THE HON’BLE SRI JUSTICE K.C.BHANU CITY CIVIL COURT APPEAL NO. 136 OF 2006 DATED: 01-04-2011. Between Sri Saraswathi Educational Society, rep. by its Secretary, Sangeeta Dayal … Appellants-Defendant And 1.Kishanlal and another …Respondents-Plaintiffs THE HON'BLE SRI JUSTICE K.C. BHANU CITY CIVIL COURT APPEAL NO. 136 OF 2006 JUDGMENT: This appeal is directed against the judgment and decree, dated 17-04-2006, in O.S.No.3482 of 2004, on the file of the VII Senior Civil Judge, City Civil Court, Hyderabad, whereunder and whereby the suit filed for recovery of possession from the defendant society and to award future mesne profits at Rs.,2,000/- per month from the date of suit till the date of eviction, was decreed. 2. Appellant herein is the defendant and the respondents herein are the plaintiffs in the suit. 3. The averments of the plaint in brief are as follows: Plaintiff No.1 is the absolute owner and possessor of house bearing No.21-7-245, admeasuring 139 sq. yards situated at Shakker Kota, Charkaman, Hyderabad. Plaintiff No.2 purchased the schedule property under agreement of sale, dated 16-05-2001 executed by plaintiff No.1. Plaintiff No.1 allowed the defendant society to run Primary School in the year 1989 in a portion of it admeasuring 90 sq. yards. The secretary of the defendant society is eldest daughter-in-law of plaintiff No.1. Plaintiff No.1 used to reside with other family members in the remaining portion admeasuring 49 sq. yards. Plaintiff No.1 got the suit schedule property under registered Will executed by his uncle late Fakeer Chand, who was the owner of the property. Plaintiff No.1 applied for probate of the said registered Will in O.P.No.2080 of 2000 on the file of the V Additional Chief Judge, City Civil Court, Hyderabad and the same was allowed on 06-02-2001. Initially when the school was started, plaintiff No.1 was also worked for welfare of the society. His daughter-in-law promised to pay Rs.2,500/- towards his services, but failed to pay the same. His daughter-in-law and her husband did not care for the welfare of the family of plaintiff No.1 and did not provide maintenance. She filed O.S.3159 of 2001 on the file of the III Additional Rent Controller- cum-XV Junior Civil Judge, City Civil Court, Hyderabad, against plaintiff No.1 for perpetual injunction not to dispossess her except by due process of law and the same was decreed on 19-04-2004 by observing that the perpetual injunction will not in any way of the defendant (plaintiff No.1) or owner of the suit schedule property from evicting the plaintiff (defendant) from the suit schedule property by due process or law. It was further observed that plaintiff No.1 was the absolute owner of the property. As the defendant failed to vacate the premises, the present suit was filed for recovery of possession and to evict the defendant from the premises and to award mesne profits at Rs,.2,000/- per month from the date of suit till date of eviction and to pass mesne profits of Rs.67,000/-. 4. The defendant filed written statement denying the averments of the plaint. It is stated that the present suit was filed as a counter blast to O.S.3159 of 2001. It is admitted that the secretary of the defendant is the eldest daughter-in-law of plaintiff No.1. Plaintiff No.1 donated the property to the defendant society for running the school. When the plaintiff tried to dispossess the defendant from the suit schedule property, they approached the Station House Officer and filed O.S.3159 of 2001 and the same was decreed not to evict them except under due process of law. Hence, she prays to dismiss the suit. 5. Basing on the above pleadings, the following issues were settled by the trial Court: 1. Whether the plaint schedule property has been donated by the plaintiff in favour of defendant society? 2. Whether the plaintiff is entitled for eviction of the defendant from the suit schedule property? 3. Whether the plaintiff is entitled for mesne profits at the rate of Rs.2,000/- per month from the date of suit till vacated? 4. To what relief? 6. On behalf of the plaintiffs, P.Ws.1 to 3 were examined and Exs.A1 to A3 were marked. On behalf of the defendant, D.W.1 was examined, but no documents were marked. 7. The trial Court after considering the oral and documentary evidence available on record, decreed the suit. Aggrieved thereby, this appeal has been preferred by the defendant. 8. Now the points for determination are; 1. Whether the plaint schedule property has been donated by the plaintiff in favour of defendant society? 