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Judgment
B.V. Nagarathna, J.—1. The defendant in O.S. No. 40/97 has preferred this Second Appeal, assailing judgment and decree passed in R.A. No. 69/2008 by the Senior Civil Judge, Yellapur, sitting at Haliyal, dated 28.07.2014, confirming the judgment and decree of the Civil Judge (Jr. Dn), Dandeli, dated 21.11.2008 passed in O.S. No. 40/1997.
For the sake of convenience, parties shall be referred to, in terms of their status before the trial court.
Respondent-plaintiff filed the suit seeking recovery of possession of the suit house from the defendant. The suit house is situated at D.F.A. Township at Dandeli town, measuring 40 feet x 20 feet bearing Town Municipal Council No. I/948. It is the case of the plaintiff that he purchased the suit house bearing House No. T/605 in the year 1974 and thereafter, the number was changed as I/948. That, since then he was in possession of the suit house. That, in the month of June, 1990, husband of defendant requested the plaintiff to permit him to stay in a portion of the house along with his family. Since both families were friends and considering the pathetic situation of the defendant, plaintiff permitted the defendant to live in the said house till alternative arrangement was made. Accordingly, defendant started residing in the suit house. Defendant''s family was in fact to vacate the house within a period of three or four months after the monsoon receded. When the plaintiff requested the defendant''s husband to vacate the house, he sought permission to live therein for one more year, which the plaintiff permitted. Once again defendant''s husband was requested to vacate the house. But on request again, plaintiff permitted defendant to continue to live for another one year. During this period, defendant''s husband died and defendant requested plaintiff to permit her to stay in the house for another year. Plaintiff granted permission subject to payment of license fee of Rs. 1,200/- per year. Thereafter, once again plaintiff requested defendant to vacate the house by terminating the license by issuing legal notice dated 6.10.1997. But the defendant did not vacate the premises. Hence, suit was filed for eviction of defendant and for recovery of possession.
On receipt of suit summons and court notices, defendant appeared and filed her written statement denying the averments made in the plaint. She contended, that her husband had purchased the suit house bearing No. I/4/28 and I/4/27 from the plaintiff in the year 1984 and accordingly, the suit property was transferred to her husband''s name on 31.03.1984. That, her husband was owner in possession till his death and after his death defendant had become the owner of the suit property. That, she had paid taxes to the City Municipal Council, Dandeli, as owner of the property. But, due to clerical mistake the House No. I/4/28 was not entered in her name but the name of the plaintiff continued. Defendant had applied to enter her name in the revenue records with regard to House No. I/4/28. That, the plaintiff is a stranger to the suit. In fact, the City Municipal Council, Dandeli, had issued Niveshan Hakku Patra on 18.3.1996 in her name. That, House No. I/4/27 and House No. I/4/28 are re-numbered as IA/1038 and IA/1037. Contending that the plaintiff had filed a false suit, defendant sought for dismissal of the suit.
Initially, the suit was decreed by judgment and decree dated 26.11.1999. The same was challenged by the defendant in R.A. No. 57/2006 (Old R.A. No. 32/2001). In the appeal, written statement was amended and para-5(a) was inserted to the effect that plaintiff and husband of defendant had entered into sale transaction on 29.03.1984 relating to property bearing No. I/4/27 and I/4/28 for a sale consideration of Rs. 5,500/-, which was paid to the plaintiff. According to defendant, the deed was executed in favour of defendant''s husband, but the plaintiff had retained original deed stating that the said deed was required to be produced for change in the municipal records in the name of the purchaser. That, House No. I/4/27 was shown in the name of defendant''s husband, but House No. 1/4/28 continued in the name of plaintiff. Thereafter, defendant continued to be in possession of those houses and it was contended that the defendant was protected under Section 53A of the Transfer of Property Act, 1882. The I Appellate Court remanded the matter to the trial court for fresh adjudication.
Before the trial court, following issues and additional issues were raised:
Whether the plaintiff proves that he is the owner of the suit property?
Whether the plaintiff proves the description of suit property is proper and correct?
Whether the plaintiff further proves that he has allowed the deceased husband of defendant and his family to reside in a portion of the suit property on leave and license basis?
Whether the defendant proves that her deceased husband has purchased the suit property from the plaintiff?
Whether the defendant further proves that inspite of purchase of suit property by her husband, neither the name of her husband nor the defendant is entered in the relevant records?
Whether the defendant proves that there is no cause of action to file the suit?
Whether the plaintiff is entitled for the reliefs claimed in the suit?
What decree or order?
ADDITIONAL ISSUES
Whether defendant proves that suit property is purchased under the agreement of sale dated 29.3.1984?
Whether defendant proves that she is protected from eviction in view of the agreement of sale dated 29.3.1984 executed by plaintiff in favour of Mohammed Hanif Mohammed Shaikh U/s. 53(a) of T.P. Act?
In support of his case, plaintiff examined himself as P.W. 1 and examined another witness as P.W. 2, and produced 9 documents which were marked as Ex. P. 1 to Ex. P. 9. The defendant examined herself as D.W. 1. She produced 18 documents which were marked as Ex. D. 1 to D. 18.
On the basis of the said evidence, the trial court answered Issue Nos. 1 to 3 and issue No. 7 in the affirmative and Issue Nos. 4 to 6 in the negative. Additional Issue Nos. 1 and 2 were answered in the negative and accordingly, decreed the suit of the plaintiff with costs.
