RAMACHANDRAMURTHY Vs. SRI VIGNESHA PADIYNR

JUDGEMENT

(1.) THIS is a defendants' second appeal aggrieved by the order of the Civil Judge (Sr. Dvn,). T Narasipura dismissing Use appeal filed by them in RA 125/2001 and confirming the order passed by the Munsiff, T Narasipura in OS 467/1993. The respondent/plaintiff filed OS 467/1993 against the defendants/appellants for declaration that he is the absolute owner of the suit schedule property and to direct the defendants to put him in actual possession of the suit property and to order for enquiry under O 20, R 12, CPC to assess the damages to be paid for use and occupation of the suit property from the date of suit till date of delivery of possession to the plaintiff and for costs.

(2.) SUIT property is a country tiled and asbestos roof house situate at Car Street. Bannur Town, T Narasipura. Taluk, measuring east -west 20 feet and south -north 45 feet with the boundaries mentioned therein of which one late Alur Hanumantha Rao was the absolute owner in possession of the same till his death. The katha stood in his name and he was paying the taxes also. He had also acquired property at Mysore and was living at both the houses i.e., at Mysore and Bannur alternatively. During his lifetime. Alur Hanumantha Rao had permitted the defendants who are close relatives. 10 use a portion of the house property at Bannu along with him, subject to they vacating the same on demand. Alur Hanumantha Rao died on 4.1.1990 and he had executed a Will on 4 1.1985s m respect of his properties. The suit property devolved on his son Anantha Prasad and he became the absolute owner of the property on his father's death. The defendants were asked to only vacate and hand over possession of the suit house which they had occupied in full after the death of Alur Hanumantha Rao under the guise of taking care of the entire property for and on behalf of Anantha Prasad s/o Alur Hanumantha Rao. The defendants who had promised to vacate and deliver possession of the suit house as early as possible, actually went on postponing delivery of possession of the property under one pretext or the other. The said Anantha Prasad absolute owner of the suit property sold the same to the plaintiff for a consideration of Rs. 40,000/ - under a registered sale deed dated 28.3.1993 and asked the plaintiff to take actual possession of the same from the defendants who had promised to vacate and deliver possession. Accordingly, when the plaintiff approached the defendants for taking possession of the house, the defendants once again promised the plaintiff to vacate and deliver vacant possession of the suit house on or before 28.4.1993 to plaintiff. However, the defendants did not deliver the vacant possession of the suit house as promised, In stead, they filed objection to the plaintiff's application for change of katha in his name. The Bannur Municipality, on looking into the documents produced, changed the katha in the name of plaintiff and since then, plaintiff is paying the house tax in respect of the suit house. On 31.7.1993, a legal notice was got issued by the plaintiff asking the defendants to deliver vacant possession of the suit house. However, the defendants sent an untenable reply refusing to delivery vacant possession, also questioning the sale deed in favour of the plaintiff. Hence, the suit for declaration and possession and payment of costs and damages on the ground that the defendants are in permissive possession and their possession over the suit house is unlawful.

(3.) BASED on the pleadings, the trial court raised as many as four issues and after hearing, while answering the relevant issues in favour of the plaintiff, holding that the defendants failed to prove that late S Hanumantha Rao has executed the Will dated 8.6.1989 in favour of the 1st defendant decreed the suit with costs, declaring the 'plaintiff as the absolute owner of the suit property. Aggrieved, the defendants preferred appeal before the Civil Judge (Sr. Dvn.), T Narasipura who has dismissed the same. Against the concurrent finding of both the courts below, the defendants are before this Court in second appeal.