Bangalore District Court
Sri.Abdul Wajid vs Bruhat Bengaluru Mahanagara on 9 June, 2016
IN THE COURT OF THE IV ADDL.CITY CIVIL & SESSIONS
JUDGE AT MAYO HALL UNIT, BENGALURU. (CCH-21)
Dated: This, the 9th day of June 2016.
Present: Sri.Bannikatti Hanumanthappa.R.
B.A.,LL.B(Spl)
IV Addl.CC & SJ, Mayohall Unit,
Bengaluru.
O.S. No.26194/2007
Plaintiffs: 1. Sri.Abdul Wajid, S/o.Late.Mohd.
Hashim, aged about 54 yrs,
2. Mrs.Firdaus Begaum,
W/o.Mr.Abdul Wajid, aged
about 42 yrs,
Both are R/at.No.15, 5th Main,
Ganganagar Extension,
Bengaluru-32.
(By Sri.V.A.Mohan Rangam, Advocate)
V/S
Defendants: 1. Bruhat Bengaluru Mahanagara
Palike, by its Commissioner,
N.R.Square, Bengaluru.
2. Mrs.Poornima Sonti,
W/o.Late.Mr.V.R.Sonti, Major,
R/at.No.2, Classic Mansion,
18th Main, 6th Cross, H.A.L. II
Stage, Kodihalli, Bengaluru-8.
2 O.S. No.26194/2007
3. Mrs.Rani Sonti,
D/o.Late.Mr.V.R.Sonti, Hindu
by Religion, aged about 26 yrs,
R/at.No.2, Classic Mansion, 18th
Main, 6th Cross, H.A.L. II Stage,
Kodihalli, Bengaluru-8.
4. The Sub-Registrar, Gandhinagar,
Bengaluru.
(By Sri.M.G.Vishwanath, Advocate for deft.No.1)
(By Sri.Abhay.S.Patil, Advocate for defts.No.2 & 3)
(Deft.No.4-Exparte)
Date of institution of the suit 03.07.2007
Nature of the suit (Suit for Pro-note, Suit for Declaration &
Suit for Declaration and Possession, Permanent Injunction
Suit for Injunction, etc.)
Date of commencement of recording 22.02.2012
of the evidence
Date on which the Judgment was 09.06.2016
pronounced
Total duration Year/s Month/s Day/s
08 11 06
JUDGMENT
Present suit has been filed under Order VII, Rule 1 of CPC for seeking the reliefs of declaration to declare that the plaintiffs are entitled for a change in the Mutation Register of the 1st defendant in the jurisdictional ward as khathadars of the suit schedule property, and to declare that the defendants 2 and 3 have no right, title, possession and any sort of interest in the suit 3 O.S. No.26194/2007 schedule property, and also to declare that the alleged family settlement set up by the defendants 2 and 3 is a forged document and null and void abinitio and the relief of permanent injunction to restrain the defendants 2 and 3 from interfering with peaceful possession and enjoyment of the suit schedule property of the plaintiffs, and also to restrain the defendant No.4-the Sub-Registrar of Gandhinagar, Bengaluru, from registering any document in respect of the suit schedule property brought by any transactions through the defendants 2 and 3 and for costs.
2. The description of the suit schedule property as shown in the schedule to the plaint is as follows:-
Formerly vacant land bearing Municipal No.5 (earlier Site No.5, formed in Survey No.22, Y.R.Subramanya Private Layout, Gangenahalli) and now, the same Municipal No.5 consisting of vacant land with three existing shops and a workshop in Ward No.98, Ganganagar, Bellary Road, Bengaluru and bounded on:
East by: Private Property;
West by: Service Road;
North by: Property bearing Site No.4; and on
South by: Road.
4 O.S. No.26194/2007
3. Case of the plaintiffs, in brief, is as below:-
Late.Sri.V.R.Sonti, S/o.Dr.S.Kamesham, a permanent resident of Calcutta was working in a very premier institution he was the owner of the schedule property which he got by virtue of partition among his brothers and sisters executed a power of attorney in favour of Sri.Mohammed Shafi, permanent resident of Gangenahalli, Bengaluru, in respect of the schedule property. During the life time of Sri.V.R.Sonti, sale consideration was fully received by him when he was still serving in Premier Institution in Calcutta. In the meanwhile, two miscreants and land-grabbers by their names Mr.Abdul Aziz and another encroached upon the schedule property and Sri.Mohammed Shafi/PA holder of Late.Sri.Sonti had to file O.S. No.10910/1986 in this court. The above two encroachers were evicted as a result of which, the PA holder did file a memo for dismissal of O.S. No.10910/1986 and the so-called encroachers did not challenge any of the orders of the DA and also the dismissal of the suit, which confirms that the schedule property is the absolute property of Sri.V.R.Sonti. The plaintiffs are the husband and wife respectively and they were 5 O.S. No.26194/2007 carrying on some Engineering Enterprises in the schedule property. The absolute sale deed was registered on 02.01.2003 in the office of the 4th defendant and the same was executed by the PH holder. The stamp papers were purchased based on the agreement of sale and the plaintiffs were legally obliged to pay huge amount of stamp duty and registration charges. The 4th defendant is made as a party in view of fraudulent deeds and transactions are apparent in the conduct of the defendants 2 and 3 and as such, with abundant caution, a request has been made to the 4th defendant and now the plaintiffs have sought for relief that the 4th defendant be restrained from registering the schedule property to any person or persons. The defendants 2 and 3 are in the habit of creating fraudulent documents not only to dispossess the plaintiffs from the schedule property but also to create third party rights. The defendants 2 and
3 are making efforts to effect a fraudulent document to defeat the title, possession and enjoyment of the schedule property that has been in possession of the plaintiffs for the last 20 years through the power of attorney holder who ultimately executed the sale deed in favour of the plaintiffs. The schedule property was purchased by 6 O.S. No.26194/2007 the plaintiffs in good faith and over-whelming documentary evidence in support of possession, title, right and all other incidental to the ownership of the schedule property are beyond any doubt and suspicion. The defendants 2 and 3 have taken advantage of the death of Late.Sri.V.R.Sonti who would not have dream in his life and had he been alive Sri.V.R.Sonti would have reprimanded and condemned the illegal and fraudulent acts of his daughter and grand-daughter/defendants 2 and 3 respectively. The defendants 2 and 3 have mislead the defendant No.1 who has a reviewing authority failed to take into consideration the documents produced by the plaintiffs of one other statutory body namely BDA and there have been no application of mind on the part of the 1st defendant while refusing to transfer khata and the defendant No.1 ought to have issued notices to the defendants 2 and 3 that would have been transparent and fair procedure in deciding as to the declaration of khata in favour of the plaintiffs. Further documents or proof as to the bonafides and in good faith that have transpired between the plaintiffs and the PA holder of Late.Sri.V.R.Sonti on the one hand and also the correspondence that have transpired 7 O.S. No.26194/2007 subsequent to the disposal of O.S. No.10910/1986 in its proper context. Hence, this suit arose.
4. After issuance of the suit summons and duly served upon them, the defendant No.4 has not chosen to appear before this court, it has been placed exparte; the defendant No.1 appeared through its advocate; but has not filed any WS; and the defendants No.2 and 3 appeared through their advocate Sri.Abhay.S.Patil; thereafter both the defendants have filed their joint WS.