Being aggrieved by the said judgment and decree of the trial court dated 21.11.2008, defendant preferred R.A. No. 69/2008 before I Appellate Court. The I Appellate Court, after hearing the learned Counsel for the respective parties, framed the following points for its consideration:
Whether the appellant/defendant has made out grounds to allow I.A. No. II filed under Order 41 Rule 27 CPC?
Whether respondent/plaintiff proves his title to the suit house?
Whether respondent/plaintiff proves that appellant/defendant is in the occupation of the suit house since the time of her husband as licensee under him?
Whether appellant/defendant proves alleged sale transaction dated 29.3.1984 relating to suit house between her husband and plaintiff as pleaded in para No. 5(a) of her written statement?
Whether impugned judgment and decree are contrary to law, facts and materials on record?
Are there any grounds to interfere in the impugned judgment and decree of the trial court?
What order?
It answered point Nos. 1 and 4 to 6 in the negative and point Nos. 2 and 3 in the affirmative and dismissed the appeal, as well as the application filed under Order XLI Rule 27 of CPC, granting three months time to deliver vacant possession of the suit property to the plaintiff.
Being aggrieved by the judgment and decree of the I Appellate Court, the defendant has preferred this Second Appeal.
I have heard learned Counsel for the appellant and learned Counsel for the respondent and perused the material on record as well as the original records.
Appellant''s counsel submitted that it is indeed the defendant who is the owner of the suit premises. That, the suit premises was purchased by defendant''s husband in the year 1984. That the sale deed was executed on 29.03.1984. That the plaintiff has lost his right, title and interest in respect of the suit premises. That, the suit filed by the plaintiff seeking eviction of defendant was frivolous, vexatious and false. Both the courts below have not appreciated evidence on record and have wrongly granted relief to the respondent/plaintiff. He submitted that the defendant was in possession of the suit property on the basis of the sale agreement dated 29.03.1984 and that, his possession was lawful and the courts below have not appreciated the case of the plaintiff in its entirety. He submitted, substantial questions of law arise in this appeal, which calls for admission of the matter for a detailed hearing, as the appellant is in possession of the suit property pursuant to agreement to sell dated 29.03.1984.
Per contra, learned Counsel for the respondent supporting the judgment and decree of the trial court contended that the appellant''s husband was permitted to stay in the premises on humanitarian consideration for a short duration till the appellant''s family could make alternative arrangement. But, since repeated requests were made for continuing in the premises for some more time, the respondent-plaintiff obliged the appellant''s husband and their family continued to reside in the suit premises. Even after the death of the appellant''s husband once again on humanitarian consideration the appellant was permitted to reside in the premises for some time. But, the appellant did not vacate the suit premises despite repeated requests made by respondent and further the appellant also failed to pay the amount due to respondent. Therefore, respondent sought possession of the premises. Both the courts below have rightly appreciated the evidence on record and decreed the suit of the respondent-plaintiff. He submitted that no substantial questions of law arise in the appeal and therefore, the appeal may be dismissed.
Having heard the learned Counsel for the parties and on perusal of the material on record, it is noted that the plaintiff has produced Ex. P. 1 to prove that he is owner of the suit premises. Ex. P. 1 has not been challenged by defendant except to the extent of saying that plaintiff had sought to alienate the suit property to defendant. But no document of title has been produced by defendant to show that she has become owner of the suit premises. In that view of the matter, as has been held by the courts below, the title in respect of the suit premises remains with the respondent-plaintiff.
Then, the next question that would arise is as to under what capacity the defendant came to occupy the suit house? The evidence on record would clearly indicate that the plaintiff permitted the defendant and his family to reside in the suit premises for a short duration and thereafter, extended their residence for some more time and subsequently as licencees. By issuance of legal notice, license or permission granted to the defendant was also terminated. Then, what remained was to seek possession of the suit premises from the defendant. In this regard, no tenable legal contention has been raised by defendant as to why possession could not be granted to the plaintiff. The only contention raised is that the defendant had sought to purchase the suit premises. The said contention was raised by amendment of the written statement in the Regular First Appeal that was filed by defendant on the earlier occasion. Ever after the amendment of the written statement and on remand of the matter, there has been no proof to the effect that defendant had purchased the suit premises. In the absence of any agreement between the plaintiff and defendant being registered with regard to the sale of the suit premises, the defendant cannot raise any contention under Section 53A of the Transfer of Property Act, 1882. The plea regarding agreement dated 31.03.1984 said to have been executed by the plaintiff in favour of the defendant is only an afterthought, which plea had not been taken up by the defendant in the earlier round of litigation before the trial court. Therefore, it is established that the defendant was permitted to occupy the suit premises by the plaintiff who now requires possession of the same. In the absence of there being any objection tenable in law to the said relief sought by the plaintiff, both the courts below were right in decreeing the suit of the plaintiff.
In the circumstances, no substantial question of law arises in the appeal. The appeal is dismissed.
At this stage, learned Counsel for the appellant seeks six months'' time for the appellant to vacate and deliver vacant possession of the suit property to the plaintiff. The said submission is objected to by the respondent.
However, having regard to the practical aspects of the matter and taking into consideration that the I Appellate Court had granted three months time and also the fact that the Execution Petition is pending before the Trial Court, three months'' time from today is granted to the appellant-defendant to deliver vacant possession of the suit property to the plaintiff.
Parties to bear their respective costs.