Bangalore District Court
Sri.B.V.Subbaramaiah vs Gopal on 16 March, 2022
IN THE COURT OF THE IV ADDL. CITY CIVIL & SESSIONS
JUDGE AT MAYO HALL BENGALURU
(CCH-21)
Present:
Sri.D.S.Vijaya Kumar, B.Sc., LL.B.,
XXVI Addl. City Civil & Sessions Judge & C/c IV ACC & SJ.,
Bengaluru
Dated this the 16 th day of March, 2022
O.S.No.25131/2007
Plaintiff:- Sri.B.V.Subbaramaiah,
Son of B.R.Venkataramanappa,
Aged about 63 years, Residing at No.
26/1, 9th Cross Road, Cubbonpet,
Bengaluru 560 002.
[By Sri.J.S-Advocate]
vs
Defendants:- 1. Gopal,
Son of Krishnappa,
Aged about 52 years,
2. Muniraju,
Son of Krishnappa,
Aged about 36 years,
3. Manjunath,
Son of Krishnappa,
Aged about 29 years,
All are Residing at Kudlu Village,
Singasandra Post,Bengaluru 560 068.
[By Sri.MSS-Adv]
2
OS No.25131/2007
Date of Institution of suit: 17.01.2007
Nature of the Suit (Suit for
Pronote, Suit for
Declaration and Injunction Suit
Possession, Suit for
Injunction, etc.):
Date of Commencement of 04.06.2008
recording of evidence:
Date on which the
Judgment was 16.03.2022
pronounced:
Total Duration:
Years Months Days
15 01 29
(D.S.VIJAYA KUMAR)
XXVI Addl. City Civil Judge
& C/c IV ACC & SJ.,Mayo Hall,
Bengaluru.
3
OS No.25131/2007
JUDGMENT
Plaintiff has sought decree of Permanent Injunctions to restrain the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property and also to restrain the defendants from creating any fraudulent conveyance deed by suppressing the sale effected in favour of the plaintiff in respect of the suit schedule property and also for mandatory injunction directing the defendants to hand over the vacant possession of the property by dismantling and removing the compound wall put up therein by the defendants and for costs.
2. Brief facts of the case of the Plaintiff are as below:-
The Property bearing Survey Number-42 situated at Aralukunte village, Begur Hobli, Bengaluru South Taluk 4 OS No.25131/2007 measuring 1 Acre 16 guntas originally belonged to Krishnappa S/o Venkatappa who acquired the same by virtue of partition effected between himself and his brother, who in turn formed a Layout in the said land during the year 1988, Out of the layout, site no.14 which is the suit schedule property was sold to Smt.Rajamma under a Sale Agreement and Power of Attorney dtd. 14.12.1988. Plaintiff purchased the suit schedule property under a Regd. Sale Deed dated.30.03.1995. During September 1996 original owners from the side of the second wife's family put forth a claim and accordingly an agreement was entered into on 9.9.1996 in settling all the claims of them with regard to the Plaintiff and other purchasers. On 28.07.2004 Katha has been effected in the name of Plaintiff by Bommanahalli Nagara Sabha. Plaintiff have also paid taxes to the concerned authorities. Plaintiff have paid 5 OS No.25131/2007 betterment charges. That the defendants are the children of Krishnappa, who sold the suit property in favour of Plaintiff. In the layout formed by Krishnappa they have also retained some portions of the property towards the share of first wife as well as her son and second wife as well as her children and in all 17 sites were sold to different purchasers i.e. site Nos.28 to 34 retained for the first wife's family including the first defendant. Right from the date of purchase, the Plaintiff are in possession and enjoyment of their respective suit schedule properties. Though the defendants have no manner of right, title, interest and possession over any portion of the suit schedule properties, they started threatening the Plaintiff by interfering with their possession over the suit schedule property on 3.1.2007. Further, in the suits this court was pleased to issue an ad-interim order of status quo which 6 OS No.25131/2007 came to be confirmed by the High Court of Karnataka, Bengaluru. But, the defendants taking advantage of the pendency of the suit ventured to dump waste material in the layout and a complaint in that regard has been lodged before HSR Layout Police Station on 5.1.2009 and also to the local authorities who intervened and removed the blockage and also got tarred 20 feet width road. On 09.3.2011 Plaintiff reliably came to know that the defendants started construction activities in site nos. 20 to 22 apart from putting up compound wall in site nos. 17 to 21 and 23 to 28 and also put up temporary zinc sheet sheds in sites nos.5 to 16 apart from dumping scarp materials on the sites by blocking the entrance of 25 feet road apart from utilizing some portions as cow shed. Since the defendants violated the court order, plaintiff was inclined to initiate contempt proceedings before the High 7 OS No.25131/2007 Court of Karnataka, Bengaluru in which an observation was made to the Plaintiff to approach the trial court in the pending suit. Hence, a court commissioner was appointed who submitted a report in the suit. On these grounds, the Plaintiff has sought the reliefs against the defendants.
3. The Defendants 1 to 3 who are common in both the suits have filed written-statement and addl. Written statement and contested the suit.
4. Brief facts of the written-statement and Addl. Written statement of defendants in common are as under:-
Defendants admit the land in question belonged to Krishnappa, however, they denied that there was layout formed and sites were sold and suit schedule properties are in existence. It is also stated that Krishnappa and his 8 OS No.25131/2007 children have no independent right to enter into any Agreement of Sale or to execute the Power of Attorney in the name of P.Rajamma or in the name of any other persons in respect of land bearing Survey Number-42 of Aralakunte village. It is stated that as on the date of the Sale Deed there was no house constructed and even today no house is in existence. All the revenue records stand in the name of one Chinnappa @ Yallappa. When the suit schedule property is not in existence, sale deeds relied upon by the Plaintiff to prove the possession of the same will not help them in any manner. There was a litigation pending between the first defendant, their father in OS No.8415/1996 in the court of City Civil Court, Bengaluru and same was concluded by way of compromise on 27.11.2006. Thereafter their father died on 07.12.2006 and in the said compromise they have filed a sketch showing 9 OS No.25131/2007 how they have partitioned the land bearing Survey Number- 42 and other properties and they have been in possession and enjoyment of the same. Plaintiff are not in possession of the said lands or any portion of land bearing Survey Number-42. The alleged receipts obtained from the Panchayath are all created documents for the purpose of the case. As per the revenue records it has been continued as agricultural land and the same is not converted till today. The alleged Power of Attorney given to the Plaintiff and other parties in the connected suits have been cancelled by the first defendant and their father Krishnappa and they have no authority to deal with the same in any manner. The suits are not maintainable for the simple reason that as on the date of filing the suits, Plaintiff are not in possession of the suit schedule property. Hence the suit is liable to be dismissed. That the 10 OS No.25131/2007 Plaintiff have not sought for any declaratory reliefs as regards their title over the suit schedule properties. There is no cause of action for the suit. In the absence of any prayer to recover possession of the suit property, mere prayers for mandatory or permanent injunction will not survive and the same cannot be granted. On these grounds, defendants have prayed for dismissing the suit of the Plaintiff with costs.
5. In support of the plaintiff's case, plaintiff got examined himself as PW.1 and a witness as PW.2 and got marked 18 documents as Exs.P.1 to Ex.P.18. On behalf of the defendants, defendant No.1 got examined as DW.1 and got marked 44 documents as Ex.D.1 to D.44. Court commissioner has been examined as CW.1 and Ex.C.1 to C.12 got marked.
6. Heard arguments.
11
OS No.25131/2007 Learned counsel for the plaintiff has relied upon the following decisions:-
1) AIR 1969 Supreme court 73
2) 2012 SCC Online Delhi 2937
3) (2008) 4 SCC 594
4) (2019) 17 SCC 692
5) 2021 SCC Online SC 675
6) (1995) 6 SCC 50
7) (1997) 3 SCC 443
8) (1994) 2 SCC 266
9) (1996) 4 SCC 622
10)1975 SCC Online Mad. 73
11) 1985 SCC Online Cal. 146
12) 2016 SCC Online Hyd. 490
13) 2012 (3) SCALE 550 Learned counsel for the defendants has relied upon the following decisions:-
1) ILR 2014 Karnataka 4716
2) ILR 2016 Karnataka 2670 12 OS No.25131/2007
3) AIR 2008 Supreme Court 2033
4) AIR 2018 (SUPP) SC 1159
5) CA. 6989-6992/2001
6) AIR 2021 SC 4923
7) 2021(2) Karnataka L.R. 477 (SC)
8) AIR 1992 Bombay 149.
7. Following Issues and Addl Issues have been framed in the suit:-
Issues
1) Whether plaintiff proves he is in lawful possession over the suit property?
2)Whether plaintiff proves interference by the defendants?
3) Whether Plaintiff is entitled for
permanent injunction?
4) What decree or order?
Addl. Issues dtd. 15.07.2019
1) Whether the plaintiff proves that
during the pendency of the suit
13
OS No.25131/2007
defendants have illegally put up Zinc
Sheet Shed and stored scrap material in the suit property?
2) Whether the defendants prove that the suit is barred by limitation?
3) Whether the defendants prove that the court fee paid is insufficient?
4) Whether the plaintiff is entitled for mandatory injunction as prayed for?
