M K VENUGOPAL Vs. AWATHAMA

JUDGEMENT

(1.) RFA 578/2000 is filed by the plaintiff Venugopal and RFA 584/ 2000 is filed by the defendant-Aswathamma challenging the judgment and decree passed in OS No. 7502/1980 on the file of the 14th Addl. City Civil Judge, Bangalore.

(2.) BACKDROP of the case : appellant plaintiff filed a suit stating therein that premises in question originally bearing Municipal No. 186 later renumbered as No. 210, 211, 212 and presently bearing Municipal Nos. 126, 126/1, 127 and 128 situated in 6th Cross Road, Gandhinagar, Bangalore belonged to the joint family of late Sri M. Munivenkatappa. The suit property i. e. , one tenament in the ground floor is the northwest portion of the outhouse. It consisted of one hall, two rooms, a dining hall and a water closet. Defendant's husband Venkataswamappa was related to the plaintiffs family. He was a partner in the business run by Munivenkatappa. The said business was closed. Defendant's husband was employed by the firm M. Munivenkatappa and Co. On account of the relationship and service, plaintiffs grand father had permitted Venkataswamappa to reside in the suit property right from the year 1945. He was living in the said house along with his wife who was the niece of plaintiffs grandfather. After her death, Venkataswamappa married the defendant. Venkataswamappa died in the year 1968. His wife and children were allowed to continue in the suit property. Presently, the step-children having moved out, defendant and her children are residing in the suit property. 2. 1. Suit property and other properties belonged to a joint family of Munivenkatappa. The joint family properties were partitioned in the year 1969. The suit property fell to the share of the plaintiff. As the plaintiff was a minor, his father continued to manage the property till 1978. Plaintiffs father requested the defendant to vacate the premises. She refused to do so. A petition was filed in HRC No. 3420/1975, which was dismissed holding that the Rent Control Act was not applicable. Hence a suit was filed seeking for declaration of title, possession and mesne profits. Defendant filed a written statement denying all the averments made in the plaint filed by the plaintiff Venugopal. It was further stated that even otherwise, the defendant and her sons have perfected their title to the suit property from being in continuous and exclusive possession and enjoyment of the suit house openly adverse to plaintiff and his ancestors for over a statutory period. In conclusion they want the suit to be dismissed. 2. 2. The learned trial Judge has framed as many as nine issues on 1-1-1982. Four witnesses were examined on behalf of the plaintiff and one witness was examined on behalf of the defendant. 80 documents were marked on behalf of the plaintiff and four documents were marked on behalf of the defendant. Learned trial Judge heard the parties and thereafter has chosen to dismiss the suit as bad for non-joinder of necessary parties. This order is challenged by the plaintiff. Defendant, as I mentioned earlier, has filed another RFA 584/2000 and in the said appeal defendant has challenged the findings given by the learned Judge on issues 1 to 3, 5, 7 and 8. Both these appeals have been heard together and a common order is passed. RIVAL CONTENTIONS :

(3.) SRI Naganand, learned Senior Counsel for the appellant-Venugopal took me through the entire pleadings to invite my attention to the material facts to contend that the findings with regard to non-joinder of parties require my consideration. Learned counsel says that all issues have been answered in his favour except the issue to reject his suit. However, the learned counsel says that he has to argue all other issues as well in the light of a cross-appeal. 3. 1. He states that on an earlier occasion an eviction petition was filed by the appellant against the defendant and the same came to be rejected on a technical ground resulting in this suit. He refers to oral and documentary evidence to say that the appellant is the owner of the property and there is acceptable evidence available on record with regard to his pleas. Learned counsel says that the defendant cannot get any title or interest in respect of suit schedule property and no materials are placed before this Court warranting any finding in favour of the defendant. Learned counsel says that as a matter of fact learned trial Judge on an analysis of evidence passed an order in his favour. He supports the finding of the learned trial Judge in so far as possession is concerned. Learned counsel says that no acceptable material is placed with regard to adverse possession. He relies on several judgments to which I would be adverting to at the relevant paras in this order. 3. 2 Per contra, Sri D. S. Sundaresh, learned counsel for the defendant took me through the various material documents and the material evidence to contend that the plaintiffs have to stand on their own case and they cannot depend upon the case of the defendants. According to them, plaintiff has failed to establish the factum of absolute ownership in his favour. He says that the plaintiff has no title at all in terms of the material on record. He also took me through the evidence on record to contend that the defendant has perfected her title by way of adverse possession. The suit is also barred by time. He further says that the necessary parties are not before the Court. Therefore the learned Judge is justified in passing the impugned order.