Bangalore District Court
Sri.C.Honnaiah vs Smt. Mamatha Kantharaj on 18 December, 2020
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
(CCH-67)
DATED: This the 18 th day of December, 2020
PRESENT
Smt.K.KATHYAYANI, B.Com., L.L.M.,
LXVI Addl.City Civil & Sessions Judge,
Bengaluru.
O.S.No.8855/2004
PLAINTIFF: Sri.C.Honnaiah,
S/o Late Chikkaiah,
Aged about 51 years,
R/at No.86, 7th Cross,
Sunkadakatte, Viswaneedam Post,
Bengaluru 560 091.
( By Sri.Shankarnarayana Bhat.N., Adv. )
- VERSUS-
DEFENDANT: Smt. Mamatha Kantharaj,
W/o Dr.K.Kantharaj, Major,
No.3015, 'B' Block, M.N.Colony,
Davanagere, Davanagere District.
(By Sri.N.Y.R, Advocate.)
Date of institution of the suit: 01.12.2004
Nature of the suit (suit on Declaration and Injunction
pronote, suit for declaration
and possession suit for
injunction, etc) :
Date of the commencement of 03.10.2009
recording of the evidence:
Date on which the Judgment 18.12.2020
was pronounced:
Total duration Year/s Month/s Day/s
16 00 17
2 O.S.No: 8855/2004
JUDGMENT
Initially, the plaintiff has filed this suit against the defendant for the relief of permanent injunction, later got amended the plaint for the relief of declaration of title and thereafter for the relief of possession.
2. The brief facts of the plaintiff's case are that;
a) He is the absolute owner in possession and enjoyment of the site No.41, formed in Sy.No.16/2 of Hegganahalli Village, Yeshwanthapura Hobli, Bengaluru North Taluk (for short, "the suit property") vide the registered sale deed dated 27.10.2004 executed by one Sri.C.Hanumanthaiah who obtained the same from his grandfather Sri.Chikkathimmaiah vide registered WILL dated 18.07.1967.
b) The defendant is a stranger to the suit property and she has no right, title, possession or interest over the same. In spite of that, she along with her husband came near the suit property on 28.11.2004 and were making preparations to put up certain constructions.
c) On coming to know about the same, he rushed to the spot and prevented them from carrying out any further 3 O.S.No: 8855/2004 activities over the suit property with the help of his friends and relatives.
d) The defendant is a powerful woman having money and men. Hence, he being peace loving and law abiding citizen is unable to resist the defendant and her men from interfering with his peaceful possession and enjoyment of the suit property.
e) The defendant has made clear her intention that she will not allow him to enjoy the suit property and she would reduce the same into her possession.
f) The cause of action arose on 28.11.2004 when the defendant and her men obstructed his peaceful possession and enjoyment of the suit property and on all subsequent dates. Hence, prayed to decree the suit as sought for.
3. In response to the due service of summons, the defendant appeared through her counsel and filed her written statement denying para wise the plaint averments and contending that the suit is not maintainable either in law or on facts and same is liable to be dismissed.
a) The plaintiff is not a lawful owner and he has not acquired right, title and interest over the suit property by 4 O.S.No: 8855/2004 virtue of alleged sale deed dated 28.10.2004 and the same is a got up document in collusion with one Sri.Rajendran and the vendor of the plaintiff Sri.C.Hanumanthaiah.
b) The vendor of the plaintiff Sri.C.Hanumanthaiah has already conveyed the suit property in the year 1985 itself and thereafter, she has purchased the same from his successor in title by way of registered sale deed dated 13.02.1992. The plaintiff knowing fully well, without verifying the earlier transaction, has purchased the same from Sri.C.Hanumanthaiah to defeat and defraud her claim.
c) The plaintiff is the brother of Sri.C.Hanumanthaiah who had already conveyed the suit property in favour of one Sri.K.Ranga and the said Sri.K.Ranga in turn has conveyed his title in favour of Sri.Rajendran who on the strength of General Power of Attorney has sold the same in her favour by executing the registered sale deed dated 13.02.1992 and from the date of purchase, she is in peaceful possession and enjoyment of the suit property.
d) The plaintiff has suppressed all these material and real facts before this Court and he has not approached the 5 O.S.No: 8855/2004 Court with clean hands. The plaintiff ought to have verified the encumbrance prior to his purchase. Therefore, the alleged sale deed dated 28.10.2004 executed by Sri.C.Hanumanthaiah in favour of the plaintiff is void in law and the said sale deed along with revenue documents produced by the plaintiff will not confer any valid title to him.
e) She had purchased the suit property from Sri.Rajendra vide registered sale deed dated 13.02.1992 and the said property was free from all encumbrances on the date of execution of the said sale deed.
f) Sri.C.Hanumanthaiah has conveyed his right, title and interest over the suit property in favour of Sri.K.Ranga and he was not in possession and enjoyment of the same ever since 1985 and received the entire sale consideration from said Sri.K.Ranga. Therefore, the question of transferring the suit property in favour of the plaintiff is all imaginary and he cannot transfer the same. The said sale deed is concocted document and is not binding on her.
g) The said Sri.K.Ranga has executed a GPA dated 20.12.1989 in favour of Sri.R.Rajendran and also executed 6 O.S.No: 8855/2004 an affidavit dated 06.07.1970 stating that he has received the entire sale consideration from Sri.Rajendran and confirmed that he will execute the sale deed in favour of Sri.Rajendran, if the Government withdraws the ban for registration of the sale deed. On the strength of GPA., Sri.Rajendran was in possession and enjoyment of the same ever since 1989.
h) After purchase of the suit property, since her husband was being transferred in his job to different places, to acquire some other immovable properties, she has decided to sell the same and approached Sri.Rajendran for negotiation with the intending purchase of the suit property. Hence, she has handed over all the original title deeds of the suit property in favour of Sri.Rajendran for verification.
i) The said Sri.Rajendran has returned the original title deeds to her, but while returning it was found that he has not delivered the original GPA and the affidavit dated 21.06.1985 executed by Sri.C.Hanumanthaiah in favour of Sri.K.Ranga. Though she approached him several times to get the same, after persuasion by her, he told that he has 7 O.S.No: 8855/2004 lost the same and that he has lodged a police complaint regarding the same before the jurisdictional police station on 19.11.2004.
j) She being the absolute owner of the suit property, agreed to sell the same in favour of one Sri.Guddaiah by executing an agreement of sale dated 20.09.2004 and she is the bona fide purchaser and since from the date of purchase till date, she is in continues peaceful possession and enjoyment of the suit property as the absolute owner.
k) By suppressing all these material facts, the vendor of the plaintiff Sri.C.Hanumanthaiah has sold the suit property in favour of plaintiff who is none other than his direct brother, to grab the valuable property belonging to her. The sale transaction dated 27.10.2004 is null and void and a sham transaction.
l) The plaintiff is not an absolute and lawful owner of the suit property and Sri.C.Hanumanthaiah had no right, title and interest to sell the property which belongs to her. Hence, plaintiff has no manner of right, title and interest over the suit property. She apprehends that Sri.Rajendran 8 O.S.No: 8855/2004 has colluded with Sri.C.Hanumanthaiah and the plaintiff has got up the false sale deed.
m) The plaintiff has purchased the property on 27.10.2004 and the alleged transaction is not binding on her since the same was transferred to her in the year 1992 itself. Hence, the question of interference with the possession of the plaintiff is denied. When the plaintiff himself is not in possession of the suit property, the question of interference by her is imaginary.
n) There is no cause of action for the suit. Sri.C.Hanumanthaiah having encumbered the suit property in the year 1985 itself was not in possession and enjoyment of the same ever since from 1985.
o) The plaintiff has not established any prima facie case against her and the balance of convenience is also in her favour and she is in possession and enjoyment of the suit property ever since from 1992. The great hardship would be caused to her if this Court grants any order of permanent injunction.
p) The suit is bad for non joinder of necessary and proper parties. The plaintiff ought to have sought for 9 O.S.No: 8855/2004 cancellation of the sale deed dated 13.02.1992 and the suit is not maintainable as the plaintiff has not sought for the relief of declaration and possession of the suit property. Hence, prayed to dismiss the suit with exemplary costs.
4. On the above said pleadings of the parties, my learned predecessor in office has framed following issues on 30.11.2007.
1. Whether the plaintiff proves his lawful possession and enjoyment over the suit schedule property?
2. Whether the plaintiff proves the alleged interference of the defendant in enjoying the suit schedule property?
3. Whether the plaintiff is entitled for a decree of permanent injunction as prayed for?
4. What order or decree?
5. Thereafter, the plaintiff got amended his plaint by getting inserted the relief of declaration of title over the suit property.
6. The defendant has filed her additional written statement with counter claim taking the additional pleadings that the prayer sought in the amended plaint cannot be granted. The plaintiff came to know her defence on 05.02.2005, but had not sought the amendment and at 10 O.S.No: 8855/2004 the stage of her further cross examination, he has come up with the plea of amendment which is barred by limitation and the prayer sought in the amendment is not supported by the specific pleadings.
a) She became the absolute owner in possession of the suit property by virtue of the sale deed dated 13.02.1992 and thus, her sale deed is the first sale deed and accordingly, the plaintiff has no legal title, right and interest over the suit property by virtue of his alleged sale deed dated 28.10.2004 which is not binding on her.
b) The cause of action for her counter claim arose when the plaintiff presented the amended plaint and thus, her claim is within limitation. Accordingly, sought to allow her relief of counter claim declaring that she is the absolute owner in possession of the suit property and consequently, the sale deed of the plaintiff is not binding on her.
7. The plaintiff has filed his written statement to the counter claim of the defendant taking the additional pleadings that the revenue records, khatha and payment of tax is not the recognition of the right over the suit property. 11 O.S.No: 8855/2004 The so called vendor of the defendant had no title to transfer in favour of the defendant in respect of the suit property. He has acquired the suit property from the admitted original owner Sri.C.Hanumathaiah and thus, he has valid title over the same.
a) The defendant has not properly valued her counter claim and the Court fee paid on the counter claim is not correct. There is no cause of action for her counter claim. Hence, prayed to dismiss the counter claim sought by the defendant.
8. On the above noted additional pleadings of the parties, my learned predecessor in office has framed the following additional issues on 05.11.2013.