8. For the reasons stated in the subsequent paragraphs, I answer above Issues as follows:-
ISSUE No.1 :- In the affirmative
ISSUE No.2 :- In the affirmative
ISSUE No.3 :- In the affirmative
Addl. Issue No.1 :- In the affirmative
Addl. Issue No.2 :- In the negative
14
OS No.25131/2007
Addl. Issue No.3 :- In the negative
Addl. Issue No.4 :- In the affirmative
Issue No.4 :- As per final order for
the following:-
REASONS
9 . Issu e No.1 & Addl. Issue No.1:- The suit schedule site is said to be carved out in the land bearing Survey Number- 42 situated at Arulukunte village, Begur Hobli, Bengaluru South Taluk admeasuring 1 Acre 16 guntas. Formation of the said sites in the said land is not admitted by the Defendants. However, it is an admitted fact that the land bearing Survey Number- 42 measuring 1 Acre 16 guntas belonged to the father of the defendants 1 to 3 namely Krishnappa and he had acquired the same under a Partition Deed between himself and his brothers. 15
OS No.25131/2007 Krishnappa's brother Venkatappa is said to have had purchased larger extent in Survey Number- 42 on behalf of the joint family, and in the partition, above said extent of 1 Acre 16 guntas is said to have fallen to the share of defendants' father Krishnappa. This is actually not in dispute. Plaintiff's claim is that the suit site No.14 was acquired under the Sale Agreement and General Power of Attorney executed by the defendants father Krishnappa and his family members on 14.12.1988. Actually it is claimed that Site No.14 was purchased in the name of plaintiff's wife Smt.P.Radhamma under a Sale Agreement and GPA dtd.14.12.1988 executed by Krishnappa and his family members and then on the basis of the said General Power of Attorney she has executed Regd. Sale Deed in favour of her husband, the plaintiff.
16
OS No.25131/2007
10. There are totally 13 connected suits, but in this suit evidence has been recorded separately. However, the court commissioner has filed common Report in this case and OS No.25124, 25125, 25126, 25127, 25128, 25129, 25130, 25133, 25134, 25135, 25136 and 25137 of 2007 and his evidence ha been recorded in OS No.25124/2007 and certified copy of the said Report and deposition are produced herein. On behalf of the plaintiff, he has examined himself as PW.1 and his son Ramakumar has been examined as PW.2. Plaintiff has got marked Ex.P.1 to 18 on his behalf. Documents marked for the plaintiff is tabulated for the convenience as below:-
Sale Transaction pertaining to Site No.14 in OS No.25131/2007 Date Executed by In favour of Nate of Exhibit document 14.12.1988 Krishnappa and P.Radhamma Sale Ex.P.2 family Agreement 14.12.1988 Krishnappa and P.Radhamma GPA Ex.P.3 17 OS No.25131/2007 family 30.03.1995 Krisnappa & Family B.V.Subbaramaiah Sale Deed Ex.P.4 through GPA Holder Radhamma 24.10.1996 Krishnappa & B.V.Subbaramaiah Affidavit dtd. Ex.P.5 Family (Except 24.10.1996 defendant No.1) 28.10.1996 Krishnappa Plaintiff and other Agreement Ex.P.8 sites owners dtd. 9.9.1996 Revenue and other allied documents relied on by the plaintiff pertaining to site No.14 in OS No.25131/2007 Particulars of document Exhibit Assessment Register extract issued by the Bommanahalli : Ex.P.7 Nagarasabha, Bengaluru Application submitted by the plaintiff for the payment of the taxes : Ex.P.11 to under the Self Assessment Scheme along with the Tax paid receipts 16 for the years 2002-03, 2003-04, 2004-05, 2005-06, 2006-07 and 2007-08 Encumbrance Certificate fro 1.4.1989 to 24.08.2004 : Ex.P.9-10
11. Defendants claim that their father Krishnappa and themselves have not executed any Sale Agreement and General Power of Attorney, but in the same breath they further claim that the Power of Attorney given to the plaintiff and others parties mentioned above have been canceled by the defendant No.1 and his father Krishnappa 18 OS No.25131/2007 and hence they had no authority to deal with the same in any manner. They have also contended that Krishnappa and his children have no independent right to enter into any Agreement or to execute General Power of Attorney and there was no layout formed in the land bearing Survey Number-42 as claimed by the plaintiff and therefore the suit schedule site is not in existence and sale deed registered in the name of the plaintiff is in respect of non existing property and as on the date of the Regd. Sale Deed and also on the date of filing the written statement there were no houses in existence in the suit property. Plaintiff in the above suit might have misused the signatures of late Krishnappa and Defendants 2 and 3. The Affidavit claimed by the plaintiff has not been sworn to by their father.
Plaintiff were not in possession of the suit property as on the date of the suit and there was a suit between the 19 OS No.25131/2007 defendant No.1 and his father Krishnappa in OS No. 8415/1996 in the Court of Addl. City Civil Court, Bengaluru and the same was compromised on 07.12.2006 and they have partitioned the said land and other lands as per the Sketch annexed to the compromise petition filed in the said suit. Defendants claim that even to this day the suit property is agricultural land and plaintiff has filed a false suit without having possession of the suit site.
12. It is the case of the plaintiff that after instituting the suit, defendants have put up construction in the suit property and therefore the plaintiff who had originally filed the suit for permanent injunction have got amended the plaint and sought the relief of mandatory injunction for removal of the construction and for possession by contending that even though interim order of injunction was in force and later same had been modified into an 20 OS No.25131/2007 order of status quo by the High Court of Karnataka, Bengaluru, in violation of the same, the Defendants have put up said constructions during the pendency of the suit. Defendants have filed additional written statement denying the constructions of any building after institution of the suit.
13. On behalf of the defendants defendant No.1 has got himself examined as DW.1 and got marked Ex.D.1 to D.44 documents. Details of the said documents are as below:-
Ex.D.1 Certified copy of the Appeal in RFA No.1022/1997 Ex.D.2-3 Certified copy of the Encumbrance Certificate Ex.D.4-6 Certified copy of the R.T.C Ex.D.7 Certified copy of the compromise petition in OS No.8415/1996 Ex.D.8 Certified copy of the final decree in OS NO.8415/1996 Ex.D.9 Certified copy of the Layout Plan 21 OS No.25131/2007 Ex.D10-11 Certified copy of the Encumbrance Certificates Ex.D.12-13 Certified copy of the RTC Ex.D.14-15 Tax paid receipts Ex.D.16 Certified copy of the final decree in OS No.8415/1996 Ex.D.17 Certified copy of the Encumbrance Certificate Ex.D.18 Certified copy of the Tax paid receipt Ex.D.19 Certified copy of the Affidavit of Krishnappa and Venkatappa Ex.D.20 Copy of the notice issued to P.Radhamma Ex.D.21 Certificate of posting Ex.D.22 Postal receipt Ex.D.23 Certified copy of the caveat petition Ex.D.24 Revocation of General Power of Attorney Ex.D.25-26 Postal covers Ex.D.27 Certified copy of the death certificate of Krishnappa Ex.D.28 Copy of Form 'B' register.
Ex.D.29 Copy of Tax paid receipts
Ex.D.30 Copy of Final decree in OS NO.8415/1996
Ex.D.31 Copy of the Final decree in OS No.8415/1996
Ex.D.32 Copies of the Record of Rights in respect of
Survey Number-42/1
22
OS No.25131/2007
Ex.D.33 Copy of Katha Certificate. Dtd. 27.12.2013
Ex.D.34 Copy of Form 'B' Register
Ex.D.35 Copy of Katha Registration notice dtd.
18.12.2013
Ex.D.36 Copies of Tax paid receipts
Ex.D.37 Copy of the Final decree in OS NO.8415/1996
Ex.D.38 Copies of 5 RTC
Ex.D.39 Copy of the Encumbrance Certificate
Ex.D.40 Certified copy of Form 'A' along with IPO
counter files
Ex.D.41 Endorsements issued by BBMP
Ex.D.42 Certified copy of the written statement in OS
No.8415/1996
Ex.D.43 Certified copy of the deposition of RW.1 in OS
No.8415/1996
Ex.D.44 Certified copy of the deposition of PW. 1In OS
No.8415/1996
Since it is an admitted fact that earlier the suit land bearing Survey Number- 42 belonged to the defendants father Krishnappa and he had acquired the same under a Partition Deed between himself and his brothers, above said documents produced by the defendants are not of 23 OS No.25131/2007 much consequence. The R.T.Cs. have been produced by the defendants to show that the suit property had been entered in their name and the same is as per the Decree granted in the Partition suit in OS No.8415/1996. They have also produced certified copy of the Decree in the said suit. Further, they have produced one affidavit which is said to have been sworn to by their father Krishnappa and other family members as per Ex.D.19 and copy of the legal notice as per Ex.D.20, revocation deed of General Power of Attorney as per Ex.D.24, copy of the caveat petition, pleading; and final decree in OS No.8415/1996 as per Ex.D.16. They have produced layout plan in respect of land bearing Survey Number- 42/P5 as per Ex.D.9. Under the legal notice marked at Ex.D.20, defendants claim that they have canceled the General Power of Attorney that had been given. The said notice read as below:- 24
OS No.25131/2007 "Under instructions from my client Sri K. Gopala, son of Krishnappa, residing at No.5, I Cross, Srishaila Nilaya, Venkataramaiah Layout, Ramamurthynagar, Main Road, Doddabanaswadi, Bangalore 43, I cause this notice to you as follows:-
1. My client informs me to state that at the instance of his father, my client's aunt viz., Papamma and her six children have executed a Power of Attorney on 14/'16-12-
1998 touching the site No.14 of Aralakunte village, Begur Hobli, Bangalore South Taluk, formed in Survey No.42 measuring East to West 30 feet and North to South 40 feet to manage and supervise the same.
2. My client further states that he was under the terms and dictates of his father was forced to sign the said power of of attorney among others jointly. He further states that his sisters viz., Bharati, Roopa and brother Manjunatha were the minor as on that date, and they were not duly represented by natural guardian. My client's brother and sisters being minor shad no contractual capacity. hence, they can't be termed as executants of the documents stated supra. The so called minors including my client were under the terms and dictates of their father. The signature of my client and his sister Rukkamma and step mother Papamma were obtained by exercising the undue influence My client further states that is there is no consensuses ad-idem to execute the general power of attorney in your favour to act as an agent of my client to carry out the work as stated in the General Power of Attorney stated supra, touching the property mentioned therein. That as per my client's instructions and as per the grounds stated above, I hereby revoke the General Power of Attorney 25 OS No.25131/2007 executed in your favour on 14/16-12-1988 touching the site No.14 formed in Survey No. 42 Aralakunte village, Begur Hobli Bangalore South Taluk.
