Bangalore District Court
In O.S. Sri.D. Venkatesh vs In O.S. 1. Sri. B.K.Subbaiah on 20 June, 2016
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE (C.C.H.No.8)
Dated this the 20th day of June 2016.
PRESENT: Smt.M.LATHA KUMARI, M.A, LLM.,
XI Addl.City Civil Judge, B'lore city.
O.S.No.2413/1994c/w 7489/1999
PLAINTIFF in O.S. Sri.D. Venkatesh,
No.2413/1994: S/o Dasappa, major,
R/atNo.51, I Main road,
Seshadripuram,
Bangalore-20
(Sri. B.Bhavani Shankar, advocate)
: Vs :
DEFENDANTS in O.S. 1. Sri. B.K.Subbaiah
No. 2413/1994 s/o late B.K.Krishnaiah,
major, R/at No.5,
Saurastrapet,
Bangalore-53
(Dead, suit against D.1 stands
abated)
2. Sri. S.Nagaraja,
S/o P.M.Sampath Kumar,
major, R/at No.149, II stage,
Okalipuram, Bangalore.
3. Sri. S.V.Pathy,
S/O P.M.Sampath Kumar,
major, R/at No.5, II stage,
Okalipuram, Bangalore.
2 O.S.No. 2413/1994 C/w 7489/1999
4. The Commissioner,
Bangalore City Corporation ,
Bangalore
(Suit against D.4 is rejected)
(Sri.M.Shanmukhappa, advocate for
D.2 and D.3)
Plaintiff in O.S. No. 1. Sri. S.Nagaraja,
7489/1999: S/o P.M.Sampath Kumar,
major, R/at No.149, II stage,
Okalipuram, Bangalore.
2. Sri. S.V.Pathy,
S/O P.M.Sampath Kumar,
major, R/at No.5, II stage,
Okalipuram, Bangalore.
(Sri.M.Shanmukhappa, advocate)
.vs.
Defendant in O.S. Sri.D. Venkatesh,
No.7480 of 1999: S/o Dasappa, major,
R/atNo.51, I Main road,
Seshadripuram,
Bangalore-20
((Sri. B.Bhavani Shankar, advocate)
Date of the institution of suit
in O.S.No. 2413/1994:
22.4.1994
In O.S. No. 7489/99: 1.10.1999
3 O.S.No. 2413/1994 C/w 7489/1999
Nature of the suit in O.S.
No.2413/1994:: Specific performance
In O.S. No. 7489/1999 Declaration and injunction
Date of the commencement of
recording of the evidence :
In O.S. No. 2413/1994:
10.12.2002
17.9.2002
In O.S. No. 7489/1999:
Date on which the judgment
was pronounced in both
20.6.2016
cases :
Total duration: Year/s Month/s Day/s
In O.S. No.2413/1994: 22 01 28
16 08 19
In O.S. No.7489/1999:
XI Addl.City Civil Judge,
B'lore city.
COMMON JUDGMENT
The Plaintiff D.Venkatesh in O.S. No.2413/1994 is
filed this suit against defendant No.1 to 4 initially to declare
registered sale deed dated 31.5.1991 and 1.6.1991 executed
by 1st defendant in favour of defendant No.2 and 3 as null
and void and for specific performance of an agreement of sale
4 O.S.No. 2413/1994 C/w 7489/1999
and also for consequential relief of permanent injunction
against defendant No.1 to 3 and mandatory injunction
against 4th defendant.
2. During the pendency of this suit, 1st defendant died
without having nay Legal Representatives and plaintiff
accordingly, got amended the prayer column and sought for
direction to direct 2nd and 3rd defendant to convey the
property in question to the plaintiff, alternatively to direct the
defendants No.2 and 3 to pay the plaintiff Rs.11,44,000/-
with interest at the rate of 18% p.a from the date of suit till
realization.
3. The defendants 2 and 3 in O.S. No.2413/1994 have
filed O.S. No.7489/1999 against plaintiff in
O.S.No.2413/1994 for recovery of possession of property in
question and for mesne profits.
4. The brief facts of the plaintiff's case in
O.S.No.2413/1994 is that 1st defendant entered into an
unregistered mortgage deed on 29.10.1989 for a period of 5
years in respect of property bearing New No.51 (Old No.63),
1st Main Road, Seshadripuram, Bengaluru measuring east-
west 110 feet and north-south 35 feet consisting of Madras
RCC roofing house, herein after referred to as suit schedule
5 O.S.No. 2413/1994 C/w 7489/1999
property for a sum of Rs.1,00,000/- and paid Rs.50,000/-
on the same day vide cheque bearing No. 0389688 and
agreed to pay the balance of Rs.50,000/- at the time of
registration of the mortgage deed. The plaintiff was put in
possession of the suit schedule property. It is plaintiff's
further case that during the existence of said mortgage, 1st
defendant executed sale advance agreement on 25.2.1991
and received Rs.50,000/- by way of cash and agreed to sell
the suit property for a sale consideration of Rs.14,00,000/-.
Since he was in need of ready liquid funds to meet his legal
and family necessity and for medical expenses and also to
discharge certain debts. 1st defendant later on 22.8.1991
entered into agreement to sell to over come his financial
stringency and received a further sum of Rs.10,44,000/-
through various cheques, undertaken to deliver all the
original documents and title deeds including latest tax paid
receipts, encumbrance certificate , katha extract etc., within a
month so as to enable the get his sale deed drafted for
registration.
5. The plaintiff further asserted that the time is essence
of the contract. Inspite of plaintiff being always ready and
willing to perform his part of contract, by paying balance sale
consideration amount of Rs.2,56,000/- the 1st defendant has
been using illegal tactics to dispossess the plaintiff from the
6 O.S.No. 2413/1994 C/w 7489/1999
suit schedule property. In view of serious threat from him in
this regard, plaintiff constrained to file O.S. No.4606/1993
against the very 1st defendant herein for the relief of
injunction simplicitor.
6. The plaintiff further asserted that in view of the facts
and circumstances, he exchanged some correspondence and
made several request to the 4th defendant to effect khatha
change in anybody's favours in respect of suit property.
When such being the case, he was shocked to know that 1st
defendant had sold the suit schedule property in favour of
2nd and 3rd defendant vide registered sale deed dated
31.5.1991 and 1.6.1991 respectively for a meager sale
consideration just to deceive his legitimate right, inspite of
having knowledge of the court's order in O.S.
No.4606/1993.
7. Further plaintiff got amended para No.12 of plaint
and asserted that 1st defendant having agreed to sell suit
property to him for Rs.14,00,000/- and having received
major portion of sale consideration of Rs.11,44,000/-,
defendant No.2 and 3 had got the schedule property conveyed
to them colluding with each other and hence plaintiff
asserted that said sale deeds are liable to be cancelled.
Hence, this suit for the relief mentioned supra.
7 O.S.No. 2413/1994 C/w 7489/1999
8. On issuance of summons, defendants 1 to 3 appeared
through common advocate Sri.S.S.S, defendants 2 and 3 filed
their common written statement and 1st defendant filed
memo as per order dated 7.9.1994 adopting the written
statement of defendant No.2 and defendant No.3. 4th
defendant being Corporator appeared through his counsel
Sri. P.P.B and resisted the suit by filing his written
statement.
