Bangalore District Court
Sri. Adinarayanappa vs M. Krishnappa on 14 January, 2020
1
O.S.No. 87/ 1997
IN THE COURT OF THE XXIV ADDL.CITY CIVIL AND
SESSIONS JUDGE BANGALORE CITY (CCH-6)
This the day of 14th day of January, 2020.
Present: Smt. Meenaxi M. Bani,
B.Com., LLB(Spl),
XXIVAddl. City Civil & Sessions Judge,
Bangalore City.
ORIGINAL SUIT NO. 87/ 1997
PLAINTIFFS: Sri. Adinarayanappa,
Since dead by his Lrs
1(a) Smt.Lakshmamma @ Ammayamma,
Since dead by her Lr's 1(b) to 1(h)
1(b) Smt.Parvathamma w/o late
A.Krishnamurthy, (since dead by her
Lrs)
1(c) Sri. Mahesh, Aged about 29 years, S/o
late A. Krishnamurthy,
1(d) Sri. Srinidhi, Aged about 27 years, S/o
late A. Krishnamurthy,
1(b) to 1(d) are r/at No.71/5,
Munichinnappa Lane, Kaval Byrasandra,
R.T.Nagar Post, Bangalore-560 032.
1(e) Sri. Vasudeva Murthy, Aged about 52
years, S/o late Adinarayanappa, R/at
No.1088, 3rd cross, Ward Office Road,
Rajajinagar, Bengaluru-560 010.
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O.S.No. 87/ 1997
1(f) Smt. Saraswathamma, Aged about 63
years, d/o late Adinarayanappa, W/o
M.Jayaram, Residing at No.871, 2nd
block, 2nd stage, Rajajinagar, Bengaluru-
560 010.
1(g) Smt. Bharathi, Aged about 35 years, d/o
late Adinarayanappa, W/o K.Govindaraj,
Residing at No.941/A, 2nd block, 2nd
stage, Rajajinagar, Bengaluru-560 010.
1(h) Smt. Manjula, w/o Babu Reddy, d/o late
Adinarayanappa, Aged about 48 years,
Residing at No.1086, 3rd cross,
Rajajinagar, Bengaluru-560 010.
(By Sri. K.Vijaykumar, Adv.)
-Vs-
DEFENDANTS: 1 M. Krishnappa
Since dead, by his Lrs
1(a) Smt. Sujathamma, W/o late
M.Krishnappa, Aged about 38 years,
1(b) Master Sujan, s/o late M.Krishnappa,
Aged about 15 years,
1(c) Kum. Tejaswini, D/o late
M.Krishnappa, Aged about 13 years,
1(b) & 1(c) are since minors,
represented by their natural guardian
mother, Smt.Sujathamma, 1(a) to 1(c)
are residing at Someshwara Village,
Gudibande Taluk, Chikkaballapura
District.
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O.S.No. 87/ 1997
2 Sriramulu,
Since dead by his Lrs
2(a) Smt. Seetha Lakshmi, Aged about 50
years, W/o late Sriramulu,
2(b) Sri. S.Venkatesh, Aged about 23 years,
S/o late Sriramulu,
2(c) Smt. S.Divya, Aged about 20 years, D/o
late Sriramulu,
2(a) to (c) are residing at No.1, 1st
Cross, Near Nagarjuna Vidya Samsthe
& Siddhartha Pre-university College,
Chowdaiah Block, Near HMT Layout,
R.T.Nagar Post, Bangalore-560 032.
3 Jayappa Reddy,
S/o late Ramaiah Reddy,
Aged about 62 years,
R/at Cholanayakanahally,
R.T.Nagar, Bangalore.
4 M.N.Narasimharaju,
Since dead by his Lrs
4(a) N. Narasaraju, Aged about 35 years,
S/o. late Narasimharaju,
4(b) N. Gopalaraju, Aged about 30 years,
S/o. late Narasimharaju,
4(c) Smt. Subbamma, Aged about 75 years,
W/o. late Narasimharaju,
4(a) to 4(c) are residing at No.23,
Lakshmaiah Block, 12th Cross,
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O.S.No. 87/ 1997
H.A.Farm Post, Ganganagar, Bangalore-
560 024.
5 S.Sreenivasaraju,
Major, S/o late S.Venkataiah,
R/at No.180, H.M.T.Layout,
6th main, H.M.T.Nagar,
Bangalore-560 032.
6 R.Lokesh Reddy,
S/o Sriramaiah Reddy,
Major,
R/at Cholanayakanhalli,
R.T.Nagar Post,
Bangalore-560 024.
(Sri. Anjaneya for D.1(a to c),
Sri. C.M.Desai for D.2,
Sri. B.Veerappa for D.3, 5, 6
Sri.N.Thimmegowda for D.4(a), (c)-
Advocates)
Date of institution of the suit: 02.01.1997
Nature of the suit: Declaration and Injunction
Date of commencement of 29.06.2006
recording of evidence:
Date on which Judgment was 14.01.2020
pronounced:
Duration: Year/s Months Days
23 - 12
5
O.S.No. 87/ 1997
JUDGMENT
This is a suit filed by the plaintiffs for declaration declaring that plaintiffs are absolute owners of the suit schedule property and Sale Deed dt. 20.06.1995 executed by defendants Nos.2 and 3 in favour of defendants Nos.4 to 6 is null and void and consequential relief of permanent injunction restraining the defendants, their agents or anybody on their behalf from interfering with the peaceful possession and enjoyment of the suit schedule property and any other reliefs.
