COMMISSIONER OF INCOME TAX - (EXEMPTIONS) vs. M/S ST. MARTHA'S HOSPITAL

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V. SRISHANANDA CIVIL REVISION PETITION No.292/2016

BETWEEN

R GURUDEVA AGED ABOUT 59 YEARS S/O LATE RUDRAPPA G R/A NO.620, 3RD CROSS 16TH B MAIN, 3RD BLOCK KORMANGALA BANGALORE-560 034 ...PETITIONER (BY SRI C S PRASANNA KUMAR, ADVOCATE)

AND 1 . R NIRANJAN AGED ABOUT 53 YEARS S/O LATE RUDRAPPA R/A “BHAVATHARINI” SPENCER ROAD CROSS (OPP.LIC MAIN OFFICE) KOTE CHIKKAMAGALURU-577 101 2 . B C SHIVAPANCHAKSHARI S/O LATE B CHANNABASAVAIAH AGED ABOUT 62 YEARS R/A RUDRESHWARA NILAYA BEHIND NARASINGA RAO ROAD BASAVANAHALLI CHIKKAMAGALURU-577101

2 3 . RAMACHANDRA A R S/O A B RAMAPPA AGED ABOUT 40 YEARS R/A MALLENAHALLI POST TARIKERE ROAD CHIKKAMAGALURU-577131 4 . SHEKARA T S/O TUKRA AGED ABOUT 29 YEARS R/A MALLENAHALLI POST CHIKKAMAGALURU-577131 5 . DEJAPPA AGED ABOUT 34 YEARS S/O NARAYANA 6 . RENUKA AGED ABOUT 33 YEARS W/O DEJAPPA

7 . SHANKARA S/O NARAYANA AGED ABOUT 35 YEARS

8 . SUNITHA AGED ABOUT 25 YEARS W/O SHANKARA

RESPONDENT Nos.5 TO 8 ARE RESIDING AT “DOOPADACOOL D” ESTATE MALLENAHALLI POST CHIKKAMAGALURU-577131 …RESPONDENTS (BY SMT.MAYA MENON FOR SRI R.S.SUBRAHMANYA KAUSHIK, ADVOCATE FOR R1;

3 VIDE ORDER DATED 08.09.2016, NOTICE TO R2 TO R8 IS DISPENSED WITH)

THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 10.06.2016 PASSED IN O.S.NO.112/2013 ON THE FILE OF THE 1ST ADDL. SENIOR CIVIL JUDGE, CHIKKAMAGALURU, DECREEING THE SUIT FOR POSSESSION.

THIS PETITION HAVING BEEN RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:-

CORAM: HON'BLE MR JUSTICE V SRISHANANDA CAV ORDER (PER: HON'BLE MR JUSTICE V SRISHANANDA)

First defendant in O.S.No.112/2013 on the file of the I Addl. Senior Civil Judge, Chikkamagaluru, is the revision petitioner challenging the judgment dated 10.06.2016 decreeing the suit of the plaintiff. 2. Facts of the case which are utmost necessary for disposal of the present Civil Revision Petition are as under: Plaintiff and first defendant being the brothers, along with their mother succeeded to the property of late

4 Rudrappa which includes coffee estate called ‘Doopadacool D Estate’ (‘Estate’ for short) situated at Nagenahalli village, measuring 167 acres as per the records. Said property includes several structures including a bungalow morefully described in the schedule to the plaint which is culled out hereunder and hereinafter referred to as ‘suit property’. “All the piece and parcel of the bungalow comprising Varanda Hall, Bed rooms, kitchen, bathroom, toilet, withal amenities like TV, Refrigerator, sofa, chairs, cots etc., forming part of Doopad Cool ‘D’ Estate comprising in Sy.No.35/p situated at Nagenahalli village, Jagara Hobli, Bindiga Grama Panchayath, Chikkamagaluru Taluk and District, morefully shown in the annexed photographs, measurements and boundaries for the bungalow are as under: Measurement of the bungalow: East to West : 45 feet North to South:40 feet Boundaries for the bungalow: East : Road to Estate, West : H.D.Chandramouli’s House, North : Backyard of bungalow and road, South : Drying yard.

