Bangalore District Court
Sri Venkataswamy vs Sri.V. Lakshmana on 31 March, 2021
1
O.S.NO.483/2010
C.R.P.67 Govt. of Karnataka
Form No.9(Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XII ADDL. CITY CIVIL JUDGE, AT
BENGALURU
Dated this the 31st day of March, 2021.
PRESENT: SRI. SATHISHA L.P., B.A.,LL.B.,
XII ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH.No.27), BENGALURU
O.S.NO.483/2010
Plaintiffs: Sri Venkataswamy-
since dead his LR's
1(a) Smt Sharadamma,
aged about 63 years,
w/o late Venkataswamy,
resideing at B.Chennasandra village,
Kalyana nagar post,
Bangalore.
1(b) Sri Nataraj
Aged about 43 years,
s/o late N.Venkataswamy,
residing at B.Chennasandra village,
Kalyana nagar post,
Bangalore.
1(c) Smt Shyala
Aged about 47 years,
D/o Late N.Venkataswamy ,
Residing at H.Mettur village,
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O.S.NO.483/2010
Bethamangala hobli,
Bangarapet taluk,
Kolar dist.
1(d) Smt Geetha
Aged about 41 years,
D/o late N.Venkataswamy,
Residing at Harahalli,
Nelavaagilu post, Nandagudi hobli,
Hoskote taluk,
Bangalore rural district.
1(e) Smt Reshma
Aged about 39 years,
D/o late N.Venkataswamy,
Residing at No.24,
Sangollirayanna road,
Bhuvaneshnagar,
T.Dasarahalli,
Bangalore 57.
(By M.D.A. Advocate)
Vs
Defendant:- 1. Sri.V. Lakshmana
aged about 54 years,
S/o Venkateshamappa,
residing at No.344,
A.Krishnareddy layout,
R.M.Nagar,
Bangalore- 560016.
And also at
Sri V. Lakhshmana
Aged about 54 years,
S/o Venkateshamappa,
Residing at B.Channasandra village,
Kalyananagar post,
Bangalore- 560 043.
(By M.J.R. Advocate)
3
O.S.NO.483/2010
Date of Institution of the suit : 22-01-2010
Nature of the suit : Declaration & Injunction
Date of commencement of : 06-03-2015
recording of the evidence
Date on which the Judgment : 31-03-2021
was pronounced
Total Duration Years Months Days
11 02 09
(SATHISHA L.P.)
XII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
The plaintiff is before the court for the relief of declaration to declare the sale deed dated 10/8/1992 as null and void and consequently cancel the said sale deed and put the plaintiffs in the possession of the suit schedule property and declare the plaintiff as absolute owner of the suit property, and for permanent injunction restraining the defendants from alienating the suit schedule property to any other person or persons and to grant such other reliefs.
2. Brief facts of the plaintiff's case is that, the plaintiff is the son of late Muniyamma, who was the owner 4 O.S.NO.483/2010 of the property bearing Sy.No.69/1, measuring an extent of 2 acres 3 guntas, situated at Banasawadi village, K.R.Puram hobli, Bangalore east taluk.
3. On 26/7/1984 there was gazette notification for acquiring the certain properties for formation of residential layout by the Bangalore Development Authority, Sy.No.69/1 was also one of the said property.
4. Late Muniyamma, the mother of the plaintiff approached the several authorities with the intention to get her property de-notified from the acquisition proceedings but was not successful being poor, ignorant, illiterate, widow without neither money nor influence.
5. Taking advantage of the situation and also the innocence of the said Muniyamma, Sri. Sathyanarayana, Nanjundegowda, and few others having entered into conspiracy approached her and offered assistance to get the land de-notified, in furtherance of the same the plaintiff's mother hand also paid a sum of Rs. 25,000/- by incurring huge debts. Further the said person also obtained signature of the Smt. Muniyamma on certain blank paper on 5 O.S.NO.483/2010 the guise that the same were required to enable them to approach the government officials to get the property de- notified.
6. Said Sathyanarayana, Nanjudegowda and others in furtherance of their conspiracy had put up a small sheds over the property and having obtained the consent of the plaintiff's mother Smt. Muniyamma by inducing her that the same was being done to give impression that the property was developed as such same would be let off from acquisition by the Bangalore Development Authority.
7. With the consent of the plaintiff's mother the said persons put up construction and obtained the electricity connection by showing the property as sites and that the same could be made use for getting land de-notified.
8. That claims and objections were also field before the land acquisition officer by the persons related to Sathyanarayana and Nanjundegowda claiming to be residing in the said property having purchased the same, like wise certain persons were made to reside on the property. Late Muniyamma was informed that they were 6 O.S.NO.483/2010 residing in the property for consumption of land acquisition officer and promised that they would vacate property after formalities of the acquisition were completed. Believing the false promise, assurance and representation made by Late Muniyamma permitted them to occupy the property. One among the said persons is the defendant herein. The defendant thus become a permissible occupant of portion of Sy.No.69/1, measuring 30 x 40 feet which is a portion of the Sy.No.69/1, which is the suit schedule property.
9. The plaintiffs mother died on 16/2/1992. The plaintiff who was aware of the entire transaction permitted the defendant to continue in the possession of the schedule property as the acquisition proceedings were yet to be completed.
10. That the said property was not de-notified but portion of the said property was utilized for formation of ring road while rest of the portion remanded with the plaintiff's mother as the same was utilized by the BDA, plaintiff's mother continued to be in actual physical possession of the property.
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O.S.NO.483/2010
11. That in the year 1998-99 after formation of the ring road were completed wherein a portion of Sy.No.69/1 was lost remaining portion continued in the name of the late Muniyamma.
12. After confirming of the completion of the acquisition proceedings the plaintiff requested the defendant to vacate schedule property. The defendant requested permission to continue in possession for a period of three years to make necessary arrangement elsewhere and vacate the suit schedule property but the defendant instead of taking steps to vacate the schedule property clandestinely put up the construction.
