Bangalore District Court
B.N.Jaikumar vs The Bharath Co-Operative Credit on 25 July, 2018
THE COURT OF THE XXXIV ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU
Dated this the 25th day of July, 2018
Present :-
Sri.Shivanagouda, B.Com. LL.B., (Spl.)
XXXIV Addl. City Civil & Sessions Judge,
Bengaluru.
O.S. NO.2587/2010
Plaintiff :- B.N.Jaikumar
S/o Late B.Narayana Rao,
Aged about 39 years,
R/at No.181/A, 15th Main,
II block, BSK I Stage,
Bangalore-560 050.
(Sri.V.B.Shivakumar, Advocate)
V/s
Defendants :- 1. The Bharath Co-operative Credit
Society Limited, No. 1718,
9th Main, 3rd Block,
Jayanagar, Bengaluru-560 011.
2. Sri R.Sunil Kumar
S/o Late B.Rama Rao,
Aged about 42 years,
R/at No. 423/11, 19th cross,
22nd main, J.P.Nagar 5th Phase,
Bangalore-560 078.
(D1 By Sri.RSH, Advocate)
(D2 By Sri CJ, Advocate)
2 O.S.2587/2010
Date of Institution of the suit : 18/11/2009
Nature of the suit : Injunction
Date of commencement of : 7/1/2014
recording of evidence
Date on which the judgment : 25/07/2018
was pronounced
Total Duration : Year/s Month/s Days
8 8 7
JUDGMENT
1. This is a suit filed by the plaintiff against the defendant for grant of mandatory injunction directing the first defendant Bank to handover the original documents of title and realize the amount sent by way of cheque and outstanding liability of second defendant, in terms of contract of agreement to sell.
2. It has also further stated that plaintiff has filed this suit in respect of A and B schedule property and he has stated that in the plaint averments, second defendant has entered into agreement of sale on 12/2/2007 agreeing to sell the house property bearing no. 43/16 shown at A schedule of the property. As per the agreement in respect of document referred at sl.no.1 of the case file.
3. It has also further stated in the plaint averments that as per agreement to sell certain conditions were imposed upon the plaintiff to purchase the suit schedule property for Rs.26 lakhs and 3 O.S.2587/2010 to get the absolute registered sale deed in his favour. Agreement was completed in all respects.
4. It has also further stated that power of attorney was also executed conveying absolute sale deed in respect of suit schedule property as per document no.2.
5. It has also further stated by the plaintiff that one of the condition imposed is that plaintiff was required to discharge outstanding liability with the defendant no.1 bank and to pay the defendant in occupation of the premises, who paid the premium / consideration for occupying premises.
6. It has also further stated in the plaint averments that the sale deed was executed representing second defendant and P.A. holder Sri J.R.Yogananda in favour of the plaintiff and further plaintiff I s required to hand over the possession of the property and discharge the liability of the first defendant/ bank and to pay the amount to the tenants in occupation of the premises by name Ramegowda and Manjunatha as per document no.3.
7. It has also further stated in the plaint averments that the katha was transferred in his name and he has also paid the taxes and extracts were produced as per document no.4 5 and 6. 4 O.S.2587/2010
8. It has also further stated in the plaint averments that liability is outstanding from the bank to the extent of Rs.2,97,085/- and it has also further stated that plaintiff is ready to pay said amount and to get the discharge the same. And it is the obligation of the first defendant to hand over all the original documents pertaining of the property. Defendant fails to hand over the said documents. Hence, there is a cause of action to file the suit by the plaintiff.
9. It has also further stated in the plaint averments that plaintiff has got issued the notice to the defendant for returning of the original documents even after the issuance of legal notice, legal experts of the opinion and from the legal experts, it has came to the knowledge of the plaintiff to the first defendant that the documents like sale deed, power of attorney, other documents handed over in favour of the defendant are required to be returned and there is obligation on the part of the first defendant to return the original document and they are required to recover the amount and handover the documents.
10. It has also further stated in the plaint averments that plaintiff has issued the legal notice two months prior to the institution of the suit to the Co-operative society under Section 125 5 O.S.2587/2010 of Karnataka Co-operative Societies Act and for withholding of the document of the plaintiff in respect of entitlement of the property and they were taken into consideration. Document are being handed over.
11. It has also further stated in the plaint averments that original documents of title which are produced before the court to establish that co-operative society is putting forth claim on representation of the second defendant.
12. It has also further stated by the plaintiff that documents of title are in the custody of first defendant/ bank as stated in the Schedule B and there is a mortgage deed and mortgage deed evidently establishes as to the documents that are available. Therefore, the plaintiff prays for the grant of injunction order, on the same cause of action directing the defendant for passing a decree for mandatory injunction to the first defendant to handover the original documents of title and realize the amounts sent by way of cheque as outstanding liability in terms of the agreement of contract of the second defendant and with costs.
