Bangalore District Court
Venugopal S vs Shakunthala on 13 August, 2024
KABC010116962016
[
IN THE COURT OF THE XXVII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-9) AT BENGALURU.
Dated this the 13th day of August, 2024.
PRESENT:
Sri HAREESHA A., B.A., LL.B.,
XXVII Additional City Civil and Sessions Judge,
Bengaluru.
ORIGINAL SUIT No.3705/2016
PLAINTIFFS : 1. S. Venugopal,
S/o. Late. Subramanya @ Subramani,
Aged about 57 years, Dead
by LR's
1a. Kumuda,
W/o. Late. S. Venugopal,
Aged about 48 years,
1b. Suresh V.
S/o. Late. S. Venugopal,
Aged about 24 years,
1c. V. Pavithra,
D/o. Late. S. Venugopal,
Aged about 24 years,
2. S. Mani,
S/o. Late. Subramani,
Aged about 48 years,
Since Mentally retired
person [unsound person]
Represented by 1st plaintiff.
Cont'd..
-2- O.S. No.3705/2016
All are Residing at No.L-59,
9th Cross, L.N. Puram,
Bengaluru 21.
(By Sri S.G.V., Advocate)
-VERSUS-
DEFENDANTS : 1. Shakunthala,
W/o. Kashi,
Aged about 72 years,
2. B.N. Geetha,
W/o. Murthy,
Aged about 33 years,
D/I/L of Kashi & Mrs.
Shakunthala.
Both are Residing at
th
No.540/B, 4 Block,
Rajajinagar, Bengaluru-10.
3. Smt. V. Shanthi,
W/o. Veera Raghavan,
Aged about 53 years,
Residing at Katpadi Taluk,
Vellur District, Tamil Nadu.
4. Kum. K. Vasanthi,
D/o. Veera Raghavan,
Aged about 40 years,
Residing at No.540/B, 42nd
Cross, 4th Block,
Rajajinagar, Bengaluru-10.
(D.1 & 2 By Sri D.G.V., Advocate)
(D.3 & 4 By Sri B.G.T., Advocate)
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Date of Institution of the Suit : 19-05-2016
Nature of the Suit : Declaration and
Possession Suit.
Cont'd..
-3- O.S. No.3705/2016
Date of the commencement : 27-02-2019
of recording of the evidence
Date on which the Judgment : 13-08-2024
was pronounced
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Year/s Month/s Day/s
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Total duration : 8 year/s, 2 months, 25 days.
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(HAREESHA A.)
XXVII Additional City Civil and Sessions Judge,
Bengaluru.
JUDGMENT
The plaintiff has instituted the present suit for the following reliefs;
"A] To declare that the Plaintiffs are the absolute owners in respect of suit Schedule Property.
B] To declare that the Sale Deeds dtd: 14.02.1975 document No.6257/74-75, and Sale Deeds dtd: 14.02.1975 documents No.6258/74-75 are null and void.
C] To declare the Gift Deed dtd:27.11.2006 documents No.RJN- 1-04597-06-07 C.D.No.R.JND99 and Rectification Deed dtd:20.01.2007 Documents No.RJN-1-05828- 2006-07 CD No.RJND102 registered in the Cont'd..
-4- O.S. No.3705/2016
office of the Sub-Registrar, Rajajinagar,
Bengaluru, are null and void.
C[a]. To declare that the Gift Deed dtd:29.05.2015 registered as document No.YPR-1- 01250/2015-16 stored in C.D.No.YPRD116, registered in the office of the Sub-Registrar, Rajajinagar, [Yeshwanthpur], Bengaluru is null and void.
D] To direct the Defendants to demolish the constructions of building put up on the suit property.
E) To direct the Defendant to handover the physical possession of the suit Schedule Property in favour of Plaintiffs.
F) and pass such other reliefs."
2. The plaintiff's contentions, summarized succinctly, are as follows:
The subject matter of the suit is the property bearing old No.534, New No.17, measuring East to West 25 feet and North to South 48 feet, located at 4th Block, 43rd Cross, Rajajinagar, Bengaluru, as more fully described in the schedule annexed to the plaint (hereinafter referred to as the "suit schedule property").
Cont'd..
-5- O.S. No.3705/2016
3. The plaintiffs have asserted that the Government of Karnataka, through the Karnataka Labour Housing Corporation, allotted the suit schedule property to the plaintiff's father, the late Subramanya @ Subramani, under a special scheme announced by the Government. This allotment was made through a hire purchase agreement dated 22.08.1958, pursuant to the conditions laid down in G.O No.LLH.218, HOS.57 and G.O.H. LLH.67 GHS 59 dated 07.03.1960. Since the date of the grant, the plaintiff's grand father was in peaceful possession and enjoyment of the suit schedule property as its absolute owner. The plaintiff's father passed away on 07.02.1975, leaving the plaintiffs to inherit his estate.
