Bangalore District Court
Anitha A.Naidu vs Mr.Devaraju on 6 January, 2022
KABC010165382006
[C.R.P. 67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for Judgment
in Suits(R.P.91)
IN THE COURT OF THE XIV ADDL. CITY CIVIL JUDGE AND
CONCURRENT CHARGE OF THE XXXVIII ADDL.CITY CIVIL
JUDGE, AT BENGALURU [CCH28 & CCH39]
Present: Sri. MALLIKARJUNA B.Com., LL.M.,
XIV Addl.City Civil Judge & C/C of XXXVIII Addl.City Civil Judge
Dated this the 6th Day of January, 2022
O.S.No.11295/2006
Plaintiff:
Anitha A.Naidu, W/o S.Amarnath,aged about
47 years, R/o Mo.32(27) 3rd ' A'
Main,Atmananda Colony, Sultanapalya,
R.T.Nagar Post, Bangalore -560 032
[by advocate Sri N.R.Naik)
V/s
Defendants:
1. Mr.Devaraju, aged about 45 years
2. Mr.Seshaiah, aged about 38 years,
3. Mrs.Gowramma, aged about 48 years,
All are sons and daughter of late Munigangappa
2
O.S.No.11295/2006
4. Krishnappa, S/o Seshaiah
All are r/o Laggere Village, Yeshwanthapur
Hobli, Bangalore North Tq.
5. Smt. D.Roopa,D/o Devaraj aged about 24
years
6. Sri D. Manjunth, S/o Devaraj, aged about 23
years
7. Sri D.Vijayakumar, S/o Devaraj, aged about
21 years
8. Sri D.Gopal, S/o Devaraj, aged about 20
years
9. S.Hemalatha, D/o Seshaiah aged about 23
years
10. Sri.S.Hemanthakumar, S/o Seshaiah, aged
about 20 years
11. Sri M.Rajanna, S/o not known
Defendants 5 to 11 are R/at No.4 1 st A
Cross,Bank Colony, Rajarajeshwarinagar,
Laggere, Bangalore58
12. Smt. R.Bharathi W/o Rajkumar, aged about
36 years, No.135/3, New Parushuram
Provision Stores, Rajeshwari Chitramandir
road, Rajeshwarinagar, Laggere, Bangalore
13. Sri K.R.Nagarajaiah, S/o late
K.M.Nagalingaiah, aged about 50 years, R/o
3
O.S.No.11295/2006
Kempasagar village, Magadi Taluk,
Ramanagar District
14. Sri Yateendraswamy V.S S/o late Shivanna
V.S. aged about 41 years, No.8132, PID
No.070W004625, Ward No.70, BBMP,
Laggere, Yeshwanthapur Hobli, Bangalore
North Taluk
15. Smt.Padmavathi, W/o Sri Venkataram, aged
about 43 years, R/o No.327, 1st Main road, 4th
'A' Cross, Preethi Nagar, Laggere, Bangalore
58
16. Sri M.Varadaraj, S/o Sri Mariyappa, aged
about 39 years, R/o No.601, 5th Main,
Vijayanandanagara, Nandini Extension,
Bangalore560 096
[D1 by advocate Sri N.S.R; D2,D3,D5 to D12
placed exparte; D4 dismissed; D13 and D14
remained absent;D15 by advocate Sri L.P.; D16 by
advocate Sri N.D.]
Date of Institution of the suit : 23/12/2006
declaration of
ownership, possession,
Nature of suit : permanent injunction
and consequential
relief
Date of commencement of
evidence : 08/02/2010
4
O.S.No.11295/2006
Date on which the judgment is
pronounced : 06/01/2022
Years Months Days
Duration taken for disposal :
15 00 13
JUDGMENT
This suit is filed by the Plaintiff against the Defendants for declaration of ownership, possession, permanent injunction and consequential relief of mandatory injunction.
2. The brief facts of the Plaintiff's case are as follows: That the Plaintiff is the absolute owner in possession and enjoyment of the site bearing Nos.8 & 9, House list No.244/2 and 255/2 measuring EastWest 60 feet, NorthSouth 35 feet situated at Laggere village, Yeshwanthapura Hobli, Bangalore North taluk. She purchased the above said property under registered Sale Deed dt.21.1.1991 from one Sri C.V.Muralidharan for a valuable consideration, the katha stands in her name. The 5 O.S.No.11295/2006 suit schedule property is protected with compound wall and building. The husband of the Plaintiff is a bank employee and he used to transfer from one place to another,now the Plaintiff is residing at Hyderabad. The Defendants and other family members are claiming to be the owners of land measuring 4 acres 33 guntas in Sy.No.132 of Laggere village. The layout has been formed by them through their General Power of Attorney holder Sri C.V.Muralidharan, who is vendor of the Plaintiff. The Defendants have lost their right in respect of the suit schedule property. The Defendants have filed a suit in O.S.No.7405/2002 for partition and got the interim order not to alienate the property. The said suit was dismissed on 9.8.2005. The legal notice was caused by the Defendants on 5.7.2006 by canceling the General Power of Attorney executed in favour of Sri C.V.Muralidharan. By virtue of cancellation of General Power of Attorney in favour of Sri C.V.Muralidharan, the Defendants started to 6 O.S.No.11295/2006 interfere with the suit schedule property without authority of law. The act of the Defendants is illegal which is required to be restrained by the order of the Court. During pendency of the suit, the Plaintiff got examined one witness as PW1 and got marked several documents. The above case was dismissed on 12.9.2011 for nonprosecution. Thereafter Miscellaneous Petition bearing No.841/2011 was filed and the same was allowed on 30.8.2014 and the suit was restored. During pendency of the said petition, the Defendant No.4 died, the Plaintiff is not aware of the date of his death. The Defendants 1 and 2 and their family members by suppressing the facts, sold the property in favour of R.Bharathi measuring EW 29½ feet and NS 34 feet in total 1003 Sq.feet under registered Sale Deed dt.4.12.2009. Again said R.Bharathi sold the property under registered Sale Deed dt.2.8.2012 in favour of one K.Nagarajaiah and in turn said K.Nagarajaiah sold the property under registered Sale 7 O.S.No.11295/2006 Deed dt.1.7.2013 in favour of Yatindraswamy V.S. Now said Yatindraswamy V.S. claiming right over the portion of the property without having right, title and interest over the same. The above Sale Deeds are created documents and not binding on the Plaintiff. Taking undue advantage of the Plaintiff residing outside the suit schedule property, Yatindraswamy V.S. put up illegal construction over the suit schedule property during pendency of this suit. The Defendant No.1 without any right and title, executed registered Sale Deed in favour of Defendant No.15 on 15.6.2006 in respect of remaining vacant portion of suit schedule 'A' property measuring E W 34 