Jayamma and Others vs P. Prakash

Anand Byrareddy, J.

Heard the learned Counsel for the appellant and the learned Counsel for the respondent.

The present appeal is filed by the defendant. It was the case of the plaintiff before the trial court that he was the absolute owner of property bearing No. 60, old No. 49, situated between 7th Main and 8th Mam, K.N. Extension, Yeshwanthapur, Bengaluru, which was more fully described in the suit schedule. Late Chikkavenkataiah, the husband of the first defendant and the first defendant were said to be owners of house No. 68, old No. 47, situated between 7th and 8th main Road, Bengaluru which was about 100 meters away from the suit schedule property. The plaintiff was said to be carrying out certain civil works of the adjacent property and Chikkavenkataiah and the plaintiff were acquainted with each other. Since the house of Chikkavenkataiah was old and was in dilapidated condition, during February 1992, the first defendant and her husband are said to have approached the plaintiff and requested him to demolish the old house and put up new construction. This work of demolition and reconstruction was done as per the requirement of the first defendant and her husband and the construction was to be carried out within thirty days. The cost of demolition and construction was estimated at Rs. 23,000/-. The husband of the first defendant had agreed to pay Rs. 10,000/- initially and to pay Rs. 5,000/- on or before 5.3.1992 and the balance of Rs. 8,000/- on 5.4.1992. The first defendant and her husband were required to vacate the house for the purpose of enabling the plaintiff to demolish and reconstruct. The first defendant and her husband did not have an alternative place of residence and therefore, they had requested the plaintiff to make available to them his house bearing No. 60, as aforesaid, which was the suit schedule property and which was almost adjacent to the first defendant''s house. The plaintiff, therefore, had permitted the first defendant and her husband to occupy the suit property till the house of the first defendant is reconstructed and made habitable. In this regard, they are said to have entered into an agreement dated 6.2.1992 incorporating the above terms and conditions. The husband of the first defendant is said to have paid a sum of Rs. 10,000/- as on the date of entering into an agreement and they had vacated the house and the plaintiff had duly commenced the work of demolition and also started to lay foundation from 9.2.1992. The husband of the first defendant, however, is said to have expired on 17.2.1992 and in view of this untoward incident, the first defendant had called upon the plaintiff to stop the work for a while in view of her husband''s death and the work was stopped. The plaintiff thereafter, was approaching the first defendant and seeking to know as to when he could commence reconstruction. The first defendant is said to have postponed the work indefinitely. However, the plaintiff is said to have intimated the first defendant that he could commence work on 20.4.1992.

The first defendant, who was not in a position to finance further reconstruction, had suggested the plaintiff to utilize the doors, windows, and other material, which were salvaged from the demolished house and the value of that material was arrived at Rs. 5,000/- and it was agreed that the sum of Rs. 5,000/- was to be adjusted towards the construction of the house. After taking this into consideration, the first defendant was still due in a sum of Rs. 8,000/- to the plaintiff and the plaintiff relying upon her promise that she would pay the amount after completion of the work, had completed the work. But, even after such completion of the work, the first defendant did not pay the balance amount and took possession of the constructed house.

The plaintiff, who had retained the key had informed the first defendant that the house was ready for occupation and that the first defendant should vacate the house of the plaintiff and pay him the balance of Rs. 8,000/-. The defendant is said to have failed to do so and also to vacate the house belonging to the plaintiff, which he had been permitted to occupy. During the year 1993, the plaintiff wrote several letters to the first defendant to occupy the newly constructed house. In October 1993, the plaintiff is said to have gone out of Bengaluru city and taking advantage of his absence, the first defendant is said to have broken open the lock of the newly constructed house and took possession of the same. This, the plaintiff had learnt only later and he had lodged a complaint before the Police on 16.10.1993. However, the Police had not taken any further action on the footing that the house in the occupation of the first defendant was her own and hence, it was clearly a civil dispute in respect of which no criminal case could be lodged. It is further alleged by the plaintiff that the first defendant after having occupied the newly constructed house as aforesaid, had allowed defendants 2 and 3, who were the daughter and son-in-law to occupy the plaint schedule property. The plaintiff having approached the Karnataka State Slum Clearance Board as well as the jurisdictional police in respect of the unlawful acts of the first defendant. Thereafter the first defendant is said to have filed a civil suit in OS 4918/2001, wherein the first defendant had admitted the agreement dated 6.2.1992 entered into between the plaintiff, the first defendant and her husband, but however, alleged that the plaintiff had failed to carry out the construction as agreed and therefore, she had to engage a third-party to complete the construction by spending Rs. 70,000/- for completing the construction and that the first defendant was ready to hand over possession of the suit schedule property to the plaintiff if he refunded Rs. 10,000/- and reimburse additional amounts spent by the first defendant, which the plaintiff denied. Therefore, the present suit was filed claiming that the first defendant be directed to quit and deliver vacant possession of the suit property and for payment of Rs. 8,000/-, which was the balance amount due towards construction and for mesne profits at the rate of Rs. 400/- per month for 36 months preceding the suit and for an inquiry into future mesne profits in respect of the occupation of the suit schedule property by the first defendant and through her, defendants 2 and 3.

