JUDGMENT

1. The plaintiff is in appeal invoking Section 96 of the Code of Civil Procedure, challenging the dismissal of suit for possession and for consequential injunction.

2. The suit property is a residential house.

Defendant No.1 is the brother of plaintiff and defendant No.2 is said to be the tenant of the portion of the premises. The plaintiff claimed to be the absolute owner of the suit property on the premise that the suit property was allotted to him on 18.12.1975. Later on 06.04.1977, the lease cum sale agreement was executed by the Bengaluru Development Authority in favour of the plaintiff.

3. The plaintiff claims to have constructed the building by raising loan by entering into an agreement with the builder. The plaintiff has pleaded that as he was working as a Government employee, as an official quarters was allotted to him, he allowed his brother- defendant No.1 who did not have his accommodation, to occupy a portion of the suit property on temporary basis.

Plaintiff further claims that on 15.12.1988, the regular sale deed was executed in his favour and his request to defendant No.1 to deliver the possession was not acceded.

Hence the suit is filed.

4. Defendant No.1 contested the suit. Defendant No.2/tenant vacated the premises during the pendency of the suit.

5. Defendant No.1 took a stand that the property belonged to plaintiff’s and his father A. Muniswamy. The sale transaction is in the plaintiff's name and the father of the plaintiff and defendant No.1 paid for purchase as well as construction. Since the father of the plaintiff and 1st defendant was a Government employee nearing the age of superannuation, the property was purchased in the name of the plaintiff as it would be easy to avail loan facility. 6. The Trial Court held that the plaintiff is not the absolute owner of the suit schedule property. The Trial Court has held that the property belonged to the father of the plaintiff and 1st defendant and dismissed the suit.

7. Learned Senior counsel Sri Udaya Holla for the plaintiff/appellant would contend that there is presumption that the plaintiff is the absolute owner as all the property records including title deeds are in the name of the plaintiff. Heavy burden cast on the defendant No.1 to prove otherwise is not established. No acceptable documents are produced by first defendant to hold that property belonged to plaintiff’s father.

8. It is also urged that Ex.D.1 relied on by the Trial Court which is said to be a declaration made by the plaintiff to his father admitting that the suit property belongs to his father to dismiss the suit. Learned Senior counsel urged that the signature on Ex.D.1 is not the signature of the plaintiff and Dw1 admitted it in the cross examination, the Trial Court wrongly relied on the said document to dismiss the suit.

9. It is also urged by the learned Senior counsel that the alleged diaries maintained by the plaintiff's father at Ex.D.37 and Ex.D.37a - do not establish the plea that the plaintiff’s father owned the property. He also urged that the recital in the lease cum sale agreement and the sale deed would establish that the plaintiff alone is the owner.

10. It is also his further contention that the 1st defendant has not produced any materials to show that the 1st defendant or his father have contributed to purchase the property in the name of the plaintiff. It is his further submission that the documents produced by the plaintiff particularly the additional documents produced before this Court under Order XLI Rule 27 of the Code of Civil Procedure would reveal that the plaintiff applied for permission to construct the building, applied for loan and mortgaged the property and had entered into an agreement with builder and carpenter. These documents would establish the fact that the plaintiff is the real owner of the property and the transaction was not a benami transaction as contended by defendant No.1.

11. Learned counsel for respondent No.1 -

defendant No.1 referring to the