Bangalore District Court
In Ms Sindhu. B D/O Sri Bala Krishnan vs In Mrs. Irfana Sharief W/O Khaleemulla ... on 29 July, 2020
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Smt. Suvarna K. Mirji, B.Com., LL.B.(Spl).,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
O.S.No.16453/2006
C/w
O.S.No.6350/2009
Dated this 29th day of July 2020
Plaintiff in Ms Sindhu. B D/o Sri Bala Krishnan,
OS 16453/2006:- aged about 25 years, residing at No.D-003,
Jagrithi Renaissance, Varthur Main Road,
Whitefield road, Bangalore 560 066.
(Rep by Advocate Sri.Y.N. Sathyanarayana Rao)
V/S
Defendant in Mrs. Irfana Sharief W/o Khaleemulla shariff,
OS 16453/2006:- aged about 28 years, R/ at No.19/D,
Umr Bagh, Kanakapura Road,
J.P. Nagar Post, Bangalore 560 078.
(Rep by Advocate Sri N.R. Naik)
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Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
Plaintiff in Mrs. Irfana Sharief W/o. Khaleemulla Shariff,
OS 6350/2009:- aged about 32 years, R/ at No.19/D,
Umar Bagh, Kanakapura Road,
J.P. Nagar Post, Bangalore 78.
(Rep by Advocate Sri N.R. Naik)
V/S
Defendant in Smt. B. Sindhu D/o Sri Balakrishnan,
OS 6350/2009:- aged about 25 years, residing at No.D-003,
Jagrithi Renaissance, Varthur Main Road,
Whitefield road, Bangalore 66.
(Rep by Advocate Sri.Y.N. Sathyanarayana Rao)
OS No.16453/2006 OS No.6350/2009
Date of Institution of the suit 08/08/2006 05/10/2009
Nature of the (Suit or pro-note, suit Declaration and
for declaration and possession, suit for Permanent injunction
injunction, etc.) permanent injunction
Date of the commencement of 23/09/2011 and 23/09/2011 and
recording of the Evidence. 08/11/2012 08/11/2012
Date on which the Judgment
29/07/2020 29/07/2020
was pronounced.
Year/s Month/s Day/s Year/s Month/s Day/s
Total duration 13 11 21 10 09 24
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru
.
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Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
:COMMON JUDGMENT:
The plaintiff in O.S.No.16453/2006 has filed suit
against the defendant for declaration and permanent
injunction.
The plaintiff in O.S.No.6350/2009 has filed suit
against the defendant for permanent injunction.
2. The Brief facts of plaint averments of O.S.No.
16453/2006 is as under:
The plaintiff submits that she has purchased the
below mentioned suit schedule property from one Prithivi
Domnic by way of registered sale deed No.BNG(U)
BLR(S)/9142/2006-07 dated:10/07/2006.
SUIT SCHEDULE PROPERTY
IN OS 16453/2006
All that piece and parcel of the property bearing
site No.21, Khatha No.908, formed out of
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Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
converted Sy.No.10/2A (vide conversion order
No.B.DIS.ALN(E)VB/SR/221/2004-05 dated
19/01/2005 issued by the Deputy Commissioner,
Bangalore District) situated at Amballpura village,
Varthur Hobli, Bangalore East Taluk, measuring
East to West 30 feet, North to South 40 feet, in all
measuring 1200 Sq.Ft. together with existing
constructions having electricity facilities and
water facilities and bounded on East by site
No.22, West by site No.20, North by Road and
South by Site No.16.
The plaintiff in O.S.No.16453/2006 further submits that the
erstwhile owner Prithivi Domnic had purchased the suit
schedule property by way of sale deed bearing
No.19151/2003-04 executed by the then owner Padmanabha
Reddy. After purchase of suit schedule property Prithvi
Dominic had obtained electricity connection and got the said
land converted for residential purpose from the Deputy
Commissioner Bangalore District, vide Order
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Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
No.B.DIS.ALN(E)VB/SR/221/2004-05 dated 19/01/2005
and paid betterment charges to the Bangalore Development
Authority on 17/09/2005. The plaintiff after purchase of the
suit schedule property got the Khatha transferred in her
name and she is in possession of the property as lawful
owner. On 02/08/2006 the plaintiff had visited the suit
schedule property wherein she came to know from a real
estate agent that the owner of the property Irfana Shariff [the
defendant] intends to sell the suit schedule property. The
plaintiff collected address of the defendant and visited their
place. But defendants avoided the plaintiff inspite of her
several visits to their residence. The plaintiff submits that
defendant is trying to sell the suit schedule property to some
other third party by creating fictitious documents and
thereby deprive and deceive the plaintiff. The plaintiff had
purchased the suit schedule property out of her hard earned
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Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
income. The defendant is trying to encumber the suit
schedule property to some other party.
3. The plaintiff further submits that the vendor of the
plaintiff Prithvi Dominic had filed suit for the relief of
permanent injunction against the very defendant in respect
of the suit schedule property in O.S.No.8456/2004 on the
file of this court and subsequently the said Prithvi Dominic
sold the suit schedule property in favour of the plaintiff and
as such the said Prithvi Dominic felt not to continue the
said suit and accordingly he has withdrawn the said suit by
filing necessary memo and dismissal of the said suit does
not affect the rights of the plaintiff in any way. The plaintiff
submits that the G.P.A. relied upon by the defendant clearly
show that the husband of the defendant has tempered,
manipulated, created and concocted the alleged power of
attorney dated 08/12/1993 and has given site number as
though it was not mentioned earlier and more over the said
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Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
document is not registered document and the defendant
cannot claim any right over the schedule property based on
the said document and even the subsequent document
alleged to have been obtained by the defendant based on the
created and concocted power of attorney is also not binding
on the plaintiff and the defendant does not derive any right,
title, interest or possession of any kind over the schedule
property based on the alleged sale deed dated 18/06/1998
and affidavit alleged to have been executed by Krishna
Reddy in favour of husband of the defendant is also a
created and concocted document and as such the defendant
and her husband have not derived or acquired any right,
title, interest or possession of any kind over the suit
schedule property on the concocted documents.
4. The plaintiff further submits that his vendor
obtained an order of conversion in respect of the schedule
property and the said order of conversion issued by the
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Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
Deputy Commissioner, Bangalore District has not been
challenged by the defendant and as such the schedule
property is the converted land and inspite of the same the
defendant has obtained the mutation in respect of portion of
the land bearing Sy.No.10/2A and after coming to know
about the same the plaintiff has preferred a revenue appeal
before the Asst Commissioner Bangalore North Sub
Division, Bangalore and the said Revenue Appeal is pending
disposal. The plaintiff submits that the said B.M.Krishna
Reddy has no manner of right, title, interest or possession of
any kind over the schedule property or any portion thereof
and such being the question of executing the document by
the said Krishna Reddy in favour of husband of the
defendant does not arise. The plaintiff submits that it is the
vendor of the plaintiff who obtained electricity facility in
respect of the schedule property and it is the vendor of the
plaintiff who has put up two sheds in the schedule property.
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Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
Taking advantage of the orders passed by this court, the
defendant has forcibly entered into the schedule property
and is squatting upon the schedule property. The plaintiff
filed this suit for the relief of declaration to declare that the
plaintiff is the absolute owner in respect of the suit schedule
property and also for possession of the suit schedule
property. The cause of action for the suit arose on
02/08/2006. The plaintiff prays for declaration that the
plaintiff is absolute owner of the suit schedule property and
also for grant of possession in respect of the schedule
property and for permanent injunction restraining the
defendant not to alienate or encumber the suit schedule
property.
5. The defendant has filed her written statement in
O.S.No.16453/2006 wherein she has admitted the averments
made in para 1 of the plaint. The defendant further
submitted that she is not aware of averments made in paras
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Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
No.2 and 3 of the plaint. She submits that neither the
plaintiff is the owner of the property bearing site No.21,
Khatha No.10/2A of Ambalipura village, Varthur Hobli,
Bangalore South Taluk, or the plaintiff's vendor's vendor
Padmanabha Reddy was the owner of the schedule property.
The alleged sale deed dated 23/12/2003 is a sham document
created in order to make unlawful gains. The plaintiff did
not derive any title or interest whatsoever under the alleged
sale deed. The alleged vendor's vendor of the plaintiff
Padmanabha Reddy, did not acquire any right over the
schedule property and the alleged sale deed executed by him
in favour of the plaintiff does not convey any manner of
right, title or interest in favour of the plaintiff as the plaintiff
vendor has no right over the site No.21 as per the gift deed
of the vendor. The defendant further denied averments made
in para No.4 of the plaint that the same are within his
knowledge. At no point of time the vendor of the plaintiff
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Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
Prithvi Dominic was the owner of the schedule property and
further the allegations of obtaining the electricity is false.
The defendant is in possession of the property having
construed on the property in the year 1998 itself and
already a tenant is residing in the schedule property from the
year 1999 and already electric connection is there in the
property from the year 1999. The defendant further denied
the allegations made in para No.5 of the plaint as false and
submits that the defendant was not party to the proceedings
in respect of the alleged conversion of land by the Special
Deputy Commissioner, Bangalore. Even if an order of
conversion is passed by the Special Deputy Commissioner,
such an order cannot be in respect of the plaint schedule
property. The said order of conversion may be manipulated
and got up document or may be in respect of some other
portion of the land in old Sy.No.10/2, New No.10/2A and
not in respect of the suit schedule property. The defendant
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Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
further denied averments made in para Nos.6 and 7 of the
plaint as false and submits that the property does ot come
under the purview of the Bangalore Development Authority.
The plaintiff is trying to prove a false title over the property
and further Khatha is fabricated. The plaintiff is trying to
take undue advantage over the property. The defendant
submits that the property belongs to her having purchased
the same through a sale deed through B.M. Krishna Reddy
[father of the plaintiff's alleged previous vendor] on
18/06/1998 vide sale deed registered as document No. BNG
(U) BLR (S) / 1892/1998-99, in the office of Sub Registrar,
Bangalore South Taluk, Bangalore in terms of the sale deed,
physical possession of the schedule property was delivered
to her and ever since then the defendant is in possession of
the same. The defendant's vendor B.M. Krishna Reddy has
executed General Power of Attorney in favour of
defendant's husband Kaleemulla Sharieff on 08/12/1993
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Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
after receipt of full sale consideration authorizing him to
sell the schedule property. The plaintiff's alleged vendor
Padmanabha Reddy son of B.M. Krishna Reddy is the
attesting witness to the said power of attorney, which is
supported by declaratory affidavit sworn to by B.M.Krishna
Reddy affirming the receipt of full sale consideration.
