Bangalore District Court
Smt.S.B.Rajini vs G.Raghu on 29 June, 2016
IN THE COURT OF XVIII ADDL.CITY CIVIL JUDGE,
AT BENGALURU CITY [CCH.NO.10]
Dated this day the 29th June 2016
PRESENT
SRI MUSTAFA HUSSAIN.S.A., B.A., LL.M.
XVIII Addl.City Civil Judge.
O.S.No.2390/2010
Plaintiff Smt.S.B.Rajini,
W/o V.Shivakumar,
Aged about 56 years,
R/at No.15/A, 4th Main,
10th Cros,R.K.Layout,
Padmanabhanagara,
Bangalore - 560 070.
[By Sri.R.B.S.Advocate]
/VS/
Defendants: 1.G.Raghu,
S/o LateGovindaiah,
Aged about 56 years,
R/at No.78, Akshaya,
14th Cross, MTS.Layout,
Kengeri Satellite Town,
Bangalore - 560 060.
2 OS.No.2390/2010
2. Smt.S.Rathna,
D/o C.Sadiappan,
Aged about 33 years,
R/at No.44/1 & 42, MTS.Layout,
Kengeri Satellite Town,
Bangalore - 560 060.
[By Sri.D.R., Adv., for D1 &
Sri.D.S.J., Adv. for D2.]
Date of institution of 29.5.2009
suit [Transferred from CCH-2]
Nature of the suit Declaration & Permanent
(Suit on pronote, suit Injunction
for declaration and
possession suit for
injunction, etc.
Date of the 11.09.2014
commencement of
recording of the
evidence.
Date on which the 29.06.2016
Judgment was
pronounced.
Year/s Month/s day/s
Total duration: 07 01 00
(MUSTAFA HUSSAIN.S.A.)
XVIII Addl.City Civil Judge, Bangalore.
3 OS.No.2390/2010
JUDGMENT
The plaintiff has filed this suit against the defendants for the relief of declaration that she is the absolute owner of the suit schedule property and that the sale deed dtd.5.7.2001 executed by 1st defendant in favour of 2nd defendant as null and void and for consequential relief of permanent injunction to restrain the 2nd defendant, her agents and servants from interfering with her peaceful possession and enjoyment over the suit schedule property with costs.
2. The brief and relevant facts as alleged in the plaint are as follows:
It is alleged that the Plaintiff purchased the property bearing site No.138, in Sy.No.33 of Vollagerahalli village, MTS Layout, Kengeri Hobli, Bangalore South Taluk measuring east- west 40 feet and north-south 30 feet (hereinafter referred to as suit property for the purpose of brevity and convenience) under registered sale deed dtd. 22.7.1981 and she is the absolute owner in possession of the same. It is further alleged that the 1st defendant misused her signatures on blank stamp papers and used the same as GPA and tried to interfere with her possession and enjoyment of suit property as such plaintiff filed suit in OS.No.4818/2005 for permanent 4 OS.No.2390/2010 injunction and the same was decreed on 29.6.2007. It is further alleged that the 1st defendant sold the suit property in favour of 2nd defendant under registered sale deed dtd.5.7.2001 without any lawful authority as such 2nd defendant will not get any title or possession over the suit property. Hence the suit.
3. The defendants 1 & 2 have resisted the suit by filing their separate written statements interalia contending as under:
The Defendant No.1 in his written statement admits the institution of OS.No.4818/2005 against him and has denied other plaint averments. It is contended that he executed the sale deed in favour of 2nd defendant on the basis of GPA executed by plaintiff and now 2nd defendant is the absolute owner in possession of the suit property.
4. The 2nd defendant contends that the plaintiff has filed to suit by suppressing materials facts and with malafide intention. It is further contended the suit is barred by limitation and she was not a party in OS.No.4818/2005 and the decree is in no way concerned to her. It is further contended that the plaintiff herself executed GPA in favour of 5 OS.No.2390/2010 1st defendant with the power of alienation to him and that she purchased the suit property for valuable consideration from the 1st defendant as agent of the plaintiff and hence the sale deed executed by the 1st defendant also binds the plaintiff and that the right and title over suit property is now vested with the 2nd defendant.
