Bangalore District Court
Smt. J. Manjula vs Sri. M.S. Ananthamurthy on 11 February, 2015
IN THE COURT OF THE VIII ADDITIONAL CITY CIVIL &
SESSIONS JUDGE (CCH :15) AT BENGALURU CITY
DATED THIS THE 21ST DAY OF JUNE 2014
PRESENT:
SHRI.MASTER R.K.G.M.M. MAHASWAMIJI,
M.A., LL.B.,
VIII Additional City Civil & Sessions Judge,
Bangalore
ORIGINAL SUIT NO.133/2007
C/W
O.S.4045/2008
BETWEEN
PLAINTIFF: SMT. J. MANJULA
Aged about 26 years,
In O.S. No. 133/2007 W/o Sri. E. Janardhan,
R/at No.1668/3,
Shivaramalingaiah Layout,
K.K.Halli, St. Thomas Town Post,
Bangalore-560084.
(By Sri. T.C. Prabhakar Advocate)
AND:
DEFENDANTS: 1. SRI. M.S. ANANTHAMURTHY
Age : Major,
Father's name not known,
R/at No.1959, South End 'C'
Cross, 9th Block, Jayanagar,
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O.S.4045/2008
Bangalore-560 069.
2. SRI. A. MANOHAR
Age : Major,
S/o Sri. M.S. Ananthamurthy,
R/at No.1959, South End 'C'
Cross, 9th Block, Jayanagar,
Bangalore-560 069.
(By Sri. S.A. Padmanabha, Advocate)
Date of institution of the suit: 04.01.2007
Nature of suit: Injunction suit
Date of commencement of 09.04.2010
Recording the evidence:
Date on which the judgment 21.06.2014
Was pronounced:
Total Duration : 7-years, 5-Months & 17-Days
*****
In O.S.No.4045/2008
PLAINTIFF: SRI. A. MANOHAR
Aged about 44 years,
S/o Sri. M.S. Ananthamurthy,
Represented by his GPA holder
Sri. M.S.Ananthamurthy,
R/at No.1959, South End 'C'
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O.S.4045/2008
Cross, 9th Block, Jayanagar,
Bangalore-560 069.
(By Sri. A.B. Harkunikar Advocate)
AND:
DEFENDANTS: 1. SMT. SUBBAMMA
Aged about 55 years,
W/o Late Sri. Muniyappa
2. SRI. DODDA VAJRAPPA
Aged about 45 years,
Adopted son of Late
Sri. Muniyappa and
Smt. Subbamma
3. SRI. MUDDURAPPA
Aged about 35 years,
Son of late Sri. Muniyappa
4. SRI. MUNIYAPPA
Aged about 33 years,
Son of late Sri. Muniyappa
5. SRI. CHIKKAVAJRAPPA
Aged about 31 years,
W/o Late Sri. Muniyappa
6. SRI. KUMAR URF VAJRA
KUMAR, Aged about 27 years,
S/o Late Sri. Muniyappa
Nos.1 to 6 are residing at
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O.S.4045/2008
Chunchaghatta Village,
Uttarahalli Hobli,
Bangalore South Taluk.
7. SMT. S. SREENIVASULU
Aged about 59 years,
S/o Late Sri. Venkatachari,
R/at No.298, 1st Cross,
Sarvabhoumanagar Main Road,
Chikkallasandra,
Bangalore-560 061.
8. SMT. C. ROOPAVATHI
W/o Sri. G. Chokkalingam,
Since deceased, by LRs
(a) Sri. G. Chokkalingam
Aged about 60 years,
Father's name not known to
the plaintiff.
(b) Sri. C. Saravana
Major,
Son of Sri. G. Chokkalingam
(c) Sri. C. Shankar
Major
Son of Sri. G. Chokkalingam,
All of them residing at No.12,
1st Cross, 1st Main,
Kaverinagar,
Bangalore-560085
9. SMT. J. MANJULA
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O.S.4045/2008
Aged about 27 years,
W/o Sri. E. Janardhan,
R/at No.1668/3,
Shivaramlingaiah Layout,
K.K.Halli, St. Thomas Town
Post, Bangalore-560084.
(D.1 to D.7 placed ex-parte)
(By Sri. M.Prabhakar, Advocate
for D8(a) to (c) & D9)
Date of institution of the suit: 23.06.2008
Nature of suit: Declaration &
Possession
Date of commencement of -
Recording the evidence:
Date on which the judgment 21.06.2014
Was pronounced:
Total Duration : 5-years, 11-Months &
28-Days
*****
COMMON JUDGMENT
Since, these two suits are between the same parties and
for some of the similar aspects and issues and since, the
suit properties are one and the same, they are clubbed
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O.S.4045/2008
together for convenience and disposed off by this common
judgement.
O.S. 133/2007, wherein the plaintiff-J. Manjula has
filed this suit against the defendant No.1 - M. S.
Ananthamurthy and the defendant No.2 - A. Manohar
praying to grant permanent injunction restraining the
defendants or anybody else acting under them from
interfering in any manner with peaceful possession and
enjoyment of suit schedule property of the plaintiff with
costs.
O.S. 4045/2008, wherein the plaintiff- Sri. A.
Manohar this suit against the defendant No.1 to 8 and
defendant No.9 Smt. J. Manjula praying to declare that the
alleged sale deed dtd. 21.03.2003 executed by defendant
No.1-Smt. Subbamma and defendant No.2 to 6 in favour of
defendant No.7- Sri. S. Srinivasulu as illegal, null and void;
and to declare the ostensible sale deed dtd. 29.09.2003
executed by S. Srinivasulu in favour of defendant No.8 -
Smt. C. Roopavathi as illegal null and void; and to declare
the gift deed dtd. 06.12.2004 executed by defendant No.8
Smt. C. Roopavathi in favour of defendant No.9 Smt. J.
