Bangalore District Court
Sri N. Manjunath vs ) Smt.P.G. Meera on 29 January, 2022
KABC010109822007
IN THE COURT OF THE X ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-26)
Dated this the 29th day of January 2022
Present
Smt.SAVITRI SHIVAPUTRA KUJJI, B.Com., LL.B.(Spl.),
X Addl. City Civil & Sessions Judge,
Bangalore.
O.S.No.2494/2007
Plaintiff: Sri N. MANJUNATH
s/o Narasimhaiah
Since Dead by LRs
1(a) Smt.Manjula
w/o Late Manjunatha, N
aged about 55 years
1(b) Sri Rajesh, M
s/o Late Manjunatha, N
aged about 39 years
1(a) & 1(b) are r/at No.3/B-9
Basavaraja Galli, 1st Cross
Gejjeba Setty Galli, Cotton Pet
Bangalore- 560 053.
1(c) Smt.Ramya
d/o Late Manjunatha, N
w/o Gurucharan, K
aged about 35 years
r/at No.42, 38th Cross
East End 'A' Main Road
9th Block, Jayanagar
Bengaluru-560 069.
1(d) Smt.Divya, M
d/o Late Manjunatha, N
2 O.S.No.2494/2007
w/o Chandrashekar, K
aged about 33 years
r/at No.217, SLV Nilaya
Near BBMP Office, Kalyan Layout
Nagadevanahalli, Bengaluru-56.
(By Sri Marigowda, Adv. For LRs of plaintiff
(a) to (d))
v/s
Defendants: 1) Smt.P.G. Meera
w/o Late Sri P. Gurudev
Aged about 62 years
r/at No.64, 4th Cross
Bhadrappa layout
Nagashettihalli
Bangalore-94.
2) Sri K.V. Satheesh
s/o Sri I.K. Vigneshwara
Aged about 30 years
r/at Harappanahalli
Chirasthahalli Post
Davanagiri taluk.
3) Mr. Muneer Ahmmed Shariff
s/o Mr.Abdul Wahab Sab
Aged about 46 years
r/at No.560, Mosque Complex
New BEL Road, Devasandra
Dollars Colony, RMV 2nd Stage
Bangalore- 560094.
4) Mr.Zaheer Ahmed
s/o Basha Jan
Aged about 45 years
r/at No.605, S.S. Block
Hebbal, Bangalore 560 024
5) Mrs.Syeda Saleha Banu
w/o Abdul Ali Cheeda
Aged about 51 years
r/at No.26, 4th Cross
M.M. Layout, Kaval Byrasandra
3 O.S.No.2494/2007
Bengaluru-560 032.
(By Sri T. Sheshagiri Rao, Adv. for D.1;
D.2&3- placed exparte; D.4 by Sri
Sathyanarayana Gopal Rao, Adv. and
Sri C. Shankar Reddy, Adv. for D5)
Date of institution of the suit 26.03.2007
Nature of the suit For declaration and mandatory
injunction
Date of the commencement
of recording of evidence 23.09.2014
Date on which the judgment
Pronounced 29.01.2022
Total duration Years Months Days
14 10 03
JUDGMENT
This suit is filed by the original plaintiff against the defendants for the relief of declaration and mandatory injunction.
2. The brief facts leading to the plaintiff's case are summarized as under:-
That the subject matter of the suit is detailed in the schedule of the plaint which is said to be an immovable property bearing No.34 measuring east-west 40 feets and north-south 30 feets situate in Kavalbyrasandra. The defendant No.1 said to have purchased the schedule property from its original owner one M. Venkataramaiah 4 O.S.No.2494/2007 who was said to be the power of attorney holder of one Smt.Chinnamma under a registered sale deed dated
03.09.1981. She said to have entered into a sale agreement with the plaintiff on 05.02.1985 agreeing to sell the suit schedule property for a sum of Rs.30,000/- and received Rs.1,000/- as advance amount on the same day. The plaintiff has further stated that thereafter he purchased the schedule property from defendant No.1 under a registered sale deed dated 29.03.1985. After the purchase of the suit schedule property the plaintiff said to have got transferred the khatha in his name and paid property tax to the Grama Panchayath. He has further stated that in the year 1996 as the schedule property was included within the limits of BBMP, he said to have paid betterment charges to BBMP and got transferred the BBMP khatha in his name at khatha No.34 and also obtained khatha certificate on 12.09.2006 from BBMP and said to have paid upto date tax to BBMP. It is further stated that in the month of August 2006 a stranger alleged to have tried to put up a shed by illegally committing trespass into the suit schedule property which was resisted by the plaintiff by lodging police complaint and the police said to 5 O.S.No.2494/2007 have advised him to approach the civil court to seek necessary relief. He said to have learnt that the said stranger was one Balu and thereafter the plaintiff filed O.S.No.7361/2006 against him claiming injunction and thereafter one more complaint was lodged with Devarajeevanahalli police with respect to same property and then the police said to have informed him that the defendant No.2 is the owner of the suit site as he said to have purchased the same from defendant No.1 under a registered sale deed dated 03.07.2006 and after coming to know of the said fact the plaintiff said to have obtained the certified copy of sale deed and came to know that the defendant No.1 by suppressing the fact of earlier sale deed executed in favour of the plaintiff, had illegally sold the schedule property to defendant No.2 and therefore the plaintiff said to have withdrawn O.S.No.7361/2006 as the same was filed against the said Balu. It is alleged that the defendant No.1 had assured him at the time of selling the suit schedule property that she had marketable title over the suit schedule property and had not alienated it to anybody and based on such assurance the plaintiff said to have purchased the suit schedule property from her but 6 O.S.No.2494/2007 later on the defendants by colluding with each other in order to defraud him, had entered into second sale transaction as stated above, by fabricating the documents. It is further alleged that the defendants have been now threatening him claiming that they would commit his murder if he puts forth any claim over the schedule site. Therefore the plaintiff had to file the present suit seeking declaration of his ownership over the schedule property and to declare the disputed sale deed dated 03.07.2006 executed in favour of defendant No.2 as null and void.
3. During the pendency of the proceeding the plaintiff got amended the pleadings by incorporating additional para at para-9(a) to the effect that during the pendency of the present suit the defendant No.2 executed registered sale deed dated 02.12.2006 in favour of defendant No.3 and defendant No.3 in turn, executed registered sale deed dated 19.08.2008 in favour of defendant No.4 who were subsequently impleaded in the suit. It is further alleged that defendant Nos.2 & 3 have executed the said sale deeds knowing fully well that the present suit was pending, in order to defeat the valuable right of the plaintiff over the schedule property and 7 O.S.No.2494/2007 therefore by way of amendment the plaintiff also claimed additional reliefs of declaration that the said sale deeds dated 02.12.2006 and 19.08.2008 are also null and void and consequently claimed delivery of possession of the schedule property initially from defendant No.1 and after amendment jointly and severally from defendant Nos.1 to 4 and hence the suit.
4. Inspite of service of suit summons, the defendant Nos.2 & 3 remained exparte whereas defendant No.1 appeared through her counsel and filed her written statement. The defendant Nos.4 & 5 after their impleadment also filed their separate written statements. The defendant No.1, 4 & 5 have categorically refuted the entire claim of the plaintiff. At the very outset the defendant No.1 has denied that she had ever executed any sale agreement or sale deed dated 29.03.1985 in favour of the plaintiff as alleged. However she has admitted her earlier title over the schedule property by virtue of the sale deed dated 03.09.1981. She has denied that she had entered into any sale agreement dated 05.02.1985 to sell the suit site for Rs.30,000/- and received Rs.1,000/- as advance from the plaintiff as 8 O.S.No.2494/2007 claimed by him. On the contrary it is alleged that the said sale agreement and sale deed and the subsequent revenue records are fabricated and concocted documents. It is further denied that after purchase of the suit schedule property the plaintiff got changed the revenue entries of suit schedule property into his name as alleged. The other allegations that in the month of August 2006 a stranger tried to put up shed by trespassing into the suit schedule property are also denied. It is specifically denied by defendant No.1 that the plaintiff was ever in possession of the suit schedule property. On the other hand she has claimed that before selling the suit schedule property to defendant No.2 she was in continuous possession of the suit schedule property and the shed which is put up in the suit schedule property was there prior to her purchase of the schedule property from its owner. The defendant No.1 has admitted the fact that she had already sold the suit schedule property to defendant No.2 and handed over its possession to him and for these reasons defendant No.1 has sought for dismissal of the suit.