feet and NS 30 feet. The Sale Deeds executed between Defendants 12 to 14 are also challenged. These facts came to the knowledge of the Plaintiff only after Defendant No.16 appeared and filed the documents belong to Defendant No.15. During pendency of the suit, the Defendant No.16 started to interfere by virtue of 8 O.S.No.11295/2006 registered Sale Deed dt.29.8.2016 claiming right over the property, said property has been described as suit schedule 'C' property, which is part and parcel of suit schedule 'A' property, therefore present suit is filed against the Defendants praying for decreeing the suit in favour of the Plaintiff declaring that she is the absolute owner in possession of suit schedule 'A' property and put the Plaintiff in possession of suit schedule 'B' property, so also to declare that the Sale Deed dt.4.1.2009 executed by Defendants 1 and 2, the Sale Deed dt.2.8.2012, the Sale Deed dt.1.7.2013 and Sale Deed dt.29.8.2016 as null and void and also for mandatory injunction to remove the unauthorized construction over suit schedule 'C' property and for permanent injunction restraining the Defendants from interfering into the suit schedule property by way of dispossessing and demolishing the structure and also prayed for costs of the suit.
9
O.S.No.11295/2006
3. After service of summons, the Defendant No.1, 2, 15 and 16 appeared through their counsel and filed written statement. The Defendants 3, 5 to 12 and 13 remained absent and placed exparte. The case against Defendant No.4 is dismissed. The brief facts of the written statement of Defendant No.1 and 2 are as follows: That the suit filed by the Plaintiff is not maintainable either in law or on facts. The Plaintiff has filed this false suit by suppressing the material facts. One late Seshaiah had owned property in and around Bangalore, out of them Sy.No.132 is an agricultural land measuring 4 acre 32 guntas including 13 guntas of kharab situated at Laggere village, Yeshwanthpur hobli, Bangalore North taluk. He had three sons namely Narasimhaiah, Munigangappa and Krishnappa. They constituted joint family and having joint possession over the suit schedule property. Sri Narasimhaiah died leaving behind wife, sons and daughters as legal heirs. Sri 10 O.S.No.11295/2006 Munigangappa also died leaving behind Defendants 1,2 and 3 as legal heirs to succeed to his share in the suit schedule property. The Defendant No.4 is the only surviving son of late Seshaiah. Soonafter death of Sri Seshaiah, the revenue records of the joint family properties have been effected in the name of late Narasimaiah, who is eldest son and kartha of the joint family. He had taken signatures of the Defendants for processing the papers to get transfer the entries with respect to joint family properties including property in Sy.No.132 of Laggere village. The Defendants were under the impression that the signed papers were required to fulfill and complete the formalities required before the revenue department to get transfer of katha, and having reposed confidence on Narasimaiah, they put signature on the blank papers. Thereafter the Defendants came to know that land bearing Sy.No.132 of Laggere village was divided into sites and transacted to third parties by Sri 11 O.S.No.11295/2006 C.V.Muralidharan claiming to be the General Power of Attorney holder of late Narasimahaiah and others. After inquiry it is revealed that Sri C.V.Muralidharan had created and concocted General Power of Attorney dt.30.3.1990 as if late Narasimaiah and the Defendants executed it. The Defendants are not the only shareholders of the joint family, but there are other family members who are also having equal and joint share in the joint family properties including property bearing Sy.No. 132 of Laggere village. The Defendants or any other family members have neither made any transaction nor executed any kind of documents much less alleged General Power of Attorney dt.30.3.1990 in favour of Sri C.V.Muralidharan. The Defendants No.1 to 3 had filed O.S.No.7405/2002 for partition and separate possession of their share in the property bearing Sy.No.132 of Laggere village. During pendency of the said suit, the Defendants herein had agreed for partition of the 12 O.S.No.11295/2006 property out of Court settlement. Believing the version of Defendants therein, the Defendants herein have lost interest in the said suit. But due to nonprosecution of the case, the said suit came to be dismissed on 23.11.2005. Even thereafter the other family members have failed to settle the issue of partition. In the meantime the Defendants herein have canceled the alleged General Power of Attorney dt.30.3.1990 by issuing notice dt.5.7.2006. The Sri C.V.Muralidharan has given reply dt.13.7.2006 stating that the land was sold to different persons and sale consideration was given to Defendants, however he failed to produce the original of alleged General Power of Attorney dt.30.3.1990. Thereafter other family members have mutually and orally agreed for partition between them and consented for disposal of property in Sy.No.132 by way of sites. Based on the arrangement, the property was old to one Venkatram under registered Sale Deed, and possession of the said 13 O.S.No.11295/2006 land was delivered in his favour. He has been in physical possession and got constructed residential building and katha stands in his name and he is paying tax to the concerned authority, therefore the suit filed by the Plaintiff for permanent injunction is not maintainable. It is false to say that the Plaintiff is the absolute owner in possession of the suit schedule property, she has never been in possession of the suit schedule property nor constructed any building. There is no cause of action to file this suit, the alleged cause of action is false and vague one, the suit is not properly valued, the Court Fee paid is insufficient, the Plaintiff is not entitled to the relief sought in the plaint, hence prayed for dismissal of the suit.
