Bangalore District Court
Sri. Sunil Bhatia vs Smt. Anusuya on 21 January, 2020
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Smt. Suvarna K. Mirji, B.Com., LL.B.(Spl).,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
O.S.No.15550/2003
Dated this 21st day January of 2020
Plaintiff/s:- 1. Sri. Sunil Bhatia, S/o. M.M. Bhatia,
Aged about 29 years
2. Sri. Suresh Bhatia S/o. M.M. Bhatia,
Aged about 41 years
Hindus, Residing at 4406-7-8
High Point No.4, 45, Palace Road
Bangalore
(Rep by Advocate for Plaintiff Sri. H.R. Ananthakrishnamurthy &
Associates)
V/S
Defendant/s:- 1. Smt. Anusuya
W/o. Sri. B.S. Adinarayana Reddy,
Hindu, major, Residing at No. 59 E
1st Cross, 3rd Main
Mathikere, Bangalore
(Now alleged to have been residing
at Kaganapalli, Bagepalli Taluk,
Kolar District)
2. Sri. K.P. Patrick Lawrence
2
O.S.No.15550/2003
S/o. Late K.A. Peter
Major, residing at No.7/10, A-13,
10/22, 1st Floor, Krishan Nilaya,
Upper Chabriya Layout,
Kumara Krupa road,
Bangalore-560 001.
3. Sri. G. Gopala Reddy
S/o. Late G. Venku Reddy
Residing at 1408, Sree Nivas,
11th Main, Mahalakshmipuram,
West of Chord Road, 2nd Stage
Bangalore-560 086.
4. P Sathish Pai S/o Late P. Narasimha Pai
Major, R/at Century builders,
lakshmi narayana building,
Opp. Mount Carmel College,
Palace road, Vasanth Nagar,
Bangalore-560001.
5. R. Venkatesh S/o. M V Ramanna
Major, No: 693/A, "Sheshakrupa"
5th Cross road, BSK 1 stage,
1st Block, Ashok Nagar,
Bangalore-560050.
(Rep by Advocate for D1-MVC, D2-Sri M.L. Dayananda
Kumar/M.D. Ragunath, D3-Sri G.R. Lakshmipathi Reddy, Advocate,
D4 & D5-M.V. Hymavathi, Advocate)
3
O.S.No.15550/2003
Date of Institution of the suit 03/07/2003
Nature of the (Suit or pro-note, suit for Declaration and permanent
declaration and possession, suit for injunction,
etc.) injunction
Date of the commencement of recording of
the Evidence.
08/07/2010
Date on which the Judgment was
21/01/2020
pronounced.
Year/s Month/s Day/s
Total duration 16 06 18
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru
.
4
O.S.No.15550/2003
:J U D G M E N T:
The plaintiffs filed suit against defendants for declaration and permanent injunction.
2. The Brief facts of plaintiffs' case is as under:
The plaintiffs submit that defendant No.1/Anusuya was the absolute owner of the land bearing Sy.No.44/2B/2 measuring 1 Acre 14 Guntas of Hebbal Village, Kasaba Hobli, Bangalore North Taluk. The entire property is described as the "C" schedule as under:-
SCHEDULE "C"
All that piece and parcel of an immovable property bearing Sy. No. 44/2B/2 with an extent of 1 Acre 14 Guntas of Hebbal Village, Kasaba Hobli, Bangalore North taluk together existing structures and all other appurtenances and bounded on the : East by: national Highway No.7 (Bangalore Bellary Road) and measuring 76 (Seventy Six) feet; West by: Private property and measuring on that side 100 feet; North by:5
O.S.No.15550/2003 Property bearing Sy.No. 44/2A and measuring on that side 717 feet; South by: Property bearing Sy. No. 44/2B/1 belonging to one Sri. Ramachandra Reddy and measuring on that side 764 feet. The plaintiffs further submit that 1st defendant agreed to sell the schedule property in favour of Sri. Satish Pai and he has made payments to the defendant and or her husband Sri. B.S. Adinarayana Reddy i.e., on 19/10/1989 Rs.10,000/- by cheque No.895060 drawn on Canara Bank, on 19/10/1989 Rs.10,000/- by cheque No. 895079, on 25/10/1989 Rs.20,000/- by cheque No. 895088, on 29/10/1989 Rs.15,000/- by cheque No. 895089, on 04/11/1989 Rs.15,000/- by cheque No. 895090, on 07/11/1989 Rs.15,000/- by cheque No. 895091, on 09-10/11/1989 Rs.15,000/- by cheque No. 895092, on 15/11/1989 Rs.15,000/- by cheque No. 895093 issued to Smt P. Anusuya.6
O.S.No.15550/2003
3. The plaintiffs submit that they made further payments on 02/04/1990 Rs.5,000/- by cheque No.1607051, on 02/04/1990 Rs.5,000/- by cheque No.1607052, on 08/06/1990 Rs.2,500/- by cheque No.156860, on 11/06/1990 Rs.2,500/- by cheque No.156861, on 16/09/1990 Rs.5,000/- by cheque No. 177860 issued to Sri. Adinarayana Reddy. The plaintiffs submit that on 03/12/1990 they issued cheque bearing No.1512654 for Rs.10,000/- to Smt. P. Anusuya and on 25/02/1991 Rs.10,000/- by cheque No.858767, on 11/04/1991 Rs.5,000/- by cheque No.873369, on 17/07/1991 Rs.5,000/- by cheque No.873370, on 31/08/1991 Rs.10,000/- by cheque No.875386, on 19/04/1991 Rs.5,000/- by cheque No.864908, on 01/12/1990 Rs.2,000/- by cash, on 01/12/1990 Rs.10,000/- by cash, on 08/08/1990 Rs.10,000/- by cash, on 19/10/1989 Rs.10,000/- by cheque No.895079 issued to Sri. Adinarayana Reddy. For the purpose of family commitments and living necessities 7 O.S.No.15550/2003 Smt.Anusuya entered into a registered agreement of sale with Sri.Satish Pai, dated 12/01/1990 agreeing to sell the suit schedule property for a sum of Rs. 3,50,000/-. A sum of Rs.1,00,000/- was paid to the 1 st defendant by a demand draft and it was agreed that the entire remaining balance of the sale consideration should be paid only at the time of regular registration of the Sale Deed and also agreed that the Sale Deed should be registered in the name of Sri. Satish Pai or his nominee. It was represented by the 1 st defendant that she has not alienated the schedule property by way of a sale, gift, mortgage, lease etc., and that there are no claims on the schedule property. At the instruction of Sri. Satish Pai, the 1st defendant executed a registered power of attorney on 29/01/1992 in favour of Sri. R. Venkatesh [defendant No.5]. It was represented in the power of attorney by the 1 st defendant that she had entered into an agreement to sell the schedule property to one Sri. P. Satish Pai or his nominees and that she had received a sum of Rs.2,20,000/- as sale 8 O.S.No.15550/2003 consideration and that she has authorized Sri. R. Venkatesh to conclude the transaction.
4. The plaintiffs further submits that the 1 st defendant has also executed a sworn affidavit stating that she has executed an agreement of sale dated: 12/01/1990 with Sri. Satish Pai and has delivered vacant possession of the property to Sri. Satish Pai and that she had executed a power of attorney in favour of R.Venkatesh, which under any circumstances is not irrevocable. The plaintiffs further submit that acting as the power of attorney holder of Smt. Anusuya, Sri.R Venkatesh registered the property in favour of Sri.Suresh Bhatia on 01/08/1992 in respect of portion of Sy.No.44/2B2 to an extent of 25 Guntas i.e., suit schedule 'A' property SCHEDULE "A"
All that piece and parcel of an immovable property agriculture property being portion of survey number bearing old Sy. No. 44/2B and presently re-numbered as Sy. no. 44/2B/2, situated in Hebbal Village, Kasaba Hobli, 9 O.S.No.15550/2003 Bangalore North Taluk measuring to an extent of 25 Guntas and bounded on the East by: NH 7 & Bangalore Yelhanka High Way; West by: Portion of the same Sy No. earlier belong to the Smt. Anusuya and sold to Sri, Suresh Bhatia; North By: Sy. no. 44/2A; South by: Sy. No. 44/2B/1. The plaintiff submits that the remaining portion of the Sy.No.44/2B/2 which is the suit schedule 'B' property sold to Sri. Sunil Bhatia on 16/05/1992 under registered document, which is detailed as under:-
SCHEDULE "B"
All that piece and parcel of an immovable property being portion of Survey number bearing old Sy. No. 44/2B and presently re-numbered as Sy. No. 44/2B/2, situated in Hebbal Village, Kasaba Hobli, Bangalore North Taluk measuring to an extent of 25 Guntas and bounded on the East by: Portion of the same Sy. no. earlier belong to the Smt. Anusuya and sold to Sri. Sunil Bhatia; West by: Kodigehally Boundary; North by: Sy. No. 44/2A; South by: Sy. No. 44/2B/1. 10
O.S.No.15550/2003 The said persons Sri. Suresh Bhatia and Sri Sunil Bhatia are the nominees of Sri. P. Satish Pai. They have been in actual possession of the property.
5. The plaintiffs further submits that the 1 st plaintiff has paid Rs.1,50,000/- by way of two Pay Orders bearing No.910 and 911, dated: 29/04/1992 for Rs.75,000/- each.
The 2nd plaintiff has paid Rs.1,50,000/- by way of two Pay Orders bearing No.912 and 913, dated: 29/04/1992 for Rs.75,000/- each. Excess amount has been received by defendant No.1. The said documents were found to be undervalued and therefore sent for valuation. Thereafter a certified copy of the registered sale deed was obtained from the office of the Sub-Registrar, Bangalore North Taluk. The names of the plaintiffs 1 & 2 entered in the mutation register. While making entry of the deed of sale, it is mentioned as 784/93-94 and 785/93-94 instead of the correct sale deed numbers 814/1992-93 and 815/1992-93. 11
O.S.No.15550/2003 The entry pertains to the certified copy of the sale deed. The originals were registered and numbered as aforesaid. The error in noting the particulars of the sale deed is that of the village accountant. Taking advantage of the error, which is inconsequential, Smt. Anusuya made an application before the Tahasildar for rectification of the entries in the mutation register with a view to make a wrongful gain. The Tahasildar by his order in Case No.RRT(D)/04/99-2000, dated: 08/04/2002 directed a change in the entries in the relevant records and directed to approach the Civil Court. The Tahasildar erred in not accepting the General Power of Attorney and holding that R. Venkatesh was person unknown and that he did not have any right to execute the sale deed in favour of the plaintiffs. Against the order of the Tahasildar, an appeal was filed before the Assistant Commissioner, in RA/154/2002-03. The Assistant Commissioner confirmed the order of the Tahasildar vide order dated: 21/02/2003 in RA No.14/1997-98 before the 12 O.S.No.15550/2003 Assistant Commissioner and RA No.154/2002-03 before the H.R.No.1/1993-94 and H.R.No.2/1993-94 before the Tahasildar the 1st defendant contended that she has not executed the power of attorney in favour of Sri.R.Venkatesh. She has also denied the registration of the said document. Sri.Satish Pai had contract of sale in his favour and the power of attorney is in pursuance of the agreement. The power of attorney is coupled with interest. The 1 st defendant's husband has also attested power of attorney. Against the order of the Assistant Commissioner, a revision petition has been filed before the Deputy Commissioner, Urban District, Bangalore in Revision No.186/02-03. An order of stay of the orders passed by the learned Assistant Commissioner has been passed. The 1st defendant knew about the change in the mutation entries and she kept quiet. After a lapse of 8 years, the application is made for rectification of entries. The defendants No. 1, 2 & 3 have colluded together and a sale deed allegedly has been 13 O.S.No.15550/2003 executed by the defendant No.1 in favour of K.P. Patrick Laurance and G. Gopal Reddy [defendants 2 and 3 respectively]. Having received the entire consideration and having executed the power of attorney, which is also duly registered in favour of R. Venkatesh, the 1 st defendant in collusion with defendants No. 2 and 3 illegally got the sale deed executed. Smt. Anusuya [defendant No.1] did not have any right to do so. Sri. R. Venkatesh acting as a power of attorney holder of Smt. Anusuya has executed the sale deed and has registered the same. It is settled law that an earlier registered deed prevails over any document. The sale deed in favour of the plaintiff prevails over the sale deed of the defendants No.2&3. The sale in favour of the plaintiffs in much earlier to the alleged sale deed executed by the 1 st defendant in favour of defendants No.2&3. It is submitted that the sale deed executed by the 1 st defendant in favour of defendants No. 2&3 is only to make a wrongful gain. 14
O.S.No.15550/2003
6. The Plaintiffs further submit that they read notification in the Deccan Herald newspaper dated: 23/12/2002 to the effect that an extent of 300 Sq. Mtrs., Sy. No. 44/2B/2 was notified for acquisition in respect of the development of National Highway No.7. The plaintiffs have filed their objections to the same. The plaintiffs submit that the 1 st defendant has not challenged the sale deed executed by the 5th defendant in favour of the plaintiffs. She did not have any right, title interest or possession after 24/10/1992. The sale deeds relied upon are abinitio void and is not admitted by the plaintiffs. Plaintiffs further submit that a complaint before the Chief Metropolitan Magistrate in PCR No. 3620/2003 and PCR 3621/2003 lodged. Defendants tried to enter upon the land on 31/03/2003 and the plaintiffs resisted them. Plaintiffs approached the police but they were advised to approach the civil court. Hence the plaintiffs have filed the suit. The cause of action for the suit arose on 31/03/2003. The plaintiff prays for a judgment and decree in 15 O.S.No.15550/2003 his favour and against the defendants declaring that the alleged sale deed executed by the 1st defendant in favour of the defendants No.2&3, Regd. as No. 1516/2001-02, dated:
24/10/2002 is void and does not bind the plaintiffs, plaintiffs pray for permanent injunction restraining the defendants, their agents, servants, assigns or anyone acting or claiming on their behalf from entering upon or in any way interfering with the peaceful possession and enjoyment of the property suit schedule property and also declare that the first defendant Smt. Anusuya has executed a power of attorney in favour of Sri. V. Venkatesh.
7. The defendant No.1 has filed her written statement contending that the plaintiffs are disentitled to seek any relief much less the relief sought in the above suit. Sri P. Satish Pai is waging pseudo war against the defendant No.1 through the plaintiffs and he is the root cause for landing defendant No.1 to this disastrous condition. The 16 O.S.No.15550/2003 plaintiff suppressed the material facts. There was no consensus between the defendant No.1 and P. Satish Pai, who is a developer and a builder. The said P. Satish Pai induced defendant No.1 to enter into an agreement of sale dated 31/10/1988 with Gopala Krishna Shenoy, his brother in law to sell an extent of 1 acre 12 guntas out of Sy.No.44/2B of Hebbal village for a sum of Rs.6,25,000/- and it was further agreed that if there was any variation in the extent, the sale consideration shall be reduced or increased accordingly. The property bearing Sy.No.44/2B totally measures 1 acre 15 guntas. Thus a sum of Rs.1,00,000/- was paid under the said agreement by the said P. Satish Pai on behalf of his brother in law (Rs.25,000/- through cash and Rs.75,000/- through cheque drawn on Karnataka Bank dated 1/10/1988 bearing No.0824012. As per the agreement the said purchaser was required to pay within two months from the date of the said agreement a sum of Rs.2,25,000/-. However neither the said 17 O.S.No.15550/2003 Gopalakrishna Shenoy or P. Satish Pai complied with the terms and conditions of the said agreement. On several occasions on installments paltry sums being paid by the said P. Satish Pai subsequent to the said agreement of sale dated 1/10/1988 to the defendant No.1. The defendant No.1 denied the averments made in the plaint para 3 that she agreed to sell the suit schedule property in favour of P. Satish Pai and made payment to her [defendant No.1] and her husband Adinarayana Reddy on installments. The plaintiffs twisted the facts to project that the payments were made in installments as per agreement dated 12/1/1990 between the defendant No.1 and P. Satish Pai. Absolutely no payments were made with regard to the transaction covering the alleged sale agreement as contended in para 3 of the plaint. A sum of Rs.1,00,000/- only was paid under the agreement dated 12/1/1990 by P.Satish Pai. The plaintiffs are guilty of suppresio vari and suggestio falsi. For the reason of clause No.11 in the agreement of sale 18 O.S.No.15550/2003 dated 12/01/1990 the possession was not delivered, which reads that "The vendor has this day delivered all the relevant documents to the purchaser and possession of the property will be delivered at the time of registration of the sale deed". Plaintiffs have twisted the facts and narrated the same to suit their convenience. The said P. Satish Pai played fraud on defendant No.1 and her husband and obtained agreement of sale dated 12/1/1990 stating that the said agreement was in continuation of the earlier agreement and obtained registered agreement of sale without disclosing the fact. On 29/01/1992 the said P. Satish Pai called upon defendant No.1 on the pretext he will complete the sale transaction as agreed upon and induced defendant No.1 to sign several papers and defendant No.1 and her husband confused and signed on the papers as if he was taking the signature on the memorandum of understanding. The said P. Satish Pai might have taken signature of the defendant No.1 and her husband as an attestor, on the general power of attorney in 19 O.S.No.15550/2003 the name of R. Venkatesh. At the time of taking signatures on the memorandum of understanding he has obtained signatures of the defendant No.1 on blank stamp paper of Rs.100/-. The said document show that it was not at all sworn before any authority. Defendant No1 is not at all aware of R. Venktesh or his whereabouts. The plaintiffs never disclosed the execution of the said affidavit anywhere in earlier proceedings before Revenue Authorities which establishes the gravity of fraud and manipulation by P. Satish Pai. Plaintiffs have not disclosed anywhere about the payment of amounts by installments by P. Satish Pai or execution of the affidavit and Memorandum of Understanding. Plaintiffs have stated before the Revenue authorities that the entire sale consideration was paid under the said agreement dated 4/1/1990. In fact there was no agreement on 4/1/1990 at all and the question of payment of entire amount does not arise. Plaintiffs have taken different stands at different places. P. Satish Pai or the said Gopala 20 O.S.No.15550/2003 Krishna Shenoy have not acted upon under the earlier agreement of sale dated 1/10/1988. The possession was never delivered to by defendant No.1 in pursuance of the said agreement of sale dated 12/1/1990. It was agreed as per the said memorandum of understanding, a sum of Rs.1,30,000/- was still continued and that will be paid by the said P. Satish Pai to his power of attorney holder R. Venkatesh within six months. But they have not complied with the said terms and conditions. The defendant No.1 denied the execution of general power of attorney in favour of R. Venkatesh. Further defendant No.1 denied the execution of the sale deed by the said R. Venkatesh in favour of plaintiffs in respect of the suit schedule property. The two sale deeds referred to in para 7 of the plaint is a sham transaction and the same is not binding on this defendant. The documents such as General Power of Attorney, affidavit, memorandum of understanding and subsequent alleged sale deeds are result of fraud played by 21 O.S.No.15550/2003 P. Satish Pai on the defendant No.1. There is no consensus ad diddum between P. Satish Pai and defendant No.1 in respect of alleged agreement of sale dated 12/1/1990 and GPA dated 29/1/1992 and alleged execution of memorandum of understanding and hence the same are not binding on the defendant No.1. Further, defendant No.1 denied plaint para 8 averments and submitted that mutation was obtained on the strength of spurious documents and proceedings before Revenue Authorities speaks the realities and the said Authorities have rightly passed the orders in favour of defendant No.1 assessing the materials facts and proceedings initiated by plaintiffs before the revenue authorities are still pending. There is no collusion between defendants No. 1, 2 and 3 as alleged in para 13 of the plaint. Defendant No.1 never executed any GPA in favour of R. Venkatesh nor the same was within the knowledge of defendant No.1. Any transaction on the strength of the alleged GPA is void and sham transaction and the same is 22 O.S.No.15550/2003 not binding on this defendant. This defendant has exercised her ownership and executed sale deed in favour of defendants No. 2 and 3. There is no illegality or irregularity in the said transaction. The said Sri P. Satish Pai and said R. Venkatesh are proper and necessary party to the suit. In the absence of said persons the suit is bad for non joinder of necessary parties. Defendant No.1 has exercised her rightful ownership and title and passed on the same to the defendants No. 2 and 3 and they have been put in possession of the same. The transaction between the defendants is perfectly valid and the same is in accordance with law. Plaintiffs on the strength of spurious documents trying to invade over lawful possession of defendants No.2 and 3 in connivance with said P. Satish Pai and his bother in law Gopala Krishna Shenoy. The transaction between Gopala Krishna Shenoy and defendant No.1 barred by limitation. The agreement of sale dated 12/1/1990 is also barred by limitation. The transaction between defendant No.1 with P. 23 O.S.No.15550/2003 Satish Pai was not coupled with interest or the said Gopala Krishna Shenoy. The alleged G.P.A did not create any right in favour of the alleged R. Venkatesh and the said transaction was not covered within the purview of the G.P.A. coupled with interest. The defendant No.1 prays to dismiss the suit of the plaintiffs and also prays to declare that there was no consensus ad diddum in respect of the alleged agreement of sale dated 12/1/1990 between defendant No.1 and P. Satish Pai and consequently the GPA dated 29/1/1992 is a sham document and does not confer any right power or authority in favour of attorney therein to enter into any transaction. The defendant also prays to declare that the sale deed dated 16/5/1992 registered as No. 815/92-93 and another registered sale deed dated 16/5/1992 registered as document No.814/1992-93 executed in favour of plaintiffs No.1 and 2 respectively are sham illegal and void documents and the same does not confer any right, title 24 O.S.No.15550/2003 interest or possession on the plaintiffs 1 and 2 respectively with costs.
