Bangalore District Court
Sri. C. Nagaraj vs Sri. Balachandra Rao Jadav on 7 March, 2022
KABC010138412004
Form
No.9
(Civil)
Title
Sheet
for
Judgme
PRESENT : SMT. PRASHANTHI.G.
B.A (Law) LL.B.,
XXVII Additional City Civil Judge.
Dated this the 7 th day of March 2022
PLAINTIFF : Sri. C. Nagaraj,
S/o Late Chengaiah,
Aged about 50 years,
R/at No.76/4-2,
30th Cross, Tilaknagar Main
Road, IV 'T' Block,
Jayanagar,
Bangalore - 560 041.
[By Sri V.A. Mohan Rangam,
Advocate]
/v e r s u s/
DEFENDANTS: 1. Sri. Balachandra Rao Jadav,
S/o Sri. Subboj Rao,
Aged about 42 years,
R/at No.189, Canara Bank
2 O.S.4091/2004
Colony, Nagarbhavi Road,
Bangalre City.
2. Sri. H.V. Shivakumar,
S/o Sri. H.S. Veeraiah,
Aged about 46 years,
R/at No.408, 11th 'A' Cross,
1st Phase, J.P. Nagar,
Bangalore - 560 078.
3. Smt. Leelavathi,
W/o Sri. Thimmaraju,
Aged about 37 years,
R/at No.4, KPTCL Quarters,
Tumkur.
4. Smt. Mamath.T,
W/o Sri. D. Krishnamurthy,
Aged about 31 years,
R/at No.276, 6th Main,
Canara Bank Colony,
Nagarbhavi Road,
Bangalore - 560 072.
5. Sri. L. Ramachandra,
S/o Late A.M. Lingaiah,
Aged about 37 years,
R/at No.367, 11th Main Road,
Srinivasnagar, Banashankari
I stage,Bangalore - 560 050.
6. Sri. K. Jagadish,
S/o Sri. S. Krishnappa,
Aged about 34 years,
R/at No.8, 10th Cross,
3 O.S.4091/2004
1st Main Road, Dattathreya Road,
Hosakerehalli,
Bangalore - 560 085.
7. Sri. C. Venugopal,
S/o Late Sri. S. Chikkanna,
Aged about 57 years,
Resident of J.P.Nagar, VI Phase,
Bangalore - 560 078.
8. Smt. Sudha Gaikawad,
D/o Smt. Mamatha.T,
Aged about years,
R/at No.276, 6th Main,
Canara Bank Colony,
Nagarabhavi Road,
Bangalore - 560 072.
9. Sri. H. Jayaram,
S/o Sri. Hanumappa,
Aged about 42 years,
R/o Hulimavu, Bannerghatta
Road, Bangalore - 560 076.
10. The Executive Offier,
Kothanur Village Panchayath,
Coming under Bangalore District
Panchayath, Kothanur,
Bangalore.
11. Sri. K.R. Anand Swaroop,
S/o K.V. Radhakrishnan,
Aged about 62 years,
R/at No.61, Jewelers Street,
Bangalore.
4 O.S.4091/2004
12. Sri. V.M. Anwar Ali,
S/o V.B. Mohammed Hussain,
Aged about 47 years,
R/at No.13/4D, Tank Street,
Hosur, Tamil Nadu.
13. Sri. S. Singaravelu,
S/o R. Selvaraj,
Aged about 53 years,
R/at No.253, New A.S.T.C,
Hudco, 38th Cross,
Tamil Nadu.
14. Sri. Sanjaikumar.J,
S/o Jagannath,
Aged about 40 years,
R/at No.864, 'Swathi',
1st Block, 1st Cross, 2nd Main,
New Thippasandra Post,
HAL III Stage,
Bangalore - 560 075.
D1, D2, D7, D8 - By Sri BNNK, Advocate
D4- By Sri YPN, Advocate
D5, D6 - By Sri KVK, Advocate
D9, D10 -Exparte
D11 - By Sri ND, Advocate
D12, D13 -Absent
D14- By Sri KVK, Advocate
Date of institution of the : 15/06/2004
suit
Nature of the suit : For Injunction
Date of commencement of : 19/7/2007
recording of the evidence
5 O.S.4091/2004
Date on which the : 7/3/2022
Judgment was
pronounced.
: Year/ Month/s Day/s
Total duration s
17 8 23
(Prashanthi. G)
XXVII ACCJ: B'LORE.
Plaintiff has filed this suit against the defendants
for the relief of permanent injunction restraining the
defendants No.1 to 9 from interfering with the peaceful
possession and enjoyment of the suit schedule property
by the plaintiff either individually or collectively, for
Mandatory Injunction against defendant No.6, to declare
the plaintiff is the absolute owner with respect of item
No.1 to 4 of schedule property, to declare the sale deed
dated 17.11.2000, sale deed dated 09.04.2001,
05.04.2003, 23.10.1999, sale deed 14.07.2000,
07.09.2004 are not binding on the plaintiff.
6 O.S.4091/2004
2. In brief, the plaintiff's case is as under:
Originally one Chengaiah is the owner of schedule
'A', 'B' and 'C' property acquired the same by virtue of
sale deeds dated 31.03.1972 and 20.07.1974. After his
death his 4 sons by name C.Jayachandra, Rajashekar,
C.Mani and C. Nagaraj become the owners of the
property.
The total extent of the land in Sy.No.11, 12/1 and
47/1 of Kothanur Village, of Bangalore South Taluk was
measuring to the extent of 5 acres 3 guntas. In view of
initiation of suit for Partition filed by the plaintiff and in
the compromise, the Court granted final decree in
favour of the parties. From the date of the decree, the
present plaintiff is in possession of schedule 'A', 'B' and
'C' of the property measuring to the extent of 1 acre 10
guntas. As per contention of the plaintiff, plaintiff is the
owner of the land measuring to the extent of 20 guntas
7 O.S.4091/2004
in Sy.No.11, 3 guntas in Sy.No.47/1 and 1 acre 12
guntas in Sy.No.47/1 of Kothanur Village.
In view of suit filed by the plaintiff in
O.S.No.4706/1997, against his brothers 7 th defendant
appeared as power of attorney holder of all the
defendants. In that suit, a compromise petition was
filed. The original copy of the sketch in that compromise
petition was in the custody of defendant No.7. In the
said compromise decree, the plaintiff was allotted with
item No.1 to 3 of the schedule property. The defendant
contended that the suit schedule mentioned in the
plaint does not form part of the property reflected in the
sale deed executed by them. Since the description of the
property is improper it will be difficult for the Court to
arrive at just and proper decision. However, the
defendants have no right over the suit property.
The defendant No.8 is the wife of the first
defendant. Both executed sale deed in favour of
8 O.S.4091/2004
defendant No.1 to 4 in different dates with respect to
one site which is alleged to be formed in part of
Sy.No.11, 12/1 and 47/1 of Kothanur Village. Similarly
defendant No.1 executed two sale deeds in favour of
defendant No.5 and 6 which is also the part of Sy.No.11,
12/1 and 47/1 of Kothanur Village. One L.H. Harish
Rao executed a sale deed in favour of defendant No.11
to the names of Sri. V.M.Anwar Ali and S. Singaravelu.
In view of sale transaction entered between L.H.Harish
Rao and V.M.Anwar Ali and Singarvelu, defendant No.11
arrived as party to the suit.
The sale deed executed by defendant No.7 and 8 as
GPA holder in favour of defendant No.1 in respect of site
No.37 measuring 60 x 60 formed in Sy.No.11, 12/1 and
47/1 of Kothanur Village. The same is not based on
authorization of the plaintiff or his brothers. Therefore,
the said sale deed is not binding upon the plaintiff.
9 O.S.4091/2004
In the same way, sale deed executed by defendant
No.7 and 8 in favour of defendant No.2 with respect to
house list No.75/A by way of registered document dated
17.11.2000, the sale deed executed by defendant No.7
and 8 in favour of defendant No.3 with respect to site
No.91 dated 09.04.2001, the sale deed executed by
defendant No.7 and 8 in favour of defendant No.4 with
respect to site No.92, dated 09.04.2001, sale deed dated
26.03.2003 executed by the defendant No.9 in favour of
defendant No.5 with respect to site No.1, the sale deed
executed by defendant No.9 in favour of defendant No.6
with respect to site No.2, dated 05.04.2003, sale deed
executed by L.H.Harish Rao in favour of Ananth
Swaroop with respect to site No.83 dated 23.10.1999,
sale deed executed by L.H.Harish Rao in favorr of
V.M.Anwar Ali and Singaravelu with respect to site
No.95 as per the sale deed 14.07.2000 are all, executed
without the authorisation of the plaintiff and his
10 O.S.4091/2004
brothers and therefore, the same are not binding on the
plaintiff.
All the documents executed by the 7th defendant,
8th defendant, 9th defendant and L.H.Harish Rao reflects
only site number and katha number and not survey
number. The said lands are agricultural lands and not
converted into non-agricultural residential purpose.
In view of stand taken by the defendant, the
plaintiff came to know about the various other sale
deeds executed by the various parties and therefore, it
became necessary for the plaintiff to seek for the
declaratory relief.
The plaintiff applied for the encumbrance from the
Sub-Registrar of Kengeri, Bangalore in respect of the
schedule property and found that a fraud has been
played by the defendant No.1, 7, 8 and 9 to him. All the
sale deeds clearly shows that they are created in
collusion with defendant No.8.
11 O.S.4091/2004
On 27.05.2004 the tenant of the plaintiff by name
Shabbir telephoned the plaintiff conveying that
defendant No.1 is trying to meddle in the suit schedule
property in order to lay foundation and at that time
plaintiff rushed to the property and brought the
Jayanagar police. At that time, he got the information
that several sale deeds are executed in favour of so
many defendants and defendant No.6 has obtained plan
from the concerned authority in order to construct the
house.
As per the direction of the police, the plaintiff
approached the Court with the reliefs as sought in the
plaint.
The defendant No.7 to 9 do not have any
authorities to represent the plaintiff in respect of the
sale deed executed in favour of defendant Nos.1 to 6.
The defendant No.7 to 9 played fraud, mischiefs and
12 O.S.4091/2004
with the conspiracy of defendant No.7 to 9 played fraud
to the plaintiff.
The cause of the action for the suit arose on
26.05.2004 within the jurisdiction of the Court.
For the above said reasons prayed to decree the
suit in the interest of justice.
3. After the service of the summons, defendant
no.1, 2, 7 and 8 appeared through their respective
counsel and filed written statement. Defendant no.3,
defendant no.4, defendant no.5 and 6 appeared
through their counsel and filed written statement.
Defendant No.11, defendant no.14 appeared through
their counsel and filed written statement. Defendant
no.9 and 10 placed exparte. Defendant No.12 and 13
though impleaded afterwards did not appear and
contest the case of the plaintiff, and remained absent.
4. The main contentions of the defendant no.1,
2, 7 and 8 in the written statement are as under:
13 O.S.4091/2004
The suit of the plaintiff is not maintainable either
in law or facts of the case. The plaintiff has not came
before the Court with clean hands and suppressed the
material facts before the Court.
Except the fact of physical possession of the
properties of this defendants, the averments stated in
para no. 3, 4 and 5 of the plaint are correct. These
defendants are in the possession of the properties as per
their respective sale deeds.
The present suit has been filed without mentioning
the boundaries the plaintiff himself is doubt of his own
case and his own properties and boundaries. Further
the sketch is not consonance with the compromise
petition filed in the above suit. The present sketch filed
by the plaintiff does not disclose where exactly his share
is situated. In fact, the said sketch shows the entire
extent of the property and does not disclose the share of
the plaintiff and the boundaries demarcating the share
14 O.S.4091/2004
of the plaintiff. In fact, even before the filing of the suit
itself, as early as in 25/11/1992 itself, the entire lands
of the plaintiffs and his brothers are formed as layout
which was approved by the concerned Gram panchayat.
This fact has been suppressed by the plaintiff and in
order to trouble the defendants, and to extract more
money from the purchasers, suit has been filed. As per
the oral partition made in between the plaintiff and his
brothers, they have divided the entire land in the said
three survey numbers as early as 25/11/1992 itself and
enjoying their share separately. In fact, the sketch
produced in comprise petition in O.S.4706/97 is
entirely different from the present sketch annexed to the
final decree. In fact, as can be seen the compromise
petition and the present rough sketch, it can be easily
come to the conclusion that something has happened in
the middle while drawing the final decree proceedings.