2. Whether the plaintiff is entitled for eviction of the defendant from the suit schedule property? 3. Whether the plaintiff is entitled for mesne profits at the rate of Rs.2,000/- per month from the date of suit till vacated? 4. To what relief? 9. Learned counsel appearing for the appellant-defendant contended that no notice of eviction has been issued by the respondent and for ascertaining mesne profits, no evidence was adduced, that the property was donated to the defendant by the plaintiff No.1 and therefore, he is not entitled for eviction of the defendant and hence, he prays to set aside the judgment and decree of the trial Court. 10. On the other hand, learned counsel appearing for the respondents-plaintiffs contended that the plaintiff No.1 is the absolute owner of the property as he got the property by virtue of a Will, that the Will has been probated, that the ownership of the plaintiff No.1 to the property was not denied or disputed by the defendant, that as the defendant is in permissive possession of the property, she has no option except to vacate the premises as and when directed by the plaintiff, that the trial Court after consideration of evidence on record, rightly decreed the suit and absolutely, there are no grounds to interfere with the same. 11. With regard to point No.1, since it is specifically pleaded by the defendant that the suit schedule property has been donated by the plaintiff No.1 in favour of the defendant society, the burden is on the defendant to establish the same. No other material is filed to show that the property was donated by the plaintiff. The right, title and interest in the property where the value of the property is more than Rs.100/- can only be transferred by way of a registered instrument. But such an instrument is not there. Therefore, the trial Court rightly held that the defendant failed to establish that the property was donated by the plaintiff in favour of the defendant society. 12. Coming to point No.2, it is not in dispute that the plaintiff No.1 is the owner of the property as he got the property by virtue of a Will. Even this aspect of the case has not been denied or disputed by the defendant. It is not in dispute before this Court that while granting probate to the plaintiff No.1, it was held that plaintiff No.1 is the owner of the suit schedule property. As seen from the evidence of plaintiff, it is clear that he has got right to demand the defendant to vacate the premises. Even the defendant did not deny or dispute that she obtained possession from the plaintiff No.1 to establish the school. When the defendant is in permissive possession of the suit schedule property, she has no option except to vacate the premises as and when directed by the plaintiff No.1. Therefore, the trial Court rightly ordered eviction of the defendant. 13. Coming to point No.3, an amount of Rs.2,000/- was ordered towards mesne profits from the date of suit till the date of eviction. It is not in dispute that the defendant is running the school. It is also not in dispute that the defendant filed O.S.No.3159 of 2001 on the file of the III Additional Rent Controller, Hyderabad, not to dispossess her except under due process of law and the same was decreed granting the relief, but subject to eviction through process of Court. The extent of land is 90 sq. yards. The evidence of P.W.1 would go to show that he is claiming mesne profits at Rs.2,000/- per month from January, 2000 onwards. That cannot be shown to be on higher side. Even the defendant did not state in her chief-examination that the amount claimed by the plaintiff No.1 is excessive or untenable. Admittedly, there are about 100 students in the school. Therefore, considering this aspect, the trial Court rightly granted mesne profits at Rs.2,000/- per month and there are no grounds to interfere with the same. 14. It is brought to the notice of this Court by the learned counsel for the defendant that the defendant has to secure alternative accommodation for the purpose of providing accommodation to the students who are to be promoted to next higher classes and who are to be admitted in the lower classes. Considering this aspect, time can be granted till 15th June, 2011 to vacate the premises. 15. Accordingly, the Appeal is dismissed directing the appellant-defendant to vacate the premises on or before 15th June, 2011, failing which, plaintiff No.1 can execute the decree through process of Court. No order as to costs. _______________ K.C. BHANU, J DATED: 01-04-2011 Hsd