9. Defendants asserted that 1st defendant never
executed any mortgage deed nor put plaintiff in possession of
the suit schedule property nor received a chque nor
encashed the cheque. 1st defendant never agreed to sell the
suit schedule property in favour of plaintiff. Rather 1st
defendant entered into agreement with defendant No.2 and 3
to sell the suit schedule property and in pursuance of suit
agreement, executed sale deed and put them in possession
of the suit schedule property. In turn defendants 2 and 3
have let out the premises to their tenants. Plaintiff probably
by colluding with their tenants created some documents to
show that he is in possession of suit schedule property.
Khatha pertaining to o suit schedule property is changed in
their name and defendant No.1 himself is not the owner of
suit schedule property and hence, prayed for dismissal of this
suit with cost.
8 O.S.No. 2413/1994 C/w 7489/1999
10. Defendants No.2 and 3 also later amended written
statement and asserted that when such being the case,
during the pendency of this suit, sale deed dated 2.6.1997
and 7.6.1997 is created in favour of plaintiff, said sale deed
does not show that Rs.14,00,000/- was paid as
consideration. 2nd and 3rd defendants also filed additional
written statement asserting that the relief claimed by
plaintiff by way of amendment is barred by law of limitation
and contrary to the pleadings on record. There is no privity
of contract between plaintiff and defendant No.2 and 3 and
nor received any amount from plaintiff and such relief is only
a baseless prayer.
11. 4th defendant filed his written statement asserting
the suit filed against him for mandatory injunction to cancel
katha effected in favour of defendants No.2 and 3 by Virtue
of sale deeds dated 31.5.1991 and 1.6.1991 is not
maintainable in law or on facts. The documents on which
the plaintiff claims right for registration of katha in his name
do not confer any right, title or interest in his favour in the
suit schedule property. There is no cause of action for the
suit against him and hence, pray to dismiss the suit.
9 O.S.No. 2413/1994 C/w 7489/1999
12. However, by order dated 14.2.1996 of this court, the
plaint against the 4th defendant is rejected under Order 7
Rule 11(d) C.P.C.
13. During the pendency of this suit, 1st defendant died
and plaintiff himself filed I.A.No.22 under Sec. 151 CPC
seeking permission of this court to note in the cause title
to the plaint that the 1st defendant B.K. Subbaiah died on
20.9.2001 leaving behind him no Legal Representatives. This
application came to be allowed on 16.2.2010.
14. These defendants 2 and 3 have filed suit in O.S.
No.7489/1999 against the plaintiff in O.S.No.2413/1994
for recovery of possession of the suit schedule property and
for mesne profits in respect of very same suit schedule
property asserting that B.K.Subbaiah the 1st defendant in
O.S.No.2413/1994 sold the suit schedule property in their
favour, earlier said B.K.Subbaiah executed registered
agreement to sell in favour of 1st plaintiff that is 2nd
defendant in O.S.No.2413/1994 and later as per their
request, two sale deeds each in respect of half of the
property. The 1st plaintiff purchased eastern half portion and
2nd plaintiff purchased western half portion by sale deed
dated 31.5.1991 and 1.6.1991 respectively. They are
directed brothers and absolute owners of the suit schedule
10 O.S.No. 2413/1994 C/w 7489/1999
property, they got the katha changed in their name and paid
amount to the corporation. The defendant at one stage
entered into an agreement to take the property by mortgage
and gave two cheques each for Rs.50,000/- in favour of said
B.K.Subbaiah. But both cheques were dishonoured.
B.K.Subbaiah not executed any such document and nor any
agreement to sell dated 22.8.1991. The said agreement is null
and void. The plaintiff in O.S.No.2413/1994 is entitled to pay
damages for wrongful use and occupation of suit schedule
property. Hence, this suit for the relief mentioned supra.
15. On issuance of suit summons, the defendant, who is
none other than plaintiff in O.S.No.2413/1994 asserting that
plaintiffs have obtained sale deeds dated 1.6.1991, 31.5.1991
fraudulently by one Muniraju, who is none other than their
brother. Further plaintiffs have not issued any notice to him,
who is in possession of the suit schedule property since
1989. Suit itself is not maintainable and hence, pray for
dismiss the suit with costs.
16. Based on these respective pleadings, the following
issues and additional issues framed:-
11 O.S.No. 2413/1994 C/w 7489/1999
Issues in O.S. No. 2413/1994:
1.Whether the plaintiff proves that the sale
deeds dated 31.5.1991 and 1.6.1991 executed
by the 1st defendant in favour of the 2nd and
3rd defendants conveying the suit schedule
property are illegal?
2. Whether the plaintiff proves his lawful
possession over the suit schedule property on
the date of the suit?
3. Whether the plaintiff further proves unlawful
interference by the defendants?
4. Whether the plaintiff is entitled to the reliefs
sought for?
5. To what decree or order?
Additional Issues framed on 5.3.2007:-
1. F zÁªÉUÀà ¸ÀjAiÀiÁzÀ £ÁåAiÀÄÁ®AiÀÄ ±ÀÄ®Ì PÀnÖ®è
JA§ÄzÀ£ÀÄß ¥ÀæwªÁ¢UÀ¼ÀÄ ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀgÉ?
2. zÁªÉAiÀÄ°è PÉýgÀĪÀAvÉ ¢B 25.2.1991 ªÀÄvÀÄÛ ¢B22.8.1991 gÀ
PÀgÁgÀÄ ¥ÀvÀæUÀ¼À ¤¢üðµÀÖ PÀvÀðªÀå ¥Á®£ÉUÉ rQæ ¥ÀqÉAiÀÄ®Ä
ªÁ¢ CºÀðgÉÃ?
3. ¢B 25.2.1991 ªÀÄvÀÄÛ ¢B22.8.1991 gÀ PÀgÁgÀÄ ¥ÀvÀæUÀ¼À ¥ÀæPÁgÀ
vÀ£Àß ¥Á°£À J¯Áè PÀvÀðªÀåUÀ¼À£ÀÄß ¤ªÀð»¸À®Ä ¸ÀzÁÝ Eaé¤
vÀAiÀiÁgÁVgÀĪÀÅzÀ£ÀÄß ªÁ¢ ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀgÉÃ?
12 O.S.No. 2413/1994 C/w 7489/1999
4. 2 ªÀÄvÀÄÛ 3 £Éà ¥ÀæwªÁ¢UÀ¼À ºÉ¸ÀjUÉ zÁªÁ D¹ÛAiÀÄ SÁvÉ
ªÀUÁðªÀuÉAiÀiÁVgÀĪÀÅzÀ£ÀÄß gÀzÀÄÝUÉƼÀ¸À®Ä PÉɽgÀĪÀ ¥ÀjºÁgÀ
¥ÀqÉAiÀÄ®Ä ªÁ¢ CºÀðgÉÃ?
5. F zÁªÉAiÀÄÄ CªÀ¢ü ¥Àj«ÄwAÄÉÄAzÀ ¨sÁ¢vÀªÁVzÉ
JA§ÄzÀ£ÀÄß ¥ÀæwªÁ¢UÀ¼ÀÄ ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀgÉÃ?
6. ¢B22.8.1991 gÀ PÀæAiÀÄzÀ PÀgÁgÀÄ ¥ÀvÀæ §gɬĹ PÉÆqÀ®Ä
1£Éà ¥ÀæwªÁ¢UÉ ºÀPÀÄÌ EvÀÄÛ JA§ÄzÀ£ÀÄß ªÁ¢ ¸Á©ÃvÀÄ
¥Àr¸ÀĪÀgÉÃ?
