Bangalore District Court
Mr.Havinal Prashanth vs Mrs. H.N.Susheelamma on 29 November, 2022
IN THE COURT OF XXVI ADDL. CITY CIVIL & SESSIONS
JUDGE AT MAYO HALL BENGALURU, (CCH-20)
Present:
Smt.Yermal Kalpana., B.Sc., LL.M.,
XXVI Addl. City Civil & Sessions Judge, Bengaluru
Dated this the 29 th day of November, 2022
O.S.No.25370/2008
Plaintiff:- Mr.Havinal Prashanth
Hindu, Aged about 36 years,
S/o. Havinal Karibasappa,
Resident of No.16, Comfort Enclave,
Apartment No.213, Ganganagar,
Bangalore - 560 032.
[By J.P.Associates-Adv]
Vs.
Defendant:- Mrs. H.N.Susheelamma
Hindu, Aged about 52 years,
W/o. Mr.H.S.Vijayakumar,
Resident of No.27, MICO Layout,
West of Chord Road,
Bangalore - 560 086.
[By Sri.B.S.S-Adv.]
Plaintiff :-
2 O.S.25370/2008
Date of Institution of suit: 25.02.2008
Nature of the Suit (Suit for Pronote, Declaration,
Suit for Declaration and Possession, possession and
Suit for Injunction, etc.): Injunction
Date of Commencement of 19.11.2012
recording of evidence:
Date on which the Judgment was 29.11.2022
pronounced:
Total Duration:
Years Months Days
14 09 04
(YERMAL KALPANA)
XXVI Addl. City Civil Judge, Mayo Hall,
BENGALURU.Plaintiff :-
3
OS No. 25370/2008
JUDGMENT
The plaintiff has filed this suit seeking for the relief of declaration to declare him as the absolute owner of the suit schedule property and for permanent injunction restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property or from trespassing or dispossessing the plaintiff from the suit schedule property. The plaintiff has also sought for the decree of declaration to declare that the Ex-parte Judgment and Decree dated 25.09.2007 passed in OS No.8785/2003 by the XXII Add. City Civil Judge, Bengaluru is not enforceable against the plaintiff.
2. The plaintiff after amending the suit has sought for further relief seeking for an order to grant possession of the suit schedule property and deliver the property to the 4 OS No.25370/2008 plaintiff within the time stipulated by this Court, failing which, an order to be passed to issue delivery warrant at the cost of the defendant and put the plaintiff in possession of the suit schedule property. The plaintiff has also sought to direct the plaintiff to pay mesne profits at the rate of Rs.15,000/- per month from the date of delivery of the possession and to award cost and for grant of such other reliefs.
3. The plaint averments in brief is that the suit schedule property is a residential site bearing House list No.11 situated at Chikkabommasandra, Yelahanka Hobli, Bengaluru North Taluk, which was originally owned and possessed by Mr.M.Nanjundappa who had formed several sites and had sold the schedule property to Smt. Jayanthi Kulkarni under a Sale deed dated 10.07.1971. Subsequent to the purchase of the schedule property, Smt. Jayanthi 5 OS No.25370/2008 Kulkarni was in possession of the property by exercising all rights and her name was recorded as the Kathedar. Later Mrs. Jayanthi Kulkarni represented by her General Power of Attorney holder Sri. N.V. Nagesh sold the schedule property to one Mr.Prachit R Murthy under a Sale deed dated 07.03.2001 and he was put in possession of the suit schedule property and the revenue records reflects his name. Mr.Prachit R Murthy sold the schedule property through his attorney holder to the plaintiff under a Sale Deed dated 23.07.2004.
The plaintiff further submits the pursuant to the execution of the Sale deed in his favour, he was put in possession and enjoyment of the suit schedule property and he has been exercising his rights of ownership to the exclusion of all others. The plaintiff has paid a sum of Rs.23,760/- to the Yelahanka Town Municipality towards 6 OS No.25370/2008 the betterment charges vide Bankers Cheque dated 29.09.2006 in No.023982 drawn on State Bank of Mysore, Yalahanka Branch, Bengaluru. The plaintiff's name has been recorded as kathedar in the revenue records and he has been paying property taxes and the encumbrance certificate also shows the flow of title in favour of the plaintiff.
The plaintiff further submits that the suit schedule property was earlier situated within the revenue pocket, but has subsequently merged under the administrative jurisdiction of the BBMP and hence the schedule property has acquired high market potentiality and hence the defendant though has no manner of right title or interest, has started to interfere with the plaintiff's peaceful possession and enjoyment. Recently the plaintiff had entrusted the removal of debris and construction of a 7 OS No.25370/2008 watchman shed in the schedule property and had entrusted the work to a Civil contractor and the plaintiff has also paid the advance amount to the contractor; but the defendant along with some undesirable elements started interfering by claiming that she has documents to show her claim over the suit schedule property; but she did not produce those documents and obstructed the progress of the construction work, for which the plaintiff had approached the police station to lodge the complaint against the defendant, but the police did not entertain the complaint, instead the police entertained the defendant's complaint. The defendant had obtained an order of injunction from the City Civil Court in OS No.8785/2003 filed against Sri.Prachit R Murthy the vendor of the plaintiff vide ex-parte Judgment dated 25.09.2007. The defendant claims to have obtained the property through an 8 OS No.25370/2008 unregistered power of attorney from Mr.M.Nanjundappa in the year 1986 and based on the power of attorney and affidavit the defendant has been claiming title to the suit schedule property, though she has no registered documents or title deeds to establish a better title than that of the plaintiff.
4. Subsequent to the amendment, the plaintiff has contended that after filing of the suit, the defendant having entered appearance with the help of local police has dispossessed the plaintiff from the suit schedule property in January 2010 on the basis of the ex-parte order of injunction in OS No.8785/2003 and hence the plaintiff has lost possession of the suit schedule property. The plaintiff has business interest at Bellary and was concentrating on his business, the plaintiff had appointed a watchman as the caretaker and the photograph 9 OS No.25370/2008 produced along with the plaint depicts the plaintiff standing in front of the watchman shed and the construction of the compound being in progress. When the plaintiff visited the suit schedule property during January 2010, he was shocked to find the watchman missing and the defendant had taken illegal possession of the schedule property by dispossessing the plaintiff, without any manner of right, title or interest and hence though the plaintiff had filed the suit for declaration of title, in view of the dispossession of the plaintiff, the plaintiff was constrained to seek further relief of possession of the schedule property from the defendant who is in illegal and unlawful possession and the plaintiff has a subsisting right title and interest over the suit schedule property. The plaintiff came to know during January 2010, about the dispossession and the defendant is in unlawful possession 10 OS No.25370/2008 of the suit schedule property since 2010. The suit schedule property is situated in a prime residential area and the defendant has to pay mesne profits from January 2010 at the rate of 15,000/- per month till the date of delivery of possession. The defendant has obtained an ex- parte order of injunction in OS No.8785/2003 against the vendor of the plaintiff and the said Judgment and Decree is not an enforceable decree against the plaintiff. The defendant by misusing the process of Court has obtained the Judgment and Decree. The cause of action for the suit arose on 17.02.2008 when the defendant along with some persons tried to interfere with the plaintiff's peaceful possession and enjoyment of the schedule property and obstructed the construction of the watchman shed and held out threats of the interference, trespass and 11 OS No.25370/2008 dispossession. Hence the plaintiff was constrained to file this suit.
