Bangalore District Court
Dr. Ravi Arjunan vs Thimmaiah on 16 November, 2019
TITLE SHEET FOR JUDGEMENTS IN SUITS
Government of
Karnataka
Form No.9
[Civil] Title Sheet for
IN THE COURT OF V ADDL.CITY CIVIL COURT
Judgement
in Suits
AT BENGALURU
(CCH.No.13)
Present: Sri. C.D. KAROSHI, B.A., LL.M.
V ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU
Dated this the 16th day of November, 2019.
O.S. No.5466/ 2007
PLAINTIFF: Dr. Ravi Arjunan,
S/o Dr. C. Arjunan,
Aged about 51 years,
R/at No.26, 2nd Main Road,
Vasanthanagar East,
Bengaluru-52.
(By Sri.MGR, Advocates)
/VS/
DEFENDANTS: 1. Thimmaiah,
S/o Late Munishamappa,
Aged about 71 years
2. Papaiah,
S/o Lae Munishamappa,
Aged about 66 years
3. Sri. Muniraja,
S/o Late Anjanappa,
Aged about 46 years
Since deceased by his L.Rs.
3(a) Smt. Yashodamma,
W/o Muniraja,
Aged about 58 years
3(b) M. Subramani,
S/o Muniraja,
Aged about 32 years
3(c) Nagaraj,S/o Muniraja,
Aged about 28 years
2
O.S. No.5466/2007
3(d) Murali,
S/o Muniraja,
Aged about 27 years
All are R/at No.101,
Vaddarapalya,
Horamavu Agara,
Bengaluru.
4. Shankara,
S/o Late Anjanappa,
Aged about 36 years
5. Venkatesha,
S/o Late Anjanappa,
Aged about 33 years
6. Suresha,
S/o Late Anjanappa,
Aged about 31 years
All are R/at Vaddarapalya,
Horamavu Agara,
Krishnarajapura Hobli,
Bengaluru South Taluk.
7. Sri. Channarayappa @ Gajendra,
S/o Venkatarayappa,
Aged about 47 years,
R/at Mitaganahalli village,
Bidarahalli Hobli,
Bengaluru East Taluk.
(D.1 & D.2: Ex-parte,
D.3 dead, LRs of D3(a to d)
by Sri. V.R advocate
D.4 to 6 by Sri. MRR advocate
D.7 by Sri. V.C. Advocate)
3
O.S. No.5466/2007
Date of Institution of the suit 16-07-2007
Nature of the suit Suit for declaration,
possession and mandatory
injunction
Date of Commencement of 19-04-2008
recording of evidence
Date on which judgment was 16-11-2019
Pronounced
Total Duration Year/s Month/s Day/s
12 04 00
( C.D.KAROSHI )
V ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU
******
:JUDGMENT:
This is a suit filed by the plaintiff against the defendants for the relief of declaration, possession and mandatory injunction in respect of the suit schedule property along with damages and cost of the suit.
2. The brief facts of the case are as under :-
That, the plaintiff is the absolute owner in possession of the suit schedule property bearing site No.10, Katha No.206/1, measuring east to west 30 feet and north to south 52 feet situated at Horamavu, Agara village, K.R. Puram Hobli, Bengaluru South Taluk. The plaintiff purchased the said property under registered sale deed dated 17/03/1997 from its owners/defendants 1 and 2 and father of defendant 4 O.S. No.5466/2007 No.3 to 6 represented by GPA holder Sri. Nalla Perumala for valuable consideration of Rs.74,000/- and he obtained the possession of the schedule property as on the date of execution of sale deed itself. Further the BBMP has issued Katha certificate in his name and plaintiff is paying tax to the concerned authorities. The Horamavu Agara gramapanchayth issued a sanctioned plan and license dated 18/04/2006 to put up construction on the schedule property, but due to certain domestic problems he could not go ahead with construction. Now there is a small house in the schedule property. This being the fact on 10/07/2007 when he had been to the schedule property he found that defendants have trespassed and stored building materials in the open place illegally without having any manner of right, title or interest over the schedule property. The defendants went of declaring that they will come again and dispossess the plaintiff, accordingly the plaintiff approached the Hennur police and narrated the said fact, they advised to approach the court as the matter is civil in nature. Further it is averred that, in the month of October 2008 by using muscle power and politically motivated influence the defendants trespassed over the schedule property and after dispossessing him let out the tenants to the AC sheets roofing sheet constructed over the schedule property and also illegally secured power connection, as such, the possession of the defendants by using force and coercion is unlawful. Defendants also played fraud on the plaintiff, accordingly the plaintiff also sought 5 O.S. No.5466/2007 relief of declaration, possession with a direction to the defendants to hand over the vacant possession of the schedule property. On these grounds, plaintiff prayed for decreeing the suit.
3. Records reveal that despite service of suit summons defendant No.1 and 2 remained ex-parte. Defendant No.3 to 6 appeared through their counsel. Defendant No.3 reported to be dead, his L.Rs were brought on record. During the pendency of the suit the plaintiff got impleaded the defendant No.7 subsequent purchaser of the schedule property as party to the proceedings.