7. zÁªÁ D¹ÛAiÀÄ£ÀÄß ªÁ¢UÉà 14 ,00,000-00 (ºÀ¢£Á®ÄÌ
®PÀë) gÀÆ UÀ½UÉ ªÀiÁgÁl ªÀiÁqÀ®Ä M¦à ¢B 25.2.1991
ªÀÄvÀÄÛ ¢B22.8.1991 gÀ PÀgÁgÀÄ ¥ÀvÀæUÀ¼À£ÀÄß §gɬĹ
PÉÆlÖgÀĪÀÅzÀ£ÀÄß ªÁ¢ ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀgÉÃ?
8. ¢B 25.2.1991 ªÀÄvÀÄÛ ¢B22.8.1991 gÀ PÀgÁgÀÄ ¥ÀvÀæUÀ¼À£ÀÄß
ªÁ¢ £ÀPÀ° ªÀiÁrzÁÝgÉ JA§ÄzÀ£ÀÄß ¥ÀævÀªÁ¢AiÀÄÄ ¸Á©ÃvÀÄ
¥Àr¸ÀĪÀgÉÃ?
9. ªÁ¢¬ÄAzÀ 1£Éà ¥ÀæwªÁ¢ gÀÆ. 11,44000/- (ºÀ £ÉÆßAzÀÄ
®PÀëzÀ £À®ªÀvÀÛ£Á®ÄÌ ¸Á«gÀ) gÀÆUÀ¼À£ÀÄß PÀæAiÀÄzÀ ªÀÄÄAUÀqÀ
ºÀtªÀ£ÁßV ¹éÃPÀj¹PÀzÁÝgÉ J£ÀÄߪÀÅzÀ£ÀÄß ªÁ¢ ¸Á©ÃvÀÄ
¥Àr¸ÀĪÀgÉÃ
10. ¢. 2-6-1997 ªÀÄvÀÄÛ ¢B 7-6-1997 gÀAzÀÄ 1 £ÉÃ
¥ÀæwªÁ¢UÉ zÁªÁ D¹ÛAiÀÄ §UÉÎ ªÁ¢UÉ PÀæAiÀÄ ¥ÀvÀæ §gɬĹ
PÉÆqÀ®Ä ºÀPÀÄÌ EvÀÄÛ J£ÀÄߪÀÅzÀ£ÀÄß ªÁ¢ ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀgÉÃ
11. ¢. 2-6-1997 ªÀÄvÀÄÛ ¢B 7-6-1997 gÀ PÀæAiÀÄ
¥ÀvÀæUÀ¼À£ÀÄß ªÁ¢ ¸ÀȹֹPÉÆArzÁÝgÉA§ÄzÀ£ÀÄß ¥ÀæwªÁ¢UÀ¼ÀÄ
¸Á©ÃvÀÄ ¥Àr¸ÀĪÀgÉÃ
12. ¥ÀgÁåAiÀÄ ¥ÀjºÁgÀªÁV ªÁ¢AiÀÄÄ ¥ÀæwªÁ¢UÀ½AzÀ
11,44,000/- gÀÆ.UÀ¼À£ÀÄß ±ÉÃPÀqÀ 18% gÀAvÉ §rØ
¸À»vÀ ¥ÀqÉAiÀÄ®Ä ªÁ¢ CºÀðgÉÃ
13 O.S.No. 2413/1994 C/w 7489/1999
Issues in O.S. No. 7489/1999 :
1. Whether the plaintiffs prove that they are the
absolute owners of the suit property?
2. Whether the plaintiffs prove that they are
entitled for possession of suit property?
3. Whether the plaintiffs prove that they are
entitled for a sum of Rs.3,60,000/- and mesne
profits from the date of suit till delivery of
property?
4. Whether the defendant proves that there is no
cause of action?
5. Whether the suit is barred by law of
Limitation?
6. Whether the court fee paid is insufficient?
7. Whether the plaintiffs are entitled for
declaratory relief as prayed for?
8. Whether the plaintiffs are entitled for
possession of suit property?
9. Whether the plaintiffs are entitled for a sum
of Rs.3,60,000/- and mesne profits as prayed
for?
10. What order or decree?
14 O.S.No. 2413/1994 C/w 7489/1999
17. As per the direction of Hon'ble High Court in
W.P.No.15031/2009 dated 27.7.2010 preferred by plaintiffs
in O.S. No. 7489/1999. The another two suits are clubbed
and tried together by recording common evidence.
18. The plaintiff in O.S.No.2413/1994 D.Venkatesh got
examined himself as P.W.1 by filing his chief affidavit on
7.4.2007, later executed GPA in favour of his brother stating
that he is hospitalized by order dated 14.8.2007. Brother of
P.W.1 D.Rajagopal got examined himself as P.W.2 and got
marked as many as 129 documents Ex.P.1 to P.129. One
M.L. Jawaharlal and R.Vittal were examined as P.W.3 and
P.W.4 as a witness on behalf of plaintiff in
O.S.No.2413/1994.
19. On behalf of defendant No.2 and 3 in
O.S.No.2413/1994, whoa re also plaintiffs in O.S. No.
7489/1999 S.Nagaraj 2nd defendant got examined himself as
D.W.1 and got marked 7 documents as Ex.D.1 to Ex.D.13.
Apart from Ex.P.1 to P.5 marked in O.S. No. 7489/1999
during his chief examination.
20. I have carefully scrutinized entire records before
me. Heard arguments. Heard arguments of respective
15 O.S.No. 2413/1994 C/w 7489/1999
counsel and perused written arguments filed by respective
parties.
21. My answers to the above issues are as follows:-
Issue No. 1 to4 in O.S. In the negative
No. 2413/1994:
Additional Issue No.1, 2, In the negative;
3, 5,6,7, 89 in O.S. No.
2413/1994:
Additional Issue No.4 in Does not arise
O.S. No. 2413/1994:
Additional Issue In the affirmative
No.6,10,11 in O.S. No.
2413/1994:
Issue No.1, 2,3,6,7,8 and In the affirmative:
9 in O.S. No.7489/1999:
Issue No.4 and 5 in O.S. In the negative
No. 7489/1999:
Issue No.5 in O.S. No. As per final order for the
2413/1994 and Issuefollowing reasons:
No.10 in O.S.
No.7489/1999:
REASONS
22. Additional Issues No.2, 3, 7, 8 and 9: These
issues are taken together on priority to avoid repetition of facts
and circumstances of the case and also for convenience.
16 O.S.No. 2413/1994 C/w 7489/1999
It is the case of plaintiff D.Venkatesh that deceased
1st defendant Subbaiah B.K executed Ex.P.19 mortgage
deed on 29.10.1989 and mortgage the suit property for a period
of 5 years for a sum of Rs.1,00,000/- and on the same day,
Rs.50,000/- was paid to Subbaiah through cheque agreed to
repay the balance of Rs.50,000/- at the time of registration of
mortgage deed. Further it is asserted that due to financial
problems, B.K.Subbaiah offered to sell the suit schedule
property to the plaintiff D.Venkatesh himself for a sale
consideration of Rs.14,00,000/- and executed sale advance
agreement on 25.2.1991 and received another Rs.50,000/-.
