Bangalore District Court
Sri R.D. Parthiban S/O vs Sri V.Narayanappa on 19 December, 2018
Form
No.9
(Civil)
Title
Sheet for
Judgmen
t in Suits
R.P. 91
PRESENT: SMT. PRASHANTHI G,
B.A., (Law) LL.B.,
XXVII Additional City Civil Judge.
Dated this the 19 th day of December 2018
PLAINTIFF: Sri R.D. Parthiban s/o
R.Dharman, Major,
at present residing at No.L-58,
"Sumukha", 9th cross,
Lakshminarayanapuram,
Bangalore-560 021.
[By Sri V.Krishnan, Advocate]
/v e r s u s/
DEFENDANTS: 1. Sri V.Narayanappa
S/o Venkataramanappa,
Residing at No.15,
21st Main Road,
W.C.R. J.C.Nagar,
Bengaluru-560 086.
2. Sri Rudramurthy
S/o Late Jayanna,
Residing at No.40B,
2nd Main Road, 2nd Stage,
Manunathanagara,
Bengaluru-560 010.
2 O.S.3651/2016
3. The Government of Karnataka,
Department of Revenue,
Represented by its
Revenue Secretary,
Vidhana Soudha,
Bengaluru-560 001.
4. The Sub - Registrar,
Laggere village, Laggere,
Bengaluru.
[Exparte]
Date of institution of the : 12/05/2016
suit
Nature of the suit : For declaration and
injunction
Date of commencement of : 20/09/2018
recording of the evidence
Date on which the : 19/12/2018
Judgment was
pronounced.
: Year/ Month/s Day/s
Total duration s
2 7 7
(Prashanthi. G)
XXVII ACCJ: B'LORE.
Plaintiff filed this suit against defendants for the relief
of declaration that the agreement of sale dated 25/9/2009
registered in the office of the Sub-Registrar, Laggere in
3 O.S.3651/2016
Book-I, document No.LAG-1-0210/2009-10, CD No.LAGD
50 dated 25/9/2009 is no longer valid and has been
terminated and not binding on plaintiff; and for a
declaration that the alleged GPA and any other document
executed by the first defendant is unforceable and does not
binding on the plaintiff; and for the relief of permanent
injunction restraining the defendants permanently from
interfering with the peaceful possession and enjoyment of
the suit schedule property and cost of the suit.
2. In brief, the plaintiff's case is as under:
The plaintiff is the owner of suit schedule property.
On the basis of registered sale deed dated 14/6/2012 from
one S.Nagaraju. It is the specific case of the plaintiff that
from the date of purchase, he is in the possession and
owner of the property. The schedule property has been
mortgaged by the plaintiff and got sanctioned a sum of
Rs.15,00,000/- to him. The said amount is not yet been
cleared. When the plaintiff approached the Sub Registrar for
want of encumbrance certificate in the month of January
2016, he came to know that the first defendant has entered
4 O.S.3651/2016
into an agreement along with the second defendant on the
basis of power of attorney for a sum of Rs.3,00,000/-. The
alleged act of the first defendant is unlawful and illegal and
same is without the consent and knowledge of the plaintiff.
As per the encumbrance certificate the first defendant has
registered alleged agreement of sale in favour of the second
defendant by receiving consideration. The plaintiff has not
entered into any sale transaction either with the first
defendant or with the second defendant. All the
transactions are not binding on the plaintiff. The plaintiff is
in peaceful possession and enjoyment of the schedule
property the mortgage of the title deeds shows that plaintiff
is in actual possession of schedule property. When the
plaintiff contacted the first defendant and got issued the
notice to the defendants they did not reply. Afterwards
plaintiff published the public notice in Sanjevani newspaper
cancelling the alleged power of attorney in favour of the first
defendant. The entire transactions made by the first
defendant in favour of the second defendant has to be
cancelled as it is not binding on the plaintiff since he is not
5 O.S.3651/2016
a party to those transactions. Despite of issue of the notice,
the defendant did not answer. The agreement is of
25/9/2009 is time barred. The plaintiff is not in due or
received any money from the second defendant. In the
circumstances, the agreement stands terminated and the
defendants cannot claim any right on the basis of
agreement. Since the amount was not received by the
plaintiff and also the defendants do not have any right to
claim the schedule property. The cause of action for the
suit arose on 8/1/2016, 4/2/2016. Hence this suit.
3. The suit summons was duly served to the
defendants. In response to the suit summons issued by the
Court, defendants did not appear and contest the case of
the plaintiff. Hence they are placed exparte.
4. Thereafter the plaintiff in order to prove his case
examined himself as PW.1 and got marked Ex.P1 to Ex.P18
documents and closed his side of evidence.
