PERIERA Vs. H KSIDDALINGAPPA

JUDGEMENT

(1.) The plaintiff's suit for damages by way of loss of rent occasioned to him by the defendants who were in unlawful possession of the plaint schedule property which he had purchased at a Revenue sale was decreed partially by the Second Munsiff, Mysore. On appeal the Additional Subordinate Judge, Mysore, dismissed the suit and the plaintiff has come up in second appeal.

(2.) The suit was originally brought against two defendants who were brothers of one H.K. Sivanna who is now doad. The suit property was sold by the Revenue authorities for recovery of the balance of the House Building Advance which had been borrowed to put up the suit house by the deceased Sivanna who was an employee in the Mysore Government Electrical Department. After purchasing the property the plaintiff applied for delivery of possession but he was prevented from taking possession on account of obstruction caused by the defendants, who had also fied a suit for declaration of their rights and for permanent injunction and had also obtained orders of temporary injunction in the course of those proceedings. Defendant 2 died subsequent to the suit and defendants 2(a) & 2(b) and defendant 1 were brought, on record as his legal representatives. In this appeal, only defendants 2(a) and 2 (b) are represented by Counsel on behalf of a guardian appointed by Court. Defendant 1 though served has not appeared,

(3.) The learned Munsiff found that the defendants did obstruct the plaintiff and prevented him from taking possession of the suit propetry or recovering any rents from "the tenant Srinivasa lyer. He was of the opinion that there was no substance in the contention that as the plaintiff had failed to prove that the defendants were actuated by any malice in filing their suit and obtaining orders of temporary injunction he was not entitled to recover rents by way of damages. He also found that the plaintiff was entitled to such damages by way of rent from 19-5-41 to 3-10-45 at Rs. 15/- per month as against a somewhat larger claim which had been made by the plaintiff. The learned Subordinate Judge was, however, of the view, that the plaintiff had not made out either malice or want of reasonable and probable cause on the part, of the defendants and that he had also failed to make out that the defendants obstructed him in obtaining possession. I think it is quite clear from the evidence in this case, documentary and oral, that the defen dants did obstruct the plaintiff and prevent him from recovering possession. The plaintiff as P. W. 1 had deposed that after obtaining Ex. B, the sale certificate, he applied for possession through Revenue authorities and they directed him to ap- proach the Civil Court. He then filed a petition for delivery of possession in the Court of the First Munsiff, Mysore, and that Court ordered such delivery. The defendants then filed O. S. No. 9-42-43 in the Subordinate Judge's Court, My sore, and applied for and obtained an ad interim order of temporary injunction on 1-8-42 restrain- ing the plaintiff from taking delivery of posses- sion of the property in suit, pending disposal of the application. Later on, on that order being vacated by the learned Munsiff they filed Misc. Appeal No. 25 of 42-43 before the District Judge & secured an order- in their favour by which the ad Interim order was restored. O. S. No. 9/42-43 was later on dismissed after trial and the defendants filed an' appeal against that1 Judgment in R.A. 90/43-44. Along with their appeal they ap plied for and again obtained art order of tem porary injunction from the District Judge which was in force till the appeal was ultimately dis posed of against them, in support of their ap plication for temporary injunction before the Dis trict Judge they filed an affidavit Ex. H wherein it was expressly stated that the properties belong ed to a joint family of themselves and deceased Sivanna and that though the appellants were re siding In the premises of the suit property, if the present plaintiff was not restrained from taking possession of the property, substantial and incalculable injury would result to them and they would be wrongfully deprived of possession of the property by virtue of proceedings which were not binding on them. The learned Munsiff has properly given considerable weight to Ex. H but the learned Subordinate Judge was of the view that even assuming that the facts stated in it were true they were insufficient to hold, in the absence of proof of malice and want of reasonable and probable cause, to entitle the plaintiff to recover damages for use and occupation and that, in spite of the statement in Ex. H, the plaintiff had to make out_ affirmatively that the defendants did obstruct the-plaintiff. I think that this is not at all the proper way in which this matter has to be viewed. The defendants had, on oath, admitted in Ex. H that they were in possession of the property and in the absence of very clear evidence to the contrary they could not ask the Court to treat Ex. H so lightly. The plaintiff has sworn that when he went to teke possession defendant 1 obstructed him, that the other defendant was also present and that the Taluk authorities drew up a mahazar and made a report. Mr. Puttaswamy, learned Counsel who appears for the-defendants, says that the plaintiff should have summened the mahazar. But I fail to see why it was necessary for him to do so in view of their repeated state-ments in the course of the proceedings in O. S. No. 9 of 42-43 and R. A. No. 90/43-44 and Mis. A. No. 25/42-43 that they were in possession.