4. The Defendant No.14 has filed written statement denying plaint averments and reiterated the written statement averments of Defendants 1 and 2, further contended that Plaintiff was never in possession and enjoyment of the suit schedule property. It is also 14 O.S.No.11295/2006 denied that she is absolute owner of the suit schedule property under registered Sale Deed. The alleged General Power of Attorney under which the Plaintiff is claiming to have acquired title has been canceled by the Defendants, therefore the Plaintiff's claim over the suit schedule property is unsustainable, prayed for dismissal of the suit with exemplary costs.
5. The Defendant No.15 also filed written statement denying plaint averments and reiterated the written statement averments of Defendant Nos.1 and 2, prayed for dismissal of the suit as not maintainable, further contended that the Defendants 15 and 16 are sisters and Defendant No.15 had purchased the above property from one Devaraju under registered Sale Deed dt.15.6.2006, after purchasing the property got changed the revenue records in her name, got constructed a house on the said site and also obtained electricity supply from BESCOM and water supply from BWSSB, the Plaintiff was 15 O.S.No.11295/2006 never in possession of the suit schedule property, the suit is hopelessly barred by law of limitation, hence prayed for dismissal of the suit.
6. The Defendant No.16 also filed written statement and reiterated the written statement averments of Defendants No.1 and 2, 14 and 15 and prayed for dismissal of the suit with exemplary costs.
7. During pendency of the suit, the Plaintiff got amended the plaint for which the Defendants have also filed written statement denying the amendment made by the Plaintiff.
8. On the basis of the above pleadings, my predecessorinoffice has overall framed four Issues and seven additional Issues as follows:
1. Whether the plaintiff proves that she is in possession and enjoyment of the plaint schedule property as on the date of the suit, as contended?
2. Whether the Plaintiff proves that the Defendants are interfering with the Plaintiff's possession and enjoyment over the plaint 16 O.S.No.11295/2006 schedule property illegally by demolishing the compound wall and building on the plaint schedule property, as alleged?
3. Whether the Plaintiff is entitled for the relief of permanent injunction as sought?
4. What order or decree?
Additional Issues framed on 2.6.2017:
1. Whether the Plaintiff proves that she is the absolute owner of the suit schedule property?
2. Whether the Plaintiff is entitled for relief of declaration?
Additional Issues framed on 14.2.2018:
3. Whether the Plaintiff proves that Sale Deed dt.4.12.2009 and 1.7.2013 are not binding on her and said Sale Deeds are null and void?
4. Whether the Plaintiff is entitled for mandatory injunction as sought? Additional Issues framed on 12.10.2018:
1. Whether the Defendant No.15 proves that herself and her brother Defendant No.16 are the bona fide purchasers of suit schedule property?
2. Whether Defendant No.15 proves that suit of the Plaintiff is barred by limitation?
3. Whether the Court Fee paid on the plaint is proper?17
O.S.No.11295/2006
9. To prove the case of the Plaintiff, two witnesses are examined as PW1 and PW2 and got marked Ex.P1 to P46 documents. On behalf of the Defendants, two witnesses are examined as DW1 and DW2 and got marked documents as Ex.D1 to D52. On perusal of the records, it appears that the document under Ex.D43 marked on behalf of the Defendants, has been wrongly marked twice due to oversight, therefore the document Ex.D43, tax paid receipt marked on 24.9.2021 shall be read as Ex.D43(a) for convenience sake and to avoid ambiguity.
10. Heard the arguments on both side. Perused the pleadings, evidence, documents and available material placed on record.
11. My findings on the above Issues are as follows: Issue No.1In the Negative Issue No.2In the Negative 18 O.S.No.11295/2006 Issue No.3In the Negative Additional Issues framed on 2.6.2017:
1.In the Negative
2.In the Negative Additional Issues framed on 14.2.2018:
3.In the Affirmative
4.In the Negative Additional Issues framed on 12.10.2018:
1.In the Affirmative
2.In the Negative
3.In the Affirmative Issue No.4As per Final Order, for the following reasons: REASONS Issue No.1, Additional Issue No.1 dt.2.6.2017 and Additional Issue No.1 dt.12.10.2018:
12. These three Issues are interrelated and connected to each other, hence in order to avoid repetition, I have taken them jointly for discussion.
13. It is the specific case of the plaintiff that she is the absolute owner in possession and enjoyment of the suit schedule property having acquired it under registered Sale Deed dt.21.1.1991 from one Sri 19 O.S.No.11295/2006 C.V.Muralidharan for a valuable consideration, the katha stands in her name, the suit schedule property is protected with compound wall and building, her husband is a bank employee and he used to transfer from one place to another,now they are is residing at Hyderabad, so she is unable to improve the suit schedule property, the Defendants and other family members are claiming to be the owners of land measuring 4 acres 33 guntas in Sy.No.132 of Laggere village. The layout has been formed by them through their General Power of Attorney holder Sri C.V.Muralidharan, who is vendor of the Plaintiff. They have filed a suit in O.S.No.7405/2002 for partition on 4.11.2002 and got the interim order not to alienate the property, the said suit was dismissed on 9.8.2005, subsequently the Defendants have canceled the General Power of Attorney by causing legal notice dt. 5.7.2006, in the reply to the said notice it is made clear that sites have been formed and sold to different persons who are in 20 O.S.No.11295/2006 possession of their respective sites, now the the Defendants started to interfere with peaceful possession and enjoyment of the Plaintiff over the suit schedule property. Subsequently the Plaintiff got amended the plaint and sought the relief of declaration of ownership, so also for declaration that the Sale Deeds dt.4.1.2009 executed by Defendants 1 and 2, the Sale Deed dt.2.8.2012, the Sale Deed dt.1.7.2013 and Sale Deed dt.29.8.2016 as null and void. These facts have been denied by the Defendants in their written statement contended that the Plaintiff has no locustandi to file this suit, neither she is absolute owner of the suit schedule property nor in possession and enjoyment of the suit schedule property. The contents of the Sale Deed relied on by the Plaintiff itself clearly discloses that the vendor of the Plaintiff had no right or interest over the suit schedule property on the date of Sale Deed, hence prayed for rejection of claim of the Plaintiff. Further Defendants 21 O.S.No.11295/2006 15 and 16 contended that they are the purchasers of the suit schedule property for valuable consideration under Sale Deeds and prayed for dismissal of the claim of the Plaintiff.