5. In response to the suit summons, the defendant appeared and has filed her written statement denying the plaint averments and has contended that the suit is bad for non joinder of necessary and proper parties i.e., the legal heirs of M.Nanjundappa, Mrs. Jayanti Kulakarni and Mr.Prachith R Murthy are not made as parties in these suit. The suit is barred by law of limitation, the Court fee paid is insufficient. According to the defendant, she is the absolute owner of the suit schedule property since 23.04.1986 having purchased the same from M. Nanjundappa for valid consideration. In the year 2003, Prachit. R Murthy the alleged vendor of the plaintiff had tried to interfere with her peaceful enjoyment of the suit schedule property and she was compelled to file OS No.8785/2003, which was 12 OS No.25370/2008 decreed in her favour on 25.09.2007, hence, the Sale deed executed in favour of the plaintiff dated 23.07.2004 is illegal and hit by lis pendense and not binding on the defendant.
6. The defendant further submits that a watchman shed is already existence in the suit schedule property which had been constructed by the defendant. The plaintiff is a resident of USA and he was never in the possession of the suit schedule property. The police have also not entertained the complaint of the plaintiff, as they were satisfied with the ownership and possession of the defendant. The defendant is the lawful owner in possession of the property, since the date of purchase and in-fact, it is the plaintiff who has illegally interfered with the possession of the defendant and tried to demolish the shed partly on 17.12.2007, for which, the defendant gave a 13 OS No.25370/2008 police complaint on 18.12.2007 and on the basis of the complaint, a FIR has been filed against the plaintiff and the mahazar was also drawn by the police at the spot. Hence on these ground the defendant has prayed for dismissing the suit.
7. Subsequently after amendment of the plaint, the defendant has filed her additional written statement contending that the pleadings of the plaintiff in the amended plaint are contradictory in nature and one relief destroys other reliefs. It is also contended that the plaintiff has made a false claim that he was dispossessed in the year January 2010.
8. In support of the plaintiff's case, the plaintiff is examined himself as P.W.1 and examined one witness as PW.2 and got marked 55 documents as Exs.P.1 to Ex.P.55. 14
OS No.25370/2008 On behalf of the defendant, the defendant got examined herself as DW.1 and got marked Ex.D.1 to D.20.
9. Heard arguments and also perused the written arguments.
10. Perused the materials on record.
11. The following issues have been framed in the case:-
ISSUES
1) Whether plaintiff proves he is the absolute owner of the suit schedule property purchased on 23.03.2004?
2) Whether defendant proves that he is the absolute owner of the suit schedule property?
3) Whether plaintiff proves that he has been in possession of the suit schedule property?15
OS No.25370/2008
4) Whether plaintiff proves that the decree passed in O.S.8785/2003 in 22nd ACCJ is not binding on him?
5) Whether suit of the plaintiff is bad for non joinder of parties?
6). Whether suit of the plaintiff is barred by law of limitation?
7) Whether court fee paid on the plaint is proper and correct?
8) Whether the plaintiff is entitled for relief sought for?
9) What order or decree?
Additional Issues framed on 11.10.2021
1) Whether the plaintiff is entitled for mesne profits at the rate of Rs.15,000/- p.m.?
16
OS No.25370/2008 Additional Issues framed on 30.07.2022 after remand from the Hon'ble High Court of Karnataka in RFA No.1446/2014(DE/INJ) dtd. 30.06.2022
1) Whether plaintiff proves that he was in possession of the suit schedule property as on the date of the suit?
2) Whether the plaintiff proves that he is entitled for possession of the suit schedule property from the defendant, as he was dispossessed from the property on the basis of ex-parte order of injunction in OS No.8785/2003, during the pendency of suit in January 2010?
3). Whether the defendant proves that the suit is barred by law of limitation?
12. My findings on the above issues and addl. Issues are as follows:-
ISSUE No.1 :- In the affirmative 17 OS No.25370/2008 ISSUE No.2 :- In the negative ISSUE No.3 :- In the negative ISSUE No.4 :- Does not arise for consideration ISSUE No.5 :- In the negative ISSUE No.6 :- In the negative ISSUE No.7 :- In the affirmative ISSUE No.8 :- In the affirmative ADDL. ISSUE No.1 Dtd. 11.10.2021 :- In the negative ADDL. ISSUE No.1 Dtd. 30.07.2022 :- In the negative ADDL. ISSUE No.2 Dtd. 30.07.2022 :- Partly in the affirmative ADDL. ISSUE No.3 Dtd. 30.07.2022 :- In the negative ISSUE No.9 :- As per final order for the following 18 OS No.25370/2008 REASONS 13. Issue Nos.1, 2 and 3, Addl. Issue Nos.1 & 2
dtd.30.07.2022:- These issues are interrelated, hence they are taken up together for discussion.
The plaintiff has initially filed this suit, seeking for the relief to declare him as the absolute owner of the suit schedule property and subsequently by way of amendment, he has sought for possession of the suit schedule property on the ground that in the month of January 2010, he was dispossessed from the suit schedule property.
14. The defendant had challenged the judgment dtd. 20.08.2014 passed initially by this Court before the Hon'ble High Court of Karnataka in RFA No.1446/2014 (DEC/INJ). The Hon'ble High Court has remanded this case to this Court vide its judgment dtd. 30.06.2022, holding that the 19 OS No.25370/2008 evidence was not led on the amended pleadings with regard to the dispossession of the plaintiff from the suit schedule property and his possession as on the date of the filing of the suit.
15. After the suit was remanded, the plaintiff and the defendant led their further evidences, in addition to the previous evidences and also got additional documents marked. The plaintiff was examined as PW.1 and he has reiterated the plaint averments and has claimed his ownership on the basis of the absolute sale deed dtd. 23.07.2004 and about being dispossessed from the suit schedule property in the month of January 2010. PW.1 in support of his case has produced Ex.P.1 to P.55 documents. The plaintiff has also examined his friend Mr.Kiran as PW.2 and he has also supported the claim of the plaintiff. 20
OS No.25370/2008
16. The defendant has examined herself as DW.2 and she has also reiterated the contention taken up by her in her written statement and has deposed that she had purchased the suit schedule property in the year 1986 from the original owner Sri.M.Nanjundappa under an unregistered General Power of Attorney and affidavit dtd. 23.04.1986 and she has produced Ex.D.1 to D.20 documents in support of her contention.
17. The suit schedule property is described as follows:-
"All that piece and parcel of the Site No.11, Municipal Assessment Old Khata No.118/160/11, New Khata No.198/118/160/11, situated at Chikkabommasandra, Yelahanka Hobli, Bangalore North Taluk, formed within the jurisdiction of Yelahanka City Municipal Council, presently within the revenue administrative jurisdiction of the Bruhath Bangalore Mahanagara Palike, with a watchman shed of sold cement blocks, AC sheet and 21 OS No.25370/2008 including all rights, privileges and appurtenances thereto and measuring :-
East to West :- 40 feet
North to South :- 60 feet
and bounded as follows :-
East by :- Site No.10
West by :- Site No.12
North by :- Other property
South by :- Road"
18. Admittedly, the suit schedule property originally belonged to Mr.M.Nandjundappa and he had formed several sites in the suit schedule property. According to the plaintiff, one Mrs. Jayanthi Kulkarni had purchased the suit schedule property under a registered sale deed dated 10.07.1991 from N.Nanjundappa and through her Power of Attorney holder Sri. N.V. Nagesh she had sold the suit schedule property in favour of one Prachit R Murthy under Sale deed dated 07.03.2001. Later Prachit R Murthy sold 22 OS No.25370/2008 the suit schedule property through his PA holder to the plaintiff under a registered Sale deed dated 23.07.2004.
