Bangalore District Court
Sri.G.Shankar vs C.R.Somashekar on 1 October, 2016
1 O.S.2899/2016
Form No.9
(Civil) Title
Sheet for
Judgment
in Suits
R.P. 91
PRESENT: Sri Parameshwara Prasanna,
B.A.LL.B.,
LXII Additional City Civil and Sessions Judge,
Bangalore City.
Dated this the 1st day of October, 2016
O.S.No.2899 / 2016
PLAINTIFF: Sri.G.Shankar,
S/o late C.S.Gundappa,
Aged about 46 years,
Residing at No.166,
EWS, 2nd Stage, K.H.B Colony,
Basaveshwaranagar,
Bengaluru-560 079.
[By Bhagyaraju,
Advocate]
/v e r s u s/
DEFENDANTS 1. C.R.Somashekar,
S/o C.R.Rama
Aged about 36 years,
No.28/2, 20th main,
Vijayanagar,
Bengaluru-560 040.
2. Hanumanthegowda,
S/o Ramaiah,
Aged about 42 years,
No.32/2, 12th main,
4th Cross, Vijayanagar,
Bengaluru-560 040.
3. P.Arun,
s/o late S.V.Parameshwar,
Aged about 58 years,
2 O.S.2899/2016
No.337, 1st floor, UVCE Layout,
3rd Stage, 1st block,
Basaveshwaranagar,
Bengaluru-560 079.
(Exparte)
Date of institution of the : 11.04.2016
suit
Nature of the suit : For Declaration and
Injunction
Date of commencement of : 09.08.2016
recording of the evidence
Date on which the : 01.10.2016
Judgment was
pronounced.
: Year/s Month/ Day/s
Total duration s
-- 01 21
(Parameshwara Prasanna.B)
LXII ACC & SJ: B'LORE.
The suit is filed by the plaintiff for declaration
and permanent injunction.
2. The case of the plaintiff in brief is that,
3 O.S.2899/2016
The wife of the plaintiff namely
Smt.M.P.Sandhya purchased the suit schedule
property under registered Sale Deed dated
10.12.2004 registered as document No.YAN-1-
17940/2004-05 of Book-I in CD No.YAND 97 at the
office of the Sub-Registrar, Yelahanka, Bengaluru.
That subsequently Smt.M.P.Sandhya gifted the suit
schedule property to the plaintiff as per Gift Deed
dated 10.10.2013 duly registered as document
No.YAN-1-6361-2013-14 of Book-1 in CD No.YAND
509 at the office of the Sub-Registrar of Yelahanka,
Bengaluru. The original Sale Deed dated 10.12.2004
was lost by Smt.M.P.Sandhya and in that regard she
has filed the complaint before Kamakshipalya Police
Station, with regard to losing of Sale Deed, publication
was made on Vijaya Vani Kannada Newspaper dated
12.10.2013. That on the strength of gift deed
aforesaid plaintiff got changed the Katha in respect of
suit schedule property in his name and plaintiff has
been in exclusive physical and lawful possession of the
suit schedule property.
4 O.S.2899/2016
3. When the matter stood thus, the plaintiff
recently learnt that some one else coming near the
suit schedule property by falsely claiming right over it
and as the plaintiff made nquiry in the office of Sub-
Registrar and after verification, the plaintiff came to
know that the 1st defendant by falsely claiming himself
as power of attorney holder of Smt.M.P.Sandya
created Sale Deed dated 23.05.2007 in favour of 2nd
defendant, which is registered on 26.5.2007 as
document No.BYP-1-764/2007-08 in CD No.BYPD3, at
the office of Sub-Registrar, Byatarayanapura,
Bengaluru in respect of the suit schedule property.
Further within a span of four days, 2nd defendant
created another Sale Deed dated 30.05.2007
registered as document No.BYP-10793-2007-08 of
book-1 in CD No.BYPD 3 in favour of 3rd defendant in
respect of the suit schedule property. In fact
Smt.M.P.Sandhya has not executed any general power
of attorney in favour of any person much less in
favour of 1st defendant.
5 O.S.2899/2016
4. The plaintiff under Right to Information Act,
has obtained the enclosures submitted at the time of
registration of the Sale Deed dated 23.05.2007. But
those documents produced by the plaintiff under Right
to Information Act does not include the alleged power
of attorney alleged to have executed by
Smt.M.P.Sandhya in favour of 1st defendant. The
defendants 1 to 3 have colluded together and created
forged documents styled as General Power of Attorney
pretended to have executed by Smt.M.P.Sandhya in
favour of 1st defendant and thereby the defendants
played fraud against Smt.M.P.Sandhya and plaintiff.