Acting under the said Power of Attorney, the defendant's
husband has executed the sale deed in her favour. The
defendant further submits that she has put up house
construction on the schedule property comprising of two
tenements and another room construction is at finishing
stage. The defendant has also obtained water supply
connection from Bangalore Zilla Panchayath and paying the
taxes to the Village Panchayath. She has also obtained the
electricity supply connection from Bangalore Electricity
Company in respect of the schedule property. The two
residential tenements of the schedule property are let out
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Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
under lease agreements. The defendant further submits that
Padmanabha Reddy son of the defendant's vendor B.M.
Krishna Reddy has executed an agreement of confirmation
on 05/03/1997 ratifying and affirming the execution of
General Power of Attorney in favour of husband of the
defendant Kaleemulla Sharieff. The defendant further
denied the averments of the plaint at pra 8, 9, 10, 11 and 12
and submits that the vendor of the plaintiff has no clear title
over the property and already the vendor of the plaintiff
Prithvi Dominic had fled case in O.S.No.8456/2004 against
this defendant and further the said Prithvi Dominic filed
memo stating that the suit may be dismissed as not pressed
dated 10/08/2006 that too after hot contest knowing fully
well about the future contradictions the said Prithvi Dominic
got the case closed and has sold the property in favour of the
plaintiff and hence the Prithvi Dominic has committed fraud
on the basis of forged documents and hence the suit is liable
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Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
to be dismissed. The defendant further denied the averments
made in para No.13 of the plaint as not within his
knowledge. The defendant submits that he is the absolute
owner of the schedule property. There is no cause of action
for the suit. The plaintiff's vendor Prithvi Dominic has no
right over the suit property as per the gift deed dated
11/04/2001. The defendant prays to dismiss the suit with
exemplary costs.
6. The defendant in O.S.No.16453/2006 has filed
additional written statement wherein she has submitted that
the allegations contained in para 13(a) of the plaint are not
within the knowledge of the defendant and the said Prithvi
Dominic and the plaintiff are related and further
O.S.No.8456/2004 was filed and withdrawn and sufficient
reasons have not been shown for withdrawal and the law of
resjudicata will come into effect. The defendant further
denied the averments made by the plaintiff in para 13(b) of
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Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
the plaint as false and concocted. The defendant further
submits that it is false to state that the General Power of
Attorney dated 08/12/1993 executed by Krishna Reddy in
favour of the defendant's husband is tampered. The said
Krishna Reddy as the owner of the property has rightly sold
the property in favour of the defendant's husband through
General Power of Attorney and affidavit and the transaction
is genuine. The plaintiff is making false allegations. The
plaintiff or the vendor of the plaintiff have no right, title or
interest over the suit schedule property. The defendant
further submits that the defendant's husband executed sale
deed in favour of the defendant dated 18/06/1998 and
further the defendant has got the Khatha transferred to her
name and also paying up to date taxes and also has
constructed residential house and let out on rental. The
defendant is the absolute owner and in possession of the
suit schedule property.
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Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
7. The defendant further submits that the plaintiff has
not derived perfect title as the son of B. Krishna Reddy, B.
Padmanabha Reddy was not the owner of the schedule
property and hence the plaintiff's vendor's title itself was not
proper. Hence the plaintiff has no right or title over the said
property. The defendant further denied averments made in
para 13(d) of the plaint as false and submits that B.M.
Krishna Reddy is the absolute owner of the said property
and the defendant has purchased the said property from the
rightful owner of the schedule property. The defendant
further denied the allegations made in the plain para 13(e) as
false. The defendant after purchasing the property
constructed residential houses in 1988 itself and has let out
on rentals and also the electricity bills are standing in the
name of the defendant and also the defendant has availed
water facility to the schedule portion of the house from the
Bellandur village Panchayath. Hence the plaintiff cannot
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Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
claim declaration against the rightful owner of the property.
The defendant prays to dismiss the suit of the plaintiff.
8. The Brief facts of plaint averments in O.S.No.
6350/2009 is as under:
The plaintiff submits that she is the absolute owner of the
suit schedule property mentioned below and she has
acquired the same by way of registered deed of sale dated
18/06/1998.
SUIT SCHEDULE PROPERTY
[IN OS No. 6350/2009]
All the piece and parcel of the property bearing
Gramathana House List No.21, in Khatha 10/2,
situated at Ambalipura village, Varthur Hobli,
Bangalore South taluk, Bangalore bounded on
East by property No.22, West by Property
No.20, North by Road, South by property
No.16 measuring East to West 30 feet, North to
South 40 feet, in all measuring 1200 Sq. Ft.
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Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
9. The plaintiff submits that she has purchased the suit
schedule property from B.M.Krishna Reddy through his
G.P.A. Holder Khaleemulla Shariff. The said Mr.
Khaleemulla Shariff is her husband and the suit schedule
property was given to her by her husband in lieu of Mehr.
The plaintiff further submits that after purchase of the suit
schedule property she got the property mutated to her name
under MR No.10/2004-05 and has paid tax on the schedule
property to the concerned authorities. The plaintiff further
submits that she has constructed six square house and
obtained electricity connection and has rented out the
schedule propriety and tenants Yasmeen and her family are
residing in the schedule property. The plaintiff further
submits that one Prithvi Dominic had filed suit for
injunction in O.S.No.8456/2004 against the plaintiff in
respect of the suit schedule property on the strength of the
deed of sale executed in his favour by one Padmanabha
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Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
Reddy who is the son of plaintiff's vendor B.M. Krishna
Reddy and he withdrew the same by filing memo and the
suit was dismissed accordingly on 10/08/2006. The plaintiff
further submits that the said Prithvi Dominic after dismissal
of the suit, sold the schedule property to the defendant and
the defendant has filed injunction suit in
O.S.No.16453/2006 before the City Civil Court, Mayohall
unit against her. The plaintiff further submits that the
defendant with an intention to defraud her availed the loan
in the Grain Merchants Co Operative Bank by pledging the
schedule property during the pendency of the suit and in
collusion with the bank. The said Bank filed suit against the
defendant for recovery of the loan amount and the defendant
has remained absent in the said suit and hence the bank has
obtained decree for recovery against her. The plaintiff
further submits that on coming to know about the decree
through the paper notice, she has filed an application for re
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Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
open of the case before the Joint Registrar of Co Operative
Society. The plaintiff filed application for re open of the
bank suit and defendant is trying to interfere with the
possession of the plaintiff and trying to harass and frustrate
her in one way or the other to grab the property illegally.
On 27/08/2009 and 28/08/2009 the defendant came to the
schedule property with some rowdy elements and tried to
gain illegal entry inside the house by threatening the tenants
and with the help of police she restrained the defendant and
tenants have lodged police complaint. The plaintiff further
submitted that she is putting up an extension to the existing
building and had kept building materials and also had stored
electric materials of her shop. The defendant being
unsuccessful in her attempts to gain illegal entry into the
schedule property on 27/09/2009 came with rowdy elements
and has put fire to these materials and threatened the tenants
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Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
of dire consequences if they approach the police. In this
regard the plaintiff has filed complaint with the police.
10. The plaintiff further submits that the defendant is
making hectic efforts to sell the suit schedule property to
third person and thereby create third party rights and
complicate the proceedings and frustrate the plaintiff to
abandon the suit. The plaintiff has taken paper notice with
respect of the attempts made by the defendant to sell the suit
schedule property. The plaintiff further submits that she is
the bonafide purchaser of suit schedule property for valuable
consideration and since the day of acquisition she is in
possession of the suit schedule property and the defendant
has no manner of right, title or interest over the schedule
property interfering with the possession and enjoyment off
the schedule property of the plaintiff. The plaintiff has
availed loan for purchase of the schedule property. The
defendant in collusion with the son of the vendor of the
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Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
plaintiff has fabricated and cooked up documents to the
schedule property and trying to grab the schedule property
on the basis of cooked up and fabricated documents and
causing complication to the ownership of the plaintiff. The
defendant is making efforts to change the nature of the
schedule property. If the defendant is not restrained from
her illegal interference she will succeed depriving the
plaintiff of the schedule property.
11. The plaintiff further submits that the defendant has
purchased the property from one Prithvi Domnic, only in the
year 2003. The said Prithvi Dominic in turn had purchased
the schedule property from one Padmanabha Reddy who is
none other than the son of B.M. Krishna Reddy, the vendor
of the plaintiff. The plaintiff purchased the property in the
year 1998 from B.M. Krishna Reddy through his G.P.A.
Holder. The said Padmanabha Reddy, is attesting witness for
the G.P.A. executed by his father B.M. Krishna Reddy, in
24
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
favour of one Khaleemulla Shariff, husband of the plaintiff.
The said Padmanabha Reddy, has also subscribed his
signature as witness to the affidavit Sworn by B.M. Krishna
Reddy affirming the receipt of the full sale consideration.
In addition to these documents the said Padmanabha Reddy
has executed an agreement of confirmation, ratifying and
affirming the execution of GPA in favour of Khaleemulla
Shariff. The said Padmanabha Reddy did not have saleable
alienable or right of ownership in or over the schedule
property. The said Prithvi Dominic, who purchased the
schedule property from the said Padmanabbha Reddy, did
not derive any ownership valid title or possession from him.
Hence he realized that he cannot have valid title to the
schedule property and got his case O.S.No.8456/2004
withdrawn and sold the schedule property to the defendant.
Hence the defendant cannot derive any valid title from her
owner and hence she is not the owner of the schedule
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Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
property. He plaintiff has made out a prima facie case and
the balance of convenience lies in granting an injunction in
favour of the plaintiff. If an order of injunction is not
granted there is every possibility that the defendant on the
strength of fabricated and cooked up document sell the
schedule property by changing the nature of the suit
schedule property and the plaintiff will be put to great
hardship, injury and loss and will be entangled in endless
litigation. On the other hand no hardship will be caused to
the defendant. The plaintiff is lawful owner in possession
and enjoyment of the suit schedule property since the date
of acquiring the same till date. The cause of action arose on
27/08/2008 when the plaintiff came to know that the
defendant and her henchmen had interfered with the
plaintiffs possession of the schedule property and on
subsequent dates when defendants tried to get entry to the
schedule property and on 28/09/2009. The plaintiff prays to
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Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
decree the permanent injunction restraining the defendant,
her agents, servants, henchmen or any person along with
them from alienating and / or interfering with the possession
and enjoyment of the schedule property.