5. It is further contended that the suit is not valued properly and the court fee paid is insufficient. It is further contended that the plaintiff is not in possession of the suit property and mere declaration without seeking possession the suit is not maintainable. The 2nd defendant is the absolute owner in possession and enjoyment of the suit schedule property and pursuance of the same revenue records mutated to her name and she is paying taxes regularly. It is further contended that as the plaintiff tried to interfere with her peaceful possession and enjoyment, the 2nd defendant has filed OS.No.908/2011 before city civil court and the same is pending for consideration. Therefore on all these grounds the defendants have sought for dismissal of suit.
6. On the basis of the rival pleadings and contentions, my learned predecessor has framed the following issues:
6 OS.No.2390/2010(1) Whether plaintiff proves title over the plaint schedule property as pleaded in the plaint?
(2) Whether defendant proves of plaintiff giving General Power of Attorney in his favour on 10.11.1995 as pleaded in the written statement?
(3) Whether he further proves in furtherance of the GPA given to him by the plaintiff on 10.11.1995 he sold the schedule property in favour of defendant No.2 on 5.7.2001, under lawful authority of plaintiff?
(4) Whether the court fee paid is not proper and not correct?
(5) Whether plaintiff is entitled for declaration of title as prayed for?
(6) What order or decree?
7. On going through the pleadings it is found that the plaintiff has also pleaded her possession of suit property and even has sought for permanent injunction. But Issue No.1 & 5 does not covers the said pleadings and hence I am of the opinion that they are required to be recasted. Accordingly issue No.1 & 5 are recasted as under:
7 OS.No.2390/2010Recasted Issue No.1: Whether plaintiff proves her title and possession over the plaint schedule property as pleaded in the plaint?
Recasted Issue No.5: Whether the plaintiff is entitled for the relief of declaration and permanent injunction as prayed?
8. The plaintiff has got examined her GPA holder as PW1 and got marked Ex.P1 to P12 and closed her side. Despite granting sufficient opportunity the defendants have not adduced their evidence on their behalf.
9. During the course of arguments the learned counsel for the plaintiff vehemently argued that the plaintiff is admittedly owner of the suit property and is in peaceful possession and enjoyment. It was further argued that the 1st defendant took signatures of the plaintiff on the blank stamp paper and misused the same as GPA without her knowledge and consent. It was further argued that subsequently the plaintiff learnt that the 1st defendant has sold the suit property in favour of 2nd defendant on the basis of the fraudulent GPA and hence the said sale deed does not binds the plaintiff. It was also argued that the plaintiff never lost her possession over suit property and now the 2nd defendant is causing interference in the peaceful possession and enjoyment of the 8 OS.No.2390/2010 plaintiff. It was also argued that the defendants after framing of issues did not comply the orders of the court for settlement as required u/s.89 of CPC and hence this court has also striked off the defense taken by them.
10. My findings to the above issues are as under:
Issue No.1 : Partly in the affirmative
Issue No.2 to 4 : Does not survive for consideration
Issue No.5 : Partly in the affirmative
Issue No.6 As per final order,
for the following:
REASONS
11. Issue No.1: The plaintiff has asserted that she is the absolute owner in possession and enjoyment of the suit property. The 1st defendant has contended that plaintiff executed GPA in his favour on 10.11.1995 and in pursuance of the same he sold the suit schedule property in favour of 2nd defendant under a registered sale deed dtd.5.7.2001. With these rival pleadings and contentions, the parties went in trial.
12. The plaintiff got examined her Special Power of Attorney holder as PW1 and this PW1 in his evidence has spoken that plaintiff is his mother and sworn affidavit by way of his examination in chief on par with the allegations made in 9 OS.No.2390/2010 the plaint about the title of his mother over the suit schedule property. It is also the evidence of PW1 that the plaintiff is in possession and enjoyment of the suit property and there was an interference as such, she filed OS.No.4818/2005 and obtained decree of permanent injunction in her favour. In support of his oral evidence PW1 has got marked various documents as per Ex.P1 to P12. Ex.P1 is the Special Power of Attorney, Ex.P2 is the certified copy of sale deed dtd.28.7.1981, Ex.P3 to 5 are the encumbrance certificates, Ex.P6 is the endorsement, Ex.P7is the certified copy of judgment & decree, Ex.P8 is the copy of legal notice issued to 1st defendant revoking the GPA dtd.10.11.1995, Ex.P9 is the postal receipt, Ex.P10 is the postal acknowledgement, Ex.P11 is the public notice published in Sanjeyvani paper dtd.29.3.2005 and Ex.P12 is the endorsement issued by CMC, Kengeri. Interestingly the defendants 1 & 2 have not chosen to cross examine PW1. This is all the oral and documentary evidence placed on record.
