ANITHA Vs. M. MAHALINGA

JUDGEMENT

(1.) This is a plaintiff's appeal. Since the original plaintiff - Smt. Anitha is dead during the pendency of the original suit, her legal representatives who are said to be the husband and children of the deceased plaintiff were brought on record. The suit of the plaintiffs in the Court of the learned XI Additional City Civil Judge, Bangalore (C.C.H.No.8) (hereinafter for brevity referred to as "the Trial Court") in O.S.No.3575/2013 was for the relief of permanent injunction, seeking to restrain the defendant or any one claiming through him from interfering in the alleged lawful possession of their immovable property with respect to Site bearing No.303, measuring 30 ft. x 37 ft. and situated at 6th Cross, Shreenagar, Benglauru, more fully described in the schedule of the suit property in the plaint. The said suit came to be dismissed as devoid of merit by the judgment and decree of the Trial Court dtd. 17/4/2017. Challenging the same, the legal representatives of the original plaintiff are before this Court, through this appeal.

(2.) The summary of the case of the plaintiffs in the Trial Court is that, the original plaintiff - Smt. Anitha, who is the wife of the appellant No.1 and mother of appellants No.2 and 3, purchased the suit schedule property from the original allottee of the said property by name Sri.H.R. Gopinath, under a registered Sale Deed dtd. 24/4/2013. The vendor of the property Sri.H.R. Gopinath was allotted the said property by the Bangalore Development Authority (hereinafter for short referred to as "the BDA") under a lease cum sale agreement on Dt. 27/5/1970. Subsequently, a registered Sale Deed also came to be executed in his favour on Dt.16/4/2013. The municipal records including khatha of the property were also made in his favour. In the meantime, the original plaintiff had entered into an agreement for purchase of the said property with the said Sri.H.R. Gopinath on Dt. 4/7/2012 and had paid an advance partial consideration of a sum of '10,00,000/-, as such, after paying the balance consideration of a sum of '15,00,000/-, a registered Sale Deed came to be executed in favour of the original plaintiff on Dt. 24/4/2013. Thereafter the municipal records were transferred and made in the name of the original plaintiff, as such, since then, she (the original plaintiff- Smt. Anitha) has been in lawful possession and enjoyment of the suit schedule property. It is further the contention of the plaintiffs in their plaint that, on Dt. 26/4/2013 and Dt. 28/4/2013, the defendant tried to interfere with the plaintiffs' peaceful possession and enjoyment of the suit schedule property, though having no manner of right, title, much less, possession over the same. Once again, on the date 11/5/2013, again on the date 15/5/2013, the defendant once again approached the property along with his followers and rowdy elements and attempted to disturb the plaintiffs' peaceful possession. This constrained the plaintiffs to institute the present suit against the defendant in the Trial Court.

(3.) As could be seen from the Trial Court records, on issuance of suit summons, the defendant though appeared through his counsel, but did not file his Written Statement. Later, his counsel also filed a retirement memo from appearing for the defendant in the matter, on the ground that there was no instructions to him from his client as to how to proceed further in the matter. The said retirement memo was accepted by the Trial Court. In the meantime, the original plaintiff - Smt. Anitha passed away and the present appellants as the husband and children of the deceased original plaintiff came on record as legal representatives of the original plaintiff -Smt. Anitha.