Bangalore District Court
O.S./7372/2010 on 16 February, 2016
IN THE COURT OF THE XII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH.No.27), AT BANGALORE.
-: PRESENT :-
SRI.BHAIRAPPA SHIVALING NAIK, B.Com.,LL.B.(Spl),
XII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
DATED: THIS THE 16th DAY OF FEBRUARY 2016
O.S.No.7372/2010 AND 7371/2011
PARTIES IN O.S.No.7372/2010 : -
Plaintiff :-
Sri.H.Nagaraj, Aged about 51 years,
S/o. Late B.N.Hanumaiah, Presently
residing at No.3, 6th Cross, 40 Feet
Road, Manjunathanagar, 2nd Phase,
Bangalore-560010
(By Sri.M.Aswathanarayana Reddy,
Advocate)
/ VERSUS /
Defendants : -
1. Sri.P.Murugan, S/o.Late Ponny-
swamy Modaliar, 71 Years.
2. M.Raghunathan S/o.P.Murugan, 48
Years.
2 O.S.No.7372/2010 & 7371/2011
3. P.Umapathy, 48 Years, S/o.Late
Ponnuswamy Modaliar.
4. Smt.Santhi W/o.P.Umapathy, 46
Years.
5. Smt. Kuppamma D/o. Late
Ponnuswamy Modaliar, Hindu,
Major.
All are residing at Old No.U-22, New
No.12, 5th Cross, Old Okalipuram,
Bangalore -560021.
.
(By Ms.K.Sheela Anish Associates,
Advocates)
Date of Institution of the suit : 29/11/2010
Nature of the suit : Declaration and
permanent injunction
Date of commencement of
recording of the evidence : 29/5/2012
Date on which the Judgment was
pronounced : 16/02/2016
Total Duration Years Months Days
: 06 00 17
**********
3 O.S.No.7372/2010 & 7371/2011
PARTIES IN O.S.No.7371/2011 : -
Plaintiffs :-
1. Sri.P.Murugan, S/o.Late Ponnuswamy
Modaliar, 75 Years.
2. M.Raghunathan S/o.P.Murugan, 49
Years.
3. P.Umapathy, 61 Years, S/o.Late
Ponnuswamy Modaliar.
4. Smt.Santhi W/o.P.Umapathy, 49
Years.
All are R/o. Old No.U-22, New
No.12, 5th Cross, Old Okalipuram,
Bangalore -560021.
.
(By Ms.K.Sheela Anish Associates,
Advocates)
/ VERSUS /
Defendants : -
Sri.H.Nagaraj, Aged about 52 years,
S/o. Late B.N.hanumaiah, R/o. No.3, 6th
Cross, 40 Feet Road, Manjunathanagar,
2nd Phase, Bangalore-560010
(By Sri.M.Aswathanarayana Reddy,
Advocate)
4 O.S.No.7372/2010 & 7371/2011
Date of Institution of the suit : 13/10/2011
Nature of the suit : Declaration and
permanent injunction
Date of commencement of
recording of the evidence : 04/10/2010
Date on which the Judgment was
pronounced : 16/02/2016
Total Duration Years Months Days
: 04 03 03
(BHAIRAPPA SHIVALING NAIK)
XII Addl. City Civil & Sessions Judge,
Bangalore.
***
COMMON JUDGMENT
The Plaintiff in O.S.No.7372/2010 has filed suit for
declaration, permanent injunction and mesne profits against
the defendants. Defendants No.1 to 4 in O.S.No.7372/2010
have filed suit in O.S.No.7371/2011 for declaration and
consequential relief of injunction in respect of the same
subject matter against the plaintiff in O.S.No.7372/2010.
5 O.S.No.7372/2010 & 7371/2011
2. It is pertinent to note here that both the suits are
filed by the rival parties in respect of the same subject
matter. Hence, both the suits are clubbed together for
common trial and disposal by common Judgment in
O.S.No.7372/2010. Hereafter the parties to both the suits
are referred as per their ranks in O.S.No.7372/2010 for the
purpose of convenience.
3. The case of the plaintiff in O.S.No.7372/2010 is
that, the immoveable property bearing Old No.U-22 and new
No.12, situated at 5th Cross, Old Okalipuram, Bengaluru had
been purchased by the father of plaintiff late B.N.Hanumaiah
under registered sale deed dated 13.12.1958 from
Mrs.B.Peacock as described in the schedule annexed to the
plaint. At the time of purchase of the suit schedule property,
one late Ponnuswamy Modaliar who is the father of
defendants No.1, 3 and 5 herein was a tenant in respect of
6 O.S.No.7372/2010 & 7371/2011
portion of suit schedule property who had continued as
tenant in respect of the said portion under the father of
plaintiff and paying rents in respect of said property. The
father of plaintiff had got effected khatha in his name from
Bengaluru City Corporation and paying taxes regularly.
4. First defendant had filed suit for specific
performance against late B.N.Hanumaiah and
Smt.L.Nagarathnamma in O.S.No.1010/1993 on the file of 4th
Additional First Munsiff, Bengaluru for a direction to late
B.N.Hanumaiah to execute Sale Deed in favour of first
defendant in respect of suit schedule property on the basis of
the alleged sale agreement dated 21.1.1973. In that suit the
first defendant had admitted that late B.N.Hanumaiah was
the owner of suit property. Besides 1st defendant had made
claim that he was the alleged owner of suit schedule
property having acquired the right by adverse possession.
Said suit was dismissed on 30.8.1975. However, the Court
7 O.S.No.7372/2010 & 7371/2011
ordered to recover a sum of Rs.1,000/- from late
B.N.Hanumaiah which was part of sale consideration.
Meanwhile, 1st defendant had preferred a regular appeal in
R.F.A.No.210/1975 and said appeal was dismissed on
13.10.1976 and the Judgment and Decree passed by the trial
Court became final.
5. Late B.N.Hanumaiah had borrowed a sum of
Rs.10,000/- from H.Thippeswamy and failed to repay said
amount and as such, Thippeswamy filed suit for recovery of
said amount in O.S.No.486/1973 against B.N.Hanumaiah and
that suit was decreed. That Thippeswamy had filed
Execution Petition No.1659/1974 and suit schedule property
was got attached and was brought to sale for more than
once. The facts being so, Smt.Muttamma wife of
Ponnuswamy Modaliar i.e., mother of defendant's No. 1, 3
and 5 was watching the proceedings and filed application
under Order 22 Rule 58 of CPC seeking to raise attachment
8 O.S.No.7372/2010 & 7371/2011
effected in O.S.No.486/1973. But that application was
dismissed on merits.
6. Thereafter, said Smt.Muttamma had filed a suit in
O.S.No.415/1979 against Thippeswamy and late B.N.
Hanumaiah for an order of injunction on the file of 5th
Additional First Munsiff, Bengaluru City and said suit was
dismissed after contest and even Misc.Appeal No.107/1979
filed by Smt.Muttamma was also dismissed by the Principal
Civil Judge, Bengaluru City. Thereafter, Smt.Muttamma and
her sons managed to set-up Bangalore Development
Authority to file a claim petition against Thippeswamy and
B.N.Hanumaiah in Miscellaneous No.43/1981 under Order 21
Rule 58 of CPC in respect of suit schedule property on the file
of 16th Addl. City Civil Judge, Bengaluru City, which was
dismissed on merits on 12.11.1984.
9 O.S.No.7372/2010 & 7371/2011
7. Subsequently, Smt.Muttamma filed another
O.S.No.7123/1980 against said Thippeswamy and
B.N.Hanumaiah on the file of 18th Addl. City Civil Judge,
Bengaluru City for declaration of title and injunction in
respect of suit schedule property and during the pendency of
said suit, Smt.Muttamma and B.N.Hanumaiah died, the L.Rs
of respective parties were brought on record. Said
Thippeswamy and legal heirs of B.N.Hanumaiah have
contested the suit by filing written statement. Said suit
decreed in part, thereby restraining Thippeswamy and
B.N.Hanumaiah from interference of any kind on the suit
schedule property till Smt.Muttamma's L.Rs are evicted in
due course of law and other reliefs of declaration of title and
rising of attachment order dated 20.2.1973 in O.S.No.
486/73 was dismissed. The L.Rs of late Smt.Muttamma
preferred R.F.A.No.681/99 and Hon'ble High Court of
Karnataka partly allowed said R.F.A. by raising the order of
attachment passed on 20.2.1973 in O.S.No.486/73. As
10 O.S.No.7372/2010 & 7371/2011
observed in the Judgment by Hon'ble High Court of
Karnataka that, in case subsequently if there is any suit, the
parties therein are at liberty to place their contentions. Said
order of Hon'ble High Court of Karnataka is advantageous to
L.Rs of late B.N.Hanumaiah, but not to Smt.Muttamma. That
being the position, the defendants started putting up illegal
structures in the vacant portion of the suit schedule property
in the month of March 2010. Plaintiff had immediately
questioned about the said illegal construction and also lodged
complaint before the police with respect to their illegal
construction and also submitted complaint to BBMP with
respect to unauthorised illegal construction. The defendants
appeared before the Srirampuram Police Station and
produced fabricated alleged Gift Deeds dated 22.10.2007
said to have been executed by defendants No.1 and 3 in
respect of suit schedule property in favour of his son and
wife respectively i.e., defendants No.2 and 4 herein in
respect of suit schedule property just to have wrongful gain
11 O.S.No.7372/2010 & 7371/2011
to themselves. Police have registered the case against the
defendants for the offences punishable under Sections 465,
461, 468 and 471 of IPC.
8. The plaintiff has further submitted that the L.Rs
of deceased B.N.Hanumaiah had executed a registered
release deed dated 17.4.2010 in favour of plaintiff in respect
of suit schedule property, as such, he is filing the suit for
appropriate reliefs. Right from the date of purchase, said
B.N.Hanumaiah had been in continuous possession and got
khatha transferred in his name and paid taxes to concerned
authorities regularly. As per the report of City Survey
Enquiry authorities said B.N.Hanumaiah was the owner in
possession of suit property and an endorsement to that
effect dated 27.5.1977 is issued by them. B.N.Hanumaiah
got khatha transferred in his favour on 21.5.1977 in
pursuance of his petition dated 8.8.1975. Besides
B.N.Hanumaiah had made declaration as required under the
Karnataka Rent Control Amendment Ordinance 1976 stating
12 O.S.No.7372/2010 & 7371/2011
that Smt.Muttamma and Murugan were his tenant in respect
of 2 portions of suit schedule property. Late B.N.Hanumaiah
had been issuing rent receipts to said tenants and his vendor
had maintained rent receipt book. Khatha in respect of
schedule property is effected in the name of plaintiff. Late
Smt.Muttamma and her L.Rs are the only tenants. They
have no right to squat over the suit schedule property. They
have not paid rents, thereby, enjoying the illegal possession
at the cost of plaintiff. Therefore, they are liable to pay
mesne profits and damages to the plaintiff for their illegal
occupation and use.
9. Defendants cannot continue as their claim of
alleged adverse possession has been negatived by all the
Courts including the Hon'ble High Court of Karnataka.
Plaintiff being owner has got legal right to evict the
defendants by due process of law as the defendants have no
manner of right, title or interest over the suit schedule
13 O.S.No.7372/2010 & 7371/2011
property. The alleged Gift Deeds are void documents and
not binding on the plaintiff. Hence, plaintiff has constrained
to file this suit to declare that the plaintiff is absolute owner
of the suit schedule property and direct the defendants to
deliver the possession of the schedule property by declaring
the registered Gift Deed dated 22.10.2007 executed by
defendants No.1 and 3 in favour of defendants No.2 and 4
respectively are illegal and null and void and consequential
relief of permanent injunction, restraining the defendants or
their agents or anybody claiming under them from alienating
or creating a charge in any manner over the suit schedule
property and also for mesne profits.
