H.G.KASHINATH Vs. H.G.ASHWATHANARAYANA

JUDGEMENT

(1.) Heard the learned counsel for the appellant and also the learned counsel for the respondent.

(2.) This appeal is filed against the judgment and decree of the Trial Court dtd. 7/11/2007 in O.S.No.3163/1990 granting the relief of declaration and possession in favor of the plaintiff.

(3.) The factual matrix of case of the plaintiff/respondent before the Trial Court while seeking the relief of declaration and possession it is contended that the plaintiff himself and defendant are full blood brothers. It is contended that the plaintiff is the owner of the property bearing No.86/132, Surveyor Street, Basavanagudi, Bangalore-4 and out of the said property, a portion of it measuring 25 north-south and 17.5 east to west, morefully described in the schedule to the plaint is under the occupation and use of the defendant. The father of the plaintiff and the defendant one Sri late H.K.Gundu Rao who expired in the year 1956 was the adopted son of one Sri.H.Kashi Rao who was the absolute owner of the above said entire property bearing No.86/132, Surveyor Street, Basavanagudi, Bangalore. He had purchased the said property for valuable consideration from T.Subba Rao Padke in the year 1918. The said Kashi Rao, in respect of the said self acquired property, executed a duly attested will and registered the same on 15/4/1936. He has bequeathed the said property to one of his grandsons i.e., the plaintiff. The wife of the executant of the will Smt.Bhageerathamma and plaintiffs mother Smt.Gowramma were granted life interest in the said property and absolute interest was created in favour of the plaintiff, said Kashi Rao died intestate in the year 1941 when the plaintiff was of 11 years of age. A portion of the suit property was sold by the plaintiff's mother for the purpose of plaintiffs education and maintenance of the family on 22/10/1952 in favour of one Sri.V.Venkatesha Sastry. In the suit schedule property there was a tenant who was evicted around 1974 and as the defendant was in difficult circumstances, he was provided shelter in the said suit schedule property. Thus, the possession of the suit schedule property by the defendant is only permissive in nature, under the title and ownership of the plaintiff. It is further contended that that the revenue records with respect to the entire property was made in the name of the plaintiff. The defendant was paying Rs.30.00 per month to the plaintiff, which was to be treated as damages for the use and occupation of the suit schedule premises. The plaintiff being pressed for additional accommodation, filed an eviction petition bearing No.2653/1983 against the defendant. The said HRC petition came to be dismissed, directing the parties to approach a competent civil court, as the defendant had taken a stand of absence of relationship or landlord and tenant. The plaintiff took the contention that being a legatee, he is the absolute owner of the suit schedule property and that the suit schedule property is required for his bonafide use and occupation, the plaintiff has sought for a judgment and decree for declaration that he is the owner of the suit schedule property and for a decree of possession, directing the defendant to vacate from the premises and also for past mesne profit of Rs.1080.00 and for damages at the rate of Rs.30.00 per month.