1. Whether plaintiff proves that he is the absolute owner of the suit schedule property?
2. Whether defendant proves that she is the absolute owner in possession of the suit property?
3. Whether defendant proves that the sale deed dated 27.10.2004 is null, void and not binding on her?
4. Whether defendant is entitled to relief of declaration and relief of permanent injunction against the plaintiff?
12 O.S.No: 8855/2004
5. Whether the properly valued the reliefs and payment of Court fee is correct?
9. Later, the plaintiff again got amended his plaint by getting inserted para No.4 to the plaint with the additional pleadings that the defendant never derived any right, title to the suit property as her claim is based on created and concocted papers and furthermore, her vendor was not the owner or title holder of the suit property. It appears that the defendant fraudulently concocted the papers by forging the signatures of Sri.C.Hanumanthaiah with ulterior motive of knocking the suit property.
a) He is a handicapped person and the defendant who is very powerful both in money and men, with the help of her men and husband has forcibly dispossessed him from the suit property during the last week of December-2013 and reduced the suit property to her possession. He being weak and handicapped person was not able to retain his possession over the suit property.
b) He went to the police to lodge the complaint against defendant, but they refused to receive the compliant on the excuse of pendency of civil suit and also 13 O.S.No: 8855/2004 on the excuse that there is already a criminal case pending on the complaint of the defendant. Thus, he became helpless and could not retain the possession of the suit property and consequently, sought the relief of possession.
10. The defendant has filed the additional written statement wherein she has taken the same defence as she has taken in her additional written statement dated 20.08.2013 observed above.
11. Based on the above additional pleadings of the parties, my learned predecessor has framed the following additional issues on 03.03.2016.
1. Whether the plaintiff proves his right and title over the suit schedule property?
2. Whether the plaintiff is entitled for the possession of the suit schedule property?
12. To prove the above said issues and to substantiate their respective cases, plaintiff himself has entered into the witness box as PW-1. Got exhibited 20 documents as Ex.P-1 to P-19 and 13A and closed his side. 14 O.S.No: 8855/2004
13. In support of her defence, the defendant herself has stepped into the witness box as DW-1. Got exhibited 41 documents as Ex.D-1 to D-41 and closed her side.
14. Heard both the sides on merits of the case and perused the record.
15. At this stage, it is found that it is the defence of the defendant in her written statement with counter claim that relief of declaration of his title over the suit property sought by the plaintiff by way of amendment is hit by limitation and it is the defence of the plaintiff in his written statement to the counter claim that there is no cause of action to the counter claim of the defendant and no issues are framed in that regard. Hence, the following additional issues are framed on 10.03.2020.
1. Whether the defendant proves that the relief of declaration of his title over the suit property sought by the plaintiff is hit by limitation?
2. Whether the plaintiff proves that there is no cause of action to the counter claim sought by the defendant?
16. At this stage, it is found that though the defendant has sought only the relief of declaration, in the 15 O.S.No: 8855/2004 additional issue No.4 dated 05.11.2013, the relief of injunction is also added due to over sight and in the additional issue No.5, the burden of proving the said issue on the defendant is left out. Hence, those issues are corrected/amended accordingly, as they follow.
4. Whether the defendant is entitled to relief of declaration and relief of permanent injunction against the plaintiff? (highlated in bold is deleted)
5. Whether the defendant proves that the plaintiff has not properly valued the reliefs and payment of Court fee is not correct? (highlated in bold is inserted)
17. In the meanwhile, it is also found that no issue is framed with regard to the defence of the plaintiff that the defendant has not valued her counter calim and paid the necessary Court fee. Hence, this Court has framed the following additional issue in that regard on 17.03.2020.
1. Whether the plaintiff proves that the Court fee paid by the defendant on her counter claim is not proper?
18. An opportunity was given to both the parties to lead their additional evidence if any on the above additional issues. But, the plaintiff did not let in any additional 16 O.S.No: 8855/2004 evidence. Hence, it was taken as nil. The counsel for the defendant has submitted that the defendant has no additional evidence to lead.
19. Heard both the sides on the above stated additional issues. In addition, the counsel for the plaintiff has filed his written arguments as well. Perused the record.
20. The findings of this Court on the above issues and additional issues are answered in the;
Issues dated 30.11.2007
1. Issues Nos.1 to 3: Became Infractuous. Additional Issues dated 05.11.2013
1. Addl.Issues Nos.1 & 5 : Affirmative
2. Addl.Issues Nos.2 to 4 : Negative. Additional Issues dated 03.03.2016
1. Addl.Issues Nos.1 & 2 : Affirmative. Additional Issues dated 10.03.2020
1. Addl.Issues Nos.1 & 1 : Affirmative. Additional Issue dated 17.03.2020
1. Addl.Issue No.1 : Negative.
Issues dated 30.11.2007
1. Issue No.4 : As per the final order for the following reasons.
17 O.S.No: 8855/2004REASONS
21. ISSUES Nos.1 TO 3 DATED 30.11.2007:- In view of amendments brought by the plaintiff to his suit seeking relief of declaration of his right over the suit property and the possession thereof, these issues became infractuous. Accordingly, they are answered.
22. ADDITIONAL ISSUES Nos.1 TO 3 DATED 05.11.2013 AND ADDITIONAL ISSUE No.1 DATED 03.03.2016:- As these issues require common discussions, to avoid repetitions and for the sake of convenience, they are taken together for consideration.
23. The above noted pleadings of the parties clearly demonstrate that there is no dispute between the parties with regard to the fact that Sri.C.Hanumanthaiah was the original owner of the suit property and the plaintiff is his younger brother.
24. It is the case of the plaintiff that he is the absolute owner in possession of the suit property by virtue of the registered sale deed dated 27.10.2004 and had been in possession and enjoyment of the same. The defendant 18 O.S.No: 8855/2004 who is an utter stranger to the suit property forcibly dispossessed him from the suit property in the last week of December-2013 and he who is a handicapped person could not resist the defendant and was not able to retain his possession over the suit property.
25. On the other hand, it is the case of the defendant that she is the absolute owner in possession of the suit property by virtue of the registered sale deed dated 18.02.1992 and has been in peaceful possession and enjoyment of the same since from the date of purchase.
26. To prove their respective cases, as noted above, the plaintiff himself has entered into the witness box as PW-1 and filed his chief affidavit evidence reiterating his plaint averments and on the other hand, to prove her defence, the defendant herself has stepped into the witness box as DW-1 and filed her chief affidavit evidence reiterating her defence. Both of them did not get examined any other witnesses in support of their respective cases.
27. In his cross examination, though the plaintiff has pleaded his ignorance by saying that he does not know that during 1985, revenue sites were not registered, he has 19 O.S.No: 8855/2004 admitted the suggestion that after the land came within the fold of the CMC., Dasarahalli, registration of sale deeds were made.
28. So, as it is in the cross examination of the plaintiff that the land in Sy.No.16/2 over which admittedly the suit site is formed was not converted and all the sites formed over it were revenue sites, it can be safely concluded that registration of those sites were made after the land came within the fold of CMC., Dasarahalli.
29. He has deposed that it may be true that after forming sites GPA was executed in favour of the different persons and he does not know that after execution of GPA and agreements, khata was changed in the name of agreement holders.
30. He has also deposed that before purchase of the suit property, its khatha was standing in the name of Sri.C.Hanumanthaiah and in 2004, he had verified in CMC., Dasarahalli as to in whose name khatha was standing. He has also deposed that he does not know that prior to his purchase, in CMC., Dasarahalli, Khatha was standing in the name of the defendant. It is important to 20 O.S.No: 8855/2004 note that he has not denied the suggestion, but has pleaded his ignorance.
31. He has also deposed that before he purchased the property, he has got verified the title deeds and obtained legal opinion. But, no such opinion or the copy thereof is produced before this Court.
32. He has admitted the suggestion that Syndicate Bank had filed suit against him for recovery of loan amount and he had given statement in that suit that he has suffered loss and not in a position to repay. But, the defendant has neither elicited the details of the above suit i.e., the period when the plaintiff suffered loss nor produced any documents of the said suit in that regard.
33. Though, the plaintiff has denied the suggestion that at the time of execution of Ex.P-10/the sale deed, he was not having money to pay the sale consideration amount, it is in his further cross examination that Rs.2,80,000/- cash was with him and he had paid that amount to his brother in installments, but he has no receipts to show those payments; he does not remember the dates of such payments and there is no mention in that 21 O.S.No: 8855/2004 regard in the sale deed at Ex.P-10. He has denied the suggestion that in 2004, when the defendant tried to sell the suit property to one Guddaiah, in collusion with his brother, the sale deed at Ex.P-10 was created.
34. He has also deposed that he does not know that the defendant has purchased the suit property in 1992 and that in 1994, khatha was changed in her name in CMC., and that since 1994, onwards, the defendant has been paying the tax. It is pertinent to note that he does not deny the above facts, but has deposed that he does not know.
35. However, he has denied the suggestion that his brother has sold the suit property to the defendant through his GPA holder and since 1992 she has been in possession of the suit property. He has specifically deposed that his brother has not executed any GPA.
36. On the other hand, it is in the cross examination of the defendant that she does not know that Sri.C.Hanumanthaiah has executed a sale deed in favour of the plaintiff in respect of the suit property. She has also not denied the above suggestion. On the other hand, deposed that she does not know.
22 O.S.No: 8855/2004
37. She has deposed that she purchased the suit property from one Sri.Rajendran. She has admitted the suggestion that no sale deed was executed by Sri.C.Hanumanthaiah in favour of Sri.Rajendran. However, denying the suggestion that Sri.C.Hanumanthaiah has not executed any document in favour of Sri.Rajendran. Though she has voluntarily deposed that GPA has been executed, again she has deposed that GPA produced by her in this case is executed by one Sri.Ranga in favour of Sri.Rajendran.
38. She has admitted the suggestion that Ex.D-3 has been executed by Sri.Rajendran stating that he is the owner of the property and to show that Sri.Rajendran is the owner of the property, there is no khatha or tax paid receipt.
39. She has deposed that Ex.D-1 was handed over to her by Sri.Rajendran at the time of registration. At the time of registration, Sri.Rajendran gave her two GPAs only i.e., the GPA executed by Sri.C.Hanumanthaiah in favour Sri.Ranga and GPA executed by Sri.Ranga in favour of Sri.Rajendran. She has denied the suggestion that Ex.D-1 23 O.S.No: 8855/2004 is a created document and Sri.C.Hanumanthaiah has not executed any GPA in favour of Sri.Ranga in respect of the suit property.
40. She has also deposed that after execution of sale deed in 1992, Ex.D-1 was in her custody and she has admitted the suggestion that the suit property is a vacant site and she does not have document to show that the property baring Khatha No.62 and House List No.41 belonged to her vendor. She has also deposed that while purchasing the property as per Ex.D-3, she has verified only GPAs, but not any other documents.
41. In her further cross examination, she has admitted the suggestion that the suit property originally belonged to Sri.C.Hanumanthaiah and he has not executed any document directly in her favour and she has not seen the said Sri.C.Hanumanthaiah executing GPA in favour of Sri.Ranga and also GPA executed by the said Sri.Ranga in favour of Sri.Rajendran.
42. She has also admitted the suggestion that when the sale deed was executed in her favour, except the GPA executed in favour of Sri.Ranga and GPA executed in 24 O.S.No: 8855/2004 favour of Sri.Rajendran, there were no other documents standing in the name of Sri.Rajendran.
43. If the documents produced by the parties are taken note off, the plaintiff has produced the documents at;
a) Ex.P-1 is the RTC of Sy.No.16/2 of Hegganahalli Village measuring 3 acres 25 guntas for the year 2003-04 which is in the name of Smt.Gangalakshmamma and Sri.C.Hanumanthaiah.
b) Ex.P-2 is the certified copy of the demand register extract for the year 1990-91 issued by Saneguruvanahalli Village Panchayath in respect of property No.10-16/2-41 in the name of Sri.C.Hanumanthaia S/o Late Sri.Chikkaiah.
c) Ex.P-3 is the tax paid receipt in respect of the above property for the year 1990-91 in the name of Sri.C.Hanumanthaiah S/o Sri.Chikkaiah.
d) Ex.P-4, 12 and 5 are the copies of the tax payer/tax receipts all are dated 07.09.2004 for the year 2002-03, 2003-04 and 2004-05 respectively issued by CMC., Dasarahalli in the name of Sri.C.Hanumanthaiah S/o Late Sri.Chikkaiah in respect of property No.16/2-41. 25 O.S.No: 8855/2004
f) Ex.P-6 is the certified copy of the property tax details list for the year 2002-03 of CMC., Dasarahalli in respect of property (the details tally with the suit property) and it is in the name of Sri.C.Hanumanthaiah S/o Late Sri.Chikkaiah.
g) Ex.P-7 and 8 are the certified copies of the same documents as of Ex.P-6 for the years 2003-04 and 2004-05 respectively.
h) Ex.P-9 is the certified copy of self declared property tax for the year 2004-05 issued by CMC., Dasarahalli for the same property as shown in Ex.P-6 to 8 in the name of Sri.C.Hanumanthaiah S/o Late Sri.Chikkaiah.
44. So, Ex.P-1, 4 to 9 and 12 demonstrate that as on the date of purchase of the property by the plaintiff i.e., 27.10.2004, the revenue records of the suit property stood in the name of Sri.C.Hanumanthaiah.
45. Ex.P-10, is the original registered sale deed in the name of the plaintiff in respect of the suit property which demonstrates that Sri.C.Hanumanthaiah sold the suit 26 O.S.No: 8855/2004 property to the plaintiff for his legal necessities for Rs.2,48,000/-.
46. As observed above, it is the defence taken by the defendant in the course of the cross examination that the plaintiff has no money to pay the above sale consideration and it is in the cross examination of the plaintiff that he has paid the said amount by cash in installments. But, admittedly, there is no mention in Ex.P-10 with regard to the payment of the sale consideration in cash and in installments. It is only mentioned that the entire sale consideration of Rs.2,48,000/- was received by the vendor/Sri.C.Hanumanthaiah in the presence of the witnesses i.e., 1) Sri.Shantha Raj and 2) Smt.Jayalakshmi W/o Sri.C.Honnaiah who is admittedly, the wife of the plaintiff.
47. Except the oral testimony of the defendant and the suggestion that the plaintiff had no money to pay the above sale consideration, the defendant did not let in any supportive evidence. Though, it is elicited that in a bank suit, the plaintiff had pleaded that he had no money to repay the loan amount, as noted above, no details are 27 O.S.No: 8855/2004 elicited from the mouth of the plaintiff in that regard and no documents are also produced by the defendant with regard to the said admitted bank suit. Thus, there is no evidence with regard to the particular period when the plaintiff had no money.
48. At this stage, it is also pertinent to go through judgment of Hon'ble Supreme Court of India in Civil Appeal No.9519 of 2019 (arising out of SLP (Civil) No.11618 of 2017) in the case of Dahiben Vs Aravind Bhai Kalyanji Bhanusali (Gajrat) (D) and others decided on July 09, 2020 before his Lordship L.Nageswara Rao and her Ladyship Indu Malhotra JJ.) wherein the Hon'ble Apex Court has held that;
".....
In Vidyadhar V. Manikrao & Anr. This Court held that the words "price paid or promised or part paid and part promised" indicates that actual payment of the whole of the price at the time of the execution of the Sale Deed is not a sine qua non for completion of the sale. Even if the whole of the price is not paid , but the document is executed, and thereafter registered, the sale would be complete , and the title would pass 28 O.S.No: 8855/2004 on to the transferee under the transaction. The nonpayment of a part of the sale price would not affect the validity of the sale. Once the title in the property has already passed, even if the balance sale consideration is not paid , the sale could not be invalidated on this ground. In order to constitute a "sale", the parties must intend to transfer the ownership of the property, on the agreement to pay the price either in present, or in future. The intention is to be gathered from the recitals of the sale deed, the conduct of the parties, and the evidence on record.
....."
49. So, from the plain reading of the above observations, it is clear that the nonpayment of the sale consideration would not invalidate the sale transaction, it is only the intention of the parties to transfer the ownership is must to validate the sale. Hence, the present ground of the defendant that no sale consideration was passed under Ex.P-10 is not helpful to the defendant.
50. So far the defence that Ex.P-10 was created in collusion between the plaintiff and Sri.C.Hanumanthaiah, let this Court to see the other evidence on record a little bit later.
29 O.S.No: 8855/2004
51. The other documents produced by the plaintiff are;
a) Ex.P-11 is the endorsement dated 05.11.2004 issued by CMC., Dasarahali to the plaintiff in respect of his application seeking transfer (appears to be in respect of the suit property's khatha).
b) Ex.P-13 is the certified copy of the spot mahazar conducted in the Cr.No.20/2009 on the file of Kamakshipalya police station i.e., the case registered or the complaint of the defendant against the plaintiff for the offence under Section 420 of IPC in respect of the sale at Ex.P-10.
c) Ex.P-13A is the certified copy of the MR.No.3/1985-86 which demonstrates that by virtue of the family partition dated 16.03.1984, 2 acres 10 guntas in Sy.No.16/2 fell to the share of Sri.C.Hanumanthaiah and there is no dispute between the parties in that regard.
d) Ex.P-14 is the certified copy of Form - B Property Register Extract dated 29.01.2019 in the name of the plaintiff in respect of the suit property. 30 O.S.No: 8855/2004
e) Ex.P-15 to 19 are the tax paid receipts dated 29.01.2019, 15.05.2014, 30.05.2015, 04.08.2017 and 13.10.2017 respectively in the name of the plaintiff in respect of the suit property. Prima facie, Ex.P-14 to 19 are consequential to the sale deed at Ex.P-10.
52. If the documents produced on behalf of the defendant are taken note off, Ex.D-1 is the original GPA dated 21.06.1985 alleged to be executed by Sri.C.Hanumanthaiah in favour of Sri.K.Ranga in respect of the suit property. The plain reading of the recitals therein clearly demonstrates that it is an absolute GPA wherein all the powers including the power to transfer the suit property in favour of anybody is given.
53. It is the contention of the plaintiff that Sri.C.Hanumanthaiah had not executed any GPA in favour of Sri.K.Ranga. But, the signatures of the executant at Ex.D-1 are similar to the signatures of the executant of Ex.P-10 i.e., the sale deed executed by Sri.C.Hanumanthaiah in favour of the plaintiff in respect of the suit property.
31 O.S.No: 8855/2004
54. At this stage, it is also pertinent to note that to establish that Sri.C.Hanumanthaiah had sold some of the sites formed in Sy.No.16/2 through the GPA as then the revenue sites were not being registered, the defendant has produced the certified copies of plaints in OS.No.6287/1998, OS.No.2452/2005 with verifying affidavit, OS.No.4525/2005 with verifying affidavit, OS.No.6931/2006 with verifying affidavit filed by Sri.C.Hanumanthaiah respectively at Ex.D-10, 11, 13 and
16.
55. The signatures of Sri.C.Hanumanthaiah at Ex.D- 10, 11, 13 and 16 are very much similar to his signatures at Ex.P-10 and Ex.D-1. Ex.D-19 is the certified copy of the sale deed at Ex.P-10.
56. The plaintiff has also contended that the signature of the alleged Notary at Ex.D-1 is not the signature of the said Notary Smt.R.Lalithamma. But, to substantiate the same, expect the suggestions in that regard to the defendant which are in turn denied by her, the plaintiff let in nothing.
32 O.S.No: 8855/2004
57. In support of the defence that Sri.C.Hanumanthaiah has executed the GPA at Ex.D-1, the counsel for the defendant in the course of arguments, has drawn the attention of this Court to the pleadings of the 1 st defendant in OS.No.6931/2006 at Ex.D-17 at para No.8 which reads;
".....
8. It is submitted that the plaintiff in the above case has executed a GPA in respect of the suit schedule property in favour of Smt.Thayamma and her son Chikkanna and also the plaintiff has also executed an affidavit by receiving entire sale consideration in respect of the suit schedule property and the GPA dated 24.10.1985 executed by the plaintiff in favour of one Smt.Thayamma and Chikkanna was coupled with interest he has also delivered the vacant possession of the suit schedule property in favour of his attorney holder on 24.10.1985 itself. The copies of the GPA, affidavit are produced herewith as document No.1 and 2.
...."
55. Relying on the above pleadings, it is the arguments of the counsel for the defendant that in the present case on hand also the facts are similar and the 33 O.S.No: 8855/2004 GPA at Ex.D-1 in favour of Sri.Ranga was also executed in the year 1985. Hence, this Court can take judicial notice with regard to the conduct of Sri.C.Hanumanthaiah that he has sold the sites, handed over the possession, received the entire sale consideration, executed the affidavit and the GPA in favour of the prospective purchasers as the revenue sites were not being registered by that time.
56. The plaint averments in the above suit at Ex.D-16 demonstrate that the suit property involved in that suit is site No.42. The facts i.e. execution of GPA, handing over of the possession in favour of Sri.Ranga are supported by Ex.D-1 and it is dated 21.06.1985. As noted above, plaintiff has admitted the suggestion that the sites were registered after the land came into the fold of CMC., Dasarahalli. Hence, the probability of the facts in the arguments of the defendant cannot be thrown out rightly. Thus, prima facie, these contentions of the plaintiff with regard to Ex.D-1 i.e., Ex.D-1 was not executed by Sri.C.Hanumanthaiah and it is a created document have to fail.
57. Ex.D-9 is the original GPA dated 20.12.1989 executed by Sri.K.Ranga in favour Sri.R.Rajendran in 34 O.S.No: 8855/2004 respect of the suit property wherein it is stated that the property/the suit property came to his possession by virtue of the GPA dated 21.06.1985/Ex.D-1 and he has handed over the possession thereof on the same day to Sri.Rajendran for the management of the property. However, the terms stated therein prima facie reveal that it is the absolute GPA giving all the powers including the power to transfer the property in favour of anybody.
58. Ex.D-2 is the original affidavit sworn by Sri.K.Ranga wherein it is stated that the property/the suit property came to his possession by virtue of the GPA dated 21.06.1985/Ex.D-1 and he sold the said property to Sri.Rajendran for Rs.54,250/- and has received the entire consideration amount in the presence of the witnesses therein and handed over the possession thereof.
a) Since, there was no registration of revenue sites, he has executed the GPA and he will not cancel the same for whatever reasons and after the government permitting for registration, he will execute the necessary sale deed.
59. But, as noted above, there is no mention in the GPA at Ex.D-9 with regard to the alleged sale mentioned in 35 O.S.No: 8855/2004 Ex.D-2 and there is no mention in Ex.D-2 that Sri.Ranga has sold the suit property to Sri.Rajendran as the GPA holder of Sri.C.Hanumanthaiah, it is only stated that he got the possession of the suit property vide the GPA executed by Sri.C.Hanumanthaiah at Ex.D-1.
60. Of course, it is the case of the defendant that on receiving the entire sale consideration from Sri.K.Ranga, Sri.C.Hanumanthaiah had executed the GPA in his favour as per Ex.D-1 and thus, it is her case that Sri.K.Ranga purchased the suit property from Sri.C.Hanumanthaiah, but there is no recitals supporting the above defence in any of the documents at Ex.D-1, D-2 and D-9.
61. Ex.D-3 is the original registered sale deed dated 13.02.1992 executed by Sri.Rajendran in favour of the defendant in respect of the suit property wherein it is stated that the property/the suit property came into his possession by virtue of the GPA dated 06.01.1990 executed by Sri.K.Ranga in his favour and he has sold the same for his legal necessity for a sum of Rs.40,000/- which was received by him in the presence of the witnesses thereto. It 36 O.S.No: 8855/2004 is not stated that he has sold the property as the GPA of Sri.K.Ranga.
62. So, from the conjoint reading of Ex.D-1 to 3 and 9, it can be safely concluded that the sum and substance of those documents is that;
a) Sri.C.Hanumanthaiah has executed the GPA at Ex.D-1 in favour of Sri.K.Ranga in respect of the suit property.
b) Sri.K.Ranga executed the GPA at Ex.D-9 in favour of Sri.Rajendran and handed over the possession thereof and also sworn to the affidavit at Ex.D-2 saying that he has sold the suit property to Sri.Rajendran for Rs.54,250/- and handed over the possession thereof.
c) Sri.Rajendran sold the suit property to the defendant vide the registered sale deed at Ex.D-3 for Rs.40,000/-.
63. So, it is clear that as per the recitals at Ex.D-1 to 3 and 9 in particular Ex.D-2, 3 and 9, there is no legal flow of title from Sri.K.Ranga to Sri.Rajendran and from Sri.Rajendran to the defendant.
37 O.S.No: 8855/2004
64. At this stage, it is pertinent go through the judgment of the Hon'ble Apex Court in Special Leave Petition (C) No.13917 of 2009 (between Suraj Lamp and Industries Pvt. Ltd. Vs. State of Hayrna & Anr. decided on October 11, 2011 before their Lordships R.V.Raveendran, A.K.Patnaik and H.L.Gokhale JJ.) wherein the Hon'ble Apex Court has held that;
"By an earlier order dated 15.05.2009 (reported in Suraj Lam & Industries Pvt. Ltd. vs. State of Haryana & Anr. - 2009 (7) SCC 363, we had referred to the ill-effects of what is known as General Power of Attorney Sales (for short 'GPA Sales') or Sale Agreement/General Power of Attorney/Will transfers (for short, 'SA/GPA/WILL' transfers). Both the descriptions are misnomers as there cannot be a sale by execution of a power of attorney nor can there be a transfer by execution of an agreement of sale and a power of attorney and will. As noticed in the earlier order, these kinds of transactions are evolved to avoid prohibitions/conditions regarding certain transfers, to avoid payment of stamp duty and registration charges on deeds of conveyance to avoid payment of capital gains on transfers, to invest unaccounted money ('black money') and to avoid payment of 'unearned increases' due 38 O.S.No: 8855/2004 to Development Authorities on transfer.
2. The modus operandi in such SA/GPA/WILL transactions is for the vendor or person claiming to be the owner to receive the agreed consideration, deliver possession of the property to the purchaser and execute the following documents or variations thereof:
(a) An Agreement of sale by the vendor in favour of the purchaser confirming the terms of sale, delivery of possession and payment of full consideration and undertaking to execute any document as and when required in future.
(b) An Irrevocable General Power of Attorney by the vendor in favour of the purchaser or his nominee authorizing him to manage, deal with the dispose of the property without reference to the vendor.
Or A General Power of Attorney by the vendor in favour of the purchaser or his nominee authorizing the attorney holder to sell or transfer the property and a Special Power of Attorney to manage the property.
(c) A will bequeathing the property to the purchaser (as a safeguard against the consequences of death of the vendor before transfer is effected).
.....
11. Section 54 of TP Act ....
39 O.S.No: 8855/2004.....
It is thus clear that a transfer of immoveable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immoveable property can be transferred.
12. Any contract of sale (agreement of sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53A of TPA Act.). According to TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance.
Section 54 of TP Act enacts that sale of immoveable property can be made only by a registered instruments and an agreement of sale does not create any interest or charge on its subject matter.
Scope of Power of Attorney.
13. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf the grantor, which when executed 40 O.S.No: 8855/2004 will be binding on the grantor as if done by him (see Section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. ...
......
An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.
.....
Conclusion.
15. Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M.Jain v. Canara Bank - 94 (2001) DLT 841, that the "concept of power of attorney sales have been recognized as a mode of transaction " when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transaction are some kind of a recognized or accepted mode of transfer and that it can be valid substitute for a sale deed. Such decision to the extent they recognize or accept SA/GPA/WILL 41 O.S.No: 8855/2004 transactions are concluded transfer, as contrasted from an agreement to transfer, are not good law.
16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance.
Transaction of nature of 'GPA sales' or "SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The Courts will not treat such transactions completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property.
They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act.
Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records . What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to the transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to pernicious practice of SA/GPA/WILL transactions known as GPA sales.
17. It has been submitted that making declaration that GPA sales and SA/GPA/WILL transfers are not 42 O.S.No: 8855/2004 legally valid modes of transfer is likely to create hardship to a large number of persons who have entered into such transactions and they should be given sufficient time to regularize the transactions by obtaining deeds of conveyance. It is also submitted that this decisions should be made applicable prospective to avoid hardship.
18. We have merely drawn attention to and reiterated the well-
settled legal position that SA/GAP/WILL transactions are not 'transfers' or 'sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreements of sale.
Nothing prevents affected parties from getting registered Deeds of Conveyance to complete therein title. The said 'SA/GPA/WILL transactions' may also be caused to obtain specific performance or to defend possession under Section 53A of TP Act. If they are entered before this day, they may relied upon to apply for regularization of allotments/leases by Development Authorities. We make clear that if the documents relating to 'SA/GPA/WILL transactions' has been accepted acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation, they need not be 43 O.S.No: 8855/2004 disturbed, merely on account of this decision.
....."
65. So, in view of the principles rendered in the above decision, the GPA and the affidavit at Ex.D-9 and D-2 respectively executed by Sri.K.Ranga in favour of Sri.Rajendran cannot transfer any right in favour Sri.Rajendran in respect of the suit property.
66. Even in view of the principles rendered in the above decision Sri.K.Ranga being the GPA holder of Sri.C.Hanumanthaiah under Ex.D-1 could sell the suit property to anybody including Sri.Rajendran, it is/was on behalf of Sri.C.Hanumanthaiah and not in his individual capacity.
67. As noted above, there is no such mention in the affidavit that he has sold the property to Sri.Rajendran on behalf of the owner i.e. Sri.C.Hanumanthaiah as the GPA holder.
68. On the other hand, it is stated in the affidavit at Ex.D-2 he obtained the possession by virtue of the GPA executed by Sri.C.Hanumanthaiah at Ex.D-1 and sold the 44 O.S.No: 8855/2004 same to Sri.Rajendran for Rs.54,250/- and as there was no registration of revenue sites, he has executed the GPA at Ex.D-9, but interestingly, as observed above, there is no mention in respect of the sale in the GPA at Ex.D-9.
69. In this back ground also, the GPA and the affidavit at Ex.D-9 and D-2 cannot transfer the title of the suit property to Sri.Rajendran and thus, Sri.Rajendran cannot transfer the title of the suit property in favour of the defendant as it is well settled proposition of law that he who has no title cannot transfer the better title.
70. In view of the dictum laid down in the above decision, the rights under such transfers i.e. the GPA sales took place before the said decision i.e., prior to 11.10.2011 are protected by treating them as sale agreements and to get regularized the same.
71. In the present case on hand, Ex.D-9 is dated 20.12.1989 and the date of execution of Ex.D-2 is not stated. However, the stamp paper is dated 11.11.1989 and the notary signed the said affidavit on 06.01.1990. Hence, it can be safely concluded that it was sworn on 06.01.1990. Thus, Ex.D-9 and 2 are predated to the above 45 O.S.No: 8855/2004 decision and thereby Sri.Rajendran was entitled to get regularized the same. But, as per the pleadings and evidence on record, no such attempts were made by Sri.Rajendran.
72. In the present case on hand, the defendant has not produced any revenue records in respect of the suit property in the names of either Sri.K.Ranga or Sri.Rajendran. Hence, the liberal view taken in the above decision that if Ex.D-1, 9 and 2 have been accepted/acted by the revenue authorities to effect mutation, they need not be disturbed, merely on account of the above decision is not applicable to the facts of the case.
73. The other documents produced by the defendant are;
a) Ex.D-4 is the self declared property tax in form No.111 for the year 2004-05 in respect of the suit property in the name of the defendant.
b) Ex.D-5 to 7 are the tax payer's copies/tax paid receipts all dated 02.09.2004 in the name of the defendant in respect of the suit property for the years 2002-03, 2003- 04 and 2004-05 respectively.
46 O.S.No: 8855/2004
c) Ex.D-20/25 is the Form B Register Extract dated 22.11.2014 in the name of the defendant in respect of the suit property and they are one and the same documents.
d) Ex.D-21 and 26 to 35 are the tax paid receipts dated 28.09.2016; 14.05.2009, 18.06.2011, 19.08.2011, 21.08.2013, 21.08.2013, 14.11.2014, 23.02.2016, 25.07.2019, 25.07.2019 and 25.07.2019 in the name of the defendant in respect of the suit property for the years 2016-17, 2008-09, 2010-11 to 2015-16 and 2017-18 to 2019-20.
e) Ex.D-36 is the carbon copy of tax paid receipt dated 27.11.2009.
f) Ex.D-37 and 38 are the acknowledgment in respect of receipt of pay order respectively dated 14.05.2009 and 27.11.2009 in the name of the defendant in respect of the suit property.
g) Ex.D-22/39 are the extracts of property tax system in the name of the defendant in respect of the suit property for the period from 2008-09 to 2014-15 and they are one and the same documents.
47 O.S.No: 8855/2004
h) Ex.D-40 and -41 are the Online printouts of the payment of tax in the name of the defendant in respect of the suit property.
i) Ex.D-8 is the certified copy of EC for the period from 01.04.1989 to 30.06.2004 in respect of the suit property which depicts sale transaction at Ex.D-3 i.e., the sale deed executed by Sri.Rajendran in favour of the defendant.
74. All the above documents at Ex.D-4 to 8, 20/25, 21, 22/39, 26/38, 40 and 41 are based on the sale deed of the defendant at Ex.D-9 which has no legal value as noted above. Hence, these documents are not helpful to the defendant.
75. Moreover, even for the sake of arguments those documents are accepted by considering the liberal view taken by the Hon'lbe Apex Court observed above in Surya Lamps' case supra, then also it is well settled proposition of law as rightly contended by the plaintiff in his written arguments that the revenue records will not confirm any right over an immovable property.
48 O.S.No: 8855/2004
76. The other documents produced the defendnat are;
a) Ex.D-12 to 15 are the certified copies of the additional written statement, written statement of the 1 st defendant and the written statement of the 3rd and 4th defendants filed in OS.No.2452/2005 and OS.No.4525/2005 respectively. Ex.D-18 is the certified copy of the judgment in OS.No.7680/1998. The above suit are not connected to this suit. Of course, the above documents are produced to establish the fact that there were other suits also filed by and against Sri.C.Hanumanthaiah in respect of the sites he has sold vide the GPA and affidavits.
b) Ex.D-23 is the certified copies of FIR, complaint and charge sheet in Cr.No.20/2009 registered on the complaint of the defendant against Sri.C.Hanumanthaiah and the plaintiff for the offence under Section 420 of IPC in respect of the sale deed at Ex.P-10/D-19.
c) Ex.D-24 is the certified copies of FIR, complaint and charge sheet in Cr.No.578/2013 registered on the complaint of one Sri.Harsha against the plaintiff and his 49 O.S.No: 8855/2004 wife for the offence under Section 420 of IPC in respect of alleged cheating involving land transfer.
77. With his written arguments, the plaintiff has produced the photo copies of the deposition of Sri.Rajendran/CW-2/PW-2 in C.C.32136/09 and the judgment of acquittal of accused No.2 therein who is none other than the plaintiff herein and the copy of the judgment reveals that case against accused No.1 who is none other than Sri.C.Hanumanthaiah came to be abated and the said case is registered on the complaint of the defendant in Cr.No.20/2009 i.e. the case at Ex.D-23.
78. Moreover the documents at Ex.D-23 and D-24 can be considered as a corroborative piece of evidence for consideration of the conduct and veracity of the parties and not on merits.
79. So, from the above discussions, it is clear that by virtue of the decision of the Hon'ble Apex Court in Suraj Lamps' case supra, the GPA sales cannot transfer the title in an immovable property and it is only by way of a deed of conveyance i.e., the registered sale deed and thus, no title was passed to Sri.K.Ranga by virtue of Ex.D-1 and 50 O.S.No: 8855/2004 Sri.K.Ranga cannot transfer the title in favour of Sri.Rajendra by virtue of Ex.D-9 and D-2 and thus, though Ex.D-3 is a registered sale deed in favour of the defendant, but executed by Sri.Rajendran who had not acquired the title legally, no title was passed to the defendant by virtue of Ex.D-3.
80. On the other hand admittedly, the sale deed in favour of the plaintiff at Ex.P-10/D-19 being executed by the admitted owner of the suit property, i.e., Sri.C.Hanumanthaiah and in view of the defendant failing to establish the alleged collusion between the plaintiff and the original owner Sri.C.Hanumanthaiah, the plaintiff is successful in establishing that he is the owner of the suit property by virtue of the sale deed at Ex.P-10/D-19.
81. Therefore, additional issue No.1 both dated 05.11.2013 and 03.03.2016 are answered in affirmative and both the additional issues Nos.2 and 3 dated 05.11.2013 are answered in negative.
82. ADDITIONAL ISSUE N o.5 DATED 05.11.2013:- It is the case of the defendant that the 51 O.S.No: 8855/2004 plaintiff has not properly valued the suit and the Court fee paid is not correct.
83. The record reveals that initially when the plaintiff has come up with this suit for permanent injunction, he has valued the suit under Section 26(c) of the Karnataka Court Fees and Suits Valuation Act of 1958 (for short, "the Act") and paid Rs.25/- as Court Fee, which is prima facie correct.
84. On amending his plaint seeking relief of declaration, the plaintiff has valued the suit under Section 24(b) on Rs.2,25,000/- i.e. at the market value of Rs.125/- per square feet on total extent of 1,800 square feet and calculated the fee on half of the value of Rs.2,25,000/- and paid court fee of Rs.7,500/-.
85. Admittedly, the provision of the Act deals with the relief of declaration is Section 24 which is extracted here below;
"24. Suits for declaration.- In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under Section 25.-
(a) where the prayer is for a declaration and for possession of the 52 O.S.No: 8855/2004 property to which the declaration relates, fee shall be computed on the market value of the property or on (rupees one thousand) whichever is higher;
(b) whether the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market value of the property on (rupees one thousand), whichever is higher;
86. So, the suit valued and the Court fee paid on the relief of declaration and injunction by the plaintiff under Section 24(d) is prima facie correct and though the defendant has contended that the suit is not properly valued and the Court fee paid is not correct, she has not furnished any details in that regard and she has also not let in any evidence to establish that the market value stated by the plaintiff is not correct.
87. However, admittedly the present suit is filed on 01.12.2004 and the sale deed of the plaintiff at Ex.P-10 is dated 27.10.2004 which demonstrates as observed above that the sale consideration is Rs.2,48,000/-. Therefore, prima facie it appears that the market value of the suit 53 O.S.No: 8855/2004 property in the financial year 2003-04, was Rs.2,48,000/- as Ex.P-10 is a registered sale deed and thus, the plaintiff was required to pay the Court fee on Rs.2,48,000/-. So for the calculation of the Court fee at half of the market value on the relief of declaration and injunction is correct.
88. As noted above, thereafter, the plaintiff has once again got amended his plaint for the relief of possession and has not paid any Court fee thereon. Admittedly, as on date the suit of the plaintiff is for the relief of declaration and possession and thus, he is required to pay the Court fee under Section 24(a) of the Act i.e. on the full market value i.e. on Rs.2,48,000/-.
89. Thus, it is correct that the Court fee paid by the plaintiff on the relief of declaration and possession under Section 24(b) on the market value of Rs.2,25,000/- is not correct. Therefore, this additional issue is answered in affirmative.
90. ADDITIONAL ISSUE No.1 DATED 10.03.2020:- It is the case of the defendant that the relief of declaration sought by the plaintiff is hit by limitation. 54 O.S.No: 8855/2004
91. Before venturing to the above issue, it is necessary to go through the comprehensive judgment of the Hon'ble Apex Court with regard to 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 i.e., Anathula Sudhakar's case and the said decision is followed by the Hon'ble Apex Court recently in Ratnagiri Nagar Parishad's case.
a) AIR 2008 SC 2033 (between Anathula Sudhakar V.P.Buchi Reddy (Dead) by Lrs. and Others in Appeal (Civil) No.6191 of 2001 decided on 25.03.2008 before their Lordships R.Raveendran and P.Sathasivam JJ.) wherein the Hon'ble Apex Court has observed that;
"......
10. On the contentions urged, the following questions arise for our consideration in this appeal:
(i) What is the scope of a suit for prohibitory injunction relating to immovable property?
ii) Whether on facts, plaintiffs ought to have filed a suit for declaration of title and injunction?
(iii) Whether .....55 O.S.No: 8855/2004
11. 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.
11.1) 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 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.
11.2) 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.
11.3) 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 defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to 56 O.S.No: 8855/2004 establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A could is said to raise over a person's title when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action of declaration is the remedy to remove the cloud on the title of the property. .....Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, file a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raised a serious dispute or cloud over the plaintiff's title, then there is a need for the plaintiff to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the Court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
.....
57 O.S.No: 8855/2004
14. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This mean that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the Court may venture a decision on the issue to title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involved complicate or complex question of fact and law, or where Court feels that parties had not proceeded on the basis to the title was at issue, the Court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full fledged suit for declaration and consequential reliefs.
.......
17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under
(a) Where a cloud is raised over plaintiff's title and he does not have 58 O.S.No: 8855/2004 possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiffs' title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the findings on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in case of vacant site, the issue of title may directly and substantially arise for consideration as without a finding thereon, it will not possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issues regarding title (either specific, or implied as noticed in Annaimuthu Theva (supra). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the Court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated question 59 O.S.No: 8855/2004 of fact and law relating to title, the Court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title to which parties lead evidence, if the matter involved is simple and straight-
forward, the Court may decide upon the issue regarding title, even in a suit for injunction, But such cases, are the exception to the normal rule that question of title will not be decided in a suit for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongly makes a claim or tries to encroach upon his property. The Court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.
....."
b) The judgment of the Hon'ble Supreme Court in Appeal (Civil) No.8241 of 2009 (between Jharkhand State Housing Board V. Didar Sing & Another decided on 60 O.S.No: 8855/2004 09.10.2018 before his Lordship N.V.Ramana J.) wherein the Hon'ble Apex Court has observed that;
"......
2. Brief facts in ...... suit for permanent injunction alleging that suit schedule property ......
3. The defendant has filed the written statement contending that the plaintiff vendor has no legal right and title over the suit schedule property and the sale deed executed by his vendor will not confer any right or title to the plaintiff. ......
........
10. The issue that fall for our consideration is: Whether the suit for permanent injunction is maintainable when the defendant disputes the title to the plaintiff?
11. It is well settled by catena of Judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raised a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.
...."
61 O.S.No: 8855/2004
c) The judgment of the Hon'ble Supreme Court (in Civil Appeal No.2412/2020 arising out of SLP (C) No.18417/2017 between Ratnagiri Nagar Parishad Versus Gangaram Narayan Ambekar & Others decided on 06.05.2020 before their Lordships A.M.Khanwilkar and Dinesh Maheshwari JJ.) wherein the Hon'ble Apex Court has observed that;
".........
14. Arguendo, the plaint as filed by the respondents Nos.1 to 19 ...... We may also refer to Anathul Sudhar vs. P.Bachi Reddy (D) by LRs. & Ors, wherein this Court opined that where the averments regarding title are mentioned in the plaint but if the matter involved complicated question of fact and law relating title, the Court will relegate the parties to the remedy of a comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
15. Applying the principle underlying these dicta, as no declaration has been sought by the plaintiffs in the present case, the suit for simpliciter permanent injunction could not be proceeded further at all. .....
...."
92. Keeping in mind the general principles laid down in the above citations as to, when a mere suit for 62 O.S.No: 8855/2004 permanent injunction will lie and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, let this Court to consider this issue.
93. As noted above, initially, the plaintiff has brought this suit on 01.12.2004 for the relief of permanent injunction on the aversions that the defendant being an utter stranger along with her husband and servants came near the suit property on 28.11.2004 and were making preparations to put up certain constructions and he with the help of his friends and relatives prevented her from carrying out any further activities over the suit property. As there was threat by the defendant to interfere with his possession and to dispossess him from the suit property, he has come up with the suit for injunction.
94. The plaint averments disclose no further cause of action on amendment for the relief of declaration. For that matter, it is apparent on the face of record that the only amendment sought and carried out then is the insertion of the relief of declaration of title.
63 O.S.No: 8855/2004
95. However, it is in the affidavit accompanying the application sought for amendment to insert the relief of declaration of title filed under Order VI Rule 17 read with Section 151 of CPC filed on 28.09.2012 that after filing the instant suit, the defendant entered appearance and filed her written statement denying his title to the suit property, but admitted the title of his vendor over the same and thus, he was constrained to seek amendment of pleadings and to seek the relief of declaration of his title to the suit property.
96. As per the principles laid down by the Hon'ble Apex Court in Anathula Sudhakar's case supra which are followed in the subsequent decisions observed above, in a suit for injunction when the defendant discloses in his defence the denial of title, then there is a need for plaintiff to amend the plaint and to convert the suit into one for declaration or in the alternative, he may withdraw the suit for bare injunction with permission of the Court to file a comprehensive suit for declaration and injunction and he may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the 64 O.S.No: 8855/2004 suit raised only the issue of possession and not any issue of title.
97. Thus, in the present case on hand, the plaintiff has rightly got converted his suit for the relief of injunction and there is no dispute also raised by the defendant in that regard. The dispute is that the relief sought by way of such an amendment is hit by limitation.
98. There is no dispute that the relief of declaration sought in this suit for the purpose of limitation falls under Article 58 of the Indian Limitation Act which prescribes the limitation as, "3 years from the date on which the right to sue first accrues".
99. In the present case on hand, as noted above, it is the case of the plaintiff that in her written statement, the defendant has denied his title over the suit property and thus, he constrained to get converted his suit for declaration of title.
100. The record reveals that the defendant has filed her written statement denying the title of the plaintiff over the suit property on 05.02.2005. So, the denial of his title over the suit property brought to the knowledge of the 65 O.S.No: 8855/2004 plaintiff on 05.02.2005 and admittedly, as noted above, the application for amendment to insert the relief of declaration was filed on 28.09.2012, i.e., after 7 years, 7 months and 23 days, thus, after expiry of limitation.
101. At this stage, it is pertinent to go through the decisions reported in;
a) (2016) 1 Supreme Court Cases 332 = AIR 2015 SC 3364 (between L.C.Hanumanthappa (Since Dead) by his LRs. Vs. H.B.Shivakumar in Civil Appeal No.6595 of 2015 arising out of SLP (Civil) No.15513 of 2015 decided on 26 August, 2015 before their Lordships A.K.Sikri, Rohinton Fali Nariman JJ.) wherein the Hon'ble Apex Court has held that;
"A. Civil Procedure Code, 1908 - Or. 6 R.17 - Amendment in plaint - Further relief added by way of amendment - If barred by limitation on date of grant of amendment - Determination of - Doctrine of relation back i.e. relating back the amendment to the date when the suit was originally filed - Applicability of -
governing principles as to,
summarized.
- Appellant filing as suit on 9-3-
1990 for permanent injunction against respondent-defendant - ....66 O.S.No: 8855/2004
- In original written statement filed on 16-5-1990 defendant had clearly denied plaintiff's title to suit property - thus, in view thereof, held, right to sue for declaration of title first arose on 16-5-1990 - In this way, period of limitation of 3 years for filing suit for declaration of title, as provided under Art. 58, Limitation Act, 1963, continued from 16-5-1990 till 15-5- 1993 - Hence, relief as to declaration of title added by amendment in 2002, was barred by limitation - Suit rightly dismissed by High Court on ground of limitation.
.....
13. We have heard learned counsel for parties. It is not disputed that Article 58 of the Limitation Act would apply to the amended plaint inasmuch as it sought to add the relief of declaration of title to the already existing relief for grant of permanent injunction. In Khatri Hotels Private Limited & Anr. V. Union of India & Anr., (2011) 9 SCC 126, this Court while construing Article 58 of the Limitation Act held as follows:
Article 58 of the Schedule to the 1963 Act, which has a bearing on the decision of this appeal, reads as under:
THE SCHEDULE Period of Limitation (See Section 2(j) and 3) First Division - Suits Description of suit Period of Time from which period limitation begins to run .... Part III - Suits Relating To Declarations ...67 O.S.No: 8855/2004
58 To obtain any other Three Years When the right to sue first accrues.
declaration.
.....
14. Given this statement of the law, it is clear that the present amendment of the plaint is indeed time-barred in that the right to sue for declaration of title first arose on 16 th May, 1990 when in the very first written statement of the defendant had pleaded, in para 13 in particular, that the suit for injunction simpliciter is not maintainable in that the plaintiff had failed to establish title with possession over the suit property. The only question that remains to be answered is in relation to the doctrine of relation back insofar as it applies to amendment made under Order VI Rule 17 of the Code of Civil Procedure.
.....
23. Similarly, in Vishwambhar & Ors. V. Laxminaryan (Dead) through LRs & Anr., (2001) 6 SCC 163, in a suit originally filed for recovery of possession, an amendment was sought to be made after the limitation period had expired, for a prayer of declaration that certain sale deeds be set aside. This was ....
........
29. Applying the law thus laid down by this Court to the facts of this case, ..... There can be no doubt that on an application of Khatri Hotels Private Limited (supra), the right to 68 O.S.No: 8855/2004 sue for declaration of title first arose on the facts of the present case on 16 th May, 1990 when the original written statement clearly denied the plaintiffs' title. By 16th May, 1993 therefore a suit based on declaration of title would have become time-barred. It is clear that the doctrine of relation back would not apply to the facts of this case for the reasons that the court which allowed the amendment expressly allowed it subject to the plea of limitation, indicating thereby that there are no special or extraordinary circumstances in the present case to warrant the doctrine of relation back applying so that a legal right that had accrued in favour of the defendant should be taken away. ....
b) (2011) 9 Supreme Court Cases 126 (between Khatri Hotels Private Limited and Another Versus Union of India and Another in Civil Appeal No.7773 of 2011 arising out of SLP (C) No.22126 of 2009 from the judgment and Order dated 21-8-2009 of the High Court of Delhi at New Delhi in RFA No.123 of 2009 decided on September 9, 2011 before their Lordship G.S.Sangvi and H.L.Dattu, JJ.) wherein the Hon'ble Apex Court held that;
".....
B. Limitation Act, 1963 - Art. 58 and S.5 - Suit for declaration and 69 O.S.No: 8855/2004 permanent injunction for restraining interference with possession of immovable property - Art. 58 of 1963 Act vis-à-vis Art.120 of 1908 Act - Relative scope - Cause of action - "When right to sue first accrues" - "First accrues" - Meaning - Successive violation of right will not give rise to fresh cause of action - Limitation Act, 1908, Art. 120 Held:
While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word "first" has been used between the words "sue" and "accrued". This would mean that if a suit is based on multiple cause of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put in differently, successive violation of the right will not give rise to fresh cause of the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued.
..........."
c) (1989) ILR (Kar) 993 (between Dada Jinappa Khot Appellant Vs. Shivalingappa Ganapati Bellanki Respondent in RSA.No.1042 of 1978 decided on 09.12.1988 before his Lordship Shayamasundar, J.) wherein the Hon'ble High Court of Karnataka has held that;
70 O.S.No: 8855/2004
Limitation Act, 1963 - Section 58
- Right to sue first accrued to the plaintiff - Rise to a compulsory cause of action - The new Act with change in the language of the statute the same having become more specific and precise with the inclusion of the words "when right to sue first accrues", there can be little doubt that although a cause of action may have arisen even on subsequent occasions as well, what is material for the purpose of computing the period of limitation under Article 58 is the date when the right to sue first accrued - In order to identify as to when exactly the right to sue first accrued to the plaintiff it may be necessary to make a brief reference to the facts of the case. The defendant claiming to be the owner which forms part of the suit property appears to have made an application to the revenue authorities for consideration of his complaint that 16 guntas of his land had been appropriated by the plaintiff - The particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right - .....
........
7. I am to notice that the expression "where the right to sue first accrues" appearing in Article 58 came to be included in the Limitation Act of 1964 in place of Article 120 of the Old Act of 1908. In Article 120 of the old Act, which was the corresponding Article to Article 58 of the new Act, the 71 O.S.No: 8855/2004 language used was quite different, in that the language employed in the old Act read, "when the right to sue accrues". It may well be on the basis of the language of the provision as it stood prior to the Amending Act of 1964, it was possible to contend that whenever the right to sue accrued, a plaintiff who was the repository of such a right could treat it was the commencement of the period of limitation. But under the new Act with the change in the language of the statute the same having become more specific and precise with the inclusion of the words "when right to sue first accrued", there can be little doubt that although a cause of action may have arisen even on subsequent occasions as well, what is material for the purpose of the computing the period of limitation under Article 58 is the date when the right to sue first accrued.
...."
d) The judgment of the Hon'ble Apex Court in Civil Appeal No.9519 of 2019 arising out of SLP (Civil) No.11618 of 2017 between Dahiben vs. Arvindbhai Kalyanji Bhanusali (Garjat) (D) their LRs and Others decided on 9 July, 2020 before his Ladyship Ms. Indu Malhotra J., wherein the Hon'ble Supreme Court has held that;
72 O.S.No: 8855/2004
".......
14. The Limitation Act, 1963 prescribes a time-limit for the institution of all suits, appeals and applications. Section 2(j) defines the expression period of limitation to mean the period of limitation prescribed in the Schedule for suits, appeal or applications. Section 3 lays down that every suit instituted after the prescribed period, shall be dismissed even though limitation may not have been set up as a defence. If a suit is not covered by any specific article, then it would fall within the residuary article.
Articles 58 and 59 of the Schedule to the 1963 Act, prescribe the period of limitation for filing a suit where a declaration is sought, or cancellation of an instrument, or rescission of a contract, which reads as under:
.....
The period of limitation prescribed under Articles 58 and 59 of the 1963 Act is three years, which commences from the date when the right to sue first accrues.
In Khatri Hotels Pvt. Ltd. & Anr. V. Union of India & Anr., this Court held that the use of the word first between the words sue and accrued, would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. That is, if there are successive violation of the right, it 73 O.S.No: 8855/2004 would not give rise to a fresh cause of action, and the suit will be liable to be dismissed, if it is beyond the period of limitation counted from the date when the right to sue first accrued.
......"
102. So, in the back ground of the principles rendered in the above decisions, if the facts of this case on hand are taken note off, as noted above, admittedly, the plaintiff came to know about the denial of his title over the suit property on the defendant filing her written statement which is admittedly filed on 05.02.2005 and the amendment application seeking insertion of the relief of declaration was filed on 28.09.2012. Thus, the limitation was expired as on the date of filing the amendment application. Accordingly, the present suit in respect of the relief of declaration is hit by limitation. Therefore, this additional issue is answered in affirmative.
103. ADDITIONAL ISSUE No.2 DATED 10.03.2020:- It is the case of the plaintiff that the there is no cause of action to the counter claim sought by the defendant.
74 O.S.No: 8855/2004
104. On the other hand, it is in the additional written statement under Order VIII Rule 1 read with Counter Claim under Order VIII Rule 6-A of CPC filed by the defendant on 20.08.2013 that the cause of action arose when the plaintiff presented the amended plaint seeking relief of declaration and thus, her counter claim is within limitation.
105. On the other hand, even there is no pleading with regard to the limitation for the counter claim, it is in the written arguments of the plaintiff that the counter claim is barred by limitation as;
a) The suit was filed in the year 2004 wherein it is clearly pleaded that the defendant has no right, title or possession over the suit property and the same absolutely belongs to him.
b) The defendant appeared and filed her 1 st written statement on 05.02.2005, but has come up with the counter claim of declaration of her title to the suit property only in the year 2013.
c) Under Article 58 of the Limitation Act, the limitation prescribed is 3 years and that the limitation 75 O.S.No: 8855/2004 starts immediately on party learning that her title to the property is denied meaning thereby the right to sue accrued.
d) Thus, the title of the defendant denied or disputed even at the time of filing her 1 st written statement on 05.02.2005 and the counter claim should have been filed within a period of 3 years. Hence, it is barred by limitation.
106. Even there is no specific issue/additional issue is framed with regard to the limitation in respect of the counter claim, under the facts and circumstances of the case, it is interlinked to the cause of action to file the counter claim.
107. Moreover, in view of the principles rendered by the Hon'ble Apex Court in Dahiben's case supra, Section 3 of the Limitation Act lays down that every suit instituted after the prescribed period, shall be dismissed even though limitation may not have been set up as a defence. In that view also, there is no bar to consider the limitation point in respect of the counter claim of the defendant.
108. It is apparent on the face of record that in the plaint before amendment itself i.e., filed as on the date of 76 O.S.No: 8855/2004 filing the suit on 01.12.2004, the plaintiff has specifically contended that the defendant is an utter stranger to the suit property having no right, title and interest over the same.
109. Thus, as rightly contended by the plaintiff in his written arguments that the title of the defendant over the suit property was denied/disputed as on the date of filing the suit itself and thus, in view of the decisions of the Hon'ble Apex Court in L.C.Hanumanthappas' case, Kathris' Hotels Case and Dehibens' case and the decision of the Hon'ble High Court of Karnataka in Dada Jinappa Khots' case noted supra, within 3 years from the date of receipt of the plaint copy, the defendant was required to file her counter claim as the cause of action for her to file her counter claim for declaration accrued first as on that date.
110. The record reveals that the defendant put her appearance though her counsel on 10.01.2005 and filed her 1st written statement on 05.02.2005. So, the limitation to file her counter claim expires on 09.01.2008 or at best, if the date of filing the 1st written statement is taken into consideration, on 04.02.2008.
77 O.S.No: 8855/2004
111. But, admittedly, the counter claim was filed with her 2nd written statement i.e., the 1st additional written statement filed on 20.08.2013 i.e., after expiry of limitation and thus, there is no cause of action for the defendant to file her counter claim for declaration of her title as on 20.08.2013 on the ground that the cause of action arose on the plaintiff presenting the amended plaint seeking declaration of his title over the suit property.
112. In the course of arguments, the counsel for the plaintiff has also argued that the counter claim of the defendant is also hit by Section 34 of the Specific Relief Act as the defendant has sought only the relief of declaration without any consequential relief of injunction.
113. On the other hand, it is the defence argument that as the defendant has been in possession of the suit property, no relief of injunction is sought.
114. But, as noted above, the principles rendered by the Hon'ble Apex Court in Anthula Sudhakar's case supra, the general principles as to, when a mere suit for permanent injunction will lie, and when it is necessary to 78 O.S.No: 8855/2004 file a suit for declaration and/or possession with injunction as a consequential relief, are well settled i.e.,
a) Where a person is in lawful or peaceful possession of a property and such possession is interfered or threatened by the other, a suit for an injunction simpliciter will lie.
b) Where the title of a person 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.
c) Where a person is in possession, but his title to the property is in dispute, or under a cloud, or where the other person asserts title thereto and there is also a threat of dispossession, to sue for declaration of title and the consequential relief of injunction.
115. In the present case on hand, the plaintiff asserts his title over the suit property and thereby disputes the title of the defendant over the same. Though there is no specific aversion that there is threat of dispossession of the defendant, as on the date of filing the counter claim by the defendant, it was the case of the plaintiff that he was in 79 O.S.No: 8855/2004 possession of the suit property and thus, disputed the possession of the defendant which is nothing but threat to the possession of the suit property. Thus, prima facie, the defendant was required to seek her counter claim of declaration with consequential injunction.
116. So far the arguments of the plaintiff that the counter claim of the defendant is hit by Section 34 of the Specific Relief Act, it is necessary to go through the said provision which is extracted here below;
"34. Discretion of Court as to declaration of status or right.- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation.- A trustee of property is a "person interest to deny" as title adverse to the title of some one ho is not in existence, and 80 O.S.No: 8855/2004 for whom, if in existence, he would be a trustee".
117. In the present case on hand, as noted above, in view of the principles rendered by the Hon'ble Apex Court in Anathula Sudhakar's case supra, the defendant was required to seek her counter claim of declaration with consequential injunction, but she omitted to do so. Hence, prima facie, the counter claim of the defendant is also hit by Section 34 of the Specific Relief Act.
118. At this stage, it is also pertinent to go through the decision reported in 1974 SCC OnLine Kar 39 : ILR 1974 Kar 664 (between Pandiranath Appellant Versus Ramachandra and Others Respondents in Regular Second Appeal No.581 of 1970 against the judgment and decree dated 31st March, 1970 passed in RA.No.25 of 1967 by the Civil Judge, Bidar, confirming those, dated 31 st January, 1967 passed in OS.No.23/1 of 1996 passed by the Munsiff, Aurad decided on February 12, 1974 before his Lordship Malimath, J.) wherein the Hon'ble High Court of Karnataka has held that;
"(B) Specific Relief Act (central Act No.47 of 1963) - Section 34 - Suit 81 O.S.No: 8855/2004 for declaratory relief - Plaintiff not seeking consequential relief which he ought to have sought - Suit liable to be dismissed.
