LATE VEERABHADRAYYA CHANDRASHEKHARAYYA KADADEVARAMATH Vs. SIDDESHWAR KADADEVARMATH

JUDGEMENT

(1.) THIS is the defendants' second appeal against the judgment and decree of the first appellate Court by which it set aside the judgment and decree of the trial Court and decreed the suit of the plaintiff as prayed for.

(2.) FOR the purpose of convenience, the parties are referred to as they are referred to in the original suit. the judgment of this Court in RFA 944/2000, Ex.P-1 and P-2 have to be read along with the said judgment. Ex.P-3 is not the document of title. Under these circumstances, justifiable conclusion which can be arrived at is, plaintiff has not proved his title to the said property by any acceptable evidence on record....Once the plaintiff has not proved his title and when the defendants have established that they are in possession from the time immemorial, at any rate from the date of partition which took place more than 100 years back, which is evidenced by a registered document, it cannot be said that they are in permissive possession on the licence granted to them by Gurubasawa and thereafter by the plaintiff. The plea of permissive possession also is not supported by any legal evidence on record. Unless it is demonstrated that the plaintiff has title to the property, plaintiff is entitled to the possession of the property and defendants are in unauthorised possession of the property, the question of payment of mesne profits would not arise. Therefore the finding recorded by the trial Court that the plaintiff has established the plea of permissive possession and defendants have to pay mesne profits at the rate of Rs.100-00 prior to the suit and subsequent to the suit is unsustainable and accordingly the said finding is hereby set aside.....In so far as ground of limitation is concerned, when the plaintiff has failed to prove his title to the property, his right to recover possession does not exist and therefore the question of limitation goes to background.....In that view of the matter, the judgment and decree of the Lower Appellate Court suffers from legal infirmities and it is liable to be set aside. Appeal is allowed. Advocates : Sri Ashok R. Kalyanshetty, for Appellants; Sri D.H. Pastay, M/s. Pastay Law Associates for C/Respondent. JUDGMENT This is the defendants' second appeal against the judgment and decree of the first appellate Court by which it set aside the judgment and decree of the trial Court and decreed the suit of the plaintiff as prayed for. 2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.

(3.) THE case of the plaintiff is the suit property originally belonged to his adopted father Kadayya Channabasaiah Kadadevaramath. It was under his management. After his death the name of his wife Smt. Gurubasawa was entered in the city survey records. After the death of Smt. Gurubasawa the plaintiff has become the absolute owner of the suit property. The defendants are his near relatives. The defendants were residing in the house premises on the permission granted to them by Smt. Gurubasawa, his mother. The defendants have no manner of right, title or interest over the suit property. After the death of Gurubasawa, the defendants are continuing in possession of the suit property on the permission granted by the plaintiff. The plaintiff was working in Police Department and he was transferred from place to place. During his absence from Hubli the defendants by giving false information to the City Survey Authorities got their name entered in respect of the suit property, which, he came to know recently. On coming to know of such mutation entry the plaintiff has withdrawn permission granted to the defendant and called upon him to deliver possession of the suit property. However, the defendant did not comply with the request and did not deliver possession. Therefore the plaintiff is constrained to file a suit for declaration and seeking possession treating the defendants as in unauthorized occupation of the suit property and also for mesne profits at the rate of Rs.100/- per month and cost of Rs.250/-.