Therefore, I hereby revoke the General Power of Attorney executed in your favour and further call upon you not to act on the strength of the Power of Attorney dated 14/16-12-1988, touching the aforesaid site No.14, 18 inspite of this notice, if you proceeded further, your actions will not be binding on my client in any manner". It is the contention of the plaintiff counsel that the above said legal notice issued by defendant No.1 itself shows that the General Power of Attorney produced by the plaintiff had indeed been executed by Krishnappa and his family members. In fact, the contents of the above legal notice and also averments in the written statement show that the same admit the fact that Krishnappa and his family members had executed Sale Agreement and General Power of Attorney in question. But, the defendant No.1 claims that he was forced to sign the said Power of 26 OS No.25131/2007 Attorney jointly with other family members. He further contends in the legal notice that his sisters Bharathi, Roopa and brother Manjunath were minors as on that date and they were not duly represented by their natural guardian and therefore, the General Power of Attorney claimed by the plaintiff are illegal. Hence the above said contention of the defendants in the written statement and also legal notice at the outset show that Krishnappa and his family members had executed the Sale Agreement and General Power of Attorney as claimed by the plaintiff. Now burden rests on the defendants to prove that the Power of Attorney was obtained by coercion. Therefore, the evidence will have to be verified to find out if the defendant No.1 has proved that his signatures on the General Power of Attorney in question were obtained forcibly by his father. Further, said contention of the 27 OS No.25131/2007 defendants in the legal notice implies that defendants father Krishnappa had voluntarily executed the General Power of Attorney and it is the case of the defendants that only defendant No.1 was forced by his father to sign the GPA jointly along with other family members. Hence, from the contention taken in the legal notice of the defendants, it is clear that the defendants father had voluntarily executed the General Power of Attorney. Now, it has only to be verified whether the signatures of the defendant No.1 had been forcibly obtained to the General Power of Attorney in question.
14. Ex.D.20 has been issued by defendant No.1 alone. The plaintiff have contended that defendant No.1's father and his brothers and sisters had not authorized him to issue the said legal notice. In view of the said contention, defendants have produced Ex.D.19 affidavit 28 OS No.25131/2007 purportedly executed on 25.02.1995 to show that his father and other family members have authorized him to cancel the Power of Attorney documents in question. plaintiff counsel has argued that the same has been concocted in order to fill up the lacuna in the legal notice wherein it is clearly mentioned that defendant No.1 alone has issued the same to the plaintiff. In this backdrop, I proceed to consider whether the General Power of Attorney on the basis of which the Sale Deed have been got registered had been duly canceled by the defendants and their family members prior to the plaintiff obtaining the Regd. Sale Deeds on the strength of the said General Power of Attorneys. Of-course, plaintiff counsel argues that the Sale Agreement and General Power of Attorney had been executed by receiving the sale consideration and therefore the General Power of Attorney in question were coupled 29 OS No.25131/2007 with interest and hence the defendants could not have canceled the General Power of Attorney. General Power of Attorney was irrevocable and the notice issued as per Ex.D.20 has no value in the eye of law. As a matter of fact Ex.D.24 is the Deed of Revocation of General Power of Attorney unilaterally executed by defendant No.1 on 23.03.1995. Plaintiff has got sale deed marked at Ex.P.4 registered on 30.03.1995 i.e., subsequent to the legal notice marked at Ex.D.20 and Deed of Revocation of GPA marked at Ex.D.24. Of course, when the plaintiff obtained the Regd. Sale Deed dated. 30.03.1995 defendants father was still alive and defendants have produced the death certificate of their father as per Ex.D.27 which shows that he passed away on 07.12.2006 which is just prior to filing of this suit.
30
OS No.25131/2007
15. In this connection, evidence of Defendant No.1/ D.W.1 requires to be noted. During cross examination on pages-7 and 8 he admits that he had issued legal notice to the plaintiff herein canceling the General Power of Attorney. At page-7 of his cross examination, he states that since some one inquired him about one Krishnappa and handed over the Power of Attorney stated to have been executed by the said Krishnappa, he handed over the copy of the said G.P.A. to his advocate and asked him to issue notice to the plaintiff. On one hand he states that he and his father Karishnappa and other members together got the G.P.A. canceled and on the other hand, he states that some one enquired him about the General Power of Attorney executed by Krishnappa and handed over the copy of the same and hence he in turn gave it to his counsel and got the GPA canceled. Defendant No.1/D.W.1 31 OS No.25131/2007 has not made any effort to explain what force was used by his father to make him affix his signatures to the Sale Agreement and GPAs. in question. Instead he has sought to give dubious explanation for the same by stating that he issued notice because someone inquired him about the General Power of Attorney executed by Krishnappa and handed over a copy of the same to him. If his father had forced him to affix his signature to the documents and there was a suit for partition filed by him against his father then how they together issued the legal notice canceling the General Power of Attorney demands an answer, that too, when in the said suit defendant No.1 to 3 and their father and other family members have all entered into compromise and obtained a compromise decree. Importantly, burden is on the defendants to prove that the signatures of the GPA had been obtained by forcing to affix 32 OS No.25131/2007 the signatures. But, defendants have not produced any plausible or cogent evidence to accept the said contention.
16. When that is so, in the cross examination, Defendant No.1/D.W.1 states that signature in Ex.P. 3 and 4 (should have been Ex.P.2 and 3), Sale Agreement and General Power of Attorney dtd. 14.12.1988 appears to be his signatures, but he has not affixed said signatures. His said statement can be found at page-11 of his cross examination. (It appears this part of evidence is copy pasted from another connected case and therefore, there is error). But, thereafter, on page-14 of his cross examination he admits that Ex.P.2(a) to (e) are his signatures in Ex.P.2 and then states that he cannot identify his father's signature. Again he admits that in Ex.P.3, he 33 OS No.25131/2007 has affixed signature as per Ex.P.3(a) to (d). His earlier statements on page-11 is as follows:-
"The signatures in Ex.P.3 and Ex.P.4 appears to be mine. But I have not signed Ex.P.3 and Ex P.4. It is not true to suggest that myself, my father, Rukamma, Papamma and Rajamma have signed Ex.P.3 and Ex.P.4. It is not true to suggest that my signature in Ex.P.3 are Ex.P.3(a) to Ex.P.3(d).".
After denying his signature in Ex.P.2 and 3 on page- 11, when his cross examination was resumed on the adjourned date he has made admission on page-14 as below:-
"Signatures Ex.P.2(a), Ex.P.2(b), Ex.P.2(c), Ex.P.2(d) and Ex.P.2(e) in Ex.P.2 are my signatures. I cannot identify the signature of my father. It is not true to suggest that my family members have signed Ex.P.2. In Ex.P.3 Ex.P.3(a), Ex P.3(b), Ex.P.3(c) and Ex.P.3(d) are my signatures. I know reading Kannada".
Defendant No.1/DW.1 has blown hot and cold by denying his signatures and then admitted the same. In the legal notice he has admitted affixing his signatures and has 34 OS No.25131/2007 stated that he is canceling the G.P.A. on the ground that his signatures were obtained forcibly. But, while answering under cross examination he has prevaricated by once admitting his signatures and then denying same at another point. So, it is very clear that D.W.1/Defendant No.1 is not a credit worthy person. Burden being on the defendants to prove that the signatures had been taken forcibly to the documents, defendants have not produced any cogent material before the court to accept the said contention. On the other hand, evidence above clearly shows that defendant No.1 has affixed his signatures to all the Sale Agreement and General Power of Attorney dtd. 14.12.1988 executed in favour of the plaintiff in the above said suits.
17. Plaintiff counsel has placed reliance on a number of decisions to contend that the General Power of Attorney 35 OS No.25131/2007 having had been executed by receiving sale consideration same were coupled with interest and executants had no power to revoke the said G.P.A. Learned counsel for the plaintiff has placed reliance on the decisions in Suraj Lamp Industries Vs. State of Haryana; Hardip Kaur Vs. Kailash and another to buttress the point. Learned counsel for plaintiff has also relied on section 202 of the Indian Contract Act, 1872 and Sec. 53-A of the Transfer of Property Act, 1882. Sale Agreement marked at Ex.P.2 which is dated 14.12.1988 shows that under the said Sale Agreement entire sale consideration has been received by the executants. Under the above said Sale Agreement sale consideration has been fixed at Rs.10,000/- and same is shown to have been entirely paid and received. Said documents have been executed by the defendants father Krishnappa and his first wife's only son-defendant No.1, 36 OS No.25131/2007 his second wife Papamma and her children Rukkamma, Rajamma, Muniraju (defendant No.2) and Manjunatha (Defendant No.3); Bharathi and Roopa. Among them defendant Nos.2 and 3 and their sisters Bharathi and Roopa have been shown as minors and they have been represented by their father Krishnappa in the said document. Sale Agreement contain recitals that sites have been formed in the land bearing Survey Number- 42 of Arulukunte village measuring 1 Acre 16 guntas and in view of the difficulty faced by them for meeting domestic necessities, protection of minor children and their educational expenses they are selling the sites formed in the layout in the above land. Apart from the same, later in view of the dispute by the children of the second wife, plaintiffs claim that another Agreement dtd. 09.09.1996 as per Ex.P.8 was executed. And Affidavit was executed on 37 OS No.25131/2007 24.10.1996 by Krishnappa's 2nd wife Papamma and her sons-Defendant Nos.2 and 3, Daughters Bharathi and Roopa. At the time of execution of the Affidavit, defendants 2 and 3 and Bharathi had become majors and their sister Roopa was still a minor and she has been represented by her father Krishnappa. In the said affidavit they have confirmed that they have sold sites in question as per Sale Agreement and General Power of Attorney executed by them and they have also ratified the Sale deed got registered on the basis of the G.P.A and have also admitted delivery of vacant possession of the site to the purchaser and have stated No objection for change of Katha in favour of the purchasers under the sale deeds executed by virtue of the General Power of Attorney. Defendants 2 and 3 who are the signatories to the Affidavit have not chosen to enter the witness box to deny their signatures therein. 38
OS No.25131/2007 Therefore, I am of opinion that even the above said affidavit has been proved.
