- 1 - NC: 2025:KHC:8021-DB RFA No. 2187 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MR JUSTICE K.SOMASHEKAR AND THE HON'BLE MR JUSTICE VENKATESH NAIK T REGULAR FIRST APPEAL NO.2187 OF 2018 BETWEEN: 1. SMT. RATHANAMMA W/O. PATELLAPPA AGED ABOUT 67 YEARS 2. SRI ANJI @ SHEKAR S/O. PATELLAPPA AGED ABOUT 48 YEARS 3. SRI SHIVAKUMAR S/O. PATELLAPPA AGED ABOUT 46 YEARS 4. SRI MANJUNATH S/O. PATELLAPPA AGED ABOUT 43 YEARS 5. SRI PRABHAKAR S/O. PATELLAPPA AGED ABOUT 39 YEARS ALL ARE RESIDING AT NO.187, NEW CITY CORPORATION NO.29, GANESHA TEMPLE ROAD NEAR WATER TANK, 6TH CROSS MANORAYANAPALYA R. T. NAGAR POST BENGALURU - 560 032. …APPELLANTS (BY SRI RAJESH, ADVOCATE FOR SRI G. S. VENKAT SUBBA RAO, ADVOCATE) Digitally signed by MOUNESHWARAPPA NAGARATHNA Location: High Court of Karnataka - 2 - NC: 2025:KHC:8021-DB RFA No. 2187 of 2018 AND: SRI S. CHANDRASHEKAR S/O. SRINIVASAPPA AGED ABOUT 51 YEARS R/AT BEHIND GAYATHRI TRADERS KODIGEHALLI MAIN ROAD SAHAKARANAGAR POST BENGALURU - 560 092. …RESPONDENT (BY SRI B. M. HALASWAMY, ADVOCATE) THIS RFA IS FILED UNDER SECTION 96 OF C.P.C., AGAINST THE JUDGMENT AND DECREE DATED 06.10.2018 PASSED IN O.S.NO.8782 OF 2010 ON THE FILE OF THE III ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT FOR DECLARATION, POSSESSION, DAMAGES AND FOR PERMANENT INJUNCTION. THIS RFA, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR and HON'BLE MR JUSTICE VENKATESH NAIK T ORAL JUDGMENT (PER: HON'BLE MR JUSTICE VENKATESH NAIK T) This appeal is filed by the appellants/ defendants challenging the judgment and decree dated 06.10.2018 passed by the learned III Addl. City Civil & Sessions Judge, Bengaluru City (CCH.No.25)(hereinafter referred to as the 'trial court' for brevity) in O.S.No.8782/2010. - 3 - NC: 2025:KHC:8021-DB RFA No. 2187 of 2018 2. For the purpose of convenience, the parties are referred to as per their ranking before the trial Court. The appellants are 'defendants' and respondent is the 'plaintiff'. 3. The brief facts of the case are that the plaintiff had filed suit in O.S.No.8782/2010 for declaration, possession, damages and for permanent injunction in respect of suit schedule properties. The case of the plaintiff is that Item No.1 of schedule property belonged to one Siddaramanna, he sold it to one Kempaiah @ Appaiah under registered sale deed dated 18.07.1955. On the same day, one Muniswamy Reddy, who was the absolute owner of Item No.2 sold it to said Kempaiah @ Appaiah, hence, said Kempaiah became the absolute owner of both suit items of the schedule property. Later, Kempaiah sold the suit schedule properties to one Gangappa, S/o. Late Gangaiah through registered sale deed dated 17.03.1971 and put him in possession. Said Gangappa enjoyed the schedule property as absolute owner till his death and on his death, his wife Smt. Sharadamma and son Venkataramana sold both suit items to the plaintiff under registered sale deed dated 12.04.2005. When the schedule properties were held by Gangappa, the defendants were tenants under him and they - 4 - NC: 2025:KHC:8021-DB RFA No. 2187 of 2018 were paying rents to him, however, no rent receipts were issued to them. Defendant No.1 is none other the mother of defendant Nos.2 to 5. Once the plaintiff purchased the suit schedule properties, he got changed khata in his name from BBMP, paid development charges and the property taxes. Soon after purchase of the property, he issued intimation of his acquisition to the defendants on 02.05.2006 and called upon the defendants to pay rents to him thereafter, but the defendants did not heed to his request and paid the rents. Thus the plaintiff got issued termination notice to the defendants on 12.10.2006. Inspite of the service of notice, the defendants did not come forward to pay the rents, instead, defendant No.2 sent an untenable reply contending that the suit schedule properties were gifted to defendant No.1 by way of unregistered Gift Deed executed by one Kempaiah @ Appaiah and later through registered partition deed dated 19.05.2006, they have partitioned the schedule properties amongst themselves. On receipt of such reply, the plaintiff filed eviction petition in HRC No.165/2007 under Section 27(2) (f) and (r) of the Karnataka