Karnataka High Court
Ms Bollamma B M vs Ms Padma R on 13 January, 2025
Author: K.Natarajan
Bench: K.Natarajan
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RFA No. 259 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
REGULAR FIRST APPEAL NO. 259 OF 2023 (INJ-)
BETWEEN:
MS. BOLLAMMA B M
AGED ABOUT 45 YEARS
D/O B. B. MACHAIAH,
R/AT NO.497, FF-5, ELEGANT EMBASSY,
17TH CROSS, IDEAL HOME SOCIETY LAYOUT,
RAJARAJESHWARI NAGAR, BENGALURU - 560 098.
...APPELLANT
(BY SRI. M.T.NANAIAH, SENIOR COUNSEL FOR
SRI. PRABHU GOUD B TUMBAGI, ADVOCATE)
AND:
MS. PADMA R
AGED ABOUT 43 YEARS,
D/O RAMAIAH, R/AT NO.497,
FF-5, ELEGANT EMBASSY,
17TH CROSS, IDEAL HOME SOCIETY LAYOUT,
Digitally signed by RAJARAJESHWARI NAGAR, BENGALURU - 560 098.
VEDAVATHI A K
Location: High
ALSO TO BE SERVED
Court of MS. PADMA R
Karnataka
NO.4, SUNRISE CHAMBERS,
ABOVE RAYMONDS SHOWROOM,
OPP. KLE COLLEGE,
NAGARABHAVI BDA COMPLEX,
II STAGE, NAGARABHAVI,
BENGALURU - 560 072.
...RESPONDENT
(VIDE ORDER DATED:01/07/2024 NOTICE TO SOLE
RESPONDENT IS HELD SUFFICIENT)
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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RFA No. 259 of 2023
FILE OF THE LXVIII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU CITY, DISMISSING THE SUIT FOR
PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
ORAL JUDGMENT
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.
2. Heard the arguments of learned counsel appearing for
the parties.
3. 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.
4. 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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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.
5. 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.
6. On the pleadings of the parties, the trial Court has
framed the following issues:
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?
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?
3. Whether the plaintiff proves that the
defendant had undertaken to vacate the suit
premises as soon as she gets an accommodation
elsewhere?
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?
5. Whether the plaintiff proves that defendant
is liable to pay damages at Rs.20,000/- per month
from the date of suit?
6. Whether the plaintiff is entitled for the
mandatory injunction as sought for?
7. Whether the plaintiff is entitled for
permanent injunction as sought for?
8. Whether the plaintiff is entitled for
damages as sought for?
9. What Order/Decree?
7. 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.
8. After hearing the arguments, the trial Court
considered issue No.1 in the Affirmative and issue Nos.2 to 8 In
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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9. 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.
10. Notice issued to respondent by this Court is held
sufficient vide order dated 01.07.2024.
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11. Having heard the learned counsel appearing for the
parties, perused the records.
12. The points that arise for consideration are :
(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 ?
(ii) Whether the judgment of the trial Court
calls for interference ?
(iii) Whether the appellant-plaintiff is
entitled for eviction of the respondent-defendant
over the suit schedule property?
13. 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
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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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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. In the result, the following order is passed:
(i) This appeal is allowed.
(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.
(iii) The suit of the plaintiff is decreed in part.
(iv) The respondent-defendant is restrained from
interfering with the schedule premises of the plaintiff.
(v) No order as to costs.
Sd/-
(K.NATARAJAN)
JUDGE
CS
CT:SK