13. When the said act of the defendant was questioned by the plaintiff the defendant claimed to be the owner of the suit schedule property as such declined to vacate the suit schedule property.
14. The plaintiff made enquiries and learnt that said Satyanarayana and Nanjundegowda and others who had taken signature on blank papers had misused the same and fabricated forged and concocted documents. The plaintiff 8 O.S.NO.483/2010 was advised to file suit for possession by paying court fee as the plaintiff did not have adequate financial resources he could not file the suit earlier.
15. Neither the plaintiff nor his mother had executed any legal valid document that would result in transferring of the property, after the death of Muniyamma plaintiff obtained the copies of the RTC and Mutation, it is evident from the said documents that legally the possession remains with the plaintiff and there has been no valid transaction transferring the suit schedule property as such any document alleged to have been executed do not confer any right, title and interest to the defendant on the suit schedule property.
16. Plaintiff recently learnt that the defendant has got sale deed dated 10/8/1992 in his favor, it clear from the said document that the defendant has got the sale deed executed in hes favor clandestinely without the knowledge of either the plaintiff or his mother based on the fabricated document. The said sale deed is void ab-initio as the person who has executed the same does not have any right, title or 9 O.S.NO.483/2010 interest on the suit schedule property more so it is clearly evident from the sale deed that executed a registered sale deed in favor the defendant herein and it is crystal clear from the transaction that no consideration is paid for the alleged sale, further the said sale deed was executed after the death of Smt. Muniyamma who is alleged to executed the GPA.
17. That the very sale deed registered on 10/8/1992 is fabricated and does not transfer any title as such any other documents obtained based on the alleged sale deed is also not valid. Though the alleged sale deed was registered back on 10/8/1992 the same is not seen in the RTC and also encumbrances as such the plaintiff did not have knowledge of the same.
18. The defendant who was in permissible occupation is claiming ownership of the property as such the plaintiff got issued legal notice dated 18/11/2009 withdrawing the permission granted to occupy the suit schedule property and calling upon the defendant to quit and deliver the vacant possession of the suit schedule 10 O.S.NO.483/2010 property. The defendant who received the legal notice neither replied nor complied with the demand made in the said notice. The defendant having received the legal notice is making hectic efforts to sell the suit schedule property. The plaintiff also learnt that somebody is intending to purchase the suit schedule property left with no other alternative the plaintiff has filed the present suit seeking declaration and cancellation of the sale deed dated 10-08-1992. With the above facts the plaintiff has sought for above said reliefs.
19. The defendant who has appeared before the court in pursuance of the summons has filed the written statement by denying and disputing the plaint averments and he has denied that the plaintiff is the son of Late Muniyamma and it is admitted that the Smt.Muniyamma was the owner of the property bearing Sy.No. 69/1 situated at Banasavadi village, K.R.Puram, Bangalore East Taluk and he has contended that the defendant was never in permissive possession of the suit schedule property at any point of time and the defendant was put in possession of 11 O.S.NO.483/2010 the suit schedule property by virtue of the registered sale deed dated 10-08-1992 executed by GPA holder Sri.M.B.Nanjude Gowda S/o Bore Gowda, of Smt.Muniyamma W/o late Nanjundappa. Hence since from 1992 the defendant is in possession of the suit schedule property as lawful owner. The defendant has never seen the plaintiff and there is no any relationship whatsoever between the plaintiff and defendant. The defendant is in lawful possession and enjoyment of the suit property by virtue of the registered sale deed hence the plaintiff has never requested the defendant to vacate or the defendant never sought for permission or time to vacate. The defendant after obtaining the sanction plan from the concerned authorities has put up the construction and he has residing their. The plaintiff never questioned the defendant regarding his possession and the defendant has never seen plaintiff. Smt.Muniyamma has executed GPA in favour of the vendor of the defendant and has also executed affidavit in his favour, to which the plaintiff is a attesting witness. Hence plaintiff and Muniyamma have executed valid documents so 12 O.S.NO.483/2010 as to enable the GPA holder to execute the registered sale deed in favour of the defendant. The plaintiff is very well aware of the sale deed dated 10-08-1992 executed in favour of the defendant by the GPA holder of Smt.Muniyamma and the plaintiff is also very well aware of the construction of the residential house by the defendant. The defendant after purchasing the site in question is paying the tax regularly to the concerned authorities. The defendant or the vendor of the defendant are not at all aware of the death of Smt.Muniyamma as the same was not notified to the vendor of the defendant or no public notice has been issued to that effect. Hence the defendant has made the payment for purchase of the site in good faith in pursuance of power of attorney and without the knowledge of the death of the donor. Hence the entire acts done by the defendant are in good faith and the interest of the defendant is to be protected. The defendant has not fabricated any document much less the sale deed dated 10-08-1992. That as the nature of the land has changed from agriculture to non agriculture and the same has not 13 O.S.NO.483/2010 been entered in the RTC. The plaintiff has never issued any legal notice to the defendant. That as the defendant is in lawful possession of the property by virtue of a registered sale deed, the question of the plaintiff withdrawing the permission do not arise at all, as no permission was granted earlier. The defendant is in possession and enjoyment of the suit schedule property since from 1992 and has put up construction in the year 2002 which is well within the knowledge of the plaintiff. The plaintiff is not at all entitle for any relief. There is no cause of action as alleged in para 20 of the plaint. The cause of action arose on 10-08-1992 and April 2002 as on the date of defendant started putting up construction. The plaintiff knowing fully well has not taken any steps to file any suit. Hence the suit is bared by limitation. Hence, suit is liable to be dismissed. Further he has also contended that, the suit of the plaintiff is not properly valued and the court fee paid insufficient. With these contentions seeks to dismiss the suit.
20. On the basis of the above pleadings the following re-casted issues are framed which is as under; 14
O.S.NO.483/2010
1. Whether the plaintiff proves his absolute ownership over the suit schedule property?
2. Whether the plaintiff proves that the defendant is in permissive possession of the suit schedule property?
3. Whether the plaintiff proves that the registered sale deed dated 10-08-1992 alleged to have been executed in respect of the suit schedule property by alleged General Power of Attorney holder of late Smt.Muniyamma in favour of defendant being null and void is liable to be canceled?
4. Whether the plaintiff is entitled to delivery of possession of the suit schedule property from the defendant?
5. Whether the plaintiff is entitled to relief of permanent injunction as sought against the defendant?
6. What Order or Decree?
21. To substantiate the plaint averments plaintiff No.1(b) examined as P.W.1 and Ex.P.1 to 10 are marked. Ex.P.1 is GPA dated 22-04-2014, Ex.P.2 is certified copy of the sale deed dated 10-08-1992, Ex.P.3 to 5 are RTC's, Ex.P.6 is MR, Ex.P.7 is death certificate of Muniyamma, Ex.P.8 is office copy of the legal notice dated 18-11-2009, 15 O.S.NO.483/2010 Ex.P.8(a) & (b) are RPAD receipts, Ex.P.8(c) is postal acknowledgment, Ex.P.8(d) is returned RPAD cover, Ex.P.9 & 10 are MR.
22. From the defendant side the defendant himself examined as D.W.1. and he has filed chief examination affidavit by reiterating the defense and got marked Ex.D.1 to 25. Ex.D.1 is certified copy of the sale deed dated 10-08- 1992, Ex.D.2 & 3 are khatha certificate, Ex.D.4 & 5 are khatha extract. Ex.D.6 & 7 are EC's. Ex.D.8 license, Ex.D.8(a) is blue print, Ex.D.9 to 22 are tax paid receipts, Ex.D.23 bank statement, Ex.D.24 & 25 are certified copies of the judgment and decree in O.S.No.6436/2004. Ex.D.11 & 12 GPA dated 01-08-1985 and affidavit dated 01-08-1995 are marked as Ex.D.11 & 12.
23. Heard the arguments, perused the records;
24. Having heard the arguments perused the records, my answer to the above issues are as under;
i) Issue No.1:- In the Negative
ii) Issue No.2:- In the Negative
iii) Issue No.3:- In the Negative
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O.S.NO.483/2010
iv) Issue No.4:- In the Negative
v) Issue No.5:- In the Negative
vi) Issue No.6:- as per final order
for the following;
REASONS
25. Issue No.1 and 3:- The plaintiff has filed the present suit against the defendant for the relief of declaration to declare the sale deed dated 10-08-1992 is null and void and consequently cancel the sale deed and to declare the plaintiff as the absolute owner of the suit property and to put the plaintiff in possession of the suit schedule property and such other relief.
26. Since the plaintiff is seeking for declaration of his ownership over the suit property and possession of the suit property, he has to discharge his burden under Section 110 of Evidence Act, which reads as under;-
Sec.110, burden of proof as to ownership;- when the question is whether any person is owner of anything of which he is shown to be in possession the burden of proving that he's 17 O.S.NO.483/2010 not the owner is on the person who affirms that he is not the owner.
27. Here in this case also the defendant is in possession of the property and the plaintiff claims that he is the owner of the suit property and seeks for possession of the same, it means that the plaintiff is denying the title of the defendant and thereby wants to recover the possession of the suit property. Under this situation the plaintiff has to discharge his burden under Section 110 of the evidence act by proving that defendant is not the owner of the suit property.
28. Further I would like to rely upon the decision rendered by the High Court of Karnataka reported in 2018(3) KCCR 2175, in the case of Shri Bharatesh balasaheb Kuppanatte and another V/s Shri Noorbabasab Peeraso Mantookar, since dead by LR's, wherein it is held that, C. PRACTICE AND PROCEDUE- pleading and Proof, the plaintiff has to win the or lose the 18 O.S.NO.483/2010 case on his own, he cannot take the weakness of the defendant and make his case strong. By considering the Section 110 of Evidence Act and the above said authority, the plaintiff must establish that he is the owner of the suit property. In this background let me consider the evidence of the plaintiff adduced in support of his case.
29. The definite contention of the plaintiff before the court is that Survey number 69/1 of Banaswadi village was originally belonged one Smt. Muniyamma, and the plaintiff claims that he is the son of said Muniyamma. It is further contended that on 26-07-1984 there was a Gazette notification for acquiring certain properties for formation of residential layout by the Bangalore development authority and the survey number 69/1 of Banaswadi village was also one of the property which was to be acquired which was belonged to said Muniyamma. Said Muniyamma approached several authorities to de-notify her land from the acquisition proceedings but being the poor ignorant and illiterate widow without neither having money nor influence she was not 19 O.S.NO.483/2010 successful in getting de-notify the land. At that juncture one Mr. Satyanarayana, Nanjundegowda and others approached the Smt Muniyamma assuring to de-notify the land and obtained the signed some blank paper from the Muniyamma and with the consent of Muniymma allowed the some persons to reside in the said property by constructing the small sheds. And one of the said person is defendant and he is in the permissive possession of the suit property and after the process the defendant was requested to vacate the suit property by that time the defendant claimed that he is the owner of the suit property. On enquiry it is came to his notice that, by misusing the blank papers, the said Nanjundegowda and others have created the documents and on that basis the suit property has been sold. And it is also contented that plaintiff nor his mother Smt. Muniyamma have sold the property to the defendants and hence seeks to decree the suit.
30. On the other hand the defendant who has appeared before the court has taken contention that he is the owner of the suit property, which has been validly 20 O.S.NO.483/2010 transferred to him by smt Muniyamma, through her GPA holder Sri Nanjundegowda under a registered sale deed dated 10/8/1992 and he is in possession of the same and he further denied that the plaintiff is the son of Smt. Muniyamma.
