Bangalore District Court
H.K. Sridhara Reddy vs C.P. Selvaraj on 1 June, 2019
C.R.P.67 Govt. of Karnataka
Form No.9(Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XII ADDL. CITY CIVIL JUDGE, AT
BENGALURU
Dated this the 1st day of June 2019.
PRESENT: SRI. SATHISHA L.P., B.A.,LL.B.,
XII ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH.No.27), BENGALURU
O.S.No.7230/2009
PLAINTIFF : H.K. Sridhara Reddy,
S/o Late H. Krishna Murthy,
Aged about 41 years,
Residing at No.823,
Hoodi, Rajapalya,
Mahadevapura Post,
Bengaluru-560 048.
(By Sri N.B. Advocate)
VS.
DEFENDANTS : 1. C.P. Selvaraj,
S/o. Coil Pille,
Aged about 63 years,
Residing at No.718,
Immanuel House,
Ex-Servicemen Colony
Doddabanaswadi,
Bengaluru-560 043
2 O.S.No.7230/2009
2. M.Vadivudaya Nayagi
D/o S. Muthukrishnan,
Major, residing at No.51,
4th Street, T.T. Nagar,
Karaikudi, Karaikudi Taluk,
Shigangai District
Tamil Nadu
3. Mrs. Janani Venkataraman,
W/o G. Venkataraman,
Major
4. Mr. G. Kalyanaraman,
S/o R. Ganapathi,
Major
(3) and (4) are residing at
No.11, 7th Street,
Subramaniapuram,
Karaikudi - 2,
Sivagangai District
Tamil Nadu
5. G. Aravind,
S/o T. Gopala Reddy,
Aged about 25 years,
Residing at No.3, "Aakanksha"
3rd Cross, Sri Sathya Sai Baba Layout
Kodigehalli Main Road,
K.R. Puram Post, Bengaluru-560 036
6. G.S. Radhakrishnan,
S/o Late S. Gopala Krishnan Nair,
Residing at No.110, R.R. Layout,
3rd "A" Cross, Vijinapura,
Bengaluru-560 016
3 O.S.No.7230/2009
7. T. Valsala,
W/o G.S. Radhakrishnan,
Residing at No.110, R.R. Layout,
3rd "A" Cross, Vijinapura,
Bengaluru-560 016
8. R. Hari Haranadh Jadav
S/o Mr. R. Mallesudu
R/at No.10, 1st Floor,
Surya Mansion, Ayyappanagar,
K.R. Puram, Bengaluru-560 036
9. M. Somasekhar,
S/o M. Krishna Murthy,
Residing at No.20, Ground Floor,
Ganesh Nilaya,
Opp: to SGR Dental College,
Munnekolalu, Marathalli Post,
Bengaluru-560 037
10. S.K. Sarkar,
S/o Late Subodh Sarkar,
Residing at M.P. Nagaina,
Flat No.301-302, Adityapur,
Jamshedpur-13.
11. C. Sarkar,
S/o S.K. Sarkar,
Residing at M.P. Nagaina,
Flat No.301-302, Adityapur,
Jamshedpur-13
12. Chengaiah Thachuru,
S/o T. Umapathi,
Residing at Emperor Nest,
G.M. Palya, Bengaluru-75.
4 O.S.No.7230/2009
13. Nandlal Purahot,
S/o B.L. Purohit,
Residing at No.Sri Balaji Floor Mills,
Ayyappanagar, K.R. Puram,
Bengaluru-560 036.
14. Ramesh Kumar K.P.
S/o Kunjappa Nair,
Residing at No.16/E
Sri Laxmi Nivas,
SSB Layout, 3rd Cross,
Kodigehalli Main Road,
K.R. Puram, Bengaluru-560 036
15. Ganesh C.
S/o M.S. Chandrasekhar Iyer
Residing at C/o C. Sanjeevi Nilayam
DVG Road, Narayana Reddy Layout,
Ramamurthy Nagar, Doorvani Post,
Bengaluru-560 016.
(D.1 by Sri PTA, Advocate
D.2 to D4 -Exparte, D.5 by Sri DMR
D.6 to D.8 by Sri RMR, D.9 Exparte
D.10 to D.15 by Sri CMR, Advocate)
Date of Institution of the suit : 04.11.2009
Nature of the suit : Suit for Declaration,
Injunction and Possession
Date of commencement of : 26.07.2011
recording of the evidence
Date on which the Judgment was : 01.06.2019
pronounced
5 O.S.No.7230/2009
Total Duration Years Months Days
09 06 27
(SATHISHA L.P.)
XII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
Plaintiff has filed this suit for the relief of declaration to declare that plaintiff is owner of the suit schedule property and sale deed executed by defendant No.1 in favour of defendants No.3 and 4 so far as it relates to suit schedule property dated 01.09.1992 and sale deed dated 06.05.2008 registered in the office of Sub-Registrar, K.R. Puram, executed by defendants No.2, 3 and 4 in favour of fifth defendant so far as suit schedule property is concerned is not binding on the plaintiff and for possession and such other reliefs.