13. As could be seen from the materials placed on record, plaintiff asserts that she is the absolute owner in possession and enjoyment of the suit property. PW1 in his evidence has also spoken to that effect. The evidence of PW1 is 10 OS.No.2390/2010 also supported by the certified copy of sale deed dtd.22.7.1991 as per Ex.P2 which was issued in favour of plaintiff in respect of suit property. Ex.P3 to 5 are the encumbrance certificates which also establish that even today suit property stands in the name of plaintiff. Ex.P7 is the certified copy of judgment in OS.No.4818/2015 in which a decree of permanent injunction was granted in favour of plaintiff. At this juncture if the written statements filed by the defendants are perused 1st defendant has not disputed the title of the plaintiff. On the other hand has come up with a case that the plaintiff herself executed the GPA in his favour to deal with the property. Though the defense of defendants is strike off by this court but the contentions taken in the written statement supports the case of the plaintiff in so for as her title over the suit property is concerned.
14. But now according to the 1st defendant, the plaintiff executed the GPA in his favour on 10.11.1995, authorizing him to sell the suit property. The 1st defendant has also contended that subsequently he sold the suit property in favour of 2nd defendant under registered sale deed dtd. 5.7.2001. Similar contentions are also taken by 2nd defendant in her written statement. The fact that the 1st defendant has 11 OS.No.2390/2010 sold suit property in favour of 2nd defendant on the basis of GPA is concerned, same is not in dispute. In fact plaintiff herself has challenged the sale deed dtd. 5.7.2001 standing in the name of 2nd defendant. But interestingly the plaintiff in her plaint has pleaded that 1st defendant misused her signature on the blank stamp paper and thereafter she came to know that the 1st defendant has created the GPA and that immediately by issuing notice, she cancelled the GPA. PW1 in his evidence has also spoken to that effect. But interestingly the plaintiff did not come before court to explain how under at what circumstances her signatures were obtained in the blank stamp papers and what made her to sign the blank stamp paper and handed over the same to 1st defendant. It is further pertinent to note that plaintiff has also not pleaded when and how she came to know about the existence of GPA in favour of 1st defendant. The GPA is dtd. 10.11.1995 and interestingly the plaintiff has pleaded that she subsequently cancelled the GPA by issuing legal notice and copy of which is also marked as Ex.P4. As stated supra, GPA is dtd. 10.11.1995 and the 1st defendant executed the sale deed on the basis of GPA in favour of 2nd defendant on 5.7.2001 and the legal notice as per Ex.P4 was issued by plaintiff on 27.3.2005 ie., almost 4 years after execution of the sale deed by 1st defendant in favour of 2nd 12 OS.No.2390/2010 defendant by acting on the basis of the GPA. Therefore there is no evidence placed on record by plaintiff to show that she cancelled or revoked the GPA prior to the execution of the sale deed by him in favour of 2nd defendant ie., before 5.7.2001. On the other hand this GPA was acted upon by 1st defendant by executing sale deed in favour of 2nd defendant. Therefore now plaintiff cannot contend that the 1st defendant had no authority to execute the sale deed in favour of 2nd defendant and that she also cannot contend her title over the suit property.
15. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified as if done by him. Now as per admitted pleadings in the plaint and the documents produced by plaintiff, the power of attorney dtd. 10.11.1995 was in force as on the date of execution of sale deed by 1st defendant in favour of 2nd defendant. And by virtue of the execution of sale deed by the 1st defendant in favour of 2nd defendant on the basis of GPA, plaintiff has lost her title over the suit schedule property. And the acts done by the 1st defendant is also binds on the 13 OS.No.2390/2010 plaintiff. It is pertinent to note that the plaintiff did not took steps for revocation of the GPA prior to the execution of sale deed by the 1st defendant in favour of 2nd defendant and she slept over her alleged right and failed to act at the earliest point of time. Therefore the plaintiff is also guilty of latches and now plaintiff cannot contend that even now she is the owner of the suit property.
16. So for as possession of the suit property is concerned, plaintiff has pleaded that she has been in possession and enjoyment of the suit property. PW1 in his evidence has also spoken to that effect and has also got marked various documents including the copy of the judgment in OS.No.4818/2005 in which possession of the plaintiff was upheld and relief of permanent injunction was granted in her favour. Therefore this Ex.P7 coupled with other documents supports the case of the plaintiff about her possession and enjoyment over suit property. Even otherwise, there is no contra material placed on record to show that plaintiff after execution of GPA in favour of 1st defendant had also handed over possession of suit property to him and that when actually plaintiff was divested of her possession over suit property. Therefore in the absence of any contra material placed on 14 OS.No.2390/2010 record, I have no hesitation to hold that plaintiff has failed to prove her title over the suit property, but able to establish her possession and enjoyment over suit schedule property. Hence I record my finding on this issue partly in affirmative and partly in negative.
