Bangalore District Court
B.S. Dhananjaya vs Sri on 22 August, 2022
IN THE COURT OF THE XXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH-38), BANGALORE CITY.
:PRESENT:
Sri. Yashawanth Kumar, B.A.(Law), LL.B,
LI Addl. City Civil & Sessions Judge,
C/c XXXVII Addl. City Civil & Sessions Judge, (CCH-38)
Bengaluru City.
DATED: This the 22 nd day of August 2022
O.S.NO. 285/2008
PLAINTIFF/S B.S. Dhananjaya,
S/O. V.K.Sampath,
Abed about 26 years,,
R/ at. No.19, Sapthagiri Nivas,
6th Main, Palace Guttahalli,
Bengaluru- 560003.
Rep. By his mother & GPA
Holder Smt. B.K. Sharadha.,
(By Sri. P.V.S. Advocate)
Versus
DEFENDANT/S SRI ,S,K. Ghoouse Mohaddin
@ Aslam S.K.
S/o. Abdul Kareem,
Aged about 34 years,
No.26, Ist 'C' Main,
Behind HMT Bhavan,
Ganganagar Extn.,
Bangaluru-560032.
(By Sri. V.R.M. Advocate)
2 O.S.No. 285/2008
Date of Institution of the suit 07.01.2008
Nature of suit Suit for declaration and
permanent injunction.
Date of commencement 17.02.2011
of recording of evidence.
Date on which judgment 22.08.2022
was pronounced.
Total Duration. Years Months Days
04 07 15
C/c. XXXVII ACCJ, BANGALORE
3 O.S.No. 285/2008
JUDGMENT
This is a suit filed by the plaintiff for the relief of declaration that the registered sale deed dated; 13.10.2003 executed by Sri. Nanjundappa and his brothers in favour of the defendant in respect of the schedule property as illegal, void and not binding on the plaintiff; for permanent injunction restraining the defendant and any one claiming under him from alienating, leasing, Mortgaging or in any way dealing with the schedule property to 3rd parties; for permanent injunction restraining the defendant or anyone claiming under him from interfering with the peaceful possession and enjoyment of the schedule property by the plaintiff.
2. The case of the plaintiff in brief is as under:-
Sri. Nanjundappa S/o. Late Chikka Munishamappa and his brothers Sri. J.M.Gopal and Sri.J.M. Adinarayana were the owners of the 2 acres of land situated in Survey No. 97/1, Jakkur village, Yelahanka Hobli, Bengaluru North Taluk. Bengaluru. They have got converted the said land from Agriculture to non-agriculture/residential purpose as per the official memorandum dt: 18.09.1989. After conversion, they formed layout in it. Sri. Nanjundappa and his brothers 4 O.S.No. 285/2008 conveyed a site bearing No. 93 formed in Sy. No. 97/1 in the said layout, to plaintiffs father Sri. V.K.Sampath on 10.2.1995. As there was no registration of sites at that time, Nanjundappa and his brothers executed a GPA dt: 10.2.1995 in favour of the plaintiff's father V.K.Sampath authorising him to deal with the said site. On the same day, they have sworn to an affidavit confirming the receipt of the sale consideration amount and execution of GPA. On the basis of General Power of attorney dtd: 10.2.1995 , Sri. V.K. Sampath executed a Gift deed dtd: 6.10.1999 in favour of the plaintiff gifting the said site No. 93. As there was mistake in mentioning the details the earlier title deeds in the Gift deed dt: 6.10.1999, Sri.V.K. Sampath executed a Regd. Rectification deed dated 18.2.2006 in favour of the plaintiff correcting the mistake in the gift deed. The Katha in respect of the site No.93 was transferred to the name of the plaintiff by Byatarayanapura Nagar Sabha, Bengaluru and the plaintiff has paid up to-date tax to the said authority. The said site No.93 is described as the suit schedule property. The plaintiff was put in possession of the suit property on 6.10.1999, since then he is in continuous uninterrupted and peaceful possession and enjoyment of the 5 O.S.No. 285/2008 schedule property. He has constructed a compound wall around the same. The defendant who is a stranger to the schedule property, unnecessarily trying to interfere with the peaceful possession and enjoyment of the plaintiff. Such an attempt was made on 10.1.2007 and 19.1.2007. In respect of the same the plaintiff lodged complaint to the Yelahanka P.S. The police advised the plaintiff to approach the Civil Court. Accordingly, the plaintiff filed a suit for bare injunction against the defendant in O.S. No. 621/2007. The court granted interim order. The defendant appeared and filed his written statement. When the case was posted for plaintiff's evidence, the plaintiff could not attend the court as the said suit was transferred from CCH-19 to CCH40. Therefore on 18.12.2007, the said suit was dismissed for non-prosecution. Taking undue advantage of the dismissal of the suit, the defendant and his men again tried to interfere with the plaintiff's peaceful possession on 24.12.2007. In fact in the written statement filed by the defendant in O.S. No. 