12. The defendant in O.S.No.6350/2009 B.Sindhu filed
written statement submitting that the suit brought by the
plaintiff seeking for the imaginary relief of permanent
injunction in respect of the schedule property is not
maintainable and the same is liable to be dismissed. The
plaintiff has not approached the court with clean hands and
she has suppressed the material facts and as such the
plaintiff is not entitled for any relief. The suit of the
plaintiff seeking appropriate relief is not maintainable and
the same is barred by law of limitation. The defendant
submits she has purchased the schedule property by way of
registered sale deed dated 10/07/2006 from Prithvi Dominic.
The said Prithvi Dominic had purchased the schedule
27
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
property by way of sale deed No.19151/2003-04 from the
then owner Padmanabha Reddy. The said Prithvi Dominic
had obtained the electricity connection to the schedule
property and he had also got converted the schedule
property for residential purpose from the Deputy
Commissioner, Bangalore district vide Order
NO.B.DIS.ALN(E)VB/SR/221/2004-05 dated 19/01/2005.
The said Prithvi Dominic had also paid betterment charges
to the Bangalore Development Authority vide challan
No.6022 dated 17/09/2005.
13. The defendant further submits that after purchasing
the schedule property she got khatha transferred into her
name and she is in possession of the schedule property as
lawful owner. That on 02/08/2006 at about 3.30 p.m. when
she had visited the schedule property some real estate agent
had come near the schedule property and they were
measuring the land. She has approached the said person and
28
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
questioned him and the said agent had replied that the
schedule property was for the sale by the owner Irfana
Shariff [plaintiff]. The defendant further submits that she
obtained the address of the plaintiff and inspite of several
visits the plaintiff or her husband Khaleemulla failed to
come before the defendant and explain with regard to their
ownership or produced any documents. Hence she has filed
suit for the relief of permanent injunction against the
plaintiff in O.S.No.16453/2006 on the file of Addl. City
Civil Judge at Mayohall. The defendant submits that the
vendor of the defendant viz., Prithvi Domnic had filed suit
for the relief of permanent injunction against the plaintiff
herein in respect of the schedule property in
O.S.No.8456/2004 on the file of this court and subsequently
the said Prithvi Dominic sold the schedule property in favoir
of the defendant and as such the said Prithvi Dominic did
not felt it necessary to continue the said suit and accordingly
29
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
he has withdrawn the said suit by filing necessary memo.
The defendant further submits that dismissal of the said suit
does not affect the rights of the defendant in any way. The
defendant further submits that the alleged General Power of
Attorney produced by the plaintiff and relied upon, it is
very clear that the husband of the plaintiff has tampered,
manipulated, created and concocted the Power of Attorney
dated 09/12/1993 and has given site number as 21 though it
was not mentioned earlier and more over the said document
is not a registered document and the plaintiff cannot claim
any right over the schedule property based on the said
document. Even subsequent document alleged to have been
obtained by the plaintiff based on the said power of
attorney is also not binding on the defendant and the
plaintiff does not derive right, title, interest or possession of
any kind over the schedule property based on the alleged
sale deed dated 18/06/1998 and the affidavit alleged to have
30
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
been executed by Krishna Reddy in favour of husband of
the plaintiff is also created and concocted document and as
such the plaintiff and her husband have not derived or
acquired any right, title, interest or possession of any kind
over the schedule property based on the concocted
document.
14. The defendant further submits that her vendor had
obtained an order of conversion in respect of the schedule
property and the said order of conversion issued by the
Deputy Commissioner, Bangalore District has not been
challenged by the plaintiff and as such the schedule
property is the converted land and inspite of the same the
plaintiff has obtained the mutation in respect of portion of
the land bearing Sy.No.10/2A and after coming to know
about the same the defendant has preferred a revenue appeal
before the Asst. Commissioner, Bangalore North Sub
Division, Bangalore and the said Revenue Appeal came to
31
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
be dismissed on a technical ground and as against the said
orders this defendant has preferred a revision petition before
the Special Deputy Commissioner, Bangalore Urban
District, Bangalore and obtained an order of stay and the
said order is operating against the plaintiff herein and the
said revision petition is pending disposal.
15. The defendant further submits that the said B.M.
Krishna Reddy has no manner of right, title, interest or
possession of any kind over the schedule property or any
portion thereof and as such being the case, the question of
the executing the document by the said Krishna Reddy in
favour of husband of the plaintiff does not arise. The
defendant further submits that her vendor had obtained
electricity facility in respect of the schedule property and
put up two sheds in the schedule property and taking
advantage of the orders passed by this court the plaintiff has
forcibly entered into the schedule property and has squat
32
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
upon the schedule property and hence the defendant having
no other alternative, has also filed the suit for the relief of
declaration, to declare that this defendant is the absolute
owner in respect of the schedule property and also for the
relief of possession in respect of the schedule property in
O.S.No.16453/2006 and the said suit is pending disposal.
This defendant submits that the plaintiff has no manner of
right, title, interest or possession of any kind over the
schedule property or any portion thereof by crating and
concocting story has filed false suit against her for
imaginary relief and as such the plaintiff is not entitle to
any relief at the hands of the court.
16. The defendant further submits that she is the
bonafide purchaser in respect of the schedule property and
the same is well within the knowledge of the plaintiff and in
order to harass her the plaintiff has created and concocted
the documents and has filed false suit. The defendant has
33
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
denied the allegations made in the plaint at paras No. 2, 3, 5,
6, 7, 8, 9 to 15.
17. The defendant denied that plaintiff is the absolute
owner of site bearing No.21, in Khatha No.10/2, situated at
Ambalipura village, Varthur Hobli, Bangalore South Taluk,
Bangalore having acquired the same under registered deed
of sale dated 18/06/1998 from one B.M. Krishna Reddy,
through his G.P.A holder Khaleemulla Sheriff and that the
said property was given to the plaintiff by her husband in
lieu of mehar and the plaintiff got the property mutated to
her name vide MR No.10/2004-05 and the plaintiff has paid
the taxes The defendant further denied that the plaintiff has
put up construction of 6 square house and has obtained
electricity connection and rented to the tenants.
18. The defendant admits the averments made in para
No.4 of the plaint that the vendor of this defendant had filed
34
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
suit in O.S.No.8456/2004 and the said suit came to be
withdrawn. The defendant further denied as false other
allegations made in para 4 of the plaint. The defendant
denied as false that the defendant trying to interfere with the
possession of the plaintiff and trying to harass and frustrate
the plaintiff in one way or the other to grab the schedule
property illegally on 27/08/2009 and 28/08/2009.
19. The defendant further denied as false that the
plaintiff had kept building materials and also had stored
electric materials and the defendant on 27/09/2009 came and
set fire to the materials and threatened the tenants and the
plaintiff lodged police complaint are all false. The
defendant further denied that he made hectic efforts to sell
the schedule property to third parson and create third party
rights as false. He further denied that the plaintiff is in
physical possession and enjoyment of the schedule property
and also denied that the defendant has no manner of right,
35
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
title or interest over the schedule property and is interfering
with the possession and enjoyment of the schedule property
of the plaintiff as false. The defendant denied as false that
he has fabricated, cooked up documents of the schedule
property and trying to grab the same.
20. The defendant submits that the plaintiff admits the
execution of the sale deed by Prithvi Dominic in favour of
the defendant and also admits the previous deed as stated in
para No.14 of the plaint and hence the plaintiff is not entitle
to any relief at the hands of this court. Further the defendant
denied as false that Padmanabha Reddy has subscribed his
signature as witness to the affidavit sworn by B.M. Krishna
Reddy affirming the receipt of the full sale consideration
and that in addition to these documents the said
Padmanabha Reddy has executed an agreement of
confirmation, ratifying and affirming the execution of G.P.A
in favour of Khaleemulla sheriff and the said Padmanabha
36
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
Reddy did not have saleable alienable right of ownership
over the schedule property. The defendant further denied
Prithvi Dominic who purchased the schedule property did
not derive any ownership, valid title or possession and that
the defendant cannot derive any valid title from her vendor.
There is no cause of action for the suit. The defendant prays
to dismiss the suit of plaintiff with costs.
21. On the basis of above pleadings following Issues
are framed:-
:ISSUES IN OS No.16453/2006
(1) Whether plaintiff proves her lawful
possession and enjoyment over the suit
schedule property as on the date of the
suit?
(2) Whether plaintiff proves the alleged
obstructions from the defendant?
(3) Whether plaintiff is entitled to the relief
claimed?
(4) What decree or order?
37
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
ADDL ISSUES IN OS 16453/2006
(1) Whether the plaintiff proves that she is
absolute owner of the suit schedule property?
(2) Whether the plaintiff is entitled for the
declaration as sought for?
(3) Whether the plaintiff is entitle for the
possession of the suit schedule property from
the defendant?
:ISSUES IN OS No.6350/2009
(1) Whether the plaintiff proves that she is in
possession and enjoyment of the suit schedule
property on the date of instituting the suit?
(2) Does the plaintiff proves the illegal
interference of the defendant?
(3) Whether the plaintiff is entitled for permanent
injunction as prayed?
(4) What order or decree?
22. The plaintiff in O.S.No.16453/2006 Sindhu B. is
examined as PW1 and she marked documents at ExP1 to
ExP20 and closed the plaintiff side evidence. After clubbing
of both the suits in O.S.No.16453/2006 and
O.S.No.6350/2009 Sindhu. B., further examined in chief as
PW1 on 08/11/2012. But she has not subjected for cross
38
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
examination. Thereafter the GPA holder of plaintiff in
O.S.No.16453/2006 and Defendant in O.S.No.6350/2009
examined as PW.1 and marked documents ExP1 to ExP21.
The SPA of defendant in O.S.No.16453/2006 and plaintiff in
O.S.No.6350/2009 examined as DW.1 and marked
documents at ExD1 to ExD39.
23. The plaintiff and defendant counsel argued. The
defendant counsel filed memo with citations. Perused the
records.
24. My finding to the above Issues in both suits is as
under.
