Bangalore District Court
) Smt. Padmini Sadanandhan vs ) Sri. M.Kempanna on 17 February, 2021
1
O.S.No. 4078 / 2008
IN THE COURT OF THE XXIV ADDL.CITY CIVIL AND
SESSIONS JUDGE BANGALORE CITY (CCH-6)
Dated this the 17th day of February, 2021
Present: Smt. Meenaxi M. Bani,
B.Com., LLB(Spl),
XXIVAddl. City Civil & Sessions Judge,
Bangalore City.
ORIGINAL SUIT NO. 4078 of 2008
Plaintiffs : 1) Smt. Padmini Sadanandhan,
Aged about 54 years,
W/o Sri. S.Sadanandhan,
2) Sri. Sadanandhan,
Aged about 55 years,
S/o late Sri. R.Sampath,
Both are r/at No.22, Clarks Pet 'A' Street,
Armstrong Road Cross,
Bangalore-560 001.
(By Sri. K.B.S Manian, Advocate)
V/s
Defendants : 1) Sri. M.Kempanna,
Aged about 60 years,
S/o R. Muniveerappa,
2) Sri. Muniraju.K,
Aged about 40 years,
S/o M.Kempanna,
3) Sri. Munegowda.K,
Aged about 38 years,
S/o K.Kempanna,
D.1 to 3 are r/at Thanisandra village,
Krishnarajapuram Hobli,
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O.S.No. 4078 / 2008
Bangalore South Taluk, Bangalore-560 045.
4) G.Ramesh,
S/o Ganesh,
No.1816, 5th main, 10th cross,
R.P.C Layout, Vijaynagar,
Bangalore-560 040.
5) Sri.M.Harish,
S/o Muniyappa,
Aged about 48 years,
6) Sri.M.Ramesh,
S/o Muniyappa,
Aged about 46 years,
Defendants Nos.5 and 6 are r/at
No.14, Cubbonpet main road,
Bangalore-560 002
Represented by their G.P.A holder
G.Ramesh/ 4th defendant
7) Sri.Wadood,
S/o Mohammed Ghouse,
Aged about 44 years,
R/at Thanisandra, K.R.Puram Hobli,
Dr.S.R.K Nagar Post,
Bangalore-560 077
8) Mr. Mohammed Hanif,
S/o Mr.Abdul Rahim Saheb,
Aged about 43 years,
R/at No.118, 1st main, P & T Colony,
Venkateshpura, Arabic College Post,
Bangalore-560 054.
(By Sri.K.M.H for D.1 to D.3
Sri.A.N for D.4, D.5, 6 - Exparte
Sri.K.S.B for D.7
Sri. PSK for D.8, Advocates)
*****
3
O.S.No. 4078 / 2008
Date of institution of the suit: 21.06.2008
Nature of the suit: Declaration and
Permanent injunction
Date of commencement of 03.12.2009
recording of evidence:
Date on which Judgment was
pronounced 17.02.2021
Duration Days Month Years
26 07 12
:JUDGMENT:
This suit is filed by the plaintiffs seeking the relief of declaration of title of suit schedule properties and for permanent injunction.
2. Plaint avernments are as follows:-
Plaintiff No.2 is husband of plaintiff No.1. Plaintiff No.1 was employee in B.S.N.L. In the year 1998, plaintiff No.1 along with her colleagues contacted the 1st defendant to purchase certain residential sites made by the 1st defendant on the lands owned by 1st defendant known as Chamundeshwari Layout. Plaintiffs in particular had contracted to purchase two adjacent residential sites bearing site No.B- 7 and B-8, assessment No.62/1, of V.P.Katha No.62 situated at 4 O.S.No. 4078 / 2008 Thanisandra village, Krishnarajapuram Hobli, Bangalore South Taluk measuring each 1200 square feet respectively which are mentioned as schedule 'A' and 'B' properties. Defendant No.1 executed conveyance in favour of plaintiffs on 17.08.1998 under registered document.
Defendants Nos.2 and 3 are sons of 1st defendant had signed the sale deed as witnesses.
3. It is further averred that, 1st plaintiff's colleagues who had similarly obtained conveyances in respect of other sites in the same layout formed by the 1st defendant had either built their respective houses or transferred the same to other 3rd parties. Plaintiffs have decided to retain the sites, so that they could put up a residential building over it in due course of time. After purchase of sites, Katha transferred in their names in the Village Panchayath. Since then, plaintiffs are regularly paying taxes of the suit schedule properties. Plaintiffs are in possession over the suit schedule property since from the date of sale deed till this day.
4. Recently when 2nd plaintiff had on 02.06.2008 approached the Corporation office to pay taxes for the year 2008-09 and also approached the suit schedule properties, and noticed that some 5 O.S.No. 4078 / 2008 miscreants had built a compound wall on the road site with hallow cement blocks which was colour washed, and a old gate was erected. 2Nd plaintiff also noticed that a small temporary shed made of hallow blocks measuring approximately 6 feet by 8 feet had come up and the same was covered by asbestos sheet on the site bearing No.B-7. On enquiry with the neighbours, plaintiffs came to know that same was put up 5 days before. Plaintiffs also noticed electricity cable connection also made in the suit premises. Immediately, plaintiffs filed a complaint to the jurisdictional police on 03.06.2008. The plaintiffs also complained with BESCOM against giving power connection to the suit schedule properties. The BESCOM Inspector visited the site and instructed his staff not to allot RR number to the premises and also advised the plaintiffs to file the written complaint to Banaswadi Sub- Divisional Office of BESCOM.