621/2007, he has taken up a contention that Sri. Nanjundappa and his brothers have sold the schedule property to him as per the registered sale deed dated: 13.10.2003. Immediately i.e., on 3.1.2008, the plaintiff 6 O.S.No. 285/2008 obtained the certified copy of the said sale deed. In fact the GPA executed by Nanjundappa and his brothers in favour of the plaintiff's father V.K. Sampath was coupled with interest and therefore irrevocable in nature. On the basis of the said GPA, he has executed a Gift deed dated 6.10.1999 in favour of the plaintiff and delivered possession of the property. Therefore on execution of the irrevocable GPA dated 10.2.1995 and execution of the Gift deed dated 6.10.1999, said Sri.Nanjundappa and his brothers ceased to be the owners of the schedule property. Therefore, the alleged Sale deed dtd:
13.10.2003 in favour of the defendant is illegal. However, on the basis of the illegal sale deed dtd: 13.10.2003, the defendant is trying to deal with the schedule property with third parties. Hence, this suit.
3. The defendant appeared and filed his written statement. He has denied the execution of the GPA by Sri. Nanjundappa and his brothers in favour of the plaintiff's father V.K. Sampath. Said V.K.Sampath had no right, title or interest to execute Gift deed in respect of the schedule property in favour of the plaintiff. The GPA and subsequent Gift deed does not convey any right, title or interest over the 7 O.S.No. 285/2008 schedule property. The Gift deed executed by Sri.V.K.Sampath in favour of the plaintiff is not a valid and genuine document. At the time of execution of alleged Gift deed, the plaintiff was a minor and he was incompetent to accept the gift. The alleged Rectification deed dated: 18.2.2006 has been executed after the lapse of more than 6 years. The reason for executing the rectification deed dated 18.2.2006 is that on 31.5.2000 the original owners of the suit schedule property revoked the said GPA dtd: 10.2.1995 executed in favour of Sri.V.K. Sampath. As per the recitals of GPA dtd: 10.2.1995, the schedule property could have been alienated only for consideration and it does not authorise V.K.Sampath to gift the said property in favour of others. The original GPA was handed over to the original owner at the time of revocation or cancellation of the GPA in the year 2000. It is denied that the Katha of the schedule property transferred to the name of the plaintiff and he has paid up to-date tax to the concerned authority. Though the alleged gift deed came into existence in the year 1999, the plaintiff has not taken steps till the year 2006 for transfer of Katha of the schedule property to his name. Only on 25.8.2006, the plaintiff has alleged to have remitted the 8 O.S.No. 285/2008 property tax under self-assessment scheme for the year 2006-
07. At that time it has come to the knowledge of the plaintiff that the defendant has purchased the schedule property on 13.10.2003 from its original owners and Katha transferred to his name in the year 2003-04. The property tax assessment register maintained by the Byatarayanapura Nagara Saba for the year 2003-04 clearly establishes that the defendant is the owner in possession of the schedule property. The defendant has remitted Rs. 23,296/- towards betterment charges to the Byaratayanapura Nagara Saba in the receipt dt: 18.3.2004. With an intention to defeat the right of the defendant over the schedule property, the plaintiff and his father colluded together and concocted a rectification deed dt: 18.2.2006. The defendant has purchased the schedule property after obtaining the relevant documents and verifying the same. The allegations that the defendant interfering with the possession of the suit property are false. The suit in O.S. No. 621/2007 was dismissed for non-prosecution as the plaintiff and his counsel failed to appear before the Court. The defendant is the owner in possession and enjoyment of the schedule property. In fact the plaintiff visited the schedule property in 9 O.S.No. 285/2008 the month of December 2003 and noticed that the defendant has put up compound wall around it. But the plaintiff did not question the defendant's right over the schedule property. The plaintiff ought to have filed the suit within 3 years from the date of coming to know about the sale deed in favour of the defendant. The suit failed beyond the period of 3 years from the knowledge of the sale deed is barred by limitation. The contention of the plaintiff that the GPA dtd: 10.2.1995 is coupled with interest and it is irrevocable in nature is false. The suit valuation is not proper and Court fee paid is insufficient.