13. In pursuance of the summons, first defendant appeared through the advocate and he has filed written statement and denied entire averments of the plaint as false and baseless and 6 O.S.2587/2010 further he has contended that there is outstanding liability with the first defendant bank and they have received the legal notice on 30/8/2009 and replied the same on 30/11/2009 and further it has also contended that power of attorney executed by T.R.Yoganand has forged the signature and further not to release the original documents deposited with the defendants society in favour of Mr. T.R. Yogananda or to a third party since the matter is pending before the court, and it has also further stated by the defendant no.1 in the written statement stating that a mortgage was executed by second defendant on 6/10/2006 in favour of first defendant for mortgage loan of Rs.3,50,000/-. Interest at 12.% per annum and 110 installments loan is repayable, and it has also further stated that the plaintiff's contention is not sustainable in the eye of law. Second defendant has executed alleged GPA, alleged agreement of sale and also absolute sale deed and copy of the mortgage dated 6/10/2006 the document no.3. It has also further stated by the defendants, the second defendant has lodged complaint before J.P. Nagar police station against plaintiff and two others in Crime no.580/2009 under Section 468, 471, 420 of IPC r/w Section 34 of IPC and further it has also stated in the written statement admitting that plaintiffs have filed another suit O.S.6432/2009 7 O.S.2587/2010 against second defendant and two others which is pending before CCH No.40 and it has also further stated that plaintiffs knowingfully well filed the suit as the suit schedule property has been mortgaged to first defendant society in the above suit with the intention to obtain decree in his favour falsely contending that factual aspects of the suits were involved.
14. It has also further stated in the written statement that the mortgage by deposit of title deeds was there as per the approved law first defendant society it is open to have transaction either in the capacity or any other persons who are not approved members of the society and second defendant has also urged the first defendant society time and again requested to have transaction with the plaintiff or Sri T.R.Yogananda the alleged GPA holder. The agreement of sale and absolute sale deed referred above are disputed in one or the other way.
15. It has also further stated by the first defendant stating that if the plaintiff proves that alleged GPA, Agreement of sale, absolute sale deed are executed legally by the second defendant and on consideration of merits of the case if the court directs to the first defendant society to discharge the mortgage in favour of the plaintiff, the first defendant society will discharge the society only 8 O.S.2587/2010 after realization of the outstanding loan due as on that date with interest and other charges.
16. It is also further stated first defendant prays to dismiss the suit of the plaintiff with costs.
17. The second defendant has appeared and filed written statement and he has denied the entire averments of the plaint as false, baseless and further it has also contended in the written statement that there is a denial of agreement of sell dated 12/12/2007 and also entering the name of the plaintiff in respect of suit schedule property and also purchase of the property by the plaintiff by paying sale consideration of Rs.26 l akhs and getting absolute sale deed in his favour and completion of agreement etc., are all false and denied and called upon the plaintiff to prove the same with strict proof.
18. It has also further stated by the defendant no.2 that by denying that one of the terms and conditions was imposed the plaintiff is required to discharge the outstanding liability with the first defendant and to pay the tenants in occupation of the premises who have paid the premium.
19. It has also further stated by the second defendant that there was an undertaking by the second defendant for discharge of 9 O.S.2587/2010 the liabilities and he has taken into consideration the purchase of the property and sale deed was executed representing the defendant no.2 by his POA holder and agreement and it has also further stated by the second defendant all other averments with regard to the handing over of possession of the property for discharge of the loan to the defendant bank and other averments are specifically denied in respect of katha transferred etc., and they are put to strict proof of the same and it has also further denied by the second defendant that there is outstanding loan liability to the extent of Rs.2,97,085 and plaintiff was prepared to pay the same amount to get the same discharged and is entitle to get the original document.
20. It has also further stated that there was issuance of legal notice for return of original documents seeking opinion of the experts by the defendant no.1 as stated by the plaintiff are denied and further the second defendant has submitted that original documents of title are with the first defendant and they are required to return the amount and hand over the documents is hereby specifically denied as false and plaintiff called upon to prove the same with strict proof.
10 O.S.2587/2010
21. It has also further denied that plaintiff has issued the legal notice to the first defendant under Section 125 of Karnataka co-operative societies Act calling upon the first defendant for return of the original documents and there was correspondence in that respect and further it has also specifically denied that suit schedule property was mortgaged with the first defendant and the documents that are available and they are necessary to be handed over to the plaintiff is false as per their demand notice.
22. It has further stated by the second defendant that there is no cause of action to file the suit. The cause of action is imaginary and baseless etc.,
23. Second defendant has specifically submitted that plaintiff having common intention to cheat the defendant no.2 on 12/12/2007 forged and fabricated, concocted the GPA as the same has been executed in respect of old sy.no. 43/16 and new no. 143 situated at 9th cross, Sarakki village, J.P.Nagar, Bengaluru. One Yogananda and plaintiff colluded each other and forged GPA and executed sale deed in favour of the plaintiff and and based on the said GPA, Yogananda executed the sale deed in favour of the plaintiff and thereby cheated the second defendant. 11 O.S.2587/2010
24. It has also further stated by the second defendant that his elder brother Ashok Kumar and other brothers have kidnapped the elder brother of the defendant no.2 to extract money from his brother Yogananda and defendant no.2 lodged a complaint before Subramanyapura P.S. Bengaluru. Police have registered the case against T.R.Yogananda and others and in Crime No. 503/2009 for the offences punishable under Section 504, 506 of IPC.