Hence, Rs.1,00,000/- in all way paid and balance of
Rs.13,00,000/- shall be agreed to payable at the time of
registration of sale deed. Again a sale agreement came to be
executed on 22.8.1991 by receiving Rs.10,44,000/- vide
various cheques. Under this agreement, the balance sale
consideration amount of Rs.2,56,000/- was agreed to be paid
at the time of registration of sale deed agreeing to complete the
transaction within 3 years from the date of said sale
agreement.
23. Whether execution of these three documents i.e.,
mortgage deed, sale advance agreement and sale agreement by
B.K.Subbaiah in favour of plaintiff is established by plaintiff?
Is a point to be considered at this stage. Though plaintiff
17 O.S.No. 2413/1994 C/w 7489/1999
Venkatesh has filed O.S.No.2413/1994 on 22.4.1994 . Only on
17.9.2002 chief examination by way of affidavit i.e., almost
after 8 years, an affidavit of plaintiff came to be filed through
his counsel as per order sheet dated 17.9.2002 and matter
deferred to 25.10.2002 to mark the documents. This affidavit
of P.W.1 sworn on 16.9.2002 and filed before court on
17.9.2002 only through his counsel. On 7.4.2009, this
affidavit was discarded and plaintiff Venkatesh filed his chief
affidavit afresh as P.W.1 and pray for time for further chief
examination. On 14.8.2008 P.W.1 reported to be hospitalized
and hence, matter posted to 27.9.2007. On 27.9.2007,
plaintiff's advocate filed as many as 7 documents including
GPA executed by P.W.1 in favour of his brother along with
his chief affidavit. The brother of plaintiff D.Rajagopal was
examined further on the same day and got marked as many as
7 documents Ex.P.1 to P.7. Ex.P.1 is the GPA . In this
document, P.W.1 asserted that he is not keeping good health
and unable to attend the court to prosecute his suit for specific
performance in O.S.No.2413/1994. It was his brother P.W.2,
who had negotiated for the purchase of suit property and
hence, he is executing Ex.P.1 not only conduct this case bent
also to mortgage, alienate or to perform any such acts in
respect of suit property. The age of P.W.1 is shown as 42
years on the date of Ex.P.1 and for the first time, P.W.1
asserts that his brothers negotiated the alleged sale transaction
18 O.S.No. 2413/1994 C/w 7489/1999
of suit property. Ex.P.2 is the certified copy of sale deed dated
2.6.1997 and Ex.P.3 is the certified copy of sale deed dated
7.6.1997 executed by B.K.Subbaiah in respect of western
half and eastern half of the suit property Ex.,P.4 is the
revocation of GPA dated 16.2.1996 executed by B.K.Subbaiah
in favour of defendant No2. and 3 vendor Muniraju. Ex.P.5 is
the revocation of GPA dated 156.12.1996 executed in favour
of defendant No.2. Ex.P.6 is the certified copy of memo filed
by 1st defendant with affidavit and Ex.P.7 is the affidavit of
deceased defendant No.1. Accordingly, these 7 documents
are subsequent documents and also P.W.2 in para No.17 of his
chief affidavit asserted that B.K.Subbaiah realised that he
received more than 75% of the sale consideration from the
plaintiff pursuant to the cheques dated 25.2.1991 and
22.8.1991 and suit property was conveyed illegally and
fraudulently to the 2nd and 3rd defendant and hence, executed
Ex.P.2, P.3 in favour of P.W.1. Where as neither P.W.1 nor
P.W.2 at that time produced suit documents i.e., sale advance
agreement dated 25.2.1991 and sale agreement dated
22.8.1991 even during further chief examination being vital
documents. As per office objections dated 22.4.1994, Original
suit agreements not produced along with plaint. Hence
plaintiff Venaktesh filed a suit on 22.4.1994 by producing
only Xerox copies of the suit documents, which is also cleared
from column 9 of check slip. Further P.W.2 has examined in
19 O.S.No. 2413/1994 C/w 7489/1999
chief on 24.11.2007 and got marked another 11 documents
Ex.P.8 to P.18.
24. The learned counsel for defendants vehemently
argued that in view of earlier suit of plaintiff against the very
1st defendant in O.S. No.4606 of 1993 this suit is not only
barred by the provisions of Order 2 Rule 2 CPC and also not
maintainable in view of this suit based on Xerox copies of
documents. P.W.2 on 20.6.2008 4 documents along with
I.A.No.10 under Sec. 65 of Indian Evidence Act and sought
permission to lead secondary evidence by marking Xerox copies
of suit documents. These documents are as per Ex.P.19 to
P.21. Ex.P.22 to P.24 are Xerox copies of income tax returns.
Whether there Xerox copies entitles the plaintiff to obtain a
decree of specific performance . Admittedly plaintiff claming
his reliefs by producing Xerox copies . Plaintiff never subjected
himself for cross-examination , not entered witness box and
executed GPA in favour of P.W.2. Further at the time of
recording their evidence, 1st defendant was no more. Under
such circumstances, the burden was heavy on plaintiff
Venaktesh that he will make their secondary evidence
authenticated by placing fundamental evidence and thereby
accounted for non production of originals. Whether plaintiff
P.W.1 has discharged his burden? In this regard now let me
scan through cross-examination of P.W.2. Since it is the
20 O.S.No. 2413/1994 C/w 7489/1999
contention of P.W.2 while searing an affidavit annexed to
I.A.No.10 that original documents were produced in another
suit O.S. No.4606 of 1993 against 1st defendant for
permanent injunction in respect of suit schedule property and
said suit came to be disposed off on 24.3.1995, they filed an
application to secure certified copies of the same and also to
take back the originals and this application came to be
rejected stating that case file destroyed on 24.7.2007 and
hence, produce Xerox copies at the time of filing of this suit.
P.W.2 deposes that plaintiff discussed with regard to suit
property with 1st defendant for the first time on 29.10.198.
P.W.2 admits that plaintiff has filed O.S. No.4606 of 1993
prior to this suit against defendant. P.W.2 pleads his
ignorance to identify the copy of written statement filed by
defendant No.1 in that case stating that he is not conversant
with English language. P.W.2 further deposes that he is also
not fully aware of contents of documents produced on behalf
of P.W.1 . Since even those documents are in English. It is
also elicited that plaintiff came to know that the sale deeds
executed by defendant No.1 in favour of defendant No2. and
defendant No.3 during the year 1993 and he do not remember,
whether in the said suit, 1st defendant pleaded and filed his
written statement, stating that he has sold suit property in
favour of defendant No.2 and defendant No.3 P.W.2 further
deposes that they came to know the said sale transaction ,
21 O.S.No. 2413/1994 C/w 7489/1999
when galata took place during 1993 i.e., prior to O.S. No.4606
of 1993 seeking to vacate suit property. P.W.2 also deposes
that he do not know that the suit in O.S. No.4606 of 1993
came to be dismissed. P.W.2 in page 23 of his cross-
examination deposes that P.W.1 and 1st defendant themselves
directly transacted in respect of Ex.P.19 to P.21. For any
relevant question put forth to him during his cross-
examination, P.W.1 manage to give clear answers by disposing
that he do not remember the same. P.W.2 also denied that
plaintiff was not having financial capacity to give account
shown in Ex.P.19 to P.21. However neither plaintiff nor P.W.2
have produced any documents to show that actually an
amount of Rs.11,44,000/- in all as on the date of Ex.P.21 i.e.,
22.8.1991.