4. The plaintiff has alleged that the husband of the 1st defendant, namely Kashi, who was also an employee of Minerva Mill and a close friend of the plaintiff's father, was allotted site No.540/B under the same government scheme. The plaintiff further alleges that, knowing about the death of Subramanya @ Subramani, said Kashi misrepresented himself as the deceased Cont'd..
-6- O.S. No.3705/2016 Subramanya @ Subramani and appeared before the Karnataka Housing Board, where he fraudulently registered a Sale Deed in respect of site No.534, originally allotted to the late Subramanya @ Subramani. On the same day, Kashi allegedly executed another Sale Deed in respect of same property bearing No.6258/74- 75, purporting it to be in favor of 1st defendant. The plaintiff alleged that, the said Sale Deed is in violation of the non-alienation clause imposed by the Government at the time of granting the plot. Further, on 25.05.1990, Kashi allegedly continued his misrepresentation before the Karnataka Housing Board and obtained a Confirmation Deed in his favor. The plaintiff asserts that the defendants, based on forged and fabricated documents, attempted to interfere with the plaintiff's peaceful possession and enjoyment of the property. Upon approaching the Karnataka Housing Board, the plaintiff discovered the fraudulent creation of these documents. The plaintiff subsequently obtained the death certificate of their father, confirming that Subramanya @ Subramani had passed away on Cont'd..
-7- O.S. No.3705/2016 07.02.1975, long before the date of alleged Sale Deed and Confirmation Deed.
5. The plaintiff further alleges that the defendants, relying on the forged Sale Deed and Gift Deed, have illegally constructed structures on the suit schedule property. Consequently, on 26.03.2008, the plaintiff filed a suit in O.S No.2277/2008 against the defendants seeking permanent and mandatory injunctions. However, this suit was dismissed on the grounds that the plaintiff had not sought the cancellation of the Sale Deeds and Gift Deed and that the suit was not maintainable without seeking a declaration of ownership and possession. Subsequently, the plaintiff filed a private complaint before the IV ACMM, Bengaluru, against the defendants and the deceased Kashi, for offenses punishable under Sections 34, 418, 404, 420, 471, 415, 416, 463, and 464 of the IPC. The learned magistrate referred the matter for investigation under Section 156(3) of the Cr.P.C., resulting in the registration of an FIR in Crime No.206/2013 against the defendants and the late Kashi.
Cont'd..
-8- O.S. No.3705/2016 Therefore, the present suit has been filed seeking the aforementioned reliefs.
6. Upon being served with the summons, Defendants No. 1 and 2 entered their appearance through counsel and filed a common written statement, refuting the allegations made in the plaint. They contended that the plaintiff's father, Subramanya @ Subramani, had executed a registered Sale Deed on 14.02.1975, in favor of Defendant No. 1, rendering the present suit, filed after a lapse of four decades, an abuse of the legal process and barred by limitation. Further, they argued that the plaintiff's previous suit in O.S. No. 2277/2008 was dismissed due to the plaintiff's lack of possession and enjoyment of the suit property. Defendants No. 1 and 2 denied allegations regarding fabrication of documents and specifically asserted that Subramanya @ Subramani was alive at the time of the Sale Deed's execution and passed away on 05.06.1990, contradicting the plaintiff's claim of 07.02.1975. They also contended that, based on a Gift Deed dated November 27, 2006, executed by Defendant No. 1 in Cont'd..
-9- O.S. No.3705/2016 favor of Defendant No. 2, the property's katha was mutated in Defendant No. 2's name, and they have since been in possession and enjoyment of the property as absolute owners. Defendants No. 1 and 2 alleged that the plaintiff, by suppressing facts and truth, obtained a death certificate from BBMP, falsely claiming Subramanya @ Subramani's death on 07,02.1975, which contradicts the plaintiff's admissions in the earlier suit O.S. No. 2277/2008, where they acknowledged Subramanya @ Subramani's death on 05.06.1990. Consequently, Defendants No. 1 and 2 sought dismissal of the suit with costs.
7. Defendants No. 3 and 4 filed their common written statement, echoing the contentions made by Defendants No. 1 and 2, and sought dismissal of the suit with exemplary costs.
8. In light of the rival pleadings, my predecessor in office initially framed issues, and subsequently issue No.2 rephrased as follows:
Cont'd..
- 10 - O.S. No.3705/2016
ISSUES
1. Whether the plaintiffs prove that they were the absolute owners of the suit schedule property?
2. Whether the plaintiffs prove that the alleged Sale Deed dated:14.02.1975 are null and void and not binding on the plaintiff? [Recasted]
3. Whether the plaintiffs prove that the alleged Gift Deed dated:27.11.2006 and Rectification Deed dated:29.01.2007 are null and void and not binding on the plaintiff?