5. Heard the arguments for plaintiff and perused
entire records of the case.
6 O.S.3651/2016
6. On perusal of the records of the case, the
following points those arise for my consideration:
(1) Whether the plaintiff proves that the
alleged agreement of sale dated
25/9/2009 is not binding upon him?
(2) Whether the plaintiff proves that
alleged GPA and other documents
executed by the first defendant is
unenforceable and does not binding
upon the plaintiff?
(3) Whether the plaintiff proves that he
is entitled to the permanent
injunction against the defendants as
he claimed in the suit?
(4) What order or decree?
7. My findings on the above points are as under:
Point No. 1) ............ In the affirmative;
Point No. 2) ............ In the affirmative;
Point No. 3) ............ In the affirmative;
Point No. 4) ............ As per final order for
the following:
8. POINT NO.1: In this case, plaintiff examined
himself as PW.1. He filed affidavit evidence in lieu of his
examination-in-chief. In his examination-in-chief he
7 O.S.3651/2016
reiterated the plaint averments. He produced in all 18
documents which are marked as Ex.P1 to Ex.P18.
9. In this case, inspite of service of summons
defendants did not appear and contest the case of the
plaintiff. Hence they are placed exparte.
10. It is the specific case of the plaintiff that he is the
owner of the suit schedule property by virtue of the sale
deed. All the documents are in his name. He has also
mortgaged the schedule property and availed a loan of
Rs.15,00,000/- which is still pending. Only when the
plaintiff went to the office of Sub Registrar for the purpose
of encumbrance certificate he came to know that first
defendant has entered an agreement along with the second
defendant with respect to the schedule property. How first
defendant has acquired the right in order to enter an
agreement of sale is not explained in the pleadings.
However, from the documents submitted by the plaintiff it is
clear that the plaintiff has only given certain some
signatures in the blank sheets to the defendants for the
8 O.S.3651/2016
purpose of looking after the sites since he is away from
Bengaluru. It is the contention of the plaintiff that the
defendants have misused the signatures and got the power
of attorney executed in his favour. However, this fact is not
stated in the plaint itself. There is no pleadings with regard
to the signatures given by the plaintiff in favour of first
defendant in order to look after the property and how the
defendants manipulated those documents in order to
execute power of attorney and registered agreement of sale.
Whatever the contentions stated in the legal notice are not
reuttered in the plaint itself. Ofcourse, as per the plaintiff
this matter comes to his knowledge only when he applied
for the encumbrance certificate. In this regard, he has sent
the legal notice to the defendant and also published a
public notice in the Sanjevani Newspaper cancelling the
alleged power of attorney. It is the specific case of the
plaintiff is that whatever the acts done by the defendants
with regard to the execution of the power of attorney as well
as execution of agreement of sale are illegal and not binding
upon the plaintiff. Moreover, the consideration mentioned in
9 O.S.3651/2016
the contract is not received by the plaintiff. The agreement
dated 25/9/2009 is time barred. Under these
circumstances, the agreement has no value and it has no
legal stand. Since the plaintiff has issued the legal notice as
per Ex.P5 and Ex.P6 to the Government of Karnataka, Sub
Registrar and the defendants, the same is not binding upon
him. Even after filing of this suit, the defendants did not
appear before the court to answer the charges levelled
against them. No attempt has been made by them to
contend the alleged power of attorney and agreement of sale
is valid and binding upon the plaintiff. So, without much
discussions, I am of the opinion that whatever the
agreement of sale executed in 25/9/2009 is not binding
upon the plaintiff. Hence I answer point no.1 in the
affirmative.
11. POINT NO.2: It is the specific case of the
plaintiff that the GPA and other documents executed by
first defendant is unenforceable and does not binding upon
the plaintiff. The plaintiff is not aware of the fact of
execution of power of attorney in favour of the first
10 O.S.3651/2016
defendant and agreement of sale executed by first defendant
in favour of second defendant. The only thing the plaintiff
has done is he has given some signatures to the first
defendant in order to look after his property since he was
not in the suit schedule properties. To support his claim, he
has given the legal notices as well as paper publication
cancelling the power of attorney. The matter of alleged
power of attorney and agreement of sale came to his
knowledge only when he approached the Sub Registrar
office for the purpose of availing the encumbrance
certificate. This fact has been reuttered in his chief
-examination in his evidence. However the evidence of PW.1
remains unchallenged since he has not cross-examined by
the defendants. There is no evidence to disbeleive the
version of PW.1. Hence, from the pleadings as well as
documents submitted by the plaintiff, I am of the opinion
that alleged GPA and agreement of sale executed by the first
defendant in favour of the second defendant is
unenforceable and not binding upon the plaintiff. Hence, I
answer point no.2 in the affirmative.
11 O.S.3651/2016
12. POINT NO.3: It is the specific case of the
plaintiff that he is the absolute owner of the suit schedule
property from the date of the sale deed dated 14/6/2012
and from the date of sale, he is in possession and
enjoyment of the suit schedule property. All the documents
with regard to the sale and all other documents are in the
name of the plaintiff. The plaintiff has also availed loan
from the Millennium Credit Co-operative society for
Rs.15,00,000/- by mortgaging the title deeds of the suit
schedule property. The aforesaid mortgage is still in
existence. Since the plaintiff is in the possession and title
holder of the suit schedule property, he has availed the loan
from the Millennium Credit Co-operative Society. This itself
shows that he is in the possession of the suit schedule
property. From the pleadings of the plaintiff itself, it is clear
that without the knowledge of the plaintiff, the defendant
no.1 got created the power of attorney as well as agreement
of sale in favour of defendant no.2. Moreover, from the
pleadings, it is clear that he is interfering with the legal
rights of the plaintiff. So, if at all the defenant no.1 and 2
12 O.S.3651/2016
succeeded to alienate the suit schedule property to third
party, definately plaintiff will be suffered that cannnot be
compensated in monetary terms. Hence, I am of the opinion
that if injunction is granted, the defendants can be
prevetend from alienating as well as dispossessing of suit
schedule property from the hands of the plaintiff. Hence, I
answer issue no.3 in the affirmative.
13. POINT NO.4: From my above discussions and
reasoning, the suit of the plaintiff deserves to be decreed. In
the result, I pass the following:
The suit of the plaintiff is decreed.
It is declared that the agreement of sale
dated 25/09/2009 registered in the
office of the Sub Registrar, Laggere in
Book-I, document No.LAG-1-02101/
2009-10, C.D.No.LAGD 50 dated
25/09/2009 is not binding on the
plaintiff.
13 O.S.3651/2016
Further it is declared that the alleged
GPA and any other document executed
by the first defendant is unenforceable
and does not binding on the plaintiff.
The defendants are restrained by way of
permanent injunction from interfering
with the plaintiff's peaceful possession
and enjoyment of the suit schedule
property.
No order as to costs.
Draw decree accordingly.
***
[Dictated to the Judgment Writer directly on computer, Script corrected, signed and then pronounced by me, in the Open Court on this the 19 th day of December 2018.] [PRASHANTHI .G] XXVII Additional City Civil Judge.
BANGALORE.
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 R.D. Parthiban
2. List of witnesses examined on behalf of the Defendant/s:
NIL.14 O.S.3651/2016
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P 1 Certified coy of Memorandum of mortgage of deposit of title deeds dated 31/7/2010 Ex.P 2 Certified copy of the agreement of sale dated 25/9/2009 Ex.P 3 Encumbrance certificate And Ex.P 4 Ex.P 5 Office copy of legan notice dated 5/3/2016 Ex.P 6 Office copy of legal notice Ex.P 7 Postal receipts (4 in numbers) Ex.P 8 Letter revoking the power of attorney dated 23/8/2010 Ex.P 9 Office copy of the legal notice dated 22/2/2016 Ex.P 10 Office copy of the legal notice dated 22/2/2016 Ex.P 11 Letter issued by plaintiff to B.Narayanappa dated 17/12/20111 Ex.P 12 Letter issued by plaintiff to B.Narayanappa dated 30/1/2016 Ex.P 13 Unserved postal covers To Ex.P15 Ex.P16 Postal acknowledgements and Ex.P17 Ex.P18 Public notice published in Sanjevani daily newspaper.15 O.S.3651/2016
4. List of the documents marked for the defendants:
Nil.
[PRASHANTHI. G] XXVII Additional City Civil Judge, BANGALORE.
...Judgment pronounced in the Open Court....
(Vide separate detailed judgment) The suit of the plaintiff is decreed.
It is declared that the agreement of sale dated 25/09/2009 registered in the office of the Sub Registrar, Laggere in Book-I, document No.LAG-1-02101/ 2009-10, C.D.No.LAGD 50 dated 25/09/2009 is not binding on the plaintiff.
Further it is declared that the alleged GPA and any other document executed by the first defendant is unenforceable and does not binding on the plaintiff.
The defendants are restrained by way of permanent injunction from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property. No order as to costs.
Draw decree accordingly.
[PRASHANTHI. G] XXVII Additional City Civil Judge.
BANGALORE.
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