Bangalore District Court
M.C.Sundar vs Smt.M.Sharadamma on 30 January, 2018
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY (C.C.H.No.8)
Dated this the 30th day of January 2018
PRESENT: Sri.K.B.PATIL, B.Com.,LL.B.,(Spl)
XI Addl.City Civil Judge, B'lore city.
O.S.No.1904 of 2007
Plaintiff/s: M.C.Sundar
S/O Channegouda,
aged about 48 years,
R/at No.30/1, 12th Cross,
Agrahar Dasarahalli,
Bengaluru -79
(Sri. Ramachandra R.Naik, advocate for
Plaintiff)
Vs.
Defendant/s: 1. Smt.M.Sharadamma
W/O K.Muniraju,
aged about 38 years,
R/at No.4/A, 13th Cross,
Behind Police Station,
Chandra Layout,
Nagarbhavi I stage,
Bengaluru -72
2. Padmamma
W/O Late Govindaswamy,
Age: Major,
3. G.Manohar
S/O Late Govindaswamy,
Age: Major
2 OS.No.1904 of 2007
4. G.Shankar
S/O Late Govindaswamy,
Defendants No.2 to 4 are residing at
No.758-D1, Binny Pete, Bengaluru-23
(Sri.K.G.G advocate for defendant No.1
D.2 to 4: expt.,)
Date of the institution of suit: 7.3.2007
Nature of the suit: Specific performance
Date of the commencement of 17.7.2017
recording of evidence:
Date on which the judgment was 30.1.2018
pronounced:
Total duration Year/s Month/s Day/s
10 10 23
XI Addl.City Civil Judge,
B'lore city.
JUDGMENT
The present suit is filed by the plaintiff against the defendants for the relief of specific performance of agreement of sale dated 23.12.2005 and other reliefs.
2. The case of the plaintiff is that the BDA had formed a layout in Sy.No.8 situated at 3 OS.No.1904 of 2007 Gangagondanahalli, Nagaravbhavi, Bengaluru. One Sri. Govindaswamy son of Arjun i.e., husband and father of defendant No.2 to 4 has applied before the BDA for allotment of site for constructing a residential premises for his own use, then the BDA had allotted a site bearing No.887 in the layout formed by BDA in Sy.No.8, Gangagondanahalli, Nagaravbhavi, Bengaluru on 7.6.1990 measuring east to west 9.15 meters and north to south 6.10 meters as mentioned in the schedule property on lease cum sale basis. As per allotment, BDA has issued possession certificate in favour of late Govindaswamy, husband and father of defendant No.2 to 4, on the same day, possession was hand over to late Govindaswamy. The katha of the above said property was transferred in the name of late Govindaswamy. After the allotment and possession was handed over to late Govindaswamy, husband and father of defendant No.2 to 4, thereafter he has executed a sale agreement dated 29.11.1993 and a GPA in favour of defendant No.1 on 28.12.1993, which is registered before office of Sub-Registrar, Srirampuram, Bengaluru and handed over all original documents to defendant No.1. As per registered GPA, the 1st defendant has put in possession of the suit schedule property and she is managing all the necessary affairs pertaining to suit schedule property on behalf of Late Govindaswamy and also he has given no objections to BDA to issue the registered sale deed in favour of defendant No.1. The 4 OS.No.1904 of 2007 defendant No.1 is the sold an authentic person to deal all the affairs of the suit schedule property. Now the suit schedule property comes under the limits of Bengaluru Mahanagar Palike jurisdiction and defendant No.1 has paying the property taxes and katha also transferred from BDA to Bengaluru Mahanagar Palike in the name of late Govindaswamy. Late Govindaswamy had relinquished his right over the suit schedule property through the GPA dated 28.12.1993 in favour of defendant No.1. Due to some personal problems of the defendant No.1, she has intended to sell the suit schedule property and she offered to sell the same. Then the plaintiff had accepted the offer of defendant No.1 and he agreed to purchase the suit schedule property for valuable consideration of Rs.1,000/- per square feet. As the offer is accepted by the plaintiff, the defendant No.1 has executed an agreement of sale dated 23.12.2005, agreed to sell the suit schedule property with some conditions that first as on the date of agreement, the plaintiff has to pay a sum of Rs.2,00,000/- as earnest money and remaining Rs.3,00,000/- would be paid in the 1st week of March 2006 and remaining balance consideration of Rs.1,00,000/- to be paid within 6 months from the date of agreement, over all the transaction to be completed within 6 months from the date of agreement. The plaintiff has agreed the terms and conditions of the agreement and he paid a sum of Rs.2,00,000/- as earnest money on the date of agreement and the same is 5 OS.No.1904 of 2007 acknowledged by the defendant No.1 before the witness, who attested the agreement. This being the position, plaintiff had approached the defendant No.1 in the first week of March 2007 to pay a sum of Rs.3,00,000/- as 2nd installment as per the agreement, the defendant No.1 has refused to accept the said amount on the reason that entire remaining sale consideration to be paid at the time of registration of the suit schedule property. The plaintiff has believed the version of defendant No.1 and he consented to the same. In the month of June 2006, plaintiff once again approached the defendant No.1 and intimated that he gather