8. The defendant No.1 has filed additional written statement stating that the plaintiff is not entitled for declaration sought for. That P. Satish Pai played fraud on the defendant No.1 and her husband in creating power of attorney in favour of R. Venkatesh who is not known to defendant No.1 and her husband. Under the guise of obtaining the signature of memorandum of understanding the said P.Satish Pai had obtained signature of defendant No.1 on a blank stamp paper of Rs.10/-. Thus P. Satish Pai had fabricated the GPA in favour of R. Venkatesh. Thus defendant No.1 rightly taken contention before Asst. Commissioner as well as Deputy Commissioner that she had not executed any GPA and Registration of the document. The said power of attorney is not coupled with interest. Plaintiffs have played fraud and by incorporating the terms 25 O.S.No.15550/2003 of para 11 of the alleged agreement stating that P. Satish Pai has been put in actual possession of the property in part performance of the contract and obtained interim order of injunction by showing the said recitals and mislead this court. The plaintiff is taking averments which are convenient to him by taking different stands from one stage to another. The plaintiff is disentitled to seek any relief at the hands of this court. Plaintiffs are also not entitle for declaration sought by way of amendment. The suit is bad for non joinder of necessary parties and misjoinder of necessary parties. The plaintiff is not entitled to seek additional relief as sought in the absence of P. Satish Pai and the alleged R. Venkatesh to be made as parties in the suit. The suit is clearly barred by limitation. The plaintiffs are not entitled for the reliefs sought in the suit without seeking the appropriate relief of declaration of their title to the suit schedule property. The plaintiffs are not at all in possession or enjoyment of the suit schedule property. The defendant 26 O.S.No.15550/2003 No.2 and 3 are in possession and enjoyment of the suit schedule property. Without seeking the relief of declaration and possession the suit is not maintainable. The valuation made and court fee paid is also insufficient.
9. The plaintiff filed written statement to the counter claim made by defendant No.1&2 wherein he has denied the incriminating averments made in the counter claim of the defendant No.1 in para 1 and further denied that the plaintiffs are dis entitled to seek any relief muchless relief sought in the suit. Plaintiffs admit that P. Satish Pai is a developer and a builder and further denied the averments made in para 4 of the counter claim and further contended that it is the holder of the agreement that paid the amount. The other assertion that as per the said agreement the said purchaser was required to pay within two months from the date of the said agreement a sum of Rs.2,25,000/- and however, neither the said Gopala Krishna Senoy or P. Satish 27 O.S.No.15550/2003 Pai complied with the terms and conditions of the said agreement of sale is incorrect. The question of payment by P. Satish pai does not arise. The plaintiffs have extracted whole contents of paragraphs 3, 5, 6, 8, 9, 10, 10(a), 11, 12, 13, 14, 14(a), 15, 16, 17 of the counter claim / written statement of defendant No.1 in the objections and denied the same as false. The plaintiff further contended that plaintiffs are entitled to seek any relief much less relief sought in the suit and prays to dismiss the counter claim of defendant No.1.
10. The defendant No.3 has filed written statement stating that Smt. Anusuya the 1st defendant was the absolute owner of the suit schedule property. The other allegations made by plaintiffs that Smt. Anasuya entered into agreement of sale dated 12/01/1990 with Satish Pai to sell the land is not within his knowledge and other allegations made in para 3 of the plaint are not within his knowledge. Defendant No.3 28 O.S.No.15550/2003 further extracted the plaint averments made in para 4, 7A, 7B, 8, 9, 11 and further stated that the same are not within his knowledge. The defendant No.3 denied the averments made in para 5, 6, 7 of the plaint. The defendant No.3 further stated that it is not in his knowledge that the documents were found to be undervalued and therefore sent for valuation and thereafter certified copy of the sale deed obtained and an application was made for making necessary mutation entries on the application and an order was passed directing the names of the plaintiff 1 and 2 to be entered in mutation register. Defendant No.3 further stated it is not correct to state that the Tahsildar vide order dated 8/4/2002 directed change in entries in the relevant records and directed parties to approach civil court, but it is a fact that Tahsildar passed orders dated 8/4/2002 in favour of Anasuya. Regarding averments made in para 12 of the plaint, defendant No.3 further stated that it is not in his knowledge. It is also not within his knowledge that the 1 st 29 O.S.No.15550/2003 defendant knew about the change in the mutation entries as she knew that correct entries has been made and she kept quite and after lapse of 8 years the application is made for rectification of entries. Defendant No.3 further denied the contentions made in para 13 of the plaint that defendants 1 to 3 colluded and executed sale deed in favour of Patrick Lawrence and G. Gopal Reddy and also other allegation that Smt. Anasuya did not have any right to do so and Sri R. Venkatesh acting as GPA holder of Anasuya has executed the sale deed. The defendant No.3 further denied the allegations made in para 14 of the plaint that earlier registered sale deed prevails over any document registered later. The defendant No.3 further denied plaint averments made in para 15 that the sale deed executed by the 1 st defendant in favour of defendants No. 2 and 3 only to make wrongful gain. The allegations made by plaintiffs in para 16 of the plaint does not arise for consideration in favour of plaintiffs for the reason that plaintiffs have no manner of 30 O.S.No.15550/2003 right, title or interest over the property in question and objections by them before the acquisition authorities also not sustained under law. Defendant No.3 further denied the plaint para 17 averment that 1st defendant has not challenged the sale deed executed by 1st defendant in favour of plaintiff is not within the knowledge of this defendant and that she did not have any right title interest or possession after 24.10.1992. Defendant No.3 further denied that sale deeds relied upon by defendants No. 2 and 3 and executed by defendant No.1 is abinitio and further stated that the plaintiff has unnecessarily made complaint against him and others before the Chief Magistrate in PCR NO.3620/03 and PCR 3621/03. The defendant No.3 further denied that they entered upon the land on 31/03/2003 and tried to dispossess the plaintiffs. The defendant No.3 further stated that the allegations made in para 20 of the plaint are common question of law and facts. There is no cause of actin as alleged by the plaintiff. The plaintiffs are not entitled for any 31 O.S.No.15550/2003 relief claimed by them in the suit and the schedule furnished therein also in correct. The suit of the plaintiff is highly belated and liable to be dismissed. Defendant No.3 further submits that defendants No.2 and 3 are absolute owners in possession and enjoyment of the plaint schedule property measuring 1 acre 15 guntas in Sy.No.4/2B/2 of Hebbal village, Kasaba Hobli having purchased the same from the 1st defendant for a sale consideration under registered sale deed dated 24/10/2002 in pursuance to the sale deed the defendant No.2 and 3 have put in possession of the same and continued to be in exclusive possession of the property in question. After the purchase the khatha has been transferred in the name of the defendants No.2 and 3 and mutation in MR No.5/02-03 has been effected in, the name of defendants No. 2 and 3 have also been entered in column No.9 and 12 of the RTC extract. The defendants No.2 and 3 have also paid taxes to the property. The defendants No.2 and 3 are bonafide purchasers of the land in question. The 32 O.S.No.15550/2003 plaintiffs have not at all acquired any absolute right, title or possession in respect of the plaint schedule properties. The suit of plaintiff is liable to be rejected. The defendant No.3 prays to dismiss the suit with costs.
11. The defendant No.4 in his written statement submits that he is not a necessary party to the suit and the suit against this defendant may be dismissed. He is impleaded by defendant No.1 only to harass and humiliate him. The intention of the defendant No.1 is to tarnish the image of this defendant. The defendant No.1 has to prove her case based on material available with her not by making unnecessary allegations against others. Defendant No.4 further submits that 1st defendant agreed to sell suit schedule 'C' property to this defendant for a valuable sale consideration of Rs.3,50,000/- under registered agreement of sale dated 12/1/1990. This defendant has paid a sum of Rs.1,00,000/- by way of demand draft. He has paid further 33 O.S.No.15550/2003 sum of Rs.2,50,000/- in favour of defendant No.1 and her husband Sri B.S. Adinarayana Reddy. Defendant No.4 further submitted that originally the 1st defendant had entered into agreement of sale with one Gopalakrishna Shenoy and a sum of Rs.1,00,000/- was paid by this defendant on behalf of Sri Gopalakrishna Shenoy and the same was adjusted when this defendant entered into an agreement of sale with 1st defendant to purchase the suit schedule property. In all this defendant has paid 1 st defendant a sum of Rs.3,50,000/- and there is nothing due to be paid to the 1st defendant towards sale consideration. This defendant has paid entire sale consideration amount and as only formality of registering the sale deed remained, 1 st defendant executed power of attorney in favour of one R. Venkatesh, the 5th defendant to complete the formalities of registering the sale deed either in the name of the purchaser or his nominees. The said power of attorney is a registered document and the 1st defendant cannot go beyond the said 34 O.S.No.15550/2003 document now. The 1st defendant has neither cancelled the power of attorney nor challenged the sale deed executed by Power of Attorney Holder and neither has she challenged the agreement of sale executed in favour of this defendant or refunded the amounts received by her and her husband from this defendant over a period of time. Defendant No.4 further submits that on the strength of the said registered power of attorney the 5th defendant registered the sale deed dated 16/5/1992 in respect of the suit schedule property in favour of the plaintiffs as this defendant had named the plaintiff as his nominees for registration of the sale deed. The plaintiffs have also paid the 1 st defendant a further sum of Rs.3,00,000/- as demanded by the 1st defendant and her husband by way of pay orders. The 1st defendant has received money more than the agreed sale consideration. After receiving the excess amount and after the sale deed was registered in favour of plaintiffs as there was some discrepancies in the mutation register with regard to the 35 O.S.No.15550/2003 survey number the 1st defendant and her husband with malafide intention and to unlawfully enrich themselves have sold the suit schedule property in favour of the 2nd and 3rd defendant. As on the date of executing the sale deed in favour of the 2nd and 3rd defendants the 1st defendant had no subsisting right, title or interest in the suit schedule property and consequently the defendants No.2 and 3 also do not derive any right, title or interest in the suit schedule property. He further submits that Smt. Anasuya the 1 st defendant and her husband Sri Adinarayana Reddy have filed a complaint in PCR No.2472/2004 against defendants No. 4 and 5 and they have also included the names of the plaintiffs in the said complaint. The defendant No.1 has filed the complaint after the filing of the suit and as an afterthought only with intention of harassing this defendant. The 1st defendant in her complaint admits having received amounts from this defendant. She is very vague and evasive with regard to the total payment received by her from this 36 O.S.No.15550/2003 defendant. The 1st defendant and her husband have received money from this defendant and also plaintiffs with an intention to enrich themselves unlawfully. Defendant No.4 further submitted that one B.S. Suranarayana Reddy has filed suit for partition in O.S.No. 1223/2009 against 1 st defendant and her husband Adinarayana Reddy among other defendants for partition of only the suit schedule property without even a hint of whether there are other properties for partition or how the schedule property becomes the joint family property of brothers of Mr.Adinarayana Reddy. This defendant is also made a party to the said suit. The 1 st defendant and her husband B.S. Adinarayana Reddy and his family have the habit of litigating to enrich themselves at the cost of purchasers of the land and other concerned persons. The husband of 1st defendant is an educated person and retired government employee and he is in the habit of reading each and every line written in a document before he or the 1st defendant signs the same and any averment that 37 O.S.No.15550/2003 they are not aware of the clauses in a document or signatures were obtained on blank papers are allegations concocted for the sake of setting up a defence in this suit and for defrauding the plaintiffs and this defendant. The defendant No.4 concedes the plaint averments and submits that the suit of the plaintiffs may be decreed as prayed for.