5. Case of the defendants No.2 and 3, in brief, is as below:-
Defendants No.2 & 3 contended in their WS that suit of the plaintiff is not maintainable either on law or on facts and it is fundamentally defective. The defendant No.2 contended that the court fee paid by the plaintiff is not correct and according to KSV Act (A) 24 b, the court fee is to be paid half of the market value of the registration of the property. Further it is contended that the 2nd defendant is the absolute owner of the schedule property having acquired by virtue of succession; i.e., through her late husband Sri.V.R.Sonti who died intestate on 03.01.1992 at Madras; this defendant being the legal heir. Late.Sri.V.R.Sonti had neither 8 O.S. No.26194/2007 executed any GPA nor agreement of sale in favour of anybody during his lifetime much less in the name of person claimed by the plaintiff and he had a good job and a house in Chennai, he never needed anybody's help to maintain his family property, especially schedule property. Further contended that after the death of Sri.V.R.Sonti, the khata was transferred in the name of 2nd defendant's name after production of all the relevant and necessary documents, and regarding this the defendant's children have also given no objection certificate. This defendant further contended that the schedule property was never under the control of the BDA authority and site No.28 of Sy.No.22 of Bellary Road is mentioned in the name of one of the owners Sri.Abdul Kareem and the Corporation of the city of Bengaluru in their letter dated 27.11.1974 issued a notice under Section 145 of the Corporation Act, 1949 to Abdul Kareem and by another notice dated 27.11.1974 to one more site owner in Sy.No.22 of the same layout standing in the name of M/s.Indian Engineriing Works Corporation; this would show that the site in R.S.No.22 were under the control of the Corporation of Bengaluru City and not under 9 O.S. No.26194/2007 BDA. Further contended that Sri.V.R.Sonti never used to sign in long form, he had studied in England and the signature of settlement deed clearly goes to prove his signature and the document purported to have been notarized by the plaintiff are in a different form and this raises suspicion as to the genuineness of the documents produced by the plaintiff. Further it is contended that BDA has given letter stating that, it has not acquired the land in R.S.No.22 for any purpose and the document; i.e., the receipt issued by BESCL produced by the plaintiff is of site No.6 of the layout and does not relate to site No.5 and it is in the name of relative of the plaintiff and not in the name of plaintiff. Further this defendant contended that the agreement of sale deed dated 04.10.1986 is against the plaintiff's case and for that reason only he has not produced the same before this court and a receipt of Rs.1,12,107/- given by the M/s.Ascu India Ltd., given to V.R.Sonti and it contains the signature of Sri.Prabhakaran who is supposed to have written a letter to plaintiff's brother regarding site No.5 and 2nd defendant on 29.01.2007 has entered into agreement of sale in respect of the suit property with Mohammed Illiyas and 10 O.S. No.26194/2007 S.K.Ghouse Mohaddin @ Aslam, for Rs.1,75,00,000/- and the advocate for Abdul Wajid and another have handed over the Xerox copy of the same agreement of sale deed dated-10-1986 in the office of advocate Dr.K.Sreenivasan, on 16.02.2006. Thus, the defendants No.2 & 3 pray to dismiss the suit of the plaintiffs with heavy costs.
6. From the above said pleadings, following issues have been framed:-
1. Whether the plaintiffs are entitled for change of khata in their name in respect of the suit schedule property?
2. Whether the plaintiffs prove their title over the suit schedule property?
3. Whether the plaintiff proves that the family settlement deed of defendants is null and void?
4. Whether the plaintiff proves that they were in lawful possession of the suit schedule property on the date of the suit?
5. Whether the suit is maintainable?
6. Whether the court fee paid is proper?
7 What decree or order?11 O.S. No.26194/2007
7. On behalf of the plaintiffs, affidavit evidence of 1st plaintiff has been filed and he has been examined as P.W.1 and Exs.P.1 to P.51 documents have been got marked.
8. On the other hand, on behalf of the defendants also, affidavit evidence of 3rd defendant, has been filed and she has been examined as DW.1 and Exs.D.1 to D.12 documents have been got marked.
9. Ex.P.1 is the certified copy of order passed in WP No.3133/2007, Ex.P.2 is the general power of attorney executed by V.R.Sonti in favour of his brother Mohamed Shaife, Ex.P.3 is the notary certificate, Ex.P.4 is the general power of attorney executed by V.R.Sonti in favour of M.D.Shaiffe, Exs.P.5 to P.7 are the letters of V.R.Sonti to Shaife, Ex.P.8 is the letter of Ascu to LPE Rego, Ex.P.9 is the letter of V.R.Sonti to Shaife and others, Ex.P.10 and P.11 are the encumbrance certificates, Exs.P.12 & P.13 are the receipts, Ex.P.14 is the khata certificate, Ex.P.15 is the sale deed executed by V.R.Sonti through his general power of attorney holder Mohamed Shafi and Mohamed Shafi in favour of himself and the 2nd plaintiff, Exs.P.16 and P.17 are the affidavit 12 O.S. No.26194/2007 executed by V.R.Sonti, Ex.P.18 is the letter of V.R.Sonti to Shafi, Ex.P.19 is the receipt issued by V.R.Sonti to Shafi, Ex.P.20 is the letter of BDA to V.R.Sonti, Ex.P.21 is the copy of complaint to the police, Ex.P.22 is the certified copy of the order passed on IA.5 in O.S. No.10910/1986, Ex.P.23 is the receipt issued by BDA, Ex.P.24 to 32 are the tax receipts, Ex.P.33 is the bank challan, Ex.P.34 is the self-assessment of property tax scheme 2001-02- 2003 acknowledgement receipt, Ex.P.35 is the demand notice dated 30.01.2004 issued by BBMP, Exs.P.36 to P.39 are the renovation certificates issued by BWSSB, Exs.P.40 & P.41 are the payment receipts issued by BWSSB, Ex.P.42 is the letter dated 30.11.1987 issued by KEB for issue of service certificate of RR No.C4LG 21722, Ex.P.43 are the electricity bills along with receipts, Ex.P.44 are the telephone bills along with receipts, Ex.P.45 is the certificate issued by Commercial Tax Office, Ex.P.46 is the registration certificate of establishment issued by Government of Karnataka Department of Labour dated 09.08.1990, Ex.P.47 is the labour renewal receipt for the year 2004 to 2013, Ex.P.48 is the professional tax certificate issued by Government of Karnataka, 13 O.S. No.26194/2007 Commercial Tax Department, Ex.P.49 and P.50 are the composite tax registration certificates issued by the Assistant Commissioner of Tax Department, and Ex.P.51 is the affidavit of 2nd defendant.
10. Ex.D.1 is the copy of agreement for sale, Ex.D.2 is the death certificate, Ex.D.3 is the uttara patra, Ex.D.4 is the tax paid receipt, Ex.D.5 is the khatha certificate, Ex.D.6 is the notice, Ex.D.7 is the tax paid receipt, Ex.D.8 is the khatha extract, Ex.D.9 is the endorsement, Ex.D.10 is the EC, Ex.D.11 is the passport, and Ex.D.12 is the certified copy of settlement deed dated 05.08.1991.
11. Heard, the learned advocates for the plaintiffs and defendants 2 and 3 and perused the records. Learned advocates for the plaintiffs and defendants 2 and 3 have submitted their written arguments separately and the same have been considered.
12. After considering the evidence on record, my findings on the above issues are as follows:-
Issue No.1: In the Negative, Issue No.2: In the Negative, Issue.No.3: In the Negative, Issue No.4: In the Affirmative, 14 O.S. No.26194/2007 Issue No.5: Partly in the Affirmative, Issue No.6: In the Negative, Issue No.7: As per final order, for the following:-
REASONS.