25. As I have already stated this is a suit of the plaintiff
based on Xerox copies against defendant No1. to 3. During
the pendency of suit, 1st defendant died and further number of
times plaintiff got amended his plaint and prayer column. At
subsequent stage, it is also pleaded that 1st defendant realized
and executed Ex.P.2 and P.3 in favour of plaintiff based on
Ex.P.19 to P.21. Plaintiff admittedly filed suit earlier to this
in O.S. No.4606 of 1993. It is also not in dispute that plaintiff
requested BBMP , the 4th defendant against whom this plaint
came to be rejected seeking not to change katha pertaining to
22 O.S.No. 2413/1994 C/w 7489/1999
suit property as per Ex.P.26. These circumstances requires
and enables this court not only to consider these documents
of plaintiff in detail but also very cautiously. So as to see that
no person shall be allowed to approach the court with clean
hands and heart.
26. Further as per the provisions of Order 2 Rule 1 and 2
C.P.C, every suit shall as far as practicable be framed so as
to afford ground for final decision upon the subjects in
dispute and to prevent further litigation, concerning them. It
reads as follows:
"Order 2 Rule 1 and 2: (1) Every suit
shall include the whole of the claim, which
the plaintiff is entitled to make in respect
of the cause of action , but a plaintiff may
relinquish any portion of his claim in order
to bring the suit within the jurisdiction of
any court.
(2) Relinquishment of part of claim: Where a
plaintiff omits to sue in respect of or
intentionally relinquishes any portion of
his claim, he shall not after wards sue in
respect of the portion so omitted or
relinquished."
27. Hon'ble Supreme Court as early on 1961 itself in AIR
1961 S.C 1419 observed that "The party not asking for all the
reliefs to which he was entitled or he should have claimed
23 O.S.No. 2413/1994 C/w 7489/1999
cannot bring second suit in respect of the same relief. The
object of Rules 1 and 2 of Order 2 is to prevent multiplicity of
suit. Hon'ble Supreme Court in AIR 1970 S.C 1059 observed
that the cardinal principle is that a person shall not be vexed
wise on the same cause of action. The term cause of action
means the cause of action for which a suit was brought. The
cause of action which gives rise to action, which gives occasion
for and forms the foundation of the suit. If that cause enables a
person to ask for a larger and wider relief than that to which is
limits his claim, he cannot afterwards seek to revoke the
balance by independent proceeding.
28. Further Hon'ble Supreme Court in AIR 1977 S.C 1466
observed that a plaintiff would be barred under Order 2 Rule 2
only when he omits to sue or when he relinquishes portion of
his claim with the knowledge that he has right to sue for that
relief,.
29. With these principles in background let me scan
through documents Ex.P.26 and P.27 produced by plaintiff
himself through P.W.2. Ex.P.26 is the requisition given by
plaintiff to the court, Bengaluru city Corporator requesting not
to transfer the katha in respect of suit property in favour of
3rd parties stating that he has got right, title and interest over
this suit property by virtue of Ex.P.19 to P.21. As per Ex.P.27
24 O.S.No. 2413/1994 C/w 7489/1999
Bengaluru city Corporator issued endorsement staging that as
per objections , application dated 23.7.1993 issued by plaintiff
in respect of suit property an enquiry was conducted on
8.9.1993 and on 13.9.1993 Plaintiff produced certain
documents which revealed that O.S. No.4606 of 1993 is
pending before certified copy of and hence, directed the
plaintiff to approach Bengaluru City Corporation for further
action, subsequent to judgment of O.S. No.4606 of 1993.
30. Hence, on perusal of documents Ex.P.27 produced
and relied upon by plaintiff, plaintiff himself gives such
objection application on 23.7.1993 itself, which is much prior
to suit in O.S. No.4606 of 1993, which was filed by plaintiff i.e.,
on 26.7.1993. Further plaintiff filed said suit in O.S. No.4606
of 1993 against deceased 1st plaintiff B.K.Subbaiah for the
relief of permanent injunction restraining defendants or
anybody claiming under him from interfering with the peaceful
possession and enjoyment of the suit property and also from
alienating the suit property. In the said suit, 1st defendant filed
his written statement stating that the plaintiff entered into
an agreement with the defendant to pay a sum of
Rs.1,00,000/- and get mortgage deed, but in pursuance of the
said agreement, he gave a cheque for Rs.50,000/- and it was
dishonoured and the banker's endorsement was already
produced before the court and he never paid any amount, b
25 O.S.No. 2413/1994 C/w 7489/1999
much less a e sum of Rs.1,00,000/-. He never agreed to sell
the suit property for Rs.14,00,000/-. As can be seen the
cheque for Rs.50,000/- towards the agreement of mortgage
was dishonoued, when he is not in position to pay Rs.50,000/-
the question of paying lakhs of rupees would not arise. 1st
defendant further asserted that plaintiff has not money at
all. He himself encashed the cheque through one Raj Singh
and same amount was once again put to the bank and
encumbrance cashed the same through cheque by forging the
signature. It is well within his knowledge that he was sold the
property in the year 1991 itself and there is no cause of action
for said suit.
31. The prayer sought by plaintiff in O.S. No.4606 of 1993
by plaintiff referred supra, the contention of defendant No.1
and also Ex.P.27 establishes that plaintiff was very much
aware of sale deeds executed in favour of defendant No.2
and 3 by defendant No.1 in respect of suit property as on
23.7.1993 itself and also at subsequent stage in O.S. No.4606
of 1993. Inspite of the same, plaintiff neither amended the
said plaint nor prayer column nor contested the suit, which
was dismissed for non prosecution on 24.3.1994. It is the case
of plaintiff that Ex.P.19 to P.21 are his title documents
pertaining to suit property and originals, he has produced in
O.S. No.4606 of 1993. Said suit dismissed on 24.3.1995 and
26 O.S.No. 2413/1994 C/w 7489/1999
further plaintiff filed O.S.No.2413/1994 on 22.4.1994.
Based on same documents by producing that "Original suit
agreement not produced along with plaint."
32. As I have already stated plaintiff filed I.A.No.10 under
Sec. 65 of Evidence Act in support of his secondary evidence,
plaintiff produce Ex.P.25 and P.25(a) stated that original file
in O.S. No.4606 of 1993 has been destroyed by office on
24.7.2007 itself and hence, he is unable to produce either
original or certified copy of Ex.P.19 to P.21.
O.S.No.2413/1994 posted for plaintiff's evidence on
27.10.1999 as last chance and plaintiff called out absent on
that as per order sheet. As per Ex.P.25, plaintiff filed copy
application on 18.3.2008 seeking certified copy of his
documents Ex.P.19 to P.21 and this application was actually
signed by plaintiff Venkatesh himself on 18.3.2008. This
establishes that plaintiff was in touch with his counsel as on
March 2008 also. Under these circumstances, the contents
of GPA executed by him as per Ex.P.1 on 29.8.2007 that he is
not keeping steady health appears a vague statement.