2. The case of the plaintiff is that, 6 acres 17 guntas of land in Sy.No.21/2 of Basavanapura Village, K.R. Puram, Bengaluru was originally belonged to H.A. Sunandamma and she 6 O.S.No.7230/2009 got the same under a compromise decree dated 23.04.1972 in O.S.No.1/1967 on the file of the Civil Judge, Bengaluru Rural District and said Sunandamma was in possession and enjoyment of the said land as absolute owner from the date of the said compromise decree.
The first defendant was allowed to develop 6 acres of land out of 6 acres 17 guntas in Sy.No.21/2 of Basavanapura Village, K.R. Puram under the power of attorney dated 16.11.1988 and to ensure that other members of the family have no objections in the matter of execution of power of attorney by Smt. H.A. Sunandamma, the brothers and sisters of the plaintiff and plaintiff himself have also joined in executing the aid power of attorney in favour of the first defendant. Thus the first defendant was empowered to develop and sell 6 acres of land only. First defendant had no right, title, interest or power to deal with 17 guntas of remaining land and said 17 guntas of land was retained by Smt. Sunandamma towards western portion of the said land. Out of 17 guntas of land retained by Sunandamma, said 7 O.S.No.7230/2009 Sunandamma has gifted 8½ guntas in favour of the plaintiff under a gift deed dated 10.06.2005 and plaintiff has accepted the said gift and said gift deed is followed by rectification deed dated 10.08.2009 registered in the office of Sub-Registrar, K.R. Puram, Bengaluru. Suit schedule property is portion of the said property which Sunandamma has gifted under the gift deed followed by rectification deed. Plaintiff has been put in possession of the said 8½ guntas of land gifted to him and said 8½ guntas of land is agricultural land and same is assessed to the land revenue and all the revenue records are standing in the name of the plaintiff in respect of the said land. Defendant No.1 had no authority or power to deal with 17 guntas of land retained by Smt. Sunandamma, yet in the guise of exercising power under the power of attorney relating to the 6 acres of land, first defendant purports to convey the suit property in favour of defendants No.2 to 4 under two registered sale deeds one is registered on 01.09.1992 and another on 01.09.1992 in the office of Sub- Registrar, K.R. Puram. Defendants No.2 to 4 in turn purports to convey the schedule property under a registered sale deed dated 8 O.S.No.7230/2009 06.05.2008 in favour of 5th defendant. The plaintiff had filed suit for injunction in O.S.No.26741/2009 on the file of City Civil Judge, Bengaluru. In the said suit injunction was granted and later vacated. Taking advantage of the same, the defendants have proceeded to put up construction high handedly and hence the plaintiff is constrained to file this suit for declaration of title and for possession of the suit schedule property. The plaintiff after going through the written statement filed by the fourth defendant herein, in O.S.No.26741/2009 came to know that first defendant herein has executed sale deed in favour of 2nd, 3rd and 4th defendants and further he learnt that defendants No.2 to 4 have in turn executed sale deed in favour of fifth defendant and at no point of time the defendants interfered in the possession of the plaintiff till recently. Defendants No.2 to 4 are not residents of Bengaluru and they never made any sort of claim over the suit schedule property. It is only fifth defendant who recently started interfering with the schedule property. It is further contended that, the plaintiff has produced a rough sketch showing 6 acres of land, which is subject matter of GPA and which is delineated by 9 O.S.No.7230/2009 letters ABCD in the annexed sketch. Letters BCEF delineates 17 guntas of land retained by Smt. Sunandamma. Letters BGHF delineates 8½ guntas of land gifted by Smt. Sunandamma in favour of the plaintiff. The defendants No.1 to 5 have encroached upon 1½ guntas of land owned by the plaintiff, which is delineated by letters BXYF. The 1½ guntas of land delineated by letters BXYF is the suit schedule property, which is subject matter of this suit. It is further contention of the plaintiff that, first defendant misused the general power of attorney dated 16.11.1988 ad abused the rights delegated to him under the said power of attorney. Further it is submitted by the plaintiff that his mother Smt. Sunandamma and her children have retained 17 guntas of land on the western side of Sy.No.21/2 of Basavanapura village, K.R. Puram Hobli, Bengaluru. But clandestinely first defendant in order to defraud Smt. Sunandamma and her children exercised his powers outside the purview/scope of the general power of attorney dated 16.11.1988. Defendants No.2 to 4 colluded with the first defendant and though they were very well aware that the 10 O.S.No.7230/2009 execution of alleged sale deeds in favour of defendants No.2 to 4 is beyond the scope of the general power of attorney and Sunandamma and her children have retained an extent of 17 guntas in Sy.No.21/2 of Basavanapura Village. It is further contended that, defendant No.5 has filed written statement in O.S.No.26741/2009 contending that plaintiff ought to have sought for declaration of his title and hence this suit is for the relief of declaration in respect of suit schedule property. The defendants have put up construction over the suit schedule property inspite of pendency of O.S.No.26741/2009 and therefore it has become necessary for the plaintiff to seek for mandatory injunction of demolition of structure put up by the fifth defendant. It is further pleaded fifth defendant during pendency of the suit, has sold/conveyed the suit schedule property in favour of defendants No.6 to 15 and the sale deeds executed by the defendant No.5 in favour of defendants No.6 to 15 are not binding on the plaintiff, since same are executed during pendency of the suit. With other contentions plaintiff seeks for decree of the suit. 11 O.S.No.7230/2009
3. After service of the summons, defendant No.1 has appeared before Court and filed a detailed written statement disputing almost all the averments of the plaint. It is contended by the defendant No.1 that, suit is not maintainable either on law or facts of the case and same is to be dismissed. It is admitted that Sunandamma was the owner of 6 acres 17 guntas of land in Sy.No.21/2 of Basavanapura Village and it is also admitted that GPA was executed in favour of defendant No.1 only to the extent of 6 acres of land and 17 guntas was retained by Sunandamma and her children. It is disputed by the defendant No.1 that Sunandamma has gifted 8½ guntas in favour of plaintiff and same is accepted by the plaintiff and it is also disputed about execution of rectification deed. It is further contended that, there is no nexus with the said property and the said property is far away from the property belonging to the defendant herein. Such being the case suit is to be dismissed.