entire sale consideration amount of Rs.4,00,000/- and he is ready and willing to obtain the sale deed in respect of suit schedule property. When the plaintiff expressed his ready and willing to perform his part on contract , once again the defendant No.1 has narrated the reason that she is trying to get the sale deed to the additional area, which is attached to suit schedule property and then she will execute the sale deed in favour of plaintiff. As per the assurance of defendant No.1, the plaintiff was waiting till October 2006 and again, he approached the defendant No.1 to execute the sale deed as per the agreement. But the defendant No.1 once again trying to postponing to execute sale deed. The plaintiff lost the confidence on the statement made by defendant No.1 to execute the sale deed, then got issued legal notice on 21.11.2006 though his advocate and expressed his 6 OS.No.1904 of 2007 readiness and willingness to perform his part as per the agreement and calling upon the defendant No.1 to perform her part towards the agreement, accept the remaining sale consideration and execute the sale deed. Even though the defendant No.1 has received the notice issued by the plaintiff, she did not take any risk to reply the notice issued by the plaintiff and she has not executed the sale deed in favour of plaintiff as per the agreement. On refusal of to perform their part on the contract dated 23.12.2005, the plaintiff has no other alternative, he has filed this suit for specific performance against the defendants to enforce the agreement of sale. The cause of action of the suit is arose on 23.12.2005, when the defendant has entered with the agreement of sale of suit schedule property in favour of plaintiff. The suit is well within the time. Hence prayed for decree the suit.
3. In response to the summons issued in this case, defendant No.1 appeared through counsel and not filed any written statement. After filing the written statement filed by defendant No.2 to 4, the suit was dismissed for default on 8.10.2010. Thereafter, the plaintiff filed Misc.Case No.1077/2010 and thereafter, the suit summons again issued to defendant No.1 to 4, then defendant No.1 apepared through counsel, but not filed any written statement. Defendant No.2 to 4 not served the summons and placed exparte. Defendant No.2 to 4 before dismissal, filed the 7 OS.No.1904 of 2007 written statement contending that the suit filed by the plaintiff is not maintainable either in law or on facts. The same is full of fault lies and made out fraudulently by collusion with defendant No.1 in order to harass the defendants and hence, the same is liable to be dismissed in limine. The relationship of the 2nd defendant is not correct and the 2nd defendant is not the wife of late Govindaswamy. Defendant No.2 to 4 are unnecessarily made as parties to the suit and these defendants are not the parties to the alleged agreement dated 23.12.2005. The averments made in para No.3 and 4 of the plaint are true and correct. The averments made in para No.5 that the possession was handed over to late Govindaswamy is correct, the said late Govindaswamy is not the husband of defendant No.2, but the said averment that the sale agreement dated 29.11.1993 is totally imaginary as no such year is still in existence. It is true that the GPA was executed by late Govindaswamy in favour of defendant No.1 on 28.12.1993, but it is utter false that the 1st defendant was put in possession of the suit schedule property. These defendants were in peaceful possession and enjoyment of the suit schedule property until 4.5.2006. The suit schedule property was alienated by late Govindaswamy in favour of one Bhagyamma on 4.5.2006 by registered sale deed. The said Govindawamuy expired on 22.6.2006. It is important to state that the plaintiff collusion with 1st defendant have misrepresented the facts before the court. The 1st defendant 8 OS.No.1904 of 2007 never been in possession of the suit schedule property. The alleged sale agreement and GPA was executed in the back of these defendants. The sale agreement is alleged by the plaintiff on the face of the said document itself, it is made clear that the balance sale consideration of Rs.32,000/- was to be paid by the defendant No.1. The defendant No.1 had never paid the said balance sale consideration and hence, late Govindaswamy son of Aujun had cancelled the said GPA dated 28.12.1993 under the legal notice dated 22.3.2006 an also through the public notice dated 31.3.2006 published in Sanjevani Kannada newspaper. The said Govindaswamy after canceling the said GPA has executed the sale deed in favour of one Bhagyamma during his life time. The said facts are within the knowledge of the plaintiff and defendant No.1. Hence, the suit filed by the plaintiff does not survive and the same is liable to be dismissed. The plaintiff is not a bonafide purchaser and the said sale agreement dated 23.12.2005 is made out for the purpose of the case by the plaintiff in active collusion with the defendant No.1. It is important to state that the defendant No.1 has not entered into the alleged