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Judgment
B. Sreenivase Gowda, J.—This second appeal is by the unsuccessful plaintiff in the suit. Though this appeal is listed for orders, I have heard the learned counsel for the appellant regarding admission.
The case of the plaintiff is that he is the tenant under defendant No. 1 in respect of the suit property bearing No. 264 on a monthly rent of Rs. 500/- per month. He was regularly paying rent to the defendant No. 1 as per the original agreement. He maintained the premises in good condition and he is also paying water and electricity charges regularly. That being so, defendant No. 2 having no right title or interest whatsoever in the premises, on 13.11.2006 all of a sudden came to the spot and tried to demolish the premises without any kind of prior intimation and also tried to dispossess the plaintiff from the suit premises. After enquiry, plaintiff came to know that, defendant No. 2 had purchased the suit premises from defendant No. 1. The plaintiff was ignorant about the sale transaction between the defendant Nos. 1 and 2. The plaintiff under the apprehension of his dispossession from the suit premises by defendant No. 2, was constrained to file the suit for bare injunction and also under the impression that defendant cannot dispossess him without due process of law.
Defendant No. 1 had filed written statement. He admitted the plaintiff was his tenant but disputed the quantum of rent. According to him, the monthly rent was Rs. 300/- He has denied the case of the plaintiff that he was regularly paying the monthly rent. According to him, the plaintiff was a chronic defaulter as such, he requested the plaintiff to vacate and deliver vacant possession of the premises. Accordingly, the plaintiff has vacated the premises in the month of August 2006. He has contended that plaintiff was permitted to store his belongings in a small room situated at upstairs. The plaintiff, after vacating the premises has moved to a premises at Banada Kere area near eight week well and as on the date of the suit, he was residing in that premises. As such, question of dispossession of plaintiff from the suit premises does not arise at all. On these grounds, the first defendant prayed for dismissal of the suit.
Defendant No. 2 filed his written statement contending that he had purchased the suit premises through a registered sale deed dated 7.9.2006 from defendant No. 1 in the name of defendant No. 3 and on the date of the transaction itself possession of the property was taken over by them and ever since they are in peaceful possession and enjoyment of the suit property even as on the date of the suit. Therefore, he has contended that the plaintiff has suppressed this fact and only with a mala fide intention to cause loss to the defendants has filed this suit. With this, he has prayed for dismissal of the suit.
Defendant No. 3 adopted the written statement filed by defendant No. 2.
The Trial Court based on the pleadings of the parties has framed the following issues for its consideration:
Whether plaintiff proves that he is the tenant under the defendant No. 1 in respect of suit property and as such he has been in actual physical possession of the suit property as on the date of filing the present suit?
Whether the plaintiff proves that defendant Nos. 2 with the help of his henchmen dispossessed the plaintiff from the suit schedule property on 15.11.2006 and removed the main door of the suit schedule property and constructed the structure by violating the restraint order passed by this Court?
Whether the plaintiff is entitled for restoration of possession as prayed for in respect of suit schedule property?
What order or decrees?
The plaintiff, in support of his case has examined himself as P.W. 1 and other witnesses as P.Ws. 2 and 3 and got marked 11 documents as Ex. P1 to Ex. P11. Similarly, in support of defence of defendants, defendant No. 1 was examined as D.W. 1, defendant No. 2 was examined as D.W. 2 and other two witnesses were examined on their behalf as D.Ws. 3 and 4 and got marked seven documents as Ex. D1 to D7.
There is no dispute between the parties that first defendant was the original owner of the suit property. The plaintiff became the tenant under the first defendant in respect of the suit premises. It is also not in dispute that first defendant has sold the suit property in favour of defendant No. 3 through a registered sale deed at Ex. D2.
The defendants on the basis of the sale deed Ex. D2 dated 7.9.2006 have contended that the possession of the suit properties was handed over by the first defendant in favour of defendant-3 on the date of execution of sale deed. The evidence of D.W. 3 and 4 who are the attesting witnesses to the sale deed Ex. D2 corroborate their case that possession of the suit property was handed over by defendant No. 1 in favour of defendant No. 3 on the date of execution of sale deed Ex. D2.
The plaintiff in order to show that he was in possession of the suit property as on the date of institution of the suit, has produced Ex. P1 to P6 which are photos and electricity bills. Ex. P6 the electricity bill dated 11.10.2006 shows that it was paid just before filing of the suit. Ex. P7 voter list discloses the name of plaintiff and his son is found at No. 537 and 538. The suit was instituted on 14.11.2006 initially for the relief for permanent injunction restraining the defendants from dispossessing the plaintiff from suit schedule property, later on the plaintiff got the plaint amended on 12.3.2007 seeking the relief of restoration of possession of the suit property alleging that he was: illegally dispossessed by the second defendant during the pendency of the suit.
The Trial Court has held that plaintiff has failed to prove that he was in possession of the suit property as on the date of institution of suit and he was illegally dispossessed by defendant No. 2 during the pendency of the suit. Here it is to be noted that first defendant was the original owner of the suit property who sold the same in favour of defendant No. 3. Therefore, the question of second defendant dispossessing the plaintiff from the suit schedule property illegally does not arise. Therefore, the contention of the plaintiff that he was in possession of the suit property as on the date of suit and during the pendency of the suit he was illegally dispossessed from the suit schedule property by defendant No. 2 cannot be accepted, as rightly held by the Trial Court.
The Trial Court is justified in holding that mere production of electricity bill will not support the case of the plaintiff that he was in possession of the suit schedule property on the ground that anybody can pay electricity bill and create a receipt. The photo produced by the plaintiff at Ex. P4 will not show whether the plaintiff was in possession of the property as on the date of institution of suit or not as rightly held by the Trial Court. If the plaintiff was in possession of the suit schedule property as on the date of institution of suit, he could have produced the latest rent receipt issued by the first defendant having paid the rent as on the date of suit and establish his possession over the suit schedule property as on the institution of the suit. It is not the case of the plaintiff that the first defendant was not issuing receipts for having received rents.
The Trial Court, considering this material aspect of the matter is justified in dismissing the suit filed by the plaintiff for permanent injunction and later for the relief of restoration of the suit property in his favour. The plaintiff aggrieved by the Judgment and Decree of the Trial Court challenged the same in RA No. 44/2011. The lower appellate Court, on re-appreciation of entire oral and documentary evidence on record dismissed the appeal and confirmed the Judgment and Decree of the Trial Court.
I have carefully gone through examined the Judgments of both the Courts below and I do not find any infirmity or illegality warranting my interference. Much less, there is no substantial question of law that arises for my consideration in this appeal. Accordingly, the appeal is dismissed.
No order as to cost.