Ms Bollamma B M Vs Ms Padma R

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NC: 2025:KHC:1886 RFA No. 259 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF JANUARY, 2025

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BEFORE

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THE HON'BLE MR JUSTICE K.NATARAJAN REGULAR FIRST APPEAL NO. 259 OF 2023 (INJ-)

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BETWEEN:

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MS. BOLLAMMA B M AGED ABOUT 45 YEARS D/O B. B. MACHAIAH, R/AT NO.497, FF-5, ELEGANT EMBASSY, 17^TH CROSS, IDEAL HOME SOCIETY LAYOUT, RAJARAJESHWARI NAGAR, BENGALURU - 560 098. …APPELLANT

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(BY SRI. M.T.NANAIAH, SENIOR COUNSEL FOR

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SRI. PRABHU GOUD B TUMBAGI, ADVOCATE)

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AND:

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Digitally signed by VEDAVATHI A K Location: High Court of Karnataka

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MS. PADMA R AGED ABOUT 43 YEARS, D/O RAMAIAH, R/AT NO.497, FF-5, ELEGANT EMBASSY, 17^TH CROSS, IDEAL HOME SOCIETY LAYOUT, RAJARAJESHWARI NAGAR, BENGALURU - 560 098. ALSO TO BE SERVED MS. PADMA R NO.4, SUNRISE CHAMBERS, ABOVE RAYMONDS SHOWROOM, OPP. KLE COLLEGE, NAGARABHAVI BDA COMPLEX, II STAGE, NAGARABHAVI, BENGALURU - 560 072.

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…RESPONDENT (VIDE ORDER DATED:01/07/2024 NOTICE TO SOLE RESPONDENT IS HELD SUFFICIENT)

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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 17.11.2022 PASSED IN OS No.5403/2016 ON THE

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NC: 2025:KHC:1886 RFA No. 259 of 2023

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FILE OF THE LXVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, DISMISSING THE SUIT FOR PERMANENT INJUNCTION.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE K.NATARAJAN

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ORAL JUDGMENT

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This appeal is filed under Section 96 of CPC for setting aside the judgment dated 17.11.2022 passed in O.S. No.5403/2016 by LXVIII Additional City Civil and Sessions Judge, Bengaluru City.

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Heard the arguments of learned counsel appearing for the parties.

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The appellant is plaintiff and the respondent is the defendant before the trial Court. The rank of the parties is retained as before the trial court, for the sake of convenience.

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The case of the plaintiff before the trial Court is that she has filed a suit against the defendant for mandatory

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injunction for direction to the defendant to vacate the suit premises along with her baggage and belongings and also for permanent injunction restraining her from interfering with the possession of the plaintiff in respect of the suit schedule property. It is alleged by the plaintiff that she is the lawful owner of the suit schedule property i.e., flat bearing No.FF-5, 1st Floor, Elegant Embassy, 17th Cross, Ideal Home Society Layout, Rajarajeshwari Nagar, Bengaluru (hereinafter referred to as 'suit schedule premises'), having purchased the same under a registered sale deed dated 19.05.2011 from Smt.B.Prabha and Sri.M.Subramani, the vendors of the flat, for a total sale consideration of Rs.21,25,000/-. The plaintiff is gainfully employed and presently working with Wipro Ltd., Koramangala, Bengaluru, and before this the plaintiff had worked for more than 16 years in other organization. The plaintiff in order to pay the sale consideration amount to the vendors, availed housing loan from LIC Housing Finance Ltd., Hayes Road, Bengaluru. She is regular in payment of monthly EMIs of the housing loan and she has been paying the monthly EMIs with herself earnings/income. The plaintiff is in lawful possession and enjoyment of the suit schedule premises. The

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NC: 2025:KHC:1886 RFA No. 259 of 2023

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plaintiff is also paying the electricity charges to the BESCOM and has taken gas connection and also paying the property tax and maintenance charges in respect of the suit schedule premises. The defendant being the friend of the plaintiff requested the plaintiff to allow her to stay in the said premises along with the plaintiff for few months with an assurance that as soon as she secured any other premises for rent, she would vacate the said premises. The plaintiff allowed the defendant to stay with her in the suit schedule premises with her bag and baggage. Thereafter, defendant started to cause harassment and threatened plaintiff that she will not vacate the premises. Therefore, the plaintiff lodged a police complaint and thereafter, the plaintiff filed the aforesaid suit for eviction.

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In pursuance of the summons, the defendant appeared and filed written statement denying the material averments of the plaint. It is contended that the suit of the plaintiff is misconceived and the virtual facts have been twisted by the plaintiff according to her convenience to mislead the court by giving false, baseless and concealed material facts. The defendant has admitted the fact that the plaintiff presently

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has been working in Wipro Ltd. Both the plaintiff and defendant were known to each other and they became friends while they were employed in Tata Communication Ltd., and during the said period, the plaintiff stayed with defendant in an accommodation provided by TCL at NGV, Koramangala, and later, at Raheja Apartment at KHB Layout, Magadi Road. It is further contended that the plaintiff and defendant decided to buy a flat and thus approached M/s Elegant Builders, and decided to buy the suit schedule premises for a total sum of Rs.42 lakhs and for which, advance amount has been paid by the defendant, which is being reflected in the sale agreement. The plaintiff with a mala fide intention, has concealed the said fact. It is the further contention of the defendant that due to technicalities of the Bank in providing loan, the plaintiff had applied for loan in her name and got sanctioned the housing loan in a sum of Rs.32 lakhs, towards the purchase of schedule property, from the LIC Housing Loan Finance Ltd. Both the parties mutually agreed to make equal investments for the purchase of suit schedule premises and shall make payment as per the investment. It was also agreed that the remaining amount of Rs.10 lakhs plus registration cost including purchase

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of stamp duty, advocate fee etc., shall be equally borne by the plaintiff and defendant and the plaintiff was supposed to pay an amount of Rs.6,83,392.50, as the defendant had already paid an amount of Rs.2,05,001/- as advance amount and also had spent a further sum of Rs.3,66,785/- towards registration fee and purchase of stamp duty. It is further contended that till June-2016, the defendant has paid her share of EMI of Rs.16,000/- by way of cash towards the housing loan availed for purchase of the schedule premises. As per the mutual understanding, the defendant has been taking care of other monthly household maintenance such as purchase of ration, domestic needs, payments for domestic help, hosting of guests etc., and moreover the defendant has invested huge amount of Rs.4 lakhs towards furnishing, painting and interiors of the schedule premises. The plaintiff and defendant had seen couple of flats, for which defendant had made advance payment of about Rs.5 lakhs to one Paras Builders, which was later canceled and the amount was repaid to the defendant's account. Apart from the above payments/investments towards purchase of schedule property, the defendant has made cash payment of Rs.5,50,000/- to M/s Elegant Builders and

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Developers. Till date, the defendant has paid a sum of Rs.9,60,000/- towards the EMI by cash to the plaintiff and in all, the defendant has invested a sum of Rs.24,81,786/-. It is also contended that the sale deed in respect of the suit schedule premises was executed in the name of the plaintiff only for the sake of convenience as the defendant trusted the plaintiff. Hence, prayed for dismissal of the suit.

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

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1. Whether the plaintiff proves that she is the exclusive owner of the suit schedule property and has purchased the same under a Registered Sale Deed dated 19.05.2011 from her vendors?

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2. Whether the plaintiff proves that she had permitted the defendant to stay in the suit premises along with her (plaintiff) temporarily with the defendant bag and baggage?

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3. Whether the plaintiff proves that the defendant had undertaken to vacate the suit premises as soon as she gets an accommodation elsewhere?

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4. Whether the plaintiff proves that defendant has failed to keep up her words and has caused

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interference with the possession of the plaintiff over the suit schedule property?

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5. Whether the plaintiff proves that defendant is liable to pay damages at Rs.20,000/- per month from the date of suit?

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6. Whether the plaintiff is entitled for the mandatory injunction as sought for?

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7. Whether the plaintiff is entitled for

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permanent injunction as sought for?

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8. Whether the plaintiff is entitled for damages as sought for?

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9. What Order/Decree?

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On behalf of the plaintiff, she got herself examined as P.W.1 and got marked Exs.P.1 to P.35. on behalf of the defendant, she got herself examined as DW.1 and got marked Exs.D.1 to D.28.

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After hearing the arguments, the trial Court considered issue No.1 in the Affirmative and issue Nos.2 to 8 In

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the Negative and ultimately, dismissed the suit. Being aggrieved by the same, the plaintiff is before this Court in this appeal.

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Learned senior counsel for the appellant has contended that the trial Court has erroneously dismissed the suit of the plaintiff and when the same was challenged before this Hon'ble Court by filing an appeal, this Court remitted the matter back for fresh consideration to give an opportunity to hear the defendant. Thereafter, once again, the matter was heard and there was no additional evidence led by the parties before the trial Court and therefore, the suit was dismissed by the trial Court, which is not correct. Even if the amount is paid to the plaintiff, the same is to be recovered by the defendant by way of filing a suit for recovery of money. The sale deed is in the name of the plaintiff and therefore, the ownership in the name of he defendant does not arise, and she cannot seek any right over the property and therefore, the trial Court without considering the evidence on record has wrongly dismissed the suit. Hence, the learned counsel prayed for allowing the appeal.

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Notice issued to respondent by this Court is held sufficient vide order dated 01.07.2024.

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NC: 2025:KHC:1886 RFA No. 259 of 2023

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Having heard the learned counsel appearing for the parties, perused the records.

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The points that arise for consideration are :

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(i) Whether the trial Court has committed an error in dismissing the suit, when it was held that the appellant-plaintiff was the absolute owner of the suit schedule property ?

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(ii) Whether the judgment of the trial Court calls for interference ?

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(iii) Whether the appellant-plaintiff is entitled for eviction of the respondent-defendant over the suit schedule property?