12. The defendant No.4 further submitted that plaintiffs are absolute owners of the suit schedule property being bonafide purchasers of the same. Defendant No.4 denied the averments of the written statement filed by defendant No.1 that defendant No.4 is waging pseudo war against defendant No.1 and he [defendant No.4] is the root cause for landing the defendant No.1 in this disastrous condition. This defendant denied that plaintiffs have suppressed the material facts and filed the present suit in order to make wrongful gain and on the other hand it is the 1 st defendant and her husband who are real culprits have sold the properties to two 38 O.S.No.15550/2003 purchasers and have received sale consideration from both of them making their intentions and behaviour very obvious. Defendant No.4 denied that there was no consensus ad idem between the defendant No.1 and P. Satish Pai. Defendant No.4 submits that 1st defendant has received the sale consideration from this defendant and the 1 st defendant has admitted the same in para 4 and 5 of her written statement. This defendant further denied that this defendant is a great manipulator and do things in his favour at any cost and that the instant proceedings are resultant product of the fraud played by this defendant. He further submits that 1st defendant is making all kinds of allegations to malign the name of this defendant and harass, coerce and blackmail this defendant. Defendant No.4 submits that he is a builder and further denied that he enters into agreements of all sorts and other illegal transactions with owners of lands. Defendant No.4 further denied that he induced defendant No.1 to enter into an agreement of sale dated 31/10/1988 with 39 O.S.No.15550/2003 Gopalakrishna Shenoy, his brother in law to sell an extent of 1 acre 12 guntas out of Sy.No.44/2B of Hebbal village for a sum of Rs.6,25,000/-. Defendant No.4 further submits that husband of 1st defendant is very shrewd person and will not allow 1st defendant to be induced into any kind of a transaction much less an agreement of sale. Defendant No.4 further denied that if there was any variation in the extent, the sale consideration shall be reduced or increased accordingly. Defendant No.4 submits that property bearing Sy.No. 44/2B totally measures 1 acre 15 guntas and that a sum of Rs.1,00,000/- was paid by this defendant to the 1 st defendant on behalf of Gopala Krishna Shenoy. He further submits that the said Rs.1,00,000/- was agreed to be adjusted towards the sale consideration by the parties when the agreement of sale dated 12/1/1990 executed in favour of this defendant. This defendant has also paid money at various times after the execution of the agreement of sale dated 12/1/1990 to the 1st defendant and her husband at the 40 O.S.No.15550/2003 request of the husband of the 1 st defendant towards the sale consideration. The defendant No.4 denied that the money paid was paltry as alleged by the 1 st defendant. The defendant No.4 denied that no amount was paid towards the sale consideration under the agreement of sale dated 12/1/1990. The defendant No.4 denied that no payments were made with regard to the transaction covering the alleged sale agreement between this defendant and the defendant No.1. The defendant No.4 submits that a sum of Rs.1,00,000/- was paid on the day of the agreement dated 12/1/1990. Defendant No.4 denied that possession of the property was not delivered. He further submits that subsequent to the execution of the agreement of sale the 1 st defendant had handed over the possession of the suit schedule property to this defendant and the same is stated in the affidavit executed by 1st defendant on 29/1/2009. The defendant No.4 denied that he has played fraud on the 1stt defendant and her husband and has obtained the agreement 41 O.S.No.15550/2003 of sale dated 12/1/1990 by playing trick that the said agreement was in continuation of the earlier agreement and took the defendant No.1 and her husband to the office of Sub registrar while obtaining the registered agreement of sale without disclosing the fact. Defendant No.4 denied that on 29th January 1992 the said P. Satish Pai called upon defendant No.1 on the pretext he will complete the sale transaction as agreed upon and induced defendant No.1 to sign several papers. Defendant No.4 further denied that he has stage managed the entire show with some of his followers in such a way that defendant No.1 and her husband were confused and signed the papers on the inducement made by P. Satish Pai as if he was taking signatures on the memorandum of understanding. Defendant No.4 further denied that in the guise of obtaining signatures on Memorandum of Understanding the said P. Satish Pai might have taken signature of defendant No.1 and her husband as an attestor on the G.P.A. in the name of R. 42 O.S.No.15550/2003 Venkatesh. The defendant No.4 further submits that the document produced by plaintiffs dated 29/1/1992 stated to be an affidavit clearly shows fraud played by P. Satish Pai and his followers. The defendant No.4 submits that the 1 st defendant has signed all the papers after her husband has read and understood what was written in the documents and after he discussed the same with his wife, the 1 st defendant herein. Defendant No.4 submits that 1st defendant has not denied the signatures of her husband or herself on any of the documents but only submitted that the same was obtained by fraud and inducement without exactly spelling out the inducement for obtaining the signatures which goes to show that there was no fraud or inducement of any sort for signing the papers and transaction was fair and square one. Defendant No.4 further denied that at the time of taking signatures on the memorandum of understanding he has obtained signatures of the defendant No.1 on blank stamp papers of Rs.100/- and that the document was not sworn and 43 O.S.No.15550/2003 the said document was clear case of fraud and manipulation done by the P. Satish Pai and his followers. Defendant No.4 further denied that defendant No.1 is not aware of R. Venkatesh or his whereabouts and R. Venkatesh is a creation of said P. Satish Pai in order to maneuver by said P. Satish Pai and executing of the said affidavit is not disclosed in earlier proceedings before revenue authorities. The defendant No.4 submits that no fraud is played on the 1 st defendant nor was she manipulated in and way for any purpose. The defendant No.4 further submits that this defendant had paid entire sale consideration to 1 st defendant and her husband and when plaintiffs were nominated by this defendant for registration of the sale deed in their names the 1st defendant and her husband demanded further amount and that is the reason why the plaintiff had to pay further sum of Rs.3,00,000/- by way of 4 pay orders for Rs.75,000/- each in favour of the 1 st defendant. The 1st defendant with ulterior motives not disclosed the receipt of the said money 44 O.S.No.15550/2003 from plaintiffs. The defendant No.4 denied that P. Satish Pai and Gopala Krishna Shenoy have not acted upon the earlier agreement of sale dated 1/10/1988. Defendant No.4 submits that the agreement of sale dated 12/1/1992 is pursuant to and in continuation of the agreement of sale executed in favour of Gopala Krishna Shenoy as the amounts paid under the first agreement of sale was adjusted towards the sale consideration to be paid under the second agreement of sale dated 12/1/1992 at the behest of and on an understanding between the 1st defendant and her husband and this defendant. The defendant No.4 denied that possession was never delivered to him by the 1 st defendant in pursuance of the said agreement of sale and as per the memorandum of understanding sum of Rs.1,30,000/- was still continued and that the same will be paid by this defendant or his power of attorney holder R. Venkatesh within six months. The defendant No.4 submits that there is no memorandum of understanding as claimed by the 1 st defendant. The 1st 45 O.S.No.15550/2003 defendant has repeatedly spoken of a memorandum of understanding without mentioning any details of the same or when the same was executed only to confuse this court and to deviate and distract the enquiry. The defendant No.4 denied that the terms and conditions of the agreement were not complied and that this defendant has maneuvered things in such a way that the said R. Venkatesh was his power of attorney holder and he was executing power of attorney in faour of R. Venkatesh to represent him in all the transactions with defendant No.1 and thus he has confused the whole issue and taken the signatures of the defendant No.1 and her husband on several papers and thus the whole transaction is resultant fraud placed by this defendant on the 1 st defendant. The defendant No.4 further denied that the transactions never took place and never completed and as such the same is void transaction in the eye of law and as such does not bind the defendant No.1 or her husband. The defendant No.4 further submits that defendant No.1 and her husband well 46 O.S.No.15550/2003 aware of Mr. R. Venkatesh and it is neither case of impersonation or pseudo transaction of this defendant. The 1st defendant has also executed a general power of attorney in favour of the said R. Venkatesh and the same is a registered document. She has neither challenged the same nor cancelled the same. The sale deeds executed in favour of plaintiffs are not sham deed and the same are binding on the 1st defendant and her husband. The plaintiffs have made payments to the 1st defendant through pay orders and the details of the same are mentioned in the sale deed and it is not manipulation of this defendant. The sale deed executed in favour of the plaintiffs are not sham documents and they are valid and binding on the 1st defendant and her husband and she cannot deny execution of the same. Defendant No.4 denied the allegations made in para 10(a) of counter claim of defendant No.1 that plaintiffs and one P. Satish Pai were in course of collusion in fabricating documents pertaining to the suit schedule property and the documents are resultant of 47 O.S.No.15550/2003 fraud played by P. Satish Pai on defendant No.1 and transactions are being made in the name of fictitious persons. If the person named R. Venkatesh is fictitious then the question of impleading the said person would not arise the 1st defendant would not have impleaded him as a party. defendant No.4 denied that there is no consensus ad idem between P. Satish Pai and 1 st defendant in respect of agreement of sale dated 12/1/1990 and the general power of attorney dated 29/1/1992 and the alleged execution of the affidavit and memorandum of understanding and that the entire transaction is sham transaction and the same is ovoid and illegal in the eye of law and the same is not binding on the defendant No.1. The defendant No.4 submits that the documents are not spurious documents as alleged by the defendant No.1 and the same has been executed by power of attorney holder who had valid power to execute the sale deed. Hence the sale deed is valid and binding on the 1 st defendant. The 1st defendant executed the sale deed in 48 O.S.No.15550/2003 favour of the 2nd and 3rd defendant and she had no subsisting right, title or interest in or over the suit schedule property and hence could not have conveyed any right, title or interest to the 2nd and 3rd defendant. The defendant No.4 denied that plaintiff has in collusion with Satish Pai impersonated R. Venkatesh in order to play fraud on defendant No.1 and manipulated things and created documents in their favour in order to make wrongful gain and on the contrary defendant No.1 is trying to make wrongful gain at the cost of plaintiffs and this defendant. Defendant No.4 further submitted that on the day the 1 st defendant executed sale deed in favour of 2 nd and 3rd defendant she was no longer the owner of the suit schedule property and as such had no manner of right, title or interest in or over the suit schedule property to enter into any kind of transaction and as such the sale deeds executed in favour of the 2nd and 3rd defendant are void and not binding on the plaintiff or this defendant. Defendant No.4 further 49 O.S.No.15550/2003 submitted that this defendant was put in possession way back in the year 1992 and such possession of the property vested within this defendant till the execution of the sale deed in favour of the plaintiff when the plaintiffs were put in possession of the same. There is no question of invading on the possession of the defendant No.2 and 3. Defendant No.4 submits that 1st defendant and her husband received money towards the sale consideration of the property and executed agreement of sale general power of attorney and affidavit and now she cannot go back on those documents. The question of limitation does not arise in this case as periodically the plaintiff and her husband have been receiving money from this defendant towards the sale consideration of the suit schedule property. In all the 1 st defendant has received a sum of Rs.3,50,000/- towards the sale consideration and the same was paid up till the year 1991 and now she cannot say that the power of attorney is not coupled with interest. The defendant No.4 submits that 50 O.S.No.15550/2003 the 1st defendant is in fact seeking cancellation of the sale deed executed in favour of plaintiffs and hence liable to pay court fee on the said relief. The suit of the plaintiffs be decreed as prayed for and the reliefs sought for by the 1 st defendant be rejected.
13. The defendant No.5 has filed his written statement denying all the material averments made in the written statement / counter claim filed by defendant No.1 and further contended that he is not a necessary party to the suit and the suit against him may be dismissed. The defendant No.1 impleaded him only to harass and humiliate this defendant. The defendant No.5 submits that he is only a power of attorney holder and in his capacity as power of attorney holder he has executed the sale deed in favour of the plaintiffs. He has no interest either in plaintiffs or the 1 st defendant or the suit schedule property. The defendant No.5 further submits that 1st defendant agreed to sell suit schedule 51 O.S.No.15550/2003 'C' property to defendant No.4 for a valuable sale consideration of Rs.3,50,000/- under registered agreement of sale dated 12/1/1990. The 4 th defendant has paid a sum of Rs.1,00,000/- by way of demand draft and has paid further sum of Rs.2,50,000/- in favour of defendant No.1 and her husband Sri B.S. Adinarayana Reddy. Defendant No.5 further submitted that originally the 1 st defendant had entered into agreement of sale with one Gopalakrishna Shenoy and a sum of Rs.1,00,000/- was paid by 4th defendant on behalf of Sri Gopalakrishna Shenoy and the same was adjusted when 4th defendant entered into an agreement of sale with 1st defendant to purchase the suit schedule property. In all 4th defendant has paid 1st defendant a sum of Rs.3,50,000/- and there is nothing due to be paid to the 1st defendant towards sale consideration. The 4 th defendant has paid entire sale consideration amount and as only formality of registering the sale deed remained, 1 st defendant executed power of attorney in his favour to 52 O.S.No.15550/2003 complete the formalities of registering the sale deed either in the name of the purchaser or his nominees. The said power of attorney is a registered document and the 1 st defendant cannot go beyond the said document now. The 1 st defendant has neither cancelled the power of attorney nor challenged the sale deed executed by Power of Attorney Holder and neither has she challenged the agreement of sale executed by this defendant. The 1st defendant's husband is very familiar to this defendant and he is well aware that this defendant is neither a fictitious person or a benami. Defendant No.5 further submits that on the strength of the said registered power of attorney he has executed registered the sale deed dated 16/5/1992 in respect of the suit schedule property in favour of the plaintiffs. The plaintiffs have also paid the 1st defendant a further sum of Rs.3,00,000/- as demanded by the 1st defendant and her husband by way of pay orders. The 1st defendant has received money more than the agreed sale consideration. After receiving the excess 53 O.S.No.15550/2003 amount and after the sale deed was registered in favour of plaintiffs as there was some discrepancies in the mutation register with regard to the survey number the 1 st defendant and her husband with malafide intention and to unlawfully enrich themselves have sold the suit schedule property in favour of the 2nd and 3rd defendant. As on the date of executing the sale deed in favour of the 2 nd and 3rd defendants the 1st defendant had no subsisting right, title or interest in the suit schedule property and consequently the defendants No. 2 and 3 also do not derive any right, title or interest in the suit schedule property.
14. The defendant No.5 further submits that one B.S. Suranarayana Reddy has filed suit for partition in O.S.No.1223/2009 against 1st defendant and her husband Adinarayana Reddy among other defendants for partition of only the suit schedule property without even a hint of whether there are other properties for partition or how the 54 O.S.No.15550/2003 schedule property becomes the joint family property of brothers of Mr.Adinarayana Reddy. This defendant is also made a party to the said suit. The 1 st defendant and her husband B.S. Adinarayana Reddy and his family have the habit of litigating to enrich themselves at the cost of purchasers of the land and other concerned persons. The husband of 1st defendant is an educated person and retired government employee and he is in the habit of reading each and every line written in a document before he or the 1 st defendant signs the same and any averment that they are not aware of the clauses in a document or signatures were obtained on blank papers are allegations concocted for the sake of setting up a defence in this suit and for defrauding the plaintiffs and him. The defendant No.5 concedes the plaint averments and submits that the suit of the plaintiffs may be decreed as prayed for.
55
O.S.No.15550/2003
15. The defendant No.5 denied the averments of the written statement filed by defendant No.1 that defendant No.4 is waging pseudo war against defendant No.1 and he [defendant No.4] is the root cause for landing the defendant No.1 in this disastrous condition. The defendant No.5 denied that plaintiffs have suppressed the material facts and filed the present suit in order to make wrongful gain. The defendant No.5 denied that there was no consensus ad idem between defendant No.1 and P. Sathish Pai. The 1 st defendant has received the sale consideration from the 4 th defendant and 1st defendant has admitted to the same in para 4 and 5 of her written statement. The defendant No.5 further denied that 4th defendant is a great manipulator and do things in his favour at any cost and that the instant proceedings are resultant product of the fraud played by 4 th defendant. He further submits that defendant No.4 is a builder. The defendant No.5 further submits that husband of 1st defendant is very shrewd person and will not allow 1 st 56 O.S.No.15550/2003 defendant to be induced into any kind of a transaction much less an agreement of sale. The defendant No.5 submits that a sum of Rs.1,00,000/- was paid on the date of agreement of sale dated 12/1/1990. The defendant No.5 denied that possession of the property was not delivered. He further submits that subsequent to the execution of the agreement of sale the 1st defendant had handed over the possession of the suit schedule property to 4th defendant and the same is stated in the affidavit executed by 1st defendant on 29/1/2009.
3. The defendant No.5 denied that he has played fraud on the 1st defendant and her husband and has obtained the agreement of sale dated 12/1/1990 by playing trick that the said agreement was in continuation of the earlier agreement and took the defendant No.1 and her husband to the office of Sub registrar while obtaining the registered agreement of sale without disclosing the fact. Defendant No.5 denied that on 29th January 1992 the said P. Satish Pai called upon 57 O.S.No.15550/2003 defendant No.1 on the pretext he will complete the sale transaction as agreed upon and induced defendant No.1 to sign several papers. Defendant No.5 further denied that he has stage managed the entire show with some of his followers in such a way that defendant No.1 and her husband were confused and signed the papers on the inducement made by P. Satish Pai as if he was taking signatures on the memorandum of understanding. The defendant No.5 further denied that in the guise of obtaining signatures on Memorandum of Understanding the said P. Satish Pai might have taken signature of defendant No.1 and her husband as an attestor on the G.P.A. in the name of R. Venkatesh. The defendant No.5 further submits that the document produced by plaintiffs dated 29/1/1992 stated to be an affidavit clearly shows fraud played by P. Satish Pai and his followers. The defendant No.5 submits that the 1 st defendant has signed all the papers after her husband has read and understood what was written in the documents and 58 O.S.No.15550/2003 after he discussed the same with his wife, the 1 st defendant herein. The defendant No.5 submits that 1 st defendant has not denied the signatures of her husband or herself on any of the documents but only submitted that the same was obtained by fraud and inducement without exactly spelling out the inducement for obtaining the signatures which goes to show that there was no fraud or inducement of any sort for signing the papers and transaction was fair and square one. Defendant No.5 further denied that at the time of taking signatures on the memorandum of understanding he has obtained signatures of the defendant No.1 on blank stamp papers of Rs.100/- and that the document was not sworn and the said document was clear case of fraud and manipulation done by the P. Satish Pai and his followers. The defendant No.5 further denied that defendant No.1 is not aware of R. Venkatesh or his whereabouts and R. Venkatesh is a creation of said P. Satish Pai in order to maneuver by said P. Satish Pai and executing of the said affidavit is not disclosed in 59 O.S.No.15550/2003 earlier proceedings before revenue authorities. The defendant No.5 submits that no fraud is played on the 1 st defendant nor was she manipulated in and way for any purpose. The defendant No.5 further submits that 4 th defendant had paid entire sale consideration to 1 st defendant and her husband defendant No.5 denied that P. Satish Pai and Gopala Krishna Shenoy have not acted upon the earlier agreement of sale dated 1/10/1988. The defendant No.5 submits that the agreement of sale dated 12/1/1992 is pursuant to and in continuation of the agreement of sale executed in favour of Gopala Krishna Shenoy as the amounts paid under the first agreement of sale was adjusted towards the sale consideration to be paid under the second agreement of sale dated 12/1/1992 at the behest of and on an understanding between the 1st defendant and her husband and P. Satish Pai. Defendant No.5 denied that possession was never delivered to 4th defendant by the 1st defendant in pursuance of the said agreement of sale and as per the 60 O.S.No.15550/2003 memorandum of understanding a sum of Rs.1,30,000/- was still continued and that the same will be paid by this defendant or his power of attorney holder this defendant within six months. The defendant No.5 submits that there is no memorandum of understanding as claimed by the 1 st defendant. The 1st defendant has repeatedly spoken of a memorandum of understanding without mentioning any details of the same or when the same was executed only to confuse this court and to deviate and distract the enquiry. The defendant No.5 denied that the terms and conditions of the agreement were not complied and that this defendant has maneuvered things in such a way that this defendant was his power of attorney holder and he was executing power of attorney in favour of this defendant to represent him in all the transactions with defendant No.1 and thus he has confused the whole issue and taken the signatures of the defendant No.1 and her husband on several papers and thus the whole transaction is a resultant fraud placed by this 61 O.S.No.15550/2003 defendant on the 1st defendant. The defendant No.5 further denied that the transactions never took place and never completed and as such the same is void transaction in the eye of law and as such does not bind the defendant No.1 or her husband. The defendant No.5 further submits that defendant No.1 and her husband well aware of this defendant and it is neither a case of impersonation or pseudo transaction of 4th defendant. The 1st defendant has also executed a general power of attorney in favour of this defendant and the same is a registered document. She has neither challenged the same nor cancelled the same. The sale deeds executed in favour of plaintiffs are not sham deed and the same are binding on the 1 st defendant and her husband. The plaintiffs have made payments to the 1 st defendant through pay orders and the details of the same are mentioned in the sale deed and it is not manipulation of this defendant. The sale deed executed in favour of the plaintiffs are not sham documents and they are valid and binding on 62 O.S.No.15550/2003 the 1st defendant and her husband and she cannot deny execution of the same. The defendant No.5 denied the allegations made in para 10(a) of counter claim of defendant No.1 that plaintiffs and one P. Satish Pai were in course of collusion in fabricating documents pertaining to the suit schedule property and the documents are resultant of fraud played by P. Satish Pai on defendant No.1 and transactions are being made in the name of fictitious persons. If the person named R. Venkatesh is fictitious then the question of impleading this defendant would not arise the 1st defendant would not have impleaded this defendant as party. The defendant No.5 denied that there is no consensus ad idem between P. Satish Pai and 1st defendant in respect of agreement of sale dated 12/1/1990 and the general power of attorney dated 29/1/1992 and the alleged execution of the affidavit and memorandum of understanding and that the entire transaction is sham transaction and the same is ovoid and illegal in the eye of law and the same is not 63 O.S.No.15550/2003 binding on the defendant No.1. The defendant No.5 submits that the documents are not spurious documents as alleged by the defendant No.1 and the same has been executed by this defendant as power of attorney holder having valid power to execute the sale deed. Hence the sale deed is valid and binding on the 1st defendant. The 1st defendant executed the sale deed in favour of the 2nd and 3rd defendant and she had no subsisting right, title or interest in or over the suit schedule property and hence could not have conveyed any right, title or interest to the 2 nd and 3rd defendant. Defendant No.5 denied that plaintiff has in collusion with Satish Pai impersonated this defendant in order to play fraud on defendant No.1 and manipulated things and created documents in their favour in order to make wrongful gain and on the contrary defendant No.1 is trying to make wrongful gain at the cost of plaintiffs and this defendant. Defendant No.5 further submitted that on the day the 1 st defendant executed sale deed in favour of 2 nd and 3rd 64 O.S.No.15550/2003 defendant she was no longer the owner of the suit schedule property and as such had no manner of right, title or interest in or over the suit schedule property to enter into any kind of transaction and as such the sale deeds executed in favour of the 2nd and 3rd defendant are void and not binding on the plaintiff or him. The defendant No.5 further submitted that 4th defendant was put in possession way back in the year 1992 and such possession of the property vested within 4 th defendant till the execution of the sale deed in favour of the plaintiff when the plaintiffs were put in possession of the same. There is no question of invading on the possession of the defendant No.2 and 3. The defendant No.5 submits that 1st defendant and her husband received money towards the sale consideration of the property and executed agreement of sale general power of attorney and affidavit and now she cannot go back on those documents. The question of limitation does not arise in this case as periodically the plaintiff and her husband have been receiving monies from 65 O.S.No.15550/2003 4th defendant towards the sale consideration of the suit schedule property. In all the 1 st defendant has received a sum of Rs.3,50,000/- towards the sale consideration and the same was paid up till the year 1991 and now she cannot say that the power of attorney is not coupled with interest. Defendant No.5 submits that the 1 st defendant is in fact seeking cancellation of the sale deed executed in favour of plaintiffs and hence liable to pay court fee on the said relief. The suit of the plaintiffs be decreed as prayed for and the reliefs sought for by the 1st defendant be rejected.