19. The plaintiff has sought for declaration of his title and also to declare that the ex-parte judgment and decree dated 25.09.2007 passed in OS No.8785/2003 on the file of 22nd ACC&SJ, Bengaluru is null and void and consequential relief of permanent injunction. Subsequently, by way of amendment, the plaintiff has also sought for vacant possession of the suit schedule property.
20. The first and foremost point to be considered that is to see under which documents both the parties have proved their rights over the the suit schedule property. The plaintiff is relying upon a registered Sale deed dated 23.07.2004 to claim his right and the defendant is relying upon two documents i.e., an unregistered General Power 23 OS No.25370/2008 of Attorney and an affidavit dtd.23.04.1986 to claim her right over the suit schedule property.
21. The plaintiff and the defendant are both asserting their right and title over the suit schedule property on the basis of their purchase from the original owner Sri.Nanjundappa. The plaintiff is the 3rd purchaser claiming his right under a Regd. Sale Deeds from Sri.Nanjundappa and Smt.Jayanthi Kulkarni to Prachit R Murthy and then the plaintiff. The defendant on the other hand claims her right through the unregistered General Power of Attorney and affidavit executed by M.Nanjundappa in her favour. The suit schedule property claimed by the plaintiff is the property claimed by the defendant are one and the same and there is no dispute about the identity of the property to that Sri.M.Nanjundappa was the original owner of the suit schedule property.24
OS No.25370/2008
22. The plaintiff has filed this suit to declare him as an absolute owner of the suit schedule property on the basis of the Sale deed executed in his favour by his vendor Prachit R Murthy. Ex.P.11 is the registered document. On the other hand, the defendant has claimed the right over the suit schedule property on the basis of the Ex.D.1 & D.3- unregistered General Power of Attorney and affidavit dtd. 23.04.1986. The plaintiff claims his title based on a registered Sale Deed whereas the defendant is claiming the title on the basis of the unregistered General Power of Attorney and affidavit.
23. Section 54 of the Transfer of Property Act provides that for transaction of ownership in exchange for a price, but such transfer of immovable property of value Rs.100/- or above can be made only by a registered instrument. However, a contract for sale of immovable 25 OS No.25370/2008 property is only a contract, but it does not create any interest or charge on such property, unless that deed is registered as required U/s 54 of the T.P.Act., and the requisite stamp duty is paid under Article 20 of the Karnataka Stamp Act and registered in accordance with Section 17 of the Indian Registration Act.
24. The Learned counsel for plaintiff has argued that only after the plaintiff was dispossessed from the suit schedule property in the month of January 2010, the defendant has taken possession of the property and all the documents produced by her, are only pertaining to the months after January 2010 which goes to show that the defendant was never in possession of the property and only claiming her interest over the same on the basis of an unregistered General Power of Attorney. 26
OS No.25370/2008
25. Admittedly, Sri.M.Nanjundappa is the original owner of the suit schedule property and he has executed the Sale deed Ex.P1 dated 10.07.1991 in favour of Smt. Jayanti Kulakarni. The defendant on the other hand, has also produced Exs.D1 and D2-the unregistered General Power of Attorney and the affidavit executed by M. Nanjundappa in favour of the defendant in the year 1986. Section 17 of the Indian Registration Act mandates that any property worth more that Rs.100/- has to be compulsory registered. According to the defendant, as there was a Fragmentation Act in force during the execution of the GPA and there was a bar on the sale of properties and hence she has purchased the suit schedule property under GPA, and her vendor has also executed an affidavit Ex.D2 in favour of the defendant asserting the fact 27 OS No.25370/2008 that the GPA has been executed by him. Admittedly, the GPA has not been registered.
26. The learned counsel for the defendant has argued that in the affidavit executed along with the GPA, Sri. M. Nanjundappa has clearly stated that he has executed the GPA in favour of the purchaser and he agrees and undertakes not to revoke the same at any circumstances. Further he has also agreed to execute the absolute Sale deed in favour of purchaser after the relaxation of the Fragmentation Act. The learned counsel for the defendant that further argued that, immediately after the Fragmentation Act was repealed Sri.M. Nanjundappa had immediately executed the Sale deed in favour of Smt. Jayanti Kulakarni without revoking the irrevocable GPA executed in favour of the defendant, which goes to show his intention in defrauding the defendant of 28 OS No.25370/2008 her right over the suit schedule property and also inspite of receiving the entire Sale consideration of amount of Rs.15,000/- from the defendant and inspite of his knowledge about the execution of the GPA-Ex.D1 and the affidavit Ex.D2 he has intentionally executed Ex.P1 in favour of Smt. Jayanti Kulakarni.
27. The defendant on the basis of Exs.D1 and D2 had filed an Injunction suit in OS No.8785/2003 against the vendor of the plaintiff which was decreed in favour of the defendant, as the vendor of the plaintiff ie., Prachit R Murthy, had failed to contest the said suit. The learned counsel for the defendant has argued that during the pendency of the said suit, Mr.Prachit R Murthy-the vendor of the plaintiff had sold the property to the plaintiff, which amounted to lis-pendence and the purchaser of the property i.e., the plaintiff had knowledge about the 29 OS No.25370/2008 pendency of the suit in OS No.8785/2003 inspite of the same, he had purchased the property which goes to show that only in order to defraud the defendant, the vendor of the plaintiff without appearing before the Court in OS No.8785/2003 nor by contesting the suit, had sold the property in favour of the present plaintiff.
28. The learned counsel for the plaintiff has also argued that the plaintiff has not made the original vendor M. Nanjundappa nor his legal heirs, as parties to this suit and that the plaintiff has also not made the subsequent purchasers that is Smt. Jayanthi Kulakarni and Sri.Prachit R Murthy as parties to this suit. Sri.M. Nanjundappa-the original and vendor had executed both the Sale deeds- Ex.P1 dated 10.07.1991 in favour of Smt. Jayanthi Kulakarni and he has also executed the GPA dated 23.04.1986 and the affidavit of the same date in favour of the defendant. 30
OS No.25370/2008 On perusal of Ex.D2, it can be seen that Sri. Nanjundappa had agreed to execute the absolute Sale deed in favour of the purchaser i.e., the defendant after relaxation of the Fragmentation Act. Though, there is a recital in Ex.D2, since from the year 1986, till date, the defendant had not taken any steps to get the Sale deed registered in her name. Admittedly she has filed a suit seeking permanent injunction, when her possession was threatened in the year 2003, by way of filing a suit in OS No.8785/2003, but even then, she had not taken any steps to get the deeds registered in her name.
