Karnataka High Court
Sri Narasimha Murthy vs Smt Shyamala on 27 October, 2025
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2025:KHC:42785
RFA No. 64 of 2018
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR FIRST APPEAL NO.64 OF 2018 (PAR/INJ)
BETWEEN:
SRI NARASIMHA MURTHY,
S/O NARASIMHAPPA,
AGED ABOUT 47 YEARS,
R/AT NO.30, 5TH MAIN ROAD,
HOSAPALYA MAIN ROAD,
BENGALURU - 560 068.
...APPELLANT
(BY SRI. H.KANTHRAJA, SR.COUNSEL FOR
SRI. ANNAIAH C V, ADVOCATE)
AND:
SMT. SHYAMALA,
Digitally D/O R. SAMPANGI,
signed by
PAVITHRA B AGED ABOUT 36 YEARS
Location: NO.306, III MAIN ROAD,
HIGH HOSAPALYA MAIN ROAD,
COURT OF BOMMANAHALLI POST,
KARNATAKA
BENGALURU - 560 058.
...RESPONDENT
(BY SRI. GANAPATI BHAT VAJRALLI, ADVOCATE)
THIS RFA FILED UNDER SEC.96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 04.12.2017 PASSED IN OS
NO.576/2012 ON THE FILE OF THE XII ADDL. CITY CIVIL AND
SESSIONS JUDGE [CCH.NO.27] AT BENGALURU DECREEING
THE SUIT FOR PERMANENT INJUNCTION.
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NC: 2025:KHC:42785
RFA No. 64 of 2018
HC-KAR
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
ORAL JUDGMENT
The appeal is filed by the defendant questioning the judgment and decree dated 04.12.2017 passed by the XII Addl. City Civil and Sessions Judge (CCH No.27), Bengaluru, in O.S.No.576/2012, thereby, the suit filed for declaration and permanent injunction is decreed.
2. The rank of parties are referred to as per their rankings before the trial court.
3. The case of plaintiff in brief as per plaint averments are that;
3.1 The plaintiff has purchased the suit schedule property site No.32 morefully described in the schedule through registered sale deed dated 26.12.2011. It is stated that one Kakappa and his sons being the members of joint family were owners and in possession of the land bearing Sy.No.111 measuring 2 acres 28 guntas situated -3- NC: 2025:KHC:42785 RFA No. 64 of 2018 HC-KAR at Hongasandra Village, Begur Hobli, Bengaluru South Taluk, had acquired the said property in the name of Kakappa under registered sale deed dated 30.07.1956 and thereafter, the said joint family have formed layout and sold two such sites namely, Site Nos.32 and 47 each measuring into 40x30 feet through Kakappa in favour of one Doreraju under GPA and affidavit both dated 05.12.1985 and delivered the possession in favour of Doreraju and upon demise of Kakappa, the BBMP effected revenue records in favour of son Shamanna by selling property bearing No.111/32 for the site No.32. Said Kakappa sons as well as purchaser of Doreraju have sold the site No.32 measuring 30x40 feet in favour of plaintiff for the sale consideration under sale deed dated 26.12.2011 and thereafter, the plaintiff is in possession over the said suit schedule site. It is pleaded that necessary revenue records have been mutated in the name of plaintiff.
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NC: 2025:KHC:42785 RFA No. 64 of 2018 HC-KAR 3.2 It is further pleaded that the defendant having no manner of any right, title, interest, possession, etc., over the schedule property on 12.01.2012 along with his other fellow men has made an attempt of interference and trying to trespass with the possession of plaintiff. Therefore, the plaintiff was constrained to file a complaint before the police, but the police have not interfered and directed to approach the Civil Court. Therefore, the plaintiff was constrained to file the suit.