6 7. The plaintiff, his mother, wife and children have been in possession and enjoyment the suit property since 1978 and thereafter, plaintiff shifted his family to a rented house in Chikkamagaluru town in the year 1996 for the purpose of education of his first daughter and later shifted to a new house in the year 2005 and since then he is residing there. 8. Plaintiff also obtained Tata Sky connection to the suit property in the year 2007 and also got telephone connection about 15 years ago. Plaintiff used to lock the premises and also the gate situated on the south eastern corner and used to open the bungalow whenever he came to stay in the bungalow and used the other structures adjoining the said bungalow. 9. It is further averment in the plaint that on Wednesday 20th March 2013, plaintiff left the Estate at 3.30 pm and reached his house situated at Spencer Road, Chikkamagaluru. Defendant Nos.3 and 4 entered the bungalow compound around 4.55 pm through drying yard No.1 and tried to break open the door lock put on the main

7 road of the bungalow that can be seen in CCTV camera. Defendant Nos.3 and 4 succeeded to cut open the lock at 5.05 pm and entered inside the gate. Thereafter, opened the second lock inside the veranda at 5.07 pm. Later, fifth defendant also joined defendant No.3 in the act and they all started to break open the lock of the gate situated on the south eastern side. Finally they succeeded to break open the lock of the gate at 5.10 pm. At that time, defendant Nos.1 and 2 were in the office situated in drying yard No.1. 10. The plaintiff received the information from H.P.Lokesh who is his driver staying in the quarters situated on the south eastern drying yard No.2. 11. The incident was reported to the police station, Chikkamagaluru over phone and also to the Circle Inspector of Rural Circle, Chikkamagaluru. 12. The police in turn informed the complainant/plaintiff not to create any ugly scene in the property and to return.

8 The plaintiff apprehended that police might have received the information from first defendant and therefore they told the plaintiff not resist the illegal act of trespassing. 13. Thereafter, plaintiff visited the bungalow wherein he found that the lock put to the approach gate was removed and new lock was put to the gate situated on the south western side. When plaintiff went near the gate, defendant No.7 informed him that the locks were removed by the first defendant. Meanwhile, defendant Nos.1 and 2 were in the office in drying yard No.1 and did not come out. Therefore, plaintiff did not cross the gate to reach the bungalow inside. 14. Thereafter, plaintiff went to the police station at 8.15 pm and met the Sub Inspector of Police and again visited the police station at 9.00 pm to lodge the official complaint. 15. By then, senior police officials had already left for the day. Other police personnel refused to receive the

9 complaint and therefore, complaint was sent by registered post on the next day. The plaintiff had kept an iron almirah in the bungalow and keys of the said almirah are with him. Therefore, plaintiff sought for possession of the suit property based on plaint claim. 16. Plaintiff also claims that first defendant is resident of Bengaluru.

Second defendant is resident of Chikkamagaluru, a stranger to the family and is an outsider. Plaintiff claimed that he has been dispossessed from the suit property without due process of law and therefore, he is entitled to recovery of possession of the suit property. 17. Pursuant to suit summons, it is the second defendant who appeared and filed written statement claiming that he is the power of attorney holder of first defendant and as such, written statement is on behalf of first defendant as well.

10 18. In the written statement, relationship between plaintiff and first defendant is admitted. But contended that estate belonged to G.Rudrappa. He has specifically stated that he is working as Manager to the Estate, but denied other allegations made in the plaint. He specifically stated that he is residing in the house viz., ‘Bhavatharini’ at Spencer Road, Chikkamagaluru. 19. He further contended that plaintiff was never in possession of the suit property and contentions urged in the plaint are incorrect and there is suppression of material facts. He further contended that, merely on the ground that telephone connection is in the name of the plaintiff, that would not make out a case that plaintiff was residing in the suit property. 20. He further contended that a suit was filed in O.S. No.113/2010 by the plaintiff through his mother- Susheelamma for partition. Having failed to pursue the said suit, plaintiff suffered an order of dismissal of

11 I.A.Nos.3 to 5 and took hostile attitude and filed a false complaint. 21. He also contended that first defendant has also filed a complaint before the police on 20.06.2013 which has been registered in N.C.No.170/2013 and there is no truth in the allegations made in the complaint filed by the plaintiff. 22. He also brought to the notice of the Court that another suit is filed by the plaintiff against the defendants in O.S.No.144/2013 which is also pending and thus, sought for dismissal of the suit. 23. Based on the rival contentions of the parties, the learned Trial Judge raised the following issues: “(i) Whether the plaintiff proves his actual, physical and exclusive possession and enjoyment of the suit schedule properties? (ii) Whether the plaintiff proves that he has been illegally dispossessed by the defendants on 20.03.2013?