2. Plaint averments are as follows:
Plaintiff is the absolute owner in possession and enjoyment of the land bearing Sy.No.42/1, measuring 2 acres 33 guntas in extent including 8 guntas of Phut Kharab situated at Dasarahalli village, K.R.Puram Hobli, Bangalore South Taluk, which is described in the suit schedule property. The suit schedule property is the self acquired property of the plaintiff having acquired the same by virtue of the grant made by the Government of Mysore on 04.02.1954 and since the date of grant, the revenue records are standing in the name of plaintiff. 6
O.S.No. 87/ 1997 Defendant No.1 is no away concerned to suit schedule property nor in possession of the suit schedule property. Such being the case, defendant No.1 forged the signature of plaintiff before Sub-Registrar and got obtained a document in his name on 15.12.1994. Immediately after coming to know about the same, plaintiff has filed private complaint before Jurisdictional Magistrate. Plaintiff has not executed any document styled as sale deed in favour of defendant No.1 on 15.12.1994 in respect of suit schedule property and same is not binding upon the plaintiff.
(a) It is further averred that, plaintiff has not executed any General Power of Attorney in favour of defendants Nos.2 and 3 at any point of time in respect of suit schedule property. Such being the case, defendants Nos.2 and 3 taking advantage of old age of the plaintiff, have created and concocted document styled as General Power of Attorney. On the basis of said General Power of Attorney, defendant Nos.2 and 3 executed registered sale deed in favour of defendant No.4 and another sale deed in favour of defendants Nos.5 and 6 on 20.06.1995 in respect of 1 acre of land each and plaintiff came to know about the same when he obtained R.T.C extract for the year 7 O.S.No. 87/ 1997 1996-97 and immediately plaintiff obtained mutation extract. Plaintiff filed affidavit before the Assistant Commissioner for cancellation of entries, the said appeal is pending. Defendants Nos.2 and 3 have no manner of right, title or interest of any kind to execute sale deed in favour of defendants Nos.4 to 6. Plaintiff has not been paid any amount towards sale consideration amount. Defendants Nos.2 to 6 are colluded with each other and created false documents.
(b) Defendants Nos.1 to 6 never put in possession and enjoyment of the suit schedule property at any point of time. On the basis of created documents, defendants Nos.2 to 6 harassing the plaintiff and obtaining fraudulent documents in the name of defendants Nos.4 to 6 in respect of suit schedule property. The said sale deeds are not enforceable in law and defendants Nos.2 to 6 does not derive any right, title or interest over the suit schedule property. Hence, defendants Nos.1 to 6 without any manner of right have made attempts to interfere over the peaceful possession and enjoyment of the suit schedule property by taking advantage of the measures and old age of the plaintiff and also the winter vacation to the Courts on 30.12.1996 and the same was resisted by the plaintiff and his family 8 O.S.No. 87/ 1997 members and defendants are attempted to put up constructions over the suit schedule property and plaintiff resisted the act of th defendants, went away saying that they would come again and put up construction of the suit schedule property. Hence the act of defendant is to be distinct by order of permanent injunction. Hence, for the above reasons, plaintiff prays to decree the suit.
3. After service of suit summons, defendants Nos.2 to 6 appeared through counsel. Defendant No.1 remained absent and placed ex-parte. During pendency of suit, plaintiff died and his Lrs were brought on record as plaintiff Nos.1(a) to 1(h).
(a) During pendency of suit, defendant No.1 died and his legal representatives were brought on record. Legal representatives of defendant No.1 filed written statement by denying the plaintiff's case false, frivolous and baseless. It is contended that, legal representatives of defendant No.1 are interested only in respect of 2 acres and they are in possession of the same. Plaintiff has admitted and also compromised before VII Additional City Civil Judge, Mayohall, at Bangalore in O.S.No.1097/ 1994, dated. 02.03.2006 and also plaintiff 9 O.S.No. 87/ 1997 admitted compromise decree and defendant No.1 nor having any right, title or interest over the suit schedule property and plaintiff executed sale deed in favour of defendant No.1 on 15.12.1994 and he has taken consideration amount of Rs.50,000/- from defendant No. 1 and contended that, they are having 1/7th share in the suit schedule property and prays that Judgment and decree may be against defendants Nos.2 to 6 for the relief of declaration may be granted and declaring 1/7th share of Lr's of defendants Nos.1 to 7 and also for the relief of permanent injunction.
(b) Defendant No.2 filed written statement denying the plaint allegation as false, frivolous and vexatious. It is contended that, defendant No.2 has got absolute right, title or interest and possession and enjoyment of the suit schedule property. He denied the plaintiffs title and possession over the suit schedule property. It is contended that, prior to purchase of suit schedule property by 2nd defendant, defendant No.1 was absolute owner in possession of the suit schedule property exercising absolute right of ownership and after valid sale was made in favour of 2nd defendant by payment of valuable consideration, defendant No.2 was put in vacant and peaceful and 10 O.S.No. 87/ 1997 uninterrupted possession and enjoyment of the suit schedule property. Further the avernments regarding threatening with dire consequences and suit schedule property sold to defendant etc. Defendant No.2 further contends that, he has purchased suit schedule property from defendant No.1 under registered sale deed dt. 16.02.2001 for valuable consideration and defendant No.1 was legally and validly transferred and relinquished the suit schedule property absolutely in favour of defendant No.2 and defendant No.2 is absolute owner and in possession and enjoyment of the suit schedule property since the date of purchase. It is denied that, defendant No.1 played fraud and created forged document of defendant No.2 etc., are denied. Plaintiff has no any locus -standi to file the suit, since he is not the owner of the suit schedule property and sale deed executed by defendant No.1 in favour of defendant No.2 is legal and valid. Hence, prays to dismiss the suit.