3.3 It is further pleaded that the defendant in order to snatch away the site No.32, which is schedule property, has got registered the sale deed dated 20.07.2011 through Muniyappa the alleged GPA holder of Kakappa falsely describing the number of site as '31' measuring East to West 30 feet and North to South 40 feet. Therefore, the plaintiff has filed the suit for declaration of the sale deed dated 20.07.2011 and permanent injunction. -5-
NC: 2025:KHC:42785 RFA No. 64 of 2018 HC-KAR
4. The defendant appeared through an Advocate and filed the written statement and pleaded that the plaintiff has stated false address in the cause title of the suit so as to say that the notice shall not reach the defendant. That the defendant denied all the averments in the plaint and it is denied that the Kakappa and his sons were having joint family status and sold the suit schedule property to Doreraju and thereafter to the plaintiff. It is also denied that the plaintiff had become owner of the suit schedule site through registered sale deed dated 20.07.2011. It is denied that the defendant had trespassed and is interfering with the possession of the plaintiff as false one. Also denied the fact that on 12.01.2012 the defendant started interfering in the suit site No.32 and further stated that the plaintiff has lodged a false complaint to the police.
4.1 It is the case made out by the defendant that Kakappa was the owner of the property and he had purchased the property under the registered sale deed -6- NC: 2025:KHC:42785 RFA No. 64 of 2018 HC-KAR dated 30.07.1956 and has formed layout and alienated the entire property to the extent of 2 acres 28 guntas to the various persons during his lifetime of Kakappa and there is no land remains to the said Kakappa so as to alienate the same by his legal heirs. The defendant herein had purchased the properties Item No.30 under the registered sale deed dated 25.11.2005, which was purchased by the defendant's vendor namely, M.Janardhan Rao and thereafter constructed three floor RCC building in the said property and also he had taken the electric connections and water connections from the concerned Authorities and accordingly, the defendant is in possession over the site No.30 and the defendant is regularly paying taxes and other revenue to the concerned authorities.
4.2 The defendant also pleaded that he has purchased site No.31 formed in same Sy.No.111, 'B' Khatha, Sl.No.670, property No.111-31 situated at Hosapalya Village, Hongasandra Dakale, Begur Hobli, Bengaluru South Taluk, under the registered sale deed -7- NC: 2025:KHC:42785 RFA No. 64 of 2018 HC-KAR dated 20.07.2011 and the defendant had put compound wall around the suit schedule property in respect of the site No.31 and fixed the gate and has put up car shed in site No.31 and parked the vehicle in the said site and khatha and other revenue records are standing in the name of defendant. Therefore, the defendant is in possession and enjoyment of site Nos.30 and 31 as absolute owner and is regularly paying all necessary taxes and revenues to the concerned authorities.
4.3 When this being the fact, the plaintiff without having any right, title, interest, has started interfering with the possession of the defendant over the site Nos.30 and 31, but the identity of Site No.32 is in dispute and as such trying to interfere with the possession over the site No.31. Therefore, on all these pleadings prays to dismiss the suit.
5. Upon pleadings the trial court has framed the following issues on 17.02.2012:
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NC: 2025:KHC:42785 RFA No. 64 of 2018 HC-KAR (1) Whether the plaintiff proves the possession of the suit schedule property as on the date of the suit?
(2) Whether the plaintiff proves the interference by the defendant?
(3) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for? (4) What Order, or Decree?
6. Again the trial court has framed the additional issues on 18.01.2016.
(1) Whether the plaintiff proves that the defendant has got the registered sale deed dated 20.07.2011 from Muniyamma, the alleged General Power of Attorney holder of Kakappa, falsely describing the number of suit property belonging to plaintiff as 31 old property No.111 of Hosapalya village?
(2) Whether the plaintiff proves that the registered sale deed dated 20.07.2011 is liable to be cancelled?
(3) Whether the suit of the plaintiff is maintainable in the present form?
(4) Whether the Court fee paid for reliefs claimed in the suit is sufficient?
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NC: 2025:KHC:42785 RFA No. 64 of 2018 HC-KAR (5) Whether the suit of the plaintiff is maintainable in the present form?
7. The plaintiff is examined as PW1 and got marked the documents as Exs.P1 to P-29. The defendant is examined as DW1 and got marked the documents as Exs.D-1 to D-24.
8. The trial court has decreed the suit on the reason that where the defendant relies on Ex.P-1 - GPA dated 10.01.1986 executed by Kakappa in favour of Muniyappa in respect of site No.31 and executed a sale deed on 20.07.2011 as per Ex.D-10, but by that time said Kakappa died on 15.10.2001. Therefore, as per Section 54 of the Transfer of Property Act, 1882, when the executor of GPA died on 15.10.2001, the agency is cancelled upon the death of Kakappa. Therefore, the GPA has become inoperative but by virtue of the said GPA whatever future transactions are made, are all null and void. Therefore, the defendant cannot become owner of the site No.31 as per Sections 7 and 8 of the Transfer of
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NC: 2025:KHC:42785 RFA No. 64 of 2018 HC-KAR Property Act, 1882 and therefore, the trial court formed an opinion that the said sale deed dated 20.07.2011 has become illegal document and accordingly cancelled the said document. Thus, decreed the suit.
9. Being aggrieved by the judgment and decree passed by the trial court, the defendant has filed an appeal before this Court by raising various grounds and the learned Senior Counsel in consonance with the grounds raised has submitted that the there is no schedule in respect of site No.31 in the plaint, but made a prayer in the plaint for cancellation of the sale deed in respect of site No.31 is not maintainable.
10. Further submitted that the defendant is in possession over the site No.31 and same is admitted by the plaintiff in her evidence. Therefore, without seeking relief of possession, mere seeking of relief of declaration is not maintainable as per Section 34 of the Specific Relief Act, 1963. Further submitted that the site No.31 originally
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NC: 2025:KHC:42785 RFA No. 64 of 2018 HC-KAR was having dimension of 60x40 feet and therefore, the vendor of the defendant M.Janardhan Rao had divided the said site into two halves having dimensions of 30x40 feet by making 2 sites and the defendant had purchased northern side of the said site No.31, which is falling to the site No.32. This factor is not considered by the trial court. Further submitted that the plaintiff had purchased site No.32 is not correct and it may be at the most in a document, but actual purchaser is the defendant. Therefore, submitted that plaintiff is falsely contending as owner of site No.32 by showing the site No.31 purchased by the defendant. It is submitted that this comparison is not correctly assessed by the trial court.
11. Further submitted that the trial court has not answered the issues correctly. Also argued with reference to the sale deeds Exs.P-19, P-20 and P-21 and have executed Ex.D-1 - GPA and Ex.D-10 sale deed submitted that the defendant is a genuine and bonafide purchaser of the site No.30 from his vendor M. Janardhan Rao.
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NC: 2025:KHC:42785 RFA No. 64 of 2018 HC-KAR Therefore, it is sum and substance of the submission made by the counsel for the defendant/appellant is that the site No.31 was having dimension originally 60x40 feet and it was divided into two halves and the defendant has purchased the northern side of site No.31. Therefore, submitted this aspect is not considered by the trial court. Hence, prays to make interference with the judgment and decree passed by the trial court.
12. He places reliance on the judgments of Hon'ble Supreme Court and this Court, which are as follows:
1. AIR 1972 SC 2685 - RAM SARAN AND ANOTHER VS. SMT. GANGA DEVI.
2. R.S.A. NO 23/2021 - (DEC) - SOMAYYA BELCHADA VS. SANTOSH AND OTHERS.
3. 1990 (1) CCC PAGE 33 (DB) K.V. VENKATAREDDY VS. DODDANARAYANAPPA AND OTHERS.
13. On the other hand, learned counsel for the respondent/plaintiff submitted that during the course of the appeal, at the request of the learned counsel for the
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NC: 2025:KHC:42785 RFA No. 64 of 2018 HC-KAR appellant/defendant a Court Commissioner was appointed and the Court Commissioner has submitted a report with a sketch that all the sites formed in Sy.No.111 are having dimension of 30x40 feet only including the site Nos.30, 31 and 32. Therefore, there is no site No.31 having dimension of 60x40 feet, but the vendor of the defendant is falsely depicting the dimension of site No.31 as 40x60 feet and made two different sale deeds by dividing site as towards northern side and southern side and sold the property to the defendant, which is not correct. Also submitted that Kakappa had executed power of attorney in the year 1986 in favour of Muniyappa and Kakappa died on 15.10.2001, but thereafter the execution of sale deed dated 20.07.2011 is legally nonest as Muniyappa did not have authority to sell the site No.31 in favour of the defendant as the agency created by Kakappa stood extinguished soon after the death of Kakappa on 15.10.2001. Therefore, submitted that this factor is correctly appreciated by the trial court.