12 (iii) Whether the suit is filed within the period of limitation? (iv) Whether the plaintiff is entitled for the relief claimed in the suit? (v) What order or decree?” 24. In order to prove the case of the plaintiff, plaintiff got himself examined as P.W.1 and one witness on his behalf viz., H.B.Lokesh was examined as P.W.2. On behalf of the plaintiff, as many as 97 documentary evidence were placed on record which were exhibited and marked as Exs.P.1 to P.97 comprising of telephone bills, receipts, BSNL Bills, receipts, Electricity bills, receipts, letter, copy of the complaint, acknowledgment, compact disc, affidavit, complaint, copy of the statement, partial partition, accounts ledger and cash book. 25. As against the evidence placed on record by the plaintiff, first defendant-Gurudeva was examined as D.W.1 and second defendant-Shivapanchakshari was examined as D.W.2. On their behalf, two documents were placed on record i.e, sketch marked as Exs.D.1 and D.2.

13 26. On conclusion of the recording of evidence, learned Trial Judge heard the arguments of the parties and by the impugned judgment, decreed the suit of the plaintiff. 27. Being aggrieved by the same, defendant No.1 is before this court in this Civil Revision Petition on the following grounds:  “The learned judge failed to exercise its jurisdiction in holding that the suit is in time on the face of Exhibit. P.92 which is a complaint lodged by the petitioner apprehending the respondent might trespass upon his property after the trial court refused to grant interim order in O.S.No. 113/2010.  The learned judge failed to note that Exhibit.P.92 was lodged before the police on 26.2.2013 when the petitioner apprehended that the respondent might take law into his own hands which evidently demonstrates that the respondent no.1 was not in possession of the property even as on 26.2.2013. As such the suit filed on 16.9.2013 was beyond the period of limitation.  The trial court failed to exercise its jurisdiction in entertaining the suit when the suit schedule was

14 inclusive of movables like TV,Sofa, refrigerator, chairs etc.  The learned judge failed to note that a suit for possession of movables is not contemplated under Section 6 of the Specific Relief Act, 1963. As such he ought to have dismissed the suit at the inception itself.  The learned judge grossly erred in noting that the suit as brought out is not maintainable in per se as the case of the respondent that he, his wife, children and mother are in joint possession of the property. Suit by him alone was not maintainable.  The learned judge having gone through the registered partition deed namely Exhibit P.94 and having appreciated the recital, the said recital sufficiently discloses that there was a severance of joint family status, erred in coming to the conclusion that the respondent was in possession of the property.  The learned judge erred in giving a wrong interpretation to the recital of the partition deed "the residential house, pulper and the drying yard have fallen to the share of Sri.R.Gurudev and party no.2, it is agreed that 1st party shall have the right of residence in the residential house and also make use of the pulper and the drying yard.

15 However the parties 3 to 6 and the child begotten to be born to party no.5 shall have the right to reside in the residential house and make use of the drying yard and pulper till they make separate arrangement with a reasonable period" at para 13 of the judgment and comes to the conclusion that there is no material suitable arrangements have been made for the separate residence, as such the respondent was in possession of the property.  The learned judge lost sight of the fact that the said recital says that the parties are expected to make separate arrangements within a reasonable time, construing 25 years is not a reasonable time is a misnomer.  The learned judge lost sight of another important fact that the respondent in the plaint himself admits that he has constructed a new house in Spencer road, Chikkamagalur in 2005 and is presently residing there.  The learned judge erred in giving a finding that there is no material on record to show that the partition deed of 1996 is acted upon till date while a suit for partition in O.S.NO.113/2010 is still pending on his file.  The learned judge grossly erred in noting that the suit as brought out is not maintainable in per se as

16 the case of the respondent no.1 that he, his wife, children and mother are in joint possession of the property. Suit by him alone was not maintainable.  The learned judge failed to note that the petitioner is not in possession of the property just because he has shifted to Bangalore in the year 1996.  The learned judge erred in giving a finding that the petitioner is not managing the properties allotted to him. As such he is and was not in actual, physical possession of the suit bungalow.” 28. Sri C.S.Prasanna Kumar, learned counsel for the revision petitioner contended that a suit under Section 6 of the Specific Relief Act is permissible only in respect of the immovable properties. The plaint contains movable properties as well. Therefore, there is no proper application of mind by the Trial Court while decreeing the suit. 29. He further contended that the plaintiff has no right to seek for partition of the property, inasmuch as he was never in possession of the suit property.

