.P2 does not match and correlate with the description mentioned in Ex.P4. A plain reading of Ex.P2 and Ex.P4 make it clear that the plaintiff did not receive any title to the garage by virtue of Ex.P4 gift deed executed by her husband - Col. Sebastian Kumar.

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7.1 It is further contended by the learned senior counsel that when the defendant has disputed the title of the plaintiff over the suit 'B’ schedule property and when there is a cloud raised on the title of the plaintiff over the suit 'B' schedule property, suit for bare injunction would not be maintainable and

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the plaintiff ought to have filed a suit for declaration, possession and injunction and not a mere suit for Permanent Injunction. In support of his contention, he relies on the judgment of the Hon'ble Apex Court in the case of Anathula

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Sudhakar -vs- P. Buchi Reddy (dead) by L.Rs. and others

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reported in (2008) 4 SCC 594 (paragraph 13.3).

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7.2 Learned senior counsel further contends that when

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the defendant has made a counter-claim and sought for relief with regard to the 'C' schedule property, morefully described in the written statement, the trial Court ought to have framed an issue to that effect to deal with the counter-claim, but no such

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issue has been framed by the trial Court. It is further contended that the trial Court has not taken into consideration Ex.D5 produced by the defendant which clearly shows that the defendant is the absolute owner of the ‘C’ schedule property, morefully described in the written statement which is executed by father of defendant in his favour on 21.6.2004 bequeathing the terrace of the 1^st floor and other portions as mentioned in the said gift deed. The trial Court has also committed an error in not taking into consideration the fact that the plaintiff has not challenged the Ex.D5, the gift deed executed by T.A. Sunder Raj (father-in-law of the plaintiff and father of defendant) in favour of the defendant. It is the vehement contention of learned senior counsel that appellant/defendant is residing in suit 'B' schedule property in his own right as absolute owner and not as a licensee and the plaintiff is not the owner of suit 'B' schedule property and no document is

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produced to establish her ownership over suit 'B' schedule property It is further contention of learned senior counsel that the appellant/defendant has produced sufficient material to show that he is the absolute owner of suit 'B' schedule property as well as 'C' schedule property, morefully described in the written statement, which has not been adverted to by the learned trial Judge and the judgment and decree passed by the trial Court is illegal, arbitrary and the same requires to be set aside and the counter-claim of the defendant requires to be allowed. On these grounds, learned senior counsel for the appellant/defendant seeks to allow this appeal by setting aside the impugned judgment and decree passed by the trial Court or in the alternative to remand the matter back to the trial Court for fresh consideration.

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vi) Arguments advanced by Sri M. Arun Ponnappa, learned counsel for the respondent/plaintiff

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Per contra, learned counsel Sri M. Arun Ponnappa representing the respondent/plaintiff vehemently contends that there is absolutely no illegality or perversity in the judgment & decree passed by the trial Court. In fact, the learned trial

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Judge has adverted to all the material, both oral and documentary and has rightly passed the impugned judgment decreeing the suit of the plaintiff by directing the defendant to vacate and hand over the suit 'B' schedule property and has rightly negatived and dismissed the counter-claim of the defendant.

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8.1 It is further contention of learned counsel for the respondent/plaintiff that when once an allegation is made in the plaint by way of pleading, unless the same is denied explicitly, the same shall be taken to be admitted in law as contemplated under Order VIII Rule 5 of the Code of Civil Procedure, which speaks about specific denial. He also contends that when there is non denial of the pleadings made by the plaintiff, the same would amount to admission of fact. In support of his contention, he relies on the judgment of the Hon'ble Apex Court in the case of Badat and Co., Bombay -vs- East India Trading Co. reported in AIR 1964 SC 538.

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8.2 Learned counsel Sri Arun Ponnappa further contends that licensee can be injuncted by way of filing a suit for mandatory injunction and seek for vacation of the premises

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pursuant to the expiry of licence or after the licence is terminated, in view of the fact that such possession or licence of the defendant becomes unlawful on such termination of the licence and the question of seeking possession would not arise for the reason that under the law of licence, the plaintiff does not part with the interest of the property, whereas it is only the permissive possession that is granted which is parted to the defendant. After issuance of the legal notice at Ex.P5 terminating the licence of the defendant, section 63 of the Indian Easements Act, 1882 would come into play. Under such circumstances, the defendant would have no option but to remove his goods and items from the suit 'B' schedule property and to vacate the same within reasonable time and the defendant cannot claim right over the property unless otherwise permitted by the plaintiff to the contrary.

