Bangalore District Court
M.S.Vijayakumar vs Sri. H.S.Sathyanbarayana Urala on 18 February, 2015
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
Dated this the 16th day of February 2015.
PRESENT: S.V.KULKARNI, B.Com., LLB(Spl)
XI Addl.City Civil Judge, B'lore city.
O.S.No.1497 of 2006
C.C.H.8
Plaintiff: 1. M.S.Vijayakumar,
aged about 50 years,
2. M.S.Ravi Kumar,
aged about 45 years,
3. M.S.Kuberan
aged about 43 years,
4. M.S.Ashokan,
aged about 41 years,
5. M.S.Prakashan,
aged about 39 years,
6. M.S.Gandipan,
aged about 36 years,
All are sons of late M.Subramani,
R/at No.1375, 2nd A Main road,
5th Cross, K.N.Extension,
Gokul First State,
Yeshwanthpura,
2
OS. No.1497/2006
Bangalore-22
(By Sri.H.P.L Advocate)
: Vs :
Defendant/s: Sri. H.S.Sathyanbarayana Urala, major,
S/o Late
H.V.Chandrashekar Urale,
R/at No.31, Sathya Nilaya, 1st Cross,
Model colony, Yeshwanthpura,
Bangalore-22
(By Sri. K.V.R Advocate)
Date of the institution of 20.02.2006
suit:
Nature of the suit: Specific performance
Date of the commencement 24.3.2008
of recording of the evidence:
Date on which the 16.02.2015
judgment
was pronounced :
Total Duration Year/s Month/s Day/s
08 11 26
XI Addl.City Civil Judge,
3
OS. No.1497/2006
B'lore city.
JUDGMENT
This is a suit filed by the plaintiffs against the defendant seeking the relief of specific performance of contract in respect of suit schedule property as described in the plaint schedule based upon the alleged GPA dated 7.6.1986 and affidavit cum agreement of sale dated 7.6.1986 executed by defendant's father deceased Sri. H.V.Chandrashekara Urala in favour of plaintiffs father late M.Subramani . Hence, plaintiffs have sought for the relief of specific performance of contract and also for the relief of permanent injunction against defendant from interfering with the peaceful possession and enjoyment of the suit schedule property and for other releifs.
2. The case of the plaintiffs as averred in the plaint is as follows:-
It is the case of the of the plaintiffs that the suit schedule property bearing piece and parcel of house property bearing No. 7/2, property No.1375 2nd A Main road, 5th Cross, K.N.Extension, Gokul 1st Stage, Yeshwanthpura, 4 OS. No.1497/2006 Bangalore. Originally it belongs to one Sri. H.V.Chandrashekara Urala son of C.Narayana Pille, wherein the original owner Sri. H.V.Chandrashekara Urala had leased the schedule property on a monthly rent of Rs.135/- to the father of the plaintiffs late M.Subramani son of Muthuvelu shastri earlier to 1986 and the alleged property was measuring east-west on the northern side 68 feet and on the southern side 84 ft., and north-south on the eastern side 84 feet and north-south on the eastern side 45 feet and on the western side 35 feet. At that time, a small portions i.e., four portions are tenements of ACC sheet house was existed and that these premises are leased by original owner at that time, the schedule property was not assessed with the Bangalore City Corporation or any local authority. Subsequently, the father of the defendant expressed his desire and intention to sell the schedule property that the father of the plaintiffs namely late Subramani, wherein the father of the plaintiffs late Subramani had purchased entire property for a total consideration amount of Rs.75,000/- and as the property was not assessed with Bangalore City Corporation/local board, then the Sri. H.V.Chandrashekara Urala expressed his inability to execute the sale deed in favour of plaintiffs father and on 5 OS. No.1497/2006 the contrary, the father of the defendant had executed GPA dated 7.6.1986 and also an affidavit in favour of plaintiffs father admitting the execution of GPA and receipt of sale consideration amount of Rs.75,000/- and also admitted in the said affidavit that he has sold the schedule property to the father of the plaintiffs. Hence, plaintiffs alleged that the said affidavit is nothing but an agreement of sale and thereafter, relationship of father of plaintiffs with father of the defendant seizes to the tenant and landlord and tenancy has come to an end and father of the plaintiffs has become the absolute owner in peaceful possession and enjoyment of the schedule property except execution of the sale deed and plaintiffs father late M.Subramani had exercised his rights over the schedule property after the execution of GPA and affidavit dated 7.6.1986 and he became absolute owner in possession of the schedule property and enjoying the property in the capacity of absolute owner and he which are sin possession and enjoyment of the same. It is further case of the plaintiffs that the children of late Subramni had grown up and 3 of them were married and there was dispute arisen between women folks and children of late Subramni and in order to keep the family in harmony and peace and also to maintain 6 OS. No.1497/2006 relationship of father and sons, plaintiffs father had divided the schedule property amongst his sons under a partition/ palu patti dated 10.5.1980 and as per the said palu patti, schedule "A" property fell into the share of Vijayakumar, schedule "B" property fell into share of Ravi Kumar, schedule "C" property fallen to the share of Kuberan, schedule "D" property fallen to the share of Ashokan, schedule "E" property fallen to the share of Prakashan, schedule "F" property fallen to the share of Gandipan and it is further alleged by the plaintiffs that the schedule property earlier it was small portion of 4 tenements of ACC sheet house and after plaintiffs father purchased these four tenements (schedule property), he is developed the said property fully by spending thousands of rupees to make suitable of six tenements for residential purpose of full-fledged house and also used new asbestos sheets. The portion of the property fallen to the share of Vijayakujmar is of half built area and subsequently it was fell down and property fallen to the share of Gandipan is now vacant site and after the construction of the building, power supply has been enhanced, but the meter standing in the name of original person and the plaintiffs have approached the competent authorities for the transfer and electrical meters 7 OS. No.1497/2006 and the same is pending and plaintiffs repaying electricity charges regularly.
Further plaintiffs pleaded that time and again the father of the plaintiffs M.Subramani requested the defendant's father Sri. H.V.Chandrashekara Urala to execute registered sale deed in their favour at their costs, but Sri. H.V.Chandrashekara Urala was postponed to execute the sale deed on the pretext that katha has not been transferred and he making hectic efforts with the concerned authorities to get change katha in his name and the property subjected to assessment with the local board and as such, execution f the sale deed has been protracting time and again, subsequently Sri. H.V.Chandrashekara Urala died on 25.12.1994 and after his death, it was brought to the notice of the defendant herein about the execution of GPA/affidavit in favour of father of the plaintiff and subsequent events of parties held between sons of M.Subramni and his sons in respect of the tenanted premises wherein defendant admitted the execution of power of attorney, affidavit cum agreement of sale and also requested the father of plaintiffs to get the sale deed executed in respect of the persons favour, after getting the property assessed with Bangalore City Corporation after 8 OS. No.1497/2006 change of katha and defendant had promised the plaintiff of execution of sale deed, but after the death of defendant's father though plaintiffs and their father approached the defendant with the request to execute the sale deed, but he was protracting to execute the sale deed and defendant has given false and evasive reply and defendant refused to execute the sale deed and hence, on account of death of father of defendant, the sale deed was not executed and there was delay in execution of sale deed and subsequently plaintiffs father divided the property on 10.5.1988 and subsequently the defendant has filed HRC No.409/2004 to 412/2004 making a false allegations against the plaintiffs and filed these frivolous, vexatious petitions knowingly that defendant is quite aware of the sale transaction entered between his father and defendant has filed these eviction petitions and thereafter, plaintiffs got issued legal notice calling upon the defendant to come and execute the sale deed on 26.8.2005 and defendant had received the said legal notice and defendant has issued suitable reply to the said notice, wherein the defendant had denied the execution of GPA/affidavit cum sale agreement by his father in favour of plaintiffs father dated 7.6.1986. The plaintiffs further alleged that they are ever ready and willing to perform their 9 OS. No.1497/2006 part of contract in obtaining the sale deed executed from the defendants, wherein the entire sale consideration amount in respect of schedule property was already paid to the defendant's father and plaintiffs are in possession and enjoyment of the schedule property under part performance of contract and defendant denied the execution of GPA/affidavit cum sale agreement and refused to execute the sale deed in his reply notice and the conduct and attitude of the defendant in filing false eviction petitions against plaintiffs, wherein the defendant denied to execute the sale deed and on the contrary, he denied the execution of GPA and affidavit cum sale agreement dated 7.6.1986 executed in favour of plaintiffs father and hence, plaintiffs are constrained to file the suit against plaintiffs for the relief of specific performance of contract relying upon the cause of action as state din para No.3 of the plaint contending that the cause of action for the suit arose on 7.6.1986 after execution of GPA/affidavit cum sale agreement and thereafter, the defendant showed his hostile attitude by filing false eviction petition against plaintiffs and subsequently on 16.8.2005 when plaintiffs have caused legal notice and defendant in reply notice refused to execute the sale deed. Hence, plaintiffs have alleged that they have 10 OS. No.1497/2006 filed the suit seeking the relief of specific performance of contract in respect of alleged GPA/affidavit cum sale agreement dated 7.6.1986 and also prayed for consequential relief of permanent injunction alleging that the possession of the plaintiffs should be disturbed or obstructed by the defendant in any manner till execution of the sale deed. Hence, this suit.