4. On the basis of the above pleadings of the parties, the following issues have been framed by my learned predecessor.
1. Does the plaintiff prove that he is the absolute owner in possession of the suit schedule property on the basis of the Gift deed executed by Sri.V.K. Sampath dt: 6.10.1999 and Rectification deed dt: 18.2.2006 as contended in the plaint ?
2. Does the plaintiff prove that, the defendant is interfering in his possession over the suit schedule property without having any right, title or interest over the same?
3. Does the plaintiff prove that the sale deed executed by Sri. Nanjundappa and his brothers in favour of the defendant dt: 13.10.2003 is null and void and same is not binding on him ?
10 O.S.No. 285/2008
5. Does the defendant proves that he is the owner in possession of the suit schedule property as contended in Para 7 of the written statement?
6. Does the defendant prove that the suit is not properly valued and court fee paid on the same is insufficient?
7. Does the defendant prove that suit is bad for non-
joinder of necessary parties?
8. Does the defendant prove that suit is barred by law of limitation?
9. What order or decree?
Recasted Issue No.4 dated: 4.06.2022:
4. Does the defendant prove that General Power of attorney executed in favour of V..K. Sampath was revoked on 31.5.2000, so he has no right to execute any Gift Deed with respect to the suit schedule property?
5. In order to prove her case, the mother and GPA holder of the plaintiff has been examined as PW 1 and got marked documents at Ex.P1 to P19. Three more witnesses i.e., Pws- 2 to 4 were examined.
6. The defendant is examined himself as DW-1 and got marked documents at Ex. D-1 to D-18.
7. Heard the learned counsel for the plaintiff and learned counsel for defendant.11 O.S.No. 285/2008
8. My answer to the above issues are as under:
Issue No.1 : In the Affirmative
Issue No.2 : In the Affirmative
Issue No.3 : In the Affirmative
Recasted 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 : As per the final order,
for the following.
REASONS
9. Recasted Issue No.4:- There is no dispute that the children of late Chikka Munisamappa i.e., Sri.Nanjundappa, J.M. Gopal and J.M. Adi Narayana were the owners of 2 acres of land in Sy. No. 97/1, Jakkur village, Yelahanka Hobli, Bangaluru North Taluk. They got converted the said land from agriculture to non-agricultural/residential use as per the official memorandum dated 18.9.1989. Thereafter they formed a layout in it. The suit schedule site bearing No. 93 is one of the sites formed in the said layout.
10. It is the contention of the plaintiff that Sri. Sri.Nanjundappa, J.M. Gopal and J.M. Adi Narayana conveyed the suit schedule property i.e., site No. 93 to Sri.V.K.Sampath, the father of the plaintiff on 10.2.1995 by executing a GPA and the sale agreement dt: 10.2.1995 and by swearing an affidavit 12 O.S.No. 285/2008 on the same date; on the basis of the said GPA, the plaintiff's father V.K. Sampath executed a registered gift deed in favour of the plaintiff in respect of the suit schedule property on 6.10.1999. Subsequently a registered rectification deed was executed on 6.10.1999 by Sri.V.K.Sampath in favour of the plaintiff for rectification of the mistake in mentioning the date and registration number of the partition deed under which the vendors acquired the property.