18. In this suit relief of declaration of title has not been sought and the defendants counsel has placed reliance on the decision in the case of Anathula Sudhakara Vs. P.Buchi Reddy (Dead) by L.Rs. Reported in AIR 2008 S.C.2033 to contend that in the absence of seeking the relief of declaration of title in the light of serious dispute regarding the title of the plaintiff to the suit, the above suit itself is not maintainable. In fact, plaintiff counsel has also placed reliance on the said decision to contend that when the title and possession on the face of records is clearly established, need for seeking declaration of title does 39 OS No.25131/2007 not arise and also if plaintiff can establish possession of the property independently, then also need for seeking the relief of declaration of title, does not arise. Learned counsel for the plaintiff has also argued that plaintiff would be entitled to protect their possession of the suit property under section 53A of the Transfer of Property Act as he had been put in possession by receiving entire sale consideration and therefore, irrespective of question of title, plaintiff is entitled to protect possession of his sites under the said provision.
19. Learned counsel for defendants has placed reliance on the decision in U.Vijaya Kumar Vs. Malini.V.Rao reported in ILR 2016 Kar. 2670 to 40 OS No.25131/2007 argue that without the consent of the Principal, agent could not have dealt on his own account and the Principal may repudiate the transaction. Said proposition is at para-6 of the said decision. Said principle has been stated in relation to the transaction where material facts have been dishonestly concealed by the Agent and advantage has been taken of by the Agent. In this case, material discussed show that by receiving the entire sale consideration Sale Agreement and General Power of Attorney were executed along with affidavit. Therefore, same had created interest in favour of the Agreement holder-cum-General Power of Attorney Holder and hence above decision does not aid defendants case in the face of Sec. 202 of the Indian Contract Act.
41
OS No.25131/2007
20. Learned counsel for defendants has relied on a decision in Kewal Krishan Vs. Rajesh Kumar and ors, DD 22.11.2021 in Civil Appeal No.6989- 6992/2021 and drawn attention to the proposition laid down at para-15 of the said decision. Said decision lays down the Law with respect to non payment of Sale price and its consequences. But, in this case, Sale Agreement clearly shows that entire sale consideration was paid thereunder and subsequently when again dispute arose from the side of the second wife and children of Krishnappa, a settlement has been reached and another Agreement dtd.9.9.1996 was entered and thereafter Affidavit has been sworn to by reaffirming the sale of the suit sites by expressing no objection for getting the katha changed in their names. Hence, 42 OS No.25131/2007 above decision also do not apply to the facts of this case which is under consideration.
21. As regards the possession of the plaintiff is concerned, Learned counsel for defendants has relied on a decision in the case of Vasudev and Ors. Vs. Tukaram Bhimappa Naik and ors., reported in ILR 2014 Kar. 4716 to contend that entries in revenue records are still in the name of defendants and since the suit property is agricultural land,said entries have significance and therefore, plaintiff case that they are in possession of the suit property cannot be accepted. Even though the entries in revenue records are entitled to presumption under section 133 of the Karnataka Land Revenue Act, they are rebuttable in nature. Admitted facts in the Sale Agreement that layout of 43 OS No.25131/2007 residential sites was formed and sites were sold to the purchasers thereunder shows that although no order for conversion of the land for non agricultural use was taken, defendants family has formed sites in the revenue land and sold same to various persons. There is clear recital in the Sale Agreement and also later affidavit, about handing over of possession of the suit schedule site to the purchaser. Same clearly rebuts presumption which were available in respect of the entires in favour of defendants. Hence, said contention also falls on ground.
22. Relying on a decision in the case of Jitendra Singh Vs. State of Madhya Pradesh and Ors, reported in 2021(2) Kar.L.R.477 (SC) it has been contended by defendants counsel that revenue entries 44 OS No.25131/2007 do not extinguish title to the property. Here, in this case, title is not being considered on the basis of the revenue entires. Admittedly, suit property originally belonged to Kirshnappa who is the father of defendants, he having had acquired it under the family partition. But thereafter, defendants family has formed a layout of residential sites and sold the sites to third parties including the plaintiff. They have executed unregistered General Power of Attorney and on the strength of the same, in turn the GPA Holder being wife of the plaintiff has executed Sale Deed. In the case of Rajni Tandan vs.Dulal Ranjan Ghosh Dastidar, in Civil Appeal No.4671/2004, the Apex court has held that even though the sale deed has been executed on the basis of an unregistered General Power of Attorney 45 OS No.25131/2007 yet when same is executed by General Power of Attorney Holder in his independent right, mere fact that General Power of Attorney was unregistered document does not prevent transfer of title. Apex court has explained the reason for expecting documents to be registered by highlighting that same is to safeguard the interest of the contracting parties and to prevent fraudulent transactions, the ratio laid down in Rajni Tandon case as reflected in the head note and excerpts thereunder is as follows:-
".A. Registration Act, 1908 - Ss. 33(1) and 32 - Presentation by exccutant of document on the basis of an unregistered power of attorney - Compulsory registration of power of attorney under S. 33 - When and to whom applicable - No allegation of fraud -- Effect - Vendor principal authorizing agent to execute a sale deed on the basis of an unregistered power of attorney (only notarized) - Agent (power-of-attorney holder) executing sale deed - Thereafter agent presenting sale deed for registration on the basis of the same unregistered power of attorney - Legality - Compulsory registration of power of attorney of an agent presenting a document for 46 OS No.25131/2007 registration, held, would have been mandatory only if power- of-attorney holder (agent) presenting the document would not have been the executant As the power-of-attorney holder was the executant of the document, held, he was also legally competent to present the document for registration - Object of Registration Act, 1908 being to prevent fraud, and no allegation of fraud since made, the registration, held, was proper B. Registration Act, 1908 - Object of, held, is designed to guard against fraud by obtaining a contemporaneous publication and an unimpeachable record of each document The High Court by the impugned order in second appeal, held, that the sale deed in favour of the appellant-plaintiffs was not properly registered. The High Court held that since the power of attorney was admittedly, not a registered document and was simply notarized, 1, power-of-attorney holder who executed and signed the document on behalf of N, could not have presented the document for registration in view of Sections 32 and 33(1)(a) of the Registration Act, 1908 Allowing the appeal, the Supreme Court Held: Section 33 will come into play only in cases where presentation is in terms of Section 32(0) of the Registration Act, 1908. In other words, only in cases where the person(s) signing the document cannot present the document before the registering officer and gives a power of attorney to another to present the document that the provisions of Section 33 get attracted. It is only in such a case, that the said power of attorney has to be necessarily executed and authenticated in the manner provided under Section 33(1)(a) of the Registration Act. Where a deed is executed by an agent for a principal and the same agent signs, appears and presents the deed or admits execution before the registering officer, that is not a case of presentation under Section 32(c) oft f the Act. (Paras 33 and 27) D. Sardar Singh v. Seth Pissumal Harbhagwandas 47 OS No.25131/2007 Bankers, AIR 1958 AP 107; Abdus Samod v. Majiran Bibi, AIR 1961 Cal 540 overruled Motilal v, Ganga Bal, AIR 1915 Nag 18; Gopeswar Pyne v. Hem Chandra Bose, AIR 1920 Cal 316; Aisha Bibi , Chhaiju Mal, AIR 1924 All 148; Sultan Ahmad Khan V. Sirajul Haque, AIR 1938 All 170; Ram Gopal L Mohan Lal, AIR 1969 Punj 226; Goswami Malli Vahuji Maharaj v. Purushottam Lal Poddar, AIR 1984 Cal 297, referred to In this cause, the presentation is by the actual executant himself who had signed the document on behalf of the principal and therefore, the agent/power-of- attorney holder is entitled under Section 32(a) to present it for registration and to get it registered even though the power of attorney was not a registered document and only notarized. In the facts of the present case, it is quite clear that I was given the full authority by N under the notarized power of attorney to transfer the The suit property and to execute the necessary document. It is an accepted position that the transfer deed was executed by / in the name and on behalf of N thereof. Therefore, for the purposes of registration office under Section 32(0), 1 is clearly the "person executing the document. The plea taken by the respondents that in order to enable / to present the document it was necessary that he should hold a power of attorney authenticated before the Sub-Registrar under the provisions of Section 33 is not tenublons per the language of Section 32 (Paras 34 and 28) The object of registration is designed to guard against fraud by obtaining a contemporaneous publication and an unimpeachable record of each document. The instant crise is one where no allegation of fraud has been raised. In view thereof the duty cast on the registering officer under Section 32 of the Act was only to satisfy himself that the document was executed by the person by whom it purports to have been signed. The Registrar upon being so satisfied and upon registration of the same being presented with a document to be registered had tightly to proceed with the 48 OS No.25131/2007 (Para 29)26. We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/WIL In a much subsequent decision in the case of Suraj Lamp Industries Pvt. Ltd. Vs. State of Haryana (2012) 1 SCC 656 the Apex court has though laid down that an end should be put to the transactions of unregistered General Power of Attorney it has been held that the said decision is not intended to affect the bona fide transactions which have taken place heretofore. In Suraj Lamp Industries Pvt. Ltd. Case, at para-26 and 27, it is held as under:-
"26. We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/WILL transactions are not `transfers' or `sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said `SA/GPA/WILL transactions' may also be used to obtain specific performance or to defend possession under section 53A of TP Act. If they 49 OS No.25131/2007 are entered before this day, they may be relied upon to apply for regularization of allotments/leases by Development Authorities. We make it clear that if the documents relating to `SA/GPA/WILL transactions' has been accepted acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision.
27. We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a Power of Attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding `SA/GPA/WILL transactions' are not intended to apply to such bonafide/genuine transactions"
Hence, considered in the light of the above said decisions, though this is not a suit for declaration of 50 OS No.25131/2007 title it cannot be said that the plaintiff has not derived ownership to the suit proprieties. Moreover, the Sale Agreement and Affidavit executed in favour of plaintiff clearly show that possession of the suit schedule sites had been handed over thereunder by receiving entire sale consideration.
