IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24^TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA REGULAR FIRST APPEAL NO.893 OF 2024 (INJ)

BETWEEN:

MR. ALLAN SUNDER RAJ S/O LATE MAJOR T.A. SUNDER RAJ, AGED ABOUT 80 YEARS, RESIDING AT NO.14, MEG OFFICERS COLONY, JAI BHARATH NAGAR, BANASWADI MAIN ROAD, BENGALURU-560033.

SENIOR CITIZEN BENEFIT NOT CLAIMED …APPELLANT (BY SRI TOMY SEBASTIAN, SENIOR COUNSEL FOR SMT. RENY SEBASTIAN, ADVOCATE)

AND:

MRS. MIRIAM MEERA KUMAR Digitally signed by W/O COL. SEBASTIAN KUMAR (RETD)

MAHALAKSHMI B M AGED ABOUT 59 YEARS, Location: HIGH RESIDING AT NO.8/302, COURT OF CARLESTON ROAD, COOKE TOWN, KARNATAKA BENGALURU-560005.

(REPRESENTED BY HER HUSBAND/GPA HOLDER COL. SEBASTIAN KUMAR (RTD))

…RESPONDENT (BY SRI M. ARUN PONAPPA, ADVOCATE FOR C/R)

THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 14.02.2024 PASSED IN O.S.NO.6162/2017 ON THE FILE OF IX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE COUNTER CLAIM FOR MANDATORY INJUNCTION.

THIS APPEAL COMING ON FOR ORDER, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA

ORAL JUDGMENT

The present Regular First Appeal is preferred by the defendant assailing the judgment and decree dated 14.02.2024 in O.S No. 6162 of 2017, on the file of the IX Additional City Civil and Sessions Judge, Bengaluru, (hereinafter referred to as ‘the trial Court’ for short). By the impugned judgment and decree, the trial Court dismissed the counter claim filed by the defendant.

2. The plaintiff filed the suit seeking mandatory injunction to direct the defendant (her brother-in-law) to vacate schedule ‘B’ property (servant quarters/garage portion). The defendant Allan Sunder Raj resisted the claim and filed a counterclaim asserting ownership over ‘C’ schedule property, (there is construction) and sought mandatory injunction against the plaintiff. The trial Court vide the judgment and decree dated 05.04.2021 decreed the suit of the plaintiff with respect to schedule ‘B’ property. However, the counter claim was not dealt with. On appeal in RFA 658/2021 by the defendant, this Court remanded the matter to frame issues on counter claim and permit evidence. After remand, issues were framed and evidence were taken. The trial Court on 14.02.2024, dismissed the counter claim holding that (i) defendant had already relinquished his rights over the first floor and terrace in favour of Colonel Sebastian Kumar on 01.12.1982-settlement deed. (ii) Major T.A Sunder Raj had no title left in 2004, hence could not gift the terrace under Exhibit D5. (iii) Therefore, the defendant had no subsisting title over ‘C’ schedule property. Aggrieved by which, the defendant is before this Court in this appeal.

3. Learned senior counsel appearing for the appellant would urge the following grounds:

i) It is contended that Exhibit D5, executed by Major T. A. Sunder Raj, father of the appellant/defendant specifically conveys the terrace rights with 2 rooms in favour of the appellant.

ii) On the strength of this gift deed, the appellant is in lawful possession over ‘C’

schedule property.

iii) Original acquisition of site No. 14 was measuring 11,025 square feet purchased under a registered sale deed dated 02.02.1967 by Major T. A. Sunder Raj from Madras Sappers Officers House Building Cooperative Society (‘Society’ for short). The father of the defendant/appellant gifted the entire first floor and terrace with 1 room to the appellant, thereby recognising his rights over the upper portion under Exhibit D2, a gift deed dated 25.07.1977. Further, his father settled the ground floor in favour of the appellant under Exhibit D3 dated 04.11.1982 and it is urged that although Exhibit D3 does not expressly reserve terrace rights, it also does not divest the Donor (Major Sunder Raj) of them.

iv) It is submitted that the father of the appellant once again gifted the terrace with 2 rooms to the app