29. The learned counsel for defendant has also argued that while filing the written statement of this suit on 27.02.2008, he had filed several documents, including the photographs of the suit schedule property which is marked as Ex.D16. It is argued by the counsel for the 31 OS No.25370/2008 defendant that, in the shed constructed in the schedule property, the defendant had put up a notice that she is the owner of the property as per the order of the Civil Court and inspite of having knowledge in the year 2008 that the property was in possession of the defendant, the plaintiff has filed his amended application in the year 2012 claiming that in the month of January 2010, he has lost possession of the suit schedule property, as the caretaker who was appointed to look after the property was missing and the defendant had taken illegal possession of the suit schedule property. Admittedly, the plaintiff had the knowledge about Ex.D16 filed by the defendant in the year 2008 itself, inspite of the same, only after a period of 4 years, he had approached the Court, seeking for relief for possession of the property.32
OS No.25370/2008
30. The plaintiff has contended that he is in possession and enjoyment of the suit schedule property and has been exercising all rights as on the date of filing of the suit. Admittedly the decree was passed in OS No.8785/2003 vide judgment and decree dtd.25.09.2007 holding that the defendant herein is in lawful possession and enjoyment of the suit schedule property. The plaintiff has allegedly purchased the suit schedule property in the year 2004 and when he had taken possession till the year 2007, it was held by the competent Court that the defendant is in possession of the suit schedule property. Though the plaintiff has filed this suit in the year 2008, subsequently, in the year 2011 by way of filing an amendment application, he had taken up the contention that he had business interest in Bellary and was concentrating on his business and when he visited the suit schedule property 33 OS No.25370/2008 during January 2010 he was shocked to know that the watchman was missing and the defendant had taken possession of the suit schedule property. The plaintiff has not produced any document to show as to when actually he had visited Bellary and when the defendant had taken possession of the suit schedule property. Admittedly from 2007, the defendant was in possession of the suit schedule property as held by a Court of law and the plaintiff had filed this suit in the year 2008. When exactly the plaintiff had taken possession of the suit schedule property and when he was dispossessed has not been mentioned by him.
31. The Hon'ble Supreme Court in the decision of C.A No.5884/2009 Akkamma and Ors. Vs. Hemavathi and Ors., has held as follows:-
"Prayer for declaration was anchored on two instances 34 OS No.25370/2008 of interference with the possession of land of the plaintiffs and injunctive relief for restrain from interference with the property was also claimed. But possession of the said property by the original plaintiff was not established. The alternative relief sought to be introduced at a later stage of the suit was also found to be incapable of being entertained for the reason of limitation. Thus, the foundation of the case of the plaintiffs based on these two factual grounds collapsed with the fact-finding Courts rejecting both these assertions or allegations. There is no bar in the Specific Relief Act in granting standalone declaratory decree. The trial Court came to a positive finding that the original plaintiff was the owner of the suit schedule property. But, it was held that in the absence of declaration of possession by the plaintiff, declaration of title cannot be granted, We have already expressed disagreement with this line of reasoning. It seems to be a misconstruction of the provisions of Sec. 34 of the 1963 Act.
32. Further the Hon'ble Supreme Court has also held as under:-35
OS No.25370/2008 " That the proviso to sec.63 of 1963 Act requires making prayers for declaration as well as consequential relief. In this case, if the relief on second court fails on merits, for that reason alone the suit ought not to fail in view of aforesaid prohibition incorporated in sec.34 of the 1963 Act.
33. Further in para-19 the Hon'ble Supreme Court has held as under:-
"The additional plaintiff was entitled for declaration that he was the absolute owner of the suit schedule property, there is no bar in granting such decree for declaration and declaration could not be denied on the reasoning that no purpose would be served in giving such declaration, may be such declaratory decree would be no executable in the facts of this case. But, for that reasons alone such decree cannot be denied to the plaintiff. In our opinion discretion in granting declaratory decree cannot be exercised by the Court to deny such relief on the sole ground that the original plaintiff has failed to establish his case on further or consequential relief" . 36
OS No.25370/2008
34. Admittedly, the plaintiff has purchased the property during the pendency of the suit in OS No. 8785/2003 wherein it was held that the defendant was in possession of the suit schedule property. The plaintiff by failing to produce and cogent and reliable oral or documentary evidence to show that he was in possession of the suit schedule property from 2004 till the date of filing of the suit or till the date of his dispossession during January 2010 has failed to prove that he has been in possession of the suit schedule property from the date of purchase till the date of his dispossession.
35. The defendant had filed the suit in OS No. 8785/2003 in the year 2003 against Mr.P.R.Murthy-the vendor of the plaintiff. The said suit had decreed in favour of the defendant vide judgment and decree dtd. 25.09.2007. The plaintiff had purchased the suit schedule 37 OS No.25370/2008 property on 23.07.2004 from the General Power of Attorney Holder of Mr. Prachit R Murthy. Even Smt.Jayanthi Kulkarni had sold the suit schedule property through her General Power of Attorney Holder in favour of said Prachit R Murthy. Admittedly, Sri.M.Nanjundappa had sold the suit schedule property to Smt.Jayanthi Kulkarni under a Regd. Sale Deed, but both Smt.Jayanthi Kulkarni and Prachit R Murthy have sold the suit schedule property to their purchasers through the General Power of Attorney holders. The said General Power of Attorneys are not produced by the plaintiff in order to ascertain whether the transaction to the plaintiff was under registered Deed or not. The plaintiff had purchased the suit schedule property in the year 2004 when the suit in OS No.8785/2003 was pending. Sri.Prachit R Murthy-the vendor of the plaintiff had knowledge about the suit filed against him as he had 38 OS No.25370/2008 received suit summons from the Court in the said suit, but he had failed to appear before the Court and on the other hand, in order to defraud the claim of the defendant regarding her possession claimed in OS No.8785/2003, in turn sold the property through his General Power of Attorney Holder to the plaintiff. The plaintiff being a pendente-lite purchaser, as held by the Hon'ble High Court of Karnataka in RFA No.1446/2014 which was filed by challenging the earlier judgment and decree, that ' t is not in dispute that the plaintiff herein was a lis- pendence/pendent-lite purchaser of the suit schedule property'.
36. In the decision reported in Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana and another (Special Leave Petition © No.13917/2009), the Hon'ble Supreme Court has held as under:-39
OS No.25370/2008 " 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 were 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 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. Or An agreement of sale agreeing to sell the property, with a separate affidavit confirming receipt of full price and delivery of possession and undertaking to execute sale deed whenever required.
(b) An Irrevocable General Power of Attorney by the 40 OS No.25370/2008 vendor in favour of the purchaser or his nominee authorizing him to manage, deal with and 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).
These transactions are not to be confused or equated with genuine transactions where the owner of a property grants a power of Attorney in favour of a family member or friend to manage or sell his property, as he is not able to manage the property or execute the sale, personally. These are transactions, where a purchaser pays the full price, but instead of getting a deed of conveyance gets a SA/GPA/WILL as a mode of transfer, either at the instance of the vendor or at his own instance.
xxx xxx xxx
(c) Purchasers who want to avoid the payment of stamp duty and registration charges either deliberately or on wrong advice. Persons who deal in real estate resort to 41 OS No.25370/2008 these methods to avoid multiple stamp duties/registration fees so as to increase their profit margin. Whatever be the intention, the consequences are disturbing and far reaching, adversely affecting the economy, civil society and law and order. Firstly, it enables large scale evasion of income tax, wealth tax, stamp duty and registration fees thereby denying the benefit of such revenue to the government and the public. Secondly, such transactions enable persons with undisclosed wealth/income to invest their black money and also earn profit/income, thereby encouraging circulation of black money and corruption. This kind of transactions has disastrous collateral effects also. For example, when the market value increases, many vendors (who effected power of attorney sales without registration) are tempted to resell the property taking advantage of the fact that there is no registered instrument or record in any public office thereby cheating the purchaser. When the purchaser under such `power of attorney sales' comes to know about the vendors action, he invariably tries to take the help of muscle men to `sort out' the issue and protect his rights. On the other hand, real estate mafia many a time purchase properties which are already subject to power of attorney sale and then threaten the previous 42 OS No.25370/2008 `Power of Attorney Sale' purchasers from asserting their rights. Either way, such power of attorney sales indirectly lead to growth of real estate mafia and criminalization of real estate transactions". In the above said decision, the Hon'ble Supreme Court has held that the transaction of the nature of General Power of Attorney sale or SA/ or Will, the transaction do not convey title and do not amounts to transfer of ownership can be recognized as valid modes of transfer of immovable property.
37. In this case, admittedly, Sri.M.Nanjundappa was the original owner of the property and he had executed an unregistered General Power of Attorney and Affidavit in favour of the defendant, but during his lifetime itself, he had executed a registered Sale Deed in favour of Smt.Jayanti Kulkarni, in respect of the same property, on which he had executed the GPA and affidavit in favour of 43 OS No.25370/2008 the defendant. The execution of the registered sale deed by Sri.N. Nanjundappa admittedly cancels the General Power of Attorney executed by him in favour of the defendant. The defendant though has claimed that in view of the Fragmentation Act she could not get the GPA registered or the sale deed registered in her name. There is no explanation from the defendant as to why till the filing of the suit in the year 2003 she has not made any efforts to get the sale deed executed in her favour on the basis of the GPA executed by Sri.Nanjundappa. The defendant has also not produced any documents to show that from the year 1986 till 2010 she has paid any tax in respect of the suit schedule property, though she claims to be in possession of the same since the year 1986.
38. On analyzing the documents produced by both the sides, it can be seen that M.Nanjundappa had only 44 OS No.25370/2008 executed an unregistered General Power of Attorney and affidavit as per Ex.D.1 and D.2, but during his lifetime itself he had executed the absolute sale deed in favour of Smt.Jayanthi Kulkarni, now the defendant cannot claim her right over the suit schedule property on the basis of the unregistered documents over the claim of the original owner who had executed registered Sale deed in favour of Smt.Jayanthi Kulkarni subsequently. The act of Sri.M. Nanjundappa in executing the registered sale deed in favour of the vendor of the plaintiffs vendor's vendor goes to show the revocation of the General Power of Attorney, as the plaintiff is relying upon the registered documents, the contention taken up by the defendant that the legal heirs of the said Nanjundappa have not made as parties is bad in law cannot be taken as the suit is unsustainable, because the said M.Nanjundappa during his life time itself 45 OS No.25370/2008 has executed the sale deed given up his right in respect of the suit schedule property.
39. Generally, injunctions are right 'in personam' and not right 'in rem' and does not run with the land. In the decision reported in AIR 2012 SC 1727 (Mari Margaride Fernandes an ors Vs. Erasma Jack de Sequeria (dead) through Lrs ) it has been held as under:-
"Possession" is important when there is no title documents and other relevant records before the Court, but, once the documents and records of title come before the Court, it is the title which has to be looked at first and due weightage be given to it. Possession cannot be considered in vacuum'
40. The Hon'ble Supreme Court in Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, represented by its 46 OS No.25370/2008 Present , reported its present etc. AIR 2012 SC 2010 at para-61 to 71 has held as under:-
" That in an action for recovery for possession of immovable property or for protecting the possession thereof upon the legal title to the property being established, the possession or occupation of the property by person other than the holder of a legal title will be presumed to have been in subordination to the legal title and it will be for the person resisting a claim for recovery of possession for claiming a right to continuing possession establish that he has such a right. To put it differently, whenever pleadings and documents to establish a title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession" .
"The title suit for possession has two parts; (1) adjudication of title and (2) adjudication of possession. If the title dispute is removed and the title is established in one or the other, then, in effect, it becomes suit for ejectment but the defendant must plead and prove why he must not be ejected". 47
OS No.25370/2008 "In an action for recovery of possession of immovable property of for protecting the possession thereof, upon the legal title to the property being established, the possession or occupation of the property by person other than the holder of a legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put it differently, wherever pleadings and documents establish title to a property and possession is in question, it will be for the person in possession to give sufficient detailed pleadings, particulars and documents to support his claim in order to continue in possession".
41. In another decision reported in AIR 2012 SC 1727 (Maria Margardia Sequeira Fernandes and ors. Vs. Ersmo Jack de Sequeria (dead) through L.Rs.), the Hon'ble Supreme Court has held as under:- 48
OS No.25370/2008 "B-Specific Relief At (47 of 1963), S.6-Civil P.C. (5 of 1908), O.6 R.1- Suit for possession-By person other than title holder-Nature of pleadings and details to be given therein enumerated".
"In an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under an in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put it differently, wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession. It would be imperative that one who claims possession must give the following belows:-
(a) who is or are the owner or owners of the property;49
OS No.25370/2008
(b) title of the property;
(c) who is in possession of the title documents
(d) identity of the claimant or claimants to possession;
(e) the date of entry into possession;
(f) how he came into possession - whether he purchased the property or inherited or got the same in gift or by any other method;
(g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license fee or lease amount;
(h) If taken on rent, license fee or lease - then insist on rent deed, license deed or lease deed;
(i) who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants etc.;
(j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein; and
(k) basis of his claim that not to deliver possession but continue in possession".
42. In view of the documents furnished by both the sides and the suit filed by the defendant in OS 50 OS No.25370/2008 No.8785/2003 which was decreed in the year 2007 holding that the defendant is in possession of the suit schedule property, which has not been rebutted by the plaintiff by producing any documents such as electricity bills or revenue documents to show that he was in possession of the suit schedule property, the plaintiff has failed to prove that he was in possession of the suit schedule property as on the date of filing of the suit. Further, by failing to produce cogent evidence regarding his dispossession from the suit schedule property as on January 2010, the plaintiff has also failed to prove that he was dispossessed from the suit schedule property in the month of January 2010.
43. It is the settled law that title prevails over the possession and though the defendant has failed to prove that the plaintiff was in possession of the suit schedule 51 OS No.25370/2008 property, subsequently, the plaintiff has sought to introduce the prayer for recovery of possession to cure the defect made by him. Sec.65 of the Limitation Act, provides that any person dispossessed from the property or not in possession of the property can claim the possession of the property within 12 years from the date of knowledge in case of private property. In this case, the plaintiff had purchased the property in the year 2008 and in the year 2012 he had filed the application for amendment of the plaint seeking recovery of the possession of the suit schedule property on the ground that he was dispossessed from the property in January 2010. The contention of the defendant that she was in possession of the suit schedule property had been upheld by the competent Court of law in OS No.8785/2003, the same can be taken into consideration, but the plaintiff has 52 OS No.25370/2008 cured the defect of seeking possession within the time prescribed under the Limitation Act.
44. In view of the plaintiff proving his title over the suit schedule property by way of registered document and also as the revenue documents are standing in the name of the plaintiff and prior to him, his vendor and vendor's vendor, the plaintiff has proved that he is entitled to recover possession of the suit schedule property from the defendant, though he has failed to prove that he was dispossessed on the basis of the judgment and decree passed in OS No.8785/2003.
45. Therefore it can be held that the plaintiff has proved that he is the absolute owner of the suit schedule property under the registered sale deed dtd. 23.07.2004 and he is entitled to recover the possession of the suit schedule property from the defendant. Further, the plaintiff has failed to prove 53 OS No.25370/2008 that he was in possession as on the date of the suit. Accordingly, the Issue No.1 is answered in the affirmative, Issue Nos.2 and 3 and Addl. Issue No.1 dtd.30.07.2022 are answered in the negative and Addl. Issue No.2 is answered partly in the affirmative.
46. Issue No.4:- This issue has been framed placing the burden on the plaintiff to prove that the decree passed in OS No.8785/2003 by the 22nd Addl. City Civil Judge, Bengaluru is not binding on him. The defendant had filed the said suit in OS No.8785/2003 against the vendor of the plaintiff i.e, Sri.Prachit R Murthy seeking for an order of injunction, restraining him from interfering with her possession and enjoyment of the suit schedule property. The said suit was filed on 10.12.2003 as can be seen from Ex.D13, the certified copy of the judgment and decree passed in the said suit. The judgment and decree was 54 OS No.25370/2008 passed in the said suit on 25.09.2007. At page-4 of Ex.D13- judgment and decree, it can be seen that the summons was issued by RPAD to the defendant Sri.Prachit R Murthy, but it was not claimed by him, hence an ex-parte decree was drawn against the vendor of the plaintiff Mr.Prachit.R.Murthy. At para-3 and 4 of the judgment and decree it is mentioned as follows:-
"3. In this case there is only one defendant. The summons issued to the defendant by R.P.A.D. has returned unserved with a shara that it was not claimed".
4. It is needless to say that when a registered post properly addressed and duly stamped has returned unclaimed despite of intimation being delivered by the postal department to the addressee, there is a deemed service of the summons on the defendant. Therefore, the defendant was placed ex-parte on 13.6.2007".
55
OS No.25370/2008
47. After considering the evidence led by the plaintiff therein who is the defendant in this suit, the suit filed by the defendant herein was decreed and it was ordered that the defendant i.e., Sri.Prachit.R.Murthy, his men, servants, are restrained by way of permanent injunction from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property. This judgment was passed on 25.09.2007. The plaintiff herein had purchased the suit schedule property in the year 2004, on 23.07.2004 i.e. during the pendency of the suit filed in OS No.8785/2003.
48. The learned counsel for the plaintiff has argued that the suit in OS No.8785/2003 being a suit for bare injunction, the question of lis pendence does not arise, as it was not a comprehensive suit touching upon the title of 56 OS No.25370/2008 the property in question. Admittedly, when the plaintiff herein had purchased the suit schedule property in the year 2004, a suit was pending against his vendor Mr.Prachit.R.Murthy who had knowledge about the pendency of the said suit. It is not the case of the plaintiff that the defendant had obtained the decree in OS No. 8785/2003 by playing fraud on the plaintiff. On the other hand, vendor of the plaintiff, had knowledge about the suit pending against him and inspite of the same he had sold the suit schedule property to the plaintiff. The plaintiff herein has not shown any grounds that he was mislead or misrepresented by his vendor regarding the pendency of the suit and not a single piece of evidence has been led by the plaintiff to show that his vendor had sold the property to him by misrepresenting the facts and by not disclosing about the pendency of the suit in OS No.8785/2003 in 57 OS No.25370/2008 respect of the suit schedule property before a competent Court.
49. The Hon'ble High Court of Karnataka, while remanding the matter to this Court on point no.2 vide order 30.06.2022 has clearly held that the plaintiff has purchased the suit schedule property from Prachit.R. Murthy and it is not in dispute that the plaintiff was a lis pendence/pendente lite purchaser of the suit schedule property from Sri.Prachit R Murthy against whom the defendant had herein had instituted the previous suit and had obtained a decree. Further it is also held by the Hon'ble High Court of Karnataka that the lis pendent purchaser is bound by the final verdict of the suit pending of which he acquires the property, as held by the Apex court in the case of Rajkumar Vs. Sardari and ors reported in 2004(2) SCC 601, and it is found that the 58 OS No.25370/2008 plaintiff had been undisputedly purchased the suit schedule property during the pendency of the suit in OS No.8785/2003 filed by the defendant against the plaintiff's vendor Prachit R Murthy, a final decree passed in the said suit in favour of the defendant herein against Prachit R Murthy in respect of the rival claims in relation to the suit schedule property would be clearly binding upon the plaintiff herein.
50. On perusal of the judgment and decree passed in OS No.8785/2003, there was no finding given with respect to the title of the defendant over the suit schedule property, except for contending that the defendant therein i.e., the vendor of the plaintiff had not appeared before the Court to prove that he has better title than the plaintiff, the Court has come to the conclusion that there should not be any interference with her possession and enjoyment of the 59 OS No.25370/2008 suit schedule property. There is not even a single whisper made regarding the defendant having lawful title to claim her possession over the suit schedule property, has been made in the said judgment. Hence, though the competent Court has come to a conclusion that the plaintiff is restrained from interfering with the physical possession of it cannot be held that the Court has given finding regarding the title of the defendant over the suit schedule property.
51. Injunction is a recurring relief. In a suit for injunction simplicitor, injunction is a recurring relief, there is no need to frame any issue relating to the title as the issue of title will not be directly and substantially in issue except where the suit property is a vacant site or a vacant non-agricultural land and a cloud is raised over the plaintiff's title in respect of such vacant site or land. A suit for grant of permanent prohibitory injunction without 60 OS No.25370/2008 seeking the relief of declaration of title is maintainable. A person in possession of immovable property is entitled to injunction even against a time owner- the time owner is entitled to seek possession only by dispossessing such person in accordance with law by filing a suit for possession.
52. In the decision reported in 2008 AIR SCW.2692 (Ananthula Sudhakar Vs. Buchi Reddy (dead) by legal heirs and ors) it has been held as under: -
"Sec.38 -Specific Relief Act- Prohibitory injunction to immovable property-suit for Scope of -Sec. 34-S.38-Suit for injunction simplicity-maintainability-Plaintiff's claim for possession purely based on title through 'R' who claimed to be owner in pursuance of oral gift in the year 1961 without properly being mutated in her name-Whereas defendant claimed title from original owner who was registered as original owner in revenue records-complicated question of title involved- could be examined only in a title suit, for declaration and 61 OS No.25370/2008 consequential reliefs and not in a suit for injunction simplicitor-"
53. Further, the Hon'ble Supreme Court in the above said decision has held in paras-11, 13 and 14 of the above judgment as under:-
" 1. 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".
"11.3) 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 establish possession, 62 OS No.25370/2008 necessarily the plaintiff will have to file a suit for declaration, possession and injunction".
"13. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally".
"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 63 OS No.25370/2008 who is not able to establish title. This means 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 of 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 involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that 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".
54. In a decision relied upon by the plaintiff, reported in AIR 1999 Supreme Court 1666 (Prataprai.N. Kothari Vs. John Braganza), the Hon'ble Supreme Court has held as follows:-
64
OS No.25370/2008 "(C) Specific Relief Act (47 of 1963), S.38- Suit for permanent injunction against dispossession- Suit claim based on plea of long and exclusive possession-
Not on title- Defendant also not raising plea that he had title to suit property-Dismissal of suit on ground that defendant has proved his title and on doctrine that possession follows title-Improper". A perusal of the plaint shows that the entire case of the respondent rested only on his exclusive possession for several decades and not on any claim of title. Though the respondent was not quite clear as the origin of his possession, his continuous and exclusive possession from May, 1964 under a registered lease deed was the basis of his claim. In the written statement filed by the appellant, while denying claim of the respondent, there was no specific plea that the appellant had title to the property and that the suit was not maintainable at the instance of the respondent".