Rent Act, 1999, wherein defendants appeared and disputed the jural relationship of tenant and landlord - 5 - NC: 2025:KHC:8021-DB RFA No. 2187 of 2018 between themselves and said Gangappa. Hence, the learned Chief Judge, Court of Small Causes dismissed the petition as not maintainable. In view of the said finding, the plaintiff had filed original suit in O.S.No.8782/2010 before the III Addl. City Civil & Sessions Judge, Bengaluru City(CCH.25) and sought for declaration, possession and permanent injunction against the defendants. The defendants contested the suit. They filed joint written statement. They admitted that Kempaiah purchased the suit items from Siddaramanna and Muniswamy Reddy under two separate sale deeds. However, they denied that Kempaiah @ Appaiah later sold suit schedule properties to Gangappa. Instead, they contended that, Kempaiah being the father-in-law of defendant No.1 gifted the schedule properties by way of unregistered Gift deed and put her in possession on 01.01.1958. Thus, by virtue of Gift Deed, the defendant No.1 became the absolute owner of suit items and thus she entered into registered partition with defendant Nos.2 to 5 on 19.05.2006. Therefore, the defendants are in possession and enjoyment of the suit schedule properties as joint owners and since portion of the said building was old and dilapidated, by - 6 - NC: 2025:KHC:8021-DB RFA No. 2187 of 2018 demolishing the said old structure, they have constructed new building therein and they have let out different tenements to the tenants and receiving the rents. The defendants have specifically denied that said Kempaiah sold the schedule properties to Gangappa and later, the wife and son of Gangappa sold the schedule properties to plaintiff and thus, the plaintiff became the owner of the properties. The defendants have taken up the contention that there is no cause of action for the suit. Hence, prayed for dismissal of the suit. 4. On these pleadings, the trial court raised among others, the following issues:- 1. Whether the plaintiff proves the title of himself and his vendors over the suit property? 2. Whether the plaintiff proves the relationship of landlord and tenant between the vendor and the defendant about suit property? 3. Whether the plaintiff is entitled to get the vacant possession of the suit properties from the defendants? 4. Whether the plaintiff is entitled to recover the alleged damages/ mesne profits as claimed? 5. Whether the plaintiff is entitled for permanent injunction against the defendant? 6. To what order or decree? - 7 - NC: 2025:KHC:8021-DB RFA No. 2187 of 2018 5. In order to prove the case, the plaintiff was examined as PW.1 and he relied upon in all 39 documents as per Exs-P1 to P39. On behalf of the defendants, defendant No.1 was examined as DW.1 and one M. Krishnakumar @ Krishnappa, was examined as DW.2 and they relied upon in all 54 documents as per Exs-D1 to D54. 6. On the basis of oral and documentary evidence on record, the trial court answered issue Nos.1 and 3 to 5 in the affirmative, struck down issue No.2 and consequently, decreed the suit of the plaintiff by holding the plaintiff as absolute owner of the suit schedule properties and he is entitled to get vacant possession of the suit schedule properties from the defendants and he is also entitled to recover damages/mesne profits as claimed. Thus, he is also entitled for permanent injunction against the defendants. Aggrieved by the judgment and decree passed by the trial court, the defendants have filed the present appeal. 7. Heard learned counsel Sri Rajesh, representing Sri G.S. Venkat Subba Rao, for the appellants/defendants and - 8 - NC: 2025:KHC:8021-DB RFA No. 2187 of 2018 learned counsel Sri. B.M. Halaswamy, appearing for the respondent/plaintiff. 