» Age: 60 yea1*'-3;
IN THE HIGH COURT OF KARNATAKA AT BANGALORE;
DATED THIS THE 2% DAY OF DECEMBER 20_m_' ' ~
BEFORE
THE HONBLE DR. JUSTICE K. B£1;4K*1*:=;AVA1*s}§.L+; '
REGULAR I+"'IRS'1"'APPEAL N0.17€)2'/29.10 {1;5'Q_s}'~ . ~. "
A/W? V
MISQCVL. NO.176é}3,/2010 . V V'
BETWEEN
M. Krishnoji Rao. _E .
Age: 49 years. V '
S/0 late Muniyoji Rae, ' ._ 3' " _
R/0 a Portion of No.5?/*.}4'1,AE;;jEEE.E.' 4' _
IF100r, V Cross, " " . V" ~
K P Agrahara,
MagadiROad, ' .
Bar1gal0re--56O _ ' Appellant
{By Sri M S \.'aradafEjED ,' A.'dV.., 'fO'In" $appellar1tO
1 . snjii,.__J' % t34Vé1.iE,_ '_.
late
-- ~2.:_f~-Smt-., M Ashav Bai,
Agéz' 3?V»yczu_'_s,
VJ/o..sm'Gc_;pa_1 Rat).
Usha Bai,
"V . _Age:. _43'4~"years,
' E E /_Q_ Yeshwanth. Rao.
4. Suit. M Kasturi Bai,
Age: 32 years.
W/0 Sri Prakash Rae.
5. Miss. M Sowmya Bai.
Age: 30 years, ._
D/0 late M Mannaji Rao. :
6. Miss. M. Sunitha Bai.
Age: 24 years,
D/0 late M Mannaji Rao.
7. Miss. M. Hema Maiini.
Age: 24 years.
D/0 late M Mannaji Rae
All are residents of V 1 H ~
No.59/1, V Cross, g A '
K P Agrahara, * 'V ' .
Magad1Taluk, V . . '
Banga1orev56O 023.--. i:_,, 1, V * Respondents
[By Sri T N AraAI'x«eVsV4.rara, i:"V():=._:res1§0ndent.s0
This 'First is filed under Section 96 of the Code
of CiVilyPrQcedure, .aga.iI1st the judgment and decree dated 9.7.2010
passed in (Jr.S'--N0...7fiQ8«,/2007 on the file of XI} Add}. City Civil &
Sessions. J-€1_d.ge;tiarigaibre, decreeing the suit for possession and
Zgdamages. A
' 'VMisc.C'vi~..NC_.1v7643/2010 is filed under Order 41 Rule 5 r/w
9 'See'ti0n"' 3.5.1 of P C. praying to pass an interim order staying the
ohperatitrny Ofthe judgment and decree dated 9.7.2010 passed in 0 SD
. N0 7530982/V1997 on the file of XI} Addl. City Civil Judge, Bangalore City
' "'tCC_H;27).'.
These cases coming on for Admission this day, the Court
delivered the following: 7
JUDGMENT
Learned Counsel for the appellant
could not deposit the arrears of _darnages7._as pe1″i;.o1’der”*. dlatedap
3.11.2010 on the ground that the appellant; cou1Vci._n(5ti .a;r1’a’ngelfunds.
2. Although the case is ‘l._for§_ with the consent
of the learned Counsel appearir1vgV–for.theAparttevsll arguments for
final disposal.
3. This Appeal’ d’tree’ted against judgment and
decree dated __l\lo.7508/2007 on the file of XII
Addl. City Civi1Judge at ‘Ba{1ga’1e.1}’é’ City.
C’ ‘r’o;~”me: purpose’offleonvenience and better understanding,
the a15,pe’11a1″u– _1fe.spondent Nos.1 to 7 are hereinaft(:1’ referred
‘the .dlefe11d.alnlt.”land ‘the plaintiffs’. respeCti.vely, as arrayed in
— « s_m’.::..
. V bestated as under:
.l’he”:brief facts of the case leading to the filing of the Appeal
L
Respondent Nos.l to 7/plaintiffs filed a suit on 14.9.2007
against the present appellant/defendant contending that the’p.r’ope1*ty
bearing Sy. No.59 originally belonged to one Jothoji ;_.~,:aid
Jothoji Rao had only four daughters Viz..