14. To prove the case of the Plaintiff, the P.A.holder and husband of Plaintiff has been examined as PW1. In his affidavit filed in the form of examinationin chief, he has reiterated plaint averments and in support of his oral contention, he has relied on Ex.P1 to P44. On perusal of entire evidence of PW1 and contention of the Plaintiff one point is clear that the Plaintiff claiming to have acquired the suit schedule property under registered Sale Deed under Ex.P2 stated to be executed by her vendor. On perusal of the recitals of said Sale Deed, it clearly reveals that one Sri C.V.Muralidharan S/o Madhava Variar R/o Rajajinagar, Bangalore claiming to be the absolute owner in peaceful possession and enjoyment of the property described in the schedule of 22 O.S.No.11295/2006 the Sale Deed i.e., site bearing No. 8 & 9, houselist No.244/2 and 255/2. It is also stated that said property is his self earned property and the katha stands in his name and he was paying tax. That in pursuance of Ex.P2, the Plaintiff has got changed khata n her name in this regard she has relied on Ex.P3 to P7 documents. In these documents the property number has been stated as Sy.No.8 & 9/132. Ex.P4 and P5 are stated to be the receipts issued for the amount paid for changing katha. Ex.P6 is the receipt issued by Dasarahalli Corporation. Ex.P7 is the notice issued by Dasrahalli Corporation in the name of Plaintiff demanding arrears of tax payable in respect of site Nos.8 and 9 formed in Sy.No.233/2 of Laggere village. The contents of these documents are contrary to each other. In Ex.P2 there is no reference of survey number in which the Houses bearing Nos.8 and 9 have been formed, it clearly reveals that Houses bearing Nos.8 and 9 are situated in Gramatana House list 23 O.S.No.11295/2006 No.244/2 and 255/2 of Laggere village. There is no reference of Sy.No.132 of Laggere village in Ex.P2, Sale Deed argument seems to be reasonable and acceptable. In Ex.P3 khata stands in the name of Plaintiff in respect of site Nos.8 & 9/132, as already discussed above the Ex.P3 and P4 came in existence in pursuance of Ex.P2, since there is no reference of survey number 132 or about 132, so how it has been mentioned in Ex.P3 and where from it has been brought has not been explained. The mutation order passed in this regard, has not been produced. The contents of Ex.P3 to P5, assessment extract is required to be proved with convincing evidence, it has not been done by the Plaintiff. The contents of Ex.P7, the notice stated to be issued by Dasarahalli Corporation in respect of suit schedule property does not disclose about Sy.No.132 of Laggere village, on the contrary it refers to site Nos.8 and 9 formed in Sy.No.233/2 of Laggere village. Admittedly Sy.No.132 and 233/2 are all together different properties. 24
O.S.No.11295/2006 No appropriate explanation came from the Plaintiff to establish nexus between Sy.No.132 and Sy.No.233/2. Ex.P8 has nothing to do with the establishment of title of the Plaintiff over the suit schedule property, argument seems to be reasonable. The documents relied on by the Plaintiff particularly the title deeds and other revenue documents are not tallying with each other. That as already discussed above the recitals of Ex.P2, discloses that Sri C.V.Muralidharan, the vendor of the Plaintiff had executed the Sale Deed stating that he is the absolute owner in peaceful possession and enjoyment of schedule property of said Sale Deed and katha stands in his name as on the date of suit. No piece of evidence is placed on record by the Plaintiff to show that as on the date of execution of Ex.P2, the Plaintiff's vendor was the absolute owner of the property sold by him and katha was standing in his name. The Plaintiff in her plaint contended that the Defendants No.1 to 4 being the owners of the property 25 O.S.No.11295/2006 have executed power of attorney in favour of Sri C.V.Muralidharan i.e, vendor of the Plaintiff to form layout in Sy.No.132 of Laggere village and sell the sites in favour of prospective buyers. The recitals of Sale Deed executed in favour of Plaintiff under Ex.P2 does not refers about any power of attorney and also it does not refers about the Sy.No.132 of Laggere village or forming sites or layout. So it is for the Plaintiff to establish that Sri C.V.Muralidharan was having power of attorney of owners of land bearing Sy.No.132 of Laggere village and formed the layout, accordingly sold sites formed in said land in favour of Plaintiff on their behalf. Neither the recitals of the Sale Deed nor other documents filed in support of claim of Plaintiff discloses this fact, therefore the contention of the Plaintiff that she had acquired the suit schedule site Nos.8 and 9 formed in Sy.No.132 of Laggere village under registered Sale Deed as per Ex.P2. The documents relied on by the Plaintiff are not 26 O.S.No.11295/2006 corroborating with the oral testimony of PW1 and PW2. The Plaintiff has also relied on Ex.P9, the Judgment of 43rd additional City Civil and Sessions Judge at Bangalore dt.23.1.2010 in O.S.No.6538/2006 admittedly the Plaintiff is not a party to it. On perusal of the contents of said document it reveals that one Neeta Surendra Naik filed the said suit against Defendants 1 to 4 herein for the relief of injunction in respect of site No.15 in Gramatana house list No.252 of Laggere village,wherein the Court has opined that the Plaintiff of that suit was able to prove her possession over the schedule property of that suit and alleged interference caused by the Defendants No.1 to 4 herein, accordingly passed decree