10. In response to the suit summons, the defendants
No.2 to 4 have appeared through their learned counsel.
Defendants No.2 to 4 have filed their joint written statement,
wherein they have denied all the allegations made in the
plaint as false. It is specifically denied that B.N.Hanumaiah
14 O.S.No.7372/2010 & 7371/2011
got effected khatha to his name from Bengaluru City
Corporation after he purchased the property. Since 1965 the
khatha stood in the name of Smt.Muttamma, the mother of
defendants No.1 and 3 till recently. It is also denied that
B.N.Hanumaiah had borrowed a sum of Rs.10,000/- from
Thippeswamy and Thippeswamy filed a suit in
O.S.No.486/1973. Late B.N.Hanumaiah could not take
possession from Smt.Muttamma and the defendants, file a
collusive suit in O.S.No.486/73 and managed to obtain an ex-
parte decree and tried to file Ex.No.1659/74. However,
defendants No.2 to 4 have admitted that Smt.Muttamma filed
an application under Order XXI Rule 58 of CPC and sought to
raise attachment in O.S.No.486/73 and also filed O.S.No.
7123/1980 for declaration and injunction against
B.N.Hanumaiah and Thippeswamy. Said suit came to be
decreed partly. Muttamma had filed R.F.A.No. 681/99. The
Hon'ble High Court of Karnataka modified the Judgment of
the Trial Court and decreed that, "the parties are at liberty to
15 O.S.No.7372/2010 & 7371/2011
place their contention and present plaintiff is not precluded
by showing that by adverse possession she had become
owner. However, it is clear that she was in possession of suit
schedule property since long and she was in possession on
the date of suit". Hence, it is wrong to say that the order
passed by the Hon'ble High Court was advantageous only to
the legal heirs of B.N.Hanumaiah and said order was not
beneficial to the L.Rs of said Smt.Muttamma. In fact,
Hon'ble High Court removed all the obstacles manipulated by
late B.N.Hanumaiah.
11. The defendants contended that the suit schedule
property originally stood in the name of Late Ponnuswamy
Modaliar and many proceedings were pending before the
Court since 1973 between Smt.Muttamma and late
B.N.Hanumaiah. It is continued to be in the name of
Smt.Muttamma. Defendants are paying tax. B.N.Hanumaiah
got khatha transferred to his name behind the back of
Smt.Muttamma. Smt.Muttamma died on 8.12.1982 leaving
16 O.S.No.7372/2010 & 7371/2011
behind defendants No.1 and 2 as her legal heirs. After the
death of Smt.Muttamma, defendants No.1 and 2 approached
the Corporation authorities to transfer the khatha to their
name. Since then they have been agitating before the
Corporation authorities to register the khatha to their name.
It is admitted that defendants No.1 and 2 executed Gift Deed
in favour of defendants No.3 and 4 on 22.10.2007 and
17.10.2007, and they are only gift deeds, they were not
made in pursuance of any consideration. Defendants No.1
and 2 executed said documents without receiving any
consideration. Hence, they have not made any wrongful gain
by such action.
12. Defendants No.2 and 3 have also admitted that
the police have registered complaint and initiated a criminal
case. The defendants have taken appropriate action against
the criminal proceedings. Defendants No.2 and 4 have
further pleaded that late Hanumaiah himself was not the
17 O.S.No.7372/2010 & 7371/2011
owner of property who had two wives. First wife
Puttalingamma had four children namely Nanjundappa,
Gowramma, Parvathamma, Laxmidevi and through second
wifeNanjundamma he had 7 children by name Jayamma,
sharadamma, Radha Kumar, Chandra Shekar, Gayathridevi,
Lalitha and Nagaraja i.e., plaintiff herein. Hence, the release
deed seems to have been executed by a few of L.Rs of
Hanumaiah, will not fetch any absolute right to plaintiff.
Hence, the suit filed by one of the legal heirs is not
maintainable in law. Said Hanumaiah had not made
declaration before any authorities that the defendants were
tenants under him in respect of suit schedule property. The
eviction petition HRC No. 1656/1985 filed by Hanumaiah was
withdrawn after realising that Smt.Muttamma and her legal
heirs are not tenants under him. Hanumaiah himself had not
acquired any right or title over the suit schedule property. As
such, the plaintiff cannot derive a better title through release
deed. There is no cause of action to the suit. Defendants
18 O.S.No.7372/2010 & 7371/2011
No.1 and 3 initially through their father Ponnuswamy
Modaliar, later on through their mother Smt.Muttamma
were/are in continuous possession of the suit property since
1949 and the defendants are in continuous possession of the
property for more than 60 years perfecting their title hostile
the interest of real owner. The alleged vendor
Mrs.B.Peacock had no valid authority under the alleged Sale
Deed in favour of Hanumaiah. Even otherwise the
defendants have been enjoying the property continuously
and uninterruptedly and they have perfected their title by
adverse possession and prays to dismiss the suit of the
plaintiff.
13. On the other hand, as noted supra, the
defendants No.1 to 4 have filed O.S.No.7371/2011 for
declaring that the plaintiffs are the absolute owners and
they have perfected their title by way of adverse possession
and consequential relief of injunction restraining the
defendant in that suit from disturbing the peaceful
19 O.S.No.7372/2010 & 7371/2011
enjoyment of the suit property by the plaintiffs. Plaintiffs
have asserted that the suit property is a piece of land in
Sy.No.16/2 of Berige Muddanahalli, Bengaluru North Taluk
later re-numbered as U-22 , New No.12, situated at 5th Cross,
Old Okalipuram, Bengaluru as annexed to the schedule,
measuring on the Eastern side 74 ½ , West by 28 ft, North
by 74 ½ ft and South by 60 ft, which was originally belonged
to one C.B.Oakley also known as Okalidore, who agreed to
sell the schedule property to Ponnuswamy Modaliar for
consideration of Rs.1,250/- dated 23.11.1949 and received
part sale consideration of Rs. 700/- and put said
Ponnuswamy Modaliar into possession and also permitted
him to put up construction of house and commercial building.
Plaintiffs No.1 and 2 are sons of Ponnuswamy Modaliar and
plaintiff No.3 is daughter-in-law of Ponnuswamy Modaliar and
plaintiff No.4 is grandson of Ponnuswamy Modaliar.
20 O.S.No.7372/2010 & 7371/2011
14. It is further submitted that Ponnuswamy Modaliar
had migrated to Bengaluru around 1948 with his friend
Narayanappa. Ponnuswamy Modaliar and Narayanappa were
looking out for a property to buy and settle down in
Bengaluru. They agreed to purchase suit schedule property
by paying balance consideration of Rs.550/- at the time of
registration as per agreement of sale dated 23.11.1949.
Later on Ponnuswamy Modaliar's friend Narayanappa decided
to carry on his business at Anekal and shifted to Anekal and
expressed his unwillingness to purchase the property and
requested Ponnuswamy Modaliar to buy the property on his
own and made a settlement with him. As per the said terms
of agreement, Ponnuswamy Modaliar constructed a house to
reside and run provision shop on the suit site. Unfortunately
C.B.Okaley suddenly died on Heart attack in the year 1949
without executing the sale deed. He had no issues. His only
legal representative was his brother Howard Okaley lived in
Madras, Ponnuswamy Modaliar requested him to execute
21 O.S.No.7372/2010 & 7371/2011
Sale Deed, who was dealing with properties of his brother
C.B. Okaley after his death. Howard Okaly requested
Ponnuswamy Modaliar to wait for some time and he would
execute Sale Deed after settlement of legal hurdles.
Thereafter, Ponnuswamy Modaliar constructed a big house
and continued to live there with his family since 23.11.1949.
15. Plaintiffs have further submitted that CITB took
over the property and made layout and allotted the sites to
private persons. However, the portion in which Ponnuswamy
Modaliar was living i.e., suit schedule property was
untouched by CITB. So Ponnuswamy Modaliar continued to
live there and later on requested BDA to regularise his
possession. Ponnuswamy Modaliar died on 24.12.1966.
Thereafter, his sons and wife continued in possession of the
property. Smt.Muttamma wife of Ponnuswamy Modaliar
constructed two houses for their sons Murugan, the plaintiff
herein who was running fire wood depot. In the year 1965
22 O.S.No.7372/2010 & 7371/2011
whole area including the area called Okalipuram fell into the
jurisdiction of Bengaluru City Corporation and they started
paying Corporation taxes and Corporation khatha was
transferred in the name of Smt.Muttamma. During the year
1981 plaintiffs and their mother Smt.Muttamma came to
know that suit schedule property was being attached and b
brought for auctioned in a Court proceeding. As one
Thippeswamy had filed suit for recovery of Rs.10,000/-
against Hanumaiah and also obtained an order before
Judgment. Suit was decreed and execution case
No.1659/1974 was filed and obtained an order of attachment
and sale of the suit property for recovery of decreetal
amount. Said Thippeswamy and Hanumaiah were total
strangers to plaintiffs and their mother. The plaintiffs'
mother filed objections/claim petition under Order XXI Rule
58 of CPC and obtained stay order on the ground that she
has been in continuous possession of suit property on her
23 O.S.No.7372/2010 & 7371/2011
own right. Said petition in Misc.No.358/1975 came to be
dismissed.
16. Meanwhile, plaintiffs have filed separate suit in
O.S.No. 415/79. Plaintiffs and their mother came to know
that said Hanumaiah was Court Ameen of this Court, had
managed to get Sale Deed from one Mrs.B.Peacock who had
nothing to do with the suit property in the year 1951. But he
did not make any attempt to take possession from the
plaintiffs or their mother as he was well aware that the
plaintiffs and their mother were in continuous possession of
the property for more than 25 years. The act of Hanumaiah
was a short cut and mischievous method to dispossess the
plaintiffs. Hanumaiah got filed a fictitious suit in the name of
Thippeswamy for a claim of Rs.10,000/- against Hanumaiah
and Hanumaiah remained ex-parte in that suit and allowed
Thippeswamy to obtain a decree against him. During
pendency of said O.S.No. 415/79 Smt.Muttamma also filed a
24 O.S.No.7372/2010 & 7371/2011
separate suit challenging the collusive decree for injunction
and also for the attachment order came to be raised. During
the pendency of that suit, Smt.Muttamma died, plaintiffs
were brought on record as her L.Rs. The Trial Court had
refused to grant the relief of declaration, plaintiff filed
R.F.A.No. 681/99 and it was disposed off by modifying the
decree of the trial Court by allowing the said appeal partly
and the Judgment of trial Court came to be set aside by
raising attachment and also further observed that the parties
are at liberty to place their contentions and the present
plaintiff is not precluded from showing that by adverse
possession, she had become the owner. However it is clear
that she was in possession of the property since long and she
was in possession on the date of suit.
17. Plaintiffs have further submitted that agreement
of sale evidences the fact that plaintiffs' father and mother
were in continuous possession of the suit schedule property
25 O.S.No.7372/2010 & 7371/2011
since 23.11.1949 and subsequently the plaintiffs are in
continuous possession and enjoyment of the suit property for
more than 60 years. The plaintiffs have invested lot of
money to develop the lands and they have perfected their
title by way of adverse possession. Hanumaiah had never
taken any action to the possession of the schedule property
from Smt.Muttamma and her children. Only recently his son,
the defendant has filed a suit for possession in O.S.No.