5. The defendant No.4 has also reiterated the contentions raised by defendant No.1 in her written 9 O.S.No.2494/2007 statement and further he has urged that defendant No.1 has sold the schedule property to him under a valid registered sale deed and accordingly the khatha has been changed into his name and he has been in lawful possession of the said property from the date of its purchase since 19.08.2008 from its previous owner the defendant No.3. The other allegations that the defendant No.1 to 4 have been attempting to interfere with the suit schedule property are also denied by this defendant. This defendant has also alleged that the plaintiff has concocted the documents to knock off the suit property. He further claims to be a bonafide purchaser of the suit property and hence, he has also sought for dismissal of the suit.
6. As regards the defence of D-5, she has also supported the contentions and defence raised by D-1 and D-4 and denied the alleged possession of the plaintiff over the suit property. She has also disputed the title of the plaintiff over this property and contended that the plaintiff has concocted the documents. It is contended by D-5 that D-1 being the absolute owner of the suit property, sold the same to D-2 for valuation consideration and put D-2 in possession of the same and D-2 in turn, sold the same to 10 O.S.No.2494/2007 D-3 under a registered sale deed and put D-3 in possession of the suit property and subsequently this D-3 sold the same to D-4 through a registered sale deed and put him in possession of the same and D-4 in turn sold the same to D-5 under a registered sale deed for valuable consideration on 21.08.2018 and since then this defendant has been in possession of the suit property by getting changed the revenue records in her name. This defendant has also pleaded that she is the bonafide purchaser of the suit property without knowledge of the pendency of any proceedings. She has further contended that the property number and other details indicated in the plaint does not tally with the property in possession of this defendant and as such the property mentioned in the plaint schedule is a fictitious property never in existence and for these reasons D-5 has also sought for dismissal of the suit.
7. On the rival contentions of the parties, the following issues and additional issue have been framed:-
ISSUES
1) Whether plaintiff proves that defendant No.1 executed sale deed 11 O.S.No.2494/2007 dated 29.03.1985 in respect of schedule property in his favour?
2) Whether the plaintiff proves that he has become owner of the schedule property by virtue of sale deed dated 29.03.1985?
3) Whether plaintiff proves that the defendant No.1 had no right to execute sale deed dt:3.7.2006 in favour of defendant No.2 and the said sale deed is null and void and not biding upon him?
4) Whether the defendant No.1 proves that the plaintiff has forged and concocted the sale deed dated 29.03.1985?
5) Whether defendant No.4 proves that he has become owner of suit property by virtue of sale deed dated 09.08.2008?
6) Whether the plaintiff is entitled for recovery of possession of suit property and for other reliefs?
7) What decree or order?
Addl. Issues
1) Whether defendant No.5 proves that he is the absolute owner of the 12 O.S.No.2494/2007 suit schedule property by virtue of sale deed executed by defendant No.4 in her favour on 02.12.2006?
2) Whether defendant No.5 proves that the suit is bad for non-joinder of necessary parties and mis-joinder of causes of action?
3) Whether defendant No.5 proves that the suit of the plaintiff is barred by limitation?
8. To substantiate the claim of the plaintiff, he has deposed before the court as PW1 and has relied on 38 documents marked from Ex.P.1 to Ex.P.32. The Forensic Expert has been examined as PW2 and through this witness six documents were marked from Ex.P33 to P38. Per contra, the first defendant has deposed before the court as DW1 and she got marked five documents from Ex.D1 to D5. The SPA holder of D-5 has been examined as DW2 and he got marked 15 documents from Ex.D6 to D20.
9. Heard arguments.
13 O.S.No.2494/2007
10. On hearing and on perusal of the relevant materials and evidence on record, my findings on the above issues are as follows:-
Issue No.1:- In the affirmative Issue No.2:- In the affirmative Issue No.3:- In the affirmative Issue No.4:- In the negative Issue No.5:- In the negative Addl. Issue No.1:- In the negative Addl. Issue No.2:- In the negative Addl. Issue No.3:- In the negative Issue No.6 :- In the affirmative Issue No.7:-As per final order, for the following:-
REASONS
11. Issue No.1, 2 and 4:- Since all these issues are interconnected, they are tried together to avoid repetition of facts. It is the specific case made out by the plaintiff that initially he had entered into sale agreement with defendant No.1 with respect to suit property under a sale agreement dtd. 05.02.1985 for a consideration amount of Rs.30,000/- and paid Rs.1,000/- as advance amount and subsequently he purchased the suit property under a registered sale deed dtd.29.03.1985 and 14 O.S.No.2494/2007 thereafter got the revenue records changed into his name. Thus, according to his claim by virtue of this sale deed he has become the absolute owner of the suit property.
12. However, it is the allegation of the plaintiff that defendant No.1 illegally sold the suit property to D-2 on 03.07.2006 despite knowing the fact that she had already sold this property to the plaintiff as per the above said deed of 1985 and thereafter D-2 sold the suit property to D-3 during the pendency of this suit on 02.12.2006 and subsequently D-3 sold the same to D-4 on 19.08.2008. It is relevant to note that presently the suit property has been in possession of defendant No.5 to whom the fourth defendant has sold the said property. Although no specific relief has been sought for by the plaintiff against D-5 even after impleading her in the suit, but admittedly D-5 has purchased the suit property during the lis.
13. Thus, according to the allegations of the plaintiff, when the first defendant had already sold the suit property to him in the year 1985, she had no legal right to subsequently alienate the same property to D-2 and therefore all the subsequent sale deeds in favour of D2 to 4 are not binding on her. Per contra, this claim of the 15 O.S.No.2494/2007 plaintiff has been categorically refuted by the contesting defendants 1, 4 and 5 whereas defendants 2 and 3 have remained exparte in the suit. At the outset defendant No.1 has denied to have executed any such sale agreement or subsequent sale deed in favour of the plaintiff and therefore, she has pleaded justification in alienating the suit property to defendant No.2. This contention of the first defendant has been reiterated by defendants 4 and 5.
14. It is specifically alleged by defendants 1, 4 and 5 that the plaintiff has concocted the documents in order to knock off the suit property. In view of this specific denial by these defendants with regard to the title and possession of the plaintiff over the suit property, heavy burden is cast on him to establish his case with cogent evidence. As stated supra, in support of his claim, he has deposed before the court as PW1 and relied on as many as 3 documents. On the contrary, defendant Nos.1 and 5 have also deposed as Dws.1 and 2 respectively and they have also relied on 17 documents. Since these defendants have disputed the very suit documents of the plaintiff, he has examined the Forensic Expert as PW2 to prove the disputed sale agreement and sale deed.
16 O.S.No.2494/2007
15. As regards Ex.P1, it is the sale deed of 1981 standing in the name of DW1 which is not in dispute. Ex.P2 and P3 are the disputed sale agreement and sale deed relied on by PW1. Further Ex.P4 is the Khata endorsement, Ex.P5 is the Encumbrance Certificate, Ex.P6 is the Khata Certificate, Ex.P7 to P23 are the tax paid receipts and Ex.P24 and P25 are again the E.Cs. All these revenue records from Ex.P4 to P25 are produced by PW1 to prove that in pursuance of Ex.P3 sale deed his name came to be mutated to all the revenue records of the suit property. These documents are also disputed by defendants 1, 4 and 5 alleging that PW1 has fabricated these documents.
16. Ex.P27 is the certified copy of sale deed of D-2 executed by DW1 on 03.07.2006 and Ex.P28 is the certified copy of the sale deed of D-3 executed by D-2 on 02.12.2006. He has also produced Ex.P29 which is the special notice issued by the concerned authority to him with respect to the tax payable on the suit property. As regards Ex.P30, it is an endorsement issued by the Panchayat authority to DW1 entering her name to the suit property. Ex.P31 is a tax paid receipt of the year 1985 17 O.S.No.2494/2007 standing in her name. Ex.P32 is one more E.C standing in the name of PW1 for the period from 01.04.1983 to 13.05.1998. As regards Ex.P33 and P34, they are the copies of LTMs of DW1 obtained under RTI Act by PW1.
