Bangalore District Court
In Sri.E.Venkatarathnam vs "D" Group Employees on 25 April, 2016
IN THE COURT OF THE XII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH.No.27), AT BANGALORE.
PRESENT:SRI.BHAIRAPPA SHIVALING NAIK, B.Com.,LL.B.(Spl),
XII Addl.City Civil & Sessions Judge, Bangalore.
DATED: THIS THE 25TH DAY OF APRIL 2016
O.S.No.5597/2011, O.S.No.5599/2011, O.S.No.
5600/2011, O.S.No.5601/2011 and O.S.No.5623/2011
Plaintiff in Sri.E.Venkatarathnam
O.S.No.5597/ s/o. late E.Nagaiah Shetty,
2011:- aged about 58 years,
r/at.no.29, Opp:I.E.W
8th cross, Magadi Road,
Bengaluru -560023.
(By Sri.S.Jayarama Bhatt-
Advocate)
Plaintiff in Sri.B.K.Aswathnarayana,
O.S.No.5599/ s/o. Kariappa
2011:- aged about 41 years,
No.108, 4th cross,
HVR Layout,
Magadi Road,
Bengaluru -560079.
(By Sri.S.Jayarama Bhatt,
Advocate)
2 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
Plaintiff in Sri.M.K.Siddagangaiah,
O.S.No.5600/ s/o. Karianna
2011:- Aged about 56 years,
No.349, 13th B Cross,
Vayyalikaval, Malleshwaram,
Bangalore-560003.
Plaintiff in Sri. M.K. Krishnegowda
O.S.No. s/o. Karianna
5601/2011:- Aged about 36 years,
No.349, 13th B Cross,
Vayyalikaval, Malleshwaram,
Bangalore-560003
Plaintiff in Smt. P.A. Saraswathi
O.S.No. W/o K.Ramesh
5623/2011:- Aged about 54 years,
Mathura Krupa,
No.22, V Main Road,
Agrahara Dasarahalli,
Magadi Road, Bengaluru-79.
-VS-
Defendants 1. "D" Group Employees
common in all Association.
the aforesaid (Regd) II Floor,
suits:- M.S.Building,
Dr.Ambedkar Veedi,
Bengaluru -56001,
Represented by
Its President.
3 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
2. Sri. Ashok Kumar
s/o. Kempanna
aged about 23 years,
3. Sri.Vasanth Kumar,
s/o. Kempanna
aged about 20 years,
4. Sri.Varun Kumar,
s/o. Kempanna
aged about 18 years,
5. Master Prashanth,
s/o. Kempanna
aged about 16 years,
represented by his
mother and natural
guardian Smt.Puttamma
w/o. Kempanna,
aged about 43 years,
All are residing at
Gidada Konenahalli,
Yeshwanthpura Hobli
Vishwaneedam Post,
Bengaluru -560091.
6. Smt.Nagambika,
w/o. Srinivasa Murthy
d/o. Kempanna,
aged about 25 years,
No.14/102, Gandhinagar,
Yelahanka, Bengaluru
4 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
7. Sri.Narayana Swamy,
@ Maregowda,
s/o. Lakshmi
Hanumantharayappa
Aged about 34 years,
8. Sri.Anantha Kumar,
s/o. Lakshmi
Hanumantharayappa,
aged about 32 years,
both are residing at Gidada
Konenahalli, Yeshwanthpura
Hobli, Vishwaneedam Post,
Bengaluru -560091.
9. Smt.Padmaja
d/o. Lakshmi
Hanumantharayappa,
aged about 30 years,
r/at.Heggadadevanapura
Madanayakanahalli Post,
Dasanupura Hobli,
Bengaluru North Taluk.
10. Sri.Sharath Kumar
s/o. T.Hanumaiah,
aged about 25 years,
11. Sri.Hemanth Kumar,
s/o. T.Hanumaiah,
aged about 23 years,
5 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
Both are residing at
Gidada Konenahalli,
Yeshwanthpura Hobli,
Vishwaneedam Post,
Bengaluru -560091.
12. Kum. Anjanadevi,
d/o. T.Byregowda,
aged about 22 years,,
13. Kum.Ganga Lakshmamma
d/o. T.Byregowda,
aged about 19 years,
14. Kum.Umadevi,
d/o. T.Byregwoda,
aged about 16 years,
represented by their
mother and natural guardian
Smt.Sharadamma
w/o. T.Byregowda,
aged about 35 years,
15. Master Mohan Kumar,
s/o. T.Byregowda,
aged about 16 years,
represented by their
mother and natural guardian
Smt.Sharadamma
w/o. T.Byregowda,
aged about 35 years,
6 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
All are residing at
Gidada Konenahalli,
Yeshwanthpura Hobli
Vishwaneedam Post,
Bengaluru -560091.
16. Sri.T.Ramakrishnappa
s/o. Late Thammannappa
aged about 65 years,
17. Sri.Lakshmi
Hanumantharayappa
s/o. Late Thammannappa
aged about 61 years,
18. Sri.T.Kempanna
s/o. Late Thammannappa
aged about 47 years,
19. Sri.T.Hanumaiah,
s/o. Late Thammannappa
aged about 42 years,
20. Sri.T.Byregowda
s/o. Late Thammannappa
aged about 42 years,
Residing together at
Gidada Konenahalli,
Yeshwanthpura Hobli
Vishwaneedam Post,
Bengaluru -560091.
7 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
21. Smt. Mubeena Kouser,
w/o. Sri.Mirza Saifuddin,
aged about 37 years,
22. Smt.Abeeda Begum,
d/o. late Mirza Khalidulla,
aged about 42 years,
both are residing at No.12,
15th cross, Kempaiah Block,
J.C.Nagar,
Bengaluru 560006.
23. H.K.Krishnappa,
s/o. late Kenger Gowda,
aged about 50 years,
r/at.no.2481/A,
'D' Group Layout,
Gidada Konenahalli,
Visveswaraiah layout,
8th block,
Bengaluru -560091.
(By Deft.1:Sri.M.V.B.
Deft-2 to
15:Sri.S.R.Nagaraj-
Advocate
Deft- 17-20: Exparte
Deft:16: G.Sonnappa
Deft: 21 & 22: G.R.S.&
Associates Sri. , Advocate)
8 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
O.S.No.5597/2011
Date of Institution of the suit : 02.08.2011
Nature of the suit : Declaration and Permanent
Injunction
Date of commencement of
recording of the evidence : 03.09.2013
Date on which the Judgment was
Pronounced : 25.04.2016
Total Duration Years Months Days
: 04 08 23
O.S.No.5599/2011
Date of Institution of the suit : 02.08.2011
Nature of the suit : Declaration and Permanent
Injunction
Date of commencement of
recording of the evidence : 03.09.2013
Date on which the Judgment was
Pronounced : 25.04.2016
Total Duration Years Months Days
: 04 08 23
O.S.No.5599/2011
Date of Institution of the suit : 02.08.2011
Nature of the suit : Declaration and Permanent
Injunction
Date of commencement of
recording of the evidence : 03.09.2013
9 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
Date on which the Judgment was
Pronounced : 25.04.2016
Total Duration Years Months Days
: 04 08 23
O.S.No.5600/2011
Date of Institution of the suit : 02.08.2011
Nature of the suit : Declaration and Permanent
Injunction
Date of commencement of
recording of the evidence : 18.09.2013
Date on which the Judgment was
Pronounced : 25.04.2016
Total Duration Years Months Days
: 04 08 23
O.S.No.5601/2011
Date of Institution of the suit : 02.08.2011
Nature of the suit : Declaration and Permanent
Injunction
Date of commencement of
recording of the evidence : 18.09.2013
Date on which the Judgment was
Pronounced : 25.04.2016
Total Duration Years Months Days
: 04 08 23
10 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
O.S.No.5623/2011
Date of Institution of the suit : 03.08.2011
Nature of the suit : Declaration and Permanent
Injunction
Date of commencement of
recording of the evidence : 18.09.2013
Date on which the Judgment was
Pronounced : 25.04.2016
Total Duration Years Months Days
: 04 08 22
(BHAIRAPPA SHIVALINGA NAIK)
XII Addl. City Civil & Sessions Judge,
Bangalore
C O M M O N J U D G M E N T
These suits are filed by the respective plaintiff in the
aforesaid suits for the relief of declaration and consequential
relief of permanent injunctions against the defendants.
2. The case of the plaintiff in the aforesaid suits is that;
The plaintiff has been a member of the defendant No.1
from many years. The plaintiff being a member of the
11 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
defendant No.1 association was allotted a site as described in
the schedule annexed to the plaint in the layout of Karnataka
State Government "D' Group Employees Association at
Srigandhada kavalu , Sunkadhakatte, Bangalore North Taluk in
Sy.No. 3/4 of the Gidadakonenahalli village, Yeshwanthapura
Hobli, Bangalore District which was acquired by the Government
and then granted to defendant No.1 Association under Gazette
Notification dated 10.12.2002. The said land was converted to
non -agricultural purpose vide conversion order
No.ALN(N)/SR/92/03-04 dated 25.10.2003. The defendant
No.1 association after allotting the suit schedule property issued
a possession certificate to the plaintiff. Thereafter, the 1st
defendant association represented by its President
Mr.B.M.Nataraj and its General Secretary Mr.C.Govindaraju
executed a sale deed for the schedule property in favour of the
plaintiff on 28.11.2003 and also issued no objections certificate.
12 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
Thereby the plaintiff became absolute owner of the suit
property. The plaintiff has been paying the property tax.
