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Judgment
K.L. Manjunath, J.—The appellants/defendants aggrieved by the judgment and decree passed by the 42nd Addl. City Civil and Sessions Judge, Bangalore in O.S. No. 7273/2005 dated 8.8.2011 have filed this appeal. Heard the counsel for the parties.
The respondent/plaintiff had filed a suit against the appellants/defendants seeking perpetual injunction to restrain the defendants from dispossessing the plaintiff from suit property and to declare that the defendants have neither right to alienate the property nor to interfere with the peaceful possession and enjoyment of the property.
The admitted facts are as hereunder:--
The plaintiff, the son of defendant No. 1, who is the appellant No. 1. Appellant No. 2 is the sister of plaintiff i.e., daughter of appellant No. 1. The suit schedule property is a house bearing No. 508, 8th Block, 1st Cross, Koramangala, Bangalore measuring East to West-12.20 meters and North to South-19.05 meters and is a residential house with two portions.
It is the case of the plaintiff that suit schedule property was earlier owned by Jagatha Seelan. Later it was purchased by T. Bettegowda, father of the plaintiff and defendant No. 2 and husband of defendant No. 1 out of the joint family income and also from the savings from salary, under the registered sale deed dated 1.9.1978. T. Bettegowda and defendant No. 1 have two more sons, who are residing separately and that the plaintiff and defendant No. 1 are living together in the schedule property and late Bettegowda was also residing with them till his death. The plaintiff is an auditor by profession and has an office in the garage of the said premises of the suit property and residing in a portion of the property. According to him, the residential building was put up by Bettegowda out of his retirement benefits, savings from salary and agricultural income.
Contending that defendant No. 1 is trying to alienate the suit property at the instance of defendant No. 2 and attempting to dispossess the plaintiff from the suit property taking advantage of the fact that the property stands in the name of defendant No. 1, though she is only the name lender, the plaintiff filed the suit.
Defendants contested the suit. They denied all the averments made in the plaint except admitting the relationship between the plaintiff and defendants and that the plaintiff is running his office in the garage and living in the portion of the property.
It is the specific case of the defendants that suit property is the property of defendant No. 1 and it was never purchased out of the income of Bettegowda and Bettegowda was working as only a sub staff in State Bank of India and the salary was not even sufficient to maintain the large family. According to her, the father of defendant No. 1 was given in adoption to one Sidde Gowda and his wife Huchamma of Nettekere Village, Gubbi Taluk and her parents had gifted the land to defendant No. 1 and she was getting income therefrom and out of the income from agricultural sources, she purchased the property and hence it is her absolute property. Bettegowda had no right over the property. It is also her case that plaintiff is allowed to stay in the property considering his relationship with the defendant as he is one of the sons of defendant No. 1. According to her, the suit filed by the plaintiff was not at all maintainable.
Based on the pleadings, the Trial Court framed following issues:--
a) Whether the plaintiff proves that he is in lawful possession over the suit property as on the date of the suit?
b) Whether the plaintiff further proves that the obstruction in his peaceful possession and enjoyment of the suit property?
c) Whether the defendants prove that the suit in the present form without the relief of declaration is not maintainable?
d) What decree of order?
To prove their contention, plaintiff on his behalf has examined himself as PW-1 and one Jayashree as PW-2 and got marked 43 exhibits. On behalf of the defendants, defendant No. 1 was examined as DW-1 and they got marked 51 exhibits.
The learned Judge, after hearing the parties and considering the evidence let in by the parties, has held issues 1 and 2 in partly affirmative and issue 3 in the negative and ultimately the suit came to be partly decreed restraining the defendants from interfering with the peaceful and enjoyment of the suit schedule property with southern half portion and garage till the possession is taken in accordance with law. It is this judgment and decree which is called in question in this appeal.
We have heard the learned counsel for the appellant regarding admission.
The main contention of the learned counsel for the appellants is that the Trial Court, having held that the plaintiff is not having title to the suit property and when it is the absolute property of defendant No. 1, it was not justified in granting decree of injunction against lawful owner of the property. Therefore, he request the court to allow the appeal and set aside the judgment and decree of the Trial Court.
Having heard the learned counsel for the appellant, the only point that has to be considered is:
Whether the limited injunction granted by the Trial Court in favour of the plaintiff restraining the defendants from dispossessing the plaintiff except in accordance with law is just and proper?
Admittedly, it is contended that the suit property was purchased by this father Bettegowda out of his income and appellant No. 1 is only a name lender. Though, he contends that Bettegowda is the owner, he has not filed a suit for partition. Accordingly, Bettegowda died in the year 1996 and the suit came to be instituted in the year 2005. Even, if the contention of the plaintiff is accepted that Bettegowda was the owner of the property, he would not have filed a suit for bare injunction; rather he would have filed a suit for partition claiming his share considering him as one of the legal representatives of Bettegowda. The Trial Court, considering the evidence has clearly held that the plaintiff has no right, title and interest over the property and Bettegowda is not the owner of the property. Therefore, the finding of the Trial Court cannot be found fault with. The only contention to be considered is whether the plaintiff who is in permissive possession as the son of the appellant No. 1 has to be protected by way of an injunction or not or he can till he is dispossessed in accordance with law. Though, the appellant No. 1 is the absolute owner of the property, she admits that her son plaintiff is in possession of the southern portion of the property and garage where he is carrying on his profession as Chartered Accountant. Even if he is in permissive possession, he cannot be dispossessed as he is to be evicted only under due process of law. The Trial Court has given similar finding that the appellant cannot dispossess the plaintiff without having recourse to due process of law. In the light of the finding, this Court has no valid reason to interfere with the order passed by the Trial Court which is based of proper appreciation of evidence and based on sound principles of law. Accordingly, we answer the points against the appellants.
ORDER
The appeal is dismissed.
The judgment and decree passed by the Trial Court in 08.08.2011 passed in O.S. 7273/2005 on the file of the 42nd-Addl. City Civil and sessions Judge, Bangalore is confirmed.
Dismissal of the appeal, shall not debar the appellants to take the property in accordance with law.
Parties to bear their own costs.