In the compromise petition, the share of the plaintiff has
15 O.S.4091/2004
been shown in the green colour as area 1 and 2 with
boundaries and the same is not found in the sketch
annexed to the final decree. The plaintiff has not
explained the socalled episode accrued on 27/5/2004
and these defendants have not played any fruad as
stated by the plaintiff. In fact, by mistake plaintiff's
name is shown in the sale deed as if he is also selling
the properties of this defendant.
In fact, the properties purchased by the
defendants 1, 2 and 8 does not come with the limit of
the share of the plaintiff, except the one property sold
by the plaintiff and his brothers jointly i.e., site no.36,
katha no. 857 under the sale deed dated 10/6/1999 in
favour of the 8th defendant. In turn, the said site was
sold by defendant no.8 in favour of one H.R.Shashikala
under the registered sale deed dated 6/3/2003. The
plaintiff tried to interfere with her possession and she
had filed a suit for possession against the plaintiff in
16 O.S.4091/2004
O.S.3635/2003 on the file of the City Civil Judge Court
Hall No.19 which is pending for adjudication. The other
properties purchased by the defendant no.1, 2 and 8
through the 7th defendant fall within the limits of the
shares that fell to the other brothers of the plaintiff.
Taking advantage of the same, the present suit has been
filed. It is true that, Bangalore Development Authority
has given the endorsement on 20/8/94 in the name of
the plaintiff's brothers stating that the same is not
notified for any of its schemes as on the said date. It is
submitted that, by oversight and mistake the plaintiff's
name has been shown in the sale deed pertaining to the
defendant no.1, 2 and 8 though the plaintiff has no
right over the same. There is no pollution between
defendant no.7 and 8 and these defendants have not
impersonated the plaintiff as stated in the plaint. In
fact, the numbers given in the sale deeds of these
defendants are not imaginary numbers as stated in the
17 O.S.4091/2004
plaint. In fact, the plaintiff himself sold one site bearing
no.36 on 10/6/99 in favour of the defendant no.8 in
which he has given the katha number as 857 which is
the katha number given to the entire sites formed in the
said survey numbers. In fact, on 27/5/2004, the
plaintiff tried to interfere with the physical possession of
the sites of the defendants and as such these
defendants prevented his illegal acts, thereafter the
matter was brought to the notice of the Jayanagara
police who directed the plaintiff to produce his
documents. Thereafter, the plaintiff has not produced
any documents and kept quiet. In fact, these defendants
and other purchasers of their respective sites are in
physical possession and enjoyment of the same and as
such the question of interference by the defendants
does not arise at all. There is no conspiracy by
defendant no.7 and 8 with defendant no.10 in getting
the plan sanctioned in favour of the defendant no.6. In
18 O.S.4091/2004
fact, the defendant no.10 is obtaining the building
license as per the law. The documents produced by the
defendants are not fabricated. By virtue of the said
collusive compromise decree, the plaintiffs does not get
the right over the property purchased by the defendant .
In fact, the property of the plaintiff is entirely different
and distinct from that of the defendants. Plaintiff is
making a false claim in order to extract more money and
give trouble to them.
As contended by the plaintiffs, the defendants did
not played fraud on the plaintiff. The only mistake
committed by the defendants is that, they have inserted
the name of the plaintiff in the sale deeds executed by
them by mistake. In fact, these defendants are not the
stranger to the plaintiff, and the plaintiff had the
transaction with the defendant no.1 to 7 from the
beginning itself. The story of the tenant explained by the
plaintiff is only a cock and bull story and in order to
19 O.S.4091/2004
obtain the sympathy from the Court, the same is
created.
There is no cause of action for the suit and alleged
cause of action is imaginary.
It is not out of place for this defendant to submit
here that the plaintiff and his three brothers have
entered into an agreement to sell the lands in 21/09/95
in favour of defendant no.7, 9 and two others i.e.,
S.G.Shamanna and B.Nagaraju agreeing to sell the
entire extent of 5 acre 2 guntas of the suit schedule 3
survey numbers and received major consideration
amount. The plaintiff has also received a sum of
Rs.1,50,000/- from the aforesaid persons and put the
agreement holders in physical possession of the land.
Under the said agreement, only 25 guntas of the land
remained with the plaintiff and said 25 guntas are also
taken by the said agreement holders earlier to the said
agreement. Thereafter, on 12/5/2000, 7/12/2000 and
20 O.S.4091/2004
17/9/2000, the plaintiff's other brothers C.Rajashekar,
C.Mani and C.Jayachandra have executed three
separate general power of attorney with affidavit with
respect of the site no. 1A, 75/A, 91, 92 and 37 formed
out of the aforesaid survey numbers in favour of the
defendant no.1, 7 and 8. The 7 th defendant who is an
agreement holder through whom 1st and 8th defendant
have made aforesaid transaction. In fact, the plaintiff
also received an amount of Rs.50,000/- on 18/6/2000
in respect of such transactions. The plaintiff also
executed a receipt which clearly shows that the plaintiff
had the transaction with the defendants from the
beginning.
For the above said reasons, prays to dismiss the
suit.
5. The main contentions of the defendant no.3
in the written statement are as under:
21 O.S.4091/2004
The suit itself is not maintainable either in law or
facts of the case.
The lands in Sy.No. 11, 12/1 and 47/1 measuring
to the extent of 5 acre 4 guntas of Kothanur village was
the ancestral property of one Chengaiah. He had four
sons by name C.Nagaraj, C.Jayachandra, C.Rajashekar
and C.Mani. The last two sons are deceased. The sons of
late Chengaiah formed a layout in suit schedule survey
numbers. The layout plan was approved by the
Kothanur Grampanchayat. In the said layout plan, site
no. 92, 93 and katha no. 857 fell to the share of
C.Rajashekar and C.Mani.
Site no. 92 was purchased by this defendant from
Jayachandra and his brothers, Rajashekar and Mani
through the general power of attorney holder of
defendant no.1 and 7 under the registered sale deed
dated 9/4/2001. Site no. 93 was purchased by the
defendant for the valuable consideration by the plaintiff
22 O.S.4091/2004
and his brothers under the registered sale deed dated
29/10/1997. Thus, from the above, it is seen that
layout of the sites was formed by sons of late Chengaiah
and defendant no.3 is the bonafide purchaser of site no.
92 and 93. After purchasing the sites, the defendant has
got form No.10 executed in her name and also paid
taxes to the panchayath.
The present suit has been filed for the relief of
permanent injunction in the respect of Schedule A to C
properties. There are no boundaries to the property
mentioned in the schedule. No proper description is
given in the schedule also. A layout of the sites has been
formed in the entire extent of the land and property is
now only capable of being identified by site numbers.
The plaintiff has wrongly described the land as survey
number. The plaintiff being a party to the formation of
the layout, and execution of the sale deeds in respect of
the sites cannot file a suit for injunction in respect of
23 O.S.4091/2004
the survey number which is not in existence. Since the
land prices are appreciated, the plaintiff is trying to grab
and encroach the property of the defendants. Already a
suit in O.S.8147/2004 is filed against the plaintiff and
his brothers and the Court has already granted
temporary injunction restraining the plaintiff.
The allegations in para no.3 of the plaint are
denied. The allegations in para no.4 and 5 of the plaint
are admitted. With regard to the allegations in para no.6
and 7 of the plaint, it is not correct. Notwithstanding
with the allotment of 1 acre 10 guntas of the plaintiff,
the plaintiff and all brothers formed the layout of the
sites and site no. 92 and 93 came to the possession of
the defendants by virtue of the sale deeds. Therefore,
the plaintiff does not have any manner of rights in the
sites purchased by the defendants.
The allegations in para no. 8, 9, 10, 11, 12 and 13
of the plaint are denied and they are false and baseless.
24 O.S.4091/2004
There is no cause of action in the alleged plaint.
The plaintiff is not at all in possession of the land as
alleged. The Court fee paid in the suit is insufficient.
The present market value of 1 acre of land in that area
is more than one crore.
For the above said reasons, prays to dismiss the su
it in the ends of the justice.
6. The defendant no.4 also filed the written
statement which is same as that of defendant no.3
except contending that he has purchased site no.91
with respect to the suit schedule property which fall into
the share of C.Rajashekar and C.Mani. The plaintiff
does not have any manner of rights or interest in the
said site no.91 purchased by the defendants. The
plaintiff is not at all in possession of the site no.91 and
therefore he is not entitled to for injunction.
Since site no.91 is purchased by the defendant
no.4 as per the registered sale deed dated 9/4/2001
25 O.S.4091/2004
and 29/10/1997, the plaintiff cannot claim the rights
over the same.
The remaining averments of the statement filed by
the defendant no.4 is same as that of the defendant
no.3. Accordingly, prays to dismiss the suit in the ends
of the justice.
7. Afterwards, both 3rd defendant and 4th
defendant filed additional written statement in support
of their case. They denied each and every paragraph of
plaint averments.
8. The defendant no.5 filed his written
statement and contended that, he is the absolute owner
and in lawful possession and enjoyment of the property
bearing site no.1 V.P.Katha No.857, assessment no.11
formed in the land bearing Sy.No. 11, 12/1 and 47/1 of
Kothanur village, previously within the limits of
Bommanahalli CMC, presently included within the
limits of BBMP.
26 O.S.4091/2004
5th defendant purchased the site no.1 from the
plaintiff and his brothers represented by their general
power of attorney holder Jayaram who is the defendant
no.9 in the above case under the registered sale deed
dated 26/3/2003. After the registered sale deed,
Kothanur Grampanchayat changed the katha of site
no.1 to the name of defendant no.5 and accordingly
form no.10 was also issued to his name. He also applied
for the license in order to put up the construction over
the same. Accordingly, on 19/6/2003, panchayat has
issued the license in favour of defendant no.5, he has
put up ACC sheet roofed house in the said property.
BESCOM authorities have also provided electricity
connection in the respect of the said property.
When item no.1 of the written statement schedule
property comes under the jurisdiction of CMC of
Bommanahalli, once again defendant no.5 approached
the CMC and katha certificate issued in his favour.
27 O.S.4091/2004
Subsequently 5th defendant paid taxes to the concerned
authorities in respect of the above property and BWSSB
also provided water and sewerage connection in respect
of the site no.1. Defendant no.5 is paying water bill in
respect of the site no.1, and when the property comes
under the purview of BBMP, he is paying taxes to the
BBMP. Therefore, as per the contentions of the
defendant no.5, he is the bonafide purchaser of the site
no.1 and therefore the plaintiff cannot contend that he
is the owner of the suit schedule property and sale deed
executed in his favour is not binding upon him. This
defendant also denies each and every plaint averments
and contends that there is no cause of action for the
suit and the Court fee paid in the suit is insufficient.
Accordingly, prays to dismiss the suit in the ends
of the justice.
28 O.S.4091/2004
9. The main contentions of the defendant no.6
in the written statement are as under:
As per the contentions of the defendant no.6, he is
the absolute owner in lawful possession and enjoyment
of the property of site no.2, V.P.katha no. 857 formed in
the land bearing Sy.No. 11, 12/1, and 47/1 of Kothanur
village which is previously within the limits of CMC,
Bommanahalli. The land was measuring to the extent of
1200 square feet. The defendant no.6 purchased the
above from the plaintiff and his brother represented by
their general power of attorney holder H.Jayaram and
defendant no.9 under the registered sale deed dated
5/4/2003. As per the contentions of defendant no.6, he
is the bonafide purchaser of the site for the valuable
consideration. After obtaining the registered sale deed in
his favour with respect to the above site, he also
approached the grampanchayat for the change of katha
29 O.S.4091/2004
to his name. Accordingly, form no.10 was also issued in
his favour.
In order to put up the construction over the site
no.2, he has applied for the license and he has also
constructed the compound wall along with defendant
no.5. When the property comes under the purview
under the BBMP, he also applied for the katha of the
property to the Bruhath Bengaluru Mahanagara Palike
and Bruhath Bengaluru Mahanagara Palike also issued
katha in his favour and he is paying the property taxes
to the Bruhath Bengaluru Mahanagara Palike. So, as
per the contentions of the defendant no.6 he is in the
possession and enjoyment of the site no.2 without any
hindrance from the other persons.
6th defendant further contended that originally the
land bearing Sy.No. 11, 12/1, and 47/1 situated in
Kothanur village was measuring to the extent of 5 acres
2 guntas belonging to the plaintiff and his brothers.