3. The facts being so, the defendants No. 2 to 15 along
with certain anti social elements all of sudden in the month of
June 2011 came to the suit property and threatened to evict the
plaintiff from the suit property, claiming that an order passed
by the Civil court, Bangalore passing over the ownership of the
schedule property including a few of the neighbours of the
plaintiff's properties to them. After getting information the
plaintiff realized that the suit was filed by the defendant No.2
to 15 against the defendant No.16 to 20 including defendant
No.1 claiming partition of property and permanent injunction
against the defendant No.1. The said suit was decreed on the
basis of the compromise petition filed by the defendant No.1 and
the defendants No.2 to 20. As per the compromise petition
dated 17.3.2011 the defendant No.1 gave away both possession
and enjoyment of the 38,000 Sq.ft comprised in survey No.3/4
13 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
of Gidadakonenhalli Village, Yeshwanthapura Hobli, Bangalore
North Taluk in O.S.No.4186/2008. The said 38,000 Sq.ft of
land includes the schedule property. The defendant No.1
without having right over the schedule property to deal with the
same has entered into compromise. The defendant No.1 has
falsely stated in the compromise petition of having held a
meeting to pass the resolution on 23.6.2010 to compromise with
the defendant Nos.2 to 20. The defendant No.1 has acted in
connivance with the other defendants much to the suffering and
loss of the plaintiff. The compromise entered into by the
defendants is invalid as no resolution has been passed by the
defendant No.1 taking its members into confidence.
4. The plaintiff has further submitted that the entire
land survey No.3/4 was acquired by the Government under the
Land Reform Act and then transferred to the defendant No.1
association for distribution of the same to its members. This
fact has been hidden completely from the Civil Court by both the
14 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
parties in the said suit. In view of acquisition of the land by the
Government the partition suit was not maintainable without
questioning the acquisition proceedings before the proper forum.
There was no cause of action to file the said suit either for
partition or for permanent injunction. The defendants obtained
compromise decree dated 17.3.2011 in the said suit by playing
fraud on the court and the same deserves to be set aside. The
defendants No.2 to 15 have now strengthened by the impugned
order are forcing the plaintiff to evict from the premises and
hand over possession to them. Hence, the plaintiff has
constrained to file the suit for permanent injunction against the
defendants either from dispossessing the plaintiff or from the
alienating the suit schedule property to 3rd parties by declaring
judgment and decree dated 17.3.2011 passed by the civil court in
O.S.No. 4186/2008 is null and void ab-initio and not binding on
the plaintiff.
15 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
5. In response to the suit summons the defendants No.1
and 2 to 15 have appeared through their learned counsel and
resisted the claim of the plaintiff by filing their separate
written statements. The defendants No.16 to 20 are exparte.
6. The said defendants have denied each and every
allegations made in the plaint are false. In turn the defendant
No.1 has submitted that the plaintiff is not in possession or
enjoyment of the suit property. The plaintiff cannot entitle to
seek for the relief of declaration and perpetual injunction
against the defendants who are lawful owners in possession and
enjoyment of the suit property. The plaintiff has deliberately
suppressed the truth and material facts. The defendant No.1 is a
association functioning for the welfare of its members and
having an object to provide the residential sites to its members.
The plaintiff has not complied with the mandatory issuance of
statutory notice under the provisions of the act. The defendant
No.1 is an association registered under the Karnataka Society
16 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
Registration Act. The defendant No.1 has denied that the
schedule property was allotted and they issued possession
certificate to the plaintiff and soon after issuing the possession
certificate to the plaintiff and after issuance of conversion
order passed by the Special Deputy Commissioner, Bangalore
District, executed sale deed for the schedule property in favour
of the plaintiff and also issued no objections certificate. It is
also denied that the defendants No.2 to 15 along with certain
anti social elements came to the schedule property in the month
of June 2011 and threatened to evict plaintiff from the suit
schedule property on the garb of the compromise decree passed
by the Civil Court. It is also denied that the compromise
entered by the defendants is invalid as no resolution has been
passed by the defendant No.1 association taking its members
into confidence. The impugned order dated 17.3.2011 passed in
the said suit was obtained by the defendants by playing a fraud
on the court and it deserves to be set aside.
17 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
7. The defendant No.1 has further pleaded that the
defendant is not in possession of the land and grating injunction
against the defendant No.1 is totally baseless. The land is
already in possession of the land owners through compromise
decree. The application for impleading of present plaintiff has
been rejected in O.S.No.4186/2008 on the ground that the
plaintiff has no independent right and claiming the right through
the association. Thereafter the said suit was compromised on
17.3.2011. The plaintiff has not challenged rejectment of the
impleading application. Inspite of it plaintiff came and
approached the 1st defendant and sought for an alternative site
or refund of the deposited amount. When such being fact, the
present suit is filed only to harass the defendants. In the earlier
O.S.No. 4186/2008, totally 59 members had filed an impleading
application but only these plaintiffs have come before this court
and remaining members have also obtained the alternative sites
or received the deposited amount. The plaintiff has not chosen
18 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
the proper remedy before the appropriate court. The
compromise was made for the sake of other alloties and persons
who have lost their site will be provided an alternative site. The
plaintiff after obtaining the interim order has issued caution
notice in paper publication. The suit is bad for non-joinder and
mis-joinder of parties and also barred by limitation. Therefore,
it is prays to dismiss the suit with exemplary cost.
8. The defendants 2 to 15 have also denied all the
allegations and assertions made in the plaint as false. In turn, it
is submitted that Ashok Kumar and his brothers and sisters
being sons of Kempanna, Sri.Narayanaswamy and brothers and
sisters being children of Lakshmihanumantharayanappa,
Sri.Sharath Kumar and his brother being the sons of
T.Hanumaiah, Anjanadevi and sisters and brothers being the
children to T.Byre Gowda field O.S.No.4186/2008 on the file of
Addl. City Civil Court, Bengaluru seeking the reliefs of partition
by metes and bounds and for delivery of possession of their
19 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
shares and for relief of declaration that the Sale Deed
executed by their respective vendors in favour of the alleged
vendor of the plaintiff and consequently, the relief of permanent
injunction in respect of the lands bearing Sy.No.3/3, 8/14, 8/15
and 8/16 of Gidadakonenahalli, Yeshwanthpura Hobli, Bengaluru
North Taluk., against the respective vendors and vendor of the
plaintiff herein. They have pleaded in the plaint in that suit that
the said lands are their ancestral and joint family properties and
they are entitled for allotment of legitimate respective shares.
The said defendant No.1 -association was defendant No.6 in the
said suit. The defendant No.1 conceded the claim of the
plaintiffs herein and came forward and agreed for a compromise.
In pursuance of the compromise petition, a final decree was
passed in O.S.No.4186/2008 and it was also registered before
the Sub-Registrar. The defendants 2 to 15 have pleaded that
schedule-'A' and 'B' properties annexed to the compromise
decree. As per the compromise decree, the defendants 2 to 15
20 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
are in joint possession of the schedule properties. Since the
defendants got absolute rights and possession through a final
decree, they sold the respective shares jointly by way of
registered Sale Deed dated.22.7.2011 for their legal necessities
and the possession has been delivered in favour of the
purchasers. Thus the plaintiff is not in possession of the plaint
schedule property at any point of time.
14. The defendants 2 to 15 have further submitted that
most of the allottees have sought for allotment of alternative
sites and refund of the amount paid by them to the defendant
No.1. In view of the final decree passed in O.S.No.4186/2008, it
is the duty of the plaintiff to approach the defendant No.1 to
allot alternative site or refund of the sale price. Defendant No.1
is also a party in O.S.No.4186/2008 and the terms and
conditions of the final decree are binding on the defendant No.1.
The plaintiff has no locus-standi to maintain the suit against
them. It is further submitted that there is a clear recital in the
21 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
Sale Deed executed in favour of purchasers that the possession
has been delivered to the purchasers. Wherefore, defendants 2
to 15 have also prayed to dismiss the suit with costs.
15. It is relevant to note here that as per order dated
18.2 2013, defendants No 21 and 22 have been impleaded.
16. The defendants No.21 and 22 have filed their
written statement to the effect that no cause of action is made
out as against them. The plaintiff has no locus standi to maintain
the suit as against them. The defendants No.2 to 15 are the
children of defendants' No. 16 to 20. The lands situated in
Sy.No.3/4, 3/3, 8/14, 8/15, and Sy.No.8/16 of
Giddadhakonenahalli Village, Yeshwanthapura Hobli, Bangalore
North Taluk are ancestral joint family properties belong to
defendants No.2 to 20 they were coparceners in joint possession
enjoyment and exercising joint rights. The defendants No.2 to
15 apart from the defendant No.16 to 20 were having their
distinct, independent shares in the said lands. The defendants
22 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
16 to 20 without making their coparcener children namely the
defendants No.2 to 15 as parties to sale deed, sold land
situated in the said Sy.No in favour of 1st defendant under
registered sale deed dated 18.2.2003. The sale is neither for
legal nor for family necessity nor for benefit of the estate. The
defendants 2 to 15 were never conveyed transferred to
Defendant No.1. In that back ground, the defendants No.2 to 15
filed O.S.No. 4186/2008 against the defendant No.1 and
defendants No. 16 to 20 herein on the file of Additional City
Civil Judge, Bangtalore seeking relief of partition delivery of
possession of their shares, for the relief to declare that the
sale deed dated 18.2.2003 registered in favour of defendant
No1 is null and void and not binding on them and other
consequential relief in respect of the said Sy.Nos of lands.
17. The defendants 2 to 15 herein were the plaintiffs and
1st defendant and defendants' No. 16 to 20 herein were
defendant No.6 and defendant No.1 to 5 respectively in
23 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
O.S.No.4186/2008. These defendants have further pleaded
that the defendants 2 to 15 in pursuance of compromise
petitioner filed by both the parties the final decree was passed
by the court and registered in the concerned office of the sub
registrar. By virtue of the final decree all the children of
Kempann, Lakshmihanumantharayappa, T.Hanumaiah and
T.Byregowda i.e., defendants No.2 to 6, defendants 7 to 11 and
defendants 12 to 15 were allotted 19,200 Sq.ft in land Sy.No.3/4
as described in the A and B schedule property and delineated by
alphabets ABCD and DEFG and shown in the green colour in the
layout map annexed to the final decree which was acted upon.