17. Issue Nos.2 to 4: Defendant No.1 & 2 in their written statement have contended that plaintiff executed the GPA in favour of 1st defendant and on that basis 1st defendant sold the suit property in favour of 2nd defendant under registered sale deed dtd. 5.7.2001 and they have also contended that suit is not valued properly and the court fee paid is insufficient. Interestingly during the pendency of the suit, defense of the defendants was strike out by my learned predecessor vide order dtd. 24.2.2014. Therefore these issues does not survive for consideration.
18. Issue No.5: Plaintiff has sought for declaration of her title and permanent injunction against the defendants from interfering in her possession and enjoyment of suit property. Plaintiff has failed to establish her title over the suit property as on the date of suit. Even otherwise, 1st defendant sold the suit schedule property on the basis of GPA in favour 15 OS.No.2390/2010 of 2nd defendant on 5.7.2001. The plaintiff has produced Ex.P4 wherein she is stated to have revoked the GPA executed in favour of 1st defendant which is dtd. 27.3.2005, which is almost 4 years from the date of execution of sale deed. And further plaintiff even after issuing notice under Ex.P4 on 27.3.2005, failed to initiate action by challenging the sale deed at the earliest point of time. On the other hand plaintiff filed this suit on 29.5.2009 ie., almost 4 years after issuance of notice Ex.P4. By virtue of Ex.P4 plaintiff has knowledge of existence of sale deed dtd.5.7.2001 on the date of issuance of notice dtd. 27.3.2005. Therefore plaintiff ought to have taken action in challenging the sale deed at the earliest point of time. But however plaintiff is able to establish her possession and enjoyment over suit property. Therefore plaintiff is not entitled for the relief of declaration but is entitled for the relief of permanent injunction. Hence I record my finding on the above issue partly in affirmative and partly in negative.
19. Issue No.6: For the foregoing discussions and reasons stated therein suit of the plaintiff succeeds and deserves to be decreed in part. In the result I proceed to pass the following:
16 OS.No.2390/2010ORDER Suit of the plaintiff is hereby decreed in part with costs.
The defendant No.2, her agents and servants are hereby permanently restrained from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff.
The suit of the plaintiff for the relief of declaration is hereby dismissed.
Draw decree accordingly.
[Dictated to the Judgment Writer on computer, computerised, and print out taken by him, corrected and then pronounced by me in open court, this day the 29th June 2016].
(MUSTAFA HUSSAIN.S.A.) XVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU ANNEXURE
1. No.of witnesses examined on behalf of plaintiff/s:
PW1 : S.Tejus 17 OS.No.2390/2010
2. No.of documents marked on behalf of plaintiff/s:
Ex.P1 : Spl.Power of Attorney
Ex.P2 : Certified copy of sale deed dtd.28.7.1981.
Ex.P3 to 5 : Encumbrance certificates.
Ex.P6 : Endorsement
Ex.P7 : Certified copy of judgment & decree
Ex.P8 : Copy of legal notice issued to 1st defendant
Revoking the GPA dtd.10.11.1995.
Ex.P9 : Postal receipt
Ex.P10 : Postal acknowledgement
Ex.P11 : Public notice published in Sanjeyvani paper
Dtd.29.3.2005
Ex.P12 : Endorsement issued by CMC, Kengeri.
3. No. of witnesses examined on behalf of defendant/s:
- NIL -
4. No. of documents marked on behalf of defendant/s:
- NIL -
XVIII Addl. City Civil Judge Bangalore City.
18 OS.No.2390/2010
Judgment pronounced in the
open court vide separate
judgment. The operative portion
of judgment reads thus:
ORDER
Suit of the plaintiff is hereby
decreed in part with costs.
The defendant No.2, her
agents and servants are hereby
permanently restrained from
interfering with the peaceful
possession and enjoyment of the
suit schedule property by the
plaintiff.
The suit of the plaintiff for
the relief of declaration is hereby
dismissed.
Draw decree accordingly.
XVIII Addl.C.C. & S.J.,
Bangalore