Manjula as illegal, null and void and not binding on the
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plaintiff and further to declare that the plaintiff is absolute
owner of suit property and direct the defendant to handover
vacant physical possession of the suit property to the
plaintiff and further to hold an enquiry for mesne profits,
from the period 29.09.2003 to until delivery of possession
with costs.
COMMON SUIT SCHEDULE PROPERTY
All the piece and parcel of the property bearing site No.10,
Khata No.1210, Assessment No.55/1, measuring East to
West: 30 ft. and North to South: 37 ft. + 39 ft. /2 (38 ft.),
(40.6 ft. + 42.3 ft. / 2) situated at Chunchaghatta Village,
Uttarahalli Hobli, Bangalore South Taluk and bounded on
East by : Site No.11,
West by : Site No.9,
North by : Road,
South by : Private property
2. The case of the plaintiff - Smt. J. Manjula in
O.S.133/2007 in brief is as under:
It is stated that the plaintiff's mother Smt. C.
Roopavathi was the absolute owner of suit property, having
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purchased the same under registered sale deed dated
29.09.2003 from Srinivasulu and she got Khata (Tax
demand register) and paid taxes and obtained Encumbrance
Certificate.
It is further stated that Smt. C. Roopavathi gifted the
suit property in favour of the plaintiff under registered gift
deed dtd. 06.12.2004 and since then, the plaintiff is in
lawful possession and enjoyment of suit property by
transferring Khata in her name and paying taxes.
It is pleaded that the plaintiff has constructed a small
house in the suit property and on 02.01.2007, the
defendant, without any manner of right, title and interest
over the suit property, came and interfered with the suit
property along with his men to knock of the suit property.
The plaintiff approached Subramanyapura Police
Station; but they informed to approach the civil court; since
the matter is civil in nature.
Hence, this plaintiff has constrained to file this suit
praying above relief
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3. On receipt of suit summons, the defendants 1 & 2
entered appearance through their common counsel and
defendant No.1 has filed written statement contending
interalia as under;
He denied all the averments made in the plaint, as
baseless and false, except specifically admitted.
It is stated that the plaintiff has obtained water and
electricity connection by misleading the concerned authority;
there is no cause of action; suit is not maintainable.
It is contended that the vendor of the plaintiff's mother
has not got valid title; suit is bad for non joinder of
necessary parties. On 02.01.2007, when defendants' father
M.S. Ananthamurthy was on casual round towards suit
property and astonished, when he has seen that the plaintiff
has illegally trespassed having the provision of amenities of
water and electricity; and on 02.01.2007, he has filed a
police complaint; but the police advised to file a suit.
The defendant further contended that he is owner of
suit property acquired and purchased it for valuable
consideration through a valid and binding absolute sale dtd.
01.04.1998. The notarized irrevocable general power of
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O.S.4045/2008
attorney dtd. 04.01.1986 executed by Muniyappa @
Ruttappa in favour of his attorney Smt. A. Saraswathi as full
and final settlement of Rs. 10,250/- sale agreement dtd.
04.04.1986 amply testify the transfer of vested interest by
sale and handing over vacant possession of suit property.
The plaintiff has thrown the defendant unlawfully and
further letting out the same on month rent to the tenant.
Therefore, it is prayed to dismiss the suit against the
defendants with exemplary costs.
The defendant No.2 has adopted written statement
filed by the defendant No.1 by filing a memo to that
effect.
4. On the basis of the above pleadings of the parties,
the following issues have been framed in O.S. 133/2007
for consideration and decision:
ISSUES
1) Whether the plaintiff proves that she is in lawful
possession and enjoyment of suit schedule
property as on the date of the suit?
2) Whether the plaintiff proves the alleged
interference(by the defendants)?
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O.S.4045/2008
3) Whether the plaintiff is entitled to permanent
injunction as sought?
4) What order or decree?
5. The case of the plaintiff - Sri. A. Manohar in
O.S. No.4045/2008 in brief is as under :
The plaintiff is the absolute owner of suit property
with one square Mangalore tiled roof house, having
purchased it from Sri. Muniyappa @ Ruttappa for a
valuable consideration through his GPA holder Smt. A.
Saraswathi under registered sale deed dtd. 01.04.1988
and Khata is also changed in his name and he is in lawful
and peaceful possession and enjoyment of suit property
by paying taxes to the concerned authority.
It is further stated that there is notarized
irrevocable GPA dtd. 04.04.1986 executed by Muniyappa
@ Ruttappa in favour of Smt. A. Saraswathi and sale
agreement dtd. 04.04.1986 with the receipt of full
payment of entire sale consideration of Rs.10,250/-
through cheques drawn on Syndicate Bank is also there.
As such, the LRs of Muniyappa had lost their title and
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O.S.4045/2008
right over the property; but his LRs, defendant No.1 to 6
have executed sale deed on 23.03.2003 in favour of
defendants' vendor S. Srinivasulu under registered sale
deed.
It is pleaded that the plaintiff went to Singapore on
job and during his absence, his father using to visit suit
property till December 2004 and thereafter, he did not
visit the suit property on account of his ill health and old
age. By taking such circumstances, the defendant No.7 -
S. Srinivasulu sold the suit property in favour of
defendant No.8 Smt. C. Roopavathi and then she gifted
the suit property to her daughter Smt. J. Manjula
(defendant No.9) under registered gift deed dtd.
06.12.2004, without the knowledge of plaintiff and the
defendants got the Khata changed to their names quickly
in succession.
It is further pleaded that on 02.01.2007, when the
plaintiff's father visited the suit property, he saw that a
stranger was in occupation of house and he has lodged a
police complaint and the police issued endorsement
advising the plaintiff to approach civil court. On seeing
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such developments, the defendant hurriedly filed a bare
injunction suit in O.S.133/2007.