13. ISSUE No.1 to 4: All these issues are interlinked each other; hence, for avoiding repetition I have taken up all these issues for discussion at one stretch. In order to prove the case of plaintiffs, 1st plaintiff has got examined as a P.W.1 by reiterating the plaint averments in his chief-examination and stated that the suit property was originally owned and possessed by one V.R.Sonti a resident of Calcutta by virtue of partition deed taken place among his family members. He entered into an agreement of sale on 04.10.1986 with plaintiffs through his GPA holder by namely Sri.Mohammed Shafi; thereafter the above said suit schedule property as per sale agreement came into possession of his brother Mohammed Shafi. P.W.1 further stated that V.R.Sonti executed a power of attorney in favour of his brother Mohammed Shafi on 07.08.1986 at Calcutta, it is placed before this court at the time of 15 O.S. No.26194/2007 institution of this suit and also as a proof for notarization a notary certificate issued by one B.K.Banergy, Notary, dated 08.09.1987 also produced in this case and several communications relating to the suit property were taken place in between them and other related documents are also produced in this case. P.W.1 further stated that Mohammed Shafi received a letters written by late.V.R.Sonti and related postal covers, in total 6 documents in numbers also placed before this court in this suit. P.W.1 further stated that he has produced the two affidavits duly signed by Sri.V.R.Sonti at Calcutta and Bengaluru respectively. Both the affidavit speak about agreement of sale entered in between V.R.Sonti with his brother Mohammed Shafi. The late V.R.Sonti being a husband of 2nd defendant and father of the 3rd defendant stated in his affidavit that the physical possession of the suit schedule property was delivered to his brother Mohammed Shafi on the date of agreement of sale dated 04.10.1986; thereafter, his brother Mohammed Shafi came in absolute possession and enjoyment of the same. The power of attorney and affidavits of the Sonti discloses that the suit schedule property had changed to the 16 O.S. No.26194/2007 hands of Sri.Mohammed Shafi in the year 1986 itself and affidavit of Sonti dated 07.08.1988 clearly discloses that he has sold the suit schedule property in favour of his brother Mohammed Shafi for total consideration of Rs.2,90,000/- only in a full and final settlement and later on he passed away in the year 1992. The entire above said sale consideration was paid by him to V.R.Sonti by DD and cash and the receipts for having received the said amount are disclosing that they are clearly establishing that beyond reasonable doubt the suit schedule property was sold for above said sale consideration by V.R.Sonti in favour of his brother Mohammed Shafi in the year 1986 by virtue of agreement of sale. The two acknowledgement receipts dated 06.11.1989 of the amount received also produced in this case; necessary receipts and counter foils issued and duly endorsed by the bank in the name of late.V.R.Sonti also produced in this suit. P.W.1 further stated that in order to prove the plaintiffs' possession and enjoyment over the suit schedule property affidavits were executed and the entire sale consideration also received from his brother Mohammed Shafi. Later on he transferred the said property in his favour by virtue of 17 O.S. No.26194/2007 the sale deed. P.W.1 further stated that there was a notification in newspaper dated 27.07.1987 wherein shown that the BDA demanded Rs.31,850/- only as a layout charges, which were borne by the brother of 1st plaintiff, who is a GPA holder of V.R.Sonti, it shows that the possession and enjoyment of the plaintiff over the suit schedule property. It is also stated that KEB has issued a service certificate in respect of installation of electrical meter bearing RR No.C4LG21722 in favour of the Mohammed Shafi. It also shows his possession over the suit schedule property on 30.11.1987. P.W.1 further stated that Mohammed Shafi on the strength of GPA executed a sale deed about the suit schedule property on 02.01.2003 in his favour and also in favour of his wife. The said document also placed before the court. The registration charges of the sale deed amounting Rs.74,400/- is also paid by obtaining the payment order issued by J & K Bank. Thus, the above said document and encumbrance certificate also produced in this case. The stamp papers amounting to Rs.4,64,000/- were purchased in the name of plaintiff and his wife through the Bengaluru Advocates Co-operative Society. In view of the above 18 O.S. No.26194/2007 said events in respect of the possession and enjoyment of the suit schedule property have been chronologically brought out and proved that the brother of 1st plaintiff; i.e., a GPA holder of V.R.Sonti, by namely Mohammed Shafi was in possession of the schedule property from 04.10.1986 to 02.01.2003 till executing the absolute sale deed in favour of P.W.1 and his wife. P.W.1 further stated that in view of the above said sale transaction defendant No.2 and 3 have no any manner of claim or possession over the suit schedule property. They have lost their moral right and physical possession over the same and no locus standee to contest the suit regarding right, title, interest or possession of himself and his wife. It is also stated that he had filed a affidavit in O.S. No.10916/86 dated 12.02.1987 by stating that V.R.Sonti delivered the possession on 04.10.1986 to his brother Mohammed Shafi; accordingly, he came in absolute possession of the suit schedule property; thereafter his brother Mohammed Shafi who is a GPA holder of V.R.Sonti executed a sale deed in respect of suit schedule property in favour of plaintiff on 02.01.2003 for sale consideration of Rs.2,90,000/- for the same value of the said property, which is 19 O.S. No.26194/2007 purchased by his brother Mohammed Shafi as a GPA holder and purchaser of the suit schedule property from V.R.Sonti. Thus, from the year 1986 till 2003 brother of 1st plaintiff was in possession and enjoyment of the suit schedule property till executing a sale deed in favour of the plaintiffs in the year 2003. Thereafter, the 1st plaintiff and his wife are in possession of the suit schedule property. On the other hand, P.W.1 opposed that the 2nd and 3rd defendants rights for which claiming the ownership and possession over the suit schedule property on the basis of the alleged so called settlement deed dated 05.08.91 executed by late.V.R.Sonti in favour of 3rd defendant Rani Sonti; there was no need or necessity to 1st defendant to change the khatha in favour of 2nd defendant, who is wife of V.R.Sonti. The 1st defendant ought to have taken cognizance of the settlement deed and lawfully got to be transferred the khatha, which was stood in the name of late.V.R.Sonti in favour of the 3rd defendant Rani Sonti, d/o.V.R.Sonti, not in favour of the 2nd defendant. The above said facts depict that there was no existence of any settlement deed at the time of 1st defendant - BBMP effected the transfer of khatha in 20 O.S. No.26194/2007 favour of the 2nd defendant. The cumulative actions of the all three defendants are collusive in nature, in view of the same, the plaintiffs are entitled for change of khatha of the suit schedule property in their names as the settlement deed of the defendant is created document. P.W.1 it is also stated that the alleged settlement deed produced by the 2nd and 3rd defendants does not bear the respective signatures of the parties at page No.1 and 2 and the said document does not depict about the suit schedule property, which have came to the share of beneficiaries under the alleged settlement deed, which is a suspicious document. The 1st defendant has not produced the relevant records on the basis of which, the khatha was effected in favour of 2nd defendant and more over, the 1st defendant remained absent in this suit by remaining a silent though the suit summons duly served. In view of the same, settlement deed is appearing as a forged and fabricated document only for the purpose of this case just to mislead the court; 2nd and 3rd defendants have colluded and set-up the alleged settlement deed and also manipulated with the 1st defendant to effect the change of khatha in favour of the 2nd defendant; i.e, Smt.Poornima Sonti is 21 O.S. No.26194/2007 arbitrary and illegal and against the due process of law. P.W.1 it is stated in his chief-examination that the agreement of sale dated 27.01.2007, which is alleged as held between 2nd and 3rd defendants with one Sri.Mohammed Illiyaz and Sri.S.K.Ghouse @ Aslam; the same is placed before the court in the recitals of the sale agreement mentioned that the suit schedule property was transferred