33. Plaintiff admittedly claiming rights over suit property
on the basis of Ex.P.19 to P.21. According to him the originals
of these documents were produced by him in O.S. No.4606 of
1993. When such being the case, even when this matter was
27 O.S.No. 2413/1994 C/w 7489/1999
posted for plaintiff's evidence and during 2002 itself, plaintiff
not at all bother to collect either his original documents or
certified copies of the said documents and produced before this
court. As per Ex.P.25, he has applied seeking only certified
copies of the documents on 18.3.2008. Whereas said suit
came to be dismissed in the year 1995 itself. Hence, even after
lapse of 10 years, plaintiff not bother to take back his
originals not certified copies of the same, which are according
to him the very title documents against his claim in respect of
suit property. Admittedly Ex.P.19 which is styled as mortgage
deed is an unregistered document. According to him, he was
put in possession of the suit property in pursuance of Ex.P.19.
Admittedly original of Ex.P.19 is not placed before this court
either at the time of filing of the suit or at the time of his
evidence. Further plaintiff not entered the witness box and
subjected himself for cross-examination and executed GPA as
per Ex.P.1 in favour of brother P.W.2 stating that he is not
having steady health and P.W.2 himself transacted this
transaction and hence, he is capable of conducting this case
and also managed the suit property. Where as P.W.2 deposes
in his cross-examination that plaintiff and deceased 1st
defendant transacted directly amongst themselves in respect
of Ex.P.19 to P.21. This version of P.W.2 recorded on oath
falsifies the recitals of plaintiff in Ex.P.1 that his brother P.W.2
had negotiated for the purchase of the suit property and he is
28 O.S.No. 2413/1994 C/w 7489/1999
very familiar with the facts of the suit schedule property in the
above suit. Ex.P.1 under which, plaintiff claiming relief over
suit property and also his possession over suit property is an
unregistered document. It is not in dispute that a decree
relating to immovable property worth more than Rs.100/- if
being assessed was required to be registered. When law
requires certain acts to be done in respect of documents
pertaining to alienation/assignment and if we were to let it go
as such, it would defeat the ends of justice and the relevant
public policy. When the court intends to get particulars of
state of affairs to exist that state of affairs is not only required
to be maintain, but it is resume to exist till the court orders
otherwise. The court in these circumstances, as the duty as
also the right to treat the alienation /assignment as having
not taken place at all for its purposes. Plaintiff without even
getting his mortgage deed registered in accordance with law.
Now cannot take shelter under such an unregistered
document. Further even in Ex.P.19, though there is no recitals
that plaintiff shall pay another Rs.50,000/- to the deceased 1st
defendant at the time of registration of mortgage deed, there is
no recitals about when such mortgage deed shall be executed
by 1st defendant in favour of plaintiff herein. On the other
hand , defendants asserted that Rs.50,000/- by way of cheque
paid under Ex.P.19 came to be dishonoured. Accordingly, no
amount has been passed to the 1st defendant under Ex.P.19.
29 O.S.No. 2413/1994 C/w 7489/1999
Admittedly 1st defendant is no more and the burden is heavy
on the plaintiff, who is claiming relief under these documents
to establish that he has paid Rs.50,000/- under Ex.P.19 and
another Rs.10,44,000/- under Ex.P.20 and P.21. At the time of
producing plaint, in O.S.No.2413/1994, plaintiff produced
various documents including Xerox copy of his current
account maintained at Canara Bank, Sheshadripuram Branch
to show that as on the date of Ex.P.21, he has paid
Rs.10,44,000/- to the deceased 1st defendant herein.
According to plaintiff, Ex.P.21 was executed on 22.8.1991. In
page No.2 para No.1 of this document, plaintiff has stated
about various amounts paid along with its cheque number and
according to him as on the date of Ex.P.21, 1st defendant
had already realized these amounts. Whereas according to this
Xerox copy of current account statement, the cheque bearing
No.960596 for Rs.70,000/- is of the date 23.8.1991, whereas
this document Ex.P.21 came into existence on 22.8.1991 itself.
As per Ex.D.2 produced by D.W.1, the 1st defendant in
O.S.No.4606/1993 asserted that plaintiff kept some amount in
the bank and issued cheque and he himself encashed the
cheque and once again issued a cheque and he himself used
to encash the same. With this pleadings in background if I go
through the statement of current account produced by the
plaintiff, it is crystal clear that these cheques are dated
9.8.1991, 10.8.1991, 12.8.1991, 13.8.1991, 14.8.1991,
30 O.S.No. 2413/1994 C/w 7489/1999
16.8.1991, 17.8.1991, 19.8.1991 to 23.8.1991. Prior to
issuing of cheque, a cash came to be deposited on the same
day. This statement substantiated the defense of the 1st
defendant in O.S.No.4606/1993. Further if plaintiff was
always ready and willing to perform his part of contract either
under Ex.P.19 or under Ex.P.20 and P.21 and capable of
paying the sale consideration amount at once. There was no
need for him to give as many as 16 cheques for every
alternative dates to the 1st defendant would not have been
arise. Inspite of defense that plaintiff's cheque referred in
Ex.P.19 came to be dishonoured, plaintiff not bothered to place
any materials before this court to show that he has actually
paid the amount to the 1st defendant herein. Plaintiff is
claiming relief based on Xerox documents and insisting this
court to treat this document as secondary evidence. Whether
this contention can be accepted is a point to be considered at
this stage. As per Section.61 to 65, 67 and 73 of the Evidence
Act mere admission of documents in evidence does not
amounts to its proof. The provisions of Section.65(3) of
Evidence Act provide for permitting the parties to adduce
secondary evidence. When such a course subject to a large
number of limitations. In a case where original documents are
not produced at any point nor has any factual foundation
been laid for giving secondary evidence, it is not permissible
for court to allow a party to adduce secondary evidence.
31 O.S.No. 2413/1994 C/w 7489/1999
Relating to the contents of a document is inadmissible, until
the non production of the original is accounted for. Whereas in
the case on hand, plaintiff is not only unaccounted for his
action, but also not approached the court with clean hands.
This conduct is exhibited by his own document Ex.P.25, which
is applied after lapse of almost 13 years from the date of
disposal of the suit. That apart, the suit of the plaintiff is also
barred by the provisions of Order 2 Rule 2 C.P.C. discussed
supra. These facts and circumstances establishes that plaintiff
neither approached the court with clean hand nor with clean
heart and brain nor furnish the authenticated reasons for
allowing him to same relief under secondary evidence. It
appears that plaintiff is trying to squat on the suit property
based on certain unregistered document having no regards
towards law. That apart by filing such suits and also taking
advantage of the death of 1st defendant, plaintiff is only making
unnecessary admits before the court to take a decree of his
choice, which is not at all permissible under law. Accordingly, I
have answered Additional Issue No.2, 3, 6, 8 and 9 in the
negative.
34. Additional Issue No.No.4 in O.S.No.2413/1994 :
P.W.2 himself got marked two documents as per Ex.P.26 and
27, which is a letter addressed by the plaintiff herein to
32 O.S.No. 2413/1994 C/w 7489/1999
Bengaluru City Corporation and endorsement issued by them
respectively. During the pendency of the suit, 4th defendant
appeared through his counsel and resisted the suit of the
plaintiff by filing his written statement asserting that suit itself
is not at all maintainable against him and liable to be rejected
as per the provision of Order 7 Rule 11 C.P.C . By virtue of
such contention this court by order dated 14.8.1996 rejected
the plaint against 4th defendant. And subsequently plaintiff
also got amended the prayer "d" sought against defendants 2
and 3. Under such circumstances, question of considering
this issue does not arise. Accordingly, I have answered this
issue.