55. The plaintiff has not examined his vendor Prachit. R.Murthy in order to dispute the claim of the defendant that Prachit.R.Murthy had knowledge about the pendency 65 OS No.25370/2008 of the suit and the reason for him to have executed the sale deed in favour of the plaintiff inspite of having knowledge that a suit was pending against him in respect of the suit schedule property. The plaintiff being a pendent lite lite purchaser of the suit schedule property during the pendency of a suit in OS No.8785/2003, now cannot claim that the decree passed in OS No.8785/2003 is not binding on him. By failing to prove that the defendant has obtained the decree passed in her favour by fraud, the plaintiff has failed to prove that the judgment and decree is not binding upon him, but as the said suit was filed seeking injunction simplicitor, the findings given therein is not binding on the subsequent purchaser and hence the Issue No.4 does not arise for consideration.
56. Additional issue No.1 dated 11.10.2021:- The plaintiff has claimed mesne profit at the rate of Rs.15,000/- 66
OS No.25370/2008 per month on the grounds that the defendant is in unlawful possession of the suit schedule property from January 2010 and as the suit schedule property is situated in a prime residential area, the plaintiff is entitled for mesne profits. As discussed under Issues Nos.3, 4 and Additional Issues Nos.1 and 2, the plaintiff has not proved as to since when he was in possession of the suit schedule property or that he was dispossessed from the suit schedule property in the month of January 2010.
57. On the other hand, the plaintiff has miserably failed to show that he was ever in possession of the suit schedule property by virtue of the Sale Deed dated 23.07.2004 and in view of the plaintiff purchasing the property during the pendency of the suit in OS No. 8785/2003, wherein the vendor of the plaintiff had knowledge of the pendency of the suit, the plaintiff has 67 OS No.25370/2008 failed to prove that he has been in possession of the suit schedule property since the date of his purchase till the date of his dispossession during January 2010 and that the judgment and decree passed in OS No.8785/2003 is not binding on him.
58. The plaintiff has not produced any documents to show that even from 2004 to 2010 he was in actual and physical possession of the suit schedule property. Admittedly, the revenue documents produced by the plaintiff are only with respect to khata certificates, tax paid receipts ,etc., but no documents are produced such as electricity bills or water bills to show that he was paying the electricity bill or water bill in respect of the suit schedule property. Though, the plaintiff has claimed that he was dispossessed in the month of January 2010, and he has produced the katha certificates and tax paid receipts, 68 OS No.25370/2008 subsequent to the year 2010, which goes to show that the plaintiff was paying taxes and only on the basis of the revenue records, it cannot be held that the plaintiff was in physical possession of the suit schedule property.
59. The plaintiff himself has produced Ex.P15-the Judgment passed in CC No.6155/2008 which was filed by the defendant against the plaintiff and another person alleging that on 17.12.2007 at about 10.00 am both the accused persons including the plaintiff had damaged the shed constructed in site No.11 of Sy.No.6, 1st Cross, 1st Main, Matru Layout, Yalahanka New Town belonging to her and caused a loss to the tune of Rs.45,000/-. Even after the Judgment dated 25.09.2007 passed in OS No.8785/2003 the defendant had filed a criminal case against the plaintiff on 28.12.2007. The plaintiff has filed this suit on 23.02.2008 and even in the criminal case filed by the 69 OS No.25370/2008 defendant, the defendant had mentioned about the OS No.8785/2003 which was filed by her and under which she had obtained the permanent injunction decree. Inspite of the plaintiff having knowledge about the suit filed by the defendant in OS No.8785/2003, and that she had a decree restraining the defendant who was the vendor of the plaintiff, the plaintiff while filing this suit had not sought for possession of the property. On the other hand, he has contended that, he was in possession of the property as on the date of the filing of the suit and subsequently in the year 2012 by way of filing amendment, he has claimed that he was dispossessed from the suit schedule property.
60. Hence, on total consideration of the evidence led by the plaintiff himself, he has failed to prove that he was in possession of the suit schedule property from the date of the execution of the Sale deed dated 23.07.2004 and 70 OS No.25370/2008 that he is entitled for mesne profits at the rate of Rs.15,000/- per month from the defendant. Accordingly Additional Issue No.1 dtd.11.10.2021 is answered in the negative.
61.Issue No.5:- The defendant has taken contention that the suit is bad for non joinder of necessary and proper parties as the legal heirs of Mr. M. Nanjundappa, Mrs. Jayanthi Kulakarni and Prachit R Murthy from whom the plaintiff has derived his alleged right, are the proper and necessary parties to this suit and they are not made as parties to this suit. The production of the registered sale deed ie., Ex.P.1 executed by the propostius Sri.M. Nanjundappa in favour of Smt.Jayanthi Kulkarni, Ex.P.2 to Ex.P.7 the tax demand extracts and the tax paid receipt standing in the name of Smt.Jayanthi Kulkarni; Ex.P.8 the registered Sale deed executed by Smt.Jayanthi Kulkarni in 71 OS No.25370/2008 favour of Sri.Prachit R Murthy-the vendor of the plaintiff, Ex.P.9 10, 14 and 15-the revenue documents standing in the name of Sri.Prachit R Murthy the vendor of the plaintiff clearly goes to show that under the registered deeds, the suit schedule property has been transfered in favour of the plaintiff. The plaintiff is claiming his right under a registered sale deed. Hence, the legal heirs of Late M.Nanjundappa and the subsequent purchasers under registered sale deeds are not necessary parties to this proceedings. Hence, the defendant has failed to prove that this suit is bad for non-joinder of necessary parties. Accordingly, issue No.5 is answered in the negative.
62. Issue No.6 and Addl.issue No.3 dt.30.07.2022:-
In this case, the defendant has contended that the suit of the plaintiff is barred by law of limitation. The defendant has contended in her written statement that the suit is 72 OS No.25370/2008 barred by limitation as the plaintiff had the knowledge of defendant's title and possession of the suit property since the year 2003. This suit is filed seeking the declaration that the plaintiff is the absolute owner of the suit schedule property based on the registered sale deed dtd.23.03.2004. The defendant claims that she has got right, title, interest and possession over the suit schedule property based on the unregistered General Power of Attorney and affidavit dtd. 23.04.1986 and the property shown in the said GPA and affidavit and the suit schedule property are one and the same. As already discussed in the above issues that as per Sec.54 of the Transfer of Property Act the sale transaction has to be registered in accordance with the Registration Act. Admittedly, the sale deed executed in favour of the plaintiff is a registered sale deed under which the title has been transferred to him. But, the documents 73 OS No.25370/2008 under which the right, title and possession claimed by the defendant are under unregistered General Power of Attorney and affidavit. As per the decision reported in the case of Suraj Lamp & Industries Pvt. Ltd Vs. State of Haryana and anr.), the Hon'ble Supreme Court has held that the transfer of the nature of General Power of Attorney sale do not convey title and do not amount to transfer of ownership. The suit filed by the defendant in OS No.8785/2003 was against the vendor of the plaintiff and not against the plaintiff, as the plaintiff is not a party to the said suit. The present suit is filed by the plaintiff on 25.02.2008 against the defendant based on the cause of action that arose on 17.02.2008, when the defendant along with some persons interfered with the plaintiff's peaceful possession and enjoyment of the suit schedule property and obstructed him from putting up the watchman shed. 74
OS No.25370/2008 The contention of the defendant that the plaintiff had the knowledge of defendant's title and possession over the suit schedule property since the year 2003, does not arise and the said contention cannot be accepted. Hence the contention of the defendant that the suit is barred by limitation cannot be accepted and accordingly, Issue No.6 and Addl. Issue No.3 dtd. 30.07.2022 are answered in the negative.
63. Issue No.7:- It is the contention of the defendant in the written statement that the Court fee paid on the plaint is insufficient, as the present market value of the property is more than Rs.25,00,000/- and the plaintiff is not in possession of the suit schedule property and hence the valuation ought to have been made under section 24(a) of the Karnataka Court Fees and Suits Valuation Act. On perusal of the valuation slip, the plaintiff has valued the 75 OS No.25370/2008 suit schedule property at Rs.9,60,000/- and based on which, he had paid Rs.32,100/- as the court fees.
64. Admittedly, the sale deed produced by the plaintiff, under which, the suit schedule property had been purchased by him. is for the sale consideration of Rs.4,25,000/-, which is dated 23.07.2004 and the suit was filed on 23.02.2008 and the suit was valued at Rs.9,60,000/- as per the valuation slip and the Court fees paid on the said valuation is Rs.32,100/- which is in accordance with law. On the other hand, the defendant though has taken up the contention that the Court fee paid is not proper, she has not at all produced any materials to show that the valuation made and the Court fee paid by the plaintiff, in respect of the suit schedule property, is not proper. Therefore, the contention of the defendant that the Court fee paid on the plaint is not proper and correct cannot be 76 OS No.25370/2008 accepted. Accordingly, I answer Issue No.7 in the affirmative.
65. Issue No.8:- On considering the entire oral and documentary evidence, the plaintiff has proved that he is the absolute owner of the suit schedule property purchased under the Sale deed dated 23.07.2004 from its owner and proves that he is entitled for possession of the suit schedule property by virtue of he being the owner of the suit schedule property. Further, the plaintiff has proved that the suit is not bad for non joinder of necessary parties and the suit is not barred by law of limitation, and the Court fee paid by him on the plaint is proper and correct. The plaintiff has failed to prove that he is entitled for the mesne profit. On the other hand, the defendant has failed to prove that she is the owner of the suit schedule property 77 OS No.25370/2008 and that the suit is barred by law of limitation. Accordingly, issue no.8 is answered in the affirmative.
66. Issue No.9:- In view of the reasonings given above, I proceed to pass the following:-
ORDER The suit of the plaintiff is hereby decreed with cost.
The plaintiff is declared as absolute owner of the suit schedule property under the regd. Sale deed dated. 23.07.2004.
The plaintiff is entitled for possession of the suit schedule property. The defendant is directed to hand over the vacant physical possession of the suit schedule property to the plaintiff, within a period of (3) three months, failing which, the plaintiff is entitled 78 OS No.25370/2008 to take possession of the suit schedule property by due process of law.
The defendant, her men, agents, etc. are restrained by way of decree of permanent injunction, from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property.
The plaintiff is not entitled for mesne profits.
Draw the decree accordingly.
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(Dictated to the Stenographer, transcribed and computerized by him and after corrections signed and pronounced by me in the open court on this the 29 th day of November, 2022)
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(Yermal Kalpana) 79 OS No.25370/2008 XXVI Addl. City Civil Judge Mayo Hall, Bengaluru.80
OS No.25370/2008 ANNEXURE
1. List of witnesses examined for the plaintiff/s:
P.W.1 Mr. Havinal Prashanth P.W.2 Kiran
2. List of witnesses examined for defendant/s:
D.W.1 Smt.H.N.Susheelamma
3. List of documents exhibited for the plaintiff/s:
Ex.P.1 Original sale deed dt. 10/7/1991 Ex.P.2 Original demand register extract Ex.P.3 Revenue record dt. 17/11/2001 Ex.P.4 to 7 Tax paid receipts Ex.P.8 Original sale deed dt. 7/3/2001 Ex.P.9 Original Katha transfer dt. 3/11/2001 Ex.P.10 Tax paid receipt copy 81 OS No.25370/2008 Ex.P.11 Original sale deed copy dt.23/7/2004 Ex.P.12 Certified copy of sale deed dt.23/7/2004 Ex.P.13 Original GPA Ex.P.14 Attested true copy of property assessment - Form No.III Ex.P.14 Copy of tax paid receipt Ex.P.15 Copy of tax details for 2003-04 Ex.P.16 Copy of tax paid receipt Ex.P.17 Copy of tax details for 2004-05 Ex.P.18 Copy of tax paid receipt Ex.P.19 copy of tax details for 2006-07 Ex.P.20 Copy of tax paid receipt Ex.P.21 Copy of property tax details for 2005-06 Ex.P.22 Copy of property tax details for the year 2004-05 Ex.P.23 Copy of property tax details for the year 2003-04 82 OS No.25370/2008 Ex.P.24 to 26 Copy of tax paid Receipts Ex.P.27 Tax paid receipt Ex.P.28 Copy of property tax details for the year 2005-06 Ex.P.29 Certificate issued by BBMP dt.
7/8/2012 Ex.P.30 Property related document dt.
7/8/2012 issued by Asst.Revenue Officer, Yelahanka Sub-division Ex.P.31 & 32 Endorsements Ex.P.33 Receipt Ex.P.34 to 39 Tax paid receipts Ex.P.40 Property tax details 2007-08 Ex.P.41 to 43 Tax paid receipt Ex.P.44 Estimation for the removal of debris Ex.P.45 to 49 Encumbrance certificates Ex.P.50 Certified copy of the judgment in C C No.6155/2008 83 OS No.25370/2008 Ex.P.51-54 Four photographs Ex.P.55 CD of the above Photographs
4. List of documents exhibited for defendant/s:
Ex.D.1 G.P.A.
Ex.D.2 Affidavit
Ex.D.3 Tax paid receipt
Ex.D.4 Acknowledgment
Ex.D.5 F.I.R. copy
Ex.D.6 Complaint
Ex.D.7 Electricity bill
Ex.D.7(a) Receipt
Ex.D.8 to 10 Electricity bills
Ex.D.11 Power sanction letter
Ex.D.12 B.W.S.S.B. bill
Ex.D.13 Certified copy of judgment in
O.S.8785/2003
84
OS No.25370/2008
Ex.D.14 Certified copy of decree in
O.S.8785/2003
Ex.D.15 Acknowledgment
Ex.D.16 Photograph
Ex.D.17 Property tax receipt for the year 2008-09 Ex.D.18 Acknowledgment issued by the BBMP Ex.D.19 Property tax receipt for the year 2009-10 Ex.D.20 Acknowledgment issued by the BBMP (Yermal Kalpana) XXVI Addl. City Civil Judge Mayo Hall, Bengaluru.85
OS No.25370/2008 (Judgment pronounced vide separate judgment) ORDER The suit of the plaintiff is hereby decreed with cost.
The plaintiff is declared as absolute owner of the suit schedule property under the regd. Sale deed dated. 23.07.2004.
The plaintiff is entitled for possession of the suit schedule property. The defendant is directed to hand over the vacant physical possession of the suit schedule property to the plaintiff, within a period of (3) three months, failing which, the plaintiff is entitled to take possession of the suit schedule property by due process of law.
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OS No.25370/2008 The defendant, her men, agents, etc. are restrained by way of decree of permanent injunction, from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property.
The plaintiff is not entitled for mesne profits. Draw the decree accordingly.
(Yermal Kalpana) XXVI Addl. City Civil Judge Mayo Hall, Bengaluru.