17. As stated supra, PW1 got marked some more documents through PW2 from Ex.P35 to P39 with respect to the LTMs of DW1 on the disputed and admitted documents. As against these documents, DW1 has produced Ex.D1 which is the legal notice issued to her by D-4 claiming damages from her to the tune of Rs.20,00,000/- on the allegations that she had cheated him by suppressing the fact of earlier sale of suit property in favour of PW1. She has also produced the reply issued by her to this notice of D-4 which is at Ex.D2. It is relevant to note that she has also produced the copy of private complaint filed by her against PW1 which is at Ex.D3 alleging charges of cheating against him. Ex.D4 and D5 are the copies of FIR and Chargesheet with respect to the said complaint. As regards Ex.D6 produced by DW2, it is the certified copy of the sale deed of the year 1981 standing in the name of DW1. He has also produced the certified copies of sale deed of D2 executed by DW1 which 18 O.S.No.2494/2007 is at Ex.D7, the certified copy of sale deed of D-3 executed by D2 as per Ex.D8, certified copy of sale deed in favour of D-4 executed by D-3 as per Ex.D9. Ex.D10 is the E.C standing in the name of D-5. As regards Ex.D11 and D12, they are the tax paid receipts standing in her name. Further Ex.D13 is the endorsement issued by the BBMP in her name. To show her possession over the suit property, DW2 has produced certain electricity bill paid receipts which are at Ex.D14 to D17. As regards Ex.D18, it is the certified copy of the sale deed of D-5. Ex.D19 and D20 are the Khata certificate and Khata extract respectively standing in her name.
18. The learned counsel for plaintiff has vehemently argued that D.W.1 had executed the registered sale deed in his favour at an undisputed point of time on 29.03.1985 as per Ex.P3 after having executed the sale agreement dated 05.02.1985 as per Ex.P.2. Ex.P.2 is an unregistered sale agreement, but Ex.P.3 is the registered sale deed said to have been executed by D.W.1 in his favour. It is his further claim that in pursuance of this sale deed his name came to be mutated to all the revenue records of the schedule property which is evident 19 O.S.No.2494/2007 from Ex.P.4 endorsement issued by panchayath authority in his name, Ex.P.5 property register extract, Ex.P.6 khatha certificate standing in his name. It is further pertinent to note that he has also produced a number of tax paid receipts which are marked from Ex.P.7 to Ex.P.31 which show that he had paid tax pertaining to suit schedule property since 1990 to 2014.
19. Even Ex.P.24 encumbrance certificate discloses the name of PW1 for having purchased the schedule property from D.W.1 in the year 1985. All these revenue records have remained undisputed by D.W.1 till this date. Under such circumstances how far the allegation of the defendants particularly that of D.W.1 that P.W.1 has concocted by all these documents, could be sustained, is the material aspect which requires consideration. It is relevant to note that except alleging that P.W.1 has concocted and created Ex.P.2 agreement and Ex.P.3 sale deed of the revenue records, D.W.1 has not substantiated as to how and under what circumstances these documents were fabricated or created by P.W.1.
20. It is further significant to note that P.W.1 himself has produced the original sale deed standing in 20 O.S.No.2494/2007 the name of D.W.1 at Ex.P.1. This sale deed is an undisputed document which is also relied on by the defendants. Under this sale deed, D.W.1 had purchased the suit schedule property on 03.09.1981 from the original owner one Chinnappa through his GPA holder M. Venkataramaiah. Again Ex.P.30 is a relevant document which is an endorsement issued by the panchayath authorities in the name of D.W.1 certifying about the mutation of khatha in her name pertaining to the suit schedule property.
21. As rightly argued by the learned counsel for plaintiff, both the above material documents Ex.P.1 & P.30 have been produced from the custody of P.W.1. Under such circumstances the burden is on her to prove as to how P.W.1 came into possession of her documents. It is also not her allegation that he had stolen these documents nor it is her allegation that P.W.1 by misrepresenting her fraudulently obtained these documents from her possession. No satisfactory explanation is offered by D.W.1 in this regard.
22. Again Ex.P.31 tax paid receipt produced by P.W.1 dated 20.03.1985 also assumes relevance in this 21 O.S.No.2494/2007 regard which is once again standing in the name of DW1. It would be equally relevant to refer her cross-examination in this regard. When it was suggested to her that Ex.P.30 & P.31 tax paid receipts show the tax paid by her, she has admitted the said suggestion. She has also admitted in her cross-examination that Ex.P.1 is the original document. When she has admitted that Ex.P.1 which is the original document of title has been produced before the court by P.W.1, the burden is on her to prove as to how this original document came into possession of P.W.1.
23. It is relevant to note that it has been the definite allegation of DW1 that P.W.1 has concocted his sale deed and all the revenue records, then a reasonable suspicion certainly arises as to how he could concoct his document of title when already the parent deed Ex.P.1 pertaining to D.W.1 was in his possession. It is further significant to note that in her further cross-examination dated 13.01.2016 D.W.1 has stated that defendant No.2 at the time of purchase of property had asked her to show the previous documents of title and that she had assured him of having after searching in her house but she could not trace out those documents in her house and even after 22 O.S.No.2494/2007 registration of sale deed in favour of defendant No.2 she did not show the original document of title to him. It would be relevant to refer this material statement of her which runs on page-8 & 9 as under:-
"Sathish has asked me to show the previous documents of our title. I stated that, I kept documents in somewhere in our house, after searching the same, I will show to you. Thereafter I have searched for document but I could not get it. Even after registration also I have not shown the said document to Sathish. Thereafter I received the information through our lawyer in the year 2014, the said document is produced before the court by one Manjunath. It is true to suggest that since from 2006 to 2014, I am not aware of the said document.
I have not given any complaint against Manjunath. I have not given Ex.P30 and Ex.P31 endorsement and tax paid receipt to Manjunath - plaintiff. Ex.P30 and Ex.P31 are original documents".
24. The above statement of D.W.1 would clearly indicate that because she had already handed over the original document of title Ex.P.1 to P.W.1 at the time of execution of Ex.P.3, she could not show the same to her subsequent purchaser defendant No.2. If really P.W.1 had 23 O.S.No.2494/2007 concocted such document of title in his favour certainly she would have taken appropriate legal action against him. As per her own admission even after coming to know about the fact that P.W.1 has produced Ex.P.1 before this court in the year 2014, she did not lodge any complaint against him. This conduct and in-action on the part of the D.W.1 would clearly falsify her defence that P.W.1 has concocted his document of title.
25. One more material aspect which invites consideration at this juncture is that as rightly pointed out by the learned counsel for plaintiff, Ex.P.3 sale deed of P.W.1 contains some material details which corroborate the original title deed of D.W.1 Ex.P.1. It is relevant to note that there is recital in para-2 of Ex.P.3 on the first page with regard to details of the earlier document of title Ex.P.1 pertaining to D.W.1. The said particulars are recited as under:-
".......... ಸದರೀ ಕ್ರಯಪತ್ರವು ಇದೇ ಬೆಂಗಳೂರು ಉತ್ತರ ತಾಲ್ಲೂಕು ಸಬ್ ರಿಜಿಸ್ಟ್ರಾರ್ ರವರ ಆಫೀಸಿನಲ್ಲಿ 1 ನೇ ಬುಕ್ಕು , 3514 ನೇ ವಾಲ್ಯೂಂ , 140 ರಿಂದ 144 ನೇ ಪುಟಗಳಲ್ಲಿ , 3943 ನೇ ನಂಬರಾಗಿ ರಿಜಿಸ್ಟ್ರಾಗಿರುವ ಕ್ರಯಪತ್ರದ ಮೂಲಕ ಬಂದು.......".24 O.S.No.2494/2007
26. The above particulars are pertaining to Ex.P.1 original sale deed of D.W.1. If we peruse page-2 of Ex.P.1 in the bottom the same particulars are found such as register No.3943, page Nos.140 to 144 and volume No.3514. Under such circumstances when these material particulars pertaining to the document of title of D.W.1 are also reflected in Ex.P.3 sale deed of P.W.1, it cannot be said that there was any such occasion or possibility for P.W.1 to create Ex.P.3.