4. It is contended in the written statement/additional written statement filed by the defendant No. 3 to 6 and L.Rs of defendant No.3 that, the suit of the plaintiff is not maintainable either in law or on facts and liable to be dismissed. The averments made in para 3 to 10 are denied as false and plaintiff be put to strict proof of the same. The plaintiff is not at all in the possession of any portion of the land bearing Sy.No. 109/1 and 110/5, as such question of forcible dispossession does not arise. The defendants are not aware of the alleged complaint. The defendants 3 to 6 filed a suit for partition and separate possession in O.S. No.3694/1997 against their uncles and after contest it came to be decreed on 04/02/2004, accordingly they filed FDP No.19/2005. The defendants are not the owners in respect of site No.10, Katha No.206/1, but the plaintiff might have got such fraudulent document. The alleged suit schedule 6 O.S. No.5466/2007 property does not exist in the Horamavu Agara, gramapanchayath. At no point of time, Anjanappa, Thimmaiah and Papaiah have executed any GPA/affidavit in favour of Sri. Nalla Perumal resident of Ulsoor, Bengaluru in respect of land bearing Sy.No. 109/1 and 110/5, as such the said document is a cooked up document. The defendant No.2 and his son have sold property bearing No.110/5 measuring 4.04 guntas through a registered sale deed dated 16/06/2006 in favour of Chennarayappa @ Gajendra and he is in actual possession of the same. Further she constructed a shed and now watchman is residing in the said shed, as such it is false to say that members of the plaintiff's family are residing in the said shed. The plaintiff has not approached the court with clean hands and has suppressed the material facts. Plaintiff is neither the owner nor in possession of the schedule property. Court fee paid is not correct. No cause of action arose to file the suit. Further the averments made in para 12(A) and 13(A)of the plaint regarding alleged forcible trespass or dispossession is specifically denied as false. Suit is bad for mis-joinder and non-joinder of necessary parties. After realizing the fact that plaintiff was not in possession, has created the story that, defendants have dispossessed him in the month of October 2008. On these grounds prayed for dismissal of the suit with exemplary costs.
7O.S. No.5466/2007
5. It is contended in the written statement filed by the defendant No.7 that suit of the plaintiff is not maintainable either in law or on facts and liable to be dismissed. The averments made in para 1 to 12, 12(A), 13 and 13(A) are denied as false and the plaintiff be put to strict proof of the same. The defendant No.7 contend that, he became the owner in possession of the land bearing Sy.No. 110/5, measuring 4.4 guntas situated at Horamavu, Agara village, Bengaluru East Taluk by virtue of registered sale deed dated 14/06/2006. Further he had constructed a shed and obtained electricity connection. On 12/08/2012 at about 10 a.m. the plaintiff came near the property and tried to interfere with the possession of the defendant No.7, accordingly he filed a suit for permanent injunction in O.S. No.5812/2010 on the file of CCH No.32, wherein the plaintiff appeared and filed written statement. After contesting the said suit came to be decreed on 03/01/2017 by permanently restraining the plaintiff over the peaceful possession and enjoyment of the property of defendant No.7. Further observed that, property claimed by the present plaintiff is quite different with that of the schedule property. The entire claim put forth by the plaintiff in the present suit stating that he purchased the property through registered sale deed dated 17/03/1997 from the defendants through their GPA holder, but defendant No.1 and 2 and father of defendant No.3 to 6 have not formed any layout in the land bearing Sy.No. 110/5 and Sy.No. 109/1 of Horamavu Agara village, as such they are agricultural lands.
8O.S. No.5466/2007 At no point of time they applied for conversion. The Katha No.206/1 does not exist in the panchayath and the said Katha does not stand in the name of defendant No.1 and 2 and father of defendant No.3 to 6. Therefore, the plaintiff has colluded with one Nalla Perumal and obtained fraudulent sale deed based on created GPA. There is no such property in existence as shown in the plaint schedule. The boundaries and measurement shown by the plaintiff are wrong and trying to make claim over the property belongs to defendant No.7. Further contend that one Narendra Kumar filed O.S. No.15766/2004 before the 28th Addl. CCJ, Mayo Hall Court, against defendant No.3 and others in respect of site No.12, Katha No.206/1 for the relief of declaration and permanent injunction, after contest the said suit came to be dismissed on 05/01/2013. The plaintiff also set up a claim that he is owner in respect of house list Katha No.206/1, based on fraudulent sale deed in respect of non existing property. The suit is barred by limitation. The court fee paid is not correct. On these grounds prayed for dismissal of this suit with costs.
6. On the basis of the above pleadings, my learned predecessor in office has framed the following issues:-
1) Whether the plaintiff proves his lawful possession over the schedule properties ?
2) Whether the plaintiff proves the interference by the defendants?
3) Whether the plaintiff is entitled for relief claimed in the suit ?
4) What Order or Decree?9
O.S. No.5466/2007
-:ADDL. ISSUES :-
1. Whether the plaintiff to prove that he is an absolute owner in title to the suit property?
2. Whether the plaintiff to prove his suit is maintainable without seeking relief of possession?
3. Whether the suit is bad for non-joinder of necessary parties?
4. Whether the plaintiff is entitled for mandatory injunction and damages?
5. Whether the plaintiff is entitled for possession?
7. In order to prove his case, the plaintiff examined himself as PW-1 and got marked the documents at Ex.P.1 to 27 and 34 to 47. The plaintiff also examined a witness as P.W. 2 and got marked documents at Ex.P.28 to 33. On the other hand 5th defendant examined himself as D.W.1 and got marked documents at Ex.D.1 to D.10. The 7 th defendant examined himself as D.W.2 and got marked documents at Ex.D.11 to 22.
8. Heard and perused the written arguments along with the material on record. The counsel for plaintiff relied on two decisions reported in ILR 1993 KAR 2306 (Mohammed @ Podiya Vs. Assistant Commissioner and (2012) 1 SCC 656 (Suraj Lamp and Industries Pvt., Ltd., Vs. State of Haryana and another).
10O.S. No.5466/2007 The counsel for defendant No.3 to 7 also relied on decisions reported in ILR 2004 KAR 3079 ( Venkataramanappa Vs. Narasiah), AIR 2011 SC 1492 (H. Siddiqui (dead) by Lrs. Vs. A. Ramalingam), AIR 2012 SC 206 (Suraj Lamp and Industries Pvt., Ltd., Vs. State of Haryana and another), 2004(1) KCCR 662 (K. Gopala Reddy (deceased) by Lrs. Vs. Suryanarayana and others), 2017(4) KCCR 3144 ( Smt. Sathyamma Vs. Smt. Kempamma), AIR 1998 SC 1132 (Tirumala Tirupati Devasthanams Vs. K.M. Krishnaiah), 2016(4) Kar.L.J 254 ( Annapa Vs. Laxmi Devi Devar Temple and Nulichandayya Devasthan Committee and others), 2009 AIR SCW 4739 ( T.K. Mohammed Abubucker (D) Thr. Lrs. And others Vs. PSM Ahamed Abdul Khader and others).