sale agreement dated 23.12.2005 on behalf of these defendants or on behalf of late Govindaswamy. As the defendant No.1 is only a GPA holder and the said GPA being cancelled by late Govindaswamy, the said sale agreement has not value. More over, as already stated, the said sale agreement is been made out by the plaintiff in active collusion with 9 OS.No.1904 of 2007 defendant No.1. The averments made in para No.6 that the late Govindaswamy had relinquished his right over the suit schedule property through the GPA dated 28.12.1993 in favour of defendant No.1 is utter false for the reasons stated above. The further averments that the defendant No.1 has intended to sell the suit schedule property and the plaintiff having accepted the offer made by the defendant No1. to purchase the suit schedule property for a valuable consideration of Rs.1,000/- per square feet and accordingly the agreement of sale dated 23.12.2005 being executed on the conditions that on the date of agreement, the plaintiff has to pay a sum of Rs.2,00,000/- and remaining Rs.3,00,000/- would be paid in the 1st week of March 2006 and the balance of Rs.1,00,000/- to be paid within six months from the date of agreement is all made out by the plaintiff in active collusion with the defendant No.1 and hence, the said averments are denied as false. The plaintiff is not bonafide purchaser and the suit is filed in active collusion with defendant No.1 with an oblique motive to harass these defendants. The plaintiff had never made any enquiry with late Govindaswamy or with these defendants about the ownership of defendant No.1 nor about the existence of alleged GPA dated 28.12.1993. The plaintiff had failed to look into the alleged sale agreement dated 23.12.2005 as there was balance sale consideration to an extent of Rs.32,000/- out of Rs.42,000/-. More over, there was no absolute sale deed being executed by the concerned 10 OS.No.1904 of 2007 BDA in favour of late Govindaswamy and there being no absolute sale deed in favour of late Govindaswamy, the 1st defendant cannot acquired any right much less the said late Govindaswamy. The plaintiff though having the knowledge of the above said facts have made out the said sale agreement only for the purpose of this case. More over, the said khata of the schedule property being in the name of late Govindaswamy, the defendant No.1 has no right or title to enter into the sale agreement in her own name. The plaintiff has paid a sum of Rs.2,00,000/- as earnest money on the date of agreement and defendant No.1 having approached the plaintiff in 1st week of March 2006 demanding the entire sale consideration and the all the averments made in the said para is denied as false and the same is made out for the purpose of this case. It is important to state that the alleged sale agreement is not been registered as per the provisions of Registration Act and the stamp duty paid on the sale agreement is insufficient. This classified the claim of these defendants that the said sale agreement is made out document for the purpose of the case. The averments made in para No.8 that in the month of June 2006 plaintiff has made out to the defendant No.1 about his readiness and willingness to obtain the sale deed in respect of suit schedule property and to perform his part of contract in all made out only for the purpose of the case and the further averments that the defendant No.1 has obtained from executing the sale deed on the pretext of getting the sale 11 OS.No.1904 of 2007 deed of additional area attached to suit schedule property is totally false and baseless. It is important to state that the sale deed in respect of suit schedule property itself not being made out, the question of additional area is totally imaginary and the same is made out only for the purpose of the case. The averments made in para No.9 that as per the assurance of defendant No.1, the plaintiff having waited till October 2006 and once again the defendant No.1 trying to postpone the execution of sale deed and the plaintiff has lost the confidence to over the statements of defendant No.1 and got issued a notice on 21.11.2006 though his advocate calling upon the defendant No.1 to perform her part of contract is not within the knowledge of these defendants. More over the said notice is made out only for the purpose of the case as the defendants are not parties to the alleged notice dated 21.11.2006. More over the plaintiff has not issued any notice to late Govindaswamy or to these defendants and hence, the suit is liable to be dismissed on this ground also. The averments made in para No.10 that the defendant has refused to perform her part of contract and the plaintiff with no other remedy filed this suit for specific performance is totally made out for the purpose of this case. The plaintiff without giving notice to these defendants, and to the late Govindaswamy, the suit for specific performance does not survive. The cause of action for the suit against the defendants arose is false. He further denied all other plaint allegations specifically and prayed for dismiss the suit.