27. However much has been argued by the learned counsel appearing for D.W.1 with regard to variance in the signature of D.W.1 found in Ex.P.3. It is contended by her that in Ex.P.3 her signature is shown to have been put in Kannada language whereas she is in the habit of signing in English language. In this regard the learned counsel for defendant has also invited my attention to her vakalath as well as her written statement wherein she has signed in English language. No doubt in these documents as well as in her pleadings we find the signature of D.W1 in two different languages, but P.W.1 has stated that she used to sign in both languages. It is in this connection the plaintiff 25 O.S.No.2494/2007 has relied on the Forensic Expert's report which is marked at Ex.P.37.
28. The expert who issued Ex.P37 has also been examined before the court as P.W.2 and he has been subjected to a lengthy cross-examination by the learned counsel for defendant. No doubt his report was not called for through court or by the order of this court since P.W.1 had privately obtained report from him, but it is relevant to note that this witness has stated that on 06.02.2016 P.W.1 approached him for seeking opinion about the LTM appearing on some documents which are at Ex.P.33 & P.34 and accordingly he compared the LTMs found on the disputed document Ex.P.33 and the admitted document Ex.P.34 and has opined that these LTMs are pertaining to the same person.
29. Ex.P.33 & P.34 are Form No.14 which contain the signatures of D.W.1 both in Kannada as well as in English language along with her LTMs. According to P.W.2 the LTM found on Ex.P.33 on which D.W.1 has signed in Kannada language is resembling with the LTM found on Ex.P.34 on which she has signed in English language. No doubt the report of an expert is not a conclusive piece of 26 O.S.No.2494/2007 evidence since it is a mere opinion evidence, but in order to appreciate the other available evidence, such opinion would also assist this court to come to a just conclusion.
30. The main objection which was raised by the counsel for defendant No.1 at the time of marking of Ex.P.33 & P.34 was that since these are the xerox copies the same cannot be marked and by considering his objection my predecessor-in-office marked those documents subject to proof and relevance. Ultimately P.W.2 has deposed that according to his opinion the LTMs marked in Ex.P.33 & P.34 are identical to each other. PW2 was cross-examined by the counsel for defendant No.1 and he has admitted in his cross-examination that there was no court order for obtaining his opinion on these documents and he was also cross-examined with regard to his educational qualification.
31. The learned counsel for defendant No.1 has also cross-examined PW2 with regard to the technical process adopted by him for comparing the LTMs on Ex.P.33 & P.34 and for all these suggestions this witness has offered explanation. He has further denied the suggestion of the defence counsel that the finger prints 27 O.S.No.2494/2007 appearing on Ex.P.33 & P.34 are not clear as these documents are zerox copies and he has also denied the suggestion that he had adopted an outdated method without using advanced technology for examination of documents and and ultimately he gave a false report. All these suggestions have been categorically denied by P.W.2. It is relevant to note that even though Ex.P.37 report of P.W.2 cannot be considered as the conclusive piece of evidence as discussed supra, but nevertheless what was sought for by P.W.1 before P.W.2 was to compare the LTMs found on Ex.P.33 and P.34 and to that extent the evidence of this witness could be relied on.
32. The burden is on D.W.1 to show as to how the original documents have gone into the custody of P.W.1 even after D.W.1 alienating the schedule property to the defendant No.2. On the contrary from her own evidence it is now established that even after coming to know about the fact that Ex.P.1 was in the possession of P.W.1 she has not taken any action against him in this regard which itself clearly indicates that she had voluntarily handed over Ex.P.1 and the other revenue records to P.W.1 at an 28 O.S.No.2494/2007 undisputed point of time while executing Ex.P.3- sale deed in the year 1985.
33. It is further significant to note that though much has been alleged by D.W.1 that P.W.1 has concocted or fabricated documents to create his document of title though she had never agreed nor sold the suit schedule property to him, but as discussed above except bare allegation in this regard that he has concocted such documents, she has not pleaded nor proved as to how he had played fraud on her and how she was misrepresented by her etc. Before making such allegations of concoction or fraud etc., there must be sufficient pleadings and proof in this regard. In this regard it would be relevant to refer the authority of Hon'ble Supreme Court cited by the learned counsel for defence reported in Ranganayakamma v/s K.S. Prakash in AIR 2005 Kar 426 wherein the Hon'ble High Court while dealing with the pleas of undue influence, fraud, etc., held as under:-
" Under Order VI R.4 and O.6 R.2 CPC mere use of general words such as "fraud" or "collusion" are insufficient and O.VI requires pleading with specificity, particularity and precision. Plaint 29 O.S.No.2494/2007 averments do not set out with reasonable precision, particulars so as to constitute allegations of fraud and misrepresentation by defendants- Finding of trial Court that plaintiffs voluntarily executed deed of partition, powers of attorney was proper and hence cannot be interfered with".
It is further held in para-54 of the above judgment that in the absence of pleadings and substantial legal evidence to establish fraud, it is well neigh impossible for this Court to conclude that the sisters did not on their own volition and without consent Ex.D.6 & D.8.
34. In the above cited decision the plaintiff therein was held to have not proved the pleas of fraud, undue influence etc., which is not the circumstance in the present case, because though the defendants' counsel has cited this decision to deny the claim of the plaintiff that defendant No.1 along with other defendants fraudulently executed subsequent sale deeds with the active collusion with each other, but it is relevant to note that similar allegations are also made by these defendants in their written statement to the effect that the plaintiff has 30 O.S.No.2494/2007 created Ex.P.2 & P.3 and the subsequent revenue records to claim the suit schedule property.
35. It is to be noted that when it has been the definite counter allegation and defence set out by D.W1 and other defendants that PW1 has fraudulently got created Ex.P2 and P3, the principles laid down in the above cited decision would equally apply even to their defence, because as discussed supra except alleging that P.W.1 has created these documents, nowhere in the entire written statement of either D.W.1 or defendant No.4 and defendant No.5 we find any specific pleas regarding fraud, alleged misrepresentation by P.W.1 in getting executed Ex.P.2 & P.3 deeds. Therefore in the given facts and circumstances of the case the above decision relied on by the defendants' counsel would rather apply to the claim of the plaintiff than their defence.
36. However, the learned defence counsel has tried to demonstrate before the court that mere production of Ex.P3 is not sufficient, but the contents of such disputed document are to be proved by acceptable evidence. In support of his arguments, he has also sought to place his reliance on a couple of decisions reported in H. Siddiqui 31 O.S.No.2494/2007 (dead) by Lrs, v/s Ramalingam in (2011) 4 SCC 240 and Smt. Devi and others v/s Prabhakar and another in ILR 2004 KR 1112. In these decisions it has been well settled that mere admission of a document in evidence does not amount its proof but documentary evidence is required to be proved in accordance with law.
37. By relying on the above cited decisions it has been vehemently urged that the interested version of PW1 in support of Ex.P3 cannot be relied on in the absence of evidence of any other witness to prove this document. How far the ratio laid down in these decisions and the arguments canvassed by the defence counsel could be sustained, is to be seen. In the case involved in the first decision cited above in H. Siddiqui 's case the secondary evidence of the disputed GPA was sought to be proved before the court and in that context of the matter it was held that the secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided in Sec. 65 of the Evidence Act. This is not the circumstance involved in the present case since PW1 herein has produced the original Ex.P3 which 32 O.S.No.2494/2007 has come into existence much prior to the disputed sale deeds of the defendants.
38. The case involved in the second decision cited above in Smt. Devi's case, the dispute was between an employer and employee under the Workman's Compensation Act and the relationship of employer and employee between the parties was under dispute and in that context of the matter, it was held that the employer therein without producing any document in support of his defence regarding sub-contract, is not entitled to sustain his defence. Again this is not the circumstance involved in the case on hand. Consequently the principles laid down in both these decisions cannot be extended to the facts on hand since the facts involved in those decisions are entirely different than the facts of the present case.