7372/2010 which is highly belated one. However, plaintiffs
having been enjoying openly, publicly, peacefully without any
hindrance, hostile to the interest of real owner for more than
60 years, have perfected their title by way of adverse
possession. The khatha to the property stood in the name
of their mother since the inception of Corporation. The
defendant has managed to get the khatha transferred to his
name, which has no consequence. Hence, plaintiffs have
constrained to file this suit in respect of suit schedule
property.
26 O.S.No.7372/2010 & 7371/2011
18. The defendant i.e., plaintiff in O.S.No.7372/2010
has filed written statement wherein he has not only denied
each and every allegations made in the plaint, but also set-
up a defence similar to that of his claim made in
O.S.No.7372/2010. Besides defendant has submitted that
there is no cause of action to file this suit. The court fee paid
is insufficient and inadequate. The suit is also bad for mis-
joinder of parties because the plaintiffs have not made
daughter of Ponnuswamy Modaliar as party to the
proceedings, who has been made as fifth defendant in
O.S.No.7372/2010.
19. Besides defendant has submitted that he is the
absolute owner of the suit property in view of death of his
father and the execution of release deed by the other L.Rs of
deceased Hanumaiah. The possession of plaintiffs is illegal,
unauthorised and they cannot continue in possession as their
claim of alleged adverse possession has been negativated by
27 O.S.No.7372/2010 & 7371/2011
all the Courts including the Hon'ble High Court of Karnataka,
is only with respect of the possession of L.Rs of Muttamma
and further all the Courts have held that they cannot be
evicted except by due process of law. The defendant being
the absolute owner has got legal right to evict the plaintiffs
and he has already filed O.S.No.7372/2010 as against the
plaintiffs on the file of this Court seeking appropriate relief.
The alleged gift deeds are void documents and they are
illegal and the plaintiffs do not derive possession out of said
void gift deeds. Therefore, defendant has prayed to dismiss
the suit of plaintiffs with exemplary costs.
20. On the basis of the pleadings of parties in both
the suits, the following issues have been formulated:-
ISSUES IN O.S.No.7372/2010
(1) Whether plaintiff proves his title over the
suit property?
(2) Whether the plaintiff proves that the
defendants are tenants?
28 O.S.No.7372/2010 & 7371/2011
(3) Whether the plaintiff proves that the gift
deeds executed by defendants No.1 and
3 in favour of defendants No.2 and 4 on
22.10.2007 are illegal, null and void?
(4) Whether the plaintiff is entitled for
possession?
(5) Whether the defendants 2 to 4 prove
that Ponnuswamy Modaliar is the
absolute owner of the suit schedule
property on the strength of an
agreement of sale dated 23.11.1949
executed by Mr.C.B.Okaly as pleaded in
para 20 and 21 of written statement?
(6) Whether the defendants prove that they
have perfected their title over the suit
property by means of adverse
possession?
(7) What order or decree?
ISSUES IN O.S.No.7371/2011
(1) Whether plaintiffs prove their title and
possession over the suit property?
(2) Whether the plaintiffs prove that they
have perfected title over the suit property
by means of adverse possession?
29 O.S.No.7372/2010 & 7371/2011
(3) Whether the defendant proves that late
Ponnuswamy Mudaliar was the tenant
under late B.N.Hanumaiah?
(4) Whether the plaintiffs prove cause of
action?
(5) Whether the suit is bad for non-joinder of
Smt.Kuppamma D/o. of late Ponnuswamy
Mudaliar ?
(6) Whether the suit is in time?
(7) Whether the court fee paid is sufficient ?
(8) What order or decree ?
21. Since O.S.No.7371/2011 is clubbed in
O.S.No.7372/2010, the plaintiff in O.S.No.7372/2010 in order
to substantiate his claim he is examined as P.W.1 and
adduced documentary evidence from Exs.P.1 to Ex.P.64.
Meanwhile, plaintiff No.2 in O.S.No.7371/2011 i.e.,
defendant No.2 in O.S.No.7372/2010 is got examined as
D.W. 1 and adduced documentary evidence from Exs.D.1 to
D.33 and also got examined one supporting witness by name
30 O.S.No.7372/2010 & 7371/2011
Perumal as D.W.2 and got marked Exs.D.34 and 35 through
D.W.2.
22. After closure of evidence, I have heard the
counsel for respective parties in both the suites and perused
the material placed on record.
23. My findings on the aforesaid issues in
O.S.No.7372/2010 are as under:
Issue No.1: In the Affirmative.
Issue No.2: In the Negative.
Issue No.3: In the Affirmative.
Issue No.4: In the Affirmative.
Issue No.5: In the Negative.
Issue No.6: In the Negative.
Issue No.7: As per the final
order.
24. My findings on the aforesaid issues in
O.S.No.7371/2011 are as under:
Issue No.1: In the Negative.
31 O.S.No.7372/2010 & 7371/2011
Issue No.2: In the Negative.
Issue No.3: In the Negative.
Issue No.4: In the Negative.
Issue No.5: In the Affirmative.
Issue No.6: In the Negative.
Issue No.7: In the Affirmative.
Issue No.8: As per the final order,
for the following :
REASONS
25. Issue No.1, 5 & 6 in O.S.No.7372/2010 and
issues No.1, 2 & 6 in O.S.No.7371/2011 :- These issues
being interlinked with each other, in order to avoid repetition
of discussions, are taken up together for consideration.
26. Plaintiff being the son of late B.N.Hanumaiah is
claiming his ownership under the release deed executed by
other legal heirs of B.N.Hanumaiah and sought for delivery of
possession of schedule property from the defendants. The
plaintiff is relying on his oral and documentary evidence
placed on record. P.W.1 has reiterated the averments made
32 O.S.No.7372/2010 & 7371/2011
in the plaint in the course of examination-in-chief by way of
affidavit. It is established from the cross-examination of
P.W.1 that Mrs.B.Peacock had purchased the schedule
property from Mr.Okalye. Mrs.B.Peacock did not evict
Ponnuswamy Modaliar at the time of Sale Deed in favour of
B.N.Hanumaiah, the father of plaintiff. Even the father of
plaintiff had also not evicted Ponnuswamy Modaliar and
others, but he was demanding possession. The khatha in the
name of father of plaintiff was made in the year 2005. Till
then it was in the name of mother of defendants No.1 and 2.
Since 1960 the father of the plaintiff was paying taxes to the
revenue authorities. Admittedly, Mrs.B.Peacock had paid
taxes as per Ex.P.17. The father of plaintiff had two wives
by name Smt.Puttalingamma and Smt.Nanjamma. There are
four children namely Nanjundappa, Gowramma,
Parvathamma, Laxmidevi born to first wife Puttalingamma,
but all of them have died 15 to 20 years back. It is also
admitted that Smt.Muttamma had filed O.S.No.7123/1980
33 O.S.No.7372/2010 & 7371/2011
against father of plaintiff and Thippeswamy. The schedule
property was attached in the suit filed by Thippeswamy, who
made attempts to sell the schedule property in public
auction, and Smt.Muttamma, the mother of defendant No.1
had filed an application as she was in possession of the
property. The order of attachment of suit property was
raised by the Hon'ble High Court.
27. The father of plaintiff died on 24.8.1984.
Ponnuswamy Modaliar and his family were/are in possession
of the suit schedule property since 1949, but according to
P.W.1 they are in illegal possession. The father of plaintiff
had filed HRC case against Smt.Muttamma and it was
withdrawn. There is no reference in Ex.P.2 release deed
about the four children born to father of plaintiff through his
first wife.
34 O.S.No.7372/2010 & 7371/2011
28. It is evidenced from further cross-examination of
P.W.1 that the father of plaintiff recovered the rents up to
1972 and he had maintained accounts, but the plaintiff has
not recovered the rents from the defendants even he has not
filed any suit for recovery of arrears of rent. P.W.1 has
admitted that the revenue officer, Corporation, Bengaluru
had issued an endorsement dated 22.8.1975 as per Ex.D.1.
But he does not know another endorsement dated 12.3.1976
issued by the said authority to the effect that the khatha will
be continued in the name of holder until only, it is decided by
the Court. Admittedly, Smt.Muttamma had preferred
R.F.A.No. 681/1999 and prior to that she had filed
O.S.No.415/1979. The father of plaintiff died during the
pendency of that suit and his L.Rs Smt.Nanjamma,
Smt.Jayamma, Smt.Sharadamma, Chandrashekar, Nagaraja
and Smt.Laxmidevi were brought on record. He was also a
party in R.F.A. Whereas said Laxmidevi, Sharadamma and
35 O.S.No.7372/2010 & 7371/2011
Jayamma are not parties to Ex.P.2, the release deed, as they
were no more.
29. P.W.1 has further admitted that defendants No.1
and 2 were in possession of the suit schedule property even
during survey as per Ex.P.5. Defendant has constructed RCC
building and he is residing there. But P.W.1 was said to have
lodged complaint in that regard before the police. Neither
father of plaintiff nor the plaintiff had challenged the
acquisition made by Bangalore Development Authority. It
reveals from further cross-examination of P.W.1 that the
father of plaintiff had filed HRC case against Murugan,
Umapathy and another. They exhibited rent receipts in
O.S.No.358/1975 and other several cases. But, not got
marked any HRC case filed by his father against the
defendants. Admittedly, the counterfoil of rent receipts at
Ex.P.30 does not bear the signature of either first defendant
or his father. According to P.W.1 those rent receipts were
36 O.S.No.7372/2010 & 7371/2011
issued by his father. At another stretch P.W.1 has stated
that some of the receipts in Ex.P.30 were issued by
predecessor in title. The first defendant had also paid rents
to his father. He is not certain about said receipts produced
in this case. The original Sale Deed dated 23.7.1951 was
pledged with late L.Nagarathnamma by his father and they
got the same back. The said Sale Deed is in their custody.
But he has to search that document. P.W.1 has not
produced the notice produced by the Advocate D'Silva to
Mrs.B.Peacock. The name of predecessor is not mentioned
in the Sale Deed executed by Mrs.B.Peacock in the year
1958. The Sale Deed does not disclose regarding collection
of rent from Ponnuswamy Modaliar. P.W.1 has no
knowledge that Mrs.B.Peacock authorized his father to collect
rent. The photographs at Ex.P.55 reflects the recent
construction of building on the suit property. But it was
before filing of the suit. The defendant No.1 and his mother
were in possession of two portions and they were paying rent
37 O.S.No.7372/2010 & 7371/2011
in respect of both the portions. Each of the portion is 100
Sq. ft as visible in photographs at Ex.P.53. Consruction area
is to the extent of 2,000 Sq.ft. Both the potions were
constructed about six years back. They have not preferred
appeal against the Judgment and Decree passed in O.S.No.
7123/1980. The plaintiff has not produced the death
extracts of legal heirs of his father as deposed by him.
30. D.W.1 has shown his ignorance about various
facts as suggested to him in the course of cross-examination.
As such, P.W.1 does not know the entire extent of land
owned by Okaley in Sy.No.16/2 and father of defendants
No.1 and 2 by name Ponnuswamy Modaliar has been
inducted as tenant and when khtha came to be changed in
respect of property bearing Old No.U-22 and new No.12.