9. My findings on the above issues are as under:-
Issue No.1 :Does not survive for consideration Issue No.2 :Does not survive for consideration Issue No.3 :In the Negative Addl.Issue No.1 : In the Negative Addl.Issue No.2: Does not survive for consideration Addl.Issue No.3 :In the Affirmative Addl.Issue No.4 :In the Negative Addl.Issue No.5 :In the Negative Issue No.4 :As per final order for the following:11
O.S. No.5466/2007 :R E A S O N S:
10. Issue No.1, 2 and Addl. Issue No. 2:- I take these issues altogether for my discussion, as the facts overlap and for the sake of convenience.
11. It is pertinent to note that, initially the plaintiff filed the above numbered suit against defendants for the relief of bare injunction. The defendants 1 to 6 appeared and filed written statement contending that plaintiff is not in lawful possession of the schedule property. This court has framed Issue No.1 to 4 on 12/08/2009. During the pendency of the suit the plaintiff came to know that schedule property has been transferred in favour of defendant No.7, accordingly he got impleaded the subsequent purchaser as party to the proceedings. In turn defendant No.7 appeared through his counsel and filed written statement by denying title as well as lawful possession of the plaintiff over the suit schedule property. So, Issue No.1, 2 and Addl. Issue No.2 are relating to lawful possession of the plaintiff over the schedule property, alleged interference by the defendants and maintainability of the suit without seeking the relief of possession. The defendants also filed additional written statement, the plaintiff got amended the plaint as he has been dispossessed by the defendant No.7 in the month of October 2008 and also sought for the relief of possession, accordingly this court has framed additional issue No.5 12 O.S. No.5466/2007 regarding entitlement of possession over the suit schedule property. During the course of cross-examination of P.W. 1 also it has been elicited that he is not in the possession of the schedule property. D.W.1 and 2 also state that plaintiff is neither the owner nor in possession of the schedule property. So the plaintiff got amended the plaint by adding the relief of declaration, possession and mandatory injunction. Again this court framed Addl. Issue No. 1 to 4 on 31/05/2012. Therefore Issue No.1, 2 and Addl. Issue No.2 do not survive for consideration. Hence, these issues are answered accordingly.
12. Addl. Issue No. 1, 4 and 5:- I take these issues altogether for my discussion, as the facts overlap and for the sake of convenience.
13. It is worth to note that, the plaintiff claiming to be the absolute owner of the suit schedule property bearing site No.10, katha No.206/1, measuring east west 30 feet and north south 52 feet, situated at Horamavu, Agara village, K.R.Puram, Bengaluru South taluk, based on registered sale deed dated 17/03/1997 acquired from its owners defendant No.1 and 2 and father of defendant No.3 to 6 through GPA holder Sri. Nalla Perumal for valuable consideration of Rs.74,000/-. After adding the relief of declaration, possession and mandatory injunction the plaintiff would contend that, the alleged sale deed dated 14/06/2006 executed in favour of defendant No.7 is a created document to grab the valuable 13 O.S. No.5466/2007 property of the plaintiff. It is the case of the plaintiff that on 10/07/2007 when he had been to the schedule property he found that defendants have trespassed into the schedule property and also stored building materials without having any right, title or interest over the schedule property. Again urged that, in the month of October 2008 the defendants by using their muscle power and politically motivated influence trespassed over the schedule property and after dispossessing the plaintiff they let out the A.C. sheets roofing house in favour of tenants and when he informed the jurisdictional police they advised him to approach the court stating that the matter is civil in nature. In this regard the plaintiff has filed affidavits in lieu of oral evidence by reiterating entire averments of the plaint and examined himself as P.W. 1 and got marked the documents at Ex.P. 1 to 27 and 34 to 47.
14. During the course of cross-examination of P.W. 1 though states that, the house list No.206/1 is relating to both survey number 109/1 and 110/5, but has categorically admitted the fact that he did not get surveyed the suit property to ascertain its existence, he does not know the extent as well as boundaries of Sy.No. 109/1 and 110/5 and converted as non agricultural or not, he was having Xerox copy of the layout plan and lost about 5-6 years back, has no difficulty to obtain the copy of the layout plan, he was neither present when Ex.P.22 was being executed nor seen signatures on Ex.P.24 and 27, he is having original sale deed and there is no hurdle to produce the same before the court. Further 14 O.S. No.5466/2007 admits that, there is no reference of survey numbers in the said sale deed, he has neither taken house list Khatha No.206/1 at the time of purchasing the suit property nor seen the same which is standing in the name of Anjanappa, Thimmaiah and Papaiah or made attempt to enquire about the proceedings in O.S. No.3694/1997. Further admits that contents of Ex.P.8 to P.12 are correct, but pleads ignorance to the effect that Papaiah and his sons have sold 4 1/4th guntas to Channarayappa @ Gajendra who filed O.S. No.5812/2010 against him and others pending on the file of CCH No.19. Further he has neither observed about the electricity connection to the shed nor enquired the watchman who was residing in the said shed when he visited the schedule property or he knew about exact date of dispossession of him from the schedule property by the defendant.