30 O.S.4091/2004
They formed the residential layout in the said land and
the entire sites are formed in the above said survey
numbers and katha number was also issued by the
Kothanur Grampanchayat as 857. The plaintiff and his
brothers jointly executed the general power of attorney
in favour of one Jayaram who is the defendant no.9 in
the above case in order to deal with the item no.1 to 3
along with the site bearing no. 8 to 10, 57, 61, 76, 77
and 90 formed in the above said survey numbers
including the alienation of the said sites. The said
general power of attorney was executed on 27/10/97
and the same was notarized before the Notary.
The general power of attorney holder of the plaintiff
and his brothers sold the other sites to various
purchasers and they are in possession of the respective
sites. The plaintiffs have no manner of right, title and
possession over the suit schedule property. Way back in
the year 1997 itself, the entire land was sold in favour of
31 O.S.4091/2004
the third parties and in subsequent dates also by
forming the layout and sites in the aforesaid three
survey numbers of Kothanur village. At present, the
purchasers are in the possession and enjoyment of the
different sites after constructing the houses in the suit
schedule property.
The above said survey numbers are fully developed
as residential layout and Bruhath Bengaluru
Mahanagara Palike has taken over the possession of the
road and drainages in the layout. The present suit has
been filed by the plaintiff in order to harass the
defendants and to extract the money by suppressing the
above facts.
This defendant being the bonafide purchaser of
written statement schedule property verified all the title
deeds, encumbrance certificates, possession of their
vendors, revenue records in respect of the property and
with the due diligence purchased the same for the
32 O.S.4091/2004
valuable consideration. The plaintiff and his brothers
jointly executed various general power of attorneys in
favour of L.S.Harish Rao, H.Jayaram, C.Venugopal,
Sudha Gayakvad and others. Therefore, the suit is also
bad for misjoinder and non-joinder of necessary parties.
On that ground also, the suit of the plaintiff is not
maintainable.
The plaintiff is not at all in possession of the
schedule property or the written statement schedule
property. The Court fee paid by the plaintiff is
insufficient. The market value of the schedule property
is more than five crores. The plaintiff is required to pay
the Court fee as per the market value of the property
under Section 24(A) of Karnataka Court Fee and Suit
Valuation Act. Further, the plaintiff has also did not
sought for the relief of possession and without seeking
the possession suit for the declaration is not
33 O.S.4091/2004
maintainable under law and on this ground alone, the
suit is to be dismissed.
The defendant no.5 and 6 denied the plaint
averments and accordingly prayed to dismiss the suit in
the ends of the justice.
10. The main contentions of the defendant no.14
in the written statement are as under:
As per the defendant no.14, the suit of the plaintiff
itself is not maintainable since the plaintiff has not
sought for the relief of declaration nor he has proved his
ownership over the suit schedule property. Therefore,
the suit itself is not maintainable since the plaintiff is
not at all in possession of the suit schedule property.
The suit schedule property is not in existence in
the form of survey number. The entire land bearing
Sy.No. 11, 12/1, 47/1 are converted into residential
layout and the purchasers are in possession of the
respective sites.
34 O.S.4091/2004
The defendant no.14 has purchased the site no.95
measuring to the extent of 45 X 55 feet from defendant
no.12 and 13 as per the sale deed dated 7/9/2004.
Afterwards, the katha of the property was transferred to
his name by the Bruhath Bengaluru Mahanagara
Palike. He was paying the taxes to the Bruhath
Bengaluru Mahanagara Palike also.
The plaintiff and his brothers executed general
power of attorney in favour of L.S.Harish Rao in respect
of site no.7,11, 83 and 85 formed in the above said
survey numbers. This defendant also purchased site
no.95 from the plaintiff represented by the general
power of attorney holders. Subsequently defendant
no.14 availed loan from Sri Charn Souharda Co-
operative Bank by executing simple mortgage deed on
23/10/2008. Thereafter, he cleared the loan amount
and the bank discharged his loan.
35 O.S.4091/2004
Afterwards, for the want of his family and legal
necessities he sold the portion of the site no. 95 in
favour of one Sri Bhaskar Raju under the registered sale
deed dated 2/1/2014 and the remaining portion of the
land was sold in favour of one Shekar under the
registered sale deed dated 2/1/2014. For the above said
reasons, the plaintiff has no manner of right, title,
interest or possession over the schedule property. Way
back in the 1999 itself, the plaintiff and his brothers
sold the property and therefore they are having no
rights over the same. The defendant no.14 is the
bonafide purchaser of site no.95.
The suit of the plaintiff is also bad for misjoinder
and non-joinder of the necessary parties. The Court fee
paid by the plaintiff is insufficient. Without seeking the
cancellation of the sale deed, the plaintiff has got no
rights in order to file the suit.
36 O.S.4091/2004
This defendant also denies each and every
averments made in the plaint and prays to dismiss the
suit.
11. On the basis of the pleadings of the parties,
my predecessor in office has framed the following
issues and additional issues for consideration:
(1) Whether plaintiff proves his
lawful possession over the suit
schedule property as on the date
of the suit?
(2) Whether plaintiff proves the
alleged interference of defendants
1 to 9 in the suit schedule
property?
(3) Whether plaintiff is entitled for
permanent injunction against
defendants 1 to 9 as prayed?
(4) Whether plaintiff is entitled for
mandatory injunction against
defendant no.10 as prayed?
37 O.S.4091/2004
(5) What decree or order?
ADDITIONAL ISSUE FRAMED ON
11/11/2010:
(1) Whether defendant no.11 proves
that he is the bonafide purchaser
of site no. 83 and he is in lawful
possession and enjoyment of the
same as contended in para no.7
of his written statement?
ADDITIONAL ISSUES FRAMED ON
30/1/2014:
(1) Whether defendant no.4 proves
that the site purchased by him is
not coming within the area
allotted to the plaintiff as per the
compromise decree effected in
O.S.4706/97?
(2) Whether defendant no.4 proves
that, he is innocent purchaser of
suit property for valuable
consideration and he is in
possession of the suit property
since then?
(3) Whether he further proves that,
the suit property was not allotted
to the plaintiff in the compromise
effected in O.S.No.4706/1997?
38 O.S.4091/2004
(4) Whether declarative relief sought
by plaintiff are barred by time?
ADDITIONAL ISSUES FRAMED ON
18/06/2015:
(1) Whether the plaintiff proves that
he is the absolute owner of the
suit schedule property?
(2) Whether the defendant No.3
proves that late Chengaiah father
of the plaintiff formed a layout in
Sy.Nos. 11, 12/1 and 47/1 at
Kothnur village and the sit Nos.
92 and 93 forming part of the
said layout vide khata No.857 fell
into the share of the plaintiff's
brothers late Sri Rajashekar and
late Sri Mani and she acquired
the title over the site Nos. 92 and
93 through registered sale deeds?
(3) Whether the defendant No.4
proves that late Chengaiah,
father of the plaintiff formed a
layout in Sy.No. 11, 12/1 and
47/1 at Kothnur vilalge and the
site Nos. 92 and 93 forming part
of the said layout vide khata
No.857 fell into the share of the
plaintiff's brothers late Sri
Rajashekhar and late Sri Mani
and she is the owner of site No.91
having acquired title over the said
site through registered sale deed?
39 O.S.4091/2004
(4) Whether the plaintiff proves that
he is in possession and
enjoyment of the suit schedule
properties?
(5) Whether the plaintiff is entitled
for the relief of permanent
injunction against defendants 1
to 9?
(6) Whether the plaintiff is entitled
for decree of mandatory
injunction against defendant
no.6?
(7) Whether the defendant proves
that there is no cause of action to
the suit?
(8) Whether the defendants 3 and 4
prove that the plaintiff has no
cause of action?
(9) Whether the plaintiff is entitled
for the relief of declaration as
prayed for?
ADDITIONAL ISSUE FRAMED ON 5/6/2016:
(1) Whether the defendant No.14
proves that he is the bonafide
purchaser of the suit schedule
property?
40 O.S.4091/2004
(2) Whether suit of the plaintiff is
bad for mis-joinder and non-
joinder of necessary parties?
(3) Whether suit of the plaintiff is
properly valued and Court fee
paid is sufficient?
12. In order to prove the case, the plaintiff is
examined himself as PW.1 and got marked Ex.P1 to
Ex.P17 and closed his side of evidence. On behalf of the
defendants, DWs. 1 to 9 are examined, and got marked
Ex.D1 to Ex.D225 and closed their side of evidence. On
behalf of the Court, Ex.C1 to Ex.C4 are got marked.
13. Heard both sides and perused the entire
records of the case. The advocate for the plaintiff and
advocate for the defendant no.3 to 6 and 14 filed written
arguments from their side and also produced list of
authorities.
14. My findings on the above issues are as under:
ISSUES FRAMED ON 16/1/2007:
Issue No.1: In the negative;
Issue No.2: In the negative;
Issue No.3: In the negative;
41 O.S.4091/2004
Issue No.4: In the negative;
Issue No.5 As per final order; for the
following:
ADDITIONAL ISSUE FRAMED ON 11/11/2010:
Addl. Issue No.1: Partly in the affirmative;
ADDITIONAL ISSUES FRAMED ON 30/1/2014:
Addl. Issue No.1: In the affirmative;
Addl. Issue No.2: In the affirmative;
Addl. Issue No.3: In the affirmative;
Addl. Issue No.4: In the affirmative;
ADDITIONAL ISSUES FRAMED ON
18/06/2015:
Addl. Issue No.1: In the negative;
Addl. Issue No.2: In the affirmative;
Addl. Issue No.3: In the affirmative;
Addl. Issue No.4: In the negative;
Addl. Issue No.5: In the negative;
Addl. Issue No.6: In the negative;
Addl. Issue No.7: In the affirmative;
Addl. Issue No.8: In the affirmative;
Addl. Issue No.9: In the negative;
ADDITIONAL ISSUE FRAMED ON 5/6/2016:
Addl. Issue No.1: In the affirmative;
Addl. Issue No.2: In the affirmative;
Addl. Issue No.3: In the negative;
42 O.S.4091/2004
15. ISSUE NO.1 TO 3, ADDITIONAL ISSUES
1, 4 TO 6 AND 9 FRAMED ON 18/6/2015 : Since
these issues are interlinked to each other, I would like to
discuss the same to avoid repetition.
16. With regard to the original ownership of the
properties covered under Sy.No. 11, 12/1 and 47/1
measuring to the extent of 5 acres 2 guntas in toto
belongs to one Chengaiah who has purchased those
lands as per the registered sale deed. There is no
dispute in between the parties with regard to the
ownership of Chengaiah in respect of the suit schedule
property. Ex.P1 is the registered sale deed dated
21/7/74 executed by one Narayana and others with
respect to Sy.No. 11 measuring to the extent of 2 acres.
Ex.P2 is also the registered sale deed dated 31/3/1972
which is executed in favour of Mangamma who is the
43 O.S.4091/2004
wife of Chengaiah in Sy.No. 12/1 measuring to the
extent of 1 acre 30 guntas. So, with regard to the
original owners of the suit schedule property, there is no
dispute between the parties.
17. There is also no dispute in between the
parties with regard to the four brothers i.e., C.Nagaraj
who is the plaintiff, C.Rajashekar, C.Mani,
C.Jayachandra who are the children of these Chengaiah
and Mangamma. As per the plaint averments, the
plaintiff has initiated the suit for partition against his
brothers in O.S.4706/97. The said suit was decreed and
later on a final decree was passed as per Ex.P3 which is
produced by the plaintiff. As per Ex.P3, the suit
schedule properties came to the possession of the
plaintiff. The real differences of opinion in between the
plaintiff and defendants started here. On the basis of
Ex.P3, the plaintiff is contending that he is the owner
and in possession of the suit schedule properties.
44 O.S.4091/2004
However, on perusal of Ex.P3 wherein it is clear that,
schedule 'A' schedule property in O.S.4706/97 which
are allotted in favour of the plaintiff C.Nagaraju as per
the final decree proceedings. As per the recitals of the
final decree proceedings schedule 'A' is mentioned in the
green colour which is area no.1 and area no.2 is allotted
in favour of the plaintiff. It is pertinent to note here
that, the measurement of the area no.1 and area no.2 in
Sy.No. 11, 12/1, and 47/1 of Kothanur village which is
allotted in favour of the plaintiff is not mentioned in the
final decree proceedings. However, the schedule 'A'
properties mentioned in the final decree proceedings
clearly shows that 'A' schedule properties are
agricultural dry land bearing Sy.No. 11 of Kothanur
village, Uttarahalli hobli, Bengaluru south taluk
consisting of 2 acres. As per the FDP, the plaintiff is
only entitled to the green colour shaded portion which is
45 O.S.4091/2004
in the sketch annexed to the FDP only and he is not
entitled to the other lands in that proceedings.