31. Suit is filed on 22/01/2010 by original plaintiff Sri. Venkataswamy claiming to the son of Muniyamma, and original plaintiff is died on 2/8/2019 and his legal heirs have been brought on record as legal heirs. One Mr. Nataraj.V. was examined as P.W.1 on 6/3/2015 on the basis of the GPA dated 22/04/2014 executed by the original plaintiff. later on legal heirs were brought on record and one among them is the PW1. Though it is disputed that the Venkataswamy is the son Muniyamma, the plaintiffs have not produced any document before the court to substantiate the contention that the Venkataswamy is the son of the Muniyamma.
32. The entire theme of the case is that, the suit property is portion of Sy.No.69/1 of Banaswadi, which was sold on the basis of the created GPA and Affidavit dated 21 O.S.NO.483/2010 1/8/1985 after the death of Muniyamma and hence no title is passed to the defendant.
33. The plaintiff has produced the Ex.P.2 which is the certified copy of the sale deed dated 10/8/1992, which is executed by the Muniyamma thorough her GPA holder M.B.Najundegowda, on perusal of the Ex.P.2 is clear that the suit property is sold by the M.B.Nanjundegowda as GPA holder of the Muniyamma. The main contention of the plaintiff is that said GPA is a created one and sale deed dated 10.8.1992 is executed after the death of Muniyamma 16/02/1992. The plaintiff has not taken any pain in producing copy of the said GPA and affidavit but the defendant has produced the said GPA and affidavit at Ex P.11 and 12. (due to mistake Ex.P.11 and 12 given even to Tax paid receipts also).
34. On careful examination of the Ex.D 11 and 12, which are original GPA and Affidavit, it is clear these two documents are the basis for the very dispute.
35. Ex.D.11 is the GPA dated 1/8/1985 executed by Smt Muniyamma, the signature (LTM) is not disputed by the 22 O.S.NO.483/2010 plaintiff, but it is contended that the said LTM was obtained to the blank paper by the Sathyanarayana and Nanjundegowda and others on the guise of preventing the Sy No.69/1 of Banasawadi village from acquisition. Ex.D.11 GPA is notarized as required under the law, when the same is notarized then the court has to draw the presumption as required under section 85 of the Indian evidence act. Which reads as under;-
Sec.85, Presumption as to powers of attorney.- the court shall presume every document purporting to be power of attorney and to have been executed before and authenticated by a notary public, or any court, judge, magistrate, Indian consul or vice-consul or representative of the central government, was so executed and authenticated.
When the Section 85 of Evidence Act authorizes the court to draw the presumption, this court having no other alternative but draw the presumption regarding the due 23 O.S.NO.483/2010 execution of the GPA ie Ex.D.11 in the absence of the rebuttal evidence, because the plaintiff has not lead any evidence to rebut the said presumption.
36. Now let me consider the content of the said GPA, the same is executed by the Smt Muniyamma on 1/8/1985 in favour of M.B.Nanjundegowda, authorizing him to deal with the site No.43 and 44 formed in Sy No.69/1 of Banasawadi village, and it is also mentioned in the said GPA, that she will never cancel the said GPA. From perusal of the content of the said GPA, it is very much clear that in the Sy No.69/1 sites were formed during 1985 itself, and out of the said sites site No.43 and 44 were given to M.B.Nanjundegowda to deal with it.
37. On the same day another affidavit is also executed by said Smt Muniyamma, wherein it categorically mentioned that site No.43 and 44 have given to the said M.B.Nanjundegowda on the basis of the GPA, and she has received the full consideration of Rs 7000/- of the said sites. Very interestingly said affidavit is also notarized and the same is signed by both plaintiff and his mother Smt 24 O.S.NO.483/2010 Muniyamma. The arguments of the plaintiff is that the signature of the Muniyamma was obtained on the blank papers and later on same were created, but plaintiff never whispered anything about his signature over the Ex.D.12. for the sake of convenience the contents of the affidavit it extracted here which reads as under;-
ಪಪ್ರಮಮಾಣ ಪತಪ್ರ ಬಬಬೆಂಗಳಳೂರರು ದಕಕ್ಷಿಣ ತತಾಲಳೂಲ್ಲೂಕರು, ಕಕೃಷಷ್ಣರತಾಜಪಪುರ ಹಬಳೂಹೋಬಳ, ಬತಾಣಸವತಾಡ ದತಾಖಲಬ, ಚನನ್ನಸಬೆಂದದ್ರ ಗತಾದ್ರಮದಲಲ್ಲೂ ವತಾಸವತಾಗಿರರುವ, ಲಬಹೋಟಟ್ ನಬೆಂಜರುಬೆಂಡಪಪ್ಪನವರ ಮಗ ಸರುಮತಾರರು 40 ವಷರ್ಷ ವಯಸರುಸ್ಸುಳಳ್ಳ ವಬಬೆಂಕಟಸತಾಸ್ವಾಮಿ ಆದ ನತಾನರು ಕಬಳಕಬೆಂಡಬೆಂತಬ ಪದ್ರಮತಾಣ ಮತಾಡ ಹಬಹೋಳರುವಪುದಬಹೋನಬಬೆಂದರಬ, ಅದತಾಗಿ ನನನ್ನ ಅಧಿಕತಾರ ಮತರುತ್ತು ಹಕರುಕ್ಕುದತಾರಿಕಬಗಬ ಒಳಪಟಟ್ಟಿರರುವ ಡಟಬಳೂಹೋ ಚನನ್ನಸಬೆಂದದ್ರ ಗತಾದ್ರಮದ ಸವಬರ್ಷ ನಬೆಂಬರಟ್ 69/1 ನಬಹೋ ನಬೆಂಬರಟ್ ನಲಲ್ಲೂ ವಬೆಂಗಡಸಿರರುವ ಸಬಸೈಟಟ್ ಗಳ ಪಬಸೈಕ 43 ಮತರುತ್ತು 44 ನಬಹೋ ನಬೆಂಬರರುಗಳರುಳಳ್ಳ ಪಪೂವರ್ಷ-ಪಶಶ್ಚಿಮ 40 ಅಡ ಮತರುತ್ತು ಉತತ್ತುರ-ದಕಕ್ಷಿಣ 60 ಅಡಗಳರುಳಳ್ಳ ಖತಾಲ ಸಬಸೈಟರುಗಳನರುನ್ನ ನನನ್ನ ದರದರುಗತಾಗಿ ಈ ದಿನ ಇದಬಹೋ ಬಬಬೆಂಗಳಳೂರರು ದಕಕ್ಷಿಣ ತತಾಲಳೂಲ್ಲೂಕರು, ಕಕೃಷಷ್ಣರತಾಜಪಪುರದ ಹಬಳೂಹೋಬಳ, ದಳೂವತಾರ್ಷಣ ನಗರ ಪಹೋಸಟ್ಟ್ಟಿ, ವಜಿನತಾಪಪುರ, ಎಫಟ್. ಸಿ. ಐ. ಎದರುರರು 128 ನಬಹೋ ನಬೆಂಬರರು ಮನಬಯಲಲ್ಲೂ ವತಾಸವರರುವ ಬಬಳೂಹೋರಬಹೋಗಗೌಡರ ಮಗ ಶದ್ರಹೋ ಎಬೆಂ.ಬ. ನಬೆಂಜರುಬೆಂಡಬಹೋಗಗೌಡ ಎಬೆಂಬರುವರಿಗಬ ರಳೂ.7,000/ (ಏಳರು ಸತಾವರ) ಗಳಗಬ ಶರುದದ್ದ ಕದ್ರಯಮತಾಡರರುತಬತ್ತುಹೋನಬ. ಕದ್ರಯದ ಹಣವನರುನ್ನ ಪಪೂತತಾರ್ಷ ಸದರಿ ಎಬೆಂ.ಬ.ನಬೆಂಜರುಬೆಂಡಬಗಗೌಡ ಆದ ನಿಮಿಮಬೆಂದ 25 O.S.NO.483/2010 ಬಬಹೋಬತಾಕಯತಾಗಿ ಸತಾಕಕ್ಷಿಗಳ ಮೊಖತ್ತು ಪಡಬದಿರರುತಬತ್ತುಹೋನಬ. ಇನಬನ್ನಹೋನಳೂ ನಿಮಿಮಬೆಂದ ನನಗಬ ಬತಾಕ ಬರಬಬಹೋಕತಾಗಿಲಲ್ಲೂವತಾದದ್ದರಿಬೆಂದ ಮೆಲಕ್ಕುಬೆಂಡ ಸಸ್ವಾತತ್ತುನರುನ್ನ ಸಹತಾ ಈ ದಿನವಬಹೋ ನಿಮಮ ಸತಾಸ್ವಾಧಿಹೋನಕಬಕ್ಕು ಬಟರುಟ್ಟಿಕಬಳೂಟಟ್ಟಿರರುತಬತ್ತುಹೋನಬ. ಇನರುನ್ನ ಮರುಬೆಂದಬ ಎಬೆಂ.ವ.ನಬೆಂಜರುಬೆಂಡಬಹೋಗಗೌಡ ಆದ ನಿಹೋವಪು ನಿಮಮ ಇಷತಾಟ್ಟಿನರುಸತಾರ ಸದರಿಹೋ ಸಬಸೈಟರುಗಳಲಲ್ಲೂ ಮನಬ ವಗಬಸೈರಬ ಕಟಟ್ಟಿಕಬಳೂಬೆಂಡರು ಅನರುಭವಸಿಕಬಳೂಬೆಂಡರು ಬರರುವಪುದರು. ಈ ಬಗಬಗ್ಗೆ ನನನ್ನ ಮತರುತ್ತು ನನನ್ನ ಉತತ್ತುರ ವತಾರಸರುದತಾರರ ಯತಾವ ವಧವತಾದ ತಬೆಂಟಬ ತಕರತಾರರುಗಳರು ಮತರುತ್ತು ಹಕರುಕ್ಕು ಭತಾಧಧ್ಯತಬಗಳರು ಇರರುವಪುದಿಲಲ್ಲೂ. ಹತಾಲ ಸಕತಾರ್ಷರದವರರು ರಬವನರುಧ್ಯ ಸಬಸೈಟರುಗಳ ರಿಜಿಸಬಟ್ಟಿಸಹೋಷನಟ್ ನಿಲಲ್ಲೂಸಿರರುವ ಪದ್ರಯರುಕತ್ತು ನಿಮಮ ಹಬಸರಿಗಬ ಕದ್ರಯಪತದ್ರ ರಿಜಿಸತಾಟ್ಟಿಸಗಳರು ಆಗದಬಹೋ ಇರರುವಪುದರಿಬೆಂದ ನಮಮ ತತಾಯಿ ಶದ್ರಹೋಮತಿ ಮರುನಿಯಮಮನವರಿಬೆಂದ ನಿಮಮ ಹಬಸರಿಗಬ ನಬಳೂಹೋಟರಿಯಲಲ್ಲೂ ಜಿ.ಪ.ಎ. ಬರಬಸಿಕಬಳೂಟಟ್ಟಿರರುತಬತ್ತುಹೋನಬ. ಸದರಿಹೋ ಜಿ.ಪ.ಎ. ಮಳೂಲಕ ಸಸ್ವಾತತ್ತುನರುನ್ನ ನಿಮಮ ಇಷತಾಟ್ಟಿನರುಸತಾರ ಅನಭವಸರುವಪುದರು. ಮರುಬೆಂದಬ ಸದರಿಹೋ ಜಿ.ಪ.ಎ.