[IN OS No.16453/2006]
Issue No.1) In Negative
Issue No.2) In Negative
Issue No.3) In Negative
Issue No.4) See final order
Addl. Issue No.1) In Negative
Addl. Issue No.2) In Negative
Addl. Issue No.3) In Negative
39
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
[IN OS No.6350/2009]
Issue No.1) In Negative
Issue No.2) In Negative
Issue No.3) In Negative
Issue No.4) See final order for following:
:REASONS:
25. Issues No.1 to 3 and Addl. Issue No.1 to 3 in
OS.No.16453/2006 & Issues No.1 to 3 in
OS.No.6350/2009:
The plaintiff/Sindhu.B in O.S.No.16453/2006 has
filed her affidavit evidence in lieu of examination in chief as
PW1 in O.S.No.16453/2006 on 23/09/2011 and marked
ExP1 to ExP20. Thereafter PW.1/Sindhu has further
deposed in her examination in chief by way of additional
affidavit on 08/11/2012 wherein she has deposed that she is
the plaintiff in O.S.No.16453/2006 and defendant in
O.S.No.6350/2009. She has been examined as PW.1 in
O.S.No.16453/2006 on 23/09/2011 and marked documents
as ExP1 to ExP20 and subsequently the case has been
clubbed and hence she is deposed additional evidence.
40
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
26. That said PW.1 Sindhu was not subjected for cross
examination. Hence But afterwards Maria Robert W/o
Rayan Castelino GPA of plaintiff Sindhu in
OS.No.16453/2006 and defendant in OS.No.6350/2009
examined as PW.1 on 07/04/2014 and same documents
remarked and and one additional document marked and
given renumbers as ExP1 to ExP21. The SPA holder of
plaintiff in O.S.No.16453/2006 and also SPA holder of
Defendant in O.S.No.6350/2009 Maria Robert has filed her
affidavit in lieu of examination in chief as PW1 and
deposed evidence that the suit schedule property was
purchased by the plaintiff by way of registered sale deed
dated No.BNG(U)-BLR(S)9142/2006-07 dated 10/07/2006.
She has further deposed that erstwhile owner Prithvi
Domnic had purchased the said property by way of sale
deed No.19151/2003-04 executed by the then owner
Padmanabha Reddy. After purchasing the suit schedule
41
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
property the erstwhile owner Prithvi Dominic had obtained
the electricity connection. The erstwhile owner had also got
the said land converted for residential purpose from the
Deputy Commissioner, Bangalore District vide order
No.B.DIS.ALN(E) VB/SR/221/2004-05 dated 19/01/2005
and also paid the betterment charges to the Bangalore
Development Authority. She further deposed that the
plaintiff got the Khatha transferred in her name and she is
in possession of the property as a lawful owner. That on
2/8/2006 the plaintiff had visited the plaint schedule
property at that time some real estate agent had come and
on questioning by the plaintiff, he informed her that the
plaint schedule property was for sale by owner Irfana
Sharief [defendant]. She further deposed that the plaintiff
obtained address of the defendant and had made several
visits to the defendant but neither she [defendant] or her
husband Khaleemulla had come before plaintiff to explain
42
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
with regard to their ownership nor produced any documents
and avoided to meet the plaintiff. She further deposed that
the plaintiff has strong indication that the defendant is
trying to sell the suit schedule property to some other third
party by creating documents. The plaintiff has purchased
the property for Rs.6,00,000/- out of her hard earned money.
She further deposed that vendor of the plaintiff Prithvi
Domnic filed suit for the relief of permanent injunction
against the defendant in respect of the schedule property in
O.S.No.8456/2004 and subsequently the said Prithvi
Domnic sold the suit schedule property in favor of the
plaintiff and therefore he has withdrawn the suit by filing
memo and dismissal of the suit does not affect the rights of
the plaintiff anyway. She further deposed that the G.P.A.
produced by the defendant is tampered and manipulated,
created and concocted and in the alleged power of attorney
dated 08/12/1993 site number has been given as 21 though
43
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
it was not mentioned earlier and the said document is not a
registered document and the defendant cannot claim any
right over the schedule property based on the said document
and subsequent documents alleged to have been obtained by
the defendant based on the said alleged created and
concocted power of attorney is also not binding on the
plaintiff and the defendant does not derive any right, title,
interest or possession of any kind over the schedule property
based on the sale deed dated 18/06/1998 and the affidavit
alleged to have been executed by Krishna Reddy in favour
of the husband of the defendant is also a created and
concocted document. The defendant and her husband have
not derived or acquired any right, title, interest or possession
of any kind over the schedule property on the spurious and
concocted documents. She further deposed that plaintiff
vendor had obtained an order of conversion in respect of the
schedule property and the said order of conversion issued by
44
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
the Deputy Commissioner Bangalore District has not been
challenged by the defendant and as such the schedule
property is the converted land and inspite of the same the
defendant has obtained the mutation in respect of portion of
the land bearing Sy.No.10/2A and after coming to know
about the same, the plaintiff has preferred a revenue appeal
before the Asst. Commissioner, North Sub Division,
Bangalore, in R.A.No.(BE)194/09-10 and the said appeal
came to be dismissed on technical ground and as against the
said orders the plaintiff preferred a revision petition before
the Special Deputy Commissioner in R.P.No.156/10-11 and
after contesting the said revenue petition came to be allowed
vide order dated 27/06/2011 and the said order is final. She
further deposed that B.M. Krishna Reddy has no manner of
right, title, interest or possession over the schedule property
or any portion thereof and hence the question of executing
the document by the said Krishna Reddy in favour of
45
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
husband of the defendant does not arise. The DW.1 further
deposed that it is the vendor of the plaintiff who has
obtained electricity facility in respect of the schedule
property and it is the vendor of the plaintiff who has put up
2 sheds in the schedule property and taking advantage of the
orders passed by this court the defendant has forcibly
entered into the schedule property and has squatting upon
the schedule property and hence the plaintiff has no other
alternative than to approach this court by filing this suit for
the relief of declaration to declare that plaintiff is the
absolute owner in respect of the schedule property and also
for possession of the schedule property. The PW.1 further
deposed that the plaintiff in O.S.No.6350/2009 and
defendant in O.S.No.16453 has no manner of right, title,
interest or possession of any kind over the schedule property
or any portion thereof by creating and concocting the story
and the said document has filed a false suit against the
46
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
plaintiff for the imaginary reliefs. The PW.1 further
deposed that plaintiff is the bonafide purchaser in respect of
the schedule property and the same is well within the
knowledge of the plaintiff in O.S.No.6350/2009 and
knowing fully well about the same the plaintiff in
O.S.No.6350/2009 and knowing fully well about the same
the plaintiff in O.S.No.6350/2009 in order to harass the
plaintiff and put into hardship and inconvenience has
created and concocted the story and documents and has filed
false suit against the plaintiff and the plaintiff in
O.S.No.6350/2009 is not entitled to any relief at the hands
of this court. There is no cause of action for filing
O.S.No.6350/2009 and the boundaries given in
O.S.No.6350/2009 are totally false and on that count also
the suit in O.S.No.6350/2009 is liable to be dismissed. PW1
prays to decree the suit in O.S.No.16453/2006 and dismiss
47
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
O.S.No.6350/2009 with exemplary costs. In support of oral
evidence PW.1 marked documents ExP1 to ExP21.
27. The SPA of defendant Kaleemulla Shariff S/o Late
Mohamood Sharief filed his affidavit in lieu of examination
in chief as DW.1 and deposed that he is the SPA holder of
his wife Irfana Sharif. That neither plaintiff is the owner of
the property bearing site No.21, Khatha No.10/2A of
Ambalipura village, Varthur Hobli, Bangalore South Taluk
nor the plaintiff's vendors vendor Padmanabha Reddy, was
the owner of the schedule property. He further deposed that
the sale deed dated 23/02/2003 is a fabricated document and
the plaintiff did not derive any title or interest whatsoever
under the said alleged sale deed. The plaintiff's vendor's
vendor Padmanabha Reddy did not acquire any right over
the schedule property and the alleged sale deed executed by
vendor of the plaintiff does not convey any manner of right,
title or interest in favour of the plaintiff. The plaintiff's
48
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
vendor has no right over site No.21 as per the gift deed of
the vendor. He further deposed that at no point of time the
vendor of the plaintiff Prithvi Dominic was the owner of the
schedule property and further the allegations of obtaining
the electricity is false as he is in possession of the property
having constructed in the year 1998 and already a tenant
residing in the suit schedule property by obtaining
electricity connection. The DW.1 further deposed that he is
not a party to the proceedings in respect of the alleged
conversion of the land by the Special Deputy Commissioner,
Bangalore, and even if any order of conversion is passed by
the Special Deputy Commissioner, such an order cannot be
in respect of the plaint schedule property. The DW.1 further
deposed that the alleged order of conversion may be
manipulated and got up document or alternatively the
alleged conversion may be in respect of some other portion
of the land in 10/2 and Sy.No.10/2A and not in respect of the
49
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
schedule property. The property does not come under the
purview of the Bangalore Development Authority. The
DW.1 further deposed that the plaintiff is trying to prove a
false title over the property and further the khatha is
fabricated only to prove a false title over the said property
and trying to take undue advantage over the said property.
28. The DW.1 further deposed that the property belongs
to him having purchased the same through GPA on 1993
sale deed through B.M. Krishna Reddy [father of the
plaintiff's alleged previous vendor] on 18/06/1998 vide sale
deed registered as document No. BNG (U) BLR(S) / 1892 /
1998-99 and in terms of the said sale deed physical
possession of the schedule property was delivered to him
and ever since then he has fully possessed the same. The
DW.1 further deposed that his vendor B.M. Krishna Reddy
has executed sale deed based on General Power of Attorney,
Kaleemulla Sharieff on 08/12/1993, after receipt of the full
50
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
sale consideration, authorizing him to sell the schedule
property. The plaintiff alleged vendor Padmanabha Reddy
S/o B.M. Krishna Reddy is the attesting witness to the said
power of attorney which is supported by declaratory
affidavit sworn by the said B.M. Krishna Reddy, confirming
the receipt of full sale consideration and acting under the
said power of attorney he had executed the sale deed in
favour of Irfana Shariff.
29. The DW.1 further deposed that he had put up house
construction on the suit schedule property comprising of two
tenants and he has also obtained water and electricity supply
connection and paying taxes to the jurisdictional village
Panchayath in respect of the suit schedule property. The
DW.1 further deposed that Padmanabha Reddy is son of his
vendor B.M. Krishna Reddy has executed an agreement of
confirmation on 05/03/1997 ratifying and affirming the
execution of general power of attorney in favour of him by
51
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
the father of Padmanabha Reddy. The DW.1 further deposed
that the plaintiff has no clear title over the property and
already the vendor of the plaintiff Prithvi Dominic filed
memo stating that the suit may be dismissed knowing fully
well about the future contradictions and the said Prithvi
Dominic got the case closed and sold the property in favor
of the plaintiff deliberately and hence the Prithvi Dominic
has committed fraud and on the basis of forged documents
and hence the suit is liable to be dismissed.