15. Further when a suggestion was put to the witness that, said Gajendra is in the possession of 4 1/4th guntas of land by putting barbed wire fence around the schedule property, the witness answered only to grab his property the said defendant has put up fence and created the documents. Further admits that, he is not having any document to show that said shed was in the occupation of his tenants. Again when another question was put to the witness that have you got any document to show that the house list Katha No.206/1 site No.10 comes within the limits of Sy.No. 110/5, he pleads ignorance and on the other hand he admits that, he never challenged the sale deed dated 14/06/2006 executed in 15 O.S. No.5466/2007 favour of defendant No.7 subsequent purchaser. Again admits that O.S. No.5812/2010 filed by him against the defendant No.7 in respect of Sy.No. 110/5 to the extent of 4 1/4th guntas came to be decreed and there is no stay granted in the appeal. Further admits that, he has not produced a bit of document to show that the Katha No.206 was in existence and he is in the possession of the land bearing Sy.No. 110/5 and Ex.P.40 and 41 which have been issued subject to objection, but he has denied the suggestion that there was no house list katha No.206/1 either in the name of Nalla Perumal or in the names of Anjanappa, Thimmaiah and Papaiah. Further denied the suggestion that Ex.P.2 has been concocted by him and there is no existence of the property described by him with boundaries in Sy.No. 110/5. Further denied that, he is aware of the fact that defendant No.7 Gajendra is the owner in possession of the schedule property and he has forged thumb impression of Anjanappa, Thimmaiah and Papaiah in Ex.P.24 and 27 and created Ex.P.1 in collusion with B. Nalla Perumal and based on created Katha he has obtained sale deed and filed the present suit.
16. So also P.W. 2 states that he is the absolute owner in possession of the site No.61 an 62 formed in Sy.No. 109/1 and 110/5 situated at Horamavu Agara village Bengaluru south taluk, himself and his wife purchased the same under registered sale deed dated 18/09/1997. Further states that, plaintiff is the absolute owner in possession of the property 16 O.S. No.5466/2007 bearing No.10 formed in Sy.No. 109/1 and 110/5 of the said village, wherein defendant No.1 and 2 and father of defendant No.3 to 6 formed a layout and sold the same to various purchasers by executing GPA, sale agreements and affidavits as such the plaintiff is in physical possession and enjoyment of the suit schedule property with constructed AC sheet roofing house in the schedule property. P.W. 2 got marked the documents at Ex.P.28 to 33, but in his cross-examination states that, he does not remember exact measurement of said Sy.No. 109/1 and 110/5 and its boundaries. Further pleads ignorance that whether above two survey numbers have been converted for non-agricultural purpose or not. Further admits that he was not present on the date of execution of alleged GPA, agreement of sale and affidavit in favour of various purchasers. Further when a suggestion was put to the witness that, defendant No.7 Channarayappa @ Gajendra has purchased the land, constructed a shed, obtained electricity connection and is in the possession of 4.04 guntas of land in Sy.No. 110/5 of the said village, he pleaded ignorance, but denied a suggestion that said GPA, sale agreement and affidavit referred by him are created one and plaintiff is not in the possession of the schedule property at any point of time.
17. In order to substantiate their contentions defendant No.5 filed an affidavit in lieu of oral evidence and examined himself as D.W.1 by reproducing entire contentions taken in the written statement stating that, plaintiff is neither the 17 O.S. No.5466/2007 owner, nor in possession or the alleged house Katha No.206/1 as well as the schedule property is in existence in the Horamavu Agara grama panchayath limits. Further states that in view of family partition the land measuring 8 guntas in Sy.No. 110/5 the name of defendant No.2 came to be mutated in the revenue records, in turn defendant No.2 and his son have sold the property measuring 4.04 guntas in favour of Sri. Channarayappa @ Gajendra, wherein he as constructed a shed and enjoying the same as such the plaintiff is not entitled for any relief. In order to support his oral testimony D.W.1 got marked documents at Ex.D.1 to D.10.
18. During the course of cross-examination D.W. 1 has admitted the fact that he has not placed any document to show the schedule property is the ancestral property, in a partition suit their family members were parties to the suit, wherein he filed written statement in respect of landed property bearing Sy.No. 109/1 and Sy.No. 110/5 measuring 2 acres 23 guntas, the purchasers have filed 2-3 suits against him and O.S. No.50297/2006 and O.S. No.10883/2006 are pending before the Mayo Hall Courts, he does not know who is Nalla Perumal. Further admits that, defendant No.2 has sold 4.04 guntas of land in Sy.No. 110/5 to one Sri. Channarayappa @ Gajendra in the year 2006 which was fallen to the share of Papaiah for that he is the signatory and he has no right over the suit schedule property. But, he has denied the suggestion that the partition suit was ended in 18 O.S. No.5466/2007 compromise and during the life time of his father they formed the layout in Sy.No. 109/1 and 110/5 and sold sites to various intending purchasers. Further deny that the signature found in certified copy of the sale deed dated 14/06/2006 and with that of Ex.P.24 and P.27 belongs to Papaiah are one and the same.
19. So also defendant No.7 filed an affidavit in lieu of oral evidence and examined himself as D.W.2 by reproducing the contentions taken in the written statement and states that, he became the absolute owner in possession of the land bearing Sy.No. 110/5 measuring 4.04 guntas of Horamavu village, K.R. Puram Hobli, Bengaluru East Taluk by virtue of registered sale deed dated 14/06/2006, constructed a shed, obtained electricity connection and residing therein, but the plaintiff came near the property and tried to interfere with the possession, accordingly he filed O.S. No.5812/2010 before CCH No.32 and it came to be decreed on 03/01/2017 by permanently restraining the plaintiff and others from interfering with peaceful possession and enjoyment of the said property. Further states that the defendant No.1 and 2 and father of defendant No.3 to 6 have not formed any layout in Sy.No. 110/5 and Sy.No. 109/1 of Horamavu Agara village. The katha No.206/1 relied by the plaintiff does not exist in the panchayath or it stands in the name of defendant No.1 to 6, the plaintiff has obtained fraudulent sale deed in collusion with Nalla Perumal based on created GPA to show that Katha No.206/1 is part and parcel of land bearing Sy.No. 110/5 of 19 O.S. No.5466/2007 Horamavu Agara village. Further states that, one Narendra Kumar filed O.S. No.15766/2004 before the 28th ACCJ, Mayo Hall unit Bengaluru against 3rd defendant and others claiming that he purchased site bearing No.12, Katha No.206/1 for the relief of declaration and permanent injunction and after contest it came to be dismissed on 05/01/2013, but again the plaintiff has set up a similar claim based on same Katha number, which indicates that, plaintiff has obtained fraudulent sale deed in respect of non-existing property. In order to support his oral testimony D.W.2 got marked documents at Ex.D.11 to 22.
