Bangalore District Court
Sri.K.S.Brijmohan vs Sri.B.G.Kotrappa on 17 July, 2018
IN THE COURT OF THE XLII ADDL., CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY (CCH.NO.43).
PRESENT: Sri.P.SRINIVASA,
B.A.L., LL.M.,
XLII ADDL., CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.
Dated this the 17th day of July, 2018.
O.S.No.9541/2015
Plaintiff:- Sri.K.S.Brijmohan,
S/o.Sri.K.L.Swamy,
Aged about 38 years,
R/at No.9, Sheshadri Road,
Bangalore - 560 009.
(Sri.K.Aswathanarayana, Adv.)
v.
Defendants:- 1. Sri.B.G.Kotrappa,
S/o.late B.Mudukappa,
Aged about 89 years,
Advocate & Ex-MLA,
(Kartha & Manager of HUF)
Since deceased by his LRs
Defendants 3 to 6.
2. Smt.D.S.Gowramma,
W/o.Sri.B.G.Kotrappa,
Aged about 80 years,
Since deceased by her LRs
Defendants 3 to 6.
3. Sri.B.G.Shiva Shankar,
S/o.Sri.B.G.Kotrappa,
Aged about 58 years,
4. Sri.B.G.Mohan Kumar,
S/o.Sri.B.G.Kotrappa,
Aged about 54 years,
Judgement
2 O.S.No.9541/2015
5. Sri.B.G.Prakash,
S/o.Sri.B.G.Kotrappa,
Aged about 50 years,
6. Sri.B.G.Anand,
S/o.Sri.B.G.Kotrappa,
Aged about 43 years,
Nos.2 to 6 represented by their
GPA Holder Sri.B.G.Kotrappa,
S/o.late B.Mudukappa,
Aged about 89 years,
Nos. 1 to 6 are R/at No.444/5,
7th Cross, 8th Main, P.J.Extension,
Davanagere-2.
7. Sri.T.S.Venkatesh Babu,
S/o.Sri.T.K.Srinivasa Murthy,
Aged about 54 years,
8. Sri.T.Vittal Babu,
S/o.Sri.T.K.Srinivasa Murthy,
Aged about 50 years,
9. Sri.T.S.Amarnath,
S/o.Sri.T.K.Srinivasa Murthy,
Aged about 48 years,
Nos.7 to 9 are R/at No.804,
36th "A" Cross, 22nd Main,
4th "T" Block, Jayanagar,
Bengaluru- 560 041.
(D1, D3 to D6 by Sri H.B.Rudresh, Adv.
D2 - Dismissed.
D7 to D9 by Sri.V.F.Kumbar.)
Date of institution of the suit : 23.11.2015
Nature of the suit : Declaration, Possession &
Injunction
Date of commencement of : 27.07.2016
Recording of the evidence
Judgement
3 O.S.No.9541/2015
Date on which the Judgment : 17.07.2018
was pronounced
Total Duration : Years Months Days
02 07 24
(P.SRINIVASA)
XLII ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
JUDGEMENT
The plaintiff has filed the above suit for declaration, possession, injunction and costs.
