(PER: HON'BLE MR. JUSTICE UMESH M ADIGA)
2. Defendant Nos.1 and 2 in O.S.No.25891/2008
RFA.Crob.No.23/2015. All these matters are taken up
3. Plaintiffs in O.S.No.15395/2006 have filed suit
O.S.No.25891/2008 filed a suit for ejectment. After trial,
O.S.No.25891/2008. Same is being challenged in the
present appeals and Cross-objection.
4. The brief facts of the case in Original Suit
defendants was one by name M.J.Edward. He purchased
M.J.Edwards and his wife - Mrs. Florence Kamala Edwards
and their elder daughter - plaintiff No.2. Thereafter, late
daughter. Therefore, both the land, as well as the building
daughter. The said late M.J.Edwards was an employee of
from his employer. Therefore, he had no income for his
and eldest daughter. His wife Florence Kamala Edwards
income. Hence, he had no money to construct a house in
5. It was further contended that the said
Kamala Edwards. Plaintiffs, defendants and their parents
at Bengaluru on 30.04.1996. After the death of
6. It was further contended that the plaintiffs and
the defendants are Christian by religion. Plaintiff No.1 was
succession. The suit property is in joint possession and
are entitled for 1/5th share in the suit property. Plaintiffs
No.1 refused to effect partition. Therefore, plaintiffs were
constrained to file the suit. With these reasons, plaintiffs
7. Defendant No.1 - Mr. Bob Edwards Maddela has
Bengaluru Development Authority) (BDA). The City
18.03.1986 in favour of M.J.Edwards. The said
property. He had constructed a house in the said property
8. Defendant No.1 further contended that, during
registered Will executed by him. This fact was within the
knowledge of plaintiffs and defendant No.2. After the
by late M.J.Edwards. Defendant No.1 applied for transfer
but plaintiff No.1 objected for the transfer of katha.
records in respect of the suit property. Plaintiff No.1
dismissed. The orders passed by the competent authority
9. Defendant No.1 further contended that he was
working abroad. After the death of his mother, the suit
property was vacant from 1996 to 1998. In the year 1998,
tenant, paying rent of Rs.5,000/- per month. In the year
tenant. Initially, plaintiff No.1 and her husband agreed to
pay rent of Rs.5,000/- per month. Defendant No.1 waived
10. Defendant No.1 and his family members
same for their use and occupation. The defendants
time since construction of their house was incomplete.
An e-mail was sent in this regard by the defendants. The
paying rent of Rs.16,000/- per month. When defendants
over the possession along with arrears of rent. The said
Afroze Pasha. Instead of vacating and handing over the
others, got filed this suit for partition.
absolute owner of the suit property. Plaintiffs and
property to seek partition. With these reasons, he prayed
to dismiss the suit O.S.No.15395/2006.
11. From the rival contentions of the parties in the
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IN RFA No.1397 OF 2015
12. O.S.No.25891/2008 was filed by Bob Edwards
Maddela against plaintiff No.1 in O.S.No.15395/2006, as
well as her husband Afroze Pasha, seeking for the
following reliefs:
"(a) To direct the defendants to quit, vacant
and deliver the vacant possession of the schedule
premises to the plaintiffs.
(b) To direct the defendants to pay the plaintiff
a sum of Rs.15,000/- per month towards the
damages for use and occupation for the premises
from the date of the suit till deliver of possession. "
13. The plaint averments in O.S.No.25891/2008 is
more or less similar to the contentions of Mr.Bob Edwards
Maddela in the written statement filed in
O.S.No.15395/2006. He contends that, his father
M.J. Edwards was the absolute owner of the suit property
and he bequeathed the suit property in his favour through
a registered Will dated 25.04.1977. By virtue of the
said Will, he became absolute owner of the suit
property. The suit property was thereafter leased to
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IN RFA No.1397 OF 2015
defendant Nos.1 and 2. From March 2005 onwards,
defendants agreed to pay rent of Rs.15,000/- per month
to the plaintiff, but did not pay the rent as agreed to the
plaintiff. The plaintiff issued a notice dated 28.02.2006
terminating the tenancy and calling upon the defendants
to pay the arrears of rent at the rate of Rs.15,000/- per
month; and to quit and hand over the possession of suit
schedule property to him. After service of the notice,
defendant No.1 of this suit, falsely filed suit in
O.S.No.15395/2006 for partition, without complying the
terms of the notice issued to her. With these reasons, he
prayed for the above said reliefs.
14. Defendants Nos.1 and 2 have filed their written
statement denying the contentions of the plaintiff.
According to their contentions, the suit property was a
joint property of the plaintiff and other children of late M.J.