restraining the Defendants of that suit from causing illegal interference over the said property. Admittedly the Defendants of that suit have not at all contested the case. Considering these facts, the Court has passed the decree in favour of the Plaintiff of that suit. It is for the Plaintiff to establish that 27 O.S.No.11295/2006 in what way the Judgment and Decree passed in O.S.No.6538/2006 is having binding effect on the present case and how it is helpful for establishing the right of ownership of the Plaintiff over the suit schedule property has not been explained by the Plaintiff herein. In this case,the Plaintiff has filed the instant suit with a specific contention that she is the absolute owner in possession and enjoyment of the suit schedule property acquired it under registered Sale Deed from her vendor. It is also specifically contended that her vendor had alienable right to alinate the suit schedule property. Under these circumstances it is for the Plaintiff to establish acquisition of her title over the suit schedule property with cogent and convincing evidence. Merely because the Court has passed a Judgment and Decree against the present Defendants in another suit in favour of third party, it cannot give rise for the Plaintiff to seek relief of declaration in respect of suit schedule property in this 28 O.S.No.11295/2006 case, argument seems to be reasonable. So Ex.P9 and P10 are in way helpful to the Plaintiff to establish her right and title over the suit schedule property. Ex.P11 is the Sale Deed dt.28.12.1990 executed by Sri C.V.Muralidhar in favour of one Smt.Neeta Surendra Naik, the Plaintiff in O.S.No.6538/06 in respect of site No.15 in Gramatana house list No.252 of Laggere village. Ex,P12 is the General Power of Attorney executed by Smt.Neeta Surendra Naik in favour of her husband to contest the case in O.S.No.6538/06 on her behalf. That according to Plaintiff vendor of both the Sale Deeds is one and the same but the names appearing in both the Sale Deeds not tallying to each other in Ex.P2 name of vendor is shown as C.V.Murlidharan on the other hand in Ex.P11 it is shown as C.V.Muralidhar that may be even considered as typographical error or mistake, even then it is for the Plaintiff to establish that what is nexus with gramathana property with Sy.No.132 of Laggere village, since 29 O.S.No.11295/2006 document relied by the Plaintiff discloses that land Sy.No.132 is a revenue land. So it is for the Plaintiff to establish all these facts independently with convincing evidence, therefore contents of Ex.P11 and P12 also does not help the Plaintiff to establish her case. The Plaintiff has also relied on Ex.P13, sketch stated to be relating to the suit schedule property. On keen observation of the contents of said documents it clearly reveals that it is neither approved nor issued by statutory authority nor it refers to schedule property referred in Ex.P2, Sale Deed. The authenticity and genuiness of the Ex.P13,Map has to be established with cogent and convincing evidence, it has not been done mere marking of a document does not amounts to proof of its contents, so without establishing the documents it cannot be relied, argument hold good. Ex.P14 is the RTC copy pertaining to land bearing Sy.No.132 measuring 4 acres 33 guntas standing in the name of one Narasimhaiah S/o Seshaiah, admittedly he is 30 O.S.No.11295/2006 one of the family member of Defendant Nos.1 to 14. Ex.P15 is the geneological tree of family of Sheshaiah,the ancestor of Defendant Nos.1 to 4. Since the Plaintiff has failed to establish nexus of suit schedule property with land Sy.No.132 of Laggere village, so both the documents are not helpful her to prove title to the suit schedule property. The Plaintiff has contended that the original owners of land bearing Sy.No.132 of Laggere village executed General Power of Attorney in favour of her vendor Sri C.V.Muralidharan who in turn has developed the property and formed the sites, thereafter sold two sites in her favour as per Ex.P2. In this regard she has relied on Ex.P16, the General Power of Attorney stated to be executed by Narasimahaiah and others, the original owners of land Sy.No.132 of Laggere village. On going through the contents of said document it clearly reveals that Sri Narasimhaiah and others have given authorisation to one Sri C.V.Muralidharan for signing on 31 O.S.No.11295/2006 their behalf and to make necessary application and represent them in any proceedings and to give consent on their behalf and to sign all necessary papers. But it does not disclose about any sale made in his favour or consideration paid by him to the original owners. So said document cannot be considered as document of conveyance of suit schedule property. Moreover in Ex.P2 there is no reference about Sy.No.132 of Laggere village, the General Power of Attorney stated to be executed by Narasimhaiah and others in favour of Sri C.V.Muralidharan under Ex.P16 gives right for him to alienate the sites formed in Sy.No.132 of Laggere village, so the Plaintiff's contention that she had acquired right over suit schedule property, does not holds water. The other documents relied on by the Plaintiff under Ex.P17 to P25 also noway helpful for her to establish her title over the suit schedule property. The Plaintiff has also relied on several photographs and C.D. under Ex.P26 to P30, they 32 O.S.No.11295/2006 do not establish the title of the Plaintiff over the suit schedule property. Ex.P31 is the RTC extract pertaining to Sy.No.132 of Laggere village disclosing the name of Narasimhaiah