11. The defendant does not deny the execution of the GPA by Sri.Nanjundappa, J.M. Gopal and J.M. Adi Narayana in favour of the plaintiff's father sri.V.K.Sampath. However, it is the contention of the defendant that the GPA alleged to have been executed in favour of V.K.Sampath does not confer any right, title or interest in his favour nor it authorises him to gift the suit schedule property in favour of others. Further, it is contended that the alleged GPA executed in favour of V.K.Sampath was revoked on 31.5.2000 and the original GPA executed in favour of V.K. Sampath was handed over to the owners I.e, Sri.Nanjundappa, J.M. Gopal and J.M. Adi Narayana at the time of revocation of GPA on 31.5.2000. 13 O.S.No. 285/2008
12. Ex.P-14 is the GPA said to have been executed by Sri.Nanjundappa, J.M. Gopal and J.M. Adi Narayana in favour of plaintiff's father Sri.V.K. Sampath on 10.2.1995 in respect of suit schedule property i.e., site No. 93. The copy of Ex.P-14 is in the file. Ex.P-14 has been marked through Pw-1 Sharadamma i.e, the GPA holder of the plaintiff. In the evidence, it has been stated that the original GPA executed by Sri.Nanjundappa, J.M. Gopal and J.M. Adi Narayana in favour of V.K.Sampath has been marked as Ex.P-14. On perusal of the order-sheet, it shows that by the order of this court dtd:
20.9.2012, original GPA was called for from CCH-23, which was produced by the plaintiff herein in O.S.No. 2508/2000 and thereafter, it was marked as Ex.P-14 by the plaintiff. It appears that subsequently the said original GPA was returned to the said court by retaining a certified copy of it and therefore the copy of Ex.P-14 is in the file of this court. It is clear that the plaintiff has produced the original GPA dtd: 10.2.1995, executed by Sri.Nanjundappa and his brothers in favour of plaintiff's father V.K.Sampath, before this court and got marked it as Ex.P-14.14 O.S.No. 285/2008
13. It is the contention of the defendant that he has purchased the suit schedule property from Sri.Nanjundappa and his brothers through registered sale deed dtd: 13.10.2003 and at that time his vendors had handed over the original GPA executed by them in favour of V.K.Sampath, to him. It is his contention that his vendors i.e., Sri.Nanjundappa and his brothers revoked the GPA executed in favour of plaintiff's father on 31.5.2000 and at that time V.K. Sampath had handed over the original GPA dtd: 10.2.1995 to them. The defendant during his evidence as Dw-1 has produced the original GPA said to have been handed over to him by his vendors at the time of execution of sale deed in his favour as per Ex. D-18.
14. It appears that both the plaintiff and defendant have produced the original GPA dtd: 10.2.1995 executed by Sri.Nanjundappa and his brothers in favour of plaintiff's father Sri.V.K. Sampath. It is not possible for both the plaintiff and defendant to produce the original GPA said to have been executed by Sri.Nanjundappa and his brothers in favour of plaintiff's father Sri.V.K.Sampath. On perusal of the documents marked as Ex.P-14 and Ex.D-18 it does not appear that both documents are one and the same. The GPA produced as 15 O.S.No. 285/2008 Ex.P14 by the plaintiff is a notarised document and it has been attested before a notary. But the GPA marked as per Ex.D-18 produced by the defendant is not a notarised document, it has not been attested before a notary. Moreover, the stamp paper number of the Ex.P-14 is No.753 dt: 20.1.1995 and it has been purchased in the name of Sri.Nanjundappa and his brothers. But the stamp paper in which Ex.D-18 GPA is written is bearing No. 1042 and it has been purchased in the name of Sri.Nanjundappa and his brothers on 10.2.1995, in it the name of stamp vendor is stated as D.P. Radhamani. But, in Ex. P-14, the name of the stamp vendor is not mentioned. However, the signature of the stamp vendor in Ex. P-14 and Ex. D-18 appears to be totally different. Therefore, it can be clearly made out that the stamp papers on which Ex.P-14 is written and the stamp paper in which Ex. D-18 is written are totally different stamp papers. In Ex. P-14 the attesting witnesses were identified by an advocate by name B. Gangappa and he has put his signature in respect of the same. But, in Ex.D-18 the space for identification of attesting witnesses is left vacant.