4. Whether the plaintiffs prove that the defendants have illegally put up construction in the suit schedule property?
5. Whether the plaintiffs are entitled to the physical possession of suit schedule property from the defendants?
6. Whether the defendant No.1 and 2 proves that the suit of the Cont'd..
- 11 - O.S. No.3705/2016 plaintiff is barred by principles of res-judicata?
7. Whether the defendants prove that, the suit is bad for want of cause of action?
8. Whether the suit is barred by limitation?
9. Whether the defendants prove that they were the owners of the suit schedule property and in possession of the same? [Deleted]
10. Whether the plaintiffs prove that they were entitled to the relief as they claimed?
11.What order or decree?
RECASED ISSUE NO.2
1. Whether the plaintiff proves that, the Sale Deed dated:10.02.1975 is a fabricated document and obtained by impersonation?
9. In order to substantiate the claim, the plaintiff No.1(b) got examined as PW.1 and he has produced 57 Cont'd..
- 12 - O.S. No.3705/2016 documents in his affidavit which are marked as Ex.P.1 to P.57. On behalf of defendants, Special Power of Attorney for the defendants got examined as DW.1 and got marked voluminous documents as per Ex.D.1 to D.76.
10. I have heard the arguments and perused the entire evidence adduced by the plaintiffs and defendants in support of their rival contention.
11. My findings on the above Issues are as under -
ISSUE No.1 - In the Negative;
RECASTED ISSUE No.2 - In the Negative; ISSUE No.3 - In the Negative;
ISSUE No.4 - In the Negative ISSUE No.5 - In the Negative;
ISSUE No.6 - In the Affirmative;
ISSUE No.7 - In the Affirmative;
ISSUE No.8 - In the Affirmative;
ISSUE No.9 - Deleted;
ISSUE No.10 - In the Negative;
Cont'd..
- 13 - O.S. No.3705/2016
ISSUE No.11 - As per final order,
for the following -
REASONS
12. ISSUES No.1 AND RECASTED ISSUE NO.2: For the sake of coherence and efficiency, these points are consolidated for simultaneous discussion, thereby minimizing redundancy in presentation.
The plaintiff's case hinges on the contention that the suit schedule property was allotted by the Karnataka Housing Board under a special scheme for industrial workers of Binny Mill, Bengaluru, where the husband of the 1st defendant, namely Kashi, was employed and acquainted with the plaintiff's father, Subramanya @ Subramani. The plaintiff alleges that after Subramanya's death on 07.02.1975, Kashi impersonated him to obtain a Sale Deed dated 14.02.1975) and Confirmation Deed dated 25.05.1990, thereby illegally gaining possession of the property. The plaintiff further claims that Kashi subsequently executed a registered Sale Deed dated November 27, 2006 in favor of Defendant No. 1, who then executed a Cont'd..
- 14 - O.S. No.3705/2016 registered Gift Deed dated November 27, 2006 in favor of Defendant No. 2.
13. The crux of the plaintiff's case revolves around the allegations of fraud, specifically that the Confirmation Deed and Sale Deed were obtained by the husband of the 1st defendant after the death of Subramanya @ Subramani through impersonation. Therefore, the foundation of the plaintiff's case is built on these allegations of fraud and the contention that the Sale Deed and Confirmation Deed were executed in the name of the deceased Subramanya @ Subramani. During the trial, Plaintiff No. 1(b) testified as PW.1, reiterating the plaint averments and producing voluminous documents as per Ex.P.1 to P.57. On behalf of the defendants, the Special Power of Attorney holder testified as DW.1, reiterating the written statement averments and produced documents as per Ex.D.1 to D.76.
14. In order to succeed in this case, the plaintiffs must establish that, as of the dates of the Sale Deed dated 14.02.1975 and the Confirmation Deed dated Cont'd..
- 15 - O.S. No.3705/2016 25.05.1990, Subramanya @ Subramani was not alive. Specifically, the plaintiffs need to prove that Subramanya @ Subramani passed away on 07.02.1975, thereby supporting their claim that the aforementioned documents were obtained by Kashi through impersonation.
15. To substantiate the date of death of Subramanya @ Subramani, the plaintiffs have produced a death certificate dated 23.03.2013, marked as Ex.P.1, which indicates that the death was registered on 19.03.2013 following an order by the VIII ACMM, Bengaluru, in Crl.Misc No.1839/2013. However, the plaintiffs have not presented any additional documents to corroborate the exact date of Subramanya @ Subramani's death.
16. In contrast, in an earlier suit filed by the plaintiffs in O.S No.2277/2008, dated 20.03.2008, for the relief of permanent and mandatory injunction in respect of suit schedule property, the plaintiffs averred that the date of death of Subramanya @ Subramani was 05.06.1990. The defendants have produced the pleadings from Cont'd..