4. On the basis of above pleadings following Issues are framed:-
:ISSUES:
(1) Whether the plaintiffs prove that 1st defendant has executed a legally valid registered General Power of Attorney in favour of defendant No.5 on 29/01/1992?
(2) Whether the plaintiff prove that, the Sale Deed executed by 1st defendant in favour 66 O.S.No.15550/2003 of 2nd and 3rd defendants dated:
24/10/2002 is void and does not bind them?
(3) Whether the Plaintiffs prove their lawful possession and enjoyment of the suit schedule propertied as on the date of the suit?
(4) Whether defendant No.1 proves that there was no consensus ad-didum in respect of Agreement of Sale dated:
12/01/1990 between herself and defendant No.4?
(5) Whether the 1st defendant proves that the Sale deed dated: 16/05/1992 executed in favour of plaintiffs is sham, illegal and void?
(6) Whether the reliefs sought for in suit are barred by limitation, as contended by defendant No.1?
(7) Whether the valuation of the suit and payments of court fee is not proper, as contended by defendant No.1?
(8) Whether the counter-claim relief of defendant No.1 is barred by time?
(9) Whether the valuation of counter-claim and payment of court fee is proper?67
O.S.No.15550/2003 (10) Whether the Plaintiffs are entitled for declarations as sought for?
(11) Whether defendant No.1 is entitled for the declaration as sought for?
(12) Whether the plaintiffs are entitled for the relief of Permanent Injunction, as sought for?
(13) What decree or order?
5. The plaintiff No.2 examined as PW1 and he got marked documents at ExP1 to ExP34. The plaintiff also got examined witnesses Sri Praveen Pai as PW2, Mr. G. Muniyappa as PW3 and Mr. B.H. Narayanaswamy as PW4 and closed the plaintiff side evidence. On the other hand the 3rd defendant Mr. G. Gopala Reddy examined as DW1 and also got examined 2nd defendant as DW2 and got marked documents at ExD1 to ExD23 and closed defendant side of evidence. Perused the records.
6. My finding on the above issues are:-
Issue No.1) In Affirmative 68 O.S.No.15550/2003 Issue No.2) In Affirmative Issue No.3) In Affirmative Issue No.4) In Negative Issue No.5) In Negative Issue No.6) In Negative Issue No.7) In Negative Issue No.8) In Negative Issue No.9) In Affirmative Issue No.10) In Affirmative Issue No.11) In Negative Issue No.12) In Affirmative Issue No.13) See final Order for following:
:REASONS:
7. Issue No. 1 to 3, 10 and 12:-
The plaintiff No.2 Mr. Suresh Bhatia S/o. Sri M.M. Bhatia, has filed his affidavit in lieu of examination in chief 69 O.S.No.15550/2003 as PW1 and deposed evidence that Smt. Anusuya, the 1 st defendant was the absolute owner of the land bearing Sy. No. 44/2B/2 measuring 1 Acre 14 Guntas of Hebbal Village, Kasaba Hobli, Bangalore North Taluk. He further deposed that 1st defendant agreed to sell the schedule property in favour of Sri. Satish Pai and he has made payments to the defendant and or her husband Sri. B.S. Adinarayana Reddy i.e., on 19/10/1989 Rs.10,000/- by cheque No.895060 drawn on Canara Bank, on 19/10/1989 Rs.10,000/- by cheque No. 895079, on 25/10/1989 Rs.20,000/- by cheque No. 895088, on 29/10/1989 Rs.15,000/- by cheque No. 895089, on 04/11/1989 Rs.15,000/- by cheque No. 895090, on 07/11/1989 Rs.15,000/- by cheque No. 895091, on 09- 10/11/1989 Rs.15,000/- by cheque No. 895092, on 15/11/1989 Rs.15,000/- by cheque No. 895093 issued to Smt P. Anusuya. He further deposed that they made further payments on 02/04/1990 Rs.5,000/- by cheque No.1607051, on 02/04/1990 Rs.5,000/- by cheque No.1607052, on 70 O.S.No.15550/2003 08/06/1990 Rs.2,500/- by cheque No.156860, on 11/06/1990 Rs.2,500/- by cheque No.156861, on 16/09/1990 Rs.5,000/- by cheque No. 177860 issued to Sri. Adinarayana Reddy. He further deposed that on 03/12/1990 they issued cheque bearing No.1512654 for Rs.10,000/- to Smt. P. Anusuya and on 25/02/1991 Rs.10,000/- by cheque No.858767, on 11/04/1991 Rs.5,000/- by cheque No.873369, on 17/07/1991 Rs.5,000/- by cheque No.873370, on 31/08/1991 Rs.10,000/- by cheque No.875386, on 19/04/1991 Rs.5,000/- by cheque No.864908, on 01/12/1990 Rs.2,000/- by cash, on 01/12/1990 Rs.10,000/- by cash on 08/08/1990 Rs.10,000/- by cash, on 19/10/1989 Rs.10,000/- by cheque No.895079 issued to Sri. Adinarayana Reddy. He further deposed that for purpose of family commitments and living necessities Smt. Anusuya entered into a registered agreement of sale with Sri. Satish Pai, dated 12/01/1990 agreeing to sell the suit schedule property for a sum of Rs. 71
O.S.No.15550/2003 3,50,000/-. A sum of Rs.1,00,000/- was paid to the 1 st defendant by a demand draft and it was agreed that the entire remaining balance of the sale consideration should be paid only at the time of regular registration of the Sale Deed and also agreed that the Sale Deed should be registered in the name of Sri. Satish Pai or his nominee. It was represented by the 1st defendant that she has not alienated the schedule property by way of a sale, gift, mortgage, lease etc., and that there are no claims on the schedule property. At the instruction of Sri. Satish Pai, the 1 st defendant executed a registered power of attorney on 29/01/1992 in favour of Sri. R. Venkatesh [defendant No.5]. It was represented in the power of attorney by the 1 st defendant that she had entered into an agreement to sell the schedule property to one Sri. P. Satish Pai or his nominees and that she had received a sum of Rs.2,20,000/- as sale consideration and that she has authorized Sri. R. Venkatesh to conclude the transaction. The 1st defendant has also 72 O.S.No.15550/2003 executed a sworn affidavit stating that she has executed an agreement of sale dated: 12/01/1990 with Sri. Satish Pai and has delivered vacant possession of the property to Sri. Satish Pai and that she had executed a power of attorney in favour of R.Venkatesh, which under any circumstances is not irrevocable. The plaintiffs further submit that acting as the power of attorney holder of Smt. Anusuya, Sri, R, Venkatesh registered the property in favour of Sri. Suresh Bhatia on 01/08/1992 in respect of portion of Sy. No.44/2B2 to an extent of 25 Guntas bounded on the East by portion of the same Sy.No. earlier belongs to Smt. Anusya and sold to Sri Sunil Bhatia, West by Kodigehally boundary; North by Sy.No. 44/A and South by Sy.No. 44/2B/1, on 10/05/1992 which was duly registered under document dated 01/08/1992. He further submits that the remaining portion of the Sy. No. 44/2B/2 which is the suit schedule 'B' property sold to Sri. Sunil Bhatia on 16/05/1992 under registered document. The said persons Sri. Suresh Bhatia and Sri Sunil 73 O.S.No.15550/2003 Bhatia are the nominees of Sri. P. Satish Pai. They have been in actual possession of the property. He further deposed that Sri Sunil Bhatia has paid Rs.1,50,000/- by way of two Pay Orders bearing No.910 and 911, dated:
29/04/1992 for Rs.75,000/- each. The he [PW1] has paid Rs.1,50,000/- by way of two Pay Orders bearing No.912 and 913, dated: 29/04/1992 for Rs.75,000/- each. Excess amount has been received by defendant No.1. The said documents were found to be undervalued and therefore sent for valuation. Thereafter a certified copy of the registered sale deed was obtained from the office of the Sub-Registrar, Bangalore North Taluk. The names of the plaintiffs entered in the mutation register. While making entry of the deed of sale, it is mentioned as 784/93-94 and 785/93-94 instead of the correct sale deed numbers 814/1992-93 and 815/1992-
93. The entry pertains to the certified copy of the sale deed.
The originals were registered and numbered as aforesaid. The error in noting the particulars of the sale deed is that of 74 O.S.No.15550/2003 the village accountant. Taking advantage of the error, which is inconsequential, Smt. Anusuya made an application before the Tahasildar for rectification of the entries in the mutation register with a view to make a wrongful gain. The Tahasildar by his order in Case No.RRT(D)/04/99-2000, dated: 08/04/2002 directed a change in the entries in the relevant records and directed to approach the Civil Court. The Tahasildar erred in not accepting the General Power of Attorney and holding the R. Venkatesh was person unknown and that he did not have any right to execute the sale deed in favour of the plaintiffs. Against the order of the Tahasildar, an appeal was filed before the Assistant Commissioner, in RA/154/2002-03. The Assistant Commissioner confirmed the order of the Tahasildar vide order dated: 21/02/2003 in RA No.14/1997-98 before the Assistant Commissioner and RA No.154/2002-03 before the H.R.No.1/1993-94 and H.R.No.2/1993-94 before the Tahasildar the 1st defendant contended that she has not executed the power of attorney in 75 O.S.No.15550/2003 favour of Sri. R. Venkatesh. She has also denied the registration of the said document. Sri. Satish Pai had contract of sale in his favour and the power of attorney is in pursuance of the agreement. The power of attorney is coupled with interest. The 1st defendant's husband has also attested power of attorney. Against the order of the Assistant Commissioner, a revision petition has been filed before the Deputy Commissioner, Urban District, Bangalore in Revision No.186/02-03. An order of stay of the orders passed by the learned Assistant Commissioner has been passed. The 1st defendant knew about the change in the mutation entries and she kept quiet. After a lapse of 8 years, the application is made for rectification of entries. The defendants No.1, 2 & 3 have colluded together and a sale deed allegedly has been executed by the defendant No.1 in favour of K.P. Patrick Laurance and G. Gopal Reddy [defendants No. 2 and 3 respectively]. Having received the entire consideration and having executed the power of 76 O.S.No.15550/2003 attorney, which is also duly registered in favour of R. Venkatesh, the 1st defendant in collusion with defendants No. 2 and 3 illegally got the sale deed executed. Smt. Anusuya [defendant No.1] did not have any right to do so. Sri. R. Venkatesh acting as a power of attorney holder of Smt. Anusuya has executed the sale deed and has registered the same. It is settled law that an earlier registered deed prevails over any document. The sale deed in favour of the plaintiff prevails over the sale deed of the defendants No. 2&3. The sale in favour of the plaintiffs in much earlier to the alleged sale deed executed by the 1 st defendant in favour of defendants No. 2&3. He further deposed that the sale deed executed by the 1st defendant in favour of defendants No. 2&3 is only to make a wrongful gain.
8. The PW1 further deposed that they read a notification in the Deccan Herald newspaper dated:
23/12/2002 to the effect that an extent of 300 Sq. Mtrs., Sy. 77
O.S.No.15550/2003 No. 44/2B/2 was notified for acquisition in respect of the development of National Highway No.7. They have filed their objections to the same. He further deposed that the 1 st defendant has not challenged the sale deed executed by the 1st defendant in their favour. She did not have any right, title interest or possession after 24/10/1992. The sale deeds relied upon are abinitio void and is not admitted by the plaintiffs. Plaintiffs further submit that a complaint before the Chief Metropolitan Magistrate in PCR No. 3620/2003 and PCR 3621/2003 lodged. Defendants tried to enter upon the land on 31/03/2003 and the plaintiffs resisted them. They approached the police but they were advised to approach the civil court. Hence the they have filed the suit.
9. The PW1 further deposed denying the allegations made by defendant No.1 in para 2 of the written statement that Sri Satish Pai is waging a pseudo war against defendant No.1 through plaintiffs. He also denied that Sri Satish Pai is 78 O.S.No.15550/2003 the root cause for landing the defendant No.1 to disastrous condition. He also emphatically denied the allegation made in para 3 of the written statement of defendant No.1 that Sri Satish Pai is a great manipulator and do things in his favour at any cost and instant proceedings are resultant product of fraud played by Sri Satish Pai. He further deposed that there was no consensus between the defendant No.1 and P. Satish Pai, who is a developer and a builder. He further deposed and denied that said P. Satish Pai induced defendant No.1 to enter into an agreement of sale dated 31/10/1988 with Gopala Krishna Shenoy, his brother in law to sell an extent of 1 acre 12 guntas out of Sy.No.44/2B of Hebbal village for a sum of Rs.6,25,000/- and it was further agreed that if there was any variation in the extent, the sale consideration shall be reduced or increased accordingly. The property bearing Sy.No.44/2B totally measures 1 acre 15 guntas. He further deposed that a sum of Rs.1,00,000/- was paid under the said agreement by the said P. Satish Pai on behalf of his brother 79 O.S.No.15550/2003 in law Rs.25,000/- through cash and Rs.75,000/- through cheque drawn on Karnataka Bank dated 1/10/1988 bearing No.0824012. As per the agreement the said purchaser was required to pay within two months from the date of the said agreement a sum of Rs.2,25,000/-. However, neither the said Gopalakrishna Shenoy or P. Satish Pai complied with the terms and conditions of the said agreement are all distorted version of facts and not admitted.PW1 further deposed and denied the allegation of 1st defendant in his written statement that on several occasions on installments paltry sums being paid by the said P. Satish Pai subsequent to the said agreement of sale dated 1/10/1988 to the defendant No.1. PW1 further denied averments made by the defendant that the plaintiffs twisted the facts to project that the payments were made in installments as per agreement dated 12/1/1990 between the defendant No.1 and P. Satish Pai. PW1 further deposed and denied the averments made by defendant No.1 that no payments were made with regard 80 O.S.No.15550/2003 to the transaction covering the alleged sale agreement and a sum of Rs.1,00,000/- only was paid under the agreement dated 12/1/1990 by P.Satish Pai. PW1 further deposed and denied the averments made by defendant No.1 that plaintiffs are guilty of suppresio vari and suggestio falsi and also denied that for the reason of clause No.11 in the agreement of sale dated 12/1/1990 the possession was not delivered which reads that the vendor has this day delivered all the relevant documents to the purchaser and possession of the property will be delivered at the time of registration of the sale deed. PW1 further deposed and denied the averments made by defendant No.1 that they have twisted the facts and narrated the same to suit their convenience and P. Satish Pai played fraud on defendant No.1 and her husband and obtained agreement of sale dated 12/1/1990 stating that the said agreement was in continuation of the earlier agreement and obtained registered agreement of sale without disclosing the fact. PW1 further deposed and denied the averments 81 O.S.No.15550/2003 made by defendant No.1 that on 29/01/1992 the said P. Satish Pai called upon defendant No.1 on the pretext he will complete the sale transaction as agreed upon and induced defendant No.1 to sign several papers and defendant No.1 and her husband confused and signed on the papers as if he was taking the signature on the memorandum of understanding. PW1 further deposed and denied the averments made by defendant No.1 that P. Satish Pai might have taken signature of the defendant No.1 and her husband as an attestor, on the general power of attorney in the name of R. Venkatesh and at the time of taking signatures on the memorandum of understanding he has obtained signatures of the defendant No.1 on blank stamp paper of Rs.100/-. PW1 further deposed and denied the averments made by defendant No.1 that defendant No1 is not at all aware of R. Venktesh or his whereabouts and plaintiffs never disclosed the execution of the said affidavit anywhere in earlier proceedings before Revenue Authorities which establishes 82 O.S.No.15550/2003 the gravity of fraud and manipulation by P. Satish Pai. PW1 further deposed and denied the averments made by defendant No.1 that they have not disclosed anywhere about the payment of amounts by installments by P. Satish Pai or execution of the affidavit and Memorandum of Understanding and they have stated before the Revenue authorities that the entire sale consideration was paid under the said agreement dated 4/1/1990. PW1 further deposed and denied the averments made by defendant No.1 that there was no agreement on 4/1/1990 at all and the question of payment of entire amount does not arise and plaintiffs have taken different stands at different places. PW1 further deposed and denied the averments made by defendant No.1 that P. Satish Pai or the said Gopala Krishna Shenoy have not acted upon under the earlier agreement of sale dated 1/10/1988 and possession was never delivered to by defendant No.1 in pursuance of the said agreement of sale dated 12/1/1990 and further it was agreed as per the said 83 O.S.No.15550/2003 memorandum of understanding, a sum of Rs.1,30,000/- was still continued and that will be paid by the said P. Satish Pai to his power of attorney holder R. Venkatesh within six months, and they have not complied with the said terms and conditions. PW1 further deposed and denied the averments made by defendant No.1 that the two sale deeds referred to in the plaint is a sham transaction and the same is not binding on this defendant and the documents such as General Power of Attorney, affidavit, memorandum of understanding and subsequent alleged sale deeds are result of fraud played by P. Satish Pai on the defendant No.1.