S/o Sesha. Ex.P32 to 42 are the katha certificate, katha extract, tax paid receipts and encumbrance certificate stated to be pertaining to suit schedule property. Though there is reference about property bearing No.8 & 9/132, as already discussed above, the Plaintiff has failed to prove that how 132 has been inserted in the said documents. The very base on which the Plaintiff is claiming her right over the suit schedule property is the Sale Deed under Ex.P2 and right of her vendor stated to be acquired under Ex.P16 are not corroborating to each other and they appears to be altogether different. Moreover though the Plaintiff in the plaint categorically contended that her vendor Sri C.V.Muralidharan was the absolute owner of the suit schedule property and he had executed Ex.P2 Sale Deed 33 O.S.No.11295/2006 in her favour, but no document has been placed on record to substantiate her contention disclosing the ownership of Sri C.V.Muralidharan over the suit schedule property. Even the contents of Ex.P2 also states that Sri C.V.Muralidharan being the absolute owner having katha in his name by paying tax to concerned authority executing said Sale Deed in favour of Plaintiff , but no piece of evidence is placed on record to show that said Sri C.V.Muralidharan was the absolute owner and having right to execute Sale Deed in favour of Plaintiff. The PW1 and PW2 though deposed supporting the case of the Plaintiff and contended that the Plaintiff is the absolute owner in possession and enjoyment of the suit schedule property, having acquired it under the Sale Deed executed by competent person, but the documents relied on by the Plaintiff are not corroborating with their oral evidence. Further some of the documents relied on by the Plaintiff being revenue documents cannot be construed as title 34 O.S.No.11295/2006 deeds, therefore based on katha certificate, katha extract and tax paid receipts issued by B.B.M.P and Dasarahalli Corporation, it is unreasonable to come to conclusion that the Plaintiff is absolute owner of the suit schedule property. She is miserably failed to prove Issue No.1 and Additional Issue No.1 framed on 02.06.2017. That it is the specific case of the Defendant Nos.15 and 16 that they are the bona fide purchasers of the sites for valuable consideration, their vendor have executed registered Sale Deeds in their favour. It is admitted fact that the land bearing Sy.No.132 of Laggere village originally belonged to the family of Narasimahaiah and Defendants 1 to 4 who are the legal representatives of said Narasimhaiah having acquired the said property by way of succession executed the Sale Deed in favour of vendor of Defendants 15 and 16. Further the documents relied on by the Defendants have supported their contention. Since the Plaintiff has approached this Court with specific plea that 35 O.S.No.11295/2006 she is the absolute owner of suit schedule property, the burden is on her to establish her right,title, interest and possession over the suit schedule property, as on the date of the suit. As already discussed above, she has miserably failed to prove this fact with cogent and convincing evidence, therefore based on the documents as well as evidence of Defendants, it clearly reveals that the Defendants No.15 and 16 are the bona fide purchasers of site No.8 and 9 formed in Sy.No. No.132 of Laggere village, arguments apepars to be acceptable. Hence the Defendants 15 and 16 have proved Addl. Issue No.1 framed on 12.10.2018, hence I answered Issue No.1 and Addl.Issue No.1 framed on 2.6.2017 in the Negative and Addl. Issue No.1 framed on 12.10.2018 in the Affirmative.
Issue No.2:
15. It is the specific case of the Plaintiff that she is the absolute owner in possession and enjoyment of the 36 O.S.No.11295/2006 suit schedule property having acquired it under the registered Sale Deed dt.21.1.1991 as per Ex.P2. The Defendants having no right, title or interest are trying to interfere with her peaceful possession and enjoyment over the suit schedule property illegally and also trying to demolish the building as well as compound wall around the property. As already discussed in the above Issues,it is quite clear that the Plaintiff has failed to prove acquisition of title over the suit schedule property under the registered Sale Deed as per Ex.P2. The source of acquisition of title claimed by the Plaintiff over the suit schedule property is under registered Sale Deed dt.21.1.1991 as per Ex.P2. Admittedly the Plaintiff has not produced the documents to show that her vendor had title and right to alienate the schedule property nor he has been examined to establish lawful execution of the Sale Deed relied under Ex.P2, therefore she has miserably failed to establish her title, such being the facts of the 37 O.S.No.11295/2006 case, her contention that she was put in possession and enjoyment of the suit schedule property as per Ex.P2 does not holds water, therefore her further contention that the Defendants are illegally trying to dispossess her from the suit schedule property and illegally trying to demolish the compound wall as well as building stated to be existed in the suit schedule property also does not holds water. The evidence relied on by the Plaintiff are totally insufficient to establish her title as well as possession over the suit schedule property as on the date of suit, therefore her contention about alleged illegal interference caused by the Defendants cannot be considered, argument cannot be rejected. Hence, she has failed to prove this Issue, accordingly I have answered it in the Negative.