- 16 - O.S. No.3705/2016
O.S No.2277/2008, marked as Ex.D.3, where in
paragraph 8 of the plaint, the plaintiffs explicitly stated that Subramanya died on 05.06.1990. They further asserted that after his death, the plaintiffs, as legal heirs, continued in joint possession and enjoyment of the suit schedule property. Moreover, an affidavit filed by the plaintiffs' father, late S. Veenugopal, during his chief examination in the aforementioned suit, is marked as Ex.D.5. Notably, even in this evidence, the plaintiffs deposed that Subramanya @ Subramani passed away on 05.06.1990, leaving behind them as legal heirs to succeed his estate.
17. It is a well-established principle of law that admissions made in prior suits, whether in pleadings or evidence, can be considered as strong evidence to prove the admitted facts in subsequent suit. Given the admissions made by the father of plaintiff No.1(a) to (c), late S. Veenugopal, regarding the date of death of Subramanya @ Subramani in the earlier suit, the evidentiary value of Ex.P.1 must be carefully scrutinized. Ex.P.1, the death certificate, was obtained based on an order from the Cont'd..
- 17 - O.S. No.3705/2016 learned magistrate in Crl.Misc No.1839/2013 after the dismissal of the earlier suit in O.S No.2277/2008. This sequence suggests that the document was created to bolster a new case. The law is clear that birth and death certificates obtained long after the event, particularly on the basis of sworn statements made in such proceedings, do not constitute conclusive proof of birth or death. In the instant case, the statement made by late Venugopala before the learned magistrate in Crl.Misc No.1839/2013 to obtain the death cirtificate apparently contrary to the plea and evidence given by him in O.S. No. 2277/2008 as per Ex.D.5. The principle of Post Litem Motam applies to documents that come into existence after litigation has commenced.
18. It is essential to note that O.S No.2277/2008 was filed by the plaintiffs on 26.03.2008 came to be dismissed on 30.08.2013, as per the judgment and decree marked as Ex.D.2. While the principle of Post Litem Motam literally applies to the documents produced during litigation, it is reasonable to extend this principle to documents created after the conclusion of first round of litigation to Cont'd..
- 18 - O.S. No.3705/2016 prevent the misuse of the justice delivery system. In Kalka Parshad v. Mathura Parshad1 reported the Privy Council refused to accept a pedigree which was of the year 1892 because the controversy had originated in the year 1891, that is to say, a year before the pedigree was filed. In this connection, commenting on the genealogy relied upon by the plaintiff Their Lordships observed as follows:
"Taking them in the reverse order, the last is inadmissible, having been made post litem motam.... In order to make the statement inadmissible on this ground, the same thing must be in controversy before and after the statement is made."
In Dolgobinda Paricha v. Nimai Charan Misra2 the Hon'ble Apex Court held that the statement in question was admissible because it was made before the question in dispute had arisen. In other words, the Court held that in the facts and circumstances of that case the statement and the pedigree relied upon were made ante 1ILR (1908) 30 All 510 2AIR 1959 SC 914 : 1959 Supp 2 SCR 814 : 1960 SCJ 879 Cont'd..
- 19 - O.S. No.3705/2016 litem motam and not post litem motam, for if the latter had been the case, the document would have become inadmissible and in this connection the Apex court observed thus:
"That being the position, the statements as to pedigree contained in Ex. I were made before the precise question in dispute in the present litigation had arisen."
19. In State of Bihar v. Radha Krishna Singh,3 the Hon'ble Apex Court has summarized the ratio and the principles as follows:
"(1) A judgment in rem e.g. judgments or orders passed in admiralty, probate proceedings, etc., would always be admissible irrespective of whether they are inter partes or not.
(2) Judgments in personam not inter partes are not at all admissible in evidence except for the three purposes mentioned above.
3(1983) 3 SCC 118 at page 171 Cont'd..
- 20 - O.S. No.3705/2016 (3) On a parity of aforesaid reasoning, the recitals in a judgment like findings given in appreciation of evidence made or arguments or genealogies referred to in the judgment would be wholly inadmissible in a case where neither the plaintiff nor the defendant were parties.
(4) The probative value of documents which, however ancient they may be, do not disclose sources of their information or have not achieved sufficient notoriety is precious little. (5) Statements, declarations or depositions, etc., would not be admissible if they are post litem motam." (underlined by me)
20. In this context, considering the ratio laid down in the aforesaid decisions, I am of the view that, the documents created after the dismissal of O.S No.2277/2008 may be considered as Post Litem Motam documents. In contrast, the admissions made by the plaintiffs in the earlier suit, categorized as Ante Litem Motam, carry greater evidentiary weight.
Cont'd..