P.W.1 does not know whether Okaley died in the year 1949
and the land bearing Sy.No. 16/2 was mortgaged with
Devanga Bank by late Okaley. D.W.1 has shown his
38 O.S.No.7372/2010 & 7371/2011
ignorance about the permanent injunction granted against
his father in O.S.No. 7193/1980. D.W.1 does not remember
the date of death of the 4 children of his father through his
first wife. Plaintiff has not produced any records to show
that the said 4 children of his father were no more as on the
date of execution of release deed by other legal heirs in his
favour. It is also not known to P.W.1 whether Mrs.B.Peacock
had asked Mr.Ponnu Swamy Modaliyar to hand over the
vacant possession of the suit schedule property and his
father after the purchase had demanded Mr. Ponnu Swamy
Modaliyar, his wife and children.
31. On the other hand, D.W. 1 has filed his affidavit
in lieu of his examination-in-chief. It is evident from cross-
examination of D.W.1 that his grandfather late Ponnuswamy
Modaliar was residing in portion of schedule property. D.W.1
has not verified the documents exhibited by the plaintiff in
this suit. Said Ponnuswamy Modaliar died in the year 1966
39 O.S.No.7372/2010 & 7371/2011
as deposed by D.W.1. however, it is admitted that after the
death of his grand-father, Smt.Muttamma and her children
defendants No.1, 3, 4 and 5 were continued to reside in
schedule property. Thippeswamy filed O.S.No. 486/1973 for
recovery of Rs.10,000/- against B.N.Hanumaiah. Said suit
was decreed. According to D.W.1, said decree is collusive
decree. Said Thippeswamy filed Ex.Case No.1659/1974 and
his grand-mother filed execution proceedings for raising the
attachment order passed in that execution case. But said
application came to be dismissed as his grandmother
Smt.Muttamma had no right over the schedule property.
Thereafter, grandmother of D.W.1 filed O.S.No. 415/1979
against Thippeswamy and B.N.Hanumaiah for injunction and
that suit was also dismissed. D.W.1 has shown his ignorance
about the appeal preferred by his grandmother and disposal
of the same. Meanwhile, Smt.Muttamma and her children
together filed another suit O.S.No. 7193/1980 for the relief of
injunction and other reliefs against Thippeswamy and
40 O.S.No.7372/2010 & 7371/2011
B.N.Hanumaiah and during the pendency of that suit
Smt.Muttamma and B.N.Hanumaiah died and their legal heirs
were brought on record in that suit. It is an admitted fact
that the trial Court granted the relief of injunction and relief
of declaration, raising attachment was dismissed. The
appeal in R.F.A.No. 681/1999 preferred against the
Judgment was partly allowed on 7.7.2006 and order of
attachment was raised. After disposal of the said appeal,
the defendants constructed new house by dismantling old
house including the open space of the schedule property,
without obtaining the approved plan from BBMP. It is also
an admitted fact that immediately after coming to know
about such construction, plaintiff lodged complaint in
Srirampura Police Station against the defendants. As
admitted by D.W.1, first and third defendants have executed
registered gift deed in respect of defendants No.2 and 4
respectively in respect of two portions of the suit schedule
property. A criminal case was filed against the defendants by
41 O.S.No.7372/2010 & 7371/2011
the plaintiff is still pending before the Criminal Court. The
khtha in respect of suit schedule property is not transferred
in the name of either first defendant or third defendant in
pursuance to the Gift Deed. Whereas, the khatha has been
transferred in the name of plaintiff on the basis of release
deed by BBMP.
32. It is evident from further cross-examination of
D.W.1 that Ex.D.1 is executed in respect of Sy.No. 16/2, but
he does not know the total extent of Sy.No.16/2 and
property number of other properties owned by C.B.Okaley.
Even D.W.1 cannot say the exact extent of land purchased
by his grandfather and Narayanappa in Sy.No.16/2. But the
said portion measuring 2 acres 44 guntas is bounded by East
and West - Road, South - property of Amruthappa, North by
road as mentioned in Ex.D.1 - Agreement. D.W.1 shown his
ignorance about his parents filed suit for specific
performance against father of plaintiff in respect of suit
42 O.S.No.7372/2010 & 7371/2011
schedule property. But, on the basis of possession, khatha
was being issued by Corporation as occupant as per Exs.D.2,
D-3, and D-5.
33. D.W.2 being neighbour of defendants has
deposed that he is family friend of defendants for more than
50 to 60 years. Defendants are enjoying the suit properties
from past 60 years and also exhibited his marriage invitation,
voter's I.D. to show that he is residing at the suit schedule
property. Whereas, it is evidenced from the cross-
examination of D.W.2 that the house of defendants and
himself are adjacent to each other. As deposed by D.W.2
the address of defendants at is No.19, 5th Main Road,
Srirampuram, Parallel to Okalipuram, Bengaluru. D.W.2 did
not work when defendants were making repairs to their
houses. The marriage invitation card produced by him was
hanged in his house by putting frame to it. The invitation
card at Ex.P.35 is showing his address at Ramachandrapura.
43 O.S.No.7372/2010 & 7371/2011
The election I.D.Card at Ex.D.34 was issued in the year
2008.
34. The defendants are very much relying on sale
agreement dated 23.11.1949 at Ex.D.1. Accordingly,
C.B.Okaley S/o. Edward Okaley was agreed to sell 2 ½
guntas of land out of Sy.No. 16/2 of Muddenahalli, Kasaba,
Bengaluru to Narayanappa S/o. Venkatappa and
Ponnuswamy Modaliar S/o. Raghava Modaliar. Ex.D.2 -
Memorandum of deposit of documents of title relating to
immoveable property was executed between C.B.Okaley and
Devanga bank Ltd., thereby, mortgaged the properties as
described in schedule 1 and 2 for Rs.3,000/- on 9.6.1948
prior to execution of agreement of sale at Ex.D.1. Ex.P.22 is
the registered sale deed dated 13.12.1958 which discloses
that Mrs.B.Peacock widow of late B.P.Benjamin Herbert
Peacock also known as B.Peacock Administratrix to the estate
of her later husband, sold a piece of land measuring on the
44 O.S.No.7372/2010 & 7371/2011
East 74 ½ ft and bounded by Road, allowed by the late
Major Okaley and for right of entry measuring on the South
60 ft and bounded by land and building belonging to
Amruthappa measuring on the west 29ft and bounded by
land and building of C.B.Okaly and on North measuring 75 ½
ft bounded by land of Mr.Mohd.Ghouse whole of the said
piece of land Sy.No.16/2 to B.N.Hanumaiah S/o.
Narayanappa i.e., the father of plaintiff. As recited in the
Sale Deed husband of Mrs.B.Peacock was Administrator of
property of Okaley who had obtained letters of
administration from the district Judge, Civil Station,
Bengaluru on 13.2.1953 in respect of said schedule property
and said Administrator Mr.B.Peacock was permitted to sell
schedule land for consideration of Rs. 13,000/- in pursuance
of agreement dated 10.11.1958. Said B.H.Peacock on
2.1.1952 died leaving behind his widow i.e., Mrs.B.Peacock.
As such, Mrs.B.Peacock executed said Sale Deed in favour of
father of the plaintiff.
45 O.S.No.7372/2010 & 7371/2011
35. On the other hand, Mrs.B.Peacock issued notice
to Ponnuswamy Modaliar through her Advocate J.L.D' Selva
as per letters dated 11.6.1953 and 29.4.1953 at Exs.P.20 and
21 respectively. But copy of notice is not exhibited so as to
take into consideration Ex.P.42, the certified copy of Sale
Deed dated 23.7.1951 discloses that the brother of
C.B.Okaley - Mr.F.Howard Okaley as Executor of the Will of
late Major C.B.Okaley sold a piece of land measuring East 74
½ ft bounded by Road allotted by late Major C.B. Okaley in
Sy.No.16/2 as described in the schedule in favour of
Mrs.B.Peacock.
36. B.N.Hanumaiah filed O.S.No. 1155/1961 against
C.I.T.B. for permanent injunction on 15.11.1961. But the
said suit came to be dismissed for default on 9.9.1966 as per
the Order Sheet at Ex.D.6. Meanwhile, B.N.Hanumaiah filed
Misc.petition No.330/1966 for setting aside the ex-parte
46 O.S.No.7372/2010 & 7371/2011
order of dismissal passed in O.S.No. 1155/1961 on
4.10.1966. But, the said Misc. petition also dismissed on
4.12.1967 as per Ex.D.7-Order Sheet. Even
Misc.No.265/1968 filed by B.N.Hanumaiah against CITB also
dismissed on 9.3.1970 as per the Order Sheet at Ex.D.8.
Ex.P.19 is an endorsement dated 22.8.1975 issued by
Assistant Revenue Officer with reference to application
submitted by Muttamma dated 19.8.1975 informing that the
khatha in respect of property No.12 was standing in her
name. Ex.P.23 an endorsement dated 22.5.1976 was issued
by A.R.O. in response to application of B.N.Hanumaiah dated
15.3.1976n for issuing copy of Order Sheet dated 20.2.1976
and 6.3.1976. Thereby informed that copies of any orders
are issued only from the Commissioner. Besides an
endorsement at Ex.P.24 dated 25.5.1977 informing that the
khatha for house bearing No.12 in Old Okalipuram,
Bengaluru is in the name of B.N.Hanumaiah in the register of
the Corporation of Bengaluru.
47 O.S.No.7372/2010 & 7371/2011
37. The particulars of attachment of immoveable
property in O.S.No. 486/73 as furnished by the Bailiff, the
suit property was attached in that suit on 20.2.1973. Ex.P.26
the certified copy of registered mortgage deed discloses that
on 13.8.1959 B.N.Hanumaiah mortgaged the suit schedule
property for a sum of Rs.1,000/- to L.Nagarthnamma W/o.
K.M.A.Laxminarayana Shetty.
38. Smt. Muttamma filed Misc.case No.358/1975
against H.Thippeswamy and B.N.Hanumaiah u/o. 38 Rule 8
r/w/o.21 Rule 58 of CPC. Seeking an investigation into the
claim of property attached before Judgment in O.S.No.
486/1973, which was sought to be brought to sale in a
Ex.1659/74. The said petition was rejected on merits on
7.12.1978 as per Ex.P.27.
39. Ex.P.30 is said to be counter foil for the year
1950 maintained by Mrs.B.Peacock for having received rent
48 O.S.No.7372/2010 & 7371/2011
from Ponnuswamy Modaliar. Except the self-serving counter-
foil nothing is placed on record to show that the said
Ponnuswamy Modaliar was tenant under B.Peacock. The tax
paid receipts at Exs.P.31 to 39 go to show that
B.N.Hanumaiah paid the tax in respect of the property No.12
for the period from 1975 to 1985. On the other hand,
B.N.Hanumaiah was submitted voluntary declaration before
the Rent Controller under the Karnataka Rent Control (3rd
Amendment Ordinance) Act, 1976 on 12.12.1976 as per
Ex.P.40, wherein it is declared that P.Murgam and Muttamma
were the tenants under B.N.Hanumaiah. Ex.P.41 is the
endorsement issued by Enquiry Officer, City Survey,
Bengaluru to B.N.Hanumaiah in respect of property No.12 for
the purpose of survey.
40. Ex.P.43 order sheet in Misc. No. 120/1952-53
discloses that B.Peacock filed that petition against
B.N.Hanumaiah as per order on I.A.No.2 dated 22.11.1958.
49 O.S.No.7372/2010 & 7371/2011
The petitioner B.Peacock was permitted to sell the vacant
site mentioned in the letters of Administration to the
intending purchaser subject to deposit of 2/3rd of sale
proceeds towards the share of her four children. As per order
dated 15.1.1959 B.N.Hanumaiah being the purchaser had
deposited the 2/3rd share of the sale price and also paid the
balance 1/4th share before the Court.
