( 1 ) NOTICE to respondent No. 1 dispensed with as she has entered caveat. This appeal is taken up for final disposal with the consent of the appellant as well as the first respondent. During the course of this judgment, parties would be referred to as per their ranking before the trial Court.

( 2 ) THIRD-DEFENDANT is questioning the judgment and decree dated 9-1-2007 passed by the learned trial Judge in OS No. 4910/1993 decreeing the suit with costs and directing the defendant No. 3 to vacate and deliver vacant possession of the suit property to the plaintiff within three months from the date of the judgment and dismissing the suit against defendants 1 and 2.

( 3 ) THE plaintiff filed the suit against the defendant for delivery of possession of the schedule property and for damages at the rate of Rs. 400/- per month from the date of the suit till delivery of possession and for costs and other reliefs. The suit schedule property is a house bearing No. 134, Kaneshumari no. 129, measuring East to West 9' and North to South 14' situated at Arakere Village, Hulimavu Post, bangalore South taluk. The plaintiff is the only heir of Muniella and his wife has predeceased him. The total extent of the property is 40' x 30' and the same was granted to the plaintiff's father Muniella in the year 1973 and a site was formed in Sy. No. 4/3 and site number was given as 19. Plaintiff's father had put up a construction on the said site towards northern side and retained vacant space towards the southern side. Suffice it to say that the plaintiff's father died 12 years back, leaving behind the plaintiff as the only legal heir. Defendants are none other than the sons of the brother of the plaintiff's father and he was allotted a site towards the eastern side of site no. 19. Defendant No. 2 died during the pendency of the suit and his legal representatives were brought on record as defendants 2 (a) and (g ). It is the further case of the plaintiff that defendants requested the plaintiff to provide them accommodation in a portion of the house constructed by his father and accordingly plaintiff permitted them to occupy the same with a condition to vacate as and when required. The defendants continued to be in permissible possession of the suit schedule property and they are not tenants nor they have any right over the suit schedule property. When the Plaintiff requested the defendants to deliver vacant possession of the property. The defendants refused to vacate the same and as such the plaintiff filed a suit for recovery of possession and also for mesne profits at the rate of Rs. 400/- per month.

( 4 ) THE case of the defendants is that since muniella had no male issues, he adopted the third defendant Yellappa as his son by following adoption ceremony about 28 years prior to the institution of the suit. The third defendant being the adopted son of Muniella, is having half share in the suit property. It is further contended that the plaintiff was adopted by one Dasappa and she is residing at mallasandra in her husband's house and that she is not entitled to the relief sought for. They would also contend that she was not in possession and enjoyment of the property. The alternative contention taken by the defendants is that since they are in possession and enjoyment of the property for more than 12 years with the knowleldge of the plaintiff without any interruption, they have perfected their title by adverse possession and hence there is no question of permissive possession.

( 5 ) ON the basis of these pleadings, the following issues have been framed by the trial

Court; (1) Whether the plaintiff proves that D-1 is in permissive possession of the plaint schedule property? (2) Whether the plaintiff is entitled for possession of the plaint schedule property? (3) Whether the plaintiff is entitled for damages at the rate of Rs. 400/- per month ? (4) Whether the suit is bad for non-joinder of parties ? (5) Whether the court-fee paid is sufficient? (6) Wha

Click Here to Read the rest of this document