Bangalore District Court
Smt.Varalakshmi vs Smt.Mamatha on 24 February, 2021
8IN THE COURT OF LXXIII ADDL.CITY CIVIL & SESSIONS
JUDGE, MAYOHALL UNIT, BANGALURU. (CCH.74)
PRESENT:
Sri.Yamanappa Bammanagi, B.A., LL.B., (Spl.,)
LXXIII Addl.City Civil & Sessions Judge,
Mayohall Unit, Bangaluru.
Dated this the 24th day of February, 2021.
O.S. No.26616/2013
Plaintiff: Smt.Varalakshmi,
W/o.Late.Sri.B.Srinivas,
aged about 49 yrs,
R/at.Raghu Building,
Yellamma Temple,
Illyas Nagar, Pipeline Road,
Sarakki Gate, Bangaluru78.
(By Sri.G.S.Ravishankar - Adv.)
V/S
Defendants: 1. Smt.Mamatha,
W/o.Sri.N.M.Venkatappa,
aged about 32 yrs,
R/at.No.41, 2nd Cross Road,
R.K.Mutt Layout,
Kempegowdanagar,
Bangaluru19.
2. Sri.K.Murthy,
2
O.S. No.26616/2013
S/o.Sri.M.Krishnappa,
aged about 45 yrs,
R/at.No.33, 9th Cross Road,
Bendrenagar, Kadirenahalli,
BSK II Stage, Bangaluru70.
(By Sri.S.G.Lokesh - Adv. for
deft.No.2)
(Deft.No.1Exparte)
Date of Institution of the suit 19.10.2013
Nature of the (Suit or pronote, suit
DECLARATION & PERMANENT
for declaration and possession, suit
INJUNCTION
for injunction, etc.)
Date of the commencement of
13.07.2016
recording of the Evidence.
Date on which the Judgment was
24.02.2021
pronounced.
Year/s Month/s Day/s
Total duration 07 04 05
(Yamanappa Bammanagi)
73rd Addl. CC & SJ, M.H.Unit,
Bangaluru. (CCH74)
JUDGMENT
The plaintiff has filed this suit for declaration declaring that, the sale deed dated 13.12.2011, executed by the 3 O.S. No.26616/2013 plaintiff in favour of the first defendant is a nominal sale deed and for declaration of same as null and void and for cancellation of the sale deed dated 26.09.2012, executed by the defendant No.1 in favour of the defendant No.2 ,as consequential relief of permanent injunction, restraining the defendants, their agents or anybody claiming through the defendants, from dispossessing the plaintiff.
2. Brief facts of the plaintiff's case:
The plaintiff is the absolute owner and in possession of the property bearing No.124, New BBMP No.144/294/124 (Old Sy.No.89), Doddakallasandra Village, Uttarahalli Hobli, Bangaluru South Taluk, which is morefully described in the schedule by virtue of registered sale deed, dated 07.06.2001, purchased by the plaintiff jointly with her husband, under sale registered sale deed dated 7.6.2001. Thereafter, khatha has been changed in the name of the plaintiff and plaintiff is 4 O.S. No.26616/2013 paying tax to the competent authority in respect of suit schedule property. It is the specific case of the plaintiff that, 1st defendant's husband N.M.Venkatappa and plaintiff were working in an organization called Bharadwaj Consultancy at Chamarajpet, North Road, Bangaluru, the said N.M.Venkatappa was driver to the owner of the said firm. As such, in the year 2011 N.M.Venkatappa had approached the plaintiff and expressed that he was under dire need of money and he has to raise loan from his brother, for the said loan, he has to pledge some immovable property. But, he has no immovable property of his own. Thus, said N.M.Venkatappa had requested the plaintiff to execute nominal sale deed, in respect of schedule property in the name of his wife, who is first defendant herein, after repayment of said loan his wife will reexecute the sale deed in favour of the plaintiff. On 5 O.S. No.26616/2013 such request, the plaintiff has executed nominal sale deed in favour of the defendant No.1 on 13.12.2011 in respect of suit schedule property. Immediately thereafter, the plaintiff learnt that the husband of the defendant No.1 has committed cheat in against the plaintiff, lodged complaint to Asst.
Revenue Officer, BBMP, Konanakunte SubDivision, Bangaluru. Thereafter, the plaintiff requested the defendant No.1 to execute sale deed in her favour, in respect of suit schedule property. But, the defendant No.1 did not heed the request of the plaintiff, thereafter, the plaintiff came to know that the defendant No.1 has sold the suit property to the defendant No.2 under registered sale deed, dated 26.09.2012. Thus, the sale deed executed by the plaintiff in favour of the defendant No.1 is in the custody of the plaintiff, thus, under sale deed dated 13.12.2011 only cash paid.
Thus, the sale deed dated 13.12.2011 executed by plaintiff in 6 O.S. No.26616/2013 favour of defendant No.1 is nominal sale deed and liable to be cancelled and the sale deed dated 26.09.2012 executed by defendant No.1 in favour of the defendant No.2 is null and void.
3. In pursuance of the suit summons, the defendant No.2 appeared through counsel and filed written statement. The defendant No.1 placed exparte on 02.06.2015. The defendant No.2 has denied entire averment of the plaint as false and not within his knowledge and plaintiff is put to strict proof of the same. Further the defendant No.2 has specifically denied the averment of the plaint as false reiterating parawise and contended that, the plaintiff has concocted story in the plaint for the purpose of creating false cause of action in order to file false suit, as there was no cause of action to file this suit. Hence, the suit filed by the plaintiff is liable to be dismissed.
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O.S. No.26616/2013
4. Further the defendant No.2 contended in written statement that valuation made, court fee paid by the plaintiff is not correct, hence suit is liable to be dismissed.
5. Further, the defendant No.2 specifically contended that, he is the bonafide purchaser of the suit schedule property, he has purchased suit schedule property on 26.09.2012, under registered sale deed, for valuable consideration of Rs.18,72,000/ from its owner the defendant No.1, before purchasing the suit schedule property, the defendant No.2 has verified all relevant documents, and obtained certified copy of sale deed dated 7.6.2001, which stands in joint name of Srinivas.B., and Smt.Varalakshmi. Thereafter, he has obtained khatha and khatha certificate, which are stands in the name of Varalakshmi and GPA. Thereafter, he has taken sale deed, which stands in the name of defendant No.1, which shown that Varalakshmi and her 8 O.S. No.26616/2013 son has executed sale deed in favour of defendant No.1 for valuable consideration of Rs.18,72,000/. Defendant No.1 has endorsed for having received the consideration from the vendor of the defendant No.2, then the defendant No.2 taken form No.1, issued by BBMP, which reflects the name of the defendant No.1, thereafter obtained khatha and khatha certificate stands in the name of the defendant No.1, thereafter, the defendant No.2 has purchased the suit property from the defendant No.1 and khatha and khatha certificate changed in the name of the defendant No.2. Thus, the defendant No.2 is a bonafide purchaser of the suit schedule property.
