IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO REGULAR FIRST APPEAL NO.1022 OF 2010 C/W REGULAR FIRST APPEAL NO.691 OF 2010 IN R.F.A.NO.1022/2010 BETWEEN SRI.SUBASH P BHANDARKAR, S/O P.S.BHANDARKAR, AGED ABOUT 63 YEARS, RESIDING AT NO.884/15, 18TH MAIN, 5TH BLOCK, RAJAJINAGAR, BANGALORE – 560 010. ... APPELLANT (BY SRI. MUNIYAPPA, ADV.) AND 1. SRI.PRAKASH P BHANDARKAR, S/O P.S.BHANDARKAR, AGED ABOUT 59 YEARS, 2. SMT.SHOBHA G PAI, W/O DR.M.GOVINDA PAI, AGED ABOUT 58 YEARS, BOTH ARE RESIDING AT GROUND FLOOR, 18TH MAIN, 5TH BLOCK, RAJAJINAGAR, BANGALORE – 560 010. ... RESPONDENTS (BY SRI. UDAYA HOLLA, SR. ADV. A/W SRI. JAGADEESH MUNDARGI, ADV. FOR R1; R2 SERVED) THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 18.02.2010 PASSED IN O.S.NO.4972/2003 ON THE FILE OF THE XIV ADDL. CITY CIVIL JUDGE, BANGALORE (CCH 28), DECREEING THE SUIT FOR POSSESSION AND DAMAGES AND ETC., IN R.F.A.NO.691/2010 BETWEEN 1. SRI.PRAKASH P BHANDARKAR, S/O LATE P.S.BHANDARKAR, AGED ABOUT 59 YEARS, RESIDING AT GROUND FLOOR, NO.884, 18TH MAIN, 5TH BLOCK, RAJAJINAGAR, BANGALORE – 560 010 2. SMT. SHOBHA G PAI, W/O DR.M.GOVIND PAI, AGED ABOUT 58 YEARS, P.B.NO.1331, ROYAL HOSPITAL, SEEB, POST CODE 111, OMAN.
AND ALSO RESIDING AT GROUND FLOOR, NO.884, 18TH MAIN, 5TH BLOCK, RAJAJINAGAR, BANGALORE – 560 010 ... APPELLANTS (BY SRI. UDAYA HOLLA, SR. ADV., A/W SRI. JAGADEESH MUNDARGI, ADV., ) AND SRI.SUBASH P BHANDARKAR, S/O LATE P.S.BHANDARKAR, AGED ABOUT 63 YEARS, RESIDING AT FIRST FLOOR, NO.884, 18TH MAIN, 5TH BLOCK, RAJAJINAGAR, BANGALORE – 560 010. ... RESPONDENT (BY SRI.MUNIYAPPA, ADV.) THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 18.02.2010 PASSED IN O.S.NO.4972/2003 ON THE FILE OF THE XIV ADDL. CITY CIVIL JUDGE, BANGALORE (CCH 28), DECREEING THE SUIT FOR POSSESSION, DAMAGES AND REJECTING THE SUIT FOR PERMANENT INJUNCTION.
THESE RFAs COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Both the appeals are preferred against the judgment and decree dated 18.02.2010 passed by the XIV Additional City Civil Judge, Bengaluru in O.S.No.4972/2003, wherein the suit of the plaintiff was decreed with cost and defendants were directed to deliver the vacant possession of ‘B’ schedule property within a period of four months to the plaintiff and further, defendant No.1 was directed to pay an amount of Rs.1,000/- per month by way of damages from the date of suit till the delivery of vacant possession of ‘B’ schedule property to the plaintiff.
2. R.F.A.No.1022/2010 is preferred by the plaintiff seeking enhancement of damages from Rs.1,000/- to Rs.6,000/- per month and also to direct the respondents to pay a sum of Rs.15,000/- per month from the date of appeal till the date the respondents vacates and handover vacant physical possession of ‘B’ schedule property to the appellant.
R.F.A.No.691/2010 is preferred by defendant Nos.1 and 2 being aggrieved by the judgment and decree passed in favour of the plaintiff for possession and damages.
3. In order to avoid confusion and overlapping, parties are referred to in accordance with their ranks and status in the trial Court.
4. The suit ‘A’ schedule property is a residential premise bearing No.884/15 situated at 18th Main, 5th Block, Rajajinagar, Bengaluru city measuring 55’x45’ consisting of ground floor and first floor. The plaintiff and defendant No.1 are natural brothers. Defendant No.2 is the sister of plaintiff and defendant No.1.
5. The schedule property was originally acquired by the father of the plaintiff by name P.S.Bhandarkar by way of allotment by the City Improvement Trust Board. He was put in possession on 14.6.1961. He constructed a residential house on the said site in the year 1963 out of his own earnings. He said to have permitted the plaintiff and defendant No.1 to live in ground floor. The sale deed in favour of the plaintiff’s father was executed on 16.4.1975. The plaintiff further claims that his father permitted the former to put up construction on the then existed ground floor. The plaintiff was an officer of Canara Bank and constructed the house more fully referred as first floor. Thereafter, he got shifted to the newly constructed first floor. The defendant No.1 continued his possession in the ground floor. The plaintiff claims that the schedule property was gifted to him by his father on 25.4.2001 by way of registered Gift Deed that was duly accepted by the plaintiff. Thus, the plaintiff claims that he is the absolute owner in possession of the said property.
6. The plaintiff permitted defendant No.1 to stay in the ground floor subject to condition that he shall vacate the property within a reasonable time. The plaintiff further states that defendant No.1 has purchased the property bearing No.18, 3rd cross, 7th main, Syndicate Bank colony, Banashankari III Stage, Bengaluru and performed Gruhapravesham of the said house on 5.5.1995 and has leased out the said property on a monthly rental of Rs.5,000/-. Plaintiff issued a legal notice to defendant No.1 to vacate the premises, as he did not vacate the schedule property, plaintiff was compelled to file a suit to get back the possession of the schedule property from defendant No.1.
7. The defendant No.1 entered appearance before the Court. In his written statement he took up a contention that there was no gift of the property by his father in favour of plaintiff nor plaintiff is the exclusive owner of the schedule property nor the defendant is liable to pay rent or damages to the plaintiff. Subsequently, it is seen that defendant No.2 Smt.Shobha G Pai voluntarily got impleaded as defendant No.2 before the trial Court. In her written statement she endorses the view of defendant No.1.
8. Based on the pleadings and relevant materials on record, the learned trial Judge has framed the issues on the ownership of the plaintiff, the nature of possession of defendant, legality of the notice and entitlement of the plaintiff for the reliefs prayed for by him and decreed the suit. The learned trial Judge was accommodated with the oral evidence of P.W.1 Subash P Bhandarkar, P.W.2 Gangadharaiah along with documentary evidence from Exs.P1 to P23. Likewise from the side of defendants D.W.1 Shobha G Pai, D.W.2 Prakash P Bhandarkar/defendant No.1 and D.W.3 Nagesh A Bhandarkar stated to be the cousin brother of plaintiff and defendants were examined.
9. Sri.Muniyappa, learned counsel appearing for the appellant/plaintiff would submit that there was no concept of joint possession in respect of the schedule property. The schedule site was allotted by the then existed City Improvement Trust Board in favour of father of plaintiff and defendants. However, construction was made in the year 1963 by their father. Insofar as construction of first floor is concerned, father of the plaintiff executed Gift Deed of total property before which the first floor was constructed by plaintiff with his separate and exclusive income and the defendants have no contribution towards it. The schedule property in its entirety is stated to have been constructed by the plaintiff exclusively for himself and his family. In substance, the entire schedule property or other landed properties in the native place are concerned there never existed joint family and there was no co- parcenary among the members.
Learned counsel would further submit that though the learned trial Judge has decreed the suit in favour of the plaintiff, has erred seriously in assessing the damages payable and Rs.1,000/- was ordered as against Rs.6,000/- per month. He would submit that defendant No.1 was permitted to stay in the ground floor for a reasonable period, but he stuck to his possession in the property and did not vacate. Regard being had to the fact that he has constructed his own house at Syndicate Bank colony, Banashankari 3rd Stage, Bengaluru. Further he has let out the said property for a monthly rental of Rs.5,000/-. Learned counsel submits that, in the circumstances, matter speak for itself regarding absence of joint family.
10. Sri.Udaya Holla, learned Senior Counsel for Sri.Jagadeesh Mundargi, for respondent No.1 would submit that the suit is not maintainable. The plaintiff has sought prayers contrary to the principles of joint family. There cannot be a question of maintainability of gift within the members of joint family in the facts and circumstances of the case. A single member can neither claim exclusive right over the schedule property nor get the ownership through transaction inter vivos or otherwise, be it a gift, sale or otherwise in respect of the joint family.
11. In the circumstances, the claim and contention of the parties in brief is, separate ownership over the schedule property by the plaintiff versus joint family status over the same property by the defendants.
12. Learned counsel for the defendants would submit that it is not only the defendant No.1 who has acquired other property as stated in the written statement, but even the plaintiff has also acquired four sites and also constructed structures thereon.
13. The admitted facts are, father of plaintiff and defendants 1 and 2, Mr.P.S.Bhandarkar was allotted suit schedule vacant site and thereafter, he constructed the house in the year 1963. It is the evidence and also part of the contextual substance that plaintiff and defendant No.1 were living jointly with their father in the beginning and in the course of time also plaintiff and defendant No.1 continued to live in ground floor and it was subsequent to the construction of the first floor, defendant No.1 was permitted to stay in the ground floor by the plaintiff. Regard being had to the fact that the plaintiff continued to stay in first floor. Insofar as the other properties are concerned, the parties contend that they are subsequent acquisitions. They are at issues.