10. PW1 further deposed and denied the averments made by defendant No.1 that there is no consensus between P. Satish Pai and defendant No.1 in respect of alleged agreement of sale dated 12/1/1990 and GPA dated 29/1/1992 and alleged execution of memorandum of understanding and hence the same are not binding on the defendant No.1. 84
O.S.No.15550/2003 Further, PW1 deposed and denied the averments made by defendant No.1 that mutation was obtained on the strength of spurious documents and proceedings before Revenue Authorities speaks the realities and the said Authorities have rightly passed the orders in favour of defendant No.1 assessing the materials facts and proceedings initiated by plaintiffs before the revenue authorities are still pending. PW1 further deposed and denied the averments made by defendant No.1 that defendant No.1 never executed any GPA in favour of R. Venkatesh nor the same was within the knowledge of defendant No.1 and any transaction on the strength of the alleged GPA is void and sham transaction and the same is not binding on this defendant. PW1 further deposed and denied the averments made by defendant No.1 that she has exercised her ownership and executed sale deed in favour of defendants No.2 and 3 and there is no illegality or irregularity in the said transaction and Defendant No.1 has exercised her rightful ownership and title and passed on 85 O.S.No.15550/2003 the same to the defendants No. 2 and 3 and they have been put in possession of the same and the transaction between the defendants is perfectly valid and the same is in accordance with law. PW1 further deposed and denied the averments made by defendant No.1 that on the strength of spurious documents trying to invade over lawful possession of defendants No. 2 and 3 in connivance with said P. Satish Pai and his bother in law Gopala Krishna Shenoy. PW1 further deposed and denied the averments made by defendant No.1 that the transaction between defendant No.1 with P. Satish Pai was not coupled with interest or the said Gopala Krishna Shenoy and the alleged G.P.A did not create any right in favour of the alleged R. Venkatesh and the said transaction was not covered within the purview of the G.P.A. coupled with interest. The PW.1 prays to decree the suit as prayed in the plaint. PW1 got marked documents ExP1 to ExP34 in his evidence.
86
O.S.No.15550/2003
11. Plaintiffs examined one Sri Praveen Pai S/o. Late Sri Ramesh Pai as PW2. PW2 has filed his affidavit in lieu of examination in chief and deposed that his father Sri Ramesh Pai died on 07/05/2010. He can identify the signature and handwriting of his father and he has seen him while affixing his signature and writing. His father Late Sri Ramesh Pai has signed the General Power of Attorney and he can identity his signature marked as ExP3(a) in ExP3.
12. Plaintiffs have also got examined Sri G. Muiniyappa S/o. G. Muniswamappa as PW3. The PW3 has filed his affidavit evidence in lieu of examination in chief and deposed evidence that he is the owner of property bearing Sy.No.43/1B1 of Hebbala village, Kasaba Hobli, Bangalore North Taluk and in the said property he has constructed Srigandha Palace Kalyanamantapa. Sri Suresh Bhatia and Sri Sunil Bhatia are in possession of the property bearing Sy.No.44/2B2 of Hebbala village, Kasaba Hobli, 87 O.S.No.15550/2003 Bangalore North Taluk, which is fenced and there is a watchman's shed in the property of the plaintiff. To the north of his property the property of plaintiffs situated. PW3 got marked ExP31 record of rights of Sy.No.43/1B1 of Hebbala village, Kasaba Hobli, Bangalore North Taluk as the same belongs to him.
13. Plaintiffs also examined Sri B.H. Narayanaswamy S/o. Hanumegowda as PW4. PW4 has filed his affidavit in lieu of examination in chief and deposed that he is the owner of property bearing No.44/2A of Hebbala Village, Kasaba Hobli, Bangalore North Taluk and in the said property he is running a petrol bunk from several years and that towards the southern side of his property the plaintiffs Sri Suresh Bhatia and Sri Sunil Bhatia are in possession of the property by 44/2B2 of Hebbala village, Kasaba Hobli, Banglaore North taluk and the same is fenced and there is a 88 O.S.No.15550/2003 watchman's shed in the property of the plaintiff. PW4 got marked ExP32 Record of Rights of Sy.No.43/2A.
14. On the other hand the 3rd defendant Mr. Gopala Reddy S/o. Venku Reddy has deposed evidence as DW1 wherein he has stated that he know the facts of the case. Plaintiffs have filed the suit for declaration and injunction claiming that they have purchased two immovable properties shown in the suit schedule and also sought for declaration that the sale deed in respect of property jointly purchased by him [DW1] alongwith 2nd defendant as null and void. DW1 further deposed that plaintiffs are not purchasers of the suit schedule property. Before the purchase of property by him and defendant No.2, the 1 st defendant was the absolute owner of the suit schedule property and he informed DW1 that some miscreants by creating fake documents were trying to alienate the suit schedule property and therefore she had offered to sell the 89 O.S.No.15550/2003 property to him and defendant No.2. Therefore DW1 himself alongwith 2nd defendant after accumulating value of the property verified the documents of the property. At that time all the revenue documents were standing in the name of 1st defendant in accordance with law and hence they expressed their consent to purchase the property. The 1 st defendant accepted his offer and on 24/10/2002 by receiving sale consideration of Rs.28,69,000/- from them executed a registered sale deed jointly in our favour in the office of the Sub Registrar and the said sale deed is marked at ExD1. DW1 further deposed that after purchase of the suit schedule property from 1st defendant they got the revenue records transferred in their names jointly and mutated in the records. In this regard the concerned Tahsildar has passed orders dated 26/03/2003 in their favour and accordingly in the Mutation their joint names were entered and the same is marked as ExD2. He further deposed that in view of dispute after entering their names in the mutation the concerned 90 O.S.No.15550/2003 Revenue Officers had entered their names in RTC for the years 2002-2003, 2003-2004, 2004-2005, 2005-2006, 2006- 2007, 2007-2008, 2008-2009, 2009-2020, 2020-2011, 2011- 2012, 2012-2013 and in column No.12 his name and also the name of 2nd defendant K.P. Patrick Lawrence is entered. Therefore without any hesitation they submit that they are in possession of the suit schedule property. The said RTCs are at ExD3 to ExD13. He further deposed that he has paid taxes to the Revenue Authority in respect of the suit schedule property up to the year 2014-2015 and the said receipts are at ExD14 and ExD15. In view of averments made in his affidavit evidence and also the documents produced before the court he submits that they are in possession of the suit schedule property. Before purchase of the suit schedule property from 1st defendant they made a search of previous encumbrance, if any, in the concerned office of Sub Registrar and they found that for the period of 16 years from 01/04/1990 to 31/03/2004 the property was 91 O.S.No.15550/2003 in the name of 1st defendant Anasuyamma. DW1 further deposed that on further verification of encumbrance from 01/04/2004 to 31/03/2004 there were no entries in respect of sale deed in the name of 5th defendant Sathish Pai. The said encumbrance certificates in form No.15 were produced before this court as per ExD16 and ExD17. DW1 further deposed that the plaintiffs have brought this suit alleging that they are real purchasers of the suit schedule property and hence the sale deed executed by the 1 st defendant does not create any interest over the suit schedule property and not binding on them and in the light of the above contention he submits that the present suit does not fall under the scrutiny of this court. The averments made by the plaintiffs to create their rights over the suit schedule property is just like a story. In this story 1 st defendant Smt.Anusuya has executed sale agreement in favour of 5 th defendant on 12/01/1990 in respect of the suit schedule property as per ExP4 and got the same registered before the concerned Sub 92 O.S.No.15550/2003 Registrar. But to substantiate this claim made by plaintiffs they have not produced any documents before the court. If at all the 1st defendant had executed sale agreement, then the name of purchaser would have definitely found a place in the revenue records. The plaintiffs have not produced such documents before the court. Therefore, the vendor of DW1 i.e., 1st defendant has made submission in his written statement that she has not executed any document of sale agreement in favour of Satish Pai and the said document is a bogus document. Hence DW1 deposed that the evidence of plaintiffs on this aspect is not complete. DW1 further deposed that the plaintiffs have claimed that on the instruction of Sathish Pai who had got executed sale agreement from his vendor Smt. Anasuyamma they got executed GPA in favour of Sri Venkatesh on 29/01/1990 and thereafter Venkatesh had executed absolute sale deed dated 10/05/1992 and 16/05/1992 in favour of plaintiffs. DW3 further deposed that the arguments of plaintiffs on this 93 O.S.No.15550/2003 aspect is not sustainable in law because the above said suit schedule property has been conveyed in favour of plaintiffs through registered sale deeds. Immediately after knowing the information about change of khatha in the name of plaintiffs the 1st defendant approached concerned Tahsildar and lodged complaint against plaintiffs. The same was registered in RRT. The concerned Tahsildar after enquiry passed orders on 8/5/2002 and has revoked the Khatha registered in the name of plaintiffs which is produced herewith as per ExD18. DW1 further deposed that the appeal preferred by plaintiffs against the said orders of Tahsildar was dismissed by the Asst. Commissioner in R.A.No.154/2002-03 after hearing both the parties on 20/02/2003 and a copy of which is produced as per ExD19. Thereafter the revision petition filed before the Divisional Commissioner u/s.138(3) of Karnataka Land Reforms Act was also dismissed vide orders dated 20/10/2003 and a copy of which is marked as ExD20. Thereafter the plaintiffs 94 O.S.No.15550/2003 aggrieved by the orders passed by the Tahsildar, Asst. Commissioner and Divisional Commissioner, they have preferred W.P.No.55507/2003 before the Hon'ble High Court of Karnataka and the Hon'ble High Court of Karnataka after hearing both the parties dismissed the writ petition on 22/02/2004 and a copy of the said order is produced as per ExD21. DW1 further deposed that plaintiffs have claimed right over the property based on the two registered sale deeds ExP1 and ExP2 executed by 5 th defendant Venkatesh-GPA holder of 1st defendant as per the power of attorney at ExP3 and hence plaintiffs contend that they are owners of the suit schedule property. In this regard DW1 further deposed that the 1 st defendant had executed agreement of sale dated 12/01/1990 in favour of defendant No.5 and in the said agreement of sale Sri Satish Pai had expressed that sale deed be executed in the name of his nominees and accordingly plaintiffs claim that Sri Satish Pai nominated them. DW1 further deposed that his vendor 95 O.S.No.15550/2003 i.e., 1st defendant had informed him that she has not executed any agreement of sale, sale deed or power to convey her property and the plaintiffs with an intention to grab her property conspired with defendants No. 4 and 5 and she has lodged private complaint before the Court of Addl. Chief Metropolitan Magistrate for the offences u/s. 471, 419, 467, 468, 420 R/w. Sec. 120B and sec. 34 of IPC and the same has been registered in PCR No.2472/2004 and the Court took action against the accused persons and registered the same in C.C.No.1879/2009 and he has produced copy of the said private complaint as per ExD22. DW1 further deposed that he has purchased the suit schedule under registered sale deed dated 24/10/2002 from its owner 1 st defendant. Plaintiffs have questioned the said sale deed and have filed a suit against his vendor Smt. Anasuya and also this defendant. In pursuance of issuance of suit summons the 1st defendant appeared before the court on 6/2/2003 and has filed her written statement under Order 8 Rule 1 of CPC 96 O.S.No.15550/2003 and in her written statement she has stated that she has not executed any registered agreement of sale in favour of 5 th defendant in respect of the suit schedule property on 12/01/1990 and she has also denied that she has executed any GPA in favour of 4th defendant R. Venkatesh for sale of her property. She has also denied that inspite of nomination by Satish Pai she has not executed sale deed in favour of plaintiffs. DW1 further deposed that the 1 st defendant after receipt of full sale consideration has executed absolute sale deed in his favour. Defendants No. 4 and 5 in collusion with plaintiffs conspired themselves to grab the suit schedule property of the 1st defendant creating documents. DW1 has got marked written statement filed by defendant No.1 as ExD23. DW1 further deposed that if at all the 1 st defendant had executed any sale agreement dated 12/01/1990 as claimed by plaintiffs and since defendant No.1 has denied the same, it is incumbent upon plaintiffs to prove the said aspect by producing cogent and convincing 97 O.S.No.15550/2003 evidence both oral and documentary before the court, but except plaintiffs deposing before the court in their chief examination on this aspect they have not produced any evidence to prove the same. Further DW1 deposed that if at all defendant No.1 had executed any sale agreement to Sri Satish Pai, he would have filed a suit against her for specific performance of the agreement of sale. But in the present suit plaintiffs have not made any such attempt and the contention of the plaintiffs that Satish Pai had nominated plaintiffs and defendant No.1 supposed to execute registered sale deed in favour of plaintiffs is only created story. Hence DW1 prays to dismiss the suit of plaintiffs as the same is not within limitation period in accordance with law. DW1 further deposed that plaintiffs are depending upon the documents ExP3 GPA executed by 1st defendant in favor of R. Venkatesh and the sale deeds executed through him as per ExP1 and ExP2. DW1 further deposed that 1st defendant has filed his written statement under Order 8 Rule 1 CPC that he has not executed any GPA and 98 O.S.No.15550/2003 plaintiffs are deposing falsehood only to claim the property of the 1st defendant by creating bogus instruments and in this regard he has filed criminal complaint against plaintiffs and defendants 4 and 5. Therefore, it is incumbent upon the plaintiffs to prove the said allegations made in the plaint by producing evidence both oral and documentary. But plaintiffs except adducing before the court orally, they have not produced any evidence Hence DW1 prays to consider that 1st defendant has not executed any GPA in favour of R. Venkatesh. Further DW1 deposed that plaintiffs have stated in para 3 of the plaint that they have made payments through cheques to the plaintiff, but the payment of said amounts made by whom in whose favour and for what reason is not clearly stated with with evidence and they have not produced any documents for the said transactions. Hence the said transactions have not been proved. DW1 further deposed that in view of the contentions made in his affidavit evidence and in view of revenue documents he is the uninterrupted owner of the suit schedule property having purchased the same from 1 st defendant. There is no cloud in respect of his ownership over 99 O.S.No.15550/2003 the suit schedule property. Hence he prays to dismiss the suit of the plaintiff with costs.
15. The 2nd defendant Mr. K.P. Patrick Lawrence S/o. Late K.A. Peter examined as DW2 and he has filed his affidavit in lieu of examination in chief and deposed evidence that the present suit of plaintiffs is neither maintainable in law nor on facts and the same is liable to be dismissed in limine. Smt. Anasuya the 1st defendant was the absolute owner of the land bearing Sy.No.44/2B/2, measuring 1 acre 14 guntas off Hebbal Village, Kasaba Hobli, Bangalore North Taluk. He along with Mr. Gopala Reddy have purchased the suit schedule property under a registered sale deed from Smt. Anasuya on 24/10/2002 ffor a valuable consideration. He further denied the plaint averments and deposed that plaintiffs have not acquired any title and alleged claim of plaintiffs is false. The written statement filed by 1st defendant speaks about conduct of Mr. 100 O.S.No.15550/2003 Satish Pai. DW2 further submit that the alleged compromise entered into between the plaintiffs, 1 st defendant, Mr. Satish Pai and Mr. R. Venkatesh is illegal and not binding on him or 3rd defendant and the same has no legal sanctity. No right accrues in favour of plaintiffs and alleged sale deed in favour of plaintiffs does not create any right in their favour. Plaintiffs in collusion with Satish Pai have manovered 1st defendant and her husband and have forced them to sign the compromise and have filed before the court which compromise is not binding on him and prays to reject the same as such the plaintiffs cannot get any better title. DW2 prays to dismiss he suit with with costs. In support of his oral evidence DW2 marked document ExD23 sale deed.