8. Learned counsel Sri Rajesh, representing Sri G.S. Venkat Subba Rao, for the appellants/defendants contended that the judgment and decree passed by the trial court is illegal, opposed to law and the same is not acceptable either on law or on facts. He submitted that the trial court gravely erred in striking off issue No.2, which goes to the root of the matter with regard to establishing the relationship and the trial court has not assigned any reasons for striking such issue. The trial court also failed to note that the plaintiff, who claims to have acquired the title of the suit property without possession has invented the theory of tenancy and has failed to establish the same. The trial court gravely erred in not marking the unregistered deed of Gift in respect of the suit schedule properties and the same ought to have been marked even for collateral purpose to assess the nature of the suit schedule property. Since the plaintiff had failed to prove the jural relationship of the landlord and the tenant, he was not entitled to seek possession of the schedule property, since the defendants are in possession of the suit property since the year - 9 - NC: 2025:KHC:8021-DB RFA No. 2187 of 2018 1958. In view of the discrepancy in the title deed with regard to boundaries, the alleged title in favour of the vendor being doubtful, the trial court could not have decreed the suit. Further, the award of damages in a sum of Rs.10,000/- p.m. is in absence of any evidence. The trial court ought to have held an enquiry as contemplated under Order 20 Rule 12 CPC as contended by the plaintiff and thus grant of damages without any enquiry, is bad in law. 9. Sri. B.M. Halaswamy, learned counsel appearing for the respondent/plaintiff on the other hand supported the judgment and decree of the trial court and argued that, there was no defect whatsoever in the suit as brought out by the appellants/defendants. He maintained, as found by the trial court, the plaintiff is the absolute owner of the suit schedule property and defendants are in possession of the suit schedule property as tenants. Since the plaintiff proved his title to the schedule property and defendants failed to prove their title in respect of the suit schedule property, hence, the trial court based on the title of the plaintiff and his vendors, has rightly declared the plaintiff as owner of the property and therefore, - 10 - NC: 2025:KHC:8021-DB RFA No. 2187 of 2018 the decree passed by the trial court is correct and calls for no interference by this Court. 10. Heard, perused the records and considered the arguments of the parties. 11. In view of the submissions made by learned counsel for the parties, the points that arise for our consideration are:- 1. Whether the plaintiff/respondent proved that he is the absolute owner of the suit schedule properties and defendants are in possession of the suit schedule properties as tenants? 2. Whether defendants prove that they are owners of the suit schedule properties by virtue of unregistered Gift Deed executed by one Kempaiah(father-in-law of defendant No.1) and subsequently, partition was effected among defendants on 19.05.2006? 3. Whether, the appellants/defendants proved that the judgment and decree passed by the trial court calls for interference, as sought for? 4. What order or decree? - 11 - NC: 2025:KHC:8021-DB RFA No. 2187 of 2018 Reg: Point Nos.1 and 2:- 12. As point Nos.1 and 2 are interlinked with each other, we have taken point Nos.1 and 2 for discussion at one stretch. 13. It is the case of the plaintiff that he is the absolute owner of suit schedule properties and on the other hand, defendants have taken the contention that they are in possession of the schedule properties by virtue of unregistered Gift deed executed by one Kempaiah and later they entered into partition and constructed the houses therein and allotted various tenements to the tenants. 14. In support of the case of the plaintiff, plaintiff himself was examined as PW.1 and got marked in all 39 documents as per Exs-P1 to P39. The plaintiff in his chief-examination has reiterated the averments made in the plaint. In support of his oral evidence, he relied upon the original sale deed executed by Kempaiah dated 17.03.1971 in favour of one Gangappa vide Ex-P31. The contents of Ex-P31 would show that for his necessity and for consideration, Kempaiah @ Appaiah sold both items to Gangappa and put him in possession. From the perusal of Ex-P31, it also reveals that the wife of Kempaiah by name - 12 - NC: 2025:KHC:8021-DB RFA No. 2187 of 2018 Smt. Chowdamma, also consented to the said sale deed and marked her signature as witness. Thus, the