in the name of 2nd defendant; but the recitals do not maintain the mode of transfer of the suit schedule property from 3rd defendant to 2nd defendant in their favour and there is a absolute vacuum as to the mode of conveyance in accordance with law and provisions of the Transfer of Property Act. As such, the said transaction is also suspicious. The necessary documents in this regard also placed before the court in this suit. It is further stated that 2nd and 3rd defendants are colluded with 1st defendant and changed the khatha of the suit schedule property in the BBMP records. The 1st defendant not made the proper enquiry in this regard; without application of his mind changed the khatha of the suit schedule property in the name of 2nd defendant, who is not at all connected to the same. P.W.1 totally stated that the agreement of sale entered 22 O.S. No.26194/2007 into by and between the 2nd and 3rd defendants with one Sri. Mohammed Illiyaz and Aslam and also the alleged settlement deed placed before the court by the 2nd and 3rd defendants are contrary to the facts and circumstances of the case, in view of the same plaintiffs are being a legitimate owners in possession and enjoyment of suit schedule property as a purchaser of the same from the GPA holder of V.R.Sonti and they are entitled for getting change of khatha in their names. From the year 1986 Mohammed Shafi was in possession of the suit schedule property on the strength of agreement of sales, affidavits, GPA executed by late.V.R.Sonti in his favour and later on he conveyed the suit schedule property by virtue of registered sale deed in favour of plaintiffs in the year 2003. Accordingly, he produced the number of documents and they are in absolute owner and uninterrupted possession of the suit schedule property with effect from 1986 till today and it is also stated that even otherwise by the doctrine of adverse possession also they are in firm and absolute possession of the suit schedule property. Accordingly, his wife and himself carrying the business and let out two other portions of the suit 23 O.S. No.26194/2007 schedule property on rent to one Mukthiar Ahmed and another to Sri.Lalu Bai. The related lease agreements executed in favour of them are also placed before the court in this suit to prove their absolute possession and enjoyment over the suit schedule property and the 2nd and 3rd defendants have no manner of right and title to interfere in it and they have been paying the taxes to BBMP from 1986 till 2008, necessary tax paid receipts are also produced in this case. Thus, P.W.1 prays to decree the suit in favour of the plaintiff. P.W.1 it is further stated that both the defendants 2 and 3 have played a fraud on Smt.Jyothimani by executing a sale deed in favour of Abdul Khareem and S.K.Ghouse Mohiddin @ Aslam in respect of property bearing No.18 in Sy.No.22, Gangenahalli, Bengaluru. The above said property was in possession of Smt.Jyothimani, who had filed a suit against 3rd defendant; i.e., Smt.Rani Sonti and purchasers Sri.Abdul Khareem and S.K.Ghouse Mohiddin, which is still pending before the court in O.S. No.2878/05. The said fraudulent conduct of the both defendants also are disclosing that who are capable to create, fabricated and manipulated documents as required to them for their 24 O.S. No.26194/2007 convenience. Totally P.W.1 prays to decree the suit. Ex.P.1 is a true copy of the order passed in Writ Petition No.3133/2007 dated 07.04.2007, which was filed by the plaintiffs of the present suit against the Commissioner of BBMP and Deputy Commissioner of Bengaluru East Taluk and also others, in which it was challenged by the plaintiffs of this suit regarding the khatha changed in the name of 2nd defendant, who is a daughter of the V.R.Sonti. Then the Hon'ble High Court of Karnataka in the above said WP ordered to approach to civil court to get declare the relief of title over the suit schedule property. Ex.P.2 is a general power of attorney executed by V.R.Sonti in favour of one Mohammed Sharief on 7.8.1988 in respect of the suit schedule property. Ex.P.3 is a notary certificate submitted by the B.K.Banergy, in which it is mentioned that he is being a Notary appointed by the Central Government. Ex.P.5 to 7 are the letter written by V.R.Sonti to Mohammed Shafi, who is a GPA holder, written about suit schedule property, regarding request for extension of sale period by further 3 months and relating to connected other matters of the said property. Ex.P.8 is a letter written by the K.P.Prabhakaran for ASCU India Ltd., to 25 O.S. No.26194/2007 the Mr.L.P.E.Rego, 105, Infantry Road, Bengaluru, and also Ex.P.9 is a letter dated 24.03.1988 written by V.R.Sonti to his power of attorney holder and others by stating that he has executed a power of attorney in favour of Mr.Jacob John, 37, Devis Road, St.Thomas Town, Bengaluru, for payment of balance sale consideration to him and to obtain a sale deed. Ex.P.16 and 17 are the affidavits of V.R.Sonti in which stated that site No.5 situated at in forming of part of Sy.No.22, Ballari Road, Gangenahalli, Bengaluru, as the GPA holder Mohammed Shafi is having a interest and in spite of the execution of the GPA he undertaken to execute a registered sale deed in respect of suit schedule property in favour of purchasers or his nominees whenever he so desires without any limit. Ex.P.20 is a document, a letter written by Executive Engineer, Bengaluru, to V.R.Sonti relating to payment of layout charges in respect of site No.5 formed in Sy.No.22, Y.R.Subramanya Private Layout, Gangenahalli, Bengaluru, about the said property requested for remitting Rs.31,850/- towards the layout charges. Ex.P.21 is a another letter of the same Officer written to P.S.I., R.T.Nagar Police Station, with request to provide a police protection 26 O.S. No.26194/2007 regarding demolition of unauthorized hut existing in site No.5 of Sy.No.22, Gangenahalli, Bellary Road. Ex.P.23 is a challan of Rs.31,850/- submitted by V.R.Sonti to BDA as a letter given by the Executive Engineer of BDA as per Ex.P.20. Ex.P.15 is a sale deed executed by GPA holder of V.R.Sonti by namely Mohammed Shafi in favour of plaintiffs of this suit in respect of suit schedule property on 02.01.2003 for a sale consideration of Rs.2,90,000/- and possession was handed over to him. Other documents are relating to the payment of tax and also Ex.P.13 is a receipt taken by the Office of Bengaluru Advocates Co-operative Society for purchase of the stamp at the rate of Rs.74,400/- to execute the above said sale deed Ex.P.15. Ex.P.10 is a encumbrance certificate relating to the above said site No.5 in Sy.No.22 measuring 90 x 50 for the period of 20.04.2000 to 31.03.2004 in which mentioned that the above said property is sold by GPA holder of V.R.Sonti by name Mohammed Shafi in favour of Abdul Wajid and Firdaus Begaum; i.e., plaintiff No.1 & 2 of this suit. Plaintiff has produced the other documents Ex.P.25, P.26 & P.28 to P.32 Tax paid Receipts relating to property situated in Bellary Street, with 27 O.S. No.26194/2007 property No.49-14 about the tax payment made by the plaintiff to the BDA and Ex.P.27 is a another tax paid receipt, which is disclosing that the same is paid to BBMP by V.R.Sonti on 31.08.1999 in respect of site No.5, Gangenahalli, Sy.No.22; in all the above said tax paid receipts mentioned that the tax is paid relating to property No.14 (Old No.49), Bellary Road, Ganganagara, Bengaluru, by stating that the above said all tax paid receipts are relating to the suit schedule property. Ex.P.37 and 38, P.39 are a contractor license registration certificate for the period 1.4.98 to 31.3.2001 issued by the Registration Officer, and Executive Engineer, BWSSB, North, Malleshwaram, Bengaluru, in favour of the plaintiffs and Ex.P.43 is having a number of electricity bills and telephone bills paid by the plaintiffs in respect of suit schedule property to the concerned authorities for showing that they are in possession and enjoyment of the suit schedule property from the date of purchase and Ex.P.49 and P.50 are the composition tax registration certificate issued to both plaintiffs stating that their business is running at No.5, Bellary Road, Gangenahalli, R.T.Nagar, Bengaluru. The said document also 28 O.S. No.26194/2007 disclosing that as on 05.05.2008 the both the plaintiffs are in possession and enjoyment of the suit schedule property. But, regarding all the documents the defendants are disputing as the said respective agreement of sale and sale deed executed by V.R.Sonti and his power of attorney holder by namely Mohammed Shafi and other tax paid receipts are a forged documents. No such any alienation is made by the V.R.Sonti in anybody name and suit property is belonging to them.
14. On the other hand, D.W.1 who is a defendant No.3 stated in her affidavit evidence for herself and on behalf of defendant No.2 and she stated that the suit filed by the plaintiff against her and her mother/defendant No.2, is not filed on the basis of real facts and also the documents produced with the plaint are created and not genuine and the court is liable to dismiss the suit as there is no cause of action. It is also stated that the court fee paid by the plaintiff is not correct; according to K.S.V Act (A) 24 b, the court fee is to be paid at half of the market value of the registration of the property. It is also stated that the defendant Nos.2 & 3, wife and daughter of V.R.Sonti, are the absolute owner of the properties 29 O.S. No.26194/2007 bearing site No.5, and unused lands in Sy.No.22, Ward No.98 situated at Ganganagar, Bengaluru-32 under settlement deed dated 18.07.1991 and V.R.Sonti died intestate on 03.01.1992 at Madras, the defendants being his legal heirs and after his death, the suit schedule properties khata was transferred in the name of his wife 2nd defendant. The husband of the 2nd defendant had never executed any GPA, and agreement of sale in favour of anybody during her lifetime much less in the name of persons claimed by the plaintiff and she has never faced any economic crises in her life and had a good job and also had a house in Chennai and she never needed anybody's help to maintain her family property, especially suit schedule property. D.W.1 it is stated in her chief-examination that her father used to sign in short form and he had studied in England and the signature on the settlement deed of her late father clearly goes to prove the signature of late.V.R.Sonti. It is stated that the suit for possession and declaration filed by Ms.Jyotimani in O.S. No.6397/2008 in respect of site No.18 of the same Sy.No. was dismissed on 26.11.2013. It is also stated that the notarized documents claimed and produced by the plaintiffs were never 30 O.S. No.26194/2007 signed by Smt.R.Lalithamma as she never signed documents without her seal and the signature of notary on the family settlement deed submitted by the defendants, it would clearly show the signature of notary and the manner in which the notary signed. Further D.W.1 stated that BDA has given letter stating that, it has not acquired the land in R.S.No.22 for any purpose and the document receipt RRNo.C4LG21722 dated 25.11.1987 produced by plaintiff relates to site No.6 of the layout and it does not relate to the site No.5 and it is in the name of one Mohammed Shafi, who is a relative of the plaintiff and not in the name of plaintiff, which has been verified from BESCOM. It is stated that a public person had filed a complaint in respect of site No.5 to the R.T.Nagar Police and the police officials during the course of the enquiry into the complaint obtained documents from defendant No.2 and the plaintiffs and also from 1st defendant/BBMP and in those documents produced to the police by the BBMP, the agreement of sale dated 04.10.1996 is also one of the documents. The same document was relied upon by the plaintiff before the BBMP, but the plaintiff has produced one Xerox copy of agreement of sale 31 O.S. No.26194/2007 before the court. The certified copy of the same was obtained by the defendants on an application under RTI Act to BBMP Office, J.C.Nagar Range, in which this site is located, this document is totally different from the Xerox copy produced by the plaintiff before this court and the same is available in the court file and the D.D. No. in the agreement of sale supplied by the BBMP to police reads 253209 of I.O.B, dated 14.10.1986 (The date of agreement is 06.10.1980 eight days before the date of issue of the DD). Further D.W.1 stated that the 2nd defendant on 29.01.2007 has entered into agreement of sale in respect of suit property with Mohammed Illiyas and S.K.Ghouse Mohaddin @ Aslam for Rs.1,75,00,000/-. It is also stated that the advocate for Abdul Wajid and another handed over the Xerox copy of agreement of sale dated 04.10.1986 in the office of advocate Dr.K.Sreenivasan, on 16.02.2006. On the basis of the chief-examination of D.W.1 prays for dismissal of the suit of plaintiffs. In support of the case of defendants, they have produced the Ex.D.1 a agreement of sale executed on 14th day of October, 1986 by V.R.Sonti, aged about 59 years, and son of the late.Sonti Kamesham residing at 7A, ELGIN Road, Calcutta, in 32 O.S. No.26194/2007 favour of M.D.Shafi, S/o.Mohammed Hussain, R/at.4A, 5th Main, Gangenahalli, Bengaluru, in respect of vacant site bearing No.5, forming part of Sy. No.22, Bellary Road, Gangenahalli, Bengaluru, which is bounded by North: Site No.4, South by: 30 feet Wide Road, East by: Site No.17 and 18, West by: Open Place and Bellary Road, which is measuring East-West: 90 feet more or less North-South: 50 feet more or less and the said land is measuring 500 sq. yards for a sale consideration of Rs.2,50,000/- with condition that the said balance sale consideration of Rs.2,50,000/- shall be paid by the purchaser to the vendors on the date of sale deed in the presence of the Registrar at the time of executing the sale deed. Ex.D.2 is a death certificate of V.R.Sonti who died on 3rd January 1992. Ex.D.3 is a uttara patra/change of khatha effected is issued by the Assistant Revenue Officer of Hebbal Range Office, BBMP, in which it is shown that site No.5 formed in Sy.No.22 of Ganganagara, Ward No.98, is transferred in the name of Poornima Sonti; i.e., defendant No.2 on 22.07.2004. Ex.D.5 is a khatha certificate issued about the above said property on 11.11.2008 by stating that the property is identified with PID 33 O.S. No.26194/2007 No.98-44-5 is mutated in the name of Poornima Sonti; i.e., 2nd defendant. Ex.D.4 is a tax paid receipts dated 7.7.2004 relating to the suit property. Ex.D.6 is a letter written by Assistant Revenue Officer, Hebbal Range, BBMP, to the Poornima Sonti, to file any objection if she is having anything to the above said assessment of total tax fixed by their office for Rs.1,05,525/- per month with effect from 01.04.2004 based on the built up area and its usage as per the self-assessment scheme and may be preferred in writing to the Commissioner within 30 days of receipt of special notice. Ex.D.10 is a encumbrance certificate of the suit schedule property for the period of 1.4.2005 to till 29.01.2007 in which mentioned that the said property Municipal No.5 out of Sy.No.22 of Gangenahalli, Bengaluru, in Ward No.98, measuring East-West: 90 feet, North-South: 50 feet in all measuring 4500 sq. ft., is sold out by the Rani Sonti for herself and GPA holder for Smt.Poornima Sonti in favour of Mohammed Illiyaz and S.K.Ghouse Mohiddin @ Aslam for sale consideration 1,75,00,000/- on 29.01.2007. Ex.D.11 is a passport standing in the name of V.R.Sonti. Ex.D.7 is a tax paid receipt of the year 2007 relating to the suit schedule 34 O.S. No.26194/2007 property. Ex.D.8 is a khatha extract of the said property, and another document is a settlement deed executed on 18th July 1991 by Sri.V.R.Sonti in favour of his daughter Kum.Rani Sonti, in respect of the suit schedule property is produced in this case. Ex.D.9 is a endorsement given by the Land Acquisition Officer, BBMP, stating that 10 acre 15 guntas out of Sy.No.22 of Hebbal, Kasaba Hobli, Gangenahalli, Bengaluru Uttara Taluk is acquired on 21.07.1960 by making a preliminary notification and later on by making a final notification on 16.7.1964 and acquired the said lands for the purpose of forming layout, and Ex.D.12 is also produced, which is disclosing that Sri.V.R.Sonti executed a settlement deed in favour of Rani Sonti, Saroja Sonti, and Kamal Sonti on 05.08.1991 and got partitioned the portion of property bearing Sy.No.22, which was partitioned by virtue of the party of first, who has got share of site No.5 and 18 in Sy.No.22 of Gangenahalli, Bellary Road, Bengaluru, the remaining extent of Sy.No.22 remained unpartitioned. According to partition taken place as per settlement deed, in site No.5 and 18 and remaining portion of Sy.No.22 by virtue of partition deed, the party of this 35 O.S. No.26194/2007 first part is left the same and whereas in the good frame of mind to settle the above said property among his children namely 2nd to 4th party in the presence of his wife and witness divided as below mentioned:-
1. That the party of the second part is entitled for the site No.5 and 18 and half the portion in the remaining extent of Sy.No.22, Gangenahalli, Bellary Road, Bengaluru.
2. That the party of the third part and fourth part shall be jointly entitled to half portion in Sy.No.22, which remained un partitioned land in addition to which a self acquired house property at Madras is given.
3. Whereas the party of the second, third and fourth part by virtue of the said settlement shall get the absolute ownership of the same and shall enjoy the same peacefully and get khata in their names.
15. Upon perusal of the cross-examination of P.W.1 dated 09.11.2012 stated that all the documents produced by him in this suit are handed over through his brother and he has scrutinized the said documents at the time of purchasing the suit schedule property and he knows the V.R.Sonti. Further he answered that he can 36 O.S. No.26194/2007 identify the Ex.P.9, which is executed a power of attorney by V.R.Sonti in favour of Jacob John and the P.W.1 has admitted in his cross-examination the contents of Ex.P.9 dated 24.3.1988 are true and correct and he denied that the power of attorney executed in favour of his brother Mohammed Shafi is a forged and created one and all other suggestions made regarding the other documents also directly denied by the P.W.1. P.W.1 it is also answered that he had submitted a application to the BBMP for seeking change of khatha in respect of the suit schedule property. In the confrontation of the Ex.D.1 shown by the defendants' advocate he identified it as a one of the agreement of sale and identified the all contents; but denied the signature of V.R.Sonti appearing on Ex.P.2 and also signature of the one Notary by name R.Lalithamma. It is also denied that the signature of Notary appearing on Ex.P.3 and 4 differs from one to another. P.W.1 answered that V.R.Sonti has put his signature in a small and larger style on Ex.P.4 and also admitted that a letters Ex.P.5 to 7 sent to the V.R.Sonti and P.W.1 further answered that why the V.R.Sonti used to sign in two different small and larger style to the said questions; he answered 37 O.S. No.26194/2007 that he has not made enquiry to his brother regarding it and he denied that all the Ex.P.5 to 16 are a forged and created documents.
It is also admitted in his cross-examination that the one Jyothimani is residing behind of the plaintiff's side and she had filed a O.S.No.6397/08. He denied that Ex.P.15 is created by him and he has not paid any amount. Further he admitted that Ex.P.16 is of the dated 29.12.1986 and it came into existence before executing the power of attorney. He admits the all contents of Ex.P.17; but denied that R.Lalithamma and signature of V.R.Sonti are not signed to it and it is also admitted the contents of Ex.P.19. In the further cross-examination dated 17.12.2015, P.W.1 admitted that his brother Mohammed Shafi is still alive and he has no any impediment to examine him on his behalf in this suit and it is also admitted that it is mentioned in recitals of Ex.P.15 Sale Deed that the open site/suit property is purchased on 02.01.2003. It is denied that after the purchase of the suit schedule property as per their convenient to the plaintiffs they have forged and prepared all the plaintiff documents. Total defence of the defendants is that the plaintiffs have prepared the false documents in order to claim the 38 O.S. No.26194/2007 ownership and possession over the suit schedule property; but, the 2nd and 3rd defendants have legally got mutated the suit schedule property in the office of the 1st defendant in the name of 2nd defendant after the death of V.R.Sonti and accordingly paying the tax from the date of change of khatha till today. Thus, the 2nd and 3rd defendants are claiming the title of ownership and possession over the suit schedule property.
16. Upon perusal of the cross-examination of the D.W.1 dated 24.03.2016 after beginning the four lines she has admitted that on 05.08.1991 the settlement deed came into force and wherein mentioned that her father was residing in Calcutta and it is also admitted that no signatures put to each papers of the settlement deed. Further she answered that she does not know what is the meaning of schedule of the suit schedule property, and she does not know what are the schedule mentioned in the settlement deed. It is admitted that the above said settlement deed is not duly registered in the Registrar Office. The said document is notarized before the notary. Further she answered that she does not know the said settlement deed shown to her is a Xerox colour copy. 39 O.S. No.26194/2007
17. It is also admitted by the D.W.1 that in page No.7 and para No.5 of the plaint, it is stated that the plaintiffs are in possession of the suit schedule property; but it is also written in the WS of the defendants that the above said possession of the plaintiff is a encroached possession of the plaintiff. D.W.1 admitted that it is written in her WS that the plaintiffs have taken a connection of electricity supply and doing a business in the suit schedule property. It is further answered that she well-known about the all the sale deeds taken place in respect of suit schedule property; but she has not challenged the said sale deeds in the City Civil Court of Bengaluru. It is also answered that she cannot say that particularly on which day notice and summons of the present suit served upon her on which date, month and year. It is further admitted that the affidavit sworn to file a interim application is being in the name of her mother or defendant No.2; but, she has signed to the said affidavit, which is confronted to D.W.1 and got marked as a Ex.P.51 on behalf of the plaintiffs' advocate. Further D.W.1 answered that she has gone through the all the contents of her mother affidavit shown to her including the para No.8 of the 40 O.S. No.26194/2007 affidavit; but she does not know what are the total contention of the said affidavit and she denied that the contents of their WS are completely contrary to the affidavit of her mother and accordingly further she answered that she does not know the contents of Para No.10 of affidavit accompanied with IA and what are the contents of it. Further D.W.1 answered that she does not know that what details are written in the affidavit of suit filed by her father in O.S. No.10910/86. It is further she answered that in the year 1987 her father was residing in Calcutta and she has not perused the Ex.P.3 Notary Certificate. It is also admitted that her father V.R.Sonti never used to sign any documents in longer style of signature. D.W.1 admitted that the signatures appearing on Ex.P.5 and 6 are belonging to her father. It is answered that she is having a suspect about the signatures, which will be called as a signature of her father, which are upon Ex.P.7 and 9. Later on D.W.1 admitted that the said signatures, which are upon Ex.P.7 and 9 are belonging to her father. D.W.1 further answered that she does not know the signature appearing upon Ex.P.16 and P.19; the said signatures are belonging to whom. It is denied that Ex.P.18 is a written by the 41 O.S. No.26194/2007 Personal Secretary by name one Ganesh of her father V.R.Sonti; but she answered that does not know the contents of it. It is further D.W.1 admitted that defendants have not challenged in the Civil Court for declaring a cancellation of the Ex.P.15 and she does not know the para No.6 of the said sale deed and what the contents are written in it. It is also she answered that she does not know whether they have not paid the property tax to the BBMP from that year till today and she does not know that what documents were submitted to the BBMP to got change the property in her name and also she does not know that whether the said documents were preserved in her possession or not.
She denied that after executing above said Sale Deed Ex.P.15, she has executed the agreement of sale in respect of suit schedule property in favour of one Mohammed Illiyaz. It is further she answered that she does not know if the sale consideration of Rs.1,75,00,000/- received by her from him. It is admitted that in the para No.9 of their WS stated about the sale agreement of the suit schedule property and she denied that the defendants are not having any rights and title over the suit schedule property and they 42 O.S. No.26194/2007 have filed a false affidavit evidence and WS against the plaintiff in ordered to disprove the title and possession of the plaintiff over the suit schedule property, which is handed over to them through the original owner of the suit schedule property by her father V.R.Sonti.
18. It is pertinent to note in this case that on the basis of the above said admissions given by the P.W.1 in the cross-examination of the defendant advocate, the counsel for the defendant relied on a Supreme Court Judgment AIR 2014 Page No.937, in which it is held that suit for declaration of title-honours to prove the same is on the plaintiff who claims it, he cannot succeed on the weakness of the defendants case. But, the plaintiffs have failed to prove the sale deed Ex.P.15 was properly executed by the GPA holder of V.R.Sonti; i.e., brother of 1st plaintiff by namely Mohammed Shafi in favour of the plaintiffs on 02.01.2003 for sale consideration of Rs.2,90,000/-. It was a burden upon the plaintiffs to prove that there was being in existence of valid agreement of sale dated 04.10.1986; but the said document is not produced with the plaint. Only the affidavits of V.R.Sonti Ex.P.16 and 17 are produced. 43 O.S. No.26194/2007 Without the necessary document of agreement of sale dated 04.10.1986 so called agreement of sale does not hold any validity and water to help the plaintiffs to show that the suit schedule property was handed over to the GPA holder of V.R.Sonti by way of agreement of sale and affidavits. It is also submitted in the written argument of the defendant advocate that defendants 2 and 3 had filed an application for production of the documents by the plaintiff, though the court was ordered to produce the same, only the plaintiffs have produced the photo copy. In the evidence of P.W.1 plaintiffs claimed that the original agreement of sale had been with the V.R.Sonti. It was came to the notice of defendants that the agreement of sale was produced by the plaintiff before the BBMP authorities under the RTI while seeking the khatha in favour of the defendants. The agreement of sale dated 04.10.1986 is marked as a Ex.D.1, which is signed by the Mohammed Shafi; i.e., brother of 1st plaintiff also on which the signature of the V.R.Sonti is in long form. The D.W.1 has produced the passport of V.R.Sonti which is Ex.D.11 containing the authentic signature of Mr.V.R.Sonti. The defendants have successfully proved the 44 O.S. No.26194/2007 correct signature of V.R.Sonti and it is also proved that the signature of V.R.Sonti appearing on Ex.D.1 which is in long form is not a signature of V.R.Sonti. In this regard the counsel for the defendant relied upon Section 73 of the Indian Evidence Act-1972 and a citation 2010 (5) KLJ Page No.9. Further argued that the document Ex.P.2 GPA executed by V.R.Sonti in favour of Mohammed Shafi, who is a brother of plaintiff is a created document, which cannot be relied. The documents Ex.P.2 and P.17 are claiming that these were executed on 07.08.1988. Both the documents are having signature of V.R.Sonti in long form. The said signatures are also can be compared, which will disclose that the signature of V.R.Sonti is forged by the plaintiffs and the brother of plaintiff Mohammed Shafi, which can be seen in multiple documents produced by plaintiff by stating that the said documents are signed by V.R.Sonti. It is also argued that a short form signature appearing on Ex.P.5, P.6, P.7 dated 24.12.1986 is a prior to the signing of the GPA, short form and long form are appearing in Ex.P.4, long form of signature is appearing on Ex.P.2, P.17 and Ex.D.1. The defendant advocate has relied on the other 45 O.S. No.26194/2007 citations of AIR 1963 Gujarath 226 (V-50, C-53(1)) and also relied on a Section 7 of the Transfer Property Acts, which reads as below mentioned:-
"Every person competent to contract and entitled to transferable property or authorized to dispose of transferable property not his own, is competent to transfer such property either wholly or in part and either absolutely or conditionally, in the circumstances, to the extent and in the manner allowed and prescribed by any law for the time being in force."
With the help of the above said provision of law, the counsel for the defendant drawn my attention towards the further cross- examination of P.W.1 answered in connection to it. P.W.1 admitted that the person would sign in the same manner in all the documents and he studied upto SSLC. It is also answered that the plaintiff himself admits that the signature of any persons will be the same at the times. According to plaintiff, Ex.P.9 is a letter written by V.R.Sonti from Calcutta and the letter bears the plaintiff name also, which is reached to his brother Mr.Mohammed Shafi. Further Ex.P.2 is a document executed on 7.8.1988 after the letter received 46 O.S. No.26194/2007 by the Mohammed Shafi and P.W.1, which bears the long signature and which is not the signature of Sonti. Thus, in total the counsel for the defendant argued that all the documents of the plaintiffs are a forged documents, which are prepared for claiming ownership and possession over the suit schedule property. I agree that the all the citations relied upon by the counsel for the defendant regarding the point of suspicion about the creating of the documents by the plaintiff are aptly applicable to the present case in hand. Because, it is well known to all of us that when the person purchases the property under the valid sale consideration he would not go to wait for longer period to get change the khatha of the property in his name. It is pertinent to note in this case, according to the case of plaintiffs, earlier the V.R.Sonti sold the property in favour of the brother of the plaintiff Mohammed Shafi in the year 1986 and later on the said Mohammed Shafi sold the property in favour of the plaintiffs on 02.01.03 as per Ex.P.15. But, from the year 2003 till the date of filing the suit he never made a efforts to get change the khatha of the suit property in the name of plaintiffs. It is case of the plaintiffs that they had submitted a applications to change their 47 O.S. No.26194/2007 names in the khatha of the suit schedule property to the 1st defendant; but he did not changed the khatha. No such any order of the 1st defendant or related documents are produced in this case. I agree that a number of tax paid receipts and a documents like registration certificate of tax department Ex.P.49 and P.50 and also other license issued by the BWSSB are disclosing that apparently the plaintiffs are in possession of the suit schedule property. It is further, I agree that in the plaint, plaintiffs have claimed the adverse possession over the suit property against the defendant. It is a crystal and clear that when the person go to claim the adverse possession against the owner of the any property first he has to admit the ownership and later on he has to prove that his possession is in the suit schedule property as stipulated in the provision of law for the period of 12 years knowingly to the owner of the property without any interruption. In this case, the plaintiff has disputed the ownership of the defendant and claiming a title over the suit schedule property by denying the title of plaintiff. Therefore, the above said provision of law a adverse possession, which is claimed by the plaintiff does not attract to the case of 48 O.S. No.26194/2007 plaintiff. It is necessary to discuss that even in the cross- examination of the defendant also a number of admissions given by the D.W.1 in detail that the plaintiffs are in possession of the suit schedule property being in possession of the same by doing a business as averred in the plaint and affidavit evidence, few admissions were given about the settlement deed regarding that the parties to the deed are not properly signed to the said document etc. However, only for the above said stray admissions of the D.W.1 it cannot be said that the plaintiffs have succeeded to prove the title over the suit schedule property. Through the documents of Ex.D.2 Death Certificate of V.R.Sonti and Ex.D.3 Uttara Patra issued by the BBMP in favour of the 2nd defendant by changing the khatha of the suit schedule property in the name of defendant No.2 on 27.04.2004 and a tax paid receipts Ex.D.4, Khatha Certificate dated 11.11.2008 of suit schedule property Ex.D.5, which is standing in the name of 2nd defendant and Ex.D.6, D.7, Ex.D.8 Khatha Extract of suit schedule property dated 6.11.08, which is also standing in the name of 2nd defendant. Though the said documents and other documents Ex.P.9 to 12 are clearly disclosing that as per the 49 O.S. No.26194/2007 settlement deed, the suit schedule property is came to the defendant No.2 and 3, after the death of V.R.Sonti the suit schedule property is duly transferred in the name of 2nd defendant, who is a mother of 3rd defendant. It is further pertinent to note that the plaintiff neither challenged the said documents before the appellate authority of the BBMP nor challenged the same in any court of law in order to prove the same the said documents are forged; except the only defence taken in this suit, it is further I would like to say that the plaintiffs have made a efforts to disprove the said documents of defendants and tried to prove the title over the suit schedule property. But, ultimately not succeeded for the same, about which it is discussed in length in the above said paras. But, the plaintiffs have succeeded to prove the possession over the suit schedule property as pleaded in the plaint and affidavit evidence through the tax paid receipts and a registration certificate issued by the Commercial Department and Contract License issued by the BWSSB, which is supported with the admission of D.W.1 also given in the cross-examination to the counsel for the plaintiffs that which is admitted the plaintiffs are being in possession of the suit 50 O.S. No.26194/2007 schedule property by doing a business. For all the above discussed reasons, I came to conclusion that the plaintiffs have failed to prove the issue No.1 to 3 and succeeded to prove the issue No.4 that the plaintiffs are being in lawful possession of the suit schedule property from the year 2003 till the date of filing of the suit. Hence, I would like to answer issue No.1 to 3 against the plaintiffs as a Negative and issue No.4 as a Affirmative.
19. ISSUE No.5: That the burden of proving this issue lies upon the defendants for which they are contended that they have filed a application under Order VII Rule 11 (a) of CPC by stating that the sale deed executed through the general power of attorney holder is not maintainable. The case of the plaintiffs starts on Ex.D.1 Agreement of Sale; but not produced the same, which creates doubt regarding the execution of agreement of sale in respect of suit schedule property in the year 1986 in favour of the Mohammed Shafi by the V.R.Sonti. The cause of action arisen for filing the suit by the plaintiffs is based on above said document of agreement of sale of the year 1986 and above said sale deed of 2003, there is no link between the both documents to clarify the 51 O.S. No.26194/2007 cause of action arisen for the plaintiffs to file this suit against the defendants. The plaintiffs have filed this suit against the defendants with a specific plea that he is a owner and possessor of the suit schedule property on the basis of the agreement of sale executed by V.R.Sonti in favour of 1st plaintiff's brother Mohammed Shafi and later on the Mohammed Shafi has executed a registered sale deed in favour of plaintiffs in the year 2003 for the sale consideration of Rs.2,90,000/-. Even in this regard the EC obtained by the plaintiff and produced in this case also shows that the above said transaction. Therefore, it is his case that he is having a title and possession over the suit schedule property, only his claim is that the cancellation of the documents are settlement deed of the defendants to be declared as a null and void and for making a direction to the BBMP to change the khatha of plaintiffs to the suit schedule property and also for declaring that the already khatha changed in the name of defendants to be declared as a null and void. No where claimed the declaration of title over the suit schedule property on the basis of the above said registered sale deed by disputing the title and possession of the defendants over 52 O.S. No.26194/2007 the suit schedule property. It is therefore, I would like to say that it was a mandatory duty of the plaintiffs after the execution of the registered sale deed they ought to have get mutate the suit schedule property in their names by got effecting the fruit of sale deed; then only it was chance to be called that the sale deed of the year 2003 executed in favour of plaintiffs by the Mohammed Shafi is acted upon. But, the same is not taken place in this case. Therefore, it is crystal and clear that as already above discussed, the plaintiffs have not succeeded to prove their case through the oral evidence of P.W.1 and documentary evidence regarding they have acquired a absolute ownership on the basis of the registered sale deed of 2003 and the previous documents executed by V.R.Sonti in favour of his power of attorney holder Mohammed Shafi, who is a brother of 1st plaintiff like GPA, agreement of sale and affidavits etc., executed in respect of suit schedule property, which is well discussed in the above said paras. On the other hand, on this point also the defendants have placed the number of documents and oral evidence of D.W.1 and drawn the above said citations to the notice of this court and ultimately proved that the suit of the plaintiffs filed for 53 O.S. No.26194/2007 declaration of khatha of D2 changed to the suit schedule property by the 1st defendant and the document of settlement deed taken place in between the family members of defendants are to be declared as null and void without seeking the declaration of title over the suit schedule property on the strength of sale deed, which is strongly disputed by the defendants by alleging that the all the documents, which are called as executed by the V.R.Sonti in favour of Mohammed Shafi and the subsequent documents of sale deed of the year 2003 executed by Mohammed Shafi in favour of plaintiff are a forged and created documents. When the above said defence is taken by the defendants against the plaintiff there was required to the plaintiff to seek the relief of declaration of title over the suit schedule property, which has not been done. Therefore, the suit filed by the plaintiffs against the defendants for other declaratory reliefs is not maintainable. It is pertinent to note that the D.W.1 has admitted the possession of the plaintiffs over the suit schedule property in her cross-examination by stating that, presently they are being in possession by doing the business. Therefore, it can be said that the suit of the plaintiffs sought for 54 O.S. No.26194/2007 permanent injunction to get continue his settled possession in which from the longer period running the business is maintainable; but the suit filed for declaratory relief is not maintainable. In view of the above said observations, I would like to answer issue No.5 in favour of the defendants as a Partly Affirmative.
20. ISSUE No.6: That the burden of proving this issue also lies upon the defendant. Initially he disputed regarding the court fee paid by the plaintiffs is not proper. But, upon perusal of the valuation slip of the plaintiffs disclosing that the plaintiffs have paid the proper court fee under Section 24 (d) and 26 (e) of the Karnataka Court Fee and Suit Valuation Act, for the reliefs sought in the plaint that to declare the plaintiffs are entitled for change of their names in the mutation register of 1st defendant and D2, D3 have no title, possession over the suit schedule property and also settlement deed of D2, D3 is to be declared as forged and null and void document and further reliefs of permanent injunction against defendant No.2 & 3 for restraining them from interfering with the peaceful possession and enjoyment of suit schedule property of plaintiffs and a permanent injunction against defendant No.4 for 55 O.S. No.26194/2007 restraining from registering any document in respect of suit schedule property in favour of defendant No.2 and 3. For which the necessary court fee is paid by the plaintiff under the provision of Section 24 (d) and 26 (e); therefore, the defence taken by the defendants that the plaintiffs ought to have paid the court fee under Section 24 (b) of the Karnataka Court Fee and Suit Valuation Act does not hold water. Therefore, I would like to answer the issue No.6 against the defendants as a Negative.
21. ISSUE No.7: In view of the above said findings given to the above said issues No.1 to 6, wherein the findings are given that the plaintiffs are in a settled possession of the suit schedule property has admitted by D.W.1 and also it is held that the plaintiffs have not succeeded to prove their title over the suit schedule property, for the said reasons they are not entitled for any declaratory relief claimed in this suit. Therefore, ultimately I came to conclusion that the possession of the plaintiffs is to be protected by granting a permanent injunction against the defendants by holding that they are entitled for recover the possession of the suit schedule property under the due course of law. In view of the all 56 O.S. No.26194/2007 the above said observation and my findings discussed in detail, I would like to pass the following:-
ORDER.
Suit of the plaintiffs is partly decreed with costs.
Defendant No.4 and its representatives or its officials anybody claiming through the defendant No.4 are hereby permanently restrained from making registration of any documents in respect of suit schedule property brought by any transaction through the defendants 2 and 3; and defendants No.2 and 3 are also hereby restrained from interfering with the peaceful possession and enjoyment of the suit schedule property till handing over the same to the defendants if the same is claimed under due course of law.
Advocate fee is fixed at Rs.1,000/-.
Draw the decree accordingly.
(Dictated to the Stenographer on online computer, thereof corrected and then pronounced by me in the open court on this the 9th day of June, 2016).
(Bannikatti Hanumanthappa.R.) IV Addl.City Civil & Sessions Judge, Mayohall Unit, Bengaluru.57 O.S. No.26194/2007
ANNEXURES List of witness examined for the plaintiffs:
P.W.1 - Sri.Abdul Wajid.
List of documents exhibited for the plaintiffs:
Ex.P.1 - C/C of order passed in WP No.3133/07
Ex.P.2 - General power of attorney executed by
V.R.Sonti in favour of his brother
Mohamed Shaife
Ex.P.3 - Notary certificate
Ex.P.4 - General power of attorney executed by
V.R.Sonti in favour of M.D.Shaiffe
Ex.P.5 to 7 - Letters of V.R.Sonti to Shaife
Ex.P.8 - Letter of Ascu to LPE Rego
Ex.P.9 - Letter of V.R.Sonti to Shaife and others
Ex.P.10 & 11 - Encumbrance certificates
Ex.P.12 & 13 - Receipts
Ex.P.14 - Khata certificate
Ex.P.15 - Sale deed executed by V.R.Sonti
through his general power of attorney
holder Mohamed Shafi and Mohamed
Shafi in favour of himself and the 2nd
plaintiff
Ex.P.16 & 17 - Affidavit executed by V.R.Sonti
Ex.P.18 - Letter of V.R.Sonti to Shafi
Ex.P.19 - Receipt issued by V.R.Sonti to Shafi
Ex.P.20 - Letter of BDA to V.R.Sonti
Ex.P.21 - Copy of complaint to the police
Ex.P.22 - C/C of the order passed on IA.5 in O.S.
No.10910/1986
Ex.P.23 - Receipt issued by BDA
Ex.P.24 to 32 - Tax receipts
Ex.P.33 - Bank challan
Ex.P.34 - Self-assessment of property tax scheme
2001-02-2003 acknowledgement receipt
58 O.S. No.26194/2007
Ex.P.35 - Demand notice dated 30.01.2004 issued
by BBMP
Ex.P.36 to 39 - Renovation certificates issued by BWSSB Ex.P.40 & 41 - Payment receipts issued by BWSSB Ex.P.42 - Letter dated 30.11.1987 issued by KEB for issue of service certificate of RR No.C4LG 21722 Ex.P.43 - Electricity bills along with receipts Ex.P.44 - Telephone bills along with receipts Ex.P.45 - Certificate issued by Commercial Tax Office Ex.P.46 - Registration certificate of establishment issued by Government of Karnataka Department of Labour dated 09.08.1990 Ex.P.47 - Labour renewal receipt for the year 2004 to 2013 Ex.P.48 - Professional tax certificate issued by Government of Karnataka, Commercial Tax Department Ex.P.49 & 50 - Composite tax registration certificates issued by the Assistant Commissioner of Tax Department Ex.P.51 - Affidavit of 2nd defendant List of witness examined for the defendants:
D.W.1 - Smt.Rani Sonti.
List of documents exhibited for the defendants:
Ex.D.1 - Copy of agreement for sale
Ex.D.2 - Death Certificate
Ex.D.3 - Uttara patra
Ex.D.4 - Tax paid receipt
Ex.D.5 - Khatha certificate
Ex.D.6 - Notice
Ex.D.7 - Tax paid receipt
Ex.D.8 - Khatha extract
59 O.S. No.26194/2007
Ex.D.9 - Endorsement
Ex.D.10 - EC
Ex.D.11 - Passport
Ex.D.12 - C/C of settlement deed dated
05.08.1991
(Bannikatti Hanumanthappa.R.)
IV Addl.City Civil & Sessions Judge,
Mayohall Unit, Bengaluru.
60 O.S. No.26194/2007