Bangalore District Court
Sri V Jagannath vs Smt. Vijayalaxmi on 30 January, 2020
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 30th day of January, 2020.
PRESENT: SRI. SATHISHA L.P., B.A., LL.B.,
XII ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH.No.27), BENGALURU
O.S.No.8759/2012
PLAINTIFF : Sri V Jagannath,
S/o Late Vellusamy,
Aged about 58 years,
R/a No.53, Lavanya Nivas,
2nd Main, 3rd Cross,
BHEL Mini Colony,
Pipeline Road, T. Dasarahalli,
Bengaluru-57.
(By Sri H. Nagaraj, Advocate)
VS.
DEFENDANT : Smt. Vijayalaxmi,
W/o Murthy,
Aged about 50 years
R/a No.1603, 2nd Cross,
Pipeline Road,
Prashanth Nagar,
T. Dasarahalli,
2 O.S.No.8759/2012
Bengaluru-560057.
(By Sri V.P., Advocate)
Date of Institution of the suit : 11.12.2012
Nature of the suit : Suit for Declaration
Date of commencement of : 03.08.2018
recording of the evidence
Date on which the Judgment was : 30.01.2020
pronounced
Total Duration Years Months Days
07 01 19
(SATHISHA L.P.)
XII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
This suit is filed by the plaintiff for declaration, declaring that the plaintiff is the absolute owner of the schedule property in view of the gift deed dated 06.05.2004, to grant such other reliefs.
2. The brief facts of the plaintiff's case is that, suit schedule property belongs to the mother of the plaintiff Smt. Kaliyamma, plaintiff purchased schedule property in the name of 3 O.S.No.8759/2012 his mother through a registered sale deed dated 04.02.1979 from T.V.Lakshminarayana for a valuable sale consideration amount.
The khatha of the schedule property changed in the name of the plaintiff's mother after its purchase, the plaintiff regularly paying the house tax to the panchayath and he obtained the license from the Panchayath during the time of its purchase and constricted asbestos sheet house upon it in the entire site measuring 15 x 40 feet. The plaintiff and his mother are residing in the schedule property as its owner and paid the house taxes regularly. The plaintiff constructed totally three small houses and he is residing along with his mother in one of the small house and let out other two small houses to the tenants. The plaintiff's mother in her life time collecting the rents from the two houses.
The plaintiff's father left the house of the plaintiff during the childhood of his three children's, they are the plaintiff, the defendant and one late Kannamma. All of them are in the care and custody of their mother performed the marriage of and they are in the childhood along with their mother. The plaintiff and 4 O.S.No.8759/2012 his mother performed the marriage of his two sisters spending of his hard earned money. The defendant being well off having a own house collecting the rents out of her own houses. She is residing along with her husband after her marriage, so also the second sister of the plaintiff also residing with her husband and she is no more and her one daughter having their own house. The defendant in order to get their house to herself, she took her into her custody. The defendant let out plaintiff's second sister's house for rent and she herself collecting the rents.
The defendant is not satisfied with her own houses as well as house of the plaintiff's last sister Kannamma with ill motive of seeing her mother during his mother's life time of old age not left the house belongs to the plaintiff inspite of the request made by her mother and her brother. The defendant abused to the plaintiff and her mother during the lifetime of plaintiff's mother with filthy language. The plaintiff tolerating all the abuses meted out to him and his mother during the said period. The plaintiff married during the said period not tolerated such untoward 5 O.S.No.8759/2012 incidents meted out to him in front of his neighbours took rented house and residing with his family.
The mother of the plaintiff not left her own house since she is collecting the rents from other two houses. The plaintiff's mother during her lifetime paying the house taxes and she is in peaceful possession and enjoyment of the houses built in the above property. The defendant not left the house inspite of his mother's request, she left with no other alternative but to approach the Hon'ble Court for getting evicted the defendant from the house.