It is averred that the cause of action to the suit
arose on 21.03.2003, when very first bogus sale deed was
executed by defendant No.1 to 6 in favour of defendant
No.7 and then on 29.09.2003 and on 06.12.2004.
Hence the plaintiff has filed this suit praying above
reliefs
6. On receipt of suit summons, the defendant No. 1
to 7 did not enter appearance; although they are duly
served and therefore they are placed ex-parte.
7. Whereas, the LRs of defendant No.8 and
defendant No.9 entered appearance through their counsel
and the defendant No.9 has filed written statement
contending interalia as below:
The defendant No.9 denied all the plaint averments
except specifically admitted.
It is contended that suit is not maintainable; frivolous
and vexatious; there is no cause of action.
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It is further contended that the plaintiff's mother Smt.
C. Roopavathi was the absolute owner of suit property,
having purchased the same under registered sale deed dated
29.09.2003 from Srinivasulu and she got Khata (Tax
demand register) and paid taxes and obtained Encumbrance
Certificate and Smt. C. Roopavathi gifted the suit property in
favour of the defendant No.9 under registered gift deed dtd.
06.12.2004 and since then, the defendant No.9 is in lawful
possession and enjoyment of suit property by transferring
Khata in her name and paying taxes and she also
constructed a small house in the suit property and on
02.01.2007, the plaintiff, without any manner of right, title
and interest over the suit property, came and interfered with
the suit property along with his men to knock of the suit
property and the defendant No.9 and her mother approached
Subramanyapura P.S. on 02.01.2007 and the police
informed to approach the civil court.
It is further contended that thereafter, 9th defendant
has filed a suit for permanent injunction in respect of suit
property. The plaintiff has created some documents and he
has not come to the court with clean hands and plaintiff has
suppressed real facts.
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Therefore, it is prayed to dismiss the suit of the
plaintiff in O.S.4045/2008 with exemplary costs.
8. On the basis of the above pleadings of the parties,
the following issues have been framed in O.S. 4045/2008
for consideration and decision:
ISSUES
1) Whether plaintiff proves that he is an absolute
owner of suit property for valuable
consideration?
2) Whether plaintiff proves that the defendants-1 to
6 have executed registered sale deed on
21.03.2003 in favour of defendant No.7 illegally?
3) Whether plaintiff proves that the alleged sale
deed dtd. 21.03.2003 is null and void?
4) Whether plaintiff proves that the sale deed dtd.
29.09.2003 alleged to be executed by defendant
No.7 in favour of defendant No.8 is null and
void?
5) Whether plaintiff proves that the gift deed dtd.
06.12.2004 executed by defendant No.8 in favour
of defendant No.9 is illegal, null and void and
not binding on plaintiff?
6) Whether plaintiff is entitled for possession of suit
property?
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7) Whether plaintiff is entitled for reliefs sought
for?
8) Whether defendant No.9 proves that defendant
No.8 had valid title over suit property and she
has executed gift deed in her favour on
06.12.2004?
9) Whether defendant No.9 proves that the court
fee paid is not proper?
10) Whether plaintiff is entitled for the relief sought
for?
11) What order or decree?
Since the O.S. 133/2007 and 4045/2008 are clubbed
together, the common evidence is led in O.S. 133/2007
and it is the main case.
9. In order to prove the case the plaintiff - Smt. J.
Manjula in O.S.133/2007 and the defendant No.9 in O.S.
4045/2008 has led evidence by examining herself as P.W.1
and produced and got marked the documents as Ex.P.1 to
Ex.P.15 and closed her side.
10. On the other hand, in order to prove the case,
the plaintiff - A. Manohar in O.S.4045/2008 and the
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defendant No. 2 in O.S.133/2007 has led the evidence by
examining his GPA holder and the defendant No.1 in
O.S.133/2007 as D.W.1(M.S.Ananthamurthy) and D.W.2 -
S.B.Chandrashekar, a Notary; D.W.3 - Sukumaran, a
relative of S.C. Narasimha shetty, attesting witness to sale
agreement; and D.W.4 - A. Saraswathi W/o M.S.
Ananthamurthy and produced the documents and got
marked them as Ex.D.1 to D.23 and closed the side.
I heard the arguments of both sides and perused the
oral and documentary evidence on record.
11. My findings on the issues in O.S.133/2007 are as
under:
Issue No.1 - In the Affirmative;
Issue No.2 - In the Affirmative;
Issue No.3 - In the Affirmative ;
Issue No.4 - As per final order
for the following:
12. My findings on issues in O.S.4045/2008 are as
under:
Issue No.1 - In the Negative;
Issue No.2 - In the Negative;
Issue No.3 - In the Negative;
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Issue No.4 - In the Negative;
Issue No.5 - In the Negative;
Issue No.6 - In the Negative;
Issue No.7 & 10 - In the Negative;
Issue No.8 - In the Affirmative;
Issue No.9 - In the Negative;
Issue No.11 - As per final order
for the following:
REASONS
13. Issue No.1 to 3 in O.S. 133/2007 and Issue No.1
to 8 in O.S. 4045/2008: Since these issues are
inter-linked, they are taken up together for joint
consideration to avoid repetitions.
It is the case of plaintiff in O.S.133/2007 that her
mother Smt. Roopavathi had gift the suit property in favour
of plaintiff and she is in lawful possession and enjoyment of
suit property as on the date of this suit and the defendants
are interfering with her possession.
14. It is the case of plaintiff in O.S. 4045/2008 that he
is the absolute owner of suit property purchased for valuable
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consideration and the defendant No.1 to 6 have executed
registered sale deed on 21.03.2003 in favour of defendant
No.7 illegally and that sale deed dtd. 21.03.2003 and the
sale deed dtd. 29.03.2003 alleged to be executed by
defendant No.7 in favour of defendant No.8 and the gift deed
dtd. 06.12.2004 executed by defendant No.8 in favour of
defendant No.9 are illegal and null and void and not binding
on the plaintiff and he is entitled for recovery of possession
of suit property.