23. Above discussed materials show that the plaintiff was actually in possession of the suit land as on the date of the suit. I have further considered cross examination of Pws.1 and 2 in the case. In the cross examination of PW.1 and 2 there is nothing elicited which discredit the plaintiff claim in the suit sites regarding documentary evidence relied upon by them or their oral testimony in so far as the possession of the suit schedule property is concerned. PW.1 states that defendants father had shown Ex.P.6 layout 51 OS No.25131/2007 Plan. He has denied that Ex.P.6 Layout plan did not exist. Defendants are seriously disputing the identity of the suit property. PW.1 has stated that earlier to the Agreement he had visited the suit schedule property. He has denied the suggestion that the suit schedule site as mentioned in the Sale Deed is not in existence. From the contention of the defendants in the written statement as well as the legal notice caused by the defendant No.1 to the plaintiff and admissions elicited regarding defendant No.1's signatures in Ex.P.2 and 3 during his cross-examination and his feigning ignorance regarding signatures of other parties such as his father and other family members in the said documents clearly show that the defendants father, defendant No.2 and other family members have executed same. Further, PW.1/Plaintiff in his cross 52 OS No.25131/2007 examination to a specific questionthat the defendants are in possession of entire 1 Acre 16 guntas in Survey Number- 42, has answered in affirmative, but in the very next question he has denied that he is not in possession of the suit schedule site. It is settled law that stray admission in cross examination should not be taken into consideration in isolation of other evidence when defendants counsel has made submission that at the time of hearing on IA No.I, suit property was vacant and per contra, documentary evidence shows that possession of suit site had been delivered under Sale Agreement, question of defendants coming into possession until constructions were put up later on, does not arise. Hence, the said admission requires to be ignored having regard to his 53 OS No.25131/2007 very next statement denying suggestion that he was not in possession of the suit site. PW.2 who is the son of the plaintiff, in his cross examination states that in 2009 he saw the suit site and he does not known when compound wall was constructed. He of-course states that he did not see who put up the said construction and that his father had told him that the defendants were residing in Survey Number-42. He has denied the suggestion that defendants have not put up any further construction. He has deposed on the information given by his father. Point at present is whether the plaintiff has proved his possession of the suit schedule property as on the date of the suit. For the purpose of the said point, above statement is not of much consequences, because suit has been filed in 54 OS No.25131/2007 the year 2007. P.W.1 resides in USA with his another son and PW.2 states that he visited the suit site only once. However, if suit property was vacant as on the date of suit, possession will have to be decided on the basis of title and documents.
24. Now, in this circumstance, documentary evidence discussed earlier will have to be considered. As already held, plaintiff has proved the Sale Agreement and General Power of Attorney. The said Sale Agreement clearly disclose that the entire sale consideration was received and possession was handed over thereunder. Of-course, they are unregistered Sale Agreement. On the basis of the unregistered Sale Agreement possessary interest of course cannot be held to have passed in view of bar under section 49 of the Registration Act. Yet, the GPA has been executed 55 OS No.25131/2007 and the plaintiff has secured the Sale Deed on the basis of the said G.P.A. As held in the case of Rajni Tandon by the Supreme Court, sale deed registered on the basis of unregistered GPA was taken into consideration. When the evidence clearly shows that there were bonafide transaction and the possession of the property had been handed over to the purchasers that too prior to the later decision of the Apex court in Suraj Lamp Industries case, which has prospective effect, wherein it was held that practice of parties entering into the sale transactions on the basis of the unregistered GPAs. should be put to an end, I am of opinion that the Sale Deeds got registered by the plaintiff on the basis of the unregistered GPAs. a decade before the said later proposition of law was laid 56 OS No.25131/2007 down, requires to be given effect to, considering equity, in as much as in the later decision, observations can be found that the ratio was not intended to apply to the previous bonafide transactions. Further, even though the Sale Agreement is unregistered and inadmissible under section 49 of the Registration Act other than for specific performance, yet the same can be considered for collateral purpose. In this connection, a decision of Apex Court in the case of Bondar Singh and others Vs. Nihal Singh and others reported in (2003) 4 Supreme Court Cases- 161 , at para-5 it is held as under:-
"5. The main question as we have already noted is the question of continuous possession of the plaintiffs over the suit lands. The sale deed dated 9.5.1931 by Fakir Chand, father of the defendants in favour of Tola Singh, the predecessor interest of the plaintiff, is an admitted document in the sense its execution is not in dispute. The only defence set up against said 57 OS No.25131/2007 document is that it is unstamped and unregistered and therefore it cannot convey title to the land in favour of plaintiffs. Under the law a sale deed is required to be properly stamped and registered before it can convey title to the vendee. However, legal position is clear law that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes. In the present case the collateral purpose to be seen is the nature of possession of the plaintiffs over the suit land. The sale deed in question at least shows that initial possession of the plaintiffs over the suit land was not illegal or unauthorized. In this case, what is referred to as Sale Agreement is actually unregistered Sale Deed. It can be looked into for collateral purpose regarding passing of Sale consideration and initial possession. An acknowledgment of receipt of money does not require registration. Hence, I am of the view that based on the above said discussed evidence, plaintiff has proved his 58 OS No.25131/2007 possession of suit schedule site as on the date of the suit.
25. Now, question is whether the defendants have put up construction in the suit property during the pendency of the suit in violation of the interim order of temporary injunction which was modified into an order of status quo in MFA No.9684/2004 by the High Court of Karnataka, Bengaluru. Defendants have contended that during the later stage of the suit that the buildings in question in the suit property were already existing before institution of the suit. In other words they are denying putting up the construction in violation of the interim order of injunction/status quo. Learned counsel for the plaintiff has called attention of the court to the order passed by this court on the 59 OS No.25131/2007 plaintiff's interlocutory application which had been filed under order 39 Rules 1 and 2 of the CPC thereby granting an order of temporary injunction in their favour pending disposal of the suit. Learned counsel for plaintiff argues that while the said I.As. were being heard, defendants counsel had made a clear submission before the court that entire extent of 1 Acre 16 guntas of Survey Number- 42 is vacant land and likewise suit schedule property is vacant site and no construction is put up in the suit schedule property. Both counsel had made said submission and the same has been noted by the Learned Presiding Officer in order dtd. 26.07.2007 passed on I.A.No.I at para-8 of the said Order. At para-8 of the said order dtd. 26.07.2007 this court has observed as follows:- 60
OS No.25131/2007 " As per the arguments advanced by both counsel land measuring 1 acre 16 guntas of Survey Number- 42 is a vacant land likewise, the suit property is a vacant site. No construction put up in the schedule property."
The above observation made by my Learned Predecessor while disposing off IA No.I shows that defendants counsel while submitting arguments on the above said I.As. had made submission that entire land measuring 1 Acre 16 guntas in Survey Number- 42 including the suit schedule sites were vacant and no construction had been put up in the property at that time. In fact, said submission binds the defendants in as much as same is pertaining to point of fact and not concession given in regard to question of law. In Ex.P.4 Sale Deed, of- course, there is mention that there exist a house of 1 Square and it seems the same is mentioned for registration purpose. In all the 13 connected suits being 61 OS No.25131/2007 disposed off at present, in the sched ule of each of said 13 sale deeds, it is mentioned that there is a shed/room measuring one square. But, as admitted by defendants, there is no such rooms. Even Commissioner report states that such rooms in each site do not exist. Since, the sites were formed in revenue/agricultural land, it is possible for registration purpose, they have mentioned about existence of a room in their sale deeds. Hence, suit land was vacant as on the date of suit is manifest.
26. That aside, in the original written statement filed in the case, defendants have specifically pleaded that even as on the date of filing the written statement there was no house in the suit property. Said contention of the defendants is on page-2, para-2 of 62 OS No.25131/2007 their written statement. Further, at para-2 of the written statement they have pleaded that the suit land is still an agricultural land. Besides, defendants have no where contended in their original written statement about putting up any construction or existence of any construction in the suit schedule property as on the date of filing the written statement. In the addl. Written statement filed by them much later, it is contended that their sisters are in occupation of a portion of land bearing Survey Number-42/P5. Thus, they have pleaded that subsequent to filing of the suit they have not put up any construction in violation of the interim order of injunction/status quo. It is not their case that the construction put up by their sisters is in the suit schedule site.
63
OS No.25131/2007
27. Now, we may turn to the report of the Court Commissioner in the case in detail. At the instance of the defendants counsel, an advocate court commissioner was appointed who has conducted the local inspection and submitted report for this suit and 12 other connected suits, and pursuant to the objections filed to the same by the plaintiff, he has been examined as C.W.1 and cross examined in the lead case/OS.No.25124, 25125, 25127, 25128 and 25129/2007. Ex.C.1 to C.12 have been marked through the Court Commissioner and certified copy of his deposition and exhibits are produced in this suit. Ex-C.5 is the Spot mahazar drawn by him and Ex.C.6 is his Report and Ex C.7/1 to 40 and C.8/1 to 20 are the Photographs taken by the Court commissioner of the suit schedule property during the local inspection. Ex C.9 and 10 are the C.Ds. of the said photographs. Ex C.12 is the statement of 64 OS No.25131/2007 objections filed by the plaintiff to the Commissioner's Report. According to the Report of the Commissioner, to the west of the entire property bearing Survey Number- 42/P5 there is a road, and there is another road which runs from West to East in between the building where name of 'K.Bharathi' was written and Zinc sheet scraps covered dumping area in the said Survey Number- 42/P5 land. The Court Commissioner has noted boundaries for the entire land and existence of shed in the southwest corner with the name written on its western wall as 'K. Manjunatha Reddy' who is defendant No.2 in this case. He has further noted that next to the said shed on the northern side there was a wall constructed with cement bricks without plastering and next to the said wall there was another shed on the northern side and western wall of the said shed wall also bear board with name 'K.Manjunatha Reddy' i.e., 65 OS No.25131/2007 defendant No.3 and there is a big gate to the north of the said shed facing western side and towards north of the said gate there are zinc sheet covering compound wall, and the defendant No.3-K.Manjunatha Reddy opened the gate and scrap materials had been dumped in the said place which was fully covered by zinc sheet on the compound wall and next to the said zinc sheet covered area, on the north side, there is a road from west to east and behind scrap materials dumped area and south west wall mentioned above there were cattle tied and dairy activity could be seen and on the west side of the two sheds bearing the name of 'K.Manjunatha Reddy' there was debris. The above said road runs from West to East on the south west of cattle shed and on the south west side of the road referred above, sheet roof building had been constructed with writing on its western wall as 'This house 66 OS No.25131/2007 belongs to K.Bharathi Survey Number- 42/P5' and towards east of said building there is vacant land and there is compound wall towards north of this vacant land and on the compound wall on the eastern side after the building of 'K.Bharathi' name of 'Roopa D/o Krishnappa' is written and then towards east of the same compound wall another name 'Padma D/o Krishnappa' was written. Court commissioner states that a huge cow-dung was stored in the said place and next to Bharathi's property till eastern boundary it was vacant except for storage of cow dung. It is further stated that towards north of the building referred as 'K.Bharathi' there is compound wall and there is western side road towards north having a curve and near the said curve there was a wall on the northern side with a gate and on the western wall there was writing 'This property belongs to K.Gopal S/o Krishnappa Survey Number- 42/P5, 67 OS No.25131/2007 Aralukunte village' who is defendant No.1. There was no agricultural activities on the land other than dairy activity with the structures mentioned above in the above said Survey Number land.
28. Above said report of the court commissioner which has not been objected by the defendants show that as on the date of the said Commissioner conducted the local inspection on 12.01.2013 above said constructions of sheds, compound walls and storage of scrap material was found. In fact, photos of the same have been produced by the Court Commissioner. Since it has been held that the suit land was vacant as on the date of the suit in view of the written statement pleadings and also submissions made by both the counsels during hearing of I.A.NO.I, which has been noted in the order dtd. 26.07.2007 by my 68 OS No.25131/2007 learned Predecessor, court commissioner's above said finding shows that the above said constructions have been made subsequent to filing of the suit. That too, when there was an interim order of injunction/status quo in respect of the suit property. Cumulative upshot is that temporary and some permanent like constructions have been put up in the suit schedule property subsequent to filing of the suit in violation of the interim order granted in the case. Order sheet shows that on 6.2.2007 interim order of injunction was granted with direction to the plaintiff and defendants to maintain status quo till disposal of the I.A. No.I, thereafter by order dtd.26.07.2007 order of temporary injunction to restrain the defendants from interfering with plaintiff possession of the suit property till disposal of the suit was granted by allowing IA No.I filed by the plaintiff. Again in MFA No.9684/2004 said order has been modified 69 OS No.25131/2007 with a direction to both the parties to maintain status quo. Therefore, there is interim order of status quo/temporary injunction/status quo till date. When such is the case, plaintiff has established that the suit lands were vacant as on the date of the suit. Now, the court commissioner report shows that there are some temporary and permanent structures put up in the suit schedule sites and spreading over the entire land in Survey Number- 42/P5. Natural corollary is that the said constructions have been put up subsequent to institution of the suits in violation of the interim orders in force.
29. Further, in the cross examination of the Court Commissioner, Learned counsel for plaintiff has confronted some recent photographs of the suit schedule properties as per Ex.P.114 to 117 (marked in OS 70 OS No.25131/2007 No.25124/2007). When Ex.P.114 photo was confronted, the Court Commissioner/C.W.1 has admitted that the said photo pertains to the same property which is in dispute and it was inspected by him. But, then he has stated that when he inspected, nature of the property was different from what is seen in the photo confronted to as per Ex.P.114. Similarly, he has admitted Ex.P.115 Photograph and Ex.P.116 Photo. He states that the Shed marked in Ex.P.116 was not in existence when he conducted the local inspection under Warrant. So, same shows that subsequent to the Court Commissioner conducted the local inspection and submitted report again constructions have been made in the suit properties. Defendants have not chosen to cross-examine C.W.1/Commissioner. Similarly in respect of Ex.P.117 Photograph Court Commissioner has admitted that when he conducted the 71 OS No.25131/2007 local inspection there was zinc sheet for the roof, but now same has been changed. He admits that in his report he has wrongly mentioned the sheet roof building on which name of K Bharathi is written as to be situated on the south western side instead of north western side. Evidence of Court Commissioner and the above photographs which were admitted by him show that not only after institution of the suit and passing of interim order constructions have been put up in the suit schedule property, but also even after court commissioner conducted the local inspection and submitted the report further constructions have been put up. Though the defendants claim that their sisters put up some constructions, photographs taken by the Court Commissioner show that on two sheds name of Defendant No.3-K.Manjunatha Reddy and defendant No.1-Gopal had been written. Also evidence of Court 72 OS No.25131/2007 Commissioner and Report show that it was defendant No.1 who opened the lock of a Gate of the compound wall put up. Preponderance of evidence shows that it is the defendants who have put up the construction of the said buildings in the suit property as well as remaining portion in Survey Number-42 of Aralukunte village measuring 1 Acre 16 guntas. Since it is clearly established that when the suit was filed entire land measuring 1 Acre 16 guntas was vacant and an interim order has been passed in favour of the plaintiff immediately upon entering appearance by the defendants, it is manifest that constructions have been put up subsequent to the granting of interim order of injunction and status quo in respect of the suit property by the defendants. In the written statement defendants have claimed that the suit schedule property was still an agricultural land as on the date of their filing the same. 73
OS No.25131/2007 But, the evidence of the Court Commissioner shows that when he conducted the local inspection the suit property did not have nature of agricultural land. Apart from that already constructions had been put up. Whereas, while submitting the arguments on I.A.No.I it has been recorded that both counsels have made submissions that entire land measuring 1 Acre 16 guntas in question was vacant as on the said date. In this context, P.W.2's stray statement in cross examination that his father had told him that the defendants family was residing in Survey Number-42 about which he has no personal knowledge, cannot be taken into consideration. Moreover, the defendants family has retained a number of sites in the layout for themselves after selling some sites to various persons.
30. From the above said evidence, I am of opinion that the plaintiff have proved that they were in lawful 74 OS No.25131/2007 possession of the respective suit schedule sites as on the date of the suit. They have also proved that during the pendency of the suit, the defendants have illegally put up Zinc sheet shed and stored scrap material in the suit property. It is also established from the above discussed evidence that the defendants have put up further constructions apart from above constructions in violation of the interim order/status quo granted in the case even after local inspection conducted by the Court Commissioner. Consequently, Issue No.1 and Addl. Issue No.1 are answered in the affirmative.
31. Issue No.2:- Discussions made on Issue No.1 and Addl. Issue No.1 amply prove that the defendants have interfered with the plaintiff's possession of the suit schedule property. Plaintiff has proved that the 75 OS No.25131/2007 suit schedule sites had been sold under Sale Agreement and General Power of Attorney by handing over possession of the properties to the purchasers and afterwards when some dispute had arisen parties reached a settlement and executed Affidavit thereby swearing to the fact that the suit schedule sites have been sold to the plaintiff by executing the General Power of Attorney and thus they have ratified the ownership of the plaintiff in respect of the suit schedule site. In fact, Sale Agreement referred to above is in the nature of unregistered sale deed. It has been executed as Sale Deed along with the General Power of Attorney, most probably due to prohibition of registration imposed by the Government in respect of revenue sites. But, even after entering into settlement defendants have 76 OS No.25131/2007 not stopped their claim over the suit property. Said fact itself shows that the defendants were interfering with the plaintiff's possession of the suit schedule property. Therefore, plaintiff has proved cause of action for the suit. Consequently, Issue No.2 is answered in the affirmative.
32. Additional Issue No.2 :- Suit has been filed initially for the relief of permanent injunction. Cause of action is claimed to have occurred on 03.01.2007 when the defendants tried to interfere with possession of the suit schedule property. Suit has been filed in the same year. Therefore, relief of permanent injunction sought in the suit is within the period of limitation. So far as the relief of mandatory injunction, it has been claimed by way of amendment during the pendency of the suit. plaintiff have sought the said relief following the defendants violating the 77 OS No.25131/2007 interim order of injunction and putting up the constructions and changing the nature of the suit schedule property. Hence, same is also within the period of limitation. Defendants contention that the suit is barred by limitation has not been substantiated in any manner. Consequently, Addl. Issue No.2 is answered in the negative.
33. Additional Issue No.3:- Defendants have contended that the court fee paid is insufficient. But, the suit is originally filed for the relief of permanent injunction by paying the requisite court fee of Rs.25/- by valuating the suit under section 26(c) of the Karnataka Court Fees and Suits Valuation Act. During the pendency of the suit, defendants have put up constructions in the suit property by violating the interim order of injunction/status quo 78 OS No.25131/2007 granted in the case and hence, plaintiff has sought the relief of mandatory injunction. When the defendants have violated the interim order of injunction/status quo and changed the nature of the suit property, court is bound to restore the suit property to its original status. Therefore, said relief of mandatory injunction sought for by the plaintiff having arisen in view of the defendants putting up constructions in violation of the interim orders of injunction/status quo, plaintiff is not required to pay further court fee. He is not required to seek relief of possession separately. This is settled position of Law. Therefore, contention of the defendants that the court fee paid is insufficient cannot be accepted. Consequently, Addl. Issue No.3 is answered in the negative. 79
OS No.25131/2007
34. Issue No.3 and Additional Issue No.4 :- To sum up the cases, plaintiffs have been put in possession of the suit schedule property initially under the unregistered Sale Agreement cum unregistered Sale Deed dtd. 14.12.1988. At the same time, General Power of Attorney (unregistered) has been executed in respect of each site in favour of the purchaser. In turn on the basis of the General Power of Attorney executed by the defendants father, Defendant No.1 and some of their family members- GPA Holders cum unregistered Sale Agreement/Sale Deed holders have executed Regd. Sale Deed in favour of the respective plaintiffs. Thereafter, the defendants vendor's second wife's children have raised dispute and then another Agreement dtd.09.09.1996 has been entered into between the purchasers on one side and defendants father Krishnappa, his second wife Papamma and her 80 OS No.25131/2007 children on the other side. In the said further Agreement purchasers/ plaintiffs have agreed to make additional payments to the defendants father, his second wife and her children in a sum of Rs.3,35,000/- and out of the same, Rs.30,000/- per site for 17 sites and Rs.5,000/- per site for 7 sites . In the said agreement, purchasers have agreed to pay additional amount on or before 9.11.1996 and it has further been agreed that if the vendors fail to accept the said sum and to give letter to the competent authority for transfer of katha, second party/purchasers shall be at liberty to enforce the said Agreement by filing a suit for Specific performance. It is the contention of the defendants' counsel that as per the said term of the Agreement dated 9.9.1996, plaintiffs ought to have filed a suit for specific performance. Whereas, it is plaintiffs counsels contention that subsequent to the said 81 OS No.25131/2007 Agreement the very same parties to the Agreement dtd. 9.9.1996 who are defendants father Krishanppa, his second wife Papamma and her sons Defendants 2 and 3 and daughters Bharathi and Roopa have sworn to the Affidavit dtd. 24.10.1996. In this connection, plaintiffs counsel has relied on a decision of Apex court in the case of S.Chattanatha Karayalar Vs. The Central Bank of India Ltd., reported in AIR 1965 Supreme Court 1856. In said case at para-3, it is held as under:-
" The Principle is well established that if the transaction is contained in more than one document between the same parties they must be read and interpreted together and they have the same legal effect for all purposes as if they are one document ".
The above said affidavit has been sworn to within the specified time in the Agreement dtd.9.9.1996. In the said affidavit, deponents above have categorically stated that they have sold the suit sites in question and delivered the 82 OS No.25131/2007 vacant possession of the sites and the purchasers are enjoying the same without any trouble from whomsoever and the deponents have no right over the sites and they have no objection to transfer katha in favour of the purchasers under the Sale Deed. In additional to the same, in the said affidavit they state that they have delivered rough plan pertaining to the suit schedule site for identification. When the admitted signatures of the defendant No.1 in the Sale Agreements and General Power of Attorneys are taken into consideration and the fact that the signatures of the defendants father Krishnappa in the said documents is not in dispute is taken into consideration and the admitted signatures of the defendants father and his second wife Papamma in the Sale Agreements and General Power of Attorney are compared with the signatures of the defendants father 83 OS No.25131/2007 Krishnappa in the affidavit dtd. 9.9.1996 and 24.10.1996, they clearly tally with each other. Then defendant No.1 states he does not know whether his father, his second wife and her children have signed the documents in question, defendants 2 and 3 being signatories to the said Agreements were required to enter the witness box and give evidence. Of-course, in the Agreement Ex.P.6, Papamma is shown to have affixed her signature. However, in other documents she has affixed LTM. Similarly Defendant Nos.2 and 3 have signed in Kannada Language, but in the Affidavit dtd 24.10.1996 they have affixed their signature in English language and Papamma has also affixed her LTM and not put her signature. Signature of Krishnappa in the admitted Sale Agreement and GPA tally with the signatures attributed to him in the Agreement dtd. 9.9.1996 and Affidavit dtd. 24.10.1996. Importantly, 84 OS No.25131/2007 defendant Nos.2 and 3 ought to have entered the witness box to deny the signatures attributed to them in the affidavit dtd. 24.10.1996, but same has not been done. Whereas, in the Sale Agreements and General Power of Attorneys defendant No.1, his father Krishnappa, his father's second wife papamma and her daughters Rukkamma and Rajamma have affixed their signatures/LTM as the case is.Whereas, in the Sale Agreements and General Power of Attorneys defendant No.1, his father Krishnappa, his father's second wife Papamma and her daughters Rukkamma and Rajamma have affixed their signatures/LTM as the case is. These documents cannot be doubted, because in the legal notice issued by the defendant No.1 he claims that they had been made to forcibly put the signatures by his father Krishnappa which imply that the said documents had been executed by them. On one hand, 85 OS No.25131/2007 it can be presumed that defendants father Krishnappa was acting as kartha of the family and on the other hand his only son from his first wife defendant No.1, his second wife Papamma and her adult daughter at that time Rajamma have subscribed to the said documents. Here the point is whether the possession has been handed over to the purchasers under the said documents. Since the defendants father , defendant No.1 and adult daughter of the second wife, another daughter have signed the said deeds being adult members of the family, it can be safely concluded that they have handed over the possession of the sites sold thereunder to the respective purchasers. Moreover, the children after attaining majority even it had dispute regarding sale, remedy for them was to file a suit for avoiding the said sale transactions. But, in the Partition suit in OS No.8415/1996, the purchasers have not been 86 OS No.25131/2007 made parties. Therefore, independent of the further Agreement dtd. 9.9.1996 and Affidavit dtd. 24.10.1996, in the absence of minor family members of the defendants not filing any suit against the purchasers for avoiding sale transactions, Plaintiffs title under the Sale Deeds got registered by them on the basis of the General Power of Attorney which was coupled with interest cannot be faulted with. Suit having been filed on the basis of the possession of the suit sites, above discussed material abundantly corroborate the plaintiffs case that possession of the suit sites had been delivered under the above said sale transactions.
35. In this background, submission made by the Learned counsel for defendants before the court that the suit schedule property was vacant at the time of considering I.As filed by the plaintiffs under Order 39 Rules 1 and 2 of 87 OS No.25131/2007 the CPC. shows that suit schedule sites were at least vacant at that point of time. As mentioned earlier in the written statement originally filed by the defendants, they have not taken any contention that they have got the sheds or other constructions put up in the suit schedule sites as on the date of the suit or even at the time of filing the written statement. They have not taken any such contention when they originally filed the written statement. Further, in the land bearing Survey Number- 42 measuring 1 Acre 16 guntas, vendors family has retained a number of sites for themselves. If their existed some shed in the said portion before filing the suit it cannot be held that the sheds were existing in the suit schedule sites as on the date of the suit. Therefore, submission of the Learned counsel for defendants that the land is completely vacant can be accepted at least regarding the suit schedule sites. 88
OS No.25131/2007 When the Sale Agreements show that possession of the suit property was delivered to the purchasers, burden is on the vendors to show as to when and how they have repossessed the sites and put up the constructions. By remaining silent on the said aspect while filing the written statement, defendants cannot turn around to state that there were already sheds constructed. Therefore, I am of opinion that evidence on record is sufficient to hold that the suit schedule site/sites were vacant as on the date of the suit, despite some contradictory stray statements forthcoming from some of the purchasers while deposing evidence before the court.
36. As regards identification of the suit property is concerned, plaintiffs have produced layout plan given to them by the vendors before the court. On the other hand defendants have produced another layout plan. But, the 89 OS No.25131/2007 defendants layout plan has been got prepared in accordance with the partition they have effected themselves after obtaining compromise decree in the partition suit. Same is subsequent to the sale transactions in favour of the purchases. Recitals in the Sale Agreements can be taken into consideration for collateral purpose regarding passing of consideration and also nature of the property at that time. Sale Agreements recitals show sites had been formed by the vendor's family in the land bearing Survey Number- 42 measuring 1 Acre 16 guntas. There is clear recital that they had formed sites. Therefore, it is clear that a residential layout had been formed in the agricultural land when the Sale Agreement and General Power of Attorneys were executed for consideration. In the light of the said averments, defendants layout plan based on the compromise partition 90 OS No.25131/2007 decree obtained by them cannot be accepted. It is very clear that for the purpose of suit, the defendants have created the said layout plan and they have also obtained compromise decree in collusion. Again the blue print copies of the layout plan produced by the plaintiffs bear the signatures of the defendants father Krishappa, LTM of Papamma (LTM not visible, but endorsement regarding LTM is visible) and signatures of defendants 2 and 3 and their sister by name Bharathi. Defendants 2 and 3 have not chosen to enter the witness box to deny the said signatures and whereas DW.1/Defendant NO.1 feigns ignorance about the signatures of the said parties. As already mentioned in the affidavit dtd. 24.10.1996 there is mention about handing over the signed rough plan pertaining to the schedule property for identification. There is no reason why the plan produced by the plaintiffs 91 OS No.25131/2007 should not be accepted, though it is not approved plan. For the purpose of identification of the sites purchased by the plaintiffs, said layout plan may be accepted.
37. Evidence discloses that now the entire land has been leveled and hence layout as formed is not capable of identification. However, on the basis of the layout plan and boudaries mentioned in their sale agreements and General Power of Attorneys which are produced by the plaintiffs, with the assistance of a technical person as court commissioner it would be possible to re-construct the layout and locate the respective sites of the plaintiffs in the said land. Hence, contention that the suit sites are not capable of identification cannot be accepted in the case.
38. Commissioner report shows that now the compound wall have been constructed haphazardly and 92 OS No.25131/2007 there are some sheds in the land and even after he conducted the local inspection subsequently another shed has been constructed as pointed out in the photos confronted to him and the roof of the some other shed has been changed. Commissioner report does not help in knowing in which suit site compound wall has been constructed and in which suit site sheds have been constructed. Of-course, plaintiffs have mentioned the said details in their additional affidavit. Since the boundary mark do not exist after the defendants leveled the layout, on a rough basis plaintiffs have mentioned in their affidavit about the location of the compound walls and sheds in the sites purchased by them. But one thing is clearly established that after an order of temporary injunction/status quo was granted, the defendants have put up constructions of some sheds and compound walls 93 OS No.25131/2007 in the suit schedule sites sold by them. Hence, there is clear violation of the interim order of status quo/ temporary injunction which had been granted in the case. In disobedience to the order of the court, defendants have undertaken further constructions and changed the nature of the suit schedule property. In this backdrop decision of the Apex court in the case of Delhi Development Authority Vs. Skipper Construction Co. (P) Ltd. and another, reported in (1996) 4 SCC 622, relied on by Plaintiffs counsel requires to be taken note of. At para-18 to 21 of the said decision it has been held as below:-
"18. The above principle has been applied even in the case of violation of orders of injunction issued by Civil Court. In Clarke v. Chadburn (1985 (1) All. ER 211), Sir Robert Megarry V-C observed:
"I need not cite authority for the proposition that it is of high importance that orders of the Court should be obeyed, willful disobedience to an order of the Court is punishable as a contempt of Court, and I feel no doubt that such disobedience may properly be described as being 94 OS No.25131/2007 illegal. If by such disobedience the persons enjoined claim that they have validly effected some charge in the rights and liabilities of others, I cannot see why it should be said that although they are liable to penalties for contempt of Court for doing what they did, never the less those acts were validly done. Of course, if an act is done, it is not undone merely by pointing out that it was done in breach in law. If a meeting is held in breach of an injunction, it cannot be said that the meeting has not been held. But the legal consequences of what has been done in breach of the law may plainly be very much affected by the illegality. It seems to me on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them."
19. To the same effect are the decisions of the Madras and Calcutta High Courts in Century Flour Mills Limited v. S. Suppiah & Ors.(AIR 1975 Madras 270) and Sujit Pal v. Prabir Kumar Sun (AIR) 1986 Calcutta 220). In Century Flour Mills Limited, it was held by a Full Bench of the Madras High Court that where an act is done in violation of an order of stay or injunction, it is the duty of the Court, as a policy, to set the wrong right and not allow the perpetuation of the wrong-doing. The inherent power of the Court, it was held, is not only available in such a case, but it is bound to exercise it to undo the wrong in the interest of justice. That was a case where a meeting was held contrary to an order of injunction. The Court refused to recognise that the holding of the meeting is a legal one. It put back the parties in 95 OS No.25131/2007 the same position as they stood immediately prior to the service of the interim order.
20. In Suraj Pal, a Division Bench of the Calcutta High Court has taken the same view. There, the defendant forcibly dispossessed the plaintiff in violation of the order of injunction and took possession of the property. The Court directed the restoration of possession to the plaintiff with the aid of police. The Court observed that no technicality can prevent the Court from doing justice in exercise of its inherent powers. It held that the object of Rule 2-A of Order 39 will be fulfilled only where such mandatory direction is given for restoration of possession to the aggrieved party. This was necessary, it observed, to prevent the abuse of process of law.
21. There is no doubt that this salutary rule has to be applied and given effect to by this Court, if necessary , by over-ruling any procedural or other technical objections. Article 129 is a constitutional power and when exercised in tandem with Article 142, all such objections should give way. The Court must ensure full justice between the parties before it".
39. In a number of decisions Apex court has held that when the defendants forcibly dispossess the plaintiff in violation of the order of injunction or change the nature of the property by disobeying the order of injunction, if necessary by overruling any procedural or technical 96 OS No.25131/2007 objections, courts must ensure that full justice is made between the parties. It has been held that court can invoke inherent power to remove the mischief. In the above decision, it has been further held that the courts in India are not only courts of Law, but also courts of equity. Therefore, law is very clear that when there is disobedience to the interim order of the court and violation of the interim order of injunction by the defendants, court can invoke inherent power to do justice. I am of opinion that said principle aptly apply to the facts of this case and the technicalities and procedural objections cannot be allowed to stand in light of the above position of law.
40. Now, having concluded that the suit schedule site in particular was vacant as on the date of the suit and the defendants have encroached upon same by putting up 97 OS No.25131/2007 various constructions such as haphazards compound walls and sheds, and by storing scrap materials, etc., I am of opinion that by an order of mandatory injunction defendants should be directed to remove the encroachments on the suit schedule site and hand over the vacant possession of the same to the plaintiff and also grant consequential decree of permanent injunction to restrain the defendants from interfering with plaintiff's possession of the suit schedule site. Consequently, Issue No.3 and Addl. Issue No.4 are answered in the affirmative.
41. Issue No.4:- For the reasons stated above, I proceed to pass the following :-
ORDER Suit filed by the Plaintiff is hereby decreed with costs.
The Defendants and their representatives are hereby directed by a Decree of Mandatory Injunction to remove all the encroachments on the suit schedule sites in the above suits at their cost within a period of three months and hand over vacant possession of the same to the plaintiff.
In default, it is ordered that the plaintiff shall be at liberty to execute this decree and remove the encroachments on the suit schedule site and take possession of the same through court process and recover the cost from the defendants.
Further, plaintiff is granted Decree of permanent injunction thereby restraining the defendants from interfering with plaintiff's peaceful possession and enjoyment of the suit schedule site.
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(Dictated to the Stenographer, transcript thereof, is corrected and then pronounced by me in the open court on this the 16 th day of March, 2022)
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(D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge & C/c.IV ACC & SJ.,Mayo Hall, Bengaluru ANNEXURE
1. List of witnesses examined for the Plaintiff:
P.W.1 Sri.B.V.Subbaramaiah PW.2 Ram Kumar
2. List of witnesses examined for defendants:-
D.W.1 Sri.Gopal
3. List of witnesses examined for Court Commissioner:-
C.W.1 Sri.P.Venkataramana
4. List of documents exhibited for the plaintiff:
Ex.P.1 Certified copy of the Sale Deed dtd.
13.02.1952
Ex.P.2 Agreement of Sale
Ex.P.3 General Power of Attorney dtd.
14.12.1988
Ex.P.4 Sale Deed dtd.30.03.1995
Ex.P.5 Affidavit of Krishnappa
Ex.P.6 Blue print of Layout Plan
Ex.P.7 Assessment Register Extract
Ex.P.8 Notarised copy of the Agreement dtd.
09.09.1996
Ex.P.9-10 Encumbrance Certificates
Ex.P.11-16 Tax paid receipts
Ex.P.17 Photos and CD
Ex.P.18 Certified copy of the deposition in OS
No.25124/2007
5. List of documents exhibited for defendants:
Ex.D.1 Certified copy of the Appeal in RFA No.1022/1997 Ex.D.2-3 Certified copy of the Encumbrance Certificate Ex.D.4-6 Certified copy of the R.T.C Ex.D.7 Certified copy of the compromise petition in OS No.8415/1996 Ex.D.8 Certified copy of the final decree in OS NO.8415/1996 Ex.D.9 Certified copy of the Layout Plan Ex.D10-11 Certified copy of the Encumbrance Certificates Ex.D.12-13 Certified copy of the RTC Ex.D.14-15 Tax paid receipts Ex.D.16 Certified copy of the final decree in OS No.8415/1996 Ex.D.17 Certified copy of the Encumbrance Certificate Ex.D.18 Certified copy of the Tax paid receipt Ex.D.19 Certified copy of the Affidavit of Krishnappa and Venkatappa Ex.D.20 Copy of the notice issued to P.Radhamma Ex.D.21 Certificate of posting Ex.D.22 Postal receipt Ex.D.23 Certified copy of the caveat petition Ex.D.24 Revocation of General Power of Attorney Ex.D.25-26 Postal covers Ex.D.27 Certified copy of the death certificate of Krishnappa Ex.D.28 Copy of Form 'B' register.
Ex.D.29 Copy of Tax paid receipts
Ex.D.30 Copy of Final decree in OS
NO.8415/1996
Ex.D.31 Copy of the Final decree in OS
No.8415/1996
Ex.D.32 Copies of the Record of Rights in respect of Survey Number-42/1 Ex.D.33 Copy of Katha Certificate. Dtd.
27.12.2013 Ex.D.34 Copy of Form 'B' Register Ex.D.35 Copy of Katha Registration notice dtd. 18.12.2013 Ex.D.36 Copies of Tax paid receipts Ex.D.37 Copy of the Final decree in OS NO.8415/1996 Ex.D.38 Copies of 5 RTC Ex.D.39 Copy of the Encumbrance Certificate Ex.D.40 Certified copy of Form 'A' along with IPO counter files Ex.D.41 Endorsements issued by BBMP Ex.D.42 Certified copy of the written statement in OS No.8415/1996 Ex.D.43 Certified copy of the deposition of RW.1 in OS No.8415/1996 Ex.D.44 Certified copy of the deposition of PW. 1In OS No.8415/1996
6. List of documents exhibited for Court Commissioner Ex.C.1 Certified copy of the commission warrant Ex.C.2 Certified copy of the notice Ex.C.3 Certified copy of the Memo of Instructions of plaintiff Ex.C.4 Certified copy of the Memo of instructions of defendants Ex.C.5 Certified copy of the spot mahazar drawn Ex.C.6 Certified copy of the Report Ex.C.7-8 Certified copy of the Photos Ex.C.9 Certified copy of the Video DVD Ex.C.10 Certified copy of the DVD and Photo Ex.C.11 Certified copy of the bill issued by Preethi Video Vision Ex.C.12 Certified copy of the objection filed by the plaintiff.
(D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge & C/c. IV ACC & SJ., Mayo Hall, Bengaluru (Judgment pronounced vide separate Judgment) ORDER Suit filed by the Plaintiff is hereby decreed with costs.
The Defendants and their representatives are hereby directed by a Decree of Mandatory Injunction to remove all the encroachments on the suit schedule sites in the above suits at their cost within a period of three months and hand over vacant possession of the same to the plaintiff. In default, it is ordered that the plaintiff shall be at liberty to execute this decree and remove the encroachments on the suit schedule site and take possession of the same through court process and recover the cost from the defendants.
Further, plaintiff is granted Decree of permanent injunction thereby restraining the defendants from interfering with plaintiffs peaceful possession and enjoyment of the suit schedule site.
(D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge & C/c. IV ACC & SJ., Mayo Hall, Bengaluru