30. The DW.1 further deposed that defendant is the
absolute owner of the schedule property and after
construction in the year 1998 portion was finished in the
year 1999 and since 1999 the portions are let out for rents.
The plaintiff's vendor Prithvi Dominic has no right over the
site No.21 as per the gift deed dated 11/04/2001. There is
no cause of action for the suit. The DW.1 further deposed
that defendant is the absolute owner of all that piece and
52
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
parcel the site bearing No.21, khatha No.10/2 and
Sy.No.10/2A situated at Amabalipura village, Varthur hobli,
Bangalore South taluk, Bangalore, having acquired by her
by way of registered deed of sale dated 18/06/1998 from the
S.P.A. and further she has purchased the schedule property
from one B.M. Krishna Reddy through GPA holder
Khaleemulla Sheriff [DW1]. The DW.1 further deposed that
he is husband of defendant by him to defendant in lieu of
Maher. After the purchase of the schedule property she got
the property mutated in her name under MRN No.10/2004-
05 and further she has paid the tax on the schedule property
regularly to the concerned authorities. She further deposed
that one by name Prithvi Dominic had filed a inunction suit
in O.S.No.8456/2004 against her in respect of the schedule
property on the strength of deed of sale executed by one
Padmanabha Reddy who is the son of her vendor B.M.
Krishna Reddy, he withdrew the same by filing a memo and
53
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
suit was dismissed accordingly on 10/08/2006. The said
Prithvi Dominic after the dismissal of the suit sold the suit
schedule property in favour of plaintiff and further filed
suit for injunction in O.S.No.16453/2006 against the
plaintiff which is pending.
31. The DW.1 further deposed that the plaintiff in
order to grab the schedule property availed the loan from the
Grain Merchants Co Operative Bank by pledging the
schedule property and she has not paid any loan amount.
The said bank filed suit against the plaintiff for recovery of
loan amount and the plaintiff remained absent and the
hence bank obtained decree for recovery against defendant.
After coming to know about the decree through paper notice
she has filed an application to reopen the said case before
Joint Registrar of Co Operative society. The plaintiff with
an intention to defraud her availed the loan from the Grain
Merchants Co Operative bank pledging the schedule
54
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
property during the pendency of the suit and in collusion
with the bank. The said bank filed suit against the plaintiff
for recovery of the loan amount and the plaintiff remained
absent in the said suit and hence the bank obtained decree
for recovery against her. The DW.1 further deposed that
after filing application by her for reopen of the bank suit the
plaintiff is trying to interfere with her possession and trying
to harass and frustrate her in one way or the other to grab
the schedule property illegally and on 27/08/2009 and
28/8/2009 the plaintiff tried to gain illegal entry inside the
house by threatening the tenants of the house but, she
successfully restrained the plaintiff and and an FIR was
lodged on 6/10/2010. He is putting up extension of the
existing building and had kept building materials and also
had stored electricity materials but the defendant put fire to
these materials and threatened the tenants of dire
consequences. The plaintiff is making hectic efforts to
55
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
alienate the suit schedule property to third person and
thereby create third party rights and complicate The
proceedings. The DW.1 further deposed that defendant is
bonafide purchaser for valuable consideration and in
possession and enjoyment of the suit schedule property and
the plaintiff has no manner of right, title or interest over the
suit schedule property is interfering with the possession and
enjoyment of the suit schedule property by the defendant.
The DW.1 further deposed that defendant he has put all her
earnings and savings on the schedule property and availed
loan for the purpose of schedule property and intends to
construct own house, but the plaintiff in collusion with the
son of his vendor has fabricated and cooked up documents
of the schedule property and trying to grab the schedule
property on the basis of her cooked up and fabricated
documents.
56
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
32. The DW.1 further deposed that plaintiff has
purchased the property from one Prithvi Domnic only in the
year 2003. The said Prithvi Dominic in turn had purchased
the schedule property from one Padmanabha Reddy who is
none other than son of B.M. Krishna Reddy, vendor of
defendant in the year 1993 from B.M. Krishna Reddy in
favour of one Khaleemulla Shariff. The DW1 further
deposed that Padmanabha Reddy has also subscribed his
signature as witness to the affidavit sworn by the said B.M.
Krishna Reddy affirming the receipt of full sale
consideration. Hence the Padmanabha Reddy did not have
saleable, alienable or right of ownership in or over the
schedule property. The said Prithvi Dominic who purchased
the schedule property from the said Padmanabha Reddy, did
not derive any ownership valid title or possession from him.
Hence he realized that he cannot have a valid title to the
schedule property and got The suit O.S.No.8456/2004
57
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
withdrawn and sold the schedule property to the plaintiff.
Hence the plaintiff cannot derive any aid title from her
owner and hence she is not the owner of the schedule
property. The DW.1 prays to dismiss the suit of the plaintiff
Smt. Sindhu B. and decree th suit O.S.No.6350/2009. In
support of his evidence DW1 marked documents ExD1 to
ExD39.
33. In support of oral evidence the PW.1 marked
documents ExP1 to ExP21. The ExP1 is Special Power of
Attorney executed by B. Sindhu [plaintiff in
O.S.No.16453/2006 and defendant in O.S.No.6350/2000] in
favour of Maria Robert W/o Rayan Castelino for conducting
both the suits. The ExP2 is General Power of Attorney
executed by B.M.KrishnaReddy S/o Mariswammappa in
favour of his son Padmnabha Reddy on 12/03/1991 relating
to all part and parcel of the land in Sy.No.10/2A Old No.8
and 9 situated at Ambalipura village, Varthur Hobli,
58
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
Bangalore south taluk, Bangalore to an extent of 13.5
Guntas measuring East-West 180 geet and North to South
Eastern side 85 feet, western side 80 feet bounded by East:
Ballandur main road, west: Remaining portion of the
executant property, North: 25 feet road, South: Road and
remaining portion belongs to executant's daughters. In
ExP3 four encumbrance certificates were marked, one is for
the period from 01/04/2003 to 31/03/2004, where in there is
entry regarding sale of site No.21 KH No.10/2A, 30X40
feets of Ambalipura Village, Varthur Hobli, Banagalore
South Taluq by Padmanabreddy to Parthvi Domnic on
23/12/2003, further second encumbrance is for the period
from 01/04/2004 to 04/09/2009, where in there is entry
regarding sale of Site No.21 KH No.908, converted
Sy.No.10/2A, 30X40 feets of Ambalipura Village, Varthur
Hobli, Bangalore East Taluq by Parthvi Domnic to
B.Sindhu, in which there is AC sheet house, further third
59
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
encumbrance certificate is is for the period from 01/04/2004
to 04/09/2009 in the name of B.Sindhu relating to Site
No.21 Khata No.10/2 of Ambalipura Village, Varthur Hobli,
Banagalore, further fourth encumbrance certificate is for the
period from 01/04/1998 to 31/03/2004, where in there is
entry regarding sale of IGHC No.21 KH No.10/2 (30 X 40)
of Ambalipura Village, Varthur Hobli, Banagalore Taluq by
B.M.Krishnareddy represented by GPA Kaleemulla Shariff
to Irfana Shariff.
34. The ExP4 is memorandum relating to deposit of
title deed of suit property by B.Shindu (Plaintiff in
OS.No.16453/2006 and defendant in OS.6350/2000) in
favour of The Grain Merchants' Co-operative Bank Ltd., for
obtaining loan on 24/11/2006. In ExP5 three electricity
bills are marked. In ExP6 six tax paid receipts are marked.
The ExP7 is building plan and license obtained by Prathvi
Domnic for construction of house in No.908/10/2A of
60
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
Ambalipur village of Varthur Hobl comes under Bellandur
Gram Panchayat. The ExP8 is tax demand register extract.
The ExP9 is copy of conversion order issued by Special
Deputy Commissioner, Bangalore for conversion of 0-02-02
Guntas in Sy.No.10/2A of Amblipur village, Varthur Hobli,
Bangalore East Taluk as per application of Prathvi Domnic.
35. The ExP10 is certified copy of sale deed
dt.10/07/2006 executed by Prathvi Domnic S/o G.Domnic
infavour of Sindhu B D/o Balakrishnan in respect of
property bearing Site No.21, khata No.908 formed out of
converted Sy.No.10/2A (Vide conversion order No.
B.DIS.ALN.(E)VB/SR/221/2004-2005 Dated 19/01/2005
issued by the Deputy Commissioner, Bangalore Dis situated
at Ambalipur Village, Varthur Hobli, Bangalore East Taluk,
measuring East to West: 30 feet, North to South: 40 feet in
all measuring 1200 square feets bounded by East:Site
No.22, West:Site No.20, North:Road, South:Site No.16
61
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
along with 2 squares AC sheet roofed house built in thereon,
constructed with cement and bricks, the doors and windows
are made out with jungle wood with all civic amenities like
Electricity meter RR No.8SATL-14561-B-15-197, water and
sanitary facility in the schedule property.
36. The ExP11 is certified copy of sale deed deed
dated:14/12/2003 executed by Padmanabreddy S/o
B.M.Krishnareddy to Prithvi Domnic S/o G. Domnic in
respect of site No.21, Khata No.10/2A situated at
Ambalipura village, Varthur Hobli, Bangalore East Taluk
measuring East to West: 30 feet, North to South: 40 feets in
all measuring 1200 square feets. The ExP12 is copy of
endorsement and challen issued by BDA. The ExP13 is two
mutation bearing No.3/2004-2005 about entry name of
Prithvi Domnic for having purchased property as per ExP11
and another one mutation is entry regarding conversion of
land purchased by Prithvi Domnic as per ExP11 for non
62
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
agriculture purpose. In ExP14 total nine (9) record of rights
relating to Sy.No.10/2 and 10/2A of Ambalipura village,
Varthur Hobli, Bangalore are marked. The ExP15 is
settlement register copy and Exp16 is certified copy of
survey sketch, ExP17 is Photograph of property and
ExP17(a) is bill of photograph. In ExP18 total six (6)
certified copies of sale deeds are marked, which are
executed by Padmanabreddy to others relating other
properties belonging to him (who are not parties in this suit).
