The plaintiff has the absolute right over the property and can claim possession from the defendant based on the lease-cum-sale agreement and the defendant's permissive possession as a licensee.

JUDGMENT :

K.S. HEMALEKHA, J.

1. The present second appeal by the defendant Nos. 1(a) to 1(d) assailing the judgment and decree dated 23.03.2010 in R.A. No. 16/2007 on the file of the Fast Track Court-I, Chikodi confirming the judgment and decree dated 15.02.2007 in O.S. No. 7/2004 on the file of the Civil Judge (Jr. Dn.) Nipani.

2. The parties herein are referred to as per their ranking before the Trial Court for the sake of convenience.

3. The brief facts of the case are that, the plaintiff-respondent filed a suit seeking for relief of possession in respect of premises bearing House No. 351/43A/36/68 measuring 12 feet east to west and north to south 30 feet situated at Mangalwar Peth, Nipani Taluk, Chikodi. It is averred that the suit property is allotted to the father of the plaintiff by the CMC, Nipani 20 years back on a lease-cum-sale agreement and the father of the plaintiff has constructed house by using country tiles measuring east-west 24 feet and south-north 30 feet and permitted the original defendant on his request to occupy the premises on leave and licence basis. Further, it is averred that the defendant failed to vacate the premises in spite of several requests and legal notice issued to the defendant. The plaintiff having no other alternative has filed the suit for possession.

4. Pursuant to the summons issued by the Trial Court, defendant appeared through his counsel and filed written statement. During the pendency of the suit, defendant No. 1 died and his legal representatives were brought on record and adopted the written statement filed by defendant No. 1. The averments in the written statement is that, defendant and his family members are in possession of the building measuring 12 feet east-west and 24 feet north-south towards the southern side of the entire suit property. The defendant denied that the plaintiff is the owner of the suit property and that the constructed structure was put up by the father of the plaintiff. The leave and licence as stated by the plaintiff is specifically denied by the defendants.

5. The defence of the defendant is that in the year 1971, application was submitted for grant of plot measuring 12 x 24 feet to the CMC, Nipani by both the plaintiff and the defendant and the CMC allotted on ground rent, both to the father of the plaintiff and the original defendant i.e. Mahadev Maruthi Ghorpade, to put up separate building by investing separately and accordingly, the father of the plaintiff is residing in the northern half portion of the said structure with his family members and father of these defendants the original defendant-Mahadeva Maurthi Ghorpade is residing with his family members in the southern half portion. It is stated that CMC at no point of time conferred the ownership of the said plot either in favour of the plaintiff or the defendant and therefore, the plaintiff cannot claim to be the owner of the entire structure of the plot measuring 12 x 24 feet and also cannot claim the possession of the half portion or area where the defendants are residing. It is stated that the plaintiff is not the owner since no ownership rights have been conferred and it is the CMC who is the owner of the property and the question of termination of lease by the plaintiff as a owner would not arise and the plaintiff has no locus-standi to file a suit against the defendants seeking possession of the suit property.

6. The Trial Court on the basis of the pleadings, framed the following issues:

“1. Whether plaintiff proves that he permitted the defendant to occupy the suit house as a license?

2. Whether plaintiff proves that the defendant had promised to hand over the vacant possession of suit house within two years?

3. Whether defendant prove that his father and plaintiff’s father together obtain the open site measuring 12 feet x 24 feet ground rent basis by applying in the name of plaintiff’s father?

4. Whether plaintiff proves that he is entitled for the relief?”

7. In order to substantiate their claim,