The plaintiffs in the said suit were put in possession to the
extent as allotted to their shares under final decree.
18. The defendants No.21 and 22 further submitted that
the plaintiff himself has admitted in Para No.9 of plaint not only
the allotment but also possession of the defendants No.2 to 15
over the said portion of the land. The defendants No.2 to 15 as
24 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
the joint owners sold away the land measuring East to West 240
feet and North to South 80 feet totaly 19200 Sq.ft and
another extent of property measuring East to West 80 feet and
North to South 210 feet totally 16,800 Sq.ft through registered
sale deed dated 22.7.2011. The properties purchased by
defendants No.21 and 22 are actually covered by A and B
schedule to the final decree in O.S.No. No.4186/2008. The
defendants No.21 and 22 have not only obtained katha but also
paying property tax in their name. Subsequently the defendants
No.21 and 22 sold away the said property so many persons
namely K.S.Nagaveni, Karthik Rao, H.Nagaraj, N.Mahadevaiah,
H.B.Nandini, A.M.Kumar, S.B.Nagaraju, K.H.Shoba, S.Vinutha,
Smt.Sumangali R Naik, S.H.Manjunath, M.Madhaya,
M.Rangaswami, K.Savithri, Vitalrao and Muragesh in bit by bit by
way of different sale deeds by giving separate serial numbers.
The various purchasers have obtained the khatha in their
respective names from BBMP and they are exercising their
25 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
ownership right and they are in peaceful possession and
enjoyment of their respective properties.
19. Defendants 21 and 22 have further submitted that
the suit schedule property is located within the schedule
boundaries and extent of area measuring East to West: 240 ft.
and North to South: 80ft. which is described under heading
schedule item No.1 to the Sale Deed dated.22.7.2011 executed in
favour of defendants 1 and 2. It is the defendants 21 and 22
who are the joint owners having possession over the suit
schedule property. As per final decree passed in
O.S.No.4186/2008, defendants 2 to 15 i.e., the vendors of
defendants 21 and 22 prevented the allottees of the sites from
defendant No.1- association from constructing houses from the
date of purchase. The allottees of the sites requested the
defendant No.1 either to give alternative sites or refund the
consideration amount paid by them with interest and the 1st
defendant has passed Resolution on 23.06.2010 to have the suit
26 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
bearing O.S.No.4186/2008 compromised with the plaintiffs
keeping in mind the interest of other allottees/purchasers of
the sites from defendant No.6 association. The plaintiffs have
to approach the defendant No.1 and work out his alleged rights
and get his grievances redressed from defendant No.1 by way of
filing altogether separate suit seeking appropriate reliefs.
According to plaintiff, the suit property is a vacant site and
possession follows title. Defendants 21 and 22 being purchasers
are in possession as true owners.
20. Defendants 21 and 22 further submitted that the
President and Secretary of the 1st defendant by name
B.M.Nataraj and C.Govindaraj respectively as a GPA holder of
the vendors namely defendants 16 to 20 sold the land in
Sy.No.3/4 through registered Sale Deed dated.18.2.2003 which
is the subject-matter of the Final decree in favour of defendant
No.1 itself and the said President and Secretary once again
representing the defendant No.1 as its President and Secretary
27 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
purchased the land under registered Sale Deed dated.18.2.2003.
Thus the President and Secretary at one go acted and
performed as the vendors and the purchasers at one and the
same point of time which is impermissible, unconscionable, illegal
and unknown to provisions of law. Thus the Sale Deed is vitiated.
Since the alleged Sale Deed dated.22.12.2003 executed in
favour of the plaintiff in respect of the suit schedule property
confers no valid right, title or interest on the plaintiff. The
plaintiff was/is not in possession of the same. When the vendor
of the plaintiff herein i.e., defendant No.1 itself had no title to
execute the Sale Deed dated.22.12.2003, then the contentions
of the plaintiff he hold the title and in possession of the suit
property does not and cannot arise. The title of the plaintiffs in
O.S.No.4186/2008 in respect of the suit lands in Sy.No.3/4 have
not been conveyed transferred and alienated under the alleged
Sale Deed executed by defendant No.1. The said Sale Deed
executed by defendant No.1 in favour of plaintiff does not bind
28 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
the defendants 21 and 22. Therefore, the defendants 21 and 22
have prayed to dismiss the suit by imposing exemplory costs.
21. Subsequent to amendment of the plaint, defendants
21 and 22 have filed additional written statement thereby
denied the facts pleaded by way of amendment in the plaint and
prayed to ignore, overlook and reject the amendment sought in
the plaint and dismiss the suit.
22. Meanwhile, as per order dated 30.05.2015 the
defendant No.23 was impleaded. The defendant No.23 has filed
separate written statement and denied all averments and
allegations made in the plaint as false and vexatious. In turn it is
submitted that after final decree registered in the office of
the Sub-Registrar in respect of 38,000 Sq.ft in Sy.No.3/4 of
Gidadakonenahalli village, all the Revenue Records have been
transferred in the name of defendants 2 to 15 who have sold the
property in favour of defendants 21 and 22 for a valuable
consideration by executing registered Sale Deed
29 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
dated.27.8.2011. Thereafter, the defendants 21 and 22 formed
a residential sites by giving numbers to the said sites formed by
them and site bearing No.13 measuring East to West: 30 ft. and
North to South: 40 ft. sold in favour of Smt.K.Savithri d/o.
Sri.P.S.Chandrashekar. The said K.Savithri was sold the said site
in favour of defendant No.23 for valuable consideration under
registered Sale Deed dated.29.5.2013. Since then, defendant
No.23 is in peaceful possession and enjoyment of the said site
and also he has put up 1½ square shed in the said property for
his personal use and he has also taken the electricity connection
to that shed. There is no cause of action to file the suit. The
plaintiff has not paid the requisite court fee. Therefore, the
defendant No.23 has also prayed to dismiss the suit with
exemplory costs.
30 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
23. On the basis of the pleadings the following
similar/common issues have been formulated in each of the
clubbed suits:-
ISSUES
1. Does the plaintiff prove that, he is
the absolute owner of the plaint
schedule property as contended in
the plaint?
2. Does the plaintiff prove that, he was
in possession of the plaint schedule
property as on the date of filing of
the suit?
3. Does the plaintiff prove that,
defendants are interfering in his
possession over the plaint schedule
property?
4. Does the plaintiff prove that the
defendants are making an attempt to
alienate the plaint schedule property,
so he is entitled for permanent
injunction as prayed in the plaint?
5. Does the plaintiff prove that, the
Judgment & Decree passed in
O.S.No.4186/2008 by the City Civil
Court, Bengaluru on 17.03.2011 is null
and void and not binding on the plaint?
6. Does the plaintiff prove that, suit is
31 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
properly valued and court fee paid on
the same is sufficient?
7. Does the plaintiff prove that, suit is
in time?
8. Does the defendant No.1 prove that,
suit is bad for non-joinder of
necessary parties?
9. Does the defendant No.21 and 22
prove that, they are the bonafide
purchasers of the suit schedule
property for valid consideration?
10. Does the defendant No.21 and 22
prove that, they disposed off their
properties to their purchasers as
contended in para-19 of their written
statement?
11. What order or decree
24. It is relevant to note here that at the stage of the
evidence on 4.11.2015 with the consent of the counsel for both
the parties, the connected O.S.No. 5599/2011, 5600/11,
5601/2011 and 5623/2011 have been clubbed with earlier suit in
O.S.No.5597/2011 for common trial and disposal by common
Judgment for the sake of convenience and in order to avoid
32 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
conflict in decisions in respect of the similar subject-matter
against the defendants.
25. It is relevant to note here that after framing of the
issues, the plaintiff in O.S.No.5597/2011 to 5601/2011 and
5623/2011 were got examined as P.W.1 and got marked
documents from Ex.P1 to Ex.P20, Ex.P1 to Ex.P8, Ex.P1 to Ex.P6,
Ex.P1 to Ex.P8 and Ex.P1 to Ex.P6 respectively. Subsequently,
since the defendants in all these suits are common as per order
dated.4.11.2015, O.S.No.5598/2011 to O.S.No. 5601/2011 and
O.S.No.5623/2011 have been clubbed in O.S.No.5597/2011 for
common trial and disposal by common Judgment. Accordingly the
defendants 22 and 23 were examined as D.W.1 and D.W.2 and
got marked Ex.D1 to Ex.D3 and Ex.D4 to Ex.D18.
26. My findings on the aforesaid said issues are as
under:-
Issue No.1: In the Affirmative
Issue No.2: In the Affirmative
Issue No.3: In the Affirmative
33 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
Issue No.4: In the Affirmative
Issue No.5: In the Affirmative
Issue No.6: In the Affirmative
Issue No.7: In the Affirmative
Issue No.8: In the Negative
Issue No.9: In the Negative
Issue No.10: In the Negative
Issue No.11: As per final order
for the following:-
/REASONS/
27. Issues No.1 to 5:- Since these issues are interlinked
with each other, in order to avoid repetition of discussions, they
are taken up together for consideration.
28. It is an admitted fact that each of the plaintiffs in
the aforesaid suits is the member of the 1st defendant
association. The respective plaintiffs have filed separate suits
in O.S.No.5597/2011 to O.S.No.5601/2011 and
O.S.No.5623/2011 for the relief of declaration that the
Judgment & Decree dated.17.3.2011 passed in O.S.No.4186/2008
is null and void, ab-initio and not binding on the plaintiff and
34 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
consequential relief of permanent injunction restraining the
defendants or anybody claiming through them from alienating
and from dispossessing the plaintiff from the suit schedule sites
bearing No.2291, 2292, 2279, 2294, 2293 and 2303-A
respectively in Karnataka State Governemnt 'D' Group Employees
Association Layout, Srigandhadakaval, Sunkadakatte, Bengaluru
North Taluk formed in Sy.No.3/4 in Gidadakonenahalli,
Yeshwanthpura Hobli, measuring East to West: 30 ft. and North
to South: 40 ft. within the boundaries as mentioned in the
schedule annexed to the respective plaint.