18. The learned counsel for the plaintiff
submitted that, the entire suit schedule properties came
to his possession by virtue of the above final decree
proceedings and even there is no dispute with regard to
his ownership from the side of the defendant. Therefore,
he is in possession and enjoyment of the property even
today as on the date of filing of the suit, therefore
entitled for the reliefs sought by him.
19. In support of his claim, he has stated that,
the RTC extracts which are produced by him from
Ex.P11 to Ex.P13 which shows the property is still
agricultural in nature and they were not converted in
order to form the layout as well as sites as contended by
the defendants. However, it is well known principle that,
the RTC extracts will not confer absolute right, title over
46 O.S.4091/2004
the property and its entries cannot be taken as
conclusive proof. Further, on perusal Ex.P11 to Ex.P13,
although there is a mention that, it is agricultural
property in column no. 9 of that RTC, it is clearly
mentioned that niveshana means it is site. So, the
contention of the plaintiff that, the RTC extracts clearly
shows that the nature of the suit schedule property still
agriculture cannot be believable.
20. The learned counsel for the defendants
submitted that, the suit itself is framed by the plaintiff
not in a correct manner. No doubt, the suit schedule
property although mentions with regard to the extent of
Schedule A to C property, boundaries of the properties
are mentioned. According to the suit 'A' schedule
property which is measuring out of 20 guntas out of 2
acres in Sy.No. 11 of Kothanur village, the suit 'B'
schedule property measuring to the extent of 30.5
guntas of land excluding 1 gunta of karab out of 3 acres
47 O.S.4091/2004
2 guntas in Sy.No. 12/1 and 47/1 of Kothanur village
are not described with the boundaries of the property.
The plaintiff himself contended that suit 'A' schedule
property is measuring to the extent of 2 acres in Sy.No.
11 out of which he is claiming the 20 guntas of the land
and in 'B' and 'C' schedule lands, though it is measuring
3 acres 2 guntas, he is claiming 30.5 guntas in those
lands. However, where that particular 20 guntas of the
land in Sy.No. 11 and where that 30.5 guntas in Sy.No.
12/1 and 47/1 of Kothanur village comes is not
explained in the plaint. In an injunction suit, it is
mandatory on the part of the plaintiff in order to
describe his properties with boundaries in order to
ascertain the correct location of the properties for which
he is claiming the relief. As rightly contended by the
advocate for the defendant, the suit of the plaintiff lacks
in this regard.
48 O.S.4091/2004
21. The second contention taken by the
defendant is that, the plaintiff has relied upon the rough
sketch in order to ascertain his properties as per the
final decree proceedings. It is pertinent to note here
that, the sketch prepared in the final decree proceedings
is not produced by the plaintiff in support of Ex.P3. So,
it is clear that, Ex.P3 is incomplete document. Unless
and until, the rough sketch produced by the plaintiff
matches with the sketch prepared in Ex.P3, the Court
cannot come into conclusion that whatever the
properties claimed by the plaintiff under final decree
proceedings are same as that of the suit 'A', 'B' and 'C'
properties claimed in the present suit.
22. The learned counsel for the plaintiff produced
Ex.P4 which is the rough sketch in order to show the
division of the properties. It is important to note here
that, the schedule mentioned in Ex.P4 is not matching
with the contents of the Ex.P3 wherein the boundaries
49 O.S.4091/2004
of area no.1 which is allotted in favour of the plaintiff
shaded in green colour is entirely different. If at all
Ex.P4 is a correct document, if it is in consonance with
final decree proceedings, then the boundaries
mentioned in Ex.P3 pertaining to the share of the
plaintiff should be in consonance with the boundaries
mentioned as per Ex.P3. Therefore, in this regard also,
the case of the plaintiff does not holds good. So, the
identity of the property in order to prove the possession
or the title over the suit schedule property is not
disclosed by Ex.P4 produced by the plaintiff. So, the
suit of t he plaintiff lacks in this aspect also. In the
absence of non-production of the original sketch which
is the part of Ex.P3, it is not possible to prove the exact
location and identity of the schedule property.
23. The learned counsel for the defendant
vehemently submitted that he has produced Ex.D75
which is the application filed by the plaintiff for the
50 O.S.4091/2004
purpose of change of katha. As per this document,
properties allotted in favour of plaintiff is demarcated in
green colour which is the skech produced in
O.S.4706/97. As per this document, the plaintiff has
got 60 X 60 feet in Sy.No. 12/1, 60 X 380 feet in Sy.No.
47/1 and 30 X 40 feete in Sy.No. 47/1. This document
shows that, plaintiff is not entitled to any share in
Sy.No. 11. Even this aspect is clearly mentioned in the
sketch annexed with Ex.D75. The boundaries sshown
to the plaintiff share is altogether different from
boundaries mentioned in the suit schedule. The plaintiff
has not given any reasons in order to prove that the
measurement as well as the boundaries stated in plaint
as well as amended plaint are same measurement as
that of Ex.P3 and Ex.D75 sketch.
24. This aspect is also admitted by PW.1 in his
cross-examination. In the cross-examination dated
29/1/2009, in page no.10, para no.14 PW.1 clearly
51 O.S.4091/2004
admitted that, "In Ex.P4, the share given to me in
the partition suit is not separately marked and
shown". Further he deposed that "In O.S.4706/97 for
partition to get my 1/4th share in the ancestray
property. The 1/4th share is not shown in Ex.P4."
In page no.11, he further deposed that "It is true that,
Ex.P4 does not depict the individual shares of me
and my brothers. It is false to say that we have not
shown our specific share in Ex.P4 on the ground
that Sri Venugopal and others have already sold
sites to various persons by the time we get
compromise decree." This admission from the side of
PW.1 clearly shows that Ex.P4 is not a clear document
nor it is prepared as per the shares allotted to the
parties in Ex.P3. Without the correct location with
regard to the suit schedule lands the plaintiff cannot
claim the injunctive reliefs from the hands of the Court.
52 O.S.4091/2004
25. On the one hand, on the basis of the RTC
extracts, the plaintiff is contending that, the nature of
the suit schedule property is still agriculture. However,
even in the RTC extracts it is clear that the word 'site'
is clearly reflected in the column no.9 of the RTC. It is
further admitted by the PW.1 in his cross-examination.
In page no.4 of cross-examination of the PW.1, in para
no.5, he clearly admitted that, "When defendant no.7
purchased the suit schedule lands from me. From
that onwards, I came to know about him. About 12
years back, I sold the suit schedule lands to
defendant no.7. I do not know the sale
consideration of those lands at the time of sale deed
executed in favour of defendant no.7." In para no.6
of the depositions, he clearly admitted that, "On
21/9/1995, the lands were sold to defendant no.7. I
have signed the agreement of sale on the said day.
In the agreement of sale, on that date, four persons
53 O.S.4091/2004
are involved. The recitals of the agreement of that
date are true and correct."
26. In page no.5 of cross-examination of the
PW.1, in para no.8, PW.1 further admitted that "In an
area of 5 acres 2 guntas of the land in the property
of the suit schedule land, there are about 5 to 6
building in existence. The remaining area is lying
vacant. I do not know whom those 5 to 6 buildings
are belonged to. For the last 3 years, these
buildings are occupied by the persons who are
residing there...... those buildings are RCC roofed
buildings." This itself shows that, the nature of the suit
schedule property is entirely changed and there are the
sites as well as the buildings already constructed in the
suit schedule property. PW.1 clearly admitted that there
are 5 to 6 buildings already existed in 5 acres 2 guntas
of the land.
54 O.S.4091/2004
27. In further depositions in page no.7 of para
no.10, PW.1 clearly admitted that, "The purchaser
Venugopal and three others formed a layout in the
lands purchased by them and after deducting the
land utilised for road and other amenities, they
gave 25 guntas of the land to me in Sy.No. 12/1
and 47/1 as my share. I have pleaded in the plaint
regarding the agreement dated 21/9/95 and
handing over 25 guntas of the land to me after the
formation of the layout. In the year 1997, 25 guntas
of the land are handed over to me. After the
institution of the partition suit, 25 guntas of the
land was given to me." This clearly shows that, prior
to the filing of the suit for partition itself, 25 guntas of
the lands are given to the plaintiff in Sy.No. 12/1, and
47/1. However, plaintiff himself clearly admitted that in
the partition suit filed by him it is not pleaded by him
that, they have executed agreement of sale dated
55 O.S.4091/2004
21/9/95 and 25 guntas of the lands are allotted in
favour of him.
28. In page no.9 of cross-examination of the
PW.1, in para no.11, PW.1 clearly admitted that, he
know the defendant no.7 from 1975 itself. He clearly
admitted that, on 21/9/95, an agreement of sale was
executed in between the parties and the said agreement
came to be executed in respect of 5 acres of the land in
Sy.No. 12/1, 47/1 and 11.
29. It is pertinent to note here that, on careful
perusal of the cross-examination of PW.1, it is clear
that, PW.1 admitted Ex.D1 which is the agreement of
sale dated 21/9/95.
30. In para no.14 of the cross-examination, he
has clearly stated that in the sites sold by his brothers,
the purchasers have constructed the houses. In further
cross-examination, he has clearly admitted that, "In the
56 O.S.4091/2004
year 1996, sites allotted to my brothers,
Jayachandra, Rajashekar and Mani were formed. By
the time of year 1996, layout was already formed.
We have not prepared any layout plan regarding the
formation of the sites. In O.S.4706/97, we have not
pleaded about the formation of the layout. After the
execution of the agreement at Ex.D1, sites were
formed in the said lands."
31. In page no.13 of the cross-examination, he
clearly admitted that, "We have formed the sites in
the said layout in the year 1996." This depositions
itself are sufficient in order to show that the nature of
the suit schedule property are changed to the sites and
they were already constructed buildings situated in the
suit schedule property. So, the argument canvassed by
the learned advocate for the plaintiff that, the nature of
the property as agriculture still subsists does not holds
good.
57 O.S.4091/2004
32. It is pertinent to note here that, the present
plaintiff is witness to some of the documents executed
by his brothers in favour of the defendants. This matter
was admitted by him in his cross-examination. Though
he says that, he is not aware that site no. 91, 92, 93,
1A, 73, 75A and 37 are allotted to the share of his
brother Rajashekar and Mani, he clearly admitted that
sale deed has been executed to defendant no.3 in
respect of site no.93 by his brothers. The voluntary
statement given before the Court that he himself has
put the signature to that sale deed as the witness
clearly shows the conduct of the party.
33. In page no.15 of the cross-examination, he
clearly admitted that "It is true that earlier to filing of
the suit in O.S.4706/97, we had already formed
layout and got allotted sites to our respective
shares. When we got divided shares in the layout
sites, site numbers were not given to the sites." In
58 O.S.4091/2004
further cross-examination, he clearly admitted that, "It
is true that, myself and my brothers had executed
agreement of sale in respect of entire extent of 5
acres 2 guntas of the land in favour of the
defendant no.7 and 9 and Sri Shamanna and Sri
Nagaraj." The above depositions clearly shows that,
though the plaintiff is also one of the party to the
agreement of sale and admits that the layout has been
formed by them, the present suit has been filed by the
plaintiff by suppressing the material facts of the case.
34. It is pertinent to note here that, after the
amendment, the plaintiff has inserted some other
prayers and inserted some suit schedule properties in
order to claim the relief over the same. Site no.91 and
92 which are belonging to the defendant were not given
to the plaintiff in the share. However, in the present
suit, he has not produced any documents to show that
site no. 91 and 92 were given to his share. Even he
59 O.S.4091/2004
clearly admitted that, in the rough sketch at Ex.P4 also,
the site numbers are not mentioned.
35. In page no.13 of the cross-examination, he
clearly admitted that, "I have got 20 guntas in Sy.No.