15. In order to substantiate the case, the plaintiff -
Smt. J. Manjula in O.S.133/2007 and the defendant No.9 in
O.S. 4045/2008 has led evidence by examining herself as
P.W.1 and produced and got marked the documents as
Ex.P.1 to Ex.P.15.
16. P.W. 1 Smt. J. Manjula, the plaintiff in
O.S.133/2007 and the defendant No.9 in O.S.4045/2008,
she stated on her affidavit evidence by reiterating her plaint
and her written statement in counter case.
In the cross-examination of P.W.1 made by learned
counsel appearing for rival party, it is noticed that as on the
date of the suit, the suit property is in occupation of her
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tenant since from 2006. Her tenant informed her stating
that 1st defendant was came near the suit property and
questioned, as to why you are residing in this house? And
thereafter the plaintiff has lodged a complaint against 1st
defendant - M. S. Ananthamurthy.
She stated that the tenant used to pay the rent to her
elder brother; and her father entered rent agreement. She
identified the photo Ex.D.9 in which, a compound with
property is appearing.
On reading of entire evidence of P.W.1, I find no any
worthmentioning material to disbelieve the evidence of P.W.1
17. Now, let me to discuss about the documents
relied by the plaintiff(Smt. J. Manjula) in this case i.e.
Ex.P.1 to 15.
Ex.P.1 - Registered sale deed dtd. 21.03.2003,
which shows that Smt. Subbamma, Sri. Dodda vajrappa,
Sri. Maddurappa, Sri. Muniyappa, Sri. Chikka Vajrappa and
Sri. Kumar @ Vajra kumar, the vendors have executed this
sale deed in favour of purchaser Sri. S. Srinivasalu by
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taking consideration of Rs.76,000/- in respect of suit
property and handed over physical possession of the
property.
Ex.P.2 - Registered sale deed dtd. 29.09.2003, on
perusal, it is seen that it is executed by Sri. S. Srinivasulu,
the vendor in favour of purchaser Smt. C. Roopavathi by
taking consideration of Rs.90,000/- in respect of suit
property and handed over physical possession of the
property.
Ex.P.3 - Registered gift deed dtd. 06.12.2004, on
perusal, it is seen that it is executed by Smt. C. Roopavathi,
the donor, in favour of her daughter, donee, Smt. J. Manjula
in respect of suit property.
Ex.P.4 - Encumbrance certificate for the year 2004,
which reveals that Smt.C. Roopavathi, the mother of
plaintiff has executed gift deed in favour of Smt. J. Manjula
in respect of suit property along with 1 sq. AC sheet roofed
house.
Ex.P.5 - Encumbrance certificate for the year 2003,
which reveals that Sri. S. Srinivasulu has sold the suit
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property in favour of C. Roopavathi in respect of suit
property.
Ex.P.6 - Tax Demand Register extract for the year
2003-04, which discloses that it is changed in the name of
Smt. C. Roopavathi in respect of suit property and her name
is appearing under owner/occupant column.
Ex.P.7 - Self declaration of property tax particulars;
Ex.P.8 - Tax paid receipt; Ex.P.9 - Tax paid challan;
Ex.P.10 - Tax paid challan; Ex.P.11 - Self declaration of
property tax particulars for the year 2005-06, which
disclose that Smt. C. Roopavathi and then Smt. Manjula
have paid tax in respect of suit property.
Ex.P.12 - Water tax bill; Ex.P.13 Water tax receipt,
which go to show that the plaintiff has taken water
connection to the suit property and have paid water tax.
Ex.P.14 - Endorsement dtd. 02.01.2007 issued by
Subramanyapura P.S., advising the plaintiff to approach
civil court.
Ex.P.15 - Death Certificate of Muniyappa dt.
10.02.1997.
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From the above documents of plaintiff, it is crystal
clear that the plaintiff is donee of the suit property from her
mother and she is in lawful possession.
18. On contrary, in order to establish the case, the
plaintiff - A. Manohar in O.S.4045/2008 and the defendant
No. 2 in O.S.133/2007 has led the evidence by examining
his GPA holder and the defendant No.1 in O.S.133/2007 as
D.W.1(M.S.Ananthamurthy) and D.W.2 -
S.B.Chandrashekar, a Notary; D.W.3 - Sukumaran, a
relative of S.C. Narasimha shetty, attesting witness to sale
agreement; and D.W.4 - A. Saraswathi W/o M.S.
Ananthamurthy and produced the documents and got
marked them as Ex.D.1 to Ex.D.23.
19. D.W.1 - M.S. Ananthamurthy, he stated on his
affidavit evidence by reiterating the concerned plaint and
concerned written statement.
In the cross-examination of D.W.1 made by counsel for
rival party, it is noticed that two days prior to 01.04.1998,
D.W.1 went to Sub-Registrar office and came to know that,
revenue site was being registered.
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He did not make attempt to know as to whether at the
time of registration of sale deed, the Muniyappa was alive or
not.
He admitted that Ex.P.15 is death certificate of said
Muniyappa and according to said death certificate, the
Muniyappa died on 30.01.1997; but he denied the
suggestion that his wife was not having power to execute
sale deed on 01.04.1998.
He stated in the cross-examination that on 21.03.2003,
the LRs of Muniyappa have sold the suit property with mala
fide intention. He also admitted that Srinivasulu might have
been executed sale deed on 29.09.2003 in favour of plaintiff's
mother C. Roopavathi and likewise said Roopavathi might
have been executed gift deed in favour of plaintiff on
06.12.2004.