29. Each of the plaintiffs is relying on oral and
documentary evidence placed on record particularly, in
O.S.No.5597/2011 in support of their claim. P.W.1 has
reiterated the averments made in the plaint in the course of
his/her examination-in-chief. It is evident from the cross-
examination of P.W.1 by the counsel for defendants 2 to 15 that
the plaintiff is unaware of the fact that the land Sy.No.3/4 of
35 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
Gidadakonenahalli is the ancestral property of defendants 2 to
15 and the suit in O.S.No.4186/2008 filed by the said
defendants for partition, but P.W.1 later came to know that
defendants 2 to 15 have obtained decree from the court. In the
said suit and under the decree, defendant No.1 - association has
relinquished the lands to the extent of 40,000 Sq.ft., in
Sy.No.3/4. According to P.W.1, the plaintiff filed the suit as the
defendants made an attempt to trespass over their site stating
that under the compromise decree, they aquired their title over
the same. P.W.1 does not know the fact that after obtaining
khatha, defendants 2 to 15 have sold their land in favour of
defendants 21 and 22. It is also denied that defendants 21 and
22 are in possession of the purchased land, but P.W.1 heard that
defendants 2 to 15 have sold the suit property in favour of
defendants 21 and 22 in the year 2011.
30. It reflects from the further cross-examination of
P.W.1 by the defendants 21 and 22 that the plaintiff has not
36 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
verified any records pertaining to the suit site since the
plaintiff purchased the site from the defendant No.1 society
under the impression that the society may have scrutinized all
its documents. The defendant No.1 acquired the land through
Land Acquisition Officer and got it converted to non-agricultural
purpose and then allotted the site in favour of the plaintiff in
the year 2003. As deposed by P.W.1, the Govt. has acquired land
Sy.No.3/4 in the year 2002 and conversion order was passed by
Deputy Commissioner in the year 2003. The plaintiff has not
taken electricity and water supply connection to the house put up
over the site purchased by the plaintiff. According to P.W.1, he
has not put up any construction and P.W.1 has not only denied the
Sale Deed executed by defendants 2 to 15 in favour of
defendants 21 and 22, but also transfers of khatha in the name
of defendants 21 and 22.
31. P.W.1 has admitted in the course of cross-
examination by the Advocate for defendant No.1 that on
37 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
22.12.2003, defendant No.1 Sangha has executed a registered
Sale Deed in respect of the site allotted to the plaintiff. There
are electrical poles in his lane, but there are no any electric
wires to the said poles. P.W.1 does not know about other 59
persons had filed their impleading applications in the said suit
and those applications were dismissed. None of the plaintiffs in
the aforesaid suits had obtained any decree from the court
about their title to the suit schedule property earlier to the
instant suit as the plaintiff is holding better title over the suit
property. P.W.1 does not know whether the khatha of the
property mentioned in the compromise petition is transferred in
the name of Ashok Kumar and others after compromise in
O.S.No.4186/2008. The plaintiff has not impleaded the
subsequent purchasers as parties to the suit as the plaintiff is
not aware of their names.
32. It has come from further cross-examination of P.W.1
by the counsel for the defendant No.23 that though P.W.1
38 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
does not know Survey Number of lands purchased by
defendants 16 to 20, yet admitted that 1st defendant had
purchased the lands measuring 6 Acre 9 Guntas directly from
the farmers i.e., defendant Nos.16 to 20. P.W.1 does not
know whether the said suit came to be compromised in terms of
resolution passed by the 1st defendant association and the
defendants 2 to 15 sold the property to the defendants 21 and
22 and then the defendant No.23 purchased the property under
Sale Deed from defendants 21 and 22. The khatha in respect of
the suit property is not transferred in the name of plaintiff but
the plaintiff is paying revenue. Besides, the P.W.1 has not only
affirmed his physical possession over the suit property, but also
denied that the purchasers are in possession of the respective
sites and the plaintiff was not in possession of the suit property
at any point of time and filed false suit without any cause of
action after expiry period.
39 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
33. It is pertinent to note here that after closure of
evidence of both sides, P.W.1 was further got examined with the
permission of the court on 16.4.2016 and got marked Ex.P9 to
Ex.P20. Nothing worth has been elicited from the further
cross-examination of P.W.1 so far the said documents within the
knowledge of the defendants 1 to 20 is concerned. None of the
plaintiffs has issued notice to 1st defendant after coming to
know about handing over 38,000 areas under compromise in
favour of defendant No.2 to 15, but they have filed the present
suit challenging the compromise decree passed in the earlier suit
on the joint petition filed by the defendants 1 to 20.
34. As noted supra, the defendant No.1 and defendants
2 to 15 have not adduced any other evidence except cross-
examining P.W.1. Defendants 21 to 23 in these suits are relying
on oral and documentary evidence adduced through D.W.1 and
D.W.2, who have reiterated the averments made in their
respective written statements in the course of their
40 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
examination-in-chief by way of an affidavit. It is elicited from
the cross-examination of D.W.1 by defendant No.23 that they
are defending their right under defendants 2 to 15 and asserting
their ownership and physical possession over the suit site under
the alleged compromise decree passed in O.S.No.4186/2008.
The suggestions put to D.W.1 by Advocate for defendant No.23
indicates collusion among the contesting defendants including
the subsequent purchasers in respect of the suit site.
35. It is established from the cross-examination of
D.W.1 by the counsel for the plaintiff that D.W.1 does not know
the facts of the case filed by the plaintiff and transactions of
1st defendant association with the plaintiff as well as defendants
2 to 20 regarding property in dispute. D.W.1 does not know
that the 1st defendant had purchased land in Sy.No.3/3/,
3/4, 18/15 and other Survey Number from the defendants
2 to 20 with the permission of the Government in the year
2003 totally measuring 6 Acres 9 Guntas from defendants 16
41 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
to 20. However it is admitted that the defendant No.1 had
formed layout for formation of sites for allotting the same to
its members. According to D.W.1, defendant No. 21 and 22 have
purchased the property from defendant No.2 and his brothers,
but he has shown his ignorance about the fact that the 1st
defendant had formed layout in the decreetal property
measuring 19200 Sq.ft. and 16,800 Sq. ft. and sold the sites to
its members in the year 2003 itself and their vendors had no
rights to execute the Sale Deed in respect of the decreetal
property to them as on the date of execution of the Sale Deed.
36. D.W.1 is uncertain about the documents pertaining to
the properties purchased by them and decreetal property as well
as boundaries of property measuring 19200 and 16900 Sq.ft.
purchased by them. Even it is not known to D.W.1 whether the
plaintiff purchased agricultural land or non-agricultural through
the Sale Deed dated.22.7.2011. D.W.1 has clearly and
unequivocally admitted in her cross-examination at para-9
42 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
that the defendants 21 and 22 were not in possession as on
the date of suit. It is relevant to note here that immediately
after admission of specific suggestion regarding possession,
P.W.1 had stated that she does not know the Kannada language
and asked the counsel to put cross-examination to her in Hindu
language. As observed in the deposition, D.W.1 has not only
taken, oath in Kannada language by reading Kannada version in
the witness box but also replied to the specific suggestion put
to her by the counsel for the plaintiff from the beginning. Even
then, D.W.1 after thought either to overcome her admission or
to suit her purpose has admittedly made such statement inspite
of knowing Kannada language to read and write. It is further
elicited from the mouth of D.W.1 that she has no personal
knowledge about the Sale Deed in respect of the said property
personally, but the said property was under the ownership of
defendant No.2 and others as on the date of purchasing the
same. D.W.1 does not know the order passed in connected six
43 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
suits pending against them and order of temporary injunction
granted in the said suit in respect of the schedule property.
According to D.W.1, she did not know the location of
property purchased by her as on the date of execution of
the Sale Deed and actual sites formed in an area measuring
19200 and 16800 purchased by them. D.W.1 has denied that
the 1st defendant had formed layout and sold sites to plaintiff
and other purchasers under the Sale Deed and the purchasers
are in possession of respective sites formed in the said area
alleged to have been purchased by them under registered Sale
Deed.
37. D.W.2 has clearly admitted during the course of
cross-examination that 1st defendant formed layout in Sy.Nos.3,
3/3 and 3/4, and other Survey Numbers. There is no reference
of site No.30 in final decree and No Objection Certificate issued
by the 1st defendant. D.W.2 does not know the Government had
acquired land in Sy.No.3/3,3/4 and allotted to 1st defendant
44 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
association and 1st defendant has already allotted site No.13 as
claimed by defendant- 23 as site No.2291 in favour of plaintiff
and also issued possession Certificate. It is also admitted that
the final decree produced by D.W.2 is pertaining to property
measuring 38000 Sq.ft and the present suit is filed challenging
the final decree passed to that extent. According to D.W.2,
defendants 2 to 15 are owners of the land, but D.W.2 does
not know defendants 21 and 22 had obtained permission from
the concerned authorities for formation of residential sites.
There are 32 sites formed in 38,000 Sq.ft area. The 1st
defendant has formed road about 20.ft. x 30 ft. The land
owners had not left road in that area as deposed by D.W.2.
38. It is evident from further cross-examination of
D.W.2 that site No.14 of Jayashree is bounded by West site No.
13, by North: road, East site No.12 of Madhu and brothers and
South by site No.5. The vendors of D.W.2 have not given plan
pertaining to site No.13 to him. D.W.2 has denied that he has
45 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
obtained khatha Certificate from BBMP and power connection
from BESCOM on the basis of created document by misleading
the concerned authorities and claiming suit property falsely
without having any sort of right. It is also denied that D.W.2
has got executed Sale Deed in respect of suit site knowing the
fact that the plaintiff has purchased the same and obtained Sale
Deed.