12 OS.No.1904 of 20074. On the above facts, the following issues having been framed:-
1. Whether the plaintiff proves that late Govinda Swamy had executed a registered GPA dated 28.12.1993 in favour of first defendant in respect of the suit schedule property?
2. Whether the plaintiff proves that the first defendant has marketable title to the suit schedule property?
3. Whether the defendant No.2 to 4 prove that late Govinda Swamy had cancelled the GPA dated 28.12.1993 by issuing a legal notice dated 22.3.2006 and public notice taken in Sanjevani daily dated 31.3.2006?
4. Whether the plaintiff proves that the first defendant has executed an agreement of sale dated 23.12.2005 agreeing to sell the suit schedule property for consideration at the rate of Rs.1,000/- per square foot and received an advance amount of Rs.2-00 lakhs?
5. Whether the plaintiff proves that he has always been ready and willing to perform his part of contract?13 OS.No.1904 of 2007
6. Whether the defendant No.2 to 4 prove that late Govinda Swamy during his life time had sold the suit schedule property in favour of one Smt. Bhagyamma under a registered sale deed dated 4.5.2006?
7. Whether the plaintiff is entitled for the relief of specific performance of contract?
8. What decree or order?
5. In order to prove the case of plaintiff's case, the plaintiff himself examined as P.W.1 and got marked Ex.P.1 to P.16. On behalf of defendant, there is no oral and documentary evidence marked.
6. Heard arguments on plaintiffs side.
7. My answers to the above issues are as follows:-
Issue No.1:` In the negative
Issue No.2: In the negative
Issue No.3: In the affirmative
Issue No.4: In the negative
Issue No.5: In the negative
Issue No.6: In the affirmative
Issue No.7: In the negative;
Issue No.8: As per final order for the following
reasons:
14 OS.No.1904 of 2007
REASONS
8. Issue No.1 to 5: All these issues are interlinked
with each other. Hence, I answer all these issues in
common in order to avoid repetition of facts.
The Present suit is filed by the plaintiff for the relief of specific performance of contract on the ground that late Govindaswamy has executed an agreement of sale in favour of 1st defendant and in turn the 1st defendant has executed an agreement of sale in favour of plaintiff, agreeing to sell the suit schedule property in favour of the plaintiff for consideration of Rs.1,000/- per square feet on 23.12.2005 and received advance amount of Rs.2,00,000/- and remaining amount of Rs.3,00,000/- to be paid in the 1st week of March 2006. Remaining Rs.1,00,000/- has to be paid within 6 months from the date of agreement from 23.12.2005 and over all transaction has to be completed within six months from the date of agreement. Thereafter, the defendants failed to perform their part of contract and hence, the present suit.
In the present case, initially the defendant No.2 to 5 appeared and filed their written statement denying all the contents of plaint allegations specifically and further contended that late Govindaswamy during his life time has cancelled the GPSA in favour of 1st defendant by issuing notice and executed a regular sale deed in favour of one 15 OS.No.1904 of 2007 Bhagyamma on 4.5.2006 and Govindaswamy died on 22.6.2006.
