Bangalore District Court
Sri Mylarappa (Dead By Lrs) vs ) Sri G.N. Bommaiah on 27 January, 2021
IN THE COURT OF THE X ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-26).
Dated this the 27th day of January, 2021.
Present
Sri MARUTHI S. BAGADE, B.Com., LL.B.(Spl.),
X Addl. City Civil & Sessions Judge,
Bangalore.
O.S.No.1066/2013
Plaintiff: Sri Mylarappa (dead by Lrs)
(a) Smt.M. Munirathnamma
d/o Mylarappa
w/o B.R. Ajjappa
Aged about 50 years
House No.92
Laggere Main Road
Near Parvathinagara Bus Stop
Bengaluru-560 058.
(b) Smt.M. Munilakshmamma
@ Lakshmamma
d/o Mylarappa w/o Konappa
aged about 47 years
r/at No.263/1, 1st Cross
Anjenayaswamy Temple Road
Babusabpalya, Kalyananagar
Bengaluru-560 043.
(By Sri T.S. Ravikumar, Adv. for
plaintiff No.(a) and Sri K.V.
Venkatesh, Adv. for plaintiff No.(b))
Vs.
Defendants: 1) Sri G.N. Bommaiah
s/o Nanjaiah
aged about 65 years
2) Smt.Jayalakshmamma
w/o G.N. Bommaiah
aged about 60 years
2 O.S.No.1066/2013
Both are r/at No.45, 2nd Cross
Nagappa Block, Srirampura
Bengaluru-560 021.
(By Sri K.G. Sadashivaiah, Adv.)
Date of institution of the suit 06.02.2013
Nature of the suit For declaration,
mandatory &
permanent
injunctions and
damages
Date of the commencement 09.07.2014
of recording of evidence
Date on which the judgment 27.01.2021
Pronounced
Total duration Years Months Days
07 11 21
JUDGMENT
Deceased plaintiff- Mylarappa has filed this suit against the defendants for declaration that he is absolute owner of the suit schedule property; declaration that the agreement of sale dated 10.06.1983 executed by the plaintiff in favour of defendant No.1 and sale deed dated 26.09.2006 executed by the defendant No.1 in favour of defendant No.2 in respect of the suit schedule property are null and void and therefore liable to be side aside; directing the defendant No.2 to hand over the vacant physical possession of the suit schedule property to the plaintiff; permanent injunction restraining the defendant 3 O.S.No.1066/2013 No.2, her legal heirs, agents, henchmen, servants, officials or anybody from alienating or encumbering the suit schedule property and to award damages @ Rs.5,000/- per month for the use and occupation of the suit schedule property from the date of suit till recovery of possession.
2. The brief facts of the plaintiff's case are as under:-
One Sri Mallaiah, father of the plaintiff, got inherited the land bearing Sy.No.153 measuring 12 acre 14 guntas including 0.26 guntas kharab, situated at Laggere village, Yeshwanthapura hobli. He has four sons namely Dodda Kempaiah, Chikkakempaiah, Mallaiah and Mylarappa. After his death, his four sons who succeeded to the said property entered into oral panchayathi partition. As per the oral partition, the plaintiff- Mylarappa was allotted property bearing Sy.No.153 measuring 2 acre 30 guntas. Thereafter he got mutated the revenue records in his name.
Further case of the plaintiff is that, on 10.06.1983, he executed a sale agreement in favour of the defendant No.1 in respect of the suit schedule property but not delivered physical possession. Since the defendant No.1 4 O.S.No.1066/2013 did not come forward to get the sale deed executed and registered in time, the plaintiff kept silent. In the year 2012, daughter of plaintiff- Smt.Munilakshmamma @ Lakshmamma has filed a partition suit in O.S.No.5340/2012 before the City Civil Court against plaintiff and defendant No.2. In the said case, defendant No.2 appeared and filed written statement, contending that the plaintiff has executed a sale agreement dated 10.06.1983 in favour of defendant No.1 on 24.09.2006, thereafter the defendant No.1, who is her husband, has executed a sale deed in her favour.