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21. Apart from that, it is crucial to note that the plaintiffs have not substantiated their claim regarding the death date of Subramanya @ Subramani as on 07.02.1975. The document relied upon by the plaintiffs, marked as Ex.P.1, a death certificate obtained on the basis of a sworn self-declaration does not conclusively establish the date of death. The absence of supporting documentation, such as records of retirement benefits or pension payments from Binny Mill, where Subramanya @ Subramani was employed, further weakens the plaintiffs' case. Without such evidence, the date of death asserted by the plaintiffs remains unverified.
22. On the other hand, the defendants have presented a series of registered documents that support their claim of title and possession. Ex.D.7, a Deed of Declaration and Confirmation dated 25.05.1990, evidences Subramanya's personal appearance before the Sub- Registrar, Rajajinagar. Similarly, Ex.D.9 contains Subramanya's signature acknowledging receipt of an agreement copy from the Karnataka Housing Board.
Cont'd..
- 22 - O.S. No.3705/2016
Ex.D.66 is the original Sale Agreement dated
19.09.1973, executed by Subramanya in favor of Kashi, the husband of the 1st defendant. Ex.D.74 and Ex.D.75 are the original Sale Deeds dated 03.02.1975 and 14.02.1975, respectively, demonstrating the transfer of the suit schedule property to the 1st defendant for a consideration of Rs.15,000/-.
23. The counsel for plaintiffs has argued that the rapid succession of these transactions, particularly the execution of the Sale Deed within 11 days of the preceding sale, raises suspicions about the authenticity of the documents. However, there is no legal prohibition against executing such transactions within a short period after obtaining title and registration. The duties imposed on the Sub-Registrar do not include conducting an inquiry into the title of the executant, and the mere proximity of these transactions in time does not render them inherently dubious. Therefore, the contention regarding the legitimacy of these documents, based solely on the timing of their execution, is insufficient to cast doubt on their validity.
Cont'd..
- 23 - O.S. No.3705/2016
24. The learned counsel for the plaintiff has strongly argued that the Sale Deed dated 14.02.1975, executed in favor of defendant No.1, was in violation of the non-alienation period stipulated in the grant conditions, rendering the sale illegal and incapable of conferring any lawful title to defendant No.1. The plaintiff's counsel emphasized that clauses 2 to 4 of the Sale Deed dated 03.02.1975 are particularly significant. These clauses explicitly prohibit the conveyance of the property by way of sale, gift, exchange, mortgage, or any other interest, as well as the right to lease or license the property, to anyone other than the Karnataka Housing Board. Additionally, the property could only be let to an industrial worker with prior written permission from the Karnataka Housing Board. However, the defendants have produced a certified copy of the Deed of Declaration and Confirmation dated 15.05.1990, in which the Secretary of the Karnataka Housing Board, Bengaluru, after considering the circumstances particularly the fact that the property had been granted approximately 25 years earlier and that the full value of the property had been paid, deleted clauses 2, 3, and 5 of the Sale Deed, Cont'd..
- 24 - O.S. No.3705/2016 thereby permitting the vendee to transfer the property. In my considered opinion, while a property alienated in violation of the grant conditions may be subject to cancellation of allotement by the authority that allotted the site, the individual who transferred the property in breach of these conditions cannot be allowed to benefit from such wrongful actions. However, in light of the Deed of Declaration and Confirmation executed by the Karnataka Housing Board, Bengaluru, the plaintiff's argument that the Sale Deed is void due to a violation of the grant conditions cannot be sustained. Therefore, after careful consideration, I find that the plaintiff has failed to prove ownership of the suit schedule property or that the Sale Deed dated 14.02.1975 is a fabricated document, as alleged. Consequently, I am compelled to answer Issue No.1 and Recasted Issue No.2 in the Negative.
25. ISSUE No.6 : The learned counsel for defendant Nos. 1 and 2 has vehemently argued that Issue Nos. 1 and 2 have already been decided by the V Additional City Civil Judge, Bengaluru, in O.S. No. 2277/2008, through a Cont'd..
- 25 - O.S. No.3705/2016 judgment and decree dated 30.08.2012. Consequently, the present suit is barred by the principles of res judicata. In the previous suit, plaintiff No. 2 and the father of plaintiffs No. 1(a) to (c), the late Venugopal, filed a case concerning the suit schedule property against the defendants, seeking relief in the nature of a permanent and mandatory injunction. This suit was dismissed by the V Additional City Civil Judge, Bengaluru, in the judgment dated 30.08.2012. The following issues were framed in that suit:
"1. Whether the plaintiff proves that they are the owners of the suit property?
2. Whether the plaintiffs further prove that the defendants have put up illegal permanent structure in the southern portion of the suit property ?
3. Whether the defendants prove that they have perfected the title over the suit property by way of adverse possession ?
4. Whether plaintiffs are entitled for reliefs claimed in the suit ?"
Cont'd..
- 26 - O.S. No.3705/2016
26. In the present suit, on the basis of pleadings of the rival parties, my predecessor in office has framed the Issue No.1 and 4 as below;
1. Whether the plaintiff proves that they were the absolute owners of the suit schedule property?
2. Whether the plaintiff prove that, the defendants have illegally put up construction in the suit schedule property? The issues framed in the present suit have already been adjudicated in O.S. No. 2277/2008 against plaintiff No. 2 and the father of plaintiffs No. 1(a) to (c). Section 11 of the Code of Civil Procedure, 1908, enshrines the doctrine of res judicata, which is articulated as follows:
"Section 11. Res judicata: No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court".
Cont'd..
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27. This section prevents the re-litigation of issues that have already been conclusively settled between the same parties or their legal representatives in a previous suit. Consequently, since the issues in the present suit have been previously decided in O.S. No. 2277/2008, the current suit is barred by the principles of res judicata. The plaintiffs are claiming title through late. S. Venugopal and plaintiff No.2 who were the plaintiffs in O.S No.2277/2008. The court having competency to try the suit decided above issues against the plaintiffs therein, therefore, I am of the view that the said findings is binding on the plaintiffs. The learned counsel for the plaintiff has contended that, since the above findings were recorded in the suit for bare injunction, that cannot be considered as res judicata. In my view, when issues related to the title, incidentally adjudged in a suit for bare injunction, in a subsequent suit, the findings on the issues in earlier suit is binding and the principles of res judicata is applies in such cases. Therefore, I am of the view that the suit of the plaintiff is also barred by principles of res judicata. Therefore, I constrained to answer Issue No.6 in the Affirmative.
Cont'd..
- 28 - O.S. No.3705/2016 28. ISSUES No.3 TO 5 AND 7 : As discussed earlier on
Issues No. 1 and 2, the plaintiffs have failed to establish that the Sale Deed, through which defendant No. 1 claims title, is a fabricated document. In light of the Sale Deed executed by the plaintiff's deceased father late Subramanya @ Subramani as per Ex.D.75 and the Confirmation Deed Ex.D.7, defendant No. 1 has lawfully acquired title to the suit schedule property. Further, by virtue of the Gift Deed executed in favor of defendant No. 2, defendant No. 2 has also derived a lawful title to the property. Considering that Issue No. 2 has already been adjudicated by the V Additional City Civil Judge, Bengaluru, in O.S. No. 2277/2008, Issue No. 4 must similarly be answered in the negative, against the plaintiff. Since the plaintiff has failed to prove title over the suit schedule property, they are not entitled to possession. Additionally, given the alienation of the suit schedule property by the original grantee, late Subramanya @ Subramani, the plaintiff No. 1(a) to (c), being the grandchildren, and plaintiff No. 2, being the son, have failed to substantiate their claim. Accordingly, Cont'd..
- 29 - O.S. No.3705/2016 Issues No. 3 to 5 are answered in the negative, and Issue No. 7 is answered in the affirmative.
29. ISSUE No.8 : In O.S No. 2277/2008, the plaintiffs claimed possession and enjoyment of the suit schedule property, alleging that the defendants had commenced construction on the property. The plaintiffs contended that, as of February 2008, the defendants had partially constructed a building on the suit schedule property. However, the Sale Deed dated 14.02.1975 (Ex.D.75) indicates that possession of the suit schedule property was handed over to defendant No. 1 at the time of its execution. The documents presented by the defendants further support their claim of possession. For instance, Ex.D.70 and Ex.D.71, the Identity Cards issued by the Election Commission of India on 31.05.2002, list the address as House No. 534, situated at 7th Main Road, 4th Block, Rajajinagar, Bengaluru, which is the suit schedule property. Additionally, the Encumbrance Certificates Ex.D.60 and Ex.D.61 are shows that an entry was made in the register about the Sale Deed executed by Subramanya @ Subramani in favor of Cont'd..
- 30 - O.S. No.3705/2016 defendant No. 1, and the khata was accordingly mutated in the name of defendant No. 1. Moreover, demand notices from the Bengaluru Water Supply and Sewerage Board (Ex.D.44 to Ex.D.58) demonstrate that water connection to the suit schedule property was obtained in 2003. Ex.D.41 shows that the defendants have been paying electricity bills since 2005 for the connection to the building constructed on the suit schedule property. The khata certificate and tax paid receipts produced by the plaintiffs also indicate that the defendants have been in possession and enjoyment of the suit schedule property since the date of the Sale Deed.
30. In O.S No. 2277/2008, although the plaintiffs alleged that the defendants had constructed a building on the suit schedule property, they did not seek recovery of possession in that suit. The present suit, filed on 19.05.2016, seeks a declaration regarding the documents. While the Limitation Act provides that the limitation period begins from the date of knowledge regarding executionof document to seek declaration, a Cont'd..
- 31 - O.S. No.3705/2016 suit for possession must be filed within 12 years from the date of dispossession. In the cross-examination of PW.1, it was admitted that neither the father of PW.1 nor PW.1 himself had been in possession of the suit schedule property for the past 39 years. It was further revealed that the whereabouts of plaintiff No. 2, who was claimed to be in possession, were unknown for 10 years and that he was a mentally retarded person.
31. The admissions made by PW.1 regarding the continuous possession of the defendants over the suit schedule property for 39 years are sufficient to conclude that the plaintiffs' claim is barred by limitation. Moreover, PW.1 categorically admitted during cross-examination that, since 1975, defendant No. 1 has been in possession of the suit schedule property after obtaining khata and revenue records in her name. These clear admissions render the plaintiffs' claim hopelessly barred by limitation. Therefore, I am constrained to answer Issue No. 8 in the Affirmative.
Cont'd..
- 32 - O.S. No.3705/2016
32. ISSUE No.10: For the aforesaid reasons and discussion, I am of the view that the plaintiffs not entitled for any of the reliefs sought in the suit. According, I answered Issue No.10 in the Negative.
33. ISSUE No11 : For the aforesaid reasons and discussion, I proceed to pass the following -
ORDER Suit of the plaintiffs' is dismissed with cost.
Draw decree accordingly.
(Dictated to the Stenographer Grade-III, transcribed by her, revised by me and after corrections, pronounced in open Court on this the 13th day of August, 2024.) (HARESHA. A) XXVII Additional City Civil and Sessions Judge, Bengaluru.
ANNEXURE
1. WITNESS EXAMINED FOR THE PLAINTIFFS:
Examined on:
P.W.1 : Suresh V. 27-02-2019
2. DOCUMENTS MARKED ON BEHALF OF PLAINTIFFS:
Ex.P1 Death certificate of Subramani.
Ex.P2 Certified copy of Sale Deed Cont'd..
- 33 - O.S. No.3705/2016
dated:14.2.1975.
Ex.P3 Certified copy of Gift Deed
dated:27.11.2006.
Ex.P4 Certified copy of Rectification
dated:29.1.2007.
Ex.P5 Certified copy of deposition of D.W.1 in
CC.No.1603/2016.
Ex.P6 Certified copy of deposition of C.W.7 in
CC.No.1603/2016.
Ex.P7 Certified copy of deposition of C.W.5 in
CC.No.1603/2016.
Ex.P8 Certified copy of deposition of C.W.8 in
CC.No.1603/2016.
Ex.P9 Certified copy of deposition of C.W.4 in
CC.No.1603/2016.
Ex.P10 Certified copy of private complaint
No.19188/2013.
Ex.P11 Certified copy of FIR in Cr.No.14337/13.
Ex.P12 Certified copy of statement of one Sri Kannivelu in Cr.No.14337/13.
Ex.P13 Certified copy of statement of one Sri Ravivarma in Cr.No.14337/17.
Ex.P14 Certified copy of death certificate of Subramani.
Ex.P15 Certified copy of Sale Deed dated 14.02.1975.
Ex.P16 Certified copy of Sale Deed dated 14.02.1975.
Cont'd..
- 34 - O.S. No.3705/2016 Ex.P17 Certified copy of Deed of Declaration and Confirmation dated 15th May,1990. Ex.P18 Certified copy of Gift Deed dated 27.11.2006.
Ex.P19 Certified copy of application for allotment of house.
Ex.P20 Certified copy of intimation letter. Ex.P21 Certified copy of application for allotment of house.
Ex.P22 Certified copy of the Letter dated 13.11.1957.
Ex.P23 Certified copy of the Letter dated 12.05.1961.
Ex.P24 Certified copy of the Letter dated 10.12.1962.
Ex.P25 Certified copy of report sheet dated 10.06.1965.
Ex.P26 Certified copy of particulars of allottee. Ex.P27 Certified copy of endorsement dated 24.01.1967.
Ex.P28 Certified copy of memo dated 18.05.2007. Ex.P29 Certified copy of the Letter issued by Chairman Mysore Housing Board to Subramani.
Ex.P30 Certified copy of the Letter dated 14.02.1972.
Ex.P31 Certified copy of the Letter dated 14.02.1972.
Cont'd..
- 35 - O.S. No.3705/2016 Ex.P32 Certified copy of service certificate dated 31.03.1969.
Ex.P33 Certified copy of particulars of allottee. Ex.P34 Certified copy of the Letter dated 28.03.1974.
Ex.P35 Certified copy of the Memo dated 17.04.1974.
Ex.P36 Certified copy of inspection of house along with the memo.
Ex.P37 Certified copy of the Letter dated 13.05.1974 along with the endorsement. Ex.P38 Certified copy of Endorsement dated 30.10.1974.
Ex.P39 Certified copy of the letter of Assistant Executive Engineer issued to Subramani. Ex.P40 Certified copy of letter dated 15.05.1990. Ex.P41 Certified copy of Deed of Declaration and Confirmation.
Ex.P42 Certified copy of the Letter dated 04.05.1990.
Ex.P43 Certified copy of the Letter dated 20.01.1975.
Ex.P44 Certified copy of the Letter issued by Subramani to the Housing Commissioner.
Ex.P45 Certified copy of the Sale Deed in case of the retired allottees.
Ex.P46 Certified copy of the sale deed.
Cont'd..
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Ex.P47 Certified copy of Endorsement dated
30.10.1974.
Ex.P48 Certified copy of the Letter dated
02.12.2013.
Ex.P49 Certified copy of the letter issued by the
Sub-Registrar to the Police Inspector Rajajinagar dated 13.11.2013.
Ex.P50 Certified copy of encumbrance certificate. Ex.P51 Certified copy of Deed of Declaration and Confirmation.
Ex.P52 Certified copy of the Gift Deed dated 27.11.2006.
Ex.P53 Certified copy of the sale deed dated 14.02.1975.
Ex.P54 Certified copy of the letter dated 09.12.2013 .
Ex.P55 Certified copy of death certificate of Subramani.
Ex.P56 Certified copy of judgment in CC.No.1603/16.
Ex.P57 Certified copy of deposition of C.W.7.
3. WITNESS/ES EXAMINED FOR THE DEFENDANTS:
Examined on:
D.W.1 : Murthy 07-02-2020
4.DOCUMENT/S MARKED ON BEHALF OF DEFENDANTS:
Ex.D1 Special Power of Attorney.
Cont'd..
- 37 - O.S. No.3705/2016
Ex.D2 Certified copy of the Judgment in O.S No.
2277/2008.
Ex.D3 Certified copy of plaint in O.S No.
2277/2008.
Ex.D4 Written Statement in O.S No. 2277/2008.
Ex.D5 Certified copy of the depositions of PW1
in O.S No. 2277/2008.
Ex.D6 Certified copy of depositions of DW1 in
O.S No. 2277/2008.
Ex.D7 Certified copy of deed of declaration and
confirmation dt. 25.05.1990.
Ex.D8 Certified copy of the Authorization letter
dated: 22.02.2012.
Ex.D9 Certified copy of the Note Sheet.
Ex.D10 Certified copy of intimation of allotment.
Ex.D11 Certified copy of Deed of Declaration and Confirmation.
Ex.D12 Certified copy of General Power of Attorney.
Ex.D13 Certified copy of the Sale Deed dated:
14.02.1975.
Ex.D14 Certified copy of Gift Deed dated:
27.11.2006.
Ex.D15 Certified copy of the Rectification Deed dated: 29.01.2007 Ex.D16 Certified copy of the property card. Ex.D17 Certified copy of the extract of field book.
Cont'd..
- 38 - O.S. No.3705/2016 Ex.D18 Certified copy of the khata book. Ex.D19 Certified copy of the Endorsement issued
by the Corporation City of Bangalore. Ex.D20 Certified copy of khata extract. Ex.D21 Certified copy of the khata certificate. Exs.D22 Certified copy of the Revenue receipt to 25 Ex.D26 Certified copy of the notice issued by the BBMP with regard to the payment of tax. Ex.D27 Certified copy of the Revenue receipt to 33 Ex.D 34 Certified copy of intimation letter issued by the BBMP dated: 28.01.2002.
Ex.D35 Endorsement issued by the KEB dated:
11.06.1977.
Ex.D36 Certified copy of the Electricity demand to 43 bills and receipts.
Ex.D44 Certified copy of the BWSSB bills. to 58 Ex.D59 Certified copy of the receipt issued by the Bangalore One.
Ex.D60 Certified copy of Encumbrance
to 61 Certificate.
Ex.D62 Certified copy of judgment in
C.C.No.1603/2016.
Ex.D63 Certified copy of Gift Deed
dated:29.05.2015.
Ex.D64 Certified copy of petition under Section
13(3) of the Karnataka Registration of Cont'd..
- 39 - O.S. No.3705/2016 Birth and Death Act, 1969 in C.Misc No.1839/2013.
Ex.D65 Synopsis in RFA No.2030/2012.
Ex.D66 Original Sale Agreement
dated:19.9.1976.
Exs.D67 Notarized copies of Adhar Cards. to D69 ExD70 Notarized copies of Voter ID Cards. to D72 Ex.D73 Certified copy of Ration Card. Ex.D74 Original Sale Deed dated:3.2.1975. Ex.D75 Original Sale Deed dated:14.2.1975. Ex.D76 Certified copy of Judgment in RFA No.2020/2012.
(HAREESHA A.) XXVII Additional City Civil and Sessions Judge, Bengaluru.
Cont'd..