The plaintiff has filed a police complaint in this regard
against the defendants before Deputy Commissioner
of Police, Bengaluru North and it was referred to
Yelahanka New Town Police for investigation and the
same is pending for investigation. The plaintiff
apprehends that defendants are likely to interfere with
possession of the suit schedule property and he also
apprehends that defendants are likely to alienate the
suit schedule property based on forged documents.
6 O.S.2899/2016
Hence the plaintiff has been constrained to file suit for
declaring the Sale Deeds dated 23.05.2007 and
30.05.2007 are not binding on the plaintiff and
consequently for permanent injunction to restrain the
defendants, their henchmen, agents, successors,
assignees, heirs, representatives or anyone claiming
through or under them from interfering with the
plaintiff's peaceful possession and enjoyment of the
suit schedule property.
5. On registering of the suit, the suit
summons and emergent notice of IA Nos.1 and 2
issued to the defendants and since the summons could
not be served to the defendants in ordinary way, the
summons to defendants 1 to 3 were taken by way of
Advertisement in Kannada Prabha Daily Newspaper
dated 15.6.2016 by calling upon the defendants 1 to 3
to appear before the Court on 20.07.2016. Since in
spite of paper publication, the defendants 1 to 3 have
not appeared before the Court, they were placed ex-
7 O.S.2899/2016
parte by this Court on 20.07.2016. Thereafter the
case was posted for ex-parte evidence of the plaintiff.
6. In order to prove the case of the plaintiff,
the plaintiff examined himself as Pw.1 and he got
examined his wife Smt.M.P.Sandhya as Pw.2 and
another witness Smt.Swarnalatha, Sub-Registrar of
Byatarayanpura office as Pw.3 and got marked
documents as Exs.P.1 to P.30.
7. Heard arguments of learned advocate for the
plaintiff and perused the records of the case.
8. The following points that arise for my
consideration are:
(1) Whether the plaintiff is entitled for
the reliefs sought for in the plaint?
(2) What decree or order?
9. My finding on the above points are as
under:
Point No.1: In the Affirmative;
Point No.2: As per final order;
for the following:
8 O.S.2899/2016
10. POINT NO. 1 : The suit is filed by the
plaintiff for declaration and permanent injunction.
The case of the plaintiff in brief is that, originally
the suit schedule property belonged to the plaintiff's
wife M.P,Sandhya andas pper registered gift deed
dated 10.12.2013 she transferred the suit schedule
property in favour of the plaintiff and since then the
plaintiff has been in actual possession and enjoyment
of the suit schedule property. That recent to the filing
of the suit, the plaintiff learnt that some one else is
coming near the suit schedule property and claiming
right over it and as such plaintiff made inquiry before
the Sub-Registrar, Byatarayanapura, Bengaluru and
came to know that 1st defendant by falsely claiming
himself to be power of attorney holder of
Smt.M.P.Sandhya created false Sale Deed dated
23.5.2007 in favour of 2nd defendant and got
registered it before Sub-Registrar of Byatarayanpura
9 O.S.2899/2016
and further within a span of 4 days, 2nd defendant
created another false Sale Deed dated 30.05.2007 in
favour of 3rd defendant. That Smt.M.P.Sandhya has
not executed any power of attorney in favour of 1st
defendant and even the alleged power of attorney has
not been submitted before the Sub-Registrar,
Byatarayanapura at the time of registering of Sale
Deed dated 23.05.2007 and as such the Sale Deeds
dated 23.05.2007 and 30.05.2007 which were
executed on the basis of got up and forged power of
attorney (alleged to have been executed by
Smt.M.P.Sandhya in favour of 1st defendant) are not
binding on the plaintiff and the plaintiff has filed the
police complaint in this regard before the Deputy
Commissioner of Police, Bengaluru which was referred
to Yelahanka New Town Police for investigation.
Hence the plaintiff has filed this suit for declaration
that the aforesaid Sale Deeds dated 23.05.2007 and
30.05.2007 are not binding on the plaintiff and for
permanent injunction restraining the defendants,
their henchmen, agents, successors, assignees, heirs,
10 O.S.2899/2016
representatives or anyone claiming through or under
them from interfering with the plaintiff's peaceful
possession and enjoyment of the suit schedule
property.
11. That after admitting this suit, suit
summons and emergent notice of IA Nos.1 and 2
issued to the defendants and since the summons could
not be served to the defendants in ordinary way, the
summons to defendants 1 to 3 were taken by way of
Advertisement in Kannada Prabha Daily Newspaper
dated 15.6.2016 by calling the defendants 1 to 3 to
appear before the Court on 20.07.2016. Since in spite
of paper publication, the defendants 1 to 3 have not
appeared before the Court, they were placed ex-parte
by this Court on 20.07.2016. Thereafter the case was
posted for ex-parte evidence of the plaintiff.