However, in the domain of the suit they are not relevant for adjudication of the dispute.
14. It was also brought to the notice of the Court by learned counsel appearing for the defendants that a suit for partition is pending on the file of City Civil Court, Bengaluru in O.S.No.6053/2009 filed by defendant No.1 against the plaintiff and the suit schedule property in this case is stated to be item No.1 in the partition suit and three other properties are also the subject matter of the said suit and it is stated to have been set down for arguments by the learned counsel.
15. The present suit is for recovery of possession. However, the exclusive title is denied tooth and nail by the defendant No.1 who claims that both plaintiff and defendant Nos.1 and 2 are having undivided interest in the schedule property. The learned trial Judge also framed an issue regarding declaration of ownership. Regard being had to the fact that the prayer contain recovery of possession, mesne profits and injunction. It is necessary to point out after assertions and denials that the bone of contention remain recovery of possession where the ownership of the plaintiff was denied by the defendants.
16. In the overall circumstances of the case, possession of ground floor of schedule property by defendant No.1 is not disputed only its competency is questioned by the plaintiff according to whom he has exclusive ownership and defendant Nos.1 and 2 deny the claim of the plaintiff and according to them it belongs to joint family. The bone of contention in the circumstances of the case is not a mere denial, but it is substantial denial wherein the plaintiff and the defendants claim that they are at par from all angles in so far as the paternal relationship is concerned between their father on one side and plaintiff on the other.
17. The joint Hindu family under the Hindu Law is not created by an agreement, but by status. It is not mandatory that all the joint family shall invariably possess properties. A person can exercise his right of ownership at his whims and fancies in respect of separate property. However, insofar as joint family property is concerned, disposing of properties of the family is controlled by legal necessity and benefit to the estate. Regard being had to the fact that those factors are not the bone of contentions in this case. The only transfer effected is the registered Gift Deed on 25.4.2001 as per Ex.P2 in favour of plaintiff by his father wherein the ownership of the property was stated to have been transferred voluntarily without consideration by the father of the plaintiff to the latter.
18. Learned counsel appearing for the appellant-plaintiff would also submit that the plaintiff has examined the attestor also. In the facts and circumstances, it is evident that it is not the execution of the gift that has been questioned and the competency to execute the same is denied.
19. Another principal factor which controls the present suit is filing of O.S.No.6053/2009 before the City Civil Court, Bengaluru for partition of the schedule property by metes and bounds, which is stated to have reached the final movements. The original suit for partition is a comprehensive suit when compared to the present suit. The claim and contention of the parties be it a separate possession or ownership, specific share, nature of possession, separate acquisition or undivided interest and the relationship factors are invariably to be adjudicated in the partition suit. However, the present suit is stated to be the earlier one. As a matter of fact, if the matter of pendency of partition suit had gone to the notice of the learned trial Judge it should have been clubbed with this Court. In the over all circumstances of the case, the disposal of the present suit has left the status to a stalemate. In order to put an end to all the complete controversies, the only solution would be a full fledged adjudication of partition suit wherein claims and contentions in the suit also get adjudicated whether directly or indirectly .
20. This is an appeal preferred against the judgment and decree passed in a suit for recovery of possession, permanent injunction and mesne profits. Had the disposal in the suit not happened, this should have been tried in common with the suit for partition. The adjudication of the present suit separately in either of ways invariably amounts to adjudicating the suit for partition as well and lead to multiplicity of proceedings.
21. The learned trial Judge seriously erred in adjudicating the matter pertaining to ownership, nature of possession and the related, in a suit that was premature when compared to suit for partition. Thus, it is liable to be set aside. However, the parties have to wait for declaration of their rights in the original suit No.6053/2009 filed before the City Civil Court, Bengaluru. Hence, I proceed to pass the following:
ORDER (i) R.F.A.No.1022/2010 is dismissed.
(ii) R.F.A.No.691/2010 is allowed.
(iii) The judgment and decree dated 18.02.2010 passed by the XIV Additional City Civil Judge, Bengaluru in O.S.No.4972/2003 is set aside.
(iv) The parties are directed to get their rights and liabilities declared in the suit for partition.
(v) In the light of this judgment, the parties are at liberty to file statement, objections, relevant application, affidavits, documents or examine witnesses which become inevitable for complete and effective disposal.
In view of disposal of the appeals, I.A.No.1/2017 and I.A.No.3/2012 filed in R.F.A.No.691/2010 do not survive for consideration. Accordingly, they are disposed of.
Sd/- JUDGE bkp