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8.3 Learned counsel further contends that though the defendant has filed his written statement, he has not denied the license pleaded or contended by the plaintiff in the plaint, thereby it amounts to admission of the defendant with regard to the licence over the suit schedule 'B' property. It is further contended that in the cross-examination, defendant admitted

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that suit ‘B’ schedule property, which is part and parcel of property bearing No.14/1 was not in existence when his father Major T.A. Sunder Raj executed alleged gift deed/Ex.P10 in his favour. Learned counsel further contends that there is an admission by the defendant with regard to the construction having been undertaken by the defendant only on the southern side pursuant to execution of the gift deed by his father vide Ex.P10, whereas the suit ‘B’ schedule property is situated on the north-western side of property bearing No.14/1, which clearly indicates that the said construction has been put up on the suit ‘B’ schedule property by the husband of plaintiff (PW.1) which is also pursuant to the execution of the settlement deed dated 1.12.1982 by the defendant in favour of PW.1.

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8.4 Learned counsel further contends that the defendant has also admitted in his cross examination dated 8.3.2021 that during the year 1999 he sought permission of the plaintiff and her husband to store his articles/goods in suit ‘B’ schedule property. He further contends that the defendant has also admitted in the cross-examination that he is not the owner and has no right over the suit ‘B’ schedule property, which clearly affirms the contention of plaintiff that the defendant is in

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permissive use and occupation of the suit ‘B’ schedule property as a licensee.

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8.5 With regard to the contentions raised by the appellant/defendant that the trial Court has not considered the counter-claim of the defendant and has not framed relevant issue to consider the same, learned counsel contends that the same is not true for the reason that though the trial Court has not specifically framed an issue with regard to the counter claim, but the same has been considered in the internal pages

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– 24 and 25 of the impugned judgment by the trial Court. Therefore, the contention of the appellant/defendant that the learned trial Judge has not dealt with the counter-claim, cannot be accepted.

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8.6 In support of his contentions, learned counsel for the respondent/plaintiff relies on the following judgments:

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S. MANOHAR -vs- E.K. GOVINDARAJA SETTY - ILR 1994 Kar. 3246

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GERALD SAMUEL PEREIRA AND ANOTEHR -vsSUNDAR KARKADA - 1999 4 KCCR (SN) 277

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BADALT AND CO. BOMBAY -vs- EAST INDIA TRADING COMPANY - AIR 1954 SC 538

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vii) Points for consideration

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Having heard learned senior counsel for the appellant/defendant and the learned counsel for the

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respondent/plaintiff, the following points would arise for consideration:

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i) Whether the trial Court has committed an error or illegality in passing the impugned judgment and decree against the defendant by ignoring the material evidence, both oral and documentary ?

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ii) Whether the trial Court has committed an error in decreeing the suit of the plaintiff when the plaintiff does not have any right, title or interest over the suit 'B' schedule property?

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iii) Whether the trial Court has committed an error in not framing relevant issue for considering the counter-claim of the defendant with regard to ‘C’ schedule property, morefully described in the written statement?

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iv) Whether the interference is called for at the hands of this Court?

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viii) Regarding decreeing the suit with regard to 'B' schedule property

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I have given my thoughtful consideration to the pleadings, oral and documentary evidence on record and the arguments advanced by the learned counsel for the parties.

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Some of the admitted facts based on the oral and documentary evidence on record are as under:

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11.1 It is not in dispute that the father of defendant viz., Major Sunder Raj purchased the Site bearing No.14, MEG Officers Colony, Jai Bharath Nagar, Banaswadi Main Road, Bengaluru vide registered sale deed dated 2.2.1967 as per Ex.D1. Thereafter, father of defendant - Major Sunder Raj, executed a registered gift deed dated 25.7.1977 as per Ex.D2, gifting the entire 1^st floor of the Premises bearing No.14 in favour of the defendant - Mr. Allan Sunder Raj. Subsequently, father of the defendant executed a deed of settlement dated 4.11.1982 as per Ex.D3 settling the entire ground floor portion of Premises bearing No.14 in favour of the defendant. Pursuant to the gift deed and settlement deed executed by father to the defendant as stated supra, the defendant executed the

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registered settlement deed dated 1.12.1982 as per Ex.D4, settling the entire 1^st floor building of Premises No.14 in favour of his brother (PW.1) viz., Col. Sebastian Kumar. This being the state of affairs, the husband of plaintiff - Col. Sebastian Kumar (PW.1), being the absolute owner gifted the entire 1^st floor in favour of his wife by way of registered gift deed dated 14.1.2000, which is marked as Ex.P4. Therefore, plaintiff became the absolute owner of suit schedule 'A' and 'B' properties.