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NC: 2025:KHC:42785 RFA No. 64 of 2018 HC-KAR
14. Further submitted that the children of Kakappa executed the sale deed as per Ex.P-12 in favour of plaintiff, but the defendant is falsely asserting the site No.'32' as '31'. Further submitted that the defendant has not produced the sale deed of his vendor M.Janardhan Rao in what way the said vendor has acquired the property, whether he his acquired property site No.31 as having dimension 60x 40 feet or 30x40 feet. Therefore, the sale deed executed dated 20.07.2011 is fictitious and false one and it is rightly appreciated by the trial court. Hence, submitted there is no need to make interference with the judgment and decree and prays to dismiss the appeal.
15. Learned counsel for the respondent/plaintiff relies on the following judgments:
1. (2012) 1 SCC 656 - SURAJ LAMP AND INDUSTRIES PRIVATE LIMITED VS. STATE OF HARYANA AND ANOTHER.
2. 1966 SCC ONLINE SC 112: 1966 SUPP SCR 270: AIR 1967 SC 436 VEMAREDDI
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NC: 2025:KHC:42785 RFA No. 64 of 2018 HC-KAR RAMRAGHAVA REDDY AND OTHERS VS.
KONDURU SESHU REDDY AND OTHERS.
3. 1999 SCC ONLINE AP 250: AIR 2000 AP 29: (1999) 4 ALD 491: (1999) 2 AP LJ (1999) 4 ALT 118 - KASIREDDY RAMAYAMMA VS. KASIREDDY RAMA RAO.
16. Upon hearing the submissions made by the learned counsel for the parties and on perusal of documentary evidence, the following points would arise for consideration:
(1) Whether, under the facts and circumstances involved in the case, the plaintiff proves that the defendant has got registered false and fictitious sale deed dated 20.07.2011 from Muniyappa by describing the property as site No.31 and thus, the said sale deed is null and void?
(2) Whether, under the facts and circumstances involved in the case, the defendant proves that originally the site No.31 was having dimension of 60x40 feet and the vendor of the defendant namely, M.Janardhan Rao had equally divided the said site of dimension 60x40 feet into 2 equal parts as 30x40 and sold the property to
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NC: 2025:KHC:42785 RFA No. 64 of 2018 HC-KAR the defendant as site No.31 and thus the defendant has become the owner of the site No.31 as per registered sale deed dated 20.07.2011?
(3) Whether, under the facts and circumstances involved in the case, the judgment and decree passed by the trial court requires any interference?
17. The plaintiff is contending that she has purchased the suit schedule property site No.32 described in the schedule by virtue of sale deed dated 26.12.2011. It is not disputed by the plaintiff that the defendant has purchased site No.30. It is not disputed that all the sites including site Nos.30, 31 and 32 are formed in the land bearing Sy.No.111 of the Hosapalya Village, Hongasandra Dakale, Begur Hobli, Bangalore South Taluk, under the same layout. No doubt the layout plan is not approved by the competent authorities, but the plaintiff and defendant and others have purchased various sites from the same layout. Whether sale deed dated 20.07.2011 is fictitious one or not, is the question to be considered in the appeal
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NC: 2025:KHC:42785 RFA No. 64 of 2018 HC-KAR considering the oral and document any evidence placed by both the sides.
18. Originally Kakappa and his children were the owners of land bearing Sy.No.111 to the extent of 2 acres 28 guntas and formed layout and sold various sites in favour of others including the plaintiff and defendant. Ex.P-12 is the sale deed of the plaintiff having purchased through children of Kakappa by virtue of the registered sale deed dated 26.07.2011 and has become the owner of the site No.32, which is described in the schedule in the plaint.
19. During the pendency of the appeal at the request made by the learned counsel for the appellant a Court Commissioner was appointed and Court Commissioner submitted a report for which the appellant/defendant has no objection. The said Court Commissioner's report prove the fact that the site Nos.25 to 44 as in the layout plan are all having dimension of
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NC: 2025:KHC:42785 RFA No. 64 of 2018 HC-KAR 30x40 feet. The subject matter of sites involved in the present suit are site Nos.30, 31 and 32. It is the Court Commissioner's report that the site Nos.30, 31 and 32 are having dimensions of 30x40 feet. The Court Commissioner has submitted a report to the effect by mentioning the boundaries of sites Nos.30, 31 and 32.
" ರ ತ ಕ ಟಕ ಉಚ ಲಯದ ನಂ.
R.F.A. No. 64/2018 ಪ ಗಳ ಪ ! ವ#ಗ#$ %ೕ' ಕ(ೕಷ* ರವ+ ಸ - . +ವ ಕಂ/0 + ಉತ. ರಗ1.
1. Ex.P/D29 3ೕಔಟ! ನ05 ಯಂ6 ಸ.ನಂ.111/3 7ಂಗ/8+ವ ನ9ೕಶನ ನಂ. 25 =ಂದ 34 ರವ@Aನ 9ೕಶನಗಳB! CD 9ೕಶನ ನಂ.29 =ಂದ 34 ರ 9ೕಶನಗಳB! ಜ(ೕB 8G ಯಂ6 ಅಳ6ಗಳB! ಪ=Iೕ 8 ಖKತ ಪ/8%ಂL 9ೕಶನ ಸಂM Nಂ $ ನ05 ಯB! O+ 8P.
2. 9ೕಶನ ನಂ 30,31, ಮT. 32 B! ಪ=Iೕ ಸUA 9ೕಶನ ನಂ. 300V ಚWV ಬಂ EX̤.P/D29 ನ05 ಯಂ6 [ವ 0V : ರ].
ಪI ಮ0V : 9ೕಶನ ನಂ. 39
ಉತ. ರ0V : 9ೕಶನ ನಂ. 31
ದ^5 ಣ0V : 9ೕಶನ ನಂ. 29 ಬ+ತ. P.
ೕಶನ ನಂ. 31 ಚ ಬಂ
[ವ 0V : ರ].
ಪI ಮ0V : 9ೕಶನ ನಂ. 38
ಉತ. ರ0V : 9ೕಶನ ನಂ. 32
ದ^5 ಣ0V : 9ೕಶನ ನಂ. 30 ಬ+ತ. P.
ೕಶನ ನಂ. 31 ಚ ಬಂ
[ವ 0V : ರ].
ಪI ಮ0V : 9ೕಶನ ನಂ. 37
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NC: 2025:KHC:42785
RFA No. 64 of 2018
HC-KAR
ಉತ. ರ0V : 9ೕಶನ ನಂ. 33
ದ^5 ಣ0V : 9ೕಶನ ನಂ. 31 ಬ+ತ. P.
3. 9ೕಶನ ನಂ. 32 ಉತ. ರ0V 9ೕಶನ ನಂ. 33 ಇ+ತ. P. 9ೕಶನ ನಂ. 32 ರ ಪI ಮ0V 9ೕಶನ ನಂ. 37 ಇ+ತ. P 7ನಹ 9ೕಶನ ನಂ. 31 ಬ+d ಲ .
4. 9ೕಶನ ನಂ. 32 ಸ. ವ e fೕ ಭವದ ಬ$h ವರ i/+d ಲ .
5. ಪ ಕರಣ ಅjೕklರರ ಕ ಯಪತ ದ ನಂ. 10336/20015- 06- ಂಕ : 25.11.2005 ರ ಕ ಯ ಪತ ದ pq rನಂ6 ಸ.ನಂ.111 ರ ನ ಸ . ನ ನಂ. 30 ರ ಅಳ6 [ವ -ಪI ಮ 40 ಅ/, ಉತ. ರ-ದ^5 ಣ- 30 ಅ/ ಒtu 1200 ಚ.ಅ/ ಅಳ6ಯ ಸ . $ ಚWV ಬಂ .
[ವ 0V : ರ].
ಪI ಮ0V : 9ೕಶನ ನಂ. 39 ಉತ. ರ0V : 9ೕಶನ ನಂ. 32 ದ^5 ಣ0V : 9ೕಶನ ನಂ. 30 ಎಂwlAxy .
EX̤P/D29 3ೕಔ' ನ05 ಯಂ6 zಂl{0 ಇ+d ಲ .
|lಖ3ಗಳ ಸCಯಕ Pೕ ಶಕ+ ಮT. %ೕ' ಕ(ೕಷ* }ಂಗ~+ ದ^5 ಣ W."
20. In view of Court Commissioner's report it is proved that all the sites formed in the land Sy.No.111/3 are of the dimensions of 30x40 feet. Further upon considering the documentary evidence Exs.P-19, P-20 and P-21, which are sale deeds of the respective sites and upon considering the dimension of Ex.P-33 as per sale deed - Ex.P-19, the dimension of the site is shown as 40x30 feet having boundaries as follows:
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NC: 2025:KHC:42785 RFA No. 64 of 2018 HC-KAR "SCHEDULE ALL THAT PIECE AND PARCEL of the property bearing Site No.33, Katha No.544, situated at Hosapalya Village (Garvebhavipalya), Begur Hobli, Bangalore South Taluk, and measuring East to West 40-0" feet and North to South 30-0" feet and bounded on the:
East by : Road
West by : Property No.36
North by : Property No.34
South by : Property No.32"
21. Similarly, Ex.P-20 is sale deed executed by the vendor of defendant namely, M.Janardhan Rao in favour of the defendant through registered sale deed dated 25.11.2005 by showing the suit property as northern portion of property bearing Site No.30 measuring East to West 40' feet and North to South 30' feet and shows boundaries as follows:
"SCHEDULE All that piece and parcel of Northern Portion of Property bearing No.30, Property No.111, CMC Katha No.141/336, New Katha No.393, situated at Hosapalya Village Hongasandra Dhakle, Begur Hobli, Bangalore South Taluk, presently comes under Bommanahalli CMC Limits, measuring East to West 40 feet and North to South 30 feet in all measuring 1200 sq.ft., and bounded on:
East by : Road
West by : Property No.39
North by : Property No.32
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RFA No. 64 of 2018
HC-KAR
South by : Remaining Southern portion of
same Property No.30"
22. Similarly, upon considering the Ex.P-21 sale deed dated 01.02.2006 executed by the defendant's vendor in favour of one Syed Sharfuddin by describing the Schedule as southern portion of site No.30 measuring East to West 40 feet and North to South 30 feet and showing the boundaries as follows:
"SCHEDULE All that piece and parcel of Residentail Property bearing southern portion of Site No.30, Ward No.6, Property No.111, Old Khata No.141/336, New Katha No.393, Bommanahalli Nagarasabhe Khata No.336, Property No.30, situated at Hosapalya Village, Begur Hobli, Bangalore South Taluk, presently comes under Bommanahhalli Nagarasabhe Area Office, measuring East to West 40 feet and North to South 30 feet and bounded on:
East by : Road
West by : Property No.39
North by : Remaining of portion Site No.30
South by : Site No.29"
23. Upon considering the Court Commissioner's report, which is not disputed by the counsel for the appellant/defendant and considering these three sale deeds in Exs.P-19, P-20 and P-21, it is clearly revealed
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NC: 2025:KHC:42785 RFA No. 64 of 2018 HC-KAR that the vendor of defendant had mentioned the schedule in the sale deed Exs.P-20 and P-21 as if sold out northern half portion and southern half portion by mentioning each half portion as 30x40 feet, but same is contrary to the Court Commissioner's report, which is made upon physical verification.
24. Upon considering Ex.P-20 sale deed stating that the defendant purchased northern side property by mentioning the boundaries towards North site No.32 by jumping the site No.31 as if showing the said site includes the site No.31 also. But here the appellant/defendant has not produced the sale deeds of Janardhan Rao, who is a vendor of defendant to show that how much dimension of site he has purchased, whether 30x40 feet or 60x40 feet dimensions. During the course of the arguments, the learned Senior Counsel has shown the sale deeds of Janardhan Rao purchased from his vendor showing the dimension as 40x60 feet, but on physical verification when the Court Commissioner has made spot inspection and
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NC: 2025:KHC:42785 RFA No. 64 of 2018 HC-KAR submitted report, the dimension of the site No.31 is shown only as 30x40 feet. Therefore, it is clear that some fraudulent means have been practiced while mentioning the dimension of sites as 40x60 feet though actually the dimension is only 30x40 in respect of site Nos.30 and 31 also. When defendant's vendor Janardhan Rao has sold the property by making two halves equally, the dimensions of the sites ought to have been 15x40 and 15x40 respectively by dividing the site No.30. Therefore, by mentioning the dimension of the sites of 30x40 of northern and southern side, it is actually amounting to engulfing the site No.32, which is purchased by the plaintiff.
25. Ex.P-29 is the layout plan and in the same layout plan both the defendant's vendor and plaintiff have purchased the sites. This layout plan is not disputed though it is not approved by the competent authorities, but the purchase of sites are in the same layout plan as per Ex.P-29. Therefore, it is the burden on the defendant
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NC: 2025:KHC:42785 RFA No. 64 of 2018 HC-KAR to prove that as per layout plan formed by Kakappa and his children, the site No.30 was having dimension of 60x40 feet, but there is no evidence by the defendant that site No.30 is 40x60 feet.
26. Further the defendant is claiming that he has purchased property site No.31 as per Ex.D-10 registered sale deed dated 20.07.2011 purchased from Muniyappa, who is the GPA holder of Kakappa. Ex.P-18 is the death certificate of Kakappa, which proves the fact that the said Kakappa died on 15.10.2001, soon after death of Kakappa the agency made and created in favour of Muniyappa stands extinguished. Therefore, Muniyappa did not have any authority to make any alienation after death of Kakappa, but the defendant is contending that Ex.D-10 is the registered sale deed in respect of purchasing site No.31 on 20.07.2011. But this sale deed is proved to be false and fictitious one for the reasons above stated.
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27. In the sale deed Ex.D10, the property No.31 is showing the dimension of 40 x 30. Upon considering the sale deed in Ex.D.10 upon perusing the boundary shown towards north, it is mentioned as a private property. If really it is the genuine sale deed, then as per the sale deed towards north, the boundary towards the northern side ought to be site No.32, but this is not mentioned, but mentioned only as a private property. Therefore, it is proved that Ex.D.10 is the fictitious sale deed. Hence, the trial Court is correct in declaring that the sale deed Ex.D.10 dated 20.07.2011 is false and fictitious.
28. When this being the fact proved from re- appreciation of evidence on record, it is proved that the defendant has attempted to engulf site No.32 on the guise of sale deed Ex.D.10 and Ex.P.20 and Ex.P.21-sale deeds. Therefore, it is not proved that the defendant is in possession over site No.31. What the defendant is claiming is that in respect of site No.31 is fictitious one just to knock off site No.32 by making attempt to depict that it is
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NC: 2025:KHC:42785 RFA No. 64 of 2018 HC-KAR site No.31. Therefore, it is proved that the plaintiff is in possession over site No.32. Hence, there is no need to make prayer for possession in the plaint. Therefore, the trial Court is correct in observing that the plaintiff is in possession over site No.32. Hence, judgments relied on by the appellant are not applicable in the present case.
29. Therefore, under these facts and circumstances and having difference in the facts and circumstances in the judgments cited by the counsel for the appellant/defendant, the same are not applicable in the present case.
30. Therefore, the plaintiff has successfully proved that the defendant has got executed and created fictitious and false sale deed as per Ex.D.10 and therefore, I answer Point No.1 in affirmative, Point Nos.2 and 3 in negative. Therefore, there is no perversity or illegality found in the judgment and decree. Thus, the appeal is liable to be dismissed.
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31. Accordingly, I proceed to pass the following ORDER i. The appeal is dismissed.
ii. The judgment and decree dated 04.12.2017 passed in O.S.No.576/2012 on the file of XII Addl. City Civil Judge, Bangalore City (CCH-27) is hereby confirmed.
iii. No order as to costs.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
DR,PB
List No.: 1 Sl No.: 30