Karnataka High Court
D N Prabhuswamy vs Mahadevamma K G on 8 February, 2024
Author: Krishna S Dixit
Bench: Krishna S Dixit
-1-
NC: 2024:KHC:5368-DB
RFA No.681 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
REGULAR FIRST APPEAL NO.681 OF 2023 (DEC/POS)
BETWEEN:
D N PRABHUSWAMY,
S/O LT GANGAPPA,
AGED ABOUT 64 YEARS,
R/AT KENGERI GANGAPPA COMPOUND,
1ST MAIN, 1ST CROSS, GANDHINAGARA,
TUMAKURU 572 101.
...APPELLANT
(BY SRI. UMESH MOOLIMANI, ADVOCATE
FOR SRI S V PRAKASH., ADVOCATE)
AND:
1. MAHADEVAMMA K G
D/O LT GANGAPPA
W/O K S SHIVASHANKAR
Digitally signed by R/AT SRI SIDDARAMESHWARA,
SANDHYA S
Location: High
SWAMY FLOUR MILL, B H ROAD,
Court of Karnataka NELAMANGALA TOWN,
NELAMANGALA TALUK 562 123.
BENGALURU RURAL DISTRICT.
2. K C NAGARAJU,
S/O LT GANGAPPA,
AGED ABOUT 64 EYARS,
R/AT KENGERI GANGAPPA COMPOUND,
1ST MAIN, 1ST CROSS, GANDHINAGARA,
TUMAKURU CITY 572 101.
3. HYMAVATHI W/O UMESH,
AGED ABOUT 56 YEARS,
-2-
NC: 2024:KHC:5368-DB
RFA No.681 of 2023
R/AT KENGERI GANGAPPA COMPOUND,
1ST MAIN, 1ST CROSS, GANDHINAGARA,
TUMAKURU CITY 572 101.
...RESPONDENTS
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.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, KRISHNA S. DIXIT J., DELIVERED THE FOLLOWING:
JUDGMENT
This Appeal seeks to lay a challenge of the Judgment and
Decree dated 01st 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.
2. 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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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.
3. 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.
4. On the basis of the pleadings of the parties, the
trial Court framed the following issues:
1. Whether plaintiff proves her title on the suit
schedule property?
2. Whether plaintiff proves that during 2012 the
defendants have dispossessed her from the suit
schedule property by illegal?
NC: 2024:KHC:5368-DB
3. Whether plaintiff proves that she has sustained
damages of Rs.20,000/- as claimed?
4. Whether 2nd defendant prove that he has entered
to the suit schedule property as tenant under the
1st defendant?
5. Whether plaintiff is entitled for the reliefs as
prayed?
6. What order or decree ?
5. In the course of proceedings, representative of
respondents-K.S. Shivashankar (PW1), produced a series of
documents denoted as Exhibits P1 to P42, while appellant-
Prabhuswamy (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.
6. 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.
7. 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 respondent-
Mahadevamma 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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8. 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.
9. 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.2-
K.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.1-
Mahadevamma. These admissions and documents substantiate
respondents' claims in the suit.
10. 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.
11. 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.
12. 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. The trial Court has properly appreciated
the evidence on record in accordance with law and facts as
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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.
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