It is further contended by defendant No.1 that plaintiff is scribing a story of his own in making arrangements to intervene 12 O.S.No.7230/2009 and snatch away the valuable property belonging to the defendant herein. It is disputed by defendant No.1 that rough sketch produced by the plaintiff along with the plaint is a false and baseless and it is contended that, this defendant is a builder by profession and has constructed apartment building on the property belonging to the defendant only and he has not encroached any property and defendant No.1 has not misused any GPA and prior to commencement of construction work, there is existence of compound wall and hence the encroachment does not arise at all. It is further contended by the defendant No.1 that, suit of the plaintiff lacks cause of action and the suit of the plaintiff is to be dismissed for non-joinder and mis-joinder of parties. With other contentions defendant No.1 seeks for dismissal of the suit.
4. Defendants No.6, 7, 8, 10 to 15 have also filed written statement through their GPA holder disputing and denying the plaint averments and they contend in the line of defendant No.1. They have further contended that it is not agricultural 13 O.S.No.7230/2009 property and court fee paid by the plaintiff is incorrect and plaintiff has no right over the schedule property, and plaintiff is utter stranger to the suit schedule property and with other contentions seeks for dismissal of the suit.
5. Defendant No.5 has also filed written statement disputing almost all the averments of the plaint. The written statement filed by defendant No.5 is also in the line of defendant No.1 and he has also disputed that, there is encroachment of the suit schedule property. He further contended that there is no cause of action for the suit and further contends that after getting permission from the concerned authorities and sanctioned plan from the concerned authorities he has dug a borewell and also obtained temporary electricity connection and thereafter has got dig a foundation and has erected pillars and completed roofing of ground and first floor and was carrying on the construction work, and at that juncture plaintiff without having any manner of right, title or interest have interfered in the construction work on 03.08.2009 at 5-30 p.m. It is contended that plaintiff has 14 O.S.No.7230/2009 suppressed real material facts and there is no encroachment and the plaintiff is making an attempt to grab the property belonging to the defendant No.5 and with other contentions seeks for dismissal of the suit.
6. On the basis of the above pleadings, the following issues were framed:-
1. Whether the plaintiff proves his title to the suit property?
2. Whether the plaintiff proves that the defendants have encroached the suit property shown by letters BXYF in the hand sketch?
3. Whether the defendants 1 and 5 prove that the 5th defendant is the absolute owner of the written statement schedule property and further prove that it is part and parcel of 6 acres of land in Sy.No.21/2?
4. Whether the court fee paid is sufficient?
5. Whether the plaintiff is entitled for the reliefs?
6. What order or decree?
Additional Issues
1. Whether the defendant Nos.6 to 8 and 10 to 15 prove that they are the owners of the flat 15 O.S.No.7230/2009 bearing Nos.303, 203, 102, 202, 201, 301, 302 having purchased the same from the 5th defendant as stated in the written statement?
7. To substantiate the plaintiff's case, the plaintiff himself examined as P.W.1 and one Redappa and Sudhakar are examined as P.W.2 and 3 and Ex.P.1 to P.13 are marked. Ex.P.1 is GPA dated 16.11.1988, Ex.P.2 is gift deed dated 10.06.2005, Ex.P.3 is rectification deed dated 10.08.2009, Ex.P.4 to P.8 are RTC, Ex.P.9 is certified copy of sale deed, Ex.P.10 is certified copy of sale deed dated 06.05.2008, Ex.P.11 is note sheet of BBMP, Ex.P.12 is blue print and Ex.P.13 is affidavit.