39. On the other hand, it is proved from the
documentary evidence adduced by both the parties that the land
Sy.No.3/4 of Gidadakonenahally village was earlier owned by
defendants 16 to 20. Defendants 2 to 15 are the children of the
defendants 16 to 20. It is an admitted fact that defendants
No.16 to 20 had executed GPA in favour of defendant No.1
association represented by its President by name B.M.Nagaraj,
Secretary by name C. Govindaraju thereby authorised them to
deal with the schedule lands bearing No.3/2, 3/3 and 3/4
measuring 1 Acre 3 Guntas, 2 Acre 31 Guntas and 2 Acre 15
46 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
Guntas respectively. The President and Secretary of the 1st
defendant association had obtained permission to purchase not
only the said land in Sy.Nos.3/2, 3/3 and 3/4, but also other
agricultural lands totally measuring 53 Acres 33.5 Guntas from
the Under Secretary, Revenue Department, Govt. of Karnataka
as per Notification No. PÀAE 93 J¯ïDgïJA 2002 ¨ÉAUÀ¼ÀÆgÀÄ
¢£ÁAPÀB 10£Éà r¸ÉA§gï, 2002 as per Ex.P9 subject to
conditions mentioned therein under the provisions of Karnataka
Land Reforms Act.
40. None of the parties has produced the GPA. However
Ex.D1 the certified copy of registered Sale Deed
dated.18.2.2003 goes to show that the said President and
Secretary of the 1st defendant have got executed registered
Sale Deed in respect of the said land as GPA holders of
defendant No.16 to 20 in favour of defendant No.1 Association
in dual capacity of vendor and vendee. Meanwhile, the 1st
47 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
defendant Association has got converted the said Sy.Nos.3/2,
3/3, 3/4, 8/15, 8/16 totally measuring 6 Acre 36 Guntas of
agricultural lands into non-agricultural purpose as per order
dated.25.10.2003 passed by the Deputy Commissioner, Bengaluru
District in No.ALL(N) S-R 92, 2003-04 as per Ex.P10.
41. The 1st defendant association had formed the layout
in the said Sy.Nos.2,3,4,4/1, 8,14,15,16,23/2, 4,24/3,
4,5,25/3(P), 30/1(P), 30/2(P), 31/1 of Srigandhadakaval,
Yeshwanthpura Hobli, Bengaluru North Taluk. After forming
sites in that layout allotted the site No.2291 to the plaintiff in
O.S.No.5597/2011 and site Nos.2292, 2279, 2294, 2293 and
2203/A to the plaintiff in aforesaid other suits as per Ex.P1 on
30.07.2003. Immediately after obtaining the conversion order
dated.25.10.2003 at Ex.P10, the President and Secretary of the
1st defendant association have duly executed registered Sale
Deed in respect of the said sites to the respective plaintiff as
per Ex.P2 on 28.11.2003. Besides, the President of the 1st
48 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
defendant association has issued No Objection Certificate to
the said plaintiff thereby confirmed the allotment of respective
sites formed in the layout called Karnataka State Government 'D'
Group Employees Association, Srigandhadakaval, Sunkadakatte,
Bengaluru North Taluk and also executed the registered Sale
Deed in their favour. Besides, the 1st defendant has permitted
the plaintiff to act as per the law for which, they have no
objections whatsoever may be on 6.2.2004 as per Ex.P3. The
plaintiff in O.S.No.5600/2011 has paid the tax of his site
bearing No.2294 as per Ex.P4 and Ex.P5 at the time of filing the
suit.
42. It is a fact that the plaintiffs in O.S.No.4186/2008
i.e., defendants 2 to 15 herein have filed that suit for partition
and injunction on 27.6.2008 against the defendants 1 to 6 i.e.,
defendants 16 to 20 and defendant No.1 association herein
respectively as it is evident from Ex.P6- Order sheet. It is
clearly pleaded in Ex.P11 - plaint that their grand-father
49 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
Thamnnannappa owned land bearing Sy.No.3/3, 3/4, and other
lands as described in the schedule annexed to the plaint. The
defendants 16 to 20 sold the suit schedule properties by way of
3 registered Sale Deeds dated.18.2.2003 and 20.03.2003
respectively in favour of 1st defendant association without having
absolute right over the ancestral properties by overlooking the
plaintiffs and their status as coparceners of the joint family
having legitimate share in the joint family properties. The
plaintiffs in that suit were not parties to the said Sale Deeds
executed by defendants 1 to 5 in favour of defendant No.6 in
that suit. The plaintiffs never authroised defendants 1 to 5 to
sell the suit properties in favour of 6th defendant and the said
Sale Deeds are not binding on their shares and they are entitled
for partition and separate possession of their share over the
suit schedule properties. In the said suit, defendant No.6 i.e.,
1st defendant association herein has contested the claim of the
plaintiffs in that suit by filing written statement as per Ex.P12.
50 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
Wherein the defendant No.1 association has clearly pleaded that
the defendant association has purchased the suit land from the
defendants 1 to 5 for formation of house sites to its members
during 1993 through sale Agreement and GPA and the 6th
defendant has paid the consideration of the schedule land to the
defendants 1 to 5 periodically who have promised the 6th
defendant to execute the Sale Deed in its favour whenever the
6th defendant feel to take the Sale Deed. Accordingly, the
defendants No.1 to 5 have executed the sale deed as well as
confirmation deeds in favour of 6th defendant as stated above.
The 1st defendant herein has not only affirmed its absolute
right, but also allotment of various sites formed in the layout to
its members including the plaintiffs herein and the allottees of
the 1st defendant were/are in possession of the sites formed in
that layout by the defendant association.
43. It is crystal clear from the order sheet in
O.S.No.4186/2008 at Ex.P6 that the members of the defendant
51 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
No.6 Association had filed I.A.6,7,9 to 11 under Or.I, R.10 (1)
r/w. Sec.151 CPC for impleading them as defendants as per
Ex.P.13 to 16. Whereas, the said Interim Application were
dismissed, by order dated.15.2.2010 only, on the ground that the
plaintiffs in that suit were claiming right through their father
defendant No.3 and challenged the Sale Deed executed by their
father along with defendants 1, 2, 4 and 5 in favour of
defendant No.6 society.
44. It is very much relevant to note here that though 6th
defendant society had contested the suit of the plaintiffs in
O.S.No.4186/2008 in pursuance to the GPA, Agreement of sale
executed by defendants 1 to 5 in respect of the schedule
property, yet the plaintiffs and defendants in
O.S.No.4186/2008 had entered into compromise. In pursuance
to the joint compromise petition under Or.XXIII Rule 3 r/w.
Sec.15 CPC at Ex.P7 that suit came to be decreed in terms of
compromise petition dated.17.3.2011 and also directed the office
52 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
to draw necessary decree in terms of the compromise petition.
Meanwhile, on 18.6.2011, Advocate for plaintiff had filed
application U/s.152 of CPC. Accordingly the order
dated.25.6.2011 was passed to the effect that the compromise
decree dated.17.3.2011 is treated as final decree. Thereafter
the final decree came to be passed and registered before the
concerned Sub-Registrar as per Ex.P8/ Ex.D. 2.
45. It reveals from the compromise petition and
compromise decree that the plaintiffs have prevented the
purchaser/allottees from defendant No.6 Association from
constructing the houses from the date of their purchase and the
purchasers have brought pressure on the defendant No.6
Association stating that they do want the sites allotted to them
and requested either to give alternate site or to refund the
consideration paid with the admissible interest. In view of the
same, defendant no.6 has passed the Resolution on 23.6.2010 to
have the suit be compromised with the plaintiffs, keeping in
53 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
mind the interest of other allottees/purchasers of the sties in
the layout. Neither of the parties has produced the alleged
resolution dated.23.6.2010 to take into consideration.
46. On the other hand, as per the terms of the
compromise, the defendant No.6 association has agreed to give
38,000 Sq.ft of land in favour of the plaintiffs as their share to
which they are entitled by way of partition in Block-1 and Block-
2 in Sy.No.3/4 of Gidadakonenahalli village i.e., in the item No.2
of the suit schedule property for which the plaintiffs and
defendant No.2 to 5 have also agreed for 38,000 Sq.ft of land in
Sy.No.3/4 given to the plaintiffs towards their share by virtue
of the compromise petition in Block-1 and 2 coming within the
schedule item No.2 which is marked in Green colour and
delineated by alphabets as ABCDEFG in the layout map annexed
to the compromise petition described as schedule -A and B
properties to the compromise petition. The plaintiffs have
agreed to take A and B schedule properties to the compromise
54 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
petition towards their share and give up their right, title or
interest in the remaining suit schedule properties except to an
extent of 38,000 Sq.ft in suit schedule item No.2 in favour of
defendant No.6 association. Nothing is recited in the
compromise petition regarding share of 1st defendant in that
suit is concerned. Infact, that suit against defendant No.1
was not pressed by the plaintiffs. This is also one of the
important aspects to be taken into consideration. The map
annexed to the compromise petition and final decree is nothing
but layout plan prepared by the 1st defendant association herein.
It is also an admitted fact that the sites allotted and sold to the
plaintiff in the aforesaid suits by the 1st defendant association
are located in the area to an extent of 38,000 Sq.ft alleged to
have been allotted to the defendants 2 to 15 through
compromise marked by letters ABCD i.e., block-1 measuring 240
ft. x 80 ft. as equivalent to 19200 and Block-2 shown by letters
DEFG measuring 80 x 240 Sq.ft equivalent to 18400 in total
55 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
37600 Sq.ft alleged to have been allotted to the share of
plaintiffs subsequent to execution of Sale Deed in favour of the
plaintiff herein.