Subbubai and Susheelabai. The 15*
Rao, Dattatreya Rao and the defendant are the sons”.jShantabaiap
{daughter of Jothoji Rao). During t:he time ofsaidt ffothpjlillffiao, he
settled his property bearing Sy.~..No.59]Wlt further pleaded that the
eastern portion of the propertylrtzeaslurijng west 50′ north to
south 29.5′ was gifted ‘Rap’. lfihata of the property
was transferred in §fav5iir”ofl’l_\/[antiajiRap “andit was numbered as Sy.
No.59/1. The wals. bequeathed under a Will in favour
of Subbubai retained number as 59. The said Subbbai
bequeathed _th.epwes’tern ‘portion of the property in favour of her only
dailgfhter vlvhowlis enjoying the property as absolute
oWner.__ that the plaintiff No.1’s husband {Mannaji
Ran) died leaving behind the plaintiff and children viz.,
No.-3.2 7. After the death of Mannaji Rao, the property
“No.59 was transferred in favour of the .15” plaintiff and the
plaintiiil’ is regularly paying the property tax and she is in
‘afolposslessioli and enjoyment of the same. It is pleaded in paraw7 of the
U:
plaint that the defendant is none other than the younger brother of
the deceased Mannaji Rao. it is stated that Mannaji Rao permitted
his younger brother to reside in a portion of the property Sy.
No.59/1. which comprises of a bedroom. kitchen
the 1*” floor and as mentioned in the schedule at y
contended that after the death of Manna3’i_Rao..
creating all sorts of problem near_th_e suit.._schedule’l’ property and”;
picked up quarrel on one pretext oi:Vt:he women folk.
Therefore, the plaintiffs decided “to e\3’ilct:_th’e« defendant, accordance
with law. They issued a legal notice calling upon the
defendant to vacate de1iver’pr_1.S.session of the suit
schedule proplertyi: wassent under RPAD and Under
Certificate of P’o’st_ing, sent by RPAD was returned with
an endorsement ‘ ‘lo’ckf;’ notice sent by UCP was not
reiluriiedi comply with the request made in the
noticei.arid.t;hAere;ibre was filed for possession as well as damages.
defendaiit entered appearance. He has admitted the
between them, but denied that the suit schedule
gifted by the original owner of the property in favour of
Ma-r}naj’i”lRao, etc. In nutshell. the case of the defendant that. he is
he
6
also eo–owner of the suit schedule property and the plaintiffshave no
right to evict him and seek possession of the suit sehedule:A;vl3p”ar;vd C
properties, and prayed for dismissal of the suit.
In view of the pleadings on reeord;;.lthe_fltrial”‘. ‘
following issues:
{1}
(ii)
[iii]
l V V’ ‘[‘vii}
Whether the plaintiffs pro:ve~vV_t’l’:at the ” property bearing
No.59, 51″ Cross,’E;§”E§. Ag.rah..ara’;..V_iis/ivaggadi Road, Bangalore,
originally belonged ‘P
Whether the.__plaintiifs’:l:fL1rthe–rV_ progrevlthat said Jothoji
Road gifted lloflllihe property bearing
No.59lin ‘Rab as per gift deed dated
Whetherslthe’:p.l:ainti£t%s'”prove that they became the owners
of suit’ sche.di1le’*oro.r)e1t as le fal re resentatives of Sri
_ v y s p
l_\/lannaj-i
ltheplaiaitiffs prove that the defendant is in
of suit’ schedule property with permission of
_ ‘V Rao 1?
rlhe plaint:iil”s prove that they are entitled to
redo}/erllpossession of suit schedule property ‘?
_ Whether the plaintiffs prove that they are entitled to
‘ll-ecover damages at the rate of Rs.2,500/– per month
from the defendant ‘?
Whether the defendant proves that he is in possession of
suit: schedule property as co~o\>vne1′ ‘?
L
{viii} Whether valuation of this suit is proper and eojtlrt fee
paid is sufficient ?
(ix) Whether the defendant. proves that this suit”‘is’ub.y
law of limitation ?