Further case of the plaintiff is that, immediate thereafter he obtained certified copy of sale deed on 07.11.2012 wherein the recitals shows on the basis of the sale agreement, the defendant No.1 has executed the sale deed in favour of the defendant No.2. The defendant No.1 does not derive any right, title or interest over the suit schedule property only on the basis of sale agreement. The defendant No.1 has no right to alienate the suit schedule property in favour of the defendant No.2. In order to knock off the suit schedule property colluding with each other, the defendants have created false documents. The suit schedule property worth about 5 O.S.No.1066/2013 Rs.60 lakhs. In this regard, plaintiff has approached the jurisdiction police but went in vain. Thereafter when the plaintiff questioned the illegal act of the defendants in the month of December 2012, the defendants threated the plaintiff with dire consequences.
Specific case of plaintiff is that, the sale deed executed by defendant No.1 in favour of defendant No.2 is without any right and title, hence it is void transaction, as such it is liable to be set aside. Therefore, the plaintiff has been constrained to file this suit.
3. On receipt of summons, defendants appeared through advocate and filed written statement, contending that the plaintiff has executed the sale agreement in favour of defendant No.1 on 10.06.1983 and also delivered the possession of property along with affidavit and power of attorney, stating that as there was a Fragmentation Act in force, the sale deed cannot be executed. Since then the defendant No.1 was in continuous possession and enjoyment of the suit schedule property by obtaining khatha in his name till execution of sale deed in favour of defendant No.2.
Specific contention of the defendants is that even after repealing of the said enactments in the year 1994, 6 O.S.No.1066/2013 the plaintiff not cancelled the sale agreement, affidavit and power of attorney. Therefore the possession of the defendant No.1 is adverse to the interest of the plaintiff as the defendant No.1 is in continuous possession of the property for more than 12 years.
Further contention of defendants is that, the suit bearing O.S.No.5340/2012 filed by the daughter of the plaintiff for partition and separate possession is a collusive suit filed at the behest of plaintiff. Further contention of defendants is that, the plaintiff has undervalued the suit; suit is barred by law of limitation, hence liable to be dismissed.
4. On the basis of the above pleadings, following issues and addl. Issue were framed:-
ISSUES
1) Whether the plaintiff proves that he is owner of suit property?
2) Whether the plaintiff proves that agreement of sale dated 10.06.1983 is null and void and not executable?
3) Whether the plaintiff proves that the defendant No.2 is in illegal possession of suit property?
4) Whether defendants prove that defendant No.1 had become owner of suit property by adverse possession?
5) Whether the plaintiff proves that sale deed dated 26.09.2006 is not binding on him? 7 O.S.No.1066/2013
6) Whether the plaintiff is entitled for possession of suit property?
7) Whether plaintiff is entitled for damages?
8) What decree or order?
ADDITIONAL ISSUE
1) Whether suit is in time?
5. In order to prove the case, GPA holder of original plaintiff examined as P.W.1 and GPA holder of plaintiff No.
(a) examined as P.W.2 and got the documents marked as per Ex.P.1 to Ex.P.9. Thereafter defendant No.1 examined himself as D.W.1 and got the documents marked as per Ex.D.1 to Ex.D.41.
6. Heard and read the written arguments and principles laid down in the judgments relied upon by both counsels. Perused the oral and documentary evidence on record.
7. My findings on the above issues and addl. Issue are as follows:-
Issue No.1: In the negative;
Issue No.2: In the negative;
Issue No.3: In the negative;
Issue No.4: In the affirmative; Issue No.5: In the negative;8 O.S.No.1066/2013
Issue No.6:In the negative;
Issue No.7: In the negative;
Addl. Issue No.1: In the negative; Issue No.8: As per final order, for the following:-
REASONS
8. ISSUE No.1:- During the course of arguments, learned plaintiff's counsel has contended that, the suit schedule site was originally part and parcel of land bearing Sy.No.153 of Laggere Village measuring 12 acre 14 guntas including 0.26 guntas kharab; since the deceased plaintiff had formed several sites in the said land, suit site was one of the such sites. Learned plaintiff's counsel further contended that, plaintiff had agreed to sell the suit site in favour of defendant No.1 for valuable consideration of Rs.6,000/- on 10.06.1986, after receiving Rs.5,900/- had executed the sale agreement with mutual understanding that, the absolute sale deed will be executed after lifting of ban imposed on registration of agricultural sites under Fragmentation Laws. Learned plaintiff's counsel further contended that, execution of sale agreement does not amount to execution of sale deed and as long as sale deed is not executed, title vests with the vendor. Learned plaintiff's 9 O.S.No.1066/2013 counsel further contended that, since the defendant No.1 had executed sale deed in favour of defendant No.2, only on the basis of sale agreement, the said sale is a void, hence it does not affect the title of deceased plaintiff, as such the deceased plaintiff was the absolute owner of suit site as on the date of suit. In support of this contention, plaintiff's counsel relied upon the judgment reported in AIR 2002 ANDRA PRADESH 34.
9. On the other hand, contention of the defence counsel is that, no doubt the deceased plaintiff was owner of the suit site, he agreed to sell the suit site to the defendant No.1 for valuable consideration of Rs.6,000/-; but as there was ban on registration of fragmented revenue sites, it was not possible for the deceased plaintiff to execute the registered sale deed. Learned defence counsel further contended that, there was a practice for sale of such sites through sale agreement, affidavit and GPA coupled with delivery of possession of property. It was therefore deceased plaintiff had agreed to execute the registered sale agreement, affidavit and GPA. Hence the deceased plaintiff after taking full sale consideration amount had executed registered sale agreement, affidavit in favour of defendant No.1 on 10 O.S.No.1066/2013 10.06.1983 and GPA on 16.06.1983 and handed over the vacant possession of suit site to the defendant No.1.
10. Learned defence counsel further contended that, on the basis of these documents, defendant No.1 got the khatha transferred into his name in the year 1984-85 and thereafter constructed a house in it and finally on 26.09.2006 had executed absolute sale deed in favour of his wife defendant No.2. Therefore it is obvious that as on the date of suit, deceased plaintiff was not the legal owner of the suit site.
11. I have carefully examined the rival contentions urged by both counsels. It is not in dispute that, the sale agreement does not convey title to the vendee as held by the Andra Pradesh High Court in its judgment reported in AIR 2002 AP 34 relied upon by the plaintiff's counsel, but in my considered opinion, this view is not applicable to the case on hand, simply because, the case on hand has to be adjudicated with reference to the GPA stated to have been executed by the deceased plaintiff along with sale agreement and affidavit.
12. According to the deceased plaintiff, he had executed registered sale agreement only, but according to the defendants, deceased plaintiff had executed sale 11 O.S.No.1066/2013 agreement, affidavit on 10.06.1983 and GPA on 16.06.1983. Sale agreement is marked as Ex.P.2 whereas GPA and affidavit are marked as Ex.D.3 & Ex.D.4. Under the circumstances, question arises whether the deceased plaintiff is able to prove that he had executed registered sale agreement only, but not GPA and affidavit as contended by the defendants.
13. After careful examination of registered sale agreement marked at Ex.P.2, it is obvious that the deceased plaintiff had signed the said document by putting his thumb impression. Similar perusal of GPA marked at Ex.D.3 makes it clear that it is original registered GPA. This document also contains thumb impression of executant, who according to the defendants is none other than the deceased plaintiff. Under the circumstances, deceased plaintiff ought to have denied that the thumb impression appearing on GPA is not his thumb impression. It is matter of record that though deceased plaintiff was very much capable to appear before the Court and give evidence, he not appeared, rather he gave GPA authorising his grand-son i.e., P.W.1 to defend him in the case. It is significant to note that, in the said GPA, deceased plaintiff not 12 O.S.No.1066/2013 authorised the P.W.1 to give evidence. Inspite of it P.W.1 entered into witness box. During the course of cross- examination, P.W.1 has clearly admitted that he born on 05.03.1983 where as suit sale agreement transaction took place on 10.06.1983, therefore it is obvious that as on the date of sale agreement transaction, P.W.1 was hardly a 3 month old child. P.W.1 further admitted that whatever he deposed in the case was on the basis of information furnished by the deceased plaintiff. It is not an out of place to make a mention that as on the date of P.W.1's evidence and cross-examination, deceased plaintiff was alive. Under the circumstances, question arises whether P.W.1 is competent to give evidence in respect of suit transaction took place in the year 1983, when he was 3 month old child and whether his evidence is acceptable?
14. In order to answer this question, it is necessary to refer the Supreme Court judgment reported in AIR 2005 SC 439 in case of Janki Vashdeo Bhojwani & another v/s Indusind Bank Ltd. & others, in which Hon'ble Supreme Court has held that-
"Order III Rule 1 & 2 of CPC, holder of power of attorney to 'act' on behalf of the principal, if power of attorney holder 13 O.S.No.1066/2013 rendered some 'acts' in pursuance to power of attorney, he may depose for principal in respect of such acts, but cannot depose for principal in respect of matter, which principal can only have personal knowledge and in respect of which principal entitled to be cross-examined.
The word 'acts' used in Rule 2 of Order 3 doesn't include the act of power of attorney holder to appear as a witness on behalf of a party, he can appear only as witness in his personal capacity but cannot appear as a witness on behalf of the party in the capacity of that party.
Power of attorney- holder- Power to depose- Power of Attorney- holder cannot depose in place and instead of principal".
In view of the principles laid down by the Hon'ble Supreme Court in the above referred judgment, it is quite obvious that the P.W.1 since not rendered any acts in the suit transaction, therefore he is incompetent to give evidence in place of deceased plaintiff. Similarly P.W.2 is also not competent to give evidence being GPA holder of LR No.(a) of deceased plaintiff. In this view of the matter, plaintiff's case is nothing but without evidence. Keeping in view of this what I am of the opinion is that, deceased plaintiff failed to prove that he has executed only 14 O.S.No.1066/2013 registered sale agreement but not registered GPA as per Ex.D.3. At this stage, it is significant to mention that since the GPA marked at Ex.D.3 is a registered document, which contains thumb impression of executant deceased plaintiff and the deceased plaintiff admittedly putting the thumb impression, it can be presumed that deceased plaintiff had executed the registered GPA as per Ex.D.3, in support of registered sale agreement.
15. This being so, now the question that arise for my consideration is what is the impact of GPA on the title of the deceased plaintiff over the suit site. No doubt the registered sale agreement marked at Ex.P.2 is a sale agreement, but the deceased plaintiff has executed the said agreement with all knowledge that he completely selling the property for valuable consideration of Rs.6,000/-, that too after receipt of Rs.5,900/-. On 10.06.1983, deceased plaintiff was well within the knowledge that due to ban imposed by the Government, he cannot execute the registered sale deed. It was therefore few days after execution of sale agreement, deceased plaintiff had executed registered GPA on 16.06.1983 in favour of defendant No.1 after receipt of balance sale consideration amount of Rs.100/-. It is 15 O.S.No.1066/2013 pertinent to note that, though there is a recital in sale agreement that the possession of the property is not delivered, in GPA there is a clear mention of delivery of possession of site to the defendant No.1. It appears that though physical possession of property was delivered, due to ban on registration of sale agreements coupled with delivery of possession, parties not mentioned the aspect of delivery of possession in the sale agreement.
16. After careful examination of khatha record and tax paid receipts produced by defendants, it is obvious that immediate after the execution of sale agreement and GPA, defendant No.1 got changed the khatha in his name which has not been challenged by the plaintiff before competent forum within time. It is also matter of record that, defendant No.1 thereafter got constructed the house on the suit site which was not prevented by the deceased plaintiff. Apart from these things, the important point that is liable to be taken note of is the sale deed executed by the defendant No.1 in favour of his wife i.e., defendant No.2. On perusal of Ex.P.3, it is obvious that, defendant No.1 had executed sale deed in favour of defendant No.2 on 26.09.2006. Of course, as contended by the plaintiff's counsel, the defendant No.1 executed 16 O.S.No.1066/2013 the sale deed as if he is a title holder but not as a GPA holder of deceased plaintiff. It is not an out of place to mention that, because of this lapse only the deceased plaintiff approached the Court to take its benefit.
17. It is well settled principle of law that, Court shall decide the cases on actual facts but not on the legal technicalities. Having after minute examination of entire materials on record and settled position of law, I am of the clear opinion that the deceased plaintiff had executed the sale agreement, affidavit as if conventional sale deed and also GPA in support of the sale transaction authorising the defendant No.1 to deal with the property in any manner as he likes. It is pertinent to note that, on the basis of these documents, defendant No.1 got the khatha transferred in his name in respect of the suit site. It is also matter of record that the deceased plaintiff had formed more than 40 sites in the land and sold to the different persons, because of this not a single site is standing in the name of deceased plaintiff. Inspite of the fact that the land was converted into revenue site and sold, record of rights continued as if it is an agricultural land, therefore no much importance can be attached to the revenue records. When deceased plaintiff had sold 17 O.S.No.1066/2013 the site after receipt of full consideration amount of Rs.6,000/- through sale agreement, affidavit and GPA and handed over the possession of site to the defendant No.1 as a part performance of contract, when defendant No.1 got the khatha registered in his name, paid the taxes it goes without saying that the deceased plaintiff gave up his right, title and interest in the property in favour of defendant No.1 by his conduct. It is therefore needless to state that as on the date of suit, deceased plaintiff not the actual owner of the suit site.
18. Assume for the sake of the argument that the deceased plaintiff was the owner of the property, since he failed to exercise his proprietary rights over the property as against the defendant No.1 immediate after transfer of khatha in his name, defendant No.1 acquired the title to the property by way of adverse possession. On this count also, deceased plaintiff cannot be held to be actual owner of the suit site as on the date of the suit. It is therefore I am of the opinion that even though there is absence of reference about the GPA in the sale deed executed by the defendant No.1 in favour of defendant No.2, it doesn't affect right of defendant No.1 to execute the sale deed by virtue of acquisition of title to the 18 O.S.No.1066/2013 property by way of adverse possession. Keeping in view of the all these reasons, I am of the opinion that deceased plaintiff not the owner of suit site as on the date of suit, hence issue No.1 under discussion is answered in negative.
19. ISSUE No.2:- During the course of argument, learned plaintiff's counsel contended that, the deceased plaintiff had executed registered sale agreement in favour of the defendant No.1 on 10.06.1983 with an understanding that the sale deed will be executed after removal of ban on registration of revenue sites but the defendant No.1 after removal of ban had not come forward to get the sale deed executed, therefore sale agreement become null and void.
20. On the other hand, contention of the defence counsel is that, though defendant No.1 had asked the deceased plaintiff for several times to execute the registered sale deed after removal of ban in 1994, he failed to execute it, therefore sale agreement doesn't become void agreement.
21. I have carefully examined the entire materials on record. It is not an out of place to make a mention that, the agreements which are contrary to the provisions 19 O.S.No.1066/2013 of Sections 10 & 23 to 30 of Contract Act, 1872 can be declared as null and void agreements. Simply because either party to the agreement failed to perform their part of contract, agreement cannot be concluded as null and void agreement, it is so because the aggrieved party can file suit for specific performance of contract. Here in the case on hand, deceased plaintiff had expressly undertaken to execute the registered sale deed after removal of ban on registration on revenue sites. According to admitted facts, ban on registration of revenue sites were removed in the year 1994, if that is so, nothing prevented the deceased plaintiff to call upon the defendant No.1 to get the sale deed registered. Deceased plaintiff not done it because nothing was there for him to receive from the defendant No.1 as because by the end of 16.06.1983, he had received entire sale consideration amount. Defendant No.1 not came forward to get the sale deed registered because of delivery of possession of site and transfer of khatha entries in his name. It is further pertinent to note that the deceased plaintiff even not issued notice to the defendant No.1 cancelling the sale agreement nor filed any suit in this regard. Under the circumstances, where is the question of 20 O.S.No.1066/2013 stating that the sale agreement becomes null and void, simply for the reason that the defendant No.1 failed to get the sale deed registered, hence issue No.2 under discussion is answered in negative.
22. ISSUE NO.3:- During the course of arguments, learned plaintiff's counsel has contended that, the deceased plaintiff never handed over the possession of suit site to the defendant No.1; defendant No.1 has taken the possession of the property without the knowledge of the deceased plaintiff and only on the basis of sale agreement has executed bogus sale deed in the name of defendant No.2 and nominally shown to have delivered the possession of site to her; the sale deed executed by defendant No.1 in favour of defendant No.2 is without any valid title, hence it does not convey better title to the defendant No.2, consequently possession also, as such possession of defendant No.2 over the suit site is prima- facie illegal.
23. On the other hand, contention of the defence counsel is that, it was the deceased plaintiff who had handed over the possession of the suit site to the defendant No.1 under registered sale agreement, GPA and affidavit; thereafter defendant No.1 has constructed 21 O.S.No.1066/2013 the house in it and also paid property taxes, electricity and water charges and finally on 26.09.2006, defendant No.1 has executed sale deed in favour of defendant No.2, who is none other than the wife of defendant No.1; it is thus both defendant No.1 & 2 are in the legal possession and enjoyment of suit site; therefore possession of defendant No.2 over the suit site cannot be said to be illegal.
24. I see much force in the contention of defence counsel. No doubt registered sale agreement does not speak about the delivery of possession of suit site to the defendant No.1, nevertheless registered GPA speaks about it. In GPA, it has been specifically mentioned that, the possession of site is delivered to the purchaser. This document further gives an indication that, though in sale agreement, there is mention of non-delivery of possession, but of the record, defendant No.1 was put in the possession of property. If at all possession of the property was not delivered by the deceased plaintiff to the defendant No.1, then question arises how the defendant No.1 come into the possession of property. In the absence of specific plea of taking of the possession of property by the defendant No.1 forcibly, it can be 22 O.S.No.1066/2013 presumed that, the deceased plaintiff himself has delivered the actual possession of property either on 10.06.1983 i.e., on the date of sale agreement or on 16.06.1983 i.e., on the date of execution of GPA.
25. It is not an out of place to mention that, there is strong material on record to draw such a presumption, because deceased plaintiff has not taken any plea of forcible dispossession by defendant No.1 nor he filed any police complaint or suit to protect his possession over the property from the defendant No.1's interference. Under these circumstances, the only option left with the Court is to believe the version of defendants that, the deceased plaintiff had handed over the physical possession of suit site to the defendant No.1 as on the date of sale agreement/GPA.
26. This being so, the defendant No.2 being the wife of defendant No.1, naturally will come in the possession of property. Apart from that, sale deed executed by defendant No.1 in favour of defendant No.2 speaks about the delivery of possession to her. On this count also, her possession over the suit site bound to be held legal. Hence, I am of the opinion that the plaintiff failed to prove the possession of defendant No.2 over the suit 23 O.S.No.1066/2013 property is illegal one, as such issue No.3 under discussion is answered in negative.
27. ISSUE No.4 & 6 and ADDL. ISSUE No.1:-
These issues are taken up together for discussion as they are interlinked to each other to avoid repetition.
28. During the course of argument, learned defence counsel has contended that, by virtue of the registered sale agreement and GPA executed by the deceased plaintiff and delivery of possession of site to the defendant No.1, defendant No.1 got the khatha records changed in his name with the knowledge to the deceased plaintiff, thereafter got constructed a house, got electricity and water connection and also paid upto date property taxes. All these things were well within the knowledge of deceased plaintiff as well as public. Defendant No.1 had done all these acts not only in utter denial of deceased plaintiff's title but also asserting his title over the property. In this way, defendant No.1 has perfected his title to the property by way of adverse possession.
29. On the other hand, contention of plaintiff's counsel is that, except execution of registered sale agreement, deceased plaintiff neither executed GPA nor 24 O.S.No.1066/2013 handed over actual possession of suit site to the defendant No.1. It is only after filing of written statement in a partition suit bearing O.S.No.5340/2012 filed by his daughter, deceased plaintiff came to know about the illegal possession and documents of defendant No.1 over the suit property. Immediate thereafter deceased plaintiff obtained certified copy of sale deed in favour of defendant No.2 and came to know about the fraud played by defendant No.1 by executing sale deed in favour of defendant No.2 without valid sale deed executed by the deceased plaintiff and immediate thereafter present suit is came to be filed. These things shows that the deceased plaintiff had initiated action for the recovery of possession of property withing 12 years, hence question of defendant No.1 perfecting the title by way of adverse possession does not arise at all.
30. I see no much force in the contention of plaintiff's counsel. It is well settled principle of law that, the plaintiff, who comes to the Court for recovery of possession, must proves that, his suit is well within the 12 years period of limitation, failing which it amounts to perfection of title by the defendants by way of adverse possession. Hence, now the question is, what constitutes 25 O.S.No.1066/2013 the 'adverse possession'. There is no specific definition, either in property law or Limitation Act, to show what constitutes the adverse possession. But, according to the position of law laid down by the Hon'ble Apex Court, "the possession of a person over any property in denial of right, title and interest of true owner of property for a period of more than 12 years continuously, without any interruption of whatsoever, but to the knowledge of true owner, constitutes the adverse possession".
It is also concept of law that, even a permissive possession will become hostile from the day of denial of title of true owner.
Keeping this in mind, it is necessary to analyze the materials on record to know, when the defendant No.1's possession becomes adverse to the deceased plaintiff.
31. It is not in dispute that, sale agreement does not speak about the delivery of possession of site. However, GPA speaks about the delivery of possession of property. Apart from that, the factual aspects of the case makes it clear that, it is the defendants who are in the actual possession of suit property as on the date of suit. In the absence of specific plea of taking of possession of site by the defendants forcibly, it has to be proved that, the 26 O.S.No.1066/2013 deceased plaintiff has delivered the possession of suit site to the defendant No.1 on 16.06.1983 under GPA. Therefore, it amounts to permissive possession. Now the question arises when this permissive possession becomes adverse to the deceased plaintiff. In order to find out answer to this question, we have to examine the documents produced by the defendants.
32. GPA produced by the defendant No.1 makes it clear that, possession of property was delivered to defendant No.1 on 16.06.1983. This possession seems to be the permissive possession. Khatha extract marked at Ex.D.5 shows that, khatha of the property was registered in the name of defendant No.1 in the year 1985-86. Encumbrance certificate marked at Ex.D.8 & Ex.D.9 makes it clear that, right from 01.04.1982 to 31.03.2004 and 01.04.2006 to 26.09.2006, property was standing in the name of defendant No.1 as because it was transferred in his name for sale consideration of Rs.6,000/-. Ex.D.17 makes it clear that, Secretary, Gram Panchayath, Peenya, Bengaluru has issued NOC to jurisdiction KEB authorities for giving electricity connection to the defendant No.1's house. Tax paid receipts marked at Ex.D.3 to 5, 9, 10, 12 to 14 and 17 27 O.S.No.1066/2013 makes it clear that, the defendant No.1 & 2 have paid property taxes right from 14.02.1987 till the date of suit and thereafter also.
33. That apart, documents marked at Ex.D.23 to Ex.D.25 shows the water supply to the house of defendants in the year 2015. Ex.D.26 shows the payment of electricity bill in the year 2018. All these documents show that the suit site was registered in the name of defendant No.1 in the year 1985-86. Under the circumstances, it is needless to state that, the possession of the defendant No.1 becomes adverse to the deceased plaintiff in the year 1985-86, that too with his knowledge. It is so because, when house was built up by the defendants in the suit site, it cannot be stated that it was without his knowledge. The deceased plaintiff inspite of knowing about all these developments, neither challenged the transfer of khatha records in the name of defendant No.1 nor prevented him from construction of house building. The story narrated by the deceased plaintiff that, he came to know about the illegal possession of defendants and khatha entries only in the year 2012, when the defendant No.2 had filed written statement in the partition suit bearing O.S.No.5340/2012 28 O.S.No.1066/2013 filed by his daughter is not fit to be acceptable. In my opinion, the cause of action shown by the deceased plaintiff is nothing but imaginary cause of action created only for the purpose of filing of the present suit.