He also admitted stating that the electricity and water
connection might have been taken by the plaintiff to the
house and in the house, the tenant of the plaintiff is
residing.
20. D.W.2 - S.B. Chandrashekar, Notary, he deposed
that during April 1986, he was working as Notary in
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Bangalore Metropolitan area and had an office in Taluk office
compound.
He further deposed that the Ex.D.4 general power of
attorney 04.04.1986 is executed by Muniyappa @ Ruttappa
in favour of Smt. A. Saraswathi and he signed the document
and put the Notary seal along with Notary stamp. The
relevant page No.60 in Notary Register at Sl. No.1905 is
marked at Ex.D.22(a).
In the cross-examination of D.W.2 made by the
counsel for rival party, it is noticed that he cannot
remember in respect of which property, said GPA was
executed. He did not used to read entire document.
21. D.W.3 - Sukumaran, he deposed that Smt.
Saraswathi took him in the year 1995 to see a site situated
at Chunchanaghatta in Kanakapura Road and went to
Muniyappa and paid Rs.5,000/- in advance through cheque
towards sale agreement and thereafter, Ruttappa had shown
site No.10 and on 04.04.1986, the agreement of sale by
paying remaining amount of Rs.5,250/- through cheque was
executed. He identified Ex.D.5 sale agreement and LTM of
said Muniyappa @ Ruttappa and put his signature as per
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Ex.D.5(b) and his father in law S.C. Narasimha Setty was
also put his signature as per Ex.D.5(c). He stated that said
Narasimha Setty is died in the year 2009.
In the cross-examination of D.W.3 made by the
counsel for rival party, it is noticed that he cannot say the
boundaries of site No.10 measuring 30 x 40 ft. He cannot
say the age of Muniyappa at the time of execution of sale
agreement.
22. D.W.4 -Smt. A. Saraswathi, she stated on her
affidavit evidence stating that she came in contact with
Muniyappa @ Ruttappa, when she was in search of
residential site. After negotiation total sale price was fixed at
Rs.10,250/- and 20.05.1985, a sum of Rs.5,000/- was paid
as earnest money through cheque and balance amount of
Rs.5,250/- was also paid and got executed sale agreement
and an irrevocable GPA on 04.04.1986 and handed over
vacant possession of the schedule property to her.
She further stated that she sold the very same
schedule site to A. Manohar as GPA holder of Sri.
Muniyappa @ Ruttappa for valuable consideration under
registered sale deed dtd. 01.04.1998.
27
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O.S.4045/2008
In the cross-examination of D.W.4 made by the
counsel for rival party, it is noticed that she cannot
remember at what point of time said documents were
prepared. She answered stating that they were visiting the
site frequently till 2007 to the question that was there any
difficulty for you to build a house in the suit property and to
reside, if possession of said site was given in the year 1986
itself.
She admitted that Muniyappa was died on 30.01.1997.
23. Now, let me to proceed to discuss the documents
relied by the defendants in this case i.e. Ex.D.1 to D.23
Ex.D.1 - Notarized General power of attorney dtd.
23.01.2007; Ex.D.20 - Original General power of
attorney dtd. 23.01.2007 executed by A. Manohar
authorizing D.W.1 M.S. Anthamurthy to conduct this
case.
Ex.D.2 - Mutation Register extract, it discloses that
in the Chunchanaghatta village, Sy.No.51/1, the sites
are formed and sold and wherein houses are built
and there is no permission to register Khata.
28
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O.S.4045/2008
Ex.D.3 - RTC extract in the respect of 55/1,
mentioning that Muniyappa is the owner of the said
land.
Ex.D.4 - General power of attorney dtd.
04.04.1986, on perusal it shows that Muniyappa @
Ruttappa has executed this document in favour of
Smt. A. Saraswathi in respect of suit property.
Ex.D.5 - Sale agreement dtd. 04.04.1986, on
perusal it shows that Muniyappa @ Ruttappa has
executed this document in favour of Smt. A.
Saraswathi in respect of suit property by taking
Rs.10,250/- towards full sale consideration.
Ex.D.6 - Sale deed dtd. 01.04.1998, on perusal, it
is seen that it is executed by Smt. A. Saraswathi as
GPA holder Sri. Muniyappa @ Ruttappa in favour of
her son Sr. A. Manohar by taking sale consideration
of Rs.84,000/- in respect of suit property.
Ex.D.7 - Demand Register extract for the year
1998-99, it is shows name of A. Manohar.
29
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O.S.4045/2008
Ex.D.8 - Tax paid receipt for year 1998-99.
Ex.D.9 - Photo; Ex.D.10 - Negative of suit
property.
Ex.D.11 & 12 - Encumbrance Certificates in
respect of suit property.
Ex.D.13 - Certified copy of sale deed dtd.
03.06.1991; Ex.D.14 - Certified copy of sale deed
dtd. 23.11.1991; Ex.D.15 - Certified copy of sale
deed dtd. 20.01.1992; Ex.D.16 - Certified copy of
sale deed dtd. 20.01.1992; Ex.D.17 - Certified
copy of sale deed dtd. 10.02.1998; Ex.D.18 -
Certified copy of sale deed dtd. 13.02.1998;
Ex.D.19 - Certified copy of sale deed dtd.
14.02.1998;
Ex.D.21 - Revenue layout plan,
Ex.D.22 - Notary Register
Ex.D.23 - Death certificate of Narasimha shetty
(another attesting witness).
30
O.S.133/2007 C/W
O.S.4045/2008
The evidence of D.W.1 to 4 are not free from infirmities
and contradictions, therefore their evidence is not inspiring
confidence.
24. In so far as Issue No.1 in O.S.133/2007
regarding lawful possession of plaintiff Smt. J. Manjula is
concerned, it is admitted that at present plaintiff Smt. J.