17 30. He further contended that the learned Trial Judge has wrongly noted that defendants did not produce the partition deed but the plaintiff has produced the partition deed vide Ex.P.94 and recital in the said deed sufficiently discloses that there is severance of joint family status, whereas, Ex.P.94 would make it clear that it is a partial partition. 31. He further pointed out that plaintiff has specifically admitted in the cross-examination that in the year 1996 there was a partition between the plaintiff and first defendant. In the said partition, there is a sketch annexed to it whereunder, there is a clear demarcation of properties. The said sketch is marked as Ex.D.1. 32. Sri Prasanna Kumar would also contend that the learned Trial Judge has not properly appreciated the scope of Section 6 of the Specific Relief Act whereunder, plaintiff is bound to make out a case that he was in possession and he has been dispossessed without due process of law within six months from the date of the suit.

18 33. Sri Prasanna Kumar, learned counsel would also contend that the learned Trial Judge failed to appreciate the contents of Ex.P.94 and wrongly interpreted the same which has resulted in miscarriage of Justice. He contended that in Ex.P.94 it has been specifically mentioned as under: “the residential house, pulper and the drying yard have fallen to the share of Sri R.Gurudev and party no.2, it is agreed that 1st party shall have the right of residence in the residential house and also make use of the pulper and the drying yard. However, the parties 3 to 6 and the child begotten to be born to party no.5 shall have the right to reside in the residential house and make use of the drying yard and pulper till they make separate arrangement with a reasonable period.” 34. Per contra, Smt.Maya Menon, learned counsel for the respondent No.1/plaintiff supports the impugned Judgment. 35. She contended that the material documents placed on record would make it clear that defendants and their

19 henchmen broke open the lock to the main gate and dispossessed the plaintiff. The CCTV footage placed on record along with police complaint would make it clear that the defendants have trespassed into the suit property, broke open the lock and put their lock on to the gate. Police did not take any action despite repeated complaints and therefore, plaintiff is able to establish that he was in possession of the property. 36. She would also contend that the almirah kept in the bungalow and the keys of the said almirah are still with the plaintiff. Therefore, plaintiff was in custody of the almirah and keys. 37. Plaintiff was in possession of the suit property and by high handed activities of the defendants and their henchmen, lost possession of the suit property which has been rightly appreciated by the learned Trial Judge while decreeing the suit of the plaintiff and thus sought for dismissal of the revision petition.

20 38. Having heard both the parties, this Court perused the material on record meticulously. 39. On such perusal of the material on record, the following points would arise for consideration: (i) Whether the plaintiff has successfully established that he was in possession of the suit property and he has been illegally dispossessed on 20.03.2013 by the defendants and their henchmen? (ii) Whether the defendants would establish that plaintiff was not in possession of the suit property and as such, decreeing of the suit is incorrect? (iii) Whether the impugned judgment is suffering from legal infirmity or perversity? (iv) What Order? 40. In the case on hand, in order to appreciate the rival contentions of the parties, it is just and necessary for this Court to consider the material evidence placed on record by the parties. 41. In order to prove the case of the plaintiff, plaintiff got examined himself as P.W.1 by filing an affidavit in lieu

21 of his examination-in-chief, wherein, he has reiterated the averments made in the plaint and also marked the documents as aforesaid in support of his case as Exs.P.1 to P.97. 42. In his cross-examination, P.W.1 has answered that about ten CCTV cameras are installed outside the house. The images of the motion pictures recorded in the said cameras would be viewed in the television installed in his house as well as in the office. 43. He pleaded ignorance that in Ex.P.90/compact disc only nine video clippings are recorded. He has answered that whatever that has been recorded in the CCTV has been downloaded to the compact disc and placed before the Court. He admits that there is no impediment for him to place on record all the recordings in the CCTV and such recordings would not be available after a period of one month.

22 44. He also admits that if the recordings are stored in the camera memory, said recordings can be down loaded at any given point of time and it can be recorded in a compact disc. He denied that the clippings found in Ex.P.90 are recorded on 05.02.2014. He denied that the CCTV footage has been edited to suit the plaint averments. He also denied that there is no nexus between Ex.P.91/ affidavit and the suit claim. 45. P.W.1 further denied that while editing the video clippings whatever the date that is intended can be inserted in the clippings. He admits that he is not possessing technical expertization insofar as downloading the CCTV clippings to compact disc. 46. He denied that he has kept a separate television for viewing the CCTV footage in his house. He has specifically answered that there was a partition in the year 1996 between himself and first defendant. He admitted the sketch annexed to the said partition deed, but he has explained that the said sketch is incorrect.

