This appeal is filed by defendant Nos. 1 and 2 against

the plaintiff praying to set aside the judgment and decree

dated 11.07.2011 passed in R.A. No. 268/2010 by the Fast

Track Court-I, Shivamogga and the judgment and decree

passed in O.S. No. 319/2005 by the II Additional senior

Civil Judge, Shivamogga dated 21.09.2010 and praying to

dismiss the suit and allow the counter claim made by the

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appellants – defendants in O.S. No. 319/2005. The

appellants are the defendants and respondent was the

plaintiff in O.S. No. 319/2005 on the file of II Additional

senior Civil Judge, Shivamogga.

2. Respondent – plaintiff has filed a suit in O.S. No.

319/2005 against the appellants – defendants seeking

relief of declaration of title and direction to the defendants

to vacate and handover vacant possession of suit schedule

property and also for damages at the rate of Rs.500/-. It is

the case of the plaintiff that she has purchased the suit

schedule property by a registered sale deed dated

14.01.1987 which is consisting of Mangalore tiled roofed

house from its original owner Sri. T. Mukundappa and his

wife Smt. Jayalakshmamma. Schedule of the property is as

under:

SCHEDULE

The

property,

residential

house

of

Mangalore tiled roof of site No. 82 of the Layout

of Kallahalli Grama Thana, Originally coming in

Navile Group Panchayat measuring 7 Meters in

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Width and 45 Feet in length now coming in

Vinobhanagara,

60 Feet Road,

Shivamogga

bounded by to:

East

:

Site No. 83 in occupation of

Naganna

West

:

Site No. 81 now the house

property of Kuppamma and

Kamakshamma

North

:

Government property now road

South

:

Road”

3.

It

is

plaintiff’s

further

case

that

Smt.

Jayalakshmamma, wife of Sri. T. Mukundappa had acquired

the vacant site bearing No. 82 formed in Kallahalli Layout,

Gramathana through a grant certificate issued by the then

Tahsildar to an extent of 9 X 14 meters and she

subsequently built a residential house of Mangalore tiled

roof and khatha was made in her name. Plaintiff being

medical practitioner was residing in Bengaluru and she

authorized her cousin Sri. Meer Ismail to let out the

premises on rent to suitable person and defendant by

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name Sri. Veereshappa who was working under Sri. Meer

Ismail in his Rabbani Rice Mill secured the schedule

premises on rent from Sri. Meer Ismail. Initially the

defendants were paying the rent through Sri. Meer Ismail

and subsequently have stopped payment of rents. The

plaintiff requested defendant No. 1 to pay the arrears of

rent and also to vacate and deliver vacant possession. But,

without complying the said demand, defendant No. 1 got

filed suit in O.S. No. 19/2004 through his wife, i.e.,

defendant No. 2 on the file of I Additional Civil Judge

(Junior Division), Shivamogga for the relief of permanent

injunction wherein she has disputed the ownership of the

plaintiff over the suit schedule property.

4. The defendants pleaded that the suit is not

maintainable. The defendants admitted the ownership of

the plaintiff over suit schedule property. They denied the

other averments in the plaint. They contended that there is

no jural relationship of landlord and tenant between the

plaintiff and defendants. They admitted filing of O.S. No.

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19/2094 by defendant No. 2. The defendants have made

counter claim stating that defendant No. 1 has constructed

Mangalore tile roof house in the written statement schedule

property in the year 1996 itself. The written statement

schedule is as under:

SCHEDULE

Mangalore tiled house measuring 30 ft.

East-West and North-South 70 ft. situated in

gramatana of Kallahalli now it is called Kanchi

Kamakshinagara or Jatpat Nagara, 60 ft. road,

Vinobanagara, Shimoga in the old site No. 82

and new site no. 169 bounded by:

East by:

Naganna and Ramesh’s property in

old site No. 83 and new site no. 168

of Gramatana

West by: Houses of Smt. Kippamma and Smt.

Kamakshmma, Old site No. 81, new

site no. 170, 183

North by: Road

South :

Road”

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