Held: Where the plaintiff, who has sought a declaratory relief, could have asked for a relief of possession, but has omitted to do so, the provisions of Section 34 of the Specific Relief Act will be attracted to such a suit and, consequently, such a suit has to be dismissed in its entirety for omission to ask for the consequential relief of possession.
9. As rightly pointed out by Shri Murlidher Rao, the plaintiff Ramachandran himself has admitted in his evidence that he was not in possession of the suit properties on the date of suit. This is, therefore, a case where the plaintiff, who has sought for declaratory relief, should have asked for a relief of possession but has omitted to do so. Provisions of Section 34 of the Specific Relief Act, 1963, are therefore clearly attracted. Therefore,the plaintiff's suit has to be dismissed in its entirely for omission to ask for the consequential relief of possession Hence, the decrees passed by the Courts below in favour of Ramachandra, cannot be sustained.
.....
...."
82 O.S.No: 8855/2004
119. In the above case, it was the consequential relief of possession and on the other hand, in the case on hand, it is the consequential relief of injunction. Thus, in view of the dictum laid down in the above decision and the provision of Section 34 of the Specific Relief Act observed above, it is clear that this suit is hit by Section 34 of the Specific Relief Act. Hence, this additional issue is also answered in affirmative.
120. ADDITIONAL ISSUE DATED 17.03.2020:- It is the case of the plaintiff that the Court fee paid by the defendant on her counter claim is not proper.
121. The record reveals that the defendant has sought the relief of declaration of her title over the suit property by virtue of the registered sale deed dated 13.02.1992 at Ex.D-3 and valued the suit at Rs.2,40,000/- and paid the Court fee of Rs.16,985/-. She has not furnished the details as to, how she has arrived at that fee.
122. However, the relief sought by the defendant in her counter claim falls under Section 24 of the Act and in view of the valuation made by the plaintiff at Rs.2,25,000/- and thus, making the payment of Rs.7,500/- as Court fee, 83 O.S.No: 8855/2004 it appears that the defendant has paid the Court fee on the full market value at Rs.2,40,000/-.
123. In view of the above observations, as the defendant required to file the suit for declaration and injunction, he is required to value the suit under Section 24(b) of the Act and thus, required to pay the Court fee at half of the market value as observed by this Court while discussing on additional issue No.5 dated 05.11.2013 i.e., the valuation made by the plaintiff and the payment of Court fee thereon i.e., Rs.2,48,000/-, it appears that the defendant has paid Court fee more than the Court fee she is required to be paid. Hence, this additional issue is answered in negative.
124. ADDITIONAL ISSUE No.4 DATED 05.11.2013:- In view of the defendant failing to establish her lawful title over the suit property by virtue of the registered sale deed at Ex.D-3; as her counter claim lacks cause of action and hit by limitation and Section 34 of the Specific Relief Act, she is not entitled for the counter claim of relief of declaration of her title over the suit property. Hence, this additional issue is answered in negative. 84 O.S.No: 8855/2004
125. ADDITIONAL ISSUE No.4 DATED 03.03.2016:- In view of the above observations, even the plaintiff is successful in establishing that he is the absolute owner in possession of the suit property by virtue of the registered sale deed at Ex.P-10/D-19, as the suit is hit by limitation in respect of the relief of the declaration, the plaintiff is not entitled for the relief of declaration.
126. So for the relief of possession, it is the case of the plaintiff that the defendant who is very powerful both in money and men with the help of her men and husband forcibly dispossessed him from the suit property in the last week of December 2013.
127. To establish the same, apart from his oral evidence, the plaintiff has let in the revenue documents noted above at Ex.P-1, 4 to 9 and 12 in the name of his vendor and Ex.P14 to 19 in his name consequent to his sale deed at Ex.P-10/D-19.
128. Of course, the defendant has also produced the revenue records Ex.D-4 to 8, 20/25, 21, 22/39, 26/38, 40 and 41 in her name, but they are all consequent to her title 85 O.S.No: 8855/2004 deed at Ex.D-3 which does not transfer the legal title in her favour.
129. As noted above, she has not produced any documents at least the revenue records in the name of her vendor i.e., Sri.Rajendran and his vendor Sri.K.Ranga to establish their possession over the suit property before her purchase of the same.
130. Therefore, in the circumstances of the case, the preponderance of probabilities much tilts in favour of the case of the plaintiff with regard to his possession over the suit property from the date of his purchase and before that, the possession of his vendor and he lost the possession over the suit property during the pendency of this suit in the last week of December 2013.
131. The limitation for the relief of possession is admittedly, 12 years from the date of dispossession and in this suit, the dispossession is during the pendency of the suit. Hence, there is no question of limitation.
132. Hence, though the plaintiff is not entitled for the relief of declaration of title, he is entitled for the relief of possession as he was in possession of the property as on 86 O.S.No: 8855/2004 the date of the suit and thus, entitled for its restitution. Accordingly, this additional issue is answered in affirmative.
133. ISSUE No.4 DATED 30.11.2007:- From the above discussions, this Court proceeds to pass the following;
ORDER The suit of the plaintiff is hereby decreed in part.
Consequently, the relief of declaration of title sought by the plaintiff is rejected as it is hit by limitation.
However, it is declared that the plaintiff is entitled for the possession of the suit property.
The counter claim of the defendant is hereby dismissed.
The parties are directed to bear the costs of the suit on their own.
Office is directed to collect the remaining Court fee from the plaintiff on calculating the Court fee on the market value at Rs.2,48,000/- under Section 24(a) of the Karnataka Court Fee and Suits Valuation Act.
Office is directed to draw a decree accordingly on collection of the remaining Court fee from the plaintiff.
(Dictated to the Judgment Writer directly on computer, corrected by me and then pronounced in the open Court on this the 18th day of December 2020).
(K. KATHYAYANI), LXVI Addl.CC & SJ, Bengaluru.
87 O.S.No: 8855/2004SCHEDULE All that piece and parcel of the property in No.41 with CMC serial No.89 with khatha No.10 formed in Sy.No.16/2 of Hegganahalli Village, Yeshwanthapura Hobli, Bengaluru North Taluk in the 34th Ward of Dasarahalli City Municipal council measuring East to West: 48+42 feet and 2 North to south 40 feet and bounded don the : and bounded on:
East by : Hegganahalli Main Road,
West by : Site No.40
North by : 4th Cross (Sri.Chikkathimme Gowda
Road) and
South by : 3rd Cross (Smt. Nanjamma Road)
(K. KATHYAYANI),
LXVI Addl.CC & SJ,Bengaluru
ANNEXURE
1. List of witnesses examined for plaintiff:
P.W.1: C. Honnaiah.
2. List of documents marked for Plaintiff:
Ex.P1 : RTC Extract
Ex.P.2 : Copy of Demand Register
Ex.P.3 : Tax paid receipt
Ex.P.4&5 : Challan Issued by Corporation
Ex.P.6to8 : Property Tax list
Ex.P.9 : Copy of property tax Form No-111.
88 O.S.No: 8855/2004
Ex.P.10 : Mother sale deed daed 27.10.2004
Ex.P.11 : Acknowledgment issued by Dasarahalli
Corporation for change of Katha.
Ex.P.12 : Tax paid challan
Ex.P.13 : Spot Mahazar
Ex.P.13(A) : CC of Mutation Register extract of M.R.3/1985-86 dated: 7.8.1985.
Ex.P.14 : CC of Form B property register extract. Ex.P.15to17: Tax paid receipts Ex.P.18&19: Tax paid receipts along with challan
3. List of witnesses examined for Defendants:
D.W.1: Mamatha Kantharaj.
4. List of documents marked for Defendants:
Ex.D1 : Original GPA dated: 21.6.1985 executed by brother of plaintiff Sri.C.Hanumanthaiah in favour of K.Ranga.
Ex.D.2 : Affidavit of Sri.K.Ranga.
Ex.D.3 : Original Sale deed dated 13.02.1992
Ex.D.4 : 'B' Extract
Ex.D.5to7 : Tax paid challans
Ex.D.8 : Encumbrance certificate
Ex.D.9 : GPA dated: 20.12.1989 executed by
Ranga in favour of vendor of plaintiff Rajendran.
Ex.D.10 : CC of plaint in O.S. 6287/1998 Ex.D.11&12: CC of plaint and additional written statement in O.S. 2452/2005 Ex.D.13to15: Written statement of defendant Nos. 3 & 4 in O.S.4575/2005 Ex.D.16&17: CC of plaint and written statement in O.S.6931/2006 Ex.D.18 : CC of Judgment in O.S.7680/1998 Ex.D.19 : CC of Sale Deed dated: 27.10.2004 Ex.D.20 : Tax extract issued by BBMP Ex.D.21 : Tax paid receipt 89 O.S.No: 8855/2004 Ex.D.22 : Acknowledgment for payment tax issued by BBMP Ex.D.23 : CC of FIR and Charge sheet CC:32136/2009 Ex.D.24 : FIR and charge sheet in another case. Ex.D.25 : CC of Form B property register extract Ex.D.26to36: Tax paid receipts Ex.D37&38 : Endorsement issued by incharge of Dasarahalli Range, BBMP Ex.D.39to 41: Online printouts in proof of payment of tax with certificate by way of affidavit.
(K. KATHYAYANI), LXVI Addl.CC & SJ,Bengaluru 90 O.S.No: 8855/2004 Both the plaintiff and defendant and their counsel are The Judgment is pronounced in the open Court (vide separate Judgment).
ORDER The suit of the plaintiff is hereby decreed in part.
Consequently, the relief of declaration of title sought by the plaintiff is rejected as it is hit by limitation.
However, it is declared that the plaintiff is entitled for the possession of the suit property.
The counter claim of the defendant is hereby dismissed.
The parties are directed to bear the costs of the suit on their own.
Office is directed to
collect the remaining Court fee
from the plaintiff on
calculating the Court fee on
the market value at
Rs.2,48,000/- under Section
24(a) of the Karnataka Court
Fee and Suits Valuation Act.
Office is directed to draw
a decree accordingly on
91 O.S.No: 8855/2004
collection of the remaining
Court fee from the plaintiff.
LXVI Addl.CC & SJ,
Bengaluru