During the lifetime of plaintiff's mother she filed a suit for ejectment against defendant in order to accommodate the premises to the plaintiff. In the suit filed by the plaintiff's mother, the defendant has set up a plea that she had paid a sum of Rs.50,000/- to her mother and residing in the premises. The suit filed by the mother of the plaintiff in O.S.No.7655/2003 is dismissed on 10.03.2005 on the ground that there is no relationship of landlord and tenant arises since the defendant is 6 O.S.No.8759/2012 the daughter. The notice to quit and deliver the position of the property by the defendant is not in accordance with the provision of law. The defendant is in permissive possession or not of the property. Which provisions under the Karnataka Court Fees and Suits Valuation Act, the court fee assessed is not mentioned in the suit.
Plaintiff further submits that, the relationship of his mother with the defendant is not cordial after contesting the suit filed by the plaintiffs mother, the plaintiff's mother came to know the ill motive behind the defendant for squandering away the family property and the position of her son who is living with his family in a rented house paying the rents inspite of having his own house. The conduct of the defendant made to the mother of the plaintiff to transfer the property to her own son through a registered gift deed dated 06.05.2004. The plaintiff accepted the gift made by his mother during her sound disposing state of mind and in her good health she was prudent and wise as on the date of executing the gift. The mother of the plaintiff voluntarily 7 O.S.No.8759/2012 executed the gift deed in favour of the plaintiff by registered gift deed. The instrument of gift is duly executed and handed over to the plaintiff and the plaintiff accepted the gift and residing with his mother in the schedule property.
The khatha of the schedule property changed in the name of the donee after the gift. The donee is playing the house tax to the municipal council T Dasarahalli. The assessment of tax and tax paid to the Bangalore Mahanagara Palike by the plaintiff is produced along with the suit. The encumbrance in the name of the plaintiff is also produced along with the suit. The mother of the plaintiff passed away on 20.11.2005.
The defendant filed a suit for injunction against the plaintiff in O.S.No.6884/2004, as she is in possession and enjoyment of the property enjoying the property as its owner. The said suit contested by the plaintiff and he set up a case of gift deed executed by his mother to him and thereafter khatha of the schedule property changed in his name and he is paying regularly the house tax to the BBMP. The suit filed by the defendant 8 O.S.No.8759/2012 decreed on 31.05.2012 holding that as per the order passed in previous suit filed by her mother in O.S.No.7655/2003, the defendant is in possession of the property and the plaintiff has to file a suit under the appropriate provisions and redress his remedy elsewhere.
The plaintiff feeling aggrieved by the judgment and decree passed in O.S.No.6884/2008 dated 31.05.2012, filed appeal before the Hon'ble High Court of Karnataka, which is pending for consideration. The defendant is a daughter to the mother of the plaintiff set up a case of ownership of the property. In the suit filed by her mother, the defendant has set up plea that she paid a sum of Rs.50,000/- for retaining in possession of the property and in O.S.No.6884/2008, she set up a plea of Will alleged to be executed by her mother on 30.07.2005. The registered gift deed in favour of the plaintiff executed by his mother on 06.05.2004 she lost the ownership of the schedule property and she has no right title and interest again to execute the Will in favour of the defendant. The alleged Will has not been executed by the 9 O.S.No.8759/2012 plaintiff's mother in favour of the defendant. The photo and signature are not of plaintiff's mother. It is unbelievable when plaintiff's mother herself filed a suit against the defendant in O.S.No.7655/2003 for ejectment of the defendant from the schedule property and she herself out of love and affection executed a gift deed in favour of the plaintiff, then the Will came into existence under the suspicious circumstances. The mother of the plaintiff had no testamentary capacity on 30.07.2005 to execute the alleged Will. The genuineness of the signature and photo of the testator of the alleged Will are fabricated by the defendant. Mother of the plaintiff became extremely weak in her body and mind she was unable to move about from her bed and she was incapable of understanding her affairs and forming any rationale judgment concerning them. She was totally unconscious and could not hear or talk to anyone for a period of six months before her death. The alleged Will dated 30.07.2005 produced by the defendant in O.S.No.6884/2008 after filing the appeal in the Hon'ble High Court of Karnataka questioned by the plaintiff in the suit.