11, 3 guntas in Sy.No. 12/1, and 27 guntas in
Sy.No. 47/1. I have not produced the sketch
prepared at the time of the compromise the matter
which is the part of the compromise decree. There
was no any impediment for me to obtain the said
sketch." Witness further admits that, "it is true that
without said sketch, it is difficult to identify the
property which is fallen to the share of the parties.
On the basis of the rough sketch, I am claiming
that suit schedule properties are fallen to my share.
The said rough sketch is marked in the suit as
Ex.P4." It is pertinent to note here that, though the
plaintiff is contending that, he has got 20 guntas of the
land in Sy.No. 11, 3 guntas in Sy.No. 12/1 and 27
60 O.S.4091/2004
guntas in Sy.No. 47/1, Ex.P3 does not show any
measurements. Even in the Ex.P4 which is mainly relied
by the plaintiff in order to identify his properties also
does not disclose the measurement of the properties
which is allotted in his favour. Taking the benefit of
non-mentioning of the area or measurements of the
properties which are allotted in favour of the parties,
and non-production of the original sketch which is
annexed to Ex.P3, the plaintiff has taken the advantage
of filing the suit in order to take the benefit from the
subsequent purchasers. Even in the cross-examination
dated 19/1/2016 also, he clearly deposed that "As per
the compromise, 20 guntas of the land are allotted
to my share in Sy.No. 11, my property is bounded
towards east by : Pilla Reddy property; west by :
Karagadevera inamathi property; north by :
property of Susheela Bai; and south by remaining
portion of Sy.No. 11. Above said property with
61 O.S.4091/2004
boundaries which is allotted to me is not mentioned
in Ex.P3, but it is mentioned in the sketch. I have
not produced the said sketch before the Court and
it is with defendant no.7. 0.03 guntas of land was
allotted to me in Sy.No. 12/1 and it is bounded by
east : Kothanur main road; west by: remaining
portion of 12/1; north by : road and south by:
Private property. 0.22 guntas of land was allotted to
me in Sy.No. 47/1 and it is bounded east by:
remaining portion of 47/1, west by road; north by :
road and south by : private property."
36. PW.1 himself admitted that the particulars of
the above said property fallen into his share is not
mentioned in Ex.P3, but mentioned in the sketch which
is not produced by him. He clearly admitted that the
remaining portion of the land in Sy.No. 11, 12/1 and
47/1 is allotted to his 3 brothers. There are no
62 O.S.4091/2004
documents to show about the extent and boundaries as
stated above are fallen to his share.
37. It is pertinent to note here that, in the
pleadings as well as in the arguments, the plaintiff has
specifically contended that the original sketch annexed
to Ex.P3 is misplaced and cannot be found in the Court
file. However, merely because he took such contentions,
it does not mean that the Court has to believe the rough
sketch which is Ex.P4 produced by him.
38. In earlier cross-examinations, in page no.2,
the plaintiff clearly admitted that, originally 5 acres 2
guntas of the land belongs to himself, Rajashekar,
Jayachandra and Mani. He clearly admitted that, they
are his brothers. Further, he did not deny that the
schedule property originally comes under the purview of
Kothanur village panchayat, and later on after the
formation of Bruhath Bengaluru Mahanagara Palike,
63 O.S.4091/2004
the schedule property comes under the purview of the
Bruhath Bengaluru Mahanagara Palike.
39. Though he denies with regard to the
execution of the sale deeds with respect to site no.1 in
favour of defendant no.5, he clearly admitted that the
Bruhath Bengaluru Mahanagara Palike has constructed
tar road in the said layout. He further admitted that
entire people are moving on the tar road created by the
Bruhath Bengaluru Mahanagara Palike in the suit
schedule property. He also clearly admitted that BWSSB
has issued the water connection and sewerage
connection to the entire layout.
40. In further cross-examination, he clearly
admitted that, from the year 1997, there was no
agriculture in the suit schedule property. He do not
know from the year 1997 itself, there were sites in the
property and for that reason, the revenue officials have
64 O.S.4091/2004
inserted the word 'site' in the records of the rights. He
has not filed any complaints with regard to the power of
attorney even after filing of the suit and even after the
defendants no.5 and 6 purchased the site no.1 and 2 in
the suit schedule property.
41. It is pertinent to note here that, on the one
hand, the plaintiff is contending that he is in the
possession of the property. On the other hand, he is
contending that there is no agriculture nature of the
suit schedule property from the year 1997 itself. Further
the plaintiff clearly admitted that, the purchasers are in
possession of the properties purchased by them under
the various sale deeds which are marked in the 'D'
series. The nature of the property, the description of the
property, the location of the properties is not mentioned
in the suit. More over, as contended and as described
by the plaintiff, the suit schedule property does not
exists at all. This matter is admitted by the PW.1 in his
65 O.S.4091/2004
cross-examination also. Without identifying the
boundaries, without mentioning the correct location of
the properties, the plaintiff is not entitled to the relief of
declaration as well as the injunction from the hands of
the Court.
42. In ILR 2005 KAR 884, the Hon'ble High
Court of Karnataka clearly held the above aspect.
Under the above circumstances, this Court is of the
opinion that the plaintiff has utterly failed to prove Issue
No.1 to 3 and Additional issue No.1, 4 to 6 and 9 framed
on 18/6/2015. Therefore, I answer them in the
negative.
43. ADDITIONAL ISSUE NO.1 FRAMED ON
11/11/2010: The defendant no.11 who is the
bonafide purchaser of site no.83 in his chief
examination stated that, though he has purchased site
no.83, it is not in possession of him, rather than, he
66 O.S.4091/2004
submitted that, he found that his site is in possession of
the plaintiff when he visited the property before
approaching the Court. In support of the contentions of
the defendant, he has produced Ex.D65. This sale deed
is executed by Jayachandra, Rajashekar, Mani and
Nagaraj represented by their general power of attorney
holder L.S.Harishrao in favour of defendant no.11 on
23/10/99.
44. It is pertinent to note here that, even though
DW.4 produced Ex.D65 in support of his case and in
order to establish his title over the site no.83, plaintiff
did not cross-examine him. On 27/3/2012, plaintiff
himself present before the Court and submitted that, he
has no cross-examination to DW.4. Therefore, my
predecessor has rightly taken the cross-examination of
the plaintiff to DW.4 has 'taken as nil.' An adverse
inference can be drawn against the plaintiff in this
regard. However, in the cross-examination of the DW.4
67 O.S.4091/2004
by defendant no.3 and 4, he clearly deposed that, he
has obtained the title over the property by virtue of the
sale deed executed by the parties by power of attorney
holder of them. Though he admitted that, he was not
given the possession of the said site, he clearly admitted
that he had paid the sale consideration amount to the
defendant no.1 in the above case in respect of the sites
so purchased by him. Even though he has stated that,
the number of the sites have been formed in the suit
schedule property, he do not know who is in the
possession of the sites. On perusal of the above
depositions, it is clear that, this defendant though
contended that he is the purchaser of the site no.83, he
do not know with regard to the other aspects of the
case. However, it is very much clear that, he has paid
the entire consideration of the site in favour of
defendant no.1 in the above case. Eventhough DW.4
clearly stated that, he has paid entire sale consideration
68 O.S.4091/2004
with respect to the site no.83, the plaintiff did not cross-
examined him. This version of the plaintiff itself creates
an adverse inference in his favour. More than that,
though the sale deed executed in favour of K.R.Ananda
Swaroop is challenged by the plaintiff in the present
suit, they have not cross-examined DW.4 to that effect.
Therefore, this Court is of the opinion that without
much difficulty, defendant no.11 proved that he is the
bonafide purchaser of site no.83. However, he himself in
his chief examination admitted that, the plaintiff is in
possession of site no.83, the court is of the opinion that,
he is not at all in possession of the site. Further, from
the depositions of DW.4, it is clear that, he has not
given the possession of the lands which was purchased
by him. Therefore, I answer Additional Issue No.1
framed on 11/11/2010 as partly in the affirmative.
45. ADDITIONAL ISSUE NO.1, 2, 3 FRAMED
ON 30/1/2014 AND ADDITIONAL ISSUE NO. 3
69 O.S.4091/2004
FRAMED ON 18/6/2015: Since these issues are
interlinked to each other, I would like to discuss the
same to avoid repetition.
46. The defendant no.4 who is DW.3 in the above
case is also one of the purchasers of site no.92 and 93
formed in Sy.No. 11, 12/1 and 47/1 of Kothanur village.
In her chief examination as well as in the written
statement, she has specifically contended that,
originally one Chengaiah who is the father of the
plaintiff is the owner of the 5 acres 4 guntas of land in
above survey numbers and his four sons including the
plaintiff in the year 1992 itself formed the layouts by
obtaining the layout plan from Kothanur
Grampanchayat and divided the sites among them. In
the said layout, site no. 91, 92, 93 fallen to the share of
Rajashekar and Mani and those sites did not fallen to
the share of the plaintiff.
70 O.S.4091/2004
47. Site no. 91 is purchased by the defendant
no.4 as per the registered sale deed dated 9/4/2001.
The same is marked as Ex.D47. Since there were some
mistakes in that document, a rectification deed was also
executed as per Ex.D48. After purchasing that property,
BBMP has issued the katha in favour of defendant no.4
and further she was paying taxes to the grampanchayat
earlier and later on she was paying the taxes to the
Bruhath Bengaluru Mahanagara Palike. Ex.D50 to
Ex.D64 clearly shows that defendant no.4 is in
possession of the site no.91. On perusal of Ex.D47
which is the sale deed executed by the above four
brothers represented by their general power of attorney
holder Sudha Gayakvad and Venugopal in favour of this
defendant on 9/4/2001 with respect to site no.91 for
the consideration of Rs.1,41,500/-. The schedule of the
sale deed clearly shows that, there is a road towards the
eastern side, towards the western side, there is a private
71 O.S.4091/2004
property, and towards northern side, property no.92
and to the southern side, there is a property no.90.
Though the DW.3 did not know about to whom the
plaintiff Nagaraj has executed general power of attorney,
it is clear that, on the basis of the power of attorney of
all the four brothers only, the sale deed is executed.
The defendant no.4 specifically contended that, the
purchased site does not comes under the purview of the
area allotted to the plaintiff as per the compromise
decree effected in O.S.4706/97. However, on careful
perusal of the entire cross-examination, it is clear that,
there is no cross-examination of DW.3 to that effect.
Even the plaintiff has also not stated what are all the
portions of the area which are allotted to him as per the
compromise decree. From the discussions in earlier
issues, it is clear that, the plaintiff has failed to
establish the extent of the properties which came to his
possession as per the final decree proceedings. Further,
72 O.S.4091/2004
even if he contends that he has obtained the rights over
the property by virtue of Ex.P4, it also does not mention
with regard to the extent of the properties which are
allotted to him. However, DW.4 clearly admitted that,
she can tell with regard to the boundaries of her land
wherein towards the north side, her sister's site 92 is
situated, and towards the southern side, site no.90 is
situated. The katha certificates, tax paid receipts
produced by her clearly indicates that she is in
possession of the site from 9/4/2001 itself.
48. It is pertinent to note here that, the existence
of the layout and formation of the sites in Sy.No. 11 is
admitted by PW.1 during the course of the cross-
examination. When the plaintiff admits the formation of
the layout as well as the formation of the sites, it is clear
that, from the mouth of PW.1 itself, the defendant no.4
clearly proved that she is the bonafide purchaser of site
no.91. Even the word 'site' which is reflected in the RTC
73 O.S.4091/2004
extracts clearly shows that there are the sites formed in
Sy.No. 11 itself. Actually, the burden is on the plaintiff
to show that, these sites are comes under the purview of
his share which is allotted to him as per the final decree
proceedings. However, the same was not attempted by
him. Even there is no cross-examination to that effect
from the side of the plaintiff.