35. Additional Issue No.6, 10 and 11 in
O.S.No.2413/1994 : These three issues are taken up together
for consideration to avoid repetition of facts and circumstances
and also for convenience.
It is not in dispute that prior to filing of the suit, plaintiff
has filed O.S.No. 4606/1993 against the very 1st defendant
herein in respect of suit property for the relief of permanent
injunction based on suit documents Ex.P.19 to P.21 itself. In
the said suit, 1st defendant denied receipt of any amount from
the plaintiff either under Ex.P.19 or under Ex.P.20 and 21 and
categorically stated that he has executed sale deed in the year
33 O.S.No. 2413/1994 C/w 7489/1999
1991 itself and hence, question of executing any sale
agreement in favour of this plaintiff does not arise. In this
regard 2nd and 3rd defendant have also produced certified copy
of said written statement as per Ex.D.2. It is the case of 2nd
and 3rd defendants that plaintiff's G.P.A holder has executed
registered sale deeds dated 31.5.1991 and also 1.6.1991
against them in respect of suit property. The execution of
these sale deeds also accepted by P.W.2 and the very plaintiff
herein has sought for cancellation of said sale deeds. Whereas
plaintiff failed to establish that he has paid advance sale
consideration of Rs.11,44,000/- to the 1st defendant herein. On
the other hand, Ex.D.2 filed by very 1st defendant at an
undisputed point of time, establishes the execution of sale
deeds in respect of suit property in favour of defendants No.2
and 3. When such being the case, during the pendency of the
suit, plaintiff got amended his plaint and inserted a pleading
stating that 1st defendant had realized that he has received
more than 75% of the consideration pursuant to the Ex.P.19 to
P.21 and hence executed sale deeds dated 2.6.1997 and also
7.6.1997 against him in favour of suit property. Whereas this
court while considering additional Issue No.2, 3, 7 to 9
answered that plaintiff failed to establish payment of
Rs.11,44,000/- towards advance sale consideration to the 1st
defendant herein. That apart, much prior to execution of these
sale deeds in favour of plaintiff, 1st defendant has already
34 O.S.No. 2413/1994 C/w 7489/1999
executed sale deed dated 31.5.1991 and 1.6.1991 in respect of
suit property. Though 1st defendant initially filed a memo
admitting the written statement after lapse of almost after a
decade came up with a memo that he has not at all admitted
the written statement of defendants No.2 and 3. It is not in
dispute that defendants 1 to 3 were all represented by common
advocate. Hence, the subsequent developments probably taken
place with intervention of plaintiff. In view of existence of sale
deeds much prior to the execution of suit documents and also
sale deeds of the year 1997, 1st defendant was not at all having
any such right, title over the suit property to execute the sale
deed. In the absence of such right, any such document
executed only becomes a vague document or a created
document just to suit the convenience of parties. Accordingly,
I have answered these three issues in the affirmative.
36. Additional Issue No.12 in O.S.No.2413/1994 : Since
plaintiff failed to establish that he has paid an advance sale
amount of Rs.11,44,000/- to the 1st defendant herein under
Ex.P.21 and also as per my earlier discussion, the suit of the
plaintiff is barred by the provisions of Order 2 Rule 2 C.P.C and
also the secondary evidence lead by plaintiff is not
substantiated by producing accountable document. All these
circumstances disentitles the plaintiff from the relief claimed.
When plaintiff failed to establish that he has paid sale advance
35 O.S.No. 2413/1994 C/w 7489/1999
amount, question of defendants refunding the same with
interest does not arises. Except the oral testimony of P.W.2
and Xerox copy of suit documents, there is absolutely no
cogent material is placed to show that plaintiff was actually
having capacity to make such payment and he has actually
paid the said amount. Accordingly, I have answered this issue
also in the negative.
37. Additional Issue No.1 and 5 in O.S.No.2413/1994:
Neither office raised any objections with regard to court fee nor
any material produced by defendants herein with regard to
court fee paid by the plaintiff. Further as per Ex.P.21, the time
mentioned is 3 years from the date of Ex.P.21. Under such
circumstances, the suit is also well within limitation.
Accordingly, I have answered these two issues in the negative.
38. Issue No.1 in OS.No.2413/1994: The plaintiff except
asserting that the sale deed dated 31.5.1995 and 1.6.1991
executed by the 1st defendant in favour of 2nd and 3rd
defendants conveying the suit property are illegal, plaintiff
neither entered the witness box nor produced any materials in
support of his contention. On the other hand, plaintiff failed
to establish execution of sale agreement in his favour so also
mortgage deed and sale advance agreement as per Ex.P.19 to
P.21. Inspite of knowing the execution of these sale deeds by
36 O.S.No. 2413/1994 C/w 7489/1999
1st defendant, plaintiff not sought for such wider relief in
O.S.No. 4606/1993. In the absence of oral and documentary
evidence, there is no reason to disbelieve these documents of
defendants 2 and 3, which are admittedly registered
documents. Accordingly, I have answered this issue also in the
negative.
39. Issue No.2 in O.S.No.2413/1994 : It is not in dispute
that the plaintiff is in possession of the suit property and the
defendants 2 and 3 herein have already filed suit in
O.S.No.7489/1999 seeking relief of recovery of possession
from the plaintiff herein Since plaintiff failed to establish the
execution of suit documents Ex.P.19 to P.21, plaintiff's
possession over suit property cannot be considered as lawful.
Further plaintiff also failed to establish passing of any
consideration to the deceased 1st defendant in respect of suit
property either under Ex.P.19 or under Ex.P.20 and P.21. On
the other hand, plaintiff not at all approached the court with
clean hands. Accordingly, I also answered this issue in the
negative.
40. Issue No.3 in O.S.No. 2413/1994: It is the contention
of plaintiff that defendants 1 to 3 are attempting to dispossess
him from the suit property with the support of 4th defendant.
However, plaintiff not at all stated the date on which these
37 O.S.No. 2413/1994 C/w 7489/1999
defendants tried to interfere with this peaceful possession and
enjoyment of the suit property. On the other hand, the
document Ex.P.27 establishes that plaintiff himself given
requisition to the Commissioner, Bengaluru City Corporation
much prior to filing of the suit raising his objections to change
the katha and other revenue records pertaining to suit property
in favour of other persons. Except producing certain
electricity bills and telephone bills and also xerox copies of suit
documents, plaintiff not at all produced any materials to show
that he was troubled by defendants 1 to 3 herein. In the
absence of material with regard to interference, the contention
of plaintiff that defendants tried to interfere with his peaceful
possession and enjoyment of the suit property appears vague
and also doubtful. Accordingly, I have answered this issue in
the negative.
41. Issue No.4 in O.S.No. 2413/1994: in view of my
findings on Issue No.1 to 3 and also Additional Issue No.1 to
12, plaintiff is not entitled for any relief. Accordingly, I have
answered this issue also in negative.
42. Issue No.1,2 7 and 8 in O.S.No. 7489/1999: Since
plaintiff Venkatesh failed to establish that the sale deeds dated
31.5.1991 and 1.6.1991 executed by 1st defendant in favour of
plaintiffs in respect of suit property are illegal and also failed
38 O.S.No. 2413/1994 C/w 7489/1999
to establish that under Ex.P.19 to P.22, he has already paid a
sum of Rs.11,44,000/- to the 1st defendant herein, the
defendants who are holding registered sale deeds in respect of
suit property becomes the absolute owner of the suit property.