10 O.S.No.8759/2012
The defendant after noticing the gift deed executed by her mother behind back of the plaintiff, began to transact with others for selling away the schedule property showing the alleged Will which caste a cloud on the title of the plaintiff and created third- party risks if it is left outstanding. The defendant right from the passing of the judgment and decree in 0S.6884/2008 dated 31.05.2012 showing both the judgments and decrees as well as alleged Will, began to sold the away the schedule property and to lost the right of the plaintiff over the property. The plaintiff came to know the said illegal transactions with others and he is filing the above suit seeking cancellation of the alleged Will and to declare that Will was never executed by his mother. The said Will is to be adjudged as void and cancelled.
With these facts, plaintiff seeks to decree the suit as prayed for.
3. After the service of the summons in the suit, the defendant has appeared before the Court and has filed the written statement by denying and disputing the plaint averments 11 O.S.No.8759/2012 wherein she has contended that, plaintiff is not in possession of the suit property and as such the suit of the plaintiff for the declaration is not maintainable, as the same defeats Section 34 of the Specific Relief Act and Order 2 Rule 2 of CPC, the court fee paid on the plaint is not sufficient and the suit is not properly valued as per the provisions of the Karnataka Court Fee and Suits Valuation Act and hence suit is to be dismissed. That plaintiff had filed earlier suit as PA holder of Kaliyamma, the mother in O.S.No.7655/2003 in which the plaintiff himself is examined as P.W.1 on 03.09.2004 and in the said suit plaintiff has suppressed the fact and now has filed the present suit on the basis of the suppressed facts setting up the gift deed which is though ought to have disclosed in the said suit O.S.No7655/2003 has not done so and such gift deed is the creation of the plaintiff by affixing the photograph on the same. It is specifically averred that the office of the Sub-Registrar is computerized from 01.04.2004 and photographs are taken from computer itself, the alleged gift is the fraudulent creation of the plaintiff as such the suit of the plaintiff is liable to be dismissed, suit property being acquired by the 12 O.S.No.8759/2012 mother of the defendant Smt. Kaliyamma under the registered sale deed dated 04.02.1979, the mother of the defendant has taken Rs.50,000/- in all from the defendant for the purchase and construction of house building and the defendant with her family members along with her mother were residing in the suit schedule property, and after the demise of the mother, the defendant along with her family members are residing in the suit schedule property. When the facts stood so the plaintiff claiming to be power of attorney holder of the mother has filed suit O.S.No.7655/2003 on 23.10.2003 against this defendant for eviction and for possession of the suit schedule property, in the said suit the plaintiff himself examined as P.W.1 on 03.09.2004, without any whisper of alleged gift deed on the basis of which the present suit is filed and after the contest, the said suit came to be dismissed. During the life time of Kaliyamma the mother of the defendant herein has bequeathed the schedule property in favour of the plaintiff under registered Will dated 30.07.2005. That the mother of the plaintiff is died on 20.11.2005, the Will dated 30.07.2005 being the last Will the plaintiff has succeeded to the 13 O.S.No.8759/2012 suit property as legatee under the Will of deceased Smt. Kaliyamma, the plaintiff is already in possession of the suit property, after the death of mother of the defendant being in possession of the suit property and has approached the jurisdictional local body on 04.07.2006 for payment of the tax for entering her name in the khatha register and the same is entered in her name, the schedule property has now come in the jurisdiction of the BBMP and taxes to it are paid by the defendant, the schedule house is provided with the electricity supply through the meter bearing RR No PNLG5791, after the change of khatha defendant has also got the electricity meter transferred in her name, the defendant is in actual possession and enjoyment of the schedule property as the owner, when the fact stood so, the plaintiff in the last week of September 2008 has come near the suit schedule house and talked with this defendant that he wants the suit schedule house, but the defendant has told him about the Will and of her ownership and hearing the same the plaintiff became enraged and started shouting at the defendant and neighbours and family intervened, then the plaintiff went away 14 O.S.No.8759/2012 threatening the defendant, thus the defendant has filed the suit in O.S.6884/2008 which after contest is decreed in favour of the defendant, and also filed the additional written statement and seeks to dismiss the suit.
4. On the basis of the above pleadings, my predecessor has framed the following issues on 23.07.2014:-
1. Whether the plaintiff proves, that, he is the absolute owner of the suit schedule property by virtue of the gift deed dated 06/05/2004 alleged to have been executed by his mother in his favour?
2. Whether the defendant proves that, her mother Smt. Kaliyamma has executed the Will dated 30/07/2005 in respect of the suit schedule property bequeathing the same in favour of the defendant?
3. Whether the defendant proves that, the suit is hit by doctrine of Res-judicata?
4. Whether the suit is barred by limitation?
5. Whether the plaintiff is entitled for the relief sought for?
6. What order or decree?
Following Additional issues are framed on 18.06.2016 15 O.S.No.8759/2012
1. Whether the plaintiff proves that he is in possession of suit schedule property?
2. Whether the plaintiff has properly valued the suit and court fee paid is sufficient?
3. What order?
5. To substantiate the case of the plaintiff, he himself has examined as P.W.1 and Ex.P.1 to P.22 are marked. Ex.P.1 is certified copy of the sale deed dated 04.07.1979, Ex.P.2 is the ration card, Ex.P.3 and P.4 are encumbrance certificates, Ex.P.5 is GPA, Ex.P.6 is gift deed, Ex.P.7 is death certificate of Kaliyamma, Ex.P.8 is tax paid receipt, Ex.P.9 is khatha certificate, Ex.P.10 to P.14 and P.14 are tax paid receipts, Ex.P.15 is certified copy of judgment in O.S.No.7655/2003, Ex.P.16 is certified copy of judgment in O.S.No.6884/2008, Ex.P.17 is passport, Ex.P.18 is gift deed dated 06.05.2004, Ex.P.19 and P.20 are encumbrance certificates, Ex.P.21 is deposition of Vijayalakshmi in O.S.No.7655/2003, Ex.P.22 is deposition of Vijayalakshmi in O.S.No.6884/2008. Apart from P.W.1, witness by name K. Muralidhar, Advocate is examined as P.W.2 and Ex.P.6(a) is marked.
16 O.S.No.8759/2012
From defendant side, defendant herself examined as D.W.1 and Ex.D.1 to D.18 are marked. Ex.D.1 is deposition of Jagannath in O.S.No.6884/2008, Ex.D.2 and D.3 are encumbrance certificates, Ex.D.4 is receipt, Ex.D.5 is original sale deed dated of Kaliyamma, Ex.D.6 is certified copy of judgment and decree in O.S.No.7655/2003, Ex.D.7 is original Will dated 30.07.2005, Ex.D.8 is death certificate of Kaliyamma, Ex.D.9 is khatha certificate, Ex.D.10 to D.13 are tax paid receipts, Ex.D.14 is BESCOM receipt, Ex.D.15 and D.16 are gas bills, Ex.D.17 is judgment and decree in O.S.No.6884/2008, Ex.D.18 is ration card.
6. Learned counsel for plaintiff vehemently argued that the suit schedule property is falls to the title of the plaintiff by virtue of the gift deed, which is produced at Ex.P.6 and on the basis of the gift deed, khatha is transferred and plaintiff is absolute owner of the suit property and defendant has no manner of right and title over the same and the defendant who claims the suit property on the basis of the Will which is produced at 17 O.S.No.8759/2012 Ex.D.7 is not proved in accordance with law and also as on the date of execution of Ex.D.7 Kaliyamma was not the owner of the suit property, since she has already executed gift deed, with these contentions he seeks to decree the suit.
7. On the other hand, learned counsel for defendant vehemently contended that suit of the plaintiff itself is not maintainable, since plaintiff has sought for the relief of declaration without seeking the relief of possession and moreover the property is self acquired property of Kaliyamma and she has executed the registered Will in favour of the defendant and earlier suits clearly establishes that defendant is in possession of the property and without seeking the relief of possession, present suit is not maintainable and plaintiff is claiming the property on the basis of the gift deed dated 06.05.2004, which is at Ex.P.6 is a fabricated document, no title is passed on to the plaintiff through Ex.P.6 and he has also relied upon the decisions reported in (2012) 8 Supreme Court Cases 148, 2013 AIR SCW 3063, and AIR 2007 SC 1499 and thereby seeks to dismiss the suit. 18 O.S.No.8759/2012
8. Having heard the arguments and perused the records, my answers to the above issues are as under:-
Issue No.1: In the affirmative Issue No.2: In the negative Issue No.3: In the negative Issue No.4: In the negative Issue No.5: In the negative Addl. Issue No.1: In the negative Addl. Issue No.2: Does not survive for consideration. Issue No.6 & Addl.
Issue No.3 : As per final order,
for the following:-
REASONS
9. Issue No.1:- The definite case of the plaintiff is
that, suit property is acquired by his mother under a registered sale deed dated 04.02.1979 and the same is gifted to him by executing registered gift deed dated 06.05.2004 by Kaliyamma, who is none other than his mother.
10. On the other hand, the defendant who is none other than sister of the plaintiff also claims that she is owner and in 19 O.S.No.8759/2012 possession of the property by virtue of the registered Will executed by her mother Smt. Kaliyamma as per Ex.D.7.
11. From the pleadings and documents, it is clear that Kaliyamma has purchased the suit schedule property under Ex.D.5 and certified copy of the same is produced at Ex.P.1. As per Ex.D.5, Smt Kaliyamma has purchased the suit schedule property from one T.V. Lakshminarayana under the registered sale deed dated 04.02.1979. The ownership of Kaliyamma is not disputed by either of the parties, because Kaliyamma is none other than mother of both the parties. At the same time, plaintiff claims that he is owner by virtue of the registered gift deed produced at Ex.P.6 and the defendant claims ownership over the suit property by virtue of Ex.D.7 the registered Will. Since the property is self acquired property of Kaliyamma, she was having every right to transfer the same according to her wish. Now there are two documents before Court and this Court has to adjudicate which is valid document and who has acquired valid title through Ex.P.6 or Ex.D.7.20 O.S.No.8759/2012
12. Ex.P.6 is gift deed and Ex.D.7 is registered Will. Both documents require attestation as required under Section 68 of the Evidence Act. In case of gift deed, examination of attesting witness is not required unless and until the executor denies the same. On the other hand, examination of attesting witness is compulsory under Section 68 of Indian Evidence Act in case of Will.
13. Plaintiff has produced the gift deed through his evidence and marked it as Ex.P.6. On perusal of Ex.P.6, Smt. Kaliyamma has executed the registered gift deed in favour of the plaintiff gifting the suit schedule property to her son-plaintiff. To comply the requirement of Section 68 of Indian Evidence Act, plaintiff has examined P.W.2 one Mr. K. Muralidhar, who is none other than the advocate represented Kaliyamma in O.S.No.7655/2003. Hence evidence of P.W.2 plays vital role in proving Ex.P.6. In his evidence P.W.2 has categorically stated that he along with one Mr. Thimmappa, was practicing at No.322, 1st Floor, Prabath Complex, K.G. Road, Bengaluru and his 21 O.S.No.8759/2012 colleague N. Thimmappa prepared the draft and he went to Sub-
Registrar office for registration of the document, he signed as attesting witness to the said gift deed. Though P.W.2 was cross- examined at length by the other side advocate, they are not able to elicit anything from P.W.2. The contention of the defendant counsel that Ex.P.6 is a created document and forged document cannot be accepted, because P.W.2 has categorically stated that said document is registered in the office of Sub-Registrar. The counsel for defendant vehemently argued that it is a forged document and as on date of registration of Ex.P.6, office of the Sub-Registrar was computerized and photographs and LTM of the executants were taken through computer, but in Ex.P.6 the photograph is affixed and LTM is obtained on the document, but the same cannot be accepted because, though counsel during cross-examination has put several questions in this aspect to P.W.2, he has not categorically cross-examined on this point to P.W.2, who is practicing advocate and also attesting witness to Ex.P.6. Apart from that, if at all the said document is created, the defendant has not taken any steps in this regard and it is not 22 O.S.No.8759/2012 complained even to the concerned Sub-Registrar and he has not produced any single document after obtaining the same from the concerned Sub-Registrar office to show that as on the date of registration of Ex.P.6, the said office was computerized and it was not registered in the said Sub-Registrar office, because the said document is got registration number, date and everything and mere formal denial is not sufficient in this aspect.