The ExP19 is certified copy of order passed by Special
Deputy Commissioner in RP No.156/10-11. The ExP20 is
electricity bill with receipt. The EXP21 is copy of
complaint.
37. On the contrary the DW.1 marked ExD1 to ExD39.
ExD1 is the Special Power of attorney executed by the
defendant in O.S.No.16453/2006 and plaintiff in
O.S.No.6350/2009 Irfana Sharief W/o. Khaleemulla Shariff
63
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
appointing her husband Mr. Khaleemulla Shariff son of Late
Mehmood Shariff to appear on her behalf and to do any
acts, deeds in respect proceedings in both the suits. The
ExD2 is GPA dated 10/12/1993 executed by B.M. Krishna
Reddy son of Muniswamappa in favour of Khaleemulla
Shariff S/o late Mohamed Sharieff in respect of site No.21
formed out of Sy.No.10/2, situated at Ambalipura village,
Varthur Hobli, Bangalore South Taluk. The ExD3 is
affidavit executed by Sri B.M. Krishna Reddy son of
Muniswamapa, mentioning that he has received Rs.35,000/-
from Sri Khaleemulla Sharif being sale consideration in
respect of property shown in ExD2. The ExD4 is agreement
of confirmation dated 05/03/1997 executed by
Padmanabbha Reddy S/o B.M. Krishna Reddy in favour of
Sri Kaleemulla Shariff S/o late Mohammed Sharif in respect
of site bearing No.21 in Sy.No. 10/2 situated at Ambalipura
village, Varthur Hobli, Bangalore South Taluk. The ExD5 is
64
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
Form B Property Register Extract in respect of site No.21
of Ambalipura village. The ExD6 is Record of Rights of
Sy.No10/2A of Ambalipura village, wherein the name of
Irfana Sherif wiffe of Khaleemulla appear to the extent of
01.01 guntas. The ExD7 is tax paid receipt. The ExD8 is
registered absolute sale deed dated 18/06/1998 executed by
Sri B.M. Krishna Reddy S/o Muniswamappa through his
G.P.A. Khaleemulla sharif in favour of Irfana Sharif W/o
Khaleemulla Sharif in respect of property bearing
Gramathana House list No.21, Khatha No.10/2, situated at
Ambalipura village, Varthur Hobli, Bangalore South Taluk,
Bangalore. The ExD9 is encumbrance certificate from
01/04/1997 to 30/12/2003 wherein there is entry regarding
sale of GHC No.21, K.H. No.10/2 measuring 30 x 40 Ft. of
Ambalipura village by B.M. Krishna Reddy GPA Holder
Khaleemulla Sharif in favour of Irfana Sharif on
18/06/1998. ExD10 is the affidavit executed by Padmanabha
65
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
Reddy S/o B.M. Krishna Reddy stating that his father B.M
Krishna Reddy had sold the site bearing No.21, in
Sy.No.10/2, New Khatha No.10/2A, of Ambalipura village,
Varthur Hobli, Bangalore South Taluk, Bangalore through
GPA and affidavit dated 08/12/1993 to Kaleemulla Sharif
and further said Kaleemulla Sharif had sold the property in
favour of Irfana Sharief through sale deed dated 18/06/1998
and he has entered an agreement of confirmation dated
05/03/1997 after receipt of consideration that the site
property No.21 of Ambalipura measuring East to West 30
feet and North to South 40 feet is the property of Mrs. Irfana
Sharief which is sold by Kaleemulla Sharief. He further
further sworn in his affidavit that by oversight it is
mentioned a site property bearing No.15 of Ambalipura
village, Varthur Hobli is sold to Prithvi Dominic son of G.
Dominic, resident of Kammanahalli Main Road, Bangalore.
The property sold to Prithvi Dominic is site bearing No.15
66
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
and not site No.21 of Ambalipura village, Varthur Hobli.
The ExD11 to ExD15 are tax paid receipts. The ExD16 is
official memorandum issued by Bangalore Electricity
Supply Company in respect of transffer of installation to the
name of Irfan Sharif and ExD17 is electricity bill paid by
Irfana Sharif. The ExD18 is certified copy of gift deed
dated 11/04/2001 executed by B.M. Krishna Reddy S/o Late
Muniswamappa in favour of Padmanabha Reddy S/o B.M.
Krishna Reddy in respect of properties bearing site No.30,
31,13, 24, 20, 17, 23, 25 and 26 carved out of
Sy.No.10/2(6) present Sy.No.10/2A of Ambalipura village,
Varthur Hobli, Bangalore South Taluk. ExD19 is the letter
issued by Senior Sub Registrar, Bommanahalli, Bangalore
Urban District addressed to Irfana Sheriff clarifying that on
10/04/2001 under registered gift deed, out of 6 items of
properties of Ambalipura village, Varthur Hobli, item No.3
property bearing site No.20 bounded on East by sie No.21,
67
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
west by site No.19, North by Road and South by site No.17.
The ExD20 and ExD28 are copy of FIR in Cr.No.330/2014
dated 21/05/2014 registered by the HSR Lay Out P.S. for an
offences punishable u/s. 419, 420, 468, 471, 417 R/W. Sec.
34 of IPC on the complaint lodged by Irfana Sharif against
Padmanabha Reddy, Prithvi Dominic and Sindhu B. making
allegation of fraud and creating documents of site No.21
Khatha No.10/2, Ambalipura village, but, in this regard no
further documents produced by the defendant Irfana Sharif
of O.S.No.16453/2006.
38. Further ExD21 is rental agreement dated
01/02/1999 executed by Kaleemulla Sharif in favour of
Veeranna. ExD22 is rental agreement dated 115/10/2011
executed by Irfana Shariff in favour of Albert, ExD23 is the
rental agreement dated 10/08/2005 executed by Irfana
Shariff in favour of YasmenTaj, ExD24 is the tax paid
receipt, ExD25 to ExD27 are receipts for payment of
68
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
electricity bills by Irfana Shariff. ExD29 is the copy of
private complaint in PCR No.5960/2014 filed by
complainant Irfana Shariff against Padmanabha Reddy,
Prithvi Domnic and Sindhu. B. The ExD30 is rental
agreement dated 01/02/1999 entered in to between the
owner Kaleemulla sharif and Veeranna, tenant in respect of
premises No.21, situated at Bellandur Gate, Amblipura
village, Sajjapura Main Road, Bangalore. ExD31 is the
rental agreement dated 15/04/2004 entered into between
Irfana Sharief owner and Veerappa tenant in respect of
house premises bearing No.21 one portion situated at
Bellandur gate, Sarjapura Road, Ambalipura Post,
Bangalore. ExD32 to ExD38 are photographs and ExD39 is
the C.D. produced by the DW1 to show that he is in
possession of site No.21 of Ambalipura village.
39. The burden is on plaintiff in O.S.No.16453/2006
and defendant in O.S.No.6350/2009] Sindhu B that her
69
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
vendor Prithivi Domnic purchased the suit schedule
property from Padmanabha Reddy and Padmanabha Reddy
has got right to sell the suit schedule property in favour of
Prithvi Domnic. The PW.1 in her evidence contented that
Sindhu has purchased the suit schedule property from
Prithvi Domnic under sale deed dated 10/07/2006 and that
said erstwhile owner Prithvi Domnic had purchased the
same from the then owner Padmanabha Reddy and now
plaintiff Sindhu is in possession and enjoyment of the suit
schedule property. Whereas the contention of the defendant
Irfana Sheriff in O.S.No.16453/2006 is that neither the
plaintiff is the owner of the property bearing site No.21,
Khatha No.10/2A of Ambalipura village, Varthur Hobli,
Bangalore South Taluk or the plaintiff's vendor Prithvi
Dominic or his vendor Padmanabha Reddy was the owner
of the schedule property. The said property was not
bequeathed to him by his father. The owner of the said
70
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
property was B.M. Krishna Reddy, who has executed
General Power of Attorney in favour of defendant's husband
Kaleemulla Sharif on 08/12/1993 in respect of site No.21 of
Ambalipura village and the said Kaleemulla Sharif sold the
suit schedule property to Irfana Sharif [defendant in
O.S.No.16453/2006]. Hence she has become owner of the
suit schedule property. Then the burden on the plaintiff
Sindu. B. in O.S.No.16453/2006 to prove that her vendor
Prithvi Domnic had right, title over the suit schedule
property having purchased the same from its previous owner
Padmanabha Reddy.
40. The plaintiff Sindhu B. in O.S.No.16453/2006
examined in chief as PW1 twice by filing her affidavit
evidence, but she has not subjected for cross examination.
Whereas her Special of Attorney holder Maria Robart is
examined in chief as PW.1 as discussed above. The said
Maria Robart is not family member of Sindhu. B., [plaintiff
71
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
in O.S.No.16453/2006]. Further Sindhu. B is the proper
person to depose before the court to prove her title over the
suit schedule property in O.S.No.16453/2006, but she has
not led her evidence personally and subjected to cross
examination, whereas her S.P.A. holder Maria Robart has
deposed evidence as PW.1 and in cross examination PW.1
deposed that "It is true to suggest that site No.21 earlier
purchased by one Prithvi Dominic. I know about filing of
suit by said Prithvi Dominic before City Civil Court,
Bangalore against present defendant. It is true to suggest
that the said suit was withdrawn. Before purchasing
obtained encumbrance certificate and it is produced. I
know the contents of ExP9". The document reference
made in ExP9 page No.1 is executed by B.M. Krishna
Reddy in favour of Padmanabha Reddy by way of gift
deed. I have produced certified copy of the gift deed."
72
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
41. The PW.1 has denied that Padmanabha Reddy had
no saleable interest to execute ExP9. She further denied that
Padmanabha Reddy had no right to execute ExP9 sale deed.