49. In view of the admissions of the PW.1 with
regard to the agreement of sale dated 21/9/95 which is
Ex.P1 executed by the plaintiff and his brothers in
favour of C.Venugopal, H.G.Shamanna, H.Jayaram and
B.Nagaraj in respect of the land in Sy.No. 11, 47/1 and
12/1 totally measuring to the extent of 5 acres 2
guntas, it is clear that, the physical possession of the
land has been handed over to the purchasers. Since
Ex.D1 is admitted by PW.1, it is very clear that as on the
date of Ex.D1, the possession of the agreement schedule
property has been delivered in favour of the above
74 O.S.4091/2004
purchasers. Nothing much has been elucidated from the
mouth of DW.3 with regard to that sale deed. Even the
plaintiff himself clearly admitted that the entire lands
are converted into residential layout and the purchasers
are in possession of the respective sites as per their sale
deeds. Further, the production of the documents such
as sale deeds, rectification deeds and katha extracts,
encumbrance certificate, tax paid receipts etc., clearly
shows that, defendant no.4 is in the possession of the
site no.91. There was no cross-examination with regard
to the documents produced by the DW.3 with regard to
her sale deed, rectification deed, and tax paid receipts
etc., Therefore, indirectly the defendant no.4 has proved
her case without difficulty. On the one hand, PW.1
clearly admitted that the layout has been formed in the
year 1995 itself, and prior to filing of the suit in
O.S.No.4706/97 itself, the sites have been formed and
they have already executed the agreement in favour of
75 O.S.4091/2004
the defendants, it is clear that, from the mouth of PW.1
himself, the defendants have proved their issues
without difficulty. Even the plaintiff has failed to prove
what are all the properties allotted to them as per Ex.P3
as well as Ex.P4 before the Court. Even those
documents does not show these sites have fallen to the
share of the plaintiff as per the final decree proceedings.
Therefore, the defendant has proved Additional Issue
No. 1 to 3 framed on 30/1/2014 and Additional
issue no.3 framed on 18/6/2015 in the affirmative.
50. ADDITIONAL ISSUE NO.2 FRAMED ON
18/6/2015: The defendant no.3 is also one of the
purchaser of the site no.93 as per the registered sale
deed dated 29/10/97. She has also contended that, she
has purchased that site from defendant no.7 and 8 who
are the general power of attorney holders of the brothers
of the plaintiff C.Jayachandra, C.Rajashekar and
C.Mani. Accordingly, she has stated that, she has got
76 O.S.4091/2004
form no.10 executed to her name, revenue records are
mutated to her name, she was paying the taxes to the
Kothanur Grampanchayat and after she has paid taxes
to the Bruhath Bengaluru Mahanagara Palike. In
support of her contentions, she has produced Ex.D66 to
Ex.D70 which shows that, she has paid the taxes with
respect to the site no. 93. She has produced the sale
deed in order to support her case. Though the advocate
for the plaintiff contended that plaintiff Nagaraj is not a
party to that sale deed, and a nominal sale deed was
executed in favour of DW.2 by the fake persons, he has
failed to prove that aspect. In order to prove the rights of
the plaintiff over the site no.93, he has not produced
any documents. Though the documents produced by
the defendants are subsequent to filing of the suit, it
does not mean that they were fake and concocted. DW.2
clearly admitted that, she also having the katha
certificate as per Ex.D70 in order to show that the
77 O.S.4091/2004
property is coming under the purview of the Bruhath
Bengaluru Mahanagara Palike.
51. Even in the case of DW.2 also, it is very clear
that she has produced the documents in order to show
that she is in the possession of the property. However,
her sale deeds also though contended as not binding
upon the plaintiff, the plaintiff was not stated what is
the rights of the plaintiff over that particular property.
The documents produced by the plaintiffs failed to
establish the plaintiff is having the rights over the site
no.92 and 93. Even this aspect has been elucidated
from the mouth of PW.1 from the defendants in his
cross-examination. In the cross-examination of the
PW.1, he clearly admitted that, Ex.P3 as well as Ex.P4
does not show what are all the properties allotted to his
share and what are all the extent of properties allotted
to his share as per the final decree proceedings. From
the mouth of PW.1 himself, the defendant clearly proved
78 O.S.4091/2004
that the layout has been formed and the sites have been
formed and prospective purchasers are in the
possession and enjoyment of the sites after constructing
the building therein. This aspect is clearly discussed in
earlier issue also. Therefore, it is clear that, from the
cross-examination of the PW.1 itself, defendant no.3
clearly proved that she is the bonafide purchaser of the
site no. 92 and 93 for the valuable consideration. Even
she clearly proved that the plaintiff has not produced
any documents in order to show that these sites fell into
his share at the time of the partition. Nothing much is
elucidated from the mouth of DW.2 in her cross-
examination. Therefore, from the documents produced
by the defendant no.3, it is clear that, she is the
bonafide purchaser of the land and the plaintiff is
having no rights over the same. Accordingly, I answer
Additional Issue No.2 framed on 18/6/2015 in the
affirmative.
79 O.S.4091/2004
52. ADDITIONAL ISSUE NO.4 FRAMED ON
30/1/2014: In the written statement itself, the
defendants specifically contended that, the suit of the
plaintiff is barred by limitation. The present suit is filed
on 5/6/2004. In the original plaint, the plaintiff has
specifically stated that the defendant no.7 to 9 had no
authority in order to represent the plaint in respect of
the fraudulent sale deeds executed in favour of
defendant no.1 to 6. In the page no.7 para no.12 of the
original plaint, this aspect is clearly pleaded by the
plaintiff contending that, the defendant no.7 to 9 have
played fraud, mischief and conspiracy to the plaintiff
and executed sale deeds. So, it is clear that, at the time
of filing of the suit itself, plaintiff is completely aware of
the execution of the different sale deeds in favour of the
defendants. However, It is pertinent to note here that,
originally the suit is only filed for permanent injunction
restraining the defendant no.1 to 9 from interfering into
80 O.S.4091/2004
the schedule property and further for the mandatory
injunction against the defendant no.10 and other reliefs.
Though the plaintiff is completely aware of the sale
deeds executed in favour of the defendant no.1 to 6, he
has not sought for the relief of declaration contending
that, the particular sale deeds are not binding upon him
in the year 2004 itself. However, only after the
amendment, he has sought for the relief of declaration
contending that he is the absolute owner of the property
and the different sale deeds executed in favour of
different defendants are not binding upon him. If at all
the plaintiff is aware of those sale deeds at the time of
filing of the suit itself, what prevented the plaintiff to
seek for the relief of declaration with regard to that
particular sale deeds is not explained in the pleadings.
53. Further, on perusal of the Court records, it is
clear that, the amendment sought by the plaintiff with
regard to the declaration and other consequential reliefs
81 O.S.4091/2004
challenging the sale deeds of the defendants, such as
sale deed dated 17/11/2000, 9/4/2001, 5/4/2003,
23/10/99, 14/7/2000, 7/9/2004 is sought by him only
after the amendment application filed by him on
16/6/2012. If at all the plaintiff had the knowledge of
those sale deeds at the time of filing of the suit itself i.e.,
on 5/6/2004 itself, he could have sought the relief of
declaration within 3 years from the institution of the
suit itself. However, as rightly contended by the
advocate for the defendant, the suit has been converted
into a declaratory suit only after the lapse of 8 years
from the date of filing of the suit. Article 58 of the
Limitation Act is very clear in this regard. The suit for
the declaration is to be filed within 3 years from the date
of knowledge.
54. This aspect is further clear from the
depositions of the PW.1 wherein he has clearly
submitted that, he came to know about the defendant
82 O.S.4091/2004
no.7 about 12 years back when he sold the properties in
favour of defendant no.7. In para no.6 of page no.4 of
his cross-examination, he has clearly stated that he has
signed the agreement of sale on the said day i.e., the
date of execution of the agreement of sale and in the
agreement of sale on that date, four persons are
involved, they are defendant no.7 and 9, Shamanna and
Naganna. Further in page no.13, he has clearly
admitted that he has formed the sites in the said layout
in 1996 itself, this itself is sufficient to show that as on
the date of agreement of sale itself, the plaintiff is
completely aware that they are going to form the layout
and sale deeds are going to be executed. Further, a
clear-cut admission that, they have formed the sites in
the said layout in the year 1996 itself clearly shows that
as on 1996 itself, the plaintiff is completely aware that
the layout has been formed, the sites are formed and
sale deeds have been executed in favour of prospective
83 O.S.4091/2004
buyers. However, instead of comprehensive suit for
declaration and injunction in the year 1999 itself, the
plaintiffs have filed the suit for bare injunction in the
year 2004 and afterwards sought for amendment in the
year 2012 which clearly shows that the suit is
hopelessly barred by limitation. Thereby, I answer
additional Issue No.4 framed on 30/1/2014 in the
affirmative.
55. ADDITIONAL ISSUE NO.1 FRAMED ON
5/6/2016: In the written statement filed by the
defendant no.14, he has specifically stated that he has
purchased site no.95, old katha no.857 measuring to
the extent of 45 X 55 feet from the defendant no.12 and
13 as per the sale deed dated 7/9/2004. Subsequently,
the katha has been changed to the name of defendant
no.14 by Bruhath Bengaluru Mahanagara Palike. This
defendant is also paying taxes to the Bruhath
Bengaluru Mahanagara Palike.
84 O.S.4091/2004
56. In the chief examination of defendant no.14
who is examined as DW.5, this aspect has been clearly
stated by him. It is the case of defendant no.14 that, the
plaintiff and his brothers have executed a general
power of attorney in favour of L.S.Harishrao in respect
of site no.7, 11, 83 and 95, and formed the layouts and
the defendant no.12 and 13 have purchased the site
no.95 from the plaintiff represented by the general
power of attorney holders. Afterwards, the defendant
no.14 availed loan from the bank by executing mortgage
deed and further the same was clear and later on for his
legal necessity, he sold one portion of that site in favour
of C.Bhaskar Raju and another portion in favour of
Shekar under the registered sale deed dated 2/1/2014.
57. In support of his case, he has produced the
certified copy of the sale deed dated 14/7/2000,
certified copy of the form no.9, certified copy of the form
no.10, the sale deed dated 7/9/2004, B- khata extract
85 O.S.4091/2004
issued by the Bruhath Bengaluru Mahanagara Palike,
simple mortgage deed, sale deed dated 2/1/2014, tax
paid receipt, sanction plan, electricity demand bills and
photographs. These documents clearly shows that, the
defendant no.14 is the bonafide purchaser of the land in
site no.95 for the valuable consideration.
58. In the cross-examination of the DW.5, he
clearly admitted that, "The defendant no.14
purchased the written statement schedule property
from one Anwar Ali, Singaravelu. I do not know the
sale consideration." In further cross-examination, the
DW.5 clearly deposed that "At present in the property,
there is a building. The present owner of the
property Bhaskara Raju and Shekar have
constructed the building. The defendant no.14 has
sold the property in favour of the present owner
Bhaskara Raju and Shekar in the year 2014." The
above depositions clearly shows that, the defendant
86 O.S.4091/2004
no.14 has purchased the property for valuable
consideration and later on he has sold that property in
favour of Bhaskara Raju and Shekar in the year 2014
itself. Further the clear-cut admissions from the mouth
of DW.5 that, there is a construction in site no.95 itself
shows that, the layout has been formed and sites were
formed and the prospective purchasers are in the
possession and enjoyment of the site.
59. All the above transactions are done by the
power of attorney holders. Ex.D125 which is produced
by the defendant is highly objected by the advocate for
the plaintiff since it is xerox copy. However, that
document, is proved by the DW.5 in his evidence.
60. Though in Ex.D125, the name of plaintiff is
not mentioned, it does not mean that it is a created
document. Even the witness says that he cannot tell
whether the signature of L.S.Harish Rao is there or not
87 O.S.4091/2004
in Ex.D125. Even there is no mention of the survey
number in that document. By denying the Ex.D125,
plaintiff want to establish that sale deed executed in
favour of defendant no.14 is fake and forged one. Even
DW.5 clearly admitted that, the execution of the power
of attorney from the side of Nagaraj is not seen by him.
61. Whatever may be the attempts of the plaintiff
in order to deny the rights of defendant no.14 over site
no.95 in the cross-examination, he clearly admitted
that, the schedule site bearing no.95 is sold by
defendant no.14. In page no.15, para no.3, the plaintiff's
counsel has asked the question that, since the
defendant no.14 has sold the schedule properties in the
year 2014 itself, he has no rights over the suit schedule
property. The DW.5 clearly admitted as follows:
"It is correct to suggest that in the written
statement we have stated that the plaintiff along
88 O.S.4091/2004
with his brothers have formed the layout. It is not
correct to suggest that the plaintiff has not at all
sold any sites in favour of any persons. It is not
correct to suggest that we have no rights over the
suit schedule property. Since I have sold the suit
schedule property in the year 2014 itself, I have no
right over the suit schedule property as of today."
62. This statement given by DW.5 clearly shows
that the plaintiff has no right and is not at all in
possession of site no.95 in order to seek the relief of
declaration with respect to that aspect. The admissions
given by the DW.5 that, he has alienated the schedule
properties in the year 2014 in favour of Bhaskara Raju
and Shekar shows that the plaintiff is not the titleholder
of that property. Per contra, from the discussions in the
previous issues, it is clear that the plaintiff has failed to
establish the site no.95 came to his share as per Ex.P3
and Ex.P4 documents. Unless and until the plaintiff
89 O.S.4091/2004
establishes his rights over each and every sites which
are alleged to be purchased by the defendants, the
plaintiff cannot contend that the sale deeds executed by
the power of attorney holders in favour of the
defendants as well as the prospective purchasers are
void and not binding upon him. Since Ex.P3 and Ex.P4
documents does not disclose what are all the propeties
came to the share of the plaintiff, and even
measurement of that properties also, the court is of the
opinion that, the plaintiff cannot seek for the relief of
declaration contending that whatever the sites
purchased by the defendant no.3, 4, 5, 14 or any of the
prospective purchasers as void. Even this aspect has
been clearly elucidated from the mouth of PW.1 at the
time of his cross-examination. Therefore, from the
documents produced by the defendant no.14 and also
from the depositions of the PW.1, it is clear that the
layout has been formed and the sites are formed and
90 O.S.4091/2004
the prospective purchasers are in the possession and
enjoyment of the properties. Thereby, I answer
Additional Issue No.1 framed on 5/6/2016 in the
affirmative.
63. ADDITIONAL ISSUE NO.7 AND 8 FRMED
ON 18/6/2015: Since these issues are interlinked to
each other, I would like to discuss the same to avoid
repetition.
64. One of the contention taken by the
defendants in their written statement is that, the suit of
the plaintiff is bad for want of cause of action.
65. On perusal of the entire averments of the
plaint as well as the admissions given by the PW.1
during his cross-examination, it is very clear that, the
plaintiff is not at all in possession of the suit schedule
property. Further, he clearly admitted that, Ex.D1
agreement of sale has been executed on 21/9/95 itself.
91 O.S.4091/2004
The entire story of the plaintiffs and the defendants with
regard to the formation of the layout started from the
execution of the Ex.D1 itself. It is very clear that, as on
the date of the agreement of sale itself, the sites were
formed as well as the layout has been formed. Even
PW.1 clearly admitted that, in the earlier litigation itself,
they have not stated with regard to the agreement of
sale dated 21/9/95, as well as the formation of the
layout. PW.1 clearly admitted that in the year 1996
itself, the layout has been formed, the sites have been
created, and prospective purchasers are in the
possession of the sites after constructing the buildings
therein. When the matter is like this and when PW.1
clearly admits in this aspect, on what account he has
filed the present suit for permanent injunction,
mandatory injunction and further for the declaration
after the amendment in 2012 against the defendant is
not clear. Even as per this Court, the cause of action
92 O.S.4091/2004
stated in the plaint is on 27/6/97, the date of final
decree, the date of interference and subseuqently on the
dates where the defendant claims the rights over the
suit schedule property under the sale deeds alleged
executed in their favour, subsequently on the dates
when L.S.Harishrao executed sale deed in favour of
various persons within the jurisdiction of this Court.
66. If at all as contended by the plaintiff in para
no.14, the first cause of action for the suit arose on
27/6/97, then definitely the plaintiff cannot seek for the
relief of declaration. Because, the suit itself is
completely barred by the limitation. Further, if the
plaintiff contends that, the date of interference is the
cause for filing of the suit, he does not say on which
particular date, the defendants interfered into the suit
schedule property. If at all, the cause of action is stated
on 26/5/2004 as stated in the para no.14 of the original
plaint, then the plaintiff has not stated what is the
93 O.S.4091/2004
interference caused by the defendants no. 1 to 9 to the
plaintiff's property. More than that, the plaintiff has
deliberately failed to prove his possession over the suit
schedule property. Then apprehension of the cause of
action cannot be arisen from the side of the defendants.
When the plaintiff himself failed to prove that he is not
at all in possession of the suit schedule properties, then
he cannot contended that on that particular dates, the
defendants interefered and there is a apprehension in
the mind of the plaintiff, that on the basis of the
documents, the defendants are going to dispossess him
from the suit schedule property. Therefore, it is clear
that the suit itself is bad for want of cause of action.
Thereby, I answer Additional Issue No.7 and 8
framed on 18/6/2015 in the affirmative.
67. ADDTIONAL ISSUE NO.2 FRAMED ON
5/6/2016: When the original plaint has been filed,
the plaintiff has made Sri Balachandra Rao Jadav and 9
94 O.S.4091/2004
others as the party to the suit. However, after the
amendment, he has inserted 4 other defendants
contending that they are the purchasers of the suit
schedule property under different sale deeds. It is
pertinent to note here that, in the written statement
itself, the defendants have specifically contended that so
many sale transactions have been occurred in between
the parties and various sites have been formed in the
suit schedule property. Even defendant no.14 in his
written statement specifically contended that, after
purchasing site no.95, he has sold that property in
favour of one Bhaskar Raju as well as Shekar by
different sale deeds. Even though this aspect is clearly
stated by the defendant no.14. Plaintiff has not made
these persons as party to the suit. Therefore, as rightly
contended by the defendants, it is clear that, the suit is
bad for non-joinder of the necessary parties.
95 O.S.4091/2004
68. It is pertinent to note here that, the entire
transactions has been done by the four brothers. Except
the plaintiff, the other three brothers have not
challenged any of the sale deeds. Even these brothers
are not made as the party to the suit. If at all the
plaintiff is contending that, the layout has not been
formed and no sites have been formed and no sale
transaction has been conducted, he could have made
his brothers as the parties to the suit who are very
necessary for the effective adjudication of the case.
69. The plaintiff has specifically admitted Ex.D1.
In Ex.D1, there are four purchasers. Out of these four
purchasers, the plaintiff has not made H.G.Shamanna
and B.Nagaraju as the party to the suit. In the same
way, in Ex.D25 which is the general power of attorney
executed by plaintiff and brothers in favour of
L.S.Harishrao, the defendant no.14 purchased the site
no.95 from the plaintiff and his brothers represented by
96 O.S.4091/2004
the general power of attorney holder. The plaintiff did
not made L.S.Harishrao as also party to the suit. Under
the above circumstances, the court is of the opinion
that, since the plaintiff has not made the above parties
as the necessary parties to the suit. The suit is bad for
non-joinder of necessary parties also. Accordingly, I
answer Additional Issue No.2 framed on 5/6/2016
in the affirmative.
70. ADDTIONAL ISSUE NO.3 FRAMED ON
5/6/2016: One of the contentions taken by the
defendants in the written statement is that, the Court
fee paid in the suit is insufficient. This plaintiff has
admitted Ex.D1. Further, as per the plaintiff, he valued
the properties as per Section 26(c) of Karnataka Court
Fee and Suit Valuation Act for mandatory injunction at
Rs.1000/- and he has paid Court fee of Rs.25/- to that
effect. Further with respect to the third relief to seek the
direction to the defendant no.10 in order to recall the
97 O.S.4091/2004
house building license, he has valued the Court fee as
per Section 47(2) of the Karnataka Court Fee and Suit
Valuation Act and paid Court fee of Rs.25/-. After the
amendment, the suit was changed to declaration.
Afterwards, it is very clear that the schedule properties
are not agricultural properties and plaintiff himself has
clearly deposed that the layout has been formed and the
property came under the purview of the Bruhath
Bengaluru Mahanagara Palike. No doubt, if at all the
suit schedule properties are measuring 50.5 guntas,
then the plaintiff has to pay the Court fee as per Section
24(a) and Section 38 of the Karnataka Court Fee and
Suit Valuation Act . Further, this Court is of the opinion
that since the plaintiff has sought the relief of
declaration he has to pay the Court fee as per the
market valuation of the suit schedule property and
therefore whatever the Court fee paid by him in the suit
98 O.S.4091/2004
is highly insufficient. Thereby, I answer Additional
Issue No.3 framed on 5/6/2016 in the negative.
71. ISSUE NO.4: The suit of the plaintiff was
for declaration, permanent injunction and also for the
mandatory injunction. The depositions of PW.1 clearly
shows that Ex.D1 has been admitted by him. When the
plaintiff admits the Sale Agreement and also admits that
the layout has been formed in the year 1996 itself, and
further he admits that at present the nature of the
schedule property is completely changed and the layout
and sites have been formed and the prospective
purchasers are in the suit schedule property, by
constructing the houses and buildings therein, it is
clear that the plaintiff has failed to establish his rights
over the suit schedule property. Even PW.1 clearly
admitted that they four brothers have executed the
agreement of sale in favour of Venugopal and others.
When the plaintiff admitted the agreement of sale and
99 O.S.4091/2004
also the recitals of the agreement and received the
consideration, and further there are documents to that
effect which clearly shows that the plaintiff has received
the consideration from the purchasers, he has no rights
in order to challenge those sale deeds. Even as
discussed in earlier issue, he cannot challenge the
documents in view of the aspect of limitation. On the
one hand, the plaintiff wants to establish his rights over
the property, on the other hand, he clearly admitted
that with the consent of all the four brothers
themselves, the layout has been formed in the year
1996 itself. Further on perusal of the earlier suit
documents and final decree passed in that suit, it is
very clear that decree itself is collusive in nature.
Further, non-mentioning of the survey numbers or sites
allotted in favour of the each shareholders in the Ex.P3
document, and non-production of the original sketch
annexed to the Ex.P3 clearly shows that, the plaintiff
100 O.S.4091/2004
wants to take the advantage of that aspect in the
present suit. In order to seek the mandatory relief
against the defendant no.10, the plaintiff has to
establish his rights over the suit schedule property.
Unless and until the plaintiff establishes the rights over
the properties of the defendant no.6, he cannot seek for
the relief of mandatory injunction against defendant
no.10 to recall the house building license granted in
favour of the defendant no.6. Thereby, I answer Issue
No.4 in the negative.
72. ISSUE NO.12: From my above discussions
and reasoning, the suit of the plaintiff is liable to be
dismissed with costs. The party should not take the
advantage in order to defeat the stream of the justice. In
the present suit, the plaintiff has filed the suit though
he is completely aware of entire transactions and he is
admitted the transactions such as formation of the sites
and layouts. Way back in the year 1995 itself, the
101 O.S.4091/2004
plaintiff is completely aware of all his acts by actively
participating in entire transactions. However, the
present suit has been filed in order to harass the
defendants by suppressing the material facts of the case
after the lapse of 10 years from the date of the
agreement which is admitted by the plaintiff himself. It
is clear that as rightly contended by the Hon'ble
Supreme Court of India in the case of Dalip Singh Vs.
State of UP and others, the plaintiff being a litigant
who attempts to pollute the stream of the justice or
who touches the pure fountain of justice with
tainted hands. The plaintiff has not approached the
Court with clean hands within limitation and although
admitted entire transactions attempted to take the
shelter contending that the documents executed in
favour of the defendants are fraudulent. However, in his
all attempts, he failed to prove his case. Therefore, this
Court is of the opinion that the suit of the plaintiff is to
102 O.S.4091/2004
be dismissed with costs. In the result, I pass the
following:
The suit of plaintiff is hereby dismissed
with cost of Rs.5,000/-.
Draw decree accordingly.
***
[Dictated to the Judgment Writer directly on computer, Script corrected, signed and then pronounced by me, in the Open Court on this the 7 th day of March 2022.] [PRASHANTHI.G] XXVII Additional City Civil Judge. BANGALORE.
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 Sri C.Nagaraj
2. List of witnesses examined on behalf of the Defendant/s:
DW.1 B.R.Jadav
DW.2 T. Leelavathi
DW.3 Mamatha.T.
DW.4 K.R. Anand Swaroop
DW.5 G. Ravi Raju
103 O.S.4091/2004
DW.6 Ramachandra.L.
DW.7 Jagadish
DW.8 M Devendra
DW.9 H. Jayaram
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P1 Certified copy of the sale deed dated 20/7/1974.
Ex.P2 Another certified copy of the sale deed dated 31/3/1972.
Ex.P3 Original partition decree obtained in O.S.No.4706/97.
Ex.P4 Rough sketch showing the division of properties in the partition.
Ex.P5 Encumbrance certificate Ex.P6 Certified copy of the sale deed dated 17/11/2000.
Ex.P7 Certified copy of the another sale deed dated 17/11/2000 pertaining to different property.