16. The PW1 plaintiff No.2 Mr. Suesh Bhatia got marked ExP1 to ExP30, ExP24(a) to ExP30(a), ExP33, ExP34 during his examination in chief. ExP1 is the 101 O.S.No.15550/2003 registered sale deed dated 16/05/1992 executed by Smt. Anusuya P., W/o. B.S. Adinarayana Reddy [defendant No.1 herein] in favour of Sri Suresh Bhatia S/o.Sri M.M. Bhatia [plaintiff No.2 herein] in respect of schedule property being portion of Old No.44/2B and presently re-numbered as Sy.No. 44/2B2, situated in Hebbal Village, Kasaba Hobli, Bangalore North Taluk, measuring to an extent of 25 guntas for sale consideration of Rs.1,50,000/-. ExP2 is the registered sale deed dated 16/05/1992 executed by Smt. Anasuya P. W/o. B.S. Adinaryana Reddy [defendant No.1 herein] in favour of Sri Sunil Bhatia S/o. Sri M.M. Bhatia [plaintiff No.1] in respect of schedule property immovable agricultural property being portion of old Sy.No.44/2B and presently re numbered as Sy.No. 44/2B2, situated in Hebbal Village, Kasaba Hobli, Bangalore North Taluk, measuring to an extent of 25 guntas. The ExP3 is registered General Power of Attorney dated executed by Smt. P. Anasuya W/o. Sri B.S. Adinarayana Reddy [defendant No.1] in 102 O.S.No.15550/2003 favour of Sri R. Venkatesh S/o M.V.Ramanna [defendant No.5] in respect of the schedule property bearing Sy.No. 44/2B 2 with an extent of 1 ace 14 guntas of Hebbal village, Kasaba Hobli, Bangalore North Taluk, together with existing structures and all other appurtenances. The ExP4 is registered agreement of sale dated 12/01/1990 executed by vendor Smt. P. Anasuya W/o. Sri B.S. Adinarayana Reddy [defendant No.1] in favour of purchaser Sri P. Satish Pai S/o. Late P. Narasimha Pai [defendant No.4] in respect of property bearing Sy.No. 44/2B 2 to an extent of 1 acre 14 guntas of Hebbal village, Kasaba Hobli, Bangalore North Taluk. The ExP5 is the affidavit sworn to by Smt. P. Anasuya W/o. Sri B.S. Adinarayana Reddy [defendant No.1] wherein she has sworn that she has entered in to sale agreement with Sri P. Satish Pai [defendant No.4] on 12/01/1990 in respect of property Sy.No. 44/2B 2 with an extent of 1 acre 14 gunts situated in Bangalore Bellary Road, Hebbal village, Kasaba Hobli, Bangalore North Taluk 103 O.S.No.15550/2003 and in pursuance of the same she has delivered possession of the property. ExP6 is the receipt dated 12/12/2002 for payment of taxes by Sri Suresh Bhatia and Sunil Bhatia [plaintiffs] in respect of Sy.No. 44/2B 2, ExP7 is the receipt dated 01/12/2000 for payment of taxes by Sri Suresh Bhatia and Sunil Bhatia in respect of Sy.No. 44/2B 2, ExP8 is the receipt dated 18/06/1999 for payment of taxes by Sri Suresh Bhatia and Sunil Bhatia in respect of Sy.No. 44/2B, ExP9 is the receipt dated 24/04/1995 for payment of taxes by Sri Sunil Bhatia in respect of Sy.No. 44/2B 2, ExP10 is the receipt dated 24/04/1995 for payment of taxes by Sri Suresh Bhatia in respect of Sy.No. 44/2B 2, ExP11 is the receipt dated 20/12/1993 for payment of taxes by Sri Sunil Bhatia in respect of Sy.No. 44/2B 2, ExP12 is the receipt dated 20/12/1993 for payment of taxes by Sri Suresh Bhatia in respect of Sy.No. 44/2B 2. The ExP13 is Record of Rights in respect of property in Sy.No.44/2B at Hebbal village, Kasaba Hobli, Bangalore North Taluk measuring 2 acre 10 104 O.S.No.15550/2003 guntas wherein in column No.9 name of P. Anasuya D/o. Adinarayana Reddy [defendant No.1] is rounded off under RR No.1902 at serial No.1 and at serial No.2 name of C. Nanjappa Reddy S/o. Gundareddy appear in MR No.11/92- 93 is shown to the extent of 1 acre 10 guntas and also name of Sri Sunil Bhatia and Sri Suresh Bhatia [plaintiffs] appear as per MR 1/93-94 and MR 2/93-94 to the extent of 0.25 guntas each, further in column No.12 for the year 1993-94 name of B.S. Adinrayana Reddy is shown in bracket and name of C Nanjappa Reddy and name of Sunil Bhatia and Suresh Bhatia are shown as cultivators. The ExP14 is certified copy of Record of Rights for the year 2000-2001 in respect of property Hissa 2B2 measuring 1 acre 11 guntas of Hebbal village, Kasaba Hobli, Bangalore North Taluk and at column No.9 name of Sunil Bhatha and Suresh Bhatha [plaintiffs] is shown under MR/92-93 and MR 2/93-94. The ExP15 is extract of mutation register in respect of Hebbal village, Kasaba Hobli, Bangalore North Taluk, which 105 O.S.No.15550/2003 discloses an entry in respect of property bearing Sy.No. 44/2B measuring 0.25 guntas sold by Smt. Anusuya W/o. B. S. Adinarayana Reddy in favour of Sri Sureshbhatia. ExP16 is extract of mutation register in respect of Hebbal village, Kasaba Hobli, Bangalore North Taluk, which discloses an entry in respect of property bearing Sy.No. 44/2B measuring 0.25 guntas sold by Smt. Anusuya W/o. B. S. Adinarayana Reddy in favour of Sri Sunil Bhatia. The ExP17 is encumbrance certificate for the period from 01/01/1980 to 20/03/2007 relating to Sy.No. 44/2b of Hebbal village, Kasaba Hobli, Bangalore North Taluk wherein name of Anusuya P [defendant No.1] is mentioned as sellerr of the property through her GPA holder Sri Venkatatesh [defendant No.5] in favour of Sri Sunil Bhatia and Suresh Bhatia [plaintiffs] under two registered sale deeds dated 16/05/1992 respectively. ExP18 is extract of encumbrance certificate for the period from 01/01/1990 to 31/03/1993 wherein also there is entry about sale of land by Smt. Anusuya 106 O.S.No.15550/2003 [defendant] in favour of Sri Satish Pai in Sy.No. 44/2 B2 to the extent of 1 acre 14 guntas and in favour of Suresh Bhatia and Satish Bhatia to the extent of 0.25 guntas each under sale deed dated 16/05/1992 respectively. ExP19 is the award notice issued by Special Land Acquisition Officer, Hyderabad Bangalore Road, National Highways, Bangalore in Case No.LAQ/NH-7/CA/CR/17/03-04 dated 16/02/2004 issued to (1) Sri Nanjappa Reddy S/o. Gundareddy, (2) Sri Sunil Bhatia and (3) Sri Suresh Bhatia in respect of acquisition of land to an extent of 0.03 guntas in Sy.No.44/2B of Hebbal village, Kasaba Hobli, Bangalore North Taluk. The ExP20 is the receipt issued by M/s. Power and Control Engineers to plaintiffs or supply of single phase meter. ExP21 are 29 electricity bills and respective receipts [16 in numbers] issued by BESCOM towards consumption of electricity. ExP22 are 35 vouchers for the plaintiffs having paid watchman salary to Ramegowda. The ExP23 is the two summary statements issued by IDBI 107 O.S.No.15550/2003 Bank to the 2nd plaintiff [PW1] in respect of overdraft account wherein there is an entry in respect of payment to Ramegowda. ExP24 to 30 are photographs. ExP31 is the Record of Rights in respect of land in Hissa 1B3 measuring 0.10 guntas of Hebbal village, Kasaba Hobli, Bangalore North Taluk and in column No.9 name of G. Muniyappa S/o. Munishamappa is shown as owner in accordance with repaired records under ADLR MPR 164/199-91 and name of G. Muniyappa is shown as cultivator of land during the year 2012-2013. ExP32 is Record of Rights in respect of property bearing Hissa No.2A measuring 2 acre 16 guntas and at column No.9 name off Sri B.H. Narayanaswamy S/o. Hanumegowda and Venkataswamy Reddy S/o. Karagappa are shown as owners under Khatha NO.34 and in column No.11 the said land has been converted under ALN SR 114/74-75 ALN DR 13/75-76 dated 18/04/1975. In column No.12 for the years 2012-2013 name of B.H. Narayanaswamy and Venkataswamy Reddy shown as 108 O.S.No.15550/2003 possessors of converted land. ExP33 is deed of confirmation dated 16/12/2010 executed by Smt. P. Anusuya [defendant No.1] and Sri B.S. Adinarayana Reddy in favour of Sri Suresh Bhatia and Sri Sunil Bhaia [plaintiffs] in respect of property bearing Sy.No.44/2B2 [Old No.44/2b], measuring to an extent of 1 acre 10 guntas and situated at Hebbal village, Kasaba Hobli, Bangalore North taluk, Bangalore.
17. DW1 Sri G. Gopalareddy, defendant No.3 in support of his oral evidence got marked documents ExD1 to ExD22. ExD1 is the Mutation Register Extract in MR No.11 RRT/CR/1528/02-03 dated 21/03/2003 in respect of Sy.No. 2B2 of Hebbal village, Kasaba Hobli, Bangalore North Taluk measuring 1.15 acres including 0.04 guntas Kharab land, which discloses name of Mr. K.P. Patrick Lawrence S/o. Late Peter K.A. [2nd defendant] and Sri G. Gopala Reddy [defendant No.3] as possessors of the 109 O.S.No.15550/2003 property. The ExD2 is Record of Rights in respect of Sy.No. 44 Hissa 2B2 of Hebbal village, Kasaba Hobli, Bangalore North Taluk measuring 1 acre 15 guntas including 04 guntas Kharab land, wherein at column No.9 name of K.P. Patrik Lawrence S/o. Late Peter K.A. [defendant No.2] and Sri Gopala Reddy [defendant No.3] shown as possessors of the property and at column No.10 the way of possession is shown as transfer of MR 11/2002- 2003 dated 26/03/2003 and at column No.11 rights have been shown as by virture of orders RRT/CR/1528/2002-03 dated 21/01/2003 and at column No.12 for the years 2002- 2003 name of G. Gopala Reddy and K.P. Katrick Lawrence and Anusuya are shown as cultivators. The ExD3 is Record of Rights in respect of Sy.No.44 Hissa 2B2 of Hebbal village, Kasaba Hobli, Bangalore North Taluk measuring 1 acre 15 guntas including 04 guntas Kharab land, wherein at column No.9 name of K.P. Patrik Lawrence S/o. Late Peter K.A. [defendant No.2] and Sri Gopala Reddy [defendant 110 O.S.No.15550/2003 No.3] shown as possessors of the property and at column No.10 the way of possession is shown as transfer of MR 11/2002-2003 dated 26/03/2003 and at column No.11 rights have been shown as by virture of orders RRT/CR/1528/2002-03 dated 21/01/2003 and at column No.12 for the years 2003-2004 name of G. Gopala Reddy and K.P. Katrick Lawrence are shown as cultivators.The ExD4 is Record of Rights in respect of Sy.No.44 Hissa 2B2 of Hebbal village, Kasaba Hobli, Bangalore North Taluk measuring 1 acre 15 guntas including 04 guntas Kharab land, wherein at column No.9 name of K.P. Patrik Lawrence S/o. Late Peter K.A. [defendant No.2] and Sri Gopala Reddy [defendant No.3] shown as possessors of the property and at column No.10 the way of possession is shown as transfer of MR 11/2002-2003 dated 26/03/2003 and at column No.11 rights have been shown as by virture of orders RRT/CR/1528/2002-03 dated 21/01/2003 and at column No.12 for the years 2004-2005 name of G. Gopala Reddy 111 O.S.No.15550/2003 and K.P. Katrick Lawrence are shown as cultivators. The ExD5 is Record of Rights in respect of Sy.No.44 Hissa 2B2 of Hebbal village, Kasaba Hobli, Bangalore North Taluk measuring 1 acre 15 guntas including 04 guntas Kharab land, wherein at column No.9 name of K.P. Patrik Lawrence S/o. Late Peter K.A. [defendant No.2] and Sri Gopala Reddy [defendant No.3] shown as possessors of the property and at column No.10 the way of possession is shown as transfer of MR 11/2002-2003 dated 26/03/2003 and at column No.11 rights have been shown as by virture of orders RRT/CR/1528/2002-03 dated 21/01/2003 and at column No.12 for the years 2005-2006 name of G. Gopala Reddy and K.P. Katrick Lawrence are shown as cultivators. The ExD6 is Record of Rights in respect of Sy.No.44 Hissa 2B2 of Hebbal village, Kasaba Hobli, Bangalore North Taluk measuring 1 acre 15 guntas including 04 guntas Kharab land, wherein at column No.9 name of K.P. Patrik Lawrence S/o. Late Peter K.A. [defendant No.2] and Sri Gopala Reddy 112 O.S.No.15550/2003 [defendant No.3] shown as possessors of the property and at column No.10 the way of possession is shown as transfer of MR 11/2002-2003 dated 26/03/2003 and at column No.11 rights have been shown as by virture of orders RRT/CR/1528/2002-03 dated 21/01/2003 and at column No.12 for the years 2006-2007 name of G. Gopala Reddy and K.P. Katrick Lawrence are shown as cultivators. The ExD7 is Record of Rights in respect of Sy.No.44 Hissa 2B2 of Hebbal village, Kasaba Hobli, Bangalore North Taluk measuring 1 acre 15 guntas including 04 guntas Kharab land, wherein at column No.9 name of K.P. Patrik Lawrence S/o. Late Peter K.A. [defendant No.2] and Sri Gopala Reddy [defendant No.3] shown as possessors of the property and at column No.10 the way of possession is shown as transfer of MR 11/2002-2003 dated 26/03/2003 and at column No.11 rights have been shown as by virture of orders RRT/CR/1528/2002-03 dated 21/01/2003 and at column No.12 for the years 2007-2008 name of G. Gopala Reddy 113 O.S.No.15550/2003 and K.P. Katrick Lawrence are shown as cultivators. The ExD8 is Record of Rights in respect of Sy.No.44 Hissa 2B2 of Hebbal village, Kasaba Hobli, Bangalore North Taluk measuring 1 acre 15 guntas including 04 guntas Kharab land, wherein at column No.9 name of K.P. Patrik Lawrence S/o. Late Peter K.A. [defendant No.2] and Sri Gopala Reddy [defendant No.3] shown as possessors of the property and at column No.10 the way of possession is shown as transfer of MR 11/2002-2003 dated 26/03/2003 and at column No.11 rights have been shown as by virture of orders RRT/CR/1528/2002-03 dated 21/01/2003 and at column No.12 for the years 2008-2009 name of G. Gopala Reddy and K.P. Katrick Lawrence are shown as cultivators. The ExD9 is Record of Rights in respect of Sy.No.44 Hissa 2B2 of Hebbal village, Kasaba Hobli, Bangalore North Taluk measuring 1 acre 15 guntas including 04 guntas Kharab land, wherein at column No.9 name of K.P. Patrik Lawrence S/o. Late Peter K.A. [defendant No.2] and Sri Gopala Reddy 114 O.S.No.15550/2003 [defendant No.3] shown as possessors of the property and at column No.10 the way of possession is shown as transfer of MR 11/2002-2003 dated 26/03/2003 and at column No.11 rights have been shown as by virture of orders RRT/CR/1528/2002-03 dated 21/01/2003 and at column No.12 for the years 2009-2010 name of G. Gopala Reddy and K.P. Katrick Lawrence are shown as cultivators. The ExD10 is Record of Rights in respect of Sy.No.44 Hissa 2B2 of Hebbal village, Kasaba Hobli, Bangalore North Taluk measuring 1 acre 15 guntas including 04 guntas Kharab land, wherein at column No.9 name of K.P. Patrik Lawrence S/o. Late Peter K.A. [defendant No.2] and Sri Gopala Reddy [defendant No.3] shown as possessors of the property and at column No.10 the way of possession is shown as transfer of MR 11/2002-2003 dated 26/03/2003 and at column No.11 rights have been shown as by virture of orders RRT/CR/1528/2002-03 dated 21/01/2003 and at column No.12 for the years 2010-2011 name of G. Gopala 115 O.S.No.15550/2003 Reddy and K.P. Katrick Lawrence are shown as cultivators. The ExD11 is Record of Rights in respect of Sy.No.44 Hissa 2B2 of Hebbal village, Kasaba Hobli, Bangalore North Taluk measuring 1 acre 15 guntas including 04 guntas Kharab land, wherein at column No.9 name of K.P. Patrik Lawrence S/o. Late Peter K.A. [defendant No.2] and Sri Gopala Reddy [defendant No.3] shown as possessors of the property and at column No.10 the way of possession is shown as transfer of MR 11/2002-2003 dated 26/03/2003 and at column No.11 rights have been shown as by virture of orders RRT/CR/1528/2002-03 dated 21/01/2003 and at column No.12 for the years 2011-2012 name of G. Gopala Reddy and K.P. Katrick Lawrence are shown as cultivators. The ExD12 is Record of Rights in respect of Sy.No.44 Hissa 2B2 of Hebbal village, Kasaba Hobli, Bangalore North Taluk measuring 1 acre 15 guntas including 04 guntas Kharab land, wherein at column No.9 name of K.P. Patrik Lawrence S/o. Late Peter K.A. [defendant No.2] and Sri 116 O.S.No.15550/2003 Gopala Reddy [defendant No.3] shown as possessors of the property and at column No.10 the way of possession is shown as transfer of MR 11/2002-2003 dated 26/03/2003 and at column No.11 rights have been shown as by virture of orders RRT/CR/1528/2002-03 dated 21/01/2003 and at column No.12 for the years 2012-2013 name of G. Gopala Reddy and K.P. Katrick Lawrence are shown as cultivators. ExD13 is tax paid receipt dated 4/11/2006 in respect of property No.44/2B2 of Hebbal village, Kasaba Hobli, Bangalore North Taluk by K.P. Patrick Lawrence and Sri Gopala Reddy [defendants 2 and 3]. ExD14 is tax paid receipt dated 04/02/2015 in respect of property No.44/2B2 of Hebbal village, Kasaba Hobli, Bangalore North Taluk by K.P. Patrick Lawrence and Sri Gopala Reddy [defendants 2 and 3]. ExD15 is encumbrance certificate for the period from 01/04/1990 to 31/03/2004 in respect of property old Sy.No. 44/2 New Sy.No. 44/2B2 measuring 1 acre 11 guntas of Hebbal village, Kasaba Hobli, Bangalore North Taluk 117 O.S.No.15550/2003 discloses sale transaction on 24/10/2002 by P. Anasuya [defendant No.1] in favour off SriK.P Patrik Lawrence [defendant No.2] and Sri G. Gopala Reddy [defendant No.3] for a sale consideration of Rs.28,69,000/-. ExD16 is encumbrance certificate for the period from 01/04/2002 to 31/03/2004 in respect of property old Sy.No. 44/2 New Sy.No. 44/2B2 measuring 1 acre 11 guntas of Hebbal village, Kasaba Hobli, Bangalore North Taluk discloses sale transaction on 24/10/2002 by P. Anasuya [defendant No.1] in favour off SriK.P Patrik Lawrence [defendant No.2] and Sri G. Gopala Reddy [defendant No.3] for a sale consideration of Rs.28,69,000/-. ExD17 is the copy of orders passed by the Tahsildar, Bangalore North Taluk in RRT(D)04/99/2000 dated 8/5/2002 wherein the plaintiffs herein Sunil Bhatia and Sri Suresh Bhatia are petitioners and the 1st defendant Smt. Anusuya, is the respondent and under the said orders Khatha of the property bearing Sy.No.44/2BB2 measuring 1 acre 15 guntas including 04 118 O.S.No.15550/2003 guntas Kharab land in the name of petitioners therein revoked and reinstated in the name of respondent. ExD18 is certified copy of orders passed by the the Court of Asst. Commissioner, Bangalore in Case No.RA 154/2002-2003 dated 21/02/2003 in which applicants Sri Sunil Bhatia and Sri Suresh Bhatia have filed appeal against the orders passed by the Special Tahisildar, Bangalore, in which the present defendant No.1 is arrayed as 2nd petitioner. The Court of Asst Commissioner, Bangalore vide its order dismissed the claim of applicants and by upholding the orders passed by the Tahsildar, Bangalore, directed applicants to approach the Civil Court, if they claim any right. ExD19 is the certified copy of the orders passed by the court off Special Deputy Commissioner, Bangalore District in Revision Petition 186/2002-2003 dated 20th October 2003 filed by petitioners Sunil Bhatia and Suresh Bhatia against respondents The Asst Commissioner, Bangalore North Sub Division, The Special Tahsildar, Bangalore North Taluk and also Smt. 119 O.S.No.15550/2003 Anusuya [defendant No.1 herein] wherein revision filed by applicants was dismissed holding that the orders passed by the 1st respondent-Asst. Commissioner is in accordance with law and there is no need to interfere in the said order. ExD20 is the certified copy of orders dated 27/02/2004 passed by the Hon'ble High Court of Karnataka in Writ Petition No. 52507/2003(KLR-RES) filed by petitioners Sunil Bhatia and Suresh Bhatia against respondents The Special Dy. Commissioner, The Asst Commissioner, The Special Tahsildar and also Smt. Anasuya [defendant No.1 herein] wherein the Hon'ble High Court of Karnataka dismissed the petition holding that admittedly the suit is instituted by the petitioners for approbate relief and in view of fact that 4th respondent disputing the execution of registered power of attorney in favour of Venkatesh, the matter is seized by the Civil Court and the same cannot be adjudicated by revenue authorities and it is only for the civil curt to decide the same. ExD21 is the certified copy of 120 O.S.No.15550/2003 private complaint filed by Smt.P. Anasuya against plaintiffs herein and also Sri P. Satish Pai and R. Venkatesh [defendant No.5 herein] registered as PCR No.2472/2004 [C.C.No.1879/2009] on the file of ACMM Court, Bangalore. ExD22 is certified copy of written statement filed by Smt. Anasuya and others defendant No.1 herein in this suit. In the evidence of DW3 defendants got marked document ExD23 absolute sale deed dated 24/10/2002 to show that defendant No.1 has sold the suit schedule property to defendants No. 2 and 3.
18. The burden is on the plaintiff to prove that they are absolute owners in peaceful possession and enjoyment of the suit schedule property as on the date of suit. The burden is on the plaintiff to prove that the sale deed executed by defendant No.1 in favour of defendants No. 2 and 3 on 24/10/2002 is void in law and does not bind on the plaintiff. To the contrary the burden is on the defendant No.1 to prove 121 O.S.No.15550/2003 that she has not executed power of attorney in favour of defendant No.5 in respect of the suit schedule property. Both the plaintiffs and defendants have produced documents in respect of their contention taken in the pleadings as discussed above. As per ExP3 registered General Power of Attorney dated 29/01/1992 executed by Smt. P. Anasuya W/o. Sri B.S. Adinarayana Reddy [defendant No.1] in favour of Sri R. Venkatesh S/o M.V.Ramanna [defendant No.5] in respect of the schedule property bearing Sy.No. 44/2B 2 with an extent of 1 acre 14 guntas of Hebbal village, Kasaba Hobli, Bangalore North Taluk, wherein the defendant No.1 had authorized her GPA holder defendant No.5 to execute any deed, deeds of conveyance conveying the suit schedule property in favour of purchaser or his nominees and to present the same before the appropriate sub Registrar for registration. In the said ExP3 there is averment that the owner of the land bearing Sy.No. 44/2B 2 measuring 1 acre 04 guntas of hebbal village, Bangalore 122 O.S.No.15550/2003 North Taluk Smt. Anusuya wife of Sri Adinarayana Reddy [defendant No.1] is unable to manage the affairs of the suit schedule property and she is appointing Sri R. Venkatesh S/o. Ramanna [defendant No.5] to be her General Power of Attorney. Further, there is averment that earlier to executing the said GPA she had entered into agreement of sale in respect of the same property with Sri Satish Pai on 12/01/1990 to sell the suit schedule property to Satish Pai or his nominees as per the terms and conditions stipulated in the said sale agreement dated 12/01/1990. The said agreement of sale dated 12/01/1990 is marked as ExP4, is a registered document which discloses that defendant No.1 agreed to sell the land bearing Sy.No. 44/2B 2 measuring 1 acre 14 guntas of Hebal Village, Kasaba Hobli, Banglore North Taluk in favour of Sri Satish Pai son of Late P. Narasimha Pai [defendant No.4] including their respective legal heirs, nominees, legal representatives, executors, assigns, etc., for Rs.3,50,000/- and received an amount of 123 O.S.No.15550/2003 Rs.1,00,000/- by way of demand draft as advance. In the said agreement of sale only one witness Sri BB.S. Adinarayana Reddy [husband of defendant No.1] signed the same.
19. By virtue of GPA executed by defendant No.1, the defendant No.5 Sri R. Venkatesh executed ExP1 registered sale deed dated 16/05/1992 as GPA holder of Smt. Anusuya P., W/o. B.S. Adinarayana Reddy [defendant No.1 herein] in favour of Sri Suresh Bhatia S/o.Sri M.M. Bhatia [plaintiff No.2 herein] in respect of schedule property being portion of Old No.44/2B and presently re-numbered as Sy.No. 44/2B2, situated in Hebbal Village, Kasaba Hobli, Bangalore North Taluk, measuring to an extent of 25 guntas for sale consideration of Rs.1,50,000/- and further executed ExP2 registered sale deed dated 16/05/1992 as GPA holder of Smt. Anasuya P. W/o. B.S. Adinaryana Reddy [defendant No.1 herein] in favour of Sri Sunil Bhatia S/o. Sri M.M. Bhatia 124 O.S.No.15550/2003 [plaintiff No.1] in respect of schedule property immovable agricultural property being portion of old Sy.No.44/2B and presently re numbered as Sy.No. 44/2B2, situated in Hebbal Village, Kasaba Hobli, Bangalore North Taluk, measuring to an extent of 25 guntas.
20. Further, as per ExP33 deed of confirmation dated 16/12/2010 executed by Smt. P. Anusuya [defendant No.1] and Sri B.S. Adinarayana Reddy in favour of Sri Suresh Bhatia and Sri Sunil Bhaia [plaintiffs] have confirmed the execution of two sale deeds dated 16/5/1992 by Sri R. Venkatesh [defendant No.5] GPA holder of defendant No.1 in favour of plaintiffs, in respect of property bearing Sy.No.44/2B2 [Old No.44/2b], measuring to an extent of 1 acre 10 guntas and situated at Hebbal village, Kasaba Hobli, Bangalore North taluk, Bangalore. There is also averment in ExP33 that defendant No.1 relinquished all her claim, right, title and interest over the suit schedule property in 125 O.S.No.15550/2003 favour of present plaintiffs. Further, it is also referred in the ExP33 confirmation deed regarding the present suit in O.S.No. 15550/2003 pending in this court and plaintiffs and defendant No.1 have arrived compromise and filed compromise petition under Order 23 Rule 3 of CPC on 16/12/2010 before the court.
21. Now the burden is on the defendants No. 2 and 3 to prove that they are bonafide purchasers of suit schedule property from defendant No.1 as per ExD23 sale deed. But defendant No.2 has not entered the witness box and not deposed any evidence. Whereas defendant No.3 examined as DW1 by filing his affidavit in lieu of examination in chief as discussed above. In the cross examination of DW1 he has deposed that "It is true to suggest that the contents of para 7 of my affidavit are true and correct. I have verified RTC extract available as on for the year 2002. I do not remember that I have verified the documents / RTC extracts pertaining 126 O.S.No.15550/2003 to from which year to which year about the suit schedule property. I do not know that the RTC in respect of the suit schedule property for the year 1993-94 was standing in the name of plaintiff" DW1 shows his ignorance regarding entry of name of the plaintiff in Record of Rights of the suit schedule property since from 1993 till 2002. Whereas in the examination in chief in para 7 DW1 deposed evidence that "ಪಪತವವದ ದವವ ಸಸತತನನನ ನಮಗಗ ಮವರವಟ ಮವಡನವವದಕಗಕ ಮನನನ ಆಸತಯ ಮಮಲಗ ಯವವವದವದರರ ಕಪಮಗಳನ ಹವಗರ ಖನಣಭವರಗಳ ಬಗಗಗ ಸಸಭಸಧಪಟಟ ನಗರಸದಣವಧಕವರಗಳ ಕಛಗಮರಯಲಲ ಶಗರಮಧಸದಗವವ. ಆ ಆಸತಯ ಮಮಲಗ ದನವಸಕ 01/04/1990 ರಸದ 31/03/2004 ಒಟನಟ 16 ವರರಗಳ ಖನಣಭವರಗಳನನನ ಶಗರಮಧಸಲನ ಆಸತ ಒಸದನಗಮ ಪಪತವವದ ಅನನಸರಯಮಮನ ಹಗಸರನಲಲರನವವದನ ಕಸಡನಬಸದತನತ. ಪವನನ ನವನನ ಹಗಮಳನವವದಗಮನಗಸದರಗ ದನವಸಕನ01/04/2004 ರಸದ 31/03/2004 ರವರಗಗರ ಶಗರಮಧಸಲವಗ ಅಲಲಯರ ಸಹವ 5 ನಗಮ ಪಪತವವದ ಸತಮಶಪಗಪ ಇವರ ಮವರವಟ ಕರವರನ ಪತಪದ ವವರಗಳನ ಇರನವವದಲಲ". DW1 has marked ExD15 encumbrance certificate for the period from 01/04/1990 to 31/03/2004 and ExD16 encumbrance 127 O.S.No.15550/2003 certificate from 01/04/2002 to 31/03/2004 in respect of property old Sy.No. 44/2 New Sy.No. 44/2B2 measuring 1 acre 11 guntas of Hebbal village, Kasaba Hobli, Bangalore North Taluk and in both ExD15 and 16 there is only entry regarding sale of suit schedule property by defendant No.1 in favour of defendant No.2 and 3. But defendants No. 2 and 3 have not produced encumbrance certificate of earlier period from 01/04/1990. Whereas PW1 has marked ExP17 encumbrance certificate for the period from 01/1/1980 to 20/03/2007 relating to Sy.No. 44/2b of Hebbal village, Kasaba Hobli, Bangalore North Taluk wherein there is an entry that Smt. Anusuya P [defendant No.1] through her GPA holder Sri Venkatatesh [defendant No.5] sold the property in favour of Sri Sunil Bhatia and Suresh Bhatia [plaintiffs] under two registered sale deeds dated 16/05/1992 respectively. Hence, the say of plaintiffs that DW1 that earlier to purchase of the suit schedule property he has verified the concerned revenue records and mutation entries 128 O.S.No.15550/2003 as discussed above is not proper to accept. Further, in the cross examination of DW1 he has deposed evidence that "I do not know the sale deed executed in the name of plaintiff in respect of the suit schedule property. In the year 2002 defendant No.1 executed sale deed in favour of me and at that time defendant told me about existence of sale deed earlier in favour of plaintiffs. I have not filed suit for cancellation of sale deed which was earlier standing in the name of defendant No.1 and subsequently which was standing in the name of plaintiffs and for recovery of possession." Therefore, it is crystal clear that defendant No.3 is aware of execution of the sale deeds in respect of the suit schedule property by defendant No.1 in favour of plaintiffs, but he has not taken any steps to take action against defendant No.1 for executing sale deed in favour of defendant No.3 as per ExD23 on 24/10/2002. 129
O.S.No.15550/2003
22. The order sheet of the suit dated 18/12/2014 discloses that IA-9 and 11 were filed by defendant No.3 and 2 respectively under Order 22 Rule 3 R/w. Sec. 151 of CPC were allowed and compromise orders recorded in favour of plaintiff and defendant No.1, 4 and 5 on 16/12/2010 is recalled by this court. Against the said orders the plaintiffs herein preferred writ petition before Hon'ble High Court of Karnataka in Writ Petition No.10563/2015 and WP.Nos 49420-422/2015(GM-CPC) against defendants herein challenging the orders passed by this court. The Hon'ble High Court of Karnataka while dismissing the writ petitions observed that the trial court was justified in recalling the orders dated 16/12/2010 and observed that title of the suit schedule property seriously disputed. Hence trial court was not justified in accepting the compromise since defendants No. 2 and 3 were not parties to the said compromise petition. Therefore trial court justified in recalling the orders dated 16/12/2010 and dismissed the appeals. 130
O.S.No.15550/2003 Whether an appeal is filed against the said orders before the Hon'ble Supreme Court of India is not clarified by plaintiffs.
23. The plaintiff counsel argued in length and also filed written arguments with several citations viz., AIR 1951 SC 280, 2013(1) KCCR 577, 2004(4) ALD 889, AIR 1974 SC 471, AIR 1989 SC 1809, AIR 2002 SC 959, AIR 1973 MYS 276, AIR 2016 SC 2250, AIR 1993 ORISSA 59, AIR 1991 DELHI 222, AIR 1972 ALL 219, AIR 1976 HP 41 and in the decision of Hon'ble Supreme Court of India reported in AIR 1951 SC 280 [ Bishundeo Narain and Anr Vs Seogeni Rai and Jagernath] it is held:-
"Family - Compromise - Order 32 Rule 7 of CPC 1908 - Whether compromise on suit for partition of family property binding on minor - after attaining majority minor can avoid compromise decree if compromise resulted in unfair advantage to others - Held, compromise 131 O.S.No.15550/2003 decree will be binding on minor in case of proper representation of minor in suit."
I have gone through the said decision which is not applicable to the present case on hand since in the said citation compromise entered into between family members in respect of property including minor share. But in the present suit the situation is different as discussed above. The plaintiff counsel also relied on decision reported in AIR 1993 Orissa 59 [Dulana Dei alias Dolena Dei Vs. Balaram Sahu and two others] wherein it is held:-
(A) Specific Relief Act(1963), S. 34 -
Declaratory relief - Suit for declaration of title- Sale of property by registered sale deed - Recital in deed showing vendor's intention to transfer title in favour of vendee on date of execution of sale deed - Plea that, for non payment of consideration there was no passing of title, not proper- suit for declaration cannot be dismissed for want of title"
132
O.S.No.15550/2003 The counsel for plaintiff relied on the citation of Hon'ble Supreme Court of India reported in AIR 1989 Sc 1809 wherein it is held:-
(A) Specific Relief Act (1963) S. 34 - Suit for decree of perpetual injunction
restraining defendant from interfering with possession - Relief of declaration of title not specifically mentioned in relief portion of plaint - suit could not be dismissed on that ground"
The counsel for plaintiff relying on the above citation argued that the suit cannot be dismissed only on the ground that relief of declaration is not claimed.
24. The counsel for plaintiff further argued that earlier sale deeds prevails over the subsequent sale deed executed by the same person. In the present suit the plaintiffs claim that 1st defendant executed sale deeds in respect of the suit schedule property through her GPA holder in favour of 133 O.S.No.15550/2003 plaintiffs and hence the sale deeds executed by defendant No.1 afterwards in favour of defendants No. 2 and 3 is not binding on plaintiffs.
25. To the contrary the counsel for defendants No. 2 and 3 also filed written arguments and relied on several citations reported in AIR 1999 SC 1441, AIR 1976 SC 888, AIR online 2018 SC 721, Manu/SC/7376/2008 and argued that party to the suit not entering the witness box give rise to inference adverse against him. He further argued that defendant No.5 GPA Holder of defendant No.1 is not examined. Hence the counsel for defendant No.2 and 3 prays for dismissal of the suit of the plaintiff.
26. In this suit defendant No.5 appeared through his counsel but he has not led any oral evidence and also not got marked any documents. Whereas, as discussed above ExP4 is registered power of attorney executed by defendant No.1 in favour of defendant No.5. But there are no documents 134 O.S.No.15550/2003 produced by defendant No.2 and 3 to show that the said GPA is cancelled by defendant No.1. Hence, as on the date of sale of suit schedule property by defendant No.1 in favour of defendant No.2 and 3 the said G.P.A. ExP4 was in existence and also there was entry in the Record of Rights as well as encumbrance certificate of suit schedule property as discussed above under ExP13, 14 and Ex.P17 and ExP18. But defendant No.2 and 3 even though having knowledge that earlier the suit schedule property is sold to plaintiffs by defendant No.5 as GPA holder of defendant No.1, they have purchased the suit schedule property from defendant No.1 which is not proper.
27. DW1 in his cross examination clearly admitted that earlier to purchase of the suit schedule property he had knowledge that plaintiffs have purchased the suit schedule property. Hence, defendants No. 2 and 3 even though had the knowledge that plaintiffs are owners of the suit schedule 135 O.S.No.15550/2003 property as on the date of purchase of the suit schedule property by them as per ExP23 from defendant No.1, they have entered into sale transaction with defendant which is not proper. In view of citations relied upon by the counsel for plaintiffs as discussed above [AIR 2002 SC 959] the subsequent sale deed prevails applies to the present case on hand. Since in the revenue records there is specific name of plaintiffs appeared in respect of the suit schedule property as on the date of purchase of the suit schedule property by defendants No. 2 and 3 from defendant No.1, even though they have purchased the suit schedule property. Hence defendants No. 2 and 3 have not get better title over the suit schedule property. Moreover after filing of the suit, in the year 2010 as per ExP33 defendant No.1 and her husband have confirmed the sale deed executed by GPA holder [defendant No.5] in favour of plaintiffs as per ExP1 and ExP2 and relating to the said ExP33 document the counsel for defendant No.2 cross examined PW1. But nothing is 136 O.S.No.15550/2003 elicited from the mouth of PW1 to disbelieve the version deposed by the witness relating to ExP33 document.