14. Further more, the requirement of gift deed as contemplated under T.P. Act is fulfilled. The plaintiff who is beneficiary of the gift has accepted the gift as on the date of execution of the gift deed. When he has produced the document in original and when he has examined the attesting witness as required under Section 68 of Indian Evidence Act and when the document is duly registered and when the requirement of gift is fulfilled, automatically title under the gift deed transfers to the plaintiff. When the title transfers to the plaintiff, naturally he becomes owner of the suit property. Hence I am of the opinion that the plaintiff is able to prove that he is owner of the suit 23 O.S.No.8759/2012 schedule property by virtue of Ex.P.6. Hence issue No.1 is held in the 'affirmative'.
15. Issue No.2:- The defendant in this suit claims ownership over the suit property on the basis of the registered Will dated 30.07.2005 as against the registered gift deed of plaintiff which is produced at Ex.P.6. When the defendant claims ownership over the suit property on the basis of Ex.D.7, which is registered Will dated 30.07.2005, it is her bounden duty to prove the Will in accordance with Section 63 of Indian Succession Act and also Section 68 of Indian Evidence Act. Though the defendant is able to produce original registered Will through her evidence, she is not able to examine one attesting witness to comply the provision of Section 68 of Evidence Act. In the absence of examining attesting witness, it cannot be said that she has proved the Will.
16. That apart, we have to consider the date of execution of Ex.D.7, because the said document is executed on 30.07.2005. As on the date of said document, Smt. Kaliyamma was not the 24 O.S.No.8759/2012 owner of the suit property, because she has executed registered gift deed in favour of the plaintiff on 06.05.2004 as per Ex.P.6. And much more there was a suit between Smt. Kaliyamma and defendant in O.S.No.7655/2003. The same was instituted on 23.10.2003 and it is disposed on 16.03.2005. D.W.1 has categorically admitted in her cross-examination that:
"It is true to suggest that during the lifetime, my mother conducted the case against me through plaintiff by executing GPA."
The suit between the defendant and her mother clearly goes to show that there was no cordial relationship between the defendant and her mother. Such being the case, execution of Ex.D.7 by Kaliyamma in favour of defendant certainly creates some valid doubt in the mind of the Court. Coupled with non- examination of an attesting witness as required under Section 68 of Indian Evidence Act, we can safely hold that defendant has not proved issue No.2. Hence issue No.2 is held in the 'negative'. 25 O.S.No.8759/2012
17. Issue No.3:- To apply the doctrine of res-judicata, requirement of Section 11 of CPC must complete. The present suit is for declaration and whereas the previous suit instituted by Kaliyamma in O.S.No.7655/2003 was for ejectment and another suit in O.S.No.6884/2008 filed by the defendant against the plaintiff is for the relief of injunction. Hence when the nature of all the suits are different, doctrine of res-judicata cannot be applied. Hence it is answered in the 'negative'.
18. Issue No.4:- The plaintiff in para No.14 of his plaint has clearly stated that he came to know about Will which is produced at Ex.D.7 on 04.08.2010, when the same is produced in O.S.No.6884/2008. On perusal of Ex.P.22, which is deposition of the defendant herein in O.S.No.6884/2008, the same is recorded on 04.08.2010 and on the same day the Will produced in this case is marked as Ex.P.3 in that case. Since the suit is for declaration, the same is to be filed within 3 years from the date of cause of action. The present suit is filed on 11.12.2012, which is within 3 26 O.S.No.8759/2012 years from 04.08.2010. Hence the suit is within limitation and this issue is held in the 'negative'.
19. Addl. Issue No.1:- Mother of the plaintiff Smt. Kaliyamma filed O.S.No.7655/2003 for ejectment. In that suit also it is categorically contended that defendant is in possession of the suit property, but the said suit is dismissed. Another suit filed by the defendant herein against the plaintiff herein in O.S.No.6884/2008, it is categorically held that plaintiff is in possession of the suit property and there is a injunction against the plaintiff herein not to evict the defendant without due process of law. When such being the case, it cannot be held that plaintiff is in possession of the suit property. Hence it is held in the 'negative'.