Therefore, it can be clearly made-out that Ex.P-14 GPA produced by the plaintiff and Ex.D-18 the GPA produced by 16 O.S.No. 285/2008 the defendant are not same document and those documents are different. On careful perusal of both the documents it appears that Ex.P-14 is the genuine document and Ex.D-18 is the created document.
15. It is the contention of the plaintiff that at the time of revocation of GPA, the plaintiff's father Sri.V.K.Sampath had handed over the GPA dt:10.2.1995 to his vendors Sri.Nanjundappa and his brothers. According to the defendant the GPA was revoked on 31.5.2000. There is no evidence to show that the GPA dt: 10.2.1995 was revoked on 31.5.2000. Dw-1 has stated that no document has been produced to show that the GPA dtd: 10.2.1995 executed in favour of V.K.Sampath was revoked. It appears that the vendors have not issued notice to V.K.Sampath revoking the GPA, they have not taken any legal action to revoke or cancel the said GPA and they have not issued paper publication regarding revocation of the GPA. Therefore, in cannot be said that the GPA executed by Sri.Nanjundappa and his brothers in favour of V.K. Sampath has been revoked. As already stated original GPA said to have been handed over by V.K. Sampath to his vendors at the time of alleged revocation, is not a genuine document. Moreover, 17 O.S.No. 285/2008 there is no endorsement by V.K. Sampath or by the vendors that the said GPA has been revoked.
16. Even if the vendors i.e, Sri.Nanjundappa and his brothers have revoked the GPA executed in favour of Sri.V.K.Sampath, it does not appear that it was brought to the knowledge of V.K.Sampath. The learned counsel for the plaintiff has pointed out to Sec. 208 of Contract Act. It reads as under:-
" 208. The termination of the authority of an agent does not so far regards the agent, takes effect before it became known to him or so far as regards third persons, it becomes known to them."
It is clear that the termination of authority of agent does not take effect before it becomes known to him and for as far as 3rd persons are concerned before it becomes known to them. Absolutely there is no evidence to show that the revocation of GPA by Sri.Nanjundappa and his brothers was made known to the agent i.e., V.K.Sampath or it was made known to 3rd persons i.e., the plaintiff herein, to whom V.K.Sampath has allegedly executed the gift deed on the strength of the said GPA. Therefore, when the revocation of 18 O.S.No. 285/2008 the GPA has not been brought to the knowledge either to V.K. Sampath or to the plaintiff, such revocation has not been taken effect at the time of execution of alleged gift deed.
17. Another point urged by the learned counsel for the plaintiff is that the GPA was executed for a consideration amount and therefore it becomes irrevocable. In Support of the same he has relied on Sec. 202 of Contract Act, which reads as under:-
"202. Where the agent has himself an interest in the property which forms the subject matter of the agency- the agency can not in the absence of an express contract be terminated to the prejudice of such interest."
18. It provides that when an agent himself has an interest in the property which forms the subject matter of the agency, such agency cannot be revoked in the absence of an 'Express contract'. There is no recital in the GPA as per Ex.P-14 that for execution of GPA the vendors have received consideration amount. However, it is the case of the plaintiff that at the same time of execution of GPA, on 10.2.1995, Sri.Nanjundappa and his brothers have 19 O.S.No. 285/2008 executed a sale agreement and also sworn to an affidavit stating they have received a sum of Rs., 50,000/- from Sri.V.K.Sampath as per consideration amount. Ex.P-17 is he said sale agreement executed by Sri.Nanjundappa and his brothers in favour of V.K.Sampath. It is also dated 10.2.1995. In it, it has been stated that they have agreed to sell the suit property for a sum of Rs. 1,50,000/- and received the entire sale consideration amount in cash in presence of witnesses and handed over the property to Sri.V.K.Sampath. Even in the affidavit sworn by Sri.Nanjundappa and his brothers on the same day, it is stated that a sum of Rs. 50,000/- received in cash and handed over the possession to V.K.Sampath. It is true that there is discrepancy regarding sale consideration amount in the sale agreement and in the affidavit. However, the recitals of documents show that entire consideration amount has been paid by Sri.V.K.Sampath to Sri.Nanjundappa and his brothers on 10.2.1995 itself. Therefore, it can be made out that the GPA as per Ex.P-14 was executed for a consideration . Hence, V.K.Sampath being an agent has interest in the property which forms 20 O.S.No. 285/2008 the subject matter of the agency and therefore, such agency cannot be terminated in the absence of an express contract. In view of the same, Sri.Nanjundappa and his brothers could not have terminated the GPA as per Ex.P-14 in the absence of express contract. But, there is no express contract terminating the agency given in favour of V.K.Sampath. On this count also it cannot be said that the GPA executed in favour of V.K.Sampath has been revoked or terminated.