To substantiate the defence, D.W.1 and 2 are examined and Ex.D.1 5o D.66 are marked. Ex.D.1 is sale deed dated 01.09.1992, Ex.D.2 is sale deed dated 01.09.1992, Ex.D.3 is sale deed dated 06.01.2008, Ex.D.4 and D.5 are khatha register extract, Ex.D.6 to D.19 are tax paid receipts, Ex.D.20 is GPA dated 31.12.2007, Ex.D.21 is GPA dated 19.02.2003, Ex.D.22 to D.24 are certificates issued by BBMP, Ex.D.25 and D.26 are reply letter of BBMP, Ex.D.27, D.28 and D.29 are demand register 16 O.S.No.7230/2009 extracts, Ex.D.30 is building licence, Ex.D.31 is licence, Ex.D.32, D.33 and D.34 are electricity bills, Ex.D.35 is certified copy of layout plan, Ex.D.36 is borewell bill, Ex.D.37 is official memorandum, Ex.D.38 is BESCOM bill, Ex.D.39 to D.42 are photographs and Ex.D.43 is CD, Ex.D.44 is certified copy of GPA dated 16.11.1989, Ex.D.45 is certified copy of I.A.No.1 in O.S.No.26471/2009, Ex.D.46 is certified copy of I.A.No.2 in O.S.No.26471/2009, Ex.D.47 is certified copy of I.A.No.3 in O.S.No.26471/2009, Ex.D.48 is orders on I.A.No.1 to 3 in O.S.No.26471/2009, Ex.D.49 is memo, Ex.D.50 is certified copy of order sheet, Ex.D.51 is certified copy of sale deed dated 11.01.2010, Ex.D.52 is certified copy of sale deed dated 27.03.2010, Ex.D.53 is certified copy of sale deed dated 03.05.2010, Ex.D.54 is certified copy of sale deed dated 28.06.2010, Ex.D.55 is certified copy of sale deed dated 15.04.2011, Ex.D.56 is certified copy of sale deed dated 28.11.2011, Ex.D.57 is certified copy of sale deed dated 07.12.2011, Ex.D.58 is certified copy of sale deed dated 07.12.2011, Ex.D.59 is certified copy of judgment in 17 O.S.No.7230/2009 O.S.No.7571/2011, Ex.D.60 is certified copy of decree in O.S.No.7571/2011, Ex.D.61 is GPA executed by Sunandamma, Ex.D.62 is GPA, Ex.D.63 is 9 BESCOM bills, Ex.D.64 is 5 gas bills, Ex.D.65 is 7 tax paid receipts and Ex.D.66 is certified copy of registered sale deed.
8. The learned counsel for plaintiff vehemently contended that, the property bearing Sy.No.21/2 of Basavanapura Village measuring 6 acres 17 guntas was allotted to the share of mother in the compromise decree and she executed GPA in favour of defendant No.1 under Ex.P.1 only for 6 acres of land for the purpose of forming layout. On the guise of the said GPA, he has executed sale deed in favour of defendants No.2 to 4 under the registered sale deeds dated 01.09.1992. It is further submitted that, the mother of the plaintiff, i.e., Smt. Sunandamma who retained 17 guntas in Sy.No.21/2 has executed registered gift deed in favour of the plaintiff with respect to 8½ guntas and the said gift is accepted by the plaintiff and he was put in possession of the property by virtue of the gift deed. He filed a suit for 18 O.S.No.7230/2009 injunction in O.S.No.26741/2009 for the relief of permanent injunction. In that suit defendants had taken contention in the written statement that they have purchased the suit schedule property and they are making constriction and after that he withdrawn that suit, since he has filed this comprehensive suit. He further submitted that, defendants have not disputed the plaint averments as known to law and in view of this it is clear cut admission by the defendants that there is encroachment of the suit property. Hence he seeks for decree the suit.
9. Per contra, learned counsel for defendants has categorically contended that, in O.S.No.26741/2009 filed by the plaintiff, order of temporary injunction was rejected and Court has clearly observed in the said order that there is no encroachment and for that reason the suit was withdrawn and present suit is filed only to harass the defendants and there is no encroachment as such and plaintiff has not proved by the cogent evidence the suit property is part and parcel of 17 guntas of land retained by Sunandamma and there is encroachment by the defendants. 19 O.S.No.7230/2009 Apart from that, defendants' counsel also argued that plaintiff has not paid the court fee as required under law, since plaintiff has to pay court fee as per the market value and not U/Sec.7(2)(b) of Karnataka Court Fees & Suits Valuation Act. On this ground also, he seeks for dismissal of the suit.