But the plaintiff as not produced any documents to show
that Padmanabha Reddy had obtained the suit schedule
property in O.S.No.16453/2006 either by way of gift or by
way of inheritance after the death of his father B.M. Krishna
Reddy. The ExD18 is certified copy of the gift deed dated
11/04/2001 which discloses that site Nos. 30, 31,13, 24, 20,
17, 23, 25 and 26 carved out of Sy.No.10/2(6) present
Sy.No.10/2A of Ambalipura village, Varthur Hobli,
Bangalore South Taluk gifted by B.M. Krishna Reddy S/o
Late Muniswamappa in favour of Padmanabha Reddy S/o
B.M. Krishna Reddy. Hence the said Padmanabha Reddy
had not obtained site No.21 which is the suit schedule
property mentioned in O.S.No.16453/2006 under the gift
deed. It is admitted fact that Padmanabha Reddy who is son
73
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
of B.M. Krishna Reddy. As per the plaintiff in
O.S.No.16453/2006 Padmanabha Reddy was the owner of
the suit schedule property. As per the defendant also the
earlier original owner of the suit schedule property was
B.M. Krishna Reddy. Under the circumstances the plaintiff
B. Sindhu has to prove by way of oral and documentary
evidence that Padmanabha Reddy had obtained the suit
schedule property in O.S.No.16453/2006 under inheritance
after the death of his father B.M. Krishna Reddy by
producing necessary documents. But the plaintiff B. Sindhu
has not produced any documents to that effect, that to
Padmanabha Reddy had right to sell the suit schedule
property in O.S.No.16453/2006 to Prithvi Dominic and
further Prithvi Dominic had right to sell the suit schedule
property in favour of the plaintiff Sindhu. B in
O.S.No.16453/2006. Further, the plaintiff Sindhu B in
O.S.No.16453/2006 has not produced any documents i.e.,
74
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
Khata extract in respect of the suit schedule property in
O.S.No.16453/2006 to prove that on the basis of the sale
deed she has got transferred Khata in her name and she has
also not produced up to date tax paid receipts in respect of
the suit schedule property in O.S.No.16453/2006.
42. Further contention of Irfana Sharif defendant in
O.S.No.16453/2006 and plaintiff in O.S.No.6350/2009 is
that original owner of the suit schedule property was Sri
B.M.Krishna Reddy S/o Muniswamappa and he has
executed G.P.A to Kaleemulla Sharif in respect of the suit
schedule property in O.S.No.16453/2006 and in turn the
said Kaleemulla Sharieff sold the suit schedule property to
Irfana Sharief [the defendant in O.S.No.16453/2006 and
plaintiff in O.S.No.6350/2009] who is none other than wife
of the G.P.A. holder Kaleemulla Sharieff. The document
ExD2 is GPA dated 10/12/1993 alleged to have been
executed by B.M. Krishna Reddy S/o Muniswamappa in
75
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
favour of Khaleemulla Shariff son of late Mohamed Sharif,
but in the said GPA at para 3 in the schedule there are
several corrections i.e, earlier site number mentioned as 31
was deleted and there is overwriting on the same as No.21
and in the boundary column East by site No.20 was deleted
and overwritten as site No.22 and West site number was also
deleted and overwritten as site No.20 and this correction
was made on 09/12/2003 as per the endorsement made in
the said G.P.A. When the document ExD2 is suspected
document since there is correction made in the important
material i.e., schedule property, hence the burden lies upon
Irfana Sharif [defendant in O.S.No.16453/2006 and plaintiff
in O.S.No.6350/2009] to prove that the alleged G.P.A at
ExD2 by way of examining attesting witnesses as well as
Notary before whom it was executed. But, no such efforts
was made by the defendant Irfana Sharif to prove ExD2
document by leading evidence.
76
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
43. Further ExD3 is the affidavit said to have been
executed by B.M. Krishna Reddy S/o Muniswamapa,
wherein also in second para site number is mentioned as 31
was deleted and overwritten as 21 and this aspect creates
doubt. Irfana Sharif ought to have prove this document
ExD3 affidavit by way of leading evidence of Notary and
attesting witnesses. In both ExD2 and ExD3 Padmanabha
Reddy has signed as a witness. The said Padmanabha Reddy
is the material witness to depose regarding ExD2 and ExD3
since the contention of Irfana Sharif is that father of said Sri
Padmanabha Reddy namely B.M. Krishna Reddy has
executed ExD2 and ExD3. The ExD4 is agreement of
confirmation said to have been executed by Padmanabha
Reddy confirming sale of site bearing No.21 in Sy.No.10/2
situated at Ambalipura village, Varthur Hobli, Bangalore
South Taluk confirming the documents executed by his
father B.M. Krishna Reddy in favour of Kaleemulla Sharif.
77
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
Then the said Sri Padmanabha Reddy is the appropriate
person to depose regarding ExD2 to ExD4 before the Court.
But Irfana Sharif defendant in O.S.No.16453/2006 and
plaintiff in O.S.No.6350/2009 has not led the evidence of
said Padmanabha Reddy.
44. Further it is the contention of Irfana Sherriff that
Padmanabha Reddy S/o B.M. Krishna Reddy has executed
ExD10 affidavit wherein there is averment that by oversight
site property bearing No.15 of Ambalipura village, Varthur
Hobli, is sold to Sri Prithvi Dominic S/o G. Dominic,
resident of Kammanahalli Main Road, Bangalore. The
property sold to Prithvi Dominic is site bearing No.15 and
not site No.21 of Ambalipura village, Varthur Hobli. This
affidavit bears date 20/09/2006 i.e., after the lapse of more
than three years of executing ExD2 and ExD3 by Sri B.N.
Krishna Reddy. The said Padmanabha Reddy has executed
ExD10 affidavit stating that site No.15 of Ambalipura
78
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
village, Varthur Hobli sold to Sri Prithvi Dominic, but not
site No.21. Therefore Irfana Sheriff [defendant in
O.S.No.16453/2006 and plaintiff in O.S.No.6350/2009]
also failed to prove ExD2 to ExD4 and ExD10 documents
by way of leading evidence of material witnesses.
45. That as per Irfana Sheriff defendant in
O.S.No.16453/2006 and plaintiff in O.S.No.6350/2009 on
the basis of G.P.A. executed by B.N. Krishna Reddy to
Kaleemulla Sheriff the said Kalemulla Sheriff had executed
sale deed of suit schedule property in her favour on
18/06/1998 and DW.1 has marked the said sale deed as per
ExD8. But Irfana Sharif defendant in O.S.No.16453/2006
and plaintiff in O.S.No.6350/2009 has not produced any
documents i.e., Khatha certificate or Khatha Extract to show
that on the basis of the said sale deed she has got transferred
the Khatha of the property in her name and she is in
possession and enjoyment of the suit schedule property. The
79
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
said Irfana Sheriff also not produced any up to date tax paid
receipts to show that she has paid taxes in respect of the suit
schedule property. The ExD2 is alleged GPA dated
10/12/1993 executed by B.M. Krishna Reddy S/o
Muniswamappa in favour of Khaleemulla Sharif S/o late
Mohamed Sharif in respect of site No.21 formed out of
Sy.No.10/2 situated at Ambalipura village, Varthur Hobli,
Bangalore South Taluk. But Irfana Sherif has not proved
ExD2 by way of leading evidence of material witnesses,
since there is correction in respect of the suit schedule
property as 21 by rounding off site No.31. Hence ExD8
sale deed dated 18/06/1998 executed by B.M. Krishna
Reddy S/o Muniswamappa through his G.P.A. Khaleemulla
shariff in favour of Irfana Sharif W/o Khaleemulla Shariff
is not proper, since Khaleemulla Sharif has no right to sell
site No.21 of Ambalipura village, Varthur Hobli, Bangalore
South Taluk in favour of his wife Irfana Sherif on
80
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
18/06/1998. The said Kaleemulla Sheriff is examined as
GPA of defendant as DW1. In the cross examination DW.1
admits that "It is true to suggest that on 23/12/2003
Padmanabha Reddy has sold a site No.21 measuring 30 x 40
in favour of Prithvi Damnick bounded on East by site
No.22, West by site No.20, North by Road and South by Site
No.16." The DW1 in the cross examination further deposed
that "It is true to suggest that on 23/12/2003 Padmanabha
Reddy had executed sale deed in favour of Prithvi Damnick
in respect of suit schedule property. The witness voluntarily
says that without the knowledge of defendant sale deed was
came to be executed in favour of Prithvi Domnic".
46. As discussed above ExP11 certified copy of sale
deed dated 14/12/2003 discloses that Padmanabha Reddy
has sold site No.21, Khata No.10/2A situated at Ambalipura
village, Varthur Hobli, Bangalore East Taluk to Prithvi
Domnic. But ExP10 certified copy of sale deed dated
81
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
10/07/2006 executed by Prithvi Domnic in favour of Sindhu
B. discloses that Site No.21, Khata No.908 formed out of
converted Sy.No.10/2A (Vide conversion order No.
B.DIS.ALN.(E)VB/SR/221/2004-2005 Dated 19/01/2005
issued by the Deputy Commissioner, Bangalore District
situated at Ambalipur Village, Varthur Hobli, Bangalore East
Taluk, measuring East to West: 30 feet, North to South: 40
feet was sold. As per ExP9 order of the Deputy
Commissioner, Bangalore, on the application filed by
Prithvi Domnic seeking for conversion of 0-02-02 Guntas in
Sy.No.10/2A of Amblipur village, Varthur Hobli, Bangalore
East Taluk has been converted from agricultural purpose to
non agricultural purpose. Further the document ExP11
discloses that sites were already formed by Padmanabha
Reddy and sold to Prithvi Domnic and ExP9 discloses that
Prithvi Domnic has applied for conversion of agricultural
land to non agricultural purpose and in ExP10 there is
82
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
reference that Sy.No.10/2A of Ambalipur Village, Varthur
Hobli, Bangalore East Taluk, measuring East to West: 30
feet, North to South: 40 feet in all measuring 1200 square
feets has been converted vide conversion order No.
B.DIS.ALN.(E)VB/SR/221/2004-2005 Dated 19/01/2005
and the same has been sold to Sindhu B plaintiff in
O.S.No.16453/2006. Therefore it is clear from these
documents that ExP8 to ExP10 that the property sold by
Padmanabha Reddy to Prithvi Domnic and it was
agricultural land and afterwards Prithvi Domnic converted
the same and sold to Sindhu.B., The plaintiff of
O.S.No.16453/2006 contending that site No.21 of
Ambalipura village sold by Padmanabha Reddy to Prithvi
Domnic. But there is no specific document in the name of
Padmanabha Reddy as to how he acquired the suit schedule
property either by way of gift deed or by way of inheritance.
Therefore the documents produced by both the plaintiff and
83
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
defendant in both the suits clearly discloses that
Padmanabha Reddy has no right to sell the suit schedule
property in O.S.No.16453/2006 to Prithvi Domnic.
