Dismissed

D N Prabhuswamy v. Mahadevamma K G

Karnataka HC8 Feb 2024RFA/681/2023

Case brief

AI extract

What is this about?

The High Court dismissed a regular first appeal challenging a decree for declaration of title and possession. Upholding the trial court, it held the appellant was an unlawful entrant and ordered him to pay monthly damages to the sister-post-war title holder.

What did the court decide?

The appeal was rejected at the admission stage; no new remedy granted.

D N Prabhuswamy Vs Mahadevamma K G — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:5368-DB RFA No.681 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF FEBRUARY, 2024

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PRESENT

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THE HON'BLE MR JUSTICE KRISHNA S DIXIT

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AND

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THE HON'BLE MR JUSTICE G BASAVARAJA

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REGULAR FIRST APPEAL NO.681 OF 2023 (DEC/POS)

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BETWEEN:

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D N PRABHUSWAMY, S/O LT GANGAPPA, AGED ABOUT 64 YEARS, R/AT KENGERI GANGAPPA COMPOUND, 1^ST MAIN, 1^ST CROSS, GANDHINAGARA, TUMAKURU 572 101.

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…APPELLANT

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(BY SRI. UMESH MOOLIMANI, ADVOCATE FOR SRI S V PRAKASH., ADVOCATE)

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AND:

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Digitally signed by SANDHYA S Location: High Court of Karnataka

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MAHADEVAMMA K G D/O LT GANGAPPA W/O K S SHIVASHANKAR R/AT SRI SIDDARAMESHWARA, SWAMY FLOUR MILL, B H ROAD, NELAMANGALA TOWN, NELAMANGALA TALUK 562 123. BENGALURU RURAL DISTRICT.

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K C NAGARAJU, S/O LT GANGAPPA, AGED ABOUT 64 EYARS, R/AT KENGERI GANGAPPA COMPOUND, 1^ST MAIN, 1^ST CROSS, GANDHINAGARA, TUMAKURU CITY 572 101.

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HYMAVATHI W/O UMESH, AGED ABOUT 56 YEARS,

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2 - NC: 2024:KHC:5368-DB RFA No.681 of 2023

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R/AT KENGERI GANGAPPA COMPOUND, 1^ST MAIN, 1^ST CROSS, GANDHINAGARA, TUMAKURU CITY 572 101.

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…RESPONDENTS

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THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER 41 RULE 1 OF CPC READ WITH SECTION 96 AGAINST THE JUDGMENT AND DECREE DATED 01.10.2022 PASSED IN OS NO.9/2018 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, TUMAKURU, DECREEING THE SUIT FOR DECLARATION AND POSSESSION.

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THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, KRISHNA S. DIXIT J., DELIVERED THE FOLLOWING:

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JUDGMENT

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This Appeal seeks to lay a challenge of the Judgment and Decree dated 01^st October, 2022 passed in OS No.9 of 2018 by the II Additional Senior Civil Judge and JMFC, Tumakuru, whereby, eviction has been ordered along with a direction for the payment of damages for the occupation of the property. Heard the learned counsel for the appellant on Admission.

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Respondent No.1 had filed a suit against the appellant, seeking a declaration of title to the suit schedule property, possession, and damages of Rs.20,000/- per month. The respondent No.1 alleges that the property was allotted to her in a partition, and she has legal ownership supported by khata and tax payments. Despite this, the respondent No.1 allowed the appellant, illegally, to trespass into the suit

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NC: 2024:KHC:5368-DB RFA No.681 of 2023

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schedule property. A previous suit (OS No.1079/2012) was filed by the appellant, claiming tenancy and alleging illegal possession. The respondent No.1, having faced issues with encroachment attempts, filed suit in O.S. No.854/12 for permanent injunction, which was dismissed.

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Respondent No.1, represented by counsel, denies appellant's allegations, citing a partition deed dated 17.11.1999. He claims possession of the suit schedule property after settling disputes, asserting significant expenses incurred for resolution. Appellant also represented, denies being an unlawful occupant, asserting tenancy since September 2002. He contends that respondent No.1 is a stranger to the property and links the suit to instigation by the husband of respondent No.1. Both appellant and respondent No.2 prayed for dismissal of the suit.

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

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Whether plaintiff proves her title on the suit schedule property?

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Whether plaintiff proves that during 2012 the defendants have dispossessed her from the suit schedule property by illegal?

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4 - NC: 2024:KHC:5368-DB RFA No.681 of 2023

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Whether plaintiff proves that she has sustained damages of Rs.20,000/- as claimed?

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Whether 2^nd defendant prove that he has entered to the suit schedule property as tenant under the 1^st defendant?

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Whether plaintiff is entitled for the reliefs as prayed?

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What order or decree ?

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In the course of proceedings, representative of respondents-K.S. Shivashankar (PW1), produced a series of documents denoted as Exhibits P1 to P42, while appellantPrabhuswamy (DW1), countered with Exhibits D1 to D13. Respondent No.2 (DW2) also put forth pertinent documents marked as Exhibits D14 to D22. The trial court, after careful examination of the pleadings, evidence, and documents, affirmatively answered Issues No.1, 2 & 3, supporting the claim of respondent No.1, but negatived Issue No.4. The trial court has considered the arguments presented by both counsels whilst arriving at these findings. Being aggrieved by the impugned judgment and decree, appellant/defendant No.2 has preferred this appeal.

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Though the learned counsel appearing for the appellant has taken several contentions in the memorandum of

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appeal, he restricts his arguments only to determination of damages. In this regard, he submits that the determination of damages has been done without taking into the relevant factors & therefore, that portion of decree is void. On this ground, he sought for modification of the impugned judgment & decree.

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We Have carefully examine the material placed before us. The trial court considered Issues 1, 2, 4, & 5 and discussed them together due to their interlinkage. The respondentMahadevamma K.G., had filed the present suit against appellant, including K.G. Nagaraju, seeking a declaration of her title over the suit schedule property, possession, damages of Rs.20,000/- per month from the appellant, and a permanent injunction against interference. To substantiate her case, the power of attorney Holder ie husband of respondent No.1-K.S. Shivashankar (PW1) presented evidence and documents, including Exhibit P1 (partition copy), Exhibit P2 (judgment in OS No.854/12), Exhibit P3 (SPA), Exhibit P4 (notice), Exhibits P5 to P29 (CMC receipts), Exhibits P30 to P38 (Form No.II), Exhibit P39 (Form No.III), and Exhibit P40 to Exhibit P42 (FIR & charge-sheet copies).

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To counter the case of respondents, appellant-D.N. Prabhuswamy (DW1), submitted documents namely Exhibits D1 to D13 including a reply notice, postal acknowledgment, VAT certificate, certified utility bills, order in CC.797/14, FIR, income tax documents, and evidence of PW1 and PW2. Respondent No.1-Nagaraju (DW2), presented documents Exhibits D14 to D22 consisting of photos and a CD.

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Upon examining the admissions, documents, and on perusal of evidence presented by both the parties, it is established that respondent No.1 & 2 are siblings. Previously, the plaintiff had filed OS No.854/12, which was dismissed, and the respondent No.2 filed an injunction suit (OS No.1079/2012), currently pending. Notably, respondent No.2K.G. Nagaraju, the brother of respondent No.1, admitted to partition of property under Exhibit P1, confirming the respondents' entitlement to the suit schedule property. He acknowledged renting of property to respondent No.2 with the consent of respondent No.1. Despite the dismissal of OS No.854/12, the right of the respondent No.1 to file the present declaratory suit is upheld, as suits for permanent injunction involve recurring causes of action. Crucially, tax receipts

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(Exhibits P7 to 29) and Form-II (Exhibits P30 to 39) affirm that the property is still registered in the name of respondent No.1Mahadevamma. These admissions and documents substantiate respondents' claims in the suit.

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Contrary to the contention of respondent No.2 about resolving disputes and being in possession of the property, his admissions in cross-examination confirms the entitlement of respondent No.1 under Exhibit P1-partition deed. The appellant, claiming tenancy under the respondent No.2, admits to possession since September 2012, paying rent and an advance amount. However, as the property belongs to the respondent No.1, the appellant's tenancy under the respondent No.2 is invalid in the absence of consent of respondent No.1. Despite the admission of PW1 of awareness about the lawsuit, it does not support respondents case. The appellant, offers no substantial information beyond these admissions. Given the illegality of the appellant's possession, he is rightly held liable to pay damages to the respondent as per her claim.

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Upon thorough consideration of the materials before trial Court, the trial Court has passed an order to pay damages at the rate of Rs.20,000/- per month from the date of filing the

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suit till its realisation. There is no illegality/legal infirmity in the said finding.

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Having heard the learned counsel for the Appellant and having perused the Judgment & Decree, we are not inclined to grant indulgence in the matter. At paragraph 31 of the impugned order, the trial Court has rightly observed that the defendants have no right, title, interest and possession to enter into the suit premises. Exhibit P1-Registered Partition Deed of the suit property, reveals that the suit property was allotted to the plaintiff. The same is also admitted by DW2. Defendants have not questioned the validity of the Partition Deed-Exhibit P1 in any court of law. The trial Court has also observed that the possession of appellant over the suit schedule property is illegal and therefore they are liable to pay damages to the plaintiff, as claimed in the suit. Considering the conduct of defendants, the trial Court has ordered them to pay damages at Rs.20,000/- per month. Reminding the legal maxim, ”Jus ad rem" is a fundamental principle in property law, which refers to the right of a person to claim ownership or possession of a thing. T he trial Court has properly appreciated the evidence on record in accordance with law and facts as

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NC: 2024:KHC:5368-DB RFA No.681 of 2023

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demonstrated by the evidentiary material on record. Absolutely, there is no ground to interfere with the impugned judgment & decree passed by the Trial Court. In our considered view, there is no merit in the appeal, and it is accordingly, rejected at the admission stage itself.

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Registry to send a copy of this order to the Respondents by Speed Post immediately.

Sd/JUDGE

Sd/JUDGE

lnn/ABK

List No.: 1 Sl No.:9

D N Prabhuswamy v. Mahadevamma K G

Case brief

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D N Prabhuswamy v. Mahadevamma K G

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