(c) Defendants Nos.4 to 6 filed separate written statement by denying the plaint avernments. It is contended that, defendants Nos.4 to 6 are in possession of 2 acres of land in suit survey number and they are in possession of the same. It is further contended that, plaintiff has admitted before Tahasildar, Krishnarajapuram that he has 11 O.S.No. 87/ 1997 sold 1 acre of land in favour of defendants Nos.5 and 6 on 20.06.1995 in the total extent of land and also 1 acre in favour of 4 th defendant under General Power of Attorney. On the basis of statement made by the plaintiff, the Tahasildar by his order dated. 03.08.1996 rjected the claim to change the Katha in respect of the suit schedule property. Plaintiffs filed appeal before the Assistant Commissioner, Bangalore North Division, Bangalore, which came to be rejected. Defendants Nos.4 to 6 further contended that, plaintiffs executed General Power of Attorney in favour of plaintiffs Nos.2 and 3 on 08.09.1994 in respect of 1 acre each and plaintiff also put his left thumb impression and signed the said power of attorney on the same day. On the basis of power of attorney, defendants Nos.2 and 3 executed registered sale deed dt. 20.06.1995 in favour of defendants Nos.5 and 6 in respect of Sy.No.42/4, new No.81 of Dasanahalli village to an extent of 1 acre. On the same day, power of attorney holder executed another sale deed in favour of 4th defendant in respect of Sy.No.42/4, New No. 81 measuring to an extent of one acre and these defendants were put in possession of the same.
(d) Plaint avernments such as defendants Nos.2 to 6 colluded 12 O.S.No. 87/ 1997 each other and managed to register a document styled as sale deed in their names by creating a General Power of attorney etc., and they are harassing the plaintiff, caused obstruction etc., denied contending that, defendants Nos.4 to 6 are in possession of the property in pursuance of the sale deed to the extent of 2 acres from 20.06.1995. Hence, question of trespass over the suit schedule property does not arise. Hence, for the above reasons prays to dismiss the suit.
4. On the basis of the pleadings, my predecessor has framed the following: ISSUES
1. Does plaintiff proves that the suit schedule property was granted to him by the government as pleaded in para 2 of the plaint?
2. Do defendant 2 and 3 prove that plaintiff executed a registered power of attorney dated. 15.12.1994 in their favour?
3. Is the sale deed dated. 20.06.1995 executed by defendants 2 and 3 in favour of defendants 5 and 6 valid in law?
4. Does plaintiff prove that he was in lawful possession of suit schedule property on the date of suit?
5. Is the alleged interference true?
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O.S.No. 87/ 1997
6. What decree or order?
Issue No.2 deleted as per order dt. 31.05.2011 RECASTED ISSUES
1. Whether the plaintiff proves that defendant No.2 and 3 have no authority to execute the sale deed in favour of defendant 4 to 6?
2. Whether the plaintiff proves that the sale deed executed by defendant No.2 and 3 in favour of defendant No.4 to 6 is null and void?
3. Whether the plaintiff proves that he is the absolute owner of the suit schedule property?
4. Whether the defendant No.4 to 6 prove that defendant No.2 and 3 have authority to execute the sale deed in their favour?
5. Whether the plaintiff proves that he is in possession of the suit schedule property on the date of suit?
6. Whether the plaintiff proves the alleged interference?
7. Whether the plaintiff proves is entitled for the relief claimed?
8. What decree or order?
5. In order to prove plaintiffs case, plaintiff No.1(e) examined as PW1 and got marked 34 documents at Exs.P1 to P34 and 14 O.S.No. 87/ 1997 also examined 2 witnesses as Pws.2 and 3. Advocate/Notary Smt.Shanta examined as Pw.4. On the contrary, defendant No.5 examined as Dw.1 and also examined 3 witnesses as Dws.2 to 4 and defendant No.1(a) herself examined as Dw.5 and got marked 24 documents at Exs.D.1 to D.24.
6. Heard the learned counsel for plaintiffs and defendants. Advocate for defendant No.1(a), (b), (c) submitted written arguments. Perused the records.
7. My findings on the above recasted Issues are:
Recasted Issue No.1: In Negative
Recasted Issue No.2: In Negative
Recasted Issue No.3: In Negative
Recasted Issue No.4: In Affirmative
Recasted Issue No.5: In Negative
Recasted Issue No.6: In Negative
Recasted Issue No.7: In Negative
Recasted Issue No.8: As per the final order
for the following:
REAS O NS
Recasted Issue Nos.1, 2 and 4 : Since these issues are inter- linked with each other, hence in order to avoid repetition of facts, I 15 O.S.No. 87/ 1997 would like to deal with these issues together for common discussion.
8. It is specific case of plaintiffs that, deceased plaintiff is the original owner and in possession of the suit schedule property bearing Sy.No.42/1, measuring 2 acre 33 guntas including 8 guntas pot kharab land situated at Dasarahalli village, K.R.Puram Hobli. He acquired the suit schedule property by virtue of the grant made by Government of Mysore on 04.02.1954 and the revenue records are standing in the name of deceased plaintiff. Defendants have no manner of right, title or interest over the suit schedule property. Defendant No.1 forged the signatures of plaintiff and obtained the documents in his name on 15.12.1994. Plaintiff has not at all executed any document in his favour. Hence, document that is sale deed executed in favour of defendant No.1 on 15.12.1994 is not binding upon the plaintiff. Plaintiff has not executed any General Power of Attorney in favour of defendants Nos.2 and 3 at any point of time in respect of suit schedule property. Defendants Nos.2 and 3 taken the advantage of old age of plaintiff have created concocted document styled as General Power of Attorney. On the basis of said General Power of attorney, they have executed the sale deeds dated. 20.06.1995 in favour of defendants 16 O.S.No. 87/ 1997 Nos.4 to 6 in respect of 1 acre of land each. Plaintiff came to know about the sale transaction when he obtained R.T.C and mutation extracts, immediately he filed appeal before Assistant Commissioner, Bangalore North Sub-Division for cancellation of the entries and the said appeal is pending. Defendants Nos.2 and 3 have no right to execute the sale deed in favour of defendants Nos.4 to 6 and defendants Nos.4 to 6 does not derive any right on the basis of the above sale deeds. Plaintiff has not been paid any amount towards the sale consideration and defendants Nos.2 to 6 have colluded each other and obtained documents. Defendants Nos.1 to 6 never put in possession of the suit schedule property etc.
9. Whereas, defendant Nos.2 to 6 resisted the plaintiffs case by denying the plaint avernments. Defendant No.2 contended that, he has got right, title, interest or possession over the suit schedule property. Defendant No.1 was absolute owner of the suit schedule property exercising absolute right of ownership and after valid sale was made in favour of defendant No.2 by payment of valuable consideration, he was put in peaceful possession of the suit schedule 17 O.S.No. 87/ 1997 property and defendants Nos.2 and 3 executed sale deed in favour of defendants Nos.4 to 6 etc. Defendants Nos.4 to 6 have contended that, plaintiff has no way concerned to the suit schedule property, since the plaintiff for his legal and family necessity had agreed to sell 2 acres of land out of 2 acres 38 guntas in favour of defendants Nos.2 and 3. Thereafter, plaintiff had executed the General Power of Attorney as well as declaration by way of affidavit stating that, he has received full sale consideration amount and delivered peaceful possession in favour of defendants Nos.2 and 3. Thereafter, on the strength of General Power of Attorney, defendants Nos.2 and 3 have sold one acre of land in favour of defendants Nos.5 and 6 under registered sale deed dated. 20.06.1995 and delivered the physical possession of the suit schedule property. Defendants Nos.2 and 3 have sold remaining one acre of land in favour of defendant No.4 under registered sale deed dated. 20.06.1995. Defendant No.1 gave representation to the Tahasildar, K.R.Puram to change the mutation and R.T.C entries in his favour on the basis of sale deed and after publication in form No.21, after noticing defendants Nos.4 to 6 have filed objections stating that they have purchased 2 acres of land in suit survey number and in the said 18 O.S.No. 87/ 1997 RRT proceedings, plaintiff also appeared and gave statement stating that, he has not sold property in favour of defendant No.1 and admitted that, on the strength of the General Power of Attorney he had sold 2 acres of land in favour of defendants Nos.4 to 6 under separate registered sale deed dated. 20.06.1995 and he has no objection to change the revenue entires in the name of defendants Nos.4 to 6 and accordingly, the revenue entries were entered in the name of defendants Nos.4 to 6 and defendants Nos.4 to 6 have developed the land and formed the layout and sites and sold the sites to various purchasers to put up buildings etc.
10. Plaintiff No.1(a) who examined as Pw.1 in his examination-in-chief filed an affidavit stated that, he is one of the legal heir of deceased plaintiff and he swearing affidavit on behalf of other legal heirs and he stated that, his deceased father was owner in possession and enjoyment of land bearing Sy.No.42/1, measuring 2 acres 33 guntas in the extent including 8 guntas of phut kharab and his father acquired the same by virtue of the grant made by the Government of Mysore on 04.02.1954. Pw.1 further stated that, 19 O.S.No. 87/ 1997 defendant No.1 forged the signatures of his deceased father and got obtained documents in his name on 15.12.1994 and his father had filed private complaint against the defendant No.1 and his father has not executed any such document styled as sale deed in favour of defendant No.1 on 15.12.1994 in respect of the suit schedule property and his father has not executed any General Power of Attorney in favour of defendants Nos.2 and 3 at any point of time. Defendants Nos.2 and 3 taking advantage of old age of his father created and concocted document i.e. General Power of Attorney and on the basis of said General Power of Attorney, he executed one registered sale deed in favour of defendant No.4 and another registered sale deed in favour of defendants Nos.5 and 6 on 20.06.1995 in respect of 1 acre of land each and his father came to know about the same when his father obtained the R.T.C extract and immediately he filed appeal before the Assistant Commissioner etc as pleaded in the plaint. In support of his case, he examined 2 witnesses. Pw.2 - Ramesh in his examination-in- chief has stated about that deceased plaintiff was owner in possession and enjoyment of the suit schedule property and he acquired the same by virtue of the grant and after the death of original plaintiff his legal 20 O.S.No. 87/ 1997 heirs are in possession of the suit schedule property etc. Pw.3- Devaraju another witness also deposed in the same manner.
11. To prove plaintiffs case, he has produced documents such as agreement of sale dated. 04.04.1991 executed by deceased plaintiff in favour of defendant No.2 / Sriramulu in respect of Sy.No.42/4, measuring 2 acres 38 guntas. This document transpires that, there is recital about, vendor agreed to sell the suit schedule property for Rs.2,75,000/- per acre i.e., total consideration of the property is for Rs.11,00,000/- and purchaser has paid Rs.50,000/- by way of advance towards the sale consideration amount and agreed to pay Rs.1,50,000/- within one and half months from the date of agreement of sale and there is also recital that, on survey of the suit schedule property it measures in lesser extent for any reason, the sale consideration amount shall be calculated at the rate as agreed upon and purchaser shall be liable to pay extent of excess land and there is also recital that purchaser shall be entitled to make a layout plan of sites of various sizes as described by the purchaser at his cost and for which the vendor has no objection and after formation of sites, it is open to the 21 O.S.No. 87/ 1997 purchaser to fetch prospective purchasers for the sale of the sites to be formed in the schedule of property. Further there is recital in para 6 that, purchaser undertaken to settle the alleged dispute of one Sri. Neerubhavi Kempanna, and in case of any such settlement arrived at the instance of the purchaser, the vendor herein who is due in a sum of Rs.30,000/- to the said Neerubhavi Kempanna shall be payable to the vendor through the purchaser in his presence of commitment of the vendor shall be only to the extent of Rs.30,000/- etc.
12. Plaintiff has also produced another agreement of sale dated. 01.04.1994 executed by original owner in favour of defendant No.1 and confirming parties as defendants Nos.3 and 4. On perusal of this document it discloses that, there is reference about the previous agreement of sale dated. 04.04.1991 between deceased plaintiff and defendant No.2 and he entered into agreement with confirming parties i.e., defendants nos.2 and 3 and there is recital that, defendants Nos.2 and 3 are second parties and there is reference that, they have paid sum of Rs.1,00,000/- as advance in respect of sale transaction of suit property and there is also reference about the agreement of sale by 22 O.S.No. 87/ 1997 original plaintiff that Neerubhavi Kempanna to the entire extent of suit survey number and about civil dispute pending between them and civil dispute is settled on paying Rs.30,000/- to said Neerubhavi Kempanna and said amount is paid by the purchaser out of sale consideration etc. As per Ex.P.2, parties entered into agreement of sale in respect of suit schedule property for Rs.7,50,000/- and there is also recital that, defendants Nos.3 and 4 paid amount of Rs.2,85,000/- and Rs.50,000/- and also paid Rs.30,000/- to Neerubhavi Kempanna. Plaintiff also produced the survey sketch and certified copies of encumbrance certificates marked at Exs.P.5 and P.7 and 8. Encumbrance certificate at Ex.P.8 shows the sale transaction in the name of defendants Nos.5 and 6. In R.T.C for the year 1994-95 name of plaintiff appeared and RTC for the year 2003 name of defendants Nos.5 and 6 is appearing. Further, plaintiff produced the endorsement issued by Revenue Commissioner to show that, suit property granted to the plaintiff and same is not in dispute. In the documents produced by the plaintiff i.e., old R.T.C name stands in the name of deceased plaintiff. In RTC for the year 2010-11 which is marked at Ex.P.25, name of defendants Nos.4 to 6 is appearing. Plaintiff also produced the certified copy of 23 O.S.No. 87/ 1997 plaint, written statement and order sheet in O.S.No.5348/ 1995 documents disclose that, suit filed by the defendant No.1 against defendants Nos.2 to 4. Plaintiffs also produced Judgment in O.S.No.3825/ 1983 which reveals that, by Plaintiff against Neerubavi M.Kempanna, decreed on 05.02.1983, order passed to the effect that, plaintiff is entitled for recovery of possession of land by depositing amount of Rs.30,000/-.
13. On the contrary, defendants Nos.4 to 6 have produced General Power of Attorney executed by original plaintiff in favour of defendants Nos.2 and 3 dated. 08.09.1994 and affidavit at Exs.D.1 and Ex.D.2. Ex.D.1 discloses that, original plaintiff executed power of attorney in favour of defendants Nos.2 and 3 by authorizing them to alienate the suit property by way of sale, mortgage, gift deed and to put up construction and to make payment of taxes, rates, assessments etc. Ex.D.3 is affidavit sworned by original plaintiff. This document discloses that, deceased plaintiff sworn to the effect that, he executed sale deed in respect of suit schedule property for Rs.7,50,000/- and he has given actual possession of the suit schedule property and executed General Power of Attorney etc. 24 O.S.No. 87/ 1997
14. It is pertinent to note that, clause 5 and 6 of Ex.P.2/ Agreement of sale, there is specific recital about third party purchasers are put in possession of the suit schedule property. Exs.P.1 and Ex.P.2 are inter-linked with General Power of Attorney and affidavit i.e., Exs.D.1 and D.2. In Ex.P.2 produced by the plaintiff, there is recital about total sale consideration amount agreed between the parties is Rs.7,50,000/-, out of which Rs.4,65,000/- is received by the plaintiff measurement of the property also mentioned in Ex.P.2 i.e., 2 acres of land. Original plaintiff had executed General Power of attorney and affidavit at Exs.D.1 and Ex.D.2, which are inter-linked with agreement of sale i.e., Ex.P.2 and in this document, it is recital about delivery of physical possession of the suit schedule property in favour of defendants Nos.2 to 4 as on the date of execution of agreement i.e., clause-5 of the Ex.P.2. Defendants produced General power of attorney executed by deceased plaintiff in favour of defendants Nos.2 and 2 which are marked at Exs.D.1 and D.2. On the strength of General Power of attorney and affidavit at Exs.D.1 and D.2, defendants Nos.2 and 3 have executed registered sale deed in favour of defendants Nos.4 to 6 in respect of one acre of land in Sy.No.42/4, 25 O.S.No. 87/ 1997 under the registered sale deed dated. 20.06.1995 and put the purchasers in physical possession of the property as per Ex.D.3. Further, defendants Nos.2 and 3 also executed another sale deed in favour of defendant No.4 in respect of remaining portion of one acre of land in Sy.No.42/4 under registered sale deed dated. 20.06.1995 as per Ex.D.4. Defendants produced original sale deeds at Exs.D.3 and and also produced certified copy of mutation entries, R.T.C's at Exs.D.5 to 6, which discloses that Khata changed in the name of defendants Nos.2 and 3 by rejecting the objection of defendant No.1. Ex.D.7 is R.T.C extract for the year 1995-96, wherein name of defendants Nos.2 and 3 entered by deleting the name of deceased plaintiff as per mutation entry. Defendants also produced certified copy of order passed by Tahasildar in R.R.T. No. 400/1995-96. This document discloses that, defendant No.1 filed application to enter his name to suit schedule property, for that plaintiffs filed objection to the said application. After the matter, Tahasildar rejected the application for transfer of Katha. It is observed in the order that, plaintiff who was defendant No.4 in the said proceedings stated that, he sold one acre of land in favour of defendants No.2 and one acre of land in favour of 26 O.S.No. 87/ 1997 defendant No.3. Ex.D.10 is order sheet of the said proceedings. Defendants also produced photographs to show that, layout and plots were developed already buildings constructed in the suit schedule property etc and about existence of roads etc.
15. As seen in the cross-examination of Pw.1 in page No.10, Advocate for defendants suggested to Pw.1 that, "as on 08.09.1994 his father sold 2 acres of land in favour of defendants Nos.2 and 3 by receiving sale consideration amount of Rs.7,50,000/-. Pw.1 though denied the suggestion, but he voluntarily stated that, on that day his father had executed agreement of sale and also admitted that as per agreement of sale his father had received Rs.7,00,000/- etc. Further he admitted the signature of his father at Exs.P.1 and P2, but he denied the signatures on Exs.D.1 and 2 i.e., General Power of Attorney and affidavit. From the records, it reveals that, at the instance of plaintiffs, commissioner i.e., finger print expert appointed for investigation. Admitted and disputed signatures of deceased plaintiff Adinarayanappa were sent to hand writing expert and Commissioner who examined Exs.D.1 and 2 as well as Vakalath, plaint and Exs.P.1 27 O.S.No. 87/ 1997 and P.2 i.e., admitted and disputed signatures of deceased plaintiff Adinarayanappa, submitted the report opining that, admitted signatures of deceased plaintiff T.L.Adinarayanappa on his Vakalath dated. 02.01.1997 and his signatures on plaint dated. 02.01.2007 tallies with disputed signatures Exs.D.1 and D.2. Therefore, denial of signatures of deceased plaintiff on Exs.D.1 and D.2 is not acceptable one.
16. Further, in evidence of Dw.1 and his witnesses, they have stated that, defendants Nos.4 to 6 formed private layout in 2 acres of suit land and sold the sites to different purchasers and already building are constructed by purchasers and the entire properties fully developed and there is no piece of land in Sy.No.42/4 etc. The Photographs produced by the defendants at Exs.D.11 to 19 which shows the formation of roads, construction of buildings etc. Pw.1 in his cross- examination at page No.12, para 2 stated that, " ದದವದ ಷಡಡಡಲಲಸಸತತನಲಲ ಮನನಗಳನನನ ಕಟಟಸದದದರನ". Further at page No.13 admitted that, " ದದವದ ಷಡಡಡಲಲ ಸಸತತನಲಲ ಮನನಗಳನನನ ಕಟಟಸನವದಗ ನದವವ ಯದವವದನದ ಕಕಮ ತನಗನದನಕನಡಳಳಲಲಲ". As per Ex.P.2, clause-5 there is clear recital about delivery of physical possession of the suit property on the date of 28 O.S.No. 87/ 1997 execution of Ex.P.2 for formation of layout. Plaintiffs has not placed any materials to show that, they have taken back the possession from the defendants Nos.2 and 3 after execution of Ex.P.2. Defendants Nos.2 and 3 have sold one acre of land in favour of defendants Nos.4 to 6 which is admitted by Pw.1. So there is no agricultural status in the suit schedule property. No-doubt plaintiff examined 3 witnesses in support of his case who have stated that deceased plaintiff was in possession of suit schedule property and after his death, his legal representatives are in possession etc. In his cross-examination categorically admitted about existence of constructed houses in the suit schedule property though he denied that there is no any piece of land in existence etc. Pw.1 also admitted about the appeal preferred by his father before Assistant Commissioner came to be dismissed etc. Further in the cross-examination of Pw.1 he stated that, he do not know personal knowledge about Exs.P.1 and Ex.P.2 i.e., agreement of sales and deceased plaintiff handed over possession of 2 acres of land in favour of defendants Nos.2 and 3 and also about formation of layout, plots in the 2 acres of land etc and he pleads ignorance about who are all constructed houses in Survey No.42. Further, Pw.1 stated 29 O.S.No. 87/ 1997 that, defendants Nos.4 to 6 got entered their names in the revenue records, they have committed forgery etc., but no any criminal action taken against them for alleged forgery. Further, Pw.1 pleads ignorance about the appeal preferred by his father before Assistant Commissioner, which came to be dismissed etc.
17. Pw.2 and 3 are lengthily cross-examined by the learned counsel for defendants. Though Pw.2 denied suggestion that, suit property is fully developed, there are constructed houses etc. But he stated that, he do not know personally about family affairs of deceased plaintiff and admitted about formation of road. He pleads ignorance about houses constructed in the suit schedule property as shown in photographs at Exs.D.11 to D.19 and there is Canara Bank in the suit schedule property etc. Pw.3 in his cross-examination at para 2 admitted about construction of houses by the side of the road, he do not know whether building are in the suit schedule property etc and he unable to state from which year he was cultivating the suit schedule property etc and he do not know about suit property sold by original plaintiff to defendants Nos.2 to 4 by receiving sale consideration 30 O.S.No. 87/ 1997 amount etc.
18. Smt.M.Shantha, Advocate and Notary examined as Pw.4 in examination-in-chief stated that, she do not know on what date the General Power of Attorney, Ex.D.1 was executed and he do not remember who were parties present at the time of notarizing the General Power of Attorney/ Ex.D.1. Further she stated that, she do not notarized any documents without gone through the documents and she do not know personally the executants of General Power of Attorney Ex.D.1, T.L.Adinarayanappa and witnesses etc. Further, she stated that she has not seen any corrections in Ex.D.1 and D.2 at the time of execution of documents etc. During cross-examination of Pw.4 by Advocate for defendant, she stated that, when parties were present then only she attested the documents and she also put his notary seal and signature to Ex.D.2 and same is marked at Ex.D.2(c) and round seal is marked at Ex.D.2(d) at page No.2 of the affidavit. Further, she stated that, Exs.D.1 and D.2 were attested by her with her seal and signature, normally every year register shall be submitted before the Principal District Judge and on inspecting the book by the Principal 31 O.S.No. 87/ 1997 District Judge and signed with the seal and returned the same etc. The evidence of Pw.4 will not helpful to the case of the plaintiffs, since Pw.4 stated that when parties were present then only she attested the documents etc.
19. Advocate for plaintiff have lengthily cross-examined Dws.1 to 3. Except some minor admission, nothing has been elicited from their mouth to disbelieve their evidence. Defendants produced original sale deed executed by deceased plaintiff through General Power of Attorney in favour of defendants Nos.2 and 3 marked at Exs.D.3 and 4 and also mutation extracts and RTC extracts etc. As already discussed in General Power of Attorney/ Ex.D.1 and Ex.D.2 affidavit and signatures on the said documents and admitted signatures are examined/ inspected by the hand writing expert and given opinion that, same belongs to one and the same person i.e., deceased plaintiff. Pws.1 to P.3 have categorically admitted about the existence of constructed building in the suit schedule property. Further, defendants Nos.4 to 6 have formed layout in respect of 2 acres of land in suit survey number and suit schedule property fully developed and it is 32 O.S.No. 87/ 1997 admitted by Pw.1 in his cross-examination that, in Ex.P.2 i.e., confirmation agreement at clause No.5, there is specific recital of delivery of physical possession as on the date of execution of Ex.P.2, for formation of the layout. Defendants Nos.2 and 3 have delivered physical possession of the suit schedule property in favour of defendants Nos.4 to 6 and executed the sale deed and delivered the possession etc. The documents produced by the plaintiff itself goes to show that, possession of the suit schedule property is not with the plaintiff.
20. The counsel for the defendants has argued submitting that since the plaintiff is not in possession of the suit schedule property as on the date of suit, the present suit filed by the plaintiff with respect of suit schedule property is not maintainable without seeking relief of possession. In this regard, advocate for defendants relied upon the following decisions:-
1) AIR 1993 SC Page 957, in the case of Sri. Vinay Krishna V/s Sri. Keshav Chandra and another
2) 1973(2) SCC Page 60, in the case of Sri. Ram Saran and another V/s Smt. Ganga Devi.33
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3) ILR 2007 KAR Page 339, in the case of Sri. Aralappa v/s Jangannath and others,
4) AIR 2000 Madras page 465 in the case of Sri. S.Madaswamy Thevar v/s Sri.A.M.Arjuna Raja
5) 2013 AIR SCW 2752
6) AIR 2007 SC 1499.
I have gone through the cited decisions. The principles enunciated in the above cited decisions are squarely applicable to the present case on hand.
21. While discussing in the earlier discussions, this court has come to the conclusion that, plaintiff not able to prove his ownership and possession of suit schedule property since as per Exs.D.1 and D.2 deceased plaintiff had executed General Power of Attorney and affidavit in favour of defendants Nos.2 and 3 and on the strength of the same, they have sold one acre each to defendants Nos.4 to 6 etc and plaintiff himself produced the documents at Exs.P.1 and P.2 i.e., agreement of sale in respect of 2 acres 38 guntas of land in Sy.No.42/4 and defendants Nos.4 to 6 are in possession of 2 acres of land and they 34 O.S.No. 87/ 1997 have formed the layout and sold sites to different purchasers. As could be seen in Exs.D.1 and D.2, there was transaction between plaintiff and defendants and recitals in the sale deed goes to show that, deceased plaintiff had executed said documents after receiving part consideration amount and delivered the physical possession of 2 acres in suit survey number and also Ex.D.1 and Ex.D.2 are in continuation of Ex.P.2. Further, Pw.2 admitted about consideration amount received by his father as per agreement of sale. Further the disputed LTM and signatures of deceased plaintiff on Exs.D.1 and D.2 and admitted signatures are investigated by the hand writing expert and opined that, they are one and the same person. Therefore, it is clear that, original plaintiff had sold the suit schedule property by execution of Exs.D.1 and 2 in favour of defendants Nos.2 and 3, who sold one acre of land to defendants Nos.4 to 6. On considering the pleadings, oral and documentary evidence available on record, I am of the opinion that, plaintiff unable to prove his case. On the other hand, defendants Nos.4 to 6 have produced the cogent oral and documentary evidence and proved the sale deed executed by defendants Nos.2 and 3 in their favour on the basis of Exs.D.1 and D2. Therefore, I answer issue 35 O.S.No. 87/ 1997 Nos.1 and 2 in the Negative and issue No.4 in the Affirmative.
Recasted Issue Nos.3 and 5 : Since these issues are inter- linked with each other, hence in order to avoid repetition of facts, I would like to deal with these issues together for common discussion.
22. It is specific case of the plaintiff that, plaintiff is the owner and in possession of the suit schedule property bearing Sy.No.42/1, measuring 2 acres 33 guntas including 8 guntas phut kharab land and same has been granted to him by order dated. 04.02.1954 and revenue records are standing in the name of plaintiff and he has not executed any General Power of attorney in favour of defendants Nos.2 and 3 in respect of suit schedule property, who in turn have executed the sale deeds in favour of defendants Nos.4 to 6 and names of defendants Nos.4 to 6 entered as per mutation and plaintiffs filed appeal before Assistant Commissioner, Bangalore for cancellation of entries etc. About the grant of suit schedule property to the deceased plaintiff is not disputed. Defendants Nos.2 and 3 have contended that, plaintiff executed the General Power of Attorney and 36 O.S.No. 87/ 1997 affidavit in favour of defendants Nos.2 and 3 and also agreement of sale produced at Exs.P.1 and 2, on the strength of the General Power of Attorney and affidavit, defendants Nos.2 and 3 have executed the sale deed in favour of defendants Nos.4 to 6 in respect of one acre of land in suit property on 20.06.1995 and said purchasers are handed over possession and they are put in possession of the suit schedule property as per Exs.D.3 and 4 and name of defendants Nos.4 to 6 mutated as per MR No. 3/ 1996-97. Defendants Nos.4 to 6 have formed private layout and sold sites to various purchasers etc., and defendants also produced photographs to show about the construction of houses, formation of road etc., and Pw.1 admitted same in his cross-examination. In Exs.P.1 and 2 also there is recital about delivery of suit schedule property for formation of layout. Plaintiff has not produced any material to show that possession is taken back from defendants Nos.2 and 3 after execution of Ex.P.2. While discussing earlier issues come to the conclusion that, deceased plaintiff had executed General Power of Attorney and also affidavit in favour of defendants Nos.2 and 3 and on the strength of General Power of Attorney they have executed sale deed in favour of defendants Nos.4 37 O.S.No. 87/ 1997 to 6 dated 20.06.1995 etc. As admitted by Pw.1 that, there are construction of houses and formation of roads as per photographs produced by the defendants. Further, signature of Exs.D.1 and 2 sent to hand writing expert for opinion and after thorough inspection and investigation, the admitted signatures of deceased plaintiff on Vakalath, plaint tallies with disputed signatures at Exs.P.1 and P.2, Exs.D.1 and D.2 and signatures on the said documents belongs to the same person. Further Pw.1 has categorically admitted in the cross- examination at Page no.10 that, as per agreement of sale his father agreed to sell the suit schedule property measuring 2 acres of land for Rs.7,00,000/- and he received amount of Rs.7,00,000/- and about receipt of consideration amount and he produced agreement of sale executed by deceased plaintiff in the year 1994 and executed Exs.D.1 and D.2. Pw.4 / Advocate and Notary also deposed about the power of attorney executed by plaintiff, it is authenticated by her. Under Section 85 of Evidence Act, the presumption is available under law. In Exs.P.1 and 2 also it is clearly stated that deceased plaintiff has received consideration amount from defendants Nos.2 and 3 and delivered the possession.
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23. Further, Advocate for defendants relied the decision reported in AIR 1979 SC 553, wherein it is held that, "power of attorney - not compulsorily registrable- donors of power who executed it known to register- non mention of that fact on deed does not invalidate it etc. As per Exs.P.1 and 2, the plaintiff had received the part sale consideration amount and after receipt of the full sale consideration, he executed Exs.D.1 and D.2 i.e., power of attorney and handed over possession to defendants Nos.4 to 6 on the strength of the registered sale deed dated. 20.06.1995 executed by defendants Nos.2 and 3 and they have formed layout and sites and sold to different persons. Considering the facts and circumstances, oral and documentary evidence on record, I am of the opinion that plaintiff is not able to prove these issues. Accordingly I answer these issues in the Negative.
24. Issue No.6 :- Defendants Nos.4 to 6 formed layout and sold the sites to various purchasers as admitted by Pw.1 and witnesses. When plaintiff unable to prove his possession and enjoyment of the suit schedule property as on the date of suit, 39 O.S.No. 87/ 1997 question of alleged interference does not arise at all, in Ex.P.2 produced by the plaintiffs, there is recital about delivery of possession of the property measuring 2 acres in suit survey in favour of defendants Nos.2 and 3 in the year 1994 and thereafter on the basis of Exs.P.1 and 2, defendants Nos.3 and 4 sold one acre of land to defendants Nos.4 to 6 and they formed layouts and sold the sites to various purchasers and Katha entered in their names etc., the witnesses examined on behalf of defendants i.e., Dws.2 and 3 also spoken about the same. From considering the above, it is clear that, plaintiff is not the owner and in possession of the suit schedule property, hence question of alleged interference does not arise at all. Therefore, I am of the opinion that, this issue is to be answered in Negative and accordingly, same is answered.
25. Issue No.7: In view of my discussions, plaintiffs are utterly failed to prove their title and possession over the suit schedule property, by adducing cogent oral and documentary evidence, therefore plaintiff are not entitled for the equitable discretionary relief of declaration and injunction. Hence, I answer this issue in the 40 O.S.No. 87/ 1997 Negative.
26. Issue No.8: In view of my above findings, I proceed to pass the following:
ORDER Suit filed by the plaintiffs is hereby dismissed. No order as to costs.
(Dictated to the Judgment Writer transcribed by her, after corrections pronounced by me in Open Court on this the 14 th day of January, 2020) (MEENAXI M. BANI) XXIV ADDL.CITY CIVIL & SESSION JUDGE, BANGALORE CITY.
ANNE XURE List of witnesses examined for plaintiff:
PW.1 : A.Vasudevamurthy Pw.2 : Ramesh Pw.3 : Devaraju Pw.4 : M.Shantha 41 O.S.No. 87/ 1997 List of documents marked for plaintiff: Ex.P1 : Counter part of sale agreement dt. 4.4.1991 Ex.P2 : Sale agreement dt.1.4.1994 Ex.P3 : C/c of registered Sale Deed dt. 20.6.1995 Ex.P4 : C/c of registered Sale Deed dt. 20.6.1995 Ex.P5 : Survey sketch Ex.P6 : C/c of tippani Ex.P.7 : C/c of Encumbrance certificate Ex.P.8 : E/C Ex.P.9, 10 : RTCs Ex.P.11 : Endorsement dt. 4.2.1954 Ex.P.12 : Notice dt. 11.11.1983 Ex.p.13 : Tax paid receipt dt. 7.3.1996 Ex.P.14 : C/c of revision settlement akarband Ex.P.15 : Scheduled portion in Ex.D.1 Ex.P.16 : Scheduled portion in Ex.D.2 Ex.P.17 : Genealogy tree Exs.P.18 to P.25 : RTC's Ex.P.26 to P.30 : Tax paid receipts Ex.P.31 : C/c of plaint, written statement and to P.33 Order sheet in O.S.No.5348/ 1995 Ex.P.34 : C/c of Judgment and decree in O.S.3825/ 1983 List of witnesses examined for defendants: D.W.1 : S.Srinivasaraju D.W.2 : D.Munikalappa D.W.3 : Jayappa Reddy D.W.4 : Subramani D.W.5 : Sujathamma List of documents marked for Defendants : Ex.D1 : G.P.A Ex.D.1(d) : Signature of Pw.4 42 O.S.No. 87/ 1997 Ex.D.2 : Affidavit of deceased plaintiff Ex.D.2(c) : Notary seal and signature of Pw.4 Ex.D.2(d) : Signature of Pw.4 Ex.D.3 : Registered sale deed Ex.D.4 : Sale deed executed by deceased plaintiff Ex.D.5, 6 : Mutation register extracts Ex.D.7 : RTC extract Ex.D.8 : Encumbrance certificate Ex.D.9 : Order of Tahasildar Ex.D.10 : C/c of Order sheet in RRT (1) CR.400:95-96 Ex.D.11 to 19 : Photos Ex.D.20 : C.D Ex.D.21 : C/c of sale deed dt.15.12.1994 Ex.D.22 : Encumbrance certificate Ex.D.23 : Compromise petition in O.S.No.10907/1994 Ex.D.24 : Compromise decree in O.S.No.10907/ 1994 (MEENAXI M. BANI) XXIV ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.