Additional Issue No.3 framed on 14.2.2018:
16. It is the specific case of the Plaintiff that she has acquired the suit schedule property under registered Sale Deed dt.21.1.1991 executed by one Sri 38 O.S.No.11295/2006 C.V.Muralidharan for a valuable consideration. It is further case of the Plaintiff that the Defendants and other family members claiming to be the owners of land measuring 4 acres 33 guntas in Sy.No.132 of Laggere village have executed General Power of Attorney in favour of Sri C.V.Muralidharan i.e., the vendor of the Plaintiff who has formed layout and several sites thereby sold them to different persons including Plaintiff. It is also contended that the persons who have purchased sites through him are in possession and enjoyment of their respective sites. The Defendants claim that they have revoked the power of attorney executed in favour of Sri C.V.Muralidharan, in this regard several correspondences have taken place between the vendor of Plaintiff and Defendants wherein it is made it clear that in pursuance of execution of General Power of Attorney, sites have been formed and they have already been sold and the respective purchasers are put in possession of said sites, 39 O.S.No.11295/2006 hence revocation does not affect their right, therefore the Sale Deeds executed by Defendants interse in respect of suit schedule property dt.4.1.2009 and 1.7.2013 are null and void, not binding on the Plaintiff. As already discussed in the above Issues, it is quite clear that the Plaintiff has miserably failed to establish the fact of acquisition of title over the suit schedule property from proper person. The documents relied on by the Plaintiff are not supporting her contention, she has miserably failed to show nexus of Sy.No.132 to the suit schedule property. So also the right of her vendor to execute Sale Deed in respect of suit schedule property, therefore the transactions held between Defendants No.1 to 4 and other Defendants in respect of portion of land bearing Sy.No.132 cannot be challenged by the Plaintiff, argument seems to be reasonable. Since the Plaintiff is unable to establish acquisition of her right in respect of any portion of land bearing Sy.No.132 of Laggere village, 40 O.S.No.11295/2006 she cannot question the Sale Deeds executed between Defendants interse, argument seems to be reasonable. Admittedly the schedule of the Sale Deed under which the Plaintiff is claiming her right i.e., Ex.P2 is in respect of house bearing No.8 & 9 in Gramatana House List No.244/2 and 255/2 of Laggere village, appears to belongs to Grmathana land on the other hand land bearing Sy.No.132 of Laggere village belongs to revenue land, therefore the very claim of the Plaintiff in respect of portion of land bearing Sy.No.132 of Laggere village is unsustainable. Admittedly the Plaintiff has not placed any document showing she is having any kind of right in respect of land bearing Sy.No.132 of Laggere village. Since the Plaintiff is not party to the Sale Deeds held in favour of Defendants interse, they are not binding on her, but they cannot be declared as null and void as they have been executed between competent parties. Taking into consideration of all these facts and circumstances it is 41 O.S.No.11295/2006 quite clear that the Plaintiff has miserably failed to prove Additional Issue No.3 framed on 14.2.2018, accordingly I have answered it in the Negative.
Additional Issue No. 3 framed on 12.10.2018:
17. According to the Defendants, the Plaintiff is not in possession and enjoyment of the suit schedule property,she has filed this suit for declaration of ownership with consequential relief and recovery of possession in respect of suit schedule property, she has not properly valued the suit and the Court Fee paid by her is insufficient. Initially the Plaintiff has filed the present suit for the relief of injunction, accordingly she has valued the suit for a sum of Rs.1000/, accordingly the Court Fee of Rs.25/ is paid u/s 26(c) of the Karnataka Court Fee and Suit Valuation Act. Later she got amended the plaint and sought for the relief of declaration of ownership with consequential relief of mandatory injunction, accordingly the suit has been valued u/s 24(b) of the Karnataka Court 42 O.S.No.11295/2006 Fee and Suit Valuation Act and Court Fee of Rs.41,175/ has been paid, based on the valuation of the Sale Deed relied on by her. Though the Defendants in their written statement contended that the suit is not properly valued and Court Fee paid is insufficient, but they have not produced single piece of document to deny the valuation made by the Plaintiff, so also they have not produced sufficient material to establish their contention. Though the DW1 and DW2 have been examined on behalf of the Defendants, except making oral allegation that the suit of the Plaintiff is not properly valued and Court Fee paid is insufficient, they have not produced any other documents. The burden of proving this Issue is initially on the Plaintiff, she is able to establish that she has valued the suit schedule property and Court Fee paid on the pliant is sufficient. This fact has not been rebutted by the Defendants by producing sufficient material, therefore in 43 O.S.No.11295/2006 my view the Plaintiff has proved this Issue, accordingly I have answered it in the Affirmative.
Additional Issue No.2 framed on 12.10.2018:
18. According to the Defendant No.15, the suit of the Plaintiff is hopelessly barred by law of limitation, the Plaintiff is claiming to be the owner of suit schedule property having acquired it under registered Sale Deed dt. 21.1.1999 said to be executed by one Sri C.V.Muralidharan,based on General Power of Attorney stated to be executed by original owners of land said GPA has been revoked much prior to the year 2002, but she has filed this suit only for declaration in the year 2006, on the contrary in the plaint itself she has contended that the Defendants have filed a suit in O.S.No.7405/2002 for partition, from the date of said suit the Plaintiff ought to have filed this suit within 3 years, on the other hand she has filed this suit in the year 2006, hence the suit filed by the Plaintiff is hopelessly barred by law of limitation, 44 O.S.No.11295/2006 prayed for dismissal of the suit. These facts have been denied by the Plaintiff and contended that there is no proper revocation of the GPA, the revocation notice issued by Defendants No.1 to 4 has been suitably replied, though the Defendants got filed the suit for partition in the year 2002 in respect of land bearing Sy.No.132, it has been dismissed, therefore the contention of the Defendants that the present suit ought to have been filed within 3 years from the date of alleged revocation of GPA or from the date of filing of the said partition suit does not holds good. Moreover the Defendants have executed Sale Deeds in respect of suit schedule property during pendency of the present suit, hence the contention of the Defendants that the suit of the Plaintiff is hopelessly barred by law of limitation does not holds water. On perusal of the evidence placed on record by both the parties, one point is clear that the Defendants have not placed evidence before the Court to show that much prior 45 O.S.No.11295/2006 to filing of this suit, the title of the Plaintiff has been disputed by either of the Defendants and same was within the knowledge of the Plaintiff much prior to filing of the present suit, such being the case, it is unreasonable to accept that the Plaintiff's suit if hopelessly time barred, therefore the Defendants have miserably failed to prove this issue, accordingly I have answered it in the negative. Issue No.3, Additional Issue No.2 dt.2.6.2017 and Additional Issue No.4 dt.14.2.2018:
19. According to Plaintiff she is the absolute owner in possession of the suit schedule property, the Defendants are illegally trying to dispossess her from the suit schedule property and also trying to demolish the compound wall existing in the suit schedule property, the act of the Defendant is illegal and contrary to the right and interest of the Plaintiff, therefore she is entitled for the relief of declaration of ownership and injunction against the Defendant restraining them from illegally interfering with the alleged peaceful possession and 46 O.S.No.11295/2006 enjoyment of the Plaintiff over the suit schedule property, so also she is entitled for relief of mandatory injunction against the Defendants for demolishing the building constructed over the portion of suit schedule property. As already discussed in the above issues, the Plaintiff has miserably failed to prove her right of ownership over the suit schedule property, therefore her contention that she is in possession and enjoyment of the suit schedule property as on the date of suit, without establishing these facts she is not entitled for the relief of declaration, possession and mandatory injunction, argument seems to be reasonable. The Plaintiff has failed to prove Issue No.3, Additional Issue No.2 dt.2.6.2017 and Additional Issue No.4 dt.14.2.2018, hence I answered these Issues in the Negative.