6. It is further contended that, the plaintiff has filed this false suit with intention to wrongful gain. With this, the defendant No.2 prayed for dismissal of the suit with exemplary cost.
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O.S. No.26616/2013
7. Initially this suit is filed before the CCH29, in view of the Notification No.ADMI(A)413/2018, dated 31.7.2018, this case has been transferred to this court as per order dated 04.9.2018 from CCH29. And suit was called out in this court for the first time on 05.9.2018.
8. On basis of the pleadings, my learned Predecessor has framed the following: ISSUES
1. Whether the plaintiff proves that she is the absolute owner & in lawful possession and enjoyment of the suit schedule property as on the filing of this suit?
2. Whether the plaintiff proves that the sale deed dtd.
13.12.2011 that executed in favour of the 1st defendant in respect of suit schedule property is nominal and that it is liable to be cancelled?
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O.S. No.26616/2013
3. Whether the plaintiff proves that the sale deed dated 26.09.2012 executed by the 1st defendant in favour of the 2nd defendant in respect of the suit schedule property is null and void?
4. Whether the plaintiff proves the alleged interference by the defendants?
5. Whether the 2nd defendant proves that he is a bonafide purchaser of the suit schedule property?
6. Whether the suit is not valued properly and court fee paid is insufficient?
7. Whether the plaintiff is entitled to the reliefs as sought?
8. What order or decree?
9. In order to prove her case, the plaintiff is examined as P.W.1 and got marked Ex.P.1 to P.25 and got examined 11 O.S. No.26616/2013 P.W.2 and P.W.3. P.W.1 to 3 were crossexamined by the learned counsel for defendant No.2. The defendant No.2 got himself examined as D.W.1 and got marked Ex.D.1 to D.16. D.W.1 was crossexamined by the learned counsel for the plaintiff.
10. Heard argument of the learned counsel for the plaintiff and defendant No.2. After oral argument, the learned counsel for the parties have submitted written argument. In support of their arguments, the learned counsel for the plaintiff and defendant No.2 cited citations. The learned counsel for the plaintiff relied on the decision reported in 2011 (3) ALL MR 39 in the case of Ananda Sonji Wakode v/s Pandurang Shamrao Varilal. The learned counsel for the defendant No.2 relied on the decisions reported in
1. 2020(2) Kar. L.R. 321(SC).
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O.S. No.26616/2013
2. LAWS(SC) 2013 7 12.
3. LAWS(P&H) 2005 7 20.
4. LAWS(PAT) 2007 1 24.
5. LAWS(KER) 2001 9 21.
11. I have perused oral and documentary evidence led by the plaintiff and defendant No.2, considered the material placed before the court, considered the arguments advanced by the learned counsel for the parties.
12. My answer to the above issues are as follows: Issue No.1: In the Negative, Issue No.2: In the Negative, Issue No.3: In the Negative, Issue No.4: In the Negative, Issue No.5: In the Affirmative, Issue No.6: In the Affirmative, Issue No.7: In the Negative, Issue No.8: As per final order, for the following: 13 O.S. No.26616/2013 REASONS
13. ISSUE No.1: In order to prove her case, the plaintiff got examined herself as P.W.1 and got marked Ex.P.1 to Ex.25. The P.W.1 is examined by filing affidavit in lieu of examinationinchief, reiterating the averments of the plaint. P.W.1 deposed before the court that, she is the absolute owner and in possession of the suit schedule property by virtue of registered sale deed dated 7.6.2001, jointly purchased with her husband B.Srinivas and after death of her husband she is the absolute onwer and in possession of the suit property.
P.W.1 further deposed that, herself and husband of defendant No.1 N.M.Venkatappa were working in an organization called Bharadwaj Consultancy, the said N.M.Venkatappa had approached the plaintiff and requested to execute the sale deed in favour of defendant No.1 as 14 O.S. No.26616/2013 security for the loan as quolateral purpose, since he has no immovable property of his own. Believing said N.M.Venkatappa the plaintiff has executed sale deed in favour of the defendant No.1, in respect of suit schedule property, thereafter she came to know that said N.M.Venkatappa has committed cheating against the plaintiff, thereafter, the plaintiff requested to the defendant No.1 to execute the sale deed in favour of the plaintiff, but defendant No.1 did not heed the request of the plaintiff, thereafter, the plaintiff came to know that, the defendant No.1 has sold the suit property to defendant No.2. Hence, she filed this suit for the reliefs sought in the plaint.
14. Further, the plaintiff has produced as many as 25 documents, which have been marked at Ex.P.1 to P.25, to prove her case. Ex.P.1 is the original sale deed dated 7.6.2001, under which the plaintiff and her husband has 15 O.S. No.26616/2013 jointly purchased the suit schedule property, after death of her husband the plaintiff become absolute owner of the suit schedule property. Ex.P.2 is the encumbrance certificate for the period from 1.4.1997 to 31.3.2004, which reflects the name of the plaintiff and her husband, in respect of suit schedule property. Ex.P.3 is the certificate dated 27.7.2011 issued by the BBMP in the name of plaintiff in respect of suit schedule property. Ex.P.4 is the certificate dated 16.12.2000, issued by the BBMP, in joint name of plaintiff and her husband, in respect of suit schedule property. Ex.P.5 is the certificate dated 08.2.2011, issued by the BBMP in joint name of plaintiff and her husband, in respect of suit schedule property. Ex.P.6 is the certificate, dated 27.7.2011, issued by the BBMP, in joint name of plaintiff and her husband, in respect of suit schedule property. Ex.P.7 is the register in respect of houses and sites, issued by the BBMP, which 16 O.S. No.26616/2013 reflects the description of suit schedule property and the name of the plaintiff and her husband at ownership column. Ex.P.8 is the register in respect of houses and sites, issued by the BBMP, which reflects the description of suit schedule property and the name of the plaintiff and her husband at ownership column. Ex.P.9 is the register in respect of houses and sites, issued by the BBMP, which reflects the description of suit schedule property and the name of the plaintiff and her husband name has been deleted due to his death at ownership column.
15. Ex.P.10 to P.15 are the taxpaid receipts paid by the plaintiff in respect of suit schedule property to the BBMP. Ex.P.16 is the original sale deed dated 15.6.1992, which reflects the vendors vendors name of the plaintiff. Ex.P.17 is the encumbrance certificate for the period from 1.6.1989 to 16.4.1996. Ex.P.18 is the revenue assessment for the year 17 O.S. No.26616/2013 2002, which stands in the name of plaintiff and her husband. Ex.P.19 to P.22, are the taxpaid receipts paid by the vendor of the plaintiff, in respect of suit schedule property. Ex.P.23 is the land tax assessment list for the year 199697, which stands in the name of vendor of the plaintiff. Ex.P.24 is the application filed by the plaintiff before the BBMP authority on 27.12.2011, submitting the objection for registration of khatha No. in respect of suit schedule property and Ex.P.25 is the death certificate of husband of plaintiff, which reflects the date of death of plaintiff's husband as 17.4.2011.
16. Defendant No.2 got himself examined as D.W.1 and produced 16 documents, which have been marked at Ex.D.1 to 16. D.W.1 deposed before the court that, he is the bonafide purchaser of suit schedule property and before purchasing the suit property, the defendant No.2 has verified all relevant title deeds and revenue documents, in respect of 18 O.S. No.26616/2013 suit schedule property and after confirming himself about the transferable title, right and interest of the defendant No.1, over the suit property, the defendant No.2 has purchased suit property from the defendant No.1, the plaintiff has filed this false suit to gain wrongfully. Looking to the facts and circumstances of the case, it is clear that the plaintiff has sold the suit property to the defendant No.1 by executing absolute sale deed by receiving valuable consideration. Thus, there is no nominal sale deed in respect of suit schedule property. So, sale deed executed by the plaintiff in favour of defendant No.1 is an absolute sale deed and acted upon it. With this, prayed for dismissal of the suit.
17. In support of his defence the defendant No.2 has produced 16 documents, which have been marked at Ex.D.1 to D.16. Ex.D.1 is the original registered sale deed dated 26.9.2012, under which the defendant No.2 has purchased 19 O.S. No.26616/2013 the suit schedule property from defendant No.1 for consideration amount of Rs.18,72,000/. Ex.D.2 is the original registered sale deed, dated 13.12.2011, under which the defendant No.1 has purchased the suit schedule property, from plaintiff and her son, Ex.D.3 is the certificate issued by the BBMP to the plaintiff in respect of suit schedule property on 28.7.2012, Ex.D.4 is the certificate, dated 28.7.2012, issued by the BBMP in the name of defendant No.1 in respect of suit schedule property.
18. Ex.D.5 is the register maintained by the BBMP for the list of houses and vacant sites dated 28.7.2012, which reflects that the name of plaintiff and her husband has been removed, in their place the name of the defendant No.1 has been written as a owner of the suit schedule property. Ex.D.6 is the certificate, issued by the BBMP on 10.10.2012 in the name of defendant No.2, in respect of suit schedule property. 20
O.S. No.26616/2013 Ex.D.7 is the certificate issued by the BBMP, in the name of defendant No.2, in respect of suit schedule property. Ex.D.8 is the register maintained by the BBMP, for the list of houses and vacant sites, dated 10.10.2012, which reflects that, the name of defendant No.2 as a owner of suit schedule property. Ex.D.9 is the receipt issued by the BBMP to the defendant No.2, for having received the tax, in respect of suit schedule property. Ex.D.10 is the certified copy of the sale deed. Ex.D.11, & D.11 (a to d) are the taxpaid receipts paid by the defendant No.2, in respect of suit schedule property. Ex.D.12 are the two encumbrance certificates for a period from 1.4.2004 to 29.6.2012 and 1.4.2011 to 3.10.2012. Ex.D.13 is the letter issued by the BBMP, in the name of defendant No.2, in respect of construction over the suit schedule property. Ex.D.14 is the receipt, issued by the BBMP to defendant No.2, for having received the tax, in respect of suit schedule 21 O.S. No.26616/2013 property. Ex.D.15 is the bank endorsement stands in the name of defendant No.2 and Ex.D.16 is the plan issued by the BBMP to the defendant No.2, for construction of building over the suit schedule property.
19. Now it is relevant to appreciate the oral and documentary evidence to ascertain as to whether the plaintiff is the absolute owner and in possession of the suit schedule property at the time of filing of the suit. Ex.P.1 to P.24 are title deeds and revenue records, in respect of suit schedule property, stands in the name of vendor of the plaintiff and plaintiff. These documents clearly establishes that the plaintiff was the owner and in possession of the suit schedule property by virtue of registered sale deed, dated 7.6.2001. Ex.D.2 is the registered original sale deed, dated 13.12.2011, through which the plaintiff has sold the suit schedule property to the defendant No.1, for consideration of 22 O.S. No.26616/2013 Rs.18,72,000/. Ex.D.3 is the certificate, dated 28.7.2012, issued by the BBMP, in the name of defendant No.1 by virtue of sale transaction, taken place between the plaintiff and defendant No.1, in respect of suit schedule property and Ex.D.4 to D.16, revenue records came into existence by virtue of registered sale deeds, which took place between vendor of the plaintiff and plaintiff and thereafter between plaintiff and defendant No.1 and thereafter between defendant No.1 and defendant No.2. Ex.D.1 is the original sale deed dated 26.9.2012, executed by defendant No.1, in favour of defendant No.2, in respect of suit schedule property by receiving the consideration amount of Rs.18,72,000/. These documentary evidence clearly establishes the flow of title of the suit schedule property from vendor of the plaintiff to the defendant No.2.
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O.S. No.26616/2013
20. The question before the court is as to whether sale deed executed by the plaintiff at Ex.D.2 is a nominal sale deed or is an absolute sale deed. It is well settled law that, once the document is registered, the contents of the same is presumed to be genuine u/S 17 of the Registration Act. The case of the plaintiff is that, she has executed Ex.D.2, in favour of defendant No.1 as a security for the loan as assured by the husband of defendant No.1. I have perused Ex.D.2, no where stated in Ex.D.2 that, the sale deed executed in favour of defendant No.1 as a security for the loan.
21. It is also clear from the Ex.D.2 that, the plaintiff has received an consideration amount of Rs.18,72,000/ from defendant No.1 and after receiving the said consideration amount the plaintiff has handed over the possession of the suit schedule property to the defendant No.1. Thereafter, the revenue records have been changed in the name of defendant 24 O.S. No.26616/2013 No.1. If, the plaintiff really intended to execute Ex.D.2 as a nominal sale deed, then the plaintiff could not have changed the revenue records. Not only this, the sale transaction between the plaintiff and defendant No.1 came to be entered in the encumbrance certificate. All khatha, mutation entries have been changed on the basis of registered sale deed executed by the plaintiff in favour of defendant No.1. The title of the document Ex.D.2 itself shows that it is an absolute sale deed (ಶಶದದ ಕಕಯಪತಕ). Now it is relevant to extract para2 at page2 of Ex.D.2, which reads thus:
"ಹಹಲಲ ನನನ ದರದದ ನಮತತ ಅಅದರರ ನನನ ಗಗಹಕಗತತದ ಅನವಹರರಗಳಗಗ ಹಹಗಗ ನನನ ಇತರ ದರದದಗಳಗಗ ಜರಗರದ ಮದಬಲಗದ ಬರಲಕಹದ ಪಪರದಕಕ ಸದರ ಸಸತಕನದನ ರಗ.18,72,000/ ( ಹದನರಅಟದ ಲಕದ ಎಪಪತರಕರಡದ ಸಹವರ ರಗಪಹಯಗಳಳ ಮಹತಪ) ಗಳಗರ ಶದದದಕಪರಕರಕ ಕರಗಟದಟ, ಕಪರದ ಮಬಲಗದ ಪಪತಹರ ರಗ.18,72,000/ ( ಹದನರಅಟದ ಲಕದ ಎಪಪತರಕರಡದ ಸಹವರ ರಗಪಹಯಗಳಳ 25 O.S. No.26616/2013 ಮಹತಪ) ಗಳನದನ ಪತಪದಲಲ ಸಹ ಹಹಕರದವ ಸಹಕಗಳ ಸಮಕಮ ನಮಮಅದ ನಗದಹಗ ಪಡರದದಕರಗಅಡರದತರಕಲನರ. ಸದರ ಕಪರದ ಮಬಲಗದ ಬಹಬದಕ ನಮಮಅದ ಬಹಕ ಬರಬರಲಕಹಗಲಲವಹದದರಅದ ಸದರ ಕಪರಪತಪವನದನ ನಮಮ ಹರಸರಗರ ನರಗಅದಣ ಮಹಡಕರಗಟದಟ, ಸದರ ಸಸತಕನ ಸಅಪಪರರ ಸಹಸಧಲನವನದನ ಸಹಹ ಈ ದನವರಲ ನಮಮ ವಶಕರಕ ಬಟದಟಕರಗಟಟರದತರಕಲನರ."
22. On careful perusal of the Ex.D.2 and revenue records no prudent man can say that Ex.D.2 is the nominal sale deed. Thus, being absolute owner of suit schedule property, the plaintiff has sold the suit schedule property to defendant No.1, by receiving the consideration amount of Rs.18,72,000/ and revenue records clearly establishes that the plaintiff and defendant No.1 have acted upon the Ex.D.2. On the same day the plaintiff has delivered the possession of the suit schedule property to the defendant No.1. Now it is 26 O.S. No.26616/2013 relevant to extract the crossexamination of P.W.1 dated 24.07.2017 at page13, 6 line from top, which reads thus:
"ದಹವರ ದಹಖಲಸದವ ಸಅದರರದಲಲ ಆಸಕರ ಎಲಹಲ ದಹಖಲಹತಗಳಳ ಪಪತವಹದ2 ರವರ ಹರಸರನಲಲತದಕ ಎಅದರರ ಸರ. Further P.W.1 deposed in the crossexamination that ದಹಖಲಹತಗಳ ಪಪಕಹರ 2 ನರಲ ಪಪತವಹದ ಆಸಕರನದನ ಖರಲದ ಮಹಡದವಹಗ 1 ನರಲ ಪಪತವಹದ ಅದರ ಮಹಲಲಕರಹಗದದರದ ಎಅದರರ ಸರ."
23. On perusal of the registered sale deed and revenue records, in addition to that the crossexamination of P.W.1 as extracted supra it is clearly establishes that, the plaintiff was not owner and in possession of the suit schedule property on the date of filing of the suit. Thus, plaintiff failed to prove his title and possession over the suit schedule property at the time of filing of the suit. With this observation and reasons assigned I answer this issue in the Negative. 27
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24. ISSUE No.2: It is a specific case of the plaintiff that herself and husband of defendant No.1 Mr.N.M.Venkatappa were working in an organization called Bharadwaj Consultancy at Chamarajpet, North Road, Bangaluru.
25. As such the said N.M.Venkatappa had approached the plaintiff to execute the sale deed in favour of his wife defendant No.1 for the security of loan intended to take from his brother as said N.M.Venkatappa has no immovable property of his own. Thus, believing the words of N.M.Venkatappa the plaintiff has executed registered sale deed, in favour of defendant No.1 as security for the loan on the assurance that the defendant No.1 will execute the sale deed in favour of plaintiff after loan is paid and thereafter the plaintiff came to know that, N.M.Venkatappa had cheated her and subsequently the plaintiff came to know that the defendant No.1 has sold the suit property in favour of 28 O.S. No.26616/2013 defendant No.2. Thus, the plaintiff sought for declaration that the sale deed executed by her in favour of defendant No.1 is nominal sale deed and she was not intended to acted upon it and said sale deed has not been handed over to the defendant.
26. I have gone through Ex.D.2 carefully. It is clearly shows that plaintiff has sold the suit schedule property to the defendant by executing absolute sale deed dated 13.12.2011, for the sale consideration amount of Rs.18,72,000/, on receiving the same the plaintiff has handed over the possession of the suit schedule property to the defendant No.1 and thereafter, all the revenue records have been changed in the name of defendant No.1.
27. Thus, the sale transaction taken place between plaintiff and defendant No.1 are acted upon. There is no single piece of documents, which creates doubt about the sale 29 O.S. No.26616/2013 transaction between the plaintiff and defendant No.1. If, the plaintiff was not intended to acted upon the sale deed she could not have mentioned in the sale deed about the receiving of Rs.18,72,000/ from defendant No.1. Further she could not have mentioned about the delivery of possession of the suit schedule property to the defendant No.1.
28. On careful reading of Ex.D.2 in its entirety no prudent man could say that Ex.D.2 is the nominal sale deed. On careful perusal of the Ex.D.2 it is clear that the parties to the documents have mentioned in registered sale deed Ex.D.2 all legal requirements of transfer of property and expressed their intention to transfer their right, title, interest and possession over the suit schedule property as required u/S 54 of Transfer of Property Act.
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29. A deed of sale being a registered one and apparently containing stipulation of transfer of right, title and interest by the vendor in favour of the vendee, the onus of proof was on the plaintiff to show that said deed was, in fact, not executed or otherwise does not reflects the true nature of transaction. A document, as is well known, must be construed in its entirety. Reading the said document in its entirety, there cannot be any doubt whatsoever that it was a deed of sale. It satisfies all the requirements of a conveyance of sale as envisaged u/S 54 of the Transfer of Property Act. The Hon'ble Apex Court has held in the decision reported in (2006) 4 SCC 432 in case of Bishwanath Prasad Singh v/s Rajendra Prasad and another, held thus:
"16. A deed as is well known must be construed having regard to the language used therein. We have noticed herein before that by reason 31 O.S. No.26616/2013 of the said deed of sale, the right, title and interest of the respondents herein was conveyed absolutely in favour of the appellant. The sale deed does not recite any other transaction of advance of any sum by the appellant to the respondents, which was entered into by and between the parties. In fact, the recital made in the sale deed categorically show that the respondents expressed their intention to convey the property to the plaintiff herein as they had incurred debts by taking loans from various other creditors."
30. With a view to ascertain the nature of transaction the document has to be read as a whole. A sentence used or a term used may not be determinative of the real nature of transaction. The document in question was not only registered one, but also the title deeds executed in respect of 32 O.S. No.26616/2013 property clearly established that the physical actual possession has been delivered to the defendant No.1. Thus, it must be held to have been handed over and it was acted upon. Further the documents produced by the parties clearly establishes that, after sale the defendants are paying taxes to the competent authority in respect of suit schedule property.
31. The right of possession over a property is a facet of title. As soon as a deed of sale is registered, the title passes to the vendee. The vendor, in terms of stipulations made in the deed of sale, is bound to deliver possession of property sold. Thus, a heavy burden of proof lay upon the plaintiff to show that the transaction was a sham one. It was not a case where the parties did not intended to enter into any transaction at all. Admittedly, a transaction has taken place. Only the nature of transaction was in issue. A distinction must be born in mind in regard to the nominal nature of transaction, which 33 O.S. No.26616/2013 is no transaction in the eye of law at all and the nature and character of transaction as reflected in deed of conveyance. The construction of deed clearly shows that it was a deed of absolute sale.
32. Thus, on face of Ex.D.2 clearly establishes that, the sale transaction contained in Ex.D.2 is an absolute sale transaction as Ex.D.2 has fully satisfied with the requirement of Section 54 of Transfer of Property Act and that there is no room to hold that the sale deed executed by the plaintiff in favour of the defendant No.1 in respect of suit schedule property is a nominal sale deed. On face of sale deed dated 13.12.2011, Ex.D.2, it is clear that if a prudent man gone through its entirety he could say that it is an absolute sale deed and not nominal sale deed.
33. In support of her case, the plaintiff has examined P.W.2 and 3. P.W.2 deposed before the court that the 34 O.S. No.26616/2013 plaintiff has executed nominal sale deed in favour of defendant No.1 and he knows the plaintiff's husband. In order to appreciate the oral evidence of P.W.2 it is relevant to extract the crossexamination of P.W.2 dated 13.3.2019 at 2 nd page, after 7 line from top, which reads thus:
"I have not seen sale deed as stated in my affidavit. Plaintiff has executed a sale deed in respect of suit schedule property in favour of defendant No.1. I was not present at the time when sale deed was executed. I asked plaintiff not to execute sale deed in my absence. Since plaintiff did not called me to present at the time of execution of sale deed, I was not present."
Further the P.W.2 deposed in the crossexamination at the same para, which reads thus:
35
O.S. No.26616/2013 "Till today I have not seen sale deed. Plaintiff was asked me to give evidence in this suit in the year 2013 itself."
This evidence of P.W.2 clearly shows that the P.W.2 was not present at the time of execution of sale deed by plaintiff in favour of defendant No.1 and even P.W.2 did not seen sale deed till today. Under such circumstances, it is not possible for P.W.2 to give evidence about the sale deed when he has not seen the same even till today. Without going through the document he cannot give any opinion as to whether it is a nominal or absolute. Thus, the evidence of P.W.2 cannot be reliable and acceptable.
34. Further plaintiff examined P.W.3 who deposed before the court that he knew the husband of plaintiff and he is doing work in Courier Service TDDC Centre in J.C. Road, 36 O.S. No.26616/2013 Bangaluru. P.W.3 also admitted in the crossexamination dated 21.9.2019, which reads thus:
"I did not see the sale deed executed by plaintiff in favour of defendant No.1 till today. I was not present at the time when sale deed has been executed in favour of the defendant No.1."
Further he deposed in the crossexamination on the same date at next page, last line, which reads thus:
"It is true that defendant No.1 has sold suit property to defendant No.2 in the year 2012."
These two witnesses P.W.2 and 3 are deposing on the document Ex.D.2 without seeing the same that the sale deed executed by plaintiff in favour of defendant No.1 is a nominal sale deed and not absolute sale deed. On careful perusal of the deposition of P.W.2 and 3 it is clear that the P.W.2 and 3 37 O.S. No.26616/2013 are giving false evidence about the document, because it is not possible for not only P.W.2 and 3, but it is not possible for anybody to give their opinion about the contents and nature of documents without seeing, without reading those document on which they are giving their opinion. Thus, evidence of P.W.2 and 3 are not acceptable and reliable.
35. The learned counsel for the plaintiff submitted that the sale deed executed by plaintiff in favour of defendant No.1 is nominal sale deed. In support of his argument he relied on the decision reported in 2011 (3) ALL MR 39 in case of Anand Sonji Wakode v/s Pandurang Shamrao Varilal, and brought the notice of this court on the Head Note, which reads thus:
"Specific Relief Act(1963), S.31 Transfer of property Acct(1882), S.54Suit for declarationSuit by plaintiff that defendant is trying to 38 O.S. No.26616/2013 disturb possession on basis of sale deeddefendant got document executed from plaintiff on basis of misrepresentationCancellation of saledeed is not required as it is not real transactionSuit for declaration that saledeed was sham and nominal is maintainable under S.31.
Plaintiff executed saledeed as
security for loan taken from
defendant. Plaintiff never parted
with possession even after execution of sale deed. Saledeed is void. Nominal and sham sale deed need not be can celled. Plaintiff was not claiming any relief on basis of said saledeed but was only seeking declaration that same was nominal and sham. Suit for declaration without claiming cancellation of saledeed is maintainable under S.31.(2006) 5 SCC 353Rel. On.AIR 39 O.S. No.26616/2013 1977 Karnataka 99, AIR 2007 SC 1499, 2003(3) Civil Law Journal 214Ref.to.(para 10)"
36. On the other hand, the learned counsel for the defendant No.2 submitted that no prudent man could say that Ex.D.2 Sale Deed is a nominal sale deed, since on perusal of the contents of Ex.D.2 it complies all legal requirement of transfer and on reading the document as a whole it is clearly shows that the parties to the document have expressed that the transferor was expressed her intention to transfer her right, interest, title and possession over the suit schedule property by receiving valid consideration. In support of his argument he relied on the decision reported in 2020 (2) KAR L.R. 321 SC in case of C.S.Venkatesh v/s A.S.C.Murthy (D) by Lrs and others, relying on the decision the learned counsel for the defendant No.2 brought the notice of this court on para13 of the decision, which reads thus: 40
O.S. No.26616/2013 "It is settled that the real character of the transaction has to be ascertained from the provisions of the documents viewed in the light of surrounding circumstances. Since two documents were executed on the same day, the transaction cannot be a mortgage by way of of conditional sale in view of the express provisions contained in section 58(c) of the transfer of property Act, 1882. A perusal of the recitals contained in the sale deed on Ex.P.8 shows, that the property was agreed to be sold absolutely for a total consideration of Rs.
35,000/ The plaintiff has also stated that since possession has already been delivered earlier under a deed of mortgage, delivery of possession under this document does not arise. It was further stated that henceforth neither 41 O.S. No.26616/2013 himself nor his heirs have any right, title or interest in the property and that the plaintiff is entitled to water, air, right of easement,etc. Concerning the property together with all rights, title and interest and right of disposal of the property. The defendant, his son and grandson, etc. unto posterity are entitled to enjoy the property without any obstruction or trouble either by the plaintiff or from anyone claiming under him. He has delivered the possession certificate issued by the CITB and khata certificate for transfer of khata from Bangalore City Corporation.
Thus, the language employed in this document is plain and unambiguous and the intention of the parties is also very clear from its recitals. Even the evidence led by the parties does not indicate to the 42 O.S. No.26616/2013 contrary. Thus, a careful perusal of all the clauses of the sale deed and the evidence on record would clearly show that the intention of the parties was to make the transaction a sale. We are also of the view that since the execution of the re conveyance deed has already been established, question of holding the sale deed to be nominal cannot be accepted."
37. Further the learned counsel for the defendant No.2 relied on the decision of the Hon'ble Apex Court reported in LAWS (SC) 2013 7 12 in case of Vanchala Bai Raghunath Ithape v/s Shankarrao Baburao Bhilare, relying on the decision the learned counsel for the defendant No.2 brought the notice of this court by reading para12 of the decision, which reads thus:
43
O.S. No.26616/2013 "The document in question has been described as sale deed transferring the land along with the fixtures with the fixtures and possession was handed over to the defendant. The relevant portion of the sale deed is extracted herein below.
"Thus the sale land along with the fixtures and all rights is being sold to you with all rights along with its possession. Thus you may cultivate the same. Hence forth I or my heirs shall not be having any right over the same and you have become the owner of the said land. Any obstruction would be removed at my cost. I have received the consideration for the same for which there is no complaint. If Rs.3000/ is paid within 5 years at the end of any Falgum month at that time you should accept the said amount and 44 O.S. No.26616/2013 return the land to me and on this condition the land is being sold to you."
38. Further the learned counsel for the defendant No.2 relied on the decision reported in LAWS (P&H) 2005 7 20 in case of Rup Singh v/s Baltej Singh, relying on the decision the learned counsel for the defendant No.2 brought the notice of this court by reading para17 of the decision, which reads thus:
"17. As noticed above, the defendants in the written statement had denied the said averments. It was specifically pleaded that the land of all the brothers including Jarnail Singh was under mortgage for Rs.12,000/ and share of the mortgage money for Jarnail Singh came to Rs.3,000/ and the sale deed were executed each for Rs.6,000/ Out of the total said 45 O.S. No.26616/2013 consideration Rs.3,000/ each were paid by both the defendants before the SubRegistrar in cash. For the remaining amount which had been indicated as having been paid at home, two separate pronotes were executed for Rs.4,500/ each. The amounts in the pronotes reflect an amount of Rs.3,000/ out of the sale consideration and Rs.1,500/ representing the mortgage amount in the two pronotes would be Rs.3,000/ share of Jarnail Singh, and Rs.3,000/ each would be the amount which had been indicated, in the two sale deeds as having been paid at home. It is, thus, apparent that there was absolutely no inconsistency in the plea taken by the defendants in the written statement and the recital in the sale deeds. It appears that the learned first appellate court had 46 O.S. No.26616/2013 completely misinterpreted the pleadings contained in the written statement and on that basis had held that no amount had been paid before the SubRegistrar. As a matter of fact, as detailed out in the written statement and also stated specifically by various witnesses of the defendants, an amount of Rupees 3,000/ was paid in cash in each of the sale deeds before the SubRegistrar. Even otherwise, there is absolutely no reason to disbelieve the recital contained in the sale deed in that regard. The plaintiff has not produced any official from the Sub Registrar to show that the said recital was incorrect in any manner. In the absence of any such evidence on behalf of the plaintiff, if could not be held at all that the 47 O.S. No.26616/2013 sale deeds in question were not for consideration."
39. Further the learned counsel for the defendant No.2 relied on the decision reported in LAWS (PAT) 2007 1 24 in case of Sudama Devi v/s Bibi Shalma Khatoon, relying on the decision the learned counsel for the defendant No.2 brought the notice of this court by reading para25 & 26 of the decision, which reads thus:
"25. It has been argued by the learned advocate of the appellant that admittedly the entire consideration amount was not paid to defendant sudam devi by the plaintiff and as per the sale deed, out of total consideration of Rs.7500/, only Rs.7000/ was paid to the defendant and the rest consideration money Rs.500/ was agreed to be paid at the time of exchange of chirkut which was 48 O.S. No.26616/2013 admittedly never paid and due to that, Chirkut could not be exchanged. The submission of the learned advocate of the appellant is that since the remaining consideration of Rs.500/ was not paid to the defendant by the plaintiff, as such valid title of the suit land could not pass to the plaintiff. Against the said argument of the advocate of the appellant, it has been submitted by the respondent that there is settled law that passing of consideration is not a condition precedent of valid sale and the sale is complete even on payment of part consideration and the title passes even though consideration is deferred. On this point the learned advocate of the respondents has placed reliance upon the decisions reported in AIR 1971 Orissa 147 (Gurubari Lenka 49 O.S. No.26616/2013 and Anr.appellants V. Dulani Thakurani and Ors. Respondent ), AIR 1962 Andhra Pradesh 94 (Goli Ramaswami and Anr. Appellants V. Narla Jagannadha Rao an Ors.
respondents)and 1989 BBCJ 650 (Smt.Dola Devi, appellants V. Ali Hussain and ors. Respondent)
26. Having considered the submissions of both the parties and after going through the decisions referred above, I find and hold that as soon as the sale deed is complete and part consideration amount has been paid, the title passes to the purchaser even if payment of remaining consideration money was deterred.
I further find and hold that since Ext.4 does not show that the intention of the parties was that
title will pass to the plaintiff only 50 O.S. No.26616/2013 alter payment of full consideration money and only after exchange of Chirkut on payment of Rs.500/ and as the plaintiff had already paid Rs.7000/ to the defendant towards part payment of consideration money and had also tendered the remaining amount Rs.500/ on several occasions, valid title had passed to the plaintiff by virtue of sale deed dated 5.4.84. Accordingly, this substantial of law is also decided against the appellant."
40. Further the learned counsel for the defendant No.2 relied on the decision reported in LAWS (KER) 2001 9 21 in case of Appu v/s Bhaskaran, relying on the decision the learned counsel for the defendant No.2 brought the notice of this court on the Head Note, which reads thus: 51
O.S. No.26616/2013 "Head Note: Transfer of Property Act, 1882S.54Transfer of immovable property passing of consideration is not a prerequisite or condition precedent of transfer of immovable property plaintiff is the appellant. Suit was for declaration of title and possession of the plaint schedule property defendant contentedly when he request loan the appellant insisted for execution of a registered document as security for the loan, and rent bond a is fabricated by the appellant on blank signed stamp papers obtained by him and appellant didn't pay the consideration. Suit dismissed which is challenged. Held S.54 of the transfer of property act defines sale as follows: " sale is a transfer of ownership in exchange for a price paid or promised or partpaid 52 O.S. No.26616/2013 and partpromised." From the above definition of sale in the T.P.Act it is clear that transfer of ownership can be in exchange for a price paid or promised or part paid and part promised. Hence passing of the consideration is not a prerequisite or condition precedent for sale or transfer or ownership of immovable property. The words :''price paid or promised or partpaid and partpromised'' indicate that actual payment of whole of the price at the time of the execution of sale deed is not asineg qua non to the completion of the sale. Even if the whole of the price is not paid but the document is executed and thereafter registered, if the property is of the value of ore than Rs.100/ the sale would be complete. Therefore, it is clear that on the basis of the mere 53 O.S. No.26616/2013 contention of the respondent that the consideration for Ext. A1 is not passed from the appellant to the respondent it cannot be held that the registered assignment deed Ext.A1 is void or effective. As already noted, the recitals made in Ext. A1 assignment deed make it very clear that the property is transferred by the respondent to the appellant for considerateness of Rs.53,000/ and there is no observation in the document either express or with necessary implication with regard to the passing of consideration or title to and possession of the property at a later time after its execution as per the assignment deed. Therefore the recitals made in Exts. A1, A2 andBi clearly manifest the intention of the parties to transfer the ownership of the respondent in 54 O.S. No.26616/2013 the plaint schedule property to the appellant as per Ext.a1. Appeal allowed."
Further the learned counsel for the defendant No.2 brought the notice of this court on para24 & 25 of the decision, which reads thus:
"24. Therefore as it is clear from the recitals made in Exts. A1, A2 and B1 that the intention of the respondent in this case was to assign his entire right in and title to the plaint schedule property to the appellant for a consideration of Rs.53,000/ and Ext. A1 is executed and registered by the respondent in accordance with law, the contention of the respondent that Ext.A1 was intended to be executed as a security for the transaction in debt and not a sale deed is not sustainable.55
O.S. No.26616/2013
25. As it is clear from the evidence on record Ext.A1 assignment deed is executed by the appellant with the intention to assign the property in favour of the appellate failed to prove that he has paid considerations alleged in the plaint and therefore the appellant has not obtained any right, interest and possession of the plaint schedule property cannot be sustained. Hence this appeal is allowed, the decree and judgment passed by the lower court are set aside and the suit is decreed for declaration and permanent prohibitory injunction as prayed for, by the appellant. Considering the nature and circumstances of the case, I direct the parties to bear their respective costs in this appeal."56
O.S. No.26616/2013
41. Thus, on careful reading of Ex.D.2 as a whole, it is clearly reflects the intention of the parties to the document that the plaintiff has executed registered absolute sale deed in favour of the defendant No.1 with a intended to transfer her right, title, interest and possession over the suit schedule property to the defendant No.1 and same was acted upon. Thus, on perusal of the oral and documentary evidence led by the parties this court is of opinion that the plaintiff has failed to prove that the sale deed dated 13.12.2011, executed by plaintiff in favour of defendant No.1 in respect of suit schedule property, is nominal sale deed. Hence, with the above observation and reasons assigned, I answer this issue in the Negative.
42. ISSUE No.3: I have perused Ex.D.1 Original Sale Deed executed by defendant No.1 in favour of defendant No.2 in respect of suit schedule property. As I have already 57 O.S. No.26616/2013 observed that the sale transaction between the plaintiff and defendant No.1 is an absolute sale and by virtue of Ex.D.2 the defendant No.1 was become an absolute owner and in possession of the suit schedule property as it could be seen from Ex.D.2 to D.16. Being a absolute owner of the suit schedule property by virtue of registered sale deed dated 13.12.2011, executed by plaintiff, in favour of defendant No.1, the defendant No.1 has sold the suit schedule property to defendant No.2 under registered sale deed dated 26.09.2012 for sale consideration of Rs.18,72,000/ and by virtue of said sale deed all revenue records have been transferred in the name of defendant No.2.
43. Further, it is clear from the Ex.D.1 Original Registered Sale Deed that, the defendant No.1 has delivered the possession of the suit schedule property by receiving the consideration amount mentioned supra. On careful perusal 58 O.S. No.26616/2013 of Ex.D.1 it satisfies that all requirement have been complied with by the parties in transaction of sale of suit schedule property. Thus, there is no material before the court to hold that sale deed executed by the defendant No.1 in favour of defendant No.2 is void document. Thus, the oral evidence of plaintiff appeared in the suit is hit by Section 91 of the Indian Evidence Act. No documentary evidence are corroborated to the oral testimony of plaintiff. On careful perusal of the oral and documentary evidence placed before the court, it is clear that the sale deed dated 26.9.2012, executed by defendant No.1 in favour of defendant No.2 in respect of suit schedule property is a valid document and by virtue of which the defendant No.2 has become absolute owner and in possession of the suit schedule property as the defendant No.1 was having a transferable title, interest and possession over the suit schedule property to transfer the same in favour of 59 O.S. No.26616/2013 defendant No.2 in accordance with law. Hence, I answer this issue in the Negative.
44. ISSUE No.5: It is a specific defence of the defendant No.2 that before purchasing the suit schedule property he has verified all relevant documents and obtained copy of sale deed dated 7.6.2001 which was stands in the name of plaintiff and her husband and thereafter he obtained khatha and khatha certificate in respect of suit schedule property stands in the name of plaintiff and her husband and thereafter the defendant No.2 has taken sale deed stands in the name of defendant No.1 and other documents and verified as to whether defendant No.1 had transferable title, interest, right and possession over the suit schedule property as per law. Thereafter, he purchased the suit schedule property from defendant No.1.
60
O.S. No.26616/2013
45. Thus, the defendant No.2 has taken all care about the title and possession of the defendant No.1 at the time of purchasing the suit schedule property. Thus a bonafide purchaser is a person, who acts in good faith and honest intention and belief and purchased the suit property. On perusal of the document produced by the plaintiff and defendants it is clearly established that the defendant No.2 has purchased the suit property as a prudent man could do on the documents produced before the court. Further it is clear from the Ex.D.1 to D.16 that the defendant No.2 has taken all reasonable care at the time of purchasing the property. A reasonable care means such care as an prudent man is expected to have taken reasonable care. Thus, looking to the facts and circumstances of the case and oral and documentary evidence led by the parties, it is clear that defendant No.2 is an bonafide purchaser and he has 61 O.S. No.26616/2013 established his right and possession over the suit schedule property as a bonafide purchaser.
46. In support of his defence, the defendant No.2 has produced Ex.D.1 to D.16, title deeds and revenue records. On perusal of the registered sale deeds and revenue records produced by the plaintiff, and defendant No.2, clearly establishes the flow of title and possession of the suit schedule property from vendor of plaintiff to the defendant No.2. On perusal of the documentary evidence and oral evidence led by the parties, it is clear that the defendant No.2 is an bonafide purchaser of the suit schedule property and by virtue of Ex.D.1, Registered Sale Deed dated 26.9.2012, executed by the defendant No.1 in favour of the defendant No.2, in respect of suit schedule property, the defendant No.2 has become absolute owner and in possession of the suit schedule property by paying a valuable sale consideration of 62 O.S. No.26616/2013 Rs.18,72,000/ to the defendant No.1 as defendant No.1 was absolute owner, having transferable title and was in possession of suit schedule property with all transferable title. With this observation and reasons assigned supra, I am of the opinion that the defendant No.2 is an bonafide purchaser of suit schedule property. Hence, I answer this issue in the Affirmative.
47. ISSUE No.6: The plaintiff has filed this suit for declaration of sale deed dated 13.12.2011, executed by her in favour of defendant No.1, in respect of suit schedule property and cancellation of sale deed dated 26.09.2012 executed by defendant No.1 in favour of defendant No.2 and consequential relief of permanent injunction against the defendants. Therefore, the plaintiff has valued the suit u/S 7 (2) of Karnataka Court Fees and Suit Valuation Act and valued Rs.18,72,000/, for cancellation and declaration of 63 O.S. No.26616/2013 sale deeds and plaintiff valued for the consequential relief of injunction for Rs.1,000/. Thus, plaintiff has paid the court fee of Rs.1,03,865/ and Rs.25/, in all plaintiff has paid Rs.1,03,890/. Thus, the valuation made and court fee paid by the plaintiff is in accordance with the provisions of Karnataka Court Fees and Suit Valuation Act, 1958, hence, the court fee paid by the plaintiff is correct and proper. Hence, I answer this issue in the Affirmative.
48. ISSUE Nos.4 & 7: These two issues are interconnected to each other, in order to avoid repetition, I answer these two issues commonly. It is specific case of the plaintiff that she is in possession and enjoyment of the suit schedule property as a owner by virtue of registered sale deed dated 7.6.2001. But, on perusal of the entire records, produced by the plaintiff and defendant No.2, it clearly establishes that, the plaintiff has sold the suit schedule 64 O.S. No.26616/2013 property in favour of defendant by executing registered sale deed dated 13.12.2011 and delivered the possession in favour of defendant No.1.
49. Thereafter, the defendant No.1 has sold the suit schedule property to the defendant No.2 by executing registered sale deed dated 26.9.2012 and handed over the possession of the suit schedule property to the defendant No.2 by receiving consideration of Rs.18,72,000/. By virtue of registered sale deed all revenue records stands in the name of defendant No.2. Thus, the plaintiff had lost her title and possession over the suit schedule property by executing sale deed dated 13.12.2011 in favour of the defendant No.1 Ex.D.2. Hence, plaintiff failed to prove her possession over the suit schedule property and interference by the defendants. Thus, the plaintiff has failed to prove her ownership, possession over the suit schedule property at the 65 O.S. No.26616/2013 time of filing of the suit, under such circumstances, plaintiff is not entitled for equitable relief of injunction as guided by the Hon'ble Apex Court in the decision reported in AIR 2008 SC 2033 in case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs and Others.
The lordship have held in the decision thus:
"13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
13.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a 66 O.S. No.26616/2013 right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
13.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to 67 O.S. No.26616/2013 sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
Where Plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the Defendant a suit for an injunction simpliciter will lie."
50. Thus, in the case on hand, plaintiff failed to prove title, ownership and possession over the suit schedule property, under such circumstances, equitable relief of injunction cannot be granted. Thus, the plaintiff is not entitled for the relief of injunction as there is no question of 68 O.S. No.26616/2013 interference by the defendants. Hence, I answer issue Nos.4 & 7 in the Negative.
51. ISSUE No.8: In view of the finding on issue Nos.1 to 7, I proceed to pass the following: ORDER Suit filed by the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
(Dictated to the Stenographer directly on computer system, computerized by her, after online correction by me, printout taken by her and then pronounced by me in the open court on this the 24th day of February, 2021).
(Yamanappa Bammanagi) 73rd Addl. CC & SJ, M.H.Unit, Bangaluru. (CCH74) SCHEDULE PROPERTY All that part and parcel of immoveable property bearing No.124, New BBMP No.144/294/124, (Old Survey No.89), Doddakallasandra Village, Uttarahalli Hobli, 69 O.S. No.26616/2013 Bangaluru South Taluk, measuring East to West: 46 + 50 / 2 feet, and North to South: 30 feet, bounded on the:
East by: Property of Khode;
West by: 30 feet Road;
North by: Property No.126; and on
South by: Property No.123.
ANNEXURES
List of witnesses examined for the plaintiff's side:
P.W.1 Smt.Varalakshmi P.W.2 Sri.G.Kariyappa P.W.3 Sri.Chandrashekara Rao.B.N.
List of documents exhibited for the plaintiff's side:
Ex.P.1 Original Sale deed
Ex.P.2 EC
Ex.P.3 Khatha Extract
Ex.P.4 to 6 Certificates of BBMP
Ex.P.7 to 9 Katha Extract
Ex.P.10 to
15 Taxpaid receipts
Ex.P.16 Sale deed
Ex.P.17 EC
Ex.P.18 Khatha Extract
Ex.P.19 to
22 Taxpaid receipts
Ex.P.23 Khatha Extract
Ex.P.24 Office copy of application to BBMP
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O.S. No.26616/2013
Ex.P.25 Death Certificate
List of witness examined for the defendants' side:
D.W.1 Sri.K.Murthy List of documents exhibited for the defendants' side:
Ex.D.1 Original sale deed dt. 26.09.2012 Ex.D.2 Original sale deed dt. 13.12.2011 Ex.D.3 C/C of certificate dt. 28.07.2012 Ex.D.4 C/C of khata certificate dt. 28.07.2012 Ex.D.5 C/C of house list in the name of Mamatha issued by BBMP Ex.D.6 C/C of khata dt. 10.10.2012 Ex.D.7 C/C of khata certificate Ex.D.8 C/C of house list in the name of K.Murthy Ex.D.9 C/C of Khata transfer fee receipt Ex.D.10 C/C of sale deed bearing No.1890/199293 Ex.D.11 & 11(a to d) 5 C/C's of taxpaid receipts Ex.D.12 C/C of encumbrance certificate from 04.04.2004 to 29.06.2012 and 04.04.2011 to 03.10.2012 Ex.D.13 Original application for permission Ex.D.14 Original fee paid receipt Ex.D.15 C/C of DD Ex.D.16 Original approved plan (Yamanappa Bammanagi) 73rd Addl. CC & SJ, M.H.Unit, Bangaluru. (CCH74) 71 O.S. No.26616/2013 72 O.S. No.26616/2013 Judgment pronounced in the open court (vide separate judgment).
ORDER Suit filed by the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
(Yamanappa Bammanagi) 73rd Addl. CC & SJ, M.H.Unit, Bangaluru. (CCH74) 73 O.S. No.26616/2013 74 O.S. No.26616/2013