12. That in order to prove the case of the
plaintiff, the plaintiff has examined himself as Pw.1
and in the affidavit filed towards examination-in-chief,
the plaintiff has reiterated the plaint averments and
11 O.S.2899/2016
plaintiff's wife namely Smt.J.P.Sandhya examined as
Pw.2 and she categorically stated that she has not
executed any power of attorney in favour of 1st
defendant by authorizing him to execute Ex.P.26 Sale
Deed dated 23.05.2007 in favour of 2nd defendant in
respect of suit schedule property and she has stated
that she has executed Ex.P.23 Gift Deed dated
10.10.2013 in favour of the plaintiff. The oral
evidence of Pws.1 and 2 and Ex.P.23 establishes the
execution of Gift Deed by Smt.M.P.Sandhya in favour
of the plaintiff. It is pertinent to note that, the
Ex.P.26 /Sale Deed is executed by 1st defendant by
pretending himself as alleged GPA holder of
Smt.M.P.Sandhya. But the details of alleged General
Power of Attorney including its date not mentioned in
Ex.P.26. In fact, it is for the first defendant to produce
and prove the alleged GPA said to have executed by
Pw.2 in his favour. Since defendant No.1 has failed
to appear and contest the suit, Ex.P.26 executed by
him in favour of the defendant No.2 conveying the
schedule property itself becomes, void and not binding
12 O.S.2899/2016
on the plaintiff. Consequently even Ex.P.12 Sale deed
executed by the defendant No.2 in favour of the
defendant No.3 based on the said alleged GPA also
have no binding effect on the plaintiff. These Exs.P.12
and Ex.P.26 does not confirm any right on defendant
Nos.2 and 3.
13. The plaintiff has produced Ex.P.27 the Fist
Information Report registered by the Yelahanka New
Town Police in Crime No.73/2014 against the
defendants 1 to 3 and against the Sub-Registrar of
Byatarayanapura to substantiate his contention that
defendant No 1 to 3 have cheated him.
14. The plaintiff has also produced police
complaint, acknowledgement and the paper
publication to show that the original of the Ex.P.22
Sale Deed dated 10.12.2004 -wherein the Pw.2 had
purchased the suit schedule property was lost, Pw.1
has produced documents from Exs.P.13 to 20, which
are annexure/documents submitted by the defendant
No.1 at the time of executing Ex.P.26/Sale Deed.
13 O.S.2899/2016
These documents are obtained under Right to
Information Act, from the Sub-Registrar of
Byatarayanapura. The plaintiff's counsel as per
Exhibit P 30 has specifically sought the copy of the
GPA said to have been executed by Pw.2, the
production of which is mandatory for registration of
Sale Deed Ex.P.26. On such request, the Sub-
Registrar has not furnished the GPA whereas all other
annexure are furnished. This itself clearly establishes
that, no GPA has been executed by Pw.2 in favour of
1st defendant.
15. In order to elicit the fact that the alleged
GPA referred in Ex.P.26 has not been produced at the
time of registration of Ex.P.26 the present Sub-
Registrar of Byatarayanapura was summoned to this
Court and she has been examined as Pw.3. and she
has produced Exhibit P29 ie all the annexure obtained
by their office for the purpose of registration of
Ex.P.26 Sale deed ,wherein the GPA claimed by the
defendant No.1 is not produced at all, however, very
14 O.S.2899/2016
strangely, in its place, the then Sub-Registrar has
obtained an undertaking letter from the defendant
No.2 to the effect "in the event of any
litigation/dispute, the Sub-Registrar has right to
cancel the document". PW 3 in her deposition stated
that as per record no G.P.A alleged to have executed
by Smt.Sandhya was produced at the time of
execution of EX P26 Sale deed. The conduct of the
parties at this relevant point of time, itself clearly
establish that there was no GPA to represent and
convey the schedule property on behalf of Pw.2 in
favour of defendant No.2.
16. In fact, the decision of Hon'ble High Courts
and the Hon'ble Apex Court clearly set the law that in
the event of sale of immovable property by an agent
on the basis of GPA, the GPA should have been a
registered document. In this case, no GPA produced
at the time of execution of Ex.p.26 Sale Deed. The
then Sub-Registrar, Byatarayanapura, ought not to
have registered the Sale Deed produced at Ex.P.26 on
15 O.S.2899/2016
the basis of a letter/undertaking produced at Ex.P.28.