Manjula is in possession of suit property. Moreover,
defendants have also sought for recovery of possession, it
clearly shows that Smt. J. Manjula is in possession of suit
property. Further, the Ex.P.2 registered sale deed
dtd.29.09.2003 goes to show that Smt. C.Roopavathi, the
mother of plaintiff Smt. J. Manjula has purchased the suit
property from 7th defendant S. Srinivasulu for consideration
and then, she has gifted a suit property in favour of this
plaintiff under gift deed dtd. 06.12.2004. Under these facts
and circumstances, it is inevitable to hold and record my
findings on this issue in Affirmative.
25. In so far as Issue No.2 in O.S.133/2007
regarding alleged interference is concerned, in the
evidence of P.W.1 and also in the plaint of Smt. J. Manjula,
who has categorically averred that there is interference to
her peaceful possession by the defendants; the date of
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O.S.4045/2008
alleged interference is also clearly mentioned and Ex.P.14
endorsement issued Subramanyapura P.S. also goes to show
that there is interference by the defendants. Hence, I hold
and record my findings on this issue in Affirmative.
26. In so far as Issue No.1 & 2 in O.S.4045/2008, to
declare Sri. A. Manohar, the plaintiff in this case as
absolute owner of suit property and to hold that the
defendant No.1 to 6 have illegally executed registered
sale deed on 21.03.2003 in favour of defendant No.7 Sri.
S. Srinivasulu is concerned.
27. In this regard, the plaintiff A. Manohar got
examined D.W.1 to 4 i.e. D.W.1, M.S. Ananthamurthy his
father and D.W.2 Notary S.B. Chandrashekar, the Notary to
Ex.D.4 GPA dtd. 04.04.1986 and Ex.D.5 sale agreement dtd.
04.04.1986; D.W.3 - Sukumaran; D.W.4 A. Saraswathi, his
mother and so called GPA holder of Muniyappa @ Ruttappa.
28. It is important to note that although, this plaintiff
has alleged that GPA and sale agreement are executed by
Muniyappa in respect of suit property in the year 1986 itself,
admittedly as on the date of this suit, he is not in possession
of suit property.
32
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O.S.4045/2008
29. At this stage, the learned counsel appearing for
Smt. J. Manjula, has taken contention that as on the
execution of Ex.D.6 registered sale deed on 01.04.1998, by
Smt. A. Saraswathi as GPA holder of Muniyappa @ Ruttappa
in favour of her son A. Manohar, the said Muniyappa has
already died i.e. on 30.01.1997, as such, Ex.D.6 sale deed
dtd. 01.04.1998 is not valid.
30. In this regard, the learned counsel for the
plaintiff-Smt. J. Manjula has relied upon the following
ruling in WAJID PASHA VS. THE CHAIRMAN, BANGALORE
DEVELOPMENT AUTHORITY (2014(1) KCCR 676), wherein
the Hon'ble High Court of Karnataka has held as under :
A. POWER OF ATTORNEY - It gets terminated
automatically by death of either of the parties - As
soon as the person who executed the power of
attorney dies, the right given to the agent comes to
an end. Once the agency is terminated on account
of the operation of law or by the act of the principal,
the agent cannot act on the basis of the power
conferred upon him under the deed of power of
attorney.
33
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O.S.4045/2008
It is further held that during the course of hearing.
Mr. Ilyas Hussain, conceded that K.T. Venkatesh,
who executed the agreement of sale and the deed
of power of attorney (Annexure-F and F1) in respect
of the subject property on 19.06.1996, died much
earlier to the date of filing of this writ petition. In
law, the contract of agency gets atomically
terminated by death of either of the parties. As
soon as the person who executed the power of
attorney dies, the right given to the agent comes to
an end. Once the agency is terminated on account
of the operation of law or by the act of the principal,
the agent cannot act on the basis of the power
conferred upon him under the deed of power of
attorney. In view of death of K.T. Venkatesh, the
power conferred upon the petitioner to act as the
agent as per the deed dated 19.06.1996 has not
automatically terminated.
31. On contrary, the learned counsel appearing for A.
Manohar has relied upon the provision U/Sec. 202 of Indian
Contract Act, 1872 and it reads as under :
Sec. 202 - Termination of agency, where agent
has an interest in subject : Where the agent has
himself an interest in the property, it forms the
34
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O.S.4045/2008
subject matter of the agency, the agency cannot, in
the absence of express contract, be terminated to
the prejudice of such interest.
Illustration (a) says that A, gives authority to B to
sell A's land, and to pay himself, out of the
proceeds, the debs due to him from A. A cannot
revoke this authority, nor can it be terminated
by his insanity or death.
32. In this instant case, although Smt. A. Saraswathi
had got executed the general power of attorney and sale
agreement from Muniyappa @ Ruttappa in respect of suit
property, she failed to get it registered in time.
33. It is significant to note that the contention of
learned counsel appearing for A. Manohar that at the
relevant time i.e in the year 1986, there was prohibition of
registration of revenue lands, is not acceptable; For transfer
of ownership in the immovable property, the document is
mandatoryily to be registered, if value of the property is
more than Rs.100/- moreover, the Ex.D.14 to D.19 are
certified copies of sale deeds produced which are all
registered.
35
O.S.133/2007 C/W
O.S.4045/2008
34. It is the contention of advocate appearing for A.
Manohar that the GPA holder A. Saraswathi of Muniyappa
@ Ruttappa has executed registered sale deed on
01.04.1998 in favour of her son A. Manohar in respect of
suit property.
But, it is well established law that GPA sale is not
recognized and it is invalid under law.