Edwards. After his death, as per law applicable to them,
each legal representatives are entitled to one-fifth share in
the property. They also denied the execution of the alleged
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IN RFA No.1397 OF 2015
Will in favour of plaintiff by late M.J.Edwards. They also
contended that M.J.Edwards was not the absolute owner of
the suit property and it was a joint property of late
M.J.Edwards and his wife. They also denied the allegation
that they obtained the suit property from plaintiff on lease
and agreed to pay rent of Rs.15,000/- per month. With
these reasons prayed to dismiss the suit.
15. From the rival contentions of the parties, the
trial Court framed the following issues in this case.
" ISSUES IN O.S.NO.25891/2008
1. Whether plaintiff proves that there is a
landlord and tenant relationship between himself and
defendants?
2. Whether suit in the present form for
mere possession is maintainable?
3. Whether plaintiff proves that as landlord
he has terminated the tenancy of defendant?
4. Whether plaintiff is entitled for damages
sought for?
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IN RFA No.1397 OF 2015
5. Whether plaintiff is entitled for the relief's
sought for?
6. What decree or order?
16. It appears, the evidence in O.S.No.15395/2006
was partly recorded and thereafter, as per the order
passed in Miscellaneous Case No.638/2010, by the
Principal District and Sessions Judge, both the suits were
transferred to the same Court and tried together by
clubbing the matters.
17. The trial Court recorded the evidence. Plaintiff
No.1 in O.S.No.15395/2006, by name Mrs.Anjum Pasha
was examined as PW-1 and defendant No.1 in the said suit
i.e., Mr.Bob Edwards Maddela was examined as DW-1 and
he examined 3 witnesses as DWs.2 to 4. No documents
were marked on behalf of plaintiffs in O.S.No.15395/2006
and defendants in O.S.No.25891/2008. On behalf of
defendant No.1 in O.S.No.15395/2006, as well as plaintiff
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IN RFA No.1397 OF 2015
in O.S.No.25891/2008, 35 documents were marked as
Exs.D-1 to D-35.
18. The trial Judge after hearing the arguments of
both the parties and appreciating the evidence available
on record, passed the impugned judgement dismissing
O.S.No.15395/2006 and partly allowing
O.S.No.25891/2008. The trial Court held that the Will
executed by Mr.M.J.Edwards was proved and thus,
defendant Nos.1 and 2 in O.S.No.25891/2008 who were in
permissive possession were directed to hand over the
vacant possession of the suit property to the plaintiff in
O.S.No.25891/2008. However, the trial Court rejected the
prayer of the plaintiff in O.S.No.25891/2008 for arrears of
rent at the rate of Rs.15,000/- per month from the date of
notice till delivery of the possession of the property.
19. We have heard the arguments of learned
counsel appearing for both the parties.
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IN RFA No.1397 OF 2015
20. Learned Senior Counsel appearing for the
appellants in RFA.No.1396/2015 (plaintiffs in
O.S.No.15395/2006), contended that, late M.J.Edwards
was not the absolute owner of the suit property and as he
was dismissed from service, he could not get any
pensionary benefit from the HAL company, where he was
employed. Admittedly, his wife was working in HAL and
she had an independent source of income. She contributed
her income to purchase the suit property and construction
of the house. The trial Court failed to consider the fact that
the suit property was a joint property of late M.J. Edwards
and his wife, Mrs. Florence Kamala Edwards.
21. He further contended that the alleged Will
executed by late Mr.M.J.Edwards, dated 25.04.1977, was
not at all proved. The attestors were said to be dead, but
their death certificates were not placed on record. He
further contended that the legal representatives of the
attestors were examined, but no documents were placed
on record to prove the signature of the attestors on the
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IN RFA No.1397 OF 2015
Will, as well as on the undisputed documents executed
prior to their death by the respective attestors of the Will.
Therefore, the defendant No.1 i.e., Bob Edwards, utterly
failed to prove the execution of the Will dated 25.04.1977,
in his favour. The trial Court has not at all looked into the
said facts. There was non-compliance of the provisions of
Sections 68 and 69 of the Indian Evidence Act. The trial
Court erroneously held that the said Will was proved by
defendant No.1 in O.S.No.15395/2006.
22. The learned Senior Counsel further contended
that the suit was for possession, and not for a relief of
declaration. In the absence of a declaration, a bare suit for
possession is not maintainable. He also contended that,
when the trial Court held that defendant No.1 failed to
prove the relationship of landlord and tenant between
plaintiff and defendant Nos.1 and 2 and hence, directing
the defendants Nos.1 and 2 to deliver the possession of
the property in favour of plaintiff, is erroneous. With these
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IN RFA No.1397 OF 2015
reasons, prayed to allow the appeal and set aside the
impugned judgment and decree passed by the trial Court.
