Karnataka High Court
Sri Vaidyanathan R vs Smt D Sunayana on 4 April, 2024
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MFA No. 1688 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
MISCELLANEOUS FIRST APPEAL NO. 1688 OF 2024 (CPC)
BETWEEN:
1. SRI VAIDYANATHAN R
S/O LATE B RAMAMURTHY,
AGED ABOUT 59 YEARS,
R/AT NO. 1367, 24TH MAIN,
27TH CROSS, BSK II STAGE,
BENGALURU-560070.
...APPELLANT
(BY SRI. RAJESWARA P N.,ADVOCATE)
AND:
1. SMT D SUNAYANA
D/O V DAYANANDA
Digitally AGED ABOUT 42 YEARS,
signed by BS R/AT NO. 7, IV TH MAIN,
RAVIKUMAR
Location:
ROAD, CHAMRAJPETE,
HIGH BENGALURU-560018.
COURT OF
KARNATAKA
2. SRI V DAYANANDA
S/O LATE K VENKATACHALAPATHY SHETTY,
AGED ABOUT 76 YEARS,
R/AT NO. 7, IV TH MAIN,
ROAD, CHAMRAJPETE,
BENGALURU-560018.
3. SRI D VENKATESH
S/O V DAYANANDA
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MFA No. 1688 of 2024
AGED ABOUT 47 YEARS,
R/AT NO. 7, IV TH MAIN,
ROAD, CHAMRAJPETE,
BENGALURU-560018.
...RESPONDENTS
(BY SMT. DEEPA V., ADVOCATE)
MFA FILED UNDER ORDER 43 RULE 1(r) OF CPC,
PRAYING TO SET ASIDE THE ORDER DATED 13.03.2024
PASSED ON I.A. NOs. 1 AND 2 IN O.S.NO.8274/2023 ON THE
FILE OF THE XIX ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU (CCH-18).
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff in O.S.No.8274/2023 on the file of the
XIX Additional City Civil and Sessions Judge, Bengaluru
has filed this appeal challenging the order dated
13.03.2024, by which, the applications filed by him under
Order 39 Rules 1 and 2 were rejected.
2. For the sake of convenience parties are referred to
as per their ranking before the trial court.
3. The suit in O.S.No.8274/2023 was filed for the
following reliefs:
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"(i) Declare that the plaintiff has become the
owner of the property by perfecting his title by way
of adverse possession;
(ii) Consequently, pass an order of permanent
injunction restraining the defendants, their agents,
representatives, servants or any one claiming
through or under from interfering with plaintiff
peaceful possession and enjoyment of the suit
schedule property;
(iii) Consequently, pass an order of
permanent injunction restraining the defendants,
their agents, representatives, servants or any one
claiming through or under form alienating
encumbering creating any third party rights with
respect to suit schedule property"
4. The suit property was bearing No.7, 4th Main road,
Chamarajapete, Bengaluru - 560 018. The plaintiff
claimed that his father was inducted as a tenant in the suit
property on a monthly rent of Rs.60/-. The father of
defendant No.2 was the owner of the suit property and the
defendant No.2 was collecting the rent till July 2004.
However, from August 2004, the defendant No.2 did not
turn up to collect the rent. The defendant No.1, being the
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daughter of the defendant No.2, claimed that she was
allotted the suit property towards her share. The plaintiff
refused to pay any rent to her since he did not recognize
the defendant No.1 as the owner. He claimed that since
basic amenities were not provided in the suit property, he
refused to pay any rent to her, even if she was the owner
of the suit property. The plaintiff claimed that he
continued to occupy the suit property in a hostile manner
for a period of more than 12 years from 16.08.2004. The
plaintiff claims that the defendant demanded the rent but
the plaintiff refused to pay the rent and that by adverse
possession he became the owner of the suit property. The
plaintiff contended that as the property needed some
repairs, he temporarily shifted his residence to the address
mentioned in the cause-title, but he left his belongings in
the suit property. He claimed that he used to visit the suit
property on and off, but on 14.12.2023 he came to know
that the defendant No.3, acting on the instructions of the
defendant No.1 was trying to demolish the building that
stood over the suit property. The plaintiff allegedly lodged
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a complaint before the police who registered crime
No.208/2023. The jurisdictional police did not assist the
plaintiff in any manner and therefore the plaintiff
apprehending that his possession and enjoyment in the
suit property would be disturbed by the defendants, filed a
suit for the aforesaid reliefs.
5. Along with the suit he filed two applications under
Order 39 Rules 1 and 2 to restrain the defendants from
interfering with his possession in the suit property and also
from demolishing the building that existed over the suit
property.
6. The suit was contested by the defendant No.1
who claimed that she had derived the suit property in
terms of the partition deed dated 16.08.2004 between the
defendant No.2, defendant No.3 and the defendant No.1.
She claimed that property that was allotted to her was
constructed 100 years back and was in a dilapidated state
not fit for human habitation. She claimed that the building
was not used for residential or any other purposes for
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almost 20 years. Thus, with an intention to construct a
new building for her personal use, she commenced
demolition of a portion of the building with a bonafide
intention. It was at that stage that the plaintiff, his son
along with some local goons visited the place and started
abusing the defendants. She contended that the suit
property was rented 40 years ago to the father of the
plaintiff and that the premises was vacant for nearly 20
years prior to the filing of the suit. She also admitted that
the plaintiff's father and plaintiff were tenants of a small
portion measuring 15 ft. x 20 ft. but claimed that the
same was vacated about 20 years ago and that the
plaintiff was not residing therein. She claimed that since
the property was in a dilapidated condition and could not
be put to any use, she desired to demolish and took steps
in that regard and at that stage, the plaintiff claimed that
he was in possession of the suit property. The applications
filed by the plaintiff for interim injunction was resisted on
similar grounds.