47. Therefore it is clear from the documents that even
Kaleemulla Sheriff has no right to sell the property in favour
of Irfana Sherifff since she has failed to prove ExD2 GPA
said to have been executed by B.M Krishna Reddy in
respect of site No.21 formed out of Sy.No.10/2, situated at
Ambalipura village, Varthur Hobli, Bangalore South Taluk,
because there is over writing of the site number in ExD2 as
discussed above and the same is not proved by Irfana Sheriff
defendant in O.S.No.16453/2006. Both the plaintiff and
defendants in both the suits have not produced any specific
documents to show their ownership, possession and
enjoyment over the respective suit schedule property in
both the suits as on the date of respective suits. Hence the
question of interference by defendant in O.S.No.16453/2006
84
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
to plaintiff in the said suit and also interference of defendant
in O.S.No.6350/2009 to the plaintiff in the said suit does
not arise.
48. That the defendant counsel in O.S.No.16453/2006
while arguing relied upon the decisions reported in
AIR 1994 SC 853
[S.P. Chengalvaraya Naidu V/s.
Jagannath] wherein it is held:-
Civil P.C. (5 of 1908) S. 2(2) Evidence
Act (1 of 1872) S. 44 - Proceedings in
Court - Fraud by litigant - Withholding of
vital document relevant to litigation - It is
fraud on curt - Guilty party is liable to be
thrown out at any stage - Litigant
obtaining preliminary decree for partition
of property - Not mentioning at trial as to
his having executed before filing of suit
release deed in respect of property in
favour of his employer - Decree is
vitiated by fraud"
85
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
2017(3) KCCR 2153
[Sri Shivadarshan Balse V/s. The State of
Karnataka]
C. Delay and Fraud - When fraud is
detected delay becomes inconsequential.
AIR 1965 MYS 310
[Lakshminarasimhaiah and others V/s.
Yalakki Gowda] wherein it is held :
Civil P.C. (5 of 1908) Or 39 R 2 -
Temporary injunction - Consideration of
equitable principle in grant of curt will not
help party who has not come with clean
hands"
AIR 1973 MYS 276
[Azeezulla sheriff and others V/s.
Bhabhutimu] wherein it is held
(C) Registration Act (16 of 1908) S. 47 S
49 - A compulsorily registrable sale deed
executed earlier in point of time, will when
86
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
registered, prevail over the subsequent sale
deeds even though such latter deeds were
registered at an earlier point of time.
49. he above citations referred by the counsel for
defendant in O.S.No.16453/2006 in respect of fraud by
litigant, delay and consideration of equitable principle in
grant of temporary injunction, as discussed above and also
on the aspect of sale deed executed earlier in point of time
prevail over the subsequent sale deeds and the above said
respected citations are not applicable to the present case on
hand and hence the same are not considered.
50. Further the defendant counsel in
O.S.No.16453/2006 relied upon the decision reported in
AIR 2009 SC 2966
[T.K. Mohammed Abubucker V/s. P.S.M.
Ahmed Abdul Khader and others]
"(C) Evidence Act (1 of 1872) S.101, suit
for declaration of title and possession -
87
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
Burden of proof is on plaintiff to make out
his title and entitlement to possession - He
cannot succeed on any alleged weakness in
title or possession of defendant"
2004(1) KCCR 662
[K. Gopala Reddy by LRs V/s.
Suryanarayana and others] wherein it is
held:
"B. PLEADING AND PROOF - Whenever
a party approaches the Court for a relief,
based on the pleadings and issues, he has to
prove his case. A suit has to be decided
based on merits and demerits of the party
who approaches the Court, Weakness of the
defendant cannot be considered as a trump
card for the plaintiff.
(2007)6 SCC 737
[Ramchandra Sakharam Mahajan V/s.
Damodar Trimbak Tanksale] wherein it is
held:-
88
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
A. Specific Relief Act, 1963 - Sec. 5 and 34
- Recovery of possession on strength of title
- Burden of proof on plaintiff - Effect of
weakness of defence or failure of defendant
to establish rival title set up by them.
AIR 2001 Gauhathi 181
[R.K. Madhuryyajit Singh and another V/s.
Takhellambam abung Singh and others]
wherein it is held:-
Evidence Act (1 of 1872) S. 101 - burden
of proof - Suit for declaration of title - He
must prove his title and cannot take
advantage of weakness of defendant.
Specific Relief Act (47 of 1963) S. 34.
(2014)2 SCC 269
[Union of India and Others V/s. Vasavi Co
Operative Housing Society Ltd and Others]
wherein it is held as under:-
A. Specific Relief Act, 1963- Sec 34 and 5
-Suit for declaration of title and possession
-The burden of proof in case of -
Reiterated, burden is on the plaintiff to
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Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
establish its case, irrespective of whether
defendants prove their case or not -In
absence of establishment of its own title,
the plaintiff must be non suited even if title
set up by defendants is fond against them -
Weakness of case set up by defendants
cannot be a ground to grant relief to
plaintiff - Evidence Act, 1873 Sec 101 to
103.
51. As discussed above the plaintiff and defendant in
in both the suits have failed to prove their possession and
enjoyment over the suit schedule property. The citations
referred by defendant of OS.No.16453/2006 are not
applicable to the present case on hand. The plaintiff of both
the suits failed to prove their title and possession over the
suit schedule property by way of material evidence of the
witnesses of sale deed and gift deed and GPA as discussed
above. Even the plaintiff and defendant of both the suits
have not personally ventured to enter into the witness box to
90
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
depose evidence before the court relating to defence taken in
the respective suits. Therefore the plaintiffs have failed to
prove their possession and enjoyment over the suit schedule
property as on the date of the suits and also failed to prove
alleged interference against them in both the suits.
Therefore the plaintiff in O.S.No.16453/2006 failed to
prove Issues No.1 and 3 and Addl. Issue No.1 to 3 hence she
is not entitle for the relief claimed in the suit and on the
contrary the plaintiff in O.S.No.6350/2009 failed to prove
her possession and enjoyment over the suit schedule
property as on the date of the suit and the defendant caused
interference to her possession and she is also not entitled for
the relief of permanent injunction as prayed. Therefore the
plaintiff of O.S.No.16453/2006 failed to prove Issues No.1
to 3 and Addl. Issue No.1 to 3 and the plaintiff in O.S.No.
6350/2009 failed to prove issue No.1 to 3. Therefore I
answer Issues No.1 to 3 and Addl. Issue No.1 to 3 in
91
Common Judgment O.S.No.16453/2006
C/w O.S.No.6350/2009
OS.No.16453/2006 in Negative and I answer Issues No.1
to 3 in OS.No.6350/2009 in Negative.
52. Issue No.4 in OS.No.16453/2006 & Issue No.4 in
OS.No.6350/2009:
In view of above discussion I proceed to pass following:
:ORDER:
The suit of the plaintiff in O.S.No.16453/2006 is hereby dismissed.
The suit of the plaintiff in O.S.No.6350/2009 is hereby dismissed.
There is no order regarding costs.
Draw decree accordingly.
Keep original of this common judgment in O.S.No.16453/2006 and certified copy in O.S.No.6350/2009.
(Dictated to the Judgment Writer, transcribed and typed by him, then taken printout, corrected, signed and pronounced by me in the open court on this the 29th day of July 2020).
(Smt.Suvarna K. Mirji) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT : BANGALORE 92 Common Judgment O.S.No.16453/2006 C/w O.S.No.6350/2009 :ANNEXURE:
WITNESSES EXAMINED FOR PLAINTIFF IN O.S.No. 16453/2006 & DEFENDANT IN OS No.6350/2009:
PW1 Maria Robart DOCUMENTS MARKED FOR THE PLAINTIFF IN O.S.No. 16453/2006 & DEFENDANT IN OS No.6350/2009:
ExP1 Special Power of Attorney ExP2 GPA executed by original plaintiff in favour of Krishnareddy and GPA executed by Krishnareddy in favour of Padmanabha Reddy.
ExP3 Encumbrance certificate ExP4 Copy of mortgage deed issued by the Bank ExP5 Electricity bills three in numbers ExP6 Tax paid receipts six in numbers ExP7 Building plan and license ExP8 Tax demand register extract ExP9 Copy of conversion order ExP10 Copy of sale deed dated 10/07/2006 ExP11 copy of the sale deed dated 14/12/2003 ExP12 copy of the endorsement and challan issued by Bangalore Development Authority 93 Common Judgment O.S.No.16453/2006 C/w O.S.No.6350/2009 ExP13 Copy of mutation order two numbers ExP14 Copy of RTC extracts in respect of Sy.No.10/2, 10/2A(9 nos) ExP15 Certified copy of the settlement register ExP16 Certified copy of survey sketch ExP17 Photograph Ex.P17(a) Bill of ExP16 ExP18 Sale deeds six numbers Ex.P19 Certified copy of the orders passed by the Special D.C. in R.P.156/10-11 Ex.P20 Electricity bill with receipt Ex.P21 Copy of complaint.
WITNESSES EXAMINED FOR THE DEFENDANT/S:
DW1 Kaleemulla Sharif DOCUMENTS MARKED FOR THE DEFENDANT/S:
ExD1 Special Power of Attorney
ExD2 G.P.A.
ExD3 Affidavit
ExD4 Agreement of confirmation
ExD5 Khatha certificate
ExD6 RTC
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ExD7 Receipt
ExD8 Sale deed
ExD9 Encumbrance certificate
ExD10 Affidavit
ExD11 to 15 Receipts
ExD16 Official Memorandum
ExD17 Electricity bills
ExD18 Gift deed
ExD19 Certificate
ExD20 Attested copy of FIR
ExD21 to 23 Rental agreement ExD24 Receipt ExD25 to 27 Electricity Receipts ExD28 Copy of FIR ExD29 Certified copy complaint ExD30 & 31 Rental agreements ExD32 to 38 Photos ExD39 CD XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT : BANGALORE 95 Common Judgment O.S.No.16453/2006 C/w O.S.No.6350/2009 29/07/2020 OS No.16453/2006 P - YNS D - NRN For Jt C/w. OS 6350/2009 OS No. 6350/2009 P - NRN D 1- VMS For Jt C/w. 16453/2006 Judgment pronounced in the open court (Vide separate detailed Judgment) The suit of the plaintiff in O.S.No.16453/2006 is hereby dismissed.
The suit of the plaintiff in O.S.No.6350/2009 is hereby dismissed.
There is no order regarding costs.
Draw decree accordingly.
Keep original of this common judgment in O.S.No.16453/2006 and certified copy in O.S.No.6350/2009.
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE