Smt. Lalitha Devi C Vs Mrs. Vijayalakshmi.C.

SMT. LALITHA DEVI .C AGED ABOUT 59 YEARS, W/O SRI SENDIL KUMAR, R/AT NO.64, 1^ST FLOOR, 3^RD CROSS, GANESH TEMPLE STREET, JAI JAWAN NAGAR, SUBBANNAPALYA, BANASAWADI POST, BANGALORE-560043.

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…APPELLANT

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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(BY SRI MANJUNATH G. KANDEKAR, ADVOCATE)

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AND:

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MRS. VIJAYALAKSHMI .C AGED ABOUT 70 YEARS, D/O SRI V. CHADNRASHEKAR, R/AT NO.30, 2^ND FLOOR, 6^TH FLOOR, ANATHARAM LAYOUT, LINGARAJAPURAM, BANGALORE-560084.

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…RESPONDENT

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(BY SRI HANUMANTHAPPA A., SRI V. MAHESHA AND SRI K. TAMIL VANAN ADVOCATES FOR C/R)

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THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.09.2023

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HC-KAR

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PASSED IN O.S.NO.3955/2018 ON THE FILE OF LVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU., DECREEING THE SUIT FOR MANDATORY INJUNCTION.

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IN RFA NO.2208/2023

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BETWEEN:

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SRI SRINIVASAN S/O SRI SENTHIL KUMAR, AGED ABOUT 39 YEARS R/AT NO.64, 2^ND FLOOR, SUBBANNA PALYA, BANASWADI POST, BANGALORE-560043.

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SMT. LALITHA DEVI .C AGED ABOUT 59 YEARS, W/O SRI SENDIL KUMAR R/AT NO.64, 1^ST FLOOR, 3^RD CROSS, GANESH TEMPLE STREET, JAI JAWAN NAGAR, SUBBANNAPALYA, BANASAWADI POST, BANGALORE-560043.

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...APPELLANTS

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(BY SRI MANJUNATH G. KANDEKAR, ADVOCATE)

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AND:

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MRS. VIJAYALAKSHMI .C AGED ABOUT 70 YEARS D/O SRI V. CHANDRASHEKAR, R/AT NO.30, 2^ND FLOOR, 6^TH CROSS, ANANTHARAM LAYOUT, LINGARAJAPURAM, BANGALORE-560084.

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...RESPONDENT

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(BY SRI HANUMANTHAPPA A., SRI V. MAHESHA AND SRI K. TAMIL VANAN ADVOCATES FOR C/R)

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THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.09.2023 PASSED IN O.S.NO.3953/2018 ON THE FILE OF THE LVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT FOR INJUNCTION.

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HC-KAR

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IN RFA NO.2211/2023

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BETWEEN:

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SMT. LALITHA DEVI .C AGED ABOUT 59 YEARS, W/O SRI SENDIL KUMAR, R/AT NO.64, 1^ST FLOOR, 3^RD CROSS, GANESH TEMPLE STREET, JAI JAWAN NAGAR, SUBBANNAPALYA, BANASAWADI POST, BANGALORE-560 043.

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...APPELLANT

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(BY SRI MANJUNATH G. KANDEKAR, ADVOCATE)

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AND:

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MRS. VIJAYALAKSHMI .C AGED ABOUT 70 YEARS, D/O SRI V. CHANDRASHEKAR, R/AT NO.30, 2^ND FLOOR, 6^TH CROSS, ANANTHARAM LAYOUT, LINGARAJAPURAM, BANGALORE-560 084.

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ANJALI, MAJOR, R/AT NO.64, GROUND FLOOR, 3^RD CROSS, JAI JAWAN NAGAR, SUBBANNA PALYA, BANASWADI POST, BANGLAORE-560 033.

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...RESPONDENTS

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(BY SRI HANUMANTHAPPA A. & SRI K. TAMIL VANAN ADVOCATES FOR R-1; NOTICE TO R-2 IS D/W V/O. DATED 28/10/2024)

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THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.09.2023 PASSED IN O.S.NO.3954/2018 ON THE FILE OF LVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU., DECREEING THE SUIT FOR MANDATORY INJUNCTION.

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HC-KAR

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THESE APPEALS COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA

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ORAL JUDGMENT

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All the appeals are taken up together as they arise out of the same schedule No.64 (ground floor, first floor and second floor) in order to avoid repetition of facts.

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RFA Nos.2204/2023, 2208/2023 and 2211/2023 are preferred by the defendant/s assailing the judgment and decree dated 21.09.2023 in O.S. Nos.3955/2018, 3953/2018 and 3954/2018 respectively on the file of the LVI Additional City Civil and Sessions Judge, Bengaluru City (CCH-57) (hereinafter referred to as ‘Trial Court’ for short). By judgments and decrees, the Trial Court decreed the said suits with cost, declaring that the plaintiff is entitled to recover the possession of the respective suit property from the defendant/s and directed the defendant/s to quit and deliver the vacant possession

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HC-KAR

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of the suit property in favour of the plaintiff within two

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months from the date of decree.

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The plaintiff has instituted three suits against the defendants, namely Lalitha Devi, her son Srinivas and one tenant Anjali in O.S. Nos.3953/2018, 3954/2018 and 3955/2018 in respect of ground, first and second floor portion of property bearing No.64. The case of the plaintiff is that she is the absolute owner and her name has been mutated in the revenue records. It is stated that originally

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the suit property was purchased by the deceased Yallamma-the mother of the plaintiff and defendant. During her lifetime, on 31.03.1984, said Yallamma mortgaged the suit property for Rs.8,000/-. The said mortgage amount having remained unpaid, the plaintiff, on 31.03.1987 discharged the mortgage by remitting a sum of Rs.16,500/- thereby redeemed the mortgage. It is the assertion of the plaintiff that, upon such discharge, she became the absolute owner of the suit property. The case of the plaintiff is that the plaintiff has two other sisters,

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HC-KAR

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namely, C. Rajalakshmi and C. Lalitha Devi (defendant) and after discharging the mortgage, the plaintiff continued in possession of the suit property. It is further submitted that the defendant herself executed a registered release deed dated 14.07.2004 in favour of the plaintiff thereby recognizing and acknowledging the rights of the plaintiff over the suit property. That in the year 1999, the plaintiff constructed a house of ground, first floor and second floor and the defendant, being her sister requested the plaintiff

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to give possession of portion of the property for performing the marriage of her son. Considering the request, the plaintiff permitted the defendant to occupy. However, despite repeated requests/demands to vacate and deliver the vacant possession of the property, the defendant/s has failed to vacate. Hence, notice was issued calling upon her to vacate the suit property. As the defendant/s failed to vacate, the suits seeking eviction and delivery of the vacant possession of the suit property was filed.

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HC-KAR

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The defendant/s filed a written statement, inter

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alia, denying the plaint averments. It is specific case of the defendants that the plaintiff is not the absolute owner of the suit property and that the deceased Yallamma during her lifetime had declared her intention to give the entire first floor portion of the suit property to the defendant. Acting on such intention, defendant asserts that she has been in possession and enjoyment of the suit property much prior to death of Yallamma and continued to reside therein till date. It is the case of the defendant/s that, the plaintiff with an oblique motive has procured a release deed in respect of the suit property in her favour and attempted to dispossess the defendant. Upon learning of such document in favour of the plaintiff, the defendant instituted a suit in O.S. No.26363/2017 seeking declaration of title challenging the release deed. It is averred that the plaintiff, having failed to succeed in her attempts, has filed the present suits.

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HC-KAR

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In order to substantiate the claim, the plaintiff

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examined herself as PW.1 and two witnesses as PWs.2 and 3 and marked documents at Exs.P.1 to P.30. On the other hand, the General Power of Attorney holder of the defendant examined as D.W.1 and the younger son of the defendant was examined as DW.2 and marked documents at Exs.D.1 to D.23.