The first defendant had entered appearance and filed statement of objections to contend that the plaint averments were false and misleading and actual fact was that the plaintiff has failed to reconstruct the property as agreed and having received an advance amount had failed to meet his obligation under the agreement and therefore, the breach of the agreement was committed by the plaintiff and the defendant was constrained to complete the construction of her house by engaging other civil contractors, by spending Rs. 70,000/- and the plaintiff has filed the present suit only as a counter blast to the suit in OS 4918/2001 and hence, was a mischievous ploy to defeat her right for recovery of the amounts spent by her.

The court had clubbed the suits filed by the first defendant and the plaintiff herein and passed a common judgment on the basis of the following issues in the two suits, respectively.

IN OS 314/2002

"1. Whether plaintiff proves that the defendants have no right to retain the suit schedule property illegally?

Whether plaintiff proves that he is absolute owner of the suit schedule property?

Whether the plaintiff proves that the defendants are due Rs. 8,000/- being balance amount towards construction of house over the property bearing Old No. 47 new No. 68?

Whether plaintiff is entitled for mesne profits at the rate of Rs. 400/- per month for 36 months amounting to Rs. 14,500/- and also entitled for future mesne profits?

Whether plaintiff is entitled for the reliefs sought?"

In O.S. 4918/2001

"1. Whether the plaintiff proves his lawful possession over the suit schedule property as on the date of suit?

Whether the plaintiff further proves the alleged interference by the defendant?

What order or decree?"

Insofar as issues in OS 314/2002 are concerned, the trial court has answered issue No. 1 in the affirmative and issue No. 4 partly in the affirmative and issue No. 3 in the negative. Insofar as the issue in OS 4918/2001 is concerned, issue Nos. 1 and 2 were answered in the negative and consequently, partly decreed the suit in OS 314/2002 and directed the defendants to deliver vacant possession to the plaintiff within three months from the date of judgment and the prayer of the plaintiff in OS 314/2002 for payment of Rs. 8,000/- was rejected and the plaintiff in OS 314/2002 was also entitled to Rs. 200/- per month preceding three years from the date of the filing of the suit as damages and directed holding of an inquiry for future mesne profits from the date of the suit till the date of delivery of possession. The suit in OS 4918/2001 was dismissed. It is the dismissal of the suit in OS 4918/2001 and the partially decreeing of the suit in OS 314/2002, which are subject matter of the present appeal.

The learned counsel for the appellants contends that the trial court had failed to note that the plaintiff was not the absolute owner of the suit property and he had not produced any document in support of his title and Exhibit P.18 and Ex. P.19, which were styled as a ''Parichaya Patra'' issued by the Slum Clearance Board and a possession certificate, respectively, which were produced by the plaintiff had come into existence during the pendency of the suit and that the Parichaya Patra at Exhibit P.18 did not relate to the suit schedule property and further that the possession certificate, Exhibit P.19, was not pertaining to the suit property and did not tally with the number of the suit schedule property and that no evidentiary value could be attached to the said documents. Issue No. 2, which was specifically framed as to whether the plaintiff had proved title to the suit property had been unfairly deleted without any finding on the said issue and therefore, it has enabled the plaintiff to set up title to the property without any proper documentation. Though the plaintiff had claimed that he was the absolute owner of the suit property, he had not sought for any declaration of his right over the suit property and therefore the court ought not to have decreed the suit in favour of the plaintiff seeking possession without any semblance of a right as there were no documents of title produced in support of the claim and that the relief of possession can only be a consequential relief, which could not be granted unless the plaintiff had demonstrated his right to the suit property by producing relevant title deeds. The finding of the court below that the defendants were in possession of the suit property as licensees even if accepted, there was no indication of a termination of the license in order that the plaintiff could recover possession. The legal notice by itself could not be construed as termination of the alleged license. It is further contended that the entire burden of proving the case was on the plaintiff Even assuming that the defendants did not appear before the court and contest the suit, it could not follow that the suit could be decreed in favour of the plaintiff The plaintiff was required to discharge the burden of proof. It is in this vein, the judgment of the court below was sought to be questioned.