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7. The trial court, after considering the contentions
urged by both the parties, rejected the applications in
terms of the impugned order dated 13.03.2024 on the
ground that the plaintiff did not produce any documents to
show that he was a tenant in the premises from the year
2004 and onwards. It also held that the photographs
placed on record indicated that the suit property was not
fit for human dwelling. It also held that the plaintiff did
not produce any documents to show that he was in
physical possession of the suit property as a tenant. It
also perused the electricity bills produced by the plaintiff
which indicated that it was for the period 03.11.2023 to
03.12.2023 and the previous reading was shown as 9128,
and the last reading was shown as 9128, which indicated
that there was no consumption of electricity in the suit
property. Likewise, the water bills placed on record
showed the previous reading as 2156000 and the last
reading was shown as 2148000 and there is no
consumption of water from December 2011. It also held
that the plaintiff at one breadth claimed that he was a
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tenant but on the other claimed that he had perfected his
title by adverse possession which were incongruous.
Consequently, it refused to grant any interim relief to the
plaintiff and hence rejected both the applications filed by
the plaintiff. Being aggrieved by the said order, the
plaintiff is before this Court in this appeal.
8. Counsel for the appellant/plaintiff contended that
the respondent No.1/defendant No.1 admitted in her
written statement that the plaintiff and his father were
tenants in a small house constructed in the suit property,
he therefore contended that the plaintiff has demonstrated
that he was in the possession of the suit property. He
contends that unless the defendants demonstrated that
they have taken possession of the suit property in
accordance with law, the plaintiff was entitled to protect
his possession against forcible dis-possession by the
defendants. He contends that bills for the water
consumption charges which was placed before the trial
court indicated that it was for the period commencing from
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November to December 2023 and the previous reading
was 2148000 and the latest 2156000. He therefore,
contends that this establishes that the plaintiff was
consuming water in the suit schedule property. At any
rate, he contends that since the movables of the plaintiff
were still found in the suit property, the plaintiff would be
deemed to be in possession of the same and therefore, the
trial court committed an error in refusing to grant any
injunction. He further contended that the fact that the
plaintiff was a tenant was established from the self
assessment declaration in the year 2008-09 made by the
defendant for paying property tax which indicated that the
suit property was tenanted. He therefore, contends that as
latest as in the year 2008-2009, the defendant too had
acknowledged that the suit property was tenanted and
therefore, it would be construed that the plaintiff
continued in the possession of the suit property.
9. Per contra, learned counsel appearing for
defendant No.1 contended that the property is in a highly
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dilapidated condition and it is impossible for any human
being to reside in the property. He submits that even as
per the case of the plaintiff, since the suit property was
not habitable, he shifted his residence to the address
mentioned in the cause-title. He therefore contends that
the plaintiff was never in possession of the suit property as
a tenant and that his father had vacated the property 20
years back and that the property in question was not
utilized or used for 20 years. He contends that since the
property fell to the share of defendant No.1 and as the
property was in a dilapidated condition, the defendant No.
1 chose to demolish the construction and put up new
construction, at which point of time, the plaintiff came to
the property and raised a claim that he was a tenant in the
suit property. He contends that having regard to the fact
that the plaintiff did not produce any material to show that
he was in possession of the suit property as a tenant, the
trial court was right in rejecting the applications filed by
the plaintiff.
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10. Since at the time of preliminary hearing, the
learned counsel for the plaintiff contended that the
valuables of the plaintiff are inside the house situated in
the suit property and the learned counsel for the
defendant No.1 refused it contending that it is
incomprehensible as to how any person could live in the
house as it is not in a habitable condition. Thus, in order
to ascertain the status of the suit property, this Court
appointed a Commissioner to conduct a local inspection
and submit a report. The Commissioner has submitted a
report which indicates that the property is in a highly
dilapidated condition. The Commissioner has taken
photographs of the suit property from outside as well as
from inside which indicates that a few papers are strewn
in the shelf, a cot and a few broken doors lie nearby and a
rickety ceiling fan is fixed etc. There is no roof of the
house and the flooring of the house is fully damaged. The
plastering on the walls is also damaged and the electricity
board does not show a meter fixed to it. In short, a
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perusal of the photographs does indicate that no sane
individual could be residing in this house.
11. After considering the report of the Commissioner
when the averments of the plaint and the applications for
injunction filed by the plaintiff are perused, except
claiming that the plaintiff was in occupation of the suit
property, there was no material. The only documents that
were placed on record by the plaintiff were electricity and
water bills. The electricity bill could not be in respect of
the suit property as the photograph shows that there was
no meter fixed. Even otherwise, the electricity bill show
that there was no consumption of electricity in the
property. The plaintiff did not produce any material to
show that from the year 2004 till date he was in
possession of the suit property. The documents such as
aadhar card, voters ID, ration cards, etc. which contains
the address of the suit property would not help the plaintiff
to establish that he was in possession of the suit property
as he himself declared in the plaint that he had shifted his
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residence from the suit property to somewhere else.
Therefore, mere mentioning of the name of the plaintiff
and his address in the aadhar card would not indicate that
the plaintiff was in the actual possession of the suit
property. In that view of the matter, the trial court was
right in refusing to grant any order of injunction
warranting interference by this Court.
12. Hence, this appeal lacks merit and is dismissed.
13. However, it is open for the plaintiff to seek
restoration of his possession in accordance with law
subject to he establishing that he was in possession and
was dispossessed from the suit property, without the due
process of law.
Sd/-
JUDGE
CM