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The Trial Court, upon consideration of the oral and documentary evidence, gave a finding that the defendant herself has executed a registered release deed on 14.07.2004 in favour of the plaintiff and on the said basis, the plaintiff has become the absolute owner of the suit property. The Trial Court also observed that the plaintiff has constructed a three floor house in the property bearing No.64, and the defendant’s possession was held to be permissive, not ownership. The Trial Court decreed the suit declared the plaintiff as absolute owner and entitled to recover possession. Defendants were

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HC-KAR

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directed to quit and hand over possession within two months.

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Heard the learned counsel for the appellant and

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learned counsel for the respondent and perused the material on record.

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Learned counsel for the appellant-defendant

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submits that during the lifetime of her mother-Yallamma, she expressed her intention to give the first floor portion of the property to appellant and accordingly defendant No.2 was put in possession. The plaintiff could not have contended that the defendant is in permissive possession given by the plaintiff at any point of time. The alleged release deed dated 14.07.2004 in favour of the plaintiff is fabricated, created behind the back of the defendants and without their consent or knowledge.

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Per contra, learned counsel appearing for the

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respondent-plaintiff justifies the judgment and decree of the Trial Court and submits that the defendant’s challenge

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HC-KAR

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to the registered release deed dated 14.07.2004 is

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untenable. They had filed O.S. No.26363/2017 seeking cancellation of the said release deed when the plaintiff (defendant in that suit) sought rejection of plaint, application, under Order VII Rules 11 (a) and (d) CPC seeking rejection of the plaint, was initially rejected, which

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came to be challenged before this Court in CRP No.178/2019 and this Court allowed the petition and rejected the plaint and categorically held that a suit for cancellation of the registered release deed dated 14.07.2004 was barred by limitation. Accordingly, the order of Trial Court was set aside and the plaint in O.S. No.26363/2017 was rejected. Therefore, the validity of the registered release deed dated 14.07.2004 has attained finality and the defendants cannot re-agitate the same issue in the present proceedings.

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Having heard the learned counsel for the parties, the point that arises for consideration is:

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HC-KAR

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“Whether the judgment and decree of the Trial Court warrants any interference?”

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The relationship between the parties is not in dispute. It is also not in dispute that during the lifetime of Yallamma, she had mortgaged the suit property for Rs.8,000/- on 31.03.1984. The evidence on record clearly establishes that the plaintiff thereafter redeemed the mortgage by paying a sum of Rs.16,500/- on 31.03.1987. It is borne from the record that the defendant herself has executed the registered release deed on 14.07.2004 in favour of the plaintiff. The said release deed was subsequently challenged by the defendant in O.S.No.23636/2017. The plaintiff herein filed an application under Order VII Rules 11(a) and 11(d) CPC for rejection of the plaint before the Trial Court, which came to be rejected, which was carried in revision by the respondent-plaintiff before this Court in CRP No.178/2019. This Court allowed the petition and held that the suit for cancellation of the registered release deed dated

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HC-KAR

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14.07.2004 ought to have been filed within three years

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and the suit has been filed only in the year 2017. As such, the suit is clearly barred by limitation. The said order in CRP No.178/2019 has attained finality, as such, the validity of the release deed dated 14.07.2004 is no longer open to challenge. Consequently, the present attempt of the defendant-appellant to re-agitate the same question by contending that the release deed was obtained behind the back and without notice is wholly unsustainable. On the strength of the registered release deed, the plaintiff is rightly held to be the absolute owner of the suit property. The Trial Court, upon consideration of the pleadings and documents, has further recorded a finding that the possession of the defendant is only permissive in nature, and that she has no independent right or title to resist the plaintiff’s claim for possession. Accordingly, the Trial Court decreed the suits directing the defendants to vacate and hand over possession to the plaintiff. This Court is of the considered opinion that there is no error or illegality in

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HC-KAR

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the findings recorded by the Trial Court. The judgment and decree impugned, being well reasoned and supported by the evidence on record, do not warrant any interference in these appeals and the point framed for consideration is answered accordingly and this Court pass the following:

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ORDER

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