34. Having after minute examination of entire materials on record, I am of the opinion that, the defendant No.1 has successfully proved that he has been in the possession of suit property for more than 12 years from the year 1985-86 in denial of deceased plaintiff's title with his full knowledge, without any interruption of whatsoever from anybody much less the deceased plaintiff and thereby perfected his title to the property by way of adverse possession, even though he has purchased the property under sale agreement, GPA and affidavit after paying of full consideration amount of Rs.6,000/-.
35. At the same time, I am of the opinion that the plaintiff failed to prove that the suit is filed within the period of 12 years from the date of dispossession or adverse possession and therefore plaintiff not entitled for the possession of suit property. It is therefore issue No.4 under discussion is answered in the affirmative and issue No.6 & addl. Issue No.1 in negative.
29 O.S.No.1066/2013
36. ISSUE No.5 & 7:- As these issues are interlinked to each other, they are taken up together for discussion to avoid repetition.
37. While dealing with issue No.1 to 4 & 6, it has been specifically held that the deceased plaintiff himself has delivered the possession of site to the defendant No.1 in the year 1983 and thereafter defendant No.1 got the khatha changed in his name in the year 1985-86 and from there onwards his possession becomes adverse to the deceased plaintiff and as the deceased plaintiff failed to file the suit to recover the possession of vacant site within 12 years from 1985-86, that is to say before 1998- 99, the defendant No.1 has perfected the title to the suit site by way of adverse possession, as such sale deed executed by defendant No.1 in favour of defendant No.2 is legal. This being so, the sale deed executed by defendant No.1 in favour of defendant No.2 on 26.09.2006 even without referring to the GPA and without valid sale deed in his name is binding upon the deceased plaintiff and the possession of defendant No.1 & 2 over the suit schedule property is not illegal one and therefore deceased plaintiff is not entitled for the damages, as such issue No.5 & 7 are answered in negative.
30 O.S.No.1066/2013
38. ISSUE No.8:- For the reasons stated above, I proceed to pass the following:-
ORDER Suit of the deceased plaintiff is dismissed.
No costs awarded.
Draw decree accordingly.
(Dictated to the Judgment Writer, directly on Computer, printout taken, corrected and then pronounced in the Open Court on this the 27 th day of January, 2021).
(MARUTHI S. BAGADE) X Addl. City Civil & Sessions Judge, Bangalore.
ANNEXURE List of witnesses examined for the plaintiff:
PW.1 : K. Babu PW.2 : M.A. Mallikarjuna
List of documents exhibited for plaintiff:
Ex.P1 : General power of attorney Ex.P2 : Certified copy of agreement dt:10.6.1983 Ex.P3 : C/copy of sale deed dt:26.9.2006 Ex.P4 : RTC for the year 2012-13 Ex.P5 : C/c of the mutation Ex.P6 : RTC of land in Sy.No.153 Ex.P7 : GPA Ex.P8 : C/c of W.S. in OS No.5340/2012 Ex.P9 : C/c of order sheet in OS 2340/2012 List of witnesses examined for defendants:-
D.W1 : G.N. Bommaiah 31 O.S.No.1066/2013 List of documents exhibited for defendants:- Ex.D1 : GPA Ex.D2 : NOC Ex.D3 to 5: 3 tax paid receipts Ex.D6 to 8 : 3 self assessment & tax paid receipts Ex.D9 & 10: 2 tax particulars Ex.D11 : Sale deed dt:26.09.2006 Ex.D12 to 14: 3 tax pad receipts Ex.D15 : Khatha certificate Ex.D16 : GPA Ex.D.17 : NOC Ex.D18 to 20: 3 tax paid receipts Ex.D21 to 23: 3 Self assessment & tax paid receipts Ex.D.24, 25: 2 tax particulars Ex.D26 : Sale deed dt:26.09.2006 Ex.D27 to 29: 3 tax paid receipts Ex.D30 : Khatha certificate Ex.D31 : Acknowledgement Ex.D32 : Tax paid receipt Ex.D33 to 37: 5 acknowledgements Ex.D38: Water connection from BWSSB Ex.D39: Receipt from BWSSB Ex.D40: Water meter receipt Ex.D41: Water bill X Addl. City Civil & Sessions Judge, Bangalore.