alienation made by the vendor was also consented by his wife Smt. Chowdamma. Further, in order to prove the title of the plaintiff, he relied upon Ex-P11 the registered sale deed dated 12.04.2005 executed by wife of Gangappa by name Smt. Sharadamma and his son Venkataramana, wherein Smt. Sharadamma and Venkataramana sold the schedule property in favour of the plaintiff. Pursuant to the said sale deed, khata of the suit items was made in the name of plaintiff vide Exs-P1, 2, 15 and 16 and he paid property tax in respect of both items vide Exs-P3 to 5 and Ex-P17. Further, the BBMP also effected khata in the name of the plaintiff vide Ex-P13. It is also necessary to note that before making khata in the name of the plaintiff, the BBMP inspected the suit items, prepared note and sketch vide Ex-P8 and then list of documents for effecting khata as per Ex-P7. The plaintiff has produced receipt evidencing payment of betterment charges of Rs.37,800 vide Ex-P12. The encumbrance certificates vide Exs-P18 to 22 would show the sale of suit schedule properties by Siddaramanna in favour of Kempaiah and from Kempaiah to Gangappa and also from Smt. - 13 - NC: 2025:KHC:8021-DB RFA No. 2187 of 2018 Sharadamma and Venkataramana to S.Chandrashekar-plaintiff. Except this transaction, no other transaction finds place in the encumbrance certificates. Apart from this, the plaintiff got changed power connection in his name vide Ex-P23 and has been paying BESCOM charges as shown in Exs-P24 and 25 and plaintiff issued notice to defendant No.1 on 02.05.2006 vide Ex- P26 intimating the change of ownership and called upon her to pay rent to him. Though it was served upon her, but, defendant No.1 failed to pay the rents to the plaintiff. Thereafter, the plaintiff got issued legal notice on 12.10.2006 vide Ex-P28 of attornment of tenancy to defendant No.1. Though it was served on defendant No.3, vide Ex-P29, but, they failed to deliver vacant possession in favour of the plaintiff. In the cross examination of the plaintiff, the defendants have not elicited anything from his mouth to discredit the oral testimony of PW.1. 15. To rebut the claim of the plaintiffs, defendant No.2 Anji @ Shekar was examined as DW1. In his evidence, he has reiterated the averments made in the written statement. In support of his evidence, one M.Krishnakumar was examined as DW.2, who also corroborated the oral testimony of DW.1. In - 14 - NC: 2025:KHC:8021-DB RFA No. 2187 of 2018 support of his oral evidence, he relied upon copy of the sale deed dated 18.07.1955, wherein, the schedule property was purchased by Kempaiah from one Siddaramanna vide Ex-D1. The defendants also relied upon Ex-D2 registered partition deed dated 05.04.2006 executed among defendants and rectification deed dated 19.05.2006 as per Ex-D3 in respect of schedule property, wherein, they have stated that the schedule properties had fallen to their share by virtue of unregistered gift deed executed by Kempaiah @ Appaiah in favour of defendant No.1 and thus they entered into registered partition deed vide Ex-D2, dated 05.04.2006 and registered Rectification deed vide Ex-D3 dated 19.05.2006. They also produced BESCOM certificates Exs-D4 and D5, letter of defendant No.1 to Revenue Department vide Ex-D6, copy of representation of defendant No.1 vide Ex-D7, study certificate vide Ex-D8, encumbrance certificates vide Exs-D9 to D-14. Bangalore Electricity Supply Company bills Exs-D15 to D48 and BWSSB bills vide Exs-D49 to Ex-D54. In this case, the appellants/defendants mainly relied upon unregistered Gift Deed alleged to have been executed by Kempaiah @ Appaiah in favour of defendant No.1. However, said unregistered Gift Deed - 15 - NC: 2025:KHC:8021-DB RFA No. 2187 of 2018 was not marked in evidence vide order dated 17.07.2017 by the trial court on the ground that it was not registered as required under Section 17 of The Registration Act, 1908 and as required under Section 123 of Transfer of Property Act, 1882 to constitute a valid Gift Deed. The impugned order rejecting marking of unregistered Gift Deed was challenged by defendants in W.P.No.34656/2017 and the same was withdrawn by them. Therefore, the same has attained finality vide order