The learned Counsel for the respondent, on the other hand, seeks to justify the judgment of the court below.

On a perusal of the judgment, pleadings and the material on record, issue No. 1 in these two suits has been considered together namely, whether the plaintiff in the respective suits prove their lawful possession of the suit schedule property.

The court below has noticed that the appellants had not denied the ownership of the suit schedule property and they have admitted this in their written statement and therefore, it was evident that defendant No. 1 was put in possession by the plaintiff as a licensee and the first defendant and her husband were in permissive possession of the suit property. In this regard, there was a clear admission that it was so, namely, that the plaintiff had put them in possession. This is reiterated in the plaint in OS 4918/2001 by the first defendant, who is the plaintiff therein and that it was required of the first defendant and her husband to redeliver possession to the plaintiff after civil works were completed. It is in this fashion that the court below has found that the plaintiff, who was in lawful possession of the suit schedule property but, which had been handed over to defendant No. 1 and her husband, for their temporary residence. The court has further found that if the plaintiff had committed breach of the agreement, whereby he was to demolish and reconstruct the house of the first defendant and her husband, it was for the defendants to have tendered evidence as regards the same. And as there was no evidence brought on record, the court below has held that there was no reason to disbelieve the case of the plaintiff and as it is evident from the material on record and the pleadings of defendants themselves that they are in permissive possession of the suit schedule property, the court below has held that they have no right to retain the suit schedule property and the issue was accordingly answered in the affirmative in OS 314/2002 and in the negative in OS 4918/2001.

Insofar as issue No. 2 in OS 314/2002 is concerned, since the defendant had admitted the previous lawful possession of the plaintiff over the suit property and since the plaintiff had not sought for any declaration of his right over the suit schedule property, that issue has been deleted as not necessary for the determination.

Issue No. 3 in OS 314/2002 has been answered to the effect that the plaintiff has admitted that he has received Rs. 10,000/- and that the value of certain material which remained salvaged from the earlier house of the defendant No. 1 which was demolished has been quantified at Rs. 5,000/- and has been adjusted. Therefore, the balance of Rs. 8,000/- has remained unpaid by the defendant and her husband and hence the suit prayer. But since the suit was filed 10 years after it became due, the issue was answered in the negative and it was held that the plaintiff was not entitled to the recovery of the said unpaid balance amount.

Insofar as the claim towards mesne profits is concerned, the court below has accepted the claim that the mesne profits was demanded at Rs. 200/- per month and the notice was issued on 24.4.1995 and hence it was not justified for the plaintiff to claim Rs. 400/- in the suit and has restricted the mesne profits for a period of three years preceding the suit at Rs. 200/- per month and has left open the determination of the future mesne profits from the date of the suit till the date of delivery of possession.

Insofar as issue Nos. 5 and 6 in OS 314/2002 and issue No. 2 in 4918/2001 is concerned, the court below has found that the plaintiff has proved that the defendants were not entitled to retain possession of the suit schedule property as there was no dispute about the ownership of the property and that the defendants have no right to retain possession of the same and that the plaintiff was entitled to recover possession. It is in this fashion that the court below has on the basis of the admissions by the defendants and having regard to the glaring circumstance that there was a belated claim by the plaintiff, has proceeded to deal with the two suits in the manner as aforesaid and has decreed the suit of the plaintiff in part in OS 314/2002 and dismissed the suit of the defendants.

Given the above findings and the undisputed admitted facts, there is no infirmity to be found in the judgment of the trial court. Consequently, the appeal is dismissed.