10. Heard the arguments and perused the records.
11. Having heard the arguments, my findings on the above issues are as under:-
Issue No.1: In the negative Issue No.2: In the negative Issue No.3: In the affirmative Issue No.4: In the negative Issue No.5: In the negative Addl. Issue No.1: In the affirmative Issue No.6: As per final order, for the following:-
REASONS
12. Issue No.1:- It is the definite case of the plaintiff that, Sy.No.21/2 of Basavanapura Village consisting of 6 acres 17 guntas is fallen to the share of mother of the plaintiff Smt. 20 O.S.No.7230/2009 Sunandamma under a compromise decree dated 23.04.1972 in O.S.No.1/1967. Of course, this is not disputed fact here. His further contention is that, mother of the plaintiff, along with other persons including the plaintiff has executed GPA dated 16.11.1988, which is produced at Ex.P.1 in favour of defendant No.1 for the purpose of formation of the layout and it is also not in dispute. The further contention of the plaintiff is that, Sunandamma has retained 17 guntas of land in Sy.No.21/2 of Basavanapura Village out of 6 acres 17 guntas and that is also not in dispute before Court. It is further contended by the plaintiff that, Smt. Sunandamma, who is none other than the mother of the plaintiff has executed a registered gift deed dated 10.06.2005, which is produced at Ex.P.2 gifting 8½ guntas of land in Sy.No.21/2 of Basavanapura Village, out of the 17 guntas of land which she retained after executing Ex.P.1 GPA in favour of defendant No.1. The plaintiff has categorically contended that, suit property, i.e., 1½ guntas of land is part and parcel of the land gifted to him by his mother under Ex.P.2. The same has been encroached by the defendants. The defendant No.1 on the 21 O.S.No.7230/2009 guise of power of attorney i.e., Ex.P.1 has executed 2 registered sale deeds dated 01.09.1992 in favour of defendants No.2 to 4. He further contended that, he filed a suit in O.S.No.26741/2009 against the defendant No.5 herein and one Gopala Reddy. In that suit, I.A.Nos.1 to 3 were dismissed and hence the present suit is filed for comprehensive reliefs.
13. In the present suit the reliefs claimed by the plaintiff is to declare the sale deeds executed by defendant No.1 in favour of defendants No.2 to 4 dated 01.09.1992 are not binding on the plaintiff and for possession of the suit schedule property. In the light of these pleadings, we have to consider the sale deeds dated 01.09.1992 executed by defendant No.1 in favour of defendants No.2 to 4 are binding or not.
14. It is undisputed fact that, Smt. Sunandamma along with Jalajakshi, Shylaja, Somanatha Reddy, Manjulamma, Sridhara Reddy (plaintiff) and Shashidhara Reddy have executed GPA dated 16.11.1988 as per Ex.P.1 in favour of defendant No.1 for the purpose of formation of the layout in Sy.No.21/2 of 22 O.S.No.7230/2009 Basavanapura Village measuring 6 acres and the sale deeds 01.09.1992 have been executed by defendant No.1 on the basis of Ex.P.1 GPA. So it is nothing but sale deeds executed by plaintiff along with his mother and others in favour of defendants No.2 to 4, because that is act done by GPA holder as an agent on behalf of principal. Here we have to consider that after Sy.No.21/2 of Basavanaura Village is fallen to the share of Smt. Sunandamma, there was no partition between the family members of Sunandamma. Along with Sunandamma, other persons have executed the GPA only for the purpose of avoiding disputes or legal complications. As on the date of execution of GPA, i.e., Ex.P.1, except Sunandamma, other persons including plaintiff were not having any right and their signature is obtained only for the purpose of avoiding complications. When GPA holder of the principal on 01.09.1992 as an agent exercised the power, it is nothing but sale deed executed by Sunandamma herself. Now the plaintiff claims the sale deed dated 01.09.1992, i.e., Ex.P.9 is not binding on him. But title to 8½ guntas in Sy.No.21/2 is passed on to the plaintiff by virtue of the gift deed dated 23 O.S.No.7230/2009 10.06.2005, that means to say on 01.09.1992, the plaintiff was not having title over 8½ guntas or 17 guntas, which is retained by Sunandamma. Said Sunandamma never questioned the execution of the sale deeds dated 01.09.1992 by the defendant No.1 in favour of defendants No.2 to 4 and the plaintiff who has acquired title by virtue of Ex.P.2 only after Ex.P.9, because there is a long gap of 13 years between sale deed dated 01.09.1992 and gift deed dated 10.06.2005. As on the date of Ex.P.9, plaintiff was not having any title over the suit property. When Sunandamma herself has not challenged Ex.P.9, plaintiff has no locus standi to challenge the same. Because, Sunandamma was alone owner of Sy.No.21/2 as on the date of execution of Ex.P.9 and Ex.P.9 has been executed by virtue of GPA executed by Sunandamma and others. Sunandamma being principal has not challenged the act done by her power of attorney holder/agent, it means she has ratified the act of her GPA holder, i.e., defendant No.1 impliedly. In this regard Section 197 of Contract Act is very much relevant, which is reproduced under:
24 O.S.No.7230/2009
"197. Ratification may be expressed or implied.-- Ratification may be expressed or may be implied in the conduct of the person on whose behalf the acts are done."