25. Defendant No.2 has denied the signatures of Yogananda and T.R.Devaraj etc., and further denied the signatures on the GPA, sale deed, sale agreement and submitted that which are taken forcibly and the property of the second defendant is mortaged with the Bank and question of getting registered the sale deed does not arise at all and Yogananda and his brothers have committed the offence cheating fraud and unrepresentative original GPA not produced in the evidence
26. It is also further also denied by the second defendant that the second defendant who has availed the loan from the Bharath Credit Co-operative society and defendant n o.2 paying the installments regularly and criminal case the police have thoroughly investigated. Without recording the statement of the witnesses have submitted a B report and causing irreparable loss and hardship 12 O.S.2587/2010 injury and injustice to the defendant no.2 before V ACMM, Bengaluru.
27. It is also further stated by the second defendant that the defendant and T.R.Devaraj and his brothers have created GPA one as if executed by defendant no.2 in favour of T.R.Devaraj and both stamps are different date and number bears the stamp is same along with sale agreement and it has further stated by the second defendant that signature on the document belongs to the second defendant as not at all affix the signature on the documents. The said signatures are absolutely forged by T.R.Yogananda and his brothers. Hence, second defendant specifically denies the averments as made out in the plaint and he prays for dismissing the suit.
28. Recasted Issues are framed for determination of the suit.
1. Whether the plaintiff proves that he is entitled to Mandatory injunction as sought for?
2. Whether plaintiff proves that second defendant entered into an agreement to sell on 12/12/2007 in respect of the suit schedule property?
13 O.S.2587/2010
3. What order or decree?
29. Plaintiff in order to prove his case examined the witness as PWs. 1 and 2 and got marked the documents Ex.P1 to Ex.P19 and closed the side of the evidence and on side the defendants, DWS. 1 and 2 were examined and got marked the documents Ex.D1 and Ex.D24 and closed the side of the defendants.
30. Heard arguments of both sides.
31. My answer to the above issues are as follows :-
ISSUE NO.1 :- In the negative,
ISSUE NO.2 :- In the negative,
ISSUE NO.3 :- As per final order
for the following
REASONS
32. ISSUE NO.1 :- The plaintiff filed this suit against
defendants No.1 and 2 for the grant of mandatory injunction directing the 1st defendant to hand over the original documents of title and realize the amount sent by way of cheque and outstanding liability of the second defendant in terms of the contract of agreement to sell and other reliefs.
14 O.S.2587/2010
33. In support of the case of the plaintiff, plaintiff has sworn to an affidavit in lieu of examination-in-chief and got examined as P.w.1. In the affidavit he has reiterated the averments of the plaint. In the further examination-in-chief he has deposed in his evidence that one Sri.J.R.Yogananda was the absolute owner of the schedule property and he purchased the suit schedule property on 6/2/2009 and the said person was the G.P.A. and it is also further stated that the suit schedule property was mortgaged in favour of the first defendant's society. He do not know original owner Sri.Sunil Kumar. In respect of the suit schedule property to show that he is in possession and enjoyment of the suit schedule property there is no evidence before the court. Further more the only document available before the court is certified copy of the sale deed Ex.P.1 which is the document marked through evidence of P.W.1. he admits that the suit schedule property was sold in favour of Sri.R.Sunil Kumar, the second defendant. The said sale deed executed on 23/3/2004 by one Sri.M.Nagachari for a total consideration of Rs.1,66,000/- and P.W.1 has produced the second document Khatha certificate in respect of suit schedule property as per Ex.P.2. The said document also clearly reveals that the name of second defendant of this present case. Ex.P.3 is the katha extract 15 O.S.2587/2010 which also clearly reveals the name of second defendant Sri.Sunil Kumar. Ex.P.4 is the khatha certificate issued by Bruhat Bengaluru Mahanagarapalike, Ex.P.5 is the khatha extract, Ex.P.6 to Ex.P.8 are the encumbrance certificates, Ex.P.9 is the certified copy of sale deed dated 6/2/2009 which clearly reveals that Sri.Sunil Kumar defendant No.2 has not executed G.P.A. in favour of Sri.T.R.Yogananda in favour of Sri.B.N.Jai Kumar, who is the plaintiff in the present suit. Ex.P.10 is the certified copy of reply letter issued by BBMP. Ex.P.11 is the certified copy of khatha certificate, Ex.P.12 is the certified copy of khatha extract, Ex.P.13 is the certified copy of endorsement issued by BESCOM dated 24/7/2009, Ex.P.14 is the notice issued by defendant No.1 to Sri.T.R.Yogananda. Ex.P.15 is the certified copy of the cheque for an amount of Rs.2,97,085/-. Ex.P.16 is the certified copy of tax paid receipt. Ex.P.17 is the certified copy of order sheet in Cr.No.580/2009. Ex.P.18 is the certified copy of F.I.R. Ex.P.19 is the certified copy in Crime No. 580/2009.