5. It is further averred by the plaintiffs that, on 05.06.2008 plaintiffs and Sub-Inspector of jurisdictional police visited the spot and made enquiries with the neighbours and it was confirmed that construction put up about 10-15 days ago and shed was locked and no one was present. At that time it was still not clear as to who had put up 6 O.S.No. 4078 / 2008 construction illegally on the suit schedule properties. The police advised the plaintiffs to visit the station once again.
6. It is further averred that, on 08.06.2008 at about 9.30 a.m., the 3rd defendant called 1st plaintiff over phone for discussion and offered to pay money to relinquish the suit schedule properties. But plaintiffs refused to relinquish their right over the suit schedule properties. Plaintiffs noted down the mobile number of 3 rd defendant and approached the police once again and police authorities called 3 rd defendant to police station. 3Rd defendant came to the police station and confirmed before police authorities, that the suit schedule properties was sold to the plaintiffs and 4 th defendant had encroached upon the site and had put up construction. The police asked the 3 rd defendant to call 4th defendant over phone and he was unable to attend the police station, as he was at Doddaballapura. Once again on 12.06.2008 police called 4th defendant. When plaintiff once again visited the police station, 4th defendant also approached the police station and sought to claim right over the suit schedule properties on the basis of certain documents and claimed that he has put up construction and 4th defendant refused to part with his documents to 7 O.S.No. 4078 / 2008 the plaintiffs. In the circumstances police have advised the plaintiffs to approach the Court. Defendants are acting in collusion to defeat the plaintiffs legitimate interests in view of the rise of the property prices and also from the fact that the suit schedule properties have now come under the jurisdiction of Bangalore Mahanagara Palike. Hence, plaintiffs constrained to file the suit. Cause of action arose when defendants interfered with the plaintiffs possession over the suit schedule properties on 20.05.2008. Hence, prays to decree the suit.
7. Initially, suit filed by the plaintiffs for bare injunction against defendants Nos.1 to 4. subsequently plaintiffs got amended plaint by impleading defendants Nos.5 to 8 and also sought relief of declaration of their title by amending the plaint in the relief column.
8. In pursuance of suit summons, defendants Nos.1 to 4, 7 and 8 appeared before the court through their respective counsels. Defendants Nos.1 to 4 and 7 filed separate written statements. Defendant No.8 not filed written statement. Defendants Nos.5 and 6 not appeared before the court, hence they placed ex-parte.
9. Defendants Nos.1 to 3 filed written statement by denying 8 O.S.No. 4078 / 2008 the case of plaintiffs in to-to, contending that suit is misconceived, devoid of merits and liable to be dismissed and also denied the plaint avernments. It is contended that, in the year 1990 the original owners defendant No.1, Muniveerappa and Muninarayanappa have executed G.P.A dated. 19.12.1990 in favour of one Chandran in respect of site bearing Nos. 1 to 8 and 10 formed in Sy.No.62/1 measuring east to west 40 feet and north to south 270 feet situated at Tanisandra village. The original owners formed a layout in the land and the suit schedule property is part and parcel of the said land. The said G.P.A is still in force at the time of execution of under mentioned sale deeds and as on the date of execution of the said G.P.A, the said owners have delivered the possession of the said property in favour of said G.P.A holder. On the strength of said G.P.A, said Chandran has executed sale deeds dated. 22.10.1992 in respect of site Nos.7 and 8 in favour of one Sri.M.Harish and his brother Sri.M.Ramesh/ defendants Nos.5 and 6 sons of Muniswamy.
10. It is further contended that, since the date of purchase defendants Nos.5 and 6 have been in continuous possession and enjoyment of the suit schedule property by effecting Khata and other 9 O.S.No. 4078 / 2008 revenue entries duly transferred to their names and they exercising all rights of ownership. During the year 1998, plaintiffs came to defendant No.1's house and took the defendants Nos.1 to 3 to the office of the Sub-Registrar without disclosing the true facts, took their LTM's on two registered sale deeds, as if these defendants too had consented for the same. This is in respect of the suit schedule property and with the fraudulent intention to make wrongful gain to the plaintiffs and to complicate the matter. Now defendants came to know about the said sale deeds, hereby disown and disagree with their signatures and their alleged consent to the said sale deeds. The suit schedule property were already sold in favour of defendants Nos.5 and 6 and said two brothers that is M.Harish and M.Ramesh/ defendants Nos.5 and 6 have fenced both the sides with compound wall and are enjoying both the sites as one unit. There exists a small construction with AC sheet roofing, with a door and a window. The said brothers have inducted their workman Sri.Saravana to the said shed. The property has got electricity. The property now falls within the limits of BBMP, Byatarayanapura Ward. However, presently the CMC, Byatarayanapura is the Tax Collecting authority. Plaintiffs having full knowledge about the above facts, they have willfully not disclosed the 10 O.S.No. 4078 / 2008 real facts and managed to obtain ex-parte order of temporary injunction behind the back of these defendants and continued to harassing and threatening the defendants.
11. It is further contended that, defendants Nos.1 to 3 have already sold the suit schedule property in favour of M.Harish and M.Ramesh that is defendants Nos.5 and 6 in the year 1992 itself in the capacity as the GPA holders of the said owners. Plaintiffs are claiming the title of property on the basis of subsequent sale deeds dated. 17.08.1998. Therefore claim of the plaintiffs are unsustainable in law. The sale deeds are fake documents and they do not confer any right, title or interest to the plaintiffs over the suit schedule property. The suit by strangers against true owners is not maintainable in law. Regarding para Nos.5 to 18, defendants denied the contents of paras 5 to 18 and contended that, suit is not maintainable without prayer of declaration. Cause of action is imaginary. Hence, plaintiffs pray to dismiss the suit with costs.
12. Defendant No.4 filed separate written statement by denying the plaintiffs case by taking contentions that, defendants Nos. 5 and 6 being sons of Sri.Muniswamy. They are absolute owners in 11 O.S.No. 4078 / 2008 actual, physical and joint possession and enjoyment of suit schedule site Nos.7 and 8, Thanisandra Gramthana Khata No.508 totally measuring east to west 40 feet and north to south 60 feet, total rea of 2400 square feet for the last more than 15 ½ years they having purchased the said property from its original owners Muniveerappa, Kempanna and Muninarayanappa sons of Sri.Muniveerappa through their duly appointed GPA holder K.Chandran under two registered sale deeds dt. 22.10.1992. Since from date of purchase, defendants Nos.5 and 6 are in continuous possession and enjoyment of suit schedule property by effecting Khatha duly transferred to their names and they have paid property tax. Defendants Nos.5 and 6 have appointed defendant No.4 as their GPA holder to look after the affairs of the said property. The original documents are pledged with the financier as security. Defendants Nos.5 and 6 have fenced both the sides with compound wall and are enjoying both the sites as one unit. There exists a small construction with AC sheet roofing with a door and a window. Defendants Nos.5 and 6 have inducted their workman Saravana to the said shed and the property has got electricity and presently CMC Byatarayanapura is the Tax collecting authority. 12
O.S.No. 4078 / 2008
13. It is further contended that, plaintiffs are strangers to the suit schedule property. On 09.06.2008 between 9.30 p.m., and 10.00 p.m., in the absence of said worker Saravanan, plaintiffs have illegally trespassed the property, committed house burglary, removed the BESCOM electricity Meter, damaged and burnt the clothes of the worker, damaged the TV, threw away the house hold articles. When the worker Saravanan came to know about the same, informed the same to the brothers and defendant No.4 who has lodged a police complaint on 10.06.2008. The police arrived at the spot and inspected the spot. Defendant No.4 in the capacity as the GPA holder of said brothers has filed O.S.No.25839/ 2008 against the plaintiffs for the relief of permanent injunction on the file of CCH-21 (Mayo Hall, Bangalore) and said suit is adjourned for hearing on IA for temporary injunction. Plaintiffs knowing fully well the above facts not disclosed the real facts and managed to obtain ex-parte order of temporary injunction behind the back of defendant No.4 only to further harass him and to dispossess him by use of force and coercion. The real owners of suit schedule property already sold the suit schedule property in favour of M.Harish and M.Ramesh in the year 1992 itself under registered sale deeds dt. 22.10.1992. Whereas plaintiffs are claiming title to the 13 O.S.No. 4078 / 2008 property on the basis of subsequent sale deed dated. 17.08.1998. Hence, claim of plaintiffs unsustainable in law. Plaintiffs sale deeds are fake documents and they do not confer any right, title or interest over the suit schedule property. Defendant No.1 formed layout, but at no point of time, he had transferred any of the sites in favour of plaintiffs for construction of any residential building over the suit schedule property. Defendant No.4 denied the contents of para Nos.6 to 18 of the plaint as false and baseless. Hence, prays to dismiss the suit.
14. Defendant No.7 filed separate written statement by denying the plaintiffs case in to-to contending that, sale deeds claimed by plaintiffs are got up documents for the purpose of knocking of the valuable property. First defendant neither sold the property to third parties and he has not executed any conveyance as claimed by the plaintiffs. It is contended that in the plaint it is averred that first defendant has sold two sites to the plaintiffs bearing No.B-7 to 1 st plaintiff and B-8 to 2nd plaintiff under registered sale deeds dated. 17.08.1998. In the said sale deeds, it is mentioned that assessment No.62/1, that refers to the Survey Number. Accordingly, these two sites, B-7 and 8 are carved in Sy.No.62/1, Thanisandra village. In the 14 O.S.No. 4078 / 2008 sale deeds of plaintiffs at Page No.2, it is stated that 'whereas the vendor has got acquired the schedule property through the Family partition deed dated. 31.05.1990 and he has obtained the Katha in his favour and same is in his possession and enjoyment etc. In Page No.4 it is stated that, whereas vendor hereby assures the purchaser that the schedule property is his self acquired property and except vendor none others have any right, title or interest. It it is his self acquired property, in the said sale deeds he should have mentioned how he has got it and from whom has purchased the same etc. But these points are absent in the sale deeds.
15. It is further contended that, one Muniveerappa, father of 1st defendant has purchased 7 acres, 37 guntas of land in Sy.No.62/1 through sale deed dated. 28.03.1941. Said Muniveerappa along with his two sons i.e., Kempanna- 1st defendant and Muninarayanappa had jointly formed a layout sold all the sites to third parties. Out of the said sites, for ten sites they have executed GPA in favour of one K.Chandra who was broker. The said GPA was given valuable consideration. In the said GPA, it is mentioned that Sy.No.62/1 and also 'B' series. Accordingly, it is the ancestral property of 1 st defendant and not the 15 O.S.No. 4078 / 2008 self acquired property as stated in the created sale deed. Said Chandran executed ten sale deeds on behalf of Muniveerappa and his family members including 1st defendant Kempanna to different third parties. On 22.10.1992, defendant No.5 purchased site bearing No.7 through registered document and 6th defendant purchased site No.8 under registered document in the year 1992-93. Both the sale deeds are registered sale deeds.
16. It is further contended that, after executing the sale deed and transferring the title to the purchaser on behalf of family members of Muniveerappa, neither Muniveerappa nor any one of his family members including 1st defendant who executed sale deeds in favour of plaintiffs had any title to the said property to sell the property to third parties for the 2nd time as it has been done in this case in favour of plaintiffs. 7Th defendant's vendor was in peaceful possession and enjoyment of the suit schedule property. Hence there is a good transfer of title in favour of 7th defendant by 6th defendant. The alleged sale deed of plaintiff is not at all executed by 1 st defendant though not admitting but assuming that the 1st defendant executed sale deeds in favour of plaintiffs for the reason that a person cannot give better title 16 O.S.No. 4078 / 2008 than what he has got. Earlier 1 st defendant along with his co-owners sold the same sites on 22.10.1992 in favour of 5 th and 6th defendants. Plaintiffs verifying the title, the plaintiffs purchased the same site Nos.7 and 8 for the 2nd time which does not given title to them. After registration the owner of the property ceases to have any interest and all his rights in the property gets extinguished. If such a person were executed one more sale deed and get it registered in respect of the said property, he would not have any right to meddle with the property thereafter and said sale deeds have no value in the eye of law. Being on the date of 2nd sale deed, he is not owner of the property. Plaintiffs by suppressing all the facts filed this false suit. Therefore, they are not entitled for the relief sought for. Hence, prays to dismiss the suit.
17. On the basis of the above pleadings, my learned predecessor has framed the following:
ISSUES
1) Whether plaintiffs prove that they are in the possession of the suit schedule site?
2) Whether the plaintiffs prove the interference of the defendants?
3) Whether plaintiffs are entitled for the relief of permanent injunction?
4) What order or decree?
17
O.S.No. 4078 / 2008
ADDITIONAL ISSUES FRAMED ON 15.07.2019
1) Whether plaintiffs prove that, plaintiff No.1 is absolute owner in possession of item No.1 of suit schedule property and plaintiff No.2 is absolute owner in possession of item No.2 of suit schedule property as prayed?
2) Whether defendant No.7 proves that, he is absolute owner in possession of site bearing No.8 as per the sale deed dated. 04.11.2010 executed by defendant No.6?
3) Whether plaintiffs are entitled for the relief of declaration as prayed?
18. In order to prove plaintiffs case, plaintiff No.1 examined as Pw.1 and got examined one more witness Dinakara Murthy .C as Pw.2 and got marked 24 documents at Exs.P.1 to P.24. On the contrary, defendant No.7 examined as Dw.1 and got marked 21 documents as per Exs.D.21 to Ex.D.21.
19. Heard arguments advanced by learned counsels for plaintiffs and defendant No.1. Perused the records. Advocates for plaintiffs and defendant No.7 submitted their separate written synopsis.
20. My findings on the above Issues are:
Issue No.1 : In Negative 18 O.S.No. 4078 / 2008 Issue No.2 : In Affirmative Issue No.3 : In Negative Issue No.4 : As per final order for the following:
Additional Issue No.1 : In Negative Additional Issue No.2 : In Negative Additional Issue No.3 : In Negative REAS O NS Issue No.1, Additional Issue Nos.1 and 2 : These issues are inter-connected with each other, in order to avoid repetition, I have taken these issues together.
21. Initially, plaintiffs have filed suit for injunction, subsequently by amending the plaint sought the relief of declaration of plaintiffs title over the suit schedule properties which are described schedule as site No.B-7 and B-8, assessment No.62/1 of V.P.Khatha No.62 of Thanisandra village, measuring east to west 40 feet and north to south 30.
22. It is case of plaintiffs that, plaintiffs have purchased suit schedule properties under registered sale deed from defendant No.1 on 17.08.1998 and possession has been put on the same day and Khatha changed in the name of plaintiffs etc. First plaintiff purchased site 19 O.S.No. 4078 / 2008 No.B-7 and 2nd plaintiff purchased site B-8, whereas defendants Nos.1 to 3 appeared in this case denied the sale deeds.
23. Defendant No.1 contended that, original owners i.e., defendant No.1, Muniveerappa and Muninarayanappa have executed G.P.A in favour of Chandran in respect of site Nos.1 to 8 and 10 formed in Sy.No.62/1 each measuring east to west 20 feet and north to south 270 feet and delivered the possession of the property in favour of GPA holder. On the strength of G.P.A, said Chandran has executed sale deed dated. 22.10.1992 in respect of site Nos.7 and 8 in favour of Sri.M.Harish and Sri.M.Ramesh i.e., defendants Nos.5 and 6. Since the date of purchase, defendants Nos.5 and 6 are in possession of the said properties and they have fenced both the sides with compound wall and enjoying both the sites as one unit. There exists a small construction with A.C sheet roofing, with door and a window. It is also the contention of defendants that, in the year 1998 plaintiffs came to defendant's house and took the defendants Nos.1 to 3 to the office of Sub-Registrar and took their LTM with fraudulent intention to make wrongful gain to the plaintiffs and to complicate the matter. Now the defendants came to know about the alleged sale deeds and disown and 20 O.S.No. 4078 / 2008 disagree with their signatures etc. Since suit schedule properties were already sold in favour of defendants Nos.5 and 6 by GPA holder Chandran. The second sale deed is in favour of plaintiffs have no any value in the eye of law etc.
24. Along with the written statement, Xerox copy of power of attorney produced. Defendant No.4 filed separate written statement and taken up similar contention. In his written statement, defendant No.4 stated that original owners sold site Nos.7 and 8 of Thanisandra in favour of defendants Nos.5 and 6 for the last more than 15 ½ years and they were in possession of the suit schedule properties. Defendant No.4 is G.P.A holder of defendants Nos.5 and 6. They were enjoying the suit schedule properties and there exists a small construction with AC sheet roofing etc. Defendant No.7 is said to be purchaser of site No.8 from defendant No.6 on 04.11.2010 and also taken similar contention stating that, his vendor defendant No.6 so having title to the suit schedule property as per sale deed executed by G.P.A holder of defendants Nos.1 to 3 and he has got better title before purchasing site. He has effected the documents of both sides and came to know that, sale deed of plaintiffs is not valid. After purchase of site, defendant 21 O.S.No. 4078 / 2008 No.1 has put up construction and he was in peaceful possession of the same etc and by executing the sale deed, defendant No.6 transferred title in respect of this defendant and he is in possession of suit schedule property etc.
25. To prove plaintiffs case, plaintiff No.1 examined as Pw.1. In her evidence she has reiterated the plaint avernments. Plaintiff got examined one witness Dinakara Murthy who is said to be adjacent site owner and purchased site of defendant. After amendment, additional examination-in-chief of plaintiff filed and Pw.1 stated that, defendants Nos.5 to 8 are impleaded in this case as they made attempts to interfere with the possession of suit schedule properties and defendants Nos.5 to 8 have no manner of right, title or interest over the suit schedule properties. Defendant No.7 has filed O.S.No.2535 / 2011 against herself and plaintiff No.2, which is pending before CCH-5 and defendant No.8 filed a suit in O.S.No.26030 / 2014 against herself which is pending in CCH-73. Since defendants Nos. 7 and 8 are claiming their right over the suit schedule properties and she has sought declaration of her title over the suit schedule properties etc. Plaintiffs produced original sale deed dated. 17.08.1998 executed by 22 O.S.No. 4078 / 2008 defendant No.1 in favour of plaintiff Nos.1 and 2. It is noticed that, said sale deeds properties i.e., Ex.P.1 in respect of site No.8 and Ex.P.2 is in respect of Site No.B-7. On perusal of sale deeds, it is noticed that there is recital as "vendor has acquired the suit schedule properties through family partition deed dated. 31.05.1990" etc. Further on page No.4 at Para-2, it is recited that "vendor herself assures the purchaser that the suit schedule property is his self acquired property and except the vendor none others have any manner of right, title or interest over the suit schedule property etc.". In the cross-examination of Pw.1, she admitted the recital of the above sale deeds. In the cross-examination of Pw.1 on 20.06.2011 by defendant No.4, she stated that originally Sy.No.62/1 belongs to defendant No.1- Kempanna, defendant No.1 given partition deed and she has produced the same. But partition deed is not produced by the plaintiffs. Further Pw.1 has not denied the suggestion that, Kempanna defendant No.1 and his brothers given power of attorney in favour of K.Chandran in respect of suit schedule property. She pleads ignorance. Though Pw.1 denied that said G.P.A holder Chandran sold the suit schedule property in favour of defendants Nos.5 and 6. In cross-examination of Pw.1, it is suggested that to look after and maintain the suit schedule properties, defendants 23 O.S.No. 4078 / 2008 Nos.5 and 6 executed G.P.A in favour of defendant No.4, for that she stated that there is a house in the suit schedule properties. Pw.1 not specifically denied the suggestion that, Pw.1 voluntarily stated that there is one shed which is not suitable for residence. Pw.1 admitted about the complaint filed by defendants Nos.5 and 6 and Pw.1 though stated that she has produced layout map which is annexed to sale deed. But said sketch not produced.
26. Advocate for defendant cross-examined Pw.1 on 29.08.2019. Pw.1 admits that defendants Nos.2 and 3 are sons of defendant No.1 and they were major at the time of execution of sale deed, but they are not parties to the sale deed. Though stated that defendants Nos.2 and 3 have signed on the sale deed, whereas defendants Nos.1 to 3 specifically denied about the execution of sale deed of suit schedule property in favour of plaintiffs. Further, brothers of defendant No.1 are also not parties to the suit schedule property. Since, it is admitted fact that Sy.No.62/1 measuring 8 acre 10 guntas purchased by father of defendant No.1 i.e., Muniyappa on 28.02.1941 and said Muniyappa and his sons converted the lands into residential purpose, made layout, plots and sold them to different persons. Pw.1 24 O.S.No. 4078 / 2008 not specifically denied about the power of attorney given by Muniveerappa, Kempanna and Muninarayanappa in favour of K.Chandran and said K.Chandran sold the plots to different persons. Pw.1 pleads ignorance that, site Nos.1 to 10 executed to various persons i.e., Ranganatha, Padmanabhan, Govindaraju, Anandbabu, Deviprasad, Gangadhar, M.Harish, M.Ramesh, Ramaiah and Nagaraju respectively by K.Chandran, G.P.A holder of Muniveerappa in the year 1992. Further defendant No.7 produced certified copies of sale deeds executed by K.Chandran in favour of different persons which are marked at Exs.D.7, D.16 to 21. It is to be noted that, xerox copy of power of attorney is produced along with written statement of defendants Nos.1 to 3 . In the said document, it is mentioned that, in respect of site Nos.1, to 8 and 10 (B-serial) Sy.No.62/1 of Thanisandra village, K.R.Puram Hobli, power of attorney executed by Muniveerappa, defendant No.1 and Muninarayanappa in favour of K.Chandran on 19.12.1990. The sale deed of defendants Nos.5 and 6 goes to show that, said K.Chandran as a GPA holder of defendant No.1 and his brother executed site Nos.7 and 8 on 22.10.1992 in favour of defendant No.6 and sale deed of defendants Nos.5 and 6 produced at Exs.D.2 and Ex.D.21 in respect of site No.7. Pw.1 not specifically 25 O.S.No. 4078 / 2008 denied the execution of said sale deeds.
27. It is suggested to Pw.1 that, Kempanna already sold site No.8 to defendant No.4 and has not right to sell it again etc. Pw.1 has not specifically denied the execution of sale deed by Chandran, G.P.A holder of defendant No.1 and possession handed over to Muniverappa and Muninarayanappa in respect of plot Nos.1 to 10 etc.
28. On behalf of plaintiff, Pw.2 stated in his evidence that, he is also an employee of BSNL and around 8 to 10 employees of BSNL including plaintiff had bought sites from Kempanna between 1998 and 1999 in the same layout. Though they are all put in possession of their respective sites. He constructed building in his residential site, but plaintiff has not built house in the site and it is vacant etc. In the June 2008, plaintiff informed him about miscreants have tried to encroach upon the suit schedule property and he accompanied the plaintiff to the police station, lodged the police complaint etc. Pw.2 produced certified copy of his sale deed dated. 01.03.1999 and sketch at Exs.P.23 and 24. In cross-examination of Pw.2 by defendants counsel, he admitted about existence of shed in the suit schedule property, but he stated that nobody is residing therein. The Layout plan got marked through Pw.2 26 O.S.No. 4078 / 2008 at Ex.P.24. Pw.2 also not specifically denied about the power of attorney executed by defendant No.1 and his brother in favour of Chandran, but he denied that suit schedule property suit schedule property and his purchased site are ancestral properties of Kempanna.
29. On the other hand, defendant No.1 who examined as Dw.1 stated that, plaintiffs sale deeds are got up documents for the purpose of knocking of the valuable property. First defendant has not executed any conveyances in favour of plaintiff. He also deposed about the power of attorney executed by defendant No.1 and his colleagues in favour of one Chandran and said Chandran had executed 10 sale deeds on behalf of Muniveerappa and his family members including 1st defendant to different third parties. Out of that, defendant No.5 purchased site No.7 on the basis of sale deed dt. 22.10.1992, 6 th defendant purchased site No.8 and 6th defendant sold site No.8 under registered sale deed dt. 04.11.2010 etc. to support his case, defendant No.7 produced certified copies of sale deeds in respect defendant No.1 and sale deed of his vendor which are marked at Exs.D.1 and 2 and certified copies of sale deeds in respect of site Nos.1 to 7, 9 etc at Exs.D.16 to 21 and its typed copies etc. Defendant also produced 27 O.S.No. 4078 / 2008 encumbrance certificates, RTC's, tax paid receipts, 'B' Khata etc., which are marked at Exs.D.4 to 6, 8 to 15 etc.
30. In the cross-examination of Dw.1 by plaintiff's counsel, is suggested that he has no document to show that consideration amount etc. Dw.1 stated that, he has paid an amount to his vendor i.e., defendant No.5 Ramesh and he stated that he he got verified the document through lawyer. It is suggested that site No.B8 and site No.8 are different properties etc. But in the G.P.A, it is mentioned as 'B' series. To prove that site No.B-8 and Site No.8 are different property, no materials produced by the plaintiff. The documents produced by the plaintiff such as tax paid receipt, Khatha certificate, photographs are not helpful to the case of plaintiff. Admittedly, plaintiff's sale deeds are subsequent deeds and vendor already sold plot Nos.7 and 8 to defendants Nos.5 and 6 through P.A holder Chandran. Plaintiff who approached this court seeking the relief of declaration has to prove that the seller from which they have purchased sites have got valid title over the suit schedule property and they have got valuable marketable title at the time of selling the property etc. Initially, suit is filed by plaintiffs for bare injunction against defendants Nos.1 to 4 After filing 28 O.S.No. 4078 / 2008 written statement by defendants Nos.1 to 4, plaintiff got impleaded pliant and sought seeking the relief of declaration of their title and got impleaded defendants Nos.5 to 8.
31. It is to be noted that in the plaint para -8 and examination
-in-chief of Pw.1 in para No.6, it is stated that somebody has brought put up compound and also constructed a shed in the site. I tis further stated that, Pw.1 stated that 3rd defendant is ready to settle the payment to the plaintiffs, but plaintiff declined to take money etc., it can be gathered that family members of 1 st defendant have already sold the sites to 3rd parties, as there was police complaint they wants to settle the amount of the plaintiffs. The plaintiffs purchased the suit schedule sites subsequently that too from one of the co-owner of the sites. 4 Th defendant claims that he has put up construction. He has given all documents to the police station to show that his title. The title documents of the 4th defendant are earlier and plaintiffs documents are later one. The contention of defendant No.7 that defendant No.1 has not sold the site at all to the plaintiffs, but plaintiffs created the sale deeds and he was not having title to the schedule sites at the time of executing the sale deed.
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32. In the written statement in para No.12, it is stated that Muniveerappa, father of defendant No.1 has purchased 7 acres, 37 guntas of land in Sy.No.62/1 under sale deed dated. 28.03.1941. Said Muniveerappa along with his two sons i.e., Kempanna/1st defendant and Muninarayanappa had jointly formed a layout sold all the sites to third parties. Out of the said sites, for ten sites they executed a G.P.A in faovur of one K.Chandran and said Chandran executed ten sale deeds on behalf of Muniveerappa including 1st defendant to different 3rd parties. On 22.10.1992, 5th defendant purchased site No.7 and 6th defendant purchased site No.8. 6th defendant sold the site No.8 to the 7th defendant through sale deed dated. 04.11.2010. Along with statement, xerox copy of GPA produced and in the said GPA, it is mentioned about the purchase of 10 sites as 'B' series etc.
33. Pw.1 in her cross-examination admitted that site carved in Sy.No.62/1 purchased by defendant No.1 and his brothers. Plaintiffs have not produced partition deed. Ex.P.24 layout plan is not authenticated document, since same is not approved by any authority. Further, defendants have produced RTC of Sy.No.62/1 for the year 1969-70 to 1973-74 marked at Ex.D.8, clearly demonstrates that 30 O.S.No. 4078 / 2008 Sy.No.62/1 was the joint family property of Muniveerappa and his sons. The document produced by the defendants i.e., Exs.D.16 to 21 and encumbrance certificates pertaining to the sale deed marked at Exs.D.9 to 15 shows that, on 22.10.1992 one site No.8 was purchased by one Ramesh, defendant No.1 and said Ramesh sold the said site to defendant No.7 on 04.11.2010 as per Ex.D.1.
34. On considering the materials available on record, it reveals that defendant No.1 along with his co-owners sold site to third parties and transfers his ownership, he lost his ownership over the said sites. Defendant No.1 cannot sell the same sites to the plaintiffs for 2 nd time. Therefore sale deeds of plaintiffs are not valid and plaintiffs not get title over the property by subsequent sale deeds etc.
35. Further in the plaint it is stated by plaintiff that, somebody put up construction and constructed a shed which shows that plaintiff is not in possession of the suit schedule property. In the cross- examination, Pw.1 stated that in the year 1992 only there was electricity connection and she objected for the same and police complaint is filed against her. Plaintiff has not produced the copy of complaint.
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36. Advocate for defendant relied the following decisions:
(1) 2018(8) SCC 67, Euraka Builders and another V/s Gulab Chand (2) ILR 2008 KAR 2245 -Binny Mills Labour Welfare House V/s D.R.Mruthyumjaya Aradhya (3) ILR 2004 KAR 3079, Venkataramanappa V/s Narasaiah.
I have gone through the cites decisions. It is held that, "person is competent to transfer any property only if he has subsisting right, title, interest, in it - If on the date of transfer, right, title or interest or transferor stood extinguished transfer would be illegal and void" and "If a person execute one more sale deed and get it registered in respect of the said property, the said sale deed has no value in the eye of law. Reason being on the date of the second sale deed he is not owner of the property. Therefore, the purchaser would not get title to the property as the vendor could convey only that title which he has in the property on the date of execution and registration of sale deed" .
37. Considering the materials available on record and in the light of the principles enunciated in cited decisions, I am of the opinion that plaintiffs have unable to prove their case. Hence, I answer issue No.1 and additional issue No.1 and additional issue No.2 in the Negative. Accordingly, these issues are answered in Negative. 32
O.S.No. 4078 / 2008 Issue No.2
38. In para Nos.8 to 11 of plaint, plaintiff contended that, a small temporary shed made of hollow blocks and same was covered by asbestos sheet on the site bearing No.B-7. On enquiry it is noticed that, somebody put up temporary shed 5 days before and plaintiffs have noticed that an electricity cable connection made to the suit schedule premises. Immediately, plaintiff filed complaint before concerned police station. Further plaintiffs also filed complaint before BESCOM authority for giving electricity connection. Again on 05.06.2008 plaintiffs visited the police station and Sub-Inspector of jurisdictional police station visited the site and made inspection and it was not clear as to who had put up construction illegally on the suit schedule property. Again on 08.06.2008 3rd defendant called the 1st plaintiff over phone and called plaintiffs for discussion and offered to pay money to relinquish the suit schedule property. The plaintiffs refused to relinquish their rights over the suit schedule property etc. This allegations made by plaintiffs goes to show that, defendant No.4 claimed his title over the suit schedule property and documents i.e., sale deed of defendants Nos.4 and 5 are earlier sale deeds as discussed 33 O.S.No. 4078 / 2008 in earlier issues. Therefore, avernments made in the plaint about the interference over the suit schedule property cannot be acceptable, since plaintiffs vendor has already sold the site as their P.A holder i.e., Chandran in favour of defendants Nos.5 and 6 in the year 1992. When plaintiffs unable to prove possession over the suit schedule property, hence there is no question of alleged interference. Therefore, I am of the opinion that issue No.2 is to be answered in the Affirmative. Hence, I answer this issue in the Affirmative.
Issue No.3:
39. When plaintiffs unable to prove their lawful possession over the suit schedule property, as already discussed in earlier issues, plaintiffs have not entitled for discretionary relief of permanent injunction. Hence, I answer this issue in the Negative.
Additional Issue No.3:-
40. Since plaintiffs have not proved the burden casted upon them i.e., title over the suit schedule property. Hence plaintiffs have not entitled for the relief of declaration as sought. Hence, I answer additional issue No.3 in the Negative. Accordingly, this additional issue No.3 answered in the Negative.
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O.S.No. 4078 / 2008 Issue No.4:
41. As a result, I proceed to pass the following ORDER Suit filed by the plaintiffs is hereby dismissed. No order as to costs.
(Dictated to the Judgment Writer transcribed and typed by her and after corrections pronounced by me in Open Court on this the 17th day of February, 2021) (MEENAXI M. BANI) XXIV ADDL.CITY CIVIL & SESSION JUDGE, BANGALORE CITY.
ANNEXURE List of witnesses examined for plaintiffs:
PW.1 : Mrs. Padmini Sadanandhan
PW.2 : Dinakara Murthy.C.T
List of documents marked for plaintiffs:
Exs.P1, 2 : Original sale deeds dt. 17.08.1998
Exs.P.3,4 : Khatha issued by the Grama Panchayath
Exs.P.5 to 16: Tax paid receipts
Exs.P.17, 18 : Photographs
Ex.p.19 : Negatives
Ex.P.20 : Encumbrance certificate from the year 17.8.1995
to 31.3.2004
Ex.P.21 : Encumbrance certificate from the year 1.4.2004
to 6.6.2008
Ex.P.22 : Xerox copy of acknowledgment given by police
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Ex.P.23 : C/c of sale deed dt. 1.3.1999
Ex.P.24 : Rough sketch
List of witnesses examined for defendant:
D.W.1 : Wadood
List of documents marked for Defendant :
Ex.D.1 : C/c of sale deed dt. 4.11.2010
Ex.D.2 : C/c of sale deed dt. 22.10.1992
Ex.D.2(a) : Typed copy
Ex.D.3 : Encumbrance certificate
Ex.D.4 : B-Khata
Ex.D.5 : Tax paid receipt
Ex.D.6 : Encumbrance certificate
Ex.D.7 : C/c of sale deed dt. 27.2.1941
Ex.D.7(a) : Typed copy
Ex.D.8 : C/c of RTC
Ex.D.9 to 15: Seven encumbrance certificates
Ex.D.16 : C/c of sale deed dt. 18.12.1992
Ex.D.16(a) : Typed copy
Ex.D.17 : C/c of sale deed dt. 22.10.1992
Ex.D.17(a) : Typed copy
Ex.D.18 : C/c of sale deed dt.22.10.1992 in respect of site-4
Ex.D.18(a) : Typed copy
Ex.D.19 : C/c of sale deed dt. 8.12.1992 in respect of site-5
Ex.D.19(a) : Typed copy
Ex.D.20 : C/c of sale deed in respect of site No.6
Ex.D.20(a) : Typed copy
Ex.D.21 : C/c of sale deed in respect of site No.7
Ex.D.21(a) : Typed copy
(MEENAXI M. BANI)
XXIV ADDL.CITY CIVIL &
SESSIONS JUDGE,
BENGALURU CITY.
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