K.M. MALLAIAH Vs. LAKSHMAMMA

JUDGEMENT

(1.) THIS is an appeal by the plaintiff. The parties are referred to by their rank before the trial court for the sake of convenience. The suit was for declaration of title and recovery of possession. It was the plaintiff's case that he was the owner of property bearing no. 43, Block no. 16, Jarakabande Kaval, Yelehanka Hobli, Bangalore North Taluk, measuring about 30'x40'. The same was purchased under a Sale deed dated 1.6.1990. The plaintiff had paid property taxes in respect of the property to the local authority, from the date of purchase. The plaintiff had also obtained electricity supply to the premises. It was claimed that the defendant sought to interfere with the suit property while contending that the property purchased by the plaintiff was not property bearing no. 43 but was no. 42 and that the plaintiff was illegally laying claim to the suit property. It was further alleged that the defendant had during the pendency of the suit and in spite of an order of injunction restraining the defendant from interfering with the suit property, had taken unlawful possession of the suit property and therefore the plaintiff was constrained to amend the suit that was originally brought only for the reliefs of declaration of title and injunction. The defendant had entered appearance and filed written statement and had denied the claim of the plaintiff. The defendant had on the other hand asserted that the plaintiff had suppressed the fact that the defendant had already instituted a suit in OS 4201/1989, before the very court, against the plaintiff seeking the relief of injunction against the plaintiff and it was with an ulterior motive to get around the said suit that the present suit had been filed. The plaintiff had mischievously adopted the boundaries given by the defendant to the property that was the subject matter of that suit.

(2.) ON the basis of the above pleadings, the court below had taken up both the suits namely, OS 4201/1989 filed by the defendant and the suit filed by the plaintiff in OS 4652/1990 and framed the following issues.

(3.) THE learned counsel for the plaintiff would contend that the trial court has failed to consider that as against the claim of the defendant he had produced the documents of title to the property, where as the defendant had not chosen to tender any evidence, in the absence of any apparent defect in the title deeds, the suit ought to have been decreed. The suit having been dismissed on the ground that the plaintiff had failed to prove his vendors title to the property, thereby negating a registered document of title when there was challenge to it. This is also contrary to the view expressed in the earlier round of appeals before this court. The learned counsel would point out that the only person who sought to deny the claim of the plaintiff, was the defendant. The defendant was claiming that the plaintiff had mischievously described her property as that of the plaintiff. However, the plaintiff had examined PW -2, who was indeed the actual owner of property no. 42, claimed by the defendant and the sale deed pertaining to the said property had also been produced. This circumstance is not at all considered by the court below. The court below had also ignored the evidence of PW -3, who was the grandson of his vendor. He had endorsed that the suit property had been sold by his grand mother to the plaintiff. The learned counsel hence seeks that the judgment of the trial court be set aside and the suit be decreed.