23 47. He admits the signature of himself, first defendant his nephews viz., Hruthvik, Sukruth and his children Sudeshna, Supriya and his mother Susheelamma on Ex.D.1 which was prepared in the year 2009. 48. He also admits that the sketch placed as per Ex.D.2 wherein signature is admitted by him. He admits that as per Ex.D.2, first defendant is having possession over the property which he is entitled to. 49. In his further cross-examination, P.W.1 admits that the house situated in the suit property is worth about Rs.5,50,000/- and the movables are worth about Rs.2,00,000/- as on the date of filing of the suit. 50. He admits that in Ex.P.90 video clipping, defendant Nos.1 and 2 are not visible. He denied the suggestion that breaking open of the lock is not at the instance of defendant Nos.1 and 2. But, he maintained that it is defendant Nos.1 and 2 who are responsible for defendant Nos.3 to 5 to break open the lock of the suit property.

24 51. He also answered that on 20.03.2013 at about 6.45 pm, when he went near suit property, seventh defendant told that it is the first defendant who got the lock broke open. 52. Sri H.B.Lokesh who is working as driver in Estate Chikkamagaluru, is examined as P.W.2. He filed an affidavit in lieu of his examination-in-chief, wherein, he contended that he is working as driver and is acquainted with plaintiff and defendants. 53. He deposed that he is acquainted with the suit property and the bungalow situated therein. He has stated that plaintiff was using the suit bungalow and used to have lunch, coffee and also take rest in the afternoon, change the dress, write accounts. He has stated that plaintiff had kept books, ledgers and other papers in the bungalow. 54. He has specifically stated that after finishing the work, plaintiff used to lock the door and keep the keys with him. He has specifically stated that there is a staff

25 quarters near the bungalow and he is staying in one of the portion with his family members. 55. He has further stated that on 20.03.2013, plaintiff came to the Estate and locked the bungalow as usual around 3.30 pm. He further stated that when he was in the Estate, defendant Nos.1 and 2 came to the Estate and they were in the office. At about 5.00 pm, defendant Nos.3 and 4 broke open the main door of the bungalow by force and later fifth defendant joined them and all of them broke open the lock on the side approach gate. Immediately, he informed the said incident to the plaintiff over telephone. Later, plaintiff visited the suit property and noticed the break opening of the locks and returned to Chikkamagaluru. 56. In his cross-examination, P.W.2 has deposed that he has not produced any documents to show that he is working as driver in the Estate. He admits that about eight CCTV cameras are installed in the Estate. Among them, in the office there are two cameras, in coffee kana

26 one camera, near staff quarters there are three cameras, in the pulper there are two cameras and in the coffee godown, there is one camera. 57. He denied that in the quarters where he is residing, owner of the Estate was residing. He has specifically answered that he has seen defendant Nos.1 and 2 break opening the lock, but he did not resist the same. He denied that suit property was in the possession of defendant Nos.1. He denied the suggestion that he is deposing falsely to help the plaintiff. 58. Sri R.Gurudeva, first defendant is examined as D.W.1. He has filed an affidavit in lieu of his examination- in-chief. Except the sketches which were confronted to P.W.1 and got marked as Exs.D.1 and D.2, there is no other documentary evidence placed on record on behalf of the defendants. 59. In the affidavit, he has deposed that plaintiff is his younger brother and after the death of their father Sri

27 G.Rudrappa on 08.05.1977, there was a partition and an agreement was drawn on 01.04.1978 which was confirmed under the deed dated 28.12.1978. The partition was effected on 15.11.1996 and ever since the partition, himself and his brother are enjoying the properties as per the division. 60. He specifically deposed that plaintiff was never in possession of the suit property. He also deposed that plaintiff, his wife and children along with mother of D.W.1 resided in the house at Spencer Road, Chikkamagaluru. 61. He specifically stated that entire story woven in the plaint is incorrect and he was in possession of the property and he used to lock the suit property. It is further stated that, he lost the key bunch and in order the safeguard and protect the property and also to avoid future complications and to protect the movables in the suit property, he replaced the old locks of the doors by new locks.