19. The plaintiff has examined Pw-2 and 3 to prove the GPA, Affidavit and Sale agreement. They have stated in their evidence that they have negotiated for the purchase of suit property by V.K.Sampath from Sri.Nanjundappa and his brothers. They have stated about Ex.P-14 GPA, Ex.P16 Affidavit, Ex. P-17 the Sale agreement dt: 10.2.1995. It is their evidence that they have put their signatures on Ex.P17 Sale agreement as witnesses. They have also stated about payment of consideration amount by V.K.Sampath to Sri.Nanjundappa and his brothers. Pw-2 has stated that there is some discrepancy regarding consideration amount which was paid by V.K.Sampath to Sri.Nanjundappa and his brothers. 21 O.S.No. 285/2008 But their evidence regarding execution of documents in favour of V.K.Sampath is very clear. Moreover, as already stated there is no dispute regarding execution of those documents by Sri.Nanjundappa and his brothers in favour of plaintiff's father Sri.V.K.Sampath.
20. In the above circumstances, there is no evidence to prove that the GPA executed in favour of V.K.Sampath dtd:
10.2.1995 was revoked by Sri.Nanjundappa and his brothers on 31.5.2000 and therefore Sri. V.K.Sampath has no right to execute Gift deed in respect of the suit property. Accordingly I answer Issue No.4 in the Negative.
21. Issue No.1: The plaintiff has proved that Sri. Nanjundappa and his brothers have executed GPA in favour of plaintiff's father Sri.V.K.Sampath on 10.2.1995 and the defendant has failed to prove that the said GPA has been revoked by Sri. Nanjundappa and his brothers. Therefore, even if the contention of the defendant that the GPA was revoked on 31.5.2000, the alleged Gift deed was executed on 6.10.1999 which is earlier to 31.5.2000, on which date alleged revocation was made. Therefore viewed from any angle as on the date of execution of registered Gift deed, the plaintiff's 22 O.S.No. 285/2008 father V.K.Sampath had authority to deal with the suit schedule property on the basis of the GPA executed by Sri. Nanjundappa and his brothers dt: 19.2.1995. The plaintiff's father Sri.V.K.Sampath has executed the Gift deed in favour of the plaintiff on 6.10.1999 in respect of the suit property. The original gift deed is marked as Ex.P-5. In order to prove the gift deed the plaintiff has examined Pw-4 B.K.Manjunath who is an attesting witness to the same. He has stated in his evidence that plaintiff's father V.K. Sampath has executed the gift deed dt;6.10.1999 in favour of the plaintiff gifting the suit schedule property and the said gift deed has been registered. He has stated that he has signed the gift deed as a witness. He has identified his signature as Ex.P-5(a). The learned counsel for the defendant has cross-examined Pw-4, but nothing has been elicited from him to dis-credit his evidence regarding execution of the gift deed by the plaintiff's father in favour of the plaintiff. The only ground urged by the defendant to dis- believe the evidence of Pw-4 is that Pw-4 is a relative of plaintiff. Only on the ground that Pw-4 is a relative of plaintiff, his evidence regarding execution of gift deed cannot be disbelieved. If the relationship of the witness with the 23 O.S.No. 285/2008 plaintiff is coupled with any other material to dis-believe his evidence then only it can be a ground to dis-credit his evidence. But there is no such material before this court. Therefore the evidence shows that plaintiff's father has executed registered Gift deed in favour of the plaintiff. Ex.P-6 is rectification deed in respect of said gift deed. It is also a registered document. In this document only the deed of partition and registration number of partition deed was rectified in respect of partition deed under which Nanjundappa and his brothers acquired the suit schedule property. Therefore the rectification deed will not any way reduce the value of the Gift deed executed by the plaintiff's father in favour of the plaintiff.