{X} What. order or decree ? ._
In support of the ease of the_.p_laintiffs,”‘plaintiff
herself examined as P.Wl and gotj”r«g.r::i1a.rked The
defendant has got himself examgineddnlags has not got
marked any documents. The arguments,
perusing oral and do.c11:1g;1enta§f3Ai’ answered issue
Nos.1 to 5 and 38″ No.6 partly in the
affirmative and in””th–e;11egative in favour of the
plaintiffs andfa_gai.ns’t:v decreed the suit, directing
the defendant tolaqguit; Vacant possession of the suit
schedule in the plaintiffs within 3 months from the
dateof judgn1er1t;.pE?t:ii’ther, the trial Court has held that the plaintiffs
‘jzare ent”it:le&’cl._for” at the rate of ?1.000/ — per month from the
VTcg1atVe.of suit’ti1l’*-Vhanding over possession from the defendant. This is
this Appeal.
t£,ea1’ned Counsel for the appellant submits that though the
V’-d:app4el’1a;1t / defendant has specifically denied the gift deed said to be
L
executed by the original owner of the property in favour oif.-Mannaji
Rao, the trial Court erred in observing; that the dei’endant.”-htiais ~1’10t
denied the gift deed. It is also contended that the en deedlllisibriott.
proved as required under Section 68 0f.~t:»h.e_, Inctlianvlpllfiltridelricii Acts; C
Therefore, the trial Curt erred in dec1″e’eiz1§’_’lthe :lsu_:it…:
contended that the appellant/defeiidant is a Vcc;~ovlvlneii._:loi'”the suit’
schedule property and his brother–Dat_tatreya._yRaolhasfifiled a suit for
partition with reference to ‘Sy. No.59/ 1 and
another property and the suit he submits that
the impugned and the matter
may be rernittedi with liberty to the
respondents/ alleged gift deed as required
under law and dispose ‘(J’V£.”t;V].’iéV’i:’1f1’.l.t::L afresh.
7. Learned Couri’seVI______l.’or the respondents submits that the
Appeal» nV1ay_bevA_d«isp.osed off as submitted by the learned Counsel for
It is perti11ent. t.o mention that the atleged gift deed at EXP 1.
a, document. Ex.P}(a) is the certified copy of the gift
submitted by the learned Counsel for the respondents that
‘neiV4’t1’21e_tt’tle deeds have been produced for the purpose of borrowing
L
9
money. Except examining plaintiff No.1, there is no evidence placed
on record to prove the gift deed said to be executed by in
favour of Mannaji Ran. As per Section 88 of the Indian:–«Evide’n’ce:’ikc’t;v,
if a document is required by law to be attested, i_t..s”haial.fnot’ bleguseld ‘ .
as evidence until one attesting witness at lefast”has_ beeii cal’leEi?.tfo1’
the purpose of proving its execution, ‘i£_thereVbe an a_tte<stin.g, Witness '
alive, and subject to the process of and of giving
evidence. In this regard, learnc.dV:"C_oufinsei:vlioi=_the'a,ppellant relies on a
decision reported in 1959 Myst. (i§iii;z:1B§}5ii"§iéi':i&1Ai2As1MHAPPA Vs.
LAKKANNA AND there is nothing to
indicate the the executant. But the
denial shoulft xuthatwthe person by whom the
document purporrtstol has not executed it. The
decision reported 148 supports the case of the
t.here"is««no need to dwelt upon the merits of the
case,' ._.Z{r'i it'twuould meet the ends of justice if the impugned
WV l"ju»dgn1ent and set aside and the matter is remitted back t.o
» trial Court, with a direction to afford an opportunity to the parties
.._adctoce"""further evidence. if any, with regard to proving the
V. Ex.P1[a) or the gift deed, as the case may be, and dispose
' "o.f_l' the suit afresh, in accordance with law.
/
it)
10. in the result, the Appeal is allowed and the impugned
judgment and decree 937.2010 made in o s No.7508/29;)?Vierflttiel.me
oi’X1I Add}. City Civil Judge at Bangalore City, are
matter is remitted back to the trial Co.urt~–t.o d-‘ilspose’l:.’oft’lthe 51,111?
afresh, in accordance with law, in the light ofthle obsertratiofiarhade
above, not later than six months i”rol1Ca’tite date 1*eoeiptll”of”reeeords. C
The parties are directed’~~t¢o aploear:l:7oel..fore the Court tor
further proceedings on 10. l
The Regist1’y”‘is” LCR to the trial Court
forthwith. …. L’ C’ V A C
S 1,5…
}UDG”§’..