dated 16.11.2017. Therefore, there is cloud on the title of the defendants that they claim their title through unregistered Gift Deed. If the defendants fail to prove title through unregistered Gift Deed, the ownership or title cannot pass on to defendant No.1 and obviously, whatever, the partition entered into between defendant Nos.1 to 5 in respect of the schedule properties do not pass any title and said partition deed or Rectification Deed cannot bear any result or create any cloud on the title of the plaintiff. In the instant case, the plaintiff is able to prove his title to the schedule properties. He has furnished sale deed of one Siddaramanna, who sold to Kempaiah @ Appaiah under registered sale deed dated 18.07.1955. Further, one Muniswamy Reddy also executed - 16 - NC: 2025:KHC:8021-DB RFA No. 2187 of 2018 registered sale deed in favour of Kempaiah @ Appaiah in respect of item no.2, who inturn sold the schedule properties in favour of one Gangappa under registered sale deed dated 17.03.1971. After death of Gangappa, his wife Sharadamma and his son Venkataramana sold the schedule properties under registered sale deed dated 12.04.2005 in favour of the plaintiff. On the contrary, the defendants failed to prove their title to the schedule properties. More importantly, unregistered Gift deed under title or ownership would vest to Kempaiah when he sold the schedule property in favour of one Gangappa under registered sale deed dated 17.03.1971 and put him in possession of the schedule properties. Obviously, the possession of the defendants would be in the nature of the tenants. 16. In civil cases, pleadings are extremely important for ascertaining the title and possession of the property in question. 17. Possession is an incidence of ownership and can be transferred by the owner of an immovable property to another - 17 - NC: 2025:KHC:8021-DB RFA No. 2187 of 2018 such as in a mortgage or lease. A licensee holds possession on behalf of the owner. 18. Possession is important when there are no title documents and other relevant records before the Court, but, once the documents and records of title come before the Court, it is the title which has to be looked at first and due weightage be given to it. Possession cannot be considered in vacuum. 19. There is a presumption that possession of a person, other than the owner, if at all it is to be called possession, is permissive on behalf of the title-holder. Further, possession of the past is one thing, and the right to remain or continue in future is another thing. It is the latter which is usually more in controversy than the former, and it is the latter which has seen much abuse and misuse before the Courts. 20. A suit can be filed by the title holder for recovery of possession or it can be one for ejectment of an ex-lessee or for mandatory injunction requiring a person to remove himself or it can be a suit under Section 6 of the Specific Relief Act to recover possession. - 18 - NC: 2025:KHC:8021-DB RFA No. 2187 of 2018 21. A title suit for possession has two parts - first, adjudication of title, and second, adjudication of possession. 22. If the title dispute is removed and the title is established in one or the other, then, in effect, it becomes a suit for ejectment where the defendant must plead and prove why he must not be ejected. 23. In an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put it differently, wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession. - 19 - NC: 2025:KHC:8021-DB RFA No. 2187 of 2018 24. In order to do justice, it is necessary to direct the parties to give all details of pleadings with particulars. Once the title is prima facie established, it is for the person who is resisting the title holder's claim to possession to plead with sufficient particularity on the basis of his claim to remain in possession and place before the Court all such documents as in the ordinary course of human affairs are expected to be there. Only if the pleadings are sufficient, would an issue be struck and the matter sent to trial, where the onus will be on him to prove the averred facts and documents. 