15. Apart from these, plaintiff has to make out his case independently on his own legs and he should not depend upon the weakness of other side. When the plaintiff claims, he has acquired title over 8½ guntas out of 17 guntas retained by Sunandamma in Sy.No.21/2 of Basavanapura Village after execution of GPA as per Ex.P.1 for 6 acres, it is very important to consider the boundaries mentioned in Ex.P.2. As per Ex.P.2 the boundaries to 8½ guntas of Sy.No.21/2 is towards East by Road, West by High Tension electricity poles, North by private property and South by remaining portion of the same property. After execution of Ex.P.2, a rectification deed dated 10.08.2009 that means after lapse of 4 years Ex.P.3 is executed by rectifying the boundaries of Ex.P.2. As per rectification deed, boundaries of Ex.P.2 was corrected and as per the rectification deed the boundaries mentioned to 8½ guntas of Sy.No.21/2 of 25 O.S.No.7230/2009 Basavanapura village is towards East by road, West by Sri Sriramulu Shetty property, North by property belongs to Annayyappa and South by property of Shashibhushana Reddy. At the same time, it is very much important to consider the boundaries of the schedule mentioned in the suit property, towards East by remaining property in Sy.No.21/2, West by property bearing Sy.No.21/9, North by property bearing Sy.No.1 and 22 and South by remaining property belonging to plaintiff in Sy.No.21/2.
16. It is undisputed fact between parties that after execution of Ex.P.1, Smt. Sunandamma has retained 17 guntas of land towards western side of 6 acres of land, which is evidenced in the schedule of Ex.P.1. The boundaries mentioned to 6 acres of land in Ex.P.1 is towards East by private property, West by remaining property i.e., 17 guntas of land, North by Annayappa'a land and South by Chalapathiraju's land. And if we compare the boundaries of Ex.P.1, Ex.P.2 and Ex.P.3, and suit schedule property it is very much clear that towards east of 8½ guntas 26 O.S.No.7230/2009 of land there is a road. Toward east of the gift deed means 6 acres of land, which is given to defendant No.1 by executing GPA. So claim of the plaintiff that 1 ½ guntas of land is encroached by the defendants cannot be accepted, because there is a road in between the property gifted to him and 6 acres of land developed as layout. Apart from these, plaintiff himself is not clear about his claim or case, because at one stretch he says that suit property which is part and parcel of the gift deed is encroached by the defendants and at the same time he claims in para 6 of the plaint as:
"The plaintiff submits that though 1st defendant had no authority or power to deal with any portion of
17 guntas of land retained by Sunandamma, yet in the guise of exercising the power under the power of attorney relating to the 6 acres of land the 1st defendant purports to convey the suit schedule property in favour of defendants 2 to 4 under two registered sale deeds one registered on 01.09.1992 and another one is dated 01.09.1992."
27 O.S.No.7230/2009So the plaintiff himself is not clear whether the property, i.e., suit property is being encroached or same is sold by defendant No.1 und the guise of GPA. Apart from these, he himself has pleaded in para 4 of the plaint last 2 lines as:
"The plaintiff has been put in exclusive possession of said 8 and half guntas of land gifted to him."
When he claims that he has been put in possession of 8 ½ guntas of land, he never pleaded that suit property is encroached by the defendants. It is mentioned that "the cause of action for the suit arose on 23.07.2009 when the defendant No.5 tried to put up construction and subsequently when the defendant filed his written statement, is not acceptable one. The plaintiff must say when the suit property is encroached with particulars. Apart from all these things, it is very very important to consider the findings given in O.S.No.26741/2009 by the XIII Addl. City Civil Judge, Mayo hall Unit, CCH-22 while passing common orders on I.A.No.1 to 3, which is produced as per Ex.D.48. At para 8 it is observed as under:
28 O.S.No.7230/2009
"Therefore if the defendants have made any encroachment it must be at site No.9 and not on the property retained by Sunanadamma and her family members, which lies on the southern side of site No.9. Therefore the contention of the plaintiff that, defendant No.1 is trying to encroach upon the suit schedule property and tried to put up construction, has no merits."
Hon'ble XIII Addl. City Civil Judge after elaborate discussion has dismissed I.A.Nos.1 to 3 and plaintiff has not challenged the orders or findings given by the said Court in the said suit while passing orders on I.A.Nos.1 to 3 and the said order has attained finality, because nobody has challenged the said order. The present suit filed by the plaintiff with the same contention and for different reliefs of declaration and possession cannot be accepted without there being a challenge to the finding given by the said Court in the said order. The plaintiff himself is not clear whether the defendants have encroached the property or they are in possession of the suit property by virtue of the sale deed executed by defendant No.1, which is not questioned by 29 O.S.No.7230/2009 Sunanandamma. Hence I am of the humble opinion that plaintiff has not made out grounds to hold that he is owner of the suit property. Hence issue No.1 is held in the 'negative.'
17. Issue No.2:- Plaintiff claims that suit property is part and parcel of 8½ guntas of land, which he acquired by way of gift deed as per Ex.P.2 and also rectification deed as per Ex.P.3. The boundaries mentioned to Ex.P.1, to 6 acres of land is towards east -private property, west - remaining portion of the same property, north - property of Annayyappa and south - Chalapathiraju's property. The boundaries mentioned in Ex.P.2 dated 10.06.2004 for 8½ guntas is towards east - road, west - high tension electricity poles, north - private property and south- remaining portion of the same property. In Ex.P.3, i.e., rectification deed dated 10.08.2009, the boundaries of the gift deed i.e., Ex.P.2 is rectified towards east- road, west - property belongs to Sriramulu Shetty, north - property belongs to Annayyappa and south - Shashibushana Reddy's property. But whereas for 1½ guntas, i.e., suit schedule property, he has 30 O.S.No.7230/2009 mentioned towards east by remaining property in Sy.No.21/2, west by property bearing Sy.No.21/9, north by property bearing Sy.No.15 and 22 and south by 7 guntas of land in Sy.No.21/2.