20. During the course of cross-examination it has been elicited that, he has purchased the land to the extent of 4.04 guntas out of 1 acre 4 guntas in Sy.No. 110/5 of Horamavu village and it was the ancestral and joint family property of Thimmaiah, Anjanappa and Papaiah. Further though he admits that Ex.P.24 GPA and Ex.P.27 affidavit bear signatures of Thimmaiah, Anjanappa and Papaiah, but he pleads ignorance to the effect that defendant No.3 to 6 are the sons of said Anjanappa. Further when a suggestion was put to the witness that in Sy.No. 109/1 and Sy.No. 110/5 to the extent of 2.23 guntas sites were being formed by the aforesaid persons and sold in favour of Nallaperumal through GPA and an affidavit dated 21/01/1998 along with possession of the schedule property, he has specifically denied the same. Further he denied the suggestion that said Nalla Perumal has alienated the schedule property under a registered sale deed 20 O.S. No.5466/2007 dated 01/03/1996 in favour of the plaintiff and there was no agricultural land in the said survey numbers. Further though admits that he has not obtained conversion order or plan from the concerned authority since the said property comes under the limits of Panchayath and Ex.D.14 and 22 electricity bills do not disclose the survey number or house number, but denied the suggestion that he has created Ex.D.14 and 22 bills for the purpose of the suit and also denied that BBMP authority have not issued Ex.D.19 document. Further D.W.2 has identified the fact that the person appearing in Ex.P.13 to 17 photographs, is the plaintiff, but denied that the said house was in existence at the time of purchase of schedule property and states that, schedule property is not belongs to him. Further he denied the contents of Ex.P.5, 6, 43 and 44 issued by the concern authority in favour of the plaintiff as well as alleged possession of the plaintiff over the schedule property from the year 1996 from the date of purchase and he has trespassed by dispossessing the tenants in the month of October 2008 from the schedule property.
21. The learned counsel for the plaintiff filed written arguments by reproducing entire pleadings, oral and documentary evidence and relying on decisions referred in para 9 supra prayed for decreeing the suit. Per contra the learned counsel for the defendant No.7 also filed written arguments and relying on the decisions referred supra in para 9 prayed for dismissal of the suit. The counsel for defendant No.3 to 6 filed a memo by adopting the same.
21O.S. No.5466/2007
22. It has been held by the Division Bench of our Hon'ble High Court in the case of Mohammed @ Podiya referred by the counsel for plaintiff that, if power of attorney i.e. agency coupled with interest then the said authority became irrecoverable. Further the Hon'ble Apex Court has held in the case of Suraj Lamp and Industries Pvt., Ltd., that transfer of immovable property can be made only by registered sale deed and not by sale agreement/GPA/Will. However, certain protections granted to SA/GPA/living Will transactions entered into prior to date of present judgment and also held that the said judgment will not affect the validity of sale agreements, powers of attorney executed in genuine transactions.
23. Similarly, it has been held in the decisions referred by the counsel for defendants that if the execution of document itself is denied by the executant then examination of attesting witness to prove the same becomes necessary. Further observed that in a suit for declaration of title and permanent injunction, if the party withheld the documents of title then court can draw an adverse inference. Further observed that in a suit for injunction it is the plaintiff has to succeed or fail on the case made out by himself, even there are lapses and lacunas on the part of the defendant. Further in the case of Tirumala Tirupathi Devasathanams case the Hon'ble Apex Court observed that, Section 6 of Specific Relief Act- if plaintiff dispossessed from the property, suit for possession filed beyond six months of dispossession, is not 22 O.S. No.5466/2007 maintainable, when title of defendant was subsisting and not extinguished. So keeping in mind the aforesaid principles this court has to appreciate the oral and documentary evidence available on record and to see that, in whose favour preponderance of probabilities lies.
24. It is pertinent to note that, on careful evaluation of the pleadings, oral and documentary evidence as well arguments on both side we can find that, the plaintiff is claiming to be the owner in possession of the property bearing site No.10, Katha No.206/1 situated at Horamavu Agara village, K.R. Puram Hobli, Bengaluru South Taluk based on registered sale deed dated 17/03/1997 (as averred in para 3 of the plaint) said to have been executed by alleged GPA holder Nalla Perumal of the previous owners defendant No.1 and 2 and father of defendant No.3 to 6.
25. It is the case of the plaintiff that, defendant No.1 and 2 and father of defendant No.3 to 6 have executed Ex.P.24 GPA as well as Ex.P.27 affidavit in favour of their GPA holder Nalla Perumal S/o Bala Subramanyam for a sale consideration of Rs.10,900/- and also handed over possession of the schedule site, accordingly he has purchased the same under the sale deed dated 17/03/1997.
26. But, plaintiff has not produced original or certified copy of the aforesaid sale deed dated 17/03/1997 before this court. On perusal of Ex.P.1 certified copy of the sale deed dated 01/03/1996 reveals that he has purchased the 23 O.S. No.5466/2007 schedule property bearing site No.10 for a sale consideration of Rs.74,000/- from the GPA holder of defendants. But plaintiff has not produced the original sale deed dated 01/03/1996 before this court. Further Ex.P.28, 29 certified copies of the sale deeds dated 18/09/1997 and 03/10/1997 as well as Ex.P.32 order sheet and pleadings are relating to site No.61 and 62 of Katha No.150/1 of the said village and not relating to the property bearing site No.10 in dispute.