34. By perusal of these documents it is clear that the second defendant has purchased the property from one Sri.Nagachari on 23/2/2004. Subsequently his name is appearing 16 O.S.2587/2010 in the original documents and plaintiff's contention is that he has purchased the property from one Sri.Jayakumar. To prove the said contention there is no sufficient evidence before the court for the grant of injunction order. The Sunilkumar has not admitted any execution of the absolute sale deed etc., in favour of Sri.Jayakumar. The title in respect of suit schedule property even if it is disputed between the plaintiff and second defendant but to construct the house, loans are raised by the second defendant. The second defendant only disputed the title deeds in respect of suit schedule property with the first defendant bank and only on the basis of mortgage of documents the first defendant has advanced loan in favour of second defendant. Now who is in possession of the suit schedule property is to be seen. No sufficient documents were produced by the plaintiff to support his contention that he is in lawful possession and enjoyment of the suit schedule property as on the date of suit. On the other hand the interference is not proved by the plaintiff beyond all reasonable doubt. In respect of execution of these documents there was a fraud committed. Accordingly F.I.R. got marked through plaintiff himself as per Ex.P.18 which reads as under :-
17 O.S.2587/2010
£ÀAvÀgÀ ¢£ÁAPÀ 13/3/2010 gÀAzÀÄ ¢ ¨sÁgÀvï PÉÆ D¥ÀgÉÃnÃªï ¸ÉƸÉÊn °. gÀªÀgÀÄ ¦ügÁåzÀÄzÁgÀgÀ C¸À®Ä ¸Éïï rÃqÀ£ÀÄß ºÁdgÀÄ ¥Àr¹zÀÄÝ CzÀgÀ°è ¦ügÁåzÀÄzÁgÀgÀ JgÀqÀÄ ºÉ¨ÉânÖ£À UÀÄgÀÄvÀÄUÀ¼À½zÀÄÝ ¨ÉgÀ¸ÀÄ ªÀÄÄzÉæ ¸ÀAUÀæºÁ®AiÀÄPÉÌ PÀ¼ÀÄ»¸À¨ÉÃPÁVgÀĪÀÅzÀjAzÀ ºÉ¨ÉânÖ£À UÀÄgÀÄvÀÄUÀ½UÉ ºÀ¸gÀÄ ±Á¬ÄAiÀÄ°è J¸ï 1 ªÀÄvÀÄÛ J¸ï 2 JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ.
¸ÀzÀj ¥ÀæPÀgÀtzÀ°è CªÀiÁ£ÀvÀÄÛ ¥Àr¹zÀÝ «ªÁ¢vÀ zÁR¯ÁwAiÀiÁzÀ ¦ügÁå¢ ²æà ¸ÀĤ¯ï PÀĪÀiÁgï gÀªÀgÀÄ DgÉÆæ' AiÉÆÃUÁ£ÀAzÀgÀªÀjUÉ ªÀiÁrPÉÆlÖAvÉ EzÀÝ C¸À®Ä f¦J ¥ÀvÀæ ºÁUÀÆ ¦ügÁåzÀÄzÁgÀjAzÀ ¸ÀAUÀ滹zÀÝ ¥sÁgÀA £ÀA.214 ºÁUÀÆ ¨ÁåAQ¤AzÀ ¸ÀAUÀ滹zÀÝ ¦ügÁåzÀÄzÁgÀgÀ ºÉ§âÉlÖ£À UÀÄgÀÄvÀÄUÀ½zÀÝ ¸Éïï rÃqï EªÀÅUÀ¼À£ÀÄß ¢£ÁAPÀ 13/3/2010 gÀAzÀÄ PÀ£ÁðlPÀ ¨ÉgÀ®Ä ªÀÄÄzÉæ ¸ÀAUÀæºÁ®AiÀÄPÉÌ PÀ¼ÀÄ»¹ CzÀgÀ°è «ªÁ¢vÀ zÁR¯ÁwAiÀÄ°è£À ºÉ¨ÉânÖ£À UÀÄgÀÄvÀÄ ¸ÀĤïï PÀĪÀiÁgï gÀªÀgÀzÉ? CxÀªÁ C®èªÉÃ? JA§ÄzÀgÀ §UÉÎ PÉÆÃgÀ¯Á¬ÄvÀÄ.
- - - - - - - - - - -
35. Therefore at this stage when the GPA document is disputed its execution by Sunil Kumar in favour of Yogananda it is denied by the second defendant in the written statement as they have not 18 O.S.2587/2010 executed such document. In this circumstances of the case considering the document as per Ex.P.9 sale deed does not arise because of the criminal case for fraud and cheating filed against the parties Sri.T.R.Devaraj, Sri.Yogananda and Sri.Jayakumar i.e., the plaintiff.
36. Therefore injunction order cannot be granted in favour of the plaintiff. He prayed the interference and also his title is defective and he has come with false case before the court. Hence specific relief of injunction cannot be granted with regard to the possession of the suit schedule property and second defendant has entered into an agreement of sale dated 12/12/2007 in respect of suit schedule property.
37. On behalf of defendant No.1, one Sri.Bettaswamy, second defendant assistant in defendant No.1 society has deposed as D.W.1. He has sworn to an affidavit in lieu of examination-in- chief. He has reiterated the written statement averments. In his further examination-in-chief he has got marked Ex.D.1 - authorization letter, Ex.D.2 copy of board resolution, certified copy of the mortgage deed dated 6/10/2006 at Ex.D.3, loan letter extract at Ex.D.4.
19 O.S.2587/2010
38. The second defendant has entered the witness box and he has deposed before the court that he has purchased the suit schedule property from one Sri.Nagachari, who in turn had purchased the same from one Sri.Kenchappa under a registered sale deed dt. 14/2/1994. Further he has deposed that he got the katha transferred in his name and he is paying property tax regularly and he has obtained a plan and license from BBMP and constructed ground floor and upstair portion. He has further deposed that he has constructed the residential building in addition to savings of himself and his wife he had availed loan of Rs.3,50,000/- from defendant No.1 bank by way of mortgage and depositing the title deeds on 6/10/2006 and he had agreed to repay the same by way of monthly installments. Further he has deposed before the court in his evidence that his wife is also earning Rs.13,800/- as a teacher and he is also drawing a monthly salary of Rs.22,800/-. Further he has deposed that there was no necessity for him to execute any GPA either by himself or his wife in favour of one Sri.Yogananda on 12/12/2007 who is unconcerned person. Further he has also deposed that he has not at all delivered any right in favour of the said GPA holder to transfer the said suit schedule property in favour of third party. If 20 O.S.2587/2010 at all he has intended to sell the said property, he could have sold the same personally. Therefore, according to him he has availed loan of Rs.3,50,000/- from defendant No.1 and he is regularly paying the loan installments and therefore the entire execution of GPA is denied by D.W.2 in his evidence. Further he has also deposed that he has constructed first floor and second floor out of their earnings and he has let out some portion of the house. According to him Yogananda and Jaikumar i.e., plaintiff are child hood friends and the residents of same locality and they are doing estate agency. To knock off the suit schedule valuable property belonging to the second defendant and created illegal documents. Hence the plaintiff has filed the suit on imaginary ground. Accordingly, Issue No.1 is answered in the negative.
39. ISSUE No.2 :- In support of his evidence before the court D.W.2 in further chief-examination has got marked certified copy of judgment and decree in O.S.6432/2009 at Ex.D.5 and Ex.D.5(a). He has got marked the certified copy of the loan passbook issued by defendant No.1 at Ex.D.6, certified copy of AADHAR card at Ex.D.7, certified copy of ADHAAR card of his wife at Ex.D.8 and that of his daughters at Ex.D9 and Ex.D.10. He has 21 O.S.2587/2010 got marked certified copy of ration card at Ex.D.11, certified copy of invitation card at Ex.D.12, certified copies of electricity bills at Ex.D.13 to Ex.D.17, certified copies of the tax paid receipts at Ex.D.18 to Ex.D.21, certified copy of water bill at Ex.D.22, certified copy of the letter towards deposit of documents with bank at Ex.D.23, certified copy of the mortgage deed at Ex.D.24.
40. Ex.D.5 is the certified copy of the judgment and decree passed in O.S.6432/2009 wherein the present plaintiff in this case has filed the suit against the second defendant and one Ramagowda and Manjegoweda for the grant of permanent injunction in respect of same suit schedule property. By the judgment of the XXXIX Addl. City Civil Judge, Bangalore by the judgment dated 7/1/2017 has dismissed the suit filed by the present plaintiff and holding that "Suit filed by the plaintiff against the defendants is hereby dismissed with cost of the defendants. Draw decree accordingly."
41. In the cross-examination the learned advocate for the plaintiff cross-examined contending that there is an outstanding loan of Rs.2,97,085/- against him out of Rs.3,50,000/-, witness 22 O.S.2587/2010 has denied the same but he has admitted the fact of availing loan of Rs.3,50,000/-. Further it is also suggested to D.W.2 that there was an agreement on 12/12/2007 and suit schedule property was sold in favour of the plaintiff. Witness has denied the same. Further it is also suggested that possession is also delivered in respect of suit schedule property, witness has denied the same. Since from the date of borrowing loan itself the said witness P.W.2 is residing in the said house. In the cross-examination it has been suggested that the G.P.A. is not valid document. Witness has denied the same contending that G.P.A. is a fraudulent and created document and it is also confronted that the G.P.A. contains the signature and the witness as per the hand writing expert opinion, witness has denied the same. Further, it is also suggested the "B" report was filed on the criminal case complaint filed by him against the Yogananda, plaintiff and others before V ACMM, Court and "B" report was issued is also denied. Further it was suggested by the counsel for the plaintiff in the cross-examination that suggestion given stating that the property document is with the defendant No.1. Witness has admitted the same and he has also given the application for handing over of the property contending that he has purchased the property. Further, it is also suggested that in the cross-examination 23 O.S.2587/2010 of what did you have filed complaint before J.P.Nagar and he has deposed that he found the signature obtained by Yogananda on the GPA is fraudulent and concocted against him, Sri.Jaikumar and also one Devaraju and he has lodged complaint and signatures were sent for the comparison for F.S.L (Foreignsic Science Laboratory) is also admitted. Further in the cross-examination it has been suggested that signature is yours as per the report of the F.S.L. According to the witness the opinion is not correct. Expert opinion is not correct and even though opinion is not set aside. It is suggested in the further cross-examination admitting that a Criminal appeal No.604/2014 has been filed challenging the acceptance of "B" report is admitted. In the cross-examination of D.W.2 by he counsel for the plaintiff it was suggested that whether he is ready to produce expert opinion who has examined as a F.S.L. expert before the court. Witness has admitted before the court that he is ready to examine the witness as YES. It is also further cross- examined that power of attorney belongs to you? Witness has denied the same signatures on document and also with regard to the execution of document and receipt of the amount of consideration at the time of sale deed either from power of attorney or from the plaintiff. D.W.2 in the cross-examination has admitted 24 O.S.2587/2010 that he has not issued any notice to the power of attorney or plaintiff, Devaraj and Yogananda.
42. Further it is also cross-examined to D.W.2 by the counsel for the plaintiff and it is suggested in the cross- examination that he has filed suit O.S.2525/2012 which is pending before the Mayohall court i.e., in respect of suit schedule property which was occupied by the tenants.
43. It is also further suggested in the cross-examination by the counsel for plaintiff to D.W.2 stating that he was not residing in the suit schedule property address as mentioned in the cause title. He has furnished false address to the defendant's society as No.419, 29th Cross, Abbaya Reddy Layout, J.P.Nagar, 5th Phase, Bengaluru. It is also further suggested in the cross-examination that suit schedule property is no way concerned to you after the execution of sale and you have no right, title and interest over the property, witness has stated he has not executed any sale deed in respect of suit schedule property and though there is no relief is claimed against him in the suit but suit is filed only against him in but only against the society the claim is there for release of 25 O.S.2587/2010 documents. To prove possession plaintiff has not produced sufficient oral and documentary evidence.
44. Original G.P.A. executed in favour of Yogananda not produced, not got marked in plaintiffs evidence. GPA sale is not proved. Now at this stage there are two sale deeds one is dated 23/2/2004 which was executed in favour of defendant No.2. Plaintiff himself has produced another sale deed Ex.P.9 dated 6/2/2009. he has denied that second defendant has not executed any GPA in favour of Yogananda and he has not authorised him to execute sale deed in favour for plaintiff of this suit. Hence the document and its contents are denied including signatures of the second defendant in the cross-examination and hence it is not necessary to discuss in respect of title deeds. Because the court is not going to grant any relief of declaration either in favour of plaintiff or in favour of defendant. Because it is a simple suit for grant of injunction against the defendant. Therefore, the Hon'ble XXXIX Addl. City Civil Judge, Bangalore has passed detailed judgment on 7/7/2017. Wherein the learned District Judge has also gave finding at page No.14 and para No.14 it is observed that :- "P.W.1 also in the cross-examination deposed that defendant No.1 has filed a suit in O.S.No.25250/2012 claiming relief of 26 O.S.2587/2010 declaration to declare that the said sale deed is not binding on him and it is still pending. So it is very clear that the sale deed of the plaintiff as per Ex.P.1 is under challenge. When such being the fact, the validity of the sale deed or its due execution cannot be decided in this case, as it is not suit for declaration of title of the plaintiff. During the course of argument the learned advocate for the 1st defendant has filed a memo stating that 1st defendant society will release the document in favour of 2nd defendant as he has cleared all the loan amount and the documents are already marked in this suit as Ex.D.4. Ex.D.4 is a khatha extract in respect of loan account No.ML00576. Therefore the court has looked into the mortgage deed as per Ex.D.3 marked in this case and the said document clearly reveals that defendant No.2 has executed mortgage deed and availed the loan of Rs.3,50,000/- as per Ex.D.24. Therefore at this stage, the court comes to conclusion that when he has discharged the loan amount as per mortgage deed, in respect of the suit schedule property as shown in para No.11 of the said document is entitle to receive back the mortgage deed. Further more, as per the registration act, the 1st defendant has to execute the deed of release of mortgage before the Sub-Registrar mentioning reference of his mortgage which was 27 O.S.2587/2010 created in favour of bank. Therefore, mere decreeing of the suit is not sufficient or a mere direction from the court to the 1st defendant for return of the document is not at all sufficient unless release deed of mortgage executed by 1st defendant in favour of 2nd defendant. Therefore, the court comes to the conclusion that whoever deposits the title deed, he is only entitled to receive back the documents and who has taken loan amount. In this case, according to evidence of D.W.1, 2nd defendant has availed loan of Rs.3,50,000/-. Hence he is entitled to receive back the said documents into his custody. Hence, for proof of possession for the grant of injunction there is no sufficient documentary evidence produced by the plaintiff. On the other hand, all the documents Ex.p.2, to Ex.P.7 are standing in the name of defendant No.2. Hence, at this stage when there is a denial in respect of execution of sale deed through GPA Sri.Yogananda and moreover in this case the plaintiff has produced the documents which are supportable to the second defendant. On the other hand he has not produced the document of original GPA which was executed by 2nd defendant in favour of Sri.T.R.Yogananda. Therefore the plaintiff has not produced sufficient evidence to prove his case beyond reasonable 28 O.S.2587/2010 doubt. So in view of fraud committed by him, he is not entitled for grant of injunction order as contended by the defendants.
45. In so far as responsibility to return the original title deeds etc., is a subject matter and adjudication of this suit. Admittedly, defendant No.2 has borrowed the loan amount and he has pledged the document as per Ex.D.3 and of the said suit The court is not going to grant any relief with regard to the declaration and it is a simple suit for grant of injunction. So, in view of the criminal case filed in between the parties against the plaintiff and in view of the findings mentioned above it is not necessary to discuss with regard to title deeds of the properties and court is not going to give any declaration.
46. To prove the possession there is no documentary evidence or oral evidence supporting the case of the plaintiff. In view of the criminal case and in view of the denial of the execution of the sale deed etc., G.P.A., title even plaintiff has not got valid documents in the eyes of law. Hence, injunction can be granted only in respect of real person who is in possession of the property and who has denied the title and filed criminal case against plaintiff. Judgment and decree is passed in O.S.6432/2009 29 O.S.2587/2010 dismissing the suit of the plaintiff which is also in respect of the same suit schedule property and the said judgment and decree is Ex.D.5 and Ex.D.5(a) which is a conclusive document. Hence, plaintiff is not entitled for grant of injunction against the defendants.
47. D.W.2 during the course of cross-examination marked Ex.D.4 - loan statement. Loan has been closed on 14/10/2016. When he has closed the loan amount and he is entitled for the return of the document which is a mortgage document. Mortgage deed is as per Ex.D.3. The said document is dated 5/10/2006 marked as per Ex.D.3 and there is mention in respect to the extent of Rs.3,50,000/- in favour of Sri.Sunil Kumar. Hence he is entitled for the return of the document who has deposited the loan amount. Hence with these reasons the plaintiff has failed to prove with regard to injunction. Accordingly, Issue No.1 is answered in the negative.
48. Second defendants advocate has argued before the court stating that 2nd defendant has borrowed loan amount. Documents are with the plaintiff. Hence, his prayer in the suit is against the first defendant for directing 1st defendant 30 O.S.2587/2010 to hand over the title documents in his favour after receipt of the loan amount sent by way of cheque in respect of liability of the 2nd defendant. In order to establish the same with regard to sending of cheque by the 2nd defendant in favour of 1st defendant there is no sufficient evidence to prove his case beyond reasonable doubt. Neither he has stated in the evidence with regard to the issuing of cheque and making of payment in advance by second defendant in favour of the first defendant which was outstanding liability of the second defendant in terms of contract of agreement to sell. Whereas D.W.2 has deposed that in his evidence he is ready to discharge the liability to the bank and further he has stated that Ex.P.15 is the certified copy of the cheque issued in favour of Bharath Co-operative society for Rs.2,97,085/- which was already marked as Ex.P.7 in another case. It is the burden of proof always on the plaintiff to prove his case beyond reasonable doubt. According to the 2nd defendant he is entitled for the title documents. In support of his contention he has referred to the Ex.D.24 which is certified copy in respect of mortgage. According to him plaintiff is entitle for return of the document. On perusal of Ex.D.24 it is clear that plaintiff has not mortgaged the said suit schedule property. But on the other hand, defendant No.2 has mortgaged 31 O.S.2587/2010 the suit schedule property for Rs.3,50,000/- as a mortgager in favour of 1st defendant. Therefore, the contention of plaintiff for return of the document in favour of plaintiff does not arise and the order of injunction cannot be granted in his favour. On the other hand the defendants document holds good as the defendant has mortgaged the property and absolute sale deed as per Ex.P.9 sale through G.P.A holder in favour of plaintiff - Jayakumar is disputed as on today. Even Ex.P.11, Ex.P.12 the katha extract even though is standing in the name of plaintiff in the BBMP but that cannot be a ground for the redumption of mortgage in his favour because he is not at all the real owner. The sale through GPA Yogananda has been disputed and the evidence of Yogananda P.W.2 also cannot be considered when the Ex.P.9, Ex.P.10 and Ex.P.11 are disputed documents and when the criminal case is going on in between the parties for the fraud committed on the defendant No.2. Therefore, at this stage the court comes to the conclusion that it is just and proper and reasonable to rely upon on the judgment of the another court as relied by advocate for 2nd defendant i.e., O.S.6432/2009. Wherein the Hon'ble XXXIX Addl. City Civil Judge on 7/1/2017 has categorically in detail and thoroughly passed an order in respect of suit for the grant of permanent injunction wherein the 32 O.S.2587/2010 Sessions Court has answered all the issues and has answered Issue No.1 to 3 in negative raised in favour of the plaintiff of that suit and at para No.13 has stated that "In the absence of GPA, it is hard to accept the case of plaintiff that there was GPA executed by defendant No.1 in favour of J.R.Yogananda or T.R.Yogananda whose name is shown in the plaint and Ex.P.1 respectively. Further, plaintiff has not examined the alleged GPA holder in this case to prove the execution of power of attorney by the 1st defendant. Therefore, the execution of the sale deed in favour of plaintiff by the alleged power of attorney holder has not been proved by the plaintiff. Ultimately the suit of the plaintiff was dismissed."
49. Now at this stage, the court on appreciation of the entire oral and documentary evidence on record, the evidence of D.W.1 - Bettaswamy, Second Division Assistant of defendant No.1 society holds good and he has specifically stated that Rs.3,50,000/- was advanced in favour of the 2nd defendant and he has mortgaged the documents of title and in support of his evidence he has produced documents Ex.D.1 and Ex.D.2. But, whereas according to his evidence, loan is taken by the second defendant Sunil Kumar by 33 O.S.2587/2010 mortgage/pledging of the documents. Hence the documents are required to be handed over in favour of the 2nd defendant only and he has availed loan of Rs.3,50,000/- and mortgage the schedule property documents.