3. The defendant in response to the suit summons issued by this court appeared and filed written statement denying the averments and allegations made in the plaint by the plaintiffs and defendant further contended that suit is not maintainable and there is suppression of material facts and circumstances of the plaintiffs is hopelessly barred by limitation. The defendant has denied that originally the schedule property was leased by his father Sri. H.V.Chandrashekara Urala in favour of plaintiffs father late Subramni on monthly rent of Rs.135/-. On the other hand, the defendant contended that schedule property was leased in favour of plaintiff No.1 to 3 and defendant denied the measurement as given by the plaintiffs in respect of schedule property and defendant had denied that his father late Sri. H.V.Chandrashekara Urala executed GPA dated 7.6.1986 and an affidavit cum sale agreement in favour of 11 OS. No.1497/2006 deceased Subramani father of the plaintiffs and also denied receipt of entire sale consideration amount of Rs.75,000/- on 7.6.1986 and also he further denied parting of possession of schedule property in favour of defendant plaintiffs father Subramni under part performance of contract. On the contrary, the defendant contended that his father has neither executed a GPA nor affidavit cum sale agreement nor received any consideration amount from the plaintiffs father and also possession has not been delivered under part performance of contract. The defendant contended that alleged document produced by the plaintiffs are fabricated and got up document to knock off the suit schedule property and the said documents are not pertaining to suit schedule property and defendant contended that his fathers name is Vasudeva Urala and not C.Narayana Pillai and defendant denied that schedule property was leased on a monthly rent of Rs.135/- to the father of the plaintiffs late Subraman. Defendant admitted that originally the schedule property consisting 4 small tenements of ACC sheets house were existed and defendant denied the plaintiffs allegations that his father had offered to sell the schedule property in favour of plaintiffs father on 7.6.1986 for sale consideration amount of Rs.75,000/- and plaintiffs father had agreed to 12 OS. No.1497/2006 purchase the schedule property for said amount of consideration and plaintiffs father had paid entire sale consideration amount to defendant's father on 7.6.1986 and defendant's father agreed to convey the sale deed after change of katha in respect of suit schedule property in the corporation records. Hence, defendant in para No.5 of the written statement specifically denied the execution and attestation of GPA dated 7.6.1986 coupled with affidavit of the very day acknowledging the receipt of sale consideration amount agreeing to convey the schedule property and defendant specifically contended that alleged document produced by the plaintiffs are fabricated and got up document to knock of the property. Defendant further contended that when he has specifically denied the alleged document, GPA and affidavit cum sale agreement in favour of plaintiffs, question of plaintiffs father exercising his rights over the schedule property by virtue of alleged document and he enjoying the schedule property as owner thereof does not arises and defendant further denied the allegations of the plaintiffs that plaintiffs father late Subramni had divided the schedule property in favour of his son under palu patti dated 10.5.1988 and defendant further denied that the father of the plaintiffs had invested 13 OS. No.1497/2006 thousands of rupees in developing the properties and made suitable residential accommodation of tenements for residential purpose and defendant further denied that the property was fallen to the share of Vijayakumar was half built up area and he was subsequently it was fell down and property fallen to the share of Gandiappan is now vacant site. Hence, defendant denied the entire plaint allegations and also denied the execution of GPA and affidavit cum sale agreement dated 7.6.1986. However, defendant admits that his father Sri. H.V.Chandrashekara Urala died on 25.12.1994 and defendant denied that after demise of his father, the plaintiffs have brought to his notice regarding GPA and sale agreement cum affidavit executed by defendant's father late Sri. H.V.Chandrashekara Urala. The defendant also denied the averments made in para No.10 of the plaint and further denied that plaintiffs and their father approached him with a request to execute sale deed and for that, he postponed to execute the sale deed by giving evasive reply and answer. The defendant admits that he has filed HRC cases for eviction of the plaintiffs in HRC No.409/2004 to 412/2004 and the said evictions petitions are still pending and defendant admits that plaintiffs have caused legal notice to him calling upon him to execute sale 14 OS. No.1497/2006 deed vide legal notice dated 26.8.2005 and defendant contended that he has issued a suitable reply to the said legal notice and defendant denied the plaintiffs readiness and willingness to perform their part of the contract in execution of the sale deed and also defendant denied that plaintiffs father had already paid entire sale consideration amount in respect of suit schedule property of amount of Rs.75,000/-. The defendant further denied the averments made in para No.12 of the plaint and also denied cause of action as denied by the plaintiffs and on the contrary, defendant contended that said cause of action is created based on the fabricated document and plaintiffs have not paid proper court fee.
The defendant in para No.17 of the written statement contended that his father Sri. H.V.Chandrashekara Urala was the owenr of the schedule property bearing site No.8 formed in Sy.No.47/2 No.1375, 5th cross, Santhosh Bar Road, 2nd "A" Maina road, Gokul, 1ststage, 2nd phase, Bangalore city measuring east-west 45 ft and north-south eastern side 40 feet and western side 35 feet with well and asbestos sheets houses thereon. The mother of the defendant Smt. Rukminiyamma was the owner and 15 OS. No.1497/2006 land-lady of property bearing site No.1 formed in Sy.No. 7/2, 5th cross, Santhosh Bar Road, 2nd "A" Maina road, Gokul, 1st stage, 2nd phase, Yeshwanthapura, Bangalore city measuring east-west 45 feet, north-south 46 feet and western side 40 feet with two ACC sheets houses and both these properties are adjoining each other, wherein the defendant's father Sri. H.V.Chandrashekara Urala was the owner of aforesaid property only and not for both the properties and plaintiff No.1 to 3 are the tenant in respect of different portions in the above said properties under defendant's father and paying rents to him and plaintiff No.1 to 3 have executed lease deeds in favour of defendants under registered sale deed dated 25.3.1992 and as such, the defendant has become absolute owner of both the properties after demise of their parents and plaintiff No.1 to 3 have become tenants under the defendant and as plaintiffs No.1 to 3 have failed to pay rents to defendant and thereby he has filed eviction petitions against plaintiffs in HRC cases No.409 to 411 of 2004 respectively on the file of Additional Small Cause Judge at Bangalore. Hence, defendant contended in his written statement that the alleged document relied by the plaintiffs i.e., GPA and affidavit cum sale agreement dated 7.6.1986 are forged, 16 OS. No.1497/2006 concocted and got up documents to knock off the valuable properties belongs to defendant and if these forged documents are come to the light, this defendant reserves his right to initiate necessary criminal proceedings against plaintiffs for an offence under the provisions of IPC. Hence, the defendant contended that the suit of the plaintiff is suppression of material facts, frivolous, vexatious and scandalous and hence, on these defence, the defendant resisted the suit and pray for dismissal of the suit with costs and exemplary costs in the interest of justice and equity.