18. If we compare all the boundaries of the Ex.P.1, P.2, P.3 and suit schedule, there is clear cut difference in the boundaries and towards east of 8½ guntas, i.e., Ex.P.2, there is a road and even in the rectification deed also the same thing was retained. Towards east means 6 acres of land developed by defendant No.1 under Ex.P.1. When there is a road in between 6 acres of land and 17 guntas of land (8½ guntas of plaintiff), it cannot be said that defendants have encroached suit property, because it is not the case of the plaintiff that there is a road in between 17 guntas and 6 acres and road has been encroached. Apart from these, except the self serving sketch attached to the plaint, no other independent documents have been produced by the plaintiff. Even otherwise the material on record is very clear that in between 6 acres and 8 ½ guntas of and there is road. So for these discussions, issue No2 is held in the 'negative'. 31 O.S.No.7230/2009
19. Issue No.3:- Though issue No.3 is framed with respect to written statement schedule property, there is no written statement schedule in the written statement filed by the defendants. But however, it is clear that which the plaintiff claims 1½ guntas is disputed land. For this as already discussed, there is a road in between 6 acres of land and 17 guntas of land which is retained by Sunandamma and even plaintiff's documents speaks that toward east of the gift deed property, there is a road. Apart from these, in O.S.No.26741/2009 while disposing I.A.Nos.1 to 3, Hon'ble Court has already held that "if at all there is encroachment, that is with respect to site No.9" and said finding has attained finality and the same is not challenged. Such being the case, we can safely hold that which the plaintiff claims as encroached portion is part and parcel of 6 acres of land in Sy.No.21/2. Hence this issue is held in 'affirmative'.
20. Issue No.4:- Admittedly, the suit property is situated within BBMP jurisdiction. When the property is situating within the limits of any Corporation, Municipality, court fee is to be paid 32 O.S.No.7230/2009 on the market value. In this regard the decisions relied upon by the learned counsel for defendants reported in ILR 2005 KAR 60 (J.M. Narayana and others vs. Corporation of the City of Bangalore, by its Commissioner Office, Bangalore and others), 2016 (1) KCCR 773 (Gowramma and others vs. P.Lakshminarayana) and AIR 2015 KARNATAKA 139 (Smt. Vijayalakshmi vs. Smt. Ugama Bai and another) are aptly applicable to the facts and circumstances of the case. Because the plaintiff has paid the court fee by valuing the suit U/Sec.7(2)(a) of Karnataka Court Fees & Suits Valuation Act, by holding that property stands in the agricultural status. But when the property is within the BBMP limits, the plaintiff should have valued the suit on the basis of market value. But the court fee paid at Rs.215/- by valuing U/Sec.7(2)(a) is not acceptable one. Hence court fee paid is insufficient and this issue is answered in the 'negative'.
21. Additional Issue No.1:- The defendants have produced the sale deeds as per Ex.D.51 to D.58. In view of the 33 O.S.No.7230/2009 sale deeds produced at Ex.D.51 to D.58, it can be safely hold that defendant Nos.6 to 8 and 10 to 15 are owners of the flat bearing Nos.303, 203, 102, 202, 201, 301, 302. Hence this additional issue is answered in the 'affirmative'.
22. Issue No.5:- When the plaintiff has failed to prove his title over the suit schedule property and he is not clear whether defendants have encroached the property or defendant No.1 has wrongly sold the property to other defendants, he is not entitled for any reliefs. Hence this issue is held in the 'negative'.
23. The counsel for the plaintiff has relied upon the decision reported in AIR 1965 Supreme Court 1812 (R.S. Maddanappa (deceased) after him by his legal representatives vs. Chandramma and another). This decision is not applicable to the facts on hand, because in O.S.No.26741/2009 itself the Court has given finding that if there is any encroachment is only with respect to site No.9 and not on the property retained by Sunandamma measuring 17 guntas. 34 O.S.No.7230/2009
Another decision reported in AIR 1990 Kerala 112 (Raman Ittiyathi and others vs. Pappy Bhaskaran and others). This is also on the same line and this decision is also not applicable to the facts of the case on hand.
Another decision is reported in AIR 1970 Allahabad 648 (Mohd. Ismail vs. Ashiq Husai). It is also not applicable to the facts of the case on hand, because it is with respect to construction made wrongly in some others property. Here in this case title is not at all proved.
Another decision reported in AIR 1967 Supreme Court 1793 (Rentala Lachaiah and others vs. Chimmapudi Subrahmanyam) wherein it is held "Her possession would be that of trespasser". Here plaintiff himself is not clear whether the property is encroached or the property is wrongly sold by defendant No.1 on the guise of GPA. Hence this decision is not applicable to the facts of the case on hand.
Another decision reported in AIR 1959 Bombay 475 (Krishnaji Pandharinath v. Anusayabai and another) is with 35 O.S.No.7230/2009 respect to Section 52 of T.P. Act. But the said decision would be applicable if the plaintiff was able to prove title over the property. But here in this case plaintiff has failed to prove his title over the suit property. Hence this decision is not applicable to the case on hand.
Another decision reported in 2013 (1) KCCR 615 (SC) (Gian Chand and Brothers and another vs. Rattan Lal @ Rattan Singh) is with respect to denial. Of course denial must be specific and it should not be evasive and general. But here in this case, plaintiff who has not challenged the common orders on I.A.Nos.1 to 3 passed in O.S.No.26741/2009 by XIII Addl. City Civil Judge - CCH-22, this decision is not applicable to the facts on hand.
The other decisions relied upon by the counsel for the plaintiff with respect to pleading are also not applicable to the facts of the case on hand.
24. Issue No.6:- In view of my findings on the above issues, I proceed to pass the following:-
36 O.S.No.7230/2009
ORDER The suit of the plaintiff is dismissed.
No order as to costs.
Draw a decree accordingly.
(Dictated to the Stenographer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 1st day of June, 2019.) (SATHISHA L.P.) XII ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY SCHEDULE All the piece and parcel of the property measuring 1½ guntas in Sy.No.21/2 situated at Basavanapura Village, K.R.Puram Hobli, Bengaluru South Taluk, now Bengaluru East Taluk which is agricultural in character and the same is delineated by letters BXYF in the suit sketch produced along with the plaint and bounded on:
East by: Remaining property in Sy.No.21/2 West by: Property bearing Sy.No.21/9 North by: Property bearing Sy.No.15 and 22 South by: Remaining property belonging to plaintiff in Sy.No.2/2 measuring 7 guntas 37 O.S.No.7230/2009 ANNEXURE I. List of witnesses examined on behalf of: (a) Plaintiff' side : P.W.1: H.K. Sridhara Reddy P.W.2: Reddappa V. P.W.3: Sudhakar K.S. (b) Defendant's side : D.W.1: G. Arvind D.W.2: C.P.Selvaraj
II. List of documents exhibited on behalf of :
(a) Plaintiff' side :
Ex.P.1: Certified copy of general power of attorney Ex.P.2: Certified copy of gift deed Ex.P.3: Certified copy of rectification deed Ex.P.4 to 5 RTCs P.8:
Ex.P.9: Certified copy of sale deed
Ex.P.10: Certified copy of sale deed
Ex.P.11: Note sheet of BBMP
Ex.P.12: Original sanctioned plan
Ex.P.12(a) Certified copy of Ex.P.12.
Ex.P.13: Deposition of C.P.Selvaraj in
O.S.No.7571/2011
38 O.S.No.7230/2009
(b) Defendants side :
Ex.D.1 and Two sale deeds dated 01.09.2992
D.2:
Ex.D.3: Sale deed dated 06.01.2008
Ex.D.4 and Khatha issued by CMC, K.R. Puram
D.5:
Ex.D.6 and Two receipts of payment of betterment
D.7: charges
Ex.D.8 to 8 tax paid receipts
D.15:
Ex.D.16 to Four tax paid endorsements
D.19:
Ex.D.20 and General power of attorneys
D.21:
Ex.D.22 to Three khatha certificates
D.24:
Ex.D.25 and Two Uttara Patra
D.26:
Ex.D.27 to Three house assessment registers
D.29:
Ex.D.30: Licence dated 10.06.2008
Ex.D.31: Sanctioned plan
Ex.D.32 to Three electricity bills
D.34:
Ex.D.35: Certified copy of layout plan
Ex.D.36: Borewell bill 30.06.2009
Ex.D.37: Official memorandum issued by BESCOM
Ex.D.38: Receipt issued by BESCOM
Ex.D.39 to Four photographs and CD
D.43:
Ex.D.44 to Certified copy of plaint, I.A. Nos.1 to 33
D.48: with affidavits and common order on
I.A.Nos.1 to 3 passed in O.S.26741/2009
Ex.D.49: Certified copy of memo dated 18.09.2010
filed in O.S.No.26741/2009
Ex.D.50: Certified copy of entire order sheet in
39 O.S.No.7230/2009
O.S.No.26741/2009
Ex.D.51 to Certified copies of sale deeds (8 in D.58: numbers) Ex.D.59 and Certified copy of judgment and decree D.60: passed in O.S.No.7571/2011 Ex.D.61: Certified copy of general power of attorney executed by Sunandamma Ex.D.62: General power of attorney Ex.D.63: 9 BESCOM bills Ex.D.64: 5 Gas bills Ex.D.65: 7 Tax paid receipts Ex.D.66: Certified copy of sale deed XII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.