Plaintiff in support of his case got himself examined as P.W.1 and got marked Ex.P.1 to P.16. This witness is not cross-examined by the defendants counsel and defendants have not led any evidence in support of their case. From documentary evidence produced by the plaintiff in the present case and contention taken by the defendant No.2 to 4, before the suit was dismissed for default, it is clear that the defendant No.2 to 4 have taken up the contention that the GPA executed by late Govindaswamy in favour of 1st defendant was cancelled and late Govindaswamy during his life time has executed sale deed in favour of Bhagyamma in the year 2006 itself. This fact is brought to the notice of the plaintiff atleast at the time of filing the written statement by the defendant No.2 to 4 in the present case. But inspite of that, the plaintiff has not impeladed the said Bhagyamma in the present case. It is pertinent to note that though the defendants have not led any evidence. Along with written statement, they have produced the documents with list dated 13.3.2008. They have produced copy of registered sale deed dated 4.5.2006 executed by late Govindaswamy in favour of Bhagyamma. It is well settled principle of law that the registration of document is noticed to the entire public in general. Apart from that, the defendants in their written statement have taken up contention that late 16 OS.No.1904 of 2007 Govindaswamy during his life time executed registered sale deed in favour of Bhagyamma. The defendants also contended that late Govindaswamy during his life time has cancelled the registered GPA dated 28.12.1993 by issuing public notice to the defendant No.1 and also by executing the cancellation document. The said document is registered document. The defendants have produced the copy of the said cancellation of GPA document, the same is dated 24.4.2006 and the same was registered on 4.5.2006. Under these circumstances, as on the date of filing the present suit, there was no valid GPA in favour of the 1st defendant alleged to have been executed by late Govindaswamy in favour of the 1st defendant with respect to the suit schedule property. The 1st defendant though appeared in the present suit he has not filed any written statement.
The plaintiff in order to prove the agreement of sale in his favour has examined only himself as P.W.1 and not produced any other evidence to prove the agreement of sale alleged to have been executed by the 1st defendant in favour of the plaintiff. The plaintiff has produced the agreement of sale alleged to have been executed by late Govindaswamy in favour of the 1st defendant dated 29.11.1993. But the said document is not got marked by the plaintiff in the present suit. As per the said agreement of sale, the consideration was agreed at Rs.42,000/- and advance amount of Rs.10,000/- was paid. Ex.P.5 is the certified copy of GPA, 17 OS.No.1904 of 2007 wherein there is no reference of agreement of sale dated 29.11.1993 executed by late Govindaswamy in favour of 1st defendant . There is no evidence to show that the 1st defendant has paid the entire sale consideration to late Govindaswamy under agreement dated 29.11.1993. Unless the 1st defendant has acquired the exclusive title over the suit schedule property, he has no right to execute any agreement of sale in favour of plaintiff. Ex.P.5 is dated 30.12.1993 i.e., subsequent to execution of agreement dated 29.11.1993. But there is no reference of the said agreement in Ex.P.5. In the absence of any evidence to show that the 1st defendant has paid entire sale consideration amount to late Govindaswamy under agreement dated 29.11.1993 and the GPA as per Ex.P.2 is coupled with interest, the 1st defendant has no right to execute any agreement of sale in favour of the plaintiff without the valid consent of late Govindaswamy. Apart from this, defendant No.2 to 4 in their written statement have contended that late Govindaswamy has cancelled the GPA before filing the present suit. In that regard, he has produced the copy of the registered deed in that regard and also produced the copy of notice and the public notice issued by late Govindaswamy canceling the Ex.P.5. Inspite of the said contention taken by the defendant No.2 to 4 and also the documentary evidence produced by the defendant No.2 to 4 in that regard, the plaintiff has not made any attempts to implead the said Bhagyamma, the purchaser of 18 OS.No.1904 of 2007 suit schedule property in the present suit. On the basis of the documentary evidence produced by the defendant No.2 to 4 in the present case, this court has rejected I.A.No.1 filed by the plaintiff along with this suit. While disposing of I.A.No.1, this court has already observed that with respect to the documentary evidence produced by the 1st defendant in the present case, this court has referred the registered sale deed executed by late Govindaswamy in favour of Bhgyamma on 4.5.2006 and also referred the cancellation of the GPA executed by late Govindaswamy in favour of the 1st defendant. Even thereafter also, the plaintiff has not made any attempts to impelad the said Bhagyamma in the present case. Hence, the suit is bad for non joinder of necessary parties. In view of the registered document of cancellation of GPA executed by late Govindaswamy in favour of 1st defendant prior to filing the present suit itself, the plaintiff cannot claim that there was a valid registered GPA in favour of the 1st defendant to execute agreement of sale with respect to suit schedule property in favour of plaintiff. As already stated above, there is no evidence to show that plaintiff has paid entire sale consideration amount to the 1st defendant under unmarked agreement of sale referred above, the 1st defendant has no marketable title to the suit schedule property. It is well settled principle of law that immovable property can be can be transferred or conveyed only by deed of conveyance i.e., sale deed duly stamped and registered as required by law . In the present case, there 19 OS.No.1904 of 2007 is no conveyance with respect to the suit schedule property in favour of the 1st defendant and hence, the 1st defendant is not having marketable title to the suit schedule property to execute any agreement of sale in favour of the plaintiff. The defendants though filed written statement prior to the suit was dismissed for default and produced the documents to show that late Govindaswamy has cancelled the GPA dated 28.12.1939 by issuing legal notice dated 22.3.2006 and public notice in Sanjevani dated 31.3.2006, they have remained absent after the suit was restored. Hence, there is no evidence on behalf of defendant No.2 to 4 to disprove the case of the plaintiff in the present case. However, the documentary evidence produced by the defendant No.2 to 4 has already been considered by this court while disposing of I.A.No.1. In the present case with respect to documentary evidence produced by the defendants in the present case, the plaintiff has not stated or explained anything against those documents. Under these circumstances, the documentary evidence produced by the defendant No2. to 4 are remained unchallenged. It is true that unless the documentary evidence produced by the defendant No.2 to 4 are marked and evidence is led , the said documents cannot be considered. However, cancellation of GPA and the execution of sale deed by late Govindaswamy in favour of Bhagyamma during his life time are the registered documents. As already stated above, the registration of documents is noticed to the public in general. The evidence 20 OS.No.1904 of 2007 produced by the defendant No. 2 to 4 can be considered only to that limited extent. Under these circumstances, as on the date of filing the present suit, already the suit schedule property was sold by late Govindaswamy during his life time in favour of Bhagyamma and the said Bhagyamma has not been impleaded as party in the present suit. The documentary evidence produced by the defendant No.2 to 4 canceling the GPA as per Ex.P.5 by a registered document discloses that the 1st defendant has lawfully cancelled the GPA as per Ex.P.5 executed by late Govindaswamy in favour of 1st defendant.
As far as the agreement of sale alleged to have been executed by the 1st defendant in favour of the plaintiff is concerned, the same is dated 23.12.2005. The said document is marked as Ex.P.1 in the present case. The 1st defendant has executed the said document not as a GPAS of late Govindaswamy, but she in her own name executed the agreement of sale as per Ex.P.1. As already stated above, the 1st defendant was not having the absolute title over the suit schedule property, she cannot execute the agreement of sale in the form of Ex.P.1. As on the date of Ex.P.1, the 1st defendant was not the exclusive owner of the suit schedule property. Under these circumstances, the Ex.P.1 is not a valid document. Though there is a reference of GPA executed by late Govindaswamy in favour of 1st defendant in page No.3 of Ex.P.1. The document as per Ex.P.1 is 21 OS.No.1904 of 2007 executed by 1st defendant in her own name, but not a the GPA holder of the Govindaswamy. The plaintiff in the present case has court that he has paid Rs.2,00,000/- on the date of Ex.P.1 to the 1st defendant . In support of the said contention, the plaintiff has not produced any evidence. Ss per the contents of Ex.P.1, out of the remaining amount of Rs.3,00,000/- has to be paid within 1st week of March 2006. There is no pleadings or evidence to the effect that the plaintiff has paid the said sum of Rs.3,00,000/- to the 1st defendant in the 1st week of March 2006. On perusal of Ex.P.1, no specific consideration amount is mentioned. It is only stated that the consideration fixed is Rs.1,000/- per square feet and already it was stated in Ex.P.1 that the 1st defendant has applied for the additional property to BDA, which is going to be granted in favour of 1st defendant, but no such evidence is produced by the plaintiff in support of the said contention. As per Ex.P.1, the transaction should have been completed within six months from the date of Ex.P.1. But in the present case, there is no evidence to show that within six months, the plaintiff has made any attempts to complete the sale transaction as per Ex.P.1. The present suit is filed by the plaintiff only after late Govindaswamy has executed a registered sale deed in favour of Bhagyamma and the Govindaswamy has cancelled the GPA executed by him in favour of 1st defendant. Under these circumstances, as on the date of filing the present suit, the 1st defendant was not having any right to execute 22 OS.No.1904 of 2007 agreement of sale as per Ex.P.1 in favour of the plaintiff. The GPA as per Ex.P.5 was also cancelled as on the date of filing the present suit and hence, the 1st defendant was not having valid GPA dated 28.12.1993 in his favour in respect of the suit schedule property. In the present case also, the plaintiff has not produced any evidence to show that he was and is always ready and willing to perform his part of contract by paying the balance sale consideration amount to the 1st defendant as per Ex.P.1 to get execute the sale deed in pursuance of Ex.P.1. There is no evidence to show that plaintiff was having sufficient funds to pay the balance sale consideration to the 1st defendant. In the absence of any evidence in that regard, it is clear that the plaintiff has not complied the mandatory provisions of Sec.16(c) of Specific Relief Act, since the 1st defendant was not the exclusive owner of the suit schedule property as on the date of Ex.P.1, he was not having any right to execute agreement of sale with respect to suit schedule property in favour of plaintiff as if she is the exclusive owner in her own name. As already stated above, the late Govindaswamy had already cancelled the GPA dated 24.4.2006 before filing the present suit itself. Considering all these evidence produced by the plaintiff and defendant No.2 to 4 in the present case, it is clear that as on the date of filing the present suit, there was no valid GPA executed by late Govindaswamy in favour of 1st defendant and the 1st defendant was not having marketable title to execute agreement of sale as per Ex.P.1 in favour of 23 OS.No.1904 of 2007 plaintiff. The defendant No.2 to 4 have produced cogent evidence to show that the GPA dated 28.12.1993 was duly cancelled by late Govindaswamy during his life time itself. It is also pertinent to note that Govindaswamy died prior to filing the present suit itself. Plaintiff has not pleaded the date of death of Govindaswamy in the present case. Further defendant No.2 to 4 have contended that late Govindaswamy died on 22.6.2006. This fact is not disputed by the plaintiff in his evidence. No evidence is produced by the plaintiff to show that as on the date of filing the present suit, Govindaswamy was alive. In the absence of any evidence and pleadings in that regard, the contention taken by the defendant No.2 to 4 in their written statement to the effect that Govindaswamy died on 22.6.2006 has to be accepted. Since Govindaswamy died on 22.6.2006, the GPA alleged to have been executed by late Govindaswamy in favour of the 1st defendant as per Ex.P.5 as no valid document in the eye of law. When the executant of GPA as per Ex.P.5 was no more on the date of filing the present suit, the 1st defendant has no right to execute sale deed in favour of the plaintiff with respect to the suit schedule property. In view of the above discussion, this court is of the opinion that the plaintiff has failed to prove that as on the date of filing the present suit, 1st defendant was having valid GPA in his favour to execute Ex.P.1 in favour of the plaintiff. The 1st defendant has not having marketable title to the suit schedule property as on the date of filing the present suit.
24 OS.No.1904 of 2007Defendant No.2 to 4 though not produced any evidence on the basis of the registered document produced by the defendant No.2 to 4 and also in the absence of any evidence to disprove the said document, this court is of the opinion that the defendant No.2 to 4 have validly cancelled GPA dated 28.12.1993 by issuing legal notice and public notice and already by registered document. The plaintiff except producing his own evidence, he has not produced any other evidence to prove Ex.P.1 in the present case. Even the vendor of the plaintiff i.e., the 1st defendant has not filed any written statement nor supported the case of the plaintiff. Hence, the plaintiff has failed to prove that 1st defendant has executed an agreement of sale dated 23.12.2005 , agreeing to sell the suit schedule property for a consideration of Rs.1,000/- per square feet. Under these circumstances, I answer Issue No.1 in negative, Issue No.2 in negative, Issue No.3 in affirmative , Issue No.4 in negative and Issue No.5 in negative.
9. Issue No.6:- Defendant No.2 to 4 in their written statement have contended that late Govindaswamy has sold the suit schedule property in favour of Bhagyamma under registered sale deed dated 4.5.2006. In this regard, the defendants have produced the copy of registered sale deed dated 4.5.2006 executed by late Govindaswamy in favour of Smt.Bhagyamma. As already stated above registration of document is a notice to general public. The 25 OS.No.1904 of 2007 GPA alleged to have been executed by late Govindaswamy in favour of 1st defendant was cancelled by late Govindaswamy by executing the registered document dated 24.4.2006. The sale deed in favour of Smt. Bhagyamma executed on 4.5.2006 is subsequent to the cancellation of GPA in favour of the 1st defendant by executing a registered deed dated24.4.2006 and hence, the sale deed in favour of Smt. Bhagyamma is a valid sale deed. As already stated above, the defendant No.2 to 4 not appeared before this court after the suit is restored under the miscellaneous petition filed by the plaintiff after the suit was dismissed for default. The document produced by the defendant No.2 to 4 have not been marked in the present case. Defendant No.2 to 4 have not led any evidence inspite of that, this court can take judicial note by this court with respect to the contention taken by defendant No.1 to 4 in their written statement and documentary evidence produced by the defendant No.2 to 4 in the present case i.e., the registered sale deed executed in favour of Smt.Bhagyamma on 4.5.2006 and also the cancellation of GPA under registered document dated 24.4.2006. Considering all these evidence, it is clear that late Govindaswamy during his life time sold the suit schedule property in favour of Smt. Bhagyamma under registered sale deed dated 4.5.2006 and the said deed is valid deed. Hence, Issue No.6 is in affirmative.
26 OS.No.1904 of 200710. Issue No.7: In view of my discussions stated above, it is clear that the 1st defendant has no right to execute the agreement of sale in favour of the plaintiff and the said agreement is not a valid document since the 1st defendant himself has not acquired any title over the suit schedule property as held in a decision reported in 2012(1) SCC 656, wherein the sale by under GPA is not a valid sale deed. Under GPA, the 1st defendant has not acquired any title over the suit schedule property. There is no reference of agreement of sale alleged to have been executed by Govindaswamy in favour of 1st defendant is referred in the GPA produced by the plaintiff in the present case. As already discussed above, the plaintiff has failed to prove that Govindaswamy has executed a registered GPA dated 28.12.1993 and the same was in force on the date of filing the present suit. Admittedly Govindaswamy died prior to filing the present suit itself. Under these circumstances, the plaintiff is not entitled for the relief of specific performance on the basis of the agreement of sale dated 23.12.2005. Hence, I answer Issue No.7 in negative.
11. Issue No.8: In view of my findings on the above issues and discussions above, I proceed to pass the following:-
27 OS.No.1904 of 2007ORDER The suit of the plaintiff is hereby dismissed. No order as to costs.
Draw decree accordingly.
{Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open court this 30th day of January 2018.} (K.B.PATIL) XI Addl. City Civil Judge Bangalore city.
ANNEXUERE List of witnesses examined for plaintiff:-
P.W.1 Sri.M.C.Sundar List of documents exhibited for plaintiff:-
Ex.P.1 Agreement of sale dated 23.12.2005 P.1(a) Signature of defendant No.1 P.1( b) Signature of plaintiff Ex.P.2: Copy of notice Ex.P.3: UCP Ex.P.4: Postal A.D Ex.P.5: Certified copy of GPA Ex.P.6: Possession certificate issued by BDA Ex.P.7: Katha extract Ex.P.8: Katha certificate Ex.P.9 & 10: Tax paid receipts Ex.P.11: Tax challan 28 OS.No.1904 of 2007 Ex.P.12: Tax assessment extract Ex.P.13: Encumbrance certificate Ex.P.14 & P.15: Letters written to BDA Ex.P.16: Copy of affidavit List of witnesses examined for defendant/s: ...Nil...
List of documents exhibited for defendant/s: ...Nil...
XI ADDL.CITY CIVIL JUDGE, BANGALORE CITY