4. Based upon these pleadings, the following issues are framed for trial of the suit :-
1. zÁªÁ D¹ÛAiÀÄ£ÀÄß 75,000/- gÀÆ.UÀ½UÉ ªÀiÁgÁl ªÀiÁqÀ®Ä M¦à ²æà ZÀAzÀæ±ÉÃRgï GgÀ®gÀªÀgÀÄ ¢B 7-6-1986 gÀ ¸ÀªÁð¢üPÁgÀ ¥ÀvÀæ ªÀÄvÀÄÛ ¥ÀæªÀiÁt ¥ÀvÀæ §gɬĹ PÉÆlÄÖ ¥ÀÇvÁð PÀæAiÀÄzÀ ºÀt 75,000/-
gÀÆ.UÀ¼À£ÀÄß vÀ«ÄäAzÀ ¹éÃPÀj¹zÁÝgÉA§ÄzÀ£ÀÄß ªÁ¢AiÀÄgÀÄ ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀgÉà ?
2. zÁªÁ D¹ÛAiÀÄ£ÀÄß ¢B 7-6-1986 gÀAzÀÄ vÀªÀÄä ¸Áé¢üãÁ£ÀĨÀsªÀPÉÌ ©lÄÖ PÉÆnÖzÁÝgÉA§ÄzÀ£ÀÄß ªÁ¢AiÀÄgÀÄ ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀgÉà ?
3. zÁªÁ D¹ÛAiÀÄ §UÉÎ ±ÀÄzÀÞ PÀæAiÀÄ ¥ÀvÀæ §gɬĹ £ÉÆÃAzÁ¬Ä¹PÉƼÀî®Ä vÀªÀÄä ¥Á°£À J®è PÀvÀðªÀåUÀ¼À£ÀÄß ¤ªÀð»¸À®Ä ¸ÀzÁ Eaѹ 17 OS. No.1497/2006 vÀAiÀiÁgÁVgÀĪÀÅzÀ£ÀÄß ªÁ¢AiÀÄgÀÄ ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀgÉà ?
4. zÁªÉAiÀÄÄ CªÀ¢ü ¥Àj«Äw¬ÄAzÀ ¨Á¢üvÀªÁVzÉAiÉÄà ?
5. ¢B 7-6-1986 gÀ ¸ÀªÁð¢üPÁgÀ ¥ÀvÀæ ªÀÄvÀÄÛ ¥ÀæªÀiÁt ¥ÀvÀæUÀ¼À C£ÀéAiÀÄ ¤¢üðµÀÖ PÀvÀðªÀå ¥Á®£ÉUÁV ¥ÀæwªÁ¢AiÀÄ «gÀÄzÀÞ rQæ ¥ÀqÉAiÀÄ®Ä ªÁ¢AiÀÄgÀÄ CºÀðgÉà ?
6. ¥ÀæwªÁ¢AiÀÄ «gÀÄzÀÞ ±Á±ÀévÀ ¥Àæw§AzÀsPÁYÕÉ ¥ÀqÉAiÀÄ®Ä ªÁ¢AiÀÄgÀÄ CºÀðgÉà ?
7. rQæ CxÀªÁ DzÉñÀªÉãÀÄ ?
5. In order to prove their respective oral and documentary evidence, wherein plaintiff No.6 is examined as PW.1 and got marked Ex.p.1 to P.8 and plaintiff No.1 is examined as P.W.2 in the above case and with this evidence, plaintiffs side evidence is closed. Thereafter defendant himself is examined as D.W.1 and got marked documents Ex.D.1 to D.11 in his oral evidence and with this evidence, defendant side evidence is closed and thereafter, suit is posted for arguments.
6. Heard the arguments of counsel for plaintiffs and counsel for defendant, wherein the counsel for defendant also filed his written arguments in the above suit on 18 OS. No.1497/2006 29.1.2015 and this written arguments is accepted on record, wherein the counsel for the plaintiff submitted his arguments orally in the above suit and also relied upon the following decisions in support of his arguments.
In support of his case the counsel for plaintiff has relied upon the following decisions:-
1. AIR 1997 Kar 375(Munisettappa and others Vs. B.Krishnappa and another)
2. (2012)5 SCC 712(Narinderjit Singh Vs. North Star Estate Promoters Limited);
3. (2012) 5 SCC 403( Prakash Chandra Vs. Narayan)
4. AIR 2002 SC 612( Mool Chand Bakhru and another Vs. Rohan and others)
5. AIR 2004 S.C 3854 ( Mahadeva Vs. Tanabai)
6. ILR 2010 Kar 765 ( Syed Zaheer and others Vs. C.V.Siddaveerappa);
7. 2010 (3) SCC 1 ( Trimex International Fze Limited, Vs. Vedanta Aluminium Limited) In support of his case the counsel for defendant has relied upon the following decisions:-19
OS. No.1497/2006
1. AIR 2004Madras 313(R.Chinnadurai Vs. Rajalakshmi)
2. AIR 2003 Punjab and Hariyana 36 ( Sujan Kumar Vs. Chand Singh);
3. 2012 (4) KCCR 3282(T.Muniyappa Vs. H.Eshwarasa and others)
4. AIR 2011 Kar 58(Parvathamma Vs Uma)
5. AIR 2003 DEL 202,(Ramesh Kumar Vs. Chaman Lal)
6. 2012(5) KCCR SN 317(SC)(Shanker Singh Vs. Narinder Singh)
7. 2012(4) KCCR 3430,(Manjegowda Vs. M.R.Manjegowda and others)
8. 2012(1) KCCR 428 (DB)( Deepak Rajani Vs. K.B.Pampapathi since deceased by his LRs )
9. 2012(5) KCCR SN 442(Basamma and others Vs. Devamma and another)
10. AIR 1987 SC 2328(P.V.Joseph's son Mathew Vs. N.Kuruvila's son)
11. 2005(2) KCCR 831Janakibai and another Vs. Shyamasundar Rander)
12. ILR 1995 kar 570 (Ramachandraiah Vs. Nagappa Naidu) 20 OS. No.1497/2006
13. AIR 2006(NOC) 1216(BOM)( Ramchitra R.Singh Vs. Ramesh L.Agrawal and others)
14. The Karnataka Prevention of Fragmentation and Consolidation of Holdings Act 1990
7. Hence, after perusal of pleadings of the parties and on appreciation of evidence of P.W.1 and 2 and Ex.P.1 to P.8 and on appreciation of evidence of D.W.1 and Ex.d.1 to D.11 marked for the defendant and considering the arguments contention and also considering the ratio of the decisions cited on both sides, I answer the above issues are as follows:-
Issue No.1 to 3: In the negative
Issue No.4: In the affirmative;
Issue No.5: In the negative;
Issue No.6: In the negative;
Issue No.7: The suit filed by the plaintiffs
deserves to be dismissed
without any order as to costs
for the following reasons:-
REASONS
21
OS. No.1497/2006
8. Issue No.1 to 3: These issues are interconnected
to each other and hence, they are taken up for discussion together in order to avoid repetition and facts and evidence.
This suit is filed by the plaintiffs, who are the LRs of deceased M.Subramani for the relief of specific performance of contract in respect of affidavit cum agreement of sale dated 7.6.1986 and GPA executed by deceased Sri. H.V.Chandrashekara Urala, the father of the defendant herein in respect of suit schedule property and it is the case of the plaintiffs that late Sri. H.V.Chandrashekara Urala , the father of the defendant was the absolute owner of the suit schedule property described in the plaint schedule, wherein the father of the plaintiff M.Subramani was a tenant in respect of schedule property under deceased Sri. H.V.Chandrashekara Urala prior to 1986 on a monthly rental of Rs.135/- and subsequently, the father of the defendant offered to sell the schedule property in favour of father of the plaintiffs and after negotiations, the father of the defendant agreed to sell the schedule property for a sale consideration amount of Rs.75,000/- and executed GPA in favour of plaintiffs father M.Subramani on 6 7.6.1986 and also executed affidavit acknowledging the receipt of entire sale consideration amount paid on that day by deceased 22 OS. No.1497/2006 M.Subramani to defendant's father of Rs.75,000/- and on that day, defendant's father executed affidavit cum agreement of sale dated 7.6.1986 and also GPA in favour of plaintiffs father and confirmed the possession of plaintiffs father M.Subramani under part performance of contract and as such, from 7.6.1986 the tenancy between plaintiffs father M.Subramani and defendant's father Sri. H.V.Chandrashekara Urala seizes and it is the case of the plaintiffs that plaintiffs father continued his possession in respect of schedule property under part performance of contract and hence, plaintiffs have alleged that their father came in possession of the schedule property as agreement holder under Sec. 53A of T.P.Act and their possession continued in respect of schedule property and accordingly, plaintiffs have pleaded that their possession is on the basis of affidavit cum agreement of sale dated 7.6.1986 and their possession is in pursuance of part performance of contract under Sec. 53A of T.P.Act and it is also case of the plaintiffs that as there was prohibition for sale of revenue sites constructed over the property due to Fragmentation and Hoarding of Consolidation Act 1966 and deceased father f defendant agreed to execute sale deed after removal of ban/prohibition of registration of the properties, but 23 OS. No.1497/2006 subsequently he died on 25.12.1994 and thereafter, plaintiffs father requested the deceased father of defendant for execution of the sale deed during his life time and after his death, the present defendant and other legal heirs of deceased Sri. H.V.Chandrashekara Urala , but the LRs of deceased Sri. H.V.Chandrashekara Urala did not came forward to execute the sale deed and hence, the plaintiffs have caused legal notice dated 26.8.2005 and defendant herein had given false evasive reply denying his sale agreement and affidavit and GPA executed by his late father and accordingly, plaintiffs have approached this court for the relief of specific performance of contract. The defendant in his written statement denied the execution of the GPA, affidavit cum agreement of sale dated 7.6.1986 and also denied parting of possession of schedule property to deceased M.Subramani, father of the plaintiffs under part performance of contract and on the contrary, defendant contended that his father was the owner of site No.8 and his mother Rukminiyamma was the owner of the site No.1 and these two properties are situated at Santhosh Bar road, adjacent to each other and defendant's parents are absolute owners of the property, who are adjoining to each other and they have purchased under sale deed dated 24 OS. No.1497/2006 8.3.1963 and katha was standing in their name and hence, the father of the defendant was not exclusive owner of suit schedule property and defendant also denied late M.Subramani was tenant under his father on a monthly rental of Rs.135/- and on the contrary, the alleged documents relied by the plaintiffs, the GPA affidavit cum agreement of sale dated 7.6.1986 are created after demise of defendant's father and defendant contended that plaintiff No1. to 3 herein are the tenants in respect of the portion of schedule property and he filed HRC cases against plaintiff No.1 to 3 and another tenant M.S.Pandian in HRC No.s 409 of 2004 to 412 of 2004 before the Additional Small Causes Court, Bangalore and the said HRC cases came to be dismissed directing the parties to approach civil court and accordingly, he has preferred HRRP before Hon'ble High Court against judgment and decreed passed in HRC cases No.409 of 2004 to 412 of 2004 and now HRRP are pending before the Hon'ble High Court. Hence, defendant contended that his father and mother, who are the exclusive owners of the properties, which are adjacent to each other bearing Sy.No. 7/2, property No.1375, 5th cross, Santhosh Bar Road, 2nd "A" Maina road, Gokul, 1st stage, 2nd phase, Yeshwanthapura, Bangalore city, wherein the defendant's 25 OS. No.1497/2006 father had purchased his eastern half portion under sale deed dated 8.3.1963 and remaining half portion was purchased by defendant's mother Rukminiyamma and defendant's father was the owner of property measuring east-west 45 ft.,, north-south eastern side 40 ft., and western side 35 ft., with well and Asbestos sheets houses therein and Rukminiyamma, the mother of defendant was the land-lady of the property bearing site No.1, formed in Sy.No.7/2 5th cross, Santhosh Bar Road, 2nd "A" Main road, Gokul, 1st stage, 2nd phase, Yeshwanthapura, Bangalore east-west measuring 45 ft., and north-south eastern site 45 ft., and western side 40 ft., with two ACC sheet houses and these two properties are adjoining to each other and accordingly, plaintiff No.1 to 3 were tenants in respect of different portions in the aforesaid properties under defendant's father and plaintiff No.1 to 3 have executed lease deed in favour of defendant's father and subsequently defendant's father and mother, who are the owners of both these properties have bequeathed the said properties by execution of registered "Will" dated 25.3.1992 and plaintiff No.1 to 3 are the tenants under defendant and as they have defaulted in payment of rent and accordingly, defendant had filed HRC petition for eviction of the plaintiffs.
26OS. No.1497/2006 Hence, with these rival contention parties have adduced their respective oral and documentary evidence , wherein the 6th plaintiff is examined as P.W.1 and got marked documents in his oral evidence as per Ex.P.1 to P.6 and also P.W.1 further examined on 18.8.2009 and got marked certified copies of judgment passed in HRC No.410/2004, 411/2004 and 412/2004 marked as per Ex.P.7 and P.8 and plaintiff No.1 is examined as P.W.2 and he identified his signature on Ex.P.1, GPA marked at Ex.P.1(b) and signature of defendant's father is marked at Ex.P.1(a) and signature of plaintiffs father M.Subramani is marked as Ex.P.1(b) and signature of attesting witness by name Anjinappa is marked at Ex.P.1(c).
Hence, P.W.1 and P.W.2 relying upon their oral evidence filed in the form of affidavit evidence under Order 18 Rule 4 of CPC and coupled with Ex.P.1 to P.8 and have prayed for grant of specific performance relief and against defendant herein in respect of suit schedule property and on perusal of the evidence of P.W.1 and 2, wherein their evidence reveals that P.W.1 and 2 have reiterated the facts as pleaded by them in the pleadings filed in this case and P.W.1 deposed that his father M.Subramani died on 27 OS. No.1497/2006 5.6.2002. The documents marked through P.W.1 are Ex.P.1 is the GPA dated 7.6.1986 (Unregistered document) drawn on stamp paper of Rs.25/- dated 7.6.1986 and Ex.P.2 is the panchayath Parikath held between late M.Subramani and his sons plaintiffs 1 to 6 herein dated 10.5.1988 and Ex.P.3 is the receipt standing in the name of one Chikkamuthaiah, Ex.P.4 is the demand bill issued by BESCOM in respect of electrical installations bearing RRNo.LG 26652 and Ex.P.5 is the office copy of legal notice dated 26.8.2005, Ex.P.5(a) is the postal receipt , 5(b) is the postal acknowledgment for having served the legal notice on defendant on 29.8.2005 and Ex.P.5(c) is the UPC certificate dated 26.8.2005 and Ex.P.6 is the reply notice dated 8.9.2005, Ex.P.7 is the certified copy of judgment in HRC No.410/2004 and Ex.P.8 is the certified copy of judgment in HRC No.409 and 411 of 2004.
9. The counsel appearing for the defendant cross examined P.W.1, wherein P.W.1 admits that the suit schedule property measuring east-west 85ft + 65/2 ft.,, north-south 45 + 35/2 ft and this property is not existed in KN Extension and this property since 3 years ago has been vested with the jurisdiction of Yeshwanthapur C.M.C. However, P.W.1 denied that the plaint schedule property is 28 OS. No.1497/2006 consisting of two sites measuring east-west 90 ft., and north-south 46+ 35/2 ft., and P.W.1 denied that the suit schedule property consisting of site No.1 and site no.8 and site No.8 belongs to defendant's father and site No.1 belongs to defendant's father Rukminiyamma and P.W.1 admits that defendant's father was having 5 children including defendant, they are H.C.Nagarathna D.Holla, H.C.Mahalakshmi, H.C.Gayathri and H.C.Rajeswari, whoa re the sisters of defendant and P.W.1 denied his knowledge that father's name of Sri. H.V.Chandrashekara Urala is Vasudev Urala and not Narayana Pillai and P.W.1 stated that he has to search for the documents to show that his father was the tenant under defendant's father on monthly rent of Rs.135/- and P.W.1 denied that defendant's father did not leased out the schedule property to his father and on the contrary, defendant's father had leased the schedule property in favour of his brothers and another tenanted property was leased by defendant's father to Veerapandathevar and P.W.1 stated that he has leased the property in favour of Veerapandathevar and got possession after evicting him and he has got documentary evidence and the said document is with his brother M.S.Vijayakumar and P.W.1 admits that the defendant had 29 OS. No.1497/2006 filed HRC cases against his brothers and Veerapandathevar and he has deposed in this case and P.W.1 admits that himself and his brother had filed caveat petition against defendant and he do not know whether the plaintiffs have disclosed about the existence of GPA/affidavit dated 7.6.1986 in the caveat petition filed by them and P.W.1 stated that father of defendant had executed GPA and affidavit dated 7.6.1986 near RTO office at Yeshwanthapura before the Notary Public and P.W.1 denied that deceased father of defendant did not execute any GPA much less affidavit cum agreement of sale dated 7.6.1986 and also he has not received any consideration amount of Rs.75,000/- and P.W.1 stated and admitted that they have not issued legal notice till 1994 to deceased father of defendant demanding to execute the sale deed and P.W.1 admits that father of defendant died on 25.12.1994 and P.W.1 stated that as there was prohibition/ban for registration of the schedule property. Hence, his father could not obtained the sale deed and P.W.1 admits that after demise of defendant's father, they knew that Sri. H.V.Chandrashekara Urala had left 5 children and P.W.1 admits that there was no document to show that plaintiffs have requested the wife of Sri. H.V.Chandrashekara Urala and their children to 30 OS. No.1497/2006 execute sale deed from 1986 to 2004 till filing of HRC cases and P.W.1 denied that his father nor plaintiffs never demanded the defendant or his father to execute sale deed.
10. In the further cross-examination, P.W.1 stated that he has enquired about the notary by name S.B.Chandrashekar, who has attested Ex.P.1 and he has enquired about Anjinappa, who is attesting witness of Ex.P.1 and P.W.1 denied that still the Notary Public, S.B.Chandrashekar is discharging functioning as Notary in the premises of Deputy Commissioner office and he did not enquired about the other witness Venkatanarayanappa , who has signed in Ex.P.2 and D.W.1 denied that his mother had filed application on 3.8.2005 seeking transfer of katha in her name and P.W.1 denied that prior to 1.4.1965 , the katha of the schedule property was already transferred in the name of defendant's mother in respect of site No.1 and katha of site No.8 was transferred in the name of defendant's father prior to 1.5.1965. P.W.1 admits that he does not verified the original title deed of the schedule property and P.W.1 denied that the eastern half portion of schedule property was purchased by Rukminiyamma on 8.3.1963 under sale deed and western half portion was purchased by defendant's father Sri. H.V.Chandrashekara 31 OS. No.1497/2006 Urala under sale deed dated 8.5.1963 and P.W.1 also denied that the defendant had preferred HRRP against judgment in HRC No.409/2004 to 411/2004 and the said revision petitions are pending before Hon'ble High Court and P.W.1 admits that he has not paid tax to the schedule property since 7.6.1986 and P.W.1 voluntarily stated that since the schedule property is not yet conveyed by registration of the sale deed. Hence, he has not paid the tax and P.W.1 denied his knowledge that Government has lifted the ban after 1991 for registration of revenue sites and P.W.1 clearly admits that he has not issued legal notice to defendant's father demanding execution of sale deed and P.W.1 denied that Ex.P.1 and Ex.P.2 are created after demise of defendant's father on 25.2.1994 and P.W.1 denied his knowledge regarding bequeathing of schedule property in favour of defendant by his parents under two separate registered "Will deeds" dated 25.3.1992 and P.W.1 denied that defendant's mother Rukminiyamma had expired.
11. P.W.2, who is the brother of P.W.1 and plaintiff No.1 in this suit. He deposed through affidavit evidence and P.W.1 is examined to identify his signature on Ex.P.1 GPA produced in this case. P.W.2 deposed in his evidence regarding the purchase of property by his father late 32 OS. No.1497/2006 M.Subramani from defendant's father under Ex.P.1 and P.2 and P.W.2 identified Ex.P.1 GPA and identified his signature and signature of Sri. H.V.Chandrashekara Urala and late father M.Subramani as per Ex.P.1(a) and P.b) and signature of attesting witness Anjinappa as per Ex.P.1(c).
12. The counsel for defendant cross examined P.W.2, wherein, he admits site No.8 is formed in Sy.No.7/2 and measurement of site No.8 measuring 46 ft., east-west and north-south 40 ft., and towards west 35 ft., and P.W.2 denied that Sri. H.V.Chandrashekara Urala had purchased site No.8 under sale deed dated 8.6.1963 and he admits that site No.1 formed in Sy.No.7/2, but he denied its measurements measuring east-west 45 ft., and north-south 46 ft., towards east and towards west, it is measuring 36 ft., and P.W.2 denied that site No.1 is purchased by defendant's mother Rukminiyamma under sale deed dated 8.5.1963 and P.W.2 admits that he has no documents to show that the entire schedule property belongs to defendant's father Sri. H.V.Chandrashekara Urala and P.W.2 admits that defendant had filed HRC case in HRC No.411/2004 and he has filed this case after defendant had filed HRC case for eviction and P.W.2 also admits that the defendant has filed HRC case against his brother namely Kuberan and Ravikumar and 33 OS. No.1497/2006 P.W.2 admits that defendant had filed HRC case against Veerapandyathevar and P.W.2 admits that the defendant had issued legal notice alleging that they have not paid the rent in respect of schedule property through his counsel prior to institution of HRC cases and P.W.2 admits regarding filing of caveat petition by plaintiff No.1 to 3 and P.W.2 denied that there was no impediment for them to disclose in the caveat petition regarding alleged GPA/affidavit cum agreement of sale dated 7.6.1986 and P.W.2 admits that K.N. Extension is also called as Gokhul Extension, Yeshwanthapura and P.W.2 stated that Ex.P.1 GPA and affidavit Ex.P.2 are executed by defendant's father in front of Eswara temple and at that time, his father M.Subramani , attesting witness Anjinappa , Pandoian and his brother Prakash and himself were present and P.W.2 denied his knowledge about attesting witness Anjinappa is alive or not and likewise Notary Public S.P.Chandrashekar is alive or not and P.W.2 denied that defendant's parents did not execute any alleged GPA or affidavit cum agreement of sale dated 7.6.1986 and P.W.2 denied that on 1.4.1965, the katha of the schedule property was standing in the name of Sri. H.V.Chandrashekara Urala and his wife Rukminiyamma and P.W.2 admits that since 7.6.1986, his 34 OS. No.1497/2006 father did not gave any notice in writing showing readiness and willingness and demanding to execute the sale deed to defendant or his late father Sri. H.V.Chandrashekara Urala and P.W.2 admits that his mother had given application seeking for change of katha before corporation after filing of the suit and corporation authority have issued endorsement stating that this case is pending and w2 stated that the reasons for non filing of this suit from 1994 till 2006 even after demise of defendant's father hoping that defendant will execute sale deed in respect of suit schedule property and P.W.2 denied that katha of the schedule property is still existed in the name of defendant's father and mother and P.W.2 denied that himself and his brother are tenants under defendant's father and P.W.2 also denied that the defendant has preferred appeal against HRC judgment and P.W.2 denied about the "Will" executed by defendant's father and mother dated 25.3.1992 and P.W.2 admits that Ex.P.4 and P.5 are not concerned to schedule property and they are not standing in their name and he denied that Ex.P.3 is created for the purpose of this suit.
13. Defendant has given rebuttal evidence as he is examined as D.W.1 by filing affidavit evidence under Order 18 Rule 4 of CPC, wherein on perusal of the evidence of 35 OS. No.1497/2006 defendant deposed in the form of affidavit, wherein he denied the case of the plaintiffs and also D.W.1 has given evidence reiterating the written statement contention raised by him in this suit in his oral evidence filed in lieu of examination-in-chief. Hence, from perusal of affidavit of D.W.1, wherein he denied specifically Ex.P.1 to P.3 relied by the plaintiffs and on the contrary, D.W.1 stated that plaintiff No.1 to 3 are the tenants under him in respect of 4 ACC sheet rooms constructed in site No.1 and 8 which are adjacent to each other and plaintiff No.1 to 3, who are defaulters in payment of rent and accordingly, he has filed HRC cases in HRC No.409/ 2004 to 412/2004 and the said cases are disposed off on the file of Small Causes Court and D.W.1 stated that his father and mother are the joint owners of schedule property consisting of Sy.No.7/2 in site No.1 and 8 and as such, his father late Sri. H.V.Chandrashekara Urala, who which are snot having exclusive right to execute alleged GPA and affidavit cum agreement of sale dated 7.6.1986 and hence, D.W.1 stated that the alleged document Ex.P.1 and Ex.P.2 are created and D.W.1 stated that his father's name is Sri. H.V.Chandrashekara Urala son of Vasudev Urala. Ex.P.1 and P.2 are appearing with wrong name of his father as 36 OS. No.1497/2006 Narayana Pillai. Hence, D.W.1 denied the execution of Ex.P.1 and Ex.P.2 by his late father Sri. H.V.Chandrashekara Urala in favour of plaintiffs father M.Subramani and D.W.1 relied upon documentary evidence marked through his evidence from Ex.D.1 to D.11. The said documents are marked through D.W.1 are as follows:-
Ex.D.1 sale deed dated 22.1.1962, Ex.D.2 is the sale deed dated 8.3.1963, Ex.D.3 is the sale deed dated 8.3.1963, Ex.D.4 and D.5 are the Notices issued by BBMP to parents of D.W.1, Ex.D.6 and D.7 are the certified copies of Will deed dated 25.3.1992, Ex.D.8 is the certified copy of caveat petition, Ex.D.9 is the certified copy of sale deed and Ex.D.10 and 11 are the two rent receipts.
14. The learned counsel appearing for the plaintiffs cross examined D.W.1 on 9.10.2013, wherein it is elicited through D.W.1 that entire suit schedule property bearing Sy.No.7/2 measuring east-west on the northern side is 68 ft., and southern side 84 ft., and north-south on the eastern side 45 ft., and western site 35 ft., However, D.W.1 voluntarily stated that this measurement is comprising of two properties and D.W.1 stated that he has not yet transferred katha in his name in respect of the above 37 OS. No.1497/2006 stated two properties and he has produced documents to show that these two properties are standing in the name of his father and mother respectively. D.W.1 admits that his father died on 25.12.1994 and his mother died on 15.1.2000 and D.W.1 admits that even after death of his parents, he did not made attempts to get changed his name in the katha extract and D.W.1 denied that plaintiffs father was tenant on a monthly rent of Rs.135/- in the year 1984 and D.W.1 admits that he has filed HRC cases in No.409 of 2004 to 412/2004 respectively for recovery of rent and D.W.1 stated that the original "Will" executed by his parents have been misplaced and for that reason, he has produced the certified copy of "Will" and D.W.1 admits that he has lost original "Will" after filing of the suit and for that, he has not filed complaint before the Police Station alleging that the original "Will" was lost and he denied the custody of original "Will" and he is deposing falsely regarding loss of original "Will" and D.W.1 admits that his father was having another property other than the suit schedule property and D.W.1 admits that his father was having bank account in Syndicate Bank and also in Karnataka Bank, Yeshwanthapura Branch and he has not surrendered the pass-book issued to his father either to Syndicate bank or 38 OS. No.1497/2006 to the Karnataka Bank and D.W.1 denied that his deceased father had executed sale agreement in favour of plaintiffs dated 7.6.1986 and had received consideration amount of Rs.75,000/- and D.W.1 further denied that his father had executed GPA and affidavit cum agreement of sale dated 7.6.1986 for having received entire sale consideration amount and also D.W.1 specifically denied that his father had conferred the possession of schedule property to plaintiffs as they were tenants earlier to the execution of sale agreement and D.W.1 denied that possession of the plaintiffs from 7.6.1986 is not that of tenant and it is under part performance of agreement of sale . D.W.1 also denied that his father was informing the plaintiffs of execution of sale deed after transfer of katha in his name and D.W.1 further denied that plaintiffs approached him after the death of his father and sought execution of sale deed, for which, he postponed the execution and D.W.1 denied that by creating documents, he has filed HRC cases against plaintiffs and D.W.1 denied the suggestion that he has not preferred HRRP before Hon'ble High Court of Karnataka against judgment in HRC cases. D.W.1 admits regarding issuance of legal notice by the plaintiffs dated 26.8.2005 and D.W.1 further admits that he is having custody of other 39 OS. No.1497/2006 documents, on which there is signature of his late father and D.W.1 admits that in Ex.D.3, there is no signature of his late father and original document of Ex.D.9 is produced in HRC No.409/2004 to 412/2004 and D.W.1 stated that he cannot produce the original of Ex.D.9 in this suit as the original is produced in the HRC proceedings and now original documents are sent to Hon'ble High Court in HRRP proceedings and D.W.1 denied that he has not produced original documents in respect of Ex.D.9 as there was no lease agreement existed between his father and plaintiff No.1 and D.W.1 denied that documents Ex.D.10 and D.11 are created documents for the purpose of defending the suit and D.W.1 denied the suggestion that though he was knowing about Ex.P.1 and P.2, but he is deposing falsely in this suit and D.W.1 also denied that he has instituted eviction proceedings against plaintiffs in order to avoid the execution of sale deed and filed false HRC cases against them and D.W.1 denied specifically the suggestion made to him that plaintiffs are ready and willing to obtain sale deed from his late father and after his death, they are requested to him to execute sale deed.
15. After appreciation of the oral and documentary evidence placed on record, wherein plaintiffs have not 40 OS. No.1497/2006 produced any iota of evidence to show that plaintiffs father was tenant under defendant's father in the year 1984 on monthly rent of Rs.135/- and on perusal of the documents Ex.D.1 to D.3, wherein the contention of defendant taken in this suit that his father and his mother had purchased the property under registered sale deed dated 8.3.1963 and Ex.D.1 is the original sale deed dated 22.1.1962 executed by Mr. Ameer Just and necessary @ Sattar Khan. The plaintiffs documents marked through P.W.1 are Ex.P.1 is the unregistered GPA dated 7.6.1986 and Ex.P.2 is the affidavit cum agreement of sale dated 7.6.1986 and these two documents are notarized as these two documents were executed before Notary namely S.C.Chandrashekar and Ex.P.3 is the panchayath Parikath unregistered document dated 10.5.1998 and on perusal of Ex.P.1 and P.2, wherein the father's name Sri. H.V.Chandrashekara Urala is shown as "son of Narayana Pillai", but in the evidence, it appeared that correct name of father of Sri. H.V.Chandrashekara Urala is one Vasudev. The document Ex.P.1 is unregistered GPA, wherein plaintiffs are claiming right, title and interest in the immovable property and this document is apparently executed on insufficient stamp papers of Rs.25/- only and defendant/D.W.1 has specifically denied the execution of 41 OS. No.1497/2006 Ex.P.1 and P.2 by his late father Sri. H.V.Chandrashekara Urala in favour of plaintiffs father and plaintiffs 1 and 6 have examined and plaintiffs have not examined the Notary Public before whom Ex.P.1 and P.2 are came to be executed and also plaintiffs have not examined the attesting witness by name Anjinappa in order to prove the documents Ex.P.1 and P.2 and even plaintiffs have not produced any death extract of attesting witness Anjinappa, who has signed Ex.P.1 as attesting witness before this court. On the contrary, the father of the defendant was not exclusive owner of the entire schedule property consisting of Sy.No.7/2 measuring 68/90 ft., and on the contrary, defendant's mother Rukminiyamma was the owner of portion of property purchased by her under sale deed dated 8.3.1963 and plaintiffs have utterly failed to prove their possession in respect of the schedule property under part performance of contract as Ex.P.1 and P.2 are inadmissible piece of evidence for want of registration under the provision of Sec. 17 read with Sec.49 of Registration Act and on the contrary, it appears from the documents Ex.D.9 to D.11, wherein plaintiff No.1 had executed lease agreement as per Ex.D.9 on 14.7.1984 in favour of defendant's father, wherein plaintiff No.1 had executed this lease agreement on 42 OS. No.1497/2006 14.7.1989 agreeing to pay rent of Rs.170/- per month and this agreement of lease is Ex.D.9 was for 11 months came to be in force from 15.7.1984 and Ex.D.9 further shows that plaintiff No.1 had paid advance amount of Rs.1,000/- was agreed under this lease agreement and plaintiff N.1 had paid part amount of Rs.400/- to the defendant's father on 14.7.1984 and remaining amount of Rs.600/- was agreed to be paid on 10.10.1984 and to obtain receipt from the defendant's father and as per Ex.D.9, the property leased in favour of plaintiff No.1 in respect of Sy.No.7/2, Gokul Extension, Santhosh bar road, property No.3 consisting of hall, varandha, kitchen, room consisting of ACC shed and Ex.D.10 and D.11 are the rent receipts executed by 2nd plaintiff in favour of father of defendant in respect of payment of increased rent of Rs.50/- dated 1.5.1994 and Ex.D.11 is the certified copy of rent receipt executed by 2nd plaintiff to the father of the defendant regarding payment of increased rent of Rs.20/- dated 10.8.1986 and it is admitted by plaintiffs that they have filed caveat petition against defendant herein and in that caveat petition, they have not disclosed about the existence of GPA and affidavit cum agreement of sale dated 7.6.1986. Hence, on appreciation of the evidence placed by the plaintiffs, wherein 43 OS. No.1497/2006 plaintiffs have not produced any iota of evidence to show that their father M.Subramani was tenant under defendant's father in the year 1984 on rental amount of Rs.135/- per month and on the contrary, defendant's father Sri. H.V.Chandrashekara Urala was owner of the portion of property purchased by him under sale deed dated 8.3.1963 and as such, the father of defendant Sri. H.V.Chandrashekara Urala did not have any authority to enter into agreement or to execute any alleged GPA as per Ex.P.1and P.2 in favour of plaintiffs deceased father M.Subramani on the alleged date dated 7.6.1986 and it is seen from the documents Ex.P.7 and P.8, wherein the HRC proceedings initiated by the defendant against plaintiffs are disposed off by the court of Small Causes directing the parties to approach the competent civil court for declaration of their rights as provided under Sec. 43(2) of KRC Act and also there is observation by the Court of Small Causes that the parties are already fighting in O.S. No.1497/2006 before City Civil Court. Hence, the Small Causes Court closed the HRC proceedings filed for eviction by referring the parties to approach City Civil Court to decide the question of their respective contention under Sec. 43 of KRC Act. On perusal of the documents produced by the defendant, wherein the 44 OS. No.1497/2006 properties covered under two sale deeds as per Ex.D.2 and D.3, wherein they are consisting of site No.1 and 8, wherein site No.8 is exclusively belongs to defendant's father and site No.1 is purchased by plaintiffs mother Rukminiyamma under sale deed dated 8.6.1963 and these two properties are adjacent to each other, wherein plaintiff No.1 o 3 have been inducted as tenants under defendant's father and as such, the contention of plaintiffs is without any cogent documentary evidence or oral evidence to show that plaintiffs father late M.Subramani was tenant under defendant's father since 1984 and plaintiffs have utterly failed to prove the execution of Ex.P.1 and P.2 by defendant's father in respect of suit schedule property. On the contrary, the contention of the defendant appears to be probable , wherein the defendant's father and mother, who are absolute owners of schedule property under Ex.D.2 and D.3 and they have bequeathed the said property in favour of defendant under alleged "Will" dated 25.3.1992 and D.W.1 has relied upon the certified copy of the "Will" marked as per Ex.D.6 and D.7. Hence, the plaintiff No.1 and 6 are examined in this case and they have not examined the alleged attesting witness Anjinappa and the Notary Public, who has attested and notarized Ex.P.1 and P.2 namely Sri. 45 OS. No.1497/2006 S.B.Chandrashekar, advocate in order to prove Ex.P.1 and P.2. On the contrary, it is proved on record that defendant's father Sri. H.V.Chandrashekara Urala, who is no exclusive authority to execute this GPA nor affidavit as he was not the absolute owner of the schedule property and this Panchayath Parikath Ex.P.3 dated 10.5.1988 is unregistered document , it is not binding upon the defendant and plaintiffs have filed this suit before this court after defendant filed HRC cases against them and plaint was presented by the plaintiffs on 20.2.2006 much after lapse of more than 20 years of alleged GPA and affidavit cum agreement of sale dated 7.6.1986 and apparently Ex.P.1 and P.2 are unregistered documents and Ex.P.1 is insufficiently stamped and plaintiffs have not examined attesting witness whereas P.W.2 has attested Ex.P.1, who is son of deceased M.Subramani and hence, plaintiffs have failed to prove Ex.P.1 and P.2 relied by them in this case. The plaintiffs have issued legal notice on 26.8.2005 issued against defendant as per Ex.P.4 and demanded to execute sale deed for the first time against defendant herein and whereas plaintiffs have not issued any notice in writing during life time of defendant's father calling upon him to execute sale deed. Hence, considering the aspect of readiness and 46 OS. No.1497/2006 willingness , wherein Ex.P.5 is issued in the year 2005 much after lapse of 20 years and plaintiffs have not issued any notice during life time of defendant's parents asking them to execute sale deed. Even plaintiffs have not issued the notice calling upon the defendant to execute sale deed after repeal of act called Fragmentation and Consolidation of Holding Act 1966 in the year 1991 and 1992. Hence, considering the date of issuance of Ex.p.5 in the year 2005 after defendant filed HRC proceedings, wherein the plaintiffs have filed the suit for specific performance of contract and plaintiffs have not issued any legal notice during life time of the defendant's father from 7.6.1986 to 25.12.1994 for a period of 20 years and issued Ex.P.5 on 26.8.2005 for the first time, wherein this itself shows that the plaintiffs have failed to prove their readiness and willingness as required under Sec.
16(c) of Specific Relief Act. Hence, I hold that the plaintiffs have also failed to prove Issue No.3. Hence, I answer point No.1 to 3 in negative.
16. Issue No.4: The defendant in his written statement contended that the suit filed by the plaintiff is barred by limitation and in support of this issue, the counsel for the defendant in his written arguments contended that the plaintiff No.1 to 3, who are the tenants 47 OS. No.1497/2006 under the defendant's father have filed caveat petition and they have not disclosed anything about the alleged execution of GPA and affidavit cum agreement of sale dated 7.6.1986 and plaintiffs have filed this suit seeking specific performance of contract based upon alleged GPA and affidavit alleged to have been executed by defendant's father and counsel for defendant relied upon para 20 of the written statement and contended that this suit is filed on the basis of alleged documents Ex.P.1 and P.2 after lapse of nearly 20 years and as such, the suit is barred by limitation. Though counsel for plaintiff in his arguments contended that the HRC eviction proceedings filed by the defendant against plaintiffs are dismissed directing the parties to approach Civil Court filed before Small Causes Court and father of defendant died on 25.12.1994 and HRC cases filed by the defendant are closed on 9.2.2007and also HRC No.409/2004 and 411/2004 are closed on 5.8.2008 and plaintiffs have caused legal notice Ex.P.5 to defendant on 26.8.2005 and defendant has replied the legal notice by his reply notice dated 8.9.2005 and hence as per Art.54(2) of Limitation Act , the suit filed by the plaintiffs is in time as it is filed within 3 years of limitation period as per Art.54(2) of Limitation Act and he relied upon the cause of action as 48 OS. No.1497/2006 disclosed in para No.13 of the plaint.
17. After hearing the arguments of both sides and after perusal of the cause of action para No.13 of the plaint and considering the documentary evidence placed on record and also on appreciation of the oral evidence of the parties, wherein it is admitted by P.W.1 and 2 that from 7.6.1986 till the date of filing of this caveat petition, they have not issued any notice in writing calling upon the father of the defendant nor the present defendant to execute sale deed. Admittedly, the plaintiffs have not issued legal notice in writing calling upon defendant's father to execute sale deed from 7.6.1986 till his death in the year 1994 and on the contrary, the plaintiffs have issued legal notice at Ex.P.5 on 26.8.2005 for the first time against defendant calling upon him to execute sale deed from 7.6.1986 the alleged execution of documents Ex.P.1 and P.2 appearing, but notice dated 26.8.2005, wherein the plaintiffs have issued legal notice at Ex.P.5 after lapse of 19 years showing their readiness and willingness to obtain sale deed. On the contrary, by perusal of Ex.P.1 and P.2, wherein the father's name of defendant is apparently recited wrongly and also Ex.P.2 is unregistered GPA not admissible for want of registration as it is coupled with interest in immovable property and considering the 49 OS. No.1497/2006 evidence of P.W.1 and P.W.2, wherein plaintiffs have not examined the Notary and attesting witness to prove Ex.P.1 and P.2. Hence, the documents Ex.P.1 and P.2 appears to be doubtful document relied by the plaintiffs against defendant herein. On the contrary, the suit is filed by the plaintiffs after lapse of 20 years from the alleged date of execution of Ex.P.1 and P.2 dated 7.6.1986, wherein suit is filed beyond 3 years and only against the son of deceased Sri. H.V.Chandrashekara Urala and plaintiffs have not impleaded the other LRs of deceased Sri. H.V.Chandrashekara Urala wherein Sri. H.V.Chandrashekara Urala had left wife and his daughters, but suit is not filed against all the LRs of deceased Sri. H.V.Chandrashekara Urala had got 5 children including the defendant. Hence, on that count also suit suffers from non joinder of necessary parties. Hence, the suit filed by the plaintiffs is clearly barred by limitation as it is filed after lapse of 20 years from the date of alleged date of agreement Ex.P.1 and P.2. Accordingly, I hold that Issue No.4 is proved by the defendant. Accordingly, Issue No.4 is answered in affirmative.
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18. Issue No.5 and 6: The plaintiffs have sought for the relief of specific performance of contract based upon Ex.P.1 and P.2 and also prayed for consequential relief of injunction against the defendant. But plaintiffs have failed to establish and prove their case as pleaded in this case and on the contrary, this court while discussing Issue No.1 to 3, by recording negative finding on Issue No.1 to 3 against plaintiffs and on the contrary, Ex.P.1 and P.2 appears to be doubtful and created document relied upon by the plaintiffs and Ex.P.1 and P.2 are not seen the light of the day till they were produced in this suit only and plaintiffs have not filed any suit nor issued any notice against defendant's father during his life time in order to seek enforcement of the document Ex.P.1 and P.2 and as such, Ex.P.1 and P.2 appears to be created document relied by the plaintiffs in this case and even there is no independent evidence to prove that plaintiffs father had paid a sum of Rs.75,000/- at a stretch in lump sum to the father of the defendant. Hence, plaintiffs have approached this court after lapse of nearly 20 years and after disposal of HRC cases and hence, the plaintiffs have not approached the court with clean hands and as such, plaintiffs are not entitled for any relief of specific performance of contract and also not entitled for 51 OS. No.1497/2006 any consequential relief of permanent injunction. On the contrary, it is proved fact on record that plaintiffs No.1 to 3 are the tenants occupying the premises belongs to defendant and other LRs of deceased Sri. H.V.Chandrashekara Urala and as per the evidence on record that after closure of HRC proceedings filed in HRC Nos.409/2004 to 412/2004, the defendant had preferred HRRP, which are pending before the Hon'ble High Court and as such, the defendant has initiated eviction proceedings to seek possession and for recovery of rent and as such, there is no apprehension for the plaintiffs and interference or dispossession from the schedule property. On the contrary, defendant had filed proceedings for eviction and resorted to file eviction petition to seek possession from the plaintiffs and as such, the plaintiffs are not entitled for the relief of permanent injunction and also main relief of specific performance of contract. Accordingly, Issue No.5 and 6 are answered in negative against plaintiffs.
19. Issue No.7: In view of my detailed findings on Issue No.1 to 6. wherein the plaintiffs have failed to prove their case as pleaded in this case against the defendant herein and as such, the suit filed by the plaintiff deserves to be dismissed. However, in the facts and circumstances of 52 OS. No.1497/2006 the case, there is no order as to costs and with these observations, I proceed to pass the following:-
OR D E R The suit filed by the plaintiffs is dismissed. However, there is no order as to costs.
Draw decree accordingly.
{Dictated to the Judgment writer , transcribed by her, corrected and then pronounced by me in open court this 16th day of February, 2015.} (S.V.KULKARNI) XI ADDL.CITY CIVIL JUDGE BANGALORE CITY.
ANNEXUERE List of witnesses examined for plaintiff:-
P.W.1 Sri. Gandipan
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P.W.2 Sri. A.S.Vijayakumar
List of documents exhibited for plaintiff:-
Ex.P.1 GPA dated 7.6.1986 (Unregistered document) drawn on stamp paper of Rs.25/- dated 7.6.1986 Ex.P.2 Panchayath Parikath held between late M.Subramani and his sons plaintiffs 1 to 6 herein dated 10.5.1988 Ex.P.3 Receipt standing in the name of one Chikkamuthaiah Ex.P.4 Demand bill issued by BESCOM in respect of electrical installations bearing RRNo.LG 26652 Ex.P.5 Office copy of legal notice dated 26.8.2005, Ex.P.5(a) postal receipt Ex.P.5(b) Postal acknowledgment for having served the legal notice on defendant on 29.8.2005 Ex.P.5© UPC certificate dated 26.8.2005 Ex.P.6 Reply notice dated 8.9.2005, Ex.P.7 Certified copy of judgment in HRC No.410/2004 Ex.P.8 Certified copy of judgment in HRC No.409 and 411 of 2004.54
OS. No.1497/2006 List of witnesses examined for defendant:
DW.1 Sri. H.C.Sathyanarayan Urala List of documents exhibited for Defendant:-
Ex.D.1 Sale deed dated 22.1.1962,
Ex.D.2 Sale deed dated 8.3.1963,
Ex.D.3 Sale deed dated 8.3.1963,
Ex.D.4 & D.5 Notices issued by BBMP to parents of
D.W.1,
Ex.D.6 & D.7 Certified copies of Will deed dated
25.3.1992,
Ex.D.8 Certified copy of caveat petition,
Ex.D.9 Certified copy of sale deed
Ex.D.10 & D.11 Two rent receipts
XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
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