R PRAKASH Vs. G P MARTHAMMA

JUDGEMENT

(1.) THIS appeal is preferred by the defendants who challenge the decree for possession granted in favour of the plaintiff apart from declaration of title.

(2.) THE case of the plaintiff in brief is that the 2nd defendant is the daughter of plaintiff and 1st defendant is the husband of 2nd defendant. The suit schedule property measuring 30'x 43' was purchased by plaintiff from Sharadamma on 18. 6. 79 under a registered sale deed out of her earnings. Plaintiff is a nurse in government Department. She constructed 3. 5 square feet house on the suit site and since then living there along with her son and second daughter namely 2nd defendant. Her son is a handicapped person having suffered burning injuries and so plaintiff got married to him with another handicapped girl by name Ms. Leeza. First defendant is a resident of the same locality where the suit property is situated and he became friendly with the 2nd defendant during the month of october 1988. In that month defendants came to the plaintiff and expressed them to become husband and wife as they married each other. To the knowledge of plaintiff, they were not married under special Marriage Act. Then plaintiff suggested to go through formal marriage for the purpose of record. At that juncture on the request of the 1st defendant plaintiff permitted 4th defendant to stay in the schedule premises. Thereafter, 1st defendant turned out to be a person not amenable to any reason and began to give trouble to plaintiff. As life of plaintiff became miserable, she came and took shelter with a friend in the address given in the cause title temporarily. Thereafter, plaintiff requested defendants to leave the schedule premises. As they did not obey, she got issued legal notice on 24. 10. 89. For that defendant got replied on 2. 11. 89 refusing to comply with the demand of plaintiff to leave the suit schedule premises. It is also recited in the reply that first defendant paid rs. 30,000/- to construct the suit property and also contended that she offered to gift the suit property to 2nd defendant. All those averments are false. Plaintiff is the absolute owner of the suit schedule property and she only permitted defendants to reside and hence both defendants are liable to be ejected. As the defendants refused to give up the suit premises, the plaintiff is entitled for mesne profits at the rate of Rs. 100/- p. m. from the month of November 1989. The cause of action arose on 24. 10. 89 so also on 2. 11. 89. Hence this suit.

(3.) THE defendant denied the averments made in the plaint and also admitted some of the facts as true. Defendants contended as it is true on 18. 6. 79 plaintiff purchased the suit property from sharadamma who is also relative to defendant No. 1. The other averments regarding construction of house and permitting them to live therein are all false. It is defendants who constructed the house is the Schedule property and living there as plaintiff assured that she would give the suit property as dowry for them and also he executed a gift deed in their favour soon after the marriage. Accordingly in the year 1980 defendants married and now they got a son aged 8 years by name Vikram and another son by name goutam aged 6 months. Since 1980 the defendants are living in the suit schedule property. They are not married in the month of december 1988 but they got married in the month of June 1988. Plaintiff is residing in her own house which is given in the causes title of the plaint. The notice issued by the plaintiff is true and defendants replied the same properly. Defendants invested rs. 30,000/- for construction of the suit house with the consent of the plaintiff as she assured to execute gift deed. Plaintiff is not entitled for mesne profits so also accrued due amount of Rs. 2,000/- and future mesne profits. Defendants perfected their title to the suit property by adverse possession as they are in possession of the suit property for more then 12 years. The plaintiff is bound to execute gift deed in favour of defendants. If the plaintiff were to execute the gift deed, this Court may be pleased to do the same on behalf of the plaintiff. Thereby defendants pray to dismiss the suit and pray to direct the plaintiff to execute the gift deed and if she fails to do so court to execute the same on behalf of the plaintiff.