47. The instant suits were filed by the respective
plaintiff before this court on 2.8.2011 and sought for distinct
temporary injunction orders by filing I.As 1 to 5, as the
defendants 2 to 15, on the strength of compromise decree were
pressurizing the plaintiff to vacate and handover possession to
them, challenging the compromise decree dated.17.3.2011 passed
in O.S.No.4186/2008 as null and void and not binding on the
property and consequential relief of permanent injunction. This
court passed prohibitory orders on I.A.3 and issued emergent
notice and suit summons to defendants.
48. Defendants 2 to 15 have been asserting right over
the suit site in view of allotment of an area measuring 38,000
Sq.ft under final decree at Ex.D2 passed in O.S.No.4186/2008.
The defendants 2 to 15 sold said item Nos. 1 and 2 properties
56 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
shown by letters ABCD and DEFG in favour of defendants 21 and
22 through registered Sale Deed dated.22.7.2011 just 15 days
prior to filing of the instant suit. Subsequently the defendants
21 and 22 executed Sale Deed dated.11.1.2012 in respect of
alleged site No.13 formed in Sy.No.3/4 as described in the
schedule to one Smt.K.Savithri through the registered Sale
Deed during the pendency of the suit as per Ex.D4. Meanwhile,
the said Smt.K.Savithri has sold out the said site No.13 in favour
of defendant No.23 under registered Sale Deed
dated.29.05.2013 at Ex.D5. The said sale transaction is
reflecting in Encumbrance Certificate at Ex.D6. The BBMP has
issued Form-B Register to the said K.Savithri and subsequently
to the defendant No.23 as per Ex.D7. Ex.D8 receipt is issued by
the BBMP to defendant No.23 showing address at No.13,
G.K.Halli. The property tax receipt at Ex.D9 in the name of
defendant No.23 discloses Sy.No. No.3/4 and property address
at No.13, G.K.Halli, Bengaluru. Ex.D10 to Ex.D14 disclose that
57 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
the defendant No.23 has applied for electricity connection on
22.4.2015, after two years of execution of alleged Sale Deed
Infact, defendant No.23 himself filed I.A. under Or.I, Rule 10
CPC through his Advocate in O.S.No.5597/2011 on 10.4.2015.
This fact itself goes to show that Ex.D10 to Ex.D14 was being
obtained after coming to know about the instant dispute
between the plaintiff and erstwhile owners. As such, no
evidentiary value is attached to the various documents produced
by the defendants so far the suit site is concerned. The digital
photographs at Ex.D15 to Ex.D17 reflect that there is a small
shed roofed with asbestos sheet at the corner of the open site
and the defendant No.23 was present at the time of obtaining
those photographs in the suit schedule site. Except the self
serving photographs, the registered final decree and Sale Deeds,
nothing is placed on record by the defendants to show that
inspite of putting the members of the defendant No.1 society in
58 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
physical possession of the respective sites, how subsequent
purchaser was put in physical possession thereof.
49. It is proved from the evidence on record that the
land Sy.No.3/2, 3/3 and3/4 are the ancestral properties of
defendants 2 to 20. The defendants 16 to 20 have executed
GPA to the 1st defendant as represented by its President and
Secretary and on the basis of GPA, the said President and
Secretary of the 1st defendant association have got executed
the Sale Deed in favour of 1st defendant association, after
obtaining necessary permission from the concerned department
of the Government, thereafter got converted the agricultural
lands into non-agricultural purpose in the year 2003. Meanwhile,
formed the layout and created sites thereon as per the layout
plan. The 1st defendant has allotted sites and issued possession
Certificate to its members including the plaintiff herein.
Subsequently executed the Sale Deed in favour of plaintiff in
respect of the suit schedule sites in the year 2003 itself.
59 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
50. As noted supra, none of the parties has produced
either GPA or Agreement of sale. The defendants 2 to 15 kept
quite till 2008 without asserting their any sort of right over the
agricultural lands purchased by the 1st defendant association,
but all of a sudden, the defendants 2 to 15 had filed
O.S.No.4186/2008 against the defendants 1 to 6 i.e., defendants
16 to 20 and defendant No.1 herein for partition challenging the
Sale Deeds executed by defendants 1 to 5 who did not contest
that suit by filing their written statement. Whereas the
defendant No.6 had contested the suit on the ground that
the agricultural lands purchased by the association with the
permission of the Government under the Land Reforms Act
got converted the agricultural land into non-agricultural
purpose and formed layout, allotted the sites along with
possession Certificate to its members and also sold the right,
title or interest of 1st defendant association over the
respective sites in favour of respective members including the
60 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
plaintiff here in these suits. The plaintiff and other members
of the defendant No.1 association were not made as necessary or
proper parties to the said suit. As noted supra, some of the
members made attempt to implead themselves as defendants in
that suit, but those applications were dismissed. Thereafter, the
plaintiffs and defendants 1 to 6 in that suit got compromised
decree, thereby the 1st defendant was said to have given up in
total 38,000 Sq.ft area described as ABCD and DEFG as shown
in the layout plan prepared by the 1st defendant association and
enclosed to the alleged final decree passed in
O.S.No.4186/2008. It is an admitted fact that, the sites as
claimed by the plaintiffs in these suits are situated in the said
area of Block-1 and Block-2. None of the plaintiff has either
made as a party to the earlier suit or made attempt to get
impleaded themselves in that suit between the defendants 1 to
20. The Sale Deeds executed by defendant No.1 Association in
favour of its members including the plaintiff herein were not
61 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
challenged by the defendants 2 to 15 in the earlier suit. Infact,
the defendants 2 to 20 have duly admitted the material fact
that after sale of the agricultural lands, the 1st defendant
association got converted the said lands for non-agricultural
purpose, formed layout and sold the sites to its members
including the plaintiff herein. It is also a fact that the
defendants 2 to 15 and 17 to 20 have entered into compromise
with the 1st defendant thereby given up entire area to 1st
defendant association except 38,000 area which has been given
to defendants 2 to 15 towards their share. Defendants 2 to 15
not pressed the earlier suit against the defendant -16 in this
suit. Neither the defendant No.16 nor defendants 17 to 20 did
care to contest the present suit of the plaintiff filed against
them in respect of the suit site. Nothing has been stated in the
compromise petition regarding Sale Deeds executed by
defendants 16 to 20 in favour of defendant No.1 so as to take
into consideration. The said O.S.No.4186/2008 was filed
62 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
subsequent to Sale Deeds executed in favour of members of the
association in respect of sites formed in converted non-
agricultural lands. Even then, the defendants 2 to 15 have sued
the defendants in the earlier suit as agricultural lands. Nothing
is whispered in respect of all other items of the schedule
property except item No.2 pertaining to Sy.No.3/4 in the
compromise. Besides, the terms of compromise themselves
reflect that the said compromise was made among defendants 2
to 15 and defendants 17 to 20 with an intention to give up
38,000 Sq.ft. of area in favour of defendants 2 to 15 without
bothering about the right, title or interest of other co-
parceners or the members of the 1st defendant association.
Infact, the said compromise decree was behind the back and
without the knowledge of not only defendant No.1 in that suit,
but also the concerned members of the 1st defendant
association. It is merely mentioned in the compromise petition
that defendants 2 to 15 were preventing the
63 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
purchasers/allottees of the sites from defendant No.1
association from constructing the house from the date of their
purchase and therefore, the purchasers of sites have brought
pressure of the defendant No.1 association stating that they do
not want the sites allotted to them and also requested the
defendant No.1 association either to give alternative site or
refund the consideration paid by them with admissible interest.
In view of the same, the defendant had passed the resolution
dated 23.6.2010 to have the suit compromised with the
plaintiffs keeping in mind the interest of other
allottees/purchasers of the sites in the layout. Except the self
serving compromise petition and alleged final decree passed by
the court, nothing is placed on record to show that the
defendant No.1 has passed such resolution in order to safeguard
the right, title and interest of its members and any steps were
being taken by the 1st defendant subsequent to final decree in
question passed by the court. Looking to the conduct of the
64 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
defendants 1 to 20 towards the subject-matter of the suit,
the possibility of collusion among them in getting such
compromise decree behind the back of the plaintiff and
others having interest over the property cannot ruled out.
When the 1st defendant had sold the sites formed in the layout
through the registered Sale Deed for valuable consideration in
favour of its members including the plaintiff and then, neither
the President, nor Secretary of the 1st defendant Association
had any sort of right to give up 38,000 Sq.ft. area in favour of
defendants 2 to 15 by way of compromise behind the back of the
plaintiff herein. As such, compromise decree cannot bind the
plaintiff in respect of suit site.
51. The counsel for the plaintiff has placed his reliance
on various decisions in support of his arguments. In AIR 1983
SC 1139, Banwari Lal Vs. Smt.Chando Devi (thourgh L.R.) and Anr.
the Hon'ble Supreme Court of India has held that:
65 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
"When the amending Act introduced a
proviso along with an explanation to Rule 3
of O.23 saying that where it is alleged by
one party and denied by other that an
adjustment or satisfaction has been
arrived at, "the Court shall decide the
question", the Court before which a
petition of compromise is field and which
has recorded such compounded monthly,
has to decide the question whether an
adjustment or satisfaction had been
arrived at on basis of any lawful
Agreement. To make the enquiry in
respect of validity of the Agreement or
the compromise more comprehensive, the
explanation to the proviso says that an
Agreement or compromise "which is void or
voidable under the Indian Contract Act...."
Shall not be deemed to be lawful within
the meaning of the said Rule. In view of
the proviso read with the explanation, a
Court which had entertained the petition
of compromise has to examine whether
the compromise was void or voidable under
the Indian Contract Act. Even R.1(m) of
O.43 has been deleted under which an
appeal was maintainable against an order
recording a compounded monthly. As
such, a party challenging a compromise
can file a petition under proviso to R.3 of
O.23 or an appeal U/s.96(1) of the Code,
in which he can now question the validity
of the compromise in view of R.1A of
O.43 of the Code."