22. The defendant has taken up a contention that at the time of execution of Gift deed the plaintiff was a minor and therefore the plaintiff could not have accepted the Gift and therefore, the Gift deed is not valid. In the evidence of plaintiff's witnesses it has been elicited that date of birth of plaintiff was 25.6.1981. The gift deed has been executed on 6.10.1999. Therefore, according to this evidence, the plaintiff was aged about 18 years 3months 11 days as on the date of 24 O.S.No. 285/2008 execution of Gift deed. Therefore he was not a minor. The plaintiff has not produced any document regarding his date of birth before this court. However, the learned counsel for the plaintiff has relied on a decision reported in AIR 2004 SC 1257 (K.Balakrishnan Vs. K. Kamalam and others). It has been observed that the Gift deed in favour of a minor is not prohibited under T.P. Act; the minor though dis-qualified from entering into contract, he is capable of receiving the property. Therefore, even if it is accepted that the plaintiff was a minor at the time of execution of the Gift deed, there is no bar for him in law to receive the Gift. The contention of the defendant in respect of the same cannot be accepted. There is clear evidence to show that plaintiff's father has executed a Gift deed in favour of the plaintiff and thus plaintiff has become owner in possession and enjoyment of the suit schedule property. Accordingly Issue No.1 is answered in the Affirmative.
23. Issues No. 3 and 5:- The suit schedule property was gifted by the plaintiffs father to plaintiff on 6.10.1999. But the sale deed in favour of the defendant by Sri.Nanjundappa and his bothers is dated 13.10.2003. I held that the GPA 25 O.S.No. 285/2008 executed by Sri.Nanjundappa and his bothers in favour of the plaintiff's father is valid. Consequently, the Gift deed executed by the plaintiffs father in favour of the plaintiff is also valid. Under such circumstances the Gift deed in favour of the plaintiff being an earlier document will prevail over the sale deed executed in favour of the defendant. Therefore, the sale deed in favour of the defendant is to be held as null and void and not binding on the plaintiff. Such sale deed will not give any right, title and interest over the suit property to the defendant. Hence, I answer Issue No.3 in the Affirmative and Issue No.5 in the Negative.
24. Issue No.2: The plaintiff has contended that the defendant is interfering with his possession and enjoyment of the suit schedule property. The plaintiff has pleaded that the defendant tried to interfere with his possession of the suit schedule property on 10.1.2007 and in connection with the same he filed a suit for injunction in S.C. No. 621/2007 against the defendant, but the said suit was dismissed for non- prosecution. After dismissal of the said suit, the defendant again tried to interfere with the possession of the property by the plaintiff and by disputing the title of the plaintiff over the 26 O.S.No. 285/2008 same. Therefore, the plaintiff filed this suit. Pw-1 has stated the same in his evidence. But there is no cross-examination regarding the same by the defendant. The defendant has focused his cross-examination to prove his title over the suit schedule property. Considering the fact that the plaintiff is succeeded in proving his title over the suit schedule property, the possession will follow the title. Under these circumstances, the plaintiff has proved that he is in possession of the suit schedule property and the defendant is trying to interfering with his possession and enjoyment of the same. Accordingly I answer Issue No.2 in the affirmative.
25. Issue No.6:- This Issue has already been answered by this court by order dated 9.2.2012 in the Negative.
26. Issue No.7:- There is no dispute that Sri.Nanjundappa and his bothers were the owners of the suit schedule property. The plaintiff could not have claimed any relief against them. The question is whether the GPA executed by them in favour of the plaintiff's father is valid or the sale deed executed in favour of the defendant is valid. For determining the same the presence of Sri.Nanjundappa and his bothers is not necessary in this suit. Hence the suit is not bad for non- 27 O.S.No. 285/2008 joinder of necessary parties. Accordingly I answer Issue No.7 in the Negative.
27. Issue No.8:- The defendant has pleaded that the suit is barred by limitation. However the plaintiff has contended that the suit in O.S. No. 621/2007 for bare injunction was filed by the plaintiff. In that suit the defendant appeared and filed his written statement on 16.3.2007 and taken up a contention that Sri.Nanjundaiah & his brothers have executed sale deed to him on 13.10.2003. In view of such pleadings in that case this plaintiff came to know about the sale deed executed in favour of the defendant on 16.7.2007. Immediately thereafter he has filed this suit for the relief of declaration and injunction. Such being the case, the suit of the plaintiff which is filed on 8.1.2008 is not barred by limitation. Accordingly I answer Issue No.8 in the Negative.
28. Issue No. 9: The plaintiff has succeeded in proving that he is the owner in possession and enjoyment of the suit schedule property and defendant is interfering with his possession and enjoyment of the same. Therefore, he is entitled for the relief of declaration to declare the sale deed dt: 13.10.2003 executed by Sri.Nanjundappa and his brothers 28 O.S.No. 285/2008 as null and void and permanent injunction as prayed by him. Accordingly, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby decreed with costs.
It is declared that the Sale deed dt:
13.10.2003 executed by Sri. Nanjundappa and his brothers in favour of the defendant in respect of the suit schedule property is Null and Void and not binding on the plaintiff.
The defendant is hereby restrained by way of permanent injunction from interfering with plaintiff's peaceful possession and enjoyment of the suit property.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed and typed by her, corrected and then pronounced by me in open court, this the 22nd DAY OF August 2022) (YASHAWANTH KUMAR) C/c. XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38) BANGALORE.
Schedule Property;;
All that piece and parcel of site bearing No.93, formed in Survey No.97/1, Jakkur Village, presently Navya Nagar, Jakkur, Bangalore-560064, measuring East to West 40 feet and North to South 80 feet, and bounded on:
29 O.S.No. 285/2008
The East by: Site No. 94;
West by: Site No. 92;
North by: Road;
& South by: Property of Sri. Muni byanna.
ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
PW1 Smt. Sharada Documents marked on behalf of the plaintiff/s:
Ex.P1 - G.P.A. Ex.P2 - C/c. Of Sale deed dt: 13.10.2003. Ex.P3 - C/c. Of Ordersheet in O.S. No. 621/2007. Ex.P4 - Tax paid receipt. Ex.P5 - Gift Deed. Ex.P6 - Rectification deed Ex.P7 - Encumbrance certificate Ex.P8 - Tax Assessment Register Extract Ex.P9 - 8 Tax paid receipts. Ex.P10- Certificate of BBMP Ex.P11- Katha Extract. Ex.P12- Acknowledgement of Police. Ex.P13- Cash Receipt. Ex.P14- Original GPA Ex.P15- C/c. Of Registered Partition Deed.
Ex.P16 & 17- C/c of affidavit & Agreement of Sale Dt: 10.2.1995.
Ex.P18 & 19- Two Encumbrance certificates. List of witnesses examined on behalf of the Defendant/s:
Dw-1- S.K. Ghouse Mohaddin @ Aslam S.K. Documents marked on behalf of the Defendant/s:
Ex.D1- C/c. Of Gazette Notification.
30 O.S.No. 285/2008
Ex.D2- C/c. Of Tax Assessment Register Extract.
Ex.D3-
to 6- 4 Tax paid receipts issued by CMC.
Ex.D7-
to D11- 5 Application submitted before CMC Ex.D12- Tax paid receipt.
Ex.D13- Copy of application Ex.D14- Tax paid receipt.
Ex.D15-
&16- Two Encumbrance Certificates
Ex.D17- Betterment Tax receipt.
Ex.D18- G.P.A.
(YASHAWANTH KUMAR)
C/c. XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38) BANGALORE.