35. In this regard, it is profitable to refer a authority in
Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana
and another reported in (2012) 1 Supreme Court Cases
656. Wherein Hon'ble Apex court of India is observed as
under :
"Transfer of property act, 1882 - Sections 54,
55, 53 A Immovable property - Proper mode of
transfer / General Power of Attorney sales (GPA
sales) or sale by power of attorney / will transfers
while testator is alive SA/GPA transfers - legality
- held, Immovable property can be conveyed
only by deed of conveyance(sale deed) duly
registered as required by law - Explaining the
nature and agreement for sale, power of attorney,
and living will held SA/GPA/Living will transfers
36
O.S.133/2007 C/W
O.S.4045/2008
neither convey any title nor do not transfer of, or
create interest in, immovable property except to the
limit extent of S.53-A - Observations of Delhi High
Court in Asha M Jain case (2001) 94 DLT 841, that
attorney sale was recognized mode of transfer
held, unwarranted and unjustified.
view taken herein, held, applicable not only
transfer of freehold property but also to transfer of
lease hold property - need to put to on practice of
SA/GPA/Living will transactions".
In the same judgment at para-24 it is further held that
"We therefore reiterate that immovable
property can be legally and lawfully
transferred/conveyed only by a registered
deed of conveyance. Transactions of the
nature of "GPA sales" or "SA/GPA/will
transfers" do not convey title and do not
amount to transfer, nor can they be
recognised or valid mode of transfer, nor can
they be recognised or valid mode of transfer
of immovable property. The courts will not treat
such transactions as completed or concluded
transfer or as conveyances as they neither convey
title nor create any interest in an immovable
37
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O.S.4045/2008
property. They cannot be recognised as deeds of
title, except to the limited extent of Section 53-A of
the TP Act. Such transactions cannot be relied
upon or made the basis for mutations in municipal
or revenue records. What is stated above will
apply not only to deeds of conveyance in regard to
freehold property but also to transfer of leasehold
property".
36. In view of the principle laid down in the supra
noted ruling, it is to be held that Ex.D.6 sale deed dtd.
01.04.1998 executed by so-called GPA holder Smt. Saraswati
on behalf of Muniyappa @ Ruttappa in favour of A. Manohar
is invalid; moreover, admittedly, it is executed after the
death of Muniyappa @ Ruttappa.
37. As such, the sale transaction is invalid and
therefore it cannot be considered that defendant No.1 to 6
have executed registered sale deed 21.03.2003 in favour of
defendant No.7 S. Srinivasulu illegally.
Under the facts and circumstances of this case, for the
reasons stated above in the light of ruling, it is inevitable to
hold and record my findings on above Issue No.1 & 2 in
Negative.
38
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O.S.4045/2008
38. In so far as Issue No.3 to 5 in O.S.4045/2008,
that the sale deed dtd. 21.03.2003; and registered sale
deed dtd. 29.09.2003 executed in favour of defendant
No.8 by defendant No.7 and gift deed dtd. 06.12.2002
executed by defendant No.8 in favour of defendant No.9
Smt. J. Manjula are null and void and not binding on rival
party Sri. A. Manohar is concerned, in this regard, the
party A. Manohar is failed to prove that the above said sale
deeds and gift deed or null and void.
39. Above all, the party A. Manohar has not filed his
suit O.S.4045/2008 in time. If he desires to challenge the
sale deed dtd. 21.03.2003 and sale deed dtd. 29.09.2003 and
gift deed dtd. 06.12.2004, he should do so within the
limitation period of 3 years; but he has not done so.
40. In this regard, it is useful to refer the relevant
provision of law i.e.
Article 58 of the law of Limitation Act, 1963, it reads as
under :
Description of suit Period of Time from which
limitation period begins to run
58. To obtain any Three years When the right sue
39
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O.S.4045/2008
other declaration first accrues.
41. It is important to note that in the
cross-examination of D.W witnesses, it is elicited that they
came to know about the sale transactions in the year 2003
itself. Therefore, the reliefs sought are clearly barred by law.
Beside, the party A. Manohar is not able to establish that
said sale deeds and gift deed are null and void in the eye of
law.
Under the facts and circumstances of this case, for the
reasons stated above, I hold and record my findings on these
issue No.3 to 5 in Negative.
42. In so far as Issue No.6 in O.S.4045/2008,
regarding entitlement of plaintiff A. Manohar for recovery
of possession of suit property is concerned, in view of my
negative findings on issue No.1 to 5 and under given facts
and circumstances of this case, I constrained to hold and
record my findings on this issue No.6 in Negative as the
plaintiff - A. Manohar is not entitled for recovery of
possession.
40
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O.S.4045/2008
43. As far as Issue No.8 in O.S.4045/2008, that
whether the defendant No.8 had valid title over the suit
property to execute gift deed in favour of defendant No.8
on 06.12.2004 is concerned, in view of my negative
findings on issue No.1 to 6 and the plaintiff A. Manohar has
failed to prove that sale deed dtd. 21.03.2003 executed by
LRs of Muniyappa @ Rutappa in favour of defendant No.7
Srinivasulu and the sale deed dtd. 29.09.2003 executed by
defendant No.7 in favour of defendant No.8 as invalid, and
under given facts and circumstances of this case, I
constrained to hold and record my findings on this issue
No.8 in Affirmative.
44. As far as Issue No.9 regarding court fee is
concerned, the defendant No.9 has taken formal contention
in the written statement that the court fee paid by the
plaintiff in O.S.4045/2008 is not proper; but in this regard
the defendant No.9 has failed to adduce any evidence or
produce any documents. Moreover, at the time of final
argument also this point is left out. In view of contra
evidence and documents in this regard, it is inevitable to
hold and record my findings on this issue No.9 in Negative.
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O.S.4045/2008
45. Issue No.3 and 4 in O.S.133/2007 Issue No.7, 10
and 11 in O.S.4045/2008 are concerned, In view of my
affirmative findings on Issue No.1 & 2 in O.S.133/2007 and
Negative findings on Issue No.1 to 6 and 8 in
O.S.4045/2008, and for the reasons above, and observations
made, in the light of authorities, under the facts and
circumstances of this case, I am arrived at inevitable
conclusion and safely hold that the plaintiff (Smt. J.
Manjula) is successful to prove her case by
adducing/producing sufficient and satisfactory oral and
documentary evidence to the required civil standard/
preponderance of probabilities and therefore, I hold that she
is entitled for the reliefs prayed; whereas, the plaintiff- A.
Manohar in O.S.4045/2008 is failed to prove his case to the
required civil standard. Therefore, I hold that he is not
entitled for the reliefs sought for. Accordingly, I answer
aforesaid issues and proceed to pass the following
ORDER
In the result, therefore main suit in O.S.133/2007 filed by Smt. J. Manjula U/O VII Rule 1 of CPC against the defendants is hereby partly decreed.
42O.S.133/2007 C/W O.S.4045/2008 ii. Consequently, an order of permanent injunction is hereby granted in favour of plaintiff against the defendants or anybody claiming under them from interfering with the plaintiff's peaceful possession and enjoyment of suit property as prayed.
iii. Whereas, the connected suit in O.S. 4045/2008 filed by plaintiff A. Manohar U/O VII Rule 1 of CPC against the defendant No.1 to 9 is hereby dismissed.
iv. Under the facts and circumstances of this, the parties shall bear their own costs.
v. The original judgment shall be kept in main case i.e. O.S.133/2007 and copy thereof in connected case i.e. O.S.4045/2008.
Draw decree accordingly.
(Dictated to the Stenographer, directly over computer, typed matter, corrected, signed and then pronounced by me in open Court on this the 21th day of June, 2014.) (MASTER R.K.G.M.M. MAHASWAMIJI) 43 O.S.133/2007 C/W O.S.4045/2008 VIII Additional City Civil & Sessions Judge, Bangalore.
ANNEXURE List of witnesses examined on behalf of the plaintiffs as per main case in O.S. 133/2007;
P.W.1- J. Manjula List of Documents marked on behalf of the plaintiffs:-
Ex.P.1 Registered sale deed dtd. 21.03.2003 Ex.P.2 Registered sale deed dtd. 29.09.2003 Ex.P.3 Registered gift deed dtd. 06.12.2004 Ex.P.4 & 5 Encumbrance certificates Ex.P.6 Copy of demand register 2003-04.
Ex.P.7 Self declaration of property tax
particulars
Ex.P.8 to 11 Tax paid receipt;,
Ex.P.9 Tax paid challan;
Ex.P.10 Tax paid challan;
Ex.P.11 Self declaration of property tax
particulars for the year 2005-06 Ex.P.12 Water tax bill Ex.P.13 Water tax receipt Ex.P.14 Endorsement dtd. 02.01.2007 Ex.P.15 Death Certificate of Muniyappa dt.
10.02.1997.
List of witnesses examined on behalf of the defendants in O.S.133/2007:-
44O.S.133/2007 C/W O.S.4045/2008 D.W.1- Ananthamurthy D.W.2 S.B. Chandrashekar D.W.3 Sukumaran D.W.4 A. Saraswathi List of Documents marked on behalf of the Defendants:-
Ex.D.1 Notarized General power of attorney dtd. 23.01.2007 Ex.D.2 Mutation Register extract Ex.D.3 RTC extract Ex.D.4 General power of attorney dtd.
04.04.1986 Ex.D.5 Sale agreement dtd. 04.04.1986 Ex.D.6 Sale deed dtd. 01.04.1998 Ex.D.7 Demand Register extract for the year 1998-99 Ex.P.8 Tax paid receipt for year 1998-99 Ex.D.9 Photo Ex.D.10 Negative Ex.D.11 & Encumbrance Certificates 12 Ex.D.13 Certified copy of sale deed dtd.
03.06.1991 Ex.D.14 Certified copy of sale deed dtd.
23.11.1991 Ex.D.15 Certified copy of sale deed dtd.
20.01.1992 Ex.D.16 Certified copy of sale deed dtd.
20.01.1992 Ex.D.17 Certified copy of sale deed dtd.
10.02.1998 Ex.D.18 Certified copy of sale deed dtd.
13.02.1998 45 O.S.133/2007 C/W O.S.4045/2008 Ex.D.19 Certified copy of sale deed dtd.
14.02.1998;
Ex.D.20 Original General power of attorney dtd. 23.01.2007 Ex.D.21 Revenue layout plan Ex.D.22 Notary Register Ex.D.23 Death certificate of Narasimha shetty (another attesting witness) VIII Additional City Civil & Sessions Judge, Bangalore.
21.06.2014 P-ABH D1 TO 7 - Ex-parte D8(a) to (c) D9-MP For judgment (Judgment pronounced in the open Court and the following order is passed) ORDER In the result, therefore main suit in O.S.133/2007 filed by Smt. J. Manjula U/O VII Rule 1 of CPC against the defendants is hereby partly decreed.
ii. Consequently, an order of permanent injunction is hereby granted in favour of plaintiff against the defendants or anybody claiming under them from interfering with the plaintiff's peaceful possession and enjoyment of suit property as prayed.
iii. Whereas, the connected suit in O.S. 4045/2008 filed by plaintiff A. Manohar U/O VII 47 O.S.9690/2006 Rule 1 of CPC against the defendant No.1 to 9 is hereby dismissed.
iv. Under the facts and circumstances of this, the parties shall bear their own costs.
v. The original judgment shall be kept in main case i.e. O.S.133/2007 and copy thereof in connected case i.e. O.S.4045/2008.
Draw decree accordingly.
VIII Addl. City Civil & Sessions Judge, Bangalore.