41. Ex.P.44 is the certified copy of Judgment and
decree passed in R.A.No.210/1975. The said appeal was
filed by 1st defendant herein against B.N.Hanumaiah and
Smt.L.Nagarathnamma challenging the Judgment and Decree
dated 30.8.1975 passed in O.S.No. 1019/1973 on the file of
the 4th Addl. Munsiff, Bengaluru. The said suit was filed by
P.Murugan for specific performance of agreement of sale in
respect of the schedule property on the basis of alleged
agreement of sale dated 21.1.1973. The trial Court came to
the conclusion that the agreement of sale was a result of
50 O.S.No.7372/2010 & 7371/2011
fraud played by the plaintiff. But, ordered the 1st defendant
to refund advance amount received from the plaintiff. The
said appeal came to be dismissed. This fact itself shows that
the 1st defendant has no right over the suit property as
against father of the plaintiff. It is an admitted fact that the
sale agreement dated 23.11.1949 has not at all been
enforced by the concerned parties.
42. Ex.P.63 is the certified copy of order on I.A.No.1
in O.S.No. 415/1979 filed by Smt. Muttamma against
Thippeswamy and B.N.Hanumaiah for temporary injunction
came to be dismissed on merits on 23.8.1979 as the plaintiff
was failed to make out a prima facie case. Meanwhile
Muttamma filed M.A.No. 107/79 before the Prl. Civil Judge,
Bengaluru City. That Misc. Appeal was also dismissed on
merits on 12.11.1980 as per the certified copy of order at
Ex.P.64.
51 O.S.No.7372/2010 & 7371/2011
43. The certificates of death at Ex.P.57 and P.58
disclose that Puttalingamma and H.Nanjundappa, the
daughter and son respectively of late B.N.Hanumaiah expired
on 29.3.1984 and 7.10.1985 respectively. The Encumbrance
Certificate at Ex.P.59 reflects the sale transaction between
Mr.F.Howard and B.Peacock dated 23.7.1951 and
Mrs.B.Peacock and B.N.Hanumaiah dated 13.12.1958 in
respect of suit property in Sy.No.16/2 as described in the
schedule annexed to the plaint. Ex.P.60 and P.61 disclose
that the Release Deed Ex.P.2 dated 17.4.2010 was executed
by children of B.N.Hanumaiah through their Power of
Attorney Smt.Radha Kumar in favour of plaintiff in respect of
the suit schedule property.
44. As per Ex.P.5 ADLR issued certificate in the name
of B.N.Hanumaiah confirming the measurement of the suit
site. Mrs. B.Peacock requested the Tahasildar Bengaluru
North Taluk in writing as per Ex.P.9 on 22.12.1958, thereby
52 O.S.No.7372/2010 & 7371/2011
informed that she had purchased land Sy.No. 16/2 from
F.Howard through registered Sale Deed dated 2/8/1951 and
sold the same to B.N.Hanumaiah through registered Sale
Deed dated 18.12.1958 and requested to transfer the khatha
in respect of the said property to the name of
B.N.Hanumaiah. The khatha certificate was issued by BBMP
in favour of B.N.Hanumaiah in respect of Municipal New
26-51-12 on 28.7.2005 as per Ex.P.8. The property tax was
also paid to the BBMP in the name of B.N.Hanumaiah in
respect of property No.12 as per Ex.P.12 and P.13. Khatha
extract at Ex.P.1 dated 31.3.2010 discloses that the father of
the plaintiff was owner of Municipal New No.12. In pursuance
of Deed of Release the name of plaintiff is brought on record
of BBMP as per khatha extract and khatha certificate at
Exs.P.3 and P.4 respectively.
45. B.D.A. has filed Misc. case No. 43/1981 against
H. Thippeswamy and B.N.Hanumaiah in the Court of 16th
53 O.S.No.7372/2010 & 7371/2011
Additional City Civil Judge, Bengaluru under O.21 Rule 58
CPC questioning the legality of attachment of schedule
property effected in E.P.38/80 as per decree passed in
O.S.No. 486/1973, on enquiry the said petition was dismissed
with costs on 12.11.1984 as per order at Ex.P.15, wherein it
is observed that Mrs.B.Peacock executed Sale Deed after
obtaining necessary permission under guardian and Wards
Act from the Court, in favour of B.N.Hanumaiah. As recited
in the Sale Deed vendor purchased the said property from
Howard Oakley, who was the sold executor of the properties
that belonged to Major late C.B. Oakley who was the
khatedar in respect of Sy.No.16/2 under registered Sale Deed
dated 23.7.1951. The property involved in the said sale
transaction was not the subject matter of acquisition as
alleged by the B.D.A. Further B.Peacock was dealing with
the petition premises as its owner and has legally conveyed
the same in favour of B.N.Hanumaiah and put him in
possession of the same.
54 O.S.No.7372/2010 & 7371/2011
46. Ex.P.16 is the certified copy of Judgment and
Decree in O.S.No. 7123/1980. That suit was filed by
Muttamma against Thippeswamy and B.N.Hanumaiah for
declaration of title and injunction on 8.2.1979 in respect of
the schedule property. During the pendency of the said suit,
the plaintiff and defendant No.2 expired and their legal heirs
were brought on record. The said suit was disposed off after
full-fledged trial, thereby the suit of the plaintiff was decreed
in part and the defendants were restrained from interference
of any kind on the suit property till the plaintiff is evicted in
due course of law. Whereas, the relief of declaration of title,
raising attachment order dated 20.2.1973 in O.S.No.
487/1973 was dismissed on 23.6.1999.
47. Meanwhile, the defendants No.1, 3 and 5 herein
who were plaintiffs in that suit were preferred R.F.A.No.
681/1999 against H. Thippeswamy and L.Rs of
B.N.Hanumaiah. The plaintiff herein was respondent No.2
55 O.S.No.7372/2010 & 7371/2011
(e) in that appeal. The Hon'ble High Court was pleased to
allow the appeal partly and setting aside the portion of the
Judgment dated 23.6.1999 passed in O.S.No.7123/1980
which denies the relief of raising attachment, it is ordered
that the order of attachment passed on 20.2.1973 in O.S.No.
486/1973 attaching the plaint schedule property was raised
as only one of the reliefs sought for by the appellants can be
granted in the appeal. The respondents in that appeal have
not challenged the Judgment of the trial Court. As observed
in para 9 of the Judgment, though the respondent No.2
claimed title to the property, no documents having been
produced in evidence and the plaintiff's claim itself being that
he is not the owner of the property, the question of adverse
possession against him does not arise. The counsel for the
plaintiff herein has submitted in that appeal certain
documents have been produced by the defendant No.2 in the
trial Court, but they have not been exhibited and they have
not been kept in the lower Court records. In the absence of
56 O.S.No.7372/2010 & 7371/2011
admission of the documents in evidence, the court is not in a
position to determine the claim of defendant No.2 that he
was the owner of the property. Therefore, there being no
evidence to show the ownership of the property by the
defendant No.2, the question of granting declaration of title
in favour of the plaintiffs against the defendant No.2 in this
case does not arise. In case, subsequently there is any suit,
the parties are at liberty to place their contentions and the
present plaintiff is not precluded form showing that by
adverse possession she had become the owner. However, it
is clear that she was in possession of the suit property since
long, even on the date of suit.
48. On the other hand, the defendants have also
produced copy of endorsement issued by ARO as per Exs.D.2
and D.4 dated 22.8.1975, similar to that of Exs.P.18 and
D.19 respectively. The tax paid receipt at Ex.P.3 discloses
that Muttamma paid the tax in respect of property No.12 on
57 O.S.No.7372/2010 & 7371/2011
13.3.1978. The property tax assessment register at Ex.D.5
discloses that the said Muttamma was khatedar in respect of
property No.12 in the year 1974.
49. The defendants have exhibited notice for public
auction of immoveable property attached in Ex.No.38/1980
fixing the date of public auction on 2.1.1981 as per Ex.D.10.
Ex.D.11 is an order sheet HRC No.1556/1985 filed by
B.N.Hanumaiah against 1st defendant herein in the Court of
Small Causes at Bengaluru City. Ex.D.13 is postal
acknowledgment dated 8.4.1974 addressed to Muttamma as
khata holder of property old No.U-22 and New No.12 by
ARO. Exs.D.14 and D.15 are similar to that of Exs.P.28 and
P.15.
50. Ex.D.16 agreement dated 24.11.1966 in between
G.Narayana and Smt.Gangamma is no way concerned to the
suit schedule property, as such, the rough plan at Ex.D.17
58 O.S.No.7372/2010 & 7371/2011
and 18 are also irrelevant to the present suit. Ex.D.19
discloses that second defendant is residing at No.22,
Okalipuram. Exs.D.20 and D.21 are wedding invitation cards,
which disclose the address of first and second defendants at
Ramachandrapuram. But do not disclose the complete
address of the defendants. Ex.D.22 passbook of Canara
Bank relating to 1st defendant, which disclose his address at
U-22, Okalipuram. Ex.D.23 is the passbook of Gangamamma
wife of 1st defendant. As per Exs.D.24 and D.25, Muttamma
and Ponnuswamy Modaliar died on 8.12.1982 and
26.12.1966 respectively. Exs.D.26 to D.30 go to show that
the tax in respect of property No.12 was paid in the name of
B.N.Hanumaiah as khatedar as admitted by D.W.1, there is
over-writing/correction of name of khatedar on Ex.D.26, 28
and 29. whereas, Exs.D27 and D.30 are in the name of
B.N.Hanumaiah. The identity card of second defendant at
Ex.D.32 shows his address at U-22, Old Okalipuram.
59 O.S.No.7372/2010 & 7371/2011
51. Ex.P.33 - an endorsement issued by the Assistant
Revenue Officer, BMP dated 27.4.2007 discloses that
defendants No.1 and 3 submitted an application for transfer
of khatha in their name in respect of suit schedule property.
Exs.P.34 and 35 disclose that P.W.1 is resident of 5th Main
Road, Srirampura since 1966.
52. It is proved from the evidence on record adduced
by both the parties that the descriptions of suit property in
the suit schedule in both the suits are dissimilar. Admittedly
one Sri. C.B.Okaly, S/o Edward Okaly was the owner of the
land Sy.No.16/2 including suit schedule property in dispute.
The said C.B.Okaly entered into agreement of sale with
Narayanappa and Ponnuswamy Modaliar as per Ex.D1 on
23.11.1949 and put the vendees in possession of property
measuring 2/12 guntas of land out of Sy.No.16/2.
Meanwhile that C.B. Okaly was died in the year 1949 itself.
Thereafter, the brother of deceased C.B.Okaly by name
60 O.S.No.7372/2010 & 7371/2011
Howerd Okaly as an executor of the Will of deceased
C.B.Okaly had sold the piece of land in Sy.No 16/2 through
registered sale on 23.7.1951 bounded by road as described
in the schedule at Ex.P.42 in favour of B.H.Peacock who died
on 2.1.1952. Meanwhile the widow of B.H.Peacock by name
Mrs. Peacock being administratrix to the estate of her late
husband, after obtaining permission from the competent
court in miscellaneous No.120/1952-53 under Guardian and
Wards' Act, in favour of the father of the plaintiff through
registered sale deed dated 13.12.1958 at Ex.P.22. Both the
aforesaid transactions are reflecting in encumbrance
certificate at Ex.P.59. The said Mrs.B.Peacock subsequent to
execution of the sale deed had requested the Tahasildar,
Bangalore North Taluk in writing as per Ex.P.9 dated
22.12.1958 to transfer khatha in respect of the said property
to the name of father of the plaintiff B.N.Hanunaiah. The
father of the plaintiff being owner had mortgaged suit
schedule property through registered mortgage deed dated
61 O.S.No.7372/2010 & 7371/2011
12.8.1959 in favour of L.Nagarathnamma for Rs.1000/-.
Subsequently one H.Thippeswamy filed O.S.No.486/1973
against father of the plaintiff for recovery of sum of
Rs.10,000/-, the said suit came to decreed and then
Execution No.1659/1974 was filed and the suit property
under the ownership of B.N.Hanumaiah attached in the said
suit was brought for sale in public auction. The mother of 1st
defendant after coming to know about attachment and sale
of the said property had filed Miscellaneous No.358/1975
under order 38 rule 8 r/w order XXI R 58 of C.P.C. for raising
the order of attachment of immovable property before
judgment in the said suit. The said petition came to be
dismissed on merits as per Ex.P.27. Thereafter the mother
of the 1st defendant filed O.S.No.415/1979 against the said
H.Thippeswamy and father of the plaintiff and sought of
injunction under I.A.No.1 which ncame to be dismissed on
merits on 23.8.1979. Even M.A.107/1979 filed by her also
came to be dismissed on merits on 12.11.1980
62 O.S.No.7372/2010 & 7371/2011
53. In fact the father of the plaintiff filed O.S.N0.
1155/1961 against CITB for permanent injunction came to be
dismissed for default on 9.9.1966. Even Mis.No. 330/66 filed
by him for setting aside the dismissal order passed in that
suit was also dismissed. The father of the plaintiff filed
Mis.No. 265/68 On 4.12.1969 against CITB which was also
dismissed on 9.3.1970. As per endorsement issued by the
Assistant Revenue Officer dated 22.8.1975 the khatha in
respect of the suit schedule property was in the name of
Muthamma. Whereas another endorsement issued by the
Assistant Revenue officer dated 22.5.1976 discloses that the
father of the plaintiff was katha holder of house bearing No.
12 in the register of Corporation of Bangalore.
54. Subsequently, the mother of the 1st defendant
filed O.S.No.1019/1973 for specific performance of
agreement of sale in respect of the suit property on the basis
of alleged agreement of sale against the father of the plaintiff
and the said mortgagee - Smt.L.Nagarathnamma. After
63 O.S.No.7372/2010 & 7371/2011
fullfledged trial, the court came to conclusion that the
said agreement of sale dated 21.1.1973 was resulted
fraud played by the plaintiff i.e., 1st defendant herein
and ultimately dismissed the suit. Meanwhile the
defendants had challenged the judgment and decree passed
in the said suit, in R.F.A.No. No.210/1975. That appeal also
came to be dismissed 13.10.1976 as per Ex.P.44. It is an
admitted fact the sale agreement dated 23.11.1949 has not
at all been enforced by the concerned parties for the reasons
best known to them. It is also proved from the documentary
evidence on record that the father of the plaintiff had been
paying property taxes during the period form 1975-1985.
Besides the father of the plaintiff was submitted declaration
in prescribed form before the concerned authorities declaring
that the 1st defendant and his mother were the tenants under
him in respect of the suit schedule property in pursuance to
sale deed executed by Mrs.B.Peacock in favour of the father
of the plaintiff as well as the release deed executed by other
64 O.S.No.7372/2010 & 7371/2011
heirs deceased B.N.Hanumaiah in favour of plaintiff has
acted upon.
55. It is also relevant to note here that though the
suit property was not at all acquired by Bangalore
Development Authority yet the Bangalore Development
Authority had filed the Mis.case No.43/1981 against the
Thippeswamy and B.N.Hanumaiah under order XXI Rule 58
of CPC, questioning legality of attachment of the schedule
property in E.P.No.38/80 as per decree passed in
O.S.No.486/1973. But on enquiry the said petition was
dismissed with costs on 12.11.1984, as it is evident from
Ex.P.16 certified copy of the order. On the ground that
Mrs.B.Peacock executed sale deed after obtaining necessary
permission under Guardian and Wards act from the court in
favour of B.N.Hanumaiah. As per recital in the sale deed,
vendor purchased the property from Howarad i.e., executor
of the properties belonged to erstwhile owner C.B.Okaly
under registered sale deed on 23.7.1951 and the property
65 O.S.No.7372/2010 & 7371/2011
involved in the sale transaction was not subject matter of
acquisition as alleged by the Bangalore Development
Authority. Besides B.Peacock was dealing with the petition
premises as its owner and has legality conveyed the same
in favour of the father of the plaintiff. Thereafter, ultimately
the mother of the 1st defendant filed O.S.No.7123/1980
against H.Thippeswamy and B.N.Hanumaiah for declaration
of title and injunction in respect of suit property. The said
suit disposed off after fullfledged trial and decreed in
part granting permanent injunction, restraining the
defendant from interfering with suit property till the
plaintiff is evicted in due course of law. Whereas the
relief of declaration of title and raising attachment order
dated 20.2.1973 in O.S.No.486/1973 was dismissed.
Whereas the defendants No.1, 3 and 5 herein were preferred
Appeal in R.F.A.No. No. 681/1999 against the defendants in
that suit. The plaintiff herein was respondent No.2 (e) in
that appeal. The said appeal came to be allowed
66 O.S.No.7372/2010 & 7371/2011
partly. Thereby order of attachment passed in
O.S.No., 486/1973 attaching plaint property was
raised as only for the relief sought for by the
appellants can be granted in the appeal. Since the
plaintiff herein or other legal heirs of B.N.Hanumaiah did not
challenge the judgment of trial court in the said appeal.
Under such circumstance the Hon'ble High Court has pointed
out that
"as regards the claim of the appellant for a declaration of title,
the basis for such declaration is only the possession of the property for
a considerable number of years. This is not a suit for a declaration of
title against the owner of the property. Though the respondent No.2
claimed title to the property, no documents having been produced in
evidence and the plaintiffs claim itself being that he is not the owner of
the property, the question of adverse possession against him does not
arise. It is submitted by Sri.Vidyadhar, learned counsel for the
respondent No.2(b), (d) and (e) that certain documents had been
produced by the defendant No.2 in the Trial court, but they have not
been exhibited and they have not been kept in the Lower Court
67 O.S.No.7372/2010 & 7371/2011
records. In the absence of admission of those documents in evidence,
the court is not in a position to determine the claim of the defendant
No.2 that he was the owner of the property. Therefore, there being no
evidence to show the ownership of the property by the defendant No.2
the question of granting a declaration of title in favour of the plaintiff
against the defendant No.2 in this case does not arise. In case
subsequently there is any suit, the parties are at liberty to place their
contentions and the present plaintiff is not precluded from showing that
by adverse possession, she had become the owner. However, it is clear
that she was in possession on the date of the suit."
56. As noted supra after disposal of R.F.A.No.
681/1999 on 7.7.2006 defendant No.1 has gifted the
southern portion of schedule property in favour of defendant
No.1 his son through gift deed dated 19.10.2004 as per
Ex.P.6. On the same day defendant No.3 was also gifted
remaining northern portion of the suit property in favour of
defendant No.4 under Ex. P7 and kept quit without seeking
any relief in respect of suit schedule property as against legal
heirs of B.N.Hanumanthaiah.
68 O.S.No.7372/2010 & 7371/2011
57. On the other hand the plaintiff has got executed
the deed of release in respect of suit schedule property
through registered deed of release dated 17.4.2010 through
General Power of Attorney holder Smt.Radhamma on behalf
of sons and daughters of late B.N.Hanumaiah. The plaintiff
on the basis of deed of release has filed O.S.No.7372/2010
for declaration of ownership and recovery of possession by
declaring the said registered gift deeds executed among
defendants No.1 to 4 as illegally null and void and
consequential relief of permanent injunction as well as mesne
profits. Subsequently, the defendants No.1 to 4 have filed
separate suit in O.S.No.7371/2011 against the plaintiff for
declaration of their ownership as they have perfected their
title by way of adverse possession and consequential relief of
injunction against plaintiff after 4 years of execution of gift
deeds without acquiring their any sort of right, title or
interest over the suit schedule property in accordance with
law.
69 O.S.No.7372/2010 & 7371/2011
58. As noted supra the plaintiff has been claiming
possession of the suit property from the defendants No.1 to
5 based on title. The erstwhile owner parted with possession
under agreement of sale dated 23.11.1949 in favour of
Ponnaswamy Mudaliar and Narayanappa. The said vendees
did not take any steps to enforce the said agreement within
reasonable time even after death of their vendor. On the
other hand the original owner C.B.Okaly died issueless
immediately after execution of agreement of sale. The
brother of C.B.Okaly by name Howerd Oklay as an executor
of Will of deceased owner sold the property to B.H.Peacock
through registered sale deed dated 23.7.1957. The said
vendee died and his wife as administrator with the
permission of the court, sold the suit schedule property in
favour of father of the plaintiff through registered sale deed
dated 13.12.1958 after 9 years from the date of execution of
alleged agreement of sale in favour of the father of 1st
defendant. After the death of Ponnaswamy Mudaliar his
70 O.S.No.7372/2010 & 7371/2011
wife made an attempt to get title over the suit property by
filing application in execution case and also filed suit for
permanent injunction against the Thippeswamy and
B.N.Hanumaiah both the suits came to be dismissed.
Meanwhile the mother of the 1st defendant alleged to have
got the agreement of sale in respect of suit property in her
possession from father of the plaintiff and also filed suit for
specific performance of agreement of sale. Later, that suit
also came to be dismissed on merits. The Bangalore
Development Authority is no way concerned to the suit
schedule property under the ownership of father of the
plaintiff through registered sale deed. Thereafter mother of
the plaintiff filed suit for declaration and injunction in
O.S.No.1123/1980. The said suit was decreed partly on
merits. The appeal in R.F.A No. 628/1999 preferred by the
defendants No.1, 3 & 5 came to be allowed thereby raised
order of attachment of suit schedule property in
O.S.No.486/1973 for the reasons stated supra.
71 O.S.No.7372/2010 & 7371/2011
59. The plaintiff has been claming his absolute
ownership through his father under registered sale deed
whereas the defendants are defending the claim of the
plaintiff based on not only agreement of sale dated
23.11.1949 but also by way of adverse possession. As such
the burden is upon defendants to defeat the right of plaintiff
by establishing their adverse possession for over 12 years.
When the defendants are claiming their title based on their
previous possession and the claim of the plaintiff is based
purely on his title as such right of plaintiff cannot be defeated
merely because he is unable to prove his possession within
12 years. The plaintiff has rightly sued for possession on the
basis of the title and also establishes his title through cogent
documentary evidence. There is no evidence at all to prove
that the possession of defendants is adverse to the title of
the plaintiff. In fact the defendants are in permissive
possession and also admitted title of the father of the
plaintiff by entering into agreement of sale. In fact the suit
72 O.S.No.7372/2010 & 7371/2011
for relief of specific performance of the agreement of sale
against the father was dismissed. When the defendants
father was come in possession of suit schedule property on
the basis of the agreement of sale and then the possession
of the defendants can never be adverse, it is permissive
possession. Since permissive possession never becomes
hostile possession till there is assertion of a hostile
possession to the knowledge of the owner. On this count
alone defendants cannot setup their title by way of adverse
possession.
60. It is settled principle of law that an alienee of a
void sale acquires no title to the property conveyed in his
favour and his possession is, therefore, wrongful from the
very inception and the cause of action for filing the suit
would arise from the date of taking possession by him.
When the possession of the property was acquired
under an agreement for sale, the possession is
permissive and until and unless the permissive
73 O.S.No.7372/2010 & 7371/2011
possession is converted into adverse by declaration of
hostile animus by the license, the limitation to file the
suit for possession by the real owner does not arise.
So, the starting point for filing a suit for possession does not
coincide with the date of agreement. It is settled principle of
law that if possession is acquired by a person under an
invalid title and he continues to remain in possession for
more than 12 years the title of the possessor becomes an
unassailable one because he acquired title by prescription.
Therefore, a person who enters into possession on the basis
of an invalid sale he acquires no title to the property by such
sale transaction but his possession becomes wrongful from
the very inception.
61. The advocate for plaintiff has placed his reliance
on various decisions in support of his arguments. In AIR
1974 Supreme Court 471 Nagindas Ramdas Vs. Dalpatram
Locharam @ Brijramand others wherein it is held that: The
admissions in pleadings or judicial admissions contemplated
74 O.S.No.7372/2010 & 7371/2011
under section 58 of Evidence Act made by the parties of their
agents at or before the hearing of the case, stand on a
higher footing than evidentiary admissions. The former class
of admission are fully binding on the party that makes them
and constitute a waiver of proof. They by themselves can be
made the foundation of the rights of the parties. On the
other hand evidentiary admissions which are receivable at
the rival as evidence are by themselves not conclusive. They
can be shown to be wrong.
In (1996) I Supreme Court 639 Mohan Lal (deceased)
through his L.Rs Kachru and others. Vs Mirza Abdul Gaffar
and another wherein it is held that: "The appellants' first
plea of adverse possession is inconsistent with his second
plea regarding retention of possession under section 53-A of
Transfer of property Act. Having come into possession under
the agreement, he must disclaim his right thereunder and
plead and prove assertion on his independent hostile adverse
possession to the knowledge of the transferor or his
75 O.S.No.7372/2010 & 7371/2011
successor in title or interest and that the later had
acquiesced to his illegal possession during the entire period
of 12 years i.e., up to completing the period of his title by
prescription nec vi, nec clam nec precario, Since the
appellant's claim is founded on section 53-A, he admits by
implication that he came into possession of the land lawfully
under the agreement and continued to remain in possession
till the date of the suit. Thereby the plea of adverse
possession is not available to the appellant.
In ILR 2008 KAR 2245 Binny Mill Labour Welfare House
building Co-operative Society Ltd Vs D.R.Mruthyunjaya
Aradhya where in it is held that: "A valid agreement is one,
which is enforceable by law as a contract, by the parties to
the agreement. A void agreement is one, which does not
exist in the eye of law, and therefore, fails to receive any
legal recognition or sanction. In legal parlance it is a nullity
or non-est. It is not a contract at all. It would be
automatically null and void without more ado. Its existence
76 O.S.No.7372/2010 & 7371/2011
or continuation has no value, as one cannot continue a
nullity-Further held, if a statute specifically provides that a
contract contrary to the provisions of the statute would be
void, it is no contract in the eye of law, it is void ab initio,
and the said agreement is unenforceable in law. In between
these two extrem3e positions, lies the voidable agreement.
In other words, a voidable agreement is one which is void or
valid at the election of one of the parties. However, it is
valid, till it is declared void by competent court of law, in a
manner known to law. "
In 2014 SCC 669 Gurdwara Sahib Vs Gram Panchayath
Villagte Sirthala and another where in it held that:
"Declaration of ownership of land on basis of adverse
possession cannot be sought by plaintiff -But claim of
ownership by adverse possession can be made by way of
defence when arrayed as defendant in proceedings against
him-While recording finding that appellant-plaintiff was in
adverse possession of suit land, held, trial court rightly
77 O.S.No.7372/2010 & 7371/2011
refused to grant decree declaring that plaintiff's adverse
possession matured into ownership -Appellant -plaintiff
being in possession of suit land for long (more than 12 years)
and having been granted decree of injunction restraining
respondent-defendants from dispossessing plaintiff there
from, its possession cannot be disturbed except by due
process of law- Though appellant's suit seeking declaration
of ownership by adverse possession stood dismissed, in case
of respondents filing suit for possession and/or ejectment of
appellant, it would be open to appellant to plead in defence
that appellant has become owner of suit land by adverse
possession -At that stage it would also be open to appellant
to plead that previous finding regarding appellant's adverse
possession operated as res-judicata."
In 2015 (3) Acre 353 SC H.Lakshmaiah Reddy and
others. Vs L.Venkatesh Reddy it is laid down that : "Mutation
entries do not convey or extinguish any title and those
78 O.S.No.7372/2010 & 7371/2011
entries are relevant only for purpose of collection of land
revenue."
62. On the other hand Advocate for defendants has
referred various decisions in support of his arguments. In AIR
2003 SC 1905(1) it is laid down that under article 65 when
the plaintiff claiming title over by adverse possession-plea of
plaintiffs that they were in possession of suit land by
virtue of unregistered, unstamped sale deed executed
in favour of their predecessors-in-interest-Defendants
alleging that plaintiffs were trespassers however admitting
their possession since life time of their father-order of
revenue authority also establishing possession of plaintiffs for
last 26, 27 years-Claim of defendant regarding taking over of
possession from plaintiff found to be false-plaintiffs in hostile
continuous possession-Adverse possession proved.
In AIR 2015 Madhya Pradesh 53 Raghuveer Singh
V.Hargovind & ors wherein it is held that: The concept of
adverse possession contemplates a hostile possession i.e., A
79 O.S.No.7372/2010 & 7371/2011
possession which is expressly or impliedly in denial of the
title of the true owner. Possession to be adverse must be
possession by a person who does not acknowledge the
other's rights but denies them. A person who bases his title
on adverse possession was hostile to the real owner and
amounted to denial of his title to the property claimed. For
deciding whether the alleged acts of a person
constituted adverse possession, the animus of the
person doing those acts is the most crucial.
In AIR 2004 KERALA 16 Jose Vs Ramakrishnan Nair,
Radhakrishnan and others it is clear para-9 of the judgment
that Expression " Female Hindu" Section 14 of the Hindu
Succession Act as well as expression " any property
possessed by a female Hindu" Have to be given wider
interpretation-Thus "female Hindu" would take in "daughter"
also-Therefore limited interest of daughter in property would
get enlarged to fill right after commencement of Hindu
Succession Act and also would take in daughter also
80 O.S.No.7372/2010 & 7371/2011
consequently the limited interest of the daughter would get
enlarged to full right after the commencement of the Hindu
Succession Act, 1956 when male Hindu following
Mithakshaqra Law died before the commencement of the
Hindu Succession Act leaving behind his self acquired
property. It is further laid down that Female Hindu could
come into possession of the property by various means and
for various purposes. She may acquire the properties by
inheritance or devise, or at a partition, or in lieu of
maintenance or arrears or by gift from any person,
whether a relative or not, before at or after the
marriage or by her own skill or exertion or by
purchase or by prescription, or in any other manner
whatsoever.
64. In the instance suit the plaintiff has not only proved
source of title derived by his father through registered sale
81 O.S.No.7372/2010 & 7371/2011
deed executed by the executor of Will of deceased C.B.Okaly
and the sale deed executed in favour of the vendor of the
father of the plaintiff. Subsequently, the plaintiff has
deprived exclusive title over the suit schedule property
through deed of release executed by other legal
representatives of his deceased father. It is an admitted fact
that legal heirs of deceased B.N. Hanumaiah through his first
wife are not parties to the deed of release. The plaintiff has
produced only death extract of a son and a daughter through
1st wife of B.N.Hanumaiah. According to PW1 all the sons
and daughters through first wife of his father are no more.
Moreover the claim of other legal heirs of deceased
B.N.Hanumaiah is nothing to do with the claim so setup by
the plaintiff as against defendants based on title seeking
possession of the suit property.
65. On the other hand the defendants have taken up
definite defence that they have perfected their title over the
suit schedule property by way of adverse possession since
82 O.S.No.7372/2010 & 7371/2011
the date of execution of agreement of sale till the date of
filing suit for more than 60 years. In fact, father and mother
of the defendants did not care to enforce agreement of sale
at the first instant. Subsequently, they admitted the
ownership of B.N.Hanumaiah over the suit property and
based on the fraudulent agreement of sale made an attempt
to enforce that agreement by filing a suit. But the said suit
came to be dismissed on merits. As the plaintiff in that suit
failed to prove due execution of agreement of sale by the
father of the plaintiff herein. Even, then neither the mother
of the defendant No.1 nor defendants herein did care to
assert their right over the suit property based on possession
for period more than 38 years. The plaintiff on the basis of
the deed of release and based on the title of his deceased
father has filed suit for declaration and possession against
defendants. Thereafter, the defendants wakeup and filed the
suit for declaration of their ownership based on the
possession. In view of ratio laid down in the aforesaid
83 O.S.No.7372/2010 & 7371/2011
decisions as referred to supra by the counsel for the plaintiff,
when the defendants merely pleaded in their written
statement setting up claim of their title by adverse
possession, but failed to prove as to how and when adverse
possession commenced and what was nature of such
possession, whether the fact of adverse possession was
known to the real owner. Looking from any angle suit of the
plaintiff in O.S.No.No.7371/2011 is barred by limitation.
Whereas the suit of the plaintiff in O.S.No. 7372/2010 for
recovery of possession based on the title is perfectly
maintainable and question of limitation does not arise. In
suit of recovery possession based on the title it is for the
defendant to plead and prove their adverse possession and
have perfected their title by remaining in such possession for
12 years. When the plaintiff has proved his title and the
defendants have failed to prove their adverse possession for
12 years. The plaintiff is entitled to succeed only on the
strength of title. Hence, without much discussion I hold that
84 O.S.No.7372/2010 & 7371/2011
the plaintiff has proved his title over the suit schedule
property, the defendants have failed to prove their title by
way of adverse possession. Hence, I answer Issue No.1 in
the affirmative. Issue No.5 & 6 in the negative
O.S.No.7372/2010. Issue No. 1 and 2 in the negative in
O.S.No.No.7371/2011.
66. Issue No.2 in O.S.No. 7372/2010 and Issue
3 in O.S.No. 7371/2011: The plaintiff has asserted that
the Ponnuswamy Modaliar was the tenant under
B.N.Hanmaiah and after demise of Ponnuswamy Modaliar,
the defendants are tenants under the plaintiff in respect of
the suit property. Except bald pleadings no cogent evidence
has been adduced by the plaintiff in this regard. The self
serving rent receipts maintained by Mrs.B.Peacock itself is
sufficient to prove the important aspect of relationship of
land lord and tenant between Mrs.B.Peacock and
Ponnuswamy Modaliar and subsequent attornment of
85 O.S.No.7372/2010 & 7371/2011
tenancy through sale deed in favour of B.N.Hanumaiah. The
father of the plaintiff has submitted self declaration before
the Rent Control Authorities and also initiated HRC
proceedings against defendant No.1 and his mother, but for
the reasons best known to him with drew the petition. In
view of past litigation between predecessor of both the
parties and agreement of sale alleged to have been
executed by B.N.Hanumaiah in favour of 1st defendant and
his mother and dismissal of suit for specific performance of
agreement in the absence of probable evidence, bald plea of
plaintiff cannot be acceptable. As discussed supra when the
defendants are in permissive possession under agreement of
sale and then question of tenancy between the plaintiff and
defendants does not arise at all. Hence, I answer issue No.2
in O.S.No.7372/2010 Issue No.3 in O.S.No. 7371/2011 in the
Negative.