2. The plaintiff's case in brief as under:-
Bangalore Development Authority had allotted the suit schedule property to defendant no.1 herein. On payment of sale consideration of Rs.90,000/- by defendant no.1 to BDA, Lease cum sale agreement was executed in his favour. Defendant no.1 herein was put in possession of the suit property and Possession certificate was issued to him. The lease period was for 10 years. On account of family necessities, defendant no.1 agreed to sell the suit schedule property to One K.Ramanathan for a sale consideration of Rs.5,00,000/-. Said K.Ramanathan paid entire sale consideration of Rs.5,00,000/- to defendant no.1 herein. Defendant nos. 1 to 6 executed Agreement of Sale dated 27.03.1991 in favour of K.Ramanathan. As per said Agreement Judgement 4 O.S.No.9541/2015 of Sale, defendant no.1 agreed to obtain permission from BDA to alienate the suit property. Defendant no.1 also agreed to execute Sale Deed within 3 months from the date of grant of permission for alienation from the BDA in their favour or from the date of expiry of lease period of 10 years. In part performance of the Agreement of Sale, said K.Ramanathan was put in possession of the suit property. At the time of Agreement of Sale, defendant no.1 handed over "A" Card-Registration for Site, Remittance Challan, Application Form for road cutting in BDA Layout, Intimation Notice, Challan-cum-Receipt of Property Tax, Khatha Certificate etc., to K.Ramanathan. On 26.04.1991, defendant no.1 executed registered GPA in favour of K.Ramanathan with respect to suit schedule property authorizing K.Ramanathan to deal with the suit property. The defendant no.1 failed to obtain permission from BDA to alienate the property during the lease period. After expiry of lease period, defendant no.1 through his GPA Holder K.Ramanathan executed Sale Deed dated 24.07.2006 in favour of the plaintiff. The plaintiff was put in possession of the suit property. During 2008, the defendant nos.7 and 8 filed a suit in O.S.No.5778/2008 against the plaintiff herein for permanent injunction and at that time the plaintiff came to know that defendants after executing Agreement of Sale and GPA in favour of K.Ramanathan have executed and registered Sale Deed Judgement 5 O.S.No.9541/2015 in favour of defendant no.7. Agreement of Sale and registered GPA executed in favour of K.Ramanathan is coupled with interest in respect of the suit property and without canceling it, defendant no.1 cannot execute Sale Deed in favour of defendant no.7.
Therefore, Sale Deed executed in favour of defendant no.7 is a void document. Subsequently, as per Partition Deed dated 11.07.2007, the suit schedule property was partitioned between defendants nos.7 to 9 and suit schedule property was allotted to the share of defendant nos.8 and 9. Therefore, Partition Deed is also a void document. The plaintiff is the absolute owner of the suit schedule property. The suit filed by defendant nos.8 and 9 in O.S.No.5778/2008 against plaintiff was decreed. The plaintiff had preferred appeal in RFA.No.335/2014 before the Hon'ble High Court of Karnataka and same was disposed of with observation to institute a proper suit for recovery of possession. Hence, the plaintiff has filed the above suit.
3. In response to the suit summons, defendants 1 to 9 have appeared before the court through their counsels. No written statement is filed by defendant no.1 to 6 in the above suit. During the pendency of the suit, defendant nos.1 and 2 died, leaving behind defendant nos.3 to 6 as their legal heirs. The defendant nos.7 to 9 have filed the written statement and have admitted that suit schedule property was allotted to Judgement 6 O.S.No.9541/2015 defendant no.1 and he was put in possession of the suit property. The defendants contend that after expiry of lease period, defendant no.1 obtained Absolute Sale Deed from the BDA and later alienated the suit property in favour of defendant no.7 as per Sale Deed dated 01.06.2001. From the date of said sale deed, defendant nos.7 to 9 are in possession and enjoyment of the suit property. The defendants have denied the execution of Agreement of Sale and GPA in favour of K.Ramanathan and also denied the execution of Sale Deed by defendant no.1 through GPA holder in favour of plaintiff. Plaintiff is not a bonafide purchaser of the suit property. Plaintiff and K.Ramanathan have created the Sale Deed to grab the property. The plaintiff is not in possession of the suit property. Partition Deed entered between defendant nos.7 to 9 is valid and as per Partition Deed, defendant nos.8 and 9 are the absolute owners of the suit property. GPA executed in favour of K.Ramanathan is not for interest and Agreement of Sale executed by defendant no.1 in favour of K.Ramanathan is unenforceable under law. The suit filed by the plaintiff is barred by limitation. K.Ramanathan i.e, GPA Holder had no authority or power to execute the Sale Deed in favour of the plaintiff. There is no cause of action to file the suit. Hence, prayed that suit may be dismissed with costs.
Judgement 7 O.S.No.9541/2015
4. On the basis of above pleadings, below mentioned issues arise for consideration:-
ISSUES
1. Whether the plaintiff proves that he is owner of the suit property?
2. Whether the plaintiff proves that Sale Deed dated 01.06.2001/02.06.2001 registered as Document No.BNG(U)-KNGR/2697/2001-02, in Book No.1, CD No.63, in the office of the Sub-Registrar, Kengeri is not binding on the plaintiff?
3. Whether the plaintiff proves that Partition Deed dated 11.07.2007, registered as Document No.1286/2007-08, in Book No.1, in the office of the Sub-Registrar, Jayanagar, Bangalore is not binding on the plaintiff?
4. Whether the plaintiff is entitled for possession of the suit property?
5. Whether the plaintiff is entitled for removal of the existing structure in the suit schedule property?
6. Whether the plaintiff proves the alleged interference of the defendants 7 to 9?
7. Whether the plaintiff is entitled for the reliefs as sought for?
8. What order or decree?
Judgement 8 O.S.No.9541/2015 ADDITIONAL ISSUE
1. Whether the defendants 7 to 9 prove that suit is barred by limitation as contended in their written statement?
5. To prove the case of the plaintiff, the plaintiff examined himself as PW-1 and marked Ex.P1 to P27. The defendant no.8 examined himself as DW-1 and got marked Ex.D1 to D18.
6. Heard arguments. The learned counsel for the plaintiff has relied upon the following citations:
1. AIR 2003 Madhya Pradesh 145, in the case of M/s.Chetak Constructions Limited, Indore v. Om Prakash and others.
2. AIR 2004 SUPREME COURT 3854, in the case of Mahadeva and others v. Tanabai.
3. 2016 (2) KCCR 1341, in the case of Abdulla Siddiq and another v.
U.F.M.Uday.
4. AIR 2006 SUPREME COURT 661, in the case of M/s.Tashi Delek Gaming Solutions Ltd. & Another. v. State of Karnataka & Others.
5. AIR 2010 SUPREME COURT 2132, in the case of Shanti Budhiya Vesta Patel & Others v. Nirmala Jayprakash Tiwari & Others.
Judgement 9 O.S.No.9541/2015
6. AIR 1969 SUPREME COURT 73, in the case of Seth Loon Karan Sethiya v. Ivan E. John and others.
7. AIR 1969 SUPREME COURT 313, in the case of Bharat Nidhi Ltd., v. Takhatmal (dead) by his legal representatives and another.
The learned counsel for defendant nos.7 to 9 has relied upon the following citations:
1. AIR 2008 SUPREME COURT 493, in the case of A.Lewis & Another v. M.T.Ramamurthy & Others.
2. (2010) 6 SCC 666, in the case of Atla Sidda Reddy v. Busi Subba Reddy and others.
7. My findings on the above said issues are as follows:-
Issue No.1:- In the Negative.
Issue No.2:- In the Negative.
Issue No.3:- In the Negative.
Issue No.4:- In the Negative.
Issue No.5:- In the Negative.
Issue No.6:- In the Negative.
Issue No.7:- In the Negative.
Addl. Issue No.1:- In the Affirmative.
Issue No.8:- As per final order.
for the following:-
Judgement
10 O.S.No.9541/2015
REASONS
8. Issue Nos.1 to 7:- These issues are taken up together for consideration to avoid repetition of facts, evidence and convenience.
9. PW-1 in his evidence has stated that suit schedule property originally allotted to defendant no.1 and BDA has executed lease-cum-sale agreement in favour of defendant no.1 and also issued possession certificate in favour of defendant no.1.
In support of the same, PW-1 has produced allotment letter, possession certificate, A-card, notice, application form for road cutting, tax paid receipts and Khatha Certificate at Ex.P1, P2 and P5 to P20 before this court. The above said documents are marked without any objections. The said documents are originals hence, admissible in evidence. From the above said documents, it clearly goes to show that suit schedule property was originally allotted to defendant no.1 by BDA and lease-cum-sale agreement was executed in favour of defendant no.1 and khatha has been mutated in the name of defendant no.1 and possession was delivered to defendant no.1. It is pertinent to note that, defendant nos.7 to 9 in their written statement admit allotment of suit schedule property in favour of defendant no.1 and contend that regular Sale Deed was executed in favour of defendant no.1 after the lapse of lease period. DW-1 has produced original Sale Judgement 11 O.S.No.9541/2015 Deed executed by BDA in favour of defendant no.1 at Ex.D5. Further, DW-1 has produced Khatha Certificate standing in the name of defendant no.1 at Ex.D6. From Ex.D5 and D6, it clearly reveals that suit schedule property was allotted to defendant no.1 and after lapse of lease period regular Sale Deed is executed in favour of defendant no.1. Defendant no.1's title over the suit property is admitted by both the parties.
10. PW-1 in his evidence has stated that on account of family necessity defendant no.1 agreed to sell the suit schedule property to K.Ramanathan for consideration of Rs.5,00,000/- during the lease period. The defendant no.1 received entire sale consideration of Rs.5,00,000/- from K.Ramanathan and defendant nos.1 to 6 executed Agreement of Sale in his favour. As per said Agreement of Sale, defendant no.1 was liable to execute Sale Deed within 3 months from the date of grant of permission for alienation or from the date of expiry of lease period of 10 years. In part performance of sale agreement, K.Ramanathan was put in possession of the suit schedule property. The defendant no.1 also executed GPA in favour of K.Ramanathan in respect of suit schedule property. The defendant no.1 failed to obtain permission from BDA to alienate the suit schedule property during the lease period. After expiry of lease period, defendant no.1 through his GPA Holder executed regular Sale Deed in favour of the plaintiff Judgement 12 O.S.No.9541/2015 i.e., Ex.P21. The plaintiff was put in possession of the suit property as on the date of the Sale Deed. The plaintiff is the absolute owner of the suit schedule property. On the other hand, DW-1 in his evidence has denied plaintiff's title and possession over the suit schedule property and has stated that suit schedule property was allotted to defendant no.1 and after lapse of lease period, defendant nos.1 to 6 jointly have executed regular Sale Deed in favour of defendant no.7 for valuable consideration and possession was handed over to defendant no.7 and from the date of said Sale Deed defendant nos.7 to 9 are in possession of the suit schedule property. Further, DW-1 has stated that partition was effected among defendant nos.7 to 9 and suit schedule property was allotted to the share of defendant nos.8 and 9 and defendant nos.8 and 9 are the absolute owners of the suit schedule property.
11. The plaintiff in support of his claim has produced Agreement of Sale dated 27.03.1991 at Ex.P3, GPA dated 27.03.1991 at Ex.P4 and plaintiff's Sale Deed dated 24.07.2006 at Ex.P21. The defendant nos.7 to 9 in support of their contentions have produced Sale Deed dated 01.06.2001 executed by defendant nos.1 to 6 in favour of defendant no.7 at Ex.D1, certified copy of Partition Deed dated 12.07.2007 at Ex.D2, Khatha Extract and tax paid receipts at Ex.D8 to D14 and Judgement 13 O.S.No.9541/2015 encumbrance certificates at Ex.D17 and D18. The above said documents are marked without any objections. The above said documents are original and certified copies hence, the above said documents are admissible in evidence. The onus is on the plaintiff to prove execution of Ex.P3 and P4 i.e., Agreement of Sale and GPA. PW-1 in his evidence has stated that defendant nos.1 to 6 have executed Agreement of Sale in favour of K.Ramanathan and defendant no.1 has executed GPA in favour of K.Ramanathan as per Ex.P3 and P4. Admittedly, the plaintiff herein is not a party to the above said documents. It is not the case of the plaintiff that Ex.P3 and P4 are executed in his presence. The plaintiff is not competent to speak about execution of Ex.P3 and P4 by defendant nos.1 to 6 herein. The plaintiff has not made any efforts to get the signatures of defendant nos.1 to 6 on Ex.P3 and P4 identified through competent witness. The plaintiff for the reasons best known to him has not examined his vendor namely, K.Ramanathan before this court to prove the execution of Ex.P3 and P4. The plaintiff has not examined the attesting witnesses before this court to prove Ex.P3 and P4. Hence, the plaintiff has failed to prove Ex.P3 and P4 before this court. Therefore, adverse inference has to be drawn against the plaintiff. The Agreement of Sale is executed on 27.03.1991. As per the terms and conditions of the Agreement of Sale, Sale Deed Judgement 14 O.S.No.9541/2015 has to be executed and registered by defendant no.1 within 3 months from the date of grant of permission for alienation by the Bangalore Development Authority or from the date of expiry of such prohibition or from the date of lifting of the said prohibition. As per plaintiff's case, defendant no.1 failed to obtain permission from BDA for alienation. Admittedly, lease period is 10 years from 12.07.1990 as per Ex.P2. Therefore, K.Ramanathan ought to have called upon defendant no.1 to execute the regular Sale Deed after lapse of lease period. It is not the case of the plaintiff that after lapse of lease period, K.Ramanathan called upon defendant no.1 to execute the regular Sale Deed as contemplated under Agreement of Sale. Admittedly, plaintiff or K.Ramanathan have not filed any suit for specific performance of contract based on the said Agreement of Sale. The Agreement of Sale produced by the plaintiff is time barred and not helpful to the plaintiff.
12. PW-1 in his evidence has stated that GPA was coupled with interest and said GPA cannot be cancelled without issuing notice to K.Ramanathan. Further, stated that defendant no.1 through his GPA Holder i.e., K.Ramanathan has executed Sale Deed i.e., Ex.P21 in favour of plaintiff herein. Based on the Sale Deed i.e., Ex.P21, the plaintiff is claiming his title over the suit property. The plaintiff has contended that GPA is coupled with interest therefore, it cannot be cancelled without giving notice to Judgement 15 O.S.No.9541/2015 K.Ramanathan. Ex.P.4 i.e., GPA does not contain any recital to the effect that GPA is irrevocable. Therefore, GPA executed by defendant no.1 in favour of K.Ramanathan is not coupled with interest. Therefore, contention of the plaintiff that GPA is coupled with interest cannot be accepted. The question for consideration is, whether K.Ramanathan had authority to represent defendant no.1 and execute Sale Deed in favour of plaintiff. Advocate for the defendants argued that on 01.06.2001 itself defendant nos. 1 to 6 herein had alienated the suit schedule property in favour of defendant no.7 herein and executed registered Sale Deed i.e., Ex.D1 in favour of defendant no.7. Therefore, K.Ramanathan had no authority to execute Sale Deed in favour of the plaintiff in the year 2006. Further, argued that the Sale Deed executed by K.Ramanathan in favour of the plaintiff doesn't confer any title to the plaintiff herein. It is pertinent to note that, as per Ex.D1 on 01.06.2001 defendant nos.1 to 6 have sold the suit property and executed and registered the Sale Deed in favour of defendant no.7. In the year 2001 itself, defendant no.1 to 6 have transferred their ownership rights in favour of defendant no.7. From the recitals of Ex.P21, it goes to show that K.Ramanathan has executed the Sale Deed in favour of the plaintiff as GPA Holder of defendant no.1. It is not the case of the plaintiff that K.Ramanathan in his individual capacity as owner of the suit Judgement 16 O.S.No.9541/2015 schedule property has executed the Sale Deed in his favour. Admittedly, K.Ramanathan has executed Ex.P21 i.e., Sale Deed in favour of the plaintiff on 24.07.2006. Plaintiff's Sale Deed is subsequent to 7th defendant's Sale Deed. From Ex.D1, it clearly goes to show that in the year 2001 itself defendant nos.1 to 6 have alienated the property in favour of defendant no.7 and ownership rights are transferred in favour of defendant no.7 herein. Therefore, in the year 2006 K.Ramanathan had no right / powers to alienate the suit property as GPA Holder of defendant no.1 herein. Ex.P21 i.e., plaintiff's Sale Deed will not confer / transfer any ownership right in the suit property in favour of the plaintiff. In (2010) 6 SCC 666, in the case of Atla Sidda Reddy v. Busi Subba Reddy and others, wherein the Hon'ble Supreme Court has held as under:
"A Property Law - Ownership and Title - Nemo dat quod non habet - Petitioner-plaintiff buying property from DW 4 (when DW 4 had already sold it to respondents) - Plaintiff, held, did not acquire any title - Specific Relief Act, 1963 - Ss.5 and 34 - Maxims."
From the above judgment of the Hon'ble Supreme Court of India, it is clear that subsequent purchaser will not acquire any title over the suit property. Therefore, contention of the plaintiff that he Judgement 17 O.S.No.9541/2015 has acquired title over the suit schedule property under Ex.P21 cannot be accepted.
13. Advocate for defendant nos.7 to 9 argued that in the year 2001 defendant no.1 has alienated the suit property to defendant no.7 and said alienation is reflected in the encumbrance certificates. Further argued that plaintiff knowing fully well of said alienation and in collusion with K.Ramanathan has created the sale deed in order to grab the property. It is pertinent to note that, encumbrance certificates produced by DW-1 at Ex.D17 and D18 clearly show alienation made by defendant no.1 to 6 in favour of defendant no.7. PW.1 in his evidence has stated that he can't remember which encumbrance certificate he had verified at the time of purchasing the property. From the above evidence it can be inferred that plaintiff was aware of the entries in the encumbrance certificates. Therefore, contention of the plaintiff that he is a bonafide purchaser of the property cannot be accepted.
14. DW.1 has produced original sale deed dated:
01.06.2001 at Ex.D.1. From the recitals of Ex.D.1 it clearly goes to show that D.7 has purchased the suit property from the defendant Nos.1 to 6. As per Ex.D.1 D.7 has acquired title over the suit property. DW-1 has produced certified copy of Partition Judgement 18 O.S.No.9541/2015 Deed at Ex.D2. From Ex.D2, it clearly goes to show that defendant nos.7 to 9 and their family members have partitioned their properties and suit schedule property is allotted to the share of defendant nos.8 and 9. As per Ex.D2, defendant nos.8 and 9 are the absolute owners of the suit schedule property.
15. PW-1 in his evidence has stated that as per Agreement of Sale, K.Ramanathan was put in possession of the suit schedule property and after execution of the sale deed i.e., Ex.P.21 plaintiff was put in possession of the suit schedule property. It is pertinent to note that plaintiff is seeking relief of possession in the above suit. Therefore, contention of the plaintiff that he is in possession of the suit property cannot be accepted. Moreover, as per decree passed in O.S.No.5778/2008, it clearly goes to show that defendant nos.8 and 9 are in possession of the suit schedule property. DW-1 has also produced license and building plan before this court at Ex.D15 and D16. From the said documents, it clearly goes to show that defendant nos.8 and 9 have constructed building over the suit schedule property and they are in possession of the suit property. Hence, contention of the plaintiff that K.Ramanathan was in possession of the suit schedule property and after execution of Sale Deed the plaintiff was in possession of the suit schedule property falls to ground.
Judgement 19 O.S.No.9541/2015
16. The citations relied upon by the learned counsel for the plaintiff reported in:-
1. AIR 2003 Madhya Pradesh 145, in the case of M/s.Chetak Constructions Limited, Indore v. Om Prakash and others.
2. AIR 2004 SUPREME COURT 3854, in the case of Mahadeva and others v. Tanabai.
3. 2016 (2) KCCR 1341, in the case of Abdulla Siddiq and another v.
U.F.M.Uday.
4. AIR 2006 SUPREME COURT 661, in the case of M/s.Tashi Delek Gaming Solutions Ltd. & Another. v. State of Karnataka & Others.
5. AIR 2010 SUPREME COURT 2132, in the case of Shanti Budhiya Vesta Patel & Others v. Nirmala Jayprakash Tiwari & Others.
6. AIR 1969 SUPREME COURT 73, in the case of Seth Loon Karan Sethiya v. Ivan E. John and others.
7. AIR 1969 SUPREME COURT 313, in the case of Bharat Nidhi Ltd., v. Takhatmal (dead) by his legal representatives and another.
and the citation relied upon by the learned counsel for defendant nos.7 to 9 reported in AIR 2008 SUPREME COURT 493, in the case of A.Lewis & Another v. M.T.Ramamurthy & Others, are Judgement 20 O.S.No.9541/2015 not applicable to the facts and circumstances of the above case. The plaintiff has failed to prove his title over the suit schedule property. Therefore plaintiff is not entitle for any relief. In the light of the above discussion, I answer Issue Nos.1 to 7 in the Negative.
17. Additional Issue No.1:- Advocate for the Defendant No.7 to 9 argued that as per article 58 of The Limitation Act 1963 the above suit is barred by limitation. Advocate for the plaintiff argued that as per article 65 of the Limitation Act suit is filed within time. The plaintiff in the above case has sought the relief of declaration that sale deed dated:01.06.2001 i.e., Ex.D.1 and partition deed dated:11.07.2007 i.e., Ex.D.2 are not binding on the plaintiff herein and also sought possession of the suit property. Plaintiff in his pleadings and evidence admits that in the year 2008 Defendant No.7 and 8 filed suit in O.S.No.5778/2008 against the plaintiff herein for permanent injunction and plaintiff came to know that Defendant No.1 has executed sale deed in favour of D.7 herein. From the plaintiff's pleadings it is clear that in the year 2008 itself plaintiff was aware of the sale deed executed in favour of defendant No.7 herein. The plaintiff is seeking declaration that sale deed is not binding and possession of the suit property. Therefore, article 58 of Limitation Act is applicable in the present case. In the year 2008 itself right Judgement 21 O.S.No.9541/2015 to sue has accrued to the plaintiff herein. As per article 58 of the Limitation Act plaintiff ought to have filed the suit within three years from 2008. The present suit is filed in the year 2015. Hence, the suit is barred by limitation. The Hon'ble High Court of Karnataka in RFA No.335/2014 has observed as follows "The appellant would be well advised to institute a proper suit for recovery of possession which she may be entitled to, if the law so permits. With that observation, the appeal stands disposed of". The Hon'ble High Court of Karnataka has clearly stated that if law permits plaintiff can file suit for recovery of possession. In the present case the plaintiff's suit is barred by limitation. Hence, contention of the plaintiff that as per Judgment passed in RFA 335/2014 plaintiff is entitle to file the suit falls to ground. In the light of the above discussion, I answer additional Issue No.1 in the affirmative.
18. Issue No.8:-
In view of my above discussion, I proceed to pass the following:
Judgement 22 O.S.No.9541/2015 ORDER Suit of the plaintiff is dismissed with costs. Draw decree accordingly. (Dictated to the Judgement Writer, typed by her, the transcript thereof corrected and then pronounced by me, in the open court, this the 17th day of July, 2018) (P.SRINIVASA) XLII Addl., City Civil & Sessions Judge, Bengaluru.
ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff's side:
PW.1 - Sri.K.S.Brijmohan
(b) Defendants' side:
DW.1 - Sri.T.S.Vittal Babu II. List of documents exhibited on behalf of:
(a) Plaintiff's side:
Ex.P1 : Allotment Letter issued by BDA
dated 07.09.1988
Ex.P2 : Possession Certificate dated 16.02.1991
Ex.P3 : Agreement of Sale dated
27.03.1991
Ex.P4 : GPA dated 27.03.1991
Ex.P5 : "A" Card issued by BDA
Ex.P6 : Notice dated 29.05.1990
Ex.P7 to 13 Application Form for Road Cutting
in BDA Layouts
Ex.P14 & 15 : 2 Challan-cum-receipt of Property
Tax
Ex.P16 : Khatha Certificate dated
22.07.1992
Judgement
23 O.S.No.9541/2015
Ex.P17 : Returned Postal Cover
Ex.P18 : Empty Returned Postal Cover
Ex.P19 : Receipt evidencing payment of
registration fee
Ex.P20 : Remittance Challan
Ex.P21 : Original Sale Deed dated
24.07.2006
Ex.P22 : Certified copy of Sale Deed
dtd:01.06.2001
Ex.P23 : Certified copy of Partition Deed
dated 11.07.2007
Ex.P24 : Certified copy of Sale Deed dated
14.11.2000
Ex.P25 : Certified copy of Judgment in
O.S.No.5777/2008
Ex.P26 : Certified copy of Decree in
O.S.No.5777/2008
Ex.P27 : Certified copy of Judgment in
RFA.No.335/2014
(b) Defendants' side:
Ex.D1 : Original Sale Deed dated
01.06.2001
Ex.D2: : Certified copy of Partition Deed
dated 11.07.2007
Ex.D3 : Certified copy of Allotment Letter
Ex.D4 : Certified copy of Possession
Certificate
Ex.D5 : Original Sale Deed dated
14.11.2000
Ex.D6 : Khatha Certificate
Ex.D7 : Original General Power of Attorney
dated 21.05.2001
Ex.D8 : Khatha Extract
Ex.D9 : Khatha Certificate
Ex.D10 : Khatha Extract
Ex.D11 : Khatha Certificate
Ex.D12 : Khatha Extract
Ex.D13 & 14 : Tax Paid Receipts
Ex.D15 : License Fee
Ex.D16 : Sanctioned Plan
Ex.D17 & 18 : Encumbrance Certificates XLII ADDL., CITY CIVIL & SESSIONS JUDGE BENGALURU.
Digitally signed by SRINIVASA DN: cn=SRINIVASA,ou=HIGH COURT OF
SRINIVASA KARNATAKA,o=GOVERNMENT
OF
KARNATAKA,st=Karnataka,c=IN Judgement
Date: 2018.07.19 15:07:10 IST