28 62. He further deposed that plaintiff as usual by using his criminal brain, has filed suit on false pretext and filed CCTV footage to suit his woven story in an edited manner and sought for dismissal of the suit. 63. In his cross-examination, D.W.1 admits that ‘Doopadacool D Estate’ is part of ‘Doopadacool Estate’. He admits that in the year 1928, his great grandfather Sri V.R.Chikkachannananjappashetty had purchased about 1,000 acres of land and he had some properties in Kolar as well. 64. He admits that his father has got about 175 acres in ‘Doopadacool D Estate’ and the suit bungalow is constructed by his great grandfather. He admits that in the year 1960 the bungalow alone was existing in the Estate which has fallen to his father’s share. 65. He admits that his father died on 08.05.1977. Himself and his brother(plaintiff) were pursuing their education at Mysuru. He admits that after the death of his

29 father, Estate is transferred in his name and he was supervising the Estate. 66. He admits that himself, his mother and plaintiff were residing in the said bungalow. He deposed that after the demise of his father, he has maintained the Estate up to the year 1985. He admits that since 1980 he was trading in shares and stocks. He denied that to facilitate his stocks and shares business, he is residing in Bengaluru from the year 1980. He admits that up to the year 1996, himself, his mother and plaintiff were managing the Estate as tenants in common and such an arrangement was made for income tax purpose. 67. He further admits that after completing the Commerce degree, plaintiff came back to the Estate. Himself, his mother and plaintiff were residing in the Estate. He also admits that plaintiff started residing with his wife and children after his marriage in the Estate itself. He admits that he used to visit Kolar for attending a Court

30 case. He also admits that to establish that he was living in the Estate from 1980, there are no documents. 68. He admits that in Mallenahalli Panchayath Voters’ list, his name is not found. On the contrary, he admits that his name is shown in the Voters’ list of Koramangala. He denies having executed a power of attorney in favour of his mother for management of the Estate. 69. He admits that on 15.11.1996 there was a partial partition between himself, his mother, his children and the plaintiff and plaintiff’s children. Prior to the said partition, there was a survey of the land of the Estate. But there is no sketch that it was prepared by an Engineer. He admits that after partial partition, his mother and plaintiff were residing in the Estate. But he volunteered that plaintiff resided there for few months. 70. He admits that he had executed a power of attorney in favour plaintiff to manage the Estate. He has answered that about 3 to 4 times in a week, plaintiff used to visit the

31 Estate. He admits that on 03.11.2010, himself and his children cancelled the power of attorney executed in favour of the plaintiff and he did not demand for keys of the bungalow at that juncture. He admits about treasury box (iron safe) which was in existence since the age of his great grandfather and he is not aware of the contents of iron safe. 71. He admits that he has answered that keys of the said iron safe has been lost. But he has not made any duplicate for that. He admits the registered partition deed dated 15.11.1996 vide Ex.P.94. He denies that properties were divided as per Ex.P.94. 72. He admits that in the partition deed there is no mention as to second bungalow. He denies the measurement of second bungalow, whether it is a house as staff quarters or driver quarters. He admits that there is a varanda, three rooms, hall, kitchen and a dining room having telephone connection which is in the name of the plaintiff.

32 73. He admits that electricity connection is in the name of Chandramouli who is their relative. He has answered that from the year 1996 to March 2013 he has paid electricity consumption charges and he has got bills with him. 74. He admits that he has no documents to show that he has paid the telephone bills and plaintiff was paying the telephone bills. So also he admits that plaintiff has paid the charges for dish antenna. 75. He has specifically answered that when the keys were lost, he has told his Manager to prepare duplicate keys. But he does not know whether his manager has got duplicate keys manufactured or not. He admits that his mother and his nephews have filed suit against himself, his younger brother and his children in O.S No.113/2010. He denies the suggestion that to gain an upper hand in O.S No.113/2010, he high-handedly dispossessed the plaintiff.

33 76. Sri Shivapanchakshari, second defendant in the suit got examined as D.W-2 and in lieu of his examination-in- chief, he has filed an affidavit. 77. He has stated that he has been working in the Estate right from the period of Rudrappa. He knows the affairs of the Estate. He also knows about the rights of the plaintiff and defendant No.1. He has specifically stated that there was no incident as is contented by the plaintiff and the same is alleged with ulterior motive. 78. In his cross-examination, D.W.2 admits that he started working as Manager in the Estate from the year 1970. He admits that at that juncture father of the plaintiff and defendant namely Rudrappa and his brothers and sisters were the joint owners and the Estate measured about 167 acres. 79. He has answered that he has taken power of attorney from defendant No. 1 and his children in the year 2010. But he failed to produce the same before the Court.

34 80. He admits that Rudrappa died in the year 1978. Plaintiff and defendant No.1 both were residing in the Estate. He admits that suit bungalow is an ancestral bungalow. He further admits that first defendant is residing permanently at Koramangala in Bengaluru. But he does not remember when first defendant left for Bengaluru. 81. He admits that first defendant is in the business of shares and stocks. He admits that plaintiff was residing in the suit bungalow from the year 1980 to 1996 and was managing the Estate. 82. However, he stated that plaintiff used to live in Chikkamagaluru as well. He admits that in the year 2005, plaintiff constructed the house in Chikkamagaluru and visits the Estate every day and would be staying in the Estate till upto the evening. He admits that Plaintiff used to stay in the suit bungalow which is at serial No.1 in Ex. D-2. He also says that in Ex.D-2 at serial No.7 is the

35 house belonging to plaintiff. He admits that the property at Sl.No.1 in Ex.D-2 was under the control of first defendant. 83. He admits that repairs were carried out to the suit bungalow about 10 years earlier and so also repairs were carried out to Item No.7 in Ex.D-2. He admits that he has maintained the accounts for all these repairs. 84. Attention of the witness was drawn to Ex.P-95 to page No.27 which was the accounts maintained by him wherein for the repairs in respect of Item No.1 of Ex.D-2, the charges were debited to the Children of plaintiff. 85. He admits that the entries made in the cash book between 19.05.1995 to 31.03.2006 is in his hand writing. For Item No.7 of the property in Ex.D-2, the expenditure is debited from the account of the plaintiff and his children. 86. He admits that the power of attorney executed in his favour by the first defendant and his children was cancelled and thereafter the general power of attorney has

36 been executed in his favour. He admits that he is aged more than 60 years. 87. He admits that he was earlier working both with plaintiff and defendant. After he left working with plaintiff, he has not taken care of the interest of the plaintiff. He admits that there was a sketch prepared in the year 1996 and as per the sketch vide Ex.D-2, the properties are not situated and there is variation in the sketch than the reality. 88. The above evidence on record is sought to be re- appreciated by the revision petitioner to allow the revision petition. 89. In the light of the arguments put forth on behalf of the parties and after considering the material evidence on record, the following points would arise for consideration. (i) Whether the material on record would make out a case that plaintiff was in possession of the suit property before his dispossession as he has claimed in the suit?

37 (ii) Whether the first defendant has made out a case that Plaintiff was not in possession of the suit property immediately six months earlier to the filing of the suit and thus cannot maintain a suit under Section 6 of the Specific Relief Act? (iii) Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference? (iv) What Order? 90. REGARDING POINT Nos.(i) TO (iii): In the case on hand, there is no dispute that the suit Estate was earlier belonging to Rudrappa and his brothers and sisters measuring 167 acres. However there was a partition and the suit property and the measurement of coffee estate has reduced in its area which had fallen to the share of Rudrappa. 91. After the death of the father of the plaintiff and first defendant, there was a partition. A sketch is drawn at that juncture vide Ex.D-2. However, plaintiff has maintained that the factual aspects as to existence of the buildings and staff quarters etc. are not properly depicted in Ex.D-2.

38 92. There are serious disputes with regard to the partition as well and a suit in O.S No.113/2010 came to be filed by the mother of the parties and children of plaintiff against the first defendant and children of first defendant, which is pending consideration. 93. Section 6 of the Specific Relief Act reads as under: 6. Suit by person dispossessed of immovable property.—(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person [through whom he has been in possession or any person] claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. (2) No suit under this section shall be brought— (a) after the expiry of six months from the date of dispossession; or (b) against the Government. (3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.

39 (4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.”

40 duplicate keys manufactured and he does not know whether DW-2 has got it manufactured or not. If the first defendant had lost the keys, immediately he should have lodged the complaint to the police and no such complaint to the police is forthcoming on record. 98. Further, to establish that plaintiff was in possession of the property, plaintiff has stated that he had installed CCTV camera and his driver noted that the defendant Nos.1 and 2 with their henchmen tried to break open the lock to the main gate as well as the main door and therefore he informed about the incident to the plaintiff. 99. Immediately plaintiff saw the CCTV footage and went to the police station. However police did not act immediately. Therefore he had to again visit the police station and lodge the complaint. 100. At that juncture, police have intimated that the matter could be settled amicably between the parties.

41 101. Therefore, as a normal prudent person whatever the action that was to be taken soon after the incident occurred as is claimed in the cause of action paragraph, plaintiff has acted upon. 102. Further, if no incident has taken place as is contented by the first defendant in breaking open the lock, there was no necessity to file the suit inasmuch as, earlier to the filing of the suit there is no other proceedings between the plaintiff and first defendant with regard to possession of suit property. 103. Management of the property was under the control of the first defendant as is admitted by DW-2. It is also admission of DW-2 that the first defendant is having shares and stocks business and therefore, he permanently resides in the house at Koramangala, Bengaluru. 104. Material on record also discloses that there was a case filed by the first defendant in a Court at Kolar and he used to attend those cases.