Ex.P8 Certified copy of sale deed dated 9/4/2001.
Ex.P9 Certified copy of sale deed dated 9/4/2001.
Ex.P10 Certified copy of one more sale deed dated 5/4/2003.
104 O.S.4091/2004
Ex.P11
to 3 RTC extracts
Ex.P13
Ex.P14 Certified copy of the sale deed
dated 26/3/2003.
Ex.P15 Certified copy of sale deed dated
23/10/1999.
Ex.P16 Certified copy of the sale deed
dated 14/7/2000.
Ex.P17 Certified copy of the sale deed
dated 7/9/2004.
4. List of the documents marked for the defendants:
Ex.D1 Agreement of sale dated 21/9/1995.
Ex.D1(a) Signature of plaintiff.
Ex.D1(b) Signature of C. Jayachandra.
Ex.D1(c) Signature of C.Rajashekara.
Ex.D1(d) Signature of C.Mani.
Ex.D1(e) Signature of C.Nagaraja.
Ex.D1(f) Signature of C.Rajashekara in the back of 2nd page of Ex.D1. Ex.D1(g) Signature of C.Rajashekara in the back of 2nd page of Ex.D1.105 O.S.4091/2004
Ex.D1(h) Signature of C.Rajashekara in the back of 2nd page of Ex.D1.
Ex.D1(i) Signature of C.Rajashekara in the back of 2nd page of Ex.D1.
Ex.D1(j) Signature of C.Rajashekara in the back of 2nd page of Ex.D1.
Ex.D1(k) Signature of C.Mani in the back side of page no.3.
Ex.D1(l) Signature of C.Mani in the back side of page no.3.
Ex.D1(m) Signature of C.Mani in the back side of page no.3.
Ex.D1(n) Signature of C.Mani in the back side of page no.4 dated 9/11/1996.
Ex.D1(o) Signature of C.Rajashekara in the back side of page no.4 dated 13/11/1996.
Ex.D1(p) Signature of C.Mani in the back side of page no.4 dated 2/12/1996.
Ex.D1(q) Signature of C.Jayachandra in the back page of page no.5 of Ex.D1 dated 23/11/1996. Ex.D1(r) Signature of C.Mani in Ex.D1 dated28/12/1996.106 O.S.4091/2004
Ex.D1(s) The third signature in Ex.D1 dated 6/1/1997 of C.Rajashekara.
Ex.D1(t) 3 Signatures of C.Mani dated Ex.D1(u) 18/1/1997, 20/1/1997 and Ex.D1(v) 8/7/1997.
Ex.D1(w) Signature of C.Rajashekara dated 20/1/1997.
Ex.D1(x) 3 Signatures of C.Mani dated Ex.D1(y) 16/4/1997, 6/5/1997 and Ex.D1(z) 16/2/1999.
Ex.D2 Receipt dated 17/10/1977 for having received Rs.80,000/- by plaintiff.
Ex.D2(a) Signature of C.Nagaraja Ex.D2(b) Signature of the C.Mani.
Ex.D3 Receipt for having paid Rs.50,000/- to plaintiff.
Ex.D4 Certified copy of the sale deed dated 10/6/1999.
Ex.D5 Various certified copy of the sale to deeds executed by plaintiff and Ex.D20 his brothers in favour of various vendors.
Ex.D21 Certified copy of the General 107 O.S.4091/2004 Power of Attorney executed by one Sri Mani in favour of defendant no.8.
Ex.D22 Certified copy of the affidavit of Sri Mani.
Ex.D23 Certified copy of General Power of Attorney executed by C. Jayachandra in favour of C.Venugopal.
Ex.D24 Certified copy of affidavit annexed with Ex.D23.
Ex.D25 Certified copy of General Power of Attorney executed by C. Rajashekar in favour of defendant no.8.
Ex.D26 Certified copy of affidavit annexed with Ex.D25.
Ex.D27 Registered sale deed dated 31/3/1972.
Ex.D28 Another registered sale deed dated 20/7/1974.
Ex.D29 Certified copy of the General Power of Attorney executed by C.Mani in favour of defendant no.8.
Ex.D30 Certified copies of General Power and of Attorney executed by 108 O.S.4091/2004 Ex.D31 Jayachandra in favour of defendant no.7; and by Rajashekar in favour of defendant no.8.
Ex.D32 Affidavits annexed with Ex.D29, to Ex.D30, Ex.D21.
Ex.D34 Ex.D35 Certified copy of sale deed dated 29/10/1997.
Ex.D36 Certified copy of sale deeds dated 9/4/2001.
Ex.D37 Certified copies of encumbrance and certificates.
Ex.D38 Ex.D39 to Certified copies of Photographs. Ex.D44 Ex.D43 Certified copy of the tax demand register.
Ex.D44 Certified copy of the Judgment and and Decree passed in Ex.D45 O.S.8147/2004.
Ex.D46 Certified copy of the 'B' report filed by Subramanyapura Police.
Ex.D47 Original registered sale deed dated 9/4/2001.109 O.S.4091/2004
Ex.D48 Original rectification deed.
Ex.D49 B Khata issued by B.B.M.P Ex.D50 Receipt for having paid the khata fees.
Ex.D51 Tax demand register extract for the year 2002-03 issued by Kothanur Grampanchayath.
Ex.D52 Nil encumbrance certificate.
Ex.D53 Coy of the self assessment register extract for 2004-05 to 2006-07.
Ex.D53
to Challans.
Ex.D58
Ex.D59
to 6 tax paid receipts.
Ex.D64
Ex.D65 Original Sale deed dated
23/10/1999.
Ex.D66 Demand Register extract.
Ex.D67 3 self assessment tax paid to receipts. Ex.D69
Ex.D70 Acknowledgement.110 O.S.4091/2004
Ex.D71 Property register extract.
Ex.D72 Form No.15 issued by Sub -
Registrar.
Ex.D73 Electricity demand bills with and receipts. Ex.D74
Ex.D75 Certified copy of the order of the Tahasildar.
Ex.D76 Certified copy of another letter dated 10/5/2004.
Ex.D77 Certified copy of order sheet in O.S.4706/97.
Ex.D78 Certified copy of IA in O.S.4706/97.
Ex.D79 Certified copy of plaint in O.S.4706/97.
Ex.D80 Certified copy of Valuation slip.
Ex.D81 Certified copy of the PCR No.6/08.
Ex.D82 Certified copy of petition in Spl.C.C.No.26/09.
Ex.D83 Certified copy of FIR Ex.D84 Certified copy of charge sheet 111 O.S.4091/2004 Ex.D85 Certified copy of the order passed in Crl.A.No.2294/09.
Ex.D86 Certified copy of Judgment passed in O.S.8147/04.
Ex.D87 RTC extracts pertaining to Sy.No.11.
Ex.D88 Copy of the plaint, order sheet to and written statement in Ex.D90 O.S.9058/14.
Ex.D91 Special power of attorney Ex.D92 Certified copy of sale deed dated 14/7/2000.
Ex.D93 Certified copy of Form No.9.
Ex.D94 Certified copy of Form No.10.
Ex.D95 Certified copy of sale deed dated 7/9/2004.
Ex.D96 Certified copy of katha certificate issued by CMC.
Ex.D97 Certified copy of B Khata extract issued by BBMP.
Ex.D98 Certified copy of mortgage deed dated 23/10/2008.
Ex.D99 Certified copy of discharge of mortgage deed .112 O.S.4091/2004
Ex.D100 Certified copy of sale deed dated 2/1/2014.
Ex.D101 Certified copy of B register extract.
Ex.D102 Certified copies of tax paid to receipts and challans. Ex.D112 Ex.D113 Certified copy of encumbrance to certificates.
Ex.D115 Ex.D116 Certified copy of FIR.
Ex.D117 Certified copy of power sanctioned letter issued by BESCOM.
Ex.D118 Certified copy of sale deed dated 2/1/2014.
Ex.D119 Certified copy of sale deed dated 14/7/2000.
Ex.D120 Certified copy of sale deed dated 3/2/2003.
Ex.D121 and Electricity demand bills. Ex.D122 Ex.D123 Photographs (18).113 O.S.4091/2004
Ex.D124 CD. Ex.D125 Xerox copy of General power of
attorney dated 4/2/1999.
Ex.D125(a) Signature of Nagaraju.
Ex.D125(b) Signature of DW.8.
Ex.D126 General Power of Attorney dated 27/10/1997.
Ex.D126(a) Signature of C. Jayachandra Ex.D126(b) Signature of C.Rajashekara.
Ex.D126(c) Signature of C. Mani Ex.D126(d) Signature of C. Nagaraja.
Ex.D126(e) Signature of witness Shayamanna.
Ex.D126(f) The signature of C.Venugopal.
Ex.D126(g) Signature of C.Nagaraja who is also called as Nagappa.
Ex.D127 Original sale deed dated 26/3/2003.
Ex.D128 Original Tax demand register extract pertaining to the year 1997-98.
Ex.D129 Receipt dated 19/6/2003.114 O.S.4091/2004
Ex.D130 Original tax demand register extract pertaining to the year 2003-04.
Ex.D131 Sanction letter for construction of the house dated 19/6/2003 issued by the Village Panchayat.
Ex.D132 Tax invoice.
Ex.D133 to Electricity paid bills. Ex.D135 Ex.D136 Sanction letter issued by the BESCOM dated 24/12/2008.
Ex.D137 Permission letter dated 19/6/2003 issued by the Village Panchayath, Kothanur.
Ex.D138 to Encumbrance certificates. Ex.D140 Ex.D141 Application filed by the witness for supply of water.
Ex.D142 Challan dated 3/10/2012.
Ex.D143 Sanction letter.
Ex.D144
to Water bills
Ex.D146
115 O.S.4091/2004
Ex.D147 Challan dated 26/3/2004.
Ex.D148 Extract of tax register.
Ex.D149 to Electricity demand bills.
Ex.D152 Ex.D153 to Tax paid receipts Ex.D161 Ex.D162 to Electricity paid receipt Ex.D163
Ex.D164 Acknowledgement issued by the Revenue Inspector.
Ex.D165 Tax paid receipt.
Ex.D166 Acknowledgement issued by the BBMP.
Ex.D167 to Challan for payment of tax. Ex.D169 Ex.D170 Application for payment of tax.
Ex.D171 Receipt dated 12/11/2008.
Ex.D172 Application for payment of tax along with receipt.116 O.S.4091/2004
Ex.D173 Application for payment of tax.
Ex.D174
to RTC extracts.
Ex.D176
Ex.D177
to Photographs
Ex.D189
Ex.D190 CD
Ex.D191 Original sale deed dated
5/4/2003.
Ex.D192 Permission letter issued by the Village Panchayath for the construction of the house dated 7/7/2003.
Ex.D193 Original tax demand extract register for the year 2003-04.
Ex.D194 Property register extract.
Ex.D195 Receipt issued by the BBMP.
Ex.D196 Sanction letter issued by the Karnataka Electricity Board dated 8/7/2003.
Ex.D197 and Encumbrance certificates. Ex.D198 117 O.S.4091/2004 Ex.D199 to Tax paid reciepts.
Ex.D207 Ex.D208 Receipt issued by the Village Panchayath dated 19/6/2003.
Ex.D209 Acknowledgement issued by the BBMP dated 6/6/2014.
Ex.D210 Acknowledgement issued by the BBMP.
Ex.D211 Acknowledgement issued by the BBMP dated 6/6/2014.
Ex.D212 Acknowledgement issued by the BBMP dated 6/6/2014.
Ex.D213 Acknowledgement issued by the BBMP dated 6/6/2014.
Ex.D214 Acknowledgement issued by the BBMP dated 6/6/2014.
Ex.D215 to Photographs Ex.D222 Ex.D223 CD
Ex.D224 Notarized copy of the PAN card.
Ex.D225 Notarized copy of Aadhar Card.118 O.S.4091/2004
5. The documents marked on behalf of the Court:
Ex.C1 to Photographs.
Ex.C4 [PRASHANTHI.G] XXVII Additional City Civil Judge.
BANGALORE.
............Judgment pronounced in the Open Court....
(Vide separate detailed judgment) The suit of plaintiff is hereby dismissed with cost of Rs.5,000/-.
Draw decree accordingly.
[PRASHANTHI.G] XXVII Additional City Civil Judge.
BANGALORE.
CT0028_O.S._4091_2004_Judgment_.doc .