27. It is the case of the plaintiff that, defendant No.1 and 2 and father of defendant No.3 to 6 have executed Ex.P.24 GPA as well as Ex.P.27 affidavit in favour of their GPA holder Nalla Perumal S/o Bala Subramanyam for a sale consideration of Rs.10,900/- and also handed over possession of the schedule site, accordingly he has purchased the same under the sale deed dated 17/03/1997. Ex.P.7 to 12 and Ex.P.34 to 45 record of rights and mutation entries reveal that Thimmaiah S/o Muniswamappa and his brothers were the owners in possession of the property bearing Sy.No. 109/1 and 110/5 of Horamavu Agara village, but they do not disclose the name of plaintiff as owner or cultivator of any of the portion of the said properties. Though Ex.P.2 to 6 demand register extract, tax paid receipts and NIL encumbrance certificates reflect the name of the plaintiff Ravi Arjunan pertains to site No.10, Katha No.206/1, Horamavu Agara village to the extent of property measuring 30 x 52 feet with boundaries as shown in the plaint, but it is settled that record of rights, mutation entries and encumbrance 24 O.S. No.5466/2007 certificates are not the title deeds and no title can be conferred based on these documents. On the other hand the defendants would contend that they are neither the owners of the property bearing Katha No.206/1 nor it is available in the records maintained by Horamavu Agara or the said site No.10 is existing within the limits of Horamavu Sub-division, BBMP.
28. On perusal of Ex.P.24 alleged GPA as well as Ex.P.27 affidavit said to have been executed by defendant No.1, 2 and father of defendant No.3 to 6 in favour of GPA holder Nalla Perumal reveals that the alleged vacant site bearing No.10 formed out of Sy.No. 109/1 and 110/5 sitauted at Vaddarapalya, K.R. Puram Hobli, Bengaluru South Taluk. On the the other hand, as could be seen from the perusal of Ex.D.1 that the concerned Asst. Revenue Officer, Horamavu Sub-division, BBMP has issued an endorsement in response to the application filed by defendant No.5/D.W.1 that the said site No.10, Katha No.206/1 in Sy.No. 109/01 and 110/5 of Vaddarapalya are not standing in the name of defendants 1 to 6 or the plaintiff Dr. Ravi Arjunan. The defendant No.3 to 6 have seriously disputed execution of Ex.P.24 GPA and Ex.P.27 affidavit. On the other hand they have supported Ex.D.11 sale deed executed by defendant No.2 and his son in favour of defendant No.7 along with possession over the schedule property. As such, a doubt arises about authenticity of Ex.P.24 and 27 documents relied by the plaintiff as well as existence of schedule property as on the date of suit.
25O.S. No.5466/2007
29. So a question that arises at this juncture is whether the GPA holder Nalla Perumal has acquired any right under Ex.P.24 and 27 alleged GPA and affidavit from alleged owners of the property in dispute or not? In this regard, if we carefully go through the contents of GPA as well as affidavit we can find that the said Anjanappa and others have authorized the GPA holder to do all the acts on their behalf and also handed over schedule site in favour of the GPA holder/purchaser B. Nalla Perumal for sale consideration of Rs.10,900/-.
30. It is relevant to point out that, there is no pleading for having revoked or cancelled Ex.P.24 alleged GPA executed in favour of Nalla Perumal for the sale consideration, as such in view of the ratio laid down by our Hon'ble High Court in the decision (ILR 1993 KAR 2306) referred supra it can be held that agency coupled with interest cannot be revoked. But, admittedly Ex.P.24 alleged GPA as well as Ex.P.27 affidavit are unregistered documents. So based on these documents whether the GPA holder has acquired any right title or interest over the property in dispute or not. In this regard the Hon'ble Apex Court has held in the case of Suraj Lamp and Industries Pvt., Ltd., (2012) 1 SCC 656) referred supra by the counsel on both the side that though certain protection granted to such documents prior to the date of judgment, but further held that it will not affect the validity of sale agreements or powers of attorney executed in genuine transactions. But, in the case on hand the plaintiff has 26 O.S. No.5466/2007 sought the relief of declaration and possession, then as held by the Hon'ble Apex Court in 2009 AIR SCW 4739 at Point C referred supra by the counsel for defendants the burden of proof is on the plaintiff to make out his title and entitlement of possession and he cannot succeed on any alleged weakness in title or possession of the defendant. It is not in dispute that, Ex.P.24 GPA and Ex.P.27 affidavit are the unregistered documents, as such the said documents are hit by the provisions of Section 17 and 49 of the Registration Act.
31. It is settled that, transaction of the nature of GPA sales do not convey any title and cannot be held as valid mode of transfer of immovable property. As such, it can be said that the GPA holder of plaintiff had no absolute right over the disputed property to alienate the same in favour of the plaintiff. The defendant No.3 to 6 have strongly disputed the execution of Ex.P.24 and P.27 documents relied by the plaintiff. In these circumstances it can be held that, the alleged vendor of the plaintiff i.e. agent cannot do any act contrary to the interest without consent or knowledge of the principal based on alleged unregistered documents. In this regard, a plain reading of Section 214 and 215 of Contract Act, 1872 makes it clear that, it is the duty of an agent to use all reasonable diligence in communicating with his principal and to obtain instructions, as such without first obtaining consent of his principal or without his knowledge the agent cannot dishonestly conceal any fact in dealing with the said business.
27O.S. No.5466/2007
32. It is also worth to note that none of the copy of sale deeds, GPA or affidavit referred supra disclose about the alleged katha No.206/1 mentioned in Ex.P.2 and Ex.P.38 demand register extracts of Horamavu Agara village to believe that said Katha is relating to Sy.Nos. 109/1 and 110/5 of Vaddarahalli/Horamavu Agara, K.R. Puram Hobli, Bengaluru East (formerly known as Bengaluru South Taluk). P.W. 1 admits that he has neither got surveyed the disputed property prior to purchase to ascertain its existence nor produced approved layout plan along with original sale deed possessed by him before this court. For these reasons the plaintiff cannot claim title over the disputed property based on Ex.P.1 certified copy of the sale deed dated 01/03/1996 without there being supportive oral or original title deeds relating to the property in dispute.
33. On the other hand on perusal of evidence of D.W.1 along with Ex.D.1 to 9 we can find that the original owners of Sy.No. 109/1 and 110/5 viz., Anjanappa and his family members were the owners in joint possession of the land to the extent of 2 acres 23 guntas of Horamavu Agara village, K.R. Puram, Bengaluru East Taluk. It is also evident from the perusal of Ex.D.2 that O.S. No.3694/1997 filed by the sons of late Anjanappa against the uncles/Thimmaiah and others for the relief of partition and separate possession of their legal share in the said properties on the file of 22 nd ACCJ, Bengaluru came to be decreed on 04/02/2005. Further Ex.D.3 reveals that the land to the extent of 8 guntas 28 O.S. No.5466/2007 came to be alloted in favour of defendant No.2 Papaiah in the final decree proceedings passed in FDP No.19/2005. Ex.D.4/D.11 reveals that the defendant No.2 Papaiah and his son have executed registered sale deed dated 14/06/2006 in respect of 4 1/4th land in Sy.No. 110/5 out of 8 guntas in favour of defendant No.7 Channarayappa @ Gajendra. Ex.D.5 to 9, D.12 and 13 reveals that based on the said registered sale deed the name of defendant No.7 came to be mutated in the revenue records and continued from the year 2006-07 to till date to the extent of 4.04 guntas. Ex.D.14 electricity bills though do not disclose relevant survey number but as admitted by P.W. 1 they reflect R.R. number standing in the name of defendant No.7 Channarayappa @ Gajendra.
34. Apart from these aspects if we go through the observation made in Ex.D.15 copy of judgment passed in O.S No.15766/2004 on the file of 28th ACCJ, Mayo Hall unit we can find that one Narendra Kumar had also filed suit against defendant No.2 Papaiah i.e. vendor of defendant No.7 and others for the relief of permanent injunction claiming to be the owner in possession of house No.12, house list No.206/1 of Horamavu Agara village said to has been owned and possessed by Anjanappa and others, but wherein the owners of Sy.No. 109/1 and 110/5 appeared and filed their written statement contending that the plaintiff has created the said Katha and the said property was not owned by them as the same is not in existence, accordingly the said suit came to be dismissed.
29O.S. No.5466/2007
35. Again it is also evident from the perusal of Ex.D.19 that the defendants have obtained another information under RTI Act from the Asst. Revenue Officer, BBMP, Horamavu Sub-division, wherein it has been clarified that as per the demand register for the year 1994-95 in respect of house list katha No.206/1 Horamavu Agara, K.R. Puram Hobli, the Katha No.206/1 does not have any document in the said office. Further Ex.D.20 reveals that the defendant No.7 has also filed O.S. No.5812/2010 against the defendants viz., Mrs. Pearly Sunitha Samuel, Narendra Kumar and the present plaintiff Ravi Arjunan for the relief of permanent injunction contending that he is the owner in possession of the land bearing Sy.No. 110/5 measuring 4.04 guntas of Horamavu Agara village, K.R. Puram Hobli which has been purchased by the present defendant No.7 from the defendant No.2 and his son under registered sale deed dated 14/06/2006 and constructed a shed therein, but the said defendants tried to interfere with the possession based on alleged katha No.206/1, accordingly after contest the said suit came to be decreed with an observation that the present plaintiff who was defendant No.3 in that suit has failed to place any iota of evidence to substantiate that the suit schedule property relied by the plaintiff therein by name Channarayappa @ Gajendra and the property claimed by the defendant No.3 Ravi Arjunan therein are one and the same. Ex.P.46 reveals that plaintiff has filed RFA No.530/2017 and it is still pending for consideration before the Hon'ble High 30 O.S. No.5466/2007 Court, but as per the say of the plaintiff no order of stay has been forth coming before this court pertains to the property in dispute. So this court can take judicial notice of the previous litigations pertain to similar property based on Ex.P.2 and P.38 demand register extracts in respect of alleged Katha No.206/1 of Horamavu Agara village to the effect that the said Katha has been seriously disputed in earlier proceedings also. The plaintiff has not mentioned any survey number in the plaint schedule to the effect that, the site No.10, Katha No.206/1 relates to which survey number of the Horamavu Agara village. Further he has also failed to produce survey or CTS sketch before this court so as to identify the property in dispute. So looking from any angle the plaintiff has failed to show that he is the owner in lawful possession of the schedule property and the same is part and parcel of Sy.No. 110/5 relied by the defendant No.7/D.W.2 as on the date of the suit and thereafter dispossessed. For these reasons evidence of P.W. 1 and 2 cannot be believed as worthy of credence. The plaintiff has not produced original title deeds before this court. In his cross-examination admits that he has no hurdle to produce the same before this court, but he has not turned up, therefore, when the plaintiff has failed to prove the execution of Ex.P.1 certified copy of the sale deed 01/03/1996 in accordance with law and also withheld to produce the originals, then as held by the Hon'ble Apex Court in the case of H. Siddiqui referred supra and our Hon'ble High Court in the case of K. Gopal Reddy, in absence of primary 31 O.S. No.5466/2007 evidence, secondary evidence relied by the plaintiff cannot be believed and an adverse inference can validly be drawn against the plaintiff for with holding material document.
36. With regard to the possession and period of limitation is concern, the material on record indicates that, plaintiff could not have been in the possession of the suit schedule property as averred in the plaint. However, when the plaintiff got added the relief of declaration and possession, then this suit becomes comprehensive in nature, as such at this stage the said relief of possession cannot be decided under Section 6 of the Specific Relief Act as summary in nature. It is the case of the plaintiff that, he has been dispossessed from the defendant No.7 in the month of October 2008 i.e. during the pendency of the present suit. He got amended the plaint by adding the relief of possession on 16/01/2012. So, when the plaintiff is claiming that he was in the possession as on the date of the suit and thereafter he has been dispossessed, then the provisions of Article 64 of the Limitation Act would applicable. So, the period of limitation to claim possession is for 12 years from the date of dispossession. Admittedly the plaintiff has got amended the plaint by adding the relief of possession within the stipulated period of limitation. As such, Section 6 of the Specific Relief Act as well as the citation relied by the defendant No.7 referred supra not made applicable to the facts of the case on hand. But, in view of my discussion made supra the plaintiff has not established the title over the suit property, hence 32 O.S. No.5466/2007 question of granting the relief of mandatory injunction to hand over the possession of the schedule property or awarding damages does not arise. On the other hand the D.W. 1 and 2 discharged by making their version reasonably probable to believe that defendant No.7 became the owner in possession of the land bearing Sy.No. 110/5 to the extent of 4.04 guntas of Horamavu Agara village from its owners defendant No.2 and his son under a registered sale deed dated 14/06/2006 by adducing cogent oral and documentary evidence and thereby rebutted the claim of the plaintiff. Hence, I answer Addl. Issue No.1, 4 and 5 are in the negative.
37. Addl. Issue No.3:- The plaintiff has sought the relief of declaration and possession against defendant No.1 to 6 owners and defendant No.7 purchaser alleged to have trespassed over the suit property. But, plaintiff has not made the alleged GPA holder by name Nalla Perumal as party to the suit who is also one of the necessary/proper parties to the suit. As such the suit is also bad for non-joinder of necessary parties. Hence, I answer Addl. Issue No.3 is in the affirmative.
38. Addl. Issue No.4:- In view of my findings on Addl. Issue No.1, 4 and 5, plaintiff is not entitled for the relief of mandatory injunction and damages as prayed in the plaint. Hence, I answer Addl. Issue No.4 is in the negative.
33O.S. No.5466/2007
39. Issue No.3:- Having regard to the facts and circumstances of the case, I am of the opinion that, plaintiff has failed to prove his title over the schedule property as on the date of the suit, therefore he is not entitle for declaration, possession and mandatory injunction. On the other hand, defendants establishes that the schedule property or Katha No.206/1 is not the part and parcel of Sy.No. 109/1 or Sy.No. 110/5 of the Horamavu Agara village, K. R. Puram Hobli, Bengaluru East Taluk and does not exist as on the date of the suit. For these reasons written arguments filed by counsel for plaintiff do not have weight and cannot be accepted. On the other hand the written arguments filed by counsel for defendants holds good. Consequently, the suit of the plaintiff is liable to be dismissed without cost. In the result it can be held that Ex.P.1 copy of sale deed dated 01/03/1996 relied by the plaintiff became unenforceable against defendant No.7. Hence, I answer Issue No.3 is in the negative.
40. Issue No.4:- For the foregoing reasons, I proceed to pass the following :
OR D E R The suit of the plaintiff is hereby dismissed.
No order as to cost.
Draw decree accordingly.
(Typed to my dictation by the Stenographer directly on computer, corrected, signed by me and then pronounced in the open Court this the 16th day of November 2019.) ( C.D.KAROSHI ) V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU ***** 34 O.S. No.5466/2007 :ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW.1 : Dr. Ravi Arjunan
PW.2 : G. Karthikeyan
WITNESSES EXAMINED FOR THE DEFENDANTS:
DW.1 : Venkatesh
DW.2 : Channarayappa @ Gajendra
DOCUMENTS EXHIBITED FOR THE PLAINTIFFS:
Ex.P.1 Certified copy of the sale deed dated 01/03/1996
Ex.P.2 Demand Register extract
Ex.P.3&4 Tax paid receipts
Ex.P.3(a) Relevant portion marked in Ex.P3.
Ex.P.5&6 Encumbrance certificates
Ex.P.7 RTC extract
Ex.P.8 to 12 Mutation register extracts
Ex.P.13 to 17 Photographs
Ex.P.13(a) Negatives
to 17(a)
Ex.P.18 to 23 RTC extracts
Ex.P.24 General Power of Attorney
Ex.P.25 SAS receipts
Ex.P.26 Tax paid receipts
Ex.P.27 Affidavit dated 21/01/1988
Ex.P.27(a) Signature of defendant No.1
Ex.P.27(b) Signature of defendant No.2
Ex.P.28 Sale deed dated 18/09/1997
Ex.P.29 Sale deed dated 03/10/1997
Ex.P.30&31 Encumbrance Certificates
Ex.P.32 Certified copy of the order sheet in O.S.
No.15297/2006
Ex.P.33 Certified copy of the plaint of said suit
Ex.P.34 to 37 Tax paid receipts
Ex.P.38&39 Tax extracts dated 19/06/2019
Ex.P.40 BBMP Katha extract
Ex.P.41 Revenue receipt
Ex.P.42 BBMP tax paid receipt
Ex.P.43 RTI application and endorsement
Ex.P.44&45 Encumbrance Certificates
35
O.S. No.5466/2007
Ex.P.46 RFA N.530/2017 order sheet
Ex.P.47 Appeal memo
DOCUMENTS EXHIBITED FOR THE DEFENDANTS:- Ex.D.1 Endorsement dated 30/01/2013 by BBMP Ex.D.2 Certified copy of judgment and decree in O.S. No.3694/1997 Ex.D.3 Certified copy of the registration of final decree Ex.D.4 Certified copy of the sale deed dated 14/06/2006 Ex.D.5 to 7 RTC extract Ex.D.8&9 MR extract Ex.D-10 Death certificate of Anjanappa Ex.D.11 Certified copy of sale deed dated 14/06/2006 Ex.D.12 M.R. No.3 Ex.D.13 RTC (2006-07 to 2018-19) Ex.D-14 Certified copy of electricity bills and receipts (13) Ex.D.15&16 Certified copy of judgment and decree in O.S. No.15766/2004 Ex.D.17 Certified copy of the photographs (7) Ex.D.18 Certified copy of RTC Ex.D.19 Certified copy of endorsement (BBMP) Ex.D.20&21 Certified copy of judgment and decree in O.S. No.5812/2010 Ex.D.22 Electricity bills and receipts (5) ( C.D.KAROSHI ) V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU ***** 36 O.S. No.5466/2007 Judgment pronounced in open Court vide separate order.
O RD ER The suit of the plaintiff is hereby dismissed.
No order as to cost.
Draw decree accordingly.
( C.D.KAROSHI ) V ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU