Bangalore District Court
Smt.Indira Rajendran vs Smt. Lathamala on 16 January, 2021
1 O.S.No.3176/2012
IN THE COURT OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE
AT BANGALORE CITY - CCH NO.23.
DATED THIS THE 16 th DAY OF JANUARY, 2021.
PRESIDING OFFICER
PRESENT : Sri.Mohan Prabhu,
M.A., L.LM.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
O.S.No.3176/2012
PLAINTIFF/S: SMT.INDIRA RAJENDRAN
W/o Late DR.G.Rajendran,
Aged about 56 years,
presently R/at No.45-A,
Barnaby Road,
Bengaluru - 600010.
and also at:
No.74, 7 th cross,
Cambridge Layout,
Halasur,
Bangalore- 560008.
Represented by her Power of
attorney holder
SRI.M.VENKATASWAMY REDDY,
2 O.S.No.3176/2012
S/o late Munireddy,
Aged about 55 years,
presently residing at No.522,
Swamy Vivekananda Layout,
Amruthahalli,
Bangalore- 560092.
(By Sri.MV, Advocate)
Vs.
DEFENDANT/S: 1. Smt. LATHAMALA,
D/o late B.C.Gurupadaiah,
Aged about 49 years,
R/at No.102,
park side apartment,
2 nd cross, Malleshwaram,
Bengaluru - 560 003.
2. SRI.S.N.KRISHNAIAH SETTY,
S/o late S.Narayana Setty
Aged about 53 years,
properties M/s.Sri Balaji Krupa
Enterprises, No.456, 64 th cross,
5 th Block, Rajajinagar
Bengaluru - 560 010.
3. DR.L.NARENDRA PRASAD,
S/o late C.V.L. Shasthri,
aged about 40 years,
residing at No. 29/A,
9 th main, R.M.V.Extension,
3 O.S.No.3176/2012
Bangalore- 560080.
(D1 By Sri.CMD, Advocate
D2, D3 - Exparte)
* * * * *
Date of institution of suit : 25.04.2012
Nature of suit : Declaration &
Possession
Date of commencement
of recording of evidence : 28.03.2013
Date on which the judgment
was pronounced : 06.01.2021
Duration of the suit :Year/s Month/s Day/s
08 08 12
JUDGMENT
1. This is the suit filed by the plaintiff against the defendants No.1 to 3 for the relief of declaration, possession and permanent injunction praying to declare that the plaintiff is the absolute owner of the suit 4 O.S.No.3176/2012 schedule A property by virtue of sale deed dated 22- 08-2006 executed by the 3 rd defendant and also payed to declare that any title derived in any manner by the 1 st defendant through and under the 2 nd defendant is void ab-intio and the same is not binding on the plaintiff in so for as schedule A property is concern or in respect of any portion or part there of. The plaintiff has also prayed to pass a judgment and decree directing the 1 st defendant to hand over the vacant possession of the schedule B property by ordering the removal of the structures, temporary or permanent construction there on by the the 1 st defendant. The plaintiff has also prayed for permanent injunction against the 1 st and 2 nd defendant or their agents, servants, power of attorney holder, legal representatives and heirs etc., whom was so ever 5 O.S.No.3176/2012 claiming through them restrain from them interfering with the peaceful possession and enjoyment of the schedule A property by the plaintiff.
Schedule A and B property mentioned in the plaint as under:
SCHEDULE A PROPERTY All the piece and parcel of the immovable property bearing residential vacant site No.494B & 494C, Khatha No. 783/33/1-494B and No.781/33/1-494C, assigned by BBMP (Old No. 783/33/1-494B and No.781/33/1-494C assigned by Byatarayanapura CMC) formed out of Sy.No.33/1, situated at Sampigehalli Village, Yelahanka Hobli Bangalore North Taluk converted for non- agricultural/ residential purpose by the Special.Dy.Commissioner, Bangalore District, Bangalore 6 O.S.No.3176/2012 vide conversion Order No.BDIS.ALN.SA(SR)103/1998-99 dated 12-10-1999. Now comes under the jurisdiction of ward No.5, Venkateshapura-Jakkur, BBMP jurisdiction, measuring East-West: 50 feet and North -South: 41 feet, totally 2050 sq.ft comprising compound wall all around, and same is bounded on:
East by : 30 feet road West by : Private Property North by : Site No. 494A South by : Remaining Property SCHEDULE B PROPERTY All the piece and parcel of the property measuring East -West: 50 feet and North - South: 30 feet being the northern side portion (extent is claimed and 7 O.S.No.3176/2012 numbered by the 1 st defendant as site 494/2 & khatha No.360), out of the schedule A property i.e., 494B and 494C totally measuring East-West: 50 feet and North- South: 41 feet carved from the converted 8 acres of land in Sy.No.33/1, situated at Sampigehalli Village, Yelahanka Hobli, Bangalore North Taluk, Bangalore. Now comes under the jurisdiction of Ward No.5, Venkateshapura, Jakkur, BBMP jurisdiction. The total extent of 8 acres of land was converted for residential purpose from agricultural land by the Dy. Commissioner, Bangalore District under their conversion order No.BDS/ALN(NA)SR103/1998-99, dated 12-10- 1999, and same is bounded on:
East by : Road West by : Private Property 8 O.S.No.3176/2012 North by : Site No. 494A South by : Remaining Property of schedule A property i.e., portion of site No.494C.
The case of the plaintiff briefly stated as follows: the plaintiff is the absolute owner in possession and enjoyment of the residential property bearing site No.494B and 494C as mentioned in the schedule A property. The plaintiff acquired the title of the suit schedule A property under registered sale deed dated 22-08-2006 executed by the 3 rd defendant. The plaintiff has purchased the suit A schedule for a total consideration amount of Rs.10,25,000/- and also paid stamp duty and registration fee of Rs.86,100/-. The plaintiff got entered her name in the records maintained by the Byatarayanapura CMC. Thereafter the plaintiff with the intention of constructing the 9 O.S.No.3176/2012 building obtained the sanction plan from the Commissioner of Byatarayanapura CMC on 16-12-2006. the plaintiff has paid the property tax. The suit schedule property area earlier was within the limits of Byatarayanapura CMC. In view of the Government of Karnataka area merger policy a notification was published in the gazette to with effect in the year 2007 and thereafter the suit schedule A property area was merged within the jurisdiction of the BBMP area. Presently the suit schedule A property comes within the jurisdiction of ward NO.5 Venkateshapura-Jakkur BBMP. After the merger of the suit schedule A property the Assistant Revenue Officer Byatarayanapura Range ward No.5 of Venkateshapura-Jakkur has issued the khatha certificate in respect of site NO.494B and 494C in favour of the plaintiff. The plaintiff acquired the 10 O.S.No.3176/2012 title of the suit schedule A property from the 3 rd defendant who had formed the said site among others, in the converted land measuring 8 acres in Sy.No.33/1 Sampigehalli Yelahanka Hobli Bangalore North Taluk. The said 3 rd defendant had acquired the title of the 8 acres agricultural land from one Smt.Byramma W/o late Narayanagowda, Sri Jayagopal Gowda and Sri.Chandrashekar represented by their power of attorney of N.Gundurao S/o Subbaraju under several sale deed such as sale deed dated 26-12-1996, 17-02- 1997, 26-12-1996, 17-12-1996, 20-02-1997, 16-02-1997, 26-12-1996, 26-12-1996 registered in the office of the Sub Registrar Yalahanka Bangalore. Thereafter the name of 3 rd defendant mutated in the revenue records. Thereafter the 3 rd defendant obtained the conversion order from the Special Deputy Commissioner Bangalore 11 O.S.No.3176/2012 vide order No.BDS/ALN(NA)/ SR103/1998-99 dated 12- 10-1999. later on the 3 rd defendant formed the residential layout. It appears that the 3 rd defendant entered into a contract with the 2 nd defendant to sell some sites formed in Sy.No.33/1 and for which he has executed a power of attorney on 6-9-2001 and also several other power of attorneys of subsequent dates. In view of the contractual obligation it seems there was some dispute between the 2 nd and 3 rd defendant and the same was referred to the Arbitral Tribunal Comprising Justice Sri.Venkataraman who has adjudicated the Arbitration in Civil Misc.Pet.No.81/2003 and finally based on the evidence adduced and placed by the both the parties on 16-01-2006 passed an award wherein at para No.16 and 17 a clear finding was recorded to the effect that 34 sites including the site 12 O.S.No.3176/2012 No.494C and 494B are not the subject matter of the construct or the power of attorney which was executed between the 3 rd and 2 nd defendants. The 3 rd defendant after the passing of the award has paid the betterment charges on 07-02-2003 in the office of the Commissioner of Byatarayanapura CMC and also obtained the tax extract for the year 2002-03 in form No.19. The plaintiff who was in search of residential property on coming to know that sites are available in the layout formed by the 3 rd defendant in Sy.No.33/1, she approached the 3 rd defendant and after examining the documents related to the sites she agreed to purchase the same for valuable consideration. The plaintiff is the bonafide purchaser of suit A schedule property. Soon after purchase of suit A schedule property the plaintiff had constructed a Cement Bricks 13 O.S.No.3176/2012 compound wall around the suit A schedule property and one Watchman shed in the A schedule property. For some time a watchman appointed to look after the suit schedule property but the said watchman left without giving intimation long back.
The 1 st defendant is a stranger to the plaintiff and not having any manner of title, right over the suit schedule A property. The plaintiff has been in physical possession and enjoyment of suit A schedule property from the date of acquisition of the title of the same without interference of any party including the 1 st defendant till March 2012. In the month of March 2012 some of the neighbors of the suit schedule A property have informed plaintiff over the phone that some person have demolished compound wall and watchman shed constructed in the suit A schedule property and 14 O.S.No.3176/2012 encroached in the schedule A property and started digging the foundation in the said land. Immediately thereafter the plaintiff has contacted one Sri.M.Venkataswamy Reddy who was immediate neighbor earlier and family friend and now who is acting as her power of attorney holder over phone and requested him to do the needful to protect her interest in the property. The said power of attorney holder visited the site on 31-03-2012 and saw that the 1 st defendant had encroached on the Northern side of the schedule A property to the extent of 50X30 area out of schedule A property. On the next day i.e., on 01-04- 2012 when power of attorney holder visited site once again the 1 st defendant was present in the encroached area i.e., in schedule B property. Upon enquiry the 1 st defendant claimed that the construction activity was 15 O.S.No.3176/2012 going on in a site which she referred to as site No.494/2, khatha No. 360 and which had been purchased by her through the 2 nd defendant in the year 2002 and she had obtained a sanctioned building plan in the year 2011-2012 to construct the building and hence she is carrying on the construction work there on. That on 13-04-2012 the power of attorney holder has visited the suit A schedule property and taken photographs of the schedule A property wherein the 1 st defendant has encroached and is carrying on construction activity. The encroached area is described in the plaint schedule as B schedule.
The power of attorney holder has informed the plaintiff over phone about the incidents taken place on 31-03-2012, 01-04-2012 and 13-04-2012 and advised her take necessary legal steps to safeguard her interest 16 O.S.No.3176/2012 in the schedule A property and to prevent the encroachment of the 1 st defendant. The plaintiff is staying at Chennai under the care of her son, she is a cancer patient hence she requested the power of attorney holder to do the needful to safeguard her interest and to take legal steps to prevent the illegal acts of the 1 st and 2 nd defendant. For the said purpose the plaintiff executed the power of attorney in favour of Sri.M.Venkataswamy Reddy on 17-04-2012 at Chennai. The plaintiff has invested her hard earned money to purchase suit schedule A property and to construct residential house their in. taking advantage of the absence of the plaintiff the 1 st defendant colluded with second defendant and encroached the Northern portion of schedule A property and started constructing the building on the basis of illegal and invalid 17 O.S.No.3176/2012 documents with an intention to defraud the plaintiff and to knock off the property of the plaintiff. Since the 1 st defendant is not having any manner of right and title over the Northern side of the schedule A property, she cannot have any right to construct or put up any permanent structure on the schedule B property. Any transaction between the 1 st defendant and 2 nd defendant are not binding on the plaintiff as well as on the 3 rd defendant. The 3 rd defendant has transferred the title of the schedule A property to the plaintiff since he was having absolute and indivisible right title and interest over the schedule A property. If at all the 1 st defendant is claiming any right for title which she has got through the 2 nd defendant she has to work out the remedy in accordance with the law against the 2 nd defendant and not against plaintiff in respect of the 18 O.S.No.3176/2012 schedule A property. Even though the power of attorney holder of the plaintiff approached the local police on 19-04-2012 and requested them to take necessary steps to remove the 1 st defendant from the schedule A property but the police have not respondent and refuse to receive the complaint and not registered the case against the 1 st defendant heeding to the influence of 2 nd defendant because he is Ex-Minister and ruling political National party leader. The Police have advised the power of attorney holder to approach the jurisdictional Civil Court. Hence on these grounds the plaintiff prayed to decree the suit.
Despite of service of summons to the defendant No.2 and defendant No.3 they have not appeared before the court. Hence defendant No.2 and 3 are placed exparte.
19 O.S.No.3176/2012
The defendant No.1 who engaged her counsel resisted the claim of plaintiff by filing her written statement which is briefly stated as follows;
There is no material evidence with regard to the cause of action, encroachment and title and possession over the alleged suit schedule A property therefore no declaration and injunction can be granted in respect of uncertain or unidentified schedule A property. It is Cristal clear that, as per the arbitration award relied by the plaintiff the layout was formed in respect of land measuring 8 acres in Sy.No.33/1 and all the sites were sold in favour the various intending site purchasers in the year 2002 itself. The site No.494/2 was sold by the 2 nd defendant in favour of this defendant and put this defendant in physical possession of said site in the year 2002 itself. Site No.494/3 was 20 O.S.No.3176/2012 sold in favour of some other site purchaser. Both sites are measuring 50X30 feet but in the place of the same site the plaintiff now fraudulently claiming that site No.494B & 494C is measuring East-West: 50 feet and North-South: 41 feet. The measurement and boundaries does not tally. The plaintiff is unable to identify the suit schedule A property. The plaintiff is falsely claiming on the property of the 1 st defendant. The vendor of the plaintiff i.e., defendant No.3 himself had filed a suit in O.S.No.8507/2006 against this defendant praying to declare the sale deed dated 07-11-2002 is invalid. The said suit was dismissed on merits on 24-09-2011. The suit in OS.No.8507/2006 filed on 22-09-2006 but before cancellation of the sale deed dated 07-11-2002 the plaintiff has entered into second fraudulent transaction with the defendant No.3 on 21 O.S.No.3176/2012 22-08-2006. The defendant No.3 who is having knowledge about sale deed dated 07-11-2002 and knowledge that from 2002 onwards that 1 st defendant is in possession and enjoyment of site No.494/2, but the defendant No.3 without taking back the possession from the 1 st defendant and without due process of law he had executed another sale deed in favour of the plaintiff. Now the plaintiff on the basis of the fraudulent transaction is illegally claiming right over the defendant's property. The title of the plaintiff is defective and the plaintiff is not in possession of the suit schedule A property. The plaintiff is not entitle for any relief claimed in the plaint. The suit of plaintiff is barred by limitation. After dismissal of the suit in OS.No.8507/2006 the plaintiff again on the same lines filed the similar suit. The vendor of plaintiff has 22 O.S.No.3176/2012 already agitated same relief before this court and the issue regarding the cancellation of the sale deed and other issues were directly and substantially in the earlier proceedings which came to be considered and had reached finality and once again the plaintiff is also seeking same relief in the present suit, hence the suit is not maintainable. The present suit is barred by principles of resjudicata.
The 1 st defendant is in possession and enjoyment of the property bearing site No.494/2 and has built up house in the said property. The question of encroaching the plaintiff's alleged property doesn't arise at all. Since this defendants sale deed pertains to the year 2002 and plaintiff's alleged sale deed pertains to the year 2006 the sale deed of this defendant earlier sale deed and the defendant is in possession and enjoyment 23 O.S.No.3176/2012 of the property from the year 2002 onwards. The court fee paid by the plaintiff is insufficient. Defendant No.2 Sri.S.N.Krishnaiah Shetty has challenged the preliminary Arbital Award before the City Civil Court Bangalore. The plaintiff very well knew about the nature of the transaction of the suit property in favour of this defendant before buying the suit property and that the defendant is in possession and enjoyment of suit property on the basis of the registered sale deed dated 07-11-2002. The suit of the plaintiff is barred by period of limitation. The suit is liable to be dismissed under the provision of Order 7 Rules 11 of C.P.C. The suit filed by the plaintiff through her GPA holder is not maintainable. The sale deed relied by the plaintiff is created by the plaintiff and 3 rd defendant only for the purpose of knocking the property of the 1 st 24 O.S.No.3176/2012 defendant. The khatha, tax paid receipts, license, building plan etc., are creating documents in respect of non existing property and all the documents are created for filing of this suit. The plaintiff's alleged property described as site No.494B and 494C measuring East-West: 50 feet and North-South: 41 feet but at para No.8 of the plaint the plaintiff have contended that the above said both the sites are measuring 50X30 feet and totally measuring 3000 sq.ft but the plaintiff has failed to explain about the remaining extent of the measurements as per the pleadings. It is denied that the plaintiff has acquired the title to the suit schedule A property from the 3 rd defendant. It is contended that, the 3 rd defendant has no right to execute any sale deed in favour of the plaintiff in the year 2006 since the 3 rd defendant had entered into an agreement of sale in 25 O.S.No.3176/2012 respect of Sy.No.33/1 measuring 8 acres of land on 05-09-2001 in favour of 2 nd defendant and further the 3 rd defendant had executed 7 GPA's in respect portions of the land in Sy.No.33/1 and the 3 rd defendant has not retained any portion of land in the said survey number. The 3 rd defendant was not in possession of any portion of property in Sy.No.33/1 and therefore the question of execution of any sale deed in favour of plaintiff in the year 2006 doesn't arise. The plaintiff has not produced any layout plan. The defendant No.1 is not a party in the Arbitration Proceedings. She has not entered her appearance and no notices were served on her. Moreover the said Arbitration proceedings is not binding on this defendant. The allegation made by the plaintiff that she has constructed the compound wall with cement bricks and watchman sheds are all 26 O.S.No.3176/2012 denied as false. The 1 st defendant is the absolute owner and in possession of the property bearing No.494/2 measuring East-West: 50 feet, North-South: 30 feet. This defendant had put up the compound wall surrounding this property and had also put up the house in this property and obtained the electricity and water connection and residing in the said house along with the family members. Since the accommodation of said house was insufficient to the family members of this defendant there after this defendant has decided to put up new building and according this defendant had obtained the modified building sanction plan from the competent authority and demolished the earlier structure and obtained the temporary electricity connection and the defendant had surrendered permanent electricity connection to the Bescom 27 O.S.No.3176/2012 authorities. Thereafter by mobilizing the funds by borrowing the defendant started construction. When the 1 St defendant after completion of the foundation and ground plus first portion by putting up the columns RCC at that stage the plaintiff has filed the present vexatious and baseless suit against this defendant but now the building is completed. The plaintiff is falsely claiming that the suit schedule B properties encroached by this defendant. The plaintiff is not in possession of suit A schedule property at any point of time. The alleged suit A schedule property is not in existence in the locality.
2. On the basis of the above rival pleadings of the parties this court has framed the following issues. 28 O.S.No.3176/2012
(1)Whether the plaintiff proves the
existence and identity of 'A'
schedule property ?
(2)Whether plaintiff proves that he is
the owner of 'A' schedule
property ?
(3)Whether defendant proves that the
sale transaction between plaintiff
and defendant No. 3 is fraudulent
and collusive ?
(4)Whether plaintiff proves that title
derived by defendant No. 1 through
defendant No. 2 is void ab-initio
and not binding on 'A' schedule
property ?
(5)Whether plaintiff proves that
defendant No. 1 encroached over
'B' schedule property, belonging to
plaintiff ?
29 O.S.No.3176/2012
(6) Whether suit is barred by principles of resjudicata ?
(7)Whether suit is not properly valued and court fee paid is insufficient ?
(8)Whether suit is barred by
limitation ?
(9)Whether suit is liable to be rejected under Order 7 Rule 11 C.P.C. ?
(10)whether plaintiff is entitled to the reliefs sought for ?
(11)What order or relief ?
3. In order to prove the case of the plaintiff the plaintiff herself examined as PW1 and the documents Ex.P1 to Ex.P36 are marked on the side of the plaintiff. After closure of the evidence on the side of the plaintiff the 1 st defendant examined as DW1 and got marked the documents Ex.D1 to Ex.D32. 30 O.S.No.3176/2012
4. I have heard the arguments of the learned counsel for the plaintiff and the learned counsel for the defendant No. 1. The learned counsel for the plaintiff and defendant No. 1 have also filed the written arguments. The learned counsel for the plaintiff relied upon the following decisions:
(1) AIR 2016 SC 564 Sri.Jagannath Temple Managing Committee and others Vs. Siddha Math and others. (2) AIR 2015 SC 3826 City Municipal Counsel Balki by its Chief Officer Vs. Gurappa (D) by Lrs and another (3) (2014) 5 SCC 75 Dr.Subramanian Swamy Vs. State of Tamil Nadu and others.
(4) (2011)3 SCC 408 M.Nagabhushana Vs. State of Karnataka and others.31 O.S.No.3176/2012
(5) AIR 2005 Kar 70 Sri.Chinnappa Vs. Corporation of City, Bangalore.
(6) AIR 1976 SC 1569 Syed Md. Salie Labbai (Dead) by Lrs and others Vs. Md.Hanifa (dead) by legal representatives and others.
(7) ILR 1989 Kar 2138 City Municipal counsel Vs. C.Ramu (8) 1976 SCC Online Kar 29 Basavannagouda Fakira Goud Patil Vs. State and others (9) RSA No. 2110/2010 (DEC/INJ)DD 6.11.2020. (10) ILR 1988 Kar 554 Narasimha Shastri Vs. Magesh Devaru 32 O.S.No.3176/2012 (11) AIR 1963 Madras 147 Darmakani Nadar Vs. Mahalingam Nadar.
5. The learned counsel for the defendant No. 1
relied upon the following decisions:
(1) AIR 1994 SC 854 S.P.Chengalvaraiah Naidu (dead) by legal representatives and other Vs. Jagannath (dead) by legal representatives (2) AIR 1979 SC 551 Eshwar Das Vs. State of M.P. and others (3) (2017)2 AKR (DB) 244 Smt.Mahiboobi Noor Sab Dalayat Vs. (4) AIR 2017 SC 3440 S.Saranjith Singh Vs. 33 O.S.No.3176/2012 (5) 2017 AKR 426 Smt.Sophiamma K.C. Vs. Chandi Abraham (6) ILR 2009 Kar 2105 Yajaman NVS Shivaram since dead by legal representatives and others (7) AIR 1984 NOC 80 (AP) (8) ILR 2015 Kar 3554 Mr.Vikram Ravi Menezes Vs. Victor Goveas (9) 2013 AKR 209 Smt.Lakshmamma Mittlaratte Nagappa Vs. H.B.Sannasiddappa (10) 1961 Mysore Law Journal 794 TN Narayanachar and others Vs. V.S.Venkatanathan and others. 34 O.S.No.3176/2012 (11) AIR 1982 Bombay 387 Prakash Gowda Mills Private Limited Vs. Municipal Commissioner for greater Bombay and another (12) ILR 2003 Kar 3042 Veerabhadraiah and another Vs. Jagadish Gowda and another. (13) AIR 2000 Madras 465 S.Madaswamy Vs. A.M.Arjun Raja (14) ILR 2007 Kar 339 Aralappa Vs. Jagannath and others (15) Air 2007 SC 1499 Mayachand Vs. Lal (16) ILR 2005 kar 884 T.N.Nagendra Babu Vs. Manohar Pawar 35 O.S.No.3176/2012 (17) 2004(1) KCCR 662 K.Gopal Reddy (deceased) by legal representatives Vs. Surya Narayana and others (18) AIR 2001 Gowhati 181 R.K.Madu Ryyajit Singh and another Vs. Tekalambam Abun Singh and others (19) ILR 2014 Kar 1311 Sumitra Bai Vs.P.Siddesh and another
6.. My findings to the above issues are as under:
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 Negative
Issue No.7 : In the Negative
Issue No.8 : In the Negative
Issue No.9 : Does not survive
36 O.S.No.3176/2012
for consideration
Issue No.10 : In the Negative
Issue No.11 : As per the final order
for the following:
REASONS
7. Issue No.1 & 2: Since these issues are inter-
connected as such they are taken up together for common consideration and discussions in order to avoid repetition of facts and also for the sake of convenience.
8. The plaintiff has filed this suit for the relief of declaration that she is the absolute owner of schedule 'A' property by virtue of sale deed dated 22.8.2006 executed by the 3 rd defendant and consequentially to declare that any title derived in any manner by the 1 st defendant through and under the 2 nd defendant is void ab initio and the same is not binding on the plaintiff 37 O.S.No.3176/2012 in so far as the schedule 'A' property is concerned. Consequentially pass judgment and decree directing the 1 st defendant to handover the vacant possession of the schedule 'B' property by ordering the removal of the structures constructed thereon by the 1 st defendant and also prayed to pass the judgment and decree of permanent injunction against defendant No. 1 and 2 to restrain them from interfering with the plaintiff's peaceful possession and enjoyment of the schedule 'A' property. According to the plaintiff the schedule 'A' property is immovable property bearing residential vacant site No. 494B and 494C formed out of Sy.No. 33/1 measuring east to west 50 feet, north to south 41 feet totally measuring 2500 sq.ft. Comprising of compound around and bounded towards the east by 30 feet road, west by private property, north by site No. 38 O.S.No.3176/2012 494A, south by remaining property. It is the contention of the plaintiff is that the 1 st defendant who is claiming the property as site No. 494/2 encroached the plaintiff's 'A' schedule property measuring east to west 50 feet, north to south 30 feet on the northern portion which is bounded towards the east by road, west by private property, north by site No. 494A, south by remaining portion of 'A' property, i.e., portion of site No. 494C.
9. Thus it is the contention of the plaintiff is that out of the property belongs to her in site No. 494B and 494C the 1 st defendant had encroached property measuring east to west 50 feet, north to south 30 feet, i.e., site No. 494B. It is the contention of the plaintiff is that the property bearing site No. 494C measuring east to west 50 feet, north to south 30 feet and 39 O.S.No.3176/2012 likewise the property bearing No. 494B measuring east to west 50 feet, north to south 30 feet. It is the contention of the plaintiff is that the property bearing site No. 494B is situated towards the northern side of site No. 494C. It is the specific contention of the plaintiff is that out of total extent of 50 x 60 feet, i.e., site No. 434C measuring 50 x 30 feet and 494B measuring 50 x 30 the plaintiff had purchased the property measuring 50 x 41. According to the plaintiff she has purchased entire site No. 494B measuring 50 x 30 feet and out of site No. 494C she purchased 50 x 11 in all 50 x 41 feet. According to the plaintiff there exists 50 x 19 feet in site No. 494C towards southern side of site No. 494C. The plaintiff now by claiming that the 1 st defendant had encroached upon the northern portion of site measuring 50 feet x 30 feet 40 O.S.No.3176/2012 has filed this suit for the relief of declaration of ownership and for recovery of possession of 'B' schedule property. It is the specific contention of the 1 st defendant is that the suit 'A' schedule property is not in existence. It is the contention of the 1 st defendant is that she is the absolute owner and in possession of the property bearing site No. 494/2 measuring east to west 50 feet and north to south 30 feet as she was purchased the same from defendant No. 2 under registered sale deed dated 7.11.2002. It is the specific contention of the 1 st defendant is that after purchasing the property bearing site No. 494/2 measuring east to west 50 feet, north to south 30 feet which is bounded towards east by road, west by private property, north by property No. 494/1, south by property No. 494/3. she put up the compound wall 41 O.S.No.3176/2012 and constructed small house therein. It is the specific contention of the 1 st defendant is that after purchase of this property bearing site No. 494/2 the Khatha of the property was changed in her name. It is the contention of the 1 st defendant is that during the year 2006 as the defendant No. 2 and 3 interfered with her peaceful possession and enjoyment of her possession hence she filed the suit against them in O.S.No.7668/2006 for the relief of permanent injunction and the same was decreed in respect of the property bearing site No. 494/2. It is the contention of the 1 st defendant is that the 3 rd defendant has filed the suit against her in O.S.No.8507/2006 for declaration that her sale deed dated 7.11.2002 is null and void and for the relief of permanent injunction but the said suit in O.S.No.8507/2006 filed by the defendant No. 3 through 42 O.S.No.3176/2012 his General Power of Attorney holder came to be dismissed on 24.9.2011. It is the specific contention of the 1 st defendant is that the plaintiff is claiming her right over 'A' schedule property which his not in existence. It is the contention of the 1 st defendant is that the plaintiff is laying false claim over her property bearing No. 494/2.
10. The learned counsel for the 1 st defendant has relied upon the decision reported in ILR 2005 Kar 884 to contend that unless the court is satisfied with regard to material details in the light of the material evidence with regard to identification of property no declaration and injunction can be granted. He relied upon the decision of Hon'ble High Court of Karnataka reported in 2004(1) KCCR 662 to contend that whenever the party approaches the court for the relief based on the 43 O.S.No.3176/2012 pleadings and issues he has to prove his case. A suit has to be decided based on merits and demerits of the party who approaches the court. Weakness of the defendant cannot be considered as a trump card for the plaintiff.
11. He relied upon the decision reported in AIR 2009 SC 2966 wherein it is held that the suit for declaration of title and possession - burden of proof is on the plaintiff to make out his case and entitlement of possession - he cannot succeed on any alleged weakness in the title or possession.
12. He relied upon the decision reported in AIR 2001 Gowhati 181 wherein it is held that the burden of proof - suit for declaration of title - he must prove his title and cannot take advantage of weakness of 44 O.S.No.3176/2012 defendant. He relied upon the decision reported in ILR 2014 Kar 1311 to contend that in a suit for declaration of title and for permanent injunction burden heavily rests on the plaintiff to prove his title. Weakness of the defendants case would not strengthen plaintiffs case. The plaintiff has to prove his case to the satisfaction of the court by means of convincing and cogent evidence. If this burden is discharged then only onus shifts on the defendant to establish his plaintiffs case as false and on the other hand the defendants case is probabalised on the basis of the materials on record. The courts cannot on the basis of distorted admission or on the basis of the disputed / not proved document draw the inference in order to grant any remedy to any of the parties to the suit.
45 O.S.No.3176/2012
13. In the light of the principles laid down by the Hon'ble Supreme Court and Hon'ble High Court of Karnataka in the above said cited decisions the burden is heavily upon the plaintiff to show that she is the absolute owner and was in possession of suit schedule 'A' property and also required to prove the exact identification of the property with reference to its true measurements and boundaries. Keeping this view in mind I will proceed further to discuss about the oral and documentary evidence lead by the plaintiff and defendant No. 1 in this suit.
14. The plaintiff who examined herself as PW1 in her examination-in-chief affidavit has reiterated the plaint averments and documents Ex.P1 to Ex.P36 are marked on the side of the plaintiff. Since her examination-in- chief affidavit is reproduction of the plaint averments 46 O.S.No.3176/2012 it need not be narrated again as this court already mentioned about the plaint averments while mentioning the gist of the plaint. The document Ex.P1 is the sale deed dated 22.8.2006 executed by C.V.L.Shastry, General Power of Attorney holder of defendant No. 3 in favour of the plaintiff in respect of the property bearing No. 494B and 494C measuring east to west 50 feet, north to south 41 feet. The document Ex.P2 is the Khatha certificate in respect of property bearing No. 494B. Ex.P3 is the property extract of site No. 494B measuring east to west 50 feet, north to south 30 feet for the year 2012-2013. Ex.P4 is the Khatha certificate of property bearing No. 494C. Ex.P5 is the property extract of 494C measuring 50 x 11 feet for the year 2012-2013. Ex.P6 is the encumbrance certificate of the year 2006 to 2012. Ex.P7 is the tax 47 O.S.No.3176/2012 register extract of the property bearing No. 494B. Ex.P8 is the tax register extract of property bearing No. 494c. Ex.P9 is the copy of approved building plan issued in the year 2006. Ex.P10 is the plan sanction letter dated 15.12.2006 to construct the building in Khatha No. 494B and 494C. Ex.P11 is the receipt for having paid property tax. Ex.P12 is the copy of self assessment made for the year 2007-2008. Ex.P13 is the tax paid receipt. Ex.P14 to 21 are the property tax paid receipts. Ex.P22 to 29 are the certified copy of sale deeds. Ex.P30 is the certified copy of conversion order. Ex.P31 is the certified copy of the arbitration award in C.Misc.No. 81/2003. Ex.P32 is the betterment charge paid receipt. Ex.P33 is the demand register extract, Ex.P34 is the General Power of Attorney executed by PW1 in favour of Venkaraswamy 48 O.S.No.3176/2012 Reddy. Ex.P35 is the certified copy of the order sheet in RFA No. 2081/2011. Ex.P36 is the certified copy of memorandum of appeal filed in RFA No. 2081/2011.
15. On the side of the 1 st defendant the 1 st defendant who examined as DW1 in her examination- in-chief affidavit has reiterated the written statement contentions. Through her the document Ex.D1 to Ex.D32 are marked. Ex.D1 is the certified copy of the sale deed dated 7.11.2002. Ex.D1(a) is the original sale deed dated 7.1.2002. Ex.D2 is the certified copy of conversion order dated 12.10.1999. Ex.D3 is the Khatha certificate of property bearing site No. 494/2. Ex.D4 is the certified copy of property extract in respect of the property bearing No. 494/2. Ex.D5 is the certified copy of the property extract of the year 2007-2008 in respect of property bearing site No. 49 O.S.No.3176/2012 494/2. Ex.D6 is the copy of Khatha certificates two in number. Ex.D7 is the property extract of property bearing No. 494/2 for the year 2014-15. Ex.D8 is the Khatha certificate issued by BBMP in respect of property bearing No. 494/2 which consists of RCC building also. Ex.D9 is the 6 encumbrance certificates from the year 1989 to 2017 in respect of the property bearing No. 494/2. Ex.D10 is the certified copy of water bill paid receipts. Ex.D11 is the plan and licence for construction of building in site No. 494/2. Ex.D12 is the receipt for having paid property tax to the property bearing No. 494/2 from the year 2008- 2009 to 2015-16. Ex.D13 is the 11 property tax paid receipts of the property bearing site No. 494/2. Ex.D14 is the copy of two certificates issued by Andhra Bank House Finance Limited to show that the 1 st 50 O.S.No.3176/2012 defendant taken housing loan of Rs.2,30,000/- in that bank for purchase of site No. 494/2 on 7.11.2002 and thereafter she was cleared the loan by repaying the same. Ex.D15 is the estimation report given by the BESCOM in the year 2012. Ex.D16 is the official memorandum issued by BESCOM. Ex.D17 are two letters issued by BESCOM for having surrendered earlier electricity connection and taking new connection. Ex.D18 is the 12 KEB bills. Ex.D19 is the 9 KEB receipts. Ex.D20 is the receipt for taking solar connection. Ex.D21 is the amount paid receipt for having taken water connection. Ex.D22 is the two receipts issued by BWSSB. Ex.D23 is the 25 water bill paid receipts. Ex.D24 is the two gas connection receipts. Ex.D25 are two telephone bills. Ex.D26 is the telephone bill receipts. Ex.D27 are 4 photos and 51 O.S.No.3176/2012 CD. Ex.D28 is the certified copy of judgment and decree passed in O.S.No.8507/2006. Ex.D29 is the certified copy of judgment and decree passed in O.S.No.7668/2006. Ex.D30 is the certified copy of order sheet of the case in A.S.No.60/2006. Ex.D31 is the copy of complaint dated 10.8.2010 lodged by defendant No. 1 against the plaintiff her vendor and others. Ex.D32 is the Adhar card of the 1 st defendant.
16. DW1 in her examination-in-chief has deposed that she has purchased the site bearing No. 494/2 from the defendant No. 2 in the year 2002 itself and taken possession of the same. She states that the plaintiff fraudulently claiming her site No. 494/2 as site No. 494B and 494C showing wrong measurement as east to west 50 feet, north to south 41 feet. She states that the plaintiff is claiming the site belongs to her by 52 O.S.No.3176/2012 showing the wrong boundaries and site number. She has deposed that the vendor of the plaintiff himself had filed a suit in O.S.No.8507/2006 against her for cancellation of sale deed dated 7.11.2002 and the same was dismissed on merits on 24.9.2011 and confirmed her sale deed dated 7.11.2002 as valid and further held that without seeking possession the suit of the defendant No. 3 is not maintainable and his suit is barred by period of limitation. She has deposed that prior to filing of suit in O.S.No.8507/2006 the present plaintiff has entered into fraudulent transaction with defendant No. 3 on 22.8.2006. She has deposed that the defendant No. 3 without taking back the possession and without due process of law had executed another sale deed in favour of the plaintiff and now on the basis of fraudulent transaction the plaintiff illegaly 53 O.S.No.3176/2012 claims right over the property which belongs to this defendant. She contends that she is in possession and enjoyment of the property bearing site No. 494/2 and has put up the house in the said property. Hence the question of encroaching the plaintiff's alleged property does not arise. The plaintiffs alleged property described as site No. 494B and 494C measuring east to west 50 feet and north to south 41 feet but at para No. 8 of the plaint the plaintiff has contended that the above said both the sites are measuring 50 feet x 30 feet each and total measurement 3000 square feet. The plaintiff has failed to explain about the remaining extent of measurements as per pleadings. Therefore it is crystal clear that the plaintiffs case is inconsistent and baseless claim and the sale deed relied by the plaintiff is created by the plaintiff and defendant No. 3 54 O.S.No.3176/2012 only for the purpose of knocking of the property of this defendant. She contends that she is the absolute owner of property bearing No. 494/2 measuring east to west 50 feet, north to south 30 feet situated at Sampigehalli village bounded towards east by road, west by private property, north by property No. 494/1, south by property No. 494/3 and she is in possession and enjoyment of the said property bearing No. 494/2. DW1 has deposed that the alleged suit schedule 'A' property is not in existence in locality. She states that the suit in O.S.No.7668/2006 filed by her against the defendant No. 2 and 3 for the relief of permanent injunction decreed on 3.10.2006 in respect of her property. Therefore it is clear that she is in possession and enjoyment of schedule 'B' property from 2002 onwards. But at the present the plaintiff by 55 O.S.No.3176/2012 showing wrong boundaries and extent has filed this suit in order to knock of her property.
17. It is now settled principle of law is that in a suit for declaration of title and possession the plaintiff has to succeed only on the strength of her case and not on the weakness of the case set up by the defendants. The defendant has produced the document Ex.D28 certified copy of the judgment in O.S.No.8507/2006 filed by the 3 rd defendant Dr.L.Narendra Prasad represented by his GPA holder Sri.C.V.L.Shastri which shows that this suit in O.S.No.8507/2006 came to be dismissed on merits. The defendant No. 3 through his General Power of Attorney holder has filed the suit in O.S.No.8507/2006 praying to declare that the sale deed dated 7.11.2002 executed in favour of the present defendant No. 1 56 O.S.No.3176/2012 Lathamala is null and void. The suit property in O.S.No.8507/2006 is the property bearing No. 494/2 measuring east to west 50 feet and north to south 30 feet in Sy.No. 33/1 situated at Sampigehalli village bounded towards east by road, west by private property, north by property No. 494/1, south by property No. 494/3. In O.S.No.8507/2006 the plaintiff / Dr.L.Narendra Prasad (present defendant No.
3) has taken contention that the property bearing No. 494/2 is one of the 34 sites which retained by him. In O.S.No.8507/2006 no such contention is taken that the property bearing site No. 494/2 is equivalent to site No. 494C and 494B. Defendant No. 3 who has filed the suit in O.S.No.8507/2006 against the present defendant No. 1 has not disputed the boundaries and extent of the property bearing site No. 494/2 in that 57 O.S.No.3176/2012 suit. In other words the defendant No. 3 who was the owner of the entire property in Sy.No. 33/1 has not disputed the existence of site No. 494/2 measuring 50 feet x 30 feet in Sy.No. 33/1 but he by contending that this site No. 494/2 is one of the site out of 34 sites retained by him, hence he sought for cancellation of the sale deed dated 7.11.2002 executed by defendant No. 2 in favour of defendant No. 1. Admittedly the suit in O.S.No.8507/2006 dismissed on merits. Thus the existence of property bearing No. 494/2 measuring east to west 50 feet, north to south 30 feet is not disputed by the defendant No. 3 in O.S.No.8507/2006. But only the contention of the defendant No. 3 in O.S.No.8507/2006 was that this property bearing No. 494/2 measuring east to west 50 feet and north to south 30 feet was one of the site which was retained 58 O.S.No.3176/2012 by him without executing General Power of Attorney in favour of the defendant No. 2 S.N.Krishna Sheety.
18. The 1 st defendant has also produced the certified copy of judgement and decree passed in O.S.No.7668/2006 which would go to show that this suit in O.S.No. 7668/2006 for the relief of permanent injunction is decreed against the present defendant No. 2 and 3 in respect of the property bearing site No. 494/2. The suit property involved in O.S.No.7668/2006 is the property bearing site No. 494/2 measuring east to west 50 feet, north to south 30 feet bounded towards east by road, west by private property, north by property bearing No. 494/1, south by property No. 494/3. Thus from the judgment and decree in O.S.No.8507/2006 and O.S.No.7668/2006 it is confirmed that there exists the property bearing site 59 O.S.No.3176/2012 No. 494/2 measuring east to west 50 feet, north to south 30 feet bounded towards east by road, west by private property, north by property No. 494/1 and south by property No. 494/3 which is in possession of the 1 st defendant. On perusal of the document Ex.D29 certified copy of the judgment in O.S.No.7668/2006 it would go to show that the present defendant No. 1 who was filed the suit against defendant No. 2 and 3 has taken contention that she is in possession of property and the defendants attempted to dispossess her and tried to demolish the portion of compound wall. In O.S.No.7668/2006 the present defendant No. 1 has claimed existence of her compound wall around the property bearing site No. 494/2. No doubt the decree in O.S.No.7668/2006 is exparte decree because the defendant No. 2 and 3 were remained exparte in that 60 O.S.No.3176/2012 suit. Now the plaintiff is claiming her right under defendant No. 3. The very same General Power of Attorney holder of defendant No. 3 who has filed the suit in O.S.No.8507/2006 against the present defendant No. 1 has executed the sale deed in favour of the plaintiff in respect of the property bearing site No. 494B and 494C measuring east to west 50 feet, north to south 41 feet. Ex.P1 is the sale deed dated 22.8.2006 executed by General Power of Attorney holder of defendant No. 3 in favour of plaintiff with respect to the residential vacant site No. 494B and 494C measuring east to west 50 feet and north to south 41 feet. One month later after executing the sale deed as per Ex.P1 the very same General Power of Attorney holder of defendant No. 3 has filed the suit in O.S.No.8507/2006 against the present defendant No. 1 61 O.S.No.3176/2012 for cancellation of sale deed dated 7.11.2002. If at all the property bearing No. 494/2 and property bearing No. 494B or 494C are one and the same properties, then the General Power of Attorney holder of defendant No. 3 would have stated the same in O.S.No. 8507/2006. On perusal of Ex.D28 certified copy of the judgment there is no such contention of defendant No. 3 is that the property bearing site No. 494B and property bearing site No. 494/2 are one and the same. Since defendant No. 3 in the previous suit in O.S.No.8507/2006 has not taken any such contention that the property bearing site No. 494/2 and 494B are one and the same, under such circumstances it has to be presumed that the properties bearing site No. 494/2 and 494B are different properties. Now the question is 62 O.S.No.3176/2012 whether the plaintiff proves the existence of property bearing site No. 494B and 494C can be considered.
19. On perusal of the findings given in previous suits in O.S.No.8507/2006 and O.S.No.7668/2006 one thing is very clear that defendant No. 1 was in possession of the property bearing site No. 494/2 measuring east to west 50 feet and north to south 30 feet bounded towards east by road, west by private property, north by property No. 494/1, south by property No. 494/3. In the present suit the plaintiff by contending that the defendant No. 1 has encroached upon northern portion of site No. 494B and 494C constructed the house in that site. The plaintiff by showing encroached portion as schedule 'B' has filed this suit praying to direct the 1 st defendant to handover vacant possession of schedule 'B' property by ordering 63 O.S.No.3176/2012 the removal of structures. The plaintiff has mainly relied on the document Ex.P31 award passed by the Arbitral Tribunal in Civil Miscellaneous Petition No. 81/2003 wherein it is held that the claimant (Dr.L.Narendra Prasad (present defendant No. 3) has not issued any General Power of Attorney to the respondent S.N.Krishna Shetty (present defendant No.
2) in respect of 34 sites described in the schedule to the claimant statement and he continues to be the owner of those sites. No doubt the Hon'ble Arbitral Tribunal in Civil Miscellaneous Petition No.81/2003 has given such finding that the present defendant No. 3 has not issued any General Power of Attorney to the present defendant No. 2 in respect of 34 sites described in the schedule to the claim. But the present plaintiff has not produced the certified copy of the claim 64 O.S.No.3176/2012 petition of Civil Miscellaneous Petition No. 81/2003 to show the schedule of that petition. Admittedly the 1 st defendant is not party in Civil Miscellaneous Petition No. 81/2003. On perusal of the document Ex.P31 certified copy of the award it would go to show that before the Arbitral Tribunal proper sketch was not produced to identify the property in dispute. Admittedly the land bearing Sy.No. 33/1 was measuring 8 acres of land. There was an agreement of sale dated 5.9.2001 between the defendant No. 2 and 3 and in addition to this the defendant No. 3 has executed 7 General Power of Attorneys in favour of defendant No. 2 in order to form the sites and to sell the sites. Ex.P31 Arbitral award would go to show that the respondent in that case has taken contention that he has already sold all the sites formed in 8 acres of land. 65 O.S.No.3176/2012 The Arbitral Tribunal has not made respondent No. 2 to 32 as a party to the claim petition. No doubt the Arbitral Tribunal has held that the claimant (defendant No.3) has not issued any General Power of Attorney to the respondent (defendant No. 2) in respect of 34 sites described in the schedule to the claim statement and he continues to be the owner of those sites. But there is no clear evidence on the side of the plaintiff to show the actual boundaries and measurement of 34 sites described in the arbitral award. Based on the same aribitral award in Civil Miscellaneous Petition No. 81/2003 the defendant No. 3 through his General Power of Attorney holder has filed the suit in O.S.No.8507/2006 praying to declare the sale deed dated 7.11.2002 executed by defendant No. 2 in favour of defendant No. 1 is null and void. But the court 66 O.S.No.3176/2012 after recording the evidence after perusing the document produced in that suit given negative findings on issues and dismissed the suit. In the present suit also the plaintiff has not produced any authentic sketch to show that there exists the property bearing site No. 494B and 494C as mentioned in plaint 'A' schedule, that too in the same place where the 1 st defendant has constructed her house.
20. The learned counsel for the plaintiff while addressing the arguments submitted that in order to prove the identification of the property the plaintiff has produced the unmarked documents, i.e., document No. 33 xerox copy of layout plan which is at page No. 127 and also produced the rough sketch at document No. 40 which is at page No. 171. He argued that when we read the document Ex.P31 arbitral award with 67 O.S.No.3176/2012 the unmarked document No. 33, xerox copy of the plan and the rough sketch document No. 40 in page No. 171 it would go to show that the suit schedule 'A' property is identifiable. This argument of the learned counsel for the plaintiff is not acceptable because it is now settled principle of law is that unmarked and unaccepted documents cannot be looked into for any purpose. The plaintiff for obvious reasons best known to her has not made any effort to produce the authenticated copy of layout plan of 34 sites which was retained by defendant No. 3. the plaintiff has not produced any document such as sketch and layout plan to identify the land bearing site No. 494C and 494B. The unmarked document No. 33 which is at page No. 127 cannot be looked into for any purpose. On perusal of the document Ex.P31 copy of arbitral 68 O.S.No.3176/2012 award it would go to show that even in that proceeding also the authenticated sketch was not marked even though it is observed in arbitral award at page No. 26 that neither side has produced the layout plan with reference to which the description of the area included in each of Ex.R2 to Ex.R7 has been given it is also observed that though the claimant has produced a plan at the stage of arguments and respondent has not disputed that plan except for the marking portions and colouring themselves "proposed residential layout" even in this plan it is indicated that there are 64 numbers sites of 30 feet x 40 feet, 50 numbers of 40 feet x 30 feet, 19 numbers of 40 feet x 60 feet, 16 numbers of 30 feet x 50 feet and 10 numbers of odd dimensions. The dimensions of these 10 sites are not given. On perusal of the arbitral 69 O.S.No.3176/2012 award as per Ex.P31 it would go to show that in that arbitral award also both sides have not produced layout plan in order to identify the sites. No doubt in arbitral award it is observed that there were 16 numbers of 30 feet x 50 feet sites. The plaintiff is claiming that she has purchased the site bearing No. 494B measuring 50 x 30 and portion of site bearing No. 494C. If at all the plaintiff was purchased only portion of site No.494C then there should have remaining portion of the same site bearing No. 494C towards southern side of the same site. The plaintiff has not produced any document to show that there exists remaining portion of site measuring east to west 19 feet and north to south 30 feet in site No. 494C. The defendant has produced the document Ex.D27 six photographs with respect to the property out of which 70 O.S.No.3176/2012 4 photographs are of old property prior to construction of new house and photo No. 5 and 6 are all photos of newly constructed houses. On bare perusal of photographs at document Ex.D27 it does not reveal that there exists any such site measuring east to west 50 feet, north to south 19 feet towards southern side. The plaintiff has taken specific contention that towards northern side of the suit schedule 'A' property there exists site No. 494A. The plaintiff who approached this court for the relief of declaration of ownership in respect of 'A' schedule property and for recovery of possession of 'B' schedule property has not produced any document regarding site No. 494A to show that such site No. 494A is existing towards northern side of the house of defendant No. 1. Admittedly the defendant No. 1 has constructed the house in the site. 71 O.S.No.3176/2012 The defendant No. 1 has taken contention that she has constructed the house in site No. 494/2. But the plaintiff has taken contention that the 1 st defendant has constructed the house in site No. 494B. Under such circumstances if at all the plaintiff would show that there exists site No. 494A towards northern side of the 1 st defendants house then there is some force in the contention of the plaintiff that the house of the 1 st defendant is situated in site No. 494B. But in this suit the plaintiff has not produced any document to show that towards northern side of the 1 st defendant's house there exists site No. 494A. PW1 has not deposed anything about who is in possession of site bearing No. 494A. During the course of cross-examination of PW1 she has deposed that she do not know who is the owner of site No. 494A. PW1 has deposed that she do 72 O.S.No.3176/2012 not know who is the owner of property towards western side which she shown as private property. Thus one thing is very clear that PW1 who claims her ownership over suit 'A' schedule property herself do not know who is the owner of property bearing site No. 494A which is situated towards northern side and she do not know who is the owner of property towards western side of 'A' schedule property. That itself indicates that the plaintiff is not aware where actually her site is situated. PW1 in her cross-examination admitted the suggestion that the 2 nd defendant had sold number of sites in Sy.No. 33/1.
21. The learned counsel for the plaintiff while addressing the arguments submitted that the suit schedule 'A' property is entirely different from that of the property belongs to the 1 st defendant. He 73 O.S.No.3176/2012 submitted that during the course of cross-examination of DW1 she has admitted the suggestion that the plaintiff is claiming her ownership over suit 'A' schedule property measuring east to west 50 feet and north to south 41 feet. He submitted that DW1 in her cross-examination admitted the suggestion that the plaint schedule and the schedule which is mentioned in Ex.P1 tallies with each other. No doubt DW1 has admitted that the plaint 'A' schedule and schedule which is mentioned in Ex.P1 tallies with each other. That does not mean that the suit 'A' schedule property is in existence where the 1 st defendant constructed her house. On perusal of the judgment and decree passed in O.S.No.8507/2006 and in O.S.No.7668/2006 the existence of the 1 st defendant's property in site No. 494/2 is proved. The 1 st defendant again need not 74 O.S.No.3176/2012 prove regarding the existence of her property bearing site No. 494/2. It is the burden on the plaintiff to prove the existence of suit 'A' schedule property. Since the plaintiff is claiming that the 1 st defendant by encroaching the suit 'B' schedule property has constructed the house the heavy burden is on the plaintiff to show that even though defendant No. 1 had her property in some other place she encroached the property belongs to the plaintiff in site No. 494B but in order to substantiate the contention taken by the plaintiff to show the exact location of the suit 'A' schedule property the plaintiff has not produced any authenticated sketch. The unmarked document at page No. 127 i.e., xerox copy of the site plan has no evidentiary value. The plaintiff has not made any efforts to lead secondary evidence as required under 75 O.S.No.3176/2012 section 65 of the Evidence Act. It is pertinent to note that the document Ex.P1 sale deed is very silent with regarding to the measurement of the properties bearing No. 494B and 494C. In other words in Ex.P1 sale deed there is no specific mention that out of site No. 494C only portion of site No. 494C was sold as per Ex.P1. In Ex.P1 sale deed by mentioning both residential vacant site No. 494B and 494C the total measurement is mentioned as east to west 50 feet, north to south 41 feet. If at all the General Power of Attorney holder of defendant No. 3 sold only portion of 494C and retained remaining portion why he has not mentioned the actual extent regarding retention of remaining portion is not explained by the plaintiff. On perusal of the document Ex.P31 copy of award in Civil Miscellaneous Petition No. 81/2003 it would go to 76 O.S.No.3176/2012 show that in that case the respondent (defendant No.
2) has taken contention that he has sold all the sites to the purchasers. The Arbitral Tribunal has not made the purchasers as parties to the proceedings. It is not the contention of the plaintiff is that the defendant No. 3 after recovery of possession from the purchasers resold the property to the plaintiff. In O.S.No.8507/2006 the General Power of Attorney holder of the defendant No. 3 has not taken any such contention that he after recovering the possession of the property from the present defendant No. 1 has sold the same property to the present plaintiff. In O.S.No.8507/2006 the defendant No. 3 has not taken any such contention that the property bearing No. 494/2 measuring 50 x 30 is not in existence. Even though the suit in O.S.No.8507/2006 filed subsequent 77 O.S.No.3176/2012 to the document Ex.P1 there is no whisper regarding the sale deed dated 22.8.2006 made in O.S.No.8507/2006. If at all the property which was sold by defendant No. 3 in favour of the present plaintiff is the same property involved in O.S.No.8507/2006 in that event the defendant No. 3 would have pleaded the same in the plaint. In the absence of any such pleadings in O.S.No.8507/2006 itself indicates that the property bearing site No. 494/2 is entirely different than that of the 34 sites mentioned in Arbitral award.
22. The 1 st defendant has produced several documents in order to show her possession over the property bearing site No. 494/2. The document Ex.D1(a) is the sale deed dated 7.11.2002 executed by 2 nd defendant in favour of the 1 st defendant in respect 78 O.S.No.3176/2012 of property bearing site No. 494/2 measuring east to west 50 feet, north to south 30 feet bounded towards east by road, west by private property, north by property No. 494/1, south by property No. 494/3. The document Ex.D3 is the Khatha certificate, Ex.D4 is the certified copy of property extract of the year 2006-2007, Ex.D5 is the property extract of the year 2007-2008. Soon after purchase of the property bearing site No. 494/2 the Khatha of this property changed in the name of 1 st defendant. The 1 st defendant has produced the document Ex.D 9 encumbrance certificate, Ex.D15 property tax paid receipts from the year 2004 to 2018. By combined reading of the document Ex.D1, Ex.D13, Ex.D4, Ex.D5 would indicates that the defendant No. 2 as a General Power of Attorney holder of defendant No. 3 sold the 79 O.S.No.3176/2012 property bearing site No. 494/2 and handed over the possession of site to the 1 st defendant in the year 2002 itself. The 1 st defendant also produced the document Ex.D11 sanction plan issued by the Yelahanka BBMP in the year 2011. The present defendant No.1 who has filed the suit in O.S.No.7668/2006 against defendant No. 2 and 3 in that suit produced the certified copy of sale deed dated 7.11.2002, Khatha certificate, tax paid receipts, encumbrance certificate, loan certificate and based on these documents the court held that the plaintiff establishes her possession over the property bearing site No. 494/2 and granted permanent injunction against the defendant No. 2 and 3. The judgment and decree in O.S.No.7668/2006 shows that the 1 st defendant is in possession and enjoyment of the property bearing site No. 494/2 since from the year 80 O.S.No.3176/2012 2002. Even in O.S.No.8507/2006 filed by the 3 rd defendant against the present defendant No. 1 it is held that the 3 rd defendant was not in possession of the property bearing site No. 494/2. On that ground also by observing that without the prayer of recovery of possession mere suit for declaration is not maintainable the suit came to be dismissed. The observations made in O.S.No.8507/2006 and O.S.No.7668/2006 clearly shows that the defendant No. 3 was not in possession of the property bearing site No. 494/2. Since the existence of property bearing site No. 494/2 is proved in previous suits in O.S.No.7668/2006 and O.S.No.8507/2006 the 1 st defendant need not again prove the existence of site No. 494/2. The plaintiff is claiming the right over suit 'A' schedule property by contending that the suit 'A' schedule property is in 81 O.S.No.3176/2012 existence in the same place where the 1 st defendant has constructed the house. The document produced by the 1 st defendant which is marked at Ex.D1 to Ex.D29 would go to show that the 1 st defendant is in continuous possession and enjoyment of the property bearing site No. 494/2 measuring east to west 50 feet, north to south 30 feet since from the date of purchase on 7.11.2002. The contention of the plaintiff is that the 1 st defendant encroached on the northern portion of suit 'A' schedule property in the month of March and April 2012 is not acceptable because there is number of documents on the side of 1 st defendant to show that she is in possession of property bearing site No. 494/2 since 2002.
23. The learned counsel for the plaintiff argued that the plaintiff has proved the boundaries of 'A' schedule 82 O.S.No.3176/2012 property. He argued that DW1 in her cross-examination admitted that the plaintiff has mentioned the same boundaries as mentioned in Ex.P1 sale deed in her plaint. He argued that PW1 in her cross-examination has clearly deposed that towards east of suit schedule property there exists road, towards west there is private property and towards north property in site No. 494A and towards south remaining property of same site number. He argued that the boundary will prevail over the extent. He relied upon the decision reported in (1) AIR 1963 Madras 147 between Dharmakani Nadar Vs. Mahalingam Nadar Gopal Krishna to content that when there is dispute regarding the boundaries and extent the boundaries should prevail over extent. He relied upon the decision reported in ILR 1988 Kar 554 Narasimha Shastri Vs. Mangesh Devaru to contend that 83 O.S.No.3176/2012 the boundaries prevail over extent. He also relied upon the judgment of Hon'ble High Court in RFA No. 2110/2010 (Dec/inj) to contend that the boundaries prevail over the extent. I have gone through the decision cited by the learned counsel for the plaintiff. There is no dispute regarding the principles laid down by the Hon'ble High Court of Karnataka in these cited decisions. In the present suit the plaintiff has not produced any documents to show that towards northern side of the property which is now in possession of defendant No. 1 there exists site No. 494A. The plaintiff also not produced any documents to show that towards southern side of the property which his now in possession of 1 st defendant there exists the portion of property in site No. 494C. The arguments on the side of the learned counsel for the 84 O.S.No.3176/2012 plaintiff is that this court can look into xerox copy of layout plan which is at page No. 127 i.e., document No. 13 cannot be accepted because this document is not admissible in evidence as same is not marked. There is absolutely no document such as layout plan, sketch on the side of the plaintiff to show the exact boundary and measurement and in order to identify the existence of suit 'A' schedule property. The learned counsel for the 1 st defendant argued that according to the plaintiff she has purchased the property from the General Power of Attorney holder of defendant No. 3. He submitted that in this suit the plaintiff has not produced any such General Power of Attorney allegedly executed by defendant No. 3 in favour of C.V.L.Shastry. He relied upon the decision reported in AIR 1994 SC 853 to contend that 85 O.S.No.3176/2012 withholding of vital documents relevant to litigation is nothing but fraud on the court. In the present suit the plaintiff has not produced any General Power of Attorney in order to show that defendant No. 3 had executed the General Power of Attorney in favour of C.V.L.Shastry authorising him to sell the property bearing site No. 494B and 494C in favour of the plaintiff. PW1 in her cross-examination deposed that the defendant No. 3 has not directly executed the sale deed in her favour. It was his General Power of Attorney holder who executed the sale deed in her favour. But the plaintiff in order to substantiate the contention taken by her that C.V.L.Shastry as General Power of Attorney holder of defendant No. 3 executed sale deed in her favour, she has not produced the copy 86 O.S.No.3176/2012 of General Power of Attorney allegedly executed by defendant No. 3 in favour of C.V.L.Shastry.
24. The learned counsel for the 1 st defendant relied upon the decision reported in 1961 Mysore Law Journal 794 to contend that whether the document is said to have been signed by the particular person the signature of that person has to be proved before the document can be admitted in evidence. He relied upon the decision reported in AIR 1992 Bombay 387 to contend that the proof of contents of sale deed - executants of sale deeds not examined proof of signature of executants however offered. Held, that could not prove truth of contents of documents which could only be proved by executant. Therefore sale deed was not admissible in evidence in view of failure to examine executants. In the present suit the plaintiff 87 O.S.No.3176/2012 has not examined any witness including the General Power of Attorney holder of defendant No. 3 who executed the sale deed in favour of the plaintiff. The plaintiff neither examined the General Power of Attorney holder of Ex.P1 nor examined the witnesses of the document Ex.P1 sale deed. Under such circumstances mere production of the document Ex.P1 sale deed is not sufficient to hold that the boundaries and extent of land which is mentioned in Ex.P1 sale deed is proved.
25. It is the specific contention of the 1 st defendant is that she had purchased the site bearing No. 494/2 under registered sale deed dated 7.11.2002. The 1 st defendant has produced the document Ex.D28 certified copy of judgment which would go to show that the General Power of Attorney holder of defendant No. 3 88 O.S.No.3176/2012 who challenged her sale deed dated 7.11.2002 failed to prove that the registered sale deed dated 7.11.2002 is invalid document. Thus one thing is very clear that defendant No. 1 has proved the existence of her property bearing site No. 494/2 which is situated within the boundary towards east by road, west by private property, north by property bearing No. 494/1 , south by property No. 494/3. The learned counsel for the defendant No. 1 relied upon the decision reported in ILR 2003 Kar 3042 wherein it is held that the sale deed executed and registered on 7.6.1990 - 1982 sale deeds still pending for registration - which sale deeds shall prevail - it was held that 1982 sale deeds having been duly registered irrespective of the date of registration relate back to the date of this execution and not subsequent sale deeds executed by the same 89 O.S.No.3176/2012 vendors in regard to the same lands on 7.6.1990 will not convey any title to the subsequent purchasers. The principles of this cited decision is aptly applicable to the present case because the defendant No. 2 as a General Power of Attorney holder of defendant No. 3 executed the sale deeds as per Ex.D1(a) in favour of the 1 st defendant with respect to site No. 494/2 on 7.11.2002. Now the plaintiff who has taken contention that she has purchased the site bearing No. 494B and 494C under registered sale deed dated 22.8.2006 executed by General Power of Attorney holder of defendant No. 3 in her favour sought relief that any title derived in any manner by the 1 st defendant through and under 2 nd defendant is void ab initio and not binding on the plaintiff so far as the schedule 'A' property is concerned. On perusal of the 90 O.S.No.3176/2012 document Ex.D1 sale deed and on perusal of the Khatha certificate, Khatha extract, sanction plan for building construction, property tax paid receipts and the copy of the judgment and decree in O.S.No.8507/2006 and O.S.No.7668/2006 are all shows that the 1 st defendant who is in possession of property bearing site No. 494/2 but the plaintiff is claiming that this property bearing site No. 494/2 is belongs to her which is site No.494B. Since the very contention of the plaintiff would go to show that she is claimig site No. 494/2 as her site No. 494B the sale deed as per Ex.D1(a) which was much earlier than the sale deed dated 22.8.2006 prevails. More than that the 1 st defendant has produced the certified copy of Ex.D 28 certified copy of judgment in O.S.No.8507/2006 wherein it is held that the 3 rd defendant failed to prove 91 O.S.No.3176/2012 registered sale deed dated 7.11.2002 is invalid document.
26. Defendant No. 2 as a General Power of Attorney holder of defendant No. 3 executed the sale deed as per Ex.D1(a) in favour of defendant No. 1 in respect of site No. 494/2. On perusal of the document Ex.P31 copy of the award the claimant of that case, i.e., defendant No. 3 in present suit has not taken any such contention that the site No. 494B and site No. 494/2 are one and the same. Admittedly no Arbitral award passed in respect of site No. 494/2. In other words site No. 494/2 is not included in 34 sites mentioned in arbitral award. No doubt as per Ex.P31 Arbitral award it is held that the claimant (defendant No. 3) has not issued any General Power of Attorney to the respondent (defendant No. 2) in respect of 34 sites 92 O.S.No.3176/2012 described in the schedule to the claim statement and he continues to be the owner of those sites. On perusal of the arbitral award the site bearing No. 494/2 is not included in these 34 sites. The plaintiff in her plaint para 8 mentioned the numbers, dimensions and boundaries of 34 sites but there is no such mention regarding site No. 494/2 purchased by the 1 st defendant. The document Ex.P31 would go to show that the defendant No. 3 was aware of the fact that defendant No. 2 who formed the layout in Sy.No. 33/1 has sold all the sites in that survey number. While answering point No. 7 in the arbitral award the Arbitral Tribunal held that even though claimant is entitled to a declaration as against the respondent that he has not given General Power of Attorney in favour of the respondent in respect of the 34 sites shown in 93 O.S.No.3176/2012 the claim statement and that he continues to be the owner thereof no declaration that sale deeds executed by the respondent in favour of others shown as respondent No. 2 to 34 are null and void can be given as those purchasers are not and could not be made parties to these proceedings. Likewise no permanent injunction as sought for against them can be granted. Thus one thing is clear that the Arbitral Tribunal observed that the respondent / defendant No. 2 already executed the sale deeds in favour of others in respect of Sy.No. 33/1. There is absolutely no evidence on the side of the plaintiff to show that as on the date of execution of sale deed as per Ex.P1 defendant No. 3 or the General Power of Attorney holder of defendant No. 3 was in possession of the property bearing site No. 494B and 494C. Based on this arbitral award even 94 O.S.No.3176/2012 though the General Power of Attorney holder of defendant No. 3 has filed the suit in O.S.No.8507/2006 for cancellation of sale deed dated 7.11.2002 executed by defendant No. 2 in favour of defendant No. 1 the suit came to be dismissed on merits. Thus it is confirmed that the property bearing site No. 494/2 was not included in the 34 sites described in arbitral award. The document produced by the defendant No. 1 such as sale deed, property register extract, Khatha certificate, property tax paid receipts, approved plan for construction of the building, electricity paid bills, water charges paid receipts are all would go to show that the defendant No. 1 who taken the possession of the property bearing site No. 494/2 on 17.11.2002 from defendant No. 2 continuously in possession of property bearing site No. 494/2 of which now the plaintiff 95 O.S.No.3176/2012 claiming as her site No. 494B. The plaintiff has not produced any document to show that after the Hon'ble Arbitral Tribunal passed award as per Ex.P31 the defendant No. 3 has recovered the possession of 34 sites mentioned in this arbitral award from the purchasers. There is also no document on the side of the plaintiff to show that in view of arbitral award the defendant No. 3 got measured the lands in order to identify 34 sites mentioned in arbitral award. There is absolutely no evidence on the side of the plaintiff to show that as on the date of execution of sale deed as per Ex.P1 the defendant No. 3 or his General Power of Attorney holder were in possession of the property bearing site No. 494B and 494C. The plaintiff has not produced any documents such as layout plan, sketch or any other authenticated documents to show 96 O.S.No.3176/2012 existence of site No. 494B and 494C and its measurement and boundaries. The plaintiff in para No. 8 of the plaint has mentioned 34 site numbers, its dimensions and measurement. She has not made known to the court who has given these particulars to her. On perusal of the plaint averments in O.S.No.8507/2006 it would go to show that the same site numbers, dimensions, boundaries are mentioned by the General Power of Attorney holder of defendant No. 3 in that suit. The plaintiff has produced the document Ex.P36 certified copy of memorandum of appeal in RFA No. 2081/2011 filed for challenging the judgment and decree in O.S.No.8507/2006 which shown that the appellant in that case also by mentioning the same boundaries, extent and numbers of 34 sites contended that he has not executed any sale deed in 97 O.S.No.3176/2012 respect of site No. 494/2. As already observed that in O.S.No.8507/2006 the present defendant No.3 who filed that suit has not taken any such specific contention that site No. 494/2 is equivalent to site No. 494/B. No doubt the plaintiff in O.S.No.8507/2006 has taken contention that the site No. 494/2 is one of the site out of 34 sites mentioned in arbitral award. But he has not made it clear that which site is equivalent to site No. 494/2. Since it is proved that defendant No. 1 is continuous possession and enjoyment of the property bearing site No. 494/2 from 7.11.2002 that itself indicates that defendant No. 3 or his General Power of Attorney holder was not in possession of the property bearing site No. 494/2 as on the date of execution of sale deed as per Ex.P1 in favour of the plaintiff on 22.8.2006. the plaintiff now by contending that 98 O.S.No.3176/2012 defendant No. 1 has encroached the 'B' schedule property, i.e., northern portion of 'A' schedule property, i.e., site No. 494B has filed this suit. That means the plaintiff is claiming the property in site No. 494/2 belongs to the 1 st defendant claiming it as site No.494B. Since it is already proved that the defendant No. 1 is the absolute owner in possession of the property bearing site No.494/2 the plaintiff cannot derive any title over this property which is in possession of the 1 st defendant. The plaintiff has not produced any document to identify 'A' schedule property and existence of 'A' schedule property. The plaintiff has failed to prove that she is the owner of 'A' schedule property. Hence I answer issue No. 1 and 2 answered in the Negative.
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27. Issue No. 3: The defendant No. 1 has taken contention that the sale transaction between the plaintiff and defendant No. 3 is fraudulent and collusive. DW1 in her examination-in-chief has deposed that as per the arbitral award relied by the plaintiff the layout was formed in respect of land measuring 8 acres in Sy.No. 33/1 and the sites were sold in favour of various intending site purchasers in the year 2002 itself. She states that the site No. 494/2 was sold by the 2 nd defendant in her favour and put her in possession of the said site in the year 2002 itself and site No. 494/3 was sold in favour of some other intending site purchasers. Both the sites are measuring 50 x 30 feet each but the plaintiff fraudulently claiming same sites, i.e., No. 494B and 494C showing wrong measurement east to west 50 feet 100 O.S.No.3176/2012 and north to south 41 feet. DW1 has deposed that the vendor of the plaintiff himself had filed suit against her in O.S.No.8507/2006 seeking cancellation of sale deed dated 7.11.2002. The said suit was dismissed on merits on 24.9.2011 and confirmed her sale deed dated 7.11.2002 is valid sale deed and further held that without seeking possession the suit of the present defendant No. 3 is not maintainable. DW1 has deposed that the suit in O.S.No.8507/2006 was filed on 22.9.2006 but before the cancellation of sale deed dated 7.11.2002 the plaintiff has entered into 2 nd fraudulent transaction with the defendant No. 3 on 22.8.2006. Therefore it is crystal clear that the defendant No. 3 had the knowledge of sale deed dated 7.11.2002 and from 2002 onwards this defendant No. 1 is in possession and enjoyment of site No. 494/2 but 101 O.S.No.3176/2012 the defendant No. 3 without taking back the possession from the 1 st defendant without due process of law he had executed another sale deed in favour of the plaintiff and now the plaintiff on the basis of the fraudulent transaction is illegally claiming rights over the property exclusively belongs to the 1 st defendant. During the course of cross-examination of DW1 she admitted the suggestion that the plaintiff is claiming right over 'A' schedule property measuring east to west 50 feet and north to south 41 feet. DW1 also admitted the suggestion that the schedule which is shown in the plaint and the schedule which is mentioned in Ex.P1 sale deed are one and the same. DW1 has admitted the suggestion that as per Ex.D1 sale deed the defendant No. 2 who was the General Power of Attorney holder of defendant No. 3 sold the site 102 O.S.No.3176/2012 bearing No. 494/2 measuring east to west 50 feet, north to south 30 feet in her favour. No doubt DW1 in her cross-examination admitted the suggestion that the site number and measurement and boundaries which are mentioned in Ex.P1 sale deed and Ex.D1 sale deed are entirely different than that of which is mentioned in Ex.D1 sale deed. DW1 claimed that she is the owner of property bearing site No. 494/2 shown in Ex.D1 sale deed. Iin this suit the 1 st defendant has produced the document Ex.D3 Khatha confirmation letter issued by Byatarayanapura CMC in respect of site No. 494/2. She has produced the document Ex.D9 encumbrance certificate in respect of site No. 494/2 from different periods from the year 1.6.1989 to 21.11.2002, 1.4.2002 to 31.3.2006, 1.4.2003 to 31.3.2004, 1.4.2006 to 10.8.2006, 1.4.2004 to 103 O.S.No.3176/2012 19.10.2007 and 1.1.2009 to 20.5.2007. the 1 st defendant has also produced the document Ex.D12 and Ex.D13 property tax paid receipts from the year 2004 to 2017-18. The defendant No. 1 also produced the document Ex.D14 letter issued by Andhra Bank Housing Finance Limited of the year 2003 to show that she has obtained loan in order to purchase the site bearing No. 494/2. More than that the 1 st defendant has produced the certified copy of judgment in O.S.No.8507/2006 which is marked at Ex.D28 and certified copy of judgment in O.S.No.7668/2006 which is marked at Ex.D29 which would go to show that from the date of purchase from the year 2002 the 1 st defendant is in lawful possession and enjoyment of property bearing site No. 494/2. Now in the present suit the plaintiff is claiming the property which is in possession of 1 st 104 O.S.No.3176/2012 defendant as her property claiming that it is numbered as site No. 494B. In previous suit in O.S.No.8507/2006 the very General Power of Attorney holder of defendant No. 3 who has taken contention that the document Ex.D1 sale deed dated 7.11.2002 executed by the defendant No. 2 in favour of defendant No. 1 is null and void, has failed to prove the same. The court in O.S.No.8507/2006 held that the plaintiff of that suit (defendant No. 3) of the present suit has failed to prove that registered sale deed dated 7.11.2002 executed by the defendant No. 2 in favour of defendant No. 1 is invalid document. PW1 in her cross- examination has deposed that she is not claiming any right over site No. 494/2. She pleaded her ignorance whether defendant No. 3 has filed suit in O.S.No.8507/2006 against the 1 st defendant for 105 O.S.No.3176/2012 cancellation of sale deed dated 7.11.2002. The very contention of the plaintiff that the site No. 494B is situated in the place where the defendant No. 1 has constructed her house indicates that the plaintiff is claiming that site No. 494B is situated in the place where the 1 st defendant has constructed the house in site No. 494/2. If at all the defendant No. 3 was not aware that the defendant No. 1 was not in possession of the property in site No. 494/2 he would have not filed such a suit in O.S.No.8507/2006 for cancellation of sale deed dated 7.11.2002. The main contention of defendant No. 3 in O.S.No.8507/2006 is that the property bearing site No. 494/2 is one of the 34 sites which is mentioned in arbitral award but the defendant No. 3 has failed to prove the same in O.S.No.8507/2006 and ultimately the suit came to be 106 O.S.No.3176/2012 dismissed on merits. If at all the defendant No. 3 was lost his right over site No. 494/2 after selling the same to the plaintiff what made him to file suit for cancellation of sale deed dated 7.11.2002 in O.S.No.8507/2006 is not explained by the plaintiff. In O.S.No.8507/2006 the present plaintiff was not impleaded as party. The defendant No. 3 through his General Power of Attorney holder after selling the property in site No. 494B and 494C ventured to file suit in O.S.No.8507/2006 by contending that the site No. 494/2 was one of the site belongs to him which is mentioned in arbitral award. The very contention of the plaintiff in the present suit that the 1 st defendant has encroached the northern portion of site No. 494C, i.e., site No. 494B itself indicates that the plaintiff is claiming her right over the property bearing site No. 107 O.S.No.3176/2012 494/2 which belongs to the 1 st defendant. The plaintiff much relied upon the document Ex.P9 sanction plan issued by CMC, Byatarayanapura on 16.6.2006 and licence issued by CMC marked at Ex.P10. For the obvious reasons best known to the plaintiff soon after she obtained the sanction plan and building licence she was not constructed any building. The 1 st defendant has produced the document Ex.D11 sanction plan issued by the BBMP in respect of site No. 494/2 in the year 2009 and modified plan dated 5.11.2011. The document Ex.D11 shows that much prior to filing of this suit by the plaintiff the 1 st defendant has obtained sanction plan and started construction in her property bearing site No. 494/2. The judgment in O.S.No.7668/2006 which is marked at Ex.D29 shows that the defendant No. 1 was in possession of the 108 O.S.No.3176/2012 property bearing site No. 494/2 which was surrounded by the compound wall. The plaintiff has not produced any document to show that she was constructed the compound wall to the property bearing site No. 494B and 494C. The plaintiff much relied upon the document Ex.P32 development charges paid by the defendant No. 3 on 7.2.2003 in respect of property bearing site No. 494B and the document Ex.P33 property extract of site No. 494B. These two documents also not helpful to the plaintiff's case. The plaintiff is now claiming the property of the 1 st defendant which is numbered as site No. 494/2 as her property bearing site No. 494B. If at all the property bearing site No. 494/2 and 494/B was one and the same the defendant No. 3 who has filed the suit in O.S.No.8507/2006 would have pleaded that the site 109 O.S.No.3176/2012 bearing No. 494B and 494/2 are one and the same. At one stretch the defendant No. 3 filed suit in O.S.No.8507/2006 for cancellation of sale deed dated 7.11.2002 in another stretch the vey same General Power of Attorney holder of the defendant No. 3 who filed the suti in O.S.No.8507/2006 for cancellation of sale deed was executed the sale deed dated 22.8.2006 in favour of the plaintiff with respect to the site No. 494B and 494C. The very act of defendant No. 3 who filed the suit subsequently after execution of sale deed dated 22.8.2006 in favour of the plaintiff would indicates that the sale transaction between the plaintiff and defendant No. 3 is fraudulent and collusive. In the arbitral award as per Ex.P31 there is clear finding on point No. 7 and 8 that no declaration of sale deeds executed by respondent in favour of others shown as 110 O.S.No.3176/2012 respondent No. 2 to 32 are null and void can be given as those purchasers are not and could not be made parties to these proceedings. Likewise no permanent injunction as sought for against them can be granted. The defendant No. 3 who knows that all the 34 sites shown in the claim petition was already sold by the respondent / defendant No. 2. The defendant No. 3 has not made any efforts to recover the possession of 34 sites mentioned in arbitral award. Admittedly in arbitral award the site No. 494/2 is not mentioned. The 1 st defendant has purchased site No. 494/2 from defendant No. 2 who was represented as General Power of Attorney holder of defendant No. 3. in judgment in O.S.No.8507/2006 there is clear finding that the defendant No. 2 was not in possession of property bearing site No. 494/2. As the plaintiff is now 111 O.S.No.3176/2012 claiming the same site where defendant No. 1 has constructed the house as suit 'A' schedule property the document produced by the 1 st defendant shown that the 1 st defendant is in possession of the property bearing site No. 494/2 from the year 2002. The 3 rd defendant without taking back the possession of the property bearing site No. 494B and 494C and without making measurement to identify the property bearing site No. 494B and 494C without there being possession of the site No. 494B and 494C executed sale deed dated 22.8.2006 in favour of the plaintiff which his nothing but fraudulent and collusive transaction. The plaintiff has proved issued No. 3. Hence I answered issue No. 3 in the Affirmative.
28. Issue No. 4: The plaintiff has taken contention that the title derived by the 1 st defendant through 112 O.S.No.3176/2012 defendant No. 2 is void ab initio and not binding on the schedule 'A' property. While discussing issue No. 1 and 2 it is already held that the plaintiff has fails to prove the existence and identity of 'A' schedule property and also failed to prove that she is the owner of 'A' schedule property. On perusal of the document Ex.P31 Arbitral award it would go to show that defendant No. 3 executed 7 General Power of Attorneys in favour of defendant No. 2. The evidence on record also would go to show that defendant No. 2 who has sold all the sites formed in Sy.No. 33/1. In the judgment in O.S.No.8507/2006 it is observed that the plaintiff of that suit failed to prove that he was not given General Power of Attorney in favour of S.N.Krishnaiah Shetty (defendant No. 2) in respect of the property bearing site No. 414/2. In the present 113 O.S.No.3176/2012 suit also the plaintiff who has taken contention that defendant No. 2 has no authority to sell the property in favour of defendant No. 1 has not produced any documents such as General Power of Attorney, copy of approved plan in respect of Sy.No. 33/1. In arbitral award as per Ex.P31 also there is no mention regarding the property site No. 494/2. in the present suit first of all the plaintiff has failed to prove that the property mentioned in B schedule is part and parcel of 'A' schedule property. The 1 st defendant has produced several documents marked at Ex.D3 to Ex.D29 to show that she is in possession of property bearing site No. 494/2 within the boundaries mentioned in her sale deed as per Ex.D1(a). The 1 st defendant purchased the property bearing site No. 494/2 under Ex.D1(a) on 7.11.2002. The learned counsel for defendant No. 1 114 O.S.No.3176/2012 has relied upon the decision reported in AIR 1984 NOC 80 to contend that section 31 of Specific Relief Act does not give right to sue to all persons for cancellation of instrument. Such right is available only to persons who have a reasonable apprehension that such instrument if represented may cause him serious injury and against whom the wrong instrument is void. He relied upon the decision reported in ILR 2015 Kar 3554 wherein it is held that since the plaintiff has no title to the property and he is not a party to the sale deed the sale deed is not binding on him. The declaration that the particular sale deed is not binding on the plaintiff cannot become necessary only when the person who is interested in the property but is a signatory to the document and some other person purportes to convey the said title. The plaintiff would 115 O.S.No.3176/2012 in no way be bound by the document though registered when he is not a party to the said instrument. In such an event he could seek declaration. If the plaintiff has no right or interest in the property the question of granting declaration that the sale allegation is not binding upon him would not arise. In my humble view the principles of these two citations are applicable to the present case. The plaintiff laying claim on the property belongs to the 1 st defendant in site No.494/2 by contending that it is belongs to the plaintiffs property in site No. 494B. The earlier judgments in O.S.No.8507/2006 and O.S.No.7668/2006 would go to show that defendant No. 1 was in possession of property site No. 494/2 from the date of purchase from 7.11.2002. Under such circumstances in the absence of evidence to show that 116 O.S.No.3176/2012 the defendant No. 3 was taken back the possession properties from the purchasers it cannot be held that in the year 2006 the defendant No. 3 had valid title and possession to sell the property bearing No. 494B and 494C in favour of the plaintiff.
29. The plaintiff has not produced any copy of General Power of Attorneys to show that defendant No. 3 was not executed any General Power of Attorney in favour of defendant No. 2 in order to sell the property bearing site No. 494/2. In Ex.P31 arbitral award also there is no mention regarding the site No. 494/2. The 34 sites which is mentioned in Ex.P31 arbitral award does not cover the site No. 494/2. While discussing issue No. 1 and 2 I held that the plaintiff has failed to prove the existence and identity of 'A' schedule property and failed to prove she is the owner of 'A' 117 O.S.No.3176/2012 schedule property. The plaintiff is not the party to document Ex.D1 sale deed executed by defendant No. 2 in favour of defendant No. 1. The plaintiff cannot challenge the sale deed executed by defendant No. 2 in favour of defendant No. 1 as she was not the executant of sale deed, since defendant No. 3 has failed to prove in O.S.No.8507/2006 that sale deed dated 7.11.2002 was invalid document, under such circumstances the plaintiff who claiming her right under defendant No. 3 is estopped from claiming that the title derived by defendant No. 1 through defendant No. 2 is null and void. In O.S.No.8507/2006 it is already held that the sale deed dated 7.11.2002 is not invalid document. The plaintiff has failed to prove issue No. 4. Hence I answered issue No. 4 in the Negative.
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30. Issue No. 5: While discussing issue No. 1 and 2 I held that the plaintiff has failed to prove existence and identify of 'a' schedule property and also failed to prove that she is the owner of 'A' schedule property. The findings given in O.S.No.8507/2006 and O.S.No.7668/2006 is sufficient to hold that defendant No. 1 is in possession of the property bearing site No. 494/2 as she was purchased the same under registered sale deed dated 7.11.2002. the 1 st defendant has also produced several documents such as Khatha confirmation letter, tax paid receipts, property register extract, encumbrance certificate, water charge paid receipts, sanction plan, letter issued by KPTCL, bills and receipts of BESCOM, receipts for having paid amount to Balaji Krupa Residents Association, telephone bills which were all marked as Ex.D3 to 119 O.S.No.3176/2012 Ex.D26. The contention of the plaintiff is that the defendant has encroached the suit 'B' schedule property in the month of March and April 2012 is not acceptable. There is sufficient document on the side of the 1 st defendant to show that she is in possession of property bearing site No. 494/2 since from the year 2002, i.e., after he purchased the property from the 2 nd defendant under registered sale deed dated 7.11.2002. The plaintiff has failed to prove that the 1 st defendant has encroached over 'B' schedule property belongs to the plaintiff. Hence I answered issue No. 5 in the Negative.
31. Issue No. 6: The defendant No. 1 has taken contention that the suit of the plaintiff is barred by principles of resjudicata on the ground that this court already decided the issue regarding the title of 120 O.S.No.3176/2012 defendant No. 1 in O.S.No.8507/2006. It is the contention of the 1 st defendant is that since the suit in O.S.No.8507/2006 came to be dismissed on merits and the suit in O.S.No.7668/2006 came to be decreed against the defendant No. 2 and 3, the present suit filed by the plaintiff is barred by the principles of resjudicata. The learned counsel for the 1 st defendant has relied upon the decision reported in (1) ILR 2009 Kar 2105 (2) 2017(2) AKR 244 (3) AIR 2017 SC 3440 (4) 2017(2) AKR 426 (5) 2016(1) AKR 220 (6) ILR 2009 Kar 2015 and submitted that the principles of resjudicata and the issue of estoppal applies to the present case as the court already passed judgment and decree in O.S.No.8507/2006 and in O.S.No.7668/2006.
32. On the other hand the learned counsel for the plaintiff submitted that the plaintiff is not party in suit 121 O.S.No.3176/2012 in O.S.No. 8507/2006 and O.S.No.7668/2006. He argued that the subject matter of the suits in O.S.No.8507/2006 and O.S.No.7668/2006 is entirely different from the present suit. He submitted that the suit property in O.S.No.8507/2006 and O.S.No.7668/2006 is mentioned as property bearing site No. 494/2 but in the present suit the property is bearing site No. 494B and 494C. He argued that since the subject matter of the suit in O.S.No.8507/2006 and present suit is entirely different and the parties are also not same and as the plaintiff was not party to the earlier suits the principles of resjudicata does not applies to the present suit. He relied upon the judgment reported in (1) AIR 2016 SC 564 (2) AIR 2015 SC 3826 (3) (2014)5 SCC 75 (4) (2011)3 SCC 408 122 O.S.No.3176/2012 (5) AIR 2005 Kar 70 (6) ILR 1989 Kar 2138 and (7) 1976 SCC Online Kar 29.
33. I have appreciated the rival contentions taken by the parties. The provision under section 11 of C.P.C. is very clear that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly and substantially common issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been substantially raised, and has been heard and finally decided by such court.
34. Admittedly the present plaintiff was not party in earlier suits in O.S.No.8507/2006 and in 123 O.S.No.3176/2012 O.S.No.7668/2006. The suit property involved in suit in O.S.No.8507/2006 and O.S.No.7668/2006 are the property bearing site No. 494/2 measuring east to west 50 feet, north to south 30 feet. The property involved in the present suit is the property bearing site No. 494B and 494C measuring east to west 50 feet and north to south 41 feet. The earlier suit in O.S.No.8507/2006 filed by the General Power of Attorney holder of defendant No. 3 against the present defendant No. 1. The issues framed in earlier suit is with respect to the validity of sale deed dated 7.11.2002 executed in favour of the 1 st defendant. In O.S.No.8507/2006 no such issue was framed for declaration of ownership and for recovery of possession. No doubt in O.S.No.8507/2006 the court has given negative findings on issue No. 1 holding that 124 O.S.No.3176/2012 the plaintiff of that suit failed to prove that the registered sale deed dated 7.11.2002 was invalid. In this suit this court has framed several issues including the issues regarding ownership of suit 'A' schedule property, existence and identity of suit schedule 'A' property and other issues regarding whether the transaction between the plaintiff and defendant No. 3 is fraudulent and collusive and whether the title derived by defendant No. 1 through defendant No. 2 is void ab initio, etc. Thus on perusal of the certified copy of judgment in O.S.No.8507/2006 as per Ex.P28 it would go to show that the issues involved in the present suit and earlier suit in O.S.No.8507/2006 is entirely different. In other words the issues raised in these two issues are not one and the same. No doubt the defendant No. 3 in O.S.No.8507/2006 failed to 125 O.S.No.3176/2012 prove that the sale deed dated 7.11.2002 executed by 2 nd defendant in favour of defendant No. 1 is invalid document. It can be said that to the extent of the validity of sale deed dated 7.11.2002 the plaintiff is estopped from claiming that the sale deed is not binding on her. But in this suit the plaintiff not only claimed that she is the absolute owner of suit schedule property by virtue of sale deed dated 28/8/2006 but also sought for the relief of direct 1 st defendant to handover the vacant possession of 'B' schedule property and also sought for the relief of permanent injunction to restrain the defendant No. 1 and 2 from interfering with her peaceful possession and enjoyment of suit schedule 'A' property. While discussing issue No. 1 and 2 this court come to the opinion that the plaintiff has failed to prove the existence and identity of 'A' 126 O.S.No.3176/2012 schedule property and also failed to prove that she is the owner of 'A' schedule property. But since the property involved in this suit is site No. 494B and 494C and property involved in O.S.No.8507/2006 is site No. 494/2 and the plaintiff of the present suit is not the party in previous suits in O.S.No.8507/2006 and in O.S.No.7668/2006 it cannot be held that this suit is barred by the principles of resjudicata. More than that the plaintiff has produced the document Ex.P36 certified copy of Appeal memo which would go to show that RFA No.2081/2011 filed by the appellant challenging the judgment and decree in O.S.No.8507/2006 is still pending. Since there is appeal pending in RFA No. 2081/2011 it cannot be held that the judgment and decree passed in O.S.No.8507/2006 attained finality. On this ground 127 O.S.No.3176/2012 also it cannot be held that the suit of the plaintiff is barred by the principles of resjudicata. Hence I answer issue No. 6 in the Negative.
35. Issue No. 7: The defendant has taken contention that the plaintiff has not properly valued the suit and the court fee paid is insufficient. The plaintiff has filed this suit for the relief of declaration to declare that the plaintiff is the absolute owner of suit 'A' schedule property and consequent relief to declare that any title derived in any manner by the 1 st defendant through and under the 2 nd defendant is void ab initio and the same is not binding on the plaintiff in so far as the schedule 'A' property is concerned and praying to direct the 1 st defendant to hand over the vacant possession of 'B' schedule property and also prayed for the relief of permanent injunction restraining the 128 O.S.No.3176/2012 defendant No. 1 and 2 from interfering with the plaintiff's peaceful possession and enjoyment of suit 'A' schedule property. The plaintiff has valued the suit as per section 24(a) of the Karnataka Court Fees and Suit Valuation Act and the suit property valued at Rs.20,50,000/- by valuing on the basis of square feet for each square feet Rs.1000/-. The plaintiff has paid court fee of Rs.1,11,675/-. The 1 st defendant who has taken contention that court fee paid by the plaintiff is insufficient in order to substantiate the same the defendant No. 1 has not produced any documents and also not given any cogent evidence to show that the court fee paid by the plaintiff is insufficient. On perusal of valuation slip furnished by the plaintiff along with the plaint and calculation of court fee this court of the opinion that the court fee paid by the 129 O.S.No.3176/2012 plaintiff is sufficient so I find the court fee paid by the plaintiff is adequate. Hence I answered issue No. 7 in the Negative.
36. Issue No. 8: The 1 st defendant has taken contention that the suit of the plaintiff is barred by period of limitation. The learned counsel for the 1 st defendant argued that the earlier suit in O.S.No.8507/2006 was also dismissed on the ground that the said suit barred by period of limitation. I perused the document Ex.D 28 certified copy of judgment which shows that the suit in O.S.No.8507/2006 filed to declare the sale deed dated 7.11.2002 is null and void. Since in that suit the prayer sought for to declare the documents as null and void the court held that the said suit is barred by period of limitation as the suit was not filed within three years from the date of 130 O.S.No.3176/2012 execution of sale deed. The plaintiff has filed the present suit for the relief of declaration to declare that she is the absolute owner of suit schedule property and for recovery of possession of 'B' schedule property from the 1 st defendant. As per article 65 of the Limitation Act in order to file suit for recovery of possession of immovable property the period of limitation is 12 years as per article 64 of the Limitation Act to file suit for possession of immovable property the period of limitation prescribed is 12 years. In this suit the defendant No. 1 has not taken any such contention that she is the owner of property bearing site No. 494/2 by way of adverse possession. In this suit the plaintiff has taken contention that she is the absolute owner of suit schedule 'A' property bearing site No. 494B and 494C. On the other hand the 1 st defendant has taken 131 O.S.No.3176/2012 contention that she is the absolute owner and in possession of the property bearing site No. 494/2 for which the plaintiff is claiming the as the suit property. In order to file suit for declaration of ownership and for recovery of possession the period of limitation is 12 years. According to the plaintiff she acquired the ownership of the suit schedule property by virtue of sale deed dated 22.8.2006. The plaintiff has filed this suit in the year 2012 i.e., within six years from the date of registered sale deed dated 22.8.2006. Under such circumstances the suit filed by the plaintiff cannot be said that it is barred by period of limitation. The suit filed by the plaintiff for the relief of declaration and for recovery of possession and injunction is not barred by period of limitation. Hence I answer issue No. 8 in the Negative.
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37. Issue No. 9: The defendant No. 1 has taken contention that the suit of the plaintiff is liable to be rejected under Order 7 Rule 11 C.P.C. In this suit the learned counsel for the defendant has not pressed to take issue No. 9 as preliminary issue. This court already recorded the evidence on both the sides and this suit proceeded on merits. It is now settled principle of law is that while considering whether the plaint can be rejected or not it requires to consider only plaint averments. The court is not required to take into consideration the defence set up by the defendant in the written statement or other documents. Since in this suit evidence on both sides already recorded and after hearing on the main arguments and now it is for final judgment. At this stage this court of the opinion that this issue No. 7 133 O.S.No.3176/2012 does not survive for consideration. Hence I answer issue No. 9 as it does not survive for consideration.
38. Issue No. 10: the plaintiff has filed the suit praying to declare that the plaintiff is the absolute owner of suit 'A' schedule property by virtue of sale deed dated 22.8.2006 and also prayed to declare that any title derived in any manner by the 1 st defendant through and under 2 nd defendant is void ab initio and the same is not binding on the plaintiff in so far as schedule 'A' property is concerned and also prayed to pass judgment and decree directing the 1 st defendant to handover the vacant possession of schedule 'B' property and also prayed for the relief of permanent injunction against the 1 st and 2 nd defendant to restrain them from interfering with the plaintiff's peaceful possession and enjoyment of 'a' schedule property. While discussing 134 O.S.No.3176/2012 issue No. 1 this court held that the plaintiff has failed to prove the existence and identity of 'A' schedule property, while discussing issue No. 2 this court held that the plaintiff has failed to prove that she is the owner of 'A' schedule property, while discussing issue No. 4 this court held that the plaintiff has failed to prove that the title derived by 1 st defendant through 2 nd defendant is void ab initio and is not binding on 'A' schedule property, while discussing issue No. 5 this court held that the plaintiff has failed to prove that the 1 st defendant encroached over 'B' schedule property belongs to the plaintiff. In view of my findings on issue No. 1 to 5 the plaintiff is not entitled for the relief of declaration of ownership over 'A' schedule property and to declare that the title derived by the 1 st defendant through 2 nd defendant is void ab initio and 135 O.S.No.3176/2012 the same is not binding on the plaintiff. The plaintiff is also not entitled for the relief of recovery of possession of suit schedule 'B' property from defendant No. 1. the plaintiff has faile dto prove that in view of sale deed dated 22.8.2006 executed by the General Power of Attorney holder of 3 rd defendant she came in possession of suit schedule property. The plaintiff is not entitled for the relief of declaration, possession and permanent injunction as prayed in the plaint. Hence I answered issue No. 10 in the Negative.
39. Issue No.11: In view of my findings to the above issues, I proceed to pass the following:
ORDER The suit is dismissed.136 O.S.No.3176/2012
Parties shall bear their own cost.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in the open court on this the 16th day of January 2021.) (Mohan Prabhu ) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE Witnesses examined for the plaintiff/s :
PW1 - Indira Rajendran
Witness examined for the defendant/s :
DW1 - Lathamala
Documents marked for the plaintiff/s :
Ex.P1 - Sale deed
Ex.P2-5 - Khatha certificate and property register
extracts
Ex.P6 - encumbrance certificate
137 O.S.No.3176/2012
Ex.P7,8 - Tax register extracts form No. 3
Ex.P9 - Approved building plan
Ex.P10 - Plan sanction letter
Ex.P11,12 - Tax paid challan with application form copy Ex.P13 - Another tax paid challan Ex.P14-21 - Acknowledgments issued by BBMP Ex.P22-29 - certified copies of sale deeds Ex.P30 - certified copy of conversion order Ex.P31 - certified copy of arbitration award in C.Misc.81/2003 Ex.P32 - Betterment charges paid receipt Ex.P33 - Denabd register extract Ex.P34 - General Power of Attorney Ex.P35 - certified copy of application in RFA No. 2081/2011 Ex.P36 - certified copy of order sheet in RFA No. 2081/2011 Documents marked for the defendant/s :
Ex.D1 - Certified copy of sale deed dated 7.11.2002 138 O.S.No.3176/2012 Ex.D2 - Order dated 12.10.1999 Ex.D3 - Khatha certificate Ex.D4 - certified copy of Form No. 3 Ex.D5 - certified copy of Form No. 1 Ex.D6 - 2 Khatha certificates Ex.D7 - Form No. 1 Ex.D8 - Khatha given by BBMP Ex.D9 - 6 encumbrance certificates Ex.D10 - certified copy of water bill Ex.D11 - 2 plans Ex.D12 - Property extract Ex.D13 - 22 tax paid receipts Ex.D14 - 2 certificates given by Andhra Bank Ex.D15 - Statement given by BESCOM Ex.D16 - OM given by BESCOM Ex.D17 - 2 letters given by BESCOM Ex.D18 - 12 KEB bills Ex.D19 - certified copy of 9 KEB bills Ex.D20 - Bill pertaining to solar connection Ex.D21 - receipt of water bill Ex.D22 - 2 receipts given by BWSSB 139 O.S.No.3176/2012 Ex.D23 - 25 water bills Ex.D24 - 2 gas connection receipts Ex.D25 - 2 telephone bills Ex.D26 - telephone bill Ex.D27 - 6 photos out of which 4 certified copy extracts and 1 CD Ex.D28 - certified copy of judgment and decree in O.S.No.8507/2006 Ex.D29 - certified copy of judgment and decree in O.S.No.7668/2006 Ex.D30 - certified copy of order sheet in A.S.No.60/2008 Ex.D31 - Copy of complaint Ex.D32 - Adhar card Ex.D1(a) - sale deed Ex.D11(a) - Licence (Mohan Prabhu ) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.140 O.S.No.3176/2012
Judgment pronounced in the open court (vide separate detailed Judgment) ORDER The suit is dismissed.
Parties shall bear their own cost.
Draw decree accordingly.
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
141 O.S.No.3176/2012