ಯನರುನ್ನ ನತಾವಪುಗಳರು ಯತಾವ ಕತಾರಣಕಕ್ಕು ರದರುದ್ದ ಪಡಸರುವಪುದಿಲಲ್ಲೂ . ಮರುಬೆಂದಬ ಸಕತಾರ್ಷರದವರರು ಕದ್ರಯಪತದ್ರ ರಿಜಿಸತಾಟ್ಟಿಸಗಲರು ಅನರುಮತಿ ಕಬಳೂಟಟ್ಟಿ ಕಳೂಡಲಬಹೋ ನಿಹೋವಪು ಬಬೆಂದರು ಕರಬದತಾಗ ನತಾವಪು ಬನಟ್ ತಕರತಾರರು ಇಲಲ್ಲೂದಬ ಬಬೆಂದರು ನಿಮಿಮಬೆಂದ ಬಬಹೋರಬ ಯತಾವ ಪದ್ರತಿಫಲವನರುನ್ನ ಪಡಬಯದಬ ನಿಮಮ ಖಚರುರ್ಷನಿಬೆಂದ ಕದ್ರಯಪತದ್ರ ರಿಜಿಸಟ್ಟಿರಟ್ ಮತಾಡಸಿಕಬಳೂಡಲರು ಬದದ್ದನತಾಗಿರರುತಬತ್ತುಹೋನಬ. ಇದಕಬಕ್ಕು ನತಾನರು ತಪಪ್ಪದಲಲ್ಲೂ ನಿಹೋವಪು ನನನ್ನ ಮೆಹೋಲಬ ಕಬಳೂಹೋಟರ್ಷ ಕದ್ರಮ ಜರಿಗಿಸಿ ಕದ್ರಯ ಪತದ್ರ ರಿಜಿಸಟ್ಟಿರಟ್ ಹಬಳೂಬೆಂದಲರು ಮತರುತ್ತು ಅದರಿಬೆಂದ ನಿಮಗತಾಗಬಹರುದತಾದ ಖಚರುರ್ಷ ವಬಚಶ್ಚಿಗಳನರುನ್ನ ನನಿನ್ನಬೆಂದ ವಸಳೂಲತಾಮಡಕಬಳೂಳಳ್ಳಲರು ಸಹತಾ ನಿಮಗಬ ಅಧಿಕತಾರ ಕಬಳೂಟಟ್ಟಿರರುತಬತ್ತುಹೋನಬ, ಎಬೆಂದರು ಮೆಹೋಲಕ್ಕುಬೆಂಡ ಎಬೆಂ.ಬ. ನಬೆಂಜರುಬೆಂಡಬಹೋಗಗೌಡರವರಿಗಬ ಪದ್ರಮತಾಣ ಮತಾಡ ಹಬಹೋಳರರುತಬತ್ತುಹೋನಬ.
ಮೆಹೋಲಕ್ಕುಬೆಂಡ ಅಬೆಂಶಗಳಬಲಲ್ಲೂವೊ ಸತಧ್ಯವತಾಗಿರರುತತ್ತುವಬ. ಗರುತಿರ್ಷಸಿದವರರು: ಎಲಟ್.ಟ.ಎಬೆಂ /ಮರುನಿಯಮಮ ಪದ್ರಮತಾಣಮತಾಡದವರರು 26 O.S.NO.483/2010 ನನನ್ನ ಮರುಬೆಂದಬ ಪದ್ರಮತಾಣ ಮತಾಡರರುತತಾತ್ತುರಬ ಬಬಬೆಂಗಳಳೂರರು ತತಾ: 1/8/1985 ಸತಾಕಕ್ಷಿ; ಎನಟ್.ವಬಬೆಂಕಟಸತಾಸ್ವಾಮಿ
38. From perusal this affidavit it is very clear that, the plaintiff himself has formed the sites in the Sy.No.69/1 of Banasawadi village, but as the revenue documents were in the name of the Muniyamma, GPA was executed in the name of Muniyamma and even affidavit is also though in his name, but as the revenue documents were in the name of Muniyamma he got notarized by affixing the LTM of Muniyamma and signed as witness. Otherwise he would have lodged police complaint against the Nanjundegowda and Sathyanarayana and others for creating/fabricating the documents, when the properties have sold on the basis of the fabricated/created documents. No prudent man will keep quiet if his property is sold by a third party by forging 27 O.S.NO.483/2010 signature of concerned. That apart though the plaintiff has made allegation of inducement, fabrication etc., no evidence has been lead by the plaintiff in this regard. And very import aspect is that he never stepped into the witness box, may be to avoid the truth or not to reveal the true facts before the court. From appreciation of the evidence it is clear that the GPA and affidavit are not fabricated.
39. From conjoint reading of the GPA and Affidavit i.e., EX.D.11 and 12, it makes clear that the possession of the property is handed over to the M.B.Nanjudegowda under the Ex.D.11 and 12 which is nothing but GPA coupled with interest, because the possession of the property has been delivered after accepting the consideration amount.
40. The very contention of the plaintiff is that, the sale deed i.e., Ex.P.2 has been executed by the M.B.Nanjudegowda after the death of Smt Muniyamma and hence the said sale is not valid one as the Muniyamma died on 16/2/1992. In this regard I would like to extract the 28 O.S.NO.483/2010 section 202 of Indian contract, Sec.202. Termination of agency, where agent has an interest in subject matter.
Where the agent has himself an interest in the property which form the subject matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.
Illustrations
(a) A gives authority to B to sell A's land and to pay himself, out of the proceeds, debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.
(b) ......x x x x x......
29
O.S.NO.483/2010 And further I would like to rely upon the decision rendered by the Hon'ble High court of Karnataka dated 14/7/2020 in MFC 22850/2013, in the case of MEENAXI & others V/s PANDURANG BHIMRAO LAXMESHWAR since dead by LR's, wherein the said decision at Para No.20, " As per the said provision, if the agency is coupled with interest, it is irrevocable. From the reading of the illustration (a) it is clear, that if the authority is coupled with interest, principal cannot revoke the authority nor it can be terminated by insanity or death. Therefore even after the death of the principal, the agent can act on the basis of the said authority. Therefore the general power of attorney executed in favor of P.B.Laxmeshwar dated 27/12/1984 as per EX.P.23 read along with EX.P.22 is irrevocable power of attorney as it is coupled with interest" 30
O.S.NO.483/2010 And another decision rendered by the Hon'ble High court of Delhi in R.F.A.358/2000, in Shri Ramesh chand v/s suresh chand and another, dated 9/4/2012, wherein at para 4 of the judgment it has been held that, " There is also one other aspect which needs to be clarified before proceedings ahead and which is whether a power of attorney given for consideration would stand extinguished on the death of the executant of the power of attorney. The answer to this contained in illustration given to section 202 of the contract Act, 1872, and the said provision with its illustration reads as under;-....
Section.202.....and ..... illustrations.......
The object of giving validity to a power of attorney given for consideration even after 31 O.S.NO.483/2010 death of the executants is to ensure that entitlement under such power of attorney remains because the same is not a regular or a routine power of attorney but the same had elements of commercial transaction which cannot be allowed to frustrated on account of death of executant of the power of attorney.
As per Sec 202 of Contract, it very much clear that the GPA coupled with interest will be in-operation even after the death of the principal.
And another important decision is decision rendered by the Hon'ble High Court of Delhi in R.F.A.648/2006, dated 18/5/2012, in the case of Hardip Kaur Vs Kailash and another. In the said decision the Hon'ble high court has held in para 25,26, & 27 as under;-
25. False claims and defenses are 32 O.S.NO.483/2010 really serious problems with real estate litigation, predominantly because of ever escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. It is a matter of common experience that court's otherwise scarce time is consumed or more appropriately, wasted in a large number of uncalled for cases.
26. It is the duty of the courts to see that such wrong doers are discouraged at every step and even if they succeed in prolonging the litigation, ultimately they must suffer the costs of all these years long litigation. Imposition of actual, realistic or proper costs and/or ordering prosecution in 33 O.S.NO.483/2010 appropriate cases would go a long way in controlling the tendency of filing false cases.
27. Conclusion: On consideration of totality of the facts and circumstances of this case, I do not find any infirmity in the well reasoned impugned judgment. The plaintiff has misused the process of law by raising a false claim. The plaintiff has no respect for truth and has made false statements on oath. The plaintiff has shamelessly resorted to falsehood and has attempted to pollute the pure fountain of justice with tainted hands and, therefore, the plaintiff is not entitled to any relief. This case is squarely covered by the above mentioned judgments and warrants prosecution as well as imposition of penal costs on the plaintiff. However, considering that the courts are already overburdened, 34 O.S.NO.483/2010 directing prosecution of the plaintiff would further burden the system. This appeal is consequently dismissed with costs of Rs.2,00,000/- on the appellant. The cost be paid by the appellant to the respondents within four weeks".
41. From reading the above authorities read with section 202 of Contract, it very much clear that the GPA coupled with interest will be in operation even after the death of the principal. Herein in this case, the suit property has been sold by the GPA holder by exercising the power granted to him under the Ex.P.11, in which it is specifically stated that agent is authorized to sell the property covered under it. And stamp duty issue has been corrected by paying the duty on penalty. Under these circumstances I am of the opinion that, when the title of the suit property has been validly transferred to the defendant through the procedure known to the law and when the title not vested with the plaintiff, it can be safely held that the plaintiff has 35 O.S.NO.483/2010 failed to prove the Issue No.1 & 3, hence the same are answered in negative.
42. ISSUE.NO.2:- That the defendant claims the possession over the suit property through a registered sale deed dated 10/8/1992, executed by the M.B.Nanjundegowda as a GPA holder of the Smt Muniyamma. The aspects of validity of the GPA and Affidavit has been elaborately discussed by this court while considering the issue No.1- the ownership and it is opined that the GPA and affidavit are valid and hence the sale deed is also valid, when the possession is transferred to the defendant through a registered instrument by passing the title, then it cannot be said that the defendant is in permissive possession, hence the issue No.2 is held in negative.
43. Issue. No.4:- when the plaintiff is unable to prove the ownership over the property, and when the same is transferred in favor of the defendant through the 36 O.S.NO.483/2010 registered instrument, naturally plaintiff is not entitle for possession, hence the same is answered in negative.
44. Issue.No.5:- when the plaintiff is not the owner of the suit property and when he is not in possession over the suit property and when there is no question of interference then the plaintiff is not entitle for permanent injunction. Hence the same is answered in negative.
45. The L/c for plaintiff during the course of the argument has relied upon several decisions and same have been produced along with memo.
2014 (1) KCCR 676, in the case of Wajid Pasha Vs The Chairman, BDA & Others. I have gone through the said decision, in the said decision a writ has been filed by the power of attorney holder and agreement holder after the death of the executant. Under the said circumstances right to file writ petition was considered by the court and it is held that, he has no right to file the writ petition to 37 O.S.NO.483/2010 challenge the BDA acquisition. In my humble opinion in view of the latest decision by the Hon'ble High Court of Karnataka in MFA No.22850/2013 the said decision is not applicable to the case on hand, since it is categorically held that, the power is vested with the agent under Section 202 of Contract Act is irrevocable even after the death of the principal when the same is coupled with interest.
And another decision reported in AIR 2007 Rajasthan 166 this also in the same line that the sale deed executed by the power of attorney holder after the death of the principal. But as already noted in this case the sale deed has been executed by the power of attorney holder whose interest is created under Section 202 of Contract Act. In view of the latest decision of our Hon'ble High Court, this decision is not applicable to the case on hand.
And another decision reported in Laws Karnataka 2017 3 31 in the case of Chikka Venkatamma Vs R.Nagaraja. In that case it is held that in the absence of registered and 38 O.S.NO.483/2010 duly stamped document no title will pass on to the purchaser but the said decision is not applicable to the case on hand for the simple reason that the power of attorney holder has executed registered sale deed by exercising the power conferred under irrevocable power of attorney, hence the same is not applicable to the case on hand.
And another decision reported in AIR 2011 Karnataka
1. This decision is rendered under Section 34 and Article 41(ea) and Article 20 of the Stamp act but in my humble opinion the stamp duty issued has been sorted out by the parties by paying duty and penalty in this case.
And another decision reported in AIR 1972 Mysore
263. It is in respect to construction of document but in the particular case the original owner Muniyamma has executed GPA coupled with interest after accepting the consideration amount and the said power of attorney is irrevocable GPA coupled with interest and on the basis of the said power of attorney sale deed has been executed. Hence the same is 39 O.S.NO.483/2010 not applicable to the facts on hand.
Likewise another decision ILR 2015 Karnataka 1984 it is with respect to imposition and impounding of document but imposition and collection of duty has been sorted out in this case.
And another decision reported in ILR 2010 Karnataka 2204 in Sri.Anantswami Vs Smt.Radha Srinath and Another. It is with respect of the construction of the document. As already noted the original owner Muniyamma has executed GPA coupled with interest and on the basis of GPA duly registered sale deed has been executed in favour of defendant, hence present decision also not applicable to the case on hand.
And another decision reported in AIR 1952 SCC 153. It is relied upon by the plaintiff stating that, the document itself creating interest in immovable property needs registration but GPA executed by Muniyamma in favour of 40 O.S.NO.483/2010 Nanjunde Gowda or Sathyanarayan is does not required registration since same is required to be executed before the notary and same is duly performed. Hence the same is not applicable to the case on hand.
And another decision rendered by Hon'ble High Court of Karnataka in W.P.No.6238/2011 in Sri.V.R.Ramesh Vs M.P.Babuprasad. I have carefully gone through the said decision, in the said decision the order passed by the trial court was challenged wherein the trial court was ordered to pay duty and penalty of power of attorney, affidavit and agreement of sale and the said decision also not applicable to the case on hand.
And another decision reported in AIR 1994 Karnataka
133. It is in respect of irrevocable power of attorney. Wherein it is held that, Terms not disclosing creating of agency coupled with interest in favour of agent - mere use of word irrevocable does not make the power of attorney irrevocable but the facts on hand is entirely different 41 O.S.NO.483/2010 because in the GPA executed by Muniyamma it is specifically stated that will not canceled the GPA and in the affidavit it is clearly mentioned that, the interest has been created in favour of the agent. Under these circumstances the said decision also not applicable to the case on hand.
And another decision reported in 1992 SCC (2) 524. This is in respect of Order 1 Rule 10 of CPC because the other side has taken a contention that, the Nanjunde Gowda and Sathyanarayana and Others against whom the plaintiff has made allegation of fraud is not made as parties to overcome the said contention the present citation has been relied upon. But in my humble opinion, the said decision is not helpful to the plaintiff for the simple reason when there is clear cut allegation is made against the Nanjunde Gowda and Sathyanarayana definitely they should have been made parties in the suit because they only have sold the property to the defendant by exercising power conferred under GPA. Hence the said decision is not helpful to the plaintiff. 42
O.S.NO.483/2010 And another decision in ILR 2003 Karnataka 3268 it is in respect of Section 61 of Karnataka Land Reforms Act. In that decision it is held what one cannot do directly on account of prohibition in law cannot be done indirectly but the said decision also not applicable to the case on hand, for the simple reason Muniyamma herself has executed GPA coupled with interest and on the basis of said GPA sale deed has been executed. Hence the said decision is not applicable to the case on hand.
And finally decision reported in 2006 (3) KCCR 1889, but said decision is not applicable to the case on hand, in view of Transfer of Right through a valid registered sale deed.
46. Issue No.6:- for above said reasons, I proceed to pass the following order:-
ORDER Suit of the plaintiff is dismissed with cost, 43 O.S.NO.483/2010 Draw decree accordingly (Dictated to the Stenographer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 31st day of March, 2021.) (SATHISHA L.P.) XII ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY SCHEDULE All the peace and parcel of the property bearing site No.43, house list khatha No.554, measuring East to West 40 feet and North to South 30 feet in all totally measuring 1200 square feet, situated at Banasawadi Dhakle, B.Chennasandra village, Krishnarajapura hobli, Bangalore South Taluk presently it is Bangalore East Taluk and bounded on the:-
East by: 20 feet road
West by: Gangareddy property
North by: Muniyamma House
South by: House site No.44 of vendors property ANNEXURE I. List of witnesses examined on behalf of:
(a)Plaintiff' side :
P.W.1: Sri. Nataraj
44
O.S.NO.483/2010
(b)Defendant's side :
D.W.1: Sri. V.Lakshmana
II. List of documents exhibited on behalf of :
(a)Plaintiff' side :
Ex.P.1: GPA dated 22-04-2014
Ex.P.2: Certified copy of the sale deed
dated 10-08-1992
Ex.P.3 RTC's
to 5:
Ex.P.6 : MR
Ex.P.7: Death certificate of Muniyamma
Ex.P.8: Office copy of the legal notice dated
18-11-2009
Ex.P.8(a) RPAD Receipts
& (b):
Ex.P.8(c): Postal acknowledgment
Ex.P.8(d): Returned RPAD cover
Ex.P.9 MR
&10:
(b) Defendants side :
Ex.D.1: Certified copy of the sale deed
dated 10-08-1992
Ex.D.2 Khatha certificates
& 3:
Ex.D.4 Khatha extract
& 5:
Ex.D.6 EC's
& 7:
Ex.D.8: License
Ex.D.8 Blue print
(a):
45
O.S.NO.483/2010
Ex.D.9 Tax paid receipts
to 22:
Ex.D.23: Bank statement
Ex.D.24 Certified copies of the judgment and
& 25: decree in O.S.No.6436/2004
Ex.D.11 GPA dated 01-08-1985 and affidavit
& 12: dated 01-08-1995 are marked as
Ex.D.11 & 12
XII ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.