A suit for possession is maintainable even though the plaintiff has not sought relief of declaration, if the defendant does not dispute the plaintiff's title to the property and is in permissive possession of the property under the plaintiff.

Appellant is before this Court being aggrieved by the

judgment and decree dated 15.04.2021 passed in

O.S.No.95/2009 on the file of the learned Principal Civil

Judge and JMFC, Nippani (hereinafter referred to as the

’Trial Court’), in and by which the Trial Court decreed the

suit for possession and directed the defendant to hand

over the vacant physical possession of the suit schedule

property within 3 months from the date of the order.

Aggrieved by the same, the defendant filed a regular

appeal in R.A.No.14/2021 before the learned Senior Civil

Judge and JMFC, Nippani (hereinafter referred to as the

‘First Appellate Court’). On re-appreciating the merits of

the case the First Appellate Court has dismissed the

appeal confirming the judgment and decree passed by the

Trial Court. Being aggrieved by the same, the appellant is

before this Court.

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2.

The aforesaid suit in O.S.No.95/2009 filed by

the plaintiff on the premise that the suit schedule property

being a house property was her ancestral property

belonging to her father namely Sri. Kallappa Naik. That on

his demise, the plaintiff being the only legal heir

succeeded to the suit property and that she has been in

actual possession and enjoyment of the same.

2.1

That the defendant who is a stranger to

the family being in need of residential house, defendant

approached the plaintiff and the plaintiff had put the

defendant in possession of the suit property for a

period of 2 years and in that regard the defendant

agreed to pay a sum of Rs.38,000/-. In furtherance to

the same, the plaintiff executed an agreement on

26.09.2002. The defendant agreed to redeliver the

possession of the suit property after the expiry of the

agreed period. However, even after lapse of 3 years

from the date of agreement, the defendant did not

vacate and deliver the suit property.

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2.2

It is alleged that the defendant had forged

his thumb impression and created a false, fabricated

document based on which he had made fraudulent

Varadi to the Gram Panchayath and had got his name

mutated in the revenue records in collusion with the

local authorities on 12.04.2006. Plaintiff had approached

and requested the defendant on several occasions to

vacate and hand over the vacant possession of the suit

property, but the defendant did not comply with the

request. The plaintiff learnt about the illegal entries in

the revenue records and immediately thereof filed the

above suit for possession.

3.

In response, defendant filed written statement

denying the plaint averments. It is a specific case of the

defendant that the plaintiff had agreed to sell the suit

schedule property being VPC No.135A consisting of

dilapidated house and open space and had thus executed

an

agreement

of

sale

on

26.09.2002

for

a

sale

consideration of Rs.52,000/- of which the defendant had

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paid earnest amount of Rs.38,000/-. That the plaintiff had

agreed to execute a deed of sale by receiving the balance

sale consideration of Rs.14,000/- on or before 30.11.2002.

The defendant had made the payment of Rs.14,000/- on

20.11.2002 and was thus put in possession of the suit

property.

3.1

That the plaintiff having received the

entire sale consideration had submitted a Varadi to the

panchayath authorities enabling mutation of the name

of the defendant in the revenue records. Accordingly,

the defendant has been in possession and enjoyment of

the suit property without any objections by the plaintiff

or anyone claiming through or under him.

3.2

That the defendant had expended a sum

of Rs.1,50,000/- for construction of house and he is

running a hotel business. He is using the same for

residence-cum-business purposes.

4.

Based on the pleadings, the Trial Court framed

the following issues:

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“1. Whether the plaintiff proves that, she is absolute

owner of the suit schedule property?

2. Whether the plaintiff is entitled for vacant possession

of suit schedule property from defendant?

3. Whether the plaintiff is entitled for the relief as sought

for?