28. Further PW2 is son of Ramesh Pai as per him his father Ramesh Pai has signed as attesting witness in ExP3 power of attorney executed by defendant No.1 in favour of defendant No.5 and he has identified signature of his father at ExP3(a). Further PW3 adjoining owner of the suit schedule property also deposed his evidence and in his examination in chief he has deposed that plaintiffs are in possession and enjoyment of the suit schedule property. Further, PW4 who is also adjoining owner of suit schedule property has also deposed in his evidence that plaintiffs are in possession and enjoyment of the suit schedule property and he is running a petrol pump in his land. A suggestion was made by counsel for defendants to both these witnesses that defendants No. 2 and 3 are in possession of the suit 137 O.S.No.15550/2003 schedule property and PW3 has denied the suggestion and PW4 deposed that he is not aware of the same.
29. Further, defendants No. 2 and 3 have not produced tax paid receipts of the suit schedule property from the date of their purchase of the same and they have even not produced any other documents to show that they are in possession of the suit schedule property. Whereas plaintiffs have produced tax paid receipts ExP6 to ExP12 for the period from 1993 till 1999. Plaintiffs have produced ExP20 receipt dated 12/08/2004 issued by Power and Control Engineers regarding single meter fixed in the property of the plaintiff. ExP34 is the notice given by Bangalore Electricity Supply Company to plaintiff No.2 for disconnection of installation bearing.R.C4 LG 87340 installed in Sy.No. 44 2B dated 9/8/2017 Kodigehalli. Further, ExP19 is award notice issued by Special Land Acquisition Officer, Hyderabad Bangalore National 138 O.S.No.15550/2003 Highway No.7 dated 16/02/2004 in Case No.LAQ/NH- 7/CA/CR/17/03-04 in respect of acquisition of land to an extent of 0.03 guntas in Sy.No.44/2B of Hebbal village, Kasaba Hobli, Bangalore North Taluk to plaintiffs. Whereas defendants No. 2 and 3 alleged to have become owners of the suit schedule property as per ExD23 absolute sale deed dated 24/10/2002. If at all defendants No. 2 and 3 are absolute owners in lawful possession and enjoyment of the suit schedule property the award notice at ExP19 ought to have issued to them by the Special Land Acquisition Officer. Even after existence of the sale deed ExD23 dated 24/10/2002 the notice was issued by the Spl. Land Acquisition Officer to plaintiffs, which discloses that even after execution of the sale deed ExD23 by defendant No.1 in favour of defendants No. 2 and 3 plaintiffs are in possession of the suit schedule property. From the above discussion it is clear that plaintiffs are absolute owners in lawful possession and enjoyment of the suit schedule property as 139 O.S.No.15550/2003 on the date of the suit and defendants No. 2 and 3 even though had knowledge that plaintiffs are in possession and enjoyment of the suit schedule property as absolute owners they have purchased the suit schedule property subsequently on 24/10/2002 without knowledge of plaintiffs. Hence defendants No. 2 and 3 cannot get lawful right, title over the suit schedule property. The citations relied upon by the counsel for defendants No. 2 and 3 as discussed above would not come to the aid of their defence. Therefore, plaintiffs proved Issue No.1 to 3, 10 and 12 that 1st defendant has executed a legally valid registered General Power of Attorney in favour of defendant No.5 on 29/01/1992 and also proved that the Sale Deed executed by 1st defendant in favour of 2 nd and 3rd defendants dated:24/10/2002 is void and does not bind on them and also proved their lawful possession and enjoyment of the suit schedule properties as on the date of the suit and hence they are entitled for the relief of declaration and permanent 140 O.S.No.15550/2003 injunction as sought. Hence issue No.1 to 3, 10 and 12 are answered in the affirmative.
30. Issue No. 4, 5, 6, & 11:-
The burden is on the defendant No.1 to prove these issues. Defendant No.1 in her written statement has taken several contentions as discussed above that there was no consensus between herself and defendant No.4 Satish Pai, who induced her to enter into agreement of sale dated 31/10/1988 with Gopalakrishna Shenoy, his brother in law to sell an extent of 1 acre 12 guntas out of Sy.No.44/2B of Hebbal village for a sum of Rs.6,25,000/-. Further, she has contended that Satish Pai has played fraud on her and obtained agreement of sale dated 12/01/1990. She has further taken contention in the written statement and counter claim that the sale deed dated 16/5/1992 executed in favour of the plaintiff is sham and illegal document and she has also prayed for the relief of declaration to declare that the sale deed dated 16/5/1992 in 141 O.S.No.15550/2003 favour of plaintiffs 1 and 2 are sham and illegal and the same does not confer any right, title or possession of plaintiffs over the suit schedule property and the reliefs sought for in the suit are barred by limitation. But to prove all these contentions the defendant No.1 has to entered in to the witness box and deposed evidence and subjected herself for cross examination and also not produced documents in her favour to prove her defence. The defendant No.1 even though appeared through her counsel, but she has not turned up to depose evidence before the court to prove her defence taken in her written statement as well as counter claim.
Therefore, the defendant No.1 failed to prove Issue No.4, 5, 6 and 11. Therefore, defendant No.1 is not entitled for the relief claimed in the counter claim. Hence Issue No.4, 5, 6 and 11 are answered in the negative.
31. Issue No. 7:-
142
O.S.No.15550/2003 The defendant No.1 taken contention that the valuation of the suit and payment of court fee made by the plaintiff are not proper. On this aspect the defendant No.1 has not led any oral evidence and not marked any documents. On perusal of the plaint averments as well as valuation slip, the court fee paid by the plaintiff for the relief of declaration and permanent injunction claimed by the plaintiff is proper. Hence defendant No.1 failed to prove issue No.7 and accordingly Issue No.7 is answered in the negative.
32. Issue No.8 and 9:-
Further, the plaintiff filed rejoinder to the counter claim of the defendant No.1 submitting that the counter claim made by the defendant No.1 is barred by time and valuation made on counter claim and court fee paid on counter claim is not proper. But the plaintiffs have not led any oral evidence on this issue to prove the valuation of counter claim and payment of court fee is not sufficient. On perusal of the 143 O.S.No.15550/2003 counter claim filed by defendant No.1 based on the plaint allegations defendant No.1 has filed written statement and counter claim. Hence the counter claim is not barred by time. Further, for the relief claimed in the counter claim regarding declaration the defendant No.1 has paid proper court fee. Hence I answer Issue No.8 in Negative and Issue No.9 in Affirmative.
33. Issue No.13:-
In view of above discussion I proceed to pass following:
:ORDER:
The suit of the plaintiffs is hereby decreed with costs.
It is ordered and decreed declaring that the sale deeds executed by defendant No.1 in favour of defendant No.2 and 3 registered as No. 1516/2001-02, dated:24/10/2002 is void and the same is not binding on the plaintiffs.144
O.S.No.15550/2003 Further it is ordered and decreed that the defendants, their agents, servants, assigns or anyone acting or claiming on their behalf are hereby permanently restrained from entering upon or in any way interfering with the peaceful possession and enjoyment of the property suit schedule property by plaintiffs.
The Counter claim filed by defendant No.1 is hereby dismissed with costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcript thereof corrected and then pronounced by me in the open court on this 21st day of January 2020).
(Smt.Suvarna K. Mirji) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE :ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW1 : Mr. Suresh Bhatia S/o. Sri M.M. Bhatia
145
O.S.No.15550/2003
PW2 : Mr. Praveen Pai
PW3 : Mr. G. Muniyappa
PW4 : Mr. B.H. Narayanaswamy
DOCUMENTS MARKED FOR THE PLAINTIFFS:
ExP1 Registered sale deed dated 16/05/1992 executed
by Smt. Anusuya P., W/o. B.S. Adinarayana Reddy [defendant No.1 herein] in favour of Sri Suresh Bhatia S/o.Sri M.M. Bhatia [plaintiff No.2 herein] ExP2 Registered sale deed dated 16/05/1992 executed by Smt. Anasuya P. W/o. B.S. Adinaryana Reddy [defendant No.1 herein] in favour of Sri Sunil Bhatia S/o. Sri M.M. Bhatia [plaintiff No.1] ExP3 Registered General Power of Attorney dated executed by Smt. P. Anasuya W/o. Sri B.S. Adinarayana Reddy [defendant No.1] in favour of Sri R. Venkatesh S/o M.V.Ramanna [defendant No.5] ExP4 Registered agreement of sale dated 12/01/1990 executed by vendor Smt. P. Anasuya W/o. Sri B.S. Adinarayana Reddy [defendant No.1] in favour of purchaser Sri P. Satish Pai S/o. Late P. Narasimha Pai [defendant No.4] ExP5 Affidavit sworn to by Smt. P. Anasuya W/o. Sri B.S. Adinarayana Reddy [defendant No.1] wherein she has sworn that she has entered in to sale agreement with Sri P. Satish Pai [defendant No.4] on 12/01/1990.146
O.S.No.15550/2003 ExP6 Receipt dated 12/12/2002 for payment of taxes by Sri Suresh Bhatia and Sunil Bhatia [plaintiffs] in respect of Sy.No. 44/2B 2.
ExP7 Receipt dated 01/12/2000 for payment of taxes by Sri Suresh Bhatia and Sunil Bhatia in respect of Sy.No. 44/2B 2.
ExP8 Receipt dated 18/06/1999 for payment of taxes by Sri Suresh Bhatia and Sunil Bhatia in respect of Sy.No. 44/2B.
ExP9 Receipt dated 24/04/1995 for payment of taxes by Sri Sunil Bhatia in respect of Sy.No. 44/2B 2.
ExP10 Receipt dated 24/04/1995 for payment of taxes by Sri Suresh Bhatia in respect of Sy.No. 44/2B 2.
ExP11 Receipt dated 20/12/1993 for payment of taxes by Sri Sunil Bhatia in respect of Sy.No. 44/2B 2.
ExP12 Receipt dated 20/12/1993 for payment of taxes by Sri Suresh Bhatia in respect of Sy.No. 44/2B 2.
ExP13 Record of Rights in respect of property in Sy.No.44/2B at Hebbal village, Kasaba Hobli, Bangalore North Taluk measuring 2 acre 10 guntas ExP14 Certified copy of Record of Rights for the year 2000-2001 in respect of property Hissa 2B2 measuring 1 acre 11 guntas of Hebbal village, Kasaba Hobli, Bangalore North Taluk 147 O.S.No.15550/2003 ExP15 Extract of mutation register in respect of Hebbal village, Kasaba Hobli, Bangalore North Taluk ExP16 Extract of mutation register in respect of Hebbal village, Kasaba Hobli, Bangalore North Taluk ExP17 Encumbrance certificate for the period from 01/01/1980 to 20/03/2007 relating to Sy.No. 44/2b of Hebbal village, Kasaba Hobli, Bangalore North Taluk ExP18 Extract of encumbrance certificate for the period from 01/01/1990 to 31/03/1993 ExP19 Award notice issued by Special Land Acquisition Officer, Hyderabad Bangalore Road, National Highways, Bangalore in Case No.LAQ/NH- 7/CA/CR/17/03-04 dated 16/02/2004 ExP20 Receipt issued by M/s. Power and Control Engineers to plaintiffs or supply of single phase meter.
ExP21 29 electricity bills and respective receipts [16 in numbers] issued by BESCOM towards consumption of electricity.
ExP22 35 vouchers for the plaintiffs having paid watchman salary to Ramegowda.
ExP23 The two summary statements issued by IDBI Bank to the 2nd plaintiff [PW1] in respect of overdraft account wherein there is an entry in respect of payment to Ramegowda.148
O.S.No.15550/2003 ExP24 to 30 photographs.
ExP31 Record of Rights in respect of land in Hissa 1B3 measuring 0.10 guntas of Hebbal village, Kasaba Hobli, Bangalore North Taluk ExP32 Record of Rights in respect of property bearing Hissa No.2A measuring 2 acre 16 guntas ExP33 Deed of confirmation dated 16/12/2010 executed by Smt. P. Anusuya [defendant No.1] and Sri B.S. Adinarayana Reddy in favour of Sri Suresh Bhatia and Sri Sunil Bhaia [plaintiffs].
ExP34 Notice issued by BESCOM for disconnection of electricity.
WITNESSES EXAMINED FOR THE DEFENDANT/S:
DW1 : Mr. G. Gopala Reddy DW2 : Mr. K.P. Patrick Lawrence DOCUMENTS MARKED FOR THE DEFENDANT/S: ExD1 Mutation Register Extract in MR No.11
RRT/CR/1528/02-03 dated 21/03/2003 in respect of Sy.No. 2B2 of Hebbal village, Kasaba Hobli, Bangalore North Taluk ExD2 Record of Rights in respect of Sy.No. 44 Hissa 2B2 of Hebbal village, Kasaba Hobli, Bangalore North Taluk measuring 1 acre 15 guntas including 04 guntas Kharab land 149 O.S.No.15550/2003 ExD3 Record of Rights in respect of Sy.No.44 Hissa 2B2 of Hebbal village, Kasaba Hobli, Bangalore North Taluk measuring 1 acre 15 guntas including 04 guntas Kharab land.
ExD4 Record of Rights in respect of Sy.No.44 Hissa 2B2 of Hebbal village, Kasaba Hobli, Bangalore North Taluk measuring 1 acre 15 guntas including 04 guntas Kharab land.
ExD5 Record of Rights in respect of Sy.No.44 Hissa 2B2 of Hebbal village, Kasaba Hobli, Bangalore North Taluk measuring 1 acre 15 guntas including 04 guntas Kharab land.
ExD6 Record of Rights in respect of Sy.No.44 Hissa 2B2 of Hebbal village, Kasaba Hobli, Bangalore North Taluk measuring 1 acre 15 guntas including 04 guntas Kharab land.
ExD7 Record of Rights in respect of Sy.No.44 Hissa 2B2 of Hebbal village, Kasaba Hobli, Bangalore North Taluk measuring 1 acre 15 guntas including 04 guntas Kharab land.
ExD8 Record of Rights in respect of Sy.No.44 Hissa 2B2 of Hebbal village, Kasaba Hobli, Bangalore North Taluk measuring 1 acre 15 guntas including 04 guntas Kharab land.
ExD9 Record of Rights in respect of Sy.No.44 Hissa 2B2 of Hebbal village, Kasaba Hobli, Bangalore North Taluk measuring 1 acre 15 guntas 150 O.S.No.15550/2003 ExD10 Record of Rights in respect of Sy.No.44 Hissa 2B2 of Hebbal village, Kasaba Hobli, Bangalore North Taluk measuring 1 acre 15 guntas including 04 guntas Kharab land ExD11 Record of Rights in respect of Sy.No.44 Hissa 2B2 of Hebbal village, Kasaba Hobli, Bangalore North Taluk measuring 1 acre 15 guntas including 04 guntas Kharab land ExD12 Record of Rights in respect of Sy.No.44 Hissa 2B2 of Hebbal village, Kasaba Hobli, Bangalore North Taluk measuring 1 acre 15 guntas including 04 guntas Kharab land ExD13 Tax paid receipt dated 4/11/2006 in respect of property No.44/2B2 of Hebbal village, Kasaba Hobli, Bangalore North Taluk by K.P. Patrick Lawrence and Sri Gopala Reddy [defendants 2 and 3].
ExD14 Tax paid receipt dated 04/02/2015 in respect of property No.44/2B2 of Hebbal village, Kasaba Hobli, Bangalore North Taluk by K.P. Patrick Lawrence and Sri Gopala Reddy [defendants 2 and 3].
ExD15 Encumbrance certificate for the period from 01/04/1990 to 31/03/2004 in respect of property old Sy.No. 44/2 New Sy.No. 44/2B2 measuring 1 acre 11 guntas of Hebbal village, Kasaba Hobli, Bangalore North Taluk ExD16 Encumbrance certificate for the period from 01/04/2002 to 31/03/2004 in respect of property 151 O.S.No.15550/2003 old Sy.No. 44/2 New Sy.No. 44/2B2 measuring 1 acre 11 guntas of Hebbal village, Kasaba Hobli, Bangalore North Taluk ExD17 Copy of orders passed by the Tahsildar, Bangalore North Taluk in RRT(D)04/99/2000 dated 8/5/2002 ExD18 Certified copy of orders passed by the the Court of Asst. Commissioner, Bangalore in Case No.RA 154/2002-2003 dated 21/02/2003 ExD19 Certified copy of the orders passed by the court off Special Deputy Commissioner, Bangalore District in Revision Petiton 186/2002-2003 dated 20th October 2003 ExD20 Certified copy of orders dated 27/02/2004 passed by the Hon'ble High Court of Karnataka in Writ Petitin No. 52507/2003(KLR-RES) filed by petitioners Sunil Bhatia and Suresh Bhatia against respondents ExD21 Certified copy of private complaint filed by Smt.P. Anasuya against plaintiffs herein and also Sri P. Satish Pai and R. Venkatesh [defendant No.5 herein] registered as PCR No.2472/2004 [C.C.No.1879/2009] on the file of ACMM Court, Bangalore.
ExD22 Certified copy of written statement filed by Smt. Anasuya and others defendant No.1 herein in this suit.
ExD23 Absolute sale deed dated 24/10/2002 152 O.S.No.15550/2003 XIII ADDL.CITY CIVIL AND SESSIONS JUDGEMAYOHALL UNIT; BANGALORE.
153
O.S.No.15550/2003 21/01/2020 Plaintiff by Sri HRA Defendant by Sri MVC D 2 Sri MLD D 3 Sri SA D 4 D 5 Sri MNA Judgment pronounced in the open court (Vide separate detailed Judgment) The suit of the plaintiffs is hereby decreed with costs.
It is ordered and decreed declaring that the sale deeds executed by defendant No.1 in favour of defendant No.2 and 3 registered as No. 1516/2001-02, dated:24/10/2002 is void and the same is not binding on the plaintiffs.
Further it is ordered and decreed that the defendants, their agents, servants, assigns or anyone acting or claiming on their behalf are 154 O.S.No.15550/2003 hereby permanently restrained from entering upon or in any way interferi ng with the peaceful possession and enjoyment of the property suit schedule property by plaintiffs.
The Counter claim filed by defendant No.1 is hereby dismissed with costs.
Draw decree accordingly.
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE