Bangalore District Court
Smt.Kamalamma vs Shantharam on 2 December, 2017
[C.R.P. 67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF THE XIV ADDL. CITY CIVIL JUDGE
AT BANGALORE [CCH.No.28]
Present: Sri.G.A.Mulimani, M.A., LL.B. (Spl.)
XIV ADDL. CITY CIVIL JUDGE
Dated this the 2nd day of December, 2017
O.S.No.1274/2003
Plaintiff/s : Smt.Kamalamma
Since dead by her LRs
1. S.Manimohan,
s/o. late Kamalamma and late
Sundaresh Bhagavathar,
aged about 61 years, r/at No.5,
'Mahesha Nilaya', LIC Colony,
Yeshwanthapura,
Bengaluru-560022.
2. Dorairaju, s/o. late Kamalamma
& late Sundaresh Bhagavathar,
aged about 52 years, r/at No.4,
1st floor, 15th Main, 8th cross,
Bandappa Garden,
Muthyalanagara,
Bengaluru-560054.
3. S.Balasubramanyam,
s/o. late Kamalamma &
late Sundaresh Bhagavathar,
aged about 47 years,
r/at No.17/101, 1st floor,
5th 'A' cross, Sharadambanagar,
2 O.S.NO.1274/2003
Jalahalli village,
Bengaluru-560013.
R.Sharada,
w/o. late S.Rajashekar,
aged about 55 years,
Daughter in law of
late Kamalamma
4. S.R.Kiran Kumar,
s/o. late S.Rajashekar,
aged about 31 years,
Grand son of late Kamalamma
5. S.R.Arun Kumar,
s/o. late S.Rajashekar,
aged about 26 years,
Grand son of late Kamalamma
Plaintiffs No.1 to 3 are
r/at No.239, 1st floor,
Muthyalanagar Main Road,
Bandappa Garden,
Bengaluru-560054.
(By Sri.M.C.M.
Advocate)
- Vs -
Defendant/s : 1. Shantharam,
aged about 54 years,
s/o. late Mohanaram Kondaiah,
r/at Seededahalli,
Hesaraghatta Road,
Bengaluru-560073
2. Dr.Rudresh, major,
s/o. late M.Veerabhadraiah,
r/at 'Gayathri Complex'
3 O.S.NO.1274/2003
Seededahalli cross,
Hesaraghatta Main Road,
Bengaluru-560073.
3. Smt.Kamala, w/o. Dri.Rudresh,
r/at 'Gayathri Complex'
Seededahalli cross,
Hesaraghatta Main Road,
Bengaluru-560073.
(By Sri.T.M.R for D-1, Sri.A.M.S.
for D-2, Sri.H.M.S. for D-3)
Date of institution
of the suit : 18.02.2003
Nature of the suit :
[suit on pronote, suit
for declaration and
possession, suit
for injunction] : Declaration, Injunction
and Possession
Date of the commencement
of recording of the evidence: 01.09.2006
Date on which the
Judgment was pronounced : 02.12.2017
Year/s Month/s Day/s
Total Duration -14- -09- -14-
JUDGMENT
This suit is filed by the plaintiff against the defendants for the relief of declaration and injunction declaring that the plaintiffs are the absolute owners of the suit schedule property having encroached the same by defendant No.1 to 4 O.S.NO.1274/2003 3 and thereby ordering the actual possession of the same i.e., schedule 'A' and 'B' property by the plaintiffs herein, directing the defendants No.1 to 3 to quit and deliver vacant possession of the same to the plaintiffs and to grant Mandatory Injunction in favour of the plaintiff to demolish the existing structures illegally constructed by both defendants No.1 to 3 by encroaching the schedule property and to possess the same i.e., schedule 'A' and 'B' properties and to grant any such other relief as this Court may deem fit to grant in the interest of justice and equity.
2. The brief facts of the plaintiff's case is that :
The plaintiffs mother late Kamalamma was the absolute owner of the suit property same was purchased by late Kamalamma for a valuable consideration from its original owner S.B.Sampangi Ramaiah of Bengaluru through registered sale deed. The said Kamalamma was put in possession of the schedule property, by its previous owner S.B.Sampangi Ramaiah, after purchase the plaintiffs mother paid the property taxes, and the schedule property is free from all encumbrances, and standing in the name of Kamalamma till this day. The said Kamalamma was the house hold wife, was involved in bringing up plaintiffs, hence she could not give much attention towards the 5 O.S.NO.1274/2003 schedule property, and she possessed the schedule property legally, through the sale deed, and her interest would be safeguarded by the neighbouring site owners as well by the concerned revenue authorities.
3. Further it is the case of the plaintiff that, to the bad luck of the plaintiffs mother, during the year 1990 when plaintiffs entire family was on Hosur-Krishnagiri Road opposite to M/s Ashok Leyland Unit-II, they met with a serious accident, resulted in the loss of one hand of plaintiffs brother i.e., Kannan, he is no more, not having any legal heirs, and plaintiffs father also lost one hand, Kamalamma's grand son and daughter-in-law sustained head injuries, and all were admitted at St.Jhon's Medical Hospital, Bengaluru, wherein they were under treatment for more than 3 months, and Kamalamma, also sustained major injuries, was mentally shocked for years together, in the meantime, Kamalamma's daughter-in-law i.e., Uma, wife of Manimohan died on 19.12.1996, and plaintiffs father who was also seriously injured, and died on 15.07.2002, and all these unhappy incident, resulted in serious mental agony to late Kamalamma, as such she could not think of or give attention towards the suit schedule property, as it was very important and essential for the self survival of 6 O.S.NO.1274/2003 Kamalamma and plaintiffs family members, having come out of serious and shocking tragedies taken place, the plaintiffs mother very recently remembered and she had lost her memory power also for few years, about the suit schedule property on 25.03.2002 and went to see her suit schedule property, but was shocked to know that, there was no indication or marks showing the very existence of the suit schedule property.
4. Further it is the case of the plaintiff that, the plaintiffs mother immediately approached the office of the Sub- Registrar, Bengaluru North Taluk, Bengaluru and obtained nil encumbrance certificate in respect of the suit schedule property and thereafter with the help of her well wishers, made various efforts to locate the suit schedule property and during that period the suit schedule property was found, but was surprised and shocked to know that, there exist very recently built up shops and on further assertion, the plaintiffs mother Kamalamma came to know that the suit schedule property has been illegally encroached by defendants No.1 to 3 having got shared between them, the schedule property as 1/3rd to the defendants No.1 and 2/3rd share to the defendants No.2 and 3, by leaving in between their shops, a passage of 5 feet width running in 45 feet in 7 O.S.NO.1274/2003 length from East - West, and plaintiffs mother immediately met both the defendants and asked them about their illegal encroachment of suit schedule property, belonging to plaintiffs mother, but they have refused to entertain the claim of plaintiffs mother.
5. Further it is the case of the plaintiff that, the defendant No.1 is none other than the grand son of S.B.Sampangi Ramaiah the vendor of the plaintiffs mother, in respect of the suit schedule property, thereafter, the plaintiffs mother came to know that, the defendant No.1 by encroaching 1/3rd of the schedule property, has got constructed a shop, wherein presently Sarigama Bakery is running, the defendants No.2 and 3 got constructed two shops and carrying the business in the name of Ganesh Darshan and N.T. Stores, the plaintiffs further submit that the plaintiffs mother has been approaching both her defendants and requesting them to vacate and hand over the property 'A' and 'B' to plaintiffs mother, in view of their such encroachment is unlawful one and made number of visits to the defendants, but both of them have flatly refused to part with the possession of the entire schedule property to the plaintiffs mother, both the defendants have been claiming falsely that they are in possession and 8 O.S.NO.1274/2003 enjoyment of the schedule property. The claim put forth by the defendants in respect of the suit schedule property is wholly false, frivolous and untenable, the contentions of the defendants No.1 to 3 that they are the absolute owners of the schedule 'A' and 'B' property respectively, is also false and untenable, the defendants having encroached and occupied unlawfully, the schedule 'A' and 'B' property have no right to continue to be in occupation of the same, both the defendants are trespassers, they are guilty of suppression of material facts in putting forth their lawful owner of the schedule property, is entitled for possession and recovery of the schedule property, hence, have filed this suit.
6. In pursuance of the suit summons, the defendants No.1 to 3 have appeared through their respective counsels and filed the written statement and defendants No.1 and 2 have filed their separate written statement and defendant No.3 has filed memo to adopt the written statement filed by the defendant No.2.
In the written statement of defendant No.1 has denied all the suggestions leveled against him are false and further contended that he has constructed a building as absolute 9 O.S.NO.1274/2003 owner, such being the case the defendant encroaching the property of plaintiff does not arise and the plaintiff in order to knock of the property belongs to the defendant has filed frivolous suit and the plaintiff has not paid proper Court fee and the suit is barred by limitation and this Court has no jurisdiction and the plaintiff has not followed the mandatory provisions of Section 132 of Karnataka Land Revenue Act and the suit of the plaintiff is not maintainable and it is bad for non-joinder of necessary parties, hence, he prayed for dismiss the suit.
7. The defendant No.2 has filed written statement denying all the allegations leveled against him as false and interalia contending that the plaintiff was the owner of the suit schedule property, no doubt she has purchased the same under a registered sale deed dated 30.03.1973, the 2nd defendant's wife had already constructed a building on the half of the suit property measuring 45 x 19 feet with knowledge of the plaintiff in the year 1987 and since then he has been in occupation of the same, a fortnight prior to 16.08.1990 the plaintiff came to the suit property and noticed the construction already existed on half of the site purchased by her in 1973 i.e., the construction put up by the wife of the 2nd defendant Kamala. Thereafter, the 10 O.S.NO.1274/2003 plaintiff went away and three days thereafter again she came to the suit property along with Narasimhachar, Narayanaswamy and some others and requested the wife of 2nd defendant to give some compensation to her, since the wife of the 2nd defendant had constructed a building on her site three years prior to that date, as she was not able to recover possession by spending huge amount, she requested the wife of the 2nd defendant to pay half of the price of the site occupied by her prevailing as on that date, the panchayathdars who had accompanied the plaintiff after deliberation reached a conclusion that value of the half of the suit property as Rs.22,500/- and the 2nd defendant to pay the same to her and to settle her claim once for all, as determined by the panchayathdars, the plaintiff accepted to receive the said amount as compensation and also as the value of half of the suit property from the wife of the 2nd defendant, the wife of the 2nd defendant requested the panchayathdars as well as the plaintiff to accommodate her about 10 or 12 days to arrange funds to be paid to the plaintiff.
8. Further it is the case of the defendant No.2 is that, on 16.08.1990 the wife of the 2nd defendant arranged Rs.22,500/- and paid the said amount to the plaintiff in the 11 O.S.NO.1274/2003 presence of the very panchayathdars, who had intervened in the matter as stated above, the plaintiff upon receiving the said sum of Rs.22,500/- in cash from the wife of 2nd defendant executed a power of attorney and also an affidavit confirming the fact of her receiving the said sum of Rs.22,500/- from the wife of the 2nd defendant and the documents executed by the plaintiff in favour of his wife, as such the plaintiff cannot contend before this Court that the 2nd defendant encroached upon the suit property and got constructed a building recently, the plaintiff way back in 1990 itself had the knowledge regarding the construction put up by the wife of the 2nd defendant three years prior to 16.08.1990, the plaintiff executed a power of attorney in favour of the 2nd defendant conferring power to manage, sell, gift etc., in her favour.
9. Further it is the case of the defendant No.2 is that, the power of attorney and the agreement are of the even date which were executed by plaintiff in favour of wife of the 2nd defendant, having executed by the plaintiff in favour of the wife of the 2nd defendant, having executed such a document, the plaintiff cannot contend that the 2nd defendant is in an unauthorised possession of the suit property as on the date of filing the suit, the plaintiff has 12 O.S.NO.1274/2003 suppressing the transaction dated 16.08.1990 that had transpired between her and the wife of the 2nd defendant has approached this Court with this frivolous suit, as on the date of filing of the suit the plaintiff was very much aware of the fact that she lost her possession in the year 1987 itself, the plaintiff executed the document on 16.08.1990 in favour of the wife of the 2nd defendant, the wife of the 2nd defendant had paid full value of the half of the site as demanded by the plaintiff and the wife of the 2nd defendant after paying the value of the half of the site, nothing more was left out to be performed by her i.e., wife of the 2nd defendant, the plaintiff after receiving the entire sale consideration amount in the year 1990 itself recognized the possession of the wife of the 2nd defendant as a person whose position is that of a purchaser in part performance of the agreement of sale, thereafter, what remained was execution of the formal sale deed by the plaintiff in favour of the wife of the 2nd defendant, intelligently the plaintiff after executing the document on 16.08.1990 did not turn up.
10. Further it is the case of the defendant No.2 is that, in the year 2003 has filed the frivolous suit against the 2nd defendant by putting forth frivolous contentions with 13 O.S.NO.1274/2003 frivolous causes of action, the plaintiff having the knowledge of the transaction dated 16.08.1990 made by her with the wife of the 2nd defendant and being a party to the transaction she is stopped from contending that the 2nd defendant is a stranger to the property and that she has put up construction recently on half portion of the suit property by weaving a false story contending that she lost her daughter-in-law, her husband and she was admitted to the hospital etc., as such the 2nd defendant being the husband of Kamala is not a trespasser or encroacher as contended, he along with his wife is in lawful and paid possession of the suit property and they have every right to protect their possession. Particularly, the 2nd defendant's wife being in possession in part performance of the contract dated 16.08.1990 and they can never be thrown out from the suit property under the document dated 16.08.1990, the plaintiff undertook to come and execute a sale deed in favour of the wife of the 2nd defendant as and when she was called upon to execute the same. If the said clause is looked into the claim of the 2nd defendant's wife is not barred by limitation to seek for specific performance of contract.
14 O.S.NO.1274/200311. Further it is the case of the defendant No.2 is that, even otherwise also when the wife of the 2nd defendant had performed all her obligations under the document dated 16.08.1990 by paying full consideration of half of site in question, as such it is not open to the plaintiff to seek possession of the property from the 2nd defendant. As such the plaintiff has lost the right of ownership over the suit schedule property as on the date of filing of the suit as the plaintiff was not the absolute owner of suit property since her title came to be extinguished when she did not prefer any suit or possession within 12 years from the date of her losing possession of the suit property and the right to seek declaration and possession over the extinguished long ago prior to the institution of the suit. Hence, he prayed for dismiss the suit.
12. On the basis of the above materials, pleadings and documents, my predecessor-in-office has framed the following issues :
1. Whether the plaintiff proves her title to suit schedule property?
2. Whether the plaintiff proves that the defendants have illegally encroached the schedule property 15 O.S.NO.1274/2003 'A' and 'B' and constructed structure over it illegally?
3. Whether the defendants prove that he is the absolute owner of the suit schedule property and constructed the structure over the suit schedule property?
4. Whether the Court fee paid is sufficient?
5. Whether the suit is barred by limitation?
6. Whether the plaintiff is entitled for the reliefs sought?
7. What order or decree?
13. In order to prove the case of the plaintiff, the plaintiff is examined as P.W.1 and got marked document as Ex.P-1 to Ex.P-4. During the pendency of the suit, plaintiff died her LRs has examined as P.W.2 and identified Ex.P-1 and Ex.P-2, again he has filed fresh examination in chief by way of affidavit as P.W.2 and got marked Ex.P-5 to Ex.P-18, Ex.P-20 and Ex.P-21. On the other hand, the 1st defendant is examined as D.W.1 and got marked Ex.D-1 to Ex.D-34 and the 2nd defendant is examined as D.W.2 and got document marked Ex.D-35 and Ex.D-36, one witness is examined as D.W.3 and got marked Ex.D-38 to Ex.D-41 16 O.S.NO.1274/2003 and another witness is examined as D.W.4 and got marked Ex.D-37 and Ex.D-42.
14. So far as marking of the documents are concerned my predecessor has not marked the documents correctly and both the counsels have filed joint memo on 14.11.2017 stating that :
"The undersigned Advocates appearing on behalf of the plaintiff and the defendant No.1 submit that, the Ex.P-1 certified copy of the registered sale deed dated 30.03.1973 marked through P.W.1 Smt.Kamalamma and Ex.P-5 the original sale deed dated 30.03.1973 marked through P.W.2 Sri.Manimohan and the said documents are one and the same and further submit that the Ex.P-2 encumbrance certificate marked through P.W.1 Smt.Kamalamma and Ex.P-2 SPA marked through P.W.2 Sri.Manimohan may be treated as Ex.P-2 and further the exhibits marked as Ex.P-18, Ex.P-19 and Ex.P-21 through P.W.2 Sri.Manimohan may be read as Exhibit as Ex.P-18, Ex.P-19 and Ex.P-17 O.S.NO.1274/2003
20 and further submit that during the course of cross examination of P.W.2 Sri.Manimohan, the possession certificate issued by Bank of India Malleshwaram Branch dated 22.12.2004 has been confronted and same is shown as Ex.D-1 and during the examination chief of D.W.1 Sri.Shantharam by oversight the House/Land Assessment extract has been again marked as Ex.D-1 and the said Exhibits marked twice may be treated as Ex.D-1 and the undersigned Advocates have no objections to record the above submission and appropriate orders may be passed in this regard, in the interest of justice and equity."
Hence, the documents are considered as per memo dated 14.11.2017. Heard the arguments. The learned counsel for the plaintiff has filed written arguments.
15. The answers to the above issues are as follows :
Issue No.1 : In the Affirmative
Issue No.2 : In the Affirmative
Issue No.3 : In the Negative
Issue No.4 : Accordingly
18 O.S.NO.1274/2003
Issue No.5 : Accordingly
Issue No.6 : In the Affirmative
Issue No.7 : As per final order
REASONS
16. ISSUE No.1 TO 4 : These issues are interlinked
together, hence, to avoid repetition of the same facts, have discussed both the issues simultaneously for my common consideration.
It is the specific case of the plaintiff that, the plaintiffs mother late Kamalamma was the absolute owner of the immovable property, residential site, formed in Sy.No.15 of Seededahalli village, Yeshwanthpura Hobli, Bengaluru North Taluk, now known as situated at Hesaraghatta Main Road, Seededahalli Cross, Bengaluru-73 admeasuring 45 x 30 feet, the site property purchased by the plaintiffs mother late Kamalamma for a valuable consideration from its original owner S.B.Sampangi Ramaiah of Bengaluru through registered sale deed vide document No.5457/72-73, Book- I, Volume-2864, pages 158-160 dated 30.03.1973, dated 18.04.1973, in the office of Sub-Registrar, Bengaluru North Taluk, which is morefully described as schedule property. The said Kamalamma was put in possession of the schedule property, by its previous owner S.B.Sampangi Ramaiah, in 19 O.S.NO.1274/2003 pursuance of the said registered sale deed dated 30.03.1973, executed in her favour. Subsequent to the schedule property purchased by plaintiffs mother, the plaintiffs mother paid the property taxes, the plaintiffs are also producing the relevant documents and the schedule property is free from all encumbrances and standing in the name of plaintiffs mother Kamalamma till this day.
17. Further it is the specific case of the plaintiff is that, the said Kamalamma was the house hold wife, was involved in bringing up plaintiffs, hence could not give much attention towards the schedule property, with the fond understanding that she has possessed the schedule property legally, through the sale deed, duly registered in Kamalamma's name and her interest would be safeguarded by the neighbouring site owners as well by the concerned revenue authorities, to the bad luck of the plaintiffs mother in the year 1990 when plaintiffs entire family was on Hosur- Krishnagiri Road opposite to M/s Ashok Leyland Unit-II, they met with a serious accident, resulted in the loss of one hand of plaintiffs brother i.e., Kannan, he is no more, not having any legal heirs, and plaintiffs father also lost one hand, Kamalamma's grand son and daughter-in-law sustained head injuries and all were admitted at St.Jhon's 20 O.S.NO.1274/2003 Medical Hospital, Bengaluru, wherein they were under treatment for more than 3 months, and plaintiffs mother Kamalamma, who had also sustained major injuries, was mentally shocked also for years together and in the meantime, Kamalamma's daughter-in-law i.e., Uma, wife of Manimohan and also died on 19.12.1996 and plaintiffs father who was also seriously injured, and having lost one hand, died on 15.07.2002.
18. Further it is the specific case of the plaintiff is that, all these unhappy incident, resulted in serious mental agony to late Kamalamma and as such could not think of or give attention towards the suit schedule property, as it was very important and essential for the self survival of Kamalamma and plaintiffs father and plaintiffs family members, having come out of all the above serious and shocking tragedies taken place, the plaintiffs mother very recently remembered and she had lost her memory power also for few years, about the suit schedule property on 25.03.2002 and went to see her suit schedule property, but was shocked to know that, there was no indication or marks showing the very existence of the suit schedule property, the plaintiffs mother immediately approached the office of the Sub-Registrar, Bengaluru North Taluk, Bengaluru and 21 O.S.NO.1274/2003 obtained nil encumbrance certificate in respect of the suit schedule property and thereafter with the help of her well wishers, made various efforts to locate the suit schedule property and during that period the suit schedule property was found, but was surprised and shocked to know that, there exist very recently built up shops and on further assertion, the plaintiffs mother Kamalamma came to know that the suit schedule property has been illegally encroached by defendants No.1 to 3 having got shared between them, the schedule property as 1/3rd to the defendants No.1 and 2/3rd share to the defendants No.2 and 3, by leaving in between their shops, a passage of 5 feet width running in 45 feet in length from East - West, and plaintiffs mother immediately met both the defendants and asked them about their illegal encroachment of suit schedule property, belonging to plaintiffs mother, but they have refused to entertain the claim of plaintiffs mother.
19. Further it is the specific case of the plaintiff is that, the defendant No.1 is none other than the grand son of S.B.Sampangi Ramaiah the vendor of the plaintiffs mother, in respect of the suit schedule property, thereafter, the plaintiffs mother came to know that, the defendant No.1 by encroaching 1/3rd of the schedule property, has got 22 O.S.NO.1274/2003 constructed a shop, wherein presently Sarigama Bakery is running, the defendants No.2 and 3 got constructed two shops and carrying the business in the name of Ganesh Darshan and N.T. Stores, the plaintiffs further submit that the plaintiffs mother has been approaching both her defendants and requesting them to vacate and hand over the property 'A' and 'B' to plaintiffs mother, in view of their such encroachment is unlawful one and made number of visits to the defendants, but both of them have flatly refused to part with the possession of the entire schedule property to the plaintiffs mother, both the defendants have been claiming falsely that they are in possession and enjoyment of the schedule property. The claim put forth by the defendants in respect of the suit schedule property is wholly false, frivolous and untenable, the contentions of the defendants No.1 to 3 that they are the absolute owners of the schedule 'A' and 'B' property respectively, is also false and untenable, the defendants having encroached and occupied unlawfully, the schedule 'A' and 'B' property have no right to continue to be in occupation of the same, both the defendants are trespassers, they are guilty of suppression of material facts in putting forth their lawful owner of the schedule property, is entitled for possession and recovery of the schedule property.
23 O.S.NO.1274/200320. It is the specific case of the defendant No.1 is that, he has constructed a building as absolute owner, such being the case the defendant encroaching the property of plaintiff does not arise and the plaintiff in order to knock of the property belongs to the defendant has filed frivolous suit and the plaintiff has not paid proper Court fee and the suit is barred by limitation and this Court has no jurisdiction and the plaintiff has not followed the mandatory provisions of Section 132 of Karnataka Land Revenue Act and the suit of the plaintiff is not maintainable and it is bad for non-joinder of necessary parties.
21. It is the specific case of the defendant No.2 is that, the plaintiff was the owner of the suit schedule property, no doubt she has purchased the same under a registered sale deed dated 30.03.1973, the 2nd defendant's wife had already constructed a building on the half of the suit property measuring 45 x 19 feet with knowledge of the plaintiff in the year 1987 and since then he has been in occupation of the same, a fortnight prior to 16.08.1990 the plaintiff came to the suit property and noticed the construction already existed on half of the site purchased by her in 1973 i.e., the construction put up by the wife of the 2nd defendant Kamala. Thereafter, the plaintiff went 24 O.S.NO.1274/2003 away and three days thereafter again she came to the suit property along with Narasimhachar, Narayanaswamy and some others and requested the wife of 2nd defendant to give some compensation to her, since the wife of the 2nd defendant had constructed a building on her site three years prior to that date, as she was not able to recover possession by spending huge amount, she requested the wife of the 2nd defendant to pay half of the price of the site occupied by her prevailing as on that date, the panchayathdars who had accompanied the plaintiff after deliberation reached a conclusion that value of the half of the suit property as Rs.22,500/- and the 2nd defendant to pay the same to her and to settle her claim once for all, as determined by the panchayathdars, the plaintiff accepted to receive the said amount as compensation and also as the value of half of the suit property from the wife of the 2nd defendant, the wife of the 2nd defendant requested the panchayathdars as well as the plaintiff to accommodate her about 10 or 12 days to arrange funds to be paid to the plaintiff.
22. Further it is the specific case of the defendant No.2 is that, on 16.08.1990 the wife of the 2nd defendant arranged Rs.22,500/- and paid the said amount to the plaintiff in the 25 O.S.NO.1274/2003 presence of the very panchayathdars, who had intervened in the matter as stated above, the plaintiff upon receiving the said sum of Rs.22,500/- in cash from the wife of 2nd defendant executed a power of attorney and also an affidavit confirming the fact of her receiving the said sum of Rs.22,500/- from the wife of the 2nd defendant and the documents executed by the plaintiff in favour of his wife, as such the plaintiff cannot contend before this Court that the 2nd defendant encroached upon the suit property and got constructed a building recently, the plaintiff way back in 1990 itself had the knowledge regarding the construction put up by the wife of the 2nd defendant three years prior to 16.08.1990, the plaintiff executed a power of attorney in favour of the 2nd defendant conferring power to manage, sell, gift etc., in her favour. The power of attorney and the agreement are of the even date which were executed by plaintiff in favour of wife of the 2nd defendant, having executed by the plaintiff in favour of the wife of the 2nd defendant, having executed such a document, the plaintiff cannot contend that the 2nd defendant is in an unauthorised possession of the suit property as on the date of filing the suit.
26 O.S.NO.1274/200323. Further it is the specific case of the defendant No.2 is that, the plaintiff has suppressing the transaction dated 16.08.1990 that had transpired between her and the wife of the 2nd defendant has approached this Court with this frivolous suit, as on the date of filing of the suit the plaintiff was very much aware of the fact that she lost her possession in the year 1987 itself, the plaintiff executed the document on 16.08.1990 in favour of the wife of the 2nd defendant, the wife of the 2nd defendant had paid full value of the half of the site as demanded by the plaintiff and the wife of the 2nd defendant after paying the value of the half of the site, nothing more was left out to be performed by her i.e., wife of the 2nd defendant, the plaintiff after receiving the entire sale consideration amount in the year 1990 itself recognized the possession of the wife of the 2nd defendant as a person whose position is that of a purchaser in part performance of the agreement of sale, thereafter, what remained was execution of the formal sale deed by the plaintiff in favour of the wife of the 2nd defendant, intelligently the plaintiff after executing the document on 16.08.1990 did not turn up.
24. Further it is the specific case of the defendant No.2 is that, in the year 2003 has filed the frivolous suit against the 27 O.S.NO.1274/2003 2nd defendant by putting forth frivolous contentions with frivolous causes of action, the plaintiff having the knowledge of the transaction dated 16.08.1990 made by her with the wife of the 2nd defendant and being a party to the transaction she is stopped from contending that the 2nd defendant is a stranger to the property and that she has put up construction recently on half portion of the suit property by weaving a false story contending that she lost her daughter-in-law, her husband and she was admitted to the hospital etc., as such the 2nd defendant being the husband of Kamala is not a trespasser or encroacher as contended, he along with his wife is in lawful and paid possession of the suit property and they have every right to protect their possession. Particularly, the 2nd defendant's wife being in possession in part performance of the contract dated 16.08.1990 and they can never be thrown out from the suit property under the document dated 16.08.1990, the plaintiff undertook to come and execute a sale deed in favour of the wife of the 2nd defendant as and when she was called upon to execute the same. If the said clause is looked into the claim of the 2nd defendant's wife is not barred by limitation to seek for specific performance of contract. Even otherwise also when the wife of the 2nd defendant had performed all her obligations under the 28 O.S.NO.1274/2003 document dated 16.08.1990 by paying full consideration of half of site in question, as such it is not open to the plaintiff to seek possession of the property from the 2nd defendant. As such the plaintiff has lost the right of ownership over the suit schedule property as on the date of filing of the suit as the plaintiff was not the absolute owner of suit property since her title came to be extinguished when she did not prefer any suit or possession within 12 years from the date of her losing possession of the suit property and the right to seek declaration and possession over the extinguished long ago prior to the institution of the suit.
25. In order to prove these issues, the plaintiff herself has filed her sworn affidavit in lieu of the chief-examination, wherein she has reiterated the same contents which she has narrated in her plaint, hence, in order to avoid repetition of the same, I have not discussed once again. In support of his chief examination she has produced 4 documents as Ex.P-1 to Ex.P-4 for the sake of convenience I have summarized these documents as Ex.P-1 is the certified copy of the sale deed dated 30.03.1973, Ex.P-2 is the encumbrance certificate, Ex.P-3 is another encumbrance certificate, Ex.P-4 is the land sketch, and plaintiff LRs 1 is examined as P.W.2 and identified Ex.P-1 29 O.S.NO.1274/2003 and Ex.P-2 and filed another fresh affidavit in lieu of the chief examination, wherein he has reiterated the same contents which he has narrated in his plaint, hence, in order to avoid repetition of the same, I have not discussed once again. In support of his chief examination he has produced 16 documents as Ex.P-5 to Ex.P-21 for the sake of convenience I have summarized these documents as Ex.P-5 is the certified copy of the sale deed dated 30.03.1973, Ex.P-6 is the copy of index of land, Ex.P-7 to Ex.P-11 are the tax paid receipts, Ex.P-12 to Ex.P-17 are the encumbrance certificates, Ex.P-18 is the record of rights, Ex.P-20 and Ex.P-21 are the kandayam receipts.
26. In order to disprove the case of the plaintiff, the defendant No.1 has filed his sworn affidavit in lieu of the chief-examination, wherein he has reiterated the same contents which he has narrated in his written statement, hence, in order to avoid repetition of the same, I have not discussed once again. In support of his chief examination he has produced 34 documents as Ex.D-1 to Ex.D-34 for the sake of convenience I have summarized these documents as Ex.D-1 to Ex.D-3 are the land tax assessment register extracts, Ex.D-4 to Ex.D-7 are the tax paid receipts, Ex.D-8 is the service certificate issued by 30 O.S.NO.1274/2003 KEB, Ex.D-9 is the tax paid receipt, Ex.D-10 is the electricity bill, Ex.D-11 is the receipt, Ex.D-12 to Ex.D-24 are the tax paid receipts, Ex.D-25 and Ex.D-26 are the trade licenses, Ex.D-27 is the letter addressed to the Executive Engineer, Project Division, Dasarahalli, Ex.D-28 and Ex.D-29 are the electricity bill and receipt, Ex.D-30 to Ex.D-34 are the photographs with CD and cash bill.
27. The 2nd defendant is examined D.W.2 has filed his sworn affidavit in lieu of the chief-examination, wherein he has reiterated the same contents which he has narrated in his written statement, hence, in order to avoid repetition of the same, I have not discussed once again. In support of his chief examination he has produced 2 documents as Ex.D-35 to Ex.D-36 for the sake of convenience I have summarized these documents as Ex.D-35 is the General power of attorney dated 16.06.1990 and Ex.D-36 is the affidavit.
28. One witness is examined as D.W.3 has filed his sworn affidavit in lieu of the chief-examination, wherein he has supported the case of defendants, and got marked 4 documents as Ex.D-38 to Ex.D-41 for the sake of convenience I have summarized these documents as Ex.D-
31 O.S.NO.1274/200338 is the LIC policy dated 31.08.2000, Ex.D-39 is the membership card, Ex.D-40 is the postal cover, Ex.D-41 is the insurance policy dated 12.09.2000.
29. Another witness has filed his sworn affidavit in lieu of chief examination as D.W.4, wherein he has supported the version of defendants, and got marked 2 documents as Ex.D-37 and Ex.D-42 for the sake of convenience I have summarized these documents as Ex.D-37 is the Oriental Insurance Policy dated 04.09.1998 and Ex.D-42 is the cash bill dated 11.06.1991.
30. During the cross examination of P.W.2 that, he has not filed any document to show that the remaining plaintiffs have authorised him to depose on their behalf, the suit schedule property is not assigned the site number. He do not know the total extent of Sy.No.15 of Bagalgunte village and also he do not know the boundary description of Sy.No.15. It is true that Sy.No.15 is big extent of land. Seededahalli village which comes to Bengaluru City Corporation. One Sampangiramaiah has formed layout in Sy.No.15 he has not the said layout plan of the suit property as it is not within his custody, the extent of the suit schedule property is 45 x 30 feet which is bounded 32 O.S.NO.1274/2003 towards East by Hesaraghatta road, West by remaining land of Sampangiramaiah, North by encroached area by Shantha Kumar, South by property of Dr.Rudresh. There is a service garage constructed in the Shantha Kumar's property. He do not know the surrounding sites number of Rudresh's property. He has seen the suit schedule property at first time in the year 1973 thereafter, he visited the suit schedule property once in 2 years.
31. Further has stated that, it is true that Hesaraghatta main road is widen towards both side. He has not produced any document to show that his mother is in possession of the suit schedule property from 1973 as per Ex.P-5. He has paid the tax from the date of purchase till today before the BBMP office. Tax paid receipts does not disclose the property number. It is false to suggest that his mother never paid any tax. Ex.P-7 is the tax receipts for the year 1986. It is false to suggest that he has created Ex.P-4 sketch for the purpose of this suit. It is true that his mother has deposed before this Court that Ex.P-5 was stolen. Thereafter, he has traced out Ex.P-5 while searching other documents. Micro Tech Institutions was belonging to his brother now it is not in existence which was situated at Subedarapalya, his brother Dorairaju 33 O.S.NO.1274/2003 obtained the land from the Bank of India in favour of Micro Tech Company. He do not know his mother was stand as a security to the said loan. Now he has seen the notice issued by the bank dated 22.12.2004 which is marked at Ex.D-1. Ex.P-5 was pledged in the said bank by his mother Kamalamma. It is false to suggest that he has deposed that Ex.P-5 was stolen during the life time of his mother. It is false to suggest that Bank of India has took the possession of the suit schedule B property. On 22.02.2004, hence, they have no right over it.
32. Further it is false to suggest that there was a partition took place between the 1st defendant and his family members on 24.08.1988 in respect of the Sy.No.15 of Seededahalli village. As per the said partition deed, the 1st defendant was allotted East - West 185 feet and North - South 35 feet plot, out of the said plot the 1st defendant has constructed factory shed to the extent of East - West 110 feet and North - South 20 feet in the year 1991 and in front of the said shed, he was constructed 20 x 15 feet for shopping shed, witness voluntarily stated that the said property is belonging to him. He do not know the 1st defendant has obtained construction permission for the said shed and shop from Chikkabanavara Village Panchayath on 34 O.S.NO.1274/2003 27.09.1990. he do not know the khatha of factory shed and shop stands in the name of 1st defendant's father and after 24.08.1988 same was transferred in the name of the 1st defendant. It is false to suggest that the 1st defendant has paid the tax till today in respect of the said factory shed and shop. Witness voluntarily stated that he has paid the tax in the Corporation in 1973 to 1986. Tax paid receipts are marked at Ex.P-6 to Ex.P-11. It is false to suggest that he has created Ex.P-7 to Ex.P-11.
33. Further it is false to suggest that his mother was in possession of the suit schedule property from 18.04.1973 to 2002. He has not produced any document to show that is mother suffered mental ailment, it is false to suggest that he has falsely stated in his chief affidavit that on 25.03.2012 his mother went to the suit schedule property and found illegal construction constructed by the defendant No.1. It is false to suggest that the defendant No.1 is the owner of suit schedule 'A' property and he was constructed the house in the year 1991. It is false to suggest that though defendant No.1 was constructed the house in the year 1991 inspite of that his mother has created false cause of action saying that the 1st defendant has constructed the house on 25.03.2002. He do not know the exact value of 35 O.S.NO.1274/2003 the suit schedule property at the time of filing the suit, and it may more than Rs.10 Lakhs. He do not know value of the suit schedule property as on the date of the suit for a sum of Rs.2,500/- to Rs.3,000/- per sq. feet.
34. Further has stated that, it is false to suggest that the suit schedule property is not in existence in Ex.P-4 and he has created for the purpose of this suit. It is false to suggest that he has filed the case against the defendant though suit schedule 'A' property is belonging to the defendant No.1. It is false to suggest that his brother was unable to pay the loan towards the bank, therefore, the bank took the possession of the property as his mother mortgaged the suit schedule property. It is false to suggest that as on the date of the filing of the suit, his mother was not the absolute owner of the suit schedule property. It is false to suggest that his mother was not in possession of the suit schedule property as on the date of purchase by his mother from 1973. He has not seen the 2nd defendant Rudresh and his wife Kamala his mother may seen. He do not know the 2nd defendant Rudresh and his wife have constructed the house to the extent of 45 x 19 feet in the suit schedule property in the year 1987 and resides therein. He do not know whatever the transaction took place 36 O.S.NO.1274/2003 between them and his mother he do not his mother was visited the suit schedule property in the first week of August 1990.
35. Further has stated that, it is false to suggest that on that day his mother came to know who are Narasimhaswamy and Narayanaswamy and Narayanachar. He do not know when his mother was visited the suit schedule property at that time Panchayath was took place in the presence of Narayanachar and Narayanaswamy. It is false to suggest that they come to conclusion that already the 2nd defendant has constructed the house. Hence, it is not possible to vacate and handed over the possession to his mother. It is false to suggest that his mother was admitted to accept Rs.22,500/- for the consideration amount regarding the construction of house by the defendant. It is false to suggest that his mother received Rs.22,500/- on 16.081990 from the wife of 2nd defendant Kamala.
36. Further has stated that his mother put signature in Tamil language. He can identify the signature of his mother. It is false to suggest that the signatures on the General power of attorney dated 16.08.1990 and affidavit 37 O.S.NO.1274/2003 which belongs to Kamalamma. Now he has seen original plaint and identified his mother's signature on it. It is true that during the life time of his mother she examined as P.W.1, she has filed sworn affidavit as P.W.1 and he has identified his mother's signature on the said affidavit. It is false to suggest that on 16.08.1990 his mother executed General power of attorney and affidavit in favour of the 2nd defendant's wife. It is false to suggest that the construction of the house by the defendant No.2 is mentioned in General power of attorney and agreement. It is false to suggest that his mother came to know she was lost the possession over the suit schedule property in the year 1987. It is false to suggest that the 2nd defendant and his wife have constructed the house in the suit schedule property and they are absolute owner and possession of the same. Thereby there is no question of alleged illegal interference.
37. During the cross examination of D.W.1 has stated that Sampangi Ramaiah is his paternal grand father who had four children i.e., his mother, his uncle, Seetharamaiah his aunt's Kanthamma and Kumudavathi, Sampangi Ramaiah purchased about 10 acres of land in Sy.No.15 Seededahalli village, he has no impediment to produce the sale deed of his grand father, Sampangi Ramaiah died in the year 1977.
38 O.S.NO.1274/2003He do not Sampangiramaiah had sold site measuring 30 x 45 feet in favour of Kamalamma in the year 1973 through the registered sale deed, witness voluntarily stated that his Sampangiramaiah sold several sites, therefore, he cannot say exactly to whom his grand father sold the sites. He has produced the family settlement deed executed between his grand mother, father, uncle and aunts, it is false that he has not produced the said documents. On perusal of the documents produced by D.W.1 i.e., Ex.D-1 to Ex.D-34 the said document it is not find the family settlement deed. Further has stated that he has produced the document to show that which property have fallen to his share. Since D.W.1 has not produced the said family settlement deed executed between his grand mother, father uncle and aunt. In the absence of such material documents it cannot be say that as per the family settlement deed the properties fallen to his share.
38. Further has stated that in the family settlement deed his father and sisters have relinquished their rights in his favour in the year 1988, as the said family settlement held in the year 1988, he has got site measuring East - West 185 feet and North - South 35 feet. In order to prove the same D.W.1 has not produced the said partition deed.
39 O.S.NO.1274/2003Further has stated the property measuring East - West 185 feet and North - South 35 feet bears the survey number, as it is an agricultural land and it has not been assigned with any site number. In the sale deed executed by his grand father Sampangiramaiah the properties are not shown with numbers and they are sold only with measurements and boundaries.
39. It is true that he has not produced the tax demand register extract and tax paid receipts from 1988 till 2000 in respect of the property fallen to his share, witness voluntarily stated that he was working out of Bengaluru his father used to pay the tax in his name. It may be true that his grand father Sampangiramaiah had sold the suit property through registered sale deed dated 30.03.1973 as per Ex.P-5. It may be true that by virtue of the sale deed dated 30.03.1973 Ex.P-6 and Ex.P-18 have been recorded in the name of Kamalamma. He do not have knowledge about the payment of taxes by Kamalamma to the Panchayath in respect of the property purchased by her. The boundaries mentioned in Ex.P-5 may be true as on 30.03.1973. The property mentioned in Ex.P-5 is bounded on the East by Hesaraghatta road, West and North by remaining property of his grandfather and South by site of 40 O.S.NO.1274/2003 Bhagawansigh. Further has stated that the property allotted under partition held in the year 1988 in favour of his father and the property allotted to him are one and the same, his grand mother allotted him a site measuring 185 x 35 feet under the partition deed dated 1988. The said site was exclusively allotted to him and his father has no share in it. His father has not get any share under the partition deed dated 1988.
40. During the cross examination of this witness it was recorded in the question and answer :
Q. On what basis you are stating that Ex.D-2 and Ex.D-3 are pertaining to Sy.No.15?
A. All our properties are situated in Sy.No.15 only. Therefore, saying that Ex.D-2 and Ex.D-3 are pertaining to Sy.No.15.
It is true that in Ex.D-2 and Ex.D-3 the property number is shown as 15 therefore he is saying that the properties are carved out in Sy.No.15 of Seededahalli village. It is true that Ex.D-6 and Ex.D-7 number 15 is mentioned and further it is that in Ex.D-1 property No.15 is not mentioned, but it is mentioned as property No.863/2. It is false that in Ex.D-8 the service certificate issued by KEB the Sy.No.15 is not mentioned. Witness voluntarily 41 O.S.NO.1274/2003 stated that in the year 1991 the KEB has issued service certificate in respect of property carved out of Sy.No.15. It is true that in the year 1991 there was an industrial shed in property No.156/15. Witness voluntarily states that it is not an industrial shed it is a sheet roofed small shed and in the said shed, he was running the business of barcode printing garment products and eco-friends paper products. It is true that the area measuring 185 x 35 feet is in his possession in which he was running the said business. It is true that his father was not running any industry. However, he got electricity connection in his name in the year 1991.
41. Further has stated that, it is true that in Ex.D-1 the property is shown as vacant site. Witness voluntarily stated that due to mistake it is written as vacant site and for the first time, he is seeing the said mistake. It is false to suggest that prior to institution of the suit, he and the 2nd defendant have encroached upon the schedule 'A' and 'B' properties measuring 10 x 45 feet and 20 x 45 feet which belongs only to the plaintiff. It is false to suggest that, since the plaintiffs are residing far away from the suit property encroached upon the schedule 'A' and 'B' properties. It is false to suggest that they are liable to 42 O.S.NO.1274/2003 demolish the standing structure over the 'A' and 'B' schedule properties and hand over the vacant possession of the same in favour of plaintiff.
42. During the cross examination of D.W.2 that he can say his date of birth, he has purchased the suit property at the distance of 3 furlong from the suit property, there is no property belongs to him adjoining to the suit property. The extent of his property East - West is 75 feet and North - South 140 feet. The deceased plaintiff Kamalamma executed sale deed in 1990 with regard to the extent his favour. He do not have any impediment to produce the said sale deed to the Court. He has purchased the suit property from deceased Kamalamma in 1990. Kamalamma has executed the sale deed in his favour and has produced the same before the Court. He do not remember the property number that was purchased adjoining to the suit property. The adjoining property originally belonged to one Sampangiramaiah. He do not know from Kamalamma had purchased the property. He do not remember as when he constructed the house in the property purchased by Govindsingh.
43 O.S.NO.1274/200343. Further has stated that he has constructed the shop in the suit property 35 years ago, at the time of the construction of the shop, it was in the limits of the Panchayath. He had taken the license for construction of the shop. He cannot identify the license if the documents are shown to him. It is false to suggest that Kamalamma has not executed the documents which are produced by him. It is false to suggest that the suit schedule property was vacant prior to 2003. Witness states that he do not have the capacity to remember the status of the property, it is false to suggest that on account of encroachment only, the plaintiff has filed the above suit, it is false to suggest that he has fabricated the documents which are produced in this case, it is false to suggest that prior to the filing of the suit, Kamalamma used to visit the suit property frequently. It is false to suggest that in order to knock the property of Kamalamma he has filed the suit by fabricating the documents and deposing falsely.
44. During the cross examination of D.W.3 stated that his age is about 52 years. He came to Bengaluru in 1979, he is the native of Kerala, he was working in Santhosh Bakery at Dasarahalli. He do not know exactly the contents of the affidavit filed for chief examination. The clinic of 2nd 44 O.S.NO.1274/2003 defendant was situated on the main road of Dasarahalli. The wife of 2nd defendant is one Kamala, he cannot say the extent of the property hold by Kamala wife of 2nd defendant. He started his bakery shop in their building in 1991. At that time he did not know the extent of that shop, he was paying rent at that time Rs.250/- per month, he had not taken any license from the Corporation to start the bakery shop, rent agreement was executed after 5 years from the commencement of the bakery shop, he has not produced that agreement before the Court. He do not know if the address Seedadahalli does not appear in Ex.D-38, Ex.D-39 and Ex.D-41. He used to visit the clinic of 2nd defendant, it is false that therefore, the 2nd defendant had requested him to depose in the above case. It is false to suggest that he is deposing falsely in order to support the case of the 2nd defendant, he do not know if 2nd defendant had constructed the shop on obtaining the license.
45. During the cross examination of D.W.4 states that now he is aged 56 years. He has started the provision store at Hesaraghatta main road, Bonmill Bus stop, which was started on 14.01.1995 on rent from defendant No.2, there was rent agreement executed by defendant No.2 in his favour he has produced the copy of the same to his 45 O.S.NO.1274/2003 lawyer, the postal address of Gayathri Complex does not appear in Ex.D-37 and Ex.D-42, it is false that he was not running shop has stated by him on rent at the premises of defendant No.2, he has not produced shop license before the Court, it is false that he is deposing falsely in order to help defendant No.2, he do not know when the building was constructed by defendant No.2, he do not know the contents of affidavit filed for chief examination now shown to him.
46. It is pertinent to note that deceased Kamalamma filed this suit for the relief of declaration and possession on the ground that she was purchased the suit schedule property through registered sale deed dated 30.03.1973 one Sampangiramaiah of Bagagunte, after the purchase the same revenue records stands in her name, and she has paid upto date tax to the Village Panchayath, Bagalgunte and also she was in possession of the suit schedule property. In order to prove this she has filed her sworn affidavit in lieu of chief examination as P.W.1 and got marked Ex.P-1 to Ex.P-4 i.e., Ex.P-1 is the certified copy of the sale deed dated 30.03.1973, Ex.P-2 is the encumbrance certificate, Ex.P-3 is also encumbrance certificate and Ex.P- 4 is land sketch. In the meanwhile, P.W.1 Kamalamma 46 O.S.NO.1274/2003 died, her LRs have been brought on record, thereafter, her son LRs of plaintiff No.1 by Manimohan has filed sworn affidavit in lieu of chief examination as P.W.2 while marking the document my predecessor in office has again marked exhibits through P.W.2 as Ex.P-1 is the certified copy of the sale deed dated 30.03.1973, Ex.P-2 is the SPA, Ex.P-3 and Ex.P-4 were not marked through P.W.2 and again further sworn affidavit as P.W.2 and directly marked Ex.P-5 which is the sale deed dated 30.03.1973. Ex.P-6 is the copy of index of land, Ex.P-7 to Ex.P-11 are the tax paid receipts, Ex.P-12 to Ex.P-17 are the encumbrance certificates, Ex.P- 18 is record of rights. As per the deposition Ex.P-19 is marked, but actually Ex.P-19 is jumped by marking the document, Ex.P-20 and Ex.P-21 are marked as per order sheet, but actually Ex.P-21 is not marked by my predecessor. The learned counsel for the plaintiff and defendant filed joint memo stating that the said exhibits were marked twice and hence, the same will be read as it is by referring the date of documents and it is exhibited number. Hence, for the sake of convenience taking into consideration of the joint memo exhibits are referred including the date of documents and its exhibits number. On perusal of Ex.P-1 and Ex.P-5 both are same documents 47 O.S.NO.1274/2003 one is certified copy of the sale deed dated 30.03.1973 and another one and same.
47. On perusal of Ex.P-5 which is the original sale deed executed on 30.03.1973 executed by Sampangiramaiah in favour of the plaintiff Kamalamma in respect of site measuring 45 x 30 feet in Sy.No.15 bounded towards East by Hesaraghatta Bengaluru road, West by remaining land of Sampangiramaiah, North by remaining land of Sampangiramaiah and South by site to Bhagawan Singh. Ex.P-6 is the index of land standing in the name of Kamalamma to the extent of 45 30 feet out of Sy.No.15 of Seededahalli village for the year 1985-86. She has paid tax as per Ex.P-7 dated 26.12.1986 and Ex.P-8 is the acknowledgment for receipt of amount by Kamalamma in respect of the said property dated 27.09.2010, Ex.P-9 is the property tax assessment standing in the name of Kamalamma in respect of the suit schedule property dated 28.09.2010, Ex.P-10 also receipt issued by BBMP by Kamalamma. Ex.P-11 is the property tax dated 28.09.2010 standing in the name of Kamalamma in respect of the suit property. Ex.P-12 to Ex.P-17 are the encumbrance certificates, Ex.P-18 is the record of rights standing in the name of Kamalamma by deleting the name of 48 O.S.NO.1274/2003 Sampangiramaiah for the said site. Ex.P-19 and Ex.P-20 are the receipts and property tax receipt in respect of the suit schedule property which stands in the name of Kamalamma. All these documents have crystal clear that the deceased plaintiff Kamalamma was purchased the suit schedule property from Sampangiramaiah to the registered sale deed dated 30.03.1973.
48. D.W.1 has stated in his written statement that he is the absolute owner of the suit schedule property and he has constructed the building and no question arise for alleged encroachment as alleged by the plaintiff. D.W.2 stated in his written statement that the plaintiff was the owner of the suit schedule property, no doubt she has purchased the registered sale deed dated 30.03.1973, and his wife has already constructed the building on the half of the suit property measuring 45 x 19 feet with the knowledge of the plaintiff in the year 1987, since then he has been in occupation of the same. Further has stated that fortnight prior to 16.08.1990, the plaintiff came to the suit property and notice the construction already existed on half of the site purchased by her in 1973 i.e., the construction put up by the wife of the 2nd defendant Kamala, Thereafter, the plaintiff went away and after 3 days again she came to the 49 O.S.NO.1274/2003 suit property along with Narasimhaiah and Narayanaswamy and some others and requested the wife of 2nd defendant to give some compensation. Accordingly, Panchayath was held and compensation was fixed for a sum of Rs.22,500/- and 2nd defendant pay the same to her and settle the claim and plaintiff accepted to receive the said amount as compensation. After receiving the said amount Kamalamma was executed a power of attorney and also affidavit confirming the fact of her receiving the said amount of Rs.22,500/- and executed the document in favour of the wife of 2nd defendant. Hence, the plaintiff cannot contend before this Court that the 2nd defendant encroached upon the suit property and got constructed a building in the suit property. In order to prove these facts, the defendant No.2 has not produced any documents regarding conveyed the Panchayath, and also not examined panchayathdars in support of his case.
49. During the cross examination of D.W.1, he has stated that Sampangiramaiah had sold site measuring 30 x 45 feet in favour of Kamalamma in the year 1973 through registered sale deed. Further has stated that Samapangi Ramaiah sold several sites, therefore, he cannot say exactly to whom he was sold the sites and D.W.1 has not produced 50 O.S.NO.1274/2003 family settlement deed executed between his grand mother, father, uncle and aunts. In the absence of such material documents it cannot be said that as per the family settlement deed properties fallen to his share.
50. Further has stated that it may be true that by virtue of the sale deed dated 30.03.1973 and Ex.P-6 and Ex.P-18 are stands in the name of Kamalamma, he do not have knowledge about the payment of tax by Kamalamma to the Panchayath in respect of the property purchased by her. The boundaries mentioned in Ex.P-5 may be true as on 30.03.1973. On the basis of the above admission made by D.W.1 it clearly goes to show that Kamalamma was purchased the suit schedule property through the registered sale deed from Sampangiramaiah on 30.03.1973 and from the date of purchase the revenue records stands in the name of Kamalamma she was put in possession of the suit schedule property as on the date of sale.
51. During the cross examination of D.W.2, he has stated that he has purchased the suit property at the distance from 3 furlong from the suit property. There is no property belongs to him adjoining to the suit property. The deceased Kamalamma executed sale deed in 1990 with 51 O.S.NO.1274/2003 regard to the extent in his favour. Further has stated that he has purchased the suit schedule property from deceased Kamalamma in 1990 and he do not remember property number that was purchased adjoining to the suit property. The adjoining property originally belong to one Sampangi Ramaiah, he do not know from Kamalamma had purchased the suit property. P.W.2 is claiming the suit schedule property as he is the absolute owner of the suit schedule property as the same was purchased by him through Kamalamma in the year 1990. In order to prove this fact defendant No.2 has not produced the valid sale deed of 1990 in order to establish that he was purchased the suit schedule property from Kamalamma in the year 1990.
52. In the written statement of defendant No.2 he has stated that no doubt, the suit schedule property was purchased by Kamalamma through Sampangiramaiah on 30.03.1973, however, he has constructed the house in the half portion of the suit schedule property, and in the elders of the locality and both the parties the matter was settled before Panchayath and in the Panchayath Kamalamma has received Rs.22,500/- and executed the General power of attorney in favour of his mother Kamalamma and also executed affidavit and relinquished her right over the 52 O.S.NO.1274/2003 schedule property in favour of Kamala. In the cross examination of D.W.2 has stated that he has purchased the suit schedule property from Kamalamma in the year 1990 through registered sale deed.
53. The defendant No.2 has stated in one stretch that he is the absolute owner of the suit schedule property by way of sale deed in the year 1990 and in another stretch he has stated that Kamalamma had relinquished her right by receiving the compensation of Rs.22,500/- in presence of panchas and relinquished her right by executing the General power of attorney and affidavit in favour of his wife. Therefore, the defense taken by the defendant No.2 is not believable and acceptable as he has taken different defense in his written statement as well as cross examination. However, defendant No.2 has not at all proved that he was purchased the suit schedule property from Kamalamma in the year 1990 through registered sale deed, or has not proved Kamalamma had relinquishing the right by executing the General power of attorney and affidavit in favour of his wife.
54. As per the provisions of Transfer of Property Act, the transfer of immovable property must be transferred through 53 O.S.NO.1274/2003 the registered documents, and mere General power of attorney, affidavit and vardi are not relevant documents to establish the valid alienation of title.
55. Moreover, since the defendant No.2 had changed his ownership of the suit schedule property on the basis of the sale deed dated 1990 executed by deceased Kamalamma in his favour, and has claiming the suit schedule property by virtue of Ex.D-35 and Ex.D-36 in favour of his wife i.e., defendant No.3, and also claiming the ownership of suit schedule 'A' and 'B' property by way of adverse possession, as his wife is in possession of the suit schedule property more than 12 years with the knowledge of the plaintiff. On careful consideration of the above defense of the defendant, it clearly goes to show that the defendant has failed to establish that they are the absolute owner and possession of suit schedule 'A' and 'B' property and in the absence of such material documents the possession of defendants over the suit schedule property is illegal possession. On the basis of Ex.D-35 and Ex.D-36 also the defendants are not entitled to claim the absolute ownership over the suit schedule property, without alienate the immovable property through registered documents.
54 O.S.NO.1274/2003In this stage, this Court has placed the ruling reported in ILR 2006 Karnataka 3018, in Avvamma - Vs - State Government by its Secretary and others, wherein it has been held that :
"(B) CIVIL LAW - LAND REFERENCE MATTER 'Vardi' - Whether on the basis of a vardi can a legal transfer of the right, title and interest in the immovable property beyond all reasonable doubt effected - can vardi per ses constitute a valid and legal transfer of immovable property
- Held - so called vardi is not in the form of a registered document evidencing transfer of immovable property. Nature of the vardi as to whether it was oral or in writing if so the identity of the persons who gave the report, or material particulars not forthcoming.
Transfer of immovable property it is trite to beyond all reasonable doubt legal, must beyond all reasonable doubt in accordance with the Transfer of Property Act, 1982, therefore, in the absence of registered document of transfer of immovable property vardi per ses constitute a valid and legal transfer of immovable property."
55 O.S.NO.1274/2003I have carefully gone through the supra decision, in this case also the defendant No.2 has not produced either the sale deed dated 1990 in order to prove that he is the absolute owner of the suit schedule property, and he has produced the General power of attorney and affidavit in favour of his wife does not create any right of valid transfer of immovable property. Moreover, the defendant No.2 has claiming the ownership of the suit schedule property by way of sale deed in the year 1990, again has claiming that his wife is the absolute owner of the property by way of General power of attorney and affidavit as per Ex.D-35 and Ex.D-36. Once the defendant has claiming that he is the owner of the suit schedule property, then burden lies on him to prove it. In the absence of valid document regarding the alienation of the immovable property. On the basis of the above admission of D.W.1 and D.W.2 it clearly goes to show that the defendants are illegally encroached the suit schedule 'A' and 'B' property and constructed structure over it illegally. Therefore, in view of the detailed discussion and in the light of the principles involved in the supra decision, I am of the opinion, the plaintiffs prove that they are the absolute owner of the suit schedule property and the defendants have encroached the schedule 'A' and 'B' property and constructed the structure over it illegally, 56 O.S.NO.1274/2003 on the other hand, the defendants have failed to prove that they are the absolute owner of the suit schedule property. Hence, issue No.1 and 2 are answered in the AFFIRMATIVE and issue No.3 is answered in the NEGATIVE.
56. ISSUE No.4 : So far as this issue is concerned, the plaintiff has paid additional Court as per the office note dated 04.12.2008 and the plaintiff has paid deficient Court fee of Rs.11,437/-. Therefore, the Court fee paid by the plaintiff is proper and sufficient, hence, I answer issue No.4 accordingly.
57. ISSUE No.5 : The defendant No.2 has taken contention that his wife has put up construction on the property in the year 1987 and the same was very much within the knowledge of the plaintiff, though the plaintiff was aware of the said fact, she did not prefer to take any legal action to recover the possession of the suit property within the stipulated period of 12 years from the date of possession adverse to her title, thereby the plaintiff has lost whatever right she had over the suit property. In other words, the title of the plaintiff has extinguished for ever and this defendant perfected this title to the property by virtue of adverse possession and hence the right to seek 57 O.S.NO.1274/2003 permission over the suit property never existed in favour of the plaintiff as on the date of filing of the suit, this suit is one filed by the plaintiff is hit by Section 27 and Article 65 of the Limitation Act. On perusal of the entire material, pleadings, documents since the defendant No.2 has claiming the adverse possession of the suit schedule property as his wife is in possession of the suit schedule property within the knowledge of more than 12 years.
58. It is well settled proposition of law that a owner cannot claim the adverse possession over the suit schedule property or a person cannot claim the independent ownership and adverse possession in respect of the suit schedule properties. In this case, the defendant No.3 has claiming the ownership of the suit schedule property by virtue of Ex.D-35 and Ex.D-36. Moreover, she has not entered into witness box and proved the case. Unless and until the parties have not proved adverse possession, the possession more than 12 years is not applicable. Therefore, the suit is well within the time of the limitation. Hence, issue No.5 is answered accordingly.
59. ISSUE No.6 : Since the plaintiff has proved issue No.1 and 2 and the defendants have failed to prove issue 58 O.S.NO.1274/2003 No.3, therefore, the plaintiff is entitled for the relief of declaration and possession and Mandatory Injunction in respect of the suit schedule property. Hence, issue No.6 is answered in the AFFIRMATIVE.
60. ISSUE No.7 : In the result, I proceed to pass the following :
ORDER The suit of the plaintiff is hereby decreed with costs.
Further it is decreed that the plaintiffs are the absolute owner of the suit schedule property and the defendants are hereby directed to hand over the vacant possession of the suit schedule property to the plaintiff.
Draw the decree accordingly.
[Dictated to the Judgment Writer, the transcript thereof is corrected and then pronounced by me in Open Court, this the 2nd day of December, 2017) (G.A.MULIMANI) XIV Addl. City Civil Judge Bangalore.
---59 O.S.NO.1274/2003
ANNEXURE List of witnesses examined on behalf of plaintiff :
P.W.1 Kamalamma P.W.2 Manimohan
List of documents exhibited on behalf of plaintiff through P.W.1 Kamalamma on 01.09.2006 :
Ex.P.1 Certified copy of sale deed dated 30.03.1973 Ex.P.2 Encumbrance certificate Ex.P.3 Encumbrance certificate Ex.P.4 Land sketch Documents marked through P.W.2 Manimohan on 28.09.2011 :
Ex.P.5 Original sale deed dated 30.03.1973 Ex.P.5(a) Typed copy of Ex.P-5 Ex.P.6 Copy of index of land Ex.P.7 to Ex.P.11 Tax paid receipts Ex.P.12 to Ex.P.17 Encumbrance certificates Ex.P.18 Record of rights Ex.P.20 & Ex.P.21 Kandayam receipts Note : Both counsels filed joint memo dated 14.11.2017 stated that Ex.P-19 is not marked as per deposition, but documents disclose that 60 O.S.NO.1274/2003 Ex.P-19 is marked. Ex.P-21 is not marked as per the deposition and Ex.P-21 is not marked in the document, hence, it is read as Ex.P-19 and Ex.P-20 and not Ex.P-19 and Ex.P-21. Hence, the same are read as referred.
List of witnesses examined on behalf of defendant :
D.W.1 Shantharamu D.W.2 Rudresh D.W.3 Pavithran P.Nanu D.W.4 Peer Mohammed
List of documents exhibited on behalf of defendant :
Ex.D.1 to Ex.D.3 House and land tax assessment register extracts Ex.D.4 to Ex.D.7 Tax paid receipts Ex.D.8 Service certificate Ex.D.9 Tax paid receipt Ex.D.10 Electricity bill Ex.D.11 Receipt Ex.D.12 to Ex.D.24 Tax paid receipts Ex.D.25 & Ex.D.26 Trade license Ex.D.27 Letter to Executive Engineer Ex.D.28 & 61 O.S.NO.1274/2003 Ex.D.29 Electricity bill and receipt Ex.D.30 to Ex.D.34 Photographs, CD and cash bill Ex.D.35 General power of attorney dated 16.06.1990 Ex.D.36 Affidavit Ex.D.37 Oriental Insurance policy dated 04.09.1998 to 03.09.1999 Ex.D.38 LIC policy dated 31.08.2000 Ex.D.39 Membership card Ex.D.40 Postal cover Ex.D.41 Insurance policy dated 12.09.2000 Ex.D.42 Cash bill dated 11.06.1991 XIV Addl. City Civil Judge Bangalore.
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