23. The learned counsel appearing for defendant
No.1 in O.S.No.15395/2006 and for plaintiff in
O.S.No.25891/2008 contended that the documents
produced by his client completely corroborate the
contentions of defendant No.1. He examined himself and
produced the original Will that was registered during the
year 1977. Undisputedly, M.J.Edwards died during the
year 1989. The Sale Deed was executed by the BDA in his
favour during the year 1986. Thereafter, late M.J.Edwards
survived nearly for about 12 years and he actively
participated in all the affairs of the family. It is not in
dispute that defendant No.1 and plaintiff No.3 in
O.S.No.15395/ 2006 were minors during 1977 and all the
children were unmarried. Late M.J.Edwards provided
education to his children and performed their marriages.
Under these circumstances, the contentions of the
plaintiffs in O.S.No.15395/2006 that late M.J.Edwards was
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IN RFA No.1397 OF 2015
not in sound disposing state of mind to execute the Will,
is not probable. The said Will was duly acted upon, and
name of defendant No.1 was entered in the revenue
records i.e., katha of BBMP in respect of suit property after
the death of his mother.
24. He further contended that the defendant No.1
had produced the death certificate of two attesting
witnesses, as well as an advocate who identified the
signature of late M.J.Edwards on Ex.D-23 i.e., Will dated
25.04.1977. Therefore, to prove the signatures of
attestors, their respective sons were examined. In their
cross-examination, nothing was brought out to disbelieve
their evidence. The signature of late M.J.Edwards on Ex.D-
23 is not disputed by the plaintiffs. Under these
circumstances, defendant No.1 has proved the execution
of the Will dated 25.04.1977.
25. It was further contended that, undisputedly,
M.J.Edwards died on 02.02.1989 and his wife died on
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IN RFA No.1397 OF 2015
30.04.1996. After the death of both, defendant No.1
became absolute owner of the suit property. Defendant
No.1, who is the plaintiff in O.S.No.25891/ 2008, proved
that defendant Nos.1 and 2 in the said suit were tenants
and, according to e-mail of defendant No.1, she and her
husband agreed to pay rent of Rs.15,000/- per month
from March 2005; but they did not keep up their promise
to pay the rent. When he issued a notice demanding
vacant possession of the property along with arrears of the
rent, defendant No.1 and her husband in
O.S.No.25891/2008 colluded with other sisters, filed false
partition suit in O.S.No.15395/2006. The trial Court has
discussed in detail these facts and it rightly dismissed the
suit in O.S.No.15395/2006.
26. The learned counsel appearing for defendant
No.1 in O.S.No.15395/2006 further contended that,
according to the plaintiffs, wife of late M.J.Edwards, had
contributed for purchase of the property, as well as for
construction of the house, however, no documents were
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IN RFA No.1397 OF 2015
produced on record to prove it. The elder sister of plaintiff
No.1 did not enter the witness box to prove that she had
contributed for purchase of the property or construction of
the house. Without any evidence, they are contending that
they have also contributed for purchase of the property.
The said contention is not believable and the learned trial
Judge has rightly rejected the same and it does not call for
any interference by this Court.
27. The learned counsel for the plaintiff in
O.S.No.25891/2008 further contended that, as per the
e-mail, defendants 1 and 2 agreed to pay the rent of
Rs.15,000/- per month from March 2005. They did not pay
the same and they have not produced any receipt for
payment of the said amount to the plaintiff. On the basis
of the same, the trial Court ought to have held that there
exists a relationship of landlord and tenant between
plaintiff and defendants. The trial Court erroneously
rejected the same. The trial Court also erroneously
rejected the claim of the plaintiff for payment of rent of
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IN RFA No.1397 OF 2015
Rs.15,000/- per month. The plaintiff has been paying rent
of ₹19,000/- to a house wherein he has been residing,
since the defendants refused to vacate and deliver the
vacant possession of the property in favour of the plaintiff.
Under these circumstances, the trial Court ought to have
directed defendants to pay the reasonable amount of rent
from the date of the suit till delivery of the possession of
the property. The trial Court failed to do so and hence,
plaintiff in the said suit filed a Cross-objection praying the
said relief. With these reasons, he prayed to allow the
Cross-objection and to dismiss the appeals filed by
plaintiffs.
28. During the pendency of the appeal in RFA
No.1396/2015, the appellants have filed I.A.No.2/2025
under Order XLI Rule 27 read with Section 151 of CPC,
seeking permission to produce additional evidence and
defendant No.1 has filed I.A.No.1/2025 under Section 151
of CPC to modify the order dated 12.07.2017, wherein this
Court orders and directed the appellants to deposit
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IN RFA No.1397 OF 2015
Rs.25,000/- per month as a rent that might be payable to
the landlord and also the defendant No.1/respondent
requested to modify the said order with respect to
payment of rent from Rs.25,000/- to Rs.50,000/- per
month. Both the said applications are pending for
consideration. No much arguments were addressed
regarding the said documents or reasons for
non-production of the said documents before trial Court.
Hence, the said applications would be considered in due
course.
29. The following points emerge for determination
in the above said two appeals:
1. Whether the learned trial Judge erred in
holding that suit property was the absolute property
of late M.J. Edwards?
2. Whether the learned trial Judge erred in
holding that the Will dated 25.04.1977 executed by
Late M.J. Edwards was proved?
3. Whether The trial Judge erred in not holding
that there was a jural relationship of landlord and
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IN RFA No.1397 OF 2015
tenant between plaintiff and defendants in
O.S.No.25891/2008?
4. What shall be the amount of damage for
which plaintiff in O.S.No.25891/2008, is entitled?
5. Whether the documents produced along with
I.A.No.2/2025 are relevant for effective adjudication
of the matter and whether appellants have complied
the provisions of Order XLI Rule 27 of CPC permitting
them to produce the said document?
6. Whether the modification of the order as
prayed in IA.No.1/25 is tenable?
7. What order?
Reg. Point No. 1 :
30. Plaintiffs in O.S No.15395/2006 were
contending that, from the funds given by their mother, as
well as elder sister, the land was purchased and building
was constructed by the deceased M.J.Edwards. Therefore,
it was a joint property and not an absolute property of
M.J.Edwards. PW-1 Smt.Anjum Pasha, in her evidence
has reiterated the plaint averments. She has not disclosed
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IN RFA No.1397 OF 2015
the amount paid by their mother and elder sister to
purchase the suit property or construct the buildings.
31. In her cross-examination, she pleads ignorance
regarding the date on which site was allotted to her father
and how much amount was paid by her father to purchase
the said land. She was also unable to state the amount of
contribution of her mother and elder sister for construction
of the building. She admitted that to construct the
building, her father obtained loan from Karnataka Housing
Board (KHB), but she was unaware about repayment of
the said loan. Hence, she know nothing about the money
given by her mother and elder sister to purchase the site
and construct the buildings.
32. PW-1's elder sister is a party to the
proceedings, however, she did not enter the witness box
to prove her contributions. Therefore, there is absolutely
no reliable evidence produced by the plaintiffs in
O.S.No.15395/2006 to believe their story that it was a
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IN RFA No.1397 OF 2015
joint property of deceased M.J.Edwards, his wife and elder
sister of PW-1.
33. Defendant No.1, Mr.Bob Edwards was cross-
examined by the plaintiffs in O.S.No.15395/2006. Nothing
was brought out to probabilise the case of the plaintiffs.
The documents produced by the defendant No.1 reveal
that site was allotted to late M.J.Edwards by the City
Improvement Trust Board during the year 1971 and
thereafter, BDA had executed a Sale Deed in his favour
dated 18.03.1986. Both these documents are registered
documents executed in the name of late M.J.Edwards.
34. In Ex.D-23, i.e., Will executed by late
M.J.Edwards, dated 25.04.1977, he had explained in detail
about the amount spent by him for purchase of the land
and construction of the building. It is even mentioned that
he assigned his insurance policy in favour of the Karnataka
Housing Board while obtaining the loan and also
mortgaged the said property. Plaintiffs even have not
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C/W RFA No.1397 of 2015,
IN RFA No.1397 OF 2015
produced the documents to show the date on which
Mr.M.J.Edwards was dismissed or removed from his
service or he did not get any service benefits.
Therefore, plaintiffs have miserably failed to prove that
the suit property was purchased and building was
constructed with the funds contributed by his wife and
elder daughter.
35. On the contrary, the documents produced by
the defendant No.1, Mr.Bob Edwards, i.e., registered
documents reveal that the site was allotted to late
M.J.Edwards by the City Improvement Board by registered
document and later on, in terms of the said allotment
letter, the BDA had executed a registered Sale Deed dated
18.03.1986 in his favour, after receipt of the balance
amount. The learned trial Judge has properly considered
the evidence and has rightly held that, the suit property
was an absolute property of late M.J.Edwards and he
had every right to execute the Will in favour of defendant
No.1. Accordingly, this point is answered in the negative.
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IN RFA No.1397 OF 2015
Reg. Point No.2 - Execution and proof of Will :
36. The defendant No.1 in O.S.No.15395/2006 -
Bob Edwards, contended that late M.J Edwards executed a
registered Will as per Ex.D-23 bequeathing the suit
property in his favour. He had produced the Will before
the Court. He proved that attesters of the Will were no
more at the time of evidence and hence, he examined the
witnesses who were acquainted with the signatures of
attestors of the Will. He has also produced the katha
extract to prove that it was mutated in his name on the
basis of the Will even after it was contested by plaintiff
No.1 before Municipal Corporation.
37. PW-1 in her cross-examination, identified the
signature of her father on Ex.D-23. PW-1 has stated that
she was unaware of the Will till recently; She came to
know about the said Will when defendant No.1 approached
for change of katha in the year 2005. In her further
cross-examination, she admits that from the year 1977,
till the death of her father, he performed all the family
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IN RFA No.1397 OF 2015
obligations i.e., providing education to his children and
performing marriages of his children and construction of
house in the suit property etc., PW-1 in her evidence has
not explained the reasons to contend that her father had
not executed the Will in sound disposing state of mind.
38. Defendant No.1 Mr.Bob Edwards Maddela was
examined as DW-1. In his evidence, he has stated about
execution of the Will (Ex.D-23) by his father Mr.M.J.
Edwards on 25.04.1977 in his favour. In his cross-
examination, nothing was brought out to disbelieve his
evidence. No suspicious circumstances were brought out
to doubt execution of the will. Mere denial of the execution
of the will is not sufficient to discard it.
39. The Will was executed during the year 1977.
Defendant No.1 and his witnesses were examined during
the year 2012 i.e., about 36 years after the alleged Will
was executed. None of the witnesses or scribe of the Will
were alive as on the date of production of the said Will or
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IN RFA No.1397 OF 2015
during the trial. Therefore, defendant No.1 was unable to
examine any of the attesting witnesses to prove the said
Will. Defendant No.1 examined son of a attesting witness
i.e., DW-2 by name M.R.V.Prasad, son of late
M.R.Choudary, who attested Ex.D-23.
40. DW-2 in his evidence has stated about the
death of his father, Mr.M.R.Choudary and his death extract
is marked as Ex.D-1. He identified the signature of
Mr.M.R.Choudary on Ex.D-23 at `a to c'.
In his cross-examination, he denied the suggestions
that Ex.D-23 does not bear the signature of
M.R.Chaudary and he was not the father of DW-2. Nothing
was brought out to disbelieve that, Ex.D-23 bear the
signature of M.R.Chaudary.
41. Defendant No.1 had also examined DW-4,
Mrs.Maddela Vinolia, i.e., sister of late M.J.Edwards.
DW-4 in her evidence has stated that Edwards was
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IN RFA No.1397 OF 2015
discussing with her and others regarding execution of the
Will dated 25.04.1977, and she identified the signature of
her brother i.e., M.J.Edwards at Ex.D-23(a). In her cross-
examination, she has stated that prior to execution of the
Will, her brother M.J.Edwards discussed about it with his
brothers and sisters. She denied that her brother was
mentally not in a sound disposing state of mind.
42. DW-3 was one of the friends of M.J.Edwards
and they were attending churches for prayer. DW-3 has
stated that deceased M.J.Edwards was an active person.
43. A sound disposing state of mind to execute a
document means that the Executant of the document had
knowledge of the document, its nature and consequence.
It does not mean soundness/unsoundness of mind.
In this case, a registered Will was executed during the
year 1977 and the said M.J.Edwards died on 02.09.1989,
nearly about 12 years after execution of the said
document. The Testator did not cancel or modify the Will
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IN RFA No.1397 OF 2015
till his death; Though M.J.Edwards wrote another Will
after Ex.D-23, the same was not executed and acted upon.
It is disputed in the present case nearly after 28 years of
its execution. It shall be considered like any other
document of transfer of title. Since operation of the Will
commences after the death of testator, propounder of the
Will shall prove it in accordance with law. If there are any
suspicious circumstances, that shall be cleared by the
propounder to prove the Will.
44. In this case, The executant of the Will, that is,
late M.J.Edwards, mentioned in detail the reasons for
execution of the Will in favour of plaintiff No.3, as well as
defendant No.1 in O.S.No.15395/2006. He has also given
life interest over the properties mentioned in the Will in
favour of his wife. The Will also discloses that one of the
property may be given to plaintiff No.3 - Smt.Vijaya
Warrior, who was then a minor, at the wish of wife of
M.J.Edwards. It is pertinent to note that the said property
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IN RFA No.1397 OF 2015
is not the subject matter of the present suit and there is
no explanation in respect of the said property.
45. All these facts reveal that late M.J.Edwards had
executed a Will with full knowledge and understanding and
it was known to the parties to the suit. They did not raise
any objection in this regard.
46. Section 68 and Section 69 of the Indian
Evidence Act reads as under:
" 68. Proof of execution of document
required by law to be attested.- If a document is
required by law to be attested, it shall not be used
as evidence until one attesting witness at least has
been called for the purpose of proving its execution,
if there be an attesting witness alive, and subject to
the process of the Court and capable of giving
evidence:
Provided that it shall not be necessary to call
an attesting witness in proof of the execution of any
document, not being a Will, which has been
registered in accordance with the provisions of the
Indian Registration Act, 1908 (16 of 1908), unless
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IN RFA No.1397 OF 2015
its execution by the person by whom it purports to
have been executed is specifically denied.
69. Proof where no attesting witness
found.- If no such attesting witness can be found,
or if the document purports to have been executed
in the United Kingdom, it must be proved that the
attestation of one attesting witness at least is in his
handwriting, and that the signature of the person
executing the document is in the handwriting of
that person.
47. In this case, admittedly none of the attesting
witnesses, as well as the scribe of the Will were alive.
Their death certificates have been produced by the
defendant No.1 to prove it. The contentions of the learned
Senior Counsel for the appellants that, to prove the death
of attesting witnesses, no documents were produced by
defendant No.1, is not tenable, because the documents
are already available on record. Therefore, the only
option available to defendant No.1 was to examine a
witness who was acquainted with the signature of
attesting witness.
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IN RFA No.1397 OF 2015
48. In this case, Mr.M.R.Chaudary was an attesting
witness. To prove his signature, his son was examined as
DW-2 and he identified the signature of his father in
Ex.D-23. In his cross-examination, nothing was brought
out to show that Ex.D-23 was not bearing the signature
of Mr.M.R.Chaudary. Thus, there is sufficient compliance
with the provisions of Section 69 of the Indian
Evidence Act.
49. The learned trial Judge, in the impugned
judgment has discussed in detail about the evidence given
by PW-1 and DW-1 and witnesses in this regard and
rightly concluded that defendant No.1 had proved the
execution of the Will - Ex.D-23. Hence, the contentions of
the appellants in this regard are not tenable. Accordingly,
this point is answered in the negative.
Reg. Point Nos.3 and 4:
50. Pleadings of the parties in O.S.No.25891/2008
are mentioned in the above paras.
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C/W RFA No.1397 of 2015,
IN RFA No.1397 OF 2015
51. During course of evidence of DW-1, nothing
was brought out to show that during the lifetime of mother
of the plaintiff, defendant Nos.1 and 2 occupied the suit
premises as a matter of right, as family members. They
even did not disclose in the written statement or in the
plaint of O.S.No.15395/2006 as to how they came in
possession of the property.
52. In the cross-examination of PW-1, she has
stated that marriage of plaintiff No.3 was performed
during the year 1995. Three to four months after her
marriage, she went to stay in her husband's house and
during that time, her mother alone was residing in the suit
property. After the death of their mother, the suit property
was kept under lock and key. Plaintiff No.1 was working at
Dubai and her husband was serving at Bengaluru and
residing in a rented house at Indiranagar. She has also
admitted that in the year 1997, husband of plaintiff No.2
by name Chelladurai occupied the suit premises.
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IN RFA No.1397 OF 2015
53. PW-1 in her cross-examination has also stated
that, earlier she was residing with her husband in a house
situated at Residency Road, Bengaluru. They sold the said
property and thereafter, they shifted to Cambridge Road
property. The Cambridge Road property was purchased by
her husband. It was demolished and reconstructed
between the years 2001 and 2002. During that period,
they vacated the said house property in the year 2000.
PW-1 has also stated that the said residential house
situated in Cambridge Road property was subsequently
converted into a commercial complex.
54. In her further cross-examination, she admitted
that in the year 2000, they vacated the Cambridge Road
house and started residing in the suit property. PW-1 has
also stated that defendant No.1 in O.S.No.15395/2006
had issued a notice to her to vacate the suit premises, and
she had not replied to the said notice. She denied the
suggestion that she sent an e-mail agreeing to pay the
rent at the rate of Rs.15,000/- per month to the suit
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IN RFA No.1397 OF 2015
schedule premises. She admits that she had an e-mail
account in the name and style "[email protected]". She
denied of sending an e-mail as per Ex.D-10. Ex.D-10 is
not supported by the certificate issued under Section 65B
of Indian Evidence Act. It is also not proved in accordance
with Chapter IV and Sections 12 and 13 of the Information
Technology Act. Both sender and receiver were residing in
Bangalore, why they could not execute a document in this
regard, is not explained. Hence, the learned trial judge
rightly held that Ex.D-10 was not proved.
55. PW-1 occupied the suit property during 2000-
2001, by then, her both parents were no more and
plaintiff in O.S.No.25891/2008 became owner of the suit
property on the basis of Will. Hence, it probabalises the
case of the plaintiff that defendants have occupied the suit
property without any legal right.
56. The contentions of the defendants in
O.S.No.25891/2008 that they occupied the suit property
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IN RFA No.1397 OF 2015
as of right, as members of the family, is not proved.
PW-1 after her marriage was residing in her husband's
house till the year 2003. When that house was
demolished for reconstruction, that time, differences
started between them and they started residing in the suit
property. Under these circumstances, it can be considered
that defendants were residing in the suit property with the
permission of plaintiff. They were in permissive
possession. Undisputedly, plaintiff had sent notice of
termination of lease and called upon defendants to vacate
the property. Plaintiff failed to prove landlord and tenant
relationship. Hence, notice issued to defendants can be
construed as withdrawal of permission and they have been
in wrongful possession of the suit property. Hence, they
are liable to pay damages from the date of withdrawal of
permission by notice.
57. Plaintiff contended that rent agreed by the
defendants was Rs.15,000/- per month. In the cross-
examination of DW-1, nothing was elicited about the
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IN RFA No.1397 OF 2015
same. Undisputedly, the said house is situated in a prime
locality. During pendency of this appeal, this Court
directed the appellants to pay damages at the rate of
Rs.25,000/- per month. Plaintiff has filed IA.No.1/2025
to enhance the same to Rs.50,000/- per month.
Keeping in view of all these facts, it is just and proper to
determine the damages at the rate of Rs.15,000/- per
month from the date of suit till delivery of vacant
possession of suit property.
58. The trial Court has not considered these facts
and has not appreciated the materials available on record
to consider the probabilities in the contention of both the
parties. Therefore, the said finding of the trial Court needs
intervention by this Court. Accordingly, the said point No.3
is answered in the negative and with respect to point No.4,
damages is assessed as Rs.15,000/- per month.
Point No.5 : Regarding IA No.2/2025 :
59. The appellants in RFA No.1396/2015 filed an
application IA.No.2/2025 under Order XLI Rule 27 read
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C/W RFA No.1397 of 2015,
IN RFA No.1397 OF 2015
with Section 151 of CPC seeking permission to produce
additional evidence.
60. It is pertinent to note that the burden of proving
the issues in O.S.No.15395/2006 is on the plaintiffs. The
plaintiff did not produce any documents, including the
revenue records, which is mandatory. The defendant No.1
of the said suit had produced all these documents. He had
not suppressed any documents from the Court. Defendant
No.1 had produced Ex.D-4, i.e., the receipt given by the
Secretary, Karnataka Housing Board with respect to
repayment of the mortgaged money. Therefore, the Bank
Challan dated 09.01.1990 produced along with
application, wherein an amount of Rs.25,633/- was paid to
discharge of the mortgage, is of not much relevance.
61. Further, an affidavit dated 06.01.1990, sworn to
by Mrs.Florence Kamala Edwards, wife of late
M.J.Edwards, is produced. The said affidavit does not
throw light on any of the dispute in the present suits.
Therefore, the said document is also not a relevant
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IN RFA No.1397 OF 2015
document and will not help either of the parties, to prove
or disprove the case.
62. A copy of the indemnity bond and joint affidavit
of all the parties to O.S.No.15395/2006 and their mother
Mrs.Florence Kamala Edwards, are produced on record.
However, these documents are also of no assistance
either to the parties or to the Court in arriving at a
different conclusion. The said documents pertain to the
year 1990, i.e., long before the commencement of the
litigation between the parties. Plaintiff No.1/appellant has
not explained in the affidavit as to how she came to know
of existence of these documents very recently. Moreover,
even if these documents were taken on record, they do
not help the Court in arriving at just conclusion.
63. Moreover, a party cannot produce the
documents before the appellate Court as a matter of right.
Only under certain special circumstances which are
contemplated under Order XLI Rule 27 of CPC, production
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IN RFA No.1397 OF 2015
of additional documents may be permitted. In this case,
no such grounds were made out by the appellant to permit
her to produce this additional evidence at the appellate
stage. As already stated above, these documents do not
help the Court to arrive at any better conclusion.
64. The appellants tried to contend that, in the joint
affidavit, it is mentioned that Mr.M.J.Edwards died
intestate on 02.02.1989 and Exs.D-2 and D-3 were
created subsequent to the said joint affidavit. However, it
is worth to note that, a Will was executed as per Ex.D-23
on 25.04.1977 and it was a registered Will, executed
about 13 years prior to the said affidavit. PW-1 in her
cross-examination pleads ignorance about the said Will
and she contends that, she came to know about the
Will only during pendency of the suit, i.e., during the year
2005. During the cross-examination of the defendant No.1
(DW-1) and his witnesses, the said Will was not seriously
disputed. PW-1 in her cross-examination admitted the
signature of her father on the Ex.D-23. Therefore, in a
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IN RFA No.1397 OF 2015
joint affidavit, if something is mentioned, that cannot be
sufficient to discard or disbelieve the registered document
executed by a testator.
65. The bank statement produced by the defendant
No.1 of deceased Mrs.F.K.Edwards, wife of M.J. Edwards,
reveals that defendant No.1 was sending money or
transferring money to her account and according to the
contention of defendant No.1, (DW-1), his mother repaid
the mortgage amount from the said source. The document
produced by the defendant No.1 supports the said
contention. In view of the said reasons, the IA.No.2/2025
filed by the appellants under Order XLI Rule 27 of CPC
deserves to be rejected. Accordingly, this point is
answered in the negative.
Reg. Point No.6:
66. Defendant No.1 in O.S.No.15395/2006 filed an
application under Section 151 of CPC for modification of
the orders passed by this Court dated 12.07.2017, i.e.,
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IN RFA No.1397 OF 2015
instead of directing the appellants to deposit Rs.25,000/-,
they be directed to deposit Rs.50,000/- per month towards
rent.
67. Considering the facts and circumstances of the
case, the defendants continued in possession of the suit
property without any legal right as their suit was
dismissed. This Court, in the ends of justice and to protect
the interest of the respondent, assessed the notional
damages of Rs.25,000/- per month. There are no material
to enhance the same. In the above paras, this Court
determined the damages at 15,000/- per month. In view
of the said finding, this application does not survive for
consideration. Accordingly the same is rejected. This point
is answered in the negative.
68. Appellants in both the appeals i.e.,
RFA.No.1396/2015 and RFA.No.1397/2015 have failed to
prove that the findings of the trial Court is erroneous,
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IN RFA No.1397 OF 2015
arbitrary and illegal. Therefore, their appeal deserves to be
dismissed.
69. In the Cross-objection filed by plaintiff in
O.S.No.25891/2008, i.e., in RFA.Crob.No.23/2015,
plaintiff was able to prove that defendants have been in
wrongful occupation of the suit property. In the above
paras, damages payable by the defendants for continuing
in wrongful occupation of the suit property is determined
at Rs.15,000/- per month. Hence, they are liable to pay
damages at the rate Rs.15,000/- per month from the date
of suit, till the actual delivery of +possession of the suit
property.
70. The time granted by the trial Court to vacate
and hand over the possession of suit property in favour of
plaintiff in O.S.No.25891/2008 was expired long back.
Therefore, further three months time shall be granted to
defendant Nos.1 and 2 to vacate and hand over the actual
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IN RFA No.1397 OF 2015
and physical possession of the suit premises to the
plaintiff.
71. Accordingly, we proceed to pass the following
order:
ORDER
(i) RFA.No.1396/2015 and
RFA.No.1397/2015 are dismissed with costs and
RFA Crob.No.23/2015 is allowed.
(ii) The judgment and decree dated
29th July 2015, passed by the XXVI Addl.City
Civil and Sessions Judge, Mayohall, Bengaluru
(CCH-20), passed in O.S.No.15395/2006 is
confirmed and the judgment and decree passed
in O.S.No.25891/2008 is modified.
(iii) Defendants in O.S.No.25891/2008 are
directed to vacate and hand over vacant
possession of the suit schedule property to the
plaintiff of the said suit within a period of three
months from the date of this judgment and they
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IN RFA No.1397 OF 2015
shall pay damages at the rate of Rs.15,000/-
per month from the date of suit, till delivery of
the actual and physical possession of the suit
property in favour of the plaintiff. They are
entitled to deduct the amount which is already
deposited/paid as per the orders passed by this
Court.
(iv) If defendant Nos.1 and 2 failed to
deliver the actual and physical possession of the
suit schedule property to the plaintiff, then the
plaintiff is at liberty to proceed in accordance
with law.
(v) IA.No.1/2025 filed under Section 151 of
CPC by the plaintiff in O.S.No.25891/2008 and
IA.No.2/2025 filed under Order XLI Rule 27 read
with Section 151 of CPC, by the defendant
Nos.1 and 2 in the said O.S.No.25891/2008, are
rejected.
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IN RFA No.1397 OF 2015
(vi) Appellants in RFA.No.1396/2015 and
in RFA.No.1397/2015 shall pay the costs to
respondent No.1 in RFA.No.1396/2015 - Mr.Bob
Edwards Maddella.
(vii) Draw decree accordingly.
Registry is directed to send back the trial Court
records along with copy of this judgment to the concerned
trial Court without delay.
Sd/-
(JAYANT BANERJI)
JUDGE
Sd/-
(UMESH M ADIGA)
JUDGE
bk/