67. Issue No.4 & 5 in O.S.No.7371/2011: The
defendant has taken up the defence that there is no cause of
86 O.S.No.7372/2010 & 7371/2011
action to the plaintiffs to file the suit and the suit of plaintiff
is bad for non-joinder of Smt.Kuppamma, D/o Ponnuswamy
Modaliar. In view of finding on issue No.1 and 2 in this suit
though the plaintiffs have got right to defend the claim set
up by the defendant herein in O.S.No.7372/2010 to their
title by way of adverse possession, yet the plaintiffs cannot
seek for declaration of title based on the previous
possession. The claim so set up be-lately is barred by
limitation. There was no cause of action at all to the plaintiffs
to file this suit, subsequent to defendant filing
O.S.No.7372/2010. As noted supra the plaintiffs No. 1 to 4
are the defendants 1 to 4 in O.S.No.7372/2010. Whereas
the defendants No. 1 to 4 either purposely or deliberately left
out the defendant No.5 in the said suit. In O.S.No.
7372/2010 the said Smt. Kuppamma being a daughter of
late Ponnuswamy Modaliar is also having right of possession
to that of other plaintiffs. It appears that the plaintiffs No.1
to 4 on the grab of alleged gift deeds executed by plaintiffs
87 O.S.No.7372/2010 & 7371/2011
No.1 and 3 in favour of plaintiffs No.2 and 4 have omitted
Smt. Kuppamma. As such the suit of plaintiff is bad of non
joinder of necessary party and on this count also suit of the
plaintiffs is not maintainable. Hence, I answer both the issues
accordingly.
68. Issue No.7 in O.S.No.7371/2011: The plaintiffs
have valued the suit for the purpose of court fee at
Rs.15,00,000/- for the relief of declaration and injunction and
paid court fee thereon of Rs.43,570/- under section 24(b) of
Karnataka Court Fees and Suits Valuation Act. The
defendants has merely disputed the value of the suit
property as not proper and court fee paid thereon is not
sufficient. None of the parties has adduced any relevant
evidence to prove/determination market value of the suit
property as on the date of suit is concerned. In the absence
of material evidence, the valuation of suit property so made
and court fee paid thereon by the plaintiffs is to be accepted.
Hence, I answer Issue No.7 in the affirmative.
88 O.S.No.7372/2010 & 7371/2011
69. Issue No.3 in O.S.No.7372/2010: As noted
supra subsequent to disposal of R.F.A.No. 681/1999 the
defendants instead of approaching proper forum for redressal
of their grievance, the defendants No.1 and 3 without
having any sort of right, title or interest over the suit
property have gifted southern and northern portion through
registered gift deeds dated 22.10.2007 in favour of
defendants No.2 and 4 respectively. The defendants had no
locus-standi to deal with the suit property which was/is under
the exclusive ownership of legal heirs of B.N.Hanumaiah.
When the defendants have not right whatsoever, except
unauthorised possession over the suit property, they could
not have gifted out the portion of the suit properties either to
defendants No.2 and 4 or anybody else. Looking to the
facts and circumstances of the case the both registered gift
deeds dated 22.10.2007 at Ex.P.6 & 7 being baseless, illegal,
null and void or not binding on the plaintiffs. Hence, I
answer Issue No.3 in O.S.No.7372/2010 in the affirmative.
89 O.S.No.7372/2010 & 7371/2011
70.Issue No.4 in O.S.No.7372/2010: In view of
findings on the issue No.1 to 3, 5 & 6 when the plaintiff has
proved his title over the suit schedule property and then he is
entitled to recover the possession of the suit schedule
property from the defendants. Hence, without much
discussion I answer Issue No.4 in the affirmative.
71. Issue No.7 in O.S.No. 7372/2010 and Issue
No.8 in O.S.No. 7371/2011: In view of findings on issues
in both the suits and reasons stated therein, the plaintiff in
O.S.No.7372/2010 is entitled to relief as sought against
defendants and consequently the plaintiffs in
O.S.No.7371/2011 are not at all entitle to any of the relief as
sought against defendant in respect of the suit schedule
property. Hence, I pass the following;
ORDER
The suit of the plaintiff in O.S.No. 7372/2010 is decreed with costs against the defendants as under:-
90 O.S.No.7372/2010 & 7371/20111. It is declared that the plaintiff is absolute owner of the suit schedule property.
2. The defendants are directed to deliver the possession of the suit schedule property to the plaintiff within three months from the date of this order.
3. It is declared that the Registered Gift Deeds vide registration No.2526/2007-08 date4d 22/10/2007 and another registered Gift Deed vide registration No.2527/2007-2008 dated 22/7/2007 executed by defendants No.1 and 3 in favour of defendants No.2 and 4 are illegal, null and void.
4. Consequently, the defendants or anybody claiming under them are restraned by way of permanent injunction from alienating or creating a charge in any manner over the suit schedule property.
5. There shall be separate enquiry regarding determination of the mesne profits in accordance with provisions as contemplated XX rule 12 of C.P.C.91 O.S.No.7372/2010 & 7371/2011
6. The suit of the plaintiffs in O.S.No.7371/2011 is dismissed. No order as costs.
Draw up a decree accordingly vide Judgment passed.
Keep copy of the judgment in O.S.No.7371/2011 (Dictated to the Judgment Writer, transcript corrected, signed and then pronounced by me in open Court, on this the 16TH day of February 2016.) (BHAIRAPPA SHIVALING NAIK) XII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff' side :
P.W.1: H.Nagaraja
(b)Defendant's side :92 O.S.No.7372/2010 & 7371/2011
D.W.1: Raghunathan D.W.2: Perumal II. List of documents exhibited on behalf of :
(a) Plaintiff' side :
Ex.P1: Khataha Extract dated 31.3.2010 Ex.P.2: Registered deed of Release Ex.P.3: Khatha Extract Ex.P.4: Khatha certificate Ex.P.5: Form No.9 Ex.P.6: Certified coy of gift deed dated 19.10.2007 Ex.P.7: Certified copy of gift deed dated 19.10.2010 Ex.P.8: Khatha certificate Ex.P.9: Letter 22.12.1958 Ex.P.10: Letter dated 11.3.2010 Ex.P.11: Uttara Patra Ex.P.12 & 13 Tax paid receipts Ex.P.14 Notice of Public Auction Ex.P.15 Certified copy of order in Mis.No. 43/1981 issued by XVI ACCJ Ex.P.16 Certified copy of judgment in O.S.No. 7123/80 Ex.P.17 Tax paid receipt Ex.P.18 Certified copy of endorsement dated 12.3.1976 issued by Corporation, Bangalore Ex.P.19 Certified copy of endorsement dated 22.8.1975 93 O.S.No.7372/2010 & 7371/2011 Ex.P.20 Letter dated 11.6.1953 Ex.P.21 Letter dated 29.4.1953 Ex.P.22 Certified copy of sale deed dated 13.12.1958 Ex.P.23 & 24 Two Endorsements issued by Corporation, Bangalore City Ex.P.25 Certified copy of orders in O.S.No. 486/73 Ex.P.26 Certified copy of Mortgage deed dated 13.8.1959 Ex.P.27 Certified copy of orders passed in Misc.No.358/1975 Ex.P.28 Certified copy of judgment in R.F.A.No.681/1999 Ex.P.29 FIR in Cr.No.196/2010 Ex.P.30 Counter files of rent receipts Ex.P.31 to 39 Nine tax paid receipts Ex.P.40 & 41 Endorsement issued by ARO Ex.P.42 Certified copy of sale deed Ex.P.43 Certified copy of order on I.A.No.II Ex.P.44 Certified copy of judgment passed in RA.No.210/1975 Ex.P.45 Certified copy of order passed in Misc.No. 358/1975 Ex.P.46 Copy of Complaint with endorsement of Sriramapura Police Station Ex.P.47 & 48 Two Tax paid receipts Ex.P.49 Receipts issued Roopavahini Studio Ex.P.50 to 55 Fivt photographs 94 O.S.No.7372/2010 & 7371/2011 Ex.P.56 Certified copy of deposition of PW1 in O.S.No.7123/1980 Ex.P.57 Death certificate Ex.P.58 Death certificate Ex.P.59 to 61 Three encumbrance certificate Ex.P.62 Certified copy of Charge sheet in CC.No.13318/2011 Ex.P.63 Copy of orders III. List of documents exhibited on behalf of :
Defendants side Ex.D1: Endorsement (pw1) & Sale Agreement Ex.D.2 Endorsement dated 22.8.1975 Ex.D.3 Tax Paid Receipt Ex.D.4 Endorsement dated 12.3.1976 Ex.D.5 Khata Extract Ex.D.6 Certified copy of orders 15.11.1966 in O.S.No.1155/1961 Ex.D.7 Certified copy of orders dated 4-12-1967 in Mis.No.330/66 Ex.D.8 Certified copy of the orders dated 9.3.1970 in Mis.No.265/1968 Ex.D.9 Certified copy of order in Mis.No. 358/1975 dated 7.12.1978 Ex.D.10 Certified copy of public auction in Ex.No.38/1980 Ex.D.11 Certified copy of orders passed 95 O.S.No.7372/2010 & 7371/2011 in HAC 1656/1985 Ex.D.12 Certified copy of Manage deed dated 9.6.1948 Ex.D.13 Postal Acknowledgment dated 8.4.1977 Ex.D.14 Certified copy of orders in R.F.A.No. No.681/99 dated 7.6.2006 Ex.D.15 Khatha Extract dated 14.8.1974 Ex.D.16 Agreement of sale dated 24.11.1976 Ex.D.17 Endorsement issued by BESCOM Ex.D.18 Certificate issued by BESCOM dated 6.11.2013 Ex.D.19 Cumulative record Ex.D.20 Wedding invitation Ex.D.21 Wedding invitation Ex.D.22 Pass book Ex.D.23 The pass book Ex.D.24 & 25 Death Certificates Ex.D.26 to 31 Six Tax paid receipt Ex.D.32 Election Id card Ex.D.33 Endorsement issued by BBMP Ex.D.34 Election ID card Ex.D.35 Marriage invitation card (BHAIRAPPA SHIVALING NAIK) XII Addl. City Civil & Sessions Judge, Bengaluru.96 O.S.No.7372/2010 & 7371/2011
*** (Judgment pronounced in open court) The suit of the plaintiff in O.S.No. 7372/2010 is decreed with costs against the defendants as under:-
1. It is declared that the plaintiff is absolute owner of the suit schedule property.97 O.S.No.7372/2010 & 7371/2011
2. The defendants are directed to deliver the possession of the suit schedule property to the plaintiff within three months from the date of this order.
3. It is declared that the Registered Gift Deeds vide registration No.2526/2007-08 date4d 22/10/2007 and another registered Gift Deed vide registration No.2527/2007-2008 dated 22/7/2007 executed by defendants No.1 and 3 in favour of defendants No.2 and 4 are illegal, null and void.
4. Consequently, the defendants or anybody claiming under them are restraned by way of permanent injunction from alienating or creating a charge in any manner over the suit schedule property.
5. There shall be separate enquiry regarding determination of the mesne profits in accordance with provisions as contemplated XX rule 12 of C.P.C.98 O.S.No.7372/2010 & 7371/2011
6. The suit of the plaintiffs in O.S.No.7371/2011 is dismissed. No order as costs.
Draw up a decree accordingly vide Judgment passed.
Keep copy of the judgment in O.S.No.7371/2011 (BHAIRAPPA SHIVALING NAIK) XII ACCJ;Bangalore