BHAGAWANDAS Vs. ROASENE JEROME DSOUZA

JUDGEMENT

(1.) this is the defendant's second appeal under Section 100 of the Code of Civil Procedure, for short 'c.p.c.', challenging the judgment and decree dated june 23, 1984 delivered by 2nd additional civil judge, belgaum, in regular appeal No. 63 of 1983, dismissing the appeal and confirming the judgment and decree of the trial court dated april 20th, 1982, delivered and given by the principal munsiff, belgaum, decreeing the plaintiff-respondent's claim for possession and mesne profits in regular suit (o.s. No. 291 of 1971 Mrs. Roasene Jerome D'souza v. Bhagawandas).

(2.) the facts of the case in brief are that the plaintiff-respondent filed the above mentioned suit on 7-9-1971, against the defendant-appellant for decree of possession over the suit property as described in para-1 of the plaint and for a decree of mesne profits at the rate of Rs. 35/- per mensem from the date of suit till the delivery of actual possession. The plaintiffs case as per averments made in the plaint has been that the plaintiff-respondent purchased house property measuring 1392 square feet for a sum of Rs. 7,000/- on 27-7-1970, from chandrakumar balaji kamble and venkubai balaji kamble. The property in the plaint has been described in paragraph-2a, as house No. 5 bounded as below: east cantonment public road, west wall of the house No. 5 and beyond that (cantonment) house No. 4, north cantonment road and south cantonment public road

(3.) the plaintiff-respondent claimed title to the property as mentioned just above on the basis of the registered sale deed 27-7-1970 and claimed to have purchased the same for a sum of Rs. 7,000/- from the above mentioned vendors, that is, chandrakumar balaji and venkubai balaji kamble. According to the case of the vendors, the house belonged to them. It is mentioned in the plaint that originally the house in dispute belonged to jainuma, widow of sultansaheb and one mohamad mirza saheb mortgaged the property with possession for a period of 5 years for a sum of Rs. 2,200/- under a possessory mortgage deed dated 30-11-1944, in favour of venkoji balaji kamble and that they sold the same for Rs. 4,000/- to possessory mortgagee under a duly registered sale deed dated 30-4-1959. The said venkoji balaji kamble had mortgaged the whole house for a sum of Rs. 1.000/- in favour of the pioneer co-operative urban bank limited, belgaum under a simple mortgage deed dated 15-4-1963, which came to an end in the month of february 1965. Thereafter, the plaintiff made purchase of the above mentioned house No. 5, situated at mutton butcher street, camp belgaum on 27-7-1970. According to the plaintiffs case, the vendors of the plaintiff transferred their rights, title and interest in house No. 5, including the suit property by registered sale deed without making any alteration in the boundaries. The defendant-appellant had no concern at all with the suit property nor had he got any concern with house No. 5 or any portion thereafter. No doubt, in a part of the property, that is, house No. 5, defendant is in occupation and that part had been indicated by letters abcdef with approximate measurements in the sketch. The defendant was a tenant of plaintiffs vendor venkoji balaji kamble paying Rs. 97- per mensem and that his tenancy was terminated by a notice dated 15-1-1965, issued by counsel on behalf of Sri Venkoji Balaji Kamble, the father of Chandra Kumar Venkoji Kamble, the Plaintiffs Vendor. That after the purchase of the suit house, plaintiff also gave a notice to the defendant to quit the suit premises, but, in reply, the defendant set up an agreement alleged to have been entered into and executed by deceased venkoji balaji kamble. The defendant is denying the title of the plaintiff as well as his vendors, as he has alleged that he has taken a written agreement for sale from plaintiffs vendor. In the circumstances mentioned above, denying the defendant's possession as a tenant and on the basis that he is a trespasser, the plaintiff claiming herself to be the owner, based her suit on a cause of action to the effect that the defendant is in possession of the suit property as a trespasser.