This kind of procedure adopted by the Sub-Registrar
for registering the Sale Deed at Ex.P.26 is unknown to
Registration Act. Since the first sale deed at Ex.P.26 is
void and illegal, even the subsequent Sale Deed
produced at Ex.P.12 is also void and illegal
17. The evidence of Pws.1 to 3 coupled with
Exs.P.1 to 30 clearly establishes that no GPA has been
executed by Smt.M.P.Sandhya in favour of 1st
defendant and as such 1st defendant had no authority
to execute Ex.P.26 Sale Deed dated 23.5.2007 and as
such the subsequent Ex.P.12 Sale Deed alleged to
have been executed by the 2nd defendant in favour of
3rd defendant also not binding on the plaintiff. Since
the defendants are placed ex-parte the evidence of
Pw.1 and Ex.P.1 to 30 remains unchallenged and un-
rebutted. There is no ground or reason to disbelieve
the evidence of Pws.1 to 3 and Exs.P.1 to 30 and as
such I am of the opinion that, the plaintiff is entitled
16 O.S.2899/2016
for relief sought for in the plaint. Hence, point No.1 is
answered in the Affirmative.
18: POINT NO.2: In view of the above
discussions and my finding to the Point No.1, I
proceed to pass the following:
The suit filed by the plaintiff is
decreed with costs.
It is declared that Sale Deed dated
23.05.2007 (Ex.P.26) executed by
1st defendant by showing himself as
power of attorney holder of
Smt.M.P.Sandhya in respect of suit
schedule property which was
presented and registered on
26.03.2007 as document No.BYP-1-
764/2007-08 in CD No/BYPD3 at
the office of Sub-Registrar,
Byatarayanapura is not binding on
the plaintiff.
It is further declared that another
Sale Deed dated 30.05.2007
(Ex.P.12) executed by the 2nd
17 O.S.2899/2016
defendant in respect of suit
schedule property in favour of 3rd
defendant, registered as document
No.BYP-1-793/2007-08 of Book-1
in CD No.BYPD3 on 30.05.2007 at
the office of Sub-Registrar,
Byatarayanpura, is also not binding
on the plaintiff.
The defendants, their henchmen,
agents, successors, assignees,
heirs, representatives or anyone
claiming through or under them
from interfering with the plaintiff's
peaceful possession and enjoyment
of the schedule property.
Draw decree accordingly.
***
[Dictated to the Judgment Writer, Scripted by her and then corrected, signed and pronounced by me, in the Open Court on this the 1st day of October, 2016).
[Parameshwara Prasanna.B.] LXII Additional City Civil & Sessions Judge BANGALORE.
18 O.S.2899/20161. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 G.Shankar,
Pw.2 Smt.M.P.Sandhya
Pw.3 Smt.Swarnalatha
2. List of witnesses examined on behalf of the Defendant/s:
NIL
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P1 : Notarised copy of Khatha certificate in form 'B' issued by BBMP in the name of Smt.M.P.Sandhya Ex.P.2 : Copy of police complaint dt.26.9.2013 Ex.P.3 : Acknowledgment dated 7.10.2013 issued by Kamakshipalya police station Ex.P.4: Receipt dated 12.11.2013 along with Khatha registered extract Exs.P.5 to 10: Tax paid receipts 6 in Nos. Ex.P.11: Copy of complaint dated 13.1.2014 given to Deputy Commissioner of Police, Bengaluru North East Ex.P.12: Certified copy of registered Sale Deed dated 25.3.2007 Ex.P.13: Certified copy of the letter issued by Sub-Registrar, 19 O.S.2899/2016 Byatarayanpura in respect of information sought for under Right to Information Act.
Ex.P.14 : Certified coy of affidavit dated 26.5.2007 Ex.P.15 : Certified copy of Form No.1 dated Ex.P.15 Ex.P.16 : Certified copy of conversion certificate Ex.P.17 : Certified copy of tax paid receipts Ex.P.18 : Tax demand registers extract Ex.P.19 : Form No.60 of Hanumanthegowda Ex.P.20 : Form NO.60 of Sandhya Ex.P.21 : Certified copy of encumbrance certificate Ex.P.22 : Certified copy of sale deed dated 10.12.2004 Ex.P.23 : Gift Deed dated 10.10.2013 Ex.P.24 : Encumbrance certificate from the year 2004 to 2013 Ex.P.25 : Paper publication dt 12.10.2013 issued in Vijayavani Newspaper
4. List of documents marked on behalf of the defendant/s:
-NIL-
[Parameshwara Prasanna.B.] LXII Additional City Civil & Sessions Judge, BANGALORE.20 O.S.2899/2016 21 O.S.2899/2016