39. One more material aspect which invites consideration at this juncture is that as discussed above in her written statement D.W.1 has though alleged that P.W.1 by creating the fraudulent documents with respect to suit schedule property, has filed this present suit by using the forged documents etc., as could be borne out in para-4 of her written statement, but it has not been 33 O.S.No.2494/2007 substantiated as to how P.W.1 had forged the documents when as per her own admission in her cross-examination as stated supra she was unable to offer explanation as to how her document of title Ex.P.1 and the other original tax paid receipts had gone into the custody of P.W.1. Furthermore it is also not her allegation that at some point of time P.W.1 by misrepresenting her, obtained these documents from her to create Ex.P.2 or Ex.P.3. Therefore as rightly pointed out by the learned counsel for plaintiff, this defence of D.W.1 which is subsequently reiterated by defendant No.4 & 5 that P.W.1 has fraudulently created Ex.P.2 & 3, cannot be sustained.
40. It is further relevant to note that during the course of cross-examination of P.W.1, a desperate attempt has been made on behalf of D.W.1 by suggesting to him that his father had secured Ex.P.1 from the husband of D.W.1 for a different purpose and hence Ex.P.1 was delivered earlier to the date of execution of sale deed. It is pertinent to note that for the first time this new defence is sought to be raised during the course of cross examination of P.W.1 which is neither pleaded in the written statement of D.W.1 nor it is so alleged by her in her oral evidence. 34 O.S.No.2494/2007
41. It is not the defence of DW1 that since her husband was acquainted with the father of P.W.1, plaintiff's father secured Ex.P.1 from her husband and later on it was misused by P.W.1 to create Ex.P.3- sale deed. Under such circumstances when there are no such pleadings, this suggestion put to P.W.1 by the counsel cannot be sustained. Even otherwise P.W.1 has categorically denied these suggestions. Moreover Ex.P.3 as stated above, has come into existence in the year 1985 and admittedly D.W.1 has sold the schedule property subsequently in favour of defendant No.2 in the year 2006. Under such circumstances nothing would have prevented her from calling upon P.W.1 to hand over Ex.P.1 to her. On the contrary for about more than 21 years she did not take any action against him nor has made any prudent efforts to take back Ex.P.1 from P.W.1 if really she had not sold the schedule property to him under Ex.P.3- sale deed. This is one such circumstance which would nullify her defence that P.W.1 has misused Ex.P.1 or that he has created Ex.P.3 by using Ex.P.1 document.
35 O.S.No.2494/2007
42. Though it is pointed out by the defence counsel that P.W.1 could not even give trustworthy evidence as he has stated that he knew D.W.1 for the first time at the time of execution of Ex.P.3 and at another breath he stated that he knew her even prior to the execution of Ex.P.2 sale agreement. By pointing out this discrepancy in the statement of P.W.1, the learned defence counsel tried to nullify his claim. No doubt there is some discrepancy in the statement of P.W.1 in this regard, but this variance or contradiction as pointed out by the defence counsel has not become fatal to the case of P.W.1 for the simple reason that even as per the own suggestion made by the defence counsel to P.W.1 as stated above, the father of P.W.1 and the husband of D.W.1 were acquainted with each other. Hence, by this suggestion itself it is admitted that both the families were known to each other. Therefore merely because P.W.1 has given some inconsistent statements, that would not be of much relevance to non-suit him. Consequently it is to be held that D.W.1 at an undisputed point of time has executed Ex.P.3 sale deed thereby alienating the suit schedule property in his name.
36 O.S.No.2494/2007
43. The fact of alienation of suit property under Ex.P3 is further fortified by the subsequent revenue entries which have been effected in the name of PW1 since 1985 till 2011. If really after 1998 till 2006 D.W.1 was in possession and enjoyment of the suit schedule property as the owner as contended by her, certainly she would have produced the subsequent tax paid receipts or other revenue records standing in her name from 1985 till 2006. This aspect once again clearly probablises the claim of P.W.1 that in the year 1985 itself D.W.1 had parted with the suit schedule property by selling the same to P.W.1.
44. One more material aspect which is to be noted here is that defendant No.4 had issued a legal notice to D.W.1 on 25.06.2012 as per Ex.D.1 which was produced by D.W.1 herself. If we peruse the contents of this notice it is clearly revealed that even he had learnt about the earlier sale agreement and registered sale deed executed by her in favour of P.W.1 in the year 1985. In para-4 of this legal notice defendant No.4 has stated that in the month of February 2010 he learnt that one Manjunath i.e., present P.W.1 had filed the present suit against D.W.1 for 37 O.S.No.2494/2007 declaration and possession and thereafter defendant No.4 was impleaded and later on defendant No.4 came to know from the court records that D.W.1 had entered into an agreement of sale dated 05.02.1985 with P.W.1 and thereafter executed the registered sale deed on 29.03.1985 as per Ex.P.3.
45. Again in para-5 of Ex.D.1 defendant No.4 has stated that pursuant to the said sale deed in favour of PW1, the khatha of the schedule property was also changed in his name and therefore from these acts it is stated that D.W.1 after transferring the property in favour of P.W.1 in the year 1985 once again sold the same property to defendant No.2 on 03.07.2006 and thereby she has cheated the vendor of defendant No.4. By making such serious allegations defendant No.4 in the very same legal notice had stated in para-6 that D.W.1 intentionally was avoiding her appearance before the court by colluding with P.W.1 and thereby the defendant No.4 in para-7 of Ex.D.1 notice has warned her that he would take necessary criminal action against her for the offences U/Ss 120-B, 417, 420, 465 and 468 r/w/s 34 of IPC and had consequently claimed damages from her to the tune of 38 O.S.No.2494/2007 Rs.20,00,000/-. This document is produced by D.W.1 herself. Therefore she cannot retract from its contents.
46. In response to Ex.D.1 legal notice, D.W.1 had issued reply to defendant No.4 as per Ex.D.2 thereby denying his allegations. It is significant to note that on page-2 of Ex.D.2 reply in para-2 she has stated that she is unaware of the fact that after purchasing the suit schedule property from her, defendant No.2 sold the same in favour of defendant No.3 and thereafter khatha was changed in the name of defendant No.3. Again in para-3 she has once again pleaded ignorance as to whether defendant No.4 purchased schedule property from defendant No.3 and stated that after selling the suit schedule property D.W.1 never visited the said property.
47. It is further significant to note that in para-4 of Ex.D2, D.W.1 has gone to the extent of stating that filing of the present suit by P.W.1 and impleading defendant No.4 is not within her knowledge and had sought for details of the said suit. This reply give by P.W.1 is patently false for the reason that as per the order sheet of the present suit it is revealed that the present defendant No.1 & 2 were placed exparte as per the order dated 39 O.S.No.2494/2007 04.12.2009 on which date the service of suit summons on the present D.W.1 & 2 issued by affixure were held duly served. It is further material to note that after remaining exparte in the case, defendant No.1 put her appearance through her counsel on 05.10.2012. Therefore what could be gathered from the conduct of D.W.1 is that she was very much aware of filing of the present suit by P.W.1 in the year 2007 itself, but inspite of it she has conveniently pleaded her ignorance in Ex.D.2 reply notice issued to defendant No.4.
48. Though in her further reply on page-3 of Ex.D.2 in para-2 D.W.1 has denied the fact of her executing Ex.P.2 sale agreement and Ex.P.3 sale deed in favour of P.W.1, but nowhere she has stated that P.W.1 had either misrepresented her or fraudulently taken Ex.P.1 document of title from her possession. Thus one material aspect which invites attention at this juncture is that even as per Ex.D.2 reply notice issued by D.W.1 she came to know about the alleged creation of Ex.P.3 sale deed by P.W.1 in the year 2012 itself when it was brought to her notice by defendant No.4. If really it was her grievance that P.W.1 by misusing Ex.P.1 had fraudulently created Ex.P.3 sale 40 O.S.No.2494/2007 deed in his favour nothing would have prevented from taking appropriate legal action against him in the year 2012 itself. No attempt is made by her even to issue any notice to P.W.1 calling upon him to hand over her original title deed Ex.P.1 or to deny the alleged execution of Ex.P.2 or P.3 in his favour as claimed by him. All these aspects clearly indicate that she was well aware and conscious about the fact that in the year 1985 itself she had sold the suit schedule property to P.W.1 under Ex.P.3.
49. The very fact that since 1985 till the date DW1 has not attempted to challenge Ex.P.3 which is the registered sale deed, itself is sufficient to hold that a valid title was transferred in his name in the year 1985 itself under Ex.P.3. Therefore undoubtedly it could be held that P.W.1 had become a lawful owner of the suit schedule property by virtue of Ex.P.3. Hence all these issues are accordingly answered thereby answering issue Nos.1 & 2 in his favour in the affirmative and issue No.4 against defendant No.1 in the negative.
50. Issue No.3:- P.W.1 has alleged that D.W.1 after having sold the suit schedule property to him as per Ex.P.3 had illegally sold the same property on 03.07.2006 41 O.S.No.2494/2007 in favour of defendant No.2 as per Ex.P.27 by suppressing the material fact regarding the earlier execution of sale deed in his favour. It is needless to discuss that in view of findings rendered on issue Nos.1 & 2 it is now proved that under Ex.P.3 P.W.1 had legally and validly purchased the suit schedule property and subsequently he had even got changed all the revenue records in his name which is also evident from the various revenue documents produced by him. After lapse of more than 21 years D.W.1 attempted to once again transfer the very same property in favour of defendant No.2.
51. As discussed supra, till this date the original title deed of D.W.1 at Ex.P.1 is with him and no attempt is made either by D.W.1 or by defendant No.2 at the time of execution of Ex.P.27 to secure Ex.P.1 document. To prove that defendant No.2 was a bonafide purchaser for valuable consideration, he is not before the court since he has not appeared in order to contest the matter and has remained exparte. The sole contesting defendants are D.W.1, defendant No.4 and defendant No.5. Admittedly now the suit schedule property is not of the ownership or possession of D.W.1 whereas defendant Nos.4 & 5 claim 42 O.S.No.2494/2007 to be the subsequent purchasers. It is relevant to note that Ex.P1 original title deed of DW1 was not with her as on the date of execution of Ex.P27.
52. Even according to the claim of the plaintiff the suit schedule property has been now transferred in the name of defendant No.5 from defendant No.4 and therefore defendant No.4 is also not having any right, title or interest over the schedule property. Under such circumstances when defendant No.4 & 5 claim their right over the schedule property through defendant No.2 to whom D.W.1 has sold the schedule property in the year 2006, then the participation of defendant No.2 would have certainly assumed relevance to ascertain as to whether he had bonafide verified all the records pertaining to the suit schedule property before purchasing the same from D.W.1. No attempt is made either by D.W.1 or by defendant Nos.4 & 5 to summon and examine defendant No.2 to substantiate this aspect.
53. Therefore defendant Nos.4 & 5 being the subsequent purchasers cannot step into the shoes of either defendant No.2 or D.W.1 since now it is proved from the evidence on record that D.W.1 herself had no 43 O.S.No.2494/2007 valid or salable title over the suit schedule property as on the date of execution of Ex.P.27 sale deed in favour of defendant No.2. Therefore at any rate it cannot be said that either defendant No.2 was the bonafide purchaser or defendant Nos.2 to 5 derived any legal and valid title under their respective sale deeds. Hence this issue will have to be answered in favour of the plaintiff in the affirmative.
54. Issue No.5:- As discussed supra, defendant No.4 in his written statement has also claimed that he had legally and validly purchased the suit schedule property from defendant No.3. It is contended by defendant No.4 that as pleaded by D.W.1 she had never sold nor agreed to sell the suit schedule property to P.W.1 but that he had fraudulently concocted those documents. It is relevant to note that defendant No.4 being a subsequent purchaser has absolutely no right to either question the validity of Ex.P.3-sale deed of P.W.1 or to plead anything about the earlier transaction entered into between P.W.1 and D.W.1, because even according to him he had become the owner of the suit schedule property in the year 2008. Therefore as rightly argued by the plaintiff's counsel, defendant No.4 44 O.S.No.2494/2007 is not a competent person to say anything about the transaction which had taken place prior to 2008.
55. The sale deed of defendant No.4 is produced before the court as per Ex.D.9 which shows that on 19.08.2008 he purchased the schedule property from defendant No.3. It is relevant to note that except filing his written statement in the case, defendant No.4 has not stepped into the witness box to substantiate his contention raised in his pleadings. On the contrary it is only defendant No.1 and the SPA holder of defendant No.5 who have deposed before the court as D.W.1 & 2 respectively. Therefore any amount of pleadings by defendant No.4 without there being any supporting oral evidence, cannot be accepted which is the well settled position of law.
56. Even otherwise it is to be noted that now P.W.1 could prove before the court with cogent evidence that in the year 1985 itself he had purchased the schedule property from D.W.1 as per Ex.P.8 after taking into possession all her earlier title deeds. This claim of P.W.1 could not be controverted by D.W.1 with acceptable evidence. Under such circumstances when D.W.1 herself 45 O.S.No.2494/2007 was not proved to be having any valid salable right to sell the suit schedule property for the second time in favour of defendant No.2 then there is no question of holding defendant No.4 as the lawful owner of the suit schedule property since all the subsequent purchasers such as defendant Nos.2 & 3 had not derived any lawful title under their sale deeds from D.W.1. and accordingly this issue will have to be answered against him in the negative.
57. Additional issue No.1:- As discussed supra, at the first instance though D.W.1 had sold the suit schedule property to P.W.1 as per Ex.P.3, but now it is proved that thereafter by suppressing the earlier sale transaction with P.W.1, she had ventured upon to once again sell the same property as per Ex.P.27 in favour of defendant No.2 who is not before the court to prove as to whether he was the bonafide purchaser of this property in the year 2006. Subsequently as per Ex.D.28 once again defendant No.2 sold the very same property in favour of defendant No.3 on 02.12.2006. Thereafter defendant No.3 once again sold the suit schedule property in favour of defendant No.4 on 19.08.2008 and defendant No.4 in 46 O.S.No.2494/2007 turn, sold the suit schedule property in favour of defendant No.5 on 21.08.2018 as per Ex.D.18.
58. To substantiate the claim of defendant No.5, her SPA holder has deposed before the court as D.W.2. How far his testimony could be relied on as trustworthy of credence, is the material aspect which requires consideration. It is significant to note that this witness in his cross-examination dated 09.11.2021 has stated that he has neither seen D.W.1 nor seen the defendant No.4. When it is the specific defence of defendant No.5 that she had purchased the schedule property as per Ex.D.18 from defendant No.4 and when D.W.2 has clearly stated that he has never seen defendant No.4, then certainly defendant No.5 ought to have stepped into the witness box to say whether she had bonafide purchased the suit schedule property without the knowledge of any earlier transaction with respect to the suit schedule property.
59. Merely because a registered sale deed is executed in favour of defendant No.5 that itself is not sufficient to consider the material fact whether she is the bonafide purchaser of the suit schedule property or not. It is further significant to note that admittedly all the sale 47 O.S.No.2494/2007 deeds in favour of defendant Nos.4 & 5 have come into existence during the pendency of this suit. Under such circumstances heavy burden was cast on defendant No.5 to prove as to whether she had no knowledge of the pendency of the present suit or whether she is bonafide purchaser for valuable consideration.
60. D.W.2 in his further cross-examination has clearly admitted that before purchasing the suit schedule property from defendant No.4 he had not obtained any encumbrance certificate from the Sub-Registrar's office nor defendant No.4 had informed him about the pendency of the suit. On the contrary he has stated that after receiving notice from this court he made enquiry and came to know about the ownership of defendant No.1 over the suit schedule property and about the pendency of this case. Under such circumstances as rightly argued by the learned counsel for plaintiff, neither defendant No.4 nor defendant No.5 could be termed as the bonafide purchasers of the suit schedule property.
61. It is a well settled position of law that any sale transaction effected during the lis is hit by the provisions of Section 52 of the Transfer of Property Act. In this 48 O.S.No.2494/2007 regard it would be relevant to refer the citation relied on by the plaintiff's counsel reported in Sunder Lal Bhatia v/s Charan Lal Bhatia and others in AIR 2010 Jammu and Kashmir 16 wherein this aspect has been clearly dealt with as under:
"Transfer of Property Act (4 of 1882), S.52- Principles of lis pendens- S.52 forbids to transfer right in third party during pendency of litigation.
Section 52 of the Act deals with the principle of lis pendens. It protects the right of suitor to any immovable property, which is subject matter of issue in the Court. It forwarns the creation of third party's interest in the said property, which has the effect of defeating the right of a person in whose favour decree or order is passed by Court of competent jurisdiction. It, in essence, forbids to transfer right in third party during the pendency of litigation. If any decree or order is passed in such proceedings, any transfer of right during interregnum shall be determined as non est in the eyes of law. The import of Section 52 of the Act is that if there is any transfer of right in immovable property during the pendency of the suit, such transfer will be non est in the eyes of law. 49 O.S.No.2494/2007 Even if there has been transfer of right in immovable property in favour of third party, that will be treated as non est in the eyes of law, in case the plaintiff succeeds in obtaining decree in his favour".
62. The principles laid down in the above cited decision could aptly be extended to the facts on hand for simple reason that even in this case all the defendants were well aware of the material fact of pendency of the present suit in the year 2008. Despite knowing the said fact defendant No.3 at the first instance alienated the schedule property in favour of defendant No.4 and defendant No.4 in turn alienated the same in favour of defendant No.5 during the year 2008. Under such circumstances when it is now proved that P.W.1 had an earlier document of title in his favour pertaining to suit schedule property in the year 1985 itself and when the defendants have utterly failed to prove that he had concocted the said sale deed, the only inference which has to be drawn is that all the subsequent sale transactions held inter-se the defendants are not valid or legal so as to confer any valid title on them. Hence this issue will have to be answered against defendant No.5 in the negative. 50 O.S.No.2494/2007
63. Additional issue No.2:- The defendant No.5 has also taken up a contention to non-suit the plaintiff that the suit of the plaintiff is bad for non-joinder of necessary parties. In para-11 of her written statement she has contended that the suit is bad for non-joinder of proper and necessary parties and also for mis-joinder of alleged cause of action. The lerned defence counsel in this regard has pointed out that as per the plaintiff's allegations, he cause of action arose to file this suit when a stranger by name Balu interfered with his possession over the suit property and he is not made as party to this suit.
64. It is material to note that PW1 himself has stated that in the year 2006 the said Balu trespassed into the suit property and put up the offending shed which PW1 removed and thereafter he filed suit against him for injunction which he subsequently withdrew after coming to know of the sale deed executed by DW1 in favour of defendant No.2. Moreover, it is not the case of any of the parties to this this suit that the said Balu is having any sort of right over the suit property. Under such circumstances, the contention of the defendants that the 51 O.S.No.2494/2007 suit is bad for non-impleading the said person, cannot be sustained. It is further to be noted that though initially the plaintiff filed this suit arraying defendant No.1 to 3 only, but during pendency of the proceeding since defendant No.4 alienated the suit schedule property in favour of defendant No.5, he arrayed both defendant No.4 & 5 as necessary parties to the proceeding. Under such circumstances it cannot be said that his suit is bad for either mis-joinder or non-joinder of necessary parties. Therefore this issue will have to be answered against the defendant No.5 in the negative.
65. Additional issue No.3:- The defendant No.5 has also questioned the maintainability of the suit on the ground that it is barred by limitation. In para-14 of her written statement again a bare contention is raised in this regard stating that the suit is barred by limitation and hence it is liable to be dismissed. It has not been substantiated how and for what reason the suit will have to be dismissed on the ground of limitation. Moreover there is also no acceptable evidence placed before the court by the defendant No.5 in this regard. As stated above, defendant No.5 herself has abstained from 52 O.S.No.2494/2007 entering into the witness box and her SPA holder D.W.2 is now proved to be totally unaware of the material disputed issues involved in the case. Therefore mere raising of a bare contention regarding limitation is not sufficient to dismiss the suit unless and until it is substantiated with acceptable evidence. Hence, even this contention raised by defendant No.5 holds no substance and consequently it is also answered against her in the negative.
66. Issue No.6:- In view of the findings rendered on all the preceding issues now it is proved that the P.W.1 had legally and validly purchased the suit schedule property from D.W.1 as per Ex.P.3. On the contrary D.W.1 has utterly failed to prove as to how P.W.1 is dis-entitled to seek the suit reliefs and how he has concocted his document of title. Now the material aspect which remains for consideration is as to whether the plaintiff is entitled to seek the vacant possession of the suit schedule property from the defendant No.1 to 5 or from defendant No.1, because admittedly the suit property is in the possession of defendant No.5.
67. As discussed supra, it is his specific allegation that since defendant No.1 had no legal right to alienate 53 O.S.No.2494/2007 the suit schedule property for the second time in favour of defendant No.2 and consequently defendant No.2 did not acquire any lawful right over the suit schedule property, all the subsequent sale transactions in favour of defendant No.2 to 5 are null and void and would not bind the legal right of the plaintiff over this property. However it is alleged that on the strength of the disputed sale deeds now his right has been denied by all the defendants.
68. As discussed above, it is alleged that on 24.08.2006 a stranger by name Balu tried to interfere with his possession over the schedule property and on the very next day he lodged the complaint. The learned counsel for defendants by pointing out this aspect has vehemently argued that the plaintiff has absolutely no cause of action against any of the defendants even as per his own pleadings since he himself has alleged that on 24.08.2006 the said Balu tried to interfere with his possession, but he is not made as necessary party to the present suit. No doubt according to the allegations of the plaintiff his possession was obstructed by the said person by name Balu on 24.08.2006, but it is relevant to note that according to the plaintiff this date alone is not a date of 54 O.S.No.2494/2007 cause of action to file the present suit, because in para-10 he has also alleged that the cause of action to file the present suit arose on 29.03.1985 when he purchased the suit schedule property from defendant No.1 and thereafter for the year 2006 when his possession was interfered with by the said person.
69. It is to be noted that cause of action is to be gathered from the entire reading of the plaint averments. Merely because an unconnected person interfered with the possession of the plaintiffs and he is not made as necessary party to the said suit that itself is not sufficient to non-suit the plaintiff without considering the other averments and allegations made in the plaint which are proved to be sufficient to ascertain the infringement of right of the plaintiff over suit schedule property. The learned counsel for defendants has also invited my attention to the cross-examination of P.W.1 in this regard.
70. At para-12 of the cross-examination of PW1, it has been elicited from his mouth that in the year 2007 he did not know who was in possession of the schedule property and in the month of August 2006 one Balu trespassed into the schedule property and constructed a 55 O.S.No.2494/2007 shed. Again it has been elicited from his mouth in his further cross-examination on page-13 that the said Balu illegally dispossessed him from the suit schedule property and as on the date of filing of this suit the said Balu was in possession of the suit schedule property. By pointing out this statement of P.W.1 it has been vehemently argued on behalf of the defendants that the plaintiff's suit will have to be dismissed so far as the present defendants are concerned, because even according to P.W.1 his alleged rights over the suit schedule property were infringed by some unknown person by name Balu who is not made as necessary party to this suit.
71. As discussed above, it is not the case of either parties that the said Balu has purchased the suit schedule property nor it is the defence of any of these defendants that at any point of time the suit schedule property was ever transferred to the said Balu or that he is also having any interest in the suit schedule property. On the contrary it is the definite case of the plaintiff that by virtue of Ex.P.3 he had become the absolute owner of the suit schedule property and came into its possession and it was only in the month of August 2006 he was forcibly 56 O.S.No.2494/2007 dispossessed from the suit schedule property by the said person Balu.
72. One more material aspect which is to be noted here is that the plaintiff had already filed O.S.No.7361/2006 against the said Balu for permanent injunction when he interfered with his possession and this fact is not denied by any of the defendants. It is further stated by P.W.1 that when he obtained the certified copy of of sale deed of defendant No.2 at the instance of the Police he came to know that by suppressing the earlier sale transaction as per Ex.P.3, D.W.1 had illegally sold the suit schedule property to defendant No.2 on 03.07.2006 and therefore as the schedule property was transferred in the name of defendant No.2 he withdrew O.S.No.7361/2006 which was filed against the said Balu. Therefore when P.W.1 has clarified this aspect, once again it is not open to the defendants to still contend that because the cause of action was shown to have been arisen as against the said Balu to file the present suit, the plaintiff cannot seek any relief against the defendants.
73. From overall reading of the plaint allegations it is revealed that the plaintiff has specifically alleged that 57 O.S.No.2494/2007 the defendant No.1 has illegally transferred the suit schedule property to defendant No.2 and therefore the plaintiff has to come up with the present suit. It is further material to note that the present suit is not a suit for bare injunction so as to hold that there is cause of action only with regard to alleged interference. On the contrary it is a comprehensive suit brought by the plaintiff for declaratory relief regarding his ownership over the suit schedule property and also for declaration that the disputed sale deeds in favour of defendant No.2 & 4 are null and void and also for recovery of possession of the schedule property. Under such circumstances the exhaustive argument canvassed on behalf of the defendants that the plaintiff has no cause of action to seek the suit relief cannot be sustained.
74. The learned counsel for defendants has also argued that the pleadings are totally silent as to the exact date of alleged dispossession of plaintiff from the suit schedule property and since he has sought for recovery of possession of the suit schedule property, unless and until the pleadings are specific about the date of dispossession, he cannot be held entitled to seek the recovery of 58 O.S.No.2494/2007 possession of the suit schedule property. It is relevant to note that as stated above, the suit of the plaintiff is not for mere injunction or for mere possession of the suit schedule property based on the plea of his dispossession. On the contrary the suit brought by the plaintiff is on the basis of his title deed. Under such circumstances the contention raised on behalf of the defendants that in the absence of any pleadings with regard to dispossession the relief of possession cannot be granted, is unsustainable.
75. It is an equally settled law that U/S 34 of the Specific Relief Act in a suit for recovery of possession where the defendant disputes the title of the plaintiff and where the plaintiff succeeds in proving his title, unless the defendant raise plea of adverse possession, the plaintiff cannot be non-suited. In this regard it would be relevant to refer the decision cited by the learned counsel for plaintiff reported in Smt.Bayanabai Kaware v/s Rajendra Baburao Dhote in AIR 2017 SC 559 wherein the Hon'ble Supreme Court has well settled this position of law as under:
" Specific Relief Act (47 of 1963), S.34- Suit for recovery of possession- Defendant not 59 O.S.No.2494/2007 disputing plaintiff's title to suit land- Nor raising any objection when sale deed exhibited in evidence- Plea of adverse possession by defendant also not proved-
Sale deed duly proved by pl- Plaintiff entitled to decree of possession on basis of sale deed".
76. The principles laid down in the above cited decision will have to be extended to the facts on hand for the simple reason that even in the instant case it is the specific case made out by P.W.1 that he had purchased the schedule property under Ex.P.3 from D.W.1 and was put in possession of the said property and thereafter there was some illegal interference to his possession and further, from the evidence on record as the subsequent sale transactions are held illegal, he is entitled to seek possession of the schedule property from the defendants.
77. In the present case none of the defendants including D.W.1 have pleaded adverse possession. It is not the contention of any of the defendants that by virtue of their respective sale deeds they came into possession of the suit schedule property. Not a single scrap of paper much less any revenue records are produced by the defendants to prove their actual physical possession over 60 O.S.No.2494/2007 the schedule property. No doubt presently defendant No.5 claims to be in possession of the suit schedule property, but none of the defendants have set up any plea of adverse possession. Under such circumstances plaintiff is certainly entitled to seek the possession of the schedule property when he has proved his valid title over the schedule property by virtue of the registered sale deed Ex.P.3. Therefore viewed from all these angles it could squarely be concluded that since the sale transaction in favour of the defendant No.4 and thereafter in favour of defendant No.5 had taken place during the lis, the said transactions would not bind the legal right of the plaintiff over the schedule property and therefore he is certainly entitled to recover the possession of the schedule property from the defendants and hence this issue is answered in his favour in the affirmative.
78. Issue No.7 :- In the light of the findings rendered on all the preceding issues and in the facts and circumstances of the case, parties to the litigation are directed to bear their own costs. In the result, the court hereby proceeds to pass the following:-
61 O.S.No.2494/2007
ORDER The suit filed by the plaintiff against the defendants for the relief of declaration and possession with respect to the suit schedule property is hereby decreed as prayed for.
The plaintiff is hereby declared to be the owner of the suit schedule property by virtue of the registered sale deed dated 29.03.1985. Consequently the sale deed dated 03.07.2006 executed by defendant No.1 in favour of defendant No.2, sale deed dated 02.12.2006 executed by defendant No.2 in favour of defendant No.3, sale deed dated 19.08.2008 executed by defendant No.3 in favour of defendant No.4 and sale deed dated 21.08.2018 executed by defendant No.4 in favour of defendant No.5 are hereby held as null and void and not binding on the plaintiff's right over the suit schedule property.62 O.S.No.2494/2007
The defendant Nos.1 to 5 are hereby directed to deliver the vacant possession of the schedule property to the plaintiff within two months from the date of this order and on their failure the plaintiff is entitled to recover the possession of the suit schedule property through the process of Court.
No order as to costs.
Draw decree accordingly.
(Part of the judgment dictated to the Judgment Writer, transcribed by him on Computer and part is typed and concluded by me on the Laptop, carried out corrections, print out taken and then pronounced in the open court on this the 29th day of January, 2022) (SAVITRI SHIVAPUTRA KUJJI) X Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiff:
PW.1 : Manjunatha, N PW.2 : K.S. Teekaraman
List of documents exhibited for plaintiff:
Ex.P1 : Original sale deed dt.3.9.1981
63 O.S.No.2494/2007
Ex.P2 : Agreement of sale dt.5.2.1985 (sub.to
obj)
Ex.P3 : Original sale deed dt.29.3.1985
Ex.P4 : Khatha endorsement
Ex.P5 : E.C. from 1.10.1995 to 18.10.2003
Ex.P6 : Khatha certificate
Ex.P7-12 : Six tax paid receipts
Ex.P13 : Betterment charge receipt
Ex.P14-23 : Ten tax paid receipts
Ex.P24 : E.C. from 1.4.1976 to 31.3.2006
Ex.P25 : E.C. from 1.4.2006 to 18.8.2006
Ex.P26 : Copy of police complaint
Ex.P27 : Certified copy of sale deed dt.3.7.2006
Ex.P28 : Certified copy of sale deed dt.2.12.2006
Ex.P29 : Special notice dt.31.1.1996
Ex.P30 : Endorsement of Panchayath
Ex.P31 : Tax paid receipt
Ex.P32 : E.C. from 1.4..1983 to 13.5.1998
Ex.P33 : Disputed thumb impression
Ex.P34 : Admitted thumb impression
Ex.P35 & 36: Enlarged copies of Ex.P33 & P.34 Ex.P37 : Opinion dated 19.02.2016 Ex.P37(a) : Signature of P.W.2 Ex.P38 : Letter dt:22.02.2016 List of witnesses examined for the defendants:-
D.W1 : Meera
D.W2 : Syed Rahmath Masood
64 O.S.No.2494/2007
List of documents got exhibited for the defendants:-
Ex.D1: Copy of legal notice Ex.D1(a): Empty cover Ex.D2: Reply notice Ex.D3: Certified copy of the PCR No.74/13 Ex.D4: -do- FIR Ex.D5: -do- 'B' Report
Ex.D6 : Certified copy of sale deed dt:31.8.1981 Ex.D7 : Certified copy of sale deed dt:3.7.2006 EX.D8 : Certified copy of sale deed dt:2.12.2006 Ex.D9 : Certified copy of sale deed dt:19.8.2008 Ex.D10: Certified copy of encumbrance certificate Ex.D11,12: Two tax paid receipts Ex.D13: Endorsement dt:29.9.2021 Ex.D14,15: Two electricity bills Ex.D16,17: Two water bills Ex.D18 : C/c of sale deed dt:21.8.2018 Ex.D19,20: Khatha certificate & khatha extract X Addl. City Civil & Sessions Judge, Bangalore.