DECREE

DATED

03.09.2019

PASSED

IN

O.S.

NO.6696/2011 ON THE FILE OF THE XXXV ADDITIONAL CITY CIVIL AND

SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT FOR POSSESSION

AND DAMAGES.

THIS RFA, HAVING BEEN HEARD AND RESERVED FOR JUDGMENT

ON 05.12.2022 COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS

DAY, P.S. DINESH KUMAR J., PRONOUNCED THE FOLLOWING:-

JUDGMENT

This appeal by the first defendant is directed against the

judgment and decree dated September 03, 2019 in O.S No.

6696/2011 passed by the learned XXXV Additional City Civil

and Sessions Judge, Bangalore, decreeing the suit for

possession and damages.

2. For the sake of convenience, parties shall be referred

as per their status before the Trial Court.

3. Brief facts of the case are, the suit schedule property

was owned by One Shri. Ramaiah. The second defendant is

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‘Indian Bank’¹. The bank had advanced loan to one M/s. AISH

Motors. Shri. Ramaiah had mortgaged the schedule property

with the Bank by depositing title deeds as additional security.

Since M/s. AISH Motors became a defaulter, the Bank initiated

proceedings before Debt Recovery Tribunal at Bengaluru. The

Bank took symbolic possession of the schedule property and it

was sold in public auction. Plaintiff purchased the property for

Rs.43,50,000/- and a sale certificate was issued to her. First

defendant is in occupation of the suit schedule property.

Plaintiff has brought this suit for possession and damages.

4. It is not disputed by first defendant that she is a

tenant in ‘B’ schedule property described in the written

statement. Her case is she has paid a sum of Rs.5,20,000/- to

Ramaiah as refundable security deposit which would not carry

any interest; that she is in lawful possession of the suit

property; and that plaintiff had purchased the entire property

on ‘as is where is’ basis. Therefore, plaintiff could not

dispossess her without refunding Rs. 5,20,000/-; that she had

1 Hereinafter referred to as the Bank

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incurred expenses towards litigation, payment of water and

electricity charges to the entire building; and she is entitled for

damages of Rs. 11,34,000/- in addition to the refund of Rs.

5,20,000/-.

5. With the above pleadings, parties went to trial. Based

on the pleadings, the learned Trial Court framed following

issues:

1) Whether the plaintiff is entitled for possession of plaint

schedule property from defendant No.1 he being the owner?

2) Whether defendant No.1 proves that plaintiff is liable to pay

the counter claim amount?

3) Whether the plaintiff is entitled for damages at the rate of

Rs.10,000/- p.m. from defendant No.1?

4) What order?

6. On behalf of plaintiff, her GPA Holder was examined as

PW-1 and Ex.P.1 to Ex.P.10 marked. On behalf of Defendants,

defendant no. 1 was examined as DW1 and Ex.D.1 to Ex.D.30

marked. Answering issues No. 1 and 3 in the affirmative and

issue no. 2 in the negative, the Trial Court has decreed the suit.

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7. Shri. Jayanth Venkatram, for the appellant-defendant

No.1, in substance, submitted that:

 the Trial Court had framed fresh issues without giving an

opportunity to the appellant-first defendant;

 Appellant had no opportunity to address plaintiff’s claim of

Rs. 10,000/- as damages as the said issue was not framed

earlier;

 Trial Court failed to notice that plaintiff had purchased the

property on ‘as is where is basis’ and therefore, first

defendant was entitled for refund of Rs.5,20,000/-.

8. Shri. K.T. Guruprasad and Shri. K. Shrikrishna, learned

Advocates for the respondents, argued in support of the

impugned judgment.

9. In the light of the pleadings, evidence on record and the

arguments of learned Advocates for the parties, the points

which arise for our consideration are:

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i.

“Whether plaintiff is entitled for the possession of the suit

property and damages?

ii.

Whether the impugned judgment and decree calls for any

interference?”

10. Undisputed facts of the case are, plaintiff has purchased

the suit property in public auction. First defendant has