25. The person averring a right to continue in possession shall, as far as possible, give a detailed particularized specific pleading along with documents to support his claim and details of subsequent conduct which establish his possession. 26. It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive. (a) who is or are the owner or owners of the property; (b) title of the property; - 20 - NC: 2025:KHC:8021-DB RFA No. 2187 of 2018 (c) who is in possession of the title documents; (d) identity of the claimant or claimants to possession; (e) the date of entry into possession; (f) how he came into possession - whether he purchased the property or inherited or got the same in gift or by any other method; (g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license fee or lease amount; (h) If taken on rent, license fee or lease - then insist on rent deed, license deed or lease deed; (i) who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants etc.; (j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein; and (k) basis of his claim that not to deliver possession but continue in possession. 27. From perusal of the pleadings and oral and documentary evidence on record, it appears that defendants were the tenants of Gangappa and after the plaintiff purchased the schedule properties, they became his tenants. Since the alleged jural relationship having not been proved before the competent Court of jurisdiction and plaintiff has sought for declaration of his title and for recovery of possession of suit - 21 - NC: 2025:KHC:8021-DB RFA No. 2187 of 2018 items based on that title, the defendants are liable to quit and vacate the schedule properties. 28. So far as mesne profits are concerned, the plaintiff had sought for grant of damages at the rate of Rs.10,000/- per month from the date of suit till the date of possession and he also sought to hold enquiry in respect of future mesne profits under Order 20 Rule 12 CPC. 29. The trial court considering the pleadings of the parties and taking note of admission of DW-1 Anji @ Shekar in the cross examination and the fact that defendants are getting Rs.20,000/- per month as rent by letting out schedule properties which consisted of five houses, thus the prayer of the plaintiff for grant of Rs.10,000/- as damages is not on the higher side. Accordingly, the trial court granted a sum of Rs.10,000/- per month as damages to the plaintiff from the date of suit till possession is restored without holding one more enquiry under Order 20 Rule 12 CPC, which is just and reasonable. Normally, an enquiry is to be conducted under Order 20 Rule 12 CPC to ascertain damages or mesne profits. Whereas, in this case, DW-1 in his cross examination - 22 - NC: 2025:KHC:8021-DB RFA No. 2187 of 2018 categorically admitted the fact that he is getting Rs.20,000/- per month. Hence, the requirement of Order 20 Rule 12 CPC is not at all required. Hence, there is no interference in that regard. 30. So far as grant of relief of permanent injunction is concerned, the plaintiff has sought for relief of permanent injunction restraining the defendants from creating encumbrance over the suit schedule properties. As the plaintiff is declared as absolute owner of the suit schedule properties by virtue of registered sale deed and when the defendants have no subsisting right or title in respect of the schedule properties, thus the order of permanent injunction restraining the defendants from alienating the schedule properties based on registered partition and rectification deed would arise. Therefore, the trial court considering the oral and documentary evidence on record has rightly granted the relief of permanent injunction restraining the defendants from creating encumbrance over the suit properties. Hence, we proceed to pass the following: - 23 - NC: 2025:KHC:8021-DB RFA No. 2187 of 2018 ORDER 1. The appeal is dismissed. 2. The judgment and decree dated 06.10.2018 passed by learned III Addl. City Civil and Sessions Judge, Bengaluru(CCH-25) in O.S.No.8782/2010 is hereby confirmed. 3. The appellants/defendants are hereby directed to quit and deliver vacant possession of the suit schedule properties in favour of the respondent/plaintiff within one month from today. Sd/- (K.SOMASHEKAR) JUDGE Sd/- (VENKATESH NAIK T) JUDGE MN List No.: 1 Sl No.: 2