Issue No.4:
20. For the various reasons discussed in all the above Issues and findings given by me on them, I proceed 47 O.S.No.11295/2006 to pass the following:
ORDER Suit of the plaintiff is hereby dismissed with costs. Draw decree accordingly.
(Dictated to the Judgment writer, transcript corrected, signed and then pronounced by me in the open court, this the 6th day of January 2022) (MALLIKARJUNA) XIV Addl.City Civil & Sessions Judge holding C/C of XXXVIII Additional City Civil and Sessions Judge, Bangalore City.
ANNEXURE
1. List of witnesses examined for plaintiff:
PW1 S.Amarnath PW2 K.Parameshwara Bhat
2. List of documents exhibited for plaintiff :
Ex.P1 Special Power of Attorney Ex.P2 Original Sale Deed dt. 21.1.1991 Ex.P3 Details of tax paid 48 O.S.No.11295/2006 Ex.P4 to Tax paid receipts P6 Ex.P7 Copy of notice Ex.p8 Acknowledgement issued by Rajagopalanagar polie Ex.P9 & Certified copy of the judgment and 10 decree in O.S.No.6538/2006 on the file of 43rd Additional City Civil Sessions Judge Bangalore Ex.P11 Certified copy of Sale deed dt.28/12/1990 Ex.P12 Certified copy of the General Power of Attorney executed by Neeta Surendra Nayak Ex.P13 Certified copy of the layout plan Ex.P14 Certified copy of the RTC in survey No.132 of Laggere village. Ex.P15 Certified copy of the Genealogical tree Ex.P16 Certified copy of the General Power of Attorney executed by Narasimhaiah Ex.P17 Certified copy of the legal notice dt.13/7/2006 Ex.P18 Certified copy of the acknowledgement Ex.P19 Certified copy of paper publication Ex.P20 Certified copy of the acknowledgment issued by Rajagopalanagar PS Ex.P21 Certified copy of the photos 3 in numbers Ex.P22 Certified copy of the order sheet in O.S.7405/2002 on the file of City Civil Court Bangalore Ex.P23 Certified copy of the plaint and written statement in O.S.7405/2002 49 O.S.No.11295/2006 Ex.P24 Certified copy of the legal notice 5/7/2006 Ex.P25 Certified copy of Sale deed dt 17/6/2006 Ex.P26 7 photos Ex.P27 CD Ex.P28 Certified copy of Sale deed dt29/8/20016 Ex.P29 6 photos Ex.P30 CD Ex.P31 RTC pertaining to survey No.132/4 of Laggere village Ex.P32 Khatha certificate Ex.P33 Khatha extract issued by BBMP Ex.P34 8 Tax paid receipts for the year 2008 to41 09 to 201516 Ex.P42 Encumbrance certificate Ex.P43 Certified copy of Sale deed dt 15/6/2006 Ex.P.44 Certified copy of Judgment passed in O.S. 6538/2006. Ex.P45 Certified copy of Sale Deed dt.7.1.1991 Ex.P45a Typed copy of Ex.P45 Ex.P46 Certified copy of Sale Deed dt.16.6.2012
3. List of witnesses examined for defendant:
DW1 Yateendraswamy V.S.
DW2 M.Varadaraju
4. List of documents exhibited for defendant:
Ex.D1 to 21 RTCS pertaining to survey No.132 50 O.S.No.11295/2006 Ex.D21 of Laggere village Yeshawanthpura Hobli Ex.D22 Holder Khatha Ex.D23 Certified copy of Sale deed dt 4/12/2009 Ex.D24 Certified copy of Sale deed dt 2/8/2012 Ex.D25 Certified copy of Sale deed dt 1/7/2013 Ex.D26 to 4 Encumbrance certificates 29 Ex.D30 10 tax paid receipts Ex.D31 B property register Ex.D32 & Certified copy of judgment and decree 33 in O.S. No.25436/2010 Ex.D34 Sanction ticket issued by Indian Bank Ex.D35 Permission letter issued by BESCOM Ex.D36 Permission letter issued by BESCOM Ex.D37 Payment receipts to BESCOM 12 in numbers Ex.D38 Electricity bill 15 in numbers Ex.D39 Permission letter issued by BWSSB Ex.D40 Payment receipt of BWSSB Ex.D41 Official memorandum issued by Bescom Peenya Ex.D42 Copy of the complaint lodged with Rajagopalanagar PS Ex.D43 Acknowledgement issued by Rajagopalanagar PS Ex.D43(a) Tax paid receipt Ex.D44 to Four tax paid receipts 47 Ex.D48 Certified copy of Sale Deed dt.15.6.2006 51 O.S.No.11295/2006 Ex.D49 Copy of Rectification deed dt.9.11.2015 Ex.D50 Copy of Sale Deed dt.29.8.2016 Ex.D51 Copy of consent deed dt.23.2.2017 Ex.D52 Encumbrance Certificate (MALLIKARJUNA) XIV Additional City Civil & Sessions Judge holding c/c of XXXVIII Addl.City Civil & Sessions Judge,Bangalore City. 52 O.S.No.11295/2006 53 O.S.No.11295/2006