M. MUNIYAPPA Vs. M. KRISHNAPPA

JUDGEMENT

(1.) The unsuccessful plaintiff in O.S. No. 351 of 1991 on the file of the Civil Judge (Junior Division), Chintamani, is before this Court in this second appeal questioning the legality and correctness of the concurrent judgment of the Courts below dismissing the suit filed by him for possession of the suit premises and also for damages. The subject-matter of the suit is a portion of the premises bearing Municipal Khatha No. 1519/6841 measuring East-West 15 ft. and North-South 11 ft. situated in 5th Division, MNT Circle, Mehaboobnagar, Chintamani Town.

(2.) The appellant/plaintiff filed suit seeking a decree against the defendant for vacating the suit premises and also for recovery of damages for the wrongful use and occupation of the premises from the date of the suit till vacating of the premises. He inter alia contended that the house described in the schedule to the plaint is his self-acquired property he having purchased the site out of his personal funds and constructed a building thereon out of his hard earned money, as such, he is the absolute owner of the entire building; that the defendant being his youngest brother requested him to permit him to reside in a portion thereof; that out of natural love and affection the plaintiff permitted the defendant to live in the suit schedule premises and thus, the plaintiff was in permissive possession of the suit schedule premises; that the defendant after living in the said portion for over three years with the permission of the plaintiff, however later developed hostility towards the plaintiff; that the defendant deserted his wife and children without providing food and shelter to them and illegally married another girl and that the plaintiff started protecting three children of the defendant; that in the light of these developments and the hostile attitude of the defendant/the plaintiff feeling not interested to continue the defendant in possession of the premises, withdrew the permission granted and called upon the defendant to vacate the premises and also to pay the damages at the rate of Rs. 100/- p.m., for the wrongful use and occupation. However, the defendant failed to vacate the premises.

(3.) The defendant on his appearance before the Trial Court, filed his written statement denying the case of the plaintiff regarding the property being a self-acquisition of the plaintiff. He denied that the property is the self-acquired property of the plaintiff. He contended that the site was acquired from out of the joint family funds and the building was constructed thereon from out of the joint family funds and therefore, the entire property is one of the joint family properties, as such, he is in possession of the suit schedule premises in his own right as a member of the joint family and therefore, the plaintiff has no right to seek possession of the same. He denied the other allegations made in the plaint regarding deserting his wife and children etc. Therefore, he sought for dismissal of the suit.