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Perused the records, especially, the issue No.1 answered the trial court where the plaintiff herself was examined as P.W.1 and got marked the documents such as the confirmation letter, statement of accounts, BESCOM bills, gas refill vouchers, maintenance charge receipts, tax paid receipts, acknowledgment from LIC Housing Finance, Encumbrance Certificate, certified copy of the sale deed, which clearly reveals

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that the suit schedule property has been purchased by the plaintiff in her name. The statement of the HDFC bank also

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NC: 2025:KHC:1886 RFA No. 259 of 2023

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reveals that the amount was paid by the plaintiff towards maintenance, etc. Ex.P.1 is the application of loan from the LIC Housing Finance, Ex.P.32 is the sale deed, which stands in the name of the plaintiff. The trial Court has also held that the plaintiff is the absolute owner of the suit schedule property and therefore, there is no need for the Court to give findings on issue No.1 to say that the plaintiff has established that she is the owner of the suit schedule property.

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As regards the issue Nos.2 to 8, the trial Court has relied upon the evidence and documents of the respondent, where it is an admitted fact by P.W.1 in her cross-examination that she has received some amount from the defendant. It is also admitted that in some of the documents produced by the defendants, the plaintiff has stated that the plaintiff and the defendant agreed to purchase the property and she has raised the loan from the LIC Finance Ltd. The respondent also produced some of the documents to show that she ha also produced spent some amount towards purchase of the suit schedule premises. As per the very pleadings, the defendant

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and the plaintiff are the friends residing together in the premises.

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Now, the question is that for paying some amount to the plaintiff for the purpose of purchasing the property whether the defendant becomes the owner of the said property. As contended in the evidence and the written statement of the defendant, the schedule premises stands in the name of the plaintiff. As per the sale deed executed, the name of the plaintiff shows with the sale consideration mentioned as Rs.21,25,000/-. For purchasing the suit schedule premises, the plaintiff paid the amount of Rs.1,00,000/- by way of cheque No.126859 and Rs.1,00,000/- by cheque No.26860 and Rs.2,25,000/- by cheque No.126863, and for the remaining amount, she raised the loan from the LIC Housing Finance Ltd., Hayes Road, Bengaluru, totaling to Rs.21,25,000/- and the sale deed has been executed in the name of the plaintiff. It is the contention of the defendant that she has paid the amount of Rs.21,00,000/- to the plaintiff for the purpose of the purchasing the suit schedule premises. But the sale deed reveals only the sale consideration of Rs.21,25,000/-. Such

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being the case, the contention of the defendant that she has contributed the amount to the plaintiff for the purpose of purchasing the suit schedule premises, cannot be acceptable. Even otherwise, if any amount is paid by the defendant to the plaintiff and any EMI is deposited by the defendant on behalf the plaintiff, it cannot be a ground for the defendant to claim ownership over the suit schedule property and further, it is not in the joint name of both plaintiff and the defendant.

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Both the plaintiff and the defendant are working in a company and both of them are directors as per the documents produced by the defendant. The defendant being the director, if contributed some money, she could not have allowed the plaintiff to purchase the suit schedule premises in her name. Further, if the defendant has given money by way of loan or in any source, she has right to recover the same by way of filing a suit for share. Merely stating that the defendant has invested some money for the purpose of purchasing the suit schedule premises by the plaintiff, will not create any right over the premises for claiming ownership in the property which is in the name of the plaintiff. The plaintiff has allowed the defendant to

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reside in the premise. As per the documents, the plaintiff is the owner of the property and the defendant has already left the home of the plaintiff. However, the defendant has claimed right over the property.

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Considering the evidence on record, even though if the defendant has paid any amount to the plaintiff, either be way of investing or by paying installment for loan amount or by paying cash on behalf of the plaintiff, she cannot claim any right over the suit schedule premises. If at all, she the defendant want to claim any right over the property, she has the option of filing a suit but, not in this appeal. Even the defendant has not filed any counter suit claiming a share in the property. Once the court has held that the plaintiff is the absolute owner of the property and the defendant has already left home the premises, the question of granting any mandatory injunction does not arise.

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The dismissal of the suit of the plaintiff by the trial Court, is not correct. Therefore there is necessary for this Court to interfere with the said order. If at all the defendant is having

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any right, title over the property, she can agitate the same by filing a suit for her share.

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In the result, the following order is passed:

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(i) This appeal is allowed.

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(ii) The judgment and decree dated the judgment dated 17.11.2022 passed in O.S. No.5403/2016 by LXVIII Additional City Civil and Sessions Judge, Bengaluru City is set aside.

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(iii) The suit of the plaintiff is decreed in part.

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(iv) The respondent-defendant is restrained from

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interfering with the schedule premises of the plaintiff.

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(v) No order as to costs.

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Sd/(K.NATARAJAN) JUDGE

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CS List No.: 1 Sl No.: 66 CT:SK

Ms Bollamma B M v. Ms Padma R

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Ms Bollamma B M v. Ms Padma R

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