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11.2 Suit schedule 'A' property is all that piece and parcel of residential premises bearing No.14/1 (wrongly mentioned as 41/1 in the plaint), Madras Sappers Officers Housing Cooperative Society Limited, also known as MEG Officers Colony, Banaswadi Road, Bengaluru, measuring on the North 40 feet + 6 feet + 9 inches + 21 feet 6 inches; on South 62 feet + 14 inches; on the East 68 feet; and on the West 12 feet + 6 inches + 50 feet 4 ½ inches + 24 feet. Suit Schedule 'B' property is all that piece and parcel of the servant's quarters in the North-Western portion of the terrace situated in property bearing No.14/1, MEG Officers Colony, Jai Bharath Nagar, Banaswadi Main Raod, Bangalore, measuring approximately

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612 square feet. Absolutely there is no dispute with regard to the suit 'A' schedule property having been gifted by the husband of the plaintiff to the plaintiff and suit 'B' schedule property forming part of the 'A' schedule property.

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After the plaintiff became the absolute owner of suit 'A' and 'B' schedule properties, she has been in peaceful possession and enjoyment of the said properties as absolute owner. It is case of the plaintiff that during the year 20002001, the defendant approached her and requested her to permit him to use the servant's quarters in the north-western portion of the terrace situated in property bearing No.14/1, which is the suit 'B' schedule property, for the purpose of storing some of his belongings. Plaintiff agreed and consented for the same in view of the close family relationship and permitted the defendant to occupy the same. It is this portion of the property which is sought to be injuncted by way of restrainment order in the suit filed by the plaintiff. To be specific, the relief claimed in the suit is for restraining/injuncting the defendant by way of a mandatory injunction from using the licensed schedule 'B' property.

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On the basis of evidence adduced by the parties to establish their case through the pleadings and the Exhibited documents, this Court will have to see whether the plaintiff has made out a valid case and proved the issues cast on her to succeed in the suit. Admittedly, the plaintiff has produced Ex.P1 to Ex.P11 in her favour to establish her right, title and interest over the suit schedule 'A' and 'B' properties.

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Now, let me examine as to whether the plaintiff proved the fact of her ownership over the suit schedule 'A' and 'B' properties and whether she deserves any order of restrainment of the defendant from using suit schedule 'B' property, which is ordered by the learned Trial Judge.

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At this juncture, it is relevant to go through certain admissions made by the defendant in his cross-examination, which are as under:

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The above categorical admissions of defendant were

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dealt with by the trial Court in consonance with the documentary evidence produced by the parties at Ex.P1 to Ex.P11 and Ex.D1 to D5. The defendant admitted in his crossexamination with regard to ownership of the plaintiff in respect of the suit 'B' schedule property and also he (defendant) having put his belongings in the suit 'B' schedule property. In view of the several documents produced by the plaintiff at Ex.P1 to Ex.P11 relating to her ownership, title over suit schedule 'A' and 'B' properties and having regard to the

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categorical admissions of the defendant in his crossexamination, this Court is of the opinion that the trial Court is right in holding that the plaintiff has proved her right, title and interest over the suit schedule 'B' property. On re-appreciation of the entire oral and documentary evidence on record, this Court does not find any cogent and valid reason to interfere with the impugned judgment & decree to the extent of decree granted by the trial Court with regard to suit schedule 'B' property. The same is sustainable in law and the impugned judgment and decree passed by the trial Court is affirmed with regard to suit schedule 'B' property.

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ix) Regarding counter-claim of the defendant in respect of the 'C' schedule property, morefully described in the written statement

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The next aspect for consideration in this appeal

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would be whether the trial Court has committed any error in not framing an issue at the first instance with regard to the counter-claim made by the defendant, whereby relief of mandatory injunction was sought against the plaintiff to quit and deliver vacant possession of the schedule 'C' property,

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morefully described in the written statement-cum-counter claim.

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At this stage, it is relevant to state that under Order XIV Rule 1 of the Code of Civil Procedure, the issues are to be framed by the trial Court before the determination of the suit. Issues are of two kinds: (a) issues of fact; and (b) issues of law. Each material proposition affirmed by one party and denied by the other party in the pleadings form the subject of distinct issue. Admittedly in the present case, the defendant made a counter-claim under the provisions of Order VIII Rule 6A of the Code of Civil Procedure and sought for a mandatory injunction against the plaintiff with regard to Schedule 'C' property, morefully described in the written statement-cumcounter claim, by paying the requisite Court fee. In view of the defendant having made a counter-claim and there being pleading with material propositions of denial and assertions by the defendant, it is a duty incumbent on the trial Court to frame proper and necessary issues for determination of the suit. Admittedly, in this case no issue is framed with regard to the counter-claim made by the defendant and the prayer sought therein. Though the trial Court in its judgment has

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made a mention and dealt with the issue of counter-claim and the relief sought therein and answered the same to some extent, but I am afraid that may not be correct manner in deciding the counter-claim. Primarily, the trial Court is required to frame issues on the basis of pleadings for determination of the suit, thereby the trial Court would make known to the parties to the suit proceedings as to what are the issues that have to be dealt with and on which the parties would have to adduce evidence and place materials. Based on which, the parties deserve to be provided opportunity to place relevant material, both oral and documentary and thereafter consider the said issues while determining the suit. This would be the appropriate procedure for framing of issues, providing opportunity to all concerned parties and deciding the suit.

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As stated supra, this Court finds that though the trial Court in its judgment dealt with the counter-claim, but not framed the appropriate issue with regard to the counter-claim. Therefore, no opportunity has been given to the parties to elaborately lead or adduce evidence with regard to the claim of the defendant in respect of 'C' schedule property, morefully described in the written statement. Hence, I am of the opinion

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that the trial Court has committed an error in not framing relevant issue on the counter-claim preferred by the defendant and on this aspect, I deem it appropriate to remand the matter back to the trial Court with a direction to frame appropriate issue on the counter-claim, provide opportunity to both the parties to adduce evidence, both oral and documentary, hear the parties on the said issue and pass suitable orders on the counter-claim, keeping in mind the observations made by this Court in the present appeal and in accordance with law.

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x) Conclusion

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On re-appreciation of the entire oral and documentary evidence on record, I find that the impugned judgment & decree passed by the trial Court with regard to 'B' schedule property does not call for any interference. However, the matter is liable to be remanded to the trial Court only insofar as the counter-claim of the defendant with regard to the 'C' schedule property, morefully described in the written statement-counter claim. Accordingly, the points raised in the present appeal are answered.

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In view of the above, I pass the following:

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O R D E R

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i) The Regular First Appeal is allowed in part .

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ii) The impugned judgment passed by the trial Court in O.S. No.6162/2017 dated 5^th April 2021 on the file of the IX Addl. City Civil & Sessions Judge, Bengaluru insofar as decreeing the suit with regard to suit schedule 'B' property, is hereby affirmed .

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iii) The matter is remanded to the trial Court only insofar as the counter-claim of the defendant filed under Order VIII Rule 6A of the Code of Civil Procedure with regard to the 'C' schedule property, morefully described in the written statement-cum-counter claim.

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iv) The trial Court is directed to frame an appropriate issue pertaining to the counterclaim of the defendant in respect of the 'C' schedule property, morefully described in the

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written statement and decide the same by providing reasonable opportunity to both the parties to adduce evidence on the counterclaim, in accordance with law.

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v) The parties shall appear before the trial Court on 3^rd November 2023 without awaiting any further notice either from this Court or from the trial Court.

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vi) As the suit is of the year 2017, the trial Court shall decide the matter expeditiously and put the parties to terms by imposing costs, if and when required so that they would not take any unnecessary adjournments and decide the counter-claim of the appellant/defendant in respect of the 'C' schedule property, morefully described in the written statement within a period of four months from the date of receipt of certified copy of this judgment.

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vii) In view of disposal of appeal, pending interlocutory applications, if any would not

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