66 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
It is further laid down that:
"If the Agreement or the compromise
itself is fraudulent then it shall be
deemed to be void within the meaning of
the explanation to the proviso to R.3 and
as such not lawful."
52. In ILR 1994 KAR 1264 Aswatha Reddy Vs. Anjanappa
wherein out own Hon'ble High Court with reference to various
rulings has laid down that:
"The Supreme Court has highlighted the
duty of the Court in recording the
compromise under Or.23 Rule 3 CPC and it
has laid down that the compromise should
not be recorded in a casual manner, but
Court must apply its juridical mind while
examining the terms of the settlement
before the suit is disposed of in terms of
the Agreement arrived at between the
parties. There is a responsibility cast on
the court to satisfy itself about the
lawfulness and genuineness of the
compromise as the compromise accepted
before the court will acquire the sanctity
of a Judicial Order."
51. In ILR 1992 KAR 119 C.R.Narasimha Murthy Vs.
K.Saroja it is observed in para-6 of the Judgment that:
67 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
"It is clear that no compromise can be
entered into by next friend or guardian
except with the leave of the Court which
has to be recorded expressly in the
proceedings. The provision also requires
an affidavit to be filed by the next friend
or the guardian making a statement to the
effect that the compromise is in the
interest of the minor. The provision also
further requires that when the minor is
represented by an Advocate a Certificate
by the Advocate to the effect that the
Agreement or compromise is for the
benefit of the minor, has to be filled. In
the present compromise petition neither
such an application for leave to enter into
compromise is sought for nor is a
Certificate by the Advocate filed.
Therefore, we have no other alternative
than to reject the compromise petition."
53. In 1995 (3) Civil LJ 780 Narayanana Vs. Rajamany the
Hon'ble Kerala High Court has held that:
"The word "injury" in the section is not
confined to physiological or psychological
harm to third persons. It includes harm
to the property also. In legal parlance
"injury" includes "any wrong or damages
done to another, either to his person or
rights or reputation or property". In the
context, the word "injury" in Section 23
can be understood as including that which
68 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
is harmful to the property right or
interest of a third party."
54. It is further laid down compromise decree is not a
decree which had sprouted from any adjudicatory exercise of
the court. It was, in reality, only an Agreement made
between two persons on which the imprimatur of the Court
was affixed. Such a decree cannot escape from scrutiny
when it is attacked by another party who is affected by it
on the ground that the Agreement itself was vitiated."
55. On the other hand, the counsel for the defendants 21
and 22 has placed his reliance on various decisions, in AIR 1954
SC 526 Moran Mar Basselios Catholicos and another V/s Most
Rev. Mar Poulose Athanasius and Others It is held;
"The plaintiff in ejectment suit must
succeed on the strength of his own title.
This can be done by adducing sufficient
evidence to discharge the onus that is on
him irrespective of whether the def has
proved his case or not. A mere
destruction of the defendants' title, in
69 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
the absence of establishment of his own
title carries the plaintiff nowhere."
56. In AIR 1965 Supreme Court 1506 in Brahma Nand
Puri V/s Neki Puri, since deceased represented by Mathra Puri
and another it is held that:
"In a suit for ejectment the plaintiff has
to succeed or fail on the title that he
establishes and if he cannot succeed on
the strength of his title his suit must fail
notwithstanding that the defendant in
possession has no title to the property."
57. In view of the ratio laid down in the aforesaid
decisions, the burden is upon the plaintiff to prove his/her claim
independently. The plaintiff cannot succeed either on the
weakness or failure on the part of defendants to establish their
defence so set up against the claim of the plaintiff made in
these suits. As discussed supra, after sale of the sites formed
in the layout of the 1st defendant association to its members,
the office bearers including the President and Secretary of the
70 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
1st defendant association had no right whatsoever over the sites
purchased by the plaintiffs in these suits and other members.
Infact, the plaintiffs and other members of the 1st
defendant were necessary and proper parties to the suit in
O.S.No.4186/2008. The defendants 2 to 15 being the
plaintiffs in that suit ought to have challenged not only the Sale
Deeds executed by defendants 1 to 5 in favour of defendant 6,
but also infavour of the purchasers/members of the 6th
defendant association. Plaintiffs No.2 to 5 son of defendant
No.3 in that suit were minors represented by their natural
guardian mother and entered into compromise through their
mother guardian but failed to comply with mandatory provisions
as laid down in the aforesaid decisions. Further, the plaintiffs
No.1 to 14 in the said suit i.e., defendants 2 to 15 herein
together sold the entire 38,000 Sq.ft area in favour of
defendants 21 and 22 through registered Sale Deed. The
natural guardian of defendants 3 to5 herein had not obtained
71 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
permission from the competent authority to sell the property
acquired by minors under alleged compromise final decree.
Looking from any angle, when the compromise decree itself is
void-ab-initio and not binding on the plaintiff in respect of the
sites purchased by them under registered Sale Deed and then
the defendants 2 to 15 could not have acquired any sort of right
over the said area. As such, the Sale Deed executed by
defendants 2 to 15 in favour of defendants 21 and 22 cannot
either extinguish right of plaintiffs or create any sort of right
in favour of defendants 21 and 22. Accordingly the subsequent
sale transactions either between defendants 21 and 22 infavour
of 23 or other purchasers as pleaded by defendants 21 and 22
are not binding on the plaintiff.
58. It can be gathered from the paper publication at
Ex.P20 that the Sale Deeds executed by 1st defendant in favour
of its members in respect of sites have been acted upon about 8
to 10 years prior to 12.12.2011. Due to illegal
72 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
interference/obstruction of defendants 2 to 15 being children
of defendants 16 to 20, the 1st defendant gave paper publication
to that effect in the interest of its members and for protecting
their rights over the sites sold to them under registered Sale
Deed. Besides, the sites purchased by the members of the 1st
defendant were still kept vacant as on 23.12.2014 i.e.,
subsequent to the alleged sale transactions took place between
defendants 21, 22 and 23. Looking to the facts and
circumstances of the case, when the members of the 1st
defendant were put in physical possession of the suit vacant
sites even prior to execution of Sale Deed by way of
possession Certificate and the same has been confirmed
through registered Sale Deed, in the absence of reliable
evidence, it cannot be said that the plaintiff in these suit
have been parted with possession of the suit site. There
are no recitals in the compromise petition regarding delivery of
physical possession to the defendants 2 to 15. It is relevant to
73 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
note here that infact; compromise was recorded on 12.3.2011
with the consent of both the parties. There is no specific order
to draw either preliminary or final decree in terms of
compromise petition. However, on the application under
Sec.152 of CPC at the instance of the plaintiffs only, the
office was directed to draw final decree as a compromise
decree dated. 17.3.2011 is treated as final decree. The
said order was unilaterally passed without hearing the other
side. Besides, I.A.12 to 14 as per Ex.17 to 19 were filed by some
of the members of the 1st defendant subsequent to disposal of
the suit by way of alleged compromise. Those applications were
also entertained and dismissed on merits.
59. The very conduct of not only the defendants 2 to 15,
but also defendants 21 to 23 itself is sufficient to hold that the
defendants are not only interfering in the possession of the
plaintiff in respect of the suit site, but also they were/are
making attempt to alienate plaint schedule property. Since the
74 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
plaintiff herein was not a party to O.S.No.4186/2008, the
plaintiff in these suits have perfected their right, title and
interest over the residential site as described in the suit
schedule as bonafide purchasers for valuable consideration. As
such, the compromise decree dated.17.03.2011 passed in
O.S.No.4186/2008 being null and void-ab-initio is not at all
binding on the plaintiff in respect of the suit schedule site.
Hence I answer Issue Nos. 1 to 5 in the Affirmative.
60. Issue No.6: The plaintiff has filed the suit
for declaration that the Judgment & Decree passed in
O.S.No.4186/2008 is null and void and not binding on the
plaintiff and consequential relief of permanent injunction. The
plaintiff has adopted the method for valuation U/s.38 of
Karnataka Court Fees & Suits Valuation Act for prayer (a) and
Sec.26(c) for prayer (b) and (c) and paid court fee of Rs.925/-.
The contesting defendants have merely disputed the valuation of
subject-matter as well as court fee paid thereon by the plaintiff
75 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
as not proper and sufficient. It is a fact that the plaintiff is not
a party to the compromise decree/final decree passed in the
earlier suit among the defendants 1 to 20. The plaintiff need
not sought for cancellation of the alleged decree. Looking to the
nature of reliefs claimed in respect of the residential site,
When the plaintiff has sought for declaration that the said final
decree is not binding on him/her, plaintiff need not invoke
Sec.38 of the Act and the plaintiff ought to have paid ad-aleram
court fee U/s.24(d) of the Karnataka Court Fees & Suits
Valuation Act on the valuation shown in the valuation slip. Hence
the valuation of the suit property made and court fee paid
thereon by the plaintiff is proper and sufficient. Hence I
answer Issue No.6 in the Affirmative.
61. Issue No.7:- The specific case of the plaintiff is
that, the suit site was allotted by the 1st defendant association
in the year 2003 and also issued possession Certificate on
20.09.2003. Thereafter, the defendant No.1 has executed Sale
76 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
Deed in respect of the said site dated.22.12.2003. Infact, No
Objection Certificate was issued by the 1st defendant on
29.3.2004. The suit in O.S.No.4186/2008 was got compromised
between defendants 2 to 15 and defendant No.1 as well as
defendants 17 to 20 on 17.3.2011. The plaintiff after coming to
know about such compromise final decree has approached this
court on 2.8.2011 within 4½ months from the date of alleged
compromise decree. As such, the suit of the plaintiff is well
within the stipulated period of limitation. Hence my finding on
Issue No.7 is in the Affirmative.
62. Issue Nos.8 to 10:- It is a fact that defendants
2 to 15, based on the void/unauthorised compromise decree,
without getting transfer of khata in the concerned
Revenue/BBMP records, in respect of the property allotted to
them under compromise have executed Sale Deed in favour of
defendants 21 and 22 on 22.7.2011 just 11 days prior to filing of
the suit as per Ex.D3. On 11.1.2012, the defendants 21 and 22
77 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
jointly executed Sale Deed in favour of one Smt.K.Savithri in
respect of site No.13. Absolutely, there is no record to show
that defendants 21 and 22 have got approved layout plan in
respect of an area measuring 38,000 Sq.ft and formed site
number as assigned in that Sale Deed Ex.D4. Thereafter the
said Smt.K.Savithri has executed Sale Deed in respect of the
said site in favour of defendant-23. The sale transaction among
defendants 21 to 23 and said Smt.K.Savithri are subsequent to
the filing of the instant suit. Defendants 21 and 22 have merely
pleaded in the written statement that, they sold away properties
in Sy.No.3/4 which was purchased by them under Sale Deed
dated.22.7.2011 to so many persons namely, K.S.Nagaveni and
others as shown in para-19 of the written statement and the suit
of the plaintiff is bad for non-joinder of the parties. In view of
my findings on Issue Nos.1, 2 and 5 the plaintiff is the absolute
owner and in lawful possession of the suit site and the
compromise decree dated.17.3.2011 got obtained by the
78 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
defendants 1 to 20 in O.S.No.4186/2008 is not binding on the
plaintiff. Neither the defendants 2 to 15 nor subsequent
purchasers has derived any sort of right over the suit site or
the alleged site No.12 or 13 as pointed out by the defendants 21
to 23. As such, the defendants 21 and 22 cannot become
bonafide purchasers of the suit schedule property for valid
consideration. Absolutely, the defendants 21 and 22 have no
right whatsoever over the suit site to dispose off the properties
to the said purchasers. Looking from any angle when the
defendants 2 to 15 could not have acquired any right over the
said area and then, the defendants 21 and 22 would not have
acquired any right or possession over the suit schedule vacant
site under the ownership of plaintiff. Hence the suit of the
plaintiff is not at all bad for non-joinder of necessary parties as
alleged by the defendants 21 and 22. Hence I answer Issue Nos.
8 to 10 in the Negative.
79 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11
63. Issue No.11:- In view of my findings on the issues
No.1 to 10 and the reasons stated therein, in the result, I
proceed to pass the following:-
ORDER
The suit of the plaintiff in O.S.No.5597/2011, 5599/2011, 5600/2011, 5601/2011 and 5623/2011 are decreed with costs as under:-
It is declared that the Judgment & Decree dated.17.03.2011 passed in O.S.No.4186/2008 by the Learned City Civil Judge is null and void-ab-initio and not binding on the plaintiff.
Consequently, permanent injunction is granted, thereby the defendants or anybody claiming under them are restrained from alienating or in any manner crating encumbrance or third party interest over the suit schedule property.
Further the defendants are restrained by way of permanent injunction from dispossessing or disturbing the peaceful possession of the plaintiff over the suit schedule property.80 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11 Draw up a decree accordingly.
Keep the original of this Judgment in O.S.No.5597/2011 and a copy thereof shall be kept in O.S.No.5599/2011, 5600/2011, 5601/2011 and O.S.No. 5623/2011.
(Dictated to the Judgment Writer, transcript thereof corrected and then pronounced by me, in open Court, on this the 25th day of April 2016.) (BHAIRAPPA SHIVALING NAIK) XII Addl. City Civil & Sessions Judge, Bangalore A N N E X U R E I. List of witnesses examined on behalf of:
(a) Plaintiff' side :
P.W.1 in Sri.E.Venkatarathnam O.S.No.5597/2011:
P.W.1 in Sri. B.K. Ashwath Narayana O.S.No.5599/2011:
P.W.1 in Sri. M.K. Siddagangaiah O.S.No.5600/2011 P.W.1 in Sri. M.K. Krishnegowda O.S.No.5601/2011 81 O.S.No.5597/11,5599/11, 5600/11,5601/11 and 5623/11 P.W.1 in Smt. P.A. Saraswathi O.S.No.5623/2011:
(b)Defendant's side :
D.W.1: in Smt.Mubeena Kouser O.S.No.5597/2011 D.W.2 in Sri.H.K.Krishnappa O.S.No.5597/2011 D.W.1: in D Group Employees O.S.No.5599/2011 Association and others D.W.1: in Smt.Mubeena Kouser O.S.No.5600/2011 D.W.1: in Smt.Mubeena Kouser O.S.No.5601/2011 D.W.1 in Smt.Mubeena Kouser O.S.No.5623/2011 II. List of documents exhibited on behalf of :
Plaintiff' side in O.S.No.5597/2011:
Ex.P1: Original possession Certificate
Ex.P2: Original registered Sale Deed
dated.28.11.2003
Ex.P3: No Objection Certificate issued
by defendant Sangha
dated.6.2.2004
Ex.P4 and Two tax paid receipts
Ex.P5:
82 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11 Ex.P6: Certified copy of order sheet pertains to O.S.No.4186/2008 Ex.P7: Certified copy of compromise petition filed in O.S.No.4186/2008 Ex.P8: Certified copy of decree passed in O.S.No.4186/2008 Ex.P9: Gazette Notification Ex.P10: Certified copy of conversion order dated.25.10.2003 Ex.P11-P18: Certified copy of plaint, written statement and five Interim Application u/Or.X(2) of CPC, entire order sheet is O.S.No.4186/2008 Ex.P19: Paper publication in Udayavani dated.12.12.2001 Ex.P20: Paper publication in Sanjevani dated.25.12.2014 Plaintiff' side in O.S.No.5599/2011:
Ex.P1: Original possession Certificate
Ex.P2: Original registered Sale Deed
dated.19.12.2003
Ex.P3: No Objection Certificate issued
by defendant Sangha
dated.6.2.2004
Ex.P4 and Two tax paid receipts
Ex.P5:
Ex.P6: Certified copy of order sheet
83 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11 pertains to O.S.No.4186/2008 Ex.P7: Certified copy of compromise petition filed in O.S.No.4186/2008 Ex.P8: Certified copy of decree passed in O.S.No.4186/2008 Plaintiff' side in O.S.No.5600/2011:
Ex.P1: Original possession Certificate
Ex.P2: Original registered Sale Deed
dated.22.12.2003
Ex.P3: No Objection Certificate issued
by defendant Sangha
dated.6.2.2004
Ex.P4: Certified copy of Order sheet
pertains to O.S.No. 4186/2008 Ex.P5: Certified copy of compromise petition filed in O.S.No.4186/2008 Ex.P6: Certified copy of decree passed in O.S.No.4186/2008 Plaintiff' side in O.S.No.5601/2011:
Ex.P1: Original possession Certificate
Ex.P2: Original registered Sale Deed
dated.24.12.2003
Ex.P3: No Objection Certificate issued
by defendant Sangha
84 O.S.No.5597/11,5599/11,
5600/11,5601/11 and 5623/11 dated.6.2.2004 Ex.P4 and Two tax paid receipts Ex.P5:
Ex.P6: Certified copy of order sheet pertains to O.S.No.4186/2008 Ex.P7: Certified copy of compromise petition filed in O.S.No.4186/2008 Ex.P8: Certified copy of decree passed in O.S.No.4186/2008 Plaintiff side in O.S.No.5623/2011 Ex.P1: Original possession Certificate Ex.P2: Original registered Sale Deed dated.13.02.2004 Ex.P3: No Objection Certificate issued by defendant Sangha dated.6.2.2004 Ex.P4: Certified copy of order sheet pertains to O.S.No.4186/2008 Ex.P5: Certified copy of compromise petition filed in O.S.No.4186/2008 Ex.P6: Certified copy of decree passed in O.S.No.4186/2008 85 O.S.No.5597/11,5599/11, 5600/11,5601/11 and 5623/11
(a) Defendants side in O.S.No.5597/2011 :
Ex.D1: Certified copy of Sale Deed dated.18.2.2003 Ex.D2: Certified copy of registered Final decree passed in O.S.No.4186/2008 Ex.D3: Certified copy of Sale Deed dated.22.7.2011 Ex.D4: Registered Sale Deed dated.11.01.2012 Ex.D5: Registered Sale Deed dated.29.05.2013 Ex.D6: Encumbrance Certificate Ex.D7: Form-B property Register Extract Ex.D8: Receipt issued by BBMP Ex.D9: Property tax receipt Ex.D10: Power Sanction letter Ex.D11: Tax invoice Ex.D12: Test Certificate Ex.D13&14: Two receipts showing payment of electricity bill Ex.D15- Three photographs with CD D18:
(BHAIRAPPA SHIVALING NAIK) XII Addl. City Civil & Sessions Judge, Bangalore 86 O.S.No.5597/11,5599/11, 5600/11,5601/11 and 5623/11 Judgment pronounced in open court) The suit of the plaintiff in O.S.No.5597/2011, 5599/2011, 5600/2011, 5601/2011 and 5623/2011 are decreed with costs as under:-
It is declared that the Judgment & Decree dated.17.03.2011 passed in O.S.No.4186/2008 by the Learned City Civil Judge is null and void-ab-initio and not binding on the plaintiff. Consequently, permanent injunction is granted, thereby the defendants or anybody claiming under them are restrained from alienating or in any manner crating encumbrance or third party interest over the suit schedule property.
Further the defendants are restrained by way of permanent injunction from dispossessing or disturbing the peaceful possession of the plaintiff over the suit schedule property.
Draw up a decree 87 O.S.No.5597/11,5599/11, 5600/11,5601/11 and 5623/11 accordingly.
Keep the original of this Judgment in O.S.No.5597/2011 and a copy thereof shall be kept in O.S.No.5599/2011, 5600/2011, 5601/2011 and O.S.No. 5623/2011.
(vide order passed) XII ACCJ;Bangalore