42 105. DW-2 categorically admits that every day plaintiff used to visit the Estate and he used to be there till the evening. Therefore, necessarily plaintiff used to visit the suit bungalow as well. 106. To establish that he was visiting the suit bungalow, there is overwhelming material evidence placed on record both oral as well as the documentary evidence by the plaintiff in the form of electricity bills, telephone bills and dish antenna charges.

No such documents are forthcoming on behalf of the first defendant. 107. In the case on hand, this Court is not required to get into the title of the suit property as it is outside the scope of the suit. 108. All that the Court is required to consider is, whether the plaintiff has successfully established that he was in possession of the suit property before his dispossession. 109. From the lengthy oral testimony, it is easily deducible that plaintiff is successful in establishing that he

43 was in possession of the suit property and not the first defendant. 110. DW-2 who was the Manager of the Estate from the period of father of plaintiff and first defendant, has categorically admitted that first defendant is residing in Bengaluru. 111. Material on record also discloses that the first defendant and his children had executed power of attorney in favour of second defendant. Therefore, it was the plaintiff who was in possession of the property and second defendant being only a power of attorney holder was not in physical possession of the suit property. Thus, removal of the locks and gaining entry into the house would amount to dispossession of the plaintiff from the suit property earlier to the filing of the suit is established by plaintiff. 112. Cause of action at paragraph 12 of the plaint reads as under:

44 “12) The cause of action arose on 1978, when the plaintiff and his mother resided in the schedule premises and thereafter continuously when the plaintiff, his wife, children and his mother continued to reside there and be in possession and enjoyment of the suit schedule properties, on 20-03-2013, when the defendant Nos.1, 3, 4 and 5 broke open the locks and dispossessed the plaintiff on 20-03-2013 at 5-05 p.m., when the plaintiff went and tried to lodge the complaint with the police who refused to receive the same. On 21-03-2013, when the plaintiff sent the complaint through registered post. On 22-03-2013 when the police authorities acknowledged the same. The complaint has not yielded any result and therefore the plaintiff has approached this Hon'ble Court.” 113. Plaintiff, by placing cogent and convincing evidence on record established the said factual aspect and therefore, decreeing of the suit by the Trial Court vide impugned judgment is just and proper. 114. To establish that plaintiff was not in possession of the suit property, the first defendant failed to place any material evidence on record. Though it is a negative proof, first defendant was required to establish that he was in

45 possession of the suit property. To establish said fact, neither the oral testimony of DW-1 or DW-2 would advance the case of the first defendant to any extent. 115. It is the case of the first defendant that he lost the keys of the iron safe and therefore he had told second defendant to prepare the duplicate set of keys. At any rate, locks being broke open by the servants of first defendant is evident from the CCTV footage. 116. Unfortunately, when the records are placed before this Court, the compact disc is in broken condition. Therefore, this Court could not view the recordings in the said compact disc which were extracted from CCTV footage. 117. A feeble suggestion is no doubt made to the plaintiff that he has selectively downloaded the CCTV footage on the day of incident.

46 118. Nothing prevented the first defendant to summon the entire CCTV footage so as to find out the veracity of the allegations levelled against the first defendant. 119. It is to be remembered that the suit is one for possession which has been lodged immediately before filing the suit. The issues are to be proved by the plaintiff with the yardstick of preponderance of possibilities and not the strict proof as is required in a criminal case. 120. Therefore, the contentions of the first defendant that there was a selective downloading of the CCTV footage cannot be countenanced in law and that cannot be made as a basis for reversal of the decree passed by the Trial Court. 121. Further, learned Trial Judge has rightly appreciated the rival contentions of the parties though the material evidence is voluminous in nature having regard to the suit claim in proper perspective and assigned cogent and convincing reasons for its decision.

47 122. It is always open for the first defendant to establish his right over the suit bungalow if he is the owner of the same as per the partition deed and as per Ex.D-2 sketch, by filing an appropriate and comprehensive suit. 123. In view of the foregoing discussion, point No.(i) is answered in the affirmative, point Nos.(ii) and (iii) are answered in the negative. 124. REGARDING POINT No.(iv): In view of the finding of this Court on point Nos.(i) to (iii) as above, the following: ORDER (i) Civil Revision Petition is meritless and hereby dismissed, (ii) No orders to costs.

Sd/- (V. SRISHANANDA) JUDGE kcm