That apart, 1st plaintiff herein got marked as many as 5
documents in this case as per Ex.P.1 to P.5. Ex.P.2 and P.3
are the sale deeds pertaining to suit property executed in
favour of plaintiffs. Ex.P.4 is the katha extract pertaining to
suit property standing in the name of plaintiffs, Ex.P.5 is the
tax paid receipt for having paid the tax in respect of suit
property in pursuance of Ex.P.2 and P.3. These documents
remained unchallenged and that apart, the plaintiff in O.S.No.
2413/1994 already failed to establish the claim over the suit
property. Under such circumstances, plaintiffs by examining
1st plaintiff and also by producing various documents including
Ex.P.1 to P.5 have established their absolute ownership over
the suit property. Being absolute owner of the suit property
and also by virtue of their sale deeds, they are entitled for
possession of the suit property. Accordingly, I have answered
these four issues in the affirmative.
43. Issue No.3 and 9 in O.S.No.7489/1999: These issues
are considered together to avoid repetition of facts and
circumstances of this case. Since plaintiff in O.S.No.
2413/1994 failed to establish that he is in lawful possession of
39 O.S.No. 2413/1994 C/w 7489/1999
the suit schedule property and defendants in the said suit who
are plaintiffs herein tried to unlawfully interfere with his
possession, plaintiffs are entitled for mesne profits from the
defendant herein for his wrongful possession over the suit
property since from the date of sale deeds till realization.
However, an enquiry in this regard is necessary. Accordingly, I
have answered these issues are also in the affirmative.
44. Issue No.4 in O.S.No.7489/1999: The very claim of
defendant herein that he is having right title and possession
over the suit property by virtue of Ex.P.19 to P.21 and the sale
deed executed in favour of plaintiffs herein by their vendor is
not binding on him gives rise to a cause of action. When such
being the case, the contention of defendant that there is no
cause of action for the suit holds no water. Accordingly, I
answered this issue in the negative.
45. Issue No.5 in O.S.No.7489/1999: Though the
defendant herein raised contention that suit of the plaintiff is
barred by limitation from he has not placed any material in
this regard. It is also not in dispute that plaintiff got amended
the written statement at subsequent stage, which made
plaintiffs herein to file separate suit. Accordingly, I have
answered this issue in the negative.
40 O.S.No. 2413/1994 C/w 7489/1999
46. Issue No.6 in O.S.No. 7489/1999: As per office
calculation court fee paid by parties herein. Accordingly, this
issue is answered in affirmative.
47. Issue No. 5 in O.S.No. 2413/94 and Issue No.10 in
O.S.No.7489/99: In view of my findings on issues and
additional issues in both the suits, discussed supra, I proceed
to pass the following:-
ORDER
O.S.No. 2413/1994 filed by plaintiff is dismissed with costs.
O.S.No.7489/99 filed by plaintiffs is decreed with costs.
Defendant D.Venkatesh is directed to hand over possession of suit property to the plaintiffs herein within two months from today.
With regard to mesne profits, there shall be a separate enquiry.
Draw decree accordingly.
41 O.S.No. 2413/1994 C/w 7489/1999Original of this judgment shall be kept in O.S.No. 2413/1994 and copy of the same is kept in O.S.No.7489/1999 {Dictated to the Judgment-Writer transcribed by her, corrected and then pronounced by me in open court this the 20th day of June 2016.} (M.LATHA KUMARI) XI ADDL.CITY CIVIL JUDGE BANGALORE CITY.
ANNEXUERE List of witnesses examined for plaintiff in O.S.No.2413/1994 :-
PW.1 Sri. D.Venkatesh P.W.2 Sri. D.Rajagopal P.W.3: Sri. M.L.Jawaharlal P.W.4: R.Vittal
List of documents exhibited for plaintiff in O.S.No.2413/1994 :-
Ex.P.1 GPA
Ex.P.2: Certified copy of sale deed
Ex.P.3: Certified copy of sale deed dated
7.6.1997
42 O.S.No. 2413/1994 C/w 7489/1999
Ex.P.4: Cancellation of GPA dated 16.12.1996
Ex.P.5: ...do....
Ex.P.6: Memo dated 11.11.1997
Ex.P.6(a): Certified copy of Ex.P.6
Ex.P.7: Affidavit dated 11.11.1997
P.7(a): Certified copy of Ex.P.7
Ex.P.8: Telephone bill and receipt
Ex.P.9: Vasada Dridikarana Pathra
Ex.P.10: Certified copy of order sheet in O.S. No.
4606/1993
Ex.P.11: Certified copy of interim application in
O.S. No.4606/1993
Ex.P.12: Letter written by plaintiff dated
23.7.1993 to Commissioner, BBMP Ex.P.13: Endorsement issued by Corporation dated 5.6.1993 Ex.P.14: Endorsement dated 20.8.1993 Ex.P.15: Letter dated 28.6.19893 Ex.P.16: Endorsement dated2.9.1993 Ex.P.17: Certified copy of sale deed dated 31.5.1991 Ex.P.18: Certified copy of sale deed dated 1.6.1991 Ex.P.19:: Copy of Mortgage deed dated 29.10.1989 Ex.P.20: Copy of sale advance agreement Ex.P.21: Copy of sale agreement Ex.P.22 to P.24: Income tax returns Ex.P.25: Certified copy of copy application 43 O.S.No. 2413/1994 C/w 7489/1999 P.25(a): Endorsement Ex.P.26 and P.27: Endorsement issued by Bangalore City Corporation Ex.P.28 to P.37: Telephone bills Ex.P.38 to P.97: KEB Bills. Ex.P.98 to P.129 Receipts List of witnesses examined for defendant/s in O.S.No.2413/1994:
D.W.1 Sri. S.Nagaraj List of documents exhibited for defendant in O.S.No.2413/1994 :-
Ex.D.1: Agreement of sale Ex.D.2: Certified copy of written statement O.S. No.4606 of 1993 Ex.D.3: Certified copy of copy application in O.S. No.4606 of 1993 Ex.D.4: Certified copy of cheque No.389700 Ex.D.5: Certified copy of endorsement of Syndicate Bank;
Ex.D.6: Certified copy of lease deed under R.T.I.
Ex.D.7: Certified copy of extract of register No.1
of O.S. No.4606 of 1993
Ex.D.8: GPA
Ex.D.9 to 13: Tax paid receipts
44 O.S.No. 2413/1994 C/w 7489/1999
List of witnesses examined for plaintiff in O.S. No. 7489/1999 :-
PW.1 Sri.S.Nagaraj List of documents exhibited for plaintiff in O.S. No. 7489/1999 :-
Ex.P.1 GPA executed by B.K.Subbaiah in favour of S.Muniraju Ex.P.2: Original sale deed executed in the name plaintiff by S.Muniraju dated 31.5.1991 Ex.P.3: Another sale deed executed in the name of S.V.Pathy by S.Muniraju dated 1.6.1991 Ex.P.4: Katha certificate issued in the name of plaintiff and plaintiff No.2 Ex.P.5: Tax paid receipt dated 5.4.2002 XI ADDL.CITY CIVIL JUDGE, BANGALORE CITY 45 O.S.No. 2413/1994 C/w 7489/1999