20. Addl. Issue No.2:- This additional issue is framed on 18.06.2016. Subsequently on 06.03.2018 the plaintiff has filed fresh valuation slip by valuing the suit on the market value and has paid the court fee. Hence this additional issue No.2 will not survive for consideration.
27 O.S.No.8759/2012
21. Issue No.5:- Though the plaintiff has filed the suit for declaration to declare that he is absolute owner of the suit property by virtue of the gift deed, the defendant is in possession of the suit property, but he has not sought for possession of the suit property. The plaintiff must have sought for possession of the suit property, because in earlier suits in O.S.No.7655/2003 it is clearly held that defendant is in possession of the suit property and in O.S.No.6884/2008 which is filed by the defendant against the plaintiff herein for the relief on injunction, the Hon'ble Court has granted injunction against the plaintiff herein wherein it is ordered that:
"ªÁ¢AiÀÄ zÁªÉAiÀ£ÀÄß rQæ ªÀiÁqÀ¯ÁVzÉ. ¥ÀæwªÁ¢, DvÀ£À KeÉAlgÀÄ, ¸ÀºZ À ÀgÀgÀÄ, ¸ÉêÀPÀgÀÄ, ªÁ¢AiÀÄ zÁªÁ C£ÀĸÀÆa ¸ÀéwÛ£À ¸Áé¢üãÀPÉÌ CqÀZu À É GAlÄ ªÀiÁqÀzÀAvÉ ±Á±ÀévÀ ¥Àæw§AzÀsPÁYÕÉ DzÉñÀ ºÉÆgÀr¸À¯ÁVzÉ."
Prior to this while answering issue No.3, the Court has come to the conclusion that she is in settled possession of the property by holding that:
28 O.S.No.8759/2012
"¥ÀæwªÁ¢AiÀÄÄ PÁ£ÀƤ£À£ÀĸÁgÀ ¸ÀÆPÀÛ ¥ÀjºÁgÀPÁÌV zÁªÉ ºÀÆr PÁ£ÀÆ£ÀÄ ¥ÀæPÁgÀ ªÁ¢AiÀÄ£ÀÄß zÁªÁ ¸ÀéwÛ¤AzÀ ºÀÉÆgÀºÁPÀ§ºÀÄzÁVgÀÄvÀÛzÉ. DªÀgÉUÉ zÁªÁ ¸ÀéwÛ£À ¤zÀsðjvÀ ¸Áé¢üãÀzÀ°ègÀĪÀ ªÁ¢AiÀÄ ¸Áé¢üãÀªÀ£ÀÄß gÀQë¸À¨ÉÃPÁzÀzÀÄÝ £ÁåAiÀÄzÁ£ÀzÀ zÀȶ֬ÄAzÀ CUÀvÀåªÁVzÉ. ªÁ¢AiÀÄÄ ¤zÀðs jvÀ ¸Áé¢üãÀ zÀ°èzÁÝgÁzÀjÝ AzÀ, PÉÆÃjzÀAvÉ ±Á±ÀévÀ ¥Àæw§AzÀsPÁYÕÉ DzÉñÀ ¥ÀqÉAiÀÄ®Ä CºÀðjzÁÝgÉ JAzÀÄ ¤tð¬Ä¹ ¥ÀjUÀt£ÉUÉ vÉUz É ÀÄPÉÆAqÀ 3£Éà «ªÁzÁA±ÀªÀ£ÀÄß ¸ÀPÁgÁvÀäPÀªÁV GvÀÛj¹zÉÝãÉ."
Hence issued injunction against the plaintiff herein.
22. The decision relied upon by the defendant reported in (2012) 8 Supreme Court Cases 148 (Union of India vs. Ibrahim Uddin and another) wherein Hon'ble Supreme Court has held that:
"A. Specific Relief Act, 1963 - Ss.34 and 5 - Declaration - Discretion of court - Need to seek consequential relief in declaratory suit - Maintainability of title suit - Reliefs to be claimed - Suit seeking declaration of title of ownership of property, without seeking possession, when plaintiff not in possession, held, not maintainable."29 O.S.No.8759/2012
Another decision reported in 2013 AIR SCW 3063 (Venkataraja and Ors vs. Vidyane Doureradjaperumal (D) Thr Lrs. and Ors) wherein it is held that:
"Specific Relief Act (47 of 1963), S.34 Proviso - Declaratory suit without consequential relief - Tenability
-Suit by plaintiff for declaration that he is owner of suit property - And sale made to defendant was null and void -Suit property in possession of tenants who were parties to suit -Plaintiff could have claimed possession from tenants - Suit filed for declaration simpliciter - Not maintainable - Fact that plaintiff could file suit for eviction - No ground to hold suit as maintainable - Holding suit for declaration simpliciter as maintainable would defect S.34 proviso and O.2 R.2 of Civil P.C."
Another decision reported in AIR 2007 Supreme Court 1499 (Mehar Chand Das v. Lal Babu Siddique and Ors) wherein it is held that:
"(A) Specific Relief Act (47 of 1963), S.34-
Declaratory suit-No further relief claimed-Tenability-Suit to declare that parcha granted by Collector to appellant under Bihar Act was fraudulently obtained - Appellant 30 O.S.No.8759/2012 was admittedly tenant of plaintiff-respondent - He was therefore in possession - Mere suit for declaration without claiming relief of possession - Not tenable." Since the plaintiff has not sought for possession of the suit property, suit of the plaintiff is not maintainable and this issue is answered accordingly.
23. Issue No.6 and Addl. Issue No.3:- In view of my findings on the above issues, I proceed to pass the following:-
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 30th day of January, 2020.) (SATHISHA L.P.) XII ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY 31 O.S.No.8759/2012 SCHEDULE A building site No.1603 Sy.No.25 measuring to an extent of 15' x 40' situated at Prashanth Nagar, 2nd Cross, T. Dasarahally, Bengaluru-560057 which is bounded on East by: House No.1604 remaining property West by: House No.1602 site No.24 North by: Private property No.66 site South by: Road ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff' side :
P.W.1: Jagannath V
P.W.2: K. Muralidhar
(b) Defendant's side :
D.W.1: Smt. Vijayalakshmi
II. List of documents exhibited on behalf of :
(a) Plaintiff' side :
Ex.P.1: Certified copy of the sale deed dated 04.02.1979 Ex.P.2: Original ration card Ex.P.3: Encumbrance certificate Ex.P.4: Another encumbrance certificate Ex.P.5: GPA dated 16.05.2001 32 O.S.No.8759/2012 Ex.P.6: Original gift deed dated 06.05.2004 Ex.P.7: Death certificate of Kaliyamma Ex.P.8: Property tax slip Ex.P.9: Self declaration tax assessment form No.11 for the year 2003-04 and 2004-05 Ex.P.10: Property tax slip Ex.P.11: Tax paid receipt Ex.P.12: Tax paid receipt Ex.P.13: Tax paid receipt Ex.P.14: Property tax paid receipt Ex.P.15: Certified copy of judgment and decree passed in O.S.No.7655/2003 dated 16.03.2005 Ex.P.16: Certified copy of judgment and decree passed in O.S.No.6884/2008 dated 31.5.2012 Ex.P.17: Passport Ex.P.18: Certified copy of gift deed dated 06.05.2004 Ex.P.19 Encumbrance certificates & P.20 Ex.P.21: Deposition of Vijayalakshmi in O.S.No.7655/2003 Ex.P.22: Deposition of Vijayalakshmi in O.S.No.6884/2008
(b) Defendants side :
Ex.D.1: Deposition of Jagannath in
O.S.No.6884/2008
Ex.D.2 & Two encumbrance certificates
D.3:
Ex.D.4: Receipt
Ex.D.5: Original sale deed dated 04.02.1979 Ex.D.6: Certified copy of judgment and decree in 33 O.S.No.8759/2012 O.S.No.7655/2003 Ex.D.7: Original Will dated 30.07.2005 Ex.D.8: Death certificate of Kaliyamma Ex.D.9: Property register extract Ex.D.10 Tax paid receipts to D.13:
Ex.D.14: BESCOM receipt Ex.D.15 Gas bills & D.16:
Ex.D.17: Certified copy of judgment and decree in O.S.No.6884/2008 Ex.D.18 Ration card XII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.