50. Defendant No.2/D.W.2 has also deposed before the court that he was a purchaser of the suit schedule property. Originally one Nagachari was the owner of the property and he has deposited the documents title and availed a loan of Rs.3,50,000/- from first defendant. Hence, he is entitled for return of the document and he has discharged the loan amount. In the evidence of D.W.2 and evidence of D.W.1 supports to the case of the defendants rather than the plaintiff. Because plaintiff has committed fraud etc., in getting sale deed etc., So in view of the no fairness on the part of the plaintiff is not entitled for the equitable relief of injunction order. The documents as given by D.W.2 in the para No.2 of evidence of further chief examination is as follows :-
51. Those documents are appreciated for the purpose of the case of the defence in accordance with the defence taken by him. Now at this stage when the defendant No.2 has disputed the 34 O.S.2587/2010 document which was executed in favour of Jaikumar through GPA holder Yogananda, it is not a genuine document and it is a created document etc., In those circumstances the evidence of the bank manager holds good and Ex.D.3 mortgage deed and also the evidence of D.W.1 holds good and he has also further produced evidence stating that mortgage is in the name of 2nd defendant and according to katha extract maintained by Bharati Co-operative society it was standing in the name of 2nd defendant and loan was discharged already on 14/6/2006. Therefore, computer generated account of Ex.D.4 holds good. Title question does not arise in this case. Only injunction in the form of direction. Hence the said direction can be issued only on appreciation of evidence. Hence the court answers Issue No.1 and 2 in the negative.
52. ISSUE NO.3 :- For the reasons stated above, I proceed to pass the following :-
ORDER Suit of plaintiff is hereby dismissed.35 O.S.2587/2010
No order as to cost.
(Dictated to the Judgment Writer directly on computer, typed by him, revised by me and after corrections pronounced in the open court on this the 25th day of July 2018.) (SHIVANAGOUDA) XXXIV Addl. City Civil & Sessions Judge Bengaluru.
ANNEXURE
1. LIST OF WITNESSES EXAMINED ON BEHALF OF PLAINTIFF :-
P.W.1 :- B.N.Jaikumar PW.2 :- T.R.Yogananda
2. LIST OF EXHIBITS MARKED ON BEHALF OF PLAINTIFF :-
Ex.P.1 Certified copy of the sale deed dated 23/2/2004 executed by M.Nagachari in favour of defendant no.2.
Ex.P2 Khata certificate dated 23/9/2008
Ex.P3 Katha extract dated 23/9/2008
Ex.P4 Khata certificate dated 6/2/2009
Ex.P5 katha extract dated 6/2/2009
Ex.P6 to Ex.P8 Encumbrance certificates
36 O.S.2587/2010
Ex.P9 Certified copy of the sale deed dated 6/2/2009
Ex.P10 Certified copy of the katha endorsement Ex.P11 Certified copy of the khata certificate Ex.P12 Certified copy of the katha extract Ex.P13 Certified copy of the endorsement dated 24/7/2009 Ex.P14 Certified copy of the letter dated 3/7/2009 Ex.P15 Certified copy of the cheque dated 25/6/2009 Ex.P16 Certified copy of the tax paid receipt Ex.P17 Certified copy of the order sheet of J.P.Nagar P.S.Crime No. 580/09 Ex.P18 Certified copy of the 'B' report filed in J.P.Nagar P.S.Crime No. 580/09 Ex.P19 Certified copy of the order sheet of Crime No.580/09 Of J.P.Nagar Police Station.
3. LIST OF WITNESS EXAMINED ON BEHALF OF DEFENDANT :-
D.W.1 :- Sri Bettaswamy D.W.2 :- Sri R.Sunil Kumar
4. LIST OF EXHIBITS MARKED ON BEHALF OF DEFENDANT :-
Ex.D1 Authorisation letter
Ex.D2 Copy of board resolution
Ex.D3 Certified copy of the mortgage deed dated 6/10/2006
Ex.D4 Loan letter extract
37 O.S.2587/2010
Ex.D5
And Certified copy of the Judgement and Decree in
Ex.D5(a) O.S.No. 6432/2009
Ex.D6 Certified copy of the loan pass book issued by the
Bharath Co-operative Credit Society Limited Ex.D7 Certified copy of Aadhar card Ex.D8 Certified copy of Aadhar card Ex.D9 Certified copy of Aadhar card Ex.D10 Certified copy of Aadhar card Ex.D11 Certified copy of ration card Ex.D12 Certified copy of invitation card Ex.D13 to Ex.D17 Certified copy of electricity bills Ex.D18 to Ex.D21 Certified copy of tax paid receipts Ex.D22 Certified copy of water bill Ex.D23 Certified copy of the letter towards deposit of documents with bank.
Ex.D24 Certified copy of the mortgage deed
(SHIVANAGOUDA)
XXXIV Addl. City Civil & Sessions Judge
Bengaluru.
SCHEDULE-A
All that piece and parcel of the residential
property bearing House List No. 43/16, Katha No. 1142, old no. 16, situated at Sarakki Village, Utttarahalli Hobli, Bangalore South Taluk now this property comes within the limits of Bangalore Mahangara Palike, Corporation Ward No. 57, PID No. 57-251-143, New 38 O.S.2587/2010 Corporation No. 143, 9th cross, Sarakki, Bangalore, measuring East to West 36 feet and North to South 23 feet, together with Eight Squares in Ground Floor, Eight squares in First floor of RCC roofed house, Mosaic Flooring, Doors and windows area in Honne Wood and Steel make with electricity, water and sanitary facilities thereon and bounded on the :-
East by :- Channel and private property
West by :- Road
North by :- Old property No.17
South by :- Property belongs to Ramaiah
SCHEDULE -B
1) Title deeds
2) Khata certificate
3) Tax Paid Receipts
4) All other documents
(SHIVANAGOUDA)
XXXIV Addl. City Civil & Sessions Judge
Bengaluru.